Judicial review (remedies and criteria for issuance) by Johnson Yesaya

 PRELIMINARY

Judicial review is a re-visit by superior court of decisions passed by subordinate courts or administrative bodies to check its validity. High Court of Tanzania has original jurisdiction on reviewing decisions of administrative bodies. Judicial review always intends to check the legality of all procedures applied to reach a decision by administrative bodies. There is a huge possibility for High Court to enter prerogative orders if, there is clear evidence that, the decision passed by administrative body is ultra vires, illegality, passed without regarding procedural requirements set by laws and the decision passed is un-reasonable.

High Court powers are extended  to  acts  and  omissions  or  decisions of  the  government departments  in  the  field  of  public  law. The  high  court  pass through  decision,  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 important legal procedure through which civilians of United Republic of Tanzania can challenge the oppressive orders made by executive. Judicial review as a “stand alone” procedure is not a remedy but is a mere procedure through which an individual (s) may require orders of the court remedying loss or harm suffered. 

The Constitution of United Republic of Tanzania , under several articles, it protect basic rights against people and it provide an avenue that can be used by those whose rights violated to achieve justice. Article 30(3)  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”. 

An individual affected by oppressive orders made by government, may apply for prerogative orders to be entered by High Court to secure basic rights and interests of individuals violated. Application for judicial review is by chamber summons supported by an affidavit. Application must prior seek leave of the court to apply for judicial review. Section 17(2) of The Law Reform (fatal accidents and miscellaneous provisions) Act , impose powers to the High Court to issue prerogative orders against any public department or body or any individual with administrative powers which may affect rights and well being of citizens.

JUDICIAL REVIEW REMEDIES

Prohibition is one of the remedy for judicial review, prohibition is a “STOP” order. Prohibition is a judicial review remedy which prohibit an administrative body to act on a particular activity which may affect well being of citizens. An application for this order, as any other legal proceeding, a person./group of people seeking prohibition order must have locus standi to lodge their application. They must also show to what extent the decision passed by government bodies affects their living in social and economic aspect.

In PETER SHIRIMA v KAMATI YA ULINZI NA USALAMA, WILAYA YA SINGIDA,THE AREA COMMISSIONER AND THE A.G .This was an ex parte application for leave to apply for orders of certiorari and prohibition. The applicant, Peter Shirima, owned and ran a shop in Singida township.  On 15th August, 1981 the police entered the shop and seized a quantity of shop goods.  On 25th August the applicant was charged before the District Court of Singida with the offences of selling goods in excess of the maximum prices contrary to sections 20 and 26 of the Regulation of Prices Act  and hoarding contrary to what were cited as sections  194 A(c)(i)(ii) and 4 of the Penal Code . The trial commenced on 17th September when some evidence was adduced by the prosecution and the goods were tendered as exhibits.  At the resumed hearing on 18th September the charges were  withdrawn under s. 86(a) of the Criminal Procedure Code .  Thereupon the trial magistrate made an order restoring the goods to the police.

Later, applicant's goods were sold out, his license got cancelled and he was ordered to leave Singida municipality within few days. On review, court quashed the decision and prohibited O.C.D and Kamaati ya ulinzi na usalama as cited in the ruling, to proceed to implement their ultra-vires decision.

Mandamus, 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 THOMAS REUBEN vs NATIONAL EXAMINATION COUNCIL OF TANZANIA & ANOTHER , Thomas was an applicant who was aggrieved by decision of NECTA which suspended his form four national examination results on ground of cheating. The applicant in his affidavit, he stated that he was not given a right to be heard which is an important principle of natural justice. The court agreed on applicant request and granted him leave to file application for orders of certiorari and mandamus.

Certiorari is an order of the superior court quashing decision of subordinate courts or administrative bodies. Certiorari is not  an alternative order against an order issued by administrative body, but it is an order to set aside a decision made to allow a matter to be tried afresh.  The aim 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.

Error of jurisdiction, error apparent of fact of record (this happens when an inferior court or tribunal takes into account irrelevant consideration or refuse to admit admissible evidence) and violation of natural justices are among suitable grounds for certiorari.

Habeas corpus is another remedy for judicial review. Habeas corpus is an order of the court against government departments to release or bring before court person who is unlawful held under custody for determination of his bail. This order is preferred when government bodies responsible for justice continue to held under custody an arrest without charging him with any offence. As other applications, habeas corpus can be applied, and is by way of chamber summons supported by applicant's affidavit.

CRITERION FOR ISSUANCE OF JUDICIAL REVIEW REMEDIES

Procedural impropriety. This is one of the grounds for issuance of judicial review remedies, public bodies are creatures of law, they are full of regulations and principles which govern mode of conducting complaint proceedings between individual or institution. The principles set in laws and regulations must be followed in conducting complaints, failure to abide to those rules and regulations creates procedural irregularity which is an essential element for judicial review.

Procedural impropriety covers a wide scope. Not only failure to adhere to procedures set by statute in complaint amount to procedural impropriety, but failure by administrative bodies to act on promises they made to citizens may become a procedural impropriety especially when individuals acted upon promise made by government and they suffered loss. 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.

Jurisdictional error. Jurisdiction is an official power of the body, court, organ or court to determine matters submitted before it. As a matter, it is illegal for a body, tribunal, court or institution to pass decision which they have no legal authority to pass, a decision passed out of jurisdiction is null and lacks force of the law. In case the administrative body acted without jurisdiction, the decision reached is called ultra-vires because such decision made without power to do so hence subject to certiorari.

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.”

Error of law is another suitable ground for issuance of judicial review remedies. All legal procedures to reach justice are provided within statutes, when one is making decision must show where in law he derives powers to make a particular kind of order or decision. Decision of the court or tribunal cannot be made without citing necessary provisions of the laws or by citing wrong or non existing provisions, error of law involves using irrelevant provisions of the law to a matter before tribunal or court, or citing non-existing provision. 

If a tribunal decided a matter in error of law, it is a suitable ground for prerogative orders because no action can be done by a court of tribunal in proceedings without adhering to existing provisions.

Irrationality/un-reasonableness. This is another ground for the issuance of judicial review remedies. The decision of the court or tribunal must be sound to eyes of the law, decision must be issued in regarding to all circumstances which ensure well being of the citizens, a decision which do not conform to the expectation of people may be regarded as unreasonable because it falls out the decision that would have be made by a reasonable person.

If High Court get satisfied that, a particular decision was un-reasonable and there no any need to pass such un-reasonable decision, the quashing order is inevitable.

CONCLUSION

Prerogative orders are public law remedies which cannot be issued against a private person. A private person who can be covered in prerogative orders is a one with administrative powers, or a one with public powers which may affect well being of citizens. A person who intends to acquire orders with same effect as prerogative orders, he may apply in a civil application for interlocutory orders as provided under Civil Procedure Code 

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