A COMPILATION OF CASES OF JUDICIAL REVIEW

By Evarist Baimu

Nyaga Mawalla
TABLE OF CONTENTS

1. INTRODUCTION; NATURE AND SCOOPE OF JUDICIAL REVIEW

1.1 Shivji. I.G , Development in Judicial Revenue in Mainland Tanzania, Paper
presented in the Judges, Courses on Constitutionalism & Human Rights,
21.09.1998.
1.2 Maharaj V Attorney General of Trindad & Tobago (No.2.) (1979) AC 385.

2. JURISDICTION AND OUSTER CLAUSES

2.1 Anisminic Case
2.2 Attorney General V Lohay Aknonaay & Anor, Civil Appeal No. 31 of 1994,
(CA)
2.3 BAWATA & 5 others V Registrar of Societies , Misc, Civi. Cause No. 27 of 1997
2.4 DPP V Angelina Ojare, Criminal Appeal No. 21 of 1997, (CA)
2.5 Hamisi Ally Ruhondo & 115 v TAZARA, Civ. Appeal No. 11986(C.A)
2.6 In Re: Ministry of Labour (Applicant Joseph Cassian), Misc. Civil cause No. 14
of 1977, HC at DSM
2.7 Mwanza Restaurant V Mwanza Municipal Director, Misc. Civ cause No.3 of
1987, HC at Mwanza
2.8 OTTU v Attorney General & Anor. Civil case No. 53 of 1994, HC at Dar-es-
Salaam
2.9 R v panel of Take –over and Mergers, ex p Datafin [1987] Q.B.815

3. LOCUS STANDI
3.1 Lujuna Shubi Ballozi v The registered trustee of trustee of CCM, Civil case No.
214 of 1994
3.2 Mtikila v Attorney General, Misc. civil case No.5 of 1993, HC at Dodoma

4. PROCEDURE
4.1 American Cyanamid v Ethicon Ltd [1975]1 ALLE.R 504
4.2 Andrew W. Nkuzi v Tanzania Sisal Authority, Misc. Civ cause No.3 of 1994, HC
at Dar-es-Salaam

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4.3 Assistant Imports controller v Magnum agencies Civappeal No.20 of 1990
4.4 Farmers Bus Services v Transport Licensing Appeals Tribunal (C.A) [1959] E.A
779
4.5 Golcher v General Manager of Morogoro canvas Mill 1987 TLR 78 (HC)
4.6 Josia Balthazar Baiz & others v Attorney General Civ. Cause no. 39 of 1997
4.7 Kahama Goldmines v Minister for Energy, Misc. Civ cause 127 of 1988, HC at
Dar-es-Salaam.
4.8 Mecaina Establishment v Commissioner for Income Tax No. 14 of 1995, (AC)
4.9 Mtikila & another v AG & another, Civ. Appeal No. 28 of 1995
4.10 NHC v Tanzania Shoe Co & 28 others, Civ. Appeal No. 40 of 1994 (AC)
4.11 Peter Ng’omango v Mwangwa & AG, Civil case No. 22 of 1992, NHC at
Dodoma
4.12 Pumbun & Anor. V AG, Civil Appeal No. 32 of 1992

5. GROUNDS
5.1 Amir Juma & 15 Others v THA, Misc. civil case No. 37 of 1980, HC at Dar-es-
Salaam
5.2 CCSU v Minister for Civil Service [1985] AC 385
5.3 I.S Msangi v JUWATA & Anor [1992[ TLR 259(AC)
5.4 Mwakibete v Principal Secretary & AG, civil Appeal No.27 of 1992
5.5 Sylvester Cyprian & 210 others v University of Dar-es-Salaam. Misc. civil
Application No. 68 of 1994
5.6 Tanzania Air Services Ltd v Minister of Labour 7 others, Misc. civil case No. 1 of
1995

6. EXERCISE OF DISCRETIONARY POWERS

6.1 Abdi Athuman & 9 others v DC. Tunduru & 3 others Consolidate Misc. civil case
No. 2 & 3 of 1987
6.2 Festo Balegele & 794 others v DSM City Council Misc. civil case No. 90 of 1991
6.3 James Gwagilo v AG, Civil case No. 23 of 1993

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6.4 Mwakibete v Principal Secretary & AG, HC at Arusha, Misc. civil Application
No.11 of 1992
6.5 Shekimweri v AG, Misc. civil case No. 3 of 1996

7. REMEDIES
7.1 Ajit Gordhan v Director of Immigration, Misc. civil case No. 31 of 1991, HC
(DSM)
7.2 Assistant Registrar of Buildings v’ Kibwana 1987 TLR 84 (CA)
7.3 Hamisi Ruhondo & 5 others v TAZARA, Civ Appeal No. 1 of 1986 (CA)
7.4 Kaijage v Esso Standard, Civil Appeal of No. 10 of 1982
7.5 Lausa & 106 others v Minister of Lands & NBC Civil Appeal No. 15 of 1994
(AC)
7.6 M.v Home Office & Anor, [1993] 3 ALLE.R 537
7.7 Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. Civil Appeal No. 3
of 1994 HC at Songea
7.8 Obadiah Saleh v Dodoma Wine, Civ case No. 53 of 1990 HC at Dodoma
7.9 Patman Garments v Tanzania Manufacturer [1981] TLR 303
7.10 Simeon Manyaki v Executive Committee and Council of IMF, Misc. Civil
cause No. 42 of 1984
7.10.1 Vidhyadhar Chavda v Director of Immigration Services Misc. Civil case No.
5 of 1995, HC at DSM

1.1 INTRODUCTION; NATURE AND SCOPE OF JUDICIAL REVIEW.

Shivji .I.G ,Developments in Judicial Review in Mainland Tanzania, Paper
presented in the Judges, Course on Constitutionalism & Human Right, 21.09.1998
– 02.10.1998

1.2 Maharaj v Attorney General of Trinidad & Tobago (No. 2) (1979) AC 385

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A.C Maharaj v. A.G of Trinidad and Tobago (No.2) (P.C)

A. Rookes v. Barnad [1964] A.C. 1129: [1964] 2 W.L.R 269; [1964] 1 All Sirros v.
Moor [1975] Q.B 118; [1974]3 W.L.R 459; [1974] 3 All E.R. 776, C.A.
Wilmington v. Director of Public Prosecutions [1935] A.C 462, H.L. (E.).

The following additional causers were cited in argument:

B Allman v Thorhill (unreported), December 22, 1976, Court of Appeal of Trinidad

and Tobago. Attorney – General v. Antigua Times Ltd. [1976] A.C. 16; [1975] 3
W.LR. 232; [1975] 3 All E.R 81, p.c.
Thompson v. Louisville (1960) 362 U.S. 199

C. APPEAL (No21of 1977) by Ramesh Lawrence Maharaj from the judgment

and order (May 5, 1977) of the Court of Appeal of Trinidad and Tobago
(Hyatali C.J. and Corbin J.A. Philips J.A. dissenting) dismissing his appeal
from and order of Scott J. (July 23, 1975) dismissing his application by notice
of motion on April 17, 1975, to the High Court under section 6 of the
constitution seeking for the contravention and naming the Attorney – General
as respondent.
D. The facts are stated in the judgment of the majority of their Lordships.

David Turner-Samuel Q.C. Fenton Ramsahoye S.C ( of the Trinidad and Tobago Bar)
and William Birtles for the appellant.

The provisions of Chapter 1 of the Constitution dealing with fundamental rights and
freedoms impose a fetter on the exercise by the judiciary of their powers;

E. See Hinds V. The Queen [1977[ A.C. 195, 123. Nothing in the existing law
permitted the procedure adopted in the instant case and there was a
contravention of the due process provisions of sections 1 and 2 of the
Constitution. The framers of the Constitution intended that by virtue of section
6 there should be redress for any contravention by anyone of the fundamental
right and freedoms contained in sections 1 and 2.
F. Section 6 should be construed to give effect to that intention. A declaration
and/or damages would be appropriate redress under section 6; subsection (2)
is an important procedural aspect of the section because a court might think
the Attorney-General a proper party as regards a declaration but not as regards
damages. A Constitutional remedy should not be permitted to fail for want of

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 appropriate respondent, i.e, if in any case the appropriate respondent has not
be joined.
G. A defendant is always entitled to know what offence he is charged with and if
he is not told there is a fundamental failure of due process, see a bare charge
of contempt is not specific enough. As to due process, see Allman v.
Thornhill (unreported), December 22, 1976, de Freitas v Benny [1976] A.C.
239 and Thompson v. Louisville (1960) 362 U.S. 199. “Redress” in section
6 of the Constitution is not a term is not a term of art: for
H. Its ordinary meaning, see The shorter Oxford English Dictionary, 3rd ed.
(1944). The appellant adopts the reasoning in Jaundoo v. Attorney-General of
Guyana [1971] A.C. 972, 982, 983. The word is used in its widest possible
sense and entitles and requires the court to give relief appropriate to particular
circumstances. Although research has not revealed a case where a person
wrongfully sent to prison has obtained damages save for the tort of false
imprisonment, Jaundoo v. Attorney-General of Guyana shows that monetary
compensation is appropriate where there is no other remedy.

The Attorney-General is the appropriated part against whom a plaintiff may bring
proceedings for redress under section 6 of the Constitution. If a plaintiff has a remedy
against, the Attorney-General is the proper part representing the state against whom
the court can award damages.

Note the provisions of the State (formerly Crown) Liability and Proceedings Act
1966. Philips J.A was right in saying that the human rights and fundamental
freedoms declared by section 1 and specifically protected by section 2 of the
Constitution were primarily justifiable against the state. The principle is that
fundamental rights being guaranteed no organ of the state may act in contravention of
them.

The order of Maharaj J. was not the act of an ordinary toreador. It was a state act
performed by the judicial arm of state. The right of an individual to liberty and the
right to be deprived thereof save by due process of law existed before the
commencement of the Constitution but its entrenchment as constitutional right gave it
a new status not only by reason of the formalities required for its abrogation or
abridgment but also as a result of the creation by section 6 of the Constitution of a
new right of redress in respect of contravention which is primarily intended to be
invoked in cases of contravention by the state as opposed to that by private
individuals. Section 6 of the constitution owes its origin to Article 5 (5) of the

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European Convention on Human Rights; see also Attorney-General v. Antigua Times
[1976] A.C. 16. Note that the right to redress in section 6 relates expressly to breaches
of section 1 and 2 of the Constitution. Habeas Corpus only lies if the imprisonment
was an act of the executive: it does not lie against the Governor where the
imprisonment was pursuant to a judge’s order.
Ramsahoye S.C followed

Algernon Wharton Q.C. and Clebert Brooks (both of the Trinidad and Tobago Bar)
and Gerald Davies for the respondent. Scott J. was right that he had no jurisdiction to
entertain the appellant’s motion. Section 6 (1) of the Constitution does not enable a
person in pursuit of the rights and freedoms declared by sections 1 and 2 of the
Constitution to apply for redress to a judge of the High Court from any ruling or
decision established system of justice and to the progressive steps available to a
citizen in pursuit of his legal rights and the right of appeal provided for by the
Judicature Act 1962.

On authority the court should construe a stature away from its too literal terms to
avoid absurdity, confusion or unreasonableness and should have due respect for the
consequences. Such construction must not offend the common sense, objects or
intention of the statute. To construe section 6 narrowly would not deprive the subject
of his right to pursue his constitutional rights: he has a statutory right of appeal to the
Court of Appeal. If a motion under section 6 were founded on an alleged
contravention of sections 1 or 2 of the Constitution by Court of Appeal or the Judicial
Committee of the privy Council it would be even more ludicrous if an aggrieved
person could go for redress to the High Court

A. The Attorney-General was not a proper party to the motion: he was not
involved, nor was the state. To depend on section 13 of the Judicature Act
1962 (No. 12 of 1962) is misleading because there the Attorney-General is
not a party but simply has the right to be informed of the constitutional
issue and in his absolute discretion to join the proceedings as a micas
curiae
B. And not a party . Davies following. “Redress” in section 6 (1) of the
Constitution is to be interpreted narrowly and is qualified by “for the
purpose of Court’s Jurisdiction is limited to making orders by way of
declaration, Injuction (where appropriate because an Injuction cannot
issue against the state) and prerogative order. There is no power to award
damages.
C. Save for powers and duties of the courts other that the High Court or Court
of Appeal conferred by section 6 (3), section 6 gives no new remedy to

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 the individual complaining of breach of constitutional rights. The
individual does not lose anything by this interpretation: he can use the
ordinary procedures to enforce his rights and these can be just as
expeditious as proceedings under section 6. Jaundoo v.
D. Attorney-General of Guyana [1971] A.C 971 supports the respondent’s
submissions. The appellant’s case argued before the Board differs from
that presented below. There the complaints was of the act of a judicial
officer and here it is of the act of an unspecified officer of the executive in
detaining the appellant asserts a right (breach of which is not a tort) which
he did not have before the Constitution came.
E. Into force. The Constitution creates no new rights as opposed to remedies:
see de Freitas v. Benny [1976] A.C 239. even if the opening words of
section 1 of the Constitution creates new right and freedoms which are
not part of the Common Law that does not detract from the arguments on
section 6 and any new rights are enforceable by the normal process.
Section 3 of the Constitution provides that section 1 and 2 shall not
F. Apply in relation to any law in force at the commencement of the
Constitution. By section 105 existing law includes the common law.
Common law deals with public policy. Judicial immunity from the
consequences of an act done in a judicial capacity is an aspect of public
policy. The same immunity extends to officers acting in obedience to a
judge’s order. To hold otherwise would lead to dissatisfied litigants
sidestepping appellate procedure by a collateral action complaining that
G. Their fundamental right and freedoms had been infringed by an executive
officer acting on the order of a judge. A Pandora’s box would be opened:
acts consequent on an order to the High Court or of the Judicial
Committee could be challenged in the High Court. Before the State
Liability and Proceedings Act 1966 in general no action lay against a state
for wrongs committed by its servants. That Act
H. Permitted proceedings in tort but in the instant case no tort is alleged, no
action lies for the act complained of and, ex hypothesis, the Attorney-

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 General cannot be name as a defendant. Turner-Samuels Q.C. in reply.
Section 3 of the Constitution must be read in its context: sections 1 and 2
are subject to section 3 by section 6 is not in consideration redress under
section 6 it is only necessary to look at sections 1 and 2 in order to
discover what the fundamental right and freedoms are. Section 4 (1) of the
Trinidad and Tobago Order in council (1962 S.I. 1875) is relevant in the
construction of section 6. what was done by the judge was unlawful under
existing law and therefore the appellant is entitled to redress under the
Constitution. The fact that redress under section 6 which section 3 does
not apply.

I. The provisions of section 6 as to jurisdiction are clear and unambiguous:

“Redress” is very wide and means redress of a kind known to the law. For
loss of liberty which has already been regained the only redress is
damages: the appellant is not seeking punitive damages but compensation
for the loss of his liberty only. This claim should not be confused with a
personal claim against the judge for damages.

In assessing damages there is no difficulty about special damages. General

damages in cases such as the present are analogous to those for the tort of
wrongful imprisonment and should be assessed on a similar basis and reflect
the injury to the complaint’s self-respect.

That wrongful deprivation of liberty is a breach of the Constitution is also to

be taken into account.
It is difficult to see how some of the fundamental rights and freedoms
guaranteed by Westminster model constitutions could have existed at common
law: see Oliver v Buttigleg [1967] 1 A.C 115.

The court has ample powers to deal with any abuse of process. Section 6 has
provided that the High Court is the proper forum to seed enforcement of the
subject’s constitutional right and he could apply there even for infringement
of them by the Court of Appeal.
Public policy does not require that the state should be immune in respect of
acts of the judicature.

The respondent’s argument on public policy equates this type of action with
an action against the judge is the defendant. It is against the tenor of the policy

9
of the Constitution that there should be differentiation between one arm of the
state and another. Once want of due process and infringement of liberty are
order “redress” section 6 (2) does not cut down section 6 (1): the intention was
to make the available relief as wide as possible. “Enforcement” in section 6
(2) is not uses as a term of art, remedies are cumulative. There would be a
lacuna in the available remedies if damages were not included in redress”
where enforcement is the prescribed remedy in respect of the contravention of
a right and the right is to do or not to have something done, the only way to
“enforce” is to make an order which recognizes the existence of the right.
Curv. Adv.vult.

February 27. The judgment of the majority of their Lordship was delivered by
LORD DIPLOCK.

The unfortunate misunderstanding that resulted in the appellant, a member of

the Bar of Trinidad and Tobago, being committed to seven days’
imprisonment for contempt of court on April 17, 1975, upon the order of
Maharaj J., are narrated in the reasons for judgment deliverer by the Judicial
Committee on October 11, 1976, in the previous appeal to which they have
given rise, Maharaj v. Attorney-General for Trinidad and Tobago [197] 1 all
E.R. 411. that was an appeal against the committal order. It was allowed and
the order of Maharj J. was set aside. The grounds for doing so were that, p.
416:

“ In charging the appellant with contempt, Maharaj J. did not make plain to
him the particulars of the specific nature of the contempt with which he was
being charge. This must usually be done before an alleged contemnor can
properly be convicted and punished (in repelled (1868) L.R. 2 P.C. 106) in
their Lordships’ view, justice certainly demanded that the judge should have
done so in this certainly demanded that the judge should have done so in this
particular case.

Their Lordships are satisfied that his failure to explain that the contempt with
which he intended to charge the appellant was what the judge has described in
his written reasons as ‘a vicious attach on the integrity of the court’ vitiates
the committal for contempt.”

This was finding that the judge, however inadvertently, had failed to observe a
fundamental rule of natural justice; that a person accused of an offence should
be told what he is said to have done plainly enough to give him an opportunity
to put forward any explanation or excused that he may wish to advance.

The question on the instant appeal is whether this constituted a deprivation of

liberty otherwise that by due process of law, within the meaning of section 1
(a) of the Constitution of Trinidad and Tobago of 1962, for which the

10
appellant was entitled to redress by way of monetary compensation under
section 6.

In 1975 there was no right of appeal to the Court of Appeal from an order of a
judge of the High Court finding a person guilty of contempt of the court and
ordering him to be punished for it. An appeal did lie to the Judicial Committee
of the Privy Council but only by special leave of that committee itself. So the
appellant sought an immediate means of collateral attack on the order of
Maharaj J. On the very day of his committal he applied exparte by notice of
motion to the High Court in purported pursuance of section 6 of the
Constitution, claiming redress for contravention of his constitutional rights
under section 1 of the constitution and for a conservatory order for his
immediate release on his own recognizance’s pending the final determination
of his claim. The nature of the redress that he claimed was
-:
(a) a declaration that the order committing him to prison for contempt was
unconstitutional, illegal, void and of no effect;
(b) an order that he be released from custody forthwith; and
(c) an order that damages be awarded him against the attorney General “ for
wrongful detention and false imprisonment;” together with a claim for all such
other orders etc. as might be appropriate. Both the Attorney-General and
Maharaj J. were named as respondents to the notice of motion but only
Attorney-General was served and from the outset the motion has been
proceeded with against him alone.

The exparte application came before Braithwaite J. on April 17, 1975. He

granted the conservatory order; and the appellant was forth with released, after
suffering imprisonment for part of the day.

It is not without interest to note that Braithwaite J. on June 26, 1975, gave
reasons in writing for his decision. In these he expressed the view that upon
the evidence before him, the appellant had made out a prima facie case that
his right under section 1 9a) of the Constitution not to be deprived of his
liberty without due process of law had been contravened.

The substantive motion, however, did not come before Braithwaite J. but
before Scott J. After an intermittent hearing extending over 13 days he
dismissed the motion on July 23, 1975, and ordered the appellant to serve the
remaining six days of his sentences of imprisonment. His ultimate ground for
dismissing it was that the High Court had no jurisdiction under section 6 to
entertain the motion since to do so would, in his view, amount to the exercise

11
by one judge of the High Court. Despite his disclaimer of jurisdiction to
entertain the motion Scott J. did express his own view that the appellant not
only had been guilty of contempt of court but also had been told with
sufficient particularity the nature of the contempt of which he was accused.

From the dismissal of his originating motion the appellant appealed to the
Court of Appeal; but that appeal was not heard until April 1977. In the
meantime he had sought and obtained from the Judicial Committee special
leave to appeal to them against the original order of Maharaj J. committing
him to prison for contempt of court.

By July 1976 this appeal had been heard and determined in his favour by the
Judicial Committee upon the grounds which were stated later in their
judgment of Scott J. on the originating motion came to be decided by the
Court had jurisdiction under section 6 of the Constitution (now section 14 of
the republic Constitution) to grant the appellant redress for an alleged
contravention of his constitutional right resulting from something done by a
judge when acting in his judicial capacity; (2) whether the failure of Maharaj
J. to inform the appellant of the specific nature of the contempt of court with
which he was charged before committing him to prison for it, contravened a
constitutional right of the appellant in respect of which he was entitled to
protect under section 1 (a) of the Constitution (now section 4 (a) of the
republican Constitution); and, if so, (3) whether the appellant was entitled by
way of redress to monetary compensation for the period that he had spent in
prison. All three members of the Court of Appeal (Hyatali C.J. and Corbin
J.A. answered the question (2) “ No”; so for them question (3) did not arise.
Philips J.A., in a dissenting judgment, answered questions 92) and (3) ;Yes”,

From that judgment, by a majority of the Court of Appeal the appellant now
appeals once more to the Judicial Committee. In addressing themselves to the
questions arise it would seem convenient to set out the most important of
those provisions of the Constitution upon which in their Lordships view the
answers turn.

“ whereas the people of Trinidad and Tobago (e) desire that their Constitution
should make provision for ensuring the protection in Trinidad and Tobago of
fundamental human rights and freedoms;

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 “CHAPTER 1

“ THE RECOGNITION AND PROTECTION OF HUMAN RIGHTS

AND FUNDAMENTAL FREEDOMS

“ 1. It is hereby recognized and declared that in Trinidad and Tobago there have existed
and shall continue to exit without discrimination by reason of race, origin, colour,
religion or sex, the following human rights and fundamental freedoms, namely (a) the
right of the individual to life, liberty, security of the person and enjoyment of property,
and the right not to be deprived thereof except by due process of law;.

“2. Subject to the provisions of section 3, 4, and 5 of this Constitution, no law shall
abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of
any of the rights and freedom hereinbefore recognized and declared and in particular no
Act of Parliament shall – (a) authorize or effect the arbitrary detention, imprisonment or
exile of any person; (e) deprive a person of the right to a fair hearing in accordance with
the principles of fundamental justice for the determination of his rights and obligations;

“3. (1) sections 1 and 2 of this Constitution shall not apply in relation to any law that is in
force in Trinidad and Tobago at the commencement of this Constitution.

“6. (1) for the removal of doubts it is hereby declared that if any person alleges that if
any of the provisions of the foregoing section of this Constitution has been, is being, or is
likely to be contravened in relation to him, then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person may apply to the
High Court for redress.
(2) The High Court shall have original jurisdiction – (a) to hear and determine any
application made by any person in pursuance of subsection (1) of this section; and (b) to
determine any question arising in the case of any person which is referred to it in
pursuance of subsection
(3) thereof, and may make such order, issue such writs and give such directions as if may
consider appropriate for the purpose of enforcing, or securing the enforcement of, any of
the provisions of the said foregoing sections or section to the protection of which the
person concerned is entitled. if in any proceedings in any court other that the High Court
of Appeal any question arises as the contravention of any of the provisions of the said
foregoing. Sections or section the person presiding in that court may, and shall if any
party to the proceedings so requests, refer the question to the High Court unless in his
opinion the raisin of the question is merely frivolous or vexation.

(4) Any person aggrieved by any determination of the High Court under this section
may appeal therefrom to the Court of Appeal.

(5) Nothing in this section shall limit the power of Parliament to confer on the High Court
or the Court of Appeal, as the case may be, of its jurisdiction in respect of the matters
arising under this Chapter”.

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Question
(1) Their Lordship can deal briefly with the question of jurisdiction. The notice of motion
and the affidavit in support of the application for the conservatory order for the
immediate release of the appellant pending the final hearing of his claim, made it clear
that he was, inter alia, invoking the original jurisdiction of the High Court under section 6
(2) (a), to hear and determine an application on his behalf for redress for an alleged
contravention of his right under section 1 (a). it is true that in the notice of motion and the
affidavit which, it may be remembered, were prepared with the utmost haste, there are
other claims and allegations some of which would be appropriate to a civil action
against the Crown for tort and other to an appeal on the merits against the committal
order of Maharaj J. on the ground that the appellant had not been guilty of any contempt.
To this extent the application was misconceived. The Crown was not vicariously liable
in tort for anything done Maharaj J. while discharging or purporting to discharge any
responsibilities of a judicial nature vested in him; nor for anything done by the police or
prison officers who arrested and detained the appellant while discharging responsibilities
which they had in connection with the execution of judicial process. Section 4 (6) of the
State ( formerly “ Crown “) Liability and Proceedings Act 1966 so provides. At that time
too there was no right of appeal on the merits against an order of a High Court judge
committing a person to imprisonment for contempt of court, except to the Judicial
Committee by special leave which it alone had power to grant.

Nevertheless, on the face of it the claim for redress for an alleged contravention of his
constitutional rights under section 1 (a) of the Constitution fell within the original
jurisdiction of the High Court under section 6 (2). This claim does not involve any appeal
either on fact or on substantive law from the decision of Maharaj J. that the appellant on
April 17, 1975 was guilty of conduct that amounted to a contempt of court.

What it does involve is an inquiry into whether the procedure adopted by that judge
before committing the appellant to prison for contempt contravened a right, to which the
appellant was entitled under section 1(a) , not to be deprived of his liberty except by due
process of law. Distasteful though the task may well appear to a fellow judge of equal
rank, the Constitution places the responsibility for undertaking the inquiry fairly and
squarely on the High Court.

It was argued for the Attorney-General that even if the High Court had jurisdiction, he is
not a proper respondent to the motion. In their Lordship’s view the Court of Appeal were
right to reject this argument.

The redress claimed by the appellant under section 6 was redress from the Crown (now
the state) for a contravention of the appellant’s constitutional rights by the judicial arm
of the state. By section 19 (2) of the Crown Liability and Proceedings Act 1966, it is
provided that proceedings against the Crown (now the state) should be instituted against
the Attorney-General, and this is not confined to proceedings for tort.

14
Question (2). The structure and the presumptions that underlie chapter 1 of the
Constitutions of Trinidad and Tobago and the corresponding chapters in other
constitutions on the Westminster model that provide for the recognition and
protection of fundamental human rights and freedoms, have been referred to in a
number of previous cases that have come before the Judicial Committee: notably in
Director of Public prosecutions v. Nasralla [1967] 2 A.C 238; Baker V.

The Queen [1975] A.C. 774; and de Freitas v. Benny [1976] A.C. 239. in the first of
these authorities Lord Devlin, speaking for the Board, said of the corresponding
chapter in the Constitution of Jamaica:

“ This chapter proceeds upon the presumption that the fundamental rights which it
covers are already secured to the people of Jamaica by existing law. The laws in force
are not to be subjected to scrutiny in order to see whether or not they conform to the
precise terms of the protective provisions. The object of these provisions is to ensure
that no future enactment shall in any matter which the chapter covers derogate form
the rights which at the coming into force of the Constitution the individual enjoyed”
(p.247)

That the same presumption underlies chapter 1 of the Constitution of Trinidad and
Tobago was stated by the Judicial Committee in de Freitas v Benny [1976] A.C. 239,
244. In section 1 the human rights and fundamental freedoms which it is declared (by
the only words in the section that are capable of being enacting words), “shall
continue to exist” are those which are expressly recognized by the section to “have
existed” in Trinidad and Tobago. So to understand the legal nature of the various
rights and freedoms that are described in the succeeding paragraphs (a) to (k) in
broad terms and in language more familiar to politics that to legal draftsmanship, it is
necessary to examine the extent to which, in his exercise and enjoyment of rights and
freedoms capable of falling within the broad descriptions in the section, the individual
was entitled to protection or non- interference under the law as it is existed
immediately before the Constitution came into effect.

That is the extent of the protection or freedom from interference by the law that
section 2 provides shall not be abrogated, abridged or infringed by any future law,
except as provided by section 4 or section.

What confines section 2 to future laws is that it is made subject to the provisions of
section 3. in view of the breadth of language used in section 1 to describe the
fundamental rights and freedoms, detailed examination of all the laws in force in
Trinidad and Tobago at the time the Constitution came into effect (including the
common law so far as it had not been superseded by written law) might have revealed
provisions which it could plausibility be argued contravened one or other of the rights
or freedoms recognized and declared by section 1. section 3 eliminate the possibility
of any argument on these lines. As was said by the judicial Committee in de Freitas
v. Benny [1976] A.C. 239, 244:

15
“ Section 3 debars the individual from asserting that anything done to him that is
authorized by a law in force immediately before August 31, 1962, abrogates, abridges
or infringes any of the rights or of freedoms recognized and declared in section or or
particularized in section 2”

But section 3 does not legitimize for the purposes of section 1 conduct which
infringes any of the rights or freedoms there described and was not lawful under the
pre-existing law. There was no pre-existing law which authorized that of which
complaint is made in this case: section 3 (1) therefore does not over-ride the
constitutional right of appellant under section 1.

True, he had no remedy, other than appeal for infringement of his right. In so far as
section 6 supplies a remedy where pre-existing law said there was none, section 3 (1)
does not deny it, since it does not refer to section 6. section 6 (1) to which it will be
necessary to revert in grater detail when dealing with question (3), is not expressed to
be subject to section 3. it is general in its terms.

So it applies to any interference with a right or freedom recognized any declared by

section 1, except in so far as that interference would have been lawful under the law
in force in Trinidad and Tobago on August 31, 1962. if it would not have been lawful
under that previously existing law, section 6 crates a new right on the part of the
victim of the interference to claim a remedy for it described as “redress”. This remedy
of “redress” co-exists with any other remedy to which the victim may have been
entitled under the previously existing law.

To revert then to the legal nature of the rights and freedoms described in paragraphs
(a) to (k) of section 1, and, in particular to the question: against whom is the
protection of the individual in the exercise and enjoyment of those rights and
freedoms granted? In his dissenting judgment Philips J.A. said:

“ The combined effect of these section [1,2 and 3] in my judgment, gives rise to
the necessary implication that the primary objective of Chapter 1 of the Constitution
is to prohibit the contravention by the state of any of the fundamental rights or
freedoms declared and recognized by section 1”.

Read in the light of the recognition that each of the highly diversified rights and
freedoms of the individual described in section 1 already existed, it is in their
Lordships’ view clear that the protection afforded was against contravention of those
rights or freedoms by the state or by some other public authority endowed by law
with coercive powers.

The Chapter is concerned with public law, not private law. One man’s freedom is
another man’s restriction; and as regards, infringement by one private individual of
rights of another private individual, section 1 implicitly acknowledges that the
existing law of torts provided a sufficient accommodation between there conflicting

16
rights and freedoms to satisfy the requirements of the new Constitution as respects
those rights and freedoms that are specifically referred to.

Some of the rights and freedoms described in section 1 are of such a nature that for
contraventions of them committed by anyone acting on behalf of the state or some
public authority, there was already at the time of the Constitution an existing remedy,
whether by statute, by prerogative writ or by an action for tort at common law. But
for others, of which “© the right of the individual to respect for his private and family
life” may be taken as examples, all that can be said of them is that at the time of the
Constitution there was no enacted law restricting the exercise by the individual of the
described right or freedom.

The right or freedom existed de facto. Had it been abrogated or abridged de facto by
an executive act of the state there might not necessarily have been a legal remedy
available to the individual at a time before the Constitution came into effect; as, for
instance, if a government servant’s right to join political parties had been curtailed
by a departmental instruction.

Nevertheless, de facto rights and freedoms not protected against abrogation or

infringement by any legal remedy before the Constitution came into effect are, since
that date, given protection which is enforceable de jure under section 6 (1): of Olivier
N. Buttigieg [1967] I. A. 115.

The order of Maharaj J. committing the appellant to prison was made by him in the
exercise of the judicial powers of the state; the arrest and detention of the appellant
pursuant to the judge’s order was effected by the executive arm of the state. So if his
detention amounted to a contravention of his rights under section 1 (a), it was a
contravention by the state against which he was entitled to protection.

Whether it did amount to a contravention depends upon whether the judge’s order
was lawful under the law in force before the Constitution came into effect. At that
time the only law governing contempt of court in Trinidad and Tobago was the
common law; and at common law it had long been settled that

“ … no person should be punished for contempt of court, which is a criminal offence,

unless the specific offence charged against him be distinctly stated, and opportunity
of answering it given to him …” in re Poland (1868) L.R P.C. 106, 120.

That the order of Maharaj J. was unlawful on this ground has already been
determined in the previous appeal; and in their Lordship’s rights under section 1 (a)
not to be deprived of his liberty except by due process of law.

It is true that under the law in force at the coming into effect of the Constitution the
only remedy available to the appellant against an order for committal that was
unlawful on this or any other ground, would have been an appeal to the Judicial
Committee of the Privy Council, by special leave, to have the order set aside. No

17
action in tort would have lain against the police or prison officers who had arrested or
detained him since they would have acted in execution of Judicial process that was
valid on its face; nor would any action have lain against the judge himself for
anything he had done unlawfully while purporting to discharge judicial functions: see
Sirros v. Moore [1975] 1 Q.B 118, in which many of the older authorities are cited.
But sections 1 and 2 are concerned with rights, not with remedies for their
contravention.

Accordingly their Lordships in agreement with Philips J.A would answer question
(2): “Yes; the failure of Maharaj J. to inform the appellant of the specific nature of the
contempt of court with which he was charged did contravene a constitutional rights of
the appellant in respect of which he was entitled to protection under section 1 (a)”.

Question (3) Section 6 (1) and (2) which deal with remedies, could not be wider in
their terms. While section 3 excluded the application of section 1 and 2 in relation to
any law that was s in force in Trinidad and Tobago at the commencement of the
Constitution it does not exclude the application of section 6 in relation to such law the
right to apply the high court to redress “ conferred by section 6 [1] is expressed to be
“without prejudice to another action with respect to the same matter which is lawful
available .” the clear intention to create a new remedy whether there was already
some other existing remedy or not .speaking of the corresponding provision of the
constitution of Guyana ,which is in substantially identical terms, the judicial
committee said in jaundoo v. Attorney-General of Guyana [1971] A.C 72,982:

“To apply to the High Court for redress” was not a term of art at the time the
Constitution was made. It was an expression which was first used in the Constitution
of 1961 and was not descriptive of any procedure which then existed under rules of
Court for enforcing any legal right. It was a newly created right of access to the High
Court to invoke a jurisdiction which was itself newly created. “

As has been already mentioned, in his originated, in his originating motion in High
Court of April 17, 1975, the appellant did allege the provision of section 1 (a) had
been and were being contravened in relation to him.

He was thus entitled under section 6(1) to apply to the High Court for redress, without
prejudice to his right also to pursue his remedy of appealing to the Judicial
committee against the Judge order.

What then was the nature of the “redress” to which the appellant was entitled? Not
being a term of legal art it must be understood as bearing its ordinary meaning, which
in the short Oxford English Dictionary, 3rd ed. 1944 is given as “Reparation of
satisfaction or compensation for, a wrong sustained or the loss putting from this” At
the time of the original of motion the appellant was still in prison. His right not to be
deprived of his liberty excused by due process of law was still being contravened; but
by the time the case reached the court of appeal he had long ago served his seven
ways and had been released.

18
The contravention was in the past; the order practicable form of redress was monetary
compensation. It was argued on behalf of the Attorney-General that section 6 (2)
does not permit of an order for momentary compensation despite the fact that this
kind of an ordered in Jaundoo v. Attorney-General of Guyana. Reliance was placed
up on the reference in the subsection to “enforcing or securing the enforcement of,
any of the provisions of the said following section” as the purpose for which orders
etc., could be made. An order for payment of compensation, it was submitted, did not
amount to the enforcement of the rights that had been contravened.

In their Lordships’ view an order fro payment of compensation when a right

protection under section 1 “has been” contravened is clearly a form of “redress”
which a person is entitled to claim under section 6 (1) and may well be the only
practicable form of redress; as by now it is in the instant case.

The jurisdiction to make such an order is conferred upon the High Court by section 6
(2) (a), viz jurisdiction “to hear that determine any application made by any person in
pursuance of subsection (1) of this section,….. “ The very wide powers to make
orders, issue writs and give directions are ancillary to this.

It has been urged upon their Lordships on behalf of the Attorney-General that so to
decide would be to subvert the long established rule of public policy that a judge
cannot be made personally liable in court proceedings for anything done by him in the
exercise or purported exercise of his judicial functions. it was this consideration
which weighed heavily with Hyatali C.J. and Corbin J.A. in reaching their
conclusion that the appellant’s claim to redress should fail. Their Lordships, however,
think that these fears are exaggerated.

In the first place, no human right or fundamental freedom recognized by Chapter 1 of

the Constitution is contravened by a judgment or order that is wrong and liable to be
set aside on appeal for an error of fact or substantive law, even where the error has
resulted in a person’s serving a sentence of imprisonment.

The remedy for errors of these kinds is to appeal to a higher court. Where there is no
higher court to appeal to then none can say that there was error.

The fundamental human right is not to a legal system that is infallible but to one that
is fair. It is only errors in procedure that are capable of constituting infringements of
the rights protected by section 1 (a); and no more irregularity in procedure is enough,
even though it goes to jurisdiction; the error must amount to a failure to observe on of
the fundamental rules of natural justice.

Their Lordships do not believe that this can be anything but a very rare event. In the
second place, no change is involved in the rule that a judge cannot be made
personally liable for what he has done when acting or purporting to act in a judicial
capacity. The claim for redress under section 6 (1) for what has been done by a judge

19
is a claim against the state for what has been done in the exercise of the judicial
power of the state.

This is not vicarious liability; it is a liability of the state itself. It is not a liability in
tort at all; it is a liability in the public law of the state, not of the judge himself, which
has been newly created by section 6 (1) and (2) of the Constitution. In the third place,
even a failure by a judge to observe one of the fundamental rules of natural justice
does not bring the case within section 6 unless it has resulted, is resulting or is likely
to result, in a person being deprived of life, liberty, security of the person or
enjoyment or property.

It is only in the case of imprisonment or corporal punishment already undergone

before an appeal can be heard that the consequences of the judgment or order
cannot be put right on appeal to an appellate court.

It is true that instead of, or even as well as, pursuing the ordinary course of
appealing to an appellate court, a party to legal proceedings who alleges that a
fundamental rule of natural justice has been infringed in the course of the
determination of his case, could in theory seek collateral relief in an application to the
High Court under section 6 (1) with a further right of appeal to the Court of Appeal
under section 6 (4).

The High Court, however has ample powers, both inherent and under section 6 (2), to
prevent its process being misused in this way; for example, it could stay proceedings
under section 6 (1) until an appeal against the judgment or order complained of had
been disposed of.

Finally, their Lordships would say something about the measure of monetary
compensation recoverable under section 6 where the contravention of the claimant’s
constitutional rights consists of deprivation of liberty otherwise that by due process of
law.

The claim is not a claim in private law for damages for the tort of false imprisonment,
under which the damages recoverable are at large and would include damages for loss
of reputation. It is a claim in public law for compensation for deprivation of liberty
alone. Such compensation would include any loss of earnings consequent on the
imprisonment and recompense for the inconvenience and distress suffered by the
appellant during his incarceration. Council for the appellant has stated that he does
not intend to claim what in a case of tort would be called exemplary or punitive
damages.

This makes it unnecessary to express any view as to whether money compensation by

way of redress under section 6 (1) can ever include an exemplary or punitive award.

For these reasons the appeal must be allowed and the case remitted to the Hight Court
with a direction to asses the amount of monetary compensation to which the appellant

20
is entitled. The respondent must pay the costs of this appeal and of the proceedins in
both courts below.

For these reasons the appeal must be allowed and the case remitted to the High Court
with a direction to assess the amount of monetary compensation to which the
appellant is entitled. The respondent must pay the costs of this appeal and of the
proceedings in both courts below.

LORD HAILSHAM OF SAIT MARYLEBONE delivered the follow owing

dissenting judgment. In this appeal I find, to my great regret, that I cannot concur in
the judgment of the majority.

The proceedings have their origin in an accident the circumstances of which have
already been explored before the Judicial Committee, and are reported sub nominee
Maharaj V. Attorney-General for Trinidad and Tobago in [1977] 1 All E.R. 411; they
therefore do not require to be repeated in detail. Suffice it to say that the present
appellant, a barrister, was committed for seven days on a charge of contempt in the
face of the court by a judge of the High Court of Trinidad and Tobago, a conviction
against which he appealed by special leave. In the result his appeal was allowed and
his conviction set aside on two substantive grounds, the first of which is not, and the
second of which is, relevant to the present appeal.

The first, of great importance to the appellant, but no longer revelant, was that, as I
understand it, on a correct analysis of the facts, he had not in fact committed the
contempt of which he was charged.

The second which is at the heart of the present appeal was, in effect that he had been
deprived of his liberty without due process of law. This was because the judge never
explained to him with sufficient clarity or in sufficient detail the nature and substance
of the contempt of which he stood accuse.

We are clearly bound by the decision in the earlier appeal, and in the present appeal it
was never argued that the proceedings before the committing judge were not a
contravention of the Constitution of Trinidad and Tobago in the form in which it was
then in force.

On the same day as his committal, the appellant commenced the present proceedings
by notice of motion under section 6 of the Constitution (of which more later) and
order 55 of the rules of the court.

They were at first adjourned, but when they came on for hearing were dismissed by
Scott J. on a number of grounds. As a result of Scott J.’s decision the appellant served
his sentence and has therefore been deprived of his liberty for seven days without
redress other than the subsequent declaration of his innocence contained in the
decision of the Judicial Committee above referred to and their conclusion that he had
been convicted without a proper opportunity to defend himself. On appeal from the

21
decision of Scott J., the Court of Appeal (Hyatali C. J. and Corbin J.A., Philips J.A.
dissenting) though different in part from the judge dismissed the appeal and from
their decision the appellate court by virtue of section 109 of the 1976 Constitution of
Trinidad and Tobago.

The notice of motion claims a variety of different types of relief, but, in view of the
events which have supervened, it seems to me that the only one which can do the
appellant substantial service is that in which he claims monetary compensation as
“damages for wrongful detention and false imprisonment.”

The respondent to this appeal is the Attorney-General of Trinidad of Trinidad and

Tobago sued as the representative of the state by virtue of section 19 of the Crown
(now the State) Liability and Proceedings Act 1966. the original notice named in
addition the committing judge, but he was never served with the notice and no
remedy is now sought against him.

Accordingly the only question in this appeal is whether the state is liable to pay
monetary compensation to the appellant. It is common ground between the parties
that any right to compensation which may exist can only arise by virtue of the
Constitution in force at the time of the appellant’s committal. That is the Constitution
of 1962. apart from the enacting sections of the order the revelant provisions are
contained in Chapter 1, sections 1,2,3, and 6, and of these sections 1,3 and 6 are of
critical importance.

The respondent placed in the forefront of his argument two contentions, which I
mention only to dismiss them because I agree entirely with the reasons given by the
majority for their refection.

They were accepted by Scott J., but not by any member of the Court of Appeal. They
were (1) that the High Court in which the proceedings originated, had no jurisdiction
to entertain them and (2) that, in any event, they failed since the Attorney-General
was not an appropriate party. On the assumption (which I make for this purpose) that
the remedy of damages is otherwise available to the appellant against the state, it
appears to me that the Attorney-General is the appropriate party by virtue of section
19 of the Crown (state) Liability and Proceedings may have available, the notice of
motion to the High Court is an appropriate, though not necessarily the only, means of
procedure by virtue of section of 6 the 1962 version of the of the Constitution, and
order 55 of the rules of court.

The case therefore stands or falls entirely upon the availability of a remedy by way of
damages or compensation against the state in respect of the action of the judge in so
far as this was a contravention 1962. since in my opinion such a remedy is not so
available, it would follow that in my view the appeal should be dismissed.

In 1962 Constitution is one of a family of constitutions similar, but not now initial, in
form, enacted for former colonial dependencies of the Crown on their attaining

22
independence, as the result of negotiations and discussions relating to the terms on
which independence should be granted. Many of them (including that of Trinidad
and Tobago) have been amended since independence (sometimes more that once), but
they still retain strong family resemblances.

One of the main features of those constitutions is the enumeration and entrenchment
of certain rights and freedoms. In the 1962 version of the Constitution of Trinidad and
Tobago these, referred to as “human rights and fundamental freedoms”, are contained
in Chapter 1, and, in the words of section 1 of this Chapter include:

“ the rights of the individual to life, liberty, security, security of the person and
enjoyment of property, and the right not to be depraved thereof except by due process
of law”

The nature of theses rights and freedoms and the purposes of their entrenchment has
been discussed more that once in reported cases. They already exist, and the purpose
of the entrenchment is to protect them against encroachment. In a Jamaican case Lord
Devlin put it thus: they proceed.

“ upon the presumption that the fundamental rights…. Are already secured to the
people of Jamaica…. The laws in force are not to be subjected to scrutiny in order to
see whether or not they conform to the precise terms of the protective provisions. The
object of these provisions is to ensure that no future enactment shall in any matter
which the chapter covers derogate from the rights which at the coming into force of
the Constitution the individual enjoyed” per Lord Devlin in Directory of Public
Prosecutions v. Nasralla [1967] 2 A.C. 238, 247,

or, as Lord Diplock put it in de Freitas v. Benny [1976] A.C. 239, referring to the
1962 Constitution of Trinidad and Tobago itself:
“Chapter 1 of the Constitution of Trinidad and Tobago, like the corresponding
Chapter III of the Constitution of Jamaica (see Director of Public Prosecutions v.
Nasralla [1967] 2. A.C. 238), proceeds on the presumption that the human rights and
fundamental freedoms that are referred to in sections 1 and 2 are already secured to
the people of Trinidad and Tobago by the law in force ther at the commencement of
the Constitution’ (p.244.)

the purpose of entrenchment was also described by Lord Diplock in another case
relating to Jamaica (Hinds v. The Queen [1977] A.C. 195, 214) as follows:

“The purpose reserved by this machinery for ‘entrenchment’ is to ensure that those
provisions which were regarded as important safeguards by the political parties in
Jamaica, minority and majority alike, who took part in the negotiations which led up
to the Constitution, should not be altered without mature consideration by the
Parliament and the consent of larger proportion of its member that bare majority
required for ordinary laws”
and again:

23
“the provisions of this Chapter form part of the substantive law of the state and until
amended by whatever special procedure is laid down…. Impose a fetter upon the exercise
by the legislature, the executive, and the judiciary of the plentitude of their respective
powers.” (p.213)

in other words the entrenchment is designed to preserve and protect what already exists
against encroachment, abrogation, abridgement or infringement. It is concerned with
future abuses of authority, usually state authority, and it is largely preoccupied with the
possibility of abuse of authority by the legislature (see section 2), or the executive,
though doubtless as Lord Diplock said it binds also the judiciary and inferior authority,
and presumably also individuals. Except in so far from creating new law, section 1, in
identifying the rights and freedoms entrenched begins with the words:

“ It is hereby recognized and declared that in Trinidad and Tobago there have existed and
shall continue to exist without discrimination by reason of race, origin, colour, religion or
sex, the following human rights and fundamental freedoms….” (emphasis mine)
and section 3 provides
“ Sections 1 and 2 of this Constitution shall not apply in relation to any law that is in
force in Trinidad and Tobago at the commencement of this Constitution”

by the interpretation section (section 105) the expression “law” includes “any unwritten
rule of law” and section 6 (of which more later) related only to proceedings for alleged
contravention of sections 1 and 2 (the second of which is mainly framed to invalidate
legislation which contravenes section 1), and to this extent must be read as subject to
section 3 in so far as this limits the application of section 1 to existing rules of law.

It follows that, in order to construe the meaning and extent of the rights and freedoms
protected by sections 1 and 2 of the Constitution, one must look first at the extent of these
rights as they existed at the date of the commencement of the Constitution. They may be
extended or improved after that date by subsequent acts of the state acting appropriately
through any of its branches. But they are only protected against encroachment in the form
in which they existed at the commencement date.

This applies even to the right to life where the death penalty was in force at the
commencement. Granted due process of law, the right to life is not infringed by judicial
execution (cf. de Freitas v. Benny [1976] A.C 239).

In thus becomes important to discuss in what form the rights to liberty and security of
person and to due process existed in Trinidad and Tobago at the commencement of the
Constitution of 1962, and for this purpose, the extent both of state 9then Crown) and
judicial immunity is relevant. At common law the Crown couldn’t be impleaded at all.
Before the 9United Kingdom) Crown Proceedings Act 1947 (the analogue of which in
Trinidad is the Crown (State) Liability and Proceedings Act 1966, enacted after the
Constitution of 1962) a petition of right would lie against the Crown for certain types of

24
remedy, but only by consent of the Crown signified by the Attorney-General’s fiat
(though in practice this was granted as of course in a proper case).

This immunity from suit was no technicality of procedure. It was part of the prerogative
and universally instead upon. Apart from the petition of right procedure and some
statutory exceptions the Crown was neither liable itself nor vicariously bound to answer
for wrongs committed by its servants.

These servants however, from the highest Minister to the private soldier driving a truck,
were personally liable for their own misdoings, negligence’s and crimes. Superior orders,
even from the sovereign himself,, afforded no excuse or immunity from process civil or
criminal, and although the Crown ordinarily ensured the satisfaction of civil judgments it
did so of grace and not of necessity. A judge, of course, it is not in the ordinary sense a
servant. But he had a further immunity of his own. Judges, particularly High Court
judges, were not, and are not, liable to civil actions in respect of their judicial acts
although, of course, in cases of corruption or criminal misconduct, they have never been
immune from criminal process or impeachment.

This is trite law, and I need do no more than refer to the very full and interesting
discussion on the subject in the Court of Appeal in Sirros v. Moore [1975]

Q.B 118. this civil immunity protected the judge whether he committed a mere error of
law, or, in the case of a High Court judge, and perhaps not only then, if he exceeded his
jurisdiction, or if he committed a breach of natural justice, or, subject to what I have said
about criminal liability, if he acted maliciously or corruptly.

There could therefore be no kind of action against a judge in circumstances like the
present, and the state could not be liable either. It could neither be impleaded itself nor
could it be vicariously liable in respect of a matter for which the principal wrong doer
was not himself liable, and was acting in a judicial capacity and not as servant.

Until the (United Kingdom) Crown proceedings Act 1947 and its analogue in Trinidad
and Tobago of 1966 the right of redress for judicial error was therefore limited to appeal
(if any), and, since the right of appeal by way of rehearing is largely, if not entirely, the
creature of modem statute, was at common law largely confined to technical procedures
like writ of error or motion in arrest of judgment.

In case, like the present, for committal for contempt the right of redress was even more
restricted. In the United Kingdom a general right of appeal was conceded only in 1960. it
seems that in Trinidad (Maharaj v. Attorney-General of Trinidad and Tobago [1977] 1
All E.R. 411) an appeal always lay by special leave to the privy council, and we were told
that a general right of appeal to the Court of Appeal has now been conceded. But apart
form these qualifications, the right of redress in cases of contempt was limited to
application to the committing judge for release, or, presumably, application for a writ of
error for any error for any error on the face of the record. In no case did it extend to
damages. Nor did the legislation of 1947 or 1966 make any relevant difference.

25
True, it admitted actions against the Crown (state) for tort. But judicial error is not a tort,
and the draftsmen of the Act of 1966 were careful to exclude liability whether direct,
personal or vicarious for judicial acts, and the office of judge from the definition of the
servant of the Crown (see section 2 (2) (h) (v) and 4 (6)). There is no reference, of course
to judicial community for acts contravening the entrenched rights and freedoms. But I do
not myself believe that this was because no such immunity existed (as must be the case if
the majority decision in this case be correct).

Personally I find it impossible to believe that, if a right of action for damages in such a
case did exist, as the result of the Constitution of 1962, either against the judge or against
the state, the draftsman of the Act of 1966 would have allowed it to pass sub selentio, and
would not have made express reference to it. At all event what is certain is that no such
right of action against the state or judge was conferred by the Crown (State) Liability and
Proceedings Act 1966.

We now reach the Constitution of 1962 itself. The first sections to construe are sections 1
and 3, and, of these, section 1 is the more important, though I think they are to be ready
together. As I read section 1, it means that the right to liberty and security of person as it
existed at the commencement of the Constitution and therefore in the form in which it is
entrenched did not extend to give a right to damages for unlawful judicial acts, nor, if I
am right in my analysis, did a contravention by a judge of the right of due process give
any such right, I am quite willing to concede that for whatever reason a failure to
formulate a criminal charge including one for contempt correctly was not authorized by
law at the time (which included the Bill of Rights 1688), and that failure to do so would
result in a conviction being set aside on appeal where one was available.

I do not find the expression “due process” (although it is a phrase familiar to English
lawyers at least as far back as the stature 28 Edward 3 c. 3, repeated in the Petition of
Right Act 1627 and the Habeas Corpus Act 1640) any easier to define exhaustively that
have the American courts, but I am very ready to assume that any failure of natural
justice such as conviction by or before a biased, interested, or corrupt tribunal is stuck
down by the prohibition or even that a complete misdirection as to the burden of proof as
in Woolmington v.

Director of Public Prosecutions [1935] A.C 462 would do so, or that repeated
interruptions by a judge if carried too far, might also be affected, since this would disrupt
the conduct of the defense. It so, I can see no reason to exclude a failure sufficiently to
formulate the charge.

Exactly at what stage deprivation of due process fades into mere judicial error I do not
find it easy to say and if I am right it probably never occurred to the framers of the
Constitution to ask themselves this question. The results to the individual can be equally
obnoxious whichever side of the line such errors fall. From the point of view of judicial
integrity, judicial dishonesty is by far the most serious. From the point of view of the
liability of the state to pay compensation, I am not sure that any consideration of public

26
policy justifies these distinctions, logically unassailable as all, or some at least of them,
may be.

What is certain is that if am right it does not matter for the purpose in hand, since neither
class of error gives a right of damages, but if I am wrong and the majority decision
correct, a new and probably unattractive branch of jurisprudence is almost certain to arise
in Trinidad and elsewhere, based on the distinction between those judicial errors which
do, and those which do not, constitute a deprivation of due process of law.

Since it appears to lie at the heart of the argument which has appealed to the majority, the
time has now come to examine the effect of section 6 of the Constitution of 1962. Does it
make any different? Does it grant what had hitherto been withheld, a right to damages in
cases of judicial misbehavior, albeit limited to deprivation of due process? The majority
decision involves an affirmative answer. Section 6 provides:

“6 (1) for the removal of doubts it is hereby declared that if any person alleges that any of
the provisions of the foregoing sections or section of this Constitution has been, is being,
or is likely to contravened in relation to him, then, without prejudice to any other action
with respect to the same matter which is lawfully available, that person may apply to the
High Court shall have original jurisdiction (a) to hear and determine any application
made by any person in pursuance of subsection (1) of this section;…. And may make
such orders, issue such writs and give such directions as it may consider appropriated for
the purpose of enforcing, or securing the enforcement of, any of any of the provisions of
the said foregoing sections or section to the protection of which the person concerned is
entitled … (4) any person aggrieved by any determination of the High Court under this
section Amy appeal therefrom to the Court of Appeal. (5) Nothing in this section shall
limit the power of Parliament to confer on the High Court or the Court of Appeal, such
powers as Parliament may think fit in relation to the exercise by the High Court or the
Court of Appeal, as the case may be, of its jurisdiction in respect of matters arising under
this Chapter”

it is perhaps worth marking that the side note to the whole section reads: “Enforcement of
protective provisions” This is the section which is alleged to have made by necessary
intendment fundamental judges, on servants of the executive acting on a judge’s warrant,
and on the Crown or state, and providing that the state should pay damages in respect of
judicial misconduct, even though the judge himself remains immune, a possibility I
discuss later.

The first comment which I feel myself constrained to make is that I find it more that a
little surprising that a section giving a totally new cause of action against the state
(particularly prior to the enactment of the Crown Liability and Proceedings Act 1966 and
in the light of section 3 set out above) should begin with the somewhat anodyne
expression “for the removal of doubts it is hereby declared” An expression of this kind is
not unusual in Westminster model legislature ,but I must say that if the section be
intended to create a fundamental change in the accepted law of state liability [as it must
be if the appellant’s case and the majority decision be correct]it will be the first time that

27
I have seen this particular phrase used in such a contest, and it is particularly odd, since in
1962 the crown liability and proceedings act had not yet been passed.

The second point is that the section does not at first sight purport to do anything of the
kind. What it purport to do in subsection [1] is to provide a forum and a procedure
independent of any other remedy available for person desiring to secure redress against
contraventions of section 1 and 2. it does not specify the type of relief which maybe
granted in any case. But subsection [2] does give examples, the making of orders, the
issuing of writs, and the giving of directions of the kind of remedy which maybe
available to an applicant seeking redress.

It is by no means obvious, at least from those examples, that a totally new type of action
for damages against the state in respect of action by a high court judge was in the
forefront of the legislatures’ minds, or in their minds at all. I take it the most obvious
construction of subsection [2] is not that it provides new type of relief where none would
otherwise exist, but that it gives the High court power to spell out the legal consequences
of contravention by providing the appropriate orders, where by declaration or otherwise,
to give effect to those consequences whatever they may be.

A great deal of argument necessarily turned on the meaning to be attached to the word
“redress” in section 6 (1) and “enforcement” in section 6 (2). It was contended for the
appellant, and it is accepted by the majority decision, that either or both of these words is
sufficiently wide, or at least sufficient indeterminate in meaning, to include a right to
damages or a direction for the assessment of damages as one of the remedies available to
the High Court.

Not unnaturally the attention of the Board was directed to its decision in Jaundoo v.
Attorney general of the Guyana [1971] A.C. 972, a decision based on the substantially
analogous provisions of the Guyana Constitution. In that case, in allowing the applicant’s
appeal, the Board remitted the motion to the court of first instance with a direction to hear
and determine it on its merits, and, if these were found to be favorable to the applicant, to
assess and give a direction for the payment of damages or compensation.

This it was contended, entirely supports the appellant’s argument in the instant appeal to
the effect that the references in section 6 to “redress” and “enforcement” include, or at
least may include, a right to damages as a form of relief. Though the contrary was
contested strongly on behalf of the respondent, I see no reason to differ from the majority
conclusion in this.

Unhappy, I am unable to see that this disposes of the matter. On the contrary, I find that
Jaundoo’s case aptly illustrates the difficulty that I feel. In Jaundoo’s case the applicant
was seeking redress which would have had the effect of preventing the taking of her
land for the making of a road. At the time of her Application the land had not been
taken. By the time of the appeal to the Privy council, the land had been taken. and the
road built and no compensation paid. But the right to the enjoyment of landed property
is, and for a long time has been, subject to the right of the state to acquire it

28
compulsorily on payment of .compensation .This is part of the statute law of
virtually every civilized country.

An attempt by the executive, or, under a written Constitution, by the legislature, to

acquire compulsorily land without compensation is unlawful, and, if the applicant’s
case in Jaundoo v. Attorney-General of Guyana[1971] A.C. 972 were established, the
act of the executive in doing so, whether or not under the purported authority of a n act of
the legislature contravening the Constitution, would, in the case of a written Constitution
on the models we are discussing ,be a trespass, giving a right to damages at common
laws. at the time of there appeal the lawfulness of the acquisition was not determined and
the case was therefore remitted of the court of first instance of determine of merits.

A necessary consequence of the merits being determined in the applicant’s favour would
have been a right of action for damages against the executive for trespass, that is in an
ordinary action of tort. Since the constitution provide what is intended as a speedy
remedy by way of notice of motions, it was so far as I can see, wholly appropriate for the
board to order compensatory damages as part of the redress in the event of the merits
being determined in favour of the applicant.

In my view it is quite another thing to contend that a section of essentially a procedural

character which embraces the possibility of damages where damages have always been
due [e.g where a trespass has been committed]confers aright of damages against the state
for judicial error where damages have ever been available, and even if available, have not
been available against the state.

I am, of course, not to be understood as suggestion that a notice of motion under section 6
was in appropriate procedure in so far as its privy council. It was not as beneficial to the
appellant, as the appeal to privy council ultimately proved. As the privy council as
Jurisdiction to declare (as the High Court probably would not have had) not merely that
the appellant had been deprived of due process, but that he was actually innocent of the
charge.

I am simply say that, on the view I take, the expression “redress” in subsection (1) of
section 6, and the expression “enforcement” in subsection (2), although capable of
embracing damages where damages are available as part of the legal consequences of
contravention, do not confer, and are not in the context capable of being construed so as
to confer, are right of damages where they have not hitherto being available, in this case
against the state for the judiciary errors of a judge.

This, in my view, must be so even though the judge has being acted as the committing
judge was held to have done in the instant case. Such a right to the damages has never
existed either against the judge or against the state and is not, my option, conferred by
section 6.

The third point I make on the majority construction of section 6 is that, in my view at
least, it proved too much both parties, and, as I understood it, the majority in their

29
conclusion, have shied away from the possibility that damages might equally have been
claimed against the judge personally. But I do not present understand why. If section 1, 2
and 6 of the constitution give a right of action for damages against the state for an action
by the judge in circumstances in which the state would have had absolute immunity prior
to the constitution, it can only be on grounds equally applicable to the judge himself.

Those are that the judge was guilty of a contravention of section 1, that he is not in the
circumstance protection by section 3, that redress under section 6 must include damages
in such a case, and that the prior rule of law giving immunity has in consequence no
application. If this be correct, in order to save the judge’s immunity, further legislation
would be urgently necessary, and, since this would involved an amendment to the
constitution, such legislation might not be particularly easy to obtain.

I must add that I find its difficult to accommodate within the concepts of the law a type of
liability for damages for the wrong of another when the wrongdoer himself is under no
liability at all the wrong itself is not a tort or delict. It was strenuously argued for the
appellant that the liability of the state in the instant case was not vicarious, but some sort
of primary liability.

But I find this equally difficult to understand. It was argued that the state consisted of
three branches, judicial, executive and legislative, and that as one of these branches, the
judicial, had in the instant case contravened the appellant’s constitutional rights, the state
became, by virtue of section 6, responsible in damages for the action of its judicial
branch. This seems a strange and unnatural way of saying that the judge had committed
to prison the appellant who was innocent and had done so without due process of law and
that someone other that the judge must pay for it (in this case the taxpayer).

I could understand a view which said that because he had done so the state was
vicariously liable for this wrongdoing, even though I would have thought it unarguable
(even apart form the express terms of the Crown Liability and Proceedings Act 1966)
that the judge acting judicially is a servant. What I do not understand is that the state is
liable as a principal even thought the judge attracts no liability to himself and his act is
not a tort. To reach this conclusion is indeed to write a good deal into a section which
begins innocently enough with the anodyne words “for the removal of doubts it is hereby
declared.”

If I were at all of the opinion that section 6 did unambiguously confer a right of damages
in circumstances like the present, I would not, of course, be deterred from saying so in
view of any inconveniencies of public policy which might ensue from this conclusion.
But, since I am not of this opinion, I feel that I am entitled to point to some of the
inconveniences which I believe to exits.

In the first place, as I understand the decision of the majority it is that a distinction must
be drawn between a mere judicial error and a deprivation of due process as in the instant
appeal, and that the former would not, and the latter would, attract right of compensation
under the presents decision, even though in each case the consequences were as grave. I

30
have already touched on this. I do not doubt the validity of the distinction viewed as a
logical concept thought the line might be sometimes hard to drawn. But I doubt whether
the distinction, important as it may be intellectually, would be of much comfort to those
convicted as a result of judicial error as distinct from deprivation of due process or would
be understood as reasonable by many members of the public, when it was discovered that
the victim of a contravention of section 1 of the Constitution who would be fully
compensated.

As a result of the majority decision the case will return to the High Court with a direction
to assess damages. I doubt whether their task is as easy as might be supposed. We are
told that this is not a n action of tort. Indeed, if it were, the appellant would be out of
court as the result of the previsions of the Crown (State) Liability and Proceedings Act
1966, already noticed, unless, of course, that Act were itself to be attached as violating
the Constitution quad torts which were also contraventions of the Constitution.

But if it is not a tort, but some something suit generic, the question arises on what
principles are damages to be assessed? Are punitive damages available on the basis of
Rookes v. Barnard [1964] A.C. 1129, 1223, 1224, Broome v. Cassell & Co. Ltd. [1972]
A.C. 1027, 1087, 1134, and if not why not? How far may aggravated damages be
awarded in as much as the judge is not a servant, and the state’s liability is said not to be
vicarious? Are damages to include an element for injured feelings or damage to
reputation? No doubt all these questions are capable of solution, especially if tort is taken
to be a sound analogy. But on what principle is it a sound analogy? At present the sea is
an uncharted one, as no similar case has ever been brought, and the action is not in tort.

There is, of course, nothing in the Constitution of Trinidad and Tobago to prevent the
legislature form improving on the rights and fundamental freedoms quarantined by the
Constitution if they wish to do so and though I might well not be of there number I can
well understand that the members of a legislature inspired by a zeal to the state might
well wish to make such an improvement.

What I venture to question is whether they have done so in Trinidad and Tobago by
section 6 of the Constitution of 1962, and if they have not, as I feel myself constrained to
believe, it would follow that this appeal should be dismissed.

31
2. JURISDICTION AND OUSTER CLAUSES

2.1 Anisminic case

2.2 A.G.V LOHAY AKNONAAY & ANOR CIVIL APPEAL NO.31 OF 1994, CA
2.3 BAWATA 7 5 Others v. Registrar of societies, Misc. Civ. Cause No. 27 of 1997
2.4 DPP v Angelina Ojare, Criminal Appeal No. 21 of 1997, (CA)
2.5 Hamisi Ally Ruhondo & 115 v. TAZARA , Civ. Appeal No. 11986 (C.A)
2.6 In Re: Ministry of Labor (Applicant Joseph Cassian), Misc. Civil Cause No. 14 of
1977, HC at DSM
2.7 Mwanza Restaurant v. Mwanza Municipal Director, Misc. Civ. Cause No.3 of
1987, HC at Mwanza
2.8 OTTU v. Attorney General 7 Anor. Civil Case No. 53 of 1994, HC at Dar-es-
Salaam
2.9 R V Panel on Take-Overs and mergers, ex p Datafin [1987] Q B. 815

In this, Unhappily, I am unable to see that this disposes of the matter on the contrary, I
find that jaundoo
‘s case aptly illustrate the difficulty that I feel. In Jaundoo’s case the applicant was
seeking redress which would have had the effect of preventing the taking of her land for
the making of a road. At the time of her application the land had not been taken . by the
time of the appeal to the privy council, the land had been taken and the road built and no
compensation paid. But the right to the enjoyment of the landed property is, and for along
time has been, subject to the right of the state to acquire it compulsorily on payment of
compensation.

This is part of the statute law of virtually every civilized country. an attempt by the
executive, or, under a written constitution, by the legislature, to acquire compulsorily
land without compensation is unlawful, and, if the applicant’s case in jaundoo v .
attorney- general of Guyana [1971] A.C 972 were established, the act of the executive in
doing so, whether or not under the purported authority of un act of the legislature
contravening the constitution, would, in the case of a written constitution on the models
we are discussing, be a trespass, giving a right to damages at common law.

At the time of the appeal the lawfulness of the acquisition was not determine, and the
case was therefore remitted to the court of first instant to determine the merits .a
consequence of the merits being determined in the applicants

32
‘s favour would have been a right of action for damages against the executive for
trespass, that is in an ordinary action of tort. Since the Constitution provided what was
intended as a speedy remedy by way of notice of motion, it was, so far as I can see,
wholly appropriate for the Board to order compensation damages as part of the redress in
the event of the merits being determined in favour of the applicant. In my view it is
quite another thing to contend that a section of essentially a procedural character which
embraces the possibility of damages where damages have always been due (e.g. where a
trespass has been committed) confers a right of damages against the state for a judicial
error where damages have been available, and even if available, have not been available
against the state.

I am, of course, not to be understood as suggesting that a notice of motion under section 6
was an inappropriate procedure in so far a s it claims a declaration. It was in fact an
alternative to the appeal to the Privy Council ultimately proved, as the Privy Council has
jurisdiction to declare (as the High Court probably would not have had) not merely that
the appellant had been deprived of due process, but that he was actually innocent of the
charge. I am simply saying that, on the view I take, the expression “redress” in
subsection (1) of section 6, and the expression “ enforcement” in subsection (2), although
capable of embracing damages where damages are available as part of the legal
consequences of contravention, do not confer and are not in the context capable of being
construed so as to confer, a right of damages where they have not hitherto being
available, in this case against the state for the judicial errors of a judge.

This, in my view, must be so even though the judge has acted as the committing judge
was held to have done in the respect of judicial misconduct, even though the judge
himself remains immune, a possibility I discuss later. The first comment which I feel
myself constrained to make is that I find it more that a little surprising that a section
giving a totally new cause of action against the state (particularly prior to the enactment
of the Crown Liability and proceedings Act 1966 and in the light of section 3 set out
above) should begin with the somewhat anodyne expression “for the removal of doubts it
is hereby declared” An expression of this kind is not unusual in Westminster model
legislation, but I must say that if the section be intended to create a fundamental change
in the accepted law of state liability (as it must be if the appellant’s case and the majority
decision be correct) it will be the first time that I have seen this particular phrase used in
such a context, and it is particularly odd, since in 1962 the Crown Liability and
Proceedings Act had not yet been passed.

The second point is that the section does not at first sight support to do anything of the
kind. What it purports to do in subsection (1) is to provide a forum and a procedure
independent of any other remedy available for persons desiring to secure redress against
contraventions of section 1 and 2. it does not specify the type of relief which may be
granted in any one case. But subsection (2) does give examples, the making of orders, the
issuing of writs, and the giving of directions, of the kind of remedy which may be
available to an applicant seeking redress.

33
It is by no means obvious, at least from these examples, that a totally new type of action
for damages against the state in respect of actions by a High Court judge was in the
forefront of the legislator’s minds, or in their minds at all. I take it that the most obvious
construction of subsection (2) is not that it provides new types of relief where none would
otherwise exist, but that it gives the High Court power to spell out the legal consequences
of contravention by providing the appropriate orders, whether by declaration or
otherwise, to give effect to those consequences whatever they may be.

A great deal of argument necessarily turned on the meaning to be attached to the word
“redress” in section 6 (1) and “enforcement” in section 6 (2). It was contended for the
appellant, and it is accepted by the majority decision, that either or both of these words is
sufficiently wide, or at least sufficiently in determinate in meaning, to include a right to
damages or a direction for the assessment of damages as one of the remedies available to
the High Court. Not unnaturally the attention of the Board was directed to its decision in
Jaundoo v. Attorney- General of Guyana [1971] A.C. 972, decision based on the
substantially analogous provisions of the Guyana Constitution. In that case, in allowing
the applicant’s appeal, the Board remitted the motion to the court of first instance with a
direction to hear and determine it on its merits and, if these were found to be favorable to
the applicant, to assess and give a directing for the payment of damages or compensation.
This, it was contended, entirely supports the appellant’s argument in the instant appeal to
the effect that the references in section 6 to “redress” and “enforcement” include, or at
least may include, a right to damages as a form of relief. Though the contrary was
contested strongly on behalf of the respondent, I see no reason to differ from the majority
conclusion also be affected, since this would disrupt the conduct of the defense.

If so, I can see no reason to exclude a failure sufficiently to formulate the charge.
Exactly at what stage deprivation of due process fades into mere judicial error I do not
find it easy to say and if I am might it probably never occurred to the framers of the
Constitution to ask themselves this question. The results to the individual can be equally
obnoxious whichever side of the line such errors fall.

From the point of view of judicial integrity, judicial dishonesty is by far the most serious.
From the point of view of the liability of the state to pay compensation, I am not sure that
any consideration of public policy justifies these distinctions, logically unassailable as
all, or some at least of them, may be.

What is certain is that if I am right it does not matter for the purpose in hand, since
neither class of error gives a right of damages, but if I am wrong and the majority
decision correct, a new, and probably unattractive branch of jurisprudence is almost
certain to arise in Trinidad and elsewhere, based on the distinction between those judicial
errors which do, and those which do not constitute a deprivation of due process of law.

Since it appears to lie at the heart of the argument which has appealed to the majority, the
time has now come to examine the effect of section 6 of the Constitution of 1962. Does it
make any difference? Does it grant what had hitherto been withheld, a right to damages

34
in cases of judicial misbehavior, albert limited to deprivation of due process? The
majority decision involves an affirmative answer. Section 6 provided:

“6 (1) for the removal of doubts it is hereby declared that if any person alleges that any of
the provisions of the foregoing sections or section of this Constitution has been, is being,
or is likely to be contravened in relation to him, then, without prejudice to any other
action with respect to the same matter which is lawfully available, that person may apply
to the High Court shall have original jurisdiction (a) to hear and determine any
application made by any person in pursuance of subsection (1) of this section;.. and may
make such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing, or securing the enforcement of, any of the
provisions of the said foregoing section or section to the protection of which the person
concerned is entitled …. (4) any person aggrieved by any determination of the High
Court under this section may appeal there from to the Court of appeal. (5) nothing in this
section shall limit the power of Parliament to confer on the High Court or the Court of
appeal, such power of Parliament to confer on the High Court or the Court of Appeal,
such powers as Parliament may think fit in relation to the exercise by the High Court or
the Court of Appeal, as the case may be, of its jurisdiction in respect of matters arising
under this Chapter”.

It is perhaps worth remarking that the side note to the whole section reads: “Enforcement
of protective provisions.” This is the section which is alleged to have made by necessary
intendment fundamental changes in the long standing rules of law conferring immunity
on the judges, on servants of the executive acting on a judge’s warrant, and on the Crown
or state, and providing that the state should pay damages in procedures like writ of error
or motion in arrest of judgment. In case, like the present, for committal for contempt the
right of appeal was conceded only in 1960.

It seems that in Trinidad (Maharaj v. Attorney-General of Trinidad and Tobago [1977] 1

All E.R. 411) an appeal always lay by special leave to the Privy Council, and we were
told that a general right of appeal has now been conceded. But, apart form these
qualifications, the right of redress in cases of contempt was limited to application to the
committing judge for release, or, pre-record.

In no case did it extend to damages. True, it admitted action against the Crown (State)
for tort. But judicial error is not a tort, and the draftsmen of the act of 1966 were carefully
to exclude liability whether direct ,personal or vicarious for judicial act, and the office of
judge from the definition of servant of the crown (see section 2 (2) (h) (v) and 4(6). there
is no reference, of course, to judicial immunity for acts contravening the entrenched right
and freedom. But I do not myself believe that this was because no such immunity existed
(as must be the case if the majority decision in this case be correct).

Personally I find it impossible to believe that, if a right of action for damages in such a
case did exist, as the result of the constitution of 1962, either against the judge or against
the state, the draft man of the act of 1966 would have allowed it to pass silentio, and
would not have made express reference to it. At all events, what is certain is that no such

35
right of action against the state of a judge was conferred by the crown (state)liability and
proceedings Act 1966.

We now reach the constitution of 1962 itself. The first sections to construe are section 1
and 3, and, of this , section 1 is the more important, though I think they are to be read
together. As I read section 1 it means that the right to liberty and security of person as it
existed at the commencement of the constitution and therefore in the form in which it is
entrenched did not extend to give a right to damages to lawful judicial act, nor, if I am
right in my analysis, did a contravention by a judge of the right of due process give any
such rights.

I am quite willing to concede that for whatever reasons a failure to formulate a criminal
charge including one for contempt correctly was not authorized by law at the time (which
included bill of rights 1688), and that failure to do so would result in a conviction being
set aside on appeal where one is available. I do not find the expression “due process”
(although it is a phrase familiar to English lawyers at least as far back as the statute 28
Edward 3 c. 3, repeated in the petition of right Act 1627 and the Habeas Corpus Act
1640) any easier to define exhaustively than have the American Courts, but I am very
ready to assume that any failure of natural justice such as conviction by or before a
biased, interested or corrupt tribunal is struck down by the prohibition or even that a
complete misdirection as to the burden of proof as in Woolmington v. Director of Public
Prosecutions. [1935] A.C. 462 would do so, or that repeated interruption by a judge if
carried too far, might appropriately though any of its branches.

But they are only protected against encroachment in the form in which they existed at the
commencement date. This applies even to the right to life where the death penalty was in
force at the commencement. Granted due process of law, the right to life is not infringed
by judicial execution (cf.de Freitas v. Benny [1976] A.C. 239)

It thus becomes important to discuss in what form the rights to liberty and security of
person and to due process existed in Trinidad and Tobago at the commencement of the
Constitution of 1962, and for this purpose, the extent both of state (then Crown) and
judicial immunity is relevant. At common law the Crown could not be impleaded at all.
Before the (United Kingdom) Crown Proceedings Act 1947 (the analogue of which in
Trinidad is the Crown (State) Liability and Proceedings Act 1966, enacted after the
Constitution of 1962) a petition of right would lie against the Crown for certain type of
remedy, but only consent of the Crown signified by the Attorney-General’s fiat (though
in practice this was granted as of course in a proper case).

This immunity from suit was no technicality of procedure. It was part of the prerogative
and universally instead upon. Apart from the petition of right procedure and some
statutory exceptions the Crown was neither liable itself nor vicariously bound to answer
for wrongs committed by its servants. These servants however, from the highest Minister
to the private soldier driving a truck, were personally liable for their own misdoings,
negligence’s and crimes. Superior orders, even from the sovereign himself, afforded no
excuse or immunity from process civil or criminal, and although the Crown ordinarily
ensured the satisfaction of civil judgment it did so or grace and not of necessity. A judge,

36
of course, is not in the ordinary sense a servant. But he had a further immunity of his
own. Judges, particularly High Court judges, were not, and are not, liable to civil actions
in respect of their judicial acts, although, of course, in cases of corruption or criminal
misconduct, they have never been immune from criminal process or impeachment.

This is trite law, and I need do not more that refer to the very full and interesting
discussion on the subject in the Court of Appeal in Sirros v Moore [1975] Q.B. 118. this
civil immunity protected the judge whether he committed a mere error of law, or, in the
case of a High Court judge, and perhaps not only then, if he exceeded his jurisdiction, or
if he committed a breach of natural justice, or subject to what I have said about criminal
liability, if he acted maliciously corruptly. There could therefore be no kind of action
against a judge in circumstances like the present, and the state could not be liable either.
It could neither be impleaded itself nor could it be vicariously liable in respect of a matter
for which the principal wrong doer was not himself liable, and was acting in a judicial
capacity and not as a servant.

Until the (United Kingdom) Crown Proceedings Act 1947 and its analogue in Trinidad
and Tobago of 1966 the right of redress for judicial error was therefore limited to appeal
(if any), and, since the right of appeal by way of rehearing is largely, if not entirely, the
creature of modern stature, was common law largely confined to technical.

The purpose of entrenchment was also described by Lord Diplock in another case relating
to Jamaica (Hinds v. The Queen [1977] A.C. 195, 214) as follows:

“The purpose served by this machinery for ‘entrenchment’ is to ensure that those
provisions which were regarded as important safeguards by the political parties in
Jamaica, minority and majority alike, who took part in the negotiations which led up to
the Constitution, should not be altered without mature consideration by the Parliament
and the consent of a larger proportion of its members that the bare majority required for
ordinary laws.”

And again:

“The provisions of this Chapter form part of the substantive law of the state and until
amended by whatever special procedure is laid down…. Impose a fetter upon the exercise
by the legislature, the executive, and the judiciary of the plenitude of there respective
powers.” (p.213.)

In other words the entrenchment is designed to preserve and protect what already exists
against encroachment, abrogation, abridgement or infringement. It is concerned with
future abuses of authority, and it is largely preoccupied with the possibility of abuse of
authority by the legislature (see section2), or the executive, though doubtless as Lord
Diplock said it binds also the judiciary and inferior authority, and presumably also
individuals. Except in so far as it protects against future abuse, entrenchment does not
purport to alter existing law.

That this is so clear from the Constitution itself. So far from creating new law, section 1,
in identifying the rights and freedoms entrenched begins with the words:

37
“It is hereby recognized and declared that in Trinidad and Tobago there have existed and
shall continue to existed and shall continue to exist without discrimination by reason of
race, origin, colour, religion or se, the following human rights and fundamental
freedoms……..” (emphasis mine) and section 3 provides

“Section 1 and 2 of this Constitution shall not apply in relation to any law that is in force
in Trinidad and Tobago at the commencement of this Constitution.”

By the interpretation section (section 105) the expression “law” includes “any unwritten
rule of law” and section 6 (of which more later) relates only to proceedings for alleged
contravention of sections 1 and 2 (the second of which is mainly framed to invalidate
legislation which contravenes section 1), and to this extent must be read as subject to
section 3 in so far as this limits the application of section 1 to existing rules of law. It
follows that, in order to construe the meaning and extent of the rights and freedoms
protected by sections 1 and 2 of the Constitution, one must look first at the extent of these
rights as they existed at the date of the commencement of the Constitution.

They may be extended or improved after that date by subsequent acts of the state acting
6 of the 1962 version of the Constitution, and orders 55 of the rules of court. The case
therefore stands or falls entirely upon the availability of a remedy by way of damages or
compensation against the state in respect of the action of the judge in so far as this was a
contravention of the entrenched rights of freedoms guaranteed by the Constitution of
1962. since in my option such a remedy is not so available, it would follow that in my
view the appeal should be dismissed.

The 1962 Constitution is one of a family of constitutions similar, but not now identical, in
form, enacted for former colonial dependencies of the Crown on their attaining
independence, as the result of negotiations and discussions relating to the terms on which
independence should be granted. Many of them (including that of Trinidad and Tobago)
have been amended since independence (sometimes more than once), but they still retain
strong family resemblances. One of the main features of those constitutions is the
enumeration and entrenchment of certain rights and freedoms. In the 1962 version of the
Constitution of Trinidad and Tobago these, referred to as “human rights and fundamental
freedoms”, are contained in Chapter 1, and in the words of section 1 of this chapter
include:

“the right of the individual to life, liberty, security of the person and enjoyment of
property, and the right not to be deprived thereof except by due process of law”

The nature of these rights and freedoms and the purpose of their entrenchment has been
discussed more that once in reported cases. The first point to observe is that they do not
claim to be new. They already exist, and the purpose of the entrenchment is to protect
them against encroachment. In a Jamaica case Lord Devlin put it thus: they proceed

“upon the presumption that the fundamental rights….. are already secured to the people
of Jamaica……the laws in force are not to be subjected to scrutiny in order to see
whether or not hey conform to the precise terms of the protective provisions. The object

38
of these provisions is to ensure that no future enactment shall in any matter which the
chapter covers derogate from the rights which at the coming into force of the Constitution
the individual enjoyed,” per Lord Devlin in Director of Public Prosecutions v. Nasralla
[1967] 2 A.C. 238, 247,

or, as Lord Diplock put it in de Freitas v. Benny [1976] A.C. 239, referring to the 1962
Constitution of Trinidad and Tobago itself:

“Chapter 1 of the Constitution of Trinidad and Tobago, like the corresponding Chapter III
of the Constitution of Jamaica (see Director of Public Prosecutions v. Nasralla [1967] 2.
A.C. 238), proceeds on the presumption that the human rights and fundamental freedoms
that are referred to in sections 1 and 2 are already secured to the people of Trinidad and
Tobago by the law in force there at the commencement of the Constitution.” (p. 244.) and
in the present appeal it was never argued that the proceedings before the committing
judge were not a contravention of the Constitution of Trinidad and Tobago in the form in
which it was then in force.

On the same day as his committal, the appellant commencement the present proceedings
by notice of motion under section 6 of the Constitution (of which more later) and order
55 of the rules of court. They were at first adjourned, but when they came on for hearing
were dismissed by Scott J., the Court of Appeal (Hyatali C. J. and Corbin J. A., Phillips
J.A. dissenting) though differing in part from the judge dismissed the appeal and from
their decision the appellant now appeals, by leave, to their Lordships acting as the now do
as an appellate court by virtue of section 109 of the 1976 Constitution of Trinidad and
Tobago.

The notice of motion claims a variety of different types of relief, but, in view of the
events which have supervened, it seems to me that the only one which can do the
appellant substantial service is that in which he claims monetary compensation as
“damages for wrongful detention and false imprisonment”.

The respondent to this appeal is the Attorney-General of Trinidad and Tobago sued as the
representative of the state by virtue of section 19 of the Crown (now the State) Liability
and Proceedings Act 1966.the original notice named in addition the committing judge,
but he was never served with the notice and no remedy is now sought against him.
According the only question in this appeal is whether the state is liable to pay monetary
compensation to the appellant. It is common ground between the parties that any right to
compensation which are exist the Constitution in force at the time of the appellant’s
committal.

That is the Constitution of 1962. Apart from the enacting sections of the order the
relevant provisions are contained in Chapter 1, sections 1, 2, and 6, and of these sections
1, 3 and 6 are of critical importance. The respondent placed in the forefront of his
argument two contentions, which I mention only to dismiss them because I agree entirely
with the reasons given by the Majority for their rejection. They were accepted by Scott J.,
but not by any member of the Court to Appeal.

39
They were (1) that the Height Court in which the proceedings originated, had no
jurisdiction to entertain them and (2) that, in any event, they failed since the Attorney-
General was not an appropriate party. On the assumption which I make for this purpose)
that the remedy of damages is otherwise available to the appellant against the state, it
appears to me that the Attorney –General is the appropriate party by virtue of section 19
of the Crown (State) Liability and Proceedings Act 1966, and that whatever other
proceedings may have been available, the notice of motion to the High Court is an
appropriate, though not necessarily the only, means of procedure by virtue of section
justice has been infringed in the course of the determination of his case, could in theory
seek collateral relief in an application to the High Court under section 6 (1) with a further
right of appeal to the Court of Appeal under section 6 (4). The High Court, however, has
ample powers, both inherent and under section 6 (2), to prevent its proceeds being
misused in this way; for example, it could stay proceedings under section 6 (1) until an
appeal against the judgment or order complained of had been disposed of.

Finally, their Lordships would say something about the measure of monetary
compensation recoverable under section 6 where the contravention of the claimant’s
constitutional rights consist of deprivation of liberty otherwise that by due process of law.
The claim is not a claim in private law for damages for the tort of false imprisonment,
under which the damages recoverable are at large and would include damages for loss of
reputation. It is a claim in public law for compensation for deprivation of liberty alone.
Such compensation would include any loss of earnings consequent on the imprisonment
and recompense for the inconvenience and distress suffered by the appellant during his
incarceration. Counsel for the appellant has state that he does not intend to claim what in
a case of tort would be called exemplary or punitive damages. This makes it unnecessary
to express any view as to whether money compensation by way of redress under section
6 (1) can ever include an exemplary or punitive award.

For these reasons the appeal must be allowed and the case remitted to the High Court
with a direction to assess the amount of monetary compensation to which the appellant is
entitle. The respondent must pay the consists of this appeal and of the proceedings in both
courts below.

LORD HAILSHAM OF SAINT MARYLEBONE delivered the following dissenting

judgment. In this appeal I find, to my great regret, that I cannot concur in the judgment of
the majority. The proceedings have their origin in an incident the circumstances of which
have already been explored before the Judicial Committee, and are reported sub nominee
Maharaj v. Attorney-General for Trinidad and Tobago in [1977] 1 All E.R. 411; they
therefore do not require to be repeated in detail. Suffice it to say that the present
appellant, a barrister, was committed for seven days on a charge of contempt in the face
of the court by a judge of the High Court of Trinidad and Tobago, a conviction against

40
 which he appealed by special leave. In the result his appeal was allowed and his
conviction set aside on two substantive grounds, the first of which is not, and the second
of which is, relevant of the present appeal. The first, of great importance to the appellant,
but no longer relevant, was that, as I understand it, on a correct analysis of the facts, the
had not in fact committed the contempt of which he was charged. The second which is at
the heart of the present appeal was, in effect, that he had been deprived of his liberty
without due process of law. This was because the judge never explained to him with
sufficient clarity or in sufficient detail the nature and substance of the contempt of which
he stood accused. We are clearly bound by the decision in the earlier appeal, the purpose
for which orders etc., could be made. An order for payment of compensation, it was
submitted, did not amount to the enforcement of the rights that had been contravened. In
their Lordships’ an order for payment of compensation when a right protected under
section 1 “has been” contravened is clearly a form of “redress” which a person is entitled
to claim under section 6 (1) and may well be the only practicable form of redress; as by
now it is in the instant case. The jurisdiction to make such an order is conferred upon the
High Court by section 6 (2) (a), viz, jurisdiction “to hear and determine any application
made by wide powers to make orders, issue writs and give directions are ancillary to this,
it has been urged upon their Lordships on behalf of the Attorney-General that so to
decide would be to subvert the long established rule of public policy that a judge cannot
be make personally or purported exercise of his judicial functions. It was this
consideration which weighed heavily with Hyatali C.J. and Corbin J. A. in reaching their
conclusion that the appellant’s claim to redress should fail. Their Lordships, however,
think that these fears are exaggerated.

In the first place, no human right or fundamental freedoms recognized by Chapter I of the
Constitution is contravened by a judgment or order that is wrong and liable to be set aside
on appeal for an error of fact or substantive law, even where the error has resulted in a
person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to
appeal to a higher court. Where there is no higher court to appeal to then none can say
that there was error. The fundamental human right is not to a legal system that is

41
 infallible but no one that is fair. it is only errors in procedure that are capable of
constituting infringements of the rights protected by section 1 (a); and no more
irregularity I procedure is enough, even though it goes to jurisdiction; the error must
amount to a failure to observe one of the fundamental rules of natural justice. Their
Lordships do not believe that this can be anything but a very rare event. In the second
place, no change is involved in the rule that a judge cannot be made personally liable for
what he has done when acting or purporting to act in a judicial capacity. The claim for
redress under section 6 (1) for what has been done by a judge is a claim against the state
for what has been done in the exercise of the judicial power of the state. This is not
vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a
liability in the public law of the state, not of the judge himself, which has been newly
created by section 6 (1) and (2) of the Constitution. In the third place, even a failure by a
judge to observe one of the fundamental rules of natural justice does not bring the case
within section 6 unless it has resulted, is resulting or is likely to result, in a person being
deprived of life, liberty, security of the person or enjoyment of property. It is only in the
case of imprisonment or corporal punishment already undergone before an appeal can be
heard that the consequences of the judgment or order cannot be put right on appeal to an
appellate court. It is true that instead of, or even as well as, pursuing the ordinary course
of appealing directly to an appellate court, a party to legal proceedings who alleges that a
fundamental rule of natural judicial function; see sirros v. Moore [1975] 1 Q.B. 118, in
which many of the older authorities are cited. But sections 1 and 2 are concerned with
rights, not with remedies for their contravention.

Accordingly their Lordships in agreement with Phillips J.A. would answer question (2):
“Yes; the failure of Maharaj J. to inform the appellant of the specific nature of the
contempt of court with which he was charged did contravene a constitutional right of the
appellant in respect of which he was entitle to protection under section 1 (a)”

Question (3) section 6 (1) and (2) which deal with remedies, could not be wider in their
terms. While section 3 exclude the application of sections 1 and 2 in relation to any law
that was in force in Trinidad and Tobago at the commencement of the Constitution it

42
does not exclude the application of section 6, in relation to such law. The right to “apply
to the High Court for redress” conferred by section 6 (1) is expressed to be “without
prejudice to any other action with respect to the same matter which is lawfully
available.” The clear intention to create a new remedy whether there was already some
other existing remedy or not. Speaking of the corresponding provision of the Constitution
of Guyana, which is in substantially identical terms, the Judicial Committee said in
Jaundoo v. Attorney-General of Guyana [1971] A.C 972, 982:

“To ‘apply to the High Court for redress’ was not a term of art at the time the
Constitution was made. It was an expression which was first used in the Constitution of
1961 and was not descriptive of any procedure which then existed under rules of Court
for enforcing any legal right. It was a newly created right of access to the High Court to
invoke a jurisdiction which was itself newly created ….”

As has been already mentioned, in his originating motion in the High Court of April 17,
1975, the appellant did allege that the provisions of section 1(a) had been and wer being
contravened in relation to him. He was thus entitled under section 6 (1) to apply to the
High Court for redress, without prejudice to his right also to put his remedy of appealing
to the Judicial Committee against the judge order.

What then was the nature of the “redress” to which the appellant was entitled? Not being
a term of legal art it must be understood as bearing its ordinary meaning, which in the
show Oxford English Dictionary, 3rd ed. 1944 is given as: Reparation of, satisfaction or
compensation for, a wrong sustained or the loss resulting form this.” At the time of the
original notice of motion the appellant was still in prison. His right not to be deprived of
his liberty exceed by due process of law was still being contravened; but by the time the
case reached the Court of Appeal he had long ago served his seven days and had been
released. The contravention was in the past; the other practicable form of redress was
monetary compensation. It was argue on behalf of the Attorney-General that section 6 (2)
does not permit of an order for monetary compensation despite the fact that this kind of
redress was ordered in Jaundoo v. Attorney-General of Guyana. Reliance was placed

43
upon the reference in the subsection to “enforcing or securing the enforcement of, any of
the provision of the said for sections” as the requirements of the new Constitution as
respects those right and freedoms that are specifically referred to.

Some of the rights and freedoms described in section 1 are of such a nature that for
contraventions of them committed by anyone acting on behalf of the state or some public
authority, there was already at the time of the Constitution an existing remedy, where by
stature, by prerogative writ or by an action for tort at common law. But for others, of
which “© the right of the individual to respect for his private and family life” may be
taken as examples, all that can be said of them is that at the time of the Constitution there
was no enacted law restricting the exercise by the individual of the described right or
freedom. The right or freedom existed de facto. Had it been abrogated or abridged de
facto by an executive act of the state there might not necessarily have been a legal
remedy available to the individual at the time before the constitution came into effect; as,
for instance, if a government servant’s right to join political parties had been curtailed by
a departmental instruction. Nevertheless, de facto rights and freedoms not protected
against abrogation or infringement by any legal remedy before the constitution came into
effect are, since that date, given protection which is enforceable de jure under section
6(1): cf. Oliver v. Buttigieg [1967] 1. A.C. 115.

The order of Maharaj J. committing the appellant to prison was made by him in the
exercise of the judicial powers of the state; the arrest and detention of the appellant
pursuant to the judge’s order was effected by the executive arm of the state. So if his
detention amounted to contravention of his right under section 1 (a), it was a
contravention by the state against which he was entitle to protection. Whether id did
amount to contravention depends upon whether the judge’s order was lawful under the
law in force before the constitution came into effect. At that time the only law governing
contempt of court in Trinidad and Tobago was the common law; and at common law it
had long been settled that

44
“………no person should be punished for contempt of court, which is a criminal offence,
unless the specific offence charged against him distinctly stated, and an opportunity of
answering it given to him …” In re Pollard (1868) L.R. 2 P.C 106, 120.

That the order of Maharaj J. was unlawful on this ground has already been determined in
the previous appeal; and in their Lordships’ view it clearly amounted to a contravention
by the state of the appellant’s rights under section 1 (a) not to be deprived of his liberty
except by due process of law.

It is true that under the law in force at the coming into effect to the constitution the only
remedy available to the appellant against an order for committal that was unlawful on this
or any other ground, would have been an appeal to the Judicial Committee of the Privy
Council, by special leave, to have the order set aside. No action in tort would have lain
against the police or prison officers who had arrested or detained him since they would
have acted in execution of judicial process that was valid on its face; nor would any
action have lain against the judge himself for anything he had done unlawfully while
purporting to discharge it could plausibly be argued contravened one or other of the
rights or freedoms recognized and declared by section 1. section 3 eliminates the
possibility or any arguments on these line. As was said by the Judicial Committee in de
Freitas V. Benny [1976] A.C 239, 244;

“Section 3 debars the individual from asserting that anything done to him that is
authorized by a law in force immediately before August 31, 1962, abrogates, abridges or
infringes any of the rights of freedoms recognized and declared in section of
particularized in section 2”

But section 3 does not legitimize for the purposes of section 1 conducts which infringes
any of the rights or freedoms there described and was not lawful under the pre-existing
law. There was no pre-existing law which authorized that of which complaints is made in
this case: section 3 (1) therefore does not over-ride the constitutional rights of the
appellant under section 1. True, he had no remedy, other that appeal for infringement of

45
 his right. In so far as section 3 (1) does not deny it, since it does not refer to section 6.
Section 6 (1), to which it will be necessary to revert in greater detail when dealing with
question (3), is not expressed to be subject to section 3. it is general in its terms. So it
applies to any interference with a right or freedom recognized and declared by section 1,
except in so far as that interference would have been lawful under the law in force in
Trinidad and Tobago on August 31, 1962. if it would not have been lawful under that
previously existing law, section 6 creates a new right on the part of the victim of the
interference to claim a remedy for it described as “redress”. This remedy of “redress” co-
exists with any other remedy to which the victim Amy have been entitle under the
previously existing law.

To revert then to the legal nature of the rights and freedoms described in paragraphs (a) to
(k) of section 1, and in particular to the question: against whom is the protection of the
individual in the exercise and enjoyment of those rights and freedoms granted? In this
dissenting judgment Phillips J. A. said:

“The combined effect of these section [1,2 and 3] in my judgment, gibes rise to the
necessary implication that the primary objective of Chapter 1 of the Constitution is to
prohibit the contravention by the state of any of the fundamental rights or freedoms
declared and recognized by section 1”

Read in the light of the recognition that each of the highly diversified rights and freedoms
of the individual described in section 1 already existed, it is in their Lordships’ view clear
that the protection afforded was against contravention of those rights or freedoms by the
state or the chapter is concerned with public law, not private law. One man’s freedom is
another man’s restriction; and as regards infringement by one private individual of rights
of another private individual, section 1 implicitly acknowledges that the existing law of
torts provided a sufficient accommodation between their conflicting rights and freedoms
to satisfy Lordship’ view the court of Appeal were right to reject this argument. The
redress claimed by the appellant under section 6 was redress from the Crown (now the
State) for a contravention of the appellant’s constitutional rights by the judicial arm of the

46
 state. By section 19 (2) of the Crown Liability and Proceedings Act 1966, it is provided
that proceedings against the Crown (now the State) should be instituted against the
Attorney-General, and this is not confined to proceedings for tort.

Question (2) The structure and the presumptions that underlie chapter 1 of the
constitution of Trinidad and Tobago and the corresponding chapters in other
constitutions on the Westminster model that provide for the recognition and protection of
fundamental human rights and freedoms, have been referred to in a number of previous
cases that have come before the Judicial Committee: notably in Director of Public
Prosecutions v. Nasralla [1967] 2 A.C. 238; Baker v. The Queen [1975] A.C. 774; and
de Freitas v. Benny [1967] A.C. 239. In the first of these authorities Lord Devlin,
speaking for the Board, said of the corresponding chapter in the Constitution of Jamaica:
“ This chapter ……… proceeds upon the presumption that the fundamental rights which
it covers are already secured to the people of Jamaica by existing law. The laws in force
are not to be subjected to scrutiny in order to see whether or not they conform to the
precise terms of the protective provisions. The object of these provisions is to ensure that
no future enactment shall in any matter which the chapter covers derogate from the
rights which at the coming into force of the Constitution the individual enjoyed.” (p.
247)

That the same presumption underlies chapter 1 of the constitution of Trinidad and
Tobago was stated by the Judicial Committee in de Freitas v. Benny [1976 A.C 239, 244.
In section 1 the human rights and fundamental freedoms which it is declared (but the
only words in the section that are capable of being enacting words), “shall continue to
exist” are those which are expressly recognized by the section to “have existed” in
Trinidad and Tobago. So to understand the legal nature of the various rights and
freedoms that are described in the succeeding paragraphs (a) to (k) in broad terms and in
language more familiar to politics that to legal draftsmanship, it is necessary to examine
the extent to which, in his exercise and enjoyment of rights and freedoms capable of
falling within the broad descriptions in the section, the individual was entitle to protection
or non-interference under the law as it existed immediately before the Constitution came

47
 into effect. That is the extent of the protection or freedom from interference by the law
that section 2 provides shall not be abrogated, abridges or infringed by any future law,
except as provided by section 4 or section 5.

What confines section 2 to future laws is that it is made subject to the provisions of
section 3. In view of the breadth of language used in section 1 to describe the
fundamental rights and freedoms, detailed examination of all the laws in force in Trinidad
and Tobago at the time the Constitution came into effect (including the common law so
far as it had not been superseded by written law) might have revealed provision which
sections or section the person presiding in that court may, and shall if any part to the
proceedings so requests, refer the question to the High Court unless in his option the
raising of the question is merely frivolous or vexatious. (4) Any person aggrieved by any
determination of the High Court of Appeal. (5) Nothing in this section shall limit the
power of Parliament to confer on the High Court or the court of Appeal such powers as
Parliament may think fit in relation to the exercise by the High Court or the Court of
Appeal, as the case may be, of its jurisdiction in respect of the matters arising under this
Chapter.:

Question (1) Their Lordships can deal briefly with the question of jurisdiction. The notice
of motion and the affidavit in support of the application for the conservatory order for
the immediate release of the appellant pending the final hearing of his claim, made it
clear that he was, interalia, invoking the original jurisdiction of the High Court under
section 6(2) (a), to hear and determine an application on his behalf for redress for an
alleged contravention of his right under section 1 (a). It is true that in the notice of motion
and the affidavit which, it may be remembered, were prepared with the utmost haste, ther
are other claims and allegations some of which would be appropriate to a civil action
against the Crown for tort and others to an appeal on the merits against the committal
order of Maharaj. On the ground that the appellant had not been guilty of any contempt.
To this extent the application was misconceived. The Crown was not vicariously liable in

48
 tot for anything done by Maharaj J. while discharging or purporting to discharge any
responsibilities of a judicial nature vested in him; nor for anything done by the police or
prison officers who arrested and detained the appellant while discharging responsibilities
which they had in connection with the execution of judicial process. Section 4 (6) of the
State (formerly “Crown”) Liability and Proceedings Act 1966 so provides. At that time
too there was no right of appeal on the merits against an order of a High Court judge
committing a person to imprisonment for contempt of court, except to the Judicial
Committee by special leave which it alone had power to grant. Nevertheless, on the face
of it the claim for redress for an alleged contravention of his constitutional right under
section 1 (a) of the Constitution fell within the original jurisdiction of the High Court
under section 6 (2). This claim does not involve any appeal either on fact or on
substantive law from the decision of Maharaj J. that the appellant on April 17, 1975, was
guilty of conduct that amounted to a contempt of court. What it does involve is an inquiry
into whether the procedure adopted by that judge before committing the appellant was
entitle under section 1 (a), not to be deprived of his liberty except by due process of law.
Distasteful though the task may well appear to a fellow judge of equal rank, the
Constitution places the responsibility for undertaking the inquiry fairly and squarely on
the High Court.
It was argued for the Attorney-General that even if the High Court had jurisdiction, he is
not a proper respondent to the motion. In their themselves to the question raised it would
seem convenient to set out the most important of those provisions of the Constitution
upon which in their Lordships’ view the answers turn.

49
 CHAPTER 1

“THE RECOGNITION AND PROTECTIN OF HUMAN RIGHTS AND

FUNDAMENTAL FREEDOMS

“1. It is hereby recognized and declared that in Trinidad and Tobago there have existed
and shall continue to exist without discrimination by reason of race, origin, colour,
religion or sex, the following human right and fundamental freedoms, namely (a) the
right of the individual to life, liberty, security of the person and enjoyment of property,
and the right not to be deprived thereof except by due process of law;…

“2. Subject to the provisions of section 3,4 and 5 of this constitution, no law shall
abrogate, abridge or infringe or authorize the abrogation, abridgment or infringement of
any of the rights and freedoms hereinbefore recognized and declared and in particular no
Act of Parliament shall – (a) authorize or effect the arbitrary detention, imprisonment or
exile or any person; …. (e) deprive a person of the right to a fair hearing in accordance
with the principles of fundamental justice for the determination of his rights and
obligations;
“3. (1) Section 1 and 2 of this Constitution shall not apply in relation to any law that is in
force in Trinidad and Tobago at the commencement of this Constitution…..
“6.(1)for the removal of doubts it is hereby declared that if any person alleges that
any of the provisions of the fore going sections or sections of this constitution has been,
is being, or is likely to be contravened in relation to him, then, without prejudice to any
other action with respect to the same matter which is lawfully available, that person may
apply to the high court for redress.(2) the high court shall have original jurisdiction _(a)
to hear and determine any application made by any person in pursuance of subsection (1)

50
of this section ;and (b)to determine any question arising any the case any person which is
referred to it in pursuance of subsection (3) thereof, and may make such orders, issue
such writs and give such directions as it may consider appropriate for the purpose of
enforcing or securing the enforcement of, any of the provisions of the said foregoing
section or section to the protection of which the person concern is entitle. (3) if any
proceedings in any court other than the high court or the court of appeal any question
arises as to the contravention of any of provisions of the said foregoing forthwith
released, after suffering imprisonment for part of the day. It not without interest to not
that Braithwaite j. on June 26, 1975, gave reasons in writing for his decision. In this he
expressed the view that upon the evidence before him, the appellant had made out a
prima facie case that his right under section 1 (a) of the constitution not to be deprived of
his liberty without due process of law had been contravened .
the substantive motion , however, did not come before Braithwaite j. but before scott j
after un intermittent hearing extending over 13 days he dismissed the motion on july 23,
1975, and ordered the appellant to serve the remaining six days of his sentence of
imprisonment. His ultimate ground for dismissing it was that the high court had no
jurisdiction under section 6 to entertain the motion since to do so would in his view,
amount to the exercise by one judge of the high court of an appellate jurisdiction over
another judge of the high court . This would be inconsistent with the “equal power,
authority and jurisdiction “ which by section 5(2) of the supreme court of judicature act
1962 is vested in all the judges of the high court. Despite his disclaimer of jurisdiction to
entertain the motion Scott J. Did express his own view that the appellant not only had
been guilty of contempt of court but also had been told with sufficient particularity the
nature of the contempt of which he was accused .
From the dismissal of his originating motion the appellant to the court of Appeal; but
that appeal was not heard until April 1977. In the meantime he had sought and obtained
from the Judicial committee special leave to them against the original order of Maharaj J
.committing him to prison for contempt of court .By July 1976 this appeal had been
heard and determined in his favour by the judicial committee upon the ground which
where stated later in their judgment of October 11, 1976. so by the time appeal from the
judgment of Scott j. on the originating motion come to be decided by the court of appeal

51
the invalidity of the order of committal had been established as resjudicata and the only
questions then to be determined by the court of appeal were:(1) whether the high court
had jurisdiction under section 6 of the constitution (now section 14 of the republican
constitution ) to grant the appellant redress for an alleged contravention of this
constitutional rights resulting from something done by a judge when acting in this
judicial capacity; (2) whether the failure of Maharaj j. to inform the appellant of the
specific nature of the contempt of court with which he was charge before committing him
to prison for it. Contravened a constitutional right of the appellant in respect of which he
was entitled to protection under section 1(a) of the constitution (now selection 4 (a) of the
republican constitution ); and, if so, (3)whether the appellant was entitled by the way of
redress to monetary compensation for the period that he had spend in prison . all three
members of the court of appeal (hyatali c.j., Phillips and Corbin jj.a.) answered question
(1)”yes.”hyatali c.j. and Corbin j.a .answered the question (2)”no “;so for them question
(3) did not arise. Phillips j.a , in a dissenting judgment, answered question(2) and
(3)”yes”.
From that judgment by a majority of the court of appeal the appellant now appeals once
more to the judicial committee. in addressing days ’imprisonment for contempt of court
on April 17, 1975, upon the order Maharaj j., are narrated in the reasons for judgment
delivered by the judicial committee on October 11, 1976, in the previous appeal to which
they have given rise, Maharaj v. attorney-general for Trinidad and Tobago [1977] 1 all e.r
411. that was an appeal against the committal order. It was allowed and the order of
Maharaj j. was set aside. The ground for doing so were that ,p.416:
“in charging the appellant with contempt, Maharaj j. did not make plain to him the
particulars of the specific nature of the contempt with which he was being charge. This
must usually be done before an allege contemnor can properly be convicted and punished
(in repollard (1868) l.r 2 p.c. 106).in their lordships’ view , justice certainly demanded
that the judge should have done so in this particular case . the lordship are satisfied that
his failure to explain that the contempt with which he intend to charge the appellant was
what the judge has described in his written reasons as ‘a vicious attack on the integrity of
the court ‘vitiates the committal for contempt. “

52
 this was a finding that the judge, however inadvertently, had failed to observe a
fundamental rule of natural justice,; that a person accused of an offence should be told
what he is said to have done plainly enough to give him an opportunity to put forward an
explanation or excuse that he may wish to advance. The questions in the instance appeal
is whether this constituted a deprivation of liberty otherwise than by due process of law,
within the meaning of section 1(a) of the constitution of Trinidad and Tobago of 1962,
for which the appellant was in entitled to redress by the way of monetary compensation
under section 6.
In 1979 there was no right of appeal from an order of a judge of the high court finding a
person guilty of contempt of court and ordering him to be punished for it. An appeal did
lie to the judicial committee of the privy council but only by special leave of the
committee itself. So the appellant sought an immediate means of collateral attack on the
order of Maharaj j. on the very day of his committal he applied ex part by notice of
motion to the high court in purported pursuance of section 6 of the constitution,
claiming redress for contravention of his constitutional rights under section 1 of the
constitution and for a conservatory order for his immediate release on his own
recognizance’s pending the final determination of his claim. The nature of the redress that
he claimed was (a) a declaration that the order committing him to prison for contempt
was unconstitutional, illegal, void and off no effects ; (b) an order that he be released
from custody forthwith; and (c) an order that damages be awarded him against the
attorney-General “ for wrongful detention and false in prisonment;” “ together with a
claim for all such other orders etc. as might be appropriate. Both the attorney- general
and Maharaj .j were named as responded to the notice of motion but only the attorney –
general and Maharaj j. were named as respondents to the notice of motion but only the
attorney –general was served and from the out set the motion has been proceeded with
against him alone. The exparte application come before Braithwaite j. on April 17, 1975.
he granted the conservatory order; and the appellant was read in this context: section 1
and 2are subject to section 3 but section 6 is not. In considering redress under section 6 it
is only necessary to look at section 1or 2 in order to discover what the fundamental rights
and freedom are. Section 4 (1)of the Trinidad and Tobago order- in- council (1962 S.I.
1875) is relevant to the construction of section 6. what was done by the judge was

53
 unlawful under existing law and therefore the appellant is entitled to redress under the
constitution. The fact that under existing law he had no remedy is irrelevant because he
has a right to redress under section 6 as to jurisdiction are clear and unambiguous:
“redress”is very wide and means redress of a kind known to the law. For loss of liberty
which has already been regain the only redress is damages: the Appellant is not seeking
punitive damages but compensation for the loss of his liberty only. This claim should not
be confused with a personal claim against the judge for damages. In assessing damages
there is no difficult about special damages. General damages in case such as the present
are analogous to those for the tort of wrongful imprisonment and should be assessed on a
similar basis and reflect the injury to the complainant’s self-respect that wrongful
deprivation of liberty is a bridge of the constitution is also to be taken into account.

It is difficult to see how some of the fundamental rights and freedoms guaranteed by
Westminster modern constitutions could have existed at common law: see Oliver v.
Buttigieg [1967] 1 A.C. 115. the court has ample powers to deal with any abused of
process. Section 6 has provided that the High Court is the proper forum to seek
enforcement of the subject’s constitutional rights and he could apple there even for
infringement of them by the Court of Appeal.

Public policy does not require that the state should be immune in respect of acts of the
judicature. The respondent’s arguments on public policy equate this type of action with
an action against the judge personal were as entered different consideration arise where
the state is defendant. It is against the tenor of the policy of the constitution that they
should be differentiation between one arm of the state and another. Once want to due
process and infringements of liberty are established section 6 of the constitution gives the
Court jurisdiction to order “redress”. Section 6 (2) does not cut down section 6 (1): the
intention was to make the available relief as wide as possible. “Enforcement” in section
6 (2) is not used as a term of art, remedies are emulative. There would be a lacuna in the
available remedies if damages were not included in “redress” Where enforcement is the
prescribed remedy in something done, the only way to “enforce” is to make an order
which recognizes the existence of the right.

54
 February 27. The judgment of the majority of their Lordships was delivered by LORD
DIPLOCK.

The unfortunate misunderstands that resulted in the appellant, a member of the Bar of
Trinidad and Tobago, being committed to seven the Privy Council it would be even more
ludicrous if an aggrieved person could go for redress to the High Court.

The Attorney-General was not a proper party to the motion: he was not involved, nor was
the state. To depend on section 13 of the Judicature Act 1962 (No. 12 of 1962) is
misleading because there the Attorney –General is not a party but simply has the right to
be informed of the constitutional issue and in his absolute discretion to join the
proceedings as amicus curiae and not as a party.
Davies followings. “Redress” in section 6 (1) of the Constitution is to be interpreted
narrowly and is qualified by “for the purpose of enforcing or securing the enforcement”
in section 6 (2). The High Court’s jurisdiction is limited to making orders by way of
declaration Injuction (where appropriate because an Injuction cannot issue against the
state) and prerogative order. There is no power to award damages. Save for powers and
duties of the courts other than the High Court or Court or Court of Appeal conferred by
section 6 (3), section 6 gives no new remedy to the individual complaining of breach of
constitutional rights. The individual does not lose anything by this interpretation: he can
use the ordinary procedures to enforce his rights and these can be just ads expeditious as
procedures to enforce his rights and these can be just as expeditious as proceedings
under section 6. Jaundoo v. Attorney-General of Guyana [1971] A.C. 972 supports the
respondent’s submissions. The appellant’s case argued before the Board differs from that
presented below. There the complaint was of the act of a judicial officer and here it is of
the act of an unspecified officer of the executive in detaining the appellant under an order
of a judicial officer which the executive officer could not disobey. The appellant asserts a
right (breach of which is not a tort) which he did not have before the Constitution came
into force. The Constitution creates no new rights as opposed to remedies: see de Freitas
v. Benny [1976] A.C. 239. Even if the open words of the section 1 of the Constitution

55
 creates new rights and freedoms which are not part of the common law that does not
detract from the argument on section 6 and any new rights are enforceable by the normal
process section 3 of the constitution provides that sections 1 and 2 shall not apply in
relation to any law in force at the commencement of the constitution. By section 1 of 5
existing law includes the common law. Common law deals with public policy. Judicial
immunity from the consequences of an act done in a judicial capacity is an aspect of
public policy. The same immunity extends to officers acting in an obedient to a judge’s
order. To hold otherwise would lead to dissatisfied litigants sidestepping appellate
procedure by a collateral action complaining that their fundamental rights and freedom
had been infringed by an executive officer acting on the order of a judge. Apandora’s
box would be opened: act consequent on an order of the High Court or of the judicial
committee could be challenged in the High Court.

Before the State Liability and Proceedings Acts 1966 in general no action by against a
state for wrongs committed by its servants. That Act permitted proceedings in tort but in
the instant case no tort is alleged, no action lies for the act complained of and, ex
hypothesis, the Attorney-General cannot be named as a defendant.

Turner-Samuels Q.C. in reply. Section 3 of the constitution must be appropriate to

particular circumstances. Although research has not revealed a case where a person
wrongful sent to prison has obtained damages save for tort of false imprisonment
jaundoo v. attorney-general of Guyana shows that monetary compensation is appropriate
where there is no other remedy.
The attorney-general is the appropriate party against whom a plaintiff may bring
proceedings for redress under section 6 of the constitution if a plaintiff has remedy
against the state, Attorney-General is the damages. Note the provision of the state
(formally crown) liability and proceedings acts 1966. Philips J.A was right in saying that
the human right and fundamental freedoms declared by section 1 and specifically
protected by section 2 of the constitution were primarily justifiable against the state. The
principle is that fundamental rights being guaranteed no organ of the state may act in
contravention of them. The order of Maharaj J. was not the act of an ordinary tort feasor.

56
 It was a state act performed by the judicial arm of state. The right of an individual to
liberty and the right not to be deprived thereof save by due process of law existed before
the commencement of the constitution but its enrichment as constitutional rights gave it a
new status not only by reasons of the formalities required for its abrogation of
abridgement but also as a result of the creation by section 6 of the constitution of a new
right of redress in respect of contravention which is primarily intended to be invoked in
cases of contravention by the state as opposed to that by private individuals. Section 6 of
the constitution owes is origin to Article 5 (5) of the European convention on human
rights; see also Attorney-General v. Antigua Times [1976] A.C 16. note that the right
redress in section 6 relates expressly to breaches of section 1 and 2 of the constitution.
Habeas Corpus only lies if the imprisonment was an act of the executive: it does not lie
against the Governor where the imprisonment was pursuant to a judge’s order.
Ramsahoye S.C. followed.
Algernon Wharton Q.C. and Clebert Brooks (both of the Trinidad and Tobago Bar) and
Gerald Davies for the respondent. Scott J. was right that he has no jurisdiction to
entertain the appellant’s motion. Section 6 (1) of the Constitution does not enable a
person in pursuit of the rights and freedoms declare by section 1 and 2 of the Constitution
to apply for redress to a judge of the High Court form any ruling or decision of the High
Court. To read section 6 in a such a wide way in contrary to the established system of
justice and to the progressive steps available to the citizen and pursuit of his legal rights
and the rights of appeal provided for by the Judicature Act 1962.
On authority the Court should construe a statute away form its too literal terms to avoid
absurdity. Confusion or unreasonableness and should have due respect for the
consequences such construction must not offend the common sense, object or intention of
the statute. To construe section 6 narrowly would not deprive the subject of his right to
pursue his constitutional right: he has a statutory right of appeal to the Court of Appeal. If
a motion under section 6 were founded on an alleged contravention of section 1 or 2 of
the Constitution by the Court of Appeal Judicial Committee of
Rooks v. Bernard [1964] A.C. 1129, [1964] 2 W.L.R. 269, [1964] 1 All Sirros v. Moore
[1975] Q.B. 118, [1974] 3 W.L.R 459; [1975] 3 All E.R. 776, C.A.
Woolmington v. Director of Public Prosecutions [1935] A.C 462, hi. (E0

57
 The following additional cases were cited in argument:
Allman V. Thornhill (unreported), December 22, 1976, Court of Appeal of Trinidad and
Tobago.
Attorney-General v. Antigua Times Ltd [1976] A.C. 16; [1975] 3 W.L.R. 232; [1975] 3
All E.R. 81, P.C
Thompson v. Kiysvukke (1960) 362 U.S. 199.
APPEAL (No. 21 of 1977) by Ramesh Lawrence Maharaj from the judgment and order
(May 5, 1977) of the Court of Appeal of Trinidad and Tobago (Hyatali C.J. and Corbin J.
A,. Phillips J.A. dissenting) dismissing his appeal form an order of Scott J. (July 23,
1975) dismissing his application by notice of motion on April 17, 1975, to the High Court
under section 6 of the Constitution seeking redress for the contravention of his
constitutional rights protected by section 1 of the Constitution and naming the Attorney-
General as respondent.

The facts are stated in the judgment of the majority of their Lordships

David Turner-Samuels Q.C. Fenton Ramsahoye S.C (of the Trinidad and Tobago Bar)
and William Birtles for the appellant. The provisions of Chapter 1 of the Constitution
dealing with fundamental rights and freedoms impose a fetter on the exercise by the
judiciary of their powers; see Hinds v. The Queen [1977] A.C 195, 213. nothing in the
existing law permitted the procedure adopted in the instant case and there was a
contravention of the due process provisions of section 1 and 2 of the constitution. The
framers of the Constitution intended that by virtue of section 6 there should be redress for
any contravention by anyone of the fundamental rights and freedoms contained in section
1 and 2. section 6 should be construed to give effect to the intention. A declaration
and/or damages would be appropriated redress under section 6: subsection (2) is an
important procedural aspect of the section because a court might think the Attorney-
General a proper part as regards a declaration but not as regards damages. A
constitutional remedy should not be permitted to fail for want of an appropriate
respondent, i.e ; if in any case the appropriate respondent has not been joined.

58
 A defendant is always entitled to know what offense he is charged with and if he is not
told there is a fundamental failure of due process: a bare charged of contempt is not
specific enough. As to due process, see Allman v. Thornhill (unreported), December 22,
1976, de Freitas v. Benny [1976] A.C. 239 and Thompson v. Lousville (1960) 362 US
199.
“Redress” in section 6 of the Constitution is not a tem of art: for its ordinary meaning, see
The Shorter Oxford English Dictionary, 3rd ed. (1944). The appellant adopts the
reasoning in Jaundoo v. Attorney-General of Guyana [1971] A.C 972, 982, 983. The
word is used in its widest possible sense and entitles and requires the court to give relief

2. JURISDICTION AND OUSTER CLAUSES

2.1 Anisminic Case

2.2 Attorney General V Lohay Aknonaay & Anor, Civil Appeal No. 31 of 1994, (CA)
2.3 BAWATA & 5 others V Registrar of Societies , Misc, Civi. Cause No. 27 of 1997
2.4 DPP V Angelina Ojare, Criminal Appeal No. 21 of 1997, (CA)
2.5 Hamisi Ally Ruhondo & 115 v TAZARA, Civ. Appeal No. 11986(C.A)
2.6 In Re: Ministry of Labour (Applicant Joseph Cassian), Misc. Civil cause No. 14 of
1977, HC at DSM
2.7 Mwanza Restaurant V Mwanza Municipal Director, Misc. Civ cause No.3 of 1987,
HC at Mwanza

59
2.8 OTTU v Attorney General & Anor. Civil case No. 53 of 1994, HC at Dar-es-Salaam
2.9 R v panel of Take –over and Mergers, ex p Datafin [1987] Q.B.815

CONSTITUIONAL AND ADMINSTRATION ASPECTS OF THE

ANISMANIC CASE

The decision of the House of Lords in Anisminic Ltd v. Foreign Compensation

Commission provides a dramatic climax to five years of litigation over a matter which an
Act of parliament expressly forbids to be questioned in any court of law. After prolonged
questioning before Browne J., in the Court of appeal and restored the decision of the
learned judge of first instance; who held that a determination of the Foreign
compensation commission was a nullity.

This achievement demanded investigation of fundamental problems of jurisdiction and of

the inherent powers of the courts over statutory authorities. It also demanded that the
House of Lords previous decision on the subject should be treated, in effect, as given per
incuriam. And it demanded the imparting of even more elasticity that usual to the
doctrine of ultra wires. It is bound to rank as a major contribution to the series of cases
which have invigorated administrative law in the last few years.

The Foreign Compensation Commission is a statutory tribunal constituted by the foreign

compensation Act 1950 for the purpose of adjudicating claims on funds paid by foreign
governments to the Government of United Kingdom in compensation for the
expropriation or destruction of British property abroad.

Anismic Ltd. Claimed some euro4m. for the loss of a manganese mine in the Sinai
peninsula in consequence of the Suez hostilities in 1956. under a treaty of 1959 the
United Arab Republic paid over euro 27.5m. to the United Kingdom as compensation for
this and other specified properties, but claims had to be made good to the Foreign
compensation commission. In a provisional determination the commission rejected
Anismic Ltd’s claim on the ground that they had sold their undertaking to an agency of
the U.A.R Government before the date of the treaty and did not therefore comply with a
provision of an order in council requiring that claimants and their successors in title
should be British nationals at that date but as the majority of the House of Lords
ultimately held, this determination was erroneous.

The Commission were misled by what Lord Wilbert fore called “unfortunate telescopic
drafting” The requirement about the nationality of successor in title did not apply where
the original owner was the claimant. Moreover, the majority held, the commission’s
mistake meant that it went into matters which it had no jurisdiction to consider. Thus the
case could be brought within the principle that statutes which forbid recourse to the
courts will not protect action which is ultra vires. This least principle was affirmed
unanimously and had also been affirmed in the lower courts, But in the last previous case

60
to come before the House of Lord’s the House and the lower courts alike had overlooked
the principle’s existence, its nature and its justification are the first subject which requires
discussion.

Ouster clauses: versus Legislature

The starting point in abnormally clear: there is no doubt, for once, about the intention of
the legislature. “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”. Reinforcing this,
section 11(8) of the Tribunals and Inquiries 1958 expressly excepts determination of the
foreign compensation. Commission from the operation of section 11, which gibes partial
effect to the recommendation of the Franks Commons that the commissions was
concerned mainly with making distributions and that since it needed to know “how much
of the cake was left for distribution to claimants,. Would be very difficult for the money
over to be distributed in reasonable time if the whole exercise could be held up by
substantial claims being taken the High Court clearly therefore the object was to prevent
all litigation over the commissions awards.

This has been repeatedly confirmed by ministerial spoken in the debates on the foreign
compensation bill 1969 under the order in council Anismanic Ltd claim was in fact
registrable as of and right and not excreta, but that had no bearing on the intention
of the legislation
For three centuries, however, the courts have been refusing to enforce statutes which
attempt to give public authorities uncontrollable power. If a ministry or tribunal can be
made a law unto place in a constitution founded on the rule of law. It is curious that
Parliament shows no consciousness of this principle. But the judges, acutely conscious of
it, have succeeded in preventing parliament from violating constitutional fundamentals.
In effect they have established a kind of entrenched provision which the legislature,
whatever it says, Is compelled to respect. The essence of this provision is that no
executive body or tribunal should be allowed to be the final judge of the extent to its own
powers. But while entrenching this principle for sound constitutional reasons, the judges
have naturally disclaimed any intention of rebelling against the legislature. They have

61
 prudently concealed the constitutional aspect in a haze of technicality about jurisdiction
and nullity.
The argument laying most readily to hand is that an enactment determination
unquestionable (referred to for short as an ouster clause) does not apply to an order or
determination outside jurisdiction, since that is not an “order” or “determination” within
the meaning of the Act. Lord Reid said, for example, that an ouster clause undoubtedly
protects every determination which is not a nullity, but that it is not necessary or even
reasonable to construe the word “determination” as including everything which purports
to be determination but which is in fact no determination at all. Similarly, Lord Peace
said that the more reasonable and logical construction was that by “determination”
Parliament meant a real determination, not a purported determination. This amounts to
saying that “determination” means “valid determination” Once evident difficulty in this
reasoning is that a valid determination needs no protection anyway, at least if it has no
error on its face. Another is that until the court has pronounced, no one can know whether
a disputed determination is valid or not; and this is the very question which parliament
evidently intends to prevent being litigated. But the wisdom of the judicial casuistry lies
in its avoidance of these issues, so that the courts can appeal to obey rather to dfy the
sovereign legislature. Lord Wilberforce said bravely that in holding a “decision”
protected by an ouster clause to be a nullity the courts are carrying out the intension of
parliament and that it would be misdescription to speak in terms of a struggle between the
courts and the executive. He then posed the central question: what would be the purpose
in the statute allowed those limits to be passed with impunity?
This is the question which Farwell L.J answered to clearly in a passage which has now
been quoted with approval by Lords Morris, Pearce and Wilberforce:

“Subjection in this respect to the High Court is a necessary and inseparable

incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates
an authority to determine and enforce it: it is a contradiction in terms to create a tribunal
with limited jurisdiction and unlimited power to determine such limit at its own will and
pleasure such as tribunal would be autocratic, not limited…….”

62
 The key word here is “inseparable” The objection to ouster clause is that they are
repugnant to a coherent legal system. The courts rightly regard it as their task to keep the
system coherent. But it can hardly be denied that they do this by looking g at what the
intention of Parliament caught to be rather that at what it is.

Moreover, the English courts have taken the uncompromising stand of holding ouster
clause to be inoperative in every kind of case where the error can be said to go to
jurisdiction, artificial as some of these are. In Australia, on the other hand, an attempt has
been made to resolve Farwell L.J’s “contradiction in term” so as to allow the intention of
the legislature to operate within reasonable limits. Many of the Australia cases are
concerned with the problem of keeping the courts of law out of the sphere of labour law,
and very drastic ouster clause are freely used. The High Court of Australia looks on the
problem as one of reconciling the obvious intention of these clause with the equally
obvious intention that the powers of the Arbitration Court (for example) shall be legally
limited. Its solution is to decline to intervene “where the tribunal has made a bona fide
attempt to exercise its authority in a matter relating to the subject with which the
legislation deals and capable reasonably of being referred to the power possessed by the
tribunal.” Thus the court refused relief where an appeal board went beyond the questions
under appeal, which it had no power to do, thus the court refused relief where an appeal
board went beyond the questions under appeal, which it had no power to do, and where a
tribunal was said to have exceeded its jurisdiction by misconstruing “lock-out” But
prohibition was granted, despite express ouster of this and other remedies, where a board
sat without the statutory quorum which was required for it to function validly. Clearly
the Australian compromise poses very difficult questions of where to draw the lien.
Equally clearly, it would have failed to provide a remedy in the Anismic case. But at least
it shows that some sort of balance can be stuck between legislative intention and
constitution logic.
A balance has also been stuck by the English courts themselves in a number of
comparable situations. Once example is the familiar problem of deciding whether a
statutory condition is mandatory or remedy directory. I held merely directory, it may be
disregarded with impunity. In the latter case the court finds no difficulty in holding that

63
an expressly enacted condition is legally meaningless. Another example is offered by the
Licensing Act 1964, which after laying down detailed rules under which licensing
justices are disqualified by this section shall be invalid by reason only of that
disqualification.” This is pro tango an ouster clause, but he courts have been able to adopt
a compromise solution under which the statutory protection is confined to technical
disqualifications and does not apply where there is a serious infringement of the principle
of natural justice. In these cases a middle way can be followed without serious danger,
since the in-built contradiction in the statute applies only to some specific condition with
limited effect. Where, on the other hand, a sweeping ouster clause bars aces to the courts
on all questions, the dangers of uncontrollable power are far more obvious. The instinct
of English courts is then to refuse all compromise on any kind of jurisdictional question.
Nor is this an English idiosyncrasy. It is one of the “universal” of the judicial function.

It is remarkable that this bold and (it is submitted) wise judicial policy has never
previously been discussed at any length in a reported case, although it has three hundred
years of history behind it. Perhaps a discreet silence was thought best. At any rate, the
cases merely repeat tersely that questions of jurisdiction are not effected by ouster
clauses. An early decision of 1970 is in fact one of the most explanatory. A stature of
1571 provides that commissioners of sewers should not be compellable to make any
return of their actions or be fined or molested in body, lands or goods for acting as such.
On the advice of counsels the Whtechapel commissioners, accused of rating lands in
Wrapping outside their jurisdiction, paid no attention to writs of certiorari form the
King’s Bench. They soon found themselves molested but in body and in goods, for they
were imprisoned and fined for there contempt. Kelynge C.J. said:
“this court cannot be ousted to its jurisdiction without special words; her is the
last appeal, the King himself sits here, and that in person if he pleases, and his
predecessors have so done; and the Kind ought to have an account of what is done below
in inferior jurisdictions. This for the avoiding of oppressions, and other mischief. To
deny and oppose this, and to set up uncontrollable jurisdictions below, tends manifestly
to commonwealth; and we ought, and we shall take caser that there be no such thing in
ought, and we shall take care that there be no such thing in our days”

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Assuming that “commonwealth” was in 1970 a disparaging term signifying dictatorship
or lawlessness, one can see exactly the same sense as in Farwell L.J.’s remarks 240 years
later and as in the House of Lord’s opinions today.
Parliament took the hints about “clauses soon became common. But the courts firmly
disregarded them in issuing certiorari to quash for excess of jurisdiction. What may be
the earliest report of such a case is no more than a note of Lord Kenyon: The statute of 8
& 4 W. & M.. s. says, no certiorari shall issue to remove any order made on that Act. But
the order in this case is out of the jurisdiction of the justices and, therefore, may be
removed by a certiorari.” This rule was firmly established in a long line of later
decisions. A modern example concerned the Country Courts Act 1959, which ordained
that, except as provided by the Act, “no judgment or order of any judge of country
courts….shall be removed by appeal motion, certiorari or otherwise into any other court
whatever….” But the divisional Court quashed a country court judge’s order on
certiorari, Lord Parker C.J. saying that he was quite satisfied that certiorari would lie,
even outside the Act, where the country court judge had acted without jurisdiction.

Two factors have helped to supply justification for these decision. One is that a limited
meaning can still be given to ouster clause by allowing them to bar applications for
certiorari to quash for error on the face of the record. Mere error within the jurisdiction,
as for example where an industrial injuries tribunal misconstrues the obscure “paired
organs” regulations, is a form of judicial control which can be taken away without any
infringement of principle as is obvious from the fact that it fell into abeyance for a
century before 1951. and that in 1944 the Court of Appeal decided that it did not exist.
But now that it exists again, it offers one from of relief that an ouster clause can oust.

