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ADMINISTRATIVE LAW

I: INTRODUCTION TO ADMINISTRATIVE LAW

1.0. Introduction

During the previous century, i.e. 20th century, there have been a rapid development of administrative
law; this however does not mean that there was no administrative law before. The growth of
administrative law has been due to the change of the philosophy as regarding to the role and function of
the state. Currently the State is not a merely a police State, exercising sovereign function, but as a
progressive democratic State, whereby it seeks to ensure social security and social welfare for the
common man, regulating industrial relations, exercise and control over production, manufacture and
distribution of essential commodities, tries to achieve equality for all and ensure equal pay for equal
work. All these developments of State functions have necessitated the widening of the scope and ambit
of administrative law1.

1.1 Definition of Administrative Law

The concept of administrative law had posed a difficult approach for being defined, thus it is indeed
difficult to provide scientific, precise and satisfactory definition. The attempts by various scholars in
defining the term had encountered a challenge whereas some meaning were broad to include more
than necessary or too narrow which do not include the necessary ingredients. For some of the scholars
administrative law is a law relating to the control of powers of the government, whereas the main object
is to protect individual rights. Others place greater emphasis upon rules which are designed to ensure
that the administration effectively performs the tasks assigned to it. Yet to others see the principle
objective of the law is to ensure government accountability, and fostering the participation by
interested parties in the decision-making process2.

The following scholars have defined the term administrative law:

Ivory Jennings

Administrative law is the law relating to administration. It determines the organization, powers and
duties of the administrative authorities.

Criticism:

i. It does not distinguish administrative law from constitutional law; and

ii. It is very wide definition,

1
U.P. Warehousing Corpn v Vajpayee(1980) 3 SCC 459
2
Craig: Administrative Law, 1993, p.3

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iii. It does not include the remedies available to an aggrieved person when his rights are adversely
affected by the administration.

Wade

Administrative law is the law relating to the control of the governmental powers.

Criticism:

i. The definition speak about the object of the administrative law but not the subject
ii. It does not deal with the powers and duties of the administrative authorities or with the
procedure required to be followed by them.

Griffith and Street

The main object of the administrative law is the operation and control of administrative authorities.
Thus it must deal with the following aspects3:

i. What sort of powers does the administration exercise

ii. What are the limits of those powers
iii. What are the ways in which the Administration is kept within those limits
iv. What are the procedures followed by the administrative authorities4
v. What are the remedies available to a person affected by administration

M.P.Jain

Administrative law deals with the structure, powers and functions of the organs of administration, the
limits of their powers, the methods and procedures followed by them in exercising their powers and
functions, the methods by which their powers are controlled including the legal remedies available to a
person against them when his right are infringed by their operation5. According to this definition,
administrative law deals with four aspects;

i. It deals with the composition and powers of administrative authorities

ii. It fixes the limits of the powers of those authorities
iii. It prescribes the procedure to be followed by these authorities in exercising such powers
iv. It controls these administrative authorities through judicial and other means.

C.K. Takwani

Administrative law is the branch of the Constitutional law which deals with powers and duties of
administrative authorities, the procedure followed by them in exercising the powers and discharging the

3
Principles of Administrative law, 1967, p.3 (aspect no. 1-3)
4
Indian Law Institute: Cases and Materials on Administrative Law in India, 1966 Vol.1 (aspect no.4-5)
5
Treatise on Administrative Law, 1996, Vol.1. P.13

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duties and the remedies available to an aggrieved person when his rights are affected by an action of
such authorities6.

1.2 Nature and Scope of Administrative Law

Administrative law deals with

 The powers of the administrative authorities

 The manner in which the powers are exercised; and
 The remedies abused by these authorities

The main objective of the study of administrative law is to unravel the way in which these administrative
authorities could be kept within their limits so that the discretionary powers may not be turned into
arbitrary powers.7

1.3 Reasons for growth of Administrative Law

There are some factors which led to the rapid growth and development of the administrative law

i. The change of the role played by the State. The negative policy of maintaining law and order and
of laissez faire is given up. The State has not confined its scope to traditional and minimum
functions of defence and administration of justice, but has adopted the positive policy and as a
welfare State, thus undertakes to perform various functions.
ii. The inadequate of judicial system to decide and settle all types of disputes. There are slow
process, expenses, in-expertise, complexity and formalities in normal courts
iii. Inadequacy in legislative process, whereas the legislature has no time and technique to deal
with all the details in respect of all matters
iv. The flexibility of administrative process as compared to legislation process, whereas the rules
made by administrative bodies are easily changeable than those by the parliament
v. Administrative bodies can avoid technicalities, whereas the administrative tribunals are not
bound by rules of evidence and procedure like normal courts which are conservative, rigid and
technical.
vi. Administrative authorities can take preventive measures unlike the normal courts which wait for
the parties to come before them in dispute.

1.4 Historical Growth and Development of Administrative Law

A: England

In England, the existence of administrative law was not accepted until the advent of 20th century. In
1885, Dicey in his famous thesis on the rule of law observed that there was no Administrative law in
England, as he stated ‘In England, we know nothing of Administrative Law and we wish to know nothing
6
C.K. Takwani, Lectures on Administrative Law. P.4
7
C.K. Thakker: Administrative Law, 1966

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about it8’. But while saying this, he ignored the existence of administrative discretion and administrative
justice which were current even in his days9.

However, in 1914 Dicey changed his view as he admitted that due to the increase of duties and authority
of English officials, some elements of droit had entered into the Law of England10, but he did not
concede that there was administrative law in England.

Following the two decision of the House of Lords in Board of Education v Rice11 and Local Government
Board v Arlidge12, Dicey was convinced that there is administrative law in England13. This approach by
Dicey made the knowledge of the existence of administrative law to suffer the consequences as
observed by various scholars that,

 Dicey misunderstood the scope and ambit of the administrative law, as he thought
administrative law to be inconsistent with rule of law. Hence as he was studying rule of law, he
excluded altogether administrative law and a special system of administrative courts14
 The study of administrative law had suffered a lot because of the Dicey’s conservative approach,
whereas to many scholars the study of the administrative law was restricted only to two
aspects, thus delegated legislation and administrative adjudication.

In 1929, the Committee on Minister’s Powers headed by Lord Donoughmore was appointed to examine
the problems of delegated and judicial and quasi-judicial powers exercised by the officers appointed by
the ministers and to suggest effective steps and suitable safeguards to ensure the supremacy of the rule
of law15.

In 1932, the Donoughmore Committee submitted the report with recommendations which led to the
enactment of Statutory Instruments Act, 1946, the Crown Proceedings Act,1947 which made the
Government liable to pay damages in cases of tortuous and contractual liability of the Crown, thus the
abandonment of the famous doctrine that ‘the King can do no wrong’. In 1958, the Tribunals Inquiries
Act was passed for the purpose of better control and supervision of administrative decisions of the
administrative authorities and tribunals were made subject to appeal and supervisory jurisdiction of the
regular courts of law16.

B: Tanzania

NB: Refer notes on development of Constitution in Tanzania.

8
Robson: Administrative Law in England.
9
C.K. Takwani: Lectures of Administrative Law
10
Dicey: Law and the Constitution
11
1911 AC 179: 80 LJKB 496: 104 LT 689
12
1915 AC 120: 84 LJKB 72: 111 LT 950
13
Dicey: The Development of Administrative Law in England
14
Friednmann: American Administrative Law, 1962
15
C.K. Takwani: Lectures of Administrative Law
16
Ibid

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1.5 Constitutional Law and Administrative Law

In many definitions of administrative law, it was included in constitutional law. Many of the texts have
dealt with administrative law as part of constitutional law. In essence the administrative law does not
differ from constitutional law as both

 Are concerned with functions of the government

 Are part of public law in a modern State
 Have the same source, thus the Constitution

Distinction

 Constitutional law deals with structure and the broader rules which regulates the functions
WHILE administrative law deals with the details of the functions17
 Constitutional law is concerned with the organization and functions of the Government at rest
whilst administrative law is concerned with the organization of those functions in motion18

The Constitutional law deals with the general principles relating to the organization and power of the
legislature, judiciary and executive and their functions inter se and towards the citizen.

Administrative law is that part of constitutional law which deals in detail with the powers and the
functions of the administrative authorities, including civil services, public departments, local authorities
and other statutory bodies.

Thus, while constitutional law is concerned with constitutional status of ministers and civil servants,
administrative law is concerned with the organization of the services and the proper working of various
departments of the Government19.

1.6. Examples of Administrative Authorities in Tanzania

(a) Constitutional created

 The office of President. Article.33 – 46B
 The office of Vice President. Article.47 - 50
 The office of Prime Minister. Article.51 – 53A
 Ministries. Article.54 - 60
 The offices of Regional Commissioners. Article.61
 Local Government office. Article.145 – 146

(b) Statutory created

17
Maitland: Constitutional History, 1955
18
Hood Philips: Constitutional and Administrative law, 1962
19
C.K. Takwani: Lectures of Administrative Law

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 Tanzania Revenue Authority ( Tanzania Revenue Authority Act [Cap.399 R.E.2002])

 The Occupational Health and Safety Authority (The Occupational Health and Safety Act,
No.4 of 2003
 Surface and Marine Transport Regulatory Authority (Surface and Marine Transport
Regulatory Authority Act [Cap.413.R.E.2002]
 Tanzania Food and Drugs Authority (Tanzania Food and Drugs Authority Act, No.1 of
2003)
 Tanzania Civil Aviation Authority ( The Civil Aviation Act [Cap.80.R.E.2002]
 The Tanzania Communications Regulatory Authority
 Energy and Water Utilities Regulatory Authority

II: BASIC CONSTITUTIONAL PRINCIPLES

2.0. Introduction

The basic Constitutional principles are the elements of the ground norm law of the land that
characterize the basics of the constitution. These constitutional principles are known/ ought to be
known by the citizens to exist whether written or not.

The following are basic constitutional principles which are supposed to be enshrined within a
constitution, thus, the Rule of Law, the Parliamentary Supremacy, the Separation of Powers, the
Independence of Judiciary and Ministerial Responsibility.

However, the study of these principles was done in the course of Constitution and Legal system of East
Africa in first year. Thus the study under Administrative law is a matter of revision. The basic
constitution principles which will be dealt with under this lecture are Rule of Law and Separation of
Powers.

2.1 Rule of Law

This principle traces its origin from the works of Sir. Edward Coke, C.J as he was battling against the King
James I and he maintained that the King should be under God and the Law, thus he established the
supremacy of the law against the executive. Other scholars developed the concept of rule of law.

2.1.1 The object of the doctrine of Rule of Law

The Rule of law is for explaining the existence of relationship between individual subjects and their
government. This rule assumes that any action of the government towards a citizen must always have a
legal justification, thus actions not being arbitrary. The doctrine of Rule of law in modern constitutions
demand that all actions of the state affecting the rights and life of the individual in a civil society should
confirm strictly to the procedures and limitations prescribed by law.

2.1.2 Meaning of the Doctrine of Rule of Law

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According to Dicey, the rule of law is one of the fundamental principles of the English Legal system. In
his book he attributed the following three meanings to the said doctrine: supremacy of law, equality
before law and predominance of legal spirit20.

(a) Supremacy of the law

The rule of law means the absolute supremacy or predominance of regular law as opposed to
the influence or arbitrary power or wide discretionary power. It excludes the existence of
arbitrariness, of prerogative or even wide discretionary authority on part of the Government.
Thus, Dicey assert that a man may be punished for a breach of law, but can be punished for
nothing else21. He further contended that, wherever there is discretion, there is room for
arbitrariness and that in a republic no less than under a monarchy discretionary authority on the
part of the Government must mean insecurity for legal freedom on the part of its subjects22.
Thus the rule of law requires that the Government should be subject to the law, rather than the
law subject to the Government23. Therefore the doctrine emphasis that no man can be arrested,
punished or be lawfully made to suffer in body or goods except by due process of the law
established in the ordinary legal manner before the ordinary courts of the land24.

(b) Equality before the law

In regard with the second principle of the rule of law, there must be equality before the law or
the equal subjection of all classes to the ordinary law of the land administered by the ordinary
courts25. According to Dicey in England, all persons were subject to one and the same law, and
there were no extraordinary tribunals or special courts for the officers of the Government and
other authorities26. Dicey criticized the French legal system of droit administratif in which there
were separate administrative tribunals for deciding cases between the officials of the State and
the citizens. Thus, exemption of the civil servants from the jurisdiction of the ordinary courts of
law and providing them with the special tribunals was negation of equality27, whereas any
encroachment on the jurisdiction of the courts and any restrictions on the subject’s unimpeded
access to them are bound to jeopardize his rights28.

(c) Predominance of legal spirit

In his book Dicey explained that in many countries rights such as to personal liberty, freedom
from arrest, freedom to hold public meetings are guaranteed by a written Constitution; in
England those rights are the result of judicial decisions in concrete cases which have actually

20
C.K. Takwani: Lectures of Administrative Law
21
Dicey: the Law and the Constitution, 1915
22
Ibid
23
Wade: Administrative Law, 1994
24
C.K. Takwani: Lectures of Administrative Law
25
Dicey: the Law and the Constitution, 1915
26
Ibid
27
C.K. Takwani: Lectures of Administrative Law
28
Dicey: the Law and the Constitution, 1915

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arisen between the parties29. Dicey emphasized the courts of law as guarantors of liberty and
suggested that the rights would be secured more adequately if they were enforceable in the
courts of law than by mere declaration of those rights in a document i.e, constitution as they
can be ignored, curtailed or trampled upon.30

2.1.3 Modern concept of Rule of Law

Though Dicey explained the concept of rule of law, however it was not accepted as a whole idea, thus
some development have been done in explaining the doctrine.

Davis gives seven principal meanings of the term rule of law31:-

 Law and Order

 Fixed rules
 Elimination of discretion
 Due process of law or fairness
 Natural law or observance of the principles of natural justice
 Preference for judges and ordinary courts of law to executive authorities and administrative
tribunals; and
 Judicial review of administrative actions

2.1.4 Basic elements and characteristics of rule of law

According to Issa Shivji, there are minimum elements of rule of law these are:-

 Political or public power must be authorized by and exercised in accordance with law or rules
 The law should have been made by a representative body dully authorized by people to make
law. E.g. legislative
 The law makers should not be the same people who determine what the law means
 Law should treat all human beings equally regardless of their origin or socio-economic condition
 Law should not be contrary to basic human rights

The essential characteristics of rule of law are;

 The supremacy of law, which means that all persons (individuals and government) are subject to
law

29
C.K. Takwani: Lectures of Administrative Law
30
Ibid
31
Davis: Administrative Law, 1959

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 A concept of justice which emphasizes interpersonal adjudication, law based on standards and
importance of procedures
 Restrictions on the exercise of discretionary power
 The doctrine of judicial precedent
 The common law methodology
 Legislation should be prospective and not retrospective
 An independence of judiciary
 The exercise by Parliament of the legislative power and restrictions on exercise of legislative
power by executive
 An underlying moral basis for all law

2.1.5 Rule of Law in Tanzania

Since independence, the Tanzania political and legal system has been tainted with the practice of non-
adherence to the doctrine of rule of law. There is wide divergence between what is said in theory by
those in power and what happens in practice. From time to time politicians indicated the belief in rule of
law. For example the comments given by the former President Nyerere on the penalties given to the
army mutineers back in 1964, referred to the rule of law as one of the principles guiding the country. He
said

‘ there is some considerable criticism of the very lenient sentences passed on the fourteen soldiers
convicted of conspiracy and taking part in the mutiny of the Tanganyika Rifles in January of this year. The
Government wishes to make clear that it shares the feeling that the penalties imposed by decision of the
high Court Judge and two army officers bore no relation to the seriousness of the offences and the
damages, which was done to our country. Despite this criticism, the Government does not intend to vary
the sentences imposed in these cases. To interfere with the court’s decision would be to do exactly that
thing for which the nation condemns the soldiers – it would be to abrogate the rule of law… the rule of
law is the basis on which rests the freedom and equality of our citizens. It must remain the foundation
of our State. We must not allow even our disgust with the mutineers to overcome our principles 32’

The history of the rule of law in Tanzania has great linkage with that of Bill of rights for two reasons33:-

(a) at independence the powers that be rejected the inclusion of a Bill of Rights in the Constitution
on the grounds that the Governments believed that the rule of Law was best preserved not by
formal guarantees, in a Bill of Rights which invite administering justice free from political
pressure

32
Nyerere J.K: Freedom and Unity: A Selection from writings and speeches 1952-1965 Dar es Salaam, Oxford
University Press, 1966; at pp 298-299; also quoted in Peter, Chriss Maina; Human Rights in Tanzania: Selected
Cases and Materials 1977. Koln: Koppe, Dar es Salaam; at pp.305-306
33
Mtaki and Okema: Constitution Reforms and Democratic Governance in Tanzania, 1994; article by Wambali
Michael: “The Doctrine of Rule of Law and the Functioning of Government in Tanzania”

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(b) in the absence of Constitutional safeguards that were negated by the exclusion of the Bill of
Rights, the state in Tanzania under one party system went on to create a very powerful and
centralized government authority capable of enforcing its will invariably illegally at the
detriment of both individual and community rights in obvious negation of the rule of law.

The relevant article within the Constitution of Tanzania is Article 13

“All persons are equal before the law and are entitled, without any discrimination, to protection and
equality before the law” Article 13(1)

In explaining this article, Prof. Maina observes that, the rule of law demands that all subjects be treated
equally before the law. This means all classes of people in civil society should be treated alike by law
itself and before all law enforcement bodies and agencies which are created by the law. The law should
neither be made to benefit a particular section of a society nor to the disadvantage of another.

Equality before the law has also been taken to be a rule requiring all functions of the state which are
likely to affect the basic rights of the people to be subjected equally before the law. The rule of law
demands that the State and its organs should act according to and within the authority conferred by
law. In the same vein, they should not give unnecessary privileges and cushions to the State and its
organs. This rule is strict in the sense that, apart from the State being a subject of law as a judicial
person. If the State will accord such privileges it will abandon its duty to acting within the law and the
rights of the individuals will be at stake and without remedy in cases of excesses.34

In the case of Cumchua Marwa v Officer in Charge of Musoma and Another35, Mwalusanya J stated
that

“I believe that the rule of law means more than acting in accordance with the law. The rule of law must
also mean fearless of the government. Rule of law does not give the government too much power. The
rule of law is opposed to the rule of arbitrary power. The rule of law requires that the government should
be subject to the law rather than the law subject to the government. If the law is wide enough to justify a
dictatorship then there is no rule of law. Therefore if by the rule of law all it means is that the
government will operate in accordance with the law, then the doctrine of rule of law becomes a betrayal
of the individual if the laws themselves are not fair but are oppressive and degrading”

However, it should be noted that there have been erosion of the rule of law and violations of Human
Rights in Tanzania before and after the enactment of the Bill of Rights in 1984.

2.1.6 Factors that undermined the Rule of Law and violation of Human Rights in Tanzania

NB: Refer lecture notes provided in the course of Constitution & Legal Systems of East Africa.

34
Chriss Maina Peter: Human Rights in Tanzania: Selected cases and Materials – 1997, pp 379 - 380
35
High Court at Mwanza, Misc Criminal Cause No. 2 of 1988 (unreported)

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2.2 Separation of Powers

The doctrine of separation of powers has emerged in several forms at different periods. Its origin is
traceable to Plato and Aristotle. During 16th and 17th Centuries, French philosopher John Bodin and
British politician John Locke respectively had expressed their views about the theory of separation of
powers. However, it was Montesquieu who for the first time formulated this doctrine systematically,
scientifically and clearly in his book ‘Esprit des Lois’ i.e. the Spirit of Laws published in 1748.36

2.2.1 Meaning of Separation of Powers

The meaning of separation of powers is ascribed in the sense of division of organs of State, thus
Legislature, Executive and Judiciary whereas in turn bring about three main categories of governmental
functions: - the legislative functions, the executive functions and judicial functions. According to the
theory of separation of powers, these three powers and functions of the Government must, in a free
democracy, always be kept separate and be exercised by separate organs of the Government. Thus the
legislature cannot exercise executive or judicial power; the executive cannot exercise legislative or
judicial power and the judicial cannot exercise legislative or executive power of the Government.37

2.2.2 Montesquieu doctrine

In his book Montesquieu said the following38:-

 When the legislative and executive powers are united in the same person, or the same body of
magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch
or senate should enact tyrannical laws, to execute them in tyrannical manner
 Again, there is no liberty if the judicial power be not separated from the legislative and the
executive. Where it joined with the legislative, the life and liberty of the subject would be
exposed to arbitrary control; for a judge would then be a legislator. Where it joined with
executive power, the judge might behave with the executive power, the judge might behave
with violence and oppression
 Miserable indeed would be the case, were the same man or the same body, whether of the
nobles or of the people, to exercise those three powers, that of enacting laws, that of executing
the public resolutions and that of judging the crimes or differences of individuals.

The object of separation of powers by Montesquieu was to ensure the protection of one’s liberty.

Criticisms of Montesquieu doctrine

Montesquieu’s exposition of the doctrine of separation of powers was based on the British constitution
of the first part of the 18th century as he knew it. Unfortunately his division of powers did not exactly fit
the said constitution, thus his greatest mistakes were as follows39:-

36
C.K. Takwani: Lectures of Administrative Law
37
Ibid
38
Montesquieu: Espirit des Lois

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 He failed to appreciate the scope of powers of the executive to him, the executive power meant
only the power executing matters falling within the law of the nations i.e. making war and
peace, sending and reception of ambassadors, establishing order, and preventing invasion.
 He failed to know that the government is a single entity in the sense that there cannot be total
or absolute separation of powers, but the three organs of the State have some connections to
one another. If there were separation of powers, the government or State would collapse.
 He failed to know that it is not the concentration of too much power under one person but
rather the lack of safeguards or controls (checks and balances) that may undermine the state or
government.

The above criticisms led to the conclusion that Montesquieu did not make a thorough analysis of the
British constitution. However, despite the criticisms, he succeeded in laying down the foundation for the
model doctrine of separation of powers.

2.2.3 Modern meaning of the doctrine

According to Wade and Phillips40, separation of powers may mean three things

(a) That the same persons should not form part of more than one of the three organs of the
government, E.g. that ministers should not sit in parliament;
(b) That one organ of the government should not control or interfere with the exercise its functions
by another organ, E.g. the Judiciary should be independent of the Executive or that Ministers
should not be responsible to the Parliament
(c) That one organ of the government should not exercise the functions of another, E.g. Minister
should not have legislative power

However, the water-tight compartmentalization of the functions of the government would obviously
bring the government to a standstill i.e. any rigid separation of the state’s departments in the manner
above would paralyze it. Being aware of the dangers of strict application of the doctrine, Wade rightly
observes that its value lies in the emphasis that these departments ought to have no partial agency in,
or no control over, the acts of each other. Thus in a nutshell, what the doctrine must be taken to
advocate is the prevention of tyranny by the conferment of too much power on any one person or body
and the check of one power by another.

2.2.4 The doctrine of Separation of Powers in Tanzania

According to the Constitution of Tanzania of 1977, the doctrine of Separation of Powers has been
embodied therein.

NB: Refer
39
Mtaki C.K and Okema op.cit at pp 197 - 198
40
Constitutional law 1960

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 Article 4 (general separation of powers)

 Chapter II: Executive
 Chapter III: Legislature
 Chapter V: Judiciary

However, there has been no strict separation of powers in Tanzania. Thus for evidence to prove the
absence of separation of powers in Tanzania refer lecture notes of Constitution & Legal Systems of East
Africa.

III: CLASSIFICATION OF ADMINISTRATIVE ACTIONS

3.0 Introduction

As observed in previous lectures that the organs of the State are Legislature, Executive and Judiciary and
they perform three classes of governmental functions thus; legislative functions, executive or
administrative functions and judicial functions. The function of legislature is to enact law, the executive
is to administer the law and the judiciary is to interpret law and to declare what law is41. The term
executive or administration does not mean that the functions of the executive are confined exclusive to
those of administrative character42. Currently the executive does variety of functions which includes the
following; to investigate, to prosecute, to prepare and adopt schemes to issue and cancel licences etc
(administrative), to make rules, regulations and bye-laws, to fix prices (legislative); to adjudicate on
disputes, to impose fines and penalty etc (judicial)43. Hence, the rule –making (quasi – legislative) and
adjudication (quasi – judicial) have become the chief weapons in the administrative armoury44

3.1 The Rationale of Classification

Though distinguishing the functions of these organs of the state is difficulty still there is a need to draw a
test upon which can classify these functions. The difficulties may be due to the following reasons:-

 The questions arises for consideration is whether the functions performed by the executive
authorities are purely administrative, quasi-judicial or quasi-legislative in character
 There is a difficulty in a case which a single proceeding may at times combine various aspects of
the three functions.

Thus, the classification of the functions is necessary and inevitable as many consequences flows from
it.45 The failure to classify the functions may bring about confusion as in the following examples as
observed by Takwani

41
C.K. Takwani: Lectures of Administrative Law
42 th
Halsbury ‘s Laws of England, 4 Edition Vol 1
43
C.K. Takwani: Lectures of Administrative Law
44
Schwartz: French Administrative Law and the Common Law World, 1954.
45
C.K. Takwani: Lectures of Administrative Law

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 If the executive authority exercises a judicial or quasi-judicial function, it must follow the
principles of natural justice and is amenable to the writ of certiorari or prohibition, but if it is
administrative, legislative or quasi-legislative function, this is not so.
 If the action of the executive authority is legislative in character, the requirement of publication,
laying on table etc, should be complied with, but it is not necessary in the case of pure
administrative action.
 If the action is administrative, delegation is permissible, but if it is judicial, it cannot be
delegated.
 An exercise of legislative power may not be held invalid on the ground of unreasonableness, but
an administrative decision can be challenged as being unreasonable.

3.2 General Distinction of Legislative, Executive and Judicial Functions

The general distinction of the three functions has been put forward by Willis46 as he defined each
function as follows:-

(a) Legislative power is the power to create rights, powers, privileges, or immunities, and their
correlatives as well as status, not dependent upon any previous rights, duties, etc.(or for the
first time), that is, apparently, the power of creating antecedent legal capacities and liabilities.
(b) Judicial power is the power to create some right or duty dependent upon a previous right or
duty, that is, apparently the power to create remedial legal capacities and liabilities.
(c) Executive power is the power which includes all governmental powers with exception of
legislative or adjudicative power, that is, the power which is concerned mostly with the
management and execution of public affairs.

3.3 Legislative Functions

Legislative functions of the executive consists of making rules, regulations, bye-laws etc. though the
distinction as between legislative and administrative functions of the executive is difficulty, it is
necessary to draw a line as different legal rights and consequences may ensue.47 According to Schwartz
a particular function may be termed legislative or rule – making rather than judicial or adjudication, it
may have substantial effects upon the parties concerned.48 In making of legislation whether primary or
delegated there is no right to be heard, unless it is provided by the statute.49 Examples of legislative
functions are fixation of price, declaration of a place to be a market yard, imposition of tax etc.

3.3.1 The Distinction of Legislative and Judicial Functions

Legislative Function Judicial Function

1. Legislation looks to the future and changes A judicial inquiry investigates, declares and

46
Treatise on Constitutional law
47
C.K. Takwani: Lectures of Administrative Law
48
Administrative Law, 1976
49
Wade: Administrative Law, 1994

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existing conditions by making a new rule to be enforces liabilities as they stand on present or
applied thereafter to all or some part of those past facts and under laws supposed already to
subject to its power. exist.

This distinction has been proposed by Justice Holmes whereby the main aspect of distinction is element
of time.

 A rule (legislative function) prescribes future pattern of conduct and creates new rights and
liabilities, whereas a decision (judicial function) determines the rights and liabilities on the basis
of present or past facts, and declares the pre-existing rights and liabilities.

