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A COMPILATION OF CASES OF JUDICIAL REVIEWBy Evarist BaimuNyaga Mawalla

TABLE OF CONTENTS1. INTRODUCTION; NATURE AND SCOOPE OF JUDICIAL REVIEW1.1 Shivji. I.G , Development in Judicial Revenue in Mainland Tanzania, Paperpresented 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 CLAUSES2.1 Anisminic Case2.2 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 19972.4 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. 14of 1977, HC at DSM2.7 Mwanza Restaurant V Mwanza Municipal Director, Misc. Civ cause No.3 of1987, HC at Mwanza2.8 OTTU v Attorney General & Anor. Civil case No. 53 of 1994, HC at Dar-es-Salaam2.9 R v panel of Take –over and Mergers, ex p Datafin [1987] Q.B.8153. LOCUS STANDI3.1 Lujuna Shubi Ballozi v The registered trustee of trustee of CCM, Civil case No.214 of 19943.2 Mtikila v Attorney General, Misc. civil case No.5 of 1993, HC at Dodoma4. PROCEDURE4.1 American Cyanamid v Ethicon Ltd [1975]1 ALLE.R 5044.2 Andrew W. Nkuzi v Tanzania Sisal Authority, Misc. Civ cause No.3 of 1994, HCat Dar-es-Salaam2

4.3 Assistant Imports controller v Magnum agencies Civappeal No.20 of 19904.4 Farmers Bus Services v Transport Licensing Appeals Tribunal (C.A) [1959] E.A7794.5 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 19974.7 Kahama Goldmines v Minister for Energy, Misc. Civ cause 127 of 1988, HC atDar-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 19954.10 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 atDodoma4.12 Pumbun & Anor. V AG, Civil Appeal No. 32 of 19925. GROUNDS5.1 Amir Juma & 15 Others v THA, Misc. civil case No. 37 of 1980, HC at Dar-es-Salaam5.2 CCSU v Minister for Civil Service [1985] AC 3855.3 I.S Msangi v JUWATA & Anor [1992[ TLR 259(AC)5.4 Mwakibete v Principal Secretary & AG, civil Appeal No.27 of 19925.5 Sylvester Cyprian & 210 others v University of Dar-es-Salaam. Misc. civilApplication No. 68 of 19945.6 Tanzania Air Services Ltd v Minister of Labour 7 others, Misc. civil case No. 1 of19956. EXERCISE OF DISCRETIONARY POWERS6.1 Abdi Athuman & 9 others v DC. Tunduru & 3 others Consolidate Misc. civil caseNo. 2 & 3 of 19876.2 Festo Balegele & 794 others v DSM City Council Misc. civil case No. 90 of 19916.3 James Gwagilo v AG, Civil case No. 23 of 19933

6.4 Mwakibete v Principal Secretary & AG, HC at Arusha, Misc. civil ApplicationNo.11 of 19926.5 Shekimweri v AG, Misc. civil case No. 3 of 19967. REMEDIES7.1 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 19827.5 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 5377.7 Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. Civil Appeal No. 3of 1994 HC at Songea7.8 Obadiah Saleh v Dodoma Wine, Civ case No. 53 of 1990 HC at Dodoma7.9 Patman Garments v Tanzania Manufacturer [1981] TLR 3037.10 Simeon Manyaki v Executive Committee and Council of IMF, Misc. Civilcause No. 42 of 19847.10.1 Vidhyadhar Chavda v Director of Immigration Services Misc. Civil case No.5 of 1995, HC at DSM1.1 INTRODUCTION; NATURE AND SCOPE OF JUDICIAL REVIEW.Shivji .I.G ,Developments in Judicial Review in Mainland Tanzania, Paperpresented in the Judges, Course on Constitutionalism & Human Right, 21.09.1998– 02.10.19981.2 Maharaj v Attorney General of Trinidad & Tobago (No. 2) (1979) AC 3854

appropriate respondent, i.e, if in any case the appropriate respondent has notbe joined.G. A defendant is always entitled to know what offence he is charged with and ifhe is not told there is a fundamental failure of due process, see a bare chargeof 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 section6 of the Constitution is not a term is not a term of art: forH. Its ordinary meaning, see The shorter Oxford English Dictionary, 3 rd ed.(1944). The appellant adopts the reasoning in Jaundoo v. Attorney-General ofGuyana [1971] A.C. 972, 982, 983. The word is used in its widest possiblesense and entitles and requires the court to give relief appropriate to particularcircumstances. Although research has not revealed a case where a personwrongfully sent to prison has obtained damages save for the tort of falseimprisonment, Jaundoo v. Attorney-General of Guyana shows that monetarycompensation is appropriate where there is no other remedy.The Attorney-General is the appropriated part against whom a plaintiff may bringproceedings for redress under section 6 of the Constitution. If a plaintiff has a remedyagainst, the Attorney-General is the proper part representing the state against whomthe court can award damages.Note the provisions of the State (formerly Crown) Liability and Proceedings Act1966. Philips J.A was right in saying that the human rights and fundamentalfreedoms declared by section 1 and specifically protected by section 2 of theConstitution were primarily justifiable against the state. The principle is thatfundamental rights being guaranteed no organ of the state may act in contravention ofthem.The order of Maharaj J. was not the act of an ordinary toreador. It was a state actperformed by the judicial arm of state. The right of an individual to liberty and theright to be deprived thereof save by due process of law existed before thecommencement of the Constitution but its entrenchment as constitutional right gave ita new status not only by reason of the formalities required for its abrogation orabridgment but also as a result of the creation by section 6 of the Constitution of anew right of redress in respect of contravention which is primarily intended to beinvoked in cases of contravention by the state as opposed to that by privateindividuals. Section 6 of the constitution owes its origin to Article 5 (5) of the6

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 breachesof section 1 and 2 of the Constitution. Habeas Corpus only lies if the imprisonmentwas an act of the executive: it does not lie against the Governor where theimprisonment was pursuant to a judge’s order.Ramsahoye S.C followedAlgernon 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 toentertain the appellant’s motion. Section 6 (1) of the Constitution does not enable aperson in pursuit of the rights and freedoms declared by sections 1 and 2 of theConstitution to apply for redress to a judge of the High Court from any ruling ordecision established system of justice and to the progressive steps available to acitizen in pursuit of his legal rights and the right of appeal provided for by theJudicature Act 1962.On authority the court should construe a stature away from its too literal terms toavoid absurdity, confusion or unreasonableness and should have due respect for theconsequences. Such construction must not offend the common sense, objects orintention of the statute. To construe section 6 narrowly would not deprive the subjectof his right to pursue his constitutional rights: he has a statutory right of appeal to theCourt of Appeal. If a motion under section 6 were founded on an allegedcontravention of sections 1 or 2 of the Constitution by Court of Appeal or the JudicialCommittee of the privy Council it would be even more ludicrous if an aggrievedperson could go for redress to the High CourtA. The Attorney-General was not a proper party to the motion: he was notinvolved, nor was the state. To depend on section 13 of the Judicature Act1962 (No. 12 of 1962) is misleading because there the Attorney-General isnot a party but simply has the right to be informed of the constitutionalissue and in his absolute discretion to join the proceedings as a micascuriaeB. And not a party . Davies following. “Redress” in section 6 (1) of theConstitution is to be interpreted narrowly and is qualified by “for thepurpose of Court’s Jurisdiction is limited to making orders by way ofdeclaration, Injuction (where appropriate because an Injuction cannotissue against the state) and prerogative order. There is no power to awarddamages.C. Save for powers and duties of the courts other that the High Court or Courtof Appeal conferred by section 6 (3), section 6 gives no new remedy to7

the individual complaining of breach of constitutional rights. Theindividual does not lose anything by this interpretation: he can use theordinary procedures to enforce his rights and these can be just asexpeditious as proceedings under section 6. Jaundoo v.D. Attorney-General of Guyana [1971] A.C 971 supports the respondent’ssubmissions. The appellant’s case argued before the Board differs fromthat presented below. There the complaints was of the act of a judicialofficer and here it is of the act of an unspecified officer of the executive indetaining the appellant asserts a right (breach of which is not a tort) whichhe 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 ofsection 1 of the Constitution creates new right and freedoms which arenot part of the Common Law that does not detract from the arguments onsection 6 and any new rights are enforceable by the normal process.Section 3 of the Constitution provides that section 1 and 2 shall notF. Apply in relation to any law in force at the commencement of theConstitution. By section 105 existing law includes the common law.Common law deals with public policy. Judicial immunity from theconsequences of an act done in a judicial capacity is an aspect of publicpolicy. The same immunity extends to officers acting in obedience to ajudge’s order. To hold otherwise would lead to dissatisfied litigantssidestepping appellate procedure by a collateral action complaining thatG. Their fundamental right and freedoms had been infringed by an executiveofficer 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 JudicialCommittee could be challenged in the High Court. Before the StateLiability and Proceedings Act 1966 in general no action lay against a statefor wrongs committed by its servants. That ActH. Permitted proceedings in tort but in the instant case no tort is alleged, noaction lies for the act complained of and, ex hypothesis, the Attorney-8

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 2are subject to section 3 by section 6 is not in consideration redress undersection 6 it is only necessary to look at sections 1 and 2 in order todiscover what the fundamental right and freedoms are. Section 4 (1) of theTrinidad and Tobago Order in council (1962 S.I. 1875) is relevant in theconstruction of section 6. what was done by the judge was unlawful underexisting law and therefore the appellant is entitled to redress under theConstitution. The fact that redress under section 6 which section 3 doesnot 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. Forloss of liberty which has already been regained the only redress isdamages: the appellant is not seeking punitive damages but compensationfor the loss of his liberty only. This claim should not be confused with apersonal claim against the judge for damages.In assessing damages there is no difficulty about special damages. Generaldamages in cases such as the present are analogous to those for the tort ofwrongful imprisonment and should be assessed on a similar basis and reflectthe injury to the complaint’s self-respect.That wrongful deprivation of liberty is a breach of the Constitution is also tobe taken into account.It is difficult to see how some of the fundamental rights and freedomsguaranteed by Westminster model constitutions could have existed at commonlaw: see Oliver v Buttigleg [1967] 1 A.C 115.The court has ample powers to deal with any abuse of process. Section 6 hasprovided that the High Court is the proper forum to seed enforcement of thesubject’s constitutional right and he could apply there even for infringementof them by the Court of Appeal.Public policy does not require that the state should be immune in respect ofacts of the judicature.The respondent’s argument on public policy equates this type of action withan action against the judge is the defendant. It is against the tenor of the policy9

of the Constitution that there should be differentiation between one arm of thestate and another. Once want of due process and infringement of liberty areorder “redress” section 6 (2) does not cut down section 6 (1): the intention wasto 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 alacuna in the available remedies if damages were not included in redress”where enforcement is the prescribed remedy in respect of the contravention ofa 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 byLORD DIPLOCK.The unfortunate misunderstanding that resulted in the appellant, a member ofthe Bar of Trinidad and Tobago, being committed to seven days’imprisonment for contempt of court on April 17, 1975, upon the order ofMaharaj J., are narrated in the reasons for judgment deliverer by the JudicialCommittee on October 11, 1976, in the previous appeal to which they havegiven rise, Maharaj v. Attorney-General for Trinidad and Tobago [197] 1 allE.R. 411. that was an appeal against the committal order. It was allowed andthe 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 tohim the particulars of the specific nature of the contempt with which he wasbeing charge. This must usually be done before an alleged contemnor canproperly be convicted and punished (in repelled (1868) L.R. 2 P.C. 106) intheir Lordships’ view, justice certainly demanded that the judge should havedone so in this certainly demanded that the judge should have done so in thisparticular case.Their Lordships are satisfied that his failure to explain that the contempt withwhich he intended to charge the appellant was what the judge has described inhis written reasons as ‘a vicious attach on the integrity of the court’ vitiatesthe committal for contempt.”This was finding that the judge, however inadvertently, had failed to observe afundamental rule of natural justice; that a person accused of an offence shouldbe told what he is said to have done plainly enough to give him an opportunityto put forward any explanation or excused that he may wish to advance.The question on the instant appeal is whether this constituted a deprivation ofliberty 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 the10

appellant was entitled to redress by way of monetary compensation undersection 6.In 1975 there was no right of appeal to the Court of Appeal from an order of ajudge of the High Court finding a person guilty of contempt of the court andordering him to be punished for it. An appeal did lie to the Judicial Committeeof the Privy Council but only by special leave of that committee itself. So theappellant sought an immediate means of collateral attack on the order ofMaharaj J. On the very day of his committal he applied exparte by notice ofmotion to the High Court in purported pursuance of section 6 of theConstitution, claiming redress for contravention of his constitutional rightsunder section 1 of the constitution and for a conservatory order for hisimmediate release on his own recognizance’s pending the final determinationof his claim. The nature of the redress that he claimed was-:(a) a declaration that the order committing him to prison for contempt wasunconstitutional, 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 “ forwrongful detention and false imprisonment;” together with a claim for all suchother orders etc. as might be appropriate. Both the Attorney-General andMaharaj J. were named as respondents to the notice of motion but onlyAttorney-General was served and from the outset the motion has beenproceeded with against him alone.The exparte application came before Braithwaite J. on April 17, 1975. Hegranted the conservatory order; and the appellant was forth with released, aftersuffering imprisonment for part of the day.It is not without interest to note that Braithwaite J. on June 26, 1975, gavereasons in writing for his decision. In these he expressed the view that uponthe evidence before him, the appellant had made out a prima facie case thathis right under section 1 9a) of the Constitution not to be deprived of hisliberty without due process of law had been contravened.The substantive motion, however, did not come before Braithwaite J. butbefore Scott J. After an intermittent hearing extending over 13 days hedismissed the motion on July 23, 1975, and ordered the appellant to serve theremaining six days of his sentences of imprisonment. His ultimate ground fordismissing it was that the High Court had no jurisdiction under section 6 toentertain the motion since to do so would, in his view, amount to the exercise11

y one judge of the High Court. Despite his disclaimer of jurisdiction toentertain the motion Scott J. did express his own view that the appellant notonly had been guilty of contempt of court but also had been told withsufficient particularity the nature of the contempt of which he was accused.From the dismissal of his originating motion the appellant appealed to theCourt of Appeal; but that appeal was not heard until April 1977. In themeantime he had sought and obtained from the Judicial Committee specialleave to appeal to them against the original order of Maharaj J. committinghim to prison for contempt of court.By July 1976 this appeal had been heard and determined in his favour by theJudicial Committee upon the grounds which were stated later in theirjudgment of Scott J. on the originating motion came to be decided by theCourt had jurisdiction under section 6 of the Constitution (now section 14 ofthe republic Constitution) to grant the appellant redress for an allegedcontravention of his constitutional right resulting from something done by ajudge when acting in his judicial capacity; (2) whether the failure of MaharajJ. to inform the appellant of the specific nature of the contempt of court withwhich he was charged before committing him to prison for it, contravened aconstitutional right of the appellant in respect of which he was entitled toprotect under section 1 (a) of the Constitution (now section 4 (a) of therepublican Constitution); and, if so, (3) whether the appellant was entitled byway of redress to monetary compensation for the period that he had spent inprison. All three members of the Court of Appeal (Hyatali C.J. and CorbinJ.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 nowappeals once more to the Judicial Committee. In addressing themselves to thequestions arise it would seem convenient to set out the most important ofthose provisions of the Constitution upon which in their Lordships view theanswers turn.“ whereas the people of Trinidad and Tobago (e) desire that their Constitutionshould make provision for ensuring the protection in Trinidad and Tobago offundamental human rights and freedoms;12

