Cosmas Mwaifani vs Minister for Health, Community Development, Gender, Elderly & Children & Others (Civil Appeal No. 446 of 2023) [2024] TZCA 1302 (24 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NPIKA, 3.A.. GALEBA. J.A.. And. MGEYEKWA. J.A.1 ) CIVIL APPEAL NO. 446 OF 2023 COSMAS M W AIFW ANI............................................................. VERSUS THE MINISTER FOR HEALTH, COMMUNITY DEVELOPMENT, APPELLANT GENDER, ELDERLY AND CHILDREN ....... MEDICAL STORES DEPARTMENT BOARD OF TR U ST EES............................................ THE ATTORNEY G EN ER A L ........................ SECOND RESPONDENT . THIRD RESPONDENT FIRST RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, 21st October & 24th December, 2024 NPIKA. J.A.: The appellant, Cosmas Mwaifwani, contests the ruling of the High Court of Tanzania, Main Registry at Dar es Salaam in Miscellaneous Application No. 58 of 2022, dated 26th June, 2023, which declined his application for the prerogative writs of certiorari, mandamus and prohibition. It is necessary to begin with the appeal's background: The second respondent in this case, the Medical Stores Department Board Main Registry at Dar es Salaam) (Mango, J.) dated the 26th day of June, 2023 in Miscellaneous Application No. 58 of 2022 JUDGMENT OF THE COURT

of Trustees, was created by the Medical Stores Department Act, Cap. 70 ("the Act"), as an independent, non-profit seeking organisation within the ministry responsible for health. It is tasked with creating, preserving, and overseeing an efficient and cost-effective system of manufacturing, acquiring, storing, and distributing authorised medications and medical supplies needed by all public health facilities in the country. In this judgment the term "Department" will refer to "the Medical Stores Department" separate from its Board of Trustees. In 2003, the appellant was hired as the Customer Services Manager by the second respondent. In 2004, he became the Director of Customer Services and Zonal Operations, and in 2012, he was named the Department's Acting Director General. On 15th February, 2016 the Chairman of the second respondent served him with a letter of that day referenced MSD/01/664/6 (Annexure A1 to the supporting affidavit) suspending him from duty with immediate effect. The relevant part of that letter states as follows: "RE: SUSPENSION FROM DUTY WITH IMMEDIATE EFFECT The above-mentioned subject refers. I have received the directive from the Minister for Health, Community Development, Gender, Elderly and Children to suspend you from employment with immediate effect to pave way for investigations into the alleged financial irregularities leveled against you.

In this regard, you are suspended from duty on half pay from the date of this letter pending final conclusion of the investigations. During the pendency of the investigations, you will not travel out of your workstation without prior written permission from the Director General. You are directed to hand over your responsibilities to Mr. Terry Edward by 16th February, 2016. (Signed) Prof Idris A. Mtulia Chairman, Board of Trustees" The excerpt above makes it clear that the second respondent took the suspension following the directive of the first respondent, the Minister for Health, Community Development, Gender, Elderly, and Children. Certainly, it was allegedly an action required to clear the path for inquiries into claims of financial irregularities made against the appellant. The appellant was subsequently issued with a disciplinary accusation consisting of 10 counts on 30th May, 2016, and he was required to offer his defence. On 25th June, 2016, he appeared for a hearing before the Inquiry Committee ("the Committee") after properly filing his defence in writing. The second respondent fired the appellant on 8th July, 2016, with immediate effect, in accordance with the conclusions and suggestions made in the Committee's report. The

appellant properly appealed to the first respondent, via a letter dated 29th July, 2016, in accordance with his right of appeal as stipulated under section 12(a) of the Act. In her letter dated 10th October, 2016, referred to as CHD.209/509/0 l/C/53, the first respondent dismissed the appeal, stating in Kiswahili what may be roughly translated into English as follows: "I have review ed your defence challenging the Board's decision to dism iss you and the grounds you gave fo r challenging the decision. I am satisfied that the punishm ent you have been given is appropriate considering the disciplinary offences you have com mitted. On that basis and bearing in m ind the offences you have committed, your dism issal is upheld." The appellant, being resentful of the first respondent's decision to confirm his termination from employment, applied to the High Court under sections 2(1) and (3) of the Judicature and Application of Laws Act, Cap. 358, sections 17(2) and 18(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310, and rule 4 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, Government Notice No. 324 of 2014, for the aforementioned prerogative writs: one, an

order of certiorari quashing the decision of the first respondent dated 10th October, 2016, which confirmed the second respondent's decision terminating the appellant's employment. Two, an order of mandamus compelling the respondents to reinstate the appellant to his former employment with the second respondent with full remuneration paid in arrears from the date of termination. Finally, an order of prohibition against the first and second respondents precluding them from taking any action against the appellant beyond what is permitted by law. The appellant cited the following grounds as the foundation of his quest for judicial review, contending violation of the rules of natural justice in the disciplinary process and illegalities in the procedure and decision-making:

1. That officials low er in rank than him were w rongfully appointed to the Committee.

2. That because the firs t respondent is the same person who started the accusations against him, he was the target o f a biased appellate authority.

3. That the Committee was biased because its chairman, an officer who reported directly to the first respondent, had a stake in the outcome o f the m atter because he presided over a case that was effectively started by h is im m ediate superior.

4. That the first respondent's decision confirm ing his term ination was arrived a t in bad faith and im proper m otive because o f the first respondent's failure to determ ine his appeal in tim e despite several rem inders u n til when he was served with a copy o f the im pugned decision by the Chief Secretary.

5. That the Committee did not hold a proper hearing because it did not provide him a chance to cross-exam ine the second respondent's witnesses or present h is own ; and he was given an unreasonable am ount o f tim e to be prepare for the hearing.

6. That despite the ongoing crim inal proceedings against him, the Com mittee held and carried out the disciplinary procedures.

7. That the second respondent acted erroneously by term inating his employment when he was facing crim inal charges a ll o f which ended in h is favour, yet the respondents failed to reinstate him to h is position thus causing him serious hardship in his life.

8. That the first respondent, being the author o f the allegations against him through the Mwananchi newspaper, acted with m alice and in total disregard o f the principles o f naturalju stice by sittin g as a judge against him in a m atter which originated from her. Unimpressed, the High Court dismissed all the above grounds of grievance and declined the application. The appellant, feeling wronged, challenges the High Court's decision on six grounds:

9. That the tria l Judge erred in taw by failing to properly construe the M edical Stores Departm ent Act, Cap. 70 regarding the role o f the first respondent in the disciplinary process over the second respondent's employees.

10. That the ruling o f the tria l court contains m aterial contradictions regarding the role piayed by the first respondent in the disciplinary proceedings o f the appellant by standing as the com plainant, prosecutor and judge in a m atter that originated from her.

11. That the tria l court erred in law by upholding a decision tainted with illegalities, lack o f im partiality and contrary to the rules o f naturaljustice prohibiting a person to become a judge in h is own cause and failure to accord a fa ir hearing to the em ployee while determ ining h is disciplinary charges.

12. That the tria l court erred in law by holding that the disciplinary proceedings were legally correct to proceed while the appellant was facing another crim inal charge a t the Resident M agistrate's Court o f Dar es Salaam a t Kisutu on the same m aterial facts dealt with by the D isciplinary Committee.

13. That the tria l court erred in law by upholding the decisions o f the first and second respondents resulting in illeg al proceedings o f the purported Inquiry Com mittee which had acted w ithout a quorum and was m otivated by bias to su it the interests o f the first respondent who was the fin a l appellate authority in respect o f the em ploym ent o f the com m ittee members who com posed the report.

14. That the tria l court departed from the principles la id down by the Court o f Appeal o f Tanzania regarding the same parties on the same issues. Ttie appellant's learned counsel, Mr. Mohamed Tibanyendera, dropped the sixth ground of appeal during the hearing of the appeal before us. Instead, he focused on the written argument he had submitted in favour of the remaining grounds of appeal. We would want to state right away that the written argument is, to be fair, lengthy, discursive, and repetitious. We had to separate the grain from the chaff to get to its core. The respondents fiercely resisted the appeal, through learned Principal State Attorney Mr. Francis Rogers and learned State Attorney Ms. Emma Ambonisye. Ahead of dealing with the grounds of appeal, it is necessary to recall that in Sanai Murumbe and Another v. Muhere Chacha [1990] T.L.R. 54 the Court outlined the conditions which ought to be proved for the writ of certiorari to issue. After reviewing several English decisions including Associated Provincial Pictures Houses Limited v. Wednesbury Corporation [1947] 2 All ER 680; R v. Northumberland Compensation Appeal Tribunal e x p a rte Show [1952] 1 All ER 122; Anisminic Limited v. Foreign

