IN THE HIGH COURT OF TANZANIA (DARE S SALAAM MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 36 OF

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1 IN THE HIGH COURT OF TANZANIA (DARE S SALAAM MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 36 OF WINSTON MABAGARA 2. NYANGINDU MARTINE 3. MOFEST AUGUSTINE APPLICANTS 4. GEORGE DENIS 5. MULOKOZI ELIGIUS 6. ISSA HAMISI & 411 OTHERS VERSUS 1. THE PRINCIPAL INSTITUTE OF SOCIAL WORK 2. EXECUTIVE SECRETARY, THE NATIONAL COUNCIL FOR TECHNICAL EDUCATION 3. MINISTER MINISTRY OF EDUCATION AND VOCATIONAL TRAINING 4. THE ATTORNEY GENERAL Date of last order 18/6/2008 Date of Ruling 20/6/2008 The applicants who are finalist students at the Institute of Social Work are by this application on their own behalf and on behalf of 411 or so other students, seeking an Interim order to

2 restrain the 1st respondent herein, the Principal Institute of Social Work, from collecting dissertations and issuing final examinations from and to the applicants herein respectively pending the determination of intended proceedings for prerogative orders. The application which is filed under a certificate of urgency is brought under the provisions of Order XXXVIIRule 1 (a) and section 95 of the Civil Procedure Code, (Cap. 33 R.E. 2002) and is supported by a joint affidavit deponed by the six applicants. The six applicant were on 6/06/2008 duly granted leave to file proceedings in a representative capacity on their own behalf and on behalf of 411 students and to apply of orders of Certiorari, Mandamus and Prohibition against certain decisions of the 1st and 2 nd respondents relating to the academic grade known as "Advanced Diploma NTA/7' appearing in the 1st respondent's academic prospectus of 2006/ /2008. The Institute of Social Work is established by Act of Parliament with mandate to conduct training in social work and other related disciplines. The applicants were admitted for training in the Institute in the 2005/2006 academic year. According to the affidavit evidence of the applicants they were officially registered at the Institute as students on 3/10/2005 at a time when the award known as Advanced Diploma had been already abolished under G.N. No. 223 of 5/08/2005. The applicants assert that while they were trained for the new NTAlevel

3 courses leading to the new NTALevel 7 and 8 awards, for the last two years, the 1st respondent intends to subject them to final examinations in accordance with the old course Programme for the Advanced Diploma instead of the new NTALevel 7 and 8. In para 13 of the applicants' affidavit it is stated that the 1 st respondent intends to collect dissertations which form part of the examinations and may do so to the detriment of the applicants unless restrained by a court order and that the examinations are set to begin on 23/06/2008. The four respondents have resisted the application by counter affidavit. In the affidavit evidence of the 1st respondent it is stated that the applicants applied and were admitted and trained for the Advanced Diploma Course. In the counter-affidavit deponed by Timon Vitalis, learned State Attorney on behalf of the 2 nd, 3 rd and 4 th respondents it is stated that G.N. No. 223 did not abolish the award of Advanced Diploma, and that the applicants were registered for the Advanced Diploma Courses for which they were trained and examined for the past two years. In support of the application Dr. Mvungi learned counsel for the applicants submitted that going by the notice given by the 1st respondent, the applicants are required to submit their dissertations two weeks before the examinations which are

4 scheduled to begin on 23/06/2008, that if the dissertations are not submitted the students will not be able to pass the examinations, and that unless a restraining order is granted the applicants will fail in the examinations which could pre-empt the decision by this court on the intended application for Certiorari, Mandamus and Prohibition. Countering the submissions by Dr. Mvungi, Mr. Vitalis learned State Attorney for the 2 nd 3 rd and 4 th respondents submitted that no sufficient reasons have been advanced for the grant of a restraining order, that the applicants have not shown in what manner they will suffer loss if an injunction is not granted, that mere assertion about suffering irreparable loss is not enough and that an injunction if granted, is likely to adversely affect other final year students who have not signed the list authorising the 6 applicants to represent them in these proceedings, and who have a right to sit for the examinations. Mr. Vitalis has also in his submission taken objection to the application on preliminary points of law on a number of grounds. He asserted one, that O. XXXVIIRule 1 on which this application is based deals with property while this application does not deal with property rights, that section 95 which is also cited is only applicable where there is no enabling provision of the law, and finally that by virtue of the proviso under O. XXXVIIRule 1 of the CivilProcedure Code an injunction may not be granted against the government.

5 Mr. Ezekiel like Dr. Mvungi attempted to argue prematurely on the merits of the intended main application for the mentioned prerogative orders and basically submitted that there is no serious matter to be investigated and no evidence to show the nature of the irreparable loss the applicants are likely to suffer if they submit dissertations and sit for the examinations scheduled for 23/06/2008. As regards the preliminary objections while I agree with Dr. Mvungi that it is appropriate for preliminary objections on points of law to be raised at the earliest opportunity, I cannot accede to the view that objections on points of law cannot be taken in submissions. It is my view that save where it has been specifically provided in a given law, objections on points of law may be taken at any time, though it is, as stated herein, more appropriate if the preliminary objections are raised at the beginning, i.e. before the hearing of an application begins. However given the urgency and speed at which this proceeding has been prosecuted at the instance of Dr. Mvungi, the respondent's counsel has every reason to be excused for not filing a notice of preliminary objection prior to the hearing.