3.3.2 The Distinction of Legislative and Administrative Functions

Legislative Administrative
1. -A power to make rules of general -A power to give an order in a Test: applicability
application is a legislative power and thespecific cases is an executive of the act50
rule is a legislative rule power and the order is an
executive action
-A legislative act is a creation and -Administrative act is the By De Smith51
promulgation of a general rule of a application of general rule to a
conduct without reference to particular particular case
cases

2. -A legislative act looks to the future and -Administrative order is issued to The Report of the
changes the existing conditions by a specific persons only Committee on
making new rule to be applied Ministers’ Powers52
thereafter to all or part of those subject
to his power and determines what shall
in the future be the mutual rights and
responsibilities of the parties by
prescribing a binding rule of conduct

As it has been noted by the Committee that ‘it is indeed difficult in theory and impossible in practice to
draw a precise dividing line between the legislative function on one hand and purely administrative on
the other’ as performed by administrative authority.53

There are legal consequences which flow from the above distinction as put forward by De Smith as
follows54:-

50
Griffith and Street: Principles of Administrative Law, 1973, p.50
51
Judicial Review of Administrative Actions, 1995, p.1006
52
1932, CMD 4060
53
Ibid
54
Judicial Review of Administrative Action, 1980, p.71-73

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(a) If an order is legislative in character, it has to be published in a certain manner, but this is not
necessary if it is of an administrative nature.
(b) If an order is legislative in character, the court will not issue a writ of certiorari to quash it, but if
an order is an administrative order and the authority was required to act judicially, the court can
quash it by issuing a writ of certiorari.
(c) Generally, subordinate legislations cannot be held invalid for unreasonableness, unless its
unreasonableness is evidence of mala fide or otherwise shows the abuse of power. But in case
of unreasonable administrative order, the aggrieved party is entitled to a legal remedy.
(d) Only in most exceptional circumstances can legislative powers be sub-delegated, but
administrative powers can always be sub-delegated.
(e) Duty to give reasons applies to administrative orders but not to legislative orders.

3.4 Judicial Functions

The judicial functions presupposes the existence of dispute between two or more parties whereas it
involve the following requisites55

(a) The presentation of their case by the parties to the dispute

(b) If the dispute is a question of fact, the ascertainment of the fact by means of evidence adduced
by the parties to the dispute and often with the assistance of argument by or on behalf of the
parties, on evidence
(c) If the dispute between them is a question of law, the submission of legal arguments by parties;
and
(d) A decision which disposes the whole matter by finding upon the facts in dispute and application
of the law of the land to the facts so found, including, where required, a ruling upon any dispute
of law.

If all these requisites present, the decision is a judicial decision even though it might have been
made by an authority other than the court, such as the Minister, Board, Executive Authority,
Administrative Officer or Administrative Tribunal.56

3.4.1 Quasi – Judicial Functions

This means the authority when exercise takes some of the attributes of judicial functions. The
Committee describes the functioning of quasi-judicial body as the one which presupposes the existence
of dispute between two or more parties and involve the presentation of their case by parties and
ascertainment of facts by means of evidence i.e (a) and (b), whereas does not necessary involve a
dispute of question of law and the decision is not by way of application of law on said facts i.e.(c) and
(d)57.

55
The Report of the Committee on Ministers’ Powers 1932, CMD 4060 (4073-74)
56
C.K. Takwani: Lectures of Administrative Law, p.45
57
The Report of the Committee on Ministers’ Powers 1932, CMD 4060 (4073-74)

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Criticisms58

 The Committee characterized the judicial function as being devoid of any discretionary power
but obliged to merely apply the law to the proved facts, but in reality the court also do exercise
discretion
 The authority may decide the matter not between two or more contesting parties but between
itself and another party
 These some cases in which no evidence is required to be taken and yet the authority has to
determine the questions of facts after hearing the parties, e.g. rate-making or price fixing.
 After ascertainment of the facts, the authority is not bound to apply the law to the facts so
ascertained, but the decision may be based on public policy or administrative discretion.

3.4.2 The Distinction between Quasi – Judicial and Judicial Functions

A quasi – judicial function differs from a purely judicial function in the following respects:-59

(a) a quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless
there is an obligation to act judicially
(b) A lis inter parties is an essential characteristic of a judicial function, but this may not be true of a
quasi – judicial function
(c) A court is bound by the rules of evidence and procedure while a quasi – judicial authority is not
(d) While a court is bound by precedents, a quasi – judicial authority is not
(e) A court cannot be a judge in its own cause (except in contempt cases) while an administrative
authority vested with quasi – judicial powers may be a party to the controversy but can still
decide it.

Therefore a quasi – judicial decision is nearer the administrative decision in terms of its discretionary
elements and nearer the judicial decision in terms of procedure and objectivity of its end-product60.

3.5 Administrative Functions

As it has been very difficult to define what administrative functions mean or contains from the outset,
therefore the approach which has been used to classify the administrative function is the executive
power connotes the residue of the governmental functions that remains after legislative and judicial

58
C.K. Takwani: Lectures of Administrative Law, p.46
59
Basu: Administrative Law, 1996, pp.241-16
60
Griffith and Street: principles of Administrative law, 1973, p.141

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functions are taken away.61Thus, the administrative functions are those functions which are neither
legislative nor judicial in character. The following are ingredients present in administrative functions62:-

 An administrative order is generally based on governmental policy or expediency

 In administrative decisions, there is no legal obligation to adopt a judicial approach to the
questions to be decided, and decisions are usually subjective and not objective.
 An administrative authorities is not bound by the rules of evidence and procedure unless the
relevant statute specifically imposes such an obligation
 An administrative authority can take a decision in exercise of a statutory power or even in the
absence of statutory provisions, provided such decision or act does not contravene provisions of
any law
 Administrative function may be delegated or sub-delegated unless there is specific bar or
prohibition in the statute
 While taking a decision, an administrative authority may not only consider the evidence
adduced by the parties to the dispute, but may also use its discretion.
 An administrative authority is not always bound to the rules of natural justice unless the statute
casts such duty on the authority, either expressly or by necessary implication or if it is required
to act judicially or fairly
 The prerogative writs of certiorari and prohibition are not always available against
administrative actions
 An administrative order may be held invalid on the ground of unreasonableness.

3.5.1 The Distinction between Administrative and Quasi – Judicial Functions

Acts of administrative authorities may be purely administrative or may be legislative or judicial in

nature. The decisions which are purely administrative stand on the wholly different footing from judicial
as well as quasi-judicial decisions and therefore they must be distinguished.63 Distinguishing the two is
very difficult task as MacDermott exclaimed that ‘where does the administrative end and judicial begin?
The problem here is that of demarcation and the courts are still in the process of working it out64’

The rationale behind this distinction is the increase of power of administrative authorities as it is
necessary to provide guidelines for the just exercise thereof, thus to prevent abuse of power and to see
that it does not become a new despotism, courts have evolved certain principles to be observed by
adjudicating authorities.65

The required test as to distinguish the two functions as performed by an administrative authority is the
duty to act judicially and thus for a one to ascertain whether a particular statutory authority is a quasi –

61
AIR 1955 SC 549:(1955) 2 SCR 225
62
C.K. Takwani: Lectures of Administrative Law, p.47-48
63
Ibid
64
MacDermott, cited by Basu: Commentary on the Constitution of India, Vol. B1975, p.151
65
C.K. Takwani: Lectures of Administrative Law, p.48-49

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judicial body or merely an administrative body is to check if it has the duty to act judicially. The question
is how would you ascertain whether such authority has the duty to act judicially? Referring to the
observation made by Atkin L.J in R v Electricity Commissioners66 that ‘whenever anybody of persons
having legal authority to determine questions affecting the rights of subjects and having the duty to act
judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s
Bench Division exercised in these writs’

Administrative function Quasi – Judicial function

1. Lis inter parties -in absence of lis inter parties the -in the presence of lis inter parties
administrative authority is not bound to the administrative authority has to
act in quasi-judicial manner decide in quasi-judicial manner
2. Quasi - lis - in absence of quasi-lis the -in presence of qiasi-lis, whereas the
administrative authority is not obliged administrative authority has to
to act in quasi – judicial manner decide between itself and another
party or a decision which will
prejudicially affect any person, thus
it has to act judicially.

There is no precise way on distinguish the two functions, however a person can scrutinize the indicators
as can help to distinguish:-

 One has to look to the nature of the power conferred

 The person or persons on whom it is conferred
 The framework of the law conferring that power
 The consequences ensuing from the exercise of such power; and
 The manner in which such power is expected to be exercised

Therefore, the requirement of acting judicially in essence is nothing but a requirement to act justly and
fairly and not arbitrarily or capriciously.67

IV: GENERAL PRINCIPLES ON DELEGATED LEGISLATION

4.0 Introduction

According to the traditional theory, the function of the executive is to administer the law enacted by the
legislature, whereas in the ideal State, the legislative power must be exercised exclusively by the
legislators who are directly responsible to the electorate,68but however still the executive apart from the
pure administrative functions, does perform many legislative and judicial functions as well.

Meaning of Delegated legislation

66
(1924) 1 KB 171: 93 LJKB 390:130 LT 164
67
C.K. Takwani: Lectures of Administrative Law, p.54
68
C.K. Takwani: Lectures of Administrative Law, p.58

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Though defining the term delegated legislation has posed difficult to many scholars, thus unable to give
precise meaning, the following words may ascribe the meaning of the concept;

‘When the function of legislation is entrusted to organs other than the legislature itself, the legislation
made by such organs is called delegated legislation69’

According to M.P. Jain70, the term delegated legislation is used in two senses, thus it may mean;

(a) Exercise by a subordinate agency of the legislative power delegated to it by legislature.

The authority making the legislation is subordinate to legislature. The legislative powers are
exercised by the authority other than the legislature in exercise of the powers delegated or
conferred on them by legislature itself. This is also known as subordinate legislation, because
the powers of the authority which makes it are limited by the statute which conferred the
power and consequently, it is valid only insofar as it keeps within those limits.71
(b) The subsidiary rules themselves which are made by the subordinate authority in pursuance of
the powers conferred on it by the legislature.
In this second connotation, delegated legislation means and includes all rules, regulations, by-
laws, orders, etc.

Thus, the statute enacted by the legislature conferring the legislative power upon the executive is
known as the ‘parent Act’ or ‘primary law’ and the rules, regulations, by-laws, orders, etc. made by the
executive in pursuance of the legislative powers conferred by the legislature are known as subordinate
laws or subsidiary laws or the ‘child legislation’72

4.1 Reasons for Growth of Delegated Legislation

There are many factors which have made the growth of delegated legislation inevitable, the major
reason being the change of traditional theory of laissez faire to welfare State policy. The following are
the factors which are responsible for growth of delegated legislation as discussed by the Committee on
Ministers’ Powers;

 Pressure upon Parliamentary time

Since there have been the widening of the scope of functioning in welfare States, therefore the
legislature is not able to fulfill its duty according to time. There are a lot of issues which need
laws and since legislature cannot cater the need in details, thus the legislature formulates the
general policy, i.e. the skeleton and empowers the executive to fill in the detail.

 Technicality

69
Ibid
70
M.P. Jain: Treatise on Administrative Law, 1970, p.166
71
Basu: Administrative Law, 1996, p.65
72
C.K. Takwani: Lectures of Administrative Law, p.60

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Sometimes, the subject matter on which legislation is required is so technical in nature that the
legislator, being himself a common man cannot be expected to appreciate and legislate on the
same, and thus the assistance of experts may be required.

 Flexibility
A legislative process by legislature is not as flexible as of executive. In enactment of an Act it is
not possible for the legislature to contemplate all the contingencies, and some provision is
required to be made for these unforeseen situations demanding exigent action, whereas a
legislative amendment is a slow process rather than the delegated legislation.

 Experiment
The use of delegated legislation allow practical experiment whereas the executive would have
to employ method which permits rapid utilization of experience and implementation of
necessary changes in application of the provisions in the light of such experience.

 Emergency
In circumstance of emergency the delegated legislation is very useful method to make sure the
things run smoothly. It is very difficult to convene the meeting of legislature in every occasion of
emergency. For example in time of wars, drought, famine, national disasters, there is a need of
immediate remedial actions.

 Complexity of modern administration

In current States which are in welfare philosophy, there is tremendously increase of States’
functioning and thus made complexities in modern administration. Therefore it is necessary to
resort to delegation of legislative powers so as to give wide powers to various authorities on
suitable occasions.

4.2 Forms of Delegated Legislation

Delegated legislation may take several forms. They may be normal or of exceptional type; they may be
usual or unusual; positive or negative; skeleton or Henry VIII clause. Thus, broad speaking, delegated
legislation may be classified on the following principles73;

 Title-based classification

73
Wade: Administrative Law, 1994. P.867: Benjafield and Whitmore: Australian Administrative Law, 1966, p.116;
M.P. Jain: Treatise on Administrative Law, 1996, p.67; Massey: Administrative Law, 1995, p.67

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Here the delegated legislation may be in forms of Rules, regulations, By-laws, Notifications,
Schemes, Orders, Ordinances, Directions, etc.

 Discretion-based classification
Here, discretion may be conferred on the executive to bring an Act into operation on fulfillment
of certain conditions. Such legislation is called ‘conditional’ or ‘contingent’ legislation.

 Purpose- based classification

This classification is based on nature and extent of power conferred and purposes for which
such power can be exercised. Thus, the executive can be empowered to fix appointed day for
the Act to come into force, to supply details, to extend the provisions of the Act to other areas,
to include or to exclude operation of the Act to certain territories, persons, industries,
commodities, to suspend or to modify the provisions of the Act, etc.

 Authority-based classification
A statute may also empower the executive to delegate further powers conferred on it to its
subordinate authority. This is ‘sub-delegation’.

4.3.1 The concept of Delegated Legislation in England

In England, Parliament is supreme whereas it has the duty to enact laws. However the concept of
delegated legislation started to develop at the eve of 19th century as the role of subordinate
Government become more and more important because of the enactment of Reform Bill in the year
1832. The reason for the growth of delegated legislation as like other nations are the same, thus
parliament having no enough time to deal with matters in details, whereas complexity, technicalities,
emergency and expediency compelled the Parliament to delegate its legislative power to government.74

Moreover England witnessed the tremendous increase of delegated legislation during the two world
wars, whereas in various fields, the power to regulate was granted to government, such as housing,
education, health, pension, employment, etc. This excessive delegated legislation led to growth of
criticisms against it, and thus in 1929 the Committee on Ministers Powers’ had to study the issue and
offer suggestion, that ‘the system of delegated legislation is both legitimate and constitutionally
desirable for certain purposes, within certain limits, and under certain safeguards’75

4.3.2 The Concept of Delegated Legislation in Tanzania

A: During Colonial Period

74
C.K. Takwani: Lectures of Administrative Law, p.64
75
Committee on Ministers’ Powers Report, 1932, p.62

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After the World War I, Tanganyika was declared as protectorate territory and was supervised by British.
In 1920, the British authorities promulgate the Tanganyika Order in Council (TOC), which established the
office of Governor, Executive Council and High Court and Subordinate Courts thereto, whereas it did not
provide for an independent and separate legislative organ, this led to the Governor exercising the power
of making law in representing His/her Majesty. However, in 1926 the Governor’s legislative power was
transferred to Legislative Council (LEGICO) as established by Tanganyika (Legislative Council) Order in
Council of 1926.

Under TOC, the Executive Council (equivalent to cabinet) had following roles;

 To advice the Governor in matter of policy

 To enact, as a delegate of the Legislative Council, the greater party of subordinate legislation of
the territory.

B: After Independence

Tanzania attained her independence in 1961 and have undergone various constitutional changes,
however for the purpose of the subject matter, the latest version of constitution would be referred, thus
the Constitution of United Republic of Tanzania of 1977.

Article 4 and 64 (1) of the Constitution declares that the parliament is vested with legislative power as
to enact laws to be applicable in the United republic of Tanzania. However the Constitution also shows
the possibility of the Parliament to delegate its legislative power to other organ, or person under Article
97(5) as it states ‘the provisions of this Article or Article 64 of this Constitution shall not prevent the
Parliament from enacting laws making provisions conferring on any persons or department of
Government the power to make regulations having the force of law on any regulation made by any
person, or any department of the Government’. Also the Interpretation of Laws Act [CAP 1.R.E.2002]
provides for provisions relating to Subsidiary legislation under Part VI of the Act.

4.4 The Concept of Excessive Delegation

As it is well settled that essential and primary legislative functions must be performed by the legislature
itself and they cannot be delegated to the executive. Essential legislative functions consist of
determination of legislative policy and its formulation as a rule of conduct76. Once essential legislative
powers are exercised by the legislature, all ancillary and incidental functions can be delegated to the
executive.77 As it is also known that the parliament does not possess the legislative power as an inherent
and original power, but such power have been delegated by the constitution and thus cannot delegate
such power to other organ without reasonable grounds and proper procedure, if done without due
process such delegation would be rendered unconstitutional.

76
C.K. Takwani: Lectures of Administrative Law, p.74
77
Delhi Laws Act, Re, AIR 1951 SC 332

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However, there are sometimes the parliament can abandon its primary function of legislative power,
this is known as abdication. Abdication means abandonment of sovereignty, happens when the
legislature does not legislate and entrusts that primary function to the executive or to an outside
agency.78 Where there is abdication it amount to excessive delegation.

The question of whether there is excessive delegation or not, has to be examined in the light of three
broad principles79:-

i. Essential legislative functions to enact laws and to determine legislative policy cannot be
delegated.
ii. In the context of modern conditions and complexity of situations, it is not possible for the
legislature to envisage in detail every possibility and make provisions for them. Therefore, the
legislature has to delegate certain functions provided it lays down legislative policy.
iii. If the power is conferred on the executive in the manner which is lawful and permissible, the
delegation cannot be held to be excessive merely on the ground that the legislature could have
made more detailed provisions.

Whereas a statute challenged on the ground of excessive delegation must be subjected to two tests:-

 Whether it delegates essential legislative function; and

 Whether the legislature has enunciated its policy and principle for the guidance of the executive

4.4.1 Functions which can be Delegated (Permissible Delegation)

i. Commencement
A lot of statutes contain an ‘appointed day’ clause, which empowers the government to appoint
a day for the Act to come into force, thus in such cases, the operation of the Act depends on the
decision of the Government.

ii. Supplying details

After the legislative policy has been formulated by the legislature, the function of supplying
details may be delegated to the executive for giving effect to the policy.

iii. Inclusion
Sometimes, the legislature passes an Act and makes it applicable in the first instance, to some
areas and classes of persons, but empowers the government to extend the provisions thereof to
different territories, persons or commodities.

iv. Exclusion

78
Gwlior Rayon Silk Mfg. Co. v Asstt Commissioner, (1974) 4 SCC 98
79
C.K. Takwani: Lectures of Administrative Law, p.75-76

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There are some statutes which empower the Government to exempt from their operation
certain persons, territories, commodities, etc.

v. Suspension
Some statutes authorize the Government to suspend or relax the provisions contained therein.

vi. Application of existing laws

Some statutes confer the power on the executive to adopt and apply statutes existing in other
areas without modifications only with incidental changes to a new area. There is no
unconstitutional delegation in such cases, as the legislative policy is laid down in the statute by
the competent legislature.

vii. Modification
Sometimes, provision is made in the statute authorizing the executive to modify the existing
statute before application. This is drastic power as it amount to an amendment of the Act, which
is legislative act, but however, this flexibility is necessary to deal with local conditions.

viii. Prescribing punishments

In some cases the legislature delegates to the executive the power to take punitive action

ix. Framing of rules

A delegation of power to frame rule, by-law, regulations, etc is not unconstitutional, provided
that the rules are required to be laid before the legislature before they come into force and
provided further that the legislature has power to amend, modify or repeal them.

x. Removal of difficulties (Henry VII clause)

Power is sometimes conferred on the Government to modify the provisions of the existing
statutes for the purpose of removing difficulties. When the legislature passes as Act, it cannot
foresee all the difficulties which may arise in implementing it. Therefore the executive is
empowered to make necessary changes to remove such difficulties.

4.4.2 Functions which cannot be Delegated (Impermissible Delegation)

i. Essential legislative functions

Legislative policy must be laid down by the legislature itself and by entrusting this power to the
executive; the legislature cannot create a parallel legislature.

ii. Repeal of law

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Power to repeal a law is essentially a legislative function, and therefore, delegation of power to
the executive to repeal a law is excessive delegation and is ultra vires.

iii. Modification
Power to modify the Act is an essential legislative function; therefore, delegation of power to
modify an Act without any limitation is not permissible.

iv. Exemption
A legislature cannot delegate the power of exemption to the executive without laying down the
norms and policy for the guidance of the latter.

v. Removal of difficulties
Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a
Henry VIII clause and thereby delegate essential legislative functions to the executive, which
could not otherwise have been delegated.

vi. Retrospective operation

Giving an Act retrospective effect is essentially a legislative function and it cannot be delegated.

vii. Future Acts

The legislature can empower the executive to adopt and apply the laws existing in other
counties, but it cannot delegate the power by which the executive can adopt the laws which
may be passed in future.

viii. Ouster of jurisdiction of Courts

The legislature cannot empower the executive by which the jurisdiction of courts may be
ousted.

ix. Offences and penalty

The making of a particular act or omission into an offence and prescribing punishment for it is
an essential legislative function and cannot be delegated. However, if the legislature lays down
the standards or principles to be followed by the executive in defining an offence and provides
the limits of penalties, such delegation is permissible.

V: CONTROLS AND SAFEGUARDS OF DELEGATED LEGISLATION

5.0. Introduction.

It has to be conceded that in the present day, legislative powers can validly be delegated to the
executive within the permissible limits. However there is inherent danger of abuse of the aid power by
the executive authorities. The basic problem, therefore, it is that controlling the delegate in exercising

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his legislative powers80. Thus, today the question is not whether delegated legislation is desirable or not,
but what controls and safeguards can and ought to be introduced so that the rule – making power
conferred on the Administration is not misused or misapplied.81It has been rightly said one has to find
out a middle course between two conflicting principles; one permitting very wide powers of delegation
for practical reasons while the other that no new legislative bodies should be set up by transferring
essential legislative functions to administrative authorities.82 Thus, the control has to be introduced at
two levels; firstly, at the source, i.e. the safeguards must be provided when the legislature confers the
legislative power on the executive (done in lecture IV), secondly, some safeguards must be provided in
cases of misuse or abuse of the power by the executive (to be covered in this lecture). Controls over the
delegated legislation may be divided into three categories; thus judicial control; legislative control and
other controls.

5.1 Judicial Control

In many democratic countries it has been accepted that the courts can decide the validity or otherwise
of delegated legislation, thus delegated legislation falls within the scope of judicial review. In deciding
the validity of delegated legislation, courts do apply two tests, thus Substantive ultra vires and
Procedural ultra vires (beyond powers).

5.1.1 Substantive Ultra Vires

Substantive ultra vires happens when a subordinate legislation goes beyond what the delegate is
authorized to enact. This means that the delegated legislation goes beyond the scope of the authority
conferred on it by the parent statute or by the Constitution. It is a trite of the law that a public authority
cannot act outside the powers; i.e. ultra vires, and it has been rightly described as the central principle
and foundation of the large part of administrative law83.

Power delegated by statute is limited by its terms and subordinate to its objects. The delegate must act
in good faith, reasonably, intra vires the power granted and on relevant considerations. All the the
decisions of the administrative authority whether characterized as legislative, administrative or quasi-
judicial, must be in harmony with the Constitution and other laws of the land. They must be reasonably
related to the purposes of the enabling legislation, whereas if they are manifestly unjust or oppressive
or outrageous or directed to an unauthorized end or do not tend in some degree to the accomplishment
of the objects of delegation court might well say, ‘parliament never intended to give authority to make
such rules; they are unreasonable and ultra vires84’.

Circumstances upon which Delegated legislation can be held Ultra Vires

80
C.K. Takwani: Lectures of Administrative Law, p.101
81
Committee on Subordinate Legislation, 1954 (Third Report)
82
Delhi Laws Act, 1912
83
C.K. Takwani: Lectures of Administrative Law, p.102
84
Sitiram Sugar Mills v Union of India (1990) 3 SCC 223

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A delegated legislation may be held to be invalid on the ground of substantive ultra vires in the following
circumstances;

a) Where a Parent Act is unconstitutional

The basic requirement for the validity of delegated legislation is the status of the parent Act or enabling
statute by which legislative power is conferred on the executive authority must be valid and
constitutional. If the parent Act is held unconstitutional, then it renders the delegated legislation also to
be ultra vires. However, when the parent act is challenged on the ground that it is unconstitutional or
ultra vires the powers of the legislature which enacted it, the true nature and character of the statute is
required to be ascertained, whereas one has to regard to the enactment as a whole, to its objects and
the scope and effect of its provisions.85

In the case of Chintamanrao v State of M.P86, the parent Act authorized the Deputy Commissioner to
prohibit the manufacture of bidis in some areas during the certain periods. The order passed by the
Deputy Commissioner under the Act was held ultra vires inasmuch as the Act under which it was made
violated the Fundamental Right to carry on any occupation, trade, or business, guaranteed by Article
19(1) (g) of the Constitution of India.

b) Where delegated legislation is in consistent with the parent Act

The validity of the delegated legislation can be challenged on the ground that it is ultra vires the parent
act or enabling statute or any general law. It is an accepted principle that delegated authority must be
exercised strictly within the authority of the law and thus it can be held valid only if it confirms exactly to
the power granted.

In the case of U.S v Two Hundred of Barrels of Whisky87, The parent Act provided for admitting duty –
free animals especially imported for breeding purposes. The regulation made under the Act required the
animals to be of a superior stock if they were to be admitted duty – free. The court held the regulation
ultra vires as the parent Act included all animals while the regulation confined its operation to animals
of a particular stock alone.

c) Where delegated legislation is unconstitutional

Sometimes a parent Act or delegating statute may be constitutional and valid and delegated legislation
may be also consistent with the parent act, yet the delegated legislation may be held invalid on the
ground that it contravenes the provisions of the Constitution. Thus as it has been observed in various

85
C.K. Takwani: Lectures of Administrative Law, p.103
86
AIR 1951 SC 188: 1950 SCR 759
87
(1877) 95 US 571

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cases that every order made under a statutory provision must not only be within the authority conferred
by the statutory provision, but must also stand the test of constitutionality.88

d) Unreasonableness

In England, it is well settled that the by-laws made by corporations, boroughs and other local bodies
may be declared as ultra vires on the ground of unreasonableness. The rule is based on the presumed
intention of the legislature that the common law allows them to make only reasonable by-laws. This is
an implied limitation on the exercise of powers by such authorities, and therefore, if the power is not
reasonably exercised, the action is bad in law.

In the case of Arlidge v Islington Corporation89, a by-law made by a corporation required the landlord of
a lodging house to cause the premises to be cleansed once a year, and penalty was imposed for breach
of the said by-law. The court held the by-law ultra vires as unreasonable, as the premises might have
been leased by the landlord and he might be unable to carry out the work without committing trespass.

The principle of unreasonableness is also accepted in India as indicated in the case of Air india v
Nargesh Meerza90, a regulation framed by Air India providing for termination of services of an air
hostess on her first pregnancy was held to be extremely arbitrary, unreasonable, abhorrent to the
notion of a civilized society and interfering with the ordinary course of human nature. It is ‘not a
disability but one of the natural consequences of marriage and is an immutable characteristics of
married life’.

e) Mala fide; bad faith

In England, it is well settled that an Act passed by the competent legislature cannot be questioned in
court on the ground that the same was passed mal fide or with improper motive. Thus, once it is held
that the legislature was competent to pass such an Act, and then it is valid. On the other hand, there is
also another principle that whenever the legislature confers any legislative power on any administrative
authority, the said power must be exercised in good faith by the latter and on proof of bad faith the
court can hold the exercise of power ultra vires.