The House of Lords has now affirmed this clearly, though they were unable to decide
unanimously whether the error in the anisminic case was within jurisdiction or not.
The other justification is the acquiescence of Parliament. Although ouster clauses were in
constant use, Parliament never attempted to prevent the courts form depriving them of

65
most of their intended meaning. Repeated enactment of no certiorari clauses in common
from was taken as proof that Parliament was content with the established interpretation.
But the Anismic case at last produce a reaction. The Government first obtained an
amendment in the Foreign Compensation Bill 1969, which happened to be before
Parliament, providing for empowering the commission to interpret its orders in council
and making such interpretation unquestionable in courts of law. Whether or not this
would have been more effective that the original ouster clause, it would have brought the
constitutional conflict into the open. But it was criticized both in and out of Parliament as
inconsistent with the legal system and the rule of law. Lord Dilhorne successfully moved
and amendment to allow a right of appeal to the Court of Appeal but no further.
Ultimately this solution was accepted by the Government and was embodied in a long
and detailed clause. Basically this provides for appeal to the Court of Appeal, but not to
the House of Lords, on any question of the Commission’s jurisdiction or of their
interpretation of the Orders in Council. But it is not to effect any rights of any person to
bring proceedings questioning any determination of the commission on the ground that it
is contrary to natural justice, with theses exception no determination of the commission is
to be called in question in any court of law.

This is probably the fist occasion on which the implications of ouster clauses have caused
public controversy. It is therefore very satisfactory for all upholders of the truths stated
by Farwell L.J. that, after reconsideration, the door to the courts of law has been left more
open that shut. It is impossible here to discuss technical aspects of the amendment, which
was made while this article was in the press, but at least the first statutory mention of
natural justice is noteworthy.

Unqualified ouster clauses are now, it may be hoped, unlikely to be used again. Section
11 of the Tribunals and inquires Act 1958 restored the control of the High Court by
certiorari and mandamus (though, strangely, not by declaratory judgment) in all cases
where earlier statutes had excluded challenged in the courts, with four exceptions: (1) the
British Nationality Act 1948, s 26; (2) any order or determination of a court of law; (8)
the foreign compensation commission; and (4) cases where the act allows application to

66
 the High Court within a limited time. Exceptions (1) and (2) are therefore the only
remaining cases where parliament attempts to bar access to the High Court altogether.
But perhaps the most important of al the questions raised by the Anisminic case is how it
effects the very numerous statutes failing within exception (4).

Ouster clauses and time limits.

No standardized statutory formula is commoner that that which provides that
some ministerial or other order shall not be questioned in any legal proceedings
whatsoever, unless its validity is questioned within a short periods, normally six week.
Ouster clauses of this qualified kind were introduced about 1930, and have long been
high in parliamentary favor. The planning, housing and compulsory purchase legislation
is riddled with them, and so is much other legislation. They are exempted, as already
noted, from section 11 of the Tribunals and Inquiries Act 1958. the typical provision is
that a compulsory purchase order may be challenged in the High Court within six weeks
of notice of its confirmation on the grounds that “it is not empowered to be granted under
this Act “or that “any requirement of this Act…. Has not been complied with” but that
otherwise the order “shall not be questioned in any legal proceeding whatsoever”
Judicial decisions on this type of outer clause did not begin to be given until after the end
of this type of second world war; and at that time administrative law was in the period of
defeatism and amnesia form which it has only recently been recovering. So it is hardly
surprising that the decisions were as unmindful of general principles and of past
achievements as were the post-war decisions on natural justice in the years before Ridge
v. Baldwin reached the House of Lords. In none of them was any mention over made of
the centuries –old policy of grating certiorari in spite of express no certiorari clauses, or
of the fundamental importance of enforcing jurisdictional limits. In the Court of Appeal
Jenkins L.J said curtly (no authority having been cited) that it was misconceived to argue
that an ouster clause could not be intended to apply to an order which was a mere nullity,
and that the clause was an absolute bar to all litigation, irrespective of the nature of the
objection”. Thus he rejected the precise principle which the House of Lords has now
reactivated. The House of Lords itself in the East Elloe case held that all that the court
could do was to follow the “plain meaning” of the “plain words” of the ouster clause,

67
though there were numerous conflicting opinions on what the “plain meaning” was, and
though a minority of their lordships were prepared to hold that there was an implied
exception for fraud. It cannot be often that the House of Lords decides an appeal without
any mention of the main principle of law which ought to be in issue. Had referred only
been made to the decisions holding that a no certiorari clause will not bar certiorari in
case of fraud the whole case would have been put in a different light.
In the Anisminic case their lordships have now repudiated the East Elloe case, for the
very reason that the relevant case-law was never cited. But at the same time they have
stressed the similarity of all variety of ouster clauses, including those which operate only
after a prescribed period of time. Thus the way now lies open for challenging all sorts of
planning, housing, compulsory purchase and other orders after the prescribed six weeks,
on any of the many grounds which go to jurisdiction. But then there will be a fresh set of
problems, for what is to happen if a compulsory purchase order is shown to be a nullity
after a housing estate or a motorway have been built on the land with the expenditure of
much public money? In cases of this kind there are genuine reasons for setting a time
limit to legal disputes. On the other hand it is generally thought that the six weeks period
is unreasonable short.

Another problem is that the legislature has taken to using these six weeks ouster clauses
more or less indiscriminately. It cannot possibly be necessary to set so severe a time
limit to questioning all the miscellaneous varieties of planning orders which are so
protected by Part XI of the town and country planning Act 1962. another example is the
medicines Act 1968, which forbids questioning after three months of the validity of
decisions of the licensing authority for medicinal products or of the Minister’s
certificate that pharmacist’ premises are unsuitable for registration. A six weeks it me
limit was first proposed in the Bill. The Council on Tribunals succeeded in obtaining its
extension to three months, but they still proliferate alarmingly, and it is surely necessary
to review the whole situation and to confine them to the special cases where they may be
justifiable. This should be one aspect of the general reform of remedies in administrative
law which is now needed.

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 Ouster clauses which take effect only after a prescribed time are in some ways
more akin to statute of limitation that to clauses like that in the foreign compensation
Act 1950 which attempt to prevent litigation altogether. The public authorities protection
Act 1898, which until its repeal in 1954 set a time limit of six months, later extended to a
year, on actions against persons acting in execution or intended execution of any Act of
Parliament, was not looked upon as “ousting the jurisdiction of the courts” though that
was precisely what it did on the expiry of the prescribed time. Nor does any one doubt the
validity of the present six month’s time limit on applications for certiorari” the House of
Lords appear to assume that the verbal similarity between the Anisminic and East Elloe
type of ouster clause mean that they must be construed similarly. But where access to the
courts is restricted only in terms of time, the court might reasonable treat the provision
merely as a stature of limitation. On this basis the conflicting decisions of the House of
Lords could to some extent be reconciled. Tub it would still be necessary to restrict the
excessive use of unduly short time limits, which are a bad feature of present-day
legislation. It is true that some foreign countries work with very short period: proceedings
in the administrative courts have to be begun within two months in France and one
month in West Germany. But the Public Authorities protection Act was repealed because
the period of a year was too short by British standards.

Jurisdictional error

The essence of the Anisminic decision was that the ouster clause would not
prevent the determination of the Foreign Compensation commission being set aside by
the courts if it was outside the commission’s jurisdiction; but that it could not be
questioned on the ground of mere error within the jurisdiction; on this the House of Lords
were unanimous. But only by a majority of three to two days they decide that the
commission had in fact exceeded its jurisdiction.
Stretching the concept of jurisdictional error has been the principal technique by which
the courts have extended their control over statutory authorities and tribunals, as for
example by holding that action which is wrongly motivated or unreasonable or
inconsistent with natural justice is ultra vires and void. The new case is a notable instance

69
 of this technique. The error of the commission, as the majority held, was that it
misconstrued the Order in Council by requiring that the claimant should satisfy the
provisions requiring successors in title to be of British nationality when, on a true
construction, those provisions were irrelevant in a case whether the claimants was the
original owner. Thus the commission made an inquiry which the order did not empower
them to make based their decision on a matter which they had no right to take into
account had no jurisdiction to put further hurdles” in the claimants’ way and were
seeking to impose another recondition, not warranted by the order. By these and similarly
phrases the commission’s mistake is represented as something more that a mere error of
interpretation, and as carrying it beyond its jurisdiction. It is to be classed with such
jurisdictional errors as addressing oneself to the wrong question and taking irrelevant
considerations into account.

The House of Lords also make much use of the term “nullity,” since the tem
“jurisdiction” has been confused by the hoary fallacy that there can be no jurisdictional
error where the tribunal has jurisdiction to embark on its inquiry in the firs place. This
fallacy has may times been refuted, and it is satisfactory that Lord Reid now refutes it
again by explaining the remarks which he made in the Armah case. It is quite clear that a
statutory tribunal may step outside its jurisdiction is conferred. Whether there is excess o
jurisdiction, or merely error within jurisdiction, can be determined only by construing
the empowering statute, which will often give little guidance. It is really a question of hoe
much latitude the court is prepared to allow. And when, as in the Anisminic case, a claim
worth euro 4m. appears to have been wrongly rejected, the court will naturally be
disposed to intervene. In the end it can only be a value judgment, and there is no
clinching argument.

Lord Morris in his dissention opinion reasoned persuasively that the commission’s error,
if any, was within jurisdiction. But his reasoning is not strengthened by his argument that
the commission were obliged to interpret the order in council because it lay in the direct
path of their inquiry, and that “they were inevitably within their jurisdiction because they
were doing what they had to do. “A tribunal must always decide on the limits of its own

70
 jurisdiction if they are disputed before it, but this necessity in no way precludes the
supervisory function of the court if the tribunal decides wrongly to exceed its jurisdiction.
The real weakness in the majority’s position, it may be felt, is that it leaves the
commission with virtually no margin of legal error, it comes perilous close to saying that
there is juristic if the decision is right but none if it is wrong. Almost any
misconstruction of a stature or order can be represented as “imposing an unwarranted
condition or addressing themselves the wrong question; that they had no jurisdiction to
exclude what was qualifying serve within the meaning of the regulations, and that they
rejected a consideration which they were told to have in mind, thus direction themselves
into an unauthorized inquiry. Since they was no ouster clause the court was able to quash
for mere error on the face, while emphasizing that there was no excess of jurisdiction.
Had there been an ouster clause, the court might have manipulated the distinction very
differently for the sake of preventing a serious injustice.

The jurisdictional barrier, therefore, is likely to prove frail when circumstances put it
under pressure. It may well be asked whether there is any merit in maintain it in its
present artificial poison, or indeed at all. The courts are no more willing to see injustice
done by misapplication of the law than by technical excess of power. If their control over
the latter is to be statute-proof, then why not their control over the former? The
distinction which is now wearing so thin may be distorted not only by decisions on ouster
clauses but also by anomalies in the law of remedies. The ruling doctrine at present is
that mere error on the face of the record, as opposed to error going to jurisdiction. Is
remediable by certiorari but not by declaratory judgment. In cases where the short time
limit for certiorari has expired, the court may be tempted to find jurisdictional error so
that a remedy may still be granted.

The house of Lords had made it perfectly clear that nullity is the consequence of all kinds
of jurisdictional error, e.g. breach of natural justice, bad faith, failure to deal with the
rights question, and taking wrong matters into account. Although this merely confirms
long-established law, it should help to resolve the tangle caused by paradoxical
suggestions that action in excess of jurisdiction may be voidable as opposed to void. As

71
 Lord Reid observed, there are no degrees of nullity. Any as has been submitted in this
Review, “viodable” is a meaningless term in this context. Lord Wilberforce said: “There
are dangers in the use of this word [nullity] if it draws with it the difficulty distinction
between what is void and what is voidable, and I certainly do not wish to be taken to
recognize that this distinction exist or to analyze it if it does. “Not the lease welcome
feature of the new decision is that it ought to obviate this confusion and unnecessary
exercise.

Human Rights in Tanzania

The Defendant did not challenge these figures either in cross-examination of the
plaintiffs’ witnesses or through its own witnesses. The figure s appears reasonable and I
accept them. In the event the claim for special damages is allowed as prayed at Shs.
545,600/=.
In considering the claim for general damages this court considers the following factors:
(a). The plaintiffs have been deprived of the use of their land partially from March, 1979
and totally from January, 1981 until do-date. Excluding the 1980/81 crop which has been
covered by the award of special damages, the plaintiffs have lost crops for three years.

(b). On only 428 ½ acres of land the plaintiffs were capable of producing over shs.
500,000/= worth of crops per annum. The total land they were deprived from using was
6,095 acres of pasture and 2030 acres of arable land.

On the other hand I consider that the plaintiffs during their period of deprivation did not
have to use any inputs in the form of seed, fertilizer, labour fuel etc.
Considering that the 1st Plaintiff had only 200 acres of land under cultivation and that the
exact use to which the pasture was put was not established, I ward the 1st plaintiff shs.
250,00/= as general damages. The 2nd to the 67th plaintiffs, who owned and used 1830
acres of land are awarded shs. 1,300,000/= in general damages – the same to be
apportioned between them in proportion to the acreage held byte each before their

72
eviction by NAFCO. The special and general damages awarded, totaling shs. 2,095,600/=
is to bear interest at 9% from the date of judgment until payment in full.
The Plaintiffs are also awarded the costs of this suit, the same to be taxed.
NOTE: In this case the Defendants went on appeal to the Court of Appeal of Tanzania.
In the case of National Agricultural and Food Corporation v. Mulbadaw Village Council
and others, that court partially reversed the decisions of the High Court on among other
reasons, that some of the plaintiffs had failed to prove that they were natives and
therefore they could not hold land under customary law.

Attorney-General
Versus
Lohay Akonaay and Another.

The respondents in this case, Lohay Akonaay and Joseph Lohay are father and son. They
had earlier on, in 1987, successfully instituted a suit in the court of Resident Magistrate at
Arusha for recovery of a piece of land they held under Customary Law. An eviction order
was issued and they were given possession of the piece of land in question. In 1992 the
Parliament passed a new law i.e. the Regulation of Land Tenure (Established Village)
Act, 1992 which came into force in December 1992.

This law, inter alia, declared the extinction of customary rights on land; prohibited
payment of compensation for such extension; ousted the jurisdiction of ordinary court of
law in all matters relating to the administration of the Act; terminated proceedings
pending in normal courts of law; prohibited enforcement of any court decision of decree
on all matters in respect of which jurisdiction was ousted; and established a tribunal with
exclusive jurisdiction.

The respondents were aggrieved by this new law and thus petitioned to the High Court
under Article 30 (3) and Article 26 (2) of the constitution of the United Republic of

73
Tanzania, for declaration that the new law was Unconstitutional and consequently null
and void.

The High Court of Tanzania at Arusha, presided by Munuo, J. granted the petition and
ordered the entire new law to be stuck off the statute book. The Attorney-General did not
agree with this decision and appealed to the Court of Appeal of Tanzania.

The court of Appeal in its decision first of all began by ascertaining the facts which were
not in dispute between the parties. These were: during colonial period the respondents
acquired a piece of land under customary law; between 1970 and 1977 there was a
country-wide operation known as Operation Vijiji, though which majority of rural
population scattered in various part of the country were forcefully moved into villagers,
the respondents were dissatisfied with the re-allocation exercise and that is way they
instituted the aforementioned suit. In 1987 a subsidiary legislation was made by the
government i.e the Extinction of Customary Land Rights Order, 1987 which had the
effect of extinguishing all customary rights in land in 92 villages listed in its schedule.
The respondents village was also covered by this by-law.

The central issue was whether customary rights in land (deemed rights of occupancy) are
constitutional rights recognized under the constitution and ought to be protected as
property.

The Court of Appeal held that: (1) the President holds public land on trust for the
indigenous inhabitants of this country; and as a trustee, his power is limited in that he can
not deal with public land in a manner in which he wishes or to the detriment of the
beneficiaries of that land; and he cannot be the beneficiary of public land; (2).
Customary or deeded rights in land are a real property protected by the Constitution and
their deprivation without fair compensation is prohibited by the Constitution; (3) the
provisions of the Act which oust the jurisdictional the courts of law and those giving
exclusive jurisdiction to the tribunal were unconstitutional for they offend the doctrine of

74
separation of powers enshrined in the Constitution; and (4) the trial judge was wrong in
striking down the entire statute after finding only four sections to be unconstitutional.

Judgment

Nyalali, C.J.
This case clearly demonstrates how an understanding of our Country’s past is crucial to a
better understanding of our present, and why it is important while understanding our
past, to avoid living in that past. The respondents, namely, Lohay Akonaay and Joseph
Lohay are further and son, living in the village of Kambi ya samba, Mbulumbumbulu
ward, Mbulu District, in Arusha Region. In January, 1987 the successfully instituted are
suit in the court of the resident magistrate for Arusha Region for recovery for a piece of
land held under customary law. An eviction order was subsequently issued for eviction of
the judgment debtors and the respondent were given possession of the piece of land in
question. There is currently an appeal pending in the high court at Arusha against the
judgment of the trial court, this is Arusha high court civil appeal No. 6 of 1991 while this
appeal was pending, a new law, which came in force on the 28th December, 1992 was
enacted by the parliament, declaring the extinction of customary right in land, prohibiting
the payment of compensation for such extinction, ousting the jurisdiction of the courts,
terminating proceedings pending in the court, and prohibiting the enforcement of any
court decision or degree concerning matters and respect of which jurisdiction was ousted.
The law also established, inter alia, a tribunal with exclusive jurisdiction to deal with the
matters taken out of the jurisdiction of the court. This new law is the regulation of land
tenure (established villages) act, 1992 hereinafter called Act No. 22 of 1992.
Aggrieved by this new law, the respondents petitioned against the Attorney-General in
the High Court, under Articles 30 (3) and 26 (2) of the constitutional of the United
Republic of Tanzania, for a declaration to the effect that the new law is unconstitutional
and consequently null and void. The High Court, Munuo J. granted the petition and
ordered the new law struck off the statute book. The Attorney-General, assisted my Mr.

75
Sass Salula, state attorney, appeal for the attorney General, whereas Messr. Lobulu and
Sang’ka, land Advocates, appeared for the respondent.

From the proceeding in this court and the court below, it is apparent that there is no
dispute between the parties that during the colonial days, the respondent acquired a piece
of land under customary law. Between 1970 and 1977 there was a country wide operation
undertaken in the rural area by the Government and the ruling part, to move and settled
the majority of the scatted rural population in to villages on the main land Tanzania. One
such village was Kambi ya simba village, where the respondent reside. During this
excise, commonly referred to as operation vijiji, there was wide spread re-allocation of
land between the villagers concerned. Among those affected by the operation were the
respondent, who are moved away from the land they had accrued during the colonial day
to another piece of land within the same village. The respondent were apparently not
satisfied with this re-allocation and it was for the purpose of recovering their original
piece of land that they instituted the legal action already mentioned. Before the case was
concluded in 1989, subsidiary legislation was made by the appropriate minister under the
land development (specified areas) regulations 1986, read together with the rural lands
(planning and utilization) Act, 1973, extinguishing all customary rights in land in 92
villages listed in a schedule. This is the extinction of customary land rights order, 1987.
the order vested the land concern in the respective district council having juridical over
the area where the land is situated. The respondents’ village is listed as number 22 in that
schedule. All the 92 villages listed under the order, including the respondents’ village, are
in area within Arusha region.

The Memorandum of Appeal submitted to us for the appellants contains 9 ground of

appeal, two of which, there is ground number 8 and 9 were abandon in the course of
hearing the appeal, the remaining 7 ground of appeal read as followed:
1. That the honorable trial judge erred imperfect and law in holding that eddied
rights of occupancy as defined in section 2 of the land ordinance is “property” for
the purpose of article 24 (1) of the constitution of the united republic of Tanzania
1977 and as such deprivation is un constitutional.

76
2. that the Honorable trial judge erred in law and fact in holding that section 4 of the
regulation of land tenure (establish villages) act 1992, precludes compensation for
un exhausted improvements.
3. that the honorable trial judge erred in law and fact in holding that any statutory
provision ousting the jurisdiction of the court is contrary to the constitution of the
united republic of Tanzania.
4. That the honorable trial judge erred in law by holding that the whole of the
regulation of land tenure (established village) act,1992 is unconstitutional.
5. that the honorable judge erred in law and fact in holding that the regulation land
tenure (established villages) act ,1992 did acquire the respondents’ land and
reallocated the same to other people and in holding the act was discriminatory.
6. that having declared the regulation of land tenure(established villages ) act, 1992
unconstitutional, the honorable judge erred in law in proceeding to strike it down.
7. the honorable trial judge erred in fact by quoting and considering a wrong and
non-existing section of the law.
The respondent on their part submitted two notes before the hearing of the appeal.
The first is an notice of motion purported under rule 3 of the Tanzania court of
Appeal rules, 1978 the second, is a notice of grounds for affirming the decision in
terms of rule 93 of the same. The notice of motion sort to have the court strike out the
grounds of appeal numbers1,5,8 and 9. after hearing both sides, we were satisfied that
the procedure adopted by the respondents was contrary to rules 45 and 55 which
require such an application to be made before a single judge. We therefore ordered
the notice of motion to be strike off the record.

As the notice of grounds for affirming the decision of the high court, it read as
follows:
1. As the appellant had not pleaded in his reply to the petition facts or points of law
showing controversy, the court ought to have held that the petition stands
unopposed.

77
2. since the respondents have a court decrees in their favour, the legislature cannot
nullify the said decree as it is against public policy, and against the constitution
of Tanzania.
3. as the respondents have improved the land, they are by that reason alone entitled
to compensation in the manner stipulated in the constitution and that
compensation is payable before their rights in land could be extinguished.
4. possession and use of land constitute “property” capable of protection under the
constitution of Tanzania. Act, No. 22 of 1992 is therefore unconstitutional to the
extent that it seeks to deny compensation for loss of use; it denies right to be
heard before extinction of the right.
5. operation Vijiji gave no person a right to occupy or use somebody else’s land,
hence no rights could have been acquired as a result of that “operation”.
6. the victims of operation Vijiji are entitled to reparations. The constitution cannot
therefore be interpreted to worsted their plight.
7. the land is the respondent’s only means to sustain life their rights therein life.
Their rights therein cannot therefore be extinguished or acquired in the manner
the legislature seeks to do without violating the respondents constitutional right to
life.

For purposes of clarity, we are going to deal with grounds of one by one, and in the
process, take into account the ground submitted by the respondents for affirming the
decision wherever they are relevant to our decision.

Ground number one raises an issue which has far-reaching consequences to the
majority of the people of this country, who depend on land fro their livelihood.
Article 24 of the constitution of the United Republic of Tanzania recognizes the right
of every person in Tanzania to acquire and own property and to have such property
protected. Sub-Article (2) of that provision prohibits the foretaste or expropriation of
such property without fair compensation. It is the contention of the Attorney-General,
as eloquently articulated before us by Mr. Felix Mrema, deputy Attorney-General,
that a “right of occupancy” which includes customary rights in land as define under

78
section 2 of land ordinance, 1922 is not property within the meaning of Article 24 of
the constitution and is therefore not protected by the constitution. The Deputy
Attorney-General cited a number of authorities, including the case of Amodu Tijani v.
The Secretary, Southern Nigeria and the case of Mtoro Bin Mwamba v. Attorney-
General. The latter arising from our own jurisdiction. The effect of these authorities is
that customary rights in land are by their nature not rights of ownership on land, but
rights to use or occupy land, the ownership of which is vested in the community or
communal authority. The deputy Attorney-General also contended to the effect that
the express words of the constitution under Article 24 makes the right to property
“subject to the relevant laws of the land.”

Mr. Lobulu for the respondents has countered Mr. Mrema’s contention by submitting
to the effect that whatever nature of customary rights in land, such rights have every
characteristic of property as commonly known, and therefore a fall within the scope
of Article 24 of the constitution. He cited a number of authorities in support of that
position, inlciding the Zimbabwe case of Hewlett v. The minister of finance and the
case of Shah v. Attorney-General (No.2) and the scholarly article by Thomas Alle,
lecturer in law, University of Newcastle, publisher din the international an
comparative Law quarterly.
Undoubtedly the learned trial judge, appears to have been of the view that customary
or demoded rights of occupancy are property within the scope of Article 24 of the
constitution when she stated in her judgment:

I have already noted earlier on that the petitioners legally posses the suit land under
customary land tenure under section 2 of the land ordinance cap 113. They have not
in this application sought any special status, rights or privileges and the court has not
conferred any on the petitioners. Like all other law abiding citizens of this country,
the petitioners are equally entitle d to basis human rights including the right to posses
the deemed rights of occupy they lawfully acquired pursuant to Article 24 (1) of the
constitution and section 2 of the land ordinance, cap 113.

79
Is the trial judge correct? We have considered this momentous issue with the judicial
care it deserves. We realize that if the Deputy Attorney-General is correct then most
of the inhabitants of Tanzania mainland are no better that squatters in their own
country. It is our duty to agree with the deputy attorney-General, without fear or
favour, after closely examining the relevant law and the principles underlying it.

In order to ascertain the correct legal poison, we have had to look at the historical
background o Tanzania. Since the establishment of British rule. This exercise has
been most helpful in giving us an understand on the nature frights or interests inland
on the mainland of Tanzania. This historical background shows that the overriding
legal concern o the British authorities, no bodily under the influent of the Mandate of
the League of National and subsequently of Trusteeship council, with regard to land,
was to safeguard protect, and not to derogate from, the rights inland of the indigenous
inhabitants. This Is apparent in the preamble to what was then known as the land
tenure ordinance, 1923 which came into force on 26 January, 1923. the preamble
reads:

Whereas it is expedient that the existing customary rights of the native of the
Tanganyika territory to use and enjoy the land of the territory and the natural traits
thereof in sufficient posterity should be assured, protected and preserved:
AND WHEREAS it is expedient that the rights and obligations of the Government in
regard to the whole of the lands within he territory and also the rights and obligations
of cultivators or other persons claiming to have an interest in such land should be
defined by law.
BE IT THEREFORE ENACTED by the Governor and commanded-in-Chief of the
Tanganyika territory as follows:

It is well know that after a series of minor amendment over a periods of time, the land
ordinance assumed its present title and form as the land ordinance, cap 113. Its basic
features is that all land is declared to be public land and is vested in the governing

80
statutorily on trust for the benefit of the indigenous inhabitant of this country. This
appears in section 3 and 4 of the ordinance.

The underlying principle of assuring, protecting and preserving customary rights in

land is also reflected under Article 8 of the Trusteeship Agreement, under which the
Mainland of Tanzania was entrusted by the united national to the British Government.
Article 8 reads:

In framing laws relating to the holding or transfer of land and natural resources the
Administering Authority who take into consideration native laws and customs, and
shall respect the rights and safeguard the interests, both present and future, of the
native population. No native land or natural resources may be transferred except
between native, eave with the previous consent of the competent public authority. No
real rights over native land or natural resources in favour of non-natives may be
created except with the same consent.

With this background in mind, can it be said that the customary or deemed rights of
occupancy recognized under the land ordinance are not property qualifying for
protection under Article 24 of the constitution? The deputy Attorney-General has
submitted to the effect that the customary or deemed rights of occupancy, thou in
ordinary parlance may be regarded as property, are not constitutional property within
the scope of Article 24 because they lack the minimum characteristic of property as
outlined by Thomas Allen in his article earlier mentioned where he states.

The precise content of the bundle of right varies between legal systems, but
nonetheless it is applied thought the commonwealth. At minimum, the bundle has
been taken to include the right to exclude others form the thing owned, the right to
use or receive income from it, and the right to transfer to others. According to the
majority of commonwealth cases, an individual has property once he or she has a
sufficient quality of these rights in a thing. What is “sufficient” appears to vary from

81
case to case, but it is doubtful that a single strand of the bundle would be considered
properly on its own.

According to the deputy Attorney-General, customary or deemed rights of occupancy

lack tow of the three essential characteristics of property. First, the owner of such a
right cannot exclude all others since the land is subject to the superior title of the
president of the united republic in whom the land is vested. Second, under section 4
of the land ordinance, the occupier of such land cannot transfer title without the
consent of the president.
With due respect to the Deputy Attorney-General, we do not think that his contention
on both points is correct. As we have already mentioned, the correct interpretation of
Section 4 and related sections above mentioned is that the president holds public land
on trust for the indigenous inhabitants of that land. From this legal position, two
important things follows.
Firstly, as trustee of public land, the president’s power is limited in that he cannot
deal with public land. In the words of section 6 (1) of the Ordinance, the president
may deal with public land only “where it appears to him to be in the general interests
of Tanganyika” secondly, as trustee, the president cannot be the beneficiary of public
land. In other words, he is excluded from the beneficial interest.

With regards to the requirement of consent for the validity of title to the occupation
and use of public lands, we do not think that the requirement applied to the
beneficiaries of public land, since such an interpretation would lead to the absurdity
of transforming the inhabitants of this country, who have been in occupation of land
under customary law from time immemorial, into mass squatters in their own
country. Clearly that could not have the intention of those enacted the land ordinance.
It is a well known rule of
interpretation that a law should not be interpreted to lead to a an absurdity. We find
support from the provisions of Article 8 of the Trusteeship Agreement which
expressly exempted disposing of land between the indigenous inhabitants from the
requirement of prior consent of the governing authority. In our considered opinion,

82
such consent is required only in cases involving disposition of land by indigenous
inhabitants or natives to non-natives in order to safeguard the interests on the former.
Were are satisfied in our minds that the indigenous population of this country are
validly in occupation of land as beneficiaries of such land under customary law and
any disposition of land between them under customary law is valid and requires no
prior consent form the president.

We are of course aware of the provisions of the land regulations, 1948 and
specifically regulation 3 which requires every disposition of a right of occupancy to
be in writing and to be approved by the president. In our considered opinion the land
regulations apply only to a right of occupancy granted under section 6 of the land
ordinance and have no applicability to customary or deemed rights of occupancy,
where consent by a public authority is required only in that case of a transfer by a
native to a non-native. A contrary interpretation would result in the absurdity we have
mentioned earlier.

As to the contention by the Deputy Attorney-General to the effect that the right to
property under Article 24 of the constitution id derogated from by the provision
contained therein expression which is to be found in other law. It is a fundamental
principle in any democratic society that the constitution is supreme to every other law
or institution. Bearing this in mind, we are satisfied that the relevant proviso means
that what is stated in the particular part of the constitution is to be exercised in
accordance with relevant law. It hardly needs to be said that such regulatory relevant
law must not be inconsistent with the constitution.

For all these reasons therefore we have been led to the conclusion that customary or
deemed rights in land, though by their nature are nothing but rights to occupy and use
the land, are nevertheless real property protected by the provisions of Article 24 of
the constitution. It follows therefore that deprivation of a customary or deemed right
of occupancy without fair compensation is prohibited by the constitution. The
prohibition of course extends to a granted right of occupancy. What is fair

83
compensation depends on the circumstances of each case. In some cases a re-location
of land may be fair compensation. Fair compensation however is not confined to what
is known in-law as unexhausted improvement. Obviously where there are
unexhausted improvements, the constitution as well as the ordinance land law
requires fair compensation to be paid for its deprivation.

We are also of the firm view that where there are no unexhausted improvements, but
some effort has been put into the land by the occupier, that occupier is entitled to
protection under Article 24 (2) and fair compensation is payable for deprivation of
property. We are led to this conclusion by the principle, stated by Mwalimu Julius K.
Nyerere in 1958 and which appears in his book freedom and unity Nyerere states,
inter alia:

When I use my energy and talent to clear a piece of ground for Amy use it is clear
that I am trying to transform this basic gift from God so that it can satisfy a human
need. It is true, however, that this land is not mine, but the efforts made by me in
clearing that land enable me to lay claim of ownership over the cleared piece of
ground. But it is not really the land itself that belongs to me but only the cleared
ground which will remain mine as long as I continue to work on it. By clearing that
ground I have actually added to its value and have enable it to be used to satisfy a
human need. Whoever then takes this piece of ground must pay me for adding value
to it through clearing it by my own Labour.

In the light of the provision of article 24 (1) and (2) of the constitution, section 3 and
4 of act No. 22 of 1992 violate the constitution by denying the petitioners the right to
go on possessing their deemed rights of occupancy and what is worse, denying the
petitioners compensation under section 3 (4) of Act No. 22 of 1992.

Like both sides to this case, we are also of the view that the learned trial judge erred
in holding that the provisions of section 4 of Act No. 22 of 1992 denied the petitioner
or any other occupier compensation for unexhausted improvements. The clear

84
language of that section precludes compensation purely on the basis of extinction of
customary rights in land. The section reads:

No compensation shall be payable only on account of loss of any right or interest in

or over land which has been extinguished under section 3 of this Act.

But as we have already said, the correct constitutional poison prohibits not only
deprivation of unexhausted improvements without fair compensation, but every
deprivation where there is value added to the land. We shall consider the
constitutionality of section 4 later in this judgment.

Ground number 3 attacks the finding of the trial judge to the effect that the provisions
of Act No. 22 of 1992 which oust the jurisdiction of the Courts from dealing with
disputes in matters covered by the act are unconstitutional. The relevant part of the
judgment of the High Court reads as follows:

The effect of section 5 and 6 of Act No. 22 of 1992 is to oust the jurisdiction of the
courts of law in land disputes arising under the controversial Act No. 22 of 1992 and
exclusively vesting such jurisdiction in land tribunals. Such ousting of the courts
jurisdiction by section 5 and 6 of Act No. 22/92 violates Articles 30 910, (3) (4) and
108 of the constitution.

The deputy Attorney-General has submitted to the effect that the constitution allows,
specifically under Article 13 (6) (a), for the existence of bodies or institutions other
than the court for adjudication of disputes. Such bodies or institutions include the
land tribunal vested with exclusive jurisdiction under section 6 of Act No. 22 of 1992.
we are grateful for the interesting submission made by the Deputy Attorney-General
on this point, but with due respect, we are satisfied that he is only partly right. We
agree that the Constitution allow the establishment of quasi-judicial bodies, such as
the land tribunal. What we do not agree is that the constitution allows the courts to be
ousted of jurisdiction by conferring exclusive jurisdiction on such quasi-judicial

85
bodies. It is basic structure of a democratic constitution that state power is divided
and distributed between three state pillars. These are the executive, vested with
executive power; the Legislature vested with legislature power, and the Judicature
vested with judicial powers. This is clearly so stated under Article 4 of the
constitution. This basic structure is essential to any democratic constitution and
cannot be changed or abridged while retaining the democratic nature of the
constitution. It follow therefore that wherever the constitution establishes or permits
the establishment of any other institution or body with executive or legislative or
judicial power, such institution or body is meant to function not in lieu of or in
derogation of those three central pillars of the state, but only in aid of and subordinate
to those pillars. It follows therefore that since our constitution is democratic, any
purported ousters of jurisdiction of the ordinary courts to deal with any justifiable
dispute is

Unconstitutional. What can properly be done wherever need arises to confer

adjudicative jurisdiction on bodies other than the court, is to provide for finality of
adjudication, such as by appeal or review to a superior court, such as the high court or
court of appeal.
Let us skip over number 4 which is the concluding ground of the whole appeal. We
shall deal with it late. For now, we turn to ground number 5. this ground relates to
that part of the judgment of the learned trial judge, where she states:
It is reverse discrimination to confiscate the petitioners deemed right of occupancy
and reallocate the same to some other needy persons because by doing so the
petitioners are deprived of their right own land upon which they depend for a
livelihood which was why they acquired it back in 1943.

86
There is merit in this ground of appeal. Act no.22 of 1992 cannot be construed to be
discriminatory within the meaning provided by the article 13 (5) of the constitution.
Mr sang’ka’s valiant attempt to show that the act is discriminatory in the sense that it
deals only with people in the rural areas and not those in the urban areas was correctly
answered by the deputy attorney-general that the act was enacted to deal with a
problem peculiar to rural areas. We also agree with learned deputy attorney-general,
that the act of extinguishing the relevant customary or deemed rights of occupancy
did not amount to acquisition of such rights. As it was started in the Zimbabwe case
of Hewlett v. minister of finance cited earlier where an extract of a judgment of
viscount diploma is reproduced stating : their lordship agree that a person may be
deprived of his property by mere negative or restrictive provision but it does not
follow that such a provision which leads to deprivation also needs to compulsory
acquisition or use.
It is apparent that, during operation vijiji what happened was that some significant
number of people were deprived of their pieces of land which they held under
customary law, and were given in exchange other pieces of land in the village
established pursuant to operation vijiji . this exercise was undertaken or in
accordance with any law but purely as a matter of movement policy. It is not
apparent why the government chose to act outside the law, when there was
legislation which could have allowed the government to act according to law, as it
was bound to. We have in mind the rural lands (planning and utilization ) act,
1973, which empowers the president to declare specified areas to regulate land
development and to make regulations to that effect, including regulations
extinguishing customary rights in land and providing for compensation for
unexhausted improvements, as was done in the case of Rufiji district under
government notice nos. 25 of 10th may, 1974 and 216 of 30th august,1974. the
inexplicable failure to act according to law, predictably led some aggrieved
villagers to seek remedies in the court by claiming recovery of the lands they were
disposed during the exercise. Not surprisingly most succeeded. To avoid the
unraveling of the entire exercise and the eminent danger to law and order, the land
development (specified areas ) regulations , 1986 and the extinction of customary

87
land rights order, 1987 extinguished customary land rights in certain villages in
Arusha region, including the village of kambi ya simba where the respondents
come from. We shall consider the legal effect of the government notice later in
this judgment.

For the moment we must turn to ground number 6 of the appeal. Although the
deputy Attorney-General was very forceful in submitting to the effect that the
learned trial judge erred in striking down from the statute book those provisions
of act no.22 of 1992 which she found to be unconstitutional, he cited no authority
and indicated no appropriate practice in countries with jurisdiction similar on
what may be described as the authority or force of reason by arguing that the
doctrine of separation of powers dictates that only the legislature has powers to
strike out a statute from the statute book. We would agree with the learned
deputy Attorney-General in so far as valid statutes are concerned. We are unable
on the authority of reasons to agree with him in the case of statues found by a
competent court to be null and void. In such a situation, we are satisfied that such
court has inherent powers to make a consequential order striking out such invalid
statute from the statute book. We are aware that in the recent few weeks some
legislative measures have been made by the parliament concerning this point.
Whatever those measures may be, they do not affect this case which was decided
by the high court a year ago.

Ground number 7 is next and it poses no difficult at all. It refers to that part of the
high court judgment where the learned trial judge states:

Furthermore section 3 (4) of Act No. 22 of 1992 forbids any compensation

on account of the loss of any right or interest in or over land which has been
extinguished under section 3 of Act No. 22 of 1992.

As both sides agree, the reference to section (4) must have been a slip of the pen.
There is no such section. The learned trial judge must have been thinking of

88
section 4 and would undoubtedly have corrected the error under the slip rule had
her attention been drawn to it.
We must now return to ground number 4. the genesis of this ground is that part of
the judgment of the trial court where it states:

For reasons demonstrated above the court finds that sections 3,4,5 and 6 of Act
No. 22/92 the regulation of land tenure (established Villages) Act, 1992 violate
some provisions of the constitution thereby contravening
Article 64 (5) of the constitution. The unconstitutional. The unconstitutional Act
No. 22 of 1992 is hereby declared null and void and accordingly stuck down…

The learned Deputy Attorney-General contends in effect that the learned trial
judge, having found only four sections out of twelve to be unconstitutional ought
to have confined herself only to striking down the four offending sections and not
the entire statute. There is merit in this ground of appeal. There is persuasive
authority to the effect that where the unconstitutional provisions of a statute may
be severed leaving the remainder of the statute functioning, then the court should
uphold the remainder of the statute and invalidate only the offending provisions.
See the case Attorney-General for Alberta v. Attorney-General for Canada and
Another.

In the present case, for the reasons we have given earlier, we are satisfied that
sections 3 and 4 which provide for the extinction of customary rights in land but
prohibit the payment of compensation with the implicit exception of unexhausted
improvements only are violative of Article 24 (1) of the constitution and are null
and void. Section 4 would be valid if it covered compensation for value added to
land within the scope of the Nyerere Doctrine of Land Value.

But as we have pointed out earlier in this judgment, this finding has no effect in
the villages of Arusha Region including Kambi ya Simba, which are listed in the
schedule to Government Notice No. 88 of 1987. the customary rights in land in

89
those listed villages were declared extinct before the provisions of the
constitution, which embody the Basic Human Rights because enforceable in 1988
by virtue of the provisions of section 5 (2) of the constitution of the constitution
(Consequential, Transitional and Temporary Provisions) Act, 1984. this means
that since the provisions of Basic Human Rights are not retrospective, when the
Act No. 22 of 1992 was enacted by the Parliament, there were no customary
rights in land in any of the listed villages of Arusha Region. This applies also to
other areas, such as Rufiji District where, as we have shown, customary rights in
land were extinguished by law in the early 1970s. bearing in mind that Act No. 22
of 1992, which can correctly be described as a draconian legislation, was
prompted by a situation in some villages in Arusha Region, it is puzzling that a
decision to make a new law was made where no new law was needed. A little
research by the Attorney-General’s Chambers would have laid bare the villages
concerned had been extinguished a year before the Bill of Rights came into force.
With due respect to those concerned, we feel that this was unnecessary panic
characteristic of people used to living in our past rather than in our presence
which is governed by a constitution embodying a Bill of Rights. Such behavior
does not augur well for good governance.

With regards to section 5 (1) and (2) which prohibits access to the courts or
tribunal, terminates proceedings pending in courts or tribunal and prohibit
enforcement of decisions of any court or tribunal concerning land disputes falling
within Act. 22 of 1992, we are satisfied, like the learned trial judge that the entire
section is unconstitutional and therefore null and void, as it encroaches upon the
sphere of the Judicature contrary to Article 4 of the constitution and denies an
aggrieved party remedy before an impartial tribunal contrary to Article 13 (6) (a)
of the same constitution.

The position concerning section 6 is slightly different. That section reads:

No proceeding may be instituted under this Act, other than in the Tribunal having
jurisdiction over the area in which the dispute arises.

90
Clearly this section in unconstitutional only to the extent that it purports to
exclude access to the courts. The offending parts may however be severed so that
the remainder reads, “proceedings may be instituted under this Act in the Tribunal
having jurisdiction over the area in which the dispute arises.” This would leave
the door open for an aggrieved party to seek a remedy in the courts, although such
courts would not normally entertain a matter for which a special forum has been
established, unless the aggrieved party can satisfy the court that no appropriate
remedy is available in the special forum.

The remainder of the provisions of Act No. 22 of 1992 including section 7, which
can be read without the provisions of Act No. 22 of 1992 including section 7,
which can be read without the proviso referring to the invalidated section 3, can
function in respect of matters stated under section 7 of the Act. To that extent we
hereby reverse the decision of the court below. As neither side is a clear winner in
this case, the appeal is partly allowed and partly dismissed. We make no order as
to costs.

91
 IN THE COURT OF APPEAL OF TANZANIA

AT DARE S SALAAM

MISC. CIVIL CLAUSE NO. 27 OF 1997

BARAZA LA WANAWAKE TANZANIA ………………. APPLICANTS

Versus

REGISTRAR OF SOCIETIES ………………RESPONDENTS

RULLING

SUBJECTS: Applications;
(i) For vacating the exparte, interim Injuction order and dismissal of application,
for temporary Injuction.
(ii) Application for temporary Injuction.

KATITI, J.

The practitioners -1- BARAZA LA WANAWAKE TANZANIA (BAWATA), -2- PROF.

ANNA KAJUMULO TIBAIJUKA, -3-SHRBAMU NASSER KABISA, -4- ROSE
TEMU MUSHI, -5- MARY CHONJO MAREALLE, and -6- SAINA KHATIN KAULI,
hence to be collectively called the petitioners applicants a constitutional petition, against
the -1- REGISTRA OF SOCIETEIS, -2- HON. ALI AMEIR MOHAMED – Minister for
Home Affairs and -3- HON. ATTORNEY GENERAL, hence to be called the
respondents, under articles 13(6), 18, 20 (1), 24, 26 (2) and 30 (4), of the Constitution
United Republic of Tanzania, and sections 4 and 5 of the Basic, Rights and Duties Act,
1994, and section 95 of the Civil procedure code, 1996. Pending the hearing and
finalization of the petition the petitioner/applicants Society BAWATA, till the application
for temporary Injuction, is heard inter parties, and finally the hearing and finalization of
the petition. On the 17/7/1997, my learned brother CHIPETA, J issued an exparte interim
Injuction order, restraining he respondents from the cancellation of the
applicants/petitioners society – BAWATA, Dutifully, Mr. Werema learned council
representing the respondents, filed an application supported by affidavit, seeking the
vation of the exparte interim Injuction order, and dismissal of the current application for
temporary Injuction, for reasons he dutifully gave, and reasons that will herein be visited,
each at opportune time.

An understand of the antecedents, or genesis of it all will probably illuminate our way,
and possibly highlight and spotlight the issues involved. After the gestational and concept

92
ional crystallization, of the idea of forming a women’s non-partisan society for their
women-folk development, that involved other national women celebrities, BAWATA
was born, and so legally born and registered, under the society ordinance Cap. 337, hence
to be called the ordinance, its birth certificate, Certificate of Registration, being dated
16/5/1995. No. SO 8408, the second to 6th petitioners/applicants, being the office bearers,
it is defying controversy, that, BAWATA almost immediately after birth, peeped into
doomsday, for it did not stand, the test and taste of time in its activities, as seen form the
pedestal of Government, for its activities were suspended by 17/9/1996, and conditions
imposed, that BAWATA’s constitution be amended, and by 5/6/1997, the Registrar of
societies, acting under section 12 of the ordinance, required BAWATA to show cause
why its registration should not be cancelled and when why and further particulars sought,
had not been given, or supplied, the said Registrar of societies, issued a notice of
cancellation, of the registration of BAWATA, on the 30/6/1997, advising the
petitioners/applicants, of their statutory right to appeal to the Minister for home Affairs,
within twenty one days, under section 13 of the Ordinance. Although the
Petitioner/applicants, put in motion, the process of appeal, and sought extension of
appellate period, for reasons give, see- BWATA’s letter dated 1/7/1997 Ref. No. BWT.
B57 ADMIN.SEN/97/09 –to the ministry, no response eminated there from, and hence
the petition, and this applications culminating therefrom. These are the facts, that defy
challenge, that are not susceptible to caprice, and facts that are not betraying the truth.

With the above antecedents, straight and clear, we shall now be more relevant by moving
form the periphery, to the relevant amplifications. Those applications are supported and
based on affidavits, and written submissions, the letter inherently thereby importing a
disadvantage of counsel to counsel, counsel to judge oral link, and possibility of
opportune oral clarifications, on pertinent matters. But having on my part, dutifully
examined, and rationalized, the pro and cons submissions, as pertinently touch the subject
matter, it is my humble view, that the legal controversy revolve and revolve around:

(i) Joinder parties – whether these were “Civil Proceedings as envisaged under
section 9 of the Government Proceedings Act 1967, and whether it was not
wrong to implead the minister for Home Affairs Hon. Ameir Mohamed, when the
Hon. Attorney General, was the one by such law to sue or, be sued, on behalf of
the Government.
(ii) Whether the source of power for the High Court to grant injections in
Constitutional Proceedings, is ORDER XXXVII of the Civil Procedure code.
(iii) Whether an Injuction could be issued against the Government?
(iv) Whether BAWATA was already dead i.e an illegal society when the applications
for exparte Interim and Temporary injunctions were filed.
(v) Whether the petitioners/applicants, before resorting to the petition, and or current
application, should have first exhausted the statutory appellant remedy provided
by section 13 for the ordinance.
(vi) What are the principles, or pre-conditions, fro the grant of a temporary Injuction.

I shall, I hope, treat exhaustively the above seriatim. Mr. Werema did gallantly, in so far
as joinder of the Minister of Home Affairs as a party is concerned, contend, that

93
 as in terms of Government Proceedings Act 1967, in particular section 9 thereof,
in any “Civil Proceedings” against, or by the Government, it is the Attorney
General, who is the part and that in the circumstance of the case, the Minister, as a
party be stuck out. It does seem that, this submission, was not hospitably received
by Prof. Shvji, who maintained, that such joinder issue, was premature, as such
issue trespassed, into the territory of jurisdiction, the lonely preserve of that
legally constituted constitutional court, that this court is not. He added, that even
if, the position was tenably otherwise, the Hon. Minister could be made apart,
under the provisions of section 7(3) of the Basic Rights and Duties Act 1994, a
self constrained statute, a statute independent of the Government proceedings Act
1967.

With respect, it must be appreciated, and I hope we do, that substantially, we are dealing
with, an application for a temporary Injuction, and that this question of joinder of
parties, whether under the Civil procedure code 1966, or under the Government
Proceeding Act 1967, or whether under the Basic Rights and Duties Enforcement
Act 2994 pertains, to pleading and drafting of plaint, or petition, as the case may
be, considering as to who can, and should be impleaded as defendant, or who is
necessary party. And a necessary part to me, would and should mean, a party
whose impleadment in the suit, or petition, is the one who is absolutely necessary,
for the determination of the controversy, between the parties, who helps the court
in passing the decree, or in completely deciding, the rights and liabilities of the
parties. Have been impleaded. Is whether, there is a breach of any pleading
provisions of law, or rules, which requires any one to be, or not to be joined, in
the array of parties, and whether such provisions are mandatory, or merely
directory. It is my sincere submission, that, since the question of parties and the
joinder thereof, pertain to the constitution of a plaint, or petition, it is party and
parcel of the suit, or petition, as framed, or as should be legally framed, the
impeachments, or amendment of which, is the preserve of the fully constitution
court, and not susceptible to interlocutory jurisdiction, and I would advise Mr.
Werema accordingly. However, without prejudice to the above position, I would
still decidedly add, that even if the joinder of parties, was not stalking
encroaching upon jurisdictional territory, section (5) of the civil procedure code
1966, has this to tell us loudly, and perhaps pre-emptily:

In the absence of any specific provisions, to the contrary, nothing in this

code, shall be deemed of procedure, presc4ribed by, or under other law for
the time being in force.

Avoiding, both judicial and legal haste, we have to realize, that such is a saving of
procedure prescribed in, or by other law, that rule obviously cover the provisions of
section 7(3) of the Basic Rights and Duties Enforcement Act, 1994, for the promotion of
the impleadment of the Minister. I would however, agree, with Prof. Shivji, that the issue
is at this juncture jurisdictionally premature, if also, not pertinent to the application, for a
temporary Injuction, or the resistance thereof, but all the same answered, if not
inadvertently.

94
That, the exparte application for temporary Injuction, and now the current application for
temporary Injuction inter-parties, were bad in law, as they were not based on the civil
Procedure Code ORDER XXXVII, Government proceeding Act, the proper application
of which, would have culminated -1- into notice being served upon the Attorney
General, should have been issued or should hence be issued, was the learned Mr.
Warema’s next front, for resisting the application. It would seem, Prof. Shivji not
impressed, nor amused by this submission, the Prof. refused to countenance it, maintain
that, the power to grant temporary Injuction, under the civil procedure code 1966 i.e.
under ORDER XXXVII, was just an instant in private law proceedings, and that the High
Court, in constitutional proceedings, or public law proceedings, its source of remedies,
whether final or interim, is the constitutional itself and under Basic Rights and Duties
Act and not the civil procedure code 1966, - ORDER XXXVII.

I have, to confess, seriously given commensurate consideration, to this fundamental and

important question, as we proceed, we are appreciating, that this is a constitutional
petition, brought under the constitutional provisions, and the basic rights and duties act,
already above cited, and this temporary Injuction application relates thereto. The
question here inevitably emerging for consideration, and whose answer is anxiously
awaited, is whether the civil procedure code 1966, in particular the Injuction provisions
ORDER XXXVII, are applicable to the proceedings, at hand, the constitutional petition.
In my view the answer that seem to emerge is negative.

For it is the view, I hold confidently, that the provisions of ORDER XXXVII of the
procedure code, 1966, apply to a suit, and in civil procedure, a suit is instituted by filling
a plaint, which is the first pleading in a civil suit, for the recovery of individual rights, or
redress of individual wrong, - see ORDERS 1 and 2 of the civil procedure code, 1966. on
the other hand constitutional proceedings, or petition is not a suit, for settlement of
private wrong, but a constitutional litigation, though put in motion by an individual, or
individuals, with a bearing, to give all the citizens, the full measure of justice, so
proclaimed on constitutional issues raised, avoiding the austerity of tabulated legalism,
enhancing principles of practical Government, and the National aspirations, of a free
democratic society.

The constitutional proceedings belong to the area of public law, and therefore the above
cited ORDER, is not applicable, as it is not meant to cater for constitutional matters, so
that any interim relief, in the interest of Justice desirable in constitutional proceedings
which are put in motion by filling of petitions and not suits, cannot legally spring from
ORDER XXXVII, which does not apply to petitions, which to repeat motorize
constitution proceedings.

Having, with respect, ruled above that the civil procedure code, 1966, is not the source of
power, of the High court to grant temporary injections or interim relief, the question 15,
what is the actual fountain of the High Court’s power, to grant such interim relief’s still
lingers on. My brother Mapigano, J. in that direction in the KAHAMA MINE’s case,
was of the view, that, the court, has original and independent jurisdiction, to issue

95
interlocutory relief orders. While I am not disagreeing with him in that regard, I have a
dutiful feeling, with respect to enlarge and throw more light on the source of the power.
The clear answer, is to be found in the judicature and application of laws ordinance Cat.
453 inter alia promulgating, and making a declaration, that the high court shall exercise
its jurisdiction……. In conformity with the substance for common law, the doctrines of
equity, statutes of general application, in force in England, on the twenty second day of
July, 1920. the above shows, that the high court form the time of its institution, and date
of reception has such equity powers and has jurisdiction to apply the same as are
necessary, to do right and undo the wrong. In other words, this power of equity court
include the power to grant interim relief, and admits of no acceptation with reference to
point of time, to which it an be made, and it is unnecessary to force unjustified fetters on
this power, which is even preserved by section 95 of the civil procedure code 1966 and
rightly pleaded by the applicants.

Observed persuasively, and loudly on this aspect section 151 of the India civil procedure
code, which is in parametrical with our section 95, was commented on by the Indian
supreme court, in the case of MANHAR LAL CHOPRA vs BAHADUR RAO RAJA
SETH HIRALAL, 1962 SC 527, 528 as hereunder follows:

Section 151 itself says, that nothing in this code, shall be deemed to limit, or otherwise
affect the inheriting power of the court, to make orders necessary, for the ends of justice.
In the face of such clear statement, it is not possible to hold, that the provisions of the
code, control the inherent power by limiting it, or otherwise affecting it. The inherent
power, has not been conferred upon the Court, it is the power inherent in the court by
virtue of its duty to do justice between the parties before it. Further when the code itself
recognizes the existence of the inherent power of the court, there is no question of
implying, any powers outside the limits of the codes.

Thus there being no such expression in section 94, which expressly prohibits, the issue of
temporary Injuction in circumstances, not covered by ORDER XXXIX o CPC, or by
any rules made under the code the courts have inherent jurisdiction to issue temporary
Injuction, in circumstances, which are not covered by the provisions of ORDER 34 PCP,
in the court is of opinion, that interests of justice require, the issue of such interim
Injuction.

What flows from the generality of the issue and the above, incontestably, is in my view
the following, and that is namely, -1- even at the risk of tautology, that the provisions of
ORDER XXXVII of the procedure code 1966 only apply to private suits and not to
petitioners for constitutional proceedings, -2- that the provision of the same ORDER
XXXVII are not exhaustive, -3- that the provision of the same ORDER XXXVII are not
constitutive, but recognatory of the power, to grant interim relief, -4- that the high court
as a court of equity, has inherent power to issue interim relief, and taking such powers as
recognized under section 95 of the civil procedure code 1966, and as read together with
section 8(3) of the Basic right and duties enforcement Act, 1994, it has jurisdiction to
issue such interim relief, as are appropriate for the purpose of enforcing, or securing the
enforcement of human rights, as enshrined in section 12 – 29 of the constitution. With

96
respect, after all is said, and written, I am sure that legal minded Thomases, now know
that even under the constitutional proceedings, this court has jurisdiction to issue interim
relief, appropriate for the enforcement of constitutional human rights provisions for the
protection of which the parties petitioning, are entitled, so that not only my learned
brother CHIPETA, J had jurisdiction to order the way he did, but to, it is an uncontestable
jurisdictional legal reality. My learned brother Chipeta J’s exparte interim order does not
therefore in law attract vacation as prayed.

Where assumptions, have taken dominion, they introduce they are blind effect, and hence
a disability not looking beyond ones nose. But implied in the application, floated by Mr.
Warema and his submission thereon had the import that the Injuction could not issue
against Government, does raise the question whether the Government, is immune from an
Injuction order regardless the source of power I suppose as the issue of source of power
has above been disposed of. I shall quickly answer this, in the negative, for two reasons.
Firs, it is the provisions of ORDER XXXVII, rule (2) that promulgate, that the court shall
only issue a declarato4ry order but not issue an Injuction order against the Government,
and I think Mr. Warema’s submission was a spillover effect of the above rule, whose
hangover, would, notwithstanding, wish to go beyond its prescribed boundaries. But as
above pointed out, such provision apply to private suits, and not to constitutional
proceedings, and will not pursue it further. Second Mr. Warema reminds me, of Henry
Brocton a Thirteen country celebrated lawyer, who said that Government, Kings, are not
above the law, but under Gods the law, since the law makes the king, Therefore, let the
King render to the law. What the law has rendered to the king namely, dominion and
power, for there is not king where will prevails, and not the law.

In my view the ideal of Government under the law, that inspired

Bracton, is still true and even stronger, and hence now axiomatic,
that the Supremacy of the law – Rules of Law, is the cornerstone of
democracy and nobody should set himself above the
instrumentalities, appointed by the Constitution, for the
administration of law. While it is conceded, that, while performing
the essential functions of maintaining public order, and security of
the nation, the state is different from other person, whether natural
or artificial, that excepted, the law applies to citizens as well as the
State, a construction that in my view is consistent, with the
Philosophy of equality enshrinent in our Constitution. Of course,
this is without prejudice, to passing a law expressly, or by
necessary implication, exempting the State, from its operation,
provided is does not infringe, or trespass, upon fundamental rights
but after any legislative process, the Government should not be
heard to be bound by the law as a matter of grace, or option, but
obey it upon dominion of expediency. And when we Government
leaders mount the restrum and take oath to guard the Constitution
and the Laws made thereunder it is not a ritual, it is a dutiful and

97
serious matter and article 26 of it, says it must be guarded and
obeyed. And to say that the Government cannot be served with an
injunction process is anachronistic. Going back to the contention,
it is uncontestable in my view, that sections (2) and (7) of the Basic
Rights and Duties Enforcement Act, 1994, as read together with
Article 30 of the Constitution, the Government is an impleadable
party, in the enforcement of human rights as enshrined in Articles
12 to 29 of the said Constitution, and considering, that the duty to
pay obedience to, and Guard the Constitution lies on us all, it
follows that, when the Government’s potential to interfere with, or
to transgress upon or continue threatening the violation of such
human rights, it is only fair and logical, that the Court uses its
extra-ordinary jurisdiction, to issue temporary injunction, on
interim relief, for the protection of such human rights, as
threatened, till the finalization of the petition. I is my possible to
maintain human dignity, where the fundamental human rights and
freedom, should be beyond the reach of legislative majorities, and
executive decisions. In my conclusive considered view it is not a
cry from a wildness, that it should no longer be considered
sacrilege, or heresay, to say once again, that a Court has
jurisdiction to issue temporary injunction against a Government, if
it consider necessary and appropriate for the interests of justice, in
the enforcement of fundamental human rights which are likely to
be enormously weakened, unless injunctive interim reliefs, against
the Government, which in its vast and complex machinery, in one
way or another, even inadvertently, encroaches on the rights of
citizens are issued, also see HOME OFFICES CASE (1993) 3 WLR
433 at p.456. Mr. Werema will therefore join issues with me, on
this aspect.

For issue No.4 basically Mr. Werema has, a significant import

from para 6(1) of his affidavit, that the court was and this court is
seized of the application, for exparte interim injunction, and I
suppose the current application for temporary injunction when
BAWATA, as society, has seized to exist and that its cancellation
before the injunction order, was issued, rendered the order
nugatory and the current application equally affected. Of course
Prof. Shivji countered this at considerable length and I need to
repeat what the tow Counsels said at full length. Accurate date,
and or history, are hardly capricious, if not fraudulently
manipulated, and indeed, the record shows that, BAWATA, was
cancelled on the 30/6/1997, and such cancellation communicated

98
to BAWATA’s Secretary General who in such communication was
informed of the society’s right of appeal, within twenty one days,
meaning that the appellate period, would expire about 20th of July,
1997. but, it is equally beyond controversy, that, by 2/7/1997, the
Principle Secretary, Ministry of Home affairs, received the Society’s
Precautionary letter Ref. No. BWT.B57/ADMI.GEN/97/09 of
2/7/1997 expressing intention to appeal, and praying for extention
of the appellate period, as BAWATA office bearers and the Society’s
Advocate were on safari. In the mean while an application for an
exparte interim injunction was successfully pursued, and hence
the exparte injuction order dated, and issued on 17/7/1997 by
CHIPETA, J. The question provoked by Mr. Werema is whether by
the date of such order, the Society has seized to legally exist. The
question given deserving attention seems to yield a negative
answer, and I have the following reasons. First the Society
aggrieve, by the Registrar of Society’s cancellation of its
registration, under section 13 of the Society’s Ordinance Cap. 337,
has a statutory right of appeal, against such cancellation to the
Minister of Home Affairs, within twenty one days or such as period
of time, as upon application may have been extended. Second, the
question is whether during the appellate period the Society is an
illegal society? In my view during the appellate period the
cancellation falls into abeyance till the decision of the appeal for
…… as pointed out by Pro. Shivji, immediately as an unlawful
society, it would be provoking the legal wrath of criminal sanctions,
under section 12A of the ordinance, as the officers or office bearer
would be acting illegally, the appeal provisions would thereby be
defeated, contrary to the intentions of the legislature. Third,
section 2 and 13 read together, show that an unlawful society,
Inter alia means any local Society, other than a local society in
respect of which an appeal has been lawfully made to the Minister
under section 13, and remains undetermined, it follows in my view,
that the date of the Interim injunction order 17/7/1997, when the
BAWATA appellate process was already in motion, but still
undetermined, it was not unlawful society, it had as much legal
competence to appeal, as it was actually doing, and even seeking
temporary injunction. It would beat both schooled logic and
common sense, to assert that it was then alive to persue, its rights
of appeal to the Minister but dead for the purpose of applying, and
obtaining an interim injunction order. The argument by Mr.
Werema, therefore fails on this aspect.

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 The respondents Council, Mr. Werema, further gallantly
argued, that the petitioners applicants should have challenged the
constitutionality of the Society’s Ordinance Cap. 337, separately,
from the temporary injunction by appealing to the Minister, first.
On the other hand, Prof. Shivji maintained that, the application for
temporary injunction is inextricably tied to the grounds, which in
the Petition challenge the constitutionality of some of the provisions
of the Society’s Ordinance, and that even the appellate authorities,
demonstrated a scanty regard to the appellate process, which to
their knowledge was already in motion and time was closing in, to
their prejudice. They were look-warm about it, so went the
submission.

I have, dutifully and purposefully, considered this issue,

whether the petitioners/applicants should have fully first satisfied
the appellate alternative, or whether failure to resort to such
alternative appellate remedy, is a bar to the Petitioner/Applicants,
to resort to the High Court jurisdiction. Mr. Warema’s submission
re-visited, is obviously luringly attractive as look at, it seems
consistent with, what was observed by the Indian Supreme Court,
in the Case of KASSAM IBRAHIM vs CHUDASAMA A. 1956 BOM.
544 (547), thus

“It is well settled beyond doubt, that if the law provide

adequate legal remedy, which remedy is as efficacious,
as the remedy, as this Court can give under the
Constitution, then the petitioner must exhaust that
remedy, before he comes to this Court, for exercise of its
special jurisdiction, under Articles 226 and 227” (Write
and High Court Superintendence Jurisdiction Articles –
Indian Constitution).

But, the same Supreme Court, of course in a different set of

circumstances, had the following to observe, in the case of RAM
CHANDER SINGH, vs STATE OF PUNJAR, AIR PUNJ (68), A PUNJ
178, thus, and I quote:

“It has been authoritatively held that, the plea of alternative

remedy is not an absolute bar, to the maintainability of a writ
partition, and the said plea has to be decided, on the acts and
circumstances of each case, where it is raised.”

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 From the above persuasive cases, I am moved by their
commonsense, legal logic, and I am minded to hold the following.
First, the legislature in its legislative wisdom, may provided for
statutory alternative remedy, second failure to exhaust such
alternative remedy, is depending on the circumstances of the case,
not a bar to the maintainability of a writ – partition, and third, it
would in my view, seem that, the rule of exhaustion of alternative
remedy is a rule of convenience, and discretion, the latter being
exercised judicially, and fourth, such alternative remedy must
convenient, expeditions and efficacious.

However, having said, written and submitted as above, I would

hurriedly but fundamentally change course concede exceptions and
submit, that considering the paramount of fundamental human
rights, whose transgression is alleged here, it would seem to me,
that the alternative remedy doctrine, has hardly any relevance,
where the matter it involves the Constitutionality of statute,
effecting the said fundamental human rights, the determination of
which, would not be within the jurisdiction of subordinate Courts.
And if I may be allowed to add, another exceptional circumstance,
as I can see it, I would say, it is futile an exercise, and for want of
better name, to call it an alternative remedy, to drive a party to a so
called alternative remedy, when the instrumentality, or organ for
which has prejudged the …….. the authority whose order is
impugrad og /has acted under the general, or speed directions of
the said authority or there is a real likelihood of bias in that
direction, or actual administration, or odispesantation of the
remedy. Thus may I be allowed to maintain that exhaustion of
alternative remedy is not in anyway of absolute demand, there are
sometimes clear cut, situations, where fairness would compel the
non-use of the alternative remedy option.

Coming into the Arena to apply the above to the facts in point,
as disclosed, by the affidavits and written submissions, as generally
unchallenged, I get a clear and vivid position, that the cancellation
of the Society’s registration is inextricably inter with the Ordinance,
and the rules made thereunder, the appellate authority, the
Minister is the Ministerial boss of the Registrar of Societies, and his
powers are derived from the very Ordinance, whose the
Constitution is being challenged; constitutionality post –
commencement of and I am satisfied that it makes sense to kill two
birds with one stone, but more importantly this could have pre-

101
emptied possible negative legal consequences, attendant to the
eventuality of the Minister dismissing the appeal. Adding to this
interesting intricate relationship, is the fact that BAWATA’s letter,
to the Principal Secretary, was expeditiously deltwith, as to imply
likelihood of bias, for, while the Principle Secretary’s office, received
BAWATA’s appellate letter on 2/7/1997, by 17/7/1997, it had not
been acted upon, and yet the clock had ticked its days off, almost
to a finish my judgment, on the possible motive, I am entitled to be
loud and clear, that, the so called alternative remedy was thrown
with thorns and almost impassable, and the applicants can not be
faulted for the options they took. And lastly but very important,
the mother Ordinance’s Constitutional status is being fractioned,
and if successfully, falling with it would be any subsidiary
legislation there under, equally repugnant or inconsistent, with the
Constitution, it is my submission, that the option taken by the
applicants, was flawless.

I shall now come to the Temporary injunction question. With

respect, as regards to the injunction, I think Mr. Werema, had put
his eggs in one basket, in his application, thereby perhaps, trying
to hit two, or more birds with, one stone. He argued that, since the
date of the interim exparte injunction order 17/7/1997, the Society
had ceased in exist them if accepted, the exparte interim injunction
order, be vacated and the current application for temporary
injunction dismissed. It would seem, that for reasons given above,
the exparte interim injunction order, was in order and cannot be
vacated, for it was neither obtained by fraud, nor was the society
unlawful, during the statutory appellate period as it was capable of
legally persuing its rights. It follows that Mr. Werema, did not
otherwise, and without prejudice, even reversely oppose the
application for temporary injunction, the application for temporary
injunction therefore seems to meet no resistance.

But earnestly, and with respect, I would be fast to add that Mr.
Werema was amply alert, to submit that, the Principles governing
the grant of a temporary injunction, had not been satisfied, i.e.
among others, the establishment, of a Prima facie case, of breach of
duty, sitting the case R.V. KENSIMGTON & CHELSEA ROYAL
L.B.C. EXP. HAMMEL AND R. v. WASTMISTER CITY COUNCIL
EXP. AUGUSTIN (1993) I.W.L. R.760.
I must confess fully, tint I had not the advantage of reading the
above case because of its in availability, but, I am of the unshaken

102
opinion, that where the Court used its original inherent
jurisdiction, i.e. power of equity, that is outside the ambit of
ORDER XXXVII of the Civil Procedure Code, 1996, the pre-
conditions for exercising such jurisdiction under the said order, do
not strictly apply. It is my submission, however that where a party
seeks a temporary injunction from the Right Court, in its
application of its original and inherent satisfy three conditions
namely -1- the applicant must all the same, have made out, a
strong prima facie case, and -2- the balance of convenience must
be in favour of granting, an order thereunder, and -3- whether it is
consistent with public policy, and or public interest.
The onus of proving prima facie case, and balance of convenience,
falls on the shoulders of the applicants, they must show the
existence of Constitutional legal problems raised, in the litigation,
and that the balance of convenience is in their favour, or that, the
inconvenience, or disadvantage likely to be suffered, for exceed that
of their opponents, in the event of refusal, to grant exceed, that of
their opponents, in the event of refusal, to grant the prayer. And
may I add that the Court should in its institutional wisdom, be
alert, not to be used, as an instrument, or tool, to cause injury, or
loss to Society, for the instrument of society, demands of society,
must be considered, but justice prevail at the end of the day.

How then, do the above apply to the circumstance of this

case.
This application is a by-product, of a Constitutional petition under
article 13(6), 15, 18, 20(1), 24, 26(2) and 30(4) of the Constitution
of the United Republic and section 4 and (5 of the Basic Rights and
Duties Enforcement Act, 1994 questioning the constitutionality of
the Society Ordinance Cap.337, and the powers exercisable
thereunder. This came in the wake of the applicants Society being
cancelled from the Register of the Registrar of Societies. It is with
trepidation and fear, lest I encroach upon a prohibited territory of
jurisdiction, that I observe, that, there is generally, a presumption
in favour of constitutionality, of statute, and a law will not be
declared unconditional unless the case, is so clear, as to be free
irom doubt. BAWATA, as a society was cancelled and the members
are alleging, a violation of their constitutional rights and therefore
aggrieved. It is constitutionally speaking, that a person who
asserts and give facts that because of the alleged
unconstitutionality, his or her interests have been adversely
affected, or stand in real, or imminent danger of, being affected, by

103
the operation of the statute must not be hindered. As a philosophy
of democratic Government, democracy asserts the supreme worth,
and dignity, and creative capacity of every individual human being,
and the State exists to enable citizens to fulfill their natural man.
But this man, within the law, enters into relations with his fellow
beings, at many levels, and is it not a phenomenon of human
beings to form groups, none of which however, not even the state,
exhausts his social needs. In other words, the development of man
generally requires a plurality of autonomous communities, having
their own rights, their own freedoms, and their own authorities as
guaranteed by the Constitution. Having on my part read the
papers and the submissions, I am decidedly of the view, that when
such rights are allegedly transgressed, I think that a Prima facie
case has been established beyond a shadow of doubt, that there is
perhaps a constitutional question to be determined. On the
balance of convenience, it is clear to the tall and short, that refusal
to grant temporary injunction would be disastrous to BAWATA, and
members thereof, for refusal to grant the relief would mean death
sentence, with serious consequences, under section 12A of the
ordinance, thereby throwing the partition in total jeopardy, without
competent authority to pursue it in this form, and from the citizens
perspective, this would not only be a loss of opportunity for the
crucible test of the operations of their constitution, but also a loss
of opportunity of their training in their Constitution in un-
obstructed liberty. If our democracy though young, is yet
educated, if our Parliament though young is less alert and yet to
learn, if our Executive is to know more about Constitution
principles, upon which they take oath then on the balance of
convenience, all are not only eager to learn, but also, to test out
young Constitution and advance the constitutional principles
involved, and the Court having played its dutiful role, its duty ends
there. From the above, I am satisfied that the applicants /
petitioners, have made out a case for a temporary injunction, and it
is hereby ordered, that BAWATA in the interests of justice, shall
remain uncancelled, nor be otherwise interfered with, till the
Constitution partition, is heard and finally decided.

Delivered this 4th day of March, 1998.

E.W. Katiti

104
 Judge

Court: Now case to be referred to the Hon. J.K for re-assignment to

the Judges to hear the petition according to law.

E.W. Katiti
Judge
4.3.98

IN THE COURT OF PEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: KISANGA, J.A. KUBUVA, J.A AND SAMATTA, J.A)

CRIMINAL APPEAL NO. 21 OF 1997

BETWEEN

THE DIRECTOR OF PUBLIC PHOSECUTIONS ………….

APPELLANT

105
 AND

ANJELINA OJARE ……………………………. RESPONDENT

(Appeal from the judgment of the High Court of Tanzania at
Arusha)

(Nchalla, J.)

Dated the 24th day of March, 1997

In
Criminal Appeal No. 31 of 1996

JUDGEMENT OF THE COURT

KISANGA, J.A.:

The appeal arises from the judgment of the High Court

(Nchallo, J.) which upheld and affirmed the ruling of the resident
magistrate’s court granting bail to the respondent.

The background to the case may be set out briefly as follows:

The respondent applied to the Resident Magistrate’s Court for bail
under section 148 (1) of the Criminal Procedure Act. The
application was made at a time when proceedings of a preliminary
enquiry into a charge of murder against the respondent were
pending in that court. The application was resisted by the
prosecution on the ground that under section 140 (5) (a) of the
Criminal Procedure Act the offence of murder is not vailable, and
that in any case the Resident Magistrate’s Court has no jurisdiction
to grant bail in respect of murder which was not trouble by that
Court. The magistrate overruled the objection and granted bail.
The Director of public Prosecutions appealed unsuccessfully to the
High Court which as …… / stated, affirmed the decision of the
resident magistrate’s a court, hence the present appeal to the
Court.

Before us the appellant Director of Public Prosecutions was

represented by Mr. K.M. Mussa, learned Principal State Attorney,
while the responded was advocated for by Mr. A. Mgwal, learned
advocate. Counsel pointed out that a nolle prosequi in respect of

106
the charge had already been entered on behalf of the Director of
Public Prosecutions, and that this appeal was now intended only to
set the record right.

The memorandum of appeal contained the following grounds:-

1. That the leaned Judge erred in assuming jurisdiction

over a matter falling within the provisions of articles 12
to 29 of the constitution without complying with the
provisions of the Basic Rights Duties Enforcement Act.

2. That the Learned judge erred in law in granting bail

contrary to section 148 (5) (a) of the Criminal Procedure
Act.

3. That the learned Judge erred in holding that section

148 (5) (a) of the Criminal Procedure Act violates articles
13 (6) (b) and 15 (2) (c) of the Constitution and that the
same cannot be applied and enforced by the courts.

4. IN THE ALTERNATIVE to ground 2 hereinabove the

learned Judge non-directed himself on the position of
the law as it existed before the enactment of section 148
(5) (a) before upholding and affirming the decision of the
subordinate court.

“9 – (1) where in nay proceedings in subordinate court

any question arises as to the contravention of any of the
provisions of a section 12 to 29 of the Constitution, the
presiding magistrate shall, unless the parties to the
proceedings agree to the contrary or the Magistrate is of
the opinion that the raising of the question is merely
frivolous or vexatious, refer the question to the High
Court for decision; save that if the question arises
before a Primary Court the magistrate shall refer the
question to the court of a resident magistrate which
shall determine whether or not there exists a matter for
reference to the High Court”

The learned judge, however, rejected the submission, proceeded to

consider the constitutionality of section 148 (a) and eventually
upheld the decision of the trial magistrate which had granted bail

107
holding, in process, section 148 (5) (a) to be inconsistent with the
Constitution.

In rejecting the submission the learned judge referred to

sections 4, 5 and 10 of the Basic Rights and Duties Enforcement
Act.

Section 4 provides:-

“4. If any person alleges that any of the provisions of sections 12 to

29 of the Constitution has been, is being or is likely to be
contravened in relation to him, he may, without prejudice to any
other action with respect to the same matter that is lawfully
available, apply to the High Court for redress”.

Section 5 provides in effect that on aggrieved person who goes to

the High Court for redress pursuant to section 4, shall do so by
filling a petition to the court. Then section 10 (1) provides that:-

“10 (1) For the purposes of hearing and determining any

petition made under this Act including references made
to it under section s, the High Court shall be composed
of three Judges of the High Court save that the
determination whether an applications in frivolous,
vexatious or otherwise fit for hearing may be made by a
single Judge of the High Court”.

The learned judge, therefore took the view that although the matter
before him was not an application by way of a petition under
section 5, he was nevertheless, entitled to deal with it pursuant to
the option under section 4 whereby the aggrieved party could take
any other action, like the appeal in the instant case. And since he
was dealing with the matter as an appeal, he was again entitled to
sit as a single Judge, and so the requirement of three Judges
section 10 (1) did not arise.

With due respect we cannot agree with the construction put

by the judge on section 4 of the Act. We do not think that the
expression “……….. any other section …….” In the instant case, for
example, the aggrieved person was Mrs. Ojare on whose behalf it
was alleged that section 146 (5) (a) of the Criminal Procedure Act

108
was violative of her basic right as guaranteed by Articles 13 (a) (b)
and 15 (1) of the Constitution.

In terms of section 4, therefore, it was Mrs. Ojare who had the

option whether to go to the High Court or to take any other action
lawfully available to her for redress. When the matter went to the
High Court, however, this was not at the instance of Mrs. Ojare. It
wa a t the instance of the Director of Public Prosecutions who was
alleging, not that section 148 (5) (a) was violative Mrs. Ojare’s basic
right but, that the district court had no competence to consider and
decide on the constitutionality of that section. In other words the
allegation or complaint by Mrs. Ojare and that by the Director of
Public Prosecutions differed completely from each other. In the
circumstances, therefore, it is plain that Mrs. Ojare has neither
applied to the High Court for redress under section 4 of the Basic
Rights and Duties Enforcement Act, which would involved filling a
petition to that court under section 5 of the same Act, nor has she
exercised any other option which was lawfully available to her. In
other words the appeal to the High Court cannot be regarded as
any other action which was lawfully available to Mrs. Ojare as the
learned judge thought. Because the appeal was not at the instance
of Mrs. Ojare and it was not alleging any infringement of her basic
right. Ever assuming that Mrs. Ojare had lost in the district court
and then appealed to the High Court, this could not have
amounted to her exercising another action or option lawfully
available to her in terms of section 4. Because at that stage Mrs.
Ojare, having thus lost the action in the district court, would have
only one option lawfully open to her, anyway, and that is to appeal
to the High Court. No other option would be lawfully open to her
and therefore the provision would be meaningless.

We think that the expression “any other action …… lawfully

available ……” as used in section 4 applies to situations where an
alleged wrong, though capable of being redressed as a violation of a
basic right under the Constitution, the victim of it, nevertheless,
opts to seek redress under the ordinary law. Take, for instance, the
wrong of unlawful confinement. A person who complains of it may,
in terms of section 4 apply to the High Court for redress or institute
criminal or civil proceedings under the ordinary law.

Thus we are satisfied that there was non-compliance with the

provisions of sectin4 of the Basic Rights and Duties Enforcement

109
Act. The complainant on whose behalf it was alleged that section
148 (5) (a) of the Criminal Procedure Act was violative of her basic
right as guaranteed under Articles 13 (6) (b) and 15 (1) of the
Constitution neither applied to the High Court, nr exercised any
other option which was lawfully available to her for redress. The
learned judge therefore erred in failing to hold that there was such
non-compliance.

The view we take of the matter is that when the issue of

constitutionality of section 148 (5) (a) was raised in the district
court, the trial magistrate should have proceeded in accordance
with the procedure laid down under section 9 (1) of the Basic
Rights and Duties Enforcement Act reproduced earlier in this
judgment. Under that procedure the magistrate had a duty to refer
that issue to the High Court for decision unless:-

(a) the parties agreed to the contrary,

or

(b) the magistrate was of the opinion that the raising of that
question before him was merely frivolous or vexatious.

Neither (a) nor (b) was applicable in this case, and so the trial
magistrate had no option but to refer the question to the High
Court for decision . this he did not do; he considered the questions
himself and decided on it. Obviously, in terms of section 2 (1) of
the Act he had no competence or jurisdiction to do so. To that
extent, therefore the proceedings were null and void, and the
learned judge should have held so.

Mr. Mgwal submitted that section 9 (1) of the Basic Rights

and Enforcement Act was not applicable because it was
inconsistent with section 4 of the same Act quoted above. He
contended that the use of the word “may” in that section meant
that an aggrieved person has the option whether to go to the High
Court or to a subordinate court for redress and that his client had
opted to go to the district court. We noted, by the way, that this
line of argument is different from that adopted by the learned judge
who maintained that the complainant had referred the matter to
the High Court through an appeal. The true position however, is
that Mrs. Ojare did not go to the resident magistrate court to seek
redress of a violation of her basic right. She simply applied for bail

110
in that court, and in the course of arguing the application by the
parties or their representative, the issue of constitutionality of
section 148 (5) (a) of the Criminal Procedure Act arose. Then the
point is that once the resident magistrate court had taken
cognizance that a constitutional question has thus arisen, it had a
duty to refer such question to the High Court for decision because,
as has been demonstrated above, the conditions specified under s.
9 (1) for displacing that duty were non-existent.

In yet another attempt to show that section 9 (1) had no

application here, Mr. Mgwai contended that in any case that
provision sought to derogate from Article 30m(3) of the
Constitution. The unofficial English version of that provision says
that:-

“3 (3) Any person alleging that any provision in this Part

of this Chapter or in any law concerning his right or
duty owned to him has been, is being or is likely to be
violated by any person any where in the United
Republic, may institute proceedings for redress in the
High Court.”

Counsel reiterated the contention that the word “may” as used in

the provision meant that the aggrieved person had the option or
discretion whether to go to the High Court or to the district court
for redress, and consistent therewith his client opted to go to the
district court. Therefore, in his view, section 9 (1) of the Act cannot
now be invoked to defeat or derogate from Article 30 (3) of the
Constitution, the supreme law of the land.

The answer to this is that sub-article (3) of Article 30 of the

Constitution must not be read in isolation. It has to be read
together with sub-article 4 (a) of the same Article, again the
unofficial English version of which reads:-

“30 (4) subject to the other provisions of this

Constitution, the High Court shall have original
jurisdiction to hear and determine any matter brought
before it pursuant to this Article; and the state authority
many enact legislation for the purpose of –

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 (a) regulating procedure for instituting
proceedings pursuant to this Articles;”

pursuant to this sub-Article, Parliament enacted the Basic Rights

and Duties Enforcement Act, so as that sub-Articles (3) and 4 (a) of
the Constitution have now to be read together with this Act. When
that is done, the import is that a person who complains of a
violation of his basic right has the option whether to seek redress
in the High Court by filling petition in that court, or to take any
other action lawfully available to him such as instituting a civil suit
under the ordinary law to recover damages, say, for unlawful
confinement. But where in the course of nay proceedings in the
subordinate court the issue of violation of basic right of a party
arises, then the trial magistrate must refer such question to the
High Court for determination. However if he parties agree that the
question should not be referred to the High court, then the
magistrate may proceed under the ordinary law to dispose of the
suit or proceedings before him. Again if, on that question being
raised in the district court, the magistrate is of the opinion that the
raising of it is merely frivolous or vexatious, then he can overrule it
and proceed to conclude the proceedings under the ordinary law.
His decision on whether the raising of the question was frivolous or
vexatious is ………….of …………
of High Court.

It follows, therefore, that the trial magistrate had no

competence or jurisdiction to hear and decide on the
constitutionality : section 148 (5) (a) of the criminal Procedure Act
which was raised before him. That was a matter to be referred to
the High Court for decision, which was not done. To the extent of
such omission or error, the proceedings in the district court were
null and void.

That then settles the first ground of appeal. Since the other
grounds of appeal arise from matters which ware purportedly
decided on by the district court and affirmed by the High Court, it
follows that the decision of the High Court was had in law in as
much as it was based on a nullity. It purported to be based on a
matter which was no decision at all or which did not exist in law. It
is, therefore, not necessary to consider the other grounds of appeal.

112
 In the result the appeal by the Director of Public Prosecution
is allowed. The judgment of the High Court is quashed, and the
ruling /order of the district court is declared null and void.
Ordinarily we would have sent the matter back to the district court
for continuation of the hearing of the matter according to law from
the stage immediately following the raising of the constitutional
issue before that court. However, such course of action is now
overtaken by the event in the light of the role prosequi which was
entered in this case.

D. …………………….. this 1st day of July, 1996

R.H. KISANGA
JUSTICE OF APPEAL

D.Z. LUBUVA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

(N.M. MWAIKUGILE)
SENIOR DEPUTY REGISTRAR
…………………………………….

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 CA/86/35

IN THE COURT OF APPEAL OF TANZANIA

AT DARE S SALAAM

CORAM: MUSTAFA, J.A; MAKAME J.A And KISANGA. J.A

CIVIL APPEAL NO. 1 OF 1986

HAMISI ALLY RUHONDO & 115 OTHERS. APPELLANTS

VERSUS

TANZANIA –ZAMBIA RAILWAY AUTHORITY … RESPONDENT

(Appeal form the Order and Decision of the High Court of Tanzania at Dar es Salaam)
(Lubuva, J) Dated the 26th day of October, 1985

In
Misc. Civil cause No. 7 of 1985
JUDGMENTS OF THE COURT

MAKAME, J.A.;
The appellant in this appeal, HAMISI ALLY RUHONDO AND 115 OTHERS, were
employed by the respondent, TANZANIA RAILWAY AUTHORITY, popularly known
as Tazara. Their services were terminated by the respondent, allegedly because of
redundancy caused by the respondent’s declining business as a result of a number of
alleged factors the details of which it is not immediately necessary to go into. The
appellants were dissatisfied so they went to the permanent Labour tribunal, via the
commissioner for Labour, in a terms of section 94 (1) for the permanent Labour tribunal
Act, 1967, as amended by Act No. 18 of 1977. The Tribunal dully inquired into the
matter and accordingly made a report to the said minister made a decision, reversing the
step taken by the respondent of terminating the appellant’s services. The Minister ordered
the reinstatement of the appellant, without any loss of benefits, and directed that the
purported redundancy payments be treated as interest free debts thirteen days later the
decision was registered by the Tribunal as an award, in accordance with section 9B (1)
of the Act as amended.

The respondent was not satisfied with the Minister’s decision so in February, 1985,
through their advocate, Mr. Tarimo, they applied for an order of certiorari to remove the
Minister’s order into the High Court and have it quashed and set aside. The application
was heard by Lubuva, J. on 2nd October, 1985 and on 26th October, 1985 the learned
judge delivered his ruling, which was in favor of the applicants, Tazara. He was satisfied

114
that the proceedings before the Tribunal were ultra vires so he quashed the Minister’s
order based on them and set it aside.

The appellants are now appealing to this court, and Prof. Shivji of the university of Dar es
Salaam Legal Aid committee, who has represented them all along, is appearing them. Mr.
Tarimo continues to represent the respondent. That, in brief, is the background to this
appeal.

Before going into the substance of the appeal we wish to remark that we were
inconvenience by the record furnished to us as which was of the typed record a whole
page of the original record is left out, which makes it appear that only Prof. Shvji, and not
Mr. Tarimo, said anything at all before Maina, J. on 2nd March, 1985. Then at page 62
nearly ten pages of the original record are omitted. Page 74 shows that leave was granted
to appeal to the court of Appeal against Lubuva, J.’s ruling while the ruling itself starts
form page 75. we wish to urge Prof. Shivji, the learned advocate for the appellants to
exercise greater care when certifying records and we would respectfully draw his
attention to the rules of the court of Appeal regarding this matter.

To come back to the appeal itself now.

In a lengthy Memorandum of Appeal the appellants urged several grounds. So as to

appreciate the really momentous ones it is necessary to support of its prayer for an order
of certiorari, as well the findings on which the learned judge based himself in granting the
prayer. The present respondent’s main grounds were as follows:

(1) There was no Trade Dispute in existence when the Permanent Labour Tribunal
and the purported inquiry offended the provisions of section 9A(1) for the Act.
The said section 9A(1) reads:
Subject to subsection (2) (which is irrelevant here) where any trade dispute exists or
is apprehended, the Labour Commissioner may inquire into the cause and
circumstances of the trade dispute to the Tribunal and the Tribunal shall inquire into
the matters referred to it and report on them to the Minister.

(ii) The inquiry on which the Minister relied on was in any case null because the
proceedings were conducted without the authority and or knowledge or Juwata. In
such inquiry proceedings the employees must be represented by Juwata which is a
necessary party to any such proceedings.

(iii) There must be, and here there was not, a report from the Juwata Secretary
General on which the Labour Commissioner could have initiated the inquiry.

(iv) the Minister’s order and decision breached the rules of natural justice in that
Tazara were not given an opportunity to be heard before the minister made the said
decisions and order against them.

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 The present appellants urged a number of grounds to counter Tanzania’s assertions.
The main ones wee that the purported terminations were void abnitio because there
had been no prior consultation with Juwata Field Braches before the decision of
declaring the workers redundant. The present appellants protested against the
terminations and approached the Labour commissioner who in torn enquired with the
Juwata Secretary General, which set in motion the other steps which followed. The
appellants further contended that the respondents had in any event unduly delayed in
asking the court to exercise its discretion and granting an order of certiorari.

In issuing the order for certiorari the learned High Court judge was satisfied that,
among other things:

(1) There was no trade dispute. The issue of reducing the number of workers and
been amicably “settled or compromised between Tazara the employer, the
applicants in this matter and Juwata. Juwata was fully involved in this”.
…”Juwata as a trade union had been sufficiently involved at various stages
pertaining to the redundancy issue of Tazara employees, some of whom were the
respondents”. Specifically the learded judge observed, in the course of his
judgment:

“……… I am satisfied and find it as a fact that by the time the matter was referred to the
Minister, such matter had already been determined and duly settled. The determination
and settlement on the issue had been effected between Juwata on behalf of the
employees, the respondents and Tazara, the employer, the applicants. There was no more
dispute in existence.

The learned judge said he appreciated the provision of section 6 (1) (g) of the security of
Employment Act, which provides:

6(1) (g) the function of the field branch, and in relation to the business for which it is
established, is to consult with the any join agreement on redundancies.

It was the learned judge’s view however, that in the present case the redundancies did not
become impending until the council of Ministers had decided on the redundancies. It will
here be recalled that the Tribunal and the Minister were of a different view. They were of
the view that once super Mac (Super Management and Administration Committee) felt
the necessity of reducing the number of workers the employer should have consulted with
Juwata Field branches before making recommendations to the Board of Directors (which
in turn took the recommendations to the Council of Ministers) it was basically because
of the foregoing that the learned High Court Judge issued the order of certiorari quashing
and setting aside the Minister’s order.

Prof. Shivji made a number of spirited submissions attacking the learned judge’s decision
and urging us to reverse the High court ruling. We are most grateful to both learned
counsel for their obvious industry in separate the grain from the chaff and utilize only
such inputs as we find necessary and enough for the disposal of the matters before us.

116
Prof. Shivji urged that when the matters was referred to the Tribunal for inquiry and
subsequently the Minister made a decision there was still in existence a Trade Disputes.
He submitted that a proper construction of the Secretary General’s letter would net
permit the conclusion that the Trade Dispute had been settled. Further Juwata does not
have to be involved in every Trade Dispute. Juwata has to report to the Labour
Commisioner a Trade Dispute, and so be involved, only if the action is under section 4
(1) of the Act. If he contends, as in the present case, the employees act under section 9
(A), Juwata does not have to reportand does not have to be involved: It is not a necessary
party. Section 4 (1) of the JUWATA Act 1979 indeed provides:

“JUWATA shall be the sole body representative of all employees within the United
Republic.”

Prof. Shivji submitted that this merely meant that there cannot be any other Trade Union
in Tanzania.

The appellants’ advocate also addressed us on what he said was the real meaning of
Section 6 (l) (g) of the Security of Employment Act, cap. 574. He supported the view of
the Tribunal that the intended consultation should have been held before declaring the
redundancies. He in other words asked us to fault the view that there were in this case no
impending redundancies before the time the Council of Ministers approved the
recommendation put to them by the Board of Director.

Prof. Shivji also reiterated his earlier submission before the learned judge that the High
Court should have refrained from exercising its discretion in favour of the respondent
because of their delay of over two months after the award before applying for the order of
certiorari.

Mr. Tarimo submitted that Lubuva, J. acted quite properly in granting the order the order
of certiorari and that his decision should not be General’s letter to found the view that the
Trade Dispute had been settled. The appellants had accepted their terminal dues and left.
They cannot latter be heard to say that they were unhappy. JUWATA had been involved
and settled the dispute which no longer therefore existed. The employees had consented
to the settlement, as evidence by the letter from the Secretary General. Mr. Tarimo
maintained that JUAWATA is a necessary part to a Trade Dispute, even if the
proceedings are under section 94.

117
The basis of the High Court decision was

118
Administered by inferior tribunals and statutory bodies. And the other school of thought
consists of conservatives who have taken a more cautious and reluctant line in their
anxiety not to seem to encroach or to assume an appellate function which they have not
got. However since the decision of the House of Lords in Anisminic Ltd. Vs. Foreign
Compensation Commission the number of conservatives is dwindling fast in many
common law countries.

In that case Lord Reid propounded the sentiments which represent the first school of
thought which hereinafter I shall refer to as the broad approach. he said at p. 170:

Statutory provisions which seek to limit the ordinary jurisdiction of the court have
a long history. No case has been cited in which any other form of word limiting the
jurisdiction of the court has been held to protect a nullity.

If the draughtsman or parliament had intended to introduce a new kind of ouster clause
so as to prevent any inquiry even as to whether the document relied on was a forgery, I
would have expected to find something much more specific than the bald statement to
find something much more specific than the bald statement that a determination shall not
be called in question in any court of law. Undoubtedly such a provision protects every
determination, which is not a nullity. But I do not think that it is necessary or even
reasonable to construe the word determination as including everything which purports to
be a determination but which is in fact no determination at all. And there are no degrees
of nullity. There are a number of reasons why the law will hold a purported decision to be
a nullity. I do not see how it could be said that such a provision protects some kinds of
nullity but not others: if that were intended it would be easy to say so.”

I share those views and adopt them for the purpose of this case. Thus it was said in that
case that there were many instances where although the tribunal had jurisdiction to enter
on the inquiry, it may have failed to do something in the course of the inquiry which is of
such a nature that its decision is a nullity.

It may have given its decision in bad faith. It may have made a decision which it had no
power to make. It may have failed in the course of the inquiry to comply with the
requirements of natural justice. It may in perfect good faith have misconstrued the
provisions giving it power to act.

It may have refused to take into account something which it was required to may have
refused to take into account something which it was required to take into account. That is
not an exhaustive list and recently the House of Lords in the case of C.C.S.U. vs.
Minister for the Civil Service devised a new nomenclature for the ground upon which
administrative actions can be subject to judicial review despite the ouster clause. In that
case lord Roskil commenting of the judgment of Lord Diplock said:

“My noble and learned friend Lord Diplock in his speech has devised a new
nomenclature for each of these three grounds. Calling them respectively illegality,

119
irrationality and procedural impropriety, words which if I may respectfully say so, have
the great advantage of making clear the differences between each ground.”

“Judicial review has I think developed to a state to-day when without reiterating any
analysis of the steps by which the development has come about, one can conveniently
classify under three heads the grounds upon which administrative action is subject to
control by judicial review.

The first ground I would call illegality; the second irrationality and the third procedural
impropriety. That is not to say that further development on a case by case basic may not
in the course of time add further grounds.

I have in mind particularly the possible adoption in the future of the principle of
proportionality which is recognized in the administrative law of several of our fellow
members of the European Economic Community; by to dispose of the instant case the
three already well-established heads that I have mention will suffice.”

Then his lordship explained that by illegality he meant that the decision-maker must
understand correctly the law that regulates his decision –making power and must give
effect to it.

Whether he has or not is par excellence a Justinable question to be decided in the event of
dispute, by the judged. And by irrationality he said it meant what has hitherto been
succinctly referred to as “Wednesbury unreasonableness” (from the case Associated
provincial Picture Housed Ltd. vs. Wednesbury Corporation13)

It 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.

12. (1984) A.C 374 or (1985) L.R.C (Const) 948 ( The latter citation means
Commonwealth Law Reports (Constitutional Cases) published in London by

13. (1948) 1 K.B 223

To the question to be decided could have arrived at it. He explained that the a decision
falls within this category was a question that judges by their training and experience
should be well equipped to answer or else there would be something badly wrong with
our judicial system. And by procedural impropriety Lord Diplock said that it included
failure to observe basic rules of natural justice or failure to act with procedural fairness
towards the person who will be affected by the decision; and said that it also included
failure to observe procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred even where such failure does not involve
any derail of natural justice.

The formulation by Lord Diplock of the three grounds was followed later by the House of
Lords in Wheeler vs. Leicester City Council14 where the decision of the City Council

120
was found to be a nullity for irrationality i.e for being unreasonable and also for
procedural impropriety. Yet again it was followed in Secretary of State for the
Environment vs. Nottinghamshire Country Council15 where the decision of the Minister
was challenged to be a nullity for being unreasonable.

In Zimbabwe recently the Chief Justice Mr. Justice Dumbutshena in the case of Patriotic
Front – ZAPU vs. Minister of Justice16 quoted with approval the three categories laid
down by Lord Diplock in the above mentioned case as the recognized grounds for
judicial review; And consequently he held that the action of the President of Zimbabwe
of fixing the nomination data for the General Election could be attacked as a nullity if it
was suffering from illegality, irrationality or procedural impropriety. However in the end
the learned Chief Justice held that the Presidents action was not ultra vires for being
unreasonable (i.e. irrational)

In Tanzania decisions toeing the first school of thought( the broad approach ) are not
wanting. First we have the decision of the Tanzania Court of Appeal in Ally Linus and
Other vs. Tanzania Harbours Authority.17

Under section 28 of the Security of Employment Act18 the jurisdiction of the court is
ousted in the following words:

14. (1986) L.R.C.(Const.) 696

15. (1986) L.R.C.(Const.) 762
16. (1986) L.R.C.(Const.) 672
17. Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 2 of 1983
(Unreported)
18. Cap 574

NO suit or other civil proceeding shall be entertained in any civil court with regard to the
summary dismissal or proposed summary dismissal of an employee.

The Tanzania Court of Appeal (Nyalali, C.J) started in above case.

“The High Court is required to exercise its supervisory function to ensure that a
tribunal or such body below acts in accordance with the Rule of Law…It is clear
that the basic structure of the Constitution of this country vests the judicial power
or the State in the Judicature, that is the judicial arm of the Government.
The function of interpreting the laws of the State is a judicial function and for that
reason the judicial arm of the Government has the final word about the meaning
of the laws of this country. That is the objective basis of the supervisory function
of the High Court.”

Then later on Nyalali, C.J. said.

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 “There is plenty of authority to show that the absence or lack of jurisdiction are
not the only ground for certiorari to issue. Para 147 of Halsbury’s Laws of
England states that certiorari: “… will issue to quash a determination for excess or
lack of jurisdiction or error of law on the face of the record or breach of the rules
of natural justice or where the determination was procured by fraud, collusion or
perjury.

And certiorari was issued to quash the decision of the Labour Conciliation Board because
it was found that it was arrived at in breach of rules of natural justice. And in the case of
Omari vs. East African Airways19 Georges, C.J. Held that despite the ouster clause in
section 28 of the Security of Employment Act20 the decision of the labour conciliation
board could be attacked by certiorari and mandamus if the same was arrived at without
following the stipulated procedure for dismissal.

However examples of Court decisions in Tanzania which have followed the narrow
approach on oust e clauses are numerous. For example in the Ally Linus Case (supra) at
the High Court level Mnzavas, J.K was the view that an order of certiorari could only
issue for lack or excess of jurisdiction. He was e-choing the words of Lord Reid in
Armah vs. Government of Ghana21 the

19. (1970) E.A 610

20. Cap. 574
21. (1966) 3 All E. R 177

“If a magistrate or any other tribunal has jurisdiction to enter the inquiry and to decide a
particular issue, and there is irregularity in the procedure, he does not destroy his
jurisdiction reaching a wrong decision. If he has jurisdiction to right, he has jurisdiction
to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction to go
wrong. Neither an error in fact nor an error in law will destroy his jurisdiction. “22

And another example of the narrow approach is the decision of the former Chief Justine
of Tanzania Mr. Justice Saidi in Re Petition by Habel Kasenha. 23 By section 78 (2) of
the Local Government Elections Act it was provided:

“The proceedings of meeting of the District Executive Committee or any other

organ of the Party which is held for the purpose of this Act, should not be subject
to review in any court, either or by way of an election petition or otherwise.

The Chief Justice held that the jurisdiction of the court was ousted, apparently even if the
election was procured by fraud and collusion, as those are the ground upon which the
petitioner relied on in his petition. Our 1977 Constitution provides under Article 6 (5):

“Where a person has been declared by the Electoral Commission to have been elected
President, his election shall not be questioned in any court.”

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Those who espouse the narrow approach would like to tell us that because of that ouster
clause the Presidential election cannot be challenged in court. That is wrong.

In the case of East African Railways Corporation vs. Anthony Sefu24 Mwakasendo, J.
(as he then was) took the narrow approach in arriving at the decision. In there section 16
of the Public Service Commission Act 1962 read

“The question whether any Commission has validly performed any function
vested in it by this Act; shall not be enquired into in any court.”

The judge held that the ouster clause ousted the jurisdiction of the High Court to inquire
into the validity of the decision to dismiss Anthony Sefu.

22. At p 187
23. (1967) E.A 445
24. (1972) HCD No.220

taken by the East African Railways and Harbours Service Commission as the decision
was within its jurisdiction. Even if the decision was procured by fraud, that school of
thought argues that the commission has the right to go wrong or right within its
jurisdiction. It is of interest to note here that on a similar ouster clause Kneeler, J. of the
High Court of Kenya in the case of Chief vs. E.A Community25 decided to adopt the
broad approach and held that the High Court had power to enquire into the decision of
dismissal of an employee to see if the same was arrived at tin breach of rules of natural
justice or not.

Surprisingly in Tanzania in cases filed to challenge detention orders under the Preventive
Detention Act, 196226, both the High Court and the Tanzania Court of Appeal have
taken the narrow approach. That statute had the ouster clause in section 3 which now has
been repealed by Act No. 2 of 1985. That section read:

“No order made under this Act shall be questioned in any court.”

In the case of Ali Yusufu Mpore vs. R.27 Samatta, J. stated that the High Court could not
go further than the “authenticity” of the detention order to see if it is properly signed and
sealed.

A similar approach was adopted by Maganga,J. in Ahmed Janmohamed Dhirani vs. R.28
and later Bahati, J echoed what his colleagues had said earlier in the case of Dhikri.
29Then the Tanzania Court of Appeal n the case of A.G vs. Lesinoi Ndeinai 30 adopted
the narrow approach despite the fact that the Anisminic Case was mentioned. In that case
Nyalali, C.J. said:

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 25 (1970) E.A 487(K)
26 Cap. 490
27 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No
2 of 1977 (Unreported)
28 (1979) L.R.T.No 1
29 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No.
10 of 1984
30 (1980) L.R.T No 215.

“That the validity of an order of detention made under the Preventive Detention Act is
determined solely by its face value and not by its background. In other words the order is
to be judged by its appearances. If it appears to be an order made under the Act then it is
valid unless the appearances are shown to be false.

And so according to this school of thought one is not entitled to enquire as to how the
decision was arrived at even if it was done in breach of rules of natural justice or it was
procured by fraud. And it appears Bahati, J. sticked to the same narrow approach in late
1986 in what has become to be known as the Mapalala Case despite the fact that the
ouster clause was repealed by Act No. 2 of 1985. Perhaps it is because habits die-hard.
And because of the narrow approach adopted by the courts the President of the country
has been above to employ with impurity the Preventive Detention act to detain cattle
rustlers and moshi liquor drinkers who are ordinary criminals while the statute in
question was meant for preservation of state security.

The poor attitude of the High Court and Tanzania Court of Appeal towards the liberty of
a citizen in a face of a detention order had led the Legal Aid Committee of the Faculty of
law of the University of Dar es Salaam to complain in their book Essays on Law and
Society that these courts are more executive minded than the executive itself.” While a
radical lawyer Harrison G. Mwakyembe in his paper. “Bill of Rights in Tanzania – A
General Overview”32 has attacked the attitude of our courts as “uninspiring.”

An ordinary man in the UDA bus has been heard to comment that the judges seem to be
interested to preserve their bread and butter rather than risk a sack by crossing sword with
the executive over detention orders.

The attitudes of the courts in some other Commonwealth countries is not inspiring either.
For example in Uganda first in the case of In the Matter of an Application by Michael
Matovu 33 and later in Re Ibrahim & Other34n the High Court took the narrow approach
and held that the courts are not allowed to go beyond seeing the detention order. They
could not question as to how it was arrived at and recently the Nigerian Federal Supreme
Court has

124
 31. (1985) At p. 35
32. One of the papers delivered between 20th to 25th October, 1986 when the
Faculty of Law of University of Dar es Salaam celebrated its Silver Jubilee, at
p.26
33. (1966) E.A 514(Sir Udo Udoma, C.J).
34. (1970) E.A. 162 (U) (Jones, Ag. C.J).

Adopted then narrow approach as indicated by two cases: first the Nigerian Union of
Journalist vs. A.G of Nigeria35 and second is the case of Wang vs.Chief of Staff Supreme
Headquarters Lagos. 36The ouster clause under section 1 of the Decree No 13 of 1984
provided.

(1) No civil proceedings shall lie or be instituted in any court for or on

account of or in respect of any act, matter or thing done or purported to be
dome under or pursuant to any Decree or Edict and if any such
proceedings are instituted before on or after the commencement of this
Decree, the proceedings shall abate, be discharged and make void.

In the first case a trade union of Journalists sought to challenge as unconstitutional a

decree, which curtailed freedom of expression. The High court granted the application
but an appeal Nnaemeka – Ag. J.C.A held that

“It is one thing to say that a court has no jurisdiction to hear a case and
quite another to say that, that court has no jurisdiction to inquire or determine
whether or not what is before him is within the contemplation of the provisions of
the ousting legislation.

In my opinion the learned Judge having held the he had jurisdiction to make the
initial inquiry as to whether what was before him were matters within the
contemplation of the above Decrees, should have come to the conclusion that his
jurisdiction has been completely ousted.”

And in the latter case the applicant sought to challenge by way of habeas corpus a
detention order issued under the State Security (Detention of Persons) Decree, 198437 as
of habeas corpus saying its jurisdiction had been ousted. On appeal Ademola, J.C.A.
agreed, stating that to constitute an “ouster of jurisdiction” the words used must be such
as to affect and deal with entertaining of the action as opposed to words dealing with
effect of a decision given in an action. And according to him the ouster clause in this case
concerned the entertaining of an action. It was pointed out that a tribunal statutory body is
allowed to make errors within its jurisdiction.

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But not all Commonwealth countries have adopted the narrow approach. I have already
cited the case of Chite (supra) from Kenya. In Australia in the

35 (1986) L.R.C (Const.) 1.

36 (1986) L.R.C (Const.) 319.
37 Decree No. 2 of 1984

Case of O’Rourke vs. Miller38 the decision of an administrative body was attacked on
procedural impropriety for failure to give fair opportunity to a servant who had been
dismissed to state his defence. In the Supreme Court of New South Wales (in Australia)
in the case of Osmund vs. Public Service Board of New South Wales39 the ouster clause
contained in section 65A (b) of the Public Service Act, 1979 provided:

“Without affecting the government, no proceedings whether for an order in the

nature of prohibition, certiorari or mandamus or for a declaration or injunction of
for any other relief, shall lie in respect of –© the appointment or failure to appoint
a person to a position in the Public service, the entitlement or non-entitlement of a
person to be so appointed or the validity or validity of any such appointment.

The applicant field an action for a declaration that there was breach of rules of natural
justice in that he was entitled to be given reasons for the refusal to be given a particular
appointment. He prayed for an order that he be given the reasons.

Kirby,J. adopting a strict construction held that a prayer for reason for refusal of
appointment was not an action in respect of an appointment or failure to appointment was
not an action in respect of an appointment or failure to appoint and so the ouster clause
had no effect. I have already cited some English cases adopting the broad approach, but
one final case will not be too much. It is the case of R.vs.Secretary of State ex-parte
Phansopkar10 in which the ouster clause in section 26 of the British Nationality Act of
1948 was worded as follows.

The exercise by the Secretary of State of his discretion in relation to applications

of citizenship is not to be subject to appal or review in any court.

An applicant sought an order of Mandamus against the decision of the Secretary of state
effusing to consider his application on the ground that the applicant should have made the
application to the British Embassy in India before she left India. The Court of appeal held
that the ouster clause had no effect when the Secretary of State refused to consider the.

38. (1986) L.R.C (Const.) 654

39. (1985) L.R.C (Const.) 1041
40. (1976) Q.B 606

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Application on merits. Mandamus issued ordering the Secretary of State to hear the
application in England. This case is very akin to the fact of the present case.

From what has already been discussed therefore I don’t claim to breach a piece of virgin
thinking when I say that ouster clauses are more or less paper tigers. That distinguished
English judge Lord Denning, M.R in his book. The closing Chapter42 correctly
summarizes the duty of the courts in judicial review. He says:

“It is implicit in the powers conferred on a public authority that in any

determination that it may make it will act in accordance with the law. If it goes
wrong in point of law or misdirects itself in point of law, it goes outside its
powers. For many years there was a distinction between the kinds of error.

If the public authority went out side its jurisdiction altogether, its decision was
void. But if it make an error within its jurisdiction, it could not be avoided. That
distinction has now gone. No tribunal or inquiry has any jurisdiction to make an
error of law on which the decision of the case depends.”42

This has now been affirmed by the House of Lords in the vastly important case of O
Reilly vs. Mackman43 when lord Diplock said:

“The full consequences of the Anisminic Case have been virtually to abolish the
distinction between errors within jurisdiction that adhered avoidable a decision
that remained valid until quashed and errors that went to jurisdiction and rendered
a decision void ab initial provided that its validity was challenged timelessly in
the High Court by an appropriate procedure.”

So we have no cause to trouble ourselves with error within or without the jurisdiction:
nor with void or avoidable. That is a great relief.

That passage succinctly expound as to what I consider to be the correct position of the
law even in Tanzania despite the few decided cases which espouse the narrow approach.

41. (1983) Butterworth.

42. At. Pp.136 – 137
43. (1982) 3 W.L.R 1096

Therefore I would held that the effect of exclusion clauses is not to disarm the High Court
of its supervision role of inferior tribunals and statutory bodies. As pointed out by Lord
Wilberforce in the Anisminic Case (Supra):

“ The question what is the tribunal’s proper area is one which it has always been
permissible to ask and to answer and it must follow that examination of its extent
is not precluded by a clause conferring conclusiveness, finality or unquestionably
upon its decisions.

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 These clauses in their can only relate to decisions given within the field of
operation entrusted to the tribunal. They may, according to the width and
emphasis of their formulation, help to ascertain the extent of that field, to narrow
it or to enlarge it, but unless on is to deny the statutory origin of the tribunal and
of its powers, they cannot preclude examination of that extent”44.

Those observations equally apply to administrative bodies, and statutory bodies besides
the tribunals. Even if the decision of that body is within its jurisdiction, the courts are
entitled to examine it to see that, it has not broken any law in arriving at that decision.

The broad approach is to be preferred because these days the individual citizen often find
himself victimized by the over-zealous officials in the course of discharging their
multifarious functions. Now the imperative need in a democracy is to subject the power
centers, wherever they may be located to fundamental constitutional or public law
limitations. One of the fundamental limitations upon governmental and parastatal
functions is that every action of the executive government which operates to the prejudice
of a person must be informed with reason and should be free from arbitrariness. This
limitation springs from the very concept of the Rule of Law.

This concept of Rule of Law has suffered many definitions and survived varying
perceptions ranging from A.V Dicey in his book The Law of the Constitution (1885) to
various recent definitions. Yet there is substantial agreement that the basic rationale and
the essential purpose of the Rule of Law is “protection of the individual against arbitrary
exercise of power, wherever it is found”. Consequently the government and its various
organs cannot be left to act arbitrarily but its action must be in conformity with standards
or norms which are not arbitrary, irrational or irrelevant. That is the Rule of Law. It
would indeed lead to an absurd situation if a tribunal or administrative body, having been
given a circumscribed area of operation, were entitled of its own motion to extend that
area by misconstruing the
44 At p. 207
Limits of its mandate as set out in the stature. An English judge a Mr. Farewell, L.J a
long time ago in the case of R. vs. ex-parte Morgan45 exclaimed that, that
construction would render the aforesaid organ to be autocratic.” And we submit that,
that situation should only be possible in a fascist state where law is used as a
necessary weapon by the ruling class to “handle” or “deal” with the people.

As the then Tanzania Party (TANU) newspaper The Nationalist of 24th June, 1969
once commented in its editorial of what looked like in a bourgeois fascist State. It
said:

“The bourgeoisie makes its own laws. These laws are both its property and an
instrument for maintaining it in power. This is also perfectly understandable I
terms of the realist of bourgeois societies which necessarily must exist above the
people.

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 Those who exist above the people must have their laws exist above the people. It
is the people that must serve and obey bourgeois laws. It is not bourgeois laws
that must serve the people. This is so because in the final analysis bourgeois laws
are made to protect the interests of the bourgeoisie.

There us everything for those who argue that those who advocate the narro approach
on the ouster clause are indeed using the law to protect the interests of the ruling class
at the expense of the individual citizen. The ouster clauses is a sample of what Pro.
Issa G. Shivji terms the instrumentalist aspect of the law. He says in his work Law,
State and the Working Class in Tanzania 46 that.

“Both law and state in the final analysis serve the interests of the ruling /dominant
class – in some cases law is used as a direct instrument tool of the ruling class and
serves its immediate interests without mediations of intermediate links”.

Thus the ouster clauses are used to cover up or hide the errors or blunders of the ruling
class and its statutory bodies.

The judiciary has therefore a duty to see to it that the ruled are not oppressed by the
rulling class unnecessarily or purely to serve the immediate interests of those who cling
to power. The Judiciary has a role to enhance the rights of the people. It is though the
courts of law that the people can defend their rights.

44. (1910) 2K.B 859 at p.880

45. (1986) Heinemann & T.P.H

In the judiciary the world over, there exists two broad strands of judicial approach
towards statutes general.

There have been those judges who have taken the view that, without usurping the
functions of Parliament, a judge has the duty to interpret the law, as far as he can, in a
way which accords with social and personal justice, which upholds rather than destroys
the civil liberties of the individual, which looks with suspicion and not equanimity on the
increasing encroachment of the state and its various statutory bodies in the lives of
citizens. The judges who espouse the broad approach to ouster clauses in my considered
view come close to this first category.

There is another kind of judge who sees his task as maintaining the authority of the State,
interpreting Acts of Parliament narrowly, supporting the words of the law in preference to
the justice of the case, and affirming that it is for parliament to change the law that turns
out to be unjust or absurd and not for judges to achieve that result through statutory
interpretation. This latter kind of judges has been dubbed “Leaky Umbrella” in the
important task of protection of the civil liberties of the citizens.

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On my part I would not like to be in a category of “leaky umbrellas” and would thus take
up the broad approach to ouster clauses. I am entitled to examine the decision of the
relevant statutory body to see if it was arrived at in accordance with the law or not.

It would now go to the merits of the application, just recently in the case of Ex-parte John
Mwombeki Byombalirwa vs. Regional Commissioner and Regional Police Commander
of Kagera Region, 47 I set out the five conditions that need to be proved so that an order
of mandamus may issue. These five conditions are:

1 The applicant must have demanded performance and the respondents must
have refused to perform.
2 The respondents as public officers must have a public duty to perform
imposed by statute or any other law but it should not be a duty owed solely to
the state but should be a duty owed as well to the individual citizen.
3 The public duty imposed should be of an imprerative nature and not a
discretionary one:
4 The applicant must have a locus stand; that is, he must have sufficient interest
in the matter, and

46. High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No. 22 of

1986.

5 There should be no other appropriate remedy available or rather better still,

the court should feel disposed to exercise its discretion in favour of the
applicant.

In the application at hand, conditions Nos. 2,3,4, and 5 generate no controversy. The
respondent concedes that these are non-issues; it is conceded that the respondent as an
Assistant Price Commissioner has a public duty of an imperative nature towards the
applicants – that is of reviewing food prices. The applicants own restaurants and
hotels and they provide catering services to the general public. They thus fall under
section 13(1) (a) of the Regulation of Prices Act, 1973 as “persons who provide
services” who can move the Assistant Price Commissioner to review process of their
services.

They indeed have substantial interest in the matter as persons who are directly
affected by the prices of the services they provide which have to be fixed by the
Assistant Price Commissioner. They are not mere busybodies. And it is conceded that
there is no other alternative remedy provided under the relevant statute for the
applicants to resort to.

The point I controversy is condition No. 1 The respondent has argued that he did not
refuse to review the process. He contended that he duly reviewed the prices on
11/11/1986 and that even prior to this date; the prices in operation had been passed in
accordance with law. Mr.Chama Matata for the respondents said that early in

130
November 1986 they made a market survey of prices of items which have no
government controlled prices and which are used by the hotel owners.

Then as a result of the market survey and considering the government – controlled
prices of the other items, the Assistant Price Commissioner decided to make an
overall increase in prices of 27% for all the food services affected. He said that the
27% increase took into account the provisions of section 12 (1)(a) and (e) of the
Regulation of Prices Act, 1973,the provisions which require the Assistant – Price
Commissioner in determining the price structure of the services to have regard to the
commodities and services that are essential to the community; and to have regard to
the need to maintain fair relationships among the incomes of different sectors of the
community.

The respondent argued that the prices were fair, realistic and within the purview of
the statute in that the interests of the producers, traders and the community at large
were taken care of. The price list is attached to the application as annexture E.

For the application Mr.Salum Amani Magong argued that the prices fixed on
11/11/1986 for the services they rendered were unrealistic and contrary.
To the intention of the legislature. He said that after all the Assistant Price
Commissioner did not afford them an opportunity of being heard. He contended that
the market survey that was conducted was haphazard and selective in that goods like
sugar, cooking oil, etc. items that have been imported after the liberalisation of trade
were not included in the market survey.

And it was argued that the running costs of the hoteliers were not taken into account
in the 27% increase. The result is that the prices that were fixed were unrealistic and
not in accordance with the law. For example it was said a boiled egg was fixed at shs.
10/= and a fried eggs at shs.12/= while it is said the price of an egg at the market is
between shs. 10/= and shs12/=.

He said that as a result no profit margin has been left to the hoteliers. The agent for
the applicants also argued that the process that had been fixed on 11/11/1086 have
nonetheless been overtaken by events in that new government controlled process for
items like sugar have been increased. It is said the new prices were announced by the
government in early March 1987.

In my considered opinion the decision of the Assistant Price Commissioner of

11/11/1986 cannot prevail on three grounds. First because of failure to give the
applicants an opportunity of being heard; First because of failure to give the
applicants an opportunity of being heard; secondly because he has abused his
discretion and thirdly because of failure to follow the statutory provisions. I will
hereinafter elaborate each of these three grounds.

First the applicants were not afforded an opportunity of being heard. Chama Matata
for the respondent conceded that much but tried to explain away that. They had

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 before them the written proposals from the applicants which are annexture D to the
application. But I note that the Annexture D is dated 14/11/1986 and therefore could
not have been considered by the Assistant price Commissioner on 11/11/1986

In fact the document of 14/11/1986 is a letter in which the applicants mounted an

attack on the process fixed by the Commissioner. Now the question arises as to
whether the applicants were entitled to be heard. I answer that question in the
affirmative.

Any statutory body when exercising the powers conferred on it by a stature must act
in accordance with the principles of natural justice or fairness, unless they are
expressly excluded by the relevant legislation. I subscribe to the view taken by Lord
Upjohn of the Privy Council in the case of Durayappah vs. Fernando48 that.

47. (1967) 2 All E.R 152 P.C

On the question of audi alteram partem. The statute can make itself clear on this
point and if it does, cadit question. If it does not then the pronciple stated by
Byles, J. in Cooper vs. Wandsworth of Works49 must applied. He said this: along
course of decisions beginning with R. vs. Cambridge university – Bentley’s
Case50 and ending with some very recent cases; establish that although there are
no positive words in the statute requiring that the party shall be heard, yet the
justice of the common law will supply the omission of the legislature.

In the case at hand the statute is silent about the doctrine of audi alteram partem and
therefore we shall supply the omission.

However it is not always that the principles of natural justice apply. In the above
mentioned case Lord Upjohn said that the principles were applicable to victims of
dismissal from office, those deprived of their property and those expelled from clubs
and he left it open for the other cases when the principles would apply. Recently in
Kenya Mulli, J. in the case of Angaha vs. Registrar of Trade Unions, 51 after
discussing various decided cases held that the right to be heard was confined to where
the matter was:

“Concerned with vested rights which were sought to be interfered with without
allowing those affected to be heard in respect of their vested
rights.”

But the better view on the matter seems to me is the statement by Lord Denning M.R in
the case of Achmidt vs Secretary of State52 that:

“I quite agree of course that where a public officer has power to deprive a person
of his liberty or his property, the general principle is that it is not to be done
without his being given an opportunity of being heard and of making
representation son his own behalf.”

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In the case at hand of course the applicants have vested interests in the matter, as the
change in price would affect their livelihood. It is depriving them of their property
without being heard. In fact any member of the public has a right to be heard on the
matter as the decision adversely affects his livelihood i.e. his pocket as a potential
customer of the hotels concerned.

49 (1864)
50 (1723) Fortes Rep. 202
51 (1723) E.A 297 (K)
52 (1969) 1 All E.R 904 C.A. at p. 908

The applicants have in fact another string to their bow. The law has advanced must
further on this field. It is said that a person is entitled to a fair hearing before a decision
adversely affecting his interests is made by any public official or body if he has a
“legitimate expectation” of being accorded such a hearing. The phrase “legitimate
expectation” in this context originated in the judgment of Lord Denning, M.R. in Schmidt
Case (Supra). Legitimate expectation may arise wither from an express promise given on
behalf of a public authority or from the existence of a regular practice, which the claimant
can reasonably expect to continue.

The expectation thus may be based upon some statement of the public authority which
has the duty of making the decision, if the authority has through its officer acted in a way
that would make it unfair or inconsistent with good administration for him to be denied
such an inquiry – see English cases on the point first R.vs. Board of Visitors of Hull
prison ex-parte St. Germain (No.2) 53 then O Reilley vs. Mackman; 54 and C.C.S.U.vs.
Minister of the Civil Service.55 In the case at hand it could be argued that there existed a
legitimate expectation on the part of the applicants (assuming they had no vested interests
in the matter) that the Assistant Price Commissioner in consonance with a good
administration would not deny them an opportunity of being heard as they had constantly
pestered hem to review the prices; and he knew his decision would adversely affect the
applicants.

The respondent might argue that he was merely exercising an administrative power and
not a judicial act and so he had no obligation to adhere to the principles of natural justice
or fair play. But as Lord Denning, M.R pointed out in the case of R.vs Gaming Board for
Great Britain Ex parte Benaim.56

“At one time it was said that the principles (of natural justice) only apply to judicial
proceeding and not to administrative proceedings. That heresy was scotched in Ridge vs.
Baldwin57…. So let us sheer away from these distinctions.

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 53 (1979) 1 W.L.R. 1401
54 (1982) 3 W.L.R. 1096 H.L
55 (1985) L.R.C.(Const.) 948
56 (1970) 1 All E.R 528 C.A at pp 533-534
57 (1963) 2 all E.R 66

And again Lord Denning M.R reiterated his warning in Breen vs. Amalgamated
Engineering Union58 that;

“It does not matter whether its functions are described as judicial or quasi-judicial
on the one hand or as administrative on the on the other hand or what you will.
Still must act fairly. It must in a proper case give a party a chance to be heard.”

In Tanzania the distinction between judicial and administrative actions for the purposes
of judicial review w as put to a lasting rest by the Tanzania Court of Appeal in the case of
Patman Garments Industries Ltd. Vs Tanzania Manufacturers Ltd.59 as per the judgment
of Mwakasendo, J.A I would accordingly follow that decision.

However in affording someone an opportunity of being heard, it does not matter if the
hearing is done orally or by the medium of written statements-see El-Kindly, J. in the
case of Donald Kilala vs. Mwanza District Council.60

“But whatever standard is adopted, one essential is that the person concerned
should have a reasonable opportunity of presenting his case.”

And more recently in the case of Mclnnes vs. onslow Fane & Another62 the Court of
Appeal of England held correctly in my view that where administrative as opposed to
judicial or quasi-judicial discretion was concerned, the duty to act fairly was more
appropriate than the duty to act in accordance with strict rules of natural justice, The
concept of “fairness” is broad and flexible, its requirements varying according to the
circumstances.

58 (1971) 1 All E.R 1148 at p. 1153

59 Court of Appeal of Tanzania, Civil appeal No. 15 of 1981(Unreported)
60 (1973) L.R.T. No.20
61 (1949) 1 All E.R 109 at p. 118
62 (1978)3 All E.R.211

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of each case, but it a fundamental requirement that before a decision is reached a fair
opportunity be given or afforded to those to be adversely affecting his interests is make
by any public official or body. I accordingly so hold.

Secondly I would hold that the decision of the Assistant Price Commissioner was void
because of the wrong exercise of a discretion or rather he failed to observe the correct
procedure outlined by the statute before arriving at a decision.

Any statutory body clothed with the power to exercise discretion is required to observe
the correct procedure as provided in the governing stature, and failure or non-compliance
with the procedural requirements will invalidate the decision.

For example in the case of Re an Application by Bukoba Gymkhana Club63 the High
Court held that the decision of the Liquor Licensing Board which was based on
extraneous matters (i.e. the non-existing racial discrimination) was void, as it was an
abuse of th discretion by the said Board. In the case at hand Mr. Chama Matata stated that
the Assistant Price Commissioner based his decision after paying regard to there main
factors given under section 12 (1),(a),(b) and (e) of the Regulation of Prices Act, 1973
which provide:

a). the commodities and services essential to the community;

b). the need to avoid unduly rapid or frequent variations in prices; and
c). the need to maintain fair relationship among the incomes of different sectors of
the community.

But those factors is only part (the tip of the iceberg) of what the Assistant Price
Commissioner omitted to consider and that is contained in section 12 (2) (e) of the
Regulation of Prices Acr, 1973 and it provides:

“To take into account the cost of material (if any) used, the direct and the
overhead costs of providing the service and a margin in relation to the
turnover and the capital employed.”

From the submissions of Mr. Chama Matata when fixing the prices (which
Was an increase of 27%)the Assistant Price Commissioner only considered.

63 (1963) E.A. 478

the cost of the material (after a market survey). But according to the law the should
have also considered the direct and overhead costs of providing the service (e.g.
salaries of the hotel workers) and the profit margin that would accrue to the hotel
owners.

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 The Assistant Price Commissioner it would appear only wanted to please the patrons
of hotels but did not consider the fact that he was shifting the heavy financial burden
to the hotel owners apparently because he thought they ought to have it as they are
“capitalists”!! This attitude of treating private businessmen and women as a nuisance
or pariahs ought to stop and has recently been a subject of a scathing attack from one
distinguished journalist of this land Rose Kalemera as reported as reported in the
Sunday News of 12th April, 1987. I share her feelings revulsion at some hypocrites or
pseudo-socialists when she said;

“The was a time in Tanzania when success in private business was equated with an
unforgivable sin. A successful businessman was viewed as a traitor to the Ujamaa
cause –an idelological Judas Iscariot. This was due to the misguided concept,
advocated by party politicians who sought praise as Ujamaa front-linesrs, that
socialism was synonymous to poverty. Paradoxically,the very preachers of the gospel
of poverty amassed immense immense wealth through clandestine means but posed
as the poorest, just to cover themselves up.”

The respondent in this case appears to harbour similar misguided conceptions about
the hotel owners. However whatever his feelings towards them, he is duty bound to
consider their interests when fixing prices. The Assistant Price Commissioner does
not have an unfettered discretion on the matter. As Lord Reid reminded us in the case
of discretion entrusted to a Minister in Padfield vs. Minister of Agriculture64 where
he said:

“If the Minister by reason of his having misconstrued the Actor for any other reason,
so uses his discretion as to thwart or run counter to the policy and objects of the Act,
then our law would be very defective if persons aggrieved were not entitled to the
protection of the court.”

Equally in this country, our law is not defective so as to deny a remedy where the
Assistant Price Commissioner misconstrues the law as well as the extent of his
powers under the relevant legislation.

64 (1968) 1 All E.R 694.

Thirdly we have not been told that the Assistant price commissioner took into account in
fixing the maximum prices the advise of the District Advisory committee as he is
required to by section 10(6) of the Regulation of Prices Act 1973.Mr Chama matata did
not allude to this factor at all besides mentioning the 27% increase after conducting a
market survey. Failure to take the advice from the Advisory Committee was in my view
fatal and rendered the decision of the Assistant Price Commissioner invalid.

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I note that in the Advisory Committee, M.P.s are included, who definitely would play
very important role in tapping and expounding the interests of the various social groups
The omission to take their advice was indeed fatal and not excusable.

For the three reasons given I find that the decision of the Assistant Price Commissioner
was not in accordance with the law and so I declare it null and void At this juncture I
wish to make certain observations about the National Price Commission which fixes the
maximum prices for most of the essential goods at national level e.g sugar, rice,
corrugated iron sheets etc.

The way the members arrive at their decisions is suspect and could readily be a subject of
judicial review by this court to see if the principles of natural justice are adhered to (e.g
are the consumers at large given an opportunity to be heard?) and to see If the procedure
laid down by the statute is scrupulously adhered It may not be long when some
enlightened citizens alive to their rights, would wish to challenge the decisions of the
National Price Commission thought public interest litigation

One last point about section 14 (1) of the Regulation of Price Act,1973 which provided
that the Assistant Price Commissioner shall not review the prices for services, more than
once in any calendar year, save where he is satisfied that special circumstances exist. Of
course this provision does not apply to the present case where I have ordered a review
after declaring the previous review as void. Be that as it may, with the frequent price
changes on the market and constant devaluation of our shilling, it is submitted that
special circumstances would always be found to exist for the Assistant Price
Commissioner to make a review of the prices as often as possible within a year if fair
play is to be accorded to the consumers and the hoteliers.

The applicants did not apply for an order of certiorari to quash the decision of the
Assistant Price Commissioner but only applied for an order of mandamus in such matters
go together. I find the irregularity curable, more so that the applicants were represented
by a layman I accordingly quash the decision of the Assistant Price Commissioner of
11/11/1986 in which he fixed maximum prices of services at hotels and restaurants and
would order that he reviews the prices afresh in accordance with the law,the restaurant
and hotel owners will fix their own prices on the principle of supply and demand. The
applicants are entitled to the costs o this application which I award them. Order
accordingly.

J.L MWALUSANYA
JUDGE
MWANZA
18.4.198 7

The facts in this case are in a nutshell and the question. To be decided are purely legal
and require very careful treatment. The plaintiff P.P Mugamba was employed by the
National Pharmaceutical Company but the employment was terminated in 1991. He

137
considered it wrongful and instituted a trade dispute in the industrial court in 1997 at
Tabora against the company. At the conclusion of the proceeding the action was
dismissed. He felt aggrieved by the decision but he was apprised that no appeal could lie
against it in view of the legal impediment expressed in section 27 (10) of the industrial
court o Tanzania Act 1968 as amended by Act No.3 of 1990.

Section 27 (10) provides that every award and decision o the industrial court
shall be final and not liable to be challenged reviewed, questioned or called in any court
save on the ground of lack of jurisdiction in which case the matter shall be heard and
determined by full bench of the high court. In his pleadings the plaintiff has averred that
this section is at odd with the provision of article 13 (6) (a) of the constitution.

Article 13 (6) (a) provide that “every person shall, when his might’s and obligations are
being determined be entitled to a fair hearing by the court of law or other body concerned
and be guaranteed the right of appeal or another legal court

It may be observed that this constitution provision was already in place and force as
When section 27 (10) was enacted.

As indicated, the plaintiff has come to this court to question the legality of the section, to
urge upon us that the provision purports to take away the right conferred on him by
Articles 13 (6)(a), and to seek a declaration that the section, to the extent that it is
inconsistent with the constitutional provision, is unconstitutional and therefore null and
void. No doubt, as foretasted, it is really imperative for us to handle this matter with
extreme wariness for in principle that is precisely as it must be.

No question whatever that to declare a provision of a statute unconstitutional and invalid

is invariably a matter of great moment a fortiori where, as in the presents case, the
constitutional provision under reference has preceded the impugned statutory provision in
point of time.

The argument put forward by Dr. Tenga on behalf of the plaintiff is that since section 27
(10) must be construed to mean what it says, namely, that a court or any other authority is
precluded from inquiring into the legality and propriety of any decision of the Industrial
Court save for matters of lack of jurisdiction, therefore, factual errors or other errors in
law fallen into by the Industrial Court are not liable so be questioned or challenged before
any such form, Mr,Salula for the respondents meets this argument by contending that
inasmuch as section 27 (10) allows a person to go to the High Court it cannot be said to
contravene Article 13 (6) (a) and we cannot help wondering whether this is not an
evasive answer.

