Ruling Miscellaneous Civil Application No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI MISCELLANEOUS CIVIL APPLICATION NO. 5488 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR PREROGATIVE ORDERS OF CERTIORARI AND MANDAMUS; AND IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, CAP 310 R.E 2019; AND IN THE MATTER OF THE PUBLIC SERVICE ACT, CAP 298 R.E 2019 AND IN THE MATTER OF APPLICATION TO CHALLENGE THE DECISION OF PRESIDENT OF THE UNITED REPUBLIC OF TANZANIA BEING A FINAL APPELLATE AUTHORITY ACTING UNPROCEDURALLY TO CONFIRM THE APPLICANT’S TERMINATION FROM THE PUBLIC SERVICE, DATED 26TH JUNE 2023. BETWEEN SOPHIA NYABOKE OMARIBA…………………………………..APPLICANT VERSUS CHIEF SECRETARY ……………………….....…………..…1ST RESPONDENT HON. ATTORNEY GENERAL …..………………….......…2ND RESPONDENT RULING Date of Last Order: 09.07.2024 Date of Judgment: 24.07.2024 MONGELLA, J. The application at hand has been preferred under Section 17 (2) of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) Act [Cap 310 R.E 2019] and; Rules 5 (2), (5) and (6) of the Law Reforms Page 1 of 12 (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules [GN No. 324 of 2014]. In this application, the applicant is seeking for the following orders as appearing in her chamber summons: 1. That, leave be granted to the applicant to seek an order of certiorari to quash the order of dismissal imposed by the President of the United Republic of Tanzania to the applicant on 26th June, 2022 for being made against the rules of natural justice and embarrassing to the applicant. 2. That, this honourable court be pleased to issue an order of mandamus to compel the 1st respondent to reinstate the applicant and that she be paid all her salary arrears and other emoluments from 15/09/2021 to the date of her reinstatement. 3. That, leave be granted to waive statutory notice of 90 days to the Respondent for applying for judicial review. 4. Cost be borne by the Respondent. 5. Any other order or orders that this honourable court may deem fit to grant The applicant’s chamber summons was supported by her own sworn affidavit. Although the respondents sought to file their counter affidavit, they failed to comply with the fixed schedule. As such they were confined into arguing legal matters only. The application was resolved in writing whereby the applicant was represented by Mr. Saburi Yakubu, learned advocate, while the Page 2 of 12 respondents were represented by Mr. Yohana Marco, learned State attorney. Mr. Yakubu briefly explained that the applicant was terminated from public service after a disciplinary hearing. He said that she appealed against the said decision before the Public Service Commission, but her appeal was dismissed and termination confirmed. She further appealed to the President of the United Republic of Tanzania, but the appeal was dismissed. The applicant now seeks to challenge her termination vide judicial review. Considering that the President’s decision was final, the learned counsel further argued that the applicant has no other alternative efficacious remedy against her termination than to seek for judicial review in this Court. Referring to Rule 4 of the Law Reform (fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, he contended that this Court is the only authority vested with powers to review the President’s decision. Mr. Yakubu considered the application having merit on the ground that there are arguable legal and factual issues to be adjudicated upon by this Court. He had the view that the issues raise concerns on irrationality, impropriety or non- adherence to legal rules of procedures by the decision making authority in reaching its decision. Explaining the alleged irrationality and impropriety, he claimed that the applicant was condemned unheard which was contrary to Article 13(6) of the Constitution of the United Republic of Tanzania, 1977. He contended that the applicant had the right to Page 3 of 12 appear before those who investigated her appeal. In addition, he challenged the President for disregarding her grounds of appeal without assigning reasons on why they were rejected. The learned counsel concluded by expressing her views to the effect that the issues advanced show that the intended judicial review bear merit as the applicant has established a prima-facie case particularly, the denial of right to be heard. He thus prayed for the application to be granted with costs. In reply, Mr. Marco confined himself into discussing the conditions precedent for leave to file judicial review to be granted. He referred the case of Pavisa Enterprises vs. Minister of Labour and Youth Development and Another (Misc. Civil Cause 65 of 2003) [2007] TZHC 13 (16 August 2007) by His Honourable Juxton Mlay (As he then was), averring that it was in the said decision that the conditions for grant of leave to apply for prerogative orders were first settled. He contended that four conditions, including the condition that the applicant must have acted promptly. He however, noted that no specific time limit was set in the said decision. Emphasising on the question of time, he referred a decision by the Court of Appeal rendered in the case of Emma Bayo vs. The Minister for Labour and Youths Development & Others (Civil Appeal 79 of 2012) [2013] TZCA 190 (23 March 2013) which set the time limit to 6 months. He further contended that in 2014, vide The Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Page 4 of 12 Review Procedure and Fees) Rules GN. No. 324 of 2014, the time limit was set under Rule 6 of the said rules to be 6 months. In