20000705 TZCA Dar es Salaam

IN THE COURT .OF APPEAL OF TANZANIA AT DAR-ES-SALAAM {9_q_~: MAK!-1.ME_, J .A~,~CISANGA 1 J .A. ~And L ~ , J .A.) CIVIL APPEAL NO. 83 OF 1999 ,,, : . BETWEEN SENATE OF UNIVERSITY OF DAR-E.'5-SA~ •••~ • • -APPELL.® ·..:.,• "·' AND 1. EDMUND AARON MWASAGA ·2. BA.KARI RASlllD 3. · MOSES MPUNGU 4. ZAINABU KHALID . 5. LUGAl,JJl: ISAC-r:: CHITAMA (Appeal. from ·the Ruling and Ord~r of the· High Court of Tanzania at Dar-es-Salaam) / \ dated 29~h April, 1999 in M~~• Civil Cause No. 59 of 122§. ·--- RULING . I This is 8-ll appeal agi?.inst _ the,_ ~ecisie...-,, -0£ -the H:1.gh 0--t {t-(eumi 1 J.K.) of 29.4.1999. The background giving ris~ to the case may be stated within a narrow .compass. The respondents were students of the University of Dar-es-Salaam· and the ~PI;ellant is the Senate of the University. On 5.8.1998, the appellant issued letters to the respondents tl.i.scontinui.'lg them from studies at the University. It ,was claimed on behalf of the appellabt that the respondents had contra~ene'd t.he . . University General Examination Regulations. The respond~~-s took the matter to the court where they obtained ex·p::irte leave to file the application for orders of certiorari against the appellant. Consequently, the respondents filed the ·application in the High_-:Gourt seeking the .. . ,.. .. . . prerogat•i.ve· order of certiorari to ~\lash the appellarit 1 order to s discontinue the respondents from studies at the University. At the eommencement of the hearing of the application·in the High Court the ••e•/2 2 appellant raised a preliminary objection on the ground that the application was incompetent because it was based on invalid ex parte proceedings. The objection was overruled and hence this appeal has been instituted. In this appeal, the appellant, the Senate of the University of Dar-es-Salaam, wa.s represented by Mr. Mselem, learned counsel. On the other hand Mr. Magesa, learn.ed counsel, advocated for the respondents. For the appellant, Mr. Mselem filed the following grou.-id ·of appeal: That the learned trial judge erred in law fa overruling the appellant I s preliminary objection and thereby entertaining the respondents• application for prerogative orders of certiorari which was incompetent and misconceived in that:. (i) In law there was no leav~ to apply for the said prerogative orders as the Honourable Attorney General was not joined as a party at the time leave was sought for; (ii) Even after leave to apply for pre- rogative orders was granted, the respondents, in their application for the said prerogative orders, had not joined the Honourable Attorney General as a party. When the appeal was called on for hearing, Mr. Magesa, learned e~unsel for the respondents raised a preliminary objection. He had earlier filed notice of preliminary objection in terms of Rule 100 · of the Court's rules. The preliminary objection was to the effect that the appeal was not properly before the Court because leave to appeal was not obtained as required under Section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. In support of the objection he took the view that the order of 29,L~.1999 by the High Court 1:,hich i.s • ooo,/3 3 appealed against does,not fall within the cll"cumstru;ices specified under section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Pr.visions) Ordinance, Cap. 360 of the Laws as amended by Act No. 5.5 •f ~ .(1-..rarei?!.afkT -tG he rete-rred as the Ordi.na."\ce) • Secondly, Mr. Magesa stated, the automatic right of appeal under .subsection (5) ef section 17 of the Ordinance is aveilahla only where the order <emPlB,:i.netl .agairult is not only final but al.so finally detennines the issue. In t~is matter, Mr. Magesa stated, the order complained against involves an interlocutory matter and not the substantive is.sue .z.-eein-ding tll,. ~t-uig or -o:thenlise of an -'Ord~ fo:r ~jox-~i. According to Mr •. Magessa, if the decision o·f the High Court, the subject matter in·this appeal was to the effect that the application for certiorari was either granted or refused, then an automatic right of appeal under section 17 (5) of.the Ordinance would be available. Referring to the decision of a single Judge of this Court in Tar>.zania ~~..8!._l_d_ _G__e_E_l..~ .kO.-.c.k~d_._~_ Th~ Ei!lj.§_t§_:r:_ for_J,a.bourL Civil AJ?Plicat~~o.!._.1.3.