Judicial review.

Although lawyer often speak as if judicial review itself a remedy, it must be noted that it is merely a procedure for obtaining the prerogative remedies. Prerogative remedies or orders are a family name for remedies or order of certiorari, mandamus, prohibition and habeas corpus. Thus properly defined: Judicial review refers to the procedure where by the court investigate the legality of an action or decision of an inferior tribunal or authority and consequently in a proper case issue one or more of the requested or petitioned prerogative remedies or orders, and the source of judicial review  is common law. A distinction has to be made between a judicial review and an appeal 

i. The right to appeal is always conferred by statute but that of Judicial Review is conferred by the inherent supervisory powers by the High Court.

ii. When hearing an appeal the court is concerned with the merits of the decision under appeal. However when subjecting some administrative act or order to Judicial review, the court is concerned with its legality.

iii. On appeal the court will often direct itself to the question as to whether the decision appealed against was decided based on the right or wrong question of the law or fact. On judicial review the question to be asked by the court is the lawfulness or unlawfulness of the decision or act complained of.

From this distinction it follows that, some of the remedies which can be obtained from the High Court in its appellate jurisdiction are not available by way of judicial review.

SOURCE OF THE REMEDY OF JUDICIAL REVIEW:

The power of judicial review is not derived from statutes; it is inherent in the English courts of QB and KB, depending on who is at the throne for the time being. The extension of this power to this power to the High Court of Tanzania has been effected through S.2(2) of the JALA, commonly known as the reception clause.

PRIVATE AND PUBLIC LAW REMEDIES:-

When public and private authorities commit breaches or otherwise act contrary to the law, the affected persons may sue them to the court where they may be held liable, where just like any other person may be sued in court. In the case of Municipal of Mombasa vs. Kala [1955] 22 ACER 390.the board was successful sued for trespass when it demolished the respondent’s house, after service on him of a ultra vires demolition order. Here the respondent used private law to enforce his rights against a public authority. An order for the award for damages is a typical private law remedy. However there are many instances in which private law remedy cannot be available to a wrong committed by public authority for instance, were an application for license is wrongly refused. In such case, the affected person has to look for other remedies which will be effective. These are usually public law remedies which have been developed by court in England over centuries. The remedies are; certiorari, prohibition, mandamus and habeas corpus which are known as prerogative remedies.  They are known so because, originally they were used by the crownat his/her discretion for the purposes of controlling the conduct of inferior tribunals or bodies to ensure that, their action are within their jurisdictional limits or are not otherwise contrary to law. However for the crown of the Royal Court to uphold, legality, it was necessary for it to be moved by an individual (not suo motto) affected by the illegality. 

PROCEDURE FOR PREROGATIVE REMEDIES:-

As they are typical public law remedies, prerogative remedies cannot be issued against a private individual unless the individual   is vested with some administrative power or other powers of a public nature. These are remedies available for the public authorities or administrative bodies. Formerly prerogative orders/remedies were a royal monopoly and hence they had to be brought in the name of the crown at the instance of the person who complained the injustice done to him that is R vs. The Administrative Board Tribunal.

The foregoing citation is no longer applicable in Tanzania but  rather the citation format in constant use in Tanzania is; the complainant who institute the proceedings is cited as the applicant; the body/ authority complained against is the respondent together with the Attorney General (current citation). 

The procedure for prerogative orders is not provided in details in any local statute rather the procedure used is that as was obtained in England on the 22nd  July 1920, commonly known as the reception date as stated in the reception clause.

The law reform( Fatal Accident and Miscellaneous Provisions) Act Cap 310 0f 1968, empowers the chief justice to make rules of the court to govern the procedure for prerogative orders but to date no such rules have been enacted by the Chief Justice and hence continued resort to the rules of practice obtained in England in 1920.

WHAT ARE THE RULES OBTAINED IN ENGLAND?

Crown Office Rule of 1906.

The answer to the question as to what rules governed the practice of the court in England in 1920 July, was given by the court of appeal for Eastern Africa in the case of Dar es salaam Motor Transport Co Ltd vs. Transport Licensing Authority of Tanganyika and another (1959) ECA 403. In which it was stated that, the practice and procedure obtained in England on 22nd July 1920 was that contained in the crown office rules of 1906.

According to crown office rules of 1906, Applicants for prerogative orders are always made in a two stage process. Firstly the applicant must first apply for leave to apply for the substantive order s/he wishes to get. The application for leave is made ex parte to the judge in chambers.

