ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES AND OTHERS 1996 TLR 352 (HC)

 

ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES AND OTHERS 1996 TLR 352 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Kaji J

D

MISC CIVIL CAUSE NO 13 OF 1996

9 August 1996 E

Flynote

Administrative law - Application for order of certiorari - To quash GN 370 of 1994 for

being unreasonable - Nothing to indicate that Minister acted ultra vires in enacting

GN 370 - Government Notice not unreasonable F

Administrative law - Application for mandamus - To respect certificate of approval

issued to applicants under the National Investment (Production and Protection) Act

No 10 of 1990 by issuing fishing licence - No provision making the licence a necessary

consequence of a certificate of approval issued by the IPC G

Administrative law - Licence - Issue of - Discretion must be exercised with a judicial

mind - Authority having acted under a false belief that applicant's vessel exceeded

500 BHP - Decision quashed - Authority ordered to reconsider H

-Headnote

The applicants applied for various orders against the respondents arising out of the

refusal of a fishing licence for the 1996 fishing period. In 1994 the Minister for

Tourism, Natural Resources and the Environment (the 2nd respondent) promulgated

Government Notice 370 of 1994 whereby it was ordered that fishing vessels had to

comply with I certain specifications relating to overall length, tonnage and engine

power. It was specified that the vessel's main engine bhp should not exceed 500. The

1996 TLR p353

applicants' vessel was modified for these purposes and although it marginally

exceeded A the maximum length its engine power was reduced to comply with the

requirements. Notwithstanding the modification, the licence was not granted.

Aggrieved by this decision the applicant applied to court for the following relief: B

(i) an order of certiorari to remove into the court GN 370 of 1994 for the

purpose of it being quashed for being unreasonable; (ii) an order of certiorari to

remove into the court the decision made by the first and second respondents refusing

to issue a fishing licence and for the quashing thereof; (iii) an order of mandamus

directing the first and second respondents to issue a fishing licence and to C guide

their action in terms of the provisions of the National Investment (Promotion and

Protection) Act 10 of 1990; (iv) an order of mandamus directing the first and second

respondents to respect the certificate of approval issued to the applicants by the third

respondent; (v) an order of mandamus directing the third respondent to respect the

certificate of approval issued to the applicants D and protect them from irregular

procedure.

Held:

(i) Government Notice 370 of 1994 had been made under s 7 of the

Fisheries Act 6 of 1970 which empowered the Minister responsible for fisheries to

make E regulations for inter alia the protection of fish resources. There was nothing

to indicate that the Minister had acted ultra vires in sanctioning GN 370. Neither was

there anything to show that GN 370 was unreasonable.

(ii) There was no provision which stipulated that once the IPC issued an

investor with a certificate of approval then the Director of Fisheries or the Minister

had to issue him with a fishing licence. F

(iii) If the third respondent had a duty of care to protect the applicants and

he breached that duty of care and the applicants had suffered a financial loss then the

remedy was to be found somewhere else and not by an order of mandamus.

(iv) The discretion which the first respondent had to exercise in awarding

fishing G licences had to be exercised with a judicial mind: in refusing the

applicant's licence the first and second respondents had acted under a false belief that

the appellant's vessel exceeded the specified 500 bhp and the decision was accordingly

not reached on the basis of fairness and justice and had to be quashed. H

(vi) An order of mandamus was however not appropriate: the respondents

were rather required to reconsider the applicants' application for a fishing licence on

the basis of fairness and justice.

Case Information

Ordered accordingly.

Mrs Kato for the applicants. I

Songoro for the respondents.

1996 TLR p354

[zJDz]Judgment

Kaji, J: A

This is an application by the applicants Adecon Fisheries (T) Ltd and Mr Ebrahim

Halday for orders of certiorari and mandamus.

It has been filed under s 2(2) of the Judicature and Application of Laws Ordinance

Cap 543, s 95 of the Civil Procedure Code, 1996, s 17(C) of the Law Reform (Fatal B

Accidents and Miscellaneous Provision Ordinance) Amendment Act 55 of 1968, and

any other enabling provision of the law.

The first applicant Adecon is a corporate company registered under the Companies

Ordinance Cap 212 and has been doing fishing and exporting of frozen prawns for

some C years.

The second applicant Iqbal is a citizen of Tanzania and the managing director of the

first applicant company.

The first respondent is the Director of Fisheries in the Ministry of Tourism and

Natural Resource and is entrusted, among other duties, with the authority to issue

licences for D fishing or dealing in fish on fish products in Tanzania.

