SAID JUMA MUSLIM SHEKIMWERI v ATTORNEY-GENERAL 1997 TLR 3 (HC) D

SAID JUMA MUSLIM SHEKIMWERI v ATTORNEY-GENERAL 1997 TLR 3 (HC) D

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK E

MISCELLANEOUS CIVIL CAUSE 3 OF 1996 F

1 November 1996

Flynote

Employment law - Public servant - Dismissal of - When permissible.

-Headnote

The applicant sought an order of certiorari to bring up and quash a decision of the President of the United Republic `retiring' the applicant, an immigration officer, in the public interest. It appeared that the applicant had been employed by the Government of Tanzania for some years without having been subjected to any disciplinary sanction. The applicant had read a newspaper report of his dismissal for allegedly receiving bribes. About two months later the applicant received a letter informing him of his retirement.

Held:

(1) The common law principle that a civil servant was dismissible at pleasure of the President was not part of the law of Tanzania;

(2) That the letter informing the applicant of his retirement cited provisions of law which were incompatible and this had caused the applicant considerable embarassment;

(3) Standing Order F35 which provided that all appointments were at the lasure of the President was invalid as it was in conflict with the provisions of ss 22 and 36(2) of the Constitution;

(4) The only legislative provision which permitted the compulsory retirement was paragraph (d) of section 8 of the Ordinance which would be utilised only for the purpose of facilitating improvements in the organisation of the department to which the civil servant belonged. It was clear that the applicant's removal had not been sought on these grounds.

Case Information

Application allowed.

Cases referred to:

1. James F Gwangilo v Attorney General Civil Case No 23 of 1993 (unreported)

2. Shenton v Smith [1895] AC 229

3. Gould v Stuart [1896] AC 575

4. I G Lazaro v Josephine Mgombera Civil Appeal No. 2 of 1986 (unreported)

5. Walsall Overseers v Railway Company [1878] 4 App Cases 30

6. Anisminic v Foreign Compensation Commission [1969] 2 AC 147

Nassoro for the applicant

E Songoro for the respondent.

Judgment

Samatta JK:

This is an application by way of a chamber summons for an order of certiorari to bring up and quash a decision of the President of the United Republic `retiring' the applicant, who was an Immigration Officer, in the public interest.

The background to the application may, I think, be stated as shortly as is consistent with intelligibility. On 1 June 1984, the applicant was employed by the Government of Tanzania as an Immigration Assistant. Following a promotion on February 1991, he became an Immigration Officer, Grade III. In the third paragraph of his affidavit supporting the application, the applicant asserts that during the whole of his career in the Civil Service he was never formally warned, reprimanded or in any way penalised for anything done in connection with, or incidental to, the performance of his duties. No information is given in the H counter-affidavit contradictory of this averment. In the 2 June 1995 issue of the Daily News, a government-owned daily newspaper, there appeared an account, among others, to the effect that the then Minister for Home Affairs had sacked twenty eight officials of the Immigration Department, including the applicant, for receiving bribes. Upon making inquiries about this story with his superiors the applicant was informed tha the story was essentially false as, among other things, the Minister lacked power in law to make the reported decision. About two months later -- on 4 August 1995, to be

more precise -- the applicant received a letter addressed to him by the Acting

Principal Secretary (Establishments), whose body reads, in Swahili, as follows: B

`Ninapenda kukurifu kwamba, Mtukufu Rais, amekustaafisha kwa Manufaa ya

Umma kuanzia tarehe 20 Julai, 1995. Amekustaafisha kwa mujibu wa Kifungu Na

36(2) cha Katiba ya Jamhuri ya Muungano wa Tanzania ikisomwa pamoja na

`Standing Order' Na. F35, 44 na. C 49(c), Kifunga Na. (f) cha Sheria ya Malipo ya

Pensheni Sura (371); Kanuni za Utumishi Serikalini 1970 Kanuni Na. 29(2) na Sheria

ya Utumishi Serikalini Na 16 ya mwaka 1989 Kifungu Na. 19(3). D

2. Aidha, kutukana na uamuzi huu wa kukustaafisha kwa Manufaa ya

Umma, utalipwa Pensheni kwa utumishi wako Serikalini hadi tarehe 20 Julai, 1995.'

