RULING RAAWYA HERMOHAMED VS WAZIR MASHIR SOCIAL WELFARE FINAL

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DODOMA MISCELLANEOUS CIVIL CAUSE NO. 13565 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS, PROHIBITION AND CERTIORARI. AND IN THE MATTER OF THE CRIMINAL PROCEDURE ACT, [CAP 20 R.E. 2022] AND IN THE MATTER OF THE PENAL CODE [CAP 16 R.E. 2022] AND IN THE MATTER OF THE NATIONAL PROSECUTION SERVICE ACT [CAP 430 R.E. 2019] AND IN THE MATTER OF THE POLICE FORCE AND AUXILIARY SERVICES ACT [CAP 322 R.E. 2002] AND IN THE MATTER OF IMPEDING THE INVESTIGATION OF AN OFFENCE OF UNNATURAL OFFENCE COMMITTED AGAINST AWAB ISACK IBRAHIM - A MINOR AGED 7 YEARS OLD AND UNLAWFULLY PERMITTING THE ALLEGED SUSPECT TO FLEE FROM TANZANIA WITH THE VICTIM TO OMAN - ACTIONS WHICH OCCASSIONED OBSTRUCTION AND MISCARRIAGE OF JUSTICE, PREEMPTED THE ORDERS OF THE JUVENILE COURT OF KISUTU AT DAR ES SALAAM AND DIRECTIVE OF THE DIRECTOR OF DAR ES SALAAM CITY COUNCIL BOTH DATED 28TH FEBRUARY, 2024 1 RAAWYA HERMOHAMED JALAL..............................................1st APPLICANT SEIFA ALLY............................................................................2nd APPLICANT VERSUS WAZIRI NASHIRI (SOCIAL WELFARE OFFICER)................... 1st RESPONDENT WALTER AMANDUS KAYOMBO (SOCIAL WELFARE OFFICER).............................................. 2nd RESPONDENT WP. 8726 SGT. DIANA (INVESTIGATOR)............................. 3rd RESPONDENT THE OFFICER COMMANDING STATION (CENTRAL POLICE STATION- DAR ES SALAAM POLICE SPECIAL ZONE)............................ 4th RESPONDENT THE ZONAL CRIMES OFFICER- DAR ES SALAAM SPECIAL POLICE ZONE).............................5th RESPONDENT THE ZONAL POLICE COMMANDER- (DAR ES SALAAM SPECIAL POLICE ZONE)........................... 6th RESPONDENT THE INSPECTOR GENERAL OF POLICE................................ 7th RESPONDENT THE DIRECTOR OF CRIMINAL INVESTIGATION................... 8th RESPONDENT THE DIRECTOR FOR PUBLIC PROSECUTIONS...................... 9th RESPONDENT THE HONOURABLE ATTORNEY GENERAL......................... 10th RESPONDENT RULING 8th & 14th July, 2024 KAGOMBA, J. The applicants herein are seeking leave of this Court to file an application for judicial review aiming to obtain orders of mandamus, prohibition and certiorari, against the respondents. 2 This application is preferred by way of a chamber summons made under Sections 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 R.E 2019] and Rule 5(1) (2) (3) (4) (5) and (6) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 ("GN No. 324 of 2014"). The same is supported by a joint affidavit and a joint statement of the applicants. Briefly, the applicants are unhappy with the action of the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th respondents of halting and closing the investigation proceedings in respect of unnatural offence allegedly committed against one Awab Isack Ibrahim, a minor aged seven (7) years old. The alleged ugly act of criminality was reported at the Central Police Station in Dar es Salaam as CD/IR/606/2024 and subsequently registered in Investigation File No. CD/IR/409/2024. Against the expectations of the applicants, the investigation was unceremoniously halted and the accused public officers handed over the victim to his mother one Nashwa Hermohamed Jalal and her husband one Tariq Ahmed Ali Alismail, the latter being the criminal suspect and a step father of the victim. It all started with the visit of the victim's mother and her son to Tanzania from Oman where they reside. She was accompanied by her 3 husband, the suspect, where in the course of their stay with the applicants, the second applicant discovered that something was wrong with the victim child. Upon interrogating him, the child revealed that her step father had sodomized him, and that it was not the first time. The applicants reported the matter to Police and it reached the Juvenile Court too, where the second applicant obtained an interim Court order for custody of the victim while the matter was being investigated by Police. To their utter shock, they came to learn that the victim's mother and her husband were allowed to flee the country together with the victim, the investigation was halted and the Investigation file mentioned herein above was closed. Being irritated by that act of the police and social welfare officers involved in the matter, the applicants who are, respectively, an aunt and a grandmother to the victim, are now in this Court seeking leave so that they can apply for the following orders: (a) Declaration that; (i) the action by the 1st , 2nd, 3rd, 4th, 5th, 6th and 7th respondents of halting and closing the investigation proceedings in respect of the offence of unnatural offence committed against the victim child aforementioned and 4 reported at Central Police Station in Dar es Salaam as CD/IR/606/2024 and subsequently registered as Investigation File No. CD/IR/409/2024, handing over of the victim to his mother and the criminal suspect, and the omission to arrest a criminal suspect was unlawful and offended criminal procedures and consequently occasioned miscarriage and obstruction of justice. (ii) That, the investigation proceedings in respect of Investigation File No. CD/IR/209/2024 be resumed, the victim be returned to Tanzania and the criminal suspect Tariq Ahmed Ali Alismail be arrested and charged. (b) Certiorari to quash; (i) The Orders by the 1st and 2nd respondents of handing over the victim to her mother and the criminal suspect. (ii) The Orders by the 3rd, 4th and 5th respondents of closure of the Investigation File No. CD/IR/209/2024. 