Reginald Tlatlaa Sanka v Ministry for Agriculture

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB - REGISTRY OF MANYARA AT BABATI MISCELLANEOUS CIVIL CAUSE NO 25084 OF 2024 IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND MANDAMUS IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) ACT CAP. 310 IN THE MATTER OF LAW REFORM (FATAL ACCIDENTS AND MISCELLANEOUS PROVISIONS) (JUDICIAL REVIEW, PROCEDURE AND FEES) RULES, 2014 IN THE MATTER OF THE CEREALS AND OTHER PRODUCE ACT 2009 1. REGINALD TLATLAA SANKA 2. JACKOB JOHN LULU........... 3. ATHUMAN KARUNDE MDEME 4. LUCAS TARMO AMSI....................................................... APPLICANTS 5. BOAY QADWE ORRI....................................................... 6. VICENT SLAA GINYO.................................................... 7. STEPHEN ALEX MALIMUNGU....................................... 8. ALEX MATHAYO........................................................... 9. DORCUS SUMNI........................................................... 10. DOMNYAKI RASIRASI............................................... 11. DANIEL SEHHA BALOHO........................................... 1 12. PASKALI JOSEPH BURA............................................ 13. FRANSIS MATHIAS DOMEL....................................... 14. JOSHUA MOLLEL...................................................... 15. MANGA LORICO........................................................ 16. RAJABU RAYMOND................................................ 17. EVARIST NICHODEMUS ............................................ 18. PHILIPO FABIANO.................................................... 19. TUMAINI KOMBO....................................................... 20. BERNADO CLEMENTINI AKONAAY............................ 21. ATHUMAN MAROBO................................................... APPLICANTS 22. ALLY MSILAGI 23. JACKSONE MANYERESA............................................. 24. DANIEL ADAMU SALIMU........................................... 25. PASCAL MALANGWA.................................................. 26. OMARY BARAN.......................................................... 27. ISAYA MANGA............................................................ 28. BARAKA YOHANA....................................................... 29. ZEPHANIA JOSEPH.................................................... 30. SADIKI RASHIDI MTALI........................................... 31. BOMBO ANTONI GENAY........................................... 32. MATHAYO AKONAAY BAYO....................................... 2 33. KALIST DIAY............................. 34. PASKALI JOHN DIAY................ 35. MARTHA KIFALUKA.................. 36. NASSARY WENSESLAUS........... 37. STELLA TADEY.......................... 38. ELIZABHET SHIRIMA................ 39. EMMANUEL BOAY..................... 40. CESILIA TEMBA ....................... 41. HAFIDHI HASAN MJEJA............ 42. ISIDOR DAHAYE SIQIS............ 43. PAULO ALPHONCE.................... APPLICANTS 44. ANJELA MAKUNDI.................... 45. NICOLAUS BENEDICT AKONAAY 46. EMANUEL MUFENYA................. 47. ADAM TANDU............................ 48. ANDREA STEPHANO.................. 49. AUGUSTINO MUHALE............... 50. IBRAHIMU MANGI.................... 51. PETER GIRANGAY..................... 52. YOHANA MKWAWI................... 53. BARAKA YAMBI........................ 3 54. ERASTO CHALES...................................................... 55. MARTIN SENGE....................................................... 56. KANGO KARATA....................................................... 57. VICTOR MCHAKI...................................................... 58. MONYAICHI MUSHI................................................. 59. LEMBURIS LUCAS.................................................... 60. SWALEHE MEMBI..................................................... 61. PAULO BLASY............................................................ APPLICANTS 62. YUDA PETER AKONAAY............................................ 63. KALISTI YUDA.......................................................... 64. RAMADHAN HANGALI.............................................. 65. LAURENTI MORINGA............................................... 66. EMANUEL MANGA..................................................... 67. MNANURA PAGWEJE................................................ 68. SEURI LEBARANI..................................................... 69. BRUNO LEGUTWA..................................................... 70. LOSHILIYE MAIBUKO............................................... 71. SUNGURA MAIBUKO................................................ 72. BAKARI BARAE........................................................ 73. JUMA HANGALI TLAQASI........................................ 74. GABRIEL MARTIN.................................................... 4 75. MICHAEL ISSARA.................................................... 76. PAULO ISSARA........................................................ 77. SAMWEL MBISE....................................................... 78. ISAYA MBOYO.......................................................... 79. JOSEPH MORINGA................................................... 80. LALAHE SAILEVU.................................................... 81. YUSTINI JOSEPH.................................................... 82. MSEE LENGIYO....................................................... 83. JOHN PHILIPO........................................................ 84. FAUDHIA MUSA...................................................... APPLICANTS 85. ASHA BURA.............................................................. 86. RITTA WEMA........................................................... 87. JOISI JULIAS.......................................................... 88. JOISI ADANI............................................................ 