HASSAN HEMEDI CHAMSHAMA AND OTHERS VERSUS OVERSIGHT COMMITTEE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MAIN REGISTRY AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 27443 OF 2024 IN THE MATTER OF APPLICATION FOR ORDERS OF MANDAMUS, CERTIORARI AND PROHIBITION IN THE MATTER OF DECISION OF THE CHAIRPERSON OF THE OVERSIGHT COMMITTEE OF THE PREVENTION AND COMBATING OF CORRUPTION BUREAU (PCCB) AND IN THE MATTER OF THE DECISION OF THE PREVENTION AND COMBATING CORRUPTION BUREAU (PCCB) BETWEEN HASSAN HEMED CHAMSHAMA……..………….……..………………..1ST APPLICANT HAMISI HASSAN MKAO …………………….…….…………………….2ND APPLICANT IBRAHIM HERRITH LIBAN……………………....…………………….3RD APPLICANT VERSUS CHAIRMAN OF THE OVERSIGHT COMMITTEE OF THE PREVENTION AND COMBATING OF CORRUPTION (PCCB)…………….…………………….…….…..1ST RESPONDENT THE PREVENTION AND COMBATING OF CORRUPTION (PCCB) ……………………….……….……………….2ND RESPONDENT THE ATTORNEY GENERAL……………………..……………………..3RD RESPONDENT 1|Page RULING Date of the last Order: 06/12/ 2024 Date of the Ruling: 18/02/ 2025 LONGOPA, J.: This application for Judicial review has been preferred under Section 17(2), 18(1) Of the Law Reform (Fatal Accident and Miscellaneous Provisions) Act (CAP 310 [RE 2019], and Rule 2, 3, 4 and 5 of the Law Reform (Fatal Accident and Miscellaneous Provisions) Judicial Review Procedure and Fees) Rule 2014. The applicants, Hassan Hemed Chamshama, Hamisi Hassan Mkao and Ibrahim Herrith Liban, were the employees of the 2nd respondent as investigation officers since 7th August 2014, 30th July 2014 and 28th February 2001 for the 1st, 2nd and 3rd applicants respectively until they were terminated on diverse dates in 2023. It is on record that during their employment with the 2nd respondent, the applicants were elected to serve PCCB SACCOS Limited whereby 1st and 3rd applicants were Board members and 2nd applicant worked as an accountant. The applicants’ tenure at PCCB 2|Page SACCOS Limited expired on 10th October 2022 for the 1st and 3rd applicants whereas they were deployed to 2nd respondent’s offices. Sometimes on April 2023, the 2nd respondent summoned the applicants on ground that she is conducting criminal investigation allegedly on misusing of fund at PCCB SACCOS Limited including allegation of obtaining money by false pretense. The applicants recorded their respective cautioned statements while continuing with their normal routine work. In course of the year in 2023, the applicants received letters informing them that each of them would not be promoted due to pendency of both criminal and disciplinary investigations. Sometimes in October 2023, the applicants were served with Disciplinary Charges and they all appeared before the Disciplinary Committee. It is stated that upon conclusion of the disciplinary hearing, each of the applicants was terminated from employment of the 2nd respondent. According to applicants, they requested for the proceedings and all documentations on termination but nothing availed timely. Once preferred appeals to the Chairperson Oversight Committee (1st respondent) 3|Page such respective appeals were denied for being out of time. As such, the applicants preferred to challenge the decision through Judicial Review on the following orders, namely: 1. This Honourable Court be pleased to grant an order of Certiorari for quashing and removing from the record the decisions of the Chairperson of the Oversight Committee dated 27th March 2024, and 20th February 2024 denying the appeals of the 1st, 2nd and 3rd applicants respectively. 2. That, this Honourable Court be pleased to grant an order of Certiorari for quashing and removing from the record the decisions of the Prevention and Combating of Corruption Bureau (PCCB) which was made through its Director General which was for terminating the employment of the 1st, 2nd and 3rd applicants respectively. 3. This Honourable Court be pleased to grant an order of mandamus to compel the 1st and 2nd Respondent to act 4|Page according to the requirements of the laws, the outstanding principles of natural justice and the constitutional rights of the applicants. 4. This Honourable Court be pleased to grant an Order of prohibition against the respondents for not interfering with the employments of the applicants without following laws and procedures. 5. Costs of this Application to be borne by the Respondents. The application was supported with a joint affidavit of the applicants and a statement while the same is challenged by the respondents through the counter affidavit of one Ayub Hamis Akida, Director of Administration and Human Resource Management of the 2nd respondent. On 6th December 2024, the parties appeared for oral hearing of the application. The applicants appeared before this Court enjoying the legal services of Mr. Isaac Nassor Tasinga, learned advocate and the 5|Page respondents enjoyed the legal services of Mr. Omary Ngatanda, learned State Attorney. Mr. Isaac Nassor Tasinga, learned advocate stated that given that 1st and 2nd respondents are two distinct authorities whose decisions are challenged, one being appellate body of the other subordinate disciplinary authority, applicants expected filing of two counter affidavits one for each. The counter affidavit by Ayub Hamis Akida who is the principal officer of the 2nd respondent is challenged vehemently that Paragraph 26 that responds to contents of Paragraphs 43 to 45 of the affidavit in support of the application is violative of the law as deponent is not an officer from the 1st respondent thus incompetent and introduced hearsay evidence in the counter affidavit making the counter affidavit defective. It was argued that the only proper way would be to have second counter affidavit of an officer from the Office of the Chairman of the Oversight Committee who participated in the process relating to the appeal. The applicants cited the case of Susan Ngondo versus Anna 6|Page Samwel Urassa, Civil Application No 606/01 of 2021 High Court of Tanzania Main Registry at Dar es Salaam (TANZLII) to illustrate that affidavit mentioning another person is hearsay unless such other person swears/ affirms an affidavit. Thus, the applicants prayed for expunging from records evidence regarding 1st respondent making the counter affidavit remain with the facts concerning the 2nd respondent only. On the main application, the applicants are praying for prerogative orders of certiorari, mandamus and prohibitions against the decision of the 1st respondent that denied the appeal of the applicants. The applicants adopted the contents of all the statement setting out grounds, joint affidavit in support of the application and rejoinder affidavit. It was submitted that the applicants as employees of the 2nd respondent were governed by the Public Service Act and its regulations and the Prevention and Combating of Corruption Act, Cap 329 R.E. 2019 and the Prevention and Combating of Corruption Regulations, GN No 300 of 2009. 7|Page It was argued that the applicants were seconded to PCCB SACCOS Ltd operating independently and in compliance with the cooperative societies’ laws and regulations namely “Masharti ya Chama cha Ushirika cha Akiba na Mikopo cha PCCB, Toleo la Pili la Mwaka 2020”; the Cooperative Societies Act, 2013 and the Cooperative Societies Regulations, GN No 272 of 2015. The 1st and 3rd applicants were Members of the Board while 2nd applicant was an accountant from 2016 to 2022 when they successfully completed their tenure. Accordingly, applicants argue that they were only bound by laws and regulations on cooperative societies not otherwise. It was six months later of their successfully completion of tenure at the PCCB SACCOS Ltd when the 2nd respondent summoned them and informed on allegations that enquiry on the massive misappropriation of the PCCB SACCOS Ltd funds during their tenure at the PCCB SACCOS Ltd was being conducted thus an enquiry PCCB/HQ/ENQ/03/2023/0P.4 was initiated. 8|Page Further, the applicants were charged and subjected to disciplinary charged sometimes in June 2023. According to the applicants, apart from the criminal proceedings there was also the disciplinary charges/ hearing being undertaken whereas each of the applicants appeared at a separate Disciplinary Hearing Committee. The applicants requested for the Investigation report but the same was not availed. The appellants challenged the composition of the respective Disciplinary Hearing Committee allegedly that they have no members apart from Chairman and Secretary as well as lack of gender representation. It is on record that each of the applicants was terminated from employment upon conclusion of disciplinary hearing. They were dissatisfied with the decision and they informed the 2nd respondent on their intention to challenge the decision thus applied for the proceedings and report to facilitate preparation of the appeal. However, applicants alleged that the records of the disciplinary hearing were not availed to timeously. It was averred that later on the applicants were informed to collect the records of the disciplinary hearing, arrested, detained and arraigned to 9|Page the Resident Magistrates Court of Dar es Salaam at Kisutu in Economic Case No. 51 of 2023 in which the applicants are still facing trial. As per applicants’ averment, the applicants were granted bail and each of them preferred an appeal against the decision of the 2nd respondent to the Chairperson of the Oversight Committee under Regulation 45 of the PCCB Regulations, 