5 (c) Mandamus to order; (i) The 3rd, 4th, 5th, 6th and 7th to resume Investigation File No. CD/IR/209/2024 wherein the victim is, Awab Isack Ibrahim, a Minor aged 7 years old and to order the arrest of a criminal suspect namely Tariq Ahmed Ali Alismail, a National of Oman. (ii) The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th and 9th respondents to return the victim, who was taken from the custody of the applicants forcefully, to Tanzania under the care and supervision of the applicants. During hearing, Messrs. Warehema Kibaha and Eric Akaro, learned Advocates, represented the applicants while Mr. Dastan Gerald Mukisa, learned Counsel from the Office of the Inspector General of Police, represented the 4th to 8th respondents. The 1st, 2nd, 3rd, 9th and 10th respondents were duly served but opted not to turn up, hence the hearing proceeded in their absence. Submitting for the applicants, Mr. Kibaha, learned Advocate, contended that the application is filed within six (6) months period from the occurrence of the incident complained of, and that the joint affidavit and 6 joint statement accompanying the application have managed to sufficiently disclose the grounds for issuance of leave. The learned Counsel referred to the decision of the Court of Appeal of Tanzania (CAT) in the case of Emma Bayo vs. The Minister for Labour and Youth Development, Civil Appeal No. 79 of 2012, at Arusha, (Unreported) for criteria to be observed in granting leave. He mentioned them as timely filing of the application within the statutory time limit of 6 months; applicant to show sufficient interest in the matter and presence of an arguable or a prima facie case. Based on the applicants' joint affidavit, the learned Counsel submitted that the cause of action arose on 9th March, 2024 and this application was filed on 7th June, 2024, being within the limit of six months. As to whether his clients have sufficient interest in the matter, he submitted that they are the ones who raised the victim from infancy until he was five (5) years old, and that upon discovery that unnatural offence was committed against the victim, it is his clients who were given exclusive custody of the victim by a formal handing over made on 28/2/2024. Hence, the applicants have sufficient interest in the matter. He argued. 7 Adding to the second criterion, the learned Counsel submitted it is the applicants who reported the incident to police, and were the complainants when the police opened the investigation file. Regarding the criterion of an arguable or prima facie case, the learned Counsel started with a caution that at leave consideration stage, Court needs not go to the root of contention which is reserved for the main case, but needs just to see whether there are arguable issues raised. According to him, the applicants have presented serious arguable issues on misconducts and omission to perform duties by the respondents as public officials who have been vested with the duty to protect the citizens and their properties. Citing the decision of the CAT in the case of Sanai Murumbe and Another vs. Muhere Chacha [1990] T.L.R 54, the Counsel contended that upon granting of leave, the Court will have the opportunity to determine on illegalities in this matter. He invited the Court to peruse paragraphs 15, 16, 19, 20, 22, 23, 24, and 25 of the applicants’ joint affidavit, whereby the applicants have raised issues to be investigated by the Court once leave is granted. The issues mentioned are: The conduct of the police officers to close the Police 8 Investigation File No. CD/IR/209/2024 on the offence of Unnatural Offence; the handing over of the victim to his biological mother in contravention of the drawn order of the Juvenile Court of Dar es Salaam at Kisutu of 28th February, 2024; failure to arrest the suspect; the resumption of the police investigation on file No. CD/IR/209/2024; the return of the victim to the safe custody, and the jurisdiction of the Police Officers to close the investigation file without seeking opinion of the Director of Public Prosecution (DPP). Others are; infringement of the principles of natural justice caused by the act of closing the Investigation File; the unlawful detention of the 1st applicant at Central Police station, Dar es Salaam on 7th March, 2024 and, failure to arrest and charge the suspect. When Mr. Mkisa was given floor to make reply submission, he firstly adopted the counter affidavit and reply statement of the 4th to 8th respondents to be part of his submission. He went on to oppose the application contending that the same was filed prematurely. Clarifying on his contention, the Counsel submitted that the investigation is still pending at Dar es Salaam Zonal Police, as the Inspector General of Police (IGP) who is the overall in charge of the Police Force in 9 terms of section 7 of the Police Force and Auxiliary Service Act, Cap 322, has never made any decision pertaining to this