VIDYADHAR GIRDHARAL CHAVDA v THE DIRECTOR OF IMMIGRATION SERVICES AND OTHERS 1995 TLR 125 (HC)

 

VIDYADHAR GIRDHARAL CHAVDA v THE DIRECTOR OF IMMIGRATION SERVICES AND OTHERS 1995 TLR 125 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Samatta JK B

Misc Civil Cause No 5 of 1995 C

March 7, 1995

Flynote

Administrative Law - Prerogative orders - Ad-interim injunctive orders pending

hearing application for leave - Whether court may grant ad-interim injunctive order

before granting leave to apply for prerogative orders.

Administrative Law - Injunctive orders against the Government - Whether the High

court has power to grant injunctive orders against the Government, its ministers or

officials - Section 11 of the Government Proceedings Act 1967. D

-Headnote

In this application the High Court considered, inter alia, whether it has power to E

grant an injunction against the Government, a government minister or official in the

light of the provisions of the Law Reform (Fatal Accidents and Miscellaneous

Provisions) Ordinance Act 1968 as amended by the Written Laws (Miscellaneous

Amendments) (No 3) Act 1991 and s 11 of the Government Proceedings Act, 1967. In

particular the Court considered whether the term 'civil proceedings' as defined in s

2(1) of the Government Proceedings Act includes an application for an F order of

injunction against the Government, government minister or official.

Held:

(i) The term 'civil proceedings' was intended to have a restricted meaning;

it was intended to mean civil matters as understood in the traditional sense of the

term, that is to say, civil matters that are dealt with under the High G court's general

civil jurisdiction;

(ii) Any statutory provision which purports to restrict this Court's

jurisdiction, including inherent jurisdiction, must in the interest of everyone, be

construed strictly;

(iii) The application of that principle in the interpretation of s 11 of the H

Government Proceedings Act compels the holding that the term 'civil proceedings' in

the subsection does not embrace proceedings for prerogative orders;

(iv) The prohibition imposed by ss (2) of s 11 of the Government

Proceedings Act was not intended to, and does not, extend to an application in which

the relief sought is injunction itself; I

1995 TLR p126

SAMATTA JK

A (v) the High Court has power to grant an interlocutory injunction before

hearing application for leave to apply for a prerogative order.

Case Infomation

Order accordingly

Cases referred to:

B (1) M v Home Office [1993] 3 WLR 433

(2) R v Bishop of Oxford [1879] 4 QBD 245

Mkono for the applicant.

Mallaba for the respondents.

[zJDz]Judgment

C Samatta, JK:

In this application, an issue of novelty and great importance arises, namely whether

this court has the power to grant an injuction against the Government, a government

minister or official. The issue has arisen in this way. The applicant is engaged in a

legal battle against a deportation order made against him by the D second

respondent, who is Minister for Home Affairs, under the Immigration Act. On 2

February 1995, he filed before this Court an application against the Director of

Immigration Services (the first respondent), the second respondent and the E

Attorney General, who was made a party to the proceedings in compliance with s 17

of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Act,

1968, as amended by the Written Laws (Miscellaneous Amendments) (No 3) Act,

1991, for two reliefs, namely; (1) leave to apply for order of certiorari, mandamus and

prohibition, and (2) an injunction (in the Chamber summons the F word used is

prohibition) restraining the first two respondents, pending the disposal of the prior

application from detaining or deporting him for reasons which need not be given

here. The application for injunctive relief was heard a day before the application for

leave was heard. Mallaba, Senior State Attorney, appearing for G all three

respondents, strongly opposed the application (for injunction) contending that this

Court, before granting leave to apply for certiorari, mandamus or prohibition, has no

power to grant an interim order. I rejected the argument and H made an order

restraining the first and second respondents, pending the hearing of the application

for injunctive relief, from detaining or deporting the applicant.

