ms yono auction mart co ltd vs tanzania revenue authority others 2019 tzhc 262 4 december 2019

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM MAIN REGISTRY) AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 10 OF 2019 BETWEEN M/S YONO AUCTION MART AND COMPANY LIMITED.........................................................APPLICANT AND TANZANIA REVENUE AUTHORITY.......................... 1st RESPONDENT THE ATTORNEY GENERAL...................................... 2nd RESPONDENT PUBLIC PROCUREMENT APPEALS AUTHORITY............................................................ 3rd RESPONDENT RULING Date of last Order: 30/10/2019 Date of Ruling: 04/12/2019 MLYAMBINA, J. By way of chamber summons, made under Section 17 (2) o f the Law Reform (Fatal Accidents And M iscellaneous Provisions) Act, Cap 310 (R .E 2002), Rule 5 (1) and 8 (1) (a) and (b) 92) and (3) o f the Law Reform (Fatal Accidents And M iscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, G. N. No. 324 o f 5th Septem ber 2014 and Section 101 (1)f (2) (a) o f the Public Procurem ent Act, Cap 410, the applicant prayed for the following orders: a) That, the honorable court be pleased to grant an order for certiorari and mandamus against the decision made by The Public Procurement Appeals Authority in favour of The Tanzania Revenue Authority dated 3rdApril, 2019 by M/S Yono Auction Mart and Co. Ltd. b) Any other order(s) the court may deem fit and just to grant. In reply, the respondent has raised two plea in lim ine litis, namely: 1. That, this application is untenable fo r the court has not been properly moved. 2. That, this application is incom petent fo r want o f a decision to be reviewed. The piea in lim ine litis above were argued by way of written submissions. It is unfortunate the applicant, for reasons known to it, never filed a reply. Hence the preliminary objection was heard ex-parte as the practice of filling submissions is tantamount to a hearing (see Fredrick A. M. Mutafurwa v. CRDB 1996 Ltd and Others High Court o f Tanzania Land Case No. 146/2004 (unreported). On the first limb of objection, the respondent submitted that the high court has exclusive jurisdiction to hear and determine judicial review proceedings in terms of Section 2 (3) o f the Judicature and Application o f Laws Act, Cap 358’ only for the reason that, there is no statute which has vested jurisdiction upon the High Court to hear and determine judicial review proceedings. Section 17 (2) o f The Law Reform (Fatal Accidents and M iscellaneous Provision) A ct Cap 310 (R. E 2002), unless read together with Section 2 (3) o f The Judicature and Application o f Laws Act, cannot confer jurisdiction upon the high court to hear and determine application for orders of prerogative writs. To buttress the averment, the respondent cited the case of A lfred Lakaru v. Town D irector (Arusha) (1980) TLR 326 where my Brethren Maganga J (as he then was), observed that: "The ju risd iction o f the high court to make orders o f mandamus or other prerogative w rits is given by Section 2 (2) o f the Judicature and Application o f Laws Ordinance Cap 453." In view of the foregoing, it was the respondent position that failure to cite the provision of Cap 358 (supra) renders the application incompetent. I have labored into the respondent's submission and I do agree with the position of law as propounded in Alfred Lakaru case {supra). However, this court in the case of alliance one Tabacco Tanzania ltd H am isi shoni v. Mwajuma H am isi (as the admistratrix of the estate of Philem oni R. Kilenyi and Heritage Insurance Co (T) Ltd, Misc. Civil Application No. 803 of 2018, borrowed the imports of Rule 9 of the Court of Appeal Rules G.N No. 345 of 2019 which amends Rule 48 of the Court of Appeal Rules of 2009. The said amendment reads: "provided that where an application om its to cite any specific provision o f the law o r cites a wrong provision ; but the ju risd iction to grant the order sought exists, the irregularity or om ission can be ignored and the court m ay order that the correct law be inserted." Being guided with the afore current position of the law, I find the omission by the applicant to cite Section 2 (2) of JALA can be rectified by ordering the applicant to insert the same in the application so that the merits of the case can be determined. The second limb of objection have merits. As argued by the respondents, the applicant did not attach the decision of the authority, which this honorable court is being moved to review contrary to Rule 11 o f the Law Reform (Fatal Accident and M iscellaneous Provisions (Judicial Review Procedure and Fees) Rules, 2014f G. N. No. 324. It is true, as submitted by the respondent, the applicant has no room to tender any documentary evidence during hearing of this application except those attached to the affidavit which is a substitute of oral evidence. In the cited case of Bruno Wences/aus N yalifa v. the Perm anent Secretary M inistry o f Home A ffairs, Civil Appeal No. 82 of 2017 (unreported) it was held: "Affidavit is evidence and annexture thereto is intended to substantiate the allegations made in the affid avit Unless it is controverted thereof, the docum ent can be relied upon to establish a particular fa c t" In the premises of the above, I find this application is incompetent before the court for failure to attach the impugned decision of The Public Procurement Appeal Authority which is the subject of this application for review. I therefore proceed to struck out this application with costs for being incompetent before the court. Order accordingly. 04/ 12/2019 Ruling dated and delivered this 4th day of December, 2019 in the absence of the applicant and in the presence of Masunga Kamihanda State Attorney for respondents.