JUDICIAL REVIEW NOTES

L. NDELWA

1
Introduction: Judicial Review

• In modern times in the interests of protecting the public

and regulating the economy, the state intervenes to a
very considerable degree in the lives of its citizens.

• For instance, the law provides for controls over prices,

restrictive practices and planning. Certain types of
business – examples are banking, employment agencies
and livestock marts – may not be carried on without a
licence;

2
Introduction: Judicial Review

• Licence may be subject to such conditions as the

licensing authority sees fit to impose.
• In short a variety of discretionary grants, most
notably in the area of industrial development,
are available, as is a wide range of benefits in
the spheres of health, social welfare, registered
entities, education, immigration and issuance of
permits etc.

3
Judicial Review: Introduction

• The administration of these controls and services brings

many persons and institutions into contact with
administrative agencies and naturally provides a fertile
source of grievances.
• With many of these the courts could have no concern; it
is not their function to entertain appeals from decisions
of administrative bodies. However, it is the business of
the courts to ensure that administrative actions and
decisions are taken in accordance with law.

4
VARIOUS DEFINITIONS OF THE CONCEPT
JUDICIAL REVIEW

• Is the process whereby a superior court reviews the

validity of or legality of the acts, decisions and omissions
of the administrative authorities, including statutory
tribunals.
• Judicial review is the procedure whereby a court so as to
ensure that the power has been properly exercised for it’s
lawful purpose examines the exercise of a delegated
discretionary decision making power. In general terms the
court will intervene where the person or body, which has
been given the power, fails to act when it is required to or
when it makes a decision it ought.

5
VARIOUS DEFINITIONS OF
THE CONCEPT JUDICIAL
REVIEW
 Is one of the mechanisms by which the judiciary can
bring to light and, to some limited extent, redress the
abuse of power and authority committed by other
organs of the state and public officials. (Per Professor
Issa G. Shivji).
• Is the court’s power to review, and possibly nullify acts
that violate the constitution and higher norms. It is the
way to assure that governmental actors respect the
constitution and do not use powers granted to them by
the constitution to seize illegitimate powers.

6
Definition
• It is the mechanism by which the judicially controls the
exercise of powers of the administrative bodies and
quasi-judicial bodies, i.e. tribunals.

• NOTE: JR is not an encroachment of the principle of

separation of powers but rather is an adherence of to
the principles of checks and balance, rule of law and
independence of the judicially

7
DIFFERENCE BETWEEN REVIEW OF A DECISION
AND AN APPEAL

• The High Court has an inherent jurisdiction to review public

actions/decisions, whereas the availability of appeals depends
on statutory provisions, i.e. requires parliamentary
authorisation.
• With review, the courts are not generally concerned with the
merits of an individual's case or the actual decision taken, as
they would be on an appeal. They are only concerned with the
way in which the administrative authority has reached its
decision. See R v Secretary of State for Scotland 1999 SC (HL)
17 at 41 - 42 per Lord Clyde (reported as Reid v Secretary of
State for Scotland, 1999 SCLR 74; [1999] 2 WLR28, [1999] 1
All ER 481).

8
DIFFERENCE BETWEEN REVIEW OF A DECISION
AND AN APPEAL

• In judicial review proceedings the courts will not

substitute their own decision for the one being
challenged. By contrast an appeal will result in an
upholding of the decision appealed against or the
substitution of a new one in favour of the appellant .
• SANAI MURUMBE AND ANOTHER v MUHERE CHACHA
1990 TLR 54 (CA), Northern TZ Farmers Coop Society v.
W.H. Shellukindo 1978 L.R.T. No.36 & 37, Ally Linus
and Others v. THA [1998] T.L.R.1
• Mwanza Restaurant and Catering Association v. Mwanza
Municipal Director; HC-MZA., Misc. Civil Cause No. 3 of
1987

9
THE PARTIES TO A JUDICIAL
REVIEW HEARING

• Judicial review is confined to matters of public,

as opposed to private, law. O'Reilly v Mackman:
1983 2 AC 237 and R v Panel on Takeovers and
Mergers ex p Datafin Ltd: (1987) QB 817. The
courts will not seize jurisdiction to review an
administrative action or decision if the matter
involved is one of private law.