“CHAPTER 1“ THE RECOGNITION AND PROTECTION OF HUMAN RIGHTSAND FUNDAMENTAL FREEDOMS“ 1. It is hereby recognized and declared that in Trinidad and Tobago there have existedand shall continue to exit without discrimination by reason of race, origin, colour,religion or sex, the following human rights and fundamental freedoms, namely (a) theright 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 shallabrogate, abridge or infringe or authorize the abrogation, abridgment or infringement ofany of the rights and freedom hereinbefore recognized and declared and in particular noAct of Parliament shall – (a) authorize or effect the arbitrary detention, imprisonment orexile of any person; (e) deprive a person of the right to a fair hearing in accordance withthe 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 inforce 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 ifany of the provisions of the foregoing section of this Constitution has been, is being, or islikely to be contravened in relation to him, then, without prejudice to any other actionwith respect to the same matter which is lawfully available, that person may apply to theHigh Court for redress.(2) The High Court shall have original jurisdiction – (a) to hear and determine anyapplication made by any person in pursuance of subsection (1) of this section; and (b) todetermine any question arising in the case of any person which is referred to it inpursuance of subsection(3) thereof, and may make such order, issue such writs and give such directions as if mayconsider appropriate for the purpose of enforcing, or securing the enforcement of, any ofthe provisions of the said foregoing sections or section to the protection of which theperson concerned is entitled. if in any proceedings in any court other that the High Courtof Appeal any question arises as the contravention of any of the provisions of the saidforegoing. Sections or section the person presiding in that court may, and shall if anyparty to the proceedings so requests, refer the question to the High Court unless in hisopinion the raisin of the question is merely frivolous or vexation.(4) Any person aggrieved by any determination of the High Court under this sectionmay appeal therefrom to the Court of Appeal.(5) Nothing in this section shall limit the power of Parliament to confer on the High Courtor the Court of Appeal, as the case may be, of its jurisdiction in respect of the mattersarising under this Chapter”.13

Question(1) Their Lordship can deal briefly with the question of jurisdiction. The notice of motionand the affidavit in support of the application for the conservatory order for theimmediate release of the appellant pending the final hearing of his claim, made it clearthat 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 allegedcontravention of his right under section 1 (a). it is true that in the notice of motion and theaffidavit which, it may be remembered, were prepared with the utmost haste, there areother claims and allegations some of which would be appropriate to a civil actionagainst the Crown for tort and other to an appeal on the merits against the committalorder 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 liablein tort for anything done Maharaj J. while discharging or purporting to discharge anyresponsibilities of a judicial nature vested in him; nor for anything done by the police orprison officers who arrested and detained the appellant while discharging responsibilitieswhich they had in connection with the execution of judicial process. Section 4 (6) of theState ( formerly “ Crown “) Liability and Proceedings Act 1966 so provides. At that timetoo there was no right of appeal on the merits against an order of a High Court judgecommitting a person to imprisonment for contempt of court, except to the JudicialCommittee 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 hisconstitutional rights under section 1 (a) of the Constitution fell within the originaljurisdiction of the High Court under section 6 (2). This claim does not involve any appealeither on fact or on substantive law from the decision of Maharaj J. that the appellant onApril 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 judgebefore committing the appellant to prison for contempt contravened a right, to which theappellant was entitled under section 1(a) , not to be deprived of his liberty except by dueprocess of law. Distasteful though the task may well appear to a fellow judge of equalrank, the Constitution places the responsibility for undertaking the inquiry fairly andsquarely on the High Court.It was argued for the Attorney-General that even if the High Court had jurisdiction, he isnot a proper respondent to the motion. In their Lordship’s view the Court of Appeal wereright to reject this argument.The redress claimed by the appellant under section 6 was redress from the Crown (nowthe state) for a contravention of the appellant’s constitutional rights by the judicial armof the state. By section 19 (2) of the Crown Liability and Proceedings Act 1966, it isprovided that proceedings against the Crown (now the state) should be instituted againstthe Attorney-General, and this is not confined to proceedings for tort.14

“ Section 3 debars the individual from asserting that anything done to him that isauthorized by a law in force immediately before August 31, 1962, abrogates, abridgesor infringes any of the rights or of freedoms recognized and declared in section or orparticularized in section 2”But section 3 does not legitimize for the purposes of section 1 conduct whichinfringes any of the rights or freedoms there described and was not lawful under thepre-existing law. There was no pre-existing law which authorized that of whichcomplaint is made in this case: section 3 (1) therefore does not over-ride theconstitutional right of appellant under section 1.True, he had no remedy, other than appeal for infringement of his right. In so far assection 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 benecessary to revert in grater detail when dealing with question (3), is not expressed tobe subject to section 3. it is general in its terms.So it applies to any interference with a right or freedom recognized any declared bysection 1, except in so far as that interference would have been lawful under the lawin force in Trinidad and Tobago on August 31, 1962. if it would not have been lawfulunder that previously existing law, section 6 crates a new right on the part of thevictim of the interference to claim a remedy for it described as “redress”. This remedyof “redress” co-exists with any other remedy to which the victim may have beenentitled 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 theprotection of the individual in the exercise and enjoyment of those rights andfreedoms granted? In his dissenting judgment Philips J.A. said:“ The combined effect of these section [1,2 and 3] in my judgment, gives rise tothe necessary implication that the primary objective of Chapter 1 of the Constitutionis to prohibit the contravention by the state of any of the fundamental rights orfreedoms declared and recognized by section 1”.Read in the light of the recognition that each of the highly diversified rights andfreedoms of the individual described in section 1 already existed, it is in theirLordships’ view clear that the protection afforded was against contravention of thoserights or freedoms by the state or by some other public authority endowed by lawwith coercive powers.The Chapter is concerned with public law, not private law. One man’s freedom isanother man’s restriction; and as regards, infringement by one private individual ofrights of another private individual, section 1 implicitly acknowledges that theexisting law of torts provided a sufficient accommodation between there conflicting16

ights and freedoms to satisfy the requirements of the new Constitution as respectsthose rights and freedoms that are specifically referred to.Some of the rights and freedoms described in section 1 are of such a nature that forcontraventions of them committed by anyone acting on behalf of the state or somepublic 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. Butfor others, of which “© the right of the individual to respect for his private and familylife” may be taken as examples, all that can be said of them is that at the time of theConstitution there was no enacted law restricting the exercise by the individual of thedescribed right or freedom.The right or freedom existed de facto. Had it been abrogated or abridged de facto byan executive act of the state there might not necessarily have been a legal remedyavailable to the individual at a time before the Constitution came into effect; as, forinstance, if a government servant’s right to join political parties had been curtailedby a departmental instruction.Nevertheless, de facto rights and freedoms not protected against abrogation orinfringement by any legal remedy before the Constitution came into effect are, sincethat date, given protection which is enforceable de jure under section 6 (1): of OlivierN. Buttigieg [1967] I. A. 115.The order of Maharaj J. committing the appellant to prison was made by him in theexercise of the judicial powers of the state; the arrest and detention of the appellantpursuant to the judge’s order was effected by the executive arm of the state. So if hisdetention amounted to a contravention of his rights under section 1 (a), it was acontravention by the state against which he was entitled to protection.Whether it did amount to a contravention depends upon whether the judge’s orderwas lawful under the law in force before the Constitution came into effect. At thattime the only law governing contempt of court in Trinidad and Tobago was thecommon 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 opportunityof 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 beendetermined 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 theonly remedy available to the appellant against an order for committal that wasunlawful on this or any other ground, would have been an appeal to the JudicialCommittee of the Privy Council, by special leave, to have the order set aside. No17

action in tort would have lain against the police or prison officers who had arrested ordetained him since they would have acted in execution of Judicial process that wasvalid on its face; nor would any action have lain against the judge himself foranything he had done unlawfully while purporting to discharge judicial functions: seeSirros 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 theircontravention.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 thecontempt of court with which he was charged did contravene a constitutional rights ofthe 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 intheir terms. While section 3 excluded the application of section 1 and 2 in relation toany law that was s in force in Trinidad and Tobago at the commencement of theConstitution it does not exclude the application of section 6 in relation to such law theright 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 lawfulavailable .” the clear intention to create a new remedy whether there was alreadysome other existing remedy or not .speaking of the corresponding provision of theconstitution of Guyana ,which is in substantially identical terms, the judicialcommittee 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 theConstitution was made. It was an expression which was first used in the Constitutionof 1961 and was not descriptive of any procedure which then existed under rules ofCourt for enforcing any legal right. It was a newly created right of access to the HighCourt to invoke a jurisdiction which was itself newly created. “As has been already mentioned, in his originated, in his originating motion in HighCourt of April 17, 1975, the appellant did allege the provision of section 1 (a) hadbeen and were being contravened in relation to him.He was thus entitled under section 6(1) to apply to the High Court for redress, withoutprejudice to his right also to pursue his remedy of appealing to the Judicialcommittee against the Judge order.What then was the nature of the “redress” to which the appellant was entitled? Notbeing a term of legal art it must be understood as bearing its ordinary meaning, whichin the short Oxford English Dictionary, 3 rd ed. 1944 is given as “Reparation ofsatisfaction or compensation for, a wrong sustained or the loss putting from this” Atthe time of the original of motion the appellant was still in prison. His right not to bedeprived of his liberty excused by due process of law was still being contravened; butby the time the case reached the court of appeal he had long ago served his sevenways and had been released.18

The contravention was in the past; the order practicable form of redress was monetarycompensation. 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 thiskind of an ordered in Jaundoo v. Attorney-General of Guyana. Reliance was placedup 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 ordersetc., could be made. An order for payment of compensation, it was submitted, did notamount to the enforcement of the rights that had been contravened.In their Lordships’ view an order fro payment of compensation when a rightprotection 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 onlypracticable 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 inpursuance of subsection (1) of this section,….. “ The very wide powers to makeorders, issue writs and give directions are ancillary to this.It has been urged upon their Lordships on behalf of the Attorney-General that so todecide would be to subvert the long established rule of public policy that a judgecannot be made personally liable in court proceedings for anything done by him in theexercise or purported exercise of his judicial functions. it was this considerationwhich weighed heavily with Hyatali C.J. and Corbin J.A. in reaching theirconclusion 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 ofthe Constitution is contravened by a judgment or order that is wrong and liable to beset aside on appeal for an error of fact or substantive law, even where the error hasresulted 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 nohigher 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 thatis fair. It is only errors in procedure that are capable of constituting infringements ofthe 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 ofthe fundamental rules of natural justice.Their Lordships do not believe that this can be anything but a very rare event. In thesecond place, no change is involved in the rule that a judge cannot be madepersonally liable for what he has done when acting or purporting to act in a judicialcapacity. The claim for redress under section 6 (1) for what has been done by a judge19

is a claim against the state for what has been done in the exercise of the judicialpower of the state.This is not vicarious liability; it is a liability of the state itself. It is not a liability intort at all; it is a liability in the public law of the state, not of the judge himself, whichhas 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 justicedoes not bring the case within section 6 unless it has resulted, is resulting or is likelyto result, in a person being deprived of life, liberty, security of the person orenjoyment or property.It is only in the case of imprisonment or corporal punishment already undergonebefore an appeal can be heard that the consequences of the judgment or ordercannot be put right on appeal to an appellate court.It is true that instead of, or even as well as, pursuing the ordinary course ofappealing to an appellate court, a party to legal proceedings who alleges that afundamental rule of natural justice has been infringed in the course of thedetermination of his case, could in theory seek collateral relief in an application to theHigh Court under section 6 (1) with a further right of appeal to the Court of Appealunder section 6 (4).The High Court, however has ample powers, both inherent and under section 6 (2), toprevent its process being misused in this way; for example, it could stay proceedingsunder section 6 (1) until an appeal against the judgment or order complained of hadbeen disposed of.Finally, their Lordships would say something about the measure of monetarycompensation recoverable under section 6 where the contravention of the claimant’sconstitutional rights consists of deprivation of liberty otherwise that by due process oflaw.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 lossof reputation. It is a claim in public law for compensation for deprivation of libertyalone. Such compensation would include any loss of earnings consequent on theimprisonment and recompense for the inconvenience and distress suffered by theappellant during his incarceration. Council for the appellant has stated that he doesnot intend to claim what in a case of tort would be called exemplary or punitivedamages.This makes it unnecessary to express any view as to whether money compensation byway 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 Courtwith a direction to asses the amount of monetary compensation to which the appellant20

is entitled. The respondent must pay the costs of this appeal and of the proceedins inboth courts below.For these reasons the appeal must be allowed and the case remitted to the High Courtwith a direction to assess the amount of monetary compensation to which theappellant is entitled. The respondent must pay the costs of this appeal and of theproceedings in both courts below.LORD HAILSHAM OF SAIT MARYLEBONE delivered the follow owingdissenting judgment. In this appeal I find, to my great regret, that I cannot concur inthe judgment of the majority.The proceedings have their origin in an accident the circumstances of which havealready been explored before the Judicial Committee, and are reported sub nomineeMaharaj V. Attorney-General for Trinidad and Tobago in [1977] 1 All E.R. 411; theytherefore do not require to be repeated in detail. Suffice it to say that the presentappellant, a barrister, was committed for seven days on a charge of contempt in theface of the court by a judge of the High Court of Trinidad and Tobago, a convictionagainst which he appealed by special leave. In the result his appeal was allowed andhis conviction set aside on two substantive grounds, the first of which is not, and thesecond of which is, relevant to the present appeal.The first, of great importance to the appellant, but no longer revelant, was that, as Iunderstand it, on a correct analysis of the facts, he had not in fact committed thecontempt of which he was charged.The second which is at the heart of the present appeal was, in effect that he had beendeprived of his liberty without due process of law. This was because the judge neverexplained to him with sufficient clarity or in sufficient detail the nature and substanceof the contempt of which he stood accuse.We are clearly bound by the decision in the earlier appeal, and in the present appeal itwas never argued that the proceedings before the committing judge were not acontravention of the Constitution of Trinidad and Tobago in the form in which it wasthen in force.On the same day as his committal, the appellant commenced the present proceedingsby notice of motion under section 6 of the Constitution (of which more later) andorder 55 of the rules of the court.They were at first adjourned, but when they came on for hearing were dismissed byScott J. on a number of grounds. As a result of Scott J.’s decision the appellant servedhis sentence and has therefore been deprived of his liberty for seven days withoutredress other than the subsequent declaration of his innocence contained in thedecision of the Judicial Committee above referred to and their conclusion that he hadbeen convicted without a proper opportunity to defend himself. On appeal from the21

