Mhando Bakari Application Ruling Final 2

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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MISCELLANEOUS CIVIL CAUSE NO. 22655 OF 2024 IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, [ CAP. 310 R.E. 2019] IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) (JUDICIAL REVIEW PROCEDURE AND FEES) RULES GN. NO 324 OF 2014

IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW BY MHANDO

BAKARI MHANDO FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF PUBLIC SERVICE, THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA, BEING A FINAL APPELLATE AUTHORITY ACTING

ILLEGALLY

BETWEEN MHANDO BAKARI MHANDO……………………………………………APPLICANT AND THE ATTORNEY GENERAL..................................................1ST RESPONDENT CHIEF SECRETARY………………………………………………….2ND RESPONDENT

RULING Date of last Order: 18/10/2024 Date of Ruling: 31/10/2024 MWAKAPEJE, J.: The applicant Mhando Bakari Mhando filed this application by way of chamber summons under section 2(3) of the Judicature and Application Page 2 of 21 of Laws Act Cap 358 R.E. 2019, section 17(2) of the Law Reform (Fatal Accidents Miscellaneous Provisions Act, Cap 310 R.E. 2019 and Rule 8(1)(a),(b),(2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedures and Fees) Rules, GN.324 of 2014. The applicant filed the present application after being granted leave by this Court in Miscellaneous Civil Cause No. 11306 of 2024 on 10/07/2024. This application is supported by his sworn affidavit and statement in which he prayed for the writs of certiorari and mandamus, contending that he was dismissed from his employment without being afforded the opportunity to be heard. Before moving further, the historical background that led to this application is significant and worth narrating. The applicant was a public servant stationed at Nyang’hwale District Council, serving as a human resource officer. In his affidavit, the applicant stated that on 12/05/2020, he was charged with forging information in the Human Capital Management Information System (HCMIS) by adding or deducting loans borrowed by the district employees from the financial institutions. On 04/11/2020, he

was summoned to appear before the Committee of Inquiry on 06/11/2020 for the hearing. Further, he asserted that upon Page 3 of 21 arriving at the designated venue, the inquiry committee was nowhere to be found. Subsequently, on 23/08/2021, he received a termination letter. His appeals to the Public Service Commission and the President, as indicated by letters with reference Nos. CEB.812/276/10/”A”/31 and CAB.30/536/PF.10075/11 dated 09/08/2022 and 21/08/2023, respectively, were unsuccessful. Following the exhaustion of all available remedies, the applicant has approached this court for judicial review, arguing that he was dismissed from his position as a human resources officer without being granted a fair hearing, considering that the procedure of his termination was flawed. The grounds upon which the writs of certiorari and mandamus are sought are stated in paragraph 4 of his statement that: i. The applicant was denied the right to be heard before being terminated from his employment by the first-instance disciplinary body (Nyang’wale District Council councillors) as the applicant was not given the right to call witnesses or defend himself against the charges, as well as to cross-examine witnesses and examine documents used by the complainant to prove the charges against him. ii. The second respondent dismissed the applicant’s appeal without considering that his termination

was based on procedural irregularities, including the investigation being conducted for 172 days beyond time without extension of time, and he was terminated based on additional charges that were Page 4 of 21 not properly served to the applicant for defence nor made known to him prior to termination. During the hearing of the application, the applicant had the services of Mr Siwale Yisambi, a learned advocate, while Mr Allen Mbuya, a learned State Attorney, appeared for both respondents. Mr Siwale was the first to take the floor. Adopting the applicant's affidavit and the statement, on the first ground, Mr Siwale submitted that the applicant’s right to be heard, as articulated in paragraphs 4, 8, and 10 of his affidavit, was violated. He explained that the charge was initially issued to the applicant on 12/05/2020, accusing him of forging information in the Salary Payment System, commonly known as the Human Capital Management Information System (HCMIS). He further contended that the disciplinary decision rendered on 23/08/2021 cited two different offences: entering false information regarding employees' loans into the salary payment system, contrary to Regulation 42(1) of the First Schedule of the Public Service Regulations of 2003, as amended; and failing to perform duties in accordance with the public service code of ethics, contrary to Regulation 42(14) of the First Schedule