10
The Applicant

• The court must recognise the applicant as having

"standing" or "locus standi" before s/he can proceed by
way of judicial review. LUJUNA SHUBI BALLONZI,
SENIOR v REGISTERED TRUSTEES OF CHAMA
CHA MAPINDUZI 1996 TLR 203
• This test is composed of two stages.
• the applicant must apply for leave for judicial review,
Read SENZIA ALPHONCE MBAGA AND SIX OTHERS
v. CHAIRMAN OF THE ELECTION COMMISSION
1996 TLR 102
• the actual judicial review proceedings or hearing.

11
INDIVIDUAL

• The courts will recognise the sufficient interest

of an individual whose rights or interests are
directly affected by a public decision or action, -
Schmidt v SS Home Affairs (1969) 2 Ch 149;
• and may even recognise the sufficient interest
of an individual to challenge a decision that
allegedly harms society as a whole. - R v SS
Foreign Affairs ex p Rees-Mogg (1994) 1 All
ER 457

12
• Interest/Pressure Groups
• The courts will recognise the interest of organisations to
challenge administrative decisions or actions which
affect their members individually - R v Liverpool
Corporation ex p Liverpool Taxi Fleet Operators
Association (1972) 2 QB 299;
• and may recognise the sufficient interest of
organisations to challenge a public decision or action
that allegedly harms the public interest - e.g. IRC v
National Federation of Small Businesses (1982) AC
617; and R v SS Environment ex p Rose Theatre
Trust Ltd (1990) 1 All ER 754

13
• See also;
• Legal and Human Rights Centre (LHRC) and 2 Others v
PETITIONER THE ATTORNEY GENERAL -
RESPONDENT MISCELLANEOUS CIVIL CAUSE NO. 77 OF 2005

14
The "Defendant Public Body"

• As per the "exclusivity principle", O'Reilly v Mackman, (supra),

judicial review cannot be used as a substitute for legal proceedings that
lack any real "public law" component.
• However the public/private law divide is becoming increasingly blurred. In
determining whether a body is a public one for the purposes of judicial
review, the court will examine the function(s) that it performs and whether
they have public law consequences.
• If the public status of the body is questionable, then the test applied is
whether the State or a public body would have to assume those
responsibilities in the absence of the body in question doing so. E.g
• R v Panel on Takeovers and Mergers ex p Datafin Ltd : (1987) QB 817
HELD: The City Panel of Takeovers and Mergers was a public body even
though it had been established on a voluntary basis.

15
• R (Beer) v Hampshire Farmers’ Markets Ltd: [2003] Times LR
25 August CA;
• The local authority had handed over the management of farmers
markets to a private company, which it had helped to establish. The
company subsequently decided to exclude the applicant from the
market and he sought judicial review.
HELD: That the company owed its existence to the council; that it
‘stepped into the shoes of the council’ and that the council had
assisted the company by providing facilities and finance. Accordingly
its decision was judicially reviewable.

16
Attorney-General to be summoned
as party Act No. 27 of 1991

• S18(1) 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.

17
SOURCES OF JR IN TANZANIA:

• The Constitution of the URT.

 Article 108(1) establishes the HC as a superior
court of records with an unlimited jurisdiction.
Sub-article (2) of the same article confers to the
HC the general jurisdiction in any matter which
“in accordance with the legal traditions and
conventional practices” obtaining in Tanzania.
 Furthermore, Article 13(6) (a) provides “the
right of appeal or any other legal remedy.” –any
other legal remedy presumably includes judicial
review.

