Reginald Tlatlaa Sanka and Others v Ministry for Agriculture and Others

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MANYARA SUB-REGISTRY 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 BETWEEN 1. REGINALD TLATLAA SANKA…………………………… 2. JACKOB JOHN LULU……………………………………… 3. ATHUMAN KARUNDE MDEME…………………………. 4. LUCAS TARMO AMSI…………………………………….. 5. BOAY QADWE ORRI……………………………………… 6. VICENT SLAA GINYO……………………………………. 7. STEPHEN ALEX MALIMUNGU…………………………. 8. ALEX MATHAYO…………………………………………… 9. DORCUS SUMNI…………………………………………... 10. LOMNYAKI RASIRASI………………………………….. APPLICANTS 11. DANIEL SEHHA BALOHO………………………………. 12. PASKALI JOSEPH BURA……………………………….. 13. FRANSIS MATHIAS DOMEL……………………………. 14. JOSHUA MOLLEL…………………………………………. 15. MANGA LORICO………………………………………….. 16. RAJABU RAYMOND………………………………………. 17. EVARISTI NICHODEMUS……………………………….. 18. PHILIPO FABIANO……………………………............. 19. TUMAINI KOMBO………………………………………… 20. BERNADO CLEMENTINI AKONAAY…………………… 1 21. ATHUMAN MAROBO…………………………………………………. 22. ALLY MSILAGI………………………………………………………… 23. JACKSONE MANYERESA………………………………………....... 24. DANIEL ADAMU SALIMU………………………………….……….. 25. PASCAL MLANGWA………………………………………………….. 26. OMARY BARAN………………………………………………………. 27. ISAYA MANGA………………………………………………………… 28. BARAKA YOHANA……………………………………………………. 29. ZEPHANIA JOSEPH………………………………………………….. 30. SADIKI RASHIDI MTALI…………………………………………… 31. BOMBO ANTONI GENAY……………………………........……….. 32. MATHAYO AKONAAY BAYO……………………………………….. 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………………………………….......................... APPLICANTS 41. HIFIDH HASAN MJEJA…………………………………………….. 42. ISIDOR DAHAYE SIQIS……………………………………………. 43. PAULO ALPHONCE…………………………………………………… 44. ANJELA MAKUNDI…………………………………………………… 45. NICOLAUS BENEDICT AKONAAY………………………………… 46. EMANUEL MEFUNYA………………………………………………… 47. ADAM TANDU………………………………..……………………….. 48. ANDREA STEPHANO………………………………………………… 49. AUGUSTINO MUHALE………………………………………………. 50. IBRAHIMU MANGI…………………………………………………… 51. PETER GIRANGAY…………………………………….................... 52. YOHANA MKWAWI………………………………………………….. 53. BARAKA YAMBI………………………………………………………. 54. ERASTO CHALES……………………………………………………… 55. MARTIN SENGE………………………………………………………. 56. KANGO KARATA……………………………………………………… 57. VICTOR MCHAKI……………………………………………………. 58. MONYAICHI MUSHI…………………………………………………. 59. LEMBURIS LUCAS……………………………………………………. 2 60. SWALEHE MEMBI……………………………………………….. 61. PAULO BLASY…………………………..………………………… 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……………………………………………….. 75. MICHAEL ISSARA……………………………………………….. 76. PAULO ISSARA……………………………………………………. 77. SAMWEL MBISE………………………………………………….. 78. ISAYA MBOYO…………………………………………………….. 79. JOSEPH MORINGA………………………………………………. APPLICANTS 80. LALAHE SAILEVU………………………………..……………….. 81. YUSTINI JOSEPH…………………………….......................... 82. MSEE LENGIYO…………………………………………………… 83. JOHN PHILIPO……………………………………………………. 84. FAUDHIA MUSA………………………………………………….. 85. ASHA BURA………………………………………………………… 86. RITTA WEMA………………………………………………………. 87. JOISI JULIAS……………………………………………………… 88. JOISI ADANI………………………………………………………. 89. MARY NADA……………………………………………………….. 90. JULIETH WEMA…………………………………………………... 91. ELIZABETH PAULO………………………………………………. 92. EMANUELI MILISHILI………………………………………….. 93. TIMOTHEO LUCIANI…………………………………………… 94. RICHARD ADIELI………………………………………………… 95. LEMTIYE SAVIYO………………………………………………… 96. RAJABU JUMANNE……………………………………………….. 97. MURAN NAIBALA………………………………………………… 98. JUMBE LESOLA……………………………………………………. 3 99. HIITI JELLA…………………………………………………….. 100. GINE STINO…………………………………………………… 101. ADAMU ISSA………………………………………………….. 102. YOHANA P. SULEY…………………………………………… 103. TALIANI HANGALI…………………………………………… 104. ABEL PAULO…………………………………………………… 105. PHILIPO SIMON………………………………………………. 106. KASIMU JUMA LEMA………………………………………… 107. GUDILA THADE MASSAWE…………………………………. 108. PRAEXIDI EDIMUND MOSHA……………………………… 109. DASTAN MURRO………………………….......................... 110. VERONICA DANCAN………………………….................... APPLICANTS 111. JACKLINE KOKA …………………………………………….. 112. KADENGE J. PANGA…………………………………………. 113. DAMIANO DANIEL…………………………..………………. 114. IDI HILONGA………………………………………………….. 115. AUGUSTINO MAJAWA………………………………………. 116. LAURENT WEMA SHAURI…………………………………... 117. HAPPINES KASBETH MREMI………………………………. 118. IDDI B. HUSSEIN……………………………………………... 119. DAMIANO HHAWU AMMA………………………………….. 120. RHOBET S. MURATHA……………………………………….. VERSUS 1. MINISTRY FOR AGRICULTURE …………………………. 2. MINISTRY OF INDUSTRY AND TRADE ………………… 3. MINISTRY FOR FINANCE …………………………………… 4. MINISTRY OF REGIONAL ADMINISTRATION AND LOCAL GOVERNMENT……………………………… 5. THE HON. ATTORNEY GENERAL ………………………. 6. CEREALS AND OTHER PRODUCE BOARD ……………. RESPONDENTS 7. TANZANIA COOPERATIVE DEVELOPMENT COMMISSION ……………………………………………….. 8. WAREHOUSE RECEIPTS REGULATORY BOARD ……………………………………………………….. 9. TANZANIA MERCANTILE EXCHANGE PLC …….…….. . 10. CEREALS AND OTHER PRODUCE REGULATORY AUTHORITY …………………………………………….….…. 4 RULING 4th and 13th February 2025 MIRINDO J: [1] This case is about the binding nature of administrative guidelines and it raises increasingly complex questions in administrative law. The Constitution of the United Republic of Tanzania of 1977 confers law-making function to the Parliament in the form of parent Acts [Articles 4 and 64] and authorises the Parliament to delegate its law- making function to ministers and government departments [Article 97 (5)] in the form of subordinate legislation (commonly referred to as regulations or delegated legislation). Within this constitutional framework, the High Court has supervisory jurisdiction over public authorities exercisable by way of judicial review as partially encapsulated by the principle of legality enshrined under Article 26 of the Constitution. Part of the supervisory jurisdiction of the High Court entails pronouncing upon the legality of subordinate legislation vis-à-vis its parent Act, other Acts of Parliament, and general laws of the land. In the instant case, four public authorities issued a business guideline on chickpeas, pigeon peas, soy beans and sesame seeds entitled in Kiswahili as “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024.” The legality of this Business Guideline is at the centre of these proceedings before the High Court at Babati. A group of small and medium scale farmers, traders and transporters of various agricultural commodities including sunflowers, chickpeas, pigeon peas, soy beans and sesame seeds are challenging the legality of the Business 5 Guideline for violating the rules of natural justice and indirectly forcing them to be members of cooperative societies, for being ultra vires, and stifling fair competition. Does the Business Guideline amount to subordinate legislation so that it can be subjected to judicial review by the High Court? The answer to this question overshadows issues surrounding the legality of the Business Guideline. [2] The applicants obtained an ex parte leave of this Court to apply for orders of certiorari and mandamus against the Ministry for Agriculture; Ministry of Industry and Trade, Ministry for Finance; Ministry of Regional Administration and Local Government, and the Attorney General who is a statutory party. At the commencement of the hearing of this main application for judicial review, I partly upheld the respondents’ objection that it was insufficient to sue the ministries alone given that the Business Guideline was issued by corporate bodies capable of suing and being sued. I formed the view that while the ministries could properly be sued, the statutory framework demanded that the public authorities involved in the designing of the Business Guideline be added to the application. Apart from the fact that leave was granted ex parte and there was no room for these objections, I saw no problem in adding the public authorities in this main application because the public authorities operate under ministries and on some occasion, ministries can be sued alone for acts conducted by public authorities. I would add here that under the alter ego principle otherwise referred to as the “Carltona principle” acts of government departments are done in the name of the minister who is responsible to the Parliament (Wade, H.W.R. and Forsyth, C., Administrative Law, 11th edn, Oxford: Oxford University Press, 2014, pp 266-267; 6 Hogg, P.W., Constitutional Law of Canada, Toronto: Thomson Canada Ltd 1999, p. 253). Besides, constitutionally speaking the Attorney General, the chief legal adviser of the government, was sued from the leave stage and is capable of being sued on behalf of any government department (Article 59 of the Constitution). For these reasons, I allowed the amendment. Accordingly, I directed the applicants to add four public authorities to the application. These are the Cereals and Other Produce Board (the sixth respondent), Tanzania Cooperative Development Commission (the seventh respondent), Warehouse Receipts Regulatory Board (the eighth respondent), and the Tanzania Mercantile Exchange PLC (the ninth respondent). At the adjourned hearing, the applicants obtained leave of this Court to add the Cereals and Other Produce Regulatory Authority as the tenth respondent. [3] The applicants were represented by Mr. Meinard Menino D’Souza and Mr. Sheck Mfinanga, learned advocates. A team of lawyers consisting of Mr. Mark Mulwambo, learned Principal State Attorney, Mr. Nickson Tenges, Ms. Jacquiline Kinyasi and Mr. Erigh Rumisha, learned State Attorneys jointly advocated for the respondents. Both parties obtained leave of this Court to argue the application by way of written submissions. I am grateful for their submissions notwithstanding the applicants’ repetitious pleadings and arguments. [4] Before going to the merits of the application, there are three preliminary issues to be resolved. The applicants interposed in their written submission that inasmuch as every respondent is capable of suing and being sued in its own right and name, the joint statement prepared by the eighth respondent on behalf of the other respondents 7 is insufficient. In this regard, the applicants argued that it is only the eighth respondent who has contested the application. In opposition, the respondents submitted that it is possible for one party to swear an affidavit on behalf of others if authorised to do so and that is what was done here. [5] The propriety of a person swearing an affidavit on behalf of other parties came for consideration in the oft-cited case of Augustino Meshack and Five Others v Makisi Nginana and Two Others, Miscellaneous Civil Application 112 of 1994, High Court of Tanzania at Arusha (1994). The applicant, Augustino Meshack, swore an affidavit on behalf of his five fellow applicants. The respondent’s counsel challenged the competency of the application observing that the five applicants did not swear affidavit in support of the application and there was no evidence that Augustino Meshack was authorised to swear the affidavit on their behalf. In a familiar holding, Mroso J held that the presence of five applicants in court who never disowned the affidavit sworn by Augustino Meshack was sufficient proof that they authorised him to swear the affidavit on their behalf and there was no need of power of attorney: …where one of several applicants states that he is deposing in an affidavit on facts for and on behalf of the other applicants and on the hearing date the other applicants are present and do not dissociate themselves from the contents of the filed affidavit by one of themselves, the application will have been properly supported by affidavit and will be competent. The applicant filing the affidavit will not need to have a power of attorney document to evidence the authority from his co-applicants. The authorisation from the other applicants will have been manifested by the other applicants’ knowing the contents of the affidavit and in not dissociating themselves from them. 8 [6] This holding has not only been approved by the Court of Appeal in Haidar Thabit Kombo and 10 Others v Abbas Khatib Haji and 2 Others, Civil Application 