Hamisi Swaihiba Misc Civil Application No 4285

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN MWANZA SUB-REGISTRY AT MWANZA MISC. CAUSE NO. 4285 Of 2024 IN THE MATTER OF AN APPLICATION FOR ORDERS OF MANDAMUS, PROHIBITION AND CERTIORARI BETWEEN HAMIS SWAHIBU FUPI T/A SHUSHAI INVESTMENTS ……….….. APPLICANT AND GEITA TOWN COUNCIL ..................................................... 1ST RESPONDENT THE REGIONAL COMMISSIONER, GEITA REGION...............2ND RESPONDENT REGIONAL ADMINISTRATIVE SECRETARY, GEITA REGION ………………………………………………...…... 3RD RESPONDENT THE ATTORNEY GENERAL...................................................4TH RESPONDENT RULING 3rd October & 15th November, 2024 CHUMA, J The instant application is centered on judicial review whereby HAMIS SWAHIBU FUPI (hereunder shall be referred to as the applicant) is seeking for this Honourable court to issue the prerogative orders in terms of certiorari and mandamus and prohibitor order against the decision and act of the first to third respondents. Principally, the applicant among other things prays for this court to quash the decision and act made by the first to third respondents ordering the applicant to demolish, their units composed of toilets, kitchen, and office in the 1 commercial property located at Maua area Geita Town, built and operated by the applicant. Two an order of mandamus compelling the first to third respondents to allow the applicant to proceed with his investment as planned and approved by the first respondent. Three an order of prohibition prohibiting the first to third respondents from demolishing or compelling the applicant to demolish three units composed of toilets, kitchens, and offices in a commercial property built and operated by the applicant. And any other reliefs this court may deem fit to grant. The application is made by the chamber summons under sections 2 (1) and (3) of the Judicature and Applications of Laws Act (Cap 358 R.E. 2019) Sections 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act (Cap 310 R.E. 2019) and Rule 8 (1) (a) (b), (2), (3) and (5) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fee) Rules, G.N. No. 324 of 2014). The application is supported by the affidavit sworn by the applicant. 2 This application however encountered preliminary objection which is subject to this decision. The preliminary objection contains two points to the effect that, one, the application is incompetent for want of the decision of the second respondent. Two is that the matter is related to the contract, this application is an abuse of court process. The raised objections were argued by way of written submissions. The submissions for the respondents were filed by Mr. Felician Daniel State Attorney and that of the applicant were filed by Advocate Geofrey Kange. In his submission, Mr. Felician Daniel State Attorney for the respondents based on section 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act Cap 310 RE 2019 stated that this court cannot issue a writ of mandamus, certiorari, and the prohibition against the second and third respondents for want of the absence of any act, proceedings or an order issued by the second and third respondents to the applicant subject to review. He further argued that paragraph 8.1 of the applicants’ affidavit indicates that the first respondent received a letter from the second respondent with ref No. FA/204/279/01C/65 dated 6th November 2023 requiring him to demolish all units built on cement blocks before 10th November 2023. Paragraph 14 of the applicants’ affidavit indicates 3 administrative acts and omissions by the respondents that are amenable through the process of judicial review by this court but there is no error on the face of the record in which this court can examine. In paragraph 12 the applicant is claiming the right to be heard but the court under the circumstances cannot be in a position to appreciate where and how the second and third respondents went wrong for the court to fault. Mr. Felician supported his submission by the case of Rahel mbuya V Minister for Labour Youth Development and the AG [2008] TLR 304 on pages 6 and 8 and that of F.3329 CPL Buberwa Leonard Magayane and Another V Minister for Home Affairs and Others Civil Appeal No.119 of 2020 on page 9. More so Mr. Felician Daniel SA stated that in the absence of a decision or letter by the second respondent, the court cannot issue a writ of certiorari to the second and third respondents. He once again cemented his argument by citing the case of Rehema Ally Kinyaka V Tanzania Institute of Accountancy Misc. Civil Application No. 21 of 2018 where the court held that, since the applicant omitted to annex the decision subject to review, the application is incompetent and hence dismissed. Arguing on the second limb of the objection, Mr. Felician Daniel stated that, according to paragraphs 2, 4, and 5 of the applicants’ affidavit 4 this application originates from the contractual relationship i.e. on the lease agreement dated 12 May 2023 as per annexture HSF-3. Close 7.1 of the lease agreement provides for a mode of dispute resolution in case of any dispute between the parties to the agreement. And that the reliefs sought under chamber summons can only be entertained by the court where there is no alternative remedy. Since the matter emanates from the lease agreement a proper cause to take was to sue for breach of contract against the first respondent who is in a contractual relationship with. Mr. Felician referred this court to several cases including the case of Assistant Registrar of Building V Frederick Kibwana [1987] TLR 84 where the court held that certiorari being a discretionary remedy for courts to issue cannot be issued in cases where there is already a contractual relationship between Land Lord and tenant, a relationship of a commercial or business nature. The recourse to the courts of law to adjudicate on the breaches of contract would be a better procedure. He finally urged this court to dismiss the instant application. In response, Mr. Kange advocate for the applicant strongly challenged the submission by Mr. Felician State Attorney. He contested the non-attachment of the decision subject to the sought review, by 5 arguing that an annexture SHF-7 attached to the applicants’ application indicates that the second and third respondents instructed the first respondent to order the applicant to demolish all buildings built by bricks in the leased premises. Hence it is wrong for Mr. Felician to argue that there was no decision of the second and