D

Speaking through his advocate, Mr Nassoro, the applicant says that the President's

decision to retire him in the public interest is invalid in law and ought, therefore, to

be quashed by this court. Mr Songoro, Senior State Attorney, opposed E the

application.

Before dealing with counsel's submissions, it is necessary, I think, to quote in extenso

the provisions of law relied upon by the President in reaching his F impugned

decision. As expected, I will start with s 36(2) of the Constitution of the United

Republic (hereinafter referred to as `the Constitution'). The section reads:

`(2) Subject to the provisions of this Constitution and of any relevant written

law, the power to appoint persons to offices in the public services of the United

Republic, and the power of promotion, termination of appointment, dismissal and

disciplinary control of persons G appointed to those offices shall be exercised by the

President, the service commissions and such other authorities as may be specified in

respect of any office or category of offices by this Constitution or any relevant written

law.' H

Section 8 of the Pensions Ordinance (the Ordinance), as amended by s 6 of the

Pensions Laws (Miscellaneous Amendments) Act, 1978, provides:

`8 Subject to the provisions of s 9A, no pension, gratuity or other allowance

shall be granted under this Ordinance to any officer except I

1997 TLR p6

SAMATTA JK

A on his retirement from the public service in one of the following cases:

(a) on or after attaining the age of fifty:

Provided that in respect of

(i) officers in the Police Force of the rank of Constable and officers

[in] the Prison Service, at the rank of Prison Officer Grade III, this paragraph shall

have the effect as if `forty years' were substituted for `fifty years'; and B

(ii) officers in the Police Force above the rank of Constable and of

or below the rank of Sergeant and officers in the Prison Service above the rank of

Prison Officer, Grade III and of or below the rank of Prison Officer, Grade I, this

paragraph shall have the effect as if `forty-five years' were substituted for `fifty

years'. C

(b) in the case of transfer to other public service, in circumstances in

which he is permitted by the law or regulations of the service in which he is last

employed to retire on pension or gratuity: Provided that, if his service is

superannuated under the Federated D Superannuation System for universities or

similar insurance scheme, he has retired from the public service on one of the

grounds mentioned in paragraphs (a), (c), (d), (e) and (f) of this section;

E (c) on the abolition of his office;

(d) on compulsory retirement for the purpose of facilitating improvement

in the organisation of the department to which he belongs, by which greater

efficiency or economy may be effected;

F (e) on medical evidence to the satisfaction of the appropriate authority that

he is incapable by reason of any infirmity of mind or body of discharging the duties of

his office and that such infirmity is likely to be permanent;

(f) in the case of removal from the public service in the public interest as

provided in this Ordinance;

G (ff) if he retires from the public service with the consent of the President,

and the President, by writing under his hand, declares that this paragraph shall apply

to him;

(g) on retirement in circumstances, not mentioned in the preceding

paragraphs of this section, rendering him eligible for a pension under the Pensions

(Governors of Dominions, etc) Acts, 1911 to 1947, of the United Kingdom or any Act

amending or replacing those Acts: H

Provided that a gratuity may be granted to a female officer in accordance with

the provisions of this Ordinance, who retires for the reason that she has married or is

about to marry, notwithstanding that she is not otherwise eligible under this section

for the grant of any pension, gratuity or other allowance.' I

1997 TLR p7

SAMATTA JK

Section 19 of the Civil Service Act, 1989, a legislation which repeals and replaces A

the Civil Service Act, 1962 (Cap 509), is in the following terms:

`19-(1) The power to dismiss and to terminate the appointment of civil

servants shall be exercised in accordance with the provisions of this section. B

(2) The power to dismiss shall not be exercised unless --

(a) a disciplinary charge is preferred against him;

(b) he is afforded an adequate opportunity to answer the charge, and

(c) an inquiry is held into the charge in accordance with regulations made

under s 24. C

(3) The President may remove a civil servant from the service of the Republic

if he considers it in the public interest so to do.