After hearing the ex parte application the court; then decides whether to grant to the applicant have to file substantive application or not.

The purpose of the application for leave is to weed out applications which are frivolous and leave only those which the applicant has the genuine cause for complaint. At this stage the applicant must establish a prima facie case. Upon satisfying the court that there is a case, the applicant is then granted leaves and direction to serve summonsed upon the respondent authorities calling it to show cause as to why the remedy sought should not be issued.

Second stage; the application sought if made by way of chamber application or motion supported by an affidavit and the respondent may object by filing a counter affidavit in advance of the date of submitting argument in support of their respective positions.

The Law Reform Act (fatal) Cap 310 as amended by act no 5 of 1968 and Act no 27 of 1991 and the JALA are the laws originally cited in applications for judicial reviews.Article 13(6) of the CURT 1977.

The amended affected by act no 27 of 1991, made it mandatory to serve the attorney general with a copy of every application for leave even if the remedy sought is not sought against the Attorney General or ant department of the central government.

The regard to the prerogative remedy of habeas corpus, there is a procedure under the habeas corpus rules, the rules which were enacted by the criminal procedure code Cap 20, which has since been repealed, but the rules are saved by the new law i.e. CPA.

*application for leave

* Application for substantive orders.

CERTIORARI:-May be defined as an order of the High Court in the exercise of its inherent power to quash the decision order, or other similar act of an inferior tribunal or administrative body or authority. S.2 of  JALA read together with Art 108 of the CURT of 1977 effectively save that inherent jurisdiction of the High Court.( where there is Lacuna and it is not of an appellate nature.

CPC Inherent power of the High Court.

Suo motto- on its own motion.

The order for certiorari only quashes a decision or order the court does not substitute its own decision for the one quash. Hence, an order for certiorari does not bar the relevant body or authority from reconsidering the matter and coming to a new decision in place of the one quashed

When quashing the decision or order by certiorari it is not for the High Court to direct the administrative body whose decision is quashed on how to decide when it seat to reconsider the matter, but naturally when reconsidering the matter, the relevant body or authority is expected to avoid the irregularities or other deficiencies upon which its earlier decision is quashed by certiorari.

GROUNDS FOR CERTIORARI:-

To obtain an order for certiorari, the applicant must show to the court one or more of the ground for certiorari which are:

Either that; the order of the acts sought to be quashed is ultra vires or is made in error of law apparent on the face of record or in break of the principles of natural justice. It follows that, all cases relevant to judicial review of an administrative action are generally relevant to certiorari. Because certiorari will quash the decision, mandamus which compel the administrative body to make decision, prohibition will prohibit an act in continuance to stop).

Depending on the circumstances of each case, an order for certiorari may be sought and granted along the one or both of the other prerogative orders of mandamus and prohibition.

One case in which all the three orders were sought and granted is the case of:

FestoBalegele and others vs. Dar es Salaam City Council, HC Dar es salaam, and miscellaneous Civil case no 90/1991. This case concerned the refused dump. The complainant led others against the Council in Kunduchi for the turning to a dumping area their plot which caused nuisance. they applied for certiorari for what the council was doing, prohibition of dumping refuse and mandamus to search for another area. All these were granted by the High Court.

THE ATKIN DICTUM

At one time the view was held that, the principles of Natural Justice are applicable in acts and decisions whose maker was the/a body not acting judiciary or in a judicial capacity. The origin of this limitation of the application of natural justice was in the case of R vs. Electric Commissioner Ex parte London  Electricity, Joint Committee Co (1920) Ltd. [1924] 1 kb 171. The commissioner has statutory powers for making scheme for joined electricity authorities and the applicant Co sought certiorari to quash the scheme and prohibition to stop from being carried out. The HC held that; it was not enough simply to show that the scheme was ultra vires in addition to that the applicant had also to show that, the commissioners had a duty to act judiciously. 

Lord Atkin said; “ for the writ to go, two requirements must be mate; the body must have legal authority to determine the questions affecting rights of subject and as an additional requirement, must have the duty to act judiciary”

Now the last phrase of the above quotation, containing the words the duty to act judiciary is what has since come to be known as Atkin dictum. However the descent burial was given in the case of  Ridge vs. Baldwin: thus in  R vs. Paddington Valuation Officer ex parte  Peachey  Property  Corporation {[1966] 1 QB 308. Lord Denning referring to the Atkin Dictum held that ; the valuation officer was subject to control by prerogative order because, “ the valuation officer is a public officer and trusted with a public duty. He has legal authority or power to determine questions affecting the rights of subjects. This power carried with it the duty to act judiciary, which means, that fairly and justly is in accordance with statutes”.