18
Sources

• Statutes:
– The Judicature and Application of Laws Act, [Cap 358 R.E. 2002]. Section 2(3)
gives the HC supervisory jurisdiction to exercise, among other things, judicial
review powers. The HC exercise its jurisdiction “in conformity with the
common law, substance of equity and statutes of general application….”
 Tanzania Air Services Limited v. Minister For Labour, Attorney General and
The Commissioner For Labour [1996] TLR 217. Further, application for leave
for prerogative orders is made under section 2(3) of the Judicature and
Application of Laws Act, [Cap 358 R.E. 2002].
 Legal and Human Rights Centre and 2 Others v the Minister for Information,
Culture, Arts and Sports and 2 Others, Miscellaneous Civil Cause No. 20 of
2018 (Unreported)

– The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, , [Cap 310
R.E. 2002].
 The statute provides for three orders namely certiorari, mandamus and
prohibition. The statute changes the designation of the) from ‘writs’ to ‘orders’
under section 17 of Cap 310 R.E. 2002.

19
Sources of Judicial Review

 Section 17(2) of the Law Reform (Fatal Accidents and

Miscellaneous Provisions) Act, [Cap 310 R.E. 2002].
‘ In any case where the High Court would but for subsection (1) have
had jurisdiction to order the issue of a writ of mandamus requiring
any act to be done or a writ of prohibition prohibiting any
proceedings or matter, or a writ of certiorari removing any
proceedings or matter into the High Court for any purpose, the
Court may make an order requiring the act to be done or prohibiting
or removing the proceedings or matter, as the case may be .”
Further the Law Reform (Fatal Accidents and Miscellaneous
Provisions) (Judicial Review Procedure and Fees) Rules, 2014 G.N.
No. 324 of 2014

– Criminal Procedure Act, [Cap 20 R.E. 2002]. Section 390 of Cap 20

provides for the power of the High Court to issue an order of
Habeas Corpus and writs.

20
 – . Further there are the Criminal Procedure (Habeas Corpus)
Rules G.N. No. 150 of 1930;
 habeas corpus simply mean 'let us have the body'. It is a writ
issued to a detaining authority to produce the detained person
in court to know cause for detention. If the detention is found to
be illegal, the court issues an order to set the person free;

• Case Law

21
Cases for Personal study

• John Mwombeki Byombalirwa v.R.C & RPC,Bukoba

[1986]TLR 73 and Mwanza Restaurant &Catering
Association v.Mwanza Municipal Director,Miscellenaous
Civil Cause, no 3 of 1987.(unreported).
• ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES
AND OTHERS 1996 TLR 352
• TANZANIA AIR SERVICES LIMITED v. MINISTER FOR
LABOUR, ATTORNEY GENERAL and THE COMMISSIONER
FOR LABOUR 1996 TLR 217
• MOHAMED JAWAD MROUCH v MINISTER FOR HOME
AFFAIRS 1996 TLR 142
• LUJUNA SHUBI BALLONZI, SENIOR v REGISTERED
TRUSTEES OF CHAMA CHA MAPINDUZI [1996] TLR 203

22
Cases for Personal study

• THE ASSISTANT REGISTRAR OF BUILDINGS v

FREDRICK G. KIBWANA 1987 TLR 84 MOHAMED
JAWAD MROUCH v MINISTER FOR HOME
AFFAIRS 1996 TLR 142
• IN THE MATTER OF APPLICATION BY SIMEON
MANYAKI AND IN THE MATTER OF THE
EXECUTIVE COMMITTEE AND COUNCIL OF THE
INSTITUTE OF FINANCE MANAGEMENT [1984]
TLR 304

23
Cases for Personal study

• SENZIA ALPHONCE MBAGA AND SIX OTHERS v.

