20130308 TZHC Dar es Salaam

f 1 . . IN· THE HIGH COURT OF TANZANIA AT DAR ES SALAJiM MISC. CIVIL APPLICATION NO. 39 OF 2011 THE PERMANENT SECRETARY MINISTRY OF HEALTH AND SOCIAL WELFARE . . . . . . . . . . . . . . . . . . . APPLICANT VERSUS PUBLIC PROCUREMENT APPEALS AUTHORITY . ~ . . . . . . . . . . 1 sT RESPONDENT THE ATTORNEY GENERAL . . . . . . . . 2No RESPONDENT !'• 5-. MEDAL INVESTMENTS LTD . . . . . ~ ·. f' 3Ro RESPONDENT Date of last order- 28/9/2012 Date of Ruling- 8/3/2013 RULING Shangwa, J. On 4 th · November, 2011, the Applicant filed an Application for Orders of Certiorari and Mandamus against 1 .. . the decision of the 1st Respondent dated 24 th January, 2 2011. The Application was accompanied by a statement of l , facts. At paragraph 1 of its reply to the statement of facts, the 3 rd Respondent raised a preliminary objection that the Applicant has no locus standi to sue the Respondents on grounds that the mandatory provision of S.10 of the Government Proceedings Act, Cap. 5 R.E. 2002 have been contravened. On 24 th August, 2012, I ord~red counsel for the Applicant Mr. Mkoba and counsel for the 3 rd Respondent Mr. Yusufu to argue the preliminary objection by way of written submissions and they did so. Mr. Yusufu submitted· that save under the Proviso to S. 10 of the Government Proceedings Act, Cap. 5 where the Minister may direct that any particular aivil proceedings be . instituted by any officer designated:; in the Order to be published 1n the Gazette, the proceedings against the 3 Government have to be instituted: by or against the Attorney General. Mr. Yusufu contended that as the Appl~cant is neither an officer design~ted in the gazette as per the Minister's directive to institute these proceedings against the Government nor the Attorney General, she has no locus standi. Mr, Mkoba submitted that on 13 th September, 2011, Rugazia, J. granted leave to the Applicant to apply for prerogative orders via Misc. Civil At?plication No. 114 of 2011. He contended that since the Applicant filed the Application after obtaining leave, she cannot be said to be lacking locus standi. I agree with Mr. Mkoba that the Applicant after obtaining leave to this court to apply for prerogative orders, the same court cannot go against it~ previous order and ,, hold that the Applicant has no locus~ standi. It would be self contradiction to do so. However, I think that it was 4 wrong for the Applicant to join the Attorney General as 2nd ' Respondent in the Application. ''I'his is because the ' Attorney General was not a party to Civil Appeal Case No. 87 of 2010. The said appeal case was between Medal Investments Ltd who was the Appellant and Ministry of Health and Social Welfare who was the Respondent. According to the record of the Public Procurement Appeals Authority, judgment was given in favour of Medal f Investm-ents Ltd after finding that thte tender process was manned by irregularities. The authority nullified the award of the tender given to M / S Tanscott Associates (T) Ltd and ordered the Respondent now Applicant to restart the tender process afresh in observance of the law and to compensate Medal Investments Ltd now 3 rd Respondent a sum of Tshs.3,620,000 /=. l As I have already stated, the A1Jplicant has a locus standi. I have stated also that it was wrong for the 5 Applicant to join the Attorney Generat in the Application as .. he was not a party to Appeal Ca~se No. 87 of 2010. Consequently, I overrule the preliminary objection and strike out the name of the Attorney General from the Application and order that the Application between the .,,. ... JUDGE \~:~·>·:;~_~,,:· 8/3/2013 Delivered in open court this 8 th day of March, 2013 in the presence of Mr. Tumaini Mfinanga, Advocate and Miss Stella Machoke for the Attorney General.