20060509 TZCA Dar es Salaam

I IN I THE COUR.l' OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 47 OF 2006 THE SIENATE OF THE UNIVERSITY Of' DAR: ES SALA1.AM •••••0••••••••••111111111 ■■■ 1 ■ 11 ■ 111 ■■ 111 ■ 11111111111111111 AP Pl.ICANT 1 VERSUS 1. EDMUND A. MWASAGA 2. BAKARI RASHID 3. MOSES MPUNGU ............................... RESPONDENTS 4. ZAINAB KHALID 5. LUGANE ISSACI< CHITAMA (Application for Stay of Execution from the decision of the 1-iigh Court of Tanzania at Dar es Sala.am) (Mihayo, :1J dated the 27 th day of March, 2006 in !'!lisc. Civil Cause No. 90 of 2001 2.8 April & 9 May 2006 RULING lUBIJVA, J.A.. : This is an application for stay of execution under the provisions of rule 9 (2) (b) of the Court Rules, 1979. The application was brought by way of a certificate of urgency. The Court is being moved for an order that: 2 The execution of the Ruling and Order of the High. Court quashing the decision of the Senate of the University of Dar-es-Salaam and thereby reinstating the Respondents to the University be stayed pending the hearing and determination of the intended appeal. In support of the application is the affidavit sworn by Jonathan Magezi Rwijage, Legal Officer of the University of Dar-es-Salaam. From the facts as laid before me in this application, the matter arises from the decision of the High Court (Mihayo, J.) in Misc. Cause No. 90 of 2001 of ·2th march, 2006. The respondents, Edmund A. Mwasaga and. 4 Others were undergraduates of the University of Dar- es--Salaam. While sitting for examination, it was alleged that the respondents were found with unauthorized material. Consequently, upon recommendation of the Examination Committee, the Senate of the university endorsed the decision to discontinue the respondents from studies. The decision prompted the respondents to seek remedy from the High Court by way of prerogative orders of certiorari. The- application was allowed resulting in the order of certiorari being issued. Consequently, the decision of the Senate of 3 the University of Dar-es-Sala·am of 5.8.1998, ordering the ! • discontinuation of the respondent students was quashed and set I aside. The applicant, the Senate of the University, was dissatisfied, l so notice of appeal against th~ High Court decision was filed. - I Pending the determination of the intended appeal, this application for stay of execution was lodged. I I I j Mr. Mzava, learned couljlsel, from the Tanzania Legal Corporation, appeared in this application for the applicant and Mr. I Magesa, learned counsel, advocattd for the respondents. In support of the application, Mr. Mzava made submissions to the following I i effect On the balance of convenience and common sense, stay of j execution should be granted beca~se the matter involved is of public l interest. If stay of execution is not granted, the University would fail in maintaining academic standardt it would loose its reputation by admitting students without approv~d academic standards contrary to laid down University regulations an6I procedure. There is a procedure I to be followed in reinstating stud~nts who were discontinued from II I studies. If execution is effectedi before the determination of the I 4 I appeal it would amount to taking a short cut in readmitting students I ; to the University. Granting st~y of execution would enable the University authorities to sort out -the I matter in terms of the laid down procedure for the reinstatement of students such as the respondents. I ' The loss which the University wo·uld suffer is not monitary but is in 1 relation to falling academic standa ,-d and reputation of the University. Furthermore, the decision I of High Court, subject of the intended appeal, is legally problernatic. The matter arises from High Court Misc. Cause No. 59 of 1998 in which the prerogative order of I certiorari was granted irregularly. !As the order granted was a nullity, there was nothing valid which cou.ld be vacated or amended. This is • I an important point of law for the determination of the Court of Appeal. Mr. Mzava referred to thj cases of The University of Dar- . I es-Salaam v. Richard Kajuna ~uzo, Civil Application No. 125 of 1993 and Victor Andrea v. Senior DMstrict Magistrate and i Mi,chael John, Civil Application No. 125 of 1993 (both unreported). l 5 Mr. Magesa, strongly opposing the application submitted that ' there is no basis upon which stay: of execution could be granted. He said the guiding principle of bal~nce of convenience and common sense is not applicable in this dase I because the University would I neither be