~f 19.27, Mr .. Magesa fll'Illly maintained that this case is distinguish.able :from the instant one because in the E_o..r._t~ <:a&e the matter in,:ro1ved had been finally determined. Re explained further tha.t in that case the Ministerl s ~er to rei:o.state the emp:!.oy~ bad also, been upheld by the High Court against which decision an appeal was preferred to this ,-. Court. In that situation, Mr. Magesa urged, there was an automatic right of appeal under section 17 (5) of the Ordinance. In the present case, however~ Mr. Magesa contended, the circumstances being different ·as the order against which the appeal is lodged does not finally determine the issue under section 17 (2), leave was necessary. Because the appeal was instituted without leave, it is incompetent, it should be struck out, Mr. Magesa prayed •. For the appellant 1 ¥.r. Mselem, lea.-.-x-,ed counsel, appeared. He vigorously opposed the prel:i!llinary objection. In his submission, he ••.. /4 ··-, 4 referred the Court to the provisions of section 5 (1) of the Appellate Juri3iiction Act, 1979. It provides to the effect that except ~~ ~ ~ther written law for the time being in force provides otherwise, al\ appeal shall lie to the Court of Appeal in the ·circumstances as the ..,-pe,eified und.erlsub-section. In this ease, he submitted, as the order which it is inteDde.d to appeal against is made under the provisions of section 17 (2) of the Ordinance, no leave to appeal was required because there was an automatic right of appeal under the provision of sub-section 5 of section 17. Under this sub-section, he stated, it is provided that any person aggrie'lred by an order made under section 17 may appeal to the Court. This being a written law providing otherwise,- ?.11-. Mselem countered, no leave was required for appealing to the Court. The Court was referred to its decisions in the ca,3es of ;L_!:.ons Silaj':0 P..&J a_i ...Y..]iQ.??-_• Justine Alfreg, Salal<ana and AnotheJ:, Civil Appeal No. 38 of 1996, (unreported) and ,.Tanzania____________________~--- ..,._ .... Portland Cement Co. Ltd. v The ~~~t~~y--:0£._~b,:?~ (supra). Relying on the decision of the Court in Tanzania Portland Cement Co. Ltd, Mr. Nselem enthusiastically i=i.ted. the Cou-r-t t:o ho1d that no 1es.ve W/3.F., required for appealing ~ th:i.a matter. / Upon a close examination of these submissions, we think the crucial issue for determination in this matter is whether leave was ae; a matter of law required for the institution of the appeal. It is common knowledge that unless provided otherwise by any other written law, section 5 (1) of the Appellate Jurisdiction Act, 1979 specifies the circumstances in which appeals shall lie to the Court with or without leave. In this ca.se,- as observed before, Mr. Mselem :strenuously. contended that section 17 (5) ·of the Ordinanoe is such writt_en law which provides otherwise in regard to the right of appeal to the Court. That -is, according to Mr. Mselem, leave was not required in this case. Section 17 (5) of the Ordinance provides that: •..•/5 - 5 - Any person aggrieved by an order made under this section ma:y appeal to the Court ...... \/With respect, we agree with Mr. Mselem that this sub-section provides an automatic rieht of-appeal against an order or decision made under this section. So, the pertinent question here is whether the order of 29.4.1999 by the l_earned Principal Judge falls within the purview of the provisions of section 17 (5) of the Ordinance. In order to resolve this issue we think it is relevant to examine closely the nature of the matter before the learned Principal Judge which he was called upon to determine. It is to be observed that the matter before -. the learned Principal Judge (J.K.) had gone beyond the stage of seeking leave to apply for orders of certiorari. At that stage the court was set to hear the substantive application under section 17 (2) l'f the Ordinance. As already pointed out, at the commencement of the hearing of the application, the appellant raised the preliminary_ objection that the ·ex parte proceedings seeking leave to file the application for the prer~gative order of certiorari were a nullity because the Attorney General was not joined as a party in terms of the provisions of section 1?A -ef the Ordinance as amended by Act No. 27 of 1991. The preli.11inary object.ion was overruled and that is the order which has given rise to this appeal. At this juncture, it is pertinent to consider whether the order overruling the prel:iminary objection finally determined the substantive iss~e before the Court, viz application for the order of certiorari? We do not think so. This is so because the preliminary objection raised and ·the resulting ruling by the learned Principal Judge (J .K.) did not in any way touch on the substantive issue, the ·subject o_f the application. In essence, the preliminary objection was questioning the validity of the ex parte leave proceedings for failure to