pumziko philemonmlelwa 162 others vs the regional commissioner for ruvuma the attorney general 2023 tzhc 22250 1 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ATSONGEA MISC. CIVIL APPLICATION NO. 11 OF 2023 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS BETWEEN 1. PUMZIKO PHILEMON MLELWA 2. HASSAN SAID 3. BAKARI A MUSSA 4. SAIDI JOBE 5. HAMIDUJUMA 6. ADAM MUSTAPHA 7. SHABAN GAWAZA 8. CHARLES SWILA 9. MUSSA HASHIM 10. BASILIUS MAPUNDA 11. SHANI H MAPUNDA 12. JAMES B MBAWALA 13. HAKIA P KAHABI APPLICANTS 14. MICHAELY B MTITU 15. IDDI P MWASHILIMBE 16. BRASIUS BWABENA 17. SADRO MFYAGISI 18. BENAE ZWOGA 19. WINFRID C MLOWE 20. I EMACULATA LWAYO 21. MUHIBU R MUYA 22. AZADI MOYO 23. TWAIBU KOMBA 24. INNOCENT NJAU 25. CHRISPIN KOLUBA 26. MICHAEL MAPUNDA 27. SAMWEL M MWINUKA 28. FRANCE NGONYAJI 29. GRACE MSHANA 30. KALISTA MAPUNDA 31. REHEMEA MHAGAMA 32. IZACK ILOMO 33. AYUBU MGAYA 34. STEVEN NDOMBA 35. JESCA KOMBA 36. JACKSON PONERA 37. MICHAEL KAYOMBO 38. MARRY NOMBO APPLICANTS 39. MUSA AMIDU 40. MICKNDIMBO 41. VERA MOYO 42. KASTORY MBEMBATI 43. GODWIN J KOMBA 44. NIKOLAUS MGENI 45. MSAFIRI THOBIAS 46. DICKSON CHIPETA 47. GEOFREY MBISE 48. JUMA MOHAMED 49. ATHUMAN CHEYO 50. SALUMU ISSA 51. BRASIUS MLOWE 52. DOMINICK A MOYO 53. BERMA JUMA 54. DAVID MVULA 55. AHMAD DADI 56. MASHAKA MPUTA 57. ATHMANI LIPOMBA 58. ABDILLAH ABDALLAH 59. BOAZMSIGWA 60. AHMAD M SIGWA 61. BAKARI HASSAN MAHEKA 62. RASHID K MFAUME 63. SHAFII NGOLYACHI 64. ELIAS FOBA 65. GEORGE NGONYANI 66. RAJABU RASHID 67. RASHIDI D YASSIN 68. SANGAMTOTO APPLICANTS 69. JAMES MAKUMBULI 70. HENRY MAKUMBULI 71. DOMINICK ALEX 72. TWALIBU T LUANDA 73. IMAMU NCHIMBI 74. GEQFERY T MAPUNDA 75. HAWA C KAFUKO 76. JUMA R PASSI 77. MIRAJIHEBILLA 78^ i DUA SHASHABANl MAKAU 79. HASSAN ZUBERl 80. SAIDIAMIRI 81. ABDALAKASIMU 82. JUMAJMTISHl 83. HASSANl NAMALECHE 84. HASSANl HURUKU 85. MOHAMED MNALI 86. PAULO E KOMBA 87. AFIDU R NGONYANI 88. LEORNARD G KIHIYO 89. STEPHENTONYA 90. HAMISSI R MWALIMU 91. SELEMANl NAMBILE 92. MAOUDALLY 93. HAMISIFUNDI 94. HASANISALUMU 95. JOSEPH XAVERY LUENA 96. RAMADHANIHARID 97. MAGRETNDAUKA APPLICANTS 98. GOTFRID KOMBA 99. FADHILIIMANI 100. ELSAMO NJOVU 101. HASSAN NASSORO 102. MKWAWAMKWAWA 1031 ABDALLAH NGATUNGA 104. GEOFREY H NJELEKA 105. HORACE G MKINGA 106. MOHAMED FURAHA 107. GRACE S NCHIMBIRA 108. SAID SAID ALLY 109. FLORIAN TEMBO 110. ISACK ALEX MOYO 111. HENULICK KINYUNYU 112. JACKSON SWALO 113. ALLY NZOMBI 114. ERASO DAMIAN 115. SHEDRACK CHAULA 116. HAJI HASSANI LICHOLONJO 117. GEORGE S STANLEY 118. ERICK LUENA 119. AMANITHABITI 120. SALUM Y NIHUKA 121. FRANCIS A MBAWALA 122. HAMAD R NGALIPA 123. MICHAEL A KOMBA 124. STEPHEN M MWILAPWA 125. SALUM AMAN 126. GODI NJOVU 127. JAMES B OLOMY 128. SUGWA M KELUKILWA 129. ALLY I MOHAMED 130. ALLY MOHAMED LIVETA 131. HALIMA A PILLY 132. RASHID KALIMBA 133. OSWARD ZAPARANI 134. SAIDI YASINI MATOLA 135. IZACK MNARI 136. HAMRUNI KWEMEYE 137. i JENIPHERI LWIVA 138. ROSEMARY SMMEHWA 139. HAMISI S LALl 140. RASHID HABIBU 141. IDRIASA HALFAN BWAWALA 142. ERNEST MALIYATABU 143. YUSUPHDAIMU 144. FRANCIS MPAMBALYOTO 145. ADAM MHORO 146. JOHN J MAHUNDI 147. MTEULE MWALA 148. INNOCENT TEMBO 149. MICHAEL NOMBO 150. SAID RING'ORE 151. TIDO KOMBA 152. HAPPINESS CHALE APPLICANTS 153. MOHAMED NANGOMWA 154. SALUM H MKWAMBO 155. SALUM LIHUNDI 156. SALEHE SAMLI 157. BATULOME MBEPERA ^ 158. HASSAN ZUBERI 159. DITRAM MBAWALA 160. FOKAS O KOMBA 161. ISSA M LUAMBANO 162. KELVIN MABENA 163. KASSIM KASSIM MPATE VERSUS THE REGIONAL COMMISSIONER FOR RUVUMA REGION 1^^ RESPONDENT THE ATTORNEY GENERAL 2^° RESPONDENT RULING ON AN APPLICATION FOR JUDICIAL REVIEW Mansoor,J: Date of RULING- NOVEMBER,2023 The applicants hereinabove have applied for Judicial Review seeking for orders of certiorari against the respondents quashing the guidelines issued by the Regional Commissioner for Ruvuma in May 2023 which restricted