20171031 TZHC Dar es Salaam 2

- r I - •.t ,, - \· IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT DAR ES- SALAAM MISC. CIVIL APPLICATION NO. 82 OF 2017 VICTORIA MEDIA SERVICES LIMITED .................... ~APPLICANT VERSUS THE MINISTER FOR INFORMATION, CULTURE, ARTS AND SPORTS ......................... 1 sT RESPONDENT THE DIRECTOR OF INFORMATION SERVICE DEPARTMENT (A.K.A THE REGISTRAR OF NEWSPAPER ............................................... 2ND RESPONDENT THE ATTORNEY GENERAL ................................. 3RD DEFENDANT RULING The Applicant applies to the Court for an order granting him with leave to file an application for Orders of Certiorari, Mandamus and Prohibitions against the decision of the 1st Respondent to bar for 24 months the publication of Mawio Newspaper as per the order in a letter entitled in in Kiswahili "Kufunga Gazeti lako kwa Miezi 24" of 15th June, 2017 as it was issued contrary to the law as the Minister does not have such powers and in violation of the cherished principles of natural justice. Pursuant to the grant of leave, the Applicant also applies to the court, pending the filing of the application for prerogative orders, for stay order to suspend the operation of the order of the 1st 1 I ' -' Respondent in Kiswahili "Kulifungia gazeti Lako kwa Miezi 24" of 15 th day of June, 2017 and thus allow the continuation of the publication of Mawio newspaper until final determination of the application for prerogative orders. The Applicant also prays for costs and any other order or relief that this court may deem just and fair to grant. The Application is brought by way of Chamber Summons filed under Rule 5(1), (2) (a) - (d), (3) -(6) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure ,.,,.. _ and Fees) Rules,-201-4 (G-.N. No. 324 of-20-14) and Sections 1-s (1-t and 19 (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap. 310 R.E 2002] and any other enabling provisions of the law. The Chamber Summons is supported by affidavit sworn by SIMON MARTHA MKINA the Managing Editor of Mawio Newspaper and JABIR IDRISSA a Journalist at Mawio Newspaper. The Chamber Summons is also supported by a Statement. The Application 1s contested by the Respondents. The latter filed a joint Counter Affidavit sworn DANIEL NYAKIA, the Senior State Attorney. When the application came up for hearing before me, there appeared Dr. Rugemeleza A. K. Nshala (hereinafter to be mentioned as Dr. Nshala) and Mr. Haruni B. Matagane (hereinafter is to be mentioned as Mr. Matagane) the learned Advocate and Senior State Attorney representing the Applicant and Respondents, respectively. 2 ' ... When called upon to submit for the Application Dr. Nshala contended that: purporting to act Under Section 59 of the Media Services Act No. 12 of 2016 the Minister for Information, Culture and Sports, (The Minister) decided to bar publication of the Newspaper named Mawio. He made the decision vide a letter dated the 15th of June, 2017 entitled in Kiswahili "KULIFUNGIA GAZETI LAKO KWA MIEZI 24". Dr. Nshala submitted that the section the Section under which the Minister had acted upon does not empower him to ban publication of a newspaper. Dr. Nshala contended also that prior to making the decision; the Minister did not level any charges against the Applicant and accords him an opportunity to be heard. The applicant was therefore condemned unheard the fact which exhibits that the Minister was in breach of the principle of natural justice that no one shall be condemned without being given an opportunity to be heard. The learned counsel stated further that only the 2 nd Respondent purported to have powers of Summoning the Editor of Mawio Newspaper by a telephone call asking him to explain. As to the counter affidavit, Dr. Nshala submitted that the same contains a sweeping denial and that suffices this court to grant the application. Upon grant of leave the Applicant also prays the court that it issues an order suspending the operation of the bar. This prayer is grantable under Rule 5 (6) of the Rules. (G.N. No. 324 of 2014) which empowers the court to grant stay orders. The order is necessary for it will mitigate the harm visiting upon the 3 Applicant that the lives of the employees of the applicant are at state. On the other hand, Mr. Matagane submitted that the Respondents object to the application. He added that it is a trite law that in an application for leave to apply for a prerogative orders the Applicant must establish a prima-facie case. In the affidavit filed in support of the Application, the Applicant avers that he was not given an opportunity to be heard by the Respondent. It has been again submitted the 1 st Respondent had acted ultra vires because he had no powers to issue the order banning publication of Mawio newspaper. The learned Senior State Attorney submitted that Section 59 of the Media Services Act No. 12 of 2016 empowers the Minister (1 st Respondent) to sanction the publication of any contents that jeopardize any national and/ or public security. Therefore, the Minister has been statutorily empowered to order banning publications. As such by banning the newspaper in question the Minister had acted intra vires against the allegations by the Applicant that it was ultra vires. Mr. Matagane contended further that at page two and second paragraph of "Annexture Mawio 1" the Applicant stated that the applicant was accorded with an opportunity to submit his defence and among other things in his decision the 1 st Respondent did provide the reasons for the decision to ban the said newspaper. The applicant canno,t under such circumstances, successfully say that he was not provided with are opportunity to be heard. 