In the case of R v Controller-General of Patents91, Clauson, J, observed; ‘ if, on reading the order in
Council making the regulation, it seems in fact that it did not appear to his Majesty to be necessary or
expedient for the relevant purposes to make the regulation, I agree that, on the face of the order, it
would be inoperative’

f) Sub – delegation
(i) Sub – delegation of legislative power

88
C.K. Takwani: Lectures of Administrative Law, p.108
89
(1909) 2 KB 127
90
(1981) 4 SCC 335
91
(1941) 2 KB 306

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The maxim ‘delegatus non potest delegare’ (a delegate cannot further delegate) applies to
delegated legislation and also it is not possible for the delegate to sub – delegate the power
conferred on him unless the parent Act authorizes him to do so either expressly or by necessary
implication92. Therefore there are some limitations and safeguards where the parent Act have
permitted sub – delegation.
 If the parent Act permits sub – delegation to officers or authorities not below a
particular rank, then the power can be delegated only to those officers or authorities.
 The sub – delegate cannot act beyond the power conferred on him by the delegate.
 If some conditions are imposed by the delegate which must be complied with by the sub
– delegate before the exercise of power, those conditions must be fulfilled; otherwise
exercise of power will be ultra vires.

(ii) Sub – delegation of judicial power

It is well established in various jurisdictions that judicial or quasi – judicial power conferred on a
particular authority by statute must be exercised by that authority and cannot be delegated to
any one unless such delegation is authorized by a statute either expressly or impliedly. The
maxim ‘delegatus non potest delegare’ is applied with utmost rigour to proceedings of the
ordinary courts, and in the entire process of adjudication a judge must act personally, except
insofar as he is expressly absolved from his duty by statute, whereas only in very exceptional
circumstances may judicial functions be sub – delegated in the absence of express
authorization.93

In the case of Morgan (I) v U.S94, the Supreme Court of America held that the duty to decide
cannot be performed by one who has not considered evidence or arguments. It is not an
impersonal obligation. It is a kin to that of a judge. The one who decides must hear.

g) Exclusion of judicial review

There have been tendency of legislators to allow the delegate legislation to be free from judicial review
by enacting ouster clauses, such as ‘shall have effect as if enacted in the Act’ , ‘shall be conclusive
evidence’, ‘shall not be called in question in any court’, ‘shall not be called in question in any legal
proceedings whatsoever’ and the like. However in many jurisdictions this contention have been
challenged by the courts of laws thus judicial review is important way in safeguarding and controlling
the powers of administrative authorities.

h) Retrospective effect

92
C.K. Takwani: Lectures of Administrative Law, p.113
93
De Smith: judicial Review of administrative Action, 1995
94
(1936) 298 US 468

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It is well settled that delegated legislation cannot have any retrospective effect unless such a power is
conferred on the rule - making authority by the parent Act. The legislature can always legislate
prospectively as well as retrospectively subject to the provisions of the Constitution. Though the
legislature is allowed to enact laws which have retrospective effect, such power is limited in procedural
laws only and not substantive laws which creates rights and liabilities. Refer Article 13(6)(c) of United
Republic of Tanzania Constitution of 1977 as amended.

Effect of substantive ultra vires act:

An action which is ultra vires is without jurisdiction, null and void, and of no legal effect whatsoever.
Therefore once the court has declared that some administrative act is legally a nullity, the situation is as
if nothing had happened, thus there is no question of estoppels against an ultra vires act95.

CASES

Kanji v Tanga Township Council 1940 Vol.1 TLR

The accused owned a house which was situated at the corner of Akida and No. 6 Street in the Township
of Tanga. On the 12th June 1939 some old papers were found in the street outside his house. He pleaded
not guilty to a charge under rule 25 of the Township rules made under S.3 of township Ordinance
(Cap.29) which said

“No person shall know or deposit…. In or upon any street…dust refuse…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”

The accused was convicted on such rule, however on appeal the conviction was quashed and set aside
whereas the statute was declared unreasonable and ultra vires as it abrogated the presumption of
innocence by declaring a person guilty.

R v Wood

The parent Act authorized the making of the by-laws requiring the residents to remove; dust, dung,
ashes, filth garbage’s from the pavement. A by – law was made requiring the residents to remove filth,
rubbish, manure, dung and also it included removal of snow which was not provided in the parent Act.
The by-law was said to be invalid.

Sheikh Mohamed nassoro Abdallah v Dar es Salaam RPC [1995] TLR

The case concerned a deportation order signed by the president ordering deportation of the plaintiff in
Zanzibar. While in the process if being deported, he was detained and he filled the matter before the
court. The court on looking on the Deportation Ordinance saw that it provided only deportation within
Tanganyika (Tanzania Mainland). Therefore deportation to Zanzibar was said to be ultra vires. The

95
C.K. Takwani: Lectures of Administrative Law, p.120

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amendment of Deportation Ordinance was made in 1995 to involve the whole part of Tanzania including
Tanzania Zanzibar.

R v Kimani

There was a parent Act which provided for punishment which could be provided by the by-law and
punishment was to be fines and imprisonment. The by-law formed said that there shall be fine or
imprisonment or both and also said that any native convicted under the by-law on fine and
imprisonment and if a person who fail to comply with order to return to his native place was to be
imprisoned for other 3 months. The court held that the by-law was ultra vires.

R v Juma Mwalimu

The parent Act gave power to the Governor to make laws relating to payment of poll taxes and hut taxes
by the natives. The Governor was given power to make the rules on duties and responsibilities of the
Chiefs and headmen. It went further to make rules on every individual to provide information for
truthfully collection of taxes and ascertainment of where about of tax payers. The court found that the
rule was ultra vires.

R v Mabula Mihambo [1984] TLR 89

The accused person stood before District Court, charged under the provision of S.20 and 25 and 26 of
the Regulations of Prices Act, 1973. The charge that provocated , and hence the revision was strangely
worded as follows.. the Bunda District Assistant Price Commissioner was empowered to fix price under
empowering provisions of S.79 and 10 of the Regulation of Prices Act, 1973. Accused pleaded guilty and
convicted. The charge read as follows… selling fish exceeding aggregated maximum price contrary to
S.20 and 26 of the Price Regulation Act, No 19 of 1973. The issue before revision was whether the
charge disclosed any offence. Considering the word ‘aggregated price’ the Judge failed to understand
what was meant by it. The Judge went further to say that the Commissioner was empowered to fix
maximum price for sell of goods…S.8(1) of the enabling Act and not aggregated prices, because of the
difference he said that no offence was committed. Moreover, the court considered price list as follows;
Ngege (a)Mkubwa (Kigoma)sh.15.00 (b) Kawaida.sh10.00 (c)Mdogo.sh.5.00

Held: because the size of the fish in question was ambiguous and there was no offence created as
aggregated price . The court quashed the conviction.

Remtula Gulamali v Rex. 1936 Vol 1 TLR (R).

R v Lois Herman

5.1.2 Procedural Ultra Vires

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Procedural ultra vires happens when a subordinate legislation fails to comply with certain procedural
requirements prescribed by the parent Act or by the general laws. The delegated legislative authority
while making the delegated legislation, the parent Act may require that the delegate to observe a
prescribed procedure, such as holding of consultations with particular bodies or interest, publication of
draft rules or by-laws, laying them before the Parliament, etc. therefore it is important on the delegate
to comply with these procedural requirements whereby failure may invalidate the rules framed.96

Categories of procedural requirements

A: Publication

It means all due procedure which the law is made known of its existence to the public. It is an act of
declaring or announcing the existence of law to the public. There is fundamental principle of law that
‘ignorance of law has no excuse’, but there is another equally established principle that ‘public must
have access to the law and they should be given an opportunity to know the law’.97 Wade98 said that
‘the very justification for the basic maxim is that the whole of our law, written or unwritten, is accessible
to the public – in the sense, of course, at any rate, its legal advisers have access to it, at any moment, as
of right.’ Thus all laws ought either to be known or at least laid open to the knowledge of all the world in
such a manner, that no one may with impunity offend against them, under pretence of ignorance.99
Thus the underlying object of publication of delegated legislations as observed by M.P.Jain that ‘it is
essential, therefore, that adequate means are adopted to publicize delegated legislation so that people
are not caught on the wrong foot in ignorance of the rules applicable to them in a given situation. The
system of publication ought to be such that delegated legislation is not only made known to the people,
but it is also easy to locate as and when necessary’.100

In England, through the Rules Publication Act, 1893 certain provisions were made for the giving of notice
and inviting representations from interested public bodies. Moreover under the Statutory Instruments
Act, 1964, certain provisions were made with a view to ensure that the public would be aware of the
delegated legislation.

In Johnson v Sargant101, the impugned order was passed on May 16, but was published on may 17. The
court held that the order could come into operation only on May 17.

In Tanzania, the practice of publication aspect is that the court would examine the parent Act if gave
direction for such subsidiary legislation to be published. If there is no express provision that direct such
publication, then the Interpretation Act [CAP.1.R.E.2002] come into play. Section 37 (1) (a)(b) provides
that

96
C.K. Takwani: Lectures of Administrative Law, p.121
97
Ibid
98
Administrative Law; 1994, p.890
99
Domat: Quoted by Ganguly: Administrative Legislation, 1968, p.74
100
Treatise on Administrative Law, 1996. Vol 1, p.150
101
(1918) 1 KB 101.

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Where a written law confers power to make subsidiary legislation, all subsidiary
legislation made under that power shall, unless the contrary intention appears–

(a) be published in the Gazette;

(b) subject to subsection (2) and to section 39, come into operation on the
day of publication, or where another day is specified or provided for in the subsidiary
legislation, on that day.

B: Consultation

The term consult implies a conference of two or more persons or an impact of two or more minds in
respect of a topic in order to enable them to evolve a correct, or at least satisfactory solution of a
problem. It is a process which requires meeting of minds between the parties to consultation on
material facts to come to a right conclusion.102

The rationale behind of using consultation technique is to safeguard against the misuse of power vested
to the executive on rule making by allowing the affected interests to participate. Consultation is one of
the ways of avoiding clashes between the department exercising legislative power and the interested
parties who are going to be affected by the said law.103the process of consultation helps in a way that,
the affected interests itself insofar as they have an opportunity to impress on the authority their point of
view; and the rule-making authority insofar as it can gather necessary information regarding the issue
involved and thus be in a better position to appreciate a particular situation.104 However, it is important
to note that consultation does not mean consent or concurrence, but it postulates full and effective
deliberation, exchange of mutual view points, and meeting of minds and examination of relative merits
of the other point of view.

In England, though there is no statutory provision requiring consultation of the affected interests before
the making of subordinate legislation, it is still considered mandatory. This practice is well established
the ‘Minister in his senses, with the fear of Parliament before his eyes would ever think of making
regulations without giving the persons who will be affected thereby or their representatives an
opportunity of saying what they think about the proposal’105

In the case of Rollo v Minister of Town and Country Planning106, holding the consultation as an
important statutory obligation, Bucknill, L.J observed: “On one side the Minister must supply sufficient
information to the local authority to enable them to tender advice, and on the other hand, a sufficient
opportunity must be given to the local authority to tender that advice”

102
C.K. Takwani: Lectures of Administrative Law, p.128
103
Wade and Phillips: Constitutional Law.1960.p.584
104
C.K. Takwani: Lectures of Administrative Law, p.128
105
Sir W. Graham cited by Griffith: Delegated Legislation, Some Recent Developments, (19490 12 Mod LR 297
106
(1948) 1 All ER 13 (17)

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In Tanzania also, the requirement of consultation to the stake holders is of necessity in making of
subsidiary legislation. Thus, the parent Act may provide that the maker of by-law will have to take
account the views and objection of the people.

5.2 Legislative Control

In a parliamentary democracy it is the function of the legislature to legislate. If it seeks to delegate its
legislative power to the Executive because of some reasons, it is not only the right of the Legislature, but
also its obligation, as principal, to see how its agent carries out agency entrusted to it. Since it is the
legislature which grants legislative power to the Administration, it is primarily its responsibility to ensure
the proper exercise of delegated legislative power, to supervise and control the actual exercise of this
power, and ensure against the danger of its objectionable, abusive and unwarranted use by the
administration.107 Therefore as it is open for the parliament to confer its legislative power to any
authority, thus also it must see those powers are properly exercised.

The object of legislative control over delegated legislation is to keep watch over the rule-making
authorities and also to provide an opportunity to criticize them if there is abuse of power on their part108

Modes of Legislative Control; there are two modes upon which legislative control can be effectively
exercised, thus Laying on Table and Scrutiny Committees.

5.2.1 Laying on Table

The procedure of laying on the table is followed by most of the Commonwealth countries whereas it
serves two purposes;

 It informs the legislature as to what rules have been made by the executive authorities in
exercise of delegated legislative power
 It provides an opportunity to the legislators to question or challenge the rules already made or
proposed to be made.

The practice in Tanzania

The parent Act may direct the making of subsidiary legislation and sometimes the parent Act may
require the subsidiary legislation to be laid before the national Assembly. However the parent Act does
not say what have to be done by the national Assembly when the subsidiary legislation is laid before the
Assembly, thus the National Assembly is allowed to pass any motion as regard to the said subsidiary
legislation. The effect is that the instrument after being made it must be laid before the National
Assembly and become effective after being laid before the National Assembly. When the subsidiary
legislation is laid before the National Assembly the National Assembly will not amend the subsidiary
legislation but it will go on declaring it null and void if it finds it to be so. The Parliament does not amend

107
M.P.Jain: Treatise on Administrative Law, 1996. Vol 1, p.136
108
Lohia Machines Ltd v Union of India (1985) 2SCC 197

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subsidiary legislation simply because it does not enact subsidiary legislation. Thus, the parliament may
either accept it or struck it out.

5.2.2 Scrutiny Committees

Subjecting the subsidiary legislation to parliamentary committee is of more importance than even laying
on the table, thus mere laying of rules before the Parliament would not be of much use, unless the rules
were properly studied and scrutinized. In England, the Select Committee on Statutory Instruments was
established by the House of Commons in 1944. The function of the Committee is to scrutinize and report
to the Parliament whether the powers to make regulations, rules, sub-rules, by-laws, etc., conferred by
the Constitution or delegated by Parliament are being properly exercised within such delegation.109

VI: RULES OF NATURAL JUSTICE

6.0. Introduction

The rule of natural justice is most important concept in Administrative Law. These principles of natural
justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in
any code. It is one of great humanizing principle intended to invest law with fairness, to secure justice
and to prevent miscarriage of justice.110These rules address how judicial, administrative and other
organs are to function in the process of reaching a fair decision in determination of any issue before
them. They are an integral part of the doctrine of rule of law.111 The rules of natural justice are better
known than describe and easier proclaimed than defined.

The rules of natural justice can be traced as far as the history of man started on earth. On referring the
Holy Book, thus Bible the scene of Adam and Eve is a good example of tracing the origin of principle of
natural justice. It is settled law that the rules of natural justice are binding on all courts, judicial bodies
and quasi-judicial authorities.

6.1. Principles of Natural Justice

Over the years there have been two principles of natural justice recognized and observed, however the
current trend in various jurisdiction have added another limb on rules of natural justice, thus the third
principle. These principles are;

 That, no man shall be a judge in his own cause, or the deciding authority must be impartial and
without bias (Nemo debet esse judex in propria causa)
 Hear the other side, or both the sides must be head or no man should be condemned unheard
or there must be fairness on the part of the deciding authority (Audi alteram paterm)
 The right to know the reason for a decision (Nullum arbitrium sine rationibus)

109
C.K. Takwani: Lectures of Administrative Law, p.137
110
C.K. Takwani: Lectures of Administrative Law, p.143
111
C.P. Maina, p.426

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6.1.1. The Rule against Bias

This is the first principle of natural justice which is based on three maxims thus;

 That, no man shall be a judge of his own cause112

 That, justice should not only be done, but manifestly and undoubtedly be seen to be done113
 That, judges like Caesar’s wife should be above suspicion114

Bias means the influence of anything which tends or may be regarded as tending to cause a person to
decide a case otherwise than on evidence.115

This rule means that a judge should be impartial and a neutral and must be free from bias. The judge is
supposed to be indifferent to the parties to the controversy and cannot judge in a cause in which he has
some interest upon it. One of the foundations of this principle is the statement of Chief Justice Coke as
far back as 1610 in the case of Dr. Bonham116 whereas in this case the College Physicians wanted to fine
and imprison Dr. Bonham of Cambridge University for practicing in the city of London without a licence
from the College of Physicians. The law under which the College based its authority provided inter alia,
that proceeds from the fine should be divided with one half going to the King and the other half to the
College had financial interest in its own judgment and therefore it was a judge in its own cause.

There are three broad categories of bias which can lead to the disqualification of a decision – maker.
These are pecuniary interest in the subject matter of the litigation; personal interest such as close
relationship or kindred and official bias.

(i) Pecuniary interest

It is well-settled that as regards pecuniary interest as in the case of R v Farrant117 by
Stephen J that ‘the least pecuniary interest in the subject-matter of the litigation will
disqualify any person from acting as a Judge’. Pecuniary interest, however slight, will
disqualify, even though it is not proved that the decision is in any way affected118’

(ii) Personal bias

There are number of circumstances which may give rise to personal bias, such as a judge
may be a relative, friend or business associate of a party or he may have personal grudge,
enmity or grievance or professional rivalry against one of the party. Therefore, there is every
likelihood the judge may be biased toward one party or prejudiced towards the other.119 In
this respect it is important to show that a real likelihood of bias exists. This is because justice

112
Lord Coke in Egerton v Lord Derby (1613) 12 Co. Rep 11
113
Lord Hewert in R v Sussex Justices (1924) 1KB 256
114
Justice Bowen in Lesson v General Council (1889) 43 Ch D 366
115
Concise Oxford Dictionary (1995)
116
(1610) Co. Rep.113b
117
[1887] 20 Q.B. 58
118 th
Griffith and Street: Principles of Administrative Law, 4 Edition, p.156
119
Ibid

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should not only be done, but should manifestly and undoubtedly be seen to be done. This
was emphasized by Lord Hewert in the case of R v Sussex Justices ex parte
McCarthy.120However it is important to ensure that this does not lead to the wrong
impression that it is more important that justice should appear to be done than it should in
fact be done. Therefore, what is vital and central in this situation is that the judge should not
hear the evidence of one side behind the back of the other.121
In the case of Mwangi v Tusker122, the appellant submitted a tender for a business and was
awarded. Later it turned out that the firm which was given a tender was not the one which
tendered the lowest bid i.e.it is not a must to accept the lowest bidder. But it was found that
two tender board members were the owners of some interest in the firm. It was held that
the award of tender was not proper as the members were part to the firm.

(iii) Official bias

This may arise when the judge has a general interest in the subject-matter. However, only
rarely this bias would invalidate the proceedings.123 A mere general interest in the general
object to be pursued would not disqualify a judge from deciding the matter; there must be
some direct connection with the litigation. Ministerial or departmental policy cannot be
regarded as a disqualifying bias. Suppose a Minister is empowered to frame a scheme after
hearing the objections, the procedure for hearing the objections is subject to the principles
of natural justice insofar as they require a fair hearing, but the Minister decision cannot be
impugned on the ground that he has advocated the scheme or he is known to support it as a
matter of policy.124

Other Cases on bias

Ndegwa v Nairobi Liquor Licencing Court125
The president of that court (tribunal) and two other members visited and investigated the
premises of Ndegwa and they were not impressed with the situation. Therefore, they made
a motion that the licence be cancelled. During hearing also they gave evidence that the
place was suitable, thus decision was made against Ndegwa and he appealed to the High
Court. It was held that the two members constituted prosecutors, witnesses and judges, it
was said it amount to bias thus the decision was invalid.

R v Bancley Metropolitan Borough Council

Mr. Hook was a pet trader in Bancley market. One day after market time while people were
cleaning the market, Mr. Hook while going away he urinated in the premises of market and

120
(1924) 1KB 256
121
C.P. Maina, p.427
122
[1971] E.A 385
123 th
Griffith and Street: Principles of Administrative Law, 4 Edition, p.156
124
Wade: Administrative Law, 1994, pp.488-491
125
Oluyede, p.100

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the market manager saw him and warned him but he did not obey. The manager reported
him to the market Disciplinary Committee where he was called and subsequently his licence
cancelled. He appealed to the High Court on the ground that the Committee was biased as
the market Manager was sitting with the Committee while deliberating on the decision.
Although the manger did not say anything, but the court went on saying that it was
sufficient to invalidate the decision.

R v Kent Police Authority exparte Golden

The police officer, Golden who went to see a Doctor, the Doctor reported that Golden had a
mental disorder making him unfit to work as a police officer. After getting the information
the Police Authority decided to take some measures for terminating Golden. The police
registration rules provided that for a person to be compulsory terminated a person has to
be bought before the Doctor who will make appropriate certification. But the former report
was not in the form of certification. The Authority took the form and gave it to golden so
that he can submit it to the same Doctor, whereby Golden rejected that the Doctor would
be bias. Golden appealed to the Court where it was held that the Doctor would be bias
hence Golden would have been referred to other Doctor.

6.1.2. The Right to be heard

This is the second principle of natural justice, also known as hear the other side principle. This principle
is explained that no man should be condemned unheard, or both sides must be heard before passing
any order. According to de Smith, that ‘no proposition can be more clearly established than that a man
cannot incur loss of liberty or property for an offence by a judicial proceeding until he has had a fair
opportunity of answering the case against him126’. Basically the right to be heard has been embodied
into two limbs, thus notice and hearing.

(i) Notice
Before any action is taken, the affected party must be given a notice to show cause against
the proposed action and seek his explanation. It is a sine quo non of the right of fair
hearing127. The person should be adequately briefed of the case facing him, this is important
for the purposes of arming the accused properly as he can only effectively controvert that
which he is aware of. Also, he can only conduct a meaningful cross-examination of witnesses
deposing against him if he has access to everything against him128. Therefore, any order
passed without giving notice is against the principles of natural justice and is void abinitio.

(ii) Hearing

126
De Smith: Judicial Review of Administrative Action, 1995, p.380
127
C.K. Takwani: Lectures of Administrative Law, p.159
128
C.P.Maina, p.428

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This is the second limb of the principle of right to be heard, whereby the person should be
given the right to face his accusers. Therefore, tribunal trying to ascertain facts in a matter
before it and 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 or contradicting any
relevant statement prejudicial in their view129. Also in the case of Local Government Board v
Arlige130, Lord Haldane stated that ‘those whose duty is to decide… 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 decision must be…in
the spirit and with the sense of responsibility of a tribunal whose duty is to mete out
justice’.
However, it should be noted that the right to be heard does not necessarily mean that there
must be an oral or personal hearing; the hearing can be also in the form of representation
and through writing. Moreover, the right of representation by a lawyer is not considered to
be part of natural justice and it can not be claimed as a right. However the practice direct
that if a person is willing to be represented and afford such representation he should not be
denied such right as observed by C.K. Allen that ‘experience has taught me that to deny
persons who are unable to express themselves the services of a competent spokesman is a
very mistaken kindness131’. Also in the case of Pett v Greyhound Racing Assn (I), Lord
Denning observed that ‘when a man’s reputation or livelihood is at stake, he not only has a
right to speak by hi own mouth. He has also a right to speak by a counsel or solicitor132…
even a prisoner can have his friend133’.

6.1.3 The right to know the reason for a decision (speaking orders)

Speaking order means the order speaking for itself, thus every order must contain reasons in support of
it. It is not enough to have a tribunal which is not biased and for the person whose rights or legitimate
expectations may be affected by the decision of that tribunal to be afforded opportunity to controvert
adverse testimony against him, thus it is now established that the tribunal has a duty to furnish the
accused with the reasons for the decision reached134. The object of providing reasons for decision as
observed by Flick that ‘reasons are valuable check on both the exercise of formal and informal decision-
making. They provide the means whereby a party is appraise of why a decision has been made and they
provide some guidance to those who have to advise the public as to the attitudes of the
administration’135. Therefore, the right of the accused to know the result of the inquiry and the reasons
for the decision has now become the third principle of the rules of natural justice.

129
Lord Loreburn in Board of Educaton v Rice and Others [1911] A.C.179
130
[1915] A.C.120
131
C.K.Allen: Administrative Jurisdiction, 1956, p.79
133
(1968) 2 All ER 545
134
C.P. Maina, p.429
135
Flick, Geofrey, Natural Justice: Principles and Practical Application, p.111

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The position in England as regard to right to know reason for decision there is no general rule of English
law that reasons must be given for administrative or even judicial decisions136. However, Lord Denning
once said that in the case of Breen v Amalgamated Engg. Union137 ‘the giving of reasons is one of the
fundamentals of good administration’. Thus, the condition to record reasons introduces clarity and
excludes arbitrariness and satisfies the party concerned against whom the order is passed138.

This third limb of rules of natural justice is a new development of administrative law, whereby the old
view was that once the tribunal has met the two main requirements of natural justice then it had no
duty to give the reasons for its decision. It was said that to insist that administrative adjudication should
be accompanied by a formulation of reasons is to require of the administrative process a higher
standard than the demanded of the courts of law139. However the new position seems to have begun
with the dissenting judgment of Lord Denning, M.R. in Breen v Amalgamated Engg Union where he said
that, ‘reasons must be given whenever it is fair to do so. Not always, but sometimes. It all depends on
what is fair in the circumstance’.

Also in the case of R v Immigration Appeals tribunal ex parte Khan (Mahmud)140, Lord Lane, C.J
indicated that ‘a party appearing before a tribunal is entitled to know…what is to which the tribunal is
addressing its mind…second, the appellant is entitled to know the basis of fact of which the conclusion
has been reached…’

6.2. Rules of Natural Justice in Tanzania

Formally, the rules of natural justice were introduced in the Constitution of United Republic of Tanzania
through the Bill of Rights of 1984. Article 13 (6) (a) of Constitution provides that;

`For the purposes of ensuring equality before the law, the State shall make provisions to the effect that,

When the rights and duties of any person are being determined by the court of law or any other body,
such a person shall have the right to be fairly heard and shall have the right to appeal against the
decision of the court of such other body`

However, even before the incorporation of the Bill of the Rights into the Constitution the courts of law
had developed a tradition of applying these rules as done elsewhere under the common law system and
particularly through case law141. The following cases are examples which demonstrated the application
of rules of natural justice in determination of cases by the High Court, Court of Appeal of East Africa and
the Court of Appeal of Tanzania.

136
De Smith: Judicial Review of Administrative Action, 1995, p.380
137
(1971) 1 All ER 1148
138
C.K. Takwani: Lectures of Administrative Law, p.171
139
Flick, Geofrey, Natural Justice: Principles and Practical Application, p.86
140
[1983] All E.R 420
141
C.P. Maina, p.431

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Hypolito Cassiano De Souza v Chairman and Members of the Tanga Town Council142
Appellant was employed by Tanga Town Council as a fire master. The allegation against De Souza was
that an employee was seen at his premises appearing as if he was assigned to work for the fire master
contrary to the work of the Town. The two Councillors reported the matter to the Committee. At a
hearing before the Finance Committee, the appellant and his Advocate were kept out for some time
while the Committee held private discussions with the two complainants who were present, although
they were not members of the Committee. The nature of discussion held was never disclosed to the
appellant and Advocate. Also when the hearing commenced appellant and his Advocate were not
provided with the particulars of the charges against him. The Committee recommended that the
appellant be dismissed from work. The appellant appealed to the High Court for writs of certiorari and
mandamus for the decision of the Committee be quashed as against principles of natural justice. The
High Court rejected the appeal on the ground that the quasi-judicial bodies have no duty to observe the
principles of natural justice. The appellant appealed to the East African Court of Appeal, whereby the
court directed that the writ of certiorari be granted to bring up and quash the decision of the appeals
committee and the decision of the Council dismissing the appellant. In addition, the court directed that
mandamus be granted addressed to the Chairman and members of the Tanga Town council to cause to
be heard and determined the complaint against the appellant in accordance with the provisions of the
Staff Regulations and the principles of natural justice. Giving guidance on the application of the rules of
natural justice, the court indicated that;
(i) The person accused must know the nature of accusation made against him
(ii) A fair opportunity must be given to those who are parties to the controversy to contradict
any statement prejudicial to their view, and to make any relevant statement they may
desire to bring forward; and
(iii) The tribunal should see that a matter which has come into existence for the purposes of
proceedings is made available to both sides and, once the proceedings have started, if the
tribunal receives a communication for one party or from a third party, it should give the
other party any opportunity of commenting on it.

