MISC

THE UNITED REPUBLIC OF TANZANIA

IN THE HIGH COURT OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 7630 OF 2024 (Arising from the decision of the Public Procurement Appeals Authority dated 16th November 2023 in Appeal No. 19 of 2023-24) _______

IN THE MATTER OF AN APPLICATION FOR PREROGATIVE ORDERS OF

CERTIORARI AND IN THE MATTER OF THE LAW REFORM (FATAL ACCIDENTS MISCELLANEOUS PROVISION) ACT, CAP 310 RE 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 16TH NOVEMBER 2023 IN APPEAL NO. 19 OF 2023-24 BETWEEN THE APPLICANT AND THE 1ST RESPONDENT

BETWEEN M/S Y & P ARCHITECTS (T) LTD…………………………………...APPLICANT

VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LIMITED …….1STRESPONDENT THE PUBLIC PROCUREMENT APPEALS AUTHORITY.….2ND RESPONDENT THE ATTORNEY GENERAL……………………………….…..3RD RESPONDENT 1

RULING Date of last order: 5th June 2024 Date of Ruling: 25th July 2024 MTEMBWA, J.: The facts, as discerned from the pleadings, in September 2022, the 1st Respondent floated a tender under the restricted tendering method specified under the Public Procurement Act and its Regulations. Three bidders participated in the tender including the Applicant. Having evaluated the process and other legal requirements specified in the Public Procurement Act, including review by the Procurement Management Unit as well as approval by the tender board, the Applicant’s tender emerged as the lowest evaluated and was invited for negotiation. Thereafter, there followed three negotiation sessions between the Applicant and the 1st Respondent at the 1st Respondent’s office. The facts reveal further that, while one issue related to the reduction of the scope of work emerged and remained unresolved, all other issues were successfully discussed and deliberated upon and the minutes were accordingly signed to that effect. The Applicant expected that, according to the public procurement laws, immediately after the negotiation process, parties would have signed the contract after fulfilling the prerequisites provided under the law. But that did not happen as expected. The silence 2 by the 1st Respondent was not tolerated at all. On 8th March 2023, the Appellant requested information regarding pending

issues raised during negotiation. That, having observed that three months had lapsed since the parties met, and no feedback from the Respondent, on 29th May 2023, the Applicant sought for Administrative Review of the Respondent’s Accounting Officer. In the Review, the Applicant showed her dissatisfaction with how the remaining part of the Tender process was conducted as well as the length of time taken without communicating the decisions to the Applicant. On 9th June 2023, the 1st Respondent confirmed to have been in the final stage of finalizing its internal formalities. Dissatisfied, the Applicant appealed to the 2nd Respondent on the matter where it was observed that there is no time limit within which negotiation can be carried out. While the Applicant was hoping for a call for a meeting to finalize the agreement, on 25th August 2023, it received a letter from the 1st Respondent rejecting the tender on the assertion of exceptional circumstances which render the performance of the contract impossible. However, the circumstances in question were not stated. The Applicant was not amused at all as a result, on 11th September 2023, the Applicant sought for administrative review of the 1st Respondent’s Accounting Officer 3 challenging the rejection made on account of, among others, not stating the alleged circumstances which necessitated rejection of the tender. Having evaluated

the arguments before it, on 22nd September 2023, the 1st Respondent issued its decision by dismissing the complaint. On appeal, the 2nd Respondent delivered its decision striking out the Applicant’s Appeal for having been filed out of time without first seeking and obtaining leave. Dissatisfied, under the provisions of Section 101 (I) of the Public Procurement Act, Cap 410 RE 2022, sections 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310, RE 2002, and Rules 8(1 )(a), 8(1) (b), 8 (2) of Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Renew Procedure and Fees) Rules, 2014, the Applicant is seeking for an order of certiorari to call for, examine, quash and set aside the decision by the 2nd Respondent in Appeal Case No. 19 of 2023-24 dated 16th November 2023, for being having been reached irrationally and contrary to the spirit of the rules of procedure governing the conduct of proceedings before the Authority. The Respondents resisted the Application. When the matter came for orders on 5th June 2024, the Applicant was represented by Mr. Deogratias Mahinyila, the learned counsel 4 while the Respondents were symbolized by the presence of Ms. Rose Kashamba, the state attorney assisted by Mr. Elias Mkumbo, the learned senior state attorney. By consent, parties agreed to argue this Application by way of written submissions. Having

