19960809 TZHC Dar es Salaam 1

/ Af~y-/J/,,- l)J 'llIE HIGH COURT OF TANZANIA AT DAR ES SALA.AM :tllc - MISC. CIVIL CAUSE NO, ,12 ,OF 1996 AI>S::ON FISHERIES (T) L'ID & ANOTHER ••••••••••••••••••• APPELLA.rtl' VERSUS . . D!RJ!I:TOR FOR FISHERI!"~ ~ ,OTIIERB.u,, • • •. •. • •••• • • f • ••• • • RESPONOEN'l'- • RULING .j ;..· KA.JI, J. This is an application by the appliea.nts AD ECO~ FI5HEIµES·, 'T) l1J'>,. c, ,.....1t- an4 MR1 ME£L EBRAHIM H.I\IDA~ £or orders of Q!RCI..CJ.W..fil and MANDAMUS• It has been filed under s.2(2) of the Judicature and Application tt Lawe Ordinance Cap ,43, s.95 ot the Civil Prooedure Code 4 1996• s.17 (1, ot the Law Reform (Fatal Aceidents and Miscellaneous Procision Oz-di.nan~) Amendment Act No. 55 of 1968, and fu'lY other enabling r.ir•Wmm ot th• 1-. · The 1st applicant Adecon is a corporate Company ~gistered und•r the Companies Ordinan~e Cap 212 and has been doing fishing and - » a ~ tro1en prawns for some years. The 2nd applicant Iqbal is a Citizen of Tanzania and the Managing Diftctor of the 1st applicant Company. ( The 1st respondent is the Director of Fisheries in the Ministry ot Tourism and Natural Resource an1·ia entrusted, among oth~r duttea, with . the authority to issue licences for fiehing or de~ling in fish on fish pl'Oducts in Tanzania. The 2nd respondent is the Minister for Tourism, Natural Reaources aid E:rwirome.nt, and under s.22 of the Fisheries Regulations 1989 he aata as an· appellate body on issues a.Z'ising under the Fisheries Act No. 6 ot 1910. The 3rd respondent is the Director General of' the Investment Pro11'10tioa Centre established under the ~Jc:·.ti,,,w..J. Imrestment (Production and Proteftioat ht No. 10 of 1990 responsible for approving Investors and tor issuiag certificates of approval. 'l'be 4th reapondent is the Attorney General who is the Chief Legal AdYisor to the Government. · IJ2 ~ the Minister for Tourist, Natural Resources and. ibviro~ · <1-e 2nd respondent) sanctioned Government Notice No 370 of 1994 vkenb7• inter al.ia 1 it was ordered that any person who until the (µ-at 4lay ot..,.,... 19'4 was using for :f'ishing any vessel/trawler in- Lake Viotori& or 1n the Indian Ocean ('.?anzania Territorial Waters) shall, et!eoti•• rroa11.~ have ceased to use that vessel for fishing unless the said v~sae1 bad, oornplied with the specifications mc::.de there under. The said apeoifieatiou showed that such a vessel should not exceed the o~erall length of 2,,0 metres, 1.50 Gross Registered Tonnage (GRT) 500 Main Engine Brake Horeo Power (B.H-.P) • For the 1996 Fis~ing per~od the applicants were denied a Fiskiag Licence by the 1st respondent on the ground that their vessel eueeded ·the specified specifications. Their appeal to the 2nd respoa~ent was rejected• They were aggrieved, They lodged this application prayu, ffr an order of certiorari to remove into this court the Government Notice 1f11 3'10 ot 1994 for the purpose of being quashed for being unreuonulee A.Jr also to remove into this court the decisions ma.de by the 1st an« h4 re~pondents to refuse issuing fi$hing lioence tor 1996 · f i.shing aeuon tor the purpose of being quashed. They also prayed for an order of ?¼.ndarnue so that th4i lat and Ind respondents should be ordered to issue an approprb.t&- fishing lice11oe ~o the applicaDts a.nd to guide their actions in accordance witk the »z'Olriiaiou of the National· Investment (Promotion and Protection) Aot No ~O of 1.911,. Also~ order of Mandamus should be directed to the 3~d respondeai to. . . ,W the certificate of approval issued to the applicants and to protoot th• ) trom irregular procedure being bonafido investors protected by th• lava ot Tanzania. E l a ~ [ i 1 . these the applicants submitted that the 1st end ¥ I ~spondent failed to act reasonably by f'ailins to held due &ld ~ note ot the !act that the applicants had rectifi~d their vessel to the re4ui.nd epeoifieation of 500 BHP and that the reduction of the BHP was witneast4 ·by a Principal. Marime Surveyor in the name of MR. JOSEPHAT' .SHANTA NO O T. And further that immediately after the meeting held on 19th Janu as per para 8 of the respondent•s affidavit the applicants started maldag efforts to comply with the r.equirements of the law·whereby a su?"V'•Y ce:-tifSptt was latel' issued by captain MOKIWA after receiving a lettei- from the MuiistJl'J' of Wore confirming the reduct ion.,. "The applicants went on submitting that.