CHAIRMAN OF THE ELECTION COMMISSION [1996] TLR
102
• ALI LINUS &11OTHERS vs. THA, THE LABOUR
CONCILIATION BOARD OF TEMEKE DISTRICT( 1998)
TLR 5
• CONRAD BEREGE vs. REGISTRAR OF COOP. SOC. &ORS
(1998)TLR 22
• JOSIAH BARTHAZAR BAIZI&ORS. Vs. AG &ORS
• SANAI MURUMBE AND ANOTHER v MUHERE
CHACHA [1990 ]TLR 54 (CA)

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Purpose of Judicial Review

• PURPOSE:
• The purpose of judicial review is not to replace the decision that has been
questioned. Judicial review is concerned with the legality of how the
decision was reached and not the merits.
• The major purpose of JR is to safeguard the interests of the citizens by
providing them with remedies/reliefs in case public authorities have violated
their legal rights. These remedies include the following:
• To quash or declare invalid an order, act or decision of a public body
• To reverse or validate an order or decision
• To restrain the performance or continuance of a wrongful act
• To obtain release from unlawful detention
• To secure an authoritative statement of the law
• To secure the performance of a public duty

25
The scope of judicial review

• The point is to put right a bad decision rather than to

get compensated
• In JR the court is more interested in the process of
decision making rather than the actual result. The scope
of judicial review and its relationship with the evidential
merits of any particular decision was summarized in the
English case of R v Secretary of State for Scotland 1999
SC (HL) 17 at 41 - 42 per Lord Clyde (reported as Reid v
Secretary of State for Scotland, 1999 SCLR 74; [1999] 2
WLR28, [1999] 1 All ER 481), in the following terms:

26
• “Judicial review involves a challenge to the legal validity
of the decision. It does not allow the court of review to
examine the evidence with a view to forming its own
view about the substantial merits of the case. It may be
that the tribunal whose decision is being challenged has
done something, which it had no lawful authority to do.
(utra vires) It may have abused or misused the
authority, which it had. It may have departed from the
procedures which either by statute or at common law as
matter of fairness it ought to have observed. (Procedural
impropriety)

27
• As regards the decision itself it may be found to be perverse or
irrational, or grossly disproportionate to what was required. Or
the decision may be found to be erroneous in respect of a legal
deficiency (illegality), as for example, through the absence of
evidence, or of sufficient evidence to support it, or through account
being taken of irrelevant matter, or through a failure for any reason
to take account of a relevant matter, or through some
misconstruction of the terms of the statutory provision which the
decision maker is required to apply. But while the evidence may
have to be explored in order to see if the decision is vitiated by such
legal deficiencies it is perfectly clear that in a case of review, as
distinct from ordinary appeal, the court may not set about forming
its own preferred view of the evidence.”
• See also; SANAI MURUMBE CASE ABOVE where the court held;

28
• (ii) The High Court is entitled to investigate the proceedings of a
lower court or tribunal or public authority on any of the following
grounds apparent on the record:
•
• (a) Taking into account matters which it ought not to have
taken into account;
• (b) Not taking into account matters which it ought to have
taken into account;
• I (c) lack or excess of jurisdiction;
• (d) Conclusion arrived at is so unreasonable that no
reasonable authority could ever come to it;
•
• (e) Rules of natural justice have been violated;
• (f) Illegality of procedure or decision

29
GROUNDS
• Grounds for review
• In Council of Civil Service Unions v Minister for
the Civil Service[1985] AC 374, Lord Diplock
summarised the grounds for reversing an
administrative decision by way of judicial rewiew
as follows:
• Illegality
• Irrationality
• Procedural impropriety

30
• The first two grounds are known as substantive
grounds of judicial review because they relate to
the substance of the disputed decision.
• Procedural impropriety is a procedural ground
because it aims at the decision-making
procedure rather than the content of the
decision itself.
• The three grounds are mere indications: the
same set of facts may give rise to two or all
three grounds for judicial review.