of the Public Service Regulations of 2003. He further submitted that Regulation 47(8) of GN No. 168 of 2003 required that any additional charges be communicated to the accused, Page 5 of 21 granting them an opportunity to respond. In this case, despite the change in the nature of the charges, it was the submission of Mr Siwale that the applicant was not served with any new charge sheet or given the opportunity to defend himself against these additional allegations. This failure, he argued, warranted the court’s intervention to review and set aside the decision to dismiss the applicant from employment. Additionally, Mr Siwale highlighted that the applicant had stated in paragraphs 5, 6, and 10 of his affidavit that he was not present before the inquiry committee and was not allowed to cross-examine witnesses or present his defence. He argued that although the applicant received notice to attend the Committee of Inquiry on 6/11/2020, he was informed upon arrival that the Chairman was on leave and would notify him of a rescheduled date, which was never received, thereby denying him a fair hearing and hence Regulation 47(1), (2), (3), and (4) of the Public Service Regulations were violated as the applicant was denied the right to examine the evidence against him, cross-examine witnesses, and present his own witnesses. On the second ground of procedural delays, Mr Siwale

submitted that the applicant was initially charged on 12/05/2020, but the notice to attend the inquiry committee was issued only on 04/11/ 2020, 172 days later. He pointed out that Regulation 47(10) required that disciplinary Page 6 of 21 inquiries be completed within 60 days, with an extension of up to 30 days, and that failure to meet these timelines had adversely affected the applicant's right to a timely hearing. This delay, he argued, further justified the court’s intervention. Lastly, Mr Siwale submitted that the respondents' counter-affidavit was filed late on 23/09/2024, despite a court order requiring it to be filed by 22/09/2024. He argued that this late filing violated procedural rules and urged the court to consider expunging it from the record. In response, Mr Mbuya, while adopting their counter affidavit and statement thereto, opposed the application. He argued that the disciplinary process was conducted in full compliance with the Public Service Regulations G.N No. 444 of 2022. He further stated that the applicant was properly served with a charge sheet on 12/05/2020, specifying the forgery of information in the Human Capital Management Information System (HCMIS). He added that the inquiry committee conducted its proceedings in accordance with Regulation 46(4), with all members present. Contrary to the applicant's assertions, Mr Mbuya submitted that the inquiry

committee’s report showed that the applicant was given the opportunity to present his defence, and the report detailed the questions posed to him and his responses. He was of the view that the applicant’s Page 7 of 21 claim that he was not heard or allowed to cross-examine witnesses was unsubstantiated by the record. He further noted that the inquiry process adhered to the principles of natural justice and therefore that his affidavit contained false information, citing the case of Rhoda Henry (the Administratrix of the late Henry Thobias) vs Samwel Lyande and 9 others (Misc. Land Case Application No. 86 of 2021) [2022] TZHC 3038 (5 May 2021), which cited the cases of Damas Assey and Another vs Raymond Mgonda Paula and Others (Civil Application No. 32 of 2018 [2019] TZCA 161 (17 April 2019) and Ignazio Messina vs Willow Investment SPRL, Civil Application No.21 of 2001 and the case of Beyond Travel Limited vs Didas James (Misc. Labour Application 1 of 2021) [2021] TZHC 3178 (12 May 2021), to bolster his argument. He urged the court to disregard the applicant’s affidavit and dismiss the application for lack of credible evidence. Regarding the counter-affidavit filing date, Mr Mbuya acknowledged that it was filed on 23/09/2024, as 22/09/2024 fell on a Sunday. He prayed for the court’s indulgence regarding this minor delay. Having heard the parties' rival submissions, this court