2 of 2006, Court of Appeal of Tanzania at Zanzibar (2006) (unreported) but the Court of Appeal also applied a similar principle in Manoharlal Aggarwal v Tanganyika Land Agency Ltd, Civil Reference 11 of 1999, Court of Appeal of Tanzania at Dar es Salaam (2001) (unreported). The case of ABSA Bank Tanzania Limited and Another vs Hjordis Fammestad (Civil Application No. 695/16 of 2022) [2024] TZCA 246 relied on by the respondents is equally to the same effect. [7] In the instant application, the second paragraph of the respondents’ joint counter-affidavit is clear that the deponent, one Asangye Nicholaus Bangu, a principal officer of the eighth respondent deponed on behalf of other respondents after being duly authorised. The same position pertains to the respondents’ joint statement. None of the respondents disowned the joint statement or the joint counter-affidavit. Even more is that the applicants’ cause of action rests on facts affecting all the respondents and the joint statement and counter-affidavit aims to prevent multiplicity and fragmentation of the respondent’s defence. For these reasons, I hold that the complaint is quite misguided. [8] Again, the respondents in their amended joint counter-affidavit raise two further points in limine. The first point is in paragraph 17 of the joint counter-affidavit where the respondents challenge the validity of the leave granted ex parte by this Court enabling the applicants to file the present application. The respondents’ complaint is that the application for leave was granted contrary to the law because it was heard in 9 the absence of the Attorney General. Yet the respondents did not elaborate this contention in their arguments. The applicants pointed out that the application for leave was heard and determined according to the law in terms of the provisions of Regulation 5(2) and 7 (1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules, GN No 324 of 2014. [9] Regulation 5(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules directs that the application for leave be made ex parte to a judge in chambers. Whether the respondents’ complaint constitutes a collateral attack on Rule 5 (2) is unclear to me. I am nevertheless satisfied that I cannot make a finding on this question at this juncture. Besides, the validity of the application for leave cannot be challenged before this Court. While the respondents can in this main application for judicial review challenge the merits of the application and this Court is legally empowered to dismiss the application, if so convinced, even though leave was granted; this Court is functus officio to question the legality of the leave granted. The applicants’ contended as much. [10] The second point is in regard to the exhaustion of “all local remedies” before applying for judicial review. This contention, appearing in paragraph 16 of the respondents’ joint affidavit imports the terminology “local remedies” frequently used in relation to international law, undoubtedly refers to the expression “alternative remedies” in administrative law. Owing to the nature of the complaints in this application before this Court, I will deal with this objection in this ruling (see paragraphs 63-65; 104-110). 10 [11] The Business Guideline on chickpeas, pigeon peas, soy beans, and sesame seeds was issued by the Cereals and other Produce Regulatory Authority (COPRA), (the tenth respondent), Tanzania Cooperative Development Commission (TCDC) (the seventh respondent), Warehouse Receipts Regulatory Board (WRRB) (the eighth respondent), and the Tanzania Mercantile Exchange (TMX), (the ninth respondent). [12] I agree with the respondents that the Business Guideline has nothing to do with sunflowers. The applicants conceded as much in their arguments. [13] I now turn to consider the merits of the application. The applicants’ complaints range from denial of the right to be heard, violation of the constitutional right to freedom of association, unreasonableness, illegality, discrimination and bias. In order to grasp the nature of the applicants’ grievances, it is important to examine the scope of the Business Guideline and the context it is designed to operate. [14] The Business Guideline, as correctly argued by the respondents, is designed to implement a “warehouse receipt system.” [15] It is clear that the warehouse receipt system involves farmers depositing agricultural commodities in exchange for a “warehouse receipt”. The receipt can guarantee quality of agricultural commodities and function as a defence against price fluctuations enabling farmers to wait for market prices to improve before selling their agricultural commodities. The system may operate as a collateral for loans based on the market value of their products. There is a complex statutory framework of the warehouse receipt system in Tanzania. To begin with, there is the Warehouse Receipts 11 Act [Cap. 339 R.E. 2016] and the Warehouse Receipts Regulations, GN No. 109 of 2016. This legislation creates the legal framework for warehouses for agricultural and non-agricultural commodities. It entrusts management of warehouses and their licensing to the WRRB (the eighth respondent). [16] A warehouse receipt issued by a warehouse operator to a depositor upon storage, handling or shipment of the commodity, is in terms of section 70A (1) transferrable through a trading platform operating under the Commodity Exchanges Act, Act No. 19 of 2015. [17] The statutory linkage of the agricultural commodities, the subject matter of the present application, is to be found under the provisions of the Cereals and Other Produce Act, No 19 of 2009 and the Food Security Act, Cap. 249 as amended in 2009 by the first-mentioned Act. The 2009 Act aims at the “promotion and development of cereals and other agricultural produce” and establishes the Cereals and Other Produce Board of Tanzania (the sixth respondent). The Board has commercial functions aiming at “advantageous or proper development” of cereals and other produce. [18] The Food Security Act, Cap 249 establishes among other things, the Cereals and other Produce Regulatory Authority (COPRA), the tenth respondent in this case. The regulatory functions of COPRA are partly enacted under section 4 (2) of the Food Security Act as amended in 2009. Parts of its regulatory functions are to: 1. “ensure fair competition, fair trade, and to set and monitor indicative prices” [section 4(2) (b)]; 12 2. create regulations for “cultivation, marketing, processing importation, exportation and storage of the cereals and other produce” [section 4 (2) (e)]; 3. register growers, dealers, and premises relating to cereals and other produce [section 4(2) (f)]. The implementation of this function entails mandatory registration of traders, processors, or warehouse owners or operators by COPRA (section 14) as well as licensing of dealers in buying, selling, exporting and importing, and processing cereals and other produce. (Section 19(1)]. Sections 19 (4) and (5) and 20 further criminalises buying, processing, operating a warehouse, importation, exporting cereals and other produce, on a commercial basis without COPRA’s licence; 4. “inspect or cause to be inspected the farms, grains, premises and other facilities for the cereals and other produce” [ (section 4 (2) (g)]; 5. “to issue import and export permits for the cereals and other produce” [section 4 (2) (h)]; and 6. “regulate or to control the collection, movement, storage, sale, purchase, transportation, marketing, processing, distribution, importation, exportation, disposal and supply of cereal and other produces” [section 4(2) (i)]. [19] The Preface to the Business Guideline states that it has been issued pursuant to the provisions of the Food Security Act, Cap. 249; Cooperative Societies Act, No. 6 of 2013; the Cooperative Societies Regulations, GN. No. 272 of 2015; Warehouse Receipts Act [Cap. 339 R.E. 2016]; Warehouse Receipts Regulations, GN No. 109 of 2016; and the Commodities Exchanges Act, 19 of 2015. Is there anything in these statutes expressly authorising creation of guidelines on the business of cereals and 13 other produce? I have examined each of these pieces of legislation and discovered that it is only section 91 of the Commodities Exchanges Act that authorises creation of administrative rules in the nature of “codes, guidelines, regulatory or policy statements.” The purpose of Commodity Exchanges Act is commodity exchange. In respect of the remaining statutes, there is no express power to create guidelines. There is only express authority to create regulations. [20] Section 4(2) (e) of the Food Security Act, Cap. 249 authorises COPRA to make “regulations for cultivation, marketing, processing, importation, exportation of cereals and other produce.” In view of section 4(2) (i), mandating COPRA to “regulate” and “control”, COPRA may create regulations extending to “movement, storage, sale and purchase” of cereals and other produce. Again, the Minister responsible for agriculture may make regulations for various purposes under different provisions of the Food Security Act. Under section 42 (2) (d) the Minister may make regulations to: direct or prohibit the movement of cereals or other produce within or outside the country, either generally or in specified circumstances and subject to any conditions which may be specified; [21] From these provisions COPRA has legal authority to make “regulations” to regulate business of cereals and other produce. The WRRB has authority to make regulations under section 79 of the Warehouse Receipts Act. There are currently Warehouse Receipts Regulations, GN No. 109 of 2016. [22] Section 40 of the Food Security Act envisages making of orders or directions by the Minister responsible for agriculture or COPRA that need not be gazetted but to be 14 brought to the attention of affected persons or persons likely to be affected. I read nothing in this provision conferring implicit authority to make binding administrative rules. [23] Section 91 of the Commodities Exchanges Act allows the Capital Markets and Securities Authority to create administrative rules. It states that: (1) The Authority may issue such codes, guidelines or regulatory or policy statements as it considers appropriate for providing guidance- (a) in relation to any of its regulatory objectives under this Act; (b) in relation to any matter relating to any of the functions of the Authority under this Act; (c) In relation to the operation of any provision of this Act (2) The Authority may publish codes and guidelines in such manner as it deems fit. [24] In connection with the instant case, the administrative rules under section 91 are concerned with the trade platforms for warehouse receipts in accordance with section 70A of the Warehouse Receipts Act. [25] From the account given above, the Business Guideline has been created against a background of constitutional and statutory regimes envisaging “regulations” and the immediate question is its legal status as to warrant intervention by way of judicial review. Guidelines form part of what are variously referred to as “administrative rules”, “informal rules”, “directions”, “administrative quasi-legislation,” tertiary legislation” and these are increasingly referred to as “soft law” (Turpin, C and Tomkins, A., British 15 Government and the Constitution: Text and Materials, 7th edn, New Cambridge University Press, 2011,pp. 496-502; Craig, P., Administrative Law, 9th edn, London: Sweet and Maxwell, 2021, paragraphs 15-040 to 15-042; and Khan, SA, MP Jain and SN Jain: Principles of Administrative Law, 7th edn, Vol.1, Nagpur: Lexis Nexis Butterworths, 2011, pp. 247-310). [26] In MP Jain and SN Jain: Principles of Administrative Law, administrative rules are referred to as “directions” and they are distinguished from subordinate legislation (at p. 248) in these terms: …One basic difference between the two is that while delegated legislation is issued only when the