Administrative Law in Tanzania. A Digest of Cases 9987449506, 9789987449507

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ADMINISTRATIVE LAW IN TANZANIA

ADMINISTRATIVE LAW IN TANZANIA A DIGEST OF CASES

B. D. CHIPETA

Mkuki na Nyota Publishers P. O. Box 4246 Dar es Salaam, Tanzania www.mkukinanyota.com

Published by: Mkuki na Nyota Publishers Quality Plaza Building, Nyerere Road, Dar es Salaam, Tanzania Email: [email protected] website: www.mkukinanyota.com

© B. D. Chipeta, 2009

ISBN 978-9987-449-50-7

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means (including photocopying and recording) or stored in a retrieval system without the written permission of the copyright holder and that of the publisher.

CONTENTS Abbreviations..........................................................................................................v Glossary.................................................................................................................vii Acknowledgements..............................................................................................ix Table of Cases Digested.....................................................................................xi Table of Foreign Cases Referred to...............................................................xix Table of Statutes...............................................................................................xxv Preface................................................................................................................xxvii Chapter One: Procedure in Applications for Prerogative Orders......................................1 Chapter Two: Constitutional Principles and Human Rights............................................21 Chapter Three: Jurisdiction of Courts and Ouster of Jurisdiction.....................................89 Chapter Four: Prerogative Orders and Alternative Remedies........................................121 Chapter Five: Natural Justice, Discretion and Fairness..................................................153 Chapter Six: The Right to Legal Representation.........................................................191 Cases on Specific Legal Themes...................................................................204 Table of Cases Digested .................................................................................231 Bibliography.......................................................................................................235

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ABBREVIATIONS A.G. A.I.C.C. AC Ag.J. AIR All ER All NLR BAKWATA C.A. C.I.D. C.J. Cap. CAT CCM Ch. CLB Cr. App. Rep. D.C. D.M.T. D.P.P. DOWICO E.A. E.A.A. EACA Ed. EHRR G.N. H.M. H.C. HCD I.F.M. I.R. J.

Attorney General Arusha International Conference Centre Appeal Cases Acting Judge All India Reports All England Law Reports All Nigeria Law Reports Baraza La Waislamu Tanzania Court of Appeal Criminal Investigations Department Chief Justice Chapter Court of Appeal of Tanzania Chama Cha Mapinduzi Chancery Division Commonwealth Law Bulletin Criminal Appeals Reports District Commissioner Dar es Salaam Motor Transport Director of Public Prosecutions Dodoma Wine Company East Africa Law Reports East African Airways Reports of the Court of Appeal for Eastern Africa Editor European Human Rights Reports Government Notice Her Majesty High Court High Court Digest of Tanzania Institute of Finance Management Irish Reports Judge

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J.A. J.K. JUWATA K.L.R. KB L.C. L.J. L.T. LRC LRT M.R. N.S.C. O. O.C.D. OTTU P. PC PLD q.v. r. R.P.C. RE S. SC SCR THB TLR (R) TLR US v. Vol. W.L.R. Z.L.R. ZLR

Administrative Law in Tanzania

Justice of Appeal Jaji Kiongozi (Principal Judge) Jumuiya Ya Wafanyakazi wa Tanzania Kenya Law Reports King’s Bench Division Lord Chancellor Lord Justice Law Times Law Reports of the Commonwealth (Constitution) Law Reports of Tanzania Master of Rolls National Sports Council Order Officer Commanding District Organization of Tanzania Trade Unions President Privy Council Pakistan Law Which see Rule Regional Police Commander Revised Edition Section Supreme Court Supreme Court Reports Tanzania Housing Bank Tanganyika Law Reports (Revised) Tanzania Law Reports United States Versus Volume Weekly Law Reports Zimbabwe Law Reports Zanzibar Law Reports

GLOSSARY amicus curiae

audi alteram partem

certiorari de facto de jure de novo ex parte

habeas corpus

intra vires locus standi mandamus nolle prosequi

a friend of the court; a person who is not engaged in the case, but who brings to the attention of the court a point which has apparently been overlooked. hear the other side; it is a principle of natural justice that no man should be condemned unheard; both sides should be heard before a decision is given; everyone has the right to speak in his or her own defence and to have the case against him or her explained to him or her to be fully informed of. an order of a superior court used to review and to quash decisions of tribunals. in fact; an expression indicating the actual state of circumstances. by right; by lawful title; by law; as a matter of law; where the title lies. anew; to begin de novo is to begin from the beginning. on behalf of; also one part, one side – so, an injunction granted ex parte is an injunction granted after hearing one side only and in a case of great urgency; an application in a judicial proceeding made: (1) by an interested party who is not a party and (2) by one person in the absence of another. normally called habeas corpus ad subjiciendum, means that you have the body; a prerogative writ to command a person who is detaining another in custody to produce the body of that person before the court. within its powers. place to stand; a place of standing; a right to be heard, or the legal capacity to challenge some decision. we command; a writ from the High Court ordering performance of a public duty. do not pursue, unwilling to prosecute; an undertaking by the plaintiff to discontinue an action. In a criminal case the entry of a nolle prosequi which stays a prosecution on an indictment is made only by the Director of Public Prosecutions or the Attorney General before judgment. It is vii

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obiter dicta per incuriam

prima facie ratio decidendi res judicata

stare decisis

sub judice

supra ultra vires

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not an acquittal. Therefore, fresh proceedings may be brought on the same charge at a later date. saying by the way; statement of the law based on facts which were not present or not material in a case. through want of care; a decision made in ignorance or forgetfulness of inconsistent statutory provision or some authority binding on the decision maker. on the face of it; based on the first impression. the reason or a ground for a judicial decision. also referred to as res judicata veritate acciputur; a matter on which judgment has been given; a thing adjudicated is received as the truth; a judicial decision is conclusive until reversed and its verity cannot be contradicted; res judicata presupposes that there are two opposing parties, that there is a definite issue between them, that there is a tribunal competent to decide the issue, and that within its competence, the tribunal has done so; once a matter or issue between parties has been litigated and decided, it cannot be raised again between the same parties, but other parties are not so bound. stand by decided matters; abiding by precedent; stand by precedent and not to disturb settled points; doctrine according to which previous judicial decisions must be followed. under judicial consideration; not yet decided; when a matter is sub judice it means that it is pending in court, and if another matter is brought by the same opposing parties, over a definite similar issue then the subsequent matter is stayed until the finalization of the preceeding matter in which case, in most cases, the subsequent matter will be res judicata. above; higher than; prior to; often used to refer the reader to a previous part of a book, an article or judgment. beyond the powers; term relating generally to excess of legal powers or authority; an act in excess of authority conferred by law and therefore invalid.

ACKNOWLEDGEMENTS I express my gratitude to Dr. Khoti Kamanga of the Faculty of Law, University of Dar es Salaam, for drawing to my attention some of the relevant materials in some of the subjects covered in this book; to my son, Walter, for providing me with excellent working facilities in the course of preparing the manuscript; to all advocates and research officers who were with Law Offices of Chipeta & Associates (Advocates), at the time of prepaparing the manuscript, who directly or indirectly assisted me in my research; and to Ms. Zubeda Kamatta of the Law Offices of Chipeta & Associates for typing the original manuscript. Last but not least, I express my gratitude to my wife, Ruth, to whom this book is dedicated, for her unfailing support, encouragement, and patience throughout the preparation of the manuscript.

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TABLE OF CASES DIGESTED Chapter One Procedure in Applications for Prerogative Orders and Alternative Remedies The Republic ex parte Shirima v. Kamati ya Ulinzi na Usalama, Wilaya ya Singida, the Area Commissioner and Attorney General, [High Court of Tanzania, 1983, TLR 375, Lugakingira, J.]. Re: An Application by Hirji Transport Service [H.M. High Court of Tanganyika, 1961, E.A. 88, Biron, J.]. Hotel Africana v. JUWATA [Court of Appeal of Tanzania, 1988, TLR 105. The Dar es Salaam Motor Transport Co. v. The Transport Licensing Authority [Court of Appeal for Eastern Africa, 1959, E.A. 403]. Fatuma Awadh Hindi v. Salima Ali [Court of Appeal of Tanzanai, 1987, TLR 156]. Hans Wolfgang Golcher v. General Manager of Morogoro Canvas Mill and Others [High Court of Tanzania, 1987, TLR 78, Maina, J.]. Hanif Ali Ladak and Another v. Regional Prisons Officer [High Court of Tanzania, 1981, TLR 68, Mnzavas, J.]. V.G. Chavda v. Director of Immigration Services [High Court of Tanzania, 1995, TLR 125, Samatta J.K.].

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Chapter Two Constitutional Principles and Human Rights Rev. Mtikila v. Attorney General [High Court of Tanzania, 1995, TLR 31, Lugakingira, J.]. Thomas Mjengi and Another v. Republic [High Court of Tanzania, 1992, TLR 157, Mwalusanya, J.]. Shaban Khamis Mloo and Others v. Superintendent of Zanzibar Prisons and Another [High Court of Zanzibar, 1991, TLR 21, Hamid, C.J.]. Mwalimu Paul John Mhozya v. Attorney General (No. 1) [High Court of Tanzania, 1996, TLR 130, Samatta, J.K.]. OTTU (On Behalf of P.P. Magasha v. Attorney General [High Court of Tanzania Full Bench, 1997, TLR 30]. Himid Mbaye v. The Brigade Commander [High Court of Zanzibar, 1984, TLR 294 Ramadhani, C.J.]. In Re: Wilfred Ngonyani [High Court of Tanzania, 1982, TLR 272, Biron, J.]. The Judge i/c Arusha and Attorney General [Court of Appeal of Tanzania, Civil Appeal No. 45 of 1998, unreported]. James F. Gwagilo v. Attorney General [High Court of Tanzania, 1994, TLR 73, Mwalusanya, J.]. Attorney General v. W.K. Butambala [Court of Appeal of Tanzania, 1993, TLR 46]. Samwel Kubeja v. Republic [High Court of Tanzania, 1981, TLR 72, Mroso, J.]. Nanalal Damodar Kanji v. Tanga Township Authority [H.M. High Court of Tanganyika, TLR (R) 239, McRoberts]. Hamisi Masisi and Others v. Republic [High Court of Tanzania, 1985, TLR 24, Mfalila, J.]. D.P.P. v. Daudi Pete [Court of Appeal of Tanzania, 1993, TLR 22]. Attorney General v. Lohay Akonaay [Court of Appeal of Tanzania, 1995, TLR 80]. In Re: D.S. Yamo and Another [High Court of Tanzania, 1985, TLR 119, Mushi, J.]. Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi [High Court of Tanzania, 1996, TLR 203, Samatta, J.K.]. Kukutia Ole Pumbun and Another v. Attorney General and Another [Court of Appeal of Tanzania, 1993, TLR 159]. Rev. Christopher Mtikila v. The Editor, Business Times and Augustine Lyatonga Mrema [High Court of Tanzania, 1993, TLR 60, Samatta, J.K.]. In Re: Ratilal B. Patel [H.M. High Court of Tanganyika, 1956, 2 TLR (R) 227, Low, J.].

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An Application by Paul Massawe [High Court of Tanzania, 1979, LRT 18, Mnzavas, J.]. Julius Ishengoma Francis Ndyanabo v. Attorney General [Court of Appeal of Tanzania Civil Appeal No. 64 of 2001, unreported].

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Chapter Three Jurisdiction of Courts and Ouster of Jurisdiction Re: Application, Nagindas Desai [H.M. High Court of Tanganyika, 2 TLR (R) 192, Cox, C.J.]. Mapanda v. The Manager, East African Airways [High Court of Tanzania, HCD 24, Georges, C.J.]. Mtenga v. University of Dar es Salaam [1971, HCD 247, Biron, J.]. Saidi Juma Muslim Shekimweri v. Attorney General [High Court of Tanzania, 1997, TLR 3, Samatta, J.K.] Harun s/o Nchama and Another v. Republic [High Court of Tanzania, 1982, TLR 274, Mwaikasu, J.]. Ahmed Janmohamed Dhirani v. Republic [High Court of Tanzania, 1979, LRT 11, Maganga, J.]. Attorney General v. Aman Walid Kabourou [Court of Appeal of Tanzania, 1990, TLR 156]. Stephen Kiberenge and Others v. Republic [High Court of Tanzania, 1986, TLR 6, Mwalusanya, J.]. Tanganyika Electric Supply Company v. Ahmed Omar [High Court of Tanzania, 1965, E.A. 29, Sir Ralph Windham, C.J.]. Sheikh Abdulla v. Regional Police Commander, Dar es Salaam and Two Others, [High Court of Tanzania, 1985, TLR 1, Mapigano, J.]. Tanzania Air Services Ltd. v. Attorney General and Commissioner for Labour [High Court of Tanzania, 1996, TLR 217, Samatta, J.K.]. Titos Kornelio v. Geoffrey B. Mshana and Another [Court of Appeal of Tanzania, 1981, TLR 128]. James Bitta v. Iddi Kambi [High Court of Tanzania, 1979, HCD 9, [Mfalila, J.].

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Chapter Four Prerogative Orders and Alternative Remedies Alfred Lakaru v. Town Director (Arusha) [High Court of Tanzania, 1980, TLR 326, Maganga, J.]. Obadiah Salehe v. Dodoma Wine Company Ltd. [High Court of Tanzania, 1990, TLR 113, Masanche, J.]. Mohamed Jama Yusuph v. Minister for Home Affairs [High Court of Tanzania, 1990, TLR 80, Kyando, J.]. John M. Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba [High Court of Tanzania, 1986, TLR 73, Mwalusanya, J.]. Patman Garments Industries Ltd. v. Tanzania Manufacturers Ltd. [Court of Appeal of Tanzania, 1981, TLR 303]. Morris Onyango v. Customs Department, Mbeya [High Court of Tanzania, 1980, TLR 150, Samatta, J.]. Timothy H.M. Mwakilasa v. The Principal Secretary (Treasury) [High Court of Tanzania, 1978, LRT 38, Samatta, J.]. De Souza v. Tanga Town Council [Court of Appeal for Eastern Africa, 1961, E.A. 377]. Re: An Application by Fazal Kassam (Mills) [H.M. High Court of Tanganyika, 1960, E.A. 1002, Sir Ralph Windham, C.J.]. Re: Application ex parte, Habib Punja and Others [H.M. High Court of Tanganyika, 1955, 2 TLR (R) 205, Cox, C.J.]. Tropex Ltd. and Another v. Commissioner of Incme Tax and Others [High Court of Tanzania, 1996, TLR 390, Mapigano, J.]. Ndesamburo v. Attorney General [High Court of Tanzania, 1997, TLR 137, Msumi, J.]. Alh. J. Mungula v. BAKWATA [High Court of Tanzania, 1997, TLR 50, Mapigano, J.]. M.A.Ndolanga and Others v. N.S.C. and Another [High Court of Tanzania, 1996, TLR 325, Bubeshi, J.]. Tanzania Dairies Ltd. v. Chairman, Arusha Cnciliation Board [High Court of Tanzania, 1994, TLR 33, Mroso, J.]. The Assistant Registrar of Buildings v. Fredrick G. Kibwana [Court of Appeal of Tanzania, 1987, TLR 84]. Northern Tanzania Farmers’ Co-operative Society Ltd. v. W.H. Shellukindo (Preliminary Objection) [High Court of Tanzania, 1978, LRT 36, Mwesiumo, J.].

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Chapter Five Natural Justice, Discretion, and Fairness Agro Industries Ltd. v. Attorney General [Court of Appeal of Tanzania, 1994, TLR 43]. George Samwel Kibwana v. Kassim Mohamed Khamis [High Court of Tanzania, 1974, LRT 55, Mwakasendo, J.]. The Registrar of Buildings v. Eliniiria Patton Mwasha [High Court of Tanzania, 1982, TLR 242, Lugakingira, J.]. Sadiki Athumani and Another v. The Republic [High Court of Tanzania, 1990, TLR 54, Samatta, J.]. Sanai Murumbe and Another v. Muhere Chacha [Court of Appeal of Tanzania, 1990, TLR 54]. Donald Kilala v. Mwanza District Council [High Court of Tanzaina, 1973, LRT 19, El-Kindy, J.]. DPP v. S.I. Tesha and Another [Court of Appeal of Tanzania, 1993, TLR 237]. Jimmy David Ngonya v. National Insurance Corporation [High Court of Tanzania, 1994, TLR 28, Bahati, J.]. Simeon Manyaki v. I.F.M. [High Court of Tanzania, 1984, TLR 304, Mapiganono, J.]. Arcado Ntagazwa v. Buyogera Bunyambo [Court of Appeal of Tanzania, 1997, TLR 242]. Mohamed Jawad Mrouch v. Minister for Home Affairs [High Court of Tanzania, 1996, TLR 142, Makanja, J.]. Adecon Fisheries (T) Ltd. and Another v. Director of Fisheries and Others [High Court of Tanzania, 1996, TLR 352, Kaji, J,]. Re: Bukoba Gymkhana Club [H.M. High Court of Tanganyika, 1963, E.A. 478, Reid, J.]. Northern Tanzania Farmers’ Co-operative Society Ltd. v. W. H. Shellukindo (Merits) [High Court of Tanzania, 1978, LRT 37, Mwesiumo, J.]. J. Verji v. THB Estates Co. Ltd. [High Court of Tanzania, 1983, TLR 391, Maina, J.].

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Chapter Six The Right to Legal Representation DPP v. Arbogast Rugaimukamu [High Court of Tanzania, 1982, TLR 139, Rubama, J.]. Alimasi Kalumbeta v. Republic [High Court of Tanzania, 1982, TLR 329, Samatta, J.]. Mohamed s/o Salim v. R. [Court of Appeal for Eastern Africa, 1958, E.A. 202]. Mugema and Another v. Republic [High Court of Tanzania, 1967, E.A. 676, Platt, J.]. Jafferali Abdalla Haji v. Rex [H.M. High Court of Tanganyika, 1 TLR (R) 299, Wilson, J.].

TABLE OF FOREIGN CASES REFERRED TO A.G. of Alberta v. A.G. of Canada (1974) AC 503. A.G. of Bendel State v. A.G. of Nigeria (1982) 3 NCLR 188. A.G. of Gambia v. Jobe (1985) LRC (Const.) 556. A.G. of St. Christopher, Nevis and Anguilla v. Reynolds (1979) 3 All ER 129. A.G. of The Gambia v. Momedu Jobe (1984) AC 689 (PC). A.G. v. Scott (1905) 2 KB 160. Adediran v. Interland Transport Ltd., 9 NWLR 1. Adesanya v. President of Nigeria and Another (1981) 1 All NLR 1. Amodu Tijan v. The Secretary, Southern Nigeria (1921) 2 AC 399. Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 W.L.R. 163. Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. Attorney General (McWhirter) v. Independent Broadcasting Authority (1973) 1 All ER 689. B. Johnson & Co. (Builders) v. Minister of Health (1947) 2 All ER 395. Baron v. Sunderland Corporation (1966) 2 Q.B. 56. Benazir Bhuto v. Federation of Pakistan, PLD (1988) SC 46. Blackburn v. A.G. (1971) 2 All ER 1380. Board of Education v. Rice (1911) AC 179. BP Bhatt and Another v. Habibu Rajani (1958) E.A. 536. Breen v. Amalgamated Engineering Union and Others (1972) 2 Q.B. 175. Brighton & Co. v. Westoby (1857) 1 LJ Ex. 302. Broad Smith v.Draeger (1901) 2 Ch. 86. Bull v. Minister of Home Affairs (1986) (1) ZLR 202. Byrne v. Kinematograph Renters Society (1958) 2 All ER 579. C.R. Ramson v.Llyed Barker and A.G. (1983) 9 CLB 1211. Campbell v. Thomson (1953) 1 All ER 831. Chief Asagba v. Alege (1981) 2 NCLR 424. Clarke v. Karika (1985) LRC (Const.), 732. Collector of Customs (Madras) v. N.S. Chetly (1962) AIR SC 316. Congreve v. Home Office (1976) AC 629. Council of Civil Service Unions v. Minister for Civil Service (1984) 3 All ER 935. Cooper v. Wilson (1937) 2 KB 309. Cowasjee Dinshaw (Aden) v. Cowasjee Dinshaw Employees Union (1963) E.A. 84. Cox v. Green (1966) 1 All ER 268. xix

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D.C. Kiambu v. R. and Others (1960) E.A. 109. Dawson v. Irish Brokers Association (unreported). De Verteuille v. Knaggs (1918) AC 557. Deare v. A.G. (1835) 1 X & C. Ex. 197. Devan v. Bareasa and Another (1973) E.A. 358. Enderby Town Football Club v. F.A. (1971) 1 All ER 215. Errington v. Ministry of Health (1935) 1 KB 249. Ex parte Patel (1954) 27 KLR 140. Finnigan v. New Zealand Rugby Football Union (1986) LRC (Const.) 877. Francis v. Yiewsley and West Drayton UDC (1957) 2 Q.B. 136. General Medical Council v. Spackman (1943) AC 627. Giella v. Cassman Brown (1973) E.A. 358. Glynn v. Keele University (1971) 1 W.L.R. 487. Golaknath v. State of Punjab (1967) 2 SCR 762. Goldberg v. Kelly, 397 US 254. Gordon Dadds & Co. v. Morris and Others (1945) 2 All ER 101. Grace Stuart Ibingira v. Uganda (1966) EA 445. Gregory v. Camden London Borough (1966) 2 All ER 196. Guaranty Trust Co. of New York v. Hanny & Co. (1914–15) All ER 24. Gouriet v. Union of Post Office Workers (1978) AC 435. H. Das v. District Magistrate, Luttak (1969) AIR 43. Haji v. Nungu and Another (1987) LRC (Const.) 224. Hamatlas Hailal Mehts v. State of Nadhya Pradesh and Others, AIR 15 SC 403. Hansraj v. Official Liquidator (1933) A PC 63. Hariram v. Hazi Mohamed (1954) Allahabad 141. Hawabai Franjee Petit v. Secretary of State for India (1915) Bom 279. Healey v. Minister of Health (1954) 2 All ER 580. Hendon Electric Supply Co.v. Banks (1918) 118 LT R 544. Hewlett v. Minister of Finance (1981) Z.L.R. 511. Hornal v. Neuberger Products Ltd. (1956) 3 All ER 970. Howard v. Pickford Tool Co. Ltd. (1951) 1 K.B. 417. Huth v. Clarke (1980) 25 Q.B.D. 391. IRC v. National Federation of Self-employed and Small Businesses Ltd. (1981) 2 All ER 93. Irish Family Planning Association v. Ryan (1979) I.R. 295. J.K. Chatrath and Another v. Sha Cedar Mart (1967) E.A. 97. James v. Australia (Commonwealth) and New South Wales (State) (1936) AC 578. Javda Karson v. Harman Singh Bhogal, 20 EACA 74. Joint Anti-fascist Refugee Committee v. McGarth, 341 US 123. Joseph v. East Ham Corporation (1936) 1 KB 367.

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Kesavananda v. Kerela State (1973) Supp. SCR 1. Kinat Bibi v. Howea Jute Mills Co. Ltd (1932) AIR Cal. 751. Laker Airways Ltd. v. Department of Trade (1977) 2 All ER 182. Lanchbury and Others v. Morgans and Others (1971) 2 W.L.R. 603. Lindsley v. Natural Carbonic Gas Co. (1911) 220 US 61. Liversidge v. Sir John Anderson (1942) AC 206. Local Government Board v. Arlidge (1915) AC 120. London Passenger Transport Board v. Moscrop (1942) AC 332. Lutifunissa Bibi and Others v. Nazrun Bibi (1985) 11 Cal. 33. M. v. Home Office (1993) 3 W.L.R. 433. Maerkle v. British and Continental Fur Ltd. (1954) 3 All ER 50. Maneke Gandghi v. Union of India (1978) 2 SCR 621. Matalinga and Others v. A.G. (1972) E.A. 518. Megawan v. Maryland (1961) 366 US 420. Metropolitan Properties Co. Ltd. v. Lannon and Another (1969) 1 Q.B. 577. Minister of Home Affairs v. Kickke and Others (LRC (Const.) 755. Minister of Justice v. Borowiskji (1981) 2 SCR 375. Mistry Amr Singh v. Serwano Wafunira Kalubya (1963) EA 408. Mohamed Nawaz Sharif v. President of Pakistan, PLD DC 473. Monton v. Brighton Corporation (1951) 2 KB 393. Morarji v. Morarji (1958) E.A. 277. National Textiles Workers’ Union and Others v. Ramakrisihman and Others (1980–84) SCR 746. Nurmohamed Janmohamed v. Kassamali Virji (1953) 20 EACA 8. Nova Scotia Board of Censors v. McNeil (1976) 2 SCR 265. Nyali Ltd. v. A.G. (1955) 1 All ER 646. O’Reilly v. Mackman (1963) AC 237. Odd Jobs v. Mubia (1970) E.A. 476. Olawayin v. A.G. of Northern Nigeria (1961) All NLR 269. Opoloto v. Uganda (1969) E.A. 63. Osmond v. Public Service Board (1985) (Const.) 1041. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997. Patel v. Plateau Licensing Court (1954) K.L.R. 147. Pearlman v. Harrow School Governors (1979) Q.B. 56. People v. Board of Education of City of Chicago 323 US 733. Peoples Union of Democratic Rights v. Minister of Home Affairs (1985) AIR Delhi 268. Prahalad Jena v. Tate (1950) Orissa 157. Pyx Granite v. Ministry of Housing (1958) 1 All ER 635. R. v. Agricutural Land Tribunal ex parte Bracey (1960) 1 WLR 911. R. v. Aston University Senate, ex parte Roffey and Another (1969) 2 Q.B.D. 538.

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R. v. Barnsley Metropolitan Council, ex parte Hook (1976) 3 All ER 452. R. v. Bishop of York (1879) Q.B.D. 245. R. v. Chief Immigration Officer ex parte Kharrazi (1980) 1 WLR 1403. R. v. Commissioner for Special Purposes of Income Tax (1888) 21 Q.B. 313. R. v. Commissioner of Police ex parte Blackburn (1968) 2 Q.B. 118. R. v. Electricity Commissioner ex parte London Electricity Joint Committee Co. Ltd. (1920) (1924) 1 KB 171. R. v. Gaming Board of Great Britain ex parte Benaim and Khaida (1970) 2 All ER 58. R. v. London County Council ex parte Entertainments Protection Association Ltd. (1931) 2 KB 215. R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All ER 717. R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw (1952) 1 All ER 338. R. v.Paddington Valuation Officer ex parte Peachey (1965) 2 All ER 836; (1966) 1 Q.B. 380. R. v. Panel on Take-overs and Mergers (1987) 1 All ER 564. R. v. Sussex Confirming Authority, ex parte Tomlin and Sons Brewery (Brighton) (1937) 4 All ER 106. R. v. Thomas (1892) 1 Q.B. 426. Racecourse Betting Control Board v. Secretary of State for Air (1944) 1 All ER 60. Raj Spinning Mills v. A.G. King Ltd. (1962) AIR SC 319. Rawal v. Mombasa Hardware (1968) E.A. 392. Re Coles and Ravenshear (1970) 1 KB 1. Re: A.G.’s Application (1959) E.A. 482. Re: ex parte Gilmore (1956) 1 Q.B. 574. Re: H.H. (1967) 2 Q.B. 617. Re: I.G. Farbeindustrie AG Agreement (1943) 2 All ER 525. Re: Liverpool Taxi Owners Association (1972) 2 All ER 589. Re: Pergamon Press Ltd. (1971) Ch. 388. Rex v. Halliday (1917) AC 260. Ridge v. Baldwin (1963) 2 All ER 66. S.L. Kapoor v. Jagmohan (1981) SCR 746. Sajan Singh v. Sardala Ali (1960) AC 167. Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1983) AIR SC 239. Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch. 149. Secretary of State for Education and Science v. Metropolitan Borough of Tameside (1976) 3 All ER 66. Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (1972) 2 QB 455. Shah v. A.G. of Uganda (1970) 3 EA 543. Shenton v. Smith (1896) AC 229. Short v. Poole Corporation (1926) Ch. 66.

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Smith v. East Elloe Rural District Council (1956) AC 736. SP Quota v. Union of India (1982) AIR (SI) 149. Steele v. A.G. (1967) AIR SL 1. Sturat v. Crowninshield (1819) 4 Law Ed. 529. Taff Vale Railway Co. v. Amalgamated Society of Railway Servants (1901) 1 KB 170. Tailor v. National Assistance Board (1957) 3 All ER 703. Tehrani and Another v. Rostron (1972) 1 Q.B. 187. Tellis and Others v. Bombay Municipal Corporation and Others (1987) LRC (Const.) 351. The King v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. The King v. Postmaster General, ex parte Carmichael (1928) 1 KB 291. The State (Irish Pharmaceuticals Union) v. Employment Appeals Tribunal (1987) ILRM 36. Thomas and Others v. Lufoseye (1986) LRC (Const.) 639. Thorson v. A.G. of Canada (1975) 1 SCR 138. Tricundas Mulji and Another v. Khimji Vullans and Others (1892) 16 Bom. 626. University of Ceylon v. Fernando (1960) AC 631. Vidyarthi v. Ram Rakha (1957) E.A. 527. Wahid Munawar Khan v. State (1956) AIR Hyd. 22. Warsall Overseers v. London and North Western Railway (1978) 4 AC 30. Wilson and Others v. Secretary of State for the Environment (1974) 1 All ER 42. Wiseman v. Borneman (1969) 3 All ER 275. Young v. Edward Box & CO. (1951) 1 TLR 158. Zebrewsky v. Palestine (General Officer Commanding) (1947) AC 246.

TABLE OF STATUTES Advocates Act, Cap. 341, RE 2002. Basic Rights and Duties Act, Cap. 3, RE 2002. Constitution of the United Republic of Tanzania, Cap. 2 RE 2002. Deportation Act, Cap. 380, RE 2002. Electricity Act, Cap. 131, RE 2002. Government Proceedings Act, Cap. 5, RE 2002. Immigration Act, Cap. 54, RE 2002. Indian Acts (Application) Ordinance. Industrial Court of Tanzania Act, Cap. 60, RE 2002. Judicature and Application of Laws Act, Cap. 453, RE 2002. Land Ordinance repealed by the Land Act, Cap. 113, RE 2002. Legal Aid (Criminal Proceedings) Act, Cap. 21, RE 2002. Minimum Sentences Act, Cap. 90, RE 2002. National Investment (Promotion and Protection) Act, 1990. Permanent Labour Tribunal Act, 1967 as amended by Act No. 18 of 1977. Presidential Affairs Act, Cap.9 RE 2002. Preventive Detention Act, Cap. 361, RE 2002. Resettlement of Offenders Act, Cap. 71, RE 2002. Security of Employment Act, Cap. 574, RE 2002. Stock Theft Act, Cap. 422, RE 2002. Tanzania Investment Act, Cap. 38, RE 2002. Town and Country Planning Ordinance No. 42 of 1956 [R.L. 378] Cap 355. Ward Development Committee Act, Cap. RE 2002.

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Administrative Law Definition Administrative Law may best be defined by describing what it encompasses: it is that branch of law which deals with the individual versus governmental or administrative power. It covers courts’ restraint of actions or inactions of public institutions, administrative processes of central and local governments, parliamentary and subordinate legislations, and the means and procedures by which the rights of individuals are protected against the abuse of power by public or local authorities, public corporations, tribunals and other bodies which discharge functions of a public nature entrusted to them by law for the benefit of the citizen. In his book Administrative Law Professor H.W.R. Wade defines administrative law in the following terms (pages 4–5, 6th Edition): A first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power. This … is the heart of the subject …. The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. The learned author adds: A second approximation to a definition, administrative law may be said to be the body of general principles which govern the exercise of powers and duties by public authorities. In their book Administrative Law in Ireland Gerald Hogan and David Gwynn Morgan define administrative law as (page 1, 3rd Edition): … the law regulating the organization, composition, functions and procedures of public authorities; their impact on the citizen; and the constraints to which they are subject. xxvii

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Sources of Administrative Law As in many other jurisdictions, the sources of administrative law in Tanzania are the following: the Constitution of the United Republic of Tanzania, 1977 as amended from time to time, Acts of Parliament and Delegated (or Subordinate) Legislation, Common Law, Administrative Orders, Rules, Regulations and Circulars, and judicial decisions. The Constitution is the primary source of the administrative law in which are embodied the concepts of the rule of law, separation of powers, and good governance generally. The rule of law embraces the principle of legality, that is, that no executive or administrative action shall be taken except in accordance with the law; that every person, including Government, is subject to law; that the question of the legality of an act by the Government or public or administrative body shall be determined by the Judicature which exercises its powers independent of Government or other body; that the law must be ascertainable; and that there be equality before the law. Common law is, of course, a source of administrative law. In it are to be found the principles of natural justice which encompass fairness, the right to be informed about an accusation or threatened action, and the right to be heard in defence of such accusation or intended action. Subsidiary legislation (sometimes referred to as delegated legislation) is another important source of administrative law, particularly in recent years, which has witnessed a steady growth in Central Government functions. More and more Central Government functions are being delegated to local authorities and other public bodies and tribunals. Subsidiary legislation is defined in section 4 of the Interpretation of Laws Act, Cap. 1, R.E. 2002, with the meaning “any order, proclamation, rule, rule of court, regulation, notice, by-law or instrument made under any Act and/or other lawful authority”. So the expressions “subsidiary or subordinate, or delegated legislation” are used here to refer to legislation made by a subordinate authority duly authorized to do so by an Act of Parliament for a given purpose; and “delegated power” is that power which is conferred by an Act of Parliament on a Minister, local authority, public body, corporation or tribunal to carry out specified functions. Delegated legislation may be in the form of Rules, Regulations, or Orders. Delegated legislation is sometimes criticized on the ground that it goes against the doctrine of separation of powers in the sense that by that doctrine, legislation is the domain of the Legislature; but with delegated legislation, the legislation is exercised by some other bodies, albeit under the control or supervision of

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Parliament in that in some cases such legislation only comes into effect after Parliament has passed a resolution adopting it. That notwithstanding eminent learned authors on the subject have justified delegated legislation on several grounds. It certainly owes its existence and rapid growth to the increase in Parliament’s and Central Government’s duties in the modern state. Hogan and Morgan justify it in the following terms (pages 22 to 23, Administrative Law In Ireland, 3rd Edition): Parliamentary time is scarce and the Oirechtas could not reasonably be expected to legislate for every administrative detail. It is, therefore, content to state the general principles in legislation and allow details to be regulated by ministerial order. There is also a need for flexibility and the law must be capable of rapid adjustment to meet changing circumstances. In Wade’s Administrative Law, justification for delegated legislation is expressed as follows (page 847): Parliament is obliged to delegate very extensive law-making power over matters of detail and to content itself with providing a framework of more or less permanent statutes …. Administrative legislation is traditionally looked upon as a necessary evil, an unfortunate but inevitable infringement of the separation of powers. The learned author adds (page 849): Flexibility is essential, and it is one of the advantages of rules and regulations that they can be altered much more quickly and easily than can Acts of Parliament. In their book Administrative Law, J.F. Garner and B.L. Jones put it thus (page 49): In the modern state the bulk of legislation is so great that Parliament has not sufficient resources of time or personnel to concern itself with all matters of detail. Parliament should concern itself with the general policy of legislation. Often, Acts should be passed as mere skeletons with the appropriate Minister being empowered to add the details, by means of regulations and orders made under the authority of the Act – thus giving flesh and blood to the skeleton so that it may live. The learned authors add:

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Sometimes the subject matter on which legislation is required is simply of too technical a nature for the issues to be fully appreciated and understood, and so properly discussed in Parliament. Legislative power is then necessarily entrusted to Ministers employing scientific or other experts …. Subordinate legislative power can allow more prompt reaction to unforeseen circumstances. Parliamentary legislation cannot provide for every eventuality. Subordinate legislation enables the Executive to respond quickly to emergencies without need to go to Parliament. It provides a convenient means of bringing an Act into force when “subordinate” considers appropriate so as to have breathing space. In his book Administrative Law in East Africa, P.A. Oluyede, writes (page 60): Delegation of legislation may be allowed where it is meant to deal with matters too technical for effective handling by the government. Delegation legislation may be given to the executive in order to relieve pressure on parliamentary time and so enable Parliament to concentrate on principles rather than details of social regulation as well as matters of local interest. Court decisions (both local and from other jurisdictions) are yet another source of administrative law and its development. The contents of this book bear testimony to that statement. Rules, Orders, and Circulars issued by the Ministries or the Departments from time to time can also be said to be a source of administrative law, but their legal status has sometimes been questioned in our courts of law, particularly where they have been found to be inconsistent with statutory law or the law of the land, that is, the Constitution.

The Place of Administrative Law in Tanzania For many years Administrative Law in Tanzania had largely been regarded by students of law as being purely academic, and the general public viewed it as an arid branch of law, in the sense that it appeared to them as a subject of little relevance to their everyday lives. That was certainly the position during the colonial period and during the early years of independence. During that period, it was almost unthinkable for many people, although not all, for an individual to challenge the constitutionality of a statute or the legality of a subsidiary legislation, or to challenge a decision of a public functionary or public body, let alone a decision by the President of the United Republic of Tanzania. To many people, the Central Government or

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local authority, or public functionary, were like fathers to kids; they believed such authorities could do no wrong, and so their decisions could not be questioned in front of the courts of law. As a result of this attitude, this branch of law assumed, and remained in, a back seat for many years. It is true that there were a few enlightened and spirited individuals who resorted to it when their rights were violated or threatened, as can be seen in some of the cases in this book. But those were the exceptions rather than the rule. Among such cases a few deserve mention. One case which easily leaps to mind is the case of De Souza v. Tanga Town Council (1961) EA 377. In this case the appellant was dismissed by his employer, Tanga Town Council, but the procedure of dismissing an employee as laid down in the Staff Regulations as well as rules of natural justice were not followed. His application for orders of certiorari and mandamus were dismissed by the High Court which held that the fact that the person who filed the complaint against the appellant had sat in the Traffic Fire Committee (which had initially deliberated on the complaint) and the fact that the person had later conferred with the Appeal Committee in the absence of the appellant, did not prejudice the appellant. On an appeal to the Court of Appeal for Eastern Africa, the Court allowed the appeal on grounds that the laid down procedures were not followed; that a tribunal must act fairly, in good faith and fairly listen to both sides; that the person accused must be told the nature of the accusation against him, and, above all, that if principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of a departure from the essential rules of natural justice. The Court in that case was, in fact, reiterating the principle laid down by Lord Wright in the English case of General Medical Council v. Spackman (1943) AC 627, in which he said: If principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of natural justice. The decision must be declared to be no decision. Another case worth mentioning during this period is the case of Re: Bukoba Gymkhana Club (1963) EA 478. In this case the facts were that a Liquor Licensing Board had refused to renew the Club’s liquor licence without giving the Club an opportunity to be heard. The reason given by the Board for its refusal was that the Club’s Constitution was “largely discriminatory” in that it had a provision to the effect that an application for membership had to be proposed and seconded by the members. In an application for certiorari and mandamus, the High Court granted the application holding that as a body charged with legal authority to determine questions affecting

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the rights of subjects, the Board had a duty to act judicially; that the Club was not given an opportunity to present its case or meet the Board’s objections; that the Board acted unreasonably as the refusal was on imaginary grounds; and that the Board was influenced by extraneous considerations. In that case the Court relied, among others, on the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 233 on the principle of unreasonableness and extraneous considerations. The position has dramatically changed over the past two decades or so. During this period, we have witnessed an increasing number of cases involving administrative law. Over this period many individuals or entities have challenged the constitutionality or legality of Acts of Parliament, Government decisions, and decisions of public bodies having authority to decide questions affecting the rights of citizens in courts of law. Suffice here to mention just two cases decided in the 1980s. The first one is the case of Sheikh Abdulla v. The Regional Police Commander, Dar es Salaam and Others (1985) TLR 1. In this case the President of the United Republic of Tanzania had made an order that the applicant should be deported to Zanzibar from Tanzania Mainland, that is, Tanganyika, under section 2 of the Deportation Ordinance (now Act). The applicant made an application in the High Court which was in the nature of habeas corpus. This is a writ directed to a person who detains another in custody and commands the person to whom it is directed, in this case the respondents, to produce the body of the person so detained before the court for a specified purpose. The applicant challenged the order on the ground that the President had exceeded his powers under the said law. In granting the application, the Court held that a decision or order of the Executive will be pronounced as illegal by the court if such decision or order is ex facie bad, or where the Executive has acted with excess of powers or failed to comply with requirements thereof, or where the Executive has acted in bad faith or has committed a breach of natural justice. The Court added that the President’s order was “gravely flawed” in that the term “Territory” as used in the Act is defined in section 3 of the Interpretation of Laws and General Clauses Act as meaning “Tanganyika”, and so the statute did not empower the President to deport a person to Zanzibar but empowered him to deport a person from one part of Tanganyika to another part of Tanganyika. This case demonstrates to the layman that it is a fallacy to say that the President can do no wrong. A second high-profile case in the 1980s was the case of John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. The background facts of the case were that in 1983, Parliament passed two Acts, namely, the Economic Sabotage (Special Provisions) Acts Nos. 9 and 10. These were enacted following a government decision that all economic saboteurs should be arrested and

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their properties seized. Such people were tried by a Special Tribunal. It was the duty of the Regional branch of Government to decide who should be arrested for being an economic saboteur. That meant that it was the Regional Commissioners and their subordinates who were to implement that law. In the course of implementing that law, the applicant was arrested and most of his property was seized. He was charged before the Special Tribunal with the offence of hoarding. In the end he was acquitted by the Special Tribunal and the Special Tribunal ordered that the applicant’s properties or their value be restored to him. Despite the Special Tribunal’s order and the applicant’s request to the respondents, those properties were not returned to the applicant. The applicant then filed an application in the High Court for an order of mandamus. In his Ruling/Order granting the application, which reads more of a thesis, the learned Judge exalted judicial review as an important weapon in the hands of Judges of this country by which an ordinary citizen can challenge an oppressive administrative action. He dwelt at length on the changes that were taking place in the field of administrative law and the need for Judges to keep abreast with those changes so as to protect the rights of the citizen against the abuse of power which is entrusted to those who have a public duty to decide on the rights of the citizen. He also took the opportunity to state the conditions which ordinarily have to be proved for an order of mandamus to issue; but he was quick to add that those conditions were not immutable since they were made by Judges and so Judges can change them so as to suit changing circumstances in order to effectively protect individual citizens from oppressive administrative action; and that the existence of an alternative remedy is not necessarily a bar to the granting of prerogative orders, although it is one to be taken into account in the court’s exercise of its discretion. In that case the Judge referred to many cases from other jurisdictions and also referred to many authors and jurists. On the question of the law being changed by Judges, for example, the learned Judge referred to a passage in the Speech of Lord Diplock in the case of IRC v. Small Businesses (1982) AC 617, in which Lord Diplock said (page 641): The rules [on prerogative orders] were made by the judges and by judges they can be changed; and so they have been over the years to meet the need to preserve the integrity of the rule of law despite changes in the social structure, method of government and the extent to which the activities of private citizens are controlled by governmental authorities. With regard to the call to judges to change with times so as to safeguard and promote the rule of law, the learned Judge quoted a former Chief Justice of Tanzania, Georges, C.J., who once said:

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In a society which is changing as rapidly as the Tanzania society of today, lawyers and judges should keep under constant critical examination their basic approach to the process of decision-making. If they stand still while the rest of society moves, the unhappy result may well be that they have failed to incorporate into the new pattern of progress the idea that the rule of law has a necessary place in any community where the equality of all men and their human dignity are greatly valued. The 1990s saw an even greater spate of high-profile cases involving administrative law. It is worthwhile to examine a few of them. One such case was that of DPP v. Daudi Pete (1993) TLR 22. That case was, as the Court of Appeal of Tanzania pointed out in its judgment, one of the first three cases to reach the Court of Appeal since Fundamental Rights and Duties embodied in the Constitution of the United Republic of Tanzania by the provisions of section 5 (2) of the Constitution (Consequential, Transitional, and Temporary Provisions) Act, 1984 became enforceable. The case concerned the right to be granted bail in criminal cases; and the submissions in the High Court raised the question of the constitutionality of some of the provisions of the Act then under consideration. The facts of the case, in brief, were that the respondent was charged before the District Court with the offence of robbery with violence. His application for bail in that court was refused on the ground that the provisions of section 148 (5) (e) of the Criminal Procedure Act, 1985 did not permit the granting of bail to accused persons in such cases. The law provided that a person shall not be admitted to bail if the acts or any of the acts constituting the offence with which the person is charged consists of a serious assault causing grievous harm or threat of violence to, another person, or having or possessing a firearm or an explosive. The respondent then applied for bail in the High Court. The High Court granted him bail and went on to strike down the whole of section 148 of the Act for being unconstitutional. The Director of Public Prosecutions then appealed to the Court of Appeal. In dismissing the appeal, albeit for somewhat different reasons, the Court, after considering the provisions of articles 13 (2), 15 (2), 30, and 31 of the Constitution of the United Republic of Tanzania as well as section 148 (4) and (5) of the Criminal Procedure Act, held that section 148 (5) (e) of the Act was violative of article 15 (2) (a) of the Constitution in that it did not fall wholly within the parameters of article 30 of the Constitution because any piece of legislation which falls within the parameters of article 30 of the Constitution is valid, notwithstanding that it may be violative of basic rights of an individual. The Court concluded that the paragraph under consideration was so badly drafted that it protected the society by endangering the soci-

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ety. The Court accordingly struck it out of the statute book for being violative of the Constitution. One of the high-profile cases reported in the 1994 Tanzania Law Reports that deserves mention is the case of James Gwagilo v. Attorney General (1994) TLR 73. The facts in that case were that the plaintiff was a senior civil servant. He was charged with an offence under the Economic and Organized Crime Control Act, 1984 but was acquitted. Thereafter, disciplinary proceedings were instituted against him which also ended in his favour. After that the President of the United Republic of Tanzania ordered that he be removed from office in the public interest. The plaintiff then filed a suit to challenge that order. In a preliminary objection, it was submitted on behalf of the Attorney General that the President could remove a civil servant from office in the public interest and at his pleasure; and that such act could not be inquired into by any court. The High Court overruled the objections holding, inter alia, that the President’s prerogative to dismiss a civil servant at his pleasure or will had been abrogated by the provisions of the Civil Service Act, 1962; and that the President could only dismiss a civil servant in the public interest in accordance with the provisions of section 20 (3) of that Act; and that in any case, reasons must be given. In this case, the Court referred to many local and foreign cases as well as eminent authors. The English case of Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374 was one of the cases referred to. In this case, three broad heads were stated as grounds on which administrative action is subject to control through judicial review. They were set out as “illegality”, “irrationality”, and “procedural impropriety”. It may be pointed out here that English law does not appear at the moment to include principles of natural justice in giving reasons for a decision. But there are voices calling for its inclusion. On this point, in his book Administrative Law (op. cit), Professor Wade states (page 547): It has never been a principle of natural justice that reasons should be given for decisions …. Nevertheless there is a strong case to be made for the giving of reasons as an essential element of administrative justice …. Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review. On this point, in his book Constitutional and Administrative Law (Blackstone Press Ltd.) Brian Thomson writes (page 424):

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The common law has not imposed a duty to give reasons for decisions. Such is the trend in the case law that this position may be overthrown in the not too distant future. One of the high-profile cases reported in our 1995 Law Reports is the case of Rev. Christopher Mtikila v. Attorney General (1995) TLR 31. In this case, the petitioner, a human rights campaigner and political activist, sought many reliefs, among them being a declaration that amendments made to the Constitution of the United Republic of Tanzania had not been validly made as they appeared to infringe an individual’s right to participation in public affairs and freedom of association as guaranteed by the Constitution; to declare a number of statutory provisions as unconstitutional as they infringed rights and freedoms guaranteed under the Constitution: among them being the Political Parties Act, 1992, that was alleged, infringed freedom of association; some provisions in election laws which barred independent candidates to contest in elections; certain provisions in the Newspapers Act, 1976 that were said to be arbitrary and liable to abuse as well as an infringement to the freedom of expression; and certain provisions of the Police Force Ordinance and the Political Parties Act, it was alleged, infringed the right to peaceful assembly and public expression by requiring a permit before holding a public meeting or assembly. The petitioner also sought a pronouncement by the Court as to whether or not the appointment of Zanzibaris to positions on the Mainland on non-Union matters was constitutional. Apart from opposing the petition on substantive grounds, the respondent raised preliminary objections regarding the cause of action, the question of locus standi or standing in public interest litigation the petitioner had in the matter, and the question whether the matters raised were justiceable. In the end the High Court struck down or modified some provisions of the Political Parties Act, Local Authorities (Elections) Act, and the Police Force Ordinance. It was in this case that the High Court declared and directed that it shall be lawful for independent candidates, along with candidates sponsored by political parties, to contest presidential, parliamentary, and local council elections. Parliament, however, neutralized the effect of that judgment by passing Act Nos. 32 and 34 of 1994. Another landmark case was that decided in 1994 – the case of Mhozya v. Attorney General (No. 1) (1996) TLR. 136. In this case the plaintiff had filed a suit in which he sought a declaration, inter alia, that the Constitution of the United Republic of Tanzania had been violated and that the President had allowed and enabled such violation. The plaintiff then filed an application in which he sought an interlocutory injunction restraining the President of the United Republic of Tanzania from dis-

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charging his functions as President pending the determination of the main suit. In its ruling on the application, the High Court held that the removal or suspension of the President from office was the prerogative of the Legislature. There was also the case of Lujuna Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi (1996) TLR 203. In this case, the plaintiff sought a declaration, among others, that Chama Cha Mapinduzi (CCM) was not a political party; an order that it be dissolved; and a declaration that the defendants had no rights to movable and immovable properties which they had “purported to acquire” by using subventions from the Consolidated Fund. The questions which arose in that case, among others, were standing or locus standi in public interest litigation and separation of powers and the law regarding representative suits. After considering several authorities, the Court held that public rights can only be asserted in a civil action by the Attorney General as the guardian of the public interest and that an individual can only assert such rights if he/she can show that he/she has suffered a special damage over and above others as a result of the misconduct complained of, or that there has been an infringement or threatened infringement of his/her private rights; that the case was clearly in the nature of a representative suit and the plaintiff had failed to follow the necessary procedures; and that since the plaintiff had not mentioned any unconstitutionality of the defendants’ act of receiving Government subvention, then the remedy for any wrong allegedly committed by the defendants did not lie in the judicial field. The Court concluded by stating that an assertion that the exercise of every governmental power is subject to judicial scrutiny would not be a sustainable proposition; and that in general the management of public funds, like the management of the economy and foreign policy of the country is the prerogative of the executive: it is not amenable to the judicial process. This holding appears to be in line with the statement of Lord Diplock in the case of Council of Civil Service Unions v. Minister for Civil Service (supra) in which he said (page 411): The reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer; by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which … need to be weighed against one another – a balancing exercise which judges by their upbringing and experience are ill-qualified to perform. In our 1997 Law Reports are also to be found high-profile cases involving administrative law. One case deserves mention. It is the case of Said Juma Muslim Shekimweri

