legal and human right centre vs minister for finance and planning and others 2021 tzhc 6640 13 october 2021

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISCELLANEOUS CAUSE NO. 11 OF 2021 IN THE MATTER OF APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND PROHIBITION AND IN THE MATTER OF THE NATIONAL PAYMENTS SYSTEM ACT CAP 437 AS AMENDED BY ACT NO 3 OF 2021 AND IN THE MATTER OF THE NATIONAL PAYMENTS SYSTEM (ELECTRONIC MOBILE MONEY TRANSFER AND WITHDRAWAL TRANSCTIONS LEVY) REGULATIONS, GN 496A OF 2021 BETWEEN LEGAL AND HUMAN RIGHTS CENTRE......................... APPLICANT AND THE MINISTER FOR FINANCE AND PLANNING l STRESPONDENT THE MINISTER FOR COMMUNICATION AND INFORMATION TECHNOLOGY......................... .2ndRESPONDENT THE ATTORNEY GENERAL............................... 3rdRESPONDENT RULING 20 Sept & 13 Oct, 2021 MGETTA, 3: This is a ruling in respect of application for leave to apply for judicial review (certiorari and prohibition) filed on 27/7/2021 by Legal and Human Right Centre (henceforth the applicant) through both its legal service and a legal service from Alley and Associates Attorneys. The application was filed by way of chamber summons made under section 2(3) of the Judicature and Application of Laws Act, Cap 358; sections 18(1) and 19(3) of the Law Reform (Fatal Accidents and Miscellaneous Provision) Act, Cap 310; and, Rule 5(1) and (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014. The application is supported by statement and affidavit of Anna Aloys Henga, the Executive Director of the applicant. When the application was called on for hearing, Mr. Mpale Mpoki, Mr. Aman Melkizedeck and Mr. Stephen Mwakibolwa, all the learned advocates appeared for the applicant; while, the respondents namely Minister for Finance and Planning (1st respondent), Minister for Communication and Information Technology (2nd respondent) and the Attorney General, were represented by Mr. Gabriel Malata, the learned Solicitor General assisted by Mr. Erigh Rumisha, the learned State Attorney. First and foremost, I recommend all counsel representing their respective clients for their able and lengthy submissions made before me. Unfortunately, I am very sorry to say that as for the nature of this application, not all what they submitted will feature in this ruling because I am only required to address and determine the main issue of whether to grant or not to grant leave to apply for judicial review. I will not go to merit or demerit of the intended main application for judicial review. Hearing of the application was through oral submission whereby Mr. Mpoki Mpale for the Applicant after being invited to address the court, adopted the affidavit of Ms. Anna Aloys Henga as part of his submission and then elucidated the purpose of application for leave. That firstly it is to filter out applications which are brought in court by busy bodies; and, secondly it is to eliminate at early stage frivolous and vexatious cases. The reasons were derived from the case of Inland Revenue Commissioner and National Federation of Self- Employed and Small Business Ltd [1981J2 All ER pg. 93. He further explicated the standards for application of leave to be granted as set out in the Inland Case (supra) as well as in the case of Emma Bayo Vs Minister for Labour and Youths Development & 2 Another; Civil Appeal No. 79 of 2012, (CA) (Arusha) (unreported) of which are undisputed by the counsel for the respondents and by this court. That is, for an application for leave to file an application for judicial Review to be successful, the applicant must prove before the court the following essential criteria: 1. Whether the application is filed within law prescribed time. 3 2. Whether on facts, the applicant has an arguable or prima facie case to justify the filing o f main application. 3. Whether the applicant has demonstrated sufficient interest to be allowed to bring the main application. As regard to the first criterion, it is undisputed by the Counsel for both parties that the application was brought timely by referring to the affidavit of Ms.Anna Henga as well as the date when the impugned regulation, i.e. the National Payment Systems (Electronic Mobile Money Transfer and Withdrawal Transactions Levy) Regulations, 2021, GN No 496A (henceforth the Regulations 2021) was promulgated. The record shows that Regulations 2021 was promulgated and published on 30/6/2021; while, this application was filed on 27/7/2021. Thus, the application was filed within six months limitation period within which to seek for judicial review as provided for under rule 6 of 2014 Rules which states and I quote that: " 6. The leave to apply for judicial review shall not be granted unless the application for leave is made within six months after the date o f proceedings,\ act or omission to which the application for leave relates" As regard to the second criterion of whether the applicant has presented an arguable case, my only duty, at this preliminary stage, is to determine whether the applicant has established a prima facie case for applying for judicial review. Looking on the pleadings that is to say the application, the affidavit and the statement of facts, I am satisfied that the applicant has presented an arguable case. In the affidavit, the applicant alleges that the Regulations 2021 is ultra vires in substance and in procedure as it is discriminatory and was promulgated without consultation of the two ministries as prescribed by the law. These faults are substantial and need to be ascertained by this court in the main application. The counsel for the respondents depicted that the facts on how the Regulations 2021 is ultra vires to the constitution by being discriminatory and to the Parent Act by being promulgated without following the procedure prescribed by it is wanting. I find that issue of "how" to be a matter to be dealt at length in the main application, if leave is granted. I subscribe to the holding in the case of Njuguna V. Minister for Agriculture [2000] 1 EA 184 where it was stated that: "The test as to whether lea ve should be granted to an applicant for judicial review is whether without examining the matter in any depth there is an arguable case that the reliefs might be granted on the hearing o f the substantive application." That by looking only on the pleadings of the applicant without going into depth, I have been able to say there are matters which need the attention of the court to deal with in the main application. Therefore, a prima facie case has been established by the applicant. On the third criterion of whether the applicant has sufficient interest in the matter to which the intended application relates, Mr Mpoki averred that paragraph 3 of the affidavit shows that the applicant operates mobile telephone numbers, collection number for Tigo, Vodacom and Airtel 275454 and wallet payment number Tigo account 25564000347 which are dully registered with the Tanzania Communication Regulatory Authority (TCRA) in the name of the applicant and the said numbers are used as the mobile wallet for divers uses including money transfers and withdrawal transactions. He therefore verify that the applicant is affected by the Regulation 2021. By such submission of Mr. Mpoki, I am convinced that the applicant has shown sufficient interests in the matter to which the intended main application would relate. In conclusion, a glance at Mr. Malata's submission, I discovered that he intended to drive this court to go into and determine the merits of the main application for judicial review. I insist once again at this stage of 6 seeking for leave or court permission to apply for judicial review, I am afraid, I am not supposed to go there. For reasons given above, the applicant has made his case. I therefore grant leave to the applicant to apply for judicial review within law prescribed period. Each party has to bear its own costs. It is so ordered. Dated at Dar es Salaam this 13th day of October, 2021. COURT: This ruling is delivered today this 13th October, 2021 in the presence of Mr. Stephen Mwakibolwa, the learned advocate for the applicant and in the presence of Mr. Hangi Chang'a, the learned Principal State Attorney for the respondents. J.S. MGETTA JUDGE 13/10 /2021