RULING PROTUS JOSEPH MUSHI VS CHIEF SECRETARY AND OTHERS JUDICIAL REVIEW FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 8436 OF 2024 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW TO CHALLENGE THE DECISION OF THE PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA IN HER APPELLATE AUTHORITY FOR CONFIRMING THE DECISION OF PUBLIC SERVICE COMMISSION WHICH CONFIRMED THE DECISION OF TANZANIA PORTS AUTHORITY WHICH DISMISSED THE APPLICANT FROM EMPLOYMENT BETWEEN PROTUS JOSEPH MUSHI……………………………….……. APPLICANT AND THE CHIEF SECRETARY ……………………….……..…1ST RESPONDENT PUBLIC SERVICE COMMISSION……...…………...…2ND RESPONDENT TANZANIA PORTS AUTHORITY ……………..…….….3RD RESPONDENT THE ATTORNEY GENERAL……………………..........…4TH RESPONDENT 1 RULING 14/8/2024 & 4/9/2024 KAGOMBA, J The applicant herein seeks judicial review of the decision to dismiss him from his employment with Tanzania Ports Authority (TPA), the 3rd respondent, on account of forgery aimed at upgrading his academic qualifications. Being aggrieved, and having appealed to the Public Service Commission, the 2nd respondent herein, and the President of United Republic of Tanzania (Henceforth the “President”) without success, he craves the following orders: (a) Certiorari to quash and set aside the decisions of the 1st, 2nd, and 3rd respondents herein; (b) Mandamus to compel the 3rd respondent (Employer) to reinstate him in his employment without loss of entitlements. (c) Any other order(s) this Court may be pleased to grant. The application, which is preferred under the provisions of section 2(1) and (3) of the Judicature and Application of Laws Act, [Cap. 358 R.E 2019]; Sections 17(2), 18(1) and 19(2) &(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap. 310 R.E 2019] and Rule 8(1)(a) (b) and 8(2) & (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) 2 (Judicial Review Procedure and Fees) Rules, 2014, is supported by the Affidavit of the applicant, and the Statement in respect of which leave was granted. In opposition, the respondents filed their joint counter affidavit sworn by one Emmanuel Kuchaka Komba as well as a reply to the applicant’s Statement. In essence, they deny all the above grounds. In the joint counter affidavit, the respondents averred that on the course of his employment as Mooring Hand, the applicant submitted to the 3rd respondent a Form Four Certificate certifying him that he has attained that level of education from Kibasila Secondary School with Index No. S0316/0066 of 1998, a certificate which upon inquiry done by the National Examination Council of Tanzania (NECTA) was found to be a forgery. In responding to some key claims raised in the applicant’s affidavit, the respondents averred that there is no requirement for the employer to supply a copy of the inquiry report to the employee, adding that the 3rd respondent duly issued the applicant with a due notice of fourteen days accompanied by a charge for his essential preparations. Significantly, the respondents denied the contents of paragraphs 11 (a), (b), (c), (d), (e) and (f) of the applicant’s Affidavit under which the application is mainly founded. In short, they find no fault in the 3rd respondent’s impugned decision. 3 Upon an unopposed prayer by the applicant, the Court ordered the hearing to proceed by way of written submissions. The applicant drew and filed his written submission in chief while Ms. Lilian Mirumbe, learned State Attorney, drew and filed the reply submission for the respondents. The factual setting of this matter, as it can be gleaned from the pleadings, is to the effect that on 13th February 2009, the applicant successfully applied to the 3rd respondent for a job as an office attendant, indicting his level of education as a standard seven leaver. He was granted employment in that position on three months circles. It transpired afterwards that the 3rd respondent, granted the applicant a new job of Mooring Hand for a contract of unspecified period of time. However, on 29th June, 2018 the 3rd respondent suspended the applicant from employment on the aforesaid forgery allegation and later charged him through Disciplinary Committee which found him guilty and eventually on 15th September, 2018 he was dismissed from employment. In his written submission, the applicant states his main ground for preferring this application as violation of his constitutional right to be heard or a right to a fair hearing. He refers the Court to paragraph 11 of his own affidavit whereby he elaborated his grievances, as follows: “11. That the way the proceedings progressed in the Disciplinary Committee under my Employer (3rd 4 Respondent), it violated the laws and the principles of natural justice as follow: - a) I was not supplied with Investigation Report (denial of access to vital documents), denying my right of fair hearing