Sunday, August 12, 2012


GROUNDS FOR JUDICIAL REVIEW & HR CASES Compiled by Mwatawala, Zainab M.,at UDSM on 16th March, 1999 Word processed from 27/4/2012 at MZUMBE UNIVERSITY 1. SAMUEL KENNETH ODENDAAL & THE OFFICIAL RECEIVER v. RICHARD GRAY (1960) E.A. 263 Mortgage – Practice – Appeal – Mortgage suit – Preliminary decree obtained by consent – Final Decree subsequently obtained – Appeal from final decree – whether appellant can indirectly attack validity of preliminary decree – Civil Procedure Ordinance, s.67 (2) & s68 (K) – Indian Civil Procedure Code, 1908, s.97. Crown Lands Ordinance - Equitable Mortgage – Prior consent to transaction not obtained – Whether consent can be obtained after transaction entered into – Exercise of power to give consent delegated to Commissioner for Lands by Governor – Consent required to be endorsed on instrument requiring consent – Whether Commissioner of Lands can delegate to a subordinate officer power to effect such endorsement – Crown Lands Ordinance (Cap 155) s. 5 & s. 88 (K) – Crown Lands (Amendments) Ordinance, 1953 (K). Land control….. Bankruptcy….. Supreme Court – Jurisdiction – Suit in respect of Land at Naivasha filed at Nairobi – Whether Supreme Court sitting at Nairobi had jurisdiction – Civil Procedure Ordinance, s.12 © & s.15 (K) – Kenya Colony Order in Council, 1920 (K) – Kenya Protectorate Order in Council, 1920, art. XII (K). The respondent had sued the first appellant to enforce an Equitable Mortgage by deposit of title deeds. The first appellant entered an appearance but filed no defence, and when the case came up for formal proof, judgment in terms of a consent letter was entered for the respondent for the sum of shs.104,000/= for principal or pay interest, a preliminary decree purporting to follow a form in the Schedule to the Rules of Court [Mortgage Suits Consolidation] for sale of the mortgaged property was, after approval by the first appellant’s advocates, drawn up by the deputy registrar. Subsequently, the first appellant was adjudged bankrupt and his property vested in the second appellant and when the respondent applied for a final decree for sale of the mortgaged property under the Rules of Court [Mortgage Suits Consolidation], the second appellant opposed the application attacking, inter alia, the validity of the Equitable Mortgage and thus, indirectly, the validity of the preliminary decree. The judge overruled the objections raised and granted the final decree for sale. The appellants thereupon appeared and at the hearing it was submitted for the appellants inter alia that, (1) As Chapter IV of the Indian Transfer of Property Act did not cover Equitable Mortgages by deposit of title deeds the court had no power to order a final decree for sale either under the Rules of Court [Mortgage Suits Consolidation] or under any other legislation. (2) Neither of the consents required under s.88 of the Crown Land Ordinance and s.7 of the Land Control Ordinance were shown to have been given to the instant mortgage which was therefore void, (3) The words “on the immovable property” appearing in the last sentence of s.2 of the Equitable Mortgages Ordinance limited the preceding words “the same effect” so as to exclude the remedy of sale in execution of the mortgage, (4) If the judge had power to make a final decree he exercised his discretion in disregard of the equities in making it and (5) The Supreme Court of Kenya sitting at Nairobi had no jurisdiction to make a decree for the sale of the mortgaged property which was situate in the Naivasha District. Counsel for the respondent submitted by way of preliminary objection that it was not competent for the appellants to attack, in effect, the validity of the preliminary decree under cover of an appeal against the final decree and that the judge should have ordered the final decree for sale purely on the strength of the preliminary decree and the first appellant’s admitted non compliance with its terms. Held: (i) It was clear that a consent judgment was to be entered for the respondent on his claim, which was a claim to enforce the mortgage. (ii) The appellants by reason of both s.67(2) and s. 88 of the Civil Procedure Ordinance, were precluded from appealing against the final decree on any ground which simultaneously touched upon the validity of the preliminary decree (iii) … (iv) … (v) It was within the power of the Supreme Court to make the final decree for sale, and even if the mortgage Suits Rules had not been in existence as the appropriate medium for making it, the court could still have made such a decree under its inherent power. (vi) In making the final decree for sale the trial judge had a discretion to do so and exercised it properly. (vii) Since there was only one Supreme Court in Kenya with jurisdiction throughout Kenya, the Supreme Court sitting at Nairobi had jurisdiction to make a decree for the sale of property situated in the Naivasha District. (viii) An ex post facto consent under s.88 of the Crown Lands Ordinance was sufficient to satisfy the section (ix) While s.5 of the Crown Lands Ordinance did not authorize the Commissioner to authorize a subordinate officer to exercise powers vested by the Ordinance in the Governor and delegated by him to the Commissioner, it did empower the Commissioner to entrust to another officer the mere task of signifying that the Commissioner had performed an act he was duly authorized by the Governor to perform. (x) The consent required under s.88 ibid. was sufficiently signified over the signature of a subordinate even though the words used were “consent is hereby given” and not “it is hereby notified that the consent has been given”, so long as in fact, consent had already been given by the person empowered to give it. (xi) The consent of the Land Control Board as required by s.7 of the Land Control Ordinance was duly obtained and there was no evidence to rebut the presumption that the consent by the Chairman of the board was a consent by the board itself. (xii) S.9 (2) of the Bankruptcy Ordinance merely saved the rights of a secured creditor in his own right as such; the section did not preclude the appellants form relying on a valid ground of objection to the security, had they had one. Appeal dismissed. 2. C.AT MWANZA, CIVIL APPEAL NO. 20 OF 1990 Nyalali, C.J., Omar, J.A., & Ramadhani, J.A. BETWEEN The ASSISTANT IMPORTS CONTROLLER (BoT) MWANZA … Appellant AND MAGNUM AGENCIES CO. LTD. … Respondent (Appeal from the Ruling/Decision of the HCT at Mwanza: Mwalusanya, J.) Dated: the 13th Day of July, 1989 In Miscellaneous Civil Cause No. 16 of 1989. HELD: 1. As the learned judge did not have a factual basis for arriving at the decision he did, the proceedings were are hereby declared null and void and are quashed. 2. We concede that we allow the appeal with costs. 3. The application for Leave to apply for the order was instituled thus….. but the proper institulation should have been as explained in Mohamed Ahmed v. R. (1957) EA 523 at 524 and Farmers Bus Service & Ors. v. The Transport Licensing Appeal Board (1959) EA 779 at 781. 3. Miscellaneous Civil Cause No. 13 of 1989 [In the Matter of an Ex-parte Application for Leave to Apply for an Order of Mandamus] MAGNUM AGENCIES COMPANY LTD. ….. Applicant V THE ASSISTANT IMPORTS CONTROLLER ….. Respondent BANK OF TANZANIA, MWANZA Refer to MOHAMED AHMED v. R (1957) EA 523 …His application for this leave was correctly instituled (as follows):- “In the Matter of an Application by Mohamed Ahmed for leave to apply for an Order of Prohibition And “In the Matter of Criminal Case No.463/1956 of the District Court., Soroti: District Health Inspector v. Gurbachan Singh Kalsi of Kumi.” In the Matter of an application by MAGNUM AGENCIES CO. LTD. For leave to apply for an Order of Mandamus And In the Matter of extending the duration of the Import Licence issued on 9/6/1988 by the Assistant Imports Controller, Bank of Tanzania, Mwanza. 4. JOSIAH BARTHAZAR BAIZI AND 138 OTHERS V ATTORNEY GENERAL & ORS. (1998) TLR 331 – Mackanja, J. (Procedure) JR – Practice and procedure – Application for leave to apply for prohibition and mandamus – whether affidavit supporting the application for leave must fully and frankly disclose all material particulars. Prerogative Orders – Locus Standi – Application for leave to apply for prohibition and mandamus – Locus Standi where the objective of application is to defend the applicants’ interest in land to be acquired for road expansion – whether all applicants have to establish their titles to the parcels of land they claim. Prohibition and Mandamus – Locus Standi – Meaning of locus standi – Whether and when locus standi can be raised as an issue in proceedings for prerogative remedies. Prerogative Orders – Prohibition and Mandamus – Purpose and essence thereof – Whether prerogative orders can be granted in cases where civil remedies in the nature of civil process are available Civil Practice and Procedure – Security for Costs – Resident applicants ordered to deposit security for costs – Whether proper. The applicants applied for leave to apply for the prerogative orders of prohibition and mandamus. Their application was supported by the affidavit of the 1st applicant, Josiah Balthazar Baizi, sworn on his own behalf and on behalf of his co-applicants. They contended that they were lawful owners of the parcels of land along the Morogoro Highway that the second and/or third respondents wanted to acquire for purposes of road expansion. The respondents raised a four-point preliminary objection against the application: firstly, that the affidavit in support of the application did not give a full and frank disclosure of the facts; secondly, that there were applicants who did not own property within the highway corridor and road reserve and as such had no locus standi; thirdly, that the application was not a case that could be determined by way of judicial review; and fourthly, sought in the alternative, that the applicants provide security to cushion the respondents against escalating construction costs pending determination of the application. HELD: (i) Apart from the applicants’ obligation to make a full and frank disclosure of all material facts on which they rely in their application, uberrimae fidei is also required before leave is granted; (ii) It is a matter of high constitutional principle that if there is good ground for supposing that a government department or public authority is transgressing the law, or is about to transgress it, in a way that offends or injures thousands of subjects, they any one of those offended or injured can draw it to to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate; (iii) Today, locus standi is not viewed in its original narrow meaning; it has been expanded to include “sufficient interest” so that any one with sufficient interest may seek a remedy on behalf of others who are also injured; (iv) Locus standi can be raised as an issue during the preliminary stage in the application for leave; at that early stage the court may find, in simple cases, that an applicant for judicial review has no right of being heard, in cases that involve complex issues, the question of sufficiency of interest has to be considered together with the legal and factual context of the application; (v) If the application for prerogative orders is made, the question of locus standi will then be determined regarding those who passed the test at the threshold stage, those who can establish that, indeed, they had a grievance; (vi) Quantum of compensation cannot be proved in an application for judicial review; the applicants’ right to compensation is inchoate, they are yet to prove it and this cannot be done in an application like this one. (vii) Orders for security for costs are aimed at non-resident plaintiffs in terms of Order XXV of the Civil Procedure Code 1966, which is not the case here. APPLICATION DISMISSED. Professor Gamaliel Mgongo Fimbo, for the Applicants. Mr. Werema and Mr. Chidowu, for the Respondents. 5. ANDREW W. NKUZI-------------------------------------------Applicant vs TANZANIA SISAL AUTHORITY (TSA)-----------------------Respondent HIGH COURT TANGA, MISCELLANEOUS CIVIL CAUSE No. 3 of 1994 - Coram: Kyando, J. ORDER This is an application for the prerogative order of certiorari. Proceedings for prerogative orders are instituted by three (3) documents:- 1. A Chamber Summons, which, as the name suggests, is a SUMMONS. 2. A Supporting Affidavit, which is the evidence in the application for, normally, no oral evidence is permissible in this type of application. 3. An Accompanying Statement. In the statement are stated or set out the (1) names and description of the parties; (2) a brief statement of the facts constituting the Complaint; the Reliefs sought and the Grounds for the reliefs. The statement is the pleading in proceedings of this kind. It takes place of the plaint in an ordinary suit. In this application, no Statement was filed. Held: The present application therefore is incompetent and I cannot entertain it. It is STRUCK OUT, with costs, and, subject to rules relating to limitation, the applicant may re-bring a properly constituted application. L.A.A. Kyando, Judge, Tanga, 8/12/1994. 6. AMERICAN CYNANAMID CO. v ETHICON LTD. (1975) 1 All E.R. 504 Held: (i) The grant of interlocutory injunctions for infringement of patents was governed by the same principles as those in other actions. There was no rule of law that the court was precluded from considering whether, on a balance of convenience, an interlocutory injunction should be granted unless the plaintiff succeeded in establishing a prima facie case or a probability that he would be successful at the trial of the action. All that was necessary was that the court should be satisfied that the claim was not frivolous or vexatious, i.e. that there was a serious question to be tried. 7. ALFRED LAKARU v TOWN DIRECTOR ARUSHA (1980) TLR 326 Maganga, J. By this application filed in September, 1979 the applicant sought an order of Mandamus against the respondent directing the respondent, inter alia, to restore to him the occupation of Stall No. 17 in Arusha Central Market alleging that the respondent had unlawfully evicted him from the stall which he had rented and used for sale of vegetables since 1955. The respondent did not file appearance and therefore the application was heard ex parte. Held: 1. Without going into its merits, the application was incompetent and misconceived as the affidavit filed in support of the application did not disclose any of the conditions precedent for the issue of an Order of Mandamus, namely: (a) Legal right must exist (b) Duties must be public (c) Right must be in the applicant (d) Application must be made in (utmost) good faith (uberrimae fidei) (e) Demand for performance must precede the application (f) There must exist the possibility of enforcement; and (g) No other legal remedy. 2. As it is mandatory to obtain leave to file the application and no leave was sought or granted before filing the application it was incompetent. 3. In the merits, an order for the restoration of the stall to the applicant is beyond the scope of an order of mandamus as the court will not question by mandamus the decision of a local authority, which has been entrusted to its discretion and is made in good faith and on reasonable grounds. 4. In the instant case, the reason of the respondent for terminating the tenancy of the applicant as he was operating without a licence was not even attempted to be disproved either by evidence of payment of rental charges or of renewal of the licence. 5. Mandamus will not be granted unless applied for within a reasonable time after the demand and refusal to do the act and in this case there is neither even an averment that there had been demand for performance before the application was fined, nor evidence of such demand and refusal, nor a satisfactory explanation for the five months’ delay between eviction in May, 1979 and the filing of the application. In the absence of reasons for the delay, the application could not have been granted, even had it been properly filed. 