By FAUSTINE KAPAMA-Judiciary
THE efforts by former employee with National Audit
Office Henry Kitambwa, opposing decision of the President of the United
Republic of Tanzania to endorse his dismissal from employment services for allegedly
embezzlement of over 123m/- public funds have hit snags.
This follows the decision of the Court of Appeal to
“strike out” for being incompetent the appeal under which Kitambwa, the
appellant, had lodged to oppose the findings of the High Court, which had ruled
in favour of the President, National Audit Office and the Attorney General, the
respondents.
Justices Mwanaisha Kwariko, Zepharine Galeba and Patricia
Fikirini ruled that the appeal was incompetent for missing a reply from the
Registrar of the High Court a letter wrote by the appellant, requesting for
copy of proceedings in compliance with Rule 90(1) of the Tanzania Court of
Appeal Rules.
“In the event, this appeal which is incompetent for
being time barred is hereby struck out together with all documents composing
the record of appeal, the notice of appeal inclusive,” they declared.
During hearing of the appeal, the parties had
conceded to the error, but the counsel for the appellant had invited the court
to, among others, strike out the incompetent appeal and leaving the notice of
appeal surviving due to the unique nature of the matter.
He had also forcefully pushed for staying the appeal
pending the appellant taking appropriate remedial measures to rectify the
situation. In their ruling, however, the justices found that the counsel could
not cite to them any rule upon which they could rely to grant such an order.
They were of the view that the counsel could have
relied on rule 96(7) of the Rules, which vests jurisdiction in the Court to
order filing of a supplementary record of appeal to include documents which are
either in existence but not included in the record, or presently included but
have defects to rectify.
“However, in the present case, the letter in respect
of which we were moved to stall the appeal in abeyance does not fall in either
of the two categories. The present status is that the letter is nonexistent,”
the justices said.
They could not think, under the circumstances, that
was lawful or even logical to make an order staying the appeal indefinitely
waiting for unspecified processes and activities that might lead to procurement
of a document that is non-existent.
“In the circumstances, with respect to the counsel
for the appellant, we are afraid, we cannot order stay of this appeal which,
even for the appellant it was submitted to be, and correctly so in our view,
incompetent,” the justices said.
Regarding the question of surviving the notice of
appeal, they noted an assertion that the appellant was called on his private telephone
to go to the High Court and collect the documents his advocates had requested
in writing.
According to the justices, the assertion was made
before them from the bar, thereby falling short of the necessary authenticity
that was expected in the circumstances.
“In our view, the only reliable authority that could
have confirmed that the appellant was called by officials at the High Court
would have been the Registrar of High Court who had statutory duty to inform
the appellant by way of a letter that a copy of the proceedings was ready for
collection,” they said.
The justices pointed out also that there was no
evidence that the appellant collected the documents from the High Court in the
normal course of business and had that been the case, there would be at least a
receipt acknowledging payment of court fees in respect of the documents
received.
“Invariably, the position of the law where an
incompetent appeal is struck out for whatever might be the reason, the Court
has persistently maintained that the notice of appeal that initiated the
appeal, suffers consequences of equal measure as the appeal,” they said.
Henry Kitambwa, the appellant, was dismissed from employment
by the National Audit Office on February 20, 2017 on a charge of embezzlement
of public funds amounting to 123,330,000/-. He was aggrieved by his dismissal
from employment and appealed to the Public Service Commission.
However, his appeal was dismissed on July 25, 2017.
Once again, the appellant was dissatisfied with the dismissal of his appeal
before the Commission. He lodged the second appeal before the President, but
like with the Commission, he was still unfortunate, for his appeal was dismissed
on January 11, 2018.
That decision aggrieved the appellant. This time he
resolved to approach the court system to seek judicial review in his quest to
challenge the President's decision. He first applied for leave to apply for
prerogative orders and ultimately, he managed to file an application in the
High Court.
Before the High Court, the appellant prayed for
issuance of an order in the nature of certiorari to quash the decision of the
President. Nonetheless, the appellant was still unlucky. The High Court
dismissed his application on December 19, 2019.
The High Court ruled that the President contravened
no law in the course of dealing with the appellant's appeal. This decision like
several others preceding it deeply aggrieved the appellant. It was at that
point in time when the appellant crossed over to the Court of Appeal.
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