(4) Nothing in this section shall be construed as restricting --

(a) the compulsory retirement of any person under section 10 or in the

paragraph (c), (d) or D (e) of section 8 of the pensions Ordinance, or under the

provisions of the Tanganyika (Compensation and Retiring Benefits) Order in Council,

1961, or Retirement (Special Provisions) Act, 1962, or sub-section (2) of section 17 of

the Republic of Tanganyika (Consequential, Transitional and Temporary Provisions)

Act, 1962; or

(b) The termination, otherwise then by dismissal, of the service of any

public officer, other E than the substantive holder of a pensionable office, in

accordance with the terms of his employment, or the dismissal of any person from

any office on the personal or domestic staff of the President or of any person holding

an office the emoluments of which are payable at an hourly or daily rate. F

(5) Nothing in sub-section (1) or (2) shall apply to the dismissal of a civil

servant who is an employee to whom the provisions of Part III of the Security of

Employment Act, 1964, shall apply.

(6) Nothing in subsection (1), (2) or (3) shall apply in relation to any person

holding the office of Controller and Auditor -- General.' G

I must now proceed to quote Regulation 29 of the Civil Service Regulations, 1970 (the

Regulations). The Regulation reads:

`29-(1) Where the Principal Secretary is of opinion that a reason exists why an

officer serving H on pensionable terms and who has attained the normal age of

voluntary retirement, should be called upon to retire otherwise than on disciplinary

or on medical grounds, the Principal Secretary may request the officer concerned to

show cause why he should not be compulsorily retired. The Principal Secretary shall

forward any representations made by the officer, pursuant to the notice given to him,

together with his own recom- I

1997 TLR p8

SAMATTA JK

A mendations to the appointing authority, who shall decide whether or not such

officer should be called upon to retire.

(2) Where a Principal Secretary is of the opinion that the President should be

invited in the exercise of the powers conferred upon him by subsection (3) of section

20 of the Act [the Civil Service Act, 1962], to consider the removal of an officer in the

public interest, the Principal B Secretary shall furnish to the President through the

Principal Secretary (Establishments) such particulars as the President may, from time

to time, by general or specific direction, require.'

C Standing Orders F 35, 44 and 49 for the Public Service, 1971, read as follows:

Standing Order F 35

`F 35 All appointments at the pleasure of the President. -- Excepting Judges of

the High Court and the Controller and Auditor-General whose tenure of office is

governed by the terms of the Interim Constitution of Tanzania, all other officers hold

their respective offices subject to the D pleasure of the President of the United

Republic. The pleasure of the President that any one of these officers should no

longer hold it, may be signified through the Principal Secretary (Establishments) in

which case no special formalities are required.' E

Standing Order F 44

`F 44 Removal in the public interest. -- The president may remove a civil

servant or police officer from the public service if he considers it is in the public

interest to do so otherwise than for the purpose of localization of the public service.

The decision of the President that an officer F be removed from the service in the

public interest may be signified through the Principal Secretary (Establishments) in

which case no special formalities are required. The question of pension will be dealt

with in accordance with the relevant provisions of the Pensions Ordinance (Cap

371).'

G Standing Order F 49

`F 49 Grounds for retirement on pension and/or gratuity under the Pensions

Legislation. -- The Pensions Act (sic), (Cap 371) and the Regulations made

thereunder, set out the circumstances under which a pensionable officer may elect to

retire or may be called upon to retire others than on disciplinary grounds. These

grounds are summarised below: H

(a) on or after attaining the age of 45 years:

Provided that an officer of the rank of Constable in the Police Force or

an officer of the rank of Prison Officer Grade III in the Prisons Service may elect to

be called upon to retire after he has attained the age of 40 years; I

1997 TLR p9

SAMATTA JK

(b) on the abolition of his office; A

(c) for purpose of facilitating improvement in the organisation of the

Department to which he belongs by which greater efficiency or economy may be

effective;

(d) on medical grounds;

(e) female officers may elect to retire on marriage, and will be granted

such gratuity or pension, if any, for which they may be eligible.' B

Those are the provisions upon which the President, according to the letter addressed

to the applicant by the Principal Secretary (Establishments), quoted C above, based

his impugned decision. I will now proceed to deal with the contentions addressed to

me by counsel. I hope I can summarise those contentions very briefly without doing

any injustice to them. In his engaging argument Mr Nassoro contended that the

President's decision is invalid for the following reasons: (a) the basis for the decision is

vague because the provisions of D law relied upon therein deal with matters of

employment which are incompatible; (2) the Standing Orders referred to in the

Principal Secretary's letter have no force of law as there were declared by this Court

(Mwalusanya J) in James F Gwangilo v Attorney-General, (1) to have been superseded

by the Constitution and the Civil E Service Act, 1989; and (3) the failure by the