passed through the records, although it could appear the Respondents faced some difficulties during electronic filing, I am satisfied that parties adhered to the agreed schedule. Staging the floor, having prefaced on what transpired before, Mr. Mtobesya implored this Court to adopt the contents of the Chamber Summons, Statement, and supporting affidavit to form part of the submission. He then cited a Book by Professor l.P Massey titled “Administrative Law”, 7th Edition, Eastern Book Company, 2008. What can be gathered from the quotation is that the procedure of a decision is as important as the decision itself because if the procedure is not fair, the decision cannot be trustworthy. Therefore, Courts have insisted on fair procedural requirements in every administrative action. If a statute lays down any procedure that administrative authority must follow before taking an action, it must be faithfully followed and any violation of it would vitiate an administrative decision. Mr. Mtobesya observed that Professor I. P Massey’s proposition has gained credence in our jurisdiction. He cited the case of James Gwagilo 5 Vs. Attorney General (1994), T.L.R 73 where it was states at page 84 that; illegality (failure to follow the law), procedural impropriety (failure to obsent the principles of natural justice and failure to act with procedural fairness), irrationality (making a decision

which is outrageous in its defiance of logic or of accepted moral standards that no reasonable person who bad applied his mind to it could have made such a decision), proportionality (that the means employed by a decision-maker are no more than is reasonably necessary to achieve his or her legitimate aims). Based on the above, the learned counsel submitted that the procedures laid down by a statute have to be strictly followed by a particular administrative body mandated to give a decision and any deviation therefrom will vitiate the final administrative body’s decision. In the same stance, the learned counsel cited Rule 17(1) of The Public Procurement Appeals Rules, 2014 as amended where it stated that the 2nd Respondent has a mandate to reject an appeal where it is satisfied that any condition regarding the institution of appeal has not been complied with. That sub-rule (2) thereof states further that where an appeal is rejected, the 2nd Respondent shall give reasons for the rejection of such an appeal. It was further submitted that the reason as to why the Rules provide for ‘rejection’ and not ‘dismissal’ is simple; to allow the Appellant whose 6 appeal has been rejected to rectify the deficiencies that caused the rejection and file a fresh appeal if he so wishes. That is why The Rules require the 2nd Respondent to give reasons for rejection. As what amounts to ‘rejection’,

the learned counsel submitted that in the ordinary English language, it means to 'refuse to accept.’ In that regard, the counsel contended that the 2nd Respondent, acting through the provisions of rule 17(1) of the Rules, will be refusing to accept an appeal where it is satisfied that any condition regarding the institution of appeal has not been complied with. And in the end, the said appeal would be returned to the one filing the same with reasons which brought about the said rejection. In his final note on this, Mr. Mtobesya argued that the proper recourse in the circumstances was to reject the appeal and not to dismiss it as the 2nd Respondent did. By dismissing it, therefore, that the 2nd Respondent blatantly strayed into an error. Thus, such an error contravened the established rule of procedure governing administrative bodies that where a statutory procedure has been laid down to be followed by an administrative body, the same has to be followed for any deviation from it vitiates the subsequent decision. Lastly, he beseeched this this Court to find that the 2nd Respondent acted improperly thereby warranting insurance of an order of certiorari. 7 Mr. Mtobesya also submitted on illegality and failure by the 2nd Respondent to exercise jurisdiction. He recited again a Book by Professor l.P Massey (supra) where it was observed that if any administrative authority has been

given power by law, no matter what discretionary authority might be, it must exercise it in one way or another because public power is not a personal power, it is a public trust therefore, must be exercised in the public interest. That failure or denial to exercise jurisdiction will be an illegality. Based on the foregoing Mr. Mtobesya submitted that under rule 17(1) of the Rules, the 2nd Respondent has been given discretionary powers to reject an appeal when it is satisfied that any condition regarding institution of appeal has not been complied with. He considered the powers to be purely discretionary. That the discretionary powers within the import and spirit of rule 24(2) of the Rules, include also excusing a human error where an appeal would have been filed out of time for a lapse of time caused by a human error. The learned counsel faulted the 2nd Respondent for rejecting the Applicant’s prayer of human error. He cited the case of Rashidi Abiki Nguwa Vs. Ramadhani Hassan Kutcys and Another, Civil Application No. 431 of 2021 (Unreported) where the Court applied its mind to the circumstances and concluded that the delay in acting was 8 occasioned by nothing but human error which the Court found it justifiable to condone and allowed the application for extension of time pending before it. On the strength of the submissions advanced above and authorities cited, the learned