marketing, transportation and saie of sesame, soybeans and pigeon peas. They aiso applied for orders of mandamus compeiiing the Regionai Commissioner for Ruvuma Region to remove the restrictions and barriers relating to marketing, transportation and sale of sesame, soybeans and pigeon peas. The Appiication is by way of chamber summons supported by the affidavit sworn and verified by Pumziko Philemon MIelwa for himself and on behalf of other 162 applicants. The applicants are all represented by Counsel Eliseus Ndunguru while the reispondents were represented by Emmanuel Daniel Bakari, and Zephaniah Manyesha, the Learned State Attorneys. The Applicants states that they are the peasants in Ruvuma District, they cultivate, among other crops, sesame, soy beans and pigeon peas, herein together shall be referred to as 'The crops". The respondents. In particular, the Regional Commissioner for Ruvuma Region issued Guidelines in May 2023 for controlling the Marketing, and Transportation of these crops i.e. Sesame, Soy Beans, and Pigeon Peas in Ruvuma Region for 2023-2024 Season. Particularly, Guideline 2.2 of the said Guidelines gives the directions to the farmers to deposit their crops to the Cooperative Unions, and that these crops will be sold by the Cooperative Unions on behalf of the farmers using the Warehouse Receipt System "Stakabadhi za Ghala". Guideline 2.2 reads as follows: 2.2 Mfumo unaooendekezwa kwa msimu 2023-2024 Kutokana na ufanisi wa masoko va mfumo wa stakabadhi za i i 1 ' Ghala kuoitia wama wa ushirika katika misimu ilivoimta. Mkoa wa Ruvuma utaendelea kutumia Mfumo wa Stakabadhiza Ghala kwa msimu huu wa masoko 2023/2024 ambaoo wakuHma/wanachama wataoaswa kukusanva ufuta. sova na Mbaazi. kuoitia ahala za wama wa ushirika wa msinai. Vvama wa ushirika wa msinai vitapeleka Ghala Kuu zHizosaiiHwa na Bodi va Leseni za Ghala Tanzania kwa aiiH va uendeshaii na usimamizi wa Biashara va Msimu huu wa 2023/2024. The Regional Commissioner nominated two Cooperative Unions which are the certified unions for collecting and selling soya beans, sesame and pigeon peas for Ruvuma Region. The unions nominated are SONAMCU and TAMCU LIMITED. .'I .1 The applicants complain that they are charged exorbitantly and they ! i ' ■ are subjected to double taxation, and this Is provided for In Section/ Item e of the Guidelines found at page 20,this section reads as follows: 6. MJENGEKO WA TOZO KWA KILO YA UFUTA, SOYA NA MBAAZI MAKATO/TOZOzitafanvwa kwa muiibu wa madekezo va Serikali na Mwonaozo huu kwa kuzinaatia aina na bei ahafi va zao la mkuHma sokoni. 6.1 Mienaeko wa Tozo kwa kilo moia va zao la ufuta. sova na mbaazi Tozo itakatwa kwenve kHa kilo va zao HtakalonunuHwa. Tozo zitakazoHowa na mnunuzi zitakuwa na iumla va shiHnai 224.7 kwa zao la ufuta na shUinai 127.7 kwa sova na mbaazi na mkuHma atah'pa tozo nvinaihe zitakazopanawa na mkutano wa wadau kwa kadri itakawoonekana umuhimu wake. Aidha I ■ I . , ' ' ■ ! • ■ ^ mnunuzi atalipa tozo kuHnaana na kiasi cha mazao alivonunua nie va be! va mkuiima /anaaiia walibu wa mnunuzi/mfanva biashara kifunau 4. 9 kifunau kidoao viii na iedwaii namba 3). 10 The applicants say that the charges and levies charged to the buyers I are indirectly charged to the farmers/as they affect the market prices of their drops. That the farmer is therefore paying TZS 307.7 for a i kilogram of Sesame, and TZS 179.7 for a kilogram of Soya Beans and I . ■ Pigeon Peas. The applicants also say that Section/Item 8 of the Guidelines creates offences for anyone who sells his own crops in contravention of the guidelines as it provides penalties and other punishments to the farmers for contravention of the guidelines. That the crops will be or have been forfeited or confiscated for contravening the guidelines. The applicants complain that their constitutional rights of freedom of association have been violated by