The second respondent is the Minister for Tourism, Natural Resources and

Environment and under s 22 of the Fisheries Regulations 1989 he acts as an appellate

body on issues arising under the Fisheries Act 6 of 1970. E

The third respondent is the Director-General of the Investment Promotion Centre

established under the National Investment (Production and Protection) Act 10 of

1990 responsible for approving investors and for issuing certificates of approval. F

The fourth respondent is the Attorney-General who is the chief legal advisor to the

Government.

In 1996 the Minister for Tourism, Natural Resources and Environment (ie second

respondent) sanctioned Government Notice No 370 of 1994 whereby inter alia, it was

ordered that any person who until the first day of March 1994 was using for fishing

any G vessel/trawler in Lake Victoria or in the Indian Ocean (Tanzania Territorial

Waters) shall, effective from 1 January 1996 have ceased to use that vessel for fishing

unless the said vessel had complied with the specifications made thereunder. The said

specifications showed that such a vessel should not exceed the overall length of 25,0

metres, 150 H gross registered tonnage (GRT) 2nd 500 main engine brake horse

power (BHP).

For the 1996 fishing period the applicants were denied a fishing licence by the first

respondent on the ground that their vessel exceeded the specified specifications.

Their I appeal to the second respondent was rejected. They were aggrieved. They

lodged this

1996 TLR p355

KAJI J

application praying for an order of certiorari to remove into this court the

Government A Notice No 370 of 1994 for the purpose of being quashed for being

unreasonable. And also to remove into this court the decisions made by the first and

second respondents to refuse issuing fishing licence for 1996 fishing season for the

purpose of being quashed. B

They also prayed for an order of mandamus so that the first and second respondents

should be ordered to issue an appropriate fishing licence to the applicants and to

guide their actions in accordance with the provisions of the National Investment

(Promotion C and Protection) Act 10 of 1990. Also an order of mandamus should be

directed to the third respondent to respect the certificate of approval issued to the

applicants and to protect them from irregular procedure being bona fide investors

protected by the laws of Tanzania. D

Elaborating on these the applicants submitted that the first and second respondents

failed to act reasonably by failing to hold due and proper note of the fact that the

applicants had rectified their vessel to the required specification of 500 BHP and that

the reduction of the BHP was witnessed by a principal marine surveyor in the name

of Mr E Josephat Shanta Notionata. And further that immediately after the meeting

held on 19 January 1995 as per para 8 of the respondent's affidavit the applicants

started making efforts to comply with the requirements of the law whereby a survey

certificate was later issued by Capt Mokiwa after receiving a letter from the Ministry

of Works confirming the F reduction. The applicants went on submitting that a ship

is not like a bicycle or a saloon car which can be rectified or removed within a short

notice and that the letter from the second respondent directing the applicants to

move within a short notice and to make alternative arrangement was, in their view,

very unreasonable in the circumstances. G

The applicants went on submitting that the respondents acted unreasonably by failing

to consider the eminent loss of government revenue, the loss of income to the

applicants, and the consequent breach of the hire purchase agreement resulting into

losses of the H applicant's money already paid and the great possibility of

repossession of the ship by the seller.

The applicants went on submitting that the principal secretary of the second

respondent Ministry is among the members who sat to approve the applicant's

application of the IPC whereby no objection was raised as to the size of the ship. It is

therefore their view that I there was no scientific proof supporting the specification

in GN

1996 TLR p356

KAJI J

370 of 1994, and therefore in their view GN 370 of 1994 is unreasonable both in law

and A in fact.

The applicants complained that the first and second respondents acted with bias by

issuing fishing licences to other vessels which had not complied with GN 370 of 1994.

These vessels which were mentioned in para 7.2 of the statement are MFV Emilia

with B 256.36 GRT 992 BHP, MFV Arusha with 155,8 GRT 550 BHP, MFV Odyseas

with 660 BHP MFV Al-Wally with 624 BHP and MFV Mama Leda with the length of

25 metres. While under s 14 of the Fisheries Act 6 of 1970 the Minister has a

discretion to exempt any person or organisation from all or any of the provisions of

that Act or any subsidiary C legislation made thereunder if doing so is in the public

interest, it is their submission that the first respondent did not disclose anywhere

what public interest was considered in granting the other vessels licences. It is their

submission that the second respondent D in refusing their appeal to issue the licence

to the applicants was biased and was made without any due regard to the public

interest.

The applicants were also not happy with the third respondent.