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v. Attorney General (1997) TLR 3. In this case the facts were that the President of the United Republic of Tanzania had ordered the retirement in public interest of the applicant, who was an immigration officer, allegedly for receiving bribes. The order was purportedly made under Article 36 (2) of the Constitution of the United Republic, “Standing Orders” 35, 44, and 49 and section 19 (3) of the Civil Service Act. The applicant filed an application in the High Court for an order of certiorari to bring up and quash the President’s decision. In granting the application, the High Court held that the common law principle that a civil servant is dismissible at pleasure is not part of the law of this country and so the saying “whatever pleases the Emperor has the force of law” forms no part of our law; that no power conferred on a public officer is absolute or limitless but must be exercised in good faith and in accordance with the Constitution and other laws; that in Tanzania the civil servant has some rights, including the right to be afforded an opportunity to show cause why he should not be dismissed from service; and that the provisions of section 23 (1) and (2) of the Civil Service Act do not take away the supervisory jurisdiction of the High Court where it is alleged that the decision made by the President under Article 36 of the Constitution and the provisions of the Civil Service Act is invalid in law. Another landmark case worth mentioning is the case of The Judge In-charge, Arusha and the Attorney General v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 of 1998 (as yet unreported). The facts, in brief, were that the Judge In-charge had assigned six dock briefs to the respondent for High Court Sessions at Babati which the respondent declined to accept. The Judge In-charge then, without further ado, suspended him from practicing as an advocate. He did so under section 22 (2) of the Advocates Act. The respondent sued the appellants and claimed, among other things, that his suspension was illegal; that the Legal Aid (Criminal Proceedings) Act was ultra vires Article 23 of the Constitution of the United Republic of Tanzania and so should be struck down; and that he should be paid damages or compensation. As this case was brought under the Basic Rights and Duties Enforcement Act, the case was heard by a panel of three High Court Judges. The Court found for the respondent and held that the whole of section 4 (2) of the Act which provided for payment of not more than five hundred shillings per dock brief in such cases was unconstitutional to the extent that it provided for unjust remuneration to advocates who render services under that law. On appeal to the Court of Appeal of Tanzania, the Court dismissed the appeal; the Court held that the respondent was condemned unheard; that the remuneration under the Legal Aid (Criminal Proceedings) Act infringed Article 23 (2) of the Constitution which provides that every person who works is entitled to just remuneration; and that principles of fundamental rights should be construed so as to make them meaningful and effective. The Court, however, struck out only that part of section 4 (2) of the

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Act to the extent it stipulates the amounts. The Court further, as what it called a stop-gap measure, replaced those provisions by stating that such advocates should be paid 100,000.00 shillings per dock brief. Between 2001 and 2006, only two high-profile cases need be examined. The first is the case of Julius Ishengoma Francis Ndynabo v. Attorney General, Court of Appeal of Tanzania, Civil Appeal No. 64 of 2001 – as yet unreported – which generated a spirited debate among the intelligentsia and politicians alike. In this case, the facts were that the appellant contested for a parliamentary seat in his constituency in the 2000 general elections. He was unsuccessful. He then petitioned the High Court for nullification of the election results in his constituency. By the provisions of section 111 (2) of the Elections Act, 1985 as amended, a hearing date for his petition could not be fixed unless he deposited five million shillings in Court as security for costs in respect of the petition. The appellant then petitioned the High Court seeking a declaration that that subsection was unconstitutional. By a majority decision, the High Court dismissed that petition. Undaunted, the petitioner appealed to the Court of Appeal of Tanzania. The Court of Apeal allowed the appeal. In its judgment, the Court expounded the principles of constitutional interpretation, the nature of limitations to fundamental rights, frivolous and vexatious litigation, the rights of access to justice, and legislative competence to enact laws. In the upshot the Court held that the Constitution of the United Republic of Tanzania must be construed in tune with the lofty purposes for which its makers framed it; that the provisions touching on fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, and the will and dominant aspirations of the people prevail; and that until the contrary is proved, a legislation is presumed to be constitutional and so the onus is upon those who challenge it in the absence of a claw back clause. In conclusion, the Court held that bearing in mind the minimum wage in the Civil Service, it was utterly impossible for an indigent voter to pay five million shillings as required by the section, and to that extent, the provision denies access to justice to indigent petitioners and so it was unconstitutional. In this case, the Court referred to many cases from various jurisdictions. One of such cases was the South African case of Chief Direko Lesapo v. North West Agricultural Bank and Another, Case CCT 23/99 in which Mokgoro, J., talking about the right of access to courts, said: The right of access to court is indeed foundational to the stability of an ordinary society. It ensures the peaceful regulated and institutionalized mechanisms to resolve disputes, without resorting to self help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy

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which it causes. Construed in this context of the rule of law and the principle against self help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable. Finally, there is the recent case of 1. The Legal and Human Rights Centre (LHRC), 2. Lawyers Environmental Action Team (LEAT), 3. National Organization for Legal Assistance (NOLA) v. The Attorney General {High Court of Tanzania (at Dar es Salaam) Miscellaneous Civil Cause No. 77 of 2005} heard and decided by a Bench of three High Court Judges each of whom delivered his or her own ruling. The petitioners petitioned the Court under the provisions of sections 4 and 5 of the Basic Rights and Duties Enforcement Act (Cap. 3, RE 2002), Article 64 (5) of the Constitution of the United Republic of Tanzania, 1977 as well as section 95 of the Civil Procedure Code, 1966. All the petitioners were charitable, voluntary, and non-partisan human rights interested non-governmental organizations registered under the Companies Act (Cap. 212 RE 2002).The petitioners challenged the constitutionality of what they wrongly cited as section 98 (1) and (2) of The Elections Act, 1985 as amended by The Electoral Laws (Miscellaneous Amendments) Act, No. 4 of 2000. Currently the Elections Act is known as The National Elections Act (Cap. 343, RE 2002); and the provisions that were being challenged ought to have been cited as sections 119 (2) and 119 (3) of that Act, which the Court referred to as the “takrima provisions”. The Court, however, relying on the provisions of Article 107 A of the Constitution of the United Republic of Tanzania, 1977 as amended from time to time, which requires courts to do substantial justice and not to be bound by technicalities in their decision-making, took the view that those irregularities were curable. After considering many landmark decisions, both local and foreign, the Judges unanimously held that the term “person” as defined in the Interpretation of Laws and General Clauses Act (Cap. 1, RE 2002), included corporate bodies like the petitioners; that on the basis of the authorities – among them Mtikila’s case (supra), the petitioners had locus standi or standing; that the petitioners had a cause of action; that the “takrima provisions” were discriminatory in two senses, namely (1) that they discriminated between a high-income-earner candidate and a low-income-earner candidate in that the high-income-earner candidate is placed at an advantageous position to win the election at the detriment of the low-income-earner candidate and (2) because those provisions legalized actions done between a selected category of persons, that is, political candidates and voters, while if the same action is done by other categories of persons standing in similar relations to those actions become offensive, and so there can be no equality before the law. The Judges went on to hold that, on the basis of the principle of proportionality as expounded in the cases of Ole Pumbun and

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Daudi Pete (supra), the “takrima provisions” had no lawful object, were unnecessary and of no societal interest. The Court accordingly declared that the “takrima provisions” were violative of Articles 13 (1) and (2), and 21 (1) and (2) of the Constitution, and so the court ordered that the same be struck out of The National Elections Act, Cap. 343, RE 2002. The foregoing are, but, a few of the high-profile or landmark cases that have been decided by the courts which involved Administrative Law. These developments have brought to the fore the importance of Administrative Law in the every-day life of the ordinary citizen, thus engendering the need for more literature on the subject, even if in a nutshell, so that more and more people understand it for their own benefit; and also so as to persuade students of law to adopt a more positive attitude to this branch of the law as opposed to their current somewhat lethargic attitude to it. It is also hoped that this book will act as a wake-up call to all those who have been entrusted with the duty of making decisions affecting the rights of citizens to update themselves so as to discharge their duties correctly and in the spirit of good governance. To achieve these objectives, this book covers high-profile and landmark cases in topical areas of constitutional and administrative law from colonial days to the present time, namely procedures in applying for prerogative remedies, constitutional principles and human rights; separation of powers between the Executive, the Legislature, and the Judicature; natural justice and the rule of law, statutory ouster of jurisdiction of courts; and the right to legal representation. Some cases cover more topics than the chapter in which they appear. That has been inevitable. Hence their position in the book has been determined largely by what appears to be the dominant topic in the case. The reader, however, will find assistance in the list of cases appearing toward the end of the book under the heading: Cases on Specific Legal Themes.

CHAPTER ONE PROCEDURE IN APPLICATIONS FOR PREROGATIVE ORDERS Introduction What this chapter contains are cases which deal mainly with procedural matters in applications for Prerogative Remedies. Many such applications have foundered for the simple reason that the applicants did not comply with the correct procedure. One such procedural requirement is that an applicant seeking prerogative remedy must first obtain leave of the court to make such an application. This requirement is justified on the basis that it acts as a “filtering device” in that it guards against unmeritorious applications by busybodies; thus the High Court is not inundated by such applications. Whether this requirement for leave to apply for prerogative remedies should be insisted upon in all cases even when there is an urgent matter needing a temporary injunction seems to be questionable. It is submitted that the better practice would be to give the court discretionary power to waive the requirement in deserving cases where the mischief sought to be challenged might cause irreparable harm to the applicant if not checked timeously. That appears to have been the view of the Court in the case of V.G. Chavda v. The Director of Immigration Services (1995) TLR 125 (infra), in which the Court held that the High Court has power to grant an interim interlocutory injunction before hearing an application for leave for a prerogative order even against a decision of the Government. Be that as it may, from the authorities, it is clear that among matters which the courts consider in applications for leave to apply for prerogative orders or remedies include (1) whether the facts contained in the affidavit in support of the application, if true, would constitute a reasonable ground for the form of relief sought; (2) whether the applicant has a sufficient interest in the matter to which the intended application relates; (3) whether on the facts the application will raise an arguable or prima facie case; (4) whether the applicant has not been guilty of dilatoriness; and (5) whether there is no other speedy and effective remedy available to the applicant and,

1

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if such alternative remedy is available, whether, prima facie, judicial review is a better way of obtaining the relief sought. The cases dealt with in this chapter emphasize the need, on the part of statutory bodies or inferior tribunals to comply with provisions which confer on them the requisite jurisdiction. On this point the Court of Appeal of Tanzania somewhat widened the scope of administrative law in Tanzania by adopting the principles enunciated in the English case of Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 – also in (1969) All ER 28, and in (1969) 3 WLR 163. In that case, Lord Pearce said (page 213 of the Weekly Law Reports): Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged in a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these would cause its purported decision a nullity. In the same case, Lord Reid said (page 213): If they base their decision on some matter which is not prescribed for their adjudication, they are doing that which they have no right to do and … their decision is a nullity. Other cases covered in this chapter are those dealing with the requirement of giving a notice to interested parties by statutory bodies before doing any act which might adversely affect other people; when and toward whom mandamus or certiorari will lie; the need to properly identify persons who may be adversely affected; standing or locus standi; adequate safeguards in statutory provisions; and the need to establish a prima facie case in an application for leave to apply for prerogative orders.

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3

The Republic ex parte Shirima v. Kamati Ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner and The Attorney General [High Court of Tanzania] [1983] TLR 375 [Lugakingira, J.] Prerogative orders – Leave to apply for prerogative order, necessary – Judicial discretion – Statutory law and prerogative relief – Alternative remedy and its efficacy – Court not to grant if it would be a futile exercise – Administrative acts – The prima facie case. Facts: The applicant had been arrested by police and charged with selling goods at above the maximum price. His goods were confiscated and produced in court as exhibits. Subsequently, the charges were withdrawn and the court ordered the goods to be restored to police. The applicant appealed against that order, but before the appeal was heard, the Officer Commanding District told him that the goods were to be sold by the police, his trading licence had been revoked and the applicant had to leave Singida town within a specified period. The applicant successfully applied for orders of certiorari and mandamus to quash the orders of the O.C.D. and to restrain him from carrying out the order of expulsion. He later learnt that the O.C.D. was acting on the orders of the Area Commissioner and the District and Security Defence Committee. The applicant then applied for leave to apply for orders of certiorari and prohibition against the Area Commissioner and the District Defence and Security Committee. Held (rejecting the application): (1)

(2) (3)

I am thus of the respectful view that by reason of long user, coupled with approval, the practice of seeking leave has come to be part of our procedural law (page 381). … a statutory remedy takes priority over but does not exclude a prerogative relief (page 382). I think, with respect, that is a sound summary of the law (Halsbury’s Laws of England, 3rd Edition, Vol. II, pages 107 and 130). I would therefore say, from the totality of these authorities, that the existence of a right of appeal and even the existence of an appeal itself, is not necessarily a bar to the issue of

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(4)

(5)

(6)

(7)

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prerogative orders. The matter is one of judicial discretion to be exercised by the court in the light of the circumstances of each case. Where an appeal has proved ineffective, and the requisite grounds exist, the aggrieved party may seek and the court would be entitled to grant, relief by way of prerogative order (page 383). In the first instance, the applicant’s appeal was only recently filed. There is therefore no question of delay nor is there any question of that procedure being exhausted. Secondly, the appeal is potentially, if all goes well, more effective. It could result in the goods, or their value, being restored to the applicant; but certiorari can only result in quashing the decision to sell them and no more. Thirdly, and more seriously, the goods have already been sold. There is therefore no decision which can be arrested by certiorari. The same is true of the trading licence. It has already been cancelled. Certiorari cannot issue to grant a new licence. In short, there are no grounds for the applicant to resile from the appeal already filed by him and seek remedy by way of certiorari and, I apprehend the court is not expected to engage in a futile exercise. I have therefore come to the sad conclusion that the intended application for certiorari is superfluous and this court cannot exercise its discretion to entertain it (pages 383–384). The second leg of the second question is whether the court has jurisdiction to entertain the intended application in view of its orders in Miscellaneous Criminal Cause No. 14 of 1981 … I would venture to suggest, however, that the principle to be followed in this regard is the same as where there is a right of appeal. There must exist grounds upon which a second application can be brought and this in my view cannot merely be the existence of other respondents. It has, I think, to be demonstrated that the earlier application has proved ineffective …. Presumably the better course would have been to amend the first application and join the present respondents who, apparently, became known at the hearing of that application. But to require the court to exercise the same powers in parallel applications is not only an exercise in confusion but something I cannot read in law or precedent (page 384). As far as I am aware certiorari, as with prohibition, may issue where an inferior tribunal has wrongly assumed jurisdiction or exceeded jurisdiction in the discharge of judicial functions. It was not suggested, even remotely, that the Area Commissioner or the Kamati ya Ulinzi na Usalama acted as such tribunals or that they did so without or in excess of jurisdiction (page 384). As just stated the Area Commissioner and the Kamati ya Ulinzi na Usalama appear to have acted, if true, in a purely administrative capacity and the applicant’s affidavit does not allege the contrary. The intended application

Procedure in Applications for Prerogative Orders

5

thus fails to disclose a prima facie case for the intervention of the Court. As stated by Biron, Ag. J. as he then was, … there has to be a prima facie case before leave can be granted (page 385). Cases referred to: D.M.T. Ltd v. The Transport Licensing Authority (1959) E.A. 403. Lakaru v. Town Director Arusha, Misc. Civil Appl. No. 56 (1979) (Arusha Registry) (1980) TLR 326. Makule v. The R.P.C. Kilimanjaro, Civ. Appeal No. 87 (1979) (Arusha Registry). Mohamed v. Regional C.I.D. Officer Mbeya, Misc. Crim Cause No. 29 of 1978 (Mbeya Registry) (unreported). Mwakilasa v. The Principal Secretary (Treasury): Misc. Appeal No. 14 (1978) (Arusha Registry) (1978) LRT 38. Re: A.G’s Application (1958) E.A. 482. Re: Fazal Kassam (Mills) Ltd. (1960) E.A. 403. Re: Hirji Transport Service (1961) E.A. 88. Shah Vershi & Co. Ltd v. The Transport Licensing Board (1971) E.A. 289.

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Re Application by Hirji Transport Service [H.M. High Court of Tanganyika] [1961] E.A. 88 [Biron, Ag. J.] Certiorari – Ouster clauses – Leave to apply for. Facts: The applicant firm applied for and obtained a transport licence from the Transport Licensing Authority. A company objected and then appealed to the Transport Appeal Tribunal against the grant of the licence. On 7 June 1960, the appeal was summarily dismissed. On 2 August, the matter again came before the appeal tribunal. The appeal was restored, and later heard and allowed. The applicant then filed an application for leave to apply for the issue of a writ of certiorari to remove into the High Court and quash the order made by the appeal tribunal on August 2, or remove into the Court and quash the order made allowing the appeal. Section 28 (a) of the Transport Licensing Ordinance provided that the decision of the Transport Licensing tribunal “shall be final and conclusive”. Held (granting the application): (1)

Although by section 28 (a) of the Transport Licensing Ordinance … Any decision of the tribunal under the provisions of this section shall be final and conclusive.

(2)

it will not, I think, be disputed that certiorari will lie. In this respect it is pertinent to refer to the case of the an Application by Nagindas Himabhai Desai (1954), 2 T.L.R. (R) 192, wherein it was held that certiorari will lie from a decision of the then Milling Licensing Appeal Tribunal, although the provisions of the Ordinance relating to decisions of that tribunal, apparently ousting the jurisdiction of the courts to review decisions of the tribunal, were, I consider, couched in stronger language than the corresponding provisions in the Transport Licensing Ordinance above quoted (pages 88–89). Although … the court could on this application order the issue of a writ of certiorari I propose to confine myself to the application as brought, that is, for leave to apply for the issue of a writ. For the applicants to succeed on such

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(3)

7

application it is sufficient for them to establish a prima facie case for the issue of a writ (page 89). On the face of the record, the appeal tribunal in restoring the appeal, appear to have acted without jurisdiction, as it will not, I think, be disputed that once the appeal tribunal has properly dismissed an appeal, it has no power to restore it, and on the face of the record there would appear to have been an appearance by the appellant company when the appeal was dismissed. In the circumstances I consider that the applicant firm has made out a prima facie case for the issue of a writ of certiorari to remove into this court and quash the order of the appeal tribunal made on August 2, restoring the appeal it had dismissed (page 90).

Case referred to: Re an Application by Nagindas Desai (1954) 2 TLR (R).

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Hotel Africana v. JUWATA [Court of Appeal of Tanzania] [1988] TLR 105 [Makame, Kisanga and Omar, JJ.A.] Labour Commissioner’s Reference of dispute to Minister – Minister’s reference to Permanent Labour Tribunal – Procedure – Failure to follow procedure – Jurisdiction, how vested – Consequences of failure to follow procedure. Facts: There was an alleged dispute between the parties. JUWATA was acting on behalf of 225 employees of the appellant. On 13 July, 1987, the Labour Commisioner wrote a letter to the Minister for Labour, copied to JUWATA, Hotel Africana, and Association of Tanzania Employers briefing him on what he reckoned was a trade dispute between Hotel Africana and JUWATA. The letter informed the Minister that under section 9A of the Permanent Labour Tribunal Act the dispute required an enquiry and later the Minister should make a final decision if the Minister was so satisfied. Next day the Minister wrote the Chairman of the Tribunal, copy to Hotel Africana, JUWATA, and others, but not to the Commissioner for Labour stating that he was giving authority to the Tribunal to enquire into the question whether Hotel Africana had in fact terminated the employees and if so, whether such act was lawful. At the Tribunal it was submitted, on behalf of Hotel Africana, that the dispute was not properly before the Tribunal because a wrong provision of the law was used, and so the Tribunal had no jurisdiction in the matter. The Tribunal ruled that it had jurisdiction. Hotel Africana then sought and was granted leave to apply for orders of certiorari and mandamus to remove into the High Court and quash the decision of the Tribunal. The High Court ruled that the procedure adopted for referring the matter to the Tribunal was sustainable, and so it dismissed the application. On appeal to the Court of Appeal, the same question of lack of jurisdiction was raised; and so the appeal centred on the interpretation of sections 4 and 9A of the Permanent Labour Tribunal Act. Held (allowing the appeal): (1)

Assuming {the fact that the Labour Commissioner received information from JUWATA} as correct there was another hurdle the learned judge had to jump

Procedure in Applications for Prerogative Orders

(2)

(3)

(4)

9

and it is this: the report had to be in writing. This is how the learned judge managed the task: he said “And since the report was made by Juwata, the same must have been in writing.” We wish to confess that we find this reasoning rather acrobatic. Quite obviously Juwata makes various reports to various people and not all such reports are in writing. It was required to be in writing but that is long way from saying it must have been in writing. A further probe into section 4 (4) is necessary. It is another pre-requisite that both parties to such dispute apply in writing for the dispute to be referred to the Tribunal for settlement unless, on his own, the Labour Commissioner, after consultation with the parties to the dispute, is of the opinion that the matter should be referred to the Tribunal for settlement without conciliatory measure being taken. In that case he shall report the dispute to the Minister who may do one of two things – under section 4 (4) (a) he may refer the dispute to the Tribunal for settlement … (page 112). We are not satisfied that the various pre-requisites under section 4 (4) were complied with. We think they have to be complied with and that they are there for some purpose (page 112). With great respect, we are not satisfied that the various necessary conditions were satisfied under section 4 (4). And for reasons we have attempted to show, we are of the view that those pre-conditions are indeed necessary preconditions and not useless procedure. Failure to fulfill them is fatal to the process. In the event the Tribunal would have no jurisdiction to inquire into the dispute and such exercise by it would have been a nullity – See Anisminic Ltd. v. Foreign Compensation Commission and Another (1969) 2 WLR 163 (pages 112–113). The Tribunal has power, it is vested with jurisdiction, only when a dispute is properly before it. If, before, it handled matters not properly taken to its door and no one raised a voice, we can only say that now that someone has challenged the practice it is proper that the matter be considered and adjudicated upon. We are of the considered view that the Minister was wrongly advised to refer the dispute to the Tribunal under section 9A (1) and that he was not legally competent to do so. What was taken to the Tribunal was, as it were, a nothing and the Tribunal had no jurisdiction to enquire into what was not there. It is not a question of mere procedure, it is not a question of “substantial justice;”… it is a question of want of jurisdiction (page 114).

Cases referred to: Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 WLR 163. The King v. Postmaster General ex parte Carmichael (1928) 1 KB 291.

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Dar es Salaam Motor Transport v. The Transport Licensing Authority of Tanganyika and Another [Court of Appeal for Eastern Africa] [O’Connor, P., Gould and Windham, JJ.A.] [1959] EA 403 Tanganyika Order-in-Council, 1920 – Procedure in applying for certiorari – Indian Acts (Application) Ordinance – Period within which to apply for certiorari – Power to adjourn an application for certiorari. Facts: On 11/6/58, the Transport Licensing Authority granted a licence to the second respondent, who was a competitor to the appellant, to operate a third class road service between Dar es Salaam and Morogoro. It was said that the members of the Authority, after hearing the appellant and the second respondent, conducted an investigation, in the absence of the parties, into conditions on the road in question and had based their decision, in part, on that investigation. The appellant then filed an appeal to the Appeal Tribunal under section 28 of the Transport Licensing Ordinance. That appeal was heard by the Appeal Tribunal on 24/9/58. On 11/10/58, the appeal was dismissed, but the appellant was not notified: he only heard about it. On 23/1/59, the appellant filed an application for extension of time to file an application for certiorari to quash the decision of the Transport Licensing Authority. The High Court refused the application on the ground that it should have been made with reasonable dispatch, that is, within six months. The High Court and the parties proceeded on the basis that the matter was governed by O. 59, rule 4(2) of the Rules of the Supreme Court of England, 1938. On appeal to the Court of Appeal for Eastern Africa, the appeal turned upon the question whether the High Court should have extended the time for certiorari, and what was the applicable law. Held (dismissing the appeal): (1)

It was not correct to apply O. 59. That Order was only made in 1938. The English practice and procedure which was imported into Tanganyika by section 17 (2) of the Tanganyika Order-in- Council, 1920, was the practice and procedure obtaining in England at the date of the Order-in-Council, that is to say July 22, 1920. Rule 21 and rule 30 of the Crown Office Rules 1906 were then the governing rules. We are satisfied that there is nothing in the

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(2)

11

Civil Procedure Code of India dealing with certiorari which would oust their application (page 404). The appellants could and should have made their application for certiorari within the six months allowed, if the result of the appeal was not then known. The power to adjourn an application for certiorari until an appeal is determined where the proceeding is subject to appeal, exists in Tanganyika by virtue of s. 151 of the Indian Civil Procedure Code applied by section 17 (2) of the Tanganyika Order-in-Council section 2 of the Indian Acts (Application) Ordinance (Cap 2), and this course would, no doubt, have been taken by the Court. Accordingly, though we thought that the learned judge had been wrong in applying O. 59, r. 4, the basis upon which he had exercised his discretion was correct. We were not persuaded that we should interfere with the learned judge’s discretion, which had been exercised judicially (page 405).

No cases referred to.

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Fatuma Awadh Hind v. Salim Ali [Court of Appeal of Tanzania] [Omar, J. A., Mfalila and Mapigano, Ag. JJ. A.] [1987] TLR 156 Town and Country Planning Ordinance – Publication of Notice, effect of lack of publication – Opportunity to raise objections. Facts: The dispute was over a plot in Ngamiani area, Tanga Municipality. Prior to 1975, it consisted of two plots, Nos. 1 and 15; the first was occupied by the respondent and the second was occupied by the appellant. In 1974, the whole area in which the plots were were resurveyed under Tanga Master Plan Reorganization Scheme, purportedly under the Town and Country Planning Ordinance. As a result the two plots were reorganized and amalgamated. The resulting single plot was then allocated to the appellant. The respondent was dissatisfied and took the matter to court. The resurvey was supposed to be done in accordance with section 27 of the Ordinance, which required publication of a notice of intention to apply the Schedule of the Ordinance. The High Court found for the respondent. The appellant appealed to the Court of Appeal of Tanzania. Held (allowing the appeal): While we were able to say from the evidence … that the Tanga Master Plan existed, there is no way by which we can be satisfied that the provisions of section 27 were complied with unless we see the relevant notice in the Government Gazette. We were referred to none, and none was shown to us. The only conclusion we could reach in the circumstances is that the provisions of section 27 were not complied with before the provisions of the Third Schedule were applied to Ngamiani area. Consequently, the pooling and redistribution of the plots in the area including plots Nos. 1 and 15 was unlawful and therefore invalid. The main reason for the mandatory requirement to publish a notice of intention to apply the provisions of the Third Schedule to as area {is} so as to afford the inhabitants of the area an opportunity to lodge their objections. In the present case we can see the respondent putting up quite a spirited objection if there had been such a notice. She was not afforded such a chance (pages 162–163). No cases referred to.

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Hans Wolfgang Golcher v. General Manager of Morogoro Canvas Mill Ltd. [High Court of Tanzania] [1987] TLR 78 [Maina, J.] Prerogative orders – Certiorari – Mandamus – Failure to perform a duty – Leave to apply for prerogative orders. Facts: The applicant was employed by Hebox to work for Morogoro Canvas Mill Ltd. On 1 April 1987, Hebox informed him that his contract would expire on 30 April 1987 and would not be renewed. On 10 April 1987, Morogoro Canvas Mill wrote him a letter dismissing him “with immediate effect” and he was also required to vacate the house which he was occupying. The applicant then applied for orders of certiorari, to quash the decision of the General Manager and mandamus, to compel the General Manager to hear him in accordance with rules of natural justice. In filing the application, the applicant had not sought and obtained leave to apply for such prerogative orders. Earlier the Court had granted him a temporary injunction against the General Manager restraining him from evicting the applicant from the house; and an order against the Director of Immigration Services from deporting the applicant. The General Manager as well as the Director of Immigration Services resisted the application. Held (rejecting the application for prerogative orders): (1)

(2)

In all applications for prerogative orders, such as certiorari and mandamus, leave must be sought and obtained before the application for any prerogative order is heard. In my view, the application for temporary injunctions could only be made where leave had been granted by the court … The court proceeded with the hearing of the application on the assumption that leave to apply for orders of certiorari and mandamus had been granted (page 81). The temporary injunction against the Director of Immigration Services can be set aside for another reason. Mandamus can only lie against the Director if it were shown that he had been requested by the respondent to perform certain duties and the Director either failed or refused to perform those duties. There is no such allegation in this case (page 82).

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As for Mandamus, I agree that the applicant General Manager has no public duty to perform. In Halsburys Laws of England, Volume II, Third Edition paragraph 172 at page 54 the learned author states as follows:

Mandamus will lie towards any person or body in respect of anything which pertains to his or their office and in the nature of public duty. The applicant General Manager has no public duty to perform with respect to the respondent’s employment. Furthermore, Mandamus cannot lie where there is some other legal remedy available (page 83). Cases referred to: Alfred Lakaru v. Town Director, Arusha (1980) TLR 326. Devan v. Bhadreasa and Another (1973) E.A. 358. Giella v. Cassman Brown (1973) E.A. 358 Noormohamed Janmohamed v. Kassamali Virji Madhani (1953) 20 EACA 8.

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15

Hanif Ali Ladak and Another v. Regional Prisons Officer [High Court of Tanzania] [1981] TLR 68 [Mnzavas, J.] Deportation Ordinance – Ouster of court’s jurisdiction – Peace and good order – Duty of Courts. Facts: The two applicants were detained in Karanga Prison, Moshi, pending a fit opportunity for their deportation following a Deportation Order issued by the President. Their advocate filed an application for habeas corpus alleging that the applicants were unlawfully detained. It was also alleged, on behalf of the second applicant, that his name was different from that mentioned in the Deportation Order. Subsequently the respondent filed an affidavit sworn by the Area Commissioner showing that the second applicant, described in the warrant as Augustine Minja, was also known as Heaven Matayo Minja. Held (dismissing the application): (1)

(2)

(3)

In my ruling I pointed out that in so far as the first applicant, Hanif Ali Ladak, was concerned, he appeared in that name in the schedule to the deportation order signed by His Excellency the President of the United Republic of Tanzania. This being the position and as clearly stated under Section 3 of the Deportation Ordinance, the Order is not appealable (pages 69–70). To start with I would like to mention that every society must have power to arrest, to search and where necessary to detain those who break its laws or who in own (sic) way or another are dangerous to the peace and tranquility of the society – But all the time efforts must be made to strike a true balance between personal freedom on the one hand and the security of the society on the other. It is the task of the law to keep the necessary balance (page 70). Let me remind the defence counsel that the Deportation Order against the second applicant was issued under section 2 of the Cap 38 which says, inter alia: Where it is shown by evidence on oath to the satisfaction of the President, that any person is conducting himself so as to be dangerous to peace and good order in any part of Tanganyika … or is intriguing against Government, the President may, if he thinks fit by order under his hand and official seal order

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that person to be deported from any part of the Territory to any other part of the Territory. In section 3 of the Ordinance the law says:

(4)

(5)

(6)

Any [sic] appeal will not lie from any order of deportation under this Ordinance. This being the language of the law it is amply demonstrated that once the President is satisfied on evidence on oath that any person is conducting himself so as to be dangerous to peace and good order and orders that person to be deported, the court has no power to question the correctness or propriety of the order. Under section 5 of the Deportation Ordinance a person served with a deportation order is lawfully detained if he is put in custody or prison, until a fit opportunity for his deportation occurs (pages 70–71). It is my view that we, the judges, should always pay regard to the gravity of the decisions taken by those who are responsible for forming the life of the nation under hard pressure of reality. This is especially so when the court takes into consideration that the test under which both applicants came to be detained is purely subjective (page 71). Now that I am fully satisfied that the Administrative Authorities in the district have no doubt regarding second applicant’s identity this court has no power to question the decision of His Excellency the President, based as it is, under Section 2 of the Deportation Ordinance. Indeed as I have already mentioned above this court’s jurisdiction in such matters is ousted by section 3 of the Ordinance; which is to the effect that “an appeal shall not lie from any order of the Deportation Ordinance”. The role of courts in society is to keep order and to do justice. Courts must not, as it was said by one learned English Judge, “thwart the laws of the land by overlegalistic constructions”… I am satisfied … that like the first applicant, Hanif Ali Ladak, the second applicant, Heaven Matayo Minja, is lawfully detained under the Deportation Ordinance, Cap. 38 of the laws.

Case referred to: Liversidge v. Sir John Anderson (1942) AC 206.

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17

V.G. Chavda v. Director of Immigration Services and Another [High Court of Tanzania] [1995] TLR 125 [Samatta, J.K.] Administrative Law – Prerogative orders – Ad interim injunctive orders pending grant of leave – Injunctive orders against Government – Jurisdiction of the High Court – Meaning of section 11 of the Government Proceedings Act. Facts: The applicant had been given a deportation order by the Minister for Home Affairs under the Immigration Act. He then filed in the High Court an application seeking (1) leave to apply for orders of certiorari, mandamus, and prohibition and (2) an injunction restraining the Minister and the Director of Immigration Services, pending the disposal of the first application, from detaining or deporting him. The application for temporary injunctive relief was heard a day before the application for leave was heard. A Senior State Attorney argued on behalf of the respondents that the Court had no power to grant an interim order for injunction before granting leave to apply for orders of certiorari, mandamus, and prohibition. The Court rejected that argument and made an interim order restraining the first and second respondents from detaining or deporting the applicant pending the disposal of the application for injunctive relief. Six days later, when the application for temporary injunctive relief was called on for hearing, the Senior State Attorney raised a point in limine that under section 11 of the Government Proceedings Act the Court had no power to make an interim injunctive order against the Government, its Ministers or officials. Held (rejecting the preliminary objection): (1)

Thus, constitutional proceedings and proceedings which are instituted under this Court’s supervisory jurisdiction, that is to say, the jurisdiction to supervise statutory and domestic tribunals conferred on the Court by section 17 (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) as amended by the Law Reform (Fatal Accidents and Miscellaneous Provisions Ordinance (Amendment Act) 1968, must be held to be excluded by the term {civil}. The term was intended to have a restricted meaning; it was

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(2)

(3)

(4)

(5)

(6)

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intended to mean civil matters as understood in the traditional sense of the term, that is to say, civil matters that are dealt with under this Court’s general civil jurisdiction. Any statutory provision which purports to restrict this Court’s jurisdiction, including inherent jurisdiction, must, in the interests of everyone living within the territorial boundaries of the United Republic, be construed strictly. The application of that principle in the interpretation of Section 11 of the Act compels me to hold … that the term “civil proceedings” in the subsection does not embrace prerogative proceedings. In my opinion, section 11 is related to private law litigation (page 131). It is a rule of constitutional interpretation that if the court can decide a case before it on non-constitutional grounds, that course should be preferred (page 131). If, in my opinion, Mr Malaba’s argument on the effect of the subsection were right, personal freedoms and rights would have been placed in great jeopardy, as there would be inadequate judicial protection against unlawful conduct on the part of those who are entrusted with the power of governing this country or determining non-judicially, the rights of individuals. If that situation were to exist, the rule of law in the country would greatly suffer, with the result that members of the public would be tempted to regard the law as being a series of hazards separating the litigant from justice. The courts must do everything possible under the law to prevent that wrong impression of the law being formed. The law should be there to promote and not impede justice. In this country, a decision or order of a government minister or official, regardless of his or her rank, cannot outweigh the law (page 132). Any collision between the freedom of the individual and the security of the state, in any sphere of national life, does not, in my considered opinion, dictate the acceptance of Mr. Malaba’s argument. If the law were as contended by the learned Senior State Attorney, justice would have been wearing a bandage over her eyes as she could not bear to see some of the decisions made in her name in that branch of the law (page 132). If I may repeat what I ventured to say in my earlier ruling, there is no room for doubt that this Court has the power to grant an interlocutory injunction before hearing an application for leave to apply for a prerogative order (page 133). … Section 11 of the Government Proceedings Act does not stand in the applicant’s path in the instant application. Except to autocrats, it must be intolerable that, in a democratic society like ours, courts should be impotent to grant a temporary injunction in favour of an individual who complains of unwarranted or oppressive use of statutory powers by a government minister

Procedure in Applications for Prerogative Orders

19

or official. It should be made perfectly clear, I think, that this Court can halt the bulldozer of the State before it squashes the right of an individual, company or society (pages 133–134). Cases referred to: M. v. Home Office (1993) 3 W.L.R. 433. R. v. Bishop of Oxford (1879) 4 Q.B.D. 245.

CHAPTER TWO CONSTITUTIONAL PRINCIPLES AND HUMAN RIGHTS Introduction In many cases constitutional law and administrative law overlap. Indeed, as stated earlier, the main source of administrative law is constitutional law. As Prof. Wade points out (page 6): The whole of administrative law, indeed, may be treated as a branch of constitutional law, since it flows directly from the constitutional principles of the rule of law, the sovereignty of Parliament and the independence of the judiciary; and it does much to determine the balance of power between the state and the citizen. That is the nature of cases digested in this chapter; hence the title. The cases deal with constitutional principles and fundamental human rights, basic rights and duties, such as the right of association and the right to participate in public affairs, the doctrine of proportionality and reasonableness, doctrine of separation of powers, parliamentary power and its limitations, removal of the President from office, public interest, the right to be heard, relator actions and locus standi, unimpeded access to courts of law, removal in public interest, striking down statutes, legitimate expectations, liability of civil servants for torts committed in the course of their employment, and the need to give reasons for decisions. On the question of giving reasons for decisions, our law appears to be ahead of English law. However, there are voices in England calling for adopting it as part of the principles of natural justice. One of such voices is that of Prof. Wade who has stated (page 547): It has never been a principle of natural justice that reasons should be given for decisions. There appears to be no such rule even in courts of law themselves and it has not been thought suitable to create one for 21

22

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administrative bodies. Nevertheless there is a strong case to be made for the giving of reasons as an essential element of administrative justice. The need for it has been sharply exposed by the expanding law of judicial review, now that so many decisions are liable to be quashed or appealed against on grounds of improper purpose, irrelevant considerations, and errors of law of various kinds. Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review … since the giving of reasons is required by the ordinary man’s sense of justice. It is also a healthy discipline for all those who exercise power over others. In many of the cases digested in this chapter, the courts have taken the opportunity to state the grounds on which an administrative action will be subject to review; and some important English decisions have been cited and relied upon. One of such English cases is that of Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374 which crystallized the principle of legitimate expectations and how it may arise; how an administrative decision may qualify for judicial review; and stated three broad heads as grounds on which an administrative action is subject to judicial review, namely “illegality”, “irrationality”, and “procedural impropriety”. There is an erroneous assumption on the part of some public servants that they are immune from being sued in their personal or private capacity for torts allegedly committed by them in the course of their official duties. That assumption has been squelched by case law. One such case is that of Rev. Christopher Mtikila v. The Editor, Business Times and Augustine Lyatonga Mrema (1993) TLR 60 (infra). In that case the High Court held that there is no legislation which expressly or by necessary implication takes away the right of a citizen or other person enjoying the protection of the law of this country to sue a Government’s servant or agent who, in the course of his official duties, has allegedly committed a tort against him. In this regard, our law appears to be the same as the English law. Writing on this topic, Prof. Wade points out (pages 751–752): Public authorities, including ministers of the Crown, enjoy no dispensation from the ordinary law of tort, except in so far as statute gives it to them. Similarly they are subject to the ordinary law of master and servant by which the employer is liable for torts committed by the employee in the course of his employment, the employee also being personally liable.

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23

Rev. Mtikila v. Attorney General [High Court of Tanzania] [1995] TLR 31 [Lugakingira, J.] Constitutional law – Interpretation – Standing – Public law litigation – Bona fide petition – Effective remedy – Fundamental rights – Section 8 C.P.C. – Power of Parliament to enact laws – Right of association and participation in public affairs – Fundamentality of fundamental rights – Arbitrariness – Safeguards – Severability of statutory provisions - Doctrine of public interest litigation. Facts: The petitioner, a human rights campaigner and a political activist, invited the court to consider whether certain amendments to the Constitution, namely the eighth Constitutional Amendment Act, 1992 (No. 4) were validly made as they appeared to infringe the right to participation in national public affairs and freedom of association as guaranteed by the Constitution. He also invited the Court to declare as unconstitutional some provisions of the Political Parties Act, 1992, the Newspapers Act 1976, and the Police Force Ordinance, Cap. 322, for infringing rights and freedoms guaranteed under the Constitution. He also sought a declaration as to whether or not the appointment of people from Zanzibar to Offices in Mainland Tanzania dealing with non-union matters was constitutional. The petition also raised the question of locus standi, cause of action and justiciability of some of the issues raised. Held (granting some of the prayers and declining others): (1)

(2)

Given all these circumstances, if there should spring up a public-spirited individual and seek the Court’s intervention against a legislation or actions that pervert the Constitution the Court, as guardian and trustee of the Constitution and what it stands for, is under an obligation to rise up to the occasion and grant him standing (page 43). This provision [Article 30 (3) of the Constitution], in my view, caters for both personal and public interest litigation for at times the two may prove inseparable. A person who sues because he desires to be an independent parliamentary candidate where the system does not so allow necessarily

24

(3) (4)

(5)

(6) (7)

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shoulders the burden for the public. It is also important to note that under this provision action lies where a person’s right ‘has been, is being or is likely to be contravened.’ These are plain and clear words which admit no controversy. Standing is therefore available under the Constitution even where contravention of a basic right is reasonably apprehended …. In the upshot it is not correct to say … that the petitioner has no locus standi because he cannot show that his rights have already been infringed. In my view he is within the purview of art 30 (3) if there is in existence a law the operation of which is likely to contravene his basic rights (page 44). I hold art 26 (2) to be an independent and additional source of standing which can be invoked by a litigant depending on the nature of his claim (page 45). … a proceeding may be instituted to challenge either the validity of a law which appears to be inconsistent with the Constitution or the legality of decision or action that appears to be contrary to the Constitution or the law of the land. Personal interest is not an ingredient in this provision; it is tailored for the community and falls under the sub-title ‘Duties to the Society.’ It occurs to me, therefore, that art 26 (2) enacts into our Constitution the doctrine of public interest litigation. It is then not in logic or foreign precedent that we have to go for the doctrine; it is already with us in our own Constitution (page 45). I hasten to emphasize, however, that standing will be granted on the basis of public interest litigation where the petition is bona fide and evidently for the public good and where the court can provide an effective remedy …. It is not the type of litigation which is meant to satisfy the curiosity of people, but it is a litigation which is instituted with a desire that the court would be able to give effective relief to the whole or a section of the society. It is emphasized … that the condition which must be fulfilled before public interest litigation is entertained by the court is that the court should be in a position to give effective and complete relief. If no effective or complete relief can be granted, the court should not entertain public interest litigation (pages 45–46). In this petition the dispute is over the validity of various laws and this, in my view, constitutes the necessary cause of action (page 46). As stated earlier the issue of immutability turns on Parliament’s power to amend the Constitution. In assessing this power it is appropriate to recall, in the first place, that fundamental rights are not gifts from the State. They inhere in a person by reason of his birth and are therefore prior to the State and the law. In our times one method of judging the character of a government is to look at the extent to which it recognizes and protects human rights. The raison d’ tre for any government is its ability to secure the welfare

Constitutional Principles and Human Rights

(8)

(9)

(10)

(11)

25

of the governed. Its claim to the allegiance of the governed has to be in terms of what that allegiance is to serve. Allegiance has to be correlative with rights. Modern constitutions like our own have enacted fundamental rights in their provisions. This does not mean that the rights are thereby created; rather it is evidence of their recognition and the intention that they should be enforceable in a court of law. It can therefore be argued that the very decision to translate fundamental rights into a written code is by itself a restraint upon the powers of Parliament to act arbitrarily (page 49). I have therefore come to the conclusion … that Parliament’s power of amendment are (sic) not unlimited. It should be recognized, on the other hand, that society can never be static. New times bring with them new needs and aspirations, Society’s perception of basic human rights is therefore bound to change according to changed circumstances, and that makes it imperative for Parliament to have power to alter every provision of the Constitution. What remains immutable, therefore, is the ethic of human rights but not the letter by which they are expressed (page 51). We turn to consider whether the amendments complained of were not within the constitutional limits, beginning with art 20 (2) and (3). The former does not abrogate or abridge beyond the purview of art (30) (2) the right of association guaranteed under art 20 (1). It merely lays down the conditions a political party has to fulfill before registration and all these conditions are within the perimeters of art 30 (2). The conditions are clearly aimed at the promotion and enhancement of public safety, public order and national cohesion. There cannot be any such thing as absolute or uncontrolled liberty wholly freedom without restraint, for that would lead to anarchy and disorder. Indeed, in a young country like ours, nothing could be more suicidal than to licence parties based on tribe, race or religion (pages 51–52). I am satisfied and hold that art 20 (2) and (3) were validly enacted. There remain, however, the provisions of the Political Parties Act which fall for comment under the second issue. Next is art 39 and allied articles and provisions relating to presidential, parliamentary and local council candidacies. Once again I am unfortunate in having to say that these amendments were within the powers of the Parliament. They do not abrogate but merely modify the application of art 21(1) by providing that participation in national public affairs shall be through political parties (page 52). … the provisions of s. 8 of our [Civil Procedure] code are mandatory and provide no room for discretion in circumstances where it is invokable. It is invokable in the instant matter …. The point is that I am bound to stop in my tracks and let the previous suit proceed to finality because the decision on the

26

(12)

(13)

(14)

(15)

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matter in issue would operate as res judicata on the same matter in the suit before me (page 55). Where a provision is reasonable and valid the mere possibility of its being abused in actual operation will not make it invalid …. The provisions [of the Newspapers Act 1976] complained of however, are administrative and implementional and their constitutionality can only be challenged if they were not within the power of the Legislature to enact them (page 55). … I have unfortunately come to doubt the petitioner’s standing in this issue [of the constitutionality of ss 5(2), 13, 25, 37–47 of the Newspapers Act]. As stated before, our Constitution confers a double capacity on every person – his personal and community capacities. Now in what capacity did the petitioner take up these provisions.? It cannot be in his personal capacity because there is nothing in the provisions or any of them which is shown to have contravened, is contravening or is likely to contravene his right to receive or impart information. The contravention has to be read in the provisions themselves. It transpires that the complaint is in fact founded on the banning of the ‘Michapo’ and ‘Cheka’ newspapers …. That is improper. The use or the misuse of the powers granted by s 25 … has nothing to do with the validity of that provision as such. What would be relevant is whether Parliament had no power to grant those powers …. Can we alternatively say that this issue falls under public litigation? I don’t think so either. As seen before, public interest litigation is litigation in the interest of the public. In other words, the general public, or section thereof must be seen to be aggrieved by the state of the law and to be desirous of redress. There could probably be provisions in the Newspaper (s) Act one could consider oppressive, unreasonable and even unconstitutional, but that is beside the point; the point is that there is no evidence of public agitation against that law (pages 55–56). … courts are not authorized to make disembodied pronouncements on serious and cloudy issue of constitutional policy without battle lines being properly drawn. Judicial pronouncements cannot be immaculate legal conceptions. It is but right that no important point of law should be decided without a proper issue between parties properly ranged on either side and crossing of the swords. It is inexpedient for the Court to delve into problems which do not arise and express opinion thereon. In the premises I decline to pronounce on the third issue {on constitutionality of ss. 5(2),13, 25, 37–47 of the Newspapers Act, 1976} (page 56). The Constitution is the basic or paramount law of the land and cannot be overridden by any other law. Where, … the enjoyment of a constitutional right is ‘subject to the laws of the land,’ the necessary implication is that those

Constitutional Principles and Human Rights

(16)

(17)

27

laws must be lawful laws. A law which seeks to make the exercise of those rights subject to the permission of another person cannot be consistent with the express provisions of the Constitution for it makes the exercise illusory. In this class are S. 40 of the Police Force Ordinance and S. 11 (1) of the Political Parties Act. Both provisions hijack the right to peaceful assembly and procession guaranteed under the Constitution and places it under the personal disposition of the District Commissioner. It is a right which cannot be enjoyed unless the District Commissioner permits …. Section 40 does not meet the (Ole Pumbun) requirements. It is in the absolute discretion of the District Commissioner to determine the circumstances conducive to the organization of an assembly or procession; there is no adequate or any safeguards against arbitrary exercise of that discretion and there is no mechanism for challenging his decisions, except probably by way of judicial review which is tortuous and unbeneficial for the purpose of assemblies and processions. I have easily come to the conclusion that the requirement for a permit infringes the freedom of peaceful assembly and procession and is therefore unconstitutional (pages 58–59). Coming to s 41, I am of the view that the provision does not operate to take away the right to hold assemblies or processions; it only impowers the police and the magistracy to step in for the preservation of law and order. The provision is thus saved by art 30 (2) (b), it being in furtherance of the State’s normal functions of ensuring public safety and public order and is reasonably justifiable in a democratic society …. Moreover, there is inherent in the provision a safeguard against arbitrary use. It comes into play when the holding or continuance of an assembly or procession ‘is imminently likely to cause a breach of the peace, or to prejudice the public safety or the maintenance of public order or to be used for any unlawful purpose’, and therefore meets what is termed the ‘clear and present danger’ test (page 59). At this stage I will proceed to show the significance of the distinction I have been making. I have held that the requirement for a permit is unconstitutional but not the police magisterial and penal role. The crucial question now is whether these aspects can be severed. Severance is provided for under art 64 (5) which states that ‘any other law inconsistent with the provisions of the Constitution … shall, to the extent of the inconsistency, be void’. It is therefore established that where the valid portion is severable from the rest, that portion will be maintained provided it is sufficient to carry out the purpose of the Act …. I am in no doubt whatsoever that the permit aspect can be expunged and expelled from the law without prejudicing the rest. This is illustrated by the fact that the supervisory aspects already operate

28

(18)

(19)

(20)

(21) (22)

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independently where a permit is not required. It is evident, therefore, that the Legislature could have enacted the supervisory aspects without enacting the permit aspect. Having held, and I repeat, that the requirement for a permit is unconstitutional and void, I direct the provisions of s 40 of the Police Force Ordinance and s 11 (1) (a) of the Political Parties Act, and all provisions relating thereto and connected therewith, shall henceforth be read as if all reference to a permit were removed. It follows that from this moment it shall be lawful for any person or body to convene, collect, form or organize and address an assembly or procession in any public place without first having to obtain a permit from the District Commissioner. Until the Legislature makes appropriate arrangements for this purpose, it shall be sufficient for a notice of such assembly or procession to be lodged with the police, being delivered a copy to the District Commissioner for his information (page 61). It is established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be involved at all. The Court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so (page 62). As generally understood the citizen’s right to participate in the government of his country implies three considerations: the right to the franchise, meaning the right to elect his representative; the right to represent, meaning the right to be elected to law making bodies; and the right to be chosen to a political office. These three rights are, in my view, epitomized in the provisions of art 21(1), subject, of course, to the qualifications which expediency may dictate for the exercise of these rights, e.g. literacy and age (pages 63–64). It is illogical for a law to provide that no person shall be compelled to belong to a political party and in the same breath to provide that no person shall run for office except through a political party. If it were the intention of the Legislative to exclude non-party citizens from participating in the government of their country, it could easily have done so vide the same Eight Constitutional Amendment Act by removing the generality of art 21 (1) (pages 64–65). … it is the fundamental rights which are fundamental and not the restrictions (page 66). First, art 39 (c) and allied amendments are restrictions on the exercise of a fundamental right and not fundamental in themselves. It is the fundamental right, but not their restrictions, that this Court is enjoined to guard jealously. Secondly, the scheme of our Constitution contemplates the full exercise of the fundamental rights enacted therein save as they may be limited in terms of the provision of art 30 (2)and art 31 (1). Although the amendments pass the test

Constitutional Principles and Human Rights

(23)

(24)

29

of validity by virtue of the very wide definition of ‘alteration’ in art 98 (2), it is only tenuously that they come within the ambit of art 30 (2). Thirdly, the literal application of the amendments could lead to monstrous and nationally injurious results. It is believed that there are between three and four million people in this country who subscribe to some political party, leaving well over twenty million a free decision in the government of their country is unjust, monstrous and potentially calamitous. Fourth, it must be said that any talk of ‘parties’ at this juncture in the country’s history cannot be serious. Apart from Chama Cha Mapinduzi whose presence is all pervasive, the rest exist more in name than in practice. The amendments therefore are capable of being abused to confine the right of governing into the hands of members of a class and to render illusory the emergence of a truly democratic society. I do not wish to believe that that was the intention of the Legislature. Finally, art 21 (1) can in fact operate alongside art 39 and allied amendments, without the latter’s exclusionary properties, there being nothing strange in having party and independent candidates in any election (page 67). For everything I have endeavoured to state and notwithstanding the exclusionary elements to that effect in arts 39, 67 and 77 of the Constitution as well as s 39 of the Local Authorities (Elections) Act, 1979, I declare and direct that it shall be lawful for independent candidates, along with candidates sponsored by political parties, to contest presidential, parliamentary and local council elections … (page 68). And since the Constitution also recognizes the necessity ‘for the effective division of functions’ in the discharge of public affairs in the United Republic, the appointment of Zanzibaris to positions of authority in non-union matters in the Mainland could have the effect of blurring that division.