President to give reasons for his decision is fatal to the said decision: the President

was found in law to disclose to the applicant the factor or factors which, in his

opinion, constituted the alleged public interest. Mr Songoro urged me to hold that the

President's decision is F proper and in accordance with the law of the land. He

forcefully contended that the paramount words in the Principal Secretary's letter, as

far as the reason for the President's decision is concerned, are the words

`amekustaafisha kwa Manufaa ya Umma'. According to the learned Senior State

Attorney, the Applicant had no G right in law to be given more information than

that. Counsel urged me to hold that the President acted within his powers, and the

procedure he applied was correct and sufficient. It seems to me that it is desirable, if

not necessary, that some of the general principles which I consider to be relevant to

the determination of the application now before me should be distinctly set out. In

my opinion, the following are those principles: H

(1) The common law principle that a civil servant is dismissible at pleasure

(see Shenton v Smith (2) and Gould v Stuart (3)) is not part of the law of this country:

see s 36(2) of the Constitution as I

1997 TLR p10

SAMATTA JK

A read together with s 26(1) of the said Constitution, and James F

Gwangilo's case supra. In this country, civil servants are dismissed for misconduct

only: see s 19(2) of the Civil Service Act, 1989. When a civil servant is dismissed cause

must be assigned. The English common law doctrine of `service at pleasure' has, as, I

hope, amply B demonstrated above, no place in the law of this country. The saying

`Whatever pleases the emperor has the force of law' forms no part of our law.

(2) While in England the courts are not concerned with the Civil service as

such, because the civil servant there is in law only a servant of the C Crown,

dismissible at the pleasure of the Queen without notice or compensation, in Tanzania

the civil servant has some legal rights, including the right to be afforded an

opportunity to show cause why he should not be dismissed from the service, which

are enforceable in the courts.

D (3) No power conferred by law on a public leader or officer is absolute or

limitless. Every such power must be exercised in good faith and in accordance with

the Constitution and other laws. Any assertion that presidential powers brook no

limitation would have no basis in law.

E (4) Compulsory retirement of a civil servant or his removal from service in

the public interest may be challenged in this Court on, among others, any of the

following grounds:

(a) the legislation under which the impugned decisions was made is

unconstitutional;

F (b) the decision is mala fide ie, it is actuated by malice or some

purpose other than that for which it is authorised by the law: malice would be held to

exist where, for example, the alleged public interest, where removal is concerned, is

founded upon non-existent facts;

G (c) the decision is perverse, that is to say, one which no responsible

man would have made.

(5) The Standing Orders for the Public Service have no legislative effect;

they are meant for departmental and administrative purposes: see IG Lazaro v

Josephine Mgombera (4). Those Orders form the internal law of the Civil Service. H

Having stated these principles, I proceed to ask myself whether the impugned

decision of the President is not valid in law. My mind is free from doubt as to how

that question ought to be answered. I agree with Mr Nassoro that the President's

decision is unsupportable in law. I hold that view for the following reasons: I

1997 TLR p11

SAMATTA JK

(1) The letter from the Principal Secretary cites provisions of law which

are A incompatible, that is to say, provisions which do not go together. Whereas the

removal of a civil servant from service under s 8(f) of the Ordinance, s 19(3) of the

Civil Service Act, 1989, reg 29(2) of the Regulations and Standing Order F44 is based

on the general requirement of public interest, the removal under Standing Order F

49(c) must specifically be based on the need of, to quote the Order, B `facilitating

improvement in the organisation of the Department to which [the civil servant]

belongs by which greater efficiency or economy may be effective'. By being based on

the two sets of provisions the President's decision has, I agree with Mr Nassoro,

caused the applicant considerable embarrassment. C

(2) The citation, in the Principal Secretary's letter, of Standing Order F 35

as being one of the legs on which the President's decision was intended D to stand

suggests, very strongly, that in making, or coming to, his decision the President was

under the mistaken belief that the applicant held his office in the Immigration

Department at his (the President's) pleasure. I have, I hope, sufficiently demonstrated

that in this country civil servants, including immigration officers, do not hold office

at the pleasure of the President. It is perfectly correct to say that a civil E servant's

security of tenure is lesser than that of a judge, but it is equally correct to observe that

that security is not as limited as is implied by the Principal Secretary's letter. Standing

Order F 35 cannot be valid in law, because it is inconsistent with the provisions of ss

22 and 36(2) of the Constitution as read together with s 11(1) of the said Constitution.