2009. The Chairman of the Oversight Committee dismissed the appeals summarily for being preferred out of time. It is the dismissal of the appeal that aggrieved the applicants thus institution of this application for Judicial Review to challenge the final and conclusive decision of the Chairperson of the Oversight Committee. The application is grounded on several legal issues namely that: First, the 1st respondent did consider matters pertinent to the appeal which prejudiced rights of the applicants. These matters are that: One, the decision of the 2nd respondent did not disclose any evidence that the applicants were availed the decision within 14 days of the decision. Two, the right of the applicants to get the proceedings and record of the 2 nd respondent prior to filing of the appeal was not availed. Three, the laws and regulations stated in the proceedings to categorically apply to the case 10 | P a g e were not observed. For instance, the right to be supplied with the proceedings as per Regulation 46(a), (b), (c) and (d) of the PCCB Regulations, 2009 and Regulation 48(7) of the Public Service Regulations calling for availing proceedings on conclusion of the enquiry. Proceedings were not availed thus these provisions were violated. The case of Robinson Mosha and 3 Others versus the Inspector General of Police and the Attorney General, Misc. Civil Application No 9432 of 2024 High Court of Tanzania Main Registry at Dar es Salaam (TANZLII) was cited to reiterate that it is mandatory for employee to get the disciplinary proceedings. This was further restated in the case of Enza Zaden Africa Ltd versus Edwin Kasena, Civil Appeal No 427/ 2021 [2023] TZCA 17733 (October 2023) where the Court of Appeal emphasized on the importance of availing the proceedings. Second, the applicants were incriminated to the criminal charges thus the disciplinary appeal out to have been stopped determination against the decision of the 2nd respondent to pave the determination of pending criminal charges. This was in accordance with Regulations 50 (b) of the 11 | P a g e Public Service Regulations that requires the suspension of disciplinary hearing to wait for the criminal case to be finalised. Third, the laws that govern the employment and disciplinary of the applicants have no provisions providing for extension of time. The laws have accommodated justice as Regulation 61(6) of the Public Service Regulations empowers the appellate body discretionary to accept the appeal out of time. It was argued that prevailing circumstances in this application necessitated the appellate body to consider reasons for special circumstances of delays in filing of the appeal out of time. It was informed that Section 30(a) of the Public Service Act provides for paramountcy of the Public Service Act when and where there is conflict regarding employment and disciplinary matter of a public service between two laws. It was submitted that on record there is no counter affidavit to contrast all these special circumstances of special nature to the applicants. As such, the applicants prayed that this Court be pleased to quash the proceedings and the decision of the 1st respondent vide an order of 12 | P a g e certiorari as the same did not avail the applicants an opportunity to be heard. Also, it was the applicants’ prayer for order of mandamus be issued to direct the 1st respondent to hear the appeal of the applicants on merits as if the opportunity is availed to hear them, the 1st respondent would evidently note the illegalities and irregularities that the 2nd respondent committed as follows, namely: First, the 2nd respondent had no jurisdiction to discipline the applicants using the employment laws of the 2nd respondent i.e. the PCCB Act and its Regulations for these personnel were deployed to PCCB SACCOS Ltd. The affairs of the SACCOS are governed by the special procedures under the cooperative laws and its regulations applicable to all SACCOS. Regulation 89(2) of the Cooperative Societies Regulations, GN 272 of 2015 and section 134 of the Cooperative Societies Act provide for dispute resolution and address inequities of SACCOS leaders and employees. Thus, application of the PCCB laws and regulations by the 2nd respondent occasioned serious miscarriage of justice to the applicants as there were special/specific laws under the cooperative societies legal regime for dealing with offending officers in the cooperative societies. 13 | P a g e Other aspects relating to lack of jurisdiction by the 2nd respondent to discipline applicants relate to the nature of the offence namely obtaining money by false pretence contrary to section 302 of the Penal Code thus police case. Further, the 2nd respondent acted unreasonably by preferring both disciplinary and criminal charges at the same time as an Enquiry was initiation of the criminal proceedings thus contravening that law against double jeopardy. As such, the 2nd respondent ought not to proceed with disciplinary charges as the criminal proceedings were on going since 27th April 2023. Second, the 1st respondent would have discovered the variations between the proceedings and decision of the 2nd respondent to terminate the applicants. The variations are well reflected in Annexure HHI 16 where the applicants have stated existing variations between the proceedings and the decision. Third, non-observance of the rules of natural justice would have been detected by the 1st respondent as there was not investigation report 14 | P a g e whether in form of audit report of the PCCB SACCOS Ltd or otherwise. Absence of the same violated Regulation 37(2) of the PCCB Regulations that reiterates that charge is only prepared after conclusion of preliminary investigation. This requirement features in the Public Service Regulations and supported by the principle in Enza case (supra). Fourth, the disciplinary proceedings had no prosecutor at all the Complainant was the same PCCB, the 2nd respondent and the one who Chaired the Committee. Fifth, there were irregularities and illegalities namely (a) absence of the investigation report (b) the committee was without members except the Chairman and secretary (c) the decision was against the evidence on record (d) the proceedings contravened the Public Service Regulations on being gender sensitive as it covered only single gender against Regulation 46; and (e) that the Disciplinary Committee Chairman should have been sourced from another institution as per Regulation 46 of the Public Service Regulations. All these aspects would have been raised at the appellate body. 15 | P a g e In conclusion, the applicants prayed for orders that 1st respondent hear the applicants on merits as there were no solid reasons to dismiss the appeal at all. Second, and in alternative, this Court be please to nullify the decisions of the 1st respondent and 2nd respondents respectively thus order the respondents to reinstate the applicants forthwith in their respective employment positions/ ranks with the 2nd respondent without the applicants’ loss of any entitlements. On the other hand, Mr. Omary Ngatanda, learned State Attorney objected all the prayers made by the applicants. The respondents adopted contents of the whole counter affidavit and reply statement to form part of the submission. The respondents argued that basis of the preliminary objection on counter affidavit was based on the decision of Susan Ngondo where in her affidavit she stated to have received information from several persons including the Court personnel but no supporting affidavits were attached. The Court held correctly that an affidavit mentioning another person, that person should swear as well. It was argued that the counter affidavit of Ayub Hamis Akida a Director of Administration and Human Resource Management reveals that 16 | P a g e he made a joint counter affidavit for all the respondents and rest of the paragraphs do not mention any other person. Thus, Susan Ngondo’s principle therefore is distinguishable as the circumstances are different from this case at hand. In the second limb, it was further argued that the PCCB Regulations, GN No 300 of 2009 provides for the Oversight Committee and other disciplinary machineries. It is submitted that the 1st and 2nd respondents are not distinct but they are disciplinary machinery found on the same/ single entity where the 1st respondent is within the 2nd respondent. Regulations 3(a) and 4(1) of the PCCB Regulations reveal existence of the Committees including the Oversight Committee within the structures of the 2nd respondent for purposes of ensuring the smooth functioning of the 2nd respondent. Regulation 4 provides for the composition of the Oversight Committee to include Chief Secretary as the Chairperson, the Permanent Secretary State House, Director General of the PCCB, Personal Secretary to the President and the Director of Administration and Human Resource of the Bureau who shall be the Secretary of the Committee. The 17 | P a g e deponent of the counter affidavit being the Secretary of the Committee in the 1st respondent was fully aware of the matter as the Secretary to the Committee. Thus, the respondent argued that preliminary objection therefore had no merits. The respondents urged this Court to find that counter affidavit by the deponent was proper before the Court by virtue of section 9 of the Oaths and Statutory Declaration Act Cap 34 R.E. 2019 calls for this court to deem such affidavit as proper and