chalinze cement company limited vs fair competition commission 2023 tzhc 15654 27 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM MAIN REGISTRY) AT PAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 5 OF 2023 IN THE MATTER OF THE MATTER OF THE JUDICATURE AND APPLICATION OF LAWS ACT [CAP 358 R.E 2019] AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT [CAP 310 R.E 2019] AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) (JUDICIAL REVIEW PROCEDURE AND FEES) RULES, 2014 AND IN THE MATTER OF THE FAIR COMPETITION ACT NO. 8 OF 2003 AND IN THE MATTER OF THE DECISION OF THE FAIR COMPETITION COMMISSION DATED DECEMBER 2022 AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION BETWEEN CHALINZE CEMENT COMPANY LIMITED VERSUS FAIR COMPETITION COMMISSION 1 RULING 24/02/2023 & 27/02/2023 KAGOMBA, J On 14th February, 2023 the applicant herein filed her Chamber Application in this Court against the respondent, under a certificate of urgency, to seek the following orders: 1. An Interim order to restrain the respondent and its agents from implementing the communique issued to the Minister pending determination of the application for leave. 2. An order granting the applicant leave to file an application for orders of certiorari and prohibition of the implementation of the respondent's decision constituted in her communique dated December, 2022. 3. Costs. 4. Any other relief or orders as the Court shall deem fit and just to grant. The Application is made under Order XXXVII Rule 2(1), Rule 4 and section 95 all of the Civil Procedure Code [Cap 33 R. E 2019]; section 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, [Cap 310 R.E 2019] (hereinafter referred to as "Cap 310"; Rule 5(1) and (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 (herein after referred to as "the 2014 Rules" and section 2(3) of the Judicature and Application of Laws Act 2 [Cap 358 R. E 2019] and is supported by the affidavit and statement of the applicant. On 20th February, 2023 when this matter first came before me virtually, through video conference, a prayer was made by Mr. Ayub Sanga, learned State Attorney, that the respondent having been duly served by the applicant, wished to be allowed to file her counter affidavit as well as a statement in reply to the applicant's statement. The prayer was not objected by Ms. Dora Mallaba, learned counsel for the applicant, who also prayed to be allowed to file replies thereto, if the Court granted the respondent's prayer. Accordingly, the prayers by both sides were granted, which sat the ground for setting a hearing of the application on 24th February, 2023. However, the hearing of the Application could not proceed as scheduled as the counter affidavit and statement were filed by the respondent alongside a notice of preliminary objections, raising seven (7) points of law, as hereunder; 1. That, the Application is untenable in law as the Court lackedjurisdiction to entertain it. 2. That, the Application has been overtaken by event. 3. That, the Application is untenable in law for being filed withoutjoining the Attorney General contrary to sections 6 and 10 of the Government Proceedings Act, [Cap 6 R.E 2019]. 3 4. That, the Application is untenable in law as it falls short of the prerequisite conditions for judicial review for lacking decision which is subject to judicial review. 5. That, the Application is untenable in law as it falls short of the prerequisite conditions for judicial review for failure to exhaust available remedies. 6. That, in alternative to point of objection No. 4 above, the Application is untenable in law for being preferred against a party who has not made the communique. 7. That, the Application is untenable in law for being supported with defective affidavit verifying facts under paragraphs 2,3,4,5,6,11,12,13 which are not in the statement contrary to rule 5(2) (a, b, c and d) of the 2014 Rules. As per the established court practice, the Court had to determine the preliminary objections first. On 24th February, 2023 when the matter came up for hearing, the respondent was represented by Mr. Ayub Sanga, Mathew Fuko, Magdalena Utouh and Josephat Mkizungu, all learned State Attorneys, while the applicant was represented by Ms. Dora Mallaba, learned Advocate. It was Mr. Sanga who set the ball rolling by praying to start with preliminary point of objection No. 1, to be followed by No. 3, No. 2, No. 7, No. 4, No.6 and finally point No. 5. 