•· s:\liip is not like a bicycle or a s.,;,.loon car which ce.n be rectified or <ii9moved within a short· notice c.nd t::iat the letter fro~ the '2nd l'eapond•at directillg the applicants to remov(:; the vessel within a shcrt notioe and W - 3 - make tll,. oakc, altemative a.rrangment was, in their ,riew, -very un.reaaonab1e ~ th• oircumstances. The applicants went on submitting that the N!spondente act4Nl ,anreuonabl.7 by failing to consider the amminent loss of government re-venu•• the loss of inaome to the applicants, and the consequent breach ot th• hire purchMe agreement resulting into losses of the applicaitt'e IIOl'lGJ' already paid and the great possibility of repossession ot the a&.ip by the seller•. The applicants went on submitting that the Principal Seeretaz,, of the 2nd respondent Ministry is among the members who sat to approve the applicant's applioation to the IPc whereby no objection was rai.M4 as to the aize of the fti.ip. It is therefore their view that there was no s•ientif'1• proof supporting the specification in GN 370/94, and theretore in their 'ri.w GH 370/94 is unreasonable both in law and ill fact. The applicattts complained that the 1st and 2nd respondents a•t~d with biae by issuing.fishing licence to other vess.els whieh had not oomplied with GN 310/94~ Theee vessels whi~h were mentioned in Para 7.2 of the '· Statement are MF'/ :El-fILIA with 256.36 GRT 992 BHP, MPV ARUSHA with 155,f GRT 550 BHP,. ODYSEAS with 660 BHP, AL-WALLY with 624 BHP and MAMA L!DA with the J;sngth of 25 metres. While under s.14 ot the F:utheries Aot Moe & ef 1970 the Minister has a discretion to exempt MY person or organizatioa from all or any of the provisions of that Act or any subsidiary tegiebtloJI made thereunder if doing so is in th& public interest, it is tlu1ir eu.bmiaelr •• that the 1st respondent did not disclose anywhe~e what public interest wen considered in granting the other vessele licence. It i4 their submission that the 2nd respondent in refusing their appeal to issue the licence to the applicants was biased and was made without any due regard to' the public interest. The applicants were also not happt with the 3rd respondent. In their submission they submitted i;;~•:,~.- ,;J ,··I ~'.t'¾d. that the )rd respond•nt had a duty and responsibility to oversee promotion and protection of investors in accordance with the law and especially s.s of the National. Imrestiment (Promotion and Protection) Act No. 10 of 1990 which say&:• • . ,. - 4 6 (1) To keep under review and advise the governmant periodically on policies, strategies and proee4UN relating to the promotion and resuiation· or in.Ye•tmente and mattere connected therewith, and to recommend aotioa necessary for the encouragement of private investmente including simplifications of procedures effecting investment and legislative measures 5 (2)(K)1 To a,jeist holder of certificate of approval in e9curtnc all lieences, authorizations, appl"'Ovals and permit• required to enable any approval granted b1 tp oentr. to have full effect.a It is their complaint that when their application for a licence wu r~fus~d they contacted the 3rd respond(!!nt~ But the 3rd ?-aspondettt did nothing to assist them nor did the 3rd respondent make any effo~ to diatu,to the issue with the 1st and 2nd responclents to advise-them aocol"dingl.y• The applicants further submitted thAt there has been no co-.ord~tioa between the 2nd and 3rd respondents es a resuit.tho 3rd t-espondont issuecl them with a certificate of approval for the year 1996 but the 1st and~a« respondents refused to issue them with a fishing licence •. It is their-view that it wae useless for them to follow the procedure laid down by the leY . . w~ich is not honoured by the 2nd respondent there~ renddt;i.ng that iaw a useless piece of document. They said the enactment of GN 3?0/94 ahot.fa 