the guidelines as they are now forced to be members of the association or associate with the associations nominated by the Regional Commissioner. They also complain of the violation of their right to own property provided under ■ ' i ■ ■ i ■ ■ - • . the Constitution of the United Republic of Tanzania. They also complain 11 of being subjected to double taxation as they pay ail the taxes and levies; in their respective locai government's inciuding Farm Gate Taxes/ Prices chargeabie in every gate they pass through. They aiso compiairi that the guideiines impose excessive, unnecessary, oppressive and discriminatory levies, and unreasonable charges and levies to the appiicants. That the guidelines were made without involving or consulting the farmers. That their rights and power to bargain for their own crops have been deprived as the crops are ^ coilected by the Cooperative Unions and the unions seiis their crops at the prices negotiated or earmarked by them. That forcing them to deposit their crops to the Cooperative Unions for which they are not members is equivalent to confiscation of their crops. They aiso, complain that the guidelines do not guarantee fairness or openness as they allege that there is corruption practiced by the union workers. The applicants gave the exampie of Sesame Sales Catalogue of LIMAMU AMCOS, KINGAMBI AMCOS and UMANA AMCOS. These catalogues were annexed to the affidavit of the applicant as annexure P3. That the guideiines bars transportation of farmer's own crops even from the farms to the godowns, or for their personal use. The applicants refer 12 to the; order of the Acting Municipal Executive Director for Songea District issued on 02 June 2023 annexed as annexure P4. Lastly, the applicants challenge the powers of the Regional Commissioner to make or issue these Guidelines. They say that the % Regional Commissioner has no powers to enact any laws or guidelines as the powers are reserved for the Parliament only. They argue that the directives or guidelines can only be passed by the Ministers through their respective Ministries. The Counsel for the Applicants argues that the Regional Commissioner is trying to argue that he has derived his powers to issue these guidelines from the Waraka wa Mrajisi wa Vyama vya Ushirika No. 1 of 2019, but the Waraka was for the season of 2019- 2020 which had already passed, and that the Waraka did not mention Sesanie, Soya Beans and Pigeon Peas. The applicants pray before the Court for an order of certiorari quashing the guidelines issued by the Regional Commissioner and an order of mandamus compelling the Regional Commissioner to remove the Guidelines and the restrictions contained therein. 13 The application was resisted by the respondents who fiied their joint counter affidavit and a statement in repiy, they state in paragraph 5 of ■■ I . . the counter affidavit that the guideiines issued by the 1=^ respondent did not prohibit marketing and transportation of the crops rather, the reguiations aliow and reguiate the marketing and transportation of the crops with the aim of protecting the interests of the peasants. The respondents aiso deny at paragraph 6 of their affidavit that the other crops are not coliected and stored in the warehouse, but they acknowledge that sesame, soya beans and pigeon peas are coilected and stored or kept in the warehouses beionging to the Cooperative Unions as stipulated in the guideiines. They also admit that the guidelines selected two Cooperative Unions for Ruvuma Region. They aiso aver that the ievies of TZS 307.7 for a kiiogram of sesame and TZS 179.7 for a kiiogram of soy beans and pigeon peas are levied to the buyers and not to the farmers. That farmers are only charged TZS 87 for a kilogram of sesame, and TZS 52 for a kilogram of soy beans and pigeon peas, and that the levies chargeable to a farmer is fair and