TANZANIA TEACHERS COMMISSION v AMINA APPLICATION

IN THE HIGH COURT OF TANZANIA

DODOMA SUB REGISTRY

AT DODOMA MISCELLANEOUS CIVIL APPLICATION NO. 15535/2024 (Arising from the decision of the High Court Dodoma Sub-Registry in Misc. Civil Application No. 45 of 2022)

BETWEEN TEACHERS' SERVICE COMMISSION……………………...……………1ST APPLICANT THE ATTORNEY GENERAL………………………………….……………2ND APPLICANT

VERSUS AMINA SWALEHE KIKWATA………………………………..…………….RESPONDENT

RULING Date of last Order: 05/09/2024 Date of the Ruling: 25/09/2024 LONGOPA, J.: This is an application for extension of time to file an application to file a review against the decision of the High Court of Tanzania at Dodoma Sub Registry which withdrew the application that was time barred. The respondent had file Miscellaneous Civil Application No. 45 of 2024 against the applicants. Being aggrieved by the decision of the High Court to mark the application for judicial review marked withdrawn, the applicants desire to 1|Page file an application for review before the same Court. However, time for so doing has lapsed thus this application. On 1st July 2024, the applicants filed an application for the following orders, namely: 1. That, this honorable Court be pleased to extend time for the Applicants to institute a review of the ruling of this Court in Misc. Application No. 45/2022 dated 1 November, 2024 by Suleiman J.

2. That, this honorable Court be pleased to order any other order it deems fit and just to grant in relation to the order sought in (1) above.

3. Cost of this suit be provided for. The Application was supported by affidavit of one Kumbukeni Kondo, State Attorney. The affidavit avers that:- 1. THAT, I am the State Attorney at the Office of Solicitor General duly instructed to handle this matter herein, and I am well acquainted and conversant with the facts I am about to depose herein. 2|Page 2. THAT, the Respondent herein filed a Miscellaneous Civil Application No. 45 of 2022 on 6th September, 2022 applying for prerogative orders of certiorari and mandamus against termination of her employment, 3. THAT, on 6th October, 2022, the Applicants herein filed their counter affidavit, statement of reply and the notice of preliminary objections raising three grounds of preliminary objections, among them, was to the effect that the application for judicial review was time barred.

4. THAT, on 16th November, 2022 when the matter was scheduled for hearing of preliminary objections before Hon. Suleiman, J. the Respondent conceded all the raised preliminary objections and prayed the matter to be withdrawn without costs.

5. THAT, the Applicant contested the prayers to withdraw as the remedy for time barred is dismissal as a result the honorable Judge dismissed the Misc. Application 3|Page No. 45/2022 and typed ruling was to be supplied thereafter.

6. THAT, on 22nd April, 2024 the Applicants were served with Misc. Application No. 7381 of 2024 by Respondent herein seeking for enlargement of time to file Application for Prerogative order of certiorari and mandamus attaching the ruling of this Court dated 16th November, 2022 by Suleiman, J in Misc. Application No. 45 of 2022.

7. THAT, upon looking to the ruling is where Applicants herein realized that there is a serious error on the face of ruling whereby the judge marked the matter withdrawn instead of dismissing it. Copy of the ruling in Misc. Application No. 45/2022 dated 16th November, 2024 by Suleiman, J is hereby attached to form part of this Affidavit.

8. THAT, the only remedy under the circumstance is review, which we are out of time to file the same as we were unaware of the said typed ruling until on 22nd 4|Page April, 2024 when we were served with the application by the Respondent.

9. THAT, in the circumstances we filed this application before this Honourable Court praying this court to extend time for the Applicants to institute a review of the Ruling in the Misc. Application No. 45/2022 dated 16th November, 2024 by Suleiman, J because it contains an error which results to miscarriage of justice. On 5th September the parties appeared before me for oral hearing of the application. The applicant enjoyed legal services of Ms. Agnes Makuba, learned State Attorney while the respondent appeared in person fending for herself. The learned State Attorney argued that the application before this Court is for extension to file an application for review against the decision of this Court in Miscellaneous Application No 45 of 2022 that was determined on 16th November 2023 by Hon Judge Suleiman. It is preferred under Section 14(1) of the Law of Limitation Act, Cap 89 5|Page RE.2019. The affidavit in support of the application was adopted to form part of the submission. It was stated that In Miscellaneous Application No. 45 of 2023, the respondent in this application was the applicant and the instant applicant who was the respondent who raised a preliminary objection on point of law that the matter had been preferred out of time as evidenced by the ruling in page 2 of the decision that is intended to be challenged. According to the applicant, the only remedy for a matter that is preferred out of time is dismissal of the same as per section 3(1) of the Law of Limitation Act, Cap 89 R.E.