11w the 3rd respondent failed to protect the applicants and investors in geneNll. especially that it affected the main aspect of inves~ment. The applicants went on submitting through their learned Counsel Mrs Kato that the 1st• 2nd and 3rd respondents failed to enalyse the state of the applicant's loan which had be_en guaranteed and approved by the Bank of Tanzania. And further that the respondents failed to appreciate the amount of capital and effo1'3t that had been pU:t in the approved projec'-' They said the vessel is value at USD 2.5 millions whi~h was purchased under a hire purchase agreement through the Bank of _Tanzania.. They are making \ a monthly payment of USD 20 1 833033 for setting of the loan to ELLA.FONIS~l wh_ich is a fishing and shipping company of Greece whereby theyft~v'rer p$i4 USD 1,514,.-770 of the purchase price which they also stand to lose if this application is not granted. They ended up by reminding this court that ·since the let and 2rd respondents have already issued fishing licence to other vessels which contravene GN ,70/94 then an order for Mandamus prayed fo~ can be made against the 1st and 2nd respondents as it is within their powers to comply with. - 5 .. The respondents resisted the application. They were Npresented · by Mr Songoro learned State Attorney. Mr. Songoro relying heoil7 on th.• counter affidavit de~~~ by?£_ Verdiana Nkwabi Mach& learned Stat• Attome7 submitt~d that the applicanta•s application tor a fishing licence for the l91i fishing seaaon was rejected because their vessel did not meet th.e •,e•iticatic,~ laid down in ON 370/94 in that its Gross Registered Tonnage (ORT) vru, 2!2 as against the specified 150 GRT, its length was 26.76 metres ae ase,inst the specified 25.0 metres, and its Brake Horse Power (BHP) was ?00 Md later r•duced to 500 BHP. He said under s.15 of the Fisheries Aet, the lat respondent has power to deny fishing licence to certain type of vessel, as he did~ the applicant's vessel, for the purpose of e011Serving a diminishing fishery resources; and further that GN 370/94 was made for the purpose of•oonsel"'ling a diminishing fishery resources. He said it the applice.Jlt 'e vessel would b• allowed to ca:rry on fishing activities, it·would cause a big mixing of vat•• \. with debris and rnud to the extend 0£ endangering fishery rasources. Mr. Songoro went on submitting that in an application tor certioi'ari and mandamus like this one the crucial issue is whether th&t'leeis1on o! th• 1st and 2nd respondent•s was proper or erroneous in_ lav, in view •t GN f71'94• It was his humble submission the.t the applicant's ap:pli~tion did not point or disclose:~ {a) That there was ~ error on the face of the record in reepect , . of the decision of the 1st and 2nd respondents. (b) That there was any violatioiio! the Principle of Natu~al 3ustite• (o) That the respondents acted in ex.ass or without juriediction. {d) That the respondents took into consideration extral'leous consideration in reaching their decisions • ., With all this it was the learned State Attorney's submission that there is no basis- for this honourable court to quash the decision of the 1st and 2nd respondents. He said eeonom.ic and policy ccnsidera.etion cannot deteat express provision of the law. The learned State Attorney went on submitting that the faet that the BHP was reduced to the required specific,?.tion that per$e was not enough to enable the applicants to be issued with a fishing licence because t h e ~ and GRT exceeded the specifications. He said the let and 2nd respondents ,.