reasonable. The respondents say the guidelines were enacted in 14 accordance with the law, the guidelines did not violate any provision of the Constitution, and that the guidelines do not impose excessive, unnecessary, oppressive or discriminatory levies to the farmers. The respondents deny to have stopped peasants from selling their crops amongst themselves or to the buyers within the Region or from using their crops freely, but they agree that the purchasers have been barred by the guidelines to market and transport the crops outside the Warehouse Receipt System. The respondents prayed before the court for the dismissal of the application as the applicants failed to demonstrate good reasons warranting the quashing of the guidelines. After hearing the counsels, the court has narrowed down the issues which needs the consideration of the Court, and these issues are: Whether the Regional Commissioner has powers to enact guidelines, or rather whether the Regional Commissioner has 15 enacted the guidelines or he is simply implementing the guidelines enacted by the Ministries; whether the guidelines have violated the Constitutional Rights of the Right to Associate; Whether the guideiines have violated the constitutional right to own property; Whether the guidelines have imposed double taxation and/or excessive and oppressive levies to the farmers; ' j , • ■ • Whether the Guidelines have created offences; The State Attorneys who represented the respondents have argued that the Regional Commissioner has powers under Article 61 (4) of the Constitution of the United Republic of Tanzania to supervise the discharge of all duties specified under any written laws, and that he shall discharge all duties and functions specified by or under any written laws enacted by the Parliament. The State Attorneys also submitted that the Regional Commissioner derived his powers under 16 Section 5 (2) and 3(b) of the Regional Administration Act, Cap 97 R: E 2019, in which he was given powers to supervise the guidelines issued by the Government. The Attorneys continue arguing that there!is Waraka wa Mraiisi wa Wizara ya Kiiimo No. 1 of 2019 kuhusu maelekezo ya serikaii va uendeshwaii na usimamizi wa Biashara va Denou. Choroko. Ufuta, Sova na Mbaazi kupitia mfumo wa vyama vya ushirika. This Waraka was issued on May 2019 by Tume ya Maendeieo ya Ushirika to the Boards of Cooperative Unions for Ruvuma, Shinyanga, Mwanza, Lindi, Pwani and Manyara, and the Waraka was for Seasons 2019/2020. The State Attorneys also argue that there are Guidelines issued by the Ministry of Agriculture titled "'MWONGOZO WA UUZAJI WA MAZAO YA KILIMO". In this Mwongozo which was issued by the Ministry of Agriculture in 2022, there was allowed different modes or systems of marketing and selling agriculture crops or products. The first mode was ""primary markets"(soko ia awaii) in which the iiceinced buyers were allowed to buy directly from the farmers. There was also Soko ia pill, which was ""secondary markets" or ""the 17 second market" which Includes the Agreements (Soko la Mkataba), auctions(minada), direct sale (soko la moja kwa moja) In which the Industrial buyers (buyers with factories) were allowed to purchase j, ' . crops! directly from the farmers/and strategic markets or specific markets (soko la kimkakati) such as soko la mchele la kimatalfa IgurusI, soko la kimatalfa la mahlndl KIbalgwa, soko la nafaka Tunduma, na soko la kimatalfa la vltunguu SInglda. In this Mwongozo, the Regional Secretariats were tasked with the following: I. Kuwajengea uwezo wataalamu wa Halmashauri kwa kushlrlkiana na wadau wenglne juu ya mifumo ya masoko ya klllmo; Educating the professionals and other stakeholders oh the market systems; II. Kudhlbltl ununuzl holela wa mazao ya klllmo; controlling the random or uncontrolled purchases of farmers crops; III. I Kutatua changamoto zinazojitokeza