Jonas Joseph Tilya vs Chief Secretary & Others (Civil Appeal No. 409 of 2023) [2026] TZCA 576 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA, 3.A.. MASHAKA. 3.A. AND NGWEMBE. J.A^ CIVIL APPEAL NO. 409 OF 2023 JONAS JOSEPH T IL Y A ...................................................................APPELLANT VERSUS THE CHIEF SECRETARY ........................................................ 1 st RESPONDENT BOARD OF GOVERNORS INSTITUTE OF SOCIAL WORK ... 2 nd RESPONDENT THE ATTORNEY GENERAL...................................................3 rd RESPONDENT [Appeal from the decision of the High Court of Tanzania, Main Registry at Dar es Salaam] (Monqella. J.1 Dated 15th day of May, 2023 in Miscellaneous Civil Cause No. 11 of 2023 RULING OF THE COURT 5th & 15th May, 2026 NGWEMBE, J.A.: This ruling is a result of the parties' oral submission on the competence of the appeal based on time limitation. Originally, the appellant, Jonas Joseph Tilya was dissatisfied with the decision of the High Court of Tanzania, Dar es Salaam Main Registry (Mongella, J.) in Miscellaneous Civil Cause No. 11 of 2023 for Judicial Review, which was delivered on 15/05/2023. It was the appellant's prayer that the writs of certiorari, mandamus and prohibition be issued against the President's l decision which upheld and confirmed the appellant's termination from employment. The facts which eventually brought the appellant before us, lies a clear background of employer - employee relationship between the appellant and the Board of Governors of the Institute of Social Work (the 2n d respondent). The appellant was employed by the 2n d respondent on 01/07/2014 and by August 2015, he was confirmed as Assistant Lecturer on permanent and pensionable terms. While in service, he was accused of forcing sexual relationship with one of the female student of the course he was teaching, he intimidated to mark her exams unfairly if she refused. A disciplinary charge was preferred against him comprising four counts to wit; failure to perform satisfactorily duties assigned contrary to regulation 42 and para 8 of Part A of the First Schedule to the Public Service Regulations 2003; sexual harassment contrary to regulation 65 (1) and para 6 of Part II of the Third Schedule to the Public Service Regulations 2003; moral turpitude contrary to regulation 42 and para 1 of Part A of the First Schedule to the Public Service Regulations 2003; and contravention of the Code of Ethics and Conduct for the Public Service, Professional Code of Ethics and Conduct or Public Leadership Code of Ethics contrary to regulation 2 42 and para 14 of Part A of the First Schedule to the Public Service Regulations 2003. Having been charged accordingly, he denied all the counts. Consequently, an Inquiry Committee convened on 18/01/2020 and after the hearing, he was found guilty for the first count of failure to perform satisfactorily his duties. The committee recommended appropriate sanction to be reduction of his rank from Assistant Lecturer to Tutorial Assistant for the period of three years commencing from 18/01/2020. The appellant was disgruntled and filed an appeal to the Public Service Commission on several grounds including, denial of right to be heard and right of representation, lack of impartiality and composition of the inquiry committee members. The appeal was determined in his disfavour as the Commission found the appellant was guilty not only for the 1st count, but also on other counts. The verdict of the Commission was to set aside the previous punishment of rank reduction, in lieu thereof, he was dismissed from employment. The appellant's further appeal to the President was likewise fruitless, as on 04/08/2022 the appeal was dismissed and the verdict of the Commission was confirmed. Therefrom, the appellant resorted to Judicial Review as earlier alluded to. 3 Before the High Court, the appellant raised several grounds, including that, the President did not exercise properly its discretionary powers, since the Public Service Commission acted ultra vires by reviving the charges which were not proved. The other grounds were that the right to be heard was contravened and that the 2n d respondent failed to exercise her discretionary powers properly. Thus, prayed to be reinstated to his employment without loss of remuneration. The High Court accepted one of the grounds to be merited, that it was not proper for the Public Service Commission to have formulated a new charge which was not part of the disciplinary proceedings. Otherwise, other complaints were dismissed, which made the whole application for judicial review unsuccessful. This appeal is against that decision of the High Court having three grounds involving interpretation of section 1 (b) of the Public Service Act Cap 298 R.E. 2019 and regulation 60 (2) of the Public Service Regulation 2003; and sufficiency of evidence in the disciplinary proceedings. However, we will deal with the grounds of appeal upon satisfaction on competence of the appeal. The appearance in Court on the hearing date of this appeal, Mr. Isaac Nassor Tasinga, learned advocate represented the appellant, while 4 the respondents were advocated by Ms. Grina Aden, learned Principal State Attorney assisted by Ms. Hosana Mgeni, learned Senior State Attorney and Mr. Victor Joseph Mhana, learned State Attorney. Regarding competence of the appeal, parties were invited to address us first on competence of the appeal, as well as, on the grounds of appeal. The Court reserved the right to determine, first on the competence of the appeal and second on the merit of the appeal when need arise. In arguing on the competence of the appeal, Mr. Tasinga recounted the chronology of events in a nutshell that, the notice of appeal was lodged on 24/05/2023 and on 19/06/2023 they were notified by the Deputy Registrar of the High Court of Tanzania Main Registry to collect the certified copies of the record and the appeal was lodged in Court on 01/08/2023. He admitted that the computation of time from 24/05/2023, the day of lodging the notice of appeal up to 01/08/2023 when the appeal was filed in Court is more than 60 days. However, counting from 19/06/2023 when the appellant was notified by the Registrar that the requested documents were ready for collection to 01/08/2023 when the appeal was lodged in Court, the appeal is timeous. Moreover, he admitted that the certificate of delay was not secured as 5 required by law, but shifted the burden to the Registrar that he was duty bound to issue certificate of delay which he did not. He thus, implored the Court to consider the appeal was lodged in Court within 60 days from the date of