inconvenienced in any lway nor would it incur any loss by reinstating the students, the respondents. I Counsel further submitted I that the question of lowering acc)demic standards at the University would not arise because the studJnts had been cleared by the order I of certiorari. Refusal by the University Senate to reinstate the I students after the court decisio~ amounts to the University not I respecting court decision, Mr. Ma·gesa charged. He also said that I ' I there is no provision in the University I of Dar--es·-Sa!aam Act, 1970 ' which bars students from access tb court seeking remedy after they were discontinued from studies. ~fter all, he said, there are other i past incidents in which students hive been reinstated following court orders. I Mr. Magesa also submitted t~at on the contrary, in this case it ' I . I is the students, the respondents, who are inconvenienced by the long l ' I 6 suspension since 1998. Therefore, he said the balance of convenience tilts in favour of the respondents if stay is not granted. Relying on the cases of Tanzania Cotton Marketing Board (supra) Nicholas Nere lekule'v. Independent Power (T) Ltd. ' 1 and 4 Others (1997) T.LR. 58 he contended that no substantive ' loss has been shown that the applicant, the University, would suffer if stay is not granted. He also strongly urged that there were no prospects of the appeal succeeding because, the claim that proceedings in Misc. Cause No. 59 of 1998 were a nullity has no legal foundation. He pointed out that the same point was raised before the High Court but was rejected. Mr. Magesa also pointed out that unLike the case of Victor Andrea (supra) the proceedings in this case were not rendered a nullity on account of the Attorney General's default in appearance during the proceedings. There is therefore no legal point worth consideration of the Court of Appeal, Mr. Magesa insisted. After effecting the amendment to implead the Attorney General the matter proceeded in the normal manner to finality. I I 7 I Mr. Mages.a went further yp submit that the intended appeal ' 11 i stood no chances of success bec~use as found in the High Court, the I' i question of bias on the part of Prof. Penina Mlarna was beyond 1 Ii question. She p\esided over the Committee which recommended the ·i suspension of the respondents td the Senate which she also chaired : I as well. All in all, Mr. Magesa u11ged that there was no merit in the I application which. should be dismi$sed. ' t I ' 1 1 11 The central issue in this app1ication is whether there are special 1 I '1 I: circumstances upon which the Cqurt could exercise its discretion to ;I 11 grant stay of execution. I desire to deal first with Mr. Mzava's i ' . :1 contention that stay of execut101,n should be granted because the I' i. matter involved is of public intere~t. ' ' That if stay is not granted, the University risks loosing its repu~ation and that it would fail to . I I maintain its standard by admitting students of below the approved 1! I standards. I 8 With respect, I do not accept this contention. The question of I I the students, the respondents, not being of approved standard is I neither relevant nor did it in any iay arise in this case. The students I were not discontinued from studies because they were not of ! approved academic standard. Rather, they were discontinued I because of misconduct when sittir,g for examination. It v-11as alleged that they were found with somei material at the time. I therefore reject Mr. Mzava's contention that if stay of execution is not granted the University would be admittinb students of no proved academic I standard. Next, I shall deal with the lain ground which was canvassed l by Mr. Mzava extensively. He urged that on balance of convenience and common sense the circumstalnces of the case are such that the ' i court should exercise its discretfon to grant stay of execution in I favour of the applicant. As held by this Court in a number of cases - j see for instance, Tanzania Cotton Marketing Board and 1 Nicholas Nere Lekule (supra) one of the factors to be considered - I . in deciding to grant stay of execution is whether irreparable loss I l 9 I would be sustained if stay is no't granted. In this case, it is to be pointed out at once that the los~ involved is not in rnonitary terms. I What is at stake is the implication of granting or otherwise of stay of I execution with regard to the academic I welfare of the University. The crux bf the matter is· that what led to the respondents being discontinued from studies was that the respondents were I found with