concerned authority has statutory power to do so… statutory power is not the sine qua non for issuing directions. Directions are usually issued under general administrative power of the government and not under its legislative power...The power to issue directions is now regarded as being inherent in the administrative power. But cases are not wanting where statutory power is also conferred on an authority to issue directions…Another difference is that while a rule can override a direction, a direction cannot override a rule. Since a direction cannot amend a rule, a direction, from this point of view, occupies a secondary place in relation to a rule. Another basic distinguishing feature between a direction and delegated legislation is that while the latter is binding on both the individual as well as the Administration, and is legally enforceable against each at the instance of either the Administration or the individual, a direction, generally speaking, may not always be regarded as enforceable... An administrative act must yield to a statute is no longer res integra. Administrative instruction cannot override the provisions of the Act… 16 [27] There is an increasing consensus that public authorities may create different sets of administrative rules to “interpret” or “apply” primary legislation, or to “guide” their administrative discretion in the absence of a specific statutory authority provided that they do not fetter their discretion (British Oxygen Ltd v Minister of Technology [1970] 3 ALL ER 165; Pezim v British Columbia (Superintendent of Brokers) [1994] 2 SCR 557 at 596 and Surinder Singh v Central Government AIR 1986 SC 2166; and (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23). Recognising public authorities’ power to regulate their discretion without fettering it, Lord Reid observed in the landmark case of British Oxygen Ltd [at pp. 169-170]: …The general rule is that anyone who has to exercise a statutory discretion must not ‘shut [his] ears to the application’ (to quote from Bankes LJ ([1919] 1 KB at 183)). I do not think that there is any great difference between a policy and a rule. There may be cases where an officer or authority ought to listen to a substantial argument reasonably presented urging a change of policy. What the authority must not do is to refuse to listen at all. But a Ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that provided the authority is always willing to listen to anyone with something new to say—of course I do not mean to say that there need be an oral hearing. In the present case the Minister’s officers have carefully considered all that the appellants have had to say and I have no doubt that they will continue to do so. The Minister might at any time change his mind… 17 Lord Clyde in R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions and Other Cases [2001] 2 All ER 929 at p. 998, paragraph 143 reaffirmed the use of administrative rules provided that they remain flexible and do not fetter discretion: …The formulation of policies is a perfectly proper course for the provision of guidance in the exercise of an administrative discretion. Indeed policies are an essential element in securing the coherent and consistent performance of administrative functions. There are advantages both to the public and the administrators in having such policies. Of course there are limits to be observed in the way policies are applied. Blanket decisions which leave no room for particular circumstances may be unreasonable. What is crucial is that the policy must not fetter the exercise of the discretion. The particular circumstances always require to be considered. Provided that the policy is not regarded as binding and the authority still retains a free exercise of discretion the policy may serve the useful purpose of giving a reasonable guidance both to applicants and decision-makers. Nor is this a point which can be made solely in relation to the Secretary of State. In a variety of administrative functions, in addition to planning, local authorities may devise and implement policies of their own. [28] Also established is a principle that in the absence of subordinate legislation authorised by a statute, a public authority may still function under the statute by issuing administrative rules pending issuance of the regulations (Surrinder Singh v Central Government 1986 AIR 2166; 1986 SCR (3) 946). From this legal background, I am satisfied that there was no legal bar to issue the Business Guideline. [29] The next question for consideration is the legal status of the Business Guideline. The significance of this question is that unless the administrative rules, like the instant 18 Business Guideline are binding, there is no foundation for application of judicial review. The exercise of judicial review of administrative rules do not arise unless a public authority intends to accord them a binding force. This legal position is summed up in Mullan, D., Administrative Law, Toronto: Irwin Law, 2001, at p. 140: while …courts have long sustained, even encouraged, the issuance of informal policies and guidelines by various agencies of government, they do not concede to them the status of law. Moreover, particularly in the domain of substance (as opposed to procedure) … any agency that follows such guidelines slavishly or attributes to them the force of law exposes the relevant decision to review for abuse of discretion in general, and a wrongful fettering of discretion in particular. [30] The case for both parties is premised on the assumption that the Business Guideline has the force of law and is binding. It is the applicants’ case that the Business Guideline has been enforced against them to their detriment while the respondents maintain that it was prepared in accordance with the law. [31] A close examination of the Business Guideline suggests that it is intended to be binding. First, it sets out detailed and precise directions on storage, transportation and auction of chickpeas, pigeon peas, soy beans, and sesame seeds at warehouses operated by cooperative societies. The Business Guideline is divided into three parts. The first paragraph, 1.0 of the first Part of the Business Guideline reaffirms COPRA’s role in managing market for cereals and other produce and designs two systems for collection of chickpeas, pigeon peas, soy beans, and sesame seeds. Guideline 1.1 directs farmers to deposit chickpeas, pigeon peas, soy beans, and sesame seeds at 19 warehouses operated by primary agricultural societies. For easy reference I reproduce the contents of the Guideline 1.1: 1.1. Ukusanyaji Ngazi ya Chama cha Msingi Katika kutekeleza mfumo waweka mali (Wakulima) katika ngazi ya chama cha msingi watatakiwa kuzingatia masuala yafuatayo:- i. Kila mkulima mwenye dengu, mbaazi, soya na ufuta kwa ajili ya kuuza atapeleka katika ghala la Chama cha Msingi akiwa amezipanga kwenye madaraja yanayotambulika kwa mujibu wa mwongozo huu ambayo yametajwa Kipengele 1.2.2 (ii) A na (B); ii. Chama cha Ushirika cha Msingi kitahakikisha kuwa mzani unaotumika kupimia dengu, mbaazi, soya na ufuta ghalani ni wa kidigitali na umekaguliwa na Wakala wa Vipimo Tanzania (WMA) kabla ya kuanza kwa msimu. iii. Chama cha Ushirika cha Msingi kitapokea dengu, mbaazi, soya na ufuta kutoka kwa wakulima na kuhakiki ubora; kabla ya kuzipima uzito na kuziweka katika viroba vipya yenye viwango vya ubora vilivyothibitishwa na Shirika la Viwango Tanzania (TBS); iv. Chama cha Ushirika cha Msingi kitampatia mkulima stakabadhi ya mapokezi ya zao lake ghalani ikiwa na taarifa za muhimu za mkulima kama vile jina kamili, tarehe ya kupima, idadi ya vifungashio, uzito, nambari ya akaunti pamoja na namba ya simu; v. Chama cha Ushirika cha Msingi kitahakikisha kuwa wanachama wake wanapata mafunzo ya msingi ya usimamizi wa ubora ikiwemo uvundikaji, uanikaji, usafi, kupima unyevu na ufungashaji; vi. Chama cha Ushirika cha Msingi kitahakikisha kuwa uzito halisi wa dengu, mbaazi, soya na ufuta ni kilo 50 kwa kila kifungashio kabla ya kupeleka kwenye ghala la mnada; vii. Chama cha Ushirika cha Msingi kitaandika namba ya utambulisho wa namba ya chama kikuu husika, namba ya usajili wa chama cha ushirika cha msingi na kutumia rangi za maandishi zilizochaguliwa na chama kikuu husika. 20 viii. Chama cha Ushirika cha Msingi kitapeleka dengu, mbaazi, soya na ufuta za wakulima wake kwenye ghala la mnada lililosajiliwa na Bodi ya Usimamizi wa Stakabadhi za Ghala kwa ajili ya mauzo. ix. Chama cha Msingi kitasafirisha dengu, mbaazi, soya na ufuta za wakulima kwenda ghala la mnada kwa kutumia PDN ya Chama cha Ushirika cha Msingi ikiambatana na Fomu ya orodha ya wakulima iliyojazwa kikamilifu ya wamiliki husika ikiwa katika nakala nne; nakala ya kwanza ipelekwe kwa Afisa Ushirika Msimamizi wa ghala husika, nakala ya pili Chama kikuu husika, nakala ya tatu ipelekwe kwa Mtunza Ghala la mnada na nakala ya nne ibaki katika Chama cha Msingi chenyewe; x. Gharama za kusafirisha dengu, mbaazi, soya na ufuta zitakuwa sawa na gharama zilizopangwa katika mjengeko wa bei na kupitishwa na mkutano wa wadau wa zao la dengu, mbaazi, soya na ufuta. [32] Except for the Guideline 1.1. (x), the rest of the Guideline introduces directions to farmers and primary cooperative societies in connection with depositing of the specified agricultural commodities, storage and their transportation to auction warehouses. This part of the Guideline relates to farmers and cooperative societies and other stakeholders mentioned only in relation to transportation costs to be agreed upon at stakeholders’ meetings. [33] Guideline 1.2 details the procedure for collection of the specified agricultural commodities at main warehouses licensed by the WRRB. It is the responsibility of the central cooperative societies to sort out the needs for the main warehouses in coordination with regional and district administration. This is according to Guideline 1.2. 1. 5. Guideline 1.2.2 establishes the quality control in the collection of the specified 21 agricultural commodities eligible for storage in main warehouses and Guideline 1.2.3 provides for the management of the main warehouse in relation to the specified agricultural commodities. Guideline 1.3 notes that under section 70 A (1) of the Warehouse Receipts Act commodities in the warehouse receipt system are to be exchanged through Tanzania Mercantile Exchange Act and details the auction process. Lastly, the first part reiterates the functions of the regional and district supervisory committees of the Warehouse Receipts Systems. These Committees are established under section 6 (3) of the Warehouse Receipts Act. [34] The second part of the Business Guideline outlines the roles of COPRA, TCDC, WRRB, and TMX, district authorities and regional secretariats in the management of the Warehouse Receipts System. [35] Secondly, the Business Guideline is not simply an internal tool for management. It is directed to farmers and cooperative societies and reiterates statutory functions of COPRA, WRRB, TCDC, TMX as well as regional and local leaders in the management of the business of the specified agricultural commodities. [36] The third aspect in determining the bindingness of a guideline is its coerciveness. The Business Guideline formalises the business of the specified agricultural commodities and specifically directs district authorities to control haphazard and informal business of the specified agricultural commodities. The third part is the last one and deals with miscellaneous matters consisting of dispute resolution machinery, and various costs and charges. 