The straightforward meaning of Lord Denning’s dictum is that, a duty not to act judiciary is implied in every power or legal authority when determining questions affecting the rights of subjects.

CIRCUMSTANCES UNDER WHICH CERTIORARI WILL NOT ISSUE:

Certiorari being a prerogative remedy is a discretionary remedy and hence it is not granted as a matter of right or matter of cause rather its grant is in the discretion of the court. This means that, after the grounds for the award of certiorari are established, the court can still refuse to grant the order of certiorari. In practice though when the court refuses certiorari after the ground for its award have been established, it will give reason for the refusal, hence from the practice, it is possible to discern certain circumstances in which certiorari is likely to be refused and the first circumstance questions; availability of an alternative remedy ordinarily, certiorari will be refused if the alternative remedy available to the applicant have not been pursued to extortion or at all by the applicant. Thus application for certiorari is likely to be refused where there is right of appeal against the act sought to be quashed by certiorari.

MORRIS ONYANGO vs. SENIOR INVESTIGATION OFFICER CUSTOM DEPARTMENT [1980] TLR 150.

AmriJuma and 15 others vs. Tanzania Harbors authorities, HC DSM, miscellaneous civil cause no 37 1980, in which the applicants had not exhausted their statutory right of further reference to the minister but the court issued to them the writ of certiorari on the basis that, the decision of the respondent was a nullity and void at law and thus there was no the decision at all to take minister.

The second incident is where the applicant is somehow to blame, an application for certiorari may be refused even if there is no alternative remedy and grounds for its award has been sufficiently established where somehow the applicant is him/herself to blame for the predicament his/her application. The most common blame common blame against the applicant is delayed in making the application 

According to Crown Office Rules of 1906, an application for certiorari will not be entertained by the court if it is brought after a period of 6 months following the act complained of.Similarlywas the applicant delays until s/he becomes time barred under the proceeding for the alternative remedy and s/he come for certiorari. Certiorari will not be issued since they are not a matter of choice if the time lapses it is over.

Another instance where the conduct of the applicant is unreasonable a part from delay, certiorari can be refused. In the case of, Re Exparte Fry (1954) 1 WLR 730. A fireman refuse to clean his superior’s uniform as ordered, claiming that the order was unlawful. He was punished by caution and sought certiorari to quash decision to caution him. Certiorari refused: the court observed that , the applicant’s disobedience was un extraordinary foolish conduct as he could have simply obey it and then complain through the existing laid down procedures.

Certiorari will not be issued were the practical effect of the order is undesirable or otherwise disastrous. In the case of Conrad Berege vs. Registrar of Cooperatives and AG, HC, DSM, Miscellaneous civil case no 35 of 1990- unreported. The applicant in this case established that,the  removal of the managing committee of morogoro region cooperative union (1984) Ltd of which he was a chairman and its replacement by a care taker committee was done ultra vires in breach of the principles of natural justice. The court refused to grant certiorari. As it grant would have the effect of reinstating the applicant in office but already while the case was pending. He had lost the necessary qualifications for holding that the office and considerable hostility was persisting against him and his committee 

Certiorari will not be issued were the effect will be to protect a privilege and not a right. Certiorari is normally issued to protect a right and not a privilege. In the case of R vs. Gaming Board For Great Britain ExparteBenaim and Khaida 1970 2 All ER 588. The applicant sought a gaming license in respect of Crockfords along time established gaming club. The Gaming Board decided not to give them the license and they sought certiorari to quash the decision of the court. Lord Denning held that; as gaming was a privilege and not a right, certiorari will not be issued. 

Lastly is where the applicant has no the locus standi, the applicant has to establish the locus standi i.e. that s/he has sufficient interest in the matter complained of.

LujunaShubiBalonzi vs. CCM case.