katlka maeneo yao kwa kushlrlkiana na wadau wenglne; na, to overcome the challenges, and 18 iv. Kuwasilisha taarifa za ununuzi wa mazao Wizara ya Kilimo na ofisi ya RAISI TAMISEMI. To file Reports of Purchases of I Crops to the Ministry of Agriculture and to the President's Office, TAMISEMI. There was also Mwongozo wa Biashara kwa kutumia mfumo wa Stakabadhi za Ghala uiiotoiewa chini ya Tume ya Maendeieo ya Ushirika (TCDC), Bodi ya Usimamizi wa Stakabadhi za Ghala (WRRB), na Soko ia Bidhaa Tanzania (TMX) wa msimu wa mwaka 2023/2024 kwa mazao ya choroko, soya, mbaazi na dengu, jointly issued by the Ministry of Agriculture, Ministry of Investments Industry and Trade, and the Ministry of Finance in July 2023. In the Mwongozo, ail farmers Of choroko (green gram), soy beans(soya), pigeon peas(mbaazi), and lentils (dengu)"crops" were directed to deposit their crops to Chama cha Ushjrika cha Msingi "Cooperative Unions". The farmer's will be issued with the receipt, which is the evidence that the crops of a stated quantity and quality have been deposited at a certified warehouse and the crops will be measured, graded and marked. The Cooperative Union will then take the crops to the registered warehouse for 19 auctioning. The warehouse would be registered by the Warehouse Receipt Regulatory Board (WRRB) under the Warehouse Receipt Act. The purchasers for these crops are required to register at the Soko la Bidhaa fanzania to enable them participate in the auction, the crops will be auctioned under the Warehouse Receipt System, Cap 339 R: E 2016. The registered buyers will be allowed to buy the crops in any place inlTanzania electronically. Then farmer's money will be paid by the Cooperative Union after the deductions of all levies and taxes. Under the Mwongozo, Clause 9,the Regional Governments and District Governments are given rights to form a committee for supervision of these guidelines and the Warehouse Receipt System. The Committees are comprised of Regional Administrative Secretary (RAS) in the Regional Committee, as the Chairperson, and District Administrative Officer (DAS), will be the chairperson in the District Level. For implementation of the guidelines issued by the Ministries outlined herein above, the Regional Commissioner for Ruvuma held a meeting on 13 May 2022, and the minutes of the meeting were availed to court, these minutes were titled "MUHTASARI WA KIKAO CHA WADAU WA 20 MAZAO YA UFUTA, SOYA NA MBAAZI KUPITIA MFUMO WA STAKABADHI ZA GHALA KILICHOFANYIKA TAREHE 13 MEI 2022 KATIKA UKUMBI WA MANISPAA YA SGNGEA. The resolutions passed in the meeting were to the effect that the soya beans, pigeon peas and sorghum or sesame produced In the Region will be sold under the Warehouse,Receipt System ''StakabadhI za Ghala". The meeting was attended by the representatives of the farmers and other stakeholders '^wadau, and during this meeting the Mwongozo, which Is the subject of this action was drafted and passed. Item 6 (Agenda 6) of the Meeting passed a Resolution as follows: "mazao ya ufuta, soya na mbaazi yanunullwe kwa mfumo wa StakabadhI za Ghala na kuwaslllsha kwa wadau wote Mwongozo wa ununuzl wa mazao ulloandallwa na kupltlshwa na kikao cha wadau'" This means that It was during the meeting that the Regional Commissioner and the stakeholders passed a Resolution to use the System of Warehouse Receipt System for selling their crops, thus In 21 order to implement the resoiutions passed at a meeting, the Regional Commissioner made the guideiines. I have Garefuliy studied the case of the applicants and that of the respondents, I have keeniy read and understood the different guideiines issued by the Ministries of Agriculture, Ministry of Investments, Industry and Trade, and the Ministry of Finance. I also went through the Constitution of the United Repubiic of Tanzania and the Regional Administrative Act, 1997 