Compensation Commission (1969) 1 All ER 208; Council of Civil Service Unions v. Minister for the Civil Service [1984] 3 All ER 935, this Court held in Sanai Murumbe {supra) thus: "The High Court is entitled to investigate the proceedings o f a low er court or tribunal or a public authority on any o f the follow ing grounds, apparent on the record. One, that the subordinate court or tribunal or public authority has taken into account m atters which it ought not to have taken into account Two, that the court or tribunal or public authority has not taken into account m atters which it ought to have taken into account Three, lack or excess o f jurisdiction by the tower court. Four, that the conclusion arrived a t is so unreasonable that no reasonable authority could ever come to it Five, rules o f natural ju stice have been violated. Six, ille g a lity o f procedure or decision." In addition to restating the above principles, the Court emphasised in Rahel Mbuya v. Minister for Labour and Youth Development and Another [2008] T.L.R. 304 that the High Court is not exercising appellate authority over the decision of the inferior tribunal or body when deciding whether to grant certiorari. Its sole responsibility is to supervise and make sure the lower-level tribunal or 9

body complied with the law. Importantly, the Court said in that instance that the High Court would concentrate on any "error apparent on the face of the record" in a judicial review, which it defined as follows: "It is trite iaw that an error is apparent on the face o f the record if it can be ascertained m erely by exam ining the record w ithout having recourse to other evidence. An error which has to be established by lengthy and com plicated argum ents is not an error o f law apparent on the face o f the record. However, where it is dear that the conclusion o f law recorded by an inferior tribunal is based on an obvious m isinterpretation o f the relevant statutory provision or in ignorance o f it, or is expressly founded on reasons which are wrong in law, the tribunal's decision can be quashed by the court through certiorari." We start with the complaint in the first ground of appeal, keeping in mind the above established position. It clearly criticises the trial judge for incorrectly interpreting and applying the Act regarding the first respondent's role in the disciplinary procedure over the employees of the second respondent.

In our view, while the complaint at hand is a narrow one, the appellant brought up issues in his written submissions about the first respondent's claimed violations of natural justice principles, which ought to have been addressed under the second and third grounds of appeal. In this context, our attention must be restricted to examining the High Court's assessment and determination of the role of the first respondent in the disciplinary procedure involving the second respondent's employees. The contested decision makes it clear that the trial court was aware of two crucial issues. First, that the second respondent was accountable to the first respondent for the effective administration and execution of the Department's duties under section 7(1) of the Act. The High Court also correctly determined that the first respondent had the power to give the second respondent general or specific directives in the premises. We further concur with the court that the first respondent's directive to the second respondent to suspend the appellant and three other officials while the accusations against them are investigated was not obviously incorrect. It was an exercise of lawful authority.

Secondly, the trial court correctly concluded, in line with section 12(a) of the Act, that the first respondent was the last arbiter of appeals from the second respondent's decisions regarding disciplinary proceedings pertaining to the Department's Director General and other Directors. Furthermore, the Director General is the disciplinary authority for all other Department's employees, and the second respondent is their last resort, according to section 12(b) of the Act, which specifically addresses all other employees. We thus dismiss the first ground of appeal because we are not satisfied that the court below misconstrued or misapplied the law regarding the first respondent's involvement in the disciplinary procedure. We move on to the second ground of appeal. In this complaint, it is argued that the trial court erred in determining the first respondent's involvement in the disciplinary procedures against the appellant by acting as the complainant, prosecutor, and judge in a case that started with her. In this case, it is common cause that the appellant was suspended by the second respondent in response to the first respondent's directive, which was recorded and made public by the print media, particularly the Mwananchi daily. The appellant and three

other Department's officials were accused of embezzling a total of TZS 1,500,000,000.00. Mr. Tibanyendera submits that it was improper for the first respondent to act as the complainant, the prosecutor, and the final appellate authority deciding the appellant's appeal in violation of the natural justice principles, particularly the rule against bias ( nemo judex in causa sua ), since the suspension and disciplinary actions against the appellant were the result of her directive. According to him, it was improper for the initiating machinery to take on the role of appellate authority in the same case. He counsels us to declare the first respondent's decision null and void based on this. Mr. Tibanyendera continues by criticising the trial court for ignoring a wealth of documented evidence indicating the first respondent interfered with the second respondent's disciplinary processes in order to obtain the appellant's termination. Given the seriousness of this charge, we believe it is essential to extract the pertinent passage from Mr. Tibanyendera's written argument: "Evidence o f interference o f the proceedings o f the second respondent were (sic) clearly outlined to the tria l court when referring to Annexures A1 and A2 to the affidavit