counsel for the Applicant implored this Court to allow the Application by quashing and setting aside the decision by the 2nd Respondent in Appeal Case No. 19 of 2023-24 dated 16th November 2023. In response, Ms. Lightness Msuya implored this Court to adopt the contents of the Counter Affidavit. She then proceeded to argue that the matter was dismissed for being time-barred as it was filed out of time. She added further that the negotiation exercises were conducted on different series of dates and while ongoing the applicant unsuccessfully initiated administrative review Prematurely at the time when the 1st Respondent was still finalizing its internal formalities. In addition, she submitted that the tender rejection was done as per guiding laws based on the circumstances that render the performance of the contract impossible and that it is not mandatory that the 2nd Respondent divulge those circumstances that rendered the performance of the contract imposable. To fortify, she cited regulation 16(1) of the Public Procurement Regulations, 2013. 9 The learned state attorney continued to argue that the Applicant during hearing of the appeal in his Appeal conceded in his submission that the appeal was filed two days after the expiry of the prescribed period but human error was pleaded as a defense. On the foregoing, the learned counsel reminded this Court of the cherished principle

of the law that parties are bound by their pleadings. She cited the case of Barclays Bank T. Ltd Vs. Jacob Muro, Civil Appeal 357 of 2019 [2020] TZCA 1875 (26 November 2020). Ms. Msuya insisted that the Applicant filled his Appeal No. 19 of 2023 - 2024 before the 2nd Respondent out of time without even applying for an extension of time to file it out of time. He cited the case of Lyamuya Construction Company Vs. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, (Civil Application 2 of 2010) [2011] TZCA 4 (3 October 2011) where it was observed that it is in the discretion of the Court to grant an extension of time. But that discretion is judicial and so it must be exercised according to the rules of reason and justice and not according to private opinion or arbitrarily. It was argued further that the Applicant’s counsel misdirected the Court by his assertion that the appeal before the 2nd Respondent was dismissed instead of being struck out. She referred this Court to rule 11 of the appeal Rules if read together with item 4 of the second schedule of 10 the Rules. She submitted further that the impugned decision was procedurally proper and was not tainted with Procedural impropriety and illegality for failure to exercise jurisdiction as the Applicant’s counsel tried to put it. On a fair note, she distinguished the cited Book of Professor I.P Massey

(Supra) and the case of James Gwagilo Vs. Attorney General (supra). It was forcefully insisted that the Applicant did not indicate the grounds upon which this Application is based. The learned state attorney also defined “Procedural Impropriety” in view of the Dictionary of Law, Oxford University Press to mean “a failure on the part of a public authority to act in accordance with the requirements of procedural fairness and in compliance with the common- law rules of natural justice”. Based on the definition, the counsel observed that the decision by the 2nd Respondent in Appeal No. 19 of 2023 - 2024 was fairly reached in accordance with the requirements of procedural fairness and in compliance with the common-law rules of natural justice. The learned state attorney conceded to the dictate rule 17(1) of the Public Procurement Appeals Rules, 2014 as amended which gives to the 2nd Respondent mandate on its motion to 'reject an appeal where it is satisfied that any condition regarding institution of appeal has not been complied with’ However, that giving reasons for such recourse is 11 a condition precedent. In this case, she submitted that reason given was very clear, that is because the appeal was filed out of time. Ms. Msuya also sought it wise to define as to what amounts ‘illegality’. On this, she consulted Black’s Law Dictionary, 11th Edition by Bryan A. Garner where it was

defined to mean an act forbidden by the law or the state of not being legal. Based on the definition, she observed that it is not true that the 2nd Respondent failed to exercise its jurisdiction. She insisted that the 2nd Respondent was correct to dismiss the appeal on the preliminary point of law. She cited the case of Mukisa Biscuit Manufacturing Company Ltd V. West End Distributors Ltd (1969) E.A.

696. It was argued further that excusing the Applicant by the principle of human error would be contrary to the import and spirit of the principles laid down in the case of Lyamuya Construction Company (supra) where it was observed that delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. She added that the Applicant had a room to ask for an extension of time to file the appeal out of time but she did not, instead, she pleaded for human error. To fortify, she cited the case of CRDB (1996) Limited Vs. George Kilindu, Civil Application 81 of 2005, [2006] TZCA 76 (10 12 July 2006) where it was stated that sufficient cause may include, among others, bringing the Application promptly, valid explanation for the delay and lack of negligence on the part of the Applicant. As such, that, the Applicant’s negligence in applying for an extension of time cannot be shifted to the 2nd Respondent. She distinguished the cited case of Rashidi Abiki Nguwa Vs. Ramadhani Kassan Kuteys and Another (supra). Lastly, she beseeched this Court to dismiss this Application with costs. I have dispassionately considered the Chamber summons, supporting affidavit, statement and the arguments for and against the Application by the learned counsels. The question before me is whether this Application

