ABDULGADI SALEH

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA MISC. CIVIL APPLICATION NO. 26987/2023 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR PREROGATIVE ORDER OF CERTIORARI AND MANDAMUS AND IN THE MATTER TO CHALLENGE THE LETTER BEARING THE DECISION OF DODOMA CITY DIRECTOR OF 31/7/2023 IN DENYING THE APPLICANT OF THE BUILDING PERMIT AND AUTHORIZE ILLEGAL TAKING OVER OF PLOT NO. 44 BLOCK "5" IN MADUKANI AREA WITHIN DODOMA CITY COUNCIL BETWEEN ABDULGADI SALEH AL- SHABIBY "(Administrator o f the Estate o f SALEH AL-SHABIBY)............................................................. APPLICANT VERSUS DODOMA CITY COUNCIL RESPONDENTS THE ATTORNEY GENERAL RULING 19thJune, 2024 HASSAN, J. Under section 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 RE 2019] and Rule 5(1), 5(4) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial l Review Procedure and Fees) Rules, GN 324 of 2014 the applicant knocked this court's door seeking for prayers thus:- a) That, this honourable court be please dispense with requirement o f notice o f not less than ninety days o f intention to sue as the respondents after being served with the said notice are in process o f taking over the land and alter use o f the land contrary to law and without considering that applicant was declared the owner by the court o f competentjurisdiction. b) That, this honourable court be pleased to grant leave to the applicant herein to file an application for certiorari and mandamus to quash; set aside and compel the Dodoma City Director's decision o f taking over the applicants piece o f land in the above location. This exparte application is supported by an affidavit sworn by Mr. Samwel Mcharo, the learned counsel for the applicant. Before this application was set for hearing, the applicant prayed to withdraw the 1st limb of the application, thus, the prayer to dispense with the requirement of 90 days notice to sue the government since the notice had already been served to the respondents and had also matured. Thus, 2 the court granted the prayer and as well expunged paragraph 10 of the applicant's affidavit. When the exparteapplication came for hearing, the applicant was represented by Mr. Samwel Mcharo, learned counsel. The matter was ordered to be proceeded by way of written submissions. The applicant complied to the order of preference in filing his written submission. Submitting in support of the application, the applicant's learned counsel adopted his affidavit to form part of the submission in support of the application. He added that, the applicant is an administrator of the estate of the late Abdallah Al Shabiby who was the lawful owner of the land to wit Plot No. 44 Block 5 Madukani Area within Dodoma City Council. That, in 2009 a dispute between the applicant and the defunct Capitl City Development (CDA), now Dodoma City Council, the 1st respondent arose which led to Land Case no. 152 of 2009 which was at the DLHT for Dodoma at Dodoma. That, the same was due to the decision of the then CDA that the applicant's ownership in the suit land was cancelled and the land had been taken off for public interest. That, the DLHT declared the applicant to be the lawful owner of the suit land and the purported cancellation by the CDA was declared a nullity and illegal. He went on submitting that, the applicant then successfully filed for execution against the respondents, where the DLHT awarded the decree holder (the applicant) exclusive enjoyment of the suit land and barred the 1st respondent from interfering the suit land. That, the said Ruling is attached to the affidavit as Annexture A-l. That, the applicant through Miscellaneous Application No. 64 of 2022, made application to be handled over the suit land by the respondent and the same was granted, and the Ruling thereof is attached to the affidavit. That, after that, the applicant made follow ups to the CDA now the 1st respondent so as to obtain the building permit to no avail. That, surprisingly, on the 31st day of July, 2023 the applicant received a letter from the 1st respondent with reference No HJD/LD/21524/23 which informed him that the suit land has been taken off by Dodoma City Council through "Kamati ya Fedha na Uongozi" for public interest according to the program for developing the city of 1978, the decision made through a meeting held on the 20th day of July, 2023 as per annexture A-2 of the affidavit. The learned counsel went on submitting that the said decision has shown absolute negligence and lack of respect to the Rule of Law since the court has already nullified that decision and no appeal has ever been lodged by the respondent since then. 4 He submitted that, it is trite law that at this stage of application for leave to apply for prerogative orders, the applicant is required to show interest in