MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISCELLANEOUS CIVIL CAUSE NO. 16121 OF 2024 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW FOR ORDERS OF CERTIORARI AND MANDAMUS AND IN THE MATTER OF APPLICATION TO CHALLENGE THE DECISION OF THE CHIEF SECRETARY CONFIRMING TERMINATION OF THE LATE ANOCHICHE ASHERY SANGA, AND FOR THE ORDER FOR PAYMENT OF THE BENEFITS DUE TO THE EMPLOYMENT OF LATE ANOCHICHE ASHERY SANGA BETWEEN ■ ROSE ANOCHICHE ASHERY SANGA {Administratrixof the estate of the late Anochiche Ashefy^anga).......................... APPLICANT a andK ■ - NGORONGORO CONSERVATION AREA AUTHORITY ........ 1st RESPONDENT ' W '"O' JI CHIEF SECRETARY ................. ................ .......................... 2nd RESPONDENT PUBLIC SERVICE SOCIAL SECURITY FUND.................... 3rd RESPONDENT ATTORNEY GENERAL .............. ...................................... 4th RESPONDENT RULING 13h December2024 & 21st March 2025 Masara, J The Applicant herein, one Rose Anochiche Ashery Sanga, as the administratrix of the estate of the late Anochiche Ashery Sanga ("the deceased"), brought this Application under the provisions of section 2(1) i and (3) of the Judicature and Application of Laws Act, Chapter 358 R.E 20191, section 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 R.E 2019, Rule 8(l)(a) and (b), (2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N 324/2014 and section 95 of the Civil Procedure Code, Cap. 33 [R.E 20191, craving for an order of certiorari to quash and declare the decision of the Chief Secretary issued through the letter with ‘ reference number CAB.30/536/PF.462/12 dated 6%. May 2021, which terminated the deceased from his employment and eventually -Led to nonpayment of the deceased terminal benefits, to have been wrongly made. The Applicant also seeks an order of mandamus for the payment of deceased's terminal: benefits as well as. his social security contributions. The Respondents I contested the Application through a joint counter affidavit deponed by Mr Mwesiga A. Mwesigwa, a principal officer of the 1st Respondent. Before this Court, the Applicant enjoyed the services of Mr Muhamadou Evarist Majura, learned advocate, while the Respondents were represented by Ms Zamaradi Johannes Nyamuryekung'e, learned State Attorney. The Application was heard through filing of written submissions. 2 From the pleadings availed to this Court, facts antecedent to this Application can be summarized as follow: The deceased was an employee of the 1st Respondent as a senior assistance technician, from 1st March 1995 until 5th November 2018 when he was terminated from his employment on grounds of misconduct occasioned by presentation to the 1st Respondent of an alleged forged academic certificate. The deceased appealed to the Public Service Commission where he^ucceedecFand the H X W 1st Respondent was ordered to reinstate the deceased to/his position. The /rX" " X I /..J/ I VVX 1st Respondent was dissatisfied with that decision. He appealed to the Chief Secretary who overturned the decision issued by the Public Service '"X\ 'X> Commission, which was in favouroKthe deceased, an act that prompted zx n Ax \> vt X ?\ the Applicant to seek prerogative orders) by way of judicial review before >Z-1 ’ \ xX.. X.' • "J'/ \\ X this Court. A/ x A As per . the affidavit of the Applicant, the Statement and written submissions filed in support of this Application, the Applicant advanced J;/ five grounds upon which this Application is premised such as follows: l)That the deceased was terminated without proof of the alleged misconduct. 2)That the alleged termination of the deceased was premature and during his survivorship he was not paid his salary arrears for 20 months. 3 3) That the appeal made by the 1st Respondent against the decision of the Public Service Commission was made to the wrong authority. 4) That the Chief Secretary or even the President had no jurisdiction to entertain that said appeal against the decision of the Public Service Commission as the same was time barred. 5) That, as the result of the said decision, the heirs of the deceased have been denied of the right to inherit from thedfenefits of their predecessor, that is payment of social security contribution. In the written submissions, Mr Majura submitted on the first ground that, as per paragraph 2.1 of annexure A5, the Public Service Commission found that the Inquiry Committee did not finalize the Inquiry as there was x< /X * no Investigation Report and there, was no proofxpf the said allegations, such that the Inquiry .Committee proposed that the disciplinary authority should convene a team of experts in order to determine the authenticity of the deceased's certificates so that the committee can conclude the inquiry. That, the committee departed from the said recommendation and n • ■. , . proceeded to terminate the deceased from his employment without assigning apy- reas^hs, contrary to Regulation 48(7) of the Public Service Regulations, 2003 and Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. Mr Majura added that, looking at the Respondents' counter affidavit, no