20071101 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM ------------------------ CIVIL APPLICATION NO. 98 OF 2004. ;VALUSTAN TESHA & 3 OTHERS ..... APPLICANTS VERSUS THE ATTORNEY GENERAL & ANOTHER ... RESPONDENTS Date of last Order: 16/10/2007 Date of Ruling: 01/11/2007 RULING Mlay, J. The applicants through the services of BARNABAS LUGUWA Advocate, filed an application by Chamber Summons, Under Section 2 (2) of the · Judicature and Application of the Laws Ordinance Cap 534 and Section 1 7 A of the .Law Reform (Fatal Accidents) and Miscellaneous Provisions) Ordinance Cap 360. The application which was filed on 6/10/2004, is supported by four affidavits sworn by each of the four applicants, and accompanied by a statement, · verified by all the four applicants. According to the Chamber Summons, the applicants are seeking the following orders: -l 1. This Honourable Court may be pleased to grant the applicants leave to file an application for orders of certiorari and Mandamus against the decision of erasing the names of the applicants_ from the government pay- roll of the treasury by the 1 st respondent. 2. Costs to follow the event. The above orders are sought against the DISTRICT EXECUTIVE DIRECTOR OF BAGAMOYO DISTRICT COUNCIL, 18 T Respondent and the Hon. ATTORNEY GENERAL,. the 2 nd Respondent. The 2 nd Respondent gave notice of preliminary objection on points of law, to the effect that:- 1. The application is time barred. 2. The application is misconceived. The 2 nd Respondent is not the person responsible for doing what is being challenged. 3. The application is defective for failure to annex a copy of the challenged decision. 4. The application is incurably defective in that there is variance between the orders sought in the Chamber summons and those sough in are statement. 5. The application is misconceived on the basis that:- a) The matter being challenged is contractual. The application is challenging something based on a contract of employment. 2 b) The applicants have not exhausted all the administrative and other remedies available to therein before resorting to application for prerogative orders. The record of the proceedings shows that when the application came up before my brother Mziray, J on 10/11/2004, the 1 st Respondent was represented by Mr. LUCIFER SANGA who asked for and was granted leave to file a counter affidavit. The counter affidavit was ordered to be filed by 1/12/2004. On 1/12/2004 the 1 st Respondent was again represented by Mr. Lucifer Sanga while Mr. Malaba State Attorney represented the 2 nd Respondent. By this date the 1 st Respondent had not filed a counter affidavit as previously ordered. Instead, Mr. Sanga informed the court that he was "to communicate with the 2 nd Respondent on now to prepare our counter affidavit". He therefore asked for an adjournment while Mr. Mallaba asked for leave to file a counter affidavit. The court ordered the hearing to take place on 17/1/2005 and the 1 st and 2 nd Respondents to file their counter affidavits by 10/12/2004. neither the 1 st nor the 2 nd Respondent filed any counter - affidavit. Instead, on 7/2/2004 the 2 nd Respondent filed the NOTICE OF PRELIMINARY OBJECTIONS reproduced above. Meanwhile, the application did not come up for hearing on 17/1/2005 as previously 3 ordered and the matter was re assigned to me and the hearing of the Preliminary objection was set to take place on 16/8/2003. On the hearing date, Ms Mrema appeared for the 2 nd Respondent and upon information from Mr. Luguwa's clerk who was present, Ms Mrema held brief for Mr. Luguwa. The hearing was adjourned to 8/11/2005. On the hearing date, neither applicant or their advocate Mr. Luguwa appeared and Ms Otaru learned State Attorney representing the Respondents, prayed that the preliminary objection be argued by way of written submissions, and the court granted the prayer and set at a schedule for the filing of written submissions. The respondents were ordered to file by 23/11/2005, Applicants to reply by 7/12/2003 and any rejoinder to be filed by 14/12/2005. the ruling was to be on notice. The second Respondent filed submissions on 23/11/2005 but the Applicants counsel has neither filed any submissions nor appeared or made any effort to persue the application up to the time this ruling is being written. This ruling is therefore only based on the submissions filed by the 2nd Respondent. Before considering the preliminary objections on merit, it will be helpful to revisit the decision in the case of MUKISA BISCUIT MANUFACTURING CO LTD VS WESTEND DISTRIBUTORS LTD 1969 EA 696, on what a preliminary objection is. 4 The court said, "a preliminary objection consists of a point of law which has been pleaded or which arises by clear complication, and which if argued as a preliminary point may disposed of the suit". The court further stated: A preliminary objection in the nature of what used to be a demurer. It raises a pure point of law which is argued an the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercised of judicial discretion". Armed with the above principles as to what constitutes a preliminary objection on a point of law, I have no hesitation in finding that grounds 2 to 5 as set out in the Notice of Preliminary objection, do not qualify. Secondly, grounds 2 and 5 (b), are matters which can only be raised and considered in determining whether on not leave should be granted. Grounds 2, 3, 4 and 5 of the preliminary objection are accordingly dismissed. 