The construction put on section 27(10) by Dr. Henga is in our view the true and
reasonable one...This provision pares away the right guaranteed by the Article and to all
intents and supposes such is exactly the intendment. Mr Salula has not provided any
effective rejoinder, and it seems to us that he has not addressed himself to the real issue.

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The complaint is not that a person is not allowed to go to the High Court at all. It is that
his improperly abridged by the you every provision.

The argument advanced on behalf of the plaintiff is also that the limitations which are
inherent in section 27(10) have no plausible connections with the provisos prescribed
under Article 30(2), and reference is made to the judgment of the court of Appeal in
Kukutia Ole Pumbun vs The Attorney General, Civil Appeal No.32 of 1992 (unreported),
in which two conditions were attached to the applicability of Article 30(2) where a
provisions of a law happens to be inconsistent with any of the constitutional provisions
pertaining to the basic human rights, freedoms and duties. This is a powerful argument.

Mr. Salula however submits that the decision in Ole Pumbun’s case does not avail
the plaintiff , because, according to him, section 6 of the Government Proceedings Act of
1967 with which the court was dealing in that case was held to be unconstitutional on the
ground that it completely precluded access to the court, unlike section 27(10) of the
Industrial Court of Tanzania Act. We are bound to disagree. So far as we can discern that
was strictly not the ratio decided of that decision, at any rate the only one. And we think
it is quite explicit that the rules laid down by the Court o Appeal in that judgment are
eminently capable and were meant to be of or general application.

Quite frankly we have to acknowledge having failed to ascertain in what way section
27(10) can ever tend to the overriding public and societal interests set out under Article
30 (2), how, in other words, the limitations imposed under that section can be reasonable
linked to any of the interests prescribed under the Article. We wholly agree and we hold,
therefore, that Ole Pumbun’s case avails the plaintiff and that none of the provisions of
Article 30(2) can be called into play.

Mr Salula further submits that section 27(10) cannot be impugned because, in the first
place, Article 13(6) (a) gives a person aggrieved the right to another legal remedy
besides and appeal. It is quite true that the Article guarantees two alternative remedies,
i.e, the right of appeal or the right to have recourse to another legal redress.

But we should hasten to point out that this circumstance does not effectively meet the
objection taken by the plaintiff in the instant case, namely, that the section goes a long
way to negate each of those two alternative rights. As Mr Tenga says, decisions of the
Industrial Court which are not comport with the weight o evidence, or which are given
per incuriam are in deliberate disregard to the relevant authorities, are by virtue of the
section not impugnable. Yet these are the things which would probably give rise to the
majority of the complaints against the decisions of the Court.

Secondly, it is the opinion of Mr Salula that the Industrial Court is not a one-tier organ,
and that this renders wrong the idea that challenging the decisions of the Court only on
ground of lack or jurisdiction is encroaching upon a person’s right given under Articles
13(6) (a). It is also his observation that the proceedings of the Court are held by a judge
of the High Court and assisted by two assessors, that an elaborate procedure obtains; that
appearance by advocate is allowed; and that in this case the proceedings were concluded

139
by a licid judgment. Upon all this Mr. Salula makes the argument, a startling argument,
that there is no possibility of any abuse of power taking place in the Court.
Beyond doubt, some of those assertions cannot stand the test of logic, and some are
neither here nor there. Mr Salula has not shown how the Industrial Court is not a one –tier
organ. For ourselves, we think there is no way around the fact that the Industrial Court
has all the basic hallmarks of a court of first instance when exercising that particular
jurisdiction, and that it is essentially a one-tier often.
We also think it is idle to deny that section 27(10) purports to whittle down the right
given under Article 13(6) (a). And we consider circumstances like the constitution of the
court, the elaborateness of its procedure, the permissible legal representation and the
elegance or lucidity of the court’s judgments to be completely irrelevant to what is at
issue in this case.

We have ultimately taken the view that section 27 (10) does not abide by Article 13(6)(a).
The section has the effect of curtailing the basic right guaranteed under the Articles as
demonstrated supra and the language of the section precludes any other conclusion. As
already mentioned, we also take the view that the section falls outside the under of
Article 30(2). We so hold

This action therefore succeeds. We are amply satisfied that section 27(10) of the
Industrial Court of Tanzania Act 1967 is unconstitutional and invalid to the extent that it
deprives a person of his basic right of appeal or another legal remedy except on ground of
lack of jurisdiction we so declare.

[COURT OF APPEAL]

REGINA v. PANEL ON TAKE –OVERS AND MERGERS,Ex parte

DATAFIN plc AND ANOTHER

1986 Nov.25.26.27 Sir John Donaldson M.R.

Dec 1:5 Lloyd and Nicholls L.JJ

B. Judicial Review – Panel on Take and Mergers-Complain – panel dismissing complaint

of alleged breach of panel’s code on take-overs and mergers-whether decision subject to
judicial review.

Company-take overs and mergers – reference to city Panel on Take overs and mergers –
C. Take over bid- Alleged breach of panels code on take –over and mergers –Panel
dismissing complaint – Whether decision of panel erroneous – whether panels decision
subject to judicial review.

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The applicants. Who were bidding in competition with N. Plc. To take over another
company complained to the panel of take –over another company. Complained to the
Panel of Take-overs and Mergers that N.Plc had acted in concert with other parties in
breach of the City Code on Take overs and Mergers. The panel dismissed the complaint
and the applicants applied to the High Court for leave to apply for judicial review by way
inter alia . of certiorari to quash the panels decision and of mandamus to compel the panel
to reconsider the complaint .The judge refused leave on the ground that the panels
decision was not susceptible to judicial review.

On the renewed application before the Court of appeal the court ranting leave in order
itself to consider both the substantive application and the question of jurisdiction:-
Held that the supervisory jurisdiction of the High Court was adaptable and could
be extended to any body which performed or operated as an integral part of a system
which performed public law duties.

Which was supported by public law sanctions and which was under an obligation to act
judicially, but whose source of power was not simply the consent of those over whom it
exercised that power; that although the panel purported to be part of a system of self-
regulation and to derive its power solely from the consent of those whom its decisions
affected, it was in fact operating as an integral part of a government framework for the
regulation of financial activity in the city of London was supported by a periphery of
statutory powers and penalties,and was under a duty in exercising what amounted to
public powers to act judicially; that, therefore, the court had jurisdiction to review the
panel’s decision to dismiss the applicants complaint; but that since, on the facts, there
were no grounds for interfering with the panel’s decision the court would decline to
entervene (post,pp.835b-836a, 838b-839a,844e-h,846c-d,848h-849d.h.852a-d)
Reg. v Criminal Injuries Compensation Board, Ex parte lain (1967) 2 Q.B
864,D.C.,applied

Per Sir John Donaldson M.R. In the light of the special nature of the panel, its
function, the market in which it is operating, the time scales which are inherent in that
market and the need to safeguard the position of third parties, who may be numbered in
thousands, all of whom are entitled to continue to
Abadesa (1967) 1 A.C. 826,per Lord Pearce at p.846 . (The emphasis is mine.) If the
judge had taken the latter course, it seems clear that he would have regarded the
responsibility of the plaintiff vis-à-vis each defendant as being 50 per cent.

Section 2(1) of the Act of 1978 requires that as between the two defendants, the
amounts of their respective contributions “shall be such as may be found by the court to
be just and equitable having regard to the extent of that person’s responsibility of the
damage in question. “I see no sufficient grounds for differing from the judge’s conclusion
that the responsibility of each of the two defendants for that part of the injury for which
the plaintiff was not responsible was equal.

I therefore agree that the appeal of each of the defendants should be allowed on
the limited issue of apportionment and that the judge’s order should be varied by giving

141
judgment for the plaintiff against each defendant for 50 per cent. (instead of two-thirds)
of the plaintiff’s claim and by ordering contribution between the defendants on a fifty-
fifty basis.

Appeal of each defendant allowed on the limited issue of apportionment Plaintiff to have
judgment against each defendant for 50 per cent of his claim the contribution to be on a
fifty-fifty basis. Leave to all parties to appeal.

Solicitors:Joynson- Hicks; Barlow Lyde & Gilbert: Underwood & Co.

Application for judicial review.

The applicants, Datafin Plc, and Prudential Bache Securities Inc.. applied for
leave to apply for judicial review of a decision of the Panel on Take-overs and Mergers
on 24 November 1986 under the City Code on Take overs and Mergers with the effect
that an offer by the first interveners, Norton Opax Plx ., for the issued ordinary share
capital of McCorquodale Plc become unconditional. The second interveners were Samuel
Montagu & Co.Ltd .,merchant bankers and financial advisers to Norton Opax. The relief
sought included (1) an order of certiorari to quash the panels decision and/or a declaration
that decision was wrong in law; (2) an order of mandamus requiring the panel to
reconsider and take a proper decision in accordance with the City code; (3) an injunction
to restrain Norton Opax whether by itself its officers, employees agents or otherwise from
(a) acquiring shares in McCorquodale pursuant to Norton Opax offer dated 7 November
1986,or (b) registering any further shares in McCorquodale in the name of Norton Opax
or any nominee of Norton Opax pending the final determination of these proceeding; (4)
costs and further or other relief. The grounds on which relief was sought were inter alia,
that rule 6.2 of the city Code on Take-overs and mergers had been infringed in the course
of Norton Opax’s take-overs bid and the panel’s decision to the contrary was erroneous:
that decisions of the panel were susceptible to judicial review; and that the applicants, as
competing bidders for McCorquodable had a sufficient interest to make the application.

On 25 November 1986, Hodgson J. refused the applicants leave to make that

application and on the same day the applicants renewed the application before the Court
of Appeal. The court granted leave in order to hear the substantive application itself and
to consider more fully the question of jurisdiction. At the conclusion of the hearing, the
court dismissed the substantive application but reserved both its reasons and its decision
on the question of jurisdiction.
The facts are stated in the judgment of Sir John Donaldson M.R.

Jeremy Level Q .C and Derrick Turriff for the applicants. Introduction;there are three
possible situations in which a person affected by a decision may wish to challenge it; (a)
a public duty is owed by the decision-maker, which the person affected may invoke and
obtainjudicial review under R.S.C., Ord.53 (b) a private duty is owed by the decision-
maker,which the person affected can invoke to obtain the normal remedies of private law,
including a declaratory judgment; (c) no duty is owed by the decision maker which the
person affected can invoke.

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A paradigm,but not the only case of public duty,is where the power to take the decision
was derived from public law,e,g a statute, statute, statutoty instrument, prerogative or
some other aspect of the common law. A paradigm case of private duty is where the
decision-maker and the person affected are in contractual relations with each other and
the decision arose exclusively out of, or related exclusively to,the contractual
relationship,Similarly,perhaps ,if the decision affects the person’s (private) right to earn a
living,then the decision maker’s duty might be a private one An example o no duty would
be a decision by the committee of the Garrick Club not to admit a person seeking
election; (If the decision effected an existing member he woild have contractual rights
under (b) above)

The circumstances in which a public duty exists are not confined to situations where the
source of the power lies in public law (the situation considered by; Lord Diplock in
Council of civil Service Union v. Minister for Civil Service (1985) A.C 374.409b). There
are three ways of resting the existence of a public law duty; (i) the aforementioned
“source”test; (ii) “consequences” test: where the decision is made under a system which
has a public law character by reason of the fact that it has consequences in the field of
public law including law including for example, the fact that measures taken in the
exercise of public law powers ; (iii) the “function” test; where the system under which the
decision is made performs the functions of a public law system.

In refusing leave to apply fro judicial review in the present case, Hodgson J. had
in mind both Reg. v. East Berkshine Health Authority Ex parte Warsh (1985)Q.B 152
and Law v. national Greyhound Racing Club Ltd (1983) 1 W.L.R 1302; yet the
circumstances of both cases are different from those of the present case because of the
contractual relationships involved making them essentially private duty cases.

The factual and legal background to the Code on Takeover and Merges; the bank
of England was an important progenitor of not the onlie begetter. The bank of England is
a statutory body with wide powers; see Bank of England Act 1946 section 4. The Bank
clearly performs its relevant function in part in collaboration with the Department of
Trade and Industry. Between them they gave birth to the Joint Review Body which is
engaged in general supervision of the securities market. For the origins of the Code of
Take overs and Mergers, see Halsbury Laws of England 4th ed. (1974), vol, 7,para 791.
The code is a code of ethics, not a code of law. Until recently, the Council of the
Securities Industry had been involved in its enforcement, but in 1985 the Panel on Take-
overs and Mergers assumed sole responsibility.

(The Securities and Investments Board is not yet in full operation) The code is statutorily
recognised; see, for example paragraph 10 of the Schedule to the Restrictive Trade
Practices Act 1976 Sanctions for breach of the code are set out in the introduction to the
code and include expulsion from the securities markets and reference to the Department
of Trade and Industry, the Stock Exchange or other appropriate body, which would use
statutory or contractual powers to penalize any transgressor. A breach of the code is ipso

143
facto an act of misconduct by a member of the Stock Exchange, for which he may be
expelled.

Furthermore, the admission of shares to the Official List may be withheld in the event of
such a breach. The listing of securities is a statutory function performed by the Stock
Exchange under the Stock Exchange (Listing) Regulations 1984 (S.I 1984 No. 716),
made, pursuant to section 2(2) of and paragraph 2(2) of the Schedule to, the European
Communities Act 1972, in implementation of E.E.C. directives. Thus a sanction for
breach of the code – delisting – involves the exercise of a statutory power. Therefore the
code has many of the characteristics of law, but lacks the redeeming reatures of a legal
system.

The historical development of the court’s supervisory jurisdiction by way of

judicial review may be outlined as follows. (1) Rex v. Electricity Commissioners, Ex
parte London Electricity Joint Committee Co. (1920) Ltd. (1924) 1 K.B 171, 205, per
Lord Aktins. (2) Reg. v. Criminal Injuries Compensation board, Ex parte Lain (1967) 2
Q.B 864,882, 884 – 885b per Lord Parker C.J and Diplock L.J (3) O’Reilly v. Mackman
(1983) 2 A.C 237, 279 b-g, per Lord Diplock. 4) Council of Civil Service Unions v.
Minister for the Civil Service (1985) A.C 374 407h. where Lord Diplock castigates the
treatment of previous judicial dicta. Which were never intended to be exhaustive as if
they were statutes. See also per Lord Roskill at p. 414 E-F emphasizing the evolutionary
nature of the law on judicial review.

Does the Panel on Take –overs and Mergers owe a public duty? One answers this
by reference to the three tests of the existence of a public law duty outlined above. (1)
Applying the source test there was an implied devolution by the government to the panel
of a power to regulate transactions covered by the code. That power came through the
Bank of England and in the Joint Review Body through the Department of Trade and in
the Joint Review Body, through the Department of Trade and Industry. The Bank of
England appoints the chairman and deputy chairman of the panel.

All this has been done for the better governance of the realm; and in all the circumstances
it is impossible to say that the system established by the code operated by the panel has
nothing to do with the government.

The role of the government in this area is emphasized by a recommendation of the E.E.C
Commission in 1977 to the effect that governments should set up regulatory systems such
as that provided by the Code (2) Applying the consequences test: where a decision taken
under the system which has a public law character because it has consequences in a
public law field, measures taken include public law measures.

Note references to consequences in Reg. v. Criminal Injuries Compensation Board, Ex

parte lain(1967) 2 Q.B. 864,884, and in O’Reilly v. Mackman (1983) 2 A.C 237. See also
Rex v. Boycott, ex parte Keasley (1939) 2 K.B. 171 and Nagle v. Feilden (1966) 2 Q.B.
633,615, per Saimon L.J (3) Applying the function test: despite the fact that the code

144
claims not to contain legal rules, it does have legal consequences and the power to make
decisions comes from the code and the rules.

The function performed by the panel is a public law function: it is regulatory in a public
rather than a private sense, as can be seen from the way it operates and the consequences
of breach.
Furthermore, any attempt to oust the jurisdiction of the courts by proclaiming the non-
legal nature of the code must be against public policy

Robert Alexander Q.B. Timothy Lloyd Q.C. and Keith Rowley for the panel. The
question of the courts jurisdiction over the panel is important for all self regulating
bodies. The City is traditionally self regulating and remains substantially so, subject to
the Financial Services Act 1986. That Act does not expressly deal with the Panel on
Take-overs and Mergers.

In many cases of self regulation there may be a right to a remedy in private law, usually
arising out of a contractual relationship. The absence of a public law jurisdiction does not
necessarily deprive persons affected of a remedy. For example where someone alleges
that the rules of a body as to its membership are in restraint of trade, it is open to him to
bring an action notwithstanding that he is not a member on that body: Eastham v.
Newcastle United Football Club Ltd.(1964) Ch.43. But in such a case there would be no
jurisdiction in public law over that body.

Self-regulation stems from a realization by a group that the regulation of their

activities is desirable in the common interest That group accepts that rules for the
performance of functions and duties should be established and enforced.

The success of self –regulation depends on (i) rules being drawn up by responsible and
acceptable responsible bodies: (ii) the observance of those rules; (iii) respect for the
decisions of those bodies by these affected; (iv) those who operate in the market
accepting that the rules and their obedience to them are essential as an aspect of entering
the market at all. In assessing whether the rules provide sufficient protection it is right to
remember that no one can survive in the market without the confidence of others and that
such rules ultimately serve the public interest.

The Panel on Take- overs and Mergers in denying the jurisdiction of the court, is
not claiming a licence to take wrong decisions. The panel may be required to take
decisions swiftly and finally. When a ruling is asked for in the course of a bid it may
affect the outcome of the bid before or after it has succeeded. If the latter then the shares
will already be traded under the new name. In the former case, if a dissatisfied party
rushes to court, it will have the effect of dislocating the market during a takeover
situation. However fast the court is able to act. If the panel is called to resolve a conflict
between parties and their financial advisers, there is an overwhelming need fro speedy
finality. An application to the court may be made as a defensive measure during a bid, to
create uncertainty even after the outcome of the bid is known.

145
It could be used as a ploy. The importance of finally was stressed by Sir John Donaldson
M.R. in Reg. v. Monopolies and Mergers Commission Ex parte Argyll Group Plc (1986)
1 W.L.R 763, 774H. This is a valid policy consideration when considering whether to
extend jurisdiction.

The Code on Take-overs and Mergers already contains certain safeguards for
those affected by its decisions, including a right of appeal Where a party is affected by
virtue of their membership of the Stock Exchange they can rely on the contractual
relationship already existing to provide a private law remedy.

The panel is only susceptible to judicial review if it satisfies the traditional criteria
for determining whether it is fulfilling a public duty. This depends on power; more
particularly, the source of that power. To suggest, as do the applicants, that a body whose
power does not derive from a public source can still be subject to public law if it
performs a public law function with public law function with public law consequences, is
to deny a fundamental aspect of public law. Moreover the fact that either the Restrictive
Trade Practices Act 1976 or the Restrictive Trade Practice (Service) Order 1976 refer to
an agreement or recommendation or activity of another body does not render the
functions of that body public law functions. The exempted agreements listed in Schedule
3 to the Act are clearly not within the ambit of public law. So far as the Stock Exchange
(Listing) Regulations 1984 are concerned, the fact that a part (the Stock Exchange)
governed by public law implements (directly or indirectly) a decision by a third party (the
panel) not within the public law domain does not bring that third party into the public law
forum. In any case the Stock Exchange is only subject to public law by virtue of those
regulations.

The source of its power remains of critical importance to any determination as to

whether a body is subject to judicial review. That source might lie in primary or
secondary legislation More over, it is clear from Council of Civil Service Unions v.
Minister for the Civil Service (1985) A.C 374 that If the Crown exercises its prerogative
through a statutory instrument, then the source is such as to render it liable to judicial
review. Review might also lie if the Crown exercised its prerogative without a Statutory
Instrument. The applicants second (consequences) and third (function) tests represent an
extension of the law because they enable review to take place without looking at the
critical element, namely the source of the power to take the decision under review.

The seriousness of the consequences, or of the public interest involved, is not the correct
test. Public law operates against those bodies which could be the subject of prerogative
writs. The Order 53 procedure has not expanded the scope of operation o public law in
the sense of having extended the category of bodies which could be subject to prerogative
orders In O’Reilly v. Mackman (1983) 2 A.C. 237, Lord Diplock observed that Order 3
did not create new remedies but was essentially procedural. In Council of Civil Service
Unions v. Minister for the Civil Service (1985) A.C. 374,408-409, Lord Diplock, setting
our the types of action which were reviewable, emphasized throughout the importance of
the source of public law powers. See also Reg.v. Criminal Injuries Compensation Board,
Ex parte Lain (1967) 2 Q.B. 864 and Reg. v. Post Office, Ex parte Byrne (1975) I.C.R.

146
743. All these cases show that it is the source of power that determines whether judicial
review should lie.
The panel is performing a duty which it is in the public interest should be
performed, but it is not a public duty. It is a private duty, because Parliament in its
wisdom has decided to leave this area subject to self- regulation. (Reference was made to
Law v. National Greyhound Racing Club Ltd (1983) 1 W.L.R 1302; Reg .v. East
Berkshire Health Authority, Ex parte Walsh (1985) Q.B 152; O’Reilly v. Mackman
(1983) 2 A.C. 237 and Nagle v. Feilden (1966) 2 Q.B. 633.) A body is only subject to
judicial review where its decisions affect persons qua subjects of the realm. Such a body
must be established by a governmental power: see, generally, Reg.v. Criminal Injuries
Compensation Board Ex parte Lain (1967) 2 Q.B. 864; Rex v. Electricity Commissioners,
Ex parne London Electricity Joint Committee Co. (1920) Ltd. (1924) 1 K.B. 171: In re
Clifford and O’Sullivan (1921) 2 A.C 570; O’Reilly v. Markman (1983) 2 A.C 237; Reg.
v. Barnsley Metropolitan Borough Council, Ex. Parte Hook (1976) 1 W.L.R 1052; Reg.v.
Aston University Senate, Ex pane Roffey (1969) 2 Q.B 538 Sirros v. Moore (1975) Q.B
118 and Reg. v. Post Office, Ex parte Byrne: (1975) I.C.R 221:
On the facts of this case, the panel does not derive its power from a public source
The applications rely on a devolution of power through the Bank of England and the
Department of Trade and Industry but the only statutory powers the Bank of England has
are the power to give directions to other banks (under the Bank of England Act 1946) and
the power to grant banking licenses. Otherwise, it has no power over other institutions.
The Joint Review Body is a wholly informal body which does not exercise powers. It is
and has been the policy of governments to leave such institutions to self regulations. The
applicants cannot rely on the fact that other bodies, such as the power to list or de-list or
de-list stocks. Which apply the standards of the panel as making the panel subject to
judicial review. Finally, the applicants’ reliance on the function test runs counter to the
decision of the House of Lords in In re Clifford and O’Sullivan (1921) 2 A.C 570
(Counse) also referred to a skeleton argument which is substantially quoted in the
judgment of Sir John Donaldson M.R..post. p. 839 D-H)
Jonathan Sumption Q.C. and Stephen Richards for the interveners. It is against the
public interest for decisions of the Panel on Take-overs and Mergers to be subject to
judicial review. As an essential component in a system of self-regulation. It is imperative
that the panel should be able to make decisions with absolute finality in view of the
damage otherwise done to the smooth operation of the market. If a party which is
unsuccessful before the panel is able to apply for judicial review it will soon become a
device to which anyone wanting to frustrate a bid will be able to resort.

Even if the panel is subject to judicial review, the chances of the court’s discretion
being exercised in favour of an applicant are slim indeed. An application for judicial
review is not an appeal. It is for the panel to hear and evaluate the evidence and to find
the relevant facts. The court can only interfere if there has been illegality (the panel has
misdirected itself in law), irrationality (no reasonable panel could have reached such a
decision) or procedural impropriety (failure by the panel to conform to the rules
governing its own conduct or to basic rules of natural justice)
On the chronology to the take-over bid, once a bid goes unconditional as to
acceptances (i.e acceptances exceed 50 per cent) it is undesirable that there be any

147
substantial lapse of time before the bid goes unconditional in all respects. Otherwise
those who have already accepted the bid cannot trade their stock. A contract is formed
between the offeror and each accepting shareholder from which neither can resile. It is
common ground that in this case, the Norton Opax bid had gone unconditional as to
acceptances. Once that happens, none of these contracts is conditional on the approval of
the panel.
The applicants make three basic complaints. First they allege that in breach of the
Code on Take-overs and Mergers. Norton Opax failed to increase its offer to
McCorquodale shareholders, other than core sub-underwriters to reflect the increased
consideration paid to core sub-underwriters and the parent company of the principal core
sub-underwriter for the McCorquodale shares acquired by it from them. But Norton Opax
did not pay any increased consideration for McMorquodale shares either to the core sub-
underwriters or indeed to anyone else.

Under the terms of the underwriters agreements, the success of the bid have the core sub-
underwriters the entitlement to an increased underwriting fee, but that was no part of the
consideration for the McCorquodale shares had been assented to Norton Opax by
someone other than a core sub-underwriter. But in any case since this point was not put to
the panel it cannot be argued here.

Secondly the applicants allege that in breach of the code the Kuwait Investment
Office (K.I.O) acted in concert with Norton Opax in that for whatever reasons they had
an agreement with Samuel Montagu & Co Ltd . Norton Opax’s merchant banker which
gave them an incentive to see that Norton Opax’s offer became unconditional and they
did so by purchasing shares at a price 12.2p in excess of the cash price offered by Norton
Opax and by assenting those share to Norton Opax. Essentially this amounts to an
allegation that an agreement which which gives underwriters an interest in the success of
the bid makes the underwriter a concert party if he purchases shares in the target
company.

But that does not come within the definition of “concert party” in the code and it is not
for the court to make it do so now.

Thirdly the applicants allege that in view of the timing of and the price paid by
K.I.O in their purchase of McCorquodale shares the fact that they were purchased
through one of the brokers to Norton Opax and the assenting of those shares to that oer
the panel cold not properly fail to conclude that K.I.O and Norton Opax were acting in
concert, unless it misdirected itself in law by erroneously assuming that in order to
support such a finding it would have to have found that there had been communication
between Norton Opax and K.I.O in connection with those share purchases.

This complaint is no doubt partly based on a sentence in the report to the panel’s
executive; “Certain of (the core underwriters) met the management for the standard
presentation during the offer in the normal way but in fact K.I.O never met the
management at all. The applicants assume from this first that the executive regarded that

148
as conclusive of the absence of a concert party situation and secondly that the panel did
likewise. But it is clear from the affidavit evidence of Sir Jasper Hollom, chairman of the
panel, that the panel make no such error.

The panel approached the matter on the assumption that for a “concert party” to exist
there had to be an agreement or understanding between the parties, and in the absence of
contact at the presentation meeting, evidence had to be found elsewhere to support such a
finding. Such evidence, sufficient to satisfy the panel, was not adduced, who therefore
concluded that K.I.O’s decision to purchase the shares was made for genuine investment
reasons all of which explained both the purchase and its timing.

In any event these were all matters of fact for the panel to consider so that even if
the court had jurisdiction to intervene,it should not exercise its discretion in favour of
doing so. But for the reasons given both on behalf of the interveners and previously on
behalf of the panel itself, the court has no jurisdiction to intervene and the application
should be refused.

Lever in reply referred to Reg. v. Inland Revenue Commissioners Ex parte

National Federation of Self-Employed and Small Businesses Ltd.(1982) A.C 617,642-
642-643,per Lord Diplock; O’Reilly v. Mackman (1983) 2 A.C. 237,257-258,per Lord
Denning M.R; In re Clifford and O’Sullivan (1921) 2 A.C 570; Reg v. Criminal Injuries
Compensation Board,Ex patre Lain (1967) 2 Q.B 864; Ridge v. Baldwin (1964) A.C 40;
Rex v. Rorpell(1776) 2 Cowp. 458,Reg v. Barnsley Metropolitan Borough Council, Ex
parte Byrne (1975) I.C.R. 221.

The reality of the situation is that the self-regulation urged by the respondents
does not exist. The right of a man to offer to buy another’s property is restricted by
statutes such as the Fraud (Investment) Act 1958. He has to go through an authorised
person or obtain the permission of the Department of Trade and Industry. Datafin cannot
make an offer except subject to the restrictions imposed. This strongly supports the
concept o implied devolution and the role of the function test which the applicants urge
upon the court. It is hollow to speak of self-regulation here; what we are discussing is
clearly a public law. It must be a matter of deep concern to the courts if such a system can
operate out with the law.

Even if a private remedy is available that is not fatal to a claim for judicial review.
Only if the decision concerned is taken specifically by reference to a private law situation
will it be excluded from the public law jurisdiction. Even if there is a private law
relationship in the present case, this decision was not taken in that context, so it is no bar
to the availability of the Order 53 jurisdiction.

5 December. The following judgments were handed down.

SIR JOHN DONALDSON M.R. T he Panel on take-overs and Mergers is a truly

remarkable body. Perched on the 20th floor of the Stock Exchange building in the City of
London, both literally and metaphorically it oversees and regulates a very important part

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of the United Kingdom financial market. Yet it performs this function without visible
means of legal support.

The panel is an unincorporated association without legal personality and, so far as

can be seen, has only about twelve members. But those members are appointed by and
represent the Accepting Houses.

Committee, the Association of Investment Trust Companies, the Association of British

Insurance, the Committee of London and Scottish Bankers, the Confederation of British
Industry, the Council of the Stock Exchange, the Institute of Chartered Accountants in
English and Wales the Issuing Houses Association the National Association of Pension
Fund, the Financial Intermediaries Managers and Brokers Regulatory Association, and
the Unit Trust Association; the chairman and deputy chairman being appointed by the
Bank of England. Furthermore, the panel is supported by the Foreign Bankers in London,
the Foreign Brokers in London and the Consultative Committee of Accountancy Bodies.
It has no statutory prerogative or common law powers and it is not in contractual
relationship with the financial marker or with those who deal in that market. According to
the introduction to the City Code on Take-overs and Mergers which it promulgates.

The code has not and does not seek to have, the force of law, but those who wish
to take advantage of the facilities of the securities markets in the United Kingdom should
conduct themselves in matters relating to take-overs according to the code. Those who
do not so conduct themselves cannot expect to enjoy those facilities and may find that
they withheld.

The responsibilities described herein apply most directly to those who are actively
engaged in all aspects of the securities markets but they are also regarded by the panel as
applying to directors of companies subject to the code to persons or groups of persons
who seek to gain control (as defined) of such companies and to all professional
advisers(insofar as they advise on the transactions in question).

Even where they are not directly affiliated to the bodies named in section (1)(a). equally
where persons other than those referred to above issue circulars to shareholders in
connection with take-overs the panel expects the highest standards of care to be observed.

The provisions of the code fall into two categories. On the one hand the code enunciates
general principles are a codification of good standards of commercial behavior and
should have an obvious and universal application. On the other hand, the code lays down
a series of rule some of which are no more than examples of the application of the
general principles whilst others are rules of procedure designed to govern specific forms
of take-over. Some of the
General principles based as they are upon the concept of equity between one shareholder
and another while readily understandable in the city and those concerned with the
securities markets generally would not easily lend themselves to legislation.

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The code is therefore framed in non-technical language and is primary as a measure of
self-discipline
Administered and enforced by the panel. A body representative of those using the
securities markets and concerned with the observance of good business standards rather
than the enforcement of the law as indicated above the panel executive is always
available to be consulted and where there is doubt this should be done in advance of any
action. Taking legal or other professional advice on matters of interpretation under the
code is not an appropriate alternative to obtaining a view or a ruling from the executive.

Self-regulation is an emotive term it is also ambiguous. An individual who voluntarily

regulates his life in accordance with started principle because he believes that this is
morally right and also perhaps in his own long term interests or a group of individuals
who do so are practicing self-regulation. But it can mean something quite different. It
can connote a system whereby a group of people, acting in concert, use their collective
power to force themselves and others to comply with a code of conduct of their own
devising. This is not necessarily morally wrong or contrary to the public interest.
Unlawful or even undesirable. But it is very different.

The panel is a self-regulating body in the latter sense. Lacking any authority de
jure, It exercises immense power de facto by devising promulgating, amending and
interpreting the city code on take-overs and mergers by waiving or modifying the
application of the code in particular circumstances, by investiagating and reporting upon
alleged breaches of the code and by the application or threat of sanctions. These sanctions
are no less effective because they are applied indirectly and lack a legally enforceable
base. Thus to quote again from the introduction to the code.

If there appears to have been a material breach of the code, the executive invites
the person concerned to appear before the panel for a hearing. He is informed by letter of
the nature of the alleged breach and of the matter which the director general will present.
If any other matters are raised he is allowed to ask for an adjournment if the panel finds
that there has been a breach, it may have recourse to private reprimand or public censure
or, in a more flagrant case to further action designed to deprive the offender temporarily
or permanently of his ability to enjoy the facilities of the securities markets.

The panel may refer certain aspects of a case to the Department of Trade and Industry,
the Stock Exchange or other appropriate body. No reprimand, censure or further action
will take place without the person concerned having the opportunity to appeal to the
appeal committee of the panel.

The unspoken assumption, which I do not doubt is a reality, is that the Department of
Trade and Industry or, as the case may be, the Stock Exchange or other appropriate body
would in fact exercise statutory or contractual powers to penalize the transgressors. Thus,
for example, rules 22 to 24 of the Rules of the Stock Exchange (1984) provide for the
severest penalties, up to and including expulsion, for acts of misconduct and by rule 23.1

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 “Acts o misconduct may consist of any of the following….(g) Any action which
has been found by the Panel on Take-overs and Mergers (including where reference has
been made to it, the appeal committee of the panel) to have been in breach of the City
Code of Take-overs and Mergers. The findings of the panel, subject to any modification
by the appeal committee of the panel, shall not be re-opened in proceeding taken under
rules 22 to 24.

The principal issue in this appeal, and only issue which may matter in the longer
term, is whether this remarkable body is above the law. Its respectability is beyond
question. So is its bona fides.

I do not doubt for one moment that it is intended to and does operate in the public interest
and that the enormously wide discretion which it arrogates to itself is necessary if it is to
function efficiently and effectively. Whilst not wishing to become involved in the
political controversy on the relative merits of self-regulation and government or statutory
regulation, I am merits of self-regulation and government or statutory regulation is
preferable in the public interest.

But that said, what is to happen if the panel goes off the rails? Suppose perish the though,
that it were to use its powers in a way which was manifestly unfair. What then? Mr.
Alexander submits that the panel would lose the support of public opinion in the financial
markets and would be unable to continue to operate. Further or alternatively, Parliament
could and would intervene Maybe, but how long would that take and who in the
meantime could or would come to the assistance of those who were being oppressed by
such conduct?
A somewhat similar problem confronted the courts in 1922 when the Council of
the Refined Sugar Association a self-regulatory body for the sugar trade and no less
respectable than the panel, made a rule which purported to preclude any trader from
asking a trade arbitrator to state a case or the opinion of the court or from applying to the
court for an order that such a case be stated. The matter came before a Court of Appeal
consisting of Bankers. Atkin and scrutton L.JJ: see Czarnikow v. Roth, Schmidt & Co
(1922) 2 K.B 478. The decision has no direct application to the present situation, because
the court was concerned with the law of contract, but its approach was traditional,
significant and in the case of Scrutton L.J… colourful. This approach can be illustrated
by brief quotations from the judgments. Bankers L.J said at p. 484:

“To release real and effective control over commercial arbitration is to allow the
arbitrator, or the artitration tribunal to be a law unto himself, or themselves to give him or
them a free hand to decide according to law or not according to law as he or they think fit
in other words to be outside the law. At present no individual or association is, so far as I
am aware, outside the law except a trade union. To put associations as the Refined Sugar
Association in a similar position would in my opinion be against public policy. Unlimited
power does not conduce to reasonableness of view or conduct.

Scrutton L.J. said, at p. 488

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“In my view to allow English citizens to agree to exclude this safeguard for the
administration of the law is contrary to public policy. There must be no Alsatia in
England where the King’s write does not run.

Atkin L.J. said, at p 491:

I think that it is still principle of England law that an agreement to oust the jurisdiction of
the courts is invalid…..in the case of powerful associations such as the present able to
impose their own arbitration clauses upon their members and by their uniform contract
conditions upon all non-members contracting with members the result might be that in
time codes of law would come to be administered in various trades differing substantially
from the English mercantile law. The policy of the law has given to the High Court large
powers over inferior courts for the very purpose of maintaining a uniform standard of
justice and one uniform system of law…if an agreement to oust the common law
jurisdiction of the court is invalid every reason appears to me to exist for holding that an
agreement to oust the court of this statutory jurisdiction is invalid.”

Thus far I have made no mention of the facts underlying this application or of the
parties other than the panel. This is not accidental but reflects the fact that the major issue
of whether the courts of this country have any jurisdiction to control the activities of a
body which de facto exercises what can only be characterized as powers in the nature of
public law powers does not depend upon those particular facts. Nor has the issue of how,
in principle the court should exercise any jurisdiction which it may have. The facts are
only relevant to whether this is an appropriate case in which in accordance with such
general principles to exercise any such jurisdiction. However I should now remedy the
deficiency.

The applicants for relief by way of judicial review are Datafin Plc an English
company and Prudential Bache Securities Inc of New York In addition there appear as
interveners. Norton Opax Plc and Samuel Montagu & Co. Ltd their merchant bankers and
financial advisers both being English companies. Other members of the cast, albeit not
parties to the proceedings are Greenwell Montagu & Co Ltd the stock broking arm of
Samuel Montagu: Laurence Prust, another stockbroker; the Kuwait Investment Office
(K.I.O) a major investor in the United Kingdom financial market; and McCorquodale
Plc., an English printing company, which was the target for the take-over bids which
precipitated the present proceedings. I can take the background facts from the paper
prepared by the executive of the panel.

“2.1 In March 1986 Norton Opax made its original offer for McCorquodale, but
the offer lapsed in April on reference to the
Alsatias. The colloquial name (which first appears in Shadwell’s plays in the time of
Charles 11) for recognized areas of sanctuary for criminals survivals of the mediaeval
sanctuaries, which jested till the end of the 17th century in London. The one which gave
its name to the others was Alsatia or Whitefriars, between Fleet Street and the Thames
but the Southward Mint the Minories and other places were other convenient refuges for
thieves”; see The Oxford Companion to law (1980),p 50

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Monopolies and Commission. On 24 September it was announced that the M.M.C had
concluded that the acquisition would not operate against the public interest. Norton Opax
was then free to proceed with its offer. 2.2 On 25 September 1986 Norton Opax
announced its final offer for McCorquodate. The offer was two new Norton Opax
ordinary shares for each McCorqodale ordinary share and at that time, valued each
McCorqodale ordinary share at 290p. In addition there was an underwritten cash
alternative o 260p per McCorquodale, advised by Kleinwort Benson, recommended
shareholders to reject the offer 2.3 On 1 November 1986 a competing offer was
announced.

The offeror was Datafin a new company formed by certain executive director and
members of the management of McCorquodate and backed by a number of financial
institutions led by Prudential Bache. The offer was 300p cash per McCorquodate share.
Subsequently on 6 November 1986. Norton Opax announced an increased final offer of
seven new Norton Opax ordinary shares for every three McCorquodate shares valuing
each McCorquodate share (on the basis of Norton Opax’s share price at the time) at
340.7p with an underwritten cash alternative of 303.3p per share.

Datafin then increased its offer first to 310p and subsequently to 315p cash per share 2.4
During the course of the offers Mr. Robert Maxwell acquired a substantial shareholding
in McCorquodate and by the time of the announcement of Datafin’s final offer held some
22 percent. At that stage he undertook to commit his entire shareholding to Norton
Opax’s offer on the basis that if it failed both his shareholding as to acceptances having
received acceptances representing 50.2 per cent of the share capital of McCorquodate
At the request of the executive, Norton Opax has agreed not to declare its offer fully
unconditional pending the result of this hearing.

Both the alternative cash offers by Norton Opax were underwritten in a novel, but
not unprecedented, form, involving core underwriters and core sub-underwriters as
contrasted with traditional market underwriters. The executive reported:

“Under these arrangements in outline, a number of potential sub-underwrites are

identified who are prepared to accept a lower commission If the offer fails, on the basis
of a higher on if it is successful. This practice has recently developed and its rationale is
apparent in the case of companies bidding for other larger than themselves where there is
a particular need to save costs if the bid is unsuccessful.

It was first used in the Argyll/Distillers offer and was also seen as relevant for Norton
Opax’s bid for McCorquodate Both core underwriters and market underwriters receive a
greater commission if the bid is successful, but the difference is more marked in the case
of the core underwriters. Full details of the commission arrangements are set out in
Samuel Montagu’s submission but they can be summarized as follows. (1) Market
underwriters receive a commitment commission of per cent for each period of 7 days (or
part) in excess of 30 days (2) Core underwriters receive a commitment commission of per
cent increased to 1 per cent if the bid is successful. (3) Both market and core underwriter

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receive a further ⅔ per cent based upon the value of Norton Opax shares allotted pursuant
to the offer in respect of acceptances received up to the time cash alternative closes.

Approximately 100 million Norton Opax shares were involved in the initial
underwriting on 25 September; of these K.I.O sub-underwrote some 11 million as core
underwriter and 8 million as market underwriter. For the increased final offer announced
on 6 November some 89 million Norton Opax shares were underwritten K.I.O taking
approximately 11 million as core underwriter.

In each case the proportion of shares underwritten by K.I.O was greater than that of other
sub-underwriters although it is noteworthy that one other core sub-underwriters took 10
million shares in the second underwriting. Moreover Greenwell Montagu have said that
K.I.O’s share was not disproportionately large, given that K.I.O are generally the
greatest participant in their underwriting list, owing to their substantial size.

Consistently with the panel’s declared intention of doing equity between one
shareholder and another the code contains rules which prevent an offeror from buying
shares at prices higher than that contained in his offer without revising that offer upwards
to march those prices and which also prevent him increasing any offer which has been
made on the expressed basis that it would no thereafter be increased.

These rules would be ineffective if while the offeror was subject to restrictions upon his
conduct his servants agents or those acting in collaboration with him remained wholly
free to take whatever action they thought fir. Accordingly the rules contain restrictions
upon the freedom of action of persons acting in concert with the offeror quaintly referred
to as “concert parties”. They are “defined” in the rules as follows, although it should be
noted that whilst part of the definition could be properly so described, the remainder
involves a rebuttable presumption that certain parties fall within the definition:

“Acting in concert
“This definition has particular relevance to mandatory offers and further guidance
with regard to behaviour which constitutes acting in concert is given in the notes on rule
9.1

Person acting in concert comprise persons who pursuant to an agreement or

understanding (whether formal or informal), actively co-operate, through the acquisition
by any of them of shares in a company to obtain or consolidate control (as defined below)
of this definition the following persons will be presumed to be persons acting in concert
with other persons in the same category unless the contrary is established: - (1) a
company, its parent, subsidiaries and fellow subsidiaries, and their associated companies,
and companies of which such companies are associated companies, all with each other
(for this purpose ownership or control of 20 per cent) or more of the equity share capital
of a company is regarded as the test of associated company status); (2) a company with
any of its directors (together with their close relatives and related trusts): (3) a company
with any of its pension funds; (4) a person with any investment company, unit trust or
other person whose investments such person manages on a discretionary basis; (5) a

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financial adviser with its client in respect of the shareholdings of; (a) the financial
adviser; and (b) all the investment accounts which the financial adviser manages on a
discretionary basis, where the percentage of the client’s equity share capital held by the
financial adviser and those investment accounts totals 10 per cent or more; and (6)
directors of a company which is subject to an offer or where the directors have reason to
believe a bona fide offer for their company may be imminent.

Note where the panel has ruled that a group of persons is acting in concert, it will
be necessary for clear evidence to be presented to the panel before it can be accepted that
the position no longer obtains.”

It is common ground that Datafin and Prudential-Bache, as the leading financial

backer of Datafin’s bid, are concert parties. According neither could seek to obtain
further shares in McCorquodale at a price is excess of 315p cash per share, the figure put
forward in Datafin’s final offer.

It is also common ground that Norton Opax and Laurence Prust/Greenwell Montagu the
two brokers to the offer whilst acting as such were concert parties, as were Norton Opax
and Samuel Montagu their merchant bankers. So too were K.I.O and Greenwell Montagu
when acting on their behalf, but K.I.O was subject to no relevant restrictions under the
rules, provided that it was not acting in concert with one or other of the rival bidders.

However, Datafin and Prudential- Bache maintained that K.I.O and Norton Opax
were concert parties and that K.I.O had acted in breach of the code in authorizing
Greenwell Montagu to buy some 2.4 million McCorquodale share on its behalf from Sun
Life Assurance Society Plc. (“Sun Life”) as a price of 315.5p on 17 November 1986
immediately after Datafin had made a final offer of 315p and in assenting those shares to
Norton Opax’s offer.

The basic facts upon which this charge was founded were as follows. (a) K.I.O
had a significant interest in the Norton Opax bid being successful, since, in that event
under the core underwriting arrangement it would be paid about £350,000 in
underwriting fees, whereas it would only receive £35,000 if the bid failed. (b) The
£350,000 would be paid by Norton Opax through the principal underwriter, K.I.O being
sub-underwriters. (c) The purchase of the Sun Life shares was suggested to K.I.O by
Greenwell Montagu, one of the joint brokers to the Norton Opax bid (d) K.I.O assented
the shares to the Norton Opax bid. (e) K.I.O could have bought McCorquodale shares on
the market at a price below 315.5p per share before the final Datafin offer was made at
315p per share and at a time when Datafin might thereby have been induced to raise its
earlier bid, but failed to do so.

On these facts Datafin and Prudential-Bache concluded that there must have been
some agreement or understanding (formal or informal) between Norton Opax and K.I.O
actively to co-operate through the acquisition of shares in McCorquodale in order to
obtain control of that company. They further contended that K.I.O as a concert party with
Norton Opax had offered Sun Life more than 303.3p per share the Norton Opax cash

156
alternative and that, reading the underwriting agreement and the offer together, Norton
Opax had agreed to acquire the ex-Sun Life McCorquodale shares from K.I.O at a price
excess of that on offer to other shareholders in McCorquodale, since the assent of these
shares tipped the balance in favour of the success of the bid and entitled K.I.O to a bonus
of the additional underwriting fee.

This complaint against Norton Opax and K.I.O was put to the panel and
considered by the executive which heard evidence and concluded;
“6 The views of the executive 6.1 In order that Norton Opax and K.I.O can be
regarded as acting in concert, it must be established that there is an agreement or
understanding which provides for active co-operation between them; that such co-
operation includes the purchasing of McCorquodale shares by one of them; and that any
such purchasing is for the purpose of obtaining and consolidating code control of
McCorquodate. 6.2 To reach a conclusion of acting in concert, the executive considers
there should be evidence that leads to that conclusion or circumstances must be such that
it should on balance be inferred that the relevant parties were acting in concert. In this
case the executive has no reason to doubt the facts and statements of intentions as
recounted by representative of Norton Opax. Greenwell Montagu, Laurence Prust and
K.I.O.

The fact that people may act with similar intentions or that someone may purchase further
shares with a view to becoming a substantial shareholder in the offeror will not of
themselves amount to evidence of a concert party 6.3 K.I.O is one of the most substantial
investment institutions, in this country. For this reason it is generally offered a large share
in underwritings by brokers, and deals with Greenwell Montagu on this basis.

The particular type of underwriting arrangement entered into in connection with the
Norton Opax offer, involving K.I.O’s role as a “core” underwriter, although not the norm,
is by no means extraordinary. The core underwriters were not approached before the day
the offers were announced, did not know each other’s identity and received no special
presentation Certain of them met the management for the standard presentation during the
offer in the normal way but in fact K.I.O never met the management at all.

The executive is therefore of the view that the underwriting arrangements do not provide
evidence of any agreement or understanding providing for active co-operation between
K.I.O and Norton Opax for the purpose of obtaining control of McCorquodale. The
executive has discussed the subsequent purchases of McCorquodale shares with K.I.O As
stated above, K.I.O , have said that the purchase of McCorquodale shares was seen
simply as an opportunity for acquiring a significant interest in the combined Norton Opax
McCorquodale group and was motivated solely by investment criteria. The executive see
no reason to doubt K.I.O’s motives in this respect. The fact that K.I.O sought to become a
substantial shareholder in the combined group cannot of itself give rise to a presumption
of concernedness. The purchase price of the McCorquodale shares is also worthy of note.
At 315½p it was only ½p in excess of Datafin’s offer. The exposure to K.I.O in the event
that the Norton Opax offer lapsed was therefore minimal since it would be able to realize
315p in accepting the Datafin offer.

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The executive has also discussed the purchases with the other investment institutions
involved; again in each case the executive has been assured that the purchases were made
solely with a view to investing in the combined group. 6.4 In conclusion the executive is
of the offer has there been any agreement or understanding between K.I.O and Norton
Opax which leads to their being held to be acting in concert.

“7 Consequences of the executive ruling 7.1. If the panel agrees with the executive’s
ruling the executive recommends that Norton Opax should be released from its
undertaking not to declare the offer wholly unconditional 7.2 If the panel were to take the
contrary view to the executive it would be necessary to address the question of how to
deal with the consequences in the context of a final offer.

On the one hand, to order an increased offer under either rule 6 or rule 11 would be
problematic; as has been stated above, since the offer was expressed to be final, it could
be argued that a concert party should not enable the offeror to increase his offer when he
would otherwise be precluded from doing so. On the other hand to require the bid to
lapse might be equally inappropriate.

The complaint was futher considered by the panel itself which also heard evidence. If
dismissed the complaint the chairman saying:

“The panel have carefully considered the evidence laid before them in this case and I
have to tell you that they are not convinced that a concert party did exist in code terms in
this instance; and they therefore, uphold the ruling of the executive on that point.

The panel did go on to consider more generally the position of – the relationship of – core
underwriting arrangements in circumstances such as these and they would wish to add a
rider to the effect that the gearing effects core underwriting arrangements have could in
their view, in particular circumstances, in particular cases, be such as to contribute
appreciably towards the creation of a presumption of concerted action, and that,
therefore, in cases where core underwriting arrangements are involved those concerned
should have particular regard to the possibility of their being held, in the light of all the
circumstances in a particular case, to be in concert. And they would further add that in
such circumstances where there is core underwriting involved, one of the circumstances
which would further intensify the degree of investigation which would be implied would
be the act of purchases above the bid price.

It is not of course to be seen as exclusively a feature that would necessarily be brought

into examination; but the existence of purchases above the bid price is naturally one
which would intensify the degree o examination which would be appropriate in such
cases. It will clearly, I think, be apt for the panel to issue a statement as soon as we can
do so giving the announcement that a hearing on this subject has been held, that a concert
party has not been found to exist and carrying also the rider points that I have
mentioned.”

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 On the morning of 25 November 1986 Datafin and Prudential- Bache sought
leave from Hodgson J. to apply for judicial review of the panel’s decision and for
consequential relief. The judge refused the application without giving reasons, whilst
indicating that in his view the court had no jurisdiction.

The application was renewed to this court that afternoon and we began the hearing at
once. In the course of the argument we decided to give leave and further determined to
hear the substantive application ourselves. We gave leave because the issue as to
jurisdiction seemed to us to be arguable and of some public importance and we retained
scission of the matter with a view to saving time in a situation of considerable urgency.

It will be seen that there are three principal issues, viz; (a) Are the decisions of the
panel susceptible to judicial review? “This is the jurisdiction” issue(b) If so how in
principle is that jurisdiction to be exercised given the nature of the panels activities and
the fact that it is an essential part of the machinery of a market in which time is money in
a very real sense:? This might be described as the practical” issue (c) If the jurisdictional
issue is answered favourably to the applicants is this a case in which relief should be
granted and if so in what form?

As the new Norton Opax ordinary shares have been admitted to the Official Stock
Exchange List and so can be traded subject to allotment any doubt as to the outcome of
the present proceedings could effect the price at which these shares are or could be traded
and thus the rights of those entitled to trade in them.

Accordingly we thought it right to announce at the end of the argument that the
application for judicial reaching this conclusion by considering the three issues in the
order in which I have set them out.

The jurisdictional issue

As I have said, the panel is a truly remarkable body, performing its function
without visible means of legal support. But the operative word is “visible” although
perhaps I should have used the word “direct.” Invisible or indirect support there is in
abundance. Not only is a breach of the code, so found by the panel, ipso facto an act of
misconduct by a member of the Stock Exchange, and the same may be true of other
bodies represented on the panel, but the admission of shares to the Official List may be
withheld in the event of such a breach.

This is interesting and significant for listing of securities is a statutory function performed
by the Stock Exchange in pursuance of the Stock Exchange (Listing) Regulations 1984
(S.L.1984 No 716), enacted in implementation of E.E.C. directive. And the matter does
not stop there, because in December 1983 the Department of Trade and Industry made a
statement explaining why the Licensed Dealers (Conduct of Business) Rules 1983 (S.I
1983 No.585) contained no detailed provisions about take-overs. It said;

“There are now no detailed provisions in these statutory rules about take-overs and the
following paragraphs set out the provisions as regards public companies and private

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companies respectively. 2. As regards public companies (as well as private companies
which have had some kind of public involvement in the ten years before the bid) the
department considers it better to rely on the effectiveness and flexibility of the City Code
on Take-overs and Mergers which covers bids made for public companies and certain
private companies which have has some past public involvement.

The City code has the support of and can be enforced against professional security
dealers and accordingly the department expect as a matter or course that those making
bids for public companies (and private companies covered by the code) to use the
services of a dealer in securities authorised under the Prevention of Fraud (Investments)
Act 1958 (such as a stockbroker, exempt dealer, licensed dealer or a member of a
recognised association) in which case the Secretary of State’s permission for the
distribution of take-over documents is not required.

This is seen as an important safeguard for the shareholders of the public company (of
which there may be several hundreds or thousands) and as a means of ensuring that such
take-overs are conducted properly and fully in accordance with the provisions of the City
code. It would only be in exceptional cases that the Secretary of Secretary of State would
consider removing this safeguard by granting permission under section 14(2) of the Act
for the distribution of take-over documents in these circumstances.”

The picture which emerges is clear. As an act of government it was decided that,
in relation to take-overs there should be a central self-regulatory body which would be
supported and sustained by a periphery of statutory powers and penalties wherever non-
statutory powers and penalties were insufficient or non-existest or where E.E.C
requirements called for statutory provisions.

No one could have been in the least surprised if the panel had been instituted and
operated under the direct authority of statute law, since it operates wholly in the public
domain. Its jurisdiction extends throughout the United Kingdom. Its code and rulings
apply equally to all who wish to make take-overs bids or promote mergers, whether or
not they are members of bodies represented on the panel. Its lack of a direct statutory
base is a complete anomaly, judged by the experience of other comparable markets world
wide.

The explanation is that it is an historical “happenstance,” to borrow a happy term from

across the Atlantic. Prior to the years leading up to the “Big Bang” the City of London
prided itself upon being a village community, albeit of an unique kind, which could
regulate itself by pressure of professional opinion. As government increasingly accepted
the necessity for intervention to prevent fraud, it built on City institutions and mores,
supplementing and reinforcing them as appeared necessary.

It is a process which is likely to continue , but the position has already been reached in
which central government has incorporated the panel into its own regulatory network
built up under the Prevention of Fraud (Investments) Act 1958 and allied statutes such as
the Banking Act 1979.

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 The issue is thus whether the historic supervisory jurisdiction of the Queen’s
courts extends to such a body discharging such functions including some which are
quasi-judicial in their nature as part of such a system. Mr. Alexander for the panel,
submits that it does not.

He says that this jurisdiction only extends to bodies whose id derived from legislation or
the exercise of the prerogative. Mr Level for the applicants, submits that this is too
narrow a view and that regard has to be had not only to the source of the body’s power
but also to whether it operates as an integral part of a system which has a public law
character is supported by public law in that public law sanctions are applied if its edicts
are ignored and performs what might be described as public law functions.
In Reg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2
Q.B.864.882. lord Parker C.J. who had unrivalled experience of the prerogative remedies
both on the Beach and at the Bar said that the exact limits of the ancient remedy of
certiorari had never been and ought not to be specifically defined. I respectfully agree and
will not attempt such an exercise. He continued at p. 882:

They have varied from time to time being extended to meet changing conditions.
At once time the write only went to an inferior court. Later its ambit was extended to
statutory tribunals determining a lis inter partes. Later again it extended to cases where
there was no lis in the strict sense of the word but where immediate or subsequent rights
of a citizen were affected. The only constant limits throughout were that it was
performing a public duty. Private or domestic tribunals have always been outside the
scope of certiorari since their authority is derived solely from contract, that is from the
agreement of the parties concerned …

We have as it seems to me reached the position when the ambit of certiorari can be said
to cover every case in which a body of persons of a public as opposed to a purely private
or domestic character has to determine matters affecting subjects provided always that it
has a duty to act judicially. Looked at in this way the board in my judgment comes fairly
and squarely within the jurisdiction of this court. It is as Mr Bridge said, a servant of the
Crown charged by the Crown, by executive instruction with the duty of distributing the
bounty of the Crown. It is clearly therefore performing public duties.

Diplock L.J who later was to make administrative law almost his own said, at pp 884-
885:
The jurisdiction of the High Court as successor of the Court of Queen’s Bench to
supervise the exercise of their jurisdiction by inferior tribunals has not in the past been
dependent upon the source of the tribunals authority to decide issues submitted to its
determination, except where such authority is derived solely from agreement of parties to
the determination. The latter case alls within the field of private contract and thus within
the ordinary civil jurisdiction of the High Court supplemented where appropriate by its
statutory jurisdiction under the arbitrations acts.

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The earlier history of the write of certiorari shows that it was issued to courts whose
authority was derived from the prerogative from Royal Charter, from franchise or custom
as well as from Act of Parliament. Its recent history shows that as new kinds of tribunals
have been created, orders of certiorari have been extended to them too and toe all persons
who under authority of the Government have exercised quasi-judicial functions. True
since the victory of Parliament in the constitutional struggles of the 17th century authority
has been generally if not invariably, conferred upon new kinds of tribunals by or under
Act of Parliament and there has been no recent occasions for the high court to exercise
supervisory jurisdiction over persons whose ultimate authority to decide matters is
derived from any other source. But I see no reason for holding that the ancient
jurisdiction of the Court of Queen’s Bench has been narrowed merely because there has
been no occasion to exercise it.

If new tribunals are established by acts of government the supervisory jurisdiction of the
High Court extends to them if they possess the essential characteristics upon which the
subjection of inferior tribunals to the supervisory control of the High Court is based.
What are these characteristics? It is plain on the authorities that the tribunal need not be
one whose determinations give rise directly to any legally enforceable right or liability.
Its determination may be subject to certiorari notwithstanding that it is merely one step in
a liabilities of a person to whom it relates. It is not even essential that the determination
must have that result, or there may be some subsequent condition to be satisfied before
the determination can have any effect upon such legal rights or liabilities.

That subsequent condition may be a later determination by another tribunal (see Rex v.
Postmaster-General, Ex parte Carmichael (1928) 1 K.B 291; Rex v. Boycott, Ex parte
Keasley (1939) 2 K.B 615). Is there any reason in principle why certiorari should not lie
in respect of a determination, where the subsequent condition which must satisfied before
it can affect any legal rights or liabilities of a person to whom it relates is the exercise in
favour of that person of an executive discretion as distinct from a discretion which is
required to be exercised judicially?”

Ashworth J., who like Lord Parker C.J had served as junior counsel to the Trearury and
as such has vast experience in this field, said, at pp.891-892:

“It is a truism to say that the law has to adjust itself to meet changing circumstances and
although a tribunal constituted as the board, has not been the subject of consideration or
decision by this court in relation to an order of certiorari, I do not think that this court
should shrink from entertaining this application merely because the board had no
statutory origin.

It cannot be suggested that the board had unlawfully usurped jurisdiction; it acts with
lawful authority, albeit such authority is derived from the executive and not from an Act
of Parliament. In the past this court has felt itself able to consider the conduct of a
minister when he is acting judicially or quasi-judicially and while the present case my
involve an extension of relief by way of certiorari I should not feel constrained to refuse
such relief if the facts warranted it,”

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 The Criminal Injuries Compensation Board, in the form which it then took, was
an administrative novelty. Accordingly it would have been impossible to find a precedent
for the exercise of the supervisory jurisdiction of the court which fitted the facts.
Nevertheless t e court not only asserted its jurisdiction but further asserted that it was a
jurisdiction which was adaptable thereafter.

This process has since been taken further in O’Reilly v. Mackman (1983) 2 A.C- 237,
237,279 (per Lord Diplock) by deleting any requirement that the body should have a duty
to act judicially in Council of Civil Service Unions v. Minister for the Civil Service
(1985) A.C 374 by extending it to a person exercising purely prerogative power: and in
Gillick v. West Norfolk and Wisbech Area Health Authority (1986) A.C 112. where Lord
Fraser of Tullybelton, at p. 163F and Lord Scarman at p. 178F – H expressed the view
obiter that judicial review would extend to guidance circulars issued by department of
state without any specific authority. In all the reports it is possible to find enumerations of
factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all
those factors as essential or as being exclusive of other factors. Possibly the only essential
elements are what can be described as a public element which can take many different
forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a
consensual submission to its jurisdiction.

In fact given its novelty the panel fits surprisingly well into the format which this
court had in mind in the Criminal Injuries Compensation Board case. It is without doubt
performing a public duty and an important one. This is without doubt performing a public
duty and an important one. This is clear from the expressed willingness of the Secretary
of State for Trade and Industry to limit legislation in the field of take-overs and mergers
and to use the panel as the centerpiece of his regulation of that market. The rights of
citizens are indirectly affected by its decisions, some, buy by no means all of whom, may
in a technical sense be said to have assented to this situation, e.g the members of the
Stock Exchange. At least in its determination of whether there has been a breach of the
code, it has a duty to act judicially and it asserts that its raisin d’etre is to do equity
between one shareholder and another. Its source of power is only partly based upon moral
persuasion and the assent of institutions and their members, the bottom line being the
statutory powers exercised by the Department of Trade and Industry and the Bank of
England. In this context I should be very disappointed if the courts could not recognise
the realities of executive power and allowed their vision to be clouded by the subtlety and
sometimes complexity of the way in which it can be exerted.

Given that it is really unthinkable that, in the absence of legislation such as acts
trade unions, the panel should go on its way cocooned from the attention of the courts in
defence of the citizenry, we sought to investigate whether it could conveniently be
controlled by established forms of private law, e.g torts such as actionable combinations
in restraint of trade, and to this end, pressed Mr. Lever to draft a writ Suffice it to say that
the result was wholly unconvincing and not surprisingly, Mr. Alexander did not admit
that it would be in the least effective.

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 In reaching my conclusion that the court has jurisdiction to entertain applications
for the judicial review of decisions of the panel, I have said nothing about the substantial
arguments of Mr. Alexander based upon the practical problems which are involved.
These in my judgment, go not to the existence of the jurisdiction, but to how it should be
exercised and to that I now turn.

The practical issue

Mr Alexander waxes eloguent upon the disastrous consequences of the court
having and exercising jurisdiction to review the decisions of the panel and his
submissions deserved and have received very serious consideration. In a skeleton he put
it this way;

Even if, which is not accepted there is an apparent anomaly for an inability to challenge a
patently wrong decision which may have important consequences countervailing
disadvantages would arise if make which were unmeritorious.

The fact that the court could dismiss such applications does not prevent their having a
substantial act in dislocating the operation of the market during the tendency of
proceeding in creating uncertainty in areas where it is vital that there should be finality.

That finality should more appropriately exist at the threshold stage, by denying the
possibility of action rather than at the subsequent stage when the court comes to exercise
its discretion since b that time there will already have been a lack of finality for a period.
The nature of the rulings of the take – over panel are particularly required to have speed
and certainty; they may be given in the middle of a bid, and they clearly may affect the
operation of the market, and even short-term dislocation could be very harmful. The
present case illustrates the uncertainty within the market which can be created by the
mere bringing of an application. The issue is important for self-regulation as a whole. It
would create uncertainty if it were to be said that each self-regulating body were to be
considered in the context of the entire factual background of its operation, and of the
peculiar features of the take-over panel which made it susceptible to judicial review. If
would obviously have wide ranging consequences if there were general statements that
self-regulating bodies carrying out important functions were susceptible to judicial
review.”

I think hat it is important that all who are concerned with take-over bids shold
have well in mind a very special feature of public law decisions, such as those of the
panel, namely that however wrong they may be however lacking in jurisdiction they may
be they subsist and remain fully effective unless and until they are set aside by a court of
competent jurisdiction.

Furthermore the court has an ultimate discretion whether to set them aside and may
refuse to do so in the public interest notwithstanding that it holds and declares the
decision to have been made ultra: see, for example. Reg v. Monopolies and Mergers
Commission, Ex parte Argyll Group Plc (1986) 1 W.L.R 763. That case also illustrates
the awareness of the court of the special needs of the financial market for speed on the

164
part of decision – makers and for being able to rely upon those decisions as a sure basis
for dealing in the market. It further illustrates an awareness that such decision affect a
very wide public which will not be parties to the dispute and that their interests have to be
taken into account as much as those of the immediate disputants.

In the context of judicial review it must also be remembered that it is not even
possible to apply for relief until leave has been obtained. The purpose of this provision
was explained by Lord Diplock in Reg. v. Inland Revenue Commissioners. Ex parte
National Federation of Self Employed and Small Businesses Ltd (1982) A.C 617,642 -
643:

“The need for leave to start proceedings for remedies in public law is not new. It applied
previously to applications for prerogative orders though not to civil actions for
injunctions or declarations. Its purpose is to prevent the time of the court being wasted by
busybodies with misguided or trivial complaints of administrative error, and to remove
the uncertainty in which public officers and authorities might be left as to whether they
could safely proceed with administrative action while proceedings for judicial review of
it were actually pending even though misconceived.”

In many cases of judicial review where the time scale is far more extended than in
the financial markets, the decision maker who learns that someone is seeking leave to
challenge his decision may well seek to preserve the status quo meanwhile and, in
particular, may not seek to enforce his decision pending a consideration of the matter by
the court. If leave is granted, the court has the necessary authority to make orders
designed to achieve this result, but usually the decision – maker will give undertakings in
lieu.

All this is but good administrative practice. However, against the background of the time
scales of the financial market, the courts would not expect the panel or those who should
comply with its decisions to act similarly. In that context the panel and those affected
should treat its decisions as valid and binding, unless and until they are set aside.

Above all they should ignore any application for leave to apply of which they become
aware, since to do otherwise would enable such applications to be used as a mere ploy in
take-over battles which would be a serious abuse of the process of the court and could not
be adequately penalised by awards of costs.

If this course is followed and the application for leave is refused, no harm will
have been done. If the application is granted, it will be for the court to decide whether to
make any and, if so, what orders to preserve the status quo. In doing so it will have regard
to the likely outcome of the proceedings which will depend partly upon the facts as they
appear from the information at that time available to the court, but also in part upon the
public administrative purpose which the panel is designed to serve. This is somewhat
special.

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 Consistently with its character as the controlling body for the self-regulation of
take-overs and mergers, the panel combines the functions of legislator, court interpreting
the panel’s legislation, consultant, and court investigating and imposing penalties in
respect of alleged breaches of the code. As a legislator it sets out to lay down general
principles, on the lines of E.E.C legislation rather than specific prohibitions which those
who are concerned in take-over bids and mergers can study with a view to detecting and
exploiting loopholes.

Against that background there is little scope for complaint that the panel has
promulgated rules which are ultra vires, provided only that they do not clearly violate the
principle proclaimed by the panel of being based upon the concept of doing equity
between one shareholder and another. This is a somewhat unlikely eventuality.

When it comes to interpreting its own rules it must clearly be given considerable
latitude both because as legislator it could properly alter them at any time and because of
the form which the rules take. i.e. laying down principles to be applied in spirit as much
as in letter in specific situations. Where there might be a legitimate cause for complaint
and for the intervention of the court would be if the interpretation were so far removed
from the natural and ordinary meaning of the words of the rules that an ordinary user of
the market could reasonably be misled. Even then it by no means follows that the court
would think it appropriate to quash an interpretative decision of the panel. It might well
take the view that a more appropriate course would be to declare the true meaning of the
rule leaving it to the panel to promulgate a new rule accurately expressing its intentions.

Again the panel has powers to grant dispensation from the operation of the rules;
see, for example, rule 9.1. of the code. This is a discretionary power only fettered by the
overriding obligation to seek, if not necessarily to achieve, equity between one
shakeholder and another. Again I should be surprised if the exercise of this power could
be attacked, save in wholly exceptional circumstances and, even then, the court might
well take the view that the proper form of relief was declaratory rather than substantive.

This leaves only the panel’s disciplinary function. If it finds a breach of the rules
proved, there is an internal right of appeal which, in accordance with established
principles, must be exercised before, in any ordinary circumstances, the court would
consider intervening. In a case, such as the present, where the complaint is that the panel
should have found a breach of the rules, but did not do so, I would expect the court to be
even more reluctant to move reluctant to move in the absence of any credible allegation
of lack of bona fides. It is not for a court exercising a judicial
Review jurisdiction to substitute itself for the fact- finding tribunal and error of law in the
form of finding of fact for which there was no evidence or in the form of a mis-
construction of the panel’s own rules would normally be a matter to be dealt with by a
declaratory judgement. The only circumstances in which I would anticipate the use of the
remedies of certiorari and mandamus would be in the event, which I hope is unthinkable,
of the panel acting in breach of the rules of natural justice – in other words, unfairly.

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Nothing that I have said can fetter of is intended to or should be construed as fettering the
discretion of any court to which application is made for leave to apply for judicial review
of a decision of the panel or which leave having been granted is charged with the duty of
considering such an application.

Nevertheless, I wish to make it clear beyond a peradventure that in the light of the special
nature of the panel, its functions the market in which it is operating the time scales which
are inherent in that market and the need to safeguard the position of third parties who
may be numbered in thousands all of whom are entitled to continue to trade upon an
assumption of the validity of the panel’s rules and decisions unless and until they are
quashed by the court. I should expect the relationship between the panel and the court to
be historic rather tan contemporary decisions to take their course considering the
complaint and intervening if at all later and in retrospect by declaratory orders which
would enable the panel not to repeat any error and would relieve individuals of the
disciplinary consequences of any erroneous finding of breach of the rules. This would
provide a workable and valuable partnership between the courts and the panel in the
public interest and would avoid all of the perils to which Mr. Alexander alluded.

The reasons for rejecting this application

There was some failure on the part of the applicants to appreciate or at least to act
in recognition of the fact that an application for judicial review is not an appeal. The
panel and not the court is the body charged with the duty of evaluating the evidence and
finding the facts.

The role of the court is wholly different. It is, in an appropriate case, to review the
decision of the panel and to consider whether there has been illegality,” i.e whether the
panel has misdirected itself in law; “irrationality”i.e whether the panel’s decision 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; or
“procedural impropriety,” i.e, a departure by the panel from any procedural rules
governing its conduct or a failure to observe the basic rules of natural justice, which is
probably better described as “fundamental unfairness,” since justice in nature is
conspicuous by its absence. If authority be required for proposition which are so well
established it is to be found in the speech of Lord Diplock in Council of Civil Service
Unions v. Minister of the Civil Service (1985) A.C. 374, 410 – 411.

In the course of the hearing before this court, the applicants sought and were
given leave to amend their grounds of application. As so amended, they made three
complaints of breaches of the code and of the panel’s failure so to find. (a) In breach of
the code, Norton Opax failed to increase its offer to McCorquodale shareholders, other
than core sub- underwriters and the parent company of the principal core sub-underwriter
for the McCorquodale shares acquired by it from them. (b) In breach of the code, K.I.O
acted in concert with Norton Opax in that, irrespective of the reasons for their conduct,
they had an agreement with Samuel Montagu & Co. Ltd. Norton Opax merchant banker
which gave them an incentive to procure that Norton Opax offer should become

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unconditional and they did so procure by purchasing shares at a price 12.2p in excess of
the cash price offered by Norton Opax and by assenting those shares to Norton Opax. (c)
Having regard to the timing and price paid by K.I.O for the Mc Corquodale shares, the
fact that they were purchased through one of the brokers to Norton Opax’s offer and the
assenting of those shares to that offer, the panel could not properly have failed to find that
K.I.O and Norton Opax were concert parties unless it misdirected itself in law in the
erroneous belie that a finding that there was communication between Norton Opax and
K.I.O with regard to those share purchases was necessary to support such a finding.

I can dispose of complaint (a) very quickly. Norton Opax never did pay an
increased consideration for Mc Corquodale shares to cove sub-underwriters or anyone
else. The success of the bid brought with is an entitlement on the part of the core sub-
underwriters to be paid an increased underwriting fee but this was not part of the
consideration for Mc Corquodale shares. It would have been payable to core sub-
underwriters if the same shares had been assented to Norton Opax by someone other than
a core sub-underwriter. Furthermore, this point is not open since it was not argued before
the panel.

Complaint (b) essentially amount to an allegation that an agreement which gives

underwriters an interest in the success of a bid makes the underwriter a concert party if he
purchases shares in the target company. The short answer to this is that “concert party”
could be so defined, but it is not and whether any alteration should be made is a matter
for the panel and not for the court.

Complaint (c ) is no doubt based upon the sentences in paragraph 6.3 of the

report of the panel’s executive, which I have already quoted reading; “Certain of ( the
core underwriters ) met the management for he standard presentation during the offer in
the normal way but in fact K.I.O never met the management at all. “ Two assumptions
are then made, namely that the executive regarded this as conclusive of the absence of a
concert party situation and that the panel did likewise.

We have in the event had the advantage of affidavit evidence from the chairman which
makes it clear that the panel made no such error. He has deposed that the panel
approached the matter on the basis of he definition of “concert party” which requires a
finding of an agreement or understanding.

It did not regard the fact that there was no contact between K.I.O and Norton Opax as an
absolute bar to a finding of concerted action but rightly appreciate that, in the absence of
such contact, sufficient evidence to support an agreement or understanding had to be
found elsewhere if such a finding were to be mad. There was no such evidence or none
sufficient to satisfy the panel and the evidence as a whole satisfied it that K.I.O’s
decisions to purchase the shares was made for genuine investment reasons which
explained both the purchase and when it was made.

Whilst this is more than sufficient to dispose of complaint (c) the chairman’s long
detailed and helpful affidavit well illustrates the need for the court to avoid

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underestimating the extent tot which expert knowledge can negative inferences which
might otherwise be drawn from a partial knowledge of the facts and the extent to which a
greater knowledge of the facts can make a decision which at first might seem faintly
surprising, not only explicable, but plainly right. Thus the panel from its expertise knew
that no significance should be attached to the bare fact that K.I.O used Greenwell
Montagu as their brokers since.

“It is common for an investor who wishes to buy shares for which an offer is currect to
use one of the brokers to the offer because that broker’s knowledge of the market during
such period is likely to be particularly good. Brokers to an offer are regarded as free to
continue their general broking business with other parties throughout the offer though
they must be careful about disclosure of information.”

Again the panel heard evidence from other institution purchasers of Mc Corquodale
shares who bought at the same time and at substantially the same price as K.I.O one of
whom was not a core sub-underwriter and could therefore only have been influenced by
reinvestment justifications of the purchases by both that institution and K.I.O.

In conclusion. I should like to make it clear that, but for the issue as to jurisdiction
this is not a case in which leave to apply should ever have been given. All that could be
said at that stage was that there was a case for considering whether the advent of core
underwriting might nor call for some reconsideration of the definition of “concert party”
Perhaps putting core underwriters in the category o persons in respect of whom there was
a reputable presumption of concerted action.

That was plainly a matter for the panel which was minded to add a rider to its decision
pointing to the fact that core underwriting arrangement might be subjected to close
scrutiny particularly where they were associated with market purchases above the level of
cash offer.

The fact that the panel’s conclusion might at first have appeared surprising to someone
who was not in day to day contact sith the financial markets and who had heard none of
the evidence would not have begun to justify the grant of leave to apply.

LLOYD L.J I agree that this appeal should be dismissed for the reasons given by Sir
John Donaldson M.R. I add only a few words on the important question whether the
Panel on Take-overs and Mergers is a body which is subject to judicial review. In my
judgment it is.

There have been a number of cases since the decision of the House of Lords In
O’Reilly v. Mackman (1983) 2 A.C 237 in which it has been necessary for the courts to
consider the new – found distinction between public and private law. In most of them,
objection has been taken by the defendant that the plaintiff has sought the wrong remedy.
By seeking a remedy in private law instead of public law, the plaintiff has so it has been
said, deprived the defendant of the special protection afforded by R.S.C Ord. 53.

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The formalism thus introduced into our procedure has been the subject of strong criticism
thus introduced into our procedure has been the subject of strong criticism by Sir Patrick
Neill in a Child & Co Oxford Lecture given in 1985, and by other academic writers.

The curiosity of the present case is that it is so to speak the other way round. The plaintiff
is seeking a remedy in public law. It is the defendant who asserts that the plaintiff remedy
in public law. It is the defendant who asserts that the plaintiff’s remedy, if any (and Mr.
Alexander for the panel concedes nothing) lies in private law Mr. Alexander has cast
away the protection afforded by R.S.C ., Ord. 53 in the hope perhaps that the panel may
in the words of Mr. Level be subject to no law at all.

On this part of the case Mr. Alexander has advanced arguments on two levels. On
the level of pure policy he submits that it is undesirable or decisions or rulings of the
panel to be reviewable. The intervention of the court would at best impede at worst
frustrate the purposes for which the panel exists. Secondly on a more technical level he
submits that to hold that the panel is subject to the supervisory jurisdiction o the High
Court would be to extend that jurisdiction further than it has ever been extended before.

On the policy level. I find myself unprersuaded. Mr. Alexander made much of the
word “self regulating” No doubt self –regulation has many advantages. But I was unable
to see why the mere fact that a body is self-regulating makes it less appropriate for
judicial review. Of course there will be many self regulating bodies which are wholly
inappropriate for judicial review.

The committee of an ordinary club affords an obvious example. But the reasons why a
club is not subject to judicial review is not just because it is self- regulating. The panel
wields ecormous power. It has a giant’s strength.

The fact that it is self- regulating, which means, presumably, that it is not subject to
regulation by other, and in particular the Department of Trade and Industry, makes it not
less but more appropriate that it should be subject to judicial review by the courts.

It has been said that “it is excellent to have a giant’s strength, but it is tyrannous to use it
like a giant. Nobody suggests that there is any present danger of the panel abusing its
power. But it is at least possible to imagine circumstances in which a ruling or decision of
the panel might give rise to legistimate complaint. An obvious example would be if it
reached a decision in flagrant breach of the rules of natural justice.

If is no answer to say that there would be a right of appeal in such a case. For a
complainant has no right to appeal where the decision is that there has been no breach of
the code. Yet a complaint is just as much entitled to natural justice as the company
against whom the complaint is made.

Nor is it any answer that a company coming to the market must take it as it finds
it. The City is not a club which one can join or not at will. In that sense, the word “self-

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regulation” may be misleading. The panel regulates not only itself, but all others who
have no to alternative but to come to the market in a case to which the code applies.

Mr. Alexander urged on us the importance of speed and finality in these matters I
accept that submission. I accept also the possibility the unmeritorious applications will be
made from time to time as a harassing or delaying tactic. It would be up to the court to
ensure that this does not happen. These considerations are all very relevant to the exercise
of the court’s discretion in particular cases. They mean that a successful application for
judicial review is likely to be very rare. But they do not mean that we should decline
jurisdiction altogether.

So long as there is a possibility, however remote, of the panel abusing its great
powers then it would be wrong for the courts to abdicate responsibility. The courts must
remain ready, willing and able to hear a legitimate complaint in this as in any other field
of our national life.

I am not persuaded that this particular field is one in which the courts do not belong or
from which they should retire, on grounds of policy. And if the courts are to remain in the
field, then it is clearly better, as a matter of policy, that legal proceedings should be in the
realm of public law rather than private law, not only because they are quicker,but also
because the requirement of leave under R.S.C..Ord 53 will exclude claims which are
clearly unmeritorious.

So I turn to Mr. Alexander’s more technical argument. He starts with the speech
of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service
(1985) A.C 374,409:

“For a decision to be susceptible to judicial review the decision maker must be

empowered by public law (and not merely, as in arbitration, by agreement between
private parties) to make decisions that, if validly made, will lead to administrative action
or abstention from action by an authority endowed by law with executive powers, which
have one or other of the consequences mentioned in the preceding paragraph.

The ultimate source of the decision – making power is nearly always, nowadays a statute
or subordinate legislation made under the statute; but in the absence of any statute
regulating the subject matter of the decision the source of the decision-making power
may still be the common law itself, i.e, that part of the common law that is given by
lawyers the label of the prerogative.

Where this is the source of decision-making power, the power is confined to executive
officers of central as distinct from local government and in constitutional practice is
generally exercised by those holding ministerial rank.

On the basis of that speech, and other cases to which Mr. Alexander referred us,
he argues (i) that the sole test whether the body of persons is subject to judicial review is

171
the source of its power, and (ii) that there has been no case where that source has been
other than legislation including subordinate legislation, or the prerogative.

I do not agree that the source of the power is the sole test whether a body is subject to
judicial review, nor do I so read Loserd Diplock’s speech. Of course the source of the
power will often, perhaps usually be decisive. If the source of power is a stature or
subordinate legislation under a statute then clearly the body in question will be subject to
judicial review. If at the other end of the scale, the source of power is contractual, as in
the case of private arbitration, then clearly the arbitrator is not subject to judicial review;
see Reg.v. National Joint Council for the Craft of Dental Technicians (Disputes
Committee). Ex parte Neate (1953) 1Q.B 704.

But in between these extremes there is an area in which it is helpful to look not
just at the source of the power but at the nature of the power. If the body in question is
exercising public law functions or if the exercise of its functions have public law
consequences then that may as Mr.Lever submitted, be sufficient to bring the body within
the reach of judicial review. It may be said that to refer to “public law” in this context is
to beg the question.

But I do not think it does. The essential distinction which runs through all the cases to
which we referred is between a domentic or private tribunal on the one hand and a body
of persons who are under some public duty on the other. Thus in Reg. v. Criminal
Injuries Compensation Board. Ex parte Lain (1967) 2 Q.B 864 Lord Parker C.J., after
tracing the development of certiorari from its earliest days, said, at p. 882:

“The only constant limits throughout were that (the tribunal) was performing a
public duty. Private or domestic tribunals have always been outside the scope of
certiorari since their authority is derived solely from contract that is, from the
agreement of the parties concerned.”
To the same effect is a passage from a speech of Lord Parker C.J in an earlier case, to
which we were not, I think, referred, Reg. v. Industrial Court, Ex parne A.S.S.E.T (1965)
1 Q.B. 377, 389:

It has been urged on us that really this arbitral tribunal is not a private arbitral
tribunal but that in effect it is undertaking a public duty or a quasi-public duty and as
such is amenable to an order of mandamus. I am quite unable to come to that conclusion.
It is abundantly clear that they had no duty to undertake the reference.

If they refused to undertake the reference they could not be compelled to do so, I do not
think that the position is in any way different once they have undertaken the reference.
They are clearly doing something which they are not under any public duty to do and, in
those circumstances, I see no jurisdiction in this court to issue an order of mandamus to
the industrial court.”

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 More recently, in Reg. v. British Broadcasting Corporation, Ex parte Lavelle
(1983) 1 W.L.R 23, Woolf J. had to consider an application for judicial review where the
relief sought was an injunction under R.S.C, Ord. 53, r. 1(2). The case was brought by an
employee of the B.B.C. In refusing relief, Woolf J. said, at p. 31:
Ord. 53, r. 1(2) does not strictly confine applications for judicial review to cases where an
order for mandamus, prohibition or certiorari could be granted. It merely requires that the
court should have regard to the nature of the matter in respect of which such relief may
be granted.

However although applications for judicial review are not confined to those cases where
relief could be granted by way of prerogative order, I regard the wording of Ord. 53 r.
1(2) and section 31(2) of the Act of 1981 as making it clear that the application for
judicial review is confimed to reviewing activities of a public nature as opposed to those
of a purely private or domestic character. The disciplinary appeal procedure set up by the
the applicant and the B.B.C. and therefore it is a procedure of a purely private or
domestic character.”

So I would reject Mr. Alexander’s argument that the sole test whether a body is
subject to judicial review is the source of its power. So to hold would in my judgment
impose an artificial limit on the developing law of judicial review. That artificiality is
well illustrated in the present case by reference to the listing regulations issued by the
Council of the Stock Exchange.

As the foreword to the current edition makes clear, a new edition of the regulations
became necessary as the result of the Stock Exchange (Listing) Regulations were made as
the result of a requirement of an E.E.C Council directive. Mr. Alexander conceded that
the listing regulations are now the subject of public law remedies. By contrast (if his
submission is correct) the code, which is the subject not of a Council directive, but of a
Commission recommendation is not.

I now turn to the second of Mr. Alexander’s two arguments under this head. He
submits that there has never been a case when the source of the power has been other
than statutory or under the “prerogative” this connection, as Professor Sir William Wade
makes clear in another Child & Co. Oxford Lecture, “Procedure and Prerogative in
Public Law” (1985) 101 L.Q.R 180. Strictly the term “prerogative” should be confined to
those powers which are unique to the Crown. As Professor Wade points out, there was
nothing unique in the creation by the government, out of funds voted by Parliament, of a
scheme for the compensation of victims of violent crime. Any foundation or trust, given
sufficient money, could have done the same thing.

Nor do I think that the distinction between the Criminal Injuries Compensation Board and
a private foundation or trust for the same purpose lies in the source of the funds. The
distinction must lie in the nature of the duty imposed whether expressly or by
implication. If the duty is a public duty, then the body in question is subject to public law.

173
 So once again one comes back to what I regard as the true view, that it is not just
the source of the power that matters, but also the nature of the duty. I can see nothing in
Reg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 Q.B 864 which
contradicts that view, or compels us to decide that, in non-statutory cases, judicial review
is confined to bodies created under the prerogative, whether in the strict sense, or in the
wider sense in which that word has now come to be used. Indeed, the passage from
Diplock L,J.’s judgment, at p. 884 which Sir John Donaldson M.R has already read,
points in the opposite direction.

But suppose I am wrong; suppose that the courts are indeed confined tot looking
at the source of the power as Mr. Alexander submits. Then I would accept Mr. Lever’s
submission that the source of the power in the present case is indeed governmental at
least in part. Mr. Alexander argued that so far from the source of the power being
governmental this is a case where the government has deliberately abstained from
exercising power. Is do not take that view. I agree with Mr. Level when he says that there
has been an implied devolution of power. Power exercised behind the scenes is power
nonetheless.

The express powers conferred on inferior tribunals were of critical importance in the
early days when the sole or main ground for intervention by the courts was that the
inferior tribunal has exceeded its powers. But those days are long since past. Having
regard to the way in which the panel came to be established the fact that the Governor of
the Bank of England appoints both the chairman and the deputy chairman and the other
matters to which Sir John Donaldson M.R has referred. I am persuaded that the panel was
established “under authority of the Government,” to use the language of Diplock L.J in
Lain’s case. If in addition to looking at the source of the power we are entitled to look at
the nature of the power, as I believe we are, then the case is all the stronger.

Before leaving Mr. Alexander’s second argument, I should mention one last point.
The jurisdiction of the court to grant relief by way of judicial review is now, of course
recognized by section 31 of the Supreme Court Act 1981. section 31(1)(a) refers
specifically to the old prerogative writs, namely mandamus, prohibition and certiorari.
Section 31(1)(b) and (2) provide that in an application for judicial review, the court may
grant a declaration or injunction if it is just or convenient to do so, having regard to
various matters.

I have already referred to the passage in Woolf J.s’ judgment in Reg. v. British
Broadcasting Corporation, Expatre Lavelle (1983)1 W.L.R.23,31, in which he says that
applications for judicial review under R.S.C., Ord. 53, r. 1(2) are not confined those cases
where relief could be granted by way of prerogative order. As at present advised, I would
agree with that observation. I would only add as a rider that section 31(1) of the Supreme
Court Act 1981 should not be treated as having put a stop to all further development of
the law relating to the prerogative remedies, I do not accept Mr. Alexander’s submission
that we are here extending the law. But if we were, I would not regard that as an
insuperable objection. The prerogative writs have always been a flexible instrument for
doing justice. In my judgment they should remain so.

174
 NICHOLLS L.J. I entirely agree with the judgments of Sir John Donaldson M.R.
and Lloyd L.J. which I have had the advantage of reading in draft. I add only a few
supplementary observations of my own.

I take as may starting point Reg. v. Criminal Injuries Companies Board, Ex parte
Lain (1967) 2. Q.B 864,882,where Lord Parker C.J noted that the only constant limits of
the ancient remedy of certiorari were that the tribunal in question was performing a
public duty. He contrasted private or domestic tribunals whose authority is derived solely
from the agreement of the parties concerned.

With that in mind one looks at the Panel on Take-overs and Mergers (“the
panel”). The panel promulgates the City Code on Take-overs and Merges. As its name
implies the code is concerned with take-over and merger transactions. Its ambit is very
wide indeed. Among the companies to which it applies are all listed public companies
considered by the panel to the resident in the United Kingdom.

Despite the wider range of the companies and persons it directly affects the panel
submitted that it is not performing a public duty and that none of its activities is
susceptible to judicial review. The only jurisdiction which the panel has is derived from
the consent of its members. It is in the terms of Lord Perker’s dichotomy a private or
domestic tribunal whose authority is derived solely from the agreement of the bodies
concerned. It was submitted that the activities of the panel constitute self-regulation and
self-regulation involves a voluntary submission of those who deal in the market to the
rules laid down by the panel and a commitment to accept the decisions of the pane.

I am unable to accept this as an accurate analysis of the panel’s authority and functions.
The panel is an unincorporated association. Its members comprise a chairman and a
deputy chairman appointed by the Governor of the Bank of England and representatives
of the 11 bodies mentioned by Sir John Donaldson M.R at the beginning of his judgment.
On a day-to-day basis the panel works through its executive headed by the director
general. He also is appointed by the governor of Bank of England and so is the chairman
of an appeal committee, which hears appeals against rulings given by the executive.

Beyond this the panel seems to have no formal constitution. Whether there is a
contract between its members or between the Bank of England at the bodies which
appoint representatives and if so, what are its terms, were not matters in evidence or
explored before us. Presumably, therefore, the code and amendments to it require the
approval of all the members of the panel.

175
 However, it seems clear that, whether or not there is a legally binding contract, there is
an understanding between the bodies whose representatives are members of the panel that
they will take all such steps, by way of disciplinary proceeding against their members or
otherwise, as are reasonably and properly open to them to ensure that the code and the
rulings of the panel are observed. Similarly with the Bank of England; its weighty
influence in the City of London is directed to the same end. Indeed, the leading part
played by the Bank of England in setting up and running the panel is one of the matters,
which must be kept in mind if the true role of the panel is to be evaluated.
Another matter which must be noted is the involvement of t he Stork Exchange,
one of the bodies appointing a representative on the panel.

Since the code is concerned with take-overs and many, if not most, of the
important take-overs will be of companies whose shares are listened on the Stock
Exchange by companies whose shares are similarly listed, the Stock Exchange is much
concerned with the matters which the code seeks to regulate. In turn a major element in
the enforcement of these regulations is the sanctions, which the Stock Exchange
possesses over listed companies.

In this regard it is important also to note that, whatever may have been the
position in the past, it is clear that today the Council of the Stock Exchange is performing
a public duty when deciding whether or not to admit a security to official listing and
whether or not to discontinue such a listing.

There is no longer a formal listing agreement entered into by companies seeking a listing
of their securities. The council now has all the power required or permitted to be
conferred on the competent authorities” by, inter alia, the admission directive of the
Council of the European Communities of 5 March 1979 (79/279/E.E.C.): see the Stock
Exchange (Listing) Regulations 1984. Articles 15 of that directive expressly provides that
member states shall ensure that decisions of the competent authorities refusing the
admission of a security to official listing or discontinuing such a listing shall be subject to
the right to apply to the courts. Such an application in this country would take the form of
an application for judicial review.
From this it is evident that the activities of the council of the Stock Exchange in
laying down requirements which a company must observe if it is to obtain and retain an
official listing, and in interpreting those requirements and adjudicating upon alleged
breaches of those requirements, are activities which are subject to judicial review.
Today those requirement include observing the code. In paragraph 6.15 of its
official publication “Admission of Securities to Listing,” the council states that it attaches
“great importance” to observance of the code.

The code contains a statement of general principles. For example that all
shareholders of the same class of an offeree company must be treated similarly by an
offeror, and that during the course of a take-over or when one is in contemplation neither
the offeror nor the offeree nor their advisers may furnish information to some
shareholders which is not made available to all.

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The code also contains some detailed rules. Some of these are far reaching. Thus a
company can be compelled, in certain circumstances, to make an offer, or to increase the
amount of an offer it has made. Under rule 9 a person who acquires shares carrying 30
percent or more of the voting rights of a company is required to make an offer to
purchase all the equity capital of the company. Rule 6(2) provides that if while an offer is
open the offeror or any person acting in concert with it purchases shares at above the
offer price the offeror shall increase its offer to not less than the highest price paid for the
shares so acquired.

I do not suggest for one moment that these obligations are other than fair and reasonable
and necessary. But, nonetheless, they are far reaching, and the sanctions for their
enforcement are also formidable; they include suspension of a listing by the Council of
the Stock Exchange, in performance of its public duty in that regard.

Thus the system which has evolved on the point am now considering is
indistinguishable in its effect from a delegation by the Council of the Stock Exchange to
the panel, a group of people which includes its representative of its public law task of
spelling out standard and practices in the field of take-overs which listed companies must
observe if they are to enjoy the advantages of a Stock Exchange listing and of
determining whether there have been breaches of those standards and practices. As is
stated in the in the code those who do not conduct themselves in matters relating to take-
overs according to the code cannot expect to enjoy the facilities of the securities market
in the United Kingdom.

In my view and quite apart from any other factors which point in the same
direction, given the leading and continuing role played by the Bank of England in the
affairs of the pane, the statutory source of the powers and duties of the Council of the
Stock Exchange the wide ranging nature and importance of the matters covered by the
code and the public law consequences of non-compliance, the panel is performing a
public duty in prescribing and operating the code (including ruling on complaints).

The particular facts

I am not without sympathy for the applicants. The Kuwait Investment Office
stood to receive about £300.000 in additional underwriting fees from Norton Opax Pls if
the Norton Opax bid for McCorquodale Plc was successful and thus, depending upon
one’s view of the likely trend in the price of Norton Opax shares that might have given
K.I.O a significant financial interest in the success of the Norton Opax bid. Then at a
critical time in the course of the contest between the rival bids.

When Datafin Plc was precluded from buying McCorquodale shares at above 315p per
share and Norton Opax was precluded from buying McCorquodale shares at over and
Norton Opax was precluded from buying McCorquodale shares at over 303.3p per share,
K.I.O bought, through the brokers who were joint brokers to the Norton Opax offer, a
substantial number of McCorquodale shares at 315.5p. I can well understand why the
applicants felt aggrieved.

177
 But the difficulties confronting the applicants on this judicial review application
are manifestly insuperable. The panel correctly, approached the matter on the basis of the
basis of the code’s definition of “acting in concert”.
The panel heard evidence from a K.I.O representative, and accepted that K.I.O treated
investment and underwriting as separate business and that genuine investment reasons
explained why K.I.O had not bought earlier and why it bought when it did. These, par
excellence were matters for the panel.

Any lingering concern about the scope for abuse of core underwriting agreements,
and whether any steps should be taken to prevent a recurrence of this type of situation
where suspicion where suspicion and distrust are bound to breed, are matters for the
panel. The evidence of the chairman shows that the panels have these considerations well
in mind.

Leave to apply for judicial review

Granted
Declaration that court had jurisdiction
To hear application
Substantive application dismissed
No order for costs of panel
Applicants to pay costs of interveners

Solicitors: S.J Berwin & Co. Freshfields; Hepworth &

Chadwick, Leeds; Ashurst Morris Crips & Co.
P.M
(COURT OF APPEAL)

REGINA v. SHARP
Lord Lane C.J Farquharson
and Gatehouse JJ.

Crime-Duress-Homicide- Person voluntarily joining gang of armed robbers- Reluctant

participation in robbery when victim shot and killed – Conviction for manslaughter-
Whether defense of duress available.

The appellant, who joined a gang of robbers, knew that they used firearms and he
participated in a robbery during which the gang leader shot and killed the victim. The

178
appellant was tried on a count charging murder. He submitted that the defence of duress
was available to him since he had wished to pull out of dures was available to him since
he had wished to pull out of the robbery but had participated in fear because a gun had
been pointed at his head by the gang leader with a threat to blow it off if the appellant did
not participate. The submission was rejected by the trial judge and the appellant was
convicted of manslaughter.
On appeal against conviction: -
Held, dismissing the appeal, that the defence of duress was not available to a person
who voluntarily and with knowledge of its nature joined a criminal arganisation or gang,
which he knew might pressure on him to commit an offence, and was an active member
when he was put under such pressure; and that, accordingly, the trial judge was correct in
his decision to reject Dicta in Director of Public Prosecutions for northern Ireland v.
Lynch (1975) A.C. 653,670,679,687, H.L (N.I.) applied.
Reg. v. Hurley and Murray (1967) V.R. 526 and Reg. v. Fitzpatrick (1977) N.I. 20
considered.

3. LOCUS STANDI

1. Lujuna Shubi Ballonzi v The registered trustee of CC, Civil Case No. 214 of
1994.
2. Mtikila v Attorney general, Misc. Civil Case No. 5 of 1993, HC at Dodoma.

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

CIVIL CASE NO 214 OF 1992

LUJUNA SHUBI BALLONZI, SENIOR……………………… PLAINTIFF

VERSUS

179
 THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI…DEFENDANTS

………………………………………………………………

RULING
SAMATTA, J.K:

One of the principal question I have to decide in this matter is whether the
Plaintiff (now the respondent) Mr. Lujuna Shubi Ballonzi, Senior, has locus standi or
standing to bring the action, which is now before this court. In his plaint the respondent
has sued the Registered Trustees of Chama Cha Mapinduzi (hereinafter referred to by its
acronym, CCM) praying for the following relief, among others;
(1) a declaration that CCM is not a political party;

(2) an order that the defendants be dissolved and liquidated;

(3) a declaration that the defendants have no rights to movable and immovable
properties which they have “purported” to acquire by using subventions from the
consolidated Fund;

(4) an order that the defendants pa all external debts amounting to not less than seven
billion dollars “incurred on behalf of Tanzanian’s and
(5) a permanent injunction restraining the defendants from using and /or alienating
prosperities in their possession.

In the plaint the respondent avers, inter alia:

3. That the Defendants on or about the 5th day of February, 1977, took all assets of
the Tanganyika National African Union of Tanganyika and the Afro Shiraz Party
of Zanzibar (“The Founder Parties”)
4. that the Founder Parties were, without authority and mandate of the people,
receiving subvention from the consolidate Fund of Tanzania and compulsory
contributions from people residing in Tanzania and others doing business with
Tanzania and used those moneys to acquire movable and immovable properties
which were then registered in their respective names. ALTERNATIVELY the

180
 founder parties should have used those funds prudently for the benefit of all of all
Tanzania.
5. The Defendants without the authority and mandate of the people of Tanzania
constituted themselves a state party on or about the 5th day of February, 1977 and
continues to receive and use funds from the consolidated Fund and compulsory
contributions aforesaid in the same manner as the founder Parties until the 30th
day of June, 1922.
6. that the Defendats are continuing to coerce the business community to contribute
to them funds by using their position as a de facto Government. These funds can
only be received for and on behalf of all Tanzanians.
7. That the Defendants, without the authority and mandate of Tanzania, transferred
to themselves assets that they had acquired from the Founder Parties and
registered them in their names and further acquired other properties from the
subventions referred to in paragraph 5 herein and registered them in their names.
8. That the Defendants have no right to the properties referred to in para 7 herein
because these properties were purchased, acquired and/or constructed from funds
which belonged to the peoples of Tanzania the overwhelming majority of whom
are not members of the Defendants and therefore can hold such properties as
trustees of the people of Tanzania and not as Trustees of CCM.
9. The Plaintiff has never been a member of the Founder Parties and CCM but has
contributed to the funding of the Consolidated Fund through payment of taxes and
has been forced on several occasions to contribute towards CCM, which moneys
have found their way in the coffers of the Defendants.
10. It is estimated that the Defendants have accumulated properties worth shillings
seven hundred and eighty billion. (T.shs 780,000,000,000/=) from state funds and
have used on trillion shillings (1,000,000,000,000/=) to activities unrelated to
welfare of Tanzanians and have through mismanagements, outright theft and
autocracy incurred an external debt of dollars seven billion (7,000,000,000/=)
ostensibly on behalf of Tanzania but without the authority and mandate of the
people.

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 11. That on the 1st day of July, 1992, the Defendants have in an autocratic manner
constituted themselves as a political party and continue to cling on properties
referred to in para 7 herein as theirs and have shown no intention to return them to
the Government of the United Republic of Tanzania despite demand.
12. …
13. ….
14. For decided to quote the averments in the plaint in extensor because of the
unusual character of the case. The Defendants (now the applicants) have filed,
under Order VI, rule 16 and S.95 of the Civil Procedure Code (the Code) and s.2
(2) of the Judicature and Application of Laws Ordinance, Cap. 453, an application
in which they pray that the plaint be struck out on one or more of the following
grounds:

(1) it discloses no reasonable cause of action;

(2) it is scandalous, frivolous and vexatious; and
(3) it is an abuse of the process of the Court.

The application was heard ex parte because, although he was duly served with notice of
hearing, the respondent, who was not legally represented, did not appear at the hearing.
Mr Uzanda (who was assisted by Ambassador Rutakyamirwa and Miss Mujasiri)
strenuously attacked, from several fronts, the applicants. The learned advocate contended
that the suit is incompetent for not disclosing a cause of action and for being scandalous,
frivolous and vexatious and an abuse of the process of this Court. He advanced four
grounds in support of that contention. Those grounds may, without doing any injustice to
the very skilful manner in which the learned advocate put forward his arguments, be
summarized as follows: -

(1) The purported representative suit is incompetent because the mandatory

provisions of Order 1, rule 8 of the Code have not been complied with.
(2) The suit is incompetent in law because no cause of action on trust has been
disclosed by the plaint.
(3) Assuming that the respondent has (properly) pleaded a trust, the non-compliance
with the provisions of s.67 of the Code is fatal to the suit.

182
(4) Since the case is based on averments that the applicants were receiving
subventions from the Consolidated Fund, the suit should been instituted against
the Government and not against the applicants. In any case, the payment of those
funds is not a justifiable issue or one, which subject to review by the courts.

In this Country, locus stand is governed by the common law, According to

that law, in order to Maintain proceedings successfully, a plaintiff or an
applicant must show not only that the court has power to determine the
issue but also that he is entitled to bring the matter before the court; see
Halsbury’s Laws of England, 4th ed, para 49 at p. 52. Courts do not have
power to determine issues of general interest; see Re I.G.Farben Industries
A.G Agreement (1943) 2 All E.R 525. They can only accord protection to
interests, which are regarded as being entitled to legal recognition. They
will thus not make any determination of any issue that is academic,
hypothetical, premature or dead.

Because a court of law is a court of justice and not an academy of law, to

maintain an action before it a litigant must assert interference with or
deprivation of, or threat of interference with or deprivation of, a right or
interest which the law takes cognizance of. Since courts will protecAt only
enforceable interests, nebulous or shadow interests do not suffice for the
purpose of suing or making an application of course, provided the interest
is recognized by law, the smallness of it is immaterial.

It must also be distinctly understood, I think, that not every damage or

loss can be the subject matter of court proceedings. The maxam damnum
sine injuria osse protest (there may be damage or loss inflicted without any
act being done which the law deems is injury is, without any shadow of
doubt, part of the law of this country. An example of damnum absque
injuria (loss without a wrongful act;) is where a man sets up a shop in
order to attract the customers of another shop. In Gregory and An. V
London Borough of Camden (1967) 2 All E.R. 196, at p.203 G-H, PAUL
J. Describes the common law principles in these terms,
“There are many acts which cause lost which give the legal
rights. Before one can come to a court of law, one mist suffer an
injury as well as damnum; one must have suffered a legal wrong as
well as an actual less of money or amenity or something else”

Under s.2 (2) of the judicature and Application of Laws ordinance Cap. 453, this
Court has, of course, power to modify the common law so as to make it suit local
conditions. Commenting on identical power conferred on the High Court of East

183
Africa by the proviso to Article 15 of the East Africa Order in Council (C.R &
O.1902 No 661) as amended by the East Africa order in Council of 1911, in Nyali
ltd. V Attorney-General (1955) 1 All E.R 646 DENNING L.J said, at o. 653:

“The…. proviso says, however, that the common law is to apply “subject to such
qualifications as local circumstances render necessary” This wise provision
should, I think be liberally contracted. It is recognition that the common law
cannot be applied in a foreign land without considerable qualification. Just as with
an English oak, so with the English common law.

You cannot transplant it to the African continent and expect it to retain the tough
character, which it has in England. It will flourish indeed but it needs careful
tending. So with the common law. It has many principles of manifect justice and
good sense which can be applied with advantage to people of every race and
colour all the world over; but it has also many refinements, subtleties and
technicalities which are not suited to other folk.

These off-shoots must be cut away. In these far off lands the people must have a
law which they understand and which they will respect. The common law cannot
fulfill this role except with considerable qualifications. The task of making these
qualifications is entrusted to the judges of these lands. It is a great task. I trust that
they will not fall therein”.

In this country, is there any logical basis for modifying the common law rule of
locus standi? In India the Supreme Court has widened that rule. The new
approach there is described by Mr Justice P.N Baghwati, a former Chief Justice of
that country in his article Fundamental Rights in their Economic, Social and
Cultural Context, published in DEVELOPING HUMAN RIGHTS
JURISPRUDENCE, Vol. 2 at p.83, in the following terms:
“…There was difficulty in enforcing the human rights of the poor and the
disadvantaged, because they are not aware of their rights and they do not have the
material resources to approach the courts in cases other than criminal. As a result
of a large range of human rights remain unenforced. We therefore developed the
strategy of public interest litigation.

We held in a seminal decision that the ordinary rule of Anglo-Saxon

jurisprudence is that an action can be brought only by a person to whom legal
injury is caused. However, this rule must be departed from in the cases of poor
and disadvantaged classes of people where legal injury is caused to a person or
class of persons who, by reason of poverty or disability or socially or
economically disadvantaged position, cannot approach the courts for judicial
redress.

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Thus we held that any member of the public or social action groups acting bona
fide, can approach the court seeking judicial redress for the legal injury caused to
such person or class of persons, and that in such a case the court will not insist on
a regular petition being filed by the public spirited individual or social action
group espousing their cause and will readily respond –even if its jurisdiction is
invoked merely by means of a letter addressed to it, as can happen in the case of
habeas corpus actions.

This widening of the rule of locus standi introduced a new dimension in the
judicial process and opened a new vista of a totally different kind of litigation for
enforcing the basic human rights of poor and underprivileged sections of the
community, and ensuring basic human rights dignity. Much of the human rights
jurisprudence in India has been built up by the courts as a result of public interest
litigation.

The courts have been enforcing basic human rights of the deprived and vulnerable
sections of the society in cases under trial as well as convicted prisoners, women
in distress, children in jails and juvenile institutions, bonded and migrant
workmen, unroganised labour “untouchables” and “scheduled tubes”, landless
agricultural labourers who are denied minimum wages or who are victims of
faulty mechanization, slum and pavement dwellers and victims or extra – judicial
executions and many more”

If I may respectfully say so, there is, I think, some justification for extending the
rule of locus standi in the direction taken by the Supreme Court of India. The
provisions of s.26 (2) of the Constitution of the United Republic of Tanzania (the
Constitution) do not seem to extend the rule to the degree done by the Supreme
Court (of India).

Bearing in mind the realities of our society, including the comparable educational
backwardness and poverty of the majority of the people, I would respectfully
agree with the following observations by Mr. Justice Kayode, a former Justice of
the Supreme Court of Nigeria, made in his article The Role of The Judge in
Advancing Human Rights in DEVELOPING HUMAN RIGHT
JURISPRUDENCE, Vol.3, at p. 100:

“ It is submitted that the greatest excuse of the advocate of restraint

in locus standi is that there would be follodgate if everyone is
given hearing in (Human Right cases). No one would advocate
floodgate in ordinary cases, but as has been submitted earlier,
human rights are special rights and special rights deserve special

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 treatment. If floodgate it entails, let there be on, once it is a matter
of human rights”

An ordinary person is likely to be more conversant with his private law right than
with his public law rights. By necessity the rule of locus standi, in so far as tit
relates to human rights litigation, must be wide.

I can see no warrant for making similar extension to the rule as far as private
interest litigation is concerned. Since I do not think it would be right to consider
the respondent’s suit as falling under the purview of human rights litigation, I
proceed, being guider by among others, the cases I have cited supra, to consider
the merits or otherwise of Mr. Uzanda’s submissions.

Although in the plaint he does not expressly say so, it is as plain as a

pikestaff that the respondent has purported to file the suit not only on his own
behalf but also on behalf of all Tanzanians who are not members of CCM. As
already indicated, Mr. Uzanda contends that the suit is incompetent in law on the
ground that the provisions of Order 1, rule 8 of the Code have not been complied
with. I have no doubt that this contentions unanswerable. Rule 8 of Order I reads;

“8 – (1) Where there are numerous persons having the same

interest in one suit, one or more of such persons may, with the
permission of the court, sue or be sued, or may defend, in such
suit, on behalf of or for the benefit of all persons so interested. But
the court shall in such case give, at the plaintiff’s expense, notice
of the institution of the suit to all such persons either by personal
service or, where from the number of persons or any other cause
such service is not reasonably practicable, by public advertisement,
as the court in each case may direct.
(2) Any person on whose behalf or for whose benefit a suit is
instituted or defended under sub-rule (1) may apply to the court to
be made a party to such suit”
This rule is almost in pari material with Order 1, rule 8(1), (2) and (3) of the Civil
Procedure Code of India. Commenting of the latter rule, the learned authors of Sir
John Woodroffe and Ameer Ali’s CODE OF CIVIL PROCEDURE, 3rd ed, Vol II,
state as follows, at p. 1403:

“ The foundation of Order 1, rule 8 C.P.C. is to be found in a principle which

transcends the personal or parochial nature of the combatants who are arrayed as
parties to the suit. It affects the rights of other persons not present before the
Court. Hence a duty is cast on the Court itself to follow meticulously the

186
 procedure prescribed by Order 1, rule 8. In view of the far reaching consequences
of a decree passed in what is described in law as a representative suit, it is
necessary that the relevant provisions must be treated as peremptory and
mandatory”.

And at p.1405, the learned authors state as follows;

“A representative suit cannot be said to have been validly
instituted unless and until the mandatory provisions of Order 1 rule
of the Civil Procedure Code are complied with. The provision
contained in Order 1, rule 8, C.P.C. Is mandatory and not merely
directory and is an essential pre- condition for the trial of the case
as a representative suit. It is imperative that the two conditions
provided in rule 8 of Order I, should be complied with, namely, (1)
the permission of the Court should be obtained and (2) the Court
should, at the expense of the plaintiffs, issue notice of the
institution of the suit to all such persons either by personal service
or where from the number of persons, or any other cause such
service is not reasonably practicable, by public advertisement as
the Court may direct”.
In my view, these two passages also accurately state our law. A person cannot seek to
advance the claims of a group of persons without adopting the procedure laid down in
rule 8 of Order 1 of the Code. He cannot, as the respondent in the case now before me has
purported to do, institute a representative suit without first obtaining leave of the court to
bring such suit when such suit is instituted without that leave, it must struck out for being
incompetent in law.

Common interest litigation can be conducted only in accordance with the provisions of
Order 1, rule 8 of the Code. As already remarked, failure to comply with those mandatory
provisions is fatal to any such suit or application. This is, in law, a sufficient ground for
striking out the respondent’s purported representative suit.

As was very rightly pointed out by Mr. Uzandu in his submission,

nowhere in his plaint has the respondent asserted that, as a result of the applicants alleged
misconduct, he has suffered special damage over and above other Tanzanians or millions
of Tanzanians who are not members of CCM.

It is a principle of the law of this country that public rights can only be asserted in a civil
action by the Attorney General as the guardian of the public interest. Except where
statutory provisions provide otherwise, a private person can only bring an action to
restrain a threatened breach of the law if his claim is based on an allegation that the
threatened breach will constitute an infringement or his private right or will inflict special
damage on him. What, as far as common law is concerned, are authorities for these

187
propositions? To answer that question, I would cite Attorney – General ( on the relation
of McWhirter v. Independent Broadcasting Authority ( 1973) 1 ALL E.R. 689 and
Gouriet v. Union of Post Office Workers and Others (1977) 3 All E.R. 70, two of the
cases Mr. Uzanda referred me to in the course of his very attractive submission. I do not
consider it necessary to go into the facts of those cases. Both cases concerned the scope
of the common law general principle that a private person is not entitled in law to bring
an action in his own name for the purpose of preventing or seeking compensation for
public wrong. In the former case, LORD DENNING, M.R., said, at p.696;

If a government department or a public authority transgresses the law laid

down by Parliament, or threatens to transgress it, can a member of the public come to the
court and draw the matter to its attention? He may himself be injuriously affected by the
breach. So may thousands of others like him.

Is each and every one of them debarred from access to the courts? The law is clear the no
one of them can bring an action for damages, unless he has suffered special damage over
and above everyone else. That was settled in 1535 in a case in the Year Book. That rule
was laid down in order to avoid multiplicity of actions. The argument was put in this
way; ‘If one of those injured were allowed to sue, a thousand might do so; and that was
considered intolerable. Sir William Blackstone in his commentaries said;
‘…. It would be unreasonable to multiply suits, by giving every man a separate
right of action, for what damnifies him in common only with the rest of his fellow-
subjects’

But does this rule – which prevents anyone suing for damage – also prevent any member
of the public from seeking a declaration or an injunction? (These) are discretionary
remedies, to which no one has a right but which the court can grant if it thinks fit. The
usual course, no doubt, is for the member of the public who is aggrieved to go to the
Attorney – General and ask him to intervene – either ex officio or by granting leave to
use him name in a relator action.
In all proper cases the Attorney General will, no doubt, give his leave. But it is a matter
for his discretion”

The Master of the Rolls then went on to consider whether the aggrieved member of the
public had any access to court if the Attorney- General unreasonably refused to give the
leave sought.
He answered the question in the affirmative. In the course of giving that answer, he made,
if I may respectfully say so, very helpful observations on the role of the Attorney General
in this respect. He said, at p.697:

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 It is settled in our constitutional law that in matters which concern
the public at large the Attorney General is the guardian of public interest.
Although he is a member of the government of the day, it is his duty to
represent the public interest with complete objectivity and detachment. He
must act independently of any external pressure from whatever quarter it
may come. As the guardian of the public interest, the Attorney – General
has a special duty in regard to the enforcement of the law.

His duty has been thus stated by members of this court who, each
in his turn, had held the office of Attorney – General. In 1879 in Attorney
– General v. Great Easter Railway Co. (1870) 11 Ch D449 at 500
Baggalay L.J said:
It is the interest of the public that the law should in all respects be
respected and observed, and if the law is transgressed or threatened to be
transgressed …it is the duty of the Attorney- General to take the necessary
treps to enforce it, nor does it make any difference whether he sues ex
officio, at the instance of relators.

In 1924 Sir Ernest Pollock MR repeated those very words with approval: see Attorney –
General V West minister City Council (1924)
All ER Rep 162 at 165. To these I would add the words of Lord Abinger CB who had
himself been Attorney – General in Deare V. Attorney – General (1835) IX & C Ex 197
at 208:
It has been the practice, which I hope never will be
discontinued, for the officers of the Crown to throw no difficulty in the
way of any proceeding for the purpose of bringing matters before a court
of justice, where any real point of difficulty that requires judicial decision
has occurred”
In Gouriet’s case supra, LORD WILBEREFORCE analysed the common law principle at
great length. In the course of his judgment,
“It can be properly said to be a fundamental principle of English law that private rights
can be asserted by individuals, but that public rights can only be asserted by the Attorney-
General as representing the public.

In terms of constitutional law, the rights of the public are vested in the Crown, and the
Attorney – General enforces them a an officer of the Crown, and just as the Attorney –
General has in general no power to interfere with the assertion of private rights, so in
general no private person has the right of representing the public in the assertion of public
rights. If he tries to do so his action can be struck our. “(the emphasis is supplied)
And at p. 83 b – c, his Lordship said:

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 “That it is the exclusive right of the Attorney – General to represent the
public interest, even where individuals might be interested in a larger view
of the matter, is not technical, not procedural, not fictional. It is
constitutional. I agree with Lord Westbury LC that it is also wise”
Do the provisions of s.26 (2) of the Constitution entitle the respondent to bring the action
now before this Court? I think not. In the first place, in his plaint the respondent has not
complained of unconstitutionality or illegality. Although he is a lawyer by profession, he
has not cited any provision of the Constitution or any other law, which has been violated
by the applicants. This omission is, in my view, a matter of no surprise. The respondent
could not have made such citations because under the Constitution and law then in force
no unconstitutionality or illegality cold arise in the applicants receiving from the
Government the moneys they are said to have received on behalf of CCM, or in the
Government making those disbursements. I will be forgiven, I hope, for stating the
obvious, namely, the constitutionality or legality of yesterday’s actions cannot be tested
by today’s constitution or law.

Secondly, it is my considered view that those provisions were not intended to, and do not,
abolish the application in Tanzania of the common law principle that a private person
cannot assert rights belonging to the public. In my judgment, they merely reduce the
scope of the rule. As for as public nuisance and public charity are concerned, two or more
private persons may, under s.66 and 67 of the Code respectively, bring a relator action.

But to do so, those person must obtain the consent of the Attorney – General; see
Tricumdass Mulji and An. V. Khimji Vullabhdass and others (1892) 16 Bom. 626 and
Lutifunnissa Bibi and Others v. Nazirun Bibi (1885) 11 Cal 33. The provisions of those
two sections re mandatory; suits to which the sections apply can only be instituted in
accordance with their provisions. It cannot be denied that the instant suit has not been
instituted in compliance with the provisions of s.67. It may well be – and I stress that I
say no more than that – that the trustees of a political party can, in law, seek from this
court.
Some of the relies the respondent has purported to pray for in the instant case.
Lastly, I must deal with Mr. Uzanda submission concerning subventions, which
were being made to the applicants. I am not disposed to think that all the issues raised by
the respondent in his, plant are not justifiable. Some of those issues can, in my opinion,
be properly examined in courts of law provided they are raised by a party having locus
standi. Whether CCM is a properly registered political party, for example, is plainly a
question of law, whose answer must lie in the constitution and the Political Parties Act.
Nevertheless, I agree with the learned advocate’s submission that the remedy, if any, for
any wrong allegedly committed in relation to subventions received by the applicants does
not lie in the judicial field. In general, the management of public funds, like the
management of the economy and foreign policy of the country, is the prerogative of the
executive; it is not amendable to judicial process. In the exercise of its power in that field
the executive is accountable to Parliament. It would be straining to the atmost the power

190
of judicial innovation to say that in the exercise of its power in that area the executive
falls under judicial superintendence or scrutiny. Generally speaking, judicial process is
unsuitable for determining issues arising from the exercise of those powers. I find
considerable support for that proposition in the observations made by LORD DIPLOCK
in Council of Civil Service Unions and Others v. Minister for the Civil Service (1985) 1
A.C 374, albeit in a somewhat different context. At p. 411 his Lordship said:

“…The reasons for the decision – maker taking one course rather than another do
not normally involve questions to which, if disputed, the judicial process is adapted to
provide the right answer; by which I mean that the kind of evidence that is admissible
under judicial procedures and the way in which it has to be adduced tend to exclude from
the attention of the court competing policy considerations which, if the executive
discretion is to be wisely exercised, need to be weighed against one another – a balancing
exercise which judges by their upbringing and experience are ill-qualified to perform.
An assertion that the exercise of every governmental power is subject to judicial scrutiny
would not be a sustainable proposition.

Judging from what he avers in his plaint, Mr. Ballonzi, system which existed in
this country before the multi-party system was adopted a few years ago, but the law
regards him as lacking status to maintain the proceedings he has instituted before this
Court. While he may deserve commendation for his vigilance in support of democracy,
the applicant’s have demonstrated to my satisfaction that his suit has not been properly
framed and some of his causes of action are incontestably bad in law. The suit will not
lie.
The application is granted and the suit is, under s. 95 of the Civil Procedure Code,
struck out. The applicants will have their costs.

B.A Samatta

JAJI KIONGOZI

Delivered this 9th day of May, 1995, in the presence of counsel for the applicants.

B.A Samatta

JAJI KIONGOZI

IN THE HIGH COURT OF TANZANIA

191
 AT DODOMA

CIVIL CASE NO. 5 OF 1993

REV CHISTOPHER MTIKILA………………………..PLAINTIFE

Versus

THE ATTORNEY GENERAL:…………………………DEFENDANT

RULING

LIGAKINGIRA. J:

Before this court is a petition by the Rev. Christopher Mtikila in which he seeks
various reliefs all touching and concerning the 1977 Constitution of the United Republic
of Tanzania. The petition traverses a wide area, ranging from questioning the validity of
the said Constitution to the protection of the same. When the matter came up for healing
three days ago learned counsel for the Attorney General, Mr, Kipenka Nsemombo Mussa,
raised preliminary objections to each and every matter in the petition, and this is a ruling
on those objections.

The objections are based on three broad grounds, namely, that the petitioner has
no locus standi in his claims, that the claims do not disclose a cause of action, and that the
matters are not justifiable, to put it differently, that the court has no jurisdiction to grant
the relief sought.

These are broad and complex questions which would require careful consideration
especially so in the context of this case which does not admit of generalization. To do
justice to the subject would therefore require a generous supply of time, and this I do not
happen to have. In the difficult circumstances of this case, I have decided generally to
reserve my position of thee issues to the time of deciding on claim which are prima facie
maintainable.

192
 It follows from the foregoing that there are certain matters in the petition which
must be dealt with at this stage and these are matters the presence of which I consider
unnecessary and scandalous and which may prejudice the fair trial of the suit.
These matters are to be found in pars. 4,5,6,7,8,17 and 18 of the petition and the attendant
relief in para. 19 (o), 19 (a) 19 (d) and (e), 19 (b) , 19(o), 19(k) and 19 (1) respectively.
The petition makes no pretence to an orderly formulation and but for the assistance of
learned counsel for the petitioner.

Mr. Dominic Mbezi, it is not generally easy to match a paragraph with its prayer. I will
proceed to consider each paragraph in turn but-before doing so it is desirable albeit
briefly to proper some general remarks.

The function of courts of law is to settle legal questions. We therefore have the
doctrine of separation of powers under which the executive, the legislature and the
judiciary are as far as possible assigned different duties and enjoined not to trespass into
each other’s field.

In contemporary times executive activities has tended to blur this separation and this has
in turn made it imperative for the courts to stand more resolutely between the government
and the governed. Not infrequently, therefore. Court will interfere in execute action or
inaction to protect and promote the rights of the individual citizen; they will also
intervene for similar purposes in legislative action. In doing so they will not be
interfering in lawful policy but for the purpose of ensuring the rule of law. Beyond that,
the courts will not go.

They cannot formulate governmental policy, for that is a political matter, nor will they
compel legislation for that is a legislative matter. The courts are only credited with law
making either through the doctrine of precedent or in the exercise of the power to make
rules of court. The matter that are dealt with below either arose out of confusion or failure
to appreciate the distinction between legal and political questions.

In paras 4 and 19 (o) of the petition the petitioner claims that the 1977
Constitution and its subsequent amendments were passed by an incompetent body and
therefore prays for a declaration that the said Constitution is void. I do not have to say all
that can be said on this matter.

It is sufficient, for the purpose of this ruling, to say that the claim and prayer, if admitted,
would render nugatory the rest, of the petitioner’s prayers, but I do not believe that he is
prepared for such an eventuality. It is therefore misconceived and must be removed to
pave the way for a legitimate and unprejudiced trial of other issues. Accordingly para 4
and 19 © are struck out of the petition.

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 In para 5 the petitioner claims that contrary to Art. 21 (2) of the Constitution he
has been denied the right to participate in making decisions on matters effecting the
nation to wit. In making a new Constitution through a national conference or a broad –
based constitutional commission and a referendum and therefore prays in para 19(a) for
an order directing the government to set that process in motion. This is one of those
matters which manifest a miscomputing between executive, legislative and judicial
function.

I know that the question of a new constitution and even a referendum is a

burning issue at the moment. And I venture to say that it would be impolitic to turn a
blind eye and a deaf ear to this reality. Yet I do not see how the court can make the order
prayed for in the present state of the law without appearing to infringe on the spheres of
other organs of government.

In order for such an order to be made there should be a law or parliamentary motion in
place upon which those organs can be called upon to act. We do not, for instance, have a
referendum law, and you do not simply call out people from their homes and tell them to
drop ballots in this or that box; and even if you did, that would be a procedure already.

Mr. Mussa generally attacked this and similar demands by the petitioner that they had the
effect of depicting the court as having “roving superintendence over an undefined field”
Mr. Mbezi replied by citing the case of D.P.P.V Daudi Pete, Court of Appeal Criminal
Appeal No. 28 of 1990 (unreported) in which the court held that the High Court had
unlimited inherent original jurisdiction to adjudicate upon any legal matter unless there is
express statutory provision to the contrary” It seems that Mr. Mbezi did not see the
significance of the work “legal” in that statement.

The High Court cannot, therefore, adjudicate on matters that are purely political as
distinction from legal issues. Fence, while conceding unequivocally, that every citizen is
entitled to participate in the making of decisions on matters affecting his country, the
only mode of participation now available is election of representatives to the National
Assembly. Another modes are provided for their more imagination does not provide a
legal basis for the court to make the order prayed for para 5 and 19 (a) are accordingly
struck out.
Para 6 is evidently vague and consists of political breaking. The petitioner
complains that the government continues to behave it is Tanzania still a one party
temporary and calls upon this court in para 19 ( to make a declaration that there is need
for the formation of a transitional government. In para 19 (e) he invites the court to
disestablish the present government.
I think with respect. That this is turning a court of law into a political battle ground.
Indeed in Mbezi said that the petitioner should be permitted to be heard even if his claims

194
will not succeed. The court cannot permit itself to the abused that way. These paragraphs
thus turn on the petitioner’s dislike of the government and CCM’s style of governance
which is an entirely political matter the said paragraphs are therefore struck out.

Para 7 and its counterpart para 19 (b) similarly demand a referendum to decide on
the desirability and the form of the union between Tanganyika and Zanzibar. In view of
what I have said under para 5, I need not belabour the matter further. The said paragraphs
are struck out.

Para 8 is a puzzle. It states that the government has been adding unconstitutionally
to the list of Union Matters contained in the Acts of Union (Cap. 557), but no prayer is
attached to it. I am aware of the academic writings from which this paragraph derives
inspiration but this is a court of law and not an academic institution.

Mr Mbezi elaborated that the prayer could be founded under para 19 (o) which asks for
any other reliefs which the court may deem just to grant and said that addition to the list
was a burden to the taxpayer. Whether or not it is a burden is a question of policy rather
than law. The paragraph is struck out.

Para 17 and 18 may be taken – together. The former states that the constitution
makes provision for a separate government for Zanzibar but does not make similar
provision for Tanganyika. Once again this is a policy question.
The wisdom that went into that decision, and whether or not it was wise decision are not
matters for judicial adjudication.

Para 18 the other hand, laments that Zanzibar elected Members of parliament participate
in debating and passing measures that touch concern Tanganyika only. It says that this is
unconstitutional and an unreasonable burden on the people of Tanganyika ad contrary to
the democratic principles of election and representation. As with other paragraphs
mentioned before this is a political argument with a seemingly legal veil.

A political finger is menacingly being wagged at Zanzibar M.P.s but it is otherwise not
shown how their participation at such times contravenes the Constitution. It may well be
undemocratic and undesirable for Zanzibar to decide the destiny of Tanganyika while
the latter has no such opportunities to do to the former, but that is once again not a matter
for the court. Accordingly, paras 17 and 18 and their counter parts in para 19 (k) and (e)
are struck out.

In the light of the foregoing, the following paragraphs remain that is to say: Para
9, read with 19 (g) and para 10, read with 19 (f), on Parliament’s power to amend the

195
provisions of the Constitution providing for basic human rights; para 11, read with 19 (g),
on provisions touching on the registration of political parties; para 12, read with 19 (1),
on provisions touching on the registration and operation of newspaper; para 13 and 14,
read with 19 (h), on provisions relating to peaceful assemblies and demonstrates para 15,
read with 19 (f), on the constitutionality of appointing and para 16, read with 19 (j), on
the constitutionality of appointing Zanzibaris to non- union posts on the Mainland.

The court will now adjourn to draw up issues on these matters for arguments,

K.S.K LUGAKINGIRA

JUDGE

IN THE HIGH COURT OF TANZANIA

AT DODOMA

CIVIL CASE NO: 5 OF 1993

REV. CHRISTOPHER MTIKILA:……………….PLAINTIFF

Versus

THE ATTORNEY GENERAL:……………………..DEFENDANT

RULLING

LUGAKINGITA. J.

This was an unusual petition. In it’s content and demand it constitute several
petitions in one which range from challenges to the validity of divers laws to the
protection. In the Constitution and legality. The petitioner, the Rev. Christopher Mtikila,
is a human rights companion our political activist and was represented by learned counsel
Mr. Dominic Mbozi who was assisted by Mr. Richard Rweyongeza. The respondent
Attorney General was represented by Mr. Kipenka Msememba Mussa, a Senior State
Attorney. I wish to commend them all for the industry and brilliance that went into the
preparation and presentation of arguments.

196
 The petition originally raised very diverse issues, many of them rather political in
lavour and substance, and this prompted Mr. Mussa to raise a litary of preliminary
objections which the Court resolved in the early stages of the proceedings. The objections
were grounded in questions of the petitioner’s licus standi, cause of action and
justiciability of some of the issues.

At the end of the day a number of matters were struck out and issues were then framed
for the survivours. In view of the character of the petition which had to be amended
several times it is better to paraphrase these issues rather then merely list them.
The first issue is a general one and is tied up with the second and fifth issues. It
seeks to establish generally whether the fundamental rights guaranteed in Part III,
Chapter One of the Constitution of the of the United Republic, 1977 are immutable. The
inquiry is prompted by a set of amendments to the Constitution vide the Eighth
Constitutional Amendment Act, 1992 (No. 4).

The Act amends Articles 39, 67 and 77 in a manner, which appears to infringe the right
of participation in national public affairs, which is guaranteed by Art. 21 (1): it also
amends Art. 20 in a manner, which appears to infringe the freedom of association, which
is guaranteed in sub-art, (1) thereof. To put it differently, the problem posed in the first
issue is whether the amendments to the Constitution were validly made and, if not,
whether they can be declared void pursuant to the provisions of Art. 64 (5).

The second issue turns on the provisions of ss. 8, 9, 10 and 15 of the Political
Parties Act, 1992 (No. 5) which was enacted pursuant to the amendment to Art, 20. These
provisions are alleged to inhibit the formation of political parties and therefore to infringe
the freedom of association. I am called upon to declare them unconstitutional and void.
The fifth issue arises from the amendment to Articles 39, 67 and 77 as well as s. 39 of the
Local Authorities (Elections) Act, 1979. These amendments renders it impossible for
independent candidates to contest presidential, parliamentary or local council elections. I
am again called upon to remedy the situation.

In the third issue the petition takes on ss. 5 (2), 13, 25, and 35 – 47 of the
Newspapers Act, 1976 ( No. 3.). Section 5 (2) empowers to exclude any newspaper from
the operation of any of the provisions relating to the registration of newspapers.
Section 13 empowers the Minister to require any publisher of a newspaper to execute and
register a bond in the office of the Registrar of Newspapers. Section 25 empowers the
Minister to order cessation of publication of any newspaper. Sections 37 – 47 are
concerned with defamation and the punishment for libel.
Finally, the petition takes on para 12 (1) of Government Notice No. 166 of 1977, which
empowers the Registrar to refuse registration of a newspaper. It is contended that all

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these provisions are ordinary and liable to abuse and constitution an infringement to the
freedom of prevision which is guaranteed under act. 18 (1).

The fourth issue turns on the freedom of peaceful assembly and public expression
and questions the constitutionality of as 40, 41, 42 and 43 of the Police Force Ordinance,
Cap. 322 as well as s. 11 (1) and (2) of the Political Parties Act. These provisions make it
necessary for permits to be obtained in order to hold meetings or organize processions
and also provide for police duties in relation thereto. In the sixth and final issue a
declaration is sought on the constitutionality of the appointment of Zanzibaris to non –
Union posts on the Mainland.

In my ruling in the preliminary objections I reserved for consideration at this

stage the questions of locus standi cause of action and justiciability and I will proceed to
do so before considering the matters set out above.

Arguing the questions on locus standi, no doubt with a mind to the common law
orthodox position, Mr. Mussa submitted that the petitioner had to show a sufficient
interest in the outcome. He considered this to be implied in Art, 30 (3) of the
Constitution. In his view the petitioner had to demonstrated a greater personal interest
than that of the general public, and cited the Nigerian case of Thomas & Ors. V.
Olufoseye (1986) LRC (const) 639 in support of his argument.

