kevin peter makaranga vs police force immigration and prison service commission and others 2021 tzhc 3766 23 june 2021

IN THE HIGH C O URT OF TA N ZA N IA (M AIN REG ISTRY) AT DAR ES SALAAM M ISC ELLA N EO US C AUSE NO. 7 OF 2021 In the m atter of an ap plication fo r o rder of c ertiora ri and m andam us. IN THE M A TTER OF DISM ISSA L FROM EM PLO Y M EN T OF KEVIN PETER M A KA RA N G A BETW EEN KEVIN PETER M A K A R A N G A ......................................................A PPLIC A N T AND THE PO LICE FO RCE IM M IG RA TIO N AND PRISON SERVIC E C O M M IS S IO N ................................ 1*t RESPO NDEN T THE PERM A NEN T SEC RETARY M INISTRY OF HO M E A F F A IR S .............................................. 2 nd RESPO NDEN T THE ATTO RNEY G E N E R A L ......................................................3 rd RESPO NDEN T RULING 05/05/2021 & 23/06/2021 M asoud J. The A pplicant herein brought this application under Rule 8 (l)(a )(b ) and (2) of the Law Reform (Fatal A ccident and M iscellaneous Provisions) (Judicial Review, Procedure and Fees) Rules, 2014, praying for the follow ing: - a) An order for certiorari quashing the follow ing: - i. Whole proceedings, judgement and findings dated 16th day of March, 2018for being tainted with serious illegalities both of procedure and decision; for being very unreasonable that no reasonable authority could have reached to that decision; for lack of reason by both not taking into account matters which ought to have been taken into account and not taking into account matters which ought to have been taken into account. ii. Letters dated 06th day of July, 019 and 14th of April, 2020 by the 1st Respondent as while the former is a decision reached by the 1st Respondent terminating the Applicant from her employment without any justification to exercise such powers, the latter is a letter upholding the former. b) An order for mandamus compelling the 2nd Respondent to reinstate the Applicant as the decision for his dismissal from employment was in total violation of the principles of natural justice and lack of jurisdiction by the 1st Respondent. c) Costs of the application. d) Any other relief which the honourable court shall deem fit and just to grant in favour of the Applicant. Instead of oral, parties made their submissions in writing pursuant to the order of this court. The Applicant opened the ground by submitting on the question of jurisdiction of the 1st Respondent to terminate the Applicant’s employment. He explained that such power can only be exercised by 2nd Respondent upon recommendation by Inspector General of Police and if aggrieved by the decision of the 2nd respondent could lodge an appeal to the 1st respondent. He went on referring the provisions of Regulation 3(1), (3)(c) and (4) (b) of the Police Force Service Regulations, 1995 which stipulate powers of Inspector Genera of Police to discipline police Officers with the rank of Assistant Inspector to the rank of Assistant Commissioner, the powers which ceases if the punishment proposed is that of reduction in rank. Where the Inspector General of Police ceases to have jurisdiction, he has to submit the report on the investigation of the charge together with other detail of the matters to the 2nd Respondent. He further submitted that the Inspector General of Police acted in accordance with the law by submitting the report to the 2nd Respondent for further action against the Applicant but without jurisdiction the 1st Respondent terminated the Applicant from employment via letter dated 6th July, 2019. In response, the Respondents submitted that the termination was lawful in the sense that the Applicant was charged and held guilty of three offences relating to the breach of good order and discipline. The order of dismissal was given after proceedings of military tribunal was submitted to the inspector General of Police who submitted the same to the 2nd Respondent. Looking at the rival submissions, the Applicant is disputing the act of the Police Force, Immigration and Prison Service Commission (1st Respondent) to terminate the Applicant’s employment. It is the Applicant's argument that the 1st Respondent acted without jurisdiction. The respondents submitted nothing in response to this allegation. Instead, they submitted in respect of the composition of the military tribunal which is not disputed by the Applicant. Disciplinary machinery of Police Officer is provided under part IV of the Police Force Service Regulations, GN No. 193 of 2015. Regulation C.3.(1) provides; Subject to the provisions of 7(3) of The Police Force and Prison Service Commission Act, the disciplinary authority in the case of any Police Officer of the rank of Assistant Inspector to the rank of Assistant Commissioner shall be the inspector General, and the final disciplinary authority is vested in the Commission. In the case at hand, having concluded making inquiry and gathering important evidence and information relating to the matter, the tribunal composed by the Inspector General was of the opinion that due to the weight of the evidence adduced the punishment would probably fall under the category specified in Regulation C.3.(3). He therefore submitted the report to the Permanent Secretary Ministry of Home Affairs (2nd Respondent). From the record, the decision to terminate the Appellant was made by the Police Force Immigration and Prison Service Commission (1st Respondent) as per annexure LL1 to the Applicant’s affidavit, which by virtue of Regulation C.3. (1) is the final authority. The said Commission is only entitled to entertain an appeal challenging the decision. In Fanuel Mantiri Ngunda vs Herman M Ngunda and others (CAT) civil appeal No. 8 of 1995, the court commented; “the question of jurisdiction is fundamental that courts must as a matter of practice on the face of it, be certain and assured of their jurisdictional position at the commencement of trial. It is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon cases" I entirely agree with the Appellant that the decision made by the 1st Respondent to terminate the Appellant from employment was not only made without jurisdiction but also denied Appellant forum for appeal. This ground alone is enough to dispose of the matter without considering the remaining grounds. Nonetheless, I find it important to address them albeit briefly. This application was also grounded on violation of principles of natural justice as the proceedings before the military tribunal as well as the decision of the 1st Respondent was arrived without giving reasons, lack of analysis of evidence and recommendations. The same was rebuked by the Respondents saying that from page 151 to 155 of the tribunal’s proceedings, the analysis ot evidence, and reasons given for the findings are quite apparent. Consequently, the allegations of the Applicant lack basis. Going through annexure OSG1 which is the judgment of the Tribunal, it is clear that page 151 contains a title named "M A O N I." In my findings, the said part carries the analysis of the evidence and reasons for the findings and the same extends to page 155. As such, I find the allegation with no merits. There was equally allegation that the military tribunal was a judge, a complainant, and a prosecutor. The same was denied by Respondent in their joint submission that the military tribunal was duly constituted in accordance with the provision of Regulation C.6.