Re An Application by Bukoba Gymkhana Club143

A Liquor Licensing Board refused to renew the applicant’s liquoir licence on the ground that its
constitution was ‘still largerly 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 the 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. Granting the application Reid J held that ‘the Board being a body of persons
having legal authority to determine questions affecting the rights of subjects it has the duty to act
judicially and that no opportunity was given to the licence applicants to present their case or to meet

142
(1961) E.A 377
143
[1963] E.A 478 (Tanganyika)

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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’.

Mahona v University of Dar es Salaam144

The applicant in this case was terminated from the employment by the defendant on disciplinary
grounds. He appealed to the Labour Concilliation Board and was successful. The defendant appealled to
the Minister for Labour. The applicant was not supplied with a copy of the memorandum of appeal
submitted by the defendant nor was he given the opportunity to be heard by the Minister before
making the decision. The Minister reversed the decision of the Labour Concilliation Board and ordered
the applicant to be paid his terminal benefits. The applicant went to the High Court challenging his
termination and seeking a declaration that his termination was invalid as the procedure laid down under
both the University of Dar es Salaam Act, No.12 of 1970 and the Security of Employment Act, 1964 were
not followed. Agreeing with the applicant, Kisanga, J. held that there was breach of the rules of natural
justice as the ground of appeal by the deffendant were not made known to the plaintiff by the Minister
and the same Minister proceeded to determine the appeal without hearing the applicant. The judge
underlined the importance of the rules of natural justice and indicated that non adherance of the rules
renders the decision made null and void.

Moreover, the courts of law have gone further to introduce the third limb in the rules of natural justice.
That is the right of the affected person to be given the reasons for the decision made or in other words,
the duty of decision maker to provide reasons or grounds for his decision145.

James F. Gwagilo v AG146

This case was on alleged powers of the President of the United Republic of Tanzania to retire civil
servants in ‘public interest’. It was inter alia, held that by Mwalusanya, J. the President had a duty to
give reasons for this decision and he can not act arbitrarily. Also this view was taken by Samatta, J.K. in
Said Juma Muslim Shekimweri v AG147 where again the President purpoted to retire an Immigration
Officer in public interest without giving any reasons. Distinguishing the common law authorities which
held that civil servants could be dismissed at the pleasure of the Crown. His Lordship held that was not
part of the law of this country. When a civil servant is dismissed cause must be assigned.

6.3. Exclusion of Natural Justice

Though the rules of natural justice have now a definite meaning and connotation in law, and their
content and implications are well-understood and firmly established, they are nonetheless not statutory
rules. Therefore, there are situations which demand the exclusion of the rules of natural justice by

144
[1981] T.L.R.55
145
C.P. Maina, p.433
146
High Court of Tanzania at Dodoma, Civil Case No.23 of 1993 (Unreported)
147
High Court of tanzania at Dar es Salaam, Miscellaneous Civil Cause No.3 of 1996 (Unreported)

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reason of diverse factors like, time, place, the apprehended danger and so on148. Thus, the following are
the circumstances upon which the rules of natural justice can not be applied;

a. Statutory disapplication
This happens only when there is a procedure stipulated in a Statute on dealing with a certain
case, thus the rules of natural justice do not apply but the statutory procedures have to be
followed.
Franklin v The Minister for Town & Country Planning149
In this case the Minister followed the procedure in the Town Act which required, whereas he
was required to receive objections of the people affected by the designation of the town. He
sent the proposal and objections were sent back by the people. The people challenged his
decision on the ground of bias as in his previous meeting he said that he will do anything to
make sure that the town is designated, and thus they alleged that he did not consider the
objections with an open mind. The Court dismissed the application as the Minister had already
followed the procedure.

b. Legislative process
The Parliament and Administrative Authorities makes laws, but these bodies are not required to
make consultation unless the law provides for that effect. For instance the making of laws to be
applicable in Local Government, the issue of calling objections is just an exception but generally
it is not mandatory.

c. Waiver
This refer the right which has to be exercised but a person to benefit from it denies such right.
For example is a person is given a right to be heard but he decided not to speak. In criminal
cases, a person who is called to plead but remains quiet the Court enters a plea of not guilty or a
person refusing to give evidence in a case a negative inference can be drawn against him.

d. Initiating procedure
These are procedures of preliminary nature where the determination of the issue can not be
relied on. For example during the investigation, committal proceedings or suspention from work
in labour relations. However, there is an exception to the rule whereby to some of the initiating
procedure the rules of natural justice must be adhered
Munuo Ng’uni v Judge in Charge and Another
This case involved the assignment of dock breaf, whereby a judge assigned the dock brief to the
Advocate who had to represent a person in a Criminal Aid, but Munuo rejected the assignement
and consequently his practice licence was suspended by the Judge in Charge. The Court said that
when the persons right is to be affected a person must be given a right to be heard.

148
C.K. Takwani: Lectures of Administrative Law, p.185
149
[1948] AC 87

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e. Necessity
This is applied so as to see the conclusion of cases. For example where a person does not appear
during hearing and the court has been adjourning the case for a period of time, then upon
appearing such person can not claim for further adjournments.
Masumbuko Rashid v R150
The adjournment was sought for the sake of engaging an Advocate and the court rejected it. The
appellant being charged before the court for criminal offences, they appeared before the
District Court on 26th December 1985 and entered a plea of not guilty. They made no request
whatsoever. On 8th January 1986, the case came up for hearing. It was then the four accussed
persons told the court that they wanted to engage an Advocate. The case was adjourned. The
following date the accussed repeated their request, but the learned Magistrate ruled that the
case should proceed and the charge be read over to them, at that time the accused persons left
the dock in protest.

150
[1986] TLR

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VII: ADMINISTRATIVE TRIBUNALS

7.0. Introduction

As discussed in previous lectures, concerning the increase of executive functions as to include quasi –
legislative and quasi – judicial functions. This is due to the change of role of State philosophy thus from
laissez faire to welfare. To date the State not only exercises soverign functions, but as progressive
democratic State, it seeks to ensure social security and social welfare of the common masses by
regulating productions, industrial relations and starts many enterprises. In this role of the State there
issues arising from such complexity whereas they are not only purely legal issues and therefore it is not
possible for the ordinary courts to deal with all these socio – economic problems, hence the
introduction of administrative tribunals so as to decide various quasi – judicial issues in place of ordinary
courts151.

7.1 Meaning and Function of Administrative Tribunals

It is quiet difficult task to define the word tribunal precisely, but according to Webster152, tribunal means
‘a seat or a Bench upon which a Judge or Judges sit in a court’, ‘a court of justice’. But this meaning is
very wide as it includes even ordinary courts of law, whereas, in administrative law this expression is
limited to adjudicating authorities other than the ordinary courts of law. Therefore, a tribunal can be
defined as an adjudicating body which decides controversies between the parties and exercises judicial
powers as distinguished from purely administrative functions and thus possesses some of the trappings
of the court, but not all.

A tribunal is a person or persons appointed to adjudicate or arbitrate on some disputed questions or

matters. Tribunals are created by statutes which specify their functions and powers and are designed to
be part of some scheme of administration. Tribunals exist in order to provide simple, cheap, and spider
and more accessible justice than the ordinary courts do.

Tribunals are bodies outside the hierarchy of the judiciary which exercises quasi – judicial or
adjudicatory functions given to them by various enabling laws. Administrative tribunals takes many

151
C.K. Takwani: Lectures of Administrative Law, p.193
152
Webster New World Dictionary, 1972, p.1517

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forms. They differ in their composition, power and functions depending entirely on their subject matter
and ultimate aims and objectives. They hear complaints by aggrieved persons against the administrative
body. They are normally a creature of statute, that is they are created by law. They slightly differ from
normal courts in that the observance of rules of procedure is not much emphasized and the chairman of
the tribunal need not necessarily be a lawyer.

Tribunals are deemed to be independent in performing their functions i.e. to be free from external
influence. The tribunal members varies in accordance with the character of the task facing them. In their
business of adjudication, they have to hear the parties and later give their decisions in accordance with
the statutory laid – down procedure. Any party aggrieved by the decision of the tribunal may appeal to
the superior authority. The general rule is that there is no right to appeal unless provided in a statute.
Where an administrative tribunal acts within its authority or power, there is no need for any review. The
issues of review or appeal arises when the actions of the tribunal becomes ultra vires.

7.1.1 Administrative Tribunals: Misnomer

According to Wade153, the expression ‘administrative tribunal’ is misleading and thus suggestion is made
that it is better to designate these bodies as ‘tribunals’ by deleting the word ‘administrative’ as per
following reasons;

 Firstly, every tribunal is constituted by an Act of the Parliament and not by Government
(Executive)
 Secondly, decisions of such tribunals are judicial rather than administrative. A tribunal reaches a
finding of fact, applies law to such fact and decide legal questions objectively and not on the
basis of the executive policy
 Thirdly, all tribunals do not deal with cases on which the Government is a party. Some tribunals
adjudicate disputes between two private parties, e.g. landlord and tenant or employer and
employees
 Finally, such tribunals are independent. They are in no way subject to administrative
interference as to how they decide any particular case.

7.2 Reasons for Creation of Tribunals

The existence of tribunals outside the Court system have its history in the English legal system and
gained momentum in the 20th Century. Thus the following are the reasons;

(i) The traditional judicial system proved inadequate to decide and settle all the disputes
requiring resolution. It was slow, costly, inexpert, complex and formalistic. It was already
overburdened, and it was not possible to expect speedy disposal of even very important
matters; e.g. disputes in labour relations as lock-out, strikes etc. These kind of disputes
cannot be solved merely by literally interpreting the provisions of any statute, but require
consideration of various other factors
153
Administrative Law, 1994, pp.909-10

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(ii) The administrative authorities can avoid technicalities. They take a functional rather than a
theoretical and legalistic approach. The traditional judiciary is conservative, rigid and
technical. It is not possible for a court of law to decide a case without formality and
technicality. On the other hand, administrative authorities are not bound by the rules of
evidence and procedure and they can take a practical view of the matter to decide the
complex problems.

(iii) Administrative authorities can take preventive measures, e.g. licensing, rate – fixing, etc.
unlike regular courts of law they have to wait for the parties to come before them with
disputes.

(iv) Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures, e.g. suspension, revocation or cancellation of licences, destruction of
contaminated articles, etc which are generally not available through the ordinary courts of
law.

(v) The adjudicatory process is cheaper to the litigants, for example no fee or order for costs are
required to some disputes. The quicker and less formal procedures are less expensive than
in normal courts

(vi) Much more relaxed and informal manner of operation creates a good atmosphere for
claimants to pursue their claims. The courts process of examination, cross – examination
and re-examination of witness and its strict rules of evidence are relaxed in tribunals, thus
the relaxation enable the parties to understand and follow the proceedings.

(vii) In ordinary courts of law, the decisions are given after hearing the parties and on basis of
evidence on record. This procedure is not appropriate in deciding matters by the
administrative authorities where wide discretion is conferred on them and the decisions
may be given on the basis of the departmental policy and other relevant factors.

(viii) Sometimes, the disputed questions are technical in nature and the traditional judiciary
cannot be expected to appreciate and decide them. On the other hand, administrative
authorities are usually manned by experts who can deal with and solve these problems, e.g.
prblems relating to electricity, gas, minerals, fuel etc.

7.3 Pros and Cons of Administrative Tribunals

The existence of administrative tribunals in modern societies has been viewed as an inevitable
phenomenon due to the increase of State’s functions. However the existence of administrative tribunals
have its positive and negative impact to the system of administration of justice.

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7.3.1 Advantages of Administrative Tribunals

(i) tribunals have wide discretionary powers and are not bound to follow the precedents
(ii) they reduce the floodgate of administrative cases before the ordinary courts of law
(iii) there is an informal atmosphere
(iv) they are cheap
(v) expert staff – contain persons with relevant skills or expert knowledge in the particular field
concerned to determine the disputes.
(vi) Speedy adjudication

7.3.2. Disadvantages of Administrative Tribunals

(i) Tribunals are not courts of law and are not bound to follow closely legal procedures for example
law of evidence or the right to cross examination, this will lead to the insuffience of scrutinizing
the facts to ascertain the truth.
(ii) Reasons for decision are not always published. They are not bound to give their decisions
according to the weight of evidende, they are not bound to the rules of precedents, thus
resulting to uncertainity in administrative legal development
(iii) They are sometimes held in camera
(iv) Members sometimes include civil servants, who are directly involved in the dispute, thereby
acting as judge in their own course.
(v) Members are usually appointed by the Executive, thus they lack the traditional independence of
the judiciary. They may favour the Executive in their decisions so as to ensure their re-
appointment.
(vi) Parties sometimes are prohibited from being represented by lawyers, the in articulate person is
therefore at a disadvantage in expaining his case.
(vii) Right of appeal are limited in some tribunals, sometimes ordinary courts are oustered hence
defeat the independence of judiciary
(viii) Discretion sometimes is so wide as to make the decisions inconsistency and
unpredicatable
(ix) Although members may be experts in their own fields, yet they lack the requisite judicial or legal
trainning for adjudicatory functions they perform, thus they may lack the fact finding technique.

7.4.1. Similarities between Quasi – Judicial (Administrative Tribunals) and Ordinary Courts

(i) Both are vested with judicial powers, i.e. they are adjudicating authorities
(ii) In both, parties must be heard
(iii) Both take into consideration the evidence adduced and determine it accordingly. They may
order any person to attend and give evidence and in both they may summon anybody to appear
as witness.
(iv) Generally, in both the hearing must be in public and not in secret except for pre-hearing stages
where the case may be conducted in chambers
(v) In both, the decision must confirm to the laid – down procedure

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(vi) In both, the rules or principles of natural justice must be adhered in determination of the case.

7.4.2. Differences between Quasi – Judicial (Administrative Tribunals) and Ordinary Courts

(i) A court of law is part of the traditional judicial system. Where the judicial powers are derived
from the State. On the other hand, an administrative tribunal is an agency created by statute
and invested judicial powers. Primarily and essentially, it is a part of the Executive branch of the
State, exercising executive and judicial functions.
(ii) Whereas ordinary courts have judicial power to try all suits of a civil nature, except those whose
cognizance is either expressly or impliedly barred, tribunals have power to try cases in special
matters statutory conferred.
(iii) Judges of ordinary courts of law are independent of the executive in respect of their tenure,
terms and conditions of service, etc. on the other hand, members of administrative tribunals
are entirely in the hands of the government in respect of those matters.
(iv) In a court of law, a Judge must be impartial, arbiter and he cannot decide a matter in which he
is interested. On the other hand, an administrative tribunal may be party to the dispute to be
decided by it.
(v) A court of law is bound by the rules of evidence and procedure but administrative tribunals are
not bound by those rules unless the relevant statute imposes such an obligation. There are
more relaxed informal rules of procedure in quasi – judicial tribunals than the ordinary courts.
(vi) The courts of law are the creature of the contitution while quasi – judicial tribunals are
creatures of Acts of Parliament.
(vii) The courts of law have power to control the quasi – judicial bodies if the latter acts ultra vires,
e.g. by way of judicial review. The quasi – judicial tribunals have no such powers.
(viii) The officers presiding over or composing the quasi – judicial bodies are not necessarily
judicial officers while the ordinary courts must be presided over by qualified judicial officers
(ix) While the court of law is bound by precedents, principles of res judicata and estoppel, and
administrative tribunal is not strictly bound by them.
(x) A court of law can decide the ‘vires’ of a legislation while an administrative tribunal cannot.

7.4.3. Distinction between Administrative Tribunals and Executive Authority

(i) An administrative tribunal is not an executive body or administrative department of the

government. They are administrative only because they are part of an administrative sheme
for which a minister is responsible to Perliament, and because the reasons for prefering
them to the ordinary courts are administrative reasons154
(ii) The functions entrusted to and the powers conferred on an administrative tribunal are
quasi – judicial and not purely administrative in nature.
(iii) An administrative tribunal cannot delegate its quasi – judicial functions to any other officer
(iv) It cannot give its decision without giving an opportunity of being heard to the parties or
without observing the principles of natural justice

154
Wade: Administrative Law. 1994, p.909

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(v) It is bound to act judicially, thus record findings of the facts, apply legal rules to them
correctly and give its decisions.
(vi) The prerogative writs of certiorari and prohibition are available against the decisions of an
administrative tribunals.

7.5. Case study of Administrative Tribunals in Tanzania

There are various administrative tribunals operating in Tanzania for the purpose of ensuring
effectiveness and efficiency of the socio – economic activities within the country. Examples of these
tribunals will be discussed so as to enlight their functions, objective and compositions. Tribunals in
Tanzania covers areas such as labour relations, land issues, tax matters, business activities, and public
procurement.

7.5.1 Tax Revenue Appeals Board

The Tax Revenue Appeals Board (TRAB) is a quasi – judicial institution. Its core function is to hear and
determine civil disputes arising from revenue laws administered by the Tanzania Revenue Authority. The
jurisdiction of the Board is provided for by S.7 of the Tax Revenue Appeals Act155. The primary mission of
the Board is to ensure a just, efficient, effective and speedy disposal of tax disputes.

In the year 2000, the Government as a matter of policy decided to establish Unified Tax Appeal
machinery under which tax disputes arising from all Revenue laws administered by Tanzania Revenue
Authority (TRA) have to be lodged in the same appellate authority. Prior to the establishment of the
New Unified Tax Appeals Machinery, there was the National Tax Appeals Board, which had jurisdiction
to hear and determine only Income Tax Appeals arising from the decision of the Commissioner of
Income Tax. An Act of the Parliament, the Tax Revenue Appeals Act established the Tax Revenue
Appeals Board.

The composition of the Board is made up of a Chairman, two Vice Chairman and four members from
each region. The quoram in any meeting is made up f the Chairman or Vice Chairman sitting with two
other members. The Board Chairman and the Vice Chairmen work on full tme basis, while the othe
members of the Board work on part time basis. The board has the Secretary who handles administrative
matters of the Board. The Secretary receives and registers appeals and applications from the parties.
The Secretary also does taxation of the bills of costs.

Any person who is aggrieved by the final determination of the assessment of tax, any decision, act or
omission by the Commissioner General may appeal to the Board. One may lodge an appeal after a
notice of appeal is served upon the Commissioner General within 30 days following the date on which a
notice of final determination of assessment of tax or any other decision by the Commissioner General is
served on the appellant and the appeal is lodged with the Board within 45 days following the date on
which the notice of final determination of assessment of tax or any other decision by the Commissioner
General is served on the appellant. If one misses the deadline to appeal to the Boardwithin stipulated

155
[CAP 408.R.E.2006]

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time, may apply to the Board to extend the time within which to file an appeal. However the Board may
extend if it is satisfied that the failure by party to give notice of appeal, lodge an appeal or to effect
services to the opposite party was occasioned by absence from the United Republic, sickness or other
reasonable cause.

Hearing of appeal is public unless a party to the proceedings otherwise applies and the Board directs
that the proceedings or part of it, be heard in camera.

If a person is dissatsfied with the decision of the Board he may appeal to the Tax Revenue Appeals
Tribunal.

Tax Adjudicative Authorities Structure

COURT OF APPEAL
TANZANIA (CAT)

TAX REVENUE APPEALS

TRIBUNAL (TRAT)

TAX REVENUE APPEALS

BOARD (TRAB)

COMMISSIONER GENERAL
(TRA)

7.5.2. The Fair Competition Tribunal (FCT)

The Fair Competition Tribunal is a quasi – judicial organ which is established under S.83(a) of the Fair
Competition Act, No 8 of 2003. It was established as an appellate body for the purposes of resolving
disputes at appeal level that arise from unfair business practices.

The FCT consists of a Chairman and six members. The Chairman and six members are all presidential
appointees. The President appoints the Chairman among the Judges of the High Court of Tanzania after
consultation with the Chief Justice. He also appoints the six members after consultation with the
Attorney General by virtue of their knowledge and experience in industry, commerce, economics, law
and public administration. The Chairman and the members all work on part time basis. The tribunal also
has the management led by the Registrar which performs all of its day-to-day operational functions.

The Tribunal has jurisdiction to hear and determine appeals that arise from orders and decisions of;

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 The Fair Competition Commission (FCC)

 Energy and Water Utilities Regulatory Authority (EWURA)
 Surface and Marine Transport Regulatory Authority (SUMATRA)
 Tanzania Communications Regulatory Authority (TCRA)
 Tanzania Civil Aviation Authority (TCAA)
 Any other such regulatory authority established by law

Rule 32 of the Fair Competition Rules, GN No.189 of 2006 defines the powers of the Tribunal, that it has
judicial powers similar to those of the High Court of Tanzania when dealing with appeal cases. In dealing
with any appeal the Tribunal may;

 Confirm, reverse or vary the decision of the FCC or the relevant regulatory body;
 Remit the proceedings to the FCC or the relevant regulatory body with such directions as may be
appropriate;
 Order the FCC or relevant regulatory body to conduct fresh proceedings; and
 Make any necessary incidental or consequential orders such as
- Compensation for the loss suffered
- Prohibition orders
- Declaratory orders
- Punitive sanctions such as fines

There are two categories of appeals that are heard by the Tribunal. These are:

(a) Appeals arising from unfair competition among suppliers of goods or services such as water,
power or telecommunication utilities. Disputes between the suppliers are decided at first
instance, by the respective regulatory bodies. The party aggrieved by the decision has the right
to appeal to the Tribunal
(b) Consumers of the services who have suffered damage as a result of poor services rendered by a
service provider may complain to the regulatory authority of the respective services which will
decide, at first instance. The aggrieved party has the right to appeal to the Tribunal.

The Fair Competition Act govern the proceedings of the Tribunal. In addition, the tribunal has
promulgated its own Procedural Rules which have been published as GN. No.189 of 2006. When dealing
with appeal cases the Tribunal may sit anywhere within Tanzania Mainland. There is a right of
representation by an Advocate or agent in the proceedings of the Tribunal.

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Fair Competition Tribunal Adjudicative Structure

COURT OF APPEAL
OF TANZANIA (CAT)

FAIR COMPETITION
TRIBUNAL (FCT)

EWURA SUMATRA FCC TCRA TCAA

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VIII: JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

8.0. Introduction

The change within State function thus from ‘Police State’ to ‘Welfare State’ has tremendously increased
the functions of the government., whereas the administrative authorities have acquired vast
discretionary powers and generally, exercise of those powers are left to the subjective satisfaction of the
administration without laying down the statutory guidelines or imposing conditions on it156. Therefore
the current situation is that the administration administers law enacted by the legislature and thus
performs the executive functions; it also enacts legislation when the legislative powers are delegated to
it by the legislature and it also interprets law through administrative tribunals. Thus, there is
concentration of all powers in the hands of the administration – legislative, executive and judicial157.

8.1 Meaning

Administrative Discretion

The meaning of administrative discretion has been comprehensive given by Professor Freund158 in the
following words:

‘When we speak of the administrative discretion, we mean that a determination may be reached, in part
at least, upon the basis of consideration not entirely susceptible of proof or disproof…. It may be
practically convenient to say that discretion includes the case in which the ascertainment of fact is
legitimately left to administrative determination’

Thus, here the decision is taken by authority not only on the basis of the evidence but in accordance
with policy or expediency and in exercise of discretionary powers conferred on that authority.

Judicial Review

Black’s Law Dictionary, 8th Edition defines judicial review as the Court’s review of a lower or an
administrative body’s factual or legal findings. The high court is therefore vested with the power to pass
through a decision or order made by a public body, a tribunal or an inferior court to examine among
other things its correctness, legality and if it was based on the principles of natural justice. Hence the
powers of the high court are only supervisory.

156
C.K. Takwani: Lectures of Administrative Law, p.236
157
Ibid
158
Administrative Powers over Persons and Property, 1928, p.71 also quoted by C.K. Takwani: Lectures of
Administrative Law, p.236

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Judicial review comprises the power of a court to hold unconstitutional and unenforceable any law or
order based upon such law or any other action by public authority which is inconsistent or in conflict
with the basic law of the land159. Generally, judicial review deals with three aspects thus, judicial review
of legislative action; judicial review of judicial decision; and judicial review of administrative action.
However, the subject matter of this lecture is judicial review of administrative actions.

8.2 Essentials in Judicial review of Administrative Discretion

Object of Judicial Review

The object of judicial review is to ensure that the authority does not abuse its power and the individual
receives just and fair treatment and to ensure that the authority reaches a conclusion which is correct in
the eyes of law160. Therefore, judicial quest in administrative matters is to strike the just balance
between the administrative discretion to decide matters as per government policy, and the need of
fairness, thus any unfair action must be set right by administrative review161. Professor Issa Shivji
viewed that judicial review as one of the mechanism by which a relatively open organ of the State i.e.
Judiciary can bring to light and to some limited extent redress the abuse of power and authority
committed by other organs of the State and public officials.

Rationale of Judicial Review

The rationale behind the judicial review is that it form as integral part of the constitutional system and
without it, there will be no government of laws and the rule of law would become a teasing illusion and
a promise of unreality. Therefore, judicial review is a basic and essential feature of the Constitution and
it cannot be abrogated without affecting the basic structure of the Constitution.

Scope of Judicial Review

It is important to note that in judicial review, the court is not concerned with the merits or correctness
of the decision, but with the manner in which the decision is taken or order is made. The court of law is
not exercising appellate power and it cannot substitute its opinion of the authority deciding the matter.
Thus, the areas where judicial power can operate are limited to keep the executive and legislature
within the scheme of division of powers between the three organs of the State162.

Limitation of Judicial Review

Moreover, judicial review has its limitations, whereas the duty of the court is to confine itself to the
question of legality, thus whether the action taken by administrative authority has legal justification or

159
Henry Abraham cited in Chandra Kumar v Union of India, (1997) 3 SCC 261
160
Chief Constable v Evans (1982) 3 All ER 141, also cited by C.K. Takwani: Lectures of Administrative Law, p.237
161
Tata Cellular v Union of India (1994) 6 SCC 651
162
C.K. Takwani: Lectures of Administrative Law, p.238

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not. It has to be understood that it is for the executive to administer the law and the function of the
judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the
Constitution and general laws. Thus, the court has the duty to consider whether the decision – making
authority exceeded its powers, committed an error of law, violated rules of natural justice, and reached
a decision which no reasonable man would have reached or otherwise abused its powers. Though the
court is not expected to act as a court of appeal, nevertheless it can examine whether the decision –
making process was reasonable, rational, not arbitrary, etc163. Unless the order passed by an
administrative authority is unlawful or unconstitutional, power of judicial review cannot be exercised.
Therefore, power of judicial review is supervisory in nature.

Discretionary Power and Judicial Review

There is wide range of discretionary powers which have been conferred to the administrative
authorities. Starting with discretion in trivial matters such as maintenance of birth and death register to
powers which seriously affects the rights of individuals, e.g, acquisition of properties, regulation of
trade, industry or business, investigation, seizure, confiscation and destruction of property, detention of
person on subjective satisfaction of an executive authority164.

The general rule is that, the courts have no power to interfere with the actions taken by administrative
authorities in exercise of discretionary powers. This was once observed by Lord Halsbury, in the case of
Westminster Corporation v London & North Western Railway Company165 that
‘where the legislature has confined the power to a particular body, with a discretion how it is to be used,
it is beyond the power of any court to contest that discretion’

However, this does not mean that there is no control over the discretion of the administration. Since
administration possesses vast discretionary powers and if complete and absolute freedom is given to it,
it will lead to arbitrary exercise of power. Therefore, all powers have legal limits. Wide discretion must
be in all administrative activity but it should discretion define in terms of which can be measured by
legal standards lest cases of manifest injustices go unheeded and unpunished166. Also, as early as 1647 in
the case of Estwick v City of London167, it was it was laid down by King’s bench that
‘wheresoever a Commissioner or other person hath power given to do a thing at his discretion, it is to be
understood of sound discretion, and according to law, and that this Court hath power to redress things
otherwise done by them’.

