The doctrine of ultra vires requires that actions of whoever conferred with legal powers to be

within the confines of the law. A person or body that is given powers must follow the law and
not otherwise. The doctrine covers both substantive and procedural aspects related to the exercise
of power.

When discretionary power is conferred on an administrative authority, it must be exercised

according to law. When the mode of exercising a valid power is improper or unreasonable, there
is an abuse of the power.

There are several forms of abuse of discretion, e.g. the authority may exercise its power for a
purpose different from the one for which the power was conferred or for an improper purpose or
acts in bad faith, takes into account irrelevant considerations and so on. These various forms of
abuse of discretion may even overlap. Take the classic example of the red-haired teacher,
dismissed because she had red hair. In one sense, it is unreasonable. In another sense, it is taking
into account irrelevant or extraneous considerations. It is improper exercise of power and might
be described as being done in bad faith or colorable exercise of power. In fact, all these things
‘overlap to a very great extent’ and ‘run into one another.’

It is usually emphasized that power will only be exercised by a person to whom that power is
given by a statute. Thus, any person or body which seeks to exercise public power must be able
to justify the exercise of that power through the law. In other words, the powers exercised must
have been conferred on him or it by the law. In the Municipal Board of Mombasa v. Kala 1, the
Municipal Board of Mombasa was empowered by a statue to supervise all matters of town
planning of its locality. It had power to demolish houses. The house (which belonged to Kala)
was certified as dangerous and had to be demolished. The enabling statute required a notice to be
served on the owner before demolition. A notice was served by the engineer but Kala did not
comply with it. On expiry of time, the house was demolished. Kala sued the municipal Board for
trespass.

Held: The power to demolish buildings was conferred to the board but not to the engineer. There
was no indication that the engineer was acting on behalf of the board.

1
[1955]22EACA, 319
™ The engineer could not exercise the powers which were not legally vested in him. He had no
such powers; he could thus not serve the notice to demolish the building.

Excess or abuse of discretion may be inferred from the following circumstances: Acting without
jurisdiction, Exceeding jurisdiction, Arbitrary action, Irrelevant considerations, Leaving out
relevant considerations, Mixed considerations, Mala fide, Collateral purpose, Improper object,
Colourable exercise of power, Colourable legislation, Fraud on Constitution , Non-observance
of natural justice,Unreasonableness.

EXCEES OF POWERS

Excess of jurisdiction

•The powers conferred on administrative authority must be exercised only within the ambits of
the law. If the limits are exceeded, then the exercise of such power is ultra vires.

It is not permissible for a person or authority that is vested with public power to exceed or
overstep the boundaries of such powers. The excess of powers will be declared by the court as
void. In an English case of White and Collins v. Minister of Health 2, a local authority had
authority to acquire land that did not form part of a private “park.” An order was made and
confirmed by the Minister but the validity was questioned in the High Court on the ground that
the land which was the subject of the order was in fact part of a park. The Court quashed the
order as ultra vires.

In Sheikh Mohamed Nassor Abdulla v The Regional Police Commander, Dar es Salaam and two
others3, an application was made in the High Court for directions in the nature of habeas corpus.
The applicant was deported to Zanzibar from Tanzania Mainland under an order by the
President. The order which was made under the Deportation Ordinance Cap 38, was challenged
in the High Court on the ground that the President exceeded his powers under the Ordinance.

Held (Mapigano, J): (i) Section 2 of the Deportation Ordinance empower the President to deport
a person from one part of the Territory to any other part of the Territory;

(ii) Under section 3 of the Interpretation of Laws and General Clauses Act, 1972 the word
Territory means Tanganyika;
2
[1939]3 All ER 548
3
[1985] TLR 1
(iii) The President has no power under the Deportation Ordinance to order deportation of a
person from Tanzania Mainland to Zanzibar; therefore, the deportation order was illegal.

In another case, Jama Yusuph v Minister for Home Affairs4, a deportation order was made against
the Applicant (Mohamedi Jama Yusuph), who was a Tanzanian of Somali origin. The Minister
made a deportation order against him on 10th April, 1989. The Minister's deportation order was
made under s.24 of the Immigration Act, 1972, and it was served on the applicant on 19th April,
1989, after he was arrested on 17th April, 1989. The applicant challenged that order in the High
Court by seeking an order of certiorari to quash a deportation order.

Partly held (Kyando, J.): “I am satisfied beyond doubt myself that the applicant is a citizen of
Tanzania. Is the Minister then justified in ordering his deportation from this country? I
unhesitatingly hold that he was not: he acted beyond his power in making the deportation order
against the applicant and acted plainly in breach of the provisions in the Immigration Act, 1972,
which empower him to make deportation orders. These provisions do not empower him to deport
Tanzanian citizens, like the applicant, from the country. His order of deportation against the
applicant was therefore contrary to law, as shown above, and I have, as I hereby do, to quash it,
by certiorari, as prayed in the application filed by the applicant in this court.”