matter. Hence, the investigation is not closed. Referring to Rule 4 of GN No. 324 of 2014, Mr. Mkisa further contended that, since judicial review is open to a person whose interest has been adversely affected, in absence of the final decision of IGP it will be difficult to determine if the applicants have been adversely affected and there will be no arguable case. He added that, the applicants will be challenging the decision of the Zonal Police Commander, who is not the final authority within the Police Force. He discounted the principles laid in Sadani Murumbe vs. Muhere Chacha, (Supra), for irrelevance to the matter at hand. Mr. Mkisa cited the case of F3329 CPL. Buberwa Leonard Magayane and Another vs. Minister of Home Affairs, Inspector General and Attorney General, Civil Appeal No. 119 of 2020 CAT at Mwanza, for the holding that in absence of a decision of the authority, leave would not issue. In the end, he prayed for striking out the application. Rejoining with regard to absence of final decisions of the IGP, Mr. Kibaha contended that, his counterpart has not disputed, the fact that there 10 was a decision or order made by the 5th respondent to close the investigation. To him, such a decision sufficiently warranted the grant of leave for a reason that the 5th respondent or even IGP had no jurisdiction, as the only authority with the mandate and power for prosecution is the DPP. For this reason, the learned Advocate finds the decision or order of IGP as having nothing to do with this application. He also finds on the wrong, the argument that this application is premature, reckoning that the respondents have not filed any evidence to show that the investigation was still pending. Mr. Kibaha further took issues with the respondents' averment that there was initiative of returning the child victim to Tanzania. He argues that such an averment implies that there was something wrong regarding the child's outbound trip, in the first place. He added that for there being no objection that both the accused and the victim child were in Tanzania, the only way is to apply for judicial review to compel the returning of the suspect. He, therefore, prayed the Court to find that there are arguable issues and proceed to grant the leave to file for judicial review. In a further rejoinder, Mr. Eric Akaro, learned Counsel for the applicant took issues with Mr. Mkisa's submission that in F3329 CPL. Buberwa 11 Leonard Magayane (supra). He rejoined that while Mr. Mkisa implied that in Buberwa's case absence of decision of IGP led to denial of leave, the actual decision of authority referred to and which was missing was RPC's. Mr. Akaro alerted the Court that the 3rd respondent who is the investigator had not filed a counter affidavit. Hence, he has not denied the facts deposed in joint affidavit of the applicants that the investigation has been halted or has come to an end. He found their averments wanting for being silent as to who in the Police was still carrying out the investigation. Finally, he disputed the allegation that the investigation was pending for an administrative decision. He also faulted the respondents for not procuring a counter affidavit from the 5th respondent to counter the applicants' averments on the directive he issued, nor a counter affidavit of the DPP who issues the final decision on competence of criminal cases to be filed in court. Hence, wound up by supporting Mr. Kibaha's prayer for the application to be granted. The above rival submissions give raise to one main issue, which is whether the application has met the legal threshold for grant of leave to the applicants to file for judicial review. 12 As correctly stated by Mr. Kibaha, the threshold for granting leave is to be found in the decision of the Court of Appeal in the cited case of Emma Bayo vs. The Minister for Labour and Youth Development (supra) and in other similar decisions. The three criteria mentioned therein, provide a simple yardstick for gauging whether an application for leave has passed the test of acceptance. In this regard, the Court of Appeal had this to guide: "It is at the stage o f leave where the High Court satisfies itself that the applicant for leave has made out any arguable case to justify the filing of the main application. At the stage o f leave the High Court is also required to consider whether the applicant is within the six months limitation period within which to seek a judicial review o f the decision o f a tribunal subordinate to the High Court. At the leave stage is where the applicant shows that he or she has sufficient interest to be allowed to bring the main application. These are the preliminary matters which the High Court sitting to determine the appellant's application for leave should have considered while exercising its judicial discretion to either grant or not to grant leave to the applicant/appellant herein." [Emphasis added] 13 I have carefully read the applicants' chamber summons, joint statement as well as a joint verifying affidavit in view of the Counter affidavit of the 4th to 8th respondents to see whether the application passes the legal test above. I have considered the rival submissions and the law too. In my view, there has not been any dispute as to whether the application has been filed