AGRICO RULLING

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY)

AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE NO. 4187 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 PROVISIONS) ACT, CAP 310 [R.E 2019] AND IN THE MATTER OF THE PUBLIC PROCUREMENT ACT, CAP 410 R.E 2022)

AND

IN THE MATTER OF AN APPLICATION TO CHALLENGE THE DECISION OF THE PUBLIC PROCUREMENT APPEALS AUTHORITY, DATED 13TH FEBRUARY 2024, IN APPEAL NO 28 OF 2023-24, BETWEEN THE APPLICANT AND 1ST RESPONDENT HEREIN RESPECTIVELY.

BETWEEN M/S MODERN AGRICO LIMITED………………………………..……..APPLICANT AND TANZANIA RURAL AND URBAN ROAD AGENCY………..…. 1ST RESPONDENT THE PUBLIC PROCUREMENT APPEALS AUTHORITY……….2ND RESPONDENT THE ATTORNEY GENERAL…………………………………..…3RD RESPONDENT

RULING 10th &27th February, 2025 MWANGA, J. 1 Pursuant to Section 110(1) of the Public Procurement Act, Cap 410 [R.E 2022], Section 18 (1) and 19 (3) of Law Reform ( Fatal Accident & Miscellaneous Provision) Act [Cap 310 R.E 2002] and Rules 5(1), 5(2)(a), 5(2) (b), d5(2) (c) and 5 (2) (d) of the Law Reform ( Fatal accidents and Miscellaneous Provisions) Judicial Review Procedure and Fees) Rules, 2014, the applicant is in this court seeking leave to file an order of certiorari to call for, examine, and set aside the decision by the second respondent in appeal case No.28 of 32023-24, dated 13th November 2023, for having deprived the applicant of the right to be heard and reached an irrational decision contrary to the spirit of the rules of procedure governing the conduct of the proceedings before the Authority. Other prayers are for the costs of the application and any other order or orders that this court deems fit to grant. The application was brought through chamber summons, supported by the applicant's statement and an affidavit. In contrast, the respondent filed a reply to the statement and counter affidavit. When the matter came for hearing on 10/02/2025, the court suo motu raised the issue and ordered the parties to address it regarding the requirement for attachment of the decision so challenged. Thus, the parties adhered to the court's order and filed their submissions.

Fransico 2 Bantu prepared the applicant’s submissions, while Francis Wisdom prepared the respondent's. Submitting on the point raised suo moto, the applicant contended that, since the applicants were not properly summoned to appear before the Tribunal, they were not aware of the proceedings and could not apprehend what transpired. He argued that the applicant is not served with any copy of the tribunal decisions except for the notice appended in this application. He implored the court to take judicial notice under Section 59(1) (a) of the Evidence Act [CAP 6 R.E 2019] under the auspice of ‘notices having noticed the force of law.’ He was of the view that the fact that there is a document titled “order of PPAA on appeal Case No. 28 of 2023- 2024 between M/S Modern Agrico Ltd against Public Procurement Regulatory Authority and Tanzania Rural Urban Roads”, the contents of such notice contained therein have a force of law as they state the summary of what transpired in the Tribunal. In the instant application, the applicant is barred from setting aside ex-parte ruling under Rule 21 (2) of the Public Procurement Rules, 2014, as there is no extrajudicial machinery to be exhausted before the recourse of judicial review for an applicant dissatisfied with the decision of the Public Procurement Appeal’s Authority decided exparte, the only remedy is to file for judicial review. 3 Mr.

Bantu submitted further that, since the Respondents have not denied the decision from the Tribunal, he prayed judicial notice to be taken for the existence of the decision. Added that, since the decision from the Public Procurement Regulatory Authority (PPRA) is attached, which is the one that debarred the applicant, and the missing decision is that of the Public Procurement Appeals Authority (PPAA), which did not decide on the root of the matter but rather confirming the debarment decision by the Public Procurement Regulatory Authority, he asked this court as a matter of justice to grant the applicant leave to file or in alternative to allow the applicant to file notice to produce, since the party who deliberated such decision is a party to this application. In winding up, he submitted that the applicant has pointed out arguable points in the statement and affidavit, and the court is implored to be flexible considering the disclosure of matters that might, on further consideration, demonstrate a case for the grant of the reliefs claimed. In rebuttal, Mr. Wisdom submitted that this is an application for leave to file an order of certiorari to call for, examine, quash, and set aside the decision by the Public Procurement Appeals Authority (PPRA) and the Public Procurement Appeals Authority (PPAA) case reference EA.8 /59/18/A/4 dated 14th December 2023 and in Appeal Case No. 28

of 4 2023-4 dated 13th November 2023, respectively, of having denied the Applicant the right to be heard and reached an irrational decision and contrary to the spirit of the rules of procedure governing the conduct of proceedings before the Authority. He elaborated further that the Application is supported by an Affidavit of HAMAD SUMRY, which from the outset does not state any facts concerning the 3rd Respondent, who is the final authority in Procurement matters. He contended that, in an application for leave to file a Judicial Review, there are guiding principles settled by the Court of Appeal, which must be observed by the High Court when determining whether or not to grant leave. He said the position of the law regarding the necessity of having a decision is explained in the case of Emma Bayo Vs. The Minister for Labour and Youths Development and two others, Civil Appeal No. 79 of 2012 CAT at page 8 These requirements were echoed in the case of F. 3329 CPL Buberwa Leonard Magayane and Another Versus the Minister for Home Affairs and two others, Civil Appeal No.119 of 2020 CAT at Mwanza. He went on to submit that the Applicant’s Amended application is accompanied by an Affidavit having paragraphs which do not have fact or averment regarding any letter from the 3rd Respondent (The Public 5 Procurement Appeals Authority); however, there is an annexure G attached to the

