muhiddin h muhiddin and another vs muslim university of morogoro 2021 tzhc 9046 15 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO MISC. CIVIL APPLICATION NO.5 OF 2021 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR PREROGATIVE ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF THE DECISION BY MUSLIM UNIVERSITY OF MOROGORO ENTERED ON THE AND 6™ AUGUST,2021 BETWEEN 1. MUHIDDIN H. MUHIDDIN 1^ APPLICANT 2. ABDULRAHMAN 1. MPENDAKAYA 2'*° APPLICANT AND MUSLIM UNIVERSITY OF MOROGORO RESPONDENT Last Order: 06/12/2021 Date of Ruling: 15/12/2021 RULING CHABA,J: The applicants Muhiddln H. Mudiddin and Abdulrahman J. Mpendakaya have filed in this court an appiication for ieave to appiy for prerogative orders of Certiorari and Mandamus against the respondent, Musiim University of Morogoro. The appiication is made under section 17 (2) of the Law Reform (Fatal Accident and Misceiianeous Provisions) Act [Cap. 310 R.E. 2019](the Law Reform) coupied with the certificate of urgency Page 1 of 10 made under section 2(3) of the Judicature and Appiication of the Laws Act [Cap. 358 R.E. 2019] (the JALA) and Ruies 4 and 5 (1) and (2) of the Law Reform (Fatai Accidents and Misceiianeous Provisions) (Judidai Review Procedure and Fees) Ruies, 2014 (the Rules). The orders sought are: a. An order granting leave to the applicants to apply for prerogative orders of certiorari to call into the court and quash the decision of the respondent to discontinue the applicants from studies and of mandamus, to compel the respondent to among others, reinstate the applicants into studies. b. Correctly release the applicants' examination results in respect of ail semesters they attended. c. And any other order court thinks fit to grant. The preferred chamber summons is supported by both joint statement and joint affidavit of the applicants. At this stage, the respondent did not seek to resist the appiication, perhaps for one reason that the same was preferred ex-parte and lodged under certificate of urgency. The genesis of the matter can be briefly deduced from the joint affidavit filed by the applicants to the effect that, they were admitted to pursue their Bachelor of Laws and Sharia at the Muslim University of Morogoro (MUM) and registered as MUM2019-04-04715 and MUM2019- 04-03950, respectively. While in the second year of study, the applicants were discontinued from their studies upon being charged with an offence of committing a misdemeanour termed as examination irregularity during the LAND LAW II (Code 2203) examination sessions Page 2 of 10 on allegation that the two were talking to each other contrary to the Students' Code nf Cnriduct and General University Exeminatinn Regulatinns of 2PID (The Reguiatinns). The applicants averred that when they were sharing statutes in the examination room, the internal invigilator confronted them and further ordered them to stop writing their examinations. Afterwards, they were asked to state in writing what has transpired between themselves. They obeyed and compiled with the order, but alas she declined to accept their letters while ordering them to write the other version of letters confessing that they were talking to each other during the examination. To comply with the invigilator's directives, the applicants wrote the said letters, but under huge pressure, as asserted by the applicants. Afterward were allowed to continue doing their examinations till the end. He contended further that on the same day, the applicants were presented before the Examination Committee for hearing. According to them, the Committee was improperly constituted because the hearing was ensued in absence of the internal invigilator or any other witnesses. Upon deliberations, the Examination Committee resolved that the 2"'' applicant and the 1^ applicant have to be discontinued from their studies on the 03"" and 06''^ August, 2021 respectively. The letters bearing the respective dates were issued as an official notification to the applicants. Discontented with the decision reached by the University's Examination Committee, they preferred an appeal before the Senate, but their trial was knocked out by the Senate upon sustaining the decision reached by the Examination Committee. Stiii displeased, they Page 3 of 10 preferred the instant avenue as they believe that such decisions were made without considering the principles of natural justice. They further stated that the decision was unfair and tantamount to full of illegality and irregularities. During hearing, Mr. Hassan S. Nchimbi, learned counsel appeared for the applicants, whereas Mr. Jadidi Adam Suleiman, learned counsel, entered appearance for the respondent. Submitting in support of the application preferred Mr. Nchimbi underlined that the applicants were expelled from their studies