ERASTO LEMA 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM-SUB REGISTRY)

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 5098 OF 2024 P.12335LT ERASTO LEMA.............................................................. 1st APPLICANT MT.77624 Sgt. MUSSA SAIDI YUSUPH..... .................................... 2nd APPLICANT MT. 79237 SGT. MARTHIN JOSEPH MOMBO................................. 3rd APPLICANT MT. 79746 SGT. ALPHONCE MLEKWA............................................ 4th APPLICANT MT. 108806 PTE RAMADHANI BAKARI NAUMA............................. 5th APPLICANT

VERSUS THE ATTORNEY GENERAL........................................................... 1st RESPONDENT MINISTRY OF DEFENCE AND NATIONAL SERVICE ................... 2nd RESPONDENT

RULING S.M. MAGHIMBI, J: The application beforehand was lodged under the provisions of Section 93 and 95 of The Civil Procedure Code, [CAP.33, R, E,2019] and Section 14(1) of The Law of Limitation Act, [Cap. 89 R.E 2019]. The applicants are moving the court for the following orders: (a) That, this Court be pleased to extend time for the Applicants to file Judicial Review against the Respondents for terminating the i Applicants without procedure and reasons for such decision. (b) Costs for this application (c) Any other order this court may deem fit and just to grant. This application is supported by an affidavit of Wilson Magoti Kunyaranyara, learned Advocate for the Applicants. On their part, while filing their Counter affidavit, the respondent raised a preliminary objection on point of law that the Applicants have not exhausted internal remedies available before lodging this application in this honorable court. Disposal of the objection was by way of written submissions. The respondent's submissions were drawn and filed by Mr. Mwenda, learned State Attorney, while the respondent's submissions were drawn and filed by Mr. Magoti, learned Advocate. In his submission to support the substantive objection, Mr. Mwenda, submitted that it well settled principle of law that the specific law should be firstly invoked before general law is made to apply. He then pointed that

the Applicants herein were military soldiers employed by the 2nd Respondent. That their employment was governed by the National Defence Act [Cap. 192 R.E.2002] and the Defence Forces Regulations and Orders for Defence Forces, G.N. No. 52 of 1968 as amended from time to time (DF Regulations) herein referred as "specific laws". That Regulation 12 item 2 of the stated DF 2 k regulations deals with Grievances and Complaints. He then argued that item 12.26 of the Defence Force Regulations provides for redress of grievances and it has set a machinery system to be followed from the bottom up to the high level when a man or officer in military service feels that he has suffered any personal oppression, injustice or other ill-treatment. That the same has been done so under those regulations in order to get appropriate remedy for anything done in connection with employment of any party in the military service. Mr. Mwenda then submitted that going through the Affidavit of the Applicants and its attachments, applicants have failed to comply with the above stated requirement under DF Regulations, which is the specific law. That the applicants were supposed to refer the matter to the Minister of Defense who is the final authority in accordance with their rank. He then argued that the Applicants have not attached the Final decision from the Minister of Defense concerning the specific

grievance complained about. Therefore, he submitted, the absence of the Minister's Decision renders this Application to have been preferred in this court prematurely. That being the case, this court lacks jurisdiction to entertain the matter. Mr. Mwenda supported his argument by citing the case of Henry Mwisongo 3 Vs. Chief of Defence Force, the Permanent Secretary Ministry of Defence and Attorney General, Mise. Civil Application No. 28 of 2020, High Court [Reported in Tanzil] whereby Hon. Masoud, J (as he then was) at page 6 of the cited decision the Court stated that: "Nonetheless, with the existence of the decision of this court in Civil Case No. 46 of 2017 which concerned the same termination sought to be challenged by way of judicial review if extension of time is granted, I do not think that this court has in the circumstances jurisdiction to deaf with the same decision by way of judicial review". That in the end, the Court struck out the Application. It was his conclusion that based on the legal principles and the case law cited above, their prayer was for the court make a finding that the present application is prematurely filed in this Court by the Applicants before exhausting the remedies available under the National Defence Act and its Regulations, hence the Court lacks jurisdiction to entertain the Application. In reply, Mr. Magoti submitted that the applicants have