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 fromtheir decision the appellate court by virtue of section 109 of the 1976 Constitution ofTrinidad and Tobago.The notice of motion claims a variety of different types of relief, but, in view of theevents which have supervened, it seems to me that the only one which can do theappellant 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 andTobago 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 inaddition the committing judge, but he was never served with the notice and noremedy is now sought against him.Accordingly the only question in this appeal is whether the state is liable to paymonetary compensation to the appellant. It is common ground between the partiesthat any right to compensation which may exist can only arise by virtue of theConstitution in force at the time of the appellant’s committal. That is the Constitutionof 1962. apart from the enacting sections of the order the revelant provisions arecontained in Chapter 1, sections 1,2,3, and 6, and of these sections 1,3 and 6 are ofcritical importance.The respondent placed in the forefront of his argument two contentions, which Imention only to dismiss them because I agree entirely with the reasons given by themajority for their refection.They were accepted by Scott J., but not by any member of the Court of Appeal. Theywere (1) that the High Court in which the proceedings originated, had no jurisdictionto entertain them and (2) that, in any event, they failed since the Attorney-Generalwas not an appropriate party. On the assumption (which I make for this purpose) thatthe remedy of damages is otherwise available to the appellant against the state, itappears to me that the Attorney-General is the appropriate party by virtue of section19 of the Crown (state) Liability and Proceedings may have available, the notice ofmotion to the High Court is an appropriate, though not necessarily the only, means ofprocedure by virtue of section of 6 the 1962 version of the of the Constitution, andorder 55 of the rules of court.The case therefore stands or falls entirely upon the availability of a remedy by way ofdamages or compensation against the state in respect of the action of the judge in sofar as this was a contravention 1962. since in my opinion such a remedy is not soavailable, 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, inform, enacted for former colonial dependencies of the Crown on their attaining22

independence, as the result of negotiations and discussions relating to the terms onwhich independence should be granted. Many of them (including that of Trinidadand Tobago) have been amended since independence (sometimes more that once), butthey still retain strong family resemblances.One of the main features of those constitutions is the enumeration and entrenchmentof certain rights and freedoms. In the 1962 version of the Constitution of Trinidad andTobago these, referred to as “human rights and fundamental freedoms”, are containedin 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 andenjoyment of property, and the right not to be depraved thereof except by due processof law”The nature of theses rights and freedoms and the purposes of their entrenchment hasbeen discussed more that once in reported cases. They already exist, and the purposeof the entrenchment is to protect them against encroachment. In a Jamaican case LordDevlin put it thus: they proceed.“ upon the presumption that the fundamental rights…. Are already secured to thepeople of Jamaica…. The laws in force are not to be subjected to scrutiny in order tosee whether or not they conform to the precise terms of the protective provisions. Theobject of these provisions is to ensure that no future enactment shall in any matterwhich the chapter covers derogate from the rights which at the coming into force ofthe Constitution the individual enjoyed” per Lord Devlin in Directory of PublicProsecutions 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 the1962 Constitution of Trinidad and Tobago itself:“Chapter 1 of the Constitution of Trinidad and Tobago, like the correspondingChapter 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 andfundamental freedoms that are referred to in sections 1 and 2 are already secured tothe people of Trinidad and Tobago by the law in force ther at the commencement ofthe Constitution’ (p.244.)the purpose of entrenchment was also described by Lord Diplock in another caserelating 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 thoseprovisions which were regarded as important safeguards by the political parties inJamaica, minority and majority alike, who took part in the negotiations which led upto the Constitution, should not be altered without mature consideration by theParliament and the consent of larger proportion of its member that bare majorityrequired for ordinary laws”and again:23

“the provisions of this Chapter form part of the substantive law of the state and untilamended by whatever special procedure is laid down…. Impose a fetter upon the exerciseby the legislature, the executive, and the judiciary of the plentitude of their respectivepowers.” (p.213)in other words the entrenchment is designed to preserve and protect what already existsagainst encroachment, abrogation, abridgement or infringement. It is concerned withfuture abuses of authority, usually state authority, and it is largely preoccupied with thepossibility 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, inidentifying the rights and freedoms entrenched begins with the words:“ It is hereby recognized and declared that in Trinidad and Tobago there have existed andshall continue to exist without discrimination by reason of race, origin, colour, religion orsex, 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 inforce in Trinidad and Tobago at the commencement of this Constitution”by the interpretation section (section 105) the expression “law” includes “any unwrittenrule of law” and section 6 (of which more later) related only to proceedings for allegedcontravention of sections 1 and 2 (the second of which is mainly framed to invalidatelegislation which contravenes section 1), and to this extent must be read as subject tosection 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 freedomsprotected by sections 1 and 2 of the Constitution, one must look first at the extent of theserights as they existed at the date of the commencement of the Constitution. They may beextended or improved after that date by subsequent acts of the state acting appropriatelythrough any of its branches. But they are only protected against encroachment in the formin which they existed at the commencement date.This applies even to the right to life where the death penalty was in force at thecommencement. Granted due process of law, the right to life is not infringed by judicialexecution (cf. de Freitas v. Benny [1976] A.C 239).In thus becomes important to discuss in what form the rights to liberty and security ofperson and to due process existed in Trinidad and Tobago at the commencement of theConstitution of 1962, and for this purpose, the extent both of state 9then Crown) andjudicial 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 inTrinidad is the Crown (State) Liability and Proceedings Act 1966, enacted after theConstitution of 1962) a petition of right would lie against the Crown for certain types of24

emedy, 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 prerogativeand universally instead upon. Apart from the petition of right procedure and somestatutory exceptions the Crown was neither liable itself nor vicariously bound to answerfor 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 orcriminal, and although the Crown ordinarily ensured the satisfaction of civil judgments itdid so of grace and not of necessity. A judge, of course, it is not in the ordinary sense aservant. But he had a further immunity of his own. Judges, particularly High Courtjudges, were not, and are not, liable to civil actions in respect of their judicial actsalthough, of course, in cases of corruption or criminal misconduct, they have never beenimmune from criminal process or impeachment.This is trite law, and I need do no more than refer to the very full and interestingdiscussion 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 oflaw, or, in the case of a High Court judge, and perhaps not only then, if he exceeded hisjurisdiction, or if he committed a breach of natural justice, or, subject to what I have saidabout criminal liability, if he acted maliciously or corruptly.There could therefore be no kind of action against a judge in circumstances like thepresent, and the state could not be liable either. It could neither be impleaded itself norcould it be vicariously liable in respect of a matter for which the principal wrong doerwas 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 Trinidadand 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, thecreature of modem statute, was at common law largely confined to technical procedureslike writ of error or motion in arrest of judgment.In case, like the present, for committal for contempt the right of redress was even morerestricted. In the United Kingdom a general right of appeal was conceded only in 1960. itseems that in Trinidad (Maharaj v. Attorney-General of Trinidad and Tobago [1977] 1All E.R. 411) an appeal always lay by special leave to the privy council, and we were toldthat a general right of appeal to the Court of Appeal has now been conceded. But apartform these qualifications, the right of redress in cases of contempt was limited toapplication to the committing judge for release, or, presumably, application for a writ oferror for any error for any error on the face of the record. In no case did it extend todamages. 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 theservant of the Crown (see section 2 (2) (h) (v) and 4 (6)). There is no reference, of courseto judicial community for acts contravening the entrenched rights and freedoms. But I donot myself believe that this was because no such immunity existed (as must be the case ifthe majority decision in this case be correct).Personally I find it impossible to believe that, if a right of action for damages in such acase did exist, as the result of the Constitution of 1962, either against the judge or againstthe state, the draftsman of the Act of 1966 would have allowed it to pass sub selentio, andwould not have made express reference to it. At all event what is certain is that no suchright of action against the state or judge was conferred by the Crown (State) Liability andProceedings Act 1966.We now reach the Constitution of 1962 itself. The first sections to construe are sections 1and 3, and, of these, section 1 is the more important, though I think they are to be readytogether. As I read section 1, it means that the right to liberty and security of person as itexisted at the commencement of the Constitution and therefore in the form in which it isentrenched did not extend to give a right to damages for unlawful judicial acts, nor, if Iam right in my analysis, did a contravention by a judge of the right of due process giveany such right, I am quite willing to concede that for whatever reason a failure toformulate a criminal charge including one for contempt correctly was not authorized bylaw at the time (which included the Bill of Rights 1688), and that failure to do so wouldresult 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 Englishlawyers at least as far back as the stature 28 Edward 3 c. 3, repeated in the Petition ofRight Act 1627 and the Habeas Corpus Act 1640) any easier to define exhaustively thathave the American courts, but I am very ready to assume that any failure of naturaljustice such as conviction by or before a biased, interested, or corrupt tribunal is stuckdown by the prohibition or even that a complete misdirection as to the burden of proof asin Woolmington v.Director of Public Prosecutions [1935] A.C 462 would do so, or that repeatedinterruptions by a judge if carried too far, might also be affected, since this would disruptthe conduct of the defense. It so, I can see no reason to exclude a failure sufficiently toformulate the charge.Exactly at what stage deprivation of due process fades into mere judicial error I do notfind it easy to say and if I am right it probably never occurred to the framers of theConstitution to ask themselves this question. The results to the individual can be equallyobnoxious whichever side of the line such errors fall. From the point of view of judicialintegrity, judicial dishonesty is by far the most serious. From the point of view of theliability of the state to pay compensation, I am not sure that any consideration of public26

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 neitherclass of error gives a right of damages, but if I am wrong and the majority decisioncorrect, a new and probably unattractive branch of jurisprudence is almost certain to arisein Trinidad and elsewhere, based on the distinction between those judicial errors whichdo, 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, thetime has now come to examine the effect of section 6 of the Constitution of 1962. Does itmake any different? Does it grant what had hitherto been withheld, a right to damages incases of judicial misbehavior, albeit limited to deprivation of due process? The majoritydecision 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 ofthe 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 actionwith respect to the same matter which is lawfully available, that person may apply to theHigh Court shall have original jurisdiction (a) to hear and determine any applicationmade by any person in pursuance of subsection (1) of this section;…. And may makesuch orders, issue such writs and give such directions as it may consider appropriated forthe purpose of enforcing, or securing the enforcement of, any of any of the provisions ofthe said foregoing sections or section to the protection of which the person concerned isentitled … (4) any person aggrieved by any determination of the High Court under thissection Amy appeal therefrom to the Court of Appeal. (5) Nothing in this section shalllimit the power of Parliament to confer on the High Court or the Court of Appeal, suchpowers as Parliament may think fit in relation to the exercise by the High Court or theCourt of Appeal, as the case may be, of its jurisdiction in respect of matters arising underthis Chapter”it is perhaps worth marking that the side note to the whole section reads: “Enforcement ofprotective provisions” This is the section which is alleged to have made by necessaryintendment 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 ofjudicial misconduct, even though the judge himself remains immune, a possibility Idiscuss later.The first comment which I feel myself constrained to make is that I find it more that alittle 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 andin the light of section 3 set out above) should begin with the somewhat anodyneexpression “for the removal of doubts it is hereby declared” An expression of this kind isnot unusual in Westminster model legislature ,but I must say that if the section beintended to create a fundamental change in the accepted law of state liability [as it mustbe if the appellant’s case and the majority decision be correct]it will be the first time that27