will determine whether the applicant’s application is meritorious. However, before I proceed with the same, I have to, first and foremost, address the last question pertaining to the counter-affidavit to Page 8 of 21 be filed on 23/09/2024 instead of 22/09/2024, as the same should not detain this court in the determination of the application. It is common ground that when a deadline falls on a weekend or holiday, the party has until the end of the next business day to comply. In this application, the court’s order fell on Sunday, 22/09/2024. Since the same was filed on the immediate next working day, and in the circumstances of this case, I consider it timely filed. Now, coming to the grounds of the application, the applicant sought orders of certiorari and mandamus to quash the decision of the 2nd respondent to terminate his employment and reinstate him as he was not given a fair hearing and to order for his reinstatement. I elect to commence with the prayer for granting the orders of certiorari just as the applicant presented them. The prerogative remedy of certiorari is available to quash the decisions that were unlawfully reached. In Lewis, Clive. Judicial Remedies in Public Law. London: Sweet & Maxwell, 1992, the author, on page 172, observed as follows: “The primary purpose of certiorari in modern administrative law is to quash an ultra vires decision. A certiorari is

technically an order bringing a decision of a public body to the High Court so that the court may determine whether the decision is valid. Page 9 of 21 Where the decision is ultra vires, certiorari will be issued to quash the decision…” In our jurisdiction, this order is issued by this court to quash the proceedings of a decision of a subordinate court, tribunal or a public authority where there is no right to appeal. In the case of Sanai Murumbe and Another vs Muhere Chacha (1990) TLR 54, the Court of appeal stated as follows: “the High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds apparent on the record: (a) taking into account matters which it ought not to have taken into account; (b) not taking into account matters it ought to have taken into account; (c) lack or excess of jurisdiction; (d) That the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it; (e) rules of natural justice have been violated, and (f) illegality of procedure or decision.” [Emphasis supplied] In this application, the applicant has applied to this court for named orders for this court to quash and revise the decision of the President made on 06/08/2023 confirming his termination from employment. The alleged decision of the President was made through a letter dated 21/08/2023, which is contained in annexure “A” of his affidavit, which is Page 10 of 21 a letter with the following reference: Kumb. Na. CAB.30/536/PF.1075/11 from the Office of the President to Mhando Bakari Mhando, the applicant. The said letter is titled YAH: UAMUZI WA

RUFAA YAKO KUPINGA UAMUZI WA TUME YA UTUMISHI WA UMMA, loosely translated as “RE: APPEAL DECISION AGAINST THE DECISION PUBLIC SERVICE COMMISSION DECISION." The said letter actually did uphold the decisions of both the Public Service Commission and Disciplinary Authority of Nyang’hwale District Council in its letters dated 09/08/2022 titled UAMUZI WA TUME

KUHUSU RUFAA YAKO KUPINGA ADHABU YA KUFUKUZWA KAZI and a letter dated 23/08/2021 titled UAMUZI WA SHAURI LA NIDHAMU, loosely translated as "THE DECISION OF THE COMMISSION

REGARDING YOUR APPEAL AGAINST THE PUNISHMENT OF DISMISSAL FROM EMPLOYMENT" and "DECISION ON THE DISCIPLINARY CASE", respectively. The applicant’s two appeals against the decision of the disciplinary authority were unsuccessful, resulting in the present application. The core complaint is that he was condemned unheard by the Inquiry Committee, a claim which was dismissed by the two appellate bodies and subsequently upheld his termination from employment. Now, in dealing with the applicant’s application, this court is simply tasked to ascertain the correctness of the procedure under which the Page 11 of 21 decision was arrived at. In so doing, I will address whether the procedure of terminating the applicant’s employment was accordingly adhered to as per the Public Service Regulations of 2003, GN. No. 168 of 2003 as they were the ones applicable and in force by the time the applicant was charged with a disciplinary offence, unlike what was referred to by Mr Mbuya. It is apparent that if the applicant’s assertion in his sworn affidavit is anything to go by, it is, therefore, the President who terminated his employment after affirming the decision of the disciplinary authority of Nyang’wale District and that of the Public Service Commission. Upon my perusal of the annexures, on 12/05/2020, the applicant was served by the disciplinary authority with the notice of accusations together

