Prepared by Ndelwa, L and Punge, I.

May 2010
TUMAINI UNIVERSITY
IRNGA UNIVERSITY COLLEGE

LAW 212: ADMINISTRATIVE LAW II

INSTRUCTIONS
i. These questions are for the Administrative Law Seminars to be done and presented in
class by LL.B2
ii. These questions are to be done in groups, numbers of the groups are as hereunder
attached
iii. Assessment will be done based on the following criteria:
iv. Logical and sound reasoning, Organization of the work, research done, references used
(statutes, case law, books, journals, websites, etc)
v. Footnotes and bibliography should be used its writing should adhere to the Chicago
Manual of Style
vi. Seminars will commence on 27th May 2010 in which the seminar leader will pick any of
the group to present their work.

SEMINAR QUESTIONS
Question One (GROUP No. 4)
“The word exception is a misnomer in the context of rules of natural justice, but there is a
concept that natural justice is a pragmatically flexible and amenable to capsulation under
compulsive pressure of circumstances. In these exclusionary cases natural justice is held
inapplicable not by way of an exception to a ‘fair play in action’, but because nothing unfair can
be inferred by not affording a party an opportunity or meet a case. But these situations must be
few and exceptional in every civilized society.”
Explain and discuss the above postulation

Question Two (GROUP No. 16 and No 1)

Azania is a peaceful country, which is located in Africa. To the South is bordered by Bungo Land
and Mbinu countries, to the North is bordered by Longo Longo land which is known to have no
government for the past twenty years and is ruled by war Lords who run towns as their own
private properties. Azania has faced a serious immigration problem since 2000 as immigrants
from neighbouring counties pour to the country in increasing numbers in search of better life.
Some of the immigrants had permission to enter, but the majority did not. For some years up
until May 20, 2008, the government of Azania followed the "reached base" policy, under which

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illegal immigrants from Bungo Land and Mbinu were not repatriated if they managed to reach
the urban areas Dasilam and Idodomya without being arrested.

On March, 11, 2010 the Director of Immigration Department of Azania informed the Special
Parliamentary Committed that the number of illegal immigrants from neighbouring countries
was 10,000/= in 2000 and in 2004 over 99,000. In 2007 up until October 2,358,400 illegal
immigrants from neighbouring countries have reached the base of Azania. A further 80,700 failed
to reach base and were repatriated to their respective countries, and in addition 58,000
immigrants entered Azania legally.

The total population of Azania rose from sharply by 2010 and the government had to take urgent
measures to curtail the flood of immigrants. On April 21, 2010, it announced that the "reached
base" policy would be discontinued forthwith, and the next day the parliament passed and the
president signed the Immigration (Amendment) Act No 20 of 2010 which amended the
Immigration Act of 1981 ("the principal Act ") so that it (i) required all residents of Azania to
carry proof of identity, (ii) prohibited the employment of illegal immigrants and (iii) conferred
upon the Director of Immigration a power to make removal orders under section 19.

Following the amendments it is without doubt that the Director of Immigration had power under
section 19 to order removal of illegal immigrants. There is also no doubt that neither that section,
nor any other statutory provision, expressly requires an inquiry to be held before such an order is
made.

Briefly Section 19 provides inter alia as follows:

"(1) A removal order may be made against a person requiring him to leave Azania - (a) subject to
subsection (3), by the President if it appears to him that that person is an undesirable immigrant
who has been ordinarily resident in Azania for less than three years; or (b) subject to subsection
(2), by the Director if it appears to him that that person - . . . (ii) has committed or is committing
an offence under section 38 (1) or section 41, whether or not that person has been convicted of
such offence and whether or not the time within which any prosecution may be brought has
expired. . . ." Under section 38 (1) of the Act a person commits an offence if, having landed in
Azania unlawfully, he remains in Azania without the authority of the Director of Immigration.