Thus, in almost all the democratic countries it is accepted that discretion conferred on the
administration is not unfettered, uncontrolled, or non-reviewable by the courts.

163
Ibid
164
Ibid
165
(1905) AC 426
166
Wade: Courts and Administrative Process, 1949, 63 LQR 173
167
(1647) Style 42

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8.3. Historical Background of Judicial Review in Tanzania

Since the main objective of judicial review as discussed on the fore going part as to supervise the
administrative bodies decision making and policy implementation, during much of the colonial period
judicial review had virtually no role to play for the simple reason that colonialism itself was one gigantic
abuse of power. Access to colonial courts which were racially segregated was denied, the large majority
courts in effect served largely the immigrant communities involved in commercial and other such
enterprises.

For the first two decades of independence the legal terrain remained much the same although the
trappings of racism in the colonial law were removed. Judicial activities in the field of judicial review
began to pick up hesitantly in the 1980’s as the arbitrary use of the administrative power affecting
property owners began to be challenged in courts. See the case of Patman Garmets v Tanzania
Manufactures168, Thereafter, emerged a few courageous people who stood up and challenged the
presidential powers under the Preventive Deportation Act of 1962 though they were always
unsuccessful. At the other end of the scale, the legal aid of the Faculty of Law of the University of Dar es
Salaam filed several judicial review applications in labour matters, for example Hamis Ally Ruhondo &
15 others v TAZARA169, which in the sense was a rediscovery of judicial review mechanism to challenge
administrative power. In fact it was the justifiability of the Bill of Rights which gave the big boast to the
judicial positivism in the field of judicial review. The Bills of Rights was first introduced in Tanzanian
Constitution in 1984 by the 5th Constitutional Amendment.

8.3.1. Sources of Supervisory Jurisdiction (Judicial Review) in Tanzania

(a) The Constitution of the United Republic of Tanzania, 1977

The High Court has been established by Article as the superior court of record in any matter which ‘in
accordance with legal traditions and conventional practices’ obtaining in Tanzania, is to be dealt with
the High Court. It can be said that by 1977 the supervisory jurisdiction of the High Court through judicial
review had become part of the legal tradition and practice in Tanzania. Article.13 (6) (a) of Constitution
also stresses this view by providing the right of appeal or ‘any other legal remedy’ this presumably
includes Judicial Review.

(b)The Judicature and Application of Laws Act

The supervisory power of the High Court is derived from Section 2(3) of the JALA. This provision provides
that the High Court is vested with powers to exercise its jurisdiction in conformity with the substance of
the Common Law, Doctrine of Equity and with powers vested in and according to the procedure and

168
[1981] TLR 303
169
Civil Appeal No.1 of 1986

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practice observed by and before the Courts of Justice in England. Therefore, it can be said that, the
substantive law, the practice and procedures obtained in England on the date of reception.

(c)The Criminal Procedure Act

This is another source of judicial review on criminal cases, thus a power exercised by the High Court by
virtue of Section 390 whereby a writ of Habeas Corpus is clearly provided for.

(d)The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act

This was stated by Samatta J in the case of Chavda v Director of Immigration Services where he stated
this law as being ‘the legislation which confers on this Court the power to grant prerogative remedies.
However, Proffesor Shivji criticized this saying that it is an erroneous belief because the Law Reform
(Fatal Accidents and Miscellaneous Provisions) Act only changes the designation of the three prerogative
remedies of Mandamus, Certiorari and Prohibition from writs to orders a change which was brought
about in England in 1938 but does not constitute the source of jurisdiction.

8.3.2. Bodies subjected to Judicial Review

(a) Public Bodies and Officials

This includes the Ministers, Ministries and Government Officials and Government departments. Thus,
the Government ministries, other public officials and bodies exercising public functions under the
authority of law including statutory corporations, for example, institutions for learning, governmental
parastatals, etc. read the case of Simeon Manyaki v Institute of Financial Management170.

(b)Private Bodies with Public Functions

It is well-settled by Tanzanian case laws that public bodies and officials as well as domestic tribunals
such as associations, clubs and societies are amenable to judicial review. A body which is not directly
established by the statute but is regulated by it, therefore derives some of its powers under statute is
also amenable to judicial review. For example, schools are regulated by the National Education Act, read
the case of Nyirabu and Others v A.G. & Board Chairman Songea Boys Secondary School171.

8.3.3. Institution of Judicial Review

The institution of judicial review involves two stages;

1. Leave Stage
At this stage application is made to the High Court for leave to file Judicial Review. This
application is made by way of chamber summons supported by an affidavit. At this stage the
court determines whether there exists a good case to be taken for judicial review or not. i.e. the
court determines whether the case is not frivolous. The application is made ex-parte. The

170170
Misc.Civ Application No.68 of 1994 HC DSM
171
Misc.Civ.App No.3 of 1994 H.C. Songea

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applicant has to show that he has no any other alternative remedy than going for judicial
review.
The affidavit must depose clearly to both the material facts as well as the grounds for the
application. It is now a well established principle that application for leave instated by chamber
summons accompanied by statements of the grounds and an affidavit. This was stated by
Kyando J, in the case of Nkuzi v Tanzania Sisal Authority, whereas in this case the court struck
out an application as incompetent for absence of statement of grounds. However, Lugakingira J
adjourned the matter to allow the applicant to file the statement of the grounds in the case of
Mwakibete v The Principle.
At the leave stage the court shall summon the A.G to appear as a party, if he does not appear on
the date mentioned in the summons the court may proceed ex-parte. Read the case of Mwanza
Restaurant v Mwanza Municipal Director172. The A.G appears as the necessary party wearing
the cap of the respondent.

2. Application for the Judicial Review after the leave has been granted
After the leave is granted, the applicant must file a new application. However, this is more
theoretical, most practitioners do not bother to file new application they just carry over to this
stage the papers filed for the leave stage.

Matters of evidence in judicial review are mainly by affidavits. The deponent can be cross-
examined but this is rarely done in practice, it is more theoretical.

8.4. Grounds for Judicial Review

The court while exercising the powers of judicial review it should not be understood as it does exercise
appellate powers, judicial review is not intended to take away from administrative authorities the
powers and discretion properly vested in them by law and substitute to courts as the bodies making the
decisions, therefore, judicial review is not a weapon but protection against abuse of discretionary
powers173. It was once observed by Lord Brightman174 that ‘Judicial review is concerned not with the
decision, but with the decision – making process. Unless that restriction on the power of the court is
observed, the court in my view, under the guise of preventing the abuse of power, be itself guilty of
usurping power’. Therefore, as far as judicial review is concerned to the discretionary powers of the
administrative authorities, the duty of the court is to confine itself to the question of legality, whereas
its concern should be in the following areas175;

 Whether a decision – making authority exceed its powers

 Committed an error of law,

172
Misc. Civil Cause No.3 of 1987
173
C.K. Takwani: Lectures of Administrative Law, p.243
174
In the case of Chief Constable v Evans (1982) 3 All ER 141
175
Tata Celluar v Union of India, (1994) 6 SCC 651

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 Committed a breach of the rules of natural justice,

 Reached a decision which no reasonable tribunal would have reached, or
 Abuse of its powers

There are circumstances on which the courts would interfere with the discretionary powers exercised by
the administration, these are as follows:

 Failure to exercise discretion; or

 Excess or abuse of discretion.

8.4.1. Failure to exercise discretion

It has to be noted that the main purpose of conferring discretionary powers on an administrative
authority is that the authority itself must exercise the said power, whereas if there is failure to exercise
discretion on the part of that authority the action will be bad176. Thus, the following are the
circumstances which amount to failure to exercise discretion;

A. Sub – delegation

A discretionary power must, in general, be exercised only by the authority to which it has
been committed. It is a well known principle of law that when a power has been confided to a
person in circumstances indicating that trust is being placed in his individual judgment and
discretion, he must exercise that power personally unless he has been expressly empowered
to delegate it to another177. The very object of conferring a power on a particular
administrative authority is that the power must be exercised by that authority and cannot be
sub - delegated to any other authority or official.

In the case of Sahni Silk Mills v ESI Corporation178, the Parent Act enabled the corporation to
delegate its power to recover damages to the Director General, who, however, in turn sub –
delegated the said power to Regional Directors. Since there was no provision permitting the
Director General to sub – delegate his power the action was held to be bad.

B. Imposing fetters on discretion by self – imposing rules of policy

It is the duty of an authority entrusted with discretionary power must exercise the same after
considering individual case. However, there is a tendency on part of administrative authorities
of imposing fetters on its discretion by adopting fixed rules of the policy to be applied in all
cases coming before it; this will amount to the failure to exercise discretion. The procedure for
which the authority has to follow is that it must consider the facts of each case and apply its
mind in deciding the same. If any general rule is pronounced, which will be applied to all cases,

176
C.K. Takwani: Lectures of Administrative Law, p.244
177
De Smith: Judicial Review of Administrative Action, 1995, 357
178
(1994) 5 SCC 346

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there is no question of considering the facts of an individual case at all and exercising
discretion by the authority179.
In the case of Keshavan Bhaskaran v State of Kerala180, the relevant rule provided that no
school – leaving certificate would be granted to any person unless he had completed fifteen
years of age. The Director was, however, empowered to grant exemption from this rule in
deserving cases under certain circumstances. But the Director had made an invariable rule of
not granting exemption unless the deficiency in age was less than two years. The court held
that the rule of policy was contrary to law.

However, this does not mean that no principle can be laid down or policy adopted. The only
requirement is that even when general policy is adopted, each case must be considered on its
own merits. It was once observed in the case of British Oxygen Co.Ltd. v Minister of
Technology181, whereas Lord Reid rightly states, a Minister having a discretion,, may
formulate a policy or make a limiting rule as to the future exercise of his discretion, if he
thinks that good administration requires it, provided the authority is always willing to listen to
anyone with something new to say. Also, Lord Cooke, J rightly observed in the case of Stringer
v Minister of Housing182 that ‘a Minister charged with the duty of making individual
administrative decisions in a fair and impartial manner may nevertheless have a general policy
in regard to matters which are relevant to those decisions, provided that the existence of that
general policy does not preclude him from fairly judging all the issues which are relevant to
each individual case as it comes up for decision’.

C. Acting under dictation

Sometimes, an authority entrusted with a power does not exercise that power but acts under
the dictation of a superior authority. Here, the authority invested with the power purports to
act on its own but in substance the power is exercised by another, whereas the authority
concerned does not apply its mind and take action on its own judgment, even though it was
not intended by the statute. It is well – settled that if the authority permits its decision to be
influenced by the dictation of the others, it would amount to abdication and surrender of
discretion183.
In the case of Commissioner of Police v Gordhandas184, under the City of Bombay Police Act,
1902, the Commissioner of Police granted licence for construction of a cinema theatre. But,
later on, he cancelled it at the direction of the State Government. The Supreme Court set
aside the order of cancellation of licence as the Commissioner had acted merely as the agent
of the Government.

179
C.K. Takwani: Lectures of Administrative Law, p.245
180
AIR 1961 Ker 23
181
(1970) 3 WLR
182
(1970) 1 WRL 1281
183
C.K. Takwani: Lectures of Administrative Law, p.248
184
AIR 1952 SC 16

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D. Non – application of mind

When a discretionary power is conferred on the authority, the said authority must exercise
after applying its mind to the facts and circumstances of the case in hand. If this condition is
not satisfied, there is clear non – application of mind on the part of the authority concerned.
Thus, the authority might be acting mechanically, without due care and caution or without a
sense of responsibility in the exercise of its discretion.
In the case of Barium Chemicals Ltd. V Company Law Board185, an order of investigation
against the petitioner company was passed by the Central Government. Under the Companies
Act, 1956, the Government was empowered to issue such order if, ‘there are circumstances
suggesting fraud on the part of the management’. It was held by the Supreme Court that it
was necessary for the Central Government to state the circumstances which led to the
impugned action so that the same could be examined by the Court.

ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES AND OTHERS186

The applicants applied for various orders against the respondents arising out of the refusal of
a fishing licence for the 1996 fishing period. In 1994 the Minister for Tourism, Natural
Resources and the Environment (the 2nd respondent) promulgated Government Notice 370 of
1994 whereby it was ordered that fishing vessels had to comply with certain specifications
relating to overall length, tonnage and engine power. It was specified that the vessel's main
engine bhp should not exceed 500. The applicants' vessel was modified for these purposes
and although it marginally exceeded the maximum length its engine power was reduced to
comply with the requirements. Notwithstanding the modification, the licence was not
granted. Aggrieved by this decision the applicant applied to court for the following relief:

(i) an order of certiorari to remove into the court GN 370 of 1994 for the purpose of it
being quashed for being unreasonable; (ii) an order of certiorari to remove into the court the
decision made by the first and second respondents refusing to issue a fishing licence and for
the quashing thereof; (iii) an order of mandamus directing the first and second respondents to
issue a fishing licence and to guide their action in terms of the provisions of the National
Investment (Promotion and Protection) Act 10 of 1990; (iv) an order of mandamus directing
the first and second respondents to respect the certificate of approval issued to the applicants
by the third respondent; (v) an order of mandamus directing the third respondent to respect
the certificate of approval issued to the applicants and protect them from irregular
procedure.

185
AIR 1967 SC 2
186
1996 TLR 352 (HC)

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Held:

(i)Government Notice 370 of 1994 had been made under s 7 of the Fisheries Act 6 of
1970 which empowered the Minister responsible for fisheries to make regulations for inter
alia the protection of fish resources. There was nothing to indicate that the Minister had acted
ultra vires in sanctioning GN 370. Neither was there anything to show that GN 370 was
unreasonable.

(ii) There was no provision which stipulated that once the IPC issued an investor with a
certificate of approval then the Director of Fisheries or the Minister had to issue him with a
fishing licence.

(iii) If the third respondent had a duty of care to protect the applicants and he breached
that duty of care and the applicants had suffered a financial loss then the remedy was to be
found somewhere else and not by an order of mandamus.

(iv) The discretion which the first respondent had to exercise in awarding fishing licences
had to be exercised with a judicial mind: in refusing the applicant's licence the first and second
respondents had acted under a false belief that the appellant's vessel exceeded the specified
500 bhp and the decision was accordingly not reached on the basis of fairness and justice and
had to be quashed.

E. Powers coupled with duty

A number of statutes confer powers on administrative authorities and officers to be exercised
by them in their discretion. Such powers are conferred in permissive language such as ‘may’,
‘it shall be lawful’, ‘it may be permissible’, etc. the question is whether it is open to the
authorities to exercise or not to exercise the power at their wills.
It has to be well conceived that discretionary powers are frequently coupled with duties. It
was once observed by Lord Blackburn that, ‘enabling words were the words to effectuate a
legal right’.
In the case of Julius v Lord Bishop of Oxford187, the bishop was empowered to issue a
commission of inquiry in case of alleged misconduct by a clergyman, either on an application
by someone or suo motto and when such an application was made, the question was whether
the Bishop had a right to refuse the commission. The House of Lords held that the Bishop has
discretion to act pursuant to the complaint and no mandatory duty was imposed on him.
However, Earl Cairns, L.C. made the following observation;
Where a power is deposited with a public officer for the purpose of being used for the benefit
of persons who are specifically pointed out, and with regard to whom a definition is supplied
by the legislature of the conditions upon which they are entitled to call for its exercise that
power ought to be exercised, and the court will require it to be exercised.

187
(1880) 5 AC 214

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In the case of R v Metropolitan Police Commander188, it was held that the licensing authorities
were bound to renew licences of the cab-drivers if the prescribed procedural requirements
had been complied with. Also in the case of R v Newcastle-upon-Tyne Corporation189, local
authorities were bound to approve building plans if they were in conformity with by-law.

8.4.2. Excess or Abuse of Discretion

Whenever the discretionary power is conferred on administrative authority, it must be exercised

according to law, whereas when the mode of exercising a valid power is improper or unreasonable,
there is an abuse of the power190. Therefore the excess or abuse of discretion may be inferred from the
following circumstances;

A. Absence of Power
It is well-settled that there can be no exercise of power unless such power exists in law. If the
power does not exist, the purported exercise of power would be non-existent and void.
Likewise, where the source of power exists, exercise of it is referable only to that source and not
to some other source.
In the case of R v Minister for Transport191, even though the Minister had no power to revoke
the licence, he passed an order of revocation. The action was held ultra vires and without
jurisdiction.

B. Exceeding Jurisdiction
An administrative authority must exercise the power within the limits of the statute and if it
exceeds those limits, the action will be held ultra vires. A question whether the authority acted
within the limits of its power or exceeded it can always be decided by a court.
In London Country Council v Attorney General192, the local authority was empowered to
operate tramways. The local authority also carried on bus services. An injunction against the
operation of buses by the Council was duly granted.

C. Irrelevant Considerations
The power conferred on the administrative authority by the statute must be exercised on the
considerations relevant to the purpose for which it is conferred. Instead, if the authority takes
into account wholly irrelevant or extraneous considerations the exercise of power by the
authority will be ultra vires and the action bad. It is settled law that where a statute requires an
authority to exercise power, such authority must be satisfied about existence of the grounds
mentioned in the statute.

188
(1911) 2 QB 1131
189
(1889) 60 LT 963
190
Markose: Judicial Control of Administrative Action in India, 1956, p.417
191
(1934) 1 KB 277
192
(1902) AC 165

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In the State of M.P. v Ramshankel193, services of the teacher were terminated on the ground
that he had taken part in RSS and jan Sangh activities. Observing that to deny employment to an
individual because of his political affinities would be violative of Article 14 and 16 of the Indian
Constitution, the Supreme Court set aside the order.

D. Leaving out Relevant considerations

As discussed above, the administrative authority cannot take into account irrelevant or
extraneous considerations. Similarly, if the authority fails to take into account relevant
considerations, then also, the exercise of power would be bad. But it is sometimes very difficult
to prove that certain relevant factors have not been taken into account by the authority, unless
detailed reasons are given in the impugned order itself from which it can be inferred. Still,
however, sometimes the relevant considerations are prescribed by the statute itself, e.g.
“regard shall be had to”, “must have regard to”, etc. here the matter so specified must be taken
into account.
In Rampur Distillery Co. v Company Law Board194, the company Law Board refused to give its
approval for renewing the managing agency of the Company. The reason given by the Board for
not giving its approval was that the Vivian Bose Commission had severely criticized the dealings
of the Managing Director, Mr. Dalmia. The court conceded that the past conduct of the directors
was a relevant consideration, but before taking a final decision, it should take into account their
present activities also.

E. Malafide
It is well-settled that every power must be exercised by the authority reasonably and lawfully.
Therefore, it is the duty of the court to see that all authorities exercise their powers properly,
lawfully and in good faith, whereas if the power is not exercised in good faith, the exercise of
power is bad and the action illegal.
Mala fide means ill-will, dishonest intention or corrupt motive. A power may be exercised
maliciously, out of personal animosity, ill-will or vengeance or fraudulently and with intent to
achieve an object foreign to the statute195. There are two types of malafide, thus ‘express
malice’ or ‘malice in fact’ and ‘implied malice’ or ‘legal malice’.
 Malice in fact
When an administrative action is taken out of personal animosity, ill-will, vengeance or
dishonest intention, the action it amount to malice in fact or implied malice, therefore
the action necessarily requires to be struck down and quashed.
In Pratap Singh v State of Punjab196, the petitioner was a civil surgeon and he had taken
leave preparatory to retirement. Initially the leave was granted, but subsequently it was
revoked. He was placed under suspension, the departmental inquiry was instituted

193
(1983) 2SCC 145
194
(1969) 2 SCC 774
195
De Smith: Judicial Review of the Administrative Action, 1995, pp.344-46
196
AIR 1964 SC 72

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against him and, ultimately, he was removed from the service. The petitioner alleged
that the disciplinary proceedings had been instituted against him at the instance of the
then Chief Minister to wreak personal vengeance against him as he had not yielded to
the illegal demands of the former. The Supreme Court accepted the contention, held
the exercise of power to be mala fide and quashed the order.

 Malice in law
When an action is taken or power is exercised without just or reasonable cause or for
purpose foreign to the statute, it amount to malice in law and the exercise of power
would be bad and the action ultra vires.
In Municipal Council of Sydney v Campbell197, under the relevant statute the Council
was empowered to acquire land for ‘carrying out improvements in or remodeling any
portion of the city’. The Council acquired the disputed land for expanding a street. But in
fact the object was to get the benefit of probable increase in the value of land as a result
of the proposed extension of the highway. No plan for improving or remodeling was
proposed or considered by the Council. It was held that the power was exercised with
ulterior object and hence it was ultra vires.

F. Improper Object: Collateral purposes

A statutory power conferred on the authority must be exercised for the purpose alone and if it is
exercised for a different purpose, there is abuse of the power by the authority and the action
may be quashed. The distinction between improper object and mala fide is that the latter,
personal ill-will, malice or oblique motive is present, while in the former it may not be so, and
the action may be bona fide and honest and yet, if it is not contemplated by the relevant
statute, it may be set aside.
In Banglore Medical Trust v Muddappa198, a piece of land ear-marked for the public park was
allotted at the instance of the then Chief Minister to a private trust for construction of nursing
home. It was contended that the action was taken in public interest and the local authority
would get income. The Supreme Court, however, held that the ‘exercise of power was contrary
to the purpose for which it was conferred under the statute’.

G. Non – Observance of natural justice

It is well-settled law that even if the exercise of power is purely administrative in nature, if it
adversely affects any person, the principles of natural justice must be observed and the person
concerned must be heard. Violation of the principles of natural justice makes the exercise of
power ultra vires and void.

H. Unreasonableness

197
(1925) AC 338
198
(1991) 4 SCC 54

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As it has been pointed out from the outset that a discretionary power conferred on an
administrative authority must be exercised by the authority reasonably, whereas if the power is
exercised unreasonably, there is an abuse of power and the action of the authority will be ultra
vires. The term unreasonable may include various things such as; irrelevant or extraneous
considerations which might have been taken into account by the authority or improper or
collateral purpose or mala fide exercise of power by the authority and the action may be set
aside by courts.
In Roberts v Hopwood199, the local authority was empowered to pay ‘such wages as it may think
fit’. In exercise of this power, the authority fixed the wages at 4 Sterling Pounds per week to the
lowest grade worker in 1921-22. The court held that though discretion was conferred, it was not
exercised reasonably and the action was bad. According to Lord Wrenbury, ‘may think fit’
means ‘may reasonably think fit’. Among other things His Lordship observed that ‘a person in
whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion
does not empower a man to do what he likes merely because he is minded to so – he must in
the exercise of his discretion do not what he likes but what he ought. In other words, he must,
by the use of his reason, ascertain and follow the course which reason directs. He must act
reasonably’.

JAMES F GWAGILO v ATTORNEY GENERAL200

The plaintiff, a seasoned civil servant, was charged under the Economic and Organised Crime
Control Act 1984 and acquitted. Then disciplinary proceedings were instituted against him under
the Civil Service Regulations; the proceedings ended in his favour. He was then removed from
office by, as stated in the letter communicating the decision to remove him, the President
directing that he be removed in the public interest. He filed a suit for a declaration that his
removal from office was wrongful. The defendant raised a preliminary point to the effect that
the court had no jurisdiction to try the case because the President had a prerogative power to
remove a civil servant in the public interest; that civil servants held office at the pleasure of the
President; and that the President’s decision to remove a civil servant in the public interest could
not be enquired into by any court.

Held:

(i) The prerogative power of the Crown to dismiss a civil servant at will ended, and
did not devolve to the President, when Tanganyika became a Republic in 1962;
instead the President could only remove a civil servant in the public interest
under s 20(3) of the Civil Service Act 1962, Cap 509, now replaced by the Civil
Service Act 1989 (Act No 16 of 1989);
(ii) Termination of a civil servant at the will of the President is not the same thing as
removal in the public interest; in the former the president need not show the

199
(1925) AC 578
200
1994 TLR 73 (HC)

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cause for the discharge while in the latter he must show the public interest
being served;
(iii) When removing a civil servant in the public interest, the President is bound to
give reasons indicating the public interest to be served; under the Constitution
the civil servant so removed has the right to appeal against, or to apply for
judicial review of, that removal and if no reasons are given therefore, that
constitutional right will be rendered ineffective and illusory;
(iv) Disclosure of reasons for removal of a civil servant in the public interest is also
necessary so as to reduce the possibility of casualness, arbitrariness and abuse
of power in the decision making process and to instill public confidence in it and
maintain its integrity, and to satisfy a basic need for fair play;
(v) The notion of a subjective or unfettered discretion is contrary to the Rule of
Law; although the Civil Service Act 1989 says that the President may remove a
civil servant from office if he considers it to be in the public interest to do so,
the discretion of the President must nevertheless be exercised objectively and
the High Court may enquire into that exercise to see if it was properly exercised;
(vi) Statutory clauses ousting the jurisdiction of the courts are ineffective to exclude
the power of the High Court to exercise its supervisory role of judicial review
conferred on it by article 108(2) of the Constitution;

8.4.3. Other grounds

Due to the rapid growth of administrative law and the need to control possible abuse of discretionary
powers by various administrative authorities, certain principles have been evolved by courts, wereas if
an action taken by any authority is contrary to law, improper, unreasonable or irrational, a court can
interfere with such action by exercising power of judicial review. Thus these other grounds are known as
the doctrine of proportionality and legitimate expectation.

I. The Doctrine of Proportionality

Proportionality is ‘concerned with the way in which the decision – maker has ordered his priorities, the
very essence of decision – making consists in the attribution of relative importance to the factors in the
case’. In the human right context, proportionality involves a ‘balancing test’ and the ‘necessity test’. The
former scrutinises excessive and onerous penalties or infringement of rights or interest whereas the
latter takes into account other less restrictive alternatives201.

The doctrine ordains that administrative measures must not be more drastic than necessary for
attaining the desired result. If an action taken by an authority is grossly disproportionate, the said
decision is not immune from judicial scrutiny. Apart from the fact that it is improper and unreasonable

201
Union of India v G. Ganayatham (1997) 7 SCC 463

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exercise of power, it shocks the conscience of the court and amount to evidence of bias and
prejudice202.

In Ranjit Thakur v Union of India203, an army officer did not obey the lawful command of his superior
officer by not eating food offered to him. Court martial proceedings were initiated and a sentense of
rigorous imprisonment of one year was imposed. He was also dismissed from the service, with added
disqualification that he will be unfit for future employment. The said order was challenged inter alia on
the ground that the punishment was gross disproportionate. Upholding the contention, following
Council of Service Unions, and emphasising that, ‘all powers have legal limits’, Venkatachaliah, J rightly
observed: ‘the question of the choice and quantum of the punishment is within the jurisdiction and
discretion of the court-martial. But the sentense has to suit the offence and the offender. It should not
be vindicative or unduly harsh. It should not be as disproportionate to the offence as to shock the
conscience and amount in itself a conclusive evidence of bias. The doctrine of proportionality as part of
the concept of judicial review, would ensure that even on aspect which is, otherwise, within the
exclusive province of the court martial, if the decision of the court even as to sentense is an outrageous
defiance of logic, then the sentense would not be immune from correction. Irrationality and perversity
are recognised grounds of judicial review.

The doctrine of proportionality, as the part of judicial review ensures that a decision otherwise within
the province of administrative authority must not be arbitrary, irrational or unreasonable. Though in
judicial review the court is not concerned with the correctness of the decision but the way the decision
is taken, the very decision – making process involves attributing relative importance to various aspects
in the case and there the doctrine of proportionality enters204.

II. The Doctrine of Legitimate Expectation

This doctrine explain that a person may have a legitimate expectation of being treated in a certain way
by an administrative authority even though he has no legal right in private law to receive such
treatment. Where a decision of an administrative authority adversely affects legal rights of an individual,
duty to act judicially is implicit. But even in cases where there is no legal right, he may still have
legitimate expectation of receiving a benefit or privilege. Such expectation may arise either from express
promise or from existence of regular practice which the applicant can reasonably expect to continue. In
such cases the court may protect his expectation by invoking principles analogous to natural justice and
fair play in action. The Court may not insist an administrative authority to act judicially but may still
insist him to act fairly205.