as weli as the Warehouse Receipt Act and the Cooperative Unions iaws. It is true as submitted by the Learned State Attorneys that the Regional Commissioners are appointed by the President under Article 611 of the Constitution of the United Repubiic of Tanzania, and under Articie 61 (4) of the Constitution,,the Regional Commissioner is the principai representative of the Government within the area of the region for which he is appointpd and for that purpose aii the executive functions of the Government in reiation to that region are exercised by or through the Regionai Commissioner. Under Section 5 (2) of the Regionai Administrative Act, 1997, the Regional Commissioner is responsibie for -22 securing the maintenance of law and order in the region, determining the specific direction of efforts in implementing the general policies of the Government in the region. The Regional Commissioner has been empowered by the Constitution as well as the Regional Administrative Act to implement and supervise the implementation of the laws, rules, regulations enacted by the Parliament, and also to implement and supervise the implementation of the directives and guidelines issued by the Government. We have seen herein above, and as submitted by the learned State Attorneys that there are directives or guidelines issued by the Government through the Ministries, in particular the Mwongozo wa Biashara kwa Kutumia Mfumo wa Stakabadhi za Ghala uliyotolewa chini ya Tume ya Maendeleo ya Ushirika (TCDC), Bodi ya Usimamizi wa Stakabadhi za Ghala(WRRB) na Soko la Bidhaa Tanzania (TMX)wa mwaka 2021 kwa mazao ya choroko, soya, ufuta, mbazi, dengu, and Mwongozo wa Biashara kwa Kutumia Mfumo wa Stakabadhi za Ghala uliotolewa chini ya Tume ya Maendeleo ya Ushirika (TCDC), Bodi ya Usimamizi wa Stakabadhi za Ghala (WRRB), na Soko la Bidhaa 23 Tanzania (TMX) wa msimu wa mwaka 2023/2024 kwa mazao ya ehoroko, soya, mbaazi na dengu. These guidelines were jointly issued by the Ministry of Agriculture, Ministry of Investments, Industry and Trade, and the Ministry of Finance in January 2021 and July 2023The; guidelines were never issued by the Regional Commissioner but by the Central Government through the Ministry of Agriculture, Ministry of Investments, Industry and Trade and the Ministry of Finance. Th^ Regiorjal Commissioner was doing his statutory duties of implefnenting and supervising the implementation of the guidelines (Miohgozo); issued; by the Government. The Guidelines issued by the Flegionaf Commissioner is not his own invention, he simply followed the guidelines issued by the Government for implementation in his Region. He held a meeting of stakeholders, thus all the peasants were involved in deciding which market system to use for the season ■ and they all agreed sto use the Warehouse Receipt System, and the resolutions were then reduced into writing for Implementation. If at all, the applicants herein were aggrieved by the Miongozo issued by the Government, the applicants ought to have brought to court for reviewi those viho have issued the guidelines. The applicants ought to hay| 24 suid the Government and the provisions of the: Govern Proceedings Act would have come into use. This was dearly stated in the case Of John Mwombfeki Bybiiibalirwa vs Regional Commissioner and Regional Police Conimander, BMkplyg (1987J TZHC f28 March 1987J, in which Judge Mwalusanya 2, as he then was hafd this to say: "The second element to be proved is that the respondents as public officers must have a public duty to perform imposed on them by statute or any other law but it should not be a duty owed solely to the state but should be a duty owed as well to the individual citizen. For example, in Kenya in the case of Re Application by Mwau [1985] L.R.C. (Const.) 