investigation report was attached to it, proving that an investigation was 4 not conducted as required by Regulations 111(1), (2), (3) and (4) of the Public Service Regulations. Mr Majura invited this Court to draw an adverse inference on the Respondents' failure to attach the investigation report. He supported his position with the decision of this Court in the case of Tanzania International Container Terminal Services <X (TICS) vs Flugence Steven Kalimtima and Others (Labour Revision Number 471 of 2016) [2028] TZHCLD 19 (20th April rr / x x 2018)- " (( x ('/'■ ’x\ 'X.X Submitting on the 2nd ground, Mr Majura Argued that>sirice'the deceased <x x\^ was terminated from his employment before finalization of investigation, then his termination from employment was premature and the deceased VA X x was entitled to be paid hisx20 "months' salary, counting from his date of ('/ \X AJ . ' termination to his date of death), as per>the>wordings of section 27 of the X\ ’ Employment and Labour Relations Act, Cap. 366 R.E 2019. ;i :i W X'S X? X On the 3rd ground, Mri Majura submitted that, as per annexure A7, the 1st V\ // \>x J:/ Respondent*ap)pe^ie3 to the Chief Secretary who had no jurisdiction to entertain the said appeal, as the proper authority to determine the said appeal was the President by virtual of section 25(l)(c) of the Public Services Act, Cao. 298 read together with Regulation 60(5) of the Public Service Regulations, G.N 168 of 2003. Mr Majura added that, since 5 jurisdiction is a creature of law then the same cannot be implied or assumed. He supported his stance with the decision of Mlenga Kalunde Miro bo vs The Trustees of the Tanzania National Parks and Another (Labour Revision Application No. 6 of 2021) [2021] TZHC 9097 (30th December 2021). Regarding the 4th ground, Mr Majura conferred that, as per annexures ■ s A5 and A7, the decision of the Public Service Commission was made?on 27th November 2019 an appeal to the Chief Secretary was made on 27th February 2020 after an expiry of 85 days contrary to Regulations 61(1) of the Public Service Regulations, which provides a time frame of 45 days to lodge an appeal. He cemented his position with the case of Deodatus Ndaji vs NAFRAC, Labour Revision No. 22 of 2013 (unreported). Canvassingjthe .5th ground, Mr "Majura submitted that the deceased was a member of the 3rd Respondent and contributed to the 3rd Respondent for I .1 \ I \ • \ \ 284 months and that the 1st Respondent was also contributing to the 3rd Respondent as per the law. That, upon the demise of Anochiche Ashery Sanga, the beneficiaries have not been paid as per the requirement of law, specifically section 28(1) and 29(l)(b) and (g) of the Public Service Social Security Fund Act, No. 2 of 2018. 6 Basing on the submission made, Mr Majura prays that the Application be granted. In reply to the Applicant's submissions, Ms Zamaradi highlighted conditions under which writs of mandamus and certiorari can be issued. On certiorari, she submitted that the Court must ascertain first whether or not the tribunal acted with jurisdiction. She made reference to decisions in Sanai Murembe and Another vs Muhere Chacha[1990] TLR 94, Rahel Mbuya vs Minister for Labour and Youth Development & The Attorney General (Civil Appeal No. 1221 of ;2005) [2008] TZCA 35 (14 May 2008), to support; her assertion. v She added that, in determining/this Application, this Court is sitting as a <x 1 i! Xv supervisory Court under, public Jaw andjnot an appellate court, as the .•-> '"'X'1-. j.i Court is not expected; to deal\witK“tlTe rnerits of the case, rather the process.She reliedspri'the decisions of Mohamed Omary Mohamed \\ N"x> (EXE 4699 CPL) vs The Inspector General of Police 8l Honourable \\ // Attorney General,Misc. Cause No. 04 of 2014 and Zephryne Kitambwa vs The President of the United Republic of Tanzania and 2 Others (Misc. Civil Application No. 33 of 2018) [2019] TZHC 173 (19 December 2019). 7 Responding to the 1st ground, Ms Zamaradi submitted that the deceased was terminated with a resilient proof of the alleged misconduct as he was given a chance to be heard by the 1st Respondent as the law requires under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. That, the 1st Respondent appealed to the President who is a correct authority and did so within the prescribed time. She added that the Applicant ought to take judicial notice that the Chief Secretary is the Chief Executive Officer of the President's Office: ,z Ms Zamaradi went further to submit that, in the present application there is no violation of the principles of natural justice committed by the Respondents. Responding to the claim that there was no investigation conducted, she responded that this Court acting as a supervisory court is not vested with jurisdiction to entertain the>said claim, as the claim lies on an appellate fj \ V\ ■ court which will seat to evaluate evidence and issues of tendering evidence td^pfove- the allegation as per the case of Mohamed Omary Mohamed (supra). Responding on the claim of payment of social security contributions, Ms Zamaradi submitted that the Applicant is using a wrong forum as the 3rd Respondent has never received any claims for the deceased's pension. 