third respondents because the second respondent is a mover of the decision to order the applicant to demolish herein above mentioned buildings. He prayed this court to overrule the raised objection for want of merit. Reverting to the second limb of objection Mr. Kange contended that according to annexture SHF-3, the second respondent is not privy to the lease agreement between the applicant and the first respondent but since is the one who instructed the first respondent to order the applicant to demolish those buildings in the leased premises, is a factor that led to this judicial review. And that the applicant could not sue the second respondent on issues related to the contract between him and the applicant. Mr. Kange at last submitted that the raised second point of objection is misconceived and should be overruled. In his brief rejoinder, Mr. Felician reiterated his submission in chief which I see is of no use to reproduce. He insisted on his earlier prayer for 6 this court to sustain the raised objection and dismiss the application with cost. Having gone through the submissions for and against from both parties as well as upon my objective perusal of the entire court records I find the crucial issue for determination is whether the raised objection has merits or otherwise. In a judicial review application, the court is called upon to review the lawfulness of a decision made or action done by a public body or other bodies performing public functions (See: the case of Halima James Mdee and 18 others v. the Registered Trustees of CHADEMA and 2 others Misc. Cause No. 27 of 2022. A similar stance was also held in the case of Peter Lutashobya Bandio vs Attorney General (Misc. Civil Cause 40 of 2022) In applications for judicial review the Court is not called to be an appellate authority but rather an authority to verify propriety of the preceding judicial or quasi-judicial proceedings, that is, to review the decision- making process. From the foregoing on the first limb of the objection, the main concern is the non-existence of the impugned decision of the second respondent. My scrutiny of the pleadings and party’s submission it is 7 amply clear that the first respondent was instructed by the second respondent via letter dated 6/11/2023 annexture SHF-7 to order the applicant to demolish all buildings built by bricks in the leased premises. Mr. Kange advocate for the applicant challenged the submission of Mr. Felician Daniel SA for the respondent on a non-existence of the second respondent's decision on the ground that the first respondent was instructed by the second respondent and that, the second respondent is a mover of the decision to order the applicant to demolish the referred buildings. I have asked myself the following does annexture SHF-7 amount to a decision? This question takes me to the meaning of judicial review, as herein above pointed to mean a way through which the courts test the way a decision was made or action taken by a public body or other bodies performing public functions. In other words, it assesses whether the decision was made lawfully, fairly, and within the scope and ambit of the authority granted to the decision-maker. In my view then annexture SHF-7 does not amount to a decision within the meaning of rule 4 of GN No.324 of 2014 but rather information conveyed to the applicant from the second respondent by the first respondent. The court cannot act in vain against a non-existent decision subject to review. This stance was held in the case of F.3329 CPL Buberwa 8 Leonard Magayane and another v. Minister for Home Affairs and 2 others Civil Appeal No. 119 of 2020. In this case, the Court of Appeal held that prima facie case cannot be said to have existed to warrant the grant of leave because the decision which was to be challenged was not availed for the court’s scrutinization. As such the High Court proceedings were quashed and set aside. See also the case of Rehema Ally Kinyaka V Tanzania Institute of Accountancy Misc. Civil Application No. 21 of 2018 where the court held that, since the applicant omitted to annex the decision subject to review, the application was held to be incompetent. Reverting to the second point of objection which is to the effect that the matter is related to the contract, the application is an abuse of the court process, parties are all at once that the application emanates from the lease agreement annexture SHF-3 between the applicant and the first respondent. Hence the second respondent is not privy to the contractual relationship between the first respondent and the applicant. But that does not justify the applicants’ option to lodge this application as rightly argued by Mr. Kange that, they preferred this way because the second respondent is the one who instructed the first respondent to order the applicant to demolish those buildings in the leased premises. 9 I am saying so because as rightly argued by Mr. Felician Daniel SA, close 7.1 of the lease agreement provides for a mode of dispute resolution in case of any dispute between the parties to the agreement. And that the reliefs sought under chamber summons can only be entertained by the court where there is no alternative remedy. Since the matter emanates from the lease agreement a proper cause to take was to sue for breach of contract against the first respondent who is in a contractual relationship with. My findings are guided by a number of decisions including the case of Felix Msele V Minister of Labour and Youth and 3 others [2002] TLR 437. In this case, the 3rd and 4th respondents were deemed not subject to judicial review because their relationship was purely contractual. A similar position was held in the case of Assistant Registrar of Building V Frederick Kibwana [1987] TLR 84 where the court held that; “Certiorari being a discretionary remedy for courts to issue cannot be issued in cases where there is already a contractual relationship between Land Lord and tenant, a relationship of a commercial or business nature. The recourse to the courts of law to 10 adjudicate the breaches of contract would be a better procedure”. For all the above reasons, I find the raised objection sustainable and I do struck out this application for being incompetent before the court with cost. DATED at MWANZA this 15th day of November 2024. W.M. CHUMA JUDGE 11 The ruling delivered in court before Mr. Allen Mbuya State Attorney for the respondents who also held a brief of Mr. Kange advocate for the applicant this 15th day of November 2024. W.M. CHUMA JUDGE 12