22 [37] Having arrived at the conclusion that the Business Guideline is intended to be binding on stakeholders, one must be satisfied that it does not infringe interests and rights of stakeholders. As frequently commented on in academic literature and judicial decisions, administrative rules overlook consultation and parliamentary scrutiny and so breach of their provisions does not necessarily give rise to legal proceedings (See paragraphs 51-55) [38] In any case administrative rules must be consistent with the parent Act and their contents will be found to be unlawful under any of the following three factors articulated by the Supreme Court of the United Kingdom in R (A) v Secretary of State for the Home Department [2021] UKSC 37 at paragraph 46: …(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way…; (ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and (iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position…. [39] In the instant application, the Business Guideline provides a framework for storage, transportation and auction of agricultural commodities. These functions emanate directly from the statutory powers of COPRA, WRRB, TMX, and indirectly the 23 TCDC and local government authorities. Both the Cereals and Other Produce Act and the Food Security Act recognise “stakeholders” in the management of cereals and other produce. The expression “stakeholder” is defined under section 3 of the former Act to mean: a dealer in the specified crop industry such as the central Government, local government authorities, cooperative societies, the Board, research and training institutes, traders and input suppliers, producers and other private actors in cereals and other produce. [40] Section 5 (1) of the Cereals and other Produce Act stipulates that the Board is composed of the Chairman and two other members, seven of whom are drawn from Cereals and Other Produce Zonal Councils established under section 15 (1) and (2). These Councils are mandated under section 16 (2) (a) to conduct annual stakeholder’s zonal meetings. A similar definition of the expression “stakeholder” is to be found under section 2 of the Food Security Act. [41] It is evident from both statutory definitions that cooperative societies are among the stakeholders in the management of cereals and other produce. Cooperative societies are re-established under the Cooperative Societies Act, 2013 and they include agricultural societies. They are regulated by the Tanzania Development Cooperative Commission (the seventh respondent in this case). As mentioned at paragraphs 31-32, the Business Guideline confers storage function of the specified commodities to cooperative societies. 24 [42] I think at this stage, I am in a better position to deal with the applicants’ major complaint in connection with the denial of the right to hearing during the preparation of the Business Guideline. This complaint is closely related to another complaint that the Guideline violates their constitutional right to freedom of association. It is the applicants’ contention that the respondents’ have denied them the right to be heard in agreeing to price and payment terms for the agricultural commodities listed in the Guideline. Their further complaint is that they have not been “accorded equal and fair opportunities as citizens to be able to trade their crop produce….in the open market and in a manner they personally deem fit and desirable.” The second complaint is that the Guideline is ultra vires the constitutional right to freedom of association in so far as it compels the applicants to be “members of Agricultural and Marketing Cooperative Societies (AMCOS) and Cooperative Societies.” They point out that they are not members of “Agricultural and Marketing Cooperative Societies and Cooperative Societies” and “have no interest to become members” but the Guideline compels them to trade the specified crops through Cooperative Societies and indirectly treat them as members of cooperative societies. The applicants lament that it is unfair to restrict collection of the specified agricultural commodities to warehouses owned by cooperative societies. [43] These complaints have been vigorously opposed by the respondents. They refuted any violation of the right to be heard and pleaded that there was due consultation and participation through local authorities by engaging all key stakeholders. In their defence, the respondents provided to the Court annexure OSG-1 25 to prove that consultations and participations took place when the Business Guideline was being prepared. The applicants argued that OSG-1 is not evidence that they were involved in the preparation of the Guideline as it is clear from the annexure that “only AMCOS members/farmers were consulted.” Whatever the case, the respondents added that in judicial review the Court is not called upon to review evidence. The fact that there is some evidence to be reviewed strongly suggests that the instant application has been lodged as an alternative to appeal and is not fit for judicial review. As the applicants have an alternative remedy of appeal, it is at the discretion of this Court to deny the remedies sought. The applicants disagreed and argued the case is apt for judicial review and has not been filed prematurely. [44] The respondents pleaded that the applicants have never been compelled to sell their crops as such or to become members of Cooperative Societies. The respondents maintained that the Business Guideline implements the warehouse receipt system by designating collection centres for the specified crops for sale through auction conducted by the TMX. They reasoned that the Guideline should be considered in light of the overall functions of COPRA by paying particular regard to the provisions of subsections (1), (2) (e) and (i) of section 4 of the Cereals and Other Produce Act, 2009. [45] There is no doubt from the Business Guideline itself, parties’ pleadings and submissions to this Court that the specified agricultural commodities are to be deposited at warehouses owned or operated by cooperative societies. Part of the respondents’ defence is that Cooperatives Societies and Agricultural and Marketing Cooperative Societies are simply collection centres for aggregation purposes and auction is to be 26 done through the TMX online platform. As already mentioned at paragraph. 41, cooperative societies are among stakeholders in the management of the cereals and other produce. It is common knowledge that cooperative societies are voluntary societies. The respondents concede as much and make reference to paragraph 3 (a) of the Second Schedule to the Cooperative Societies Act. The gist of the respondents’ contention is that while the Business Guideline designates warehouses operated or owned by cooperative societies, it does not compel the applicants to be members of the Agricultural and Marketing Cooperative Societies. The applicants disagreed and complained that this is an indirect way of forcing them to be members of those societies as they were never consulted in the first place. [46] It is at once clear that the Business Guideline is restrictive in so far as it confines the operation of the warehouse receipts system through cooperative societies. Section 3 of the Warehouse Receipts Act defines a “warehouse” as “any building, structure, or other protected enclosure approved by the Board to be used or usable, for the storage or conditioning of commodities or buildings used in relation thereof or including operation of the warehouse”. And according to that section 3, a “warehouse operator” means any person operating a warehouse. Regulation 3 of the Warehouse Receipts Regulations No 109 of 2016 defines a “warehouse owner” as “a holder or proprietor of a building, structure or other protected enclosure” recognized by the Warehouse Receipts Regulatory Board (the eighth respondent). It is clear from the Warehouse Receipts Act that various persons may own or operate warehouses provided that they comply with the law. Equally clear from the Act is its recognition of different persons as 27 depositors that who may or may not be members of cooperative societies. Section 3 defines the expression “depositor” as: any person who deposits a commodity in a warehouse for storage, handling or shipment, or who is the owner or legal holder of an outstanding warehouse receipt, or who is lawfully entitled to possession of the commodity. [47] Given that the definition of the term “commodity” under section 3 of that Act encompasses “agricultural and non-agricultural commodities,” farmers are among persons who can deposit their agricultural commodities. Section 83 clearly stipulates that farmers cannot be compelled to deposit commodities in warehouses. It is part of the applicants’ complaint that the Business Guideline wrongly obliges them to deposit agricultural commodities in warehouses but the respondents submit that the Guideline embraces the “spirit of Section 83.” [48] So long as the statutory framework does not confine depositing cereals and other produce to a specific warehouse, there must be consent from stakeholders to use designated warehouses. Unless there is consent from stakeholders to use warehouses of cooperative societies, any attempt to do so through a business guideline is a misrepresentation of the true legal position and is inconsistent with the enabling Acts. A cooperative society is a voluntary association with its own legal framework and a decision to use its warehouses for the specified agricultural commodities must be consented to by both members and non-members. Without consent from stakeholders, the directions in the Business Guideline would amount to an abuse of discretion. 28 [49] Introduced by section 26 of the Warehouse Receipts (Amendment) Act 3 of 2015, section 83 stipulates that farmers are at liberty not to deposit agricultural commodities at warehouses. It is not illegal for farmers to deposit agricultural commodities in warehouses but it is illegal to compel them to make the deposit. The import of this provision is that farmers may consent to deposit agricultural commodities in the warehouse and any attempt to force them to deposit commodities in the warehouses is illegal. [50] Once it is clear that the Business Guideline confines the operation of the warehouse receipts system through cooperative societies, there is an error of law unless the respondents establish all stakeholders’ consent to the restriction of the wide statutory discretion to use different warehouses. As previously stated in paragraph 43, the respondents’ reply is two-pronged. They argue that the applicants were duly consulted and they attached OSG-1 as a proof of the applicants’ involvement in the preparation of the Guideline. Presumedly, in the alternative, the respondents contend that review of evidence is not appropriate for judicial review. The applicants’ argument is that the Guideline contravenes statutory provisions by introducing mandatory deposit of agricultural commodities and thus raises questions of law and not fact. [51] In dealing with the issue of consultation vis-à-vis the applicants’ right to be heard and the respondents’ contentions that this complaint is appropriate for appeals and not judicial review, it is critical to bear in mind that the effectiveness of administrative rules depend on the willingness of parties to comply with their directives. Administrative rules can be removed or altered at will and cannot operate as an absolute bar to 29 administrative discretion (Thamotharem v Canada (Minister of Citizenship and Immigration (F.C.) [2008] 1 FCR 385 at p. 415, paragraph 66). Generally, administrative rules do not confer enforceable right on a person and cannot authorise infringement of rights and interests although they may give rise to legitimate expectation. [52] The realisation that public authorities may establish administrative rules without any specific statutory authority gives rise to the question regarding their bindingness. Administrative rules bind their makers by creating legitimate expectation in favour of those to whom they are directed (R (Kambadzi) v Secretary for the Home Department [2011] 1 WLR 1299). Administrative rules create legitimate expectation that must be respected by public authorities unless the obligation created by the administrative rules are inconsistent