In that case it was held by the Court of Appeal that under s. 6 (6) (b) of the 1979 Nigerian
Constitution it was necessary for the appellants to establish a sufficient interest in
maintaining the action and this should be a personal interest over and above that of the
general public. Ademola, J.C. A said, at p 650:

It is also the law as laid down in the (Adesanya) case that, to entitle a person to
involve judicial power, he must show that either his personal interest will
immediately be or has been adversely affected by the action or that he has sus-
tained or is in immediate danger of susta – ining an injury is over and above that
of the general public.

Basing on this, Mr. Mussa went on to assert that the crusial factor in the petition was the
petitioner himself and not the contents of the petition. Furthermore, he contended that
Art. 26 (2) of the Constitution did not in itself confer locus standi and appeared to read
the provision as if it were not independent in itself.

In response Mr. Mbezi argued that standing was certainly conferred on the
petitioner by Art. 26 (2) and that personal interest ( on injury ) did not have to be

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disclosed in that context. He maintained that the alleged illegality of the laws was
sufficient to justify the petition under that provision. Mr. Mbezi further stated that the
petitioner acquired locus standi under Art. 30 (3) as well and referred to the dispersal of
his meeting under the provisions of the Police Force Ordinance, the refusal to register his
party under the provisions of the Political Parties Act and the banning of Michapo and
Cheka newspapers (his alleged mouthpieces) as sufficiently demonstrating the
petitioner’s interest within the contemplation of Act. 30 (3) Mr. Mbezi further argued that
in view of the provisions of Art. 64 (5) the Court could be moved into action by any
petitioner.

I have given due consideration to the contending arguments and feel called upon
to deal with the subject at some length. The status of a litigant in administrative law is a
crucial factor and it has assumed an added dimension in constitutional law in the wake of
written constitutions.

In the English common law the Litigant’s locus standi was the handmaid of judicial
review of administrative actions. Whenever a private individual challenged the decision
of an administrative body the question always arose whether that individual had sufficient
interest is the decision to justify the court’s intervention. Hence, it is stated in Wade and
Philips. Constitutional law (1965: 672):

In administrative law it is necessary

for a complainant to have a peculiar
grievance which is not suffered in
common with the rest of the public.

The turning point in England came with the procedural reforms in judicial review vide, s.
31 of the Supreme Court Act, 1983,which was to lead in the course of the 1980 to the
recognition of the existence of public law as a distinct sphere from private law. In other
parts of the commonwealth, notably India and Canada, a similar but imperceptible
development came to manifest itself in the doctrine of public interest litigation.

Traditionally, common law confines standing to litigate in protection of public rights to

the Attorney General and this was reaffirmed by the House of Lords in Guriet v. Union of
Post Office Workers (1978) AC 435, and the Attorney General’s discretion in such cases
may be exercised at the instance of an individual.

But before even the enactment of the Supreme Court Act, a liberal view of standing was
already taking shape and a generous approach to the issue was already considered

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desirable. This is illustrated by these words of Lord Diplock in IRC V. National
Federation of Self – Employed and Small Businesses Ltd. ( 1981) 2 All E.R. 93, 107:

It would, in my view, be a grave lacuna in our system of public law if a pressure group,
like the federation or even a single spirited taxpayer, were prevented by out – dated
technical rules of locus standi from bringing the matter to the attention of the a court to
vindicate the rule of law and get the unlawful conduct stopped.

Yet more contemporary developments indicate that in England judges are

beginning to acknowledge the possible appearance of apparent “Busy – bodies” where
public interest litigation is concerned.

The late Raymond Blackburn, a lawyer and former Member of parliament,

litigated several public interest questions in which he evidently had no greater interest
than the other members of the public. In R.V Metropolitan Police Commissioner ex parte
Blackburn, (1963) 2 QB 118, he challenged police policy in not enforcing the gaming or
obscenity laws, and in Blackburn v. Attorney General, (1971) 2 All E.R 1380, he
challenged Government policy in joining the European Community.

The developments in Canada have been no less breathtaking and we there find
more generous standing rules applied than elsewhere is the older Commonwealth. This
has been largely facilitated by the existence of a written constitution and the
incorporation of a charter of basic rights. The taxpayer is the central figure in the
Canadian approach. In Thorson v. A.G of Canada, (1975) 1 SCR 138. a taxpayer was
allowed by a majority to challenge the constitutionality of the Official Languages Act.

Laskin. J. Speaking for the majority contemplated “…. Whether a question of

constitutionality should be immunised from judicial review by denying standing to
anyone to challenge the impugned statute. “It was observal that standing in constitutional
cases was a matter for the exercise of judicial discretion. In the case of Nova Scotia
Board of Censors v.MoNeil, (1976) 2 SRC 265, the Supreme Court again granted
standing to a taxpayer to challenge the validity of a provincial Act regulating film and
theatre show. This position is also illustrated in Minister of Justice v. Borowaki (1981) 2
SCR 675 where the majority granted standing to a taxpayer impugning federal legislation
allowing abortion, and ruled:

……… to establish status as a plain – tiff in a suit seeking a

declaration that the legislation is invalid, if there is a serious issue
if invalidity, a person need only to show that he is affected by it
directly or that he has a genuine interest as a citizen in the validity

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 of the legislation and that there is no other and effective manner in
which the issue may be brought before the Court.

The Canadian Supreme Court has in fact extended the liberalizing effect of these
judgments beyond constitution cases.

Finally, it is important to revisit the Nigerian position, What was said in Thomas
was not merely an expression of the seeming inflexibility of s. 6(6) of the 1979 Nigerian
Constitution but it was also a product of the colonial heritage, Soon after the attainment
of independence Nigerian courts found themselves having to determine when and under
what circumstances will a litigant be accorded standing to challenge the constitutionality
of a statute or to ask for a judicial review.

In Olawayin v.A.G of Northern Nigeria (1961) AII N.L.R 269, the plaintiff had
challenged the Constitutionality of a law which prohibited children from engaging in
political activities. The trial court dismissed the claim on the ground that no right of the
plaintiff was alleged to have been infringed and that it would be contrary to public
principle to make the declaration asked for in value.
He appealed to the Federal Supreme Court which dismissed the appeal on the same
ground of absence of sufficient interest. In a classic restatement of the orthodox common
law approach, Unworthy, F.J. said, at p. 274.

There was no suggestion that the appellant was in imminent danger of

coming into conflict with the law or that there has been any real or direct
interference with his normal business or other activities…the appellant
failed to show that he had a sufficient interest to sustain a claim...to hold
that there was an interest here would amount to saying that a private
individual obtains an interest by the mere enactment of a law which may
in future come in conflict.

Curiously, the Nigerian courts remained stuck in that position even when the 1979
Constitution suggested a way out with the clause –

Any person who alleges that any of the provisions

of this chapter has bee, is being or likely to be
contravened in any State in relation to him may
apply to a High Court in that State for redress.

This is illustrated in the much criticized decision in Adesanya v. President of Nigeria &
Anor. (1981) 1 AII N.L.R.I. In that case the appellant brought action challenging the

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appointment by the President of the second respondent to the chairmanship of the Federal
Electoral Commission. The latter was at the material time the Chief Judge of Bendel
State and was, therefore, disqualified from being appointed a member of the
Commission.

When the matter came up for final disposal before the Supreme Court it was unanimously
held that the appellant had not demonstrated the appointment and subsequent
confirmation by the Senate of the second respondent had in any way infringed his civil
right and obligations. Significantly, though, Fetayi – Williams, C.J.N. who delivered the
leading judgment and these interesting remarks to make ( at p. 20):

I take significant cognizance of the fact that Nigeria is a developing

country with a multi – ethnio society and a written Federal Constitution,
where rumourmongering is the pastime of the market places and the
construction sites. To deny any member of such a society who is aware or
believes, or is led to believe, that there has been an infraction of any of the
provisions or our Constitution, or that any law passed by any of our
Legislative Houses, whether Federal or State, is unconstitutional, access to
a Court of law to air his grievance on the flimsy execuse of lack of
sufficient interest is to provide a ready recipe for organized
disenchantment with the judicial process.

There was unfavourable reaction form the public and the profession to the Adesanya,
decision and the ambivalence of the Chief Justice in the above passage provided more
ammunition. Henoeforth many of the Nigerian courts preferred to use the broad and
liberal part of the judgment of the Chief Justice, Therefore, in Chief Isagba y. Alege
(1981) 2 NCLR 424, Omosungly accorded standing to a plaintiff by holding that any
Nigerian taxpayer had sufficient interest in the observance of the provisions of the
Constitution by any organ of the State of its agency. And in A.G of Benden State v. A.G
of Nigerian (1982) 3 NCLRI, 88, Obaseki, J.S.C., who was a party to he decision in
Odesanya, came around to say:

The constitution has opened the gates to the courts by its provisions and
there can be no justifiable reasons for closing the gates against those who
do not want to be governed by a law enacted NOT in accordance with the
provisions of the constitution.

The shift in Nigeria was sealed in Adediran v. Interland Transport Ltd. (1991) 9 NWLR
155 where Karibi – Whyte, J.S.C said:

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…the restriction imposed at common law on the right of action…is inconsistent with the
provisons of s. 6(6) (b) of the Constitution. 1979 and to that I think the high constitutional
policy involved in s. 6(6) (b) is the removal of the obstacles erected by the common law
requirements against individuals bringing actions before the court against the government
and its institutions..

it was necessary to treat the subject to this length in order to demonstrate that Mr.
Mussa’s appreciation or locus standi in the context of constitutional litigation no longer
holds good. The notion of personal interest, personal injury or sufficient interest over and
above the interest of the general public has more to do with private law as dictinct from
public law. In matters of public interest litigation this Court will not deny standing to a
genuine and bona fide litigant even where he has no personal interest in the matter. This
position also according with the decision in Benazir Dhutto v. Federation of Pakistan
PLD 1988 SS. 46, where it was held by the Supreme Court that the traditional rule of
locus standi can be dispensed with and procedure available in public interest litigation
can be made us of if the petition is brought to the court by a person acting bona fide.

The relevance of public interest litigation in Tanzania cannot be over –

imphasized. Having regard to our social economy conditions, this development promises
more hope to our people than any other strategy currently in place. First of all, ill is
second in Africa in wiping out illiteracy but that is statistical juggling which is not
reflected on the ground. If we were that literate it would have been unnecessary for
Hanang District Council to pass bye – laws for compulsory adult education which were
recently published as Government Notice No. 191 of 1994.

By reason of this illiteracy a greater part of the population is unaware of their rights, let
alone how the same can be realized. Secondly, Tanzania are massively poor. Our ranking
in the world on the basic of per capita income has persistently been the source of
embarrassment. Public interest litigation is a sophisticated mechanism which requires
professional handling. By reason of limited resources the vast majority of our people
cannot afford to engage lawyers even where they were aware of the infringement of their
rights and the perversion of the Constitution.

Other factors could be listed but perhaps the most painful of all is that over the years
since independence Tanzania have developed a culture of apathy and silence. This, in
large measure, is a product of institutionalised mono –party polities which in its
repressive dimension, like detention without trial, supped up initiative and guts. The
people found contentment supped up initiative and guts.

The people found contentment in being receivers without being seekers. Out leaders very
well recognize this, and with the emergence of transparency in governor they have not
hesitated to affirm it. When the National Assembly was debating Hon. J.S. Warioba’s

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private motion on the desirability of a referendum before some features of the
Constitution were tampered with, Hon. Sukwa Said Sukwa, after tow interruptions by his
colleagues, continued and said (Parliamentary Debates, 26.8.1994):

Mheshimiwa Spika, nilisema kwamba tatizo la nchi yetu sio wananchi. Lazima
tukubali hili kwa kweli, tatizo ni sisi viongozi. Kama sisi viongozi tutakubaliana,
wananchi hawana matatizo. Mimi nina hakika Mheshimiwa Spika. Kama viongozi wa
Tanzania wote, wa pande zote mbili wa Zanzibar na wa Tanzania Bara, tukubali kusema
kesho Serikali moja, basi itakuwa kesho, na wananchi watafanya maandamano kuunga
mkono. Maana wananchi wetu hawana tatizo. Kwa nini tunawapelekea hili tatizo?
Nasema tatizo ni sisi viongozi.

Given all these and other circumstances, if there should spring up a public – spirited
individual and seed the Court’s intervention against legislation or actions that pervert the
Constitution the Court, as guardian and trustee of the Constitution and what it stands for,
is under an obligation to rise up to the occasion and grant him standing.

The present petitioner is such an individual.

These principles find expression in our Constitution.

It is apparent from the scheme of Part III, Chapter One of the Constitution that every
person in Tanzania is vested with a double capacity: the capacity as an individual and the
capacity as a member of the community. In his former capacity he enjoys all the basic
rights set out in Art. 12 to Art. 24: in the latter capacity he is bounded to discharge duties
toward the community as indicated in Art. 25 to Art. 28.

This scheme reflects the modern trend in constitutionalism which recognizes the pre-
emimence of the community in the formulation of the constitution. It is recognized that
rights are correlative with funetions; we have them that we may make our contribution to
the social end. Our Constitution goes further to emphasize the two capacities by
equipping the individual with a double standing to sue. In the first place he is vested with
standing by Art. 30 (3) which states:

(3) Where ay person alleges that any provision of this part of this Chapter or any
law involving a basic right or duty has been, is being or is likely to be contravened in
relation to him in any part of the United Republic, he may, without prejudice to any other
action or remedy lawfully available to him in respect of the same matter, institute
proceedings for relief in the High Court.

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This provision, in my view, caters for both personal and public interest litigation for at
times the two may prove inseparable. A person who sues because he desires to be an
independent parliamentary candidate where the system does not so allow necessarily
shoulders the burden for the public. It is also important to not that under this provision
action lies where a person’s has been, is being or is likely to be contravened.” These are
plain and clear words which admit of no controversy. Standing is therefore available
under the Constitution even where contravention of a basic right is reasonably
apprehended.
The case of Thomas, and in as much as it was decided in deference to the much criticized
decision in Adesanya, has no relevance in the context of our Constitution. In the upshot it
is not correct to say, as Mr. Mussa suggested, that the petitioner has no locus standi
because he cannot show that his rights have already been infringed. In my view he is
within the purview of Art. 30 (3) if there is in existence a law the operation of which is
likely to contravene his basic rights.

Standing is additionally conferred by Art. 26 (2), and this states:

(2) Every person is entitled, subject to the procedure provided for by the
law, to institute proceedings for the protection of the Constitution and legality.

Mr. Mussa suggested that this provision has to be read with Art.30(3) and cannot be used
in lieu of the latter. With respect, I cannot agree. It is a cardinal rule of statutory and
constitutional interpretation that every provision stands independent of the other and has
special function to perform unless the contrary insention appears. There is nothing in
Art. 26(2) or elsewhere to link it to Art. 30(3). The only linkage is to Art. 30(4) and this
is one of procedure rather than substance Clause (4) empowers Parliament to make
provision for the procedure relating to institution of proceedings under the article. It has
not done so todate but that does not mean that the court is hamstrung. In D.P.P. v. Daudi
Pete, Criminal Appeal No. 28 of 1990 ( unreported).

The Court of Appeal stated in that ….until the Parliament legislates under sub-article (4)
the enforcement of the Basic Rights, Freedoms and Duties may be effected under the
procedure and practice that is available in the High Court in the exercise of its original
jurisdiction, depending on the nature of the remedy sought, “ I hold Art. 26 (2) to be an
independent and additional source of standing which can be invoked by a litigant
depending on the nature of his claim.
Under this provision, too, and having regard to the objective thereof – the protection of
the Constitution and legality – a proceeding may be instituted to challenge either the
validity of a law which appears to be inconsistent with the Constitution or the legality of
decision or action that appears to be contrary to the Constitution or the law of the lard.
Personal interest is not an ingredient in this provision it is tailored for the community and
falls under the sub-title “Duties to the Society.” It cocurs to me, therefore, that Art. 26

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(2) enacts into our Contribution the doctrine of public interest litigation. It is then not in
logic or foreign precedent that we have to go for this doctrine; I t is already with us in our
can Constitution.

I hast in to emphasise, however, that standing will be granted on the basic of

public interest litigation where the petition is bona fide and evidently for the public good
and where the Court can provide an effective remedy. This point is underscored in People
Union for Democratic Rights v. Minister of Home Affairs, AIR 1985 Dedhi 268, where it
was stated that “public interest litigation” meant nothing more than what it stated,
namely, it is a litigation in the interest of the public. It is not the type of litigation which
is meant to satisfy the curiosity of the people, but it is a litigation which is instituted with
a desire that the court would be able to give effective relief to the whole or a section of
the society.

It is emphasis in the case that the condition which must be fulfilled before public interest
litigation a entertained by the court is that the court should be in a position to give
effective and complete relief. If no effective or complete relief can be granted, the court
should not entertain public interest litigation.

I gave serious consideration to the matters raised in this petition and the prayers
connected therewith and I was persuaded that in quite a number of areas the public
interest overwhelmed what appeared to be a private factor. I therefore allowed arguments
to proceed on the issues reviewed above. But in the light of those arguments and what is
stated in this paragraph, it may be necessary to reconsider the position of one issue at the
appropriate stage later. Meanwhile I will turn to dispose of the question of cause of
action.

Cause of action is not a problem in this petition. Mr. Mussa seemed to suggest,
but I respectfully disagree, that in order for cause of action to arise an event injurious to
the rights of the petitioner must have taken place. In my view, where the issue is
whether a law is unconstitutional the court looks at the law itself but not at how it works.
The following passage from Chitaley & Rao, The Constitution of India (1970 : 686),
citing Prahalad Jeha v. State. AIR 1950 Orissa 157, is to the point:

In order to determine whether a particular law is repugnant or inconsistent with

the Fundamental Right it is the provisions of the Act that must be looked at and not the
manner in which the power under the provision is actually exercised. Inconsistency or
repugnancy does not depend upon the exercise of the power by virtue of the provisions in
the Act but on the nature of the provisions themselves.

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I agree and can not wish to add anything more. In this petition the dispute is over the
validity of various laws and this, in my view, constitutes the necessary cause of action. A
situation could certainly arise where the cause of action would depend upon actual,
exercise of power.

Such a situation is exemplified in this petition where the constitutionality of the

appointment of Zanzibaris to non- union positions on the Mainland is questioned. In that
context it is the appointments themselves that constitute the cause of action our that has
to do with the validity of the action rather than a law. There now remains the question of
justiciability of the claims but since that has more to do with the first of the issues, I will
now turn to consider them.

The first issue seeks to determine the immutability of basic rights enacted in the
Constitution. This turns on the power of the Parliament to amend the provisions
providing for these rights. Specifically, what is at issue are the amendments to Art. 20
and Art. 39 of the Constitution vide the Eighth Constitutional Amendment Act, 1992. In
the original form Art. 20 read as follows:

20 – (1) Subject to the laws of the land, every person is entitled to freedom of
peaceful assembly, association and public expression, that is to say, the right to assemble
freely and peaceably, to associate wit other persons and, in particular, to form or belong
to organizations or associations formed for the purposes of protecting or furthering his or
nay other interests.
(2) Subject to the relevant laws of the land, a person shall not be compelled to belong to
any association.

In its amending form clause (1) remains unaffected, hence the rights and freedoms spolt
out therein remain as before. Our interest in this petition centers on the freedom of
association which, under the present multi-party system, includes the formation of
political parties. Clause (2) was also unaffected by the amendment save that it now
became clause (4). In between there are new clauses (2) and (3) which it is necessary to
set out in full. (The translation from Kiswahili is partly my own and partly adapted.)

(2) Without prejudice to subsection (1) no political party shall qualify for
registration if by its constitution and policy –
(a) It aims to advocate or further the interests of -

(i) Any religious belief of group;

(ii) Any tribal, ethnic or racial group;
(iii) Only a specific area within any part of the United Repulic;

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 (b) It advocated the breaking up of the Union constitutions the United
Republic;

(c) It accept or advocates the use or force or violence as a means of attaining

its political objectives;
(d) It advocates or aims to carry on its political activities exclusively in one
part of the United Republic; or
(e) It does not allow periodic and democratic elections of its leadership.

(3) Parliament may enact legislation preseribing conditions, which will ensure
compliance by political parties with the provisions of sub- section (2) in
relation to the people’s freedom and right of association and assembly.

Pursuant to clause (3), Parliament enacted the Political Parties Act, 1992 providing for
the registration for political parties and other matters. Clause (2) above was lifted in its
entirety and re- enacted as s. 9 (2) of the Act. In addition. 8 of the Act provided for a two
– stage registration – provisional and full registration. Provisional registration is done
upon fulfillment of the conditions prescribed in s. 9; full registration is effected after
fulfillment of the conditions in s. 10 which reads:

10:.No political party shall be qualified to be fully registered unless –

(a) it has been provisionally registered;

(b) it has obtained not less than two hundred members who are qualified to be
registered as voters for the purpose of parliamentary elections from each
of at least ten Regions of the United Republic out of which at least tow
Regions are in Tanzania, Zanzibar being one Region each from Zanzibar
and Pemba; and
(c) it has submitted the names of the national leadership of the party and such
leadership drowns its members from both Tanzania, Zanzibar and
Tanzania Mainland:
(d) it has submitted to the Registrar the location of its head office within the
United Republic and a postal address to which notices and other
communications may be sent.

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It is contended by the petitioner that ss. 8, 9 and 10 of the Political Parties. Conditions on
the formation of political parties and thereby inhibiting enjoyment of the freedom of
association assented in Art. 20 (1). It is further contended that Art. 20(2) and (3) from
section derive are for the same reason unconstitutional. I am therefore invited to strike
court Art 20(2) and (3) of the institution as well as ss. 8,9,10 and 15 of the Political
Parties Art.

On the other hand. Art. 39 previously provided as follows ; -

39. No person shall be eligible for election to the office of President of the United
Republic unless he –
(a) has attained the age of forty years: and
(b) is otherwise qualified for election as a Member of the National Assembly or
of the (Zanzibar) House of Representatives.

As amended by the Eighth Constitutional Amendment Act, the above paragraphs are
retained but re – numbered (b) and (d) respectively. There is added new paragraphs (a)
and (c) which state (my tranalation ):

(a) is a citizen of the United Republic by birth;

(b) is a member of and sponsored by a political party.

The requirement for membership of and sponsorship by a political party is extended to

candidacy for the National Assembly in Art. 67 and Art. 77 as well as for local council in
s. 39 of the Local Authorities (Elections) Act. 1979 as amended by the Local Authorities
(Elections) (Amendment) Act, 1992 (No. 7) s. 9.

The petitioner contends that the requirement for membership of and sponsorship by a
political party abridges the right to participate in national public affairs: ranted by Art. 21
(1) which states;-
21 – (1) Every citizen of the United Republic is entitled to take part in the
government of the country, either directly or through freely chosen representatives, in
accordance with procedure provided by or under the law.

I am therefore called upon to strike out para (d) in Art. 39 and wherever else the
requirement for membership of and sponsorship by a political party occurs.

As stated earlier the issue of immutability turns on Parliament’s power or amend

the Constitution. In assessing this power it on is appropriate to recall, in the first place,
that fundamental rights are not gifts form the State. They inhere in a person by reason of

209
his birth and are therefore prior to the State and the law. In our times one method of
judging the character of a government is to look at the extent to which it recognises and
protects human rights. The raison d’etre for any government is its ability to secure the
welfare of the governed. Its claim to the allegiance of the coverned has be in terms of
what that allegiance is to serve.

Allegiance has to be correlative with rights. Modern constitutions like our own have
enacted fundamental rights in their provisions. This does not mean that the rights are
thereby created; rather it is evidence of their recognition and the intention that they
should be enforceable in a court of law. It can therefore be argued that the very decision
to translate fundamental rights into a written code is by itself a restraint upon the powers
of Parliament to act arbitrarily.

As aptly observed by Chief Justice Nasim Hassan Shah in Muhammad Nawaz Sharif v.
President at Pakistan, PLD 1993 SC 473, 557.

Fundamental Rights in essence are restraints on the arbitrary exercise of power by

the State in relation to any activity that an individual can engage. Although constitutional
guarantees are after couched in permissive terminology, in essence they impose
limitations on the power of the State to restrict such activities. Moreover, Basic or
Fundamental Rights of individuals which presently stand formally incorporated in the
modern constitutional documents derive their lineage from end are traceable to the
ancient Natural law.

Our Constitution confers on Parliament very wide powers of amendment but those
powers are by no means unlimited. These powers are to be found in Art. 98(1) and (2)
and it is necessary to set out the relevant parts.

98 – (1) Parliament may enact legislation altering any provision of this

Constitution (emphasis added)
(2) For the purpose of construing the provisions of sub – section (1), references to
alteration of any provision of this Constitution or of any law include references to the
amendment or modification, of those provisions, suspension or repeal and replacement of
the provisions or the re – enactment of the provisions or the re – enactment or
modification in the application of those provisions.

These powers are evidently wide. It has to be accepted, in the first place, that Parliament
has power to amend even those provisions providing for basic human rights. Secondly,
that power is not confined to a small sphere.

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It extends to modification of those provisions, suspension or repeal and replacement or
same, re – enactment or modification in the application thereof. Drastic as some of these
terms may sound, I still do not believe that they authorize abrogation from the
Constitution of these rights. The provisions of Art. 98 should be read in the light of the
clawback clauses in Art. 30(2) and 31. The former reads as follows:-

(2) It is hereby declared that no provision contained in this Part of this

Constitution, which stipulates the basic human rights freedoms and duties shall be
construed as invalidating any existing law or prohibiting the enactment of any law or the
doing of any lawful act under such law, making provision for –

(a) ensuring that the rights and freedoms of others or the public interest are not
prejudiced by the misuse of the individual rights and freedoms;
(b) ensuring the interests of defence, public safety, public order, public morality,
public health, rural and urban development planning, the development planning,
the development and utilisation of mineral resources or the development or
utilization of any other property in such manner as to promote the public benefit:
(c) ensuring the execution of the judgment or order of a court given or made in any
civil or criminal proceeding;
(d) the protection of the reputation, rights and freedoms of others or the private lives
of persons involved in any court proceedings, prohibiting the disclosure of
confidential information, or the safeguarding of the dignity, authority and
independence of the courts;
(e) imposing restrictions, supervision and control over the establishment,
management and operation of societies and private companies in the country; or
(f) enabling any other thing to be done which promotes, enhances or protects the
national interest generally.

Art. 31, on the other hand, empowers Parliament, notwithstanding the provision of Art.
30(2), to legislate for measure derogating from the provisions of Art. 14 (Right to live)
and Art. 15 (Right to personal freedom) during periods of emergency, or in ordinary
times in relation to individuals who are believed to be conducting themselves in a manner
that endangers or compromises national security. We may also refer to Art. 97(1) which
provides in part –

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 (1) subjected to the other provisions of this Constitution, the legislative power
of Parliament shall be exercised through the National Assembly….

Reading all these provisions together, it occurs to me that Parliaments power in relation
to the amendment of the provisions under part III of Chapter One of the Constitution can
only be exercised within the limits of Art.30(2) and Art. 31. Hence, even if it is a
suspension or a repeal and replacement it must be justifiable within the scope of the two
provisions. I have therefore come to the conclusion, and Mr. Mussa concedes, that
Parliament’s powers of amendment are not unlimited. It should be recognized, on the
other hand, that society can never be static. New times bring with them new needs and
aspirations. Society’s perception of basic human rights is therefore bound to change
according to changed circumstances, and that makes it imperative for Parliament to have
power to alter every provision of the Constitution. What remains immutable, therefore, is
the ethic of human rights but not the letter by which they are expressed.

We turn to consider whether the amendments complained of were not within the
constitutional limits, beginning with Art. 20 (2) and (3). The former does not abrogate or
abridge beyond the purview of Art. 30(2) the right of association guaranteed under Art.
20(1). It merely lays down the condition a political party has to fulfil before registration
and all these conditions are within the permeters or Art. 30 (2).

The conditions are clearly aimed at the promotion and enhancement or public safety,
public order and national cohesion. There cannot be any such thing as absolute or
uncontrolled liberty wholly freedom restraint, for that would lead to anarehy and
disorder. Indeed, in your country like ours, nothing could me more suicidal that to licence
parties based on tribe, race or religion.

The problem with Art. 20(3) is even less apparent. It is an enabling provision giving
Parliament power to enact a law for the registration of political parties and for ensuring
compliance with Art. 20(2) by those parties. It does not expressly tell Parliament what to
write in that law. I am satisfied and hold that Art. 20(2) and (3) were validly enacted.
There remains, however, the provisions of the Political Parties act which fall for
comment under the second issue. Next is Art. 39 and allied articles and provisions
relating to presidential, parliamentary and local council candidacies.
Once again, I am unfortunate in having say that these amendments were within the
powers of the Parliament. They do not abrogate but merely modify the application of
Art.21(1) by providing that participation in national public affairs shall be through
political parties. As seen earlier, modification in application is covered under Art. 98(2). I
also think that the amendments are within the ambit of Art. 30(2) if public order be taken
as having supplied the inspiration.

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These amendments were, therefore, validly made. It should be understood, however, that
I am at this juncture talking of validity in strict legal terms; the amendments are
otherwise not free from difficulties and these are dealt with under the firth issue.
The Court’s power to declare a law void is founded in Art. 64(5). Having held
that the impugned constitutional amendments were validly made, I do not have to
consider whether such amendments are “law” within the meaning of the article. I have
read in this connection the interesting arguments in the cases of Golaknath v. State of
Punjab (1967) 2 SCR 762 and Kesavananda v. State of Keral (1973) Sup. SCRI, but in
view of the decision I have reached, I am unable to take advantage of them.
The second issue questions the constitutionality of ss. 8,9,10, and 15 of the
Polotical Parties Act. Much effort had gone into this matter when I was obliged to admit
that the trial of this issue should have been stayed.
Last year the petitioner filed at the Dar es Salaam registry of this Court an application for
orders of certiorari and mandamus. That was Miscellaneous Civil Cause No. 67 0f 1993,
the applicants being himself and the Registrar of Political Parties. The grounds for the
application were that the Registrar was biased in refusing to register the Democratic Party
and that the Political Parties Act (apparently the whole of it) was unconstitutional and
void. He was praying for orders to quash the Registrar’s decision and to direct him to
reconsider the Democratic Party’s application according to law.

The application was heard and subsequently dismissed by Maina, J. on 14 December,

1993. Two days later the petitioner lodged a notice of appeal. There is now pending
before the Court of Appeal a Civil Appeal No. 24 of 1994, in which the first ground of
appeal states:-

The learned judge erred in law in failing to hold that section 8 and 10 of the
Political Parties Act, 1992, Act No, 5 of 1992 are violative of article 13 (6) (a) of the
Constitution of the United Republic of Tanzania and thereof null and void on the ground
that they do not provide for fair hearing before the Second Respondent’s decision to
refuse full registration of a political party.

The memorandum concludes:-

It is proposed to ask the Court for the following orders:-

(i) an order striking out sections 8,10 and 16 of the Political Parties Act,
1992.

In the present petition I am confronted with the same prayer with slight
variation, namely, to strike out ss. 8, 9, 10, and 15 of the same Act. In
other words a suit in which the matter in issue is substantially in issue in
another suit between the same parties is pending in another court in the

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 country. It seems also that the Dar es Salaam suit was instituted earlier
because the record of this petition shows that its trial was being put off to
await the outcome of the former. In these proceedings we do not have a
prescribed procedure but we have invariably invoked and been guided by
the provisions of the Civil Procedure Code, 1966. Section 8 of the Code
provides thus:-

8. No court shall proceed with the trial of any suit in which the matter in issue is also
directly or substantially in issue in a previously instituted suit between the same
parties, or between parties under whom they or any of them claim litigating under
the same title where such suit is pending in the same or any other court in
Tanganyika having jurisdiction to grant the relief claimed.

This provision is in parimaterial with s. 10 of the Indian Code of Civil Procedure, 1908.
MULIA observes in relation to the latter that the object is to prevent courts of concurrent
jurisdiction form simultaneously trying two parcelled suits in respect of the same matter
in issue. It goes on to claim, citing a 1919 obsoure authority, that is section enacts merely
a rule of procedure and a decree passed in contravention of it is not a nullity and cannot
be disregarded in execution proceedings. I think, however, that this might be true where
the subsequent suit is decided without knowledge of the existence of the suit.

It is the pendinoy of the previously instituted suit that constitutes a bar to the trial
of the subsequent suit. The word “suit” has been held to include “appeal” see Raj
Spinning Mills v.
A.G. King Ltd (1954) A. Punj. 113. The “matter in issue” in the provision has also been
construed as having reference to the entire subject matter in controversy between the
parties and not merely one or more of the several issues: see Hariram v. Hazi Mohamed
(1954) Allahabad 141. the same position was stated by the Court of Appeal of Eastern
Africa in Javda Karson v. Harman Singh Bhogal (1953)20 EACA 74 when they were
considering s. 6 of Kenya Civil Procedure Ordinance which is again in parimaterial with
our s. 8.
The case before me is, of course, a novelty. Like the eye of a butterfly, it is a composition
of several petitions wrapped up into one. When considering the expression “matter in
issue” one has to consider each issue independently for they have no relationship.

There is not one subject matter is controversy between the parties but several. In these
circumstances the second issue is severable as it could, indeed have been tried in a
separate suit. In the circumstances of this case “matter in issue” must be taken to be
matter in issue in each of the six issues framed and I am satisfied that the same matter is
in issue in the appeal pending before the Court of Appeal.
In Jinnat Bibi v. Howeah Jute Mills Co. Ltd. AIR 1932 Cal. 751, it was held that
the provisions of s. 10 of the Indian Code were mandatory and left no discretion to the

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courts in respect of the stay of suits when circumstances are such as to invoke the
operation of that sections. It was further held that one test of the application of the to a
particular case is whether on the final decision being rouched in the previous suit such
decision would operate as res judicate in the subsequent suit. Indian decisions are
certainly not birding on this Court, but they deserve the greatest respect where they
exports a provision which was previously our own and which remains in pari material
with our own.

The Indian Code of Civil Procedure was in application in Tanganyika until 1966 and s.
10 thereof is in pari material with our s. 8. It is therefore not only in courtesy but also in
common sense that I consider myself entitled to rely on these decisions. In so doing, I
hold that the provisions of s. 8 our Code are mandatory and provide no room for
discretion in circumstances where it is evocable.

It is evocable in the instant case. Moreover, there is no doubt that the final decision in the
pending appeal would operate as res judioatra in the instant petition. The question is not
whether I am in a position to devide the matter ahead of the Court of Appeal; courts of
law are not racecourses. The point is that I am bound to stop in my tracks and let the
previous suit proceed to finality because the decision on the matter in issue would operate
as res judicate on the same matter in the suit before me. I will therefore stay the desion
the on the second issue until the outcome of Civil Appeal No. 24 of 1994.

In the third issue the Court is invited to pronounce on the constitutionality of ss. 5
(2), 13, 25, 37 – 47 of the Newspapers Act, 1976 and para. 12 of G.N . No 166 of 1977. I
have two observations to make in this connection. First, it must be realized that the
constitutionality of a provision or statute is not found in what could happen in its
operation but in what it actually provides for.

Where a provision is reasonable and valid the more possibility of its being abused in
actual operation will not make it invalid Collector of Customer (Madras) v. N.S. Chetty.
AIR 1962 SC 316. It seems to me, with respect, that much of what was said against the
above provisions reflected generally on what could happed in their operation rather than
on what they actually provided for. I was generally referred to the decision of the Court
of Appeal in Kukutia ale Pumbum v. Attorney General, Civil Appeal No. 32 of 1992
(unreported),but I think that case covers a different situation – the situation where a
person was deprived of his right to sue unless he was permitted to do so by the defendant
( the Government ). The provisions complained of however, are administrative and
implementational and their constitutionality can only be challenged if they were no
within the power of the Legislature to enact them.

Secondly, and most importantly, have unfortunately come to doubt the

petitioner’s standing in this issue. As stated before, our Constitution confers a double
capacity on every person – his personal and his community capacities. Now, in what
capacity did the petitioner take up these provisions? It cannot be in his personal capacity
because there is nothing in the provisions or any of them which is shown to have

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contravenes, is contravening or is likely to contravene his right to receive or impart
information.

The contravention has to be read in the provisions themselves. It transpires that the
petitioner’s complaint is in fact founded on the banning of the “Michapo” and “Cheka”
newspapers vide Government Notice No. 8 if 1993. That is improper. The use or misuse
of the powers granted y s. 25 the relevant provision in that connection has nothing to do
with the validity of that provision as such.

What would be relevant is whether Parliament had no power to grant those powers. As
for the misfortunes of “Michapo” and “Cheka” the doors were open for the option of
judicial review but it seems better option were found. Can we alternatively say that this
issue falls under public interest litigation? I don’t think so either.

As seen before, public interest litigation is litigation in the interest of the public. In other
words, the general public, or section thereof, must be seen to be aggrieved by the state of
the law and to be desirous of redress.

There could probably e provisions in the Newspaper Act one could consider oppressive,
unreasonable and even unconstitutional, but that is beside the point, the point is that there
is no evidence of public agitation against that law. And by “public” I do not mean merely
newspaper editors but the Tanzania public generally.

Laconically, whatever ills this law be identified with appear to be overshadowed by the
unprecedented upsurge of private newspapers in recent years. As stated in Sanjeey Coke
manufacturing Co v. Phaant Coking Coal Ltd. AIR 1983 SC 239, court are not authorized
to make disembodied pronouncements on serious an cacudy issues of constitutional
policy without battle lines being properly drawn. Judicial pronouncements cannot be
immaculate local conceptions, it is but right that no important point of law of could be
decided without a proper issue between parties properly in ranged on either side and a
crossing of the swords.
It is inexpedient for the Court to dolve into problems which do not arise and express
opinion thereon. In the premises I decline to pronounce on the third issue.

The fourth issue brings us to the provisions of the Police Force Ordinance and the
Political Act touching on assemblies and processions. Under s. 40 of the former a permit
is necessary to organize an assembly or procession in a public place.

The permit is grantable by the District Commissioner. Similarly, political parties require
a permit from the District Commissioner to hold public meetings pursuant to the
provisions of s. 11 (1) of the Political Parties Act. Section 41 of the Ordinance empowers
a police officer above the rank of inspector or any magistrate to stop or prevent any
assembly or procession if the holding or continuance of it “is imminently likely to cause a
breach of the peace, or to prejudice the public safety…” The police officer or magistrate
may therefore give orders, including orders for the dispersal of the assembly or
procession. Section 42 defined what constitutes an unlawful assembly or procession,

216
namely, an assembly or procession not authorized by a permit, where one is required, or
one held in contravention of the conditions there or in disregard of orders by the police or
magistrate. Section 43 is the penal provision or disobediences, etc.

These provisions sect ss. 41, 42 and 43, are imported into the Political Parties Act vide s.
11 (2) thereof. It was argued for the petitioner that these provisions are inconsistent with
the freedom of peaceful assembly and public expression which is guaranteed under Art.
20 (1). Mr. Mussa, on the other hand, thought they were all supervisory in character,
intended to ensure peace and good order, to the end that the rights and freedoms may be
better enjoyed.

A better approach to these provisions is to distinguish their function. First of all,

there is the requirement for a permit grantable by the District Commissioner and this
falls under s. 40 of the Guidance under 18(1) of the Act, Next there is control of the
meetings and processions and this falls under s.41, the exercise of that power being
vested in the police and the magistracy. Finally, we have the criminal law provisions is
ss. 42 and 42. In considering the question of constitutionality these distinctions have to e
kept in mind.

I draw these distinctions also because not all meetings or processions require a permit,
yet all attract police and magisterial supervision. By virtue of G.N. No 169 of 1958,
religious processions as well as religious, social, educational, entertainment and sporting
assemblies do not require a permit; by virtue of G.N. No 98 of 1960 assemblies convened
by rural local authorities within the areas of their jurisdiction do not require a permit and
by virtue G.N No. 237 of 1962 assemblies convened by Municipal or Town Councils
within the areas of their jurisdiction do not require permits either; but all these events
attract police and registries supervision. Let us now look at the character of the three
devising in relation to the constitution.

Section 40(2) provides in part, of (2) Any person who is desirous of convening,
collecting, forming or organizing any assembly or procession in any public place, shall
first make application for a permit in that behalf to the District Commissioner…and if the
District Commissioner is satisfied, having regard to all the circumstances,. that the
assembly or procession is not likely to cause a breach of the peace…he shall, subject to
the provisions of sub- section (3), issue a permit…

Section 11(1) of the Political Parties Act is to the same effect although it does not
expressly set out all that is in the above provision. These provisions may then e
contracted with the provisions. These provisions may then be contrasted with the
provisions of Art 20 (1) which states in part:-

(1) Subject to the laws of the land, every person is entitled to freedom of peaceful
assembly, association and public expression, that is to say, the right to assemble freely
and peaceably.

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 The Constitution is basic or paramount law of the land and cannot be overridden
by any other law. Where, as in the above provision, the enjoyment of a constitutional
right is “subject to the laws of the land,” the necessary implication is that those laws must
be lawful laws. A law which seeks to make the exercise of those rights subject to the
permission of another person cannot be consistent with the express provisions of the
Constitution for it makes the exercise illusory. In this class are s. 40 of the Police Force
Ordinance and s. 11 (1) of the Political Parties Act. Both provision hijack the right to
peaceful assembly and precession guaranteed under the Constitution and place it under
the personal disposition of the District Commissioner.

It is a right which cannot be enjoyed unless the District Commissioner permits. That is
precisely the position that was encountered in ole Pumbun where the right to sue the
Government could not be exercised says with the permission of the Government. The
Court of Appeal was prompted to say:-

…a law which seeks to limit or derogate from the basic rights of the individual on
grounds of public interest will be saved by Articles 30 (2) of the Constitution only if it
satisfies two essential requirements: First such a law must be lawful in the sense that it is
not arbitrary.

It should make adequate safeguards against arbitrary decision, and provide effective
controls against abuse by those in authority when using the law. Secondly, the limitation
imposed by such law must not be more than is reasonably necessary to achieve the
legitimate object. This is what is also known as the principle of proportionality ..if the
law…does not meet both requirements, such law is not saved by Article 30 (2) of the
Constitution, it is null and void.

Section 40 does not meet thee requirements. It is in the absolute discretion of the District
Commissioner to determine the circumstances conducive to the organization of an
assembly or procession; there is no adequate or any safeguards against arbitrary exercise
of that discretion and there is no mechanism for challenging his decisions, except
probably by way of judicial review which is tortuous and unbeneficial for the purpose of
assemblies and processions.

I have easily come to the conclusion that the requirement for a permit infringes the
freedom of peaceful assembly and procession and is therefore unconstitutional. It is not
irrelevant to add, either, that in the Tanzania context that freedom is rendered the more
illusory by the stark truth that the power to grant permits is vested in cadres of the ruling
party.

Coming to s. 41, I am of the view that the provision does not operate to take away
the right to held assemblies or processions. If only empowers the police and the
magistracy to step in for the preservation of peace and order. The provision is thus saved
by Art. 3 (2) (b), it being in furtherance of the State’s normal functions of ensuring public
safety and public order and is reasonably justifiable in democratic society. As rightly
remarked by Mr. Mussa the enjoyment of basic human rights presupposes the existence

218
of law and order. I provision like s. 41 is therefore a necessary concomitant to the
realization of these rights. Moreover, there is inherent in the provision a safeguard against
arbitrary use.

It comes into play when the holdings or continuance of an assembly or procession “is
permanently likely to cause a breach of the peace, or to prejudice the public safety or the
maintenance of public order and to be used for any unlawful purpose, “and therefore
meets what is termed the” clear and present danger test. In Muhammad Nawaz Sharif
cited earlier, Saleem Akhtar, J. said, at pp. 832 -833:-

Diary restriction (on basic rights) must pass the test of reasonableness and averriding
public interest. Restriction can be imposed and freedom may be curtailed provided it is
justified by the “clear and present danger” test enunciated in Saia v. New York (1948)
334 US 558 that the substantive evil must be extremely serious and the degree of
imminence extremely high.

Section 41, in my view, is conditioned on a clear and present danger where the
substantive evil is extremely serious and the degree of imminence extremely high. A
situation befitting the application of the provision can be found in the Guyanese case of
C.R Ramson v. Lloyed Barker and the Attorney General (1983) 9 CLB 1211. That case
arose from the dispersal of a political meeting by the police. The plaintiff, in Attorney –
at – law, was standing near his motor car parked by the roadside discussing with a
colleague the methods used by the police to disperse the crowd.

A policeman came up, held the plaintiff by his arm and asked him what he was doing
there, and was told “that is my business.” Other policemen came up and surrounded the
plaintiff, who was then jabbed several times in the ribs with a basin by another policeman
who ordered him into the car. The plaintiff and his colleague then got into the car
unwillingly and drove away.

The plaintiff later brought action alleging, inter alia, an infringement of his rights to
freedom of assembly, expression and movement. It was held by the Court of Appeal that
there was no infringement of the constitutional right to the freedom of assembly,
expression or movement as the action of the police was not directed towards a hindrance
or depravation of these constitutional freedoms.

These factors apart, it is equally apparent that the petitioner admits the legitimate
rule of the police at assemblies and processions although, somehow, he does not realize
that this role is specially authorized by court Para 19 (h) of the petition states in part;
The court should also declare that a citizen has right to convene a peaceful assembly of
public rally and the right to make a peaceful demonstration or procession without a
permit from anybody except that he should just inform the police before doing so
(my emphasis).

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 I would not wish to believe that by this prayer it is intended that the police should
attend assemblies and precessions to applaud the actors and fold their arms in the face of
an imminent break down in law and order. I am satisfied that s. 41 is a valid provision.

Finally, ss. 42 and 43. The former defines an unlawful assembly or procession and
the latter punishes the same, Art. 30 (2) (a) and (b) of the constitution empowers the
Legislature to enact legislation for ensuring that the rights and freedoms of others or the
public interest are not prejudiced by the misuse of the individual rights and freedoms and
for ensuring public safety and public order.

This power, in my vies, includes the power to prescribe penalties for criminal breaches.
In other words, the penalties are necessarily concomitant to the effective exercise of
police and magisterial powers under the other provisions. I consider the provisions valid
as well.

As this stage I will proceed to show the significance of the distinction I have been
making. I have held that the requirement for a permit is unconstitutional but not the
police – magisterial and penal role.

The crucial question now is whether these aspects cab be severed. Severance is provided
for under Art. 64(5) which states that “any other law inconsistent with the provisions of
the Constitution…shall, to the extent of the inconsistency, be void, “It is therefore
established that where the valid portion is severable from the rest, that portion will be
maintained provided it is sufficient to carry out the purpose of the Act. Delivering the
judgment of the Privacy Council in A.G of Alberta v. A.G of Canada (1947) AC 503,516,
Viscount Simon said:

The real question is whether what remain is so inextricably bound up with the part
declared invalid that what remains cannot independently survive, or, as it has sometimes
been put, whether on a fair review of the whole matter it can be assumed that the
Legislature would have enacted what survives without enacting the part that is ultra vires
at all.

I am in no doubt whatsoever that the permit aspect cab be expunged and expelled
from the law without prejudicing the rest. This is illustrated by the fact that the
supervisory aspects already operate independently here a permit is not required. It is
evident, therefore, that the Legislature could have enacted the supervisory aspects
without enacting the permit is unconstitutional and void, I direct the provisions of s. 40
of the Police Force Ordinance and s. 11(1) (a) of the Political Parties Act, and all
provisions relating thereto and connected therewith, shall henceforth be read as if all
reference to a permit were removed. It follows that from this comment is hall be lawful
for nay person or body to convene, collect, form or organize and address an assembly or
procession in any public place without first having to obtain a permit from the District
Commissioner.

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Until the Legislature makes appropriate arrangements for this purpose, it shall be
sufficient for a notice of such assembly or procession to be lodged with the police, being
delivered a copy to the District Commissioner for his information.

In reaching this decision, I am certainly aware of the decision cited to me in C.

Mtikila & Ors V.R. Criminal Appeal NO. 90 of 1992 (Dodoma Registry – Unreported).
In that case the present petitioner and others were charged before the District Court of
Dodoma with three counts, the first of which alleged “refusing to desist from convening a
meeting or assembly after being warned not to do so by police officers contrary to
sections 41 and 42 of the Police Force Ordinance, Cap. 322. They were convicted and
fined 500/= each.

They appealed to this Court and it was contended, inter alia, that s. 41 was
unconstitutional. Mwalusanya, J. agreed and said; “I construe section 41 of the Police
Force Ordinance to be void. From now onwards this section is detected from the statute
Book.” I am given to understand that an appeal has been lodged against that decision.

The fact that an appeal is pending naturally restrains me in my comments on that

decisions, yet I cannot avoid to show, albeit briefly, why I find that decision difficult to
go by. The learned judge did not merely hold s. 41 to be unconstitutional; he went further
and held the entire trial to be a nullity. He said between pp. 23 and 25 of his judgment:

In my judgment I find that the denial by the trial magistrate to have the appellants have
access to the documents they – required for their defense was a fundamental defect
which is not curable…The error is so fundamental that it has rendered the whole trial a
nullity.

This is significant indeed. It is established practice that where a matter can be

disposed of without recourse to the Constitution the Constitution should not be involved
at all. The Court will pronounce on the constitutionality of a statute only when it is
necessary for the decision of the case to do so; Wahid Munwar Khan v. State AIR 1956
llyd. 22 In that case a passage from Coday’s Treatise on Constitutional Limitations was
also cited in these terms:

In any case where a constitutional question is raised, though it may be

legitimately presented by the record, yet if the record presents some other clear ground
the court may rest its judgment on that ground alone., if the other questions are
immaterial having regard to the view taken by the court.

The decreme Court of Zimbabwe expressed the same view in Minister of Home
Affairs v. Kickle & Ors (1985) LRC (Const) 755 where Georges, C.J said (at p. 758).

Courts will not normally consider a constitutional question unless the existence of a
remedy depends upon it; if a remedy is available to an applicant under some other
legislative provision or on some other basis, whether legal or factual, a court will usually

221
decline to determine whether there has been, in addition, a breach of the Declaration of
Rights.

And here at home the Court of Appeal had this to say in attorney General v. W.K
Dutambala, Criminal Appeal NO 37 of 1991 (unreported)

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 serious occasions.

The court continued:

…. It is not desirable to reach a situation where we have been disposed of on the

ground that the trial was a nullity without going into the constitutionality of s. 40. It is
indeed curious that a trial which was adjudged a nullity could still provide the basis for
striking down s. 41. On these grounds and others, I was unable to benefit from the
decision of my learned brother.

The fifth issue takes us back to the amendments to the Constitution and elsewhere
which make membership of and sponsorship by a political party mandatory for a person
to contest presidential, parliamentary or local authority elections. I held that the
amendments was constitutionally valid but I reserved by position on their practical
implications until this stage. It is essential for the purpose of the present exercise, and for
case of reference, to set out side by side the provisions of Art. 21 (1), Art. 20 (4) and Art.
21 (1) reads as follows:

(1) Every citizen of the United Republic is entitled to take part in the government
of the country, either directly or through freely chosen representatives, in accordance
with procedure provided by or under the law.

Art . 20 (4) states ( my translation);

(4) Without prejudice to the relevant laws, no person shall be compelled to belong
to any party or organization, or for any political party to be refused registration by reason
only of its ideology or philosophy.

And Art. 39 (o) states ( my translation):

39. No person shall be eligible for election to the office of President of the United
Republic unless he –
(a) …; (b) …;
© is a member of and sponsored by a political party.

As generally understood the citizen’s right to participate in the government of his

country implies three consideration; the right to the franchise, meaning the right to elect

222
his representatives; the right to represent, meaning the right to be elected to law making
bodies; and the right to be chosen to a political office.

These three rights are, in my vies, epitomized and the provisions of Art, 21(1), subject, of
course, to the qualifications which expediency may dictate for the exercise of these
rights, e.g literacy and age. But while accepting the relevancy of such qualifications it has
to be admitted in the first place that the concept of basic human rights has a utilitarian
aspect to it: to whom are these rights to be usefull? Harold Laski ( A Grammar of
Politics, 1967: 92 ) respond thus:

There is only one possible answer. In any state the demands of each citizen for the
fulfillment of his best self must be taken as of equal worth; and the utility of a right is
therefore its value to all the members of the state. The rights, or instance, of freedom of
speech does not mean for those in authority. Or for members of some special church or
class. Freedom of speech is a right either equally applicable to all citizens without
distinction or not applicable at all.

These remarks are no more applicable in political philosophy than they are in human
rights jurisprudence. The matter is brought into focus if we substitute the right to
participate in the government of one’s country for the freedom of speech.

The proposition would then be that the right to participate in the government of one’s
country is not reserved for those in authority, or for members of some special class or
groups, but it is a right either equally applicable to all citizens without distinction or not
applicable at all.

This utilitarian factor is writ large in Art. 21 (1) for it speeks of “every citizen” being
entitled to participate in the government of his country. It could easily have said “Every
member of a political party…, “but it did not, and this could not have been without cause.
It will be recalled, indeed, that the provision existed in its present terms ever since the
one party era. At that time all political activity had to be conducted under the auspices
and control of the Chama cha Mapinduzi, and it could have been argued that this left no
room for independent candidates. It is certainly this notion which was at the base of Mr.
Mussa’s submission to the effect that the amendments did not take away the right for
independent candidates for such rights never existed before.
The argument is no doubt attractive, but, at least with effect from July 1, 1992, Art 21 (1)
has to be read in a multi – party and non – party context.

That is what I can rather from Art. 20 (4). – previously Art. 20 (2) – which was
deliberately rephrased to accommodate both situations. It is illogical for a law to provide
that no person shall be compelled to belong to a political party and in the sate breath to
provide that no person shall run for office except through a political party.

If it were the intention of the Legislature to exclude non- party citizens from
participating in the government of their county, it could easily have done so vide the
same Eighth Constitutional Amendment Act by receiving the generality in Art. 21 (1).

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 The position as I see it, is now this; By virtue of Art. 21 (1) every citizen is
entitled to participate in the government of the country, and by virtue of the provisions of
Art. 20 (4) such citizen does not have to be a member of any political party; yet by virtue
of Art.
39( c ) and others to that effect, no citizen can run or office unless he is a member of and
sponsored by a political party. This is intriguing, I am aware that the exercise of the right
under Art. 21 (1) has to be “in accordance with procedure provided by or under the law, “
but I think that while participation through a political party is a procedure, the exercise of
the right of participation through a political party only is not a procedure but an issue of
substance.

The message is: either you belong to a political party or you have no right to participate.
There is additionally the dimension of free elections alluded to in Art. 21().
A citizen may participate in the government “either directly or through freely chosen
representatives. “ It is contrary to every notion of free elections if non – party citizens are
compelled to vote for party candidates. In the midst of this unusual dilemma I had to turn
to the canons of statutory and constitutional interpretation.

When the framers of the Constitution declared the fundamental rights in Part III
of Chapter one thereof, they did not do so in vain, it must have been with the intention
that these rights should be exercisable. It is therefore established that the provisions of
the Constitution should always be given a generous and purposive construction. In A.G
of Gambia v. Jobe (1985) LRC (Const) 556, 565, Lord Diplock said:

A constitution and in particular that part of it which protects and entrenches fundamental
rights and freedoms to which all persons in the State are to be entitled, is to be given a
generous and purposive construction.

This echoes what was said earlier in British Coal Corporation v. The King (1935) AC
500, 518, to the effect that in interpreting a constituent or organic state of the construction
most beneficial to widest possible amplitude of its power want be adopted. And not much
later, in James v. Commonwealth of Australia ( 195) AC 578, 614 Lord Wright, M.R
said:

It is true that a Constitution must not be construed in any narrow and pedantio sense. The
words used are necessarily general, and their full import and true meaning can often be
appreciated when considered, as the years go on, in relative to the vicissitudes of fact
which from time to time emerge. It is not that the meaning of the word changes, but the
changing circumstances illustrate and illuminate the full import of the meaning.

This approach is directed principally at resolving difficulties which may be

inherent in a single provision. The strategy, according to these authorities, is to approach
the provision generously and liberally particularly where it enacts a fundamental right.
The case before me takes us a stage further. What happens when a provision of the
constitution enacting a fundamental right appears to be in conflict with another provision

224
in the Constitution? In that case the principle of harmonization has to be called in aid.
The principle holds that the entire Constitution has to be read as an integrated whole, and
no one particular provision destroying the other but each sustaining the other; see
Muhammad Nawaz Sharif (above), p. 601.

If the balancing act should succeed, the Court is enjoined to give effect to all the
contending provisions. Otherwise, the court is enjoined to incline to the realization of the
fundamental rights and may for that purpose disregard even the clear words of a
provisions if their application would result on gross injustice, CHITALEY, p. 716,
renders the position thus;

….it must be remembered that the operation of any fundamental right may be
excluded by any other Article of the constitution or may be subject to an exception laid
down in some other Article. In such cases it is the duty of the Court to construe the
different Articles in the Constitution in such a way as to harmonies them and try to give
effect to all the Articles as far as possible and it is only if such reconciliation is not
possible, one of the conflicting Articles will have to yield to the other.

These proposition are by no means novel but are well known in common law
jurisdictions. They rest, above all, on the realization that it is the fundamental might
which are fundamental and not the restrictions. In the case of Sturage v. Crownnshield
(1819) 4 Law Ed. 529, 550, Chief Justice Marshall of the Supreme Court of the United
States said:

Although the spirit of an instrument, especially a Constitution, is to the respected not the
less than its letter, yet the spirit is to be collected chiefly from its words. It would be
dangerous in the extreme to infer from extrinsic circumstances that a case for which the
words of an instrument expressly provide shall be exempt from its operation.

Where words conflict with each other, where the different clauses of an instrument bear
upon each other and would be inconsistent unless the natural and common words are
varied, construction becomes necessary, and a departure from the obvious meaning of
words is justifiable.

But if in any case the plain meaning of a provision, not contradicted by any other
provision in the same instrument is to be disregarded, because we believe the framers of
that instrument could, because we believe the framers of that instrument could not intend.
What they say, it must be one in which the absurdity and injustice of applying the
provision to the case would be so monstrous that all mankind would, without hesitation,
unite in rejecting the application.

In the instant petition, the following factors emerge. First, Art. 39( c) and allied
amendments are restrictions on the exercise of a fundamental right and not fundamental
in themselves. It is the fundamental rights, but not their restrictions, that this Court is
enjoined to guard jealously. Secondly, the scheme of our Constitution contemplates the

225
full exercise of the fundamental rights enacted therein save as they may be limited in
terms of the provisions of Art. 30(2) and Art. 31(1).

Although the amendments pass the test of validity by virtue of the very wide definition
of “alteration” in Art. 30(2). Thirdly, the literal application of the amendments could lead
to monstrous and nationally injurious results. It is believed that there are between three
and four million people in this country who subscribe to some political party, leaving
well over twenty millions a free decision in the government of their country is unjust,
monstrous and potentially calamitous. Fourth, it must be said that any talk of “parties” at
this juncture in the country’s history cannot be serious. Apart from Chama cha Mapinzuzi
whose presence is all pervasive, the rest exist more in more than is practice.

The amendments are therefore capable of being abused to confine the right of governing
into the hands of members of a class and to render illusory the emergence of a truly
democratic society. I do not wish to believe that was the intention of the Legislature.
Finally, Art 21(1) can in fact, operate alongside Art. 39 and allied amendments strange in
having party and independent candidates in any election.

For everything I have endeavoured to state and notwith- standing the exclusionary
elements to that effect in Articles, 39, 67 and 77 of the Constitution as well as s. 39 of the
Local Authorities (Elections). Act 1979, I declare and direct that it shall be lawful for
independent candidates, along with candidates sponsored by political parties, to contest
presidential, parliamentary and local council elections. This will not apply to the council
elections due in a few days.

We now come to the sixth and final issue. A declaration is sought to the effect
that it is unconstitutional for the President to appoint Zanzibaris to head non – union
ministries and departments on the Mainland.

This matter invites a bit of the union’s history. When Tanganyika and Zanzibar united in
1964 the Constitution of the former was adopted as the anterim Constitution of the United
Republic, modified as to provide for a separate government for Zanzibar in matters other
than those reserved to the union Government. At the same time the Government of
Tanzania was abolished. The union operated under interim constitutions until the
promulgation of the 1977 Constitution.

Article 4(3) of the Constitution provides for the divisions of governmental

functions on the basis of union end non- union matters. Authority in respect of all union
matters as well as non – union matters in and for the Mainland is vested in the Union
Government by Art. 34(1).

Likewise all executive power of the United Republic with respect to union matters and
with respect to non – union matters in and for the Mainland is vested in the President. He
may exercise that power either directly or through delegation to other persons holding
office in the services of the United Republic. The President is also empowered to
constitute and abolish officers and, pursuant to the provisions of Art. 36 (2), he has power

226
to appoint persons to offices in the public services of the United Republic subject to the
other provisions of the Constitution, In the exercise of the functions of his office the
President has unfettred discretion apart from complying with the provisions of the
Constitution and the law. Article 55 (1) additionally empowers the President to appoint
Ministers who “shall be responsible for such offices as the President may from time to
time …establish”.

He also has power to appoint Region Commissioners for regions in the Mainland.
Zanzibar retains the internal autonomy in respect of non- union matters falling on that
side.

It was argued by Mr. Mbezi that the structure of the Constitution points to a dual
role for the Union Government, i.e as a Government responsible for Union Matters and as
a Government responsible for non- Union Matters for and in the Mainland. He also
submitted that the division of union form non- union matters could not have been done
without a purpose. In his the fact that they are constitutionally placed under the Union
Government does not amount to their unionization.

He therefore thinks that the appointment of Zanzibaris to run these matters offends Art.
4(3). Mr. Mussa responded by pointing out that no provision in the Constitution
compelled the President not to appoint Zanzibar to such position and that it would
actually be discriminatory if he did not do so. In his view the exercise of the power of
appointment was a matter of policy but not one founded on the Constitution.

The issue of Zanzibar in “Mainland” ministries is presently a matter of

considerable interest, and seems to derive more drive from the polarized political
situation which culminated in the ill-fated parliamentary notion for a government of
Tanganyika. But sentiments apart, one would certainly with to know the juridical position
of non – union matters in and for the Mainland.

The dualism factor asserted by Mr. Mbezi was recognized and articulated by the Court of
Appeal in Haji v. Nungu & Anar (1987) LRC (Coast) 224 where Chief Justice Nyalali
further stated ( at 231) that in the being structure of the Constitution there are “matters
which concern exclusively that area which before the Union constituted what was then
known as Tanganyika…” He went on to say that “These matters under the scheme of the
Constitution fall under the exclusive domain of the Government of the United Republic.

The Revolutionary Government of Zanzibar has no jurisdiction over these matters.” Of

course that case was concerned with a different matter – the jurisdiction of the High
Court of the United Republic in election petitions – yet, even with that reference to the
exclusive domain of the Government of the United Republic over Tanganyika matter, I
cannot read a suggestion o the unionization of those matters. There are various types of
constitutions which are classified as federal and ours court carry that appellation in the
absence of a standard or ideal type of a federal constitution. It is not uncommon for such
constitutions to enumerate the areas reserved to the federate, leaving the rest to the
federal or central government.

227
The founders of our Union could easily have done that. They could have enumerate the
spheres in which the Zanzibar.

Government would exercise power and leave the rest to the Union Government. In that
case the philosophy of changu, changu, changu, chetu,(mine is mine; yours is ours)
would have made considerable sense, for everything in and for the Mainland would have
then been a union matter. But that was carefully avoided. Instead the Constitution
enumerates union matters only and expressly declares the rest to be non – union; and this
is so, according to Art 4(3), “For the purpose of the more efficient discharge of public
affairs…and for the effective division of function in relation to those affairs…”I think,
with respect, there is reason to insist on the significance of the division. It is occurs to me,
that the fact of the on-union matters on the Mainland side being under the Union
Government does not derogate from their character, They remain “matter which concern
exclusively that area which before the Union constituted what was then known as
Tanganyika, and is presently referred to under the constitution as Tanzania Mainland, “to
quote the Chief Justice again. And since the Constitution also recognizes the necessity
“for the effective division of function” in the discharge of public affairs in the United
Republic, the appointment of Zanzibaris to positions of authority in non – union matters
in the Mainland could have the effect of blurring that division.

That said, however, it is difficult to draw the inference of unconstitutionality,

which the Court was called upon to draw, in relation to those appointments. The
provisions to which I have referred, notably Art. 36(2) and Art. 55(1), do not limit the
President in his choice of officers or Ministers or in their disposition.

The furthest we can go it to fall back to the words “subject to the other provisions of this
Constitution” in Art. 36 (2) and this would lead to the divisions of union and non – union
matters in Art. 4(3). It can then be suggested that t keep the division effective there is an
implied invitation to keep Tanganyika matters Tanganyikan. A breach of the Constition,
however, is such a grave and seriours affair that it cannot be arrived at by more
inferences, however at attractive, and I apprehend that this would require proof beyond
reasonable doubt. I have therefore not found myself in a position to make the declaration
sought and I demist from doing so.

Finally, each party prayed for costs, I cannot find my way to award any. In the
first place the record suggests that this was a legal aid case and I don’t quite see how the
question on costs. Additionally, I think this was a balanced case where both sides won
and lost. The parties will therefore bear their respective costs.

(E.S.K RUGAKINGIRA)

JUDGE

DODOMA
24/10/1994

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I hereby certify that this is a true and correct copy of the original.

DISTRICT REGISTRAR

DODOMA

27/10/1994

4. PROCEDURE

1. American Cyanamid v Ethicon Ltd (1975) 1 AIIE. R 504

2. Andrew W.Nkuzi v Tanzania Sisal Authotity, Minc. Civ Cause No. 3 of 1994, HC
at Dar – es – Salaam.
3. Assistant Imports Controller v Magnum Agencies’ Civ Appeal No. 20 of 1990.
4. Farmers Bus Service v. Transport Licencing Appeals Tribunal (C.A) (1959) E. A
779
5. Golcher v General Manager of Morogoro Canvas Mill 1987 TLR 78 (HC)
6. Josiah Barthazar Baizi & Others v Attorney General Civ. Cause no. 39 of 1997
7. Kahama Goldmines v Minister for Energy, Misc. Civ Cause 127 of 1989, HC at
Dar es Salaam.
8. Mecaina Establishments v Commissioner for Income Tax No. 14 of 1995, (CA)
9. Mtikila & another v AG & another, Civ. Appeal No. 28 of 1995.
10. NHC v Tanzania Shoe co & 28 others, Civ. Appeal No. 40 of 1994 (CA)
11. Peter Ng’omango v Mwangwa & AG, Civil case No. 22 of 1992, HC at Dodoma
12. Pumbun & Anor. V AG, Civil Appeal No. 32 of 1992.

THE UNITED REPUBLIC OF TANZANIA

229
 IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM

MAIN REGISTRY

MINC..CIVIL CAUSE NO ……………… 39 OF 97

JOSIAHN BARTHAZAR BAIZI & 138 OTHERS……….. APPLICANTS

VERSUS

ATTORNEY GENERAL & OTHERS……………….. RESPONDENTS

RULLING

MACKANJA. J.
Josiah Balthazar Baisi and 137 others have lodged a
chamber application in which they pray for leave to apply for the prerogative orders of
prohition and mandamus. The application is supported by the affidavit of the said Josiah
Batlthaza Baisi, to whom I will henceforth refer alternately by name and as the first
applicant.

The affidavil supporting the application contains sixteen paragraphs. The first two
are devoted to lay the foundation for the communality of interest which has galvanized
the applicants to act in unison. Indeed it also appears that it is that common interest, if it
exists at all, they seek to protect. It is in that behalf that Josiah Balthazar Baisi has been
authorized by his co – applicants to swear the affidavit supporting the application.

He swears in paragraph two of that affidavit that lie is the chairman of the COMMITTEE
AGAINST PROPERTY DEPRIVATION WITHOUT FULL AND FAIR
COMPENSATION THROUGH DANISH “AID” TO TANZANIA.

It seems as he swears, that the first application is conversant with the facts to
which he responded by reason of the readership position he enjoys in that committee.
3,4,5,6, and 7 of the first applicant’s affidavit contain testimony relating to his own
interest in the suit land. He swears that he owned his own interest in the suit land.

He swears that he has owned his part of the suit land since 1950 and it is a deemed right
of occupancy known as Plot No. 8 Block C. Kimara Dar es Salaam. His parcel of land,
which lies between O and mile is surveyed and is within a distance of seventy five (75)
feet from the centre of the Morogoro high way, document relating to the survey of that
parcel of land are Annexture IA and IB to the applicant’s affidavit. Point “O” referred to
in paragraph 5 is the Askari Statue or monument in the City of Dar es Salaam.

230
 It is sworn further that in the course of his apparently undisturbed possession the
applicant developed the land by erecting both commercial and residential premises, and
that he executed those works without warning or objection from all or any of the
respondents.

Paragraphs 9, and 10 specifically relate to matters of a general nature concerning

interest in the suit land that the other applicants allege they enjoy severally. For instance,
it is sworn in paragraph 8 that the majority of the parcels of land that are occupied by the
other applicants lie between 6.22 and 23.12 miles from the Askari statue and within a
distance of between seventy – five (75) feet and four hundred (400) feet from the centre
of the Morogoro highway. According to paragraphs 9 and 10 of the affidavit the bulk of
the lands occupancy, and that the rest of those lands are held under rights of occupancy
granted under the Land Ordinance Cap. 113.

In common with the first applicant’s own land, it is sworn that the other parcels of land
have been developed without let or hindrance from anyone, with residential and
commercial buildings and farms.

The peaceful possession of the suit parcels of land changed into uncertainly when
sometime in 1991 the second respondent and/or the third respondent marked with an “X”
all buildings then standing on the suit land, denoting Government intention to demolish
them. It seems that it was not desired to effect that intention immediately.

For it was on Friday, the 11th day of July, this year that the Deputy Minister of Works
announced Government resolve to effect that intention when he made a statement in the
National Assembly which according to paragraph 12 of the affidavit contained the
following directives, that is to say:-

(i) That Government intends to undertake extensive expansion of the Morogoro

Road between Ubungo and Kimara/Temboni.
(ii) That the Ministry of Works required the applications to demolish, at their own
cost, their houses, buildings and other structures before 1st September 1997.
(iii) That the Ministry of Works would itself carry out the demolition after 1st
September, 1997.
(iv) That no compensation would be paid to the applicants; and
(v) That the applicants would bear the cost o such demolition by the Ministry.

It is sworn in paragraph 13 of the supporting affidavit that on diverse dates as reported in

the print media., annextures marked IIA, IIB, IIC, IID, IIE, IIF, IIG, and IIH, that the
Deputy Minister of Works and on behalf of the second and third respondents, repeatedly

231
stated that the applicants would not be paid compensation upon the demolition of their
buildings and other structures.

What is more, as sworn in paragraph 15, the respondents have arrogantly ignored the
applicants’ protest. Copy of the letter of protests is annexture III to the affidavit. The
applicants are now advised by their advocates that the actions threatened by the second
and the third respondents are illegall to the extent that they contravene provisions of the
highways Ordinance, Cap. 167, the land Acquisition Act, 1967 and the Constitution of
the United Republic. It is in that connection that Professor G. Mgongo – Fimbo, the
applicants learned counsel, has taken out a chamber summons on their behalf that spells
out the reliefs they seek.

The respondents have opposed the application, first by notice of preliminary

objection, secondly, by counter affidavit. There are four points of preliminary objection.
First, that the affidavit in support of the application does not give a full and frank
disclosure on the following facts:-

(a) names of applicants who hold title deeds or describe the propeties of each in a
sufficient extent as to enable the respondents to prepare their defence;
(b) the circumstances leading each of the applications to the occupation of the land
within the highway corridor and reserve in view of the fact that the occupiers
thereof were adequately compensated in the 1970;
(c) whether or not the applicants had been issued with building permits for
development of permanent structures thereof;
(d) the whole of Dar es Salaam within which the disputed area is located has been
declared a development area and as such, deemed rights of occupancy have been
extinguished.

The first preliminary objection concludes that the affidavit in support of the application
unfairly prejudices the respondents to making their defence and, to that extent, it should
be struck out

Secondly, it is averred by the respondents that there are applicants who do not
own do not own any property within the Highway corridor and road reserve, and
consequently, that they have no standing to bring the application and that their inclusion
is an abuse of the court process.

Thirdly, that this is an unfit case to be determined by way o judicial review. That the
respondents have noticed that some of the certificates of occupancy issued to some of the
applicants are not genuine.

Fourthly, in the alternative and without prejudice to the first three preliminary
points of objection, the respondents pray the the applicants be ordered to provide security
to cushion the respondents against increased construction costs that will arise out of the
delay in commencing the works due to the applicanats’ objections because on a balance
of convenience the respondents. Are likely to be more adversely affected than the

232
applicants. And if I may say now, all that is contained in the counter affidavit that was
sworn by Humphrey G. Urio, who, for the time being is the Director of Roads in the
Ministry of Works is an elaboration of the preliminary objections put in evidential form.
So I will consider the counter affidavit in tandem with the preliminary objections.

The preliminary objections raise very fundamental points of law. A decision on

them will entail all the this Court is required to do at this preliminary stage of the
proceedings. Necessarily, therefore, such a decision will consider the practice and
procedure that govern an application such as this one. In order to be consistent I will
consider the objections serjatim.

Mr. Werema, learned Senior State Arrorney, who appears for the respondents and
Professor G. Mgongo – Fimbo who advocate for the applicant, are agreed that the
practice and procedure we apply in applications such as this one are identical to that
obtaining in England, especially in terms of Order 53 of the Rules of the Supreme Court
(R. S.C.) Because of the identical nature of these procedures Mr. Werema has invited me
to consider English case the law when deciding this application. Of course I would have
done so even without such an invitation.

It is Mr. Werema’s submission that according to that procedure the affidavit supporting
the application for leave to file an application for prerogative orders must make a full and
frank disclosure of all material particulars in dispute. Failure to do so, he argues, will be
sufficient ground for the dismissal of the application. He has cited once English decision
in support of his submissions; O’Relly and Others v. Mackman and Others, (1983) 2.
A.C. 237. It is his contention that the affidavit of Josiah Balthazar Baisi, the first
applicant, does no meet that rest because when the Dar es Salaam – Morogoro highway
was developed in 1972 all owners of land who were affected were compensated.

It was therefore incumbent upon the applicants to show how they re-occupied an area in
repsopect of which compensation was paid. This failure, according to Mr. Werema,
indicates that the affidavit supporting the application does not contain a full and frank
disclosure of material facts.

Mr. Werama has also pointed out that in a planned area like Dar es Salaam, the
Town and Country Planning Ordinance, Cap. 378 required anyone to obtain a building
permit before he puts up a building. He contents that there is nowhere in the affidavit
supporting the application where it is disclosed that the applicants lawfully constructed
their house and other structures which are the subject of this application.

There is also the question of the deemed rights of occupancy. Mr. Werema
contends that the applicants have failed to make their case in that regard because the
affidavit of the first applicant does not disclose how the purported deemed rights of
occupancy were acquired legally.

233
Indeed, it is learned Senior State Attorney’s submission that the list of applicants includes
names of people who are not within the road corridor. Their names, he says, are listed in
paragraph 6 of their counter affidavit.
According to learned Senior State Attorney, the inclusion of such names should lead to a
finding that the disclosure is not sufficiently frank as the affidavit includes names of
people who are not covered at all.

It would appear from his submissions that Professor Fimbo does not view a frank
disclosure of material facts as a basic consideration which has been contravened by his
client. According to him sections 17A of the Law Reform ( Fatal Accidents and
Miscellanious Provisions) Ordinance, cap 360, has not done away with the preliminary
character of an application such as this one.

He submits that although the Attorney General must now he made a party to these
proceedings, all that is necessary at this sage is for the applicants to establish arguable or
triable issue. He derives support for this proposition from the decision of this Court in
Mecaiana Establishment v. Commissioner of Income Tax and Six Others. Misc. Civ.
Case No. 156 of 1993 has at therefore invited me to allow this application because it has
at least three arguable issues, namely:-

(1) whether the applicants own interests in the suit parcels of land;
(2) whether the applicants have property in the houses, buildings and other
structures within a distance of 400 feet from the centre of Morogoro Road,
and .
(3) whether the applicants or any of them are entitled to compensation or
otherwise for the houses, building and other structures due to be appropriated
for the purpose of the Highways Ordinance.

According to Professor Fimbo evidence that the there are tribal issues includes the
fact that the respondents concede in paragraph 14 of their counter affidavit that
Government has threatened to demolish the applicants’ houses, buildings and
other structures without first paying them full and adequate compensation.
So before me there are two competing propositions.

The one is as submitted by Mr. Werema and the other is as submitted by Professor
Fimbo. I have given a careful consideration to those proposition which I think are
sound. They are worth considering although in saying so I do not intend to say
that those propositions alone, singly or in combination, would be sufficient
ground upon which leave would or would not, be granted. On the other hand, if
taken at face value Mr. Werema’s contention is rather pre – emotive of the
application for the prerogative orders. What he has urged me to accept are matters
the legitimate forum of which would be in an application of the prerogative
orders. As I do not intend to prejudice the case one way or the other, I am
satisfied that for the purposes of the present application the applicants have made
a sufficiently full and frank disclosure.

234
 A part from the applicants obligation to make a full and frank disclosure
of all material facts on which they rely, I accept Mr. Werema’s submission that
uberrima fides, that is the almost good faith, is required. It is, in fact, a mandatory
requirement. This position of the law as is applicable in England was made clear
as long ago as in the case of R.v. Kansington Income Tax Commissioners, ex
parte Princess Edmond (1917) IKB 486, But, as pointed out by the learned
authored of Judicial Review of Administrative Action by S.A De Smith, 2nd
Edition which is the only edition I could lay hands on from our Library, at page
439:-

“..Uberrima fides is required and leave will not be granted if there has been a
deliberate misrepresentation or concealment of material facts in the applicant’s
affidavits.

I have perused the applicants affidavit with due care. I am satisfied that
affidavit does not show that there is deliberate misrepresentation or concealment
of facts. All that there is in the counted affidavit that tends to indicate that such a
situation exists are contentious matters.

There is for distance the claim that some of the applicants were compensated in
1972; or that yet others have no property within the disputed lands. To me these
are matters that require proof by concrete evidence. I find no evidence in the
counter affidavit that proves these allegations.

I am satisfied, therefore, and I find as a fact that the first applicant’s affidavit
meets the requirement o uberrima fides. It is in this vein that I uphold Prof.
Fimbo’s submission on this point.

If not considered carefully a decision on the various paragraphs of the first

point of objection will pre-empt an application for the prerogative orders if such
an application will be filed. Matters that are raised in paragraphs (b) (c) and (d) in
the first objection will have their legistmate place in that other application. By and
larger therefore, the first objection would fail.

The second preliminary objection relates to the locus standi of the

applicants. Mr.Werema has argued in this connection that the affidavit of Josiah
Balthazar Baisi does not disclose that all the numerous applicants have a right to
appear and to be heard in these proceedings, namely that they have no locus
standi. Professor Fimbo has traced the law relating to how the Morogoro Road
became a highway and how his clients as owners or reputed owners or people
being in actual possession of land are entitled to compensation before such land is
appropriated by the Government. So, to him, his clients have locus standi .

I think it is important to make a distinction between locus standi as regards

claims of an individual nature for a private law remedy and claims the purpose of
which is to get a relief or remedy for the public good which is based on public

235
 law. The present application falls under the second category where an Before
proceeding to consideration of these matters, something more needs to be said
about the threshold requirement of sufficient interest.

The courts in exercising the power to grant prerogative writs, or, since 1938,
prerogative orders, have always received the right to be satisfied that the applicant
had some genuine locus standi to appear before it.

This they expressed in different ways. Sometimes it was said, usually in relations
to certiorari, that the applicant must be a person aggrieved or having a particular
grievance..; usually in relation to mandamus, that he must have a specific legal
right…; sometimes that he must have a sufficient interest….By 1977 when R.S.C,
Order 53 was introduced, the courts, guided by Lord Parker, C.J., in cases where
mandamus was sought, were moving away from the Lewisham Union test of
specific legal right, to one of sufficient interest..”

Lord Diplock shared the same views with Lord Wilberforce as can be seen from
page 636 to 642. Lord Scarman said this, at page 653:-

“The interest
The sufficiency of the interest is as I understand all your Lordships agree,
a mixed question of law and fact..

The one legal principle, which is implicit in the case law and accurately
reflected in the rules of court, is that in determining the sufficiency of an applicant’s
interest it is necessary to consider the matter to which the application related. It is wrong
in law, as I understand the cases, for the court to attempt an assessment of the sufficiency
of the applicant’s interest without regard to the matter of his complaint.

If he fails to show, when he applied for leave, a prima facie case, or reasonable grounds
for believing that there has been failure of public duty, the court would be in error if it
granted leave. The curb represented by the need for an applicant to show, when he seeks
leave to apply, that he has such a case is an essential protection against abuse o legal
process. It enables the court to prevent abuse by busybodies, cranks, and other mischief –
makers…”

Hence, whether or not sufficiency of interest has been established is a matter that
is within the discretion of the Court. The natural question that flows from these
considerations is, therefore, whether the applicants or any of them have established
sufficient interest.

I am satisfied that they have done so. Firstly, there is the first applicant whose claim is
sufficiently detailed in his affidavit. Secondly, there are those Mr. Werema has admitted
are entitled to compensation. All these have a right to be heard in pursuit of their rights. It
appears that there may be some confusion that hovers around the issue of locus standi

236
 It seems that this issue once decided, then whoever has been seen to have the right
to be heard during the application for leave will necessarily have that right in the
application for the prerogative orders. The position is not so for all cases. 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 applicants for judicial review has
no right of being heard, he has no standing, as it were.

These are the kind of people who have no interest at all, at they have no sufficient interest
to support their claim. It will in these circumstances, be correct at the threshold, to refuse
leave to apply. In cases that involve complex issue, the question of sufficiency of interest
has to be considered together with the legal and factual context of the application.

If the application for the pregative 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. So, although public – spirited land owners
may succeed in an application for or leave on behalf of al larger a group they may not of
necessity succeed at the stage of the application for those orders if they cannot establish
their right of standing. In view of the foregoing observations I am satisfied that the
applicants have established a sufficient interest to be able to apply for leave. The second
objection would accordingly fail.

As to the third preliminary objection, that this is an unfit case to be dete-mined by

way of judicial review, one may say right from the outset that the answer resides in the
purpose for which prohibition and mandamus is all about.

Before I go to that stage. I will revisit submissions by learned counsel. Mr. Werema has
submitted that the application considered in the light of the first applicant’s affidavit,
concerns a matter that may not be decided by way of judicial review. He refers to those
who will be compensated and that the latter group are already made aware of the
Government decision in their favour.

I understand him to mean that although such people may have grievances, they can get a
remedy in private law in the nature of a civil process rather than by way of a public law
remedy through judicial review. Indeed, he went on to say that appears to be the position
because none of the applicants opposed the road expansion object.

That they claim compensation which may be paid even the works have been executed.
Professor Fimbo did address his issue especially emphassing the point that his clients are
provided to a remedy because their property in the suit land will appropriated by the
Government. So that the Government should prevailed upon by way of an order of
prohibition until the sensation is paid, and an order or mandamus to compel the affirmed
to any compensation.

237
 Now, what really is the purpose and essence of the prerogative order of
mandamus? There is no doubt that the order of mandamus may be issued to any person or
body commanding him or them to carry our some public duty.

The public duty envisaged in these proceedings is the statutory requirements that have to
be met before private land is acquired for purposes of public roads construction or for
expansion of such roads. Professor Fimbo has made the point that the parcel of land on
which it is intended to expand the Morogoro highway is owned by his clients it terms of
the definition of the word “owner” in section 2 of the Highways Ordinance, Cap 1676,
which includes a “reputed” owner” the applicants he argued, fall under this category. In
addition, the Township and Country Planning Ordinance defines the word “owner” to
include “ary other person in actual possession of land”. To me these definitions per se do
not bestow uncontroversial rights on the applicants.

They have to establish, in view of Mr. Werema’s contention, and in view of the counter
affidavit, that they are not trespassers after the Government is said to have paid
compensation to owners of the same land when it was appropriated for construction of
same highway in 1972. they are required to establish their title to that land. Of course this
will not be done in proceedings for judicial review. Indeed the applicant’s must show that
they have at least a prima facie case for the quantum of their claim for compensation
before the Government is compelled to effect such payment. Quantum of the
compensation cannot be proved in an application for judicial review.

I would therefore agree with Mr. Werema that the issue of payment of compensation in
the peculiar circumstances of this case cannot be justiciable in a proceeding for judicial
review. Once, as I have held, the Government has no statutory duty to pay compensation
to anyone who has not established his titled to land so also the Government cannot be
compelled is prayed for in the statement to nurtiale the process of compulsory acquisition
of the applicant’s hands under the Land Acquisition Act, 1967. similarly, the applicants
have not shown in their affidavit and in the Statement that there exist circumstances
which make justified the issuance of an order of mandamus to allocate alternative plots to
all the applicants when they have not shown, by probative evidence that the land
earmarked for the road expansion in law belongs top them. They have to establish their
interest before they can seek a public remedy.

The above consideration have made my task easier as regards the remedy that is
sought by way of the order of prohibition. According to the chamber summons and to the
Statement the purpose of that order is to restrain the Government and its agents from
carrying out expansion of the Morogoro Road and from demolishing the applicants’
houses, buildings and other structures before fair and adequate compensation for the
same is paid in full.

As have pointed above the applicants right to compensation is inchoate. They have yet to
prove it and this cannot be done in an application such as this one. The third objection
would therefore succeed.

238
 Finally, Mr. Werema made an alternative prayer, that if the application for leave
is allowed, an order for security be made against the applicants so that they may cushion
the Government against spiraling construction costs that may arise from the applicant’s
obstruction.

Professor Fimbo considers that such a prayer is strange because orders for security for
costs are aimed at non- resident plaintiffs in terms of Order XXV of the Civil Procedure
Code. I agree, and , that said the prayer for deposit for security fails.

Upon the foregoing observations and considerations the application for leave to
apply for the orders of prohibition and mandamus fails. It is accordingly dismissed. There
will be no order costs.
Delivered.

J.M.MACKANJA

JUDGE

Appearances:

Professor – G. Mgongo – Fimbo – For Applicant Mr. Werema, SSA Mr. Chidowu. SA:
For Respondent

Certified true copy of the original.

DISTRICT REGISTRAR.

IN THE HIGH COURT OR TANZANIA

AT DARE ES SALAAM

MINC CIVIL CAUSE NO 127 OF 1989

In the Matter of the Mining Act, 1979 Section 50

And

In the Matter of an Application for the Orders of Certiorari and Mandumus

Between

KAHAMA GOLD MINES COMPANY LIMITED…1ST APPLICANT

KONE CORPORATION………………………………2ND APPLICANT
OUTKUMPU……………………………………………3RD APPLICANT

Versus

239
 THE MINISTER FOR ENERGY & MINERALS…..RESPONDENT

………………….

RULING

This is an application or interim injunction to restrain the respondent from

handing over the disputed area to Placer Dome Inc. or any one else pending the final
determination of the main application, Order 37 rules 1 and 2 of the Civil Procedure a
code; 1966, are cited as enabling provisions Mr. Change, Counsel for the respondent has
taken issue with that citation and I will recur to that point later.

Looking at the materials set out in the affidavits, and after hearing the advocates, I
find it as established prime facie that the applicants have worked on the project, for
several year, made discoveries of substantial gold deposit at great expense and that no
offer of compensation has been made to them for what they have done. As already found
by this Court, the applicants prospecting licence expire on 27/8/87 and their application
for renewal of that licence has not been dealt with by the respondent according to the
provisions of the relevant law. It is common ground that Placer Dome have been handed
over the area by the respondent. Mr. Change has argued that under section 35 of the
Mining Act, 1979, The applicants were mere licenses. It might be so, but the provisions
of that Act are the very ones the respondent is said to have paid no regard.

Dr. Lamwai, Counsel for the applicants, has submitted that the injury which the
applicants, on the one hand; might sustain if the injunction is refused and they should
ultimately turn out to be successful is mush more that the injury which the respondent, on
the other hand, would suffer if the injunction is granted and he should ultimately turn out
to be right. In my judgment that submission right.

As observed at the outset, Mr. Chenge has taken issue with the citation of Order
37 rules 1 and 2 as enabling provisions. In reply Dr. Lamwai has made reference to
section 2(2) of the Judicature and Application of Laws Ordinance, Cap 453, and Act No
55 of 1968 and pointed out, correctly, that the Chief Justice has yet to make any rules
prescribing the procedure for application of this nature. He has pleaded, essentially that
those provisions of the C.P.C have been cited for want of any prescribed rules under the
Ordinance.
I appreciate Dr Lamwai’s point and predicament. I take the view, however, that
independently of any questions as to statutory provisions the High Court has in general
original and independent jurisdiction to issue interlocutory orders to prevent what it
considers continuing or intended injury to a party where it appears to the Court to be just
as well as convenient. And the jurisdiction of this Court in granting interim injunction so
far as it partakes of the nature of preventive remedy, is one that may be exercised without
difficulty in the majority of cases, and rests upon clearly settled principles.

Where such injunction is sought, it is not necessary that the Court should be satisfied find
a case which would entitle the applicant to relief at all events; it is quite sufficient for it

240
to find a case which shows there is a substantial or serious question to be investigated,
and that the status quo should be preserved until that question can be finally disposed of,
and the balance of convenience will be the overriding consideration.

But it has been said on behalf of the respondent that Placer Dome are already in
occupation of the area Dr. Lamwai has thus arged this Court to grant a mandatory
injunction instead i.e an order compeling the respondent to restore things to the
condition in which they were at the time when the application was made and keep them
in that state until their rights can be ascertained and finally determined. The jurisdiction
of this Court in granting such injunction in this case is a different matter and I will return
to that at the end of this Ruling.

Mr Chenge has taken a further point namely, that this Court has no jurisdiction
whatever to make an order for any kind of injunction against the respondent. His
authorities are section 11 of the Government Proceedings Act, 1967, Order 37 C.P.C as
modified by GN, 376 of 1968 as well as the English Case of Underhill and Another V.
Ministry of Food, (1950) E.A “591.

So far as material section 11 of the Government Proceeding. Act provides that in

proceedings against the the Government the Court has no power to there an injunction,
but may make on order declaratory of the parties rights. It also provides that in any Civil
Proceedings the Court has no power to grant an injunction against an Officer of the
Government, if the effect of doing so would be to give relief against the Government
which could nor have been obtained in proceedings against the Government (the object of
this rule is to prevent the Government immunity being stultified by substituting an
individual official as the defendant, since the whole point of the immunity is that the
machinery of central government shall not be impeded by injunction)

As for GN 376 of 1968, rule 2 thereof makes certain provisions of the first schedule to
the C.P.C ( which includes Order 37) applicable to proceedings under the Government
Proceedings Act subject to the modifications specified in the schedule thereto. By virtue
of these provisions the Court has no power to grant a temporary injunction against the
Government, but in lieu threof the Court may make an order declaratory of the rights of
the parties. Whether that makes good sense, however, a moor point. For one thing, as the
learned judge observed in Underhill and Anather ,such interim declaration might be the
very apposite of the final declaration of right make at the end of the trial after all the
matter in issue had been gone into at leghth.

Underhill and another was a decision of the Chancery Division in relation to

section 21 of the English Crown Proceedings Act, 1947 which corresponds with section
11 of our Government Proceedings Act. It was conceded at the hearing, and held by
Romer, J., that in view of that provision the plaintiff’s prayer for interlocutory injunction
could not be entertained by the Court. As demonstrated above, that is exactly what GN.
376 of 1968 makes crystal clear.

241
 In my judgment Underhill and Another is no authority for the proposition that an
interim injunction cannot granted in proceedings for prerogative remedies. And Dr.
Lamwai’s submission that the Government Proceedings Act is inapplicable to the matter
at hand has substance.

Certainly to make that Act applicable to proceedings relating to prerogative

remedies would result into thinning the intended affect of the remedy of mandamus, and
it may be well to remember that mandamus, for one, has some of the attributes of a
mandatory injunction. Both are commands from the Court that some legal duty be
performed; and disobedience to them is a contempt of court for which the normal penalty
is imprisonment.

I am the more inclined to take that view by another consideration; the

Government Proceedings Act is basically designed to make private law applicable the
Government, subject to the modifications and exemption set out therein. But matters
relating to prerogative remedies do not belong to the province of private law. They
pertain to public law.

In England injunction is apparently conceived to be basically a private law

remedy and the position is that prerogative remedies cannot be sought alternatively to
such remedy or be married to any other form of action.

They can be sought only by their own peculiar process, which reflect their peculiar
nature.
In Tanzania, as Dr Lamwai pointed out, it has been the practice to grantinter injunction in
proceedings or prerogative remedies where it has been deemed just and convenient to do
so, notably in immigration matters to restrain the authorities from repatriating or
expecting people from the country pending the final conclusion of proceedings for the
issue of habeas corpus, that, in my view, is good practice, and whether the machinery of
the central government would be unduly impeded by the issue of such injunction in a
particular case should be one of the points to be considered by the court in deciding the
question whether it is just and convenient to grant the injunction.

I hold that an application for interim mandatory injunctions is maintainable in law

in Tanzania in cases such as the instant one. This much, though should be conceded.

First, such injunction is more drastic on effect; and, secondly, the court is often not in
position to superintend the operation involved. So, as the text in Hanbury referred to by
Dr. Lamwai says, such injunction should be less readily granted. Bearing in mind those
two considerations, in particular the second one, I take the view that it is not convenient
to grant a mandatory interim injunction in this action as asked for. But fairness demands
that the status quo be maintained, which means placer Dome should stop doing any work
at the area by way event, the order of this Court is that the respondent shall prevent Placer
Dome from doing any Mining work at the area until the final determination of this action
or until further order of the Court.

242
Delivered.

Dr. Lamwai for the Applicant.

Mr. Chenge for the Respondent.

IN THE COURT O APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: RAMADHANI, J. A MNZAVA, J.A.,AND MFALILA, J.A.)

CIVIL APPEAL NO. 14 OF 1995

BETWEEN

MECAIANA ESTABLISHMENTS
(VADUZ)…………………………. APPELLANT

AND

THE COMMISSIONER OF INCOME TAX

AND SIX OTHERS ………………………RESPONDENTS

(Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam)

(Mapigano, J.)

Dated the 31st day of March, 1994

In
Minc, Civil Cause No. 156 of 1993

JUDGEMENT OF THE COURT

RAMADHANI, J. A. :

243
 The appellant, Mecaiana Establishments (Vaduz), is the applicant in Minc. Civil
Cause No. 156 of 1993 before the High Court of Tanzania at Dar es Salaam and there are
seven respondents. The Commissioner of Income Tax, the respondent in this appeal, is
the first respondent in that Misc. Civil Cause while the seventh respondent is the
Attorney – General. The other five respondents are individuals.

In those proceedings the appellant is seeking five prerogative orders against the
present respondent to this appeal and four declarations against the Government.

As is the case in applications for prerogative orders, the appellant first sought
leave to file application for the orders. The representatives of the Attorney – General
categorically stated the the Attorney – General was not representing the Commissioner of
Income Tax. They appeared for the Attorney – General and the other five respondents.
Luckily at the hearing, Mr. Lutainulwa, the then Commissioner of Income Tax, was
personally present was granted for the application for prerogative orders.

The Commissioner of Income Tax, then, filed a Chamber application to strike out
the application of the appellant. The response of the appellant was to file a preliminary
objection containing three points.

The first point is the one relevant in this appeal. The appellant contended that the
chamber applicant by the Commissioner of Income Tax is proceedings by the
Government and so it could only be brought by the Attorney – General.
MAPIGANO, J, in agreement with Mr. Salula for the Attorney General, found
that the chamber application was not proceedings the Government and therefore it was
not necessary for the application to be brought by the Attorney – General.

Before us in the appeal Mr. Mkono, learned Council, appeal on behalf of the
appellant. He argued that proceedings for prerogative orders are government proceedings.
He pointed out that the statutory basis of granting prerogative order is S. 17A of the Law
Reform ( Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) as
amended by Act No. 27 of 1991. Mr. Mkono pointed out further that sub-section (2) of
that section required the Attorney – General to be summoned to appeal as a party.

To the learned advocate this made proceedings for prerogative orders government
proceedings which under s. 9(2) of the Government Proceedings Act, 1967 are to be
instituted by the Attorney – General Mr. Mkono submitted that the respondent, the
Commissioner of Income Tax, did not file a defense but a separate chamber application
which amounted to instituting a proceeding. That, the learned advocate submitted, the
respondent could not do for lack of locus standi.

On behalf of the respondent was Mr. Luoga, learned Counsel. He conceded that
so. 17A (1) of the law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance
demands the Attorney – General to be summoned as a party.

244
However, he pointed out that it is not a requirement once leave has been granted as was
the case in this application. Mr. Luoga submitted further that the respondent was both a
proper and a necessary party and that some of the relief contained in the appellant’s
prayer can only be respondent to by this respondent. Lastly, he argued that s. 9(2) of the
Government Proceedings Act, 1967 does not preclude the respondent from initiating
proceedings as the provision is subject to the provision of any other written law. Mr.
Luoga submitted that GN 306 of 1961 in such other written law which allows the
respondent to initiate proceedings.

The crux of the matter here is whether or not proceedings for prerogative rights are
Government Proceedings. This depends entirely on the interpretation of s. 17A of the
Law Reform (Fatal Accidents and Miscellaneous Provision) Ordinance. Sub – section (1)
of that section provides:-

“where leave for application for an order of mandamus, prohibition or certiorari is

sought in any civil matter against the Government, the court shall order that the Attorney
– General be summoned to appear as a party to those proceedings; save that if the
Attorney – General does not appear before the court on the date specified in the
summons, the court may direct that the application be heard ex-parte.” (emhasis is ours).

From the clear and unambiguous words of that sub – section the requirement to
summon the Attorney – General as a Party in proceedings for prerogative orders is when
leave for application to institute those proceedings is sought. Thus after leave has been
granted to institute those proceedings, then there is no requirement of summoning the
Attorney – General as a Party.

It may be necessary to point out here that as the Chief Justice has not made rules
to govern these proceedings, the High Court has been following the procedure obtained in
England. A party first makes an application for leave to apply for prerogative orders.
After leave has been granted, the party then proceeds to file an application for the
prerogative orders. The requirement of summoning the Attorney – General as a Party as a
party is for the first stage of seeking leave. That requirement is absent in the second stage
of application for prerogative orders.

We get support in this construction when we look at sub – section (2) of this same
section 17A dealing with proceedings involving the interpretation of the constitution. Sub
– section (2) provides:-

“In any proceedings involving the interpretation of the constitution with regard to
the basic freedoms, rights and duties specified in Part III of Chapter I of the Constitution,
no hearing shall be commenced or continued unless the Attorney – General or his
representatives designated by him or that purpose is summoned to appeal as a party to
those proceedings ….(emphasis is ours).

The sub- section is very category that proceedings involving the interpretation of
the Constitution shall not commence or continue without the Attorney – General. Of

245
course, there is the exception where the Attorney – General. Of course, there is the
exception where the Attorney – General or his representative does not appear on the
designated day. In such a case the Court may direct the hearing to commerce or to
continue without him.

So, we agree with Mr. Luoga that s. 17A applies only in the first stage of seeking
leave. As leave was granted, then there was no need to have the Attorney – General. That
is particularly so when the representatives of the Attorney – General, Mr. Mrema and
Mrs. Ndosi, at different times, said in Court that they were not representing the
respondent
Government proceedings, on the other hand, have to be instituted by or against
the Attorney – General. That is the clear provision of s.9 of the Government proceedings
Act, 1967. Since application for prerogative orders can be proceeded against any party,
not necessarily the Attorney – General, as we have seen above, then they are not in the
nature of Government proceedings which must be against or by the Attorney – General
only.
Before we finish we wish to comment briefly on two matters. First, Mr. Mkono
dwelt at a considerable length reviewing English law on what constitution Government
proceedings. That was not necessary since we have our own law on that. Second, Mr.

Luoga referred us to GN. 306 of 1961 as a piece of written law which provides for a
departure from the requirement of s. 9 of the Government Proceedings Act and which,
according to him, empowered the respondent to do what he did. We have seen that GN
but it is not at all relevant. It is titled “The Personal Tax (Variation of Due Date) Njellu
Chiefdom, Songea District Order, 1961”, We are not sure whether this was a slip or it
was deliberate and calculated to mislead.
For these reasons we dismiss the appeal with costs. It is so ordered.

DATED at DAR ES SALAAM this 8th day of December, 1995.

A.S.L RAMADHANI
JUSTICE OF APPEAL

N.S MNZAVAS
JUSTICE OF APPEAL

L.M MFALILA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.

( M.S SHANGALI)
DEPUTY REGISTRAR

246
 IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: KISANGA, J.A., MNZAVAS, J.A., AND MFALILA, J.A.)

CIVIL APPEAL NO. 28 OF 1995

Between

1. REV. CHRISTOPHER MTIKILA

2. THE DEMOCRATIC PARTY

And

1. THE HON. THE ATTORNEY GENERA L

2. THE REGISTRAR OR POLITICAL PARTIES.

(Appeal from the judgment of the High Court of Tanzania at Dar es Salaam)

(Maina, J.)

Dated the 14th day of December, 1993

In
Miscellaneous Civil Cause No. 67 of 1993

JUDGEMENT OF THE COURT

MFALILA, J.A.:

This appeal is against the ruling of the High Court (Main, J.) dismissing the
appellants, application for orders of Certiorari and Mandamus against the 2nd respondent
the Registrar of Political Parties. In Minc. Civil Cause No. 67 of 1995, the appellants
sought the order of certiorari to quash the decision of the Registrar of Political Parties
rejecting the appellants application for the full registration of the second appellant. They
also sought the order of Mandamus to compel the second respondent to issue the second
appellant with a certificate of full registration.

Three grounds were cited to support the application, namely, that the second respondent
was biased against the second appellant, that both the reasons he gave and the political
parties Act are unconstitutional. The application was supported by the affidavit of the 1st
appellant to which Council for both respondents filed a counter affidavit.

The 1st respondent was cited as a necessary party since the constitutionally of an Act of
Parliament had been raised. After fully considering the arguments for and against the

247
application, the judge dismissed the application, holding that the decision of the second
respondent rejecting the appellants application for full registration of the second appellant
was not affected by any bias on his part and that both the reasons given and the Political
Parties Act were constitutional. The appellants were aggrieved by this decision and they
lodged this appeal.

On behalf of the appellants, Mr Nyange learned advocate filed five ground of

appeal but at the hearing, he ended up arguing only two grounds namely grounds 1 and 4.
The other three grounds, 2, 3 and 5 were rightly conceded by Mr. Nyange to be largely
irrelevant and inapplicable in an application such as the present for Certiorari and
Mandamus. These concerned the interpretation and application of the constitution.

In ground 1, the appellants complained that as the proceedings in the High Court
were not of an interlocutory nature, the learned judge erred in law in admitting evidence
based on an affidavit deposed to by a person who could not of his own person knowledge
prove the contents thereof. The affidavit that is being impugned is the counter affidavit
deposit to by Mr. Salula learned Senior State Attorney who appeared for the respondents
both in the High Court and in this appeal.

In the High Court, Mr. Nyange had raised a preliminary objection against Mr. Salula’s
counter affidavit stating that it contravenes Order 19 rule 3(1) of the Civil Procedure
Code in that it purports to show that all the information therein is based on the deponent’s
own personal knowledge when it was not true.

He said that the information in paragraphs 4, 5, 6, and 8 could only have been supplied to
Mr. Salula by the second respondent, hence he should have disclosed the source of such
information. He therefore prayed that the counter affidavit be rejected as incompetent and
the application should proceed as unopposed.

The learned judge agreed that the counter affidavit was defective for this reason but
declined to reject it as prayed by Mr. Nyange on the basis that it would work injustice on
the respondents.

He therefore allowed Mr. Salula to amend his counter affidavit. Mr. Salula complied with
this order by filing an amended counter affidavit on which the hearing proceeded. The
first group complains against this decision and at the hearing of this appeal, Mr Nyange
urged us to ignore the counter affidavit and treat the application as uncontroversial both
in the High Court and in this Court.

However Mr Salula contention by saying that the provisions of 0.19 do not apply
to the present case, because, firstly, this was not a final matter, it was an application to
apply for orders of certiorari and Mandamus.

We do not think this reason is valid because the same counter affidavit was used in the
final application for orders of certiorari and mandamus. Secondly, he said there was no
order by the Court to prove anything by affidavit, hence he said he was not proving

248
anything, he was simply answering what had been raised in the affidavit in support of the
application in a Chamber Summons Under 0.43 r. 2.

We think this submission is valid. Apart from interlocutory applications which hardly
require proof of facts, facts which have been ordered by the Court to be proved by
affidavit should only be proved by evidence from the deponents own knowledge,
otherwise it would be allowing a party to prove his case by hearsay evidence.

Hence in a case such as the present where it is an application under 0.43 r.2. the disclose
of the source of information should be sufficient. We are satisfies that it was on the basis
of this that the 1st appellant’s own affidavit in support of the application was accepted
even though it contained in paragraph 7 information which was not from his own
personal knowledge.

If his own affidavit contained such information and was admitted and acted upon, we are
surprised that he should object against the other side doing the same. If the High Court or
this Court accepted Mr. Nyange’s objection against the amended counter affidavit and we
ordered the rejection of the counter affidavit, we do not see how at the same time we
could hold the affidavit, which contains the same “error” as valid in law. If the counter
affidavit has to be rejected, the appellants’ affidavit must also be rejected for the same
reason and there would then be nothing before the Court to support the appellants’ own
application. Accordingly we dismiss the complaint in ground No 1.

In ground 4 , the appellants complained that the learned judge erred in law in
failing to hold that the second respondent’s failure to give notice to the appellants of his
intention to refuse full registration did not amount to failure of natural justice. In
connection with this complaint, the position was as follows: The 1st appellant applied for
and the second appellant was granted provisional registration by the second respondent
on 11th September 1992 under the provision of Section B of the Political Parties Act
1992.

After considering itself that it had fulfilled all the conditions for full registration, the
second appellant applied for full registration under the provisions of the same Act. On
receipt of this application, the second respondent studied it and having done so decided to
reject it and refused to grant the second appellant full registration.

Detailed reasons for this refusal were communicated to the appellants by the second
respondent, the Registrar of Political Parties, in his letter Exh. D1 . It appears and this
was not disputed that the Registrar reached this decision without hearing the appellants.

It was for this reasons that the appellants attacked the Registrar’s decision. Both in the
High Court and in this Court Counsel for the appellants argued that in the exercise of his
quasi – judicial or administrative duties, the Registrar did not have absolute discretion.
He had to observe principles of natural justice which required him to inform the
appellants of his intended decision to reject their application or full registration and the
reasons thereof; thereby giving them an opportunity to be heard.

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That since this was not done, the Registrar’s decision was invalid as being against the
principles of natural justice. On behalf of the second respondent, Mr. Salula argued that a
distinction has to be made between exercise of the powers of the Registrar to refuse to
grant full registration to a Political Party and the exercise of his powers under Section 15
or the Act canceling the registration of a Political Party.

He said that whereas the Registrar must inform the Political Party of his intention to
cancel it and hear its representations if any, there is no such obligation when refusing to
grant full registration.

The learned High Court Judge agreed with Mr. Salula’s argument. Because of the
importance of this argument on this ground of appeal, we intend to quote the learned
judge’s decision in full to appreciate the process of his reasoning:
“Mr. Salula on the other hand, submitted that refusal to grant full registration of the
second applicant was in accordance with the law, and that refusal to grant full registration
is not the same as cancellation of a registered political party. Section 15(1) of the Political
Parties Act provides that “The Registrar may cancel the registration of any political party
which has contravened any of the provisions of the Act”.

That however, is subject to subsection (2) which requires the Registrar, inter alia to
inform the party concerned of the contravention or loss of qualification and of the
intention to cancel the registration. The party concerned will then have an opportunity to
make representation before the Registrar decides to cancel the registrar decides to cancel
the registration. However there is no such provision regarding refusal to grant full
registration.

I think there is logic in that. A political party which is provisionally registered party has
one hundred and eighty days within which to apply for full registration. During that
period, it has every opportunity to make consultation with the Registrar before it applies
for full registration. The condition laid down in the Political Parties Act and the
Regulations made there under (published as Government Notice No. 111 of 1992) must
be complied with.

There will be no reason again for the Registrar to give a notice to a provisionally
registered political party of intention to refuse full registration. I agree with Mr. Salula
that what the second respondent did was according to law and there was no failure of
natural justice.

What the second respondent did was to scrutinize the documents which were presented
by the second applicant and having found that they were not in accordance with the law
and the Constitution he refused to grant full-registration. That was strict application of the
law as it stands”.

This then is the background to the appellants complaint in ground 4. We are

genuinely surprised by the reasoning of the learned judge to the effect that by denying the

250
appellants the opportunities of being heard before making a decision which was clearly
against their legal and political interests, the Registrar was complying with the law which
he was applying strictly.

We concede that there is no provision in the Political Parties Act requiring the Registrar
to inform the party concerned of his intention to refuse to grant full registration
equivalent to that requiring him to do so before he cancels the registration of a Political,
but the absence of such a provision is not a licence to the Registrar to act in contravention
of the rules of natural justice as well as a specific provision in the constitution which
require him to do so.

A rule of natural justice forbids the condemnation of a person before he is heard. A

refusal to grant an application for full registration is a species of condemnation. Then
there is the provision in Article 13(6) of the constitution of the United Republic to the
following effect:

“13. (6) Kwa madhumuni ya kuhakikisha usawa mbele ya sheria,

Mamlaka ya nchi itaweka taratibu zinazofaa au zinazozingatia misingi
kwamba
(a) Wakati haki na wajibu na mtu yeyote vinahitaji kufanyiwa uamuzi na
Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa
na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu, na kupata nafuu
nyingine na kisheria kutokana na maamuzi ya Mahakama au chombo
kinginecho kinachohusika.

Certainly the Registrar of Political Parties is included in “chombo

kinginecho kinachohusika” referred to in this Sub- article and in the course of
making up his mind whether or not to grant full registration on the basis of the
materials before him, he is involved fully in the process envisaged by the Sub-
article i.e determining the right and obligations of a party of parties thereby
making it obligatory for him to hear them before arriving at his decision,
particularly if it is against their interests, rights and obligations.

Mr. Salula argued in the alternative that granted the Registrar was obliged
to inform the appellants of his intention to refuse full registration before actually
doing so, there was no time to do this as the appellants submitted their application
for full registration on the last day of their life as a provisionally registered
political party.

The appellants submitted their application on the 180th day. Therefore in

Mr. Salula’s opinion, since a provisionally registered party ceases to exist after

251
 the expiry of 180 days, there was no subject matter which would have been a
subject of information or communication by the Registrar.
Section 8(4) of the Political Parties Act provides as follows…

“The provisional registration of every party shall lapse and every

registration certificate shall cease to be of any effect at the expiry of one hundred
and eighty days from the date of one hundred and eighty days from the date of
such provisional registration.”

Mr. Salula argument must be rejected for two reasons. The provisional registration of the
second appellant may have lapsed and the provisional registration certificate ceased to be
of any effect at the end of the day when application for full registration was made, but
there were still alive and very much in existence, is the human agents, i.e. the office
bearers who physically filed the applications under Regulation 4(1) of the Political
Parties (Registration) Regulations G.N. 111/92.

These are the two people to whom information should have been sent by the Registrar of
his intention to refuse granting full registration and to hear them it they so wished. After
all it is the two human agents, the office bearers, who were directly affected by the
Registrar’s decision.

The second reason is that in Minc. Civil Application No. 42/93 filed in the High
Court at Dar es Salaam, the first appellant had applied for the extension of the party’s
provisional registration until the party’s application for full registration is determined by
the Registrar of Political Parties. The High Court (Samatta, J.K.) granted the application
and made the following order.

“The provisional registration of the Democratic Party and the certificate of that
registration are, in law, still in force and will lapse and expire respectively on the date the
party’s application for full registration will be granted or refused and that the party’s
leaders, servants and agents are, pending the determination by the Registrar of Political
Parties of the party’s application for full registration, entitled in law to conduct political
affairs in the country in terms of their party’s provisional registration.”

Samatta, J.K. made this order following his interpretation of Section 8(4) of the Political
Parties Act to which he added words in order give the Sub – section what he called a
rational meaning and to avoid an obvious absurdity in the meaning carried by the literal
words used by the legislature.

The state did not appeal against this interpretation of Section 8(4) by the learned Jaji
Kiongozi. We therefore must take that interpretation to be the law currently obtaining. In
the light of this order by the High Court, the second appellant was very much still in
business at the time the second respondent was making his decision not to grant full
registration to the second appellant.

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 For these reasons we are satisfied that the Registrar of Political Parties acted
contrary to law when he refused the appellants’ application for full registration without
hearing them. Accordingly, we allow the appeal, we quash the order of the Registrar of
Political Parties refusing to grant full registration to the second appellant, we return the
matter to the said Registrar and order that he should deal with the appellants’ application
in accordance with the principles of law of fairness and justice.

We make further for costs in favour of the appellants.

DATED AT DAR ES SALAAM THIS 20TH DAY OF OCTOBER, 1995.

R. H. KISANGA
JUSTICE OF APPEAL

N. S. MNZAVAS
JUSTICE OF APPEAL

L.M MFALILA
JUSTICE OF APPEAL

I certify that this is an true copy of the original.

(M. S. SHANGALI)
DEPUTY REGISTRAR

253
 IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: KISANGA, J.A RAMADHANI, J.A., And MFALILA, J.A)

CIVIL APPEAL NO. 48 OF 1994

BETWEEN

NATIONAL HOUSING CORPORATION ….APPELLANT

AND

TANZANIA SHOE COMPANY And

38 OTHERS ……………………….RESPONDENTS
AND

THE ATTORNEY GENERAL ……….. NECESSARY PARTY

(Appeal from the Judgement and Decree of the High Court of Tanzania at Dodoma)

( Mwalusanya, J.)
Dated the 22nd day of July, 1994)
In
Minc. Civil Cause No. 1 of 1993

JUDGEMENT OF THE COURT.

KISANGA, J.A.

This appeal arises from the decision of the High Court (Mwalusanya, J.) granting
orders of certiorari and prohibition against the appellant, The National Housing
Corporation (N.H.C) for having effected rent increases to its tenants to the tune of 800m
per annum. Before the matter proceeded to hearing the trial judge, following
representations from the Bar, ruled that in terms of section 17A (2) of the Law Reform
(Fatal Accidents and Miscellaneous Provisions Ordinance) Cap. 360 as emended by Act
No 29 of 1991, the Attorney- General be served to appear. The case was then adjourned a
number or times between 23.7.93 and 16.6.94 because the Attorney-General could not be
served. The record shows that when the case came on for hearing on 16.6.94 Mr. Mussa,
the Senior State Attorney Dodoma, communicated the following information

“If a magistrate or any other tribunal has jurisdiction to enter the inquiry and to decide a
particular issue, and there is irregularity in the procedure, he does not destroy his
jurisdiction reaching a wrong decision. If he has jurisdiction to go right, he has

254
jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his
jurisdiction. 22”

And another example of the narrow approach is the decision of the former Chief Justice
of Tanzania Mr. Justice Saidi in Re Petition by Habel Kasenha. 23 By section 78 (2) of
the Local Government Elections Act it was provided:

“The proceedings of meeting of the District Executive Committee or any other organ of
the Party which is held for the purpose of this Act, should not be subject to review in any
court, either or by way of an election petition or otherwise.”

The Chief Justice held that the jurisdiction of the court was ousted, apparently even if the
election was procured by fraud and collusion as those are the grounds upon which the
petitioner relied on in his petition. Our 1977 Constitution provides under Article 6 (5):

“Where a person has been declared by the Electoral Commission to have been elected
President, his election shall not be questioned in any court”
Those who espouse the narrow approach would like to tell us that because of that ouster
clause the Presidential election cannot be challenged in court.
That is wrong.

In the case of East African Railways Corporation vs. Anthony Sefu24 Mwakasendo, J.
(as he then was ) took the narrow approach in arriving at the decision. In there section 16
of the Public Service Commission Act, 1962 read:

“The question whether any Commission has validly performed any function vested in it
by this Act, shall not be enquired into in any court.”

The judge held that the ouster clause ousted the jurisdiction of the High Court t inquire
into the validity of the decision to dismiss Anthony Sefu.

22. At. P 187.

23. (1967) E.A. 445

24. (1972) HCD No. 220

Taken by the East African Railway and Harbors Service Commission as the decision was
within its jurisdiction. Even if the decision was procured by fraud, that school of thought
argues that the commission has the right to go wrong or right within its jurisdiction.

It is of interest to note here that on a similar ouster clause Kneeler, J. of the High Court
of Kenya in the case of Chite vs. E.A Community 25 decided to adopt the broad approach

255
and held that the High Court had power to enquire into the decision of dismissal of an
employee to see if the same was arrived at in breach of rules of natural justice or not.

Surprisingly in Tanzania in cases filed to challenge detention orders under the Preventive
Detention Act, 196226 both the High Court and the Tanzania Court of Appeal have taken
the narrow approach. That statute had the ouster clause in section 3 which now has been
repealed by Act No. 2 of 1985. That section read;

“No order made under this Act shall be questioned in any court.”

In the case of Ali Yusufu Mpore vs. R27 Samatta, J. stated that the High Court could not go
further than the “authenticity” of the detention order to see if it is properly signed and
sealed.

A similar approach was adopted by. Maganga, J. in Ahmed Janmohamed Dhirani vs,R. 28
And later Bahati, J. echoed what his colleagues had said earlier in the case of Dhikri.29
Then the Tanzania Court of Appeal in the Case of A.G vs. Lesinoi Ndeinai30 adopted the
narrow approach despite the fact the Anisminic Case was mentioned. In that case Nyalali,
C. J. said:

25. (1970) E.A 487 (K)

26. Cap. 490

27. High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No. 2 of
1977 (Unreported)

28.(1979) L.R.T. No 1

29. High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No. 10 of
1984.

30. (1980) L.R.T No. 215

Designated by him for that purpose was summoned to appear as a party to the
proceedings in the trial court.

3. That the learned trial judge erred in law in commencing and continuing the
proceedings in the trial Court without summoning the Attorney – General or his
representative designated by him for that purpose to appear as a party to the
proceedings in the trial Court.”

256
Essentially these grounds are alleging non- compliance with the provisions of Section
17A (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance
Cap. 360, as amended by Act No. 27 of 1991. That sub- section provides that:

“17A (2). In any proceedings involving the interpretation of the Constitution with regard
to the basic freedoms, rights and duties specified in Part III of Chapter I of the
Constitution, no hearing shall be commenced or continued unless the Attorney – General
or his representative designated by him for that purpose is summoned to appear as a party
to those proceedings; save that if the Attorney – General or his designated representative
does not appear before the Court on the date specified in the summons, the court may
direct that the hearing be commenced or continued; as the case may be, ex-parte.”to the
Court:-

“Mussa – Senior State Attorney: we do not like to be heard. Counsel for the defendants
will take care of our interests.

Following receipt of such information the Court proceeded to hear the case at the
conclusion of which it granted orders of certiorari and prohibition as indicated above.

In the appeal the appellant corporation is represented by a team of three

advocates, namely, Mr. N. Rweyemamu, Mr. E.D Kisa and Mr. N. Mselemu. The
respondents are represented by Mr. D.C. Mbela learned advocate, while the Attorney
General was at first represented by Mr. E Kifunda and later by Mr. S.B Salula, learned
State Attorney and Senior State Arrorney, respectively.

On behalf of the appellant, a memorandum of appeal was filed containing a total

of 13 ground of appeal. But at the commencement of the hearing we directed counsel for
both sides to address us first on grounds 3 and 4 only which raised the issue or
jurisdiction or competence of the trial Court, it being apparent that should those grounds
succeed, that was sufficient to dispose of the entire appeal, and it would serve no
practical purposes to argue the rest of the grounds. The two grounds allege as follows:-

“3. That the learned trial judge erred in law in holding that the Attorney – General
was duly served without considering the question whether the Attorney – General or his
representative.

257
The sub-section requires that the Attorney General be summoned as a party in

the proceedings which involve the interpretation of the constitution with regard to

basic rights and freedoms enshrined in the construction.

Mr. Mesa seemed to doubt the applicability of this provision to the facts of the

present case which in his view, did not raise the question of interpretation in the

sense of clarifying some provisions of the constitution. With due respect

however, we think that this argument is misguided. The case seeks to challenge

the constitutionality of Government Notice No. 41 of 1982 which, it is alleged, is

discriminatory in its effect and which denied the respondents their right to be

heard before the appellant corporation, their land lord, effected rent increases

unilaterally and arbitrarily. We are of the settled view that these are matters

which fall squarely within the purview of the sub-section, and we can find no

justification for counsel’s misgivings on that point. It seems that a question might

arise whether or not claims of unconstitutionality can be remedied or redressed

upon application, as in this case, for certiorari and prohibition, but hat of course is

a different matter; the point here is that the issue of constitutionality of a

subsidiary legislation was raised, in which case sub-section (2) above quoted

was applicable

The pertinent now, therefore, is whether or not the trial was conducted in

contravention of section 17A (2) of cap. 360 as amended by Act No. 27 of 1991.

For the appellant corporation it is alleged that it was, and the Attorney General is

258
in agreement. However, the advocate for the respondents maintains that it was

not. In an attempt to resolve this question we recorded addition evidence from a

number of witnesses. Mr. K.M. Mussa, Senior state Attorney Dodoma in his

evidence before us seriously disputed the endorsement on the court record by

the trial judge on 16.6.94 to the effect that they did not wish to be heard and that

counsel for interests. Mr. Mussa denied making any such statement and indeed

went on to say that on the day in question i.e. 16.6.94 he was on safari away

from Dodoma where the

proceedings were being conducted.

Further additional evidence form witnesses confirms that on the day in question

Mr. Mussa did not, in fact, attend the court in Dodoma to state therein what has

been attributed to him. On the evidence, what appears to have happened was

that when on 16.6.94 the Attorney General did not appear, and indeed there is no

indication whatsoever that he was summoned for this date, the trial judge

adjourned that case briefly with instruction to his clerk, on Mr. B.S. Kihame, to

contact the office of the senior State Attorney Dodoma to find out what was the

position of the Attorney General in the matter. According to Mr. Kihame who gave

additional evidence before us, he spoke to Mr., Mussa over the telephone, and

the gist of that conversation as reported back by Mr. Kihame is contained in the

judge’s endorsement on the file as reproduced earlier.

259
In a farther attempt by Mr. Mussa to establish his absence form Dodom on the

particular day, he stated that between 12.6.94 and 22.6.94 he was away in

singida on a special assignment by the Minister for justice, that he had taken out

an imp rest for his subsistence allowances covering that whole period, that he

retuned to Dodoma on 19.6.94 and finally he referred to a document dated

30.6.94 against which he had retired the said imprest, he therefore maintained

that he could not have been told the judge’s clerk over the phone.

It is not conclusive that on 16.6.94 Mr. Mussa was not, or could not have been ,

in Dodoma. While Mr. Mussa maintains that be was away on that day and that

he returned to Dodoma only in 19.6.94, Mr. Kihame, the judge’s clerk, equally

maintains that he spoke to him over the phone in Dodoma that day and got from

him the information which he relayed to the judge. Thus it amounts to one man’s

word against another, and there is really no good reason for preferring the one

to the other. As the evidence stands, it is possible that Mr. Mussa could have

returned to Dodoma before 19.6.94 and thus could have spoken on the phone to

Mr. Kihama on 16.6.94

However even assuming that this is what, in fact, happened, does it amount to

saying that there was compliance with the provisions of sub-section (2) above

quoted? In order to comply with that sub-section, it was necessary to show that

the Attorney General or his representative designated for that purpose was

summoned to appear as a party to the proceedings Mr. Mesa contended that the

260
Attorney General was duly summoned, and in support of this submission he

relied on a summons dated 19.10.93 wan to the Attorney General and requiring

him to appear for mention of the case on 12.11.93 However, in that summons the

Attorney General is not cited as a party, He is summoned merely as the Attorney

General, while the only parties to the case are shown to be Tanzania shoe

company Ldt. And 26 others (plaintiffs) and National Housing corporation

(Defendant).

In this connection reference was made to the case of Lausa Alfan Salum and 106

others V. Minister for lands Housing and urban Development and national

Housing Corporation civil appeal no. 15 of (unreported) in which, as in the

present case, the constitutionality of Government Notice No. 41 of 1992 was

challenged. It was contend that in that case the Attorney General was not cited

as a party, and yet this court proceeded to deal with the appeal on the merits. It

first place in that case no objection was raised that the Attorney General was not

cited or summoned as a party. In the present case however, the non-summoning

of the Attorney General was objected to case cited the minister for lands Housing

and urban Development as a party and at the hearing the minister was

represented by the Senior state Attorney, The odder object of sub-section (2)

above quoted is to make sure that the Government is afforded the opportunity to

be heard upon an application for a prerogative order. Thus it seems to us that

the citing of the minister instead of the Attorney General was not an irregularity

which went to the root of the matter. For, one case say that the Government was

261
in a real sense, a party to the case especially as the senior state. Attorney on

behalf of the Attorney General and representing the minister for lands Housing

and urban Development, appeared and participated in the proceedings. In other

words the Government was, in a true sense, afforded the opportunity to be

heard. There was compliance with the spirit, though not with the letter, of the

sub-section, and had the Attorney General been cited instead of the minister, it

would not have made the slightest difference in the conduct of the proceedings.

In the instant case the summons, which was addressed to the Attorney General,

was returned with an endorsement on it that:

“ Attorney General is not a part of (sic) this suit. I thick this notice was to be

served to the secretary, National Housing coup.”

It seems plain to us that by such endorsement the Attorney General refused, and

rightly so in our view, to accept service. Thus we could find no justification

whatsoever for the view that the Attorney General was duly served for the

purpose of the present case. Furthermore it should be noted that he said

summons was asking the Attorney General to appear on 12.11.93 for the

purpose of mentioning the case only. But as intimated earlier. There is not the

slightest evidence or suggestion that any process was ever sent out to summon

the Attorney General for the hearing of the case either on 16.6.94 when the

hearing commenced or any day subsequent thereto

262
Once we hold as indeed we do, that the Attorney General was not summoned as

a party to appear for the hearing on 16.6.94, then there can be no basis for

saying that Mr. Mussa, the Senior State Attorney Dodoma, was summoned as

the Attorney General’s representative designated for the hearing on 16.6.94 For,

the Attorney General connote have designated Mr. Mussa to take part in the

proceedings on 16.6.94 to which proceedings the Attorney General himself was

not summoned and to which he was not a party. In which case. Therefore, the

calling by the court upon Mr. Mussa on 16.6.94 and

What Mr. Mussa is alleged to have said on that day that they did not wish to be

heard etc. even if it be true all this becomes wholly irrelevant for the simple

reason that Mr. Mussa was not the representative. Of the Attorney General within

the meaning of the sub-section. In other words, in terms of the sub-section Mr.

Mussa had no authority to be contacted or to say anything on behalf of the

Attorney General in this matter, especially after the Attorney General had

expressly stated on the summons which was sent t him that he was not a party to

the case.

It is true that the sub-section under consideration empowers the court, in certain

circumstances, to commence or continue hearing the case ex-prate if the court

so directs. But in this case the court did not direct that he hearing be commenced

or continued ex-prate. Indeed, if we may say so in passing, the circumstances of

the case could not have warranted any such direction.

263
The available evidence, therefore amply demonstrates that on 16.6.94 the

Attorney General or his representative designated for the purpose was not

summoned as a party to the case before the court. Indeed the Attorney General

was not summoned at all on that day or on any day thereafter. Nor did the court

direct that the proceedings be commenced or continued ex-prate. Section 17A

(2) of cop 360 as amended by Act. No. 27 of 1991 reproduced above is couched

mandatory terms, and in the light of the foregoing the hearing of the case was

commenced and continued in contravention thereafter. The trial was commenced

and continued in the absence of the necessary party and in the absence of any

of any direction by the trial court do so. Thus the court proceeded without

authority and that constituted a major defect, which went to the root of the trial. It

rendered the proceedings null and void. In the event the appeal succeeds. The

proceeding before the High court are declared null and void and are accordingly

set aside.

As regards costs Counsel for the appellant corporation asked ut to certify costs

for three counsel on the ground that the appeal raise d complicated issued and

that it involved that calling of a number of additional witnesses to give evidence

during the appeal.

Although a total of 13 grounds were argued namely grounds 3 and 4 These

grounds raise the issue of commencing and continuing the proceedings in the

absence of the necessary party i.e. the Attorney General. That issue had

264
surfaced from the very beginning. Indeed at some stage before the hearing

started the trial court had to rule, following representations from the Bar. That the

case be adjourned until the Attorney General was served. In other words the

necessity of having the Attorney General participating in the proceedings was

clearly seen and appreciated from the very start. However, as it transpired, the

Attorney General was never served and yet the trial commenced and proceeded

without any direction by the trial court to proceed without him

It ought to have been quite clear to the advocate preparing or counseling the

preparation of the memorandum of appeal that the Attorney General’s lack of

participation in the proceedings must be made a ground of appeal. Upon a

glance through he proceedings it should have been equally easy to see that the

appeal stood great chances of succeeding on that ground alone. In our

considered view it was not really necessary to mobilize or enlist the services of

three counsel to see or discover these points; a single advocate would do for the

purpose. It is on that account the unable to certify costs for three.

In the even their also the appeal with costs for the one counsel only.

DATED at DAR ES SALAAM this 26th day of October, 1995.

R. H. KISANGA
JUSTICE OF APPEAL

A.S.L. RAMADRANI
JUSTICE OF APPEAL

265
L.M/ MFAILA
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

M.S. SHANGALI
DEPUTY REGISTRAR

Right of Access to Justice

Door on matters of enforcement of the basic human rights enshrined in the
Constitution. This has been through enactment of Basic Rights and Duties
Enforcement Act, 1994, 20 An Act which introduced very cumbersome procedure
in human rights enforcement in the country. Originally, when the Bill of Rights
was legislated in the Constitution in 1984; it brought in Article 30 (3) which
opened a new arena for aggrieved persons and those likely to be aggrieved to
bring action in the High Court. Procedure relating to sub-article (3) are to be
regulated by an Act of parliament. It was until 1994 when such a law was
enacted. Its absence however, did not make the High Court hesitant to invoke
the jurisdiction conferred upon by Article 30 (3). The procedure which was
adopted suo motu by the High Court had been cruised as bogged down by
technicalities. One would expect the new law to cure this anomaly by following
examples from persuasive jurisdiction but to our bewilderment the Act rails off the
intended policy of Article 30 (3) and the Bill of Rights in general.

In relation the right to sue the government, in order not to be surprised by the
litigants, The Government Proceedings (Amendment) Act, 1994 requires an
notice of the intention to sue the Government t obe given not less than ninety
days before.

Peter Ng’omango

Versus

Gerson M.K Mwangwa and Another

The plaintiff, Peter Mgomango filed a suit against the principal of Mpwapwa
Teacher’s college, Mr. Gerson M.K.Mwangwa claiming shs. 2,201,762/= as
damages for malicious prosecution and defamation. The defendant applied to
have the government joined as co-defendant simply because he was a public
servant but the application was rejected by the court . Then the State Attorney I/c

266
of Dodoma Zone Mr. Mwambe duly instructed by the Attorney-General made as
similar application to have the Government joined as a co-defendant which was
also rejected. The court advised the parties that it would be beneficial to the
government only to provide necessary legal representation to that government
official. Finally the government was joined after proper third party Notice
Procedures were complied with.

Immediately after being joined as a co-defendant, the government raised an

objection to the effect that the suit was incompetent for want of Ministerial
consent under the Government Proceedings Act. 1967 The plaintiff replied by
arguing that the Act was unconstitutional and so void for the requirement of a
ministerial consent was inconsistent with the right to have free access to the
courts as enshrined in the Constitution under the provision of Articles 13(3);
13(1) (6) (a) and 30 (3) which provide inter alia, that the Civil rights, obligation
and interests of every persons shall be protected and determined by competent
courts of law; all persons are entitled to the protection of the law; all person are
entitled to a fair hearing; and thus if one feels aggrieved one may institute
proceedings for relief to the High Court.

The Attorney-General, for the government, submitted that the requirement of a

written permission was a mere procedural matter which did not take away the
right to sue the government, and in the alternative, if it so infringes, the Act is in
the Public interest thus saved by the derogation clause in

20 Act No. 33 of 1994

21 Act No. 30 of 1994
22 High Court of Tanzania at Dodoma. Civil Case No. 22 1992 ( Unreported).
Ruling delivered in chambers at Dodoma in the presence of the parties on 11th
December, 1992.
23 Act No. 16 of 1967.

Human Rights in Tanzania

Article 30 (1) and (2) of the Constitution. The issue, then, was whether the right
to have a free access to the courts for a remedy is infringed by the mere fact that
Section 6 of the Act requires a ministerial fiat for one to file a suit in court against
the government.

The plaintiff retorted that the ministerial fiat was not a mere procedural matter but
substantively restricts the right to free access to the courts; and the Act was not
in the public interest in that there was no need of having a fiat because, with all
attorneys, the government would be heard and defend itself. Also, the Act was
contrary to openness and transparency desired in a multiparty democracy.

