20141106 TZHC Iringa

IN THE HIGH COURT OF TANZANIA

AT IRINGA MISCELLANEOUS CIVIL APPLICATION NO. 2 OF 2011 JOHN T. MAYEN GA ..... .- ............... APPLICANT

VERSUS 1. THE PERMANENT SECRETAR} PRESIDENT'S OFFICE .... RESPONDENTS 2. THE HON. STATE ATTORNEY . 27/10/2014 & 06/11/2014

RULING Kihwelo J. The applicant herein above has filed an application to this court seeking orders that this honourable court be pleased to issue an order for enlargement of time of the applicant to file the application for leave to apply for orders of certiorari, inandamus and prohibition. The application is supported by the affidavit of John T. Mayenga. Mr. John T. Mayenga appeared in person while the respondents were represented by Mr. Hangi Chang'a, the State Attorney. 1 The applicant in his affidavit in support of the application deposed that he was employed by · the Director of Iringa District Council from 10 th January, 1972 up to 1999 in the capacity of primary school teacher teaching at Mawelewele Primary School in Iringa District and later transferre4 to Luganga Primary School at Pawaga where his services were terminated by ·a letter dated 18/3/1996 on account of stealing ten (10) iron sheets belonging to the school. He appealed unsuccessfully to the President against . the '-" decision of the Teacher Services Commission Board after · which ·he was informed that there was no further appeal. Having no where to go and being both economically and healthwise challenged he consulted the National Organization for Legal Assistance (NOLA) to assist him pursue justice but NOLA delayed to pursue the matter. That he also consulted the Executive Secretary of the Commission for,

Human Rights and Good Governance (CHRAGG) for help but 1nva.1n. The applicant deposed further that not knowing where to go for help he was confused and started experiencing health difficulties. Initially when he went to NOLA for the second time I f __ they • assisted him by preparing a plaint but later he got advice from a University of Dar es Salaam student that a plaint was not a proper way to move the court hence on his endeavour to file an application for prerogative orders he has come up.with this application. 2 In rebuttal the respondents have· through the Counter , Affidavit challenged this instant application. Mr. Chang'a for the respondents while opposing the application submitted that· the applicant was employed on, 10/01/1972 and terminated on 18/03/1996. The applicant filed an appeal to the President on 19/04/1996 and on 4/04/1998 the President confirmed that the termination was fair. It was on 5/04/2010 that the applicant filed the application for prerogative orders. He strenuously contended that it is a legal requirement ~ t that an aggrieved person in the position of the applicant is obliged by law to file the application for prerogative orders within six (6) months from the date of the decision hence in the current case not later than 4/08/1998 and this is by virtue of Section 19(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap.

310 of the Revised Edition 2002. He expressed concern that the applicant has brought this matter 1n 2010 more than 11 years from the date of the decision. · It appears, however, that the submission by the learned counsel is with due respect, somewhat misguided. In the context of the present application the applicant having been unable to file the application within six (6) months as stipulated by Section 19 (2) of Cap. 310 has come before this honourable court for prayers to have the time enlarged 3 to enable him file the applic8:ti6n for prerogative orders. This is what precisely the applicant ha,s done. Mr. Chang'a further contended that· the reasons advanced by the appellant seeki,ng for extension of time are . not reasonable or sufficient cause. He specifically ~efe.rred to NOLA'S negligence which according to him was. a result of the applicant's ignorance of law· wl.iich is not a good cause as ignorance of law is not a defence. He· also referred to paragraph 13 of the affidavit by the appellant where the appellant referred to health problems and medical treatment. But Mr. Chang'a opposed that ,., reason on the ground that there was no proof of the relevant medical report from the purported hospital where he was treated. ~ The applicant in his brief reply he insisted that he produced sufficient evidence to prove his medical treatment and referred to Annexture "Al" which is

reflected in paragraph 18 of the affidavit and reiterated that the reasons advanced constitute reasonable or sufficient cause to grant the extension. The issue before me is whether the applicant has reasonable or sufficient cause on which this court may exercise its discretion , and extend the time for the filing of the application for leave to apply for prerogative orders. 4 I have carefully gone through the court records and come to find that the delay by the applicant to pursue this matter were contributed by the applicant's lack of awareness of the ,court's proce1ures and techniques. This can be kindly seen by looking ·at the applicant's efforts of moving door to door ·· seeking for redress which is a clear man{festation that the applicant did not sleep on ·his rights. Throughout the submission by the applicant he has tried to convince this court that he was a lay person and due to that reason he was prevented from taking the right path and the right action in good time and this• is despite consulting ·human rights defenders and legal aid providers such as NOLA and , .. CHRAGG. I have also considered carefully the argume~ts raised . . by the appellant and the respondent. While dwelling on this ;,'. ...~ ~ . matter I am also mindful of the fact that procedural rules ., "• are intended to serve as the hand maiden of justice and not i-·' to defeat or frustrate it. In the case

of Ramadhan Nyoni V. M/S. Haq.le & Company, Advocates [1996] TLR the High Court Mkwawa J. (as he then was) pointed out at page 73 that; "In a case where a layman, unaware~ of the process of the machinery of justice, tries to get 5 _ ._,. - . . ·- ·; relief before the courts, procedural rules should not be used to defeat justice ---" The above is so more in particular taking into account that courts are fountain of justice and they are last resort for 'those who feel that their rights have been violated. It is on the circumstances above I find it imperative that justice should not only be done but seen to be done. Section 14(1) of the Law of Limitation Act, Cap 89 which the applicant has relied provides that; "The court, may for any reasonable or sufficient cause, extend· the period of lirr.titation for the institution of an appeal or an application, other than an application for the execution of a decree, notwithstanding the provisions of the Act." In interpreting this provision the court has expressed that ignorance or bonafide mistake of law may be taken into consideration in determine whether the court should exercise the disyretion of extending time. This position was taken in the case of Parin A. A. Jaffer and Another V. Abdulrasul Ahmed Jaffer and two others [ 1996] TLR 110 1n which the High Court had the fallowing to say;' 6 ' "For the purpose of an extension of

time in terms of Section 14(1), the applicant's ignorance or bona.fide mistake of law may be taken into consideration zn determining whether the discretion ought-to be exercised." I therefore uphold the applicant's submission that reasonable or sufficient cause has been shown for the delay, and hence grant leave for the applicant to file the intended . -~p~li;atlon. The applicant should file the application to this court within fourteen (14) days from the date of this ruling. ., It is so ordered. P.F. KIHWELO

JUDGE 06/11/2014 Ruling delivered on 06 th November, 2014 in the presence of applicant and absence of the respondents. P.F. KIHWELO

JUDGE 06/11/2014 7