applying for orders as it was laid down in Emma Bayo VS The Minister for Labour and Youths development & Others, Civil Appeal No. 79 of 2012 in which the court restated its decision in Attorney General Vs Wilfred Onyango @ Dadii & 11 Others, Criminal Appeal No. 276 of 2006 (Unreported). The applicant added that the decision by the 1st respondent contravenes principles of natural justice since the applicant was not heard prior to the decision and that the 1st applicant has not taken into account the decision of the court which declared the applicant the owner of the suit land. The applicant finalized his submissions by arguing that he has shown sufficient interest in the application at hand and if the prayers are not granted it shall cause injurious and incurable loss to the applicant and his family as they are deprived of their right to fair hearing, right to show and enjoy the fruits of their land. Thus, the applicant prayed the court to grant leave to the applicant herein to file an application for certiorari and mandamus. 5 From the applicant's pleadings and written submission, the major issue for determination is whether the application finds merits. The law is settled to the effect that an application for prerogative orders in the High Court must be preceded with an application for leave, which if granted will be followed by the main application for the prerogative orders. This was the position in the decision of the Court of Appeal in, Attorney General V. Wilfred Onyango Mganyi @ Dadii and 11 Others, Criminal Appeal No. 276 of 2006 (unreported). However, the criteria for granting leave for judicial review as submitted by the applicant are also underscored in the case of Emma Bayo V Minister for Labour and Youth Development & 2 (Supra) which held, interalia, thus; "At the stage o f leave the High Court is also required to consider whether the applicant is within the six months limitation period within which to seek a judicial review o f the decision o f a tribunal subordinate to the High Court. At the leave stage is where the applicant shows that he or she has sufficient interest to be allowed to bring the main application. These are the preliminary matters which the High Court sitting to determine the appellant's application for leave 6 should have considered while exercising its judicial discretion to either grant or not to grant leave to the applicant/appellant herein." The time limit for applying for orders prerogative orders of certiorari and mandamus is provided for under Rule 6 of Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN 324 of 2014 to be 6 months, thus; "6. The leave to apply for judicial review shall not be granted unless the application for leave is made within six months after the date o f the proceedings, act or omission to which the application for leave relates." Now coming to the case at hand, in ascertaining whether this application for leave to apply for prerogative orders of certiorari and mandamus is within time, I have gone through the applicant's chamber application, along with its annextures; the 1st respondent's alleged cancellation letter was issued on the 31st day of July, 2023. Then, the applicant lodged this application on the 3rd day of November, 2023 that is 3 months later, thus within timeline for filing the application at hand. Coming to the other criteria as to whether the applicant has a sufficient interest to be allowed to bring the main application. It is alleged 7 by the applicant through his learned counsel that he is an administrator of the estate of the late Abdallah Saleh Shabiby who was the owner of the suit land as alleged. Along with the affidavit, the applicant has attached the DLHT for Dodoma's decision declaring the applicant to be the occupier of the suit land as well as the decision of the same DLHT in execution of the said judgment and decree where the 1st respondent conceded the same to be granted. The applicant also alleged to have been deprived his right to fair hearing for not being involved in the decision making for the alleged cancellation of his right of occupancy. To support that, he attached the said letter to form part of his affidavit. Having considered the aforementioned reasons, I am of the position that, the applicants' allegations deserves a chance to he heard and determined by the court for it to meet the end of justice. That said, basing on the applicant's reasons for this application, the same undoubtably Suffice to hold that the applicant has made out a case prima facie to warrant him leave to file the substantive application for prerogative orders. Consequently, I hereby grant the applicant leave to apply for an order of Certiorari and Mandamus to challenge the 1st respondents' decision. No order as to costs. 8 It is so ordered. DATED at DODOMA this 19th day of June, 2024. 9