join the Attorney General as a party. In our view I this move on the part of the appellant was in effect 6 - . taking the matter back to the stage of seeking leave to file the application. With respect, we are in agreement with the learned Principal Judge that at tr.at stage the proper thing for the appellant to do was not to question the propriety of the proceedings granting l.eave ex parte by wa:y of a preliminary objection before the Principal Judge., If the applicant was dissatisfied with the order granting leave ex parte an appeal should have been filed to this Court when, \at the bearing of the appeal, the issue of not joining the Attorney General would be raised. Reverting to the decision of 29.4.1999 in which· the learned Principal Judge overruled the preliminary objection, we are of the considered view that the order did n6t finally detennine the application .for the prerogative order of certiorari under section 'V 17 (2) of the Ordinance. This was next to be heard after the preliminary objection had been overruled. As the substantive _application was yet to be heard and decided upon, we do not think that the order of 29.4.1999 is the type of order .envisaged under section 17 (5) of the Ordinance. Tr- our minds, the orders that fcdl ,,ri.thin the purview of section 17 (5) of the Ordinance are those which, as submitted by Mr. Magesa, finally detennine an application for the prerogative orders of certiorari one way or the other. The orders which do not touch on.the substantive matter provided ·for under section 17 (2) as was the case in the matter before the learned Principal Judge~ are not covered under the provisions of sub-section (5) of section 17 of the Ordinance. In this case, the learned '- . . Principal Judge (J.K.) did not make an order refusing or granting an order of certiorari. In other words, the order of 29.4.1999 was not a matter which was decided under section 1? (2) of the Ordinance. The case of Tanzania Portland Cement Coo Ltd. (supra) to which the Court was referred by Jv'ir. Mselem, is distinguishable from the instant case. In that case, the applica.~t, T--c:uizania Portland Cement \_ •••• /7 - 7 - ee. Ltd. had dismissed sixteen employees. The employees were ordered V by the Minister For Labour to be reinstated. The High Court upheld the Minister's order for the employees 1 reinstatement by dismissing the application for an order of certiorari under section 17 (2) of the Ordinance. When the matter came before a single Judge of this Court (Ramadhani, J .A.) the question of obtainil]g 1.eave to ~eal ,was raised. The learned single Judge took the view that as the appeal was based.on an order made under sub-section (2) of Section 17 of the . . Ordinance no leave was required for appealing to the Court. In that ease it is crystal clear that t_he High Court in dismissing the . . application for the prerogative orders of certior-ari to quash the Minister's decision t~ reinstat·e the ~ployees bad made a :f.'ina.1. order detennining the matter before it in terms of the provision of sub- section (5) of Section 17 of the Ordinance. Under such circumstances, the High Court having made a final order on the application before it for an o!lder of certiorari, the order fa1l.s within the scope of sub- section 5 of Section 17 of the Ordinance. \,fe are therefore respectfully in agreement with the learned single Judge that no leave was required in the circumste.nces of that case. In the instant case however, the situation is different. Here, the Court h.a.d not rea.c1?e<1 ✓the stage of making an order for certiorari. Therefore, it is our .,,. view that no final decision pertaining to the application before the High Court had been made. For that reason we are firmly of the view that the provision of sub-section (5) of Section 17 of the Ordinance does not apply in this case. It follows therefore that in this matter there is no exce~tion provided for under any written law which would enable the ·institution of the appeal to the Court against the order of 29.4 .. 1999, without leave as required under section 5 (1) (c) of the Appellate Jurisdiction Act, 1979. • ••• /8 . - 8 - In the circumstanees, as there was no leave granted for instituting the appeal to the Court against the order, the appeal is 1 as correctly submitted by Mr. Magesa, learned counsel, incempetent. Accordingly, the objection raised is sustained. The appetl is struck out with costs. It is so ordered. Cfa:y Of' July, zcioo; L. M. V.iAKAME JUSTICE OF APPEAL ,,,-.. Ro H. KISANGA JUSTICE OF APPEAL . D. z •. LUBUVA JUSTICE OF APPEAL I certify that this is. a true copy •f the .o.:cigina)..; ~ R DEPUTY REGISTRAR