supporting the application which were not rejected by [the] tria l court The tria l court dosed its eyes on the evidence o f interference which were (sic) clearly disclosed on the face o f the record." In his rebuttal, Mr. Rogers contends that although the appellant's suspension was carried out under the first respondent's instruction, the ensuing disciplinary proceeding was autonomous and compliant with all applicable laws and procedural standards. He argues that the second respondent is a separate organisation that exists apart from the Ministry in charge of health and that the first respondent did not obstruct the Committee's or the Board of Trustees' disciplinary processes against the appellant. Regarding the first respondent's function in the disciplinary procedure, Mr. Rogers argues that the appellant's appeal was decided in conformity with the natural justice principles, particularly the rule against bias and the right to a fair hearing, and that the first respondent was, legally speaking, the appellant's final appellate authority. Prior to addressing the critique of the first respondent's involvement in the disciplinary procedure, we believe it is logical to address Mr. Tibanyendera's assertion that the trial court ignored the proof of the first respondent's meddling in the second respondent's 14

disciplinary proceedings to terminate the appellant's employment. After reviewing Annexures A1 and A2 of the supporting affidavit, which Mr. Tibanyendera refers to as strong proof of interference, we believe the allegation of interference to be quite spurious and baseless. Indeed, Annexure A1 is a copy of the letter that the second respondent sent to suspend the appellant in response to the first respondent's order. We have excerpted its main content above. The conclusion that the first respondent obstructed the ensuing disciplinary procedure by giving the second respondent a directive is obviously far-fetched and impulsive. Additionally, Annexure A2 is irrelevant. It is an excerpt from the Mwananchi daily of 16th February, 2016, with the Kiswahili caption, "W aziri wa M agufuli amtumbua jip u m kurugenzi bila ganzi, "reporting that the appellant was suspended from his directorship by the first respondent. Evidently, it is not proof of the first respondent's meddling in the second respondent's disciplinary procedures against the appellant. Going back to the criticism of the first respondent's role in the disciplinary process, we should first acknowledge that the natural justice principles—that no man should be condemned unheard and that no man should be a judge in his own cause—are generally so fundamental that any decision made that violates any one of them 15

would be deemed invalid. However, insofar as the latter principle is concerned, we hasten to say that it may not apply in certain circumstances where the doctrine of necessity becomes relevant, as we shall see in due course. Mr. Tibanyendera argues that the rule against bias was broken in this instance since the first respondent served as the complainant, the prosecutor, and the final appellate authority, therefore becoming a judge in his own case. Although we concur with him that the appellant's case was decided by the first respondent as the ultimate appellate authority on a matter that started with her directive to the second respondent, we do not believe it would be accurate to refer to her in the disciplinary procedure as "the complainant" or "the prosecutor'' based only on her directive. We believe that the evidence clearly shows that she was not involved in the investigation into the accusations made against the appellant, the disciplinary process that followed, or the second respondent's decision to fire the appellant based on the Committee's findings and recommendations. Despite the foregoing, we find it troubling that the first respondent, whose directive prompted the disciplinary action against the appellant, had to serve as the appeal's last appellate authority.

Given the facts of this case, concerns regarding her fairness and impartiality seem to be real rather than hypothetical. It is, indeed, arguable that she might have used an impartial mind when deciding the appeal. Nevertheless, we are alert that, as stated by the Court in Tanzania Breweries Limited v. Mohamed Kazingumbe [2009] TZCA 19, there are situations in which Parliament, in its enduring wisdom, may specifically disregard the natural justice principles. Furthermore, the Court observed in that case, citing Justice G.P. Singh on page 348 of his work "Principles of Statutory Interpretation," 8th edition (2001), that the doctrine of necessity, which we alluded to earlier, may prevent the rule against bias from applying in some circumstances: "But this requirem ent may be dispensed with under what is now known as the doctrine o f necessity. The essence o f this doctrine is that 'if there is no other person excepting A to decide the issue, the doctrine o f necessity w iii make it im perative on him to decide the issue in spite o f any allegation o f bias': see, for instance, E le ctio n C om m ission o f In d ia v. S ubram antan Sw am y, SC 1810, page 1817 para, 5 ."