__ cannot be held to have acted unreasonably because the applicants were given two years in which they were to have their vessel rectified or replaced wit~ a vessel with the required specifications. ·, - 6 He said the 1st and 2nd respondents cannot he held to ~ave aeted UDN•o11abl7 because the applicants were given two ~ears in which they wer~ to htffe th•1r vessel rectified or replaced with a vessel with the requu-ed apee{ticatiou. It was the learned State -Attorney's submission that a period of two years was sufficient time and cannot be held to be unreasonable; e.nd further that the applicante should not be heard complaining about losses because they decided to keep the vessel at their own risk because it did not 12lr9et the required specification. The learned State Attorney dismissed the applicant's sympath7 tor loss of government rev·enue in that since there is evidence that liehery resouree is being deplatedl-granting a fishing licence to the applicants would result into more depletion which would also cause a loss of revenue to t~e governm&nt• As far as the applicant•s complaint tor discrimination is coneened the lear~ed State Attorney replied that the Fisheries I)epartment is in· a gradual process of phasing out fishing trawlers to avoid total depletion of the_ resource; and that it was only unfortunate the hammer fell on the applicant• as a first move. It was the learned State Attorney•s~submisston that the act of issuing fishing litences even to some vessels whieh had exceeded specifications was not with bias. -The learned State Attorney went on replying that the question ot cost• incurred by ~e applica.tits cannot be a good ground for contravening the law, . That is why licences are issued annually to allow relevant authorities to determine the stat~ of the resources before the commencement of the fiahing season and issuance of fishing licences. With all this the learned State Attorney ealled upon ~his court to disJlliaa this application. In short that was the erid of the learned counsel's submissions. The applicants are praying for five remedies. namely:. 1. For an order of cert iora.ri to remove into this court Government Notice No 370 of 1994 for the purpose of it being quashed for being unreasonable. 2. ' For a.n order of certiorari to remove into this court the decision made by the 1st and 2nd respond~nt•s ·refusing_ to issue a fishing licence to the applicants for the 1996 I ' fishing season for the purpose of it being quashed as it was made with btas and or with discrimina~ion. ' - 7 - 3. For an order of Mandrunus directing the 1st and 2nd 1"'9spondfflts •to issue an appropciate Fishing Lioenc• to the applieants and to guide their action in accorda..~ce with the provisione of the Nattonal Investment (Promotion and Proteetion) Act No 10 of 1990. 4. For an order of Mandamus directing the lat and Znd respondent• to respect the c:ertificate of Approval issued to the applicants by t.he 3rd respondent as bonafide investors protected by tile Laws of Tanzania. 5. For an order of Mandamu,:; directing .the 3rd. respondent to respect the Certificate of Approval issued to tbe Q , applicants and protect them from irregular procedure. twill deal with them one after-'another.although not neeessa.t-ily \ in ieffetil'i(·• Before g_?ing into ·the merits Br demerits of these p~ayers I must make it clear that it is a well known principle of law that granting a prerogative order is a discretion of the court and that the court will onl.7 do so if thnt is the only remedy to meet the justice of that case. Now ns far as the first prayer is concerned the applieant'a allegation ie that GD 370/94 is unreasonable because there is no soientiffo proof supporting the specification made thereunder. The le,irned· State Attorne7's reply is that that Government Notice is not unreasonable because it was sanctioned for the purpose of conserving a diminishing f isher:r ffeouioiis • • I The crucial issue therefore is whether this GN is reasonable~. In deciding whether this GN is reasonable or unreasonable we must look at the provision under which it was madE, that i$, whether it is ULT!b\ VIRES or INTRA VIRES. This was made mtder s.7 of the Fisheries Act No. 6 of 19?0• Under that provision of the law the Minister responsible for fisheries has got powers to make regulations for the better carrying out of the objects· rutd purposes of that Act and may, by.such regulations, make provisions which, µi his opinion, Are necessary or expedient for the purposes of protecting, co~serving, developing,·regulating or controlling the capture, collection; gathering, manufacture, storage or marketirtg of fish, fish products, aqua.ti~. flora o.r products of aquatic