That said, however, it is difficult to draw the inference of unconstitutionality, which the court was called upon to draw, in relation to those appointments …. A breach of the Constitution, however, is such a grave and serious affair that it cannot be arrived at by mere inferences, however attractive and I apprehend that this would require proof beyond reasonable doubt. I have therefore not found myself in a position to make the declaration sought and I desist from doing so (page 70). Cases referred to: A.G. of Alberta v. A.G. of Canada (1947) AC 503. A.G. of Bendir State v. A.G. of Nigeria (1982) 3 NCLRI 88. A.G. of Gambia v. Jobe (1985) LRC (Const.) 556.

30

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A.G. v. W.K. Butambala (1993) TLR 46 (C.A). Adediran v. Interland Transport Ltd (1991) 9 NWLR 155. Adesanya v. President of Nigeria and Another (1981) 1 All NL 1. Benazir Bhutto v. Federation of Pakistan, PLD (1988) SC 46. Blackburn v. A.G. (1971) 2 All ER 1380. British Coal Corporation v. The King (1935) AC 500. C. Mtikila and Others v. Republic, High Court at Dodoma Cr. App. No. 90 (1992) (unreported). C.R. Ramson v. Llyed Barker and the A.G. (1983) 9 CLB 1211. Chief Isagba v. Alege (1981) 2 NCLR 424. Collector of Customs (Madras) v. N.S. Chetty, AIR (1962) SC 316. Gouriet v. Union of Post Office Workers (1978) AC 435. D.P.P. v. Daudi Pete (1993) TLR 22. Golaknath v. State of Punjab (1967) 2 SCR 762. Haji v. Nungu and Another (1987) LRC (Const.) 224. Hariram v. Hazi Mohamed (1954) Allah 141. IRC v. National Federation of Self-employed and Small Businesses Ltd (1981) 2 All ER 93. James v. Australia (Commonwealth) and New South Wales (State) (1936) AC 578. Javda Karson v. Harman Singh Bhogal (1953) 20 EACA 74. Jinnat Bibi v. Howeah Jute Mills Co. Ltd. (1932) AIR Cal. 751. Kesavananda v. State of Kerela (1973) Supp. SCR 1. Kukutia Ole Pumbun v. A.G. (1993) TLR 159. Minister of Home Affairs v. Hickke and Others (1985) LRC (Const.) 755. Minister of Justice V. Borowski (1981) 2 SCR 375. Muhamad Nawaz Shariff v. President of Pakistan (1993) PLD DC 473. Nova Scotia Board of Censors v. McNeil (1976) 2 SCR 265. Olawayin v. A.G. of Northern Nigeria (1961) All NLR 269. Peoples Union for Democratic Rights v. Minister of Home Affairs (1985) AIR Delhi 268. Prahalad Jena v. State (1950) AIR Orissa 157. R. v. Metropolitan Police Commissioner, ex parte Blackburn (1968) 2 Q.B. 118. Raj Spinning Mills v. A.G. King (1954) A. Punj. 113. Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd (1983) AIR SC 239. Sturat v. Crowninshield (1819) 4 Law Ed. 529. Thomas and Others v. Lufoseye (1986) R.C. (Const.) 639. Thorson v. A.G. of Canada (1975) 1 SCR 138. Wahid Manwar Khan v. State (1956) AIR Hyd. 22.

Constitutional Principles and Human Rights

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Thomas Mjengi and Another v. Republic [High Court of Tanzania] [1992] TLR 157 [Mwalusanya, J.] Constitutional law – Derogation clause – Test of proportionality or reasonableness – Adequate safeguards. Facts: The two appellants were convicted of the offence of robbery with violence and were each sentenced to 30 years imprisonment. On appeal to the High Court, they were granted legal aid under section 3 of the Legal Aid (Criminal Proceedings) Act, 1969. An advocate was accordingly assigned to prosecute the appeal. The advocate filed an amended memorandum of appeal in which he raised matters involving the interepretation of the Constitution of the United Republic of Tanzania, basic freedoms and rights, and the constitutionality of the Minimum Sentences Act, 1972 as amended by Act No. 10 of 1989. One of the grounds of appeal stated that the trial was a nullity as the appellants were denied their right to free legal aid at the expense of the State; and another ground was that the provisions for the minimum sentence of 30 years imprisonment and corporal punishment provided for under the Minimum Sentences Act were unconstitutional as the sentence amounted to inhuman and degrading punishment. Held (declaring the Minimum Sentences Act unconstitutional): (1)

(2)

(3)

… any derogation clause must meet the proportionality test or reasonableness …. For the derogation clause to apply to a given situation it must be shown that it is required by compelling social need and that it is so framed as not to limit the right in question more than is necessary to achieve a legitimate objective (page 174). A derogation clause should not be interpreted as entitling the government to impose vague or arbitrary limitations on basic human rights but that limitation should be reasonable and only be invoked when there exists adequate safeguards and effective remedies, against abuse. In other words, a derogation provision must be construed narrowly (page 174). In any case the mandatory minimum sentence of 30 years imprisonment under the Minimum Sentences Act No.1/1972 as amended by Act

32

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no.10/1989 is unconstitutional and void because it is inhuman and degrading punishment (page 176). Cases referred to: A.G. v. Lesinoi Ndeinae (1980) TLR 214. Alimasi Kalumbeta v. R. (1982) TLR 329. D.P.P. v. Daudi Pete (1993) TLR 22. D.P.P. v. Rugaimukamu (1982) TLR 139. Dube v. The State (Zimbabwe) Supreme Court Judgment No. 212/1988. Joshwa Nkonoki v. R. (1978) LRT No. 24. Laurent Joseph v. R. (1981) TLR 351. Maneka Gandhi v. Union of India (1978) 2 SCR 248. Mohamed Salim v. R. (1958) EA 202. Mugema v. R. (1967) EA 676. Powell v. Alabama (1937) 287 US 45. Rilay v. A.G. of Jamaica (1982) 3 All ER 469. The State (Healey) v. Donoghue (1976) IR 325. Weems v. United States (1910) 217 US 86.

Constitutional Principles and Human Rights

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Shaban Khamis Mloo and Others v. The Superintendent of Zanzibar Prisons and Another [High Court of Zanzibar] [1991] TLR 21 [Hamid, C.J.] Prerogative orders – Union and Zanzibar Constitutions – Preventive detention laws – Reasons for detention. Facts: The applicants were detained under an order of the Zanzibar President made under section 2 of the Zanzibar Preventive Detention Decree No. 3 of 1964 on the grounds that the applicants be prevented from endangering peace and security of Zanzibar by their acts of inciting the citizens to disrupt the general elections of 1990. The applicants filed an application in the Zanzibar High Court for directions in the nature of habeas corpus under section 361 (6) of the Zanzibar Criminal Procedure Decree, Cap. 14 of the Laws of Zanzibar. On behalf of the applicants it was argued that detaining a person on the grounds of security could only be ordered by the President of the United Republic of Tanzania under the Preventive Detention Act, No. 60 of 1962 as amended by Act No. 2 of 1985. Held (granting the application): (1)

(2)

(3)

This Court agree (sic) with Mr. Lipiki, the counsel of the applicants, that the Preventive Detention Decree, No. 3 of 1964 of Zanzibar comprises matters relating to defence and security which (sic) at the same time the Parliament of the United Republic passed the Preventive Detention (Amendment) Act, No. 2 of 1985 extending the application of the mainland Preventive Detention Act No. 60 of 1962 to Zanzibar as well as mainland (page 30). … it is not correct to hold that preventive detention power is a Union matter which is exercisable only by the Union President, because … the exercise of such power may be promoted by incidents or activities related to defence and security as well as matters outside the scope of defence and security which may include non-Union matters (page 32). Nowhere in this list of Union matters is mentioned “peace and good order” “preventive detention” or “detention power” as among the Union matters. Therefore to hold that preventive detention power is a Union matter is to

34

(4)

(5)

(6)

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endeavour to overstretch the list of the Union matters …. This Court therefore dissociates itself from such a view, particularly when the word “power” in so far as the Union matters are concerned has been used only in relation to the proclamation of emergency and such power has been bestowed on the President of the United Republic (page 33). Indeed preventive detention may be carried out to prevent breaches of the peace and maintenance of good government which is the main concern of every head of the executive, and this Court is of the view that it was never the intention of the Union Parliament to deprive the President of Zanzibar of the powers ‘to clean his house’ on matters of non-Union application relating to Zanzibar. It would be ridiculous therefore to deprive the President of Zanzibar the powers to take preventive measures towards those who disturb the peace in Zanzibar in relation to purely non-Union matters. I cannot and I am not prepared to hold that the Zanzibar President should fold his arms and do nothing when peace is likely to be disturbed until such time the Union Presidential approval is obtained for detaining a person even on non-Union matters relating to Zanzibar (page 33). The First Schedule to the Union Constitution, 1977, provides us with the list of Union matters. It means, therefore, all matters which are not included in that list, are non-Union matters. And since that list does not include preventive detention power or preventive detention per se as a Union matter, it means the President of Zanzibar is empowered to order preventive detention in relation to non-Union matters pertaining to Zanzibar and therefore the position of the Zanzibar Preventive Detention Decree, No. 3 of 1964 in the light of Article 65 (4) and 64 (3) of the Union Constitution is that, that legislation is inconsistent with the Union Constitution in so far as matters of defence and security are concerned and therefore it stands null and void to that extent alone. The Zanzibar Preventive Detention Decree, No. 3 of 1964 remain (sic) a good law in all other non-Union matters relating to Zanzibar. It means therefore the President of Zanzibar is precluded from detaining any person under the Zanzibar Preventive Detention Decree on grounds of defence and security, but he may detain any person under that law on grounds other than those of defence and security (pages 34–35). Since preventive detention on matters not related to defence and security is non-Union matter any legislation passed by the Union Parliament legislating for Zanzibar on that subject would be inconsistent with Articles 106 (3) and 64 (3) of the Union Constitution, 1977 as well as Article 78 (1) of the Zanzibar Constitution, 1984, hence the extension to Zanzibar of the Union Preventive Detention Act, No. 60 of 1962 as amended by Act No. 2 of 1985,

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is valid to the extent it relates to the Union matters of defence and security only whereas the non-Union aspect of it relating to Zanzibar is exercisable by the President of Zanzibar under the relevant Zanzibar legislation (page 35). Under the circumstances, there is no doubt that the detentions of the applicants in this case has been ordered on security grounds, and it being a matter reserved for the Union should have been left for the President of the United Republic to make such orders. It is therefore held that such detention having been made by a person other than the President of the United Republic and having been prompted by security related matters should have been carried out under the orders of the President of the United Republic pursuant to the Preventive Detention Act, No. 2 of 1985. Consequently I declare that the detention of the applicants as carried out under the orders of President of Zanzibar pursuant to the Zanzibar Preventive Detention Decree, No. 3 of 1964 as illegal (page 37).

Case referred to: H. Das v. District Magistrate, Luttak (1969) AIR 43.

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Mwalimu Paul John Mhozya v. Attorney General (No. 1) [High Court of Tanzania] [1996] TLR 13 [Samatta, J.K.] Constitutional law – Interpretation – Separation of powers – Procedural irregularities, effect – Removal of the President from office – Injunctions against the President – Common law – Articles 42 and 46 A of the Constitution. Facts: The applicant had filed a civil case in the High Court in which he sought, the following declarations, inter alia: (1) that the Constitution of the United Republic of Tanzania had been violated by Zanzibar joining the Islamic Conference Organization; (2) that the President of the United Republic of Tanzania was guilty of allowing or enabling that violation to take place and was therefore personally answerable for the violation; and (3) that President Mwinyi’s continued exercise of presidential powers was unconstitutional as well as a potential danger to the wellbeing of the United Republic and its citizens. After filing the suit, the applicant filed an application in which he sought an interlocutory injunction restraining. His Excellency Ali Hassan Mwinyi, the President of the United Republic of Tanzania, from discharging presidential functions pending the determination of the main suit. The application was strenuously opposed by a Senior State Attorney on behalf of the respondent. He raised a preliminary objection arguing that the application was incompetent in that the supporting affidavit was incurably defective; that the application contravened Article 46 A of the Constitution as to separation of powers; and that the provisions of section 11 (2) of the Government Proceedings Act and those of Order 37, rule 2 of the Civil Procedure Code as amended by the Government Proceedings (Procedure) Rules, 1968 (G.N. No. 376 of 1968) prohibited the kind of injunction sought in the application. Held (rejecting the application): (1)

A Constitution is a living instrument which must be construed in the light of present day conditions. The complexities of our society must be taken into account in interpreting it (page 133).

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(3)

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The balance of power between the three branches of government, namely, the executive, the legislature and the judiciary, and the relationship of the Courts to the other branches must be carefully maintained … One branch of government should not usurp the powers of another branch (page 133). It is the function of a court of justice to try to get to the bottom of the real dispute and determine what are the real issues in the matter before it provided, of course, no party can be prejudiced. As already remarked, substance rather than form should be the court’s primary concern. If legal steps can be taken to cure any defects in a pleading or affidavit, without substantially prejudicing with the opposite party, a court of justice should grant leave to the party to take these remedial steps, if he so wishes (page 134). The principle that the functions of one branch of government should not encroach on the functions of another branch is a very important principle, one of the principles which ensure that the task of governing a State is executed smoothly and peacefully (page 137). It seems to me to be an incontrovertible proposition of law, having regard to the use of the words “in accordance with the provisions of this Constitution”…. that removal or suspension from office of the President of the United Republic is the legislature’s prerogative. Since s. 46 A of {the} Constitution lays down the procedure to be used in removing or suspending the President, the attempt to remove or suspend him by a procedure other than that would not be legal. If Parliament had intended this Court to exercise concurrent jurisdiction of dealing with politico-constitutional offences it could easily have said so when enacting s. 46 A of the Constitution. The omission to provide such a provision in the Constitution would appear to strongly suggest that Parliament did not want judicial process to be used in removing or suspending the President from office (pages 137–138). Under the common law (The Crown Proceedings Act, 1948 reaffirmed the rule) no injunctions can lie against the Crown. It follows from this position that under that law this Court could not have jurisdiction to issue an injunction against the President. In any case, any rule of common law granting this Court such jurisdiction would, by necessary implication, have been abolished in this country by the provisions of section 42 and 46 A of the Constitution (pages 138–139).

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Cases referred to: A.G. of Gambia v. Momodou Jobe (1984) 3 W.L.R. 174. Hornal v. Neuberger Products Ltd. (1956) 3 All ER 970. Re: Coles Ravenshear (1970) 1 KB 1.

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OTTU (On Behalf of P.P. Magasha) v. A.G. and Another [High Court of Tanzania] [1997] TLR 30 [Full Bench] [Mapigano, Kyando and Bebeshi JJJ.] Constitutional law – Right of Appeal – Effect of section 27 (1C) of the Industrial Court Act, 1968 as amended by Act No. 3 of 1990 and its constitutionality – Overriding societal or public interests. Facts: The plaintiff was employed by the National Pharmaceutical Company. His employment was terminated in 1991. He was dissatisfied and so instituted a trade dispute in the Industrial Court in 1991 at Tabora against the company. The action was dismissed. By the provisions of section 27 (1C) of the Industrial Court of Tanzania Act as amended by Act No. 3 of 1990, no appeal could lie against the decision of the Industrial Court. The plaintiff then moved the High Court to question the constitutionality of that provision of the Act as, it was submitted, those provisions infringed the provisions of Article 13 (6) of the Constitution of the United Republic of Tanzania which guarantees the right of appeal against a decision. Held (declaring the subsection unconstitutional): (1)

(2)

The construction put on section s. 27 (1C) by Dr. Tenga is in our view the true and reasonable one. This provision pares away the right guaranteed by the Article {art. 13(6) of the Constitution} and to all intents and purposes such is exactly the intendment. Mr. Salula has not provided any effective rejoinder …. The complaint is not that a person is not allowed to go to the High Court at all. It is that his constitutional right to go there on appeal or otherwise is improperly abridged by the statutory provision (page 32). Mr. Salula however submits that the decision in Ole Pumbun’s case does not avail the plaintiff, because, according to him, s. 6 of the Government Proceedings Act of 1967 with which the Court was dealing in that case was held to be unconstitutional on the ground that it completely precluded access to the court, unlike s. 27 (1C) of the Industrial Court of Tanzania Act. We are bound to disagree. So far as we can discern that was not strictly the ratio decidendi of that decision, at any rate the only one. And we think that it is

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quite explicit that the rules laid down by the Court of Appeal in that judgment are eminently capable and were meant to be of wider or general application. Quite frankly we have to acknowledge having failed to ascertain in what way s.27 (1C) can ever tend to the overriding public and societal interests set out under Article 30(2), how, in other words, the limitations imposed under that section can be reasonably linked to any of the interests prescribed under the article. We wholly agree and we hold, therefore, that Ole Pumbun’s case avails the plaintiff and that none of the provisions of article 30(2) can be called into play (pages 32–33). For ourselves, we think there is no way around the fact that the Industrial Court has all the basic hallmarks of a court of first instance when exercising that particular jurisdiction, and that it is essentially a one-tier organ. We also think it is idle to deny that section 27 (1C) purports to whittle down the right given under art. 13(6) (a). And we consider circumstances like the constitution of the court, elaborateness of its procedure, the permissible legal representation and the elegance or lucidity of the court’s judgments to be completely irrelevant to what is at issue in this case (page 34). We have ultimately taken the view that s. 27 (1C) does not abide by art. 13 (6) (a). The section has the effect of curtailing the basic right guaranteed under the article, as demonstrated supra, and the language of the section precludes any other conclusion. As already mentioned, we also take the view that the section falls outside the purview of article 30(2). We so hold (page 34). This action therefore succeeds. We are amply satisfied that s. 27 (1C) of the Industrial Court of Tanzania Act, 1967 is unconstitutional and invalid to the extent that it deprives a person of his basic right of appeal or another legal remedy except on grounds of jurisdiction. We so declare (page 34).

Case referred to: Kukutia Ole Pumbun v. Attorney General (1993) TLR 159.

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Himid Mbaye v. The Brigade Commander [High Court of Zanzibar] [1984] TLR 294 [Ramadhani, C.J.] Constitutional law – Interpretation of statutes – Jurisdiction of Zanzibar High Court over Union executives in Zanzibar.

Facts: The plaintiff filed a suit against the Commander of Nyuki Brigade based in Zanzibar for damages as a result of alleged damage caused to his house by an army officer to whom the plaintiff ’s house was rented. Because the defendant was a Union executive, two preliminary questions arose: (1) whether or not the Zanzibar High Court had jurisdiction to entertain such suit and (2) if so, whether there was any laid down procedure that should have been followed before filing the suit.

Held (answering the first question in the affirmative and that there was no set procedure): (1)

(2)

Now the Government Proceedings Act, 1967 is not among the laws as provided {by paragraph (h) of Article 94 (2) of the Zanzibar Constitution}. Judiciary is not a Union matter. Thus even that law cannot be taken to prohibit the Zanzibar courts from hearing suits against the Union Government (page 300). Section 129 of the {Zanzibar} Civil Procedure Decree also provides: Nothing in this Decree shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the end of justice or to prevent abuse of the process of the court.

Thus so long as the plaintiff has filed his suit, this Court cannot dismiss it and be without authority to fail to give justice and bring the whole judicial process into contempt. It is imperative that this Court hears and adjudicate(s) on this suit. By applying the two provisions of the Civil Procedure Decree, therefore, the situation is this: since there is no law in Zanzibar prohibiting this Court from hearing such suits as this one it is the duty of the court to hear and adjudicate upon this suit (page 301).

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Case referred to: Abdulhussein Bodalbhoy v. Marekwa 5 ZLR 44.

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In Re: Wilfred Ngonyani [High Court of Tanzania] [1982] TLR 272 [Biron, J.] Detention and deportation – Place must be named. Facts: His Excellency the President of the United Republic of Tanzania issued an order for deportation of the applicant under the Deportation Ordinance. There was also a Warrant by the President which stated that the applicant was to be held in custody until he was deported. But the place to which he was to be deported was not stated. On that ground, the applicant challenged the Deportation Order. The Republic argued that the omission was not fatal and was curable. Held (granting the application): (1)

(2)

It is therefore abundantly clear … that not only is the Deportation Order defective, but the Detention Warrant which it is submitted by the learned state attorney cures the defect in the Deportation Order, is in itself likewise equally defective, in that it does not specify the place to where the detainee is to be deported when the opportunity occurs …. Therefore the omission to specify the place where the subject of the Order and the Warrant is to be sent, cannot be said to be a mere technicality, but is a material irregularity (page 273). Although the preamble is not an operative part of an enactment, it does at lowest indicate the intent and import of the enactment, that is the deportation of a specified person from one part of the Territory to another part, which naturally should be specified (page 273).

No cases referred to.

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The Judge In-charge, High Court, Arusha and The Attorney General v. N.I.N. Munuo Ng’uni [Court of Appeal of Tanzania] [1998] Civil Appeal 45 [Unreported] Constitutional law – Basic Rights and Duties Act – Statutory interpretation – Exclusion of jurisdiction of courts – Power of courts under the Constitution – Striking out statutory provisions and stop-gap “legislation” – Meaning of just remuneration – Advocate’s suspension by a Judge – Audi alteram partem principle. Facts: The respondent was an advocate of the High Court based at Arusha. The Judge Incharge at Arusha assigned him six dock briefs for Criminal Sessions to be held at Babati. The respondent declined to accept the briefs. The first appellant then instructed the District Registrar as follows: Following the discussions we had in my Chambers yesterday, please write to Mr. Munuo, Advocate to inform him that I have seen his letter to you and I have satisfied myself that he has no good reasons for not taking the dock briefs assigned to him and that refusal by him to take them will result in immediate disciplinary action against him under Cap 341 of the Laws. He should signify acceptance by tomorrow (emphasis supplied). The respondent did not accept the briefs and so the first appellant temporarily suspended him from practicing as an advocate. The Judge did so under section 22 (2) of the Advocates Ordinance, Cap. 341, which provides: Any Judge of the High Court shall have power to suspend any Advocate in like manner {that is, from practicing as an advocate} temporarily, pending a reference to, or disallowance of such suspension by the High Court. The respondent sued the appellants claiming that his suspension was illegal and so should be lifted; that the court should make a declaration to the effect that the Legal Aid (Criminal Proceedings) Act, 1969 was ultra vires Article 23 of the Constitution of the United Republic of Tanzania, 1977; and that he should be awarded damages.

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Since this was a claim under the Basic Rights and Duties Enforcement Act, 1984, the case was tried by three Judges of the High Court. The Court found for the respondent. In its judgment, the High Court also considered section 13 (2) (a) of the Basic Rights and Duties Act and observed that the provision was strange and curious, pregnant with problems, an absurdity and one impossible for the court to apply it with any judicial candour. The Court then declared section 4 (2) of the Legal Aid (Criminal Proceedings) Act to be unconstitutional and nullified the same to the extent that it provided for unjust remuneration to the advocates rendering services under the provisions of the Act. The Court stated that it was using the principle of harmonization and construction of provisions regarding fundamental rights so as to make them meaningful and effective. The appellants appealed to the Court of Appeal. Held (dismissing the appeal): (1) (2)

(3)

Now it is trite law that procedural irregularity should not vitiate proceedings if no injustice has been occasioned. Does that paragraph {(b) of s. 22 (2) of Cap. 341} dispense with the principle of natural justice of audi alteram partem, that is, hear the other side? We think not. Admittedly, the action of a High Court judge under that paragraph is purely interim and awaits the decision of the High Court. It nevertheless affects the human rights of an individual. We agree with the learned trial judges that the current trend and tempo of human rights demands that there should be a right to be heard even for such an interim decision. In fact, nowadays, courts in some jurisdictions, like the Eire Republic, demand not only that a person be given a right to be heard but that he be given an “adequate opportunity” to be heard … We also agree with the judgment of MacCathy, J. in The State (Irish Pharmaceutical Union) v. Employment Appeal Tribunal (1987) 1 LRM 36 that: … it is a fundamental requirement of justice that a person or property should not be at risk without the party charged being given adequate opportunity of meeting the claim, as identified and pursued. If the proceedings derive from statute, then, in the absence of any set or fixed procedures, the relevant authority must supplement it in such a fashion as to ensure compliance with constitutional justice.

(4)

We are aware that the audi alteram partem, like all legal rules, have exceptions for instance, the whole object of censorship legislation would be defeated if a

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censorship board would be required to give adequate opportunity to be heard to a publisher who could not be readily traced … but this case was not in that category. We have no flicker of doubt in our minds, and we agree with the respondent, that his letter {the judge’s instructions to the District/registrar} was nothing but an ultimatum. The first respondent (sic) had already made up his mind to take disciplinary action. He was not even in a position to accommodate a hearing, let alone giving that opportunity. Entitlement to a fair hearing includes the principle of audi alteram partem. So, that principle is part of the Constitution. Since we have found that the suspension order violated the principle audi alteram partem, then, it has also violated the Constitution. Admittedly the Legal Aid (Criminal Proceedings} Act was enacted in 1969 and at that time shs. 500/- was substantial. But at the present time that amount is peanuts. As such we entertain no doubt at all in our minds that that amount obviously infringes Article 23 (2) which provides: Every person who works is entitled to just remuneration. Now, the Pocket Oxford Dictionary defines the word “just” as equitable, fit, deserved, due, well-grounded, right in amount, proper, exactly. We are of the considered opinion that that definition speaks for itself and it needs no elaboration on our part. A remuneration of shs. 500/- for defending a serious criminal case like murder does not compare with any of the above quoted adjectives. We agree with the learned judges that section 4 (2) of the Act No. 21 of 1969 infringes Article 23 (2) of the Constitution. However, the respondent added, and correctly so, in our opinion, that to an advocate with a blameless record for the sixteen years of practice, an illegal suspension is obviously injurious to his reputation. Our first observation {on s. 13 (2) (a) of the Basic Rights and Duties Act} is that that subsection gives the court “power and discretion in appropriate case to allow” the relevant organ to correct the defect impugned. The provision does not oblige the court to refer the matter to the relevant organ in all cases but leaves it with “discretion” and then only in “appropriate case”. Now, in the case of Section 4 (2) of Act No. 21 of 1969, our opinion is that it was not an “appropriate case” to refer the matter to the A.G. after the same had been referred to him in Butambala’s case, though not expressly, thirty months earlier and after the expiry of the three years period of grace under the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984. We have no doubt in our minds that the provision {of s. 13 (2) of Act No. 33 of 1994} seeks to circumscribe the powers of the High Court in dealing with

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(13)

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issues of fundamental rights. This might have been an overreaction on the part of the executive after the decision of the High Court in A.G. v. Rev. Christopher Mtikila (1995) TLR 3 (sic). But, with respect, the courts have generally, and particularly in that case, demonstrated maturity in judicial restraint. So, we endorse what our learned brothers said about principles of harmonization and that of construing fundamental rights provisions so as to make them meaningful and effective. It was decided in Smith v. East Elloe Rural District Council, {1956} AC 736 at 750–51 that courts will not lean towards a construction which will oust their jurisdiction, though they must, of course, give effect to plain words. That was cited with approval in D.C. Kiambu v. R. and Others, {1960} EA 109 at 114 …. Those observations are backed by the Thirteenth Constitutional Amendment of February 2000, introducing Article 107 A (i) and 2 (a) …. Of course, compliance with the provisions of Act No. 33 of 1994 would also cause delay in rendering justice and that is also contrary to the Article quoted above. This because time will elapse between the decision of the court and the action by the relevant organ and also during all this time the offensive law or action is allowed to go on. We dare point out that justice would be delayed for no apparent good reason. However, if we uphold the decision of our learned brothers to strike out section 4 (2) of Act No. 21 of 1969, then we are going to seal the abolition of any sort of remuneration to advocates for court briefs. We dare say that the High Court erred in making that decision. We agree with their Lordships that the whole of Act No. 21 of 1969 cannot be declared unconstitutional. But on the same reasoning we disagree with them in declaring the whole of section 4 (2) unconstitutional. What contravenes the Constitution are only the amounts stipulated. So, we strike out the amounts “one hundred and twenty”, “three hundred” and “five hundred”. However, since court briefs will continue to be assigned, we cannot leave a vacuum. We have to provide for stop-gap remuneration for court briefs to advocates until such time as the office of the Honourable Attorney General deems it fit to revisit that subsection. At the moment a judge on duty outside his/her station gets a per diem of shs. 40,000.00. We have taken that a trial would normally take two days or probably three, everything else being in order. So we consider giving an advocate the per diem {of} a judge for two and a half days, that is shs. 100,000.00 per dock brief. However, that is a substantial amount of money which has not been budgeted for. So, the new fees shall be payable from July 01, 2002.

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Cases referred to: A.G. v. Rev. Christopher Mtikila (1995) TLR 3. A.G. v. W.K. Butambala (1993) TLR 46. Cooper Motor Corporation v. Moshi/Arusha Occupational Health Services (1990) TLR 96. Cooper Motor Corporation v. A.I.C.C. (1991) TLR 165. D.C. Kiambu v. R. and Others (1960) E.A. 109. Dr. Ally Shabhay v. Tanga Bohora Jamat, Civil Appeal (C.A.) No. 40 (1997) (unreported). General Marketing Co. Ltd. v. A..A.. Shariff (1980) TLR 61. Grace Ndeana v. Consolidated Holding Corporation, Court of Appeal of Tanzania Civil Appeal No. 76 (1999) (unreported). Irish Family Planning Association v. Ryan (1979) I.R. 295. Mauji v. Arusha General Stores (1968) E.A. 137. Rawal v. Mombasa Hardware (1968) E.A. 392. Smith v. East Elloe Rural District Council (1956) AC 750. The State (Irish Pharmaceutical Union) v. Employment Appeal Tribunal (1987) 1 LRM 36.

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James F. Gwagilo v. Attorney General [High Court of Tanzania] [1994] TLR 73 [Mwalusanya, J.] Constitutional law – Administrative law – Legal status of Standing Orders – Removal of public servant in public interest – Legality of sections 6 and 7 of the Pensions Ordinance – Duty to give reasons for decisions – Right to compensation and property – Doctrine of proportionality – Exclusionary (Derogation) clauses – Judicial Review – Abuse of power – Discretionary power and the rule of law - Effect of ouster clauses on court’s power of judicial reviews. Facts: The plaintiff, a senior civil servant, was charged with an offence under the Economic and Organized Crime Control Act and was acquitted. Subsequent disciplinary proceedings against him also ended in his favour. The President of the United Republic of Tanzania then made an order removing him from office “in the public interest”. No reasons were given for his removal. The order was stated as having been made under section 19(3) of the Civil Service Act No. 16 of 1989 and section 8 (f) of the Pensions Ordinance, Cap. 371. The plaintiff sued the Government claiming millions of shillings as damages, special damages and allowances, and also prayed for a declaration that his retirement in public interest was unlawful. On behalf of the Attorney General, in a preliminary objection, it was submitted that under Article 36 (2) of the Constitution of the United Republic of Tanzania, the President of the United Republic has the prerogative power to terminate or remove a civil servant in the civil service in the public interest as supplemented by Standing Order No. F35, but the correct Standing Order ought to have been cited as F44. Section 23 (2) of the Civil Service Act, No. 16 of 1989, was also referred to in support of the Attorney General’s preliminary objection. It provided that the question whether the President has validly performed any function under the Act “shall not be inquire into by or in any court.” Held (overruling the preliminary objections): (1)

I will be quick to point out that the Standing Orders have no force of law. Those Standing Orders have been superceded by the provisions of the Civil Service Act 16 of 1989 and the Constitution (page 76).

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(3)

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Standing Orders had validity only during the colonial period when the Crown could dismiss a civil servant at will as he held office at the pleasure of the Crown. When Tanganyika became a Republic in 1962 the prerogative power of the Crown to dismiss a civil servant at will did not devolve to the President. Instead the President could only remove a civil servant not at will but in public interest as per section 20 (3) of the Civil Service Act, 1962, Cap. 509. Therefore the prerogative to dismiss at will has been abrogated (page 76). The President of Tanzania has no prerogative power to dismiss a civil servant at will but in terms of Article 36 (2) of our Constitution he must remove someone in the civil service in accordance with the law, that is Civil Service Act 16 of 1989 (page 77). Now the next question is whether removal in public interest is equivalent to termination at the will of the President. The answer is an emphatic no. As Prof. Abraham Kiapi points out … whereas in the termination at will the Crown need not show cause for the discharge, under our law the President must state what interest of the public is being served …. The President cannot and should not just out of the blue, state that he was removing someone in public interest without disclosing the interest of the public to be served. Otherwise he will be accused of acting arbitrarily and in a high-handed manner. In other words, it will be an abuse of power (page 78). The duty to give reasons by the President when removing someone in the civil service in the public interest is reinforced by the provisions of article 13 (6) (a) of the Constitution. That provision states that every person whose rights and obligations are being determined by a public officer, has the right of appeal or the right to another remedy against that decision. By the phrase “another remedy” there is envisaged the right to judicial review. But there can be no judicial review if the decision-maker has not given reasons for his decision (page 78). No doubt the absence of reasons would render the constitutional right to appeal to judicial review ineffective and illusory. Consequently there is an implicit obligation to give reasons in order to facilitate and render meaningful the exercise of the right to appeal to judicial review. Our Constitution in article 13 (6) (a) must have intended the constitutional right of appeal and judicial review to be an effective right and that the President by keeping silent cannot defeat the citizen’s constitutional right. To hold otherwise would mean that the President could in almost every case, render the right of appeal and judicial review nugatory (page 78). If reasons are not given for a decision by the President that will render it virtually impossible for the courts to perform their function of judicial review. If

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(9)

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the basis and reasons for the impugned decision are not articulated it is difficult for a reviewing court to adjudge the validity of the decision. The courts cannot exercise their duty to review unless they are advised of the considerations underlying the action under review (page 79). Another reason for requiring disclosure of reasons for retiring in public interest, is to ensure proper application of mind, to reduce the possibility of casualness and capricious (sic). In brief to maintain the integrity of the decision – making process. The compulsion of disclosure of the public interest involved guarantees consideration and introduces clarity. If reasons for an order are given there will be less scope for arbitrary or partial exercise of powers and the order ex-facie will indicate whether extraneous circumstances were taken into consideration by the President in reaching his decision. That will be an effective restraint on abuse of power (page 79). In addition to imposing a healthy discipline on the decision makers, public confidence in the decision–making process is enhanced by the knowledge that acceptable reasons have to be given by those who exercise administrative power. Besides, even if the decision is adverse, the person affected may be convinced by the reasons to accept it as a reasonable and fair exercise of discretionary power (page 79). Another important consideration underlying the requirement to give reasons as to why a servant is removed in the public interest is to satisfy a basic need for fair play. A person affected by an adverse order is entitled to know why the decision has gone against him or her. What is required is not a detailed judgment but a brief and concise statement of reasons for the adverse decision (page 79). Moreover, the obligation to give reasons, our President should note, also flows from the citizen’s right to know and the right to have information which is an essential component of the freedom of speech and expression guaranteed under article 18 of our Constitution (page 79). It can be said with confidence that since article 13 (6) (a) of our Constitution provides for the right of appeal and the right of judicial review from every decision affecting citizen’s rights, then ipso facto it creates a third head of the principles of natural justice ranking equally with audi alteram partem (the rule against bias). This third head is the right to reasons from a decision–maker – that it is a denial of natural justice to refuse to give reasons to the party who lost (pages 79–80). The subjective formulation of discretionary powers is not a new phenomenon, as often the executive attempt to restrict the scope of judicial

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review. But the courts do not consider themselves impotent in the face of those subjectively framed discretionary powers (page 81). The notion of a subjective or unfettered discretion is contrary to the Rule of Law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power. If the discretion is not subject to review by a court of law then in our judgment that discretion would be in actual fact as arbitrary as if the provisions themselves do not restrict the discretion to any purpose and to suggest otherwise would in our view be naïve (page 82). So the learned State Attorney is patently wrong to think that since the discretionary powers of the President are subjectively worded, then the President is beyond challenge. As amply demonstrated above, the President can be challenged, so as to see that his power has been properly exercised (page 83). To be sure, ouster clauses are ineffective to exclude the power of the High Court to exercise its supervisory role as conferred on it by article 108 (2) of our Constitution over inferior tribunals and public authorities. It is axiomatic that all statutory power conferred to public officers including the President are subject to supervision by the High Court exercising its classic and traditional function of judicial review notwithstanding an ouster clause (page 84). The doctrine of proportionality has been recognized by the Tanzania Court of Appeal in the case of D.P.P. v. Daudi Pete and Kukutia Ole Pumbun v. Attorney General (page 84). Sections 6 and 7 of the Pensions Ordinance Cap. 371 are unconstitutional and void. They are denying a person the right to remuneration for work done contrary to article 23 (1) of our Constitution. Equally article 24 (2) providing for the right to property is violated, as that basic right states that no one may be deprived of his property without authority of the law which shall set out conditions for fair and adequate compensation (page 86).

Cases referred to: A.G of St. Christopher, Nevis and Anguilla v. Reynolds (1979) 3 All ER 129. Agro Industries v. A.G. (1994) TLR 43. Ally Linus v. Tanzania Harbours Authority, CAT Civil Appeal No. 2 (1983) (unreported). Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147. Attorney General v. Lesinoi Ndeanai (1980) TLR 214. Council of Civil Service Unions v. Minister for Civil Service (1984) 3 All ER 935; (1985) AC 374.

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D.P.P. v. Daudi Pete (1993) TLR 22. Dr. Kaijage v. Esso Standard Tanzania Ltd CA – DSM – Civil Appeal No. 10 (1982) (unreported). Kukutia Ole Pumbun v. A.G. (1993) TLR 159. Laker Airways Ltd v. Department of Trade (1977) 2 All ER 182. Minister of National Revenue v. Wright’s Canadian Ropes Ltd (1947) AC 109. Opoloto v. Uganda (1969) E.A. 63. Osmond v. Public Service Board (1985) LRC (Const.) 1041. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997. Re: In the matter of Amir Hamza Umar and the Minister for Local Government, HC.-Misc. Civil Cause No. 9 (1989) (unreported). Re: Racal Communications (1980) 2 All ER 634. Sanai Murumbe v. Muhere Chacha (1990) TLR 54. Secretary of state for Education and Science v. Metropolitan Borough of Tameside (1976) 3 All ER 665. Secretary of State for Employment v. Associated Society of Locomotive Engineers and Firemen (No. 2) (1972) Q.B. 455. SP Quota v. Union of India (1982) AIR SC 149.

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Attorney- General v. W.K. Butambala [Court of Appeal] [Makame and Ramadhani, JJ. A and Mapigano, Ag. J. A.] [1993] TLR 46 Constitutional law – Undesirability of “ambulance courts” – Courts’ duty to interpret Constitution when properly moved – Court not to vest itself with jurisdiction – When to have amicus curiae – Undesirability of Court initiating own cause and sitting on it as a judge. Facts: Respondent, an advocate, handled three legal aid briefs. After the sessions were closed the respondent wrote to the trial Judge the usual letter to have his fees assessed in terms of the Legal Aid (Criminal Proceedings) Act, 1969. After receiving the letter the Judge felt that the advocate’s remuneration of between Shs. 120/- and 500/- in each case, as prescribed by the statute, was grossly inadequate and contravened the provisions of Article 23 of the Constitution of the United Republic of Tanzania. He then instructed the District Registrar to open a Miscellaneous Criminal Cause, set the hearing date of the proceedings and serve the parties: that is, W.K. Butambala the advocate, and the Attorney-General as an amicus curiae. At the first hearing, the Attorney-General, represented by Mr. Mussa who was a State Attorney, raised a preliminary point urging that there should have been a petition in terms of Article 30 (3) of the Constitution to the High Court moving the Court into action. The State Attorney was overruled, hearing continued and the Judge decided that the paltry sums mentioned in section 4 of the Act were void because they contravened a constitutional right to a fair remuneration for work done. The learned Judge construed section 4 of the Act as modified to bring it into conformity with the provisions of the Bill of Rights. He then assessed the fees payable to the advocate at Shs. 10,000/- for the three cases. The Attorney-General Appealed. Held (allowing the appeal): (1)

[After quoting Article 30 (3) of the Kiswahili version] We note from this that there is not the usual ‘Bila kuathiri …’. ‘Without prejudice …’ so that under article 30 (3) one has to institute proceedings for relief in the High Court and

Constitutional Principles and Human Rights

(2)

(3)

(4)

(5)

55

the Kiswahili version, which is the controlling version, does not provide for other means (page 51). If we may be permitted to borrow and extend the term ‘Ambulance Lawyers’ in currency in certain jurisdictions, it is not desirable to reach a situation where we have ‘ambulance courts’ which go round looking for situations where we can invalidate statutes. We say this deliberately and by design and we do not think that this is conservative in the negative same. We think it is responsible and responsive to the needs of our society. There is, or should be, plenty of room for judges and magistrates to make positive and constructive inputs which can influence legislation in the right direction. The old practice where judges and magistrates used to construct such opinions for consideration by their own higher authorities or conferences should continue to be encouraged. It is a necessary and progressive function. We must not be understood to mean that judges should shy away from their function of construing the Constitution which is their proper duty and legitimate province. But there must be occasion for that. That is judicial power reserved for judicial situations. When we are moved, we move into judicial action and fulfill our responsibilities. Not otherwise. We are not knight errants (pages 51–52). The holding therein [in Bull v. Minister of Home Affairs] was that a formal petition was not necessary. The court did not say that no step whatsoever was required to be taken by any party. What was decided in Grace Stuart Ibingira v. Uganda … was that the court will not desist from hearing the matter because of procedural irregularity particularly where the parties accept that the court has jurisdiction. That is not to say that the court would vest itself with jurisdiction in any event. The question whether a court has jurisdiction is not a question of procedural propriety. It is not a nicety; it is fundamental (page 53). We are of the carefully considered opinion … that the learned Judge improperly raised the issue of constitutionality and that there was no legitimately permissible occasion for him to do so. This is enough to dispose of the appeal in favour of the Attorney-General who did not think he was drafted in as a friend of the court. Mr. Mussa must be forgiven for adding that if the Attorney-General was a friend of the court then he was a reluctant friend. We wish to observe that before you can have amicus curiae you need first to have a curia gone to (page 53). With respect, Mwalusanya J. initiated his own cause and then sat on it as a judge. One may be tempted to think that he had made up his mind and so the whole exercise of bringing Mr. Butambala and the Attorney–General on

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record and listening to their arguments was illusory. The approach was manifestly unjudicial and emphatically undesirable (pages 53–54). Cases referred to: Bull v. Minister of Home Affairs (1986) (1) ZLR 202. D.P.P. v. Daudi Pete (1993) TLR 22. Grace Stuart Ibingira v. Uganda (1966) E.A. 445. Steele v. Attorney-General (1967) AIR SL 1.

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Samwel Kubeja v. Republic [High Court of Tanzania] [1981] TLR 72 [Mroso, J.] Resettlement of Offenders Act 1969 – Effect of circulars – Freedom of the individual. Facts: The applicant was initially the subject of a valid deportation order but was subsequently served with a resettlement order to resettle at Songwe Resettlement Centre. While at the Centre he was confined in a fenced fort and kept under close guard by armed prison officers. He considered this confinement to be unlawful detention and so filed an application for habeas corpus. It was claimed by the Republic that the applicant’s confinement and treatment was in accordance with Regulation 8 of the Resettlement of Offenders Regulations, G.N. 133 of 1969 and a Circular was issued by the Principal Commissioner of Prisons which directed that resettlers be kept in an enclosed area and be under guard for not less than one year so as to minimize escapes of resettlers. Held (granting the application): (1)

(2)

It seems to me that the paragraph [Regulation 8] merely means what it says, which is that, as a practical measure, settlers must accept what reasonable accommodation the officer in-charge of a centre is able to give them. Settlers may have to share their accommodation provided health factors are taken into consideration. I am therefore unable to read into that paragraph a meaning that officers in-charge of the centres have powers to imprison new settlers for at least one year before they can lead a normal life of settlers under the Resettlement of Offenders Act (page 74). The problem of settlers escaping from resettlement centres is of course a very real one and proper ways and means must be sought to eliminate or at least reduce the incidence. It may perhaps even be necessary that new settlers be closely observed and further curtailment of their freedom be imposed for some time before they can be allowed to lead the normal life of a settler under the Act. But it is my considered view that officers in-charge of centres cannot impose imprisonment conditions on settlers like the applicant under authority

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(4)

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of either paragraph 8 of the Regulations, G.N. 133 of 1969 or the circular letter from the Principal Commissioner of Prisons … or even from directions arising from seminars of prison officers (pages 74–75). It seems to me that if it were considered necessary to impose on new settlers the kind of stringent conditions of confinement as have been imposed on the applicant resort has to be made to the legislature. It cannot be said too often that the freedom of an individual is sacrosanct within the confines of the law. It follows that an individual must not be deprived of his freedom more than the law clearly stipulates. His freedom must not be taken away on mere grounds of expediency (page 75). The Minister of Home Affairs is entitled to serve a deportee with a resettlement order under section 8 of the Resettlement of Offenders Act No. 8 of 1969 and once such an order has been served, the deportation order is automatically spent (page 75). I am of the firm view that the confinement in a securely fenced area of the resettlement centre to which the applicant has been placed and where he is constantly guarded by armed prison warders is unlawful. Further, the alleged direction said to have emanated from seminars of prison officers and the circular from the Principal Commissioner of Prisons … are declared to be ultra vires and of no legal effect (page 75).

No cases referred to.

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Nanalal Damodar Kanji v. Tanga Township Authority [H.M. High Court of Tanganyika] (1940) I TLR (R) 239 [McRoberts, J.] Delegated legislation – Rule contrary to settled legal principle of presumption of innocence – Interpretation of legislation affecting rights of individuals – Severing offending parts of a legislation. Facts: Appellant was convicted of an offence under rule 25 of the Township Rules which provided as follows: No person shall throw or deposit … in or upon any street or other public place any accumulation of dust, refuse, garbage … or noxious matter. Any such accumulation being immediately in front of any house shall be prima facie evidence that the same has been thrown there or deposited by the occupier of such house. Held (allowing the appeal): (1)

(2)

It seems to me therefore that the general effect of rule 25 is that if rubbish is found outside a man’s house he is presumed to have thrown it there, and he must rebut this presumption. Now, this is contrary to the general law, for everyone is presumed to be innocent until the contrary is established. “One of the most important legal presumptions is that of innocence …. So strong is the presumption of innocence, that even when guilt can be established only by proving a negative, that negative must in most cases … be proved, though the general rule of law devolves the burden of proof on the party alleging the affirmative” (Sarkar op. cit. 945) (page 240). The question now … is whether the undoubted rights of the subject can be taken away by a rule made under the Townships Ordinance and I am quite sure that they cannot. Even a statute cannot do this except in the clearest possible manner. This has been held often enough and I will only cite McCardie … “Now, I imagine that no rule of law is better settled than the rule that statutes which encroach on the ordinary rights of the subject, whether as to person or property, are subject to strict construction. The courts

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(3)

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are presumed to incline to such interpretation of such statutes as will preserve the subject’s rights unless express words or clear implication require the opposite result. The law regards with care the rights of individuals; and unless a statute restricts those rights by language beyond reasonable doubt they should be left untouched by the Court” (page 241). Now it is quite clear that that portion of rule 25 … is in excess of the statutory power which authorizes it. The relevant section enables rules to be made “for the health, order and good government of townships” and although this provision is wide it is not wide enough to cover a question of evidence and the sufficiency of proof. More than this the rule is contrary to the general principles of law. This being the case I hold that the second portion of the rule 25, namely, “any such accumulation being immediately in front of any house shall be prima facie evidence that the same has been thrown there or deposited by the occupier of such house” is ultra vires and of no effect. I do not interfere with the first part of the rule which is clearly intra vires.

