19870729 TZCA Dar es Salaam

\ ,, ---· IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM - .( CORAM~ MAK.AME 2 J .A. 2 IITSAJ:!Gf'.2 _J .A. AND OMAR 2 J .A•) CIVIL APPEAL NO. 8 OF 1987 HASHIM RUNGWE AND ANOTHER t/a RIDUWE TOURS AND. SAFARJrs. • • • • • APPELLANTS VERSUS THE PRINCIPAL SECRETARY TO THE MINISTRY OF cor-'.i11UNICATION AND WORKS AND ANOTHER.. • • • • • • • • .RESP01'IDENT.S .(Appeal from the ruling and order of the High Court of Tanzania at Dar es Salaam) (J3ahati, J.) dated 23rd January, ,1987 in Misc. Civil Case No. 122 of 1986 JUDGMENT OF THE COUR~ . . K!SANGA 2 J .A.: This appeal arises from the decision of the High Court (Banati, J.) refusing the appellant's application for leave to apply to that Court for orders of mandamus, certiorari and prohibition. The backg.ro:und. to the matter may be stated briefly as follows:-. The Central Ten~er Board. invit~d < tenders from the public for hiring to the Government specified types of motor vehicles for purposes·of transport by Government r iD:b:;istries and departments.;~.-·· In response thereto ' the , . appellants, . a fu-m C)f Tours and Safaris operators, applied for and were- awarded the tender. Pursuant to such award the appellants entered into a written agreement with the Pr:incipal Secretary, Ministry. of Connnunica t ion and Works, commonly known simply a.s COMv✓ORKS, the Pril)oipal Secretary acting on behal! of the Government.c Under clause 9 of the said contract the Government reserved the.right 'ti terminate the agr8ement. ey gi:u:wg one month's notice if the " - 2 services rendered. proved poor, and under clause 1O the parties agteed to submit to arbitration in the event of any disputes a.rising "11d.er the contract. During the continuance of the contract the Principal Secretary COMWORKS, upon givin?: one ::.--nth 1 s notice, terminated the contract on tile grounds of unsatisfactory services rendered by the appellants. A6grieved by such termination, therefore, the appellants sought leeve to apply for remedy as stated above alleging, in effect, thatg- (a) The unilateral termination of the contract by the Principal Secreta.ry was without justification and hence unlawfult (b) The Prinoipe.1 Secretary, contrary to the specific provision in the contract, had refused to suinmit to arbitration despite requests by the appellants to do SOy (o) The Principal Secretary, after the wrongful termination of the contract, fui:ther proceeded to act in a manner that was ultra vires by awarding the tender to some third parties of his own choice and in total disregard. of the recommendation by the Central Tender Board to award the tender to the second. lowest bidder should the appellants fail to proceed with the tender; and ( d) The public hEd an int'.?rest in the matter in as much as the tende~ was floah i t:) the general public so ·~bt C:.c1:-> e:c2c'..'!·;ic:::. t::.::-reof would be a matter of conce.:::-:1 s.;:~d. ir.tcrzst to _.:,hem., ······/3~ -- ·": ,.,,. .,- ' - 3 - In ~onclusion the appellants submitted that the only specific remedy open to them was to apply fori- ( 1) .An orde:.::· c:: .1••... .__ ..__,__~, ·•·· ...... ,_. ·~o compel the Principal Secretary C0MW0RKS and the Central Tender Board to abide by the decision of the Central Tender Board awarding the tender to the appellants; (2) .An order of prohibition to prohibit the Principal Secretary C0NW0RKS or any third pnrties from interfering with the decision of the Central Tender · Board; and An order of prohibition to prohibit generally arry such parties from interfering with the Board in its lawful execution of the tender contract. Acoo.rdingly the appellants so'..'.ght leave to apply to the Court for suoh remedy. The applicat::.on was stro::igly opposed on the .grounds tru,t it was misconc<?i-re:.. I'o:.: ~he respondents it had been contended that the Principal Secretary C0MW0RK.S did not contravene the decision of the Central Tender Board. He acted in accordance with the Board's decision when he ontered. into contract with the a.ppellants, and in terminating the contract he was lawfully exercising the, r~hts ·which h<? had. und.elt' clause 9 of the· contract. It was further contended that if the appellants felt aggrieved. by such termination, it was open to them to seek remedy under the provisions of'· the contract. The respondents