4 In setting ground for arguing the first point of preliminary objection, Mr. Sanga cited the case of James Gwagilo v. Attorney General [2004] T.L.R 161 on the point that parties are bound by their own pleadings. He also cited the decision in Mukisa Biscuit Manufacturing Tanzania Ltd v. Westend Distributors Ltd (1969) 1 EA 669 on a point that a preliminary objection has to consist a pure point of law on matters pleaded or those arising from clear implication in the pleadings. He also cited the case of Moto Matiko Mabanga v. Ophir Energies Pic & Others, Civil Appeal No. 119 of 2021, CAT at Dodoma on the position that a preliminary objection shall not be taken from the abstract. Mr. Sanga went on to refer to the facts stated under paragraph 15 of the respondent's Counter Affidavit, that the Application before the Court arises from the order of this Court issued by Porno, J granting the applicant's prayer to withdraw her Misc. Civil Cause No. 591 of 2022 with a leave to refile. That, it was the said leave which enabled this Application to be filed, being the same as what was before Porno, J. It was Mr. Sanga's further submission that the respondent was aggrieved by that decision because the Court allowed the withdrawal of the Application after the applicant had conceded to the first point of preliminary objection concerning jurisdiction of the court, while there were other points of objection which were yet to be determined. That, it was for being so aggrieved, the applicant filed a Notice of Appeal to the Court of Appeal to challenge the impugned decision. 5 The crux of Mr. Sanga's argument is that, after the Notice of Appeal being so filed in the Court of Appeal, this Court lacked jurisdiction over that matter. He posed the following two suppositions: If; on appeal, the Court of Appeal allowed the respondent's appeal or, finds that the Misc. Civil Cause No. 591 of 2022 was properly placed before Hon. Porno, J and proceed to order that he should proceed with its determination, what will be the fate of this Application? To concretize his argument, Mr. Sanga cited the case of Tanzania Electric Supply Company Limited v. Dowans Holding SA & Another, Civil Application No. 142 of 2012, CAT at DSM, to the effect that once a Notice of Appeal has been lodged to the Court of Appeal, the High Court ceases to have jurisdiction over the matter, save for those matters which, by law, may commence at the High Court as a first bite. He also cited the case of Awiniel Mtui & Three Others v. Stanley Ephata Kimambo, Civil Application No. 19 of 2014, CAT at Arusha, on the same position. Still loaded with arguments and precents to support his position, Mr. Sanga submitted the obvious, that the cited decisions of the Court of Appeal were binding on this Court. To demonstrate that this Court has been loyal to the doctrine of precedent, he cited the decision of this Court in Legal and Human Right Centre v. Minister for Finance and Planning & Two Others, Misc. Civil Cause No. 28 of 2021, High Court, Main Registry at DSM, where this Court towed the line in accepting the legal position that once there is an appeal instituted in the Court of Appeal, this Court ceased to have jurisdiction on that matter. 6 Mr. Sanga wound up his submission on the first point of the preliminary objection by praying this Court to abstain from exercising jurisdiction over the matter for the interest of justice and for avoiding causing chaos, adding that the applicant could always knock back at the door of this Court if she needed to do so. He prayed for dismissal of the Application with costs. The second point of the preliminary objection argued by Mr. Sanga was the objection No. 3 on non-joinder of the Attorney General. He submitted that non-joinder of the Attorney General as a party to this Application was contrary to the provision of sections 6 and 10 of the Government Proceedings Act, [Cap 6 R.E 2019] which required his joining whenever a government institution is sued. He argued further that, the provision of section 18(1) of Cap 310 required the Court to order the Attorney General to be summoned, as a party to the matter and not merely to represent another party. As for the consequence of not joining him, Mr. Sanga cited Daudi Paul & 455 Others v. Regional Commissioner, Mtwara, Misc. Civil Application No. 2 of 2021, High Court, Mtwara District Registry, where this Court stated that the joiner of the Attorney General was mandatory and therefore his non-joinder had the effect of vitiating the proceedings. For this reason, Mr. Sanga prayed for the Application to be struck out. The third point of preliminary objection argued was the objection No. 2 which stated that the Application was untenable for being overpassed by events. Mr. Sanga raised two arguments here. Firstly; that while the applicant was seeking leave to apply for the orders of certiorari and 7 prohibition to prohibit what the respondent "intends" to do, the fact of the matter