The Court held that the Constitution recognizes the right of an individual to have
a free access to the Courts for a remedy; Section 6 of the Government

267
proceedings Act, 1967 which requires a ministerial fiat in order to sue the
government infringes the constitutional right free access to the courts for a
remedy; and that the Act was not in public interest, therefore unconstitutional and
void.

Ruling

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 Shs. 2,201,762/= as damages for malicious prosecution
and defamation. The defendat applied to have the government joined as co-
defendant simply because he is a public servant but I rejected the applicain.
Then the State Attorney I/c of Dodoma Zone Mr. Mwambe, duly 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. That he did and the government was
finally duly joined as the 2nd defendant

As expected, the 2nd defendant (the Government) in its written statement of

defense 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, 1967 In his reply the plaintiff has raised a
constitutional point to the effect that the Government Proceedings Acts,1967 as
amended by government proceedings (Amendment) Act, 1967 25 is
unconstitutional and os void. He said dthat it offends Articles 13 (3), 13 (6) (a)
and 30 (3) of our Constitution and so it should be declared void under Section 64
(5) of the Constitution as well as Section 5 (1) of Constitution (Consequential
Transitional provisions) Act, 1984 26 The Republic was represented by Mr.
Ndumgurku, State Attorney while the plaintiff argued the point in person.

The State Attorney, Mr. Ndunguru conceded that the constitutional point in
question was duly derved on him as required by Section 17A (2) of the Law
Reform “(Fatal Accidents ) Miscellaneous Provisions Ordinace, 1955 27 as
amended by Law Reform Reform (Fatal Accidens and Miscellaneous provisions)
Ordinance (Amendment) Act, 1991 28 So he said that he was qyute ready to
argue the point

The points raised by Mr. Nduguru were two – fold. First that assuming he the
right of an individual to have access to the courts is granted under Articles 1 (3),
13 (6) (a) and 30 (3)

24 Act No. 16 of 1967.

25 Act No. 40 of 1974.

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26 Act No. 16 of 1984
27 Chapter 360 of the Revised Laws of Tanzania Mainland
28 Act No. of 1991.

Right of Access to Justice

Of the Constitution, yet the Government Proceeding Act, 1967, has not infringed
the same. He said that Section 6 of the Government Proceeding Act, 1967,
which require a 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. He
contended that since it is only procedural matter, it sues not infringe the right of
access to the courts., He said that it is just like a procedure which is provide in
the Civil Procedure Code, 196629 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 that
defendant. In fine he argued that the requirement of fiat from the minister for
justice is not inconsistent with the right o have a free access to the courts.

Secondly. Mr. Ndunguru argued that 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 the Government Proceedings Act, 1967 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. First that
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 saved well. Secondly, the State Attorney argue that 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 fold 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 not be healthy if
the requirement of a ministerial fiat is abolished.

The plaintiff replied by stating that 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 sumit that the Government Proceedings Act, 1967 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,
the said 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

269
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 government.

Naturally the first question to be answered by this court s as to whether the right
of tree access to the courts for a remedy is recognized by our Constitution. It is
my finding that the right of an individual for free access to the courts is resigned
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 proved that if one feels that his
constitutional rights have been 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 envisaged 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 is a fir hearing by the court of law, which ones 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. That was the interpretation by the
European Court of Human Rights in the case of Golder v. U.K30 in respect of
Article 6 (1) of the European Convention for the protection of human Rights and
Fundamental Freedoms, 1950 which is worded in similar terms like our Article 13
(6) (a) of our Constitution. That Court invoked a purposeful construction instead
of a literal construction of the constitution. A distinguished English jurist Mr.
Anthony Lester, Q.C in the commonwealth law Bulletin I his article titled
“Preparing and Presenting a Human Rights Brief “31 I adopt that persuasive
authority by the European Human Rights Court. The above account amply
demonstrated that our Constitution recognizes the right of an individual to have a
free access to the courts for a remedy.

The next question is as to whether the right to have a free access to the courts
for a remedy is infringed by the mere fact that Section 6 of the Government
Proceeding Act, 1967 requires a ministerial fiat before one files a suit in court.
Counsel for the Republic Mr. Ndunguru argued strongly to the effect that the
constitutional right to have a free access to the courts for a remedy is not
infringed by the requirement of a ministerial fiat, because he said that was a
mere procedural matter while the right to file a suit is left intact. That problem
can only be answered by looking at the international human rights instruments
and other comparative jurisprudence. It is a general principle of law that the
interpretation of our provisions in the Constitution have to be make in the light of
jurisprudence which has developed on similar provisions in other international
and regions statements of the law. That was the view taken by Nyalali, C.L. In

270
the case of Attorney-General v. Lesinoi Ndeinai & Joseph Selayo Laizer and Two
Others 32 where he said:

On a matter of this mature 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.

The Tanzania Court of Appeal in the Case of D.P.P. v repeated the same view.
Ally Haji Ahmed and 10 Other 33 where the court emphasized that in interpreting
the Constitution the courts have to take into account the provisions of the
Universal Declaration of Human Rights, 1948 and other treaties which Tanzania
has ratified. That view is also in line with the HARARE Declaration Of Human
Rights issued at the end of a high level judicial colloquium of Commonwealth
judges on the tope of Domestic Application of international Human Rights Norms,
convened in Harare, Zimbabwe between 19th and 22nd April 1989. Our Chief
justice Hon. Mr. Francis Nyalali attended that colloquium. In their declaration they
endorsed the Bangalore Principles, 1988 to the effect that is it within the proper
nature of the judicial process for national courts to have regard to international
human rights norms (whether or not incorporated into domestic law) for the
purpose of resoling ambiguity or uncertainty in national Constitutions and
legislation. On the same point see Maxwell on the interpretation of Statutes 34
as well as the judgment of Lord Denning,. M.R. (as he then was) in the case of
R.v. Secretary of State for Home Affairs and Another ex parte Bhajan Singh 35
Now Tanzania has ratified the following international

30 (1975) European Court of justice, International Law Reports 57.

31 LESTER, Anthony, “Preparing and presenting a Human Rights Brief” Volume
Commonwealth law Bulletin, 1991, p. 1055
32 (1980) TLR 214
33 Court of Appeal of Tanzania Criminal Appeals No. 44 and 45 of 1985 (
Unreported).
34 (1969) 2nd Edition at p. 183.
35 (1975) A All E,R. 1081 at p. 1089.

And regional instrument, which provide for the right of free access to the courts
without any impediment: the Universal Declaration of Human Rights, 1948 in
Article 8, the African Charter on Human and People’s Rights, 1981 in Article 7 (1)
Which Tanzania ratified on 18th February. 1984; the International Covenant on
Civil and political Rights, 1966 in Article 2 (3) which Tanzania ratified on 11th
September, 1976. All those treaties ore instruments, including the impediment of
the requirement of a ministerial fiat. That was what was decade the European
Count of Human Rights in the Goder Case supra) The United National Human
Rights committee interpreting that right in the case of Wright v. Madagascar 36
held that right of access to the courts is infringed not only when an individual is

271
denied the right files suit, but also when restriction are imposed such that. the
right to file a suit is rendered illusory or is cumbersome. 37

That is not all, as we have also comparative jurisprudence. Nor them Ireland had
he Ministers and Secretaries Act of 1924 which was in pari material with our
Government proceedings Act, 1967 as it required the consent of the Attorney-
General before the government was sued. Te supreme Court of Northern Ireland
in the case of Masauley v. minister for posts and Telegraphs 38 held that the
provision reusing the consent of the Attorney-General was unconstitutional and
so void as I was in Brach of the citizen’s right to have access to the courts for a
remedy. Neared home we have the case from Uganda, the case of shah v.
Attorney-General (No. 2) 39 The matter there concerned the provision of Section
2 (1) of the Local Administration (Amendment) Act, 1969 No. 2 of 1969 of
Uganda) which imposed the requirement of a ministerial fiat before one could sue
the government. Justices Jones, Mead and Wambuzi unanimously held that the
provision in question was unconstitutional and void in that it purported to deprive
an aggrieved party of the protection of the law given by the Ugandan Constitution
in Article 8 (2) (a) which is the equivalent of our Article 13 (1) and (3) of our
constitution. Moreover a very powerful Commission known as the Nyalali
Commission I Book Three of its recommendations holds the view, that the
requirement of a ministerial fiat is unconstitutional because it deprives an
individual the right of a free access to the court, and accordingly it recommended
for its abolition 40

In the light of the reasons enumerated above, I am unable to agree with Counsel
for the Republic Mr. Nsunguru 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
caw of D,P.P v. Daudi Pete 41 held that a statute which infringed the basic
human rights is not void if the Republic proves that is it in public interest. The
Tanzania Court of Appeal made two guide-lines as

36 (1985) 2 Selected Decisions of the Human Rights Committee 151

37 See p. 45 of the Report of the proceeding of the judicial Colloquium in Harare,
Zimbabwe 19-22
April, 1989 published by the commonwealth Secretariat in November, 1989
38 (1966) :I.R. 345.
39 (1970) E.A 523 (Uganda)
40 See GOVERNMENT OF THE UNTED REPUBLIC OF TANZANIA The
Report and Recommendations of the Residential Commission on Single party or
multiparty system in Tanzania

272
1991on the Democratic system in Tanzania ,Dar es Salaam University press
1992 (Volume 3) at p. 30
41 Court of Appeal of Tanzania of Tanzania at Dar es salaam Criminal Appeal
No. 28 of 1990. Reopted in (1991) LRC (CONST) 553.

Human Right in Tanzania

Ti which law which infringed the basic human rights may be saved by the
derogation clause. First the law in question should make adequate safeguards
against arbitrary decisions. Secondly the sa8id law should not offend the doctrine
of proportionality or reasonableness that is the law should not be too broadly
drafted as to net the innocent and the offenders. I will discuss these two points
seriatim

The law which is alleged to have been saved by the derogation clause for being
in public interest, must have adequate safeguards against arbitrary deprivation of
basic human right. The Tanzanis court of Appeal in the Appeal in Daudi Pete
case quoted with approval the decision of the Supreme Court of India in the case
of Maneka Gandhi v. Union of India 42 to the effect that any law which does not
have adequate safeguards and effective control against arbitrary interferences
by public authorities whit the rights safeguarded is not law. A lawful law implies
compatibility with the ule of law. The privy Council in the case of ong Ah Chuan v.
Public prosecutor 43 made a similar remark. There fore it is not enough to have a
law, which does not have adequate, because it is not law at all – see prof.
H.W.R. Wade in his book Administrative law And Chief Justice Frances Nyalali
made a pertinent remark when addressing heliacal community at the University
of Dar es Salaam in 1985 on the topic” The Bill of Rights in Tanzania when he
said:

This overriding of rights and duties of the individual by 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 45

273
The European Court of Human Rights has also held in the Silver Case 46 that a
law that infringes basic human rights without any adequate safeguards against
arbitrary Action is not law Now a glance at the Government proceedings Act,
1967 will reveal that it si not a lawful law because it does not have any
safeguards against arbitrary action by the Minister for justice. The arbitrariness
and oppressive natre of the Government proceedings Act. 1967 has been
amply documented see Report of the Nyalali Commission. Book three 47 and the
L L. M. Dissertation of 985 by Law Lecture of the University of Dar es Salaam
Mr. M.K.B. Wambali titled “ The tort Liability of the Government in Tanzania The
Impact of the Government Proceeding Act 1967 on the Rights o Individual
Claimants 48 Firstly 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 of the minister. Thirdly, there are no guide-
lines laid down for the Minister to follow in 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 many
affect he period of limitation. Finally the consent requirement has an extremely
great likelihood of not serving the ends of justice, for how come that the
government is adjudge own course? The decisions will always be at the expense
of the individual rights. The procedure patently defeats the ends of justice.

42 (1978) 2 SCR 621.

43 (1981) A.C. 648 (PC) at pp. 669-671.
44. WADE, Henry W.R. Administrative Law, Oxford: Oxford University Press
1965, p. 37
45. This speech is reproduced in Volume 8 Dar es Salaam University Law
Journal, 1991, p. l.
46 (1983) 5 E.H.R.R. 347
47 GOVERNMENT OF THE UNTED REPUBLIC OF TANZANAI The Report and
Report and Recommendations of the Residential Commission on Single party or
Multiparty System in Tanzania 1991 on the Democratic System in Tanzania op.
cit., at p. 30.
48 Mimeograph (University of Dar es Salaam Main Library.

Right of Access to Justice

There can be no doubt that the ministerial fiat requirement has been used by the
government as a tool of oppression against the people it governs. That much has
been documented by Mr. Wambali in his dissertation. He found that one could
hardly make our tangible principles by which the minister for justice will be guided
in according 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

274
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 quainter 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 point of law. Another valid complaint to be discovered was he
length of time taken to deal with the application. It usually takes an unnecessarily
long time. He found that out of the 58 tort claims he studied, only 6 application for
consent were granted by he minister, that is about 10 per cent; and it took the
average of four years to reach the decision either way. Certainly that is an
inordinately very long time to reach decision. Taking into account the fact that the
period of limitation is three years for torts. The graphic account of Mr. M.K.B.
Wambali can also be seen in his paper he presented at the Seminar to
Commemorate 25 years of the Faculty of Law, held between 20th and 25th
October 1986 at the University of Dar es salaam titled “the Enforcement of the
Bill of Rights Against the Government”

Others to document the oppression rendered by the requirement of the

ministerial fist is Dr. Chris Maina Peter, a lecturer at the Faculty of Law of the
University of Dar es Salaam in his article “Five Years of the Bill of rights to
Tanzania Drawing a Balance sheet published in the African journal of
international and Comparative Law 49 where he states

The most conspicuous and frustrating among the rights denied to the citizen is
the right to sue the government. It seems as if the governments 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 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 our of court with the government. If
he insets 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.

Others who have made similar adverse remarks against the Government
proceedings Act. 1967 include prof. Issa G. Shivji in his article State and

275
Constitutionalism in Africa: A New Democratic Perspective in the International
Journal o the Sociology of law 50

And as I said earlier there are no safeguards and effective control against any
gross abuses that they may be committed by the Minister fro Justice. The State
Attorney Mr. Nduguru 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. Ndungure should respect the maxom “no research no right to
speak It is my finding that as the Government proceedings

49 See PETER, Chris Maina , Five years of Bill of Rights in Tanzania Drawing A
balance sheet” Volume 4 part I African journal of International and comparative
law, 1992 p. 131
50 Volume 18 international journal of the Sociology of law, 1990, p. 381 at 401

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 employd by the government to implement matters in public interest
should be no more than is reasonably necessary to achieve the legitimate aims.
In other words the government must show that the restriction imposed on a
basic human right is required by a compelling social need and that it is so
framed as not to limit the right in question more that is necessary or
proportionate to achieve a legitimate objective. The Court of Appeal of Cook
Islands in the case of Clarke v discusses the doctrine. karika 51 and by the
Supreme Court of Canada in the case of the Queen v. Big M Drug Mart ltd
(Others intervening)52 And Mr. Anthony Lester Q.C. in his article mentioned
above quotes a number of cases decided by the Supreme courts of many
commonwealth countries which consider the principle of proportionality to ve as
well established to be part of the public law or administrative law. In the U.S.A
the U.S Supreme recognized the principle of proportionality by the U.S Supreme
Court in case of procurer v. Martinez 53 While the European Court of Human
Rights has invoked that doctrine in outlawing laws going against basic human
rights in the Sunday Times Case 54
And the Sliver Case (supra). In England the doctrine of proportionality is
concussed in Halsbury’s laws of England 55 and see also the case of Johnston
v. Chief Constable of the Royal Ulster Constabulary. 56In Tanzania the doctrine
of proportionality was expounded by the Tanzania court of Appeal in the D.P.P
v. Daudi Pete case wherein it is stated that the law being defended for being in

276
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.

Now the Government proceedings Act, 1967 offends the doctrine of

proportionality because it is so broad such that is denies a 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. The State Attorney Mr. Ndungure argued that the
courts will be flooded with cases when the government is allowed to be sued
without fiat; and also that the government will not be able to function smoothly if
frivolous and vexatious case are freely allowed in courts against the government.
Such arguments are preposterous and without substance. Nearly all countries of
the Commonwealth have done away with the requirement of a ministerial fiat,
and they don’t face such problems as mentioned by the State Attorney. In fact in
one part of Tanzania that is in Zanzibar the right to sue the Government of the
United Republic without ministerial fiat is recognized and no problems mentioned
by the State Attorney are encountered there. In his article in the journal of the
judges and magistrates Association of Tanzania 57 the Hon Mr. Justice
Ramadhani (than Chief justice of Zanzibar) mentions three cases in which the
Union Government has been sued without the fiat

51 (1985)LRC(Const)732 (Cook)is,CA).
52 (1986) LRC) Const 332 (Can. SC).
53 (1074 416 US 396 at p. 413
54 (1979 2 E.H.R.R. 245
55 4th Edition Volume 51 at para 2.296
56 (1987 Q.B. 129 at p. 151
57 Volume 1 journal of the judges and Magistrates Association of Tanzania,
1989.p.1.

namely: Himidi Mbaye v. The Brigade commander of Nyuki Brigade (supra)

Shabani Khamis v. Samson Goa and Another (Supra), and Khalfan Abeid
Hamad v. The Director of Civil Aviation (Supra). In Zanzibar all what one has to
do before suing the government is to give a month’s notice to the government.

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That is a sufficient and reasonable restriction against suint the government. That
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 id 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.

The courts of course will always recognize that the State enjoys a “margin of
appreciation” in conforming their law and practice with the basic human rights.
But the government does not enjoy an unlimited margin of appreciation.
Ultimately it is for the Court to assess whether the reasons given to justify an
interference with the basic human right 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 restrictions on the
right to have free access to the courts is proportionate and closely tailored to the
aim sought to be achieved.

There is also another dimension. In view of the fact that Tanzanians of Zanzibar
can sue the Union government without a ministerial fiat, while their counterparts
in Mainland Tanzania cannot do that, a case is made out to the effect that the
government proceedings Act, 1967 infringes Article 13 (1) of our Constitution.
That Article provides:
All persons are equal before the law and are entitled without any discrimination,
to equal opportunity before and protection of the law.

Now the impugned law is discriminatory of the citizens of Mainland Tanzanite just
because of their “place of origin” see Article 12 (5) of our Constitution which
defines what discrimination means As the law now stands that the Tanzanians of
Zanzibar are more equal than the Tanzanians of the mainland. That is not a
healthy situation.

The practice of the requirement of a ministerial fiat before one can sue the
government, defeats the general spirit underlying the government proceedings
Bill of 1967. The statement of the objects and reasons of the Government
proceeding Bill of 1967 was said to be “That in a modern democratic State, it is
right that the government should be able to sue or be sued as if it were a private
person of full capacity. “And that the Bill sought to reform the law relating o civil
proceedings in courts by or against the government, as the law hitherto in

278
operation was “thoroughly outdated” 58 In its Fundamental Objectives and
Directive Principles of State policy the Constitution in Article 9 (1) (k) stated that
Tanzania is a democratic state. Then why did the governments out of the blues in
1974 by Government proceedings (Amendment) Act, 1974 59 re-introduce the
ministerial consent requirement when in 1967 it was stated to be undemocratic
and outdated? Is Tanzania not a democratic state now? And is t=it not axiomatic
that the law in question is outdated? That law finds its roots in ancient English
Constitutional mythology about the divine nature of kingship that the King can do
no wrong” and that the king cannot be sued” But that is

48 See Attornery-General Mr. Mark Bomani in Hansard Majadiliano ya Bunge

1967-Mkutano wa Nane-11th April to 18th, April, 1967 at p. 108
59 Act No. 40 of 1974.

279
An anachronism in a democratic state like Tanzania. Even in England itself the
position changed since 1947 whereby a citizen can sue the government as of
right. And nearly all the Commonwealth countries have done away with the
requirement of a ministerial fiat. Tanzania is an odd man out.

The requirement of a ministerial fiat militates against the principle of

accountability and the often quoted principle of openness and transparence of
the government. The Ontario Law Reform commission of Canada in its report
headed “Report on the Liability of the Crown, 1989” reported in the
commonwealth Law Bulletin said:

The present law governing liability of the Crown, in so far as it still provides
privileges and immunities not enjoyed by ordinary persons is inconsistent with
popular conception of government: Crown immunities are particularly contrary to
a deeply – held notion that the government and its – officials ought to be subject
to the same legal rules as private individuals and should be accountable to
injured citizen for its wrongful conduct. A key clement of this concept is the fact
that the application of ordinary principles of law to government id placed in the
hand of the ordinary courts, who are independent of government and therefore
capable of being relied upon to award an appropriate remedy to a person who
has been injured by unlawful government action 60

At the end of the day, the Ontario Law Reform Commission recommended the
abolition of the requirement of the ministerial fiat, as it was also found to be
inconsistent with the Canadian Charter of Rights and Freedoms.

In Tanzania under one-party democracy, the spurious justification for having a

requirement of the ministerial fiat, was espoused by same party fundamentalists
(Wakereketwe) who nursed the idea that the government under the leadership of
the Chama Cha Mapinduzi (C.C.M) party which had a clear and corrects ideology
had a greater public interest to preserve and a monopoly of what is good for the
country and therefore cannot be let to be scandalized in courts by individuals with
impunity. However that view cannot prevail now with the advent of multi-party
democracy will continue bit by bit to wrench away the mask of invincibility and
impenetrability that the government sought to wear for many years under one-
party rule.61 Thus the vulnerability of the government to give way for more
democratic institutions and norms has now been exposed.

280
In the final analysis, I find that Section 6 of the Government proceedings Act,
1967 as amended by Government proceedings (Amendment) Act, 1974 is
unconstitutional and so void. I so declare under Section 5 (1) of Constitution
(Consequential, Transitional and Temporary Provisions) Act, 1984 as well as
Article 64 (5)of the Constitution. For sure by this step, the C.C.M government will
rejoice because in the 1990 Election Manifesto, the said C.C.M government
pledged to get rid of all the problems that plague the people (kuwaondolea
wananchi mambo yote yanayowakera). The requirement of a ministerial fiat to
sue the government was one to those matters that has been plaguing he people.
Now this tool of oppression which the TANU government in 1967 said was
undemocratic and outdated is gone forever, and it is 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

60 Volume 16 No. 3 Commonwealth Law Bulletin. July, 1990 pp. 855-859 at p.

856
61 See the debates in parliament during the passing of the 9th Constitutional
Amendment Act of 1992

Right of Access to justice

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 safeguarded if they merely provided legal representation to the
defendant but they refuse, ad instead to e joined as co-defendants. In the cases
of Rev. Christopher. Mtikila v. The Editor, Business Times and Another 62 the
government tried to use that ploy of using the law as a sword to frustrate the
plaintiffs claims, but it was nipped in the bud by Samatta, J.K who held that the
government need not be joined as a co-defendant. In this respect Dr. Chris
Maina Peter in his article in African journal of international and Comparative Law
63
graphically illustrates the point raised 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 insist on being joined as a
respondent. Worse still, once the government, if joined, then it invokes the
requirements of the Government proceedings at its own request. This is

281
 exactly what happened in the case of Patrick Maziku v. G.A Sebabili and 8
others (supra).

However, in this case the ploy has boomeranged. The governments had been
hosted 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.

Pumbun and Another

Versus

Attorney-General and Another64

The appellants sought to sue the government in the High court to recover
damages for trespass, assault an conversion. The necessary. Fiat or consent
imposed by Section 6 of the Government Proceedings Act, 196765 had been
sought but was withheld. Upon consent being withheld the court was called upon
by the appellant to declare the relevant Section unconstitutional for it impedes or
obstructs access to High Court enshrined under Articles, 13 (3) and (6) (a) and
30 (3) of the Constitution. They further contended that Section 6 also infringes
Articles of the Constitution which make provisions for separation o powers,
namely Articles4 (1) 108 and 13 (6) (a) which generally confer jurisdiction on the
High court to hear and determine claims on the Basic Rights in a fair

62 High Court of Tanzania at Dar es Salaam, Civil Case No. 47 of 1992

(Unreported)
63 PETER, Chris Maina, “Five Years of Bill of Rights in Tanzania Drawing A
Balance-Sheet, opcit.
64 Court of Appeal of Tanzania at Arusha, Civil Appeal No. 32 of 1992 Reported
in (1993)2 LRC 317 (Coram: Kisanga J.A Mnzavas. J.A. and Mfalila J.A) Appeal
form the judgment and Decree of the High ‘Count of Tanzania at Arusha, Munuo

282
J. dated the 24th day of October, 1991 in Civil Case No. 31 of 1991 Done at Dar
es Salaam on 23rd day of July 1993 and delivered before the parties in August,
1993 by E. Nyamasagara, District Registrar of the High Court, Arusha. 65 Act No.
16 of 1967.

Human Rights is Tanzania

Hearing. And that the Act was discriminatory in that no such requirement of
consent is imposed in Zanzibar, which is also a part of the United Republic. And
lastly, the Section offended the principle, which requires the government to be
responsible and accountable to its people openly and with transparency.

The government argued adversely that the Section was not unconstitutional
because the complainant of the violation against the government has always
alternative remedies available to him such as orders of mandamus an certiorari;
and that the Section is justified on grounds of public interests because it enables
the government to regulated and control suits against it, it is a brake to a
floodgate of frivolous and vexatious litigations which would embarrass the
governments, and the government has the bigger responsibility of looking after
the wider interests of the society than an individual, thus the two can not be
treated equally.

The Court of Appeal held that Section 6 of the Government proceeding Act, 1967
violated the basic human right of unimpeded access to the court as guaranteed
in the constitution. On the issue of alternative remedies the court stated that the
relevant provision of the Constitution says that an aggrieved person may seek
redress in the High Court, and that this is without prejudice to any other public
interest in that it was apparently arbitrary for It did noy provide for any procedure
in the exercise the minister’s powers, or any time limit within which the minister is
required to give his decision, nor were thee proper safeguards against abuse of
the power

Judgment
Kisanga,J.A

The appellants in this case sought to sue the Government in the High Court to
recover damages for trespass, assault and conversion. The plaint allege, among
other things, that the necessary fiat or consent to sue the Government had been

283
sought but was withheld The requirement for consent to sue the Government is
imposed by Section 6 of the Government proceedings Act 196766 .as amended
by Government proceedings (Amendment) Act, 197467 (hereinafter to be
referred top simply as Section 6) upon consent being withheld therefore, the
High Court was called upon by the appellants to rule on the constitutionality of
Section 6 and to hold that that provision was null and void as against the
Constitution of the united Republic of Tanzania

The respondent Republic did not wish to file any written statement of defense to
the claim instead it lodged with the court a preliminary objection that the suit was
incompetent for want of the Attorney-General’s consent to sue the Government.
The case was then adjourned, upon application by Counsel, for written
submissions after which the Court (Munuo, J. Mrs.) Ruled that Section 6 was not
unconstitutional and proceeded to dismiss the suit as being incompetent. It is
from that ruling that this appeal now arises Arguing the appeal before us were
Mr. A. Mughwai, learned advocate, for the appellants, for the appellants and
Mrs. A. Sumari, learned State Attorney, for the respondent Republic.

In the course of hearing the appeal, and during the submission by Mrs. Suamri,
some doubt arose whether consent to sue had, in fact been sought and withheld
as claimed by the appellant’s Coursed. However, this doubt was resolved when
counsel for the appellants furnished the court with documentary evidence that
consent was in fact sough and refused. Upon receipt of this information Mrs.
Sumari stated that high to she had been acting on wrong information sought
from and supplied by the Attorney-General’s Chambers, Dar es salaam

66 Act No. 16 of 1967.

67 Act No. 40 of 1974.

That the appellants had not applied for any consent to sue the Government she
added that because of such misinformation she did not address the real issue
which was before the High Court, namely, the constitutionality of the requirement
of consent she had concentrated on the contention that the suit was incompetent
for want of consent. Asked what course she proposed to adopt now that she was
informed of the true position, she readily replied that the hearing of the appeal
should continue, adding that during the short adjournment she had prepared
herself sufficiently to respond to Mr. Mughwai’s submissions. On that not we
went on the complete the hearing of the appeal and to conclude the matter even

284
though we felt that the learned State Attorney needed more predation in order to
assist the Court in dealing with the appeal which raised an important
constitutional issue.

The memorandum, of appeal raised two grounds:

1. The Honourable judge erred in law in not determining the real

issue before the Court, i.e. The interpretation and Constitutionality
of the provisions of Section 6 of the government proceedings
(Amendment ) Act No. 40 of 1974 vis –a-vis the Constitution of
Tanzania .
2. The Honourable judge erred in failing to hold that Section 6
referred to in paragraph 1 herein is un-constitutional obsolete and
that where there is a dispute between a citizen and the Executive,
The executive cannot lawfully impede or obstruct access to High
Court.,

On the first ground that the trial judge failed to consider and determine the
issue before her, that is, the constitutionality of Section 6, we think that thee
is merit in the complaint. Upon reading her brief ruling on the matter,
covering just about two pages, it becomes apparent that the learned judge
either did not comprehend the issue before her or, if she did, she deliberately
evaded it. Paragraph 11 of the paint states, inter alia, that,

The plaintiffs will canted at the trial that it is not in law necessary to
obtain the fiat as such requirement is null and void as it seeks to
contravene the basic structure of the Constitution of Tanzania and
its specific provisions

And in his fairly detailed written submission to the Court, Counsel for the
appellants specifically called upon the court to consider the validity of Section
6 as against Articles 4 (1), 108 and 13 (6) (a) of the Constitution. These
Articles make provisons for separation of powers confer jurisdiction on the
High court to hear and determine complaints and provide for the basic right to
a fair hearing. Counsel had submitted that Section 6 contravened these
provisions of the Constitution and accordingly invited the court to declare that
Section null and void.

In disposing of the very briefly the trial judge simply said:

285
 Considering that the Government proceedings Act, 1974 was
properly enacted by Parliament as stipulated in Article 97 of the
Constitution of the United Republic of Tanzania it is sound law and
does not infringe the provisions of Article 13 and or Article 108 of
the Constitution.

In our view this was, to say the least, a very superficial way of dealing with the
issue which was before the court. For, the fact that Section 6 was duly
enacted by a competent Legislature is no answer to the question whether
that Section is valid or not as against the Constitution. It is one thing for a
provision of the law to be properly or validly enacted by competent legislature,
but quite another for it to be constitutional; the two are not the same.

The appellants did not allege or even suggest that Section 6 was improperly
enacted by the Legislature Their claim was that Section 6 although properly
and duly enacted by the Legislature, offended some provisions of the
Constitution, the supreme law of the land, It did so, the appellants continued,
in a number of ways, such as, by denying them the opportunity of having their
grievances heard and determined by the High Court which was duly vested
with such jurisdiction. Therefore what the appellants were asking for was a
declaration under Article 64 (5) of the Constitution that Section 6 was null and
void because it was inconsistent with the supreme law of the land. The
learned judge in merely stating that Section 6 was sound law because it was
properly enacted by a competent Legislature, did not address herself squarely
to that issue, and to the extent of such omission she was clearly in error.

The second ground is really an amplification of the first one. It specifies the
matters which the trial judge had failed to deal with and to decide upon. Mr.
Mughwai submitted that Section 6 is null and void and should be struck down
because it violated the guaranteed right, under the Constitution. Of
unimpeded access to the Courts to have one’s grievances heard and
determined. In this respect he specifically referred to Articles 13 (3) and (6)
(a) and 30 (3) of the Constitution, the provisions of which we reproduce herein
below for ease of refernce:

13.(3) The civil rights, obligations and interests of every person and of the
society shall be protected and determined by competent courts of law and
other state gences established in that behalf by or under the law.
(4)
(5)
(6) For the purpose of ensuring equality before the law, the state shall make
provisions

286
 (a). that every persons shall, when his rights and obligations are being
determined, be entitled to a fair hearing by the court of law or other body
concerned and be guaranteed the right of appeal or to another legal remedy
against the decisions of courts of law and other bodies which decide on his
rights or interests founded on statutory provisions

30. Where any person alleges that any provisions of this part of this chapter
or any law involving a basic right or duty has been is being or is likely to be
contravened in relation to him in any part of the United Republic he may
without prejudice to any other action or remedy lawfully available to institute
proceedings for relief in the High Court.

Learned Counsel submitted that the combined effect of violating these

provisions has far reaching consequences. It means that section 6 places an
obstacle or obstruction to access to the courts of law. The Section offends the
principle of separating of by power enabling the Government to be the judge
in its own cause. It also seeks to limit government liability at the expense of
the rights of the individual. It offends against the principle which requires the
Government to be responsible and accountable to its people. It goes against
the principle of openness or transparency.

Referring to Articles 30 (2) of the constitution which permits derogation from

human rights in certain circumstances, learned counsel was of the view that
Section 6 is not saved because it is too general it its application

Replying to those submission Mrs. Sumari supported the decision of the High
Court that Section 6 was not unconstitutional. If we understood her correctly
the thrust of he argument was that although Section 6 violated Articles 13 (3)
and 30 (30 of the Constitutions, that by itself did not make the said Section
unconstitutional because the complainant of the violation has remedies open
to hem, such as orders of mandamus and certiorari. |n other wards, if the
Government withheld the consent, the appellants could always seek remedy
for this by asking for an order of mandamus or certiorari compelling the
Government to give consent or not to withhold

Right of Access to Justice

With due respect to the learned state Attorney this amounts to evading the issue.
It does not really grapple with and answer the question before us. The argument
merely echoes the provisions of Article 13 (3) of the constitution. That Article
says that an aggressed person may seek redress in the High Court, and that this

287
is without prejudice to any other remedy which may be available to him, This
means that the complainant of a violation of a basic human right is free to seed
redress under Article 30 (3) although he could equally well have sought relief by
way of mandamus or certiorari. Therefore if the appellants in this case chose
the seed remedy, as they did under Article 30 (3) they were exercising their
constitutional right as to which procedure to follow in seeing redress. There can
be no justification whatsoever for saying that because Section 6 presents an
obstacle, the complainant of a violation of this basic human right should be
restricted to other forms of remedy. A complainant should be free to choose the
best method legally open to him to prosecute his cause.

In the instant case it was open to th3e appellants to proceed for redress under
Article 30 (3) of the constitution. Section 6 which denies them this constitutional
right cannot be said to be valid merely because the appellants could have
remedy elsewhere; that would amount to going round the problem instead of
striking at it directly against the Constitution itself.

Mrs. Sumari also claimed that Section 6 was justified on ground of public
interests. By this we understood her to say that the Section was saved by Article
30 (2) of the Constitution which permits derogation from basic human rights in
certain circumstance She contended that Section 6 was necessary because it
enabled the Government to regulate and control the suits which are brought
against it She was of the decided view that if Section 6 were to be removed, that
would open flood gates of frivolous and vexations litigation which would
embarrass the Government and take up much of its time that could be better
spent on matters connected with the development and welfare of the members of
the society generally. In this regard the learned State Attorney urged that the
Government and the individual are not and cannot be, equal because the
Government has the responsibility of looking after the wider interests of the
society at large.

On the material before us we have no difficulty in holding that Section 6 violated

the basic human right of unimpeded access to the court to have one’s grievance
heard and determined there. That right is guaranteed under Article 13 (3) and 30
(3) of the country’s constitution reproduced earlier in this judgment. Indeed the
Republic did not seriously dispute this ./ the main point of contention by the
Republic was that the violation did not invalidate Section 6 (the requirement of
consent to sue) because where such consent was withheld, the the victim was
not without remedy he could apply for orders of mandamus or certiorari
However, we have rejected that argument for the reason given earlier in this
judgment.

288
The more difficult question is whether Section 6 is saved by articles 30 or 31 of
the Constitution which permit derogation from basic human rights in certain
circumstances Article 31 Which relates to measures taken during the period of
emergency is obviously inapplicable here. And as far as Article 30 in concerned
only sub-article (2) is relevant it provides that:

30 (2) it is hereby declared that no provision contained in this part of this

constitution which stipulated the basic human rights freedoms and duties, shall
be construed as invalidating any existing law or prohibiting the enactment of any
law or the doing of any lawful Act under such law, making provision for:

(a) Ensuring that the rights and freedoms of others or the public interest are
not prejudiced by the misuse of the individual rights and freedoms;
(b) Ensuring the interests of defense, public safety, public morality, public
health, rural and urban development planning the development planning
the development and utilization of mineral resources or the development
or utilization of any other property in such manner as to promote the public
benefits.
(c) Ensuring the execution of the judgment or order of a court given or made
in any civil or criminal proceedings;
(d) The protection of the reputation rights and freedom of theirs or the private
lives of persons involved in any court proceedings, prohibiting the
disclosure of confidential information, or the safeguarding of the dignity
authority and independence of the courts;
(e) Imposing restrictions, supervision and control over the establishment,
management and operation of societies and private companies in the
country; or
(f) Enabling any other thing to be done which promotes enhances or protects
the national interest generally.”

This Court had occasion to deal with a similar situation in the case of D.P.P.v.
DaudI Pete where it considered the validity of Section 148 (5) (e) of the Criminal
procedure Act, 198568 which denied bail the accused in a criminal case in certain
circumstances. In that case it was recognized that because of the co-existence
between the basic rights of the individual and the collective rights of the society it
is common nowadays to find in practically every society limitation to the basic
rights of the individual So that the real concern today is how the legal system
harmonizes the two sets of rights, In trying to achieve this harmony, the view has
been that in considering any act which restricts fundamental rights of the
individual such as the right of free access to the court of law in this case the
court has to take into account and strike a balance between the interests of the
individual and those of the society of which the individual is a member.

289
Thus consistent with that approach. The Court in Pete’s case laid down that a
law which seeks to limit or derogate from the basic right of the individual on
grounds of public interest will be saved by Article 30 (2) of the constitution only if
it satisfies two essential requirement First, such a law must e lawful in the sense
that t it is not arbitrary It should make adequate safeguards against arbitrary
decisions and provide effective controls against abuse by those in authority when
using the law. Secondly the limitation imposed by such law must not be more
than is reasonably necessary to achieve the legitimate object. This is what is also
known as the principle of proportionality. The principle requires that such law
must not be drafted too widely so as to catch everyone including even the
untargeted members of the society. If the law which infringes a basic right does
not meet both requirements such law is not saved by Article 30 (2) of the
Constitution, it is null and void And any law that seeks to limit fundamental rights
of the individual must be construed strictly to make sure that it conforms with
these requirements otherwise the guaranteed rights under the Constitution may
easily be rendered meaningless by the use of the derogative of claw-back
clauses of that very same Constitution
We shall now apply the two tests to Section 6 to see if it is saved by Article 30
(2) of the Constitution. Section 6 provides that:
6. Notwithstanding any other provision of this Act no civil proceedings may be
instituted against the Government without the previous consent in writing of
the minister;

The Section carries a proviso which is not relevant to the facts of the present
case

68 Act No. of 1085.,

Right of Access to Justice

It is most apparent that the law is arbitrary. It does not provide for any procedure
foe exercise of the Minister’s power to refuse to give consent to sue the
Government. For instance, it does not provide any time limit within which the
Minister is to give his decision., which means that consent may be withheld for an
unduly long time. The Section makes no provision for any safeguards against
abuse of the powers conferred by it. There are no checks or controls whatsoever
in the exercise of that power, and the decision depends on the minister’s whims.
And to make it worse, there is no provision for appeal against the refusal by the
ministry go give consent. Such law is certainly capable of being used wrongly to
the detriment of the individual.

290
Turning now to the requirement that the law must not be drafted tow widely it so
obvious once again that Section 6 does not pass that test either. The Section
applies to all and sundry including even those against whom it was never
intended. If, as contended by Mrs. Sumare, the object is to exclude or discourage
the bringing of frivolous and vexations litigation against the Government it is not
shown how that object is achieved without also limiting the right of persons who
have genuine and legitimate claims against the Government.

Even if the limitation imposed by Section 6 could be selective, the pertinent

question to ask is whether there was really a compelling need for such limitation.
In other words, in what way is the limitation justified in public interest so as to
bring it within the purview of Article 30 (2) of the Constitution? As noted before,
Mrs. Sumari’s contention was that the lifting of the limitation will open flood gates
of frivolous and vexations suits against the Government such as to embarrass
the Government and to take up much of its valuable time which could be better
spent else how. But apparently anticipating Mrs Sumar, Mr. Mughwai in his
address earlier on had argued that there was no such limitation imposed in
relation to suits against local governments where the only requirement is a
month’s notice to sue, and yet the Courts have not been flooded with suits
against local government. When we asked Mrs. Sumarei to respond to that
argument she was ill at ease to do so.

On this same point Mr. Mughwai had submitted that the law in Zanzibar did not
impose such limitation and yet it is not show or claimed that the Courts in
Zanzibar have been flooded with frivolous and vexations litigation against the
Government. In another dimension the learned Counsel charged that in this
context Section 6 was discriminatory and hence unconstitutional . He referred us
to the decision of the High Court (Mwalusanya,J) in the case of Peter Ngomango
v. Gerson M. K. mwangwa and Another (supra) in which this same issue of
ministerial fiat or consent had been raised. There the learned judge cited three
cases of the Zanzibar High Court in which no consent. But only a month’s notice
was required to sue the union Government. The three cases are Himidi Mbaye v.
the
Brigade Commander of the Nyuki Brigade (supra) shabani Khamis v. Samson
Goa and Another (supra) and Khalfan Abeid Hamad v The Director of Civil
aviation (supra) Mwalusany, J. took the view that Section 6 was discriminatory in
as much as it imposed restriction based on which court, in the united Republic,
one goes to seek remedy against the Government of the same United Republic.
We entirely agree with the learned judge that this is volatile of Articles 13 (1) and
(2) of the constitution which provide that.

291
13.(1) all person are equal before the law and are entitled without any
discrimination, to equal opportunity before and protection of the law;
(2) Subject to this constitution no legislative authority in the United Republic shall
make any provision in any law that is discriminatory either of itself or itself or in its
effect.

On a similar reasoning we reject Mrs. Sumari’s submission that because the

Government is responsible for the wider interests of the society then it should
be place on an equal footing with an ordinary person . We can find no justification
for the distinction. We think that the equality before the law envisaged in Article
13 (1) above embraces not only ordinary person but also the Government and its
officials; all these should be subjected to the same legal rules.

While advancing the argument of a compelling need for limitation Mrs. Sumare
again claimed that the requirement of consent was necessary in order to give
Government the opportunity during which to study the proposed claims and
where arranged, to consider settlement our of Court. This, she said, spared the
Government of the embarrassment of appearing in court and saves its valuable
time to sever the wider public. We could find no substance in this argument. The
Government can achieve all this within the normal procedure of bringing civil
suits. Ordinarily before a person decides to sue the Government. There must be
some prior communication between the Peron intending to sue the Government
and the Government in which the fermer will have indicated sufficiently the
nature and grounds of his claim. Thus if the Government so wishes, it can assess
the claim and where warranted consider settlement out of court during such pre-
suit communication. The requirement of consent to sue is really not necessary for
the for the purpose of affording he Government time to assess the claim and
consider settlement out of court. On the other hand we agree with the learned
judge in Ng’omango’s case above that such restriction militates against the
principles of the good governance which call for accountability and openness or
transparence on the part of Government.

Therefore, unlike the learned judge from whom this appeal arises, we find that
Section 6 of the Government proceedings Act 1967 as amended by Section 6 of
Governments proceeding (Amendment) Act, 1974 is unconstitutional for the
reasons we have amply demonstrated above. the Republic has totally failed to
show that the said Section is saved by the provisions of the Constitution which
allow for derogation from basic human rights. In the circumstances we have no
alternative but to hold, in terms of Article 64 (5) of the constitution of the United
Republic of Tanzania that Section 6 for the Government proceedings Act, 1967
as amended by Government proceedings (Amendment) Act, 1974 id void. It is
accordingly struck down for being unconstitutional

292
The appeal is allowed with cast, and the preliminary objection having failed, the
suit is to proceed in accordance with the law

Himidi Mbaye
Versus
The brigade Commander of Nyuki Brigade 69

The plaintiff in this case, himidi Mbaye was suing for rent for four month; return
of pieces of furniture and other utensils; and compensation for the damage of this
house from the defendant. The facts of the case were not in dispute. What
complicated the case the legal personality of the defendant. The defendant was
the commander for the Nyuki Brigade in Zanzibar one of Brigades of the
Tanzania peoples Defense Forces (T.P.D.F.) is a department of the Government
of the United Republic of Tanzania and not of the Revolutionary Government
of Zanzibar. In addition, National Defense ( ulinzi wa taifa) is a Union Matter as
stipulated in the Constitution of the United Republic of Tanzania of 1977. thus,
the defendant is an officer of the Union Government

69 High court of Zanzibar at Zanzibar High court civil case No. 8

293
5 GROUNDS

1. Amri Juma & 15 others v Tha , Misc. Civil case No. 37

of 1980 HC at Dar-es-salaam
2. CCSU v Minster for civil service (1985 ) AC 385
3. . I.S Msangi v JUWATA & Anor. (1992 TLR 259 (CA)
4. Mwakibete v principal secretary & AG, civil Appeal No
27 of 1992
5. Sylvester Cyprian & 210 others v university fo Dar es
salaa. Misc. civil Application No 68 of 1994

294
 6. Tanzania Air service ltd v minister of labour & others
misc/ civil cause no. 1 of 1995

`504 ALL England Law Reports (1975) 1 All ER

one of the fractions which was not separated out died one would then have sub-s
(4) applying so as to make the whole of the three quitters which have not been
separated our deemed to be disposed of for the purposed of capital gains tax. It
seems to me that that is really a very odd use of these two subsections

295
It seems to me that that was not what was contemplated at all and that one is still
in the same dilemma and difficulty, because here the unseparated out three out
three quarter would then be the settled property and not a part of the settled
property because the life interest would have had no connection with the
separated out quarter. So I do not think counsel for the Crown’s counter attack
advances his position at all Accordingly it seems to me that the argument of
counsel for the Crown proves too much; if he were correct as I see it there
would not be any necessity for s 25 (12) at all

Therefore on those two short grounds but especially the first one namely that the
word part in my judgment properly includes and was obviously so far as I can see
having regard to the way in which sub-s (4) was framed intended to include a
fraction-the case for the trustees appears to me to be established and the
appeal of the Crown equally in my view is doomed to failure

Appeal dismissed

Solicitors: Solicitor of inland Revenue Stanley’s Simpson north agents for

Chapman

AMERICAN CYANAMID CO V ITHICON LTD

HOUSE OF LORDS
LORD DIPLOCK VISCOUNT KILHORNE LORD CROSS OF CHELSEA LORD SALMON AND LORD
EDMUND DAVIES
TH TH TH
12 14 November 1974 5 February 1975

Injunction – interlocutory – principle governing grant- prima facie case- serious

question to be tried – Unnecessary for application to establish prima facie case –
Open to court to con-seder whither on balance of convenience interlocutory
relief should be granted provided claim not frivolous or vexatious.

Injunction- interlocutory-principle governing grant – Balance of convenience -

matters to be considered by court in determining whether balance of
convenience lies infamous of granting or refusing relief

296
A company (Cyanamid) register a patent in the united kingdom for the use as
absorbable surgical sutures of filaments made of particular kind of chain polymer
known as a polyhydroxyacetic ester (PHE) the sutures were of a kind that
disintegrated and were absorbed by the human body once that had saved their
purpose the priority date of the patent was 2nd October 1964. At that date the
absorbable sutures commonly in use were made from catgut. A rival company
ethical were the main suppliers of catgut sutured in the United kingdom
Cyanamid introduced their patented product in 1970 and by 1973 had captured
some 15 per cent of the United Kingdom market for absorbable surgical suture.
In order to meet the competition from Cyanamid, Ethic on proposed to introduce
their own artificial suture (ALG) the chemical substance of which PHAE was
made was a photopolymer whereas the substance of which XLG was made was
a copolymer. In

HL American Cyanamid v Ethicon

a. March 1973 Cyanamid brought a quiet timer action against Ethicon,

claiming an injunction to restrain a threatened infringement of their patent
by supplying XLG sutures to the surgeons in the United Kingdom , and
gave notice of motion for an interlocutory injection At the hearing of the
motion a large body of conflicting affidavit evidence was advance by both
parties on the issue whether the use of XLG as an absorbable surgical
suture would constitute an infringement of Cyanamid ‘s
b. Patent. The patent judge held that on the available evidence Cyanamid
had made out a strong prima facie case against Ethicon and that on a
balance of convenience an interlocutory injection on an undertaking in
damages by Cyanamid, should be granted to maintain the status quo
between the parties pending the trial of the action. On appeal, the Court
of Appeal reversed that decision on the ground that on the evidence
Cyanamid had not made out a prima facie case of infringement and
c. That there was a well established rule of la hat a court was precluded from
granting an interlocutory injunction or from considering the balance of
convenience between the parties unless the evidence adduced at the
hearing of the application satisfied the court on the balance of probabilities

297
 that at the trial the plaintiff would success in establishing his right to a
permanent injunction. Cyanamid appealed.
d. Held – the appeal would be allowed and the order of the patent judge
restored for the following reasons (i) The grant of interlocutory
injections 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 see p 508 j to p 509 a, p 510
b to d and f and p 512 f to j, post). (ii) The affidavit evidence showed that
there were serious question to be tried and hat it was therefore necessary
that the balance of convenience should be considered.
e. The factors which the judge had properly taken into account in considering
the balance of convenience were that Ethicon which had a dominant
position in the market for absorbable surgical sutures, had not yet put
XLG sutures on the market whereas Cyanamid were in the course of
establishing a growing market in PHAE sutures in competition with
Ethicon’s catgut sutures; if Ethicon were allowed to market XLG sutures,
Cyanamid if ultimately successful in proving infringement
f. Would have lost its chance of continuing to increase it share in the total
market for absorbable sutures. There were no grounds for interfering with
the judge’s assessment of the balance of convenience or with the
discretion that he had exercised in granting the injection (see p 511 g to
p 512 j, post)
Notes
For the principles governing the grant of interlocutory injunctions see 21
halsbury’s laws )3rd
Edn) 364-366 paras 763-766 and for cases on the subject see 28 (2)
Digest (Reissue) 968-980
6j-161

g. For interlocutory injunction to restrain infringement of patent, see 29

Halsbury’s lawa )rd
Edn) 105 para 216 and for cases on the ground for granting or refudin
interlocutory injunction, see 26 Degest (Repl) 979-987, 3229-3317.

Cases referred to in opinions

Donmar Production ltd v Bart (1964) (1967) 2 All ER 338, (1967) I WLR
740, Digest (Cont Vol C) 174, J3ia

298
506 All England Law Reports (1975) 1 All ER

Harman pictures NV v Osborne (1967 2 All ER 324 (1967) I WLR 723, Digest
(Cont Vol C) 174, 731b
Hubbard b Vesper (1972) I All ER 1023, (1972) 2 QB S4 (1972)
RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR
RRRRRRRRRRRRRRRRR.

Appeal
This was an appeal by American Cyanamid co (Cyanamid ) against an order of
the court of Appeal (Russell, Stephenson LJJ and Foster J) dated 5 the February
1974 Cyanamid were granted and interlocutory injection against the respondents

299
Ethicon LTD (Ethicon) restraining them from infringing Cyanamid’s letters patent
1,043,518 The facts are set our in the opinion of Lord Dip lock
Adrew J. Batespm QC and David Young for Cyanamid
Steph Gratwick QC and GD paterson fro Ethicon

Their Lordships took time for consideration

5th February. The following opinions were delivered

LORD DIPLOCK. My lords this interlocutory appeal concerns a patent for

polymer known as a polyhydroxyacetic ester (PHAE). These are sutures a of a
kind that disintegrate and are absorbed by the human body once they have
served their purpose. The appellants (Cyanamid) an American company are the
registered proprietors of the patent. Its priority date in the United Kingdom is 2nd
October 1964. At that date the absorbable sutures in use were of natural origin.
There were made from animal tissues popularly known as catgut The
respondents (Ethicon) a subsidiary of another American company were the
dominant suppliers of catgut sutures in the United Kingdom market.

Cyanamid introduced their patented product in 1970. The chemical substance of

which it si made is a homopolymer, i.e. all the units in the chain except the first
and the last (the end stabilizers) consist of glycoside radices. Glycolide is the
radical of glycolic acid, which is another name for hydroxyacetic. By 1973 this
product had succeed in capturing some 15 per cent of the United Kingdom
market for absorbable surgical sutures. Faced with this competition to catgut,
Ethicon who supplied 80 per cent of the market were proposing to introduce their
own artificial suture (XLG). The chemical substance of which it si made is not a
homopolymer hut a copolymer, i.e. although 90 per cent by weight of the units
in the chain consist of glycoside radicals, the remaining ten per cent are lactide
radicals which are similar in chemical properties to glycoside radicals but not
identical in chemical composition.

Cyanamid contend that XLG infringes their patent, of which the principal claim is
A sterile article for the surgical repair or replacement of living tissue, the article
being readily absorbable by living tissue and being formed from a
polyhydroxyacetic ester. As is disclosed in the body of the patent, neither the
substance PHAE nor the method of making it into filaments was new at the
priority date. Processes for manufacturing filaments from PHAE had been the
subject of two earlier United States

HL American Cyanamid v Ethicon (Lord Diplock 507

300
a. patents in 1953 (Lowe) and 1954 (Higgins). The invention claimed by
Cyanamid thus consisted of the discovery of a new use for a known
substance. On 5th March 1973 Cyanamid started a quia timet action
against Ethicon for an injunction to restrain the threatened infringement
of their patent by supplying sutures made of XLG to surgeons in the
United Kingdom. On the same day they gave notice of motion for an
interlocutory injunction. Voluminous affidavits and exhibits were
b. filed on behalf of each party. The hearing of the motion before Graham J
lasted three days. On 30th July 1973 he granted an interlocutory injunction
on the usual undertaking in damaged by Cyanamid Ethicon appealed to
the Court of Appeal. The hearing there took eight day. On 5th February
1974 the Court of Appeal gave judgment. They allowed the appeal and
discharged the judge’s order Leave to appeal from that your Lordship
House granted decision. It was estimated that the hearing in this House of
the appeal at which leave to accuse more affidavit evidence was to be
sought would last 12 days. The question whether the use of XLG as an
absorbable surgical suture is an infringement of Cyanamid’s patent
depends on the meaning t be given to the three words a
polyhydroxyacetic not only in narrower meaning of a homopolymer of
which the units in the chain. Apart from the end stabilizer, consisted solely
of glycolic radicals but also in the broader meaning of copolymer of which
up to 15 per cent of the units in the chain would be lactate radicals; and
that what was said in the body of the patent made it clear that in the
words were used in this wider meaning
c. Ethicon’s first contention is that the words a polyhydroxyaceti ester in the
principal claim bear the narrower meaning only viz that they are restricted
to a homopolymer of which all the units in the chain except the end
stabilizers consist of glycoside radicals. In the alternative, as commonly
happens where the contest is is between a narrower and a wider
meaning in a patent specification they attack the validity of the patent, if it
bears the wider meaning on the grounds of inutility insufficiency unfair
basis and false suggestion. These objection are really the obverse of their
argument in it of the narrower construction. They are all different ways of
saying hat if the claim is construed widely it includes copolymers which
will not have as servile sutures the characteristics described in the body of
the patent. Ethicon also attack the validity of the patent on the ground of
obviousness
d. Both Graham J and the Court of Appeal feat constrained by authority to
deal with Cyanamid claim to an interlocutory injunction by considering first
whether on the whole of the affidavit evidence before them prime facie
case of infringement had been made out. As Russell LJ put it in the
concluding paragraph of his reasons for judgment with which the other
member of the court agreed
e. I there be of prima facie case on the point essential to entitle the plaintiff
to complain of the defendant’s proposed activities that is the end of the
claim to interlocutory relief prima facie case any in same being used by

301
 Russell LJ is apparent from an earlier passage in his judgment. After a
detailed analysis of the more conflicting expert testimony he said
f. I am not satisfied on the present evidence that on the proper construction
of this specification addressed as it is to persons skilled in the relevant art
or science, the claim extends to sterile surgical sutures produced not only
from a homopolymer of glycoside but also from a cop polymer of glycoside
but also from a copolymer of glycoside and up to 15 per cent of lactide.
That is to say that I do not consider that a prima facia case of infringement
is established

508 All England Law Reports (1975) 1 All ER

In effect what the Court of Appeal was doing was trying the issue of infringement
on the confliction affidavit evidence as it stood: If we had to give judgment in the
action now without any further evidence we should hold that that Cyanamid had
not satisfied the onus of proving that their patent would be infringed by Ethicon’s
selling sutures made of XLG The court of Appeal accordingly did not find it
necessary to go into the questions raised by Ethicon as to the validity of the
patent or to consider where the balance of convenience lay.

Graham J had adopted the same approach as the Court of Appeal; but on the
same evidence he had come to the contrary conclusion on the issue of
infringement He considered that on the evidence as it stood Cyanamid had
made out a strong prima facie case that their patent would be infringed by
Ethicon’s selling sutures made of XLG He then went on to deal briefly with the
attack on the validity of the patent and came to the conclusion that on the
evidence before him none of the grounds of invalidity advanced by Ethicon was
likely to succeed . He therefore felt entitled to consider the balance of
convenience. In his opinion. It lay in favor of maintaining the status quo until the
trial of the action. So he granted Cyanamid an interlocutory injunction restraining
Ethicon from infringing the patent until the trial or further order.

The grant of an interlocutory injunction is a remedy that is both temporary and

discretionary. It would be most exceptional for your Lordship to give leave to
appeal to this House in a case which turned on where the balance of
convenience lay. In the instant appeal. However, the question of the balance of
convenience although it had been considered by Graham J and decided in
Cyanamid’s favour, was never reaches by the Court of Appeal. They considered
that there was a rule of practice so will established s to constitute a rule of law
that precluded them from granting any interim injunction unless on the evidence
adduced by both the patties on the hearing of the application the applicant had
satisfied the court that on the balance of probabilities the acts of the other party
sough to be enjoined would if committed, violate the applicant had to prove

302
before any question of balance of convenience arose was prima facie only in
the sense the conclusion of law reached by the court on that evidence might
need to be modified at some later date in the light of further evidence either
detracting from the probative value of the evidence on which the court had acted
or proving additional facts. It was in order to enable the existence of any such
rule of law to be considered by your Lordships House that leave to appeal was
granted

The instant appeal arises in a patent case. Historically there was undoubtedly a
time when in an action for infringement of a patent that was not already well
established whatever that may have meant any interlocutory injunction to restrain
infringement would not be granted if counsel for the defendant stead that it was
intended to attack the validity of the patent.

Relics of this reluctance to enforce monopoly that was challenged, even though
the alleged grounds of invalidity were weak are to be found in the judgment of
Scranton LF as late as 1924 in Smith v Gregg ltd but the elaborate for the
examination of patent specifications by expert examiners before a patent is
granted, the opportunity for opposition at the stage and the provisions fro appeal
to the patent Appeal Tribunal in the person of a patent judge of the High Court,
make the grant of a paten nowadays a good prima facie reason in the true sense
of that term, for supposing the paten to be valid and have rendered obsolete the
former rule of practice as respects interlocutory injunctions in infringement
actions. In may view the grant of interlocutory injunctions in actions for
infringement of patents is governed.
HL American Cyanamid v Ethicon (Lord Diplock 509

a. by the same principle as in other action. I turn to consider what those

principal are My Lords. When an application for an interlocutory injunction
to restrain a defendant from doing acts alleged to be in violation of the
plaintiff’s legal right is made on contested facts the decision whether or not
to grant an interlocutory injunction has to be taken at a time when ex
hypotheses the existence of the right the existence of the right or the
violation of it or both is uncertain and will remain uncertain until final
judgment
b. is give in the action. It was to mitigate the risk of injustice to the plaintiff
during the period before that uncertainty could be resolved that the
practice arose of granting him relief by way of interlocutory injunction but
since the middle of the 19th century this has been made subject to his
undertaking to pay damaged to the defendant for any loss sustained by
reason of the injunction if it should be held at the trial that the plaintiff had
not been entitled to restrain the defendant from doing what he was
threatening to do. The object of the interlocutory injunction is to protect the
plaintiff

303
 c. against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were
resolved in his favour at the trial but the plaintiff need of the defendant to
be protected against injury resulting from his having been prevented from
exercising his own legal rights fore which he could not be adequately
compensated under the plaintiff undertaking in damaged if the uncertainty
were resolved in the defendant’ favour at the trial The court must weigh
one need against another and determine where the balance of
convenience lies. In those cases where the legal rights of the parties
depend on facts that are in dispute between them the evidence available
to the court at the hearing of the
d. application for an interlocutory injunction is incomplete. It is given on
affidavit and has not been tested by oral cross-examination. The purpose
sought to be achieved by giving to the court deviation to grant such
injunction would be stultified if the discretion wee clogged by a technical
rule forbidding its exercise if on that incomplete infested evidence the
court evaluated the chances of the plaintiff ultimate success in the action
at 50 per cent or less but permitting its exercise if the court evaluated his
chances at more than 50 per cent
e. The notion that it is incumbent on he court to undertake what is in effect a
preliminary trial of the action on evidential material different from that on
which the actual trial will be conducted is I thin of comparatively recent
origin though it can be supported by references in earlier cases to the
need to show a probability that the plaintiff is entitled to relief (Preston v
luck per cotton LJ) or a strong prima facia case that the right which he
seeks to protect in fact exists (smith v Grigg ltd per Atkin LJ). These are to
be contrasted with expressions in to her cases indicating a mush seek
onerous criterion such a the need to show that a probability rp a strong
prima facie case applied only to the establishment by the plaintiff of his
right and that the lesser burden of showing an arguable case to be triad
applied to the alleged violation of he right by the defendant (don mar
productions ltd v bart4 per ungoed Thomas J Harman pictures NV v
Osborne per Goff. The suggested distinction between what the plaintiff
must establish as respects his right and what he

Must show as respects its violation did not long survive. It was rejected it by the
court of Appeal in Hubbard v Vosper – a case in which the plaintiff entitlement to
copy right was undisputed be an injunction was refused despite the apparent
weakness of the suggested defense Te court however expressly deprecated any
attempt to fetter the discretion of the court by laying down any rules which would
have the effect of limiting the flexibility of the remedy as means of achieving the

304
object that I have indicated above Nevertheless this authority was treated by
Graham J and the Court of Appeal in the instant appeal as leaving intact the
supposed rule that the court is not entitled to take any account of the balance of
convenience unless it bas first been satisfied that if the case went to trial on no
other evidence than is before the court at the hearing of the application the
plaintiff would be entitled to judgment for a permanent injunction in the same
terms as the interlocutory injunction sought.

Your Lordships should in my view take this opportunity of declaring that these is
no such rule. The use of such expressions as a probability a prima facie case or
a strong prima facia case in the context of exercise of a discretionary power to
grant an interlocutory injunction leads to confusion as to the object sough to be
achieved by his form of temporary relief The court no doubt must be satisfied
that the claim is not frivolous or vexation in other would that there is a serious
question to be tried.

It is no part of the court faction at this stage of the litigation to try to resolve
conflicts of evidence on affidavit as to facts on which the claims of either party
may ultimately depend nor to decide difficult question of law which call for
detailed argument and matter consideration. These are matters to be dealt with
at the trial. One of the reason for the introduction of the practice of requiring an
undertaking as to damages on the grant of a an interlocutory injunction was that
it aided the court in doing that which was its great object, viz abstaining from
expressing any opinion upon the merits of the case until the hearing of the
application for an interlocutory injunction fails to disclose that the plaintiff has any
real prospect of succeeding in his claim for a permanent injunction at the trial the
court should go on to consider whether the balance of convenience lies in favour
of granting or refusing the interlocutory relief that is sought.

As to that the governing principle is that the court should first consider whether if
the plaintiff were to success at the trial in establishing his right to a permanent
injunction he would be adequately compensated by an award of damages for the
loss he would have sustained as a result of the defendant continuing to do what
was sought to be enjoined between the time of the application and the time of the
trial If damages in the measure recoverable at common law would be adequate
remedy and the defendant would be in a financial position to pay them no
interlocutory injunction should normally be granted however strong he plaintiff
claim appeared to be at that stage If in the other hand damages would not
provide an adequate remedy for the plaintiff on the event of his succeeding at
the trial the court should then consider whether on the contrary hypothesis that
the defendant were to succeed at the trial in establings his right to do that which
was sought to be enjoined he would be adequately compensated under the
plaintiff undertaking as to damages for the loss he would have sustained by
being prevented from doing so between the time of the application and the time
of the trial If damaged in the measure recoverable under such an undertaking
would be an adequate remedy and the plaintiff would be in a financial position to

305
pay them there would be no reason this ground to refuse an interlocutory
injunction

HL American Cyanamid v Ethicon (Lord Diplock)

It is where there is doubt as to the adequacy of the respective remedies in
damages available to either party or to both that the question of balance of
convenience arises it would be unwise to attempt even to list all the various
matters which may need to be taken into consideration in deciding where the
balance lies let alone to suggest the relative weight to be attached to them These
will vary from case to case Where other factors appear to be evenly balance it is
a counsel of prudence to take such measures as are calculated to preserve to
starts quo. If the defendant is enjoined temporarily from doing something that he
has not done before the only effect of the interlocutory injunction in the event of
his succeeding at the trial is to postpone the date at which he is able to embark
on a course of action which he has not previously found it necessary to
undertake; whereas to interrupt him in the conduct of an established enterprise
would cause of action which he has not previously found it necessary to
undertake; whereas to interrupt him in the conduct of an established enterprise
would cause much grater inconvenience to him since he would have to start
again to establish it in the event of his succeeding at the trial.
Save in the simplest cases the decision to grant or to refuse an interlocutory
injunction will cause to whichever party is unsuccessful in the application some
disadvantages which his ultimate success at the trial may show he ought to have
been spared and the disadvantages may be such that the recovery of damages
to which he would to which he would then be entitled either in the action or under
the plaintiff undertaking would not be sufficient to compensate him fully fro all of
them. The extent to which the disadvantages to each party would be incapable of
being compensated in damaged in the event of his succeeding at the trial is
always a significant factor in assessing where the balance of convenience lies
and if the extent of the uncompressible disadvantage to each party would not
defer widely it may not be improper to take into account in tipping the balance the
relative strength of each party case as revealed by the affidavit evidence
adduced on the hearing of the application; This however should be done only
where it is apparent on the facts disclosed by evidence as to which there is no
credible dispute that the strength of one party case is disproportionate to that of
the other party. The court is not justified in embarking on anything resembling a
trial of the action on confliction affidavits in order to evaluate the strength of either
party case.
I would reiterate that in addition to those to which I have referred, there may be
many other special factors to be taken consideration in the particular
circumstances of individual cases. The instant appeal affords one example to

306
this. Returning therefore to the instant appeal it cannot be doubted that the
affidavit evidence shows that thee ate serious questions to be tried Grham J and
the Court of Appeal have already tried the question of infringement on such
affidavit evidence as was available and have come to contrary conclusions
Grham J has already also tried the question of invalidity on these affidavits and
has come to the conclusion that the defendant grounds of objection to the patent
are unlikely to succeed so it was clearly incumbent on him and on the court of
Appeal to consider the balance of convenience
Graham j did so and came to the conclusion that balance of convenience lay in
favour of his exercising his discretion by granting an interlocutory injection As
paten judge he has unrivalled experience of pharmaceutical patents and the way
in which the pharmaceutical industry is carried on Lacking in this experience an
appellate court should be hesitant to overrule his exercise of this discretion
unless they are satisfied that the has gone wrong in law.
The factors which he took into consideration and in my view properly were that
Ethico suture XLG were not yet on the market so they had no business which
would be brought to a stop by the injunction no factories would be closed and no
workpeople would be thrown out of work They held a dominant position in in the
United Kingdom market for absorbable surgical sutures and adopted an
aggressive sales policy Cyanamid on the other hand were in the course of
establishing growing market in PHAE surgical sutures which competed with the
natural catgut sutures

512 All England Law Reports (1975) 1 All ER

marketed by Ethicon If Ethicon were entitled also to establish themselves in the

market for PHAE absorbable surgical suture until the action is tried which may
not be for two or three years yet and possibly thereafter until the case is finally
disposed of on appeal Cyanamid even though ultimately successful in proving
infringement would have lost its chance of continuing to increase its share in the
total market in absorbable surgical sutures which the continuation of an
uninterrupted monopoly of PHAE sutures would have gained for it by the time of
the of the expiry of the patent in 1980. it is notorious that new pharmaceutical
products used exclusively by doctors or available only on prescription take a
long time to become established in the market that much of the benefit of the
monopoly granted by the patent derives from he fact that the patented product
ios given the opportunity of becoming established and this benefit continues to
be reaped after the patent has expired in addition there was a special factor to
which Graham J. attached importance established and this benefit continues to
be reaped after the patent has expired.
In addition there was a special factor to which Graham J. attaché importance
This was that once doctors ad patients had got used to Ethicon product XLG in
the period prior to the trial it might well be commercially impracticable for
Cyanamid to deprive the public of it by insisting on a permanent injunction at the

307
trial owing to the damaging effect which this would have on its goodwill in this
specialized market and thus on the sale of its other pharmaceutical products.
I can see no ground for interfering in the learned judge’s assessment of the
balance of convenience or for interfering with the discretion that he exercised by
granting the injunction. In view of the fact that there are serious question to be
tried on which the available evidence is incomplete conflicting and untested to
express an opinion now as to the prospects of success of either party would only
be embarrassing to the judge who well have eventually to try the case. The
likelihood of such embarrassment provides an additional reason for not adopting
the course that both Graham J and the Court of Appeal thought they were bound
to follow, of dealing with the existing evidence in detail and giving reasoned
assessments of their view as to the relative strengths of each party’s cases.
I would allow the appeal and restore the order of Graham J

VISCOUNT DILHORNE. My Lords, I have had the advantage of reading the

speech the speech of my noble and learned friend, Lord Diplock. I agree with it
and the this appeal should be allowed and the order of Graham J restored

LORD CROSS OF CHELSEA. My Lords, for the reasons given by my noble and
learned friend Lord Diplock in his speech, which I have had the advantage of
reading in draft, I would allow this appeal

LORD SALMON. My Lords, for the reasons given by my noble and learned
friend , Lord Lord Diplock, and for the reasons he gives I would allow the appeal
and restore the order of Graham J.

LORD EDMUND-DAVIES. My Lords, for the reasons given by my noble and

learned friend, Lord Diplock I would also allow this appeal

Appeal allowed

Solicitors: Allen and Overy (for Cyanamid ); Lovell, White and King (for Ethicon)
Gordon H Scott Esq Barrister

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: NYALALI C.J. OMAR, J./.. AND RANDANI J.A.

CIVIL APPEAL NO. 20 OF 1990,
BETWEEN

THE ASSISTANT IMPORTS CONTROLIER

(B.O.T) MWANZARRRR..APPELIANT

AND

308
MAGNUM AGENCLES COMPANY LIMITEDR RESPONDENT

(Appeal from the Ruling/Decision of the

High Court of Tanzania at Mwanza)
(Mwalusanya, J.)

dated the 13th day of July, 1989

in Kiscellaneous Civil Cause No. 16 of 1989

JUDGEMENT OF THE COURT

RAMADHANI, J.A;

This is an appeal against an order of mandamus which was granted by the High

court of Tanzania at Mwanza (Mwalusanya, J.) complling the Assistant Imports

Controller (B.O.T,) the appellant here, to extend the duration of the import license

he had issued to Magnum Agencies Co. Ltd the respondent.

It was alleged that the respondent on the 9/8/1988 was issued with an import

license for 5,000 arête of beer from Kenya. (We purposely use the word alleged

for reasons which will become evident later on) The expiry date was 9th January

1989 the respondent brought 800 crates of beer and before he could bring the

remaining lot, which he had already pied for the license for reasons not

necessary to go into expired. The request for the extension of time was turned

down, The respondent after obtaining leave applied for and was granted an order

of mandamus

309
What transpired at the high court is very material for the determination of this

appeal so we might as well delve into that at this jointure.

The application was called for mention on 5/7/1989 when the3 appellant then the

respondent was absent while the present respondent then the applicant was

represented by Mr. Matata learned Counsel On the day of the hearing that is

11/7/1989 the appellant was reprinted by one Mr. Bwiro who mere likely than not

was then the Assistant Imports Controller Mr. Matata made a submission to

which Mr. Bwire replied despite his confession that he was not a lawyer He was

not sworn and in his submission he referred to a number of documents which

definitely were not tendered as exhibits nor is it clear that the court had even a

glance at them.

Before us the respondent continued being represented by Mr. Matata wile the

appellant was advocated for by Mr. Marando learned Counsel

This Mr. Marando made an informal application under Rules 3 (2) and 45 (3) (a)

of the Tanzania court of “Appeal Rules 1979 supported by the affidavit and the

documents that were attached therewith which we have already alluded to

above be admitted by this court as part and parcel of the of appeal He contended

that these do not qualify as additional evidence since the contents had already

been present before the High court bence his non-reliance on Rule 34 which

deals with Power to re-appraise evidence and to take additional evidence Go

ever after suggestion from the bench he came round to acknowledge that Rule

34 is the relevant one But then the question came the affidavit and the

documents are to be admitted as additional to what pre-existing evidence

310
Without going into his locals standing it is glaring us that whatever Mr. Bwire had

said cannot be christened

Evidence for that matter Mr. Marando agreed that there was no evidence

adduced even on behalf of the respondent Mr. Marando submitted that the

proceedings before the High court was a nullity and prayed that they be quashed.

Mr. Matata was very affirmative that the proceedings were sound and proper. He

said that what had been known as prerogative writs are now provided for by the

Law Reform (Fatal Accidents and Miscellaneous provisions) Ordinance, cap.

360 as amended by Act No. 55 of 1968 Section 18 thereof empowers the chief

justice to make rule of court prescribing the procedure to be followed. He pointed

out that there have not yet been made. He then went on to describe the

procedure now in practice and that is the file statements in support of an

application for an order. Eventually Mr. Matata bowed to the directions of the

court that affidavit are necessary and he was positive that he had filed one at

the High court. He was given time to dig it out from the recerd. When the court

re-convened Mr. Matata humbly but rightly so concede that there was no affidavit

and that the proceedings before the High court were null and void.

As properly pointed out by Mr. Marando the application which is the subject of

this appeal involved matters of both fact and law The question of law was

whether or not the appellant could be compelled to extend the duration of the

import license. This called for legal submission of advocates. But that stage

could only be arrived at after the court court had been satisfied tha an import

licence had as a matter of fact. Been issued to the respondent that it had expired

311
that a request for its extension had been made and that it had been refused .

These are matters of evidence and unfortunately none had been deposed either

through witnesses or by affidavits. The submissions by Mr. Matata at the hearing

of the application were not evidence and as already pointed out, Mr. Bwire too

did not give any

Thus as the learned judge did not have a factual basis for arriving at the decision

he did the proceedings were and were hereby declared null and void and are

quashed

Mr. Marando prayed for costs he submitted that even without the suggestion of

the court he already had as his first ground of appeal the failure of the learned

trial judge to see that the pleadings and been completed and to take evidence on

earth on the part of the respondent. We concede that and we allow the appeal

with costs.

Before we close there is another procedural matter, which has to be brought to

the attention of the courts ad advocates. We have seen that the application for

leave to apply for the order was instituted thus

RRRR.

In the matter of an Ex-parte Application for leave

To apply for an order of Mandamus

MAGNUM AGENCLES COMPANY LIMITED

Versus

THE ASSISTANT IMPORTS CONTROLLERR RESPONDENT

312
BANK OF TANZANIA MWANZA

But the proper instauration should have been as explained in Mohamed Ahmed

v. R. (1957) E. A. 523 at 524 and Farmers Bus Service an Others v. The

Transport licensing Appeal board (1959) E.A 779 at 781.

DATED at MWANZA this 30th day of November 1990.

F.L. NYALALI
CHIEF JUSTICE

A.M.A OMAR
JUSTICE OF APPEAL

A.S.L. RAMADHANI
JUSTICE OF APPEAL

I certify that this is a true copy of the original

(L.B. KALEGEYA)
SENIOR DEPURY REGISTRAR

C.A. FARMERS BUS v TRANSOPRT LICENSING (FORBES, Ag. P.) 779

FARMERS BUS SERVICE AND OTHERS v. THE TRANSPORT

LECENSING APPEAL TRIBUNAL

B. COURT OF APPEAL AT NAIROBI( Forbers, Ag.P, Wendham J.A and

Templeton J. August 5 and 21 1959

CIVIL APPEAL NO. 63 OF 1959

(Appeal from H.M Supreme Court of Kenya-Rudd and MacDuff, JJl)

Practice- Application for prerogative order- Crown practice-Proceedings in-
correctly intituled –how such proceedings should be intituled

313
The Supreme Court of Kenya dismissed an application by the appellants for an
order of certiorari directed to the Transport Licensing Appeal Tribunal, but gave
condition leave to appeal. The appeal having been lodgedn the appellants then
moved the appellate court to vary the order of the Supreme Court so that leave to
appeal might become unconditional. At the hearing of this application which was
refused the court commented on the form of the proceedings and the headings of
the application to the Supreme Court and of the appeal and

Held: prerogative ordes are issued in the name of the Crown and applications for
such orders must be correctly instituted.

Mohamed Ahmed v.R.(1957) E.A) followed

Order that the notice of appeal and other documents be amended as shown in
the ruling.

Case referred to
Mohamed Ahmed v. R. (1957) E.A. 523 (C.V.)

M. Kean for the appellants.

F. De F. Stratton (Crown Cousel, Kenya) for the respondent/
P.J.S. Hewet for interested parties

August 21 FORBES, Ag, P., read the following ruling of the court this was an
application by the appellants (hereinafter referred to as the applicants) in an
appeal which is pending before this court. The appeal is against an order of the
Supreme Court dismissing with costs an application for an order of certiorari
directed to the Transport Licensing Appeal Tribunal relating to certain road
service licenses which had been granted to the applicants. The application to this
court was for variation of the order of the Supreme Court granting leave to appeal
so that leave might be unconditional the order of the transport licensing Appeal
Tribunal as confirmed by the Supreme court stayed and the licences in question
remain in force as originally granted pending the hearing of the appeal We
refused the application with costs but undertook to give a ruling on a matter of
form

The applicants number nineteen in all and for the sake of brevity they will be
referred to in the forms below as (the applicants) where in the actual form the
names were or should be set out in full. The record of the appeal, which was
before us (Mr. Kean flr the applicants intimated that a supplementary record
would be filed in due course) does not contain the original application to a judge
of the Supreme Court for leave to apply for an order of certiorari in pursuance of
r. 1 of O. LIII of the Civil and in the matter of: An application for an order of
Certiorari directed to The Transport Licensing Appeal Tribunal

1 to 19 the application)

314
Similarly the present record does not contain a copy of the notice of motion for
the order of certiorari but from the formal order embodying the decision of the
Supreme court on the motion it would appear that the heading of the motion of
motion was the same as that of the application for leave to apply which is set out
above. From the judgment of the Supreme Court it would appear that the appeals
before the Transports licesnsing Appeal Tribunal to which the application related
are Nos. 11 to 6 inclusive, 30,32-35 inclusive 37,41-43 inclusive and 46-48
inclusive, all of 1958

The appeal to this court is headed

1
(to) the application
19 and
Appellants
The Transport licensing Appeal Tribunal RRRRRRRRRR Respondents
In our opinion the forms of heading used are incorrect. This court had occasion to
comment on the forms to be used in applications for probative orders in
Mohamed Ahmed v. r. (1), 1957 E.A 523 (C.A) In that case the then learned
presedint of the court after setting out the forms of heading employed in that case
and accepting as correct the form of heading for the ex parte application to a
judge for leave continued (at p. 524).

This recital reveals a series of muddles and errors, which is not unique in
Unganda and is attributable to laxity in practitioner’s offices and in some
registries of the High Court. The appellants advocate appears to have failed
entirely to realise that prerogative orders like the old prerogative writs are
issued in the name of the Crown at the instance to the applicant and are directed
to the person or persons who are to comply therewith Applications for such
orders must be instituted and served accordingly The Crown cannot be other
applicant and respondent in the same matter

When proceedings in the high Court by originating summons or origination

motion are interring parts it is not sufficient to institute them as In the matter of
etc. This must be followed by the names of the applicants and respondents if
this had been done in this case the error would have been obvious on the draft.

There is no material difference between the rules relating to prerogative orders in

force in Uganda and those in force in Kenya. The ruling in Mohamed Ahamed (1)
case therefore applies in Kenya and following that ruling, we are of opinion that
the ex parte application for leave to apply for an order should (on the assumption
that the applicants could properly join in one application have been intituled:

315
C.A. FARMERS BUS v. TRANSOPRT LICENSING (FORBER, Ag. P) 781

In the matter of an application by (the applicants ) for leave to apply for an order
of Certiorari and In the matter of Appeals No. 11 to 6 inclusive 30,32-35 inclusive,
37.39 41-43 inclusive and 46=48 inclusive all of 1958 of the Transport Licinsin
Appeal Tribunal.

We may say we entirely agree with the view expressed by the learned judges of
the Supreme Court that the application concerned nineteen separate and distinct
appeals which should not have been joined in one application. As in Mohamed
Ahmed’s (1) case if the proper form had been used, the error would have been
obvious.

Leave having been granted, the notice of motion should have been instituted

“R
v
The Transport Licinsing Appeal Tribunal

Ex parte
(the applicants)

So far as the appeal to this court is concerned, the persons really interested in
resisting the appeal are the Overseas Touring Co. (E.A) Ltd and the Kenya Bus
Services Ltd., who were the objectors before the Transport Licensing Appeal
Tribunal. In the circumstances we think they should be added o the heading as
interested parties. The appeal should therefore be instituted

“R. RRRRRRRAppellant
v.
The Transport Licensing Appeal Tribunal RRRRRRRR.RRRRR.
Respondents
and
The Overseas Touring Co. (E.A. Ltd. RRRRRR.. interested parties
The Kenya Bus Services Ltd.
Ex parte
The applicants
The notice of appeal and other documents in the appeal should be amended
accordingly .
Ordre that the notice of appeal and other documents
Be amended as shown in the ruling

Advoctes: Sirley & Kean, Nairobi (For the applicants); the Attorney –General
Kenya (for the respondent) Daly & Figgis, Nairobi (for the interested parties)

316
78 TANZANIA LAW REPORTS (1987) T.L.R

A appellants but somehow he was not so tried. Had he been tried the too my
have had his own share to make good the loss. On the whole it is not possible to
apportion the amount of compensation nor do I consider it fair and just, on the
evidence available to rest it wholly and squarely on the shoulders of these two
appellants.

B. For these reasons I will set aside the order of compensation. Subject to the
law governing limitation of actions I leave it to the complainant should he feel
disposed to do so to follow up the matter in a Civil Court of competent
jurisdiction.

C. All in all, save for the ordr of compensation which has been set aside, this
appeal fails and it is hereby dismissed

Appeal
dismissed

D. HANS WOLFGANG GOLCHER v GENERAL MANAGER OF

MOROGORO CANVAS MILL LIMITED (HIGH COURT OF TANZANI
(Maina.J.)
20 August, 1987 – DAR ES SALAAM

Civil practice and procedure – Temporary injunction – Application for - Notice of

such application to the opposite party – Whether mandatory Civil practice and
procedure – Temporary injunction – Application for- principles for granting
application

317
Civil practice and procedure- Temporary injunction-Application to issue pending
hearing of intended application for orders of certiorari and mandamus- No
application for leave to apply for orders sought and obtained.- Whether
temporary injunction may issue

Administrative law – prerogative orders – Application for temporary injunction

pending hearing of intended application for orders of certiorari and mandamus –
No application for leave to apply for orders sought and obtained – Whether
temporary injunction may issue.

H.W. GOLCHER V. MANAGER (MCH) Maina, J)

79

This was an application to set aside an ex parte temporary injunction issued by

the HIGH Court against the applicant who was the General manager of Morogoro
Canvass Mill Ltd and the Derector of Immigration Services. The full set of facts is
in the ruling

Held: (i).The rule that the court shall in all cases except where it appears that the
objet of grating the unjunction would be defeated by the delay before grating a
injunction direct notice of the application to be given to the opposite party, is
mandatory
(ii). if the opposite party can be served without delay as was the position in his
case an exparti injunction should be issued;
(iii) in all application for prerogative ordrs such as certiorari and mandamus leave
must be sought and obtained before the application for any prerogative order is
heard;
iv. Since no leave to apply for the prerogative orders of certiorari and mandamus
had been obtained the temporary injunction cannot stand
v. The ex-parte temporary injunction was issued against know principle
governing temporary injunctions. It cannot be said that the respondent has
suffered irreparable injury which cannot be adequately compensated by an
award of damages for breach of contract

Application succeeds:

Cases referred to:

1. Noormohamed janmohamed v. Kassamalli Virji Madhani (1953) 20 EACA
8
2. Davan v Bhadreasa and Another (1973) EA 358
3. Alfred Lakare v. Tow Director Arusha (1980) TLR 326
4. Giella v. Cass man Brown and Co. Ltd (1973) EA 358.

318
Maina ,J This is an application to set aside the ex-parte temporary injunction
dated 28 April, 1987 issued by this court against the applicant who is the General
Manager of Mororgoro Canvas Mill Ltd, and the Director of Immigration Service.

The respondent was an employee working for Morogoro Canva Mill Ltd, as
Financial Controller. The annexure to this application show that the contract of
service was between the respondent and Hebox Holland Engineering B.V The
respondent was assigned by he box to work for Morogoro Canvas Mill Ltd On 1
April 1987 He box wrote a letter to the respondent informing

80 TANZANIA LAW REPORTS _________________ (1987)

T.L.R

Him that his contract of employment was to terminate on 30 April 1987 and would
not be renewed. The respondent also received a letter dated 10 April 1987 form
the applicant dismissing the respondent form his duties with immediate effect
There was another letter (annexure E to the affidavit) which instructed the
respondent to vacate the house he was occupying not later than 30 April 1987

The above events led to the filing og the application by the respondent for orders
of cetiaorari to quash the decision of the General Manager, and mandamus to

319
compel the applicant General Manager to hear the respondent in accordance
with rules of natural justice and for an injunction to restrain applicant from
harassing him.

On 20 April 1987 the matter came before the Hon. Jaji kiongozi who issued an
ex-parte temporary injunction restraining the Director of Migration services from
deporting the respondent pending the hearing of the case and also restringing
the applicant from evicting the respondent from his quarter during the tendency
of the case. It was Mr. Uzanda’s submission that the temporary injunction was
incompetent because it was in breach of order 37 Rule 3 of the Civil Procedure
Code which provides as follow;

The court shall in all cases except where it appears that the object of granting
the injunction would be defeated by the delay before granting an injunction direct
notice of the application for the dame to be given to the opposite party.

The above rule is I think mandatory. If the opposite party can be served without
delay an ex-parte injunction should not be issued in theis connection, Mr.
Uzanda referred the court to two decisions of the court of Appeal In
Noormohamed Janmohamed v. Kassamali Birji Madhani (1953) 20 EACA 8 at
page 11 the court said

The requirement to give notice is clearly mandatory and it cannot be disputed

that the onus of satisfying the court that there s a good cause for dispensing with
it will lie upon the applicant

The decision in the Noormohamd case was followed in the latter case of Davan.
V. Bhadreassa and Another (1972) EA 23 in which the parties were living in the
same premises, and therefore there would have been no difficulty in serving the
opposite party with the chamber summons. The ex-parte interim injunction was
set said. In the present case thee is no dispute that the respondent is living near
the applicant house and had this been raised at the hearing of the application for
temporary injunction the court would have required notice to be served on the
opposite party.

Furthermore there was no application made no reasons were given and also no
order was made dispensing with the requirement of giving notice to the opposite
party Mr. Massate concede that in the affidavit filed in support of the application
for temporary injunction thee was no mention made for dispensing with notice.

He also concede that Order 37 Rule 3 of the Civil procedure code is mandatory
However he said that the matter was urgent and the service to the opposite party
would have caused delay With respect I do not agree. The respondent knew that
the General Manager was living in the same neighborhood of the respondent
house I do not see what delay would have been caused by sending notice to the
applicant Mr. Massati also said that the application to dispense with notice can

320
be made informally. But with respect there was not even an informal application
to dispense with notice The letter to the Registrar of the High Court that the
matter was urgent was not in my view an application to dispense with notice to
the opposite party That letter merely asked for an early hearing Mr. Massatio
submitted further that he could not ask for notice to be served to the opposite
party because the application for leave to apply for orders of certiorari and
mandamus had not been heard in all application for prerogative orders such as
certiorari and mandamus leave must be sought and obtained before the
application for any prerogative3 order is heard in my view the application
temporary injunction could only be made where leave had bee granted in this
case when the application for temporary injunction was heard no leave to apply
for certiorari and mandamus had been grated by the court. It seems to me that if
the court had been told on 28 April 1987 that in fact leave had not been granted
to apply for certiorari and mandamus the application for temporary injunction
would not have been entertained The court proceeded with the hearing of that
application on the assumption that leave to apply for orders of certiorari and
mandamus had been granted Sicnce such leave had not been obtained the
temporaty injunction cannot stand and for thar reason alone the temporary
injunction would be set aside

I would go further an say that the temporary injunction

321
H.W. GOLCHER V. MANAGER (MCM) (Maina J.)
83

So there appears to be no contract of service between the respondent and

Morogoro Canvas Mill Ltd.
The applicant’s letter dismissing the respondent from his employment is of no
effect whatsoever. The position appears to be that Hebox informed the
respondent that the responds contract of service would expire on 30 April 1987
The application to quash decision of the General Manager Morogoro Canvas Mill
Ltd is to me meaningless because the General manager had no power to dismiss
the respondent who has been notified earlier by his employer that the contract of
service would expire on a specified date

As for mandamus, I agree that the applicant General Manager has no pubic duty
to perform/ In Halsbur Laws of England volume eleven. Third Edition paragraph
172 at page 54 the learned author states as follows.

Mandamus will lie towards any person or body in respect of anything which
appertains to his or their office and in the nature of public duty.

The applicant General Manager has no public duty to perform with respect to the
respondent’s employment I agree with Mr. Uzanda that neither certiorari nor
mandamus can lie. Furthermore mandamus cannot lie where there is some
other legal remedy available. See Alfred Lakaru v. Town Director Arusha (1980)
TLR 326 at page 327 In my view the application for certiorari and mandamus has
no possibility of success

Finally I do not think that respondent can say that he has suffered irreparable
injury which cannot be adequately compensated by an award of damages He
can file a suit against his employer for damages for breach of contract. That is a
legal remedy available to him

For these reasons the application succeeds. The temporary injunction dated 28th
April 1987 is set aside The respondent shall bear the applicant’s costs.

322
82 TANZANIA LAW REPORTS (1987)
T.L.R

Against the Director of Immigration Services was incompetent for another

reason. As Mr. Uzanda submitted the Director for Immigration Services was not a
party to these proceedings He was a stranger to the case. The ex-parte injection
was made against a stranger Mr. Massati conceded but said that the court had
discretion under section 95 of the Civil procedure code to make the order. I do
not agree. Section 95 gives inherent powers to the court to make such orders as
may be necessary for the ends of justice or to prevent abuse of the process of
the court. It does not empower the court to make orders against stranger to the
case. There are provisions in the Civil procedure code for joined of parties and
Mr. |Masati could have applied for the Director of Immigration Services to be
joined as a parety to his application and then ask for orders against the Director
This was not done and I do not see how the injunction against the Director of
Immigration Services who was not a party to the case can be supported.
The temporary injunction against the Director of Immigration Services can be set
aside for another reason. Mandamus can only lie against the Director it it were
shown that he had been r3equested failed or refused to perform those duties.
There is no such allegation in this case. As Mr. Salula learned State Attorney
submitted on behalf of he Director of Immigration Service the respondents
employment ceased the residence permit he hold is invalid. The respondent has
not asked for another permit. If the respondent applies for another permit in
another class that would be considerd by the authorities to enable the
respondent finalise his affairs in this country.
Another point raised by Mr. Uzanda was that the ex-parte temporary injunction
was issued against know principle governing temporary injunction. Learned
counsel submitted that an application for an interim injunction must establish
prime facie case with a probability of success and that the facts must show that if
a temporary injunction is not granted the applicant would suffer irreparable injury
which cannot be adequately compensated by an awards of damages. He cited
the case of Giella v. Cassman Brown and C. Ltd (1973)Ea 358 at page 360 It
was Mr. Uaznd’s submission tha in this case neither certiorari nor mandamus can
lie. I do not wish to restate the facts of this case. All I can say is that it appears to
me from the affidavits and the annexure that the respondent was employed by
Hebox Holland Engineering B.V and was only assigned by Hebox to work for
Morogoro Canvas Mill Limited

323
IN THE HIGH COURT OF TANZANIA
AT DAR ES SALAAM
MISCELLANEOUS CIVIL CAUSE NO. 37 OF 1980

In the matter of an application by AMRI JUMA & 15 others for orders of

Certiorari and Mandamus

And

In the matter of the decision of the Labour Concilliston Board. Temeke District
under the Security of Employment Act Cap 574

BETWEEN
AMRI JUMA & 15 OTHERSRRRRRRRRRR APPLICANTS
AND
1. TANZANIA HARBOURS AUTHORITYS
2. LABOUR CONCILIATION BOARD TEMEKE DISTRICT )
RESPONDENT

RULING
MAPIGANO j. – This is an application by AMRI JUMA and fifteen others for an
order of certiorari to bring up and quash the decision of the conciliation Board at

324
Temeke, Dar es salaam, delivered in 15/5/80 affirming the termination of the
services of the applicants in reference y the applicants against the termination
and for an order of mandamus direction the said Board to hear and determine the
reference in accordance with the law and the principle of natural justice.
The history which brings this application was narrated in detail by the applicators
before the Board and recorded down copy of the record has been annexed to
this application as s=exhibit C It is not necessary I think to reproduce it here/.
Suffice it to say that the applicants were employed on various jobs and on
different shifts by the Tanzania harbors Authority in the Tanzania Harbors
Authority in Dar es salaam They had what can be described as long standing
grievances against their employer. With singleness of purpose in an endeavor to
have their problems solved they had made numerous excursion to high and low
places there was an occasion when they called at the state House in the hope of
seeing His Excellency the president hew was not around and they were instead
received by the minister of state one Abdullah Natepe. It would appear that at all
those places their complaints were being bucked down the line where they were
either accorded a velvet gloved reception or treated with crisp offialese It was all
for naught on 5.4.80 their employment was terminated in interests of efficiency of
the Authority. They were aggrieved by the said termination and they sent out to
challenge it with a view to reinstatement
What happened later had been recounted at fairly great lengthe in the affidavit
sworn by one of them sinasudi Omari He deposed inter alia:

5. That being aggrieved by the said termination the applets reported to

jumuiya ya wafanyadazi wa Tanzania (JUWATA) cha chama cha
mapinduzi (c.c.m) Branches of the work place on or around 8th April, 1980
6. That both the said Branches advised the applicants to take their terminal
benefits and them pursue their demands at the District level
7. That on or around 29th April, 1980 the applicants filled in the necessary
forms to made a reference to the labour conciliation Board Temeke
District

325
 8. That on 15th May 1980 the applicants arrived at the labour office in
Temeke for the hearing of their reference. While they were waiting outside
the office of Mr. Njonjo, a labor officer and chairman of the said
conciliation Board, Messrs J.N. Msangi and A.A Diwani the
representatives of the Tanzaina Harbours Authority and messrs Saidi
Mwinchande and J,S Kinyogoli the Chairman and the Secretary of the
JUWATA Branch at the work place respectively arrived and went straight
into Mr. Njonjo office Mr. Njonjo took them to the room where the said
conciliation eventually held the hearing After a few minutes messes C.S
chambo and M.M Hassani the members of the said Board arrived and
went into the said room.
9. That the said representatives of the Tanzania Harbours Authority spent
some twenty minutes closeted in the said room discussing with the
members and the chairman of the said Board before three applicants
were called in the rest to the applicants were waiting outside.
10. That the applicants wee never informed of what transpired during their
absence (referred to in paragraph 9 above) and behind their backs
between members of the Board including the chairman and the
representatives of the Tanzania Harbours Authority.
11. That on 15th May 1980 the said conciliation Board after hearing decided
that the termination of employment of the applicants was right and
justified. The said decision is annexed herewith and marked Exhibit B.

According to the annexure three reasons were given by the Board in support of
their decision namely:
1. that the termination was in the interests of the harbour’s efficiency and
productivity as wee as the economy of the country
2. that the applicants’ procession to the state house was an unlawful and
dangerous oat and

326
 3. that the reference was in any event incompetent and misconceived on the
ground that the applicants had already received their terminal
emoluments

Four ground have been urged for this application The first is that the Board failed
to follow the principles of natural justice. The second is that the Board exceeded
its jurisdiction and failed to act judicially. The third is that the decision of the
Board was unreasonable and manifestly unjust. And the last ground is that the
decision of the Board displays manifest errors of law on its face. Some of these
grounds are certainly interrelated and intertwined.

Mr. Shivji; counsel for the applicants appeared before this court to amplify on
those grounds He opened his address by observing that the Board was a quasi-
judicial body and, therefore that its proceedings were subject to judicial review by
certiorari but counsel for the first respondent (the Tanzania Harbours Authority)
Mr. Adubakar. Contended rather tepidly to the contrary he sought to impeach the
competence of the application by arguing that it is premature on the ground that
the applets have not exhausted their right of further reference to the minister as
provided for by the statute. To that Mr. Shivji was quick to reply that the
applicants are not seeking to challenge the decision on merit but on the basis
that the decision was a millity at law. In this opinion there is no decision at all to
take o the ministers.

It is beyond question that the discharge by a Board of its functions under the
provision of the security of Employment Act, 1964 as amended by Act No.1 of
1975 constitutes an activity of a quasi-judicial character and it follows that the
process of certiorari applies to its acts if a case is made out. As counsel for the
Authority undoubtedly knows the writ of certiorari has its history in England. It is
a writ directed to an inferior court of record commanding it to certify to the King
or Queen in the High Court of Justice some matter of judicial character. It is
therefore used to remove civil causes indictments from any inferior court of

327
record into the High court that they may be better tried or if there has been abuse
or error. Retried. And as Lord Denning said in the Northumberland case (1952 1
all E R 122 at 129 the court of King’s Bench has from very early times exercised
control over the orders of any statutory tribunal just as it has done over the
orders of justices to keep it within its jurisdiction and to correct their errors of law
on the face of the record. I would therefore hold that the present application is
competent and justifiable by this court.

With regard to the contention that the Board did not observe the principles of
natural justice, Mr. Shivji has drawn the attention of this court to paragraphs 8 –
10 of Omari’s affidavit which aver that some discussion took place between the
representatives of the Tanzania Harbours Authority and members of the Board in
the absence of the applicants. He also charged that the Board failed to hold
due and proper judicial inquiry in that it did not call any evidence or elicit any
information touching on the question of efficiency and productivity of the Harbour.

With regard to the second ground i.e. excess of jurisdiction the learned counsel
charged first that the Board took extraneous and irrelevant matters into
consideration namely the alleged unlawful procession to the State House and
secondly that in any event it was wrong for the Board to find the applications
guilty of disciplinary offences which were neither specified or particularized

As regards the third ground about the unreasonableness of the decision he

submitted that there was no factual basis for the finding that the continued
employment of the applicants would adversely affect the efficiency and
productivity of the harbour,

And on the question of errors of law he pointed out that the board’s decision
reflected the following errors on its face
1. that the visit by the applicant to the state House was an unlawful
procession or demonstration and

328
 2. that the application has no right of reference simply because they had
already taken their terminal benefits

Mr. Abubadar’s address was very brief. He supported the decision of the Board
saying that it was on the whole fair. He implicitly concede that a certain
conversation had taken place between the members of the Board ad the
representatives of the Authority In his opinion that was objectionable but not fatal
especially he said considering that the applicants were subsequently accorded a
full hearing by the Board. And as we have already seen it was also his opinion
that this application was premature and incompetent.

The tete ar tete between members of the Board and the representatives of the
Authority was doubtlessly improper disconcerting and objectionable According
to the applicants that discussion took some twenty minutes the subject of that
conversation was not revealed to the applicants and this court is not in a position
to know for sure what it was that was discussed in the absence of the applicants
The respondents have not filed any counter affidavit and in case of the Board it
has gone a step further and refused to acknowledge the receipt to the summons
that the representatives of the Authority most probably make some
representations bearing on the termination during the private conversation is not
simply the applications overwrought imagination that no doubt constituted a
departure from the essential principles of natural justice and indeed it is
immaterial in the eye of the law that the discussion did not work to the prejudice
of the applications or that it may not have influenced the decision of the Board
Because no one who had lost a case will believe he has been fairly treated if the
other side has access to the tribunal behind his back it is quite rue that tribunals
liked the conciliation Boards enjoy a certain degree of informality but the courts
have always stressed that should not operate to offend the principles of natural.
justice

329
I cannot but accept the proposition that the Board made error of law when it held
that the taking of the terminal fits by the applicants fatally prejudiced their case.
The substances under which the applicants came to agree to take benefits have
been deposed to in the affidavit and to say the receipt of those emoluments
automatically and effectively rived the application of their statutory right of making
a erect to the Board was clearly a mistake

Finally I turn to the other points raised by the application I will r-try to deal with
together the board seems to taken a very serious view of the procession to state
perhaps not surprisingly Mr. Shivji has submitted that procession was matter
which was completely outs de the purview with respect. I do not quite agree. I
think the only mistakes into which the Board fell was that it cede further and
firmly said that the procession was lawful there was nothing material which could
have led a sonalbe tribunal to positively pronounce so As to the conclusion that
the applicants continued employments be detrimental to the efficiency and
productivity of the harbour all can said that perhaps the board was entitled to at
decision.

On balance, I am satisfied that the reference was not openly dealt with by the
board and I will grant this application. Accordingly the decision and the
proceedings the board are hereby nullified mandamus is grated and the
differently constituted is directed to hear and determine reference in accordance
with the provisions of the security Employment Act and principles of natural
justice

330
 c.c.s.u v, minste for civil service (H.L.E)
information vital to national security Since 1947 staff employed at GCHQ had
been permitted to belong to national trade unions and most had done so There
was a well established practice of consolation between the official and trade
union sides about imparting alteration in the terms and condition of service of the
staff. On 22 December 1983 the minister for the civil service gave an instruction
purportedly under article 4 of the civil Service order in council 1982 for the
immediate variation of the terms and condition of service of the staff with the
effect that that would no longer be permitted to belong to national trade unions
there had been no consultation with the trade union or with the staff at GCHQ
prior to the issuing of that instruction. The applicants a trade union an six
individuals sought judicial review of the ministers instruction on the ground that
she had been under a duty to act fairly by consulting those concerned if ore
issuing it In an affidavit. The secretary to the cabinet deposed to disruptive
industrial action in support of nation trade unions that had taken place at GCHQ
as part of a national campaign by the unions designed to damage government
agencies and that it had been considered that prior consolation about the
minister instruction would have involved a risk of precipitating further disruption
and would moreover have indicated vulnerable areas of GCHO’s operations

331
Glidewilll J. grated the applicant a declaration that the instruction was invalid and
of no effect. The court of Appeal allowed an appeal by the minister

On appeal by the applicants

Held dismissing the appeal (1) that executive action was not immune from
judicial review merely because it was carried out in pursuance of a power derived
from a common law or prerogative rather that a statutory source. And a Minster
acting under a prerogative powe might depending on its subject matter be under
the same duty to act fairly as in the case of action under a statutory power (post
pp. 399
Reg. V. criminal injuries compensation Board Ex parte ;aom (1967) 2 Q.B. 864
D.C. applied. That the applicants would apart from consideration of national
security have had a legitimate expectation that unions and employees would be
consulted before the minister issued he instruction of 22 December 1983 and
accordingly the decision making process would have been unfair by reason of
her failure to consult them ad would have been kunfair to judicial review (post
pp. 40le-g 412 c-d 419 420 )

Q’Reilly v. mackman (1983) 2 A.C.237 H.L(E) applied (3) that however, it was for
the executive and not the courts to decide whether in any particular case the
requirements of national security outweighed those of fairness and that the
evidence established that the minister had considered, with reason that prior
consultation about her instruction would have involved a risk of precipitating
disruption at GCHQ and revealing vulnerable areas of operation and accordingly
she had shown that her decision had in fact been based on consideration of
national security that outweighed the applicants legitimate expection of prior
consulstion (pst pp. 402b-c 403b 407 f-g

Windust David Framcis caffrey and Dennis Mitchell sought (1) a declaration that
the certificate issued by the Secretary of state for the Foreign and Common
wealth Office. Dated 25 January 1984 that employment in or under Government

332
communications headquarters (GCHQ) was required to be excepted for the
purposed of safeguarding national security pursuant to section 121(4) of the
Employment protection Act 1975 was invalid by reason of the fact that it had
been issued in Brach of the city of the Secretary of State to act fairly and
accordingly to consult (2 a declaration that the certificate issued by the duty of
the Secretary of state for the Foreign and Commonwealth office dated 25
January 1984 that employment in or under GCHQ was required to be excepted
for the purposed of safeguarding national security pursuant section 138(4) of the
Employment protection (consolidation) Act 1978 was invalid bt reason of the fact
that it had been issued in breach of the duty of the Secretary of state to act fairly
and accordingly to consult (3) an order of certiorari to remove into the court and
quash the instructions purportedly issued by the minister for the civil service and
the altered condition of those employed in or under GCHQ set out in letters dated
25 January 1984 7 February 1984 and 21 February 1984 and in General Notice
10084 (4) a decoration that the notification to person employed at GCHQ of
changes in their condition of service contracts of service effected by the letter of
25 January 1984 from the Director of GCHQ to all members of staff was
ineffective lawful to vary the conditions of service contracts of service effected by
the letter of 25 January 1984 from the Director of GCHQ to all the staff and the
General notice 10084 of the same date was infective lawfully to vary the
conditions observance contracts of service of the said persons or any of them
(5) a declaration that the purported acceptance by divers person employed at
GCHQ as either option A or option set out in the option form attached to the letter
of 25 January 1984 from the Director of GCHQ to all members of staff was
ineffective lawful to very the conditions of service contracts of the said person or
any of them (6) a declaration that any decision to dismiss or to transfer any
person employed at GCHQ who refused to give up his or he membership of or
alternatively the right to belong o a national trade union would in so for as the
reason for the decision to dismiss and or transfer was the refused be void or
alternatively be wrongful and in breach of the conditions of service contracts of
service on the grounds (a) the to certificates issued by the Secretary of state for

333
Foreign and commonwealth Affairs dated 25 January 1984 were invalid by
reason of the fact that the Secretary of State had failed to comply with his duty in
exercise of his power under section 121 (4) of the Act of 1975 and section 138
(4) of the Act of 1978 to act fairly in that no consultation with the employees of
GCHQ or their union representative had taken place before the issue of the
certificated (b) on a true construction of article 4 of the Civil Service order In
Council 1982 the minister for the civil service (i) was not entitled to issue
instruction to prevent persons who wished to remain at GCHQ from remaining as
members of or attaining the right to belong to national trade unions because
such instruction would affect a fundamental right not falling within the meaning of
condition of service in article 4 alternatively (ii) no longer had any power to alter
the condition of service/contracts of service
so as to prevent person who wished to remain at GCHQ from remaining in or
attaining the right to become members of national trade unions, the power in
question having been superseded by section 5 of the Trade Dispute and Trade
Union 1927and not revived by repeal of the Act by the Trade Dispute and Trade
Unions Act 1946 © in issuing the purported instruction the minister for the Civil
Service had erred in law in the following ways(i) she had been under a duty to act
fairly and therefore to consult the employees at GCHQ before issuing any such
instruction no consultation had in fact taken place before the issue of the General
Notice on 25 January 1984(ii) she had misdirected herself by proceeding on the
basis that the certificates under the Acts of 1975 and 1978 could be validly
issued without any consultation and would be valid and effective when issued on
25 January 1984 whereas that had not been the case; (iii) she had misconstrued
the true nature of the international obligation of Her Majesties Government
contained in International Labour Organisation Convention No. 87 (iv) she had
wrongly taken into account the need to bring employment at GCHQ into line with
the employment of those employed in other security and intelligence services did
not have comparable duties and sis not work in similar conditions (v) she had
held that the issue of instruction informally under article 4 of the order in
Councilor 1982 amounted to a prescription in law with the meaning of article 11

334
)2) of the European Convention on Human Rights a misdirection as to the true
meaning of article 11 (2) invalidated the relevant decision as a matter of English
law if as was apparent from the terms of a statement in within made by the
Foreign and Commonwealth Office to the Select committee on Employment a
consideration of the meaning of article 11 (2) had formed an integral part of the
decision making process alternatively no reasonable minister could have formed
the view that informal instruction amounted to prescription by law within the
meaning of article 11 (2) (vi) by failing be have any regard to relevant factors
namely (a) the existence in the conditions of service contracts of service of
employees at GCHQ of a right to belong to a national trade union and (b) the fact
that she was obliged by the relevant conditions of service/ contracts of service
and /or by long standing industrial relations practice to consult about relevant
changes in conditions of service (d) no responsible minister for the civil service
could have come to the conclusion that it was necessary to alter the conditions of
service/contracts of service for the following reasons
(i) the industrial action take by certain employees at GCHQ in the period 1979-
1981 had been insufficiently disruptive of operational work at GCHQ to prompt
fears that national security would in the future be jeopardized (ii) the delay of
three years before any executive action by way of considering the alteration was
such as to negative any suggestion that national security was being
inadequately safeguarded without resort to the alteration of the condition for
service/contracts of service of GCHQ employees; (iii) the official avowal in may
1983 that GCHQ was a part of the nation’s security and intelligence services was
insufficient reason for the delay in determining to alter the condition of
service/contracts of service since there had been no change in the operational
activities at GCHQ that required the alteration on 25 January 1984 when no
exception had been considered necessary during the previous three years;
moreover, by 1987 at the latest the intelligence services conducted at GCHQ
had been given wide publicity (e) (i) in a statement made in writing by the
Foreign and Commonwealth Office to the Select Committee on Employment the
legal requirements for a change in the conditions of service had been illustrated

335
in the following terms: Such regulations or instruction are legal instruments under
the prerogative power and in the case of GCHQ the change in the conditions of
service have been made by instruction given by the prime minister under that
power (ii) nothing amounting to a legal instrument under the prerogative power
had been issued before 25 January 1984 and accordingly the letter of 25 January
1984 and the General Notice 100/84 were both invalid (iii) on a true construction
of article 4 of the order in Council of 1982 instructions providing for the conations
of service of civil servants were specific instruction in writing setting out the
relevant conditional of service: no such instruction had been given by the prime
minister under that power had been issued before 25 January 1984 and
accordingly the letter of 25 January 1984 and the General Notice 100/84 were
both invalid; (iii) on a true constriction of article 4 of the order in Council of 1982
instructions providing for the conditions of sercoce of civil servants were specific
instruction in writing setting our the relevant condition of service no such
instructions had been given by the minister for the Civil Service and accordingly
the letter of 25 January 1984 and General Notice 100/84 were both invalid: (f) (i)
the minister for the Civil Service had no power lawfully to compel persons
employed at GCHQ to give up membership of a national trade union or to
deprive them of their right to join a national trade union since the existing
condition of service/contracts of service of such persons permitted such
membership any change in those conditions of service contracts of service
contracts of service could be affected only by a lawful variation thereono such
lawful variation had been achieved by the proposed unilateral variation since the
Crown had no power. Statutory. Prerogative or otherwise. To vary condition of
service contracts of service at will (ii) furthermore no purported acceptance of the
new conditions of service /contracts of service whether of option A or of option B
set out in the option form attached to the letter of 25 January 1984 from the
Director of GCHQ to all members of staff had affected such a lawful variation
since (1) no consideration had been given for the purported agreement to accept
the new terms and (2) such acceptances as had been given had been given
under duress namely in relation to option A the unlawful threat by the Crown to

336
dismiss persons refusing to accept the changes the change proposed in option A
in breach of their conditions of service/contracts of service and in relation to
option B the unlawful threat by the Crown to dismiss persons refusing to accept
the changes proposed in option B in Brach of their condition of service/contracts
of service at will such power had been exercised contrary to law and in breach of
the condition so service/contracts of service that the said person or their union
representatives would be consulted before changes in the conditions of
service/contracts of service were effected no such consultation had taken place
(g) any decision to transfer and/or dismiss any person employed at GCHQ by
reason of his or her refusal to give up membership of or the right to be a member
or a national trade union

would be void and/or would be wrongful and in breach of his or her conditions of
service/contract of service in that: (i) each person employed at GCHQ was given
the right by his or her original conditions of service/contract of service to belong
to the appropriate national trade union if he or she so wished; (ii) it was
inconsistent with such a term for the Crown to subject such a person to any
detriment by reason of such union membership; (iii) the transfer or alternatively
dismissal of such a person would constitute such a detriment.

On 8 March 1984 the Divisional Court (Glidewell J.) gave the applicants leave to
apply for judicial review. At the hearing of the application the applicants withdrew
their application for relief in respect of the certificated under the Acts of 1975 and
1978 and indicated that they would be content with declaratory relief in lieu of an
order of certiorari to quash the instructions purportedly issued by the minister
Glidewell J. on 16 July 1984 declared that the instruction purportedly the terms
and conditions of service of civil Service on 22 December 1983 that the terms
and conditions of service of civil servants serving at GCHQ should be revised so
as to exclude membership of any trade union other GCHQ was invalid and of no
effect.

337
On 6 August 1984 the Court of Apical ( Lord Lane C.J. Watkins and May L.JJ. )
Allowed an appeal by the minister for the Civil Service giving the applicants
leave to appeal to the House of Lords. They dismissed a cross-appeal by the
applicants relating to costs The applicants appealed.
The facts are set out in the opinions of Loud Fraser of Tullybelton and Lord
Roskill
Louis blom-Cooper Q.C Patrick Elias and Richard Drabble for the applicants A
staff association and a trade union are not necessarily the same thing a staff
association might not be affiliated to a national trade union. It is part of a national
trade union but may only recruit amongst the staff themselves.
Glidewell J. finding that General notice 100/84 was a notice giving information
not a set of regulations or instructions is adapted it is a correct analysis of the
situation regarding the direction and the general notice. The Court of Appeal
made no analysis
Three points are made regarding the situation up to 25 January 1984 (1) As to
the decision or direction made orally on 22 December 1983 to ban national trade
unions and substitute departmental associations there was no other or further
indication in that direction or in the confirming letter of 7 February 1984 written by
Sir Robert Armstrong o the dire3ctore of GCHQ. That is all the knowledge that
anyone had (2) on 25 January a month later the Secretary of State issued the
two certificates Because of the date one assumes that was consequential on the
direction of 22 December not the other way round (3) The general notice of 25
January 1984 was not an instruction the instruction is and can only be the
decision or direction of 22 December it is that and that alone
Assuming that there was a duty to act fairly the refusal to enter on consultation
has bearing on that duty. There is a body of opinion that thought that the failure
to consult was a breach of it Tullybelton has pointed out. Loud Reid and viscount
Radcliffe treated his evidence as relevant to the dismissal of the appeal. Lord
Devlin develop the point taken in the case on national security in a passage
beginning at p. 809 which with all respect to those who take a different view I
believe to be sound law. Having referred to the undoubted principle that all

338
matters relating to the dispassion and armament of the armed forces are left to
the unfettered control of the Crown he made three comments First he put the
Zamora dictum into its true context. Secondly he observed that when a court is
faced with the exercise oa a discretionary power inquiry is not altogether
excluded the court will intervene to correct excess or abuse. His third and as he
said his most significant comment was as to the nature and effect of the principle
Where it opeares it limits the issue which the court has to determine it does not
exclude any evidence or argument relevant to the issue (p. 810)
As I read the speeches in Chandler’s case the House accepted that the statute4
required the prosecution to establish by evidence that the conspiracy was to
enter a prohibited place for a purpose prejudicial to the safety or interest of the
state As parliament had left the existence of a prejudicial purpose to the decision
of a jury it was not the Crown’s opinion as to the existence of prejudice to the
safety or interests of the state but the jury’s which mattered hence as Lord
Devlin. At p. 811.remarked the Crown’s opinion on that was inadmissible but the
Crown’s evidence as to its interests was an entirely different matter. Here like
Lord Parker in the Zamora. Lord Devin was accepting that the Crown or its
responsible servants are the best judges of what national security requires
without excluding the judicial unction of determining whether the interest of
national security has been shown to be involved in the case.
Finally, I would refer to Secretary of State for Defence v. Guardian Newspapers
Ltd. (1985) A.C. 339 a case arising under section 10 of the Act of 1981. As in
Chandler’s case the interest of national security had to be considered in
proceedings where it arose as a question of fact to be established to the
satisfaction of a court Though the House was divided as to the effect of the
evidence all their Lordships held that evidence was necessary so that the court
could be judicially satisfied that the interest of national security required
disclosure of the newspaper’s source of information
My Lords I conclude therefore that where a question as to the interest of national
security arises in judicial preceding the court has to act on evidence. In some
cases a judge or jury is required by law to be satisfied that the interest is proved

339
to exist; in others the interest is a factor to be considered in the review of the
exercise of an executive discretionary power. Once the factual basis is
established by evidence so that the court is satisfied that the interest of national
security is a relevant factor to be considered in the determination of the case the
court will accept the opinion of the Crown of its responsible officer as to what is
required to meet it unless it is possible to show that the opinion was one which
no reasonable minister advising the Crown could in the circumstances
reasonably have held. There is no abdication of the judicial function but there is a
common sense limitation recognized by the judges as to what is justifiable and
the limitation is entirely consistent with the general development of the modern
case law of judicial review
My Lords I would wish to add a few very few words on the review ability of the
exercise of the royal prerogative. Like my noble and learned friend Lord Dipock. I
believe that the law relating to judicial review has now reached the stage where it
can be said with confidence that if the subject matter in respect of which
prerogative of which prerogative power is exercise of statutory power without
usurping the role of legal historian for which I claim no special qualification I
would observe that the royal prerogative has always been regarded as part of the
common law and that Sir Edward Coke had no doubt that it was subject to the
common law prohibitions del Roy (1608) 12 Co. Rep. 63 and the proclamations
Case (1611) 12 Co. Rep. 74 in the latter case he declared at p, 76 that the King
hath no prerogative but that which the law of the land allows him. It is of course
beyond doubt that in Coke’s time and thereafter judicial; review pf the exercise of
prerogative power was limited to inquiring into whether a particular power existed
and if it did into its extent; Attorney-General v. De Keysers Royal Hotel Ltd (1920)
A.C. 508 But this limitation has now gone. Overwhelmed by the developing
modern law of judicial review Reg. v. Criminal injuries Compensation Board, Ex
parte lain (1967) 2 Q.B 864 a landmark case comparable in its generation with
the proclamations Case 12 Co. Rep. 74 and Reg. v. Secretary of State for Home
Affairs Ex parte hoasenball (1977) I W.L R. 766 just as ancient restriction in the
law relating to the prerogative writ and orders have not prevented the courts from

340
extending he requirement of natural justice namely the duty to act fairly so that it
is required of a purely administrative act so also has the modern law a vivid
sketch of which my noble and learned friend lord Diplock has included in his
speech extended the range of judicial review in respect of the exercise of
prerogative power. Today, therefore the controlling factor in determination
whether the exercise of prerogative power is subject to judicial review is not its
source but its subject matter.
Subject to these few comments I agree with the speeches delivered by my noble
and learned friends Lord Diplock and Lord Roskill. I am in favour of dismissing
the appeal only because the respondent has established by evidence that the
interest of national security required in her judgment that she should refuse to
consult the unions before issuing her instruction. But for this I would have
allowed the appeal on the procedural ground that the respondent had acted
unfairly in failing to consult union or staff before making her decision.

LORD DIPLOCK. My Lords, the English law relating to judicial control of

administrative action has been developed upon a case to case basis which has
virtually ran formed it over the last three decades. The principles of public law
that are applicable to the instant case are in my view well established by
authorities that are sufficiently cited in the speech that will be delivered by my
noble and learned friend, Lord Roskill. This obviates the necessity of my
duplicating his citations though I should put on record that after reading and
rereading Lord Devlin’s speech in Chandler v. Director of public prosecutions
(1964) A.C. 763 I have gained no help from it for I find some of his observations
that are peripheral to what I understand to be the ratio decidendi difficult to
reconcile with the actual decision that he felt able to reach and also with one
another
The only difficulty which the instant case has presented upon the facts as they
have been summarized my noble and learned friend Lord Fraser of Tullybelton
and expanded in the judgment of Glidewell J. has been to identify what is in my
view the one crucial point of law on which this appeal turns. It never was

341
identified or even adumbrated in the respondent’s argument at the hearing before
Gflidewell J. and so excusably finds no place in what otherwise I regard as an
impeccable judgment. The consequence of this omission was that he found in
favour of the applicants. Before the Court of Appeal the Crown advanced the
crucial point in argument in terms that were unnecessarily and in my view
unjustifiably wide. This stance was maintained in the appeal to this House.
Although under your Lordships encouragement the narrower point of law that
was really crucial was developed and relied on by the respondent in the
alternative. Once that point has been accurately identified the evidence in the
case in my view makes it inevitable that this appeal must be dismissed. I will
attempt to state in summary form those principles of public law, which lead me to
this conclusion
Judicial review now regulated by R.S.C. Ord 53 provides the means by which
judicial control of administrative action is exercised The subject matter of every
judicial review is a decision made by some person (or body of persons) whom I
will call the decision-maker or else a refusal by him to make a decision
To qualify as a subject for judicial review the diction must have consequences
which affect some person (or body of persons) other than the decision-maker
although it may affect him too It must affect such other person either;
(a) by altering rights or obligations of that person which are enforceable or
(b) by depriving him of some benefit or advantage which either (i) he had in the
past been permitted by the decision-maker to enjoy and which he can
legitimately expect to be permitted to continue to do until there has been
communicated to him some rational ground for withdrawing it on which he has
been given an opportunity to comment: or (ii) he has received assurance from
the decision-maker will not be withdrawn without giving him firs an opportunity of
advancing reasons for contending they should not be withdrawn. (I prefer to
continue to call the kind of expectation that qualifies a decision for inclusion in
class (b) a legitimate expectation rather than a reasonable expectation in order
thereby to indicated that it has consequences to which effect will be given in
public law whereas an expectation or hope that some benefit or advantage would

342
continue to be enjoyed although might well be entertained by a reasonable man
would not necessarily have such consequences. The recent decision of this
House in re Findlay (1985) A,C 318 presents an example of the latter kind of
expectation Reasonable furthermore bears different meanings according to
whether the context in which it is being used is that of private law or of public law.
To eliminate confusion it is best avoided in the latter)
For a decision to be susceptible to judicial review the decision-maker must be
empowered by public law and not merely as in arbitration by agreement between
private parties)to make decision that if validly made will lead to administrative
action or abstention from action by an authority endowed by law with executive
powers which have one or other of the consequences mentioned in the
preceding paragraph. The ultimate source of the decision-making power is nearly
always nowadays a statute or subordinate legislation made under the statute; but
in the absence of any stature regulating the subject matter of the decision the
source of the decision-making power may still be the common law itself i.e. that
part of the common law that is given by lawyers the label of the prerogative.
Where this is the source of decision-making power the power is confined to
executive officers of central as distinct from local government and in
constitutional practice is generally exercised by those holding ministerial rank.
I t was the prerogative that was relied on as the source of the power of the
minister of the Civil Service in reaching her decision of 22 December 1983 that
membership of national trade unions should in future be barred to all members of
the home civil service employed at GCHQ
My Lords. I intend no discourtesy to counsel I say that intellectual interest apart.
In answering the question of law raised in this appeal I have derived little
practical assistance form learned and esoteric analyzes of the of the precise
legal nature. Boundaries and historical origin of the prerogative or of what powers
exercisable by executive officers acting on behalf of central government that are
not shared by private citizen quality for inclusion under this particular label. It
does not for instance seem to me to matter whether today the right of the
executive government that happens to be in power to dismiss without notice any

343
member of the home civil service upon which perforce it must rely for the
administration of its policies and the correlative disability of the executive
government that is in power o agree with a civil savant that his service should be
on terms that did not make him subject to instant dismissal should be ascribed to
the prerogative or merely to a consequence of the survival for entirely different
reasons of a rule of constitutional law whose origin is to be found in the theory
that those by whom the administration of the realm is carried on do so as
personal savants of the monarch who can dismiss them at will because the King
can do no wrong
Nevertheless, whatever label may be attaché to them there have unquestionably
survived into the present day a residue of miscellaneous fields of law in which the
executive government retrains decision-making powers that are not dependent
upon any statutory authority but nevertheless have consequence on the private
rights or legitimate expectations of other persons which would render the
decision subject to judicial review if the power of the decision-maker to make
them were statutory in origin. From matters so relatively minor as the grant of
pardons to condemned criminals of honours to the good and great of corporate
personality to deserving bodies of persons and of bounty from money made
available to the executive government by parliament they extend to matters so
vital to the survival and welfare of the nation as the conduct of relations with
foreign states and what lies at the heart of the present case the defence of the
realm against potential enemies Adopting the phraseology used in the
European Convention on Human Rights 1953 (Convention for the protection of
human Rights and Fundamental Freedoms (1953) Cmd. 8969 to which the
United Kingdom is a party it has now become usual in statues to refer to the
latter as national security.
My Lords I see no reason why simply because a decision- making power is
derived form common law and not a statutory source. It should for that reason
only be immune from judicial review judicial review has I think developed to a
stage today when without reiterating any analysis of the steps by which the
development has come about one con conveniently classify under three heads

344
the grounds upon which administrative action is subject to control by judicial
review. The first ground I would call illegality the second irrationality and the third
procedural impropriety.
That is not to say that further development on a case-by-case basis may not in
course of time add further founds. I have in mind particularity the possible
adoption in the future of the principle of proportionality which is recognized in the
administrative law of several of our fellow members of the European Economic
Community but to dispose of the instant case the tree already well established
heads that I have mentioned will suffice
By illegality as a ground or judicial review I mean that the decision maker must
understand correctly the law that regulated his decision making power and must
give effect to it whether he has or not is par excellence a justifiable question to be
decided in the event of dispute by those persons the judges by whom the judicial
power of the state is exercisable
By irrationality I mean what can by now be succinctly referred to as wednesbury
unreasonableness (Associated provincial picture Houses Ltd. V. wednesbury
Corporation (1984) 1 K.B.223). it 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
whether a decision falls within this category is a question that judges by their
training and experience should be well equipped to answer or else there would
be something badly wrong with our judicial system. To justify the court’s exercise
of this role resort I think is today no longer needed to Viscount Radcliffe
ingenious explanation in Edwards v. Bairstow (1956) A.C 14 of irrationality as a
ground for a court’s reversal of a decision by ascribing it to an inferred though
unidentifiable mistake of law by the decision-maker Irrationality by now can stand
upon its own feet as an accepted ground on which a decision may be attacked by
judicial review. I have described the third head as procedural impropriety rather
than failure to observe basic rule of natural justice or failure to act with procedural
fairness towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also failure by an

345
administrative tribunal to observe procedural rules that are expressly laid down
in the legislative instrument by which its jurisdiction is conferred even share such
failure does not involve any denial of natural justice But the instant case is not
concerned with the proceedings of an administrative tribunal at all
My Lords that a decision of which the ultimate source of power to make it is not a
statute but the common law (whether or not the common law is for this purpose
given the label of the prerogative) may be the subject of judicial review on the
ground of illegality is I think established by the cases cited by my noble and
learned friend Lord Roskill and this extends to cases where the field of law to
which the decision relates is national security as the decision of this House itself
in Burmah Oil Co. Ltd. V. Lord Advocate 1964 S.C. (G.L) 117 shows while I see
no a priori reason to rule our irrationality as a ground for judicial review of a
ministerial decision taken in the exercise of prerogative powers I find it difficult to
envisage in any of the various fields in which the prerogative remains the only
source of the relevant decision-making power a decision of a kind that would be
open to attack through the judicial process upon this ground Such decisions will
generally involve the application of government policy. The reasons for the
decision –maker taking one course rather than another do not normally involve
questions to which if disputed the judicial process is adapted to provide the right
answer by which I mean that the kind of evidence that is admissible under judicial
procedures and the qya in which it has to be adduced tend to exclude from the
attention of the court competing policy considerations which if the executive
discretion is to be wisely exercised need to be weighed against one another-a
balancing exercise which judges by their upbringing and experience are ill-
qualified to perform So I leave this as an open question to be dealt with on case
to case basis if indeed the case should ever arise
As respects procedural propriety I see no reason why it should not be a ground
for judicial review of a decision made under powers of which the ultimate source
is the prerogative Such indeed was one of the grounds that formed the subject
matter of judicial review in Reg. v. Criminal Injuries Compensation Board, Ex
parte Lain (1967) 2 Q.B. 864 Indeed where the decision is one which does not

346
alter right or obligations enforceable in private law but only deprives a persons of
legitimate expectations procedural impropriety will normally provide the only
ground on which the decision is open to judicial review. But in any event what
procedure will satisfy the public law requirement of procedural propriety depends
upon the subject matter of the decision the executive functions of the decision-
maker (if the decision is not that of an administrative tribunal) and the particular
circumstances in which the decision came to be made.
My Lords in the instant case the immediate subject matter of the decision was a
change in one of the terms of employment of civil servants employed at |GCHQ
That the executive function of the minister for the Civil Service in her capacity as
such included making a decision to change any of those terms except in so far as
they related to remuneration expenses and allowances is not disputed. It does
not seem to me to be of any practical significance whether or not as a matter of
strict legal analysis this power is based upon the rule of constitutional law to
which I have already alluded that the employment of any civil servant my be
terminated at any time without notice and that upon such termination the same
civil savant may be re-engaged on different terms. The rule of terminability of
employment in the civil service without notice of which the existence is beyond
doubt must in any event have the consequence that the continued enjoyment by
a civil servant in the future of a right under a particular term of his employment
cannot be the subject of any right enforceable by him in private law at most it can
only be legitimate expectation
Prim facie. Therefore civil servants employed at GCHQ who were members of
national trade unions had at best in December 1983 a legitimate expectation that
they would continue to enjoy the benefits of such membership and of
representation by those trade unions in any consultations and negotiations with
representatives of the management of that government department as to
changes in any tem of their employment. So but again prima-facie only. They
were entitled as a matter of public law under the head of procedural propriety.
Before administrative action was taken on a decision to withdraw that benefit to
have communicated to the national trade unions by which they had theretofore

347
been represented the reason for such withdrawal and for such unions to be given
an opportunity to comment on it
The reason why the minister for the Civil Service decided on 22 December 1983
to withdraw this benefit was in the interests of national security. National security
is the responsibility of the executive government: what action is needed to
protect its interests is as the cases cited by my learned friend Lord Roskill
establish and common sense itself dictates a matter upon which those upon
whom the responsibility rest and not the courts of justice must have the last word.
It is par excellence a non-justifiable question. The judicial process is totally inept
to deal with the sort of problems which it involves .
The executive government likewise decided and this would appear to be a
collective decision of cabinet ministers involved that the interests of national
security required that no notice should be given of the decision before
administrative action had been taken to give effect to it The reason for this was
the risk that advance notice to the national unions of the executive government’s
intention would attract the very disruptive action prejudicial to the national
security the recurrence of which the decision barring membership of national
trade unions to civil servants employed at GCHQ was designed to prevent.
There was ample evidence to which reference is made by others of your
Lordships that this was indeed a real risk; so the crucial point of law in this case
is whether procedural propriety must give way to national security when there is
conflict between (1) on the one hand the prima facie rule of procedural propriety
in public law applicable to a case of legitimate expectations that a benefit ought
not to the withdrawn until the reason for its proposed withdrawal has been
communicated to the person who had theretofore enjoyed that benefit and that
person had been given an opportunity to comment on the reason and (2) on the
other hand action that is needed to be taken in the interests of national security
for which the executive government bears the responsibility and alone has
access to sources of information that qualify it to judge what the necessary action
is. To that there can in my opinion be only one sensible answer. That answer is
Yes

348
I agree with your Lordships tat this appeal must be dismissed
Lord Roskill my lords this appeal arises out of the exercise by the respondent.
The minister for the Civil Service of a specific power vested in her by article 4 of
the Civil Service Order in Council 1982 That specific power purported to be
exercised orally on 22 December 1983 The terms in which it is claimed to have
been exercised are contained In a letter dated 7 February 1984 from Sir Robert
Armstrong writing as Head of the Civil Service to the Director of the Government
Communications Headquarters at Cheltenham (GCHQ) The exercise of the
power took the form of:
Instruction that the condition of service under which civil servants are employed
as members of the staff of the Government Communications Headquarters shall
be varied so as to provide that such civil servant shall not be member of any
trade union other than a departmental staff association approved by yourself
The making of this change in the condition of service of civil savants employed at
GCHQ was announced in the House of Commons by the Secretary of State for
Foreign and Commonwealth Affairs on 25 January 1984 and on the same day he
issued certificates under section 138 (4) of the Employment Protection
(Consolidation) Act 1978 certifying that employment at GCHQ was to be
excepted from those section for the purpose of safeguarding national security.
On the same day the Directory of GCHQ informed his staff in writing of the
decision of the issue of the certificates and of the various options which were
thereafter to remain open to them.
My Lords the background to these action in December 1983 and January 1984 is
fully set out in the speech of my noble and learned friend lord Fraser of
Tullybelton which I gratefully adopt it requires no repetition. Nor does the history
of the antecedent rights of those concerned to join trade union. That the
instruction thus given and the certificates thus issued drastically altered the trade
union rights of those civil savants concerned cannot be doubted Nor can it be
doubted that the issue of the instruction and of the certifications and of the
certificates without prior warning or consultation of any kind with the various trade

349
unions concerned either at a national or a t a local level involved a complete
departure from the normal manner in which relations between management and

TANZANIA LAW REPORTS (1992) T.L.R.

