20150619 TZHC Iringa 1

.. j\ IN THE HIGH COURT OF TANZA!\JIA AT IRINGA MISC. CIVIL CAUSE NO.- 3 OF ·. 2012 .,, (IN THE MATTERS OF AN APPLICATION--FOR ORDERS OF - CERTIORARI AND MANDAMUS ONOLINA LAURENT MW.ANO EX WP 1904 SGT ................... :.; ..'.......... APPLICANT VERSUS l:. THE INSPECTOR GENERAL OF POLICE .... -. RESPONDENTS ''"2. r!ONOURABLE ATTORNEY GENERAL 16/4/2015 & 19/6/2015 RULING MADAM SHANGALI, J. The applicant Onolina Lurent Mwano Ex WP 1904 SGT has filed this application before this court seeking for leave to apply for orders of Certiorari and mandamus against the Inspector General of Police (IGP) as the first respondent and 1 _..., ,-._· ...., ·"' -,.,. .. ·, ~ ,,_ "1 ·;.·· .": • -• ; • '.' ,,,;.. . •'/ 1.I· • • .; • ~ ":,-" ; , ~.\ ~ I ,. ,,., # . I, \ .. ' t - . - -- -· --·- ... the Hon. Attorney General as the second respondent to ; challenge the decision of her dismissal from the Po:lice Force emanating from the original decisio.n of Iringa Regional Police Commander. - The application has been filed under Section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap.· 310 ~.E. 2002 (h.e,:ei[J_after referr_ed to as···"-Law Reform Act) and duly supported by the affidavit .. • deponed by the applicant in perso_n. • . :puring the filing' _of the pleadings Ms. Blandina Manyanda, the learned State Attorney appeared _for both respondents and filed a prel_iminary objection on the point of law namely, .the ·application is timely barred.· On_ 17th February, 2015 the parties were allowed to argue the point of preliminary objection by w~y of written submissions. In the ..conduct of this application the applicant was represented by Mr. Musa Mhagama, learned advocate while the respondents were represented by Mr. Mgavilenzi and Mr. A. M. Sanga lea~ned State Attorneys. There is no dispute that the applicant was working at Makambako Police Station as a Police Officer holding a rank of Seargent of-Police attached to Traffic Police. . That on 19th -· .- 2 · January, 2010 the appiica_nt was arrested and charged with· dispiinary offences under Section 50 of the _ Police Force and Auxiliary - Service Act, Cap. 322 R. E. 2002 (hereinafter C referred to as The Police Force Act) before the court martial. · At the-·e~d of trial the applicant ·was convicted and sentenced to a dismissal or transfer·-- to another Police Station. According to the procedure, that decision was subject to the approval by the· Iring a Regional Police ~ . . Commander; The .. . : same was duly approved -, and the applicant was dismissed with disgrace .., Dissatisfied.- with that decision the· applicant filed an - appeal to the Inspector General of Police who in the exercise of his powers dismissed the appeal under Section 56 (2) of the Police Force Act and Rule C 18 (3) of the Police Force Service Regulation 1995. That was on 16th March, 2011. In ·his written subr:nission Mr. Sanga argued that the .. application for leave was filed after 19 months from the date of the decision of the Inspector General of Police contrary to the requirement of Section 19 (3) of the Law Reform Act, which is coached in mandatory terms that application for such leave must be made within a period of six mqnths from the date of the decision. He argued that since th~ application was filed 13 months out of time the court have no . jurisdictio'll to entertain it .. 3 • •••:•I- • ~ .. ...- , ,., . . ! The learned ·stat·e Attorney \i\fent further and .submltte9 that inspite of the application being time barred, the same is.... also misconceived and bad in law for being filed in court· before ~xosting the available legal rem~cfies, to wit an . ,· appeal to -·th-~ Minist~r under Section 54 · (2) of the Police Force Act. He contended that in an application for orders of certiorari · and mandamus under Section 17 of the Law· Reform Act, it ·is the .de.cision of the Minister which is subject ' to Jhe -...... - -court's intervention because it is final and conclusive. Mr~ ·sanga submitted to the effe<;t that the decision of the · Inspector General of Police was not final and conclusive because the applicant had another chance and · right to appeal to tbe Minister of which she opted to waive. He cited the case. of ·sonai Murumbe and another Vs. Muhane Chacha (1990) TLR 54. In response to the point of preliminary objection Mr. Mhagama submitted _that the applicant filed his first application seeking for the same remedies within the prescribed period as per Section 19 (3) of the Law Reform Act. That unfortunately the first application was struck out by the court with liberty to re-institute it. As. a result the applicant filed ~this present application. In his submission Mr. Mhagama conceded that the decision of Inspector General of Police was. made-. . on 16th March, 2011 and the 4 . 