was that the respondent was no longer "intending" but had actually started the merger approval process by issuing a public notice since 11th February, 2023, before this Application was filed in this Court on 14th February, 2023. That, when initiating that process, there was no any court order prohibiting the respondent from processing the merger. He clarified that, the order by Porno, J to withdraw the Misc. Civil Cause No. 591 of 2022 derogated all the other orders made thereunder. Secondly; the applicant had filed to the respondent a notice to participate in the merger approval process and was actually participating in the process by filing her objection, which was heard by the respondent. He elaborated that while the applicant averred in the affidavit that she expected the respondent would not give her a right to be heard, the fact of the matter was that the respondent had availed her that right. He added that if the applicant was not satisfied, her another forum would have been the Fair Competition Tribunal (hereinafter referred to as "FCT"). On the prayers being overpassed by events, Mr. Sanga cited the decision of the Court of Appeal in Felix Emmanuel Mkongwa v. Andrew Kimwanga, Civil Application No. 249 of 2016, CAT at DSM, where the Court of Appeal stated that when an application is for a matter overtaken by events, it has to be dismissed. He therefore prayed that the Application be dismissed for being overtaken by events. The fourth point of the preliminary objection to be argued was the objection No. 7, whereby Mr. Sanga picked issues with the contents of the 8 applicant's affidavit. His main contention here was that while Rule 5(2) of the 2014 Rules required the Application to be accompanied by a statement as well as an affidavit that verified what is stated in the statement, the applicant's affidavit was defective for containing matters in paragraphs 2,3,4,5,6,9, 11, 12 and 13 which were not stated anywhere in the applicant's statement. He referred to the decision of this Court in Quality Inspection Services Inc. Japan v. Public Procurement Regulatory Authority & Three Others, Misc. Civil Cause No. 45 of 2022, High Court Main Registry, DSM, where this Court agreed with his similar objection. He, therefore, prayed the Court to find those paragraphs offensive and expunge them. He expressed his opinion that if those offensive paragraphs were expunged, what would remain in the affidavit shall no longer support the Application, leading to its being struck out. With regard to the preliminary objection No. 4, which was argued fifthly, Mr. Sanga charged that the Application was not tenable for failure of the applicant to abide by the prerequisite condition of attaching to it the decision intended for the judicial review. He clarified that in order for the applicant to apply for a writ of certiorari, there must be a decision of a public body being challenged. He said, under paragraph 6 of the applicant's affidavit the applicant has attached a communique, apparently as the decision being impugned. He argued that what was deemed by the applicant to be the decision of the respondent was a mere report and not a decision, as document was written in its heading in Kiswahiii "Taarifa ya Mheshimiwa Waziri wa Uwekezaji na Viwanda.."^ mean a report of the Minister for Investment and Industry. 9 Mr. Sanga added that, the said report didn't belong to the respondent but to the Minister. He said that its contents comprised of a mixture of opinions and advice which could not stand the test of a decision capable of being subjected to judicial review, adding that the authority receiving the advice had powers to decide otherwise. He insisted that for a leave to apply for judicial review to be granted, there must be a decision being impugned. To cement his contention, Mr. Sanga cited the case of Joshua Samwel Nassari v. The Speaker of the National Assembly of the United Republic of Tanzania & Another, Misc. Civil Cause No. 22 of 2019, High Court, Dodoma District Registry. In this case, according to Mr. Sanga, the Court ruled that a public notice which was attached by Joshua Samwel Nassari was not a decision that could be subjected to a judicial review. Mr. Sanga wound up on this point by insisting that a person applying for leave to seek judicial review must attach a decision complained about, and if the same was not attached, the applicant shall have no tenable case, as is it was in this Application. On preliminary objection No. 6, which was also queued as the sixth objection during presentation in Court, and which was argued as the alternative to point of objection No. 4, Mr. Sanga submitted that the application was untenable in law for being