I have seen this particular phrase used in such a contest, and it is particularly odd, since in1962 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 thekind. What it purport to do in subsection [1] is to provide a forum and a procedureindependent of any other remedy available for person desiring to secure redress againstcontraventions of section 1 and 2. it does not specify the type of relief which maybegranted in any case. But subsection [2] does give examples, the making of orders, theissuing of writs, and the giving of directions of the kind of remedy which maybeavailable to an applicant seeking redress.It is by no means obvious, at least from those examples, that a totally new type of actionfor damages against the state in respect of action by a high court judge was in theforefront of the legislatures’ minds, or in their minds at all. I take it the most obviousconstruction of subsection [2] is not that it provides new type of relief where none wouldotherwise exist, but that it gives the High court power to spell out the legal consequencesof 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 theappellant, and it is accepted by the majority decision, that either or both of these words issufficiently wide, or at least sufficient indeterminate in meaning, to include a right todamages or a direction for the assessment of damages as one of the remedies available tothe 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 substantiallyanalogous provisions of the Guyana Constitution. In that case, in allowing the applicant’sappeal, the Board remitted the motion to the court of first instance with a direction to hearand determine it on its merits, and, if these were found to be favorable to the applicant, toassess 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 tothe effect that the references in section 6 to “redress” and “enforcement” include, or atleast may include, a right to damages as a form of relief. Though the contrary wascontested strongly on behalf of the respondent, I see no reason to differ from the majorityconclusion in this.Unhappy, I am unable to see that this disposes of the matter. On the contrary, I find thatJaundoo’s case aptly illustrates the difficulty that I feel. In Jaundoo’s case the applicantwas seeking redress which would have had the effect of preventing the taking of herland for the making of a road. At the time of her Application the land had not beentaken. By the time of the appeal to the Privy council, the land had been taken. and theroad built and no compensation paid. But the right to the enjoyment of landed propertyis, and for a long time has been, subject to the right of the state to acquire it28

compulsorily on payment of .compensation .This is part of the statute law ofvirtually every civilized country.An attempt by the executive, or, under a written Constitution, by the legislature, toacquire compulsorily land without compensation is unlawful, and, if the applicant’scase in Jaundoo v. Attorney-General of Guyana[1971] A.C. 972 were established, theact of the executive in doing so, whether or not under the purported authority of a n act ofthe legislature contravening the Constitution, would, in the case of a written Constitutionon the models we are discussing ,be a trespass, giving a right to damages at commonlaws. at the time of there appeal the lawfulness of the acquisition was not determined andthe 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 wouldhave been a right of action for damages against the executive for trespass, that is in anordinary action of tort. Since the constitution provide what is intended as a speedyremedy by way of notice of motions, it was so far as I can see, wholly appropriate for theboard to order compensatory damages as part of the redress in the event of the meritsbeing determined in favour of the applicant.In my view it is quite another thing to contend that a section of essentially a proceduralcharacter which embraces the possibility of damages where damages have always beendue [e.g where a trespass has been committed]confers aright of damages against the statefor judicial error where damages have ever been available, and even if available, have notbeen available against the state.I am, of course, not to be understood as suggestion that a notice of motion under section 6was in appropriate procedure in so far as its privy council. It was not as beneficial to theappellant, as the appeal to privy council ultimately proved. As the privy council asJurisdiction to declare (as the High Court probably would not have had) not merely thatthe appellant had been deprived of due process, but that he was actually innocent of thecharge.I am simply say that, on the view I take, the expression “redress” in subsection (1) ofsection 6, and the expression “enforcement” in subsection (2), although capable ofembracing damages where damages are available as part of the legal consequences ofcontravention, do not confer, and are not in the context capable of being construed so asto confer, are right of damages where they have not hitherto being available, in this caseagainst 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 committingjudge was held to have done in the instant case. Such a right to the damages has neverexisted either against the judge or against the state and is not, my option, conferred bysection 6.The third point I make on the majority construction of section 6 is that, in my view atleast, it proved too much both parties, and, as I understood it, the majority in their29

conclusion, have shied away from the possibility that damages might equally have beenclaimed against the judge personally. But I do not present understand why. If section 1, 2and 6 of the constitution give a right of action for damages against the state for an actionby the judge in circumstances in which the state would have had absolute immunity priorto 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 thecircumstance protection by section 3, that redress under section 6 must include damagesin such a case, and that the prior rule of law giving immunity has in consequence noapplication. If this be correct, in order to save the judge’s immunity, further legislationwould be urgently necessary, and, since this would involved an amendment to theconstitution, 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 ofliability for damages for the wrong of another when the wrongdoer himself is under noliability at all the wrong itself is not a tort or delict. It was strenuously argued for theappellant that the liability of the state in the instant case was not vicarious, but some sortof primary liability.But I find this equally difficult to understand. It was argued that the state consisted ofthree branches, judicial, executive and legislative, and that as one of these branches, thejudicial, had in the instant case contravened the appellant’s constitutional rights, the statebecame, by virtue of section 6, responsible in damages for the action of its judicialbranch. This seems a strange and unnatural way of saying that the judge had committedto prison the appellant who was innocent and had done so without due process of law andthat 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 wasvicariously 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 isliable as a principal even thought the judge attracts no liability to himself and his act isnot a tort. To reach this conclusion is indeed to write a good deal into a section whichbegins innocently enough with the anodyne words “for the removal of doubts it is herebydeclared.”If I were at all of the opinion that section 6 did unambiguously confer a right of damagesin circumstances like the present, I would not, of course, be deterred from saying so inview 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 theinconveniences which I believe to exits.In the first place, as I understand the decision of the majority it is that a distinction mustbe drawn between a mere judicial error and a deprivation of due process as in the instantappeal, and that the former would not, and the latter would, attract right of compensationunder the presents decision, even though in each case the consequences were as grave. I30

have already touched on this. I do not doubt the validity of the distinction viewed as alogical concept thought the line might be sometimes hard to drawn. But I doubt whetherthe distinction, important as it may be intellectually, would be of much comfort to thoseconvicted as a result of judicial error as distinct from deprivation of due process or wouldbe understood as reasonable by many members of the public, when it was discovered thatthe victim of a contravention of section 1 of the Constitution who would be fullycompensated.As a result of the majority decision the case will return to the High Court with a directionto assess damages. I doubt whether their task is as easy as might be supposed. We aretold that this is not a n action of tort. Indeed, if it were, the appellant would be out ofcourt as the result of the previsions of the Crown (State) Liability and Proceedings Act1966, already noticed, unless, of course, that Act were itself to be attached as violatingthe 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 whatprinciples are damages to be assessed? Are punitive damages available on the basis ofRookes 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 beawarded in as much as the judge is not a servant, and the state’s liability is said not to bevicarious? Are damages to include an element for injured feelings or damage toreputation? No doubt all these questions are capable of solution, especially if tort is takento be a sound analogy. But on what principle is it a sound analogy? At present the sea isan 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 thelegislature form improving on the rights and fundamental freedoms quarantined by theConstitution if they wish to do so and though I might well not be of there number I canwell understand that the members of a legislature inspired by a zeal to the state mightwell wish to make such an improvement.What I venture to question is whether they have done so in Trinidad and Tobago bysection 6 of the Constitution of 1962, and if they have not, as I feel myself constrained tobelieve, it would follow that this appeal should be dismissed.31

2. JURISDICTION AND OUSTER CLAUSES2.1 Anisminic case2.2 A.G.V LOHAY AKNONAAY & ANOR CIVIL APPEAL NO.31 OF 1994, CA2.3 BAWATA 7 5 Others v. Registrar of societies, Misc. Civ. Cause No. 27 of 19972.4 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 of1977, HC at DSM2.7 Mwanza Restaurant v. Mwanza Municipal Director, Misc. Civ. Cause No.3 of1987, HC at Mwanza2.8 OTTU v. Attorney General 7 Anor. Civil Case No. 53 of 1994, HC at Dar-es-Salaam2.9 R V Panel on Take-Overs and mergers, ex p Datafin [1987] Q B. 815In this, Unhappily, I am unable to see that this disposes of the matter on the contrary, Ifind that jaundoo‘s case aptly illustrate the difficulty that I feel. In Jaundoo’s case the applicant wasseeking redress which would have had the effect of preventing the taking of her land forthe making of a road. At the time of her application the land had not been taken . by thetime of the appeal to the privy council, the land had been taken and the road built and nocompensation paid. But the right to the enjoyment of the landed property is, and for alongtime has been, subject to the right of the state to acquire it compulsorily on payment ofcompensation.This is part of the statute law of virtually every civilized country. an attempt by theexecutive, or, under a written constitution, by the legislature, to acquire compulsorilyland 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 indoing so, whether or not under the purported authority of un act of the legislaturecontravening the constitution, would, in the case of a written constitution on the modelswe 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 thecase was therefore remitted to the court of first instant to determine the merits .aconsequence of the merits being determined in the applicants32

‘s favour would have been a right of action for damages against the executive fortrespass, that is in an ordinary action of tort. Since the Constitution provided what wasintended 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 inthe event of the merits being determined in favour of the applicant. In my view it isquite another thing to contend that a section of essentially a procedural character whichembraces the possibility of damages where damages have always been due (e.g. where atrespass has been committed) confers a right of damages against the state for a judicialerror where damages have been available, and even if available, have not been availableagainst the state.I am, of course, not to be understood as suggesting that a notice of motion under section 6was an inappropriate procedure in so far a s it claims a declaration. It was in fact analternative to the appeal to the Privy Council ultimately proved, as the Privy Council hasjurisdiction to declare (as the High Court probably would not have had) not merely thatthe appellant had been deprived of due process, but that he was actually innocent of thecharge. I am simply saying that, on the view I take, the expression “redress” insubsection (1) of section 6, and the expression “ enforcement” in subsection (2), althoughcapable of embracing damages where damages are available as part of the legalconsequences of contravention, do not confer and are not in the context capable of beingconstrued so as to confer, a right of damages where they have not hitherto beingavailable, 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 judgewas held to have done in the respect of judicial misconduct, even though the judgehimself remains immune, a possibility I discuss later. The first comment which I feelmyself constrained to make is that I find it more that a little surprising that a sectiongiving a totally new cause of action against the state (particularly prior to the enactmentof the Crown Liability and proceedings Act 1966 and in the light of section 3 set outabove) should begin with the somewhat anodyne expression “for the removal of doubts itis hereby declared” An expression of this kind is not unusual in Westminster modellegislation, but I must say that if the section be intended to create a fundamental changein the accepted law of state liability (as it must be if the appellant’s case and the majoritydecision be correct) it will be the first time that I have seen this particular phrase used insuch a context, and it is particularly odd, since in 1962 the Crown Liability andProceedings Act had not yet been passed.The second point is that the section does not at first sight support to do anything of thekind. What it purports to do in subsection (1) is to provide a forum and a procedureindependent of any other remedy available for persons desiring to secure redress againstcontraventions of section 1 and 2. it does not specify the type of relief which may begranted in any one case. But subsection (2) does give examples, the making of orders, theissuing of writs, and the giving of directions, of the kind of remedy which may beavailable to an applicant seeking redress.33

It is by no means obvious, at least from these examples, that a totally new type of actionfor damages against the state in respect of actions by a High Court judge was in theforefront of the legislator’s minds, or in their minds at all. I take it that the most obviousconstruction of subsection (2) is not that it provides new types of relief where none wouldotherwise exist, but that it gives the High Court power to spell out the legal consequencesof contravention by providing the appropriate orders, whether by declaration orotherwise, 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 theappellant, and it is accepted by the majority decision, that either or both of these words issufficiently wide, or at least sufficiently in determinate in meaning, to include a right todamages or a direction for the assessment of damages as one of the remedies available tothe High Court. Not unnaturally the attention of the Board was directed to its decision inJaundoo v. Attorney- General of Guyana [1971] A.C. 972, decision based on thesubstantially analogous provisions of the Guyana Constitution. In that case, in allowingthe applicant’s appeal, the Board remitted the motion to the court of first instance with adirection to hear and determine it on its merits and, if these were found to be favorable tothe 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 tothe effect that the references in section 6 to “redress” and “enforcement” include, or atleast may include, a right to damages as a form of relief. Though the contrary wascontested strongly on behalf of the respondent, I see no reason to differ from the majorityconclusion 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 notfind it easy to say and if I am might it probably never occurred to the framers of theConstitution to ask themselves this question. The results to the individual can be equallyobnoxious 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 thatany consideration of public policy justifies these distinctions, logically unassailable asall, 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, sinceneither class of error gives a right of damages, but if I am wrong and the majoritydecision correct, a new, and probably unattractive branch of jurisprudence is almostcertain to arise in Trinidad and elsewhere, based on the distinction between those judicialerrors 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, thetime has now come to examine the effect of section 6 of the Constitution of 1962. Does itmake any difference? Does it grant what had hitherto been withheld, a right to damages34

in cases of judicial misbehavior, albert limited to deprivation of due process? Themajority 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 ofthe 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 otheraction with respect to the same matter which is lawfully available, that person may applyto the High Court shall have original jurisdiction (a) to hear and determine anyapplication made by any person in pursuance of subsection (1) of this section;.. and maymake such orders, issue such writs and give such directions as it may considerappropriate for the purpose of enforcing, or securing the enforcement of, any of theprovisions of the said foregoing section or section to the protection of which the personconcerned is entitled …. (4) any person aggrieved by any determination of the HighCourt under this section may appeal there from to the Court of appeal. (5) nothing in thissection shall limit the power of Parliament to confer on the High Court or the Court ofappeal, 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 orthe Court of Appeal, as the case may be, of its jurisdiction in respect of matters arisingunder this Chapter”.It is perhaps worth remarking that the side note to the whole section reads: “Enforcementof protective provisions.” This is the section which is alleged to have made by necessaryintendment fundamental changes in the long standing rules of law conferring immunityon the judges, on servants of the executive acting on a judge’s warrant, and on the Crownor state, and providing that the state should pay damages in procedures like writ of erroror motion in arrest of judgment. In case, like the present, for committal for contempt theright of appeal was conceded only in 1960.It seems that in Trinidad (Maharaj v. Attorney-General of Trinidad and Tobago [1977] 1All E.R. 411) an appeal always lay by special leave to the Privy Council, and we weretold that a general right of appeal has now been conceded. But, apart form thesequalifications, the right of redress in cases of contempt was limited to application to thecommitting 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 carefullyto exclude liability whether direct ,personal or vicarious for judicial act, and the office ofjudge from the definition of servant of the crown (see section 2 (2) (h) (v) and 4(6). thereis no reference, of course, to judicial immunity for acts contravening the entrenched rightand 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 acase did exist, as the result of the constitution of 1962, either against the judge or againstthe state, the draft man of the act of 1966 would have allowed it to pass silentio, andwould not have made express reference to it. At all events, what is certain is that no such35