31
 Illegality

• In Lord Diplock's words, this ground means that

the decision maker "must understand correctly
the law that regulates his decision-making power
and must give effect to it."
• A decision may be illegal for many different
reasons. There are no hard and fast rules for their
classification, but the most common examples of
cases where the courts hold administrative
decisions to be unlawful are the following:

32
(a) The decision is taken by the
wrong person (unlawful sub-
delegation)
• If the law empowers a particular authority, e.g. a
minister, to take certain decisions, the Minister cannot
subdelegate this power to another authority, e.g. an
executive officer or a committee.
• This differs from a routine job not involving much
discretion being done by civil servants in the Minister's
name, which is not considered delegation

33
Sahni silk mills vs. ESI Corps

• The parent Act enabled the corporation to

delegate its powers to the DG, who
however in turn sub delegated to regional
directors, since there was no such power
permiting the DG to subdelegate, his
action was held to be bad.

34
• See; Municipal Board of Mambasa v. Kala (1955)
22 E.A.C.A. 319 , R.v. Mangangi Mbuki 1969
H.C.D. 251 , Jeffs v. New Zealand [1966] 3 All
E.R. 863; [1967] 1 A.C. 551
• Also revisit the readings on “Sub-
Delegation” under “Legislative Powers of
the Administration.
• Barnard v. National Dock Labour Board [1953] 1
All E.R. 1113; [1953]2 Q.B. 18. , A. G. v. Lesinoi
Ndeanai 1980 T.L.R. 214

35
b) Error of law or error of fact

• The court will quash a decision where the authority has

misunderstood a legal term or incorrectly evaluated a fact that is
essential for deciding whether or not it has certain powers.
• So, in R v Secretary of State Ex Parte Khawaja [1984] AC 74, the
House of Lords held that the question whether the applicants were
"illegal immigrants" was a question of fact that had to be positively
proved by the Home Secretary before he could use the power to
expel them.
• The power depended on them being "illegal immigrants" and any
error in relation to that fact took the Home Secretary outside his
jurisdiction to expel them.

36
• However, where a term to be evaluated by the authority so broad
and vague that reasonable people may reasonably disagree about
its meaning, it is generally for the authority to evaluate its meaning.
For example, in R v Hillingdon Borough Council ex Parte Pulhofer
[1986] AC 484, the local authority had to provide homeless persons
with accommodation.
• The applicants were a married couple, who lived with her two
children in one room and applied to the local authority for aid. The
local authority refused aid because it considered that the Pulhofers
were not homeless and the House of Lords upheld this decision
because whether the applicants had accommodation was a question
of fact for the authority to determine.

37
( c) The powers used for the
purpose different from the one
envisaged by the law under
which they were granted
•

38
Nalin mohan vs.district magistrate,
1951 air
• The statute empowered the authority to
rehabilitate the person displaced from pakistan
as a result of communal violence, that power
was exercised to accommodate a person who
entered india on medical ground.
• Banglore medical trust vs. muddapa- piece of
land earmarked for a public park was alloted by
the minister to a private trust for a nursing
home, arguing that it was for public interest.
Held the power were exercised contrary to the
purpose.

39
(d) Ignoring relevant considerations or taking
irrelevant considerations into account, eg dismissal
of albino teacher

• This ground is closely connected to the above as a result of powers being

used for the wrong purpose. For example Wheeler v Leicester City Council,
where the City Council banned a rugby club from using its ground because
three of the club's members went on a tour in South Africa at the time of
apartheid.
• See also; Shaban Khamis Mloo v. Superintendent or Prisons, 1991
T.L.R.21. Re: Shah Vershi 1970 E.A. 631
• Bukoba Gymkhana Club 1963 E.A. 478
• - Roberts v. Hopwood [1925] A.C. 578
• - Westminster Corporation v. London & North Western Railway Company
[1905] A.C. 426
• all these cases, the authorities have based their decisions on considerations,
which were not relevant to their decision making power and have acted
unreasonably (this may also be qualified as having used their powers for an
improper purpose)

