chalinze cement company ltd another vs registrar of companies another 2023 tzhc 20991 15 september 2023

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 30 OF 2023 IN 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 AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS BETWEEN CHALINZE CEMENT COMPANY LTD……………………1ST APPLICANT MOHAMED HUSSEIN BAHADELA……………………… 2ND APPLICANT VERSUS REGISTRAR OF COMPANIES …………………………1ST RESPONDENT THE HONORABLE ATTORNEY GENERAL……………2ND RESPONDENT RULING 14th & 15th September, 2023 DYANSOBERA, J.: This is an application for leave to apply for judicial review. It has been filed by Chamber Summons under Order XXXVII rule 2 (1), 4 and Section 95 of the Civil Procedure Code [CAP. 33 R.E.2019], Section 2 (3) of the Judicature and Application Page | 1 of Laws Act [CAP. 358 R.E.2019], Sections 18 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [CAP 310 R.E. 2019] and Rule 5 (1), (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014, for leave to apply for orders of:- 1. Certiorari to bring into the High Court and quash the decision of the 1st respondent to de-register the 1st application given on 3rd March, 2023. 2. Mandamus to compel the 1st to maintain the status quo ante that obtained before the deregistration order. 3. Costs be provided for and, 4. Any other relief or orders a the Honourable court shall deem fit and just to grant. The application is supported by a statement of the claim and the verifying affidavit affirmed by Mohamed Hussein Bahadela, the 2nd applicant but resisted by the respondents through the respondents’ joint reply statement and counter affidavit sworn by Isdor Nkindi, the Principal Officer in the employment of the 1st respondent. The bedrock of this application is the General Notice 1125 issued in the Government Gazette dated 3rd March, 2023 couched in the following terms: - Kampuni ilyofutwa katika daftari la Makampuni (Companies Act No. 12 (sic) of 2002). Imetolewa Ilani chini ya Kifungu cha 400A (3) Sheria ya Makampuni Sura ya 212 kama ilivyorekebishwa na Sheria Page | 2 Marekebisho ya Sheria Na. 3 ya 2019, kwamba Kampuni ifuatayo imefutwa katika daftari la Makampuni toka tarehe ya Tangazo hili CHALINZE CEMENT COMPANY LIMITED SGD NYAISA, G.S. Msajili wa Kampuni. At the time of hearing this application, Ms Dorah Malaba assisted by Ms Abriat Kivea, both learned Counsel, stood for the applicants and argued in support of the application whereas Mr. Ayubu Gervas Sanga, learned State Attorney, represented the respondents and argued in opposition thereof. Ms Dorah Malaba adopted the contents of the chamber summons, the supporting affidavit and the statement of facts to be part of her submission. Likewise, Mr. Ayubu Gervas Sanga adopted the respondents’ counter affidavit and the statement in reply to form part of his submission. Ms Dorah Malaba, in her submission, contended that an application for leave is a necessary step towards the grant of the prerogative orders. Being aware of the fact that the grant of the leave is at the court’s discretion and subject to the fulfilment of the conditions set out by the Court of Appeal in the case of Emma Bayo versus The Minister for Labour and Youth Development and others, Civil Appeal Page | 3 No. 79 of 2012 CAT at Arusha (unreported) at page 8, she urged this court to find that the applicants have managed to fully satisfy the said conditions. What’s more, relying on Article 107A (2) of the Constitution of United Republic, 1977 as amended from time to time, she was of the view that the court is enjoined to dispense justice in accordance with the law without being unduly tied up with technical provisions which may obstruct dispensation of justice. Mr. Ayubu Gervas Sanga made his reply. It is the requirement of the law that before applying for prerogative orders, the applicants must first seek and obtain leave of the court. This requirement is underscored under rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Procedure and Fees) Rules, GN No. 324 of 2014. Putting emphasis on this requirement, the Court of Appeal of Tanzania in the case of Emma Bayo v. the Minister for Labour and Youths Development, the Attorney General and Tanzania Posts Corporation (supra), observed: -“ ‘It is now an established part of the procedural law of Tanzania that a person applying for prerogative orders in the High Court must first apply for leave, which if granted will be followed by a subsequent main application for the prerogative orders…..”. This position was also underscored by the same court in the case of Attorney General v. Wilfred Onyango Mganyi @ Dadii and 11 others, Criminal Appeal No. 276 of 2006 (unreported), cited to me by the applicants’ learned counsel. Page | 4 Both sides are agreed on the conditions governing the grant of leave to apply for judicial review which were well settled in Emma Bayo case (supra). These conditions are the following. One, whether the applicants for leave have made out any arguable case to justify the filing of the main application. Two, whether the applicants are within the six months limitation period within which to seek a judicial review of the decision of the Registrar of Companies and three, whether the applicants have shown that they have sufficient interest to be allowed to bring the main application. In the instant application, Ms Dorah Malaba, the applicants’ learned counsel has submitted and Mr. Ayubu Gervas Sanga, the learned State Attorney for the respondents has admitted, that the applicants have fulfilled those three prerequisites. The learned State Attorney, however, was of the view that the applicants have failed to fulfil the fourth condition which is the failure to exhaust local remedies. He argued that the striking off the register of the 1st applicant was made under Section 400A (3) of the Companies Act [CAP. 212 R.E.2002] and sub- section (6) provides for an alternative remedy but that the applicants did not exhaust that remedy before resorting to court on judicial review. He was emphatic the fulfilment of this requirement was an important step before the applicants resorted to court seeking judicial review. In support of this argument, Mr. Sanga placed