8. ANISMINIC, LTD. v. THE FOREIGN COMPENSATION COMMISSION (FCC) & ANOR. (1969) 1 All E.R. 208 Coram: Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce and Lord Pearson; October 2 – December 17, 1968. (A Summary of the Reported Version) CERTIORARI – Jurisdiction – Principles – Statutory tribunal’s decision – No certiorari provision in statute. Error going to jurisdiction distinguished from Error within jurisdiction – Review of decision for error of law apparent on face of record and within jurisdiction excluded y no certiorari provision – Error going to jurisdiction rendering tribunal’s decision a nullity notwithstanding no certiorari clause. CERTIORARI – Statutory tribunal – Determination of tribunal to be final – Application to Foreign Compensation Commission – Application of kind into which Commission had jurisdiction to inquire – Error of Commission in construing Order in Council – Whether Error rendering determination a nullity – Foreign Compensation [Egypt] {Determination & Registration of Claims} Order, 1962, art. 4(1)(b) – Foreign Compensation Act 1950, s.4(4). DECLARATION – Jurisdiction – Inferior Tribunal – Declaration that determination of Statutory tribunal a nullity – Whether appropriate form of relief. The appellants were a British Company which owned a mining property in Egypt worth more than Sterling Pounds 4,000,000. In 1056, after the Israel/Egypt hostilities, the property, together with other properties owned by British Nationals, was sequestrated by the Egyptian Government. In April 1957, the property was sold to an Egyptian Organisation, TEDO. In November, 1957, the appellants reached an agreement with TEDO and the Sequestrator-General whereby the appellants purported to sell to TEDO for Sterling Pounds 500,000 the whole of their business in Egypt, whilst reserving to themselves any rights to compensation to which they might be entitled against any government. In 1959, a treaty was concluded between the respective governments under which compensation was paid to the British Government in respect of certain properties listed in Annex E thereto. The appellant’s mining property was there listed, but the disposal of the compensation was in the discretion of the British government. The appellants submitted a claim to compensation to the first respondents, the FCC, whose determination thereof could not, by virtue of s. 4(4) of the Foreign Compensation Act 1950, be called into question in any court of law. The relevant Order providing for payments out of the Egypt compensation fund was the Foreign Compensation [Egypt] {Determination & Registration of Claims} Order 1962. Article 4(1) of the Order provided that the Commission should treat the claim to compensation as established if [by art. 4(1)(a)] the property was listed in Annex E, and by art.4(1d)(b) {in relation to that part of Annex E in which the appellants’ property was listed} if the applicant was the person referred to in Annex E as the owner of the property or was the successor in title of such person, and that the owner and any person who became successor in title to such person were British nationals on specified dates. In May 1963, the Commission provisionally determined that the appellants had failed to establish their claim on the ground that TEDO, which had become the successor in title to the appellants, was not any time a British national. HELD: (i) (Lord Morris of Borth-y-Gest and Lord Pearson dissenting) On the true construction of art.4 (1)(b), the words “successor in title” had no relevance whilst the person listed in Annex E as the original owner of the property in question survived. (ii) (same dissenting) When the Commission rejected the appellant’s claim they took into consideration a factor which they had no right to take into account and, accordingly, their decision was a nullity. (iii) On the true construction of s.4 (4) of the Act of 1950, “determination” meant a real determination not a purported determination; accordingly, the subsection did not operate to exclude enquiry by a court of law in the present case. (iv) In all circumstances, declarations were the appropriate form of relief. (v) Decision of the Court of Appeal reversed. APPEAL This was an appeal by the appellants, ANISMINIC, Ltd., from an order of the Court of Appeal dated 23.31967 allowing the appeal of the respondents, FCC and its Legal Officer Cecil Frank Cooper, against an Order of Browne, J., made on 29/7/1966 declaring that a provisional determination by the Commission was made without, or in excess of jurisdiction and was a nullity. BROWNE, J., also declared that the Commission were under the statutory duty to treat as established under art. 4 of the FC [Egypt] {Determination & Registration of Claims} Order 1962, the claim of the appellants in respect of their former property in Egypt. (A further declaration made in respect of a claim by the appellants to compensation in respect of damage to the appellant’s property arising out of the military action of the Israeli Armed forces is outside their scope of this report.) The facts are set out in the judgments of Lord REID & FACTS 23.11.1957: Agreement between ANISMINIC, TEDO & Sequestrator-General whereby appellants purported to sell to TEDO for Sterling Pounds 500,000 their whole business in Egypt; but this was NOT to include Any claim which the appellants might be entitled to assert against any governmental authority other than the Egyptian government, as a result of loss suffered by, or of damage to or reduction in the value of their business or assets during the events of October and November, 1956. It is not disputed that, by this agreement, the appellants gave up or assigned to TEDO any claim they might have to receive compensation directly from the Egyptian government, but I think [Reid, LJ] that they did not give up or assign any CLAIM, HOPE or PROSPECT they might have to receive something from the British or Israeli governments. 28.2.1959: Treaty between governments of UK and United Arab Republic (UAR) provided for the return to British subjects of their sequestrated property excepting properties sold between 30.101956 – 2.8.1958. Excepted property listed in Annex E included the property of “Sinai Mining (subject to a special arrangement)”. Sinai Mining was the name of the appellants before changing to ANISMINIC. It is not clear what was meant by “subject to special arrangement”. Under the Treaty the UAR paid to UK the sum of Sterling Pounds 27,000,000 in full and final settlement of claims of a kind mentioned in article IV. At that stage the appellants had no legal right to claim to participate in that sum. The disposal of that sum was in the discretion of the UK government. The most the appellants had was a hope that they would receive some part of it. ISSUE: The Appellants submitted a claim under the Foreign Compensation (Egypt) (Determination and Registration of claims) Order 1959 (2) to the respondent Commission. Claims opposed by the Legal Officer of the Commission; 8.5.1963 made a provisional determination that Appellants failed to establish a claim under the Egyptian Order Aforesaid in respect of the matters referred to…Claim dismissed. BROWNE, J. – 29.7.1966 Declared the Commission’s provisional determination was a nullity and that the Commission is under statutory duty to treat the appellant’s first claim as established. Court of Appeal on appeal 5.4.1967 set aside the judgment of Browne, J. and appellant seek restoration of this judgment. COMMISSION ARGUMENTS: 1. Such a declaration could not competently be made. REID. L.J. rejected this argument. If appellants succeed on the merits the declarations made by Browne, should be restored. 2. By reason of the provisions of s.4 (4) of the Act of 1950, the courts are precluded from considering whether the Commission’s determination was a nullity, and, therefore, it must be treated as valid whether or not enquiry would disclose that it was a nullity. S. 4 (4) reads:- The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law. Jurisdiction = tribunal being entitled to enter on the enquiry in question. (i) It has done or failed to do something in the course of the enquiry which is of such a nature that its decision is a nullity. (ii) Given its decision in bad faith (iii) Made a decision which it had no power to make (iv) Failed in the course of the enquiry to comply with the requirements of natural justice. (v) In perfect good faith, it may have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. (vi) Refused to take into account something which it was required to take into account. (vii) May have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. Summary of the above: If it decided a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rights. Draftsmanship:- (i) (Whether) where the applicant is the original owner; and (ii) Where the applicant claims as a successor in title of the original owner. Clear Where the applicant is the Original owner, he must prove that he was a British National on the dates stated (October 1956 – February 1959). Clear Where applicant claims as being the original owner’s successor in title, he must prove that both he and the original owner were British Nationals on those dates… Obscure as to whether the provisions with regard to Successor in title have any application at all in cases where the applicant is himself the original owner. I can think of no other way in which the original owner could transfer inter vivos his expectation of receiving compensation. In themselves the words “successor in title” are, in my opinion, inappropriate in the circumstances of this order to denote any person while the original owner is still in existence. I would, therefore, HOLD that the words “any person who became successor in title of such person” in art. 4 (1) (b) (ii) have no application to a case where the applicant is the original owner. It follows that the Commission rejected the appellant’s claim on a ground which they had no right to take into account and that their decision was a nullity. Appeal allowed. LORD MORRIS BORTH-Y-GEST The Commission held that the appellants, being fully aware of the cancellation of their leases and of the damage to their business and of the purported sale of it, “sold and intended to sell to TEDO all claims arising thereout together with the goodwill of the company.” They held that TEDO was not at any time a British National. Agreement between UK & UAR of 28.2.1959 provided for the return of British property by the UAR. Excluded in it was property which had been sold between 30.10.1956 – 2.8.1958. The exclusion was of property sold under Proclamation No. 5 and referred to in Annex; where the name of the appellants appeared. - Amended form; Annex E referred to the property in the UAR of any UK Nationals appearing on the following list Entry: - The Sinai Mining Co. Ltd., 1 sh. El Bustan, Cairo (subject to special arrangement). Order in Council made on 6/4/1959. It recited the authority given by the Act to make provision for the “determination” by the Commission of “claims to participate in compensation received under agreements with foreign governments”. Commission Decision:- KAs appellants sold their property to TEDO, and, as TEDO was not a British National and as TEDO was the “successor in title” or assignee of the appellants, the Commission had not been satisfied of the matters referred to in art. 4, with the result that they could not treat the main claim as established. Gest, L. J. How the appellants can justify the calling in question by them of the determination of the Commission. - They boldly say that what looks like a determination was in fact no determination but was a mere nullity. Should be regarded as being NULL and VOID. WHY? Contains errors in law which have caused the Commission to exceed their jurisdiction HOLDING: If a particular issue is left to a tribunal to decide the even where it is shown (in cases where it is possible to show) that in deciding the issue left to it the tribunal has come to the conclusion that does not involve that the tribunal has gone outside its jurisdiction. It follows that, if any errors of law are made in deciding matters which are left to a tribunal for its decision, such errors will be errors within its jurisdiction. If issues of law as well as of fact are referred to a tribunal for its determination, then its determination is not to be called in question in any court of law. ___________________________________ It is not suggested that the commission were not acting within their jurisdiction when they entertained the application of the appellants and gave it their consideration nor when they heard arguments and submissions for four days in regard to it. THE MOMENT when it is said that they strayed outside their allotted jurisdiction must, therefore have been at the moment when they gave their determination. __________________________________ The control which it exercised by the High Court over inferior tribunals is of a supervisory nature but not of an appellate nature. It enables the High Court to correct errors of law if they are revealed on the fact of the record. The control cannot, however, be exercised if there is some provision (such as a “no certiorari” clause) which prohibits removal to the High Court. But it is well settled that even such a clause is of no avail if the inferior tribunal acts without jurisdiction or exceeds the limit of its jurisdiction. Holding:- If, therefore, a tribunal while within the area of its jurisdiction committed some error of law and if such error was made apparent in the determination itself (or, as it is often expressed, on the face of the record) then the superior court could correct that error unless it was forbidden to do so. It would be so forbidden if the determination was “not to be called in question in any court of law”. If so forbidden it could not then even hear argument which suggested that error of law had been made. It could however, still consider whether the determination was within “the area of the inferior jurisdiction”. Questions – Issues: • Whether the Commission went out of bounds? • Did they wander outside their designated area? • Did they outstep the confines of the territory of their enquiry? • Did they digress away from their allotted task? • Was there some preliminary on the correct determination of which their later jurisdiction was dependent? At no time did the Commission stray from the direct path which they were required to tread. Reasons: The Learned Judge (C.A.) said that the Commission had no jurisdiction to consider under art. 4(1) any other question than those which para (a) and para (b) of that article on their true construction required them to consider and that, if satisfied of those matters, they were under a statutory duty to treat the claim as established and had no jurisdiction to do anything else. That is entirely correct. Reference to some of the decisions relied on by the appellants in their submissions that they supported the view that the determination of the Commission in this case can be challenged point to exactly the contrary view. The cases reveal a consistent line of authority to the effect that provisions such as the provision in s.4 (4) of the Act of 1950 will not avail to bar recourse to the courts if a tribunal has acted without or in excess of jurisdiction, but will bar such recourse if the tribunal has kept within and travelled within its jurisdiction even if in so doing it has erred in law and even if such error of law is revealed on “the face” of the tribunal’s determination. I cannot accept that if, in regard to any one of the many points in respect of which interpretation and construction became necessary a view can be formed that the Commission made an error, the consequence follows that their determination became a nullity as being made in excess of jurisdiction. In agreement with Sellers, Diplock, and Russell, L.JJ (C.A.) I consider that the Commission acted entirely within their designed area of jurisdiction. Appeal Dismissed. LORD PEARCE It is for the courts to decide the true construction of the statute which defines the area of a tribunal’s jurisdiction. It is the way in which the courts have acted in a supervisory capacity. Courts have been careful to distinguish their intervention whether on excess of jurisdiction or error of law from an appellate function. Their jurisdiction over inferior tribunals is SUPERVISORY, not REVIEW. Quoting Mellor, J; in Ex. P. Bradlaugh It is well established that the provision taking any the certiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a metropolitan magistrate could make any order he pleased without question. “That supervision goes to two points; one is the area of the inferior jurisdiction and the qualifications and conditions of its existence, the other is the observance of the law in the course of its exercise.” R v Nat Bell Liquors, Ltd. The Commission on the other hand, construed the order as giving them jurisdiction to enquire and be satisfied on two other points; Since they were not satisfied on these they rejected the claim. If their construction is correct, they were entitled to do so and have not exceeded their jurisdiction. Once the appellant proved their identity as persons mentioned in Annex E of the Anglo-Egyptian treaty and their nationality, did they also have to prove, on a true construction of the order, that they had no successor in title; successor in title meaning for this purpose successor to the claim against Egypt [later transmuted by the treaty into a claim to participate in the compensation)? If so, did they have to prove further that any such successor also fulfilled the nationality qualifications? If the appellants had to prove those additional things, admittedly their claim fails. If they did not then the enquiry made was not the limited enquiry directed by Parliament In my opinion, the Commission’s construction of article 4 necessitates an unjustifiable writing in of words and leads to quite needless complexity and difficulty. The appellant’s construction, however, gives a more direct interpretation which is in accordance with the general intention shown by the treaty and the Order in Council. I therefore, prefer the learned judge’s construction of article 4 as being simpler, more literal and more in accordance with the general intention of the Order in Council and the Treaty with which it is concerned. I would allow the appeal and restore the Order of BROWNE, J. LORD WILBERFORCE The cases in which a tribunal has been held to have passed outside its proper limits are not limited to those in which it had no power to enter on its enquiry or its jurisdiction, or has not satisfied a condition precedent. The present case, in my opinion, and it is at this point that I respectfully differ from the C.A., is of this kind. Reasons for agreeing with BROWNE, J’s judgment:- 1. We must accept that the order uses “successors” as including successors on death and the question is whether in addition the word includes assignees. 