George Lugga Maliyamkono vs Principal Secretary of the Ministry of Science, Technology and Higher Education and Two Others (Misc Civil Cause No. 29 of 1998) [1999] TZHC 505 (26 February 1999)

44 TANZANIA LAW REPORTS [2000] TJ 4^ A this is beside the point and to date there has been no complaint on appellation of origin. The position of Messrs. McIntosh International may as well be so, but how would one expect an ordinary person, an ordinary buyer of Giyangi to know that Messrs. McIntosh International B is a wholly owned subsidiary of the respondent? A person interested in that drink would not go beyond what the label on the bottle says. By that name buyers would be mislead to believe that Giyangi is distilled and blended by a foreign company or by a company other c than the respondent. So the label carries a lie about itself. Upon these observations, therefore, the ninth ground would succeed. The eleventh and twelfth grounds have been abandoned. Upon the reasons and grounds contained in this judgment, the appeal succeeds. D Appeal allow'ed with costs. E GEORGE LUGGA MALIYAMKONO v. PRINCIPAL SECRETARY OF THE MINISTRY OF SCIENCE, TECHNOLOGY AND HIGHER EDUCATION AND TWO OTHERS F HIGH COURT OF TANZANIA AT DARES SALAAM G (Chipeta, J.) MISC.. CIVIL CAUSE No. 29 OF 1998 Judicial Review — Grounds for Judicial Review of an administrative decision - Power to terminate an employee vested in the Permanent Secretary - Decision to terminate made on the basis of a report submitted by a committee set up to enquire into the allegations made against the applicant - Whether the decision was intra vires. I

GFORGE LUGGA MALDAMKONO v. PRINCIPAL SLCRLTARY Ol THL MINISTRY OF SCIENt I- TFCI INOI.OGY AND HIGHI R II ’ C< ATION AND ( )THI 'RS 45 Natural justice Right to he heard Applicant given 7 days to give his A explanations about allegations against him Applicant gives explanations and is subsequently questioned about the same by a committee of inquiry before submitting its report - Whether the applicant's right to be heard was breached. B This was an application for certiorari to quash the first respondent's decision of terminating the applicant's employment, and mandamus to command the first respondent to reinstate the applicant in his teaching job at the Dar es Salaam Technical College. Prior to termination the applicant was served with a letter proposing disciplinary C measures against him for insubordination and refusal to carry out duties, and requiring him to give his explanations about the allegations. Subsequently the first respondent formed a committee to enquire into the allegations against the applicant. The committee questioned the applicant, his Head of Department, the College Principal and three D other persons and submitted its report to the first respondent who used the committee's finding to reach his decision. In court the applicant submitted that because the first respondent did not make the inquiry himself but used a committee whose finding were then used, the decision was ultra vires and void. He also claimed that his right g to be heard was breached. Held: (i) As the applicant was not a civil servant employed on permanent and pensionable terms, he could not rely on the Civil Service Regulations 1970 to challenge his termination; F (ii) All that the committee of enquity did was to enquire into the allegations against the applicant and submit its report to the first respondent who then made the decision to terminate. The decision was therefore, made by the appropriate authority; G (iii) The applicant was fully heard at every stage in the process leading to his termination and he defended himself accordingly although his defense did not carry the day; therefore, there was no breach of the natural justice. Application dismissed H Statutory provisions referred to: (i) Civil Service Regulations 1970 (ii) Education Act, 1978 I

