20141024 TZHC Iringa 1

. __ 5 FSl!l ! , . ., , W¥ t444Gk ·4 .. t ·/ IN THE HIGH COURT OF TANZANIA AT IRINGA MISCELLANEOUS CIVIL CAUSE NO. 4 OF 2012 OCTAVIAN KAITANI MBUNGANI EX.8648 ......... APPLICANT VERSUS 1. THE INSPECTOR GENERAL OF POLICE} .... RESPONDENTS 2. THE ATTORNEY GENERAL 07/05/2015 & 23/06/2015 RULING Kihwelo J. The applicant Octavian Kaitan Mbungani filed an application before this honourable court seeking among other things leave of the honourable court to file an application for orders for certiorari to quash the decision of the Inspector General of Police made on 16 th March, 2011 which dismissed the applicant from employment. The respondents who were under the services of Mr. Alex Mwita, learned State Attorney filed the counter affidavit along with the preliminary objection on point of law to the effect that; 1 i 1. The applicant's application is misconceived and bad in law for being premature. Upon the court's directives this preliminary objection was ·argued through Written submissions which were dully filed by the parties. The respondent's counsel argued that on 19th January, 2010 the applicant was charged with a disciplinary offence under Section 50 of the Police Force and Auxiliary Services Act, Cap 322 RE 2002. That the applicant is challenging the decision made by the Inspector General of Police who was exercising his powers following the appeal preferred by the applicant. The respondents co:1-nsel went ahead to submit that the Inspector General of Police confirmed the decision of the Regional Police Commander in which the applicant was appealing under Section 56(2) of Cap 322 RE 2002. It was the respondents' contention that the applicant was required to appeal to the Minister within seven days. The respondent challenged the applicant's reliance to Police Force Service Regulation of 1995 in that the decision of the Inspector General of Police was final. Besides the argument above the counsel for the respondents further submitted that the present application was brought more than two years from the date the complained decision was made hence it was hopelessly time barred. However, what is so unusual 2 ~--:i-----•- 1 . .5#11414.lllllUQIII] ,e...IIIIIC _ _.......,:. . . ■! -■ a■2•11111-....-.---·'""" . 41 --. about this ground is the manner upon which the respondents' counsel has sneaked in and introduced the objection into submissions without notice and leave of the court. To say the least this is very irregular. To act as the respondents did is akin to abusing the court process and introducing whatever one thinks about and at any time. With great respect to the counsel for the respondents in my view this should not be left to prevail. On his part the applicant while replying to the respondents' ~, counsel argued that the respondents have failed completely to distinguish between the Inspector General · of Police and the Commissioner. He strenuously submitted that the respondents have used the two titles interchangeably without appreciating the fact that the two . do not refer to one and the same position. To buttress further his point he referred this court to Section 2 of the Police Force and Auxiliary Service Act, Cap 322 RE 2002 which defines the two terms differently. The applicant valiantly argued that the contention by the respondents that the applicant ought to have appealed the Inspector General of Police's decision to the Minister within seven days is a serious misconception as that applies to decisions made by the Commissioner and not the Inspector General of Police. He reiterated further that Section 52(2) of Cap 322 RE 2002 deals with those whose decisions have been confirmed by the Commissioner or 3 I. ?¥£LE-==--__ r~ J ~~ ..... - ~,-.- ~. f ~ ,.....j" ., .. "'~!. -, a delegate of the Commissioner and not those punished under Section 50 of Cap 322 as is the case with the applicant. As regards to the application being time barred the applica_nt submitted that he filed an application before this honourable court on 14 th . July, 2011 which is three months from the date of the Inspector General of Police's· decisions hence the application was made within the time prescribed by law only that the same was initially struck out for citing the wrong provision of the law and • because the initial application which was struck_ out was filed 1n time the present application is not time barred. In order to dispose the preliminary objection two issues are very central to be answered. The first issue is whether or not the present application is time barred and the second -issue is whether or not the present application is premature. I will begin with the first issue and this is without prejudice to my earlier comment on the manner upon w_hich this issue was sneaked in through back doon, .. It is crystal clear from the court records that on 16 th March, 2011 the Inspector General of Police dismissed the applicant's appeal and on 27 th June, 2011 the applicant filed an application namely Miscellaneous Civil Application No. 6 of 2011 which was later struck out by my brother Honourable Kihio as it contained wrong provision of the law. The same was struck out on 2 nd October, 2012. Needless, to say all this was done within the prescribed period of six months. Subsequently 4 . J - __ _j on 15 th October, 2012 the instant application was filed afresh hence by virtue 01 Section 21 (2) of the Law of Limitation Act, Cap 89 RE 2002 the present application is not time barred. Section 21 (2) of Cap 89 RE 2002 reads; "In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting, with · due diligence, anoiher civil proceeding, whether in court of first instance or in a Court of Appeal, against the same party, for the same relief, • shall be excluded where such proceeding is prosecuted in good faith, in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." The provision of Section 21 (2) of the Law of Limitation Act in somewhat similar terms was considered by the court when a distinction was drawn between real delay and technical delay. This was in the case of Fortunatus Masha V William Shija & Another [1997] TLR 154 in which the court decisively held thus; "A distinction had to be drawn between cases involving real or actual delays and those such as the . , present one which clearly only involves technical delays in the sense that the original appeal was lodged in time but has been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling of the court striking out the first appeal ---." 5 l 1 ' ¥¥Pi ... .· •'*+ F#Hi,¥1@2!1Jiil4WAW**' zr 1 .N I am of the respectful opinion therefore that the contention by the respondents' counsel would have merit if the present application would have been filed for the first time on 15 th October, 2012 and not 27 th June, 20J 1 as the case in point. Turning to the second issue the facts on records are very clear. The applicant was dismissed by the Inspector General of Police by virtue of Section C 8(5) of the Police Force Service Regulations, 1995 • and the letter by the Inspector General of Police succintitly made it clear that the decision was final as it read at the last paragraph; "Mwisho unakumbushwa kwamba chini ya kifungu cha sheria tajwa hapo juu, uamuzi wa Inspekta Jenerali wa Palisi ni wa mwisho." I am inclined to agree with the contention by the. applicant that Commissioner and the Inspector General of Police in law does not mean one and the same person. The provision of Section 56 does not cover the Inspector General of Police but rather Commissioner as it reads; "Any member of the Force who has been punished by the Commissioner under Section 54 with dismissal or upon whom the punishment of dismissal has been con.firmed by the Commissioner under Section 54 aforesaid may, within seven days after the decision or confirmation of the Commissioner has been communicated to him, appeal to the Minister whose decision shall be final." 6 fi 1 It is evidently clear that the law did not in any way mean to refer to Inspector General of Police whenever the word Commissioner appears and if that was meant to be the case the legislature in its wisdom would have done so expressly. From the above analysis I can not interprete the law narrowly against the applicant as the counsel for the respondents sought to convince me in the guise of justice and turn out to be unjust or absurd: Hence I find that the decision of the Inspector General of Police was final as such the present application is not premature. .. . Consequently, I would disallow the preliminary objection with costs. 7 ,J. t WA Ruling delivered on 24 th October, 2014 in the presence of Mr. Ngoda holding brief for Mr. Kingwe for the Applicant and Mr. Edward Kenyuko for the Respondent. 10 ..•. :i