Hamis Babu Bally vs Judicial Officers Ethics Committee and 3 Others (Civil Appeal No. 448 of 2021) [2024] TZCA 1010 (31 October 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE, J.A., MWAMPASHI. 3.A. And NGWEMBE. 3. A.) CIVIL APPEAL NO. 448 OF 2021 HAMIS BABU BALLY ......... . .................................................. .......... APPELLANT VERSUS THE JUDICIAL OFFICERS ETHICS COMMITTEE .................. 1 st RESPONDENT THE CHIEF COURT ADMINISTRATOR ..................... . ........... 2 nd RESPONDENT THE JUDICIAL SERVICES COMMISSION ............................. 3 rd RESPONDENT THE ATTORNEY GENERAL .......... . ..................................... . 4™ RESPONDENT [Appeal from the Ruling and Order of the High Court of Tanzania at Dares Salaam) fNdvasobera, J.) dated 22n d day of September, 2017 in Miscellaneous Civil Application No. 11 of 2017 JUDGMENT OF THE COURT 21st & 31st October, 2024 MWAMPASHI, J.A.: Hamis Babu Bally, the appellant herein, was a Resident Magistrate stationed at Pangani District Court until his termination by the Judicial Service Commission (the 3rd respondent) on 31.1.2016. The termination was a result of the appellant being found guilty by the Judicial Officers Ethics Committee (1st respondent) of two offences namely; misconduct incompatible with holding of a judicial office and gross negligence in the discharge of judicial functions. Aggrieved by the dismissal and desirous of challenging the dismissal by way of judicial review, the appellant had to firstly apply and obtain leave to i

do so as it is mandatorily required under rule 5 (1) of the Law Reform (Fatal Accident and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. In that regard and for that purpose, the appellant filed Miscellaneous Civil Application No. 11 of 2017 before the High Court of Tanzania at Dar es Salaam, seeking leave to file an application for prerogative orders of certiorari, mandamus and prohibition against the respondents. Reliefs in the following form were sought by the appellant: (a) That, this Honourabie Court be pieased to grant ieave for the filing o f an application for Prerogative Orders o f Mandamus, Prohibition and Certiorari, in term s o f the Reliefs sought in the STA TEMENT accompanying the A ffidavit o f the Applicant annexed to this application. (b) Cost o f this application be provided fo r (c) Any other relief(s) that the Honourabie Court m ay deem ju st and equitable to grant In its ruling dated 22.09.2017, the High Court (Dyansobera, J.), dismissed the appellant's application on the ground that the appellant had failed to establish an arguable or prim a facie case warranting further consideration in an application for judicial review. Dissatisfied with the dismissal of his application, the appellant has preferred the instant appeal on the following grounds:

1. The High Court o f Tanzania d id not propedy interpret the iaw governing applications for leave to apply fo r orders o f mandamus, prohibition and certiorari.
2. That, the High Court o f Tanzania erred in law and fact when it analysed and ruled on m erits a t a leave stage on the disputed/contentious facts, evidence and grounds on which the reliefs sought (to wit, violation o f the right to a fa ir hearing, bias/discrim ination, irrationality and ultra vires/illegality), thereby treating the application before it as an application fo r ju d icia l review rather than an application fo r leave to apply fo r orders o f mandamus, prohibition and certiorari.
3. The High Court o f Tanzania failed to exercise its discretion judiciously when it failed to rule out that there were disputed/contentious facts, evidence and grounds on which the reliefs were sought ((to wit, violation o f the right to a fa ir hearing, bias/discrim ination, irrationality and ultra vires/illegality) fit for consideration on m erits by way o f ju d icia l review. At the hearing of the appeal, the appellant was represented by Dr. Lucas Kamanija, learned advocate, whereas the respondents had the services of Ms. Subira Mwandambo, leaned Principal State Attorney, teaming up with Messrs. Pantaleo Urasa and Hans Mbando, both learned State Attorneys. When invited to argue the appeal Dr. Kamanija, adopted the written submissions he had earlier filed on 26.01.2022. Without more, he prayed for the appeal to be allowed. The appeal was opposed by Ms. Mwandambo on grounds to be stated in due course.

