CHOLE MJINI NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY)

AT DAR ES SALAAM MISC.CIVIL CAUSE NO.7120 OF 2024

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, MANDAMUS AND PROHIBITION AND IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT, CAP 310 R.E 2019. IN THE MATTER OF LAND ACT CAP 11 R.E 2019 AND THE TANZANIA INVESTMENT ACT NO.IO OF 2022

IN THE MATTER OF APPLICATION TO CHALLENGE THE DECISION OF THE REGIONAL COMMISSIONER OF PWANI REGION CONCERNING THE NON­

RENEWAL OF THE CERTIFICATE OF OCCUPANCY WITH TITLE NUMBER 54400 AT CHOLE MJINI, PWANI REGION

AND

IN THE MATTER OF THE APPLICATION TO ORDER THE ASSISTANT COMMISSIONER OF LANDS- COAST REGION AND THE DISTRICT EXECUTIVE

DIRECTOR OF MAFIA COUNCIL TO FACILITATE THE GRANTING OF THE CERTIFICATE OF OCCUPANCY OF PLOT NO. 1 AND FAM NO. 2031 LOCATED AT CHOLE ISLAND, MAFIA DISTRICT AND PLOT NO. 30 LOCATED AT KILINDONI, MAFIA DISTRICT TO THE TANZANIA INVESTMENT CENTER

AND

IN THE MATTER FOR APPLICATION FOR ORDER THAT THE DERIVATIVE 1 RIGHT OF PLOT NO. 2031 LOCATED AT CHOLE ISLAND, MAFIA DISTRICT AND PLOT NO. 30 LOCATED AT KILINDONI, MAFIA DISTRICT BE GRANTED TO

THE

APPLICANT

BETWEEN CHOLE MJINI CONSERVATION AND DEVELOPMENT LIMITED .. APPLICANT

VERSUS THE REGIONAL COMMISSIONER OF PWANI REGION......... 1st RESPONDENT

THE ASSISTANT COMMISSIONER OF LANDS-PWANI REGION............................................................................. 2ndRESPONDENT

THE DISTRICT EXECUTIVE DIRECTOR OF MAFIA COUNCIL......................................................................................... 3rdRESPONDENT 4 THE ATTORNEY GENERAL................................................................................ thRESPONDEN

RULING S.M. MAGHIMBL J: The application beforehand was lodged under the provisions of Rules 5(1), 5(2)(a), 5(2)(b), 5(2)(c), 5(2)(d) and 5 (3), 5(4), 5(5), 5(6), and 7(1), 7(5) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules 2014 and Section 18(1), and 19(1), 19(2) and 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310 R.E 2019, and any other enabling 2 provisions of the law). In the Chamber Summons, the applicant is moving the court for the following orders:- a) That this Honorable Court be pleased to grant, leave to the Applicants to file an application for Judicial Review or prerogative orders of certiorari and mandamus ex parte against the illegal decision of the 1st Respondent, the Regional Commissioner of Pwani Region, to deny the Applicant the right to renew the Certificate of Occupancy with Title Number 54400 located at Chole Island, Mafia District. b) In alternative to relief sought under Paragraph 1 immediately hereinabove, this Honorable Court be pleased to grant the said leave to the Applicant to file an application for judicial review or prerogative orders of certiorari and mandamus without hearing. c) Pursuant to the grant of the said leave to file an application for judicial review, this Honorable Court be pleased to grant an order of mandamus and quash the 1st Respondent

directive and decision that the Certificate of Occupancy should not be renewed so that the 1st Applicant is granted a derivative title as per section 19(2) (b) of the Land Act CAP 113 of R.E 2019 and that the 1st Applicant can proceed with its Tanzania Investment Center 3 authorized investment plans of expansion of its investment projection. d) That this Honorable Court be pleased to grant an order of mandamus that the 1st Respondent withdraw its statement that the Applicant did not follow the proper legal procedures in the grant of the Certificate of Occupancy with Title Number 54400 located at Chole Island, Mafia District. e) That this Honorable Court be pleased to grant an order of mandamus that the 2nd and 3rd Respondents facilitate without any further delay the granting of the Certificate of Occupancy to the Tanzania Investment Center, for the Plot No. 30 situated at Kilindoni, Mafia District with the letter of offer of the Right of Occupancy with Ref. LD/MF/15498/8 , Farm No. 2031 situated at Chole Island, Mafia District through the Certificate of Occupancy Title No. 54400 and Plot No. 1 situated at Chole Island, Mafia District by a Letter of Offer of the Right of Occupancy with Ref LD.MF.2283/I/LMR, in order to then grant the derivative right titles to the Applicant. f) That this Honorable Court be pleased to grant an order of mandamus that the derivative title of the