ight of action against the state of a judge was conferred by the crown (state)liability andproceedings Act 1966.We now reach the constitution of 1962 itself. The first sections to construe are section 1and 3, and, of this , section 1 is the more important, though I think they are to be readtogether. As I read section 1 it means that the right to liberty and security of person as itexisted at the commencement of the constitution and therefore in the form in which it isentrenched did not extend to give a right to damages to lawful judicial act, nor, if I amright in my analysis, did a contravention by a judge of the right of due process give anysuch rights.I am quite willing to concede that for whatever reasons a failure to formulate a criminalcharge including one for contempt correctly was not authorized by law at the time (whichincluded bill of rights 1688), and that failure to do so would result in a conviction beingset 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 28Edward 3 c. 3, repeated in the petition of right Act 1627 and the Habeas Corpus Act1640) any easier to define exhaustively than have the American Courts, but I am veryready to assume that any failure of natural justice such as conviction by or before abiased, interested or corrupt tribunal is struck down by the prohibition or even that acomplete misdirection as to the burden of proof as in Woolmington v. Director of PublicProsecutions. [1935] A.C. 462 would do so, or that repeated interruption by a judge ifcarried too far, might appropriately though any of its branches.But they are only protected against encroachment in the form in which they existed at thecommencement date. This applies even to the right to life where the death penalty was inforce at the commencement. Granted due process of law, the right to life is not infringedby 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 ofperson and to due process existed in Trinidad and Tobago at the commencement of theConstitution of 1962, and for this purpose, the extent both of state (then Crown) andjudicial 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 inTrinidad is the Crown (State) Liability and Proceedings Act 1966, enacted after theConstitution of 1962) a petition of right would lie against the Crown for certain type ofremedy, but only consent of the Crown signified by the Attorney-General’s fiat (thoughin 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 prerogativeand universally instead upon. Apart from the petition of right procedure and somestatutory exceptions the Crown was neither liable itself nor vicariously bound to answerfor wrongs committed by its servants. These servants however, from the highest Ministerto 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 noexcuse or immunity from process civil or criminal, and although the Crown ordinarilyensured 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 hisown. Judges, particularly High Court judges, were not, and are not, liable to civil actionsin respect of their judicial acts, although, of course, in cases of corruption or criminalmisconduct, 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 interestingdiscussion on the subject in the Court of Appeal in Sirros v Moore [1975] Q.B. 118. thiscivil immunity protected the judge whether he committed a mere error of law, or, in thecase of a High Court judge, and perhaps not only then, if he exceeded his jurisdiction, orif he committed a breach of natural justice, or subject to what I have said about criminalliability, if he acted maliciously corruptly. There could therefore be no kind of actionagainst 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 matterfor which the principal wrong doer was not himself liable, and was acting in a judicialcapacity and not as a servant.Until the (United Kingdom) Crown Proceedings Act 1947 and its analogue in Trinidadand 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, thecreature of modern stature, was common law largely confined to technical.The purpose of entrenchment was also described by Lord Diplock in another case relatingto Jamaica (Hinds v. The Queen [1977] A.C. 195, 214) as follows:“The purpose served by this machinery for ‘entrenchment’ is to ensure that thoseprovisions which were regarded as important safeguards by the political parties inJamaica, minority and majority alike, who took part in the negotiations which led up tothe Constitution, should not be altered without mature consideration by the Parliamentand the consent of a larger proportion of its members that the bare majority required forordinary laws.”And again:“The provisions of this Chapter form part of the substantive law of the state and untilamended by whatever special procedure is laid down…. Impose a fetter upon the exerciseby the legislature, the executive, and the judiciary of the plenitude of there respectivepowers.” (p.213.)In other words the entrenchment is designed to preserve and protect what already existsagainst encroachment, abrogation, abridgement or infringement. It is concerned withfuture abuses of authority, and it is largely preoccupied with the possibility of abuse ofauthority by the legislature (see section2), or the executive, though doubtless as LordDiplock said it binds also the judiciary and inferior authority, and presumably alsoindividuals. Except in so far as it protects against future abuse, entrenchment does notpurport 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 andshall continue to existed and shall continue to exist without discrimination by reason ofrace, origin, colour, religion or se, the following human rights and fundamentalfreedoms……..” (emphasis mine) and section 3 provides“Section 1 and 2 of this Constitution shall not apply in relation to any law that is in forcein Trinidad and Tobago at the commencement of this Constitution.”By the interpretation section (section 105) the expression “law” includes “any unwrittenrule of law” and section 6 (of which more later) relates only to proceedings for allegedcontravention of sections 1 and 2 (the second of which is mainly framed to invalidatelegislation which contravenes section 1), and to this extent must be read as subject tosection 3 in so far as this limits the application of section 1 to existing rules of law. Itfollows that, in order to construe the meaning and extent of the rights and freedomsprotected by sections 1 and 2 of the Constitution, one must look first at the extent of theserights 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 acting6 of the 1962 version of the Constitution, and orders 55 of the rules of court. The casetherefore stands or falls entirely upon the availability of a remedy by way of damages orcompensation against the state in respect of the action of the judge in so far as this was acontravention of the entrenched rights of freedoms guaranteed by the Constitution of1962. since in my option such a remedy is not so available, it would follow that in myview the appeal should be dismissed.The 1962 Constitution is one of a family of constitutions similar, but not now identical, inform, enacted for former colonial dependencies of the Crown on their attainingindependence, as the result of negotiations and discussions relating to the terms on whichindependence should be granted. Many of them (including that of Trinidad and Tobago)have been amended since independence (sometimes more than once), but they still retainstrong family resemblances. One of the main features of those constitutions is theenumeration and entrenchment of certain rights and freedoms. In the 1962 version of theConstitution of Trinidad and Tobago these, referred to as “human rights and fundamentalfreedoms”, are contained in Chapter 1, and in the words of section 1 of this chapterinclude:“the right of the individual to life, liberty, security of the person and enjoyment ofproperty, 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 beendiscussed more that once in reported cases. The first point to observe is that they do notclaim to be new. They already exist, and the purpose of the entrenchment is to protectthem 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 peopleof Jamaica……the laws in force are not to be subjected to scrutiny in order to seewhether or not hey conform to the precise terms of the protective provisions. The object38

of these provisions is to ensure that no future enactment shall in any matter which thechapter covers derogate from the rights which at the coming into force of the Constitutionthe 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 1962Constitution of Trinidad and Tobago itself:“Chapter 1 of the Constitution of Trinidad and Tobago, like the corresponding Chapter IIIof 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 freedomsthat are referred to in sections 1 and 2 are already secured to the people of Trinidad andTobago by the law in force there at the commencement of the Constitution.” (p. 244.) andin the present appeal it was never argued that the proceedings before the committingjudge were not a contravention of the Constitution of Trinidad and Tobago in the form inwhich it was then in force.On the same day as his committal, the appellant commencement the present proceedingsby notice of motion under section 6 of the Constitution (of which more later) and order55 of the rules of court. They were at first adjourned, but when they came on for hearingwere dismissed by Scott J., the Court of Appeal (Hyatali C. J. and Corbin J. A., PhillipsJ.A. dissenting) though differing in part from the judge dismissed the appeal and fromtheir decision the appellant now appeals, by leave, to their Lordships acting as the now doas an appellate court by virtue of section 109 of the 1976 Constitution of Trinidad andTobago.The notice of motion claims a variety of different types of relief, but, in view of theevents which have supervened, it seems to me that the only one which can do theappellant 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 therepresentative of the state by virtue of section 19 of the Crown (now the State) Liabilityand 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 monetarycompensation to the appellant. It is common ground between the parties that any right tocompensation which are exist the Constitution in force at the time of the appellant’scommittal.That is the Constitution of 1962. Apart from the enacting sections of the order therelevant provisions are contained in Chapter 1, sections 1, 2, and 6, and of these sections1, 3 and 6 are of critical importance. The respondent placed in the forefront of hisargument two contentions, which I mention only to dismiss them because I agree entirelywith 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 nojurisdiction 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, itappears to me that the Attorney –General is the appropriate party by virtue of section 19of the Crown (State) Liability and Proceedings Act 1966, and that whatever otherproceedings may have been available, the notice of motion to the High Court is anappropriate, though not necessarily the only, means of procedure by virtue of sectionjustice has been infringed in the course of the determination of his case, could in theoryseek collateral relief in an application to the High Court under section 6 (1) with a furtherright of appeal to the Court of Appeal under section 6 (4). The High Court, however, hasample powers, both inherent and under section 6 (2), to prevent its proceeds beingmisused in this way; for example, it could stay proceedings under section 6 (1) until anappeal against the judgment or order complained of had been disposed of.Finally, their Lordships would say something about the measure of monetarycompensation recoverable under section 6 where the contravention of the claimant’sconstitutional 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 ofreputation. 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 imprisonmentand recompense for the inconvenience and distress suffered by the appellant during hisincarceration. Counsel for the appellant has state that he does not intend to claim what ina case of tort would be called exemplary or punitive damages. This makes it unnecessaryto express any view as to whether money compensation by way of redress under section6 (1) can ever include an exemplary or punitive award.For these reasons the appeal must be allowed and the case remitted to the High Courtwith a direction to assess the amount of monetary compensation to which the appellant isentitle. The respondent must pay the consists of this appeal and of the proceedings in bothcourts below.LORD HAILSHAM OF SAINT MARYLEBONE delivered the following dissentingjudgment. In this appeal I find, to my great regret, that I cannot concur in the judgment ofthe majority. The proceedings have their origin in an incident the circumstances of whichhave already been explored before the Judicial Committee, and are reported sub nomineeMaharaj v. Attorney-General for Trinidad and Tobago in [1977] 1 All E.R. 411; theytherefore do not require to be repeated in detail. Suffice it to say that the presentappellant, a barrister, was committed for seven days on a charge of contempt in the faceof the court by a judge of the High Court of Trinidad and Tobago, a conviction against40

which he appealed by special leave. In the result his appeal was allowed and hisconviction set aside on two substantive grounds, the first of which is not, and the secondof 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, thehad not in fact committed the contempt of which he was charged. The second which is atthe heart of the present appeal was, in effect, that he had been deprived of his libertywithout due process of law. This was because the judge never explained to him withsufficient clarity or in sufficient detail the nature and substance of the contempt of whichhe stood accused. We are clearly bound by the decision in the earlier appeal, the purposefor which orders etc., could be made. An order for payment of compensation, it wassubmitted, did not amount to the enforcement of the rights that had been contravened. Intheir Lordships’ an order for payment of compensation when a right protected undersection 1 “has been” contravened is clearly a form of “redress” which a person is entitledto claim under section 6 (1) and may well be the only practicable form of redress; as bynow it is in the instant case. The jurisdiction to make such an order is conferred upon theHigh Court by section 6 (2) (a), viz, jurisdiction “to hear and determine any applicationmade 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 todecide would be to subvert the long established rule of public policy that a judge cannotbe make personally or purported exercise of his judicial functions. It was thisconsideration which weighed heavily with Hyatali C.J. and Corbin J. A. in reaching theirconclusion 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 theConstitution is contravened by a judgment or order that is wrong and liable to be set asideon appeal for an error of fact or substantive law, even where the error has resulted in aperson’s serving a sentence of imprisonment. The remedy for errors of these kinds is toappeal to a higher court. Where there is no higher court to appeal to then none can saythat there was error. The fundamental human right is not to a legal system that is41

infallible but no one that is fair. it is only errors in procedure that are capable ofconstituting infringements of the rights protected by section 1 (a); and no moreirregularity I procedure is enough, even though it goes to jurisdiction; the error mustamount to a failure to observe one of the fundamental rules of natural justice. TheirLordships do not believe that this can be anything but a very rare event. In the secondplace, no change is involved in the rule that a judge cannot be made personally liable forwhat he has done when acting or purporting to act in a judicial capacity. The claim forredress under section 6 (1) for what has been done by a judge is a claim against the statefor what has been done in the exercise of the judicial power of the state. This is notvicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is aliability in the public law of the state, not of the judge himself, which has been newlycreated by section 6 (1) and (2) of the Constitution. In the third place, even a failure by ajudge to observe one of the fundamental rules of natural justice does not bring the casewithin section 6 unless it has resulted, is resulting or is likely to result, in a person beingdeprived of life, liberty, security of the person or enjoyment of property. It is only in thecase of imprisonment or corporal punishment already undergone before an appeal can beheard that the consequences of the judgment or order cannot be put right on appeal to anappellate court. It is true that instead of, or even as well as, pursuing the ordinary courseof appealing directly to an appellate court, a party to legal proceedings who alleges that afundamental rule of natural judicial function; see sirros v. Moore [1975] 1 Q.B. 118, inwhich many of the older authorities are cited. But sections 1 and 2 are concerned withrights, 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 thecontempt of court with which he was charged did contravene a constitutional right of theappellant 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 theirterms. While section 3 exclude the application of sections 1 and 2 in relation to any lawthat was in force in Trinidad and Tobago at the commencement of the Constitution it42

does not exclude the application of section 6, in relation to such law. The right to “applyto the High Court for redress” conferred by section 6 (1) is expressed to be “withoutprejudice to any other action with respect to the same matter which is lawfullyavailable.” The clear intention to create a new remedy whether there was already someother existing remedy or not. Speaking of the corresponding provision of the Constitutionof Guyana, which is in substantially identical terms, the Judicial Committee said inJaundoo 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 theConstitution was made. It was an expression which was first used in the Constitution of1961 and was not descriptive of any procedure which then existed under rules of Courtfor enforcing any legal right. It was a newly created right of access to the High Court toinvoke 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 beingcontravened in relation to him. He was thus entitled under section 6 (1) to apply to theHigh Court for redress, without prejudice to his right also to put his remedy of appealingto the Judicial Committee against the judge order.What then was the nature of the “redress” to which the appellant was entitled? Not beinga term of legal art it must be understood as bearing its ordinary meaning, which in theshow Oxford English Dictionary, 3 rd ed. 1944 is given as: Reparation of, satisfaction orcompensation for, a wrong sustained or the loss resulting form this.” At the time of theoriginal notice of motion the appellant was still in prison. His right not to be deprived ofhis liberty exceed by due process of law was still being contravened; but by the time thecase reached the Court of Appeal he had long ago served his seven days and had beenreleased. The contravention was in the past; the other practicable form of redress wasmonetary 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 ofredress was ordered in Jaundoo v. Attorney-General of Guyana. Reliance was placed43

upon the reference in the subsection to “enforcing or securing the enforcement of, any ofthe provision of the said for sections” as the requirements of the new Constitution asrespects 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 forcontraventions of them committed by anyone acting on behalf of the state or some publicauthority, there was already at the time of the Constitution an existing remedy, where bystature, by prerogative writ or by an action for tort at common law. But for others, ofwhich “© the right of the individual to respect for his private and family life” may betaken as examples, all that can be said of them is that at the time of the Constitution therewas no enacted law restricting the exercise by the individual of the described right orfreedom. The right or freedom existed de facto. Had it been abrogated or abridged defacto by an executive act of the state there might not necessarily have been a legalremedy 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 bya departmental instruction. Nevertheless, de facto rights and freedoms not protectedagainst abrogation or infringement by any legal remedy before the constitution came intoeffect are, since that date, given protection which is enforceable de jure under section6(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 theexercise of the judicial powers of the state; the arrest and detention of the appellantpursuant to the judge’s order was effected by the executive arm of the state. So if hisdetention amounted to contravention of his right under section 1 (a), it was acontravention by the state against which he was entitle to protection. Whether id didamount to contravention depends upon whether the judge’s order was lawful under thelaw in force before the constitution came into effect. At that time the only law governingcontempt of court in Trinidad and Tobago was the common law; and at common law ithad long been settled that44