exhausted all local remedies including but not limited to Chief of the Armed Forces and the Minister for Defense and National Service but the outcome was in vain. He 4 referred to paragraph 25 and 27 of the affidavits of the applicants and its annexures whereby he elaborated that the applicants filed the matter to the Minister for Defence and National Service on 19th day of September,2022 at Dodoma and the same was dispatched thereto with one Monica the officer in charge within the office. That since 2022, the Minister has never replied to their grievances hence this application. He went on submitting that the Minister for Defence and National Service was supposed to respond or deliver judgment within 90 but since 2022 to 2024 he never responded or delivered such decision to the Applicants. That the only remedy to these applicants is to file extension of time to this court to challenge the act/omission of the Respondents to the Applicants. He went on submitting that the DF Regulations does not stipulate a time limit when the matter is referred to the Minister for Defence and National Service to deliver decision and give the room to the applicant to seek other legal remedy. Therefore, he argued, the applicants cannot be ignored by this court for the reason that the Minister for Defence and National Service did not deliver judgment and the said decision was not attached to this

application. That it was the duty of the Minister to deliver Judgment but without good cause she had neglected, refused/ignored to deliver the same hence this application. 5 Basing on his submissions, Mr. Magoti prayed for this Court to dismiss the preliminary objection raised by the respondents and proceed to determine the application for extension of time so that to challenge the omission of the Respondents in regards of the Applicants. That the Court has jurisdiction to determine the matter at hand as the preliminary objection does not fit as it self attracts evidence such as to attach judgment of the Minister for defence and National Service contrary to the principle laid down in the case of Mukisa Biscuits Manufacturing Company Ltd versus West End Distributors Ltd (1969) EA 696. Having heard the parties, the issue is whether the application beforehand was filed prematurely or there is actually a decision intended to be challenged. I have noted that Mr. Magoti did not dispute the fact that the applicant's redressal process has not reached the climax to confer jurisdiction to this court. In his submissions he admitted that the applicants have filed the matter before the Minister for Defence and National Service on 19th day of September,2022 at Dodoma and to date no decision has been rendered. This is conclusively, as argued by Mr. Mwenda, that there is actually no decision

to be challenged by way of Judicial Review should the application for extension of time be granted. However, in their Chamber Application, the Applicants have moved the court 6 for the following orders: (a) That, this Court be pleased to extend time for the Applicants to file Judicial Review against the Respondents for terminating the Applicants without procedure and reasons for such decision. From their own prayers it is obvious that should this application be granted, the applicants intend to file judicial review against the Respondents for terminating the Applicants without procedure and reasons for such decision. Therefore what is intended to be challenged is a decision which they alleged to have been made by the respondents without following the procedures or adducing reasons for the decision. The circle takes us back to the same question which is the basis of Mr. Mwenda's objection, was there any decision that was unprocedural made and without adducing reasons. Back to the applicants' own affidavit which is a statement of evidence, the applicants acknowledge that there is no decision issued by the 2nd respondent hence conclusively nothing to be challenged. Therefore, on those findings, I posed and asked myself as to how this court will have jurisdiction to review the decision of the 2nd respondent while the said decision is yet to be made? The answer is impossible. Since

it is admitted that the final decision in the decision-making hierarchy of the 2nd 7 respondent has not been issued according to the specific laws, then this court has no jurisdiction to entertain the matter in which the available redressal has not been fully exhausted. That being the case, the objection is hereby sustained and consequently, this application is hereby struck out. Taking into consideration the source of the dispute before me, each party to bear its own costs. Dated at Dar-es-salaam this 13th day of November, 2024

MAGHIMBI

JUDGE 8