Applicant be issued 4 without any further delays, since the process has been frustrated for the last 4 years. g) That this Honorable Court be pleased to grant an order of mandamus to compel the 1st Respondent to withdraw his directives and statements, failure to which his statements amount to forced expropriation of the Applicant's investment contrary to section 29(1) and (2) of the Tanzania Investment Act No. 10 of 2022. h) That the 1st Respondent be condemned to pay the Applicant's costs of the application; and i) That the Honorable Court be pleased to make any other orders and grant reliefs as it deems just and fair to make or grant in the circumstance. The application was brought at the instance of Shikana Group Limited and is supported by the statement of the Applicant Chole Mjini Conservation and Development Company Limited signed by its 2 Directors and the Affidavit of the Applicant's Director. On their part, the respondent filed a preliminary objection on point of law to the effect that this Application contravenes Rule 5 (1) of the Law Reform (Fatal Accidents And Miscellaneous Provisions) Act ("The Act") which prohibits an application for judicial review to be made unless a leave 5 to file such application has been granted by the court. The objection was disposed by way of written submissions. In their submission to support the objection, the respondent,

duly represented by Ms. Jacquiline Kinyasi, learned State Attorney, submitted that the Applicant filed this application praying for reliefs as can be seen from paragraph 2 (a) up to 2 (e) of the Applicants statement in support of the Application. That the Law governing matters pertaining judicial review, that is the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act provides that a person applying for prerogative orders in the High Court must first apply for leave. That if granted, the leave will be followed by subsequent main application for the prerogative orders. He argued that before one knocks the door of the Court for orders of Certiorari, mandamus or prohibition, he needs to first be granted a leave to file for those orders. The respondent's argument is that in this Application, although the heading of the application has been drafted to portray that what is before the Court is an application for leave to file certiorari, but this is not reflected in the statement in support of this application. That Rule 5 (2) provides for accompanying documents to include a statement which shall among other things, contain the reliefs sought. He went on submitting that under paragraph 2 of the Statement, the Applicant has pleaded that she is praying for orders of mandamus against the Respondents. He supported his 6 argument by citing the case of Emma Bayo v. the Minister for

Labour and Youths Development, the Attorney General and Tanzania Posts Corporation, Civil Appeal No. 79 of 2012 where at page 7 it was held; "it is now an established part of the procedural iaw 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" Further that the 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). He concluded that the Applicant having filed this application praying for orders of mandamus against the Respondents prior to have obtained leave first is total against the dictate of law. The respondent's prayer was that in the weight of the cited laws and cases, this application to be struck out with cost. In their reply, Mr. Kagasheki for the applicant submitted that the Respondents' submission is erroneous, misleading and baseless. That looking at the pleadings in hand i.e., the chamber summons, the statement in support of the application together with the Applicant's affidavit in support of the application, and the reliefs sought by the Applicant in the said 7 application is for leave to apply for orders of certiorari, mandamus, and prohibition. He argued that the Respondents’ submissions have been

heavily centered on the averments contained in the Applicant's statement in support of the application particularly at paragraph 2 whereby the reliefs sought have mistakenly been written to imply the Applicant is seeking for orders for judicial review in which that is not the case in hand. That looking at the Applicant's application and the reliefs sought, it is for leave to file an application for judicial review and not for orders of judicial review as averred by the Respondents. Therefore, he concluded, the objection itself in terms of the pleadings in hand cannot stand as the application speaks for itself. Mr. Kagasheki also raised an argument that a preliminary objections should be raised from the pleadings filed before the Court and as such, guided by the principals set in Mukisa Biscuits's case and Betty Kasirri's case. That the objection raised falls short of the qualifications set on a preliminary objection and therefore the same should be overruled with costs. On the cited case of Emma Bayo vs The Minister for Labour and Youths Development & Others (supra) and the case of Attorney General vs Wilfred Onyango Nganyi @ Dadi and 11 others (supra), he fully subscribes to the position stated out in the mentioned case with regards to the requirement of seeking of leave before applying for an order of judicial review. However, he argued that the mentioned cases