2. Article 10 provides that, in assessing any loss, the Commission shall have regard to any compensation or recoupment in respect of that loss which the applicant has received from any other source. It seems very appropriately to fit such a case as the appellants’ where, whether by “assignment” or not, the original owner has succeeded in obtaining some ‘recoupment’ for loss of his property. 3. Article 4 should be read as if it imposed three conditions only on satisfaction of which the appellants were entitled, under statutory direction, to have their claim admitted, namely (a) That their application relates to property in Egypt referred to in Annex E. (b) That they were the persons referred to in the Annex E para 1 (a) as the owners of the property, (c) That they were British Nationals at the specified dates. As, ex consessis, all these conditions were fulfilled, to the satisfaction of the Commission, the appellants claim was in law established; the Commission by seeking to impose another condition, now warranted by the order, were acting outside their remitted powers and made no determination of that which they alone could determine. Appeal allowed; order of BROWNE, J. restored. LORD PEARSON The claims referred to were until the treaty was made outstanding claims against the Egyptian government for restitution or compensation under the Treaty (1962) the Egyptian government paid to the UK government a sum in full and final settlement of these claims. That was an international transaction between governments. The claims would not be claims to participate in the distribution of the fund, but they would be derived from, rooted in, and identifiable with the previous claims against the Egyptian government. The claimant must be the person who was the owner at the time of such sale or his successor in title. Both must be British Nationals both on 31.10.1956 and on 28.2.1959. Both of them must have been British Nationals on both of the specified dates. The Commission construed the article correctly and did not ask themselves any questions or exceed their jurisdiction in any way. Having so construed the article, the Commission had to make a decision as to the effect of the November agreement. They decided that, by that agreement, the claim passed to TEDO, and so was at the date of the Treasury foreign-led and, therefore, it was excluded by provisions of article 4 (1) (b) (ii) from participation in the fund. The decision as to the effect of the November agreement, whether right or wrong, was plainly within their jurisdiction and therefore by virtue of s. 4(4) of the Foreign Compensation Act 1950, it cannot be called in question in any court. Appeal Dismissed. 9. HIGH COURT OF TANZANIA AT DAR ES SALAAM MISCELLANEOUS CIVIL CAUSE No. 37 of 1980 In The Matter of an Application by AMRI JUMA and & ORS. For Orders of certiorari and Mandamus And In the Matter of the decision of the Labour Conciliation Board, Temeke District under the Security of Employment Act, Cap 574 B E T W E E N AMRI JUMA & 15 ORS. ______ Applicants And 1. Tanzania Harbours Authority (THA) } ______ Respondents 2. Labour Conciliation Board, Temeke District } MAPIGANO, J. (a) Order of CERTIORARI to bring up and quash the decision of the Conciliation Board at Temeke, DSM, delivered on 15/5/1980, affirming the Termination of the services of the Applicants in Reference by the applicants against the termination. (b) Order of MANDAMUS directing the said Board to hear and determine the Reference in accordance with the law and the Principles of Natural Justice. FACTS: Applicants employed on various jobs by THA had long standing grievances against employer. - Called at State House in the hope of seeing the President, instead, saw Minister Natepe. - 5/4/1980 employment terminated in the interests of efficiency of the Authority. - Aggrieved by the said termination, they set out to challenge it with a view to reinstatement. Affidavit Depositions Reported to JUWATA & CCM 8/4/1980 (5) Advised to take terminal benefits and later pursue demands at District level. (6) 29/4/1980 filled forms to make a Reference to the Labour Conciliation Board, Temeke District. (7) 15/5/1980 applicants arrived at Labour Office in Temeke for the hearing of their Reference. While waiting outside the office of Mr. Njonjo; a Labour Officer and Chairman of the said Conciliation Board Messrs. J.N. Msangi & A.A. Diwani, The representatives of THA, and Messrs. Saidi Mwinchande & J.S. Kinyogoli; the Chairman and Secretary of the JUWATA Branch at the workplace respectively arrived and went straight into Mr. Njonjo’s office. Mr. Njonjo took them to the room where the said Conciliation eventually held the hearing. After a few minutes Messrs. C.S. Chambo & M.M. Hassan, members of the said Board, arrived and went into the said room. (8) Representatives of THA spent 20 minutes closeted in the said room discussing with the members and the Chairman of the said Board before 3 applicants were called in. The rest of the applicants were waiting outside. (9) Applicants were never informed of what transpired during their absence and behind their backs (referred to in 9 above). (10) 15/5/1980 the said Conciliation Board after hearing, decided that the termination of employment of the applicants was right and justified. Reasons for Justification by the Board 1. Termination was in the interest of the THA’s efficiency and productivity and economy of the country. 2. Applicant’s procession to the State House was unlawful and dangerous act. 3. Reference was in any event Incompetent and Misconceived on the ground that the applicants had already received their terminal emoluments(benefits). 4 Grounds for Application (Shivji, Counsel) 1. The Conciliation Board (CB) failed to follow the Principles of Natural Justice (PNJ). 2. CB exceeded its jurisdiction and failed to act judicially. 3. Decision of the CB was Unreasonable and manifestly unjust. 4. Decision of the CB displayed manifest errors of law on its face (errors of law on the face of the record). Amplification of GROUNDS by Shivji (Counsel) 1. The CB was a Quasi-judicial body, and therefore its proceedings were subject to JR by certiorari. THA Reply – (Abubakar):- sought to Impeach the competence of the application that it was premature because applicants had exhausted their right of further reference to the Minister as provided for by Statute (The Security of Employment Act – SEA). Shivji’s Reply Applicants are not seeking to challenge THE DECISION ON MERIT but on the basis that THE DECISION WAS A NULLITY AT LAW. There is no decision at all to take to the Minister. 2. Non observance of the PNJ – paras 8 – 10 of Affidavit. CB did not call any evidence or elicit any information touching on the question of efficiency and productivity of the THA. 2nd Ground:- The CB took extraneous and irrelevant matters into consideration i.e. the alleged unlawful procession to the State House and it was wrong for the CB to find the applicants guilty of disciplinary offences which were neither specified or particularised. 3rd Ground:- No factual basis for the finding that the continued employment of the applicants would adversely affect the efficiency and productivity of the THA. Errors of Law on the CB 1. The visit by the applicants to the State House was an unlawful procession or demonstration, and 2. Applicants had no right of Reference simply because they had already taken their terminal benefits. THA (Abubakar):- Supported CB’s decision – • Was fair. • Conceded on the taking place of conversation excluding applicants (tete a tete). • It was objectionable but not fatal as applicants were accorded a full hearing by the CB • Application premature and incompetent. COURT’S REASONING: The tete a tete between members of the CB and the Representatives of THA was doubtlessly improper, disconcerting and objectionable. Subject of that conversation was not revealed to the Applicants. Respondents had not filed any counter-affidavit. Board had gone further and refused to acknowledge receipt of the Summons. No one who had lost a case would believe he had been fairly treated if the other side had access to the Tribunal behind his back. Degree of informality enjoyed by the Tribunal’s officials should not operate to offend the PNJs. CB made error of law when it held that the taking of Terminal Benefits by the Applicants fatally prejudiced their case. Circumstances of their agreeing to take those Benefits as deposed in the Affidavit and saying the receipt of those emoluments automatically and effectively deprived applicants of their statutory right of making a Reference to the CB was clearly a mistake. CB proceeded further and firmly said that the procession was unlawful. There was nothing material which could have led a reasonable Tribunal to positively pronounce so. HOLDING: Reference was not properly dealt with by the CB, and I will grant this Application. CB proceedings nullified. Mandamus granted. CB differently constituted, is directed to hear and determine the Reference in accordance with the provisions of the SEA and PNJ. 10. RE AN APPLICATION BY BUKOBA GYMKHANA CLUB (1963) E.A. 478: Coram: (Reid, J.) This was an application for the issue of a Writ of Certiorari to remove into the High Court and to quash an order of the Bukoba Township Liquor Licensing Board (The Board) rejecting an application by the Bukoba Gymkhana Club (the Club), for the grant under the Liquor Licensing Ordinance (the Ordinance) of a “club licence” and also for a Writ of Mandamus that the Board hear and determine the application according to law. The fate of the licence application was a letter from the Secretary of the Board dated 13/9/1962 – Regret letter. Applicants for membership of the Club had to be proposed and seconded by a member. The allegation that the Club’s Constitution is still largely discriminatory. Grounds on which the Order for the Issue of the Writs was sought are: 1. The Board failed to hear and determine the said application according to law. 2. The Board failed to act judicially in their determination. 3. The Board in purporting to determine the application failed properly to exercise discretion vested in them under the provisions of the Intoxicating Liquors Ordinance as amended. 4. The Board in purporting to determine the application were actuated by or purported to be actuated by extraneous circumstances, namely the Rules providing for election of Members to the said Bukoba Gymkhana Club. Applicant’s Ground (Mann) for the Application:- Assuming that the Board has a discretion to refuse a licence to a club because its rules are improperly discriminatory, then there was no element of discrimination in the club rules upon which the Board could exercise that discretion in this case, that the Board must have known that there was so, and that it did into arrive at its decision judicially. s.6 of the Liquor Licensing Ordinance:- “an application for a licence shall be heard by the board having jurisdiction over the area within which the premises for which a licence is sought are situated and such Board may in its discretion grant or refuse such application.” Mr. McLeod (State Attorney) for the Board:- Proposing and seconding by members means that all persons who may wish to join the club may not have an equal opportunity of doing so, since they may not know two(2) members to propose and second them, and this inequality of opportunity constitutes discrimination. REIDE, J. Bukoba Gymkhana Club purposes are SOCIAL & RECREATIONAL. It has one of its objects the creation and maintenance of a membership of persons who in a wide sense have common interests (read racist) and whose company will be agreeable to one another. Most natural and reasonable that such a club should be able to exercise some control to ensure that these legitimate objects are achieved, and the usual way of doing this is by a procedure of proposing and seconding candidates and, possibly by ballot. - Such discrimination is not discrimination in any ordinary sense of the word, is neither improper nor unfair and is not a proper ground for the exercise of a Board’s discretion under s.6. McLeod Arguments: 1. The Board is an administrative rather than judicial body. Reide,J. ‘a body of persona having legal authority to determine questions affecting the rights of subjects’. In R v Woodhouse (2) (1906) 2 KB 501, 512; Vaughan Williams, L. J. said “the grant or refusal of such a licence is a judicial act.” 2. The Board has an “unfettered discretion” to reject a licence applications.13 & 17, s.6 “such conditions as it thinks expedient” and to transfer or remove licences “in its discretion” “subject to such conditions as it may see fit to impose.” Reide, J:- Wherever the legislature has used the word DISCRETION in connection with the Board’s powers, either with or without qualifying words or phrases, then, if the Board fails to exercise its discretion judicially, or acts capriciously or unreasonably the writs may be invoked. 3. The Board’s Order was not a speaking order (that is an order which “tells its own story”) and that therefore this court could not on certiorari enquire whether the Board had come to a right conclusion on the facts, as it might do if the order were speaking. If the Board had discretion to inquire whether the club rules were improperly discriminatory; That if the proceedings were regular upon their face; This court could not grant certiorari on the ground that the Board had misconceived a point of law, and could not purport to exercise an appellate jurisdiction by varying the Board’s Order. Reide, J. reasoning (a) Board’s Order should be considered as consisting of – (i) Its letter of 13/9/1962 (ii) Its explanation to members (club) of 4/10/1962, and so as being a “speaking” Order. The question whether the defects in the Board’s procedure or the form of the order are such as to enable a court to proceed by certiorari on those grounds does not affect the courts’ power and duty to grant certiorari in proper cases where there has been a failure to exercise a discretion judicially or a failure of natural justice. 4. The Board acted reasonably and that no failure of justice has resulted to the Club. Reide, J. reasoning 1. Mr. MacLeod has apparently overlooked the fact that the Club was without a licence from 18/10 to 27/11. 2. The question whether there has been a failure of justice does not depend on the period during which the Club was unlicensed or the inconvenience to which it has been put in bringing these proceedings. FAILURE OF JUSTIC (it) derives and it is created by the BOARD’S IMPROPER DETERMINATION OF THE APPLICATION. 5.The High Court will not question by mandamus the honest decision of a Tribunal, even though erroneous in matters of law, or fact, on matters within its jurisdiction. R v Port of London Authority (1919) 1 KB 176, Bankes, J. Where, however, a tribunal has in substance shut its ears to the application made to it and has determined on an application not made to it, it will be held to have refused to exercise its jurisdiction, and a mandamus will issue ordering it to hear and determine. Thus in a case where “…mandamus may nonetheless issue to the tribunal on this ground, if the tribunal has been influenced by extraneous considerations.” The Board’s decision was not only influenced by, but was indeed based on the fact that the club’s rules provided that candidates for membership must be proposed and seconded by members. The fact was a consideration extraneous to the proper scope of the exercise of the board’s discretion. 6.The Board’s authority to grant licences was permissive only and did not amount to a duty imposed my law and that in such a case the Writ will not lie. REIDE, J. 1. That is not, and was not intended to be, an exhaustive definition of the scope within which the writ operates. 