reliance on the cases of Abadiah Salehe v. Dodoma Wine Co. Ltd [1990] TLR p. 113 and Attorney General v. Lohay Aknonaay and Joseph Lohay [1995] TLR 8 on the authority that the courts will not normally entertain a matter Page | 5 for which a special forum has been established unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum. The learned State Attorney elaborated that the applicants had to apply by way of a petition to the court to have the struck off company restored. He observed that the applicants had made an attempt of exhausting that remedy by filing Misc. Cause No. 230 of 2023 between the present applicants and respondents and the case was before Hon. Bwegoge, J. Admitting that he had no copy of the decision of this court, he prayed the court to take judicial notice under section 59 of the existence of the application for restoration. In her brief rejoinder, the applicants’ learned counsel reiterated her submission in chief insisting that the applicants had met the conditions set out in the case of Emma Bayo (supra). On the remedies under section 400A (6) of the Companies Act, she submitted that the section did not specify the mode of accessing the court and the argument by Mr. Sanga that the applicants had to file their application to court by way of a petition was not supported by the law. I have, with circumspection, considered the rival arguments of the learned State Attorney and the learned advocate on this aspect. I have equally taken into account the law and the relevant case laws. The crucial question in this application is whether this application has merits and should be granted. I think the answer must be in the positive. The reasons for my finding are not far to find. Page | 6 In the first place, section 400A (6) cannot, by any stretch of imagination, be said to be a local remedy to which the applicants had to resort to first before seeking the prerogative orders. This is partly because, the existence of local or internal remedy, for that matter, envisages a situation whereby the institution in which the violation is alleged to have occurred should first have opportunity to redress it by its own means within the framework of its internal system before resorting to external organs such as the court. This is not the case with section 400A (6) which requires an aggrieved entity to go to court. And partly because, as rightly submitted by the applicants’ learned counsel, the section referred to this court by the learned State Attorney does not specify a special forum and the mode of accessing it. Second, the existence of a local remedy as stated by the respondents through Mr. Ayubu Gervas Sanga, does not bar access to the application for prerogative orders. I will explain. This court (Hon. Massati, J as he then was) in Bin Johar General Trading LLC v. the Commissioner General, Tanzania Revenue Authority and 2 others, Misc. Commercial Case No. 24 of 2006, in an application for leave to apply for prerogative orders, observed: - ‘In obvious cases the court may also examine whether the applicant has exhausted particularly alternative statutory remedies. But it has frequently been held by this court that the availability of alternative remedies per se, would not bar access to the application for prerogative orders. Page | 7 This same court (Hon. Mwalusanya, J. as he then was) in the case of John Byombalirwa v. the Regional Commissioner and Police Commander, Bukoba [1986] TLR 73 held that the existence of alternative remedy is not necessarily a bar to the grant of leave to apply for judicial review. So, the availability of an alternative remedy is neither a necessary a prerequisite nor a bar to access to judicial review in appropriate cases like the one under consideration. Third, the cases cited by the learned State Attorney are inapplicable to the circumstances obtaining in the case on hand. For instance, in the case of Abadia Salehe v. Dodoma Wine Co. Ltd [1990], Hon. Massanche, J. had the following to observe: - ‘it is entirely correct proposition to say that an order of mandamus is a discretionary remedy. The order is not one of right and it is not issued as a matter of course. The purpose of the order is to supply defects of justice. It will therefore issue where there is no specific legal remedy enforcing the specific legal right claimed or where, although there is an alternative legal remedy, such mode of redress is considered by the court to be less convenient, beneficial and effectual. As a general rule, the court will refuse to issue the order if there is another convenient or feasible remedy within the reach of the applicant’ In that case, this court considered that there was a contractual relationship between the parties and the remedy would have been to sue the employer for wrongful dismissal and not to resort to judicial review. This court further observed that in that case there was a breach of contract and there were both a remedy and a special forum for redress. Page | 8 As the learned State Attorney will agree with me, in the case in question, there is no breach of contract and as alluded hereinbefore section 400A (6) of the Act cannot be regarded as a local remedy which the applicants had to first exhaust before resorting to judicial review remedies. In summing up, I hold as I hereby do, that at this leave stage, the applicants having satisfied the conditions set out in the Emma Bayo case and in view of the position of this court in the cases of Bin Johar General Trading LLC (supra) and John Byombalirwa v. the Regional Commissioner and Police Commander, Bukoba (supra), the applicants’ application for leave to apply for judicial review has considerable merit and is precedented. Leave is, accordingly, granted to the applicants to apply for judicial review, the right they have to exercise according to law. Costs to be in the substantive application. W. P. Dyansobera JUDGE 15. 9. 2023 This ruling is delivered at Dar es Salaam under my hand and the Seal of this Court on this 15th day of September, 2023 in the presence of Ms Dorah Malaba learned Page | 9 Advocate for the applicants and Mr. Mathew Fuko, learned State Attorney for the respondents. W.P.Dyansobera JUDGE Page | 10