444 G Simpson C.J. held that an order of mandamus could not issue against the Principal Immigration Officer to return a passport to the owner because under the Kenya Immigration Act, Cap 172. The duty to issue and withdraw passports is given to the Minister of Home Affairs and not the Principal Immigration Officer who merely acts on the instructions : of: ; 25 the Minister. Mandamus does not lie to a public officer who is acting purely as agent of the state for a duty owed to the state ; anjd not to the individual citizen. This is because the granting of mandamus would be tantamount to giving relief against the ; government which could not have been obtained in proceedings ^ ' against the government under the Government Proceedings Act ' •• I No. 16 of 1967. In this respect Wade and Bradley in their book Constitutional Law 7th Ed. (1965) Longmans at p.664 state ''The order does not lie against the Crown. If a government department is acting as agent of the Crown and is responsible only to the Crown having no duty to the subject in the matter, it is not amendable to the orders of the court in the exercise of its ;L ■ prerogative jurisdiction in granting or refusing it. And the J; 1 following passage frorhJudicial Review of Administrative Action by S.A. de Smith (2nd Ed. p. 462 was cited with approval by Goudie J. of the High Court of Uganda in the case of Shah v ! A.G. of Uganda (No.3): [1970] E.A. 543, he said: i ■ -: 1 1. 26 In mandamus cases it is recognized that when a statutory duty is cast upon a Crown servant in his official capacity and the duty is one owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where however a duty has been directly imposed by statute for the benefit of the subject upon a Crown servant as persona designata and the duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the Courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of this duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus on the application of a member of the pdbiic for the context may indicate that the servant is to act pLirely as an adviser to or agent of a Crown, but the situations in which .1 .. mandamus will not lie for this reason alone are, ' it is thought, comparatively few. Like Gourdie J. I adopt the 27 ! reasoning In the above extract. And it has also been pointed out that mandamus does not lie against a public officer as a matter of; course. The courts are reluctant to direct an order of: mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted. In this respect Mr. Prem in his work Law of Writs in India, England and America 2nd Ed. at p. 385 tells us that: Courts should proceed with extreme caution for the ■ I ' ■ ■ ' granting of the writ which wouid result in interference by " the judicial department with the management of the executive department ofthe government. The courts wiii not intervene to compel action by an executive officer unless his duty to act is cieariy established and plainly I defined and the obligation to actis preemptory. Now,similarly here, as it has been vividly clear that the guidelines have been issued by the Government through its ministries, and the Regional Commissioner was simply acting on the instructions of the Min stries, Certiorari or Mandamus cannot lie to the Regional 28 Commissioner who was acting purely as the agent of the State for a duty owed to the State/Government/I have seen the Guidelines (Mwdngozo)issued by the Regional Commissioner, but that Mwongozo is not an invention of the Regional Commissioner, the Mwongozo and its contents is what is provided in the Miongozo issued by the Ministries of Agriculture, Ministry of Investments, and Industry and Trade and the Ministry of Finance for regulating and controlling the market and selling of agricultural products to unscrupulous purchasers who usually benefits at the expenses of the farmers. The intention of the Government in giving the Miongozo is to control the market of these crops, and to protect