20100322 TZCA Tanga

.i. IN THE COURT OF APPEAL OF TANZANIA ATTANGA {CORAM: MUNUO, J.A., MSOFFE, J. A. And KIMARO, J. A.} CIVIL APPEAL NO. 31 OF 2009 JOSEPH F. MASSANJA .................................................................... APPELLANT VERSUS 1. THE PRINCIPAL SECRETARY, } PRIME MINISTER'S OFFICE, REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT RESPONDENTS 2. THE ATTORNEY GENERAL {Appeal from the Ruling and Order of the High Court of Tanzania at Tanga} {Shayo, J.} dated the 22 nd day of November, 2007 in Misc. Civil Cause No. 1 of 2007 RULING OF THE COURT 19 & 22 March, 2010 MSOFFE, J.A.: At the hearing of the appeal Mr. Stephen Sangawe, learned advocate for the appellant, conceded that the appeal is incompetent for want of leave under section 5(1)(c) of the Appellate Jurisdiction Act (CAP 141 R.E. 141), hereinafter the Act. Before the High Court at Tanga (Shayo, J.) the appellant applied for leave to file an application for prerogative orders of certiorari, mandamus and prohibition. The application was dismissed mainly on the grounds that the intended application was futile because the appellant's transfer from Korogwe District Council to Hombolo Local Government Institute was administrative and not judicial, that it was a normal transfer from one local government institution to another, and finally that at any rate the transfer was not with different terms and conditions of service. In a more or less situation, in Dimon Tanzania Limited v Commissioner General TRA, The Commissioner of Income Tax and The Attorney General, Civil Appeal No. 32 of 2003 (unreported) this Court referred to section 17(5) of the Law Reform (Fatal Accidents and Miscellaneous) Act, thus:- Any person aggrieved by an order made under this section may appeal therefrom to the Court of Appeal and then at page 5 thereof cited a passage from a decision made by this Court in The Senate of the University of Dar es Salaam v 2 .., Edmund Aaron Mwasaga and 4 Others, Civil Appeal No. 83 of 1999 (unreported), that:- To our minds, the orders that fall within the purview of section 17(5) of the Ordinance are those which, as submitted by Mr. Magesa, finally determine an application for the prerogative orders of certiorari one way or the other. The orders that do not touch on the substantive matter provided for under section 17(2) as was the case in the matter before the Principal Judge, are not covered under the provisions of sub-section (5) of section 17 of the Ordinance. In this case, the learned Principal Judge (J.K.) did not make an order refusing or granting an order of certiorari. In other words, the order of 29/4/1999 was not a matter which was decided under section 17(2) of the Ordinance. With respect, in the matter before us, Shayo, J. determined an application for leave to apply for prerogative orders. He did not finally '-- determine an application for the prerogative orders of certiorari one way or the other. The application before Shayo, J. did not fall within 3 the purview of section 17(5) above. Therefore, this is a matter in which leave was required under section S(l)(c) of the Act. In the absence of leave applied for and granted by the High Court, or the · Court of Appeal under paragraph ( c) above, Ms. Angela Temi, learned Senior State Attorney for the respondents, urged us to strike out the appeal. Following the above concession by Mr. Sangawe and the submission of Ms. Temi, both of which we subscribe and agree to entirely, we hereby strike out the appeal with costs. DATED at TANGA this 19th day of March, 2010. E.N.MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL N. P. KIMARO JUSTICE OF APPEAL I certify that this is a true copy of the original. • '\/', ,. 'i1 ,, ~ ' ,,.\\ '. . (N. N. CHUSI) s . ' DEPUTY REGISTRAR ...• ,:'' .·· 4