are 8 inapplicable and distinguishable from the present application/circumstances in hand. That in the present application the Applicant is seeking for leave to file for judicial review. In fact, the objection raised by the Respondents was not among the issues discussed for determination in the referred cases. That in the cited case of Emma Bayo (supra), the Appellant had applied before the High Court of Tanzania at Arusha for leave to file an application for prerogative orders of certiorari and mandamus against the Respondents and the same was denied because the Appellant had not presented before the High Court sufficient reasons to convince the trial court into granting the reliefs which the appellant had sought, hence the appeal where the Court of Appeal in its determination held that; "... We also respectfully agree with both Mr Materu and Mr. Chavula that the stage of leave serves several Important screening purposes. It is at the stage of leave where the High Court satisfies itself that the applicant for leave has made out any arguable case to justify the filing of the main application. At the stage of 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 of the decision ofa tribunal subordinate to the High Court. At the leave stage is where the applicant shows that he or

she has sufficient interest to be 9 allowed to bring the main application. These are the preliminary matters which the High Court sitting to determine the appellant’s application for leave should have considered while exercising its Judicial discretion to either grant or not to grant leave to the applicant/appellantherein..." As it can be observed from the judgement above, argued Mr. Kagasheki, the issue regarding the difference of the prayers contained in the chamber summons, statement in support of the application and the affidavit in support of the application was never the subject of the appeal nor was it ever determined before the said Court. As such, he urged the Court to ignore the case cited by the Respondents since it cannot be applied as a precedent because the facts applicable laws and issues which were determined arc different from the ones in the present application. Mr. Kagasheki was also quick to make an alternative submission on which he termed as an unlikely event where this Court is persuaded that this application is incompetent on the grounds advanced by the Respondents, then the objection should not defeat this application. His argument was that the only order that may be obtained under the present circumstances, would be amendment of the application, particularly under the said paragraph 2 of the statement in support of the application. That it is important

to note that such an order would augur well with the spirit 10 envisioned in rule 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G.N. No. 324 which empowers this Court, in matters not provided for by the said rules, to apply the practice and procedures applicable in this Court. He then referred to the Civil Procedure Code Cap 33, and its rules, which according to him would perfectly apply including the recent principle of overriding objectives as enshrined in sections 3A and 3B of the Civil Procedure Code Cap 33. That should this Court finds the objection meritorious, then the court pleased to order the Applicant to amend paragraph 2 of the statement in support of the application to reflect the prayers sought in the chamber summons and the affidavit in support. He went on submitting that the reasons upon which the court should invoke the principle of overriding objective. That firstly, the fact that the present application is for leave to apply for judicial review and given the fact that the Respondents herein have not, in anyway whatsoever been prejudiced from the Applicant's honest mistake as seen under paragraph 2 of the statement in support of the application. That should the Court apply the principle and order an amendment of the application, this will remove the inconvenience of filing potential applications

for extension of time, a fresh leave for judicial review and an eventual judicial review. Secondly, that the honest mistake by the Applicant herein does not go to the root of the ii present application in hand i.e. the same does not touch on the issue of jurisdiction of this Court. He supported his submission by referring the Court to the decision of the Court of Appeal of Tanzania in Attorney General & Another vs Fatma Amani Karume (Civil Application No, 694/01 of 2021) [2023] TZCA 17611 (11 September 2023) whereby the Court at pages 18-19 held that; "... The above paragraph making reference to the drawn order as being attached to the affidavit, but then physically omitted, cieariy shows that the omission to include the actual drawn order was an excusable accidental lapse. Thus, we hold that this is a fit case, to invoke the principle of overriding objective by injecting oxygen to the substantive application so that it is heard on merits as opposed to striking it out A display of a larger picture of the matter shows that, striking out this application at this time, even if we were to do so, will not necessarily make any better Mr. Kibatala's side of the case, because doing so will not in iaw, end the legal wrangle. Rather, it will create a potentiality for a temporary losing party to start aii over again by lodging a similar application after another one for extension of time

will have been heard and determined. AH this, if it is to happen, which is a iikeiy eventuality, will certainly take longer 12 and to the disadvantage of the respondent's side, unless Mr. Kibataia is insensitive of the amount of time which the whole issue has taken and is likely to take if we are to agree with him..." He further cited the decision of the Court of Appeal of Tanzania in Yakobo Magoiga Gichere vs Fenina Yusuph (Civil Appeal 55 of 2017) [2018] TZCA 222 (9 October 2018), whereby at pages 13 and 14 the Court expounded on the application of the principle of overriding objectives, which is to achieve justice. The CAT held that; "...With the advent of the principle of Overriding Objective brought by the Written Laws (Miscellaneous Amendments) (No.