flora. - 8 - 'l'h.e object and purpose of the Fisheries Act No 6 ot 1970 ts int~ a.11a, to protect, eonaerV"e and cont~ fish, fish products ete according to thei¥,ording of the title of that Act. According to the learned State Attorney GN 3?0/94 was sanctioned t~ conserve a diminishing fish_ery resources. It is my considered view that thee. is nothing indicating that the Minister actect ultra.vi.res in SJlmntionine; GN 379/94. Likewiae ther(t is nothing indicatihg that GN 370 of 1994 is unreasonable+ It was l'lot necessat';( for the Minister to show the amount of the diminishing fish. At eny rate that would be impossible. In view of this applicant's prayer for an order of certiorari to removG into this court GN 370/94 for the purpose of being quashed is rejected• I will deal with the second and third prayer later. I now move to the 4th -prayer. 'Iha applicants are requesting this court to issue an order of Mandamus directing t~e 1st an~ 2nd respondents to respect the certificate o!AApproval issued to the applicants by the 3rd respondent as bonafidt investors protected by the laws of this country. According to the applicants since they were issuedtwitli /J certificate of Approva1 by the 3rd respondent, the/ 1st a..lld ZnCi r~sponaen s w~-r . duty bound to honour that certificate of Approval and issue them with a fishing licence for that period. With respect to the learned counsel for the applicants I did not come across a provision saying that once IPC issues an investor with ll. Certificate of Approval then the Directer of Fisheries or the Minister responsible for fisheries ~st issue him with a fish inG licence. Had it been an ordinary suit I wouldn't hesitate to hold that there is no cause of action. But fo~ the ·purpose · a prerogative order of Mandamus I hold that there are no sufficient grounds for the order prayed for. In view of this the applicant's prayer for an order of Mandamus directing the 1st and 2nd respondents to respect the Certificate of Approval issued by the 3rd respondent to the applicants is rejected. As far as the fifth prayer is concerned the applicants are praying for an order of Mandamus directing the 3rd .respondent to respect the Certificate of Approval issued to the applicants and to protect them from .irregular procedure. According to the applicants, the 3rd respondent has a duty to prote~t investors as per hi-6 obligations under s.5 of the National In~estment (Promotion and Protection) Act No 10 of 1990. It is the applicant's feeling that the 3rd respondent abdicated from that obligation because when they were refused a fishing licence by the 1st and 2nd respondents, the 3rd respondent did not come to their rescue as a result they suffered a great financial loss~ - 9 ... With respect to the learned counsel for the applicants, l do not Me llov the question of Mandamus comes in. If the 3rd respondent had n duty of care to protect the applicants and he breached that duty ot care aa a result the applicants have suffered a great til!ancia.1 loss, then the remed7 van be found somewhere a1se and not by :':ln order of Mandamus. For that reason the applicant's prayer for an order of Mandamus diNcting the 3rd respondent to respeet the Oertificate of Approval is rejected. I now come to the 1st and 2nd prayers. Under these prayers the applieants are pre.ying for an order%ertiorari to remove into this court the 1st and 2nd respondent's deeision refueing to issue the applicants with a fishing licence for the purpose or q11ashing it, and an order of Mandamus direoting the 1st and 2hd respondents to issue the applicants with a fisai.ng lieen~. According to the·applicants the 1st an~ 2nd respondents acted unreasonably in refusing them a fishing licence on the ground ot :f'ailµig to meet tho NqUired specification in that they had reduced the BHP from ?50 to the required specification of 500 and the length exceeded very ~lightly the reqUired length in that their vessel was only 26 'on as against the spaeitied. 