thereof. b) The Disciplinary Committee was not impartial for having some members from the Employer (3rd Respondent). c) I was issued less than 7 days’ notice to appear for disciplinary hearing at my detriment (inadequate notice for disciplinary proceedings). d) I was not accorded the right to enter mitigating factors and signing of Inquiry Form, e) I was not provided with copies of notes/minutes taken at the Disciplinary Committee hearing and I was not given an opportunity to comment. f) The Employer (3rd Respondent) issued a dismissal decision against me arbitrarily”. On non-supply of the Investigation Report, the applicant firstly cited regulation 36 of the Public Service Regulations GN No. 168 of 2003 (Henceforth “GN No. 168 of 2003”) for a contention that it was a mandatory requirement then, as it is now, for a disciplinary authority to conduct a preliminary investigation before instituting disciplinary proceedings. 5 Secondly, he cited the provision of clause 8.8 of the Public Service Disciplinary Code of Good Practice GN No. 53 of 2007 (Henceforth “Code of Good Practice”) for another mandatory requirement that each party must make available, in advance, any documents it intended to rely upon in the course of disciplinary hearing, for which a notice of seven days must also be given before hearing. In furtherance of his contention, the applicant cited the provision of regulation 47(4)(b) of GN No. 168 of 2003 which is pari materia with regulation 47(9)(b) of the reigning Public Service Regulations, GN No. 444 of 2022 regarding the need to supply the Investigation Report to the accused public servant or his representative. According to the applicant, since his dismissal from employment was based on the said Investigation Report, it was crucial for him to be availed with a copy of the same for adequate preparation of his defence, and for fair hearing. He cited the decision of the Court of Appeal in Enza Zadeni Africa Limited vs Edwin Kasena, Civil Appeal No. 427 of 2021 to spice this contention. He also cited other decisions of the Court of Appeal in Severo Mutegeki and Another vs Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA), Civil Appeal No. 343 of 2019 (unreported) and Kiboberry Limited vs John Van Der Voort, Civil Appeal No. 248 of 2021 (Unreported) on the same line of argument. Based on these 6 authorities, the applicant concluded that sharing a copy of Investigation Report with an accused public servant is mandatory. Noting that the employer might not have conducted any inquiry but relied upon the Report of NECTA, the applicant found it equally irregular that he was not availed with a copy of the said NECTA Report before commencement of the disciplinary hearing. Basing on the case of Enza Zadeni (Supra), he contended that such a failure rendered the dismissal procedurally unfair. As regards the Disciplinary Committee lacking impartiality, the applicant cited the provision of clause 8.5 of the Code of Good Practice, which requires the Disciplinary authority to appoint chairman, secretary and members of the committee from outside the organization to ensure impartiality, transparency and fair decision. According to him, this requirement was also not observed by the 3rd respondent. In the same vein, he cited the provision of clause 17.0(r) of the Code of Good Practice to argue that the disciplinary authority or employer is prohibited to be a member of the disciplinary committee to avoid breach of principles of natural justice and fairness. According to him, this prohibition was also breached by the 3rd respondent, hence lack of impartiality, transparency and fairness in the impugned decision. 7 As regards the shortness of notice that procured his appearance before the disciplinary committee, the applicant submitted that he was availed less than the statutory seven (7) days’ notice provided under clause 8. 8 of the Code of Good Practice. He argued that the said notice (annexure PJM-5 to the affidavit) despite being dated 25th July, 2028, it was served upon him on 30th July, 2018 requiring him to appear before the disciplinary committee on 03rd August, 2018 being less than seven days. The contention here is that where a decision is reached in violation of the right to a fair hearing, such a decision is rendered a nullity and cannot stand even if the same decision would have been reached had he been fairly heard. He cited the decision of the Court of Appeal in Haji Rashid Matundu and Another vs Republic, Criminal Appeal No. 314 of 2021 on the need to give accused persons reasonable time. To the applicant’s mind, the 3rd respondent violated the provision of Article 13(6) of the Constitution of the United Republic of Tanzania, 1977 [Cap 2 R.E 2019] (Henceforth the “Constitution”) regarding the right to a fair hearing and views the decision arising