In their submission they submitted that the third respondent had a duty and

responsibility E to oversee promotion and protection of investors in accordance with

the law and especially s 5 of the National Investment (Promotion and Protection) Act

10 of 1990 which says: F

`5(1)‚ To keep under review and advise the government periodically on

policies, strategies and procedure relating to the promotion and regulation of

investments and matters connected therewith, and to recommend action necessary

for the encouragement of private investments including simplification of procedures

effecting investment and legislative measures. G

5(2)(K)‚ To assist holder of certificate of approval in securing all licences,

authorisations, approvals and permits required to enable any approval granted by the

centre to have full effect.' H

It is their complaint that when their application for a licence was refused they

contacted the third respondent. But the third respondent did nothing to assist them

nor did the third respondent make any effort to discuss the issue with the first and

second respondents to advise them accordingly. I

The applicants further submitted that there has been no co-ordination between the

second and third respondents as a result the

1996 TLR p357

KAJI J

third respondent issued them with a certificate of approval for the year 1996 but the

first A and second respondents refused to issue them with a fishing licence. It is their

view that it was useless for them to follow the procedure laid down by the law which

is not honoured by the second respondent thereby rendering that law a useless piece

of B document. They said the enactment of GN 370 of 1994 shows how the third

respondent failed to protect the applicants and investors in general especially that it

affected the main aspect of investment.

The applicants went on submitting through their learned counsel Mrs Kato that the

first, C second and third respondents failed to analyse the state of the applicant's

loan which had been guaranteed and approved by the Bank of Tanzania. And further

that the respondents failed to appreciate the amount of capital and efforts that had

been put in the approved project. They said the vessel is valued at US$2.5 million

which was purchased under a hire purchase agreement through the Bank of Tanzania.

They are D making a monthly payment of US$20,833.33 for setting of the loan to

Ellafonissos which is a fishing and shipping company of Greece to whom they have so

far paid US$1,514,770 of the purchase price which they also stand to lose if this

application is not granted. They ended up by reminding this court that since the first

and second E respondents have already issued fishing licences to other vessels which

contravene GN 370 of 1994 then an order for mandamus prayed for can be made

against the first and second respondents as it is within their powers. F

The respondents resisted the application. They were represented by Mr Songoro,

learned State Attorney. Mr Songoro relying heavily on the counter affidavit deponed

by M S Veridiana Nkwabi Macha, learned State Attorney submitted that the

applicant's application for a fishing licence for the 1996 fishing season was rejected

because their vessel did not meet the specification laid down in GN 370 of 1994 in

that its Gross G Registered Tonnage (GRT) was 222 as against the specified 150 GRT,

its length was 26.76 metres as against the specified 25.0 metres, and its brake horse

power (BHP) was 700 and later reduced to 500 BHP. He said under s 15 of the

Fisheries Act, the first H respondent has power to deny fishing licences to certain

types of vessel, and he did to the applicants' vessel, for the purpose of conserving a

diminishing fishery resources. He said if the applicant's vessel would be allowed to

carry on fishing activities, it would cause a big mixing of water with debris and mud

to the extent of endangering fishery resources. I

Mr Songoro went on submitting that in an application for certior-

1996 TLR p358

KAJI J

ari and mandamus like this one the crucial issue is whether the decision of the first

and A second respondents was proper or erroneous in law, in view of GN370 of

1994.

It was his humble submission that the applicant's application did not point or disclose:

B

(a) That there was an error on the face of the record in respect of the

decision of the first and second respondents.

(b) That there was any violation of the principle of natural justice.

(c) That the respondents acted in excess of without jurisdiction. C

(d) That the respondents took into consideration extraneous consideration

in reaching their decisions.

With all this it was the learned State Attorney's submission that there is no basis for

this honourable court to quash the decision of the first and second respondents. He

said D economic and policy consideration cannot defeat express provisions of the

law.

The learned State Attorney went on submitting that the fact that the BHP was

reduced to the required specification that per se was not enough to enable the

applicants to be issued with a fishing licence because the lenght and GRT exceeded

the specifications. E He said the first and second respondents cannot be held to have

acted unreasonably because the applicants were given two years in which they were

to have their vessel rectified or replaced with a vessel with the required specifications.

It was the learned F State Attorney's submission that a period of two years was

sufficient time and cannot be held to be unreasonable; and further that the applicants

should not be heard complaining about losses because they decided to keep the vessel

at their own risk because it did not meet the required specification. G

The learned State Attorney dismissed the applicant's sympathy for loss of government

revenue in that since there is evidence that fishery resource is being depleted granting

a fishing licence to the applicants would result into more depletion which would also

cause a loss of revenue to the government. H

As far as the applicant's complaint for discrimination is concerned the learned State

Attorney replied that the Fisheries Department is in a gradual process of phasing out

fishing trawlers to avoid total depletion of the resource; and that it was only

unfortunate the hammer fell on the applicants as a first move. It was the learned State

Attorney's I submission that the act of issuing fishing licences even to some vessels

which had exceeded specifications was not with bias.

