mashauri khamisi vs pr secr ministry of home affairs others 2006 tzhc 338 4 april 2006

IN THE HIGH COURT OF TANZANIA AT TANGA M ISCELLANEOUS CIVIL APPL. No. 73/2003 MASHAURI K H A M ISI................ APPELLANT VERSUS 1. PR. SECR. MINISTRY OF HOME AFFAIRS 2. THE INSP. GEN. OF POLICE 3. THE CHAIRMAN PPSC - RESPONDENTS 4. THE ATTORNEY GENERAL RULING SHANGALI, J. The applicant Ex. Asistant Inspector of Police, MASHAURI KHAMIS have filed this application against the Respondents namely the Principal Secretary - Ministry o f Home Affairs (first respondent), The Inspector Genereal of Police (second respondent), the Chairman, Police and Prison service Commission (third respondent) and the Attorney General (fouth respondent) seeking for leave to apply for the prerogative orders o f CERTIORARI and MANDAMUS to firstly remove and bring in to this court the decision of ihe Inspector General of Police purporting to dismiss him with disgrace and quash it and secondly, to compel the Inspector General o f Police to re-instate him to his former position o f employment. The applicant also crave for the costs o f this application. The application has been made by Chamber summons under section 2(2) of the judicature and Application of Laws Ordinance, Cap 453, Section 17 and 17 (A) o f the law Reform (Fatal Accident and Miscellaneous provisions) Ordinance, Cap 360 as amended and duly supported by the applicants affidavit and statement of facts. According to the facts deponed in his affidavit and statement o f fact the applicant stated that he was employed by the Ministry o f Home Affairs as a Police Inspector from Dec, 1978 to October 2000 when he was unlawfully dismissed with disgrace from the force on allegations of soliciting and accepting bribe as contained in Annexture I to his affidavit. He deponed that such allegations were fabricated and pack of lies because there was no conrete evidence to justify and substantiate his involvement in corruption. The applicant avers that all his efforts to appeal against that decision to the Police and Prison Service Commission was unsuccessful because the Commission refused to hear and determine his appeal on merit hence denying him his constitution rights to be heard. He further complained that even the Attorney General has decided to remain silent on his notice to sue the Government which was sent to him as shown in Annexture 2 to the affidavit. In the respondents joint counter affidavit they denied all allegations tabled by the applicant and insisted that the dismissal of the applicant was proper and justified following his involvement in corrupt practices. It is not irrelevant to mention here that the above said respondent’s joint counter affidavit was filed together with two point o f preliminary objections which were later dropped and discarded by themselves. Again, following request from the applicant the hearing of this application was conducted by way o f written submissions and each side was given ample time as per the court schedule to file their written submission. Nevertheless, when the matter was called with a view to fix a ruling date the applicant had not filed his re-joinder, Instead he informed the court that he was no longer interested to file a re-joinder. In his written submissions the applicant narrated the whole proceedings, evidence adduced and decision o f the Martial Court purporting to challenge the same as if this application is an appeal against the decision o f the Martial Court. In essence there are matters of procedure which are not in dispute, namely that the applicant was Court Martialled under section C5 (XXV) o f the Police Force Service Regulations, 1995 as shown in the charge sheet Annexture MSI to the applicants written submission. Again, the trial was conducted procedurally and section C.6(4) o f the Police Force Service Regulation was complied with as shown in Annexture MS 3 to the written submission of the applicant; and in the final analysis the applicant was convicted as charged and the proceedings and findings o f the Martial Court was referred to the Commanding Officer, the Inspector General o f Police (2nd respondent) for award o f punishment in accordance with the Police General Orders No. 106 (31)(ii). Consequently the applicant was dismissed with disgrace. Being aggrieved with both conviction and sentence the applicant preferred an appeal to the Chairman Police and Prison Service Commission as shown in Annexture MS4 to the applicants written submission. It is at this stage where the applicant complains that his appeal was summarily dismissed by Commission; and that he was denied his constitutional rights and also the rules o f natural Justice were violated for denying him his rights to be heard. In otherwords he was condemned unheard and his apapeal was not determined on merits. To my understanding this is the crux o f the whole application. The question is whether such complaints has any merits to warrant intervention of this court by way of prerogative orders. In their reply to the applicants written submissions, Mr. Luoga, Learned State Attorney who represented the respondents started by referring this court to the case o f SANAI MURUMBE AND ANOTHER VS. MUHERE CHACHA (1990) TLR 54 where the Court of Appeal of Tanzania listed down six conditions which the High