3) Act, 2018 [ACTNo. 8 of 2018] which now requires the courts to deal with cases justly, and to have regard to substantive justice..." His conclusion was that from the foregoing submissions, analysis of the pleadings and legal authorities cited, the objection raised lacks merit and prayed that the same be overruled, with costs and this application for leave to file the judicial review be heard and determined on merit. In rejoinder, Ms. Kinyasi submitted that although the Applicant is of the view that the raised objection is not a pure point of Law, but has failed to fault the raised objection for not being a pure point of law. It was the 13 Respondents submission that the raised objection is a pure point of Law as the Application falls short for contravening Rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions which makes it mandatory for one to first apply for leave before knocking the doors of the Court to apply for writs of judicial review. He argued that it a cardinal principle of Law that parties are bound by their pleadings and no otherwise. That going through the filed pleadings, even in the alleged chamber summons has been pleaded that the Applicant is praying for orders of mandamus and not what she is submitting now from the bar. That the Applicant has clearly pleaded under paragraph 2 of the Statement which contains reliefs sought that he

is praying for orders of mandamus against the Respondents. Ms. Kinyasi went submitting that the Applicant has misunderstood the relevancy of the cited case of Emma Bayo whereby at page 7 in that case the Court among other things discussed that 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. He prayed that the Court to be guided with that Principle and find that failure to obtain leave prior applying for writs of mandamus, certiorari or and prohibition is fatal. On the application of overriding objective, Ms. Kinyasi submitted that the Principle is not applicable at hand as the same cannot be applied blindly against the mandatory provisions of the procedural law which go to the very 14 foundation of the case. That this can be gleaned from the objects and reasons of introducing the Principle, which enjoins the courts to do away with technicalities and instead, should determine cases justly. That according to the Bill to the Amending Act, it was said that the proposed Amendments are not designed to blindly disregard the rules of procedure that are couched in mandatory terms. He concluded that having filed this application praying for orders of mandamus against the Respondents prior to have obtained first leave is total against the dictate of law. He reiterated his prayer

that in the weight of the cited laws and cases this application to be struck out with cost. Having heard the parties, determination of this application shall be in two folds. The first one is on the substance of the objection, that the application beforehand contravenes the dictates of contravenes Rule 5(1) of the Act which requires leave to file review be obtained before filing an application for judicial review. Should the objection be sustained, Mr. Kagasheki for the applicant made an alternative prayer that the court invokes the Oxygen Principle by applying overriding objective to cure the discrepancy. Starting with the substance of the objection, Ms. Kinyasi argued that the current application is incompetent for containing prayers which would only be sought after leave to file judicial review has been obtained. 15 Particularly, Ms. Kinyasi argued that those prayers contravene the dictates of contravenes Rule 5 (1) of the Act. The discrepancy is obvious hence it should not detain me much. This is evidenced in their submissions whereby the applicant's Counsel admits that in the Applicant's statement in support of the application, particularly at paragraph 2, the reliefs sought have mistakenly been written to imply the Applicant is seeking for orders for judicial review in which that is not the case in hand. That is the applicant's version of the story, but what I see before

me is an omnibus application whereby prayers which would have otherwise been brought in different applications are brought under one application. The issue under the circumstances is whether the reliefs can be lumped in one application. According to Ms. Kinyasi, one has to first obtain leave to lodge an application for review. I totally subscribe to her submissions. Even if the applications are to be lumped in one omnibus application, the question remains whether the two applications can be lodged together. Here we look at what the court has to determine while determining the two distinct prayers. In the cited case of Emma Bagayo, while elaborating on what should the court look at while determining an application for leave, the Court of Appeal held at page 8: 'We also respectfully agree with both Mr Materu and Mr Chavula that the stage of leave serves several Important 16 screening purposes. It is at the stage of leave where the High Court satisfies itself that the applicant for leave has made out any arguable case to justify the filing of the main application. At the stage of 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 of the decision of 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 should have considered while exercising its judicial discretion to either grant or not to grant leave to the applicant/appellant herein. The Court is clear in the cited holding that it is at the stage of leave that the applicant shows that he or she has sufficient interest to be allowed to bring the main application. This means prior to leave being granted, the applicant is not at liberty to bring an application. In tailoring to our current case, it is obvious that the prayers of the applicant in prayers (c) to (h) can not be brought before leave to do so is granted by the court. On those findings and having an admission by the plaintiff that the prayers 17 are "mistakenly written to imply" the application before me is incurably defective for contravening the provisions of Rule 5 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act. Consequently, the same is hereby struck out. Dated at Dar-es-salaam this 29th day of July, 2024 18