The Court continued by noting that: "One o f the commonly cited cases in vindication o f this doctrine is The Ju d g e s v. A tto rn e y G e n e ra l fo r S askatch ew an (1937) T.L.R. 464. In that case the judges o f Saskatchewan were held to be required ex necessitate to decide on the constitutionality o f legislation rendering them liable to pay incom e tax on their salaries. In our own jurisdiction ; there was a tim e when the N ational Election Commission was m andated by the law to constitute its e lf into a court to hear and determ ine petitions challenging the validity o f the Parliam entary elections it had its e lf conducted and supervised. Under this head also, m ay be added the pow er o f a court to com m it a person for contem pt o f itse lf . " From the aforementioned perspective, it is impossible to dispute that, despite any lingering concerns regarding her impartiality in the case, the first respondent was obligated to hear and determine the appellant's appeal because, according to section 12(a) of the Act, she is the only authority with the mandate to hear and decide from the second respondent's decisions regarding disciplinary matters involving the Department's Director General and all other Directors. The

situation may seem grotesque, but that is what the law is at present. We accordingly find that the second ground of appeal does not advance the appellant's cause. We find it rational to skip the third ground of appeal for now and deal with the fourth grievance, reproaching the trial court for approving the simultaneous legal actions that the appellant allegedly endured through disciplinary and criminal proceedings. Mr. Tibanyendera claims that the Prevention and Combating of Corruption Bureau ("the PCCB"), a government organisation tasked with combating corruption and embezzlement, investigated the appellant after his suspension. This investigation coincided with the Committee's disciplinary proceedings. He maintains that "the PCCB charges" coexisted with the disciplinary proceedings in violation of section 37(5) of the Employment and Labour Relations Act, Cap. 366 ("the ELRA") and regulations 71(a) and (b) of the Medical Stores Department Staff Rules and Regulations, 2015 ("the Regulations"). Additionally, the learned counsel objects to the trial court's conclusion that the appellant's criminal proceedings were initiated in 2017 based only on the fact that the matter was docketed in the Resident Magistrate's Court of Dar es Salaam at Kisutu ("the RM's Court") as Criminal Case No. 102 of 2017.

Mr. Rogers responds that the provisions his learned friend cited forbid the establishment of disciplinary proceedings and the application of a disciplinary measure to an employee who is being prosecuted in a court of law for a crime that is essentially the same as the disciplinary offence. Maintaining that the appellant was fired before any criminal proceedings were initiated against him, he urged us to uphold the trial court's position on that aspect. Pertinently, regulation 71(a) and (b) of the Regulations prohibits the second respondent, as the employer, from initiating or continuing disciplinary proceedings or measure against any employee of the Department who is charged with a crime that is substantially similar to the disciplinary offence in issue: "71. Where an employee is alleged to have com m itted a disciplinary offence and the act or om ission constituting such offence also constitutes a crim inal offence under any written law, the follow ing rules sh all apply: (a) I f no disciplinary proceedings under these Regulations have been commenced in respect o f the disciplinary offence, but the proceedings fo r crim inal offence in these Regulations referred to as 'crim inal proceedings' are instituted

against the accused employee in any court o f law, no disciplinary proceedings sh all be commenced until after the conclusion o f the crim inal proceedings; (b) I f the disciplinary proceedings ha ve been commenced and during the pendency o f such proceedings, crim inal proceedings fo r the crim inal offence are instituted, the disciplinary proceedings sh all be stayed and no further step sh all be taken in respect o f that disciplinary proceeding u n til after the conclusion o f the crim inal proceedings." We stress that the above provision targets the co-existence of disciplinary proceedings and the institution of a criminai charge against an employee for a criminal offence that is much the same as the disciplinary offence. Interpreting a similar ban under section 37(5) of the ELRA, the Court, in CCBRT Hospital v. Daniel Celestine Kivumbi [2023] TZCA 17599, held that what is barred is institution or continuance of disciplinary actions against an employee while a criminal charge is pending in court. Thus, initiation of criminal investigations against an employee after a criminal complaint is lodged with a law enforcement agent does not preclude disciplinary actions.