F

(3) No provision of law speaks of retirement of a civil servant in the public

interest. Neither s 19 of the Civil Service Act, 1989 nor reg 29 of the Civil Service

Regulations, 1970, confers on the President power to retire a G civil servant in the

public interest. The provisions speak of removal, and not retirement, in the public

interest. It is not of little interest to point out that even Standing Order F 44 does not

speak of retirement. It speaks of removal. Paragraph (d) of s 8 of the Ordinance refers

to compulsory H retirement for the purpose of facilitating improvement in the

organisation of the department to which the servant belongs, by which greater

efficiency may be effected. Neither what is stated in the Respondent's counteraffidavit

nor what fell from the lips of Mr Songoro at the Bar during the hearing of

the application gives even a faint suggestion that the pur- I

1997 TLR p12

SAMATTA JK

A ported termination of the applicant's employment falls under one of the

categories of compulsory retirement mentioned in s 10 of the Ordinance, as amended

by s 7 of the Pensions Law (Miscellaneous Amendments) Act, 1978. When all this is

taken into account, it must be correct to say, as I do, that the use of the word

`amekustaafisha' in the Principal Secretary's letter to the applicant causes even more

confusion B as to exactly why the President acted in the manner he did with regard

to the applicant's employment.

C Since I am of the settled opinion that the above three grounds constitute a

sufficient warrant for faulting the President's decision, I do not find it necessary to

consider Mr Nassoro's argument that, when ordering the removal of a civil servant

from public service in the public interest, the President is bound in law to give

reasons disclosing factors which, in his opinion, constituted public interest in the D

particular case. In James F Gwagilo's case supra, Mwalusanya J was of the clear

opinion that such reasons made be given. Thought the point is not an uninteresting

one, I do not for the reason I have given, think it right to lengthen this ruling by

discussing it.

E Before I part with this application, I would like to say a word or two on the true

application of the provisions of s 23 of the Civil Service Act, 1989. The section reads:

F `23 -- (1) No proceedings shall be brought in any court on ground only that

the provisions of this Act, other that the provisions of sub-section (2) of section 3 and

Part V, have not been complied with; but nothing in this section shall apply to any

criminal proceedings for an offence against any of the provisions of this Act.

(2) The question whether --

G (a) The President validly performed any function conferred on him by

section 36 of the Constitution or by this Act;

(b) the Commission or other delegate has validly performed any functions

the exercise of which has been delegated or deputed to it or him, shall not be

enquired into by or in any court, subject to the provisions of sub-section (3).

H (3) Where a person is dismissed, the provisions of sub-section (2) shall not

apply in relation to that dismissal unless prior to the dismissal, the provisions of

section 19(2) are complied with.'

I was inclined to think that I was not deterred by these provisions from entertaining

the instant application. In my opinion, those provisions do not take away the

supervisory jurisdiction of this I

1997 TLR p13

SAMATTA JK

Court where it is alleged, as is the case in the present application, that a decision A

made by the President under s 36 of the Constitution and the provisions of the Civil

Service Act, 1989, is invalid in law. As I understand the law, if a decision purportedly

made by an authority which falls under the supervisory jurisdiction of this Court is

challenged on the ground that it is not valid in law or it is null and void it becomes

the bounden duty of the Court to hear the aggrieved party. It must be B distinctly

understood, however, that this Court's supervisory jurisdiction is one of supervision

and not of appeal or revision. When it exercises that jurisdiction this Court does not

sit as a super-executive. Thus, when it issues an order of certiorari C the Court does

not substitute another order in the place of the quashed order, but it removes that

order out of the way, as one which should not be used to the detriment of any

individual: see Walsall Overseers v Railway Company (5) at 39. Where an authority

exceeds its jurisdiction, its decision will be regarded by the courts as invalid in law

and beyond the protection of any exclusionary formula: see Anisminic v Foreign

Compensation Commission (6). Parties to disputes as to legal rights must have access

to legal tribunals for the settlement of those D disputes.

For the reasons I have given, I hope not at an inordinate length, I allow the

application and quash the President's decision purporting to retire the applicant in the

public interest. The respondent is to pay the applicant's costs in the E application.

1997 TLR p14