PROHIBITION:

While the effect of certiorari is to quash the decision or order which is made without jurisdiction or contrary to law, prohibition operates as a stop order. It restrains/ prevent a public body or administrative body from continuing to act without jurisdiction. Prohibition therefore is an order sought and granted in order to prevent a public body or authority from carrying out a decision or order which is ultra vires or otherwise contrary to law. Grounds for the award of prohibition are the same as those of certiorari.

Prohibition may issue against an act or order which is ultra vires, Erroneous in law or which is in breach of the principles of Natural Justice. In the case of R vs. Kent Police Authority Exparte Godden (1971) 2 QB 662. The applicant Mr Godden was certified to be suffering from mental disorder by the Chief medical officer. For that reason, the respondent authority wanted to restore him compulsorily; the law required them to refer Godden’s condition to a doctor before retiring him as they wanted. The doctor they refer Godden was the same chief medical officer who had earlier certified that Godden was suffering from mental disorder. Thus would have been to the principles of natural justice against bias, because the doctor has already formed his view of Godden’s condition. Prohibition was issued for preventing the doctor from acting on the reference.

Like certiorari prohibition is discretionary and will not issue where there is an alternative remedy which is convenient, beneficial and effectual.

Nota Bene: prohibition will not be issued by the court where it is sought after the act complained of has already been carried out, because it is meaningless to prohibit the doing of an act which has already been done. However prohibition may be issued to stop an act which has been stated and is continuing. There is no law stipulating for limitation period for applying for prohibition. The logic for this is that prohibition can be sought and granted before and not after the act complained of is executed.

Prohibition is also available to protect a right and not a privilege. The question of locus standi is as important in an application for prohibition as it is important for an order of certiorari.

MANDAMUS:

Is a public law remedy issued as a command requiring the performance of a public duty. A duty which the person or body is so commanded is under a legal duty or obligation to perform. The duty in question must be a public one. Mandamus will never issue to compel the performance of a private duty for instance a duty arising out of a contract.

1. LEGAL DUTY OR OBLIGATION:

A duty enforceable by mandamus is one which may have been imposed by statute or under common law. In FestoBalegele’s case, after prohibiting the respondent council from continuing to dump refuse at KunduchiMtongani because it was undesirable for that purpose, the court issued an order of mandamus to command the council to collect and establish a suitable site for solid waste disposal.

The issuance of the order of mandamus was possible because under the Local Government (Urban Authority) Act no 8, of 1982, the council is under an obligation to provide for collection and disposal of the refuse granted in the city, the obligation includes the duty to establish and maintain appropriate location for refuse disposal.

John MwombekiByomalirwa vs. Regional Commissioner and another [1986] TLR 73.

2. THE DUTY MUST BE IMPERATIVE:

Mandamus is available to compel the performance of the duty. It is not available to compel the exercise of a discretionary power. If its within the power of a body to perform a certain function but there is no imperative obligation to perform it mandamus will not issue 

If the law says, “the city council shall establish and maintain facilities for refuse disposal”, then the city council may be compelled by mandamus to establish and maintain them. But mandamus shall not issue if the law merely says that, “the city council may establish those facilities”.

In the case of Re Fletcher’s Application (1970) 2 All ER, 527: the applicant was refused leave to apply for mandamus to compel the parliamentary commissioner to investigate his complaints. The refusal was on the ground that, the law provided that; “the commissioner may investigate that complaint”, as such law merely gave the discretion to investigate the complaint. It didn’t impose an imperative duty or obligation to investigate.

NB: in some cases the law may be couched in a permissive terms i.e. with the use of  the word may but still mandamus will issue particularly is cases regarding granting of licenses, as it is said that the intention is not to give absolute discretion on public authority. While a mandamus cannot be issued to enforce a contractual duty generally, sometimes it can be available to enforce a contact which is meant specifically for the purpose of carrying out a public duty for e.g.firefighting sewage waste& disposal.

EXERCISE OF DISCRETION MUST BE LAWFUL:

Although mandamus will not issue to compel a exercise of a discretion, once the body vested with discretion set out to exercise that discretion, it must exercise it in accordance with correct legal principles. Hence, every discretionary power carries with it a duty. An imperative duty to exercise that power lawfully and it is this duty which can be compelled by mandamus goes together i.e. certiorari to quash the decision complained of and mandamus to compel those bodies to reconsider the questions and make fresh decisions replacing the quashed.

