ms aquar power t ltd ta turbine tech vs tanzania electric power supply company limited and 2 others 2021 tzhc 5350 5 august 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MAIN REGISTRY) AT DAR-ES-SALAAM MISC.CIVIL CAUSE NO.04 OF 2021 IN THE MATTER OF APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS BETWEEN M/S AQUA POWER (T) LTD t/a Turbine Tech)............................................ APPLICANT VERSUS TANZANIA ELECTRIC POWER SUPPLY COMPANY LIMTED.......................................RESPONDENT THE PUBLIC PROCUREMENT APPELS AUTHORITY--------- NECESSARY PARTY THE ATTORNEY GENERAL—NECESSARY PARTY RULING Date of Last Order: 22/06/2021 Date of Ruling: 15/07/2021 NANGELA, J:., When I sat to hear this application on 22nd June 2021,1 had indicated that I would issue my ruling on 13th of August 2020.1 did so because I Page 1 of 10 had earlier set for other cases which were to proceed for hearing. However, following amicable settlement of some of the cases I had, an ample time was reserved for me to be able to compose this ruling much earlier than anticipated before. I will now proceed to set out the gist of this application for which this ruling relates. It is on record that, on 8th of February 2021, the Applicant herein applied in this Court, and, under a certificate of urgency, for the following orders, that: 1. this Court be pleased to grant the Applicant enlargement of time to file for Leave for Judicial Review; 2. any other and/or further order(s) as may be deemed necessary by the Honorable Court. The Application, which was made under section 14(1) of the Law of Limitation Act, was by way of a Chamber Summons supported by an affidavit of Captain Ibrahimu Mbiu Bendera, the learned counsel for the Applicant. Page 2 of 10 In the application, the Applicant has set out four grounds as the basis of its application. These are as follows, that: 1. The Applicant had timely filed a Misc. Civil Application No.01 of 2021 for leave to file for Judicial Review instead of filing a Misc. Civil Cause; 2. that, the honorable court ordered that the Applicant is at liberty to file a correct application; 3. that, a correct application for leave to file for Judicial Review is supposed to be filed within a limited period of time; it cannot be filed unless enlargement of time is obtained; and 4. the importance of the disputed tender handled by the Public Procurement Appeals Authority to our nation. On 17th March 2021, the Respondents lodged their counter affidavit in opposition to the application and on 4th May 2021, the parties appeared before this Court. Since all pleadings were ready, they prayed for a hearing date, and the matter was fixed for hearing on 22nd June 2021. Page 3 of 10 On the material date of hearing, Capt. Ibrahim Mbiu Bendera, learned advocate represented the Applicant while Mr Masunga Kamihanda, Agnes Sai, and Howa Msefya learned State Attorneys represented the Respondents. In his submission in chief, Capt. Ibrahim Mbiu Bendera requested the Court to adopt the facts adduced in the supporting affidavit of the Applicant and grant the prayers sought in this application. He argued that, when the Court rendered its earlier application on 23rd December 2020, (Misc. Civil Application No.l of 2021), the finding of the Court was to the effect that the application was filed contrary to rule 5 of GN. No. 324 of 2014, (the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014). He further contended that, since the Applicant was out of time in lodging the application, the Applicant has lodged this application which he prayed that it be considered and be granted. Page 4 of 10 On his part, Mr Kamihanda who, together with his colleagues, appeared for the Respondents was of the view that, this application should be dismissed. He argued that, the provisions governing application for leave to apply for Judicial Review is Rule 6 of the GN 324 of 2014. He contended that, the rule provides for six months within which leave may be sought to apply for Judicial Review. According to Mr Kamihanda, the earlier application was struck out on 26th January 2021 while the decision sought to be challenged was issued on 23rd December 2020. In view of those facts, he submitted that, the Applicant could have still filed a fresh application for leave as ordered by the Court without necessarily asking for an extension because the applicant was still within the time allowed by the rule 6 of GN 324 of 2014 to do so, which is 6 months. In view of the above submissions, Mr Kamihanda argued that the current application, which is made under section 14 (1) of the Law of Limitation Act, Cap.89 R.E, is misplaced and Page 5 of 10 unwarranted. He prayed for its dismissal as a proper application ought to have been made under rule 6 of GN No.324 of 2014. In addition to the above submissions, it was Mr Kamihanda's view that section 14 (1) of the Law of Limitation Act is not appropriate provision to invoke even if one was to argue that the Applicant rightly filed the application. He contended that, the respective provision deals with enlargement of time to institute appeals or applications, while nothing was to be enlarged in the context of the current application. For his part, Capt. Bendera rejoined that, according to section 96(1) of the Public Procurement Act, once an appeal is heard by the Public Procurement Appeals Authority, regulation 107 (1) (a) of the Public Procurement Regulations provides for a room of only 14 days within which one is to apply for Judicial Review of the decision to be challenged. He therefore submitted that, application based under the Law of Limitation Act was appropriate in the circumstances. Page 6 of 10 I have carefully and dispassionately considered the rival submissions. Indeed, as correctly argued by the learned State Attorney, Rule 6 of the GN. No 324 of 2014 provides that leave to apply for judicial review shall not be granted unless the application for leave is made within six months after the date of the proceedings, act or omission to which the application for leave relates. In this application for extension of time to file application for leave, it is disclosed in the affidavit in support of the application that, the decision intended to be challenged by way of Judicial Review was issued on 23rd December 2020. On 5th January 2021, the applicant e-filed the Misc. Civil Application No.l of 2021 and on 26th January 2021, this Court struck it it for being incompetent. In his affidavit, Capt. Bendera contended that the time to file the application for leave is now past and, that, the reason for the delay was that the Applicant has been pursuing the matter in Court only to be caught off guard. Page 7 of 10 However, I have noted, that, if one compute the time in light of Rule 6 of the GN No.324 of 2014, it will be obvious that, the door for the Applicant to apply for leave was to file an application for judicial review was to close on 23rd of June 2021, given that the decision sought to be challenged was issued on 23rd December 2020. It follows, therefore, that, up to 23rd June 2021, the Applicant was still within time to file the requisite application for leave as directed by this Court and, this application for extension of time was unnecessary. That being the case, it would mean that, this application is to be struck out. However, before taking such a step, I have asked myself whether striking it out will be in the interest of justice, cost and time conscious, given that the same application will still find its way to this same court. In short, what I mean is that, even if I was to struck out this application for being unnecessarily brought before this Court, by the time I deliver the ruling the Applicant will be Page 8 of 10 already out of time to do that which he could have done in time, had the learned counsel for the applicant properly directed his mind on the provisions of the governing GN No.324 of 2014. In view of the above, I have instead taken it to mean that, the current application though unnecessarily brought at a time when the Applicant could have applied for leave without first seeking extension of time, there is now a need for such extension. In the circumstance, I take it to be, therefore, that the Applicant application for the extension is now merited since it will be impracticable for him to apply for leave within the remaining time. In view of the above reasoning, much as the applicant could have exercised his rights without the current application, there being a necessity for such extended time to apply for leave as time to do so has lapsed, I am of the view that, denying the applicant the prayers sought in this application at such time as this, will not be in the interest of justice, time or cost Page 9 of 10 conscious because he will be made to re-file a similar one in this Court. It is for those reasons that I proceed to hereby grant the Applicant the prayers sought and require the applicant to file the requisite application within twenty one (21) days from the date of this ruling. It is so ordered DATED at DAR-ES-SALAAM, this 15th JULY 2021 Page 10 of 10