On our part, having examined the three grounds of appeal and the impugned High Court Ruling and taking into consideration the nature of the verdict to be rendered, we are of a considered view that the complaint on ground 2 of the appeal suffices to dispose of the appeal. In essence, ground 2 of appeal is to the effect that in determining the application for leave to apply for judicial review, the High Court went astray by failing to confine itself to the application before it and delving into deciding the merit of the main application for judicial review which was not yet before it. From the appellant's written submissions, it was submitted in support of ground 2 of appeal, that as it can be gleaned from its Ruling, the High Court treated the application for leave to apply for prerogative orders as if it was a substantive or main application for judicial review. In substantiating this argument, the Court was referred to some few paragraphs at pages 85 and 86 of the Ruling where the High Court is on record finding and concluding that as regards to the complaint that there was violation of the right to a fair hearing, there was no dispute that the applicant was not only given the right to defend himself in writing but also that he was heard orally. It was insisted that at the stage of the application for leave, the High Court determined and decided contentious issues on the complaints that there was a violation of the right to fair hearing, bias, discrimination, irrationality, ultra vires and

illegality, issues which were to be determined and decided in the intended main application for judicial review. The fact that in the course of determining the application for leave to file an application for judicial review, the High Court did also delve into the main application for judicial review which was not yet before it, was conceded by Ms. Mwandambo. Despite her concession, she however, argued that the relevant offending part of the Ruling can be expunged from the record leaving the rest of the Ruling which is to the effect that, the appellant did not present sufficient reasons to warrant grant of leave, intact. Relying on the decision of the Court in F.3329 CpI. Buberwa Leonard Magayane and Another v. The Minister for Home Affairs and 2 Others (Civil Appeal No. 119 of 2020) [2023] TZCA 17399 (10 July, 2023; TanzLII), Ms. Mwandambo submitted that in paragraphs 19 and 20 of the affidavit in support of the application before the High Court, the appellant deposed that the proceedings and inquiry report by the 1st respondent he had requested were not supplied to him. The same were thus, not presented before the High Court during the hearing and determination of the application for leave. It was argued further by Ms. Mwandambo that it was for the absence of the proceedings and the inquiry report, that the High Court dismissed the appellant's application because there was no way the High Court could have ascertained that a prim a facie c ase had been established 5

to warrant the grant of leave without having seen and examined the proceedings and the inquiry report. Thus, Ms. Mwandambo implored the Court to dismiss the appeal because the High Court rightly dismissed the appellant's application for leave to file an application for judicial review. In his brief rejoinder, Dr. Kamanija argued that the facts that the proceedings and the inquiry report, the appellant had requested from the 1st respondent, were not supplied to him were disputed by the respondents under paragraph 9 of their counter affidavit. It was further submitted by him that the issue on the absence of the said documents was therefore contentious and could neither be dealt with in the application for leave nor was it raised before the High Court. Dr. Kamanija finally argued that since it has been conceded by the respondents that the High Court wrongly decided the merit of the main application for judicial review which was not before it, then its decision has to be quashed and the appeal should be allowed with costs. He also prayed that leave for the appellant to file an application for judicial review be granted. To begin with, we should restate that it is a settled procedural law that an application for judicial review must be preceded by a successful application for leave to file the same. See- Attorney General v. Wilfred Onyango Mganyi and 11 Others, Criminal Appeal No. 276 of 2006 (unreported) and Emma Bayo v. The Minister for Labour and Youth 6

Development and 2 Others (Civil Appeal No. 79 of 2012) [2013] TZCA 190 (23 March, 2013; TanzLII). In Attorney General (supra), the Court quoted The Halsbury's Laws of England, 14th Edition, in paragraph 568, that: "Leave o f the court is a necessary pre-condition to the m aking o f an application for ju d icia l review, and no application forju d icia l review may be made unless this leave has first been duly obtained" It is also noteworthy to restate that leave must be applied for and obtained before filing an application for prerogative orders. The aim is to filter out hopeless and groundless applications and also to prevent the wastage of time. In an application for leave to apply for prerogative orders the court looks for three things; one, whether the applicant has interest or iocus stand, two, whether the application has been made timeously and three, whether the applicant has made out a prim a facie case. At leave stage, all what the applicant is required to do is to merely raise arguable points. At this stage the applicant is not required to prove the errors he alleges. Until when leave is obtained and the application for judicial review is filed, that is when the applicant is required to prove the alleged errors. The law on applications for leave to file applications for judicial review, its aim and purposes, was well stated by the Court in Emma Bayo (supra), that:

"We also respectfully agree with both Mr. Materu and Mr, Chavula that the stage o f leave serves several Important screening purposes. It Is a t the stage o f leave where the High Court satisfies itse lf that the applicant for leave has made out any arguable case to ju stify the filin g o f the main application. A t the stage o f leave the High Court is also required to consider whether the applicant is within the six months lim itation period within which to seek a ju d icia l review o f the decision o f a tribunal subordinate to the High Court. A t the leave stage is where the applicant shows that he or she has sufficient interest to be allow ed to bring the main application. These are prelim inary m atters which the High Court siting to determine the appellant's application for leave should have considered while exercising its ju d icia l discretion to either grant or not to grant leave to the applicant/appellant herein''. Reverting to the complaint on ground 2 of the appeal that, in the course of determining the application for leave to apply for prerogative orders, the High Court went beyond what was required at that stage of leave when it determined the main application for judicial review which was not before it, we are in agreement with Dr. Kamanija, as also conceded by Ms. Mwandambo, that it is crystal clear that in its Ruling the High Court did not only determine the application before it, but it also went into the

determination of the main application for judicial review which was yet to be brought before it. In its Ruling at page 85 to 86 of the record of appeal, the High Court concluded thus: "A? fa r as the violation o f right to a fa ir hearing is concerned there is no dispute that the applicant was not only given the right to defend him self in writing but also he was heard orally. There is no evidence in the affidavit proving that the 1st respondent com m itted breach o f principles o f naturaljustice. This also answers the com plaint on bias/discrim ination. A s regards irrationality/unreasonableness it was not proved in the affidavit that the 1st respondent reached a decision which no reasonable body would have reached nor was there any suggestion that it abused its powers. The application (sic) is also basing h is re lie f on the ultra vires/illegality. The perusal o f the applicant's verifying affidavit does not reveal that the decision m aker did not understand correctly the law that regulated its decision making pow er and did not give effect to it. Moreover, as rightly subm itted by Mr. Mwakitalu, learned Senior State Attorney\ which subm ission I have no reason to fault, the applicant was given a fa ir hearing both orally and in w riting "

The above conclusion by the High Court vividly shows that in the course of determining the application for leave to file an application for judicial review, it also conclusively determined the intended main application for judicial review which was not before it. This was a fatal irregularity. Under these circumstances, it cannot be ruled out that, in refusing leave, the High Court was not influenced by its finding that the appellant had failed to prove that there was bias, discrimination, violation of the right to a fair hearing, irrationality and unreasonableness. It is in this respect that we disagree with Ms. Mwandambo that the above conclusive findings by the High Court can be expunged from the record leaving the rest part of the Ruling intact. Before we pen-off we should appreciate and take note that Ms. Mwandambo urged us to dismiss the appeal on the ground that in the absence of the proceedings and the inquiry report of the 1st respondent, the High Court could not have been in position to ascertain that a prim a fade case had been established by the appellant and therefore that leave was rightly refused. We think that, under the circumstances of this case, where the High Court delved into the determination of the main application for judicial review which was not before it, as we have demonstrated above, the issue of the absence of the proceedings and the inquiry report of the 1st respondent becomes of no significance at least at this stage.

All said and done, we find merit in ground 2 of the appeal. At the leave stage, the High Court should not have concluded that the appellant had failed to prove bias, discrimination, violation of the right to a fair hearing, irrationality and unreasonableness. The appeal is thus allowed, the High Court Ruling and drawn order are quashed and set aside. We remit the matter to the High Court for the appellant's application for leave to be heard afresh by another High Court Judge. No order is made as to costs. DATED at DAR ES SALAAM this 30th day of October, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. 1 NGWEMBE JUSTICE OF APPEAL The Judgment delivered on this 31st day of October, 2024 in the presence of Mr. Pantaleo Urassa, State Attorney, learned counsel for the Respondent also holding brief for Dr. Lucas Kamanija, learned advocate for the Appell^nt4s4iereby certified a^a true copy of the original. Aimu A. S ~ ChflGULU DEPUTY REGISTRAR COURT OF APPEAL