vehemently denied the a,llega.tion that they refused to submit to arbitration. and. ·asserted that the appellants had not lodged with them any formal dispute settj,ng out the necessary details :inoludi.Dg the a13..egeq b.re~h and th& ~unt of .cile.iID with a request for arbitration • • • • . . •/ 4. .... After reviewing the relevimt law on the subject 9 the learned judge held ttt:at the appellants had not made out any prima facie caae entitling them to ·1; · : : •0.1'.'2r/~ of the orders prayed for. In ~oming to that view he found that the contract between the appellants •: and the Government was an ordil1.ary private contra.ct which d.id not involve the performance of any public or s'tatutory duty by the Principal Secretary. He went on to .observe that if the appeUanta felt aggrieved. a.t allp they bad their remedy in an et•1on !o:r breaoh of oontreot. Mr. R. Mwojasho who advocated. for the appellants both here and in the High Court, contended that the judge's refusal to grant leave wee premature and hence wrong. He strongly criticised the J.eamed. judge for having considered the issues of non-existence of e.- publ:l.o duty oh the part of the Principal Secretary, COMWORKS and toe ave.ilebility of alternative remedy to the appellants because, he argued, those were matters which went to the merits of the ease and which could l)roperly have been considered only after leave was granted. IndGed ·Mr. Mwejasho appeared to ta.ke the view tha.t at tha.t sta.ge the judge had no discretion in the matter but to g,i:ant leav-e as ..,:..:.ye·:, Witb /·.,e respect to the learned counsel, we cannot agrea. We think thet once the court has disoretion whether or not to grant the order of mandamus itself, that discretion also extends to the question whether or not to grant J.eave to apply for that order. To accede to counsel's submission would amount to saying ihat the judge's function a.t the 'stage of spplioa.tion :for leave is a purely mechanical one. Howove.r, we can :find. no justification for such view. We think that 1.1Pon an e.pplioation· for lea.ve to apply for, a"mandarnus, if it is lll,a1n on the. £aoe -o£ it that mand.arnua would not l,ie for ... ,..·.~ ..,,,/. ~~-.. .... ·~ ·- .. - ,; ~ . ,..,.. .. -,f, - 4- - After reviewing the relevant law on the subject 9 the learned judge held tttat the appellants had not made out any prima facie case entitling them to -:~·:.: z.c-2n'v of the orders prayed for. In fSOming to that view he found that the contract between the appellants •: and the Government was an ordil::iary private contract which d.id not involve the performance of any public or s'tatutory duty by the Principal Secretary. He went on to observe that if the appellenta felt aggrieved. a. t allp they had their remedy in an ii!t41s~on for breaoh of oontra.ot, Mr. R. Mwejasho who ad.vocated. for the appellants both here and in tb.e High Court, contend.ad that the judge's refusa1 to grant leave was premature and hence wrong. He strongly criticised the J.ea.t"ned. judge for having considered the issues of non-existence of a, publ~ d.uty oh the part of the Principal Secreta.ry, COM.WORKS and. the ava.ilebility of alternative remedy to the appellants because, he argued, those were matt,~rs which went to the merits of the ease end which could properly have been considered only after leave was granted. IndGed l.\'lr. Mwajasho appeared to take the view tha.t at tha.t eta.go the judge had no discretion in the matter but to gJ:ant leave as .,_.,:..::.ye·:. Witb ;-'•.,e respect to the lea.rned counsel, we cannot agree. We think that once the court has disoretion whether or not to grant the order of mandamus itself, that discretion also extends to the question whether or not to grant J,eave to apply for that order, To accede to counsel's submiseion would amount to saying that the judge's function at the 'stage of &1pplioa.tion for leave is a purely mecbanica1 one. Howover, we can find. no justification for such view. We think that \1P0n an application· for lea.ve to apply for. a_mandamus, if it i,s pla.;Ln on th.a .£aoe -o! it that mandamus would not lie for . ..,.. . . , .. - 5 - some obvious reason, say, because a.n essential requirement for the grant of the order is lacking, then the court would be perfectly j~tified to refuse the application. :F'or, it would serve no useful purpose to grant the applicGtion for leave to apply for tne order knowing fu.:.::.;r \,-1:.'