2. That it is necessary to distinguish between “a duty to grant a licence to a particular applicant” and a duty to “consider licence applications generally and to grant or refuse them in accordance with law and in the exercise of a judicial discretion”. The ordinance imposes the second duty. Order as prayed. PRINCIPLES OF NATURAL JUSTICE CASES - 19/3/1999 11. PRIVY COUNCIL B. SURINGER SINGH KANDA v GOVERNMENT OF THE FEDERATION OF MALAYA (1962) A.C. 322 Coram: Lord Denning, Lord Hodson, Lord Devlin. Facts: - July, 1958 In July, 1958, the Commissioner of Police in Malaya purported to dismiss the appellant, an Inspector of Police, on the ground that at an inquiry before an adjudicating officer he had been found guilty on a charge of failing to disclose evidence at a criminal trial. While under the law as it existed before 31/8/1957 the Commissioner had, pursuant to the Police Ordinance, 1952, power to dismiss an Inspector, the appellant contended that after the coming into force of the Constitution that power was only in the Police Service Commission, to which the Commissioner was a Subordinate authority, and he sought a declaration that his purported dismissal by the Commissioner was void and of no effect. Held: 1. That the provisions in art. 144 (1) of the Constitution that the functions of the Police Service Commission were “subject to the provisions of any existing law” meant only such provisions as were consistent with the Commission carrying out the duty entrusted to it. Where, however, as here, there was a conflict between the existing law and the Constitution the former would have to b e modified so as to accord with the latter, and the court itself, where the Head of the Federation of Malaya had not done so under art. 102 (4) of the Constitution within the prescribed time limit, could and would under art. 162 (6) make the necessary modification in the powers of the Commissioner of Police. There could not, at one and the same time, be two authorities with concurrent power to appoint members of the Police service. The Constitution must prevail and the existing law must be applied with such modification as might be necessary to bring it into accord with it. Accordingly since Merdeka Day (31/8/1957) the Commission and not the Commissioner had power to appoint and dismiss members of the police service and the dismissal of the appellant by the Commissioner was therefore void. 2. That the failure to supply the appellant with a copy of the report of the board of inquiry, which contained matter highly prejudicial to him and which had been sent to and read by the adjudicating officer before he sat to inquire into the charge, amounted to a failure to afford the appellant “a reasonable opportunity f being heard” in answer to the charge within the meaning of art. 135 (2) of the Constitution and to a denial of natural justice. Order of the C.A. of the Supreme Court of the Federation of Malaya reversed. Appellant brought an action in the High Court challenging his dismissal on 7/7/1958 by the Commissioner of Police on the ground that he had been guilty of an offence against discipline. Rigby, J. declared his dismissal void and of no effect. Government appealed. At C.A. allowed the appeal and held that Inspector Kanda was validly dismissed. He appealed to the Privy Council. Issues: - (i) Whether the Commissioner of Police had any power to dismiss him (Kanda). He hadn’t (ii) Whether the proceedings which resulted in his dismissal were conducted in accordance with natural justice. They were not. Rodney Bax for appellant: - 1. Dismissal invalid because Commissioner on that date no longer had power to dismiss him. 2. The purported dismissal was invalid because he was not given a reasonable opportunity of being heard, in accordance with the provisions of art. 135 (2) of the Constitution, in that the terms of the findings of the Board of inquiry were before the adjudicating officer but unknown to the appellant, who never had any knowledge of the contents of the report until about the 4th day of the trial of the action. The actual words used in the report were of the utmost importance. At the very least the appellant should have been told what was in the report. In the present case the adjudicating officer was in fact carrying out the duties of both judge and prosecuting counsel. One has to make up one’s mind whether there was a reasonable likelihood of bias. Bax for Respondent: - Police Regulations which applied before Merdeka day were thereafter to be applied by the Police Service Commission. Lord Denning 1. The power of the Commissioner to dismiss. On July 7, 1958, the Police Service Commission was the authority to appoint an officer of the rank of Inspector Kanda and therefore under art. 135 (1) it was the authority to dismiss him. The Commissioner of Police had no authority to dismiss Inspector Kanda as he did. The dismissal was therefore void. 2. The reasonable opportunity to be heard. Art. 135 (2) – “No member of such a service as aforesaid [the Police Service is one of these] shall be dismissed or reduced in rank without being given a reasonable opportunity of being heard.” (audi alteram partem). If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know that evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them … The judge or whoever adjudicates must not hear evidence or receive representations from one side behind the back of the other. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. Privy Council agrees with Rigby, J. in “the furnishing of a copy of the findings of the board of inquiry to the adjudicating officer (AO) appointed to hear the disciplinary charges, coupled with the fact that no such copy was furnished to the plaintiff, amounted to such a denial of natural justice as to entitle this court to set aside those proceedings on this ground. It amounted in my view, to a failure to afford the plaintiff a reasonable opportunity of being heard in answer to the charge preferred against him which resulted in his dismissal”… But their Lordships do not think it was correct to let him have the report of the board of inquiry unless the accused also had it so as to be able to correct or contradict the statements in it to his prejudice. APPEAL ALLOWED; DISMISSAL VOID, INOPERATIVE, AND OF NO EFFECT. Comment: Mwakibete’s case should have been argued following this reasoning. 12. R v KENT POLICE AUTHORITY & ORS, Ex parte GODDEN (1971) 2 QB 662 – Coram: Lord Denning, M.R., Salmond & Karminski L.JJ. Natural Justice – Quasi-Judicial decision – Police Authority – Compulsory Retirement – Decision as to permanent mental disablement – Whether of judicial character – Duty to act fairly. Police Pensions Regulations 1971, reg. 70 (2). Police – Pension – Compulsory Retirement – Mental Health – Decision of duly qualified Practitioner as to permanent disablement – Whether of judicial character – Duty to act fairly – Police Pensions Regulations 1971 reg. 70 (2). In 1969 the applicant, a police chief inspector, was transferred to administrative duties. He made accusations of unjust treatment against his superiors. A Chief Constable held an inquiry and reported in May, 1970 that there was no evidence of malpractice. The applicant was told the result of the inquiry but was not shown the report. July 4, 1970 applicant’s desk was searched by a Senior Officer. Erotic documents including a draft letter said to be in the applicant’s handwriting were removed. The applicant denied knowledge of the documents. It was arranged for the applicant to be seen by the chief medical officer of the force, who was supplied with a copy of the report of May 1970 and the documents. He saw the applicant and on 23/7/1970, reported that after reading the reports he formed the opinion that the applicant was “suffering from a metal disorder of paranoid type.” On 31/7/1970, he certified that the applicant was unfit for police duty on the same ground. The applicant was put on sick leave. The applicant saw his own doctor who sent him to a consultant psychiatrist. The Consultant psychiatrist reported on 18/8/1970, that the applicant was “psychiatrically completely normal” and on 17/5/1971, that in his opinion he was “normal psychiatrically and in good mental and physical health.” The police would not allow the consultant psychiatrist to see the report of May, 1970. The Police authority took steps compulsorily to retire the applicant. On January 22, 1971, they notified the applicant that they had selected the same chief medical officer as their “duly qualified practitioner” to determine whether the applicant was “permanently disabled” under regulation 70 (2) of The Police Pensions Regulations, 1971. The Applicant sought orders of PROHIBITION & MANDAMUS. The Divisional Court dismissed the applications. On Appeal by the applicant to the C.A., Held: Allowing the appeal 1. That the medical practitioner giving a decision as to whether a person was permanently disabled under regulation 70 (2) of the Police Pensions Regulations 1971 was performing a quasi-judicial function and under a duty to act fairly. 2. Decisions leading to compulsory retirement must conform to the rules of natural justice. 3. That since the Chief Medical Officer had already expressed a view adverse to the applicant an order of PROHIBITION should go to prohibit him from determining whether the applicant was permanently disabled under the regulations. 4. That the applicant’s medical consultants were entitled to see all the material placed before any other doctor and an order of MANDAMUS should go to the Police Authority that if at any time consideration were given as to whether the applicant was permanently disabled within the regulations they should supply to his medical consultant all material which was placed by them before any duly qualified medical practitioner selected y them under regulation 70. Decision of the Divisional Court REVERSED. BRYAN ANNS for Applicant: - 1. There is a duty to act fairly even though proceedings may not be judicial or quasi-judicial. 2. In view of Dr. Crosbie Brown’s previous involvement and his repeated opinion based on reports it was open to doubt whether he should act fairly. 3. The Divisional Court wee wrong in not admitting the evidence of Dr. Hordern who had examined the applicant and found him to be wholly normal. 4. There is no Dr/patient relationship (i)Dr. Crosbie Brown is not concerned with treatment. (ii) He is not asked for an opinion. What was referred to the Doctor under regulation 70 (2) was a “decision” on two questions: - Whether the applicant was disabled; i.e. not able to perform the ordinary duties of a police officer. - Whether the disablement was likely to be permanent. A doctor sitting as a “duly qualified medical practitioner” under regulation 70 (2) sat in an adjudicatory capacity. Facts show the respondents to this application have become so biased against the applicant that it is unsafe to allow the proceedings to continue. It would be wholly wrong for such a dr. (Dr. Crosbie) to refuse to see a report from or to listen to a representation from the applicant’s own medical adviser. Kent Police Authority are appointing someone in Dr. Crosbie Brown who has already made up his mind. The decision is a very important one for the applicant. Mere fear of a libel action doesn’t justify non-disclosure of the Pratt Report to the applicant and his medical advisers. RAYMOND SEARS for Respondents: - 1. The normal relationship of Master and Servant enables the master to get rid of the servant when he is disabled. 2. What has to be discovered is whether the examining doctor has acted fairly. 3. A purely administrative action is not open to supervision. Prohibition will not lie to affect a purely administrative act. 4. The duty of the “duly qualified medical practitioner” under regulation 70 (2) is to come to a fair and honest decision which is not subject to the control of the courts. 5. There is a right of appeal “if the person concerned is dissatisfied with the decision” under regulation 70 (3) to the Secretary of State who shall appoint an independent person to decide the appeal. 6. Respondents have not acted in excess of jurisdiction. LORD DENNING: - If Dr. Crosbie was allowed to decide the matter, justice would not be seen to be done. Dr. Crosbie Brown is disqualified – - To prohibit Dr. Crosbie Brown from determining whether Chief Inspector Godden was permanently disabled “within the police pension’s regulations for the time being in force.” - Police authority should refer the matter for decision to some duly qualified medical practitioner who has had no part in the case hitherto. Whoever is entrusted with the decision should have before him all material relative to the state of mind of Chief Inspector Godden, whether it is for him or against him. Inspector Godden’s own medical advisors should see the material before them upon which to give their opinion as that which is placed before any other Doctor who is considering the matter. Justice does not require that Inspector Godden himself should see the report (Pratt). 13. HYPOLITO CASSIANO de SOUZA v CHAIRMAN & MEMBER TOWN COUNCIL (1961) E.A. 377 A Complaint was made by two Councillors against appellant (Ag. Fire Master) employee of Tanga Town Council. One of the complainants was Chairman of Traffic Fire, Lighting and Police Liaison Committee. He alleged that a Fireman had been found in Appellant’s house at working hours in circumstances which indicated that he was employed as personal servant of appellant. The complaint was made to Assistant Engineer who was at the time in charge of department controlling the Fire Brigade. The Complaint was investigated by the Town Clerk who made a report to the Committee at which one of the complainants presided. The appellant was summoned and informed by the Committee of the allegations and was asked to reply. The Assistant Engineer was also present. After hearing the appellant the Committee resolved to suspend the appellant from duty and recommended to the Town Council that subject to any recommendation of the Finance Committee on appeal by the appellant he be dismissed from service. Subsequently the appellant and his advocate were called to attend the Finance Committee which was entrusted with the hearing of appeals under Regulation 10 (d) of the Staff Regulations. They were kept waiting for more than 15 minutes. No disclosure was made to the appellant or his advocate of the nature of the discussion but from the Town Clerk’s Affidavit the discussion was said to be for purpose of settling any preliminary points regarding procedure to be adopted at the hearing. When hearing commenced, advocate asked for particulars of the charge against his client but he was told that his client had already been informed of these and the Committee refused to give him any further information. The appellant’s advocate then asked for and obtained leave to withdraw and did so. The Committee continued with the hearing and recommended the appellant’s dismissal, which was confirmed by the Council. Under the Staff Regulations of the Council it is provided that the Officer in charge of each department is responsible for discipline, that any complaint of misconduct is to be investigated by that officer who can suspend any member of his staff for gross misconduct, and if the Committee resolved to relegate or dismiss an officer, its proposal has to be conveyed to the employee by a letter signed by the Town Clerk stating the grounds of which the proposed action was based. That on receipt of the letter the employee could appeal to the Finance Committee and that the report of the Committee must be submitted to the Council for appropriate action. The appellant applied to the High Court for Writ of Certiorari and Mandamus asking that the recommendation of the Finance Committee be quashed and that the Committee be directed to hear his appeal in accordance with the principles of natural justice. The application was refused and the trial judge held that the Staff Regulations did not provide for quasi-judicial proceedings at first instance. That what Finance Committee was to hear was an appeal, that it wasn’t incumbent on the Committee to take evidence, and that it could obtain information in any way it thought best; provided a fair opportunity is given to the parties to correct or contradict any relevant and prejudicial statement. The appellant thereupon appealed with the leave of the trial judge. Held: 1. Regulation 10 of Staff Regulations contemplated that the suspension of an employee should be by the officer i/c of the department after consultation with the Town Clerk, the suspension to be followed by a report to the appropriate Committee; it did not empower the Committee to suspend an employee but it could propose relegation or dismissal and such disposal was to be conveyed to the employee by the Town Clerk by letter stating the grounds for proposed action. 2. The hearing before Finance Committee was clearly a judicial or quasi-judicial proceeding and while there was no objection whatever to discussion of the matters beforehand in private and arraigning procedure, it was objectionable, though not of itself fatal, that the Complainants should be closeted with the Finance Committee for 15 minutes before the applicant was admitted, it was immaterial that their presence may not have influenced the decision. 3. It was difficult to conceive any tribunal which intended fairly to listen to both sides would not give some information to an appellant whose advocate said he was embarrassed by not knowing the precise case which he had to meet. 4. Regulation 10 of Staff Regulations had not been complied with and the PNJ that a fair opportunity must be given to contradict any statement prejudicial to the view of a defendant was contravened also, since the appellant did not sufficiently know what the case against him was at that stage. APPEAL ALLOWED: Certiorari granted to being up and quash the decision of Finance Committee and the decision of the Council dismissing appellant. Mandamus granted - addressed to Chairman and Members of Tanga Town Council directing them to hear and determine the Complaint against the applicant in accordance with provisions of Staff Regulations and PNJ. 14. RIDGE v BALDWIN (1964) AC 40 Ridge, Chief Constable of Brighton, was arrested in October, 1957 and charged with conspiracy to obstruct the course of justice. A few days later he was suspended from duty by the Watch Committee. February, 1958 on a charge of corruption against Ridge, no evidence was offered, but the judge remarked on the need of the Brighton Police Force for a new and better leader. On his acquittal, Ridge applied to be reinstated, but the Watch Committee on the next day decided that he had between negligent in the discharge of his duty and dismissed him under purported exercise of their powers. No specific charge was noticed to him, and he was not given an opportunity of being heard. The Home Secretary dismissed Ridge’s appeal under the then existing Police Acts and Regulations. Ridge then brought an action against Baldwin and other members of the Watch Committee for a declaration that his dismissal was illegal, ultra vires and void, and for payment of salary from the date of the purported dismissal, or alternatively for payment of pension from that date and damages. The House of Lords allowed the appeal. 