Principles of natural justice will apply in cases where there is some right which is likely to be affected by
an act of administration. Good administration, however, demands observance of the doctrine of
reasonableness in other situations also where the citizens may legitimately expect to be treated fairly.

202
Wade: Administrative Law, (1994) p.403
203
(1987) 4 SCC 611
204
C.K. Takwani: Lectures on Administrative Law, p.277
205
Schmidt v Secy of State (1969) 1 All ER

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Thus a doctrine of legitimate expectation have been developed both in the context of reasonableness
and in the context of natural justice206.

The doctrine was well explained in the case of Attorney General of Hong Kong v Ng Yuen Shiu207,
whereas the government announced that illegal immigrants would not be deported till their cases would
be considered individually on merits. A deportation order was passed against the applicant without
affording opportunity. Quashing the order the court observed through Lord Fraser that, ‘when a public
authority has promised to follow a certain procedure, it is in the interest of good administration that it
should act fairly and should implement its promise, so long as the implementation does not interfere
with its statutory duty’.

MOHAMED JAWAD MROUCH v MINISTER FOR HOME AFFAIRS208

The Applicant arrived in Tanzania during the course of 1987 and was subsequently granted a `Residence
Permit Class 'A' No.004307', issued on 14 September 1990. Renewed on 16 September 1993, the permit
was to remain current until 12 September 1994. In the interim, however, it was cancelled by the
Director of Immigration Services and duly confirmed by the Minister for Home Affairs, on 2 December
1993.In a letter to the Applicant, the Director advanced that `the power conferred upon me under
s.15(2) of the Immigration Act No.8 of 1972' constituted the reason for the cancellation of the
Applicant's permit. The Applicant's counsel contended that the unstated reason for the cancellation of
the permit was due to certain criminal charges pending against the Applicant, and that the effect of such
cancellation was that the Applicant, as persona non grata in the Republic, could not clear his name by
defending the charges. The Applicant accordingly sought the invalidation of the cancellation of the
permit on account of the alleged bias of the Minister and also on the basis that the Applicant was
`punished' unheard.

Held:

(i) The Applicant learnt of the cancellation of his permit from a third party, since he was
himself out of the country at the time of cancellation and the letter of cancellation was
served upon his son.
(ii) The Applicant was charged under laws and by authorities independent of the powers of
the Minister.
(iii) A foreign alien (sic) has no right to enter the Republic except by leave; and should leave
be granted, he cannot overstay the permissible period by a single day.
(iv) Once a permit is granted to an immigrant, he has the right to remain in the Republic
until such permit expires. If, however, the permit should be revoked during its currency,
the immigration authorities have a duty to give reasons for such revocation and to

206
C.K. Takwani: Lectures on Administrative Law, p.277
207
(1983) 2 All ER 346
208
1996 TLR 142 (HC)

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afford the affected person the opportunity of being heard, prior to a final decision being
taken.
(v) Discretionary powers must be exercised fairly, and this requires adherence to the rules
of natural justice which include the right to be heard. There is nothing in Section 15(1) of
the Immigration Act which ousts that right.
(vi) Although the Applicant had a legitimate expectation of remaining in the country until
the expiry of his permit, that expectation could have been justifiably extinguished if, and
only if, he had been given an opportunity of making representations to the authorities.
(vii) In the result, the following orders of certiorari are made: the Director's decision,
cancelling the Applicant's permit is quashed; the Minister's decision, confirming the
Director's decision of cancellation, is quashed; and the Minister's order of deportation
of the Applicant is quashed.
(viii) A mandamus is issued, ordering the Director to restore `Residence Permit Class `A'
No.0043607' to the Applicant forthwith.

Examples of circumstances which would amount to legitimate expectation

 The promise of hearing before the decision is taken may give rise to a legitimate expectation
that a hearing will be given.
 A past practice of consulting before the decision is taken may give rise to an expectation of
consultation before any future decision is taken
 A promise to confer, or past practice of conferring a substantive benefit, may give rise to an
expectation that the individual will be given a hearing before a decision is taken not to confer
the benefit.
 The actual enjoyment of the benefit may create a legitimate expectation that the benefit will
not be removed without the individual being given a hearing.

The existence of a legitimate expectation may have a number of consequences, such as

 It may give locus standi to a claimant to seek leave to apply for judicial review
 It may mean that the authority ought not to act so as to defeat that expectation justifiable cause
 It may also mean that before defeating a person’s legitimate expectation, the authority should
afford him an opportunity of making representation on the matter.

When a case of legitimate expectation is made out by the applicant, the Court will consider the prayer of
the applicant for grant of relief. The protection of legitimate expectation does not require the fulfillment
of the expectation where public interest requires otherwise. The court my uphold the decision taken by
the authority on the basis of the overriding public interest. Thus, protection of doctrine of legitimate
expectation and grant of relief in favour of the claimant are two distinct and separate matters and
presence of the former does not necessarily results the latter209.

209
Union of India v Hindustan Dev. Corpn (1993) 3 SCC 499

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The doctrine of legitimate expectation has its own limitations, thus as follows;

 The concept of legitimate expectation is only a procedural and has no substantive impact
In A.G. for New South Wales v Quin210, whereas the applicant was a stipendiary Magistrate in
charge of the Court of Petty Sessions. By an Act of Legislature that court was replaced by Local
Court. Though applied, Quin was not appointed under the new system. That action was
challenged. The court dismissed the claim observing that if substantive protection is to be
accorded to legitimate expectations, it would result in interference with administrative decisions
on merits which is not permissible.

 The doctrine does not apply to legislative activities

In R v Ministry of Agriculture211, conditions were imposed on fishing licences. The said action
was challenged contending that the new policy was against ‘legitimate expectations’. Rejecting
the argument and dismissing the sanction, the court held that the doctrine of ‘legitimate
expectation’ cannot preclude legislation.

 The doctrine of legitimate expectation does not apply if it is contrary to public policy or against
the security of State
In Council of Civil Service Unions v Minister for Civil Service212, the staff of Government
Communications Head Quarters (GCUQ) had the right to unionisation. By an order of the
government, the employees of GCHQ were deprived of this right. The union challenged the said
action contending that the employees of GCHQ have legitimate expectations of being consulted
before the Minister took action. Though in theory the House of Lords agreed with the argument
of the Union about legitimate expectations, it held that ‘the Security considerations put forward
by the Government – override the right of Union to prior consultation’.

Thus, from the discussion, it is clear that the doctrine of legitimate expectation in essence imposes a
duty to act fairly.

Finally, it is a fundamental principle of law that every power must be exercised within the four corners
of the law and within the legal limits. Exercise of administrative power is not an exception to that basic
rule. The doctrines by which those limits are ascertained and enforced from the marrow of
administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is
capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review213.
At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts
were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits),
the courts would assume jurisdiction to do the very thing which is to be done by administration. If
judicial review were to trespass on the merits of the exercise of administrative power, it would put its

210
(1990) 64 Aust LJR 327
211
(1991) 1 All ER 41
212
(1984) 3 All ER 935
213
Wade: Administrative Law, (1994)

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own legitimacy at risk214. It is submitted that following observations of Frankfurter, J. in Trop v Dulles215,
lay down correct legal position; ‘all power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial
Power is not immune against this human weakness. It also must be on guard against encroaching
beyond its proper bounds, and not less so since the only restraint upon it is self restraint216’.

8.5. Differences between Appeal and Review

 While an appeal challenge the decision on merits (whether the decision was right or
wrong), review challenges the legality of the decision (not merits of the case) e.g. excess
of power, abuse of power, improper procedure etc.
 Whereas appeal is a creature of the statute e.g the Appellate Jurisdiction Act of 1979,
the MCA, review is a prerogative remedy that the High Court has inherent jurisdiction.
The power is derived from the Constitution, S.2 of JALA
 While substitution on the merits of the decision follows an appeal, there is no
substitution on review
 The procedure for appeal is too general and not complicated as that of review where it
involves two stages, thus application for the leave of the court and application for
issuing prerogative oreders.
 While appeal can be exercised by any appellate court review is originally exercisible by
the High Court
 While appeal is a Constitutional right as per Article.13(6)(a), review is not a
Constitutional right but a discretionary right, therefore can be exercised when other
remedies are not available.
 While appeal applies to both public and private law, review applies to any public law
 Whereas appeal may be from a tribunal to a higher tribunal, to Minister, to a Court;
review is by the High Court on a decision of a subordinate authority.

IX: JUDICIAL AND OTHER REMEDIES

9.0. Introduction

Administrative law provides for control over the administration by an outside agency strong enough to
prevent injustices to an individual while leaving the administration adequate freedom to enable it to
214
A.G of New South Wales v Quin, (1990) 64 Aust LJR 327
215
(1958) 35 US 86
216
Ibid

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carry on effective Government217. Due to the increase of the governmental functions, administrative
authorities exercise vast powers in almost all fields218. Thus properly exercise of power of the executive
would lead to Welfare State, but abused they lead to the Totaritarian State219. Therefore without proper
and effective control an individual would be without remedy, even though injustice is done to him,
whereas it would be contrary to the fundamental concept of the English law and the legal system
adopted from English law that ‘ubi jus ibi remedium’ i.e where there is a right there is remedy. Thus, this
topic intend to exhaust varius remedies that a person can pursue in case of violation of his rights.

The remedies available to an individual aggrieved by any action of the administrative authority may be
classified as follows220:-

 Prerogative remedies
 Equitable remedies
 Other remedies

9.1. Prerogative Remedies

Meaning

The expression ‘prerogative writ’ is a writ specially associated with the King. Under the Common Law,
the sovereign was considered as the fountain of justice, therefore the Crown used to exercise
extraordinary and prerogative powers in the interest of justice221.

In England, the high prerogative writs played a very important role in upholding the rights and liberties
of subjects and in providing effective safeguards against arbitrary exercise of power by public
authorities222.

Since the right and remedy are viewed as two sides of the same coin and they cannot be disassociated
from each other. Therefore the object of the prerogative writs is to ensure that whenever an individual
is aggrieved by an illegal action of an authority, certain remedies are available to him223.

The qualifyng factor for a person to petition for prerogative orders is to be an aggrieved person,
whereas it includes a person whose rights has been infringed, relative of such person or close interested
person, however it should not be a total stranger to the issue concerned. The prerogative orders may lie
against the government, statutory bodies and persons charged with public duties.

9.1.1. Habeas Corpus

217
Garner: Administrative Law,1963, p.95
218
CK. Takwani: Lectures on Administrative Law, p289
219
Lord Denning: Freedom under the Law,1949, p.126
220
CK. Takwani: Lectures on Administrative Law, p289
221
Ibid
222
Ibid
223
Ibid

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This writ is one of the ancient writs known to the common law of England. The term ‘habeas corpus’
means ‘have the body’. It is an order issued by the High Court calling upon the person who has detained
another to produce the latter before the court, in order to let the court know on what ground he has
been confined and to set him free if there is no legal justification for the imprisonment or detention224.

The writ of habeas corpus provides a prompt and effective remedy against illegal restraints with the
principle aim as to provide a swift judicial review of alleged unlawful detention. If the court comes to the
conclusion that there is no legal justification for the imprisonment of the person concerned, the court
will pass an order to set him at liberty forthwith225.

An application for a writ of habeas corpus may be made by the person illegally detained. But if the
prisoner himself is unable to make such application, it can be made by any other person having interest
in the prisoner. Also a writ of habeas corpus may be issued against any person or authority who has
detained or arrested the prisoner.

The governing law relating to application of a writ of habeas corpus is the Criminal Procedure Act [CAP
20 R.E.2002]. Section.390 (1) of the CPA provides that

(1) The High Court may, whenever it thinks fit, direct–

(a) that any person within the limits of Mainland Tanzania be brought up before the court to be dealt
with according to law;

(b) that any person illegally or improperly detained in public or private custody within such limits be set
at liberty;

(c) that any prisoner detained in any prison situate within such limits be brought before the court to be
there examined as a witness in any matter pending or to be inquired into in such court;

(d) that any prisoner detained as aforesaid be brought before a court-martial or any commissioner
acting under the authority or any commission from the President for trial or be examined touching any
matter pending before such courtmartial or commissioner respectively;

(e) that any prisoner within such limits be removed from one custody to another for the purpose of trial;

(f) that the body of a defendant within such limits be brought in on a return of cepi corpus to a writ of
attachment.

The procedures as regarding on application for a writ of habeas corpus have been provided in the rules,
thus the Criminal Procedure (Habeas Corpus) Rules226, which provides among other things that the
application be made to the Judge in chambers exparte and supported with affidavit in triplicate, then
issuing of summons to the detaining authority. Pending the return to the summons the person
224
Ibid
225
Ghulam Sarwar v Union of India, AIR 1967 SC 1335
226
GN. No.150 of 1930

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detained may, if in public custody, be admitted to bail, and if in private custody be released on such
terms and conditions as the court may deem fit. At the hearing on the summons the applicant shall
begin, the party resisting the application shall then be heard and in such case the applicant shall be
entitled to reply.

Delay by itself in applying for a writ of habeas corpus does not disentitle the petitioner for the relief,
since the right of personal liberty is one of the fundamental rights guaranteed by the Counstitution of
the United Republic of Tanzania of 1977 as amended from time to time and therefore it cannot be
weived on such ground.

It is the duty of an authority whenever an action of detaining or arresting any individual is challenged, to
place before the court all relevant and material facts leading to the impugned action truly, faithfully and
with outmost fairness227.

Moreover, it is the duty of the court, whenever allegations are made that a person is in illegal custody,
to safeguard his freedom against any encroachment on life or liberty. The court is duty bound to strike a
balance between the need to protect community on one hand and the necessity to preserve the liberty
of the citizen on the other228.

It is important to note that a writ of habeas corpus when issued by the court which has compitent
jurisdiction must be obeyed by the person to whom it is issued, whereas a wilful interferance by the
person to whom it is issued would amount to contempt of a court and would be punishable accordingly.

SHEIKH MOHAMMAD NASSOR ABDULLA v THE REGIONAL POLICE COMMANDER, DAR ES SALAAM
REGION AND TWO OTHERS229

This was an application for directions in the nature of habeas corpus. The applicant was deported to
Zanzibar from Tanzania Mainland under an order by the President. The order which was made under
the Deportation Ordinance Cap. 38, was challenged in the High Court on the ground that the President
exceeded his powers under the Ordinance.

Held: (i) Section 2 of the Deportation Ordinance empowers the President to deport a person from one
part of the Territory to any other part of the Territory;

(ii) under section 3 of the Interpretation of Laws and General Clauses Act, 1972 the word
Territory means Tanganyika;

(iii) the President has no power under the Deportation Ordinance to order deportation of a
person from Tanzania Mainland to Zanzibar; therefore, the deportation order was illegal.

227
CK. Takwani: Lectures on Administrative Law, p289
228
Ibid
229
1985 TLR 1 (HC)

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9.1.2. Mandamus. See.S.17 of the Law Reform Cap.310

Mandamus means command. It is a prerogative writ for complelling performance of a public authority
asking it to perform a public duty imposed upon it by the Constitution or any other law. It is a judicial
remedy which is in the form of an order from a superior court to government, court, corporation or
public authority to do or to forbear from doing some specific act which that body is obliged under the
law to do or refrain from doing, as the case may be, and which is in the nature of a public duty in a
certain cases of a statutory duty230.

Distinction between Mandamus and other writs

 Mandamus differs from prohibition and certiorari in that while the former can be issued against
administrative authority, the latter are available against judicial and quasi – judicial authorities.
 Mandamus act where the authority declines jurisdiction; prohibition and certiorari act where
the courts and tribunals usurp jurisdiction vested in them or exceed their jurisdiction
 Where mandamus demands activity, prohibition commands inactivity

While mandamus compels, certiorari corrects.

For mandamus to be issued the following conditions must be present:-

 The petitioner must have a legally enforceable right against the party to whom he seeks to have
the writ issued. Also the right sought to be enforced must be subsisting on the date of the
petition.
In the Matter of an Application by mohamed Aslam Khan231, where Georges C.J held inter alia
that:-
“I am quite clear that no prima-facie right for the issue of a writ of mandamus as prayed for in
this case has been made out and in the circumstances I propose to refuse leave….in my view the
applicants have no legal enforceable right to demand that the police arrest and procesute
persons trespassing on their lands. The courts are equally open to the applicants to prosecute
criminally or sue civilly those who they claim have infringed their rights”.
 Legal duty. The applicant must have a right to the performance of a legal duty. A legal duty must
have been imposed on the authority and the performance of that duty should be imperative,
not discretionary or optional. Such a duty must be statutory i.e one imposed by the Constitution
or by any other statute, or by some rules of common law. More over if an authority is invested
with discretionary power abuses the power, or exceeds it, or acts malafide or there is non –
application of the mind by it, or irrelevant considerations have been taken into account, the writ
of mandamus can be issued232.

230
ibid
231
(1966) unreported H.C of Tanzania Misc. causse No.22
232
CK. Takwani: Lectures on Administrative Law, p.311

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 Demand and refusal: the petition for a writ of mandamus must be preceeded by a demandof
justice and its refusal. In Hulsbury’s law of England233, it is stated that:
“as a general rule the order will not be granted unless the party complained of has known what
it was he was required to do, so that he had the means of considering whether or not he should
comply, and it must be shown by evidence that there was a dinstinct demand of that which the
party seeking the mandamus desires to enforce, and that the demand was met by the refusal”
 Good faith: an application for mandamus must have been made in good faith and not any
ulterior motive or oblique purpose. A petition for mandamus albeit made in good faith, will not
be granted if designed to harsrass the respondent or with a view to wreak personal
grievances234.
 Whether a case is of class of cases in which an order against the State or any of its servants can
be made. To fall in the class of casesin which an order against the State can be made, a case
must be one when officials have the duty to perform and that duty being imposed by common
law or statute and being owed to the public.
In the case of Shah v A.G. Uganda235, leave was granted to apply for an order of mandamus
directed to the Tresury Officer of Accounts and/or the officer on special duty (finance) Buganda
affairs, Ministry of regional administration, to pay the applicant a decretal amount in Civil Suit
No.336 of 1968, wherein the present applicant was successful plaintiff and the present
respondent the defendant. Goudie J held inter alia that:
“it seems to me to be an illogical argument that the government Accounting officer can not be
compelled to carry out statutory duty specifically imposed by parliament out of funds which
parliament itself has said shall be provided for the purpose….what the applicant is seeking is not
relief against the Government but to compel a Governmental official to do what the Government
throught the parliament, has directed him to do”

Also according to Alfred Lakuru v Town Director Arusha236, conditions precedent to issue the order of
mandamus includes;

 Existence of legal duty

 The duty must be public
 Right must be in applicant
 Application must be made in good faith
 Demand for performance must precede application
 There must exist the posibility of enforcement
 There must be no other remedy

John Mwombeki Byombalirwa v Regional Commissioner and Regional Police Commender Bukoba237

233 rd
3 Edition Vol.13,p106
234
Ibid
235
(1970) E.A. 543 (H.C of Uganda)
236
[1980] TLR 326

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The applicant was one of suspected economic saboteurs. He was arrested in March 1983 and a
substantial part of his property valued at Shs.11,675,680/= was seized (excluding beer and Konyagi). He
was charged with hoarding property but the special tribunal acquitted him and ordered that the seized
property be restored to the applicant. The government officials involved did not comply with the order
hence the application for an order of mandamus to issue.

Held:

(i) Five conditions must be proved in order for an order of mandamus to issue:

(a) the applicant must have demanded performance and the respondents must have
refused to perform;

(b) the respondents as public officers must have a public duty to perform imposed on them
by statute or any other law but it B should not be a duty owed solely to the state but should be a duty
owed as well to the individual citizen;

(c) the public duty imposed should be of an imperative nature and not a discretionary one;

(d) the applicant must have a locus standi, that is he must have sufficient interest in the
matter he is applying for;

(e) there should be no other appropriate remedy available to the applicant;

(ii) in this application all the five conditions have been proved;

(iii) the applicant deserves an immediate order for redress because the injustice already done to
him is substantial and unwarranted.

JIMMY DAVID NGONYA v NATIONAL INSURANCE CORPORATION LTD238

The applicant was dismissed from employment as a branch manager of the respondent corporation. The
Board of Directors dismissed him 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 deliberate on 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 applied for certiorari
and mandamus arguing that his dismissal was in contravention of the rules of natural justice.

Held:

237
[1986] TLR 73
238
1994 TLR 28 (HC)

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(i) Since the audit report was prejudicial to the interests of the applicant and it formed the
basis of the decision of the Board, it ought to have been shown to the applicant for his comments and
for an opportunity to contradict its contents; failure to do that contravened the right of the applicant to
be heard;

(ii) Since the General Manager, who was in the nature of a prosecutor, was present during
the deliberations of the Board which dismissed the applicant, the proceedings of the Board were
vitiated by bias.

TANZANIA AIR SERVICES LIMITED v. MINISTER FOR LABOUR, ATTORNEY GENERAL and THE
COMMISSIONER FOR LABOUR239

The applicant company, aggrieved by the decision of the Labour Conciliation Board re-instating an
employee whose services had been terminated, referred the matter to the Minister for Labour under
s 26 of the Security of Employment Act 1964, Cap 574. The Minister lawfully delegated his power to deal
with the reference to the Commissioner for Labour who confirmed the decision of the Conciliation
Board but gave no reasons at all for reaching that decision. Section 27(1) of the Act stated that the
decision of the Minister was final and conclusive. The applicant sought an order of certiorari to quash
that decision contending that the failure to give reasons rendered the decision a nullity.

Held:

(i) Under common law there is no general requirement that public authorities should give
reasons for their decisions but that position has been under criticism;

(ii) The interests of justice call for the existence, in common law, of a general rule requiring
public authorities to give reasons for their decisions;

(iii) Under s 2(2) of the Judicature and Application of Laws Ordinance, Cap 453, the High
Court has power to vary the common law to make it suit local conditions; the conditions of the people
of Tanzania make it a fundamental requirement of fairplay and justice that parties should know at the
end of the day why a particular decision has been taken;

(iv) The provision that the Minister's decision is final and conclusive does not mean that the
decision cannot be reviewed by the High Court; indeed no appeal will lie against such a decision but an
aggrieved party may come to the High Court and ask for prerogative orders;

(v) Quashing the Labour Commissioner's decision and letting the matter lie there will be
unsatisfactory as it will leave in force the decision of the Conciliation Board; an order of mandamus,

239
1996 TLR 217 (HC)

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therefore, can be issued by the High Court invoking its inherent powers notwithstanding that there is no
prayer for the same;

(vi) To ensure that justice is done and also it is seen to be done the order of mandamus
should be directed to the Minister himself, not the Commissioner for Labour.

9.1.3. Prohibition

It is another judicial writ which can be issued against ajudicial or quasi – judicial authority when such
authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. The High Courtcan
preventi the subordinate authority when such authority hears a matter over which it has no jurisdiction.
It was observed in the case of East India Commercial Co. v Collector of Customs240, that ‘a writ of
prohibition is an order directed to an inferior Tribunal forbidding it from countinuing with a proceeding
therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of
the land, statutory or otherwise’

Distinction between Prohibition and other writs

 Prohibition and certiorari are all judicial writs and are against courts and tribunals, however,
prohibition differs from certiorari in the respect that the former seeks to prevent tha fait from
becoming accompli while tha lattere applies to a decision which is fait accompli
 Prohibition differs to mandamus in that, while mandamus compels the authority to do
something, prohibition prevents a court or tribunal from doing something which it has no
jurisdiction to do so.

Grounds for prohibition to be issued:

 Absence or excess of jurisdiction

In case of absence or total lack of jurisdiction, writ of prohibition would be available against a
judicial or quasi – judicial authority prohibiting it from exercising jurisdiction not vested in it. It
should be noted however, such absence or lack of jurisdiction should be patent and apparent on
the face of record and should not be latent and should not ordinarily reqiure for its
establishment a lengthy qnquiry into the question of fact. Similarly, a distinction must be drawn
between lack of jurisdiction and the manner or method of exercising jurisdiction vested in a
court or tribuna241l. prohibition cannot lie to correct the course, practice or procedure of an
inferior court or a tribunal or against a wrong decision on the merits. Therefore, when a tribunal
has a jurisdiction to make an order, but in exercise of that jurisdiction, it commits a mistake

240
AIR 1962 SC 1893
241
CK. Takwani: Lectures on Administrative Law, p.316

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whether of fact or law, the said mistake can only be corrected by an appeal or revision and not
by a writ of prohibition242

 Violation of natural justice

A writ of prohibition can also be issued when there is violation of the principles of natural
justice. In fact, if the principles of natural justice have not been observed, e.g. if there is bias or
prejudice on the part of the Judge or if no notice was issued or hearing given to the person
against whom the action is sought to be taken, there is no jurisdiction vested in the court or
tribunal to proceed with such matter243.

 Unconstitutionality of the statute

A writ of prohibition can be issued if a court or tribunal proceeds to act under the law which is
ultra vires or uncinstitutional

 Infringment of Fundamental rights

Moreover, prohibition can be issued where the impugned action infringes the fundamental
rights of the petitioner. See Article 13 – 29 of the Constitution of United Republic of Tanzania,
1977 as amended.

Who may apply: where the defect of jurisdiction is apparent on the face of the proceedings, an
appliocation for prohibition can be brought not only by the aggrieved party but also by a stranger. The
principle underlaying this rule is that usurpation of jurisdiction is contempt of the Crown and an
encroachment upon royal prerogative. Consequently it is immaterial by whom the court is informed
about the usurpation244.

Against whom prohibition would lie: a writ of prohibition being a judicial writ, it may be issued against
courts, tribunals and other quasi-judicial authorities, such as Tax authorities, labour adjudicative
institutions.

Against whom prohibition does not lie: prohibition, does not lie against administrative authorities from
discharging adminstrative, executive or ministerial functions. Also would not lie against legislature
restraining it from enacting or enforcing a law245

Alternative remedy: prohibition is not a writ of course but it is a writ of right and not discretionary. The
existence of another alternative, adequate and equally efficacious remedy is a matter which may be
taken into consideration by the high Court in granting a writ of prohibition. But the existence of an
alternative remedy is not an absolute bar to an issuance of a writ of prohibition246.

242
Ibid
243
Hari Vishnu Kamath v Ahmed Ishaque, AIR 1955 SC 233
244
Worthington v Jeffries, (1875) LR 239
245
CK. Takwani: Lectures on Administrative Law, p.317
246
Ibid

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Limits of prohibition

 The object of the writ of prohibition is to prevent unlawful assumption of jurisdiction. Therefore,
it can be issued only when it is proved that the judicial or quasi – judicial authority has no
jurisdiction or it acts in excess of jurisdiction vested in it. Prohibition can not lie in cases where
such authority having jurisdiction exercises it irregularly, improperly or erroneously247.
 A writ of prohibition can lie only in cases where the proceedings are pending before a judicial ar
quasi – judicial authority. Thus, when such authority hears a matter over which it has no
jurisdiction, the aggrieved person may move a High Court for the writ of prohibition forbidding
such authority from proceeding with the matter. But if the proceedings have been terminated
and such authority has become functus oficio, a writ of prohibition would not lie248, thus the
remedy available in such circumstance would be a writ of certiorari.

9.1.4. Certiorari

Certiorari is a latin term which means ‘to certify’. Its original use was the requirement of the judges on
any inferior court of record to certify the record of any matter in that court with all things touching the
same and to send it to the King’s Court to be examined. Therefore, it is an order issued by the High Court
to an inferior court or any authority exercising judicial or quasi – judicial functions to investigate and
decide the legality and validity of the orders passed by it249.

The object of certiorari is to keep inferior courts and quasi – judicial authorities within the limits of their
jurisdiction; and if they act in excess of their jurisdiction their decisions can be quashed by superior
courts by issuing this writ250.