on the grounds of cheating as it was alleged by the respondent through exhibit AMI, but without adherence to the principles of natural justice. He highlighted that the respondent's decisions were marred by procedural impropriety, illegality and irrationality. Regarding the point of procedural impropriety, the learned counsel argued that the applicants were not accorded the opportunity to be heard inter-parties. As to the second issue of iiiegality, he stated that the applicants were convicted and finally expelled on the repealed law, commonly known as Students' Code nf Cnnduct and General University Examinatinn Regulatinns of 2DID whereas such Regulations were revised in the year, 2018 and named as "Cade nf Conduct and the General University Examination Regulatinns University of Morognro, ZUIS". Moreover, Mr. Hassan articulated that the respondent violated section 9.3 of the Regulation of 2010 which requires the Deputy Vice Counsellor - Academic (the DVC Academic) to call the Examination Committee to discuss the incident of examination irregularity in the Page 4 of 10 presence of the accused persons, herein the applicants. However, the DVC - Academic did not call such a committee, and instead the applicants were invited to appear before the committee which is unknown, and the DVC - Academic did not attend the meeting. Moreover, the respondent violated section 2.7 of the same Regulation, 2010. This section requires the invigilator to call another invigilator who could act as a witness or call any other staff members to witness the incident. Since the procedure was not adhered to, the invigilator directed each of the applicants to write a letter and explain what happened on the material date. Mr. Nchimbi argued further that the respondent violated section 2.11 which requires the invigilator to write a report on the incident and submit to the DVC - Academic and confiscate ail the materials associated with cheating. Since the Statutes that were alleged to be the source of the incident of cheating was not confiscated till to date and the respective report has never prepared and submitted to the DVC - Academic for further steps, such an act purely demonstrates how the respondent violated section 2.11. He added that that section 2.12 which requires the DVC - Academic to convene a meeting with the Examination Committee to discuss the incident in the presence of the students accused, the key witnesses and the invigilator were not called. With regards to the last point of irrationality, Mr. Nchimbi contended that basing on the first and second points discussed above, the decisions reached by the respondent were not reasonable and logical due to the irregularities including failure to summon the invigilator to appear before the Examination Committee. Page 5 of 10 It is on those grounds; the applicants prayed this court to grant the orders sought. After going through the joint affidavit and the joint statement filed by the applicants and the submissions advanced by the learned counsel for the applicants, the following are the deliberations of this court with regard to the relief sought. At the outset, I would like to point out that this application is not resisted by the respondent. Therefore, the matter being an application for leave to apply for prerogative orders of Certiorari and Mandamus against the respondent, I think in my view that, the major issue for determination is whether the applicants have successfully made out an arguable case for leave to be granted. An arguable case by interpretation is based on the spirit of rule 4 of the Rules which states that; "A person whose interests have been or believes will be adversely affected by any act or omission, proceeding or matter, may apply for judicial review." Under rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, the law insists that such an application for Judicial Review must be preceded by application for leave, it provides: "5 (1) An application for judicial review shall not be made unless a leave to file such application has been granted by the court in accordance with these Rules." Page 6 of 10 I have in mind that the legal rationale behind the leave prerequisite in Judicial Review is to filter serious and significant cases from those trivial and insignificant ones. The ultimate result is that court's time should be served from misuse and valid decisions by administrative bodies should not be distressed by dispute instigators unnecessarily. That is why in various cases, this court has kept reminding itself on the personality of Judicial Review. In the recent case of Goodluck Mandes v. The University of Dodoma and Four Others, Miscellaneous Cause No. 3 of 2021, HCT at Dsm (Unreported), the Court had the following observation: "...the purpose behind application for leave