Based on the foregoing, we support the trial court's decision that it was necessary to demonstrate that the disciplinary actions took place concurrently with the initiation of the criminal proceedings against the appellant in the RM's Court in order for parallel proceedings to be considered to have existed against the appellant. There is no room for doubt given the circumstances of this case. On 15th February, 2016, the appellant was placed on suspension, and on 30th May, 2016, he was given the disciplinary charge. On 8th July, 2016, the second respondent fired him after his disciplinary hearing on 25th June, 2016. His fate was sealed on 10th October, 2016, when the first respondent denied his appeal. It is undeniable that the PCCB had been conducting criminal investigations into him the entire time, yet no charges were brought against him other than the one pertaining to RM's Court Criminal Case No. 102 of 2017. Although the date of the initiation of the criminal charge is not stated in the record, its docket number is undeniable. The trial court's conclusion that it is reasonable to assume from the case number that it was filed in 2017 is, in our opinion, unassailable because the registration system for that court, as well as for all other courts in the nation, keeps track of a number for every calendar year. As a result,

there is absolutely no validity to the claim that the appellant was the victim of illegal parallel proceedings. The fourth ground of appeal is unsuccessful. Returning to the third complaint, we observe that it calls for us to consider whether the trial court erred in law by sustaining the allegedly unlawful decision of the first respondent. On this issue, Mr. Tibanyendera reiterated his previous arguments, asserting that the decision was unlawful because the appellant was put in double jeopardy because of parallel proceedings against him and that the first respondent's involvement inthecase went against the natural justice principles. In paragraph6.4 of the written argument, he makes the following claim: "Lack o f im partiality and breach o f cardinal rules o f natural ju stice have been elaborated a t length when subm itting on the first and second grounds o f appeal. In addition, we wish to subm it that the second respondent was not acting with im partiality from the beginning. The le tte r m arked as [Annexure] A1 to the affidavit o f [the] appellant was dear and the tria l court confirm ed that the second respondent acted under instructions o f the

firs t respondent This instruction was made through public m eeting in the presence o f a ll media outlets. The outcom e o f the d ire c tiv e w as a n ticip a te d b y a ii re a so n a b le m en in th e so cie ty . [ ...] AH re a d e rs k n e w th a t th e fir s t re sp o n d e n t h a d te rm in a te d th e a p p e lla n t's em p lo ym en t w ith the se co n d respondent. That was p rio r to the commencement o f the disciplinary investigations. "[Emphasis added] The appellant's arguments, which are based on the purported violation of the rule against bias and the parallel procedures against him, are without validity, as was said in relation to the second and fourth grounds of appeal. Therefore, his contention that the first respondent's decision was, in turn, tainted by illegalities is evidently implausible. Mr. Tibanyendera's assertion that the conclusion of the disciplinary process was predestined as it was "anticipated by all reasonable men in the society" before the disciplinary investigations had started is equally speculative, absurd and untenable. The independence and integrity of the disciplinary procedure the appellant underwent were undeniable, as Mr. Rogers correctly contended. We found no proof to the contrary in the records. In

actuality, the fact that the three other officials who were the subject of the investigations along with the appellant were not dismissed amply demonstrated the validity of the disciplinary procedure. This refutes his unsupported assertion that the disciplinary procedure's conclusion was skewed and predetermined. We conclude with the fifth complaint, which essentially states, in the first limb, that the disciplinary procedure against the appellant was faulty due to the Committee's lack of quorum to execute its work and, in the second limb, the fact that one of its three members did not sign the report. In support of the contention in the first limb, Mr. Tibanyendera argues that the trial court acknowledged "the allegation by the appellant that the Inquiry Committee acted without a quorum and that it was motivated by bias to suit the interests of the Minister," but it disregarded the shortcoming and approved the outcome of the disciplinary procedure. Here, we must step in and immediately reject this assertion. The trial court did not admit that the Committee operated with bias and without a quorum anywhere in its ruling, which we have painstakingly read. As for the second point, he faults the trial court for speculating that the Committee member who did not sign the report might have