“………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 ofanswering 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 inthe previous appeal; and in their Lordships’ view it clearly amounted to a contraventionby the state of the appellant’s rights under section 1 (a) not to be deprived of his libertyexcept by due process of law.It is true that under the law in force at the coming into effect to the constitution the onlyremedy available to the appellant against an order for committal that was unlawful on thisor any other ground, would have been an appeal to the Judicial Committee of the PrivyCouncil, by special leave, to have the order set aside. No action in tort would have lainagainst the police or prison officers who had arrested or detained him since they wouldhave acted in execution of judicial process that was valid on its face; nor would anyaction have lain against the judge himself for anything he had done unlawfully whilepurporting to discharge it could plausibly be argued contravened one or other of therights or freedoms recognized and declared by section 1. section 3 eliminates thepossibility or any arguments on these line. As was said by the Judicial Committee in deFreitas V. Benny [1976] A.C 239, 244;“Section 3 debars the individual from asserting that anything done to him that isauthorized by a law in force immediately before August 31, 1962, abrogates, abridges orinfringes any of the rights of freedoms recognized and declared in section ofparticularized in section 2”But section 3 does not legitimize for the purposes of section 1 conducts which infringesany of the rights or freedoms there described and was not lawful under the pre-existinglaw. There was no pre-existing law which authorized that of which complaints is made inthis case: section 3 (1) therefore does not over-ride the constitutional rights of theappellant under section 1. True, he had no remedy, other that appeal for infringement of45

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 withquestion (3), is not expressed to be subject to section 3. it is general in its terms. So itapplies 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 inTrinidad and Tobago on August 31, 1962. if it would not have been lawful under thatpreviously existing law, section 6 creates a new right on the part of the victim of theinterference to claim a remedy for it described as “redress”. This remedy of “redress” coexistswith any other remedy to which the victim Amy have been entitle under thepreviously 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 theindividual in the exercise and enjoyment of those rights and freedoms granted? In thisdissenting judgment Phillips J. A. said:“The combined effect of these section [1,2 and 3] in my judgment, gibes rise to thenecessary implication that the primary objective of Chapter 1 of the Constitution is toprohibit the contravention by the state of any of the fundamental rights or freedomsdeclared and recognized by section 1”Read in the light of the recognition that each of the highly diversified rights and freedomsof the individual described in section 1 already existed, it is in their Lordships’ view clearthat the protection afforded was against contravention of those rights or freedoms by thestate or the chapter is concerned with public law, not private law. One man’s freedom isanother man’s restriction; and as regards infringement by one private individual of rightsof another private individual, section 1 implicitly acknowledges that the existing law oftorts provided a sufficient accommodation between their conflicting rights and freedomsto satisfy Lordship’ view the court of Appeal were right to reject this argument. Theredress claimed by the appellant under section 6 was redress from the Crown (now theState) for a contravention of the appellant’s constitutional rights by the judicial arm of the46

state. By section 19 (2) of the Crown Liability and Proceedings Act 1966, it is providedthat proceedings against the Crown (now the State) should be instituted against theAttorney-General, and this is not confined to proceedings for tort.Question (2) The structure and the presumptions that underlie chapter 1 of theconstitution of Trinidad and Tobago and the corresponding chapters in otherconstitutions on the Westminster model that provide for the recognition and protection offundamental human rights and freedoms, have been referred to in a number of previouscases that have come before the Judicial Committee: notably in Director of PublicProsecutions v. Nasralla [1967] 2 A.C. 238; Baker v. The Queen [1975] A.C. 774; andde 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 whichit covers are already secured to the people of Jamaica by existing law. The laws in forceare not to be subjected to scrutiny in order to see whether or not they conform to theprecise terms of the protective provisions. The object of these provisions is to ensure thatno future enactment shall in any matter which the chapter covers derogate from therights 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 andTobago 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 theonly words in the section that are capable of being enacting words), “shall continue toexist” are those which are expressly recognized by the section to “have existed” inTrinidad and Tobago. So to understand the legal nature of the various rights andfreedoms that are described in the succeeding paragraphs (a) to (k) in broad terms and inlanguage more familiar to politics that to legal draftsmanship, it is necessary to examinethe extent to which, in his exercise and enjoyment of rights and freedoms capable offalling within the broad descriptions in the section, the individual was entitle to protectionor non-interference under the law as it existed immediately before the Constitution came47

into effect. That is the extent of the protection or freedom from interference by the lawthat 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 ofsection 3. In view of the breadth of language used in section 1 to describe thefundamental rights and freedoms, detailed examination of all the laws in force in Trinidadand Tobago at the time the Constitution came into effect (including the common law sofar as it had not been superseded by written law) might have revealed provision whichsections or section the person presiding in that court may, and shall if any part to theproceedings so requests, refer the question to the High Court unless in his option theraising of the question is merely frivolous or vexatious. (4) Any person aggrieved by anydetermination of the High Court of Appeal. (5) Nothing in this section shall limit thepower of Parliament to confer on the High Court or the court of Appeal such powers asParliament may think fit in relation to the exercise by the High Court or the Court ofAppeal, as the case may be, of its jurisdiction in respect of the matters arising under thisChapter.:Question (1) Their Lordships can deal briefly with the question of jurisdiction. The noticeof motion and the affidavit in support of the application for the conservatory order forthe immediate release of the appellant pending the final hearing of his claim, made itclear that he was, interalia, invoking the original jurisdiction of the High Court undersection 6(2) (a), to hear and determine an application on his behalf for redress for analleged contravention of his right under section 1 (a). It is true that in the notice of motionand the affidavit which, it may be remembered, were prepared with the utmost haste, therare other claims and allegations some of which would be appropriate to a civil actionagainst the Crown for tort and others to an appeal on the merits against the committalorder 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 in48

tot for anything done by Maharaj J. while discharging or purporting to discharge anyresponsibilities of a judicial nature vested in him; nor for anything done by the police orprison officers who arrested and detained the appellant while discharging responsibilitieswhich they had in connection with the execution of judicial process. Section 4 (6) of theState (formerly “Crown”) Liability and Proceedings Act 1966 so provides. At that timetoo there was no right of appeal on the merits against an order of a High Court judgecommitting a person to imprisonment for contempt of court, except to the JudicialCommittee by special leave which it alone had power to grant. Nevertheless, on the faceof it the claim for redress for an alleged contravention of his constitutional right undersection 1 (a) of the Constitution fell within the original jurisdiction of the High Courtunder section 6 (2). This claim does not involve any appeal either on fact or onsubstantive law from the decision of Maharaj J. that the appellant on April 17, 1975, wasguilty of conduct that amounted to a contempt of court. What it does involve is an inquiryinto whether the procedure adopted by that judge before committing the appellant wasentitle 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, theConstitution places the responsibility for undertaking the inquiry fairly and squarely onthe High Court.It was argued for the Attorney-General that even if the High Court had jurisdiction, he isnot a proper respondent to the motion. In their themselves to the question raised it wouldseem convenient to set out the most important of those provisions of the Constitutionupon which in their Lordships’ view the answers turn.49

CHAPTER 1“THE RECOGNITION AND PROTECTIN OF HUMAN RIGHTS ANDFUNDAMENTAL FREEDOMS“1. It is hereby recognized and declared that in Trinidad and Tobago there have existedand shall continue to exist without discrimination by reason of race, origin, colour,religion or sex, the following human right and fundamental freedoms, namely (a) theright 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 shallabrogate, abridge or infringe or authorize the abrogation, abridgment or infringement ofany of the rights and freedoms hereinbefore recognized and declared and in particular noAct of Parliament shall – (a) authorize or effect the arbitrary detention, imprisonment orexile or any person; …. (e) deprive a person of the right to a fair hearing in accordancewith the principles of fundamental justice for the determination of his rights andobligations;“3. (1) Section 1 and 2 of this Constitution shall not apply in relation to any law that is inforce 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 thatany 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 anyother action with respect to the same matter which is lawfully available, that person mayapply 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 isreferred to it in pursuance of subsection (3) thereof, and may make such orders, issuesuch writs and give such directions as it may consider appropriate for the purpose ofenforcing or securing the enforcement of, any of the provisions of the said foregoingsection or section to the protection of which the person concern is entitle. (3) if anyproceedings in any court other than the high court or the court of appeal any questionarises as to the contravention of any of provisions of the said foregoing forthwithreleased, after suffering imprisonment for part of the day. It not without interest to notthat Braithwaite j. on June 26, 1975, gave reasons in writing for his decision. In this heexpressed the view that upon the evidence before him, the appellant had made out aprima facie case that his right under section 1 (a) of the constitution not to be deprived ofhis liberty without due process of law had been contravened .the substantive motion , however, did not come before Braithwaite j. but before scott jafter 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 ofimprisonment. His ultimate ground for dismissing it was that the high court had nojurisdiction 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 overanother 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 act1962 is vested in all the judges of the high court. Despite his disclaimer of jurisdiction toentertain the motion Scott J. Did express his own view that the appellant not only hadbeen guilty of contempt of court but also had been told with sufficient particularity thenature of the contempt of which he was accused .From the dismissal of his originating motion the appellant to the court of Appeal; butthat appeal was not heard until April 1977. In the meantime he had sought and obtainedfrom 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 beenheard and determined in his favour by the judicial committee upon the ground whichwhere stated later in their judgment of October 11, 1976. so by the time appeal from thejudgment of Scott j. on the originating motion come to be decided by the court of appeal51

the invalidity of the order of committal had been established as resjudicata and the onlyquestions then to be determined by the court of appeal were:(1) whether the high courthad jurisdiction under section 6 of the constitution (now section 14 of the republicanconstitution ) to grant the appellant redress for an alleged contravention of thisconstitutional rights resulting from something done by a judge when acting in thisjudicial capacity; (2) whether the failure of Maharaj j. to inform the appellant of thespecific nature of the contempt of court with which he was charge before committing himto prison for it. Contravened a constitutional right of the appellant in respect of which hewas entitled to protection under section 1(a) of the constitution (now selection 4 (a) of therepublican constitution ); and, if so, (3)whether the appellant was entitled by the way ofredress to monetary compensation for the period that he had spend in prison . all threemembers 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 oncemore to the judicial committee. in addressing days ’imprisonment for contempt of courton April 17, 1975, upon the order Maharaj j., are narrated in the reasons for judgmentdelivered by the judicial committee on October 11, 1976, in the previous appeal to whichthey have given rise, Maharaj v. attorney-general for Trinidad and Tobago [1977] 1 all e.r411. that was an appeal against the committal order. It was allowed and the order ofMaharaj 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 theparticulars of the specific nature of the contempt with which he was being charge. Thismust 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 demandedthat the judge should have done so in this particular case . the lordship are satisfied thathis failure to explain that the contempt with which he intend to charge the appellant waswhat the judge has described in his written reasons as ‘a vicious attack on the integrity ofthe court ‘vitiates the committal for contempt. “52

this was a finding that the judge, however inadvertently, had failed to observe afundamental rule of natural justice,; that a person accused of an offence should be toldwhat he is said to have done plainly enough to give him an opportunity to put forward anexplanation or excuse that he may wish to advance. The questions in the instance appealis 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 compensationunder section 6.In 1979 there was no right of appeal from an order of a judge of the high court finding aperson guilty of contempt of court and ordering him to be punished for it. An appeal didlie to the judicial committee of the privy council but only by special leave of thecommittee itself. So the appellant sought an immediate means of collateral attack on theorder of Maharaj j. on the very day of his committal he applied ex part by notice ofmotion 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 theconstitution and for a conservatory order for his immediate release on his ownrecognizance’s pending the final determination of his claim. The nature of the redress thathe claimed was (a) a declaration that the order committing him to prison for contemptwas unconstitutional, illegal, void and off no effects ; (b) an order that he be releasedfrom custody forthwith; and (c) an order that damages be awarded him against theattorney-General “ for wrongful detention and false in prisonment;” “ together with aclaim for all such other orders etc. as might be appropriate. Both the attorney- generaland 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 theattorney –general was served and from the out set the motion has been proceeded withagainst 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 1and 2are subject to section 3 but section 6 is not. In considering redress under section 6 itis only necessary to look at section 1or 2 in order to discover what the fundamental rightsand 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 was53

unlawful under existing law and therefore the appellant is entitled to redress under theconstitution. The fact that under existing law he had no remedy is irrelevant because hehas 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 libertywhich has already been regain the only redress is damages: the Appellant is not seekingpunitive damages but compensation for the loss of his liberty only. This claim should notbe confused with a personal claim against the judge for damages. In assessing damagesthere is no difficult about special damages. General damages in case such as the presentare analogous to those for the tort of wrongful imprisonment and should be assessed on asimilar basis and reflect the injury to the complainant’s self-respect that wrongfuldeprivation 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 byWestminster 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 ofprocess. Section 6 has provided that the High Court is the proper forum to seekenforcement of the subject’s constitutional rights and he could apple there even forinfringement of them by the Court of Appeal.Public policy does not require that the state should be immune in respect of acts of thejudicature. The respondent’s arguments on public policy equate this type of action withan action against the judge personal were as entered different consideration arise wherethe state is defendant. It is against the tenor of the policy of the constitution that theyshould be differentiation between one arm of the state and another. Once want to dueprocess and infringements of liberty are established section 6 of the constitution gives theCourt jurisdiction to order “redress”. Section 6 (2) does not cut down section 6 (1): theintention was to make the available relief as wide as possible. “Enforcement” in section6 (2) is not used as a term of art, remedies are emulative. There would be a lacuna in theavailable remedies if damages were not included in “redress” Where enforcement is theprescribed remedy in something done, the only way to “enforce” is to make an orderwhich recognizes the existence of the right.54

