COSCO SHIPPING CORPORATION

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) MISC. CIVIL CAUSE NO. 20261 OF 2024 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR PREROGATIVE ORDERS OF CERTIORARI AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS MISCELLANEOUS PROVISION) ACT [CAP. 310 R.E. 2019] AND IN THE MATTER OF A DECISION BY TANZANIA SHIPPING AGENCIES CORPORATION DATED 20 FEBRUARY, 2024 (BETWEEN MAX CARL INVESTMENT COMPANY LIMITED AND TANZANIA PORTS AUTHORITY AND CHINESE- TANZANIAN JOINT SHIPPING COMPANY) BETWEEN COSCO SHIPPING SPECIALIZED CARRIERS CO. LTD ………… APPLICANT AND TANZANIA SHIPPING AGENCIES CORPORATION…………. 1ST RESPONDENT THE HONORABLE ATTORNEY GENERAL ………………... 2ND RESPONDENT MAX CARL INVESTMENT LIMITED …………….………… 3RD RESPONDENT TANZANIA PORTS AUTHORITY …………………..…………… 4TH RESPONDENT CHINESE- TANZANIA JOINT SHIPPING COMPANY……….. 5TH RESPONDENT 1 RULING 18th November & 29th November, 2024 BWEGOGE, J.: The above-named applicant instituted an application herein praying for leave to file an application for judicial review against the decision of the 1st respondent named above rendered on 20th February, 2024, among others. This application is brought under the provisions of sections 17(2) and 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 R. E. 2019]; and rules 4, 5(1), (2)(a)(b)(c)(d), (3), and 6 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 [GN No. 324 of 2014]. The application is supported by the affidavit of Uhuru Michael Kikwete, the applicant’s attorney. The applicant was represented by Ms. Diana Bahesha, learned advocate; and the 1st, 2nd, and 4th respondents herein were represented by Mr. Francis Wisdom, the learned state attorney. The 3rd and 5th respondents absconded to enter an appearance in court. When this matter was brought for hearing, Mr Wisdom, the respondent’s counsel, enlightened this court that they don’t intend to contest the 2 application herein. Consequently, the applicant’s counsel prayed this court to grant the application herein. In our jurisdiction, the applicant seeking grant of leave to institute judicial review against the decision of the 1st respondent is obliged to establish, the following matters: First, whether the applicant has interest or locus stand; secondly, whether the application has been made timeously; and thirdly, whether the applicant has made out a prima facie case/ arguable points, among others. See the cases: Hamis Babu Bally vs Judicial Officers Ethics Committee and 3 Others (Civil Appeal No. 448 of 2021) [2024] TZCA 1010; Attorney General vs Wilfred Onyango Mganyi @ Dadii & 11Others, Criminal Appeal No.276 of 2006 (unreported); Emma Bayo vs The Minister for Labor and Youth Development and Two Others, Civil Appeal No. 79 of 2012[2013] TZCA 190; F.3329 CPL Buberwa Leonard Magayane and Another v. The Minister for Home Affairs and 2 Others (Civil Appeal No. 119 of 2020) [2023] TZCA 17399; and Bageni Okeya Elijah VS. The Judicial Service Commission & 2 Others, Misc. Civil Cause No. 7529 Of 2024 (2024) TZHC 5875 in this respect. In particular, in the case of Emma Bayo vs The Minister for Labor and Youth Development and Two Others (supra), the Apex Court 3 expounded the following factors for consideration in granting leave to file a petition for judicial review. “It is at the stage of leave where the High Court satisfies itself that the applicant for leave has m ade out any arguable case to justify the filing of the m ain application. At the stage of leave the High Court is also required to consider w hether the applicant is w ithin the six m onths lim itation period w ithin w hich to seek a judicial review of the decision of a tribunal subordinate to the High Court. At the leave stage is where the applicant show s that he or she has sufficient interest to be allow ed to bring the m ain 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....” [Emphasis mine]. I would now turn to the matter at hand to find whether the applicant herein passed the above scales of justice. In substance, the affidavit supporting this application deponed by the applicant’s attorney bears depositions thus: The applicant is a limited liability company incorporated under the laws of the People’s Republic of China, engaged in the marine transportation business. On 15th June, 2023 the 3rd respondent loaded the excavator on board of the vessel MV XING FU SONG under the agency of the 5th respondent, vide the bill of lading No. XFS76SHDAR01. The excavator was to be shipped from Shanghai to Dar es Salaam. Allegedly, the said excavator which the deponent 4 identified as a second-hand machine, was damaged on 15th June, 2023 at the port of discharge-Dar es Salaam following the accident occasioned by crane no. 4 operated by the 4th respondent. Consequently, the 3rd respondent lodged the claim before the 1st respondent (TASAC) against the 4th (TPA) and 5th (SINOTASHIP) respondents herein. The 1st respondent delivered its decision on 20th February, 2024 whereas the 1st respondent found the applicant liable for the alleged damage of the excavator and ordered her to compensate the 3rd respondent for the loss suffered despite the fact that the applicant was not a party to the proceedings. Moreso, it is deposed in the supporting affidavit that the applicant is aggrieved by the decision of 1st respondent for the following reasons; one, the 1st respondent has exceeded its jurisdiction in presiding over and entering the decision; two, the applicant has been penalized while she was not a party to the proceedings; three, the applicant has been condemned unheard; four, the 3rd respondent adduced no evidence to substantiate the liability of the applicant; and fifth, the proceedings were irregular for failure to serve the applicant with a demand notice before commencement of the said proceedings as although the 5th respondent is the shipping agent of the applicant, the same was not the authorized 5 representative of the applicant in the proceedings before the 1st respondent. Based on the observations made herein above, the applicant has demonstrated the following matters; first, the applicant intends to challenge the decision of the 1st respondent, a mandated authority in regulating shipping agencies, delivered on 20th February, 2024; secondly, the application herein was filed in this court (on 16th August, 2024) within six months from the date the impugned decision was delivered; thirdly, the applicant has shown that she has interest in the matter; and fourthly, it has been established by the applicant that the same has arguable/prima facie case against the respondents. Given the foregoing, I am of the considered opinion that the applicant has met the requirements for the grant of leave sought. Thus, I find the application herein meritorious. The application is hereby granted. The applicant to file the intended judicial review within 14 days. I so rule. DATED at DAR ES SALAAM this 29th November, 2024. O. F. BWEGOGE JUDGE 6