valid. Thus, the respondents invited this Court to dismiss the preliminary objection for being devoid of merits. With regard to the main application, it was submitted that the application has no basis at all as such this application deserves nothing other than dismissal only. In total, all five prayers reflected in the Chamber summons and Paragraph 6 of the Statement are vehemently disputed by the respondents that this Court has no mandate whatsoever to address them. The disputed orders are with regard to certiorari to quash and remove from records the decision of the 2nd respondent and that of mandamus to compel the 1st and 2nd respondents to act in accordance with 18 | P a g e the law and prohibition against the respondents from interfering with the employment of the applicants with the 2nd respondent. An invitation to exercise powers of the court to quash the decision of the 2nd respondent as contained in Paragraph 6(ii) of the Statement is not proper as this Court has no jurisdiction to do so. This is in accordance with the settled principle of law set out in the case of John Mwombeki Byombalilwa vs the Regional Commissioner and Regional Police Commander Bukoba [1986] TLR 73, where the Court stated that judicial review cannot be granted where alternative remedies are available. Impliedly, the decision challenged in the judicial should be final decision and there should not be any other administrative authority that can review/ revise such decision. The applicants are challenging the decision of the 2nd respondent, PCCB as an institution. That is not the final authority for employment and disciplinary matters of the applicants. Under Regulation 45(1) of the PCCB Regulations there is another avenue to challenge the decision of the 2nd respondent as the law allows 19 | P a g e the applicants to challenge the decision of Director General on discipline of employees. Such decision could be challenged to the Chairman of Oversight Committee and under Regulation 45(2), the Chairman is empowered to allow or dismiss the appeal or uphold the findings of the disciplinary authority. Therefore, all the allegations against the 2nd respondent’s decision in this Court are not proper as the same ought to have been challenged to the Chairperson of the Oversight Committee. The respondents cited that paragraph 31, 34 and 43 of the joint affidavit in support of the application revealing that there was a decision of the 2nd respondent which aggrieved the applicants thus requested for the proceedings and decision to appeal to the Chairperson of the Oversight Committee. It was argued that the law proscribes the applicants to challenge the decision of the 2nd respondent through judicial review in circumstances where there existed an avenue to challenge such decision via an appeal. It is against the law as per principle stated in the case of John Mwombeki Byombalilwa for a party to prefer an application for judicial review while he had other alternative remedy. 20 | P a g e As such this court lacks jurisdiction to entertain the application challenging the decision of the 2nd respondent by way of judicial review. As for relief in Paragraph 6(iii) relating to mandamus to compel the 1st and 2nd respondents which falls within the same ambit where the court lacks jurisdiction as the decision of the 2nd respondent is not amenable to judicial review. It was argued that an order of mandamus is only issued on satisfaction of five criteria as set out in the case of John Mwombeki Byombalilwa case to include:(a)That the applicant must have performance by the respondent and the respondent must have refused to perform; (b) The respondent as public officer must have a public duty perform as given by the law; (c) The duty should not be a duty solely owed to the State but a duty owed as well to the individual citizens; (d)The public duty posed should be of an imperative nature and not discretionary; (e) The applicant must have a locus standi; and (f)There should not be any other alternative remedy to the applicant. With regard to prayer of mandamus to compel the respondents to act in accordance with the requirements of law, the natural justice principles 21 | P a g e and constitutional rights, respondents argued that such order is untenable. The main question at this juncture is which laws are the applicants praying for the 1st and 2nd respondents jointly to perform given that the 1st and 2nd respondents are single institution. The 1st and 2nd respondents have specific duties to perform but the applicants have not stated which duties were not performed. The 1st respondent being a Chairperson of the Oversight Committee has duties to chair all the meetings of the Oversight Committee as per Regulation 4(1), and under Regulation 45(1) he is empowered to receive and entertain the appeals against the decisions of the Director General of PCCB. Duties of the 2nd respondent are stipulated in Section 7 of the Prevention and Combating of Corruption Act, Cap 329 R.E. 2019. However, the affidavit is silent on neglect by 2nd respondent to perform any of the duties that Act for which the applicants demanded to be performed by PCCB and it did refuse to do so. There was nothing demanded by applicants to be performed and refused by the 1st respondent. 22 | P a g e In respect of the order of prohibition contained in paragraph 6(iv) of the joint affidavit, it was submitted that such order is inappropriately requested for this court. The respondents implored this court to be persuaded by the decision in the case of People vs Board of Education of Chicago 323 US that provides for conditions of prohibition order that it is only applicable in preventing the authority from exceeding its jurisdiction; or acting in contravention of the principles of natural justice; or where something unlawful is to be committed on performance of certain function. According to the respondents, the court can only issue order/writ of prohibition where something remains to be done and which can be prohibited so that to prevent the same from being done. The order is therefore appropriate before an act being done thus prevent the happening of an act not after an act has been done. It was argued that in this application, the applicants have been terminated and confirmed by the appellate authority upon dismissal of their appeal thus prohibition of the respondents from interfering with employment of the applicants has been overtaken by events. 23 | P a g e The respondents argued that this Court is invited to prohibit all the respondents from interfering with the employment of the applicants. However, in Paragraph 31 of the affidavit, the applicants have stated categorically that employments of the applicants were terminated prior to institution of this application for judicial review. Simply, there is nothing to prohibit as there is no existing employment relationship between the applicants and 2nd respondent. Finally, with regard to costs, it was submitted that this application for judicial review arose from employment dispute between the applicants and 2nd respondent whereas a general principle is that there are no costs awardable in employment disputes. It was submitted that for those three specific reliefs that are prayed by the applicants are not maintainable as they do not meet the criteria for application for judicial review. According to the respondents, the only remaining relief is that relating to an order to quash the decision of the Chairperson of the Oversight Committee. The 1st respondent’s decision on the disciplinary matters of the PCCB employees is final thus can be challenged by way of 24 | P a g e judicial review. The applicants prayed for the order of certiorari to quash the decision for denying the applicants’ appeals. The submission of the counsel for the applicants was that the 1st respondent ought to have considered all the stated factors by the applicants. The principle in the case of Raheli Mbuya versus Minister of Labour and Youth Development and Another, Civil Appeal No 121 of 2005 [2008] TZCA (TANZLII), the Court of Appeal stated that order for certiorari can be issued: (a) To correct errors of jurisdiction as when the inferior court or tribunal acted without jurisdiction or in excess of jurisdiction or failed to exercise it; (b) When the inferior court or the tribunal acts illegally in exercise of its undoubtedly jurisdiction i.e. without giving the opportunity to the parties to be heard or violating the principles of natural justice; (c) The powers/ role of the court is not appellate but supervisory body whereas one consequence of this court cannot review facts in the inferior tribunal eventhough they are erroneous. This principle is that the Court exercising judicial review cannot rehear the matter as would defeat the legislative intention that did not confer upon the appellate powers to the Court in that particular matter; and (d)The order of certiorari 25 | P a g e may be issued to correct an error of law. There must be something more than a mere error. It must be one on the face of record. It was further submitted that this is position of the law in Tanzania as enumerated in the Sanai Mirumbe and another [1990] TLR 54. Thus, the Court of Appeal reiterated at page 7 of the decision that certiorari can only be issued on limited circumstances. The respondents emphasized that the court in orders of certiorari is not an appellate but supervisory considering the jurisdiction of the body making the