February 27. The judgment of the majority of their Lordships was delivered by LORDDIPLOCK.The unfortunate misunderstands that resulted in the appellant, a member of the Bar ofTrinidad and Tobago, being committed to seven the Privy Council it would be even moreludicrous 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 wasthe state. To depend on section 13 of the Judicature Act 1962 (No. 12 of 1962) ismisleading because there the Attorney –General is not a party but simply has the right tobe informed of the constitutional issue and in his absolute discretion to join theproceedings as amicus curiae and not as a party.Davies followings. “Redress” in section 6 (1) of the Constitution is to be interpretednarrowly 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 ofdeclaration Injuction (where appropriate because an Injuction cannot issue against thestate) and prerogative order. There is no power to award damages. Save for powers andduties of the courts other than the High Court or Court or Court of Appeal conferred bysection 6 (3), section 6 gives no new remedy to the individual complaining of breach ofconstitutional rights. The individual does not lose anything by this interpretation: he canuse the ordinary procedures to enforce his rights and these can be just ads expeditious asprocedures to enforce his rights and these can be just as expeditious as proceedingsunder section 6. Jaundoo v. Attorney-General of Guyana [1971] A.C. 972 supports therespondent’s submissions. The appellant’s case argued before the Board differs from thatpresented below. There the complaint was of the act of a judicial officer and here it is ofthe act of an unspecified officer of the executive in detaining the appellant under an orderof a judicial officer which the executive officer could not disobey. The appellant asserts aright (breach of which is not a tort) which he did not have before the Constitution cameinto force. The Constitution creates no new rights as opposed to remedies: see de Freitasv. Benny [1976] A.C. 239. Even if the open words of the section 1 of the Constitution55

creates new rights and freedoms which are not part of the common law that does notdetract from the argument on section 6 and any new rights are enforceable by the normalprocess section 3 of the constitution provides that sections 1 and 2 shall not apply inrelation to any law in force at the commencement of the constitution. By section 1 of 5existing law includes the common law. Common law deals with public policy. Judicialimmunity from the consequences of an act done in a judicial capacity is an aspect ofpublic policy. The same immunity extends to officers acting in an obedient to a judge’sorder. To hold otherwise would lead to dissatisfied litigants sidestepping appellateprocedure by a collateral action complaining that their fundamental rights and freedomhad been infringed by an executive officer acting on the order of a judge. Apandora’sbox would be opened: act consequent on an order of the High Court or of the judicialcommittee could be challenged in the High Court.Before the State Liability and Proceedings Acts 1966 in general no action by against astate for wrongs committed by its servants. That Act permitted proceedings in tort but inthe instant case no tort is alleged, no action lies for the act complained of and, exhypothesis, the Attorney-General cannot be named as a defendant.Turner-Samuels Q.C. in reply. Section 3 of the constitution must be appropriate toparticular circumstances. Although research has not revealed a case where a personwrongful sent to prison has obtained damages save for tort of false imprisonmentjaundoo v. attorney-general of Guyana shows that monetary compensation is appropriatewhere there is no other remedy.The attorney-general is the appropriate party against whom a plaintiff may bringproceedings for redress under section 6 of the constitution if a plaintiff has remedyagainst 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 thatthe human right and fundamental freedoms declared by section 1 and specificallyprotected by section 2 of the constitution were primarily justifiable against the state. Theprinciple is that fundamental rights being guaranteed no organ of the state may act incontravention 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 toliberty and the right not to be deprived thereof save by due process of law existed beforethe commencement of the constitution but its enrichment as constitutional rights gave it anew status not only by reasons of the formalities required for its abrogation ofabridgement but also as a result of the creation by section 6 of the constitution of a newright of redress in respect of contravention which is primarily intended to be invoked incases of contravention by the state as opposed to that by private individuals. Section 6 ofthe constitution owes is origin to Article 5 (5) of the European convention on humanrights; see also Attorney-General v. Antigua Times [1976] A.C 16. note that the rightredress 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 lieagainst 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) andGerald Davies for the respondent. Scott J. was right that he has no jurisdiction toentertain the appellant’s motion. Section 6 (1) of the Constitution does not enable aperson in pursuit of the rights and freedoms declare by section 1 and 2 of the Constitutionto apply for redress to a judge of the High Court form any ruling or decision of the HighCourt. To read section 6 in a such a wide way in contrary to the established system ofjustice and to the progressive steps available to the citizen and pursuit of his legal rightsand 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 avoidabsurdity. Confusion or unreasonableness and should have due respect for theconsequences such construction must not offend the common sense, object or intention ofthe statute. To construe section 6 narrowly would not deprive the subject of his right topursue his constitutional right: he has a statutory right of appeal to the Court of Appeal. Ifa motion under section 6 were founded on an alleged contravention of section 1 or 2 ofthe Constitution by the Court of Appeal Judicial Committee ofRooks 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. (E057

The following additional cases were cited in argument:Allman V. Thornhill (unreported), December 22, 1976, Court of Appeal of Trinidad andTobago.Attorney-General v. Antigua Times Ltd [1976] A.C. 16; [1975] 3 W.L.R. 232; [1975] 3All E.R. 81, P.CThompson 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 Courtunder section 6 of the Constitution seeking redress for the contravention of hisconstitutional 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 LordshipsDavid 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 Constitutiondealing with fundamental rights and freedoms impose a fetter on the exercise by thejudiciary of their powers; see Hinds v. The Queen [1977] A.C 195, 213. nothing in theexisting law permitted the procedure adopted in the instant case and there was acontravention of the due process provisions of section 1 and 2 of the constitution. Theframers of the Constitution intended that by virtue of section 6 there should be redress forany contravention by anyone of the fundamental rights and freedoms contained in section1 and 2. section 6 should be construed to give effect to the intention. A declarationand/or damages would be appropriated redress under section 6: subsection (2) is animportant 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. Aconstitutional remedy should not be permitted to fail for want of an appropriaterespondent, 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 nottold there is a fundamental failure of due process: a bare charged of contempt is notspecific 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 US199.“Redress” in section 6 of the Constitution is not a tem of art: for its ordinary meaning, seeThe Shorter Oxford English Dictionary, 3 rd ed. (1944). The appellant adopts thereasoning in Jaundoo v. Attorney-General of Guyana [1971] A.C 972, 982, 983. Theword is used in its widest possible sense and entitles and requires the court to give relief2. JURISDICTION AND OUSTER CLAUSES2.1 Anisminic Case2.2 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 19972.4 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 of1977, HC at DSM2.7 Mwanza Restaurant V Mwanza Municipal Director, Misc. Civ cause No.3 of 1987,HC at Mwanza59

2.8 OTTU v Attorney General & Anor. Civil case No. 53 of 1994, HC at Dar-es-Salaam2.9 R v panel of Take –over and Mergers, ex p Datafin [1987] Q.B.815CONSTITUIONAL AND ADMINSTRATION ASPECTS OF THEANISMANIC CASEThe decision of the House of Lords in Anisminic Ltd v. Foreign CompensationCommission provides a dramatic climax to five years of litigation over a matter which anAct of parliament expressly forbids to be questioned in any court of law. After prolongedquestioning before Browne J., in the Court of appeal and restored the decision of thelearned judge of first instance; who held that a determination of the Foreigncompensation commission was a nullity.This achievement demanded investigation of fundamental problems of jurisdiction and ofthe inherent powers of the courts over statutory authorities. It also demanded that theHouse of Lords previous decision on the subject should be treated, in effect, as given perincuriam. And it demanded the imparting of even more elasticity that usual to thedoctrine of ultra wires. It is bound to rank as a major contribution to the series of caseswhich have invigorated administrative law in the last few years.The Foreign Compensation Commission is a statutory tribunal constituted by the foreigncompensation Act 1950 for the purpose of adjudicating claims on funds paid by foreigngovernments to the Government of United Kingdom in compensation for theexpropriation or destruction of British property abroad.Anismic Ltd. Claimed some euro4m. for the loss of a manganese mine in the Sinaipeninsula in consequence of the Suez hostilities in 1956. under a treaty of 1959 theUnited Arab Republic paid over euro 27.5m. to the United Kingdom as compensation forthis and other specified properties, but claims had to be made good to the Foreigncompensation commission. In a provisional determination the commission rejectedAnismic Ltd’s claim on the ground that they had sold their undertaking to an agency ofthe U.A.R Government before the date of the treaty and did not therefore comply with aprovision of an order in council requiring that claimants and their successors in titleshould be British nationals at that date but as the majority of the House of Lordsultimately held, this determination was erroneous.The Commission were misled by what Lord Wilbert fore called “unfortunate telescopicdrafting” The requirement about the nationality of successor in title did not apply wherethe original owner was the claimant. Moreover, the majority held, the commission’smistake meant that it went into matters which it had no jurisdiction to consider. Thus thecase could be brought within the principle that statutes which forbid recourse to thecourts will not protect action which is ultra vires. This least principle was affirmedunanimously and had also been affirmed in the lower courts, But in the last previous case60

to come before the House of Lord’s the House and the lower courts alike had overlookedthe principle’s existence, its nature and its justification are the first subject which requiresdiscussion.Ouster clauses: versus LegislatureThe starting point in abnormally clear: there is no doubt, for once, about the intention ofthe legislature. “The determination by the Commission of any application made to themunder 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 theforeign compensation. Commission from the operation of section 11, which gibes partialeffect to the recommendation of the Franks Commons that the commissions wasconcerned mainly with making distributions and that since it needed to know “how muchof the cake was left for distribution to claimants,. Would be very difficult for the moneyover to be distributed in reasonable time if the whole exercise could be held up bysubstantial claims being taken the High Court clearly therefore the object was to preventall litigation over the commissions awards.This has been repeatedly confirmed by ministerial spoken in the debates on the foreigncompensation bill 1969 under the order in council Anismanic Ltd claim was in factregistrable as of and right and not excreta, but that had no bearing on the intentionof the legislationFor three centuries, however, the courts have been refusing to enforce statutes whichattempt to give public authorities uncontrollable power. If a ministry or tribunal can bemade a law unto place in a constitution founded on the rule of law. It is curious thatParliament shows no consciousness of this principle. But the judges, acutely conscious ofit, 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 noexecutive body or tribunal should be allowed to be the final judge of the extent to its ownpowers. But while entrenching this principle for sound constitutional reasons, the judgeshave naturally disclaimed any intention of rebelling against the legislature. They have61

prudently concealed the constitutional aspect in a haze of technicality about jurisdictionand nullity.The argument laying most readily to hand is that an enactment determinationunquestionable (referred to for short as an ouster clause) does not apply to an order ordetermination outside jurisdiction, since that is not an “order” or “determination” withinthe meaning of the Act. Lord Reid said, for example, that an ouster clause undoubtedlyprotects every determination which is not a nullity, but that it is not necessary or evenreasonable to construe the word “determination” as including everything which purportsto be determination but which is in fact no determination at all. Similarly, Lord Peacesaid that the more reasonable and logical construction was that by “determination”Parliament meant a real determination, not a purported determination. This amounts tosaying that “determination” means “valid determination” Once evident difficulty in thisreasoning is that a valid determination needs no protection anyway, at least if it has noerror on its face. Another is that until the court has pronounced, no one can know whethera disputed determination is valid or not; and this is the very question which parliamentevidently intends to prevent being litigated. But the wisdom of the judicial casuistry liesin its avoidance of these issues, so that the courts can appeal to obey rather to dfy thesovereign 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 ofparliament and that it would be misdescription to speak in terms of a struggle between thecourts and the executive. He then posed the central question: what would be the purposein 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 nowbeen quoted with approval by Lords Morris, Pearce and Wilberforce:“Subjection in this respect to the High Court is a necessary and inseparableincident to all tribunals of limited jurisdiction; for the existence of the limit necessitatesan authority to determine and enforce it: it is a contradiction in terms to create a tribunalwith limited jurisdiction and unlimited power to determine such limit at its own will andpleasure such as tribunal would be autocratic, not limited…….”62

The key word here is “inseparable” The objection to ouster clause is that they arerepugnant to a coherent legal system. The courts rightly regard it as their task to keep thesystem coherent. But it can hardly be denied that they do this by looking g at what theintention of Parliament caught to be rather that at what it is.Moreover, the English courts have taken the uncompromising stand of holding ousterclause to be inoperative in every kind of case where the error can be said to go tojurisdiction, artificial as some of these are. In Australia, on the other hand, an attempt hasbeen made to resolve Farwell L.J’s “contradiction in term” so as to allow the intention ofthe legislature to operate within reasonable limits. Many of the Australia cases areconcerned 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 theproblem as one of reconciling the obvious intention of these clause with the equallyobvious intention that the powers of the Arbitration Court (for example) shall be legallylimited. Its solution is to decline to intervene “where the tribunal has made a bona fideattempt to exercise its authority in a matter relating to the subject with which thelegislation deals and capable reasonably of being referred to the power possessed by thetribunal.” Thus the court refused relief where an appeal board went beyond the questionsunder appeal, which it had no power to do, thus the court refused relief where an appealboard went beyond the questions under appeal, which it had no power to do, and where atribunal was said to have exceeded its jurisdiction by misconstruing “lock-out” Butprohibition was granted, despite express ouster of this and other remedies, where a boardsat without the statutory quorum which was required for it to function validly. Clearlythe 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 leastit shows that some sort of balance can be stuck between legislative intention andconstitution logic.A balance has also been stuck by the English courts themselves in a number ofcomparable situations. Once example is the familiar problem of deciding whether astatutory condition is mandatory or remedy directory. I held merely directory, it may bedisregarded with impunity. In the latter case the court finds no difficulty in holding that63

an expressly enacted condition is legally meaningless. Another example is offered by theLicensing Act 1964, which after laying down detailed rules under which licensingjustices are disqualified by this section shall be invalid by reason only of thatdisqualification.” This is pro tango an ouster clause, but he courts have been able to adopta compromise solution under which the statutory protection is confined to technicaldisqualifications and does not apply where there is a serious infringement of the principleof 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 withlimited effect. Where, on the other hand, a sweeping ouster clause bars aces to the courtson all questions, the dangers of uncontrollable power are far more obvious. The instinctof 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 neverpreviously been discussed at any length in a reported case, although it has three hundredyears of history behind it. Perhaps a discreet silence was thought best. At any rate, thecases merely repeat tersely that questions of jurisdiction are not effected by ousterclauses. An early decision of 1970 is in fact one of the most explanatory. A stature of1571 provides that commissioners of sewers should not be compellable to make anyreturn 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 inWrapping outside their jurisdiction, paid no attention to writs of certiorari form theKing’s Bench. They soon found themselves molested but in body and in goods, for theywere imprisoned and fined for there contempt. Kelynge C.J. said:“this court cannot be ousted to its jurisdiction without special words; her is thelast appeal, the King himself sits here, and that in person if he pleases, and hispredecessors have so done; and the Kind ought to have an account of what is done belowin inferior jurisdictions. This for the avoiding of oppressions, and other mischief. Todeny and oppose this, and to set up uncontrollable jurisdictions below, tends manifestlyto commonwealth; and we ought, and we shall take caser that there be no such thing inought, and we shall take care that there be no such thing in our days”64