Distinction between certiorari and other writs

 A writ of habeas corpus reaches the body and not the records. A writ of certiorari always
reaches the record but never the body
 Certiorari differs from mandamus in that while mandamus acts where the tribunal declines
jurisdiction, certiorari acts in cases of usurpation or excess of jurisdiction.
 Certiorari corrects while mandamus compels to act
 Whereas certiorari can be issued against judicial or quasi – judicial authorities, mandamus is
available against administrative authorities also.

Conditions for issuing Certiorari.

247
Narayana Chetty v ITO, AIR 1959 SC 213
248
Hari Vishnu Kamath v Ahmed Ishaque, AIR 1955 SC 233
249
Prabodh verma v State of U.P. (1984) 4 SCC 251
250
Basappa v Nagappa, AIR 1954 SC 440

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In R v Electricity Commissioners251, Lord Atkin obseved: ‘whenever any body of persons having legal
authority to determine qustions affecting the rights of sujects and having the duty to act judicially,
act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s
Bench Division exercised in these writs. Thus from these observations, it becomes clear that a writ of
certiorari (and prohibition) can be issued if the following conditions are fulfilled;

 The judicial or quasi – judicial body must have legal authority

 Such authority must be an authority to determine questions affecting righs of subjects;
 It must have duty to act judicially; and
 It must have acted in excess of its authority

Grounds

 Error of jurisdiction
When an inferior court or tribunal acts without jurisdiction, in excess of its jurisdiction or fails to
exercise jurisdiction vested in it by law, awrit of certiorari may be issued against it.
In R v Minister for Transport252 even though the Minister was not empowered to revoke the
licence he passed an order of revocation of licence. The order was quashed on the ground that it
was passed without jurisdiction and therefore ultra vires.

 Error apparent on face of record

If there is an error of law which is apparent on the face of record a decision of an inferiror court
or tribunal may be quashed by a writ of certiorari. But such an error must be manifest or patent
on the face of the proceedings and should not require to be established by evidence.

 Violation of natural justice

A writ of certiorari can be issued when there is violation of the principles of natural justice. That
is to say if forexample the judicial authority reaches a decision without giving the part affected
with that decision a right to present its case (right to be heard0 or if the authority is biased then
that would be enough ground for a writ of certiorari to issue.

Who may apply: normally the whose rights are affected may apply for a writ of certiorari. But if the
question affects the public at large, any person may apply.

Against whom certiorari would lie: a writ of certiorari is a judicial writ, it lies against subordinate courts,
inferior tribunals, quasi-judiacial bodies and adjudicating authorities.

Alternative remedy: a writ of certiorari is a discretionary remedy and the fact the the aggrieved party
has another adequate remedy may be taken into consideration and it may not be issued on that ground.

251
(1924) 1KB 171
252
(1984) 1 KB 227

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In R v Hilingdon London Borough Council Exparte Royco Homes Ltd, Lord Widgery C.J. said ‘it has been
a principle that certiorari will go only where there is no other equally effective and convinient remedies..’

Where applicant is some how blamable: the writ of certiorari may not issue where the applicant is
some how blamable for what has transpired. For example if there is unreasonable delay by the
applicant.

In the case of R v Stafford253, it was held that a remedy may be refused in the application if the applicant
had delayed unreasonably before applying or if his conduct has been unreasonable. In this case a fire
man disobeyed an order to clean a superior officer’s uniform which he claimed was unlawful. He
subsequently sought a writ of certiorari to quash the decision to caution him for disciplinary offence
alleging breach of natural justice. Singleton L.J said that, his disobidience was exraordinarily foolish
conduct he should have obeyed the oreder and made a complaint later through the procedure laid
down by regulations.

Where the effect may not be practically useful or may have undiserable consequences: the writ of
certiorari may not be issued where even if issued it will not be useful or may result into undiserable
consequences. In the case of R v Stafford254 it was held inter alia that the remedy may be refused if no
purpose would be served as where the proceedings of a tribunal are not only void but absolutely and
manifestly void.

Where the applicant seeks to protect a priviledge not a right: in R v Gaming Board for Great Britain
exparte Benaim and Khaida255, the decision of the board in refusing the applicants gaming license was
upheld even though they have not been given reasons for the refusal or notified of the case they had to
answer. Lord Denning explained that if a man seeks a prevelege to which he has no particular
claim…then he be turned down without a word. He need not be heard. No explanation need be given.

Where the applicant has no locus stand: where the applicant applying for a writ of certiorari had no
locus stand in the matter decided upon the writ of certiorari may not be issued. Lord Denning in the case
of R v Liverpool Corporation, said that, the writ of certiorari issues on behalf of any person aggrieved
and that includes any person whose interests may be prejudicially affected by what is taking place. It
does include a mere busy body who is interfering in things which do not concern him but done or may
be done which affects him.

It is important to note that a writ of certiorari can never be issued to call for the record of papers and
proceedings of an Act or Ordinance and for quashing such Act or Ordinance.

STEPHEN KIBERENGE AND OTHERS v REPUBLIC256

253
(1940) 2 KB 33
254
Ibid
255
(1970) 2 QB 417
256
1986 TLR 6 (HC)

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Mwalusanya, J.: This was an 'inquiry' under s.15(1)(b)(iii) of the Stock Theft Ordinance Cap. 422 made
by the Serengeti District Court to determine as to whether the members of Machochwe village were
sheltering cattle thieves or otherwise assisting some cattle thieves. Some 497 head of cattle had been
stolen from Nyamburi village in the same District on 5/10/1985 and on following the trail the same
disappeared at Machochwe village. At the end of the day the trial magistrate held that indeed the
members of Machochwe village were guilty of sheltering cattle thieves and so the seizure of cattle from
that village to compensate the complainants from Nyamburi village was justified.

I have already pointed out my qualms in Criminal Appeal No. 107/86 over the manner the trial
magistrate conducts these type of 'inquiries', and it leaves much to be desired. First of all the procedure
of charging the representatives from the offending village with the offence of cattle theft is wrong.
When you conduct an inquiry you don't charge anybody. All you have to do is give enough opportunity
to both sides to be heard. And what is worse is charging them under a non-existent offence. It is absurd
and I say so because it is common knowledge that s. 268(1) of the Penal Code Cap. 16 under which they
were partially charged, has been repealed by Economic and Organised Crime Control Act No. 13 of 1984.
It is hoped that the trial magistrate will in the future endeavour to appraise himself of the correct
manner of holding 'inquiries' under the Stock Theft Ordinance.

Now the pertinent question is as to whether in spite of all the misgivings I have just raised, the order or
decision of the trial magistrate is appealable or not. It is my finding that the decision is not appealable,
just as I so held in Stephen s/o Kiberenge and others v R: Crim. Appeal No. 107 of 1986 (unreported). My
holding stems from s.15(6) of the Stock Theft Ordinance Cap. 422 which provides:

'An Order of a magistrate under this section shall be final'.

That is interpreted to mean that an order of the magistrate is not appealable.

However following the reasoning in the decision of the Court of Appeal in England in Re Ex-parte
Gilmore: [1956] 1 G Q.B.574 and that of the High Court of Kenya in Re Marles' Application: [1958] E.A
153 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.

In the event the appeal fails and it is dismissed.

ALHAJI A J MUNGULA v BARAZA KUU LA WAISLAM WA TANZANIA257

Mapigano J.: The applicant was the Executive Secretary of the Baraza Kuu La Waislam Wa Tanzania
(Bakwata) up to February, 1996 when he was given the sack. He has described Bakwata as an
incorporated religious organization whose objective is to promote the Islamic faith.

257
1997 TLR 50 (HC)

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He has deposed to having heard his removal from office being broadcast on Radio Tanzania on 25
February 1996, and to having read an article run by the Daily News of next day on the same subject. He
has also deposed to the fact that his removal came to him as a complete surprise, as he had not been
afforded any opportunity of being heard before the action was taken. Assuming, as I must do for the
purpose of the instant application, that these depositions are true, then his complaint that natural
justice has not been done to him is well grounded. He is seeking leave to apply for an order of certiorari
to quash the decision of Bakwata.

The issue arises as to whether Bakwata is a body that is subject to judicial review. On behalf of the
applicant, Mr Mkoba, learned advocate, says that Bakwata is such a body and his argument is on the
following lines: 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.

I accept Mr Mkoba's submission as correctly stating the current state of the law. Mr Mkoba has referred
this Court to the case of R v Panel on Take-Overs and Mergers (1), decided by the Court of Appeal of
England, and it is unnecessary for me to say with what profound respect I regard any judgment or
observation of that Court. In that case counsel for the Panel had submitted that review jurisdiction only
extends to bodies whose power is derived from legislation or the exercise of the prerogative. The
argument on behalf of the applicant was that that view is too narrow, and that regard has to be had not
only to the source of the body's power, but also to whether it operates as an integral part of a system
which has a public law character, and is supported by public law in that public law sanctions are applied
if its edicts are ignored, and performs what might be described as public law functions. The Court of
Appeal went along with the applicant's argument and held, vide the headnote, that:

`In determining whether the decisions of a particular body were subject to judicial review, the court was
not confined to considering the source of the body's powers and duties but could also look to their
nature. Accordingly, if the duty imposed on a body, whether expressly or by implication, was a public
duty and the body was exercising public law functions, the court had jurisdiction to entertain an
application for judicial review of that body's decisions.'

In the course of his judgment Donaldson MR looked back at what had been judicially decided in the last
two decades or so. He observed, and I think it also bears repeating here, that:

`The requirement that the body should have a duty to act judicially was deleted in O'Reilly v
Mackman [1982] 3 All ER 680; and in Council of Civil Service Unions v Minister for the Civil Service [1984]
3 All ER 935, the supervisory jurisdiction of the Court was extended to a person exercising purely
prerogative power; and in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 All ER 402,
Lord Fraser and Lord Scarman expressed the view obiter that judicial review would extend to guidance
circulars issued by a department of state without specific authority.'

He went on to observe at 577 that:

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`In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it
is a fatal error to regard the presence of all those factors as essential or as being exclusive of other
factors. Possibly the only essential elements are what can be described as a public element, which can
take many forms, and the exclusion from the jurisdiction of bodies whose source of power is consensual
submission to its jurisdiction.'

And therein lies the obstacle to the present application.

It is wrong for Mr Mkoba to contend that Bakwata discharges public functions. Mr Mkoba would have
this Court accept, but I cannot, that Bakwata officiates marriage ceremonies and that it is legally
charged with the function of conciliating matrimonial difficulties. Mr Mkoba seems to be unaware that
the statue has been amended. Even supposing that Bakwata were still performing such functions, 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
functions, 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.

In these circumstances I feel bound to conclude that this application is misconceived. It is accordingly
refused.

9.1.5. Quo Warranto

It literally means ‘what is your authority’. It is a judicial remedy against an occupier or usurper of an
independent substantive public office, franchise or liberty. By issuing this writ the person concerned is
called upon to show to the court by what authority he holds the office, franchise or liberty. If the holder
has no authority to hold the office he can be ousted from its enjoyment. On the other hand, this writ
also protects the holder of a public office from being deprived of that to which he may have a right258.

The procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive
action in the matter of making appointments to public offices against the relevant statutory provisions
and it also protects a citizen from being deprived of public office to which he may have a right259.

Quo warranto distinguished from other writs260

 A writ of habeas corpus reaches the body while the writ of quo warranto reaches an office,
franchise or liberty.

258
University of Mysore v Govinda Rao, AIR 1965 SC 491
259
Ibid
260
CK. Takwani: Lectures on Administrative Law, p.325

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 While mandamus is a command to a person or a body under a duty to do something which is his
or its legal duty, quo warranto is a proceeding by which a person is asked to state by what
authority his claim to a particular office.
 Certiorari lies against subordinate courts and inferior tribunals, quo warranto is directed against
an occupier of a public office
 Prohibition seeks to prevent a court or a tribunal from exercising or exceeding its jurisdiction
which is not vested in it, quo warranto seeks to prevent an occupier of an office which is of
public nature.

Conditions

The following conditions must be fulfilled before a writ of quo warranto can be issued

 The office must be of public nature, i.e. an office which the public has an interest. Therefore
before the writ can be issued the court must be satisfied that the office in question is a public
office and the holder thereof has no legal authority to hold the said office. This writ will not lie
against an office of a private nature, e.g. managing committee of a private school.
 The office must be of a substantive character. This means it must be an independent office. The
holder of such office must be an independent official and not a merely a deputy or servant of
the others
 The office must be statutory or constitutional. Therefore a writ of quo warranto may be issued
in respect of the offices of Prime Minister, Attorney General, Judge of the High Court, Director of
Public Prosecution etc
 The holder must have asserted his claim to the office.

Who may apply: an application for a writ of quo warranto challenging the legality and validity of an
appointment to a public office is maintanable at the instance of any private person even though he is
not personally aggrieved or interested in the matter since the object of the writ is to prevent a person
who has wrongfully usurped a public office from continuing in that office261.

9.2. Equitable remedies

Generally, prerogative remedies are available to the aggrieved persons against any arbitrary action of
the administrative authorities. The issuing of these writs is an extraordinary remedy and is subject to
courts discretion, thus in these circumstances ordinary equitable remedies can be obtained against the
administration262.

9.2.1. Declaration

In a declaration action, the rights of the parties are declared without giving any further relief. The
essence of a declaratory judgment is that it states the rights or the legal position of the parties as they

261
Ibid
262
Ibid

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stand, without altering them in any way though it may be supplimented by other remedies in suitable
cases. A declaratory judgment requires no one to do anything and to disregard it will not amount to
contempt of court263. The power of the court to render a purely declaratory judgment is particularly
valuable in cases where a legal dispute exists but where no wrongful act entitling either party to seek
coercive relief has been committed. Therefore by making an order for declaration of the rights of the
parties the court is able to settle the issue at a stage before the status quo is disturbed, thus
inconviniences and the prolongation of uncertainity are avoided264.

Moreover, the declaratory power of the court has its importance in the field of administrative law,
whereas a public auhtority may be uncertain of the scope of the powers which it wishes to exercise but
which are disputed by another party and thus facing the dilemma of action at the risk of exceeding its
powers or inaction at the risk of failing to discharge its responsibilities. Thus,it has to be able to obtain
the authoritative guidance of the court by bringing a declaratory action265.

The distinction as between a declaratory order and other judicial order lies in the fact that while the
latter is enforceable, the former is not. Also the object of declaratory relief is the removal of the existing
controversy and to avoid chances of future litigation.

In Tanzania, a declaratory order can be sought vide Order XXXVII, Rule 1 of the Civil Procedure Code266,
which states as follows:-

1. Cases in which temporary injunction may be granted or declaratory order made

Where in any suit it is proved by affidavit or otherwise–

(a) that any property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit of or suffering loss of value by reason of its continued use
by any party to the suit, or wrongly sold in execution of a decree; or
(b) that the defendant threatens, or intends to remove or dispose of his property with a
view to defraud his creditors,

the court may by order grant a temporary injunction to restrain such act or make such
other order for the purpose of staying and preventing the wasting, damaging, alienation,
sale, loss in value, removal or disposition of the property as the court thinks fit, until the
disposal of the suit or until further orders:

Provided that an order granting a temporary injunction shall not be made against the
Government, but the court may in lieu thereof make an order declaratory of the rights of
the parties.

Patiman Garmets Industries v Tanzania Manufacturers267

263
Wade: Administrative Law,1994,p591
264
De Smith: Judicial Review of Administrative Action,1995,p735
265
Ibid
266
[CAP.33.R.E.2002]
267
(1981) TLR 303

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Both the appellant, Patman Garmrnts Industries Ltd. and the respondent, Tanzania Manufacturers Ltd.,
claim to be the lawful occupiers of a piece of land described variously as Plot No. 154 or Plot No. 94
which is situated at Kipawa Industrial Area within the city of Dar es Salaam. The respondents based their
claim to the land on a certificate of Right of OCcupancy issued to them either on 1st April 1978 or 29th
May 1978 by the Directorate of Land Development Services. The offer of the right of occupancy to the
land was communicated to them on 29th May 1978 and was accepted on the same day. The appellants
claim that they secured the offer of right of occupancy on 24th January 197H and accepted it on 25th
January 1978. However on 5th February 1979 there was a revocation of the right of oa;upancy granted
to the appellant. The High Court found that the right of occupancy granted to the appellant was proper
in law but went further to discuss whether the court had power to impugn the validity of the order of
the president to revoke a right of occupancy. The appellant was dissatisfied with that decision hence this
appeal.

The Court of Appeal stated that;-

“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. We quash the decree of the
High Court and declare that the decision made by the President revoking the appellant
Company's grant of a right of occupancy over Plot No. 94 Kipawa Industrial Area, Dar es
Salaam, was unlawful and, therefore, null and void. We declare Patman Garments Industries
Limited are the rightful owners of the right of occupancy over Plot No. 94 L.O. No., 46100.”

Thus it wa held:-

(i) though the President has power under s.10(1) of the Land Ordinance to revoke any grant of right of
occupancy for good cause he cannot do so unless the conditions prescribed by law for its exercise are
fulfilled;

(ii) the courts have power to review administrative action made with reference to executive functions of
the President under the Land Ordinance if he has acted either improperly or mistakenly;

(iii) the decision made by the President revoking the right of occupancy in this case is bad in law because
it was made for no good cause and therefore was unlawful;

(iv) the distinction of the power of the President to be either executive, judicial or quasi-judicial is no
longer valid.

9.2.2. Injunction

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Injunction is an order of a court addressed to a party to proceedings before it, requiring it to refrain
from doing, or to do, a particular act268. It is a judicial process by which one who has invaded or
threaten to invade the rights, legal or equitable, of another, is refrained from continuing or commencing
such wrongful act269. Types of injunction are prohibitory and mandatory injunctions.
Generally, injunction is a negative remedy and in administrative law, is granted when an administrative
authority does or purports to do anything ultra vires. But in some cases the remedy may be positive and
a mandatory in nature and an administrative authority may be ordered to do a particular act which is
bound to do. However, mandatory injunctions are rere, and in particular they play little party in public
law because there is a special procedure for encforcing the performance of a public duty in the
prerogative remedy of mandamus270
It is important to note that in Tanzania an order for injunction does not lie against the Government but
the declaration order as per Order XXXVII, Rule.1 of CPC.

9.3. Other remedies

 Parliamentary remedy: an aggrieved person to move a motion through the Member of the
Parliament against the action of the administration.
 Self help: the act of an aggrieved person of resisting an illegal or ultra vires order of the
authority.
 Ombudsman (lecture IX.B)
 Common law remedy: liability of the Government for the breach of contract and tortious
actions of its servants and employees. (lecture X)

268
De Smith: Judicial Review of Administrative Action,1995,p.705
269
Wade: Administrative Law,1994,p581
270
Ibid

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IXB: OMBUDSMAN: THE COMMISSION FOR HUMAN RIGHT AND GOOD GOVERNANCE

9B.0. Introduction

Ombudsman is an office established by the constitution or statute headed by an independent high-level

public official who is responsible to the legislature or parliament whose duty is to receive complaints
from aggrieved persons against government agencies, officials and employer or who acts on his own
motion and has the power to investigate and recommend corrective action and issue a report.

Ombudsman connotes a delegate organ, officer or commissioner charged constitutionally or legally with
responsibilities of streamlining heavals that may arise between the government and the citizens as a
result of commision or ommision in the governmental administrative manipulations.

The word ‘ombudsman’ which literally means ‘public prosecutor’ originates from Scandnavian countries,
whereas this institution started in Sweden in 1809 and thereafter it has been accepted in other
countries. In general language refers to an agency or official appointed to investigate individual
complaints against public authorities.

In Tanzania the Constitution provides the establishment of the ombudsman under Article. 129 of the
United Republic of Tanzania Constitution, 1977, which is the Commission for Human Right and Good
Governance. Article 131 of the Constitution authorises the Parliament to enact a law to facilitate the
functioning of the ombudsman. The enacted law in this regard is the Commission for human Right and

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Good Governance Act of 2001 which repealed and replaced the Permanent Commission of Enquiry Act
of 1966.

9B.1. Composition of the Commission S.7 of the Act

The Commission consists of a Chairman, a Vice Chairman, and not more than five Commissioners and
Assistant commissioners. A chairman must be a person qualified for appointment as a jugde of the High
Court or a judge of the Court of Appeal. If a chairman hails from one part of the united Republic, then
the vice chairman must be a person who hails from another party of the Union. This is a union matter.

For a person to qualify to be appointed as commissioner or assistant commissioner, he must be of

highest reputation and is known for his high morality, integrity, impartiality and competence in matters
of human right and good governance. Members of the committees are appointed by the President. They
hold office for a period of three years and are eligible for re-appointment for a second term not
exceeding three years as per Section 8(1) of the Act. A commissioner must retire upon attaining the age
of 65 years, Section.8(2) of the Act. A commissioner may resign his office upon giving one month notice
in writing to the President.

9B.2. functions of the Commission, S.6 of the Act

 to promote within the country the protection and the preservation of human rights and of
duties to the society in accordance with the Constitution and the laws of the land;
 to receive allegations and complaints in the violation of human rights generally;
 to conduct enquiries into matters involving the violation of human rights and the contravention
of the principles of administrative justice;
 to conduct research into human rights, administrative justice and good governance issues and to
educate the public about such issues;
 when necessary, to institute proceedings in court designed to terminate activities involving the
violation of human rights or redress the right or rights so violated, or the contravention of the
principles of administrative justice;
 to investigate the conduct of any person to whom or any institution to which the provisions of
this section apply in the ordinary course of the exercise of the functions of his office or discharge
of functions in excess of authority;
 to investigate or inquire into complaints concerning practices or actions by persons holding
office in the service of the government, public authorities or other public bodies, including
private institutions and private individuals where those complaints allege abuse of power,
injustice, unfair treatment of any person, whether complainant or not, in the exercise of their
official duties;
 to visit prisons and places of detention or related facilities with a view to assessing and
inspecting conditions of the persons held in such places and making recommendations to
redress the existing problems in accordance with the provisions of this Act;

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 to take steps to secure the remedying, correction, reversal or cessation of instances referred to
paragraphs (e), (f), (g) or (h) through fair, proper and effective means, including the institution
of legal proceedings;
 to provide advice to the government and to other public organs and private sector institutions
on specific issues relating to human rights and administrative justice;
 to make recommendations relating to any existing or proposed legislation, regulations, or
administrative provisions to ensure compliance with human rights norms and standards and
with the principles of good governance;
 to promote ratification of or accession to treaties or conventions on human rights,
harmonization of national legislation and monitor and assess compliance, within the United
Republic, by the government and other persons, with human rights standards provided for in
treaties or conventions or under customary international law to which the United Republic has
obligations;
 under the auspices of the government, to cooperate with agencies of the United Nations, the
OAU, the Commonwealth and other bilateral, multilateral or regional and national institutions of
other countries which are competent in the areas of protection and promotion of human rights
and administrative justice;
 to take such measures as may be appropriate for the promotion and development of mediation
and reconciliation amongst the various persons and institutions who come or are brought
before the Commission;
 to perform such other functions as may be provided for by any other written law.

9B.3. Status, Power and Competence of the Commission

The commission is a public department, a public office by virtue of S.13 of the Act. It is an independent
department whereas in performing its functions and duties is not sublected to the direction or control of
any authority as per S.14 of the Act. The commission has the power to investigate any human rights
abuses or malaadministration on its own motion or upon receipt of a complaint or allegation by an
aggrieved person, an association acting on the interest of the group or class of persons, S.15(1) of the
Act.

After conducting an investigation, the commission has the power to promote negotiation and
compromise between the parties concerned or to report the matter to the appropriate authority or
persons having the control over the person in respect of whose act or conduct an investigation has been
carried out by the commission or recommend to the relevant person or authority such measures as will
provide an effective settlement remedy which may be available from the court. S.15 (3) of the Act.

S.16 of the Actprovides for limitation and restrictions on investigations, i.e. it provides the boundaries
beyond which the commission is not authorised to extend its duties. For example it cannot investigate
or institute proceedings against the President, it cannot investigate an matter which is pending before
the court of law or other judicial tribunal. The President is empowered to direct the commission to stop
carrying out the investigation, S.16 (3) (4) of the Act.

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The decision of the commission has the status of the recommendation to the appropriate authority or
person having control over the person in respect of whose act or conduct an investigation has been
carried out, S.17(1) of the Act.

The proceedings of the commission and its decision are privileged in the same manner as the
proceedings of the court, S.17 (2) of the Act.

No proceedings can lie against the officers of the commission for anything done or ommitted to be done
in good faith in the exercise of their duties, but if done malafide, proceedings can lie agaist them, S.17
(3) (4) of the Act.

A witness before the commission enjoys the same privileges as a witness in the High Court, S.17 (7) of
the Act

S.19 of the Act requires the commission to ensure confidentiality of an enquiry. During hearing, the
commission has power to determine its own procedure. It is bound to observe the rules of natural
justice. It is not bound to any legal or technical rules or evidence applicable before the court.

If the members present, constitutes a quoram, adecision of the majority of the members present is the
decision of the commission. In the event of any equality of the votes on any matter, the member
presiding shall have a casting vote in addition to his deliberately vote, S.20 of the Act.

X: LIABILITY OF THE GOVERNMENT

10.0. Introduction

From beginning it was considered that the Government cannot be held liable in whatsoever. The maxim
that the ‘King can do no wrong’ was maintained for so long. However due to the increase of State
functions as for the shift from leissez fare to welfare State, the perception of holding Government not
accountable for wrongs committed seem to vanish. Therefore the immense expansion of governmental
activities from the latter part of 19th Century onwards made it intolerable for the Government, in the
name of Crown, to enjoy exemption from the ordinary law271.

In England, in the eyes of law the Government was never considered as an ‘honest man’272, therefore it
was considered that it is fundamental to the rule of law that the Crown, like other public authorities,
should bear its fair share of legal liability and be answerable to the wrongs done to its subjects273. This
was once observed by Bracton in the maxim that ‘rex non debet esse sub homine sed sub deo et sub
lege, quia lex facit regem’ which means ‘The King must not be under man, but under God and under the
law, because it is the law that makes the King’. However, as it is well-settled that the government has

271
C.K. Takwani: Lectures on Administrative Law, p.350
272
Garner: Administrative Law,1963, p.215
273
Wade: Administrative Law, 1994,pp.819 - 20

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liability but the challenge has always been the means of enforcing such liability since the rights depends
on remedies and there was no human agency to enforce the law against the King. The introduction of
the Crown Proceeding Act, 1947, the Crown was placed in the position of an ordinary litigant274.

10.1. Whether State is bound by Law

As discussed in preceding lectures, the governmental functions have increased, to the extent that
currently, State performs not only the ‘law and order’ functions, but as a ‘welfare State’, it performs
many non sovereign and commercial activities as well. The important question is therefore arising is275:-

 whether the State is subject to the same rights and liabilities which the statute has imposed on
the other individuals
 if so bound, to what extent the provisions of the statute can be enforced against the State

10.1.1. English Law

The position in English law is that ‘no statute binds the Crown unless the crown was expressly named
therein’ that is ‘Roy n’est lie per ascum statute sl il ne soit expressiment nosme’276. Therefore an Act of
the Parliament is presumed not to bind the Crown in the absence of express provision or necessary
implication277. This principle is based on the well maxim that ‘the King can do no wrong’. This general
principle of the common law is preserved even under the provisions of the Crown proceedings Act of
1947, vide S.40 (2) (f).

10.1.2. Tanzanian Law

Being under British rule during colonialism, Tanzania adopted the position of the common law; however
some developments have been done in respect of enacting relevant laws which explains the status quo.
The Government Proceedings Act, No.16 of 1967, provides inter alia that Government as other private
individuals is bound by the statute on which it is specified so, S.3 (3) of the Act. Moreover the
Constitution of the United Republic of Tanzania, 1977, under Article.13, declares the status of every
person being equal under the law. Therefore since the Government is civil rights and liabilities is treated
as if were a private person of full age and capacity (S.3 (1) of Cap.5) is subject to the law.