Acting without jurisdiction

It is well-settled that there can be no exercise of power unless such power exists in law. If the
power does not exist, the purported exercise of power would be non-existent and void. Likewise,
where the source of power exists, exercise of it is referable only to that source and not to some
other source. But if a source of power exists, mention of wrong provision or even omission to
mention the provision containing such power will not invalidate such order.

In R. v. Minister of Transport, even though the Minister had no power to revoke the licence, he
passed an order of revocation. The action was held ultra vires and without jurisdiction. Similarly,
if the appropriate government has power to refer an "industrial dispute" to a tribunal for
adjudication, it cannot refer a dispute which is not an industrial dispute. Again, if a taxing

4
[1990] TLR 80
authority imposes tax on a commodity exempted under the Act, the action is without authority of
law.

Arbitrary Action

If the action complained of is arbitrary, discriminatory, irrational, unreasonable or perverse, it

can be set aside in exercise of power of judicial review. In Barium Chemicals Ltd. v. Company
Law Board, formation of opinion by the Central Government was held arbitrary and
unreasonable. Irrelevant Considerations

A power conferred on an administrative authority by a statute must be exercised on the

considerations relevant to the purpose for which it is conferred. Instead, if the authority takes
into account wholly irrelevant or extraneous considerations the exercise of power by the
authority will be ultra vires and the action bad.

It is settled law that where a statute requires an authority to exercise power, such authority must
be satisfied about existence of the grounds mentioned in the statute. The courts are entitled to
examine whether those grounds existed when the action was taken. A person aggrieved by such
action can question the legality of satisfaction by showing that it was based on irrelevant
grounds. Thus, the existence of the circumstances is open to judicial review.

This may, however, be distinguished from mala fide or improper motive inasmuch as here ‘the
irrelevant considerations dominate not because of any deliberate choice of the authority but as a
result of the honest mistake it makes about the object or scope of its powers.’

Thus, when the red-haired teacher was dismissed because she had red-hair, Of because the
teacher took an afternoon off in poignant circumstances, or that the teacher refused to collect
money for pupils' meals, the action is bad in law

Leaving out Relevant Considerations

As discussed above, the administrative authority cannot take into account irrelevant or
extraneous considerations. Similarly, if the authority fails to take into account relevant
considerations, then also the exercise of power would be bad.

In Ashadevi v. Shivraj, an order of detention was passed against the detenu under the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
(COFEPOSA). The order was based on the detenu's confessional statements made before the
Customs authorities. But the said confessional statements were subsequently retracted by the
detenu before the order of detention. The Supreme Court held that the question whether the
earlier statements recorded were voluntary or not was a ‘vital’ fact which ought to have been
considered by the detaining authority before passing the order of detention. But if such retraction
is an afterthought, it will not vitiate subjective satisfaction.

Relevant and Irrelevant Considerations

As provided in the preceding sub-section, reaching at a decision on the basis of irrelevant

considerations, or by disregarding relevant considerations, is one of the manifestations of
irrationality. So, as stated in the case R v Secretary of State for Social Services, ex parte
Wellcome Foundation Ltd5 it is a reviewable error either to take account of irrelevant
considerations or to ignore relevant ones, provided that if the relevant matter has been considered
or the irrelevant one is ignored, a different decision or rule might (but not necessarily would)
have been made. According to Cane, many errors of law and fact involve ignoring relevant
matters or taking in to account of irrelevant ones. Ignoring relevant considerations or taking
account of irrelevant ones may make a decision, or rule unreasonable in accordance with
statutory policy.

As Cooke J pointed out in the case Ashby v. Minister of Immigration6, considerations may be
obligatory i.e. those which the Act expressly or impliedly requires the Minister to take into
account and permissible considerations i.e. those which can properly be taken into account, but
5
[1987] 1 WLR 1166,
6
[1981] 1 NZLR 222 at 224
do not have to be.7 Where the decision-maker fails to consider those obligatory considerations
expressed or implied in the Act, the decision has to be invalidated. Whereas, in the case of
permissive considerations, the decision-maker is not required to strictly abide to such
considerations. Rather, the decision-maker is left at discretion to take the relevant considerations
having regard to the particular circumstances of the case by ignoring those irrelevant ones from
consideration. According to Cane, the number and scope of the considerations relevant to any
particular decision or rule will depend very much on the nature of the decision or rule. Citing the
opinions of different authorities he writes:

For example, licensing authorities are normally required to consider not only the interests of the
applicant and of any objectors but also of the wider public. By contrast, for example,

decisions about individual applications for social security benefits are usually to be made solely
on the basis of considerations personal to the applicant. 8 It should be noted, however, that the
courts do not, under this ground of review, engage in „hard-look‟ review (as it is called in the
United States [Id. P 314-420]); they do not require decision-makers to show that they have
considered all relevant available evidence and that the decision made is in the light of that
evidence, a rational way of achieving desired policy goals. All that the courts do is to decide
whether the particular consideration(s) specified by the complainant ought or ought not to have
been taken into account. (Cannock Chase DC v Kelly9. In effect, under this head the courts only
require the decision-maker to show that specified considerations were or were not adverted to. In
technical terms, the burden of proof is on the applicant, but the respondent will have to provide a
greater or less amount of evidence as to what factors were or were not considered and how they
affected the decision. A mere catalogue of factors ignored or considered may not be enough: R v
Lancashire CC, ex parte Huddleston10. Decision-makers are not required to conduct
comprehensive pre-decision inquiries or to justify the decision made in the light of the relevant
and available material. Some academics argue strongly that English courts should follow
something like the hard-look approach, but judges are unlikely to do so for fear of being seen to
be interfering unduly with the policy choices of decision-makers.

7
(Cited in Wade & Forsyth, p.381.)
8
D. Galligan, Discretionary Powers (1986), 188-195).
9
[1978] 1 All ER 152.
10
[1986] 2 All ER 941
It is suffice to say that where the decision-maker fails to take relevant considerations into
account but takes those irrelevant ones, there is high probability that the outcome of the decision
may be affected by defects than not. So, the interference of the court to review such kind of
decisions seems justifiable.

Irrelevant consideration

Statutory power must be exercised on the basis of the ground under the statute. If the authority
takes into consideration irrelevant considerations or extraneous considerations, the exercise of
such power will be ultra vires. Similarly, where the authority leaves out relevant considerations
the exercise of power will be bad.

Mixed Considerations

Sometimes, a peculiar situation arises. Here the order is not wholly based on extraneous or
irrelevant considerations. It is based partly on relevant and existent considerations and partly on
irrelevant or non-existent considerations.

There is no uniformity in judicial pronouncements on this point. In some cases, it was held that
the proceedings were vitiated, while in other cases, it was held that the proceedings were not held
to be bad. It is submitted that the proper approach is to consider it in two different situations:

• Conclusions based on subjective satisfaction; and

• Conclusions based on objective facts.

Collateral purpose: Improper object

A statutory power conferred on the authority must be exercised for that purpose alone and if it is
exercised for a different purpose, there is abuse or power by the authority and the action may be
quashed. Improper purpose must be distinguished from 'mala fide' exercise of power. In the
latter, personal ill-will, malice or oblique motive is present, while in the former it may not be so,
and the action of the authority may be bona fide and honest and yet, if it is not contemplated by
the relevant statute, it may be set aside.
In other words, “a power used under the misapprehension that it was needed for effectuating a
purpose, which was really outside the law or the proper scope of the power, could be said to be
an exercise for an extraneous or collateral purpose.”

In Nalini Mohan v. Distt. Magistrate, the relevant statute empowered the authority to rehabilitate
the persons displaced from Pakistan as a result or communal violence. That power was exercised
to accommodate a person who had come from Pakistan on medical leave. The order was set
aside

Improper motive/purpose

This is where the authority, though not actuated by ill-will, it exercises in good faith its power
but not for the purpose intended in the statute but for different purpose. That is to say the power
has been used for collateral purpose.

In Shaban Nassoro vs Tanzania Portland Cement 11, where the Minister’s decision overturning
the Board’s decision to reinstate an employee was made without jurisdiction and was contrary to
section 51 of the Security of Employment Act;

In Said Juma Muslim Shekimweri vs Attorney General12, where the President’s decision to retire
an immigration officer in the public interest was quashed for being contrary to the law. The
Court (Samatta JK as he then was) held that the common law principle that a civil servant is
dismissible at the pleasure of the President was not part of the Law of Tanzania.

Unreasonableness

A discretionary power conferred on an administrative authority must be exercised by that

authority reasonably. If the power is exercised unreasonably, there is an abuse of power and the
action of the authority will be ultra vires. The term 'unreasonable' is ambiguous and may include
many things, e.g. irrelevant or extraneous considerations might have been taken into account by
the authority or there was improper or collateral purpose or mala fide exercise of power by it or
there was colourable exercise of power by the authority and the action may be set aside by
courts. The concept of reasonableness and non-arbitrariness pervades the entire constitutional

11
[1996]TLR 96
12
[1997] TLR 3
scheme and is a golden thread which runs through the whole of the fabric of the Constitution.
Judicial review of administrative action is a basic feature of the Constitution. In Air India v.
Nergesh Meerza, a regulation framed by Air India empowering termination of services of an Air
Hostess on her first pregnancy was held to be extremely arbitrary, unreasonable, and abhorrent to
the notions of civilized society and interfereing with the ordinary course of human nature.

Unreasonableness

• The term unreasonable is ambiguous and one cannot get an express definition of it. It is
normally referred according to the circumstances of each case. This term may include irrelevant
or extraneous considerations, improper or collateral purpose, etc.

• The test normally is whether a reasonable man could have come to a decision in question
without misdirecting himself or the law or the facts in material respects. If the conclusion is so
unreasonable then the court will intervene.