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Quartet lose examination results appeal

FOUR students at St John's University of Tanzania in Dodoma have lost their appeal they had lodged to challenge nullification of some examination results.

The third-year Bachelor of Science Degree (Education) quartet includes Arbogast Arstides, Hello Peter, John Onesmo and Grace Daniel.  

This followed the decision of the Court of Appeal given recently to "strike out" the appeal under which the students, appellants, had lodged against the findings of the High Court, which had dismissed their application for judicial review on prerogative orders of certiorari and mandamus.

Justices ruled that the appeal in question was time barred as was filed beyond 60 days from April 12, 2018, which is the date when the notice of appeal was lodged as Rule 90 (1) of the Court of Appeal Rules stipulated to October 1, 2019, when the appellants finally filed their memorandum and record of appeal.

“In the upshot of reasons stated, we strike out this appeal for being time barred. We in the circumstances make no order for costs,” ruled the panel led by Chief Justice Ibrahim Juma as well as Justices Rehema Mkuye and Ferdinand Wambali in favour of the University, the respondent.

Prerogative Orders are orders issued by the High Court in exercising its supervisory jurisdiction over inferior or subordinate courts, tribunals, and public authorities through a process known as judicial review.

They include mandatory orders (mandamus), quashing orders (certiorari) and prohibiting orders (Prohibition).

Mandamus is a command issued from the High Court ordering the performance of a public legal duty. Mandamus is a discretionary remedy and courts assume a free discretion to grant them in suitable cases and withhold them in others.

Certiorari is used to bring up into the High Court a decision of some inferior tribunal or authority in order that it may be investigated.

If the decision does not pass the test, it is quashed, that is, it is declared completely invalid, so that no one needs to respect it.

During the hearing of the appeal session, counsel for the appellants Fred Kalonga had initially stuck in the argument that the appeal was filed within time because his clients spent considerable number of days applying for leave to appeal to the Court under section 5(i) (c) of the Appellate Jurisdiction Act.

He reckoned that since the ruling of the High Court, granting the appellants leave to appeal to the Court of Appeal was delivered on August 13, 2018, they were within the sixty-days when they filed their appeal on October 10, 2018.

Yet, when the justices pressed him to explain why failed to follow the procedure for obtaining a Certificate of Delay under Rule 90 of the Rules to enabled him lodge his appeal beyond the sixty days of filing of notice of appeal; he relented to concede that the appeal was filed out of the prescribed period.

Furthermore, the justices prodded the counsel to explain whether decisions of the High Court in judicial review proceedings under the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, require prior leave of the High Court in order to appeal to this Court.

The advocates replied that he was not sure, but he expressed his desire to know what guidance the justices could provide.

The counsel for the respondent Ally Nkhangaa had nothing to add, but he, too, was not sure whether leave to appeal was necessary before the appellants could file the appeal.

In their decision, the justices pointed out that it was clear to them that Rule 90 (1) of the Rules; mandatorily require civil appeals to the Court to be instituted by lodging memorandum and record of appeals within sixty days of the date when the notice of appeal was lodged.

“We must also point out that the so many days, which Mr Kalonga wasted, while applying for leave to appeal to this Court, did not suspend the counting of the period of sixty days prescribed by Rule 90(1) of the Rules,” they said.

The justices explained that the period was wasted because jurisprudence of the Court is settled that no leave to appeal to the Court is required against the decision of the High Court in exercise of its prerogative powers under Law Reform (Fatal Accidents and Miscellaneous Provisions) Act.

On August 4, 2015, the appellants sat for a final examination in Statistical Mechanics. When the results came out in September 2015, they had passed.

However, their celebration did not last long. By a letter of November 12, 2015, the appellants' results were nullified over alleged examination irregularities.

The appellants were directed to retake the exam, which they did on November 30, 2015. But when the results from the retaken examination came out, Arstides and Onesmo were discontinued from studies.

In their pleadings, they also complained that their letter to the University Senate Chairman seeking for reasons behind their discontinuation received no response.

Their further efforts to resolve this dispute by engaging both the Dean of Faculty of Natural and Applied Sciences and Deputy Vice Chancellor (Academic) of the respondent also proved futile.

 In so far as the appellants were concerned, they had exhausted remedies within the respondent university system before they opted to apply for prerogative orders of Certiorari and Mandamus in the High Court.

On April 19, 2016 the appellants filed chamber summons in the High Court at Dodoma for prerogative orders of Certiorari and Mandamus to issue against the decision of the respondent which nullified their examination results in Statistical Mechanics, which prevented the appellants from graduating.

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Author: FAUSTINE KAPAMA

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