In support of the application is the affidavit sworn by Jonathan Magezi Rwijage,
Legal Officer of the University of Dar-es-Salaam. From the facts as laid before me in this application, the matter arises from the
decision of the High Court (Mihayo, J.) in Misc. Cause No. 90 of 2001 of 27th march, 2006. The respondents, Edmund A. Mwasaga and 4 Others were undergraduates of the University of Dar-es-Salaam. While sitting
for examination, it was alleged that the respondents were found with unauthorized material. Consequently, upon recommendation of
the Examination Committee, the Senate of the university endorsed the decision to discontinue the respondents from studies. The decision
prompted the respondents to seek remedy from the High Court by way of prerogative orders of certiorari. The application was allowed
resulting in the order of certiorari being issued. Consequently, the decision of the Senate of the University of Dar-es-Salaam of
5.8.1998, ordering the discontinuation of the respondent students was quashed and set aside. The applicant, the Senate of the University,
was dissatisfied, so notice of appeal against the High Court decision was filed. Pending the determination of the intended appeal,
this application for stay of execution was lodged.
Mr. Mzava, learned counsel, from the Tanzania Legal Corporation, appeared in this
application for the applicant and Mr. Magesa, learned counsel, advocated for the respondents. In support of the application, Mr.
Mzava made submissions to the following effect. On the balance of convenience and common sense, stay of execution should be granted
because the matter involved is of public interest. If stay of execution is not granted, the University would fail in maintaining
academic standards, it would loose its reputation by admitting students without approved academic standards contrary to laid down
University regulations and procedure. There is a procedure to be followed in reinstating students who were discontinued from studies.
If execution is effected before the determination of the appeal it would amount to taking a short cut in readmitting students to
the University. Granting stay of execution would enable the University authorities to sort out the matter in terms of the laid down
procedure for the reinstatement of students such as the respondents. The loss which the University would suffer is not monitary but
is in relation to falling academic standard and reputation of the University.
Furthermore, the decision of High Court, subject of the intended appeal, is legally
problematic. The matter arises from High Court Misc. Cause No. 59 of 1998 in which the prerogative order of certiorari was granted
irregularly. As the order granted was a nullity, there was nothing valid which could be vacated or amended. This is an important
point of law for the determination of the Court of Appeal. Mr. Mzava referred to the cases of The University of Dar-es-Salaam v. Richard Kajuna Muzo, Civil Application No. 125 of 1993 and Victor Andrea v. Senior District Magistrate and Michael John, Civil Application No. 125 of 1993 (both unreported).
Mr. Magesa, strongly opposing the application submitted that there is no basis upon
which stay of execution could be granted. He said the guiding principle of balance of convenience and common sense is not applicable
in this case because the University would neither be inconvenienced in any way nor would it incur any loss by reinstating the students,
the respondents. Counsel further submitted that the question of lowering academic standards at the University would not arise because
the students had been cleared by the order of certiorari. Refusal by the University Senate to reinstate the students after the court
decision amounts to the University not respecting court decision, Mr. Magesa charged. He also said that there is no provision in
the University of Dar-es-Salaam Act, 1970 which bars students from access to court seeking remedy after they were discontinued from
studies. After all, he said, there are other past incidents in which students have been reinstated following court orders.
Mr. Magesa also submitted that on the contrary, in this case it is the students,
the respondents, who are inconvenienced by the long suspension since 1998. Therefore, he said the balance of convenience tilts in
favour of the respondents if stay is not granted.
Relying on the cases of Tanzania Cotton Marketing Board (supra) Nicholas Nere Lekule v. Independent Power (T) Ltd. and 4 Others (1997) T.L.R. 58 he contended that no substantive loss has been shown that the applicant, the University, would suffer if stay is
not granted. He also strongly urged that there were no prospects of the appeal succeeding because, the claim that proceedings in
Misc. Cause No. 59 of 1998 were a nullity has no legal foundation. He pointed out that the same point was raised before the High
Court but was rejected. Mr. Magesa also pointed out that unlike the case of Victor Andrea (supra) the proceedings in this case were not rendered a nullity on account of the Attorney Generalfs default in appearance
during the proceedings. There is therefore no legal point worth consideration of the Court of Appeal, Mr. Magesa insisted. After
effecting the amendment to implead the Attorney General the matter proceeded in the normal manner to finality.
Mr. Magesa went further to submit that the intended appeal stood no chances of success
because as found in the High Court, the question of bias on the part of Prof. Penina Mlama was beyond question. She presided over
the Committee which recommended the suspension of the respondents to the Senate which she also chaired as well. All in all, Mr. Magesa
urged that there was no merit in the application which should be dismissed.