therefrom a nullity. As regards the right to enter mitigation and signing of inquiry form, the applicant laments that he was denied that right in violation of the provision of clause 8.4 of the Code of Good Practice, which makes the said right a mandatory requirement prior to any disciplinary decision is taken. He 8 cited clause 16.10 of the Code of Good Practice for the types of mitigating and aggravating factors which need to be considered. In the same vein, regulation 48(2)(b) of GN No. 168 of 2003 which is pari materia with the reigning regulation 48(2)(b) of GN No. 444 of 2022 was cited as requiring the committee to record aggravating and mitigating factors. In addition, the applicant condemns the failure of the 3rd respondent to fill in the inquiry form, Appendix B to the Code of Good Practice. He cites clause 25.3.2 of the said Code for a contention that when the said form is not filled in, the appellate authority is mandated to consider the decision reached without observing such a procedure unfair. Non provision of a copy of the minutes of the disciplinary proceedings and denial of the applicant of an opportunity to comment on the same was raised as another ground to challenge the impugned decision. The applicant relied upon clauses 19.1(b) and 25.3.3 (c) of the Code of Good Practice to argue this ground. He submitted that the said requirements were not observed by his employer, to the applicant’s detriment. Another ground raised by the applicant is that the decision of the 2nd respondent, being an appellate authority, created a new disciplinary charge against him by stating to the effect that the applicant’s employment was done in contravention of paragraph 5.11 of the Public Service Management 9 and Employment Policy, 1999 read together with regulation 17(5) of the Public Service Regulations, 2003 and Establishment Circular No. 1 of 2004. He argues that that decision introduced a completely new charge, condemned him unheard and punished him for the mistake of his employer in contravention of Article 13(6) of the Constitution. The decision of the Court of Appeal in Kumbwandumi Ndemfoo Ndossi vs Mtei Bus Service Limited, Civil Appeal No. 257 of 2018 (Unreported) was cited for the principle that cases must be decided on the issues or grounds on record and not on new issues. It was the applicant’s further contention that if there were any breach of policy or regulations in the course of his employment, such mistakes should have been credited to his employer and not him. The decisions of the Court of Appeal in Power Roads Tanzania Limited vs Bank of Africa Tanzania Limited, Civil Appeal No. 429 of 2020 (Unreported) and Nassoro Abubakar Khamis and Azam Marine Services vs Wakf and Trust Commission Zanzibar and Alliance Insurance Corp Limited, Civil Appeal No. 245 of 2020 (Unreported) were cited in this regard. He wound up by praying the Court to award appropriate remedies listed in the chamber application taking into account that he was wrongly dismissed from employment since 2018. 10 In their reply, the respondents through their learned State Attorney strongly objected to the prayers made by the applicant. They maintain that the dismissal decision was executed fairly and justice was rendered. According to the counsel for the respondents the rationale and the essence of Judicial Review is to ensure that, the statutory powers are not usurped, exceeded, or abused and that procedural and substantive rules are complied with. Citing the decision of Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 as well as the decision of the Court of Appeal of Tanzania in the case of Sanai Murumbe and Another vs Muhere Chacha [1990] TLR 54 (CA), they recalled the three major grounds for judicial review is to deal with illegality, irrationality and procedural impropriety in decisions of inferior tribunals or administrative bodies. The respondents acknowledged further that the High Court is entitled to investigate the proceedings of the lower court or tribunal or public authority on any of the following grounds, apparent on the record; that the subordinate court or tribunal or public authority had taken into account matters which it ought not to have taken into account; the court or tribunal or public authority has not taken into account matters which it ought to have taken into account; where there is lack or excess of jurisdiction by the lower court; where the conclusion arrived at is so unreasonable that no 11 reasonable authority could ever come to it; where rules of natural justice have been violated and where there is illegality of procedure or decision. Having set the above tone, the learned Attorney asserted that the disciplinary proceedings were carried out in a judicial manner and the applicant was given all rights to present his claim. She urged the court to