40
What are relevant considerations? (normally
stated by statute, eg regard shall be had
to…, must have regard to…..

• - Sharp v. Wakefield 1891 A.C. 173

• - Amri Juma v. THA & Another [1998]
T.L.R.
• - Agro Industries Ltd. V. Attorney General
[1994] T.L.R. 43
• - James F. Gwagilo v. Attorney General
[1994] T.L.R. 73
41
• Note that the improper purpose or the irrelevant
consideration must be such as to materially influence
the decision.
• Where the improper purpose is not of such material
influence, the authority may be held to be acting within
its lawful discretion.
• So R v Broadcasting Complaints Commission Ex parte
Owen (1985), where the Broadcasting authority refused
to consider a complaint that a political party has been
given too little broadcasting time mainly for good
reasons, but also with some irrelevant considerations,
which however were not of material influence on the
decision

42
(e)
Fettering/impeding/restrainin
g own discretion
• An authority will be acting unreasonably were it refuses
to hear applications or takes certain decisions without
taking individual circumstances into account by
reference to a certain policy.
• When an authority was given discretion, it cannot bind
itself as to the way in which this discretion will be
exercised either by internal policies or obligations to
others.
• Even though an authority may establish internal
guidelines, it should be prepared to make exceptions on
the basis of every individual case.

43
Gell vs. Taja noora ILR

• Under the Act, 1863, the commisioner of

police had discretion to refuse to grant a
licence for any land conveyance, which he
may consider to be unfit for the
conveyance of the public, instead of using
this discretion, he issued a general order
pertaining the licence, held bad.

44
• R v SS Home Dept ex p Findlay: (1984)
HELD: Although a decision making body needs to develop certain
general policies to assist it in carrying out its tasks, it must
nevertheless always keep in mind the possibility that an exception
should be made to its' policy if the circumstances make that
appropriate; i.e. powers should be exercised with regard to the
merits of an individual case.
• The basic rule is anyone who has to exercise a statutory discretion
must not "shut his ears" to a new application
• This is always subject to an express provision to the contrary.
•

45
• British Oxygen Co. Ltd. V. Minister of
Technology [1970]3 All E.R. 165; 1971;
A.C. 610.
• Madhwa v. Nairobi City Council 1968 E.A.
406
• Njombe District Council v. Kanti Printing
Works 1971 E.A. 193

46
Excess of jurisdiction
• The authority must exercise the powers within
the limits provided by the enabling law.
• London county council vs.AG;1902 AC 165 the
local authority wa empowered to operate
tramways, however it proceeded to carry bus
services, held utra vires
• A.G vs. Fulham corp 19211 chd440 the local
authority was empowered to run municipal baths
and wash houses, they opened public laundry,
held ultra vires

47
2. Irrationality

• Under Lord Diplock's classification, a decision is irrational if it 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
could have arrived at it." This standard is also known as
Wednesbury unreasonableness, after the decision in Associated
Provincial Picture Houses Ltd v Wednesbury Corporation, where it
was first imposed.
• Unlike illegality and procedural impropriety, the courts under this
head look at the merits of the decision, rather than at the procedure
by which it was arrived at or the legal basis on which it was
founded. The question to ask is whether the decision "makes
sense". In many circumstances listed under "illegality", the decision
may also be considered irrational

48
cases
• Robert vs. Hopwood; the local authority was
empowered to pay wages as it think fit, the
authority fixed the wage of £4 per week to the
worker, held too low, may think fit means may
reasonably think fit. A person must do what he
ought to do and not do whatever he like just
because he has power.
• The onus of proof lies to the petitioner
• Therefore unreasonable decision is that one
which is so perverse that no evidence is there to
support it

49
• Associated Picture Houses Ltd v Wednesbury Corporation:
CA (1948) 1 KB 233
• Per Lord Greene MR: "If a decision on a matter is so
unreasonable that no reasonable authority could have come to it."
• UKAPE v ACAS: (1981) AC 424
• Per Lord Scarman "No reasonable person charged with the body's
responsibilities under the statute could have exercised its powers in
the way that it did"
• SS for Education v Thameside: HL (1977)
• Per Lord Denning "It is one thing to say to a person 'I think you
are wrong.' It is quite another to say to him 'you are being
unreasonable' No-one can properly be labelled as being
unreasonable unless he is not only wrong but unreasonably wrong;
so wrong that no reasonable person could sensibly take that view"