decision. Annexure HHI-18 is the collectively decision of the Chairperson, 1st respondent which dismissed the appeal for being preferred beyond time required by the law. The appeal must be preferred within 14 days of notification of the decision. The letters indicate that the appeal was preferred after expiry of 140 days for the 1st applicant and 71 days for 2nd and 3rd applicants respectively. It was emphasized that 1st respondent acting otherwise from dismissing the appeal preferred beyond the required time would have been 26 | P a g e acting ultra vires as the mandate to act and determine the appeal is limited to when the appeal was preferred within 14 days of notification of the decision. Entertaining the appeals for the matters preferred beyond time would be in excess of the jurisdiction of the Oversight Committee. The respondents stated that though there are certain justifications that applicants tried to convince this court, it was respondents’ submission that applicants ought to have requested for extension of time prior to filing the appeals out of time as the appeal requires stating only the grounds for appeal which form basis of challenging a decision. It was noted that both the Public Service Act and the Public Service Regulations do not absolve the delay. They govern public service generally and enumerate disciplinary procedure from the institutional level then appeals to the Public Service Commission and finally to the President of the United Republic of Tanzania. Accordingly, it is settled position that where there is specific laws and regulations, such those specific laws will prevail in the matters of 27 | P a g e disciplinary authority. It was in exercise of such legal principle that the applicants went to Chairperson of Oversight Committee and finally tried to appeal to the President of the United Republic but the attempts failed. It was stated that all the provisions cited in the Public Service Act and Regulations are correct provisions but they are inapplicable to the matter at hand. As such, the respondents urged this Court to find that the application has no basis and thus the same deserve dismissal for being devoid of merits. In short rejoinder, the applicants reiterated that affidavit of the respondents named the Oversight Committee and PCCB as distinct bodies in respect of disciplinary action against the applicants thus another supporting counter affidavit was necessary. Rule 45 of the PCCB Regulations requires that the appeal shall be to the Chairperson of the Oversight Committee thus in absence of an affidavit from the Office of the Chairperson of the Oversight Committee makes the affidavit defective in paragraphs relating to the 1st respondent. It is submitted that the decision to dismiss the appeal is not clear. 28 | P a g e With regard to the powers/duties of the 2nd respondent, it was submitted that the duties are not restricted to the ones provided for in the Prevention and Combating of Corruption Act. There are other diverse duties as stated in the other laws and regulations. The applicants concurred on correctness of cited cases that this court acts in the supervisory position and that the applicants acted within the parameters of the stated principles in John Byombalilwa and Rahel Mbuya cases. All these criteria are within this application for judicial review. Further, with regard to reasons for the delay, it was submitted that there are no procedures for extension of time. In Annexure HHI-17 discloses the reasons for delay to act timely. Meanwhile, regarding the specific law i.e. the Prevention and Combating of Corruption Act and its regulations and those of the Public Service Act and its regulations, it was submitted that the latter must prevail as they have overriding effects in cases of conflict between the two sets of law. As such, it was reiterated 29 | P a g e that there is safety valve in the Public Service Act and the Public Service Regulations that require the appellate body to allow appeal out of time. It is further reiterated that the proceedings were crucial to the applicants before appealing thus failure to adhere to the same violated the principles of natural justice. It was the applicants’ prayer that this court to uphold the application as it is meritorious. Having heard the rival submissions by the parties, it is pertinent for this Court to address whether the application has merits or otherwise in context of the available records in support of the application. As the applicants objected the counter affidavit in opposition to the application, it is of paramount importance to address about such objection prior to addressing the main application. The preliminary objection by the applicants on the respondents’ counter affidavit prefaced the parties’ submissions. 30 | P a g e It is a settled law that for a matter to amount to preliminary objection such matter must be on point of law. It must be sufficient to cater for issues of lack of jurisdiction, matter being precluded by time limitation as well as issues relating to submitting the case to arbitration as per agreement between the parties. It is fundament aspect that cannot be left unattended as it goes to the root of the case and sometimes it can dispose of the case. In the case of COTWU (T) OTTU Union and Another vs Hon. Iddi Simba, Minister of Industries and Trade and 7 Others (Civil Application 40 of 2000) [2000] TZCA 14 (30 June 2000) (TANZLII), at page 3, the Court of Appeal stated that: In Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E.A. 696 where the Court considered what constitutes a preliminary objection. The Court said at p. 700 DE: - a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued 31 | P a g e as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. The full bench of the Court of Appeal in the case of Karata Ernest and Others vs the Attorney General, Civil Revision No 10 of 2010, Court of Appeal of Tanzania (Unreported), at pages 7-8, the Court illustratively stated that: At the outset we showed that it is trite law that a point of preliminary objection cannot be raised if any fact has to be ascertained in the course of deciding it. It only “consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings.” Obvious examples include: objection to the jurisdiction of the court; a plea of limitation; when the court has been wrongly moved either by non-citation or wrong citation of the enabling provisions 32 | P a g e of the law; where an appeal is lodged when there is no right of appeal; where an appeal is instituted without a valid notice of appeal or without leave or a certificate where one is statutorily required; where the appeal is supported by a patently incurably defective copy of the decree appealed from; etc. All these are clear pure points of law. The nature of preliminary objection if upheld goes to the root of the case. That is the reason for same being determined prior to hearing the parties on merits. In ABSA Bank Tanzania Limited & Another vs Hjordis Fammestad (Civil Application No. 695/16 of 2022) [2024] TZCA 246 (26 March 2024), at page 4, the Court of Appeal stated that: It is settled in our jurisdiction, that when an application is encumbered with a preliminary objection, it should first be resolved before hearing the application on its merits. 33 | P a g e In the instant application, the preliminary objection challenges the validity of the counter affidavit. The applicants are of the settled view that such counter affidavit is violative of law governing affidavits. It touches on legal issues as affidavits are governed by the law. For instance, Order XIX Rule 3 of the Civil Procedure Code, Cap 33 R.E. 2019 is articulate on affidavits evidence. It states that: 3.-(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted. Under the Judicial Review Rules, Rule 13 provides for the right to file evidence in response to the application for judicial review in form of a Counter affidavit. However, the law does not specify exactly as to who should depone such affidavit. It states that: 13. Any evidence filed in reply to the application for an order for judicial review shall be by way of counter 34 | P a g e affidavit and a statement in reply and filed within fourteen days from the date of service. However, it is settled view of this Court that by virtue of Rule 8(3) and (4) of the Judicial Review Rules by extension allows an affidavit to be deponed by a party or an authorised officer of the party to the application. Indeed, this would entail an authorised officer of the respondent who can depone a counter affidavit on that behalf. Further, it is a law that where the affidavit is offending the law the court is duty bound to consider the whole affidavit and expunge all the offending provisions. In case the remaining affidavit suffices to present a statement of that party then the rest of the affidavit shall be severed from the expunged paragraphs. In the case of MANTRAC Tanzania Limited vs Goodwill Ceramics Tanzania Limited (Civil Appeal No.269 of 2020) [2023] TZCA 17506 (21 August 2023), the Court of Appeal at pages 11 and 12 stated that: However, with respect, we do not agree with the course taken by the trial Judge in disregarding the witness 35 | P a g e statement without considering and determining if the remaining paragraphs of the affidavit could sustain the witness statement. We say so because it is settled law that where the offensive paragraphs of the affidavit are inconsequential, they can be expunged leaving the substantive parts of the affidavit remaining intact. Having thoroughly perused the submissions by the parties the main focus is that Paragraph 26 of the Counter affidavit that have averments addressing Paragraphs 43, 44, and 45 of the affidavit in support of the application. Essentially, the stated paragraphs relate to the submissions, consideration and decision of the Chairman of Oversight Committee in respect of three appeals preferred by the 1st, 2nd and 3rd applicants challenging the decision of the 2nd respondent, the Director General of the Prevention and Combating of Corruption Bureau (PCCB) to terminate the employment of the applicants. 