10.2. The Framework of Administrative Authorities in Tanzania

It is important to understand the framework of administrative authorities in Tanzania so as to be able to

appreciate the nature and extent to which the authorities could be held liable in course of their
functions and responsibilities.

274
C.K. Takwani: Lectures on Administrative Law, p.351
275
Ibid
276
Ibid
277
Wade: Administrative Law, 1994,pp.839

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Article 4 of the Constitution provides for the exercise of State authority of the United Republic of
Tanzania as follows:-

(1) All state authority in the United Republic shall be exercised and controlled by two organs
vested with executive powers, two organs vested with judicial powers and two organs vested
with legislative and supervisory powers over the conduct of public affairs.

(2) The organs vested with executive powers shall be the Government of the United Republic
and the Revolutionary Government of Zanzibar; the organs vested with judicial powers shall
be the Judiciary of the United Republic and the Judiciary of the Revolutionary government of
Zanzibar; and the organs vested with legislative and supervisory powers over public affairs
shall be the Parliament of the Untied Republic and the House of Representatives.

According to this Article the State authority have been generally divided into three organs, thus the
Government exercising executive powers, Judiciary exercising judicial powers and Parliament exercising
legislative and supervisory powers.

Therefore, according to the observation made, the scope of this discussion is to classify the
Government framework as one of the organs of the State.

10.2.1. The President of United Republic of Tanzania.

In Tanzania, the President is the Constitutional Head of State, the Head of Government and the
Commander in Chief of the Armed Forces, Article 33 of the Constitution. Article 34 of the Constitution
provide for the exercise of authority by the Government of United Republic of Tanzania, whereas it is:-

 Vested with authority over all Union Matters in the United Republic and over all other matters
concerning Mainland Tanzania.
 Shall relate to the implementation and upholding of this Constitution and also to all other
matters over which Parliament has power to legislate.
 Vested with all the authority of the Government of the United Republic over all Union Matters in
the United Republic and also over all other matters concerning mainland Tanzania shall vest in
the President of the United Republic.

It also provides that the authority of the Government of the United Republic shall be exercised by either
the President himself or by delegation of such authority to other persons holding office in the service of
the United Republic, Article 34 (4) of the Constitution.

It should be noted however, that in the exercise of his duties, the President is bound to abide to the laws
of the land. His actions can be questioned if he acts beyond his authorised powers. In Said Juma Muslim
Shekimweri v A.G278, Samatta J.K observed that,

278
Misc Civ Cause No.3 of 1996 H.C DSM (Unreported)

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“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 law. Any ascertain that presidential powers have no limitation would have no basis
in law”
If the powers of the President are left unquestioned, then he would have unlimited executive authority,
but it is the rule of administrative law any administrative or executive act must have legal source, thus
any executive function of the President must be justified by law.

Article.35 of the Constitution provides that ‘all Executive functions of the Government of the United
Republic of Tanzania discharged by officers of the Government shall be so done on behalf of the
President, and whereas Orders and other directives issued for the purposes of this Article shall be
signified in such manner as may be specified in regulations issued by the President in conformity with the
provisions of this Constitution’.

Also Article 37 (1) of the Constitution provides that, apart from complying with the provisions contained
in this Constitution, and the laws of the United Republic in the performance of his duties and functions,
the President shall be free and shall not be obliged to take advice given to him by any person, save
where he is required by this Constitution or any other law to act in accordance with the advice given to
him by any person or authority.

Note: refer Article 33 – 46B of the Constitution on matters relating to the office of the President of
United Republic of Tanzania

10.2.2. The Vice President of the United Republic of Tanzania

In Tanzania, the Vice President is second in command after the President of the United Republic of
Tanzania. The Vice President is the principle assistant to the President in respect of the following
matters as per Article 47 (1) of the Constitution:-

 assist the President in making a follow-up on the day-to-day implementation of Union Matters;
 perform all duties assigned to him by the President; and
 Perform all duties and functions of the office of President when the President is out of office or
out of the country.

The Vice President is elected on the same poll as the President, Article 47 (2) of the Constitution. The
Constitution also provides that when the President of the United Republic hails from one part of the
United Republic, then the Vice President shall be a person from other part of the Union.

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Also the Vice-President shall perform his duties under the direction and supervision of the President and
shall provide leadership and be answerable to the President in respect of any matters or functions
assigned to him by the President, as per Article 47(8) of the Constitution.

Note: refer Article 47 – 50 of the Constitution on matters relating to the office of the Vice President of
United Republic of Tanzania

10.2.3. The Prime Minister of the United Republic of Tanzania.

The Prime Minister of the United Republic is a person appointed by the President to hold a post of Prime
Minister. Before assuming his office he had to take and subscribe before the President oath of office of
Prime Minister in a manner prescribed by the Parliament as per Article 51(1) of the Constitution.
Within 14 days of assuming his office, the President is bound to appoint a member of the Parliament
elected from a constituent from a political party has a majority of members of the Parliament in the
National Assembly or if no political party has a majority of the members of the Parliament should
appoint a person who appears to have the support of the majority of the members of the Parliament.
Such appointment must be confirmed with a resolution of the National Assembly supported by the
majority vote of the members of the Parliament, Article.51 (2) of the Constitution.

The functions and authority of the Prime Minister are provided under Article.52 of the Constitution,
thus:-
 The Prime Minister shall have authority over the control, supervision and execution of the day-
to-day functions and affairs of the Government of the United Republic.
 The Prime Minister shall be the Leader of Government business in the National Assembly.
 In the exercise of his authority, the Prime Minister shall perform or cause to be performed any
matter or matters which the President directs to be done.

Note: refer Article 51 – 53A of the Constitution on matters relating to the office of the Vice President of
United Republic of Tanzania

10.2.4. Ministers and Deputy Ministers

The President of United Republic has the duty to appoint ministers and the deputies as per Article 55 of
the Constitution. Both ministers and deputies shall be the members of the Parliament. They are duty
bound to exercise the duties as per offices which they have appointed for. Thus ministers and deputies
hold their offices at the pleasure of the President as per Article 58 of the Constitution.

Although the functions of each minister are determined by the President, but the ministers are heads of
each ministry which they are responsible for. Deputy Ministers assist the ministers in discharging their
duties and functions. Ministers have variety of powers and duties vested in them by different statutes
and are answerable to the Parliament. Therefore they are to carry out their responsibility as according
to law.

The Cabinet, Article 54 of the Constitution.

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It is composed of the Vice President, Prime Minister, the President of Zanzibar and all Ministers,
whereas the President of the United Republic chairs the meeting of the Cabinet. Also the Attorney
General shall attend all the meetings of the Cabinet but shall have no right to vote. The major
responsibility of the Cabinet is to advise the President on various issues.

10.2.5. The Public Service

The President is the head of the civil service who is assisted by ministers in the execution of civil
functions. If the ministers cannot personally exercise all the functions vested in them by law, they
delegate such functions to ministry officials. A description of civil service includes all non-political
officials and employment held under the State with the exception of the armed forces.

Administration of Public Service.

The Chief Secretary is the Chief Executive Officer of the Public Service. The Chief Secretary is appointed
by the President. He is the head of the public service and secretary to the cabinet. The duties of the
Chief Secretary includes:-
 To provide leadership, direction and image to the public service
 To ensure that public servants are trained, motivated, performs effectively and efficiently and
the service is free of corruption and unethical procedure
 To improve public accountability and promoting focus on results, service quality and customer
satisfaction in public service performance
 To be responsible for confirmation of public servants appointed by the President
 To be a disciplinary authority in respect of public servants appointed by the President

Every ministry, extra-ministerial departments, regional or local government authority in the Government
of the United Republic have the Chief Executive Officer known as Permanent Secretary for the Ministry,
the Head of that Extra – Ministerial Department or Regional Administrative Secretary for the Regional or
the Director of the Local Government Authority who are appointed by the President as per S.5 (1) of the
PSA.
All these chief executive officers in respective area of work, they have a duty to:-
 Pursue results oriented management and ensure that the public service is mission-driven and
performs efficiently and effectively
 Be the authority in respect of appointment, confirmation and discipline of public servants other
than those appointed by the President.

Note: For more discussion read the Public Service Act of 2001.

10.3. Practice and Procedure in suing the Government

The law governing the procedure of suing the Government is the Government Proceedings Act, No.16 of
1967, whereas it lays the procedure for the same. This is an Act to provide for the rights and liabilities of
the Government in civil matters, for the procedure in civil proceedings by or against the Government
and for related matters.

10.3.1. Classification of Governmental liabilities

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S.3 (1) of the Cap.5 provides for scope upon which the Government could be held liable in civil
proceedings, thus it states that;

“Subject to the provisions of this Act and any other written law, the Government shall be
subject to all proceedings those liabilities in contract, quasi-contract, detinue, tort and in
other respects to which it would be subject if it were a private person of full age and
capacity and any claim arising therefrom may be enforced against the Government in
accordance with the provisions of this Act.”

This can be classified as follows:-

The Government is treated as a private person of full age and capacity, whereas is subject to all
proceedings in:-
- contract
- quasi – contract
- detenue
- tort
- others of civil nature

(a) Contractual liability

The law treats the Government as private person of full age with capacity. The Governmental officials
who are acting on behalf of the Government can perform various duties in their official capacity
including entering into different contract. Article 35 (1) of the Constitution provides that all Executive
functions of the Government of the United Republic of Tanzania discharged by officers of the
Government shall be so done on behalf of the President. Thus the President by virtue of the powers
conferred by the Constitution can delegate his powers to other officials of the Government.

Various legislations are enacted to give the Governmental officials powers to enter into contracts on
behalf of the government, such officials are like the President, Prime Minister, Ministers in respective
Ministries, Permanent Secretaries, Chief Executive officers on Governmental Agencies etc. when these
Governmental officials enters into contract the Government is bound by such contract and has to
perform accordingly, whereas failure to perform would amount to breach of contract which the
innocent party is entitled for remedy.

(b) Quasi – contract liability

The provision cited above, thus S.3 (1) of Cap 5, also provides that the Government can be liable for
quasi – contractual obligations. Thus in the view to protecting innocent persons, courts have to apply
the provisions of S.70 of the Contract Act [CAP 345.R.E.2002] which provides that;-
“ where a person lawfully does anything for another person, or delivers anything to him, not
intended to do it gratuitously and such other person enjoys the benefit thereof, the latter is
bound to make compensation to the former in respect of, or to restore the thing so done or
delivered”

This provision is explained that if the goods delivered are accepted or the work done is voluntarily
enjoyed, then the liability to pay compensation for the enjoyment of the said goods or the acceptance of
the said work arises. Thus, where the claim for compensation is made by one person against another
under S.70 of LCA, it is not on the basis of the fact that subsisting contract between the parties, but on
the basis of the fact that something was done by one party for the other and the said work so done has

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been voluntarily accepted by the other party279. Thus, the provision of S.70 of LCA prevents ‘unjust
enrichment’ as explained by Lord Wright in Fobrosa v Fairbairn280 in the following words:-
“Any civilized system of the law is bound to provide remedies for cases of what has been
called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money
of, or some benefit delivered from, another which is against conscience that he should keep.
Such remedies in the English Law are generally different from remedies in contract or in tort,
are now recognized to fall within a third category of the common law which has been called
quasi – contract or restitution”
This doctrine applies as much to corporations and the Government as to private individuals, therefore
this provision may be invoked by the aggrieved party if the following conditions are satisfied:
 That a person should lawfully do something for another person or deliver something to him
 That in doing the said thing or deliver the said thing he must not intend to act gratuitously
 That the other person for whom something is done or to whom something is delivered must
enjoy the benefit thereof.
Thus, if these three conditions are satisfied, S.70 of LCA imposes upon the latter person the liability to
make compensation to the former in respect of, or to restore, the thing so done or delivered.

(c) Tortious Liability

Tortuous liability of the Government is in vicarious nature. Since the State is a legal entity and not a
living entity, it has to act through human agency, i.e. through its servants. Thus it refers to when the
State can be held vicariously liable for the wrongs committed by its servants281.
Vicarious liability refers to a situation where one person is held liable for act or omission of the other
person. This implies that the master may be held liable for the torts committed by his servants in the
course of employment. The doctrine of vicarious liability is based on two maxims:
 Respondeat superior (let the principal be liable); and
 Qui facit per alium facit per se (he who does an act through another does it himself)

It was observed by Lord Brougham in the case of Duncan v Finlater282, that:

“the reason that I am liable is this, that by employing him I set the whole thing in motion; and
what he does, being done for my benefit and under my direction, I am responsible for the
consequences of doing it”

It should be noted however, that the government cannot be joined as a necessary party where a
government official offends plaintiff beyond his scope of scheduled duties. For example, in the case of
Ismail G. Lazaro v Josephine Mgomela283, whereas an Assistant Commissioner of Police slandered a
police woman constable by calling her prostitute the Court of Appeal held inter alia that slandering
people was not part of his duties. He did that in his personal capacity and that the government could not
be held vicariously liable. The police officer could not therefore hide behind the protection of the
Government Proceedings Act.

279
Chatturbhuj,
280
(1942) 2 All ER 122
281
C.K. Takwani: Lectures on Administrative Law, p.359
282
(1839) 6 Cl & F 894
283
Civil Appeal No.2 of 1986, CAT, DSM (unreported)

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REV. CHRISTOPHER MTIKILA v THE EDITOR, BUSINESS TIMES & AUGUSTINE LYATONGA MREMA 1993
TLR 60 (HC)

The plaintiff sued the defendants in defamation for words uttered by the second defendant, a
Government Minister, and published by the first defendant. For the second defendant, a preliminary
point was raised and argued to the effect that because the alleged defamatory words, if they were at all
uttered, must have been uttered by the second defendant 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: (i) By vicarious liability the master is liable for tortious acts or omissions of the servant and the two
are joint tort feasors; either or both of them can be sued;

(ii) Vicarious liability does not transfer the principal liability of the servant to the master;

(iii) By vicarious liability an employer is vicariously liable for torts committed by his servant;
but that does not absolve the liability of the servant for the tort he has committed;

(iv) Suing the Government under vicarious liability does not confer immunity on the servant
of the Government who actually committed the tort; the right to sue the servant is not affected by the
right to sue the master;

(v) No provision of the Government Proceedings Act 1967 or any other legislation takes
away the common law right to sue a Government servant who commits a tort in the course of his
official duties;

(vi) There is no law conferring immunity upon Ministers or public officials from being sued
personally for torts they commit in the course of their official duties; when they are so sued in their
personal capacity, it is not a suit against the Government;

(vii) The vicarious liability of the master and the initial liability of the servant are two
different branches of liability.

England

Under common law the Crown was afforded absolute immunity, thus could not be sued in torts for
wrongs committed by its servants in the course of employment. This stand was based on the maxim that
‘the King can do no wrong’ as it was held in the case of Tobin v R of 1863, whereas it was observed that
if the Crown were liable in tort, the principle (the King can do no wrong) would have seemed
meaningless. However through the increase of governmental functions, the stand was subjected to
criticisms such as by Professor Dicey, Committee on Ministers’ Powers and by the House of Lords in
Adams v Nayor284. All these criticisms led to the enactment of the Crown Proceedings Act of 1947,

284
(1949) AC 543

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whereas the Government was placed in the same position as a private individual, thus can be sued or
sue for tortious acts.

Tanzania

The position in Tanzania as regarding tortious liability is the same as in England since Tanzania inherited
the common law system. The governing law is the Government Proceedings Act of 1967, whereas it
provides that the Government can be liable for actions of its servants as per S.3 (1) of the Act.

10.3.2. Procedure in suing the Government

(a) Notice requirement

Before the institutions of civil suit against the Government there is a mandatory requirement of giving
notice of 90 days as per S.6 (2) of Cap.5, which states as follows:
“No suit against the Government shall be instituted, and heard unless the claimant
previously submits to the Government Minister, Department or officer concerned a
notice of not less than ninety days of his intention to sue the Government, specifying the
basis of his claim against the Government, and he shall send a copy of his claim to the
Attorney-General”

Previously, the notice requirement was not there but there was consent requirement, whereas a
claimant had sought the consent of the Attorney General before suing the Government, or
Governmental officials. This previous requirement led to injustice on party of claimants because in
various occasions the consent was not granted. For example, in one instance, Scario Bruno who was
arrested in 1981 on allegation of having encashed a cheque fraudulently, he was injured for such
allegation because he was under custody for some time. He made his application to the Attorney
General for obtaining consent so as to sue the Government in 1984. At the time of his death in 1987, the
consent for the suit had not been granted. Even where a person in attempt this requirement of getting
the government consent, thus decide to sue a person in his own capacity without joining the
government, the government had the tendency of insisting to be joined as a respondent. Worse, still
once the government was joined, then it would immediately invoke the requirements of the
Government Proceedings Enforcement Act of 1967, relating to consent requirements.
In the case of Patrick Maziku v G A Sebalili and Eight Others285, where the plaintiff was suing a Regional
Commissioner in person for ordering the nationalization of his milling machines. Following the
Government request the trial judge allowed the government to be joined and then order the plaintiff to
comply with the statutory provisions relating to suits against the government. However the Government
did not grant such consent.

However, this practice of the Government was put to an end by the court in the case of Peter
Ngomango v Gerson M.K. Mwangwa & Another286, Mwalusanya J, indicated that the requirement to
seek permission from the government in order to sue the same government was dangerous as it
contains no safeguards and effective control against any gross abuses by those entrusted with the

285
Civil Cause No.3 of 1982 HCT at TBR (unreported)
286
Civil Cause No.22 of 1992, HCT DOM (unreported)

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power to issue permits. He therefore, declared it void and unconstitutional. This decision was quoted
with approval by the Court of Appeal of Tanzania of Kukutia Ole Pumbuni & Another v A.G and
Another287. From then onwards, a plaintiff need to give a 90 days notice to sue the government.

(b) Institution of the suit

After the expiry of the 90 days notice, the suit shall be brought against the Attorney General and the
copy of the plaint to be served upon the Government Ministry, Department or Officer that is alleged to
have committed the civil wrong on which the civil suit is based as per S.6 (3) of Cap.5.

(c) Place of Suing

All the suits against the Government shall be instituted in the High Court by delivering in the Registry of
the High Court within the area where the claim arose as per S.6 (4) and S.7 of Cap.5.

(d) Application of general law

All civil proceedings by or against the Government shall be instituted and proceeded with in accordance
with the procedure applicable in like proceedings between private persons as per S.8 of Cap.5.
Therefore the general law as regard to civil cases, thus Civil Procedure Code is applicable.

(e) Suits against the Government should be instituted against the Attorney General

All civil proceedings by or against the Government shall be instituted by or against the Attorney-General.
Provided that the Minister may by order published in the Gazette direct that any particular civil
proceedings or class of civil proceedings be instituted by any officer designated in the order instead of
by the Attorney-General as per S.10 of Cap.5.

(f) Nature of relief

The court is empowered to order any relief as if the case is between the private persons. S.12 of Cap.5
provides that;

“In any civil proceedings by or against the Government the court shall, subject to the
provisions of this Act, have power to make all such orders as it has power to make in
proceedings between private persons and otherwise to give such appropriate relief as
the case may require.”

(g) Orders as to Costs

The costs in a suit to which the Government is a party shall be provided as if in the private
persons suits are concerned. This is has been provided in S.13 of Cap.5. Also the proceedings
relating with the interests that a decree debtor is owed to pay whereas the Government is party
shall be provided as if the private parties are concerned, as per S.15 of Cap.5

287
Civil Appeal No.32 of 1992 CAT Arusha.

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(h) Satisfaction of orders against the Government

Where a party has obtained a decree against the Government, a certificate to that effect has to
be issued stating particulars of the order to the Permanent Secretary to the Treasury or such
other Government accountant officer. The respective officer shall pay when appropriate the
amount due to the decree holder or his Advocate plus any interest accrued. However, no
execution, attachment or similar process shall be issued out of any court for enforcing payment
by the Government of any money or costs referred and no person shall be individually liable
under any order for payment by the Government or any Government department or any officer
of the Government as such of the money or costs, this is per S.16 of the Cap.5.

Whereas on the other hand execution by the Government can be enforced as other private
persons as per S.17 of Cap.5.

Also it should be noted that suits against the Government are related to Central Government and not
the Local Government Authorities. The Local Government Authorities can be sued like other corporate
persons, thus not concerned with the Government Proceedings Act, whereas the suits relating to Local
Government Authorities are regulated by the Local Government (Urban Authorities) Act, Cap.288.

10.4. Procedure for Enforcing Basic Rights

The basic rights and duties became part of the Tanzanian Constitution after the enactment of the Bill of
Rights in 1984. It should be noted that any right or freedom is useful to the targeted person(s) or
community only if it can be enforced otherwise if is not enforceable it is as good as having no such
rights. It becomes important therefore that there should be a clear and elaborate procedure through
which one can effectively enforce his basic rights.

The procedure for the enforcement of basic rights in Tanzania is governed by the Basic Rights and Duties
Enforcement Act, No.33 of 1994. Note that Article 30 (4) of the Constitution empowers the Parliament
to enact legislation concerning the enforcement of the basic Rights. Therefore, the Act was enacted to
provide for the procedure for enforcement of Constitutional Basic Rights, for duties and for related
matters. Also, it should be noted that, however in some cases provisions for fundamental rights and
freedoms in this country have been less than absolute. Limitations of rights in form of policy statements
and law have always been accompanied by the implementation mechanism of the same. In some
instances where rights and freedom have been completely deprived by the executive arm of the State,
the other institution which would have been expected to come up as savior, such as courts of law have
failed to do so. For example in United Republic v IGP, exparte James Mapalala and Mwinyi Juma

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Athumani Upendo288, where two political activists were arrested and detained for a long period of time
without any legal basis. When they filed for habeas corpus proceedings some months later, a freshly
signed detention order was presented in court. When their Counsel protested against their long illegal
incarcellation prior to the date of detention order and requested the judge to address the period of
icarcellation prior to the signing of the detention orders, the judge refused to do so. For him properly
detention orders had been produced before him and that was enough.

10.2.1. Enforcement of Basic Rights in Tanzania

Where any person alleges that any of the provisions of Article.12 -29 of the Constitution has been or is
likely to be contravened in relation to him, he may apply to the High Court for redress, S.4 of the Act.
The High Court is vested with the original jurisdiction in matters pertaining to basic rights, S.4 & 8 of the
Act. Therefore, enforcement of fundamental rights and freedoms in Tanzania is dependent on the courts
of law, in particular the High Court and the Court of Appeal. Thus, it is anticipated that the courts have
to play their traditional role of ensuring dispensation of justice to the society.

The role of the court in society was explained by Mweisumo,J in Joseph Kivuyo & Another v Regional
Police Commander Arusha & Another289, where he characterised the court of law in the following
terms:-

“this is the temple of justice and nobody should fear to enter it so as to battle his legal redress as
provided by the law of the land”

However, the higher judicial system in Tanzania is highly divided to the disappointment that there are
some judges seem to be activists while on the other hand others seems to be pro-State and exhibits
conservative attitude in deciding basic rights cases especially where the State is a party.

Application to the High Court by the affected person is to be made by way of petition, S.5 of the Act. It
must contain the name and address of the petitioner, the respondent, grounds for application, Articles
of the Constitution violated has to be specified, particulars of the facts in the petition (these should not
include evidence – but statements of facts upon which a petitioner seeks a relief from the court), S.6 of
the Act.

By virtue of S.10 (1) of the Act, except in determination of whether an application is frivolous (not
serious) or vexatious (without sufficient grounds) or otherwise fit for hearing which may be made by a
single judge, the quorum of the High Court to hear the petition is three judges. In considering the
petition both oral and documentary evidence are allowed to be presented. The determination of the
petition is through majority decision.

According to the very wording of S.10 of the Act, unlike before, whereby a single judge could hear and
determine an issue relating to fundamental rights and freedom under Constitution, while from 1994

288
Misc Criminal Cause No.30 of 1966 HCT, DSM (unreported)
289
Misc Civil Appl No.92 of 1978 HCT Arusha (unreported)

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onwards, it is mandatory to have three judges. This provision is one of the controversial areas of the Act.
Experience has shown that an issue might begin as simple issue of wages and without parties addressing
the Constitutional issues on the matter, then the court suo motto may rise constitutional issues in the
matter being litigated, for example in a case of A.G v Marwa Magori290, His Lordship, Nyalali C.J stated
that:-

“although it is true that neither of the parties raised the issue of constitutionality of the
Deportation Ordinance, we are satisfied that the learned trial judge was correct in raising
it suo motto for two reasons. Firstly, all courts of law in this country are duty bound to
take judicial notice of all constitutional and legal matters. Secondly, the courts in this
country are not the courts of the parties but are courts of law and have thus inherent
jurisdiction to raise and consider matters to a fair and just decision of the case….provided
that the parties are given reasonable opportunity to respond to the matters that raised”

Since it is now a mandatory requirement to have three judges in determining matters pertaining to
basic rights and duties, it means that the moment the court raises a constitutional issue in a case it
cannot proceed with the matter any longer, thus the matter has to be referred to three judges.

Criticism

 The procedure of a suit relating to the enforcement of basic right to be entertained by

three judges is wastage of time whereby it prolong the sufferings of the victim
 It is mistrust to the judicial personnel whereas they have been vested with powers to
determine cases of serious nature like murder and others on basis of single judge, then why
depriving the authority in determining the questions of violation of human right.
 Delaying process of determination of the suits which is caused by few numbers of judges,
thus it may happen within a zone of High Court there are no three judges thus others are to
be requested from other zones.
 The Act takes away the power of the High Court to declare an act or omission which
violates the basic human rights to be unconstitutional but the High Court shall allow the
Parliament or other authority concerned to correct the defect within a period of time and
until such correction or specified time such act or omission will still be valid as per S.13 of
the Act. Refer also Article.30 (5) of the Constitution.

290
Civil Appeal No.95 of 1998 CAT MWNZ

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10.3. Ouster Clauses (Exclusion Clauses)

These are clauses enacted in the law as an attempt of the Government or Legislature to exclude or limit
the jurisdiction of courts. This is to exempt a public authority from the jurisdiction of the courts of law. It
is the exclusion of judicial proceedings in respect of dispute resolution of which is entrusted to the
bodies other than the ordinary courts.

Types of Ouster Clauses

a) Direct exclusion ouster clauses

This deprives the powers of the superior court, e.g. the High Court of reviewing the decisions of
tribunals or other administrative bodies exercisable by means of certiorari. E.g. S15 of the
Regulation of the Prices Action of 1973 provides that; ‘No decision of the Price Commissioner or
Assistant Price Commissioner made or purporting to have been made pursuant to any provision
on this party shall be subject to review by any court on any ground whatsoever’.

b) Finality clauses
These declare decisions by ministers and Tribunals as final and therefore not subject to review
by courts of law. E.g. S.9B (1) of the former Permanent Labour Tribunal Act of 1977 provided

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that, ‘upon receipt of a Report made by the tribunal in respect of any matter referred to it under
S.9A, the Minister shall make a decision in relation to the matter contained in the report and that
decision shall be final’.

c) Finality and conclusive ouster clauses

This also purports to ouster court’s jurisdiction to control administrative actions and purports to
make administrative authorities final and conclusive in their discharge of the executive powers
and discretion. E.g. S.25 of the Business Licencing Act of 1972, provides, ‘every decision of the
licensing authority, Principal Secretary and the Minister or Appeal committee exercising the
functions of the Minister or Principal Secretary on appeal, shall be final and conclusive and shall
not be subject to review by any court’

d) Shall not be inquired, entertained or questioned in any legal proceedings’ ouster clauses
These are very swiping ouster clauses which appear in several statutes of importance, usually in
the context where the legislation has itself provided a specific, though a limited means of
challenging and has then provided that except for the specific remedy, the act or decision shall
not be called into question in any other legal proceedings.

e) Subjective clauses
These are subjectively worded ouster clauses which purport to limit review by courts of law of
the administrative authorities. E.g. S.19 of the Civil Service Act 1989 provides ‘the president may
remove a civil servant from the service of the Republic if he considers it is the public interest to
do so’.

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