1996 TLR p359

KAJI J

The learned State Attorney went on replying that the question of costs incurred by

the A applicants cannot be a good ground for contravening the law. That is why

licences are issued annually to allow relevant authorities to determine the state of the

resources before the commencement of the fishing season and issuance of fishing

licence. B

With all this the learned State Attorney called upon this court to dismiss this

application.

The applicants are praying for five remedies, namely:

C 1. For an order of certiorari to remove into this court Government Notice

No 370 of 1994 for the purpose of it being quashed for being unreasonable.

2. For an order of certiorari to remove into this court the decision made

by the first and second respondent's refusing to issue a fishing licence to the

applicants for the 1996 fishing season. D

3. For an order of mandamus directing the first and second respondents to

issue an appropriate fishing licence to the applicants and to guide their action in

accordance with the provisions of the National Investment (Promotion and

Protection) Act 10 of 1990. E

4. For an order of mandamus directing the first and second respondents to

respect the certificate of approval issued to the applicants by the third respondent as

bona fide investors protected by the laws of Tanzania. F

5. For an order of mandamus directing the third respondent to respect the

certificate of approval issued to the applicants and protect them from irregular

procedure.

I will deal with them one after another although not necessarily in seriatim. G

Before going into the merits or demerits of these prayers I must make it clear that it is

a well-known principle of law that granting a prerogative order is a discretion of the

court and that the court will only do so if that is the only remedy to meet the justice

of that case. H

Now as far as the first prayer is concerned the applicant's allegation is that GN 370 of

1994 is unreasonable because there is no scientific proof supporting the specification

made thereunder. The learned State Attorney's reply is that that Government Notice

is not unreasonable because it was sanctioned for the purpose of conserving a

diminishing fishery resource. I

The crucial issue therefore is whether this GN is reasonable. In

1996 TLR p360

KAJI J

deciding whether this GN is reasonable or unreasonable we must look at the

provision A under which it was made, that is, whether it is ultra vires or intra vires.

This was made under s 7 of the Fisheries Act 6 of 1970. Under that provision of the

law the Minister responsible for fisheries has got powers to make regulations for the

better B carrying out the objects and purposes of that Act and may, by such

regulations, make provisions which, in his opinion, are necessary or expedient for the

purposes of protecting, conserving, developing, regulating or controlling the capture,

collection, gathering, manufacture, storage or marketing of fish, fish products, aquatic

flora or C products of aquatic flora.

The object and purpose of the Fisheries Act 6 of 1970 is inter alia to protect, conserve

and control fish, fish products etc according to the wording of the title of that Act. D

According to the learned State Attorney GN 370 of 1994 was sanctioned to conserve

diminishing fishery resources. It is my considered view that there is nothing

indicating that the Minister acted ultra vires in sanctioning GN 370 of 1994. Likewise

there is nothing indicating that GN 370 of 1994 is unreasonable. It was not necessary

for the E Minister to show the amount of the diminishing fish. At any rate that

would be impossible.

In view of this applicant's prayer for an order of certiorari to remove into this court

GN 370 of 1994 for the purpose of being quashed is rejected. F

I will deal with the second and third prayer later.

I now move to the fourth prayer. The applicants are requesting this court to issue an

order of mandamus directing the first and second respondents to respect the

certificate of approval issued by the applicants by the third respondent as bona fide

investors G protected by the laws of this country. According to the applicants since

they were issued with a certificate of approval by the third respondent, the first and

second respondents were duty bound to honour that certificate of approval and issue

them with a fishing licence for that period. With respect to the learned counsel for

the applicants I did not H come across a provision saying that once the Investment

Promotion Centre issues an investor with a certificate of approval then the Director

of Fisheries or the Minister responsible for fisheries must issue him with a fishing

licence. Had it been an ordinary suit I wouldn't hesitate to hold that there is no cause

of action. But for the purpose of a I prerogative order of mandamus I hold that there

are no sufficient grounds for the order prayed for.

1996 TLR p361

KAJI J

In view of this the applicant's prayer for an order of mandamus directing the first and

A second respondents to respect the certificate of approval issued by the third

respondent to the applicants is rejected.