The appellant sued the respondents in the High Court for defamation and
wrongful termination of employment . The basis of his suit for defamation was
that a defamatory statement relating to him was published to persons not having
corresponding interest and duty to receive the publication. The defamatory
statement was contained in a probe team report which instead of being published
to the general council of JUWATA which had ordered the prove was published to
kamati ya Usimamizi ya Baraza kuu (KUBK) and the board of directors of the
borders Development Corporation (WDC) of which he was general manager. And
the basis for his complaint against wrongful termination was that he was not
given an opportunity to be heard by the body, which terminated his employment.
KUBK did give him an opportunity to be heard and in the end recommended that

350
the appellants employment be terminated and the board of directors of W.D.C
terminated his services without giving him an opportunity to be heard. The trial
court found the complaints to be baseless on the following grounds (a) that the
respondents were availed the defence of qualified privilege; and (b) that the
appellant was afforded and opportunity to be heard by KUBK. On appeal to the
Court of Appeal.
Held: (I) Where a person raised the defence of qualified privilege on the ground
that he had a duty to make the offending statement it must further be shown that
the statement was made in good faith and that the person to whom it was made
had a corresponding interest and duty to receive it
(ii) the report containing defamatory statements was ordered by the general
council of the first respondent and was expressly required to be submitted to that
body. Publication of the report to members of KUBK when they were not
supposed to receive it was wring; (iii) it was necessary to afford the appellant the
opportunity to be heard by the body which ultimately decided his fate i.e. the
board of directors, because there can be no guarantee that given that opportunity
his defence before the board of directors would necessarily be same as his
defence before the probe team.

Appeal allowed.

Makame, Omar and Kisanga, JJ.A.; The appellant sued the first respondent,
JUMUIYA YA WAFANYAKAZI TANZANIA (JUWATA), for defamation and in the
same plaint he also sued the second respondent, the Workers Development
Corporation (W.D.C.) for wrongful termination of his employment. The second
respondent in a counter-claim sued for unrefunded loans which the appellant had
obtained from the said respondent with or without authorization. The high Court
in which the action was brought dismissed both the claim and the counter-claim
and made an order for costs against the appellant. The appellant is now
appealing, but the second respondent has not appealed against the dismissal of
its counter-claim

351
The facts of the case may be stated briefly as follows; The appellant was
employed by the W.D.C. as its general manager; As part of his duties, the
appellant prepared and submitted a report of the W.D.C. and its subsidiary
companies at the annual meeting of the general council of JUWATA it is the
general council of JUWATA it is the genera council of JUWATA consisting of two
to three hundred members which supervises the affairs of the W.D.C As the
appellant was trying to present his report before the general council members of
the council felt that the report involved certain inadequacies or unsatisfactory
matters which made it necessary to appoint a probe team of seven members to
examine the report and suit their findings to the general council at its next
meeting.; After the report of the probe team was prepared it was presented to the
Secretary-General of JUWATA who, however, submitted it, not to the general
council as had been directed but to the Kamati ya Usimamizi ya Baraza kuu
(KUBK) consisting of 20 to 30 members, and also to the Board of Directors of
the W.D.C.
Upon receiving the probe report, the KUBK required the appellant to appear
before it to defend himself against allegations made against him in the report and
he did so. In addition to the appellant’s defence the KUBK also received from the
board of directors of the W.D.C. their comments on the probe report,. After that
the KUBK proceeded to appoint a select committee to scrutinize further the probe
report in the light of the appellant’s defence and the comments by the board of
directors of the W.D.C. and then report back to the KUBK. The select committee
accordingly submitted its report and after discussing and adopting it the KUBK
recommended the termination of the appellant’s employment acting on the
recommendation, the board of directors of the W.D.C. accordingly terminated the
appellant’s employment.
The appellant’s claim for defamation was essentially based on the publication of
the probe report to the bodies of persons other than that which had ordered or
directed such probe. And the basis for his complaint against wrongful termination
was that he was given
No opportunity to be heard by the body, which terminated his employment.

352
The trial judge dismissed appellant’s claim for defamation on the ground that the
first respondent had the defence of qualified privilege. He dismissed the claim for
wrongful termination on the ground that such termination was justified in the light
of the appellant’s proved or admitted misconducts.
At the heading of this appeal the appellant was represented by Mr. Lukwaro
while Mr. Muccadam appeared for the respondents. Mr. Lukwaro filed a total of
eight grounds of appeal challenging the dismissal of his client’s suit by the High
Court and the failure by that Court to award him costs after dismissing he
counter-claim by the second respondent.
The learned judge found that the report by the probe team did contain
statements, which were defamatory of the appellant. When dealing with that
issue he said inter alia

There is no doubt that some of the publication is defamatory matters like adultery
imputations and fraud allegations are certainly defamatory

We are satisfied that this finding was quite justified. There was ample evidence to
support it. However he misdirected himself by saying that the probe team
submitted its report to the general council of JUWATA. For there was abundant
evidence of the appellant and the defence witness. One Mr. Mashashi that the
report by the probe team was submitted to the KUBK not to the general council of
JUWATA.
As stated earlier, the learned judge found that the first respondents had the
defence of qualified privilege available to it This was so because in his view there
was public duty to investigate into the activities of the W.D.C, and its general
manager” He took the view that once there was that dirty then in the absence of
any malice and indeed the appellant concede that absence any malice on the
part of members of the probe team, the occasion was one of qualified privilege
It was established by the evidence that the probe team was appointed by the
general council of JUWATA to probe into the affairs of the W.D.C. including those
of the appellant as its general manager, and report its findings back to the

353
general council of JUWATA As already pointed our, however, the report of the
probe team was submitted not to the appointing authority, the general council of
JUWATA, but to the KUBK. It is quite apparent that the general council of
JUWATA and the KUBK are two different bodies the former has two to three
hundred members while the latter comprises 20 to 30 members only. The two
bodies also differ in their functions The general council of JUWATA supervises
the affairirs of the W.D.C while the KUBK is under the general council and deals
with matters of day-to-day administration.
Where a person raise the defence of qualified privilege on the ground that he had
duty to make the offending statement in must further be shown that the statement
was made in good faith and that the person to whom it was made had a
corresponding interest and duty to receive it. Admittedly in the instant case the
probe team made the defamatory statements in the performance of the duty
imposed on it by the general council of JUWATA, and it was common ground that
these statements were made without malice. But the question is what
corresponding interest and duty did the KUBK have to receive the report? The
report was ordered by the general council and was expressly required to be
submitted to that body. The circumstances leading to the KUBK receiving the
report are not at all apparent. The KUBK was not shown to be the disciplining
authority of the appellant, and certainly it was not authority vested with the power
of appointing or termination the services of the appellant; on the evidence such
powers were vested in the board of directors of the W.D.C. It seems plain
therefore, that the probe report was wrongly published to members of the KUBK
when they were not supposed to receive it i.e. when they had not correspondents
interest and duty to receive it and to that extent the defence of qualified privilege
cannot succeed
As regards the issue of termination the appellant’s employment, there was clear
evidence that this was done by the board of directors of W.D.C. The appellant
concedes that this was the proper authority to exercise that power, but his
complaint is that he was afforded no opportunity to be heard by that body before
the latter terminated him/ In dismissing the appellant’s claim the trial judge took

354
the view that the appellant’s termination was justified in the light of the appellant’s
proved or admitted misconducts such as the loaning of money to himself without
authority. With due respect to the learned judge. However, this did not do away
with the need to along the appellant was protesting his innocence against the
allegation which were made against him. His admission of some of the affixations
were invariably accompanied explanations

Designed to absolve him. In those circumstance if the disciplining authority was

minded to impose a sanction on him, as indeed it did it was right and proper, in
accordance with the principle of natural justice, to hear him before condemning
him. Indeed, even if his admissions of the allegations before the probe team were
seemingly unequivocal, we think that it was still necessary to afford him the
opportunity to put up his defence before the board of directors although it would
necessarily be the same as his defence before the probe team.
Mr. Muccadam, learned counsel for the respondents contended before us and
also in the High Court that the appellant was duly afforded the opportunity to be
heard when he was called upon to defend himself before the KUBK With due
respect to the leaned counsel, however, this argument cannot be sustained.
First, the KUBK was not the authority, which imposed the sanction being
complained against. The sanction was imposed by the board of director of the
W.D.C. the appellant’s appearance therefore ought properly to have been before
that body. What is more and this seems to be even more serious the evidence
shows that the substance of the appellant’s defence was not placed before was
not paced before the board of directors. The Deputy Secretary- General of
JUWATA Mr. Elias Mashashi stated in his evidence for the defence that the
report of the KUBK (Ex.D1) was not submitted to the board of directors of the
W.D.C. This means that the board of directors terminated the appellant’s
employment purely o the strength of a bare recommendation by the KUBK and
that was totally wrong.
We are satisfied that the learned trial judge wrongly dismissed the appellant’s
claims for defamation and for wrongful termination of his employment

355
The second respondent’s counter-claim was dismissed but nothing further was
said about. The general rule in civil cases is that costs follow the event. That is to
say the successful party is entitled to recover his costs unless there are grounds
for ordering otherwise. In this case the appellant was the successful party as far
as the counter-claim was concerned, and according to he general rule he was
entitled to recover his costs. The trial judge gave no reasons and we could find
none, for departing from the general rule. On that account we find that the
appellant was wrongly denied his costs following the dismissal of the counter-
claim against him.
In the result we allow the appeal. The decision of the High Court is set aside, and
instead thereof we enter judgment for the appellant as prayed in the plaint. We
award shilling 200,00/= damages for the defamation and shillings 50,00/= for the
wrongful termination of employment. The appellant shall have his costs both in
this court and in the Count below, the latter to include costs in respect of the
dismissed counterclaim

ALLY HASSAN MPAPATA v, REPUBLIC

(HIGH COURT OF TANZANIA (MKUNDEM J, )

7 September 1992 – DAR ES SALAAM

Criminal practice and procedure – pleas – plea of putrefies acquit whether available where previous proceedings have been declared
and void

Consent for prosecution of an economic offence was given a person who was not
authorized to do so. This point escaped the attention of the trial court, the trial
proceeded and the accused and acquitted for insufficiency of evidence. The
D.P.P. appealed to the High Court. Preliminary objections were raised one of
which was that he was not competent to do so. The High Court upheld this
objection and declared the proceedings in the lower court null and void. The

356
Court did not stop there. It considered the evidence adduced at the trial, upheld
the acquittal of the accused and dismissed the appeal by the D.P.P.

The D.P.P. then prepared a fresh charge whose particulars of offence alleged the
dame offence and was word for word similar to the charge in the previous trial
declared to be a nullity by the High Court. Consent for prosecution was duly
given

The accused persons, when required to plead, raised the plea of autrefois acquit
is not available to an accused person whose previous trial has been declared null
and void

Appeal dismissed.

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM RAMADHANI J.A BOMANI Ag J.A AND KANYWANI

CIVIL APPEAL NO. 27 OF 1992

BETWEEN

MOSES J. MWAKIBETERRRRR.. APPELLANT

AND

357
 1. THE PRINCIPAL SECRETARY (ESTABS)

2.THE ATTOBREY GENERALRR. RESPONDENTS

(Appeal from a Ruling and order of the

High Court of Tanzania at Arusha

(lugakingira J)

dated the 7th day of April 1992

in

Misc. Civil Application No. 11 of 1992

RAMADHANI J.A.

The appellant Moses J. Mwakibete was appointed as judge of the High Court of

Tanzania in 1973pursuant to the recommendations of a Commission appointed

by the president under Article 110 (5) (a) of the constitution of the united

Republic of Tanzania he was removed from the office of judge on 15th May 1991

The decision to remove the appellant from that office was communicated to him

by a letter from the Principal Secretary (Establishments) in short P.S Estabs)

MUF3/33/310/390 of 24th May 1991 (hereinafter referred to an An) that was

made u.f.s. the chief justice (C.J) who inetinled it on 3rd June 1991 That letter in

part read as follows

Nimeagizwa nikuarifu kuwa Rais chini ya Ibara 110 (5) )6) na (7) ya katibu ya

Jamhuri ya Muungano wa Tanzania amekuondoa katika kazi ya Ujaji kwa

kukustaafisha kwa manufaa ya umma

358
In English I have been instructed to inform you that the president under Article

110 (5) (6) and (7) of the constitution of the united Republic of Tanzania has

removed you from the office of judge by retiring you in the public interest.

The appellant received that letter on 4th June 1991. His immediate reaction was

to ask for the report of the commission. He did that by writing to the P.S. (Estabs)

on the same day. We may as well point out here that we do not deem it

necessary to give references of the various letters cited in this judgment though

we are of the firm view that the historical background of this matter is material.

The P.S. (Estabs) passed on the request to the C.J. vide his letter of 13th June,

1991 The letter of the P.S. (Estabs) was answered by the Registrar of the Court

of Appeal under the instructions of the C.J . that the Judiciary had no authority to

divulge the contents of a report addressed to the president The appellant was not

put off but followed up his request with two mere letters that of 27th June and that

of 4th July, 1991 written directly to the C.J. These were not replied to So he

petitioned the Prime minister for his assistance. The prime minister contacted the

C.J. who replied by his letter of 6th August 1991 as follows: Jaji Mkuu hana

mamlaka ya kutekeleza maombe ya Ndugu Mwakibete kwani kufanya hivyo

iftakuwa kukiuka katiba ya nche. In English The chief justice is not competent to

accede to the request of Mr. Mwakibete because to do so will violate the

country’s constitution. The C.J. said so according to the letter because the

commission was appointed by the president to advise him which task it had

discharged.

359
The appellant by then had already written another letter to the P.S. (Estabs) on

25th July 1991 (referred to as Annex B.1 ) in which he also challenged the

constitutionality of the contents of Annex A The letter was answered after

referring to various other communications thus therefore in view of the

explanation of the Registrar Court of Appeal in his aforesaid letter I am sorry I

have nothing to add. That reply was contained in a letter of 6th August 1991

which concluded by wishing he appellant all the best That was intended to put a

seal on two matters: the demand for a copy of the report of the Commission and

the challenged constitutionality of the contents of Annex A namely removal by

retirement in the public interest.

However the appellant was not satisfied. So he wrote another letter (Annex A to

the G.J on 16th August 1991. That letter was not replied to So he sent another

letter to the Chief Secretary on 25th September 1991 In reply to the latter the

Chief Secretary in his letter of 31st October 1991 reiterated thus

Madhumuni ya barua hii ni kukuarifu kuwa serikali sasa inchukukia suala lako

kama limifikia mwisho (finality) na kuwa hakutakuwepo tena kuandikiana barua

kati yako na Viongozi wa Serikali

In short he declared the matter finally close. Realizing that his efforts hithereto

were not getting him anywhere the appellant turned to the Courts. He filed an

application (High court Misc. Civil Application No. 264 of 1991) for leave to apply

for an order of certiorari against the P,S. (Estabs) and the Attorney General as

360
the respondents such order was granted by LUGAKINGIRA on 16th January

1992 on the same day the appellant opened misc. Civil Application No. of 1992

The respondents wete ordered to file counter-affidavits on or before 28th

February 1992 In the meantime the chief Secretary on 21st February 1992 wrote

to the appellant withdrawing Annex A which had purported to remove the

appellant from the office of judge by retirement in the public interest and

substituting there for Annex D.1 which sought to simply remove the appellant

from the office of judge as provided under RRR.of the Constitution. That letter

was routinely channeled through the C.J who promptly passed it on to the

appellant the next day. The counter-affidavit contained that letter as an annex

When the matter came up for hearing on 26th March 1992 a question arose

whether in addition to affidavits statements were required a procedure that the

learned judge (LUGAKINGIRA J.) thought was common in such applications

However, he adjourned the hearing to the following day to give the parties time to

research on the matter and present their findings The parties found out that only

two applications had been filed with statements in addition to affidavits while the

rest of the applications in the Arusha Registry had been filed with affidavits only.

Nevertheless it was conceded by both parties that filling statements in addition to

addidavits would occasion no injustice and so they agreed in writing under O. 43

R.2 of the civil procedure Code 1966 to do so and in fact did so. The counter-

statement of Mr. Mono the learned Senior state Attorney who represented both

respondent contained a preliminary objection which sought to strike out the

application for being superfluous , since Annex A which according to the prayer

361
of the appellant ought to be quashed by certiorari had already been withdrawn

and replaced by Annex D. 1 Mr. Mono concede that Annex A was

unconstitutional. The appellant objected condemning the procedure of filing

statements because that procedure gave Mr. Mono an opportunity to raise a

preliminary objection not contained in his counter-affidavit which gave him the

right to begin addressing the Court. However the appellant was RR. The

preliminary objection was heard and decided in fauour of the respondents and

consequently the application was struck out

In the course of the proceedings wide ranging submissions were made and the

learned judge made rulings on them

The position was that the learned judge made two rulings First he ruled that

Annex D.I was admissible and had effectively substituted for Annex A therefore

the application was superfluous second he ruled that removal from office

including removal from office of judge under Art 110 (7) of the Constitution is a

less serious matter than retirement in the public interest. The appellant was

aggrieved by the first ruling and the respondents by the second ruling Hence the

appeal ad the cross-appeal. The appellant appeared before us in person with a

twelve ground memorandum of appeal Mr. Mono for the respondents raised a

pre Liminary objection and sought to have three of the grounds of appeal and

two of the prayers by the appellant to be struck out because he said they were

irrelevant. We disallowed that objection but reserved our reasons which we now

proceed to give We found Mr. Mono preliminary objection to be novel. The

relevance or otherwise of a ground of appeal is a proper subject of a respondent

362
to response to the .. R of an appellant. So it was not proper of Mr. Mono to raise

a preliminary objection on the basis of irrelevance

The appellant too had a preliminary point which was not based on any rule of the

court of Appeal Rules 1979. We nevertheless used Rule 3 and heard him despite

Mr. Mono’s objection

The appellant had written to each one of us a letter complaining about the

discontinuance of payment of this monthly salary and allowances and prayer

that we should intervene administratively on his behalf and ask the executive to

revive the payments. He also accused the executive of committing contempt of

court by ignoring the order of MAPIGANO Ag, J.A. (as he then was) staying the

execution of the order of LUGAKINGIRA J. We decide against the appellant for

the following reason.

Admittedly LUGAKINGIRA J. by striking out the appellants application had

confirmed the appellants\ removal fro the office of judge However it was not that

order which has stopped the appellants salary and other benefits. These had

been discontinues before the learned judge was seized of the application. As

such the order by MAPIGAONO Ag J.A of a stay of execution of the order of

LUGAKINGIRA J. could never have had the effect of restoring the remuneration

of the appellant. As a matter of fact the appellant himself concede that much.

363
As we have already said the appellant had twelve ground of appeal but it would

appear that six of them grounds 2,3,7,9,10 and 11 are basically about one and

the same thing namely the allegedly wrong admission of Annex D.I by the

learned trial judge, The appellant submitted with al lot of force that Annex D. 1

was inadmissible and that if the learned judge had rejected it then there would

have been only Annex A on record, which was the object o the application for

certiorari In ground to the appellant contended that the admission of Annex D.1

was erroneous Yet in ground 3 he seemed to argue in the alternative that no

weight should be attached to that Annex at all The appellant went on to argue in

ground that Annex D.1 was not written in good faith and that this was one of his

reasons why it should not have been admitted at all. His other reason for

regarding Annex D.1 inadmissible were that its contents were designed to

preempt the judicial process and so it was a interference in the due

administration of justice by the Executive that was ground 10 while in ground 11

he contended that Annex D.1 was bad in law because of its retrospective effect.

In ground 9 the appellant was critical of the learned judge’s glassing over the

issue/doctrine of estoppel which was the appellant’s other argument for the

inadmissibility of Annex D.1.

We are of the considered view that the consolidation of the six ground into one

would not prejudice the appellants appeal in any way and so we have

accordingly decide to consolidate them we shall first deal with the admissibility of

Annex D.1 as the appeal stands or falls on that grounds alone.

364
Was Annex D.1 made in bad faith? The appellant began by faulting the learned

judge’s ruling and in our opinion correctly so the learned judge had said There is

no evidence that these letters reached their addresses or if they did that they

were replied to The letters in question are Annexes B.1 and B. 2 which

contained complaints by the appellant to the P/S (Estabs) and to the C.J

respectively

The learned judge talked of two thing on which he found no evidence and these

are whether the letter had been received and if received whether they were

replied to. Receipt of these two letters was specifically made an issue by the

appellant in the seventh paragraph of his affidavit in support of his application. In

the counter-affidavit of the respondents it was affirmed in paragraph 3 That all of

the facts as deposed in the affidavit except para 6 are true .. So the appellants

averment in his paragraph 7 that Annexes B.1 ad B.2 were received by the

respondents is true. Indeed the counter-affidavit went further to dispel any doubts

when it sad in paragraph 6 what is stated in paragraph 3 and 4 is based on

information obtained from president’s office

Establishment”. Thus the deponent obtained the information of the receipt of at

leas one of th two letters from the appropriate office. The appellant properly

submitted that parties are bound by their pleadings ( patel v. Fleet Transport

(1960) E.A 1025)

365
The appellant went further to point cut that the chief Secretary had written on 31st

October 1991 Annex X saying that the Government was not going to engage

itself in a discussion of constitutional matters The appellant argued that was a

reference to the contents of Annex B.1 and B.2 and that it necessarily implies

acknowledgement of receipt of the two letters. Mr. Mono did not really have a

reply to that contention. He merely said that Annex B.1 might have been received

but that there is no evidence that Annex B/2 was also received However Mr.

Mono cannot deny the fact that the respondents pleadings bind them to the

acknowledgement of receipt of the letters

The learned Judge was right when he said that there was no evidence that the

two letters were replied to. And that is precisely the argument of the appellant

that he received no reply at all but that some six months later and after the matter

was already in the court, the chief Secretary signed under his hand Annex D.1

was not bona fide. Mr. Mono’s response was that the delay is not evidence of

had faith. He stood his ground even in the face of the stark fact that Annex D.1

came when the matter was already in Court.

If it were mere delay in writing Annex D.1 we would have readily gone along with

Mr. Mono submission However the situation is complicated by the letter of 31st

October 1991 which the very Chief Secretary wrote to the appellant declaring

that the Government had no intention of opening a legal discussion concerning

the various articles of the Constitution which the appellant had cited in his letters.

As we have indicated above the appellant cited various articles of the constitution

366
when questioning the constitutionality of his removal by retirement in the public

interest However about four months after the above mentioned letter and with the

knowledge of the appellants application the Chief Secretary wrote Annex D.1

rectifying the unconstitutionality complained of the. The question is whether this

was done in good faith or as maintained by the appellant it was done in bad faith

Unfortunately, that question is made even more difficult to answer by Mr. Mono

admission that Annex A, the letter which proported to remove the appellant from

the office of judge by retirement in the public interest was unconstitutional. But in

the face of Annex D.1 Mr. Mono became aware of the unconstitutionality of

Annex A.

We have been troubled by the question whether this unconstitutionality of Annex

A was not apparent to the learned Chief justice when he passed on the letter to

the appellant and more still when the appellant complained to him about it. If the

C J was aware of the unconstitutionality and yet closed his eyes to that fact for

all that time then it could be inferred that Annex D.1 was indeed made in had

faith. However, if it escaped him which we find difficult to accept, then bad faith

could not be imputed. What we have said about the C.J is also true with regard to

the respondents one of whom is the Attorney-General who is the chief legal

advisor to the Government

After giving the question a lot of thought we are unable to agree with the

appellant that Annex D.1 was made in bad faith We are of the considered opinion

367
that the learned Chief justice as well as the Executive ought to have known that

Annex A was not in compliance with the Constitution. We are equally persuaded

to believe that the Executive wrote it and were determined to stick to it because

probably, they were convinced that I was in the best interest of the appellant we

shall elaborate on this at the appropriate juncture later on in this judgment.

Suffice it to say here that Annex D.1 was not made in bad faith We may as well

point out here that we have also disposed of the first ground of appeal that the

learned judge erred in holding that Annexes B.1 and B.2 had not been received.

The receipt of those Two Annexes is not part of the consolidated six grounds

concerning the admissibility of Annex D.1 However, it has been associated with

admissibility on the issue of bad faith which we have also disposed of

To go back to Annex D.1 the appellant contended that it is bad in law since it has

retrospective effect and that therefore it should not have been admitted in

evidence by the learned judge

The appellant pointed out that while Annex D.1 was dated 21st February 1992 it

cited the date of the removal from the office of judge as 13th May 1991 The

appellant referred us to the High Court of Tanzania decision in Shipping line v. R.

(1979) LR.T.n 61 at 246 in which it was held inter alia that termination of

employment with retrospective effect is bad in law. The appellant submitted that

the situation is worse in the case of employment such as that of a judge which is

protected by the Constitution. Mr. Mono pointed out that Annex A was written on

368
24th May 1991 informing the appellant that he had been removed by retirement

in the public interest with effect from 13th May, 1991 and that although that letter

too had retrospective effect as Annex D.1 yet the appellant has not complained

against it.

With due respect that argument of Mr. Mono does not appeal to us at all for two

simple reasons First we cannot say with certainty that the appellant would be

satisfied with the retroactivity of Annex. A He has not had the opportunity to

argue his application of Annex A. he has not had the opportunity to argue his

application for certiorari against that letter. So we cannot say that retroactivity

would not have been one of his grounds for seeking that it be quashed. Second

oven if for the sake of argument we take it that the appellant would not have

contested the retrospective effect of Annex A, we ask: Does his acquiescence

render the retrospective termination of employment lawful if he is right in his

contention that such termination is had in law?

There is no dispute that both letters communication the President’s decision

retrospectively However what we are concerned with here is Annex D.1 and the

369
question is whether the removal from the office of judge with retrospective effect

is lawful. The decision in Shipping Line v.R. by KISANGA J. as he then was is

undoubtedly of high persuasive authority. But does it apply to removal from as it

does to termination of employment? KISANGA J. was concerned with the

Security of Employment Act, Act, 574 At p, 244 the learned judge said : It is quite

clear that th notices to the first three employees which purported to terminate

their employment retrospectively were improper because notice must reach the

employee before the period of it runs cut which was not the case here” he did

not cite any authority for that statement but presumably it is Section 37 of Cap

574 Be it as it may that statute does not apply to the president. Section 3

provides

Nothing in this Act shall be construed as

Prohibiting restriction or otherwise
Affection the exercise by the president
Of his powers to dismiss remove from
Office in the service of the United
Republic or any member of the Local
Government Service or as empowering a
Conciliation Board to order the payment
Of the statutory compensation to any
Such person on account of his dismissal
Removal from office or termination of
Appointment by the President but save
As a foresaid this Act binds the United
Republic and every authority other
Than the president having the powers of
Dismissal removal termination of
Appointment or discipline in respect of
The civil service of the united Republic
Of the Local Government Service in
Relation to employees in such services

370
We are therefore of the opinion that an authority based on Cap. 574 however

persuasive is not relevant here But oven without that authority is removal from

office by an order of the President with retrospective effect lawful

As a general rule there are three possible alternative dates when an office or

termination of employment may lawfully take effect. Firstly, it any be the date of

his suspension or interdiction pending disciplinary proceedings or secondly it

may be the date when the decision to remove such officer from office or to

terminate that officer’s employment is made; or thirdly the date of the letter of

notification if that letter does not indicate any other date.

In so far as appointments by the president are concerned the common practice

seems to be that when such appointments are terminated the effective date is

that date when the president makes that decision to terminate Obviously the

officers concerned can only be notified of the termination after that decision had

been made. There is therefore a distinction between the date when the decision

is made and the date when the decision is communicated

Provision concerning removal from office of judge are contained in Article 110 (5)

to (8) of the constitution. When the issue of removal from office of judge arises,

the president appoints a commission to inquire into the matter and advise him

whether the

371
Judge ought to be removed from office. Where the Commission advises the

president that a judge ought to be removed from office then the president is

obliged to do so. The effective date of removal is the date when the president

makes the decision to remove the judge from office

During the month of April 1991 the appellant appeared before the Commission

appointed under Article 110 (6) of the Constitution to investigate the question of

removing him from the office of judge. On the 4th June 1991 the appellant

received a letter dated 24th May 1991 from P.S (Esbabs) (Annex A) informing him

that the president had removed him for the office of judge by retiring him in the

public interest as provided under Article 110 (5) (6) and (7) with effect from 13th

May 1991. That letter (Annex A) was replaced by another letter dated 21st

February 1992 from the chief secretary (Annex D) which stated that the

appellant had been removed from the office of judge with effect from 13th May,

1991 That is to say effective date of his removal from office was still 13th My

1991 The appellant contended that Annex D.1 was inadmissible because of its

retrospective effect. With respect we do not agree with the appellant’s contention.

The evidence before us is that the president made the decision to remove the

appellant from the office of judge on 13th May, 1991 and according to the general

rule enunciated above, that is not retrospective. The date of the letter informing

372
him of that decision is in our view immaterial although it would be desirable that

the communication of such a decision should not be unduly delayed. That

disposes of hat aspect of the consolidate of appeal

In principle laws when enacted should not have retrospective effect especially

when they adversely affect a person’s rights unless they expressly state so.

Retrospective laws are generally unjust and are to a certain extent forbidden,

certainly, under the constitution of the united States (Bonvier’s law Dictionary

Baldwins (1913) page 1068). The English Courts also hold that a stature should

not be construed so as to make it retrospective (3 B 551) Nothing but clear and

express word will give such affect to a statute. This legal principle would in our

view apply equally to administrative decisions.

The appellant also contended that Annex D.1 should not have been admitted

because it was a manifestation of the Executive interfering with the judiciary. His

he warned was an encroachment on the constitutional doctrine of the separation

of powers. We better quote his own words:

The executive was telling the Court Don’t

Give any decision on Annex A which is before
You as you proposed to do because that annex
Is unfavorable to my cause as a result I have
Decided to withdraw it and replace it with
Annex D.1 to which you should address your mind instead

373
The appellant then concluded by referring us to the three requirements of due

administration of justice as enunciated by Lord DIPLOCK in Attorney – General

v. times Newspapers Ltd

(1973) All E.R 54 at 72

The third requirement is material here and we quote it

Once a dispute has been submitted to a

Court of Law they (citianan ) should be able
To rely on there being no usurpation by any
Other person of the function of that court to
Decide it according to law Conduct which is
Calculated to prejudice any of these three
Requirements or to undermine the public
Confidence that they will be observed is
Contempt of Court.
The appellant contended that by introducing Annex D.e at that point of time the

Executive was usurping the judicial function of the court and so that letter was

palpably inadmissible .

Mr. Mono had two replies to that. First he said that Annex D.1was not calculated

to preempt the judicial process on the contrary it was meant to expedite it. Courts

he pointed out have in consider justifiable issues. Then Mr. Mono submitted that

Annex D.1 was still capable of being challenged in Court. All that the appellant

had to do was to amend the pleadings.

The crucial question here is whether or not the Executive’s release of Annex D.1

was or was not calculated to prejudice any of the three requirement and in

particular, the third one quoted above. How did the Executive by Annex D.1

374
usurp the function of the High Court of Tanzania at Arusha to decide the dispute

before it according to law? The factual situation of what has transpired leading up

to this appeal negates any allegation of such usurpation. But does it also dispel

an attempt to usurp? We are satisfied that it does. Admittedly, Annex D.1 was

written when the Court was seized of the dispute but this was also before the

respondents had filed their counter-affidavit and it was hence annexed to that

couner-affidavit. We have no doubt at all that the Attorney-General knew that his

counter-affidavit would not automatically stop the Court from hearing the

application. If anything at all he hoped to use it as he did to make a preliminary

objection. Still the court had to hear that objection and make a ruling on it That

could not have escaped the attention of the Attorney-General We fail to see,

therefore, how the substitution of Annex D.1 for Annex A could be regarded as

an attempt to usurp the judicial function

We might have been persuaded differently had we found that Annex D.1 was

written in bad faith. But as we have said we have but been so persuaded. Out

position is made stronger by the consideration of another aspect of the matter

involving section 34 C (3) of the Evidence Act 1967.

We are satisfied that there was neither usurpation not attempted usurpation by

the Executive of the judicial function of the High Court to decide the case before

it according to law

375
The appellant also raised the issue of estoppels both at the trial and at the

appellate stages. At the High Court level LUGAINGIRA, J. dealt with that issue

very exhaustively. Five and a half out of a total of fifteen typed pages, that is

slightly over a third of the entire judgment were devoted to estoppel. The learned

judge correctly observed that Section 123 of the Evidence Act 1967 is in pari

material with Section 115 of the Indian Evidence Act 1872

He then went on to consider three authorities to wit Sarat Chunder Day v. Gopal

Chunder Laha (1892) 19 I.A 203 Nurdin Bandali v. Lombank Tanganyika Ltd,

[1965] E.A 304 at 313 and then listed down three condtions for estopped to

operate. These are.

First, a tacit representation by one person

To another; secondly an intention that the
Representation should be acted upon by that
Other person; thirdly, action by that other
Person to his detriment should the maker of
The representation seek to repudiate it

The learned judge had no problems at all with the first two equipments. He found

them to exist. However the learned judge was of the opinion and a right one too

that the appellant never acted on the representation so that its withdrawal would

injure him for, otherwise he would not have been striving to obtain an order of

certiorari to quash the very representation. The learned judge found estoppel to

be unavailable on that account. In addition he rejected estoppel for another

reason .

Mr. Mono cited to the learned judge Sarka’s Law of Evidence 3rd ed. At p 1140

which provides that there can be no estoppel against the Government on a point

of law and construction of a statute. The learned judge also cited Lord

376
MAUGHAM in maritime Elective C. Ltd General Diaries Ltd [1937] 1 All E.R 746

at 753 GEORGES C.J. in Tarmal Industries Ltd, v, Commissioner of Customs

and Excise [1968] E.A 471 and D.P.P. v. Mwita Marwa [1988] T.L.R 306 all to the

same effect. He then concluded .

In the instant application therefore, Annexure

(sic) D.1 was validly issued to set right the
constitutional breach perpetrated in Annextures A.
And for my part, it matters not that this was
After the proceedings were commenced as I told
That court proceedings cannot be used to compel
Anyone to persist in defying the law. For these
Reasons I am again of the view that estoppel
does not avail itself

Briefly, that is the holding of the learned judge who is accused by the appellant of

glossing over estoppel

As to the third requirement of estoppel which the learned judge found not to have

been satisfied the appellant submitted that the essential point made by Sarkar is

that estoppel is based on the change of position brought about by the

representation or actions of a person bound by the estoppel . The appellant

pointed out that he as rising his salary. That he had to release his official car his

residential telephone had been disconnected and that his family had been set

asunder, all because of his reliance on the presentation that Annex A was valid

Mr. Mono remarked that these mattes had been raised by the appellant for the

first time at this stage and he submitted that they should be ignore., In all

fairness to the appellant however he did mention termination of salary even at

the trial but the learned judge had said that was a development arising from the

fact of his retiament and it occurred long before he filed the application. We

377
agree with the learned judge and the same could be said of the other detrimental

measure. But apart from that we wonder whether those measures would not

have been taken even under Annex D. As a matter of fact the measures

including threatened eviction from his (appellant’s) official residence persisted

and hence his application for an order of a stay of execution before MAPIGANO

Ag. J.A. We asked the appellant if he had been originally issued with Annex D.1

his position would have been different. His answer was that if Annex D.1 had

been given to him first he would have only surrendered the functions of a judge

but not the benefits for he would have remained a public servant. We shall deal

with this point when we consider the cross-appeal

Just as was the learned Judge we are satisfied that the third requirement

essential for estoppels to take effect does not exist

The appellant concede that estoppels does not lie against a stature but quick to

add that is so only in a proper case. He went on to say that estoppels cannot be

invoked to stop the performance or the performance in a prescribed manner

where a law enjoins performance of a duty and prescribes the mode of its

performance. He stated that it was a matter of having or not having jurisdiction of

competence or incompetence on the part of the one purporting to perform the

statutory duty. He submitted that where the performer has jurisdiction then

estoppel cannot apply. However where the performer lacks jurisdiction then

estoppel can be invoked. The appellant contended that in this case the president

was bound by the advice of the commission and could not alter it as evidenced

by the two differing letters: Annexes A and D.1

378
We again agree with the learned judge that all that the Executive did was o

correct the error glaringly obvious on the face of Annex A and that cannot be

subjected to estoppel. As for the last point of the appellant regarding the

alteration of the advice of the commission of judges we shall deal with it at the

appropriate juncture.

The appellant also contended strongly that Annex D.1 was inadmissible under

Section 32 C (3) of the Evidence Act, 1967 He said that where his application

presupposed that existence of Annex A the respondents through Annex D.1

denied that So the existence of Annex A, he contended was a fact in issue As the

author of Annex D.1 was person interested in the proceedings he argued that

letter was inadmissible under Section 34 C (3) of the Evidence Act 1967.

The learned judge dealt with section 34 C (3) at some considerable Length. He

was of the view that to quote his own words the provision deals with statement

which having regard to the time of their making and content, may be seen as

tending o influence the decision of the Court on disputed facts. The learned judge

then went on the examine Annex D.1 and formed the opinion that it did not deal

with facts but sought to straighten up a legal issue namely, termination in public

interest or removal under Article 110 (7) of the Constitution He then came to the

conclusion where a statement does not tend to establish a disputed fact and/or

where its import is on matter of law such a statement would not be excluded by

Section 34 C (3)

Now the appellant avers that Annex D.1 did not address itself to a point of law as

the learned judge erroneously held but to a point of fact. The appellant point out

379
that the two Annexes A and D.1 talk of two different things; namely retirement in

the public interest and removal. He went further to observe that a copy of the

report of the commission is required to establish which of the two letters is

authentic, He submitted that this is a question of fact and not of law and so

Section 34 C (3) does apply. Mr. Mono simply reiterated that the import of Annex

D.1 is not factual but legal

We have no doubt at all in our minds that the issue all along has never been

authenticity but legality. The appellant did not file this application to challenge the

geniuses of Annex A in communicating the recommendation of the commission

but to challenge its constitutionality The respondents concede though very late

that annex A was ultra vires the Constitution and issued Annex D.1 partly to

withdraw Annex A and partly to straighten up the legal position. So we cannot

find any fault with LUGAKINGIRA J. in his holding that Annex D.1 was not factual

but legal and therefore Section 34 C (3) of the Evidence Act, 1967 is inapplicable

The appellant also faulted the learned judge for failing to assess the weight to be

given to Annex D.1 since the two Annexes (A and D.1) were made with a gap of

some nine months between them The appellant repeated his allegation that both

letters purported to convey the recommendation of the commission and yet

spoke of two different things and that therefore one of them must be false and

that the learned judge had to determine that issue in order to decide what weight

should be accorded to Annex D.1 as required by Section

34 C (6) of the Evidence Act, 1967

380
However, the learned judge skipped that not because of oversight or misdirection

but because it was superfluous. In view of section 34 C (6) of the Evidence Act,

1967 which in the relevant part, provides:

In estimating the weight if any to be

Attaché to a statement rendered admissible
As evidence by this section .. (emphasis provide)

We ask whether Annex D. 1 was admitted as evidence under that section The

answer is obviously no. The appellant strove unsuccessfully to us that section to

prevent its admission. It has never been his desire that it be admitted under that

section. We have upheld the learned judge in his finding that Section 34 C is not

at all applicable. We fail to see how that section can regulated the weight to be

attached to Annex D.1

We are in total agreement with LUGAKINGIRA J that Annex D. 1 was

admissible it was properly admitted and that it effectively replace Annex A the

subject of the application before the High Court, thus rendering the application

superfluous. The preliminary objection was properly upheld. This disposes of the

appeal but we shall consider the other grounds since they attack other findings

by the learned judge and them there is the cross-appeal.

There are two grounds which we think we can dispose of together these are

grounds five and sex which the appellant make in the alternative. In ground fie

the appellant alleged that there wee two pieces of advice gives by the

commission as evidenced by annex A and D.1 he than went on to submit that

was wrong since the commission after it had made the first advice became

functus office Mr. Mono countered that by refuting the allegation of two pieces

381
of advice and asserted that there was just a wrong communication of the advice

which was later corrected.

We are unable to see why the appellant makes this contention. The pure factual

situation is that only Annex D.1 refers to the Commission Annex A does not even

mention that commission but merely refers to the directions of the president. That

would support the contention of Mr. Mono that there was a faulty communication

rather than that there were two different pieces of advice.

We honestly do not think that should detain us and particularly after we have

been satisfied that Annex D.1 effectively and properly substituted for Annex A,

Equally ground six which has been argued in the alternative has no merit. The

appellant questions the competence of the Executive to alter the advice of the

commission. Just as with ground five there is not even an iota of evidence to

support the allegation of such alteration of the advice of the commission Another

ground which has no merit is ground twelve. The appellant has attacked the

learned judge for having introduced the novel procedure of filing statements

which ushered in the preliminary objection that disposed of his application As we

have already narrated the learned judge wanted to hear submissions from both

sides on that matter. The next day however instead of submissions there was an

agreement between both sides to file statements and the appellant had in fact

gone armed with his statement. The appellant cannot bow be heard to complain

and this is especially so as the learned Chief justice has not as yet formulated

any rules of procedure to govern proceedings for prerogative writs and so he

382
filing of statements could not be said to have contravened any rules of procedure

In ground eight the appellant complains against the refusal by the respondents to

give him a copy of the report of the commission Mr. Mono began by opposing

that complaint but after some verbal tussle he concede that the appellant was

entitled to a copy of the report

Article 110 of the Constitution does not expressly require nor prohibit the

commission or the president to provide a copy of the commission report to the

judge under inquiry. While we are attracted to the appellant submission that if a

thing had not been specifically prohibited by a statute then it is allowed we

hesitate to formulated a principle that broad. We are however of the view that

releasing a copy of the commission’s report to the appellant in this case would

not have been unconstitutional

In criminal trials an accuse persons can apply for a copy of the judgment and

may even want it to be in his own language and section 313 of the Criminal

procedure Act 1985 decrees that it shall be given to him without delay Admittedly

this was not a criminal trial. However it was a quasi-judicial criminal inquiry. We

were given to understand by the appellant that there was a panel of three

commissioners all of whom were judges a prosecutor that the appellant defended

himself though nothing would have stopped him from retaining a counsel and that

witnesses were summoned and subjected to the same procedure as the one

under the criminal procedure Act 1985 in trials In such circumstances would it

be irregular to adopt the said section 313 and deliver a copy of the report to the

383
appellant in response to his repeated requests? We are convinced that it would

not be

Apart from that Article 13 of the Constitution deals with equality before the law.

Paragraph (a) of clause (6) of that Article has attracted our attention. It provides

(6) for the purposed of ensuring equality before the law the state shall make

provisions

(a) that every person shall when his

fights and obligations are being
determined be entitled to a fair
hearing by the court of law or other
body concerned and be guaranteed the
right of appeal or to another legal
remedy against the decisions of
Court of law and other bodies which
Decide on his rights or interests
Founded on statutory provisions

It is clear that the commission is a sort of body referred to here If a right of appeal

or another legal remedy against the decision of such body is envisaged then

obviously a copy of its report ought to be made available to the subject of the

relevant proceedings otherwise we fail to see how he could possibly challenge

the decision.

We want to make it abundantly clear here that we are not saying that the

appellant could appeal or seek another legal remedy under Article 13 (6) (a)

against the recommendation made under Article 110 (6) by the commission. We

know he made a submission to that effect at one stage in support of his claims

for a copy of the report. He told us that the report could be a subject of judicial

review However that issue has not strictly been before us and we do not want

384
even to seem to express an opinion one way or the other on whether or not Art.

13 (6) (a) is applicable to proceedings under Art. 110 (6) All that we have done is

to use Art 13 (60 (a) as further support to our view that the appellant had a right

to a copy of the report of the commission

The question is who is to supply that copy of the report? The learned judge had

said: As regards the Commission report the commission was by law required to

report to the president only. We agree with the appellant that he had never

suggested that the Commission had to report to him as well. He had merely

requested for a copy. The request was initially to the judiciary but in our opinion

that was not the department which had to send a copy of the report to the

appellant. The duty lay with the Executive.

The last ground of appeal we have to consider is the fourth ground which is

concerned with the meaning of removal from office. This is also the subject

matter of cross-appeal by the respondents

The appellant claimed that the term remove is ambiguous. However, he came

round the agree that remove or remove is not at all ambiguous But what follows

after one has been removed is uncertain as the constitution makes no specific

provision for when he discussed very seriously the two concepts of removal from

the office of judge and retirement in the public interest

385
The learned judge said that there was a mistaken albeit innocent belief that

removal form office and being retired implied the same thing. He went further to

consider Art. 110 (5) (6) and (7) and found that they talked of removal from the

office of a judge only but not the termination of appointment in the public service

generally lie then made reference to the meaning of the expression office in the

service of the Government of the United Republic as given under Art 151 (1) and

came to the view that [to] be retired form the public service is therefore a wider

step and a much more serious affair than merely to be removed from a particular

office like the office of a judge which Art. 110 (7) is all about

Mr. Mono challenged that. He submitted that retirement from public service is not

wider in scope or more serious than removal from the office of judge. In fact the

learned Senior State Attorney went further to suggest that the reverse is true. He

said that retirement from public service is a respectful termination of employment

As for removal he said the consequence would depend on the cause If removal

is for mental or bodily infirmity, then it would normally be retirement but if it is for

misbehavior then it would be summary dismissal Mr. Mono suggested that the

appellant falls under the latter category and that therefore he cannot fit anywhere

else in the public service Mr. Mono submitted that consequently the appellant

goes as he came. Whatever Mr. Mono meant by that we understood him to

imply that the appellant goes away empty handed

386
As we have already intimated the term remove is not at all ambiguous But it is

what follows next after the removal that is not clear. Could such a person be

employed elsewhere within the public service? Could he be given terminal

benefit or should be go as he came?

People come to the bench from various backgrounds Some were

Commissioners for lands Resident Magistrates Directors of public prosecutions

or state attorneys army officers professors or private practitioners. Suppose one

from these categories is removed from the office of judge or a justice of Appeal

does he go back where he came from or is that door also closed to him? Does a

person like the appellant who became a judge on promotion from the magistracy:

remain a public servant capable of being employed in other departments upon

his removal from office of judge or must he be regarded as having been

dismissed from the dismissed from the public service? These are troubling but

very pertinent questioner Presumably it was in an attempt to find answers to

these troubling questions that the respondents believed they had found a solution

in coining the objectionable phraseology removed from the office of judge by

retirement in the public interest. Under the pensions ordinance retirement in the

public interest attracts terminal benefits The concept of removal from the office of

judge has yet to be provided for by law and until such time the positions not

clear. That could be undesirable depending on the cause of removal

This is why we said earlier that the respondents and even the learned Chief

Justice ought to have been aware of the technical unconstitutionality of Annex A

387
but that they might have thought that was in the best interest of the appellant. So

the gross delay in rectifying that and the issuance of Annex D. 1 seen in this light

was not at all in bad faith That letter illustrates the dilemma that the authorities

must have faced in dealing with the removal of the appellant from office. Thus

whereas Annex A talked of the appellant being entitled to a pension for his public

service up to 13th may 1991 Annex D.1 is conspicuously silent on that point. No

wonder the appellant strenuously strove to have it rejected.

With all the good intentions of the respondents the method adopted was not in

accordance with the law. They should have clearly removed the appellant from

the office of judge under Art. 110 (7) and then they should have gone on to say

that for the purposes of terminal benefits the removal from the office of judge was

to be taken as retirement in the public interest. This they could have said either in

the same latter or in the same letter or in two separate letters.

There is only one way of looking gat the genesis of this dilemma. Article 110

accommodates a lacuna which ought to the redressed by legislation. This may

be done by the legislation either providing a catalogue for consequences of

removal or requiring every Commission appointed under Article 110 (6) to make

recommendations as to the consequences of removal if it recommends such

removal .

We do not agree with the learned judge that removal fro the office of judge is less

serious than retirement from the public service we agree with Mr. Mono

contention that the causes for the removal would determine the consequences of

388
the removal. But we reject the earlier contention by Mr. Mono that removals more

serious than retirement in the public interest and that it is tantamount to

dismissal.

Our opinion has the support of Article 144. That article deals with the removal of

controller and Auditor General He is another official whose security of tenure is

jealously protected. His removal appointed by the president to advise him on the

question of removal. The chairman of the tribunal and at least half the members

the minimum and number of whom is two are required to be judges or persons

ho hold or persons who have hold office as judges of the High Court or justice of

Appeal in any country which is a member is a member of the commonwealth of

Nations. The president is bound by the advice of the Tribunal. Then clause (6) of

that article provides

A person who holds or has held the

Office of Controller and Auditor
General shall not be eligible for
Appointment to or to act in any other
Office in the service of the united
Republic

Is it an oversight that Article 110 does not contain such a clause? We think not.

The reasons for an ex-controller and Auditor General being prohibited from

being employed in any other office in the service of the united Republic are not

difficult to see. Such officer would have proved and queried the accounts of the

departments of the Government in the course of his ser ice. Obviously if such

officer is appointed to any other office in the public service this will not only

389
demean him but will also undermine the office of Controller and Auditor –

General hence the prohibition. In the case a judge there is no such prohibition.

This to us mean that a judge could be employed elsewhere in the public service.

What should determine that in our opinion is the nature of the reasons for his

removal from the office of judge

What are the consequences of the removal of the appellant as communicated in

Annex D.1 to him? That is a difficult question. The report of the Commission was

not part of the record of appeal so we do not know what led to his removal and

therefore it is not easy to determine what the consequences should be. However

we infer from the abortive efforts of the respondents which we have described

above that they were willing to treat the appellants as if he had been retired in

the public interest. Thus they were ready to give him his pension. It follows that

the nature of the reasons for his removal was such that he ought not to lose his

pension We therefore give the appellant the benefit of the doubt and we order

that he be given his pension with effect from 13th May 1991 the effective date of

his removal

There is one other issue on which we wish to express our feelings and that is the

manner I which this whole matter was handled According to the appellant the

whole matter starred with an announcement on Radio Tanzania Dar es Salaam

on 13 March 1990 that president Mwinyi had suspending the appellant from his

office of judge on ground of suspected corruption and that he had appointed a

commission to investigate the matter. This announcement was also carried by

390
the Daily News and Uhuru newspapers on 14th March 1990 According to the

appellant the commission to investigate the allegation was not appointed until

March 1991 a year later.

If this contention is true then the purported suspension was clearly unlawful

According o Article 110 (8) of the constitution a judge is only suspended from

performing he functions of his office after the question of removing him from

office has been referred to a commission appointed until March 1991 the March

1990 purported suspension was unlawful It is most regrettable that such an

irregularity was allowed to occur

The tardiness with which the question of the appellants removal from office was

dealt with after the commission’s recommendation also leaves a lot to be desired

Apparently the Commission submitted its recommendation regarding the

appllant’s removal from office before the 13th May 1991 the appellant was

informed of the decision on 24the May 1991. The appellant was informed of the

decision on 24th May 1991 vide Annex A. on 23rd July 1991 the appellant wrote

to P.S. (Estabs) to protest the decision Annex B.1 to this the P.S. (Estabs)

replied on 6th August 1991 regretting he had nothing to add. However, on 25th

September 1991 the appellant wrote again this time to the Chief Secretary State

House reiterating his dissatisfaction with the decision. To this there was no

response until 31st October 1991 The response was to the effect that the matter

had reached its finality and that the Government would not entertain any more

correspondence on the subject However on 21st February 1992 the Chief

391
Secretary wrote to the appellant Annex D in which he sought to replace the

contents of the letter of 24 may 1991. By this date the appellant had already

initiated proceedings in Court

We feel that this matter could have been attended to in a more expeditious

manner and could have been handled more carefully considering that it involved

the very livelihood of a public official and a very senior official at that a judge of

the High Court we can only express our hope that in future the strict letter of the

constitution and the law will be followed and that matters of that sort will be

handle more diligently.

That not withstanding the appeal is dismissed the preliminary objection was

properly upheld and the application by the appellant was rightly struck our.

Further, the cross-appeal is allowed to the `extent that the appellants is no longer

a person in the RRR.. of the united Republic for 13th My 1991 but that he is to

have his pension with effect from that date we make not order as to costs It is so

ordered

DATE ARUSHA THIS 25TH day of October 1993

A.S.L. RAMADHANI

JUSTICE OF APPEAL

392
M.D. BOMANI

Ag. JUSTICE OF APPEAL

J.L. KANYWANYI

Ag. JUSTICE OF APPEAL

I certify that this is a true copy of the original

E. J. NYAMASAGARA

DEPURY REGISTED

IN THE OLCH OF TANZANIA

DAR ES SALAAM

RRCIVIL APPLICATION NO. 68 OF 1994

393
SYVESUER RR.210 RRRRR..R. APPICATIONS

Vorsus

THE UNIVERSITY OF DAR ES SALAAMRRRR..RR.. RESPONDENT

R U L DI N G S

KYANDO j.

The application has been brought by students who were in the first year of the

Faculty of RR University of Dar es salaam but were discontinued from their

studies for next was oiled absenting themselves from an examination It is an

application for an order of Certiorari to remove to the did court and quash the

decision by the respondent to permanently dismiss the applications from the

University of Dar es salaam and an order of mandamus to compel the

respondent to allow the applications to return to the University of Dar es salaam

campus to continue with their studies There is also a proper for costs of the

application and any other relief(s) which this court may deem proper and just to

RRR..

The application is made under section 2 (2) of the judicature and Application of

laws ordinance Cap 453 and Section 95 of the Civil procedure code 1966 Section

17 (2) of the law reform (tatal) Accidents and misollaneous provisions )

ordinance (amendent ) act 1968 (Aot No. 25 of 1968) and any ending provision of

the law it is by

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRR

394
Both parties are represented by counsel the application are

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

MISC CIVIL APPLICATION NO.1/15

TANZANIA AIR SEVICES LTD RRRR..APPLICANT

VERSUS

1 MINISTER FOR LABOUR RRRR RESPONDERTS

2. ATTORNEY GENRAL

3. COMMISSIONER FOR LAROUR

RU L L I N G

SAMMATTA J.K

In one of the his well-known books The Road to justice Sir Alfred Denning

discussed the importance of a judge giving reasons for his decision. He states as

follows at p 29

The judge must give reasons for his decision for by so doing he gives proof tha

he has heard and considered the evidence and arguments that have been

produced before him on each side and also that he has not taken extraneous

considerations into account. It is of course true that his decision my be correct

even though he should give no reasons for it or even though he should give no

reasons for it or even give a wrong reason but in order that a trial should e be fair

395
it is necessary not only that a correct decision should be reached but also that it

should be seen to be based on reason and that can only be seen if the judge

himself states his reasons Furthermore if his reasons are at fault then they afford

a basis on which the party aggrieved by his decision can appeal to a higher court

No judge is infallible and every system of justice must provide for an appeal to a

higher court to correct the errors of the judge below. The cry of Paul I appeal

unto Ceaser represents a deep-seated human response. But no appeal can

properly be determined unless the appellate court knows the reasons for the

decision of the lower court For that purpose if for no other the judge who tries the

case must give his reasons

In the application now before me I have to determine whether in making his

decision on a reference to the Minster for labour (the minister) under s.26 of the

security Employment Act 1964 cap 574 (that act) That labour commissioner (the

commissioner) who exercises powers delegate4d to him by the minister under

s.44 is under obligation I law to give reasons. The application by way of chamber

summons is for an order of certiorari to bring up and quash to labour

commissioner’s decision by which he confirmed a decision reached y the

conciliation Board of Dar es salaam that the respondents whose services with his

employer the applicant company were terminated be re-instated The reference to

the minister consisted of a two-page document in which the Board ‘s decision

was strenuously attacked . The commissioner’s decision which was

communicated to the applicant company on Form 8 was couched. When

translated in the following word IN ACCORDANCE WITH SECTION 26 (2) OF

396
THE SECUTITY FO EMPLOYMENT ACT 1964 I CONFIRM THE DECISION OF

THE CONCILIATION BOARD THE EMPLOYEE SHOULD BE RE-INSTATED “

Not a single reason was given for this decision section 27 (1) of the Act makes a

decision of the minister under s. 26 final and conclusive. The subsection reads as

follows

27 – (1) The decision of the minister on a reference to him under section 26 and

subject to any decision on a reference to the minister there form the decision of

a Board on a reference to it under this part

a. shall be final and conclusive and

b. shall be binding on the parties to the reference and the relationship

between the parties in consequence of the matters in respect to which the

reference was made shall be determined accordingly and

c. may be enforce in any court of competent jurisdiction as if it were a decree

Mr. Kalunga for the applicant company strenuously attacked the

commissioner’s decision. He contended that the failure by the commissioner

to give reasons for the decision makes it a nullity According to the learned

advocate although in the past the decision –maker had no duty under the law

to give reason for his decision the trend in some common law jurisdictions

now is to establish a right to reasons He went on to submit that to prevent

decisions based on caprice or mala fide a right to reasons should be

recognized Mr. Mwidundam Senior state Attorney, representing all the three

respondents, opposed the application. Quite rightly, he drew my attention to

the fact that there is no provision in the Act imposing a duty on the minister or

397
commissioner to give reasons for their decisions made under s.26 of the Act.

According to the learned Senior state Attorney, instead of bringing the present

application the applicant should have sought from the commissioner reasons

for his decision. Mr. Mwidunda urged me to dismiss the application

What is the law on this matter? There is under the common law, no general

requirement that public authorities should give reasons for their decision: see

Breen v Amalgamated Engineering Union and others [1971] 1 Q.B 175, 190, -

191,Rv – Gaming Board for Great Britain ex.p. Benaim and Khaida [1981] 1

W.L.R. In former case LORD DENNING M..R. posed and proceeded to

answer the question whether a statutory or domestic body is bound in law to

give reasons for its decision. He said, at pp. 190 –191: ought such a body,

statutory or domestic, to give reasons for its decision maker to give reasons

for his decision has been criticized by professor H.W.R wade in his book

Administrative law 6th ed (low-priced edition), at p. 548 where he states as

follows:

Unless the citizen can discover the reasoning behind the decision,

he mat be unable to tell whether it is review able or not, and so he

may be deprived of the protection of the law. A right to reasons is

therefore an indispensable part of a sound system of judicial

review. Natural justice may provide the best rubric for it since th

giving of reasons is required by the ordinary man’s sense of justice.

It is also a healthy discipline for all who exercise power over others.

No single factor has inhibited the development of English

398
 administrative law as seriously as the absence of any general

obligation upon public authorities to give reasons for their decisions’

And at p. 934 of the same book, the learned author states Reasoned

decisional are not only vital for the purpose of showing the citizen that he

is receiving justice: they are also a valuable discipline for the tribunal itself

[F] or decisions generally a statement of reasons is one of the essentials

of justice”

The importance of giving reasons for a decision is also discussed by

Geoffrey A. Flick in his book Natural Justice Principles and Practical

Application in which at p. 87 –88, he says: First, the requirement of a

reasoned opinion provides considerable assurance that the decision will

be better as a result of its being properly thought out, Second reasons will

enable a person who has a right of appeal to determine whether he has

good grounds for an appeal and will have to meet if he does decide to

appeal. In this regard, if an administrative determination is not the result of

a unanimous vote of the decision makers, the minority opinion may be of

considerable value to an unsuccessful party Third, reasons will make a

tribunal more amenable to the supervisory jurisdiction of the courts and

will ensure that tribunal is acting within its powers that is to say reasons

will inform a person why a decision has been made and will make

manifest any errors o law. Fourth, reasoned opinions will encourage

public confidence in the administrative process. As was noted in a leading

English case, even though a decision may be perfectly correct, if a party

399
was not given reasons he was left with the real grievance that he was not

told why the decision had been In re Poyser and Mills Arbitration [1964] 1

Q .B 467,478. The exposure to public scrutiny and criticism is healthy R

Fifth, reasons act as a check on the exercise of discretion and expertise

and will ensure that a tribunal has performed its functions of considering

relevant factors (Davies v price) [1958] 1 w.l.r 434 and will prevent

arbitrary action: Donaldson v Board of Education of North Wildwood 320 A

2d 857 (1974) Reasoned opinions also provide additional guidance to

those who advise parties as to their future conduct

I would add that in so far as natural persons are concerned, giving

reasoned for a decision constitutes a recognition that the parties are

rational beings. Should I, in determining the instant application, apply the

common law as it now stand or should I apply it after modifying it? This

court has under s.2 (2) of the judicature and Application of laws

Ordinance, Cap 453 power to vary that law so as to make it suit local

conditions. Should I use that power in his matter? I think I should. It

seems to me that the interests of justice call for the existence, in common

law, of a general rule making it mandatory in matters of importance fore

public authorities, a term I use to include statutory and domestic bodies to

give reasons for their decisions. But what are matters of importance? It is

neither desirable nor possible to define that term. But certainly it should be

taken to include all matters in which the liberty, livelihood or reputation of

the individual is concerned or in which proprietary or pecuniary rights or

400
interest are at stake. In any other situation the decision-maker should be

bound to give reasons only if he is requested by a party to do so. In

reaching the view that in this branch of the common law variation is

necessary I have been greatly encouraged by the memorable words of

DENNING, L.J in Nyali Ltd v. Attorney-General [1955] All E.R. 646.

Discussing the proviso to Article 15 of the East Africa order in council,

1902 as amended by the East Africa order in Council of 1911, which

conferred similar power on the High court of East Africa to modify the

common law, the learned lord justice said at p. 653

The proviso says, however that the common law is to apply subject to

such qualification as local circumstances render necessary. This wise

provision should I think be liberally construed. It is a recognition that the

common law cannot be applied in a foreign land without considerable

qualification. Just as with an English oak so with the English common law.

You cannot transplant it to the African continent and expect it to retain the

tough character which it has in England. It will flourish indeed but it need

careful tending. So with the common law. It has many principles of

mainifest justice and good sense which can be applied with advantage to

peoples of every race and colour all the word over but it has many

refinements which are not suited to other folk. These off – shoots must be

cut away. In these far off lands the people must have a law which they

understand and which they will respect. The common law cannot fulfill this

role except with considerable qualifications The task of making these

401
qualifications is entrusted to the judges of these lands. It is a great task. I

trust that they will not fail therein.

Some people may argue that varying the common law in the manner I

have indicated would result in placing more burden on the already busy

decision – makers. This is an attractive argument, but I think Geoffrey A.

Flick’s counter-argument in his book cited supra, outweighs that argument.

At p. 89 the learned author states:

At least two arguments have been advanced against the giving of reasons

would impose additional administrative bidden and might well be an undue

drain on the resources of an agency Such burdens may even result in the

giving of canned reasons. Second reason may hinder the manner in which

a discretion is exercised and it may be thought that the exercise of some

discretion should be unreviewable by the courts But consideration of

administrative expediency should not mitigate principles of fairness and

few, if any discretion should be unreviewable

In my considered opinion it is a matter beyond rational controversy that to

borrow the language of the learned author in the book just cited

fundamental requirement of fair play requires that6 parties should now at

the end of the day why a particular decision has been taken I think it is

intolerable in a democratic society that the law should allow a decision

maker to whom an appeal or reference is made to make his decision

without giving reasons why he has reached that decision The giving of

reasons said Lord Denning M.R in Breen’s case supra (at p.191) is one of

402
the fundamentals of good administration Bearing in mind the vast

differences which exist between our people and those of England in both

social and cultural fields and especially their knowledge of and attitude

towards decision-making public bodies and taking into consideration the

comparable educational backwardness of the majority of our people I think

it is in the inters of justice and fair play that the common law relating to the

giving of reasons for decisions should be qualified in the manner I have

endeavored to indicate In my considered opinion, a duty to give reasons

and a right to them should be recognize by our law and treated as being

of decisive importance in administrative justice Although a decision of the

minister of commissioner under s.26 of the Act is according s. 27 (1) cited

supra, final and conclusive that does not mean the decision is not subject

to review by courts That remedy is not excluded by those or similar words

see Healey v ministry of Health [1957] 1 All E.R 796 Taylor v National

Assistaance Board [1957] 101 and Tehrani and Another vi Rostron [1972]

1 Q .B No appeal will lie against decisions protected by such words or

phrases, but an aggrieved party may come to this court and ask for

prerogative orders Mullity of a decision is not protected by words final or

conclusive. It follows as day follows night, that the decision which the

applicant company has complained against in the instant proceedings falls

under this court’s surveillance it should perhaps also be pointed out that

nether the failure not the refusal of a decision-maker to give reasons for

403
his decision is a sufficient exclusion of the court’s surveillance see pad

field v minister of Agriculture, Fisheries and Food [1968] A.C. 997

I have sufficiently demonstrated. I hope why I am of the opinion that the

commissioner failure to give reasons for his impugned decision is a

serious irregularity which makes that decision a nullity in law. An order for

certiorari, like other prerogative orders is a discretionary remedy. In my

considered being exercised in favourt of the applicant company. Mr.

Mwidunda submitted that certiorari cannot be used as an appeal. I agree

But is a rule of common law that where a determination by a tribunal has

been quashed by certiorari, the court may in its concretion., refrain from

awarding a mandamus to direct the tribunal to predetermine to matter if

satisfied that the tribunal will duly observe the law upon a rehearing

notwithstanding that the court could have effectively enforce an order of

mandamus see Halsbury’s laws of England vol..I para 125 page 135

should I invoke that discretion an confine myself to quashing the

commissioner’s decision should I notwithstanding that there is not such

prayer in the application make an order of mandamus directing

predetermination of the reference? I confess that this question has

exercised y mind quite considerably but in the end I have reached a clear

opinion on it. Quashing the Commissioner’s decision and letting the

matter lie there will be unsatisfactory to the applicant company as the

decision of the conciliation Board complained against will still be in force it

seems to me having given the matter careful attention that an order of

404
mandamus should be made but it must be directed to the minister himself

and not the commissioner. I am, of course aware that by Govt. Notice No.

283 of 1971 the minister has in terms of s.44 of the Act, delegated the

function imposed and the powers conferred u[on him to hear and decide

references to the commissioner. It is my view that delegation does not

make it legally impossible for this court to make an order of mandamus

directing the minister to determine the applicant company’s reference. The

law is that delegation does not imply a parting with powers by the person

who grants the delegation see Huth v Clarke (1890) 25 Q.B.D 391

Gordon, Dadds & co. v Morris and others [1945] 1 All E.R. 616 and

manton v Brighton Corporation [1951] 2 All E.R 101 In Huth’s case supra

LODR COLERIDGE C.J said at pp.394 – 395

But delegation does not imply a denudation of power and authority the

word delegation implies that powers are committed to another person or

body which are as a rule always subject to resumption by the powers

delegating and many examples of this might be given. Unless therefore. It

is controlled y statute the3 delegating power can at any time resume its

authority. And at the latter page WILLS J said among other things

Delegation as the word is generally used does not imply a parting with

powers by the person who grants the delegation. But points rather to the

conferring of an authority to do things which otherwise that person would

have to do himself. The best illustration of the sue of the would is afforded

by the maxim Delegates non protest delegate as to the meaning of which

405
in Broom’s Legal maxims under the law of contracts: it is never used by

the legal writers, so far a I am aware as implying that the delectating

person parts with his power in such a manner as to denude himself of his

rights

While I do not cast any aspersions upon the ability of the commissioner to

deal with the reference with an impartial mind I feel that for justice not only

to be done but also to be seen to be done the reference should now be

determined by someone else the minister himself. I entertain no doubt that

I have inherent power to make the order of mandamus notwithstanding

that there is no prayer for it

Before parting with this application, I should like to make it perfectly clear

that throughout this ruling I have assumed,

Without deciding that the conferring of ad judicatory powers upon the

minister does not violate the constitution of the united Republic.

For the reason I have given I grant the application for order of certiorari

and hereby quash the commissioner decision confirming the decision of

the conciliation Board The Minister for labour, the first respondent is

hereby directed to personally determine the applicant company’s

reference to accordance with law as laid down in this ruling There will be

an order for const against the respondents ’

406
6. EXERCISE OF DISCRETIONARY POWERS

1 Abdi Athuman & 9 others v DC tunduru& 3 others

consolidated Misc. Civil cases No. 2&3 of 1987
2. Festo Balegele & 784 others v DSM city council
Misc Civil cause no. 90 of 1991
3. James Gwagilo v AG, Civil Case No. 23 of 1993
4. Mwakibete v Principal Secretary & AG HC at Arusha
Misc. Civil Application No. 11 of 1992
5. Shekimweri v AG Misc Civil case No. 3 of 199

IN THE HIGH COURT OF TANZANIA

407
 IT
RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR
RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR
RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR
RRRRRRRR.

VERSUS
1. THE DISTRICT CONTISSIONER
OF TUNDURU DISTRRICT
2. THE DISTRRICRRR
3. THEDESTRICT
4. THE TOWN DISTRICT

Rubama
On 25th June 1987 while at Mninga Mbinga District I heard and granted
two application Misc. Application No, 4 of 1987 by six applicants namely
Mohamed Ally Athumani, Adamu Husseni Shali Komba Ally Ahmed Elimi
Adbi and Mohamed Omari against the his Advocate Mr. Mwingira of
Mwingir and Company he was told that th decision to confiscate hid
trading license had been taken by the Regional of ones and security
Committee. Mr. Iselen further submitted that this court the had no powers
to confiscate or order confiscation of business Lenience
Mr. Mselen submitted that in the court in the first five applicants in the
application before the namely RR Ally Athumani and Abdi the District
Commissioner of So District
RRRRRRRRRRRRRRRRRRRRRRRRRRR.

Ni mategemeo yangu kwamba kwa kuwa utakuwa huru shughuli yeyote

ya halali ya kukupa riziki yako utatakuwa umeRR kurudi nyumbani
kwenu kwa hiari yako mwenyewe Endapo utashidwa kufanya hivyo
itabdidi uondolewe kwa nguvu

408
Mr. Mselem was at a loss to know under which law the District
Commissioner had taken his actions. He submitted that this decision by
the District Commissioner was arbitrary and unlawful far if the District
Commissioner purported to have acted under Cap. 104 the applicant did
not fall under the category of persons fit for removal as was required
under section 3 of the above mentioned Ordinance (Cap,104) All the
applicants were people with reputable means of livelihood none and been
convicted any criminal offence and all were of the age that did not render
them subject to control by other people. Further they had settled homes
within the Town/District of longer The action by the District Commissioner
of Songea therefore was in access of his jurisdiction even if one were to
find that the District Commissioner in ordering the removal of the five
above manned applications had been acting under Cap. 104 As for had
been issued to him. The reason given for the removal were to the effect
that the said applicant has no work in Songea and was suspected of
having illegal dealings in Government trophies. Mr. Mselem submitted that
the applicant has reputable means of livelihood: had a farm, an hotel and
a guest house. The last two businesses were licensed businesses. He
further submitted that Cap. 104 does not say that a person suspected of a
criminal offence was liable for removal from a certain area. He concluded
his submission for the sixth applicant by stating that like in the case of
thane first five applicants the removal order that had been issued in
respect of the sixth applicant was arbitrary and unlawful

In concluding his submission for the application, Mr. Mselem asked the
court to find that a prima facie case had been established in respect of the
applicants and that leave be granted for them to apply letter Ref. No.
DAO/T.30/VOL.IV/53 (exhibit P.2) quoted above i.e. that force would be
used to remove the applicants to their homes should they fail to leave
Songea District by 30/6/97 and as the applicants if allowed by the court
were going to be heard not earlier than 30th June 1987 Mr. Mselem

409
applied for an order of Temporary Injunction to refrain the District
Commissioner of Songea District from enforcing the removal orders
issued against the above mentioned six applicants requesting them to
leave the District of Songea on or before the 30th day of June, 1987 until
the determination of the application for orders of Certiorari and Mandamus
that would be filed y the applicants with the court.

In the case of Misc. Application No. 5 of 1987 ever and above the Affidavit
by the counsel Mr. Mselem submitted that the four applicants in the
application namely:Abdi Athuman Saidi Ally, Mohamed Athumani and Lali
Athumani were all resident of Tunduru District. All the four applicants had
been in Tunduru District for considerable period of time and were engaged
in lawful businesses which in some cases involved farming. He submitted
that all were Tanzanians. All these four applicant had applied for renewal
of their business lioness for the year 1987/88 but that for me reasonable
around their application were refused by the District Executive District of
Tunduru District. The grounds for refusing the application were not in
conformity with s.12 and 21 (j) of Business Licencing Act No. 25 of 1972.
Further in refusing the applications by the applicants for the renewal or
their business licences the first and the second applicants were served
with removal orders issued by the District Commissioner of Tunduru
District stating that they the applicants were undesirable persons. The
removal orders specified that the applicants be out of Tunduru District
before or by the end of Jun 1987. The District Commissioner of Tundure
Distinct did not specify any reason for their issuance. Mr. Mselem
submitted that if leave to file for orders for certiorari and Mandamus was
granted the said removal orders were going to be produced in court,
orders said to have been issued undr Cap. 104 Mr. Mesle did however
submit that Cap 104 was not application in Tunduru District. In the
altepatic MrRRR submitted that should the court find cap. 104 For that
section to be involved the persons to be removed must be that as R..

410
under s. 3 (3) of Cap. 104 and none of the applicants fell under thin
category. Each had a settled home within the Tunduru District and each
was of age that did not render him subject ro control by another person.
Further no one of the applicants was covered under s.3 (2) of Cap. 104
each of the applicants had never been convicted of any criminal offence
had lived in Tunduru District for considerable period of time they all have
reputable means of livelihood Mr. Mselem smutted that the District
commissioner of Tunduru District had acted without jurisdiction. He further
submitted that the District Director of Tunduru District in refusing to grant
Lusiness Licenses to the four applicants had acted without jurisdiction and
he prayed that the court grant leave to the four applicant to file an order of
certiorari to quash this decision and further that the applicants be
permitted to apply for order of Mandamus to compel the District Director
of Tunduru District to consider the applications by the four applicants for
business licenses for the year 1987/88 in accordance with the law. Mr.
Mael concluded by praying that the court find a prima facie case o enable
the four applicants be granted leave to apply for orders of certiorari and
Mandamus established. Subject to the counts decision to grant or refuse
the said leave the applicants files and application for an order for
Temporary Injunction to refrain the Tunduru District Commissioner from
implementing or enforcing the removal orders intended to be conested
before the determination of the application if leave to file was granted. Mr.
Mselem submitted that if the District Commissioner from implementing or
enforcing the removal orders intended to be contested before the
determination of the application if leave to file was granted. Mr. Mselem
submitted that if the District Commissioner of Tundure District was not
refrained form enforcing his orders undue hardships would be caused to
the applicants 25 only few days remained before the time given to the
applicants to remain in Tundure District expired.
Mr. Sengwaji appearing bothe for the District Commissioner Songea
District and the town Director of Songea Town Council in Misc. Application

411
No. of 1987 and for the District Commissioner Tundure District and the
District Executive Dirstor of Tunduru District in Misc. Application No. 5 of
1987 submitted that the issues raised in the affidavits and RR by Mr.
Mselem raised important matters of law for the court to investigate Is
RRR but that he had not been involved by the District Authorities of
Songea District and Tunduru District before the taking of the decisions by
the said District but that he found nothing now in the behavior of the
District officials in not involving the Attorney General’s Chambers on such
matter as it has never been the pretior some officials in the District the
Cultivate a habit of involving Attorney general’s Chambers on important
matter such as there Mr. Lengwaji submitted that he had had an
opportunity of RRRR.. RRRRRR. Of the applicants and that he had
no doubt in his mind that the action being complained against asd set out
above and on which Mr. Msele bad submitted at length and with which
submission he Mr. Sengaje associated himself did not follow the laid
down/procedures. He submitted that looking at authorities quoted by Mr.
Mselem he would say that was a proper case for the doubt to permit the
six Songea applicants and the four Tunduru applicators to file for orders
for Certiorari and Mandamus/ Bearing in mind that removal orders issued
to the tem application were enforceable in a few days time sand probably
before the hearing of the application for orders for Certiorari and
Mandamus if the application before the court was granted, he felt that
issuance of Temporary Injunction Orders to refuin the District
commissioner of Songea District and the District Commissioner of
Tunduru District from enforcing he respective issued removal orders
pending the determination of these proceedings appropriate.

On examination so the affidavits filed by Mr. Mselem in respect of Misc.

Application Mo. 4 of 1997 his representations is court in Support of the
affidavit and his affidavit in respect of the Misc. Application No. 5 of 1987
strengthened by his verbal representations in court in support of the

412
affidavit and the representations of Mr. Sengwaji who had appeared on
hehalf of the District Commissioner of Songea District and the Town
Director of Songea Town Council in respect of Misc. Application No.
Application No. 4 of 1987 and for the Desticect Commissioner of Tundure
District and District Executive Director of Tunduru District Council in
respect of Misc. Application No. 5 of 1987 and bearing in mind
constitutional rights of the applicants were in issue I found that prima facie
cases to enable the tem applicants be granted leave to apply for orders of
Certiorari and Mandamus made out. Accordingly necessary leave for the
applicants to apply for order of Certiorari and Mandamus were granted. I
also granted the applicants applications for issuance of Temporary
Injection against the District Commissioner for Songea District refraining
him from on forcing removal orders issued against the six applicant’s that
required them to be but of Songea District on or before 30th day of June,
1987 until the determination of the applications for orders for Certiorari
and Mandamus permitted to be filed with this court by the applicants. Also
granted was the application for an order of Temporary Injection to refrain
the District Commissioner of Tundure District from enforcing the removal
orders issu against Abdi Athumane and Saidi Ally requiring them to leave
the District of Tunduru on or before the 30th day of June, 1987 until the
determination of their application for orders for Certiorari and Mandamus
permitted to be filed with this court by the applicants
On 8th of July, 1987 this court started hearing the cases for the
applications The application filed in respent of the six applicants in
Songea District against the District Commissioner of Songea District and
the Town Director of Town Council Songea and applications by the four
applicants against the District Commissioner of Tunduru District Executive
Director were, for convenience, consolidated. Nine witnesses testified for
the applicants and two for the respondents.

413
Mohamed Ally Athumani P.W.l, testified that he was a Tanzania and
Mgunya by tribe. He has been in Songea Town from 1970 selling fish at
Tunduru Newala Masasi and Songea up to 1980 when he switched into
Hotel business in 1982. he had first opened his hotel around Maji Maji
Stadium called Mwambao Hotel up to 1984 when he changed the name
to Bajuni Hotel now situated at Majenge Co he mentioned that he had
been running this hotel in accordance with the law and that he had been a
law abiding citizen loyal to the Government and to the party. Mohamed
Ally Athumani PWl, further testified that before his business license
expired on 30th April, 1987, he had applied for its renewal but his
application for business licence was refused sim;u because he was a
Mgunya by trie, He had been told at the Town Council that no business
licences were going to be issued to Wagunya and
Wasomaji: no other reason apart from this for the refusal of the business
licenc was given to him nor was it elaborated to him as to why Waguny
and wasomaji were isolated for this treatment . Dissatisfied by this reply
he went to see the District Commissioner of the Songea District to whom
he complained about the treatment meted to him. The District
Commissioner for Songea District advised him to appeal to the. Regional
level as he ( the District Commissioner) was not a final authority an that
matter. PWL stator that in conformity with this advice, he appealed to the
Appeals committed that dealt with trading licences His appeal was
rejected no reasons was given for the rejection. All that was stated in the
rejection letter Ref. No. TO/SO/A.1/10 dated 13th June, 1997 and
produced in court, admitted and mixed as exhibit P.1 was

Rufaa yako kutaka upewe leseni ya biashara kwa kipindi cha 1987/88
imekataliwa

Following receipt of this letter (exhibit P.1) P.W.1 received a letter from the
District Commissioner of Songea Ref. No. D.0/T.30/5/Vol/IV/55 dated

414
 17th June 1987 requiring him to leave Songea by or on 30th June 1987. As
all the six application in the application covering Songea District received
such a letter and as this court will have to make a decision whether or not
this type if letter was Removal Order talked of in Cap. 104 this latter
which was produced in court admitted and marked exhibit P.2 is here-
under reproduced in full

OFISI YA WAZIRA MKUU NA MAKAMU WA KWANZA WA RAIS

MKOA WA RUVUMA OFISI YA MKUU

WA WILAYA
S.L.P. 1

SONGEA,
Kumb.Na.DAO/T.30/30/5/Vol.VI/53 17/6/1987
Mohamed A. Athumani,
S.L.P 17,
SONGEA

Yah: RUFAA YA KUTOPEWA LESENI KIPINDI

CH: 1987/88
Tafadhali husika na somo hilo hapo juu.

2.KutoR na kukataliwa rufaa yako ya kutakda upewe leseni ya biashara kwa

kipindi cha 1987/88 nakutaka uwe umemaliza shughuli zako zote zinazohusu
biashare yako ifikapo tarehe 30/6/87.
3. Mnamo tarehe 1/7/87 kama shughuli zako za biashara utakuwa bado
unaziandeleza itabide ulazimishwe kuzifunga na hutua za kisheria itabidi
zichukuliwe dhidi yako.
4. Nimategemeo yangu kwamba kwa kuwa utakuwa huna shughuli yoyote ya
halali yakukupa riziki yako utakuwa umecondoka kurudi nyumbani kwenu

415
 kwa hiari yako mwenyewe Endapo utashindwa kufanya hivyo itabidi
uondolewe kwa nguvu.
(M.I RRRR.)
MKUU WA RRR.
SONGEA
Makala Mkuu wa Mkoa
S.L.P
SONGEA

Mkuu wa Polisi (W)

Songea

Mkurugenzi wa Mji
Songea

Mohamed Abdi Mohamed Hukufanya rufaa lakini na wewe pia

unahusika
Old Dilux Hotel Na kifungu cha 2,3, na 4 cha barua hii
Songea

Elimi Hotel,
Ruvuma Hotel,
Songea.

Afisa Biashara (M)

Songea

Kamanda wa Polisi (M)

Songea.

Afisa Usalama wa Taifa (W)

416
 Songea

Mohamed Ally Athumani now 54 years old and has now been in Songea for 17
years was in the above mentioned letter told to go home where? The letter did
not indicated. He is marred and has sex children. He himself when under cress
examination had stated that he was born at Mafere, Mudeza |District Tanga,
Region. This presumably was the home that exhibit P.2 envisaged. He had
however never been prosecuted – he had ho criminal record and he had never
been warned by any authority of having infringed any business regulation during
his long business carrier

Adam Hussain (PW2) like PW1 a Tanzania and Hotelier was refused a business
licene for the year 1987,88 on the expiry of his business licence on 30th April,
1987 Unlike PW1 he was a Somali by tribe and has stated living in Songea Town
in December 1985 He ran in accordance with the law a hotel called Sovi Hotel
situated at Mfaranyaki he has never been prosecuted or convicted of my offence.
He filled an opposition in March, 1987 for the renewal of his business licence
that expired in April 1987 and sent it to the Songea Town Council. No licence
was issued to him despite his plendis to the District Commissioner Songea
District and other RR. He was told that he being a R. No business licnce was
going to be issued to him and that if hi had any question on that matter he had
better fo and see the District Commissioner of Songea District. He went to see
the Distict Commissioner as he had been directed and the D.C retreated the
reply that he P.W.2 had received earlier on from the Trade Officer Town Council
Songea. He wrote a letter to the Distinct Commissioner produced in this court
and marked exhibit P.5 requesting that he be grated a business licence He had
already entered into long term commitments which had involved heavy
expenditure. I quote this letter in full for reason that would came apparent in due
cause. The letter reads:-

417
 Adam Hussein
S.L.P 85 Tel 470
Songea
11/5/87

Mkuu wa Wilaya
S.L.P 1,
SONGEA

YAH MALALAMIKO (MAULIZO)JUU YA LESENI

YA BIASHARA YA HOTEL YA MWAKA 1987

Husika na kichwa cha habari hapo juu.

Napenda kuleta barua hii kwako kwa kuomba nifikiriwe kuhusu leseni ya
Biashara ya Hotel. Nakumbuka tarehe 8/5/87 nilifika kwakp kuangalia fomu
yangu ya Biashara ulinijibu kuwa leseni za WASOMALI zimekatiwa sababu ya
kukataliwa hukueleza .
Pamoja na jubu hili mimi binafsi naomba uelewa shida au Ghalamu ambazo
nimeisha zipata mpaka sasa Nyumba ninayofanyia biashare napanga kwa kulipa
kwa mwaka mzima ambayo ni Shs 72,000/= Nimesha lipa. Kun matengenezo ya
nyumba kila msimu wa leseni nimeshafany si chini ya Shs 20,000/= mbali ya
vyakula nilivyp nilivy kuwa novyo ndani ys too ambavyo n shs 150,000/= Sio
hiyo tu niliomba leseni mpya kwa nyumba nyingene ambayo niliaomba kufungua
DUKA NA GUEST kodi ya nyumba nimeshalipa Shs. 84,000/= kwa mwaka
mzima na bado inadai marekebisho kama vile choo za KUVUTA na mambo
mengine madogo madogo

Katika tatizo hili nomba Serikali inifikirie nitarudisha namna gani ghalama zote
hizi.

Ninaamini kuwa sijafanya kosa kinyume cha Serikali hivyo ombi langu utalifikiria
vema

Wako katika kujenga taifa

ADAM HUSSAIN

Adam Hussain PW2 received no answer to his compelling as well as sympathy

erovoking letter quoted above Undaunted he wrote a letter to the appeals

Committee chairman asking that he be granted a business licence To this letter

he received a reply but in the negative. It was identical to the one that Mohamd

418
Ally Athumani PW1 had received. He contacted the District Commissioner of

Songea District as advised in the last paragraph of this letter which was

produced in court and marked exhibit P.4 he was given a letter identical to the

one that had been given to Mohamed Ally Athumani and which had been marked

as exhibit P.2 quoted in full above This letter was produced admitted and marked

as exhibit P.5 The witness PW2 further testified that he had wished to be a

farmer and he had applied for 2,000 acres of land and that he had received no

reply to his application addressed to the District commissioner of Songea and

dated 7th April, 1987 He had followed up this application with enquires but he had

always been told that the sitting that dealt with applications for land had not

taken place. He produced his application letter for 2,000 acres of land as an

exhibit which was admitted and marked exhibit P.6. From his temporary travel

document. No. 5510 which was produced for identification purposes and

marked ID.2 one finds that the applicant was born at Dodoma on the 29th

January,1989.

Athumani Shali PW3 by Mgunya tribe is a Tanzanian who has been living in

Mfaranyake area Songea Town form 1981 He has a wife and five children and

runs a retail shop. He too stated that his business lecence produced in court for

identification purposes and marked ID.5 expired on 30/4/87 and to beat the

expiry date had applied for its renewal in March 1987 The business licence was

not issued to him on account of his having been a Mgunya by tribe. He too had

been informed at the Town Council that no business licinces were going to be

419
issued to Wagunya and Wasomali His appeal against rejection of his business

licence applications was rejected. Like PW2 and PW2 he had received an

identical reply as that received by PW1 and PW2 communicating to him the

rejection of his appeal. This was produced in court and marked Exh.P.8 In

conformity with the advice to see the District Commissioner of Songea that was

given in the last paragraph of exhibit P.* Athumani Shali PW3 went to see the

District Commissioner of Songea District. The District Commissioner of Songea

District issued him a letter which was produced and marked Exh. P.9 it was

identical to the one that had been given o Mohamed Ally Athumani Exh. P.2 and

to Adam Hissein Exh.P.4 He was required to be out of Songea District on or by

30th June 1987. under crossw examination it became apparent the PW5 was

born at Tanga Town Makorora area and has never been charged let alone

convicted of any offence and has en acres of land that he has been terming from

1981. He has several children some of whom wee of school going age – some

are in class seven and others are in class four. He fully engages himself in

developmental work and other party activities like others, he was not told which

his home was in this Republic. He was left to figure that out himself but

nonetheless left with very little time to do it before setting to a new start his

Songa home uprooted H have been tempted to ask myself an this in view of

these removal orders not an academic question where is home for p. Tanzanian

that has chosen to live in Tanzania at a place other than his birth place

420
Home is cases of ones in search of greener pastures? For those Chaggas and

others in R. Morogoro Rukwa, Coast, D’Salaam and other regions is ti one’s

birth place say Moshe or the chosen new place which could support ones living

say Kimara in Dar es salaam Cap,104 does not provide an answer. It Cap.104

was passed in 1944 by the Colonial Government home them must have been

ones tribal area irrespective of where one was born it served the Colonial

Administration purpose – falre up tribal feelings and associations. What now?

We have set to wield a Nation.

Mohamed Ally Ahmed PW4 like others a Tanzanian and like PW2 Adam Hussein

a Somali by tribe was a Hotelier running a hotel situated along Uhuru Street

Songea and called Shamsin Hotel. He has been in Songea from 1982 he was

born at in December 1950 as evidenced by his Passport N. 132463 issued at

Dodoma on the 12th November 1981 and produced in court for identification

porpoises and asrked I.6 He lives in Songea with his family and young brothers

They are five in all His business licesc expired in April1987 and his application

for its renewal was rejected on the R that he was a Msomali/ The Trade officer at

Town council Songea had informed him that no business lecence was going to

be issued to Wasomali and Wagunya. He was told to see the District

Commissioner of Songea District which he duly did. His appeals to the Appeal

committee against the decision of the Town council rejection his application for

issuance to him of a business licence for the year 1987/88 was also rejected. No

reasons were given A letter from the Appeal commette rejecting his applications

in identical terms as that addressed to Mohamed Ally Athuman p.W.a which had

421
been produced and marked exhibit P.1 and to Adam Hussain V2 which had been

producer and marked as Exb.3 and Athumani Shali Kombo PW3 which was

producer and marked exh.P.8 was addressed to charmed Ally

It was produced in court and marked as Exh.P.10 Mohamed Ally Athumani PW4

went to see the District court of Songea District and was issued with a letter

productR.. as Exhj. P.11 It was identical to those given to the previous three

witness as which required the said Mohamed Ally And to be out Songea District

by or on 30th June 1987 if he wanted to unpleasantness Like other witnesses,

Mohamed Ally Ahmed was not told where to He decided to go in search of

justice.

Mohamed Omari P 5 a Tanzania from his temporary travel document No. 1391

was born at village the 3rd April 1959 is a Songea had been living at the

Mautombo songea Rural running a hotel and guest house. The business

following the qunfication of his business licences by th Regional Crims officer

called Ally Makame. The Regional Crimes officer showed Mohamed Omari PW2

no written authority for the confistication of the business lices did he give him any

reason for the mentioned confiscation of this business licence All the Regional

Crime officer did tell Mohamed omare was that he Mohamed Omare if he had

wanted to know anything more about the the matter should go and see the

Regional Police commander or the Regional Commissioner of Ruvuma Region

He want and separately saw these officers but was given no reason by either

justifying the decision of the Regional Crime officer he Mohamed Omare P.W.5

first went to see the Regional Police Commander who had told him that he know

422
nothing about the subject matter as to the Regional Police commander Ruvuma

Region was at the time of the indent at Tunduru did however promise to

investigate the matter. Omare them went to see the Regional Commissioner

who also told him that he knew nothing about the case as he been away at

Dodoma for one month Dissatisfied by these replies he went to see the Trade

officer Songea Rual who told him PW5 to address a letter to the Regional Crimes

officer the Regional Trade officer and the District commissioner Songea District

complaining about the act of the Regional crims officer. PW2 stated that he did

this but received no reply to his letter. He decide to go and see his advocate Mr.

Mwingira of Mwingira and Advocated Company . He instructed him to institute a

legal action against the Regional of crimes officer. He was however given no time

by the authorities to see this question grouch the courts he was repatriated out

of Songea District under Police escort. He produced a removal order marked

Exh. 12 which appears to have been handed to him on the 1st April 1987 The

document is of interest respite Mohamed Omare’s tremetin by the authorities

reminiscent of these RRRR to natives coming colonial period the reason given

for the removal of the said Mohamed Omari in view of the facts know to the

District Commissioner lack truth and show the cocause nature other people lives

were being taken Anything seemed top go Para (d) fo this document (exhibit I.12)

provided

(Mohamed Omari) is a person having no seal within the township and his distinct

of oring of last place of order my residence is within the Territory but outside

423
No time was give to Moamed omari to disposed of his things and no reasons was

given for the repatriation apart from those cetsiled in exhibit KP.12 According to

PW.5 Mohamed Omari the Removal order was handed to him on the 6th May

1987 The fare was by the Distict authorities. In getting to Dar es Salaam P.C

Janke him be the Station and eventually to the District Commissioner of Ilala

District who had wanted to know from the Police Constable reasons for the

repatriation of the said Mohamed Omari According to the testimony of

Mohamed Omar B/C Manke had nothing to tell the Distric Commissioner of

Ilala District apart from stating that he (P. C. J ) had been acting on instruction

Mohamed Omari then told the District Commissioner of Ilala District his side of

the story complaining that he had been mishandled and injustice done to him. He

produced his documents The Distict Tparty Secretary. Aletter Ref. No, A.10/3/92

dated 21st May 1987 was addrewssed to the District commissioner of Songea. In

the it was stated that PW 5 was living with his relatives at Shauri Moyo aria Ilala

and that he had been permitted by what authority it is not specified in the letter to

return to Songea to take his assets as he Mohamed Omari had satisfied them

that the District Commissioner of Songea had not permitted him to take anything

that was his at the time of his removal. The District commissioner of Songea was

requested to offer to Mohamed Omare all the necessary assistance to enable

him to successfully complete his mission

He Hamed Omari testified that he case to songea was the District Commissioner

of Songea District and was permitted to stay in songea up to 30/6/87 A letter to

that effedt Ref. No. DAO/C/U.10/1/36 dated 12/6/87 and signed by the District

424
commissioner of Songea District was issued to him. This letter was copied to the

Regional Police Commander oc. D. Songea District and the write of the letter

from the Ilala District Commissioner’s Office who was also informed that the said

Mohamed Omari would never be permitted to return to Songea after that

extension. This letter, which was produced in court and marked as Exh. P.15 was

in the same vein as those give to Mohamed Ally Athumani PW 1 and marked

exh. P. 2 Adam Hussin PW 2 and marked as P 5 Athumani Shali PW3 and

marked as exh.P 9 and Mohamed Ally Athumani PW4 and marked as exh. P 11,

Mohamed Omari maintained that he had obtained his business licences

produced for identification purposes and marked as ID. 9 lawfully. He in addition

to running a hotel and a guest house also had a farm and kept some goats.

Before his repatriation to D’Salaam he had in March, 1987 applied for a business

licence for the year 1987/88. His application had been rejected because he was

a Mosomali. He had been told by the Trade officer Songea Town Coucil that no

trading license were going to be issued to Wasonlai and Wagunya. Under cross

examination. Mohamed Omar maintained that he had not been involved in any

unlawful activities that he had never dealt in Government Trophies and further

that he had no friend or relative dealing in Government trophies legally or

otherwise.

Sharif Abdillahi PW 6 like other witnesses in this case was a Tanzania He was a

Somali that was born at Mpwapwa on the 20th March, 1954 he was a Hotelier

and has been in Songea from 1985. The hotel is being run in the name of Elme

Abdi. He had applied in March 1987 for renewal of his business licence that was

425
expiring on the 30th April 1987 His application was rejected and reason given for

the rejection was that the applicants was rejected and reson given for the

rejection was that the applicant was a Msomaji. It was confirmed to him that the

licence for the hotel situated in Songea town and called Ruvuma Hotel could not

be issued to him as it had been decided no Solima or Wagunya were going to

get business licences. A document similar to those received by others and which

had been quoted abover requiring him to leave Songea District by or on 30th

June, 1987 was addressed to Elme Abdi This document was produced in court

and was marked as exh P.17 Abdu Athumani PW7 s Tanzania and Mguny by

tribe stated that he had been living at Mojengo area in Tunduru Town. He runs a

grinding machine on behalf of his brother Mohamed Athumun PW 8 He also has

a shamba and cultivates maize. He is a son of PW1 Mohamed Ally Athumani .

He testified that in absence of his brother, Mohamed Athumani PW 8 he had

vain applied or a business licenc for the year 1987/88 for the running of the

grinding machine. The current business licence produced in court for the

identification purposed and marked ID.12 was expiring on 30/4/87 The renewal

of the business licence application was rejected on the basis that the application

was Mgunya. He too was told that he was not going to get a licenc as were going

to be issued to Somalis and Wanguny A removal order was issued to him

requiring him to be our of Tunduru within one month from the date of Mohamed

Omare and marked as exh. P. 12 gave no reasons apart from stating in its

paragraph 1 (a) Hatakiwe hapa Wilayani He was being repatriated to Tanga

Region This repatriation order produced and marked as exhibit P. 18 was similar

426
in all details to the one issued to Saidi Ally also Mguny by tribe and a Tanzanian

who had been conducting business of selling finsh in Tunduru and had been

living there for some years. The removalorder was produced and marked as exh.

P. 19 Saidi Ally was an uncle of Abdi Athumani PW 7 and Mohamed Athunam

PW 8 and a brother of Mohamed Ally Athumani PW 1 The last witness for the

application was Lali Athumani Pw ( he too was a Tanzania and Mganya by tribe.

He application for renewal of a business licence was rejected Hw had been

conducting this business of selling fish at Tunduru from 1971. He has been living

at Tunduru from that period i.e. 1971 with his wife and four children and an in –

law Renewal of his business licance produced in court for identification purpose

and marked ID.14 was rejected because he was a Mghunya by tribe. He was

also told that no licence were going to be issued to Somali and Wagunya. No

removal order had been issued to him because at the time of issuance of these

documents had had been out of Tunduru.

No Respondent appeared in Misc. Civil case No. 2 of 1987 Mr. Sengwaji

informed the court that the District commissioner of Tunduru District was

indisposed and therefore could not g=travel to Songea. The district Executive

Director of Tunduru District could not travel to Songea because of transport

problems/ As the consolidated Misc. Civil cased No. 2 and 3 1987 involved the

same issues Mr. Sengwaji submitted that the case could proceed. In the Misc.

Civil Case No 3 of 1987 two witnesses appeared namely: The district

Commissioner for Songea District and the town Director, Town council Songea.

427
The District Commissioner Songea District testified that he had written to the

Town Director of Songa town council directing him not to issue business licences

to Somalis and Wagunya. He testified that he had given the directive in

compliance with the directive that he had in turn receive from the Regional

Commissioner Ruvuma. In his testimony he stated that this decision had been

taken because the two tribes namely Wasomali and Wagunya were suspected of

being involved in illegal trade in Government trophies . it was felt that as it was

difficult to detect and capture the culprits said to be belonging to the Wasoli. And

Wagunya tribes because these have been using the local populace in the

conduct of the illegal trading it was flit better to first refuse business licince to the

Waosmali and Wagunya thereby putting them out of their businesses and then to

apply Cap. 104 for their removal from the District. He dismissed suggestions by

the defence that some of the applicatisn were involved in agriculture. He was firm

that Wasomali and Wagunya were essentially tradesmen. No inquiries were

however hade by him regarding his subject. He admitted lack of intimate

knowledge of the activities of the six applicants in the Songea applications other

than those that required business licinces. He offered no rebutting evidence on

the evidence of some of these six that they were also involved in agriculture. He

dealt at length with the case of Mohamed Omare PW5 whose business liceuc

has been confiscated by the Regional Crimes (PW5) was taken at District level.

He testified that Mohamed Omari PW5 had obtained his business licences

contrary to the procedure required to be complied with by members of Ujamaa

villages. Business licenc applications for members of such villages had first to be

428
approved by village Governments. DW 1 testified that the minutes produce by

Mohamed Omari PW 5 to the District Executive Director Songea Rural had been

faked by the village chairman and the village Secretary. There had been no

village Government sitting to discuss this question. The district Commissioner

gave no eviden o involvement of Mohamed Omare PW 5 the alleged breached.

He however stated that it had bee on account of this that he had written to the

District Executive Director Songea Rural requiring the said officer to cancel the

trade licen of Mohamed omare Pw 5 at once. He also directed the said officer to

write to the minister of commerce and Industries to cancel Mohamed Omari

business licence. On what law the District Commissioner had acted was not

stated. The Business licencing Act No. 25 of 1972 provides no such powers to

the District Commissioner however. This action was therefore without

jurisdiction.

Selvester Tarimo DW 2. Town Director Songea Town testified that it was on the

strength of the communication addressed to him by the District Commissioner

Songea District that no trade licenc be issued to Somalia and Wagunya that the

application for renewal for business licences by the six applicants in Misc. Civil

case No 3 of 1987 were rejected. Dw2 testified that if it were not to issued

business licences to Somalis and Wagunya the six application would have been

issued with business licance for the year 1987/88 Let me now examine the

evidence before me. Before doing so however I would wish on the out set to

clarify certain matters which I hold me of importance in the determination of this

429
case. In entertaining these applications by ten application this court has usurped

me powers. This court has had powers to entertain such application for ages see,

Northern Tanzania Farmers Cooperative Socety v. W. H Shellukino (1987)No. 36

This court creature of statue in entertaining such applications performs for the

benefit of the people. As was stated by Brett, LL,J, R.V Local Government Board

(Board 1882)to QBD 306 at 321 that:

Wherever the legislature entrusts to any/bed of persons other than its superior

courts the powers of imposing an obligation upon individuals the courts ought to

exercise as widely as they can the power of controlling those bodiesR

If they attempted to-exceed their statutory powers it is one of high courts duties

to exercise supervisory powers on bodies other than a superior court that are

entrusted by parliament to take decision that affect the nights of the people top

ensure that these bodies perform with the limits set to them by the Parliament

This ensures consistent of location of the country entrenched principles of

freedom and justices to the Government ageists the Parliaments decision

encores avoidance of the this Republic duties being executive on people whom

where people are reduced to numbers w. but any personal regard to hardship of

the very people said by the officials to be serving These supervisory powers

ensures existence of tangible values like justice, truth consistory within which

are embedded elements such as compassion and dedication. He grant by the

Parliament of these supervisory powers ensured expediency or might is right

430
forces that are always inconsistent such application the High Court does itself to

embarrass or belittle the Government or its Agencies in order for itself to look

more important in the eyes of the people. Ted the supervisor owners have been

grated to the High Court by the government and common sense dictates that

Government would not have put itself in such untenable position Secondly their

ten applicant in resorting to this court have done nothing wrong or unconstitional

at all. For the applicants to have come to this court in search of justice have

demonstrated their belief in the even handed administration of justice in this

Republic. Every citizen has a right when hi feels that the Government does not

faction within the ambit limits dictated by justice on that it the Governmen6 had

set on itself to seek redress in courts of law. A move by citizens such these ten

applicants have taken in each they consider as their rights should not be taken

as intended to embarrassment the Government its Agencies. To them the

question is not academic; it involves the uprooting of their lives. They have a right

to know whether such actions are permitted by our law or whether bt this places

relative proximity to Sough Africa the Agencies of the Government here thought

they could take a leaf off the book of that evil administration. It is in the interest of

all people of good will reason, foresight, moderation and certainly the

Government that one of its institutions clothed with appropriate powers exists to

reassure the people that the Republic’s admirable objectives and their

execution are intact. Thirdly before me are a set of application or orders of

certiorari and Mandamus. The six application have filed for issuance of he orders

of certiorari and mandamus against the district Commissioner of Songea District

431
and the town council Songea and the four applicants have field for similarly

orders against the District Commissioner of Tunduru District and the District

Executive Director of Tunduru District. This set of application deal with the same

issues/. I therefore intend to handle the consolidated application on issues rather

than deal with each civil application separately to avoid repetitions i.e. I will first

deal with application for the orders of certiorari and then finish with application

for ardor of mandamus. The applicants evidence is in the main undisputed by the

Respondents. The applicants in the order they appeared before me have all

shown that they were Tanzanians and that they have been residents of Songea

ad Tunduru Districts for considerable period on times conduction lawful

businesses, that had been properly licenced by licincing Authorities. As the

evidence by the applicants has not in any case been challenged by the

Respondents this court finds that what these applicants have stated is the Truth

I have above commented on the confistitication of the business licence of

Mohamed Omare (PW 5) by the Regional Crimes officer. This act was unlawful

as it had been done in contravention of the law and clearly based on very

superficial evidence. Except in the case of Mohamed Omare PW 5 whose

business licene for the hotel and guest house at Mantumbo village Songea had

been confiscated by the Regional Crimes Officer even before its expiry all the

remaining applicants had had their business licences for the running of their

respective businesses detailed above up to the time they expired on 30/4/87 All

the applicants had duly applied in March 1987 for the renewal of their business

licences and all their applications were rejected not on the lines permissible

432
under the Business licincing Act No. 25 of 1973 but on tribal and racial grounds.

All the applicants have had established homes with some to them owning their

own homes. Many of thewe3 as pointed above have families and children of

school going ate. Like any of us irrespective of position in life are entitled to

expect peaceful enjoyment of live that this constitution of the Republic wants. All

of these3 have nbot been convicted of any offence. They are law abiding

citizens most of whom have stated are active party members. Like all law abiding

citizens they expect amongst many rights, enjoyment of the right to work and not

for this right to be frustrated all the applicants do not criginate from this part of the

Republic, obout half of them could customarily be tied to Tanga Region while

others to Shinyanga, Dodoma and Kilimanjaro Regions.

The District Commissioner of Songea District had stated that he was not the

originator of the decision not to have business licences issued to the applicants

on the basis of race or tribe he had been told by the Regional Administration of

Ruvuma Region to ensure that Somalis and Wagunya were not issued with

business licences. He nonetheless ought to support the dicision and as it

appears to this court merely on suspicion that the people who have brought

about increase in lawful dealing in Government trophies were Somalis and

Wagunga he produced no evidence on this stand let me first group and latter

touch on the applicants individually. All that the District commissioner of

Songea District said to support the allegations that Somalis and Wagunya were

involved in unlawful trade of elephant tusks and rhinoceros horns was what (the

D.C) called a great increase in the numbers o these offences during the years

433
1985, 1986 and 1987 a said to have coincided with the increase in this paret of

the Republic of the wagunya and Wasomali. The District commissioner

produced no statistics either in terms of the increase of the mentioned

offecences in thisa part of the Republic measured against other parts of this

Republic where such offences could occur nor did he produce numbers or

statistics to show the suggested or stated influx into Songes of the Wagunya

and Wasomali. Not that provision of these mummers would have been of much

significance in connecting the Wasomali and wagunya to the alleged increase

in the type of the crime the District Commissioner talked about but it would

have provided a been The fact that even this important tool in making decisions

was not existing goes to show the superficial attention given by the Regional

Adminstration to this grave and sensitive problem. Increase in dealing in

Government trophies that the District commossiner of Songea District has

testified to could be explained by many other factors apart from the coming of

the Wagunya and Wasomali in his District even if their influx were proved Public

awareness of the crime leading to the rendering of timely assistance by giving

tips to the police applus or pay off for the party and the Government mobilization

drives in this direction efficient functioning of the Anti Poaching unit and police

force to more detection of crimes of that nature, expansion of villages into the

side to the Rural part of the Republic enabling easy detection as Government at

Party functionaries get nearer of the are the area where such crimes are

ordinarily prevalent more explanations could be found their tab the said influx of

Somalis and Wagunya for the increase in the crimes. Before me only ten

434
applicants these could definitely not be said to have been behind increase in

illegal dealings Government trophies. The number is meager and the

Administration could easily have come up with more tangible evidence on such a

small group the increase cannot be tied to this group[ either Mohamed Ally

Athumani Pw1 had been living in Songea from 1970 he cannot be tied to an

increase that is said to have shot up from 1985. Athumani Shami PW 3 has been

living in Songea Town from 1981 Mohamed Ally Abmed PW 4 has been living in

Songea from 1982 Mohamed Omari PW 5 has been living in Mamtumbeo from

June 1986 well after the upward trend had and if one were to compare the

alleged increase in terms of sea waves one would pay that he had come to this

part of the Republic at the crest of the waves Abdi Athumani Pw7 has lived in

Tunduru from 1980 Mohamed Athumani has lived in Tunduru from 1971 and

Lali Athumani has lived in Tundure from 1971 Further all the applicants have

conducting lawful businesses and are without any criminal record.

This court accepts the great temptations for the people to look for scape goats for

misdeed or catastrophes that befall societies. Annals of history show that

scape goats are usually from a group that is easily identifiable and relatively

weaker in comparison to the accusing forces. History is full of people who have

been said without much proof to be lazy, unintelligent, criminals, prostitutes

swindlers etc, the list is long This stronger forces for inability to cure the defects

or in their respective societies have always looked for excuses, but this

discovery of scape does not eliminate problems. They continue to exist up to the

435
stage where one find people with vision clear thinking foresight and imaginative

plans to put in action . the houning of Wasomali and Wagunya are not known

Let us now examine whether the removal orders by the District Commissioner of

Songea District to the Sic application issued by the District commissioner of

Tunduur District to the first to application were issued in conformity with the law

of this counter. Township (Removal of Undesirable perous) Ordinance Cap. 104

provides fore the removed of undesirable persons from certain area

Action 3 (1) provides

Where the District Commissioner has resizable cause to believer that a person

belongs to one of the specified in subsection (3) of this section and that the

precinct of such person within any township or other area within his distinct to

which this ordinal e extends is by of he matters mentioned in subsection (2) of

this section undesirable in the public interest he may make an order (in this

ardencies to as a Removal order) requiring such person

• To leave the said township or other area not later than a date to be

specified in the order:

• To present to such place as may be Reginald in the order, either under

the escor a person to be specified in the order or independent and

• Thereafter the remind that said township or other area either during a

period to be specified in the order of until further order,

Application of S.3 (1) of Cap. 104 depend on two additional faction namely. That

the Distinct Commissioner must have reasonable cause to believe that the

436
person against who he intends issue removal order belongs to one or the

categories specified in section 3 (3) and further that the presence of such person

specified under section 3(3) within a Township or other are within the District

which this ordinal by reasons of any of the attends mentioned

Removal order may be made on any of the following ground that that is to say

That the person has been sentenced to a term of imprisonment (other then in

default)

In the case of Tunduru District Townships (Removal of undesirable persons)

Ordinance, Cap. 104 is not applicable in that part of the Republic and could

therefore not be called in aid the District Commissioner of Tundureu District But

even if this ordinance had been applicable in Tunduru District the application

against whom these removal orders were issued are not of the type against

whom Cap. 104 could be applied and for the same reasons that I have pointed

out in the cases of the six application in the Songes District case. Both the

District Commissioner of Songea and the District commissioner of Tunduru

District had therefore acted without jurisdiction. It was incumbent u[on these

officials to perform within jurisdiction for those4 who act beyond their jurisdiction

and their act affect interest or rights of other people as is in the cases under

consideration their actions cannot be allowed to stand. In the cases under

consideration they involve uprooting of innocent citizens from their established

places and businesses. These have settled homes with apparently flourishing

businesses and children of school going age. These orders by the District

437
Commissioners of songea district and Tunduru District qualify to be quashed by

issuance of orders of certiorari.

There was a question as to whether apart from the order issued to Mohamed

Omari PW 5 and Marked exh. P. 12 other documents namely exhibit P 2 issued

to Mohamed Ally Athumani PW 1 exhibit P.9 issued to because as already

pointed to above the District Commissioner of Songea District had no jurisdiction

at all to issue them/ likewise, the orders issued by the District Commissioner of

Tunduru District in respect of Abdi Athumani and Saidi Ally requiring them to

leave Tunduru District as undesirable persons on ro before 30th june 1987 are

hereby brought into this court and quashed because the said District

commissioner of Tundureu had no jurisdiction to issue them

The evidence clearly shows that rrejection of business licence applaction of

Mohamed Ally Athumani, Adam Hussein Athumani Shali Kombo Mohamed Ally

Ahmed Elmi Abdi and Mohamed Omari Ahmde by the Town Director Sognea

Town council on the strength of the communication to him the sadi town director

Songea town council by the District Commissioner Songea District i.e. that no

applicant for a business licence that was a Somali or Mgunya be granted a

business licence was clearly contrary to the provision of the Business Licenceing

Act No.. 25 of 1972 and without jurisdiction. The licencing authority had abandon

the criteria set to it by Parliament in preference for standards that were based on

race and tribe. I need not emphasize the fact that this Republic has consistently

and very l loudly and at times at great economic penalty to itself rejected taking

occasions on consideration of race or tribe in all its domestic and international

438
dealings. Expedient is not this Republic’s Policy. Not is hypocrisy. This Republic

consistently rejected practicing that which it condemns when done by other. As

the town Director Songea Town council in rejecting the business application of

the above six application has no jurisdiction at all his decision cannot be allowed

to stand. The decision are hereby brought to trhis court and quashed.

The Destrict Executive Directore of Tunduru District in rejectiong application by

Abdi Athamani Saidi Ally Mohamed Athumani as Lali Athumani had not also

complied with Business licincing Act No. 25 of 1972. Going by the evidence on

record which had not been sputed the business licence application had been

rejected for a tribal reasons. Action of this nature by the District Executive

Director Tunduru District were taken without jurisdiction. They cannot therefore

by left to stand. These orders are brought into this court and quashed

The six applicants in Misc. Civil case No. 3 of 1987 namely Mohamed Ally

Athumani, Adma Hussein, Athuman Shali Kombo Mohamed Ally ahmed, Elme

Abdi and Mohamed Omari Ahmed has also applied for orders of Mandamus

addressed to the Town Director of Songea Town Council compelling him to

consider the application by the six application for business licences according to

law. On the basis of the evidence before this court the pleas by the six

applicants are granted. The Town Director to the Songea Town council is

hereby compelled to consider the application by the six application for business

licence

According to law. The town Director is further compelled to finalize this exercise

in two weeks time starting today.

439
In Misc. Civil case No. 2 of 1987 the four applicants Abdi Athumani Saidi Ally,

Mohamed Athumani and Lali Athumani have also applied for an order of

mandamus addressed to District Executive Director to Tundureu District

compelling him to consider the applications by the four applicants for business

licences according to law. This prayer is granted. The District Executive Director

of Tunduru District is hereby compelled to consider to law. He is further

compelled to finalize this exercise withi8n a period of three weeks starting from

today.

This court further finds that an order of prohibition to prohibit the District

commissioner of Tunduru District from issuing Removal orders to the third and

fourth applications: Mohamed Athuman and Lali Athuman issue. Accordingly the

District commissioner Tunduru District is hereby directed not to issue Removal

orders to Mohamed Athuman and Lali Athumini

The Right to Clean and Satisfactory Environment

Festo Balegele and 794 others

Versus

Dar es Salaam City Council

This was an application by residents of kunduchi Mtongan for Orders of

Certiorari, prohibition Mandamus and costs thereto to quash the decision of the

Dea es Salaam City Council to dump the city’s waste and refuse, to prohibit the

respondent from continuing to carry out its decision; and to compel the

440
respondent to discharge its function properly by establishing an appropriate

refuse dumping site and us it.

Kunduchi Mtongani is within the area of jurisdiction of the City council, but it is

zoned in the city’s Master plan as a residential area. The Council began to dump

waste and refuse at this area effectively from September, 1991 after the High

Court’s order in Joseph D. Kessy and Others v. the City council of Dar es Salaam

not to dump refuse at Tabata. The dumped refuse and waste were burning

emitting much smoke covering wide area and offensive smell has attracted

swarms of flies.

For the applicant, it was argued that collection and disposal of refuse was one of

the city council’s Mandatory duties, but the law required that statutory duties to

be performed lawfully and that by dumping refuse at Kudunchi-Mtongani the

respondents were executing its duty unlawfully thus ultra vires. The

respondentsdid not consider the relevant factors in deciding to dump waste at

Mtongani the decision was also without plausible justification because the

dump8ng activity was posing a health hazard and nuisance to the residents and

thereby making life extremely unbearable and the decision was unreasonable

In reply, for the respondents it was submitted that in depositing refuse at

Kunduchi Mtongani they were performing a statutory duty lawfully, and the

activity was not ultra vire the Empowering Act.

441
The Court held that the respondent’s decision to disposing refuse and waste at

Kundichi Mtongani was ultra vireos that Local Government (Urban Authorities)

Act, 1982 54 Firstly, it was contrary to the City’s master plan and secondly it was

not a statutory duty of the respondent to create nuisance but to stop it Nor is it to

creates sources of danger to the residents’ health. And that it was not proper for

a public authority, or an individual to pollute and thereby endanger people’s lives.

To do so would be contrary to article 14 of the constitution which guarantees the

right to life and its protection by the society

Ruling
Rubama,J

The application by Festo Balegele and 794 others against the Dar es Salam City
Council made under section 2 (2) of the judicature and Application of Laws
Ordinance, 55 the law

52 High Court of Tanzanie at Dar es Salaam Miscellaneoue Civil Cause No. 90

of 1991 (Unrepoted)
High Court of Tanzania at Dar es Salaam. Civil case No, 299 of 1988
(Unreported)> act No. 8 of 1982
Chapter 453 of the Revised Laws of Tanzania Mainland.

Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance 56 as

amended by the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Ordinance(Amendment) Act, 1968 and section 95 of the Civil procedure code,
1966 is for the following orders:

8 and section 95 8 and sect 8 and section 95 of the Civil procedure code, 1966 is
for the following orders:

442
(i) an order of certiorari 8 and section 95 of the Civil procedure code, 1966 if for
the following orders:
(i) an order of certiorari to remove to the Hi8 and 8 and 8 and section 95 of 8
and se8 and section 95 of the Civil procedure code, 1966 if for the following
orders:
(i) an order 8 and section 95 of the Civil procedure code, 1966 is for 8 and
section 95 of the Civil procedure code 1966 is for the following

The application is supported by a thirty three (33) paragraphed affidavit sworn by

the said Festo Basegele and opposed by a twenty four (24) paragraphed counter
affidavit sworn by Aloysius Mujulizi Serunkuuma a solicitor in the employment of
the respondent. In the counter affidavit, the respondent also gave notice that at
the hearing of the application by Festo Balegele and 794 others, the respondent
was going to raise a preliminary objection on points of law. Paragraph 2 of the
counter affidavit detailed the nature of the preliminary objection on points of law
to be raised. This was duly raised on the hearing date. Both Mr. Kakoti and Mr.
Mujulizi argued the respondents case on the raised preliminary objection Mr.
Mwaikusa replied for the applicants Briefly the raised preliminary objection was to
the effect that the application before the court was misconceived and thus
qualified to be dismissed. I reserved ruling when I came to give it ti was to the
effect that the raised preliminary objection was without merit I dismissed and
undertook to give my reasons for that decision in the final order of the court.

In the matter of an Application for orders of Certiorari, prohibition and mandamus

by Abdi Athumani and 9 others v. the district commissioner of Tunduru District
and 3 others 57 this court (Rubama, J.) had addressed itself on the issue that
had been raised bt the respondent as preliminary point in the matter now before
the court. I still hold that finding valid and follow it in this application.

In the case of Abdi Athumani and 9 others (supra) the applicants had sought and
obtained orders of Ceriorari prohibition and mandamus. Some of them had been
refused trading licences by the appropriate licensing authorities not in
accordance with the Business Licensing Act, 1972 58 Eight of the applicants had
been saved with Removal orders irregulary issued under the township (Removal
of Undesirable Persons) ordinance. 59 Ruling on that application Abdi Athumani
and 9 others (supra) I had stated

In entertaining these applications be the tem applicants this court has usurped no
powers this court had had powers to entertain such application for ages see
Northern Tanzania Farmers Co-operative Society limitedv W.H Shellukingo
(preliminary objection) 60 this court a creature of stature in entertaining such
applications performs for the benefit of the people As was stated by Brett, L.J in
The Queen (on the prosecution of the penalty local Board) v. The Local
Government Board 61 that: wherever the legislature entrusts to any body of
persons other than its superior courts the power of imposing an obligation upon

443
individuals the courts ought to exercise as widely as they can the power of
controlling those bodies If they attempted to exceed their statutory powers. It is
one of High courts duty to exercise supervisory powers on bodies other that a
superior court that ate entrusted by parliament to take decision that affect the
rights of the people to ensure that these bodies perform within the limits set to
them by the parliament. This ensures consistent application of the country’s
entrenched principles of freedom and justice by the Government agencies. The
parliaments decision ensures avoidance of this Republics duties being executed
on peoples whims where people are reduced to numbers without any personal
regard to hardship of the very people said by the officials to be serving. These
supervisory powers ensure existence of tangible values like justice truth,
consistency within which are embedded elements such as compassion and
dedication. The grant by the parliament of these supervisory powers ensures that
expediency or might is right forces that are always inconsistent and without
permanency are eliminated in entertaining such application the High Court does
not set itself to embarrass or belittle the Government of its Agencies in order for
itself to look more important in the eyes of the people. As stated the supervisory
powers have been grated to the High Court by the Government and common
sense dictated that Government would not have put itself in such untenable
position 62

The following facts are not in dispute.

(i) that kunduchi Mtongani is within the area jurisdiction of the Dar es Salaam
city Council
(ii) that Kunduchi Mtongani is zoned in the respondents master plan as a
residential area
(iii) that the applicants reside at Kunduchi Mtongani
(iv) that the respondent has been dumping the city’s collected refuse and
waste at Kunduchi Mtongani and instead of at one of the five sites designated
in the City’s Master plan for dumping the collected city’s refuse and waste
effective September 1991 soon following this courts order in Civil Case
299/88 (Dar es Salaam) in which respondent was ordered not to dump refuse
at Tabata
(v) that the dumped refuse and waste at Kunduchi Mtongani is presently
burning emitting much smoke covering wide area
(vi) that the dumped refuse and waste emanated offensive smell and has
attracted swarms of flies. Mr. Mwaikusa correctly submitted that refuse
collection and its disposal was one of the respondents mandatory duties
under the Local Government (urban Authorities) Act, 1982 He further correctly
submitted hat the respondent was required by law to perform its statutory
duties lawfully. Mr mwaikusa submitted however that the respondent in
disposing the collected city\s refuse and waste at Kunduchi Mtongani was
ultra vireos the Act as the Dar es Sallsm City Council the respondent; (i) had
not taken into consideration the relevant factors in coming to its decision;
associated provincial picture Houses limted v. Waynesburg Corporation 64

444
Mr. Mwaikusa argued that the relevant factor that the respondent should have
considered in selecting Kunduchi Mtongani as the

61 [1882] 10 Q.B 309 (AC) at 321

62 AT pp. 22 and 23
63 Act No. 8 of 1982
64 [1948] 1 K.B 223

City’s collected refuse and waste dumping are were the general land
development plan of the area that Kunduch Mtonga was zoned a residential
area that Kunduchi mtongani was not within one of five sites zoned for
garbage disposal (ii) choice of the are was without plausible justification Mr.
Mwaikusa pointed out that it was one fo the duties of the respondent to
enforce as proved by section 36 to 38 of the Town and Country planning
Ordinance 65 land development plan. The Counsel submitted that the
respondent was dumping refuse at an area marked residential and where in
fact people are residing thereby posing a health hazard and nuisance to the
residents by this decision the Counsel went on to submit the place which is at
any rate too small for the requirements of the respondent has been as
attraction of swarms of flies and is offensively smelly thereby making life of
the residents extremely unbearable. To compound this state the refuse has
been put on fire emanating smoke. Mr. Mwaikusa concluded that Kunduchi
Mtongani as a refuse primitive. The place has been turned into a health
hazard and a nuisance to its residents.

The decision of the respondent, Mr. Mwaikusa went on to submit looked

objectively was devoid of any plausible justification that could have made3
any reasonable body of persons reach it; Bromley London Borough Council v
Greater London Council and Another 66 (iii) appeared to have reached its
decision of the choice of the area through outside dictation Mr. Mwaikusa
submitted that it appeared the respond was dictated to by the Central
government on the choice of Kunduch Mtohanga as the City refuse dumping
place. As the enabling Act does not permit the respondent to abdicate its
powers in favour of another body, Mr. Mwaikusa argued, the act of the
respondent was ultra vires the Act H. Lavender and Son Ltd. V minister of
Housing and Local Government 67 Mr. Mwaikusa further submitted that the
applicants residnts of Kunduchi Mtongani were aggrieved and thus with locus
standi to apply for the orders of certiorari and prohibition Regina v. Liverpool
Corporation Ex parte Liverpool Taxi Fleet Operators Association and Another
68 Mr. Mwaikusa lastly prayed for an order of mandamus by requiring the
respondent (i) stoppage of the nuisance it was causing (ii) compliance with
this courts order issued in the case of Joseph D. Kessy and Other v. The City
Council of Dar es Salaam69 (iii) compliance with the land development plan
by selecting one of the five sites designated for the City’s disposal of collected
re3fuse and waste as shown in the City’s master plan.

445
Mr. Kakoti the respondents solicitor submitted that the respondent in
disposing refuse at Kunduchi Mtongani is performing a statutory duty lawfully
in land filing the abandoned stone quarries at Kunuchi Mtongan the
respondent are reconditioning the land trough sanitary land filing. This action
was not ultra vires the Act. As the sought order of mandamus Mr. Kakoti
submitted that the applicants had not complied with the conditions precedent
for the issue of the Order Alfred Lakarr. My Town Director Arusha 70

On the submission by Mr. Mwaikusa that the respondent appeared to be

actin on dictation of the Central Government thereby making its action of
dumping garbage at Kunduchi Mtongani ultra vires the Act. Mr. Kakoti
submitted that it was the duty of the Treasury of the Republic to provide such
funds as were adequate for the provision of public health service. On the
order of prohibition, Mr. Mujulizi submitted that it was not the intention the
respondent to dispose refuse at Kunduchi indefinitely. The decision to
dispose refuse at the area was a temporary one whole the respondent was
looking for an alternative place for the duping refuse. Mr. Mujulizi prayed that
the court exercise its dissertational favor of the respondent who would
otherwise fail to perform its statutory duty of refuse collection and disposal.

I have above dealt with the issue of courts jurisdiction in entertaining

application for orders of certiorari, prohibition and mandamus’s. it is best that I
move to deal with the issue of the lacustandi of the applicants as both Mr.
Mwaikuswa and Mr. Kakoti had touched the subject in their submissions. It is
not disputed that the applicants are residents of Kunduchi Mtongani This
taken together with the several facts that I have outlined above as not
disputed make the applicants persons aggrieved by the decision of the
respondents. I accept the affidavit of Festo Balegele that the residents of
Kunduchi Mtongani working through its committee fo which the said Festo
Balegele was the secretary and through its Member of parliament had made
representations to the respondent among others to stop dumping the City’s
collected refuse and waste at Kunduchi Mtongani but to no avail. Their
representations were not taken seriously.

Taking into consideration the submission of Mr. Mwaikusa on its issue I find
that the applicants resort to this court was in order. As what this court had
said in Abdi Athumani and others v. The District Commissioner of Tunduru
District and 3 others (supra) appropriately covers the application in the
application under consideration I find it fitting to adopt it here

Applicants in resorting to this court have done nothing wrong or

unconstitutional at all. For the applicants to have come to this court in search
of justice have demonstrated their belief in the even handed administration of
justice in this Republic. Every citizen has a right when he feels that the
Government does not function within the ambit or limitws dictated by justice

446
that the Government has set on itself to seek redress in courts of law. A move
by citizens such as these applicants have taken in search of what they
consider as their right should not be taken as intended to embarrass the
Government or its Agencies its the interest of all people of good will, reason
foresight, moderation and certainly the4 Government that one of its
institutions clothed with appropriate powers exists to reassure the people that
the Republic’s admirable objectives and their executions are intact.

On consideration of the affidavit, counter affidavit and the very elaborate and
able submissions by three counsel, I am of the view that the respondent
decision of disposing the City’s refuse and waste at Kunduchi Mtongan was
ultra vires the Local Government (Urban Authorities) Act, 1982 for the
reasons submitted by Mr. Mwaikusa
Which I accept. Further the manner of disposal of the collected refuse and
waste terminates any possible claim by mr. Kakot that the respodnt are in the
process of reconditioning the disused stone quarries at Kunduch Mtongan
my collection refuse from all over the city to dump it at Kunduchi Mtongani
contrary to the City’s master plan that kunduchi Mtongani is by this master
plan not zoned as one of the five sites for refuse disposal but zoned
residential and that there are several people residing there to whom a
nuisance has been created. The place has been made intolerably smelly and
dirty with flies all over and the deposited refuse burning and emanating
smoke. It is a statutory duty of the City Council, the respondent to shop
nuisance and not to create it. The submission by Mr. Kakoti that the
respondent was reconditioning the land at Kunduchi Mtongani Stands no
close examination. What the respondent id going now is not sanitary land
filing as that process is understood but just refuse dumping. The dumped
refuse attracts flies and emits foul smell the dumped refuse which has been
set fire to the dumped refuse it is t after effects that is of concern here As to
Mr. Munulizi’s submission that the respondent intends to use Kunduchi
Mtongani dump temporarily to give itself time to look and locate another site,
I only have to state that the respondent has sites in its master plan for refuse
disposal, that question of unprepared ness does not arise. But even if the
master plan had not provided for the possible sits for refuse dumping I would
still not find merit in the submission of Mr. Mujulizi on the issue of being given
time to look for a dumping sit. Refuse collection and disposal as one of the
statutory duties of the respondent should have been given priority treatment
it deserved. Peoples health and enjoyment of life are partly dependent on
living on healthy surroundings. I would further reject Mr. Mujulizi’s submission
in this regard for the very reasons stated by Lugakingira, J, in Joseph D.
Kessy and others v. The council (supra):

I will say at once that I have never heard it anywhere for a public authority or
even and individual to go to court and confidently seek for permission to
pollute the environment and endanger peoples lives regardless of their
number. Such wondered appear to be peculiarly Tanzanian but I regret to

447
say that it is not give to any court to grant such a prayer. Article 14 of our
constitution provides that every person has a right to live and to protection of
his life by the society. It is therefore a contradiction in terms and denial of this
basic right deliberately to expose any bode life to danger or what is eminently
monstrous to enlist the assistance of the court in this infringement.

In view of my findings this court brings into court the decision of the
respondent of dumping refuse at Kunduchi Mtongan and quashed it This
court further prohibits the Dar es salaam City council from continuant to carry
out its decision of using Kunduchi Mtongani as a refuse dumping site. This
court lastly issues an order of mandamus and directs the Dar es Salaam
Council to discharge its function properly and in accordance with the law by
establishing an appropriate refuse dumping site and using it.

The respondent is to berar the cost of this application lastly I wish to highlight
two points that this court is not there concerned with the wisdom or indeed,
the fairness of the respondents decision of selection Kunduch Mtongani as
the City dump8ng palce of the collected refuse and waste. All I am concerned
with is the legality of that decision was it within the powers that the Republics
parliament has conferred by legislation to Dar es salaam city council
Secondly I wish to emphatically state that I have not come to the above
decision lightly., I near in mind that only on 9th September 1991 the
respondent was ordered by this court to stop desposal of the citys refuse at
Tabata Dump. I take judicial notice of the disorientation that order had caused
to the respondent. But I can do nothing in this regard than to express
understanding of the feeling and then to apply the law. I can do no better
than adopt the poetic and extremely illustrative language of makame J (as he
then was in the case of Republic v Agnes Doris Liund 73 to express my view
of how my hands are tied

This necessary finding causes me personal anguish but my powers and my

interpretation role are circumscribed by the law. I have to take the law as it is
not as I might personally wish it to be. H have my legal training and
professional ethics to be true to my oath of office to be faithful to and at the
end of the day my conscience to live woth. As William Shakespeare puts it so
does conscience make cowards of us all.

72 At p. 15 to 16 of the hand written ruling

73 [1980]TLR 38 at p. 44.

448
AT DODOMA
CIVIL CASE NO. 23 OF 1993
JAMES GHAGILO PLANTIFT
VERSU
ATTORNY GENERAL DEFENDANT

449
RULING

R
The power of the president of the united Republic of Tanzania to remove a
civil servant from service in public interest is being challenged in this case.
The question is does the president has the authority to remove someone
in the public service in public interest without disclosing what that public
interest is under s. 19 of the civil service act no. 16/1989 it i9s provided.

The president my remove a civil servant from the service of the Republic if
the considers it in the public interest to do so

The issue is as what is in public interest is the word of the president final
in other words in deciding as to whether the decision was in public
interest what test the apply a subjective test or an objective test? The
state attorney Mr. Nyabiri has argued that the test is subjective and of the
decision of the President cannot be questioned in court.

There is another question as to whether this court has jurisdiction to

inquire as to whether the preseidnt complied with the law under s. 23 (2)
(a) of the Civil service Act No. 16/1989 it is provided:

The question whether the president has validly performed any function
under this Act shall not be inquired into by or in any court.

Have the courts been rendered important by provision ousting the

jurisdiction of the courts these are the question that I have been invited to
answer in this case.

The plaintiff in this case is a seasoned civil servant one Mr. James Fauke
Gwagilo who until 15th May 1990 was a Regional Development Directed

450
 for Tabora Region . By a letter dated 29th December, 1990 be was
informed by the lineal (Establishment ) that

The president under S. 1913 of the Civil Service Act. No. 16/1989 and S.
8(f) of the Pension Ordinance Cap. 37 and Standing Order F. 35 has directed
that you are retired from the public service in public interest with effect from 15th
May, 1996. No reasons were disclosed as to what rendered the retirement to be
of interest to the public at large. However the letter state that the retired servant
would be paid all his pension due.