be vigilant to entertain only arguments rooted in the pleadings as per James Funke Gwagilo vs Attorney General [2004] TLR 161 and Barclays Bank (T) vs Jacob Muro, Civil Appeal No. 357 of 2018 (both unreported). The apparent contention by the learned State Attorney is that looking at the grounds relied upon by the applicant to allege denial of fair hearing and arbitrarily acts of the 3rd respondent as stated in paragraph 11(a), (b), (c) and (e) of the affidavit, there is nothing in the pleadings to suggest that the 3rd respondent breached the provision of Article 13(6) of the Constitution. The learned Attorney further asserted that the applicant was supplied with the Investigation Report. Controversially, she added that if at all the applicant was to be given the benefit of doubt, probably on his assertion that he was not supplied with a copy of the report, there was no proof that he made a formal application to be supplied with the said report. According to the learned State Attorney, the onus of proof lies on the applicant who raised the allegation that the procedure was not followed by the respondents. 12 As to whether the 3rd respondent conducted the mandatory preliminary investigation before instituting the disciplinary proceedings, in terms of regulation 36 of GN No. 168 of 2003 and Clause 8.8 of the Code of Good Practice, the respondents’ reply is in the affirmative. They emphasize that the investigation was done and it is through its preliminary documents the applicant was able to engage his Advocate who helped him file his defence. On the shortness of notice, the Attorney’s reply is simply that the applicant’s claim was misplaced. Referring to annexure PJM-4 and PJM-5 to the applicant’s affidavit, the learned State Attorney argued that the applicant was served with all necessary documents including the notice, for period of more than the 7 days as per Regulation 44(3)(4) and (5) of the Public Service Regulations, GN No.444 of 2022. Responding to grounds number 4, 5 and 6 of the applicant’s claim, the learned Attorney directed her mind to the applicant’s allegation that the 2nd respondent created a new charge altogether. In her reply, she reiterated the school certificate forgery allegedly committed by the applicant arguing that his employment as well as confirmation without having minimum qualification were void ab initio. Citing the decision of the Court of Appeal in National Development Corporation Vs Equador Limited, Civil Appeal No. 136 of 2017 13 (Unreported) the learned State Attorney passionately called upon this Court not to let the applicant benefit from his own wrong doing, asserting that one who seeks equity before the Court of law must come with the clean hands. Referring to regulation 60(4) of the Public Service Regulations, GN No.444 of 2022, the learned Attorney finds no illegality in the decision of the 1st respondent to warrant invocation of judicial review. In her views, since the law provides for appeals to the President, who exercised her mandate accordingly, there is nothing on record to impeach her appellate decision. As regards the observance of Article 13(6) of the Constitution on fair hearing, it was argued for the respondents that regulation 62 provides an opportunity for disputing parties to be heard by submitting their claims in writing, a right which the applicant was also availed with vide the letter bearing reference number CAB.30/536/PF.1106/3. For this reason, the learned Attorney finds the decision of the President communicated to the applicant by the 1st respondent on 20th September,2023 very lawful. As for the cases cited by the applicant to support his contentions, the learned State Attorney finds the case of Haji Rashi Matundu distinguishable on ground that it dealt with an appeal and not application for judicial review. As for the cases of Enza Zadeni and Severo Mutegeki, they were distinguished for being concerned with supply of Investigation 14 Report, while in the instant matter the applicant was already supplied with the said Report before commencement of disciplinary hearing. The learned Attorney wound up her reply submission praying for the application before the Court be struck out with costs for being misconceived and for failure to meet the conditions set by the Court of Appeal in granting judicial review remedies. There was no rejoinder. Now, looking at the pleadings, the submissions made by the learned counsel for both sides, and the law governing applications for judicial review, the following two issues are up for determination: One; whether the disciplinary proceedings which led to dismissal of the applicant from his employment with the 3rd respondent violated the law and the principles of natural justice as alleged, and; Two; whether this application merits the exercise of court’s discretion for