When, six days later, the application for interlocutory injunction was called on, Mr

Mallaba raised a point in limine. He contended, citing s 11 of the Government

Proceedings Act, 1967 (the Act), that this Court has no power to make an injunctive

order against the I

1995 TLR p127

SAMATTA JK

Government, its ministers or officials. According to the learned Senior State A

Attorney what the Court can do in circumstances in which the parties are private

persons is grant injunctive orders, or to make an order declaratory of the rights of the

parties. Section 11 of the Act reads:

11. (1) In any civil proceedings by or against the Government the court shall,

subject to the B provisions of this Act, have power to make all such orders as it has

power to make in proceedings between private persons, and otherwise to give such

appropriate relief as the case may require:

Provided that - C

(a) Where in any proceedings against the Government any such relief is

sought as might in proceedings between private persons be granted by way of

injunction or specific performance, the court shall not grant an injunction or make an

order for specific performance, but may in lieu thereof make an order declaratory of

the rights of the parties; and D

(b) in any proceedings against the Government for the recovery of land or

other property the court shall not make an order for the recovery of the land or the

delivery of the property, but may in lieu thereof make an order declaring that the

plaintiff is entitled as against the Government to the land or property or to the

possession thereof. E

(2) The court shall not in any civil proceedings grant any injunction or make

any order against an officer of the Government if the effect of granting the injunction

or making the order would be to give any relief against the Government which could

not have been obtained in proceedings against the Government. F

The term 'civil proceedings' is defined in s 2(1) of the Act as including proceedings in

this court or a magistrate's court for the recovery of fines or penalties, and the phrase

'proceedings against the Government' is defined by the same subsection G as

including a claim by way of set-off or counterclaim raised in proceedings by the

Government. Mr Mkono, for the applicant, sought to counter Mr Mallaba's argument

by contending that s 11 of the Act has no application where s 30 of the Constitution

of the United Republic (constitution) is applicable. It was the learned H advocate's

contention that the constitutional provision is applicable to the instant application.

He drew my attention, citing M v Home Office (1) that in spite of the fact that s 21 of

the Crown Proceedings Act, 1941, contains prohibitions identical with these imposed

by s 11 of the Act, the House of Lords decided, in the cited case, that courts in

England have the power to issue coercive orders, including injunctions, I

1995 TLR p128

SAMATTA JK

A against a government minister or department. Section 11 of the Act and s 21 of

the English legislation are, save for the use of the words 'Crown' and 'subjects' instead

of 'Government' and 'private persons', respectively, in pari materia with s 30 of the

Constitution which deals with limitations upon and the enforcement and protection

of basic rights and duties. B

It cannot be doubted that Mr Mallaba's preliminary point raises an issue of

considerable importance on the enforcement by this court of the provisions of the

Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Amendment)

Act, 1968, the legislation which confers on this court the power to C grant

prerogative orders. While I find Mr Mkono's argument concerning s 30 of the

Constitution very interesting, I do not find it necessary, in law, to determine Mr

Mallaba's preliminary point on constitutional grounds. I think the point can be

adequately dealt with on non-constitutional grounds. It is a rule of constitutional D

interpretation that if the court can decide a case before it on non-constitutional

grounds, that course should be preferred; see The Guide to American Law, at 375. I

proceed, therefore, to consider the merits or otherwise of the non-constitutional

contentions addressed to me.

E The decision of the House of Lords in M v Home Office, supra, demonstrates, I

respectfully think, the modern approach of courts towards their (courts) duty to

control government actions and omissions which affect the freedoms and rights of the

individual. The complex facts of the case are accurately summarised by the learned

authors of Cases and Materials on Constitutional and Administrative Law 3rd ed at