with the charge containing the offence under which he was alleged to have committed. In the annexure “A” “NOTISI”, the applicant was informed to prepare his defence in writing within 14 days. Also, the applicant was, as well, invited to appear before the Committee of Inquiry on 6/12/2020 through a letter with reference: Kumb. Na. NDC/PF/496/VOL.1/32 dated 04/11/2020 termed as annexure “A”. Normally, in proceedings of this nature, the disciplinary hearing proceedings are commenced by a charge under Regulation 44(3) of Public Service Regulations. The same provides that the charge should contain a Page 12 of 21 brief on the nature of the offence together with the statement of the allegations. In the present application, I will start with the charge against the applicant. The same was formulated as follows: - “Shitaka: Kughushi taarifa za watumishi katika mfumo wa malipo ya mishahara (HCMIS). MAELEZO YA SHITAKA: Mnamo tarehe 01/04/2020 nilipokea barua yenye kumb. … kutoka Ofisi ya Katibu Mkuu (OR- UTUMISHI) kuhusu mwenendo usioridhisha wa matumizi ya mfumo wa taarifa za kiutumishi na mshara (HCMIS) wa Bw. Mhando Bakari Mhando… Aidha, katika barua hiyo umetuhumiwa kughushi taarifa zinazohusu mikopo ya watumishi bila ya kupata kibali kutoka kwenye taasisi za mikopo husika.” This is loosely translated as follows: “Charge: forgery of employees information in the Payroll System

(HCMIS). PARTICULARS OF OFFENCE: On 01/04/2020, I received a letter with ref. No. … from the Office of the Permanent Secretary (OR- UTUMISHI) regarding the unsatisfactory conduct of the use of the Human Capital Management Information System (HCMIS) by Mr Bakari Mhando Mhando... Furthermore, in that letter, you have been accused of falsifying information regarding employees' loans without obtaining consent from the respective lending institutions." Page 13 of 21 The format of the charge under regulation 44(3) is stated to be in the form provided for under Part A of the Second Schedule to the Public Service Regulations. This Regulation provides that: “The disciplinary charge or charges may be in the form laid down in Part A of the Second Schedule to these Regulations and shall state briefly the nature of the offence which the accused public servant is alleged to have committed, together with the statement of allegations on which the charge is based.” [Emphasis supplied] To expound further on this provision, a charge should, therefore, be clearly written; it should state the offence without ambiguity, specify the legal provision (section of the law, regulation, or statute) that has been contravened, and provide a description of the Offense. The essence of this provision is to enable the accused public servant to understand the nature of the allegations against them, prepare for

his defence, and ultimately give him a fair trial. In the case of Awadhi Abrahamani Waziri versus The Republic; Criminal Appeal No. 303 of 2014: Court of Appeal of Tanzania at Arusha (Unreported), it was stated that: The importance of proving the offence as alleged in the charge hardly needs to be over-emphasized. From the charge, the accused is made aware of the case he is facing with regard to the time of the incident and place so that he would be able to marshall his defence. [Emphasis supplied] Page 14 of 21 Looking at the charge reproduced herein above, one would ask if the same has complied with the said provision. To me, the answer appears to be in the negative, prompting me to ponder whether the first respondent, precisely the Attorney General, was indeed consulted in the formulation of this charge, as far as the stipulations outlined in Regulation 44(4) of the Regulations are concerned. I say so because the same is wanting as it has not specified the provision of the law that was violated, and it has a vague description of the offence, as it just states “forgery of employees information in the Payroll System (HCMIS)” without telling what specific information was falsified and how did the forgery take place, for instance, entering false data, forging signatures, and altering records. Additionally, the charge has insufficient particulars of the offence, which are also