89. MARY NADA............................................................. 90. JULIETH WEMA....................................................... 91. ELIZABETH PAULO................................................... 92. EMANUEL MILISHILI............................................... 93. TIMOTHEO LUCIAN.................................................. 94. RICHARD ADIELI..................................................... 95. LEMTIYE SAVIYO..................................................... 5 96. RAJABU JUMANNE................................................... 97. MURAN NAIBALA...................................................... 98. JUMBE LESOLA........................................................ 99. HIITII JELLA............................................................. 100. GINE STINO.......................................................... 101. ADAMU ISSA.......................................................... 102. YOHANA P. SULEY.................................................. 103. TALIANI HANGALI.................................................. 104. ABEL PAULO............................................................ APPLICANTS 105. PHILIPO SIMON...................................................... 106. KASIMU JUMA LEMA ............................................... 107. GUDILA THADE MASSAWE...................................... 108. PRAEXIDI EDIMUND MOSHA.................................. 109. DASTAN MURRO....................................................... 110. VERONICA DANCAN................................................ 111. JACKLINE KOKA....................................................... 112. KADENGE J. PANGA............................................... 113. DAMIANO DANIEL................................................. 114. IDI HILONGA......................................................... 115. AUGUSTINO MAJAWA............................................ 116. LAURENT WEMA SHAURI...................................... 6 117. HAPPINES KASBERTH MREMI.............................. 118. IDDI B. HUSSEIN.................................................. APPLICANTS 119. DAMIANO HHAWU AMMA ..................................... 120. RHOBET S. MURATHA........................................... _ VERUS 1. MINISTRY FOR AGRICULTURE.................................. 2. MINISTRY OF INDUSTRY AND TRADE....................... 3. MINISTRY FOR FINANCE RESPONDENTS 4. MINISTRY OF REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT ...................................... 5. THE HON ATTORNEY GENERAL ............................... RULING 29th and 31st October, 2024 MIRINDO, J.: The 121 persons listed in the title of this decision are applying for judicial review of a guideline entitled “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Mafuta Toleo la 3-2024 chini ya Mamlaka ya Udhibiti wa Nafaka na Mazao Mchanganyiko (COPRA), Tume ya Maendeleo ya Ushirikia (TCDC), Bodi ya Usimamizi wa Stakabadhi za Ghala (WRRB) na Soko la Bidhaa Tanzania (TMX). 7 The respondents who are the Ministry for Agriculture, Ministry of Industry and Trade, Ministry for Finance, Ministry of Regional Administration and Local Government and the Attorney General have objected to this application. The essence of the preliminary objection is that these ministries have been wrongly sued. At the hearing of the application, the 121 applicants were represented by Mr. Meinrad D’Souza and Mr. Sheck Mfinanga, learned advocates. Mr. Nixon Tenges and Ms. Neema Cornel, learned State Attorneys appeared for the respondents. Mr. D’Souza and Mr. Mfinanga, learned advocates argued that the objection does not amount to a pure question of law because its determination depends on looking at the Mwongozo. Mr. Mfinanga, alerted the Court on the impropriety of referring to Mwongozo at this preliminary stage to determine if the wrong parties have been sued. He noticed that such determination is likely to fall into the merit of the application. In dealing with this objection, it is important to examine the procedural framework for parties in applications for judicial review. The Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, 2014 govern applications for judicial review but do not adequately address the question of parties. Rule 17 of those Rules directs the High Court to be guided by its general rules of practice and procedure for matters not covered by 8 the Rules. The general principles of civil procedure in the High Court are set forth under the Civil Procedure Code [ Cap. 33 R.E. 2019] and its rules. Rule 3 of Order 1 of the Civil Procedure Rules directs that all parties against whom “a right to relief,” is sought should be joined in one action if a “common” issue of law or fact will fall into consideration. Under Rule 13 of Order 1, every objection that a party has been wrongly joined in a case should “be taken at the earliest possible opportunity” otherwise it shall be deemed to have been “waived”. It is at once clear from Rule 13 that the respondents were entitled to raise the objection at the earliest opportunity. The question that now follows for determination is if the four respondents should not have been sued in the sense that they are “wrong” respondents. Mr. Tenges, learned State Attorney, contended that the application for judicial review is misplaced because it has been filed against wrong parties who have not issued the Mwongozo. He pointed that the Mwongozo, the subject-matter of the application, was issued by authorities with distinct legal personality. He maintained that the Mwongozo was issued by COPRA, TCDC, WRRB, and TMX and signed by officials from those authorities. The Cereals and other Produce Board (COPRA) is established under section 4 (2) (b) of the Cereals and Other Produce Act, 19 of 2009 as a body corporate capable of suing and being sued. The Tanzania Cooperative Development Commission (TCDC) is established under section 6 (3) (a) of the 9 Cooperative Societies Act, 6 of 2013 and functions under section 6 (3) of that Act as a body corporate capable of suing or being sued. The Warehouse Receipts Regulatory Board (WRRB) is established under section 4 (1) of the Warehouse Receipt Act [Cap. 339 R.E. 2016] and operates as a body corporate capable of suing or being sued under section 4(2) (a) of that Act. Mr. Tenges stated that the Tanzania Mercantile Exchange (TMX) is a public company owned by the Government capable of suing or being sued by its names. In conclusion, the learned State Attorney maintained that it is these bodies corporate that should have been sued by their names and as this was not done the application stands to be struck out with costs. In opposition, Mr. D’ Souza, learned advocate, highlighted that all these entities operate within specific Ministries and the applicants, as dominus litis, opted to sue the ministries instead of the entities in question. He added that the four respondents have no immunity from being sued and it has not been contended that the four respondents cannot be sued. He asserted that these entities form a small part within Ministries and they cannot operate outside the ministerial guidance. Mr. Mfinanga, learned advocate, stated that the Mwongozo has ministerial blessings from the responsible ministries. The answer to this question depends on the legal status of the four respondents. Under section 6 (2) of the Government Proceedings Act [Cap. 5 10 R.E. 2019] a “suit” may be brought, among others, a Government Ministry, Department or Officer who has committed the civil wrong. Thus, Ministries are capable of being sued. The narrow question before me is if suing ministries instead of COPRA, TCDC, WRRB and TMX was sufficient. Mr. D’Souza argued that it was sufficient to sue the ministries. Mr. Tenges argued that as these entities are capable of being sued, they should have been sued and not the Ministries. The COPRA functions under the ministerial and supervisory functions of the Minister responsible for agriculture. Save for the Chairman, all members of the Board are appointed by the Minister under section 5 (1) of the Cereals and Other Produce Act, 19 of 2009. Under section 21 (1) the Minister has powers to provide directions to the COPRA and if they are not complied with, the COPRA may be subjected to ministerial disciplinary action. It follows that COPRA is a semi-autonomous government department within the ministry responsible for agriculture performing statutory functions under ministerial guidance. According to section 6(2) of the the Cooperative Societies Act, 6 of 2013, the TCDC is “an independent department of the Government under the Ministry responsible for cooperative development.” As the TCDC is capable of suing or being sued under section (3) (a) of the Cooperative Societies Act, it has an obligation under section 6 (4) to notify the Attorney General about the case 11 brought by or against the TCDC and notice to institute a case by or against the TCDC. Besides being capable of suing or being sued under section 4(2) (a) of Warehouse Receipt Act [Cap. 339 R.E. 2016], the Attorney General has “the right to intervene in any suit or matter by, or against” the WRRB in terms of section 4 (4) of that Act. For the purposes of Attorney General’s intervention, the WRRB is bound by the provisions of section 4 (4) to notify the Attorney General on all impending cases by or against the WRRB, intention to institute a case by or against the WRRB. The TMX is a public limited company established under the Commodities Exchange Act, 2015 under the Ministry of Finance. Public entities are conferred corporate status in the sense of making them semi-autonomous or independent government departments. As stated in H. W.R. Wade and C.F. Forsyth, Administrative Law, 9th edn, New York: Oxford University Press, 2004, at page 142: ...Whenever Parliament is willing to grant a sufficient measure of autonomy, the public corporation is commonly employed. It has legal existence of its own, and can be given statutory functions which can operate outside the normal organisation of the service of the .[Government]. It offers scope for many kinds of government 12 experiment, under which central control, local control, particular expertise and independence can be blended in the desired proportions. The four public entities can be sued in their own names provided that the Attorney General is made a party pursuant to their establishing statutes or section 6 (5) of the Government Proceedings Act. Public entities are to some extent still subject to ministerial direction and control as stated in E.C.S. Wade and A.W. Bradley: Constitutional and Administrative Law, 10th edn, London and New York: Longman, 1985, at page 304: ...If there is to be public control of a corporation this must be achieved primarily through the relevant minister, for its he who appoints the chairman and members of the board, who has power to call for information and give directions to the board, who approves the board’s external financing limits, and who receives the board’s accounts and annual report. This does not mean that a minister should be responsible for every act of day-today administration, but he must at least have power to intervene on strategic matters which by the legislation are subject to his approval. In turn ministerial responsibility to Parliament requires that minister should account to Parliament for the use that they make of their statutory powers. Even though the four entities are not completely independent of ministerial direction and control, they derive from their establishment Acts a large measure 13 of functional autonomy that enables them to sue or be sued in their own names along with the Attorney General. The applicants seek the order of certiorari against the Mwongozo issued by COPRA, TCDC, WRRB and TMX and the order of mandamus against the “Respondents”. While the Mwongozo must have obtained ministerial approvals and the four respondents are proper parties, it is the guideline designed by semi- autonomous public entities that is being challenged in this Court. A decision on the guideline will directly affect the operation of these four public entities and to do so in their absence would defeat their semi-autonomous nature in violation of the constitutional principle of natural justice. I agree with Mr. D’Souza that the applicants are dominus litis but I disagree with him that they have the right to conduct their application in the absence of a necessary party. As stated in Mulla: The Code of Civil Procedure, 18th edn, Vol. 2, Haryana: Lexis Nexis, 2013, at page 1521, the right of a plaintiff, like the present applicants, to choose whom to sue is not limited: Plaintiff is the dominus litis, He cannot be compelled to sue a person against whom he does not claim any relief... Doctrine of “dominus litis” is applied to one who thought not originally a party has made himself one, by intervention or otherwise, and has assumed the entire control and responsibility for one side, and is treated by the court as liable for costs as a person who is really and directly in this suit as a 14 party...The theory of dominus Htiis, however, should not be overstated in the matter of impleading of parties, because it is the duty of the court to ensure that if for deciding the real matter in dispute, a person is a necessary party, the court can order such person to be impleaded. It is settled law that it is open to the court to add any such person as necessary party in the suit to enable the court to effectively adjudicate the question involved in the suit. However, for exercise of power under... [Order 1 Rule 10], the court has to come to a finding that the party is a necessary party or proper party. Therefore, the addition of parties would depend upon the judicial discretion which has to be exercised in the facts and circumstances of the case. Under Order 1 Rule 10 of the Civil Procedure Rules, it is at the discretion of the court to order a party to be joined in the proceedings whenever the court forms the view that the presence of that party is necessary for effective and complete determination of questions before it. According to the 21st Century Food and Packaging Ltd v Tanzania Sugar Producers Association, Civil Appeal 91 of 2003, a necessary party must be added to ensure that it is accorded the right to beError! Bookmark not defined. heard. Adding the necessary further reinforces the semi-autonomous nature of public entities introduced by the legislature in their establishing Acts. 15 In the instant case the applicants obtained an ex parte leave of this Court to file the main application for judicial review and it may be argued that the joining of the four entities should have been during the leave stage. The answer to this argument will vary with circumstances of the application. The matter before me is about applicants who have sued ministries for the decision of the entities under their portfolio but omitted to sue those entities. Although Ministries may be sued alone, it is common to sue them with their semi-autonomous entities. For instance in Tanzania Air Services Ltd v Minister for Labour, Attorney General and the Commissioner Labour [1996] TLR 217; Adecon Fisheries (T) Ltd v Director of Fisheries in the Ministry of Tourism and Natural Resource, Minister of Tourism, Natural Resources and Environment, Director- General of the Investment Promotion Centre and Attorney General [1996] TLR 352; and Pendo Masasi v the Minister for Labour and Youth Development, the Attorney General and Tanzania Breweries Ltd (Civil Appeal 34 of 2019) [2021] TZCA 331. It is also common to sue semi-autonomous public entities alone as was the case in Re Simeon Manyaki and re the Executive Committee and Council of the Institute of Finance Management [1984] TLR 304; Ally Linus and Others v Tanzania Harbours Authority and the Labour Conciliation Board of Temeke District [1998]TLR 6; and Conrad Baerege v Registrar of Cooperative 16 Societies and Attorney General [1998] TLR 23. These three variations largely depend on the nature of the subject-matter in dispute. In the instant case, there is non-joinder of the statutory entities while their parent ministries have been properly sued. The Attorney General has equally been duly joined as the fifth respondent. The Attorney General’s legal role was echoed by the Court of Appeal 21st Century Food and Packaging Ltd cited above: ...It is common knowledge that the Attorney General as Principal Legal Adviser to the government, ordinarily represents government ministries, departements or other government agencies. As all the five respondents represent equal interests of the Government in the Mwongozo and were parties to the application for leave to apply for judicial review, the grant of the leave to apply for judicial review took into account the interests of the respondents even though the four entities were not parties to that application. I hold that there is no legal impediment to the addition of the four statutory entities in this main application. For these reasons, I uphold the objection with an order that this main application for judicial review be amended within ten days, filed in court and 17 served to the respondents. The respondents shall file their amended documents in court, and serve them to the applicants within ten days after receiving the amended application. Each party to bear its own costs. It is so ordered. DATED at BABATI this 29th day of October 2024 F.M. MIRINDO JUDGE COURT: Ruling delivered this 31st day of October, 2024 in the presence of several applicants in person including Reginald Tlatlaa Sanka and in the presence of Mr. Nixon Tenges, State Attorney for the respondents. B/C: Anna Mathayo (RMA). Right of appeal explained F.M. MIRINDO JUDGE 18