25.0.M. They went on arguing that the 1st and 2nd respondenta were biaaed because they allowed other fish.ing vessels which exeeded. the specified specifi6ation by far. They cited some ex.,-unples of the said vessels. And that no public interest was involved•. In reply the learned State Attorney replied that under the J'iaheriea Act 1970 the 2nd respondent oan exempt any persoa or organization-from all or any of the provisions of this Act or of any subsidiary legislation made the~-' under if in his opinion it is in the public interest so to do (S.14) and that t h e ~ to phase out ali vessels which exceeded the speoifioatioo was~ gradual process and that it was C?il7 unfortunate that the hammer fell on the applicants as the first victims. He denied any bias or discrimination., When a law allows discretionthen.that discretion must be exeoised with a judicial mind. .It must be exercised in the the basis of fc.icrees and jwstieee , It must not be exercised with a bias or discriminatory mind. in this respect is whether In the present case the Cru.cfa1 issuo/ in refusing the applie~tfs application· for the 1996 fishing licence while granting fishing licence to other vessels wit_h simile.r defects the 1st and 2nd respondents exercised their discretion with a judicial 'mind without bias or discrimination. According to Annexture A3 the 1st respondent rejected the applicl'Jlt's application due to the size of the applicant's vessel~ f - 10 • 1he 2nd respondeats rej,ected the applicant•a appeal oath• ~ tllet their vessol exceeded the 500 BHP (see i\nnexture A5). Thie shows clearly that the 1st and 2nd respondents in refusing *h• applicant's application acted under a false belief that the appellant•• vessel exceeded the specified 500 BHP. There is an Halif,Qfe!l taot la An.nexture A.4 that the applicant's vessel had i t s • . been Nduee4 to ,00 ..t- as witnessed by a Principal Mariae Su?"'Teyor from Hellenio Regi,at•r et S11lpping Mi-. Josephat Shanta Na.tion.-"lta ae eonfiX'ltted by the Registrar ot shipa•' Hellenic Register of Shipping is an authorized olaasitication soeiet7 to issue statutory s·urvey Certificates on behalf" of the Tanzania GoYermten~ Looking at the vessels which were i$sued with tisking iie4>-,ea at.tbougll they exoeeded the speclfied specification ae listed by the applieante ,t would appear that they were allowed beeaus$ none ot them exeeeded a11 l specif ication.s unlike the applicant •.s vessel which appeared to ha"IP• •X9eeded. all specifications·. MFV Emillia had 256.36 GRT and 992 BHP, MPV Arwtha 1.5_5.GRT and 550 BHP, Odyseas 600 BHP, Al-wally 624 BfIP and Me.ma Leda with tb ·~gth of 25 metres. Had the 1st and 2nd Nspondents addnsff4 their ndad to the proper 500 BHP of the applicant's v~ssel their decision would probabl.7 llaw• been different. Since the 1st and 2nd respondents refused the applicant's application on a wrong belief that the applicant's vessel exceeded all 3 speoificationa• their decision was not. based on the basis of ~-.ams and just lee. It vaa not free from apprehension of bias and discriminatio:n. It is hcr•by fl',leuth-tfe bf The court has been asked to issue an order/Mandarnue directiag the let and 2nd respondents to issue the applicants with an appropricate tiahiag licence. But it mu.et be .borne in mind that tho court is not aupPQSad to ~ the powers of other organs with powers vested on them by law. Its duty Sa only to see to it that such powers are properly used. It is only in ••l!'f rare oceassions (if any) when a court can order specific pertormano• againat a government organ. The proper ea.use is to declare or father to di.Net vhat is to be done. In view of this the 1st and 2nd respondents are hereby directed to reconsider·the applicant's application for a fishing licence on the 'balsie of fainess, justice and without bias or discrimination• ihia is to be done within fovrteen ( 14) days from the •ie:te of delivery of· this ruling. Application pe.rtly allowed •. " - 11 0 9/8/1996 Coram: Mshote DR/HC Mrs. Kato - For the Applicant Mrs Kato - For the Respondent Songoro c.c. Komba £._~rt: Ruling de~ivered in chambers in the presence of Mn; Kato·for the applicant and holding brief for Mr. Songoro for ~he respon1ents this 9th August, 1996. F .. s. MSHOTE .I>JSTRICT REGI.STRI\R 9/8/1996 ...