orders of certiorari and mandamus to issue. To determine the first issue, I find it imperative to start with a clarification as to what this Court does in judicial reviews. In doing so, I am aided by a quotation from B.D. Chipeta, Administrative Law in Tanzania (A Digest of Cases) Mkuki na Nyota, Redesigned New Edition, Dar es Salaam, 2008, at page 121 where the learned Author has this to say when differentiating applications for judicial review from appeals: 15 “In applications for prerogative orders, the court investigates the legality of an action or decision of an inferior tribunal or authority but in an appeal the court considers the merits of the action or decision”. [Emphasis added] The importance of underscoring the objective of judicial review arises from the fact that the same was not fully appreciated in some of the arguments made in the submissions. According to the applicant’s chamber summons, the supporting affidavit as well as the Statement, the applicant’s grievances are to the effect that the decision to dismiss him from his employment, is marred by violations of the law and principles of natural justice. Paragraph 11 of the applicant’s affidavit, which has been reproduced herein above, is clear on what the alleged infringements are. In my views, such allegations raise the question of legality of the impugned disciplinary proceedings rather than meritoriousness of the decisions made. On the other hand, the reply by the learned State Attorney for the respondents has mainly been directed to showing that the applicant has dirty hands and the decision to terminate his employment as well as the appellate decisions confirming the termination are full of merits and were justifiable. In judicial review, the Court deals with the former and not the latter. 16 Having carefully reviewed the applicant’s complaints, particularly the alleged instances of illegality of the disciplinary proceedings and the resultant decision of his employer to dismiss him from employment, a decision which was confirmed on appeal by the 2nd respondent and the President, I am of a firm view that, indeed, some instances of illegality have been glaringly established. I shall demonstrate them as hereunder. Firstly, on the question whether the applicant was or was not supplied with a copy of the Investigation Report, some crucial arguments of legal significance have been raised. While the applicant has maintained that he was not supplied with the Investigation Report that led to the charges against him, with due respect, the reply by the learned State Attorney has been very shaky and evasive. In the Joint Counter Affidavit, it is vividly stated in paragraph 5 that “The Respondents aver that there is no requirement for the employer to supply such copy of the inquiry report to the employee”. Upon reading the law, one finds that this reply is wrong and defies the law. While Regulation 36 of GN No. 168 of 2003 mandatorily required the employer to conduct preliminary investigation if it deemed institution of disciplinary proceedings was necessary, and while clause 8.8 of the Code of Good Conduct mandatorily requires that any document relied upon by a party to the disciplinary proceedings must be made available to all parties in 17 advance, and while there is a plethora of case law authorities, as correctly and relevantly cited by the applicant, holding to the effect that the accused employee must be involved in the investigation and be supplied with a copy of the Investigation Report on which charges against him are based, I hold that the 3rd respondent acted illegally in this regard. In so holding, I am fortified by the position of the law emphatically stated by the Court of Appeal in Enza Zadeni Africa Limited (supra); Severo Mutegeki and Another (supra), and Kiboberry Limited (supra). In the latter case, for example, the Court of Appeal had this to say: “As we held in Severo Mutegeki (supra), the failure to involve the appellant in the investigation that led to the formulation of the report coupled with the omission to share a copy thereof with the respondent was a serious irregularity”. [Emphasis added] The principles of law stated in all the above cited decisions squarely befit the circumstances of the application at hand. The bottom line is, in those cases, as it is in the instant application, the matter under consideration was disciplinary proceedings involving investigation of the conduct of the accused employees. For this reason, the attempt by the learned State Attorney to distinguish those cases with the matter at hand was, with respect, an attempt to move Mount Kilimanjaro by hands. 