preferred against a party who had not made the communique. He briefly argued that, if the applicant was aggrieved, she could have filed her application against the owner of that communique, who was the Minister. That, the applicant had no cause of action against the respondent, again referring to the case of Joshua Samwel Nassari v. The Speaker of the National Assembly of the io United Republic of Tanzania & Another (supra) for this contention too. He prayed the Application be dismissed, for this reason. Finally, Mr. Sanga argued on the point of objection No. 5, by submitting that the applicant didn't exhaust the available remedies, which was one of the prerequisite conditions for applying for judicial review. He argued that if this Court would find that the communique was a decision, and that it was made by the respondent, then the applicant should have pursued the remedies provided for under rule 41 and 49 of the Competition Rules, 2018. Mr. Sanga, reiterated his earlier submission that the applicant was participating in the on-going approval process where she had filed her objection and was heard. He cited the case of Obadia Salehe v Dodoma Wine Co. Ltd [1990] T.L.R 113 and Joshua Samwel Nassari v. The Speaker of the National Assembly of the United Republic of Tanzania & Another (supra) on the point that judicial review must come last after exhausting other available remedies. He wound up his submission by praying that the Application be dismissed for being brought in Court before exhaustion of other available remedies. Ms. Dora Mallaba, learned Advocate for the applicant, started by responding to the question of jurisdiction raised in the preliminary objection No. 1. She highlighted what transpired before Porno, J leading to the order of withdrawal of Misc. Civil Cause No. 591 of 2022, with a leave to refile, hence this Application. She submitted that the respondent had raised a preliminary objection that the DSM District Registry of this Court had no jurisdiction to entertain the Misc. Civil Cause No. 591 of 2022. That, Porno, li J, having considered that objection, he found it wise to grant the prayer for withdrawal of the matter so that the applicant could file it in the appropriate registry of the High Court. She expressed her surprise that the respondent who had objected to the jurisdiction of the Court, filed a Notice of Appeal to the Court of Appeal to challenge the decision made by Hon. Porno, J. Ms. Mallaba argued that even if Porno, J had not granted leave to the applicant to refile the Application, the applicant could still be able to file the same because she was within the time period of six months within which one is allowed to file her application for judicial review, owing to the fact that the decision of the FCT was made on 23rd September, 2022. Ms. Mallaba conceded that the Application before this Court was the same as the previous Misc. Civil Cause No. 591 of 2022. She explained that, the applications were similar because the previous one was not heard on merit before Porno,J. On the contention that this Court should abstain from determining the current Application following the filing of the Notice of Appeal to the Court of Appeal, Ms. Mallaba submitted that, if that was the case, even the merger process should also be suspended. She explained that the decision on the merger, which is the source of this Application, was contrary to the decision of the FCT in Consolidated Appeals No. 6,10 and 12 of 2022, which quashed the decision of the respondent. She insisted that if this Court will rule that it has no jurisdiction because of the Notice of Appeal filed in the Court of Appeal, it would be for the 12 interest of justice that the Court should also order the suspension of the on­ going merger process, pending the determination of the appeal by the Court of Appeal. Having submitted as above, Ms. Mallaba turned around and submitted that the preliminary objection No. 1, on the issue of jurisdiction, was without merit and should be overruled because the Notice of Appeal does not bar the Application, as the same was filed within time. She expressed her opinion that what the respondent did in filing the Notice of Appeal, was a delay tactic so as to get time to proceed with the on-going merger approval process. Replying to the point of objection No. 3, on non-joinder of the Attorney General, Ms. Mallaba submitted that one cannot institute a suit against the Government without issuing the statutory 90-days' notice. She argued, however, that the Attorney General was not a party from the beginning when the matter was before the FCT. She argued further that section 6 of the Government Proceedings Act [Cap 6 R.E 2019] applied to suits and not on matters concerning prerogative orders. On the preliminary objection No. 2, as to whether the matter was overtaken by events, Ms. Mallaba found no merit in the objection. She said that the objection was based on facts and not on a point of law. She cited Mukisa Biscuits Manufacturing Tanzania Ltd (Supra), for a contention that a preliminary objection has to be on a point of law and it cannot stand if there shall be a need to ascertain the facts. 