20010607 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA AT MBEYA - MISC.· CIVIL APPLICATION NO. 22 JF 2000 RICHARD KASELA ••••••••••••••••••••••••• APPLICANT VERSUS l . THE CHAim-f.AN OF THE TEACHERS) SERVICE COMMISSION (TSC) ~ •• •• • • RES:roNDENTS 2. THE SECID..""TARY OF T.s.c. ) . 3. THE ATTORNEY.GENERAL ) _MACK~,,_,!At .J~ . . Richard Kasela,has_ t~en out a chamber summons by which he has lodged this appli_cati_on. in whic.~ he ,seeks leave to institute an application for t_he twin.prerog~tive orders of certiorari and mandamus. .... - . . . . . . . ·- !. _---~-. -~ .· He also intends -- . t9 p.erl:\ue . an . order .. - that ·_. .' he be. re-instated in ~ . his employment ,:-. as a. teacher with full· .:ra:Y· ~d ~enefits. In tandem w.ith th~ prayers for the above-mentioned orders he seeks costs of the applicatio~ and any other orders this Court -... -~ deem fit to g;ran_t. The application is supported by the applicant's A • ' • '• .. own affidavit. The statement which it is intended to be used in the main application is append 7d as one of the documents that constitute this appl_icc1tion •. .According to .the affid~vital evidence the applicant was, until his ~ontract of employment was determined 1 a teacher in the employ of the • • ' - I Mbeya Municipal Council. His station was Sisimba Primary School. That ·. · .· . in addHio~ to his tea,ching. lessons in classes he was also assigned to -teach .sports _ at a camp that. had peen convened at the Sisimba Primary School compound. Although his record was without blemish, he said, he fqund ... himself . ' being ser:ved with . a' letter by which he was enjoined from ' ' ,. ~ .. teac~in~ sports on alleged grounds of professional misconduct. The ~aid , letter ~ .dated ,?1st July, 3,998. This _letter .was followed by a charge sheet dated 5th August, 1998, by which he was also suspended from teaching 2 ... on account of charges particularised therein, namely:..- 1. indiscipline and profes•sfonal misconductr. -· 2. making love·to a school garJ..called Rozalina Kilekalile of Kyela Primary School; 3. providing beer to and getting the said pupil drunk; .. " 4. ashaming his ?~hooi by reason of.the said misconduct. The letter dated 31st _J_uly, :19.9~ i_s Annexture up.1u and the charge sheet The applicant swears that the allegations of miscondact•are, wild, unsubstantiated and contradictory •. That ..after :inquiries that··~ere made in camera the ·Teach~rs Service Commi~sion 'throtttf;h its ;Mbeya:· R~'gion.tl. Secretary, inf~rmed h:un that '.~it had" disriliss'ed .him frO-ifi the prdfession at its .. ~ ..... meeting. that was held on 28th :Octob~r, 1999~ llis appehl to the ·President having been dismissed he de.cided to institut·e thes~ :proceedfugs to challenge the President's decisi~n~ 'ihe respondents· oppose this applic~ti~n. 'According.to the counter affidavit of. Hamid~ .,E. Ngat~bura,:· who i~- the ·Mbeya Regionai Secretary of the Teachers Service·conimission, the applicant was given· adequate opportunity of being heard as he made representations in'his defence befor~ the.,Regional Teachers· Se~ice Co~~ission for two h6urs on 29th October, 1998.. 'l'hus. the ·decision to dismiss' him from service ·was just, .. fair and reasonableo . . . ~ ""'""'½.at Luka Mbago, lea.rn.-ed Prin~ipal ·state Attorney t swore . -· - -"fidavit on behalf of the third respondent; 'He depories . . .,.,,,.. ; ' ·•,mt that w13 met~i4 ",,.i-: :, ~ -ici-,,, · ,,.,.,..,:,.;, i r.~"'l"-1-·: ,,,l'l!=' ... .,,.; ~ ""•'m -rireviously had a good record. It is in the t.hird respondent• s . affidav 1 evidence that the· allegations contained in ·the ch~rge·sheet were clear ,.telligible and straight forw~d such thit the applicant t••/3 - 3 - easily understood the nature of the case that faced him and 9 as a result, · ·. · he addequately responded to them. It is alleged further that the applicantwas afforded·sufficient .opport:unity when he appeared before the ....,, Regional Teachers. Service Commission on .9t_h October, 1998, before which he made representations from 3.00 p._m. to. 5.00 p.m. The application was cWgued by way _of_ wr.itten arguments. By and large the submissions revolve aro-µnd the pos_itions that were taken in the affidavit and the counter ~ffidayits• I. have . . given.careful considera- ;_ tion of the arguments as well as the affidavital evidence and it seems to me that the issue is whether sufficient grounds do exist to justify the reliefs sought. In that connection it is now generally accepted that an application such as this one will succeed if the applicant can establish that there exist arguable issues to be persued in the main application; that h~ has no other avenue in which he can prosecute his claim and that he has made out a E_ima__~cie case for his application for the prerogative orders. In my assessment of the. evidence. it appear13 .· to me that there are at least thre,e. arguabl.e -· issue6 . up6h whi~h-..an application . ·~· '. ' ... " for tpe preroge,tive orders may be founded, that is to say:- . , L. whether,it was just to deny the applicant leg:-"'l representation; .. 2. whether there was proof that the accused's conduct was inconsistent with sound professional norms and ethics; and whether Rule -29, (4) of G.N. 459 of 1990 was ·~ t ~ , : • ~ ~ compli(;ld ·with by the Teachers Service Commission· sitting as a disciplinary authority over the applicant.and whether the said Commission conducted . any proceedings judicially recognized • .·Now since the decision of the President is final in a case such as ••• /4 4 • . .. • ;..J of Judicial review. And if it is proved that.indeed no proc~edings .. , . were conducted it will be· as good as· holding no inquiry· _at aJ-1. In such a; c~e the applicant'. will stknd a fair chance of success •. Accordingly t 'this application would su:cceede· ·· · .,_ . ~ Application fo·r.,leave is "allowed'• Costs. ·shall abid~- :the final result of the main applicat'ion. Ruling to· be.deliveretj. b;r.~the Acting Di~trict Regist;ar on 7th June, 2001• '. I•.•,. 1, ., ' :. . ··, ., ' Sgd. J. M. MACKANJA JUOOE • L 23/5/2001 ''. Coram: M.G. Mzuna, Ag. DR . . For Applicant: Mr. Mwalcolo,· · Advocate \ . For Respondent·: mr··• Maiata, State ·Attorney c/c: Kossam Court: Ruling· delivered this 7th d'ay of June 2001 in the .,_ presence of Mr. Mwakolo~ iearned Counsel for the T • • . ., . ~pplican:t and ~. I.ialata, learr~ed State Attorney for ·the. respondente . '' sgd: M.G. Mzu.na, Ag. D.R. 7/6/2001 ' · ·Certif1ed.- true-· c·opy of· the .or.ig•l Ruling. r I . \ ,;, ' ' . ' ,- Ag~ DI.STRICT REGISTRAR ., mu