197-198. I gratefully adopt that summary: F

'M, a citizen of Zaire, arrived in the UK seeking political asylum. The Home

Office rejected his application and ordered his removal from the UK, which was to

take place by 6.30 p.m. on 1 May 1991. At 5.20 p.m. (after the Court of Appeal had

refused an application for leave to apply G for judicial review of the decision) a fresh

application for leave to apply to move for judicial review, alleging new grounds, was

made to Garland J in chambers. Garland J indicated at about 5.30 p.m. that he wished

his departure to be postponed pending consideration of the application, and he

understood from counsel for the Home Office that an undertaking to that H effect

had been given. (Counsel understood that he had only undertaken to endeavour to

prevent M's removal.) Due to bungling and breakdown in lines of communication,

M's departure was not prevented nor was he removed from the onward flight to Zaire

during a stopover at Paris. At 11.20 p.m. Garland J, being informed of M's removal

from the jurisdiction, made an ex parte order I

1995 TLR p129

SAMATTA JK

requiring the Home Secretary to procure the return of M to the jurisdiction

and granting the A Home Secretary the liberty to apply for variation or discharge of

the order on the morning of 2 May. Home Office officials then made arrangements

for M's return. On the afternoon of 2 May, the Home Secretary, having taken advice

from his officials and Treasury Counsel, concluded that the underlying asylum

decision had been correct and that Garland J's ex parte order, B being a mandatory

interim injunction against a minister of the Crown, had been made without

jurisdiction. Thereupon he cancelled the arrangements for M's return. On 3 May he

applied to Garland J to set aside the order of 1 May, which Garland did. Proceedings

were then brought on behalf of M against the Home Office and the Home Secretary

alleging contempt of court in C respect of the breach of the undertaking and the exparte

order requiring M's return. Simon Brown J dismissed this motion on the basis

that since the Crown's immunity from injunction was preserved by s 21 of the Crown

Proceedings Act, 1947, neither it nor its departments, ministers and officials acting in

the course of their duties could be impleaded for contempt of court. The applicant

appealed'. D

The Court of Appeal, by a majority, allowed the appeal, holding that Brown J had

mistakenly interpreted the law. The original order by Garland J should not have been

made as injunctions could not be issued against the Crown. The Court went E on to

hold, however, that as the order was binding until set aside, failure to comply with it

constituted a contempt. It also held that while the Crown and Governments

Departments are not subject to the contempt jurisdiction of the High Court because

they are non-persons, Mr Baker, the Home Secretary, was F personally guilty of

contempt. The Home Secretary appealed and the applicant cross appealed in respect

of his original application against the Home Office. The House of Lords had to decide

two issues of constitutional import, namely:

1. Could an injunction be issued against a government minister, and G

2. Could a government minister or department be found to be in contempt of

court for failure to comply with an order of court? H

The House answered both issues in the affirmative. Their Lordships founded their

decision on two grounds; firstly, on the wording of s 31 of the Supreme Court Act,

1981, which essentially, contains provisions regarding (i) the procedure for applying

for prerogative orders of mandamus, prohibition and certiorari, (ii) the powers of the

High Court in such applications and (iii) non-prerogative reliefs I

1995 TLR p130

SAMATTA JK

A which may be sought and granted in an application for prerogative orders and (2)

on the undesirability of the English law being inconsistent with the Community law

on the matter. Their Lordships were of the opinion that s 21(2) of the Crown

Proceedings Act, 1947, did not apply to judicial review jurisdiction as that branch of

the law was controlled by the Supreme Court Act. In the course of his speech, B

Lord Woolf (with who all their Lordships agreed) said, at 456H--C:

'... as in private law proceedings, once the Crown or a body representing the

Crown is a party to proceedings, unless some express restriction exists, the Crown,

like any other litigant, is liable to have interlocutory orders made against it with

which it is required to comply....' C

And at 461 his Lordship said:

D '[the] decision not to amend section 21 (of the Crown Proceedings Act) is not

really surprising bearing mind that the exercise in hand related to public law

proceedings while section 21 dealt with private or 'civil' law proceedings.'