13 On the contention that the applicant has been heard by the respondent, Ms. Mallaba argued that the public notice on merger was still at the preliminary stage and therefore it was not right to say that the matter had been overpassed by events. She added that the applicant's petition was yet to be filed and the ruling thereon was yet to be given, hence the applicant had not been heard as stated by Mr. Sanga. Regarding the argument that there was no order of the Court restraining the respondent when she made the public announcement on the merger, Ms. Mallaba argued that the order for leave to refile the Application made by Porno, J on 10th February, 2023 and the order by Ismail, J restraining any impending matter until the application for leave was determined dated 30th December, 2022 were subsisting. She added that the case of Felix Emmanuel Mkongwa (supra) doesn't apply to this case for a reason that in that case execution had already been done while in the matter at hand it was still at preliminary stage, and was being done against the decision of FCT. On point of objection No. 7, where it was contented that the applicant's affidavit was defective for containing matters in paragraph 2,3,4,5,6,9, 11, 12 and 13 which were not stated in the applicant's statement, Ms. Mallaba replied that the applicant had complied with all the requirements set under Rule 5(2) of the 2014 Rules. She added that the sequence of the events had been narrated in the affidavit and therefore the argument that the cited paragraphs should be expunged from record did not hold water. 14 On the point of objection No. 4, regarding lack of decision which was subject to judicial review, Ms. Mallaba submitted that the objection was misconceived and ought to be dismissed. She argued that it was the communique which formed the basis for Scancem International DA to apply for acquisition of the shares in Tanga Cement Pic. She added that the respondent was implementing the communique by issuing the notice to the public on 11th February, 2023. She argued further that if Annexure CC-5 was read together with Annexure OSG-1, the communique which the respondent was implementing is the decision, which was intended to be challenged, because it referred to the decision of the FCT. On the point of objection No. 6, that the decision to be challenged was not made by the respondent, Ms. Mallaba submitted that by looking at substances of the communique, the same was issued by the respondent. She justified this belief on the fact that the respondent was the only institution in the country that handled matters of mergers and acquisition and was keeping records concerning market dynamics for cement. She added that the person who could have made such a communique was the respondent and not any other institution, for having relevant mandate under section 68 of the Fair Competition Act, 2003. In connection to the preceding arguments, Ms. Mallaba categorically denied the contention that the communique belonged to the Ministry. She argued that the Ministry had no legal mandate to make a such a statement. Replying on the point of objection No. 5, on exhaustion of available remedies, Ms. Mallaba submitted the objection was untenable for the reason 15 that the matter at hand concerned the decision of the FCT on the prohibited merger, which the respondent wanted to revive. She added that, rule 41 and 49 of the Competition Rules, 2018 were not applicable at this stage for a reason that there was already in place the decision of the FCT, which the respondent had no power to overturn. Ms. Mallaba further submitted that if the respondent was aggrieved by the decision of the FCT, she is the one who was supposed to exhaust available remedies under rule 50(1) of the Competition Rules, 2018 instead of reviving the merger. Ms. Mallaba wound up her reply submission by rejecting the respondent's prayer for costs. She added that the preliminary objections had no merit and prayed that the same be dismissed with costs. In his rejoinder, Mr. Sanga mainly pointed out that most of the arguments raised and precedents availed by him during his submission in chief were not traversed by Ms. Mallaba. He therefore prayed to maintain his submission in chief. However, he rejoined on some of the matters as follows: That, the definition of the term "suit" was made by the Court of Appeal in Tanzania Motor Services Ltd v. Mehar Singh, Civil Appeal No. 115 of 2005, CAT at DSM (unreported) to include this type of Application. That, since the Misc. Civil Cause was subsequently withdrawn before Porno, J, the order by Ismail, J also ceased to have effect. That, the applicant ought to go to the FCT if she thought that the decision of the FCT was being violated. He wound up his rejoinder by praying for the dismissal of the Application. 