notification. To him, even without certificate of delay, reckoning of time would start from the date of notification, hence the appeal is competent. In reply, Ms. Aden, strongly resisted the appellant's argument that the appeal was lodged in Court out of time. She emphasized that counting from the date of lodgement of the notice of appeal on 24/05/2023 to the date of filing the appeal on 01/08/2023 is more than 60 days. According to her, time to appeal must be reckoned from 24/05/2023 when the notice of appeal was lodged and not on the date of notification. Since there is no certificate of delay, the appeal is incompetent and should be struck out. In a brief rejoinder, Mr. Tasinga maintained that the appellant acted diligently, but the Registrar was the one who failed to issue certificate of delay thus, he reiterated his previous prayer that the appeal is competent as it was filed timely. On our part, we appreciate the parties arguments and upon reflection to the record of appeal, it is evident that the impugned 6 decision was delivered by the learned Judge on 15/05/2023. The appellant being dissatisfied, lodged notice of appeal on 24/05/2023 and on the same date he requested for certified copies which was responded by the Registrar on 19/06/2023. All the above were properly done within time. However, the appellant never requested for a certificate of delay which would exclude the period from 24/05/2023 when the appellant requested for certified copies to 19/06/2023 when he was notified that the records were ready for collection. The point of contention is on the reckoning margin, while the appellant believes the time should be counted from 19/06/2023 when he was notified on the readiness of the record for appeal purposes, the learned Principal State Attorney, maintained that in the absence of the certificate of delay, time started to run from 24/05/2023 when the notice of appeal was lodged in Court. On our part, we find no controversy because, all queries are settled by the law. Rule 90 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules) reads: "90.-(1) Subject to the provisions o f Rule 128, an appeal shall be instituted by lodging in the appropriate registry, 7 within sixty days o f the date when the notice o f appeal was lodged with - (a) a memorandum o f appeal in quintuplicate; (b) the record o f appeal in quintuplicate; (c) security for the costs o f the appeal, save that where an application for a copy o f the proceedings in the High Court has been made within thirty days o f the date o f the decision against which it is desired to appeal\ there shall, in computing the tim e within which the appeal is to be instituted be excluded such time as may be certified by the Registrar o f the High Court as having been required for the preparation and delivery o f that copy to the appellant. "(Emphasis provided). The excerpt above provide two important procedural requirements, first, the time of lodging an appeal to the Court is 60 days from the date of notice of appeal; second, exclusion of time spent by the appellant waiting to be notified on the readiness of the certified copies forappeal purposes; and three, the exclusion of time is by certificate ofdelay issued by the Registrar. The question is whether the exclusion of those days by the Registrar is automatic? The law says, the exclusion may be certified by the Registrar of the High Court through a certificate of delay. Certificate of delay is crucial in cases falling under the present circumstance because, even when the appellant is notified about the 8 availability of the certified copies of records, he is still required in law to request and obtain the certificate of delay. We have stressed this stance in a number of our decisions including, The Board of Trustees of the National Social Security Fund v. Kilimanjaro Bazaar Limited [2005] T.L.R 160 and Barclays Bank (T) Limited v. Phylisian Hussein Mcheni (Civil Application No. 176 of 2015) [2016] TZCA 726 (21 January 2016). In the former, we stressed that: 'W e know that the notice o f appeal was file d on the 10.2.2003 and so the appeal had to be instituted within sixty days o f the notice o f appeal. Since, this was not the case, it was essential for the appellant to rely on the exception to Rule 83 (1) which is to the effect that in computing the sixty days, the tim e taken to obtain a copy o f the proceedings from the Registrar shall be excluded as certified by the Registrar... A certificate under Rule 83 (1) o f the Court Rules is a vital document in the process o f instituting an appeal. It comes into play after the norm al period o f sixty days for filing an appeal has expired. We are o f the view that there m ust be strict compliance with the Rule." 9 From the above legal position, it is settled that even when the appellant had acted diligently to request for certified copies in time and duly served the letter to the respondent, and eventually was notified on the availability of the certified records, he cannot benefit the exclusion without such exclusion being certified by the Registrar. The reason is, exclusion of that period of time is within the powers of the Registrar. Without that certificate of delay, even if notification letter is issued, no exclusion of time can be made. We therefore agree with the learned Principal State Attorney, that reckoning of time to appeal runs from the date of lodging notice of appeal. In the instant appeal, the appellant had 60 days to file the intended appeal from 24/05/2023 up to 23/07/2023. No doubt, 23/07/2023 was a Sunday, not a working day, hence, the following first working day which was on Monday 24/07/2023 would have been the last day for the appellant to file the appeal, but this appeal was filed on 01/08/2023, equal to 9 days after expiry of 60 days required by law. We stressed in The Board of Trustees of the National Social Security Fund v. Kilimanjaro Bazaar Limited (supra), that the appellant is obligated to obtain from the Registrar all necessary documents including the certificate of delay if the appeal is out of time. 10 In other words, there is no room to blame the Registrar if the appellant failed to request. We insist that there must be full compliance of the Court rules. Having found that the appeal was filed out of time, hence incompetent, we accordingly, strike it out. Since this is a labour matter, we make no order as costs. DATED at DAR ES SALAAM this 13th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Ruling delivered this 15th day of May, 2026 in the presence of the Appellant in person, Ms. Grina Aden, learned Principal State Attorney for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby 11