E In the course of his short speech, Lord Templeman said, at 431:

'My Lords, the argument that there is no power to enforce the law by

injunction or contempt proceedings against a Minister in his official capacity would,

if upheld, establish the proposition that the executive obey the law as a matter of

grace and not as a matter of F necessity, a proposition which would reverse the

result of the Civil War. For the reasons given by noble and learned friend, Lord

Woolf, and on principle, I am satisfied that injunctions and contempt of court

proceedings may be brought against the minister in his official capacity ...'

G What is the legal position here in Tanzania? To that question I now turn my

attention. In the scope of the meaning of the words 'civil proceedings' in s 11 of the

Act (the Government Proceedings Act, 1967), so wide as to embrace proceedings in

which, as in the instant application, a temporary injunctive relief is sought? H

Although in the Act there is no provision similar to s 31 of the Supreme Court Act (of

England, I am of the settled opinion, bearing in mind the definition of term civil

proceedings' in s 2(1) of the Act, and taking into account of the definition of the

phrase 'proceedings against the Government' given in the same subsection, that the

word 'civil' there has not been used to mean the opposite of I

1995 TLR p131

SAMATTA JK

'criminal'. Thus, constitutional proceedings and proceedings which are instituted A

under this Court's supervisory jurisdiction, that is to say, the jurisdiction to supervise

statutory and domestic tribunals conferred on the court by s 17(2) of the Law Reform

(Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) as amended by

the Law Reform (Fatal Accidents and Miscellaneous Provisions) B Ordinance

(Amendment) Act, 1968, must be held to be excluded by the term. The term was

intended to have a restricted meaning; it was intended to mean civil matters as

understood in the traditional sense of the term, that is to say, civil matters that are

dealt with under this Court's general civil jurisdiction. Any statutory C provision

which purports to restrict this courts jurisdiction, including inherent jurisdiction,

must, in the interests of everyone living within the territorial boundaries of the

United Republic, be construed strictly. The application of that principle in the

interpretation of s 11 of the Act compels me to hold, as I have already indicated, D

that the term 'civil proceedings' in the subsection does not embrace prerogative

proceedings. In my opinion, s 11 is related to private law litigation only.

Even assuming that the words 'civil proceedings' cover prerogative proceedings, I

would still regard Mr Mallaba's contention as untenable in law, because there is E

another ground which compels the rejection of that argument. The relief referred to

in ss 11(1) of the Act must, in my considered view, be a relief other than an

injunction and specific performance. I have not the faintest doubt that to construe the

subsection otherwise would make the words 'by way of' therein superfluous. It F is a

settled canon of statutory interpretation that a statute should be so construed that, if

it can be prevented, no clause, phrase sentence or word shall be superfluous, void or

insignificant: See R v Bishop of Oxford (2) at 261. Unless the necessity or

intractability of language in a legislation dictates otherwise, it is the G duty of a

court to give effect to all words contained in the legislation. I can see no

characteristics in ss 11(1). In my opinion, the words 'by way of' are not, and were not

intended to be, insignificant in the provision. Those words were intended to, and do,

control the meaning to be attached to the word 'relief' preceding them. They have the

effect of excluding in intended and specific performance from the H meaning of that

word. If the word (relief) were construed to include injunction the subsection would

read very oddly, indeed. How can one, I ask, speak of a relief of injunction being

granted by way of injunction? Neither to a lawyer not to an expert in English

language would that statement make any sense. I refuse to reduce the subsec- I

1995 TLR p132

SAMATTA JK

A tion to the rank of absurdity. In my judgment, the prohibition imposed by the

subsection was not intended to, and does not, extent to an application, like the instant

one in which the relief sought is injunction itself. I would be skipping the words 'by

way of' in the subsection, as the learned Senior State Attorney appears to have done,

to hold that the word 'relief' there includes injunction. I can see no B warrant for

doing so. On the contrary, I am profoundly convinced that both the law and common

sense force one to the view that the use of those words was, as I have already, I hope,

sufficiently demonstrated, intended to limit the scope of the meaning of the word

'relief' in the subsection. It is my duty to attach due weight to C the words which

