RUAHA UNIVERSITY COLLEGE

FACULTY OF LAW

COURSE-ADMINISTRATIVE LAW (II), RLW 220

2nd YEAR LL.B 2006/07

ASSIGNMENT No. 1

DATE DUE 26th MARCH 2007

QUESTION

When and on what grounds may a person aggrieved by a decision of an

administrative agency seek the order of certiorari to quash the decision of
such agency and how would he go about getting such remedy.

GROUP MEMBERS

S/N NAME SIGNATURE

1 MUNA JOSEPH JEROME
2 PAUL ALPHONCE
3 MWITA NEEMA BHOKE
4 ALEX ANTHONY KAAYA
5 MALITY SCHOLASTICA JOSEPH
6 LUCAS FLORIDA
7 MHIRO N. MARCIA
8 LIPANGILE NASSOR THABITI
9 JAMES LYATUU
10 MWAMBAPA MNAYA SETH
11 CUTHBERT MZINDIKI
12 FRANK TEMU
13 NURU NYONI
CONTENTS

1.0. INTRODUCTION

1.0.1. Meaning of certiorari

1.0.2. Object of certiorari
1.0.3. Conditions for certiorari

1.1. MAIN BODY

1.1.1. When can one apply?

1.1.2. Grounds
1.1.3. Procedure

1.2. BIBLIOGRAPHY

1
1.0. INTRODUCTION

1.0.1. Meaning of certiorari

According to Dr. U.P.D. Kesari1, certiorari is a command or order to an inferior court or

tribunal to transmit the records of a cause or matter pending before them to the superior
court to be dealt with there and if the order of inferior court is found to be without
jurisdiction or against the principles of natural justice, it is quashed.

According to Encarta Encyclopedia Standard, 2004 Certiorari, in common law, writ or

written command issued by a superior court to a lower court, or to a public officer or
public board, having judicial authority that requires the record of the proceedings in a
lower court to be sent to the superior court for review. The higher court studies the record
while the case is still pending and decides whether or not the inferior court is acting in
accordance with the law. Superior courts may use the writ in either criminal or civil cases
to ensure speedier justice. They do not judge the proceedings according to their merits;
they review only the legal aspects of the case, such as whether the lower court has
jurisdiction to try the case. On the basis of its findings, the superior court may remove the
action or proceedings to a higher court for trial.

1.0.2. Object of certiorari

The object of the writ of certiorari is to keep inferior courts and quasi-judicial authorities
within the limits of their jurisdictions; and if they act in excess of their jurisdiction their
decisions can be quashed by superior courts by issuing this writ.

1.0.3. Conditions for certiorari

In the case of R. v. Electricity Commissioners2, Lord Atkin observed:

“Whenever any body of persons having legal authority to determine questions

affecting the rights of subjects and having the duty to act judicially, act in excess
of their legal authority they are subject to the controlling jurisdiction of the King’s
Bench Division exercised in these writs”

From the above observations, it becomes clear that a writ of certiorari can be issued if
the following conditions are fulfilled:

-the judicial or quasi-judicial body must have legal authority,

-such authority must be an authority to determine questions affecting rights of subjects;
-it must have duty to act judicially; and
-it must have acted in excess of its jurisdiction.

1
LECTURES ON ADMINISTRATIVE LAW, p 302
2
(1924) 1 K.B 171: 93 LJKB 390

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1.1. MAIN BODY

1.1.1. When can one apply?

First of all, for one to apply for an order of certiorari it must be proved that the body
which decided the matter wrongly had legal authority, such authority must be an
authority to determine questions affecting rights of subjects, it must have duty to act
judicially, and it must have acted in excess of its jurisdiction. Then the said body must
have determined the matter in such a way that his interests or rights have been affected.
This will provide the aggrieved party with locus standi. After all these circumstances
have been properly determined, then the aggrieved party may, subject to the other
procedures, apply to the High Court for the order of certiorari.
The order should be sought when the matter is fait accompli because this writ is
corrective in nature.