vague and lack the necessary details. While the charge mentions that the accused was "falsifying information regarding employees’ loans without obtaining consent from the respective lending institutions," it does not clarify which specific employees' information was falsified, it does not explain how the forgery was carried out, nor does it specify the impact of the alleged forgery, such as whether loans were processed incorrectly if it caused financial harm, or if any other parties were affected. Page 15 of 21 Furthermore, the said charge does not specify what the exact nature of the falsification or forgery was and where the alleged forgery took place, i.e., at a specific office, region, or department; it only refers to the HCMIS. The charge mentioned only the date, i.e. 01/04/2020, when a letter was received from the Permanent Secretary, not when the forgery allegedly occurred. Also, there is no motive or purpose of the alleged forgery that is provided, which could help the applicant contextualise the accusation. It is trite law that when a charge misses an essential ingredient of the offence, the same becomes incurably defective. See the cases of Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011 and Angulile Jackson @ Kasanya v. DPP, Criminal Appeal No. 162 of 2019 (both unreported). Lastly, the charge herein is not connected to the particulars of the offence. The

charge mentions forgery in the Payroll System (HCMIS), but the particulars primarily discuss a letter from the said Permanent Secretary regarding “unsatisfactory conduct" without clearly connecting this to the alleged forgery. Therefore, the same cannot be considered to have given the accused a fair trial to enable him to prepare for his defence since it was defective. Secondly, and still on the charge, it is apparent that the charge served to the applicant on 12/05/2020 contained one offence. However, Page 16 of 21 the termination letter contained two offences. The law on this is very clear about additional charges against the accused public servant. The same should be made in compliance with Regulation 47(8) and (9) of the Public Service Regulation, 2003 which provides that where an additional charge is preferred against the employee, the said charge shall be served to the employee. The implication is, of course, that the accused has to reply and make his defence on the charges added. In the instant application, evidence shows that the applicant was issued with a charge of forgery. However, he was terminated from employment for having been found guilty of two offences, according to his termination letter from the disciplinary authority with Ref. No. NDC/CPF/496/12 dated 23/08/2021, which decision was confirmed by the two appellate bodies. The said offences were as

follows: “1. Kuingiza taarifa za uongo kuhusu mikopo ya watumishi katika mfumo wa malipo ya mishahara (HCMIS) kinyume na kanuni ya 42 (1) Jedwali la Kwanza ya Kanuni za Utumishi wa umma za mwaka 2003 ikisomwa pamoja na marekebisho yake. 2. kutofanya kazi kwa kuzingatia maadili ya utumishi wa umma kinyume na kanuni ya 42(14) Jedwali la kwanza ya kanuni za utumishi wa umma za mwaka 2003 ikisomwa pamoja na marekebisho yake.” This is loosely translated as follows: Page 17 of 21 "1. Inserting false information about employees' loans into the Human Capital Management Information System (HCMIS) contrary to regulation 42(1) of the First Schedule of the Public Service Regulations of 2003 as read together with its amendments.

2. Failure to comply with the code of ethics of public service contrary to regulation 42(14) of the First Schedule of the Public Service Regulations of 2003 as read together with its amendments." From the above excerpt, it is evident that the applicant was dismissed from employment due to being found culpable of two offences. Despite the wrong citation of provisions pertaining to the aforementioned charges in the Regulations and their delineation in a disparate manner by the first appellate body, there exists no evidence indicating that the second charge was served to the applicant since there is no notice or any other form of communication regarding the supplementary charge against him. It is discernible from this disclosure that the applicant’s case should have collapsed from the outset, as he was not duly charged and consequently subjected to the ramifications of the defective charge. Moving forward, the applicant contended that he was not heard by the composed committee of inquiry, while in the counter affidavit, the respondents aver that he was heard as evidenced by annexure “HN”. In essence, annexure “HN” is not the proceedings but rather a report named “TAARIFA YA UCHUNGUZI JUU YA TUHUMA YA KUGHUSHI NYARAKA KATIKA MFUMO WA TAARIFA ZA MISHAHARA (HCMIS) ZINAZOMKABILI Page 18 of 21 NDUGU BAKARI MHANDO AFISA UTUMISHI.” This is simply translated as