participated in the disciplinary proceedings anyway. According to him, the fact that the member's signature is missing indicates that he was not involved in the process. Mr. Rogers tersely responds that the Committee was quorated to carry out its duties and that the omission of the signature of one of its members was harmless. Whether the Committee proceeded without a quorum is the first question we address. First, we observe that the appellant did not challenge the Committee's quorum until this point, despite his claims before the High Court that the Committee was composed of people of lower rank than him, that it lacked independence and impartiality, and that it denied him the chance to cross-examine and call witnesses. The matter was obviously not taken into consideration or decided by the trial court, given that it was not raised at that stage. Therefore, this issue is an afterthought Despite the foregoing, we can see from the record that the second respondent constituted a three-member Committee, which was led by Mr. Michael John and included Messrs. Castro Simba and Stanslaus Mpembe. After carefully reviewing the documents, we believe that the assertion that the Committee operated without a quorum is a rash and improbable accusation that is not supported by

the evidence. As he acknowledged in paragraph 10 of his supporting affidavit that the Committee was fully quorated when he came before it for a hearing on 25th June, 2016, the appellant's current complaint is rendered untenable: "That, about a month later I was served with another notice dated 22/06/2016 with reference No. MSD/01/715/16 requiring me to appear before an inquiry com m ittee fo r a m eeting on disciplinary proceedings w hich h a d to b e h e ld on 25th d a y o f Ju n e, 2016, w hich m eetin g I a tte n d e d a n d I w as in fo rm e d o f its m em bers a n d th e ir re sp e ctiv e ran ks, nam ely; M ichael John (DAP, M inistry o f Health, Chairman), Stanslaus Mpembe - Deputy Internal Auditor General, Governm ent Internal A udit O ffice (member), Castro Simba, C hiefSupplies O fficer - M inistry o f Health (member) and Legal O fficer - M inistry o f Health (secretary)." [Emphasis added] It seems that the question of quorum is most probably raised because the Committee's report, unveiled on pages 190 through 207, was not signed by one member, Mr. Mpembe. We concur with the trial court that the omission of the signature would not necessarily lead to

an inference that the said member did not participate in the proceedings, given that the appellant deposed that the said member was present when he appeared before the Committee for hearing. Furthermore, we do not think that Mr. Mpembe's signature being missing is a weighty issue going to the root of the disciplinary proceedings. We think that the omission is trivial and does not diminish the report's legitimacy or worth because the second respondent adopted, ratified, and acted upon it exactly as the Committee delivered it In our view, the appellant should have requested and filed Mr. Mpemba's supporting affidavit if he had thought that the absence of the signature indicated that he disagreed with the Committee's conclusions and recommendations. Before we wrap up on the fifth ground, we would like to note that the appellant tried to sneak into the ground at hand the allegation that the first respondent's decision dismissing his appeal failed to address his sixteen grounds of appeal. It is contended with verve that the first respondent dismissed the appeal in a generic statement without providing any justification. The appellant's approach is undoubtedly wrong for, at least, two reasons. At the forefront, the said point was neither pleaded nor taken as a ground in the application for judicial review; as a result, the trial

court did not take it into consideration or determine it. As the Court held in Hotel Travertine Limited & Others v. National Bank of Commerce Limited [2006] T.L.R. 133: "As a m atter o f general principle, an appellate court cannot allow m atters not taken or pleaded in the court below, to be raised on appeal (see: G andy v. G asp ar A ir C h a rte rs Ltd . (1956) 23 EACA 139; Ja m e s Funke G w ag Ho v. A tto rn e y G en e ra l (CAT) C ivil Appeal No. 67 o f2001 (unreported)," The foregoing apart, it is obvious that the appellant's argument does not fit under the purview of the fifth ground. It is a distinct matter that ought to have been brought up in accordance with rules 106(3)(ii) and 113(1) of the Tanzania Court of Appeal Rules, 2009 as an additional ground. Indeed, the latter rule prohibits a party from raising and arguing a ground of appeal not listed in the memorandum of appeal, without the Court's leave: "113. -(1) A party sh all not w ithout the leave o f the Court, argue that the decision o f the High Court or tribunal, should be reversed or varied except on a ground specified in the memorandum o f appeal or in a notice o f cross appeal, or in support o f the decision o f the High Court or tribunal on any ground not relied

on by that court or specified in a notice given under rule 94 or rule 100." As a result, we refuse to consider the above argument. Thus, the fifth ground of appeal fails in totality. Ultimately, we hold that the appeal has no substance. We dismiss it with no order on costs. DATED at DAR ES SALAAM this 18th day of December, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 24th day of December, 2024 in the presence of Mr. Victor Alexander, learned counsel for the appellant and Mr. Pantaleo Urassa, learned State Attorney for the Respondent,