(2) and (3) of the Police Force Service Regulations of 1995 as amended by GN 406 of 2013. The said Regulation mandate Inspector General of Police to appoint prosecutor for any inquiry. Since the Military tribunal is empowered to make inquiry for the purpose of collecting evidence, its roles end up with proposing punishment, which has to be imposed by another entity. It is in this respect not proper in my view to hold that the Military Tribunal is performing double role. It was also submitted by Applicant that he was condemned unheard as he was not given a chance to examine documentary evidence against him before hearing. The same was disputed by Respondents on the ground that the Applicant was afforded the right to be heard and was supplied with all necessary documents at the beginning of proceedings as per page 3 of the military Tribunal proceedings. From the proceedings there was an order for the Applicant to be supplied with all necessary documents such as detention Register, R/B ya kosa MK/IR/108/2013, certified copies of exhibit register and Simu za FWM. The foregoing notwithstanding, there was no mention of a memory stick (flash) which was admitted as part of evidence of PW 12 and named as EP 7. Indeed, this piece of evidence (the memory stick) was not previously supplied for examination by the Applicant as require by Regulation 6(6). There is no doubt that the applicant was denied the right to prepare his defence for his case in relation to the said piece of evidence. Hence, the applicant’s right to be heard was in this context not observed by the tribunal. This omission which relates to non-compliance with regulation 6(6) is fatal to the proceedings and is accordingly answered in the favour of the Applicant. The applicant has challenged the findings of the 1st Respondent for being unreasonable for failure to take cognizance of the punishment proposed by the Tribunal who presided over the matter instead substituted by termination of Applicant’s employment. He went on saying that had the tribunal found it important to terminate the employment, it would have suggested so. For such a reason, the decision of the 1st Respondent was outrageous and unreasonable. Undoubtedly, the above discussion establishes and concludes that the 1st respondent not only acted in excess jurisdiction, but also acted unreasonably. The applicant submitted in relation to the allegation of illegality of the procedure and the decision arguing that the tribunal based its decision and the evidence used on matters which were not adduced by the parties. Consequently, the tribunal found the Applicant guilty of a corruption offence on the strength of the evidence that he was bribed by one Dickson Philipo Bavumbi. Although Dickson Philipo Bavumbi was a key witness in substantiating the offence of corruption, he was not called to testify before the tribunal. In the absence any other concrete evidence, the testimony of other witnesses remains a hearsay. The Respondents reacted to the above submissions, saying that the decision arrived at by the tribunal was based on the evidence adduce by a total of 12 witnesses during the trial tribunal’s proceedings. They seem to say that the evidence supported the finding reached. I hold in line with the submission of the Applicant that, the offence of corruption ought to be proved beyond reasonable doubt. From the circumstance of the alleged offence, the one who bribed the applicant was important witness to testify on the commission of the offence. Unfortunately, the prosecution could not procure the said Dickson Philipo Bavumbi who is said to have bribed the applicant to prove the allegation. Of significance, the tribunal did not also address itself to the fact that such witness was crucial and yet he was not called to testify. In this regard, I am of the finding that there was failure of taking into account matters which ought to have been taken into account. The failure is undoubtedly fatal to the proceedings and has seemingly led to miscarriage of justice. Considering the above discussion, it is important to answer the issue whether the applicant has made his case on the application for orders of certiorari and mandamus. The principles governing judicial review of administrative bodies are well addressed in famous case of Senai Murumbe and another vs Muhere Chacha (1990) TLR 54, to be Illegality, violation of principles of natural justice, irrationality, and proportionality (reasonableness). These grounds are also stated in Council of Civil Service Union vs Minister for the CiVil Service, [1985] AC, 374, 410 and Lausa Alfan Salum and 116 others vs Minister for Lands Housing Urban development and national Housing Corporation, [1992] 293 In light of the discussion above, the raised issue has been answered in the grounds of illegality, excess of jurisdiction, and violation of principles of natural justice. The application is therefore with merits for the reason stated. I am accordingly prepared to grant the prayers sought. In the upshot, for reasons set out herein above, I find the application meritorious and would as I hereby do so, allow it as the Applicant has in my considered view made out his case. Accordingly, the order of certiorari as sought in the chamber summons and reproduced herein above is hereby granted as is the order for mandamus which is equally herein granted as prayed in the chamber summons and reproduced herein above. Having considered the circumstances of the matter and the orders already granted herein, I would decline to make any order as to costs. It is so ordered. Dated and Delivered at Dar es Salaam this 23rd day of June 2021 B. S. Masoud Judge 12