consideration of the legal position, the learned State attorney challenged the applicant’s application for not adhering to the settled time limitation. He argued so taking into account the fact that the applicant intends to challenge a decision made on 26.06.2023 while the application at hand was filed on 15.03.2024. arguing further, he contended that even if time is computed from 11.09.2023 when the applicant was informed of the decision, still counting from 12.09.2023 to 15.03.2023 it is a span of 6 months and 3 days. Mr. Marco emphasized that the question of time limitation is so fundamental and cannot not be objectively overlooked. Citing the case of Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021] TZCA 202 (17 May 2021), he contended further that the applicant had no room to circumvent the limitation web under Rule 6 of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules. He maintained that the application is time barred and subject to be struck out. Rejoining, Mr. Yakubu sought refuge in the overriding objective principle. He contended that this Court being a body responsible for dispensation of justice should do away with legal technicalities intended to impede dispensation of justice. In support of his contention, he referred to Article 107A (2) (e) of the Constitution of Page 5 of 12 the United Republic of Tanzania, 1977. He was of the view that the application should be allowed so that the applicant’s claims would be dealt with by this court on merit. That, if not granted, the applicant’s rights would not be determined. Mr. Yakubu reiterated his argument that the applicant has no alternative efficacious remedy against the dismissal order issued by the President as the same was a final decision. He alleged that the if the application for judicial review is not granted then the applicant would be denied the right to be heard, hence the violation of her constitutional rights and principles of natural justice. He maintained his prayers for the application to be granted. I have considered the rival submissions of both parties’ counsels. This being an application for leave to file prerogative orders, the prerequisites of the same are regulated under Rule 5 and 6 of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules. Indeed, prior to the enactment of the Judicial Review Rules (GN 324 of 2014), the prerequisites for the application of leave to be granted were well laid out in the case of Emma Bayo vs. The Minister for Labour and Youths Development & Others (supra) whereby the Court stated: “It is at the stage of 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 of 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 of the Page 6 of 12 decision of 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.” From the foregoing, it is evident that in granting leave to file an application for prerogative orders, the applicant ought to show that she has an arguable case, has sufficient interest in the main application and the application ought to be filed within six months. The time limitation for making the application is set under Rule 6 of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, which states: “The leave to apply for judicial review shall not be granted unless the application for leave is made within six months after the date of the proceedings, act or omission to which the application for leave relates.” Mr. Marco brough it to the Court’s attention that this matter has been preferred way past the six months from when the decision of the President of the United Republic of Tanzania, to which the applicant intends to challenge, was made. As sworn in paragraph 4 of the applicant’s supporting affidavit and as seen in the relevant letter communicating the decision of the President, the decision was made on 26.06.2023. Under paragraph 5 she alleged that the decision was communicated to her on 11.09.2023. I shall hereunder reproduce the two paragraphs for ease of reference: “4. That, being aggrieved by that termination which arose from the charge which was never communicated to the appellant, she appealed Page 7 of 12 against that decision however her appeal was dismissed and the termination was confirmed. She again appealed to the President of the United Republic of Tanzania nevertheless her appeal was dismissed. The appeal letter dated 26.06.2023, the appeal letter to the President of the United Republic of Tanzania herewith attached and marked "AM 2" for easy of reference. (sic) 5. That the Applicants appeal to the President of the United Republic of Tanzania was filed on 25.11.2022 and determined on 26.06.2023, whereof the same was received/communicated to the Applicant on 11.09.2023. Her determination letter from the president dated 26.06.2023 are herewith attached and marked "AM 3" for easy of reference.” There is neither doubt nor contest that this application was filed on 15.03.2024. According to Section 60 (1) (c) of the Interpretation of Laws Act [Cap 1 R.E 2019], time is computed starting on the next date the decision is issued. In the case at hand, is started on 27.06.2023. Therefore, from 27.06.2023 to15.03.2024 it is more than 8 months. The applicant alleged to have received the letter on 11.09.2023. I have scrutinised her application, particularly “annexture AM3” and found no evidence of her assertion. There is no any endorsement indicating that she received the letter on the alleged date. Nevertheless, even if the time is computed from 11.09.2023 the date she pleads to have received the letter depicting the outcome to her appeal to the President, still this