36 | P a g e Paragraph 26 of the Counter affidavit refuted all the allegations averred in Paragraphs 43, 44 and 45 except that the Chairman of Oversight Committee did on 20th February 2024 communicated to the applicants that their appeal was preferred out of time; that applicants were supposed to file their appeal timely within 14 days of the decision but they failed resulting into the 1st respondent dismissing the appeals for being preferred beyond time. It is noted that the Director of Administration and Human Resource Management of the 2nd respondent is the one who deponed the impugned counter affidavit. Under Regulation 4(1) of the Prevention and Combating of Corruption Bureau Regulations, 2009 GN No 300 of 2009, the composition of the Oversight Committee is categorically enumerated including the Chairman of the Oversight Committee, who is the Chief Secretary and the secretary to the Committee, who is the Director of Administration and Human Resource Management of the PCCB. Being a Secretary to the Oversight Committee, it is without a flicker of doubt that the Director of Administration and Human Resource 37 | P a g e Management of the 2nd respondent is well versed with all disciplinary matters of the 2nd respondent’s employees at the disciplinary authority level as well as at the appellate level. The contents/ averment in Paragraph 26 of the Counter affidavit has not violated principles regarding affidavits. Indeed, the lamentation by the applicants on the averment by the deponent of counter affidavit lacks any cogent of merits. The preliminary objection on defectiveness of the counter-affidavit is thus overruled for being preferred while being destitute of merits. In respect of the main application, it would appear at the outset that four of five orders sought are not amenable to the jurisdiction of this court. These are: One, the order of certiorari against the decision of the 2nd respondent to terminate the employment of applicants. Two, order of mandamus compelling the 1st and 2nd respondents to act in accordance with the law. Three, the order of prohibition against the 1st, 2nd and 3rd respondents not to interfere with employment of the applicants. Four, costs of the case. 38 | P a g e The legal principles guiding the determination of issues subject of the judicial review are that, the impugned decision should be final decision made by an administrative body or quasi-judicial body and that no alternative remedy existed for the applicant to address such issue. Two orders sought are out of these two parameters, namely the certiorari against the 2nd respondent and mandamus against the 1st and 2nd respondents. In respect of orders of certiorari against the 2nd respondent, it is settled view of this court that it is untenable in law for the reasons that: First, the decision of the 2nd respondent was not a final decision that could be challenged by judicial review. Second, the applicants had alternative remedies to challenge such decision. The 2nd respondent’s decision could be challenged by way of appeal within 14 days of the notification of the decision. In the case of Pavisa Enterprises vs Minister of Labour and Youth Development and Another (Misc. Civil Cause 65 of 2003) [2007] 39 | P a g e TZHC 13 (16 August 2007) (TANZLII), at page 10, the High Court (Mlay, J.) observed that: In the intended application for the order of certiorari as shown in the grounds stated in the statement, the applicant will want this court to review the evidence and reach a different decision from that reached by the Conciliation Board and by the Minister for Labour. This can be done by this court in an appeal and not while exercising powers of judicial review. Judicial review is not an alternative to an appeal. Further, in the case of John Mwombeki Byombalirwa vs Regional Commissioner and Regional Police Commander, Bukoba [1987] TZHC 6 (28 March 1987) (TANZLII); [1986] TLR 73 (TZHC), at page 76, the Court observed that: For all that we know mandamus is the procedure whereby a citizen with sufficient legal interest may apply to the High Court to compel a public officer to perform a public duty 40 | P a g e entrusted to him. It is said it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do something or not to do something; the duty itself being of an imperative nature. From the foregoing discussion it has been said there are few conditions to be proved in order for an order of mandamus to issue. These are:- (1)The applicant must have demanded performance and the respondents must have refused to perform; (2)The respondents as public officers must have a public duty to perform imposed on them by statute or any other law but it should not be a duty owed solely to the state but should be a duty owed as well to the individual citizen; (3)The public duty imposed should be of an imperative nature and not a discretionary one;(4) The applicant must have a locus standi: that is, he must have sufficient interest in the 41 | P a g e matter he is applying for; and (5) There should be no other appropriate remedy available to the applicant. As the order of mandamus sought is against 1st and 2nd respondents jointly, it appears to be impractical as decision of the 2nd respondent had a clear alternative remedy that would have been applied to it. The regulations guiding disciplinary action of applicants permit an appeal to lie from the 2nd respondent to the 1st respondent. Thus, joinder of the 1st and 2nd respondents in this remedy makes it untenable before this court. Further, the applicant failed to convincingly inform the court which legal duties of imperative nature that the applicants demanded and the respondents refused to perform. The parameters in John Mwombeki Byombalirwa (supra) are not fully articulated to have existed save for locus standi. With respect to order of prohibition against all the respondents not to interfere with the employment of the applicants without adherence to laws and procedure, there are two limbs for such order to be effective, namely 42 | P a g e reinstatement of the applicants to the employment relationship with 2 nd respondent; and calling and quashing the decisions of the 1st and 2nd respondents thus directing the handling of the applicants’ disciplinary action adhere to laws and procedures. The first limb which the applicants argues strongly was that this court order reinstatement of the applicants to their respective ranks in the 2nd respondent’s institution without loss of any entitlements. It should be stated at the outset that this limb is untenable. A reason is simple and straight forward. The nature of the order is of prospective nature dealing with restraints from doing or continue doing something. The order of prohibition from interfering with employment of the applicants presupposes that still such employment relationship exists at the time of filing and hearing of this application. However, perusal of records indicates that contents of paragraphs 31, 32, 33, 34 and 35 of the affidavit in support of the application are clear that the applicants were terminated from the employment. This is supported by Paragraph 18, 19 and 20 of the counter affidavit. Totality of 43 | P a g e evidence on record re-affirm the position that employment was terminated and notification letter issued to the applicants. It is to be noted that this court is not exercising the powers of either appellate court in civil suits or specifically revision in labour matters where the court would have powers to order reinstatement of the applicants. Such decision would be beyond the powers of this court in judicial review even if a prayer of certiorari is issued in the circumstances. The role of the court in judicial review is different from that of the appellate court. The Court in judicial review does not replace the decision of the administrative organ on merits. In prohibition, the court prevents a decision of administrative body to be made or being carried on. It orders/ directs the administrative body to stop carrying on the ongoing action or intended action. It is normally issued pending the conclusion of proceedings to final decision. To adopt the words of Mr. Justice Ssekaana Musa (Judge of High Court, Republic of Uganda) in a Public lecture presentation to; The East 44 | P a g e Africa’s Emerging Public Interest Advocates Programme, at the MS TCDC in Arusha–Tanzania 1st March, 2023 https://ssekaana.com/blogs/the- layman-s-guide-to-law/posts/7165203/remedies-in-judicial-review (as accessed on 8th February 2025), he lucidly observed that: Prohibition means an order issued by court to forbid some act or decision which would be ultra vires. The order of Prohibition is an order issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings; it will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made. Before the order of Prohibition is issued there must be something done. It is issued at the stage when the proceedings are in progress to forbid the authority from continuing the proceedings. It is directly related to Certiorari since lies to quash the decision while prohibition lies to forbid from further continuing the proceedings. The usual practice is to pray for Prohibition and alternatively certiorari because it may happen that pending proceedings for prohibition the agency may hand over its final decision. 