Cases referred to: Brighton & Co. v. Tate and Another (1919) 35 TLR 209. Fazakerley v. Witshire 93 E.R. 636. The Galvanized Iron Co. v. Westby (1857) 21 L.J. Ex. 302.

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Hamisi Masisi and Six Others v. Republic [High Court of Tanzania] [1985] TLR 24 [Mfalila, J.] Separation of powers – Matter already in Court – Interference by executive. Facts: The applicants were granted bail by a magistrate’s court on certain conditions. Two days later, a State Attorney moved the court to cancel their bail. The magistrate complied, mainly because two days after granting the applicants bail, the Regional Commissioner for Mara Region ordered their arrest and detention apparently on the same grounds on which they were charged in court and admitted to bail. The magistrate canceled the bail to avoid conflict between the Executive and the Judiciary. Thereafter, the magistrate forwarded the record to the High Court for two purposes: (1) to review the appropriateness and legality of the cancellation of bail and (2) to discuss and determine the constitutional problem as to whether it is appropriate for the executive to order detention of the accused for the same offence. Held (granting bail to the applicants): (1)

(2)

… it is clear that the Regional Commissioner … in a move which was not only wholly unjustified but illegal decided to detain the applicants merely because they had been admitted to bail contrary to his personal views on the matter. I say his move was wholly unjustified because it having been decided to take the applicants to a Court of Law, then only the rules applicable in the administration of justice became applicable and in their application the Court concerned should not be under any influence or pressure from any quarter, in other words the entire judicial machinery, the prosecution, the defence, the Court and the subject of the proceedings … should be free from harassment however well intentioned. This is the meaning behind the concept of the independence of the judiciary. This concept is part of the laws of the United Republic (page 28). … the move was illegal because the Regional Commissioner cannot cite any legal provision to back his high handed action against these applicants. If he chooses to cite section 7 of the Regional and Area Commissioners Acts

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(Amendment) Act 1963 … the short answer to this is that this Act gave him no such powers, in fact these applicants can sustain an action against him for unlawful detention (page 28). [The Regional Commissioner] … can hardly be expected to have complied with the provision of Sub-section (3) of this Section (s. 7). This is how, if the high handedness of people like the Regional Commissioner of Mara Region is not ripped in the bud, the rights of the individual citizens as guaranteed by the laws of a free country can be trampled underfoot. More than that such actions give the Government a bad name … Illegalities in Government business cannot be allowed (page 30). At the same time I would warn the executive at Musoma to stop interfering in the judicial process and that once an accused is taken to Court he is subject only to the jurisdiction of the Court. Any other actions on the part of the executive at Musoma will be in breach of the Constitution of this country in which event this Court will have to move in its defence against anyone who will act in breach of its provisions. One of the duties of this Court is to protect the Constitution of the land (page 30).

No cases referred to.

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D.P.P. v. Daudi Pete [Court of Appeal of Tanzania] [Nyalali, C. J., Makame and Ramadhani, JJ. A.] [1993] TLR 22 Constitutional law – Basic Rights, Freedoms and Duties – High Court’s inherent jurisdiction – Section 148 CPA – Procedure, not to be arbitrary, unfair or unreasonable – Doctrine of Separation of Powers – Statute too broadly drafted – “Rat-trap” provisions – Safeguards. Facts: The respondent was charged with the offence of robbery with violence. He was denied bail by the trial court on grounds that section 148 (5) (e) of the Criminal Procedure Act, 1985 provided that the offence with which the respondent was charged was not bailable. The respondent then applied for bail in the High Court which granted the application, holding that the provisions of section 148 (4) and (5) of the Act were unconstitutional as they were violative of constitutional provisions regarding basic rights and freedoms, and the Doctrine of Separation of Powers. The High Court accordingly granted him bail. The D.P.P. appealed against that decision. Held (dismissing the appeal, albeit for different reasons): (1)

(2)

We concur with the learned Trial Judge that the provisions of sub-arts (3) and (4) of art 30 (of the Constitution) sufficiently confer original jurisdiction upon the High Court to entertain proceedings in respect of actual or threatened violations of the Basic Rights, Freedoms and Duties. We also concur that until Parliament legislates under sub-art (4) the enforcement of the Basic Rights, Freedoms and Duties may be effected under the procedure and practice that is available to the High Court in the exercise of its original jurisdiction, depending on the nature of the remedy sought (page 29). We agree … that under the above cited provisions, the High Court has unlimited inherent original jurisdiction to adjudicate upon any legal matter unless there is express statutory provision to the contrary. Howev we concur with Mr. Massaba that since there is a specific provision under the Constitution, that is, article 30 (3) and (4) concerning the enforcement of the Basic Rights, Freedoms and Duties in question, any proceedings for that

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(3) (4)

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purpose must be instituted under that specific article of the Constitution (pages 19–30). We … find … that the learned Trial Judge was wrong in framing issues covering the whole of ss (4) and (5) of s 148 (page 32). It is obvious [from provisions of Article 15 (1) and (2) of the Constitution] that a person may be deprived or denied of personal liberty under article 15 only under the conditions stipulated under paras (a) and (b). In the case before us, it is para (a) which is relevant. That paragraph sanctions the deprivation or denial of liberty under certain circumstances and ‘subject to a procedure’, both of which must be ‘prescribed by law’ (page 37). From a close examination of sub-art (2) of article 15, it is apparent that its wording is so emphatically protective of the right to personal liberty that the procedure envisaged under para (a) cannot be anything but a procedure of safeguards by which one may be deprived or denied of personal liberty. In the words of the Supreme Court of India which considered a similar provision in the Indian Constitution in the case of Maneka Gandhi v. Union of India … (page 621): ‘Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirement? Obviously procedure cannot be arbitrary, unfair or unreasonable.’ We are unable to find under S. 148 or elsewhere any prescription of the requite procedure for denial of bail in terms of paragraph (a) of article 15 (2) of the Constitution and we so find” (page 38).

(6)

(7)

In our view, the Doctrine of Separation of Powers can be said to be infringed when either the Executive or the Legislature takes over the function of the Judicature involving the interpretation of the laws and adjudication of the rights and duties in disputes either between individual persons or between the state and individual persons. Legislation which prohibits the grant of bail to persons charged with specific offences does not in our view amount to such a take over of judicial functions by the Legislature (page 40). We accept the proposition that any legislation which falls within the parameters of article 30 is constitutionally valid, notwithstanding that it may be violative of basic rights of the individual but, and this is a crucial but, such legislation must fit squarely within the provisions of the article. Any statute which is so broad as to fall partly outside the parameters of the article would not be validated … (page 43).

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(8)

65

It is thus plain that the provisions of s. 148 (5) (e) are so broadly drafted that they are capable of depriving personal liberty not only to persons properly considered to be dangerous, but even to persons who cannot be considered to be dangerous in terms of the meaning of para (b) of sub-art (2) of article 30. Such a statutory provision amounts to the Kiswahili proverbial rat-trap which catches both rats and humans without distinction. A provision of that nature attempts to protect society by endangering society. Section 148 (5) (e) is such a provision. It does not therefore fit into article 30 (2) (a) of the Constitution and is consequently null and void (pages 43–44).

Cases referred to: A.G. of the Gambia v. Momedu Jobe (1984) AC 689 (PC). Bull v. Minister of Home Affairs (1986) (I) ZLR 202. Clarke v. Karika (1985) LRC (Const.) 732. Lindsley v. Natural Carbonic Gas Co. (1911) 220 US 61. Maneka Gandhi v. Union of India (1978) 2 SCR 621. Megawan v. Maryland (1961) 366 US 420. Republic v. Peregrin Mrope, H.C. Misc. Crim Cause No. 43 (1989) (unreported).

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Attorney General v. Lohay Akonaay and Another [Court of Appeal of Tanzania] [Nyalali, C. J., Makame and Kisanga, JJ. A.] [1995] TLR 80 Constitutional law – Separation of powers – Right to property – Customary or deemed rights in land – Supremacy of Constitution – Nyerere Doctrine of Land Value – Ouster of Jurisdiction of Courts – Striking down statutes. Facts: The respondents, father and son, had acquired land rights under customary law recognized as deemed rights of occupancy under section 2 of the Land Ordinance over 20 acres in Mbulu District, Arusha Region which they had cleared in 1943. They occupied and used the land until they were dispossessed during “Operation Vijiji” under the Villages and Ujamaa Villages Act, 1975. They successfully sued for recovery of that land and regained possession of it in 1990 under a Court decree. An appeal against that judgment was still pending in the High Court when the Regulation of Land Tenure (Established Villages) Act, 1992 was enacted. The effect of that Act was to extinguish customary rights in land acquired before “Operation Vijiji” in “an established village”, to prohibit the right to compensation for such extinction, to oust the jurisdiction of the courts, terminate relevant court proceedings and prohibit the enforcement of any relevant court decision. Proceedings under the Act were to be instituted only in local land tribunals. The respondents then petitioned the High Court alleging breach of their fundamental rights and obtained a declaration from the High Court that the Act was invalid for inconsistency with the Constitution in that it violated the petitioners’ rights of equality before the law, of freedom from deprivation of property without fair compensation, and of access to the courts to protect their rights. The High Court struck down the entire Act. The Attorney General appealed arguing that those holdings were erroneous, that customary land rights were not forms of property protected by the Constitution and that the High Court erred is striking down the whole Act out of the statute book.

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Held (partly allowing the appeal by striking down part of section 6 of the Act): (1)

(2)

(3)

(4)

Article 2 of the Constitution of the United Republic of Tanzania recognizes the right of every person in Tanzania to acquire and own property and to have such property protected. Sub-article (2) of that provision prohibits the forfeiture or expropriation of such property without fair compensation (page 86). As we have already mentioned, the correct interpretation of s. 4 and related sections [of the Land Ordinance] is that the President holds public land on trust for the indigenous inhabitants of that land. From this legal position, two important things follow. Firstly as trustee of public land, the President’s power is limited in that he cannot deal with public land in a manner in which he wishes or which is detrimental to the beneficiaries of public land. In the words of s. 6 (1) of the Ordinance, the President may deal with public land only ‘where it appears to him to be in the general interests of Tanganyika.’ Secondly, as trustee, the President cannot be the beneficiary of public land. In other words, he is excluded from the beneficial interest (page 89). With regard to the requirement for validity of title to the occupation and use of public lands, we do not think that the requirement applied to the beneficiaries of public land, since such an interpretation would lead to the absurdity of transforming the inhabitants of this country, who have been in occupation of land under customary law from time immemorial, into mass squatters in their own country. Clearly that could not have been the intention of those who enacted the Land Ordinance. It is a well known rule of interpretation that a law should not be interpreted to lead to an absurdity. We find support from the provisions of art 8 of the Trusteeship agreement which expressly exempted dispositions of land between the indigenous inhabitants from the requirement of prior consent of the governing authority. In our considered opinion, such consent is required only in cases involving disposition of land by indigenous inhabitants or natives to nonnatives in order to safeguard the interests of the former. We are satisfied in our minds that the indigenous population of this country are validly in occupation of land as beneficiaries of such land under customary law and any disposition of land between them under customary law is valid and requires no prior consent from the President (page 89). In our considered opinion the Land Regulations apply only to a Right of Occupancy granted under s 6 of the Land Ordinance and have no applicability to customary or deemed rights of occupancy, where consent by

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(6)

(7)

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a public authority is required only in the case of transfer by a native to a nonnative. A contrary interpretation would result in the absurdity we have mentioned earlier (page 90). It is a fundamental principle in any democratic society that the Constitution is supreme to every other law or institution. Bearing this in mind, we are satisfied that the relevant proviso means that what is stated in the particular part of the Constitution is to be exercised in accordance with relevant law. It hardly needs to be said that such regulatory relevant law must not be inconsistent with the Constitution (page 90). … customary or deemed rights in land, though by their nature are nothing but rights to occupy and use the land, are nevertheless real property protected by the provisions of art 24 of the Constitution. It follows therefore that deprivation of a customary or deemed right of occupancy without fair compensation is prohibited by the Constitution. The prohibition of course extends to a granted right of occupancy. What is fair compensation depends on the circumstances of each case. In some cases a reallocation of land may be fair compensation. Fair compensation however is not confined to what is known in law as unexhausted improvements. Obviously where there are unexhausted improvements, the Constitution as well as the ordinary land law requires fair compensation to be paid for its deprivation (page 90). We are also of the firm view that where there are no unexhausted improvements, but some effort has been put into the land by the occupier, that occupier is entitled to some protection under art, 24 (2) and fair compensation is payable for deprivation of property. We are led to this conclusion by the principle, stated by Mwalimu Julius K. Nyerere in 1958 and which appears in his book ‘Freedom and Unity; … Nyerere states, inter alia: ‘When I use my energy and talent to clear a piece of ground for my use it is clear that I am trying to transform this basic gift from God so that I can satisfy a human need. It is true, however, that this land is not mine, but the efforts made by me in clearing that land enable me to lay claim of ownership over the cleared piece of ground. But it is not really the land itself that belongs to me but only the cleared ground which will remain mine as long as I continue to work on it. By clearing that ground I have actually added to its value and have enabled it to be used to satisfy a human need. Whoever then takes this piece of ground must pay me for adding value to it through clearing it by my own labour’.

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This in our view, deserves to be described as ‘the Nyerere Doctrine of Land Value’ and we fully accept it as correct in law (pages 90–91). (8)

(9)

(10) (11)

(12)

(13)

But as we have already said, the correct constitutional position prohibits not only deprivation of unexhausted improvements without fair compensation, but every deprivation where there is value added to the land (page 91). We agree that the Constitution allows the establishment of quasi-judicial bodies, such as the Land Tribunal. What we do not agree is that the Constitution allows the courts to be ousted of jurisdiction by conferring exclusive jurisdiction on such quasi – judicial bodies. It is the basic structure of a democratic constitution that state power is divided and distributed between three state pillars. These are the Executive vested with executive power, the Legislature vested with legislative power, and the Judicature vested with judicial powers. This is clearly so stated under art 4 of the Constitution. This basic structure is essential to any democratic constitution and cannot be changed or abridged while retaining the democratic nature of the constitution …. It follows therefore that since our Constitution is democratic, any purported ouster of jurisdiction of the ordinary courts to deal with any justiciable dispute is unconstitutional. What can properly be done wherever need arises to confer adjudicative jurisdiction on bodies other than the courts, is to provide for finality of adjudication, such as by appeal or review to a superior court, such as the High Court or Court of Appeal (page 92). Act No. 22 of 1992 cannot be construed to be discriminatory within the meaning of art 13 (5) of the Constitution (page 93). Although the Deputy Attorney General was very forceful in submitting … that the Doctrine of Separation of Powers dictates that only the Legislature has powers to strike out a statute from the statute book, we would agree with the learned Deputy Attorney General in so far as valid statutes are concerned. We are unable, on the authority of reason, to agree with him in the case of statutes found by a competent court to be null and void. In such a situation, we are satisfied that such court has inherent powers to make a consequential order striking out such invalid statute from the statute book (page 94). There is persuasive authority to the effect that where the unconstitutional provisions of a statute may be severed leaving the remainder of the statute functioning, then the court should uphold the remainder of the statute and invalidate only the offending provisions (page 95). In the present case, for the reasons we have given earlier, we are satisfied that ss 3 and 4 which provide for extinction of customary rights in land but prohibit the payment of compensation with the implicit exception of

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(14)

(15)

(16)

(17)

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unexhausted improvements only are violative of art 24 (1) of the Constitution and are null and void. Section 4 would be valid if it covered compensation for value added to the land within the scope of the Nyerere Doctrine of Land Value (page 95). But as we have pointed out earlier in this judgment, this finding has no effect in the villages of Arusha Region … which are listed in the schedule to Government Notice No. 88 of 1987. The customary right in land in those listed villages were declared extinct before the provisions of the Constitution, which embody the Basic Human Rights became enforceable in 1988 by virtue of the provisions of S. 5 (2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984. This means that since the provisions of the Basic Human Rights section are not retrospective when the 1992 Act was enacted by Parliament, there were no customary rights in Land in any of the listed villages of Arusha Region (page 95). With regard to s. 5(1) and (2), which prohibits access to the courts or tribunal, terminates proceedings pending in court or tribunal and prohibits enforcement of decisions of any court or tribunal concerning land disputes falling within the 1992 Act, we are satisfied, … that the entire section is unconstitutional and therefore null and void, as it encroaches upon the sphere of the judicature contrary to art 4 of the Constitution and denies an aggrieved party remedy before an impartial tribunal contrary to art 13 (6) (a) of the same Constitution (page 96). Clearly this section [s. 6 of the Act] is unconstitutional only to the extent that it purports to exclude access to the courts. The offending parts may, however, be severed so that the remainder reads ‘Proceedings may be instituted under this Act in Tribunal having jurisdiction over the area in which the dispute arises’. This would leave the door open for an aggrieved party to seek a remedy in the courts, although such courts would not normally entertain a matter for which a special forum has been established, unless the aggrieved party can satisfy the court that no appropriate remedy is available in the special forum (page 96). The remainder of the provisions of the 1992 Act, including s. 7, which can be read without the proviso referring to the invalidated s.3, can function in respect of matters stated under s. 7 of the Act. To that extent, therefore, the learned Trial Judge was wrong in striking down the entire statute (pages 96–97).

Constitutional Principles and Human Rights

Cases referred to: A.G. of Alberta v. A.G. of Canada (1947) AC 503. Amodu Tijan v. The Secretary Southern Nigeria (1921) 2 AC 399. Hewlett v. Minister of Finance (1981) ZLR 571. Mtoro bin Mwamba v. A.G. 20 EACA 108. Shah v. A.G. (1970) E.A. 523.

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In Re: Dishon Susa Yamo and John Yamo and the Republic [High Court of Tanzania] [1985] TLR 119 [Mushi, J.] Deportation order and release - Authority for arrest and detention Leberty of individuals. Facts: A brother of the applicants stated in his affidavit that Dishon Yamo and John Yamo were arrested in 1984 on allegations that they were habitual criminals but no charges were preferred against them. After complaining to the authorities, they were released in December 1984. They were arrested again on 30/3/85 on allegations that they were in possession of ammunitions but no ammunitions were found in their possession. Again, no charges were preferred against them. Police claimed that there had been a deportation order against them and more than 200 others in 1983. But there was no evidence why they were arrested again in 1985. An application in the nature of habeas corpus was then filed in the High Court. Held (granting the application): In this particular case, the moment the deportees … were released, the deportation order dated 24 September 1983 ceased to apply against them. If the President is again satisfied that the applicants ought to be deported, a new deportation order has to be issued as if the former one had not been made. Since it has not been shown for what offence the applicants were arrested on 30 March 1985 and under what authority they are being detained, their arrests and detention can be nothing other than illegal. No citizen of this country or any lawful visitor to this country ought to have his freedom or liberty restrained by the Police for any second unless such person has contravened any of the provisions of the law of the state (page 126). No cases referred to.

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Lujuna Shubi Ballonzi, Senior v. Registered Trustees of Chama Cha Mapinduzi [High Court of Tanzania] [1996] TLR 203 [Sammatta, J.K.] Locus standi – Academic questions – Public interest litigation, who may prosecute – Relator actions – Common doctrines – Judicial review of executive action – Management of Public Affairs – Academic, hypothetical, premature or dead issues. Facts: The plaintiff claimed that during the era of the one-party state the ruling party, C.C.M., whose trustees were the respondents, had acquired many properties through subventions from the Government and compulsory contributions from millions of people, the majority of whom, like the plaintiff, were not members of the party. The funds so received as subventions, it was alleged, were misused and mismanaged leading to a huge debt burden upon Tanzania. The plaintiff sought an order for the defendants to pay the said debt allegedly amounting to seven hundred and eighty billion shillings and a declaration that the defendant had no right to the properties they had purportedly acquired, that C.C.M. was not a political party, and that defendants pay all external debts amounting to more than seven billion dollars, and a permanent injunction restraining defendants from using or alienating those properties. The defendants raised preliminary objections regarding, among others, non-compliance with the law for representative suits and the justifiability of the claim. The question of the plaintiff ’s locus standi was also considered by the Court. Held (upholding the preliminary objections and striking out the suit): (1)

In this country, locus standi is governed by the common law. According to that law, in order to maintain proceedings successfully, a plaintiff or an applicant must show not only that the court has power to determine the issue but also that he is entitled to bring the matter before the court .… Courts do not have the power to determine issues of general interest .… They can only accord protection to interests which are regarded as being entitled to legal recognition. They will thus not make any determination of any issue that is academic, hypothetical, premature or dead. Because a court of law is a court of justice and not an

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academy of law, to maintain an action before it, a litigant must assert interference with or deprivation of or threat of interference with or deprivation of a right or interest which the law takes cognizance of. Since courts will protect only enforceable interests, nebulous or shadowy interests do not suffice for the purpose of suing or making an application. Of course, provided law recognizes the interest, the smallness of it is immaterial. It must also be distinctly understood, I think, that not every damage or loss can be the subject matter of court proceedings …. The maxim damnum sine injuria esse potest (there may be damage or loss inflicted without any act being done which the law deems an injury) is, without any shadow of doubt, part of the law of this country (page 208). Under s 2(2) of the Judicature and Application of Laws Ordinance, Cap. 453, this Court has, of course, power to modify the common law so as to make it suit local conditions (page 209). An ordinary person is likely to be more conversant with his private law rights than with his public law rights litigation. By necessity the rule of locus standi in so far as it relates to human rights litigation, must be wide. I can see no warrant for making similar extension to the rule as far as private interest litigation is concerned (page 211). A person cannot seek to advance the claims of a group of persons without adopting the procedure laid down in Rule 8 of Order 1 of the [Civil Procedure] Code. He cannot, as the respondent in the case now before me has purported to do, institute a representative suit without first obtaining leave of the court to bring such suit. When such suit is instituted without that leave, it must be struck out for being incompetent in law. Common interest litigation can be conducted only in accordance with the provisions of Order 1 Rule 8 of the Code. As already remarked, failure to comply with those mandatory provisions is fatal to any such suit or application. This is, in law, a sufficient ground for striking out the respondent’s purported representative suit (page 212). … nowhere in his plaint has the respondent asserted that, as a result of the applicants’ alleged misconduct, he has suffered special damage over and above other Tanzanians or millions of Tanzanians who are not members of CCM. It is a principle of law of this country that public rights can only be asserted in a civil action by the Attorney-General as the guardian of the public interest. Except where statutory provisions provide otherwise, a private person can only bring an action to restrain a threatened breach of the law if his claim is based on an allegation that the threatened breach will constitute an infringement of his private right or will inflict special damage on him (pages 212–213).

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(7)

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I will be forgiven, I hope, for stating the obvious, namely, the constitutionality or legality of yesterday’s actions cannot be tested by today’s constitution or law. Secondly, it is my considered view that those provisions [s. 26 (2 of the Constitution] were not intended to, and do not abolish the application in Tanzania of the common law principle that a private person cannot assert rights belonging to the public. In my judgment, they merely reduce the scope of the rule. As far as public nuisance and public charity are concerned, two or more private persons may, under ss 66 and 67 of the Code respectively, bring a relator action. But to do so, those persons must obtain the consent of the Attorney-General …. The provisions of those two sections are mandatory; suits to which the sections apply can only be instituted in accordance with their provisions (page 215). In general, the management of public funds, like the management of the economy and foreign policy of the country, is the prerogative of the executive; it is not amenable to judicial process. In the exercise of its powers in that field the executive is accountable to parliament. It would be straining to the utmost the power of judicial innovation to say that in the exercise of its powers in that area the executive falls under judicial superintendence or scrutiny. Generally speaking, judicial process is unsuitable for determining issues arising from the exercise of those powers (page 216). An assertion that the exercise of every governmental power is subject to judicial scrutiny would not be a sustainable proposition (page 216).

Cases referred to: Attorney General (Mcwhirter) v. Independent Broadcasting Authority (1973) I All ER 689. Attorney General v. Westminster City Council (1924) All ER Rep. 162. Council of the Civil Service Unions and Others v. Minister for the Civil Service (1985) AC 374. Deare v. Attorney General (1835) IX & CEx 197. Gouriet v. Union of Post Office Workers and Others (1977) 1 All ER 696. Gregory v. Camden London Borough (1966) 2 All ER 196. Lutifunnissa Bibi and Others v. Nazirun Bibi (1885) II (Cal 33). Nyali Ltd v. A.G. (1955) 1 All ER 646. Re: I.G. Farbenindustrie AG Agreement (1943) 2 All E.R. 525. Tricumdas Mulji and Another v. Khimji Vullabhadass and Others (1892) 16 Bom 626.

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Kukutia Ole Pumbun and Another v. Attorney General and Another [Court of Appeal of Tanzania] [Kisanga, Mnzavas and Mfalila, JJ. A.] [1993] TLR 159 Constitutional law – Minister’s consent to sue – S. 6 of Government Proceedings Act – Constitutionality or validly of enacted law – Meaning of art. 13 (3) of Constitution – Unimpeded access to courts – Limitation to basic rights - striking a balance-Derogation, requirements – Arbitrariness – Safeguards – Too widely drafted-Possibility of abuse – Public interest – Equality before the Law – Principle of proportionality. Facts: The appellants sought to sue the Government in the High Court to recover damages for trespass, assault, and conversion. Consent to sue the Government as provided by section 6 of the Government Proceedings Act 1967 as amended by Act No. 40 of 1974 was sought by the appellants but was withheld. Thereupon the appellants moved the High Court to rule on the constitutionality of the said section 6 and to hold that that provision was null and void as being against the Constitution of the United Republic of Tanzania. The High Court ruled that the section was not unconstitutional because it was “properly enacted by Parliament as stipulated in article 97 of the Constitution …, it is sound law and does not infringe the provisions of article 13 and/or article 108 of the Constitution.” The appellants appealed to the Court of Appeal. Held (allowing the appeal): (1) In our view this was, to say the least, a very superficial way of dealing with the issue which was before the Court, for, the fact that S. 6 was duly enacted by a competent Legislature is no answer to the question whether that section is valid or not as against the Constitution. It is one thing for a provision of the law to be properly or validly enacted by competent Legislature, but quite another for it to be constitutional; the two are not the same (page 162). (2) This means that the complainant of a violation of a basic human right is free to seek redress under article 30 (3) although he could equally well have sought relief by way of mandamus or certiorari … A complainant should be free to choose the best method legally open to him to prosecute his cause (page 164). (3) Section 6 which denies this constitutional right cannot be said to be valid merely because the applicants could have remedy elsewhere; that would

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amount to going around the problem instead of striking at it directly. Our firm view is that the offending section must be held and tested directly against the Constitution itself (page 164). On the material before us we have no difficulty in holding that S. 6 violates the basic human right of unimpeded access to the Court to have one’s grievances heard and determined there. That right is guaranteed under arts 13 (3), and 30 (3) of the … Constitution … (page 165). … because of the co-existence between the basic rights of the individual and the collective rights of the society, it is common nowadays to find in practically every society limitations to the basic rights of the individual. So that the real concern today is how the legal system harmonizes the two sets of rights. In trying to achieve this harmony, the view has been that in considering any act which restricts fundamental rights of the individual, such as the right of free access to the Court of Law …, the Court has to take into account and strike a balance between the interests of the individual and those of the society of which the individual is a component (page 166). Thus the Court in Pete’s case laid down that a law which seeks to limit or derogate from the basic right of an individual on grounds of public interest will have special requirements; first, such a law must be lawful in the sense that it is not arbitrary. It should make adequate safeguards against arbitrary decisions, and provide effective controls against abuse by those in authority when using the law. Secondly, the limitation imposed by such law must not be more than is reasonably necessary to achieve the legitimate object. This is what is also known as the principle of proportionality. The principle requires that such law must not be drafted two widely so as to met (sic) everyone including even the untargeted members of society. If the law which infringes a basic right does not meet both requirements, such law is not saved by article 30 (2) of the Constitution, it is null and void. And any law that seeks to limit fundamental rights of the individual must be construed strictly to make sure that it conforms with these requirements, otherwise the guaranteed rights under the Constitution may easily be rendered meaningless by the use of the derogative or claw back clauses of that very same Constitution (pages 166–167). It is almost apparent that [section 6] is arbitrary. It does not provide for any procedure for the exercise of the Minister’s power to refuse to give consent to sue the Government. For instance, it does not provide for any time limit, within which the Minister is to give his decision, which means that consent may be withheld for an unduly long time. The section makes no provisions for any safeguards against abuse of the powers conferred by it. There are no

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checks or controls whatsoever in the exercise of that power, and the decision depends on the Minister’s whims. And, to make it worse, there is no provision for appeal against the refusal by the Minister to give consent. Such law is certainly capable of being used wrongly to the detriment of the individual (page 167). Turning now to the requirement that the law must not be drafted too widely, it is obvious that s. 6 does not pass that test either. The section applies to all and sundry including even those against whom it was never intended. If … the object is to exclude or discourage the bringing of frivolous and vexatious litigation against the Government, it is not shown how that object is achieved without also limiting the right of persons who have genuine and legitimate claims against the Government (page 167). Even if the limitation imposed by S.6 could be selective, the pertinent question to ask is whether there was really a compelling need for such limitation. In other words, in what way is the limitation just in public interest so as to bring it within the purview of article 30 (2) of the Constitution? … We agree entirely with the learned Judge {in Ng’omango’s case} that this is violative of arts 13 (1) and (2) of the Constitution … (pages 167–168). On a similar reasoning we reject Mrs. Sumari’s submission that because the Government is responsible for the wider interests of the society, then it should not be placed on equal footing with an ordinary person. We find no justification for the distinction. We think that the equality before the law envisaged in article 13 (1) above embraces not only ordinary persons but also the Government and its officials; all these should be subjected to the same legal rules (page 168). While advancing the argument of a compelling need for limitation, Mrs. Sumari again claimed that the requirement of consent was necessary in order to give Government the opportunity … to study the proposed claims and, where warranted, to consider settlement out of court …. We could find no substance in this argument. The Government can achieve all this within the normal procedures of bringing civil suits …. The requirement of consent to sue is really not necessary for the purpose of affording the Government time to assess the claim and consider settlement out of Court. On the other hand we agree with the learned Judge in Ng’omango’s case … that such restriction militates against the principles of good governance which call for accountability and openness or transparency on the part of Governments (pages 168–169). Therefore, unlike the learned Judge from whom this appeal arises, we find that S. 6 of the Government Proceedings Act 1967 as amended by Act No. 40

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of 1974 is unconstitutional for the reasons we have amply demonstrated above. The Republic has totally failed to show that the said section is saved by the provisions of the Constitution which allow for derogation from basic human rights. In the circumstances we have no alternative but to hold, in terms of article 64 (5) of the Constitution of the United Republic of Tanzania that S. 6 of the Government Proceedings Act 1967 as amended by Act No. 40 of 1974 is void. It is accordingly struck down for being unconstitutional (page 169). Cases referred to: Himid Mbaye v. The Brigade Commander (1984) TLR 294. Khalfan Abedi Hamad v. The Director of Civil Aviation, High Court of Zanzibar Civil Case No. 20 (1986). Peter Ng’omango v. Gerson M.K. Mwangwa and Attorney General (1993) TLR 77. Shabani Khamis v. Samson Goa and Another, High Court of Zanzibar, Civil Case No. 18 (1983). (Unreported) The Director of Public Prosecutions v. Daud Pete (1993) TLR 22 (q.v.).

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Rev. Christopher Mtikila v. The Editor, Business Times and Augustine Lyatonga Mrema [High Court of Tanzania] [1993] TLR 60 [Samatta, J.K.] Torts – Vicarious liability – Torts committed by a Government Minister – Whether public servants are absolved from liability for torts committed in course of their employment – Government’s liability for such torts. Facts: The plaintiff sued the two defendants in defamation for words uttered by the second respondent (who was a Government Minister) and published by the first defendant to the effect that the plaintiff was plotting to kidnap the second Defendant using foreign mercenaries. The second defendant’s advocate raised a preliminary objection to the effect that because the alleged defamatory words, if at all they were uttered, must have been uttered by the second respondent in the course of discharging his ministerial duties, he cannot be sued in his personal capacity, rather, the suit should be a suit against the Government in accordance with the Government Proceedings Act, 1967. Held (rejecting the preliminary objection): (1)

(2)

The doctrine of vicarious liability, whereby the master or principal is liable for tortuous acts or omissions of his servant or agent, committed in the course of the servant’s or agent’s employment or agency, being part of the common law, is undoubtedly, part of the law of this country (page 63). In Halsburys Laws of England, 3rd Edition, Volume 25, at 546, the learned authors deal with the question concerning the liability of the servant as follows: A servant who commits a tort is, as a general rule, liable in damages to the person injured thereby, and his liability is not affected by the existence of a contract of service, or, where he commits the tort in the course of his employment and within the scope of his authority, by the existence of the corresponding liability of his master for the same tort, since he is the actual tort easer (sic) (page 64).

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The action in the instant case is grounded in tort, and, for reasons I have given, it is my opinion that it was not necessary in law for the plaintiff to institute proceeding against the Government (page 67). It is an elementary rule of law that the common law cannot be altered by the legislature except in express terms or by clear implication. In my view, there is no provision in the Act (the Government Proceedings Act) or in any other legislation – including the Constitution – which expressly or by necessary implication takes away the right of a citizen or other person enjoying the protection of the law of this country to sue a Government’s servant or agent who, in the course of his official duties, has allegedly committed a tort against him (pages 67–68). As the law currently stands, there is no legislation which confers immunity, qualified or otherwise, upon ministers or public officials from being sued in their personal or private capacities for torts alleged to have been committed by them in the course of their official duties (page 68). Apart from any legislative enactment, there is a right of access to the courts of law in every citizen and in every stranger within the country. That right is a fundamental one: it is jealously guarded by courts (page 68). It is my view in this case that the plaintiff is, for reasons I have endeavoured to express, entitled in law to sue the second defendant in his (the second defendant’s) private capacity (page 68).

Cases referred to: Ismail G. Lazaro v. Josephine Ngomera, C.A.T. at Mbeya, Civil Appeal No. 2 (1986) (unreported). Lanchbury and Others v. Morgans and Others (1971) 2 WLR 603. Lucas Matafu v. Hon M. M. Songambele (1977) LRT No. 10. Moris Sasawata v. Matias Malieko (1980) TLR 158. Young v. Edward Box & Co. Ltd (1951) I TLR 789.

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In Re: Ratilal Patel [H.M. High Court of Tanganyika] [1956] 2TLR (R) 227 [Lowe, J.] Writ of habeas corpus – Available alternative remedies – Governor’s order of deportation, how altered – Legality thereof. Facts: Applicant entered Tanganyika and was given a Class G Permit upon satisfying the authority that he had a job of manager and accountant of a firm of Patel Brothers. Four months later, he obtained employment as a clerk in different establishments contrary to section 7 (2) of the Immigration Ordinance. He was notified by the Principal Immigration Officer that he was in the Territory unlawfully and was later served with a deportation order issued by the Governor. Section 9 (5) of the Ordinance provided that an order under that section must remain in force “until such time as it is varied or revoked by the Governor”. The relevant form was not properly filled. The applicant applied for a writ of habeas corpus. Held (dismissing the application): (1)

(2)

Learned counsel for the Crown …. argued, quite correctly, that a habeas corpus application to examine the lawfulness of the deportation order did not lie to this Court if other remedies were available to the applicant. With that submission I agree (page 229). Various documents were produced … and among them were two copies of a notice served on the applicant. In this notice the Principal Immigration Officer has said: I have to inform you that your presence in the territory is unlawful (under Section 6 of the Immigration (Control) Ordinance because you entered the territory without being in possession of a valid Permit or Pass; under section 15 of the Immigration (Control) Ordinance because the Permit or Pass which was issued to you has expired/been cancelled). It seems clear that these two reasons are intended to be in the alternative but the Principal Immigration Officer has not deleted either. This creates an

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absurdity because it does not show the applicant which reason the Principal Immigration Officer is giving for his statement that the applicant is unlawfully in the Territory. In a matter of such importance great care should be taken to see that such documents are correct before they are served, as every person is entitled to know the reasons for him being stated to be unlawfully in Tanganyika. In any event section 15 of the Ordinance could not possibly apply to the applicant (pages 229–230). In my opinion there is nothing this Court can do to make any alteration whatsoever in the order of deportation. Were I to hold that the imprisonment was unlawful, that would amount, at the least, to an implied variation of that part of the deportation order by which the Governor empowers the Commissioner of Prisons to hold the applicant in custody pending deportation; similarly if I held that the applicant was lawfully in the territory. The custody is of course deemed to be legal custody under section 9 (3) of the Ordinance to which learned counsel for the Commissioner referred. The affidavits and other documents and letters filed on behalf of the Commissioner and the provisions of the Ordinance in my opinion, make it abundantly clear that no appeal lies to this Court by way of habeas corpus or otherwise, against the order of deportation made by the Governor and, with respect, I am satisfied that the order was lawfully and properly made and issued. The applicant is unlawfully in Tanganyika and so is a prohibited immigrant under the provisions of section 5 (1) of the Ordinance (page 233).

No cases referred to.

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An Application by Paul Massawe [High Court of Tanzania] [1979] LRT 18 [Mnzavas, J.] Constitutional law – A Regional Commissioner acting contrary to a decision of a court of law – Ultra vires – Individual rights. Facts: Applicant’s goods were seized by Police and the applicant and his driver were charged with the offence of attempting to export restricted goods. Both were acquitted and the court ordered that the goods be returned to the applicant. But the Regional Police Commander, on the instructions of the Regional Commissioner, refused to return the goods to the applicant. The applicant then filed an application in the High Court seeking an order of mandamus against the Regional Police Commander. Held (granting the application): (1)

(2) (3)

One of the things that distinguishes Tanzania from other One-Party States is the independence of its Judiciary; should one now commence, as did the Honourable Regional Commissioner, blocking and interfering with court orders which are not to his liking, we will, I am afraid, be sinking to the level of a Banana Republic where judges can be dismissed at whim and where judgments are written by rulers. It may have appeared expedient to the Regional Commissioner to act the way he did but this Court would like to mention to the Regional Commissioner that it is not, in so far as I am aware, the policy of this country to substitute expediency for legality (page 166). Individual justice has and must be supported in this country. It is entrenched in the country’s Constitution as well as the Party Constitution (page 166). The freedom of a just man is worth little if court orders can be so arrogantly flouted. The Regional Commissioner’s act of ordering the Regional Police Commander … to interfere with the court’s lawful order was clearly ultra vires, illegal and totally unconstitutional. Such acts dangerously border on the offence of contempt of court (page 167).

No cases referred to.

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Julius Ishengoma Francis Ndyanabo v. The Attorney General [Court of Appeal of Tanzania] [Samatta, C. J., Kisanga and Lugakingira, JJ. A.] [2001] Civil Appeal 64 [Unreported] Principles of constitutional law – Interpretation of constitutions – Separation of powers – Legislative competence of parliament – Ultra vires – Fundamental rights – Classification and differentiation, rational nexus – Vexacious litigation – Public interest – Striking down statutes. Facts: The petitioner filed an election petition in the High Court to challenge results of parliamentary elections in his constituency in which he had been one of the candidates. His petition, however, could not be fixed by the Registrar for hearing because he had not paid into court five million shillings for security of costs as provided by section 111 (2) of the Elections Act (as amended by the Electoral Laws (Miscellaneous Amendments) Act, 2001. Before that law was enacted, the petitioner would have been required to pay only five hundred shillings. The petitioner then filed another petition in the High Court seeking, inter alia, a declaration that the said new law was unconstitutional for being arbitrary, discriminatory and unreasonable and therefore it constituted an unjustified restriction on the right of a citizen to be heard by the Court on his complaint against irregularities and illegalities in the conduct of the parliamentary elections. The High Court (constituted by three Judges), by a majority decision, dismissed the petition for having no merit. The petitioner appealed to the Court of Appeal. Held (allowing the appeal and declaring section 111 (2) of the Act unconstitutional): (1)

These principles [of constitutional interpretation] may, in the interests of brevity, be stated as follows. First, the Constitution of the United Republic of Tanzania is a living instrument, having a soul and consciousness of its own as reflected in the preamble and Fundamental Objectives and Directive Principles of State Policy. Courts must, therefore, endeavour to avoid crippling it by construing it technically or in a narrow spirit. It must be construed in tune with the lofty purposes for which its makers framed it. So

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construed, the instrument becomes a solid foundation of democracy and rule of law. Secondly, the provisions touching fundamental rights have to be interpreted in a broad and liberal manner, thereby jealously protecting and developing the dimensions of those rights and ensuring that our people enjoy their rights, our young democracy not only functions but also grows, and the will and dominant aspirations of the people prevail. Restrictions on fundamental rights must be strictly construed. Thirdly, until the contrary is proved, a legislation is presumed to be constitutional. It is a sound principle of constitutional construction that, if possible, a legislation should receive such a construction as will make it operative and not inoperative. Fourthly, since … there is a presumption of constitutionality of a legislation, save where a claw back or exclusion clause is relied upon as basis for constitutionality of the legislation, the onus is upon those who challenge the constitutionality of the legislation; they have to rebut the presumption. Fifthly, when those supporting a restriction on a fundamental right rely on claw back or exclusion clause in doing so, the onus is on them; they have to justify the restriction (pages 14–15 of the cyclostyled judgment). The constitution rests on three fundamental pillars namely (1) the rule of law; (2) fundamental rights; (3) independent, impartial and accessible judicature. These three pillars of the constitutional order are linked together by the fundamental right to justice …. [It] is access to justice which gives life to the three pillars. Without that right, the pillars would become meaningless, and injustice and oppression would become the order of the day (pages 20–21). Fundamental rights are not illimitable. To treat them as being absolute is to invite anarchy in society. These rights can be limited, but the limitations must not be arbitrary, unreasonable and disproportionate to any claim to state interest …. Under the Constitution, an individual’s fundamental right may have to yield to the common weal of the society (page 27). Bearing in mind the minimum wage in the Civil Service, which we can take judicial notice of under section 58 of the Evidence Act, 1967, a minimum wage-earner will require literally more than all his eight years wages to pay five million shillings. When this fact is borne in mind it cannot in our opinion, be disputed that it is utterly impossible for an indigent voter to pay five million shillings as required by section 111 (2) of the Act. The statutory provision, therefore, effectively denies access to justice to indigent petitioners. Is the infliction of this extreme disability on an indigent voter or candidate justified? We have no hesitation in answering that question in the negative (page 30). First, fundamental rights and costs of litigation should not be weighed in the scales against each other (page 31).

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It is not a principle of law that all law must be of universal application or that the State has no power of distinguishing or classifying persons or things for the purpose of legislation. What the law demands is that any classification or differentiation must have rational nexus to the object sought to be achieved by the legislation in question. What is forbidden by Article 13 of the Constitution is class legislation and not reasonable classification. The legislative power to make differentiation or classification is important (page 33). It is, of course, for the courts to decide whether a classification adopted by a law is reasonable or not. The judicial antennae must be sensitive to any classification with a view to ensuring that the classification is rational …. In our view the statutory provision is a class legislation. It is also arbitrary and the limitation it purports to impose on the fundamental right of access to justice is more that is reasonably necessary to achieve the objective of preventing abuse of judicial process. Plainly, Parliament exceeded its powers by enacting the unconstitutional provision. Legislative competence is limited to making laws which are consistent with the Constitution (page 34–35). Frivolous or vexacious litigation is, undoubtedly, a detestable thing. But the right way to deal with that evil is not to close the doors to justice, but to depend upon courts invoking their inherent or statutory jurisdictions to strike out actions of that nature. The doors of justice must always be let open even to the poorest man or woman in the country. Section 111 (2) of the Act is likely to stultify bona fide petitions from indigent persons (page 34).

Cases referred to: A.G. v. De Keyser’s Royal Hotel (1920) AC 508. Britt v. Buckingham CC (1964) 1 Q.B. 77. Chester v. Bateson (1920) 1 KB 829. Chief Direko Lesapo v (1) North West Agricultural Bank (2) Messenger of the Court, Ditsobotla, case CCT 23/99. D.P.P. v. Daudi Pete (1993) TLR 22. Ex. P. Davis (1872) LR 7 Ch. 526. Baroque v. Secretary of the Ministry of Irrigation, Water Resources & Food Control (Bangladesh) and Others (2000) 1 LRC 1. Francis v. Yiewsley and West Drayton Urban District (1957) 2 Q.B. 136 (1957) 1 All ER 825. Harvest Sheen Ltd and Another v. Collector of Stamp Revenue, 2 CHRLD 246. Holiness Kesavananda Bharati Sripadanagalavaru v. The State of Kerala and Another (1973) Supp. SC 1. In Re: Boaler (1915) 1 KB 21.

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Kukutia Ole Pumbun and Another v. Attorney General and Another (1993) TLR 159. Pyx Granite Co. Ltd v. Ministry of Housing and Local Government and Others (1960) AC 260. R. & W Paul Ltd v. The Wheat Commission (1937) AC 139. Raymond v. Honey (1983) AC 1. State of Madras v. V.G. Row (1952) SCR 597. Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah and Another (2000) 1 LRC 301.

CHAPTER THREE JURISDICTION OF COURTS AND OUSTER OF JURISDICTION Introduction Statutory ouster of the jurisdiction of courts and the approach of courts in interpreting such statutory provisions are the dominant theme in this chapter. Cases in this chapter cover questions of the supervisory role to the High Court over inferior tribunals or statutory bodies, statutory exclusionary or ouster clauses – which are also sometimes referred to as claw back clauses, statutory interpretation, inherent jurisdiction, the exercise of discretionary power, and the doctrine of ultra vires. The law on the doctrine of ultra vires has undergone considerable development over the years. Before Anisminic, courts more or less applied the principle stated by Lord Goddard in the case of Racecourse Betting Control Board v. Secretary for Air (1944) 1 All ER 60 in which he said: … but where a tribunal acts within its jurisdiction, the only remedy if the decision be wrong is by appeal and appeal lies if given by statute. But there are many bodies having legal authority to determine rights of subjects and having the duty to act judicially, which are neither courts nor arbitrators. They are subject to the control of the King’s Bench Division by means of orders of prohibition and certiorari so as to keep them within their jurisdiction, but their decisions, if within their jurisdiction, are not reviewable by the courts. Exclusionary clauses suffered another setback in England in the case of Medical Appeal Tribunal ex parte Gilmore (1957) 1 QB 574, in which Denning, L.J. said: I find it well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word ‘final’ is not enough. That only means ‘without appeal’. It does not mean ‘without recourse to certiorari’. It makes the decision final on the facts, but not final on the law. 89

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Notwithstanding that the decision is by a statute made ‘final’ certiorari can still issue for excess of jurisdiction or for error of law on the face of the record. The law has since steadily developed. It culminated, it would seem, with the case of Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 WLR 163; and (1969) 2 AC 147. In that case Lord Pearce said (page 233 of the Weekly Law Reports): Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry, or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged in a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision a nullity. In that same case, Lord Reid stated (pages 213–214): But there are many cases where, although the tribunal had the jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirement of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with and decided some question which was not remitted to it …. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend to make this list exhaustive. He added: But if it decided a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide rightly …. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned …, then its decision is

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equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law. Referring to exclusionary clauses generally, Lord Reid stated (page 169 of the Appeal Reports): It is a well established principle that a provision ousting the jurisdiction of the court must be construed strictly, meaning, I think, that if such a provision is capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court. In Tanzania one of the early cases of ouster of jurisdiction of the courts in the early 1970s was the case of Mtenga v. University of Dar es Salaam (1971) HCD No. 247, in which the High Court stated that the cardinal principle of interpretation and the most elementary canon of construction is that in construing a statute, words should be given their natural and ordinary meaning. The Court added that for the court to find that the Legislature has ousted the courts’ jurisdiction, the Legislature must so state in no uncertain and in the most unequivocal terms. Thereafter followed a chain of decisions in which it has been consistently held that ouster clauses should not be interpreted to protect unconstitutional or illegal deeds. The case of Attorney General v. Aman Walid Kabourou is one of the many examples. Tanzanian courts have insisted that no power conferred by law on a public leader or officer is absolute or limitless; and that such power must be exercised in good faith and in accordance with the Constitution and other laws (see Said Shekimweri v. Attorney General – infra). In the case of James Gwagilo v. Attorney General (supra), the Court explicitly stated: At the outset, I would like to put it down plainly that ouster clauses are paper tigers meant to scare the unwary and the uninitiated in this realm of the law. They are simply put there as scarecrows. He added (page 84): To be sure, ouster clauses are ineffective to exclude the power of the High Court to exercise its supervisory role as conferred on it by article 108 (2) of our Constitution over inferior tribunals and public authorities. It is axiomatic that all statutory power conferred on public officers including the President are subject to supervision by the High Court exercising its classic and traditional function of judicial review notwithstanding the existence of an ouster clause.

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The learned Judge quoted with approval a statement by William Wade in Constitutional Fundamentals, Hamlyn Lectures, 32nd Series (1980) in which the author said: To exempt a public authority from the jurisdiction of the courts of law is, to that extent, to grant dictatorial power. It is no exaggeration, therefore, to describe this as an abuse of the power of Parliament, speaking constitutionally …. The law’s delay, together with its uncertainty and expense tempts government to take shortcuts by elimination of the courts. But if the courts are prevented from enforcing the law, the remedy becomes worse than the disease.

Jurisdiction of Courts and Ouster of Jurisdiction

Re:

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Application, Nagindas H. Desai [H.M. High Court of Tanganyika] (1954) 2 TLR (R) 192 [Cox, C.J.]