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Wa Mbinu is a citizen of Bungo Land and is tired of his home country he decided to flee to
Azania as an Alien without permission and contrary to the laws of the Azania in 2002 He came to
the notice of the authorities in Azania only in 2003 when he applied for an identity card, and he
was removed to Bungo Land under a removal order in March 2004. In April 2004 re-entered
Azania illegally and he has remained there until the present time. He was apparently an
industrious worker and by 2007 he had become part owner of a small garment factory along with
the registered proprietor.

The change of the policy that announced on by the government of Azania on April 21, 2010, was
followed by a series of television announcements explaining that all illegal immigrants from
neighbouring countries would be liable to be repatriated. On April, 28, 2010, a group of illegal
immigrants who had entered Azania from Bungo Land submitted a petition to the Immigration
Department’s Office asking as for the government of Azania not to repatriate them, a senior
immigration official read out to them a series of questions and answers which had been prepared
in the office of the Secretary for Security, dealing with the position of such persons and the
actions which they should take. One of the questions, with its answer, was:

"Q. Will we be given identity cards? A. Those illegal immigrants from Bungo Land will be
treated in accordance with procedures for illegal immigrants from anywhere other than
Bungo Land. They will be interviewed in due course and will be asked whether there were any
humanitarian reasons or other special factors, which he would like to be taken into account
before a decision was reached. No guarantee can be given that you may not subsequently be
removed. Each case will be treated on its merits."

Wa Mbinu was not present outside the Immigration Department’s Office and did not hear the
announcement and the questions and answers, but he did see a television programme about the
subject on the evening of April 28. Earlier that day he had gone to an office of the Immigration
Department to register with the department and had been told to report to the Immigration
Clearance Office on April 29. He did so and, after being interviewed by an immigration officer
there, he was detained under powers contained in section 26 (a) of the Immigration Act, pending
inquiry for the purpose of the Act. He was detained until April 30. On May 3, the Director of
Immigration made a removal order against the applicant. Wa Mbinu appealed to the Immigration

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Tribunal as mandated by the law, but the tribunal dismissed his appeal summarily, he was
notified of the tribunal's decision on May 5, 2010.
Now Wa Mbinu has retained you as his advocate, taking into consideration that the Azania laws
are the same as Tanzanian laws
(a) Advice him if any of his rights were violated
(b) Laws applicable
(c) If there are any remedy (s) which can be sought in the circumstances of this case.
(d) The Court to which an application for such remedy (s) can be made and whether it is
mandatory for the Court to issue a remedy.
(e) Procedures to be followed
(f) Draw the necessary documents

Question Three (GROUP No. 14 and 5)

Read the following scenario carefully and then answer the questions that follow:

37 girls were pupils at a Private Secondary School called Pompo Special Girls Secondary
School.
In January 2009 the school presented their names to the national Examination Council for the
form four final examinations in August the same year. They were accordingly registered as
candidates for the Certificate of Secondary School Examinations.
The Examination was conducted as scheduled. Nothing seemed untoward until the National
results were announced in December, 2009. The Applicants herein did not get their results.
Instead the Council by a letter addressed to the Head Teacher informed the School that the results
of 30 candidates had been cancelled allegedly because the affected candidates had been involved
in “collusion” while sitting Chemistry Paper. Only three (7) candidates out of 37 at the School
received their results.
The letter briefly stated that:
“The examination results for the candidates whose index numbers are shown below have been
cancelled in the subject(s) indicated because they were involved in an examination irregularity.
Please bring this to the attention of the candidates affected.”

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This was shocking news to the applicants. Upon this information a number of members of Board
of the school, some parents along with few teachers of the School traveled to the Council
Headquarters and held a meeting with the Council. That at this meeting, they met the Deputy
Secretary of the Council who said that suspected collusion affecting the 30 candidates was
detected during the marking of the Chemistry Paper specifically in relation to question 1, Table
2, Procedure B thereof where the affected candidates had all allegedly recorded the same titer
average of 20 cm3
In short the meeting proved futile. Thereafter, the parents decided to engage a flamboyant
advocate in town who wrote the following letter of demand:

RE: Demand for the Release of Results for 2009 Form Four Candidates for Pompo
Special Girls Secondary School.
We have been retained by the Board of the anove-mentioned school with instructions
to write to you and address you as hereunder;-
THAT vide a letter addressed to the Head teacher and Secretary of the Board of the
aforementioned school, you stated that the examination results for 30 candidates out of
the total 37 candidates had been cancelled following an alleged examination
irregularity which you referred to as “collusion in respect of the Chemistry subject”.
Our clients have been to your offices seeking clarification thereon and specifically the
particulars of the alleged collusion but you have neglected, refused and/or declined to
give any explanation to justify the taking of such action without giving the affected
students a hearing. You are well aware of the fact that as a public body you are legally
duty-bound to give all relevant parties a hearing before a decision of that nature can be
arrived at. The unilateral action taken by your institution breached this fundamental
requirement of natural justice. Full particulars of the aforesaid breach are well within
your knowledge.
Our instructions are therefore to demand, which we herby do, that you forthwith
rescind your aforesaid decision and release the examination results for all students
without any delay.

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TAKE NOTICE that unless you unequivocally rescind the decision within the next
two (2) days from today’s date we have firm and mandatory instructions to institute
judicial review proceedings against you for various orders.
Needless to add that such action shall be at your own peril as to costs and incidental
consequences”

The later of demand was not replied. The parents have decided to institute judicial review
proceedings and they instructed their advocate to do so immediately.
Assist the advocate on the following:
1) Applicable laws

2) How to sue

3) Where to file the application

4) Procedures to be followed

5) Grounds to be established and proved

6) Reliefs to be prayed for

7) Draw necessary documents or mention and describe the necessary document to be

filed in court

Question Four (GROUP No 3 and 9)

Gold Land is a Commonwealth country. In 2008 its government decided that, all suspected
economic saboteurs be arrested and their property seized. They were to be tried before special
tribunals established in every region. The decisions of this tribunal were to be final and
conclusive. For the purpose of carrying out the duty of implementing the policy decision in
question, there was enacted the Economic Sabotage Act, 2008. It was the Regional branch of
the government that had to decide who the suspected economic saboteurs were. That means, it
was the Regional Commissioner and his/her supporting staff who made the appropriate
decisions and the implementation of the law.

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Tajiri was arrested on 15th May 2009 and some substantial properties of his were seized. He
was charged with hoarding property before the special tribunal but was acquitted by the
special tribunal and it was further ordered by the tribunal that the seized property be
restored to him. The government officials involved (RC & RPC) are yet to comply with the
order of the tribunal.

Now Tajiri comes to you for legal advice on the following:

a) If there is any prerogative remedy which can be sought in the circumstances of
this case.

b) Laws applicable

c) The elements which must be proved for such remedy to issue

d) A person with locus standi to apply for such remedy

e) The court to which an application for such remedy should be made and
whether it is mandatory for the court to issue the remedy.

f) Draw necessary documents to be filled in the Court of Law

Question Five (GROUP No. 13 and 18)

John Malingumu brother of Sikitu Malingumu and James Malingumu goes to Mega Law
Chamber, and stated before advocate that Sikitu Malingumu and James Malingumu were arrested
in 1/1/2009 on allegations that they were habitual criminals but no charges were preferred
against them. After he complained to the authorities they, were released in 3/5/2009. The two
were arrested again on 24/3/2010 on allegations that they were in possession of ammunitions but
no ammunitions were found in their possession. Again, no charges were preferred against them.
After John Malingumu complained to the Police, the Police issued a Photostat copy of the 2008
deportation order claiming that that there had been a deportation order against them and more
than 100 others in 2008, there were evidence that Sikitu Malingumu and James Malingumu were
actually arrested in 8/8/2008 but they and were released towards the end of 2008.