REPORT ON THE INVESTIGATION OF ALLEGATIONS OF FORGERY OF DOCUMENTS IN THE PAYROLL INFORMATION SYSTEM (HCMIS) FACING MR. BAKARI MHANDO, A HUMAN RESOURCES OFFICER I. Apart from the said annexure "HN," which is lacking and regrettably lacks clarity regarding its origination, there are no proceedings appended to the report in accordance with Regulation 48 of the 2003 Public Service Regulations. Mr Mbuya affirmed that the applicant underwent interrogation as delineated on pages 13-15 of the aforementioned report, yet he omitted to specify whether the opportunity for cross-examination of the prosecution witnesses and self-defence, as well as the calling of witnesses, was granted as required by Regulation 47(1), (2), (3), and (4). Furthermore, the applicant's assertion that upon being summoned by the inquiry committee, the committee was conspicuously absent on the specified date was left unchallenged by the respondents. In light of the absence of documented proceedings for this court to verify this claim, it becomes exceedingly arduous to accept the occurrence of a hearing. Hence, I concur with the applicant's argument that he was indeed summoned by the committee, albeit on the appointed date, the said committee was nowhere to be found; therefore, he was not afforded the opportunity of being heard. Page 19 of 21 To me, this was a grave mischief. As previously mentioned, if a hearing

had occurred on any date other than the one specified in the hearing notice served to the applicant, the respondent should have accurately documented the proceedings accordingly, unlike in the current application, where such evidence is noticeably lacking. Therefore, I am not swayed by Mr Mbuya's argument that the applicant's affidavit contained false information without any supporting evidence, rendering the authorities he cited inapplicable in this context. In the case of Mbeya- Rukwa Autoparts and Transport Limited vs Jestina George Mwakyoma (2003) TLR 251, in which the English case of Ridge vs Baldwin (1964) A.C 40 was relied upon, our Court of Appeal explicitly stated that: “in this country, natural Justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13(6)(a) includes the right to be heard among the attributes of equality before the law." Also, in the case of Tenelec Limited vs. The Commissioner General, Tanzania Revenue Authority (Civil Appeal 20 of 2018) [2018] TZCA 50 (03 July 2018), it was inter alia stated that: “The right of a party to be heard before the adverse action or a decision is taken against such a party is a basic constitutional duty and that any violation of which nullifies the entire proceedings” Page 20 of 21 In this particular case, it was imperative for the disciplinary authority and the two

appellate bodies to ensure that the applicant was given an opportunity to present his case before reaching a decision on the charges against him. The failure to adhere to this fundamental principle tainted the proceedings and subsequent decisions, as it constituted a grave violation of the applicant's constitutional right to a fair hearing. Consequently, the entire proceedings and decisions made thereafter were vitiated due to the defectiveness of the charge, significantly infringing upon the applicant's right to a fair hearing. Despite the failure to comply with the requisites governing procedures for conducting inquiries of this nature, and considering that this flaw is sufficient to dispose of the application, it is unnecessary to delve into the other raised issues regarding procedural irregularities in the proceedings of the Committee of Inquiry, particularly since the respondents did not dispute them. That being said and done, and considering that the judicial review is specifically designed to scrutinise the legality and procedural propriety of how the decision was made by the respective authority, I am convinced that this application is meritorious as the procedures in the dismissal of the applicant were flawed. As a result, the writ of certiorari is granted in favour of the applicant. The President's decision to terminate the applicant Page 21 of 21 from employment was erroneous and is hereby quashed as set aside. In the context of this application, I abstain from issuing the writ of mandamus at this juncture due to its premature nature. Under the circumstances, I make no order as to costs. It is so ordered. DATED at GEITA this 31st October 2024. G.V. MWAKAPEJE

JUDGE Right to appeal explained. G.V. MWAKAPEJE

JUDGE 31/10/2024