Statute taking away certiorari – Effect on Courts’ power to grant certiorari where there is excess of jurisdiction. Facts: The applicant applied for and was granted licences by the Milling Board for milling and making vegetable oils in Rufiji area, Coast Region. A group of Dar es Salaam rice and oil millers appealed to the Milling Licensing Appeal Tribunal against the granting of the licences. The Tribunal allowed the appeal. The applicant then applied to the High Court for a writ of certiorari to remove into the High Court and quash the decision of the Milling Licensing Appeal Tribunal. Section 24 (1) of the Milling Ordinance provided as follows: The decision of the Appeal Tribunal shall be final and conclusive and shall not be questioned by any proceedings in any court. Held (that the High Court was prevented from inquiring into merits but not from inquiring into inferior court’s jurisdiction): (1)

Many statutes have taken away certiorari in respect of matters with which these statutes have dealt …. But that never debarred the court from granting certiorari if it was a matter of jurisdiction. If an inferior court has wrongly exceeded its jurisdiction certiorari would lie to quash its order because it had no jurisdiction to make it. The taking away of certiorari by statute no doubt prevented the superior court from inquiring into the merits of the determination, but it did not prevent the superior court from inquiring into the question as to whether or not the inferior court had jurisdiction to make an order (page 195).

No cases referred to.

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Mapanda v. The Manager, East African Airways [High Court of Tanzania] [1970] HCD 24 [Georges, C.J.] Ouster of Courts’ jurisdiction – Certiorari or mandamus could still be available to question procedure followed. Facts: The appellant’s employment, which was on an oral contract, was terminated for offences committed by appellant. He was paid a month’s salary in lieu of notice as well as other entitlements. The trial court dismissed the suit. The appellant based his argument on the Security of Employment Ordinance. Held (dismissing the appeal): (1) (2)

All that he says would be quite true if he had been summarily dismissed (page 27). It is also worth pointing out that the jurisdiction of the courts has been entirely ousted under the Security of Employment Ordinance. If the appellant’s claim, therefore, was under this Ordinance, he would have had no right of audience, except, of course, by way of certiorari or mandamus, in order to challenge the correctness of the procedure followed (page 27).

No cases referred to.

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Mtenga v. University of Dar Es Salaam [High Court of Tanzania] [1971] HCD 247 [Biron, J.] Statutory ouster of jurisdiction of court – Statutory interpretation – Permanent Labour Tribunal Act. Facts: The plaintiff filed a suit for damages for wrongful dismissal. The defendant’s defences were: (a) that the court had no jurisdiction as section 27 (1) of the Permanent Labour Tribunal Act, 1967 ousted the jurisdiction of the Court and (b) that in any case the plaintiff ’s employment was lawfully terminated. Held (dismissing the first ground of defence but otherwise dismissing the suit): (1)

(2)

The cardinal principle of interpretation and the most elementary canon of construction, is that in construing a statute or a written agreement words should be given their natural and ordinary meaning. I find it incomprehensible how anybody could equate … an advice with either an award or a decision. It is trite to observe that the court is, and has to be for the protection of the public, jealous of its jurisdiction, and will not lightly find its jurisdiction ousted. The legislature may, and often does, I am afraid, far too often, oust the jurisdiction of the court in certain matters, but for the court to find that the Legislature has ousted its jurisdiction, the Legislature must so state in no uncertain and in the most unequivocal terms … The jurisdiction of the courts is not ousted by an advice given by a Labour Tribunal (page 173).

No cases referred to.

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Saidi Juma Muslim Shekimweri v. Attorney General [High Court of Tanzania] [1997] TLR 3 [Samatta, J.K.] Civil service – Retirement in public interest, law on – Pensions Ordinance – Civil Service Regulations – Certiorari – High Court’s supervisory powers – Ouster clauses. Facts: Applicant, an immigration officer, was served with a letter informing him of his being retired in public interest by the President under section 36 (2) of the Constitution of the United Republic read together with “Standing Order” No. F. 35, 44, and 49 (c), section 19 of the Civil Service Act, 1989, section 8 (f) of the Pensions Ordinance and Regulation 29 of the Civil Service Regulations. These provisions did not appear to be compatible in that they did not go together. The applicant sought an order of certiorari to bring up and quash the President’s decision of retiring him in public interest. The case raised the question of exercise of executive power, removal of a public officer in public interest and the power of courts to question executive action. Held (granting the application and quashing the President’s decision): (1)

(2)

The common law principle that a civil servant is dismissible at pleasure … is not part of the law of this country: see S. 36 (2) of the Constitution as read together with S. 26 (1) of the said Constitution …. In this country, civil servants are dismissed for misconduct only: see S. 19 (2) of the Civil Service Act, 1989. When a civil servant is dismissed cause must be assigned. The English common law doctrine of ‘service at pleasure’ has, as, I hope, amply demonstrated above, no place in the law of this country. The saying ‘whatever pleases the emperor has the force of law’ forms no part of our law (pages 9–10). While in England the courts are not concerned with the Civil Service as such, because the civil servant there is in law only a servant of the Crown, dismissible at the pleasure of the Queen without notice or compensation, in Tanzania the civil servant has some legal rights, including the right to be afforded an opportunity to show cause why he should not be dismissed from the service, which are enforceable in the courts (page 10).

Jurisdiction of Courts and Ouster of Jurisdiction

(3)

(4)

No power conferred by law on a public leader or officer is absolute or limitless. Every such power must be exercised in good faith and in accordance with the Constitution and other laws. Any assertion that presidential powers brook no limitation have (sic) no basis in law (page 10). Compulsory retirement of a civil servant or his removal from service in the public interest may be challenged in this Court on, among others, any of the following grounds: (a) (b)

(c)

(5)

(6)

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The legislation under which the impugned decisions (sic) was made is unconstitutional; The decision is mala fide i.e., it is actuated by malice or some purpose other than that for which it is authorized by the law: malice would be held to exist where, for example, the alleged public interest, where removal is concerned, is founded upon non-existent facts; The decision is perverse; that is to say, one which no responsible man would have made (page 10).

The Standing Orders for the Public Service have no legislative effect; they are meant for departmental and administrative purposes …. Those Orders form the internal law of the Civil Service (page 10). I agree with Mr. Nassor that the President’s decision is unsupportable in law. I hold that view for the following reasons: (i)

(ii)

The letter from the Principal Secretary cites provisions of law which are incompatible, that is to say, provisions which do not go together. Whereas the removal of a civil servant from service under S. 8 (f) of the Ordinance, s. 19 (3) of the Civil Service Act, 1989, reg 29 (2) of the Regulations, and Standing Order F. 44 is based on the general requirement of public interest, the removal under Standing Order F. 49 (c) must specifically be based on the need of, to quote the Order ‘facilitating improvement in the organization of the department to which [the civil servant] belongs by which greater efficiency or economy may be effective.’ By being based on the two sets of provisions the President’s decision has … caused the applicant considerable embarrassment. The citation, in the Principal Secretary’s letter, of Standing Order F. 35 as being one of the legs on which the President’s decision was intended to stand suggests, very strongly, that in making, or coming to, his

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(iii)

(7)

decision the President was under the mistaken belief that the applicant held his office in the Immigration Department at his (the President’s) pleasure. I have, I hope, sufficiently demonstrated that in this country civil servants, including immigration officers, do not hold office at the pleasure of the President. It is perfectly correct to say that a civil servant’s security of tenure is lesser than that of a judge, but it is equally correct to observe that security is not as limited as is implied by the Principal Secretary’s letter. Standing Order F. 35 cannot be valid in law, because it is inconsistent with the provisions of S. 22 and 36 (2) of the Constitution as read together with S. 11 (1) of the said Constitution. No provision of law speaks of retirement of a civil servant in the public interest. Neither S. 19 of the Civil Service Act 1989 nor reg. 29 of the Civil Service Regulations, 1970, confers on the President power to retire a civil servant in the public interest. The provision speaks of removal, and not retirement, in the public interest. It is not of little interest to point out that even Standing Order F. 44 does not speak of retirement. It speaks of removal. Paragraph (d) of S.8 of the Ordinance refers to compulsory retirement for purposes of facilitating improvement in the organization of the department to which the servant belongs, by which great efficiency may be effected. Neither what is stated in the Respondent’s counter affidavit nor what fell from the lips of Mr. Songoro at the Bar during the hearing of the application gives even a faint suggestion that the purported termination of the applicant’s employment falls under one of the categories of compulsory retirement mentioned in S.10 of the Ordinance as amended by S.7 of the Pensions Law (Miscellaneous Amendments) Act, 1978. When all this is taken into account, it must be correct to say, as I do, that the use of the word ‘amekustaafisha’ in the Principal Secretary’s letter to the applicant causes even more confusion as to exactly why the President acted in the manner he did with regard to the applicant’s employment (pages 10–12).

In my opinion, those provisions [of S. 23 (1) and (2) of Civil Service Act] do not take away the supervisory jurisdiction of this Court where it is alleged, as is the case in the present application, that a decision made by the President under S. 36 of the Constitution and the provisions of the Civil Service Act, 1989, is invalid in law. As I understand the law, if a decision purportedly made by an authority which falls under the supervisory jurisdiction of this Court is challenged on the ground that it is not valid in law or it is null and void it

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becomes the bounden duty of the Court to hear the aggrieved party. It must be distinctly understood, however, that this Court’s supervisory jurisdiction is one of the supervision and not of appeal or revision. When it exercises that jurisdiction this Court does not sit as a super-executive. Thus, when it issues an order of certiorari the Court does not substitute another order in the place of the quashed order, but it removes that order out of the way, as one which should not be used to the detriment of any individual … Where an authority exceeds its jurisdiction, its decision will be regarded by the courts as invalid in law and beyond the protection of any exclusionary formula (pages 12–13). Cases referred to: Anisminic v. Foreign Compensation Commission (1969) 2 AC 147. G. Lazaro v. Josephine Mgombera, Civil Appeal No. 2 (1986) (unreported). Gould v. Stuart (1896) AC 575. James F. Gwagilo v. A.G. (1994) TLR 43. Shenton v. Smith (1896) AC 229. Walsall Overseas v. Railway Company (1878) 4 AC 30.

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Harun s/o Nchama and Another v. Republic [High Court of Tanzania] [1982] TLR 274 [Mwaikasu, J.] Ouster clauses – Their effect on semi-illiterate – Appellate jurisdiction, how conferred – Judicial review. Facts: The Area Commissioner for Serengeti District and the O.C.D. as authorized officers under the Stock Theft Ordinance ordered the seizure of the appellants’ head of cattle under the Stock Theft Ordinance, Cap. 422. Following that order, police officers seized the appellant’s cattle. Under section 15 (3) of the Ordinance, the District Magistrate of Serengeti District at Mugumu conducted an inquiry and endorsed the seizure and ordered that the seized cattle be given to Kisigiro, whose cattle had been stolen as compensation. The appellants then appealed to the High Court against the findings of the District Court in its inquiry. Section 15 (6) of the Ordinance provided that an order of a magistrate under section 15 of the Ordinance shall be final. Held (dismissing the appeal): (1)

(2)

(3)

At this juncture I must point out … that this appeal was wrongly admitted: first as a criminal appeal and second, as one that was, competent. It was not criminal because, apart from the involvement of a judicial officer … the act complained of was principally an administrative one; his enquiry is final, and therefore cannot be appealed against (page 275). I hasten to point out here without much a due (sic) as to judicial authority as this is an elementary principle of law, that the right to appeal against either a judicial or administrative decision, as was the case in the instant case, is a creature of statute. It is only when the statute conferring a decision-making power over a person or body of persons also provides the right to appeal against the decision of such person or body of persons so that aggrieved party would be entitled to appeal to a body higher in authority than the one making the decision (page 276). It is only by way of an application for judicial review that the order complained against could be challenged for illegality or want of jurisdiction,

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wherefore such prerogative orders as the order of certiorari could then issue in respect of such order of the lower court (page 276). I entertain no doubt that in the Tanzania situation where most people are semi-literate and ignorant of most legal procedures to address their grievances such exclusionary or finality clauses may, at times do great injustice to the subject, and is in fact incompatible with our cherished belief in the Rule of Law. Yet it is not the function of the courts to legislate upon: that is the sacred trust vested upon our Parliament (page 276).

No cases referred to.

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Ahmed Janmohamed Dhirani v. Republic [High Court of Tanzania] [1979] LRT 11 [Maganga, J.] Detention Order – Ouster of jurisdiction by statute – Irregularity in a detention order and its effect – When an act not authorized by holder of such power – Delegation of power – Importance of Public Seal. Facts: The applicant was detained under section 2 of the Preventive Detention Act, Cap. 490, under an Order signed by the Prime Minister and Second Vice President which, however, did not have a Public Seal. Applicant moved the Court for the issue of directions in the nature of Habeas Corpus. A photocopy of the order was eventually produced in court, and the same appeared to be in order. The Court, however, addressed itself to the provisions of section 2 of the Act and article 13 of the Interim Constitution. Held (upholding the detention order): (1)

(2)

I am aware that courts are excluded from inquiring into orders made under the Preventive Detention Act. Section 3 of the Act specifically states that no order made under the Act shall be questioned in any court. This however does not mean that courts are excluded from inquiring into the genuineness of orders purporting to have been made under the Act. But once it is established that an order purporting to have been made under the Act is a genuine order then the courts are stopped from further inquiring into the circumstances under which the order has been made. In other words, a court can inquire into the procedural aspect pertaining to the order itself provided it does not overstep the limit set by the Act by inquiring into the substance of the order (page 6). In my view, once it is stated in the order that it bears a Public Seal, the absence of the seal on the order becomes an irregularity but such irregularity would not make the order void or invalid. Since such irregularity does not affect the substance of the order it is curable. I would therefore say that the absence of the Public Seal on the photostat copy of the order produced before the court does not affect the validity of the order (pages 6–7).

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(3)

(4)

103

In my view therefore, the Prime Minister and Second Vice-President can only exercise executive powers, where such power is exclusively vested on the President, as in the Preventive Detention Act, if the President specifically empowers him to do so. In my view, such delegation by the President of his executive powers has to be made by an Instrument under the President’s hand (pages 8–9). Thus although the instrument of legislation enabling the Prime Minister and Second Vice-President to exercise the powers vested in the President by section 2 of the Preventive Detention Act has not been specified in the order before me, I am persuaded to agree that the order under section 2 of the Act which is under the hand of the Prime Minister and Second Vice-President has been made pursuant to an order under the hand of the President delegating the exercise of his exclusive powers under section 2 of the Preventive Detention Act, to the Prime Minister and Second Vice-President, either under section 9 (3) of the Constitution or under some other enabling legislation (page 9).

No cases referred to.

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Attorney General v. Aman Walid Kabourou [Court of Appeal of Tanzania] [Nyalali, C. J., Kisanga and Mfalila, JJ. A.] [1996] TLR 156 Constitutional law – Interpretation – Exclusionary clauses – Supervisory power of the High Court and Court of Appeal. Facts: Insofar as they are relevant to the subject matter, the facts were that following a parliamentary by-election, Azim Fremji of C.C.M. was declared the winner. Aman W. Kabourou, one of the other contestants, challenged it. One of the preliminary steps taken by the national Electoral Commission before the by-election was to issue an official Proclamation in Kiswahili titled: “Tamko Rasmi la Tume ya Taifa ya Uchaguzi ya Jamhuri ya Muungano”, which was signed by the Vice-Chairman instead of by the Chairman or Director of Elections as required by section 3 of the Act. It was not published nor did it state when it was to come into effect. One of the questions that arose in the appeal before the Court of Appeal of Tanzania was whether the Tamko Rasmi was validly made and whether the courts can inquire into acts of the Electoral Commission in view of the provisions of article 74 (12) of the Constitution of the United Republic of Tanzania. Held (that the Tamko Rasmi was invalid): (1)

On the face of it, it appears that the Constitution expressly prohibits the courts from inquiring into the validity of such things like the Tamko Rasmi, but on a deeper consideration of the principles that underlie the Constitution, it is obvious that such an interpretation of the Constitution is wrong. One of the fundamental principles of any democratic constitution, including ours, is the Rule of Law. The Principle is so obvious and elementary in a democracy, that it does not have to be expressly stated in a democratic constitution. However, perhaps for purposes of clarity, there is an express provision to that effect under the Constitution of the United Republic of Tanzania. It is Subarticle (1) of Article 26, which states: ‘Every person is obliged to comply with this Constitution and the laws of the United Republic.

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(2)

(3)

(4)

105

In the light of this principle, we respectfully agree … that Sub article (12) of Article 73 (sic) of the Constitution cannot be interpreted so as to protect unconstitutional or illegal acts or deeds, see the recent case of Anisminic Ltd v. Foreign Compensation Commission. Since Tanzania has reverted to de jure multiparty democracy, it is time the same was articulated here. We are satisfied and we find that the High Court in this country, like the High Court in England, has a supervisory jurisdiction to inquire into the legality of anything done or made by public authority such as the Tamko Rasmi. As a collorary, this Court has similar jurisdiction to do so in a matter properly before it, as in the present case (pages 170–171). There is no controversy in this appeal that the Tamko Rasmi was not signed by the Chairman or the Director of Elections as specifically required by the Act. Instead it was signed by Vice-Chairman. Since there is no provision under the Act or any other relevant law authorizing the Vice-Chairman to sign such regulation, the Tamko Rasmi was clearly invalid as we mentioned in our judgment (page 172). The validity of a regulation, including the Tamko Rasmi, lies in compliance with the conditions for making it. Such conditions may exist in the provisions of the Act which confers the power to make regulations or, under S. 32 of the Interpretation of Laws and General Clauses Act, 1972 which concerns ‘provision with respect to power to make subsidiary legislatiion’. In the cases of regulations made under S. 124 of the Elections Act, 1985 read together with S. 3 of the same Act, it is apparent that one of the essential conditions for the validity of such regulation is the signature of the Chairman or the Director of Elections (page 173). First, we are satisfied that the established rule of interpretation embodied in the Latin Maxim ‘Expressio unius Est exclusio Alterius’ that is, where matters are expressly stated, then any other matters of the same class not expressly stated are excluded, does not apply to S. 108 [of the Elections Act] because that section provides defences to matters which are not expressly stated therein. Second, taking into account the principle which underlies the Constitution and the Elections Act, 1985 that election shall be free and fair, we are of the considered opinion that an election which is generally unfree and unfair is not an election at all as envisaged by the Constitution and the Elections Act, and consequently anything which renders the elections unfree or, and unfair is in law valid ground for nullification of such purported election. We are further of the considered opinion that any law which seeks to protect unfree and unfair elections from nullification would be unconstitutional (page 175).

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Cases referred to: A.G. v. Joseph Musa Monko, Civil Appeal No. 10 (1987) (unreported). A.G. v. Joseph Zuberi Muya and Another, Civil Appeal No. 32 (1987) (unreported). Anisminic Ltd v. Foreign Compensation Commission (q.v.) (1969) 2 AC 147. In Re Abdallah Salim AG Absalaam (1967) HCD 174. Ndugu Basil P. Mramba and A.G. v. Ndugu Leons S. Ngalai, Civil Appeal No. 27 (1991) (unreported).

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Stephen Kiberenge and Others v. Republic [High Court of Tanzania] [1986] TLR 6 [Mwalusanya, J.] Judicial review – Exclusion and finality clauses – Certiorari – Mandamus. Facts: Some 497 head of cattle had been stolen from Nyamburi village in Serengeti District. The trail disappeared at Machochwe village and so some cattle at that village were seized under section 15 of the Stock Theft Ordinance. The Serengeti District Court held an ‘inquiry’ under section 15 (1) (b) (iii) of the Stock Theft Ordinance to determine as to whether Machochwe villagers were sheltering cattle thieves or otherwise assisting cattle thieves. At the end of the ‘inquiry’ the District Court found that Machochwe villagers were guilty of sheltering cattle thieves and so he ordered that the seized cattle be given to Nyamburi village as compensation. The appellants appealed to the High Court. Section 15(6) of the Ordinance provides: “An order of a magistrate under this section shall be final.” Held (dismissing the appeal): (1) (2)

In view of the provisions of S. 15 (6) of the Stock Theft Ordinance Cap. 422, an order of the trial court was not appealable. However following the reasoning in the decision of the Court of Appeal in England in Re Ex-parte Gilmore, … and that of the High Court of Kenya in Re Marle’s Application, … which I adopt, the word ‘final’ only means “without appeal” but it does not mean ‘without recourse to Certiorari or Mandamus.’ And so the order of the trial magistrate may only be challenged in the High Court by means of prerogative orders of certiorari or mandamus (page 7).

Cases referred to: Re: Exp Parte Gilmore (1956) 1 Q.B. 574. Re: Marle’s Application (1958) E.A. 153.

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Tanganyika Electric Supply Co. v. Ahmed Omar [High Court of Tanzania] [1965] E.A. 29 [Sir Ralph Windham, C.J.] Ouster of Courts’ jurisdiction – Effect of section 31 (1) of Electricity Ordinance – Ouster must be in clear terms. Facts: The appellant sued the respondent in Morogoro District Court for TShs. 1,431/44 plus interest as being unpaid balance of charges for the supply of electric current to the respondent. The respondent denied liability saying “The meter seems to have registered inaccurately the electricity consumed”. Section 31 (1) of the Electricity Ordinance provided that in the event of a dispute as to whether any meter or apparatus, whereby the value of the supply is ascertained or is not in proper order for correctly registering value of supply, any of the parties would apply to an electric inspector, and the electric inspector’s decision shall be final and binding on all parties, in the absence of fraud, as to the value of the supply. After hearing the evidence, the trial magistrate made findings of fact on questions of fact and credibility and decisions arrived at from what had and what had not been pleaded only contingently, but held that he had no jurisdiction by reason of the provisions of section 31 (1) of the Ordinance. Held (allowing the appeal): (1)

(2)

With respect, I cannot so construe S. 31 (1) …. If neither party so refers it, then the all-important last two lines of S. 31(1) come into play, which provide that – “subject as aforesaid, the reading of the meter shall be conclusive evidence in the absence of fraud, as to the value of the supply”. Conclusive evidence where? Conclusive evidence in what tribunal? And in what tribunal is the fraud to be proved, if alleged? Clearly in the Courts of the land, should the plaintiff find it necessary to bring his claim to the courts. The section does not empower an electric inspector to decide upon a claim for electric charges based on a meter reading …. The inspector does not, and is not empowered to, decide the suit itself (page 31). That such is the correct interpretation of S. 31 (1) appears clear from the wording of the subsection itself, whose last two lines would otherwise have no

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meaning. The interpretation is also supported by the general rule of interpretation expressed in the following words by MCNAIR, J. in Francis v. Yiewsley and West Drayton U.D.C. (1957) 2 Q.B. (page 148): It is a fundamental rule that if a subject is to be deprived of a right of coming to these courts it must be in clear words. … The exclusive power of an electric inspector to determine one particular issue of fact when so requested is a limited one, and does not exclude the general jurisdiction of the courts to determine the suit itself in which that question is in issue, whether or not that issue has been determined by an inspector before the suit comes to court (page 33). Cases referred to: Francis v. Yiewsley and West Drayton U.D.C. (1957) 2 Q.B. 136. Hendon Electric Supply Co. v. Banks (1918) 118 LT 544. Joseph v. East Ham Corporation (1936) I KB 367. Pyx Granite Co. v. Ministry of Housing (1958) I All ER 635.

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Sheikh Abdulla v. Regional Police Commander, Dar es Salaam and Two Others [High Court of Tanzania] [1985] TLR 1 [Mapigano, J.] Writ of habeas corpus – President’s deportation powers under Deportation Ordinance – Jurisdiction of High Court in judicial review – Grounds for court’s interference. Facts: The applicant had been a public servant for thirty-three years in Tanzania and abroad. He retired in 1980. Although he was born in Zanzibar, on retirement he settled down at Mabibo in Dar es Salaam where he felt for and took up the vocation of a religious leader. On 9 October 1983, he was arrested at his house at Mabibo and whisked away to police custody. The respondents contended that on 7 October 1983, the President of the United Republic had made an order under his hand and seal under sections 2 and 5 of the Deportation Ordinance stating that the applicant was to be deported to Zanzibar from Dar es Salaam Region and a warrant under the said sections of the law for detention of the subject until a suitable opportunity occurred for his deportation. The ground for the order was that the applicant was conducting himself so as to constituted his continued residence in the Dar es Salaam Region and the neighboring regions dangerous to peace and good order. The applicant then filed a chamber application for the issue of directions in the nature of habeas corpus as provided under section 348 (1) (a) of the Criminal Procedure Code, Cap. 20, and it was supported by an affidavit of one of his four wives. The respondents argued that the subject’s detention was lawful and could not be questioned or impeached as provided under section 3 of the Deportation Ordinance. The respondents also relied on, though feebly, sections 11 (1) and 94 (1) of the Constitution of the United Republic, section 11 (1) of which vests executive authority of the Government of the United Republic and all Union matters in the President. Held (granting the application): (1)

The remedy sought for, … is the issue of directions in the nature of habeas corpus. This remedy has its roots in England. At common law the prerogative writ of habeas corpus is directed to a person who detains another in custody and

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(3)

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commands him to produce or have the body of that person before the court for a specific purpose. The most important specie of habeas corpus is that which is called habeas corpus ad subjiciendum. This commands the person to whom it is directed to produce the body of the person detained, with the day and cause of his caption and detention, to do, submit to and receive whatever the court shall direct (page 2). Besides the efficacy of the writ in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unlawful restraint of personal freedom in private life, availing, for example, to release a person from a place where he has been unlawfully banished. [That] is part of the law of this country. But, it may be stressed, to invoke the remedy of habeas corpus it must be shown that the detention is improper or illegal (page 2). I share the view that the question as to whether a person is conducting himself so as to be dangerous to peace and good order in any part of the Territory is entirely subjective. And subject to what I am going to say below, the decision to deport a person from one part of the Territory to any other part of the Territory in pursuance thereof cannot be impugned in any court. However, as demonstrated, deportation is a very weighty matter and Orders of deportation should, therefore, be prudently and sparingly made (page 4). This is not an appeal. It is an application under section 348 (i) (a) of the Criminal Procedure Code for habeas corpus. No doubt that the writ of habeas corpus can be used to challenge even the act of the Executive if that act unjustifiably infringes upon the liberty of the subject. In being seized of the matter a court is not sitting in appeal as such. It is merely concerned to find out for certain whether or not the act of the Executive is in line with the law of the land. Where a person has been detained by the Executive the test as stated above, is whether the detention is illegal or not. And over the years many decisions have been pronounced that it is illegal if the order in respect thereof is ex facie bad, or where the Executive has acted in excess of its powers or failed to comply with the requirements thereof, or where the Executive has acted in bad faith or has committed a breach of natural justice. In short, therefore, the competence of this application cannot be impeached on the ground that this court lacks jurisdiction (page 5). Under that provision [section 3 of the Interpretation and General Clauses Ordinance 1972] “Territory” means Tanganyika. Section 2 of the [Deportation] Ordinance does not say, … that the President is empowered to deport a person from any part of Tanganyika to Zanzibar …. That said, I am compelled to pronounce with the greatest respect and humility, that the order

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of deportation in respect of the applicant in the instant matter is ... gravely flawed (page 6). Case referred to: Zabrovsky v. Palestine (General Officer Commanding) (1947) AC 246.

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Tanzania Air Services Ltd v. Minister for Labour, Attorney General and Commissioner for Labour [High Court of Tanzania] [1996] TLR 217 [Samatta, J.K.] Administrative law – Decision making by public authorities – Duty to give reasons – Application of common law in Tanzania – Exclusionary clauses and their effect – Certiorari – Mandamus – Delegation, effect – Court’s inherent jurisdiction – Justice must be seen to be done. Facts: The applicant was aggrieved by a decision of the Labour Conciliation Board reinstating applicant’s employee. The applicant appealed to the Minister who delegated his duty to the Commissioner for Labour under section 44 of the Security of Employment Act Cap. 574. The Commissioner confirmed the decision of the Conciliation Board but he gave no reasons for reaching that decision. He simply stated, “In accordance with section 26 (2) of the Security of Employment Act, 1964, I confirm the decision of the Conciliation Board. The employee should be reinstated.” Section 27 (1) of the Security of Employment Act provided that the decision of the Minister was final and conclusive. The applicant moved the High Court for a prerogative order of certiorari on the ground that no reasons were given for the decision. Held (granting the application): (1) (2)

(3)

(4)

There is, under the common law, no general requirement that public authorities should give reasons for their decisions (page 220). The absence in common law of a general rule requiring a decision-maker to give reasons has been criticized by Professor H.W.R. Wade in his book Administrative Law … (page 221). I would add that, in so far as natural persons are concerned, giving reasons for a decision constitutes a recognition that the parties are rational beings (page 222). It seems to me that the interests of justice call for the existence, in common law, of a general rule making it mandatory in matters of importance for public authorities, a term I use to include statutory and domestic bodies, to

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give reasons for their decisions … but what are matters of public importance? It is neither desirable nor possible to define that term, but certainly it should be taken to include all matters in which the liberty, livelihood or reputation of the individual is concerned or in which proprietary or pecuniary rights or interests are at stake. In any other situation the decision-maker should be bound to give reasons only if he is requested by a party to do so (page 222). Some people may argue that varying the common law in the manner I have indicated would result in placing more burdens on the already busy decisionmakers. This is an attractive argument, but I think Geoffrey A. Flick’s counter-argument in his book [Natural Justice, Principles and Practical Application] outweighs that argument (page 223). In my considered opinion, it is a matter beyond rational controversy that … fundamental requirement of fair play requires that parties should know at the end of the day why a particular decision has been taken. I think it is intolerable in a democratic society that the law should allow a decision-maker to whom an appeal or reference is made to make his decision without giving reasons why he has reached the decision. ‘The giving of reasons’ said Lord Denning, M.R. … ‘is one of the fundamentals of good administration’ (page 223). Bearing in mind the vast differences which exist between our people and those in England in both social and cultural fields and especially their knowledge of, and attitudes towards decision-making public bodies, and taking into consideration the comparable backwardness of the majority of our people, I think it is in the interests of justice and fair play that the common law relating to the giving of reasons for decisions should be qualified in the manner I have endeavoured to indicate. In my considered opinion, a duty to give reasons and a right to them should be recognized by our law and treated as being of decisive importance in administrative justice (pages 223–224). Although a decision by the Minister under section 26 … is final and conclusive, that does not mean the decision is not subject to review by courts. That remedy is not excluded by those or similar words (page 224). Nullity of a decision is not protected by such words as ‘final’ or ‘conclusive’. It follows, as day follows night, that the decision which the applicant company has complained against … falls under this Court’s surveillance. It should, perhaps, also be pointed out that neither the failure nor the refusal of a decision-maker to give reasons for his decision is a sufficient exclusion of the Court’s surveillance (page 224). But it is a rule of common law that where a determination by a tribunal has been quashed by certiorari, the court may, in its discretation, refrain from awarding a mandamus to direct the tribunal to redetermine the matter if

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satisfied that the tribunal will duly observe the law upon rehearing, notwithstanding that the court could have effectively enforced an order of mandamus (page 224). The law is that delegation does not imply a parting with power by the person who grants delegation (page 225). While I do not case (sic) any aspersions upon the ability of the Commissioner to deal with the reference with an impartial mind, I feel that, for justice not only to be done, but also to be seen to be done, the reference should now be determined by someone else, the Minister himself. I entertain no doubt that I have inherent power to make the order of mandamus notwithstanding that there is no prayer for it (page 225).

Cases referred to: Breen v. Amalgamated Engineering Union and Others (1972) 2 Q.B. 175. Gordon Dadds & Co. v. Morris and Others (1945) 2 All ER 101. Healey v. Ministry of Health (1954) 2 All ER 580. Huth v. Clarke (1890) 25 Q.B.D. 391. Manton v. Brighton Corporation (1951) 2 All ER 101. Nyali v. A.G. (1955) 1 All ER 646. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694. R v. Medical Appeal Tribunal, ex p. Gilmore (1957) 1 All ER 796; 1 Q.B. 574. R. v Gaming Board for Great Britain, ex parte Benaim and Khaida (1970) 2 All ER 528. Taylor v. National Assistance Board (1957) 3 All ER. 703. Tehrani and Another v. Rostro (1972) I Q.B. 187.

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Tito Korneli v. Geofffrey B. Mshana and Another [Court of Appeal of Tanzania] [1981] TLR 128 Land law – Customary land law – Consequences of failure to comply with consent provisions – Administrative law – Ultra vires – Delegation of power – Meaning of purported execution of functions. Facts: The appellant was Chairman of Loruvani Ward Development Committee. One Lokaji Meitoris had, under customary law, a piece of land in that village. In March 1972, Lokaji sought permission from Arusha District Council to sell his agricultural land to the respondents. The respondents bought the piece of land and planted more crops and built a house on that piece of land. Subsequently, the sale of the piece of land became a centre of a dispute, and the Ward Development Committee, chaired by the appellant, resolved to destroy the respondents’ crops and building. That was carried out. The Committee had doubted the validity of the sale on the ground that the consent provisions as provided in local government statutes had not been followed. The respondents argued that the Council’s Chief Executive Officer had consented to the sale and that he had been a witness to the sale. The respondents successfully sued the appellant in the High Court. Held (dismissing the appeal, albeit for different reasons): (1)

Unfortunately the learned judge did not attempt to define the meaning of the expression “the purported execution of the functions of ” the Ward Committee {as provided in section 16 of the Ward Development Committee Act, 1969}. There are two ways of looking at this problem: firstly by construing the purported execution of the functions of the Committee as referring to actions done in excess of jurisdiction of the Committee but relating to the functions of the Committee; or secondly, as referring to actions done by the Committee in excess of jurisdiction and unrelated to the established functions of the Committee. For example, if the Ward Development Committee ‘schemes for development in an area’ but without the approval of the Minister, such action would be done in excess of the Committee’s jurisdiction but would relate to the established functions of the Committee. But if the Committee sits as a court of law and in so doing tries and convicts a suspected murderer and sentences

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him to suffer death by hanging, such an action would be both in excess of jurisdiction and unrelated to the established functions of the Committee. Can it be said that a Ward Development Committee in both these examples would be purporting to execute its functions? We would say that only the first example qualifies (page 132). In the present case the learned trial judge concluded that it was not one of the established functions of the Loruvani Ward Development Committee to deal with land transactions between individuals. On the evidence adduced at the trial and on a proper construction of the provisions of S. 5 of the Ward Development Committee Act, 1969 … the learned judge was correct in his conclusion. It must follow, therefore, that the actions of the Loruvani Ward Development Committee in general, and those of the appellant in particular, in destroying the crops and building of the respondents were not done in a purported execution of the functions of the Loruvani Ward Development Committee and consequently not protected by the provisions of S. 16 of the Act (page 133). The learned trial judge appears to have thought that the Chairman of the Land and Natural Resources Committee was acting on behalf of the Committee itself. With due respect to the learned trial judge, there is no basis for such view. Firstly, there is absolutely no evidence to suggest that the Chairman had authority to act on behalf of the Committee. Secondly, since the Committee’s authority is delegated to it by the District Council, the Committee cannot in turn delegate without express permission on the principle of ‘Delegatus non potest delegare’ that is, a delegate cannot delegate (page 136). Moreover the appellant together with the Chairman and District Executive Officer could not have acted as a sub-committee of the appropriate committee since S. 33(1) of the Local Government Ordinance expressly excludes executive functions from delegation to a sub-committee. The approval of transactions of sale of land is an executive function. Furthermore, the conduct of these officials cannot give rise to an estoppel against the land authority. It is established law that there is no estoppel against statutory provisions (pages 136–137). Let us not (sic) turn to Rule 14 of the Arusha Native Authority (Consolidation) Order, 1959. It contains a provision which declares the specific consequences of unauthorized transaction of sale thus: “Any sale conducted in contravention of the Order is invalid.” What then does the term “invalid” mean? It certainly cannot mean consequences which are lesser that those envisaged by the term “inoperative” in S. 19 of the Freehold

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Titles (Conversion) and Government Leases Act. It certainly means null and void, and as such, it cannot pass any legal title to hold land falling within the scope of Rule 14. This means in effect that the transactions of sale between Lokaji s/o Meitoris and the respondents did not transfer any legal title to the respondents. The legal title remained vested where it had been, that is, in the hands of Lokaji s/o Meitoris (page 139). However, it is common ground that the respondents entered into actual occupation of the land. They did not do so by force or trickery, but were permitted in broad daylight by Lokaji s/o Meitoris to enter into possession. There is nothing in the Arusha Native Authority (Consolidation) Order, 1959 which prohibited Lokaji s/o Meitoris from allowing the respondents to enter into possession of that land. What the Order prohibits is a sale without the consent of the Land Authority and occupation of unoccupied land without the consent of the Land Authority. The question then is what rights did the respondents acquire under Lokaji Meitoris’ permission? We are satisfied that the respondents acquired rights which are in the nature of a licence (page 140). … it must follow that the appellant’s actions in entering and destroying the respondents’ improvements on that land, are those of a trespasser, since he had no title to the land. So, the learned judge was correct … in condemning the appellant to pay damages and costs and in restoring the land to the respondents (page 140).

Cases referred to: Broad Smith v. Draeger (1901) 2 Ch. 86. J.K. Chatrath and Another v. Shah Cedar Mart (1967) E.A. 97. Mistry Amr Singh v. Serwano Wafunira Kulubya (1963) E.A. 408. Mlay v. Phoneas (1963) E.A. 563. Sajan Singh v. Sardara Ali (1960) AC 167. The National Bank of Commerce v. Manubhai Shankarbhai Desai and Others (1969) HCD 206.

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James Bita v. Idd Kambi [High Court of Tanzania] [1979] LRT 9 [Mfalila, J.] Land – Overall control – Jurisdiction of Courts in cases challenging Government actions – Abdication of function by courts – Court succumbing to outside pressure. Facts: Appellant sued respondent in a primary court claiming ownership of a piece of land. The court found for the appellant. The respondent filed an appeal in the district court. But before the appeal was heard the district magistrate received a letter from a Chama Cha Mapinduzi (CCM) District Secretary telling him that the matter was political and so the District Magistrate should not decide the appeal without consulting the Party. The District Magistrate succumbed and threw the whole dispute to the Party for investigations. This was done and the village authorities were called upon to re-allocate the piece of land to the more deserving of the two contestants. Since it was the same village authority that had earlier allocated the plot to the respondent, it reached the same decision and sent it to the district magistrate. While complaining against the unfairness of the decision, the district magistrate said that he was bound by the village decision as village councils had final say over all land matters within the village as per section 12 (1) and (9) of the Villages and Ujamaa Villages (Registration, Designation and Administration) Act, 1975. Held (quashing the irregular proceedings): (1)

It is true that the Village Council has final say over all related matters within the boundaries of the Village, just as the Government of the United Republic has final say over all matters within Tanzania, but this does not mean that a subject cannot challenge the actions of the Government of the United Republic in a court of law, indeed the Government of the United Republic is taken to court by individual subjects who feel aggrieved by its actions every so often. Similarly the village governments with their supreme authorities within the village, can be taken to court by anyone aggrieved by their actions; S. 11 of the Act is very clear on this (page 115).

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… What cannot be forgiven is the ignorance of the District Magistrate who abdicated from his functions as a judicial officer and avoided adjudicating upon a dispute between two subjects by throwing it back to the Party. The judiciary is an instrument of state set up to adjudicate impartially disputes between subject and subject or subject and Government. Judicial officers at any level should never flinch from performing this sacred duty (page 115). In essence therefore this appeal is against the Party decision. As I have no constitutional powers to hear appeals against Party decisions this appeal is incompetent and I have to strike it out, as I quash the irregular proceedings in the District Court, with an order that the record be remitted to the District Court which shall hear the appeal as presented to it by the respondent against the decision of the Primary Court (pages 115–116).

No cases referred to.

CHAPTER FOUR PREROGATIVE ORDERS AND ALTERNATIVE REMEDIES Introduction Prerogative orders or remedies are a family name for remedies of certiorari, mandamus, prohibition and habeas corpus. As we have seen earlier, remedies of certiorari and prohibition are remedies which issue from the High Court and both are designed to keep inferior courts and tribunals within their proper jurisdiction. In his book Administrative Law in East Africa, P.A. Olumede describes certiorari in the following terms (page 187): Certiorari is an order issued by the High Court which is used to bring to the High Court decisions of inferior tribunals or authorities in order that their legality may be investigated. The principle is that all inferior courts or tribunals have limited jurisdiction or powers and in the interest of the subject and good administration they must be kept strictly within legal bounds. The law provides that a prerogative remedy must be applied for within six months of the date of the decision sought to be quashed. Authorities on this subject have been at pains to clarify the difference between prerogative orders and appeals. In applications for prerogative orders, the court investigates the legality of an action or decision of an inferior tribunal or authority; but in an appeal the court considers the merits of the action or decision. The right to appeal is always conferred by statute but that of judicial review is conferred by the inherent supervisory power of the High Court. The distinction is aptly summed up by Prof. Wade in his book Administrative Law (ante) in the following terms (page 36): The system of judicial review is radically different from the system of appeal. When hearing an appeal, the court is concerned with the merits of 121

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the decision under appeal. When subjecting some administrative act or order to judicial review, the court is concerned with its legality. On appeal the question is ‘right or wrong?’ On review the question is ‘lawful or unlawful?’. Mandamus is different from certiorari or prohibition. Mandamus is also a prerogative remedy, but is used to compel a public officer or body to perform its duty correctly. As stated by Lord Goddard, C.J. in the English case of R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All ER 717 (page 719): Mandamus will lie to any person who is under a duty imposed by statute or by the common law to do a particular act. If that person refrains from doing the act or refrains from wrong motives from exercising a power which it is his duty to exercise, this court will by order of mandamus direct him to do what he should do. Prohibition is another prerogative remedy. Like certiorari and mandamus, it is a discretionary remedy. An order of prohibition is used to restrain the execution of an order or decision of an inferior tribunal or body. It may sometimes have the same effect as certiorari. Being a discretionary remedy, a prerogative order or remedy may be refused where there is an alternative remedy or where the applicant has not exhausted all other available remedies. The alternative remedy may be the availability of an appeal or the filing of a suit That was the position taken by the court in the case of Obadiah Salehe v. Dodoma Wine Company Ltd. (1990) TLR 113 and Moris Onyango v. Customs Department , Mbeya (1990) TLR 150 (infra). The authorities go on to state that such alternative remedy should be speedy, convenient, beneficial, or effective. That, however, is far from saying that the existence of alternative remedy is an automatic bar to judicial review. The availability of an alternative remedy is only one of the matters to be taken into account by the court. It was so held in the case of John Byombalirwa v. The Regional Commissioner and Regional Police Commander (1986) TLR 73. On this point, in the English case of R. v. Chief Immigration Officer, ex parte Kharrazi (1980)1 WLR 1396, Lord Goddard made the same point. He said (page 1403): If there is a convenient remedy by way of appeal to an adjudicator, then certiorari may be refused; and the applicant left to his remedy by way of appeal. But it has been held on countless occasions that the availability of an appeal does not debar the court from quashing an order by prerogative writ, either habeas corpus or certiorari.

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In the case of Shah Vershi Devshi & Co. Ltd. (1971) EA 289, the Kenya High Court had occasion to deal with the question of alternative remedy and made the following observations (page 294): Ordinarily the High Court will decline to interfere until the aggrieved party has exhausted his statutory remedy …. But this is a rule of policy, convenience and discretion, rather than a rule of law. In other words, the existence of a right of appeal is a factor to be taken into account: it does not bar the remedy {of an order of certiorari}, especially where the alternative is not speedy, effective, and adequate. Some cases in this chapter deal with the question as to when prerogative orders, like certiorari, will lie. Such an order will lie, it has been held, where the person making a decision sought to be challenged was discharging a public function conferred on him by statute or common law; that is, that the person or body had legal authority to determine questions affecting the rights of subjects.

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Alfred Lakaru v. Town Director (Arusha) [High Court of Tanzania] [1980] TLR 326 [Maganga, J.] Jurisdiction of High Court to make orders of mandamus and other prerogative orders – Section 2 (2) of the Judicature and Application of Laws Ordinance Cap. 453 – Conditions precedent to issuance of order of mandamus – Leave to apply for – Undue delay in moving the court. Facts: The applicant had been renting Stall No. 17 in Arusha Central Market since 1955 at the rate of Shs. 45/- per month where he was selling vegetables. On 4th May 1979 he was evicted from the Stall on grounds, inter alia, that he was operating without a licence. The applicant challenged his eviction by seeking order of mandamus. Apparently, he had not been given leave to apply for such an order and he had not, prior to filing his application, demanded performance from the respondent. Besides it was not until September 1979 that the applicant moved the Court. Held (dismissing the application): (1)

The jurisdiction of the High Court to make orders of mandamus or any other prerogative writs is given by S. 2 (2) of the Judicature and Application of Laws Ordinance, Cap 453. The order of mandamus is defined in Halsbury’s Laws of England (3rd Edition, Vol. 2, page 84) as follows: The order of mandamus is an order of most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his nature of a public duty ….

The conditions precedent to issue of mandamus as listed in the book … are the following: Legal right must exist; Duties must be public;

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Right must be in applicant; Application must be made in good faith; Demand for performance must precede application; There must exist possibility of enforcement; No other legal remedy.

(2)

In the affidavit filed in support of this application it is nowhere stated that any of the conditions precedent listed above exist for the order of mandamus prayed for to issue. There is not even an averment that there had been demand for performance before this application was filed. But even had the affidavit shown the existence of the conditions precedent, it still appears to me that the application as filed is incompetent for the reason that no leave to file the application had been granted. The procedure for orders of mandamus and the other writs … appear (sic) to make it mandatory for leave to apply to be obtained before an application for any of the writs is made (page 327). Finally I would wish to point out that although the applicant was evicted from the stall in May, 1979 he did not take any steps against the order of eviction till September, 1979 when he filed this application. The reasons for the five months’ delay in challenging the order terminating the tenancy has not been given. The principle in granting orders of mandamus is that “except where the delay is duly accounted for, mandamus will not be granted unless applied for within a reasonable time after the demand and refusal to do the act”. As I have already pointed out, no evidence of demand or refusal has been furnished. This application could not therefore have been granted in the absence of reasons for the delay even had the application been properly filed (page 328).

No cases referred to.

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Obadiah Selehe v. Dodoma Wine Company Limited [High Court of Tanzania] [1990] TLR 113 [Masanche, J.] Mandamus - Alternative remedy - Discretionary Pover of Existence of Contractual relationship. Facts: The applicant was employed by the respondent as a laboratory assistant and was made a production supervisor in the wine production section. In December 1986 it became apparent that a group of employees was making wine outside normal working hours which they smuggled out of the gate and sold it in town. It appears that the applicant was in that group. He was dismissed. Dissatisfied, the applicant filed a Chamber Application for leave to apply for an Order of certiorari and mandamus. Held (refusing the application): (1)

The law about orders of Certiorari and Mandamus is quite clear in this country, and I can do no better than quote my brother Samatta, J. (as he then was) in the case of Moris Onyango v. The Senior Investigating Officer, Customs Department (1980) TLR 150 wherein he said: It is an entirely correct proposition to say that an order of mandamus is a discretionary remedy. The order is not one of right and it is not issued as a matter of course. The purpose of the order is to supply defects of justice. It will therefore issue where there is no specific legal remedy for enforcing the specific legal right claimed or where, although there is an alternative legal remedy, such mode of redress is considered by the Court to be less convenient, beneficial and effectual. As a general rule the court will refuse to issue the order if there is another convenient and feasible remedy within the reach of the applicant (pages 114–115).

(2)

In this instant matter the applicant was a worker, employed by DOWICO. There was, therefore, a contractual relationship between him and DOWICO,

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a contract of service. If, therefore, the applicant feels that he has been unjustly dismissed, he may sue the employer for wrongful dismissal (page 115). Cases referred to: Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84. Lakaru v. Town Director (Arusha) (1986) TLR 326 (q.v). Onyango v. Senior Investigating Officer, Customs, Mbeya (1980) TLR 150.

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Jama Yusuph v. Minister for Home Affairs [High Court of Tanzania] [1990] TLR 80 [Kyando, J.] Deportation order, to whom directed? - Certiorari - Judicial review and appeal contrasted - Lack of Power. Facts: The applicant was a Tanzanian of Somali origin. The Minister for Home Affairs issued a deportation order against the applicant under section 24 of the Immigration Act on 10 April 1989. The applicant was arrested on 17 April 1989 and the deportation order was served on him on 19 April 1989. The applicant then filed an application seeking an order of certiorari. Under section 25 of the Act, the burden of providing that a person who is the subject of a deportation is a citizen of Tanzania lies on him. The applicant claimed that he was a citizen of Tanzania and had a Tanzanian passport, which fact the Court accepted to be true. Held (granting the application and quashing the Minister’s Order): (1)

(2)

In sum, even though it is not an easy or simple matter to interfere with or quash a Minister’s decision or order, courts have authority or power, even a duty, to quash them in proper and fitting cases. In doing so, of course, the courts are not acting as appellate bodies over the ministers’ decisions or orders; they only investigate the legality or otherwise of a decision or order and make determinations on these accordingly. In other words, this power of the courts to review or investigate is not based on the merit, but on the legality, of the Minister’s decision or order (page 82). I am satisfied beyond doubt myself that the applicant is a citizen of Tanzania … [the Minister] acted beyond his power in making the deportation order against the applicant and acted plainly in breach of the provisions in the Immigration Act, 1972 …. These provisions do not empower him to deport Tanzanian citizens …. His order of deportation … was therefore contrary to law … (page 83).