45 | P a g e The prohibition order intends to curtail possibility of wrongful act to be committed or continuance of the same. It is futuristic in nature as the prohibition prevents the action to take place. The prayer not to interfere with applicants’ employment with 2nd respondent presupposes that the applicants are still in valid employment relationship with 2nd respondent. In the case of John Mwombeki Byombalilwa vs the Regional Commissioner and Regional Police Commander Bukoba [1986] TLR 73, at page 75, Mwalusanya, J observed that: Judicial Review is an important weapon in the hands of judges of this country by which an ordinary citizen can challenge oppressive administrative action and judicial review by means of prerogative orders (certiorari, prohibition and mandamus) is one of those effective ways employed to challenge administrative action. It is my conviction that the courts should not be eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of 46 | P a g e state. Equally however it is important to realize that judicial review is not the same thing as substitution of the court's opinion on the merits for the opinion of the person or body to whom a discretionary decision a making power has been committed. It is for the executive to make administrative decisions. Parliament has empowered the executive to decide what it thinks necessary. It has to make political and economic judgments. It may make a sound one or a bad one. The courts might have been able to make a better one than the executive made; but it must be remembered that parliament, no doubt for good reason, has not entrusted guidance to the courts (Emphasis added). As the law is settled on powers of the court in judicial review that it cannot substitute the decision of administrative body with its decision on merits of the issue in question. This court cannot rightly substitute the 2nd respondent’s decision to terminate the employment of the applicants with 47 | P a g e reinstatement without loss of entitlements as per applicants’ submission. Such decision would be traversing in uncharted territory. Thus, the first limb of prohibition is devoid of merits. The second limb of this prayer presupposes that this court quashes the decision of the 1st and 2nd respondents thus ordering the hearing of the disciplinary authorities to hear the applicants on merits in strict compliance with laws and procedures. It appears that this limb depends on the finding that the decisions of the 1st and 2nd respondents to terminate the employment of the applicants and that dismissal of the appeal are nullity in the first place. Consequently, the order of prohibition would entail preventing the respondents from acting against the applicants’ employment relationship with 2nd respondent unless there is strictly adherence to the laws and procedures. Thus, granting of this 2nd limb is consequential to orders of certiorari against the decisions of the 1st and 2nd respondents respectively. This aspect would be reverted to at a later stage. 48 | P a g e The prayer for order of certiorari against the decision of the 1 st respondent seems to fall squarely within the ambit of this court. There are three main grounds for challenging the decision of the 1st respondent in this application. The first ground is premised on failure to consider pertinent aspects that prejudiced the rights of the applicants. Those pertinent aspects are listed to include: divergence between evidence on record and the decision; failure to avail the records of the proceedings to the applicants to facilitate appeal; none observance of the laws governing disciplinary procedures by the 2nd respondent especially Reg. 46(a), (b), (c) and (d) of the PCCB Regulations,2009 and Reg. 48(7) of the Public Service Regulations, 2022. The decisions in the case of Robinson Mosha and 3 Others versus the Inspector General of Police and the Attorney General and Enza Zaden Africa Ltd versus Edwin Kasena were cited to illustrate the same. The law is clear that appeals against the 2nd respondent’s decision in disciplinary action against any employee of the 2nd respondent lie to the Chairperson of the Oversight Committee. The provisions of Regulation 45(1) and (2) of the Prevention and Combating of Corruption Regulations, GN No. 300 of 2009 provides for appeals. The Regulations state that: 49 | P a g e 45(1) Any investigation officer other than those appointed by the President, who is aggrieved by an award made by the Director General may within fourteen days of the notification to him thereof, appeal in writing against the same to the Chairperson of Oversight Committee. (2) Upon such appeal as provided in sub-regulation (1) of this Regulation, the Chairperson of Oversight Committee may either allow or dismiss the appeal or may uphold the finding and confirm or vary the finding or remit the punishment. The criteria for the validity of the appeal against the decision of the Director General of the 2nd respondent is that: one, the appellant must be investigation officers who is not a Presidential appointee. Two, it is to be preferred within 14 days of the notification. Three, the appeal should be in writing; and four, it should be directed to the Chairperson of the Oversight Committee. 50 | P a g e It is lucid and explicit that time for preferring an appeal is stated to be within fourteen (14) days of the notification. It means upon the applicants’ receipt of the communication on termination of their respective employments they ought to have initiated the appeal to the appellate authority. Section 60 (1) (c) of the Interpretation of Laws Act, Cap 1 R.E. 2019 is articulate on computation of time. It states that: 60.-(1) In computing time for the purposes of a written law- (c) where anything is to be done within a time before a specified day, the time shall not include that day; The days for appealing are excluding the date of notification as such day is not part of the days to be counted. As the applicants were notified on 17th October 2023 and 16th October 2023 for the 1st applicant and 2nd and 3rd applicants respectively, the period of fourteen day started running immediately after the respective dates. 51 | P a g e It is on record that Exhibit HHI-17 collectively reveal that all the applicants were notified on 17th October 2023 for 1st applicant, 16th October 2023 for the 2nd and 3rd applicants on termination of respective employments. The applicants were notified in writing as the letters of termination were dated 10th October, 2023 forming part of the Exhibit HHI- 17 of the affidavit reveal. In the instant application, the decisions of the 1st respondent had effect of dismissing the applicants’ respective appeals on ground that each of the appeal was preferred out of time. Exhibits HHI-18 collectively reflect that the appeals were dismisses for being preferred out of time for about 140 days for the 1st applicant and 71 working days for the 2nd and 3rd applicants respectively from the date the decision to terminate the respective employments were terminated. Exhibit HHI -18 collectively reflects that basis of determination of the appeal. For instance, a letter with Reference No. CAB.30/536/PF. 1490/3 reads that: 2. Katika rufaa yako umeeleza kuwa ulipokea barua ya Uamuzi wa shauri lako la Nidhamu tarehe 17 Oktoba, 2023. Aidha, umekata rufaa kwa barua ya tarehe 14 52 | P a g e Machi, 2024 iliyopokelewa Ikulu tarehe 18 Machi, 2024 ikiwa zimepita siku 140 tangu kumalizika kwa siku 14 za kukata rufaa zilizowekwa kwa mujibu wa Sheria. Hivyo, rufaa yako imetupiliwa mbali kwa sababu umewasilisha nje ya muda. Similarly, letters referenced CAB.30/536/PF.1460/3 and CAB.30/536/PF 1459/3 dated 20th February, 2024 for the 2nd and 3rd applicants respectively reveal that: 3. Kutokana na rufaa yako kuwasilishwa nje ya muda wa kisheria na kutowasilishwa kwa sababu za msingi za kushindwa kukata rufaa hiyo kwa wakati, nimeelekezwa nikujulishe kwamba, kisheria rufaa yako imekosa sifa ya kusikilizwa, hivyo, imetupiliwa mbali. Effect of time-barred appeal is that the body competent to determine the appeal has the right to dismiss or reject such appeal. It is the law 53 | P a g e under section 3(1) of the Law of Limitation Act, Cap 89 R.E. 2019 that a matter that is time-barred must be dismissed. In the case of Vicent Masanda Wambura vs Philipo Ndunguru & Others (Civil Application No. 511/17 of 2020) [2024] TZCA 252 (2 April 2024) (TANZLII), at page 7, the Court of Appeal stated that: I wish to stress that, fundamental as it is, the granting of extension of time for the doing of act, cannot be taken for granted or casually. Since, without a strict adherence to rule 10 of the Rules, the possibilities of the courts to entertain time-barred matters would not be ruled out. It is common knowledge that, to entertain time-barred matters is tantamount to bless a breeding ground for endless litigation. Much as time bar touches on the jurisdiction of the