20100826 TZCA Arusha 1

1 IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: MSOFFE, J.A., KILEO, J.A. And ORIYO, J.A.) CIVIL APPEAL NO. 20 OF 2009 IBRAHIM OMARY (EX.D. 2323 IBRAHIM) ...........................APPELLANT VERSUS 1. THE INSPECTOR GENERAL OF POLICE } 2. THE PERMANENT SECRETARY, , MINISTRY OF HOME AFFAIRS ................... RESPONDENTS 3. THE HON. THE ATTORNEY GENERAL (Appeal from the decision of the High Court of Tanzania at Moshi) (lundu, J.) dated the 30th day of May, 2008 in Civil Case No. 33 of 2001 JUDGMENT OF THE COURT 25 & 27 August, 2010 MSOFFE, J.A.: In the High Court of Tanzania at Moshi the appellant sued the respondents in a claim of general and special damages for, inter alia, wrongful dismissal from service. The High Court (Jundu, J. as he then was) heard all the evidence from the respective parties, composed a judgment outlining all the issues and the evidence in the I ,.; 11 2 case, and then at the end he dismissed the suit for want of jurisdiction. He reasoned, inter alia, as follows: - "The fundamental issue, therefore, becomes whether after the final decision on his appeal from the relevant senior police officer or the IGP as stated who heard his appeal is it open to the Plaintiff to come to this court by way of a suit as he has done to challenge the dismissal order that was inflicted on him by the Regional Police Commander in Moshi? In my considered view, the decision on the appeal of the Plaintiff, being ''final" it meant that Section 56(1) of the said Act which takes care of appeals its what is called a ''finality clause" in law. The said provision of law or the said Act as such does not provide that a person aggrieved by the said ''final" decision of the most senior police officer could revert to this court by way of suit or an appeal for to seek further redress. It appears to me that the only way the Plaintiff can pursue his claims stated in this suit or challenge the dismissal order that was inflicted on him by the Regional Police Commander is by way 3 of Judicial review to be initiated by means of application for prerogative orders including certiorari and mandamus. In other words, I hold that this court has no jurisdiction to entertain this suit filed by the Plaintiff seeking to challenge his dismissal from the Police Force as being wrongful (see Para. 43 ( c) of the Amended Plaint). Can this court deal with the other remaining claims and reliefs sought by the Plaintiff, in Para 43 of the Amended Plaint? In my considered view, all the other claims/reliefs stated by the Plaintiff in Para 43 of the Amended Plaint or in the various Paras. of the said Plaint arise or are founded on the alleged dismissal of the Plaintiff from the Police Force. Therefore, having held that this court has no jurisdiction to entertain this suit as regards the dismissal of the Plaintiff from the Police Force, I hold further that it has no Jurisdiction to entertain the suit as regards the other remaining claims. and . reliefs stated by the Plaintiff in Para. 43 of the 4 Plaint (see KLM Raval Dutch Airlines Vs. Jose Xavier Ferreira [1994] TLR 230 at page 263 para. F and G. Hence/ I need not labour on the remaining eight (8) issues ·from Issue No. (2) to (9) above." Having held so, the judge went on to order thus: - Consequently, the entire suit is dismissed with costs for want of jurisdiction. It is so ordered. This is an appeal against the above decision. The appellant filed a memorandum of appeal containing four grounds of appeal. In our view however, for purposes of this appeal, the most important and material point lies in that portion of the first ground of appeal which reads: - He further erred in not giving the Appellant an opportunity to be heard on the point of jurisdiction. At the hearing of the appeal Mr. Prosper Rwegerera, learned State Attorney appearing on behalf of the. respondents, readily conceded to the complaint in the above ground of appeal. He was of 5 the view that the appellant, and the respondents for that matter, ought to have been given the opportunity to be heard on the issue of jurisdiction before the judge made a decision on it. We have gone through the entire record of proceedings before the High Court. It is clear therefrom that the issue of jurisdiction did not feature anywhere in the pleadings, in the evidence and in the parties' written submissions made and filed after the closure of their respective cases. As it is, the issue was brought up by the judge in the closing paragraphs of the judgment. There is no dispute that in law jurisdiction is a matter which can be raised at any stage of the trial in a case. In this sense, although it is a bit unusual and unfortunate that the issue was raised at a rather late stage of the case, strictly speaking the judge did not err in raising it at the end of the judgment. However, as far as this case is concerned, since the point appears to have come up as an afterthought we think that prudence and the interests of justice demanded that the appellant and the respondents be called upon to 6 address the court on the issue before making a finding on it. If the judge had done so he would have had the benefit, advantage and opportunity of hearing the parties' views, or rather getting their inputs on the point, before making a definitive and balanced finding on the said point. Indeed, we wish to go further and say that if he had done so justice would have been seen more to have been done. As such, the complaint herein would not have arisen. There is another aspect of the judgment which we wish to address for future guidance. As demonstrated above, having found that the court had no jurisdiction the judge went on to "dismiss the entire suit". With respect, he ought not to have done so. As shown above, the judge did not address or deal with the parties' rights or issues of controversy in the matter. In other words, he did not decide the case on merit by making a finding on whether or not the appellant was entitled to the claims in question. In this sense, he ought not to have dismissed the suit because an order of dismissal entails that a competent suit has been disposed of. In the I' 7 circumstances, the judge ought only to have simply struck out the suit if he thought that the court had no jurisdiction to entertain it. We are supported in this view by a decision of the defunct Court of Appeal for East Africa in Ngoni-Matengo Cooperative Marketing Union Ltd v Ali Mahomed Osman (1959) EA 577 at page 580 thus: - ... This court, accordingly, had no jurisdiction to entertain, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to strike out" the appeal 11 as being incompetent, rather than to have ''dismissed" it,• for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of .. (Emphasis supplied.) All in all, we allow the appeal on the basis of the complaint in the above mentioned ground of appeal. We hereby set aside the 8 judgment of the High Court at Moshi dated 30th May 2008 in Civil Case No. 33 of 2001. The said High Court is directed to reconstitute itself and proceed from where it stopped on 17/9/2007. At the resumed hearing, the court should hear the parties on the issue of jurisdiction, and depending on the outcome, proceed to determine the case in a manner it Will deem fit, of course according to law. Since neither party is to blame for the decision made above by the judge each party shall bear its own costs of this appeal. DATED at ARUSHA this 26th day of August, 2010. J. H. MSOFFE JUSTICE OF APPEAL E. A. KILEO JUSTICE OF APPEAL K. K. ORIYO ' ~ . --·-=- / JUSTICE OF APPEAL I certify that this is a true copy of the original. ~ = Q,--=-5<--s- (E. Y. MKWIZU) . DEPUTY REGISTRAR COURT OF APPEAL