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Assist the advocate on the following:

1) Applicable laws

2) Who can sue

3) Where to file the application

4) Procedures to be followed

5) Relief(s) to be prayed for

6) Draw the necessary documents /or mention and describe the necessary document
to be filed in court

Question Six (GROUP No. 2 and 10)

An order of prohibition is a twin order to that of certiorari. Once vices are proven which warrant
the grant of the granting of the order certiorari, there would normally follow prohibition to
prohibit the subordinate court or tribunal or public authority or officer, as the case may be from
further perpetration of those vices.
Discuss the above postulation in light of, necessary conditions required for order of
certiorari and prohibition to be issued. Are there differences between the two
orders?

Question Seven (GROUP No.15)

“The judge must give reasons for his decision: for by so doing, he gives proof that 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 may be correct even though he should give no reasons for it or even give a wrong
reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision
should be reached, but also that it should be seen to be based on reasons; and that can only be
seen if the judge himself states his reasons.” Sir Alfred Denning in his book ‘The Road to
Justice’ at p.29.

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In the light of above quotation discuss the extent to which courts have tried to develop
such duty to give reasons whenever administrative decisions come to the detriment of an
individual person through the so called ‘Nullum Arbitrium sine rationibus’ rule.

Question Eight (GROUP No. 6 and 17)

One of the unique powers, which the High Court of Tanzania has over other subordinate courts,
is the power to review decisions of various administrative organs and courts below it through
judicial review. However the practice has revealed that application for judicial review involves
some legal limitations and frustrations and it is not certain that whenever an application is made
for it one can get the remedy sought.

Critically discuss this statement showing, inter alia, necessary requirements for one to be
able to seek remedy before the court through judicial review.

Question Nine (GROUP No. 7)

“…justice must be rooted in confidence and confidence is destroyed when right minded people
go away thinking that the judge was biased…” Lord Denning in METROPOLITAN
PROPERTIES CO LTD V LENNON AND ANOTHER [1969] 1 QB 577 at 599 as quoted by His
Lordship Bubeshi, J in MHIDINI AHMAD NDOLANGA AND OTHERS v NATIONAL
SPORTS COUNCIL AND ANOTHER [1996] TLR 325 at 333.

In the light of this argument discuss the ‘Nemo debet esse Judex in propria causa’ rule and its
application in various judicial decisions as against various administrative actions.

Question Ten (GROUP No. 8)

For all that we know mandamus is the procedure whereby a citizen with sufficient legal interest
may apply to the High Court to compel a public officer to perform a public duty entrusted to him.
It is said it will be granted if the duty is in the nature of a public duty and especially affects the

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rights of an individual, provided there is no more appropriate remedy. The person or authority
to whom it is issued must be either under a statutory or legal duty to do something or not to do
something; the duty itself being of an imperative nature.” His Lordship Mwalusanya, J (as he
then was) in JOHN MWOMBEKI BYOMBALIRWA v THE REGIONAL
COMMISSIONER AND REGIONAL POLICE COMMANDER, BUKOBA [1986] TLR 73
(HC).

In the light of the above quotation, discuss necessary conditions required for order of
Mandamus to be issued. Are the same conditions applicable for orders of Certiorari and
Habeas Corpus?

Question Eleven (GROUP 11)

It has been argued that: “A judge may not on judicial review set aside an official decision merely
because he or she considers that the matter should have been decided differently. Judicial review
does not provide a right to appeal on merits of the decision”. A.W Bradley & K.D Ewing (2007).
Constitutional and Administrative Law (14th Ed) at p 735
Further more
“ The Court will interfere only where a decision is so unreasonable that no reasonable authority
could have made it, not merely because it thinks it is a bad decision”. Lord Greene MR in
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223

In the light of above quotation discuss the extent to which courts have developed the ground of
unreasonableness as a ground for judicial review with the fact that the Court have struggled to
give a notion of unreasonableness a limited meaning whenever administrative decisions come to
the detriment of an individual person.

Question Twelve (GROUP No. 12)

a) “There is no convincing reason why the government should not place itself in the same
position as a private person subject to the same rights and duties as imposed by statute.”

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In the light of the above statement, critically discuss the liability of the
government in tort and contract in Tanzania.

b) Explain the procedure for instituting suits against the government in Tanzania.

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