16 In this matter, the first point of the preliminary objection was questioning the jurisdiction of the Court to entertain the Application. It is trite law that when the question of jurisdiction has been raised, the Court shall have to determine it first before proceeding to other matters. (See: The case of Fanuel Mantiri Ng’unda V. Herman Mantiri Ng’unda & others (1995) T.L.R 155). Accordingly, I shall firstly decide on whether this Court has jurisdiction to determine the Application before it, in light of the fact that the respondent has filed a Notice of Appeal to the Court of Appeal. It has been argued by Mr. Sanga that the Application before the Court originated from the order of this Court by Porno, J which granted the applicant's prayer to withdraw her Misc. Civil Cause No. 591 of 2022 with a leave to refile it. That, this Application was born from the womb of the withdrawn application is a fact. The fact that the withdrawn and this newly filed Application are inseparable, has not been a matter of contention in these proceedings. Even when Ms. Mallaba made her reply submission, she did not resist the fact that the Application before this Court is a child of the previous Misc. Civil Cause No. 591 of 2022 that was withdrawn before my learned brother Porno,J with a leave to refile. It has also not been disputed that the respondent has filed a Notice of Appeal to the Court of Appeal to challenge the said decision by Porno, J. With these facts standing undisputed, it follows that this Court shall have to stay these proceedings pending the final determination of the appeal which has been commenced by the respondent before the Court of Appeal. This position of the law is stated in the cited cases of Tanzania Electric Supply 17 Company Limited v. Dowans Holding SA & Another (supra) and in Awiniel Mtui & Three Others v. Stanley Ephata Kimambo (supra). In Tanzania Electric Supply Company Limited v. Dowans Holding SA & Another (supra), the Court of Appeal stated, on page 7 to 8 of its typed Ruling, thus: "It is settled law in our jurisprudence, which is not disputed by counsel for the applicant, that the lodging of a notice of appeal in this Court against an appealable decree or order of the High Court, commences proceedings in the Court. We are equally convinced that it has long been established law that once a notice of appeal has been duly lodged, the High Court ceases to have jurisdiction over the matter". [Emphasis added]. It was Ms. Mallaba's prayer that if this Court would find that it had no jurisdiction to entertain the Application on account of the filed Notice of Appeal, then this Court should order stay of execution of the impugned decision of the respondent. However, guided by the the Court of Appeal in Awiniel Mtui & Three Others v. Stanley Ephata Kimambo (supra), the moment this Court became aware of the commencement of proceedings in the Court of Appeal, it's jurisdiction to entertain the matter ceased, instantly, save for those specified necessary matters. The Court of Appeal, stated thus; "...in matters relating to stay of execution once a Notice ofAppeal is filed under Rule 83, then the Court ofAppeal 18 is seized of the matter to the exclusion of the High Court. But we should quickly rejoin, applications for certificate on point of law or leave to appeal are on a different footing". [Emphasis added] Based on the above cited authorities, therefore, I find that my hands are tightly tied. Having noted that the proceedings have commenced before the Court of Appeal, the jurisdiction of this Court ceased. With lack of jurisdiction, even the order to stay the proceedings cannot be sought in this forum. For these reasons, I uphold the first point of preliminary objection. The same is full of merit and was well-argued by Mr. Sanga. Having, decide as above, the rest of the points of the preliminary objections can no longer be determined now, for want of jurisdiction. Accordingly, the Application shall stand stayed pending determination of the appeal by the Court of Appeal. No order as to costs. Order accordingly. Dated at Dodoma this 27th day of February, 2023. 19