46 T A NZ A NIA! AW REPORTS |2000]TI R. a RULING (Dated 26 February 1999) B CHIPETA, J: The applicant in these proceedings, George Lugga Maliyamkono, has applied for an order of certiorari to remove into this court and quash the decision of the first respondent, the Permanent Secretary (cited by the applicant as the Principal Secretary) of the c Ministry of Science, Technology and High Education terminating the applicant ’ s employment as a teacher. The applicant has also applied for an order of mandamus to compel the first respondent to reinstate the applicant in his job as a teacher and pay the applicant ’ s salaries and allowances from the date of his termination and regularize his appointment. The respondents resisted both applications. With the leave of the court, the parties ’ learned advocates filed written submissions. E In brief, the facts are that by a letter of the first respondent dated 2 April 1985, the applicant was appointed as a teacher grade IIB on temporary terms, and was attached to Dar es Salaam Technical College. By the first respondent ’ s letter dated 14 December 1993, the applicant F was dismissed from his employment on grounds of insubordination, misconduct, and inefficiency. By the first respondent ’ s letter of 19 January 1995, the applicant ’ s dismissal was changed to termination. It is that termination which the applicant is challenging in these proceedings. G After that termination, the applicant made representations to the Civil Service and Teacher ’ s Service Commissions to no avail because the applicant was not a public servant on pensionable terms nor was he a teacher under the provisions of the Education Act 1978. H The learned counsel for the applicant submitted that the applicant ’ s dismissal was made contrary to Civil Service Regulations 1970. This submission is defective in that what is being challenged here is terminating. Besides, since the applicant was not a civil servant on permanent 1 and pensionable terms, he cannot seek cover under those regulations.

GEORGE LUGGA MAI IYAMKONO v. PRINCIPAL SECRETARY OETHE MINISTRY OF SCIENCE, TECHNOLOGY AND HIGHER EDUCATION AND OTHERS A It has also been submitted that the first respondent should have a made the inquiry himself, and that since he based his decision on the findings of a committee, the decision was ultra vires and null and void. With respect, 1 can see no merit in this submission. All that the committee did was to inquire into the allegations or charges b against the applicant. Thereafter, the committee submitted its report to the first respondent. The committee, therefore, made no decision. The decision was made by the appropriate authority, that is, the first respondent, after ascertaining the facts on the allegations against c the applicant. I should, perhaps, add that the procedure used by the first respondent was the standard and accepted procedure. The complaint on this ground, therefore, is without merit. The termination, in my view, was in line with terms of the applicant ’ s letter of appointment. That letter reads, in part, as follows: Your appointment is subject to termination without notice in the event of insubordination, misconduct or inefficiency. The next substantive complaint is that the applicant ’ s termination E was illegal in that rules of natural justice were not followed because, it is said, the applicant was condemned without being heard. In order to determine this point, it is necessary to closely examine the sequence of events which later culminated in the applicant ’ s termination. There f is evidence, some of which supplied by the applicant himself, that the applicant ’ s Head of Department gave the applicant both verbal and written warnings about the applicant ’ s failure to set examinations and/or to submit reports. When the applicant paid no heed, the Principal g of the College (the second respondent) wrote Annexure ‘ B ’ by which he informed the applicant that he (the second respondent) was initiating appropriate disciplinary measures against the applicant for insubordination and refusal to carry out duties. By that letter, the applicant was required H to give his explanation within seven days, and by the same letter, the applicant was suspended from being a member of the teaching staff of the College. The applicant gave his explanation. Thereafter the first respondent appointed a committee to investigate the allegations. ] The committee questioned the Principal of the College, Head of

4S TANZANIA LAW REPORTS [2000jTLR. A Department, the Registrar of the College, the applicant himself, and two other people. The applicant made a lengthy explanation in his own defence. Subsequently, the committee submitted its report to the first B respondent. That report was supplied to the applicant. In short the committee found that the applicant was guilty of insubordination, misconduct, and inefficiency. It was then that the first respondent dismissed the applicant from his temporary employment and later c changed the dismissal to termination. That being the factual position, can it reasonably be said that the applicant was condemned unheard. The answer to that question, in my considered view, is an emphatic NO. The applicant was heard, D and fully heard, at every stage in the saga, and he defended himself accordingly although in the end his defence did not carry the day. All these steps were taken in favour of the applicant who, by terms of his letter of appointment, was liable to termination without notice. E There was, therefore, no breach of rules of natural justice. Let me reiterate here that as I understand the law, orders of certiorari and mandamus will only be issued where it has been shown that the authority in question has acted without, or in excess of its jurisdiction; or where such authority is shown to have acted with bias; or where there is an error on the face of the record; or where, on the totality of the facts and circumstances disclosed, the authority in question did not act legally or judicially. G In the instant matter, none of those requirements has been established. For the foregoing reasons, I see no merit in this application. The same is accordingly hereby dismissed with costs. H I