As far as the fifth prayer is concerned the applicants are praying for an order of B

mandamus directing the third respondent to respect the certificate of approval issued

to the applicants and to protect them from irregular procedure. According to the

applicants, the third respondent has a duty to protect investors as per his obligations

under s 5 of the National Investment (Promotion and Protection) Act 10 of 1990. It is

the applicant's C feeling that the third respondent abdicated from that obligation

because when they were refused a fishing licence by the first and second respondents,

the third respondent refusing to respect the certificate so issued. With respect to the

learned counsel for the applicants, I do not see how the question of mandamus comes

in. If the third respondent D had a duty of care to protect the applicants and he

breached that duty of care as a result the applicants have suffered a great financial

loss, then the remedy can be found somewhere also and not by an order of

mandamus. For that reason the applicant's prayer for an order of mandamus directing

the third respondent to respect the certificate E of approval is rejected.

I now come to the first and second prayers. Under these prayers the applicants are

praying for an order of certiorari to remove into this court the first and second

respondent's decision refusing to issue the applicants with a fishing licence for the F

purpose of quashing it, and an order of mandamus directing the first and second

respondents to issue the applicants with a fishing licence.

According to the applicants the first and second respondents acted unreasonably in

refusing them a fishing licence on the ground of failing to meet the required

specification G in that they had reduced the BHP from 750 to the required

specification of 500 and the length exceeded very slightly the required length in that

their vessel was only 26 OM as against the specified 25 OM. They went on arguing

that the first and second respondents were biased because they allowed other fishing

vessels which exceeded H the specified specification by far. They cited some

examples of the said vessels. And that no public interest was involved.

In reply the learned State Attorney replied that under the Fisheries Act 1970 the

second respondent can exempt any person or organisation from all or any of the

provisions of I this Act or of any subsidiary legislation made thereunder if in his

opinion it is in

1996 TLR p362

KAJI J

the public interest so to do (s 14) and that the move to phase out all vessels which A

exceeded the specification was a gradual process and that it was only unfortunate that

the hammer fell on the applicants as the first victim. He denied any bias or

discrimination.

When a law allows discretion then that discretion must be exercised with a judicial

mind. B It must be exercised on the basis of fairness and justice. It must not be

exercised with a bias or discriminatory mind.

In the present case the crucial issue in this respect is whether in refusing the

applicants application for the 1996 fishing licence while granting fishing licences to

other vessels C with similar defects the first and second respondents exercised their

discretion with a judicial mind without bias or discrimination.

The second respondents rejected the applicant's appeal on the ground that their vessel

exceeded the 500 BHP (see Annexure A5). D

This shows clearly that the first and second respondents in refusing the applicant's

application acted under a false belief that the appellant's vessel exceeded the specified

500 BHP. There is an undisputed fact in Annexure A4 that the applicant's vessel had

its BHP been reduced to 500 as witnessed by a principal marine surveyor from

Hellenic E Register of Shipping Mr Josephat Shanta Nationata as confirmed by the

Registrar of Ships. Hellenic Register of Shipping is an authorised classification society

with power to issue statutory survey certificates on behalf of the Tanzania

Government.

Looking at the vessels which were issued with fishing licences although they

exceeded F the specified specification as listed by the applicants it would appear that

they were allowed because none of them exceeded all three specifications unlike the

applicant's vessel which appeared to have exceeded all specifications. MFV Emilia had

256.36 GRT and 992 BHP, MFV Arusha 155 GRT and 550 BHP, MFV Odyseas 600

BHP, MFV G Al-Wally 624 BHP and MFV Mama Leda with the length of 25 metres.

Had the first and second respondents addressed their mind to the proper 500 BHP of

the applicant's vessel their decision would probably have been different.

Since the first and second respondents refused the applicant's application on a wrong

H belief that the applicant's vessel exceeded all three specifications, their decision

was not based on the basis of fairness and justice. It was not free from apprehension of

bias and discrimination. It is hereby quashed.

The court has been asked to issue an order of mandamus directing the first and second

I respondents to issue the applicants with an appropriate fishing licence. But it must

be borne in mind that the

1996 TLR p363

court is not supposed to use the powers of other organs with powers vested on them

by A law. Its duty is only to see to it that such powers are properly used. It is only in

very rare occasions (if any) when a court can order specific performance against a

government organ. The proper cause is to declare or rather to direct what is to be

done. B

In view of this the first and second respondents are hereby directed to reconsider the

applicant's application for a fishing licence on the basis of fairness, justice and without

bias or discrimination. This is to be done within fourteen (14) days from the date of

delivery of this ruling. C

1996 TLR p363

D