Analysis for judicial review by Johnson Yesaya

 PRELIMINARY

Judicial review is when the High Court reviews the decision passed by administrative bodies to check its validity. Judicial  review  is  a  specialized  remedy  in  public  law  by  which  the  High  Court in Tanzania,  exercises  a  supervisory  jurisdiction  over subordinate  courts, tribunals bodies. and  other  public bodies.  The  supervisory  power  of  the  high  court  is  extended  to  acts  and  omissions  or  decisions of  the  public  bodies  in  the  field  of  public  law. The  high  court  cross check  decisions,  actions  or  omissions  by  the  executive,  legislature  or  the subordinate  courts  only  to  retain  fairness.  The  fairness  is  determined  based on provisions of constitution,  such  decisions,  actions  or  omissions  are  examined  as  whether  they  are  consistent with the  constitution. 

Judicial review is an essential tool in the hands of Judges of this country by which an ordinary citizen can challenge oppressive administrative action. Judicial review always intends to acquire prerogative orders remedying the impacts suffered by people after breach of their rights either by private person with administrative authorities or government departments. 

Article 30(3) of The Constitution of United Republic of Tanzania  provides that, “Any person claiming that any provision in this Part of this Chapter or in any law concerning his right or duty owed to him has been, is being or is likely to be violated by any person anywhere in the United Republic, may institute proceedings for redress in the High Court”. This article empowers civilians to institute litigation against any person, organization or government department where there is breach of basic human rights. 

A person aggrieved by any order or decision of administrative bodies may apply to the High Court for prerogative orders. An application to the High Court is by way of chamber summons supported by an affidavit, application must seek leave of the court to apply judicial review. A High Court is empowered to issues prerogative orders as provided under section 17(2) of The Law Reform (fatal accidents and miscellaneous provisions) Act . 

The section above provides that, “  In  any  case  where  the  High  Court  would  but  for  subsection  (1)  have  had jurisdiction  to  order  the  issue  of  a  writ  of  mandamus  requiring  any  act  to  be  done  or  a  writ  of  prohibition  prohibiting any  proceedings  or  matter,  or  a  writ  of  certiorari  removing  any  proceedings  or  matter  into  the  High  Court  for  any purpose,  the  Court  may  make  an  order  requiring  the  act  to  be  done  or  prohibiting  or  removing  the  proceedings  or matter,  as the  case  may  be.”

PROCEDURE FOR JUDICIAL REVIEW

As they are typical public law remedies, judicial review remedies cannot be issued against a private person unless that person is vested with some administrative authority or other powers of a public nature. These are remedies available for the public authorities or administrative bodies. Formerly prerogative 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. .

The citation format described above is no longer applicable in Tanzania but  rather the citation format in constant use in Tanzania is; the litigant who institute the ligation 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 clearly 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  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. Section 17(2) of the same statute provides an avenue for people to institute ligation against breach of their basic rights by administrative bodies and it empowers High Court to issue prerogative orders (mandamus, certiorari, prohibition and habeas corpus) in case court satisfied by the complaint and evidence adduced by both parties.

JUDICIAL REVIEW REMEDIES

Certiorari or quashing order is a writ of High Court in case of Tanzania, which quash decision issued by administrative bodies or private individuals with administrative authority. Certiorari is not an order to substitute an invalid decision issued by administrative bodies, certiorari only seek to set aside illegally obtained decision and it makes no new order concerning the subject matter of the suit nullified. When decision passed by administrative bodies get nullified, it is an automatic trial de novo or issuing a new order by administrative bodies within prescribed legal procedures. The objective of the remedy of quashing order is to keep inferior courts and quasi-judicial authorities within the limits of their jurisdiction and if they act in excess of their jurisdiction their decisions can be quashed by superior courts. 

Mandamus, is another powerful writ in the hands of the courts. It is an order of the High Court which compel a public body/department to perform a public duty imposed on it by the constitution or by any other law. This is a judicial remedy which is in the form of an order from superior court to inferior court to do or forbid from doing some specific out of which that body is obliged under the law to do or refrain from doing. Mandamus as a prerogative order lies solely of the discretion on the court thus, there must be consideration which influence the court in deciding whether to grant an order of mandamus or not.  Mandamus is the procedure whereby a citizen with sufficient legal interest may apply to the High Court to compel a public officer to perform a public duty entrusted to him.