451
Now the said plaintiff has filed a suit for a declaration that his retirement in public
interest was wrongful. He prays to be declared as still a lawful employee of the
government. He claims Shs. 47,559,511/60 as damages for wrongful retirement
and his arrears of salary and other allowances that he was entitled to. He also
claims shs. 157,717,644/60 as special damages. The Government through the
State Attorno Mr. Nyabiri has raised a preliminary point to the effect that this
court has no jurisdiction to try this case. However the plaintiff through his
advocate Mr. Dominic Mbezi has contended that this court has the jurisdiction to
try the case.

First the State Attorney Mr. Nyabiri has argued that the President under Art. 36
(2) of the Constitution has the prerogative power to terminate of remove a civil
servant in the public service in public interest. He said that power is
supplemented by the Government Standing Order F.35 which states that a civil
servant holds his office at the pleasure of the President and so he can be
dismissed at will. Counsel for the plaintiff Mr. Mbexi has rightly pointed our that
the correct Standing Order is F.44 which states that a civil servant holds his
office at the pleasure of the President.

I will be quick to point out that the Standing Orders have no force of law. Those
standing orders have been by the provisions of the Civil Service Act. No. 16/1989
and the Constitution. The Standing Orders had validity only during the colonial
period when the Crown could dismiss a civil servant at will as he hold office at
the pleasure of the Crown. When Tanganyika became a Republic in 1962 the
prerogative power of the crown to dismiss a civil servant at will did not evolvo to
the President. Instead the President could only remove a civil servant not at will
but in public interest as per 20 (3) of the Civil Service Ordinance Cap. 509 of
1961. Therefore the prerogative to dismiss at will have therefore boon abrogated.
As Prof. Abraham Kiapi points out in his book ‘Civil Service Laws in East Africa’
(1974) East African Literature.

The power to dismiss can only be exercised if it is in the public interest. There is
a distinction between this and the power to dismiss at will exercisable by the
Crown in England of the President in Uganda. Whereas under the prerogative
this Crown nood not state whey an officer is being disclose and no cause nood
be shown for the discharge, under the Tanzania Act, the President must act if the
public interest so requires. There must exist some circumstance to enable the
President to form the opinion that the removal of an officer is in the public
interest.

In fact Art 36 (2) of our 1977 constitution which the State Attorney has cited
reinforces the view that the President has no power to dismiss the civil servant at
will, contrary to what the Standing Order provide. The Art. 36 (2) of the
Constitution clearly provides that the president has no power to terminate or
remove someone in public interest except in the accordance with the previsions

452
of the Constitution or the law of the land. New the only law available for
termination or removal in public interest is the Civil Service Act. No. 16/1989.

In the same breath it may be of interest to note the observation of Prof. . Mach
Islam in his book “Administration Law in Kenya” where at P. 10 states:

‘It would then follow that wrongful dismissal would be stationary, as a breach of
contract of employment. In Kenya neither the Constitution nor the regulation
provide for dismissed at pleasure by the President or the Public Service
Commission, only termination of appointment in the Public interest; this is very
defferent from dismissal. It would seen to follow therefore that there is a proper
contractual relation ship between the Kenya Government and the servants, one
in which, it is true, all the cards are stacked on one side, but that is not
uncommon those days end it represents a step forward from the colonial
position”.

I hope by now the State nterest Mr Mnairi has understand that the Government
Standing Orders do not represent the true state of the law. Mr Nabiri was also
quite from the think that the RRRRRRRRof Opoloto vrs. Ugander: (1969)
RRRRRRRRRrepresents the true position of the law. That case held R.the
president of Uganda had the power. Dismiss a civil servant at will. That is the
position in Uganda where the Constitution of Uganda stated that on the
attainment of Republican status, the progogative powers of the Grown was
vested in the President of Uganda. But in the 1977 Constitution of Tanzania we
have no such provision. The president of Tanzania has no prerogative power to
dismiss a civil servant at will but in terms of Art. 36 (2) of our Constitution he
must remove someone in the civil service in accordance with the law i.e. Service
Art No. 16.1989.

Now the next question is as to whether removal in public interest in equivalent to

termination at the will of the President.
The answer is an emphatic o. As Prof. Abraham Kiapi rightly points out in the
passage I have quoted above, whereas in the termination at will the Crow need
not show the cause for the discharge, under our law the President must state
what the interest of the public is being served. To quote his words: ‘There must
exist some circumstance to enable the President to form the opinion that the
removal of an officer is in public interest’. The President cannot and should not
just out of the blue, state that he was removing someone in public interest
without disclosing the interest of the public to be served. Otherwise he will be
accused of acting arbitrary and in a high-handed manner. In other words it will be
an abuse of power.

The duty to give reasons by the President when removing someone in the civil
service in public interest in reinforced by the provision of Art. 13 (6) (a) of our
Constitution. That provision states that every person whose rights and obligation
are being determined by a public officer, has the right of appeal or the right to

453
another remedy against that decision. By the phrase “another remedy’ there is
carsaged the right to judicial review. But there can be no judicial review if the
decision – maker has not given the reasons for his decision. As Lord Upjohn
observed in the case of Padfield Vrs Minister of Agriculture, Fisheries and Food:
(1968) A.C 997 at P. 1061

‘RRR.if he does not give any reason for his decision a court may be at liberty to
come to the conclusion that he had no good reason for reaching that conclusion’.

No dlubt the absence of reasons would render the constitutional right to appeal
or judicial review ineffective and illusory. Conserquently there is an implicit
obligation to give reasons in order to facilitate and render meanng the exercise of
the right of appeal and judicial review,. Our Constitution in art. 13 (6) (a) must
have intended the constitutional right of appeal and judicial review to be an
effective right and that the President by keeping silent cannot defeat the citizen’s
constitutional right. To hold otherwise would been that the President could in
almost every case, tender the right of aapeal and judicial review completely
nugatory-see the decision of the every council in the case of Minister of National
Revenue Vrs. Wright’s Canadian Repees Ltd ; 1947 A.CI 109 at P. 123. If
reasons are not given for a decision by the President that will render it virtually
impossible for the courts to perform their function of judicial review. If the basis
and reasons for the impugned decision are not articulated it is difficult for a
reviewing curt to adjudge the validity of the decision. The courts cannot exercise
their duty to revbiew unless they are advised of the considerations underlying the
action under review. That is the common law rule also all ober the
commonwealth – see in the Matter of Amir Hanza Umar and the Minister for local
Government:
Mwanza High Court. Misc. Civil Case No. 9/1989; and Osward Vrs. Public
service Board; 1985 L.R.C. (Cost.) 1041 by Court of Appeal of Now South Wales
(Australia).

Another reason for requiring disclosure of reasons for retiring in public interest, is
to ensure proper application of mind, to reduce the possibility of casualness and
capricisnous. In brief to maintain the integrity of the decision-making process.
The compulsions of disclosure of the public interest involved guarantees
consideration an introduces clarity. If reasons for an order are given there will be
less scope for arbitrary or partial exercise of powers and the order ex-facie will
indicate whether extraneous circumstances were taken into consideration by the
President in reaching his decision. That will be an effective restraint on abuse of
power.

In addition to imposing a healthy discipline on the decision-maker, public

confidence in the decision-making process is by the knowledge that acceptable
reasons have to be given by those who exercise administrative power. Besides
even if the decision is adverse, the person affected may be convinced by the
reasons to accept it as a reasonable and far exercise of discretionary power.

454
Another important consideration underlying the requirement to give reasons as to
why a servant is removed in public interest, is to satisfy a basic need for fair play.
A person affected by an ad verso order is untitled to know why the decision has
gone against his or her. What is required is not a detailed judgment but a brief
and concise statement of reasons for the adverse decision.

Moreover the obligation to give reasons, our President should note, also flows
from the citizen’s right to know and the right to have information which is an
essential component of the freedom of speech and expression guaranteed under
Art. 18 of our constitution. The Supreme Court of India in the case of S.P. Quota
Vrs. Union of India: (1982) A.I.A. (S.C.) 149 declared the right to know from the
guarantee of free speech in the Indian Constitution. I adopt that reasoning. Thus
the rights to have information obliges the President and other authorities to
disclose reasons for their decisions which affect citizen’s rights.

It can be said with confidence that since Art. 13 (6) (a) of our Constitution
provides for the right of appeal and right of judicial review from every decision
affecting citizen’s rights, then ipso fact it creates a third head of the principles of
natural justice ranking equally with audi alter am partum” (the right to be heard)
and remo judex in sa cause (the rule against bias). This third head is the right to
reasons from a decision-maker – that it is a denial of natural justice to refuse to
give reasons to the party who lost. Thus the third pillor Pf the principles of a
natural justice is here to stay just as day follows right. In order that it be at no
disadvantage in point of Latinity, this third arm of the principles of natural justice,
should be reformed to as nllum arbittrium sine rationibus.

So the State Attorney Mr. Nyabiri was wrong as was the President to equate
removal in public interest with termination at the President’s will or pleasure.
There is a vast difference between the two as adumbrated above.

Then Council for the Republic Mr. Nyabiri arged that it is for the president and not
the courts to determine what annunts to public interest. He said that the decision
of the President is subjective and that is whey the legislation in question states
that if the President considers it’ to be in public interest. So he said that the
words used puts in clearly that it is entirely in the discretion of the President to
determine whther a particular decision is in public interest or note. Iam quite
certain that the State Attornoy is wrong. In matters of this kind the test is an
objective test and not a subjective test. A similar expression was considered by
the Tanzania Court of Appeal in the case of Agro Industries ltd Vrs. Attonrney
General: Civil appeal No. 34/1990 (DSM) whose judgment was delivered on
23/4/1993. What was in issue was the provision in S.10 (2) of the Land
Ordinance Cap. 113 which provides:

‘Not with standing the provisions of sub-section (1) the president may revoke a
night of occupancy if, in his opinion, it is in the public interest so to do.,

455
In that case the revecation of right of occupancy was done by the President in
favour of a tespeasser ( a public corporation) as against a lawful owner (a private
company). The Tanzania Court of Appeal, as per Temadiani J.A. held that not
with standing the wording suggesting a subjective test yet the test to be applied
was an objective test. He said at pp. 14 – 15 of the typed judgment:

‘In the eyes of the law a trespasser is a trespasser to it a public enterprise or a

private enterprise or an individual. So the crucial question is what action is in the
public interest; to protect one with a legal title on to protect a trespasser? What is
at stake is the sancting of a legal right, and pertaining the right to property,
against the use of naked force. Which of the two should be protected in the
public interest? We are satisfied that public interest, as we have stated to
understand it, requires that legal property rights should be protected against
trespasser. In fact the President was misled. If the President was seized of the
full and correct situation he would not, in our opinion, have used his name to
protect a trespasser alleit a public enterprise. He would have been of the opinion
that, that was not in the public interest.

The important point to remember is that the Tanzania Court of Appeal applied an
objective test despite the wording of the statute in question. Ramadhani J.A.
emphasized that point at pp. 12’.13 by stating”
‘So what do we understand by an action being in the public interest? We think it
is so when looked at objectively and impartial eyes the motion is primarily and
not incidentally in the interest of the public which depending on the matter at
issue, may even comprise the individual or individuals concerned and it matter
not whether the public is aware of it or not’;.

So a matter which benefits an individual may be in public interest depending in

the circumstances, for example where the basic human rights of an individual are
at stake against an expressive majority or public.

The subjective formulation of discretionary powers is not a new phenomenon, as

of the executive attempt to restrict the scope of judical review. But the courts do
not consider themselves important in the face of those subjectively framed
discretionary power. In the case from England, the case of Sec. Of State for
Education and Shionco Vrs. Motropolitan Borough of Tamoside: (1976) 3 All 665
the statute stated that ‘ if the Minister satisfied’ he could decide something. The
issue was whether the matter he could be challenged. Lord Wilberforco said at
pp.681 – 682”

‘ This form of section is quite well know and at first sight might seem to exclude
judicial review on what is or has become a matter of pure judgment. But I do not
think that they go further than hat. If a judgment require, before it can be made,
the existence of some facts, then, although the evaluation of those facts is for the
Secretary of State alone, the court must enguiro whether those facts exist and

456
have been taken into account, whether judgment has been made on a proper
self-disrection as to these facts, whether the judgment has not been made on
other facts which ought not to have been taken into account. If those
requirements are not met, then the exercise of judgment however hona fide it
may be, becomes capable of challenge’.

And a similar view is taken by Lord Donning M.R. in the case of employment
Secretary Vrs. A.S.L.E.F (No. 2): 1972 2 Q B. 455 where the status said ‘if it
eppeared to the Minister’ he could do certain things. Lord Donning M.R. at pp.
492 – 3 said:

‘ If it appear to the Secretary of State, this is my opinion does not mean that the
Minister’s decision is public and challenge. The scope available to the challenger
depends very much on the subject matter with which the Minister is dealing . In
this case I would think that if the Minister does not act in good faith or if he acts
on extrancous considerations ought not to influence or if he plainly misdirects
himself in fact or in law, it may well be that a court would interfere. But when he
honestly takes a view of the facts or the law which could reasonably he
entertained, then his decision is noted be set side simply because thereafter
someone thinks that his view was wrong.’

The Privy Council as per Lord Salmon expressed their sentiments in more biting
language in the case of Attonrey – General of St. Christopher, Nevis and Anguilla
Vrs. Reynolds: 1981 A.C. 637.
Then it is said as p. 656:

‘The Lordships consider that it is impossible that a regulation RRRcould be

properly construed as conferring dictatorial powers on the Governor and that is
what the regulation would purport to do ‘ if the words’ if the Governor is satisfied’
man ‘if the Governnor thinks that etc.’ No doubt Hitle thought that the measures-
even the most alrocious measures – which he took were necessary and
justifiable, but no reasonable man could think any such thing.

The notion of a subjective or unfettered discretion is contrary to the Rule of Law.

All power has legal limits and the rule of law demands that the courts should be
able to axamine the exercise of discretionary power. If the discretion is not
subject to review by a court of law, then in our judgment, that discretion would be
in actual fact as arbitrary as if the provisions themselves do not restrict the
discretion to any purpose and to suggest otherwise would in our view be naïve.

Perhaps at this juncture I should remind all and sundry that the importance of the
role of the courts in trammeling abuse of executive and administrative power of
the government was fittingly put across by an eminent English judge Lord
Denning Mp.in the case of lake Airways Ltd. Vrs. Dept. of Trade. 1977 ) 2 All

J.R 182 Where he said at pp. 194 – 195.

457
‘ These courts have the authority and I would add the duty, in a proper case,
when called upon to enquire into the exercising of a discretionary power by a
Minister or his department. If it is found that this power has been exercised
improperly mistakenly so as to infringe unjustly on the legitimate rights and
interests of the subject, then these courts must so declare. They stand, as ever,
between the executive and the subject, as Lord Atkin said in famous passage,
alert to see that any exercise action is just fied in law. To which I would add: alert
to see that a discretionary power is not exceede or misused’.

So the learned State Attorney, is potently wrong to think that since the
discretionary powers of the President are subjectively worded, then the President
is beyond challenge. As amply demonstrated herein above, the president can be
challenged, so as to see that his power has been properly been exercised.

We now go to the ouster clauses and which sometime they are referred to as
privative clauses, which attempt to oust the jurisdiction of the courts. As stated
earlier, the ouster clause in here is contained in S. 23 (2) (a) of the Civil Service
Act. No. 16/1989. At the outset I would like to put down plainly that outor clauses
are paper tigers meant to scare the unway and the uninitiated in this realm of the
law. They are simply put there as scarecrows. As Hon. Mr. Justice John Laws
states in his article. ‘Is the High Court the Guardian of Fundamental
Constitutional Rights? In the Public law, Journal of Spring 1993 at .78:

‘Since the case of aninigninic Vrs. Foreign Compensation Commission: 1969 2

L.C. 147.
Clauses purporting to oast the jurisdiction of the courts have fallen into disuse.
To oust the courts power of review is necessarily to put some party clove the law
or at loast to make it and not the court the judy of what the law is, which is the
same thin. The courts will pressure against the conformant of such a power’.

The same view the expressed by Lord Diplock with characteristic in the case of
Re local ConRRRRRRRRRRRRRRRRR.
‘ It proceeds on the presumption that when parliament confers on an
administration traibunal or authority, as from a court of law, power to decide a
particular question defined by the Act, conferring the power, parliament intends to
confine that power to ansering the question as it has been so defined and if there
has been any doubt as to what that question is, this is a matter for courts of law
to resolve in fulfillment of their constitutional role as interpreters of the writer law
land exponders of the common law and rules of equity’.

To be sure, ouster clauses are ineffective to exclude the power of the High Court
to exercise its role as conferred on it by Art. 108 (2) of our Constitution over
inferior tribunals and public authorities. It is axiomatic that all statutory power
conferred on public officers including the president are subject to supervision by
the High Court exercing its classic and traditional function of judicial review not

458
withstanding the existence of an ouster clause. The Tanzania Court of Appeal
has expoused that view in a number of cases Inter alia: A.G. Vrs Lessinoi
Ndeinai & act ors (1980) T.L.R. 214

All Linus Vrs. Tanzania Harhours Authority: DSM Civil Appel No. 2/1983:
D.R.Kaijage Vrs. Esso Standard Tanzania Ltd., D.S.R. Civil Appeal No. 10/1982.
In the last case motionedMakame J.L observed that despite an ouster clause the
High Court could examine a decision to see if the rule of natural justice were
observed in arriving at the decision; which would in turn determine whether there
was a valid decssion or any decision at all. However I have to point out that the
position now is that not only can the decision of a public authority be challaged
for violating the prinsibples of natural justice but the (round had been expanded.
Lord Diplock in the case of C.C.3. Vrs. Minister for the Civil Service: 1984 3 All
B.N 935 T>L.
Identified four principles which can be used to challenge a decision of a public
authority, and that case was cited with approval by the Tanzania Court of Appeal
in thecase of Sanai Murumba Vrs. Lhoro Chacha: Mwanza Civil Appeal 11.
4/1990. These four principles are illegality (failure to follow the law); Procedural
impropriety (failure to observe the principles of natural justice and failure to act
with procedural fairness); irrationality (making a decision which is mutrage is in
its defiance of logic or of accepted standards that no reasonable person who had
applied his mind to it could have made such a decision): proportionality (that the
round employed by a decision-maker are no more than is reasonably necessary
to achieve his or her legitimate aims). The doctrine of proportionality has been
recognized by the Tanzania Court of Appel in the case, I f p..p Vrs Daudi Pete:
Crim. Appeal No. 28/1990” and Kukutia Ole Pumbun and anor Vrs. Attorney –
General: (Arusha) Civil Appeal No: 32 of 1992. The decision of the President ii
this particular case is open to challenged on all these four principles.

It may be argued in behalf of the President that since the President did not
disclose on which ground of public interest he removed the servant in the civil
service, then it is not possible to amount a challenge on his decision. That
argument is naïve. In the Agro Industries Ltd. Case (Supra) the President did not
disclose the public interest involved when he revoked somebody’s right of
occupancy, nevertheless the Tanzania Court of Appeal took into account the
history of the case which revealed that the revocation was made to assist a
public corporation to occupy the land in dispute in which it had trespassed into
and the court held that, that was not in public interest. In the case at hand
although the president has not disclosed as to what public interest would be
served in removing the civil service yet taking into account the history of the
case, the court at the main trial would be at liberty to consider on whether the
President was to correct to take into account in reaching his decision the fact that
the civil servant is question had an economic Sabato criminal case in which he
was acquitted and there were disciplinary proceedings against the said servant
but which ended in favour of the said servant. The trial court will have to consider

459
as to whether the President was right to take into account these extraneous
considerations in arriving at his decision.

The courts under the dectrino of separation of powers are charged with the task
of holding the Constitution and acting as on clock on othor branches of the
Government. In the two thomes above, I have attempted to explain how the
judiciary has rejected attempts by the Executive to overreach individual rights by
the legislation providing subjective distatonary powers and legislation ousting the
Jud diction of the courts. Court’s resistance to attemps on the part of the political
branches of the government to acquire uncontrolled power, is highly
commendable and shows that they are fitted to provide an effective check
against oppressive exercise of power by the Executive. Sir William Wade, in
‘Constitutional Fundamentals’. Hanlyn Lectures, and series, (1980) at pp. 83-84
has commended the court’s role by stating:

‘RRRto exempt a public authority from the jurisdiction of the courts of law is) to
that extent, to grant dictatorial power. It is no exaggeration therefore, to describe
this as an abuse of the power of Parliament, speaking constitutionally. This is the
justification, as I see it, for the strong, it might even be said rebellious stand
which the courts’ have made against allowing Acts of Parliament to create
pockets of uncontrolled power in violation of the rule of law. Parliament is unduly
addicted to this practice, giving too much weight to temporary convenience and
too little to constitutional principle. The laws delay, together with its uncertainty
and expense tempts government to take short cuts by elimination of the courts.
But if the courts are prevented from enforcing the law, the remedy becomes
worse than the disease.’

It is only hoped that the Executive will take this dialogue with magnanimity.
Uncontrolled power on the part of the Executive does not augur woll with a
domocratice government. It should be noted that courts are in a position of
independence and so they are often better placed than the President or any
other public authority to assess the weight of competing aspects of the public
interest.

Finally the State Attorney Mr. Nyabiri advocating for the President, argued that
the previsions of sections 5 and 7 of the pensions Ordinance, Cap. 371 bar the
plaintiff to present his claim in Court. Both those sections provide that ‘nc office
who has been retired in public interest has an absolute right to compensation for
past services and to other allowances he is otherwise entitled to’ The short
answer to those provisions is that they are unconstitutional and so void. They are
denying a person the right to renovation for work done contrary to Art. 23 (1) of
our Constitution. Art. 24 (2) providing for the right to respect is violable, is that
basic right state that no one may be deprived of his proparty without authority of
the law which shall set out conditions for fair and compensation. The law that is
improgned is not good law and is not saved by Art. 3. (2) of our Constituion
because it is arbitrary and without adequate safeguards against any such

460
arbitrary decision. And it offends the principle of proportionality it is not show that
it is necessary to achieve a legitimate Court of Appeal in the cases of Kukutia Ole
Pumbun Vrs. Attorney General: (Arusha) Civil Appeal No. 32/1992 and D.P.P.
Vrs. Daudi Pete: (DSM) Criminal Appeal No. 28/1994. It should be noted that
state agencies are required to direct all the policy and business towards the
preservation and compliance with the basic law of the land, that is the
constitution. And Art. 26 (1) of our Constitution directs that every person including
the President is obliged to comply with the constitution. It is therefore surprising
to note that the President has opted to obey the unconstitutional Pensions
Ordinance which affords the basic law officials that under section 5 (1) of the
Constitution consequential Provisions) Act. No. 16/1984 they have to regard all to
bring them into conformity with our Bill of rights Act. No. 15/1984. So all laws
passed before 1-3-1985 should not be taen at their face value, but should only be
obeyed if they don’t against the basic law of the land, the Constitution. The
president of the United Republic should be in fore-fron to disgard all the laws that
are in brown of the constitution, such as the pensions Ordinance. As apply
demonstrated above the Pensions Ordinance violates the right and the right to a
just remmoration for work done. Therefore under section 5 (1) of Act No. 16/1984
and Art. 64 (5) of our Constitution, I declare the Provisions of section 6 and 9 of
the Pensions Ordinance to be void. I hold that the identify is at liberty to present
his claims before this court.

IN THE HIGH COURT OF TANZANIA

AT ARUSHA
MISCELLINEOUS CIVIL APPLICATION NO. 11/92
(c/f Misc. Civil Appl. No. 264/91 11/0)
MOSES J. MWAKIBETE ESQRRRRRRR.APPLICANT
VERSUS
1. THE PRINCIPAL SECRETARY (ESTABLISHMENT
2. THE ATTORNELY GENERAL OF TANZANIA RRRR.RESPONDENTS

RULING
BEFORE HON. LUCKRRR.

461
In 1973 the applicant, Moses J. Mwakiboto, was appointed a Judge of the High

Court of Tanzania. In April, 1991 he became the subject of inquiry by a

commission of commonwealth judges appointed by the President under the

provisions of Art. 110 (6) (a) of the Constitution of the United Republic of

Tanzania, 1977. Pursuant to the provisions of Art. 110 (6) (b) the Commission

was required, after its inquiry, to report on its findings to the President and to

advise him whether the applicant ought to be removed from office.

On 4 June the applicant received from the President’s Office a letter,

F.3/33/310/390, dated 24 May and signed by the Principal Secretary

(Establishments), which informed him, inter alia, that the Promidount had,

pursuant to the provisions of Art. 110 (5), (6) and (7), “removed you from the

office of a judge by retiring you in the public interest with effect from 13 May,

1991. This letter is Annoxturo “A” to the applicant ‘s affidavit and will be so cited

in this ruling.

Upon receipt of Annexture “A”, the applicant wrote to various government officials

either questioning the constitutionality of his retirement in the pubic interest or

complaining against the administrative measures being taken in the

implementation of the retiromount. Of interest here are Annoxtures “B” addressed

to the Principal Secretary (Dotablishments) and “B2” addressed to the Chief

Justice. There is no evidence that these letters reached their addresses or, if

they did they were replied to. However, the applicant had also addressed letters

462
to the Principal Secretary to the President and to the President himself. And

these clicited replic.

Hence, by his letters SHC/C.230/32 dated 22 August (which I will cite as Exhibit

“(C”), and SHC/C. 230/32/F/22 dated 31 October (which is Annoxture “X” to the

applicant’s reply to the Attorney – General’s counter-affidavit), the Principal

Secretary to the Pesident informed the applicant that the President had directed

that he be informed that his removal from the office of a judge implied his

retirement from the public service. Annoxturo “X” is the nose significatas it alluled

to the Justice sandurn Commission and suggested that the President’s decision

was pursuant to the Commission’s advice.

The applicant still felt aggrieved. On 21 November he filed an application in this

court seeking leave to apply for the order certiorari to quash the decision

purporting to retire him in the public interest. That was Miscellaneous Civil

Application No.264 of 1991 which I heard and granted on 16 January, 992. I also

directed that subsequent pleadings be completed by the end of February with a

view to hearing the substantive application in the month of March. Acting on that

order, the applicant filed the present application on the same day. He was

contesting the constitutionality of the decision to retire him in the public interest

as communicated in Annoxturo “A” and praying that it be quashed.

463
On 21 February, and before the Attorney-general filed his counter-affidavit, the

Principal Secretary to the President wrote to the application a letter

SNS/C.230/32/F/48 informed him that the President has, on the advice of the

Justice Sandura Commission, remmod him from the office of a judge with effect

from 13 May, 1991. This letter is annoxture “DI” to the Attorney-general’s

counter=affidavit. Hence, in para. 5 of his counter affidavit, the Attorney-General

overred that the withdrawal of Annoxturo “A” and its substitution by Annoxture

“DI” had rendered the applicat’s application muntory. In reply to the counter –

affidavit te applicant assorted that Annoxture “A” was incapable of withdrawal,

since it had been acted upon by himself and by the Court, and that Annoxture

“DI” was inadmissible in evidence and had not been issued in good faith. In these

proceedings the applicant appeared in person while the Attorney-General was

represented by Mr. J.D. Mono, a Senior State Attornoy.

When we first not I noted that the applicant’s affidavit was not accompanied by a

statement as I was used to see in applications of this kind. The applicant

subsequently filed a Mr. Mono filed a counter – statement but the applicant

refused to accept a copy of the letter. He apparently did so because it gave

formal notice of a preliminary objection to the application basing on para.5 of the

Attorney-General’s counter-affidavit. Nevertheless, the applicant agreed to

continue with the hearing. At the commencement, therefore, Mr. Mono was

allowed to arque the preliminary objection to which the applicant ably and

exhaustively replied, and this ruling is on that subject.

464
I heard long and interesting arquments from both sides but at this juncture I will

do no Moro than summarize these arquments. Mr. Mono’s central arqument was

that Annexture “A” had been effectively withdrawn and substituted by Annoxture

“DI” and that this had the effect of removing cause of action. He also told the

court that in taking this step the Government had positively responded to the

applicant’s complaint and prayer by rectiying as he put it , “the mischief or

misdirection or non-direction or illegality” inherent in Annexture “A”. He submitted

that the applicant’s application had consequently become academic and should

be struck off. In reply the applicant contented that Annexturo “DI” was

inadmissible by virtu. Of the provisions of section 34C (3) of the evidence Act,

1967. Further, he submitted that by virtuo of the provisions of Section. 123 of the

same Act, the Government was stopped from abandoning Annoxture “A” and

denying the truth of it. Finally, he assorted that Annexture ‘DI” was not issued in

good faith, first, because his letter in annoxture “B2” “B!” and woro not replied to

and, secondly, because he was not furnished with the commission’s report to

enable him weighthis rights under the sastitution. The applicant referred to other

matters, some with a boaring on the note of the application, upon which I may be

complied to comment. I also prepose to address Mr. , Monos reaction to the

applicant’s arguments at the appropriate stage later.

465
It should be observed at the outs to that the Government concelors that

Annoxture “A” did not comply with the law. As already stated, Mr. Mono

characterized it as a “Mischief or misdirection or nondirection or illegality.”

At a later stage he further said, and I quote again, “There is no provision in the

Constitution which suggests that a judge can be retired in the public interest, so

the wording of Annoxturo “A” was an illegality correctable as and whon

discovered. “’The Government is to be commended for this concession; and, in

contemplation of this, it is not merely tempting but L think desirable to

demonstrate the extent to which the concession was justifiable, For this purpose

and for case of reference later I will first set out the contentious paragraph in

Annoxture “A”. it states;

Nimeagizwa nikuarifu kuwa Rais,

Chini ya ibara ya 110(5), (6) na (7)

Ya Katiba ya Jamhuri ya Muungano wa

Tanzania, a aRRRR..katika kazi

Ya Ujaji kwa kukustaafisha kwa manufaa ya

Umma kuagiza tarehe 13 Moi, 1991.

The operative part which is duly orphasized literally translates: “(the President)

has removed you from the office of a Judge by retiring you in the public interest

“Two anomalios are at once evident: first, it is the retirement of a judge in the

466
public interest; second, it is the apparent confusion between removing a judge

from office, and retiring him. I will address these matters in that order.

As observed by Mr. Mono, and rightly so, the Constitution does not provide for

the retirement of a person from judgeship in the public interest; on the contrary, it

expressly prohibits such a step. Art, 151 (2) (f) provides:

(2) For the purpose of interpreting the provisions of this constitution, the following

principles shall apply, namely:-

(a) RRR.., (b) RR (c) RRR.(d) RRR(d) R..)c)RRR..(f) reference in

this Constitution to the power to remove the holder of an office in the

service of the Government of the United Republic from his office shall be

construed as including references to any power conferred by any

legislation to

Provided that nothing in this principle shall be construed as conferring on any

person power to call upon any Justice of Appeal, a Judge of the High Court of the

Controller and Auditor-General to retire from his office.

The proviso to the provision unequivocally prohibits the exercise by any person

of power to retire a judge, and it follows that any purported exercise of such

power would be ultra vires the constitution. Perhaps it should be added that there

467
are four ways under the Constitution in which a High Court judge may coase to

hold office: by vacating office upon attaining the age of sixty years pursuant to

Art. 110 (1); by electing to retire from the service of the United Republic at any

time after attaining the age of fifty-five years pursuant to Art. 110 (2) ; by being

removed from office pursuant to the provisions of Art. 110 (7); and by resigning

from that office pursuant to the provisions of Art. 149. Beyond the Constitution,

death is the only other factor that may avail itself to terminate the appointment of

a judge. It should also be mentioned that these events do not necessarily have

the name implications on the future of the judge concerned, but I guess that I am

not called upon to discuss that subject here, I can only allude to it in the limited

context of the second anomaly to which I will now turn.

It has been pointed out that the contentious words in Annoxturo “A” also suggest

a confusion between removal from office and being retired from the public

service. To recapitulate, it was communicated to the applicant that the President

“has removed you from the office of a Judge by retiring you in the public interest.”

This suggests that retirement was viewed as a function of removal to the end that

while the objective appears to have been to remove the applicant from office, it

was supposed that the mechanism for realizing that objective was by retiring him.

I apprehend that this notion arose from the mistaken albeit innocent belief that

removal from office and being retired implied the same thing. And I am

strengthened in this view by the very words of exhibit, “C” and Annoxturo “A”. in

468
the former the Principal Secretary to the President informed the applicant, among

other things. In the latter he again said;

RRRRRRRRais aliagiza uelezwe kuwa

kuondolewa kwako katika kazi ya Ujaji

kwa maa na ya kustafishwa katika Utumishi wa Umma.

In both cases it literally translates; “RRRR.you should be informed that you

removal from the office of a Judge implies your being retired from the public

service. “I think, with respoot, and as now happily conceded, this was an

orronous appreciation of the concept of removal as excavated in Art. 110 (5), (6)

and (7) . Throughout these provisions removal is exclusively directed to the office

of a judge; in other words, it is with reference to removal from the office of a

judge only but not to the termination of a appoint out in the public serice

generally. There is a wast difference between removal from a particular office

and retirement from the public service. This is by no means a theoretical

conjecture but is capable of demonstration from the Constitution in the mamor it

troats the expression “effice in the service of the Government of the United

Republic.,’ In Art. 151 (1), this expression is defined thus;

“Office in the service of the Government of the

United Republic” shall have the Ordinary meaning of that expression and

includes service in the Armod

469
Forces of the United Republic and in the Polico Force

Or any other force established by law.

Giving the expression its ordinary imeaning, it is evident that it oncompasses the

whole spectrum of employment in the Government. To be retired from the public

service is, therefore, a wider stop and a much moro serious affair than moroly to

be removed from a particular office, like the office of a judge which Art. 110(7) is

all about. It is concerned only with removing from judgeship such persons as,

upon inquiry, night be found to be incapable of performing the functions of that

office, ether by reason of mental or bodily infirmity or for misbehavior. And while

so designed for that limited purpose it cannot, locally, be substitutes with or

express through retirement from the public services, that being a different stop

altogether. It follows from this dscunnigs that , onece again,

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

RRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

470
I think I can dispose of this matter very briefly. In my appreciation os section 34C

(3) it is directed against statements which, having guard to the time of their

making and content, my be seen as tonlign to influence the decision of the court

on disputed facts. Having said so, and while it must be condeded that Annoxture

“DI” was written while thse proceedings were perding, I do not see how this

document tends to influence the decision of this Court on any disputed fact. It is

not in dispute, but actually acknowledged, that Annexture “A” was written to the

applicant; additionally, it is not in dispute that Annexture “A” purported to retire

the applicant in the public interest, if that, too, should be regarded as a question

of fact. Annoxture “DI” does not seek or tend to influence the decision of the

Court on any of those matter. On the other hand, however and as submitted by

Mr. Mono, the question whether or not the applicant was properly retired in the

public interest, which question Annoxture “DI” seeks to put to rest, is not a

question of fact but one of law. In my judgment where a statement does not tend

to establish a disputed fact and/or where it import is on matters of law, such a

statement would not be excluded by section 34C (3). For this reason, I am

471
unable to agree with the applicant that Annoxture “DI”. is excluded by this

provision.

The applicant also submitted that Annoxture “DI” ought to be excluded on the

doctrine of estoppel. He cited the previsions of Section 123 of the Evidence Act

to the effect that when one person has, by this declaration, act or omission,

intentionally caused or permitted another person to believe a thing to be true and

to act upon such belief, neither he nor his representative would be allowed, in

any suit or preceding between himself and such person or his representative, to

lony the truth of that thing. He pointed out that Annoxture “A” was an intentional

declaration by the Government to the effect that he had been retired in the public

interest and that, believing the declaration to be true, he ated upon it by

communing these processing. In the circumstances, he argued that the

Government was estopped from denying the truly of Annoxturo “A” by purporting

to substitute Annoxturo “DI” for it. Mr. Mono responded by pointing out the

essential elements of stopped hitch he could not see in this case, and by

submitting that there can be no stopple against the law of the land.

Our Evidence Act of 1967 is largely inspired by the Indian Evidence Act of 1872;

indeed, S.123 under reference is in part material with S. 115 of the Indian statute.

In the case of Nurdia bandali V. Lombanis Tanganyika Ltd. (1963) E.A.304, the

Court of Appeal for Eastern Africa observed (at p. 317) that as the Indian

Evidence Act, which then applied to Mainland Tanzania, was designed to cover

472
the whole field of the law relating to evidence, and stoppel being a matter of

evidence, no estoppel could arise unless it was brought within the ambit of S.

115. By parity of reasoning, whoever seeks to plead estoppel must be able to

justiofy the plea in the context of S.123 of our evidence Act. The import of s.115

of the Indian statute was discussed by the Privy Council in Sarat Chunder Dey V.

gopal C. Under lara (1892), 19 I.A.203 where lord shand had this to say (at P.

215).

What the law and the Indian statute mainly regard is the position of the person

who was induced to act; and the principle on which the law and the statute rest

is, that it would be most inequitable and unjust to him that if another, by a

representation made, or by conduct amounting to a representation, has induced

him to act as he would not otherwise have done, the person who made the

representation should be allowed to deny or repudiate the effect of his former

statement, to the less and injury of the person who acted on it.

As can be gathered from this passage, stoppel is constituted by three essential

elements: first, a tacit representation by one person to another: secondly, an

intention that the representation should be acted upon by that other person:

thirdly, action by that other person to his detriment should the make of the

representation seek to repudiate it. See also country Automobiles Ltd. V.

hutchings biemer Ltd (1965).

473
E.A.304, at p.313. On such facts equity will intervene to estop the maker of the

representation from denying the truth of it.

Does the applicant’s case disclose the three elements as just set out? It is not

disputed that the government made a tacit declaration to him that he had been

retired in the public interest. There can be no doubt, either, that the declaration

was made with the intention that it should be acted upon by him. Two of the three

elements are thus established. I think, however, that a problem arises with and to

the third element, namely, whether the applicant actel upon the declaration to his

detriment by reason of government action in withdrawing Annoxture “A”. The

applicant claimed that he acted on the declaration by filing the application and, if I

understood his injection at one stap, that he suffered loss by way of terminated

salaries.

I think this is all interesting. I say so because, in the first place, it cannot be sail

that when he filed the application that he did so by way of acting one the

declaration in actual fact he did so to dispute it. He was aggrieved by it, he

considered it illegal, he dsired it quashed. It think I am correct in saying that

whom the statute proides and the courts lay down that the declaration should be

actel upon they mean to say that it should be taken advantage of. In the case

before no the applicant did not seek to take advantage of the declaration rather,

he wished that it was never made and took steps to set it aside. If I am correct in

this view, and I think I am, it means that the applicant has never acted upon the

474
declaration except in a negative some. Further, it is not the act of filing the

application that led to the applicant being denied his salaries. That was a

development arising from the fact of his retirement and it occurred long before he

filed the application. In my view of the matter as a whole, the applicant has never

acted on Annexture “A” as by statute contemplated and has never suffered less

or injury by reason of its withdrawal. Ironically, it may woll be that he could

probably to said to have actop on the document if he had proceeded to draw the

pension promised therein, and might be said to have suffered loss if Annoxturo

“DI” were construed as terminating that pension. I am otherwise of the view that

even at this juncture stoppel does not avail itself.

There is yet another dimension to this subject. It was submitted by Mr. Mono, and

rightly so, that stoppel does not lie against a statute. Where the law enjoins the

performance of a duty and even proscribes the made of its performance,

ostoppel cannot be invoked to prevent its performance or its performance in the

manner prescribed. It is also settle that estoppe cannot be invoked to prevent the

correction of errors in the performance of a statutory duty. I am grateful to Mr.

Mono for drawing attention to a relevant passage in the Third Edition of Sarkar’s

law of Evidence, at p. 1140, which I desire to cite.

Where a statute requires a particular formality, no stoppel will cure the defect. A

party’s opinion as to the legal effect of certain facts does not create an estoppel.

475
There can be no stoppel against the Government officer and the issue of a letter

on the basis of such wrong interpretation does not stop the Government from

claining enforcement of the p rovisions of a statute.

It was similarly said by Lord Maughars in Haritimo Electric Co. Ltd versus

General Diaries Ltd. (1937) 1 AU E.R. 748,755 that,

RRRRRRRRRRRwhere the statute imposes a duty of a

positive kind, not avoidable by the performance of

any formality RRR, it is not open to the defendant

to set up an stoppel to prevent it.,RR.

It is immaterial whether the obligation (to obey the

Statue) is enerous or otherwise to the party suing.

The duty of oach party is to obey the law.

This passage was cited with approval by Georges, C.J. in tarnal Industries Ltd.

Versus Commissioner of Customs and Excise (1968) E.A. 471, on facts which I

will summaries. The appellant company had imported into Tanzania over a

period of one year quantities of sodium sats of fatty acids in pellet form without

payment of customer duty pursuant to a written assurance by the Commissioner

of Customs and Excise that the chemical was of a class that did not attract duty.

Chemicals were free of duty if admitted as such by the Commissioner under tariff

476
itom 108(1) of the First schedule to the Customs Tariff Ordinance of Tanzania.

Subsequently a sample of the substance was taken to the Government chemist

for testing. As a result of the tests the appellant company’s clearing agent was

informed that the substance was after all liable to duty under tariff item 105 of the

schedule. In a bid by the Commissioner to recever the unpaid duty the appellant

company, inter alia, pleaded estoppel from claining against the company the duty

which should have, been paid but for the erroneous exemption. At the trial

Gerges, C.J. held that although in normal circumstances the doectrtine of

estoppel would apply, there was no stoppel against a statute. He was of the view

that the commissioner was bound to collect the unpaid duty, because the fact

that he had erroneously classified the chemical could not stop him from carrying

out his duty whom he discovered the original error . Although the decision was on

appeal reversed on another ground, the Court of Appel did not differ with

Georges, C.J. statement of the law relating to stoppel. In a dissenting judgment

law, J.A. said (at p.495): “RRR.. I understand (counsel for the appellant) to

concede that the loarned Chief Justice’s conclusions on the issue of stoppel were

right, as in my view they undeoubtedly were “For a brief but more recent

pronouncement on this subject; see D.P.P.V Mwita Marwa (1980) TIR 306.

Applying these principles to the facts of the instant case; we find that the

Government served the applicant with Annoxturo “A” purporting to retire him in

the public interest. This step was not only illegal in terms of Art. 151 (2) (f); it was

also contrary to the provisions of Art; 110 (70) which provide merely for the

477
removal of a judge from. Office for inability to perform the functions of that office.

One the Commission advises the President to remove a judge; the President has

no discretion, whether in substance or form, but simply to remove the judge as

advised. Any other measure device or strategy like retiring the judge in the public

interest, or purporting to remove him from office by retiring him from the public

service, would offend the express provisions of the constitution and be void. But

in the light of the authorities cited above, the Government cannot be prevented

from insisting on the correct interpretation of the law and from correcting such

errors. In the instant application, therefore, Annexture “DI” was validly issued to

set right the constitutional broach perpetrate in Annoxture “A” And for my part, it

matters not that this was done after the proceedings were commenced. I hold

that court proceedings cannot be used to compel anyone to persist in defying the

law. For these reasons, I am again of the view that stoppel does not avail itself.

Finally, there was a charge of bad faith on the part of the Government and I

understood the applicant to ground this charge in the fact that he received no

reply to Annoxture “BI” or “B2”, and was not provided with a copy of the

Commission’s report. He claimed that these omissions vitiated Annoxture “D1”. I

think I should similarly be frief here. First of all, as remarked at the beiggining,

there was no evidence that Annextures “B1” and “B2” over reached the

addresses and there would be no point bolabouring the issue. What is probably

significant is the applicant’s decision not to among to his application the letters he

addressed to the President and to the Principal Secretary to the President. As

478
regards the commission’s report, the commission was by law required to report to

the President only. Art, 110 (6) (b) which is relevant here does not provide or

suggest to the contrary My general answer to the charge is, as with the case of

stoppel, that there can be no bad faith in complying with the mandatory

provisions of the law. Annoxture “D!” was therefore not vitiated.

In sum, I have come to the conclusion that Annoxture “D1” was variedly issued

and effectively replaced Annexturo “A”. In the upshot, there is no ground upon

which the application can be further entertained I roach this conclusion without

hesitation considering that the turn of events has occasioned to the applicant that

which he gallantly stood to achieve. I uphold the preliminary objection and strike

out the application. As the Attornoy General incurred no costs, I make no order in

that regard.

Arusha

7th April, 1992

Applicant present in person

Mr. Mono, S.S.A for respondents.

479
K.S.K. LUCKKINGIBA,

JUDGE

7/4/1992.

I hereby certify this to be a true copy of the original

Ag. District Registrar,

Arusha

IN THE HIGH COURT OF TANZANIA

(MAIN REGISTRY)

AT DAR ES SALAAM
MISC. CIVIL CAUSE NO. 3 OF 1996

SAID JUMA MUSLIM SHEKIMWERI RRRR.APPLICANT

VERSUS

ATTORNEY GENERAL RRRRRRRR.RESPONDENT

480
RULLING

SAMATTA, JK:

This is an application by way of a chamber summons for an order of certiorari to

bring up and quash a decision of the President of the United Republic “retiring”

the Applicant, who was an Immigration officer, in the public interest.

The background to the application may, I think, be stated as shortly as is

consistent with intelligibility. June 1 1984, the Applicant was employed by the

Government Tanzania as an Immigration Assistant. Following a Promotion, in

February 1, 1991, he became an Immigration officer, Grade III. In the third

paragraph of his affidavit supporting the application, the Applicant asserts that

during the whole of his a in the civil service he was never formally warned,

reprimand or in any way penalized for anything done in connection with the

coincidental to, the performance of his duties. No information given in the

counter-affidavit contradictory of this averment of the 2nd June, 1995, issue of the

Daily News, a government and daily newspaper, there appeared an account,

among others, to the effect that the then Minister for Home Affairs had sacked 28

officar of the Immigration Department, including the Applicant, for receiving

bribes. Upon making inquiries about this story with his superiors the Applicant

was informed that the story was essentially false as, among other things, the

Minister lacked power in law to make the reported decision. About two months

later- on August 4, 1995, to be more precise – the Applicant received a leteer

481
addressed to him by the Acting Principal Secretary (Establishments), whose

body reads, in Swahili, as follows:

“Ninapenda kukuarifu kwamba, Mtukufu Raisi, amekustaafisha kwa manufaa ya

Umma kuanzia tarehe 20 Julai, 1995.

Amekustaafisha kwa mujibu wa Kifungu Na. 36*2) cha Katiba ya Jamhuru ya

Muungano

Wa Tanaania ikisomwa pamoja na ‘Standing Order’ Na. F35, 44 na 49 ©,

Kifungu Na. 8 (f) cha Sheria ya Malipo ya Pensheni Sura (371);

Kanuni za Utumishi Serikalini 1970 Kanuni Na. 29 (2)

Na Sheria ya Utumish Serikalini Na.16 ya mwaka 1989 Kifungu Na. 19 (3).

3. Aidha, kutokana na uamuzi huu wa kukustaafisha kwa Manufaa ya

Umma, utalipwa pensheni kwa utumishi wako Serikalini hadi tarehe 20

Julai, 1995”.

Speaking through his advocate, Mr Nassoro, the Applicant says that the

Presidents decision to retire him in the public interest is invalid in law and ought,

therefore, to be quashed by this court. Mr Songoro, Senior state Attorney,

opposed the application.

Before dealing with counsel’s submissions, it is necessary, I think, to quote in

Extenso the provisions of law relied upon by the President in reaching his

482
impugned decision. As expected, I will start with section 36 (2) of the Constitution

of the United Republic (hereinafter referred to as “The Constitution”). The section

reads:

“(2) Subject to the provisions of this Costitituion and of any relevant written law,

the power to appint persons to offices in the public services of the United

Republic, and the power of promotion; termination of appointment, dismissal and

disciplinary control of persons appointed to those offices shall be exercised by

the president, the service Commissions and such other authorities as may be

specified in respect of any office or category of offices by this Constitution or any

relevant writer law”.

Section 8 of the Pensions Ordinance (the Ordinance as amended by s. 6 of the

Laws (Miscellaneous Amendment Act , 1978, provides:

“8. Subject to the provisions of section 9A, no pension, gratuity or other

allowance shall be granted under this Ordinance to any officer except on his

retirement from the public service in one of the following cases:-

(a) On or after attaining the age of fifty: provided that in respect of –

(i) Officers in the Police Force of the rank of costable and officer (in) the

Prison Officer, Grad III, this paragraph shall have the effect as if “forty

years” were substituted for “fifty years”, and

(ii) Officers in the Police Force above the rank of constable and of or

below the rank of sergeant and officers in the Prison service above the

483
 rank of Prison officer, Grade III and of or below the rank of Prison

Officer, Grade 1, this paragraph shall have the effect as if “forty-five

years” were substitute for “fifty years”.

(b) in the case of transfer to other public service, in circumstances in which he

is permitted by the law or regulations of the service in which he is last

employed to retire on pesnsion or gratuity: Provided that, if his service is

superannuated under the Federated Superannuation system for

universities or similar insurance scheme, he has retired from the public

service on one of the grounds mentioned in paragraphs (a), (c), (d), (e)

and (f) of this section

(c) on the abolition of his office :

(d) on compulsory retirement for the purpose of facilitating improvement in the

organization of the department to which he belongs, by which greater

efficiency or economy may be effected;

(e) On medical evidence to the satisfaction of the appropriate authority that he

is incapable by reason of any infirmity of mind or body of discharging the

duties of his office and that such infirmity is likely to be permanent;

(f) In the case of removal from the public service in the public interest as

provided in the ordinance;

(ff) if he retires from the public service with the consent of the President, and the

President, by writing under his hand, declares that this paragraph shall apply to

him;

484
(g) on retirement in circumstances, not mentioned in the preceding paragraphs of

this section, rendering him eligible for a pension under the Pensions (Governors

or Dominions, etc) Acts, 1911 to 1947, of the United Kingdom or any Act

amending or replacing those Acts:

Provided that a gratuity may be granted to a female officer in accordance with the

provisions of this ordinance, who retires for the reason that she has married or is

about to marry, notwithstanding that she is not otherwise eligible under this

section for the grant of any pension, gratuity or other allowance”. Section 19 of

the Civil Service Act, 1989, a legislation which repeals and replaces the Civil

Service Act, 1962 (Cap. 509), is in the following terms:

“19.- (1) The power to dismiss and to terminate the appointment of civil servants

shall be exercised in accordance with the provisions of this section.

(2) The power to dismiss shall not be exercised unless.

(a) a disciplinary charge is preferred against him;

(b) he is afforded an adequate opportunity to answer the charge, and

(c) an inquiry is held into the charge in accordance with regulations

made under section 24.

(d) The President may remove a civil servant from the service of the

Republic if he considers it in the public interest so to do.

(e) Nothing in this section shall be construed as restricting.

(f) Nothing in this section shall be construed as restricting.

(g) The compulsory retirement of any person. Under section 10 or in

the paragraph (c), (d) or (e) of section 8 of the pensions ordinance,

485
 or under the provisions of the Tanganyika (Compensation and

Retiring Benefits) order in Council, 1961, or Retirement (Special

Provisions( Act, 1962, or sub-section (2) of section 17 of the

Republic of Tanganyika (Consequential, Transitional and

Temporary Provisions) Act, 1962’ or

(h) The termination, otherwise then by dismissal, of the service of any

public officer, other than the substantive holder of a pensionable

office, in accordance with the terms of his employment or the

dismissal or any person from any office on the personal or domestic

staff of the President or of any person from any office on the

personal or domestic staff of the President or of any person holding

an office the emoluments of which are payable at an hourly or daily

rate.

(i) Nothing in sub-section (1) or (2) shall apply to the dismissal of a

civil servant who is an employee to whom the provisions of Part III

of the Security of Employment Act, 1964, shall apply.

(j) Nothing in subsection (1), (2) or (3) shall apply in relation to any

person holding the office of controller and Auditor – General” I

must now proceed to quote Regulation 29 of the Civil Service

Regulations, 1970 (the Regulations): The Regulation reads: “29 –

(1) Where the Principal Secretary is of opinion that a reason exists

why an officer servidng on pensionable terms and who has attained

the normal age of voluntary retirement, should be called upon to

486
 retire otherwise than on disciplinary or on medical grounds. The

Princiapl Secretary may request the officer concerned to show

cause why he should not be compulsorily retired. The Principal

Secretary shall forward any representations made by the officer,

pursuant to the notice given to him, together with his own

recommendations to the appointing authority, who shall decide

whether or not such officer should be called upon to retire.

(k) Where a principal Secretary is of the opinion that the president

should be invited in the exercise of the powers conferred upon him

by subsection (3) of section 20 of the Act (the Civil service Act,

1962), to consider the removal of an officer in the public interest,

the Principal Secretary shall furnish to the Principal Secretary to the

President through the Principal Secretary (Establishments) such

particulars as the President may, from time to time, by general or

specific direction, require”. Standing orders F. 35, 44 and 49 for the

Public service, 1971, read as follows:

Standing Order F. 35

‘F.35 All appointments at the plessure of the president – Excepting Judges of the

High Court and the Controller and Auditor-General whose tenure of office is

governed by the terms of the Interim Constitution of Tanzania, all other officers

hold their respective offices subject to the pleasure of the President of the United

Republic. The pleasure of the President that any one of these officers should no

487
longer hold in may be signified through the Principal secretary (Establishments)

in which case no special formalities are required”.

Standing Order F. 44

‘F. 44 Removal in the public interest. The President may remove a civil servant or

police officer from the public service if he considers it is in the public interest to

do so otherwise than for the purpose of localization of the public service. The

decision of the President that an officer be removed from the service in the public

interest may be signified through the Principal Secretary (Establishments). In

which case no special formalities are required. The question of pension will be

dealt with the accordance with the relevant provisions of the Pensions Ordinance

(Cap. 371)” Standing Order F. 49

‘F. 49 Grounds for retirement on pension and/ or gratuity under the pensions

Legislation – The pensions Act (STC), Cap. 371) and the Regulations made

thereunder, set out the circumstance under which a pensionable officer may elect

to retire or may be called upon to retire other than on disciplinary grounds. These

grounds are summarized below:-

(a) on or after attaining the age of 45 years:

Provided that an officer of the rank of constable in the Police Force or an officer

of the rank of Prison Officer Grade III in the Prisons Service may elect to be

called upon to retire after he has attained the age of 40 years;

(b) on the abolition of his office;

488
(c) for pupose of facilitating improvement in the organization of the Dpartment

to which he belongs by which greater efficiency or economy may be

effective;

(d) on medical grounds;

(e) On medical grounds;

(f) Female officers may elect to retire on marriage, and will be granted such

gratuity or pension, if any, for which they may be eligible.”

(g) Those are the privisions of law on which the President, according to the

lette addressed to the Applicant by the Principal secretary (Establisments).

Quoted above, based his impugned decision. I will now proceed to deal

with the contentionsaddressed to me by counsel. I hope I can summarise

those contentions very briefly without doing any injustice to them. In his

engaging argument Mr. Nassoro contended that the President’s decision

is invalid for the following reasons; (1) the basis for the decision is vague

because the provisions of law relied upon therein deal with matters of

employment which are incompatible; (2) the standing orders referred to in

the Principal Secretary’s letter have no force of law as there were declared

by this court (Mwalusanya J) in James F. Gwagilo Attorney General, Civil

case No. 23 of 1993 (Unreported) to have been superseded by the

Constitution and the Civil Service Act, 1989; and (3) the failure by the

President to give reasons for his decision is fatal to the said decision: the

President was bound in law to disclose to the Applicant the factor or

factors which, in his opinion, constituted the alleged public interest. Mr

489
Songoro urged me to hold that the President’s decision is proper and in

accordance with the law of the land. He forcefully contended that the

paramount words in the Principal Secretary’s letter, as far as the reason

for the President’s decision is concerned, are the words “ amekustaafisha

kwa Manufaa ya Umma”. According to the learned Senior State Attorney,

the Applicant had no right in law to be given more information than that.

Counsel urged me to hold that the President acted within his powers, and

the procedure he applied was correct and sufficient. It seems to me that it

is desirable, if not necessary, that some of the general principles wich I

consider to be relevant to the determination of the application now before

me should be distinctly set out. In my opinion, the following are the

principles:

(1) The common law principle that a civil servant is dismissible at

pleasure (see Shenton V. Smith (1895) A.C. 229 and Gould v

Stuart (1896) A.C. 575) is not part of the law of this country: see

section 36 (2) of the Constitution as read together with section 26

(1) of the said Constitution, and James F. Gwagilo’s case supra. In

this country, civil servants are dismissed for misconduct only: see

section 19 (2) of the Civil service Act, 1989. when a civil servant is

dismissed cause must be assigned. The English common law

doctrine of “service at pleasure” has, as, I hope, amply

demonstrated above, no place in the law of this country. The saying

490
 “Whatever pleases the emperor has the force of law” forms no part

of our law.

(2) While in England the courts are not concerned with the Civil service

as such, because the civil servant there is in law only a servant of

the crown, dismissible at the pleasure of the Queen without notice

or compensation, in Tanzania the civil servant has some legal

rights, including the right to be afforded an opportunity to show

cause why he should not be dismissed from the service which are

enforceable in the courts

(3) No power conferred by law on a public leader or officer is absolute

or limitless. Every such power must be exercised in good faith and

in accordance with the Constitution and other laws. Any assertion

that presidential powers brook no limitation would have no basis in

law.

(4) Compulsory retirement of a civil servant or his removal from service

in the public interest may be challenged in this court on, among

others, any of the following grounds:

(5) (a) the legislation under which the impugned decision was made is

unconstitutional;

(6) the decision is mala fide, i.e., it is actuated by malice or some

purpose other than that for which it is authorized by the law: malice

would be held to exist where, for example, the alleged public

491
 interest, where removal is concerned, is founded upon non-existent

facts:

(7) the decision is perverse, that is to say, one which no responsible

man would have made.

(8) The standing Orders for the Public service have no legislative

effect; they are meant for departmental and administrative

purposes: see L.g.Lazaro v Josephine Mgombera Civil Appeal No.

2 of 1986 (C.A.) (unreported). Those Orders form the internal law of

the Civil Service. Having stated these principles, I proceed to ask

myself whether the impugned decision of the president is not valid

in law. My mind is free from doubt as to how that question ought to

be answered. I agree with Mr Nassoro that the President’s decision

is unsupportable in law. I hold that view for the following reasons:

(1) The letter from the Principal Secretary cites provisions of law wich are

incompatible, that is to say, provisions which do not go together. Whereas

the removal of a civil servant from service under s. 8 (f) of the Ordinance,

S.19 (3) of the Civil Service Act, 1989, Regulation 29 (2) of the

Regulations and Standing Order F 44 is based on the general requirement

of public interest, the removal under standing order F.49 © must

specifically be based on the need of, to quote the Order, “facilitating

improvement in the organization of the Department to which (the civil

servant) belongs by which greater efficiency or economy may be

effective”. By being based on the two sets of provisions the President’s

492
 decision has, I agree with Mr Nassoro, caused the Applicant considerable

embarrassment.

(2) The citation, the Principal Secretary’s letter, of Standing Order F. 35 as

being one of the legs on which the President’s decision was intended to

stand suggests, very strongly, that in making, or coming to, his decision

the president was under the mistaken belief that the Applicant held his

office in the Immigration Department at his (the President’s) pleasure. I

have, I hope, sufficiently demonstrated that in this country civil servants,

including immigration officers, do not hold office at the pleasure of the

president. It is perfectly correct to say that a civil servant’s security of

tenure is lesser than that of a judge, but it is equally correct to observe

that security is not as limited as is implied by the Principle Secretary’s

letter. Standing Order F. 35 cannot be valid in law, because it is

inconsistent with the provisions of sections 22 and 36 (2) of the

Constitution as read together with sction 11 (1) of the said Constitution.

(3) No provision of law speaks of retirement of a civil servant in the public

interest. Neither section 19 of the Civil service Act, 1989 nor Regulation 29

of the Civil service Regulation, 1970, confers on the President power to

retire a civil servant in the public interest. The provisions speak of

removal, and not retirement, in the public interest. It speaks of removal.

Paragraph (d) of section 8 of the Ordinance refers to compulsory

retirement for the purpose of facilitating improvement in the organization of

the department to which the servant belongs, by which greater efficiency

493
 may be effected. Neither what is stated in the Respondent’s counter-

affidavit nor what fell from the lips of Mr Songoro at the Bar during the

hearing of the application gives even a faint suggestion that the purported

termination of the Applicant’s employment falls under one of the

categories of compulsory retirement mentioned in section 10 of the

Ordinance, as amended by s.7 of the Pensions Law (Miscellaneous

amendments) Act, 1978. When all this is taken ito account, it must be

correct to say, as I do, that the use of the word “amekustaafisha” in the

Principal Secretary’s letter to the Applicant causes even more confusion

as to exactly why the President acted in the manner he did with regard to

the Applicant’s employment.

Since I am of the settled opinion that the above three grounds constitute a

sufficient warrant for faulting the President’s decision, I do not find it necessary to

consider Mr Nassoro’s argument that, when ordering the removal of civil servant

from public service in the public interest, the President as bound in law to give

reasons disclosing factors which, ihis opinion, constituted public interest in the

particular case. In James F. Gwagilo’s case supra, Mwalusanya J. was of the

clear opinion that such reasons must be given . Though the point is not an

uninteresting one, I do not, for the reason I have given, think it right to lengthen

this ruling by discussion it.

494
Before I part with this application, I would like to say a word or two on the tre

application of the provisions of section 23 of the C ivil service Act, 1989. The

section reads “23 – (1) No proceedings shall be brought in any court on ground

only that the provisions of this Act, other that the provisions of sub-section (2) of

section 3 and Part V, have not been complied with; but nothing in this section

shall apply to any criminal proceedings for an offence against any of the

provisions of the Act.

(2) The question whether –

(a) The President validly performed any function conferred on him by section

36 of the Constitution or by this Act;

(b) The commission or other delegate has validly performed any functions the

exercise of which has been delegated or deputed to it or him, shall not be

enquired into by or in any court, subject to the provisions of sub-section

(3).

(4) Where a person is dismissed, the provisions of sub-section (2) shall not

apply in relation to that dismissal unless prior to the dismissal, the

provisions of section 19 (2) are complied with”.

I was inclined to think that I was not deterred by these provisions from

entertaining the instant application. In my opinion, those provisions do not take

away the supervisory jurisdiction of this Court where it is alleged, as is the case

in the present application, that a decision made by the President under section

36 of the constitution and the provisions of the Civil Service Act, 1989, is invalid

495
in law. As I understand the law, if a decision purportedly made by an authority

which falls under the supervisory jurisdiction of this Court is challenged on the

ground that it is not valid in law or it is null and void it becomes the bounden duty

of the Court to hear the aggrieved party. It must be distinctly understood,

however, that this Court’s supervisory jurisdiction is one of supervision and not of

appeal or revision. When it exercises that jurisdiction this Court does not sit as a

super-exercises. Thus, when it issues an order of certiorari the court does not

substitute another order in the place of the quashed order, but it removes that

order out of the way, as one which should not be used to the detriment of any

individual: see Walsall Overseers v Railway Company (1978) 4 App. Case 30,

39. Where an authority exceeds its jurisdiction, its decision will be regarded by

the courts as invalid in law and beyond the protection of any exclusionary

formula: see Anisminic V Foreign Compensation Commission (1969) 2 A.C. 147.

Parties to disputes as to legal rights must have access to legal tribunals for the

settlement of those disputes.

For the reasons I have given, I hope not at an inordinate length, I allow the

application and quash the President’s decision purporting to retire the Applicant

in the public interest. The Respondent is to pay the Applicant’s costs in the

application.

B.A Samatta

JAJI KIONGOZI

496
7. REMEDIES

1. Ajit Gordhan v Director of Immigration, Misc. Civil Cause, Misc.Civil

Cause No. 31 of 1991, HC (DSM)

2. Assistant registrar of Buildings v’Kibwana 1987 TLR 84 (CA).

3. Hamisi Ruhondo & 5 Others v TAZARA, Civ Appeal No. 1 of 1986

(CA).

4. Kaijage v Esso Standard, Civil Appeal of No10 of 1982

5. Lausa & 106 others v Minister of Lands & NBC, Civil Appeal No. 15

of 1994 (CA)

6. Mv Home Office & Anor, (1993(3 ALLE.R 537

7. Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. Civil

Appeal No. 3 of 1994 HC at Songea.

8. Obadiah Saleh v Dodoma Wine, Civ Case No. 53 of 1990 HC at

Dodoma

9. Patman Garments v Tanzania Manufacturers (1981) TLR 303

10. Simeon Manyaki v Executive Committee and Council of IFM, Misc.

Civil Cause No. 42 of 1984

497
 11. Vidhyadhar Chavda v Director of Immigration Service Misc. Civil

Case No. 5 of 1995, HC at Dar es Salaam.

7. REMEDIES

12. Ajit Gordhan v Director of Immigration, Misc. Civil Cause, Misc.Civil

Cause No. 31 of 1991, HC (DSM)

13. Assistant registrar of Buildings v’Kibwana 1987 TLR 84 (CA).

14. Hamisi Ruhondo & 5 Others v TAZARA, Civ Appeal No. 1 of 1986

(CA).

15. Kaijage v Esso Standard, Civil Appeal of No10 of 1982

16. Lausa & 106 others v Minister of Lands & NBC, Civil Appeal No. 15

of 1994 (CA)

17. Mv Home Office & Anor, (1993(3 ALLE.R 537

18. Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. Civil

Appeal No. 3 of 1994 HC at Songea.

19. Obadiah Saleh v Dodoma Wine, Civ Case No. 53 of 1990 HC at

Dodoma

20. Patman Garments v Tanzania Manufacturers (1981) TLR 303

498
 21. Simeon Manyaki v Executive Committee and Council of IFM, Misc.

Civil Cause No. 42 of 1984

22. Vidhyadhar Chavda v Director of Immigration Service Misc. Civil

Case No. 5 of 1995, HC at Dar es Salaam.

AT DAR ES SALAAM

MISCELLANEOUS CIVIL APPLICATION NO. 31/91

In the Matter of an application for leave to apply for orders of certiorari and

Mandamus by AJIT KUMAR GORDHAN

AND

In the Matter of the Immagration Act. No. 8 of 1972 the Citizenship Ordinance,

Cap. 452, the Citizenship Act, 1961, Cap. 512 and Age of Majority (Citizenship

Laws) Act No. 24 of 1970.

BETWEEN

AJIT KUMAR GORDHAN RRRRRRRRR.APPLICATION

AND

THE DIRECTOR OF IMMIGRATION RRRRRRR..RESPONDENT

499
RULING

KYANDO, J.

This is an application for leave to apply for the prerogative orders of certiorari and

Mandamus. It is sought by the applicant to apply to “quash the decision and

orders of the respondent dated 30th December, 1990, and 19th Fevruary, 1991,

declaring the applicants prohibited immigrants and an order compelling the

respondent to deal with the applicant’s matters, if he still wishes, in accordance

with the law”

An interim order is also sought and the prayer for this is couched in these terms:

“That this honourable Court may be pleased to order a temporary suspension of

the respondent’s order against the first applicant pending the determination of the

application.”

The application is made under s.17 (2) of Part VII of the Law Reform (Fatal

Accidents and Misc. Provisions) Ordinance, cap. 36, as amended by Act 55 of

1968, and section 95 of the Civil procedure Code, 1966. When it was filed for the

first time, it was supported by an affidavit sowrn by Mr. Mchora, who is counsel

for the applicant in this application. I directed his clients personally to swear their

own affidavits in support of the application, and this was done. But then in the

affidavits, while it was alleged tha the Minister for Home Affairs was the one who

had signed the “notice to Prohigited Immigrant, “which notice is the one

containing the decision or orders sought to be quashed by certiorari and a copy

500
of which was annexed to the affidavits, the notice itself showed that it had in fact

been signed “for the Director of Immigration services”. I pointed this out to Mr.

Mchora and he later amended the applicants affidavits. He also altered the entire

structure of the case. Originally the applicants were three, viz., AJIT KUMAR

GORDHAN, MRS BARTI GORDHAN and UDAY KUMAR GORDHAN. Mr.

Mchora asked to withdraw the latter twos’ applications and this was done, so that

we now remain with only AJIT KUMAR GORDHAN as the applicant in this

application. Secondly, in its original form the application was against the Minister

for Home Affairs (First Respondent) and the Director of Immigration against the

first respondent, the Minister for Home Affairs. This was granted and now the

application is against the Director of Immigration only as the respondent.

On 25.4.91 also, I posed to Mr. Mchora the point whether in an application for

prerogative orders such as the present one, other reliefs or remedies such as the

second one referred to above, i.e. an order for temporary suspension, which in

effect aounts to an order of temporary injunction, could be joined, I asked him to

look into the point and give me his view on it on 2.5.91 On 2.5.91 Mr. Mchora

informed me that his research had not established anything, one was or the

other, on the point. He submitted, however, that for the ends of justice, I should

grant the second prayer in the Chamber summons also so that the applicant is

enabled to be present in the country to prosecute this application – if leave to file

it is granted.

501
I am not certain of the sufficiency of Mr. Mchora’s research on the point I asked

him to look into. There are enough materials and decided cases which would

have certainly enabled him to form a view on the point. These are for example,

the ones I am about to review or refer to below. But he could also have looked at

(1951) 11CLJ 40; (1957 1958) 12 NILO 78; de Smith, “Judicial Review of

Administrative Action” Appendix x1; (19955) 18 MLR 138; (1976) 92LR 334 and

RJE Gorden “Judicial Review: Law and Procedure” (1985).

The reason I posed the point to Mr. Mchora is because the law Reform (Fata

Accidents and Miscellaneous Provisions) Ordinance (Amendmont Act, 1968, the

source of the orders of mandamus, certiorari and prohibition in Tanzania,

mentions only these three orders. It requires no mentioning, of course, that we in

Tanzania have adopted the idea of these orders from England. In his book

“Administrative Law” 2nd. Edn., clarendon Press, Oxford (1917), Prof. Wade

comments as follows at p. 127 on the point in so far as the position in England on

these remedies is concerned:-

“RRRR.prerogative remedies cannot be sought alternatively to other remedies.

A plaintiff often needs to ask for remadies in the alternative, for instance for

damages or an injunction or but, as the court may determine. But the prerogative

remedies scan be sought only by their own peculiar process, which reflects their

peculiar natureR..They cannot, therefore, be married to any other form of

action.”

(Underscoring supplied).

502
The above position was enshrined in such decisions as that in underhill and

another v Ministry of Food (1950) 1 All Er 591 and it is the position which

appears to be in accord with the provisions of our Law Reform (Fatal Accidents

and Miscellanenous Provisions) Ordinance (Amendment) Act, 1968. But the

position as it obtains under the Act was considered by Mapigano, J., in ruling

which he gave in (HC) Dar Es Salaam Registry) Misc. Civil Cause No. 127 of

1989 (In the Matter of the Mining Act, 1979, section 50 and in the Matter of an

application for orders of Certiorari and Corporation (2nd applicant) and Outkumpu

Oy (3rd applicant) vs the Minister for energy and Minerals, (respondent)

(unreported). The point I consider here was taken and fully argued before him,

and Mapigano, J., in his ruling of 21.6.90 stated, inter alia:-

“In England injunction is apparently conceived to the basically a private law

remedy, and the position is that prerogative remedies cannot be sought

alternatively to such remedy or be married to any other form of action. They can

be sought only by their own peculiar process, which reflect their peculiar nature.

In Tanzania, as Dr. Lamwai pointed out it has been the practice to grant interim

injunction in proceedings for prerogative remedies where it has been deemed

just and convenient to do so, natably in immigration matters to restrain the

authorities from repatriecting or expelling people from the country pending the

final conclusion of proceedings for the issue of habeas corpus. That, in my view,

503
is good practice, and whether the machinery of the central government would be

unduly impeded by the issue of such injunction in a particular case should be one

of the points to be considered by the court in deciding the question whether it is

just and convenient to grant the injunction.

I hold that the application for interim mandatory injunction is maintainable in law

in Tanzania in cases such as the instant one.”

This decision by Mapigano, J., with which I respectifely agreed amelioraters to a

degree, the handicaps which have traditionally at tended prerogative remadies

and as they appear to have been originally conceived under the Law Reform

(Fatal Accidents and Miscellaneous Provisions) Ordinance, (Amendment) Act,

1968. The decision also significantly improves on the potion as one finds in the

passage from Prof. Wade’s book reproduced above. That, as already indicated,

was the position in England then. However, there too, i.e. in England, the position

has now been radically altered. The change was made in 1977, about ten years

after the year of the edition of Prof. Wade’s book I have referred to above. In their

book, “O. Hood Philips’ Constitutional and Administrative Law”, Sweet & Maxwell,

(7th Edn) O. Hood Philips and Pacel Jackson at p. 683 explain the change and

the present position thus:-

“Before the reforms of 1977 litigants who resorted to the supervisory jurisdiction

of the High Court had to choose which order they wished to seek. A prerogative

order could not be sought together with or as an alternative to other remedies

504
such as damages or on injunction. The ambit of certiorari and prohibition was

limited to bodies performing judicial function, a concept of uncertain width. Other

characteristics (and defects) of the orders led litigants increasingly to prefer the

remedies of the injunction and the declaration. Following various proposals for

reform, the Rules of the Supreme Court were amended in 1977 to provide a

procedure known as an application for judicial review which enables a litigant to

seek relief while leaving to the Court the decision as to which particular remedy is

appropriate.

A litigant may proceed by way of an application for judicial review where the

remedy sought is (i) an order of certiorari, prohibition or mandamus or (ii) a

declaration or injunction. The latter remedies may be granted on an application

for judicial relief if the court considers it just and convenient to do so having

regard (a) to the nature of the matters in respect of which relief may be granted

by way of certiorari, prohibition or mandamus, and (b) the nature of the persons

and bodies against which relief may be grented by such orders R.. A claim for

damges may be include in on application for judicial review. Where the Court

considers that the proceedings should have been commenced by writ it may

order them to continue as if so commenced. To be entitled to seek judicial review

the applicant must have what the court to be a sufficient interest’ to the matter to

which the applicant relates.”

The “sufficient interest” test replaces the locus standi “test which applied prior to

the reforms. The learned authors of “O. Hood Phillips’ Consitutional and

505
Administrative Law” also point out, at p. 682, that the reforms were given

staturory recognition by the supreme court Act, 1981, section 31 (They had been

originally introduced (in 1977) by adding a new Order 53 to the Rules of the

Supreme court. These reforms represent a great advance in England on the

point under consideration herein. Under the Law reform (Fatal Accidents and

Misc. Provisions) Ordinance (Amendment) Act, 1968, the Chief Justice is to

make rules providing for the manner in Tanzania of applying for the orders which

the Act provides for, i.e. the orders of prohibition, mandamus and certiorari. To

my knowledge, and as Mapigano J., also point out in his ruling I have reffered to

above, up to now the Chief Justice has not made the rules. It is hoped that if and

when he makes them he will adopt the very reformed and flexible procedure

obtasining in England at the moment, i.e. the procedure for applying for

prerogative orders.

For now, however, I think the position in Tanzania is, as I have already indicated,

as stated by Mapigano, J., if the part of his ruling which I have reproduced above.

I hold, like Mapigano, J., therefore, that an order for temporary injunction, or

“temporary suspension” (the words employed by the applicant in the Chamber

summons) as sought as a second prayer in this application can be joined with a

prayer or application for a prerogative order or orders, subject of course, to

considerations of convenience and justice.

506
Should the prayer then be granted in this case? It is, as is clear, an immigration

case, cases which by practice in Tanzania, as Mapigano, J., notes in his ruling,

temporary injunctions pending determinations of applications for prerogative

orders are commonly granted. The documents relating to the application (Such

as the affidavits) by telefax. I think therefore that it is just and fair that he should

be allowed to be present in the country pending the determination of the

application he has filed, so that he can prosecute it. I grant the prayer for

“temporary suspension” therefore. I grant leave also to the applicant to apply for

orders of certiorari and “an order compelling the respondent to deal with the

applicants matters, if he still wishes, in accordance in the law” as.

507
TANZANIA LAW REPORTS (1987) T.L.R.

A THE ASSISTANT REGISTRAR OF BUILDINGS

FREDRICK G. KIBWANA

COURT OF APPEAL OF TANZANIA (Mustafa and

Omar. JJ..A. & Mapigano. Ag. J.A)

B 29 August, 1987 – MWANZA

Administrative law – Issue of order of certiorari – Conditions. Land law – Landlord

tenant relationship – Tenant not served with notice of termination of tenancy-

Whether order of certiorari can issue.

A decision was made by an Assistant Registrar of Buildings to terminate the

tency of the respondent. A prayer for the order of certiorari to issue was granted

by the High Court. The decision

D terminating the tenancy of the respondent was quashed and he was reinstated

as the lawful tenant of the premises. The Assistant Registrar of Buildings

appealed against this decision.

Held: Certiorari being a discretionary remedy for the courts to issue,

E It can not be issued in a case where there is already a contractual relationship

between landlord and tenant – relationship of commercial or business nature.

Recourse to a court of law to adjudicate on breaches of contract would be a

better procedure.

F Appeal allowed.

508
No cases referred to.

Omar and Mustafa, JJ.A. and Mapigano, Ag. J.A.: This

G appeal emanated from an application by Fredrick G. Kibwana, now the

respondent , against the Assistant Registrar of Buildings, the appellant for the

order of certiorari to issue in order to quash the decision of the Assistant

Registrar of Buildings in terminating the tenancy of the respondent.

H The prayer for the order of certiorari to issue was granted by the High Court

(Mwalusanya, J) ; the decision of terminating the tenancy of F.G Kibwana was

quashed and he was reinstated as the lawful tenant of the premises.

Against this decision of the High Court the Assistant Registrar of Buildings

appealed to this court. The most important ground of appeal (and there are

eleven of them) was that the order of certiorari. was bad in law. Also the learned

judge misdirected himself on the fact by holding that the respondent had no

alternative remedy available to him.

The learned judge quoted para 147 of Halsbury’s Laws of England which states

that certiorari “will issue to quash a determination for excess or lack of jurisdiction

or error of law on the face of record or breach of the rules of natural justice or

where the determination was procured by fraud , collusion or perjury.”

It this case the learned judge held that since the tenant was not served with any

demand notices for arrears of rent or letter of notice to quit the premises, the

tenant was condemned unheard which was in breach of rules of natural justice.

509
Be that as it may, I hold as did my brother Mustafa, J.A. that certiorari being a

discretionary remedy for the courts to issue, it cannot be issued in this case

where there is already a contractual relationship between landlord and tenant – a

relationship of a commercial or business nature. The recourse to the courts of

law to adjudicate on the breaches of contract would be a better procedure.

I too would allow the appeal, quash the order made and set aside the ruling

made by the High Court. I would award the costs of the appeal to the appellant.

510
IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

MISC. CIVIL CASE NO. 141/94

N.M.C. RRRRRRRRRRRAPPLICANT

VERSUS

HAMISI JUMA & 90 OTHERS RRR1ST RESPONDENT

RULING

MACKANJA J.

We can safely say that the respondents were until the 31 day of December,

1984, employees of the applicant. And it is now common knowledge that they

were found to constitute labour suplusage in consequence of which they were

retrenched. It is also beyond controversy that they kept quiet after the

redundancy they complain of was effected until the 24th day of February, 1992,

when they lodged their complaint before the labour commissioner. There was

therefore a period of eight years which separaters the two events. They were at

that time being advocated for by the Legal Aid Committee of the Faculty of Law

of the University of Dar es Salaam. Their grievances were forwarded to the

Minister responsible for labour (the minister) who gave the green light to the

Industrial Court to inquire into the trade dispute. An inquiry was indeed

conducted and a report, as per law, was made available to the minister. Upon the

reasons he gave the minister decided to order the re-instatement of the 91

511
applicants with full benefits. That decision was sent to the Industrial Court which

registered it, an act which transformed it into an award of the Industrial Court. As

we shall have occasion to see presently, such on award is final. No one can,

therefore, challenge it by way of an appeal to a superior courtl The employer

having been aggrieved by that award, and there being no room for him to appeal,

has lodged this application for the prerogative order of certiorari to remove into

this court and quash the minister’s decision.

According to the practice of this Court the application is supported by and the

statement which contains the evidence and the grounds, respectively, on which it

is based. By reading the statement one may also notice the relief’s which are

being sought. It may be opportune at to point out that at the close of the

pleadings learned counsel for both were directed to file written submissions. That

they did quite timeously with great clarity. For that we respectifully commend Mr.

Kisusi for the applied and Mr. Mallaba, for the respondents.

The statement contains six grounds-cum-reliefs. The first two grounds question

the constitutionality or otherwise of section 9B(1) of the Industrial Court of

Tanzania Act, No.41 of 1967 as repealed and replaced by the Permanent Labour

Tribunal (Amendment) Act, No. 18 of 1977. It is contended that those provisions,

to the extent that they make the Minister’s decision and, inferentially, the award

of the Industrial Court final section 9B(1) is unconstitutional. By reason of that

512
alleged circumstance, it is further contended that the Minister’s decision is not

intra vires his powers for he lacked jurisdiction.

We are certain, indeed, as we are called upon to hold, that section 9B of the said

Act does contain what we normally call an ouster or fifnality clause.

It states categorically that-

“ 9B-(1) Upon receipt of a report made by the Industrial

Court in respect of any matter referred to it under

section 9A, the Minister shall make a decision in

relation to matters contained in the report, and

that decision shall be final”

Mr. Kisusi is now urging us to pronounce those provisions as being

unconstitutional. Mr. Mallaba, of course, presents a rival proposition.

Mr. Kisusi has made very forceful arguments in persuit of his contention that

section 9B(1) negates the applicant’s right of appeal and, that therefore, it should

be declared null and void. Mr. Kisusi has made the point that section 9B(1) as

read with section 27(IC) of the said Act extinguishes the applicant’s right of

appeal, a right which is entrenched in Article 13(6) (a) of the Constitution which

guarantees the right to appeal against decisions of inferior courts and tribunals.

The only way anyone can challenge the award of the Industrial Court, he

contends, is by revision. The right to revision is also clogged, he laments, by the

Industrial Court of Tanzania (Revision of Proceedings) Rules, 1992. These Rules

restrict the Industrial Court to revise its decisions and proceedings to two

513
situations, namely (a) where the party applying for revision did not rev=ceive

notice of the proceedings and (b) where the decision was made in the absence of

that party. He concedes that in these circumstances the remedy of revision is not

open to his client because he does not qualify under the conditions which have

been laid down by the Rules. He contends further, as we are also awre, that he

right of appeal is constitutional. He cites two cases in support of his argment:

James F. Gwagilo V. Attorney – General, Civil Case No. 23 of 1993 (Unreported(

and Njombe / Ludewa/Makete Co-operative Union V. Minister for Labour, Youth

and Culture, Misc. Civil Cause No. 8 of 1994 (Unreported). We are aware of

more decisions on this point but we think that that is not the issue, really. The

issue is whether the applicant can assail the constitutionality of a statute in an

application such as this one. We make this observation with the full knowledge of

the pronouncement of the Court of Appleal regarding ouster clauses which Yest

exclusive jurisdiction in quasi-judicial tribunals. We may only observe that there is

a remarkable distinction between the background in Attorney-General V. Loha

Akkonaay and Joseph Lohay (CA) Civil Appeal No. 31 of 1994 (Unreported). The

distinction resides in the manner and mode in which the litigation was instituted in

the Akkonaay case. The latter case was not instituted as an application for

prerogative orders; it was a petition for a declaratory judgment that the provisions

of a statute which ousts the jurisdiction of the municipal courts is unconstitutional.

And that was precisely the decision of the Court of appeal.

514
Mr Mallaba has traced the history of the functions of administrative and social

bodies and how they function. We commend him for that scholarly literature but

we think it will not be of any assistance to the cause he is persuing. Suffice it to

say that he finally comes to the crux of the matter at page 6 of his written

submissions. He submits in paragraph 2.4.6 that finality clauses, otherwise called

ouster clauses, in statutory provisions are to be understood to mean what

parliament intended. Which also means that a statute, however unpopular, must

not be rendered nugatory by the Courts solely because someone does not like it.

If such legislation takes away some else’s rights it is the duty of that person to

challenge its constitutionality according to the practice obtaining in this Court, by

a petition by way of originating summons. And this is not a light matter, because

suc an applicant must also do so in conformity with paragraph 5 of Article 30 of

the Constitution. Mr. Mallaba draws our attention to these provisions in

paragraph 7.1 of his written submissions. We are of the view that he is quite right

in his approach. It is by reason of the foregoing observations that we now hold

that paragraphs (a) and (b) of the statement are untenable. In this connection we

also find that the decisions which have been cited by Mr. Kisusi, for which we are

grateful, are obviously distinguishable from the facts on which the instant case is

founded.

This, then, brings us to paragraphs (d) (d) (e) and (f) of the statement. We

propose to consider paragraph (f) first because in the even we hold that the trade

dispute, the genesis of this application, is time-barred, there will be no further

need to consider and determine the remaining grounds. In this connection the

515
applicant, through its learned counsel, Mr. Kisusi, contends that the inquiry

proceedings were time-barred and that therefore the Industrial Court had no

jurisdiction to entertain the matter. Both learned counsel, with great industry,

have traced the juncunain the labour laws as regards the time frame within

which to lodge a complaint for purposes of an inquiry. In particular Mr. Kisusi has

referred extensively to case law on the subject, especially the decisions of the

court of Appeal in zambia Tanzania road Services Ltd V.J.K. Pallangyo (1982)

TLR 24 and Jumuiya ya Wafanyakazi Tanzania V. Kiwanda cha Uchapishaji cha

taifa (Kiuta) and Another, appeals which originated from awards which were

made by one of the members of this high Court Bench when he was the

Chairman of the erstwhile Permanent Labour Tribunal and its successor, the

Industrial Court of Tanzania. The decisions in the above cases influenced

Government policy as a result of which The Permanent Labour Tribunal

(Amendment) Act, No. 3 of 1990 was enacted. Among the changes that were

bought about by the amendment was delititon and replacement of section 9A

which widened the scope of matters to be inquired ino from matters relating to

trade disputes to include matters which did not constitute a trade dispute. But

nowhere does it appear that a specific time-frame within which to lodge trade

disputes has been fixed by law. As Mr. Kisusi has pointed out, the Court of

appeal held in the Pallangyo case that such a lacuna was contrary to public

policy; but its decision on the matters= wa modified in the Kiuta case which does

not lay down fast rules relating to limitation of time.

516
Mr. Kisusi submits further that since the Permanent Labour Tribunal has now

been transformed into an Industrial Court, litigation before it being in the nature of

civil proceedings, where there is no fixed time limit, such civil proceedings

become amenable to the Law of Limitation Act, 1971. Of course this will be a

strong gound if the Industrial Court is not an administrative tribunal like its

predecessor was. In this connection he has referred us to section 3(1) of the

Inerpretation of Laws and General Clauses Act, 1972 (Cap.1) which defines the

ord “court” to mean any court in Tanganyika of competent jurisdiction. We are of

the firm view that indeed the Industrial Court of Tanzania is a “court” of

competent exclusive jurisdiction. This view is founded on the changes in the law

whereby the Permanent Labour Tribunal was abolished and in its place the

Industria Court was established with power to enforce its decision and mete out

punishment in respect of offences involving contempt of court. In these

circumstances we are satisfied, and we hold, that the applicants had to comply

with the law of Limitation Act, 1971 by bringing their litigation before the Industrial

Court within six years as per paragraph 7 of the First Schedule to the Law of

Limitation Act, 1971. This is so because their litigation is based on contract. In

the result we hold that the trade dispute which has culminated in these

proceedings was time-barred when it reached the Industrial Court. There was

therefore nothing before the Industrial court to inquire into.

The question then boils down to the vires of that Court, namely that it had no

jurisdiction to inquire into a nothing, as it were. We would thus allow application

on this point alone so that an order of certiorari would lie as prayer. Hence and in

517
consequence thereof, the decision of the Minister is quashed. Since the award of

the Industrial Court is itself based on the void decision of the Minister, and since

that Court acted without jurisdiction, its decision is likewise quashed.

Application for the order of certiorari is allowed with costs to the application.

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: Mwakasendo. J.A., Makawe. J.A. and Kisanga, J.A.)

CIVIL APPEAL NO. 10 OF 1982

BETWEEN

D.R.KAIJAGERRRRRRRRR APPELLANT

518
AND

ESSO STANDARD TANZANIA LIMITED RRRRRRR.RESPONDENT

(Appeal from a judgment and Decree of the

High Court of Tanzania at Dar es Salaam)

(Babati, Ag. J.) dated 20th day of March,

JUDGEMENT OF THE COURT

MAKAME, J.A.:

The appellant in this appeal was employed as a clerk by the respondent

company. In July 1980 he was summarily dismissed from his employment.

Because he was dissatisfied he appealed to the Conciliation Board of Temeke

District in accordance with the Security of Employment Act 1964. The Board was

of the view that the dismissal was unjustified so it accordingly ordered the

appellant’s re-instatement. In turn the respondent company referred the matter to

the Minister for Labour. On 8th January 1981 the Commissioner for Labour,

acting under his delegated powers, reversed the decision of the Conciliation

board. The appellant filed a suit in the High court seeking a declaration that his

dismissal by the respondent company was invalid so he was still in their

employment. His contention was that in his adtion the Minister for Labour had

offended the principles of natural justice because the appellant was denied the

opportunity of submitting his memorandum in reply to that by the respondent

company.

In the Written Statement of Defence the respondent company conteded that the

appellant had been properly dismissed and that the High Court had no

519
jurisdiction to try the suit, by virtue of section 28 of the Security of employment

Act. They further contended, successfully pursued the preliminary point and the

suit was thrown out on that score. The appellant has now come to this court and

is represented by Mr. Lakha, Learned Advocate is in the high Court, Mr. Uzanda

appered for the respondent company before us.

We think we should set out in full section 28 of the Security of Employment Act. It

provides.

“28 (1) No suit or other civil proceeding (other than proceedings to enforce a

decision of the Minister or entertained in any civil court with regard to the

summary dismissal or proposed summary dismissal, or a deduction by way of a

disciplinary penalty from the wages, of an employee.

(2) In this section, “civil proceeding” includes a cross suit or counterclaim, any set

off and any civil proceeding under Part X1 of the Employment Ordinance”.

The Learned trial judge expressed the view that the above –quoted section

implied that the Minister’s decision cannot be questioned in a ‘suit’ like the one

filed by the appellant. The only recourse open was to proceed by way of certiorari

and Mandamus. We wish first to say, as we clearly said in Civil Appeal No. 15 of

1981, PATMAN GARMENTS INDUSTRIES LIMITED v. TANZANIA

MANUFACTURIES LIMITED, wherein an act by the Minister for Lands was

questioned in a court of law, that the party dissatisfied need not necessarly

520
proceed by way certiorari. He can file an ordinary civil suit as in the instant case,

with respect therefore, the learned trial judge was in error in holding a contrary

view. We wish to add that, in any event, the learned judge’s view cannot be right

because proceedings in an application for certiorari would also be a civil

proceeding and so also excluded under section 28 if his argument were right.

We now wish to turn to the interpretation of Section 28 of the security of

Employment Act about the extent to which the jurisdiction of courts is ousted.

The substantive merits of a ministerial decision under the Act cannot be gone

into in a court of law. This is the import of both Section 27 and 28. Among the

things that can be examined is whether the rules of natural justice were

observed, which would in turn determine whether there was a valid decision, if

you like a real decisions at all.

In the instant matter the appellant complained, and is still complaining that the

respondent did not follow the procedure set out under section 43 provides:.

“ the parvies to a reference to the Minister shall be entitled to submit meranda in

support of their respective oases but shall not be entitled to appear in person or

by advocate or other representative before him”.

In the plain the appellant contended that there was injustice and the respondent

has denied this. The learned trial judge appeared to agree that there might have

been injustice but his view was that the only way to bring up the matter was by

521
way of certiorari and mandarms which as we have already pointed out, is not the

case. There was a triable issue which the high Court should have tried

notwithstanding the way this particular matter was brought up.

In the result we are of the view that the appeal must succeed and we accordingly

allow it with costs. We order that the high Court should proceed with the hearing

of the suit; Parties and/or the trial court may with to decided whether or not any

other person or persons should be joined.

DATED at DAR ES SALAAM this 4th day of November, 1982.

(Y.M.M. MWAKASENDO)

JUSTICE OF APPEAL

(L.M. MAKAME)

JUSTICE OF APPEAL

R.H. KISANGA

JUSTICE OF APPEAL

I certify that this is a true copy of the original.

(l.A A kyando)

IN THE COURT OF APPEAL OF TANZANIA

522
AT MWANZA

CORAM: OMAR, J.A. HNZAVAS, J.A.., And MFALILA, J.A)

CIVIL APPEAL NO. 15 OF 1994

BETWEEN

LAUSA ALFAN SALUM & 106 OTHERS RRRRRRAPPELLANTS

AND

MINISTER FOR LANDS HOUSING

AND URVAN DEVELOPMENT RESPONDENTS

NATIONAL HOUSING COPRORATION

(Appeal from the decision and ruling of

the High Court of Tanzania at Mwanza)

(Chipeta, J.)

dated the 11th day of January, 1994

in

Miscellaneous Civil Application No. 12 of 1992

JUDGEMENT OF THE COURT

MFALILA, J.A:

In the High Court of Tanzania at Mwanza, the appellants Lausa Salum and

others whose number varies from 106, 116 to 206 filed an application praying for

523
Orders of certiorari against the two respondents namely the Minister for Lands,

Housing and Urban Development and the National Housing Corporation that.

(a) the entire order of the Minister G. 41/92 be quashed.

(b) The action of the National Housing Corporation increasing the rent for its

premises occupied by the applicants be quashed.

The background to these proceedings may be easily stated. The second

respondent, the National Housing Corporation, was established by an Act of

Parliament, the National Housing Corporation Act No. 2/90. Section 11 of the Act

provided that the rents chargeable for the premises belongi to the corporation

shall be sat by the Corporation subject to the provisions of the Rent Restriction

Act 1984. The Rent Restriction Act also created the housing Tribunals and their

appellate body, the Housing appeals Tribunal. Section 2 (1) (b) of the rent

Restriction Act empowers the minister responsible for Lands, Housing and Urban

Development, by order published in the Gazette with the approval of the National

Assembly signified by a resolution, to exempt any premises or class of premises

from all or any of the provisions of the Rent Restriction Act. Using these powers,

the Minister responsible for Lands, Housing and Urban Development

promulgated Government Notice No. 41 of 1992 exempting all premises in

respect of which a specified parastatal body is the lawful landlord from all the

provisions of the Rent restriction Act relating to the restriction on the amount of

rent that may be charged or collected by the specified parastatal body as the

landlord from any tenant occupying any part of these premises. The second

respondent was among the specified parastatals. Following the publication of

524
G.N. 41/92, the second respondent increased rents for all its premises including

those occupied by the appellants. The appellants objected very strongly to these

rent increases which they called unilateral. When their protests were rejected by

the second respondents, they filed an application in the high Court challenging

the validity of both the G.N. 41/92 and the increases of rent based on it. The

appellants challenged the validity of G.N. 41/92 on two grounds.

The first ground was that G.N. 41/92 IS ULTRA VIRES THE PARENT Act

because it exempts specified parastatals instead of a class of premises as

provided by section 2 (1) © of the parent or enabling Act.

The second ground was that G.N. 41/92 is unconstitutions for the following

reasons. Firstly that it is discriminatory. That it discriminates the appellants by

depriving them of the protection accorded by the Rent Restriction Act against

arbitrary eviction; distress for rent and the right to statutoty tenancy which is

otherwise available to tenants generally and that this discrimination is contrary to

article 13 (2) of the Constitution of the united Republic. Secondly that it bars the

appellants from litigating their rights as tenants in the housing Tribunal and that

this is contrary to article 13 (3) of the Constitution. Thirdly, that it provides no

safeguards against abuse of power by the second respondent.

The appellants challenged the validity of the rent increases by the second

respondent on the basis that since the order under which they were made is

invalid, such increase were in contravention of section 11 of the National Housing

Corporation Act 1990.

525
The high court dismissed the application, the learned judge holding that G.N.

41/92 was both intra vires and constitutional. He held that since contrary to the

appellantss’ assertions, G.H. 41/92 exempts a class of premises i.e. those owned

by the specified parastatal bodies, the orde is in accord not inconsistent with the

parent Act and that therefore it is within its amit. Regarding the constitutionality of

G.N. 4192, the learned judge held firstly that it cames within the saving

PROVISONS OF Article 30 (2) of the Constitution because it is not drafted in

such wide terms as to net untargeted groups. Secondly that it is not

discriminatory in that it affects all the tenants of the specified parastatals. Thirdly

that it does not shut out the tenants of the specified parastatals from legal

recourse in that ordinary Courts are available to the tenants to enforce their

contractual rights against their landlords. Fourthly that although the G.N. Should

have contained a provision limiting the power of the parastatals to increase rent

to economic rent, he held that the absence of such a clause was not fatal as the

Courts can still intervene where unconscionable increases in rent are made.

Accordingly he dismissed the application with costs.

Against this decision the appellants filad this appeal. Mr. Matata learned

Counsel, on behalf of the appellants filed five grounds of appeal. In the first

ground he complained that the learned judge having found that the 1st

respondent’s order (G.N. 41/92) has no legal safeguards against the abuse of

power, he ought to have found that the order is bad in law and unconstitutional

526
because it violates Article 13 of the constitution of the United Republic of

Tanzania. At the hearing of this appeal, Mr. Matata exapanded on this complaint

submitting that G.N. 41/92 is unconstitutional because first if allows the second

respondent to act arbitrarily and secondly it violates the second respondent to act

arbitrarily and secondly it violates the concept of equality before the law enshrine

in Article 13 of the constitution. He added that the Rent Restriction Act avails all

the tenants two basic rights. The protection against increase of rent except on

the formula given by the Act and statutory tenancy at the end of the existing term.

G.N. 41/92 removes both these rights, and that since the 1st respondents’s order

ousts the jurisdiction of the Housing Tribunal, it leaves the second respondent

free to treat its tenants in any way it likes as it did in the rent increases in this

case and against such arbitrary actions, the tenants are left defenceless. The

effect of the order Mr. Matata went on, is to create two categories of tenants,

those with full protection under the Rent Restriction

On behalf of the 1st respondent, Mr. Magoma the learned senior state Attorney,

supprted the High court judgement on the validity of G.N. 41/92 Stating that it

was made within the four corners of the law empowering the 1st respondent to

make it and that it does not in any way violate the constitution of the United

Republic.

In support of his contention that Courts can and should intervene in respect of

legislation without proper safeguards against arbitrary action, Mr. Matata cited

the decision of the High Court of Uganda in SHAH. V. ATTORNEY GENERAL

527
(1970) E.A. 523. It is true that the learned judge found that G.N. 41/92 had no

safeguards against arbitrary increases of rent, but he did not think this was

necessarily fata to the validity or constitutionality of the order because in his view

tenants of the second respondent could pursue and enforce their legal rights in

the ordinary Courts. In the Shah Case quoted above, the Court felt obliged to

intervene because the legislation in question i.e. The Local Administration

(amendment) Act 1961 violated the provisions of Article 8 of the Uganda

Constitution in that:

(a) It had the effect of depriving a party of property without compensation.

(b) It had the effect of depriving an aggrieved party of “protection the law” in

that it shut out litigation and prevented him from ventilating his grievances

in Court.

(c) It gave power to the Minister responsible to nullify even court judgements

including the High court.

We therefore ask ourselves whether G.N. 41/92 has any of these or similar

effect. We do not think so. Like the learned judge we think it would have been

fairer if the order had provisions safeguarding the interests of the tenants against

the possibility of arbitrary increases of rent by their powerful landlord, but we are

satisfied that despite being freed from the controls in the Rent Restriction Act by

G.N. 41/92, the second respondent does not have and the order did not intend to

grant it arbitrary powers to increase rent. We are satisfied that the second

respondent country wide can seek redress in the ordinary Courts. In the

circumstances, it is not correct to say that G.N. 41/92 created two categories of

528
tenants, one enjoying legal protection the other without such legal protection. The

correct position is that G.N. 41/92 removed the appellants and all tenants of the

second respondent from the protection of the housing Tribunals under the Rent

Restriction Act and as it were transferred them to the ordinary Courts. We

therefore agree with the learned judge that GN. 41/92 does not violate the

concept of equality enshrined in Articles 13 of the Constitution. We wish also to

affirm the principle in the decision of this Court in Juthalal Velji Ltd. Vs. THB

Estates Co. Ltd. Civil Appeal No. 11 of 1985 relied on by the learned judge and

which is on all fours with the present case to be good law. Mr. Matata sought to

distinguish Velji’s case from the present one of the basis that in Velji’s case the

rent was based on the economic value of the building based on the valuation

report which was produced in the High Court whereas in the present case there

was no such valuation. Secondly that the exemption in Velji Case was specific to

a specific building. We do not think these distinctions are valid. The presence or

absence of a valuation. Report would be relevant when considering the

reasonableness the can charge such rent secondly. Limiting the exemption to

specific buildings is in accord with the legistlation which directs that the

exemption may be in respect of any premises or class of premises. In Velji’s

case, they sought to exempt “Tecco Godowns” in Mikocheni Industrial Area as a

class of premises.

In the second ground, the appellants complained that had the trial judge properly

interpreted the order GN. 41/92 vis-à-vis the enabling provision (Section 2 (1) (b)

529
of the Rent Restriction Act 1984, he would have found that the order in

exempting a group of Parastatals instead of a class of premises, it was ultra vires

the enabling provisions. In support of this ground, Mr. Matata submitted that GN.

4192 is ultra vires because the relevant enabling section refers to a class of

premises whereas the exemption in the Order is based on the ownership of those

premises. We think with respect that this submission is based either on a

misreading or partial reading of the section and the order . Section 2 (1) of the

Rent Restriction Act 1984 provideds

2 – (1). This Act shall apply to all dwelling houses and commercial premises

other than;

(a) RRRRRR.

(b) Any premises or class of premises which the Minister may with the

approval of the National Assembly signified by a resolution, by order

published in the Gazzette, exempt from all or any of the provisions of this

Act.

And paragraph 3 of the exemption order reads in part:

4. All premises in respect of which a specified parastatal is the lawful

Reading these two provisions together, we do not see how paragraph 3 of the

order can be considered to be outside the enabling provisions in section 2 (1)

(b) of the Act. Under section 2 (1) (2) the minister responsible for lands,

Housing and Urban Development can exempt two groups of premises from

530
the provisions of the Rent Restriction Act. He can exempt any premises or

class of premises. The premises exempted by GN. 41/92 are covered under

the description any, whereas those under G.N. 23/83 are covered under the

description class of premises. We therefore do not see why Mr. Matata would

want to limit the Minister’s power of exemption to a class of premises when

the first part of the section widens the power to any premises. Since sall

premises must have owners, it is strange to suggest that an order would be

rendered invalid simply by identifying their owner. For these reasons we are

satisfied that GN. 41/92 is not ultra vires the enabling section of the Act. This

ground of appeal therefore fails.

In ground 3 the appellants averred that had the trial judge properly directed

himself on the rules of staturory interpretation, he would have found that

section 2 (1) (b) of Act 17/84 does not confer upon the 1st respondent

parliamentary power to amend a substantive provision of a statute (section 11

of the National Housing Corporation Act No. 2 / 1990). In support of this

ground, Mr. Matata contended that the effect of the order by the 1st

respondent was to amend section 11 of the National Housing Corporation Act

which he was not empowered to do. In reply intend to amend section 11 or

any other provision of the National Housing Corporation Act.

We agree with Mr. Matata that the 1st respondent, the Minister for Lands

Housing and Urban Development has no power to amend an Act of

531
Parliament. But he has never purported to undertake such a task.. But he has

never purported to undertake such a task. In promulgating the order in GN.

41/92, the Minister was only doing what he is allowed and empowered to do

by the Rent Restriction Act-namely to exempt the premises owned by the

specified parastatals from the provisions law or order does not mean

repealing or amending that particular law or Order. It simply means that that

particular law will not operate on a specified individual, body of individuals or

Organization. Hence you may have the Minster of Finance being empowered

to exempt certain organizations from the operations of say the Sales Tax Act.

This does not mean that the Finance Minister is empowered to amend the

Sales Tax Act. The contention in this ground therefore fails.

We have already held that the misapplication of the Rent Restriction Act to

the premises owned by the second respondent, did not leave the appellants

helpless without any remedy against the second respondent’s arbitrary or

capricious actions. We have already held that the applellants or other tenants

of the second respondent can still go to the ordinary Courts to enforce their

rights under the tenancy agreements or to challenge the rents fixed by the

second respondents under its new acquired authority. In the circumstances,

we do not agree with Mr. Matata that the appellants’ right to go to the ordinary

Courts is illusory as we do not see any reason which can prevent them from

going to the ordinary Courts to enforce their rights as . The contention in

ground 4 similarly fails.

532
Lastly, in ground 5 the appellants contended that had the learned judge

properly directed himself on the second respondent’s decision to raise rent,

he would have found that the second respondent acted arbitrarily and

contrary to the principles of natural justice. In support of this contention Mr.

Matata cited a Privy Council decision in an appeal from Canada, Minister of

National Revenue vs’ Wrights Canadian Ropes Ltd. 1947 AC 109. We think

the decision in this case would have been relevant in the consideration of the

present appeal if the appellants had been challenging the reasonableness of

the new rents not their validity. They would then in the process have provided

the necessary data or information to support their challenge. Once it is held,

as we have done, that the exemption Order by the Minister was perfectly valid

as it was lawfully made under validly delegated authority, the validity of the

new rents imposed by their landlord under the newly acquired authority

cannot be successfully challenged. In the circumstances we agree with Mr.

Magoma that the ony and best course for the appellants to take would have

been to proceed by way of challenging their landlord to justify the new rates.

The learned trial judge did not rigtly attempt to resolve the question whether

the new rates are reasonable because he had no data or other material to

assist in such an undertaking. Accordingly we hold that this head of complaint

also fails.

533
All the grounds or appeal having failed, this appeal fails and we dismiss it in

its entirety with costs.

DATED AT DAR ES SALAAM THIS 9TH DAY OF NOVEMBER, 1994.

Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER

935, (1985) AC 374, (1984) 3 wlr 1174, HL.

Dyson r A.G (19 (1) 1 KB 410, CA

Ells Earl Grey (1833) 6 Sim 214, 58 ER 574.

Factortare Ltd v Secretay of State for Transport (1989) 2 ALL AR 692, (1990)

2 ac 35, (1989) 2 WLR 997, HL.

Factortame Ltd Secretary of State for Transport (No 2) Case C-213/89 (1991)

1 AA ER

70, (1991) 1 AC 603, (1990) 3 WLR 818, CJEC and HL.

Feather v R (1865) 6 B & S 275, 122 ER 1191.

Harper v Secretary of State for the Home Dept *1954) Times, 18 December,

and (1955) All ER 331, (1955) 3 All ER 140, (1985) AC 97, (1984)3 WLR 705,

PC.

Merricls v HEATHCOAT –Axiory (1955) 2 AA ER 453, (1955 Ch 567. (1968)

AC 997, (1968) 2 WLR 924, HL

Rv HM Treasury, exp sundley (1985) 1 All ER 589,(1985) QB 657, (1985) 2

WLR 576, CA.

534
R V Income Tax Special Purposes Courses *1888) 2 I QBD 313, (1886 – 90_

All Er Rep 1139, CA.

R v Income Tax Special Purposes Course o p Dr Bamado’s Hence National

incorporated Ass (1920) 1 KB 26: rvsd (1920) I KB 468, CA” Affd (1921) 2 CA

1, HL

R v Kendnton and Chelsea Royal London BC, Hammed (1989) 1 All ER

1202, (1989) QB 518, (1989) 2 WLR 90, ca.

R v Licensing Authority, exp Smith Kline French Laboratories Ltd (No 2)

1989) 2 All BR 113. (1990) 1 QB 574, (1989) 2 WLR 378, CA.

R v Powell (1841)1 QB 352, 113 ER 1166.

R v Secretay of state for the Home Dept, exp Herage (1986) 23 All Er 497,

(1976) QB 761, 117 ER 646.

Racel Constructions Ltd, Re (1980) 2 All ER 634, (1981) AC 374, (1980) 3

WLR 181, HL.

Releigh Goscher (1898) 1 Ch 73.

h. Thompsor, Re (1889) 5 TLR 565

Tobin v R (1864( 16 CBNS 310, 143 BR 1148

Town Investments Ltd v Dept of the Environment (1977) 1 All ER 813, (1978)

AC 359, (1977) 2 WLR 450, HL.

Appeal and Cross appeal

Kenneth Baker, the Secretary of State for the Home Department on 1 May

1991, appealed with the leave of the Court of Appeal from the decision of that

535
 court (1992) 1 QB 270) delivered on 29 November 1991 allowing the appeal

of the applicant. M. from the decision of Simon Brown 1 (1992) 4 All ER 97)

delivered on 26 July 1991 dismissing M’s Motion dated 14 May 1991 to

commit, inter alios, the Home Office and the Secretary of State for contempt

of court in (1) causing.

Jurisdiction over the Crown or a government department or officer of the acting

as such in respect of contempt of court since orders made against Crown and

undertaking given on behalf of the crown were not enforceable against the Crown

by any process of compulsion. On appeal, the Court of Appeal held that the

Home office could not be held guilty of contempt because the Crown as an entity

and government departments were not subject to the contempt jurisdiction of the

courts, but ministers of the Crown and civil servants were subject to the

jurisdiction and the Secretary of State was guilty of serious comtempt in

withholding action toreturn the applicant from Zaire. The Secretary of State

appealed.

Held – Having regard to the unqualified language of s 31 of the supreme Court

Act 1981 the court had jurisdiction under s 31 to make coercive orders, such as

injunctions, in judicial review proceedings against ministers of the Crown acting

in their official capacity and under RSC Ord 53, r 3 (10)b the court could grant

interim injunctions against ministers. Purthemore, if a minister acted in disregard

of an injuction made against him in his official capacity the court had jurisdiction

to make a finding of contempt would demonstrate that a government department

536
had interfered with the administration of justice and an order for costs could be

made to underline the significance of the if would then be for parliament to

deyermine the consequences of that finding. On the facts. The judge in

chambers hearing the application for judicial review made on behalf of the

applicant had had jurisdiction to grant an injunction against the Secretarial of

State requiring him to procure the return of the applicant to the jurisdiction of the

court, notwithstanding that the order was made before he had given the applicant

leave to apply for judicial review. The Secretary of State, albeit in his official

capacity, had properly bveen found to be in contempt in failing to comply with

that order, in failing to keep the judge informed of the situation and in failing to

protect the applicant’s position pending an application to the court to discharge

the order. The appeal would therefore be dismissed (see p 540 d, p 541 a to e, p

564 f g, p 567 a to h and p 569 b, post).

Dictum of Lord Bridge in Factortane Ltd v Secretary of State for Transport (1989)

2 All ER 692 at 708 doubted.

Decision of the Court of Appeal (1992) All ER 97 affirmed

Notes

For contempt by disobedlence of a court order or breach of an undertaking, see 9

Halsbury’s Laws (4th edn) paras 69, 75, and for cases on the subject see 16

Digest (Reissue) 81 –84, 796 – 815.

For the Supreme Court Act 1981, s 31. see 11 Halsbury’s starvce (4th edn( 1991

reisse) 991.

537
Cases referred to in opinions

Adams v Naylor (1946) 2 All ER 241, (1946) AC 191, (1991) 2 wlr 994. HL.

Or permitting M to be removed from the United Kingdom to Zaire in breach of an

undertaking given by counsel for the Home Office to Garland on 1 May 1991 tha

he would not be so removed pending an adjourned application for leave to move

for judicial review of the decision of the Secretary of state refusing him leave to

enter the United Kingdom on the ground of political sylum and/ or (2) failing to

procure the return of M on 2 or 3 May 1991 in breach of the order of Garland I

made on 2 May reguiding such return. The Court of Appeal found Mr Baker, as

Secretary of State, was in contempt of court by reason of his personal decision

on 2 May 1991 to cancel the return flight of M to the United Kingdom. M cross-

appealed. The facts are set out in the opinion of Lord Wolf.

Stephen Richards, Richard Gondorn and staurs Gauhpole (instructed by the

Treasury Solicitor) for the Home Secretary.

Sydney Kentridge QC, Richard Scanndly and Authon Bradley (instructed by

Winstanley-Burgess) for M.

Their Lordships took time for consideration.

22 July 1993. The following opinions were delivered.

LORD KEITH OF KINKEL. My Lords, I have had the advantage of reading in

draft the speech to be delivered by my noble and learned friend Lord Woolf. I

agree with it, and for the reasons he gives would dismiss the appeal, while

substituting the Secretary of State for Home Affairs for Mr Baker Personally as

the subject of the finding of concempt.

538
LORD TEMPLEMAN. Parliament makes the law, the executive carry the law into

effect and the judiciary enforce the law. The expression the Crown has two

meanings, namely the monench and the executive. In the seventeenth century

Parliament established its supremacy over the Crown as Monarch, over the

executive and over the judiary. Parliamentary supremacy over the Crown as

Monarch stems from the fact that the monarch must accept the advice of a Prime

Minister who is supported by a majority of Parliament. Parliamentary supremacy

over the Crown as executive stems from the fact that Parliamentary supremacy

over the Crown as executive stems from the fact that Parliament maintains in

office the Prime minister, who appoints the ministers in charge of the executive.

Parliamentary supremacy over the judiciary is only exercisable by stature. The

judiciary enforce the law against individuals, against institutions and against the

executive. The judges cannot enforce the law against the Crown as monarch

because the Crown as monarch can do no wrong bus judges enforce the law

against the Crown as executive and against the individuals who from time to time

represent the Crown. A hisgant complaining of a breach of the law by the

executive can sue the Crown as executive brining his action against the minister

who is responsible for the department of state involved, in the present case the

Secretary of State for Home Affairs. To enforce the law the courts have power to

grant remedies including injunctions against a minister in his official capacity. If

the minister has personally broken the law, the litigant can sue the minister, in

539
this case Mr. Kenneth Baker, in his personal capacity, the courts are amed with

corcive powers exercisable in proceedings for contempt of court.

In the present case counsel for the Secretary of State argued that the judge

could not enforce the law by injunction or contempt proceedings against the

minister in his official capacity. Counsel also argued that in his personal capacity

Mr. Baker the Secretary of State for Home Affairs had not been guilty of

contempt.

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 nessisty, a proposition which would reverse the result of the

Civil War. For the reasons given by my noble and learned frind Lord Woulf and

on principle, I am satisfied that injunctions and contempt proceedings may be

brought against the minister in his official capacity and that in the present case

the Home office for which the Secretary of State was in contempt. I am also

satisfied that Mr. Baker was through oursamong in the without capacity, on

advice which he was entitled to accept and under a minister to the law. In these

circumstances I do not consider that Mr. Baker personally was guilty of contempt.

I would therefore dismiss this appeal substituting the Secretary of State for Home

Affairs as being the person against whom the finding of contempt was made.

540
LORD GRIFEITHS. My Lords, I have had the advantage of reading in draft the

speech to be delivered by my noble and learned friend Lord Woolf. I agree with it,

and for the reasons he gives would dismiss the appeal, while substituting the

Secretary of State for Home Affairs for Mr Baker personally as the subject of the

finding of contempt.

LORD DROWNS WILKINSON. My Lords, for the reasons given in the speech of

my noble and learned friend Lord Woolf I agree that this appeal should be

dismissed, while substituting the Secretary of State for Home Affairs for Mr.

Baker personally as the subject of the finding contempt.

LORD WOOLF. My Lords, this appeal,gives rise to issues of constitutional

importance. It is an appeal from a decision of the Court of Appeal (1992) 4 All ER

97, (1992) 1 QB 270) which by a majority (Lord Donaldson MR and Nolan 1 (Mc

Cowan L) dissenting) resersed a judgment of Simon Brown (1992) $ All ER 97)

and decided that Mr Kenneth Baker, when acting as Home Secretary, had been

guilty of contempt of court.

This was the first time that a minister of the Crown had been found to be in

contempt by a court. The finding of contempt was made for not complying with a

injunction granted by Garland) ordering M, who had made a claim for asyhim,

which wa rejected by the Home Office, to be returned to this country. The Court

of Appeal did not regard the contempt a reuiring any punishment of Mr. Baker

other than that be pay the costs of the appeal and in so far as they related to the

541
proceedings brought against him, in the court below. The Court of Appeal did not

allow the appeal of M against the dismissal of his application that other

respondents, including the Home Office, should also be found guilty of contempt

Mr Kentridge QC in his argument on behalf of M, made in clear that he would

only seek to rely on a cross – appeal against the decision as to the Home Office

if, countrary to his primary contention, the decidion of the majority of the Court of

Appeal was wrong in relating to the responsibility of Mr. Baker.

Mr Richards submits on behalf of the Home Office and on behalf of Mr Baker that

neither the Crown in general, nor a department of state nor a minister of the

Crown, acting in his capacity as such, are amenable to proceedings in contempt.

It is a necessary part of that submission that the courts also have no power to

grant injunctions directed to such bodies and that the order which was made by

Garland), which it was held by Simon Brown I as well as the Court of Appeal that

Mr. Baker had contravened, was made without jurisdiction.

When advancing these submissions Mr. Richards stressed that it was no part of

his case that the Crown or uninsless are above the law or that ministers are able

to rely on their office so as to evade liability for wrongdoing. He accepted that if a

minister acted in disregard of the law as declared by the courts, or otherwise was

engaged in wrongdoing he would be acting outside his authority as a minister

and so would expose himself to a personal liability for his wrongdoing.

The fact that these issue have only now arisen for decision by the courts is

confirmation that in ordinary circumstances ministers of the Crown and

government departments invariably scrupulously observe decisions o the coarts.

542
Because of this, it is normally unnecessary for the courts to make an executory

order against a minister or a government department since they will comply with

any declaratory judgment made by the courts and pending the decision of the

courts will not take any precipitous action. Mr Richards submits that the

circumstances which have given rise to the present proceedings are highly

unusual and that the fact that Garland I flt it necessary to grant an injunction was

irrespective of the answeres to the legal issues, this is not a case in which it was

appropriate to make a finding of contempt, since there was no question of Mr

Baker seeking to act in defiance of the court, nor was there any intention to

interfere with or impede the administration of justice. Support for these

submissions is provided by twqo comments of Lord Donaldson of Lymington MR

in his judgment in the Court of Appeal, the first being made at the outset of his

judgment when he said (1992) 4 All FR 97 at 121, (1992) 1 QB 270 at 284): This

case is remarkable for the chapter of accidents, mistakes and misunderstandings

which has occurred.

The second comment is part of the explanation which Lord Donaldson Mr gave

for concluding that, in the highly unusual circumstances of this case, mr Baker’s

responsibility for contempt fell at the lower and of the scale. The second

comment is that Mr Baker has disavowed any intention to act in defiance of an

order of the court or to hold himself above the law, a disavowal which I fully

accept’ (see (1992) 4 All ER 97 at 139, (1992) 1 QB 270 at 306).

The sequence of events which led to the majority of the Court of Appeal coming

to the conclusion that Mr. Baker was guilty of contempt are set out fully in the

543
judgments of Simon Brown I and Lord Donaldson MR in the Court of Appeal.

Although I will therefore summaries then as shortly as possible, I am afraid it is

still accessory, especially in view of Mr Richards suggestion that it was unjust to

find Mr Baker guilty of contempt in set out the events in some detail.

The sequence of events.

M is a citizen of Zaire. He arrived in the United Kingdom on 23 september 1990

and immediately claimed asylum. The claim was based on an allegation that he

was a refugee within the meaning of the Convention relating to the Status of

Refugees (Ceneva, 28 July 1951’ TS 39 (1954): Crown 9171). He was

interviewed and he was informed that the Home Secretary was minded to refuse

his claim to asylum by a letter of 16 November 1990 which explained the basis

upon which this preliminary decision had been reached.

M was then re0interviwed on 2 December 1990 and given an opportunity to

comment upon the letter of 16 November 1990 and given an opportunity to

comment upon the letter of 16 November 1990. His position was then

reconsidered by the Asylum Division of the Home Office and on 17 December

1990 a letter was written to M setting out that his further comments having been

considered, it was still not considered that he qualified for asylum under the

terms of the convention.

The contents of the two letters make it reasonably clear that the decision to

refuse asylum was due to the Home Office not accepting Ms accounts of events

which resulted in his seeking asylum. This account involved him claiming that he

was a treachers to take strike action which resulted in demonstrations by

544
students at his school; that he was arrested for having organized the strike and

detained for three days during which time he was whipped and beaten and that a

guard, who he believed had been bribed by his father had then smuggled him

into an aircraft bound for Lagos where he acquired a false Nigerian passport and

a ticket for a flight to London.

An application was then made for leave to apply for judicial review and as a

result the directions which had been made for his removal by the Home Office,

which had been set for 17 January 1991, were cancelled. The basis of the

application for leave was that the Secretary of State had failed to consider certain

facts. On 20 March 1991 the application was refused by Kennedy J. The removal

directions were then scheduled for 28 March 1991. M then promptly applied to

renew his application for leave before the Court of Appeal, but his solicitors failed

to file the appropriate documents and so the application was not listed.

On 11 April 1991 M was examined by a doctor from the Medical Foundation for

the Care of Victims of Torture and he prepared a report dated 12 April 1991

which set out his opinion as follows:

I found nothing in his history or its presentation to suggest that it was in any way

unreliable. His description of prison conditions has been confirmed innumerable

times by other people who have experiences them. The scars he bears are

entirely compatible with the causes he ascribes to them. He is suffering a degree

of dealness and spinal trouble quite likely to have arisen from his mistreatment.

Psychologically he describes symptoms very likely to arise from the experiences

he described. He shows some evidence of depression and his continued

545
detention can only aggravane these symptoms and he could easily become a

scrious suicide risk.

Regrettably the report was not sent to the Home Office until 30 April 1991, the

day before the latest time which had been set for M’s removal, which was 630

pm on 1 May 1991. The Court of Appeal heard M’s application by interrupting its

normal work for that day during the afternoon of 1 May and at about 455 pm Lord

Donaldson MR, sitting with Nicholls and Farguharson LI. Delivered a five page

judgment giving the Court of Appeal’s reasons for unanimously refusing the

application. Unbeknown to the Court of Appeal, arrangements were already

being made for M to change his solicitors from those who had represented him

up to that time including in the Court of Appeal, on the basis that his case was

not being fully deployed by his existing legal advisors. Outside the Court of

Appeal the new solicitors for M and the counsel then instructed informed counsel

for the Home Office and his instructing solicitor Mr David Palmer) that a fresh

application for leave to apply for judicial review was to be made on M’s behalf to

Garland I the judge in Chambers, as it was outside normal court hours and there

was no nominated Crown Office list judge available. It was indicated that the

fresh grounds relied upon would include the availability of the medical report and

the unreasonable reliance by the Home Office upon Ms failure to apply for

asylum in Nigeria.

At about 525 pm on 1 May 1991 the hearing before Garland I commenced. At

that stage it was appreciated that M’s aircraft was about to take off from

Heathrow at 6 or 6.30 pm. Having heard part of the argument, Garland I not

546
unnaturally took the view that the judge in chambers was not the proper tribunal

to give leave to move for judicial review and that the obvious course was to

adjourn the matter so that an application could be made the following day to

nominated judge. When it became apparent that Garland I wished M’s departure

to be post Mr. Palmer telephoned the Home Office that the judge had expressed

the wish that M should not be removed from the United Kingdom and asked him

to do his best to insure the removal did not take place. This was at approximately

5.50 pm.

In the absence of Mr. Palner a misunderstanding took place between counsel

who was representing the Home Office and Garland J. Garland I understood that

he had been given an undertaking y counsel on behalf of the Home Office that M

would not be removed pending the making of an application the foloowing

morning. On that bais \garland I refrained from granting leave and adjourned the

application. However, counsel for the Home Office did not inted to give on

undertaking and did not believe that he had done so. However, the order which

was made in relation to the hearing recited the fact that.

The application for leave to move for judicial review be adjourned on the

undertaking by counsel for the Home Office Rthat the applicant would not be

removed from the United Kingdom to Zaire.

Unfortunately, through no one’s fault, the steps which Mr Palner had set in

motion to prevent M’s removal were unsuccessful and at 630 pm the aircraft

carrying M commenced its departure for Zaire via Paris. The aircraft landed in

547
Paris at 7. 45 pm. The plane on which M was to continue his flight was not due to

leave until 1020 pm.

Prior to Ms departure from Paris, numerous discussions took place between

officials of the Home Office, a member of Parliament who was intervening on M’s

behalf, his new solicitor and subsequently Mr. Peter Loyd, the Parliamentary

Under Secretary of State to the Home Office (the Minister). The conversation

which took place revealed a considerable confusions as to what was the precise

situation. The Home Office officials and the minister were under the impression

that the judge, who edentity they did not know. Wanted M to be returned. The

view was taken that it would not be appropriate to intervene in Paris, but it was

decided that the judge should be informed about the situation. The Home Office

officials were not able to contact a presentative of the Treasury Solicitor and in

fact although subsequently, the identify of the judge was ascertained together

with his telephone number, no one contacted him on behalf of the Home Office.

No action was taken by the Home Office to prevent M leaving Paris and at 10.40

pm the aircraft carrying M and his escort departed from Paris. It is accepted that

at that time the minister was ignorant of any undertaking as opposed to an

informal request being given by the Home Office until it was too late to have

secured M’s return from Paris.

At about 11.20 pm M.s solicitor telephoned Garland I at his home and informed

him what had happened and that, on M’s case, he would be exposed to a grave

risk of persecution on his arrival in Zaire. Garland I then made a mandatory order

on the telephone requiting the Home Secretary to return M to this country. The

548
solicitor later at about 12.30 am visited Garland I at his home where the judge

wrote out to order in the following terms.

Whereas at 1755 hours on Wednesday 1st May 1991, on an application to the

Judge in Chambrs for leave to move for judicial review of the determination that

(M) was not entitled to the status of refugee, Counsel for the Home Office Mr

Richard Gordoa) on instruction undertook to the Court that (M) would not be

removed from the United Kingdom to Zaire pending an adjourned application for

leave to move for judicial review so soon as possible on Thursday 2nd May 1991:

And whereas the said undertaking was embodied in the order of the Court

adjouming the said application; and whereas it appears to the Court that the said

undertaking has veen breached by the removal of (M); Upon hearing Mr. David

burgess, Solicitor, on behalf of the said M. It is ordered that the secretary of State

for the Home Department by himself, his servants or agents do forthwith procure

that

1. The said (M) be returned with the jurisdiction of this court,

and further that:-

2. Pending the return of the said (M) he be kept in the care of

the servants or agents of Her Majesty’s Government in

Zaire until further order therein.

3. that the Secretary of State be at liberty to apply to vary or

discharge this order at 10.30 am on Thursday 2nd May

1991R

549
Having obtained the order the solicitor first informed the Home office of its

contents on the telephone and subsequently faxed a copy to the chief

immigration officer. At about 1.40 am the minister’s private secretary, who was by

then aware of the terms of the order and had spoken to a representative of the

Treasury Solicitor, contacted the resident derk of the Foreign and commonwealth

Office and asked him to contact Kinshasha immediately and arrange for M to be

met on arrival by officials from the British Embassy, who should look after him

and help him to return provided that he wanted to do so. However, it was not

possible to contact the British Embassy until 7 am the following morning. In the

meantime the minister had been informed of what had been arranged.

When the plane carrying M arrived at the airport at Kinshasa he was not met and

was presented by his escort to the Zaire immigration authorities. Shortly

afterwards he was seen by an official of the embassy. He told the official that he

wished to return to Lonon and he was booked on a flight due to leave Kinshasa

at 9 pm that evening. His travel documents were taken for a return visa to be

endossed on them.

No application was made to Garland I at 10.30 am on 3 May in accordance with

the terms of the order, through a message was left with his clerk that the Home

Office whished to make an application and would be in touch again as soon as

possible.

During the morning discussions took place between the minister and his officials

but he concluded that the case raised issues of such importance that the

instructions of the Secretary of State, Mr Baker should be sought. A meeting with

550
Mr Baker was arranged for 4 pm that afternoon which having regard to his other

commitments. Was the earliest opportunity. At the beginning of the meeting Mr

Baker knew nothing about the case. What happened at the meeting is set out in

a note which was taken by Mr Baker’s private secretary for which public interest

immunity was exceptionally waived. The meeing was attended by the minister an

assistant under secretary of the Immigration Department a member of the Legal

Department of the Home Office and the respective private secretaries. The note

describes what happened as follows:

The Home Secretary discussed the case of (M) with Mr Lioyd, Mr Osborne and

Ms Spencer this afternoon. 2 Having read the facts of the case, as set out in your

briefing note of 2 May, the Home Secretary asked the grounds on which officials

proposed that the court order should be opposed Mr. Osborne explained that Mr

Justice Garland had exceeded his powers in making an Order that (M) should be

returned directly from Zaire: it was a Treasury solicitors were expected to confirm

later this afternoon that the Home Office should appeal against the Order and

that (M) would require a visa or some form of entry clearance to re-enter Britain,

it would be extremely difficult to remove him if, as expected, we won the case. Mr

Lloyd was confident that the reasons for (M’s) removal still held good. The

political difficult was that the Home Office could be accused of having been

However, the undertaking had been that we would do our best” to delay (Ms)

removal, and the chronology of events clearly demonstrated that we had fulfilled

this undertaking. 3 The Home Secretary fully supported the action taken and

551
subject to Treasury Solicitors (sic) advice, agreed in the present circumstances

that (M) should not be returned to Britain.

In an affidavit prepared for the hearing in the Court of Appeal, Mr Baker

described how he came to his decision as follows:

The two factors operated on my mind in particular – (1) the assurance which I

received from Mr Lioyd (Peter Lioyd MP, Parliamentary Under Secretary of State

at the Home Office, the minister responsible for immigration matters that the

underlying asylum decision in relation to (M) was the right one; and (2) legal

advice (subsequently confirmed by Treasury Counsel) was to the effect that the

Order of Mr Justice Garland was made without jurisdiction and that an application

to set aside his Order should be made at the first opportunity R I have to say that

it was never suggested to me that my decision constituted contempt of Court and

my whole understanding was that in the circumstances it was perfectly in order

for the Home Office to apply to set aside the Order of Mr Justice Garland

Provided such application was prompt I am sure that I never had it in

contemplation to act in defiance of an Order of the Court, much less to hold

myself above the law. If I am wrong in any of these conclusions or if the legal

advice on which I acted was wrong, then it is a matter of sincere regret to me and

I unreservedly apologize to the Court’s.

The note is probably in error in para 3 in referring to the Treasury Solicitors’

advice. What was probably imended was to refer to the advice of Treasury

552
counsel with whem a conference took place at 5:15 pm. At the conference

counsel advised that as the liberty to apply granted by the judge (although spent)

itself indicated, the Home Office should have an opportunity to challenge the

order made late the might before but that the Home Office should take that

opportunity at the earliest practicable time; in the meantime the Home Office

might reasonably hold its hand. As a result the booking for M’s return flight was

cancelled and arrangements were made for an application to be made to Garland

I at 9 am on the following meaning. 3 May. In the meantime M was seen at

Kinsbasha airport by officials and informed that there was no turgent need for

him to attend court proceedings in the United Kingdom. He was asked to remain

in touch with the embassy. He wrote down two addresses, which he gave to the

officials as to where he could be contacted. Nothing was done to protect him in

the meantime.

In accordance with the arrangements which had been made, on 3 May the

application was made to Garland I to discharge the order that he had made

though that application was opposed, Garland I came to the conclusion that he

had had no jurisdiction to make the order, but indicated that he had made the

order.

On the basis not that I was granting a mandatory injunction against the Crown,

which clearly I could not do, on authority, but that I was seeking to compel

obedience an undertaking freely given to the court and which he had given. He

did eventually contact his solicitors from Nigeria and, although arrangements

553
were made for his return from Nigeria, by the time those arrangements were

made contact had been lost again and his whereabouts are now unknown.

On 7 May 1991 proceedings were commenced on behalf of M seeking to have

the Home Office fined and Mr Peter Lioyd MP committed to prison or fined for

contempt of court in failing to comply with the order made on 2 May. The notice

of motion was subsequently amended, in include a number of other claims

including a claim against Mr. Baker. At the commencement of the hearing before

Simon Brown I on 9 July, the only changes which wee maintained wre those

against the Home Office and Mr Baker Simon Brown I came to the conclusion

that he had no power to make a finding that either the Home Office or the Home

secrtary were guilty of contempt. He indicarted that, if he had had such power he

would have found the Home Office in contempt in failing to prevent M being put

on the plane in Paris when they had had notice that an undertaking had been

given to the court and of its terms. With regard to Mr Baker, Simon Brown I said (

1992) 4 All ER 97 at 120):

Not without considerable hesitation, I have finally come to accept Mr Laws’s

submission that jurisdicition aprt, it would be wrung to find the Secretary of State

in contempt in the particular cincumstances of this case. It is just not proved

beyond reasonable doubt that he had a reasonable opportunity to decide to seek

and then in fact w seek, discharge prior to 9 :00 am on 3 May. It is not sufficient

for the applicant to establish merely that in an idial world things would have been

ordered differently. A respondent to contempt proceedings is enttled to a

554
reasonably benevolent construction of his actions and decisions following receipt

of a mandatory order made apparerly without jurisdiction not least when,. As

here, thse actions and decisions are being guided at every step by responsible

legal advisers.