Court. (Emphasis added). The order of certiorari can be issued where circumstances of the case reveals that tribunal exceeded or acted without jurisdiction, existence of the error on face of record or violation of the natural justice principles and that the decision was so unreasonable that no authority would have made 54 | P a g e such decision. The principle in the case of Rahel Mbuya vs Minister for Labour and Youth Development and Another (Civil Appeal 121 of 2005) [2007] TZCA 168 (22 May 2007) (TANZLII), at page 7, the Court of Appeal stated that: A decision of an inferior court may be quashed by an order of certiorari where the court acted without jurisdiction or exceeded its jurisdiction or failed to comply with the rules of natural justice in a case where these rules are applicable or the decision of a competent authority is so unreasonable that no reasonable authority could even have come to it or where there is an error of law on the face of the record. The court will not however act as a "court of appeal" from the body concerned. (See also: Chief Constable of North Wales Police v Evans (1982) 3 All ER 141). We have hopefully amply set out the principles governing the grant of writ of certiorari. On the facts established, was this a fit case for a writ being issued? We are fully 55 | P a g e conscious of the fact that the jurisdiction of the court to issue writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court. However, we wish to point out that the appellant's contention that the learned judge did not give reasons on some of her grounds of appeal, is wholly unmerited. The learned judge gave reasons, adequately revealing the basis of the decision and expressed specific findings that were critical to the determination of the proceedings. The basis of the 1st respondent’s decision to dismiss the appeal was categorically stated in the letter communicating the results of the appeal. For all the three applicants, the reason was the same that the respective appeals were preferred out of time without any cogent justification for the delay. As the appeal was preferred beyond time required by law, the same was bound to be dismissed. In the circumstances, the 1st respondent was not bound to consider and determine matters allegedly pertinent to the 56 | P a g e appeal thus prejudicing the rights of the applicants. Those aspects would be entertained only if the matters were preferred timeously before the appellate authority. For instance, in the case of Tatu Mgetta and another vs Mwanza Satellite Cable TV (Civil Appeal 142 of 2019 [2022] TZCA 779 (6 December 2022) (TANZLII), at page 5, the Court of Appeal reiterated that: It is settled position that a court of law or quasi-judicial board is not enjoined to determine on merit any incompetent matter. In the circumstances, the 1st respondent as an appellate authority having found that the respective appeals were preferred well beyond time for 140 days for the 1st applicant and 71 days for the 2nd and 3rd applicants, the appellate authority had nothing compelling to require analysing the merits of the appeal. Indeed, preferring an appeal out of time had effect of making the appellate body without jurisdiction. The jurisdiction to entertain the appeal by the 1st respondent is limited to an appeal preferred timely within the 57 | P a g e prescribed time. This Court is guided to hold so by the principle laid in the case of Said Mohamed Said vs Muhusin Amir & Another (Civil Appeal No. 110 of 2020) [2022] TZCA 208 (25 April 2022) (TANZLII), at page 13, the Court of Appeal stated that: Time bar touches on the jurisdiction of the court. That was, in our decided view, an error which cannot be condoned. Simply stated, even upon failure by the respondents to lodge submissions in support of the objection, the trial judge ought to have asked the parties to address him on that issue so as to satisfy himself if the court had the requisite authority to hear and determine it. Thus, the first limb challenging the decision of the 1st applicant is devoid of merits as the appeals were preferred out of time rendering the appellate body without a jurisdiction to entertain the same. The second limb on the applicability of Regulation 50(1) of the Public Service Regulations, 2022 GN No. 444 dated 24th June 2022, it would 58 | P a g e appear to be misplaced. The reason is straight forward that it does not apply to the decision of the 1st respondent which is an appeal. Essentially, Regulation 50 of the Public Service Regulations caters for the situation where the disciplinary matter in question amount to criminal offence then the law provides for the procedure in order to avoid the double jeopardy against the accused public servant. There are four circumstances with regard to the matter at hand. First, where the criminal proceedings have been commenced, no disciplinary proceedings should be commenced until conclusion of the criminal proceedings. Second, where disciplinary proceedings have commenced but during its pendency criminal proceedings are instituted then the disciplinary proceedings should be stayed until conclusion of the criminal proceedings. Third, where criminal proceedings have been preferred leading to acquittal of the accused public servant, the employer is not barred to institute disciplinary proceedings against the acquitted public servant. Fourth, conviction in criminal proceedings is deemed to be a finding of guilty in the disciplinary proceedings without a need to conduct disciplinary hearing. 59 | P a g e It is lucid that the law restricts/ prohibits pursuit of the disciplinary proceedings and the criminal proceedings simultaneously. However, such restrictions apply only before the disciplinary hearing is concluded. The law gives precedence to criminal proceedings if the same are preferred at the same time or during pendency of the disciplinary proceedings. The reason is that criminal proceedings have impacts of being deemed as proof of guilty in the disciplinary proceedings without need to conducting the disciplinary hearing. Also, acquittal in the criminal proceedings does not bar the employer to conduct the disciplinary proceedings against the accused public servant in question. In the instant application, it is evident that the joint affidavit reveals in Paragraphs 11-15 that 2nd respondent commenced investigation against all the applicants sometimes in 2023 vide file No PCCB/HQ/ENQ/03/2023/OP.4 and recorded the cautioned statement of the applicants. Also, it was stated that meanwhile applicants continued working with the 2nd respondent while waiting for the criminal charges. Further, all the applicants were served with letters that their respective 60 | P a g e rank promotion was withheld pending the criminal investigation as revealed in Annex HHI -4. Moreover, paragraphs 36 to 40 inclusive of the joint affidavit aver that the upon termination of employment on conclusion of the disciplinary proceedings, applicants were arrested, the Economic Case No 51 of 2023 was instituted and the applicants were arraigned at the Resident Magistrates Court of Dar es Salaam which led them to be remanded at Keko Prison pending the hearing of the criminal case. It is the applicants’ averment that institution of this criminal charge was continuation of the criminal proceedings that had commenced simultaneously with the disciplinary hearing. The respondents have vehemently denied to have commenced the criminal proceedings during the pendency of the disciplinary proceedings. They averred that there was normal criminal investigation conducted against the applicants as reflected in Annexure HHI-4. A close scrutiny of the available records indicates that disciplinary proceedings commenced sometimes on 1st June 2023 when the notice of 61 | P a g e intention to commence disciplinary hearing was issued accompanied by Disciplinary Charges dated 1st June 2023 for all the applicants. This is well reflected in Annexure HHI-5 of the affidavit. The notification of the outcome of the disciplinary hearing revealed that the same was issued on 10th October 2023 and received by the applicants on 18th October 2023 and 16th October 2023 for 1st applicant and 2nd and 3rd applicants respectively. Further, the Economic Case No 51 of 2023 was instituted at the Resident Magistrates Court of Dar es Salaam at Kisutu sometimes in November 2023 upon the disciplinary hearing having been concluded and determination made against all the applicants by termination of the employments. Therefore, at no point in time the disciplinary proceedings were conducted simultaneously with the criminal proceedings against the applicants. The first point of reference is the Annexure HHI -4 collectively that provide in Paragraphs 3 and 4 categorically that: 3. Aidha, Uamuzi huu ni kutokana na uchunguzi 62 | P a g e wa jinai/ Nidhamu unaendelea dhidi yako. 4. Utafikiriwa kupanda daraja iwapo uchunguzi utathibitisha kutokuhusika na tuhuma zinazokukabili. It is lucid that the reason for the non-promotion to higher rank of the applicants was categorically stated to be the ongoing criminal/ disciplinary investigation against each of them. Thus, opening up of the Enquiry File and recording cautioned statements of the applicants is not in law commencement of the criminal proceedings. It is clear that is an investigation stage. Further, the criminal trial is commenced by institution of the charge or information to the respective trial court. That is when criminal