Rebecca Emmanuel Ruling 1

Page 1 of 10

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA MISCELLANEOUS CAUSE NO. 17756 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS

OF MANDAMUS AND CERTIORARI IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, [ CAP. 310 R.E. 2019];

AND

IN THE MATTER TO CHALLENGE THE TERMINATION OF SERVICE OF WP 7333 CPL REBECCA EMMANUEL WAMBURA ON 01 MARCH 2024 AS BEING ILLEGAL, ARBITRARY, UNFAIR AND IN VIOLATION OF THE CONSTITUTION OF THE UNITED REPUBLIC OF TANZANIA OF 1977 ASA

AMENDED FROM TIME TO TIME

BETWEEN WP 7333 CPL REBECCA EMMANUEL……………………………………APPLICANT AND INSPECTOR GENERAL OF POLICE.......................................1ST RESPONDENT THE ATTORNEY GENERAL……………………………………….2ND RESPONDENT

RULING Date of last Order and Ruling: 27/08/2024 MWAKAPEJE, J.: The applicant herein, Rebecca Emmanuel, under Rules 5(1)(2),(3), (4),(5) and 7(1),(2),(5) of the Law Reform (Fatal Accidents and Page 2 of 10 Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules and sections 18(1) and 19(3) of the Law Reform Fatal Accidents (Miscellaneous Provisions) Act, Cap 310 T.R. 2019, lodged this application in this court through chamber summons supported by her affidavit seeking the following orders: 1. That this Honorable Court be pleased to grant leave to the applicant to file an application for judicial review to seek orders of Certiorari and Mandamus to challenge the termination of service of WP 7333 CPL REBECCA EMMANUEL WAMBURA on 01st March 2024 as being arbitrary, unfair and in violation of the constitution of the United Republic of Tanzania of 1977, as amended from time to time.

2. That the costs of this application be on the cause.

3. That the following are the orders intended to be sought by the applicant in the main application for judicial review: (a) That an order of certiorari to quash and annul the decision made by the Inspector General of Police (IGP) made on 1st March 2024 to terminate the service of WP 7333 CPL REBECCA EMMANUEL WAMBURA on the grounds that: - (i) THAT there are allegations of violations of fundamental human rights and laws in termination of service of WP 7333 CPL REBECCA EMMANUEL WAMBURA by the First Respondent, i.e. Inspector General of Police (IGP). (ii) THAT the termination of service of WP 7333 CPL REBECCA EMMANUEL WAMBURA is in contravention of the fundamental right of being heard. (b) That an order of mandamus to compel the First Respondent to reinstate WP 7333 CPL REBECCA EMMANUEL WAMBURA in service of Tanzania Police Force on the grounds that: - Page 3 of 10 (i) THAT there are allegations of violations of fundamental human rights and laws in termination of service of WP 7333 CPL REBECCA EMMANUEL WAMBURA by the First Respondent, i.e. Inspector General of Police (IGP). (ii) THAT the termination of service of WP 7333 CPL REBECCA EMMANUEL WAMBURA is in contravention of the fundamental right of being heard. The respondents submitted a joint counter affidavit and statement in response, wherein they contested the assertions made by the applicant in the affidavit accompanying this

application. The respondents further stated that the Applicant was duly informed of the charge against her and that she was questioned. In a letter dated 4 July 2023, which is one of the annexures annexed as "REBECCA," the Applicant acknowledges that the committee (task force) informed her of the charge and that she was interrogated even though she was allowed to draft a defence statement. Additionally, the respondents averred that the applicant was notified and appeared before the disciplinary and admitted that she was supplied with the disciplinary proceedings through her letter dated 4th of July 2023. When the application was called for the hearing, the applicant was represented by Mr Kulwa Simon, learned advocate, while both respondents were represented by Mr Allen Mbuya, learned State Attorney. In his submission, Mr Samson urged the court to consider three conditions for granting leave for the judicial review application: the Page 4 of 10 presence of an arguable case, the requirement that the application falls within a six-month timeframe, and the demonstration of sufficient interest by the applicant. To support the first condition, Mr Samson referenced paragraphs 4, 5, 6, 9, 10, and 11 of the applicant’s affidavit, which detailed that the applicant was informally charged, lacked formal notification, was not summoned to disciplinary proceedings, and was terminated without

a fair hearing or the opportunity to appeal. He argued that these actions collectively represented a denial of the right to be heard and adequately prepare a defence. Mr Samson cited a letter from the Geita Regional Police Commander’s Office dated 20/5/2023 terminating the applicant's employment and an appeal letter dated 01/03/2024 that upheld the decision. He noted that these letters did not specify the alleged offences and contained inconsistent reasons for dismissal. He stated that the first letter cited dismissal for disgrace, while the second attributed the dismissal to engaging in illegal activities. Additionally, he mentioned that the applicant's statement highlighted violations of her right to a fair hearing, procedural deficiencies, and the absence of due process. Given these circumstances, Mr. Samson argued that the case was clearly debatable. He also noted that the applicant had been acquitted in a related criminal case and requested the court to take judicial notice of this. Page 5 of 10 Regarding the second condition, Mr Samson stated that the application fell within the prescribed six-month period, noting that the appellate decision was issued on 1/3/2024, and the application was lodged on 3/7/2024, well within the stipulated timeframe. Concerning the third condition, which assesses the applicant's stake in pursuing the main application, Mr. Samson asserted that