5 We are left with the 1 st ground which is, that the Application is time barred. Section 1 7 (A) Cap 360 which is now section 19 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310, require that applications under that section, "be made within six months or such shorter period as may be prescribed after the act or omission to which the application for leave relates''. In the preliminary objection it is claimed that the present application has been filed out of time, that is after six months. In the written submissions, it has been contended that under Paragraph 8 of the Applicants affidavits and the letter dated 28/3/2004 attached thereto, it is indicated that the Applicants were paid only up to February 2004 and that the [claims of unpaid salaries] arise from March 2004. The 2 nd Respondent has argued that even if the period of six months is counted from 28 th March 2004, the period of limitation came to the end by 29 th September, 2004. It is submitted therefore that the application which was filed on 6/10/2004 was filed about 10 days after the six months period had expired. Citing the case of DAR ES SALAAM MOTOR TRANSPORT CO. LTD VS THE TRANSPORT LICENSING AUTHORITY OF TANGANYIKA AND ANOTHER [1959] EA 403 the 2 nd Respondent submitted that this application is time barred and on this grounds alone, it be dismissed, with costs. 6 Upon scrutiny of all the four affidavits, "the act or omission for which the application for leave relates", is· the same act or omission by the 1 st Respondent, for all the four applicants. The said act or om1ss1on appears 1n paragraphs 5,6 and 8 of each affidavit and it is as follows: "5 That sometimes in February, 2004 one Peter Kitunde, the District Executive Director of Bagamoyo District Council for the reasons best known to himself and while I was still serving in his District Council went to the office of the treasury of the United Republic of Tanzania and reported that I ought to be removed from the Government pay-roll, a request which was complied with by the treasury. 6. That I enquired from the salaries department about the said problem and I was unformed that due to the fact that the said Director is the person in authority their every request he makes is normally complied with and cannot be changed unless another order is made to the contrary. 8. That pursuant to the said act I have been farced to go without salaries fro the whole period from March 2004 todate and this 7 has caused one to have the life · of a pamper (sic) without subsistence (sic) something which is giving one an untold torture of handling the family". Though worded slightly differently the two grounds deponed in paragraphs 5 and 8 of what appear to be boiler plate affidavits of the 4 applicants, the same grounds are reflected in paragraphs 2 and 4 of the statement. The prayer or relief sought in the Chamber summons is for the applicant to be granted "leave to file an application for orders of Certiorari and Mandamus against the decision of erasing the names of the applicants from the government pay- roll of the treasury by the 1 st Respondent". From what has been deponed in paragraphs 5,6 and 8 of the affidavits, the act or omission complained of, is the alleged report of the 1 st Respondent to the Treasury that the names of the applicants be removed from the Government pay-roll. The act or omission is alleged to have taken place "sometimes in February, 2004". The applicants did not state when they became aware of the act complained of. Since the act complained of took place "sometimes in February 2004", in the absence of evidence to the contrary, time to file an application for leave to apply for the orders of certiorari and mandamus, started to run from "sometimes in February 8 2004". That being the position, if the last day of February 2004, is taken as a starting point, the period of six months ran out an 31 st August, 2004. This application which was filed on 6/10/2004 would therefore be our one month out of time. If the applicants became aware of the said act at the end of March 2004 when they did not receive their monthly salary for that month, six months from the 31 st of March 2004, would have run out by 31/9/2004 and the application filed on 6/10/2004, would still be out of time by' six (6) days. Since the act or omission to which the application relates is alleged to have taken place "sometimes in February 2004" and it has not been alleged that the applicants became aware of the act at any time later than in February 2004, and even if it is assumed that they became aware of the act at the end of March 2004 when they were not paid their salaries, which ever of the two periods is taken into consideration, this application filed on 6/10/2004, was filed out of time. The application having been filed out of time it is accordingly dismissed. As the preliminary objection succeeded only in part, I make no order as to costs. J.I. 9 JUDGE. Delivered in the presence of Mbuya State Attorney and in the absence of the Applicants having been notified, this 1st day of November 2007. ~~ JUDGE. 1/11/2007 Words: 1,764