JOEL RUNDAjudgement

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY

AT DODOMA MISC. CIVIL CAUSE NO. 21366 OF 2024 (Arising from Mise. Civil Cause No. 13398 of2024 in the High Court of Tanzania, Dodoma Sub Registry) IN THE MATTER FOR ORDERS OF CERTIORARI, MANDAMUS

AND PROHIBITION

AND

IN THE MATTER OF CHALLENGING THE DECISION OF THE

COMMISSIONER GENERAL OF PRISON BEING THE FINAL

APPELLATE AUTHORITY

BETWEEN JOEL RUNDA MARIVEI................................................. APPLICANT

VERSUS COMMISSIONER GENERAL OF PRISONS............. 1st RESPONDENT THE ATTORNEY GENERAL..................................... 2nd RESPONDENT

RULING 21st October & 2Zd November, 2024 MUSOKWA, J. The applicant herein seeks for the grant of extension of time to apply for judicial review, in order to challenge his dismissal from employment, which was issued by the 1st respondent herein. Before I engage into a discussion on the issue, a brief background of this matter is necessary. The 1st i respondent employed the applicant as WDR. By a letter dated 12th December 2022, the applicant was dismissed from employment while holding the position of Sergeant, on the ground of misconduct. Being aggrieved, the applicant timely sought leave to file judicial review which was granted by this court (Hon. Masabo J.) on 1st August, 2023. Subsequently, on 31st May 2024, the applicant filed an application for judicial review which was dismissed by this court (Hon. Longopa J.) on 16th July, 2024 for being time barred. The enabling provision of the present application is section 14(1) of the Law of Limitation Act, Cap. 89 R.E. 2019 (LLA). This application is seeking for extension of time so as to file an application for judicial review out of time. The application was supported by an affidavit deponed by the applicant himself. The application came for hearing on 21st October 2024, whereby the applicant appeared in person, unrepresented. The respondents on the other hand, were represented by Mr. Erasto Baluwa, learned state attorney. Before

allowing parties to submit on the merits or otherwise of the application, the court suo mottu raised a concern on the competency of the present application before it. Specifically, on whether this court has the 2 requisite jurisdiction to entertain the application; considering that the matter had already been dismissed by this court (Hon. Longopa J.) for being time barred, in a former suit. Mr. Erasto was the first to submit, and referred to the ruling issued by Longopa J., in Mise. Civil Cause No. 13398 of 2024. The aforementioned matter was an application for judicial review between the same parties. The learned counsel for the respondents stated that at page 26 of the ruling by Hon. Longopa J., the said application was dismissed under section 3 (1) of LLA for being hopelessly time-barred. Accordingly, Mr. Erasto asserted that this court has no jurisdiction to entertain the matter which was conclusively determined. Thus, the legal recourse sought by the applicant through the present application was improper. In support of this position, Mr. Erasto preferred the case of MM Worlwide Trading Company Limited and 2 Others vs National Bank of Commerce Limited, Civil Appeal No. 258 of 2017, delivered by the Court of Appeal of Tanzania (CAT). In view of the foregoing, the respondents prayed that this court should dismiss the present application for want of jurisdiction. 3 On his

part, the applicant strongly contended the submissions by the respondents. Mr. Marivei submitted that the impugned decision referred to by the respondents was in relation to the preliminary objection that was before this court. The applicant further stated that dismissal of the previous application does not bar him from prosecuting the present application as the two applications differ in content and scope. Asserting further, the applicant submitted that the case cited by the counsel for the respondents is distinguishable from the instant application. In support of his position, the applicant cited the case of Maria Chrysostom Lwekama vs Placid Richard Lwekama and Another, Civil Application No. 549/17 of 2019. Emphatically, the applicant stated that this court has jurisdiction to entertain the present application and prayed that the court should proceed to determine the application on merits. The main issue for determination is whether it is open for this court to adjudicate on an application founded on a subject matter already declared as time barred and dismissed in a former suit by the same court. Fortunately, and as correctly submitted by both parties, this issue has been canvassed by the CAT in a number of occasions. For instance, in the case of 4 East African Development Bank vs. Blue Line Enterprises Limited, Civil Appeal No. 101 of 2009 (unreported), the CAT held as

follows: - "The pertinent question that falls for consideration and decision is whether or not after a dismissal under Section 3 (1) a party is still free to go back to the same court and institute an application for extension of time. In other words, after the order of dismissal made by Mandia, J. on 22/6/2007, was the appellant free to go back to the same court and institute the application for extension of time before Sheikh, J. which is the subject of this appeal? In answering this question, we will start by citing a few authorities. ...applying the principle discerned from the above authorities, it follows that once an order of dismissal is made under section 3 (1), it is not open to an aggrieved party to go back to the same court and institute an application for extension of time. The remedy is to seek review before the same court or to lodge an appeal or a revision before a higher court. The rationale is simple. That is, as far as the court is concerned the issue of time limitation has been determined." [emphasis added] Similarly, the case of MM Worlwide Trading Company Limited and 2 Others (supra) cited by the learned counsel for the respondents is relevant. The said case partly held that: - "The Court was confronted with the issue whether it was open for EADB to go back to the same court 5 seeking extension of time upon her petition being dismissed on account of time

bar. Guided by the provisions of section 3(1) of the Act and its previous decisions in Oiam Uganda's case (supra) and Hashim Madongo and Two others v. Minister for Industry and Two others, Civil Appeal No. 2003 (unreported), the Court held that it is not open for a party to go back to the same court and seek extension of time as it happened in Hashim Madongo's case (supra) which was what the appellant bank had done." [emphasis added] On the other hand, the applicant cited the case of Maria Chrysostom Lwekama (supra) alleging that the matter is competent before this court. Regrettably, the said case holds otherwise and makes the submissions of the applicant unfounded. For the purpose of transparency, at page 18 of the said judgement, the CAT clearly held as follows: - "It is settled that a judge or magistrate should refrain from setting aside the decision of a fellow judge or magistrate (see, Mohamed Enterprise (supra)). It is trite law that when a court finally disposes of a matter, it seizes to have jurisdiction over it. The application of this principle was emphasized in the case of Tanzania Telecommunication Company Limited and Others v. Telecommunications Tanzania Limited [2006] IEA 393." [emphasis added] Finally, since this court (Hon. Longopa J.) dismissed the applicant's matter for being time barred, it was not proper for the applicant to approach the 6 same court

seeking for extension of time thereafter. Accordingly, this court seizes to have jurisdiction on the matter. Notably, the dismissal order may be challenged by way of review by the same court, or appeal and revision by the higher court as correctly held in the case of East African Development Bank (supra). Consequently, this application is hereby dismissed with costs for want of merits. Order accordingly. Right of appeal fully explained. Ruling delivered in the presence of the applicant; and in the presence of the learned state attorney Mr. Erasto Baluwa, representing the 1st and 2nd I.D. MUSOKWA

JUDGE 7