with their statutory duty. This clarification is to be found in Attorney General of Hong Kong v Ng Yean Shiu [1983] 2 ALL E.R. 346 at 350: …when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty… [53] Generally, binding administrative rules are issued pursuant to an explicit statutory authority or when the public authority considers them to be binding [Daly, P., “How binding are binding guidelines? An Analytical framework” (2023) 66 Canadian Public Administration, pp. 211-229]. Whenever an administrative rule purports to bind interested parties, it must have legislative support as reiterated by the Supreme Court of Canada in Greater Vancouver Transportation Authority v Canadian Federation of 30 Students—British Columbia Component [2009] 2 SCR 295, p. 329 at paragraphs 64 and 65: Where a policy is not administrative in nature, it may be “law” provided that it meets certain requirements. In order to be legislative in nature, the policy must establish a norm or standard of general application that has been enacted by a government entity pursuant to a rule-making authority. A rule-making authority will exist if Parliament or a provincial legislature has delegated power to the government entity for the specific purpose of enacting binding rules of general application which establish the rights and obligations of the individuals to whom they apply…So long as the enabling legislation allows the entity to adopt binding rules, and so long as the rules establish rights and obligations of general rather than specific application and are sufficiently accessible and precise, they will qualify as “law” …. Thus, where a government policy is authorized by statute and sets out a general norm or standard that is meant to be binding and is sufficiently accessible and precise, the policy is legislative in nature … [54] Without legislative support and compliance with normal publicity rules administrative rules have no legal force unless interested parties’ consent to them. As frequently commented on in academic literature, administrative rules are likely to impinge upon the constitutional principles of separation of powers and legality, and courts should be careful before enforcing them. These rules tend to overlook parliamentary scrutiny and public hearings, they may poorly fit with parent Acts, and are unpublished and so not readily accessible. While public authorities tend to honour administrative rules, those rules may undermine the integrity of public administration and the rule of law. (See Craig, P., Administrative Law, 9th edn, paras 15-043; Weeks, 31 G., “Soft Law and Public Liability: Beyond the Separation of Powers” (2018) 39 Adelaide Law Review 303-330; Sossin, L. “Hard Choices and Soft Law: Ethical Codes, Policy Guidelines and the Role of the Courts in Regulating Government” (2003) Alberta Law Review 867-893. [55] These concerns have been rehearsed by Streatfield J in Patchett v Leatham (1949) 65 T.L.R. 69 at 70 and dubbed them as “four curses”: Whereas ordinary legislation, by passing through both Houses of Parliament or, at least, lying on the table of both Houses, is thus twice blessed, this type of so-called legislation is at least four times cursed. First, it has seen neither House of Parliament; secondly, it is unpublished and is inaccessible even to those whose valuable rights of property may be affected; thirdly, it is a jumble of provisions, legislative, administrative or directive in character, and sometimes difficult to disentangle one from the other; and, fourthly, it is expressed not in the precise language of an Act of Parliament or an Order in Council but in the more colloquial language of correspondence, which is not always susceptible of the ordinary canons of construction. [56] Consultation of interested parties is one of the procedural safeguards against the dangers posed by administrative rules. Consultation serves different purposes as restated by Foulkes, D., Administrative Law, 7th edn, London: Butterworths, 1990, at pp. 123-124: …The purpose of consultation is to give those affected by the proposed action an opportunity to put their case; or where they have some special knowledge, experience or expertise, to ensure that it is put at the disposal of the authority; or both. It should ensure that the authority does not overlook 32 matters it ought to have regard to. The resultant decision should be ‘better’ than it would otherwise have been: ‘better’ in such senses as being more effective, relevant, practical, and acceptable to those affected. An intention is to benefit the consulter; an effect may be to educate the consulted in the problem facing the consulter…. [57] Consultation of parties is a fundamental aspect of good public administration that effectuates the constitutional spirit of public participation in government affairs [Article 8 (1) (d)] of the Constitution]. This feature of consultation is elaborated by Laski, H.J., Liberty in the Modern State, New York and London: Harper and Brothers, 1930, [at pp. 61-62]: …The process of being consulted gives …[a citizen] a sense of being significant in the state. It makes him feel that he is more than the mere recipient of orders. He realizes that the state exists for his ends and not for its own. He comes to see that his needs will be met only as he contributes his instructed judgment to the experience out of which decisions are compounded. He gains the expectation of being consulted, the sense that he must form an opinion on public affairs…. [58] In this jurisdiction the issue of consultation of affected parties came for consideration before a full bench of the High Court in Ezekiah Thom Oluoch v the Minister of State, Office of the Vice President, Union Affairs and Environment and Another, Miscellaneous Civil Cause 20 of 2016.The petitioner, Ezekiah Thom Oluoch, who was an active member and believer of the Seventh Day Adventist Church (the SDA Church), challenged the constitutionality of the Environmental Management (Designation of National Cleanliness Day) Guidelines, G.N. No 139 of 2016. The petitioner’s complaint was that by designating the Saturday of the last of week of every 33 month as a National Cleanliness Day, the Guidelines infringed the petitioner’s right to enjoyment of his freedom of religion, conscience, belief, faith under Article 19 of the Constitution. The full bench ruled that under these circumstances, the petitioner or any other member of the SDA could not comply with the Guidelines on a Saturday without compromising his or her beliefs. The full bench added that even if the Guidelines were made for the public good, their constitutionality rests on their reasonableness, proportionality and without being arbitrary. The full bench concluded that the three conditions for the constitutionality of the Guidelines were not satisfied on account of lack of consultation: …Contrary to the Respondents’ submissions, there is no evidence of any consultation from members of the SDA church who are likely to be affected by the Guidelines as it were. The attempt by the Respondents claiming that there were such consultations remains to be an assertion which is not sufficient to discharge the burden of proof cast on the Respondents. In the absence of consultation, the Guidelines has not passed the test of arbitrariness. Likewise, we take note the fact that according to the Guidelines, a person who fails to comply with them risks penalties in accordance with the provisions of the Environmental Management Act and rules made thereunder. That negates any claim that the Guidelines are not unreasonable and disproportionate to any claim of state interest. Since the Respondents have not discharged that burden and thus we are left with no other option than upholding as we do the Petitioner’s claim. That answers the issue that the designation of the Saturday a Sabbath for members SDA church during the last week of every month as national cleanliness day is violative of the Constitution as it curtails the right to enjoyment of religion guaranteed under Article 19 (1) of the Constitution to the extent it relates to the Petitioner. 34 [59] One of the propositions from Ezekiah’s case is that lack of consultation of interested parties in delegated law is likely to result in unreasonable, disproportionate and arbitrary regulations. While Ezekiah’s case considered unreasonableness, proportionality and arbitrariness in a constitutional context, these are well-established grounds of judicial review encompassing failure and abuse of discretion. [60] For these reasons, in Ndalamia Partareto Taiwap and Four Others v Minister of Natural Resources and Tourism and Another (Miscellaneous Civil Cause No. 21 of 2022) [2023] TZHC 21407, the minister overlooked the statutory duty to consult under section 16 (1) of the Wildlife Conservation Act, 2009 and the High Court quashed the government notice introducing the Paloleti Game-Controlled Area. [61] The statutory framework of agricultural commodities recognizes key stakeholders in that industry in a manner that unreservedly creates expectation that stakeholders are to be consulted in the implementation of the warehouse receipts system. Both the Cereals and Other Produce Act and the Food Security Act identify different stakeholders in the cereals and other produce and section 16 (2) of the former Act speaks about annual stakeholder’s zonal meetings. Both Act speak of “shared functions” between stakeholders, and the Cereals and Other Produce Board and COPRA. By taking on board stakeholders and defining shared functions in sections 3 and 2 in both statutes respectively, the legislature gives great credence to stakeholders’ participation in the management of cereals and other produce. It follows that consultation of stakeholders is a condition precedent to the decision-making of the regulatory authorities in the warehouse receipts system. 35 [62] Having established that there was a statutory duty to consult stakeholders, the next question is if the applicants are among the stakeholders to be consulted. The applicants averred that they are small and medium scale farmers, traders and transporters of different agricultural commodities including sunflower, chickpeas, pigeon peas, soy beans and sesame seeds. Under the statutory definitions of the terms “dealer” and “stakeholder” in the Cereals and Other Produce Act and the Food Security Act they are part of the stakeholders. [63] Were the applicants consulted? As stated above, the respondents argued in the alternative that the response to this question is one of fact, subject of appeal and not judicial review (See paragraphs 43 and 50). The respondents maintained that no issue of appeal arises and in case there is no judicial decision involving the applicants and the respondents meriting an appeal. The issue of existence of an alternative remedy for the applicants will be considered later in this ruling (See paragraphs 104-106.). At this juncture I will deal with the respondents’ alternative contention that calls into question two rules. The first rule relates to evaluation or review of evidence. In support of this contention the respondents sought to rely on the proposition in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155 at 1160 that courts should not substitute their opinions for those of public authorities. The second rule impinges upon the “no-evidence” rule applicable where a public authority acted without evidence. Such decisions are ultra vires as irrational or perverse. (Osgood v Nelson (1872) L.R. 5 H.L. 636; R. v Attorney General Ex p. Imperial Chemical Industries Plc (1986) 60 Tax Cas. 1; R. v Birmingham City Council Ex p. Sheptonhurst Ltd [1990] | All E.R. 1026). 36 [64] The common law-rule on “no evidence”, as summed up in Wade, H.W.R. and Forsyth, C., Administrative Law, 11th edn, Oxford: Oxford University Press, 2014, p. 227 rests on distinction between judicial review of facts and re-evaluation of evidence: It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly…. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene. ‘No evidence’ does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding...or where, in other words, no tribunal could reasonably reach that conclusion on that evidence… This ‘no evidence’ principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires…It also has some affinity with the substantial evidence rule of American law, which requires that findings be supported by substantial evidence on the record as a whole... [65] Absence or existence of evidence is a question of law for consideration in judicial review and the respondents clearly conflated sufficiency of evidence and absence of evidence. The question before me is whether there is evidence to conclude that the applicants were consulted. [66] I have closely examined annexture OSG1 to the respondents’ joint statement in reply. First, the annexure consists of the unsigned training reports on the implementation of the warehouse receipts system conducted between 13 and 30 March 2023 in Manyara Region. There are no clear and formal lists of participants. Secondly, 37 there is a covering letter of 3 October 2023 and minutes of stakeholders meeting of 29 September 2023 at Hanang’ District where a trader and several farmers participated. Thirdly, there is a covering letter of 25 June 2024 about the planned stakeholders meeting of 10 July 2024, handwritten lists of attendants to that meeting and the unsigned report of the meeting. From these reports and minutes, there is no sufficient evidence of participation of farmers, traders, and transporters from Manyara Region or Northern Zone so to speak. The Cereals and Other Produce Act, establishes seven agricultural zones (Section 15 (1) and (2) and designate them as: consultative forums for cereals and other produce on price negotiations between farmers and buyers or traders of the cereals and other produce (section 15 (3) (b). The Manyara Region together with Arusha, Kilimanjaro and Tanga Regions comprise the Northern Zone (section 15 (2) (c). The OSG1 contains nothing of substance pointing to effective consultation of the Northern zone as envisaged by the law. [67] Similarly, there are no resolutions from those trainings or meetings on the modality of the implementation of the warehouse receipts system. There is no evidence of clear engagement on the intention either to introduce a guideline or on the design of the business guideline already prepared. [68] On the contrary there is evidence suggesting involvement of several cooperative societies in Manyara Region in the trainings and meetings conducted by COPRA. They include RIVACU Ltd, Galapo AMCOS, Homari AMCOS, Bargish AMCOS, Didihama AMCOS, Narakauo AMCOS, and Matui AMCOS. 38 [69] There is nothing in the annexture explaining why collection or storage of the specified agricultural commodities was confined to warehouses of cooperative societies while there is no such restriction in the Warehouse Receipts Act. It suffices to say that the Business Guideline is largely directed to cooperative societies something that explain wide involvement of members from various cooperative societies in some meetings and trainings in Manyara Region conducted by representatives of COPRA, the tenth respondent. [70] The Business Guideline is designed to operate through cooperative societies and there is nothing from the Guideline suggesting its application to non-members of cooperative societies. Similarly, there is no evidence of effective consultations with non- members of cooperative societies to secure their consent to be bound by the Guidelines. As a result, the Guideline cannot be enforced against the applicants. The Guideline remains a voluntary instrument with regard to the applicants. The applicants are under no legal obligation to comply with it. [71] Assuming that the Business Guideline acquired the force of law and was applicable to the applicants, I would have declared the first part of the Guideline ultra vires the parent Act for purporting to introduce compulsory deposit of commodities by farmers who are non-members of cooperative societies contrary to section 83 of the Warehouse Receipts Act. Nonetheless, the facts before me point out that the Guideline apply to members of cooperative societies whether farmers or not and who are not parties to this application, I cannot fully determine the legality of the first part of the Guideline. 39 [72] It is the applicants’ prayer that the Court should issue the order of certiorari to quash the Business Guideline on account of its violation of the rules of natural justice, freedom of association, and ultra vires, and if any of the reliefs sought including certiorari are not granted the applicants stand to be prejudiced by suffering “gross injustice”. The respondents have pleaded with me to refrain from granting the reliefs sought by the applicants. They averred that it is other farmers who are not interested in this application who stand to be prejudiced if the reliefs sought were to be granted. [73] In granting certiorari, it is important to note that administrative acts and subordinate legislation are presumed to be valid until set aside by appropriate authority or declared invalid by a court of competent jurisdiction (Woolf, H, et al, De Smith’s Principles of Judicial Review, 2nd edn, London: Sweet and Maxwell, 2020, paragraph 4- 063). This presumption has been restated by courts in different cases: F Hoffman La Roche and Co AG v Secretary of State for Trade and Industry [1974] 2 ALL ER 1128 at 1153; London & Clydeside Estates Ltd v Aberdeen District Council [1979] 3 ALL ER 876 at 893; R v Restormel Borough Council, ex p Corbett [2001] EWCA Civ 330, paragraph 15. In the oft-cited remarks, Lord Radcliffe said in Smith v East Elloe Rural District Council [1956] AC 736 at 769-770 that: An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. 40 [74] Speaking of the pragmatic significance of this presumption, the South African Supreme Court of Appeal in Oudekraal Estates (Pty) Ltd v City of Cape Town and Others (41/2003) [2004] ZASCA 48 at paragraph 26 noted that: …The proper functioning of a modern State would be considerably compromised if all administrative acts could be given effect to or ignored depending upon the view the subject takes of the validity of the act in question. No doubt it is for this reason that our law has always recognised that even an unlawful administrative act is capable of producing legally valid consequences for so long as the unlawful act is not set aside. [75] The presumption of validity is, of course, not of general application as was reaffirmed by Lord Hailsham of St Marylebone LC in London & Clydeside Estates Ltd at p. 882, cited above, and is inapplicable to “flagrant" and "outrageous" cases. The presumption may as well undermine the rule of law (per Lord Diplock in Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 365; Lord Hoffman in R v Wicks [1997] 2 ALL ER 801 at 813 and Forsyth, C., “’The Metaphysic of Nullity’ Invalidity, Conceptual Reasoning and the Rule of Law” in Forsyth, C., and Hare, I., (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC, Oxford: Oxford University Press, 1998, pp. 141- 160). [76] The presumption applies more strongly where quashing the administrative act may work unfairly to third parties or where third parties have done something in reliance of the invalid administrative act. To quash an invalid decision or subordinate 41 legislation in those instances, may be prejudicial to third parties who have relied on them. [77] Forsyth, “’The Metaphysic of Nullity’ at 159 referred to earlier at paragraph 75 sets out conditions under which a third party (whom he referred to as the second actor) may act on an otherwise invalid administrative act: … unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void. [78] This aspect of unlawful administrative actions in connection with third parties finds support in judicial decisions as well. In Agricultural Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 ALL ER 280, a question arose whether the provisions of section 1 (4) of the Industrial Training Act obliged the Minister of Labour to consult the Mushroom Growers Association before establishing a training board for the agricultural, horticultural and forestry industry. It was held that it was mandatory to consult the Mushroom Growers Association and the consultation made to the other association only was insufficient to include the Mushroom Growers Association. It was further held that the order made by the Minister without consulting the Mushroom Growers Association was not binding to them (at p. 282): 42 If it be held that the Minister was under a duty to consult the Mushroom Growers Association, whether on the facts such consultation took place—No. If it be held that the Minister was under a duty to consult the Mushroom Growers Association and failed to do so, what effect such failure had on the provisions of the Industrial Training (Agricultural, Horticultural and Forestry Board) Order 1966. The order has no application to mushroom growers as such. [79] This presumption was equally considered by the Judicial Committee of the Privy Council in Mossell (Jamaica) Ltd (t/a Digicel) v Office of Utilities Regulations and Others (Jamaica) [2010] UKPC 1. The Minister of Industry, Commerce and Technology issued a direction that purported to restrict the powers of a regulatory authority, Office of Utilities Regulations and Others (Jamaica) (the first respondent) following the authority failure to adhere to its advice. Subsequently the authority issued a determination contravening the Minister’s direction but favourable to the second and third respondents and at the expense of the appellant, Mossell (Jamaica) Ltd (Trading as Digicel). The appellant applied for judicial review and one of the reliefs sought was that of certiorari. The first respondent equally applied for judicial review against the Minister’s direction. The Privy Council upheld the Court of Appeal’s decision declaring the minister’s direction ultra vires interfering with the statutory functions of the first respondent. This finding gave rise to a new issue on whether the second and third respondents were bound by the minister’s direction before its illegality was pronounced upon by courts. The Privy Council revisited various authorities and noted that (at paragraph 44): What it all comes to is this. Subordinate legislation, executive orders and the like are presumed to be lawful. If and when, however, they are successfully challenged and 43 found ultra vires, generally speaking it is as if they had never had any legal effect at all: their nullification is ordinarily retrospective rather than merely prospective. There may be occasions when declarations of invalidity are made prospectively only or are made for the benefit of some but not others. Similarly, there may be occasions when executive orders or acts are found to have legal consequences for some at least (sometimes called “third actors”) during the period before their invalidity is recognised by the court – see, for example, Percy v Hall [1997] QB 924. All these issues were left open by the House in Boddington. It is, however, no more necessary that they be resolved here than there. On this account, the Privy Council concluded that the first respondent was entitled to disregard the Minister’s direction as it went beyond the statutory advisory power and because this fact has been made by the court. [80] Hence an administrative act may be valid for one purpose and invalid for another as outlined by Wade, H.W.R., Administrative Law, 3rd edn, Oxford: Oxford University Press, 1971, at pp. 105-106: Although action which is adjudged to be ultra vires is properly described as void or a nullity, this voidness necessarily depends upon the right remedy being sought successfully by the right person…For as against third parties, whose rights are not infringed, a ‘void’ act may well be valid if they have no legal title to challenge it.! Even the injured party may be refused relief, e.g. by an exercise of discretion? or because of some waiver. The meaning of ‘void’ is thus relative rather than absolute; and the court may in effect turn void acts into valid ones by refusing to grant remedies…. [81] In Percy v Hall [1996] 4 All ER 523, police constables arrested the plaintiffs on several occasions pursuant to bye-laws and charged them. The plaintiffs were acquitted 44 of criminal charges. Subsequently the plaintiffs sued for wrongful arrest and false imprisonment and contended that the bye-laws were void for uncertainty and could not justify their arrest. The English Court of Appeal held that notwithstanding their invalidity, the bye-laws provided defence of justification to the police constables. [82] The English Court of Appeal in Shoesmith, R (on the application of) v OFSTED and Others [2011] EWCA Civ 642 ruled that although Ms Shoesmith was dismissed pursuant to unlawful direction of a secretary of state, it declined to issue certiorari and instead directed the law court to consider the issue of compensation. [83] In McCaffrey -v- Minister for Agriculture, Food and the Marine and Another [2017] IECA 246 the minister consented to a forest scheme over a private road that was accessible to McCaffrey family home and Mr Curran, a notice party. The Minister issued the consent after publishing a notice in his website pursuant to forest consent regulations. McCaffrey became aware of the scheme after public consultation had taken place. His application for certiorari was dismissed on the ground that the notice issued by the Minister was sufficient and there was due consultation. On appeal to Irish Court of Appeal, it was held that the procedures set forth in the regulations were ineffective because of their restrictive nature, and the relentless list of afforest applications in the Minister’s website. The Court reasoned that: 42. The situation in the present case is rather different. The application in question does not concern general measures of the kind at issue in Mulligan, but is rather a specific application for a particular afforestation consent rather akin to an application for planning permission…. Elementary fairness required that persons potentially 45 affected by such proposals – such as home-owners and land-owners living in the immediate vicinity – had timely and effective notice of such proposals, by, for example, something like a site notice requirement. Mere publication in itself – and I stress these words – of a notice of an application on the Minister’s website would not suffice for this purpose. However, the Irish Court of Appeal upheld the High Court’s decision refusing to issue certiorari because a third party was involved and efforts subsequently undertaken to address the concern: 50. In making any assessment of this matter, one must also have regard to the interests and rights of Mr. Curran, whose afforestation plans have been interfered with and delayed by reason of legal proceedings not directly of his own making. As I have already made clear, the root of all the subsequent problems lies in the inadequacy of the notice given to Mr. McCaffrey by the Minister. If the matter had been a dispute between Mr. McCaffrey and the Minister only, and did not concern or have implications for a third party, then serious consideration might have been given to quashing the Minister’s decision given the plain inadequacy of the original notice. 51. The dispute does, however, concern or involve a third party, namely, Mr. Curran. The Supreme Court has repeatedly stressed that even in cases of jurisdictional error – such as here, where the initial notification did not comply with fair procedures – the underlying decision should not be quashed if, in the circumstances of the case, it would work an unfairness to third parties…..Of course, had matters stood as they did after 2nd October 2015 so that the permission was granted without any meaningful opportunity for Mr. McCaffrey to have been heard, an order of certiorari would have been more or less inevitable. Matters did not, however, finish there because one cannot ignore the commendable efforts by the Minister to address Mr. McCaffrey’s 46 concerns – admittedly in an after the fact fashion after the closing date – with the result that, like Heneghan J., I cannot say that the substance of these concerns were not addressed, even if the procedure adopted was actually less than perfect or even ideal. [84] The presumption may afford some defence. This aspect was addressed in R v Wicks [1997] 2 ALL ER 801. In this case, a question arose whether in the exercise of statutory powers, a public body having issued an order or bye-law that had not been complied with by an accused person, its lawfulness could be challenged in criminal proceedings. The appellant was served with an enforcement notice under the Town and Country Planning Act 1971 for erecting a building above a certain height in place of the original one destroyed by storms without a planning permission. He contended that the planning permission was unnecessary and refused to comply with the planning notice. He was charged for failure to take steps required in the enforcement notice. The appellant pleaded not guilty and sought to defend himself on the grounds that in issuing the notice the local planning authority acted in bad faith and took into account irrelevant considerations. The trial judge upheld the prosecution arguments that these matters were appropriate in applications for judicial review and not criminal proceedings. The appellant then pleaded guilty and was convicted. His appeal to the Court of Appeal was dismissed and he subsequently appealed to the House of Lords. The House of Lords held that the ability to challenge the validity of administrative act in criminal proceedings depended on the construction of the statute in question. In dismissing the appeal, the House of Lord stressed that the Town and Country Planning 47 Act authorised broad grounds of appeal embracing “every merits of the decision to serve an enforcement notice.” [at 819]. [85] However, the possibility of a collateral challenge of subordinate legislation or an administrative act in criminal proceedings was subsequently expressly accepted by the House of Lords in Boddington v British Transport Police [1998] 2 ALL ER 203. The appellant was charged with smoking a cigarette in a railway carriage contrary to railway bye-laws made under section 67(1) of the Transport Act 1962 by the British Railways Board. He unsuccessfully pleaded that the bye-laws were ultra vires and was convicted. The House of Lords ruled that attack was acceptable in criminal proceedings and Lord Steyn offered pragmatic reasons for allowing collateral attacks [at page 225-226]: …One would expect a defendant in a criminal case, where the liberty of the subject is at stake, to have no lesser rights. Provided that the invalidity of the bye law is or maybe a defence to the charge a criminal case must be the paradigm of collateral or defensive challenge... It is true that…the defendant …[may] challenge the byelaw in judicial review proceedings. The defendant may, however, be out of time before he becomes aware of the existence of the byelaw. He may lack the resources to defend his interests in two courts. He may not be able to obtain legal aid for an application for leave to apply for judicial review. Leave to apply for judicial review may be refused. At a substantive hearing his scope for demanding examination of witnesses in the Divisional Court may be restricted. He may be denied a remedy on a discretionary basis. The possibility of judicial review will, therefore, in no way compensate him for the loss of the right to defend himself by a defensive 48 challenge to the byelaw in cases where the invalidity of the byelaw might afford him with a defence to the charge…. [86] Yet Boddington’s appeal was dismissed. The House was unconvinced by the appellant’s contention that the expression to “regulate” under section 67 (1) of the Transport Act 1962 could not extend to “prohibition” and hence prohibiting smoking was unlawful. [87] It is evident from these authorities that the presumption of validity not only protects third parties but equally provide legal defences and may create room for alternative remedies. [88] The reasoning on the presumption is further evident in the Ezekiah’s case (see paragraph 58). The full bench of the High Court in Ezekiah’s case declared the Environmental Management (Designation of National Cleanliness Day) Guidelines, G.N. No 139 of 2016 unconstitutional against the petitioner, a member of the SDA Church refrained from directing the Minister of State. Office of the Vice President, Union Affairs and Environment to designate every last Sunday of every month to be national cleanliness day for members of the SDA Church given that the constitutional petition was not made in a “representative capacity”. The full bench found this to be a satisfying conclusion even though its declaration would “ultimately benefit more persons than the Petitioner.” [89] Applying these principles in the instant application, I have already found out that that the Business Guideline is designed to operate through cooperative societies. Given 49 that cooperative societies are not parties to this application and may have acted upon the Guideline, it would be unfair to issue certiorari to quash the Guideline consistent with the principle reaffirmed in Wade, Administrative Law, 3rd that the “right remedy” be sought “by the right person” (see paragraph 80). Accordingly, I decline to issue certiorari. [90] Despite the fact that the Business Guideline has no direct application to the applicants, it is their complaint that they have been forced to comply with it. The remedy sought in this regard is that of prohibition. The applicants averred that on 4 August 2024 the Registrar of Cooperative Societies, the officer of the TCDC, (the seventh respondent), with the support of the Ministry of Regional Administration and Local Government, (the fourth respondent), the police and local militia prevented them from trading on crops listed in the Guideline and seized their vehicles. In proving the claim, they attached WKL-2 to the application. The respondents disagreed with the complaint and pointed out in paragraph 13 of their joint-counter affidavit that the penalties imposed on the applicants were for evasion of chickpeas and pigeon peas and these are offences “according to law and guidelines included… [in the] Mwogonzo dated 27th May 2024.” [91] Both parties are agreed that some enforcement measures were taken against the applicants. The applicants’ contention is that the enforcement had no legal force but the respondents maintained that the applicants committed offences. Implicit in the respondents’ defence is that enforcement measures derived some legal force from the Business Guideline as well. The fact of enforcement is partly evident from the letter 50 dated 1 September 2023 to relevant authorities in Babati District to implement the warehouse receipt system and outlining the role of RIVACU Ltd. This letter is part of documents attached to annexure OSG-1 in the respondents’ defence. If the respondents were preventing crime according to various regulatory laws, there would be nothing to prohibit. But any enforcement against the applicants supported by the Guideline was abusive and illegal. [92] That said, I have exerted myself to ascertain if there is a proper application for the order of prohibition. The title to the chamber summons lists orders of certiorari and mandamus. Apart from the ancillary reliefs, the main orders sought in the chamber summons are those of certiorari and mandamus. It is in the joint statement that the order of prohibition is mentioned. Apparently, it was the same format of prayers that was used in the application