.Ll that "the o:cd.er itself cannot be granted because of an o~viou.s impediment. Essentially the order of mand.amus is one whereby the High Court - .. d~eots a person, corporation or :inferior tribunal to do a particular thing appertaining to his or their office. J3ut one pre-requisite for the issuing of the order is that the particular thing, the l>~fi'orma.nce of which it is sought to enforce, must be in the nature of a public duty. Addressing himself to this principle, the learned judge took the view that the performance by the Government of the OOlltract in questio~ was not in the nature of a public or statutory dutyv it was :· simply an obligation or duty arising under an ordinary pr1vate contract between the appellants and the Government. We can 1•q find no fault with -:.hot .• J.hcit~ view appc::ars to be re-inforced by the provisions of section 3(1) of the Government Proceedings Act No 1 16 of 19G7 whic:1 8a;y:;:;, "3-( 1) Subject to the provisions of this Act and any other written bw, the Government shall be subject to all those liabilities in contract .............. . to whicl1 it would be subject if it were a private person of full age and capacity and subject as aforesaid any claim arising therefrom may be enforced against the Government in -aocord3ncP. with: tl.i.e prov is ions of this Act. 11 In the context of the present case the sub-section means that when the Government entered into the contract with the appellants, it the;eby assumed righ;ts and. obligations which would ha.ve been assumed by a. private person entering into suo~ contract with the· appellants • • . . . . /6. . ' • - 6 - It is quite clear 9 however 9 that a private person could not have assumed any public duty or obligation W1der tha.t contract. Liltewise the Government could not be said. to have assumed any P'l.lbl.io duty or obligation under the contract. In the absence of tmy publio duty to be enforced, the order of manq.amus could not ieaue and with that knowled.ge it would be pointless 9 indeed rid1o~loue, for the court to grant leave to apply for that order. :But what is even more is this~- Looking at the contract in ~uestion, it is at once apparent that in th12 event of any g:-iijvanoea arising und.er the agreement the most immed.fate and obvi0\18 remedy was for the aggrieved party (the appellants in th~ oaee) to seek to go to arbitration pursuant to clause 10 the~oo£, Indeed the appellants conceded as much but contend.ad that the Principal Secretary COHWORKS had. refused to submit to oxbit~ation, and a. reference wa.s made to Annexture E in an a.tt.empt to substantiate this allegation. However, the contents of tb.e said .Annexture E merely a.mount to e protest by the appellants aga.wt the Government 1 s decision to unilatere1ly determine the oontraot, with a threat to take legal action if within seven days the Government did not reverse i..-;s decision. There is no proposal or suggestion whetsoevor for any reference to arbi:b~e.tion, and this lends credence to th:. onts' · ~ 1im that the a.ppellants have not plaoed before the "'overnment any arbitra.ble issue 01· dispute. It amounts to saying that the appellants have not taken steps to pursue the most obviot'..3 rmd natural remedy i.e. arbitration process, benefj,,oieJ. and e.:fect.-J.Zl_ :),ui~e cl::=ly that is a. circumstance which would. not weigh i:1 ;.:.'-::72.'..:r cf c::-c::1U.ng leave to npply for a mandam\\8, .- - 7 - In the event we uphold. the submission by counsel for the respondents that thio opp~. ic:::t:'..~n was totally misconceived. The oont::actual rala.tions created between the appellants and the Government gove no rise to any publio duty in respect of whioh a.n order of mandamus would be applicable. We think tha.t if the appellants felt aggrieved at all, their obvious end. natural remedy lay in the contr8ct itself by . initiating a.rbitrotior. prooeed.ings or instituting a claim. for brea.oh of contr:rnt. In the event we find no merit in the a.ppea.l woich is accordingly dismissed with costs. 29th day of ju1y, 1987. M. Mli.IC1\J1E ------- Olt., APIBAL P.. H. KISANGA JtJSTICD OF APPEAL A. M.A. OMAR JUSTICE OF APPEAL copy of the original. . , 1/. /1 .vf ·,:._ 1 ( J • H. MSOFFE) DEPUTY REGISTRAR.