8 On the process of termining the deceased from his employment, Ms Zamaradi submitted that the same was conducted in accordance with the law as the 2nd Respondent's appeal was lodged to the President of the United Republic of Tanzania and the decision was delivered through the Chief Secretary, as the head of the Public Service in which it addressed the decision of the President. That the Respondents acted within their jurisdiction in accordance with the law. Basing on the submission made, Ms Zamaradi contended That this Application ought to be dismissed as it lacks merit foKthe Court to grant the orders sought. <\ Mr Majura, in his rejoinder submissions),reiterated his earlier submissions. The learned advocate partly:xdoncedea to the submissions by the Respondents on the^tandardsxset by the Court in the case of Sanai Murembe vs Muhere Chacha (supra) and Rahel Mbuya (supra). LI \\ Mr Majura, however,/distinguished the case of Mohamed Omary Mohamed (supra) from the current Application and stated that the same is irrelevant as the current Application meets the standards enunciated. On the issue of payment of social security contribution, he referred this court to annexure A13 that the 3rd Respondent was served with notice to pay but declined to do so. 9 Having considered parties pleadings and submissions, issues calling for determination by this Court are whether the Application has merit and whether the Applicant's prayers are tenable. It is imperative to note at the very outset that the two main prayers set out in the chamber summons; Certiorari and Mandamus, are prerogative orders. The Court in the exercise of its supervisory'-powers over '> X administrative and quasi-judicial bodies is empowered to grant. This was held in the case of Felix Mselle vs Ministerfor Labour and Youth & Az" ' X ■ ' 3 Others [2002] TLR 446. <> ‘'*.b \ x In the present case, the Applicant's dispute is based on the decision of the Chief Secretary,, issued' thorough the letter with Ref No. CAB.30/536/PF.462/12. The Applicant ^argues that the said decision (.z v- " z,y adversely affected the Applicahbas it nullified the decision of the Public Service -Commission and confirmed the termination of employment of the u X deceased from public'service made by the 1st Respondent leading also to nonpayment of the terminal benefits to the deceased's beneficiaries. The Applicant believes that the impugned decision was arrived at in total abrogation of Regulations 48(7), 111(2), (3) and (4) of the Public Service Regulations, 2003 and sections 28(1), 29(l)(b) and (g) of the Public Service Social Security Fund Act, No, 2 of 2018. which requires that, upon 10 conclusion of inquiry, the disciplinary authority should serve the accused person with the records of proceedings of the inquiry, and that the Local Government Authority to be guided by the directives issued by the Public Service Recruitment Secretariat. The Respondents harbour a different view. They argue/that there was full X compliance with the procedural law and the Applicant's husband was accorded all rights, including the right to be heard by the<1? Respondent U //\\ v in accordance with the law and that the decision/'madetwas dully communicated to the deceased. That, evenlafter thexdecisi6n was made x-\ X against the 1st Respondent, the RespondenKappealed to the proper and correct authority. within the prescribed tirpe. It is the Respondents' x> U* \ V\ • X further contention that the impdgned djeqision was legally promulgated, X x . H is rational, reasonable,-and complied witktKe principles of natural justice. Thus, - according to. the Respondents, the deceased was lawfully •■' ■!! \\ x\ terminated. U XX X XjS. /J From the pleadingsfevidence and submissions, the Applicant has three main contentions; one, that the inquiry committee did not finalize the inquiry as there was no investigation report; two, that the appeal lodged to the 2nd Respondent by the 1st Respondent was improper and was made ii outside the prescribed time and, three, the deceased heirs have been denied benefits by the 3rd Respondent. Before going further to discuss the points of contention in this Application, it is incumbent upon me to outline the powers bestowed to this Court in the exercise of its prerogative jurisdiction. Section 17 of the Law Reform vX. (Fatal Accidents and Miscellaneous Provisions) Act, Cap? 310 R.E 2019 against which this Application hinges provides as follows: "17(1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any bfthe prerogative writs of mandamus, prohibition or certiorari. (2) In any case where the High Court would but for subsection (1) have had jurisdiction to order the issue of a z V' A, * X- writ of mandamusrequiring[ any Mt to be done or a writ of prohibition prohibiting any proceedings or matter, or a writ offcdrtibrari removing any proceedings or matter into the High Court for any purpose, the Court may make an order requiring the act to be done or prohibiting or removing the proceedings or matter, as the case