Affidavit which is a letter informing the Applicant that the order in respect of appeal preferred by the Appellant before the 3rd Respondent was dismissed for non-appearance of the Applicant. The letter goes further to state that the copy of the order is herewith appended. However, no order is appended. He argued that it is clear that Annexure G is not part of the Applicant’s Affidavit as nothing has been pleaded in the Affidavit regarding such a letter; it is, therefore, wrong to be recognized. He said he is mindful of the fact that on page 9 of the online ruling dated 03 December 2024 by Hon. Judge Dynsobera, “The question whether or not it has the prerequisite conditions for seeking leave for Judicial Review has to be determined in the substantive adjudication while hearing the application for leave and not at this preliminary hearing stage” however, even though Hon Dyansobera J acknowledged the fact that the Applicant has particularized the decision with a fair degree of details. Yet, he had left the issue on whether the applicant’s application has or has not met the preconditions for seeking leave for Judicial Review for determination at this stage of hearing the substantive Application for Leave. He invited the court to find that annexure G, which has not been pleaded anywhere in the Applicant’s Affidavit, is not part of the Affidavit; 6 more so, it does not show how the

proceedings were conducted so that the Court could review the same to see if there was any violation thereof hence a prima facie case has not been established to warrant the Applicant to get leave to file the Main Application for prerogative orders. He submitted that it is an established principle of law that parties and the court are bound by pleadings as held by many authorities. To support his position, he cited to the court the case of Lupiana Michael Lupiana (The administrator of the Estate of the Late Michael S. Lupiana) Vs. Mkombozi Commercial Bank and two others, Civil Appeal No.207 of 2003 at page 19, Where it was held that, “It is trite law that parties are bound by their own pleadings equally. It is also settled that the court will not grant a remedy that has not been applied for and will not determine issues that the parties have not pleaded”. In winding up, he submitted that the Applicant had not pleaded the decision of the third Respondent; therefore, the Court should not assume the same is pleaded but should decide this Application based on what is found in the pleaded facts. It was his prayer that the application be dismissed with costs. 7 I have keenly considered the rival submission by the parties concerning the issue raised by the court suomotu. I have no query about the applicant’s allegation that he was not summoned to appear before the third respondent’s

authority, as he could not comprehend what transpired in the said proceeding. The only issue is whether it is not mandatory or not to attach the decision sought to be reviewed at this leave stage. By not attaching the impugned decision, the applicant’s application has met the preconditions for seeking leave for Judicial Review. Undoubtedly, the rationale behind the requirement for leave is to filter out applications that are groundless or hopeless at an early stage, to prevent the time of the court from being wasted by busybodies with misguided or trivial complaints of administrative errors, to remove uncertainty in which public authorities may be left with such frivolous or groundless judicial review actions. The same principle was explained in the case of Emma Bayo vs The Minister for Labour and Youths Development and two others ( supra), where it was stated as follows: "It is at the stage of leave where the High Court satisfies itself that the applicant for leave has made out any arguable case to justify the filing of the main application. At the stage of leave, the High Court is also required to consider whether the 8 applicant is within the six-month limitation period to seek a judicial review of the decision of a tribunal subordinate to the High Court. A t the leave stage is where the applicant shows that he or she has sufficient interest to be allowed to bring the main

application. We cannot but emphasize our restatement of the law in Attorney General vs. Wilfred Onyango Mganyi @ Dadi & 11 Others (supra) to the effect that an "application for leave is a necessary step to an application for the orders. The purpose for this "step" is to give the court an indication that an applicant has "sufficient interest in applying for the orders". Moreover, six conditions must be considered before granting leave to file judicial review: (1) There must be a prima facie or arguable case; 2. The applicant has sufficient interest in the matter; 3. The matter must have been brought within the time limit of six months.

4. There must be a decision made by a public body; 4. There must be exhaustion of remedies; 6. That the Application must be made in (good faith; see the case of Nandhra Engineering and Another vs. The Minister of 9 Constitution and Legal Affairs and Another, Misc. Civil Cause No. 8968 of 2024 [2024] TZHC 5894. In this application, as explained above, the impugned decision was not attached; thus, the 4th condition is not met. Further, without that decision attached, it is difficult for the court to determine whether the applicant has an arguable case/preface case or not. The arguments by counsel for the applicant that the applicant was not served and, thus, does not know what transpired in the proceedings is just a flimsy excuse because the record is barren as to whether the applicant made any follow- up to the third defendant seeking to be supplied with the said decision. Given that position, I am inclined to say that the applicant’s application did not meet the prerequisite conditions for a leave application. In the event the application is struck out. Each party is to bear its costs. It is so ordered accordingly. H.R. MWANGA J

JUDGE 27/02/2025 10 COURT: The ruling was delivered at Dar es Salaam on the 27th day of February 2025 in the presence of Fransico Bantu, Adv for the applicant, and Ms. Ditrick Luambano, SA, for the respondent. H.R.MWANGA

JUDGE 27/02/2025 11