Cases referred to: Congreve v. Home Office (1976) AC 629. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997

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John M. Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba [High Court of Tanzania] [1986] TLR 73 [Mwalusanya, J.] Prerogative orders – Certiorari – Mandamus – Prohibition – Judicial review – Discretion – Alternative remedy – Claim for damages in applications for prerogative orders – Efficacy of judicial review. Facts: In 1983, Parliament passed two Acts, namely, the Economic Sabotage (Special Provisions) Acts Nos. 9 and 10. These laws were enacted following a government decision that all economic saboteurs be arrested, prosecuted before a Special Tribunal and their properties seized. The Regional Commissioners and their subordinates, in effect, were to implement those laws.In the course of implementing those laws, the applicant was arrested and many of his properties were seized. The applicant was charged before the Special Tribunal with the offence of hoarding. In the end he was acquitted and the Special Tribunal ordered that the applicant’s properties which had been seized, or the value thereof, be restored to the applicant. Despite the Special Tribunal’s order and the applicant’s requests to the respondents to return the properties to him, the respondents did nothing. The applicant then filed an application for the issue of mandamus and also claimed special damages. Held (granting the application for mandamus): (1)

For all that we know mandamus is the procedure whereby a citizen with sufficient legal interest may apply to the High Court to compel a public officer to perform a public duty entrusted to him. It is said it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual , provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a statutory or legal duty to do something or not to do something; the duty itself being of an imperative nature. From the foregoing discussion it has been said there are few conditions to be proved in order for an order of mandamus to issue. These are:

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(i) (ii)

(iii) (iv) (v) (2)

(3)

(4)

(5) (6) (7)

The applicant must have demanded performance and the respondents must have refused to perform. The respondents as public officers must have a public duty to perform imposed on them by statute or any other law but it should not be a duty owed solely to the state but should be a duty owed as well to the individual citizen. The public duty imposed should be of an imperative nature and not a discretionary one. The applicant must have a locus standi, that is, he must have sufficient interest in the matter he is applying for. There should be no other appropriate remedy (page 76).

The courts are reluctant to direct an order of mandamus against executive officers of a government unless some specific act or thing which the law requires to be done has been omitted (pages 82–83). Judicial review is an important weapon in the hands of judges of this country by which an ordinary citizen can challenge an oppressive administrative action. And judicial review by means of prerogative orders (certiorari, mandamus and prohibition) is one of those effective ways employed to challenge administrative action (page 75). Equally however it is important to realize that judicial review is not the same thing as substitution of the court’s opinion on the merits for the opinion of the person or body to whom a discretionary decision-making power has been committed (page 75). Therefore the existence of a discretion is no longer a bar to issuing of an order of mandamus (page 86). {Alternative remedy} is only one point to be taken into account in exercising my discretion as to whether I should issue an order of mandamus or not (page 88). Finally I note the applicant has inter alia claimed special damages. These claims are improper as this is not an appropriate forum. An order of mandamus can only be made for the return of the seized goods … (page 90).

Cases referred to: D.C. Kiambu ex parte Nathan Njau (1960) E.A. 109. De Souza v. Tanga Town Council (1961) E.A. 377. Enderby Town Football Club v. The F.A. (1971) 1 All ER 215. Ex parte J.C. Patel (1954) 27 K.L.R. 140. Finnigan v. New Zealand Rugby Football Union (Incorporated) (1986) LRC (Const.) 877.

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Gouriet v. Union of Post Office Workers and Others (1978) AC 435. R.I.C. v. Small Businesses (1982) AC 617. In re: Patel (1956) 2 TLR (R) 227. In the Matter of an Application by Mohamed Aslam Khan, Miscellaneous Civil Case No. 22 (1966) (unreported). Northern Tanzania Farmers v. W.H. Shellukindo (1978) LRT 37. Patman Garments Industries v. Tanzania Manufacturers Ltd. (1981) TLR 303. People v. Board of Education of City of Chicago 323 US 733. R. v. Commissioner for Special Purposes of Income Tax (1888) 21 Q.B. 313. R. v. Gaming Board, ex parte Benaim and Khaida (1970) 2 All ER 528. R. v. Mayor of Rochester (in the Parish of Strood) 119 E.R. 1490. R. v. Mohamed s/o Salehe (1975) LRT 32. R. v. The Commissioner of Metropolitan Police, ex parte Blackburn (1968) 2 Q.B. 118. Re an Application by Bukoba Gymkhana Club (1961) E.A. 478. Re an Application by Fazal Kassam (Mills) Ltd. (1960) E.A. 1002. Re an Application for A.G. of Tanganyika (1958) E.A. 482. Re an Application by Mwau (1985) LRC (Const.) 444. Said Juma v. R. (1968) HCD 158.

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Patman Garments Industries Ltd v. Tanzania Manufacturers Ltd [Court of Appeal of Tanzania] [1981] TLR 303 Section 10 of Land Ordinance – President’s power of revocation of right of occupancy – Grounds for revocation – Court’s powers of judicial review of executive action. Facts: Patman Garments Industries were given an offer of a Right of Occupancy on 24 January 1978 and they accepted it on 25 January 1978. On 5 February 1979 the Right of Occupancy was revoked under section 10 (1) of the Land Ordinance. Meanwhile, either on 1 April or 29 May 1978, Tanzania Manufacturers were issued with an offer of a Right of Occupancy over the same plot by the Director of Land Development Services. In the High Court, it was held that the Right of Occupancy that which was granted to Patman Garments was perfectly good and that which was granted to Tanzania Manufacturers on 29 May 1978 up to the day the revocation was made was colourable and inoperative. However, while holding that judicial review had not been excluded by section 10 (1) of the Ordinance, the leaned trial judge held that the President had acted under section 10 (2) of the Ordinance and so he held that the revocation was proper and so Tanzania Manufacturers’ title was good. On appeal the central question was whether the revocation order was lawful or otherwise. Held (allowing the appeal): (1)

(2)

As in our opinion the functions of the President under S. 10 of the Ordinance cannot, even remotely, properly be categorized as being judicial or quasijudicial proceedings, we think the learned judge erred in thinking that the functions of the President under subsection (1) of S. 10 were in the nature of a quasi-judicial proceeding. In any case it seems to us irrelevant in a case such as the present, to draw the traditional distinction between judicial and administrative or executive functions of public officials. A number of eminent judges have held that such a distinction is no longer valid and should be abandoned (pages 307–308). With respect we think the learned trial judge is correct in saying that courts have power, which they have always had, to review administrative action which is challenged before them. While his discussion on the power of the

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(3)

(4)

(5)

(6)

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courts to review administrative action was made with reference to executive functions of the President under subsection (2) of S. 10 of the Land Ordinance we are of the firm view that his reasoning on the matter equally applies to a decision made under the provisions of subsection (1) of the section (page 309). We can find nothing in reason or common sense to indicate that the principle by Lord Denning {in Congreve v. Home Office} is inapplicable to a case involving a revocation of a grant of a right of occupancy (pages 309–310). ... while the President has power under subsection (1) of S. 10 of the Land Ordinance to revoke any grant of a right of occupancy for good reason , he cannot do so unless the conditions prescribed by law for its exercise are fulfilled. The Act states in no unambiguous terms that “it shall not be lawful for the President to revoke a right of occupancy granted as aforesaid save for good cause” (page 310). We have, we think, already abundantly demonstrated why the decision made by the President revoking the grant of a right of occupancy held by the appellants is bad in law. It is unlawful because it was made for no good cause and was, therefore, an unlawful exercise of power conferred by subsection (1) of S. 10. We are, of course, fully aware of the frantic efforts made by some officers of the Directorate of Land Development Services to solve the problem created by them through double allocation of Plot No. 9A. Be that as it may, we do not think the power of revocation conferred under subsection (1) of S. 10 of the Land Ordinance was meant for the convenience of the Directorate of Land Development Services (page 310). Mr. Lakha has submitted that the only way to impugn the revocation order was by way of certiorari and that the Attorney General must be included if such an order was challenged. In our view, both at the trial and this appeal the central issue was whether the revocation order was lawful or otherwise. Mr. Lakha had both here and below vigorously argued as to its validity. If Mr. Lakha and/or Land Officers had wanted the Attorney General to support the order, they could easily have done so. The appellants were confronted with the revocation order when the respondents filed their reply and the appellants book (sic) the point that the order was unlawful. An application by way of certiorari is one of the means, not the sole means, of challenging such an order, and we are satisfied that in the circumstances of this case, the appellants were entitled to challenge the revocation order in the way it was done (page 310).

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Cases referred to: Congreve v. Home Office (1976) Q.B. 629. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997. R. v. Gaming Board , ex parte Benaim (1970) 2 Q.B. 417. Re: H.H. (1967) 2 Q.B. 617. Schmidt v. Secretary of St for Home Affairs (1969) 2 Q.B. 149.

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Moris Onyango v. Customs Department, Mbeya [High Court of Tanzania] [1980] TLR 150 [Samatta, J.] Mandamus – Discretionary remedy – Purpose of order of mandamus – When it may be granted or refused – Alternative remedy, how convenient and feasible? Facts: The applicant applied for an order of mandamus directing the respondent to restore to the applicant 35 bags of fish seized from him. Applicant argued that the seizure of the fish was unlawful. The respondent argued that the seizure was carried out because it was reasonably believed that the applicant was about to export the goods illegally to Zambia. Held (dismissing the application): (1)

(2)

It is an entirely correct preposition to say that an order of mandamus is a discretionary remedy. The order is not one of right, and it is not issued as a matter of course. The purpose of the order is to supply defects of justice. It will therefore issue where there is no specific legal remedy for enforcing the specific legal right claimed or where, although there is an alternative legal remedy, such mode of redress is considered by the court to be less convenient, beneficial and effectual. As a general rule, the court will refuse to issue the order if there is another convenient or feasible remedy within the reach of the applicant (page 151). If the applicant believes that the seizure of his property by the respondent is a violation of his legal rights, then it was open to him to invoke the provisions of S. 159 (4) of the East African Customs and Transfer Tax Management Act (page 151).

No cases referred to.

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Timothy H. M. Mwakilasa v. The Principal Secretary (Treasury) [High Court of Tanzania] [1978] LRT 38 [Samatta, J.] Mandamus – Leave to apply for mandamus. Facts: The applicant filed an application for an order of mandamus which he erroneously referred to as a “writ” against the Principal Secretary (Treasury) before obtaining leave of the court to file the application. Held (striking out the application) It is an admitted fact that the applicant has not obtained any leave from this court to make his application. That being so, the purported application is incompetent in law and this court cannot entertain it (page 194). Cases referred to: District Commissioner, Kiambu v. R. and Others ex parte Ethan Njau (1960) E.A. 109. Farmers Bus Service and Others v. Transport Licensing Appeal Tribunal (1959) E.A. 779. Re an Application by Fazal Kassam (Mills) Ltd. (1960) E.A. 1002.

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De Souza v. Tanga Town Council [Court of Appeal for Eastern Africa] [Sir Kenneth O’Connor, P., Sir Alastair Forbes, V.-P., and Gould, J.A.] [1961] E.A. 377 Certiorari and mandamus – Principles of natural justice – Right to know accusation – Immaterial that same decision would have been reached – Reach just ends by just means – Laid down procedure to be followed. Facts: Two councilors made a complaint against the appellant who was at one time an acting fire master employed by the respondent. One of the complainants was the chairman of the Traffic, Fire, Lighting and Police Liaison Committee and the allegation against the appellant was that a fireman had been found during normal working hours in appellant’s premises in circumstances indicating that he was employed as a personal servant of the appellant and not working upon his proper duties. The complaint was made to the assistant engineer in charge of department control, The Fire Bridge. The town clerk investigated the complaint who reported to the Committee at which one of the complainants presided. Appellant was summoned before the Committee and was heard. It was later resolved that he be suspended from duty and recommended to the Town Council that subject to any recommendation of the Finance Committee on appeal by the appellant, he be dismissed. The appellant and his advocate were summoned to appear before the Finance Committee. They were kept for more than 15 minutes, while the Finance Committee held a private discussion at which both complainants were present although they were not members of that Committee. The nature of the discussion was not disclosed to the appellant and his advocate. When hearing commenced, the appellant’s advocate asked for particulars of the charges against the appellant but was told that his client had already been informed of these and the Committee refused to give him any other information. The advocate then withdrew from the proceedings with leave of the Committee. Eventually the Committee recommended dismissal of the appellant which the Council confirmed. The appellant applied to the High Court for orders of certiorari and mandamus to quash the recommendation of Finance Committee and order it to hear the appeal in accordance with the principles of natural justice. The High Court dismissed the application, holding that Staff Regulations of the Council did not provide for judicial or any quasi-judicial proceedings and that the Committee could collect information in

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any way it wanted, provided fair opportunity is given to the parties. The appellant appealed to the Court of Appeal for East Africa. Held (allowing the appeal and granting certiorari and mandamus): (1)

z(2)

(3)

(4) (5)

(6)

(7)

If a statute prescribes, or statutory rules or regulations binding on the domestic tribunal prescribe, the procedure to be followed, that procedure must be observed (page 386). If no procedure is laid down, there may be an obvious implication that some form of inquiry must be made such as will enable the tribunal fairly to determine the question at issue. In such a case the tribunal, which should be properly constituted, must do its best to act justly and to reach just ends by just means … it must act in good faith and fairly listen to both sides. It is not bound, however, to treat the question as if it were a trial: it need not examine witnesses; and it can obtain information in any way it thinks best (page 387). A member of the tribunal may, it seems, question witnesses in the absence of the other members of the tribunal and of the defendant and it is not necessarily fatal that the evidence of witnesses (including that of the complainant) may have been taken by the tribunal in the absence of the defendant: University of Ceylon v. Fernando (pages 636 and 639). In this respect Fernando’s case seems to go further than some previous eminent opinions (page 387). The person accused must know the nature of the accusation made (Per Sir Kenneth O’ Connor, P., page 387). A fair opportunity must be given to those who are parties to the controversy to correct or contradict any statement prejudicial to their view … and to make any relevant statement they may desire to bring forward (page 387). The tribunal should see that matter which has come into existence for the purpose of the quasi-lis is made available to both sides and, if the quasi-lis has started, if the tribunal receives a communication from one party or from a third party, it should give the other party an opportunity of commenting on it (page 387). It must have appeared to the appellant that the man who had instituted the complaint against him had first considered it on the Traffic and Fire Committee and was now, with his co-complainant, closeted with the Appeals Committee while he, the appellant, was not permitted to go in. With respect, I disagree with the learned judge when he dismisses this objection merely by saying that there was nothing to show that the presence of the two complainants influenced the Committee’s decision and that he could not say

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139

that their mere presence was necessarily prejudicial to the appellant. I would respectfully adopt the words of Lord Wright in General Medical Council v. Spackman … (page 644): If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of departure from the essential principles of justice. The decision must be declared to be no decision. If the presence of the complainants with the Appeals Committee in the absence of the appellant did constitute a departure from the principles of natural justice it is immaterial that their presence may not have influenced the decision (page 388). (8)

It is no answer to say that the appellant knew what the evidence against him had been before the Traffic and Fire Committee. He did; but he did not know of which charges he had been found guilty and what were the Committee’s grounds for their proposal to dismiss him …. Regulation 10 was not complied with and, in my opinion, the principle of natural justice that a fair opportunity must be given to contradict any statement prejudicial to the view of the defendant was contravened also, since the appellant did not sufficiently know what was the case against him at that stage (page 389).

Cases referred to: Board of Education v. Rice (1911) AC 179. Byrne v. Kinematograph Renters Society Ltd (1958) 2 All ER 579. De Verteuil v. Knaggs (1918) AC 557. Errington v. Minister of Health (1935) I KB 249. General Medical Council v. Spackman (1943) A.C. 627. Johnson & Co. (Builders) Ltd v. Minister of Health (1947) 2 All E.R. 395. Local Government Board v. Arlidge (1915) AC 120 R. v. Electricity Commissioner (1924) I KB 171. R. v. Agricultural Land Tribunal ex parte Bracey (1966) I W.L.R. 911. University of Ceylon v. Fernando (1960) I All ER 631.

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Re: An Application by Fazal Kassam (Mills) Ltd. [H.M. High Court of Tanganyika] [1960] E.A. 1002 [Sir Ralph Windham, C.J.] Administrative Law – Writs and Orders of mandamus and certiorari compared – History – Substantive justice – Courts’ discretion to grant mandamus and certiorari – Alternative remedy. - Legal personality. Facts: The applicants’ application to be granted a coffee exporter’s licence was refused by the Coffee Licensing Authority. On two occasions the applicants had exercised their right of appeal to the Minister against the respondent’s refusal but were briefly told on each occasion that their appeals had been rejected, and no reasons were given for the rejection. The applicants then filed an application for relief by way of certiorari and mandamus to the end that the rejection by the Coffee Licensing Authority of their application for a coffee exporter’s licence should be quashed and that the Authority be required to hear and determine the application according to law. The respondent objected to the application. The first ground was that the applicants had wrongly asked for orders of certiorari and mandamus instead of suing out and demanding the issue of prerogative writs of those descriptions because the court had no jurisdiction to grant the relief sought by the application. Secondly, it was contended that since applicants had a right of appeal, in the absence of special circumstances, the applicants were precluded from seeking relief by any of mandamus. The applicants had been furnished with grounds for refused only four days from the date of expiry of the period of appeal. It was also discovered that the Coffee Licensing Authority was neither a corporation nor a firm but composed of individual appointees. Service had been made on the Authority. Held (rejecting the preliminary objection): (1)

… on the civil side, there being no mention of the prerogative writs in the Civil Procedure Code, the jurisdiction of the High Court of Tanganyika to grant relief by way of certiorari or mandamus derives through the operation of Article 17 (2) of the Tanganyika Order-in-Council, 1920, from the English common law as it existed in 1920, where under the relief was granted by issue of the prerogative writs (page 1003).

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(2)

(3)

(4)

141

Nevertheless, I do not think that anything which the applicants have done up to this stage, or any error in form of procedure on their part, is such as to preclude this Court from granting to them the relief which it does have power to grant, that is to say, from issuing writs of certiorari and mandamus … and while fully conscious of the difference between the two forms of remedy in their historical origins, the procedure by writ being old and that by order being modern, I consider that the distinction today is not fundamental, and is little more than one of terminology (pages 1003–1004). What the applicants have here asked for is the making of two orders for mandamus and for certiorari. I am satisfied that on such application this Court can properly issue two writs of the same description. That is the substance of the relief sought; and this Court, unless by law specifically excluded, will always look to substance and reality rather than mere form and phraseology (page 1004). In any case, it is not the law that the Court will always refuse mandamus when the applicant could have appealed. The matter is one of discretion, to be carefully and judicially exercised, the position being simply that (as stated in Halsbury’s Laws of England, 3rd Edition, Vol. II, page 107): The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus, when there is an alternative specific remedy at law which is not less convenient, beneficial or effective (page 1005).

(5)

The Coffee Licensing Authority is neither a corporation nor a firm nor an individual …. It is an unincorporated body … That being so, then its Members … ought to have been served individually … Before the hearing of this application on its merits, therefore, notice must duly issue to the Chairman and each of the members of the Coffee Licensing Authority (page 1006).

Cases referred to: Campbell v. Thomson (1953) I All ER 831. D.M.T. v. The Transport Licensing Authority of Tanganyika and Another (1959) E.A. 403. R. v. Thomas (1892) 1 Q.B. 426. Taff Vale Railway Company v. Amalgamated Society of Railway Servants (1901) I KB 170.

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Ndesamburo v. Attorney General [High Court of Tanzania] [1997] TLR 137 [Msumi, J.K.] Certiorari – Mandamus – Principles of natural justice. Facts: The applicant was allocated Plot No. 3 at Ununio area, Kinondoni District. Subsequently he read in “Uhuru” Newspaper that his title for the plot had been revoked by the Minister for Lands and Housing upon the President so signifying. The applicant contended that he had partially developed the plot and produced a receipt for his application for a building permit. The applicant gave reasons why his title should not be revoked, but it would seem that his reasons by way of showing cause had not been taken into account by the Minister or the President. The applicant then filed an application in the High Court for orders of certiorari and mandamus. Held (granting the application): The principle of natural justice which requires a person to be afforded opportunity to defend himself necessarily implies that the person determining the matter will consider the party’s defence before making a decision which affects the rights of such party. Failure to consider such defence is as bad as not affording the party an opportunity of the right of hearing (page 140). Case referred to: Agro Industries v. A.G. (1994) TLR 43.

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Alhaj A.J. Mungula v. Baraza Kuu La Waislamu Tanzania. [High Court of Tanzania] [1997] TLR 50 [Mapigano, J.] Facts: The applicant was the Executive Secretary of BAKWATA up to February 1996 when he was sacked without being afforded an opportunity to be heard by his employer which the applicant described as an incorporated religious organization whose objective was to promote the Islamic faith. The applicant sought leave of the High Court to apply for an order of certiorari to quash the decision of BAKWATA. Held (rejecting the application): (1)

(2)

BAKWATA is admittedly a private body. There was a time when certiorari did not lie against private bodies. It is no longer so. It is now accepted that such order can lie against such bodies provided the body in question discharges a public function. The determinant factor is what a body is doing and not how it was formed (page 51). Even supposing that Bakwata were still performing {officiating of marriage ceremonies and conciliating matrimonial difficulties} such function, I would still hold that this Court is not competent to entertain the intended application. I would take the view that judicial review would be confined to the decisions of Bakwata which pertain to such legal function, and that there would be nothing which would sufficiently bring its decision on matters respecting the domestic relationship between it and its officers within the reach of judicial review (page 52).

Case referred to: R. v. Panel on Takeovers and Mergers (1987) 1 All ER 564.

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M.A. Ndolanga and Others v. National Sports Council [High Court of Tanzania] [1996] TLR 325 [Bubeshi, J.] Administrative law – Certiorari – Appeal and certiorari distinguished – Bias Ouster clauses. Facts: The applicants were among members of the Executive Committee of the Football Association of Tanzania (FAT) for the period of 1993–1995. On 28 March 1995, the Chairman of the respondent appointed an ad hoc Screening Committee to screen names of all potential contestants for posts in a new FAT leadership. The National Sports Council’s Chairman chaired meetings of that ad hoc Committee. After the ad hoc Committee had finished its job, it was announced that the applicants had been disqualified from contesting in the FAT elections which were to take place on 3rd April 1995. Dissatisfied, the applicants appealed to the Minister responsible for sports against the decision of the ad hoc Committee. While the appeal was pending before the Minister, the applicants filed an application in the High Court seeking orders of certiorari and mandamus. The National Sports Council is a body corporate established by Act No. 12 of 1967 as amended by Act No. 6 of 1971. Among its functions are to develop, promote, and control all forms of amateur sports on a national basis in conjunction with ports associations; the FAT Constitution provided that FAT elections at national level were to be supervised by the National Sports Council. However, no Rules had been made by the Minister under the Act as to how a screening committee was to be appointed, and so the Council adopted its own procedure. It was alleged by the first applicant that the Chairman of the National Sports Council had a grudge against him. Other questions which arose in the case were: whether the committee was lawfully constituted; whether the Committee conducted itself in accordance with rules of natural justice and fair play; and whether orders of certiorari and mandamus could issue against the respondents in the circumstances. Held (granting the application): (1)

While I agree with the respondents on ouster clauses as contained in the relevant laws, it is now settled, and there are authorities abound, that an applicant for the prerogative order of certiorari is not obliged to exhaust the

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(2)

(3)

145

prescribed administrative machinery before resorting to a court of law, where the applicant claims that the decision complained of was reached without jurisdiction or in contravention of the rules of natural justice (page 327). Proceedings for certiorari are quite different from proceedings by way of appeal … In proceedings for certiorari this court is required to exercise its supervisory function to ensure that a particular body acts in accordance with the rule of law (pages 327–328). It is trite to remark that an administrative body exercising functions that impinge directly on legally recognized interests, owes it as a duty to act judicially in accordance with rules of natural justice which basically means the adoption of fair procedure, which fundamentally demands freedom from interest and bias on the part of the administrative body and the right to a fair hearing for those who are immediately affected by its decision (page 333).

Case referred to: Metropolitan Properties Co. Ltd. v. Lannon and Another (1969) 1 Q.B. 577.

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Tanzania Dairies Ltd. v. Chairman, Arusha Conciliation Board and Isaack Kirangi [High Court of Tanzania] [1994] TLR 33 [Mroso, J.] Prerogative orders – Who may be parties to applications for prerogative orders – Certiorari – Mandamus – Discretion – To whom prerogative orders may be directed. Facts: One Isaack Kirangi had been an employee of the applicant. He was summarily dismissed by the applicant on the ground that he failed to produce to his employer original certificates which would have verified his qualification for the post of senior accountant which had been offered to him. Isaack Kirangi made a successful appeal to the first respondent, which ordered his reinstatement. As there was noncompliance with certain requirements under the Security of Employment Act, the applicant could not appeal against the award of the Conciliation Board; but believing that the Conciliation Board had acted ultra vires in hearing the reference, the applicant filed an application in the High Court for orders of certiorari and mandamus to quash the Board’s decision. One of the questions which arose in the application was whether it was proper to join Isaack Kirangi, who was an individual, as a respondent in the application. It was conceded that the Board had received the reference out of time. Held (granting the application): (1)

On reflection and in the absence of clear authority to the contrary, I think the applicant could validly join Isaack Kirangi as a second respondent, even though if the Court grants the orders applied, they can only be directed at the first respondent. I have come to hold this view because, according to Halsbury’s Laws of England, 1989 Edition, at 110, if an order nisi to an application for mandamus, for example, is given (I take this to be the equivalent of an order of leave to apply for the order of mandamus), ‘then notice has to be given to every person who, by affidavits on which the order is moved, appears to be interested in or likely to be affected by the proceedings, and to any person who, in the opinion of the court or judge, ought to have such notice’. The

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(2)

(3)

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phrase ‘every person’ does not appear to be restricted to the one to whom the court order would be directed but to anyone ‘who appears to interested in or is likely to be affected by the proceedings’. There can be no doubt that the second respondent is a person interested in and who is likely to be affected by the orders sought, if they are granted (page 35). The orders of certiorari and mandamus, among other prerogative orders, are discretionary and this court may refuse to grant them even where the right has been established (page 38). Traditionally the order of certiorari was directed against judicial or quasijudicial acts only. But, as was held in Assistant Registrar of Buildings v. Fredrick G. Kibwana, Mustafa J.A. said: An order of certiorari would lie from the High Court to an inferior court or tribunal of a judicial, quasi-judicial or even an administrative nature. The body would be a statutory or some sort of such authority such as a licensing or municipal or disciplinary body of person or persons having legal authority to determine questions affecting the rights of subjects.

A Regional (Labour) Conciliatory Board is a quasi-judicial body and would be subject to the supervisory power of the High Court. As Mustafa, J.A. also said in the case cited (supra): If such a body acts in excess of jurisdiction or fails to observe the rules of natural justice or there is a palpable error on the face of it, then, an order would issue. I think that in disregarding the fact that the reference was time-barred, the Board had committed a palpable error which went to jurisdiction (page 38). (4)

I shall grant the orders of certiorari and mandamus by ordering the proceedings in the Conciliation Board to be brought up and be quashed. I have come to this conclusion because I am aware of a growing trend in this country by various authorities to disregard legal requirements which are thought to be inconvenient or inexpedient (page 39).

Case referred to: Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84.

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The Assistant Registrar of Buildings v. Fredrick G. Kibwana [Court of Appeal of Tanzania] [Omar, Mustafa, JJ. A. and Mapigano, Ag. J. A.] [1987] TLT 84 Certiorari – Discretionary remedy – Alternative remedy. Facts: The respondent filed an application in the High Court against the appelant for an order of certiorari to issue to quash the decision of the appellant to terminate the respondent’s tenancy in the appellant’s premises. The High Court granted the application and quashed the appellant’s decision of terminating the tenancy and the respondent was restored as the lawful tenant of the respondent. The appellant appealed to the Court of Appeal. The most important ground of appeal was that the order of certiorari was bad in law. Held (allowing the appeal): In this case the learned judge held that since the tenant was not served with any demand notices for arrears of rent or notice to quit the premises, the tenant was condemned unheard which was in breach of rules of natural justice. Be that as it may, I hold … that certiorari being a discretionary remedy for the courts to issue, it cannot be issued in this case where there is already a contractual relationship between landlord and tenant – a relationship of a commercial or business nature. The recourse to the courts of law to adjudicate on the breaches of contract would be a better procedure (page 85). No cases referred to.

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Northern Tanzania Farmers’ Co-operative Society Ltd. v. W.H. Shellukindo (Preliminary Objection) [High Court of Tanzania] [1978] LRT 36 [Mwesiumo, J.] Jurisdiction of the High Court in applications for prerogative orders – Authority for existence of the High Court of Tanzania – Certiorari and its sources - Relevance of Government Proceedings Act to Judicial Review. Facts: The respondent in his capacity as Assistant Registrar of Co-operative Societies, published a General Notice in the Government Gazette giving notice that he intended to deregister the applicant upon publication of that Notice. The respondent had not given the applicant notice to show cause why such a step should not be taken. The applicant moved the High Court for an order of certiorari to quash the General Notice. The respondent raised a preliminary objection to the effect that an application for certiorari was not maintainable in Tanzanian courts. Held (overruling the preliminary objection): (1)

(2)

(3)

The High Court of this country is an organ deriving its establishment and existence by operation of the Constitution of this country. This organ unless otherwise as expressly restricted by the legislature, has unlimited criminal and civil jurisdiction pecuniarily and territorially (page 167). Certiorari is a legal action of a civil nature in the field of administrative law. The law regarding the judicial control of administrative and or quasi-judicial acts is basically derived from the common law that the High Court has a right to supervise and review decisions of inferior bodies or courts such as tribunals or magistrates. If inferior jurisdictions could be checked whenever they acted in excess or in default of their jurisdiction, there is no reason whatsoever why this principle does not apply mutatis mutandis to wrongful administrative acts. It is on this basis that the courts have maintained that administrative acts will be declared illegal if there is no jurisdiction, or there is abuse of jurisdiction to do what has been done (page 168). The “rule of law” which has been openly and vocally accepted and advocated by all those who matter in Tanzania demands proper limits on the

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exercise of power which power must first be given or approved by Parliament within definable limits and such limits must be consistent with certain principles of law such as the rule against natural justice (page 168). No doubt, as far as Tanzania is concerned, the source of the law on certiorari is the common law of England and it seems to have been applied in this country for many years, though, admittedly, with some variations in its manner of application in order to suit local circumstances (page 168). In my humble opinion, it could be said that wherever the legislature entrusts to any body of persons other than the superior courts the power of imposing an obligation upon individuals, the courts ought to exercise as widely as they can the power of controlling those bodies if they attempted to exceed or abuse or default their statutory powers (page 169). An order of certiorari is available from the High Court to review official judicial or quasi-judicial actions and oftentimes it lies as a substitute for an appeal in the proper sense of the word “appeal”. In other words it lies to determine whether inferior or to be less vulgar, junior tribunals acted within or abused or exceeded jurisdiction (page 169). In (sic) must make it quite clear at the outset that an application for the order of certiorari against a Government official’s decision on matters touching on administrative law, such as the instant case, is not per se civil proceedings as stipulated in the Government Proceedings Act. In so far as the applicant seeks to challenge a Government official on the question whether or not he acted illegally, or in excess of his powers in a matter which is quasi-judicial, as this one, then such a case cannot be dragged into the ambit of Government Proceedings Act (page 169).

Cases referred to: Hypolito Cassiano De Souza v. Tanga Town Council (1961) E.A. 377. Mapanda v. Manager, E.A.A. (170) HCD 24. R. v. Electricity Commissioner, ex parte London Electricity Joint Committee Co. (1920) Ltd. (1924) 1 KB 171. R. v. London County Council ex parte Entertainments Protection Association Ltd. (1931) 2 KB 215. R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All E.R. 717. R. v. Northumberland Tribunal (1951) 1 All E.R. 268. Racecourse Betting Control Board v. Secretary of State for Air (1944) 1 All ER 60. Re: Bukoba Gymkhana Club (1963) EA 478. Re: An Application by Hirji Transport Service (1961) EA 88.

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Re: An Application by Nagindas H. Desai (1954) TLR (R) 192. The Dar es Salaam Transport Co. Ltd. v. The Transport Licensing Authority (1959) E.A. 403. Walsal Overseers v. London & North Western Rly. (1878) 4 AC 30.

CHAPTER FIVE NATURAL JUSTICE, DISCRETION AND FAIRNESS Introduction One of the principles of natural justice is that a party must not be condemned unheard. It is expressed in Latin as Audi alteram partem which, simply translated, means “Hear the other side”. So fundamental is this principle that it has been held that if a tribunal violates this principle, its decision will be vitiated. It matters not that even if the principle had not been followed the same decision would have been arrived at. In the words of Lord Wright in the English case of General Medical Council v. Spackman (1943) AC 627 (page 644): If principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. That decision must be declared to be no decision. This statement has been referred to with approval by Tanzanian courts in many cases, such as in the case of DPP v. Tesha and Another and Sadiki Athumani v. The Republic (infra). The basis for this principle has been stated in many cases and in various ways. In the English case of John v. Rees (1976) Ch. 345, Meggary, J. said (page 402): As every one who has to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered change. The principle of the right to be heard had in fact been enunciated many years ago. One of such early cases was the English case of Board of Education v. Rice (1911) AC 179. 153

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The rules of natural justice also demand that there should be procedural fairness. The principle demands that a person accused of any misconduct must be appraised of the particulars of the allegation made against him or her so that he or she may be able to prepare his or her defence adequately. In the case of Simeon Manyaki v. I.F.M. (1984) TLR 304, for example, the Court stated that an administrative body exercising functions that impinge directly on legally recognized interests owes it as its duty to act judicially in accordance with the rules of natural justice, which basically means adoption of fair procedure. Another case in which the adoption of fair procedure was insisted upon was that of Kukutia Ole Pumbun and Another v. A.G. and Another (ante) in which the Court of Appeal of Tanzania declared section 6 of the Government Proceedings Act as amended by Act No. 40 of 1974 unconstitutional and struck it down on the ground, inter alia, that the Act did not provide for any fair, or any procedure at all for the exercise of the Minister’s power to withhold consent to sue the Government. Yet another case in which fair procedure featured was in the case of Donald Kilala v. Mwanza District Council (infra) in which the Court stated the principle of procedural fairness in the following simple terms: As it can be seen, there is nothing mysterious about natural justice. It is just fair play. These are the rules of the wise. The rule of fair play is not entirely of foreign origin. The Baganda have a saying .… “Do not decide the girl’s case until you have heard the boy’s.” Newbold, J.A. summed it up in the case of Cowasjee (Aden) v. Cowasjee (1963) EA 84 in which he said (page 88): In essence, in a case such as this one, the principles of natural justice require three things: first, that the tribunal should act in good faith; secondly, that a party who may be affected by the enquiry should know the nature and purport of the enquiry; and thirdly, that such a party should have the opportunity of presenting his point of view and of controverting statements which may be prejudicial to him. There is also the rule against bias. There is, of course, some difficulty in defining the term “bias”. In some cases it is said that the question should be whether there is real likelihood of bias. In others it is stated that the test should be whether there is or there was a reasonable apprehension of bias. The latter is often referred to as the objective test. This may be stated as “whether the reasonable man would, in the

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circumstances of the given case, have a reasonable fear that the applicant would not or did not have a fair and independent hearing of the issues in the case”. Bias may be pecuniary, personal interest, or hatred. Simply stated, a body deciding anything must act without bias. In the words of Viscount Haldane in the case of Local Government Board v. Arlidge (1915) AC 120 (page 132): My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give each of the parties the opportunity of adequately presenting the case made. The rules of natural justice also require that in making a decision a body or tribunal must not take into account extraneous considerations. That principle was stated or restated in the case of Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147. That case was referred to with approval in the case of Sanai Murumbe v. Muhere Chacha by the Tanzania Court of Appeal (among others) (infra). Not to be ignored, of course, is the rule against unreasonableness and the doctrine of legitimate expectations. The modern meaning of “unreasonableness” may be said to have been crystallized in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223, in which Lord Greene summed up the principle in the following terms (page 230): He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may truly be said, and often is said, to be acting ‘unreasonably’. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L.J. in Short v. Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another case it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into each other. This is now referred to as the Wednesbury unreasonableness. There is also the doctrine of legitimate expectations. This appears to have been born in the English case of Schmit v. Secretary of State for Home Affairs (1969) 2 Ch. 149. In that case two American students were refused extension of their licences to stay in Britain after their licences had expired and were not given the right to make representations to the Minister for Home Affairs. The Court held that the two

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students had no legitimate expectations to make representations but that they would have had such legitimate expectations if their licences had been revoked before expiry. This doctrine is relatively recent. In their book Administrative Law in Ireland (ante), Gerard Hogan and David Morgan describe the validity or usefulness of this doctrine in the following terms (page 860): Legitimate expectations are protected in the interests of safeguarding the citizen against haphazard and unfair changes in administrative policy and practice. The doctrine of legitimate expectations is part of the law of Tanzania. It has been invoked in many case, among them being the cases of Simeon Manyaki v. I.F.M. (infra) and Mohamed Jawad Mrouch v. The Minister for Home Affairs (infra). In the former case, the applicant had had his examination results nullified without his being given ample opportunity of being heard; and in the latter case, the applicant’s residence permit was canceled before its expiry. In both cases the applicants were successful: the High Court held that in the circumstances the applicants had legitimate expectations that they would be permitted to make representations before the relevant authorities made their decisions. One of the later English cases in which the doctrine was raised was is the case of Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374, usually referred to as the GCHQ case. In that case civil servants working at Government Communications Headquarters were deprived of the right to join trade unions by a prerogative instrument without the Union being consulted by the Minister. In the past there had been consultations before any licence was taken away. So there had been a legitimate expectation that there should have been consultation before the instrument was issued. The plea, in that case, however, was defeated on the ground that the matter concerned national security. It is in that case that Lord Diplock restated the grounds for judicial review using three broad classes of illegality, irrationality and, procedural irregularity.

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Agro Industries Ltd. v. Attorney General [Court of Appeal of Tanzania] [Makame, Ramadhani and Mfalila, JJ. A.] [1994] TLR 43 Administrative law – Notice to party to be affected by a decision – Meaning of section 2 of the Presidential Affairs Act – Meaning of “public interest” – Respect for legal property rights – Subjective test versus misleading information. Facts: Two farms known as Farm Nos. 6 and 7 in Msowero village, Kilosa District mortgaged belonged to one Akberali Abdulrasul Dharamsi who mortgaged them to a Bank for Shs. 45,000/-. Until 1983, the debt had remained unliquidated, and so the Bank sought a buyer. Two firms, that is, the appellant and a parastatal organization known as Darbrew Ltd. became interested. In February 1983, the appellant approached the Bank and offered to buy the Farms. The Regional Development Director of Morogoro Region gave his consent on 30 July 1983. On 6 October 1983, the appellant paid Shs. 98,880/- being land rents, and debts and interest thereon. The Deeds were issued to the applicant in 1985. Meanwhile, Darbrew applied to Msowero Village Government to buy those same Farms and the Village Government granted Darbrew use of the Farms on 1 November 1983. Darbrew immediately took possession of the Farms and went into cultivation. A dispute then arose as to the ownership of the Farms. On 13 June 1985 Darbrew petitioned the President. The President referred the matter to the Prime Minister on 6 August 1985. On 29 August 1985, the Prime Minister convened a meeting which resulted in a recommendation that the appellant’s rights of occupancy for the Farms be revoked and new ones be granted to Darbrew. The appellants filed a suit in the High Court challenging the revocation. It lost in the High Court and then appealed to the Court of Appeal. Held (allowing the appeal): (1)

We are left in no shade of doubt that the issue of revocation was made transparent to the appellant. In our opinion the whole purpose of notice is to afford a party an opportunity to put up a case. The appellant had that (page 47).

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{Section 2 of the Presidential Affairs Act} merely empowers a Minister to signify ‘the exercise of such power or the performance of such duty or function by the President’. The section does not authorize a Minister to exercise power or perform a duty or a function on behalf of the President. The Minster signed the revocation order merely signifying the exercise of that power by the President (page 49). So what do we understand by an action being in the public interest? We think it is so when looked at objectively with impartial eyes the section is primarily and not incidentally in the interest of the public which, depending upon the matter at issue, may even comprise the individual or individuals concerned, and it matters not whether the public is aware of it or not (pages 51–52). In the eyes of the law a trespasser is a trespasser be it a public enterprise or a private enterprise or an individual (page 53). We are satisfied that public interest, as we have stated to understand it, requires that legal property rights should be protected against trespassers. Except for these two farms in question, it is also in the interest of Darbrew themselves that legal property rights should be respected and protected (page 53). So the revocation which was done in favour of a trespasser and against a lawful owner never (sic) be in the public interest. So the revocation is null and void because S. 10 (2) of the Land Ordinance provides: Notwithstanding the provisions of ss(1) the President may revoke a right of occupancy if, in his opinion, it is in the public interest so to do.

(7)

This we are satisfied was not done in the public interest (page 53). Admittedly that subsection provides a subjective test that is: in the opinion of the President. In this case that opinion was based on the recommendations of PMO which did not describe Darbrew in its true colours that it was a trespasser. In fact the President was misled by ‘Darbrew tayari wanamiliki mashamba hayo …’. If the President was seized of the full and correct situation he would not, in our opinion, have used his name to protect a trespasser albeit a public enterprise (page 53).

Case referred to: Associated Provincial Picture Houses v. Wednesbury Corporation (1947) 2 All ER 680.

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George Samwell Kibwana v. Kassim Mohamed Khamis [High Court of Tanzania] [1974] HCD 55 [Mwakasendo, J.] Rent Tribunal – Principles of natural justice – Consequences of failure to follow – Fairness – Right to be heard. Facts: The main complaint against a decision of a Rent Tribunal was that the Tribunal breached the principles of natural justice in that it reached its decision without the appellant/landlord being heard. Held (allowing the appeal): (1)

(2)

It is, I think, a trite principle of law … that every tribunal must act in good faith and fairly listen to both sides before coming to its decision on any matter over which it is adjudicating. That is a duty lying upon one who decides anything. However the Tribunal is not a court of law and it is not bound to treat its adjudication as if it were a trial. It can obtain information in any way it thinks best, always giving a fair opportunity to those who are parties in the controversy for correcting and contradicting any relevant statement prejudicial to their view (page 252). While I feel loath to interfere with the decision reached by the Rent Tribunal in this case, I do not think in view of my finding that the Tribunal did not observe a cardinal principle of natural justice (page 252).

No cases referred to.

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The Registrar of Buildings v. Eliniiria Patton Mwasha [High Court of Tanzania] [1982] TLR 242 [Lugakingira, J.] Declaratory judgment, when in order – Right to be heard of those interested in the result – Not to be granted if purely academic, useless or embarrassing – Discretionary power of courts. Facts: The respondent was a tenant in the appellant’s premises. Those premises were later reallocated to another person, one Virjee on the ground that the respondent had sublet the premises without the appellant’s consent. The respondent then filed an application in the Resident Magistrate’s Court for a declaration that he was the lawful tenant of the appellant in the premises. He also sought an eviction order against Virjee. In the proceedings Virjee was not a party nor did he give evidence. Held (allowing the appeal): (1)

(2)

It does not require emphasis that a declaratory order is discretionary and, that being the position, the court should not be moved to exercise its discretion in the abstract. There should be some tangible benefit accruing to the appellant, and which the court can lawfully grant. In other words, the court should not be turned into a forum for what is essentially academic or vexatious (pages 245–246). … it has accordingly been held in England that a declaratory judgment should not be granted where it is useless or embarrassing …; that the declaration should confer some tangible benefit on the plaintiff …; that it is not available where the question raised is purely academic, … and that except in exceptional circumstances the discretion should not be exercised unless all parties interested are before the court. It was similarly held by the High Court of Kenya … that before a declaration can be granted there must be a real and not a theoretical question. The court was then considering O. 2, r 7 of the Civil Procedure (Revised) Rules, 1948 of that country which is again pari materia with our S. 7(2). I respectfully share the opinions expressed in those decisions and I adopt them in the construction and application of section 7 (2).

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But in my opinion the court should not grant a declaration the end result of which is merely to occasion embarrassment or to assuage the conscience of some party, that being contrary to the accepted principles upon which our courts exercise their jurisdictions. In this case, therefore, it was improper for the lower court to grant the declaration as it did and the application should have been dismissed for being theoretical (page 247). According to O. 1, r. 9 the court can only deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. In this case Saleem Virjee was not made a party. He did not even appear to testify. His rights and interests were considered and compromised in his absence. That was unlawful. As earlier pointed out, too, it is inequitable to grant a declaratory order unless all parties interested are before the court …. In this regard, therefore, the court below further acted contrary to the accepted principles upon which our courts exercise their jurisdictions. I think the eviction order was also an embarrassment to Virjee since he was required to vacate the suit premises for no purpose at all (page 247).

Cases referred to: A.G. v. Scott (1905) 2 KB 160 Cox v. Green (1966) 1 All ER 268. Guaranty Trust Co. of New York v. Hannay & Co. (1914–1915) All ER 24. Hansraj v. Official Liquidator (1933) A.P.C. 63. Howard v. Pickford Tool Co. Ltd (1951) I KB 417. London Passenger Transport Board v. Moscro (1942) AC 332. Maerkle v. British & Continental Fur Co. Ltd (1954) 3 All ER 50. Matalinga & Others v. A.G. (1972) E.A. 518. Morarji v. Morarji (1958) E.A. 277.

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Sadiki Athumani v. The Republic [High Court of Tanzania] [1986] TLR 235 [Samatta, J.] Natural justice – Right to be heard – That it would make no difference to the outcome is irrelevant. Facts: The appellant and another were convicted by a primary court of the offence of cattle theft and were each sentenced to five years imprisonment. Their appeals to the District Court were unsuccessful. In their respective petitions of appeal to the District Court, they did not indicate that they did not like to be present at the hearing. The District Court did not give them the opportunity to be heard. One of them, the appellant, appealed to the High Court. Held (allowing the appeal and ordering a rehearing by the district court): (1)

(2)

It is not clear from the record of the case why the learned magistrate who “heard” the appeals strayed into that error. One hopes that it was not because he thought that the appeals were unarguable. I express that hope because, as I understand the law, once an appeal is admitted to hearing, the appellant is, regardless of the chances of success of the said appeal, entitled to be heard against the judgment, decision or order he has appealed against and must be given the opportunity to exercise that right. Grievous injustice is done to a person who is not given the opportunity to be heard at the hearing of his appeal against a judgment which is prejudicial to his interests. The requirement that a party to proceedings must be given the opportunity to state his views is a fundamental principle of natural justice (page 236). The true legal position regarding the purport and implications of that right was, if I may respectfully say so, correctly stated by the Supreme Court of India in Tellis and Others v. Bombay Corporation and Others (1987) LRC (Const.) 351. Speaking through Chandrachund, C.J. the Court said (pages 376–377):

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The proposition that notice need not be given of a proposed action because there can possibly be no answer to it, is contrary to the wellrecognized understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice … (pages 376–377): (3)

The right of presence at the hearing of an appeal is not confined to physical presence; it includes the right to participate in the proceedings by, inter alia, making submissions on issues raised by the appeal with a view of assisting the court to reach a just and correct decision …. The right is a very important one and the denial of it is a grave error which vitiates the proceedings in the District Court (page 239).

Cases referred to: Goldberg v. Kell, 397 US 254, (1970) Joint Anti-Fascist Refugee Committee v. McGrath 341 US 123. National Textile Workers’ Union and Others v. Ramakrsihman and Others (1980–1984) LRC (Comm.) 729. S.L. Kapoor v. Jagmohan (1981) SCR 746. Tellis and Others v. Bombay Municipal Corporation and Others (1987) LRC (Const.) 351.

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Sanai Murumbe and Another v. Muhere Chacha [Court of Appeal of Tanzania] [Nyalali C. J., Makame and Ramadhni JJ. A.] [1990] TLR 54 Certiorari – Grounds upon which an order of certiorari will issue – Certiorari is not an appeal – Unreasonableness. Facts: Some 145 head of cattle belonging to the respondent and another person disappeared at Singisi Village in Serengeti District. The cattle were being moved from Mugumu to Mugela Village in Bunda District. No cattle were seized but inquiry was instituted in Serengeti District Court at Mugumu under section 15 of the Stock Theft Ordinance, Cap. 422. The inquiry was erroneously treated as Criminal Case No. 295/86. It was sought to order the Singisi Villagers to compensate the respondent. Being dissatisfied with the proof of the claim, the District Court dismissed it. As the decision was not appellable as provided by the Ordinance, the aggrieved party applied for and was granted an order of certiorari by the High Court. The High court quashed the inquiry and proceedings and went further and ordered the villagers to compensate the respondent. The appellants appealed to the Court of Appeal against that order. Held (upholding the order of certiorari and quashing the order of compensation): (1)

An order of certiorari is one issued by the High Court to quash the proceedings and the decision of a subordinate court or a tribunal or a public authority where, among others, there is no right of appeal. The High Court is entited to investigate the proceedings of a lower court or tribunal or a public authority on any of the following grounds. One, that the subordinate court or tribunal or public authority has taken into account matters which in (sic) ought not to have taken into account. Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account. Three, lack or excess of jurisdiction by the lower court. Four, that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it. Five, rules of natural justice have been violated. Six, illegality of procedure or decision (Associated Provincial Picture Houses v. Wednesbury

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(3)

(4)

(5)

(6)

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Corporation (1947) 2 All ER 680 and Council of Civil Service Unions v. Minister for Civil Service (1984) 3 WLR 935) (page 56). In Tanzania certiorari is provided for in Sections 17, 18 and 19 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Cap 360 (page 56). In the exercise of such investigation the High Court is not entertaining an appeal. If any of the above six grounds has been offended the proper action of the High Court is to quash the decision and the proceedings (page 56). [In making an order of compensation after quashing the decision] … though the learned judge had the best of intentions, that was contrary to existing law (page 57). Under the law, cattle had to be seized first before the inquiry. So here the law was offended and so an order of certiorari had to issue for the procedural defect. We sympathize with the respondent. But that is the inconvenience brought about by legislation which seek to oust the power of the High Court by denying appeals to it (page 57).

Cases referred to: Anisminic Ltd v. Foreign Compensation Commission (1969) 1 All ER 208; (1969) 2 AC 147. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680. Council of Civil Service Unions v. Minister for Civil Service (1984) 3 All ER 935. R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1952) 1 All ER 338.