1.1.2. Grounds

A writ of certiorari certiorari may be issued on the following grounds:

(i) Error of jurisdiction

This happens when an inferior court or tribunal acts without jurisdiction, in excess of its
jurisdiction or fails to exercise jurisdiction vested in it by law. In the case of R. v.
Minister of Transport3 , the Minister was not empowered to revoke a license and yet he
passed an order of revocation of the license. The order was quashed on the ground that it
was without jurisdiction and therefore, ultra vires. Under the provisions of the Industrial
Disputes Act, 1947, the appropriate Government is empowered to refer and ‘industrial
dispute’ to a tribunal constituted under the Act. But if the Government refers a dispute to
the Industrial Tribunal for adjudication which is not an ‘industrial dispute’ within the
meaning of the Industrial Disputes Act, 1947, the tribunal has no jurisdiction to entertain
and decide such dispute.

(ii) Jurisdictional fact

This may arise from absence of some preliminary facts which must exist before a tribunal
exercises its jurisdiction. They are known as ‘jurisdictional’ or ‘collateral’ facts. The
existence of these facts is a condition precedent to the assumption of jurisdiction by an
inferior court or tribunal. In other words, facts upon which an administrative agency’s
power to act depends can be termed ‘jurisdictional fact’ and the absence of such facts
signify that the court or tribunal can not act. If the court or tribunal wrongly assumes the
existence of such fact, a writ or certiorari can be issued. In the case of M.P. v. D.K.
Jadav4, under the relevant statute all jagirs, including lands, forests, trees, tanks, wells etc.
were abolished and vested in the state. However, all tanks, trees, private wells and

3
(1934) 1 K.B 277: (1933) All ER 609
4
AIR 1968 SC 1186: (1968) 2 SCR 823

3
buildings on ‘occupied land’ were excluded from the provisions of the statute. If they
were on ‘occupied land’ they stood vested in the state. The Supreme Court held that the
question whether the tanks, wells, etc. were on ‘occupied land’ or on ‘unoccupied land’
was a jurisdictional fact.

Similarly in the case of Shauquin Singh v. Desa Singh5 , the relevant statute empowered
the Chief Settlement Commissioner to cancel an allotment of land if he was ‘satisfied’
that the order of allotment was obtained by means or ‘fraud’, false representation or
concealment of any material fact. The Supreme Court held that the satisfaction or the
statutory authority was a jurisdictional fact and the power can be exercised only on the
existence thereof.

(iii) Error apparent on face of record

A writ of certiorari can be issued against a decision of an inferior court or tribunal if

there is an error of law which is apparent on the face of the record. Such error must be
manifest or patent on the face of the proceedings and should not require to be established
by evidence.

According to C.K. Takwani6, if an inferior court or a tribunal takes into account irrelevant
considerations or does not take into account relevant considerations or erroneously
admits inadmissible evidence or refuses to admit admissible evidence or if the finding of
fact is based on no evidence, it can be said that there is an error. In short, ‘the impugned
conclusion should be so plainly inconsistent with the relevant statutory provision that no
difficulty is experienced by the High Court in holding that the said error of law is
apparent on the face of the record’

In the case of Kays Concern v. Union of India7 , the Central Government disposed of an
appeal from the State Government under rule 54 of Mineral Concession Rules. The
government decided the matter without applying its mind to an important consideration
which was dully brought to its notice. The court quashed the government’s order on the
ground that because of non-application of its mind to a material circumstance, the order
suffered from a patent error of law.

The case of Gujarat Steel Tubes v. Mazsoor Sabha8 , the court emphasized that, every
order or wrong can not be corrected merely because it is wrong. It can be quashed only if
it is vitiated by the fundamental flaw of gross miscarriage of justice. Absence of legal
evidence, perverse misreading of facts, serious errors of law on the face of the order,
jurisdictional failure and the like.