matter appears to have been filed out of time. The matter appears to have been filed after the expiry of 6 months and 2 days. That Page 8 of 12 renders a delay of 2 days. The law is trite that a delay of even a single day suffices to render a matter time barred. The applicant of course did not discuss her omission to file on time, in the alternative her counsel argued that limitation of time should be discarded by the Court for being a mere technicality. That, the same should not be allowed to stand on the way of justice. His arguments were aligned with the provision of Article 107A (2) (e) of the Constitution of the United Republic of Tanzania, 1977, which requires courts to dispense with technicalities and adjudicate matters on merit. Courts can only enjoy the jurisdiction conferred upon them. In the same vein, it is imperative to note that time limitation is a matter of jurisdiction. In that regard, matters of time limitation cannot be treated as mere technicality. This was well emphasized by the Court of Appeal in Sarbjit Singh Bharya & Another vs. Nic Bank Tanzania Ltd & Another (Civil Appeal 94 of 2017) [2021] TZCA 212 (25 May 2021) whereby the Court stated: “In this regard, we wish to emphasize that the issue of time limitation is not a technicality which can be glossed over as it involves the jurisdiction of the court to entertain the matter. Besides that, the law of limitation is a creature of statute which is geared towards regulating litigants to abide to the time limits set by the law in bringing up their cases. Otherwise, leaving the litigants free to bring their cases when they want.” Page 9 of 12 See also; Monica Alex vs. Serengeti District Council (Civil Appeal No. 306 of 2021) [2024] TZCA 283 (30 April 2024) and CRDB Bank PLC vs. Lusekelo Mwakapala (Civil Appeal No. 143 of 2021) [2023] TZCA 17637 (22 September 2023); Muse Zongori Kisere vs. Richard Kisika Mugendi & Others (Civil Application 244 of 2019) [2022] TZCA 640 (18 October 2022) and; Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni (supra). As adjudged in the above cited cases, the question of time limitation is a matter of jurisdiction. There is no doubt that this matter was well preferred out of the six (6) months prescribed in the statute. The applicant neither bothered to file the matter in time nor to seek extension of time prior to filing of the matter in court. In fact, it appears that it was well within her knowledge that the application was time barred. This is seen under paragraph 8 of her supporting affidavit where she stated that it was in the interest of justice that statutory notice to the respondent be waived. The paragraph reads: “8. That the prescribed 6 months for judicial review is ending on 11th March 2024, it is therefore in the interest of justice that the statutory notice be waived as its expiration date will render an application for judicial review to be filled out of the prescribed time limit.” I am aware that Article 107A of the Constitution of The United Republic of Tanzania, 1977 direct courts not to be bound by technicalities. However, the requirement is not meant to circumvent mandatory procedures of the law. The interpretation of Article 107A Page 10 of 12 (2) of the Constitution was well considered in the case of Zuberi Mussa vs. Shinyanga Town Council (Civil Application 100 of 2004) [2007] TZCA 181 (16 March 2007), in which the Court stated: “… in our decided opinion, article 107A (2) (e) is so couched that in itself it is both conclusive and exclusive of any opposite interpretation. A purposive interpretation makes it plain that it should be taken as a guideline for court action and not as an iron clad rule which bars the courts from taking cognizance of salutary rules of procedure which when properly employed help to enhance the quality of justice delivered. It recognizes the importance of such rules in the orderly and predictable administration of justice. The courts are enjoined by it to administer justice according to law only without being unduly constrained by rules of procedure and/or technical requirements. The word 'unduly' here should only be taken to mean "more than is right or reasonable; excessively or wrongfully" See also, Millicent Mrema vs. ZANTEL (Civil Appeal No289 of 2020) 2023 TZCA 17466 (30 June 2023. In the foregoing observation, this Court cannot ignore the question of time limitation. The expiration of the 6 months’ time renders the application clearly time barred thereby striping off this Court its jurisdiction to grant it. This point alone suffices to dispose of the application. In that respect, the rest of the factors shall not be considered. Before penning down, I wish to address Mr. Marco’s stance that the appropriate remedy is for this matter to be struck out. I am not at Page 11 of 12 one with him. Though the provisions of the Law Reforms (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules are silent on the effect of an application preferred out of time, the same clearly provides for six months’ time limitation. Since the requirement is mandatory affecting the merit of this application, the effect is for this matter to be dismissed. This is in the spirit of the provisions of Section 3 of the Law of Limitation Act, Cap 89 R.E. 2019 which requires a matter filed out of time to be dismissed. In the circumstances, the application is hereby dismissed. Considering that the application concerns labour rights, I make no orders as to costs. Dated and delivered at Moshi on this 24th day of July, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 12 of 12