the farmers from being ripped off by the traders. The intention is to have a proper and strong system of marketing the agricultural products in order to fetch a good and reasonable price for their produces. The Regional Commissioner is tasked to implement the Government Directives and Guidelines and to ensure he performs his obligations, he created a mechanism at the Regional Level, and the guidelines he issued is simply a vehicle for monitoring compliance of the Government Guidelines in his Region. The peasants who are aggrieved by the decision made by the Government and if at all their 29 rights to own property or to trade freely or to associate have been violated by the Government decisions, there are petition procedures which allows individuals to challenge breaches by the Government of I ■ . ■ their rights, the Regional Commissioner in this case acts as an agent of the Government charged with the enforcement of the directives and guidelines issued by the Government through the Ministries. The Guidelines have been issued by the Government and are ■ ■ I ■ ■ applicable nationwide, they were not issued specifically for Ruvuma Region. As held by Hon Justice Mwalusanya in the case of John Mwombeki Byombalirwa (supra)''Judicial review is an important weaponin the hands of the judges of this country by which an ordinary citizen can challenge an oppressive administrative action. And judicial review by means of prerogative orders (certiorari, prohibition . 1 . ■ . ■ ■' ' ■ ■ ■ ■ ' and mandamus) is one of those effective ways employed to challenge administrative action. Equally however it is important to realise that judicial review is not the same thing as substitution of the court's opinion on the merits for the opinion of the person (Dr body to whom a discretionary decision-making power has been committed. It is for the executive to make administrative 30 decisions. Parliament has empowered the executive to decide what it ! thinks necessary. It has to make political and economic judgments. It may make a sound one or a bad one. The courts might have been able to make a better one than the executive made; but it must be remembered that parliament, no doubt for good reason, has not i • ' • • entrusted guidance to the courts.'' ! The guidelines issued by the Government for controlling and regulating the marketing and sale of agriculture crops is a weighty matter of the State and as said by Honourable Judge herein above, it is for the executive to make the administrative decisions for smooth running of ' 1 . . the Government, and Parliament has empowered the executive to decide what it thinks necessary, and the administrative decisions made by the Government may be bad of good, and 'The courts should not beTpo pager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state". I agree to this position of the Judge, and not only that the Regional Commissioner did not invent his own guidelines, he simply ... I , , - . . . - ^ worked out a mechanism for enforcing the directives and guidelines already made by the State, but again. Courts should not be too eager 31 tOj interfere with the decisions made by the State simply because they if' . , , _ . ■ • , ' arje asked to do so. Therefore,the Court cannot issue the orders sought against the Regional Commissioner who did not make the Guidelines. '1' : • • The orders of certiorari and mandamus cannot lie against the Regional Commissioner. Since the first issue has sufficed to dispose of the matter, it will not be appropriate to discuss and deliberate on the other issues posed by the Court. Resultantly, from the above discussions, the application is 4 dismissed for it is unmeritorious. DATED and DELIVERED at MOROGORO by Video coitf^ncing this 1®'day of NOVEMBER,2023 OF O 0- > UJ ■L:. ■. ■ ' L. MANSOOR JUDGE 1ST NOVEMBER 2023 ;i :• ■ ■■V •• : , ;;M ■ . , ■ ' :: ■ i ^ 'i ' ' ' . 32 ■