The central issue in this application is whether there are special circumstances
upon which the Court could exercise its discretion to grant stay of execution. I desire to deal first with Mr. Mzavafs contention
that stay of execution should be granted because the matter involved is of public interest. That if stay is not granted, the University
risks loosing its reputation and that it would fail to maintain its standard by admitting students of below the approved standards.
With respect, I do not accept this contention. The question of the students, the
respondents, not being of approved standard is neither relevant nor did it in any way arise in this case. The students were not discontinued
from studies because they were not of approved academic standard. Rather, they were discontinued because of misconduct when sitting
for examination. It was alleged that they were found with some material at the time. I therefore reject Mr. Mzavafs contention
that if stay of execution is not granted the University would be admitting students of no proved academic standard.
Next, I shall deal with the main ground which was canvassed by Mr. Mzava extensively.
He urged that on balance of convenience and common sense the circumstances of the case are such that the court should exercise its
discretion to grant stay of execution in favour of the applicant. As held by this Court in a number of cases ? see for instance,
Tanzania Cotton Marketing Board and Nicholas Nere Lekule (supra) one of the factors to be considered in deciding to grant stay of execution is whether irreparable loss would be sustained
if stay is not granted. In this case, it is to be pointed out at once that the loss involved is not in monitary terms. What is at
stake is the implication of granting or otherwise of stay of execution with regard to the academic welfare of the University.
The crux of the matter is that what led to the respondents being discontinued from
studies was that the respondents were found with unauthorized material while sitting for examination. Apparently, this aspect was
not dealt with in the High Court. Neither was it alluded to by counsel for both parties in this application. What was extensively
dealt with was that there was bias. In that situation, I take it that it was not controverted. While counsel are at one with each
other on the point that there is laid down procedure for reinstating students at the University, the issue is on how to strike a
balance. That is, on one hand, the implication of executing the order of the court to reinstate the respondents who had flouted the
University rules governing examinations. On the other, complying with the court order without creating a precedent for students found
floating examination regulations resorting to court for reinstatement in disregard of the regulations. This, if not properly balanced
would not augur well for an academic institution. Possibly, it is because of this apprehension that Mr. Mzava submitted that students
of lower academic standards would be readmitted. I rejected it on account of its faulty reasoning. Otherwise, I agree that the fear
of creating a precedent in this regard is real.
In the circumstances, in view of the uncertainties and implications of immediate
execution of the High Court order, I think on balance of convenience and common sense, granting of stay of execution would be in
the interest of justice. Stay of execution pending the determination of the appeal would give time to the applicant to sort out the
position on how to go about the matter after the court order. With the decision of the Senate quashed and set aside, still the recommendation
of the Disciplinary Committee remains without a valid approval of the Senate. How to proceed from there is what is at stake I think.
On balance therefore, stay of execution is desirable.
Reinstating the respondent students, before the appeal is heard and then in the event
the appeal is successful to have them sent away as Mr. Magesa suggested, is, to say the least, even more inconvenient to the students
and the University as well. It is better in my view to hold back until the matter is finally decided one way or the other on appeal
when, with certainty, the respondents would either reinstated or not. As said before, in the circumstances, the balance of convenience
tilts in favour of granting stay of execution.
Furthermore, there is another legal aspect which may well be considered on appeal.
On this Mr. Mzava, learned counsel has persistently maintained that the order of the High Court, Msumi, J.K. (as he then was) of
31.7.2001 amending the Chamber Summons was legally irregular. This is so, he said because, the previous proceedings in which the
Attorney General was not summoned were, by law, a nullity. There was therefore, nothing in law which could be amended or vacated.
He relied on the Courtfs decision in Victor Andrea (supra).
There is no denying the fact that under the law, Section 17A (1) of the Law Reform
(Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) if the Attorney General is not summoned, the proceedings are rendered
a nullity. In Victor Andrea, (supra) this court stated so. In the instant case, if in the matter before Msumi J.K. in which the prerogative order of certiorari
was granted, the Attorney General was not summoned, the proceedings were a nullity. In that case, on the face of it, this it seems
to me is a point worth consideration of the Court. The issue is, whether the subsequent proceedings by the High Court vacating the
order granting leave and the amendment of the Chamber Summons resulting in the granting of leave were properly founded in law. Depending
on how this issue is resolved on appeal, the very decision in which the order of certiorari which quashed the decision of the Senate,
may well have no leg on which to stand. That is the aspect for the full Court to consider on appeal. I need not go further in this
aspect at this stage. However, for the matter before me I am inclined to think it is sufficient ground warranting the courtfs
discretion to grant stay of execution.
For these reasons, I am increasingly inclined to grant the application as prayed.
Accordingly, it is ordered that the execution of the order of the High Court in Misc.
Civil Cause No. 90 of 2001 of 27th March, 2006 be stayed pending the determination of the intended appeal.
Costs of the application to abide the results of the appeal.
DATED at DAR ES SALAAM this 9th day of May, 2006.
.RTF of original document