timeously, within the prescribed period of six months from the date of the actions intended to be challenged. According to undisputed fact, the cause of action arose on 9th March, 2024 and this application was lodged in this Court on 7th June, 2024, being approximately three months, which is within the statutory limit of six months prescribed under rule 6 of GN No. 324 of 2014. I therefore, put a tick on this first criterion. As to the question whether the applicants have raised an arguable case, I would answer it in the affirmative. The applicants claim, inter alia, that the police and social welfare offers herein, being public officials vested with the duty to protect the citizens and their properties, have committed serious misconduct in the performance of their duties, and or have neglected their duties leading to the fleeing of the accused person and the child victim of unnatural offence. It is on record as shown herein above that the 14 applicants' counsel made a long list of issues which they intend to put forth during judicial review. In my view, there is a prima facie case established based on the questions whether the respondents conducted themselves in accordance with the law and procedure in closing down the Police Investigation File No. CD/IR/209/2024. There is also a question whether the drawn order of the Juvenile Court of Dar es Salaam at Kisutu of 28th February, 2024 was duly observed in handing over the victim to his biological mother. Other questions are on the jurisdiction of the Police Officer to close the investigation file without seeking opinion of the DPP and on the conduct of the police in failing to arrest the suspect of the alleged crime. I should state at this juncture, and in line with the caution raised by Mr. Kibaha during his submission in chief, that in determining whether a prima facie case has been established, only what this Court has to do is to find out whether the applicants have presented an arguable case. The Court will be acting in excess of its jurisdiction, at this stage, if it will delve in the real issues reserved for determination during judicial review. 15 Mr. Mkisa questioned whether there can be an arguable case while there is no decision of IGP, as the final authority in the Police Force. In my view, this argument does not arise in relation to presence or absence of an arguable case. It could be validly raised in relation to the requirement for exhaustion of available local remedies. Unfortunately, Mr. Mkisa did not did not lead this line of argument and didn't tell us if under the Police Force and Auxiliary Services Act, Cap 322 there is an established right to appeal to the IGP if one is dissatisfied with a closure of Investigation File done by RPC or other officers at Zonal level. Many questions could be asked of actual role and limitation of IGP in investigation of crimes reported at Police stations. Suffice to say here that, as a general rule exhaustion of available domestic remedies is another requirement for granting of leave. The word "available", is commonly used in relation to this requirement to connote that the appeal procedure to be exhausted must be established in the law, as a matter of right. The appellate channels should not be imaginary or which make it difficult for complaints to achieve their claimed rights. In the law cited by Mr. Mkisa, I have seen no such remedies available for exhaustion. In the final analysis, I hold that the applicants have established an arguable case. Hence, another tick on this criterion too. 16 The third criterion is on having sufficient interest in the matter. There has been no opposition on satisfaction of this criterion by the applicants. Mr. Kibaha submitted that the applicants are not only relatives of the victim child who raised him up to around age of five, but also are the wrestle blowers on the commission of the alleged crime. They reported the incident at police station, and were keen to make follow up on the matter. In my opinion, a collection of all that suffices to establish that the applicants have sufficient interest in this matter. Hence, another tick. Before winding up, I feel obliged to clarify two things: One, much as the application is related to allegation of commission of a criminal offence, the application is properly registered as a civil cause because the gist of the applicants' grievances is the conduct and decision of the respondents, as public officers, in relation to the exercise of their powers in performance of public duties. Two; it is not incumbent upon this Court to determine whether or not allegation raised by the applicants are true, or how far such allegations are true. It will be ssufficient for the Court, having checked what is presented before it by parties, to make a finding that the applicants have met the criteria for grant of leave to file for judicial review. 17 In the end, therefore, I am satisfied that the applicants have met the legal threshold for granting of leave to file for judicial review. Accordingly, the application is granted and ipso facto, leave is granted to the applicants to apply for orders of mandamus, certiorari and prohibition as prayed in their chamber summons. No order as to costs. Dated at Dodoma this 24th day of July, 2024. ABDI S. KAGOMBA JUDGE 18