50
• discretion must be exercised reasonably….there may be
something so absurd that no sensible person could even
dream that it lay within the powers of the authority.
• Warrington LJ in Short v Poole Corporation gave the
example of the red-haired teacher sacked because she
had red hair.
• That is unreasonable in one sense. In another sense it is
taking into account extraneous matters. It is so
unreasonable that it might almost be described as being
done in bad faith; and in fact all these matters run into
one another.

51
• J.D. Kessy v. City Council of Dar Es
Salaam, H.C.C.C. (Dar),No.299 of 1988
(Lugakingira, J.)
• - Festo, Balegele & Others v. Dar Es
Salaam City Council, H.C. (Dar), Misc. Civil
No.90 of 1991.
• Revisit all readings on:- Wrong/irrelevant
considerations, Improper Purpose/Motives.

52
Proportionality

• Proportionality is a requirement that a decision is proportionate to

the aim that it seeks to achieve. E.g. an order to forbid a protest
march on the grounds of public safety should not be made if there
is an alternative way of protecting public safety, e.g. by assigning
an alternative route for the march.
• Proportionality exists as a ground for setting aside administrative
decisions in most continental legal systems and is recognised in
England in cases where issues of EC law and ECHR rights are
involved.
• However, it is not as yet a separate ground of judicial review,
although Lord Diplock has alluded to the possibility of it being
recognised as such in the future. At present, lack of proportionality
may be used as an argument for a decision being irrational.[12]

53
case

• Hind construction vs. workman; some workers

remained absent from duty treating a particular
day as holiday, they were dismissed from
service. held; the absence could have been
treated as leave without pay, the workers might
have been warned, it is imposible to think that
any reasonable employer would have imposed
the extreme punishment of dismissal in this
manner.

54
3. Procedural impropriety

• A decision suffers from procedural impropriety if

in the process of its making the procedures
prescribed by statute have not been followed or
if the 'rules of natural justice' have not been
adhered to.
• Read Mwanza Restaurant and catering
Association vs. Mwanza municipal council, HC at
Mwanza, Misc. Civil Cause no. 3 of 1987

55
PRINCIPLES OF NATURAL
JUSTICE

• The expression ‘natural justice’ has not been consistently

defined by most of scholars. There is no clear and
acceptable definition of this expression although it
widely applied in various jurisdictions.
• The growth of the principles of natural justice has an
impressive history. It took its roots from ancient times
and neither common law nor any other jurisdiction can
claim to be the founder of these principles. In fact they
have relationship with moral principles which describe
what is right and what is wrong.

56
• The modern concept of natural justice has only received
modifications in relation to the need of the contemporary world.
They are actually applicable depending on the facts of each
particular case as noted by Tucker, L.J in Russel v Duke of
Norfolk[1] that;
• “There are, in my view, no words which are of universal application
to every kind of inquiry and every kind of domestic tribunal. The
requirements of natural justice must depend on the circumstances
of the case, the nature of the inquiry, the rules under which the
tribunal is acting, the subject-matter that is being dealt with, and so
forth.”
•
[1] [1949] 1 ALL ER 109

57
• English law recognizes three cardinal principles of natural justice
which are;
• Rule against biasness (nemo judex in causa sua).The
decision-maker should not be biased. He should not have any direct
pecuniary, proprietary or personal interests. Also he should not be
reasonably suspected, or show a real likelihood of bias.
• The right to be heard (audi alteram partem).The decision-
maker should provide a fair hearing. No body should be penalised
unless he has been given notice of the case he has to face and a
fair opportunity to answer the case against him.
• The right to know the reasons for the decision (nullum
arbitrium sine rationbus).The decision-maker should provide
reasons for decision. This provides a means whereby a party is
appraised of why a decision has been made

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