Parliament, in its wisdom, has chosen to use. If, in my opinion, Mr Mallaba's

argument on the effect of the subsection were right, personal freedoms and rights

would have been placed in great jeopardy, as there would be inadequate judicial

protection against unlawful conduct on the part of those who D are entrusted with

the power of governing this country or determining, non-judicially, the rights of

individuals. If that situation were to exist, the rule of law in the country would

greatly suffer, with the result that members of the public would be tempted to regard

the law as being a series of hazards separating the litigant from justice. The courts

must do everything possible under the law to E prevent that wrong impression of

the law being formed. The law should be there to promote and not impede justice. In

this country, a decision or order of a government minister or official, regardless of his

or her rank, cannot outweigh the law. To borrow the argument of Lord Woolf in his

speech in the M case supra (at 445H): F

'... circumstances can occur where it is in the interests both of a person who is

subject to powers of government and of the government itself that the courts should

be in a position to make an order which clearly sets either what should or what

should not be done by the government.' G

Any collision between the freedom of the individual and the security of the State, in

any sphere of national life, does not, in my considered opinion, dictate the H

acceptance of Mr Mallaba's argument. If the law were as contended by the learned

Senior State Attorney, justice would have been wearing a bandage over her eyes as

she could not bear to see some of the decisions made in her name in that branch of

the law. I can find no reason for believing that Parliament could have intended to

create such a situation. I

1995 TLR p133

SAMATTA JK

Before parting with this application, I should, I think, say a word or two on one A

important point. Since overruling Mr Mallaba's objection to this Court granting an

injunction pending the hearing of the application for leave to apply for certiorari,

mandamus and prohibition on the ground that the court lacked jurisdiction to do so, I

have found a passage in the judgment of Lord Woolf in M's case, supra, which if I B

may respectfully say so, plainly demonstrates that the High Court in England has the

power to grant an interlocutory injunction pending the hearing of an application for

leave to apply for judicial review. The passage, at 463--464, reads: C

What has been said so far does not mean that Garland J was necessarily in

order in granting the injunction. The injunction was granted before he had given the

applicant leave to apply for judicial review. However, in a case of real urgency this

was, the fact that leave had not been granted is a mere technicality. It would be

undesirable if, in the situation with which Garland J was faced he had been compelled

to give leave because he regarded the case as an D appropriate one for an Interim

injunction. In the case of civil proceedings there is recognition of the jurisdiction of

the court to grant interim injunctions before the issue of a Writ, etc. (See Ord 29, rule

(3)) and in an appropriate case there should be taken to be a similar jurisdiction to

grant interim injunctions now under Ord. 53. The position is accurately set out in

notice 53/1--14/24 to The Supreme Court Practice 1993 where it is stated that: E

'Where the case is so urgent as to justify it, (the judge) could grant an

interlocutory injunction or other interim relief pending the hearing of the application

for leave to move for judicial review. But if the judge has refused leave to move for

judicial review he is functus officio and has no jurisdiction to grant any form of

interim relief. The application for an interlocutory injunction or other interim relief

could, however, be renewed before the Court of Appeal along with the renewal of the

application for leave to move for F judicial review.'

If I may repeat what I ventured to say in my earlier ruling, there is no room for doubt

G that this Court has the power to grant an interlocutory injunction before hearing

an application for leave to apply for a prerogative order.

For the reasons I have given, I am satisfied that the law, justice and common sense

dictate that I uphold Mr Mkono's contention that s 11 of the Government H

Proceedings Act does not stand in the applicant's path in the instant application.

Except to autocrats, it must be intolerable that, in a democratic society like ours,

courts should be impotent to grant a temporary injunction in favor of an individual

who complains of unwarranted or oppressive use of statutory powers by a

government minister or official. It should be I

1995 TLR p134

SAMATTA JK

A made perfectly clear, I think that this Court can halt the bulldozer of the State

before it squashes the right of an individual, company or society.

The preliminary point fails. B

1995 TLR p134

C