unauthorized material while sitting for examination. Apparently, this aspect was not dealt with in the High Court. Neither was it alluded to by counsel for bbtl1 parties in this application. What j was extensively dealt with was that there was bias. In that situation, ; I take it that it was not controverted. While counsel are at one with each other on the point that there is laid down procedure for I reinstating students at the University, the issue is on how to strike a balance. That is, on one hand, theI implication of executing the order ' of the court to reinstate the r,espondents who had flouted the I University rules governing examinations. On the other, complying with the court order without creating a precedent for students found ' I floating examination regulations r:esorting to court for reinstatement ; 10 in disregard of the regulations. This, if not properly balanced would not augur well for an academic institution. Possibly, it is because of this apprehension that Mr. Mzava submitted that students of lower I I academic standards would be readmitted. I rejected it on account of I its faulty reasoning. Otherwise, !r agree that the fear of creating a precedent in this regard is real. i In the circumstances, in: view of the uncertainties and implications of immediate execut~on of the High Court order, I think I on balance of convenience and yommon sense, granting of stay of execution would be in the interest of justice. Stay of execution pending the determination of the appeal would give time to the applicant to sort out the position on how to go about the matter after the court order. With the decision of the Senate quashed and set aside, still the recommendation of the Disciplinary Committee remains without a valid approva'I of the Senate. How to proceed I I from there is what is at stake I think. On balance therefore, stay of execution is desirable. 11 Reinstating the respondent students, before the appeal is heard and then in the event the appeal is successful to t1ave them sent away as Mr. Magesa suggested, is, to say the least, even more inconvenient to the students and the University as well. It is better in my view to hold back until the matter is final!y decided one way or the other on appeal wt1en, with certainty, the respondents would either reinstated or not. As said before, in the circumstances, the balance of convenience tilts in favour of granting stay of execution. Furthermore, there is another legal aspect which may well be considered on appeal. On this Mr. Mzava, learned counsel has persistently maintained that the order of the High Court, Msumi, J.K. (as he then was) of 31.7.2001 amending the Chamber Summons was legally irregular. This is so, he said because, the previous proceedings in which the Attorney General was not summoned were, by law, a nullity. There was therefore, nothing in law which could be amended or vacated. He relied on the Court's decision in Victor Andrea (supra). 12 There is no denying the fact that under the law, Section 1.7J\ (1) of the Law Reform (Fatal AcJidents and Miscellaneous Provisions) Ordinance (Cap 360) if the Attorney General is not summoned, the proceedings are rendered a nullity. In Victor Andrea, (supra) this court stated so. In the instant lease, if in the matter before Msumi J.K. in which the prerogative Jder of certiorari was granted, the Attorney General was not summlned, the proceedings were a nullity. I I I In that case, on the face of it, this it seems to me .is a point worth I consideration of the Court. Thk issue is, whether the subsequent I ' proceedings by the High Court v1cating the order granting leave and 'I the amendment of the Chambe~ Summons resulting in the granting I of leave were properly founded ih law. Depending on how this issue is resolved on appeal, the vel decision in which the order of certiorari which quashed the detsion of the Senate, may well have - I no leg on which to stand. That is the aspect for the full Court to consider on appeal. I need not do further in this aspect at this stage. However, for the matter befor~ me I am inclined to think it is sufficient ground warranting thl court's discretion to grant stay of execution. • 13 For these. reasons, I am increasingly inclined to grant the application as prayed. Accordingly, it is ordered that the execution of the order of the High Court in Misc. Civil Cause No. 90 of 2001 of 2ih March, 2006 be stayed pending the determination of the intended appeal. Costs of the application to abide the results of the appeal. D.Z, LUBUVA JUSTICE Of APPEAL (S. A. N. RA) SENIOR · TY REGISTRAR