15. N.I.N MUNUO NG’UNI v JUDGE-in-CHARGE and the ATTORNEY GENERAL (1998) TLR 464 - Constitutional Issues, etc. [Mapigano, Mchome & Rugakingira, JJ] Natural justice – the right to be heard – Initiating procedure and the right to be heard – Advocate suspended from practice pending reference to the High Court – Whether the advocate was entitled to a hearing before being suspended – Section 22(2)(b) of the Advocates Ordinance and Art. 13(6)(b) of the Constitution of the United Republic. Basic Rights – Forced Labour – Prohibition of forced labour – Statutory legal aid scheme imposing a requirement upon advocate to provide legal services – Whether the scheme amounts to forced labour – Section 3 of the Legal Aid (Criminal Proceedings) Act 1969 (No. 21 of 1969) and Art. 25(2) of the Constitution of the United Republic. Basic Rights – The right to a just return for one’s work – Statute prescribing Tshs.500/= as the maximum fee payable to an advocate for acting in a proceeding or representing an accused person – Whether a denial of basic right to a just return for one’s work – Section 4 (2) of the Legal Aid (Criminal Proceedings) Act 1969 (No.21 of 1969), and Art. 23(2) of the Constitution of the United Republic. Constitution – Separation of Powers and Functions – Legislative powers and processes – Whether the executive has any role or duty to influence or initiate legislation – Article 59 (3) of the Constitution of the United Republic and s.5 of the Constitution [Consequential, Transitional and Temporary Provisions] Act 1984, Act No. 16 of 1984. Statute – Applicability of statutory provision – Provision of an Act of Parliament requiring the High Court to declare an unconstitutional a statutory provision that offends the Constitution – Applicability thereof - Section 13 (2)(a) of the Basic Rights and Duties Enforcement Act, 1994, Act No. 33 of 1994. Bill of Rights – Breach of Bill of Rights – Damages for Breach of Constitutional right – Whether damages may be awarded for contravention of the Bill of Rights – Article 30 (3) of the Constitution of the United Republic. Damages – Special Damages – Special damages not specifically pleaded but evidence and arguments heard on them – Whether the court may award such damages. The petitioner, a practicing advocate based in Arusha, was assigned six briefs under s.3 of the Legal Aid (Criminal Proceedings) Act 1969, Act. No. 21 of 1969, requiring him to proceed to Babati to defend some accused persons facing murder charges. He refused to accept the assigned briefs. The first respondent immediately suspended him from practicing as advocate, acting under s. 22(1) and (2) of the Advocates Ordinance. The petitioner then brought this petition before the High Court, alleging breach of his basic rights by the first respondent and praying for a declaration that Act No. 21 of 1969 was ultra vires the Constitution, a declaration that his suspension from practice was null and void, and for damages. Held: 1. Although in a preliminary or initiating procedure for disciplinary action there would often be no requirement to accord the right to be heard, that is not an absolute rule: citing Ress v Crane (1994) 2 W.L.R. 476; 2. Where a person’s livelihood is at issue and an adverse consequence would reflect upon one’s reputation or status because of suspension, such person may be entitled to a hearing before being suspended notwithstanding that the suspension is merely an act of initiating disciplinary proceedings; 3. In suspending the petitioner under s.22 (2)(b) of the Advocates Ordinance the first respondent was initiating disciplinary proceedings but in the circumstances of this case, where suspension would take way his means of earning a livelihood and impute on his character, the petitioner was entitled to a hearing before being suspended; 4. The right to livelihood, or to work, is a constitutional right which in some jurisdictions is actually equated with the right to life; it cannot be suspended without a hearing; 5. The assignment of the legal aid briefs, which the petitioner refused to accept and was suspended as a consequence, was not made by the first respondent, in suspending the petitioner, therefore, the first respondent did not act as a judge in his own cause; 6. The “nemo judex re sua” principle does not extend to every decision making; in this case even if it be accepted that the judge was so actively involved in the whole matter, the circumstances of the case did not require the judge to observe the nemo judex re sua principle; 7. In a constitutional petition like this one, the petitioner bears the burden of proof; however, in Tanzania it is settled that once it is shown that a basic right has been or is about to be infringed, the onus shifts to the opposite party to show, on a balance of probabilities, that the infringement was, or is, authorised in all essential respects: citing Attorney General v Lesinoi Ndeanai & Ors. (1980) TLR 239; 8. There is nothing basically wrong with s.3 of the Legal Aid (Criminal Proceedings) Act 1969, Act No. 21 of 1969, although it may be possible that it does not provide for adequate safeguards against arbitrary decisions; it is not intended by that provision that the assignment of legal aid briefs to advocates be arbitrary and if the assignment is done so arbitrarily, the fault is not in the law but in the person making the assignment; 9. The remunerations prescribed for advocates under s.4 of Act No. 21 of 1969, which provides for a maximum of Shs.500/= in respect of each proceeding handled or each accused person defended, are incredibly inadequate; 10. An advocate is to be remunerated for his services, and that means an advocate is to receive a just and favourable remuneration, according to the quantity and quality of the work he or she has done; section 4(2) of Act No. 21 of 1969 denies an advocate such remuneration and, therefore, infringes upon his or her basic right which is guaranteed under article 23(2) of the Constitution of the United Republic; 11. It is a legitimate province and duty of the executive, and thus the Attorney General, the second respondent, to influence legislation and propose repeals and amendments; 12. The purpose and objective of s.5(2) of the Constitution (Consequential, Transitional and Temporary Provisions) Act 1984, Act No. 16 of 1984, was to afford the Government sufficient time to repeal and/or amend statutory provisions which were ultra vires the Constitution, and a number of repeals and amendments have been made since the Act was passed but nothing has been done to make Act No. 21 of 1969 conform with the basic right provisions of the Constitution; as such there was neglect of duty by the second respondent. 13. Section 13(2)(a) of the Basic Rights and Duties Enforcement Act 1994, Act No. 33 of 1994, that requires this Court to allow an offending statutory provision, which the Court is satisfied is a nullity, to continue operating is an absurdity and impossible for the Court to apply with any sense of judicial candour; in the circumstances the Court has to invoke the principle of harmonization and the principle that fundamental rights provisions should be construed so as to make them meaningful and effective; 14. Section 4 (2) of Act No. 21 of 1969, not the whole Act, is unconstitutional and nullified to the extent that it provides for unjust remuneration to advocates rendering services under that Act; 15. The order suspending the petitioner from practice as an advocate is declared a nullity; 16. As Article 30(3) of the Constitution permits a party whose rights are contravened to institute proceedings for relief in the High Court and the construction of “relief”, like that of “remedy”, includes damages; accordingly, the petitioner was right to ask for damages in his petition and this Court can award damages; 17. The omission to specifically plead special damages in the petition is not fatal in the circumstances of this case and the Court can award them; ORDER ACCORDINGLY. CHUMCHUA s/o MARWA v OFFICER i/c of MUSOMA PRISON & ANOR., HIGH COURT OF TANZANIA AT MWANZA, MISCELLANEOUS CRIMINAL CAUSE No. 2 of 1988 In the Matter of an Application for a Writ of Habeas Corpus in respect of Marwa Wambura Magori and In the Matter of the United Republic of Tanzania (Unreported) Mwalusanya, J. On 29th September, 1987, the President of the United Republic of Tanzania (by then Julius Kambarage Nyerere) ordered the deportation of one Marwa Wambura and 155 others from Mara Region to Lindi Region. The grounds for their deportation were that the deportees, continued residence in Mara region was dangerous to peace and good order. While awaiting their deportation they were all detained in the Musoma prison. The son of the deportee Chumchuwa Marwa filed an application for a writ (read an order of) of habeas corpus in respect of his father. The Decision of the Court: 21. The Court raised the question of Constitutionality of the Deportation Ordinance, 1921. The issue was whether the Deportation Ordinance was constitutional. The Court held that the Deportation Ordinance, 1921 is unconstitutional for it offended the Bill of Rights contained in the Constitution of the United Republic of Tanzania, 1977. FACTS: This is an applicatrion for a writ of habeas corpus in respet of one Marwa Magori who is detained at Musoma Prison, Mara Region pending his deportation to Lindi Region. A deportation order was made by the President of the United Republic of Tanzania on 29/9/1987 in respect of this deportee and 155 others, so that they be deported to Lindi Region because “their continued residence within the Mara Region and the contiguous Regions was dangerous to peace and good order.” By the time the application came for hearing before me for the first time on 26/2/1988, it was said about half of the 156 deportees (including the deportee who is a subject matter of this case) had yet to be deported because of non-availability of suitable transport. This application was filed by the deportee’s son one Chumchua s/o Marwa. The Officer i/c of Musoma Prison appeared in person while the Attrorney-General was represented by a State Attorney Mr. Songoro. As expected the two respondents when asked to show cause as to why the deportee should not be released, they produced a photostat copy of a deportation order in respect of the 156 deportees. I have checked the deportation order and found that it is proper in that it has the required official seal and bears the signature of the President. All things being equal, the deportation order appears alright. Preliminary Point: 1. Whether the writ of habeas corpus is applicable to a deportee as distinct from a detainee. A Writ of habeas corpus is not open to a deportee at large in Tanzania. However, denial of a writ of habeas corpus does not mean that the deportee is without a remedy to challenge the deportation order, for the fundamental maxim ubi jus ibi remedium (there is no wrong without a remedy) is applicable to him. It is open to the deportee in such circumstances to seek relief by way of an order of certiorari or he may apply for a declaration that his restriction is illegal. However, in respect of the present applicant, I am satisfied that the writ of habeas corpus is open to him. Under s.5 of the deportation Ordinance (Cap 38 of Revised Laws of Tanzania Mainland) where a person is to be deported, the president is entitled to detain that person in custody or in prison, until a fit opportunity for his deportation occurs. As I have indicated earlier, the applicant’s father is still detained in Musoma Prison pending his deportation to Lindi Region. As he has not been sent to Lindi, then he is a detainee and this application is therefore in order. The case from Uganda decided by East Africa Court of Appeal in Grace Stuart Ibingira and Others v Uganda [1966] E.A. 445 (CA) supports this proposition of law that an application for a writ of habeas corpus is proper for a deportee who has been detained but not for one who is at large. Since the Incorporation of the Bill of Rights in our 1977 Constitution by Constitution (Fifth) [Amendment] Act, 1984, [Act No. 15 of 1984] the High Court under Article 30 (3) of the Constitution may declare any law void and of no effect, which infringes the basic human rights of the Constitution. That power of the High Court was kept in abeyance for a period of three years by Constitution (Consequential, Transitional and Temporary Provisions) Act, 1984 [Act. No. 16 of 1984] and that three years period expired on 16/3/1988 and so the High Court since then has the power to declare any law void for being unconstitutional. This case was heard on 22/3/1988 and for sure the High Court had that power. Preliminary Objection: Mr. Songoro for the Republic argued that since the detention was made on 29/9/1987 (expiry of 3 years on 16/3/1988) when the three year period had yet to expire, then the High Court has no power to declare any law void for being unconstitutional. I don’t agree. The Bill of Rights became operative on 16/3/1985 vide Constitution [Consequential, Transitional and Temporary Provisions] Act, 1984 and since then any organ of the government was enjoined to act in accordance with those basic human rights. It is not true that the observance of the Bill of Rights was also kept in abeyance for a three year period, what I know is that it is only the power of the court that was suspended for a three year period (justiciability). So the High Court in this case has power to consider the constitutionality of legislation. It may be asked as to whether the Bill of Rights may be enforced when the procedure and rules of the High Court for conducting such cases are yet to be enacted by the government as indicated in Article 30 (4) of the Constitution. In my judgment the High Court may enforce the Bill of Rights without the requisite rules of the court because that Article provides that the government “may” enact such rules of the Court. So it is not a must (not mandatory) that such rules are enacted prior to the enforcement of the Bill of Rights. Preliminary Objection: (suo moto – by itself) The Tanzania Bill of Rights does not expressly provide for the constitutional remedies available to a claimant, by implication the High Court shall have power inherent in itself to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warrants and certiorari… So our High Court should not feel shy to enforce the fundamental rights notwithstanding the fact that the government has yet to enact rules of procedure for the enforcement of the same. The Crucial question: Whether the Deportation Ordinance, 1921 is constitutional or it offends the fundamental rights enumerated in our Bill of Rights? A radical Tanzanian Lawyer Mr. Harrison George Mwakyembe in the book The State and the Working People of Tanzania has complained that the Bill of Rights is “so well punctured with numerous savings and exemptions that the Bill of Rights has been rendered an empty shell.” He argues that what been given by one hand, has been taken away by another hand. For sure, a superficial reading of the limitations and restrictions on the Bill of Rights would lead one to conclude as did Mr. Mwakyembe, that the Bill of Rights has been rendered an empty shell. However, I am of the considered view that the position is no so bleak. For one thing, it is salutary to remember what the late Mwakasendo, J.A. told us in the case of Attorney-General v Lesinoi Ndeinai & Joseph Selayo Laizer and Two Others [(1980) TLR 214, at 239)] where he said: “The liberty of the individual is so precious and fundamental to the concept of the Rule of Law that the Courts are duty bound to see that it is not taken way except under express provisions of the law of the land.” And it is conceded that it is a well known principle of statutory interpretation that an Act of Parliament must be presumed to be intra vires the Constitution. However once the applicant shows that a piece of legislation is ex-facie ultra vires the Constitution, then the onus shifts on the State to show that, that piece of legislation is saved by the saving provisions… Those are sensible principles, which I recommend should be adopted in Tanzania by our courts in interpreting the Constitution, if the Bill of Rights is not to exist in theory only. This is because I believe that the Rule of law means more than acting in accordance with the law. The Rule of Law must also mean fairness of the government. Rule of Law should extend to the examination of the ideal; and that the 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 (wasn’t he replying to someone who said he could be a dictator?) 