the court has mandated proof of the applicant's employment status with the terminating authority. He argued that the applicant's interest in pursuing this application was evident, as she expressed dissatisfaction with the termination decision affecting her livelihood and dependents. To bolster his arguments, Mr Samson cited the case of Engelbert Lucas Chelele vs Police Force, Immigration and Prison Service Commission and 3 Others (Misc. Civil Cause 11 of 2022) [2022] TZHC 10263 (23 June 2022), along with references to Emma Bayo vs The Minister for Labour and Youths Development & Others (Civil Appeal 79 of 2012) [2013] TZCA 190 (23 March 2013), and the case of Rabson Mosha & Others vs The Inspector General of Police & Another (Misc. Cause No. 6575 of 2024) [2024] TZHC 1357 (9 April 2024). He noted that the Emma Bayo case outlined the criteria the High Court should consider for leave applications. Page 6 of 10 Mr Samson concluded by stating that the applicant had duly satisfied the requisite conditions for granting leave for judicial review. He emphasized that the respondents had not contested the grounds posited by the applicant and, hence, implored the court to grant the application with costs. Mr Mbuya, on the other hand, responded by stating that the application was brought in accordance with Rule 5 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial

Review Procedure and Fees) Rules, 2014, which mandates that prior to a judicial review application, the applicant must first seek leave. He noted that the primary purpose of seeking leave was to screen and ascertain the applicant's adherence to the conditions necessary for granting leave to file the substantive application. Mr Mbuya further mentioned that there are established principles that must be observed for leave to be granted, as elucidated in the case of Bartazary Bosco Mahai vs Tanganyika Law Society & Another (Misc. Civil Cause No. 27673 of 2023) [2024] TZHC 1348 (29 March 2024), particularly on page 7, which outlines the conditions to be fulfilled. These conditions include demonstrating sufficient interest, presenting a debatable case, having a decision on the contested matter, exhausting local remedies, and filing the application within six months from the date of the impugned decision. He concluded Page 7 of 10 by stating that upon scrutinizing the current application, it was evident that all five conditions had been met by the applicant. Consequently, given the fulfilment of these conditions, the application for leave could be granted. From the submissions, the key issue at hand pertains to the determination of the merits of the application. It is common knowledge, as submitted by the learned counsels, that in order for the application for leave to file a judicial

review to be approved, the applicant must satisfy the legal prerequisites by demonstrating that the application was submitted within six (6) months from the date of the decision being challenged, must possess adequate standing (locus standi), and must present a case that is subject to trial. These prerequisites are delineated in section 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 R.E. 2019, Rule 6 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 and in case law. In the case of Emma Bayo vs The Minister for Labour and Youths Development & Others (supra), it was explicitly stated that: “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 Page 8 of 10 applicant is within the six months limitation period within which to seek a judicial review of the 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. These are the preliminary matters which the High Court sitting to determine the appellant's application for leave should have considered

while exercising its judicial discretion to either grant or not to grant leave to the applicant/appellant herein.” [Emphasis supplied] In the present application, the purported decision by the 2nd respondent was rendered on 1 March 2024, subsequent to her unsuccessful appeal to the IGP. The applicant lodged this application on 24 July 2024. Therefore, it has been only four months, from March 2024 to July 2024. Consequently, considering that the learned State Attorney was prudent enough to concede, the first condition requisite for the applicant to prevail in the application for leave to file a review has been satisfied, Secondly, the applicant must demonstrate that she has sufficient interest and that there is an arguable case. In the application at hand, the applicant was a policewoman dismissed from the force in disgrace, according to her termination letters dated 22/05/2023 and an appeal letter dated 01/03/2024. Therefore, the applicant has demonstrated sufficient interest in the matter, and hence, she has locus standi to do so, which fact was also supported by the learned State Attorney. Page 9 of 10 Thirdly, concerning the establishment of a prima facie case, the applicant expressed apprehension regarding the infringement of her right to a fair hearing. She pointed out that the 2nd respondent constituted a committee, investigated, produced a report, and subsequently issued

a dismissal letter without affording her an opportunity to present her perspective. This contention, previously disputed in the respondent’s counter affidavit, was not contested by Mr Mbuya and was endorsed as it complied with the requirements stipulated by both the statute and case law. Now, upon reviewing the applicant’s account and submissions by the learned counsels and guided by the case of Emma Bayo vs The Minister for Labour and Youths Development & Others (supra), it is clear that in the present application, there is an arguable case regarding violation of the right to be heard that may be considered by the court when the applicant is granted an opportunity to address it in the main application for judicial review. Consequently, I determine and affirm that the application has merits. Therefore, leave to file an application for orders of certiorari and mandamus is hereby granted. The applicant has fourteen (14) days from Page 10 of 10 the date of this order to file the application for judicial review. In the circumstances, I make no order as to costs. It is so ordered. DATED at GEITA this 27th day of August 2024. G.V. MWAKAPEJE

JUDGE This Ruling is delivered this 27th day of August 2024 in the presence of Mr Kulwa Samson, learned to advocate for the Applicant, and Mr Allen Mbuya, learned State attorney for both Respondents. The Applicant is also present. G.V. MWAKAPEJE

JUDGE