is meritorious. Indeed, the law is settled that an application for prerogative orders in the High Court must be preceded by an application for leave which if granted will be followed by the main application for the prerogative orders. Having passed through the records, I am satisfied that leave was accordingly granted to the Applicant. As said before, the Applicant is seeking for an order of certiorari to call for, examine, quash, and set aside the decision by the 2nd Respondent in Appeal Case No. 19 of 2023-24 dated 16th November 2023, for having been reached irrationally. 13 It is on record that on 25th August 2023, the Applicant received a letter from the 1st Respondent rejecting the tender on the assertion of exceptional circumstances which rendered the performance of the contract impossible. On 11th September 2023, the Applicant sought for administrative review of the 1st Respondent’s Accounting Officer challenging the rejection in view of section 97(1) and (2) of the Public Procurement Act, Cap 410 RE 2022. Having evaluated the arguments, on 22nd September 2023, the 1st Respondent issued its decision by dismissing the complaint. Dissatisfied, the Applicant filed an appeal to the 2nd Respondent in terms of rules 9(1) and 10 (1), (2) and (3) of the Public Procurement Appeal Rules, GN No. 411 of 2014. Having scrutinized the records, the 2nd Respondent, among other things not

in my interest, had first to determine the competency of the appeal before it. Having been so prompted, parties were required to address the authority on whether the appeal before it was filed within the prescribed time. The Applicant readily conceded to the very fact that the appeal was time-barred by two days. Mr. Mtobesya considered the two- day delay to be a human error that should be excused. To comment on the obvious, the learned counsel implored the 2nd Respondent to extend time based on human error. On her part, Ms. Msuya did not find the 14 prayer worth purchase. She insisted that the Appeal was filed out of time and no extension of time was so granted by the 2nd Respondent. Having objectively attended the arguments before it, the 2nd Respondent stated and I quote in verbatims; In view of the findings made on the first limb of issue number one that the Appeal has been filed out of time and that the application for extension of time was made in contravention of Rule 11 of the Appeals Rules read together with Item 4 of the Second Schedule to the Appeals Rules, the Appeals Authority hereby dismiss both the Appeal and the subsequent application for extension of time. Since the point of law was raised by the Appeals Authority, we make no order as to costs. It is so ordered. (Emphasis mine) Before I embark into the crux of the matter, I find it opt albeit briefly to

determine if the 2nd Respondent was justified to take such a recourse. It is glaring from the records that in the end, the application for extension of time was dismissed along with the appeal. I asked myself how was that possible. In my conviction, the application for an extension of time could not have been determined along with the appeal which is sought to be filed out of time. The correct procedure was first to let the Applicant withdraw the appeal then proceed to implore the authority to extend the time within which to file the appeal out time. Therefore, an order dismissing or striking out the application would have arisen. The 15 Application for an extension of time cannot be determined while the original appeal sought to be filed out of time is still on record. Mr. Mtobesya’s midpoint is that the 2nd Respondent strayed by dismissing the appeal instead of rejecting it. From what I gathered from his submissions, the specific provision of the law used by the 2nd Respondent did not statutorily warrant dismissal of the appeal where there are inadequacies in the procedure. In fact, the Applicant’s counsel is not in dispute that the appeal was filed out of time only that the proper recourse was to reject and not to dismiss it. To appreciate Mr. Mtobesya’s argument, I feel instructive to look into the nitty gritty of what “rejection” and “dismissal” would entail. According to

Merriam-Webster, “rejection” means to refuse to accept, consider, submit to, take for some purpose, or use; to turn away by not accepting, receiving or considering (see www.merriam- webster.com/dictionary/reject accessed on 22nd July 2024). According to the Britannica dictionary, the word rejection means to refuse to believe, accept, or consider something. Collins Dictionary defines it to mean to reject something such as a proposal, a request, or an offer, you do not accept it or you do not agree to it. The definitions above need no interpolations. Simply, rejection has a meaning corresponding to refusal to accept something. 16 On the other hand, the word “dismissal” has been defined by the Cambridge Dictionary to mean a decision that something or someone is not important and not worth considering. In a legal sense, Black’s Law Dictionary defines it to mean an order or judgement finally disposing of it by sending it out of Court, though without a trial of the issues involved or sending it out of Court without any further consideration or hearing. Simply, dismissal has a meaning corresponding to stopping something forever or without an option to consider it again. As to the legal consequences, both have dissimilar endings. Borrowing a leaf on the legal consequences when a Plaint is rejected, Mulla in his celebrated Book titled “The Code of Civil Procedure” has this to say at