proceedings are always reckoned to have commenced. For instance, in Antidius Augustine vs Republic (Civil Appeal No. 89 of 2017) [2018] TZCA 179 (6 September 2018) (TANZLII), at pages 6-7, the Court of Appeal reiterated that: 63 | P a g e The provision of section 135(a) (ii) of the Criminal Procedure Act, Cap.20 R.E. 2002 (the CPA) must be closely observed by both the prosecution when drawing a charge and the trial court when admitting the charge before assuming jurisdiction to try a case. The requirement elaborated in the above quoted provision aims to put more emphasis on the fact that it is the charge or information as stated in the CPA, which commences a criminal trial in subordinate court and the High Court respectively. Given that from the commencement of disciplinary proceedings to its conclusion, there was no charge or information drawn against the applicants in respect of economic case instituted before any court of law, I am of the settled view that the allegations regarding the disciplinary proceedings being conducted simultaneously with criminal proceedings are baseless. In fact, there was compliance with section 4(3) of the Criminal Procedure Act, Cap 20 R.E. 2022 that requires exhaustion of administrative domains measures prior to preferring criminal proceedings as the criminal 64 | P a g e case was instituted later after the determination of the disciplinary proceedings and expiration of time to appeal against the decision. That being the case, the lamentation that the 1st respondent erred to dismiss the appeal while there was pending criminal proceedings hold no water. The limitation on double jeopardy as envisaged in regulation 50 of the Public Service Regulations 2022 relates to the disciplinary proceedings before a disciplinary authority. It does not touch on the appellate authority in determination of the appeal before it. This limb challenging the decision of the 1st respondent collapses naturally for being devoid of merits. The third limb is on failure to note that the law does not provide for extension of time. In the circumstances, the 1st respondent ought to have applied the provisions of Regulation 61 (6) permits the appellate authority to allow the appeal preferred out of time if special circumstances prevented the appellant from filing the appeal out of time. The word used is may meaning that it is discretionary powers of the appellate authority where the appellant demonstrated sufficient cause. 65 | P a g e Though it is true that appellate authority has powers to accept the appeal preferred out of time, the law calls for the appellate body to act so only where it is satisfied that special circumstances precluded the appellant from so acting. It is on record that annexure HHI-18 to the affidavit is not short in scope regarding this aspect. The communication of the determination of the appeal categorically stated that there were no cogent reasons advanced by the applicants to warrant the appellate authority to accept the appeals out of time. There are no doubts that the appellate authority (1st respondent) considered the appeal to establish if the same disclosed anything meaningful grounds on failure to prefer it timely but found nothing. In fact, the determination of the appeal contained a detailed reason which guided the 1st respondent to arrive to the finding to dismiss the appeal. This aspect of detailing reason for the decision cementing the validity of the decision of the 1st respondent as it reiterates one of the main aspects of natural justice i.e. the right to reasons for the decision. The 66 | P a g e decision is categorically based on lack of justifiable reasons for the delay to appeal within time. It is pertinent at this juncture to be guided by the principle in the decision of M/S St. Anthony Secondary School vs Lukumburu Investment C. Ltd (Civil Revision 388/16 of 2022) [2024] TZCA 123 (23 February 2024) (TANZLII), at page 13, where the Court of Appeal of Tanzania elucidated that: It is observed that the strength of any decision lies on its reasoning. Reason is the soul and spirit of good judicial decision without which there cannot be a valid decision. This Court having considered in totality of the available records, there is nothing on record to fault the 1st respondent’s decision to dismiss the respective applicants appeal for being preferred out of time without cogent reasons. It is certain that the third limb of arguments against the decision of the 1st respondent is bound to disintegrate for conspicuously lacking merits. Thus, the third limb collapses in its totality. It should be restated at this juncture that all the three reasons preferred by the applicants against the decision of the 1st respondent are 67 | P a g e well within the grounds for orders in judicial review. These were reflected in the case of Pendo Masasi vs The Minister for Labour & Youth Development & Others (Civil Appeal No. 34 of 2019) [2021] TZCA 331 (28 July 2021) (TANZLII), at pages 4-5, the Court of Appeal observed that: In her ruling, the learned Judge properly directed herself that the application before her for certiorari required her to investigate whether the Minister's impugned decision was proper on the face of the record. She was alert that in any application for judicial review, the impugned decision can only be examined upon any of the grounds succinctly stated by this Court in Sanai Murumbe & Another v. Muhere Chacha [1990] TLR 54 as follows: "One, that the subordinate court or tribunal or public authority has taken into account matters which it ought not to have taken into account. Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account. Three, lack or excess of jurisdiction by the lower court. Four, that the 68 | P a g e conclusion arrived at is so unreasonable that no reasonable authority could ever come to it. Five, rules of natural justice have been violated. Six, illegality of procedure or decision. (Associated Provincial Picture Houses, Ltd. v Wednesbury Corp. [1947] 2 All E.R. 680 and Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All E.R. 935). "[Emphasis added) It is unfortunate that nothing in the preferred limbs challenging the decision of the 1st respondent as an appellate authority revealed any iota of merits to warrant this court to interfere with the decision of the 1st respondent. This order of certiorari against the 1st respondent in the circumstances of the application is declined as there is nothing cogent warranting this Court to exercise its supervisory powers to call and quash the decision in question. Having found that the decision of the 1st respondent to dismiss the appeal for being preferred out of time for no justifiable reasons is legally acceptable and proper decision, it falls naturally the complained decision is 69 | P a g e not amenable to orders of certiorari as there is nothing warranting this court to quash such appropriate and legally sound decision of the 1st respondent. The prayer for order of certiorari against the 1st respondent is bound to fail for lack of cogent merits. At this juncture, the second limb of the prohibition that would consequentially result from certiorari orders lacks the merits to stand. As this court has declined to order certiorari, it is not legally possible to order the respondent not to interfere with employment of the applicants without adhering to laws and procedures as there is nothing to prevent in the circumstances. Conclusively, the analysis has revealed that nothing on record has been demonstrated on the required standard of proof of civil cases on balance of probability that applicants are entitled to the decision of this court. In Saed Kubenea vs The Attorney General, Misc. Civil Cause No 28 of 2014, the High Court of Tanzania, Main Registry, at Dar es Salaam (Unreported), at pages 19-20, the High Court observed that: 70 | P a g e Before we wind up, we would make one pertinent observation. What the petitioner wanted us to do in this case is analogous to the exercise of the powers of judicial review. He has exercised an important right as a citizen, and has shown the way where such matters crop up in the affairs of our country. That power represents, in our respectful opinion, the most fundamental constitutional reason for the existence of the Judiciary. It is the tool that enables the Judiciary to counter balance the exercise of the powers of the State and ensure that all that is done by the various State bodies and public officials is within the parameters of the law and the Constitution. We would thus not hesitate, where it is adequately shown that a public official or another organ of the State has exceeded its powers under the law, to step in and make appropriate orders. That is the role that our constitutional set-up has reserved for the Judiciary. However, that jurisdiction must be exercised in appropriate situations, and a correct balance 71 | P a g e must be maintained between it and other fundamental legal principles, such as the principle of separation of powers and the doctrine of the rule of law. In totality of the events, the application for orders of certiorari, mandamus and prohibition against the decisions of the 1st and 2nd respondents is delinquent of merits thus this application deserves dismissal in its entirety. I hereby proceed to dismiss the application for lack of merits. No orders as to costs. It is so ordered. DATED at DODOMA this 18th day of February 2025. E.E. LONGOPA JUDGE 18/02/2025. 72 | P a g e