INJUCTIONAND DECLARATION:

There are private law remedies which are also relevant to public law. An injunction is an order of the court by which a person against whom it is made is required to refrain from doing an act/stop order. By contrast the prohibition, injunction orders seek to restrain wrongful acts which are purely private and not public in nature. A declaration on the other hand is an order of the court which merely declares what the rights of the contesting parties are. It merely declaresdeclares what the rights and stop there. It does not empower or require any one to do anything; if the applicant is successful they lead to what are commonly referred to as declaratory orders or judgment. The relevancy and importance of these remedies to private law is that, they can be invariably used against public authorities in match the same way as against private individual (declaratory judgment /orders).

EXCLUSIONARY CLAUSES:

Sometimes referred to as ouster clauses or finality clauses are statutory provisions excluding application for judicial review in courts of law. Acts of parliament frequently contains provisions aimed at restricting and sometime eliminating judicial review. The common phrases are inserted in such statutes are such words as; “final and conclusive or shall not be questioned in ant court of law or where the minister is satisfied…” and such similar words. The normal effect of such clauses is to prevent an appeal as there can be no appeal unless it is given by the statute, the effect of exclusionary clauses if uncontrollable powers to administrative authorities and tribunals. They are an indication of distrust of the judiciary by the executives.

ATTITUDE OF THE COURT ON EXCLUSIONARY CLAUSE:

There is a firm/ strong judicial policy against allowing the rule of law to be undermined by weakening powers of the court. Statutory restrictions on judicial remedies are given the narrowest possible construction sometime even against the plain meaning of the word. If a statute says that some decision or  order shall be final and conclusive, this is held to mean that  there is no appeal but judicial control of illegality/illegality is unimpaired.  In the case of R vs. Medical Appeal Tribunal  Exparte Gilmore [1957] 1 QB 574/ 583. Lord Denning observed ; “ I find it well settled, the remedy of certiorari is never to be taken away by any statute except by the most clear and explicit word”. 

Anisnminic case- must read.

In the case of Council of Civil Service Unions and others vs. Minister for Civil Service [1984] 2 All ER 935. Lord Diplock classified three grounds upon which administrative action is subject to control by judicial review, ouster clauses or no ouster clauses: the grounds are as follows:

i. Where there is illegality

ii. Where there is irrationality/illogical judgment.

iii. Where there is procedural impropriety.

THE POSITION IN TANZANIA ON EXCLUSIONARY CLAUSE:-

There are a number of authorities in Tanzania evidencing that, the court puts a strict construction to exclusionary clauses. In the case of Mtenga vs. UDSM [1971] HD 247. The late Biron J was confronted with s. 27 (1) of the Permanent Labor Tribunal Act of 1967 which read: “every award and decision of the tribunal shall not be liable to be challenged, reviewed, questioned or called in question in any court serve on ground of lack of jurisdiction”. His Lordship held that; the jurisdiction of the court was not ouster as the permanent labor tribunal had just given an advise under s. 10 of the Act  but did not give any award or decision in accordance with the statute. His Lordship had further this to say on ouster clauses: “the legislator may, and often does, I am afraid far too often, oust the jurisdiction of the courts in certain matters. But for the court to find that the legislature has ousted his jurisdiction the legislature must so state in no uncertain and in the most unequivocal terms”. 

In another case Mwanza Restaurant and Catering Association vs. Mwanza Municipal Director HC, Mwanza, Miscellaneous civil cause no 3 of 1987(unreported). The court dealt with the issue of refusal by the price commissioner to review prices relying on s. 15 of the Regulations of Prices Act, of 1973 which provided that; “no decision of the price commissioner, the price commissioner or assistant commissioner made or purporting to have been made pursuant to any provision of this part shall be subject to review by any court on any ground whatsoever”. Mwalusanya J, as he then was, held that, the decision under the Act envisages a judgment in one way or the other about prices. He went on to observe; “however, even if we take the conduct of the respondent refusing to review the prices to be a decision, still I will held that, the jurisdiction of this court has not been ousted”.

Similarly in the case of  Tanzania Air service Ltd vs. Minister for labour and others [1996] TLR 217.Samatta J.K( as he then was) held that: although s.27(1) of the security of employment act, 1964 provided that ; “ the decision of the minister on a reference made from labor conciliatory board was final and conclusive”. Mandamus could issue to compel a minister to give reasons for his decision which was made without assigning any reason at all.

Therefore there is no remarkable difference between the position obtained in England and the one in Tanzania on the attitude of the courts towards ouster clauses.