for leave as the summary of the prayers in the ruling granting leave indicates. I consider the omission to be an oversight and that the respondents had not been prejudiced. The respondents said nothing about this matter. [93] A problem of this nature arose in Tanzania Air Services Limited v Minister for Labour and others [1996] T.L.R. 217 where the applicant applied for the order of certiorari and left out that of mandamus. Samatta J.K. came to the conclusion that the facts justified the order of certiorari and the supervisory powers of the High Court sufficiently authorised him to issue mandamus notwithstanding that it was not sought for [at pp 254-255]: ….it is a rule of common law that where a determination by a tribunal has been quashed by certiorari, the court may, in its discretion, refrain from awarding a 51 mandamus to direct the tribunal to redetermine the matter if satisfied that the tribunal will duly observe the law upon a rehearing, notwithstanding that the court could have effectively enforced an order of mandamus: see Halsbury's Laws of England, vol I, para 125 at 135. Should I invoke that discretion and confine myself to quashing the Commissioner's decision or should I, notwithstanding that there is no such prayer in the application, make an order of mandamus directing redetermination of the reference? I confess that this question has exercised my mind quite considerably, but in the end I have reached a clear opinion on it. Quashing the Commissioner's decision and letting the matter lie there will be unsatisfactory to the applicant company as the decision of the Conciliation Board complained against will still be in force. It seems to me, having given the matter careful attention, that an order of mandamus should be made, but it must be directed to the Minister himself and not the Commissioner… [94] This reasoning was followed by the High Court in Joseph F. Masanja and Two Others v the Attorney General and Four Others [2007] T.L.R. 290. [95] As opposed to the case of Tanzania Air Services Limited, the present applicants clumsily included the order of prohibition in the joint statement only. On the authority of Tanzania Air Services Limited, I have jurisdiction to issue the order of prohibition. [96] Given my findings on the legal status of the Business Guideline entitled “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024, the Mwongozo cannot after this ruling, as the day follows the night, be enforced against the applicants. [97] The applicants further prayed for the order of mandamus. They are asking the High Court to compel the respondents to accord them the right to be heard on price and payment terms to enable them to trade on listed agricultural commodities. They 52 averred that the Business Guideline is discriminatory, unreasonable and actuated by bias in so far as it confines the applicants to operate through cooperative societies. The respondents maintained that the Guideline is not discriminatory rather it ensures transparency and fair trade in the specified agricultural commodities. [98] Can mandamus be issued in the absence of certiorari? This question came for consideration in R v Paddington Valuation Officer and Another, Ex parte Peachey Property Corporation Ltd [1965] 2 ALL ER 836 where applicants challenged the validity of a new valuation list for assessing householder’s tax in borough Paddington. They sought for mandamus to compel the valuation officer to carry out his statutory duty to prepare valuation according to law or alternatively for certiorari to quash the valuation prepared by the valuation officer purportedly according to the law. Lord Denning MR adopted a common-sense approach and reasoned that (at pp. 840-841): No doubt if the list is in due course avoided, certiorari must eventually go to quash it. But I see no reason why a mandamus should not issue in advance of the certiorari . . . If the existing list has been compiled on the wrong footing the court can order the valuation officer to make a new list on the right footing . . . Once the new list is made and is ready to take effect, the court can quash the old list. In that case everything done under the old list will remain good. The rates that have been demanded and paid cannot be recovered back [99] A presumptive unlawful administrative act may remain operative till it is eventually quashed by certiorari and in the meantime, the order of mandamus may be issued. 53 [100] As a non-binding instrument to the applicants, the Business Guideline restricts the operation of warehouses to cooperative societies, and is deceptive and indefinite in connection with farmers and dealers who are not members of cooperative societies as a result of fettering the respondents’ discretion. Fettering discretion, as stated in De Smith’s Principles of Judicial Review, 2nd edn, p 515, paragraph 9-002 encompasses the following circumstances: A decision-making body exercising public functions which is entrusted with discretion must not disable itself from exercising its discretion in individual cases. It may not “fetter” its discretion. A public authority that does fetter its discretion in that way may offend against either or both of two grounds of judicial review: the ground of legality and the ground of procedural propriety. The public authority offends against legality by failing to use its powers in the way they were intended, namely, to employ and to utilise the discretion conferred upon it.’ It offends against procedural propriety by failing to permit affected persons to influence the use of that discretion. By failing to “keep its mind ajar”, by “shutting its ears” to an application, the body in question effectively forecloses participation in the decision-making process. [101] The Business Guideline operates through cooperative societies and, other than miscellaneous costs and charges stated in its Part Three; the Guideline does not give room for further engagement with all key stakeholders in the cereals and other produce on issues of storage, movement, transportation. The rest of the activities are foreclosed from further engagement and the Guideline does not provide guidance on how non- members of cooperative societies may function within this framework. There is no room 54 for operating outside the system introduced by the Guideline notwithstanding that the Guideline narrows the statutory framework. [102] Although the respondents have wide discretion in the management of cereals and other produce extending to farmers, traders, and transporters, they have fettered their discretion through the “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024”. This is contrary to the statutory framework and constitutes an error of law. [103] The order of mandamus may be issued to compel a public authority to perform its public duty according to law. The respondents have echoed that the prerogative remedies are discretionary and should not be granted where there is an alternative remedy. In elaborate arguments, the respondents asserted that the applicants had a right of appeal and their application rests on factual findings ill-suited for judicial review. As regards the complaint that the Business Guideline will thwart fair competition, the respondents argued that this complaint should be addressed to the Fair Competition Commission. The applicants contended that since they are not members of cooperative societies, there is no alternative remedy. [104] As to the existence of a right of appeal, I have already ruled in paragraphs 66-67 that the contention has no merit in so far as it deals with review of evidence. But is there a right to appeal or alternative statutory framework for the resolution of this dispute as argued by the respondents? Guideline 3.1 refers to dispute settlement mechanism under the provisions of section 6 (1) (b) of the Food Security Act, Cereals 55 and Other Produce Act, Commodity Exchanges Act, and its regulations of 2016; and the Cooperative Societies Act and its regulations of 2016. [105] Section 6 (1) (b) of the Food Security Act constitutes COPRA as the arbitrator between farmers and other dealers of cereals and other produce. The dispute in the instant application is between farmers and dealers, on the one hand, and COPRA and other regulatory authorities, on the other hand. Considering the scope of the instant complaints, this provision is completely inapplicable and, even if it were applicable, its application would have offended the rules against bias. I have not found any provision in the Commodity Exchanges Act, Act and its regulations of 2016 or in the Cereals and other Produce Act dealing with the dispute of this nature. For obvious reasons, the Cooperatives Societies Act cannot apply to disputes of this nature. 106] Contrary to the respondents’ contention, the applicants have no clear right of appeal or alternative dispute resolution mechanism. [107] Given that the applicants are stakeholders and have sufficient interest in the farming, trading and transportation of chickpeas, pigeon peas, soy beans and sesame seeds, it is appropriate that the order of mandamus is issued to compel the four respondents who issued the Business Guideline to accord the applicants the right to be heard. The respondents are at liberty to revisit the Guideline or abandon it altogether after arriving at a consensus with key stakeholders on the best way to manage the storage and business of chickpeas, pigeon peas, soy beans and sesame seeds. 56 [108] Another complaint that featured significantly in this application is connection with fair competition and pricing. This complaint and the rest of the complaints in connection with the quality of designated warehouses, financial capacities, and fees and other charges cannot, in view of my findings above, be properly resolved in this application. These complaints can meaningfully be dealt with when the respondents effectively engage the applicants. As I have repeatedly endeavoured to show, the Business Guideline has no direct relationship with the applicants and they cannot, in principle, challenge its contents. The tricky is that it leaves the applicants in the dark in the business of the specified agricultural commodities and it has purportedly been “enforced” against them. These intricacies mandate the Court to issue the order of mandamus. [109] From the above findings, I make the following orders: (a) the “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024” is a voluntary and an administrative instrument with no legal force against the applicants who are farmers, traders, transporters of chickpeas, pigeon peas, soy beans and sesame seeds, and non-members of cooperative societies; (b) the order of certiorari is refused because it may unfairly prejudice third parties to this application; (c) the Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024 being a voluntary and an administrative instrument with no legal force, is unenforceable against the applicants and the 57 respondents are henceforth prohibited from enforcing it against the applicants; (d) the order of mandamus is hereby issued to compel the respondents to accord the applicants an opportunity to be heard according to law and thereby amend or replace the “Mwongozo wa Biashara ya Zao la Dengu, Mbaazi, Soya na Ufuta Toleo la 3-2024,” or otherwise engage with the applicants in the business of the chickpeas, pigeon peas, soy beans and sesame seeds. It is further ordered that the hearing be done within ninety days from the date of the delivery of this ruling; (e) Each party to bear its own costs. DATED at BABATI this 13th day of February 2025 F.M. MIRINDO JUDGE COURT: Ruling delivered in open court this 13th day of February, 2025 in the presence of forty applicants including the first applicant and in the presence of Mr. Erick Maximillan for the tenth respondent. B/C: Ms. Anna Mathayo (RMA) present. 58 F.M. MIRINDO JUDGE 13/2/2025 COURT: Right of appeal explained. F.M. MIRINDO JUDGE 13/2/2025 59