may be." (Emphasis added) It is obvious from the cited law that whereas the High Court is not authorised to issue the writs of mandamus, certiorari or prohibition in ordinary suits, in an application such as this one the High Court has powers to make an order requiring the act to be done or prohibiting or 12 removing the proceedings or matter, as the case may be as per Section 17(2) of Cap. 310. The High Court's power to entertain an application for prerogative orders arises from its inherent powers as spelt out in the Judicature and Application of Laws Act, Chapter 358 R E 20191. <\^ X\ Turning to the matter at hand, the first point of contention is bn whether // Xx, the decision to terminate the deceased was properly ,$adK especially because the same was done prematurely, withOtiLan investigation Report. X* xx( 'XX On this issue, the Applicant beseeched theK Court toXdraw an adverse inference on the failure by thej^ppndehts to attach the investigation report in their pleadings and.evidence.The Respondents, on the other "XiX \\ /) X\ hand, submitted thatthe feguirem^ptXo tender the investigation report is not the proper forum to be placed at this juncture as this Court is sitting -z / 1\ V X. as a supervisory court,as opposed to an appellate court. ' •' ■ A/ I respectively disagree with both contentions. First, whereas it is true that this Cour is not sitting as an appellate court, the Court has all powers to examine the legality of the decision reached by a body whose decision is called to question. An investigation report serves to vindicate a decision to terminate an employee, as employers are not allowed to terminate o employees on prerogative whims but on the veracity of the evidence 13 before it. However, failure to attach the same at this stage cannot be taken to be a ground for certiorari and mandamus. I am satisfied that the issue of the investigation report was adequately dealt with by the Public Service Commission in its decision to rescind the termination of the deceased by the 1st Respondent. I will leave it at that. I now turn to consider the second point raised by the Applicant regarding the legality of the decision by the 2nd Respondent. Two issues arise from this point: one, whether the Appeal to the 2?d Respondent against the decision of the Public Service Commission was proper; and, two, even if the appeal was proper, was it made withip the prescribed time? To properly determine the above, it is imperative that the law governing such matters be outlined. Section 25 of the Public Service Act, Cap. 298 [R.E. 2019] governs appeals in public- service. It provides, inter alia, as follows^ ' ' j; ( \ \ 'V "25(1)- Where - (a) theChief Secretary exercises disciplinary authority in respect of a public servant who is an appointee of the President by reducing the rank other than reversion from the rank to which the public servant has been promoted or appointed on trial, or reduces the salary or dismisses that public servant, that public servant may appeal to the President against the decision of the disciplinary authority 14 and the President shall consider the appeal and may confirm, vary or rescind the decision of that disciplinary authority; (b) a Permanent Secretary, Head of an Independent Department, Regional Administrative Secretary or a local government authority exercises disciplinary authority as stipulated under section 6 by reducing the rank of a public servant other than reversion from a rank to which the public servant had been promoted or appoint€d|qn trial, or reduces the salary or dismisses the publicseiyant, that public servant may appeal to the Commission aoainst the <X. ( \'\ decision of the disciplinary authority and the Commission may confirm, vary or rescind the decision of that x\ X> disciplinary authority; \\ Z\ /’ ■/ X '> I a X \ (c) a public servant or the ^disciplinary authority is . XX \X ji \\ aggrieved witlr the decision^ in J(a) and (b) that public servant or disciolinarv authority shall appeal to the /xz-— , x xx President, Whose decision shall be final; PJ x\ xx V\ (d) the President or the Commission varies or rescinds any decision of dismissing any public servant from the public service and substitutes any other decision of dismissing that public servant, the variation or rescission shall have effect from the date of the original decision and the public servant shall unless sooner having ceased to be a public servant for any other cause, be deemed to have remained a 15 public servant notwithstanding the original decision." (Emphasis added) Section 25(l)(c) of the Act cited above is akin to Regulation 60(5) of the Public Service Regulation, 2003, GN No. 168 of 2003. They require that an appeal by a person who is aggrieved by the decision of the Chief Secretary in the exercise of disciplinary authority in respegt of a public servant who is an appointee of the President or the decision of the Public Service Commission confirming, varying or rescinding the decision of a disciplinary authority, be made to .the President. It is only the President that has the authority to deal with such appeals. It would be against tenets of justice if such powers were to be exercised by any other body inferior to the President. ; ■ ' I do agree with the submissions made on. behalf of the Applicant that it was notjri order for the Respondent to appeal to the 2nd Respondent. The 2?