ms panone and company limited vs same district council and 2 others 2021 tzhc 7580 2 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE MOSHI DISTRICT REGISTRY

AT MOSHI MISCELLANEOUS CAUSE NO. 2 OF 2021

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR ORDERS OF CERTIORARI, PROHIBITION AND MANDAMUS

IN THE MATTER OF THE DECISION OF PUBLIC PROCUREMENT APPEALS AUTHORITY, APPEAL NO. 19 OF 2020-21 DATED 26™ DAY OF FEBRUARY, 2021.

BETWEEN M/S PANONE AND COMPANY LIMITED.......................APPLICANT

VERSUS SAME DISTRICT COUNCIL.................................. 1st RESPONDENT PUBLIC PROCUREMENT APPEALS AUTHORI........ 2nd RESPONDENT HON. ATTORNEY GENERAL................................ 3rd RESPONDENT

RULING 30/8/2021, 2/11/2021 MWENEMPAZI, J. The applicant has made an application for leave to apply for orders of Certiorari, Prohibition and mandamus together with any other relief that this Honourable court may be pleased and deem fit to grant. The application is i made under the provisions of section 17, 18(1) and 19 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310 R. E, 2002, Rule 5 and Rule 6 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 and section 101(1) of the Public Procurement Act, 2011, G. N. No. 52 of Vol. 92 dated 30th December, 2011. This application is also supported by the statement and affidavit sworn by Patrick Ngiloi Ulomi. In the affidavit, it is deponed that the 1st Respondent advertised tender No. LGA/049/NC/2020/2021/10 by tender advertisement dated 24th November, 2020 to rent and operate a petrol station PADECO located at the bus stand, Same Town. The applicant herein obtained tender documents which contained tender criteria and submitted her tender documents as required by the advertisement. Upon tender evaluation according to the required process, the 1st Respondent wrote a letter on the 31st December, 2020 to the applicant that she was unsuccessful in Tender No. LGA/049/NC/2020/2021/10. That letter was communicated to the applicant on the 2nd day of

January, 2021. In the letter, it was stated that the decision was based on the reason that the applicant owed the 1st respondent rent for six months as for hiring the said Petrol Station, which reason according to the deponent is contrary to the criteria advanced in tender document as was annexed and are part of the affidavit Annexure PAR-1. Hence the application is sought to challenge the decision. According to Rule 5(1) and (2) The Law (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014[G.N. No. 324 of 2014]it is provided, I quote: 2 "5 (1). An application for judicial review shall not be made unless a leave to file such application has been granted by the court in accordance with these Rules. (2) An application for leave under sub-rule (1) shall be made ex parte to a judge in chambers and be accompanied by- fa). a statement providing for the name and description o f the applicant; (b). the reliefsought. (c). the grounds on which the relief is sought; and (d) affidavit verifying the facts relied on. Thus, the application is necessary as the grant of leave to file an application for prerogative orders is a condition precedent. Generally, an application for leave to apply for prerogative orders is preferable ex-parte. In this case, however, the respondent was served with the application and they are opposing the application. Through

the office of the Solicitor General, they have filed a statement in reply and a counter affidavit which have been made and sworn respectively by Upendo Kivuyo. At the hearing, parties were being represented by their respective counsels. The applicant was being represented by Mr. Engelbert Boniphace, learned advocate and the Respondents were being represented by the Kilimanjaro Regional office of the Solicitor General, being manned by Mr. Yohana Marco, learned state Attorney. The counsel for the applicant after reiterating the position narrated by virtue of an affidavit, which he prayed it be adopted as part of the submission, has submitted that the applicant has an arguable case and has not brought the application on frivolous and or vexatious reasons. The counsel for the applicant has referred this court to the affidavit and the annexed documents. He has also cited the case of R.V.T.R.C EXP. NATIONAL FEDERATION OF SELF EMPLOYED AND SMALL BUSINESS LTD [1982] A.C. 617 at Pg. 643 Lord Diplock observed that: "The requirement o f permission is designed to filter out applications which are groundless or hopeless at an early stage. The purpose is to prevent the time o f the court being wasted by busy bodies with misguided or trivial complaints of administrative error and to remove the uncertainty in which public.... authorities might be left..." The counsel submitted further that the

complaints of irregularities, unreasonableness and irrationality as grounds in the statement are enshrined in their roots from the absence of copies of a letter of the accounting officer to the tender board instructing the tender board to violate terms and conditions of the tender document, more so the 2nd respondent's decision taking into consideration the amount tendered in the second advertised tender by the winner of the second tender and used the same as ground for the 2nd respondent's decision. The reasoning which was used by the 2nd respondent in reaching its decision is the one in contravention and making the applicant aggrieved. The record shows the re-advertised tender documents as well never contained a clause restricting the applicant or any applicant that to have a debt with the 1st respondent is a disqualification to be declared as a successful applicant. Had it been there was no 2nd advertised tender by the 1st respondent then 2nd respondent would have declared the applicant via the first advertisement as a successful applicant. Thus, the 2nd respondent's decision was secured out of irregularities. Thus, it is regarded an error of the law. In this regard, the counsel has cited the case of Republic versus Industrial Injustice commissioner Ex-parte ward f19651 WLR 21 In the submission, the counsel for the applicant has submitted that the applicant has shown that