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 het laws themselves are not fair but are oppressive and degrading. The courts have to bridge the yawning gap between the letter of the law and reality in the field of Rule of Law… …I am of the considered view that the Deportation Ordinance is not law as it violates the fundamental right of “equal protection of the law” under Article 13. Any law to be valid under Article 13 (6) (a) which vests in any organ of the government the power to decide a matter affecting the rights of a citizen must contain a provision for the principle of natural justice that is the “right to be heard”. The audi alteram partem rule is an integral part of any reasonable, fair and just procedure that seeks to deprive a person of his personal liberty. The rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity of being heard is a cardinal principle of justice. Parliament may not deprive a person of a right to a fair hearing in accordance with the principle of fundamental justice for the determination of his rights and obligations. The right to a hearing made its first from God in the Garden of Eden. In the famous English case known as the Bentley’s Case {Orse. known as The King v University of Cambridge (1723) 1 Str. 557 and (1723 Fortes Rep. 202} one of the judges observed that even Adam had been called upon by God to meet the charge of having eaten of the forbidden tree, before suffering expulsion. Therefore in so far as the Deportation Ordinance does not provide for a right to be heard it violates a fundamental right provided in Article 13 and so it is void and of no effect. The same Article 13 (6) (a) provides for a right of appeal to either the detainer or any other organ provided. But I note that section 3 of the Deportation Ordinance forbids the right of appeal. The statute is for that reason unconstitutional. At least the said statute should provided a mechanism for review, more so that the deportation is for an indefinite period. At this juncture it is perhaps opportune to quote what the Judicial System Review Commission of Tanzania [Msekwa Report 1977] said in relation to rules of natural justice: The policy of Ujamaa and Self-Reliance centres on man. Man is the starting point and the terminus. Devised as it is, by man to enable him liberate and develop himself, its success or failure entirely depends on man. Under that system, natural justice, a concept so deeply rooted in our national jurisprudence, must continue to prevail and the principles thereof must be developed, respected and heeded by all persons in positions of power, influence and decisions. Therefore it is no accident that the principles of natural justice were incorporated in our Constitution under Article 13 (6) (a). I understand that it is a serious matter for the courts to declare that a President (agonizing) of a country has exceeded his powers. So serious that we think hard or twice before so holding. However, as Lord Denning, M.R. said in the English case of Laker Airways v Department of Trade [(1977) 2 All E.R. 182 and (1977) Q.B. 643] that: But there comes a point when it has to be done. These courts have the authority – and I would add, the duty – in a proper case, when called upon to inquire into the exercise of a discretionary power by a Minister or his department … They stand, as ever, between the Executive and the subject, alert as Lord Atkin said in a famous passage – alert to see that any coercive action is justified in law. This is one of those proper cases referred to by Lord Denning. For sure judicial review is a weapon which has to be used with great care and circumspection, such that the Judiciary has to be extremely careful to see that under the guise of redressing a citizen’s grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. Indeed that made the task of a judge in a modern society increasingly complex. In the words of Prof. Wolfgang Friedmann in his book Law in a Changing Society [Friedmann, Wolfgang, Law in a Changing Society, London: Stevens, 1964), at p. 65] that: In modern democratic society, the judge must steer his way between the Scylla of subservience to government and the Charybdis (between a rock and a hard place – each of which is very dangerous) of remoteness from constantly changing social pressure and economic needs. Thus hardly any major decision can be made without a careful evaluation of the conflicting values and interests. The lot of the judge is thus much heavier but nobler. A great judge is the one who is prepared to shoulder that burden and make his decisions as articulate as possible, being a reflection of the conflicts before him. It is tempting to seek escape from the burden of the decision, taking refuge in such expressions as “it is a political question” or that I have to decide “in public interest”, but those rationalizations can hardly take one far. Judges should not shamelessly exploit their personal prejudices instead of trying to base their decisions in accordance with their oath of office. But is the matter before me reserved to the Executive alone for decision? Or rather, is the matter of the legality of the detention of the citizen in this case a matter exclusively for the executive to decide for it being a political question? Or rather, is the matter of the legality of the detention of the citizen in this case a matter exclusively for the Executive to decide for it being a political question? There are two schools of thought as to whether there is a political question doctrine as such. The first school of thought, the “judicial abstainers” root the political question doctrine in what seems to be a rather vague concept of judicial “prudence” whereby the courts enter into a calculation concerning the political wisdom of intervention in a sensitive area. This school stands for a hand-off policy on matters which are political in character. They advise that the court should sedulously (diligently) avoid meeting contentious issues but should sit in resplendent dignity, aloof from the perpetual tussle between liberty and authority. For example Robert B. Martin says: Nothing is better guaranteed to undermine such independence (of the judiciary) than judges who cross the ephemeral boundary between “law” and “politics.” Only by recognizing the limits within which they are to exercise their function can judges ensure that they will remain free from political interference. (Martin, R.B., “In the Matter of An Application by Michael Matovu”, Vol. 1, No. 1, Eastern African Law Review, April 1968, p. 61 at 66) Then the learned author cites the examples of when the judges crossed the boundary at their own peril and for sure there was a backlash from the Executive. First he mentions the rejection by the United States Supreme Court of large parts of President Roosevelt’s (Franklin Delano) New Deal in 1935 and the court had to be “packed”; secondly in Canada during the depression of the 1930s when the Judicial Committee of the Privy Council struck down the bulk of Prime Minister Benett’s Recovery Programme, whereof the Privy Council was done away with as the final court of appeal for Canada. Other examples from the Commonwealth which come to my mind are: In Ghana in 1963 when the Chief Justice Sir Arku Korsah had to be sacked by the (The Osagyefo – redeemer in the Twi language, Ghana) President Kwame Nkrumah, as well as the dismissal of the other judges, for allegedly delivering subversive judgments. Again in June, 1977, Mr. Justice S. Azu Crabbe – then Chief Justice of Ghana was sacked for crossing the ephemeral boundary. In 1969 the Chief Justice of Zambia Mr. Justice Skinner resigned for crossing swords with the Executive. We are therefore reminded that we should put our hands off in cases which are political in character or else we are doomed. However on my part [amejitoa mhanga, like he is saying I am ready to die for my convictions] I subscribe to the other school of thought of “judicial activists” which holds that anyone whose life, liberty or property has been threatened or impaired by any branch of the government has a judiciable controversy and could properly repair to a judicial tribunal for vindication of his rights. Thus this school defines political questions principally in terms of the separation of powers as set out in the Constitution and turn to the Constitution itself for the answer to the question when the Courts should stay their hands – off. Thus in an American case of Baker and Others v Carr and Others (1962) 369 US I86 AT PP. 210-211) Mr. Justice Brennan of the U.S. Supreme Court said: The non-justiciability of a political question is primarily a function of the separation of powers … Deciding whether a matter has in any measure been committed by the Constitution to another branch of government or whether the action of that branch exceeds whatever authority has been committed, it is itself a delicate exercise in constitutional interpretation and it is a responsibility of this Court as ultimate interpreter of the Constitution. …It is my holding that the Deportation Ordinance which was enacted by the colonialists in 1921 is null and void and of no effect. This piece of legislation needs to be revamped in line with the basic human rights enacted in 1984. One wonders as to why this piece of legislation was not amended during the three years period of grace alongside the Preventive Detention Act, 1962 (Cap. 490 of the Revised Laws of Tanzania Mainland) which was amended by Preventive Detention (Amendment) Act, 1985 (Act No. 2 of l985) and among the major amendments introduced in there were… In conclusion I wish to say that the image of the judiciary in Tanzania since independence in the field of protection of the liberty of a citizen in the face of an administrative detention order has not been a good one. That led the Legal Aid Committee of the Faculty of Law of the University of Dar es Salam to complain in their book Essays on Law and Society (Kampala, Sapoba Bookshop Press Ltd., 1985, at p. 35) that these courts are more executive-minded than the Executive itself. While in the same vein a radical Tanzanian lawyer Harrison George Mwakyembe in his paper “The Bill of Rights in Tanzania – A General Overview” has attacked the attitude of our courts as “uninspiring” when moved by a citizen to challenge a detention order. That is not all. Prof. Issa G. Shivji in his biting criticism in the book he edited titled The State and the Working People in Tanzania [Shivji, I.G. (Ed.), The State and the Working People in TZ, p. 7) he says: And both as a matter of law and practice the powers of the Executive cannot be or are rarely challenged in courts or if challenged stand little chance of success. This is due to a combination of factors, such as the widely-worded law which leaves little room for judicial activism; timidity and mediocrity on the part of judges accompanied by loyalty born out of pressures and expectations of favour from the Executive. This is a serious charge against the judiciary and perhaps there is need for us to examine and search our conscience or else Prof. Shivji should be in the dock. The former Chief Justice of India Mr. Justice Bhagwati in an article on the role of the judiciary in the changing society in developing countries (The Commonwealth Lawyer, December, 1986, at p. 65) has urged that the judiciary has a duty to fight for a just, social and political order in society. He says that: This challenge is an important one, not only because judges are under a duty to create and mould a just society but also because the social and political legitimacy of a modern judiciary becomes questionable if it fails to make a substantial contribution to the issue of social justice. For sure if the judiciary cannot come to the aid of a poor citizen then oppressed, then its existence is questionable. We can do without it and perhaps create other institutions for that noble purpose. In the event the application is granted and the writ of habeas corpus to issue prayed. The Deportation Ordinance is unconstitutional, void and of no effect. The deportee who is the subject matter of this application should be immediately released. Order accordingly. ALLY LINUS AND ELEVEN OTHERS v TANZANIA HARBOURS AUTHORITY & THE LABOUR CONCILIATION BOARD OF TEMEKE DISTRICT (1998) TLR 5 – Nyalali, C.J., Mwakasendo and Kisanga, JJ.A. Admin. Law – Prerogative Remedies – certiorari – grounds for granting certiorari – Whether absence or lack of jurisdiction are the only grounds for granting certiorari. Admin. Law – Natural Justice – Duty to act judicially – Failure by the Labour Conciliation Board to allow party to proceedings to call material witnesses – A breach of natural justice Admin. Law - certiorari – Grounds for award of certiorari – Error of Law as a ground for awarding certiorari Admin. Law – Error of Law – Administrative Tribunal equating acceptance of terminal benefits with consent to the termination of employment- An error of law. High Court – Jurisdiction – Supervisory jurisdiction of the High Court – Whether granting certiorari on grounds of error of law amounts to hearing an appeal from an administrative tribunal – Appeal and judicial review distinguished. The appellants were aggrieved by the 1st Respondent’s decision to terminate their employment. They accepted payment of their terminal benefits but at the same time referred their grievances to the Labour Conciliation Board, the 2nd Respondent. The Board decided against them and they applied to the High Court for orders of certiorari and mandamus. The High Court dismissed their application on grounds, inter alia, that the High Court could not grant certiorari upon any grounds other than absence or excess of jurisdiction, and that granting certiorari in the matter would amount to hearing an appeal from the Labour Conciliation Board. On appeal to the Court of Appeal: Held: 1. Certiorari should have been granted by the High Court on the grounds of breach of natural justice by the Labour Conciliation Board; as a quasi-judicial body, the Board was duty bound to call those officials of the 1st Respondent whom the appellants wanted to give evidence before it.; 2. It is not a matter of courtesy but a matter of duty to act judicially that requires a judge not lightly to dissent from the considered opinions of his brethren; 3. Certiorari should have been granted also upon the finding that the Board had erred in law to equate payment of terminal benefits to the appellants with consent by them to the termination of their employment; 4. Granting an order of certiorari in this case would not amount to hearing an appeal from the Board; while an appeal requires the appellate court to re-hear the case decided by the Board either generally or on particular issues, in an application for certiorari the High Court merely exercises its supervisory function to ensure that the Board acts in accordance with the law. APPEAL ALLOWED. 5. Obiter dicta: Since the Labour Conciliation Board is an Organ of the Government, the proper procedure should have been for the court to notify the Attorney General to appear in the High Court on behalf of the Board as it was done in England in the case of R. v Northumberland Compensation Appeals Tribunal (1952) 1 All E.R. 122. SUITS AGAINST THE GOVERNMENT Arusha Municipal Council v Lyamuya Construction Company Ltd. [1998] TLR 13 Civil Practice and procedure – Jurisdiction of the Courts – Civil proceedings in respect of immovable property held under customary law – Whether High Court has jurisdiction – Section 2(1) of the Judicature and Application of Laws Act, Cap. and s. 63(1) of the Magistrates’ Courts Act, Cap. Courts – Jurisdiction of the High Court – Power of the High court to grant leave for proceedings to commence in a court other than the primary court – Whether High Court may order proceedings to commence in itself – Section 63 (1) of the Magistrates’ Courts Act, Cap. Civil Practice and Procedure – Local Government – Suits against local government authorities – Statutory requirement of one month’s notice before suing an urban authority – effect of non compliance – s.97(1) of the Local Government (Urban Authorities) Act, Cap 288 R.E. 2002. The respondent instituted, in the High Court, civil proceedings concerning immovable property not held under a granted right of occupancy or a Government lease. Section 63(1) of the Magistrates’ Courts Act, 1984 requires such a suit to be commenced in a primary court, but the High Court may grant leave for the suit to be commenced in some other court. The appellant (who was defendant in the High Court) was an urban local government authority but no written notice was served upon it, as provided for under s.97(1) of the Local Government (Urban Authorities) Act, l982, prior to the institution of the suit. The appellant raised preliminary objections against the suit but was overruled, and then appealed. Held: 1. Under s.63(1) of the Magistrates’ Courts Act 1984 there is no power to allow proceedings that have commenced in a wrong forum to continue therein; 2. The power of the High Court under s.63(1) of the Magistrates’ Courts Act 1984 to grant leave for proceedings to commence in some other court, other than the primary court, does not include power for the High Court to grant leave for such proceedings to commence in itself; 3. Non-compliance with s.97(1) of the Local Government (Urban Authorities) Act, 1982, which requires a one month’s written notice to an urban local authority before instituting a suit against it, renders a suit unmaintainable. AUTHORITY STEPPING THE LIMITS SHEIKH MOHAMMED NASSOR ABDULLAH v RPC & ORS. (1985) TLR 1 The Court declared that the Deportation Order null and void because the United Republic of Tanzania President had no power to deport any Tanzanian outside the Tanzania Mainland. Admin Law – Deportation – Whether the President has power to deport a person from Tanzania Mainland to Zanzibar. Statutory interpretation – territory – Power of the President to deport a person from any part of the Territory to any other part of the territory – Meaning of Territory, s. 3, Interpretation of Laws and General Clauses Act, 1972 (now the Interpretation of Laws Act) Held: 1. S. 