page 451; The rejection of the Plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the Plaintiff from presenting a fresh plaint in respect of the same cause of action. For stance, a suit filed on the same cause of action, subsequent to rejection of the previous suit under r 11 is not liable to be dismissed on ground of being barred by the order rejecting the Plaint in the earlier suit As to the legal consequences of a dismissal order, the defunct East Africa Court in Ngoni Matengo Cooperative Marketing Union Ltd Vs. Alimahomed Osman (1959) EA 577 had this to say at page 580; thus; 17 This court accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to "strike out" the appeal as being incompetent, rather than to have "dismissed" it for the latter phrase implies that a competent appeal has been disposed of, while the former implies there was no proper appeal capable of being disposed of. (Emphasis added) Applying the same principle recently the Court of Appeal of Tanzanian in Bank of Tanzania Vs. Zuhura H. Mbulu (Civil Appeal No. 207 of 2021) [2024] TZCA 545 (11 July 2024) stated that; It is settled principle that an incompetent matter cannot be dismissed. The logic behind is that if the matter is

incompetent, then the court lacks jurisdiction to entertain it on merit; instead, that matter is struck out to give an interested party an option to revert back properly to the same court to pursue the matter in question. As such, striking out the matter does not resolve dispute between the parties; unlike when the matter is dismissed, as in the present, an aggrieved party has no room to go back to the same court that dismissed it to have the matter determined on merits. When the matter is dismissed, it presupposes that the same has been determined on merit. From what I have tried to endeavor herein above, it is evident that there are variances in terms of meaning and legal effect between an order rejecting an appeal and or where the same is dismissed. While the former signifies a refusal to attend it owing to some legal deficiencies and thus 18 incompetent, the latter has a meaning that the same is competent but the prayers sought are worthless owing to the dictate of the particular law, practice and or experience. When the matter is rejected, a litigant has a right to re-arrange and come back on the same cause of action unlike when it is dismissed where he or she is barred from coming back on the same cause of action or point of dissatification. The only remedy available to challenge a dismissal order is through an appeal to the higher Court on the points of

dissatisfaction. As said before, parties are not at issue with regard to the very fact that the appeal was filed out of time. It was thus filed in blatant disregard of rule 9(1) of the Public Procurement Appeal Rules (supra). In view of rules 17 (1) and (2) thereof, the 2nd Respondent may, in her discretion, reject an appeal where she is satisfied that any condition regarding its institution has not been complied with. Where the same is rejected, the 2nd Respondent is mandated to give reasons for the rejection. Guided by the above, the 2nd Respondent dismissed the appeal for the reason that it was filed out of time. For the reasons to be advanced hereinafter, it was wrong and legally unjustifiable to take such a recourse. Having found that an appeal before it was filed out time, the 2nd Respondent lacked jurisdiction to dismiss it. In fact, there was nothing before her warranting a dismisal order. The correct procedure therefore 19 was to reject it under rule 17(1) of the Rules and not to dismiss it. It was therefore wrong for the 2nd Respondent to dismiss an appeal that was filed out of time, and by doing so she exceeded her powers unjustifiably. As said before, rejecting an appeal has a legal effect of allowing the Applicant/Appellant to re-arrange and file before the 2nd Respondent a fresh appeal on the same points of dissatisfaction having satisfied the requirement of rule

11 of the Rules. It was very unfortunate that the 2nd Respondent assumed the powers she does not have by dismissing the Appeal instead of rejecting it to give room to the Applicant to re-arrange and come back on the same points of dissatisfaction if so interested. The dismissal order was issued in blatant contravention of the cited rule above and thus illegal. That said, I am constrained to agree with the Applicant that the decision was reached irrationally in contravention of the principles of the law and procedure as explained above. To that end, the decision by the 2nd Respondent in Appeal Case No. 19 of 2023-24 dated 16th November 2023 is hereby quashed and set aside. The Applicant is at liberty, if still interested, to apply for an extension of time within which to file an Appeal before the 2nd Respondent. There will be no order as costs. It is so ordered. Right of Appeal explained. 20 DATED at DAR ES SALAAM this 26th July 2024. H.S. MTEMBWA

JUDGE 21 22