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Donald Kilala v. Mwanza District Council [High Court of Tanzania] [1973] LRT 19 [El-Kindy, J.] Rules of natural justice – Procedure. Facts: The plaintiff, an employee of the defendant, was dismissed from employment without following laid down Regulations which included, inter alia, an investigation, framing of charges, a hearing and showing cause why a certain punishment should not be imposed. The applicable Regulation was regulation 40 of the Local Government Service Regulations. Held (finding for the plaintiff): (1)

(2)

In other words, the accused officer has to be informed of the nature of the charge or charges against him. Again it is not a matter of dispute that the plaintiff was not notified of the charge or charges against him. The duty of disclosure was not complied with as required by the regulation. As the regulations themselves stated … the duty to disclose the nature of the allegations is mandatory as it is the means by which an accused officer will come to know the nature of the charge or charges against him. This is not all. The regulations require that the accused officer “shall have full opportunity of exculpating himself ” and for this purpose he is to be given not less than fourteen days in which to prepare his Defence. The plaintiff was not given the full opportunity at all, …. This provision enacts the well established right — the right to be heard, which is one of the fundamental natural rights. It has often been held that a person who is going to be prejudiced by a certain decision ought, in normal circumstances, to be heard unless the procedure specifically rules it out (pages 75–76). As it can be seen, there is nothing mysterious about natural justice. It is just fair play. These are the rules of the wise. Although the Learned Lord talked about it in the context of “judicial functions” this does not mean that the other decision makers cannot profitably follow these principles of fair play, as these principles and rules are the rules of the wise. This rule of fair play is not

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entirely of foreign origin …. The Baganda have a saying … which means “do not decide the girl’s case until you have heard the boy’s (pages 77–78). The procedure which was followed, and which was illegal, was unsuitable and unsatisfactory …. On the first issue, therefore, I find that the dismissal of the plaintiff was unlawful as it did not follow the procedure laid down in regulation 40 … which provides for provision of charges and full opportunity of defence (page 78).

Cases referred to: Cowasjee Dinshaw (Aden) v. Cowasjee Dinshaw Employees Union (1963) E.A. 84. De Souza v. Tanga Town Council (1961) E.A. 377. Jashbai Ambalalapatel v. International Motor Mart Ltd. (1968) HCD. Patel v. Plateau Licensing Court (1954) 27 K.L.R. 147. Ridge v. Baldwin (1963) 2 All ER 66. Wiseman v. Borneman (1969) 3 All ER 275.

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D.P.P. v. S.I. Tesha and R. Tesha [Court of Appeal of Tanzania] [Kisanga, Ramadhani and Mfalila, JJ. A.] [1993] TLR 237 Principles of natural justice – Right to be heard – That same decision would have been arrived at is immaterial. Facts: In the course of a trial on a charge of manslaughter in the High Court, the Prosecution sought to produce extra-judicial statements made by the respondents, but the respondents’ advocate objected. So a trial within a trial was held. After P.W. 3 a Justice of the Peace, had given evidence and was cross-examined, the learned Judge went on to make a ruling rejecting both extra-judicial statements even though P.W 3,s evidence was not controverted by the respondents. The first respondent had also recorded a cautioned statement which was also objected to and rejected by the Court without the prosecutor being given the right to reply. The D.P.P. appealed to the Court of Appeal. Held (allowing the appeal): (1) (2)

It is a cardinal principle of natural justice that a party should not be condemned unheard (page 239). Lord Wright has this to say in General Medical Council v. Spackman (page 644): If principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. That decision must be declared to be no decision.

Cases referred to: Alois Kiula and Another v. Republic, Crim. Appeal No. 12 (1990) (unreported). De Souza v. Chairman and Members of Tanga Town Council (1961) E.A. 377. General Medical Council v. Spackman (1943) AC 627.

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Jimmy David Ngonya v. National Insurance Corporation Ltd. [High Court of Tanzania] [1994] TLR 28 [Bahati, J.] Natural justice – Right to be heard – General Manager present in absence of applicant – Certiorari – Mandamus. Facts: The applicant, who was an employee of the respondent, was dismissed by the Board of Directors on the basis of an audit report whose contents were never shown to the applicant to enable him to contradict them. When the Board of Directors met to discuss the applicant’s case, the General Manager, who had initiated the proceedings against the applicant and had commissioned the audit, was present but the applicant was absent. The applicant moved the High Court for the following orders: (1) an order of certiorari to quash the decision of the Board of Directors and (2) an order of mandamus to compel the Board of Directors to reinstate him. Held (granting the application): (1)

(2)

(3)

The questions to be answered in this application are mainly two. These are (1) whether the applicant was given the opportunity to present his case properly and (2) whether it was in order for the General Manager to attend the Board meeting in the absence of the applicant. With regard to the first question it is my opinion that the applicant was not given an opportunity to present his case in full before the Board because he was not shown the audit report for him to comment on. Since the audit report formed the basis of the decision of the Board of Directors, it was necessary to serve a copy of the report to the applicant for his comments. Then the comments of the applicant would be taken to the Board so that the Board would then look both at the audit report and the comments of the applicant (page 31). … the Board was again in breach of rules of natural justice since the Board deliberated on the case of the applicant in the presence of the General Manager who was in the position of the prosecutor (page 32). I therefore quash the Board’s decision of dismissing the applicant …. I command that the respondent reinstate the applicant forthwith and pay him

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all his salaries and other benefits because the applicant is and has always been the employee of the respondent (page 32). Cases referred to: Board of Education v. Rice (1911) AC 179. Cooper v. Wilson (1937) 2 KB 309. Local Government Board v. Arlidge (1915) AC 120 (q.v.). R. v. Barnsley Metropolitan Borough Council ex parte Hook (1976) 3 All ER 452; 1 W.L.R. 1052. The King v. Hendon Rural District Council, ex parte Chorley (1933) 2 KB 696.

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Simeon Manyaki v. I.F.M. [High Court of Tanzania] [1984] TLR 304 [Mapigano, J.] Natural justice – According to fair procedure – Interest and bias – Legitimate expectations – Right to information – Certiorari – Mandamus. Facts: The applicant was a third year student at the Institute of Finance Management. After the January 1984 final examinations, papers and model answers were found to have leaked. The examination results were then nullified and students were called upon to re-sit in April, 1984. In addition a committee was set up to probe the leakage and prepare a report. The applicant was one of those people who were interviewed by the committee. On 27 April 1984, the applicant was officially informed that he had passed the April 1984 examinations. Five days later, he was served with a letter terminating his studies at the Institute with immediate effect, nullifying his April 1984 examination results and barring him from attempting any I.F.M examinations in future without giving him an opportunity to know and answer the allegations made against him. He applied for (a) an order of certiorari to quash the decision of the executive committee and (b) an order of mandamus to compel the Council of the Institute to award him an Advanced Diploma in Accountancy. Held (granting the application): (1)

(2)

… it is trite to remark, that an administrative body exercising functions that impinge directly on legally recognized interests owes it as its duty to act judicially in accordance with the rules of natural justice which basically means adoption of fair procedure, which fundamentally demands freedom from interest and bias on the part of the administrative body and the right to a fair hearing for those who are immediately affected by its decision. And it is common ground that this court has discretion to intervene and award appropriate reliefs where rules of natural justice have not been observed (pages 310–311). I hold the view that the applicant, whose rights and legitimate expectations stood to be so affected by the inquiry had the right to have an adequate

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opportunity of knowing the case he had to meet, of answering it, of putting forward his own case, and of being fairly and impartially treated. In other words, he had the right, first, of being sufficiently appraised of the particulars of the prejudicial allegations that were to be made or had been made against him, so that he could effectively prepare his answer to and collect evidence necessary to rebut the case against him; secondly, subject to the need for withholding details in order to protect other overriding interests, and in my opinion there was none here, of being accorded sufficient opportunity of controverting or commenting on the materials that had been tendered or were to be tendered against him; thirdly, of presenting his own case; and fourthly, of being given a reasonable and fair deal (page 311). It matters for nothing that these were proceedings initiated by an Institute of higher learning. The weight of modern authorities is in favour of the view that disciplinary proceedings in higher educational institutions have to be conducted in conformity with natural justice, provided at least the penalty imposed or likely to be imposed is severe (page 311). With due respect, it is, in my considered opinion, not an exaggeration to say that the applicant was deprived of his right. It cannot be seriously denied that there is nothing in the record that shows that he was appraised of the particulars of the allegations that were to be made or had been made against him (page 311). What is more, it is plain, I think, there is nothing to show that the applicant was informed that he was one of the distribution agents of the leaked examinations .… Equally plain is that there is nothing that shows that the applicant had, during the interview, been made to understand that he was appearing before that committee to answer such a charge (pages 313–314). It may be successfully asserted that under its terms of reference the probe committee was not expected to conduct a disciplinary proceeding as such. It is plausibly arguable that it was only asked to investigate but not to give a binding decision. Even if that was the case, it was, in my view, still placed under obligation to observe the rules of natural justice, because it was investigating what was essentially a serious public scandal, and since it had in its possession the resolution of the Executive Committee, it was aware throughout that the investigation and its report were part of a process that could terminate into action adverse to the interests of some of the interviewees, as indeed they did (page 314).

Natural Justice, Discretion and Fairness

Cases referred to: Ceylon University v. Fernando (1960) 1 W.L.R. 223. Glynn v. Keele University (1971) 1 W.L.R. 487. R. v. Aston University Senate, ex. p. Roffey and Another (1969) 2 Q.B.D. 538. Re Pergamon Press Ltd. (1971) Ch. 388.

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Arcado Ntagazwa v. Buyogera Bunyambo [Court of Appeal] [1997] TLR 242 Reasons for adjournment – Apprehension of bias – Natural justice – Right to be heard. Facts: The respondent challenged the appellant’s election to Parliament on the ground that the appellant was a foreigner. On 10 April 1996 the case was fixed for hearing on 4 November 1996. Subsequently, for unknown reasons, the case was re-scheduled for 2 September, 9 September, and then 16 September 1996. Following the long adjournment of 10 April 1996 the appellant accepted an appointment as a member of a Parliamentary Probe Committee. When told of the new hearing dates, the appellant asked for a further adjournment as the new dates were unsuitable in view of the work of the Probe Committee. Other people in the Probe Committee had their cases adjourned. When it became evident that the trial judge would not grant the request and on apprehension that the judge was biased as there was information that he had been bribed, the appellant sought to have the case transferred to another judge, but in vain. The reasons for seeking adjournment had been that his advocate had problems and, on the advice of the Court given on 27 August 1996, the appellant engaged another advocate on 10 September 1996 but did not have time to give full instructions to the new advocate. On 16 September 1996, the new advocate asked for an adjournment pending full instructions and briefing. That plea was refused and so she gave notice of appeal against the ruling and withdrew from the proceedings. The judge heard the petitioner’s evidence, in the absence of the appellant and his advocate, at the end of which he allowed the petition on the ground that the petitioner was a foreigner. Held (allowing the appeal, nullifying the proceedings, and ordering trial de novo): (1)

The appellant was therefore justified in asking for an adjournment pending completion of his assignment with the Committee which he had taken up relying on the original hearing date of his case fixed by the court. Not only that, Mr. Simba and Dr. Lamwai who were also serving on the Committee, had their respective election petitions adjourned by the High Court pending

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(4)

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completion of the work of the Committee. Whether the decision to grant those adjournments was right or not, the appellant would have every reason to think that his request for adjournment would equally be granted. He cannot, therefore, be said to have acted unreasonably in seeking the adjournment (page 247). The second ground of appeal criticizes the judge for proceeding to hear the case notwithstanding the apprehension of bias expressed by the appellant. Again we find merit in this complaint. As stated earlier, the appellant managed to engage another advocate within fourteen days after being advised by the court to do so. But although the said advocate pleaded with the judge to grant an adjournment to enable her to obtain the necessary instructions and briefing from the appellant, the judge completely refused and proceeded to hear the case. The appellant was justified to apprehend that he would not get a fair deal from a judge who was prepared to urge the appellant’s advocate to proceed with the conduct of the case notwithstanding that the advocate had insufficient instructions and briefing from the appellant (page 247). Indeed the appellant’s apprehension or fear becomes even more apparent in the light of what transpired immediately after the judge had ruled against granting the adjournment. The appellant’s advocate immediately gave oral notice of her intention to appeal against the judge’s ruling with the request to be supplied with a copy of the ruling …. [The judge] did not stop to allow for the appeal process against his ruling to take effect …. Be that as it may, it is clear from the judge’s ruling that the intended appeal initiated by the notice in question never materialized (pages 247–248). It must be pointed out that the learned judge acted improperly here. Once the formal notice of intention to appeal was lodged in the Registry the trial judge was obliged to halt the proceedings at once and allow for the appeal process to take effect, or until that notice was withdrawn or was deemed to be withdrawn (page 248). The third ground of appeal criticizes the trial judge for violating the principles of natural justice. We have to say at once that this complaint is amply justified. In wrongly dismissing the applicant’s application for adjournment and proceeding to hear and determine the case after hearing only the petitioner’s case, the trial judge thereby condemned the appellant unheard. This was a serious matter, especially as the issue of the appellant’s election and citizenship being adjudicated upon were of great constitutional importance (page 248).

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The effect of these errors was, in our view, to render the proceedings a nullity starting from the day they were continued in the absence of the appellant or his counsel …. Accordingly it is ordered that the proceedings of the trial court subsequent to 16 September 1996 are hereby declared null and void, and … the petition be heard de novo before another judge (page 249).

No cases referred to.

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Mohamed Jawad Mrouch v. Minister for Home Affairs [High Court of Tanzania] [1996] TLR 142 [Makanja, J.] Immigration Act – Cancelation of Resident Permit – Duty to give reasons – Natural justice – Legitimate expectations – Exercise of discretion – Right to be heard. Facts: The applicant came to Tanzania in 1987 and subsequently established a business in Dar es Salaam. To regularize his stay, he applied for and was given residence permit class A on 14 September 1993. It was to expire on 12 September 1994. But on 2 December 1993, the Director of Immigration Services cancelled the permit. The cancelation was confirmed by the Minister for Home Affairs who then ordered that the applicant was prohibited from entering and staying in Tanzania. The reason given for the cancelation of the permit was given as “in the public interest”. He was ordered to leave the country not later than the day the letter was written. He was not given any opportunity to make representations to the Ministry of Home Affairs. The applicant then filed an application for an order of certiorari to issue quashing the order of the Director of Immigration Services as well as that of the Minister for Home Affairs, and an order of mandamus against the D.I.S. ordering her to restore the Residence Permit Class “A” to the applicant. Held (granting the application): (1) (2)

(3)

… The right to be heard is one of the principles of natural justice which all judicial and quasi-judicial bodies are required to observe (page 147). … a foreign alien has no right to enter this country except by leave; and if he is given leave to be in the country for a limited period, he has no right to overstay a single day … I agree, a foreign alien has no right to stay in this country without a permit. But once a permit has been given to him then he is entitled to stay until it expires. If it is revoked mid-term, then the immigration authorities have a duty to given (sic) him the reasons and an opportunity of being heard before the final decision is taken (page 148). … I need not overemphasize the point that a discretion has to be exercised fairly; it cannot be exercised fairly if the decision is arbitrary. In fact,

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discretionary powers cannot be exercised fairly without adhering to rules of natural justice, including the right to be heard. There is nothing in s. 15 (1) of the Immigration Act which ousts that right of being heard in an appropriate case of a person whose lawful story (sic) has been abruptly discontinued before the expiry of his residence permit (pages 148–149). … the applicant had a legitimate expectation of staying in the country until the expiry of his residence permit. That expectation could be extinguished justifiably if, and only if, he had first been given an opportunity to make representations to the authorities. It is after hearing him that the authorities could have justly decided, after considering these representations, that it was in the public interest to revoke the permit (page 149).

Cases referred to: R. v. Brixton Prison Governor, ex parte Soblem (1962) 3 All ER 641. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40. Schmidt v. Secretary of State for Home Affairs (1969) 1 All ER 904.

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Adecon Fisheries ( T ) Limited and Another v. Director of Fisheries and Others [High Court of Tanzania] [1996] TLR 352 [Kaji, J.] Administrative law – Certiorari – Mandamus – Ultra vires – Unreasonableness – Discretion, how exercised – Acting on inaccurate facts – Bias. Facts: The first applicant company had a certificate of approval issued by Investment Promotion Centre and was dealing in fishing and exportation of prawns. By G.N. No. 370 of 1994, it was ordered that fishing vessels had to comply with certain specifications relating to length, tonnage, and engine power. It was provided that the vessel’s main engine BHP should not exceed 500. To comply with those specifications, the applicants modified their vessel to 500 BHP, but its length marginally exceeded the prescribed maximum. Nevertheless, the Director of Fisheries refused to issue a fishing licence to the applicants on the ground that their vessel exceeded the specified specifications. The applicant’s appeal to the Minister for Tourism, Natural Resources, and Environment was rejected. Other vessels which exceeded the specifications were given licences. The applicants then lodged an application in the High Court seeking prerogative orders of certiorari and mandamus; that is, orders of certiorari to quash GN 370 of 1994 for being unreasonable and to quash the decision of the Director of Fisheries and the Minister refusing to issue a fishing licence, and orders of mandamus directing the Director of Fisheries and the Minister to issue a fishing licence and to guide their action in terms of the National Investment (Promotion and Protection) Act of 1990, directing the Director and the Minister to respect the certificate of approval; and directing the Director-General of the Investment Promotion Centre to respect the Certificate of Approval, and to protect the applicants from irregular procedure. Held (quashing the order but dismissing the other claims): (1)

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 the case (page 359).

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In deciding whether this GN is reasonable or unreasonable we must look at the provision under which it was made that is, ultra vires or intra vires. 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 (pages 359–360). With respect … I did not come across a provision saying that once the Investment Promotion Center 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 prerogative order of mandamus I hold that there are no sufficient grounds for the order prayed for. In view of this the applicants’ prayer for an order of mandamus directing the first and second respondents to respect the certificate of approval issued by the third respondent to the applicants is rejected (pages 360–361). If the third respondent had a duty of care to protect the applicants and he breached that duty of care as a result the applicants suffered a great financial loss, then the remedy can be found somewhere also (sic) 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 of Approval is rejected (page 361). When a law allows discretion then that discretion must be exercised with a judicial mind. It must be exercised on the basis of fairness and justice. It must not be exercised with a bias or discriminatory mind (page 362). The second respondent rejected the applicants’ appeal on the ground that their vessel exceeded the 500 BHP (see Annexure A5). This shows clearly that the first and second respondents in refusing the applicants’ application acted under a false belief that the appellants’ (sic) vessel exceeded the specified 500 BHP …. Since the first and second respondents refused the applicants’ application on a wrong belief that the applicants’ vessel exceeded all three specifications, their decision was not based on fairness and justice. It was not free from apprehension of bias and discrimination. It is hereby quashed (page 362). The court has been asked to issue an order of mandamus directing the first and second respondents to issue to the applicants with an appropriate fishing licence. But it must be borne in mind that the court is not supposed to use the powers of other organs with powers vested on them by 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 (pages 362–363).

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(8)

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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 (page 363).

No cases referred to.

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Re:

Bukoba Gymkhana Club

[H.M. High Court of Tanganyika] [1963] EA 478 [Reid, J.] Administrative tribunals – Discrimination – Discretion – Certiorari and mandamus – Duty to act judicially – Unreasonableness – Natural justice – Extraneous considerations – Appellate jurisdiction and review. Facts: A Liquor Licensing Board refused to renew the applicant’s liquor licence on the ground that its constitution was “still largely discriminatory”, in that a new member had to be proposed by a member and seconded by a member. The Club had had its liquor licence renewed for the previous thirty-four years; the Club was not present at the Board’s meeting which rejected the Club’s application; and no recent changes had been made to its rules. The law granting power to the Board stated that the Board could “in its discretion grant or refuse such application”. The Club then applied for orders of certiorari and mandamus. Held (granting the application): (1)

(2)

It is clear, however, that a club whose purposes are social and recreational has for one of its objects the creation and maintenance of a membership of persons who in a wide sense have common interests and whose company will be agreeable to one another. It is to my mind most natural and reasonable that such a club should be able to exercise some control and ensure that these legitimate objects are achieved, and the usual, to my mind perfectly proper, way of doing this, is by a procedure of proposing and seconding candidates and, possibly, a ballot …. In my view such discrimination is not discrimination in any ordinary sense of the word, is neither improper nor unfair and is not a proper ground for the exercise of a board’s discretion … (page 487). The Board is a body of persons having legal authority to determine questions affecting the rights of subjects and having a duty to act judicially. It rejected the licence application out of hand on the ground that “the constitution is still largely discriminatory” where no discrimination in any ordinary sense existed at all, and certainly not in any pejorative sense, which could give rise to the exercise of a discretion (page 489).

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No opportunity was given to the licence applicants to present their case or to meet the Board’s objections …. I do find that to reject the licence application for the reason, which it gave, and in the way that it did was clearly “unreasonable” in the sense of Associated Provincial Picture Houses case and the Board’s refusal of the licence application on these imaginary grounds was clearly a failure of natural justice. Further although the Board has no duty to hear a licence applicant against an intended refusal, yet, bearing in mind that the Club had held a licence for thirty-four years, and had neither made recent alteration in its rules, so far as is known, been notified of the Board’s intention to refuse a licence on the occasion, the out-of-hand refusal constituted another failure of natural justice (pages 489–490). I should be most loath and unhappy to find that the decisions of liquor licensing boards were (I imagine, uniquely) subject to no control or review by the courts, but I am happily satisfied that that is not the case. Of course the Board is an administrative body, but that does not preclude it from being as it is, a “body of persons having legal authority to determine questions affecting the rights of subjects ”as well and so one amenable to the writs (page 490). There is no question here of this Court being asked to exercise an appellate jurisdiction, or to vary the Board’s order; the applicants seek only that it should be set aside. The question whether the defects in the Board’s procedure or the form of the order are such as to enable a court to proceed by certiorari on those grounds does not affect the court’s power and duty to grant certiorari in proper cases where there has been a failure to exercise a discretion judicially or a failure of natural justice (page 492). The failure of the justice derives from and is created by the Board’s improper determination of the application. That determination gave rise, at the moment it was made, to a right to remedy by way of the writs, no matter for how short the Board’s order was in operation (page 493). The Board’s decision was not only influenced by, but was indeed based on the fact that the Club’s rules provided that candidates for membership must be proposed and seconded by members. That fact was a consideration extraneous to the proper scope of the exercise of the Board’s discretion (page 494).

Cases referred to: R. v. Woodhouse (1906) 2 KB 501. Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223.

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Peter Ng’omango v. Gerson Mwangwa and Attorney General [High Court of Tanzania] [1993] TLR 77 [Mwalusanya, J.] Government Proceedings Act – Minister’s fiat – Doctrine of proportionality – Reasonableness – Constitutionality of an Act of Parliament – Adequate safeguards in statutory provisions – Necessary to achieve a legitimate object – Basic human rights. Facts: The plaintiff, Peter Ng’omango, sued the first respondent in the High Court for damages for malicious prosecution. By way of third-party notice, the AttorneyGeneral was joined as the second defendant. The Attorney-General raised a preliminary objection to the effect that the suit was incompetent for want of consent of the Minister of Justice under section 6 of the Government Proceedings Act, 1967 as amended by Act No. 40 of 1974. The plaintiff countered by raising a constitutional question; that is, that section 6 of that Act was unconstitutional as it offended Article 13 (3), 13 (6), and 30 (3) of the Constitution of the United Republic of Tanzania and so it should be declared void. Held (declaring the section unconstitutional and so void): (1) (2)

(3)

It is my finding that the right of an individual for free access to the courts is recognised by our Constitution (page 80). The Tanzania Court of Appeal made two guidelines as to which law which infringes the basic human rights may be saved by the derogation clause. First, the law in question should make adequate safeguards against arbitrary decisions. Secondly, the said law should not offend the doctrine of proportionality or reasonableness – that is the law should not be too broadly drafted as to net the innocent and the offenders (page 83). {The Act} offends the doctrine of proportionality. This principle of proportionality requires that the means employed by the Government to implement matters in public interest should be no more than is reasonably necessary to achieve the legitimate aims. In other words the Government must show that the restriction imposed on a basic human right is required by a compelling social need and that it is so framed as not to limit the right in

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question more than is necessary or proportionate to achieve a legitimate objective (page 86). Now the Government Proceedings Act, 1967 offends the doctrine of proportionality because it is so broad such that it denies an effective and prompt remedy to all and sundry without distinction – even to those who have a clear and genuine grievance against the Government (page 87). The requirement of a Minister’s fiat militates against the principle of accountability and the often quoted principle of openness and transparency of the government (page 89). In the final analysis, I find that S. 6 of the Government Proceedings Act, 1967 as amended by Act No. 40 of 1974 is unconstitutional and so void. I so declare under S. 5 (1) of Act No. 16 of 1984 as well as Article 64 (5) of the Constitution (page 90).

Cases referred to: A.G. v. Lesinoi Ndeinai (1980) TLR 214. Clarke v. Karika (1985) LRC (Const.) 732. D.P.P. v. Ally Haji Ahmed Court of Appeal of Tanzania Criminal Appeal Nos. 44 and 45(1985) (unreported). DPP v. Daudi Pete (1993) TLR 22. Himid Mbaye v. The Brigade Commander (1984) TLR 294. Johnson v. Chief Constable of RUC (1987) Q.B. 129. Khalfan Abeid Hamad v. Director of Civil Aviation, High Court Zanzibar Civil Case No. 20 (1986) (unreported). Macauley v. Minister for Posts and Telegraphs (1966) I.R. 345. Maneka Gandhi v. Union of India (1978) 2 SCR 621. Ong Ah Chuan v. Public Prosecutor (1981) AC 648. Precunier v. Martinez (1974) 416 US 396. R. v. Secretary of /State for Home Affairs ex parte Bhajan Singh (1972) 2 All ER 1081. Rev. Christopher Mtikila v. The Editor, Business Times and Augustine L. Mrema (1993) TLR 60. Shabani Khamis v. Samson Goa, High Court Zanzibar, Civ. Case No. 18 (1885) (unreported). Shah v. A.G. (1970) 2 E.A. 523. Silver Case (1983) 5 EHRR 247. Sunday Times Case (1979) EHRR 245. The Queen v. Big M. Drug Mart Ltd. (1986) LRC (Const.) 332.

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Northern Tanzania Farmers Co-operative Society Ltd. v. W.H. Shellukindo (Merits) [High Court of Tanzania] [978] LRT 37. [Mwesiumo, J.] Rules of natural justice – Certiorari – Arbitrary use of statutory powers – Finality of Minister’s decision – High Court’s jurisdiction. Facts: Without fully ascertaining the facts, the respondent, who was the Assistant Registrar of Co-operative Societies, published a Government Notice in the Government Gazette giving notice that he intended to deregister the applicant upon publication of the Notice because “the applicant had ceased to function”. The applicant moved the High Court for an order of certiorari to quash the said Notice. Held (granting the application): (1)

(2)

There have been divergent versions of the meaning given to the term “Certiorari” but for our purposes it may suffice to state that “Certiorari” is one of the various means by which an ultra vires act performed in the course of abuse of powers may be challenged. It is, in other words, an order issued by the High Court by which decisions of inferior or junior tribunals or authorities are analysed and adjudicated as to their legality within the framework of the law of the land. The principle underlying this task is that all inferior courts or tribunals or authorities exercising judicial or quasi-judicial functions, subject of course to the laws of the country, have limited jurisdiction or powers and in the interests of the liberty of the subject and good administration they must be kept strictly within legal bounds. If the decision of an inferior tribunal or court does not pass the above test, it will be quashed (page 173). It may be relevant to point out here that in this country it is not only courts that exercise judicial or quasi-judicial functions. A lot of bodies perform such functions and, therefore, it is reasonable and desirable in the interest of justice and good administration , subject to the provisions of the law, that the duty to act judicially should follow automatically from the legal authority to determine questions affecting the rights of subjects. It should thus be realized

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that the mere fact that such a power is conferred involves the duty to act judicially (page 173). This Court feels that since the decision of the Assistant Registrar touched on the rights of the applicant Society to exist, it was imperative in law to give them a chance to be heard before resorting to such a drastic measure (page 182). In my view, whereas the order of cancellation, if any, was allowed to take place is appealable to the Minister and such appeal’s decision is final but the act of putting up a notice of intention of cancellation if the same is in breach of one of the rules of natural justice is referable to the High Court which has inherent powers to review the legality or otherwise of such general notice of intention of deregistering a society (page 1875). As subjects of this country, the members of this applicant society have every right to come to Court to seek their legal redress, even if by doing so, some members of the executive might harbour some bad feeling. This is a constitutional right which oftentimes has been pledged by this country (pages 186–187). In my seriously considered opinion the said General Notice … was filed not with sufficient grounds. To me, the whole exercise portrayed an arbitrary use of powers in utter disregard of well settled principles of natural justice (page190).

Case referred to: Ridge v. Baldwin (1964) AC.

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J. Velji Ltd v. THB Estates Co. Ltd. [High Court of Tanzania] [1983] TLR 391 [Maina, J.] Rent Restriction Act – Exemption of application – Validity of delegated legislation – Who makes orders? – Discrimination. Facts: The plaintiffs leased a godown belonging to the defendant at an agreed monthly rent of Shs. 13,860/-. The lease was for a term of three years. It was a further term of the agreement that it could be renewed for a further term provided that the plaintiffs gave a notice to that effect three months before the expiry of the first term. The plaintiffs failed to give the notice within the agreed period, and when they opted to renew the lease, the defendant refused. Instead the defendant offered the plaintiff a new lease on a rental of Shs. 65,000/- per month. By then the Ministry of Lands and Urban Development had issued G.N. 113 of 17 September 1982 by which the defendant was exempted from the provisions of the Rent Restriction Act as to the amount of rent that may be collected or charged. Another Government Notice was issued (G.N. 23 dated 28 February 1983) by the Minister for Justice exempting the defendant from all provisions of the Rent Restriction Act relating to restriction on amount of rent that may be charged or collected. This was duly approved by the National Assembly under section 1 (2) of the Act. The plaintiff challenged the orders as bad in law for being discriminatory, for lack of notice and the rent as excessive. Held (dismissing the suit but declaring G.N. 113 of 1982 invalid): (1)

(2)

Is Government Notice No. 113 of 17/11/1982 valid? … The Minister for Lands has no power under the law to give exemption to the landlord. Under section 2 (1) of the Rent Restriction Act, Cap 479 the term “Minister” is defined to mean the Minister responsible for legal affairs. The Minister for Lands had no powers to make the exemption under section 1(2) of the Rent Restriction Act (page 398). Mr. Kesaria submitted that the Order was discriminatory because the defendant company has other properties which were not subject to the exemption order. I do not think that the Minister had to include all the properties owned by the defendant company in the exemption order. There

Natural Justice, Discretion and Fairness

(3)

(4)

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are other properties owned by the defendant in other areas of the country which were also exempted (page 399). Mr. Kesaria … said that a notice should have been given so that persons who would be affected could make representations. Learned Counsel cited, for example, the publication by the Dar es Salaam City Council’s intention to make by-laws on rates known as development levy. That argument can, in my view, be disposed of by pointing out that under section 81 of the Local Government (Urban Authorities) Act …, there is specific mention that a local authority must publish notice on rates it intends to made …. There is, however no express provision in the Rent Restriction Act which requires the Minister to consult the people to be affected or to publish a notice before an exemption order is made under section 1 (2) (b) of the Act (page 400). Parliament has given powers to the Minister for Justice to exempt certain premises from the provisions the procedure (sic) to be followed. The order must be approved by the National Assembly. The Minister, in making the delegated legislation, did exactly what was required of him …. There can never be an implied right to be consulted in the making of delegated legislation. If Parliament intended that persons to be affected by the Minister’s order should be consulted first, it would have provided so in the Rent Restriction Act. The order was debated and approved by the National Assembly as required by the Act and that was in full compliance with the statutory requirements. I am satisfied that Government Notice No. 23 of 28/2/1983 was properly made and was not bad in law as pleaded (pages 401–402).

Cases referred to: Board of Education v. Rice (1911) I AC 179. Century Automobiles Ltd v. Hutchings Biemer Ltd. (1965) E.A. 304. R. v. Electricity Commissioners (1924) IKB 171.

CHAPTER SIX THE RIGHT TO LEGAL REPRESENTATION Introduction The right to be represented by counsel has been recognized for many years in most jurisdictions. More than seventy years ago, in the famous American case of Powell v. Alabama (1932) 287 US 45, the Supreme Court of the United States of America justified this right in the following terms: Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence .… He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of Counsel at every step in the proceedings against him, without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of a man of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect? On the same point, in the case of Pett v. Greyhound Racing Association Ltd. (1969) 1 Q.B. 125, Lord Denning, M.R. (as he then was) said (page 132): It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his favour or the weakness in the other side. He cannot examine or cross-examine witnesses. He added: If justice is to be done, {everyone} ought to have the help of someone to speak for him. And who better than a lawyer who is trained for the task? I should have thought, therefore, that when a man’s reputation or livelihood 191

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is at stake he not only has a right to speak by his own mouth; he also has a right to speak by counselor or solicitor. Those are not lone voices on this topic. In Marjoribanks’ Famous Trials of Marshall, as quoted by Dr. Fauz Twaib in his book The Legal Profession in Tanzania, Sir Edward Marshall Hall is quoted to have said: Now it is difficult for any man, however wise or eloquent to speak for himself, when fortune, reputation, happiness, life itself, are in jeopardy …. Hence has arisen the honourable and necessary profession of the advocate; it is indeed a high and responsible calling; for into his keeping are entrusted the dearest interests of other men. In The Legal Profession in Tanzania (op. cit.), Dr. Twaib states (pages 79–80): It is now an accepted principle of fair justice that every person has the right to be represented by counsel whenever he needs such representation. In certain circumstances, especially where one is charged with a serious offence likely to result in a capital punishment or a long term of imprisonment, this right is absolute, and an accused person can demand to be provided with an advocate at the expense of the State. In Tanzania, the right to legal representation is statutorily recognized. For example, section 310 of the Criminal Procedure Act, Cap. 20 RE 2002 provides, in part as follows: Any person accused before any criminal court, other than a primary court, may of right be defended by an advocate of the High Court … There is also the Legal Aid (Criminal Proceedings) Act, Cap. 21, RE 2002, which provides that an indigent person may be given legal aid at the expense of the State in certain circumstances, that is, where the certifying authority has so certified. The “certifying authority” means the Chief Justice or Judge In-charge. Rule 8 of The Court Fees Rules does not give legal assistance to people in need, but they permits indigent persons to be exempted from paying court fees. It can also be argued with some justification that articles 13 and 15 of the Constitution of the United Republic of Tanzania recognize the right to legal representation. It was so held in the case of Khassim Manywele v. R. (High Court of Tanzania at Dodoma, Criminal Appeal No. 39 of 1990, unreported). In that case the

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facts, in brief, were that the appellant was convicted by Manyoni District Court of the offence of robbery with violence and was sentenced to 30 years imprisonment with 12 strokes of corporal punishment. At the trial, he was not represented by counsel. On appeal to the High Court, the High Court assigned an advocate to represent him. The first ground of appeal filed by the advocate in his amended memorandum of appeal was that the trial court erred in proceeding with the case when the accused was undefended notwithstanding the fact that he was facing a very serious charge. In allowing the appeal and ordering retrial, the High Court held that an indigent accused person has the right to free legal aid paid for by the State in all cases whether capital or non-capital offences; and that the right to legal representation was a human right recognized by articles 13 (6) (a) and 15 (2) of the Constitution of the United Republic of Tanzania. In that case many of the cases in this chapter were referred to. On the basis of the foregoing, it can be said that the courts also fully recognize the right to legal representation which, as was stated in the case of D.P.P. v. Arbogast Rugaimukamu (infra), is not only in the interest of the accused persons but in public interest as well. There are cases where failure to grant legal representation has been held to be not necessarily fatal to a conviction. It was so held by the Court of Appeal for Eastern Africa in the case of Mohamed s/o Salim v. R. (infra). In that case the appellant was denied legal representation on the ground that the committing court was of the view that the appellant was not an indigent person as he had ten head of cattle. On appeal, while clearly stating that it was undesirable in the interests of justice that a person on trial on a capital charge should have no benefit of legal aid, the Court held that though in some cases it would be obliged to order a retrial, it was not doing so in that case because the case was an exceptionally clear one. It would seem that the right to legal representation and the high costs of legal services is not a concern confined to legal circles only. It is a question of concern in other areas also. In his speech at the inauguration of The Silver Jubilee Celebrations of the Court of Appeal of Tanzania in September 2004, retired President Benjamin William Mkapa lamented: The best legal Counsel is expensive and is available only to those who can afford. He added: But a line has to be drawn, a threshold determined, below which no citizen should find himself or herself unable to access justice in a free and democratic country. Legal discrimination based on economic status is not right ….

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D.P.P. v. Arbogast Rugaimukamu [High Court of Tanzania] [1982] TLR 1 [Rubama, J.] Legal representation as legal right – Consequences of failure to accord legal representation – Public interest. Facts: The case against the respondent was filed on 14 May 1979 and was first mentioned on 28 June 1979. The case came for hearing before learned trial magistrate Mutaki for hearing on 28 June 1979 but the Magistrate disqualified himself. On 30 July 1979, the case came before another Magistrate for hearing. But apparently there was a mix-up on the summoning of the prosecution witnesses; they had been told to appear in court on 31 July 1979, that is, a day later. The respondent also stated that he had engaged a Mwanza based advocate and requested that the case be adjourned to allow the appearance of his advocate. The trial magistrate, however, ruled that the case be beard the next day. Held (allowing the appeal): (1)

(2)

(3)

The appellant submits that this refusal was not fair. I accept this submission and add that in the circumstances of this case — the speed at which it was being conducted and the early opportunity the respondent had applied for the adjournment to allow a defence counsel to appear – the rejection of the application was arbitrary and unreasonable. Legal representation for an accused person is a right which is provided for in section 190 of the Criminal Procedure Code (page 140). An accused person should not be deprived of his right to legal representation unless very cogent and exceptional reasons exist which warrant the taking of such a drastic measure. It is not merely in the interest of accused persons but it is also in the public interest that legal representation is recognized as a right (page 141). I have found it worthwhile to deal at length with the issue of legal representation notwithstanding this clear position for two reasons; firstly if the prosecutor had turned up on 31 July 1999, and the trial had proceeded, on conviction of the respondent, that conviction would on appeal likely not have

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been allowed to stand. The appellate court would most likely have found that the respondent had been refused his legal right of legal representation without sufficient cause (page 141). Cases referred to: Alimasi Kalumbeta v. R. Galos Hired and Another v. R. (1944) (1947) 2 All ER 50. Jaffarali A. Haji v. Rex 1 TLR (R) 299. Yusuf Gitta v. R. (1959) E.A. 211.

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Alimasi Kalumbeta v. Republic [High Court of Tanzania] [1982] TLR 329 [Samatta, J.] Administrative law – Natural justice – Right to representation by legal counsel – Result of denial thereof. Facts: Appellant and his co-accused pleaded not guilty to a charge of being in possession of government trophy unlawfully in Sumbawanga District Court. After several mentions the case, which was being tried by a panel of three magistrates one of whom was stationed at Mpanda, was fixed for another mention. On this material date, all witnesses as well as all the three magistrates were present, but the defence counsel was absent. The accused persons prayed for more time to contact their counsel but the court rejected their request on the grounds that all witnesses had turned up and one of the magistrates had traveled from far away. They appealed to the High Court. Held (allowing the appeal): (1)

(2)

(3)

Legal representation for an accused is a right which is almost universally recognized. In some jurisdictions the right is a constitutional right. In Tanzania the right is provided for in S. 190 of the Criminal Procedure Code (page 330). The expression “mention” does not, of course, appear anywhere in the Criminal Procedure Code and in the Primary Courts Criminal Procedure Code, but even those persons who have only bowing acquaintance with the procedure followed by and the practice prevailing in the courts of this country would entertain no doubt that the expression does not mean or include hearing of a case (page 331). I wish to guard myself against saying that a case cannot be heard on a day it comes up for mention. If it is not likely to embarrass or prejudice the fair trial of the case and provided that the interests of justice cry for the courts to hear the case on that day, I can see no reason why the Court should not be at liberty to do so (pages 331–332).

The Right to Legal Representation

(4)

(5)

(6)

197

… the learned magistrates’ decision to commence the trial on May 17 resulted in the appellant being deprived of his right of being defended by an advocate. That right is so jealously guarded by the law that if an accused is deprived of it through no fault of his advocate and he is in the end, convicted, that conviction cannot be allowed to stand on appeal. It must be quashed (page 334). An accused person should not be deprived of his right of legal representation unless very cogent and exceptional reasons exist which warrant the taking of such a drastic measure. It is not merely in the interest of accused persons but it is also in the public interest that legal representation is recognised as a right. The importance which lawyers attach to justice being seen to be done cannot be sacrificed on the alter of speed. In the present case the fact one of the magistrates had travelled all the way from Mpanda was not a sufficient reason for the court to hear the case on a mention day and deprive the appellant of his substantive right to be defended by counsel. I totally reject the idea that when they are at odds the interests of justice must be subordinated to the state’s financial interests. If necessary the latter must suffer so that justice must triumph (page 332). It is an elementary principle of justice … that an accused person should be given every reasonable facility for defending himself against a criminal charge (page 332).

Cases referred to: Galos v. Hirad and Another (1944) 2 All ER 50. Jafferali Abdallah Haji v. Rex 1 TLR (R) 299. Pett v. Greyhound Racing Association Ltd. (1969) 1 Q.B. 125. Yusufu Gita v. R. (1959) E.A. 211.

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Mohamed s/o Salim v. R. [Court of Appeal for Eastern Africa] [Sir Kenneth, P., Briggs, V-P., and Forbes, J. A.] [1958] E.A. 202 Legal aid – Certifying authority – Unrepresented at a trial for murder – Consequences – Discretion. Facts: The appellant was charged with the offence of murder. The committing magistrate had noted the following “certificate” on the record of the committal proceedings: “I have examined accused as to his means and I certify that in my opinion, as he owns ten head of cattle he should not be accorded free legal aid”. Under the provisions of section 3 of the Poor Prisoners Defence Ordinance, it was provided that where it appears to the certifying authority, that is, the Registrar or Judge of the High Court, that in the interests of justice a prisoner should have legal aid by reason of having insufficient means, such prisoner ought to be given free legal aid. In this case it appeared that neither the Registrar nor a Judge of the High Court had considered the question whether the appellant should be provided with free legal aid. In the end the appellant was not represented at his trial. Held (dismissing the appeal but stressing desirability of legal aid in capital offences): (1)

(2)

We would comment upon this, first, that it is by no means clear that the acting deputy registrar in fact exercised (as he should have done) his own independent judgment in the matter upon the facts stated by the committing magistrate, secondly, that it seems difficult to justify the refusal of legal aid merely on the ground that the appellant “owns ten head of cattle” (page 203). It is clearly desirable in the interests of justice that a person on trial on a capital charge should have the benefit of legal aid in the preparation and conduct of his defence. And we are of opinion that in such a case the “certifying authority” i.e. the registrar or a judge should give the matter anxious consideration before deciding to refuse a certificate for legal aid on the ground of sufficiency of means, that a reasonably liberal interpretation

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(3)

(4)

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ought to be placed on the section, and that in case of doubt the discretion should be exercised in the prisoner’s favour (page 203). It so happened that the instant case was an exceptionally clear one, free from difficulty. But it might well happen that this Court would feel obliged to order a retrial if it were of opinion that a person accused of a capital charge had been prejudiced by refusal of legal aid, and the court was not satisfied that the question of the provision of legal aid had been properly considered by the “certifying authority” (pages 203–204). While in capital cases it is normally to be presumed that the interests of justice require that the accused should be legally represented, there is no such presumption in non-capital cases. In non-capital cases, it is a matter of consideration on the facts of each case whether legal aid is desirable in the interests of justice (page 204).

No cases referred to.

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Mugema and Another v. Republic [High Court of Tanzania] [1967] E.A. 676 [Platt, J.] Legal representation – Reason for denial – Legal issues and complex facts. Facts: In the course of trial of the appellant and others, during his defence, the appellant had stated that he had an advocate, G. Singh, whom he had expected to be summoned as he did not know the procedure and that he had put in a letter to the advocate. The trial magistrate took the view that as the appellant had had the opportunity of hearing the witnesses for the prosecution, and as he had not informed the court before the commencement of the trial that he wished to be represented, it was “fit and proper and just and fair” for the accused to be compelled to give his defence. The appellant and his co-accused were convicted. On appeal, Mr. Singh for the appellant confirmed from the bar that he had written the trial court that he was representing appellant but had received no information from the court. Held (allowing the appeal): (1)

(2)

In [Jafferali Abullah Haji v. R.] it was observed that it was an elementary principle of justice that an accused person should be given every reasonable facility for defending himself against a criminal charge. Strong emphasis, it was said, had to be placed on the word “reasonable”, and where an accused had delayed unreasonably the circumstances might warrant a refusal of his application for an adjournment in order that he should be represented. However, in Jafferali’s case the learned judge came to the conclusion that the appellant had had very little time within which to seek that aid of counsel and in the circumstances he thought that it could not be said that the application was unreasonable. He also considered that matters of law were involved which the appellant could not have adequately dealt with by himself, and further that the facts were not so clear that the accused would not benefit by professional conduct of the case …. With respect, I adopt the reasoning and approach illustrated by Jafferali’s case (pages 677–678). Reviewing the situation therefore from the advantageous position of having all the facts before me, it is clear that the appellant had taken proper steps to

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engage an advocate but that the advocate did not appear through no fault of the appellant. As in Jafferali’s case … the evidence was conflicting and there may well have been an important point of law. Accordingly, … there is no doubt that the appellant should have been allowed an adjournment for counsel to be present and to represent him and that the denial of his right to be represented may well have occasioned a failure of justice … (page 678). Cases referred to: Jafferali Abdulla Haji v. R. (1947) I TLR (R) 229. R. v. Mary Kingston (1948) 32 Cr. App. Rep. 183.

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Jafferali Abdalla Haji v. Rex [H.M. High Court of Tanganyika] (1947) 1 TLR (R) 299 [Wilson J.] Legal representation – Request to have legal representation – No unreasonable delay – Legal issues – Interests of justice. Facts: The appellant and others were charged with the offence of stealing. Theft occurred on 5 February. They first appeared before the trial court on 21 February. The trial proceeded up to the stage when the prosecution had closed its case and the first accused had given his defence but wanted to call witnesses. The case was adjourned to 22 February (a Saturday), but on that day no witness was present. It was adjourned to Monday, the 24 February. On that date an advocate appearing for the appellant asked for two days adjournment so as to peruse the evidence given that far. The trial court refused to grant the application and the advocate and his colleague for 1st accused withdrew from the case. The appellant and his co-accused were convicted. Held (allowing appeal but ordering trial to proceed from when adjournment was refused): (1)

(2)

It is an elementary principle of justice that an accused person should be given every reasonable facility for defending himself against a criminal charge. Strong emphasis must, or course, be placed on the word “reasonable”. An accused person is not entitled to play ducks and drakes with the course of justice. The criminal courts ought to, and normally do, sit de die in diem for the dispatch of the cases brought before them and adjournments should be reduced to a minimum consistent with the doing of justice to all parties concerned. The reasonableness of a request for an adjournment, whether for the purpose of engaging an advocate or for any other reason, must of course depend in every instance on the circumstances of the particular case (page 300). I am not to be taken as deprecating the speed with which the trial of these persons was begun after their arrest; far from it. I regard speed in court proceedings, provided it is not prejudicial to the doing of justice, as a most desirable element. But in this case there is much to be said for the view advanced by counsel for the appellant that in seeking (and obtaining) the

The Right to Legal Representation

(3)

(4)

203

services of an advocate within two days of his arrest the appellant was not guilty of undue delay (page 301). I am of opinion that the lower court should have acceded to the application for a short adjournment, even if only for one day. Without entering deeply into the merits of the case one may say that there are at least two points of law involved in the defence with which the appellant himself could not possibly be expected to deal adequately. And the facts of the case are not so clear and uninvolved as not to repay professional legal examination in the interests of the defence (page 301). The aim of every court worthy of the name is to do justice impartially, and the giving of every reasonable facility to those appearing in criminal court, whether for the prosecution or for the defence, is essential to the achievement of that object. I do not think that any desirable end of justice would have been defeated or would have suffered detriment in any way by the granting of the short adjournment which was asked for in this instance and in my opinion in all the circumstances of this case it should have been granted (page 301).

No cases referred to.

CASES ON SPECIFIC LEGAL THEMES

Abuse of Power Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 233. Congreve v. Home Office (1976) Q.B. 629. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. James F. Gwagilo v. A.G. (1994) TLR 73. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Northern Tanzania Farmers v. W.H. Shellukindo (1978) LRT 37. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694; (1968) AC 997. Pyx Granite Co. Ltd v. Ministry of Housing and Local Government (1960) AC 260. R. v. Liverpool Corporation ex parte Liverpool Taxi Operators’ Association (1972) 2 Q.B. 299; (1975) 1 W.L.R. 701. R .v. Paddington Valuation Officer ex parte Peachey (1966) 1 Q.B. 380. Rev. Mtikila v. A.G. (1995) TLR 31. Short v. Poole Corporation (1926) Ch. 66. Smith v. East Elloe Rural District Council (1956) AC 736. Thomas Mjengi v. Republic (1992) TLR 157.

Access to Courts A.G. v. Lohay Akonaay and Another (1995) TLR 80. D.P.P. v. Daudi Pete (1993) TLR 22. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. O’Reilly v. Mackman (1983) 2 AC 237. UTTU (On Behalf of Magasha) v. A.G. and Another (1997) TLR 30. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Rev. Mtikila v. A.G. (1995) TLR 31.

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205

Advocate’s Suspension The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported).

Alternative Remedy In Re: Ratlal Patel, 2 TLR (R) 227. John M. Byyombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Moris Onyango v. Customs, Mbeya (1980) TLR 150. Obadia Salehe v. DOWICO (1990) TLR 113. Pyx Granite Co. Ltd. v. Minister of Housing and Local Government (1960) AC 260. R. v. Chief Immigration Officer ex parte Kharrazi (1980) W.L.R. 1396. R. v. Paddington Valuation Officer ex parte Peachy (19966) 1 Q.B. 380. Re: A.G.’s Application (1958) E.A. 482. Re: An Application by Fazal Kassam (Mills) Ltd. (1960) E.A. 1002. Ridge v. Baldwin (1963) 2 All ER 66. Shah Vershi Devshi v. The Transport Licensing Board (1971) E.A. 289. The Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Tropex Ltd. and Another v. Commissioner of Income Tax and Others (1996) TLR 390.