there is a question of justice to be determined if leave to file an application for prerogative orders will be granted. There are important factors to allow the application. One, there is an arguable case. Two, the applicant herein is the only one who suffers the result of the 1st respondent's and 2nd respondent's illegal actions and he is the one having much interest to this matter as compared to the 1st and 2nd respondent. Three, it is undisputed that the applicant has acted promptly as the matter was filed within time, for the argument he has cited the case of Alfred Lakarau Versus Town Director, [1980] T.L.R. 326 and that as the decision of the 2nd respondent if final, there is no other alternative remedy for the applicant to pursue her justice. Hence the only option is to apply for prerogative orders of mandamus, certiorari and prohibition. The applicant prays for the application to be granted. The respondent's counsel has also filed a submission in reply to the submission in chief by the counsel for the applicant. Generally, so to speak, the respondents through their counsel, Mr. Yohana Marco, learned state Attorney, have an opinion that the counsel for the applicant has made prayers in the affidavit and thus has contravened the law on affidavit. He 5 has also a view that the applicant has not made out an arguable case fit enough to obtain leave to apply for judicial

review. Since the applicant is aggrieved with the decision of the 2nd Respondent, it was imperative to show the court through its affidavit how the arguable case exists on face of the record without delving into the merits thereof. If the applicant were to protest the 1st Respondent's decision whose transaction takes lead in the content of the Applicant's affidavit, then one could be convinced that there exists arguable case. However, the 1st Respondent's decision was quashed by the 2nd Respondent's decision on the illegalities demonstrated in the Applicant's affidavit and the Applicant is apparently not contesting this. Now the question that is to be answered is what is wrong with the 2nd Respondent's decision? The answer has not been provided for in the Applicant's affidavit. The counsel however has agreed to the principles and of factors which must feature out as conditions for granting the application. The said factors are shown in paragraph 4 of the submission to be as follows: that the applicant must demonstrate that there is an arguable case, the applicant has sufficient interest, the applicant has acted promptly (the applicant must file the application within six months period) and that there is no alternative remedy. There have been expounded in the cases cited by the counsel Pavisa Enterprises vs. The Minister for Labour. Youths. Dev. & Shorts and the Attorney,

General, Miscellaneous Civil Cause No. 65 o f 2003, High Court of Dar es salaam at Dar es salaam(unreported) and Emma. Bavo vs. Minister for. Labour, and. Youth DevelgBment and, others, Civil Appeal No. 77 o f 2012, Court o f Appeal o f Tanzania at Arusha. The 6 above criteria are cumulative in application in that, if one is not met then the rest are rendered incompetent to successfully get the Applicant through his quest for leave. It is the opinion of the counsel for the Respondents that the facts at hand do not show, if leave is granted, the orders of certiorari, prohibition and mandamus shall be levelled against which decision. In rejoinder, the counsel for the applicant has argued that the counsel for the respondent has raised an objection and argued the same in the submission that the counsel for the applicant has included prayers in the affidavit and went on to cite the case of Gervas. Masome Kuiwa versus The Returning. Officer, and, others [1996] TLR 32. He has argued that it is not a procedure. In my view, although counsels in the submission embarked into other issues not the concern of the court at this level. They have exchanged contending views which I think they should have delt with them at another forum. Without looking down on the points, I have the opinion that the most important issue for now is whether leave to apply for prerogative orders should be granted

or not. All along the reading of the case, I believed that the decision being challenged is the decision which pronounced that the applicant's bidding in a tender advertised by the 1st applicant was unsuccessful. The point raised by counsel for the Respondent though may have a valid element but is not exhaustive given the nature of the case and circumstances of the case at hand. The context of the case shows the issue is denial to operate the business which has been made not in a straight manner. The applicant wants to challenge it. Since the 1st and 2nd respondent are in this case, it would seem the applicant referred to the decision of the 2nd respondent. I refrain myself from going deeper to see the merit of the argument. The important point is that the decision made, announcing that the applicant has not been successful in the tender she bid was made by the 1st applicant and it has flaws according to the applicant. He appealed to the 2nd respondent who has confirmed. However, the 2nd respondent could not rectify the flaws. The applicant is not satisfied with the latter decision as well. In the application the applicant has not been specific enough as to which decision she is challenging or maybe there were typographic errors. Lack of specific reference to the deciding authority has attracted the argument by the respondent's counsel. However, substantive justice would

demand rectification to be made upon consideration of the applicant's arguments in detail. The court will have chance to see the merit at the substantive hearing. At the stage of applying for the leave to apply for prerogative orders the most important question is whether prima facie case has been established. In this case, the facts deponed in the affidavit show clearly there are points for consideration by the court in case leave is granted in regard to the decision on tender evaluation by the 1st respondent. I believe, if we sieve away other arguments advanced by the parties, no doubt the decision made need more clarification upon hearing. Since the application has been made in time, within six months from the date of the decision, the applicant has sufficient interest as he made an application for tender and a decision has 8 been made which he believes it was against justice and there is no alternative remedy I believe a prima facie case has been made. Under the circumstances leave to apply for prerogatives orders of certiorari, prohibition and mandamus is hereby granted with costs. Dated and delivered at Moshi on the 2nd day of November, 2021

JUDGE Ruling delivered this 2nd day of November, 2021 in court in the presence of the Mr. Englebert Boniphace, Advocate for the applicant and Mr. Yohana Marco, State Attorney advocate for the respondents. T. M. MWENEMPAZI

JUDGE 9