Dr. U.P.D. Kesari9 further clarifies this point that, certiorari is not issued on the ground
of error of fact, however grave it may be. But where a tribunal has reached a finding on
5
(1970) 3 SCC 881: AIR 1970 SC 672
6
LECTURES ON ADMINISTRATIVE LAW, p 323,
7
AIR 1976 SC 1525.
8
AIR 1978.
9
LECTURES ON ADMINISTRATIVE LAW, p 315

4
such evidence which is legally inadmissible, or has refused to admit admissible evidence,
or if the finding is not supported by any evidence at all, although it would amount to an
error of fact, it can be treated as an error of law.

(iv) Fraud

The Supreme courts have an inherent jurisdiction to set aside orders and convictions
made by inferior tribunals if they have been procured by fraud or collusion. Where fraud
is alleged, the Court will decline to quash unless it is satisfied that the fraud was clear and
manifest and was instrumental in procuring the order impugned.

(v) Violation of Natural Justice

The doctrine of natural justice includes three rules namely; (i) rules against bias i.e.
nobody should be a judge in his own cause; (ii) rule of audi alteram partem i.e. nobody
should be condemned unheard; (iii) reasonable opportunity to know the cause of
condemnation.

In the case of Jimmy David Ngonya v. National Insurance Corporation Ltd 10 , The
applicant was dismissed from employment as a branch manager of the respondent
corporation. The Board of Directors dismissed him on the basis of an audit report whose
contents were never shown to the applicant to enable him to contradict them. When the
Board of Directors met to deliberate on the applicant's case, the General Manager, who
had initiated the proceedings against the applicant and had commissioned the audit, was
present but the applicant was absent. The applicant applied for certiorari and mandamus
arguing that his dismissal was in contravention of the rules of natural justice. The court
inter alia granted the order of certiorari and held that,

(i) Since the audit report was prejudicial to the interests of the applicant and it formed the
basis of the decision of the Board, it ought to have been shown to the applicant for his
comments and for an opportunity to contradict its contents; failure to do that contravened
the right of the applicant to be heard;

(ii) Since the General Manager, who was in the nature of a prosecutor, was present during
the deliberations of the Board which dismissed the applicant, the proceedings of the
Board were vitiated by bias.

1.1.3. Procedure

In Tanzania the power to issue the order of certiorari is vested in the High Court by
virtue of section 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Act, cap 310.

10
[1994] T.L.R. 28 (HC)

5
The applicant must first file and ex parte chamber application in the High Court for leave
to file an application for judicial review. Such an ex parte application should be
accompanied by a copy of the intended application for judicial review as an annexure that
is intended to enable the court determine whether intended judicial review has substance
and whether that is one within the competence of the court. The applicant must convince
the court to form an application that the intended application for judicial review is about a
complaint that is of substance or sufficiently founded affecting the rights or interests of
the applicant thus the applicant has to show the court that he has ‘locus standi’ . Such
application for leave will be denied or refused where it appears that the intended
application for judicial review is either frivolous or vexatious or misconceived. Leave
may also not be granted if it turns out that the proceeding for such application has not
been brought promptly enough. This signifies a matter of time within which the
application can be made. Here either the Limitations Act or the specific provisions of the
applicable law will be considered. Once the application has been granted then the normal
procedure for instituting the application for judicial review and prosecuting the same will
be set in motion up to the determination of the application.

By virtue of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act cap
310, section 18 provides that the Attorney General or his representative must summoned
as party to such proceedings in case the order is sought against the Government. This is
also a Constitutional requirement. If they fail to appear the hearing may proceed ex parte.

6
1.2. BIBLIOGRAPHY

C.K. Takwani, LECTURES ON ADMINISTRATIVE LAW, 3rd Edn, Eastern Book

Company Lucknow

Dr. U.P.D. Kesari, LECTURES ON ADMINISTRATIVE LAW, Central Law Agency

John Alder, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 5th Edn, Palgrave

Macmillan Law Masters

Encarta Encyclopedia Standard, 2004