Court is entitled to investigate in the proceedings of the lower Court or Tribunal o f Public authority before granting the remedies of prerogative orders. The conditions are; One, that the subordinate Court or Tribunal or Public authority has taken into account matters which it ought not to have taken into account; Two, that the Court or Tribunal or Public authority has not taken in to account matters which it ought to have taken into account; Three, lack or excess of jurisdiction by the lower court; Four that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it; Five, rules of natural Justice have been violated and six, illegality o f procedure or decision. Mr. Luoga, Learned State Attorney submitted that the applicant’s case before the Court Martial was cordially and fairly tried and determined. Regarding to the appeal process and decision of the Commission, Mr Luoga submitted that the appeal filed by the applicant to the Chairman, Police and Prison Service Commission is Governed by Police General Order No. 106 (33)(a) and (b). He contended that under those regulations the appellant has no right to argue his appeal but only to submit his representantion in writing, setting out his grounds for appeal to the Officer hearing the case. Thereafter the Officer has a duty of dispatching the complete case papers to the Commanding officer who finally has the obligations o f transmitting the case paper to the Commission. Mr. Luoga submitted that the legal procedures were perfectly adhered to and the Commissioners decision was duly communicated to the applicant. On the strength opf the foregoing submission and position o f the law it is apparent that the applicants complaint is based on the treatment o f his appeal before the Commissioner. That, the Commissioner summarily dismissed his appeal without giving him a hearing contrary to the natural justice norms. However, having heard Mr. Luoga’s submission on this point and having gone through the relevant law which is Police General Orders No. 106(33)(a) and (b), I have no doubt that the applicant’s complaint is baseless. It seems the applicant is not convesant with those regulations because they provide no room for the appellant to appear and argue his appeal before the Commission. For avoidance of doubt let me quote the whole provision in ex-tenso; “33(a)........................................ (0..................................................... 00.............................. (iii)........................................ (iv ) ...................................... (v) If the defaulter wishes to appeal, he shall submit his representation in writing, setting out the grounds for his appeal to the Officer hearing the case. The latter will add his own comments on P.F.32 and will dispatch the complete Case papers to his Commanding Officer for his comments to be added to P.F. 32 and for onward transmission to the Commissioner. (b) 9 (i) The Commissioner will endose his decision on P.F 32 and on both copies of P.F. 32 A. Will be filed in Police Headquarters and the remaining cae papers will be returned to the defaulter’s commanding Officer. (ii)The Commanding officer will detach and file the remaining copy o f P.F 32 A and send the case paers and P.F. 32 to the Officer who heard the Case. (iii) The Officer who heard the case will inform the defaulter of the result of his appeal and certify on P.F. 32 that he has done so. He will then arrange for implementation of any punishment imposed on the defaulters personal file. (c)................................... ” As I have pointed above, and in my understanding of that law, I have no hesitation to join hands with Mr. Luoga, Learned State Attorney that the law does not give the appellant a chance to appear before the Commissioner on appeal. The procedure is vividly clear that the applicant was required to submit his representation in writing, setting out his grounds for his appeal to the Officer hearing the case. The record is clear that the applicant complied with that requirement as shown in Annexture MS4 to his written submissions; and later the Commissioner endosed his decision. Therefore one can not under any stretch of imagination claim that the Commissioner refused to hear and determined the applicants appeal on merit or that he was deliberately denied his right to be heard. If I may be excused, it appears that after getting a negative answer on his appeal from the Commissioner the applicant turned round and attacked the Commissioner for condemning him unheard knowing that such right were unavailable at the appeal stage. Be as it may, I am convinced that this is not a proper application for grant of remedies of Certiorari and Mandamus. The Martial Court and the Commission took into account all matters which it ought to have taken into account within its jurisdictions and reached a reasonable and lawful decision. The procedures were properly followed in accordance to both the Police Force Service Regulations, 1995 and Police General Orders No. 106. For the above reasons this application for leave to apply for orders of Certiorari and Mandamus is refused and dismissed with costs. It is so ordered. JUDGE 4/4/2006. This rulling to be transmited to the District Registrar, High Court at Tanga for delivery before the parties as early as practicable.