6 The contention that injunctions may not be granted against the government has no merit. This issue, whether this court has the power to grant injunction orders against the government, was discussed extensively in the case of Chavda V. The Director of Immigration Services and others (1995) T.L.T. 125 (HC), (Samatta, J.K. as he then was). Applying a decision of the House of Lords in M.V. Home Office (1993) 3 W.L.R.433 in which the House of Lords decided that the courts in England have the power to issue coercive orders, including injunctions against a government minister or department, his Lordship answered the issue in the affirmative. The court in the Chavda case held that the restriction on the issue of injunctions against the government does not apply to judicial review jurisdiction or prerogative orders proceedings which are instituted under the court's supervisory jurisdiction under section 18 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310. Admittedly section 95 of the Civil Procedure Code does not apply. However the contention that the application was wrongly brought under O.XXXVIIRule 1 of the CPC has no merit. Clearly the right to study and be examined for the course that the applicants enrolled for is a right to a decent future and a decent income which is clearly a property right. In any case this point requires evidence and cannot be disposed of by way of preliminary objection. The Chavda case (supra) also held that an interim injunction may be granted even pending hearing of an application for leave.

7 By analogy an injunction may be granted even when a main application has not been filed though leave has been granted. The preliminary objections are accordingly overruled. From the submissions by the respective learned counsel clearly they agree on one point that is, that the guiding principles to be considered in determining the prayer sought are those which were enunciated in the famous case of Atillio V Mbowe (1969) H.C.D. 284, which are that:- (i) There must be a serious question to be tried on the facts alleged and the probability that the. plaintiff or applicant will be entitled to the relief prayed for. (ii) The court's interference is necessary to protect the plaintiff from the kind of injury which IS irreparable before his legal right is established. It is incumbent upon the plaintiff to show that irreparable loss will result if no injunction is granted. (Hi) On the balance, there will be greater hardship suffered by the plaintiff than that will suffered by the defendant from the granting of it. Upon careful consideration of the affidavit evidence and respective arguments by learned counsel there is no doubt that the intended

8 application raises senous triable legal issues which deserve to be determined by the court. From the facts deponed by the applicants in their affidavit, some of which have not been substantially controverted by the respondents such as the contention about the inclusion in the respondent's academic prospects of 2006/ /2008 of the Advanced Diploma NTA/7, which allegedly does not have a legal basis, the circumstances are such that the court's interference is necessary to protect the applicants from being subjected to the requirement to submit dissertations and sit for examinations for a course they were allegedly not trained for before their legal rights are established, acts which may not only affect their final award but also their future(s). Unless an injunction is granted it seems to me that the applicants are bound to suffer irreparable damage. Both learned counsel for the respondents contended that it has not been shown sufficiently what irreparable damage the applicants will suffer if the restraining order is not granted. I disagree. What can be worse than the stress and anguish of being subjected to sitting for examinations for a course that one has not been trained for, the result of which would clearly be only failure and frustrations which at best could lead to the necessity to repeat the course or to undertake another course which would mean incurring more costs and time and at worst the applicants would be deprived of an award in the technical field which they were trained for, which could affect them mentally as well as their future earning capacities.

9 Indeed in my VIew should the order sought be refused the applicants are, on a balance, likely to suffer greater hardship than that will be suffered by the respondents if the injunction is granted. The contention that the other students who did not sign the list authorising the applicants to commence the proceeding would be denied their right to sit for the examinations if the injunction is granted is baseless and hearsay since the aforesaid students opted not to be parties to this matter even thought they are clearly aware of the instant proceedings. I am accordingly satisfied that this application has passed all the three tests set in the Attilio Vs Mbowe case. In the result the application succeeds and an interim injunction is hereby granted to restrain the 1st respondent herein from collecting dissertations and issuing final examinations from and to the applicants herein pending the determination of the intended proceedings for prerogative orders. I note that todate the application for the prerogative orders has not been filed, though leave was granted on 6/6/2008. I order that the main application be filed by 27/6/2008. I make no order as to costs. ~. ~ R.Sheikh ~ JUDGE 19/6/2008

10 20/6/2008 For the Applicants For the 1st Respondent For the 2 nd Respondent For the 3 rd Respondent For the 4 th Respondent Court: Ruling read on 20/6/2008 in the presence of Dr. Mvungi, Advocate for the Applicants and Mr. Ezekiel, Advocate for the 1st Respondent and in the absence of the 3 rd and 4 th Respondents. E. G. Mbise REGISTRAR HIGH COURT 20/6/2008