proceedings is to prevent the time of the court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which Public Authorities might be left. For example, shoddy applications filed against High Learning Institutions like the one before the court, may be that instituted by unregistered or unexamined student or that, though competent, is filed in a wrong registry/forum." For that purpose, there are important factors established as guidelines which the court is required to take into consideration in determining the matter of this nature. Among others, the applicants must show that they have an arguable case (ground for judicial review), they have any interest affected or such interest is about to be affected (locus standi), there is no other remedy to relieve their complaint; if there is any other remedy, the applicants should state why it was not used. Lastly, the application must have been made promptly without delay. In this regard, the The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap. 310 R.E. 2019) predicates under section 19 (2) Page 7 of 10 what the Rules should provide for and the Rules prescribe the period of six months' time limit. This one was made very explicit from the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. It provides: "The leave to apply for judicial review shall not be granted unless the application for leave is made within six months after the date of the proceedings, act or omission to which the application for leave relates." The above provision of the law was well discussed in the cases of Cheavo Juma Mshana v. Board of Trustees of TANAPA, Miscellaneous Civil Cause No. 7 OF 2020, HCT at Moshi (Unreported), Mandes (supra) and Ally Linus and 11 Others v. THA and Another[1998]TLR. 5. As gleaned from both joint affidavit and the joint statement, the applicants were admitted and registered as students to pursue their Bachelor of Laws and Sharia at the respondent's University (MUM). As indicated in para 2 and 8 of the joint affidavit, the applicants were discontinued from their studies on the ground of committing misconduct during examination sessions. However, their efforts to exhaust their rights to appeal to the Senate ended in vain when they received letters from the Chairman to the Senate who stated that he blessed and approved the decision reached by the Examination Committee. His decision was exhibited in Annexture AM2 and para 10 of the joint affidavit. In the view, the applicants had no other option, other than lodging instant application before this court as their last resort. Page 8 of 10 From the foregoing, I am of the view that the appiicants have exhibited some interest from the decision of the respondent and the two were affected in one way or another. Furthermore, this appiication has been fiied within the time prescribed by iaw which is six months after the date of proceedings as can be seen in Annexture AMI which states that the 2"'' appiicant discontinued on 03'^'' while the I®' applicant was expelled from his studies and discontinued on 06^ August 2021. The question that remains is therefore, whether the appiicants have established an arguable case. As indicated above, the appiicants have shown sufficient cause to the effect that there is an arguable case. Since an arguable case is understood by its demanding character, that the claimant must supply a plausible evidential basis for the appiication of a relevant jurisdictional gateway, in the circumstance of this case, I am satisfied in my mind that the appiicants have demonstrated plausibility test on the material available. I thus hold that there is a substantive question for the court to determine the issues raised at this stage which are connected to the acts or omissions alleged by the appiicants. I have further considered the applicants' complaints that the respondent acted without considering the principle of natural justice and affording the appiicants with the right to be heard. I have further paid attention on submissions advanced by the learned counsel for the appiicants which in indeed I subscribe. In the final event, I am satisfied that this appiication has merit. I thus hereby grant the appiicants leave to apply for orders of Certiorari and Mandamus as prayed. Since the matter was fiied under certificate of urgency, the costs shall be borne by the appiicants. Page 9 of 10 It is so ordered. DATED at MOROGORO this 15"" day of December, 2021, M. J. CHABA JUDGE 15.12.2021 Court: Judgment delivered under my hand and Seal of the Court in Chamber's this day of November, 2021 in the presence of the applicants and Mr. Hassan S. Nchimbi, learned Advocate, and Mr. Jadidi Adam Suleiman, learned counsel for the respondent. M. J. CHABA JUDGE 15/12/2021 Right of the parties fully explained. M. J. ABA o y JUDGE N 15/12/2021 Page 10 of 10