4 As to the "Annexture Mawio 3" of the affidavit of JABIR ISSA the deponent clearly stated how the Applicant was given an opportunity to defend the allegations raised against them. It is also to be noted that the 2 nd Respondent is the Directorate of the 1st Respondent. So the 2 nd Respondent has the mandate to Regulate Media Services. Contrary to the submission by the counsel for the applicant that the Counter Affidavit does not offer any contrary view Mr. Matagane submitted that in paragraph 3 of the counter affidavit, the deponent clearly stated reasons that led the Minister to issue the order banning the publication of the paper. Under paragraph 5 of the Counter Affidavit the deponent also avers that the applicant was availed with the complaint which he had also responded to. This is clear evidence that the applicant was heard before being condemned. As regards to the prayer for a temporary order restraining the operation of the contested order of the Minister, Mr. Matagane objected to it on ground that the Respondents had performed their statutory duties and within their powers. If the court thinks it is necessary to make the order it should put into consideration, therefore, the provisions of Rule 5 (5) of the Rules (G.N. No. 324 of 2014) by imposing terms as to costs and security. With those submissions, Mr. Matagane (S.S.A) prayed the court that it dismisses the application with costs. 5 In a short rejoinder, Dr. Nshala reiterated that the Media Services Act No. 12 of 2016 does not empower the Minister to bar any newspaper. It only empowers the minister to ban publication of the contents of a newspaper. Section 3 of the Act defines the term "Content". In this case what the Minister did is barring the newspaper and not the contents of the newspaper. That is why they contend that the applicant had acted Ultra vires. Dr. Nshala also stated that his learned friend, the Senior State Attorney, contended that there is no a prima facie case made. He submitted that in the counter affidavit the deponent does not show the date and time when the 1st Respondent leveled a charge against the Applicant and that it is the 2 nd Respondent who purported himself to have the powers of summing the Managing Editor of Mawio Newspaper, which powers he does not have. As regards to the prayer for a stay order, Dr. Nshala submitted that the Rules that govern the Judicial Review Procedure vest powers in the court to issue a stay order. As the Minister's order/ decision was fragrantly issued the same should be stayed by the court. Given the nature of the order contested provisions of security as provided for under Rule 5 (5) of the Rules is not an issue worth to consider. As the Applicant was not charged and the fact that the applicant was not heard, a prima facie case has been made in this application and the applicant deserves for orders he is seeking from the court. 6 ------- - - - In short that is all submissions by the parties. Going by the pleadings and submissions made to the court, I find there is no dispute that on the 15th of June, 2017 the Minister for Information, Culture, Arts and Sports issued an order vide a letter with Ref No. IH/RN/ 189/58 barring the publication of Mawio newspaper published by the applicant for twenty-four months. The order is in the following Kiswahili words: - "Hivyo kwa kuzingatia mazzngzra tuliyonayo sasa niliyoy_a_eleza awali yanayokuhitaji uandishi wenye wajibu (responsible journalism) na -rekodi ya gazeti lako,- - - sina budi kulifungia Gazeti lako na kukutaka usitishe kulichapisha kwa nakala ngumu au ya mtandaoni kwa kipindi cha muda wa miezi ishirini nne tangu tarehe ya barua hii kwa mamlaka niliyopewa chini ya Sheria ya Huduma za Habari Na. 12 ya Mwaka 2016 Kifungu cha 59". It is in the understanding of the parties and as it is submitted by the parties, in an application for grant of leave to file an application for judicial review the applicant must establish to the court that he/she has a prima facie case. The issue to be determined is therefore is whether the applicant has established a prima facie attracting for grant of leave as sought. I have considered the submission along with the Affidavit in support of the application and the statement filed by the applicant. In challenging the decision of the 1st Respondent the applicant alleges two facts. One: That 7 in barring publication of Mawio Newspaper the Minister had acted without known statutory powers. Two: that prior to making the decision, the 1st Respondent did not level any charges against the Applicant. He did not either accord him an opportunity to be heard. The 1st Respondent was therefore in breach of one of the principles of natural justice that nobody should be condemned unheard. I have considered these allegations and am of the opinion that where the applicant, in an application for leave to file an application for Judicial review alleges breach of the principles of Natural justice towards the making of the decision intended to be reviewed Judicially or that the maker of the said decision had no legal powers to make it, leave is grantable because in such a situation a prima facie case seems to have been established; that the court shall answer in the application for prerogative whether or not the applicant was accorded with an opportunity to be heard and again whether or not the maker of the decision to be contested had powers to make it. In that premises therefore, I find merit in this application for leave to file an application for judicial review and the same is hereby grated. As to the prayer that a stay order be issued to suspend the operation of the 1st Respondent in Kiswahili "Kulifungia Gazeti Lako kwa Miezi 24" of 15th June, 2017 and thus allow the continuation of the publication of Mawio newspaper until the final determination of the application for prerogative orders, Rule 5 (6) of G.N. No 324 of 2014 under which the prayer is made, reads as follows: - 8 - ---- --- - r: - "The grant to leave under this rule shall apply for an order of prohibition or an order of certiorari, if the judge so directs, operate as a stay of proceeding in question until determination of the application or ordered othenvise". The Rule gives power to the court to stay proceedings a subject of an application for judicial review. As of now, there are no proceedings taking place before the Respondents. The 1st Respondent has already made a decision which decision is intended to be contested by way of judicial review. Operation of this decision is not proceeding that can be stayed under Rule 5(6) of the Rules. The prayer to have the operation of the order stayed is therefore denied. It is hereby ordered that each party should bear his own costs. Dated at Dar es Salaam this 31 st of October, 2017. E.J.~S1~ JUDGE 31/10/2017 9