18 Two more comments I wish to make on this point are as follows: Firstly, as correctly argued by the applicant, it is the GN No. 168 of 2003 that was applicable in 2018 when this matter came about. Fortunately, most of the relevant provisions of this repealed subsidiary legislation have been reenacted in the reigning Public Service Regulations GN No. 444 of 2022. Secondly, while the applicant averred under paragraph 11 of his affidavit that he was not supplied with a copy of the Investigation Report, the reply by the respondents as per paragraph 5 of the sworn joint counter affidavit is that there is no requirement for the employer to avail such a copy to the accused employee. Since, this is the response in the respondents’ pleadings, and since there is nowhere in the entire joint counter affidavit the respondents stating that they supplied a copy of the Investigation Report to the applicant, the submission by the learned State Attorney that the applicant was availed with a copy of the said report is but a statement from the bar. Furthermore, her argument that the applicant has not been able to prove that he was not supplied with the report does not arise in law, as no one can be called upon to prove a negative assertion. It is also my considered view that, since the duty to supply a copy of the investigation report is cast on the employer who ought to have conducted 19 the investigation, the onus of proof that the duty was discharged is on none but the employer. In view of the above demonstration, I firmly hold that indeed the applicant was denied access to vital document and this impaired his right to a fair hearing. The rationale for holding so is as it was aptly stated by the Court of Appeal in Severo Mutegeki (supra), in similar circumstances, thus: “It is the audit report which triggered the charges against them. In that regard, the non-involvement of the appellants and subsequent conviction based on that report was irregular because they could not adequately prepare for hearing before the disciplinary committee” [Emphasis added]. As for the consequences of such a denial of right to a fair hearing, I am further guided by the said decision, as follows: “…the right to be heard before adverse action or decision is taken against a party is so basic that a decision which is arrived at in violation of it will be nullified even if the same decision would have been reached had the party been heard”. [Emphasis added]. While I also agree with the applicant in the rest of the infringements committed by the 3rd respondent such as; lack of impartiality of the disciplinary committee by having some members from the Employer in violation of the law; denying the applicant a right to enter mitigating factors and signing of Inquiry Form and non-provision of copies of notes/minutes 20 taken at the disciplinary committee hearing, infringements which were not specifically contested by the respondents, I am of the view that the proved allegation of denial of right to a fair hearing suffices to dispose of the first issue, which is core to this application. I therefore answer the first issue in the affirmative. Indeed, the disciplinary proceedings which led to the dismissal of the applicant from his employment with the 3rd respondent violated the law and the principles of natural justice. In view of the consequences stated in Severo Mutegeki (supra), even the second issue questioning whether this application merits the exercise of court’s discretion for orders of certiorari and mandamus to issue, is also answered in the affirmative. In final analysis, it is my finding that the decision to terminate the applicant from employment with the 3rd respondent and which was confirmed on appeal by the 2nd respondent and the President was engulfed by procedural impropriety which denied the applicant a fair hearing. Therefore, I grant this application in its entirety. Accordingly, by way of certiorari, I hereby quash and set aside the following decisions: Firstly, the decision of the 3rd respondent to dismiss the applicant from employment constituted in the 3rd respondent’s letter referenced as Kumb Na. HR/5/2/07/VOL.IV/205 dated 15th September, 2018. 21 Secondly, the decision of 2nd respondent confirming the applicant’s dismissal from employment constituted in the 2nd respondent’s letter reference as Kumb. Na. CAC. 22/144/36” G”/37 dated 12th July, 2021. Thirdly, the final appellate decision of the President of the United Republic of Tanzania, confirming the previous decisions, constituted in a letter from the 1st respondent to the applicant referenced as Kumb. Na. CAB. 30/536/PF.1106/8 dated 20th September, 2023. I also grant an order of mandamus compelling the Tanzania Ports Authority, the 3rd respondent herein, to reinstate the applicant to his employment forthwith, without loss of entitlements. As there has been no prayer for costs, and this this being a labour matter, I make no order as to costs. Dated at Dodoma this 4th day of September, 2024. ABDI S. KAGOMBA JUDGE 22