1 5 ~j firs~ appLication was filed on 1 ~ Juiyr 2011 while the present a1:fplication was filed on 10 th October, 2012~ NonetheJess the · learned advocate relied on Section 21 (2) of the Law of . Limitation Act, Cap. 89 wh•ich provides for the manner of· computing·- period of limitation which to my knowredge is inapplicable. On the issue of the application being filed· prematurely Mr. Mhagama complain'ed that the issue was not raised in the notice of preliminary· objection;-. however, he proceeded to-respond_· to the effect that .the ..applicant was charged and dismissed ·under Section 8 (5) of the Police Force Service Regulation ,,. 1995 and the conviction and sentence upheld by the Inspector General of Police. He contended that the . application was not dismissed under Section 54 of the Police Force Act and therefore there is no chance of an appeal to the Minister under Section 56 (2) of the Police Force Act. He prayed the court to dispense justice without being tied· up with undue technicalities aimed to obstruct dispensation of justice. Having considered the submission made by both sides I have no hesitation to side with the respondents' counsel. The present application was filed out of the prescribed time of six .. months as provided u.nd'er Section 19 (3) of the Law 5 - ..1./' - ~ ·. :· ~ .f .......~~ -::, ,.:., >• •~- _•• : .. .:.: ... /,; Refor.m ,Act. Mr. Mhagama: conceded to that fact but defend himself with the argument that their similar first appHcation which was filed. within time was· struck out by the court :.: 'hence the . ·present ~ppli<;ation. That me-ans the present application was filed out . of time because their first similar application was thrown· away by the court and no extension . . of time was sought and obtained. In my considered opinion that situation required the applicant. to file _an applic_ation ... . for ' . extension of time within which t9 file his application and .. aavan_ce _therein her Sl:Jfficient reas011s for delay. Section 21 . -~ •• • ·- . f .-·(2) o( the Law of Limitation Act, Cap. 89 provide --for computation -Of the period of limitation prescribed by the law and not extension of time: where the applicant is late. ·On - the second point, I sincerely agree with Mr. Mhagama that the point was raised contrary to the procedure because it was not included in the points of preliminary objection. However, ·since the point raised touches the fundamental issue of jurisdiction of this court, I feel bound to entertain it. It is a principle of law that in order for orders of certiorari and mandamus to be issued several r conditions must _be satisfied. One of the condition is that there should be no further right of appeal op~n to the applica.nt and 6 . , ;. decisi'on must be f_inal and conclusive as stated. 'in the cases of Sonai ·. Murumbe and ano,ther (supra). and Alfred Lakaru Vs. Town Director Arusha ( 1980) TLR. In tlhe present case the -applicant had. another. chance of appeal to the Minister for Home Affairs under Sections 54 and 56 (2) of the Police Force Act~ In conclusion, the. raised point of preliminary objection .. which is enough to dispose off thi§i application is hereby upheld.· Alscf the additional. point· that the application is.· : ~·isconceived and. bad in la-w for being premature is equally uphe~d. The application is hereby dismissed. No order for costs. M. S. SHANGALI JUDGE 19/6/2015 Ruling delivered today in the presence of Mr. Mhagama, learned advocate for the applicant and Ms. Happiness Flavian, learned State Attorney for the respondent/Reput;,lic. M. S. SHANGALI JUDGE 19/6/2015 7 .• , '