JUMA MUSA SWALEHE VS THE IAA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

AT ARUSHA MISCELLANEOUS CIVIL CAUSE NO. 3580 OF 2024

IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR

PREROGATIVE ORDERS OF MANDAMUS AND CERTIORARI

AND

IN THE MATTER OF DISCONTINUATION FROM STUDIES OF JUMA

MUSA SWALE HE JUMA MUSA SWALEHE....................................................................... APPLICANT

VERSUS THE INSTITUTE OF ACCOUNTANCY ARU SH A........................ 1st RESPONDENT . THE ATTORNEY GENERAL.........................................................2nd RESPONDENT

RULING 19/02/2025 & 19/02/2025 NDUMBARO, J The applicant applied for leave to file judicial review before this Court under the provision of sections 5(1)(2) and (3) of Law Reform (Fatal accident and miscellaneous provisions CAP 310 RE 2019 (Judicial Review Procedure and Fees) Rules 2014, whereby the applicant pray for this court for leave to apply for orders of certiorari and mandamus directing and compelling respondent to release applicant result and reinstate him to his studies, claiming that the decision for his discontinuation from studies violated the principle of natural justice and tainted with procedure illegality. The application made in chamber summons was supported by an affidavit of Juma Mussa Swalehe together with his statement, which was opposed by the counter affidavit of Prof. Eliamani Mathew Sedoyeka and Samwel K. Nyamanga. Principally, it was claimed by the applicant in his affidavit that, he was a student at the Institute of Accountant Arusha since 2020, was discontinued from studies contrary to procedures. In respondent's counter­ affidavit denied the fact, and filed a preliminary objection to the effect that a) Application is bad in law for being time-barred b) The affidavit is incurably defective for containing extraneous matters c) The application is bad in law for being prematurely brought. When the matter was before this court, with leave of the court

the PO was disposed of by way of written submission, however, it was overruled and the court went on ordering the application to proceed on merit. 2 During submission, the applicant enjoyed the service of Advocate Melchizedek Paul Hekima and State Attorney Zamarad Johanes represented the respondent. The applicant submitted that the application was filed due to the action of 1st respondent through the Examination Irregularities Committee's discontinuation from studies on 31 July 2023, and thereafter withheld his examination result. Dissatisfied with the decision lodged an appeal to the Academic Appeal Committee on 25 September, the matter was dismissed and the committee confirmed the decision of the Examination Irregularities Committee, he further appealed to the Governing Council on 30 October 2023, who never responded hence this application. The applicant submitted that for the application of judicial review to be granted the applicant must show there is an arguable case, there is sufficient interest and the application must be filed within 6 months. Submitted that all conditions were fulfilled under this application. That application was filed within 6 months, the decision tainted with illegalities and irregularities, and his interest would be undermined if he did not graduate from his studies. The applicant argued procedure and decision for terminating him from his studies

were unreasonable, and did not take 3 into consideration the matter ought to be taken into consideration; the discontinuation letters were tainted with illegality and irregularity. Therefore, the applicant made an application for leave so that may file a judicial review to quash the whole proceedings, judgment, and findings of the examination irregularity committee and compel the respondent to release the applicant's result and reinstate him to his studies. In reply, Ms. Zamarad submitted that the applicant did not meet the conditions set for application for leave to apply for judicial review, there must be an arguable case or prima facie case, the application must be filed promptly within 6 months, must have sufficient interest on the matter and no alternative remedy available to the matter. Argued the application has no leg to stand since the matter was not determined by the apex body for decision-making, which is the Governing Council of the institute, which laid the foundation of this application, therefore, it was prematurely brought. The applicant ought to compel the governing council to determine his matter and not to quash proceedings, judgment, and findings of the examination irregularity committee. The respondent chose not to file a rejoinder, in that regard, it is time for the court to determine if the application for leave to file judicial review 4 has merit. In the

case of Alfred Vs Town Director (Arusha) (1980) TLR 327 lays down the conditions that the court shall consider on granting leave for judicial review: a. Application must be made within 6 months after the act or omission for application for relief relates b. The applicant must demonstrate sufficient interest in the matter c. There is no alternative remedy d. There must be a prima facie case It is a law requirement under Rule 6 of Law Reform (Fatal accident and miscellaneous provisions Cap 310 RE 2019 (Judicial Review Procedure and Fees) Rules 2014 GN No. 324 that, the period for filing judicial review is 6 months. It was the submission of the applicant that on 25 September 2023, the decision of the examination irregularities committee was referred to the Academic Appeal committee. The Academic Appeal Committee upheld the decision of the examination irregularities committee, aggrieved with the decision the applicant appealed to the apex appeal body which is the Governing Council of the Institute on 30 October but the Council did not respond despite a reminder letter written by the applicant on 5th November 2023. Therefore applicant resorted to filing this 5 application. Considering this fact, the first condition is answered in the affirmative. The second condition is that the party must show interest in the matter. It is the testimony of the applicant on page 6 of his submission

that the decision was tainted with illegalities and irregularities, and his interest would be undermined if he did not graduate from his studies, the fact which was neither opposed by the respondent the second condition is also answered in affirmative. On the condition that there must be no other remedy, it was the testimony of the applicant that he exhausted all remedies while the respondent faulted that the applicant did not exhaust local administrative remedies. The respondent argued that regulations 23(6), 27(1), (2),(5) and (6), and 28(l)(e) of Assessment of Student Performance Regulation 2023 as amended from time to time was not adhered, the applicant exhaust remedy available to Examination Irregularities Committee; Academic Appeal Committee and the Governing Council of the Institute, however, the matter was not determined by the apex body which is Governing council, therefore the applicant could seek prerogative order to compel the Governing Council of the institute to determine the matter. It was the submission by the applicant that he exhausted all remedies. Going through court records, particularly the letter attached to the applicant submission, shows that, the applicant lodged an appeal to the apex body on 30 October 2023, and made a reminder in the letter dated 5th November 2023, however did not receive a reply. The respondents in paragraph 10 of their joint

counter-affidavit argued the applicant's appeal was yet to be determined by the Governing Council of the institute. The fact that the applicant filed an appeal to the governing Council of the institute on 30th October 2023, and made a reminder on 5th November 2023 but no response till the time of filing this case on 16/03/2024, speaks louder that there was no hope of responding on the appeal. The respondent would tell us how long will it take for the institute to respond to the filed appeal as per the Institute Customer Service Charter or appeal regulations, but no explanation on the same. That said, the fact reveals that there was no doubt that the applicant exhausted local administrative remedies. Another condition as to granting of leave is, that there must be a prima facie case. It is my view that the fact that the appellant claimed had an interest in the matter and his right was undermined, and the fact that 7 the respondent disputed that he ought to seek judicial review to the respondent by compelling to determine his appeal is sufficient to prove that the there is a triable issue. Above said, since my duty was to determine whether the condition for granting leave was fulfilled, there was an arguable issue, the matter was filed within time, there is no alternative remedy, and the applicant demonstrated sufficient interest for granting leave to file a judicial review. In my view, all conditions are met as per the case of Alfred Vs Town Director (Arusha). That said I have no reason to deny this application. In that upshot, 1. the applicant's application for leave for judicial review is hereby granted.

2. The applicant is required to apply for judicial review within fifteen (14) days from the date of this ruling.

3. No order as to costs

JUDGE 19/ 02/2025 8