Before Somon brown I Mr Laws who was appearing for the Home Office and Mr.

Baker, but who had not appeared before Garland I when the alleged undertaking

had been givben, did not feel it proper to dispute that the undertaking had in fact

been given. As to this aspect of the case in the Court of Apeal Lord Donalkson

MR said (1992) 4 All ER 97 at 132 – 133, (1992) 1 QB 270 at 298):

Whilst I understand and respect Mr Laws’s attitude I do not think that I would be

right for the court to shut its eyes to the wholly exceptional circumstances of this

case. In any ordinary circumstances if a party, or solicitors or counsel on his

behalf, so act as to convey to the conduct the firm conviction that an undertaking

is being given, that party will be bound and it will be no answer that he did not

think that he was giving it or that he was misunderstood. Here, however, the

circumstances were extraordinary and the pressures of time overwhelming. It

was a situation in which misunderstanding was waiting to happen. If, as I think, it

would not be right to regard the Home office or the Home Secretary as being

bound by an undertaking at a time when all concerned left court at the conclusion

of the hearing vefore Garland I this position could not be altered by Mr Burgess

M’s solicitor informing Mr George the chief immigration Officer that an

undertaking had been given. I do not, therefore, think that any question of

555
contempt arises in this context this is very far from saying that the Home Office

can escape serious criticism. On any view the judge was informed that the Home

Office would seek to prevent M leaving the United Kingodm and I should have

thought that it was inaplicity in this that, if this proved impossible any other

practicable means of preventing his reaching Zaire would be adopted. This was

why Mr Palmer left the court in order to telephone to the Home Office before the

proceedings had been conducted. Given greater efficiency and determination. I

have no doubt that M could probably have been prevented from leaving

Heathrow and certainly he could have been returned to the United Kingdom from

Paris. He was not unwilling and he was in the custody of the Home office or its

agents throughout the whole peiod ending with his arrival in Azire. (Lord

Donakisons emphasis).

There is no reason for disagreeing with those criticisms. What does appear to me

to be clear from the events which occurred on 1 and 2 May 1991 is that, if there

is no power in a court to make an order to prevent the Home Office moving a

person in any circumstances, this could be a highly unsatistactory situation. The

facts of this case illinstrate that circumstances can occur where it is in the

interests both of a person who is subject to the pwers of government and of the

governments itself that the courts should be in a position to make an orer which

clearly sets out either that should or what should not be done by the government.

If the had been no confisuion in this case as to the extent of the court’s power, I

have little doubt that Mr Baker would not find himself in his present position

where he has been found guilty of contempt.

556
Lord Donalsdson MR described Mr Baker’s contempt as a very serious one

because hde had taken

A deliberate decision which has the effect of ensuring that an order of the court,

to whomsoever addr3ssed, is not complied with particularly when non-

compliance could have had irremediable and even fatal consequences for M. for

whose protection the order was made (see (1992) 4 All ER 97 at 138, (1992) 1

QB 270 at 303.)

He however added (1992) 4 All ER 97 at 138 – 139, (1992) 1 !QB 270 at 305 –

306).

Any contempt of court is a matter of the utmost seriousness. But the culpability of

the contemnor can vary anormously. In the highly unsusual circumstances of this

case, Mr Baker;s culpability falls at the lower end of the scale for the following

reasons. (1) He had no advance knowledge of M’s case or of the court’s order

before 4 pm on 2 May. (2( He had very little time in which to decide upon his

course of action. (3) He was advised, wrongly, that the court’s order was made

without jurisdiction and may have got the impression that it could be treated as a

mulity. (4) whether or not his advisers intended it, I think that he was left with the

impression that he could properly delay action in compliance with the order until

after the judge had decided whether or not to rescind it and that he cancellation

of the return flight soyld be viewed as part of a decision by Mr Baker to postpone

557
action rather than to decline to take it. (5) His decision was expressly made

subject to any advice which might be given by Treasury counsel. (6) He has

disavowed any intention to act in defiance of an order of the court or to hold

himself above the law, a disavowal which I fully accept. (7) He has expressed

sincre regret if he acted wrongly, as undoubtedly he did.

Nolan LJ regarded Mr Baker as being in contempt because he

Interfered with the administration of justice by completing the removal from the

court’s jurisdiction and protection of a litigant who was brining proceedings

against him. (See (1992) 4 All Er 97 at 146, (1992) 1 QB 270 at 314).

Injunctions and the Crown.

Mr Kentridge placed at the forefront of his argument the issue as to whether the

courts have jurisdiction to make coencive orders against the Crown or ministers

of the Crown. It was appropriate for him to do so for at least two reasons. First,

and more importantly, because whether the courts have or do not reasons. First,

and more impoirtantly, because whether the courts have or do not have such a

conrcive jurisdiction would be a strong indicator as to whether the courts had the

jurisdicition to make a finding of contempt. If there were no power to make

conercive orders, then the need to rely on the law of contempt for the purpose of

enforcidng the orders would rarely arise. The second reason is that, on the facts

of this case, the issue is highly significant in determining the satus of the order

which Garland I made and which it is alleged Mr Baker breached. If that order

558
was made without jurisdiction, then Mr Richards would rely on this in order was

made without then Mr Richards would rely on this in support of his contention

that Mr Baker should not have bveen found guilty of contempt. As Mr Richards

admitted, the issue is of constitutional importance since it goies to the heart of

the relationship between the executive and the courts is the relationship based,

as he submits, on trust and cooperation of ultimately on coercion?

Mr Richards submits that the answer to this questions is provided by the

diecision of Factoriane Ltd v Secretary of Staae for Transport (1989) 2 ALL ER

692, (1990_) 2 AC 85 and in particular by the reasoning of Lord Bridge of Hawich

who made the only speech in that case. This speech was highly influential in

cansing Simon Bwn) I and Mc Cowan LJ to take a different view from the majority

of the Court of Appeal as to the ourcome of the present proceedings. That case

was not, however, grimarly concerned with the question as to whether injunctive

relief was available against the Crown or its officers. It involved the allegedly

discriminatory effect of the requirement of British ownership and the other

requirements ofr Pc II of the Merchant Shipping Act 19988 and the associated

regulations, which prevented fishing vessels which were owned by Spanish

narionals or managed in Spain being registered under the legislation. This it was

said contravened Community law. It was an issue of difficulty which had

accordingly been refrred to the Eujropean Court under art 177 of EEC Treaty.

The question then arson as to whether the applicants were enttled to incerm

relief pending the outcome of the reference. The primary contention of the

559
applicants was that it was in the circumstances a requirement of community law

that interim relief should be available. This was an additional point as to which

Community law was unclear so your Lordship House decided that that issue

should also snot be determined until after a reference under art 177. This meant

that pending the outcome of the second reference your Lordships had to

determine whether interm relef should be granted under domestic law.

In deciding whether under domestic law interim relef should be granted Lord

Bridge initially examined the position without reference to the involvement of

minister. He conclude that no relief could be granted since English law

unassisted by Community how treated legislation as fully effective until it was set

aside. Lord bridge described the position in these words (19989) 2 All ER 692 at

703, (1990) 2 AC 85 at 142 – 143):

But an order granting the applicants the interm relief which they seek will only

serve their pupose if it declares that which Parliament had enacted to be twhe

law from 1 December 1988, and to take effect in relation to vessels previously

registerd under the Merchant Shipping Act) 1894 from 31 March 1989, not to be

the law until some uncertain future date. Effective relief can onbly be given if it

reguires the Secretay of Stage to treat the applicants vessels as entitled to

registration under Pt II of the 1988 Act in direct contravention of its provisions.

Any such order, unlike any from of order for interim relief known to the law, would

irreversibly determine in the applicants favour for a period of some two years

rights which are necessarily uncertain unti the preliminary ruling of the European

560
Court has been given . If the applicants fail to establish the rights they claim

before the European Court, the effect of the interim relief granted would be to

have conferred on them rights directly contrary to Parliament’s sovereign will and

correspondingly to have deprived British fishing vessels, as defined by

Parliament,, of the injoyment of a substqnfial proportion of the United Kingdom

quota of stocks of fish protected by the common fisheris policy. I am clearly of the

opinion that, as a matter of English law, the court has no power to make an order

which has these consequences.

Pending the outcome of the second of the second reference this conclusion was

in itself sufficient to determine the applicants appeal. However, Lord Bridge went

on to give a second reason for his decision which is derectly relevant to the

present appeal. The second reasons is that injunctive relef is not available

against the Crown or an officer of the Crown, when acting as such in judicial

review proceedings. When determining this aspect of the appeal the House had

the advantage of full argument on behalf of the Crown from junior counsel Mr

Laws (see (1990) 2 AC 85 at 119 – 126), as to why relief was not available, but

judging by the report the House did not bave the venefit of the very extensive

argument in favour of the contrary view based on the historical development of

proceedins against the Crown on which Mr Keatridge relied at the hearing of this

appeal. In saying this I make no criticism whatsoever of counsel for the

applicants to Factorame. It is clear that what for the Crown was a question of the

tgreatest importance was for the applicants sideshow. The Crown was anxious to

561
have reconsidered the dicta in two cases which indicated that in judicial review

proceedings injunctive relief could be granted against officers of the Crown. The

first case was Rv Secretary of State for the Home Dept , exp Hervage (1986) 3

All ER 209, (1987) QB 872. The second was R v Licensing Authority exp smith

Mine French Laboratords Ltd (No 2) (1989) 2 All ER 113 (1990) 1 QB 574, where

the majority of the Court of Appeal approved the judgement of Hodgson I in

Hergage. In both those cases the Crown had been unable to appeal as it had

been successful and so the Factortance case proved an ideal opportunity in

which to vindicate its view that the dicta were wrong. Since the decision in

Factanme there has also been the important development that the European

Court has determined the second reference against the Crown (see Factortanse

Ltd v Serectray of State for Transport.(No 2) Case C- 213/89 (1991) 1 All ER 70

(1991) 1 AC 603) so that the unhappy situation now exists that while a citizen is

entitled to obtain injunctive relief (including interim relief) against the Crown or an

offices of the Crown to protect his interest under community law he cannot do so

in respect of his other interests which may be just as important.

Before exzmining the second reason that Lord Bridge gave for his conclusion I

should point out that I was a party to the judgment of the majority in the Smith

rtine case,. In my djudgment in that case I indicated that injunctive relief was

available in judicial reviews proceedings not only aingainst on officer of the

Crown but also against the Crown although in they dinction between our Crown

and an officer of the crown real no personal

agrRRRRRRRRRRRRRRRRR..the greatest importance. My judgment

562
in the earlier case may have coused some confusion in Factortane by obscuring

the important fact that, as was the position prior to the introduction of judicial

review, which prerogative orders are made regularly against ministers in their

official capacity they are never made against the Crown.

Lord Bridge in determining the second issue acknowledged the importance of the

relevant history in determining this issue and it is necessary for me to set out my

understanding of that history.

In support of their respective submissions as to the correct answer to this issue,

Rr Richards and Mr Kentridge relef on principles which had been reatedly

reterated down the centuries since medieval times, The principles on which Mr

Richards founded his argument are that the King can do no wrong and that the

king cannot be sued in his own courts. Mr Kentridge on the other hand relied on

the equally historic principle which is intimately linked with the name of professor

Dicey that

When we speak of the “rule of law” as a characterist of our cournty , we mean not

only that with us no man is above the law, but (what is a different thing) that here

every man, whatever be his rank or condition, is subject to the ordinary law of the

realm and amenable to the jurisdiction of the ordinary trials. In England the idea

of legal equality, or the universal subjection of all classes to one law administered

by the ordinary courts, has been pushed to its utmost limit. With us every official,

563
from Prime Minister down to a constable or a collector of taxes, is under the

same responsibility for every act done without legal justification as any other

citizen. The reports abound with cases in which official have been brought before

the courts, and made, in their personal capacity, liable to punishment, or to the

payment of damages, for acts done in their official character but in excess of their

lawful authority. A colonial governor, a secretary of state, a military officer, and all

subordinates, though carrying out the commondas of their official superior, are as

responsible for any act which the law does not authorize as is any private and

unofficial person. (See introduction to the sound of the law of the Constitution

(10th edn. 1965) pp 193 – 194).

In the course of argument we were referred to numerous authorities which

supported these principles. Howver, in the present proceedings what is in dispute

is not the validity of the principles but the manner in which in practice they were

recondled by the courts,. The fact that the Sovereign could do no wrong did not

mean that a servant of the Crown could do no wrong. Prior to the Crown

Proceedings Act 1947 it was long established that what would now be described

as private law rights could be established against the Crown either by brining a

petition of right or in the case of on activion in tort, when a petition of right was

not available (tobin R (1864) 16 CBNS 310, 143 ER 1148). By brining an action

for damages against the servant of the Crown responsible for the rtion his own

name. Such an action was possible since. As was pointed out by Cockhun c in

Feather v R *1865) 6 B & S 257 at 296, 122 ER 1191 at 1205:

564
As the Sovereign cannot authorize wrong to be done, the authority of the Crown

would afford no defense to an action brought for an illegal act committed by an

officer of the Crown.

However, difficulties did exist in relation to an action against an officer or servant

of the Crown in an action for a tort. The officer or servant had to be identified.

There could be no vicarious liability placed personally on an officer for the acts of

other officers or servants of the Crown since the employer’ was the Crown. Only

a servant who committed or authorized the commission of the wrong could be

responsible.

The position was accurately described by Rome I in raligh v Gaschen (1898) I Ch

73 at 79. In that case the plaintiffs commenced an action against the Lords

Commissioners of the Atmiralty with the object of establishing that they were not

entitled to eater or acquire by way of compulsory purchase land belonging to the

plaintiffs and in order obtain damages for trespass and an injunction to restrain

any further trespass. It was held that while the plaintifss could not sue any of the

defendants as an official body they cold sue the defendants in their official

capacity romer I decided that it was misconceived and that the action did not lie.

In the cause of his judgment he said (at 79 – 80):

. So, if any of the defendants ha themselves ordered or directed the alleged

trespass now complained of by the plaintiffs, and it was in consequence of such

565
order or direction that the alleged rrespass took place, or if any of the defendants

threatened to order or direct further trespass, then they could be sued. But in this

case they could be sued not because, but in despite of the fact that they

occupied official positions or acted as officials. In other words – the plaintiffs, in

respect of the matters they are now complaining of, could sue any of the

defendants individually for trespasses committed or treatened by them, but they

could not sue the defendants officially or as an official body. The question

R.narrows itself down to thirst. Is the present action one against the defendants

as an official body, or is it an action against them as individuals?.

Having come to the conclusion that the action was against the defendants in their

official capacity, romer) considered whether he should give leave to amend. In

explaining his decision not to give leave to amend, he stated (at 81) that to have

done so would have amounted to changing one action into another of a

substantially different character. He added that this was illustrated by the fact

that:

An action against the defendants in their official capacity, supposing it to lie,

would differ in most material respects from an action against them as individuals,

as woll be seen when consideration is paid to questions of discovery, and to the

form of any imertocutory injunction or final judgment that could be obtained by

the plaintiffs, and as to how and against whom such injunction or judgment could

be enforced.

566
When dismissiong the action Romer I was careful no do so sithout prejudice no

any claim the plaintiffs might have against any of the defendants individually, in

respect of any trespass committed or threatened (at 82). In identifying the nature

of the action, he did not confine himself merely to looking at the title examined

the substance of the claim as it was disclosed in the pleadings.

The authorities on which the plaintiffs relied in Relaigh v Goschen for seeking an

injunction against the Lords Commissioners of the Admiralty included Ellis v Eal

Grey (1833) 6 Sim 214, 58 ER 574. The reasoning of Shadwell V-C for granting

the relief clained in that case is not entirely satisfactory. However, the argument

of counsel expressed the position correctly when he concluded his submission in

support of the bill,. Which included a claim for an order restraining the Lonls of

the Treasury from making certain payments in the official capacity, by saying of

the Lords of the Treasury, that they-

Are not made parties to the bill as public functionaries, but as mere stakeholders

of the fund; and, in that character there can be no objection to their being

restrained from making the payment as they have hitherto done, until the rights

of the opposing claimants have been determined (See 6 Sim 214 at 222, 58 ER

574 at 577)

The Vice Chancellor presumably accepted this argument since he described the

lords of the Treasury as being mere ministerial conduct pipes for payment to the

parties entitled and overruled the claim of demureer.

567
Raleigh v Goschen was applied in Hutton v Secretary of State ofr Wer (1926) 43

TLR 106 by Tomlio I. It is interesting to note that in latter case the Artorney

General’s submission, which was accepted by judge made it clear that for the

alleged breach of statutory duty the only remedy was by petition of right unless

the existing Secretary of State had acted wroughfully, and then he could be sued

personally but no as Secretary of State.

The position so far as dvil wrongs are concerned, prior to the 1947 Act, can

summariesed, therefore, by saying that as long as the plaintiffs sued the actual

wrongdoer or the person who ordered the wrongdning he could bring an action

against officials personally, in particular as to torts committed bny them and they

were not able to hid behind the immunity of the Crown. This the position even

though at the time they committed the alleged tort they were acting in their official

capacity. In those proceedings an injunction, including, if appropriate, an

interlocutory injunction, could be granted. The problem which existed in seeking

a remedy against the Crown was not confined to injunctions. It applied to any

form of proceedings and where proceedings were possbilbe by suing the

vwrondoer personally then in injunction would be available in the same

circumstances as other remedies. If such a position required reconciling with the

historic mixim as to the Crown doing no wrong, then this could be achieved by an

approach, which Mr Richards endorsed in the course of argnment by saying that

as the Crown could do no wrong, the crown could not be considered to have

authorized the doing of wrong, so the tortsor was not acting with the authority of

568
the Crown. (In this summary 1 put on one side the position with regard to a claim

for immunity on the basis of act of state. This is not relevant for present

purposes.).

The difficult which a plainfiff might have in identifying the appropriate servant of

the Crown who was the tortfeasor in practice was overcome by the Crown

nominating the individual responsible for the damage and the lack of resources

of the defendant did not cause problems since the Treasury would make an

extranet payment of compensation if it was a case where, but for Crown

immunity, the Crown would be vicariously liable. In such proceedings, if it was

appropriate for an injunction to be granted, there was no reason why this should

not be dose. Respect of any trespass committed or threatened (at 82). In

identifying the nature of the action, he did not confine himself merely to looking at

the title he examined the substance of the claim as it was disclosed in the

pleadings

The authorities on which the plaintiffs relled in raleigh v Goschen for seeking an

injunction against the Lords Commissioners of the Admiralty included ells v Earl

Grey *1933) 6 Sim 214, 58 ER 574. The reasoning of Shadwel V-C for granting

the relief claimed in that case is not entirely satisfactory. However, the argument

of counsel expressed the position correctly when he conduced his submission in

support of the bill which included a claim for an order restraining the lonsls of the

Treasury from making certain payments in their official capacity, by saying of the

lords of the Treasury that they –

569
Are not made parties to the bill as public functionaries, but as mere stakeholders

of the fund; and, in that character there can be no objection to their being

restrained from making the payment as they have hitherto done, until the rights of

the opposing claimants have been detenlned (See 6 Sim 214 at 22 58 ER 574 at

577).

The Vice Chancellor presumably accepted this argument since he described the

Lords of the Treasury as being mere ministerial conduct 0pipes for payment to

the Parties entitled and overtuled the claim of demuree

Raligh v goschen was applied in Hutton v Secretary of State for War (1926) 43

TLR 106 by Tomlth I. It is interesting to note that in the latter case the Artorney.

General’s submission, which was accepted by the judge made it clear that for the

alleged breach of statutory duty the only remedy was by petition of right unless

the existing secretary of State had acted wrongfully, and then he could he sued

personally but not as Secretay of State.

The position so far as dvil wrongs are concerned, prior to the 1947 Act, can be

summarized, therefore, by saying that as long as the plaintiffs sued the actual

wrongdoer or the person who ordered the wrongning he could bring an action

against officials personally, in particular as to torts committed by them and they

were not able to hid behind the immunity of the Crown. This was the position

even though at the time they committed the alleged tort they were acting in their

official capacity. In those proceedings an injunction, including, if appropriate, an

interlcutory injunction, could be granted. The problem which existed in seeking a

570
remedy against theCrown was not confined to injunctions. It applied to any form

of proceedings and where proceedings were possible by suitng the wrongdoer

personally then an injunction would be available in same circumstances as other

remedies. If such a position required recontiling with the historic maxim as to the

Crown doing no wrong. Then this could be achieved by an approach, which Mr

Richards endorsed in the course of argument, by saying that, as the Crown could

do no wrong, the Crown could not be considered to have authorized the doing of

wrong, so the torfosor was not acting with the authority of the Crown. (In this

summary I put on one side the position with regard to a claim for immunity on the

basis of act of state. This is not relevant for present purposes).

The difficulty which a plaintiff might have in identifying the appropriate servant of

the Crown who was the toreadors in in practice was overcome by the Crown

nominating the individual responsible for the damage and the lack of resources of

the defendant did not cause problems since the Treasury would make an

exgratia payment of compensation if it was a case where, but for immunity, the

Crown would be vicariously liable. In such proceeding , if it was appropriate for

an injunction to be granted, there was no reason why this should not be done.

It was the cridisms in Adams v Naylor (1946) 2 All Er 241, (1946) AC 543, and

the cases which applied those criticisms, of the practice of the Crown nominating

a defendant who might not have been personally guilty of any tort which wee the

catalysics for the changes which wee brought about by the 1947 Act.

571
However, before raring to that Act it is necessary to draw attention to one

additional development in brining proceedings against the Crown. This involved

the grant of declaranty relief against the Crown. In Dyson V A.G (1911) 1 KB 410

it was decided that it was unnecessary to have a cause of action in order to

obtain declaratory relief. This opened the door to proceedings for a declaration

against the Crown, at least where the estate of the Crown was not involved (at

421), without the necessity of proceeding by petition of right.. In such

proccedings there would he no question of obtaining an injunction.

So far as civil proceedings were concerned the position was transformed by the

1947 Act section I enabled the Crown to be sued directly in those situations

where pripor to the Act a claim might have been enforced by petition of right.

Section 2 in general permitted actions to be brought against the Crown in respect

to torts committed by its servants or ages for any breach of its duties which gave

rise to a tortuous liability (including a breach of statutory duty where the breach

created a cause of action). Section 2 did not remove the right to sue the actual

tortfeasor.

Part II of the 1947 Act deals with Jurisdiction and Procedure. Section 17 Provides

for the Minister for the Civil Service to publish a list of authorized government

departments for the puposes of the Act and requires civil proceedings against the

Crown to be instituted against the appropriate authorized government

department oc, if there is no appropriate authorized department or where there is

572
reasonable doubt as to the identity of the appropriate department, against the

Attorney General . An examination of the current list indicates that some of the

authorized departments are in fact the descriptions of the fooficial names of

individuals or collections of individuals who head the department. Thus

proceedings can be brought against a number of different Director Generals and

bodies such as the Customs and Excise Commissioners or the Inland Revenue.

However, theire are other authorized departments which are not linked which the

names of the head of the department, so, to take typical example, the Home

Office and not the Home /Secretary is listed.

Lord Bridge in Flatulence Ltd v Secretary of State of Transport (1989) 2 All ER

692 at 705 – 707, (1990) 2 AC 85 at 146 attaches importance to s 21 of the Act.

Its terms are:

Nature of relief (1) in any civil proceedings by or against the Crown the court

shall subject to the provisions of this Act, have power to make all such orders as

it has power to make in proceedings between subject, and otherwise to give such

appropriate relief as the cause may require: Provided that: (2) where in any

proceedings against the Crown any suc relief is sought as might in proceedings

between subjects 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 thereof make an order declaratory of the rights of the parties; and (b) in

any proceedings against the Crown for the recovery of land or other property the

court shall not make an order for the4 recovery of the land or the delivery of the

573
property, but may in lie thereof make an order declaring that the plaintiff is

entitled as against the Crown to the land or property or to the passions thereof.

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

order against an officer of the Crown if the effect of granting the injunction or

making the order would be to give any relief against the Crown which could not

have been obtained in proceedings against the Crown.

Before considering the provisions not 21 in greater detail, it is convenience to

refer to the relevant provisions of s 23 (2) which limits the scope of Pt II of the

Act, indlucing 21. The terms of that subsection are:

Subject to the provisions of this sction. Any reference in this part of this act to

civil proceedings against the Crown shall be construed as a reference to the

following proceedings only (2) proceedings for the enforcement or vindication of

any right or the obtaining of any relief which, if this Act had not been passed,

might have been enforced or vindicated or obtained by any such proceedings as

are mentioned in Paragrah 2 of Schedule 1 no this Act, (b) proceedings for the

enforce meal or vindication of any right or the obtaining of any relief which, if this

Act had not been passed, might have been enforced or vindicated or obtained by

an action against the Attorney-Gneral, any government department, or any officer

of the Crown as such; and (d) all such proceedings as any person is entitled to

bring against the Crown by virtue of this Act, and the expression civil proceedings

by or against the Crown shall be construed accordingly.

574
Section 23 (2) (2) refers to petitions of right (b) refers, incertalia, to proceedings

for a declaration and (c) refers, inter alia, to proceedings in tort. The language of

s 23 makes it clear that Pt II of the Act does not generally apply to all

proceedings which can take place in the High Court. In particular it does not

apply to the proceedings, which at that time would have been bought for

prerogative orders. If there is any doubt about this, that doubt is removed by the

general interpretation provisons of the Act contained in s 38, s 38(2) providing.

In this Act, except in so far as the context otherwise requires or it is otherwise

expressly provided, the following expressions have the meanings hereby

respectively assigned to them, that is to say “Civil proceedings” includes

proceedings in the High Court or the courty court for the recovery of fines or

penalties, but does not include proceedings on the Crown side of the (Queen’s)

Bench DivisionR”

Proceedings for the pregorative orders were brought on the Crown side

Returning to s 21, what is clear is that in relation to proceedings to which provisor

(a) and (b) of s 21 (1) apply, no injunction can be granted against the Crown.. In

addition there is the further restriction on granting an injunction against an officer

of the crown under s 21 (2). That subsection is restricted in its application to

striations where the effect of the grant of an injunction or an order against an

officer of the Crown will be to give any relief against the crown which could not

575
have been obtained in proceedings against an officer of the Crown will be to give

any relief against the Crown which could not have been obtained in proceedings

against the Crown prior to the Act. Applying those words literally, their effect is

reasonably obvious. Whee, prior to 1947, an injunction could be obtained

against an officer of the Crown because he had personally committed or

authorized a tort, an injunction could still be granted on precisely the same basis

as previously since as already explained, to grant an injunction could not affect

the Crown because of the assumption that the Crown could do no wrong. The

proceedings would, however, have to be grought against the tortfeasor

personally in the same manner as they would have been brought prior to the

1947 Act., if on the other hand, the officer was being sued in a representative

capcity, whther as an authorized government department, for example, one of

the named Directors General or as Attorney General, no injunction could be

granted because in such situation the effect would be to give relief against the

crown. The position would be the same in those situations where proceedings

would previously have been brought by petition of right or for a declaration butr

could now be brought against the authorized department.

There appears to be no reason in principle why, if a state place a duly on a

specified minister or other official which creates a cause of action an action

cannot not be brought for breach of statutory duty claiming damages or for an

injunction, in the limited circumstances where injunctive relef would be

appropriate, against the specified minister personally by any person entitled to

the benefit of the cause of action. If, on the other hand, the luty is placed on the

576
Corwn in general, then s 21 (2) would appear to prevent inqunctive relief being

granted, but as Professor Sir William Wade QC has pointed our (Injunction relief

against the Crown and ministers (1991) 107 LQR) there are likely to be few

situations when there will he statutory duties which place a duty on the Crown in

general instead of on a named minister. In broad terms therefore saying that it is

only in those stuations where prior to the Act no injunctive relief could be

obtained that s 21 prevents an injunction being granted can summarize the effect

of the Act. In other words it restricts the effect of the procedural reforms that in

implemented so that they did not extend the power of the courts to grant

injunction. This is the least that cars be expected from legislation intended to

make it easier for proceedings to be brought against the Crown.

It is now necessary refer to Merricks v Heathcoat – Amory (1955) 2 All Er 453,

(1955) Ch 567, a case which requires careful consideration because of the

importance attached to it, as we shall see later, by Lord Bridge in Factortane.

In Merricks the plaintiff sought a mandatory injunction against the Minister of

Agriculature, Fisheries and Food both in his personal cacity and in his capacity

as minister a corporation sole constituted by stature. The injunction required the

minister to withdraw the draft of a statutory scheme regulating the marketing of

potatoes which had been laid by the minister before parliament for approval

when acting in his capacity as minister and also restraining him from seeking

approval of the scheme by Parliament. An application was made on vehalf of the

minister in stricke out the proceedings as being misconceived. It was argued by

577
the law officers on behalf of the minister that, in so far as lie proceedings were

brought against the minister in his official capacity, there was no jurisdiction to

grant an injunction against a minister and in so far as the proceedings were

brough against the minister in his personal capacity he could not and did not

purport to lay the scheme in his personal capacity. It was also submitted that the

minister woed no duty to the plaintiff and that, if he acted in a personal capacity

he acted as a member of Parliament, which involved parliamentary privilege. No

surprisingly Upjohn I acced to the application. Even today in an application for

judicial neview it could be difficult to persuade a court to intervene on similar

facts to those in the Mericsk case, though in view of the decision in R v HM

Treasury exp smeadly (1985) 1 All ER 589, (1985) QB 657 I do not go so far as

to say it would be impossible to do so. However, the Merrricks case vas broutht

by what today can be described as pricate law proceedings and the plainfiff, most

certainly in those proceedings was not entitled to seek any and in particular

injunctive relief,. He was seeking to enforce any legal or equitable eight to which

he was entitled. He would as the law had so far developed lack the necessary

standing to bring the proceedings. However, Upjohn I came to the consluion that

the minister from start to fish .. was acting in his capacity as an officer

representing the Crown and went on to say that as this was the position it was

conceded that no injunction could be obtained aaainst him and therefore the

motion failed in limine (see (1955) 2 All ER 453 at 456, (19955) Ch 567 at 575).

He added that be could no see how there could be the three categories of

situation for which the plainfiff argued, the first being when the minister was

578
representing the Crown, the third there he was acting in a purely individual

capacity and the second, which he considered created the difficulty, involving a

person designated in an official capacity but not representing the Crown. As to

the second category Upjohn I said (1955) 2 All ER 453 at 457, (19955) Ch 567 at

575 – 576):

It is possible that there may be special Acts where named persons have special

duties to perform which would not be duties normally fulfilled by them in their

official capacity: but in the ordinary case where the relevant or appropriate

minister is directed to carry out the function or policy of some Act, it seems to me

he is either acting in his capacity as a Minister of the Crown representing the

Crown, or is acting in his personal capacity , usually the former. I find it very

difficults to conceive of a middle classification.

I do not find the scope of this statement clear. If Upjon I was intending to suggest

that it was not possible for a minister to be under a personal liability and subject

to injuctive relief for wrongs committed by him in his official capacity then it is

inconsistent with the authorities ited earlier. The approach indicated by those

authorities was relied on by the plainfiff in Merricks (1955( 2 All ER 453 at 455,

(1955) Ch 567 at 571 who cited in support the list instance decision of Roxburgh

I in Harper v Secretary of State for Home Dept (1954) Times, 18 December

However, that was a case heard ex parte and Upjon I did not in those

579
circumstances attach importance to it. The case went to the court of Appeal (See

(1955) 1 All ER 331, (1955) Ch 238 at 254):

I return at the end of my judgment to the point which I mentioned earlier and on

which I would say one final word viz, the question of the defendant to this action.

I have said that the defendant is the Secretary of State for the Home Department

sued, that is to say by his official little as a Minister of the Crown. It is said by

counsel for the plainfiffs that , since the report of the Boundary Commissioners)

disregarded the rules in the Art of 1949, therefore it is not a report within the

meaning of the Act, and that the Secretary of State has neither the duty to the

House or to anyone else nor the power or authority to take this proposed Order in

Coluncil to Her Majesty. A am not myself satisfied that counsel for the plaintiffs is

not in this respect on the hons of a dilemma. It the whole thing is a nullity and all

he seeks to do is to restrain a particular individual, who happens at the moment

to be the Secretary of State, I am not satisfied that be ought not to sue him in his

personal capacity as for an ordinary wrong – though, in that case, it would not be

clear to me what breach of duty to the plaintiffs he was engaged on committing..

On the other hand, if he does sue him and rightly sues him, in his capacity as

Secretary of State, then I am not satisfied, though I express no final view it, as

we have not heard full argument, that the which, having regard to the terms of

the Crown Proceedings Act, 1947, with lie. Moreover, I am not satisfied, having

regard to s 21 of that Act, that on this alternative the plainfiff could in any even

580
obtain an injunction (see also Merricks v Heatheat . Antory (1955) 2 All ER 453 at

456, (19955) Ch 567 at 574.)

Upjohn I’s approach appears to treat a duty placed upon a named minister as

being placed upon the government as a whole. This could be said to be in accord

with the approach of Lord Diplack and Lord Simon in Town Investments Ltd v

Dept of Environment (1977) 1 All Er 813, *1978) AC 359. However, in that case

your Lordships house was dealing with a very different situation, namely the

consequence of agrant of a lease to a named department of government which

can make the Crown and not the department the tenant. It is not appropriate to

apply that approach to actions in tort, including actions for breach of statutory

duty, since this would mean that the 1947 Act had the surprising effect of treating

the wrongful act of a named minister as being that of the Crown so that the

minister could no longer be sued personally in tort or for injunctive relief, Thus

while the outcome of the Merrides case was correct, the reasoning of Upjohn I

was incorrect, if and in so far, by his remarks which have been cited, he was

seeking to suggest that a minister when acting in his official capacity could not be

sued personally and an injunction granted. In any event his remarks could have

no application to proceedings for the prerogative orders or judicial review which

he was not considering.

I now turn to the historical development of relief against the Crown in prerogative

proceedings. I do so because the historical development of the two sets of

proceedings have been on different lines.

581
Prior to the introduction of judicial review, the principal remedies which were

available were certiorari, mandamus, prohibition and habeas corpus. As we are

primarily concerned with the possible availability of injunction, I will focus on

mandamus and

Prohibition since they are indistinguishable in their effect from final injunctions.

However, it should not have forgotten that, at least indirectly the other remedies

are capable of having a conceive effect. In addition, as in private law

proceedings, since 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 order made against it with which it is

required to comply, such as an order for discovery. Historically the result of

issuing the write of certiorari was to require proceedings of inferior bodies to be

brought before the courts of chancery and common law so that they could be

supervised by those courts and if necessary quashed. Habeas corpus similarly

required the bringing before the courts of the body of the person concerned. As

Re Thampson (1889) 5 TLR 565 vividly makes clear, the non-compliance with

the write of habeas corpus was a matter which at that time a Divisional Court of

the Queen’s Rench Division found no difficulty in treating as contempt by a

caption of one of Her Majesty’s ships.

The prerogative remedies could not be obtained against the Crown directly as

was explained by Lord Deruman Cj in Rv Powell (1841) 1 QB 352 at 361, 113

HR 1166 AT 1170:

582
A both because there would be an incongruity in the Queen commanding herself

to do an act, and also because the disobedience to a write of mandamns is to be

enforced by attachment.

Originally this difficultly could not be avoided by bringing the proceedings against

named ministers of the Crown (R v Londs Coms of the Treasury (1872) LR 7 QB

387). But where a duty was imposed by statute for the benefit of the public upon

a particular minister, so that he was under a duty to perform that duty in his

official capacity, then orders of prohibition and mandamus were granted regularly

against the minister. The proceedings were brought against the minister in his

official name and, according to the title of the proceedings by the Crown. The

little of the proceedings would he R v minsister exp the applicant (as is still the

position today). So that unless the minister was treated as being distinct from the

Crown the title of the proceedings would disclose the incongrulty’ of the Crown

suing the Crown. This did not mean that the minister was treated as acting other

than in his official capacity and the order was made against him in his official

name. In accordance with this practice there have been numerous cases where

prerogative orders. Including orders of prohibition and mandamus. Have been

made against ministers. This was accept by Mr Richards as being the position

prior to the introduction of judicial review and I will merely refer to one authority,

R v costumes and Excise Conus exp Coioke and Stevenson (1970) 1 All ER

1068 (1870) 1 WLR 450 (which was not cited in Factortanse) to illustrate the

position. Lord Parker CJ described the then situation of which he had great

experience. He said (1970) 1 All ER 1068 at 1072, (1970) 1 WLR 450 at 455):

583
Accordingly R one approaches this case on the basis, and I confess for my part

an alarming basis, that the word of the Minister is outweighing the law of the

land. However, having said that, one moves on to the far more difficult question

whether mandamus will lie. It is sometimes said as a general proposition that

mandamus will not lie against the Crown or an officer or servant of the Crown. I

think we all know in this day and age. That of which the most recent is Padfield v

Minister of Agriculture, Fisheries and Food (1968) 1 All ER 694, (1968) AC 997.

in which a mandamus was issued to a minister. Indeed that has always been the

case, as can be seen since as long ago as 1850 in R v Woods, Forests, Land

Revenues, Works and Buildings Corars, ex parte Budge (1850) 15 QB 761 at

768, 117 ER 646 at 649 Sir Frederick Thesiger expressed the proposition in

argument in this form: Whenever a person, whether filling an office under the

Crown or not, has a statutory duty towards another person, a mandamus will lie

to compel him to perform it. “Those words of Sir Prederick Thesiger were in fact

adopted by Sir Alexander Cockburn CJ. There are of course, cases in which it

has been held that a serant or officer of the Cown may have as his only duty a

duty towards the Crown. That, indeed, was the deciding factor in R v Treasury

lords Cons (1872) LR 7 QB 3787’ but equally there are other case of R v Income

Tax Special Purpose Coms (1888) 21 QBD 313, (1886 – 90) All ER Rep 1139,

which show quite clearly that where by statute an officer or servant of the Crown

has also a duty towards a member of the public then provided that member of the

public has 2 sufficient interest, mandamus will lie.

584
It is interesting to note the comment by Lord Parker about mandamus not being

available since similar comments were sometimes made about injunctions in

private law proceedings. Nonetheless, there were limits at that time, as Lord

Parker indicates, to the availability of mandamus,. It was necessary that there

should be a duty which was owed to the applicant as a member of the public the

duty which was required was not a private duty which would give rise to a right to

damages in the event of a breach, but a public duty. In addition the injunctions be

placed on a named minister. As already indicated, in most situation today

statutory duties are conferred on ministers in their own name and not upon the

Crown in general see Professor Sir William Wade QC Injunctive relief against the

Crown and ministers (1991) 107 LQR L. Anrthermore, by the time of the

introduction of the remedy of judicial review the potion had developed so that the

prerogative orders, including prohibition and mandamus, were being granted

regularly against ministers without any investigation of whether a statutory duty,

whih had not been complied with was placed upon the minister or some one else

in the department for which the minister was responsible. Thus the Immigration

Act 1971 places some duties on immigration officers and others on the Home

Secretary, but even where it is the immigration officer who has not complied with

the statutory duty it is the immigration officer who has not complied with the

statutory duty it is the practice to make an order of mandamus against the

minister (an example is provided by R v Secretary of State for the Home Dept.

exp Phanksoplear (1975) 3 All ER 497, (1976) QB 606). As a result of even more

585
recent developments, illustrated by the decision in the Council of Civil Service

Onions v Minister for the Civil Service (1984) 3 All ER 935, (1985) AC 374, a

distinction probably no longe has to be drawn between duties which have

statutory and those which have a prerogative scrurce.

After the introduction of judicial review in 1977 it was therefore not necessary to

draw any distinction between an officer of the Crown acting as such’ and an

officer acting in some other capacity in public law proceedings.

The changes made in procedure introduced in 1977 by RCS Ord 53 for judicial

review were first given statutory authority by primary legislation in s 31 of the

Supreme Court Act 1981. The relevant provisions of that section, which do not

differ materially from the corresponding provisions of Ord 53, are:

Application for judicial review – (1) An application to the High Court for one or

more of the following forms of relief, namely – (a) an order of mandamus,

prohibition or certiorari (b) a declaration or injunction under subsection (2)” or (c)

an injunction under section 30 restraining a person not entitled to do so from

acting in an office to which that section applies, shall be made in accordance with

rules of court by a procedure to be known as an application for judicial review.

(2) A declaration may be made or an injunction granted under this subsection in

any case where an application for judicial review, seeking that relief, has been

made and the High Court considers that, having regard to (a) the nature of the

matters in respect of which relief may be granted by orders of mandamus,

586
prohivition or certiorari (b) the nature of the persons and bodies against whom

relief may be granted by such orders; and (c) all the circumstances of the case, it

would be just and convenient for the declaration to be made or the injunction to

be granted, as the case may be.

(3) No application for judicial review shall be made unless the leave of the High

Court has been obtained in accordance with rules of court; and the court shall not

grant leave to make such an application unless if considers the the applicant has

a sufficient interest in the matter to which the application relates.

(5) On an application for judicial review the High court may award damages

arising from any matter to which the application relates; and (b) the court

is satisfied that, if the claim had been made in an action begun by the

applicant at the time of making his application, he would have been

awarded damagesR

In a 31 the jurisdiction to grant decarations and injunctions is directly linked to

that which aready existed in relation to the prerogative orders. The jurisdiction to

award damages by contrast is restricted to those situations where damages are

recoverable in an action begun by write. It has never been suggested that a

declaration is not available in proceedings against a minister in his official

capacity and if Ord 53 and s 31 apply to a minister in the case of declarations

then, applying ordinary rules of construction, one qould expect the position to be

precisely the same in the case of injunctions. As an examination of the position

prior to the introduction of judicial review indicates, because of the same of the

587
remedies of mandamus and prohibition the availability of injunctions against

ministers would only be of any significnacy in situations where it would be

appropriate to grant interim relief. Even hury the significance of the champe

reduced by the power of the come to grant I may under end

RRRRRRRR.Furthermore, in practice an injunction against a minster would

ve on more than a peremptory declaration because of the limitations on

execution contained in Ord 77, r 1 (2) applies to judicial review and proceedings

against an officer of the Crown as such.

Lord Bridge in Factortance Ltd r Secretay of State for Transport (1989) 2 All ER

692 at 703, (1990) 2 AC 85 at 143 acknowledged the question at issue depends,

first, on the true construction of s 31 – Lord Bridge also accepted that if s 31 were

to be construed in isolation there would be great force in the reasoning that s 31

did enable injunctions to be granted for the first time against ministers of the

Crown in judicial review proceedings (see (1989) 2 All ER 692 at 708, (1990) 2

AC 85 at 149). Why then did Lord Bridge come to the conclusion that an

injunction could not be granted against a minister in proceedings for judicial

review?

A primary couse for Lord Bridges taking this view was that he concluded that it

would be dramatic departure from what was the position prior to the introduction

of judicial review for an injunction to be available against the Crown to be made

only py express legislation. His conclusion was not however, based on as

comprehensive on argument of the history of both civil and prerogative

588
proceedings as was available to your lordships. In particular he did not have an

account of the development which had taken place in the granting of prerogative

orders against ministers, which meant that in practical terms the onoy

consequence of treating s 31 as enabling injunctions to be granted against

ministers acting in their official capacity would be to provide an alternative in

name only to the orders of prohibition and mandamus which were already

available and to allow interim relief other than a stay for the first time.

A secondary cause was his reliance upon Upjohn J’s judgement in Merricks

Heathcoat – Arrory (1955) 2 All ER 453, (1955) Ch 567, a judgment which as

already indicated, should be approached with caution. Lord Bridge was also

influenced by the fact that the new Ord 53 was Introduced following the Law

Commission’s Report on Remedles in Administrative Law (Law Com no 73)

(1976) and that that report drew attention to the problem created by the lack of

jurisdiction to grant interim injunctions against the Crown and recommended that

the problem should be remedied by amending s 21 of the 1947 Act. The report

included a draft of the legislation proposed. This proposal of the Law

Commission was never implemented. Instead the decision was taken following

the Law Commission was never implemented. Instead the decision wa taken

following the Law Commission’s report to proceed by amendment of the rules of

the Supreme Court other than

RRRRRRRRRRRRRRRRRRRRRRRRRRRmeant that s 31 of

589
the 1981 Act should be given a restricted interpretation (1989) 2 All ER 692 at

708 (1990) 2 AC 85 at 149 – 150):

First a 31 (2) and Ord 53, r 1 (1) being identical terms, the subsection and the

paragram must have the same meaning and the paragraph, if it purported to

extend jurisdiction, would have been ultra vires. Second, if Parliament had

intened to conter on the court jurisdiction to grant interim injunctions against the

Crown, it is inconceivable, in the light of the law Commissions recommendation

in para 51 of its report, that this would not have been does in express terms

either in the form of the proposed d 3 (2) of the Law Commissions draft Bill or by

an enaclunent to sosme similar effect. There is no escape from the conclusion

that this recommendation was never intended to be implemented. Third, it is

apparent from s 31 (3) that the relief to which s 31 (2) applies is final, as opposed

to interlocutory, relief by s 31 (2) a declaration may be made or an injunction

granted where an application for judicial review .. has been made ..” But by s 31

(3) no application for judicial review shall be made unless the leave of the High

Court has been obtained in accordance with rules of court R Under the rules

there are two stages in the procedure: first, the grant of leave to apply for judicial

review on ex parte application under Ord 53, r 3 (10) which by its terms enables

appropriate interim relief to be granted by the court at the same time as it grants

leave to apply for judicial review. This point appeared to mea at first blush to be

one of some technicality. But on relfection I am safisfied that it onclusively refutes

the views that s 31(2) was intended to provide a solution to the problem of the

590
lack of jurisdiction to grant interim injunctions against the Crown. The form of final

relief available against the Crown has never presented any problem. A

declaration of right made in proceedings against the Crown is invariably

respected and no injunction is required. If the legislature intended to give the

court jurisdiction to grant incerim injunctions against the Crown, it is difficult to

think of any reason whey the jurisdictions should be available only in judicial

review proceedings and not in civil proceedings as defined in the 1947 Act.

Hence, an enactmeat which in turn applies only to forms of final relief available in

judicial review proceedings cannot possibly have been so intended.” (Lord

Bridge’s emphasis.)

This is a very closely and carefully argued justification for adopting a narrow

approach to the effect of s 31 of the 1981 Act. It deserves very careful attention

coming, as it does from a judge who is acknowledged to have made an

outstanding contribution to this areas of the law. Noetheless. I do not regard it as

justifying limiting the natural interpretation of s 31 so as to exclude the jurisdiction

to grant injunctions, including interim injunctions, on application for judicial review

against ministers of the Crown. I will try to explain why.

First of all it is unasafe to draw any inference from the fact that judicial review

was not first introduced by primary legislation. Primary legislation could have

introduced, the primary legislation, the Judicature (Northern Ireland) Art 1978,

came first and was followed by a subsequent amendment of the Rules of the

591
Supreme Court (Northern Ireland) involving a new Or. 53 which came into

operation on 1 January 1981.

The fact that in Ringland and Wales it was decided that an amendment to the

Rules of the Supreme Court should precede primary legislation did mean that it

was inevitable that the recommendation of the Law Commission that s 21 of the

1947 Act should be amended had to be abandoned. However, this decision not

to amend s 21 is not really surprising veering in mind that the exercise in hand

related to public law proceedings while s 21 dealt with private of civil law

proceedings. Not having dealt with s 21 at the ouset it was natural that, as s 31

was merely cinfimatory of the changes already made, it should not deal with s 21

either.

Order 53 undoubtedly extended the circumstances in which a declaration could

be granted against the appropriate representative of the Crown. Prior to the

prerogative proceedings. Furthermore, there are situations where no declaration

could be obtained in private law proceedings against the Crown without the

assistance of the ?Attornye general in circumstances in which it is now available

on judicial review. It is not suggested that Ord 53 was ultra versa in allowing

declarations there is no reason why it should she regarded as being ultra vires in

relation to injunctions, albeit that the effect is that an injunction cannot be

obtained against a minister of the Crown where previously only an order of

mandamus or prohibition could be obtained. However, if Ord 53 were to be

592
regarded as being open to challenge on this ground, this would explain why the

unusual course was taken, a change having been introduced by an amendment

to the Rules of the supreme court, of confirming the amendment a substantial

period later by the 1981 Act. As a matter of construction it is difficult to treat the

provisions as to injunctions in Ord 53 and s 31 as not applying no ministers, but

as doing so in the case of the other remedies. This difficulty is underlined in the

case of Northern Ireland since the interpretation section, s 118 (1) , of the 1978

Act expressly provides that it should bind the Crown, but in a restricted manner

as respects civil proceedings to which the Act of 1947 applies. It would therefore

bind the Crown as to injunctions in non-civil proceedings, that are judicial review.

Section 19 of that Act also gives the court a wide discretion to grant such interior

relief as it considers appropriate. It would, therefore, seen to be difficult to say

that there is no power to grant interim injunctions against ministers in Northern

Ireland.

If this is the effect of the Northern Ireland legislation the position is likely to be the

same in England and Wales, though the position is different in Scotland. In

Factortame no reference was made to the Northern Ireland Act.

RSC Ord 53. r 3(10) deal with the grant of interim relief on application for judicial

review. It provides:

Where leave to apply for judicial review is granted, then – (a) if the relief sought

is an order of a prohibition or certiorari and the court so directs, the grant shall

593
operate as a stay of the proceedings to which the application relates until the

determination of the application or until the court otherwise orders, (b) if any

other relief is sought, the court may at any time grant in the proceedings such

interim relief as could be granted in an action begun by write.

So far as respondents other than ministers are concerned, the provisions of Or

53, r 3(10)(b) have always been treated as giving the court jurisdiction to grant

RRRRR.this is conformed to be the position by the decision of the court of

Appeal in R v Kenstangion

1 All ER 1202, (1989) QB 518. The power of the court to grant interim injunctions

is linked to the power of the court to grant final injunctions. If the court has the

power to grant a final injunction against a minister it must surely have the power

to grant an interim injunction and vice versa. This is confirmed by s 37(1) of the

1981 Act , which provides:

The High Court may be order (Whether interlocutory of final) grant an injunction

R in all cases which it appears to the court to be just and convenient to do so.

As to the technical point referred to by Lord Bridge, Ord 53, r 3(10) is similarly

linked to Ord 53, r 1 (2) and the almost identically worded provisions of s 31 (2) .

While it is correct that an application for judicial review cannot be made until

leave is granted, this does not mean that s 31 (2) restricts the court’s jurisdiction

to grant interim or final injunctions until after leave has been given and this has

been followed by lodging the formal application with the court. This would be

594
quite out of accord with practice, which has always been followed on judicial

review and would involve the expense and delay of two hearings when at present

there is usually one. The clear intent of Ord 53, r 3(10) is that the court where it

considers an application for leave at an oral hearing should deal with questions

of interim relief if it is appropriate to do so. During the course of the hearing Mr.

Richards was asked whether he could provide any justification for Lord Bridge

regarding the language of s 31 (2) and s 31 (3) together with Ord 53, r 3 (10) as

conclusively refuting the view that s 31 (2) was intended to provide a solution to

the problem of the lack of jurisdiction to grant interim injunctions against the

Crown but he was not able to do so. Prior to the introduction of Ord 53 there was

the same problem of the inability to grant interim injunctions against bodies which

had no connection with the Crown. The changes which are reflected in ss 31(2)

and (3) and Ord 53, r 3 (10) provided a solution in relation to those bodies and it

must surely follow that if s 31(2) gives the court jurisdiction to grant final

injunctions against ministers it must also provide the jurisdiction . Counsel for the

applicants in Factortame did not reply to the Crown’s submissions on this aspect

of the case and I expect this explains why in Factortame the position was

misunderstood.

I am, therefore, of the opinion that, the language of s 31 being unqualified in its

terms, there is no warrant for restricting its application so that in respect of

ministers and other officers of the Crown alone the remedy of an injunction,

including an interim injunction, is not available. In my view the history of

595
prerogative proceedings against officers of the Crown supports such a

conclusion. So fa as interim relief is concerned, which is the practical change

which has been made, there is no justification for adopting a different approach

ot officers of the Crown from that adopted in relation to other respondents in the

absence of clear language such as that contained in s 21(2) of the 1947 Act. The

fact that in any event a stay could be granted against the Crown under Ord 53, r

3 (10) emphasizes the limits of the change in the situation which is involved. It

would be most regrettable if an approach which is inconsistent with that which

exists in Community law should be allowed to persist if this is not strictly

necessary. The restriction provided for in s 21(2) of the 1947 Acr does, however,

remain in relation to civil proceedings.

The fact that, in my view, the court should be regarded as having jurisdiction to

grant interim and final injunctions against officers of the Crown does not mean

that that jurisdiction should be exercised except in the most limited

circumstances. In the majority of situations, so far as final relief concerned

declaration will continue to be the appropriate remedy on an application for

judicial review involving officers of the Crown. As has been the position in the

past, the Crown can be relied upon to co-operate fully with such declarations. To

avoid having to grant interim injunctions against officers of the Crown, I can see

advantages in the courts being able to grant interim declarations. However, it is

obviously not desirable to deal with this topic, if it is not necessary to do so, until

the views of the Law Commission are known.

596
The validity of the injunction granted by Garland j.

What has been said so far does not mean that Garland I 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,

with this was, the fact that leave had not veen granted is a mere technicality. It

would be undesirable if, in the situation with which Garland I was faced, he had

been compelled to grant leave because he regarded the case as an 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 now under Ord 53. The

position is accurately set out in The Supreme court Practice 1993, para 53/1-

14/24, where it is stated:

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 judicial review.

There having been jurisdiction for Garland I to make the order which he did, it

cannot be suggested that it was inappropriate for him to have made the order.

On the view of the law which I now tke, Garland I was therefore not reguired to

597
set aside the order though his decision to do so was inevitable having regard to

the state of the authorities at that time.

The effect of the advice received by Mr Baker

Having come to the conclusion that Garland J’s order was properly made, the

next question which has to be considered is the effect of the advice which was

understandably given to Mr Baker that the order was made without jurisdiction.

Here there are two important considerations. The first is that the order was made

by the High Court and therefore has to be treated as a perfectly valid order and

one which has to be obeyed until it is set aside: see the speeches of Lord Diplock

in Re Racal Communications Ltd (1980) 2 All ER 634 at 634 at 639-640, (1981)

AC 374 at 384 and Isaacs v Robertson (1984) 3 All ER 140 at 143, (1985) AC 97

at 102.

The second consideration is that it is undesirable to talk in the terms of technical

contempt. The courts only make a finding of contempt if there is conduct by the

person or body concerned wich can, with justification, be categorized as

contempt. If, therefore, there is a situation in which the view is properly taken

(and usually this will only be possible when the action is taken in accordance

eith legal advice) that it is reasonable to defer complying with an order of the

court until application is made to the court for further guidance then it will not be

contempt to defer complying with the order until an application has been made to

the court to discharge the order. However, this course can only be justified if the

application is made at the first practicable opportunity and in the meantime

598
IN THE HIGH COURT OF TANZANIA

AT SONGEA

MISC. CIVI APPL. NO. 3 OF 1994

1. NYIRABU CITANO NYRABU

2. HAGAI ENOCK MWAKALENDIYE RRRR..APPLICANTS

3. ADRIANO CITUMBE MATIKU

4. RAMADHANI MBUJI

VERSUS

1. BOARD CHAIRMAN

SONGEA BOYS SECONDARY RRRRRRESPONDENTS

SCHOOL BOARD

HEADMASTER,
SONGEA BOYS SECONDARY
SCHOOL

RULING

SAMATTA, J.K.

This is an application by way of notion field on behalf of Gitano Nyirabu (the first

application), Hagai Enock Mwakalendile (the second applicant), Adriano Citumbe

matiku (the third applicant) and Ramadhani Mbuji (the fourth applicant for the

fellowing orders.

(1) an order of certiorari to bring up and quasha decision made

by the Board of Songea Boys’ Secondary school

599
 (heareinafter rerred to as the Board) expelling he four

applicants from the school;

(2) An order of mandamus directing the Board to considerated

and determine the occasion

(3) In the alternative to the two prayers above, an order of

prohibition, restraining the first and second respondents

from dealing with the Applicants’ case however.

The application has been strenuously contested by Mr. Shio, Senior State

Attorney on behalf of all the respondents.

The following facts are not disputed in this application. The four applications were

Form six students at Songea Boys’ secondary school. On October 25, 1993,

there was a geral unrest at the school involving students who complained of

maladministration, infliction of unreasonable punishments and supply of food,

among others, the respondent one on this point is that only some of the students

were involved in the disturbances. It is common cause, however, that on the

following day some students the respondents estimate than to be between 100

and 150 in number – narched from the school to Songea town intending to air

their grievances to the Regional Commissioner. The latter directed that the

District Commissioner and the Regional Education Office should handle the

matter. The second, third and fourth applicants and another student were

selected to represent fellow students and themselves when meeting the two

officers. The efforts of the two officers failed to solve the problem and 27th

600
October; 1993, the Regional Commissioner had, therefore, to visit the school with

a view to restoring tranquility as the school. He met students as well as members

of staff and after doing so he directed that students return to classrooms while a

probe team he formed, comprising of four government officials, investigated their

complaints. The probe tear carried out its duties owiftly. It interviewed six school

leaders and three students, including the second applicant. None of the

remaining applicants was interviewed. The team did not interview of him was

restricted to the stundents grievances. The team collected some information

which in its view justified the expulsion of the our applicants from the school.

None of the applicants was afforded any opportunity to contradict, correct or

coment on that information. The team recommended to the Board that the four

students, who, according to it, were quilty of being ring-leaders of the students;

strike at the school, be expelled from school. The Board met on January 20,

1994.

It did not carry out any investigation of its own. The, applicants were

subsequently informed of Board’s decision and a letter was sent to each parent

informing then of that decision. The four letters were identical in contents. The

reason given for the explations was that the applicants were the righ-leaders of

the students’ strike and caused turmoil at the school.

Does this court have jurisdiction to grant prerogative of certifiorari and

mandamus in this matter? This is one of the questions I ask myself and which I

will endeavourer to answer in this ruling. It can be stated without any fear of

601
contradiction, I think, that it is an established principle of law that the actions of a

statutory decidion – making body or tribunal may controlled by this Court in

judicial review proceedings if there has been a defect in decision – making

process or if the body’s decision is so unreasonable that no such body could,

properly directing itself, make it. I did not understand Mr. Shio to contest the

corresponess of this proposition. The learned Senior State Attorney’s contention

was, as I understood it, that the only remedy available to the applicants in this

matter is appealing under paragraph (2) of regulation 10 of the National

Education (expulsion and Exlusion of Pupils from Schools) Regulations, 1979

(hereinafter referred to as “the Regulations’.

The regulation roads as follows:

“10. – (1) Subject to provisions of paragraph (2), on order for the expulsion or

exclusion of a pupil from a school shall be final and binding.

(2) Any person aggrieved by the decision of the School Committee or school

board may appeal to the appropriate Appeal Board.

As I understand the law, the fact that a legislation provides an extra-judicial

remedy by way of a domestic appeal does not per se give rise to an implication

that the legislature’s intention was to oust the Court’s jurisdiction completely. To

put it differently, the existence of a statutory right of appeal does not take away

the right of an aggrieved party to apply folr prerogative orders. It must not be

forgotten that whereas an appellate tribunal can make a substitution of its

decision for that of the inferior trigunal, as a general rule, unless there is a

602
statutory authority for doing so, the tribunal cannot command the inferior tribunal

to conduct its own inquiry de novo and in accordance with the principles of

natural justice, a relief which can be granted only by a court of law. It is also

important to remember the salutary words of DENNING L.J. in R v Medical

Appeal Tribunal ex parte Gilmore (19951) 1 All ER 796 at p. 801

“R..on looking against into the old books I find it very well settled that the remedy

by certiorari is never to be taken away by any statute except by the most clear

and explicit words. The word “final” is not enough. That only means without

appeal. It does not mean “without recourse to certiorari”. It makes the decision

final on the facts, but not final on the law. Notwithstanding that the decision is by

a statute made “final” certiorari can still issue for excess of jurisdiction or for error

of law on the face of the record”.

In my considered view, the use of the words “final and binding” in paragraph (1)

of regulation 10 of the Regulations was not intended to oust, and has not ousted,

the jurisdiction of this Court to grant a relief in the form of prerogative order.

Although used in a different context, I respectfully venture to think that what

LORD ATKIN SAID I RAS Behari lal v The King Emperor 50 T.L.R.1 (cited in the

commentary on R v Thompson (1962) Cr. L.R. 118 at P. 119 is universally true.

The statement is as much true in Tanzania as it is in India. This is what the law

Lord said:

603
“Finality is a good thing but justice is better.”

In my opinion, the word “orde” in paragraph (1) of regulation 10 means, and must

have been intended to mean, an order in law. Of course, it does not matter that

the order in question lacks merits. An order may be erroneous on merits, but it

still is an order in law. Provided it is an order in law, on order for expulsion is,

subject to the provisions of sub-regulation (2) of regulation 10, final. If an order is

not an order in law, then there is no order. As a general rule, an order of a

domestic tribunal affecting the rights or interests of an individual made without

complying with the principle of natural justice is not order in law. Such an order is

a nullity. And as already remarked, any provisions purporting to oust the

jurisdiction of this Court of granting order of certiorari must be couched in very

olger terms. I am not deterred by the use of the word “final” in sub-regulation (1)

fro considering whether or not an order of certiorari should issue in this case.

That word protect only decisions which are not a nullity.

But Mr. Shio had two strings to his bow. He contend with much confidence that,

bearing in mind the wording of regulation 10, the applicants had no right in law to

defend themselves before the Board or to offer explanations, if any, on their

alleged misconduct. According to the learned Senior State Attorney, a student’s

right to defend himself exists only when he (the student) has lodge an appeal

against the Board’s decision to expel him, and he can exercise that right only

before the regional appeals Board. This is the effect, according to Mr. Shio, of

604
regulation 10 as read with S. 55 (1) of the National Education Act, 1978 (the Act).

The sub-Section reads:

“55. – (1) For the purposes of hearing appeals , an appeals board may

a) hear, receive and examine evidence’

b) summon any person to attend any hearing of the Appeals Board to give

evidence or to produce any document or other thing in his possession, to

examine him as a witness or require him to produce any document or

other thing in his possession, subject to all just exceptions;

c) Order an inspection of any premises used for a school.

d) Enter and view any premises used for a school.”

I have no doubt that Mr. Shio was perfectly right when he said that the

regulations do not contain any provisions which require the Board to afford a

student an opportunity to defend himself. But in my opinion that silence in the

Regulations does not by itself mean that the Board is not bound to comply with

the principles of natural justice when considering serious accusations against a

student. It mya be useful to quote in extensor here what SIR KENNETH

O’CONNOR, P., whose judgment the other two members of the Court SIR

ALASTAIR FORBES, V.P., and GOULD, J.A., concurred with, said in Hypolite

Cassiano De Souza v Chariman and Members of the Tanga Town Council

(1961)

605
East Africa 377. In that case the learned President Formulated general principles

which he said should guide statutory domestic or administrative tribunals. He

said, ct pp. 386 – 387:

“The general principles which should guide statutory domestic or administrative

tribunals sitting in a quasi-judicial capacity are will know. The authorities are

reviewed in the recent case of University of Geylon v Fernando (1960) 1 All E.R.

631 I think that the principles, so ar as they affect the present case, may be

summaried as under:

(1) If a statute prescribes, or statutory rules or regulations binding on the

domestic tribunal prescribe, the procedure to be followed, that procedure

must be observed; As LORD SHAW OF DUNFERINCLINE said in Local

Government Board v Arlidge (1915) AC 120, at p. 130 “If a statute

prescribes the means it” (the local Government Board) “must employ then”

and in University of Gevlon v Ferndando, at p.638 LORD JENKINS,

delivering the judgment of the Board and speaking of a clause in the

“General Act” of the University of Ceylon, said

(2) “ If the clause contained any special directions in regard to the steps to be

taken by the vice chancellor in the process of statisfying himself, he would,

of course, be bound to follow those directions”.

(3) If no procedure is laid down. There may be an obvious implication that

some form of inquiry must be made such as will enable the tribunal fairly

to determine the question at issue: De Verteuil v Knaggs, (1918) A.C.557,

560.

606
(4) In such a case the tribunal, which should be properly constituted, must do

its best to act justly and to reach just ends by just means )per LORD

SHAW in Arlidge’s case). It must act in good faith and fairly listen to both

sides. It is not bound, however, to treat the question as if it were a trial: it

need not examine witnesses; and it can obtain information in any way it

thinks best: per LORD LOREBURN, L.C., in Board of Education v Rice

and others, (1911) A.C. 179, at p. 182; and Arlidge’s case. A member of

the tribunal may, it seems question withnesses in the absence of the other

members of the tribunal and of the defendant and it is not necessarily fatal

that the evidence of witnesses (including that of the complainant) may

have been taken by the tribunal in the absence of the defendant:

University of Ceylon v Fernando, at p.636 and p. 639. In this respect

Fernando’s case seems to go further than some previous eminent opinion

(see e.g. the seems to go further than some previous eminent opinion

(see e.g. the dictum OF LORD PARKER, C.J., in R v Agricultural land

Tribunal ex parte Bracey. (1960) 1 W.L.R.911 at p.913:

“It (certiorari) goes where there has been a breach of some principle of

natural justiceRlike receiving evidence from one party in the absence of

another.”

And se per GREDER, L.J. in Errington Minister of Health, (1935) 1 K.B. 249

at p. 268

“he must do it in accordance with the rules of natural justice that is to say he

must hear both sides and not hear one side in the absence of the other.”

607
And the remarks of COIREN, Lj. (as he then was) in Johnson & Co. Ministers

of Health (194 772 All E.R. 395 at p. 405)

(5) The person coused must know the nature of the accusation made Byrno v.

Kinematograph Rentero Society Ltd, (1958)

All E.R 579, 599 approved in University of Ceylon v Fernando

A fair opportunity must be given to those who are parties to the controversay

to correct or contradict any statement prejudicial to their view board of

Education v Rice and others and to make any relevant statement they may

desire to bring forwad: De Verteuil Knaggs: General Medical Council v

packman. (1943 A.C. 627 641.

The tribunal should see that matter which has come into existence for the

purpose of the quasi-lis is made available to both sides and, once the quasi-

lis has started, if the tribunal receives a communication from one party or from

a third party, it shouls give the other party an opportunity of commenting on it:

Johnson & Co. v Minister of Health at p. 404, 4051”

The punishment of expulsion from school can have very serious advorse

consequences on the life of the student concerned. It would, I think, shook the

right thinking members of the community – those with the right spirit in then –

that such a penalty can properly be imposed on a student when he is not able

to say a word in his defence. In my considered opinion the mere severity of

608
the penalty demands notwithstanding the silence of the regulations on the

point, that the student should not be condormed unheard. Statutory domestic

or administrative tribunals would dwell to remember, when discharging their

not unimportant functions, the focus words of MEGARRY, J., in John v Rees

and Others (1969) 2 All E.R. 274, at p. 309:

“It may be that there are some who would decry the importance which the

courts attach to the observance of the rules of natural justice. “ When

something is obvious”, they may say, “why force everybody to go through the

tiresome waste of time involved in framing charges and giving an opportunity

to be heard? The result is obvious from the start.” Those who take this view

do not, I think, do themselves justice. As everybody who has anything to do

with the law well knows, the path of the law is strewn with examples of open

and shut case which, some how, were not: of unanswerable charges which,

in the event, were completely answered; of inexplicable conduct which was

fully explained; of fixied and unalterable determinations that, by discussion,

suffered a change. Noy are those with any knowledge of human nature who

pause to think for a moment likely to underestimate the feelings of resentment

of those who find that a decision against then has been made without their

being afforded are opportunity to influence the corse of events”.

I on tort in no doubt that in the present case the Board was bound to couply

with the principles of natural justice laid down by SIR KENNETH O’CONNOR,

P., in Do sounce’s case suprg. Especially the second, third and fifth

609
principles. With considerable amount of ingenuity, Mr. Shio submitted that the

peculiar natural of student’s affairs demands that a school Board acts swiftly

when dealing with delicate situations involving discipline at the school. I can

appreciate the force of this argument, but I do not think the contention is

capable of constituting a justification in law for the Board’s omission to give

the applicants opportunity to correct, contradict or comment on what was

alleged against then. Speed is no doubt a good thing but fairnoss is beteer. It

is utterly wrong for a school board to a crifice the latter at the later of the

former. Be that as it may, if a school Board is of the considered view that the

interests of the school community or the community at large demand that an

accused student be immediately separated from the rest of the school

occumity, it can sufficiently protect those interests by suspending the student

from the school pending inguiry. The school Board need not give the affected

student opportunity to show cause why be should not be so suspended. This

is because principles of natural justice do not apply to suspension pending

inquiry: Lewis v Heffer (1978) W.L.R. 1061.

For the reasons I have given, I agree with Mbogoro, counsel for the applicant,

that the Board strayed into a serious error in not complying with the principles

of natural justice. Having expressed that view, I ask myself this question: is

there need of proof of prejudice when non-observance of principles of natural

justice is established? The authorities. In S.L.Kapoor v Jagnchap (1987) LRC

(Const.) 351, at pp.377 – 378) the Supreme Court of India dealt with the

610
question I have posed and speaking through chinnappa Reddy, J., said at p.

766:

“In our view the principles of natural justice know of no exclusionary rule

dependent on whether it would have made any difference if natural justice

had been observed. The non-observance of natural justice is itself prejudice

to any man and proof of denial of natural justice is unnecessary. It ill comes

from a person who has denied justice that the person who has been denied

justice is not prejudiced.”

In De Souza’s case supra, Sir KENNETH O’CONNOR P., cited with approval

the following passage from the judgment of LORD WRIGHT in General

Medical Council v Sparkman (1943) A.C 627 at p. 644:

“ If the principles of natural justice are violated in respect of any decision, it is

indeed immaterial whether the same decision would have been arrived at in

the absence of the departure from the essential principles of justice. That

decision must be declared to be no decision.”

In the application now before no I have hold that Board arred in not complying

with the principles of natural justice when it dealt with the applicants cases.

Applying the principle stated in the two passages I have just quoted, I am of

opinion that the fact – it be a fact – that the board would have made the same

decision if it had not violated the principles of natural justice cannot cure the

nullity of their impugned decision.

611
Before I decide what orders, if any, to make in this application I must deal,

abeit briefly, with Mr. Mbogoro’s submission that an order of prohibition

would, bearing in mind the Regional Commissioner’s alleged. Announcement

that the formation of the probe team to inquire into the students’ complaints

would be the closing chapter of the events which took place at and outside

the school following the raising of complaints by students, be a more just

order than orders of certiorari and mandamus. I have anxiously and, I hope,

carefully considered this argument, but in the end I am of the settled opinion

that the argument is singularly devoid of merit. Assuming that the regional

Commissioner did make the alleged announcement, I must say at once that

there is no provision in any legislation, whether principal or otherwise, and

there is no principle or rule of common law which makes the alleged

announce legally binding on the Board. There is, therefore, no basis for

issuing an order of prohibition in this case.

A decision of a domestic tribunal affecting the rights or interest of an

individual which is made in violation of the principles of natural justice is no

decision in law. Such a decision is a nullity. Inspite of the ingenuity which has

been expended by Mr. Shio in his gallant attempt to persuade to hold that the

application ought to be dismissed, I am of the settled opinion that the orders

for expulsion whose validity the applications have challenged fall under this

court’s as every lawyer knows, are discretionary remedies. Viewing the merits

and equities of the application I have no doubt that justice demands that the

612
 first two prayers, to wit, orders of certiorari and mandamus be granted.

Accordingly, the Board’s decision expelling the four applicants from Songea

Boy’s Secondary school is quashed and the Board is directed to consider the

accusations made against the applicants de novo and in accordance with the

principles of natural justice.

Before parting with this case, I desire to make the following two remarks.

(1) Judging by evidence laid before no (in form of affidavits), I have no doubt

all that in dealing with the accusations made against the applicants the

Board was actuated by the best natives, but even those natives cannot

justify the Board’s omission to comply with the principles of natural justice

(2) I wish to make it perfectly clear that I am not unaware of reports

concerning disturbances which have recently occurred at some of the

secondary schools in the country. Since the temple of justice I am sitting in

is a court of law and not a court of sentiment, those reports are mattrs

which I could not, in law, properly take into account in determining the

application.

The application is granted as indicated. The applicants will have their costs.

B.A SAMATTA

JAJI KIONGOZI

613
Delivered at Songea in open court this 25th day of March, 1994, in the presence

of Mr. Mbogoro, Counsel for the applicants and Mr; Shio counse for the

respondents.

CIVIL CASE NO. 53 OF 1990

OBADIAH SALEME RRRRRRR..PLAINCIFF

VERSUS

DODOMA WINE COMPANY LTD RRRR.DEFENDANT

JUDOMENT .

MWALUSANY, J:

The plaintiff Obadia s/o Salehe was employed by the defendant company,

Dodoma Wine Company Ltd as a Laboratory technician. He was terminated from

his employment on 18th December 1986 and got paid his terminal benefits. The

dispute was reformed to the Worker’s committee at his place of employment,

and the Committee found him innocent. The employer reformed the matter to the

Conciliation board.

Before I proceed I wish to refer to the charges that were leveled against the

plaintiff. There were four charges. First that plaintiff as a production Supervisor

had failed to report to the management about the misuse of the company’s

bottling plant after official hours by an unauthorized persons. Secondly that the

plaintiff as a Production Supervisior had failed to report to the management that

some illegally prepared wine was being sold by the Mini-super Market in Dodoma

Municipality, passing off as wine prepared by the defendant company. Thirdly

that the plaintiff as a production supervisior was stealing some botytles of wine

614
and illegally taking then away from the factory. Faurthly that the plantiff had

written three irreasiposible letters to the Minister for Agriculture, to Mirigamo and

to the Member of Parliament for Dodoma Urban, complaining about the bad

management obtaining at the defendant company,. It is there four charges that

the plaintiff was acquitted of by the worker a committee.

The conciliation board declared . to hear the dispute on merits. It held that since

the plaintiff had accepted payment of the terminal benefits, then he had forteited

his right to complain to the conciliation board. It further held that by accepting

payment of the terminal benefits, the plaintiff had concurred with the termination

given out by his employer and so he is stopped from lodging a complaint to the

conciliation Board. The plaintiff appealed against that decision to the Minister for

labor.

The Minister for labour also declined to hear the appeal on merits different

ground from that given by the conciliation Board.

The minister for labour hold that the decision of the Conciliation Board was foul

and void because it heard a dispute roamed to it which was time barred. The

Minister said that according to the law, a complaint to the conciliation Board has

to be filed within 14 days from the day the employed was terminated from

employment. In this case the employee was terminated from employment on

18/12/1996 at filed his complaint to the conciliation board on 8/1/1987 which was

home 21 days from the day of termination from employment. And to the Minister

615
held that the decision by the Management of termination from employment of the

plaintiff would stand.

After that the plaintiff filed misc. Civil Cause No. 2.of 1989 applying for leave to

apply for orders of cultiorari and mandamus. He wanted the High Court if quash

the decision of the Minister for labour and order him to hear the appeal of Ms on

merits. That application for leave was refused by masaneto Judge on the ground

that prerogative orders are not to be invoked who there is a contractual

relationship between the applicant and the respondent. The learned judge stated

that, that was in accordance with the decision of the Vrs, Frederick Kibwana: Civil

Appeal No. 1 of 1987 (unreported). Undaunted, the plainfitt filed this smits.

Before this suit came for hearing, counsel for the defendant. Company Miss.

Mutabazi raised a preliminary objection to the effect that this court had no

jurisdiction to hear this case.

Sshe arguard that the jurisdiction of this court had been ousted by s.27(1), the

security of employment Act Cap. 574. The preliminary objection was upheld, and

I held that this court has no jurisdiction because the decision of the Minister could

only be challenged by mean of prerogative orders of certiorari and mandamus. I

said that it was imprint to file an ordinary Civil suit to challenge the decision of the

Minister. Later the plaintiff file on application for review on the ground that is

decision was give per incuriam.

616
I conceded that as wrong in view of the two decisions of the Tanzania Court of

Appoal in Patman garments Industries Ltd, Vrs Tanzania Manufacturers Ltd:

(1981) T.L.R. 303 and D.R. Kaijage vrs, Esso Standard Tanzania Ltd: Civil

Appeal No. 10 of 1982.

In fact those two decisions have been confirmed by the full court of the Tanzania

Court of Appeal in the case of Esso Standard Tanzania Ltd. D.R. Kaijage: Civil

appeal No. 6 of 1989 whose decision was delivered on 2/8/1990. In Kaijage Case

Civil Appeal No. 10 of 1982, Makone J.A. p.2 of the suit would proceed to trial:

and indeed I hoard the suit.

However I commenced the trial reluctantly and may program on the courts. It has

created a new general substitute of judicial review for the normal procedure of

judicial control of administrative action by means other than prerogrative orders.

The decision expands judicial review to encompass ordinary civil suits instead of

being confined to prerogative orders of certiorari, prohibition and mandamus,.

The consequences are monstrous. First, since an ordinary civil suit is sanctioned,

you don’t have to sue the official whose decision is impugned, as is the case in

here end as was the case in Patman’s case (supra), in Kaijage case (supra) and

in Mahona vrs, Unviversty of DSM: (1981) T.L.R. 55. The official who decided the

impugned administrative act is not made respondent, but his decision is

nevertheless challenged in a collateral suit. In patman’s case (spurn) the said

problem was referred to, however Mwakasendo J.A brushed it aside by stating at

p.310 that if th defendant wanted the public official concerned to defend his

617
impugned decision, thenb the said defendant was at liberty to apply to have the

said public official included as 2nd respondent, but that it was not necessary to do

so to reach a correct decision against him in an ordinary civil suit.

At create problems in many cases, as the said public official is not give as

opportunity of being heard.

Secondly, one does not know where the High court derives its power to

challenge on administrative decision in an ordinary civil suit. When the courts

interfere with an administrative decision by means of prerogative orders they

derive their power under 0.17(2) of the Law reform (Fatal Accidents and Misc,

Provisions) Ord, Cap, 360 as amended by Act No. 55 of 1968. By virtue of that

provision, the High Court is required to occurcise its supervisory role to ensure

that a tribunal or such body below acts in accordance with the Law. The high

court ansures that the inferior tribuna does not exceed it s jurisdiction which

Parliament has conferred on it and the High Court does so despite the quoter

clauses – see the decision of the Tanzania Court of Appeal in A.C. Vs Leginoi

Ndenai: (1980) T.L.R. N 215 in which the court adopted the holding of Lord

Vilborforce in the English case of Anisminic Vrs. Foreign Compensation

Commission: (1969) 2 A.C.147 wherein at p.207 he said:

“The question what is the tribunal’s proper area is one which it has always been

permissible to ask and to answer and it must follow that examination of its extent

is not precluded by a clause conferring conclusiveness, finality. Or

618
unquestionability upon its decisions. These clauses in their nature can only

related to decisions given within the filed of operation ontrusted to the tribunal”.

That is the mandato of the HIGH Court when exercision its supervisory role of

inferior tribunals by means of prerogative orders and that power derivas from

Cap. 360 as amended by Act No.55 of 1968 as indicated above. But where does

the High Court get its power to interfere with administrative decision in an

ordinary civil suit? Admittedly, in the Kaijage case (supra the Tanzania Court of

Appeal was emphatic that though an ordinary civil suit may be filed to challenge

an administrative decision, yet the scope of judicial review, in the presence of the

ouster clause was to be confined to examining as to whether the decision maker

went out of his jurisdiction e.g. breach of the principle of natural justice,

procedural impropriety, illegality e.t.c. Thus in the case of Mwanza Textile Ltd.

Vrs Augustine Masatu: Civil appeal No. 8 of 19988 (unreported), the Tanzania

Court of Appeal held that the High Court had no jurisdiction to try the suit

because in that case the employee was not challenging any ministerial decision

which was made in excess of jurisdiction or in breach of the principles of natural

justice. It said that the ex-employee in the Karatu case was simply suing his

employer for damages for failure to employment despite the order of the Minister

for labour this is not the plaes respell the decision in the RRRRRRRR..but

one may legistionately ask as to whether Masatu was not simply enforcing the

decision of the Minister for Laour of reinstatemtn by mean of a civil suit as he

was entitled to under decision 41 and 42 of the Security of Employment Act cap.

619
574. He was just claiming damages from his employment for failure so reinstate

him. He was not challenging his dismissal. Which is the only matter precluded by

the ouster clause. Be that as it may, even if the High Court in an ordinary civil suit

is to be confimed to examining the validity of the ministerial decision, the

question still remains as to where does the HIGH Court derive its jurisdiction to

challenge the administrative decision when the prerogative orders are not

involved, as indicated above, it is only by means of prerogative orders under

Cap. 360 that the High Court can exercise its supervisory role over inferior

tribunals.

Thirdly, since an ordinary civil suit would suffice, it now means there is no need

for the plaintiff to apply for leave to file that suit, unlike the case where

prerogative orders are invoked. The restriction of having first to apply for leave is

important because it was meant to check in the bud frivolus or ambarassing

challenges of administrative decisions and the restriction under Cap.360 that

judicial review should be applied for within six months from the day decision

challenged occurred is also now gone.

Fourthly, and this is the most important, it now means that because the High

Court is hearing an ordinary civil suit and not exercision judicial review perse, the

dispute in the suit can be heard on merits instead of leaving the decision of the

matter to the decision maker of an administrative act in question. Thus in the

Partman’s case (supra) the Tanzania cpourt of appeal took to itself the task of

620
deciding what the decision-maker should have decide after declaring his decision

null and void and thereof after considering the merits of the case it delared the

plaintiff the lawful owner of the plot in dispute. Traditionally (where only

prerogative orders were invoked to challenge an administrative decision) the

Court would have issued an order of mandamus to commond the decision –

maker concerned to devide afresh the matter in accordance with the law,. For

example, that that was done is the case of Ally Linus Vrs Tanzania Harbours

Authority: Civil Appeal No. 2 of 1983 of Tanzania Court of Appeal (unreported).

So now it is fashionable to usurp the power of the decision-maker after declaring

his decision void.

That is a the necessary collarary of ongrafting the power of judicial review in an

ordinary civil suit. This practice of usurping the power of the decision – maker

was again invoked in the Mahong case (supra) which followed suit, the decision

in the Patman’s case. The Mahuna case is remarkably similar to this case, and in

there Kisanga J. (as he then was) declared the decision of the Minister for labour

as void. That was o.k. But he went further and decided the dispute on merits

instead of ordering the Minister to decide the Matter in accordance with the law.

Consequently after considering the marits of the case, the learned judge

declared that the plaintiff was unalwafully commated and that he was still an

employee of the defendant from the day of the purported termination up to the

day of judgment and that he was entitled to all his emoluments and benefits up to

the day of judgment. It is because the court cannot and could not issue an order

of mandamus in an ordinary civil suit where mandamus has not been applied for?

621
There is the other question, how does the court in an orlinary civil suit quash the

decision of the minister when there is no order of corturari applied for nor

granted? Perhaps the latter question can be ansered by stating that a void

decision need no formal quashing order, as it is a decision which is non-

existence in law.

The mere fact that the legical conclusion of the Accisions of the Tanzania Court

of Appeal is to the affect that the courts themselves can decide the dispute on

merits instead of remandong it to the requisite decision – maker loads to

monstrous results. The courts may rightly be accused of usurping power of the

administrates and members of the executive. Thus the present case raises in

acute form the constitutional problem of separation of powers between

Parliament, the Executive and the Courts. There is a timely reminder of the limit

of the Court’s powers by Lord Brightman of the House of Lords of England in the

case of Chief Constable of the North Wales Police Vrs. Evans: (1982) V.L.R.

1155 where at P. 1173 he said:

“Judicial review is concerned, not with the decision, but with the decision-making

process. Unless that restriction on the power of the court is observed, the court

will in view, under the guiso of preventing the abuse of power, be itself guilty of

usurping power’.

And on the some point Lord Samon of the rise of Lords in the case of Secretary

of State Vrc, Nottighamshire Country council: (1986) L.R.C. (Const.) 769 has

safed to the affect that:

“Judicial review is a grant weapon in the kinds of the judges:

622
but the judges must observe the constitutional limits set by our parliamentary

system upon their exercise of this beneficent power.”

“The courts have a special role to play in curbing anomalies

or aberrations reach arise in policy implementation through over-zealousness,

misinterpretation of policy, lack of

expertise, inefficiency or inevitably had faith. By so doing, not only would the

courts guarantee their own future, but they would contribute significantly to the

effectiveness of public administration”.

The same point is stressed by Lord Donning Mr in the case of Laker Airways Ltd.

Vrs Department of Trade: (1977) 2 E.R. 182 whorein he points out that the power

of the courts is confined to declaring the decision of the administrator as void if

there is an abuse of power but that, that does not empower the courts to take

upon themselves the power of deciding what that administrator should have

decied. He said at pp. 194 – 195 of the above named case:

“these courts have the authority – and I would add the duty- in a proper case,

when called upon, to inquire into the exercising of a discretionary power by a

Minister or his department. If it is found that this power has been exercised

improperly or mistakenly so as to infringe unjustly on the LEGISTIMEATO

RIGHTS AND INTERESTS OF THE SUBJECT, THEN THESE COURTS MUST

SO DECLARE. They stand, as ever, between the executive and the subject, as

623
Lord alkin said in a famous passage, alert to see that any corcise action is

justified in low. To which I would add: alert to see that a power

RRRRRRRRRRRRRconcretionary power is not untrammolled. It has to

be exercised with a due sense of responsibility. I has to be exercised wisely and

with due judicial restraint; and only whom the prerogative orders have been

invoked. If judicial review has the aforesaid widespread effect on government

administration, can there be any farms those tis any truly became an instrument

of sabotaged. In my view, there is, and it lies first in the failure to follow the

nearby road of judicial legitimacy in avoiding breach of the limits of judicial

review. Lord Devlin in his work Judges and Lawakars’ (1976) 39 H.L.R. 1 ct p.5

calls that breach of limits as judicial demis and says it is antithetical to public

confidence in the legal system. Some other lawyers have termed such breach of

judicial limits as judicial Adventuris, while myself in the case of Air Hanza Umar

Yrs, Unistor for Local Government, Cooperatives and Marketing: Mwanza Msc.

Civil Cause No. S of 1989 (unreported) has termed it as Judicial Importialism.

While the judges have a duty to expand judicial review too rich and too little

intervention must be fixed in principle.

For example a clear policy aim of he government of Tanzania has been to have

the Labour disputes decided outside the judicial process. Yet the Tanzania Court

of appeal has authorized the courts to decide the labour disputes after declaring

the decision of the Minister void, and that reveals clearly that the courts are quite

insensitive to the policy aim of the government and that say be interpreted as

624
intended to furtmore national policy. Robert Martin in his work (supra) cautions

that such judicial decisions may backfirst. He states at p.128 of his book:

“If the courts in exercising their powers of review are such to be frustrating the

polies of the government or the party then their usefulness and effectiveness in

the whole procese of government will decline. A more useful approach might be

for the courts to see their role as organs in the process of policy implementation.

The courts have to show a greater concern to the national policy when exercision

judicial review. This is becameto, there is the wider question of the democratic

acceptability of judicial review. The entitled legitimacy of judical review depends

in the ultimate of the geneal community in the way in wich the Court perform the

function assigned to then under the doctrine of separation of Powers. Judicial

review has no support other than public confidence. Thus it behaves the Courts

to be over sensitive to the paramount read to refrain from trespassing upon the

province of Parliament. There is need to act with great circumspection and with

close regard to the daners of usurping or encroaching on any function with the

statute has specifically conferred on Parliament or the Execut. As Mr. Justice

Frankfurter of the Supreme Court of U.S.A acknowledged in Trop Vrs Dulles;

(1957) 356 U.S. 86 at p. 119:

“All power is, in Madison’s phrase, of an encroaching nature

RRRRRRRRR.Judicial power is not insure against this human weakness. It

also must be on guard against encroaching beyond its proper bounds, and not

the less so since the only restraint upon it is self – restraint.”

625
We must not betray the confidence bestowed upon us by the public. In the book

‘What Next in the Law” (1982) Buttorwoth,”Lord Denning M.R. asks pertinent

question at p.330:

“There remains the most touchy question of all. May not the judges themselves

sometimes abuse or misuse their power? It is their duty to administer and apply

the law of the land. If they should divert it or depart from it-an do so knowingly

they themselves would be guilty of a misuso of power. So we come up against

juvenal’s question, but who is to guard the guards themselves? (sed quis

custodiet ipsos custodies?) RYou need have no fear. Someone must be trusted.

Let it be the judges.

Indeed it will surely call for wisdom on the part of the judges in exercising their

powers and also an equal sense of proportion of public confidence in that

wisdom. On the problem under discussion,. If for onc, was content with judicial

control of administrative decision by means of prerogative orders only rather than

by ordinary civil sue as expounded by Tanzania Court of Appeal. They have laid

down the law, and I am bound to follow it.

Similarly in this case, the provisions of s. 40 (5) of the security of employment act

no road that they encompass even employees who are innocent having

committed no effened at all. Such a provision is, to use the phrase used by the

Tanzania Court of Appear a rat – trap which catches both rats and huster

distinction. A provition of that nature attempts to protect society by endangering

626
society. That observation applies to the present problem under discussion,

Innocent employees are also cought up by it. Therefore the provisions of s. 40 (5)

of the security of Employment Act are void, and I construe it to be modified such

that an employer is now obliged to reinstate this employee who is innocent and

not caught up by the provisions of s. 39 (2) and s. 40 (1) of the Act. As indicated

herein above the plaintiff in this case has satisfied the provisions of s. 39 (2) and

s. 40 (1) of the security of employment Act and therefore he has to be reinstated

with no option to the employer to refuse the reinstatement. I so order.

The plaintiff’s first prayer is for a declaration that his termination was illegal and

that he was at all material times in the continued employment of the defendant

company. That prayer is granted in view of my observation above. The second

issue that was framed at the commencement of the trial was as to whether the

plaintiff is entitled to arreas of slary and other benefits from the date of

termination to the date of this judgment. In the main case (supra) Kisanga J. Held

that the employee rendered no services to his employer. The decision of Kisanga

J. was correct as it accords with s. 40(4) of the security of employment Act

(which was not referred to by the learned judge) which provides:

‘A reinstatement shall have affect, for the purposes of

the payment of wages and of entitlement to severance

allowance and other retiring benefits and otherwise in relation to any benefits of

employment, from the date of termination RRRRR.but the employer may

deduct from any wages due after reinstatement, the wages in respect of the

627
number of days during which the employee remained absent from work during

termination.

Employee should be renurated for days he did not work, in this case being

RRRRR.of 4 years

Out that does not mean the employee is not entitled to damages. It is my finding

that the employees is entitled to damages because he did not contribute to the

creation of the situation he found himself in. he was prevented from rodung his

act fees to the defendant by the wrongful acts of the deendant himself. In that

regard the plaintiff claims sh. 3,000,000/= as damages can loss of burnings and

shs. 1,000,000/= as damages for loss of future expected earning is he is not

reinstated. The claim of shs. 1,00,000/- is not now applicable because this court

has ordered his reinstatement and so he cannot be expect to have any loss of

any future burnings. Be regards the claim of damages of Shs. 3,00,000/- I think it

is too much on the high side. After all he was expected to be barning a monthly

salary of shs. 1,775/= which norms in 41/2 years would not have exceeded shs

150,000/- despite the annual incralents granted by the president to all

employees. The defendant company did not challenge the fact that the plaintiff

was entitled to the damages, apart from a nere denial of liability. My finding is

that the plaintiff is entitled to damages for the inconvenience caused to him. My

assessment is that the plaintiff should get shs. 50,000/- as damages which I find

personable.

628
In the event, the prayer for a declaration is granted and I order that the plaintiff

should proximately be reinstated in his employment. And I also enter judgment

for the plaintiff in the sum of shs. 50,000/- plus costs of the suit and interest at the

rate of 10% p.a cn the decrial amount until payment in full. Order accordingly.

629
PARTMAN GARMENTS v TANZANIA (MWAKASENDO, J.A.)

PATMAN GARMENTS INDUSTRIES LTD. V. TANZANIA

MANUFACTURES LTD

(COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM’ (Mustafa,

Mwakasendo, Kisanga, JJ.A)

CIVIL APPEAL 15 OF 1981

Land Law – Right of occupancy – Powers of the President to revoke-whether the

Court can im,pugn the validity of the decision by President-Section 10(1) and (2)

of the Land Ordinance.

Land law –Right of occupancy – Powers of the President to revoke- Revocation

Must be for good cause – Section 10(1) of the Land Ordinance.

Land Law – Powers of the President undr s 10 of the Land Ordinance – Whether

Executive or judicial or quasi judicial – No longer valid.

Both the appellant, Patman Garments Industries Ltd. And the respondent,

Tanzania Manufactures Ltd,, claim to be the lawful occupiers of a piece of land

described variously as Plot No. 154 or Plot No. 94 which is situated at Kipawa

Industrial Area within the city of Dar es Salaam. The respondents based their

claim to the land on a certificate of Right of Occupancy issued to them either or

Ist April 1978 or 29th May 1978 by the Directorate of Land Development Services.

The offer of the right of occupancy to the land was communicated to them on 29th

May 1978 and was accepted on the same day. The appellants claim that they

secured the offer of right of occupancy of 24th January 1978 and accepted it on

630
25th January 1978. However on 5th February 1979 there was a revocation of the

riht of occupancy granted to the appellant was proper in law but went further to

discuss whether the court had power to impugn the validity of the order of the

president to revoke a right of occupancy. The appellant was dissatisfied with that

decision hence this appeal.

Held: (i) though the President has power under s. 10(1) of the Land Ordinance to

revoke any grant of right of occupancy for good cause he cannot do so unless

the conditions prescribed by law for its exercise are fulfilled;

(iii) the decision made by the President revoking the right of occupancy in

this case is bad in law because it was made for no good cause and

therefore was unlawful:

(iv) the distinction of the power of the President to be either executive,

judicial or quasi- judicial is no longer valid.

TANZANIA LAW REPORTS

Cross referred to:

631
 (1) Re H.H. (1967) 2 Q.B 617.

(2) Padfield v Minister of Agriculture. Fishers and Food (1968) A.C. 997.

(3) Schmidt v Secretary of State for Home Affairs. (1969) 2 Ch. 149

(4) R. v Gaming Board ex parte Benaim (1970) 2 Q.B 417

(5) Congreve v Home Office (1976 Q.B. 629.

P.R. Dastur, for the appellant.

M.a. Lakha, for the respondent.

March 8, 1982. MWAKASENDO, J.A., read the following considered judgment of

the court: The dispute from which this appeal arises relates to a right of

occupancy over a piece of land described variously as Plot No. 154 or Plot No.

94 which is situated at Kipawa Industrial Area within the City of Dar es Salaam.

As both counsel, Mr. Dastur for the appellant company and Mr. Lakha for the

spondent company, have conceded that Plot no. 154 and Plot No. 94 are one

and the same plot of land we propose throughout this judgment to refer to the

disputed plot as plot No. 94 or simply as “the land”.

At the trial both Tanzania Manufactures Limited (the respondents) and Patman

Garments Industries Limited (the appellants) claimed to the lawful occupiers of

the land. The Tanzania Manufactures Limited based their claim to the land on a

certificate of right of occupancy No. 22378- Exhibit P1 which is now mysteriously

632
missing from the trial court record-issed to them by the Directorate of Land

Development Services ither on 1st April, 1978 (vide paragraph 3 of the Plaint) or

29th May, 1978 (see Exhibits D 10 and P3). The offer of the right of occupancy to

the land was communicated to the Tanzania Manufacturers Limited on 29th May,

1978 and accepted the same day. Remarkably, the processing of the certificate o

title started on the same day; we obtain this useful information from Exhibit P3

which is a letter from the District Land Officer, Ilala, addressed to Patman

Garments Industries Limited on 12th August, 1978. The letter reads:-

I am sorry to inform you that the above mentioned plot has already been given

the one Shamshudin Papat Hirji since 29th May, 1978 by our offer No.

ILA/2586/HHK of 29th May, 1978 and the land fees for the above plot shs. 5,352/-

has already been paid, and the preparation of the title is almost finished.

The dispatch with which the application by the Tanzania Manufactures Limited

for a right of occupancy appears to have been handled by the Directorate of Land

Development Services is without doubt spectacular and a marked contrast to

their earlier dilatory dealings with Partman Garments Industries in respect of the

same plot. We now turn to consider the story told by Patman garments Industries

Limited.

Pratap K. Pattani (D.W.I), the Managing Director of Patman Garments Industries

Limited, gave evidence in court in support of his company’s right to the

occupation and use of the land and produced documents to substantiate his

company’s claims to the land. Exhibit D2, a letter addressed to Patman

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Garments Industries Limited by the Director of Land Development Services fully

bears him out. In the letter which is dated 23rd January, 1978, the Director of

Land Development Services told Patman Garment Industries Limited:

Your application for a long term right of occupancy (later in this letter called “the

right”) over this plot has been approved. On receipt of the fees and information

requested below I will send a certificate for you to sign,,,,

On 24th January, 1978 Patman Garments Industries Limited received the Offer of

Right of Occupancy from the Director of Land Development Services. The offer

was in respect of-

All that piece of parcel of land containing 4,200 square metres known as

Patman’s Garments Industries Limited at Kipawa Industrial Area Dar es salaam

City which for the purpose of identification only is shown red on the plan annexed

hereto.

The offer then reiterated what the Director of Land Development Services had

already told Patman Garments Industries Limited in the land known as “Patman’s

Garments Industries Limited” had been approved:-

You application for his land (hereafter called “the land”) has been approved and I

am directed to offer you a right of occupancy (hereafter called the right”) over it

on the conditions set out below.

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One of the conditions set out in the offer related to the circumstances under

which the right of occupancy could be revoked by the President. These

circumstances are described in paragraph 9 of the Offer, which reads:

The President may revoke the right for good cause or in the public interest or

assign failure by the occupier to comply with the conditions expressly or impliedly

contained in the right.

The Offer of the Right of Occupancy communicated to Patman Garments.

Industries Limited on 24th January., 1978 was accepted by them on 25th January,

1978. On the 5th February, 1979 there was a revocation of the Right of

Occupancy over LD. No. 46100 Granted to Patman Garments Industries Limited.

At the trial of the suit a lot of allegations were exchanged between the parties

involving the conduct of the parties themselves and, by and large, the various

officials of the Directorate of Land Development Services who were concerned

with the double allocation of Plot No. 94. Some of these allegations have been

repeated before this court. However, as there allegations and counter allegations

were considered and disposed of by the learned trial judge in his judgement, we

think no useful purpose will be served by going over the same allegations agains.

In any case, the isse before us, as both Mr. Dastur and Mr. Lakha, have readily

conceded, is a very brief one whether the revocation of the right of occupancy

held by Patman Garments Industries Limited in respect of the disputed parcel of

land was lawful.

635
The learned trial judge in his judgment, after discussing at some length the

respective claims of the parties to the land, held that the right of occupancy

granted to Patman Garments Industries Limited over the land, was perfectly

proper in law. He said

In my judgment, I find that the right of occupancy which was granted to the

defendant was perfectly good and that there was nothing irregular in the manner

itr was granted to him. I find that the right of occupancy which was granted to the

plantiff on 29th May, 1978 was, at least up to the day the revocation order was

made ie the day the plaint was brought to court, colorable and inoperative.

Whether it acquired any validity subsequent to that order is a matter to be

presently determined. And that leads me directly to the question whether the

revocation order is sustainable.

The learned trial judge then went on to discuss whether the President’s exercise

of the power of revocation of the right of occupancy in this case fell under the

provisions of subsection (1) or subsection (2) of s.10 of the Land Ordinance, and

the concluding, for reasons which are not apparent on the judgement, that the

President must have revoked the right of occupancy held by Patman Garments

Industries Limited by invoking the provisions of subsection (2) ie., in the public

interest, proceeded to discuss the issue whether the court could impugn the

validity of the decision by the President. In the end the learned trial judge was not

satisfied that the President had acted either improperly or mistakenly on the

matter and accordingly held.-

636
 (a) that up to the 5th February, 1979 the day the revocation order was made

and the plaint filed, the defendant was at law the holder of the right of

occupancy over the suit plot (b) that the revocation order had a double

effect – it rendered the defendant’s right of occupancy void and the

plaintiffs title good; and (c) that from that day, but for the interim order of

this court, the plaintiff was entitled to have peaceful possession and to be

in lawful occupation of the plot.

The question that arises for determination is whether the learned trial judge is

right in this conclusion. To deal with the matter we will start with a brief

examination of the law. Section 10 of the Land Ordinance sets out the conditions

which must first be fulfilled before the President may lawfully revoke a right of

occupancy to land. Section 10 provides, inter alia:

10-(1) it shall not be lawful for the President to revoke a right of occupancy

granted as aforesaid save for good cause. Good cause shall include

(a) non-payment of rent, taxes, or other dues imposed upon the land;

(b) abandonment or no-use of the land for a period of five years

(c) breach of the provisions of s. 14

(d) breach of any term or condition contained or to be implied in the citrate of

occupancy or in any contract made in accordance with s.7:

(e) attempted alienation by a native in favour of a non-native:

(f) breach of any regulations under this Ordinance relating to the transfer of

or other dealings with rights of occupancy or interest therein.

637
10 – (2) Notwithstanding the provisions of subsection (1) the President may

revoke a right of occupancy if, in his opinion, it is in the public interest so to do.

3) Where a right of occupancy is revoked under this section such revocation shall

take effect and be valid notwithstanding any provision to the contrary contained

in any other written law or any order made or issued by any court prohibiting the

occupier from transferring or otherwise disposing of his interest in the land or of

any unexhausted improvement existing on the land.

The learned trial judge in the court of considering the powers of the President

under the provisions of subsections (1) and (2) of s. 10 discussed the question

whether the President’s functions under the two subsections were quasi-judicial

or executive. He dealt with the matter thus.

In my opinion, I would say that the function of the President under subsection (1)

of s. 10 of the Land Ordinance is a quasi-judicial function. Because, it seems to

me, the exercise of his discretion under that provisions must be conditioned by

finding of facts such as are set out there under. It basically entails the finding that

the holder of the right of occupancy has committed some wrong in respect of his

title. In my opinion I would say that he is under no duty to act judicially. He could

throughout consider the matter from policy standpoint. I am prepared to accept

that the revocation order in this case was made under subsection (2). I hold that

it was a purely executive action.

638
With regard to this passage of the High Court judgment, we wish to make only

two brief comments. Our first observation is with reference to the trial judge’s

attempt to distinguish the President’s functions under subsection (1) and (2) of

s.10 on the basis of whether his functions were judicial, quasi-judicial or

executive. We think in determing whether the position of the President in the

context o s. 10 of the Land Ordinance is judicial, quasi –judicial or purely

executive, it is necessary to appreciate that the test in the matter is whether there

is a”lis”, i.e ., a contest, as it were, between two sides, as between whom the

president has to come to a determination after consideration of all the facts

placed before him. In the present case we can see nothing in the wording of s.10

which imposes on the President any duty to act judicially or quasi-judicially. As in

our opinion the functions of the President under s. 10 of the Land Ordinance

cannot, even remotely, properly be categorized as being judicial or quasi-judicial

proceedings, we think the learned trial judge erred in thinking that the functions of

the President under subsection (1) of s. 10 were in the nature of a quasi-judicial

proceeding. In any case it seems to us irrelevant in a case such as the present,

to draw the traditional distinction between judicial and or executive functions of

public officials.

A number of eminent judges have held that such a distinction is not longer valid

and should be abandoned. See Re. H. K. (1967) 2 Q.B 617: Padfield v Minister

of Agriculture. Fisheries and Food. (1968) 2 Ch. 149: R.v garming Board. Ex

parte. Benaim. (1970) 2 Q.B. 417

639
Our second observation on the above passage is as regards the issue whether

the decision of the President in this case fell within the ambit of subsection (2) of

s.10. With respect to the learned trial judge, we are unable to find any scintilla of

evidence on record on the basis of which he could have held that the decision of

the President in the case was made under the power conferred on him by

subsection (2) of s. 10. His holding on the matter becomes even more difficult to

understand in view of the reasons stated in Exhibit P2.

We have now to determine if the decision of the President on this matter can be

sustained under subsection (1) of s.10 of the Land Ordinance. The determination

of this crucial point really depends on the true construction of subsection (1). As

we have already observed in this judgment, the power of the President to revoke

rights of occupancy granted under the Land Ordinance is predicated upon certain

conditions being fulfilled or certain evens taking place. Subsection (1) provides

that breach of any one or more of the terms and conditions expressed or implied

in grant of a right of occupancy may constitute good cause for revoking the grant.

The subsection further provides that good cause shall include, among other

maters, non-payment of rates and taxes and the abandonment or non-use of the

land for a period of five years. See paragraphs (a) to (f) of subsection (1) of s.

10.

Mr. Lakha has valiantly argued before us that the reasons given in Exhibit P2

constituted good cause for revoking the grant of a right of occupancy held by

Patman Garments Industries Limited. We are of the view that Exhibit P2 is clearly

against him.

640
Patman Garments Industries Limited have challenged this revocation and have

come before this court seeking a remedy. But can this court interfere with the

President’s decision in this matter?

The learned trial judge answered the question posed in the affirmative. He said:

But then the question poses. Can it be questioned in cout? Professor de Smith

says at pp.61-62 of his book (Judicial Review of Administrative Action) that: “The

validity of the exercise of Ministerial or Administrative powers affecting the legal

interests of an individual is always open to challenge in the courts (no matter the

status of the person who exercises those powers) unless the review has been

excluded, directly or indirectly, by the relvant legislation. If the exercise of the

powers is predicted on findings of law or facts, the correctness of those findings

may be impugned directly or in any appropriate form of collateral proceedings

e.g., by resisting an action for a declaration that the order is nuil and void, and by

suing the actor for a civil wrong.

Now there is nothing in that subsection to show that judicial review has been

excluded and I think therefore, that the court can properly review an order made

under that provisions and where it is established that the order made was made

improperly or mistakenly the court can declare it null and void.

With respect, we think the learned trial judge is correct in saying that courts have

power, which they have always had, to review administrative action which is

challenged before them. While his discussion on the power of the courts to

review administrative action was made with reference to executive functions of

641
the President under subsection (2) of s. 10 of the Land Ordinance, we are of the

firm view that his reasoning on the matter equally applies to a decision made

under the provisions of subsection (1) of the section.

Support for the principle of law stated by the learned author S.A. de Smith, which

has been set out supra, is to be found repeated in all the important cases on thus

subject reported in Law Reports. Suffice here, to refer to only one English

decision which dealt with a matter which is analogous to the case with which we

are now concerned. The case is Congreve v Home Office. (1976) Q.B 629. That

was a case in which the British Home Secretary claimed to revoke the a

television licence- an overlapping licence- for which Mr. Congreve, a solicitor in a

city firm, had paid a license fee of pound 12 in advance. He claimed to revoke

the lincence by a section in an Act of Parliament which gave him a power to

revoke it is certain circumstances. The judge at first instance held that the Home

Secretary could do it but the Court of Appeal held that he could not. In the Court

of Appeal LORD DENNING, M.R., deal with the Home Secretary’s contention as

follows:-

But now the question comes: can the Minister revoke the overlapping license

which issued lawfully? He claims that he can revoke it by virtue of the discretion

given him by s 1(4) of the Act. But I think not. The licensee has paid pound 12 for

the 12 months. If the licence is to be revoked and his money forteited – the

Minister would have to give good reasons to justify. Of course, if the licensee had

done anything wrong-if he had given a cheque for pound 12 which was

642
dishonoured, or if he had broken the conditions of the licence-the Minister could

revoke it. But when the licensee has done nothing wrong at all, I do not think the

Minister can lawfully revoke the licence, at any rate, not without offering him his

money back, and not even then except for good cause. If he should revoke it

without giving reasons, or for no good reasons, the courts can set aside his

revocation and restore the licence. It would be a misuse of the power conferred

on him by Parliament: and these courts have the authority – and, I would add, the

duty- to coreect a misuse resent it or wan us of the consequences if we do.

Padfield v Minister of Agriculture, fisheries and Food. (1968) A.C.997 is proof of

what I say. It show that are bad in law- the courts can interfere so as to get him

back on the right road.

With respect we adopt Lord DENNING’s reasoning in the above passage. We

can find nothing in reason or common sense to indicate that the principle stated

by Lord DENNING is inapplicable to a case involving a revocation of grant of a

right of occupancy.

Now then, applying the accepted principle to the fact of the present case the

position appears to be: while the President has power under subsection (1) of

s.10 of the Land Ordinance to revoke any grant of a right of occupancy for good

cause, he cannot do so unless the conditions prescribed by law for its exercise

are fulfilled. The Act states in no unambiguous terms that: it shall not be lawful for

the President to revoke a right of occupancy granted as aforesaid save for good

couse”. We have, we think, already abundantly demonstrated why the decision

643
made by the President revoking the grant of a right of occupancy held by the

appellants, is bad in law. It is unalwaful because it was made for no good cause

and was therefore, an unlawful exercise ofpower conferred by subsection (1) of

s. 10. We are, of course, full aware of the frantic efforts made by some officers of

the Directorate of Land Development Services to solve the problem created by

them through double allocation of Plot No. 94. Be that as it may, we do not think

the power of revocation conferred under subsection (1) of s. 10 of the Land

Ordinance was meant for the convenience of any of the officers in the Directorate

of Land Development Services.

Mr. Lakha has submitted that the only way to impugn the revocation order was by

way certiorari and that the Attorney General must be included if such an order

was challenged. In our view, both at the trial and at this appeal the central issue

was whether the revocation order was lawful or otherwise. Mr Lakha had both

here and below vigorously argued as to its validity. If Mr. Lakha and/or Land

Officers had wanted the Attorney-General to support the order, they could easily

have done so. The appellants were confronted with the revocation order when

the respondents filed their reply and the appellants book the point that the order

was unlawful. An application by way of certiorari is one of the means not the sole

means, of challenging such an order and we are satisfied that in the

circumstances of this case, the appellants were entitled to challenge the

revocation order in the way it was done.

644
Decree of the High Court and declare that the decision made by the President

revoking the appellant Company’s grant of a right of occupancy over Plot No. 94

Kipawa Industrial Area, Dar es Salaam, was unlawful and, therefore, null, and

void. We declare Patman Garments Industries Limited are the rightful owners of

the right of occupancy over Plot No. 94 L.O No. 46100.

645
IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM

MISC CIVIL CAUSE NO.42 OF 1984

In the matter of application by Simeon Manyaki for leave to apply for an

Order of certiorari and mandamus’

And

In the matter of the Executive Committee and Council of the Institute of

Finance Management

RULING

MAPIGANO. J.

The applicant Simon Maanyaki is a senior accountant with the National Shipping

Agencies. He wants this court to exercise its discretion and grant two orders,

namely (1) an order to certiorari to quash the decision of the Executive

Committee of the Council of the Institute of Finance Management dated 2 may

1984; and (2) an order of mandamus requiring the Council of that Institute to

award him a certificate of Advance Diploma in Accountancy. The application has

been stoutly contested by the Institute.

Most of the salient facts are not in dispute. The applicant was a student at the

Institute in Dar es Salaam, pursuing a course of study in accoundancy conducted

646
by the Institute during the 1983/84 academic year. He and other students sat for

final examinations in January, 1984. sadly an outrage had taken place in

connection with the examination papers and model answers and the

examinations had been extensively leaked. A good number of the candidates

had obtained unauthorized prior access to the examination papers and model

answers. The examiners were not slow to apprehend that there had been such a

leak. It was perhaps inevitable, for some of the candidates were so naïve, nay

thoughtless, that they reproduced the model answers verbatim. It was considered

to be a case where the examination as a whole could not properly be said to be a

reliable measurement tool of acknowledge and expertise of candidates. A

decision was thus made to (1) nullify the results and require the candidate to re-

take the examinations in april, 1984; (2) set up committee to probe the the

leakage and prepare a report; and (3) seek assistance of the state security

organs to investigate the matter. It was also decided that the results of the April

examinations should be tied to and tabled together with the report of the probe

committee and to postpone any disciplinary or punitive action against any

individual who may have been involved in the affair, including the nullification of

the Aril examination results, until the final results of the investigations have been

submitted.

The applicant and the other candidates resat the examinations in early April

when the probe committee that was formed was carrying out investigations. On

27 April, 1984 the applicant was officially informed that he had passed the

647
examinations. Howver, on 2 May 1984 he received a distressing letter from the

Acting Director of the Institute which read as follows:

“THE TERMINATION OF ADVANCED DIPLOMA STUDIES.

1. You may remember that the Institute in January, 1984 encountered

problems in the final examination process of the 1983/84 Advanced

Diploma in Accounting third year students of the fact that a good numbr of

the students in that class had unauthorized access to some of the exam

papers and or model answers. Subsequent to this the Institute set up an

independent probe committee to investigate this whole affairs.

2. The Executive Committee of the IFM Council which set up this

investigation received and deliberated the probe committee report in its

fortieth (extra-ordinary) meeting held on Friday, 1984. According to the

findings and conclusions of this report you are one of the students who are

highly implicated.

3. the Committee noted with grave concern that you are depicted as one of

the primary clique member in your class who participated and/ or assisted

contrary to Institute’s rules o examination and good discipline in the

commercialized distribution and propagation of the examination papers

and/or model answers which leaked. The Committee observed further

that, as if that was not enough, you subsequently did not want to tell the

truth to the investigators’ during the investigation which ensured; you were

nonrepentant: your were intransigent if not arrogant and you were

648
 obdurate if not- thoroughly uncooperative in this investigation. It was noted

also that the wide propagation of the leaked exams caused a lot of

problems to the community and entailed enormous financial costs to the

Institute. All these behavioral patterns, it was observed by the Committee,

are not consistent with good discipline and are contrary to professional

ethics and integrity in your field of training.

4. because of the above reasons the Executive Committee of the Institute’s

Council has decided to terminate your studies at the Institute with

immediate effect and also to bar you from attempting any IFM

examinations in future as well as nullify whatever results you may have

had in this year’s April 2-6 examinations, if you happened to sit for these

examinations etc”.

At this juncture I pause to notice, only to reject, an argument that was advanced

by the applicant to the effect that the Institute had no legal competence to

terminate his studies, nullify his results of the April examinations and bar him

from future enrollment and attempting any of its examinations. For one thing,

examinations such as these, are meant to be honestly and honorably set and

taken for they are contemplated to be, as the Institute observed, a reliable

measurement tool of knowledge and skill of the candidates. For another, it

cannot be denied that the Institute stood embarrassed and disgraced by the leak

and its integrity stood tainted. The leak thus bore viewing the seriousness and

those who were involved in it should surely expect to severely dealt with and

649
visited with deterrent or exemplary penalties. I entirely aree with the Institute that

under both the IFM Act, 1972, in particular section 7 thereof, and the general

rules governing such examinations, it has the discretion to treat the applicant in

the manner it did.

The probe committee that was formed by the Executive Committee of the Council

of the Institute was given the following terms of reference: (1) to find out whether

there was a leakage of the examination; (2) if so, to establish and indicate when,

how, where and by whom the examinations were leaked, what papers and / or

model answers leaked and to what extent, (3) to find out weaknesses, if any, in

the examination administration system that might have contributed to the

leakage, in particular, to examine the circumstances of setting, marking, external

examining and invigilation of examinations; (4) to make observations on the

above points and any others that might be pertinent thereto, draw conclusions

thereof and recommend appropriate action to be taken; (5) to determine and

regulate its proceedings as it deems fit and to co-opt any other person or persons

who in its opinion may facilitate the execution of its tasks.

In discharging its assignment the probe committee examined a host of

documents and conducted interviews with 24 people, who included students,

examiners and officials of the Institute and NBAA , the acronym for National

Board of Accountants and Auditors. It was standard procedure to sent the

650
examination papers to NBAA for moderation. The applicant was one of the

students who was interviewed by the probe committee.

At the conclusion of the investigations the probe committee stated, in sum , that it

profoundly suspected one Chandrasekharan, a moderator with NBAA, and one

Mashenene, a co-ordinator with the Institute, to be the source of the leak. It

opined that either of the two had surreptitiously given one Angela Mpanduji (who

was a candidate the examination papers and that the said Angela had in turn, in

the words of the committee, constituted themselves as distribution agents and

made them available to other candidates in consideration of cash or kind.

The first main question that arises is whether the Counci had authority to

establish the Executive Committee that set up the probe committee, and if the

answer be yes, whether the Executive Committee had competence to exercise

such powers. By paragraph 10 of his affidavit the applicant contends that the IFM

Act, 1972 does not provide for the creation of such a committee and that,

therefore, the creation of the committee by the Council was an illegal exercise of

the applicant has submitted that the only body that could have acted against the

applicant was the Student’s Disciplinary Committee established under rule 37 of

the IFM Student Rules set out in the IFM 1983/84 Prospectus. Against that

submission Miss Mjasiri of the Tanzania Legal corporation, counsel for the

respondent Institute, replied that the Executive Committee had a legal status and

that under the IFM Act the Council enjoyed discretion to establish such a

651
committee. With regard to the IFM Student Rules, it was her argument that those

rules did not apply to academic matters.

As indicated, the Institute was established by an Act of Parliament ie. Act No.3 of

1972. The objects and functions are to be found in section $. By section 6(1) the

Council is the body vested with the governance and control on the part of the

administrative body and the right to a fair hearing for those who are immediately

affected by its decision. And it is common ground that this court has discretion to

intervene and award appropriate reliefs where the rules of natural justice have

not been observed.

Quite clearly, and again it is common ground, the probe committee was

investigating an enormous matter and the authorities must have apprehended

that the effect of its finding was bound to have substantial adverse impact and

consequences on the interests of certain individuals. The applicant is certainly

one of the people who have been detrimentally affected by the findings of the

probe committee. That is patently evident from the severity of the penalties that

were eventually handed out to him by the Executive Committee and by his

employer. I hold the view that the applicant, whose rights and legitimate

expectations stood to be so adversely affected by the inquiry had the right to

have an adequate opportunity of knowing the case he had to meet, of answering

it, of putting forward his own case, and of being fairly and impartially treated. In

other words, he had the right, first, of being sufficiently appraised of the

particulars of the prejudicial allegations that were to be made or had been made

652
against him, so that he could effectively prepare his answer and collect evidence

necessary to rebut the case against him; secondly, subject to the need for

withholding details in order to protect other overriding interests, and in my opinion

there was none here, of being accorded sufficient opportunity of controvert or

commenting on the materials that had been tendered or were to be tendered

against him; thirdly, of presenting his own case, and fourthly, of being given a

reasonable and fair deal.

It matters for nothing that these were proceedings initiated by an Institute of

higher learning. The weight of modern authorities is in favour of the view that

disciplinary proceedings in higher educational institutions have to be conducted

in conformity with natural justice, provided at least the penalty imposed or likely

to be imposed is severe: see R. v. Aston University Senate, Ex parte. Roffey and

Another, (1969) 2 QBD 538, a decision that has been referred to by both sides;

Glynn v. Keele University, (1971) 1 WLR 487, a case of summary suspension

from residence on the campus for disciplinary offence; and more helpful, Ceylon

University v. Fernando (1960) 1 WLR 223, a case of disqualification from degree

for alleged cheating in examination.

With due respect, it is, in my considered opinion, not an exaggeration to say that

the applicant was deprived of his right. It cannot be seriously denied that there is

nothing in the record that shows that he was appraised of the particulars of the

allegations that were to be made or had been made against of the Institute. Now

653
the Executive committee was created by the Council in its meeting held on 24

September 1974. It is a smaller body than the full Council, it being composed of

only half of the members of the Council.

Among other things, the Executive Committee was charged with the functions of

dealing in emergency cases, with such matters as are normally considered by

the Council, in between council meetings. It was expressly stipulated that the

decisions of the that Committee are subject to ratification by the full Council.

In my view section 6 (2)(f) of the IFM Act is wide enough and gives the Council

power to establish such a Committee and to invest it with such authority. I take

the view that this was not an instance of abdication of power by the Council, but

a valid exercise of its statutory discretion. As aforestated, the Council prescribed

that all decisions of that Committtee would be subject to ratification by the full

Council. Essentially, by that proviso the Council retained complete control over

all the functions assigned to the Committee and the Council intended to continue

to address its own mind to the exercise of the powers delegated to the

Committee.

I also take the view that the Executive Committee did not encroach on or usury

the powers of the Students Disciplinary Committee. It is not true that the

Students’ Disciplinary Committee has any powe to deal with academic maters. I

have perused the IFM student rules and I have come to the conclusion that such

654
maters as the leakage of examinations fall outside the purview of those rules. I

am satisfied that the jurisdiction of the Students Disciplinary Committee is

confined to what may be described as domestic matters such as those pertaining

to accommodation, kitchen, drunkness, nuisance and the misuse of music

instruments.

I pass o the second main question, which is whether the proceedings of the

probe committee was conducted in accordance with the rules of natural justice.

The applicant has averred, vide paragraph 11 and 13 of his affidavit, that he was

denied natural justice in that (a) he was not informed, throughout, that he was a

subject of suspicion or investigation; and (b) that he was not afforded opportunity

of being heard. This has been denied by the Institute.

The parties seem to be acutely aware, and it is trite to remark, that an

administrative body exercising functions that impinge directly on legally

recognized interests owes it as duty to act judicially in accordance with the rules

of natural justice, which basically means the adoption of fair procedure, which

fundamentally demands freedom from interest and bias him. It will be

remembered that the probe committee carried out is assignment by ascrutinizing

several documents and interviewing scores of people. I have gone through those

documents and in regard to the applicant. I see nothing damning in them. The

record of the proceedings of the committee shows that it is met on several

655
occasions to conduct the interviews. About the only interviewee complicated the

applicant was one ancilla kilinda.

This Ancilla Kilinda was also a candidate and as the idiom goes, the canry who

sang. She admitted that she had prior access to the examination papers. She

stated that she had purchased the papers from Angela Mpanduji for shs.

1,500She disclosed that the papers se acquired were handwritten. She was had

to examine several sripts and according to the report of the probe committee, she

singled out the sripts of the applicant claiming that they were similar with the

shandwriting on the examination papers she had purchard from Angela

Mpanduji. That was a serious allegation and it was regarded by the probe commit

as high grade information and in no small way led the committee to infer h=that a

applicant was party to the scandle. The committee might be righ. But what is

objectionables that the substance of that adverse information was not put to the

applicant all. He had therefore, no opportunity to deny or admitted ofcourse a

party cannot deny or admit that of which he is unaware. This is not to say,

however, that Ancilla Kilinda was uncandid with the probe committee.

Angela Mpanduji appeared before the probe committee for interview. She did not

in the least implicate any body, let alone the applicant. The information provided

by one or two other candidates was in the last analysis either marginal or what

they had picked up send hand and I am unable to see anything probative in it.

On 5 April, 1984 the applicant was interviewed by the probe committee. I will set

out in extensor what transpired:

656
Q. Can you tell us anything strange or unusual you hear about the exam before

the exam was done?

A. The students worked very had to prepare themselves for the exams. But I

heard no rumous.

Q. Do you have a study group?

A. Yes

Q. Who are you study group?

A. I do not have any specific study group usually study on my ,,,,,,,,,,,,,,,,,,,

Q. Who in your class, have you for example been studying with?

A. It all depends on the topic my group change with the topic

Q. Any girls you are used to in your class?

A. I was used to Maira in first and second year and Angela Mpanduji in third year.

Q. Angela was selling exams did she sell to you also?

A No. I never buy exams, I pass on my own effort

Q. Did you know that Angela was selling exams or she had exams?

A. No

Q . One day you were studying in your room with some colleagues someone

came and knocked at the door. Your tocked him . You were digesting an exam

you had laid hand on.

A. Thi is 100% lie.

Q. When Angela got the papers she was looking for someone to assist her with

solutions. You assisted her.

657
A. That is not true.

Q. is Angela your friend?

A. That is what people think. But she is no more than someone study with

Q But she is surely more than that o you

A yes, at one stage she introduced me to her father and I once escorted her to

the airport when her sister was passing through from Seychelles.

This interchange is drawn from pages 54 and 55 of the report of the probe

committee. On a careful reading one may probably discern some

inconsistencies, even evasiveness, in the answers of the applicant. But as

pointed out supra, there is from start to end nothing in that inter which shows that

the identification of the scripts by Ancilla kilinda intimated, much less announced

to the applicant.

Whats more, its is plain, I think, there is nothing to show that the app. Was

informed that he was one of the distribution agents of the examinations, contrary

to what is deposed in paragraph 7 of the affidavit equally plaint in that there is

nothing that shows that the appl.

658
IN THE HIGH COURT OF TANZANIA\

MAIN REGISTRY AT DAR ES SALAAM

MISCELLANEOUS CIVIL CAUSE NORRRR.5 OF 1995

VIDYADNAR GIRDHARAL CHAVDA RRRRR.APPLICANT

AND

1. THE DIRECTOR OF IMMIGRATION SERVICES

2. HON. MINISTER FOR HOME AFAIRS RESPONDENTS

3. THE ATTORNEY GENERAL

RULING

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

whether this comes has the power to or official. The issue has arison in this way.

The applicant is engaged in a legal battle against a deportation order made

against him by the second respondent, who is Minister for Home Afairs, under

the Immigration Act. On February 2, 1995, he filed before this Court an

application against the Director of Immigration Services (the first respondent).

The second respondent and the 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 1995, for two reliefs, namely; (1) leave

to apply or order of certiorari, mandamus and prohibition, and (2)

659
RRRRRRR..(in the chamber summons the word used is prohibition)

restraining the first two respondents, pending the RRRRRRRR.application

from detaining or deporting RRRRRRRRRR.not be given here the

application for RRRRR..before the application for leave was heard to . Malled

by senior State Attorney, appearing for all the those respondents, strongly

opposed the application for injunction) outstanding that this court, before granting

leave to apply for certiorari, mandamus or prohibition, has no power to grant on

interim or larger I rejected the argument and made an order restraining the first

and second respondents, pending the hearing of the application for injurative

relief, from detaining or deporting the applicant. The tourt

RRRRRR..proceedings” is defined in S. 2(1) of the R.as including

proceedings in this court or a magistrate’s cosuse for the recovery of fines or

penalties, and the phrase proceedings against the government” is defined by the

same subsection 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 section 11 of the Act has no

application where s. 30 of the constitution of the United Republic (constitution) is

applicable. It was the learned advocate’s contention that the constitutional

provision is applicable to the instant application. He dre my attention, citing M.V

Home Office (1993) 3 W.L.R. 433, to the fact that in spite of the fact that s.21 of

the Crown Proceedings Act, 1947, contains prohibitions identical with these

imposed by s. 11 of the Act, the house of Lods decided, in the cited case, that

courts in England have the power to issue coercive orders, including injunctions,

660
against a government minister or department. Section 11 of the Act and s. 21/

English legislation are, save of the for the use of the words “Crown” and

“Subjects” instead of ‘Government” and “private persons” respectively, in pari

material S. 30 of the Constitution deals with limitations upon and the enforcement

and protection of basic rights and duties.

It cannot be doubted that Mr. Mallaba’s preliminary point reaises an issue of

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

Law reform (Fatal Accdients and Miscellaneous Provisions) Ordinance

(Amendment) Act, 1968, the legislation which confers on this Court the power to

grant prerogative orders. While I find Mr. Mkon’s argument concerning s. 30 of

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

Mr. Hallabas’s preliminary point on constitutional grounds. I thin the point can be

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

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, page

375. I proceed, therefore, to consider the merits or otherwise of the non-

constitutional contentions addressed to me did. Proceedings were then brough

on behalf of a against the home office and the Home Secretary alleging contempt

of court in respect of the breach of the undertaking and the ex-parte order

requiring M’s return. Simon Brown J. dismissed this motion on the basis that

since the Crown’s from injunction was preserved by s. 21 of the Crown

proceedings Act, 1947, neither it nor its departments, ministers and officials

661
acting in the course as their duties could be impleaded for contempt of court. The

applicant a ppealed”.

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 would not be issued against the Crown. The Court

went 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

personally guilty of contempt. The house of Lords had to decide two issues of

constitutional import, namely:-

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

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

court for failure to comply with an of court?

The house answered both issues in the affinitive. Their Lordship founded their

decision on two ground; 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 RRRapplications and (iii) non-prerogative reliefs

which may be so granted in an application for prerogative order

(3) on the undesirability of the English law byRRRRRRto wide as to

embro proceedings in which as in the instant application, a temporary

662
injunctive relief is sought? Although in the actual there is an provision

RRRRRR..to s. 31 of the supreme court, Act (of England). I am of the

settled opinion, bearing in mind the definition of term civid proceedings” in

s. 2(2) of the Act, and talaing into accent of the definition of the phrase ‘

proceeding against the government given in the same susbsection, that

the word “civil there has not been used to mean the opposite of criminal.

Thus, constitutional proceedings and proceedings which are instituted

under this court’s supervisory jurisdiction that is to say, the jurisdiction to

supervise statutory and domestic tribunalis, conferred on the court by s.

17 (2) of the law Refors (Fata Accidents and Miscellaneous Provisions)

Ordinance (cap. 360) as amended by the law reform (Fatala accidents and

Miscellaneous Provisions Ordinance (amendment) Act, 1968, most 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 jurisdicition. Any statutory provision

which purports to restrict this courts jurisdiction, including interest

jurisdiction, must, in the interests of everyone living with 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, that the term “Civil proceedings” in the

subsection does not embrace prerogative proceedings. In my opnion, co

11 is related to private law litigation only.

663
Every assuming that the words “civil proceedings” over prerogative proceedings,

I would still regard Mr. Mallab’s contention as untenable in law, because there is

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

to in subsection 11(1) of the Act must. In or considered view, be a relief other

than an injunction and specific performance. I have not the fairltest doubt that to

construe the subsection otherwise would make the words “by way of therein

superfluous. It is a settled anon of statutory interpretation that a statute should be

as constgrued that, if it can be prevented, no clause, phrase sentence or word

shall be superflueous, void or insignificant. See R. v Bishop of chRRRR(1879)

4 C Q BD 245 at p. 261. Unios the necessaty or entractabitlity of language in a

legislation dictates, otherwise it is the duty of a court to all words contained in the

legislation. I saw characteristics subsection 11(1). In opinion , the words by was

of are not, a d. were not intended to be, insignificant in the provision. Those

words were intended to, and de, contraed the meaning to be attached to the

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

would and very addly, 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 espert in

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

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

the subsection was not intended to and does not, extend 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

664
appears to have done, to hold that the word “relief” there includes injunction. I

can see no 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 with to 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, personally 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 are entrusted with the power of governing this country or

determing, 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

puboic 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 prevent that wrong impression of the law being formed. The law should

be there to promote and nect impeda 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 language of Lord Woolf in his speech in H’S

Case supra (at p. 445 II):

Cream stances can occur where it is the interest both of a person the is subject

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

665
be in a position to make an order which clearly sets either what should or what

should not be done by the governments.

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

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 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.

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

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

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

mandamus and prohibition on the ground that the court lacked jurisdiction to

dose I have found a passage in the judgment of Lord Woolf in R. s case, supra,

which if I 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 pp. 463 –

464. reads:

“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

666
the applicant leave to apply review. However, in a case of real urgency, which

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

be undesirable if, in the situation with which carland, J faced he had been

compelled to grant leave because be regarded the case as in appropriate on for

an interim interpretation. In the case of civil proceedings, there is recognition of

the jurisdiction of the court to grant interim injunctions before the issue.

Of a write etc, (see Ord, 29, r,,,(3) and in an appropriate case there should
be taken to be a similar jurisdiction to grant interim injunctions now under Ord.

667
53. The position is accurately set out in note 53/1-14/24 to the Supreme Court
Practice I 1993 where it is stated that:

“Where the case is so urgent as to justify it,

(the judge) could grant an interlocutory
injunction or other interiom relief pending the
hearing of the application for leave to move for judicial
review.
But if the judge
has confused leave to move for judicial review he is
functus
official and has no jurisdiction
to grant from 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 removal of
the application for leave to move for judicial review.”

If I may repeat what I ventured to say in my earlier ruling, there is no room for
doubt 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
Proceedings Act does not stand in the applicant’s path in the instant application.
Ex pt. To autocrats, it must be intolerable that, in a demarcating society like ours,
courts should be impotent to grant a temporary injunction in favour of an
individual who complain of unwarranted or oppressive use of statutory powers by
a government minister or official. It should be made perfectly clear, I think that
this court can halt the bulldozer of the State before it quashes the right of an
individual, company or society.

The preliminary point fails.

B. A. SAMATTA
JAJI KIONGOZI

Delivered this 7th day of March, 1995, in the presence of Mr, Mkono, Counsel for
the applicant, and Mr. Salula, Counsel for the respondents.

668
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