2019. It is on record that the applicant in Miscellaneous Application No 45 of 2022 conceded to the preliminary objection that the application was preferred out of time. However, the applicant argues that the decision of the Court in that application in respect to preliminary objection in Miscellaneous Application No 45 of 2022 was surprisingly not in accordance with the law. It was stated that despite concession by the then applicant, the court marked the same withdrawn as stated in the Ruling allegedly under section 3(1) of the Law of Limitation Act, Cap 89 R.E. 2019. 6|Page In the applicant’s view, withdrawal of the matter that was ordered by the court but the same was not proper order in accordance with the law as the effect was only dismissal of the application. It was prayer of the applicant that this application be allowed as there is illegality that this court should correct as it was decided in the case of Attorney General versus Raksha Gadhvi and Others, Civil Application No 147/1 of 2022, at pages 8-9, the Court of Appeal stated that illegality constitute a sufficient cause for extension of time. It stated further that the extent of delay is not an issue when it comes to the matter where illegality is to be considered. Further, the withdrawal of the case is only done by the applicant/ plaintiff in a case and not by the Court. The court can only strike out, dismiss or

reject an application or case but not withdraw unless it was the party who instituted the application or case who applies to do so. It was concluded that on strengths of these submissions, it was the applicant’s prayer that the application be granted and the time extended for the applicant to file for review of the decision of the Miscellaneous Application No. 45 of 2022. 7|Page On the other hand, the respondent was of the view that it is the court's decision that marked the matter is withdrawn. The respondent being a lay person had nothing against the decision as she is of the view that the decision was correct as the court did not limit the respondent from filing a new application for prerogative orders. Also, the respondent argued that she is a citizen of this country thus the court should be considerate as the application for prerogative orders against the decision of the Government authorities to terminate her employment was done on flimsy reasons that should not be allowed to stand. Having heard the parties on the submission in support and opposition of the application, it is pertinent for this Court to determine whether this application is merited or otherwise. I shall analyse the application in light of the legal principles governing application for extension of time. Generally, extension of time involves exercise of discretional powers of the Court thus it is invoked

in circumstances were sufficient cause is established. 8|Page Sufficient cause which may be reasons for the extension of time vary. The criteria for enlargement of time to file notice to appeal or appeal have been well articulated by the Court of Appeal in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) (TANZLII), at pages 6-7, where the Court set the following guidelines in respect of extension of time: (a) the Applicant must account for all the period of delay. (b) the delay should not be inordinate. (c) the Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the Court feels that there are sufficient reasons such as existence of a point of law of sufficient importance, such as illegality of the decision ought to be challenged. As a general rule, it appears that an applicant must be able to account and demonstrate reasons for failure to appeal timely for each and every day of delay. Providing fully accountability on each of the days of delays is what amount to sufficient cause. However, there is what may be 9|Page deemed as existence of point of law of sufficient importance, including illegality. The illegality is among the aspects considered to warrant a

sufficient cause in extension of time. This is the principle in the case of Tanduga Mustafa Nyakimwe & Others vs Kigoma/Ujiji Municipal Council & Another (Civil Application No. 932 of 2023) [2024] TZCA 507 (27 June 2024) (TANZLII), at pages 10-11, the Court of Appeal of Tanzania stated that: It is settled that the Court may condone lapse of time and permit the applicants to lodge an appeal only upon disclosure of sufficient reason and in some exceptional cases, when the intended appeal bears reasonable cause including illegality apparent from the face of the record and is of public interest to be corrected. In its various decisions, the Court has enumerated possible reasons and factors which may be brought before it for consideration. Among those factors are; reasons assigned for the delay which seem to have impeded the applicants 10 | P a g e from their timely pursuit; length of the delay which should not be inordinate depending on the surrounding circumstance which varies on case to-case basis; diligence and promptness of the parties throughout the journey of litigation; illegality of the impugned decision as the Court may appreciate and any other factor which for the purpose of justice may exhibit the need for extension of time. In the case of Attorney General vs Raksha Gadhvi & Others (Civil Application No. 147/01 of 2022) [2024] TZCA 10 (30 January 2024) (TANZLII), at

pages 6-7, the Court of Appeal stated that: The position of the law is settled that an issue of illegality of the impugned decision constitutes good cause for extension of time. In Principal Secretary Ministry of Defence and National Service v. Devram P. Valambia [1992] TLR 387 the Court held: “In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty even if it 11 | P a g e means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record right." In the instant application, we have noted that the decision of the Court stated that the case was withdrawn. The applicant considers that such order demonstrates illegality of the decision of the Court as the available remedy for preferring a matter beyond time permitted by the law is dismissal of the same. It can be reckoned from Paragraphs 7 and 8 of the affidavit in support of the application that it is lucid and emphatic that there is a serious legal infraction that must be corrected by the Court. Such serious legal error is what the applicant has termed as illegality that the court should revisit and correct the same through review. The ruling of the Court in Miscellaneous Civil Application No. 45 of 2022 shows that the application is withdrawn as per Section 3 of the Law of Limitation Act, Cap 89 R.E.

2019. The withdraw order is the one that applicant wishes that this Court to permit them to file an application for 12 | P a g e review out of time as such order is sufficient legal point of importance that amount to sufficient cause. It is prudent that on those circumstances, presence of alleged illegality on the face of the record demonstrates that the applicant deserves some lenience in order for the applicant to ably address the anomaly before the Court. In totality of the events, I am prepared to allow the application for being meritorious. The applicant is hereby granted a total of thirty (30) days from the date of this decision to file an application for review with regard to the decision in Miscellaneous Civil Application No 45 of 2022. No orders as to costs as each party shall cater for its own costs. It is so ordered. DATED at DODOMA this 25th day of September 2024. E.E. LONGOPA

JUDGE 25/09/2024. 13 | P a g e