\Respondent is not the President, although he has authority to communicate the.<President's decision. As per annexure A7 in the Applicant's documents annexed to the Application, the 1st Respondent appealed to the Chief Secretary and not to the President. The Chief Secretary, as an individual or as an office, had no jurisdiction to entertain an appeal from the Public Services Commission. Even if the appeal was 16 referred to the President by the Chief Secretary, the same was done administratively and not according to the appeal prepared by the 1st Respondent. Where an administrative body or a quasi-judicial body acts without jurisdiction, such decision is subject to judicial review and is prone to be quashed. The second point aligned to the illegality of the impugned decision relates to the time within which the Appeal was lodged. Itpdes>ithoUtsaying f l Z-„.\ X // that the issue of time limitation is a jurisdictionalissue.A mater/filed out of time strips a court or a quasi-judicial <bpdy of thexjurisdiction to deal with the matter. From the documents availed to me, particularly, annexures A5 and A7, the decision of the Public Service Commission was <X J: { \ made on 27th November 2O19. An appealte'the Chief Secretary was made fZX y \\ Li /’-I on 27th February 202Qi^vhich Was 85 days rafter the decision of the Public Service Commissioh'xRegqlations 61(1) of the Public Service Regulations, : X Xx> 2003 provides a time frame of 45 days to lodge an appeal. It states: "Where any Public Servant desires to appeal under section 25 of the Act or under Regulation 60 of these Regulations, against any decision, he shall within forty-five days of the receipt of the decision, appeal to the appellate authority in writing copied to the disciplinary authority." (Emphasis added) 17 The law explicitly stipulates the time frame to lodge an appeal to the President to be within a period of 45 days of the receipt of the decision. The question is when was the decision of the Public Service received by the 1st Respondent. According to annexure A7, the decision of the Public Service Commission came to the knowledge of the 1st Respondent on 13th January 2020 and the appeal was filed on 21st February 2020 which would be within the 45 days as the law dictates. There existsno evidence to ; • X ,» s\' \ .\Xs prove the contention made by the 1st Respondent regarding the time it got to know of the decision of the Public Service Commission. Further, does getting to know imply the day it received, the decision, or when it knew of the implication of the decision;. Without evidence to the contrary, one has to assume that the decision of the Public Service Commission was communicated to the parties,on the date it was issued. It is difficult to fathom/the argument that the decision was not communicated to the 1st \\ 'V- J Respondent for 47 days. This begs evidence but none was supplied. I find that the appeal was not filed within the prescribed time frame provided for under Regulation 61(1) of the Public Service Regulations, 2003. As the appeal was filed late, the appellate authority lacked jurisdiction to entertain the appeal on its merit. I also note that the Regulation in question only relates to an appeal by a Public Servant. There is no akin 18 regulation to govern a discontented disciplinary authority. The Respondents did not proffer any preference that has to be accorded to a disciplinary authority. It is my assumption that the time frame for appeals by Public Servants provided in the Regulations apply the same to a disciplinary authority that wishes to challenge the decision of the Public Service Commission. Thus, even assuming that the\ appeal was entertained by the right body, in this case the President,, the 'President had no jurisdiction to deal with the said appeal as itwasTiledxput of time. Having so found, I find it unnecessary to delve into tLhe other point relation to the liability of the 3rd Respondent^ It goes without saying that once the impugned decision is.quashed,what remains isThe decision of the Public I ! \ ’*■ V\ V'XX- Service Commission restoring’ the decease^ to his position before his l' f' ■' _ S JJ demise. The order ofmandamusrequestedis therefore denied as it is ipso facto embedded indthe prerogative order of certiorari. V\ In the' upshot the Application partly succeeds. An order of certiorari is \\x /J hereby issued^uashing and declaring the decision embedded in the letter of the 2nd Respondent with Reference Number CAB.30/536/PF.462/12 dated 6th May 2021, which terminated the deceased, anochiche ashery sanga, from his employment to have been illegal and wrongly made. Consequently, the 1st Respondent is directed to comply with the decision 19 of the Public Service Commission made on 27th November 2019. I make no orders as to costs. DATED and DELIVERED at ARUSHA this 21st day of March ,2025 20