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. 2. Under s.3 of the Interpretation of Laws and General Clauses Act, 1972 the word “territory” means TANGANYIKA. 3. 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. Peter Ng’omango v. Gershon M.K. Mwangwa and the Attorney General (1993) TLR 77 - Mwalusanya, J. Constitutional Law – Right of access to court to seek a remedy – Article 13 of the Constitution of the United Republic of Tanzania, 1977. Constitutional Law – Right of access to court and suits against the government – Requirement of ministerial consent to sue the government – Whether constitutional – Section 6 of the Government Proceedings Act 1967 and Article 13(3) and 13 (6)(a) of the Constitution of the United Republic of Tanzania, 1977. The Plaintiff sued the Principal of Mpwapwa Teacher’s College who, being a public servant, applied to have the government joined as a co-defendant but his application was rejected. Then the Attorney General applied to have the government joined as a co-defendant; this application was also rejected. But finally the government was, by third party notice, joined as second defendant. A preliminary objection was then raised on behalf of the government to the effect that the suit was incompetent for want of consent of the Minister to sue the government, a requirement of section 6 of the Government Proceedings Act 1967. The plaintiff countered that s.6 of the Act was unconstitutional for infringing the right of free access to court, and was therefore null and void. Held: (i) The right of an individual to have free access to the courts is well recognized by the Constitution; the requirement of consent of the Minister before one can sue the government as imposed by section 6 of the Government Proceedings Act 1967 infringes in a big way the constitutional right of free access to the courts for remedies; (ii) The consent powers of the Minister under s.6 of the Government Proceedings Act 1967 are so arbitrary and oppressive, and not subject to any restraint or control against abuse that they cannot be saved as lawful by Article 30 of the Constitution of the United Republic of Tanzania, 1977. (iii) The provision requiring the Minister’s consent to sue the government is so broadly drafted that it offends the doctrine of proportionality; it denies an effective and prompt remedy even to those with clear and genuine grievances against the government; (iv) The requirement of ministerial fiat to sue the government defeats the spirit of the Government Proceedings Act 1967 by bringing back outdated notions which held that rulers could do no wrong and could not be sued, and which have now been discarded by nearly all commonwealth countries; (v) Obiter: it is inappropriate for the law to give citizens of one part of the United Republic, Zanzibar, better access to court to complain against the government than the rest of the citizens; (vi) Obiter: the requirement of ministerial fiat to sue the government militates against the principles of accountability, openness and transparency of the government, all of which go well with the recently re-introduced multi-party democratic system. (vii) Section 6 of the Government Proceedings Act 1967 is unconstitutional and null and void. PRELIMINARY OBJECTION DISMISSED. Mwalusanya, J. The plaintiff Peter s/o Ng’omango is a tutor at Mpwapwa Teacher’s College. He filed a suit against the principal of Mpwapwa Teacher’s College one Mr. Gerson M. K. Mwangwa claiming Tshs.1,201,762/= as damages for malicious prosecution and defamation. The defendant applied to have the government joined as co-defendant simply because he is a public servant but I rejected the application. Then the State Attorney i/c of Dodoma Zone, Mr. Mwambe, duly instructed by the Attorney General applied to have the government joined as a co-defendant and again the application was rejected. I advised the defendant that the proper procedure was for him to apply for a third party notice so that the government is joined as co-defendant. The he did and the government was finally duly joined as the second defendant. As expected, the second defendant (the govt.) in its written statement of defence has raised a preliminary objection to the effect that the suit is incompetent, for want of consent of the Minister for Justice under the provisions of the Government Proceedings Act 16 of 1967. In his reply the plaintiff has raised a constitutional point to the effect that the Government Proceedings act 16 of 1967 as amended by Act 40 of 1974 is unconstitutional and so void. He said that it offends Arts. 13 (3), 13 (6) (a) and 30 (3) of our Constitution and so it should be declared void under s. 64 (5) of the Constitution as well as s. 5 (1) of Act 16 of l984. The Republic was represented by Mr. Ndunguru, State Attorney while the plaintiff argued the point in person. The State Attorney Mr. Ndunguru conceded that the constitutional point in question was duly served on him as required by s. 17A(2) of the Law Reform (Fatal Accidents Miscellaneous Provisions) Ordinance Cap 360 as amended by Act 27 of 1991. So he said that he was quite ready to argue the point. Ndunguru – 2 points: 1. S. 6 of the Government Proceedings Act, which requires written permission from the Minister of Justice in order to sue the government was a mere procedural matter which did not take away the right to sue the government. He said that the right to sue the government is left intact. Since it is only a procedural matter, it does not infringe the right of access to the courts. He said that it is just like a procedure which is provided in the Civil Procedure Code that one cannot sue any defendant until he has filed a proper plaint in court or until he has given a proper notice to sue the defendant. In fact he argued that the requirement of a fiat from the Minister for Justice is not inconsistent with the right to have a free access to the courts. 2. Even if the requirement of a ministerial fiat is taken to infringe the right of free access to the courts provided for in the Constitution, nevertheless he argued that Government proceedings Act is saved by the derogation clause in Article 30 (1) and (2) of the Constitution as it is in public interest. He said that it was in public interest for two reasons: (a) The restriction is necessary so as to avoid unnecessary harassment of the government so that it functions smoothly when serving the general public. He said that public policy requires that the government conduct its business smoothly without unnecessary harassments and impediments otherwise the general public will not be served well. (b) If the High Court will declare this statute to be unconstitutional, the courts will be inundated with numerous cases against the government and the courts will not be able to cope with the flood of those cases. So he said that the requirement of a ministerial fiat was in public interest under Article 30 (1) and (2) of our Constitution, so as to limit the number of cases going to court. And at the same time the government will be spared the embarrassment of being the defendant in frivolous and vexatious cases. He said that, that situation would no b e healthy if the requirement of a ministerial fiat is abolished. Plaintiff’s Reply: The requirement of a ministerial fiat was not a mere procedural matter but substantively restricts the right to have free access to the courts. He continued to submit that the Government Proceedings Act is not in public interest and so it is not saved by the derogation clause or claw-back clause. He said that since in every case where the government is the defendant, he said the government would be fully heard and defended by a competent State Attorney; he could not see any reason as to why the ministerial fiat should be imposed. He said that the government would not be prejudiced in any way if the ministerial fiat is taken away. He also argued that the requirement of a ministerial fiat is out of touch with the newly acquired multi-party democracy which stands for openness and transparency on the part of the government. Mwalusanya, J.: Whether the right of free access to the courts for a remedy is recognised by our Constitution? It is recognized by our Constitution. First we have Article 13(3) of our Constitution which provides: “The Civil Rights, obligations and interests of every person shall be protected and determined by competent courts of law.”; And Article 30 (3) of our Constitution provides that if one feels that his constitutional rights haven violated, he has the right to ‘institute proceedings for relief in the High Court.’ Not only that, we have Article 13 (1) of our Constitution which provides that all persons are entitled to the protection of the law which envisages that any person will have a free access to the courts for a remedy. And finally we have Article 13 (6) (a) of our Constitution which provides for a right of a fair hearing by the court of law, when one’s rights and obligations are being determined. The right to be heard includes the right to have free access to the courts to file a suit for a remedy. Our Constitution recognizes the right of an individual to have free access to the courts for a remedy. Mwalusanya, J. (2): Whether the right to have free access to the courts for a remedy is infringed by the mere fact that s. 6 of the Government Proceedings Act, 1967 requires a ministerial fiat before one files a suit in court? It is a general principle of law that the interplretation of our provisions in the Constitution have to be made in the light of jurisprudence which has developed on similar provisions in other international and regional statements of the law. That was the view taken by Nyalali, CJ in the case of AG v Lesinoi Ndeanai & Another [(1980) TLR 214] at p.222 where he said: “On a matter of this nature it is always very helpful to consider what solutions to the problems other courts in other countries have found, since basically human beings are the same though they may live under different conditions.” …. In the light of the reasons enumerated above, I am unable to agree with counsel for the Republic Mr. Ndunguru that the requirement of a ministerial fiat does not infringe the constitutional right of free access to the courts for a remedy. The right is infringed in a big way. Granted that the requirement of a ministerial fiat infringes the Constitution, it is saved by the derogation clause or claw-back clause in Article 30 (1) and (2) of our constitution for being in public interest. The Tanzania Court of Appeal in the case of DPP v Daudi Pete [(1993) TLR 22] held that a statute which infringes the basic human rights is not void if the Republic proves that it is in public interest. The Tanzanian Court of Appeal made two guidelines as to which law which infringes the basic human rights may be saved by the derogation clause. (i) The law in question should make adequate safeguards against arbitrary decisions. (ii) The said law should not offend the doctrine of proportionality or reasonableness – that is the law should be too broadly drafted as to net the innocent and the offenders. Mwalusanya, J.: Any law which does not have adequate safeguards and effective control against arbitrary interferences by public authorities with the rights safeguarded is not ‘law’. A lawful ‘law’ implies compatibility with the rule of law. Therefore it is not enough to have a ‘law’ which does not have safeguards, because it is not ‘law’ at all. Justice Francis Nyalali made a pertinent remark when addressing the legal community at the University of Dar es Salaam in 1985 on the topic “The Bill of Rights in Tanzania (1991) Vo. 8 DSM University Law Journal when he said at p.2: “This overriding of rights and duties of the individual y rights and duties of the community does not however entail arbitrary action on the part of the community or its institutions. As illustrated by the provisions of Article 30 (2) it has to be done according to law.” Now, a glance at the Government Proceedings Act, 1967 will reveal that it is not a lawful ‘law’ because it does not have any safeguards against arbitrary action by the Minister for Justice. The arbitrariness and oppressive nature of the Government Proceedings Act, 1967 has been amply documented – See the Report of the Nyalali Commission, Book Three at page 30 and the LLM Dissertation of 1985 by law Lecturer of the University of DSM Mr. Michael K.B. Wambali titled The Tort Liability of the Government in Tanzania (Mimeo). The impact of the Government Proceedings Act 1967 on the rights of individual claimants: First there is no appeal against the decision of the Minister for Justice contrary to Article 13 (6) (a) of our Constitution. Secondly, there is all likelihood that the ministerial power may be grossly abused as the Act does not provide for restrictions of any type on the Minister. Thirdly, there are no guidelines laid down for the Minister to follow the exercising this power. We are all at the mercy of his idiosyncrasies. Fourthly, there is no obligation imposed on the part of the Minister to answer the application and so Ministerial power may affect the period of limitation. Finally (5) the consent has an extremely great likelihood of not serving the ends of justice, for how come that the government is a judge in its own cause? (nemo judex in causa sua! – can’t be a judge in its own cause!) The decision will always be at the expense of the individual rights. The procedure patently offends the ends of justice. There can be no doubt that the Ministerial fiat requirement has been used by the government as a tool for oppression against the people it governs. That much has been documented by Mr. Wambali in his dissertation. He found that one could hardly make out tangible principles by which the Minister for Justice was guided in reaching the decision whether or not consent should be granted. He found that in each case any plausible justification was made for either a grant or a refusal. In short the decisions were found always to be palpably arbitrary. Examples are cited in the thesis wherein consent was refused simply because the Minister thought if the matter went to court a good quantum of damages would have been awarded by the courts to the claimant on merits. In other cases Mr. Wambali found that in many instances the Minister reached his manifestly adverse decision without referring to any supporting legal authorities or basing them on incorrect points of law. Another valid complaint he discovered was the length of time taken to deal with the applications. It usually takes an unnecessarily long time. He found that out of the 58 tort claims he studied; only 6 applications for consent were granted by the Minister. That is about 10 per cent; and it took the average of four (4) years to reach the decision either way. Certainly that is an inordinately very long time to reach a decision, taking into account the fact the period of limitation is three years for torts. Others to document the oppression rendered by the requirement of the ministerial fiat is Dr. Chris Maina Peter in his Article Five Years of the Bill of Rights in Tanzania: Drawing a Balance Sheet [African Journal of International and Comparative Law – 4 RADIC (1992) pp. 131 – 167 at 156-157 where he stated: “The most conspicuous and frustrating among the rights denied to the citizen is the right to sue the government. It seems as if the government has resolved to protect itself. This protectionist attitude of the government is codified through the Government Proceedings Act, 1967. This strategic legislation insulates the government from all claims in a feudalist manner. According to this law, anybody wanting to sue the government has first to seek permission from the same government through the Attorney General. To get such permission is a tussle which takes time. In some cases it has taken years to get the holy permit. This is not an accident, it has a meaning. The time factor is intended to wear out the claimant and force him to settle the matter out of court with the government. If he insists on proceeding with the case, then time will have taken its toll and it is likely that some of the key witnesses will have died, been transferred or simply forgotten what transpired in relation to the issue being litigated. The legislation is quite irrational. The cruelty of this sadism reaches the climax when the applicant himself dies while waiting for the Attorney General’s permission to enable him to pursue his rights through the courts of law. This happened in the case of Scarion Bruno.” As I said earlier there are no safeguards and effective control against any gross abuses that they may be committed by the Minister for Justice. The State Attorney Mr. Ndunguru must have been kidding when he submitted that the law in question is in public interest. To the contrary it is the public who are being oppressed. Mr. Ndunguru should respect the maxim, no research no right to speak (rebuke!). It is my finding that as the Government Proceedings act 1967 has no safeguards and effective control against gross abuses as amply documented above, it is not a lawful ‘law.’ It is void and unconstitutional. It is also my considered view that the Government Proceedings Act, 1967 offends the doctrine of proportionality. This principle of proportionality requires that the means employed by the government to implement matters in public interest should no more than is reasonably necessary to achieve the legitimate aims. In other words, the government must that the restriction imposed on a basic human right is required by a compelling social need and that is so framed as not to limit the right in question more than is necessary or proportionate to achieve a legitimate objective… The doctrine was expounded by the Court of Appeal of Tanzania in the DPP v Daudi Pete (supra) where it is stated that the law being defended for being in public interest should not be too broadly drafted such that its provisions are capable of depriving personal liberty not only to persons who are considered to be dangerous, but even to persons who cannot be considered to be dangerous. They said the law should not be a rat-trap which catches both rats and humans without distinction. The Government Proceedings Act, 1967 offends the doctrine of proportionality because it is so broad such that it denies an effective and prompt remedy to all and sundry without distinction – even to those who have a clear and genuine grievance against the government. I see no compelling social need to have restriction to sue the government, whereby the rights of citizens are marginalized and emasculated... In Zanzibar, that entire one has to do before suing the government is to give a month’s notice to the government. That is a sufficient and reasonable restriction against suing the government. The legislation in Zanzibar is in line with the doctrine of proportionality as it does not limit the right of access to the courts more than is necessary or proportionate to achieve a legitimate objective. The law in Tanzania mainland is based on the unjustifiable protectionist attitude or fear that the government may be involved in uncontrolled litigation, thus ending in serious losses of revenue. But that argument cannot hold water when one considers the high capability of the government to distribute the losses suffered through some fiscal measures, such as taxation… Ultimately it is for the Court to assess whether the reasons given to justify an interference with the basic human rights are relevant and sufficient. In the case in hand the government has failed to establish on a balance of probabilities that the requirement of a ministerial fiat is for a given pressing social need and that the restriction is framed such that as not to limit the right protected more than is necessary. In short the government has failed to prove that the restriction on the right to have free access to the courts is proportionate and closely tailored to the aim sought to be achieved… The requirement of a ministerial fiat militates against the principle of accountability and the often quoted principle of openness and transparency of the government. In Tanzania under one party democracy, the spurious justification for having a requirement of the ministerial fiat, was espoused by some party fundamentalists (Wakereketwa) who nursed the idea that the government under the leadership of the CCM party which had a ‘clear and correct ideology’ had a greater public interest to preserve and a monopoly of what is good for the country and therefore cannot be left to be scandalized in courts by individuals with impunity. However, that view cannot prevail now with the advent of multi-party democracy which was ushered in, in July 1992. In a bid to expand democracy the people in a multi-party democracy will continue bit by bit to wrench away the mask of invincibility and unimpenetrability that the government sought to wear for many years under one party rule. Thus the vulnerability of the government to give way for more democratic institutions and norms has now been exposed. In the final analysis, I find that s.6 of the Government Proceedings Acgt 1967 as amended by Act 40 of 1974 is unconstitutional and so void. I so declare under s.5 (1) of Act 16 of 1984 as well as Article 64 (5) of the Constitution. For sure by this step, the CCM government will rejoice because in the 1990 Election Manifesto, the said CCM government pledged to get rid of all the problems that plague the people (kuwaondolea wananchi mambo yanayowakera). The requirement of a ministerial fiat to sue the government was one of those matters that have been plaguing the people. Now this tool of oppression which the TANU government in 1967 said it was undemocratic and outdated is gone forever, and it now part of the legal folklore destined for the dustbin. The Judiciary as an organ of the government has played its noble part to get rid of a matter that has been plaguing the people for far too long. It is pertinent to remark here that the government in the past and in this case had insisted to be joined as a co-defendant not as a philanthropist wishing to bail out their distressed civil servant but for their own ulterior motives. They have been using the requirement of a ministerial fiat not as a shield to protect their own legitimate interest but as a sword to frustrate genuine claims. In this case I told the State Attorney that the government’s interests will be properly safeguard if they merely provided legal representation to the defendant but they refused, and insisted to be joined as co-defendants. In the case of Rev. Christopher Mtikila v The Editor, Business Times and Mr. Augustine Lyatonga Mrema [(1993) TLR 60] the government tried to use that play of using the law as sword to frustrate the plaintiff’s claims, but it was nipped in the bud by Samatta, JK who held that the government need not be joined as a co-defendant. In this respect, Peter’s article (supra) graphically illustrates the point raised at p. 157 thus: Practice indicates that even where a person in an attempt to avoid this requirement of getting government approval, decides to sue the government officer alone without joining the government, the government insists on being joined as a respondent. Worse still, once the government is joined, then it invokes the requirements of the Government Proceedings Act 1974. Permission must be sought although the government has joined the proceedings at its own request. This is exactly what happened in the case of Patrick Maziku v G.A. Sebabili and Eight Ors, [HCT Tabora, Civil Case No. 3 of 1982 (Unreported)]….” However, in this case the play has boomeranged. The government has been hoisted by its own petard. Be that as it may, in the event the preliminary objection raised by the Republic is dismissed. The suit will proceed to trial as scheduled. Costs in the cause. Order accordingly. Note: The law has since been amended to allow for a 90-day Notice to sue the government. Scarion Bruno, UDSM FOL Legal Aid Committee, Legal Aid Brief No. 5F/LAB/84/3 Scarion Bruno died while he was awaiting the Attorney General’s permission to enable him to sue the government in a court of law. He filed the plaint in December, 1984 but had to await the A.G. consent before the case could proceed. By September, 1987 (3yrs) when he died, the consent had not been granted. Patrick Maziku v G.A. Sebabili & 8 Ors., HCT Tabora, Civil Case No. 3 of 1982 (Unreported) The plantiff was suing the Regional Commissioner in person for nationalizing his milling machines. CHIPETA, J. allowed the government to be joined and then ordered the plaintiff to comply with the statutory provisions relating to suits against the government. This is what the government was looking for, i.e. to stall the proceedings. This was a wrong decision because the court cannot choose parties in civil proceedings. Justice delayed is justice denied. The Government Proceedings Act is totally repugnant to the rule of natural justice of nemo judex in causa sua. I.G. Lazaro v Josephine Mgomera, C.A.T. DSM, Civil Appeal No. 2 of 1986 (Unreported) The Assistant Commissioner of Police slandered a Police Woman Constable by calling her a Prostitute (Malaya). The CAT held, inter alia, that slandering people was not part of police duties. He did that in his own personal capacity and thus the government could not be held vicariously liable. The police officer could not therefore hide behind the protection of the Government Proceedings Act. The Court needs to examine the issue being litigated on, and not dump every civil servant’s case in the ambit of the offending Government Proceedings Act. Julius Ishengoma Nydnabo v Attorney General, Application No. 64 of 2001 (CAT 2003) The CAT declared a provision of the Elections Act, 1985, unconstitutional. The said provision required an election petitioner to deposit Tshs.5,000,000/= as security of costs before the case could be heard. The Court ruled that such a provision was contrary to the right of accessibility to courts. (Art. 13). The Basic Rights and Duties Enforcement Act, No. 33 of 1994 The government has retained its insulative strategy through the back door on maters of enforcement of the Basic Human Rights through the enactment of the Basic Rights and Duties Enforcement Act, No. 33 of 1994. This is an Act which introduces very cumbersome procedures in Human Rights enforcement in Tanzania. Originally, litigators were using Art. 30 (3) of CURT, 1977 for locus standi. Although this Act purported to provide the basic procedure to be complied with in the enforcement of Basic Rights and duties as required by Art. 30(4) of the Constitution of the United Republic of Tanzania, 1977 it goes further to restrict access to the courts by the individual whose rights have been infringed. 1. It extends to the whole United Republic, s. 1(2) 2. Covers all suits and courses of action which concern provisions of Articles 12 – 29 of CURT, 1977 for the purposes of enforcing the basic rights and duties, s. 3 3. Original jurisdiction is the High Court of Tanzania, s. 8 Any individual whose fundamental rights or freedoms have been violated can have recourse to the courts of law, under Art. 30 (3). The procedure for obtaining redress is to file a suit in the High Court which is the court of first instance in matters pertaining to the Bill of Rights. It is an open secret that all the governments all over the world are the no. 1 violators of all the human rights. Enforcement Procedure under the Act No. 33 of 1994 The enforcement procedure under the Basic Rights & Duties Enforcement Act No. 33 of 1994 is a complex, cumbersome, and expensive procedure for litigating human rights. [Peter, C.M. “This is bad law which should be repealed before the ink has dried on its assent.” The problem lies with regard to the mode of instituting the action, the requirement of extreme particularity of the Claim, service of the process to the other side and the long time involved. 4. Determination according to the majority of the judges hearing the petition – s. 10 (2). 5. Requirement of 3 judges to hear the substantive issues – s. 10 Courts may raise, suo moto, the constitutionality of the matter being litigated, as per A.G. v Marwa Magori, CAT, DSM, Civil Appeal No. 95 of 1988 (Unreported); where the CAT held that all courts of law are duty bound to take judicial notice of all constitutional and legal matters. It held that courts in this country are courts of law not courts of parties, they have inherent jurisdiction to raise and to consider matters which are necessary for a fair and just decision of a case. In this case the CAT provided guidance in such cases that when it raises such constitutional matters, it must afford the parties reasonable opportunity to respond. Act No. 33 of 1994 has put a stop to this process; as the moment a court raises a constitutional issue out of any matter brought before it, then it cannot proceed until it is referred to a panel of 3 judges; to hear and determine it. (i) Time wastage on litigants and courts. (ii) Prolong the suffering of the victim (iii) Give the state an opportunity to continue playing around with the technicalities of the law. (iv) The state no longer believes that a High Court Judge on their own is capable of hearing and determining an issue relating to fundamental rights and duties fairly. This indirect way of indicating displeasure to the judiciary goes beyond the targeted institution. • It erodes the very basis of the Rule of Law • Main victim is the individual whose case has to go through two phases before it gets eventually determined. • Stage One: sifting by a single judge to determine whether it is frivolous or vexatious • Stage Two: substantive issue heard by the PANEL of 3 judges. • Further delays may be caused by the failure of the PANEL to be fully constituted always and in good time. s. 13 (2) (a) Where HCT is satisfied with unconstitutionality of a law or action complained of, it shall have power to allow Parliament or other legislative authority or the government or other authority concerned to correct any defect in that law or action within a specified period. CURT (Art. 30 (5) • Between the time when the court declares its findings and the institution instructed to react reacts, the offending law shall be deemed as to be valid. • This form of action is recommended as one way of the court exercising its jurisdiction? Problem: It directly interferes with the principle of Separation of Powers. This Principle does not envisage one ordering the other. An Absurdity. This law does not assist in the operationalisation of the constitutional guarantees to fundamental rights and freedoms. It complicates the situation, which had already been cleared by the Judiciary. It is making it difficult for the common man and woman who is a victim of HR violations to get quick and proper redress from our courts. The 3-Judge Bench of the HCT in N.I.N Munuo Ng’uni [(1998) TLR 464] – Mapigano, Mchome and Rutakangwa, JJ – found that Art. 30 (5) of CURT, 1977 is an extremely strange, absurd, and curious provision. It is impossible for the court to apply it with any sense of judicial candour. AG’s 90 days Notice to sue the Government (a) The AG never acknowledges receipt of a Notice of Intention to Sue. (b) If a Petition or suit is filed in court, AG raises all kinds of Preliminary Objections or other legal/administrative obstacles on the way (c) Ask for Adjournments (d) Dig In and wear down the “enemy” to buy time. (e) If the court makes adverse orders, AG appeals against and then sits tight. 11th Constitutional Amendment, 1994 This Constitutional Amendment which barred independent Candidates is a retrogressive giant leap backwards even by the standards of 1962 Republic Constitution which allowed for independent candidates to vie for political public offices. A.G. v W.K. Butambala, CAT, MZA, Criminal Appeal No. 37 of 1991 (Unreported) the CAT said the following: “We need hardly say that our Constitution is a serious and solemn document. We think that invoking it and knocking down laws or portions of them should be reserved for appropriate and really momentous occasions… It is not desirable to reach a situation where we have ‘ambulance courts’ which go around looking for situations where we can invalidate statutes … we are not Knight Errants.” According to a mini research done by Learned Brother Mughwai, Alute in 6 years’ time, i.e. 1988 to January, 1995, not less than 20 HR cases were decided in HCT, 12 in the CAT. 1994 – 2001 - 30 Cases in Arusha alone 1994 – 2001 - No case decided under Act no. 33 of 1994. Constitutional Amendment Bill, 2000 - Had a new Article 107A (2) (e) “In adjudicating cases of both a civil and criminal nature, the courts shall, subject to the law, apply the following principle:- ‘Substantive justice shall be determined without undue regard to technicalities.’ - Bill Supplement No. 16 to the Gazette of the URT No. 53 Vol. 80 Dated 31/12/1999 (translation of the Swahili version) this particular provision was removed in the final amendment. [anakomolewa mwananchi mwenye nchi] Sources: Shivji, I.G., Majamba, H.I., Makaramba, R.V., Peter, C.M. (2004); Constitutional and Legal System of Tanzania: A Sourcebook, Mkuki na Nyota Publishers, Dar es Salaam, Tanzania. Peter, C.M. (1997); Human Rights in Tanzania: Selected Cases & Materials, Rudiger Koppe Verlag, Koln, Germany. Peter, C.M., Juma, I.H. (Eds.) (1998); Fundamental Rights & Freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es Salaam, Tanzania. [Peter, C.M. (1998) “Enforcement of Fundamental Rights and Freedoms in Tanzania: Matching Theory and Practice” in Peter, C.M., Juma, I.H. (Eds.) (1998); Fundamental Rights & Freedoms in Tanzania, Mkuki na Nyota Publishers, Dar es Salaam, Tanzania, p.________ Mchome, S.E. (Ed.)(2002); Taking Stock of Human Rights Situation in Africa, Faculty of Law, University of Dar es Salaam, Tanzania. Mungwai, Alute (2000) “Forty Years of Struggles for Human Rights in Tanzania; How Far Have we Travelled?” in Mchome, S.E. (Ed.)(2002); Taking Stock of Human Rights Situation in Africa, Faculty of Law, University of Dar es Salaam, Tanzania, p.________ KIjo-Bisimba, Helen & Peter, Chris Maina (2005); Justice and Rule of Law in Tanzania: Selected Judgements and Writings of Justice James L. Mwalusanya and Commentaries, Legal and Human Rights Centre, Dar es Salaam, Tanzania

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