In JOHN MWOMBEKI BYOMBALIRWA vs. REGIONAL COMMISSIOER, KAGERA AND OTHERS  Mwalusany, J., set out five requirements to be proved so that the court may issue an order of Mandamus. Requirements are, (a) The applicant must have demanded performance and the respondent must have refused to perform, (b) The respondent as public officer must have public duty to perform imposed by the statutes or any other law but it should not be duty owed solely to the state but should be a duty owed as well to the individual citizen, (c) The public duty must have been imposed on the authority and the performance of that duty should be im0pertive and not optional; if at its own discretion, government makes a rule to grant clearance allowance to its employees there is not legal duty and the writ of mandatory can not be issued against the government’s performance of that duty, (d) Applicant must have a locus stendi that is, he must have sufficient interest in the matter and (e) there should be not other appropriate remedy available.)

Prohibition operates as a stop order. It prohibit/restrict a public body or administrative body from continuing to perform a certain act or duty 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 is 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.

Habeas corpus is an order of the High Court to release a person unlawful held in custody by state departments. In some cases, habeas corpus is an order to bring before court a person unlawful detained to determine his/her bail. This application is preferred when a person is held under custody without being charged with any offence and without being taken to court to answer charges.

CRITERION/GROUNDS FOR ISSUANCE OF JUDICIAL REVIEW REMEDIES

Error of jurisdiction is one of the grounds which may trigger issuance of prerogative orders. when an inferior court or tribunal act without jurisdiction or in excess of its jurisdiction or failure to exercise Jurisdiction vested in it by law, it is said that, the court acted ultra vires. In REPUBLIC vs. MINISTER OF TRANSPORT , a minister for transport revoked a license without jurisdiction, it was ruled that, the decision of a minister was ultra vires since a minister acted without being empowered by law to be capable to revoke license.

in PATMAN GARMENTS INDUSTRIES LTD vs. TANZANIA MANUFACTURING LTD , the issue was whether the court had power to impugn the validity of the order of the President to revoke a right of occupancy. It was held inter alia that, “the courts have power to review administrative action made with reference to executive functions of the President under the Land Ordinance if he has acted either improperly or mistakenly.”

Procedural impropriety applies where the public authority did not adhere to procedural requirements or breached Convention rights. Public authorities in Tanzania must act fairly and without bias. The court needs to be persuaded that there is a real risk of a decision being biased. This ground can also be used where there is a complaint that a public authority had promised to perform in a certain way but then failed to do so. In this case, it may be possible to apply for Judicial Review where there was a legitimate expectation that a particular course of action was to be followed. See MWANZA RESTAURANT AND CATERING ASSOCIATION vs. MWANZA MUNICIPAL DIRECTOR 

All procedures provided by the law in handling a particular matter must be adhered to, impropriety in making decision may trigger judicial review which will end up by prerogative orders by superior court.

Error of law/illegality a broad category and applies where a public authority acted without the legal ability or power to do so or for improper purposes. A public authority cannot act outside of the powers given to it by legislation. The organization must not delegate its discretion to make decision improperly or use its powers for purposes that it was not intended.

Irrationality/un-reasonableness is another ground for issuance of prerogative orders. Irrationality as  a  ground  for  judicial  review  it  is  associated  with  what  is  referred  to  as Wednesbury  unreasonableness.  In  Associated  Provincial  Picture  Houses  Ltd  v  Wednesbury   the  Court  of  Appeal  held  that  a  court  could  interfere  with  a  decision  that  was  so unreasonable  that  no  reasonable  authority  could  ever  have  come  to  it.    Irrationality  applies  to  a decision  which  is  so  outrageous  in  its  defiance  of  logic  or  of  accepted  moral  standards  that  no sensible  person who had  applied his  mind to the  question to be decided could have  arrived at it.

CONCLUSION

Prerogative orders cannot be issued to a private person. Prerogative orders are special for administrative bodies and individual with administrative powers. A person seeking orders to restrict a private person not connected to public authority from performing a particular act, may apply for interlocutory orders (injunctions against that person) not by judicial review.

REFERENCE

STATUTE:

The Law Reform [Fatal Accident and Misc. Provision] Act of 2002

The Constitution of United Republic of Tanzania Cap 2 of 1977 as amended

BOOKS:

Bisimba, H and C.M. Peter (2005), Justice and Rule of Law in Tanzania; Legal and Human Rights, Tanzania.

Thakker, C.K (1995), Lectures on Administrative Law, Eastern Book Company, Lucknow.

Peter, L and G. Anthony (2005), Administrative Law, 5th Ed, Oxford University Press Inc, New York.

CASES:

Abadiah Saleh vs. Dodoma Wine Co. Ltd High Court of Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of 1989

John Mwombeki Byombalirwa vs. Regional Commissioer, Kagera and Others High Court of Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of 1989

Mwanza Restaurant and Catering Association vs. Mwanza Municipal Director High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No. 3 Of 1987