Appeal Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 W.L.R. 163; (1969) 2 AC 147. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223. Harun Nchama and Another v. Republic (1982) TLR 274. Healey v. Minister of Health (1954) 3 All ER 449. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Metropolitan Properties Ltd. v. Lannon (1968) 1 W.L.R. 815. Northern Tanzania Farmers Co-operative v. W.H. Shellukindo (1978) LRT 36, 37. OTTU (On Behalf of Magasha) v. A.G. and Another (1997) TLR 30. Pyx Granite Co. Ltd. v. Minister of Housing and Local Government (1960) AC 261. R v Northumberland Appeal Tribunal ex parte Shaw (1952) 1 KB 338. Re: Bukoba Gymkhana Club (1963) E.A. 478. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54.

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Audi Alteram partem Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. Board of Education v. Rice (1911) AC 179. Cowasjee v. Cowasjee (1963) E.A. 84. Dawson v. Irish Brokers Association (unreported, quoted by Hogan and Morgan in Administrative Law in Ireland, 3rd Edition, pages 621–613). De Souza v. Tanga Town Council (1961) E.A. 377. Donald Kilala v. Mwanza District Council (1973) LRT 19. General Medical Council v. Spackman (1943) AC 627. George Kibwana v. Kassim M. Khamis (1974) LRT 55. In Re: Pergamon Press Ltd. (1971) Ch. 388. Jama Yusuph v. Minister of Home Affairs (1990) TLR 80. James Gwagilo v. A.G. (1994) TLR 73. John v. Rees (1980) Ch. 345. Local Government Bard v. Arlidge (1915) AC 120. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLT 142. Brixton Prison (Governor) ex parte Soblem (1962) 3 All ER 641. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. Re: Bukoba Gymkhana Club (1963) E.A. 478. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40. Saidi J.M. Shekimweri v. A.G. (1997) TLR 3. Sheikh Abdulla v. Reginal Police Commander and Others (1985) TLR 1. Simeon Manyaki v. I.F.M. (1984) TLR 304. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). Wiseman v. Borneman (1971) AC 297.

Arbitrary James F. Gwagilo v. A.G. (1994) TLR 73. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159. Northern Tanzania Farmers Co-operative v. W.H. Shellukindo (1978) LRT 37. Tellis and Others v. Bombay Corporation and Others (1987) LRC (Const.) 351. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported).

Cases on Specific Legal Themes

207

Bad Faith Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 W.L.R. 163; (1969) 2 AC 147. Associated Provincial Picture Houses v. Wednsbury Corporation (1947) 2 All ER 680. R. v. Paddington Valuation Officer ex parte Peachy (1965) 2 All ER 836; (1966) 1 Q.B. 380. Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1.

Basic Rights D.P.P. v. Daudi Pete (1993) TLR 22. James Gwagilo v. A.G. (1994) TLR 73. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (Unreported). V.G. Chavda v. Director of Immigration Services (1995) TLR 125.

Bias Adecon Fisheries v. Director of fisheries and Others (1996) TLR 352. Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175. De Souza v. Tanga Town Council (1961) E.A. 377. James Gwagilo v. A.G. (1994) TLR 73. Jimmy David Ngonya v. N.I.C. (1994) TLR 28. Local Government Board v. Arlidge (1915) AC 120. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Metropolitan Properties v. Lannon (1969) 1 Q.B. 577. Moris Sasawata v. Malieko (1980) TLR 158. Ndegwa v. Nairobi Liquor Licensing Court (1957) E.A. 709. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. Simeon Manyaki v. I.F.M. (1984) TLR 304. Tanzania Air Services Ltd. v. Minister for Labour and Others (1996) TLR 217.

Certiorari Adecon Fisheries v. Director of Fisheries and Others (1996) TLR 352. Alh. A.J. Mungula v. BAKWATA (1997) TLR 50. Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663.

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Board of Education v. Rice (191) AC 179. Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. Dar es Salaam MotorTtransport v. Transport Licensing Authority (1959) E.A. 403. De Souza v. Tanga Town Council (1961) E.A. 377. Hans W. Golcher v. Morogoro Canvas Mill (1987) TLR 78. Healey v. Minister of Health (1954) 3 All ER 449. Jama Yusuph v. Minster for Home Affairs (1990) TLR 80. Jimmy David Ngonya v. N.I.C (1994) TLR 28. John Byombalirwa v. Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Mapanda v. E.A.A. (1970) HCD 24. Mugema and Another v. Republic (1967) E.A. 676. Ndegwa v. Liquor Lincensing Court (1957) E.A. 309. Ndesamburo v. A.G. (1997) TLR 137. Northern Tanzania Farmers Co-operative Society v. W.H. Shellukindo (1978) LRT 36, 37. Obadia Salehe v. DOWICO (1990) TLR 113. Patman Garments Ltd. v. Tanzania Manufacturers Ltd. (1981) TLR 303. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 Q.B. 574. R. v. Metropolitan Police Commissioner ex parte Parker (1954) All ER 118; (1953) 1 W.L.R. 834. R. v. Northumberland Appeal Tribunal ex parte Shaw (1952) 1 All ER 122; (1952) 1 KB 338. R. v. Paddington Valuation Officer ex parte Peachey (1965) 2 All ER 836; (1966) 1 Q.B. 380. Racecourse Betting Control Board v. Secretary for Air (1944) 1 All ER 60; (1944) Ch. 114. Re: An Application, Nagindas Desai 2 TLR (R) 192. Re: Application by Fazal Kassam (Mills) Ltd. (1960) E.A. 1002. Re: Application by Hirji Transport Service (1961) E.A. 88. Re: Bukoba Gymkhana Club (1963) E.A. 478. Re: Marle’s Application (1958) E.A. 153. Rev. Mtikila v. A.G. (1995) TLR 31. Saidi J.M. Shekimweri v. A.G. (1997) TLR 3. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Shah Vershi Devshi v. The Transport Licensing Board (1971) E.A. 289. Simeon Manyaki v. I.F.M. (1984) TLR 304. Stephen Kiberenge and Others v. Republic (1986) TLR 6. Tanzania Air Services Ltd. v. Minister for Labour (1996) TLR 217. Tanzania Dairies v. Chairman, Arusha Conciliation Board (1994) TLR 33. The Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84.

Cases on Specific Legal Themes

209

The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Tropex Ltd. and Another v. Commissioner of Income Tax (96) TLR 390.

Civil Servant James Gwagilo v. A.G. (1994) TLR 73. Saidi J.M. Shekimweri v. A.G. (1997) TLR 3.

Common Law Lujuna Ballonzi, Senior v. Registered Trustees of CCM. (1996) TLR 203. Mwalimu Paul Mhozya v. A.G. (1996) 1 TLR 130. Saidi J.M. Shekimweri v. A.G. (1997) TLR 3.

Constitutional Principles A.G. v. Aman Walid Kabourou (1996) TLR 156. A.G. v. Lesinoi Ndeanae (1980) TLR 214. A.G. v. Lohay Akoonay and Another (1995) TLR 80. A.G. v. W.K. Butambala (1993) TLR 46. Ahmed J. Dhirani v. Republic (1979) LRT 11. An application by Paul Massawe (1979) LRT 18. Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. D.P.P. v. Daudi Pete (1993) TLR 159. Hamisi Masisi and Others v. Republic (1985) TLR 24. Himid Mbaye v. Brigade Commander (1984) TLR 294. James Gwagilo v. A.G. (1994) TLR 73. Julius Ndyanabo v. A.G. Court of Appeal Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. Mwalimu Paul Mhozya v. A.G. (1996) 1 TLR 130. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 36. OTTU (On Behalf of Magasha) v. A.G. and Another (1997) TLR 30. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Rev. Mtikila v. A.G. (1995) TLR 80. Saidi Shekimweri v. A.G. (1997) TLR 3. Shaban Khamis Mloo and Others v. Superintendent of Prisons, Zanzibar (1991) TLR 21. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). Thomas Mjengi and Another v. A.G. (1992) TLR 130.

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V.G. Chavda v. Director of Immigration (1995) TLR 125.

Declaratory Judgments/Orders Congreve v. Home Office (1976) Q.B. 629. Matalinga and Others v. A.G.(1972) E.A. 515. Mwalimu Paul Mhozya v. A.G. (1996) 1 TLR 130. Patman Garments Industries v. Tanzania Manufacturers (1981) TLR 303. Pyx Granite v. Ministry of Local Government and Housing (1960) AC 261. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 46. Registrar of Buildings v. E. Mwasha (1982) TLR 242.

Delegated Legislation/Power Ahmed Dhirani v. R. (1979) LRT 11. J. Verji Ltd. v. T.H.B. Estates (1983) TLR 391. Kanji v. Tanga Town Authority, (1940) 1 TLR (R) 239. R. v Mangapi Mbuki (1969) HCD 251. Remtula Gulamani v. Rex 1 TLR (R) 203. Samwel Kubeja v. Republic (1981) TLR 68. Tanzania Air Services v. Minister for Labour and Others (1996) TLR 217. Titos Cornelio v. G.B. Mshana and Another (1981) TLR 128.

Deportation Hanif Ladak and Another v. Regional Prisons Officer (1981) TLR 68. In Re: D.S. Yamo and Another (1985) TLR 119. In Re: Latilal Patel (1956) 2 TLR (R) 227. In Re: Winfred Ngonyani (1982) TLR 272. Jama Yusuph v. Minister of Home Affairs (1996) TLR 142. R. v. Brixton Prison Governor ex parte Soblem (1962) 3 All ER 641. Samwel Kubeja v. Republic (1981) TLR 72. Sheikh Abdulla v. Regional Police Commander (1985) TLR 1.

Detention A.G. v. Lesinoi Ndeanai (1980) TLR 214. Ahmed J. Dhirani v. Republic (1979) LRT 11.

Cases on Specific Legal Themes

211

In Re: Winfred Ngonyani (1982) TLR 272. Shaban Khamis Mloo and Others v. Superintendent, Zanzibar Prisons (1991) TLR 21.

Discrimination Adecon Fisheries (T) Ltd. v. Director of Fisheries and Others (1996) TLR 352. J. Verji Ltd. v. THB Estates (1983) TLR 391. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Re: Bukoba Gymkhana Club (1963) E.A. 478. Shah Vershi Devshi v. Transport Licensing Board (1971) E.A. 289.

Discretionary Powers/Remedies Adecon Fisheries (T) Ltd. v. Director of Fisheries and Others (1996) TLR 352. Associated Provincial Picture Houses v. Wednesbury Corporation (1948) 1 KB 223. Board of Education v. Rice (1911) AC 120. Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. Congreve v. Home Office (1976) Q.B. 629. D.M.T. v. Transport Licensing Authority (1959) E.A. 403. Harun Nchama v. Republic (1982) TLR 274. James Gwagilo v. A.G. (1994) TLR 73. John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. Mohamed Salim v. Rex (1958) E.A. 202. Moris Onyango v. Customs (1980) TLR 150. Obadiah Salehe v. DOWICO (1990) TLR 113. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997. Re : Application by Fazal Kassam (Mills) (1960) E.A. 1002. Re: Bukoba Gymkhana Club (1963) E.A. 478. Rev. Mtikila v. A.G. (1995) TLR 31. Shah Vershi Devshi v. The Transport Licensing Board (1971) E.A. 289. Simeon Manyaki v. I.F.M. (1984) TLR 304. Tanzania Air Services Ltd. v. Minister of Labour (1996) TLR 33. Tanzania Dairies Ltd. v. Chairman, Arusha Conciliation Board (1994) TLR 33. The Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84.

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Administrative Law in Tanzania

The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). The Registrar of Buildings v. E. Mwasha (1982) TLR 242. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Wilson and Others v. Secretary of State for Environment (1974) 1 All ER 428; (1973) 1 W.L.R. 1083.

Dismissal James Gwagilo v. A.G. (1994) TLR 73. Saidi Shekimweri v. A.G. (1997) TLR 3.

Doctrine of proportionality D.P.P. v. Daudi Pete (1993) TLR 22. James Gwagilo v. A.G. (1994) TLR 73. Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77.

Duty of Judge Moris Sasawata v. Malieko (1996) TLR 158.

Elections A.G. v. Aman Walid Kabourou (1996) TLR 156. Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Rev. Mtikila v. A.G. (1995) TLR 31.

Equity Before the Law Julius Ndyanabo v. A.G., Court of Appeal of Tanzania Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159.

Cases on Specific Legal Themes

213

Error on Face of Record Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147; (1969) 2 W.L.R. 163 Baldwin & Francis v. Patents Appeal Tribunal (1959) AC 663. O’Reilly v. Mackman (1985) Q.B. 67; (1983) 2 AC 237. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 Q.B. 574. R. v. Nat Bell Liquors Ltd. (1922) AC 128. R. v. Northumberland Appeal Tribunal, ex parte Shaw (1952) 1 KB 338. Racecourse Betting Control Board v. Secretary for Air (1944) Ch. 114.

Fair Hearing Board of Education v. Rice (1911) AC 179. Cowasjee v. Cowasjee (1963) E.A. 84. De Souza v. Tanga Town Council (1961) E.A. 377. Donald Kilala v. Mwanza District Council (1973) HCD 19. General Medical Council v. Spackman (1943) AC 627. George Kibwana v. Kassim M. Khamis (1974) LRT 55. Jimmy D. Ngonya v. N.I.C. (1994) TLR 28. Local Government Board v. Arlidge (1915) AC 120. O’Reilly v. Mackman (1983) AC 237. R. v. Gaming Board ex parte Benaim and Khaida (1970) 2 Q.B. 430. R. v. Metropolitan Police Commissioner ex parte Parker (1953) 1 W.L.R. 1150. Ridge v Baldwin (1964) AC 40; (1963) 2 All ER 66. Wiseman v. Borneman (1971) AC 297.

Fundamental Rights A.G. v. Lohay Akonaay (1995) TLR 80. An Application by Paul Massawe (1979) LRT 18. D.P.P. v. Daudi Pete (1993) TLR 22. In Re: D.S. Yamo and Another v. Republic (1985) TLR 119. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001). Kanji v. Tanga Town Authority, 1 TLR (R) 239 (Unreported). Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. OTTU (On Behalf of Magasha) v. A.G. and Another (1997) TLR 30. Rev. Mtikila v. A.G. (19995) TLR 31.

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Administrative Law in Tanzania

Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1. Thabit Ngaka v. Regional Fisheries Officer (1973) LRT 24. The judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). Thomas Mjengi v. Republic (1992) TLR 157. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Good Faith Alfred Lakaru v. Town Director (Arusha) (1980) TLR 326. Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147; (1969) 2 W.L.R. 163. Board of Education v. Rice (1911) AC 179. Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. George Kibwana v. Kassim M. Khamis (1974) LRT 55. In Re: D.S. Yamo and Another (1985) TLR 119. Local Government Board v. Arlidge (1915) AC 120. R. v. Brixton Prison (Governor) ex parte Soblem (1963) 2 Q.B. 243. Ridge v. Baldwin (1964) AC 40; (1963) 2 All ER 66. Saidi Shekimweri v. A.G. (1997) TLR 3. Shaban Khamis Mloo and Others v. Superintendent, Zanzibar Prisons (1991) TLR 21. Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1.

Government Proceedings Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Rev. Mtikila v A.G. (1995) TLR 60.

Habeas Corpus In Re: Ratilal Patel, 2 TLR (R) 227. Liversidge v. Anderson (1924) AC 206. Samwel Kubeja v. Republic (1981) TLR 72. Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1.

Inherent Powers D.P.P. v. Daudi Pete (1993) TLR 22. Gulamhussein S. Virji v. Punja Lila (1959) E.A. 734.

Cases on Specific Legal Themes

215

Rev. Mtikila v. A.G. (1995) TLR 31.

Human Rights Liversidge v. Anderson (1947) AC 206. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Samwel Kubeja v. Republic (1981) TLR 72. Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1. Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported).

Injunctions Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. Hans W. Golcher v. Morogoro Canvas Mill (1987) TLR 78. Lucas Matafu v. Hon. M.M. Songambele (1977) LRT 10. Mwalimu Mhozya v. A.G. (1996) 1 TLR 130. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Irrelevant/Extraneous Considerations Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Associated Provincial Picture Houses v. Wednesbury Corporation (1947) 2 All ER 680; (1948) 1 KB 223. Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663. Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. James Gwagilo v. A.G. (1994) TLR 73. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997; (1968) 1 All ER 694. R. v. Paddington Valuation Officer ex parte Peachy (1965) 2 All ER 836; (1966) 1 Q.B. 380. Re: Bukoba Gymkhana Club (1963) E.A. 478. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Shaban Khamis Mloo and Others v. Superintendent, Zanzibar Prisons (1991) TLR 21. Shah Vershi Devshi Ltd. v. The Transport Licensing Board (1971) E.A. 289.

Judicial/Administrative Discretion Adecon Fisheries Ltd. v. Director of Fisheries and Others (1996) TLR 352. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. Harun Nchama v. Republic (1982) TLR 274.

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Administrative Law in Tanzania

John Byombalirwa v. The Regional Commissioner and Reginal Police Commander, Bukoba (1986) TLR 73. Lujuna Ballonzi, Senior, v. Trustees of CCM (1996) TLR 203. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. Moris Onyango v. Customs, Mbeya (1980) TLR 150. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 1032. Re: An Application by Fazal Kassam (Mills) Ltd. (1960) E.A. 1032. Re: Bukoba Gymkhana Club (1963) E.A. 478. Short v. Poole Corporation (1926) 66. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375.

Judicial Review A,G. v. Aman Walid Kabourou (1996) TLR 156. Agro Industries v. A.G. (1994) TLR 43. Alhaj Mungula v. BAKWATA (1997) TLR 50. Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Congreve v. Home Office (1976) Q.B. 629. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. D.C. Kiambu v. R. ex parte Njau (1960) E.A. 109. Harun Nchama v. A.G. (1997) TLR 274. James Gwagilo v. A.G. (1994) TLR 73. John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. Mohamed Jama Yusuph v. Minister of Home Affairs (1990) TLR 80. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 37. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997; (1968) 1 All ER 694. Patman Garments Ltd. v. Tanzania Manufacturers Ltd. (1981) TLR 30. R. v. Gaming Board ex parte Benaim and Another (1970) 2 Q.B. 417. Re: A,G.’s Application (1958) E.A. 482. Re: Marle’s Application (1958) E.A. 153. Rev Mtikila v A.G. (1995) TLR 31. Saidi Shekimweri v. A.G. (1997) TLR 3. Sanai Murumbe v. Muhere Chacha (1990) TLR 54. Shah Vershi Devshi v. The Transport Licensing Board (1971) E.A. 289. Sheikh Abdulla v. The Regional Police Commander and Others (1985) TLR 1. Short v. Poole Corporation (1926) Ch. 66.

Cases on Specific Legal Themes

217

Stephen Kiberenge and Others v. Republic (1986) TLR 6. Tanzania Air Services Ltd. v. Minster for Labour (1996) TLR 217. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Jurisdiction A.G. v. Lohay Akonaay and Another (1995) TLR 80. A.G. v. W,K, Butambala (1993) TLR 46. Alfred Lakaru v. Town Director, Arusha (1980) TLR 326. Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Board of Education v. Rice (1911) AC 120. Congreve v. Home Office (1976) Q.B. 629. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. D.P.P. v. Daudi Pete (1993) TLR 22. Dar es Salaam Motor Transport v. Transport Licensing Board (1959) E.A. 403. De Souza v. Tanga Town Council (1961) E.A. 377. General Medical Council v. Spackman (1943) AC 627. Gulamhussein v. Punja Lila (1959) E.A. 734. Hanif Ladak and Another v. Regional Prison Officer (1981) TLR 68. Harun Nchama v. Republic (1982) TLR 274. Healey v. Minister of Health (1954) 3 All ER 449. Himid Mbaye v. Brigade Commander, Zanzibar (1984) TLR 294. Hotel Africana v. JUWATA (1988) TLR 105. James Bita v. Idi Kambi (1979) LRT 9. Lucas Matafu v. Hon. M.M. Songambele (1977) LRT 10. Mapanda v. E.A.A. (1970) HCD 24. Mtenga v. University of Dar es Salaam (1971) HCD 247. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 37. Obadiah Salehe v. DOWICO (1990) TLR 113. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694. Pearlman v. Harrow School Governors (1979) Q.B. 56. R. v. Medical Appeal tribunal ex parte Gilmore (1957) 1 Q.B. 374. R. v. Metropolitan Police Commissioner, ex parte Parker (191953) 2 All ER 717. R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1952) 1 All ER 122. R. v. Paddington Valuation Officer ex parte Peachy (1965) 2 All ER 836. Racecourse Betting Control Board v. Secretary for Air (1944) 1 All ER 60; (1944) Ch. 114. Re: An Application, Nagindas Desai 2 TLR (R) 192. Re: An Application by Fazal Kassam (Mills) (1960) E.A. 1002.

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Administrative Law in Tanzania

Re: Application, Habibu Punja and Six Others 2 TLR (R) 205. Re: Bukoba Gymkhana Club (1963) E.A. 478. Re: Hirji Transport (1961) E.A. 88. Ridge v. Baldwin (1964) AC 40. Saidi Shekimweri v. A.G. (1997) TLR 3. Sanai Murumbe v. Muhere Chacha (1990) TLR 54. Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1. Tanganyika Electric Supply Co. v. Ahmed Omar (1965) EA 29. Tanzania Dairies v. Chairman, Arusha Conciliation Board (1994) TLR 33. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Titos Kornelio v. G.B. Mshana and Another (1981) TLR 128. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Leave to Apply for Prerogative Orders Alfred Lakaru v. Town Director, Arusha (1980) TLR 326. Hans W. Golcher v. Morogoro Canvas Mill (1987) TLR 78. Re: An Application by Hirji Transport (1961) E.A. 88. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Timothy Mwakilasa v. Principal Secretary, Treasury (1978) LRT 38. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Legal Aid/Legal Representation Alimasi Kalumbeta v. Republic (1982) TLR 329. D.P.P. v. Rugaimukamu (1982) TLR 139. Jaferali Haji v. Rex (1947) 1 TLR (R) 299. Mohamed s/o Salum v. R. (1958) E.A. 202. Mugema and Another v. Republic (1967) E.A. 676. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported).

Legitimate Expectations Gouriet v. Union of Post Office Workers (1978) AC 435. Lujuna Ballonzi, Senior v. Registered Trustee of CCM (1996) TLR 203. Pyx Granite v. Minister of Housing and Local Government (1960) AC 260; (1958) 1 Q.B. 544. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 969.

Cases on Specific Legal Themes

219

R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All ER 717. R. v. Paddington Valuation Officer ex parte Peachy (1966) 1 Q.B. 380. Rev Mtikila v. A.G. (1995) TLR 31. Ridge v. Baldwin (1964) AC 40; (1963) 1 Q.B. 539.

Mandamus/Prerogative Orders Adecon Fisheries v. Director of Fisheries and Others (1996) TLR 352. Alfred Lakaru v. Town Director, Arusha (1980) TLR 376. Baldwin & Francis v. Patents Appeal Tribunal (1959) AC 663. Board of Education v. Rice (1911) AC 179. D.C. Kiambu v. R. ex parte Njau (1960) E.A. 109. De Souza v. Tanga Town Council (1961) E.A. 377. Hans W. Golcher v. Morogoro Canvas Mill (1987) TLR 78. Jimmy D. Ngonya v. N.I.C. (1994) TLR 28. John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. Mapanda v. E.A.A. (1970) HCD 24. Moris Onyango v. Customs, Mbeya (1980) TLR 150. Ndesamburo v. A.G. (1997) TLR 137. Obadiah Salehe v. DOWICO (190) TLR 113. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694; (1968) AC 997. R. v. Metropolitan Police Commissioner ex parte Blackburn (1968) 2 Q.B. 118. R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All ER 717; (1953) 1 W.L.R. 1150. R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (1962) 1 KB 338. R. v. Paddington Valuation Officer ex parte Peachy (1965) 2 All ER 836. Re: An Application by Paul Massawe (1979) LTR 18. Re: Application by Fazal Kassam (Mills) (1960) E.A. 1002. Re: Application ex parte Habib Punja (1954) 2 TLR (R) 205. Re: ex parte Gilmore (1956) 1 Q.B. 574. Simeon Manyaki v. I.F.M. (1984) TLR 304. Stephen Kiberenge and Others v. Republic (1986) TLR 6. Tanzania Air Services Ltd. v. Minister for Labour and Others (1996) TLR 217. Tanzania Dairies v. Chairman, Arusha Conciliation Board (1994) TLR 33. Timothy Mwakilasa v. Principal Secretary, Treasury (1978) LRT 38. Tropex Ltd. and Others v. Commissioner of Income Tax and Others (1996) TLR 390.

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Administrative Law in Tanzania

National Security Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. Hanif Ladak and Another v. Regional Prisons Officer (1981) TLR 68. Liversidge v. Anderson (1942) AC 206. R. v. Brixton Prison Governor ex parte Soblem (1962) All ER 641. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Natural Justice/Audi Alteram Partem Alimasi Kalumbeta v. Republic (982) TLR 329. Anisminic Ltd. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. Board of Education v. Rice (1911) AC 179. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175. Congreve v. Home Office (1976) Q.B. 629. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. Cowasjee v. Cowasjee (1963) E.A. 84. D.P.P. v. Tesha and Another (1993) TLR 237. De Souza v. Tanga Town Council (1961) E.A. 377. Donald Kilala v. Mwanza District Council (1973) LRT 19. General Medical Council v. Spackman (1943) AC 627. George S. Kibwana v. Kassim M. Khamis (1974) LRT 55. Healey v. Minister of Health (1954) 3 All ER 449; (1955) 1 Q.B. 221. In Re: Pergamon Press (1971) Ch. 388. James Gwagilo v. A.G. (1994) TLR 73. Jimmy D. Ngonya v. N.I.C. (1994) TLR 28. Local Government Board v. Arlidge (1915) AC120. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. Ndesamburo v. A.G. (1997) TLR 137. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 37. R. v. Brixton Prison Governor ex parte Soblem (1962) 3 All ER 641; (1963) 2 Q.B. 243. R. v. Gaming Board ex parte Benaim and Another (1970) 2 Q.B. 417. Re: Bukoba Gymkhana Club (1963) E.A. 478. Ridge v. Baldwin (1964) AC 40. Sadiki Athumani v. Republic (1986) TLR 235. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54.

Cases on Specific Legal Themes

221

Sheikh Abdulla v. Regional Police Commander and Others (1985) TLR 1. Simeon Manyaki v. I.F.M. (1984) TLR 304. Tanzania Dairies v. Chairman, Arusha Conciliation Board (1994) TLR 33. The Judge In-charge, Arusha and A.G., Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported) The Registrar of Buildings v. Mwasha (1982) TLR 242. Wiseman and Borneman (1971) AC 297.

Ouster of Jurisdiction/Exclusionary Clauses A.G. v. Aman Walid Kabourou (1996) TLR 156. Ahmed J. Dhirani v. Republic (1979) LRT 11. Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175. D.C. Kiambu v. R. and Others ex parte Njau (1960) E.A. 109. Hanif Ladak and Another v. Regional Prisons Officer (1981) TLR 68. Harun s/o Nchama and Another v. Republic (1982) TLR 274. Healey v. Minister of Health (1954) 3 All ER 449; (1955) 1 Q.B. 221. James Gwagilo v. A.G. (1994) TLR 73. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. (1993) TLR 159. Liversidge v. Anderson (1942) AC 206. Local Government Board v. Arlidge (1915) AC 120. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Mapanda v. E.A.A. (1971) HCD 24. Mtenga v. University of Dar es Salaam (1971) HDC 247. OTTU (On Behalf of Magasha) v. A.G. (1997) TLR 30. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Pyx Granite Ltd. v. Minister of Housing and Local Government (1960) AC 260. R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 Q.B. 514. R. v. Paddington Valuation Officer ex parte Peachy. (1965) 2 All ER 836. Re: An Application by Desai, 2 TLR (R) 192. Re: Application by Hirji Transport (1961) E.A. 88. Re: Application, Habib Punja (1954) 2 TLR (R) 205. Re: Marle’s Application (1958) E.A. 153. Saidi Shekimweri v. A.G. (1997) TLR 3. Sanai Murumbe v. Muhere Chacha (1990) TLR 54. Smith v. East Elloe District Council (1967) AC 736.

222

Administrative Law in Tanzania

Stephen Kiberenge and Others v. Republic (1986) TLR 6. Tanganyika Electric Co. v. Ahmed Omar (1965) E.A. 29. Tanzania Air Services Ltd. v. Minister for Labour and Others (1996) TLR 217. The Judge In-charge, Arusha and A.G. v. N.I.N.Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). Thomas Mjengi v. Republic (1992) TLR 157.

Parliament/Legislature Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Associated Provincial Picture Houses v. Wednesbury Corporation (1947) 2 All ER 680. Congreve v. Home Office (1976) Q.B. 629. D.P.P. v. Daudi Pete (1993) TLR 22. Harun Nchama and Others v. Republic (1982) TLR 274. Healey v. Minister of Health (1954) 3 All ER 449. J. Verji v. T.H.B. Estates (1983) TLR 391. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Local Government Board v. Arlidge (1915) AC 120. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. M.A. Ndolanga and Others v. N.S.C. and Others (1996) TLR 325. Mtenga v. University of Dar es Salaam (1971) HCD 247. Mwalimu Paul Mhozya v. A.G. (1996) TLR 130. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 36. Paddington Valuation Officer ex parte Peachey (1965) 2 All ER 694. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694. R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 Q.B. 574. Re: Racal Communications (Re A Company) (1981) AC 374. Rev. Mtikila v. A.G. (1995) TLR 31. Samwel Kubeja v. Republic. (1981) TLR 72. Smith v. East Elloe District Council (1956) AC 736. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported).

Cases on Specific Legal Themes

223

Policy Healey v. Minister of Health (1954) 3 All ER 449. R. v. Brixton Prison (Governor) ex parte Soblem (1962) 3 All ER 641. R. v. Liverpool Corporation, ex parte Liverpool Taxi Owners Association (1975) 1 W.L.R. 701. Rev Mtikila v. A.G. (1995) TLR 31. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40.

Prima Facie Case In Re: Pergamon Press (1971) Ch. 388. Re: Application by Hirji Transport (1961) E.A. 88. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375.

Procedure A.G. v. W.K Butambala (1993) TLR 46. Adecon Fisheries v. Director of Fisheries and Others (1996) TLR 352. Ahmed J. Dhirani v. Republic (1979) LRT 11. Alfred Lakaru v. Town Director, Arusha (1980) TLR 326. Alh. A.J. Mungula v. BAKWATA (1997) TLR 50. Alimasi Kalumbeta v. Republic (1982) TLR 329. Anisminic Ltd. v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Arcado Ntagazwa v. Buyogera Bunyambo (1997) TLR 242. Board of Education v. Rice (1911) AC 179. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. Cowasjee v. Cowasjee (1963) E.A. 84. D.C. Kiambu v. R. ex parte Njau (1960) E.A. 109. De Souza v. Tanga Town Council (1961) E.A. 377. Donald Kilala v. Mwanza District Council (1973) LRT 19. Farmers Bus Service v. Transport Licensing Appeal Tribunal (1959) E.A. 799. Fatuma Awadh Hind v. Salima Ali (1987) TLR 375. Hans W. Golcher v. Mororgoro Canvas (1987) TLR 78. Healey v. Minister of Health (1954) 3 All ER 449. Himid Mbaye v. Brigade Commander, Zanzibar (1984) TLR 94. Hotel Africana v. JUWATA (1988) TLR 94. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Local Government Board v. Arlidge (1915) AC 120. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203.

224

Administrative Law in Tanzania

M.A. Ndolanga and Others v. N.S.C. and Others (1986) TLR 325. Mapanda v. Manager, E.A.A. (1970) HCD 24. Mwalimu Paul Mhozya v. A.G. (1996) TLR 130. Ndegwa v. Liquor Licensing Court (1957) E.A. 309. Northern Tanzania Farmers’ Co-op. Society v. W.H. Shellukindo (1978) LRT 36. O’Reilly v. Mackman (1983) 2 AC 237. Obedi Mtey v. Rukia Omari (1989) TLR 111. Re: Fazal Kassam (Mills) (1960) E.A. 1002. Re: Racal Communications Ltd. (Re A Company) (1981) AC 374. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Simeon Manyaki v. I.F.M. (1984) TLR 304. Thabit Ngaka v. The Regional Fisheries Officer (1973) LTR 24. The Assistant Registrar of Buildings v. F. Kibwana (1987) TLR 84. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania Civil Appeal No. 45 (1998) (unreported). The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Timothy Mwakilasa v. Principal Secretary, Treasury (1978) LRT 38. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Prohibition John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. The Republic ex parte Shirima v. Ulinzi na Usalama (1983) TLR 375. Tropex Ltd. and Another v. Commissioner of Income Tax and Others (1996) TLR 390.

Proportionality Doctrine (Principle) Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374; (1984) All ER 935. D.P.P. v. Daudi Pete (1993) TLR 22. James Gwagilo v. A.G. (1994) TLR 73. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Thomas Mjengi v. Republic (1992) TLR 157.

Cases on Specific Legal Themes

225

Public Duty Alh. A.J. Mungulla v. BAKWATA (1997) TLR 50. D.C. Kiambu v. R. ex parte Njau (1960) E.A. 109. Hans W. Golcher v. Morogoro Canvas (1987) TLR 78. John Byombalirwa v. The Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. R. v. Brixton Prison (Governor) ex parte Soblem (1962) 3 All ER 641. R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 All ER 717. R. Paddington Valuation Officer ex parte Peachy (1965) 2 All ER 836; (1966) 1 Q.B. 380.

Public Interest Agro Industries Ltd. v. A.G. (1994) TLR 43. Alimasi Kalumbeta v. Republic (1982) TLR 329. B.P. Bhatt v. Habib Rajani (1958) E.A. 536. Council of Civil Service Unions v. Minister for Civil Service (1977) 1 All ER 696; (1978) AC 374. D.P.P. v. Rugaimukamu (1982) TLR 139. Gouriet v. Union of Post Office Workers (1977) 1 All ER 696; (1978) AC 435. Hanif Ladak and Another v. Regional Prisons Officer (1981) TLR 68. James Gwagilo v. A.G. (1994) TLR 73. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Liversidge v. Anderson (1942) AC 206. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. OTTU (On Behalf of Magasha) v. A.G. and Another (1997) TLR 30. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. R. v. Medical Appeal Tribunal ex parte Gilmore (1957) 1 Q.B. 574. Rev. Mtikila v. A.G. (1995) TLR 31. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40. Saidi Shekimweri v. A.G. (1997) TLR 3. Shaban Khamis Mloo and Others v. Superintendent of Zanzibar Prisons (1991) TLR 21. Shah Vershi Devshi v. The Transport Licensing Board (1971) E.A. 289.

226

Administrative Law in Tanzania

Public Servant James Gwagilo v. A.G. (1994) TLR 73. Rev. Mtikila v. The Editor, Business Times and A.L. Mrema (1993) TLR. Said Shekimweri v. A.G. (1997) TLR 21. Thabit Ngaka v. Regional Fisheries Officer (1973) LRT n. 24.

Publication Fatuma Awadh v. Salima Ali (1987) TLR 156. J. Velji v. T.H.B. Estate (1983) TLR 391. Wilson and Others v. Secretary of State for Environment (1974) 1 All ER 428; (1973) 1 W.L.R. 1083.

Reasonableness/Unreasonableness Adecon Fisheries (T) Ltd v. Director of Fisheries and Other (1996) TLR 352. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680; (1948) 1 KB 223. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. Jaferali Haji v. Rex 1 TLR (R) 299. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. Mugema and Another v. Republic (1967) E.A. 676. Peter Ng’omango v. Gerson Mwangwa and A. G. (1993) TLR 77. Re: Bukoba Gymkhana Club (1963) E.A. 478. Rev. Mtikila v. A.G. (1995) TLR 31. Ridge v. Baldwin (1963) 2 All ER 66. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Thomas Mjengi v. Republic (1992) TLR 157. Wilson and Others v. Secretary of State for Environment (1974) 1 All ER 428.

Reasons for Decision Arcado Ntagazwa v. Buyogera Buyambo (1997) TLR 137. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175; (1948) 1 KB 223.

Cases on Specific Legal Themes

227

Congreve v. Home Office (1976) Q.B. 629. In Re: Ratilal Patel, (1956) 2 TLR (R) 227. James Gwagilo v. A.G. (1994) TLR 73. Mohamed Jawad Mrouch v. Minister of Home Affairs (1996) TLR 142. Mugema and Another v. Republic (1997) E.A. 676. Padfield v. Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694. Shaban Khamis Mloo and Others v. Superintendent of Zanzibar Prisons (1991) TLR 21. Tanzania Air Services Ltd v. Minister for Labour and Others (1996) TLR 217.

Relator Actions Gouriet v. Union of Post Office Workers (1977) Q.B. 729; (1978) AC 435. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. Rev. Mtikila v. A.G. (1995) TLR 31. Tropex Ltd and Another v. Commissioner of Income Tax and Others (1996) TLR 390.

Relevant Considerations/Irrelevant (Extraneous) Considerations Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959) AC 663. John Byombalirwa v. Regional Commissioner, Bukoba and Another (1986) TLR 73. Northern Tanzania Farmers Co-op. Society v. W.H. Shellukindo (1978) LRT 36, 37. O’Reilly v. Mackman (1983) 2 AC 237. R. v. Northumberland Compensation Appeal Tribunal (1952) KB 388. R. v. Paddington Valuation Officer ex parte Peachey (1966) 1 Q.B. 380. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Thomas Mjengi v. Republic (1992) TLR 157.

Revocation of Right of Occupancy Patman Garments Ltd v. Tanzania Manufacturers Ltd. (1981) TLR 303.

Rule of Law Anisminic Ltd v. Foreign Compensation Commission (1969) AC 147; (1969) 2 W.L.R. 163. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania Civil Appeal No. 64 (2001) (unreported).

228

Administrative Law in Tanzania

Northern Tanzania Farmers v. W.H. Shellukindo (1978) LRT 36, 37. Shah Vershi Devshi v. Transport Licensing Board (1971) E.A. 289. V.G. Chavda v. Director of Immigration (1995) TLR 125.

Safeguards D.P.P. v. Daudi Pete (1993) TLR 22. Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Thomas Mjengi v. Republic (1992) TLR 157.

Separation of Powers A.G. v. Lohay Akonaay and Another (1995) TLR 80. An Application by Paul Massawe (1979) LRT 18. D.P.P. v. Daudi Pete (1993) TLR 22. Hamisi Masisi v. Republic (1985) TLR 24. James Bita v. Idd Kambi (1979) LRT 9 Julius Ndyanabo v. A.G., Court of Appeal of Tanzania Civil Appeal No. 64 (2001) (unreported). Mwalimu Paul Mhozya v. A.G. (1996) TLR 130.

Severability of Statutory Provisions A.G. v. Lohay Akonaay and Another (1995) TLR 80. D.P.P. v. Daudi Pete (1993) TLR 22. Nanalal D. Kanji v. Transport Licensing Authority, 1 TLR (R) 239. Shaban K. Mloo and Others v. The Superintendent of Prisons (1991) TLR 21. Rev. Mtikila v. A.G. (1995) TLR 31. The Judge In-charge, Arusha and A.G. v. N.I.N. Munuo Ng’uni, Court of Appeal of Tanzania Civil Appeal No. 45 (1998) (unreported).

Standing/Locus Gouriet v. Union of Post Office Workers (1978) AC 435. James Gwagilo v. A.G. (1994) TLR 73. John Byombalirwa v. Regional Commissioner, Bukoba, and Another (1986) TLR 73. Lujuna Ballonzi, Senior v. Registered Trustees of CCM (1996) TLR 203. R. v. Hendon Rural District Council ex parte Chorley (1933) 2 KB 696. R. v. Metropolitan Police Commissioner ex parte Blackburn (1968) 2 Q.B. 118.

Cases on Specific Legal Themes

229

R. v. Paddington Valuation Officer ex parte Peachey (1966) 1 Q.B. 380. Rev. Mtikila v. A.G. (1995) TLR 60. Saidi Shekimweri v. A.G. (1997) TLR 3.

Statutory Duty/Public Duty Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175. Hans W. Golcher v. Morogoro Canvas Mill (1987) TLR 78. John Byombalirwa v. Regional Commissioner, Bukoba, and Another (1986) TLR 73. Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997; (1968) 1 All ER 694. R. v. Brixton Prison (Governor) (1962) 3 All ER 641. R. v. Metropolitan Police Commissioner ex p. Parker (1953) 1 W.L.R. 834; (1953) 2 All ER 717. Racecourse Betting Control Board v. Secretary for Air (1944) 1 All ER 60; (1944) Ch. 114. Re: Racal Communications (Re A Company) (1980) 2 All ER 634; (1981) AC 374. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40.

Ultra Vires Doctrine Adecon Fisheries (T) Ltd v. Director of Fisheries and Others (1996) TLR 352. An Application by Paul Massawe (1979) LRT 18. Anisminic Ltd v. Foreign Compensation Commission (1969) AC 147; (1969) All ER 208 (1969) 2 WLR 163. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania Civil Appeal No. 64 (2001) (unreported). Re: Racal Communications (Re A Company) (1980) 2 All ER 634. Ridge v. Baldwin (1963) 2 All ER 66; (1964) AC 40. Sheikh Abdulla v. Regional Police Commander, Dar es Salaam and Others (1985) TLR 1. Short v. Poole Corporation (1926) Ch. 66. Samwel Kubeja v. Republic (1981) TLR 72. The Judge In-charge, Arusha and A.G. v. N.I.M. Munuo Ng’uni, Court of Appeal of Tanzania Civil Appeal No. 45 (1998) (unreported). Titos Kornelio v. Mshana (1981) TLR 128.

230

Administrative Law in Tanzania

Unreasonableness Adecon Fisheries (T) Ltd v. Director of Fisheries and Others (1996) TLR 352. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 2 All ER 680 (1948) 1 KB 223. Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175. Congreve v. Home Office (1976) Q.B. 629. Council of Civil Service Unions v. Minister for Civil Service (1985) AC 374. D.P.P. v. Daudi Pete (1993) TLR 22. D.P.P. v. Ragaimukamu (1982) TLR 139. Julius Ndyanabo v. A.G., Court of Appeal of Tanzania, Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. A.G. and Another (1993) TLR 159. Pyx Granite Co. Ltd v. Ministry of Housing and Local Government (1958) 1 Q.B. 544; (1960) AC 260. Re: Bukoba Gymkhana Club (1963) E.A. 478. Sanai Murumbe and Another v. Muhere Chacha (1990) TLR 54. Short v. Poole Corporation (1926) Ch. 66.

Writs of Habeas Corpus In Re: Ratilal B. Patel, 2 TLR (R) 227. Liversidge v. Anderson (1942) AC 206. Re: Application by Hirji Transport (1961) E.A. 88. Samwel Kubeja v. Republic (1981) TLR 72. Sheikh Abdulla v. Regional Police Commander, Dar es Salaam and Others (1981) TLR 1.

TABLE OF CASES DIGESTED A.G. v. Aman Walid Kabourou (1990) TLR 156. Adecon Fisheries (T) Ltd. and Another v. Director of Fisheries and Others (1996) TLR 352. Agro Industries Ltd. v. Attorney General (1994) TLR 43. Ahmed Janmohammed Dhirani v. Republic (1979) LRT 11. Alfred Lakaru v. Town Director (Arusha) (1980) TLR 326 Alhaj A. J. Mungula v.BAKWATA (1997) TLR 50. Alimasi Kalumbeta v. Republic (1982) TLR 329. An Application by Paul Massawe (1979) LRT 18. Arcado Ntagazwa v. Buyogela Bunyambo (1997) TLR 242. Attorney General v. Lohay Akonaay and Another (1995) TLR 80. Attorney General v. W.K. Butambala (1993) TLR 246. D.P.P. v. Daudi Pete (1993) TLR 22. D.P.P. v. Arbogast Rugaimukamu (1982) TLR D.P.P. v. S.I. Tesha and Another (1993) TLR 237. Dar es Salaam Motor Transport Co. Ltd. v. The Transport Lincensing Authority (1959) E.A. 403. De Souza v. Tanga Town Council (1961) E.A. 377. Donald Kilala v. Mwanza District Council (1973) LRT 19. Fatuma Awadh Hind v. Salima Ali (1987) TLR 156. George Samwel Kabeja v. Passim Mohamed Khamis (1974) LRT 55. Hamisi Masisi and Others v. Republic (1985) TLR 121. Hanif Ladak and Another v. Regional Prisons Officer (1981) TLR 68. Hans Wolfgang Golcher, v. General Manager, Morogoro Canvas Mill (1987) TLR 78. Harun s/o Nchama and Another v. Republic (1982) TLR 274. Himid Mbaye v. The Brigade Commander (1994) TLR 294. Hotel Africana v. JUWATA (1988) 105. In Re: D.S. Yamo and Another and The Republic (1985) TLR 119. In Re: Ratilal B. Patel, (1956) 2 TLR (R) 227. In Re: Wilfred Ngonyani (1982) TLR 272. J. Verji Ltd. v. THB Estates Ltd. (1983) TLR 391. Jafferali Abdalla Haji v. Rex (1947) 1 TLR (R) 299. James Bita v. Idd Kambi (1979) LRT 9. James F. Gwagilo, v. A.G. (1994) TLR 203. Jimmy David Ngonya v. National Insurance Corporation (1994) TLR 28.

231

232

Administrative Law in Tanzania

John M. Byombalirwa v. Regional Commissioner and Regional Police Commander, Bukoba (1986) TLR 73. Julius I.F. Ndyanabo v. A.G., Court of Appeal of Tanzania Civil Appeal No. 64 (2001) (unreported). Kukutia Ole Pumbun and Another v. Attorney General and Another (1993) TLR 159. Lujuna Shubi Ballonzi, Senior, v. Registered Trustees of CCM (1996) TLR 203. M.A.Ndolanga and Others v. National Sports Council and Another (996) TLR 325. Mapanda v. The Manager, East African Airways (1970) HCD 24. Mohamed Jama Yusuph v. Minister for Home Affairs (1990) TLR 80. Mohamed Jawad Mrouch v. Minister for Home Affairs (1996) TLR 142. Mohamed s/o Salim v. R. (1958) E.A. 202. Moris Onyango v. Customs Department, Mbeya (1980) TLR 150. Mtenga v. University of Dar es Salaam (1971) HCD 247. Mugema and Another, v. Republic (1967) E.A. 676. Mwalimu Paul John Mhozya v. A.G. (1996) TLR 130. Nanal D. Kanji v. Tanga Township Authority (1940) 1 TLR 239. Ndesamburo v. Attorney General (1997) TLR 137. Northern Tanzania Farmers’ Co-operative Society v. W.H. Shellukindo (Merits) (1978) LRT 37. Obadia Salehe v. Dodoma Wine Co. (1990) TLR 113. OTTU (On Behalf of P.P. Magasha) v. A.G. and Another (1997) TLR 30. Patman Garments Industries Ltd. v. Tanzania Manufacturers Ltd. (1981) TLR 303. Peter Ng’omango v. Gerson Mwangwa and A.G. (1993) TLR 77. Re: An Application by Fazal Kassam (Mills) Ltd. (1960) E.A.1002. Re: An Application by Hirji Transport Service (1961) E.A. 88. Re: Application ex parte Habib Punja and Others, 2 TLR (R) 205. Re: Application, Nagindas H. Desai, (1954) 2 TLR (R) 192. Re: Bukoba Gymkhana Club (1963) E.A. 478. Rev. Christopher Mtikila v. The Editor, Business Times and Augustine Mrema (1993) TLR 60. Rev. Mtikila v. Attorney General (1995) TLR 285. Sadiki Athumani v. The Republic (1986) TLR 235. Saidi Juma Muslim Shekimweri v. Attorney General (1997) TLR 3. Samwel Kubeja v. Republic (1981) TLR 72. Sanai Murumbe v. Muhere Chacha (1990) TLR 54. Shaban Khamis Mloo and Others v. The Superintendent of Zanzibar Prisons (1991) TLR 21. Sheik Abdullla v. Regional Police Commander, Dar es Salaam (1985) TLR 1 Simeon Manyaki v. I.F.M. (1985) TLR 304. Stephen Kiberenge and Others v. Republic (1986) TLR 6. Tanganyika Electric Supply Co. v. Ahmed Omar (1965) E.A. 29.

Cases on Specific Legal Themes

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Tanzania Air Services Ltd. v. Minister for Labour, A.G. and Commissioner for Labour (1996) TLR 217. Tanzania Dairies Limited v. Chairman, Arusha Conciliation Board and Isaack Kirangi (1994) TLR 33. The Assistant Registrar of Buildings v. Fredrick G. Kibwana (1987) TLR 84. The Judge In-charge Arusha and A.G. v. N.I.N.Munuo Ng’uni, Court of Appeal of Tanzania, Civil Appeal No. 45 (1998) (unreported). The Registrar of Buildings v. Eliniiria Mwasha (1982) TLR 242. The Republic ex pate Shirima v. Kamati Ya Ulinzi Na Usalama, Wilaya Ya Singida, The Area Commissioner and A.G. (1983) TLR 375. Thomas Mjengi and Another, v. Republic (1992) TLR 157. Timothy H.M. Mwakilasa v. The Principal Secretary, Treasury, 1978 LRT 38. Titos Kornelio v. Geoffrey B. Mshana and Another (1981) TLR 128. Tropex Ltd. and Another v. Commissioner of Income Tax and Others (1996) TLR 390. V.G. Chavda v. Director of Immigration Services (1995) TLR 125.

BIBLIOGRAPHY CHIPETA, B.D., Civil Procedure in Tanzania: A Student’s Manual. Dar es Salaam University Press, 2002. CHIPETA, B.D., The Public Prosecutor and the Law of Criminal Procedure. Arusha: Eastern Africa Publications Ltd., 1988. GOVERNMENT OF THE UNITED REPUBLIC OF TANZANIA, Financial and Legal Management Upgrading Project (FILMUP): Legal Sector Report. Dar es Salaam: The Legal Task Force, January 1996. HARVEY, W.B., Introduction to the Legal System in East Africa, Kampala/ Nairobi/ and Dar es Salaam, East African Literature Bureau, 1975. HOGAN, G. and MORGAN, D.G., Administrative Law in Ireland, 3rd Edition. Dublin: Round Hall, Sweet and Maxwell, 1998. THOMSON, B., Constitutional and Adminstrative Law, 3rd Edition. Blackstone Press, 1997. TWAIB, F., The Legal Profession in Tanzania. Bayreuth African Studies and Dar es Salaam University Press, 1997. WADE, W. and CHRISTOPHER, F. (Eds.), Administrative Law, 7th Edition. Oxford: Clarendon Press, 1994.

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