Assuming that “commonwealth” was in 1970 a disparaging term signifying dictatorshipor lawlessness, one can see exactly the same sense as in Farwell L.J.’s remarks 240 yearslater and as in the House of Lord’s opinions today.Parliament took the hints about “clauses soon became common. But the courts firmlydisregarded them in issuing certiorari to quash for excess of jurisdiction. What may bethe 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. Butthe order in this case is out of the jurisdiction of the justices and, therefore, may beremoved by a certiorari.” This rule was firmly established in a long line of laterdecisions. A modern example concerned the Country Courts Act 1959, which ordainedthat, except as provided by the Act, “no judgment or order of any judge of countrycourts….shall be removed by appeal motion, certiorari or otherwise into any other courtwhatever….” But the divisional Court quashed a country court judge’s order oncertiorari, 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 limitedmeaning can still be given to ouster clause by allowing them to bar applications forcertiorari 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 “pairedorgans” regulations, is a form of judicial control which can be taken away without anyinfringement of principle as is obvious from the fact that it fell into abeyance for acentury 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 decideunanimously whether the error in the anisminic case was within jurisdiction or not.The other justification is the acquiescence of Parliament. Although ouster clauses were inconstant use, Parliament never attempted to prevent the courts form depriving them of65

most of their intended meaning. Repeated enactment of no certiorari clauses in commonfrom 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 anamendment in the Foreign Compensation Bill 1969, which happened to be beforeParliament, providing for empowering the commission to interpret its orders in counciland making such interpretation unquestionable in courts of law. Whether or not thiswould have been more effective that the original ouster clause, it would have brought theconstitutional conflict into the open. But it was criticized both in and out of Parliament asinconsistent with the legal system and the rule of law. Lord Dilhorne successfully movedand 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 longand detailed clause. Basically this provides for appeal to the Court of Appeal, but not tothe House of Lords, on any question of the Commission’s jurisdiction or of theirinterpretation of the Orders in Council. But it is not to effect any rights of any person tobring proceedings questioning any determination of the commission on the ground that itis contrary to natural justice, with theses exception no determination of the commission isto be called in question in any court of law.This is probably the fist occasion on which the implications of ouster clauses have causedpublic controversy. It is therefore very satisfactory for all upholders of the truths statedby Farwell L.J. that, after reconsideration, the door to the courts of law has been left moreopen that shut. It is impossible here to discuss technical aspects of the amendment, whichwas made while this article was in the press, but at least the first statutory mention ofnatural justice is noteworthy.Unqualified ouster clauses are now, it may be hoped, unlikely to be used again. Section11 of the Tribunals and inquires Act 1958 restored the control of the High Court bycertiorari and mandamus (though, strangely, not by declaratory judgment) in all caseswhere earlier statutes had excluded challenged in the courts, with four exceptions: (1) theBritish 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 to66

the High Court within a limited time. Exceptions (1) and (2) are therefore the onlyremaining 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 iteffects the very numerous statutes failing within exception (4).Ouster clauses and time limits.No standardized statutory formula is commoner that that which provides thatsome ministerial or other order shall not be questioned in any legal proceedingswhatsoever, 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 beenhigh in parliamentary favor. The planning, housing and compulsory purchase legislationis riddled with them, and so is much other legislation. They are exempted, as alreadynoted, from section 11 of the Tribunals and Inquiries Act 1958. the typical provision isthat a compulsory purchase order may be challenged in the High Court within six weeksof notice of its confirmation on the grounds that “it is not empowered to be granted underthis Act “or that “any requirement of this Act…. Has not been complied with” but thatotherwise 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 endof this type of second world war; and at that time administrative law was in the period ofdefeatism and amnesia form which it has only recently been recovering. So it is hardlysurprising that the decisions were as unmindful of general principles and of pastachievements as were the post-war decisions on natural justice in the years before Ridgev. Baldwin reached the House of Lords. In none of them was any mention over made ofthe centuries –old policy of grating certiorari in spite of express no certiorari clauses, orof the fundamental importance of enforcing jurisdictional limits. In the Court of AppealJenkins L.J said curtly (no authority having been cited) that it was misconceived to arguethat 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 theobjection”. Thus he rejected the precise principle which the House of Lords has nowreactivated. The House of Lords itself in the East Elloe case held that all that the courtcould 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, andthough a minority of their lordships were prepared to hold that there was an impliedexception for fraud. It cannot be often that the House of Lords decides an appeal withoutany mention of the main principle of law which ought to be in issue. Had referred onlybeen made to the decisions holding that a no certiorari clause will not bar certiorari incase 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 thevery reason that the relevant case-law was never cited. But at the same time they havestressed the similarity of all variety of ouster clauses, including those which operate onlyafter a prescribed period of time. Thus the way now lies open for challenging all sorts ofplanning, 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 ofproblems, for what is to happen if a compulsory purchase order is shown to be a nullityafter a housing estate or a motorway have been built on the land with the expenditure ofmuch public money? In cases of this kind there are genuine reasons for setting a timelimit to legal disputes. On the other hand it is generally thought that the six weeks periodis unreasonable short.Another problem is that the legislature has taken to using these six weeks ouster clausesmore or less indiscriminately. It cannot possibly be necessary to set so severe a timelimit to questioning all the miscellaneous varieties of planning orders which are soprotected by Part XI of the town and country planning Act 1962. another example is themedicines Act 1968, which forbids questioning after three months of the validity ofdecisions of the licensing authority for medicinal products or of the Minister’scertificate that pharmacist’ premises are unsuitable for registration. A six weeks it melimit was first proposed in the Bill. The Council on Tribunals succeeded in obtaining itsextension to three months, but they still proliferate alarmingly, and it is surely necessaryto review the whole situation and to confine them to the special cases where they may bejustifiable. This should be one aspect of the general reform of remedies in administrativelaw which is now needed.68

Ouster clauses which take effect only after a prescribed time are in some waysmore akin to statute of limitation that to clauses like that in the foreign compensationAct 1950 which attempt to prevent litigation altogether. The public authorities protectionAct 1898, which until its repeal in 1954 set a time limit of six months, later extended to ayear, on actions against persons acting in execution or intended execution of any Act ofParliament, was not looked upon as “ousting the jurisdiction of the courts” though thatwas precisely what it did on the expiry of the prescribed time. Nor does any one doubt thevalidity of the present six month’s time limit on applications for certiorari” the House ofLords appear to assume that the verbal similarity between the Anisminic and East Elloetype of ouster clause mean that they must be construed similarly. But where access to thecourts is restricted only in terms of time, the court might reasonable treat the provisionmerely as a stature of limitation. On this basis the conflicting decisions of the House ofLords could to some extent be reconciled. Tub it would still be necessary to restrict theexcessive use of unduly short time limits, which are a bad feature of present-daylegislation. It is true that some foreign countries work with very short period: proceedingsin the administrative courts have to be begun within two months in France and onemonth in West Germany. But the Public Authorities protection Act was repealed becausethe period of a year was too short by British standards.Jurisdictional errorThe essence of the Anisminic decision was that the ouster clause would notprevent the determination of the Foreign Compensation commission being set aside bythe courts if it was outside the commission’s jurisdiction; but that it could not bequestioned on the ground of mere error within the jurisdiction; on this the House of Lordswere unanimous. But only by a majority of three to two days they decide that thecommission had in fact exceeded its jurisdiction.Stretching the concept of jurisdictional error has been the principal technique by whichthe courts have extended their control over statutory authorities and tribunals, as forexample by holding that action which is wrongly motivated or unreasonable orinconsistent with natural justice is ultra vires and void. The new case is a notable instance69

of this technique. The error of the commission, as the majority held, was that itmisconstrued the Order in Council by requiring that the claimant should satisfy theprovisions requiring successors in title to be of British nationality when, on a trueconstruction, those provisions were irrelevant in a case whether the claimants was theoriginal owner. Thus the commission made an inquiry which the order did not empowerthem to make based their decision on a matter which they had no right to take intoaccount had no jurisdiction to put further hurdles” in the claimants’ way and wereseeking to impose another recondition, not warranted by the order. By these and similarlyphrases the commission’s mistake is represented as something more that a mere error ofinterpretation, and as carrying it beyond its jurisdiction. It is to be classed with suchjurisdictional errors as addressing oneself to the wrong question and taking irrelevantconsiderations 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 jurisdictionalerror where the tribunal has jurisdiction to embark on its inquiry in the firs place. Thisfallacy has may times been refuted, and it is satisfactory that Lord Reid now refutes itagain by explaining the remarks which he made in the Armah case. It is quite clear that astatutory tribunal may step outside its jurisdiction is conferred. Whether there is excess ojurisdiction, or merely error within jurisdiction, can be determined only by construingthe empowering statute, which will often give little guidance. It is really a question of hoemuch latitude the court is prepared to allow. And when, as in the Anisminic case, a claimworth euro 4m. appears to have been wrongly rejected, the court will naturally bedisposed to intervene. In the end it can only be a value judgment, and there is noclinching 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 thatthe commission were obliged to interpret the order in council because it lay in the directpath of their inquiry, and that “they were inevitably within their jurisdiction because theywere doing what they had to do. “A tribunal must always decide on the limits of its own70

jurisdiction if they are disputed before it, but this necessity in no way precludes thesupervisory 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 thecommission with virtually no margin of legal error, it comes perilous close to saying thatthere is juristic if the decision is right but none if it is wrong. Almost anymisconstruction of a stature or order can be represented as “imposing an unwarrantedcondition or addressing themselves the wrong question; that they had no jurisdiction toexclude what was qualifying serve within the meaning of the regulations, and that theyrejected a consideration which they were told to have in mind, thus direction themselvesinto an unauthorized inquiry. Since they was no ouster clause the court was able to quashfor 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 verydifferently for the sake of preventing a serious injustice.The jurisdictional barrier, therefore, is likely to prove frail when circumstances put itunder pressure. It may well be asked whether there is any merit in maintain it in itspresent artificial poison, or indeed at all. The courts are no more willing to see injusticedone by misapplication of the law than by technical excess of power. If their control overthe latter is to be statute-proof, then why not their control over the former? Thedistinction which is now wearing so thin may be distorted not only by decisions on ousterclauses but also by anomalies in the law of remedies. The ruling doctrine at present isthat mere error on the face of the record, as opposed to error going to jurisdiction. Isremediable by certiorari but not by declaratory judgment. In cases where the short timelimit for certiorari has expired, the court may be tempted to find jurisdictional error sothat a remedy may still be granted.The house of Lords had made it perfectly clear that nullity is the consequence of all kindsof jurisdictional error, e.g. breach of natural justice, bad faith, failure to deal with therights question, and taking wrong matters into account. Although this merely confirmslong-established law, it should help to resolve the tangle caused by paradoxicalsuggestions that action in excess of jurisdiction may be voidable as opposed to void. As71

Lord Reid observed, there are no degrees of nullity. Any as has been submitted in thisReview, “viodable” is a meaningless term in this context. Lord Wilberforce said: “Thereare dangers in the use of this word [nullity] if it draws with it the difficulty distinctionbetween what is void and what is voidable, and I certainly do not wish to be taken torecognize that this distinction exist or to analyze it if it does. “Not the lease welcomefeature of the new decision is that it ought to obviate this confusion and unnecessaryexercise.Human Rights in TanzaniaThe Defendant did not challenge these figures either in cross-examination of theplaintiffs’ witnesses or through its own witnesses. The figure s appears reasonable and Iaccept 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, 1979and totally from January, 1981 until do-date. Excluding the 1980/81 crop which has beencovered 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 was6,095 acres of pasture and 2030 acres of arable land.On the other hand I consider that the plaintiffs during their period of deprivation did nothave to use any inputs in the form of seed, fertilizer, labour fuel etc.Considering that the 1 st Plaintiff had only 200 acres of land under cultivation and that theexact use to which the pasture was put was not established, I ward the 1 st plaintiff shs.250,00/= as general damages. The 2 nd to the 67 th plaintiffs, who owned and used 1830acres of land are awarded shs. 1,300,000/= in general damages – the same to beapportioned between them in proportion to the acreage held byte each before their72

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 Counciland others, that court partially reversed the decisions of the High Court on among otherreasons, that some of the plaintiffs had failed to prove that they were natives andtherefore they could not hold land under customary law.Attorney-GeneralVersusLohay Akonaay and Another.The respondents in this case, Lohay Akonaay and Joseph Lohay are father and son. Theyhad earlier on, in 1987, successfully instituted a suit in the court of Resident Magistrate atArusha for recovery of a piece of land they held under Customary Law. An eviction orderwas issued and they were given possession of the piece of land in question. In 1992 theParliament 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; prohibitedpayment of compensation for such extension; ousted the jurisdiction of ordinary court oflaw in all matters relating to the administration of the Act; terminated proceedingspending in normal courts of law; prohibited enforcement of any court decision of decreeon all matters in respect of which jurisdiction was ousted; and established a tribunal withexclusive jurisdiction.The respondents were aggrieved by this new law and thus petitioned to the High Courtunder Article 30 (3) and Article 26 (2) of the constitution of the United Republic of73

Tanzania, for declaration that the new law was Unconstitutional and consequently nulland void.The High Court of Tanzania at Arusha, presided by Munuo, J. granted the petition andordered the entire new law to be stuck off the statute book. The Attorney-General did notagree 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 werenot in dispute between the parties. These were: during colonial period the respondentsacquired a piece of land under customary law; between 1970 and 1977 there was acountry-wide operation known as Operation Vijiji, though which majority of ruralpopulation 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 theyinstituted the aforementioned suit. In 1987 a subsidiary legislation was made by thegovernment i.e the Extinction of Customary Land Rights Order, 1987 which had theeffect 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) areconstitutional rights recognized under the constitution and ought to be protected asproperty.The Court of Appeal held that: (1) the President holds public land on trust for theindigenous inhabitants of this country; and as a trustee, his power is limited in that he cannot deal with public land in a manner in which he wishes or to the detriment of thebeneficiaries 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 andtheir deprivation without fair compensation is prohibited by the Constitution; (3) theprovisions of the Act which oust the jurisdictional the courts of law and those givingexclusive jurisdiction to the tribunal were unconstitutional for they offend the doctrine of74

separation of powers enshrined in the Constitution; and (4) the trial judge was wrong instriking down the entire statute after finding only four sections to be unconstitutional.JudgmentNyalali, C.J.This case clearly demonstrates how an understanding of our Country’s past is crucial to abetter understanding of our present, and why it is important while understanding ourpast, to avoid living in that past. The respondents, namely, Lohay Akonaay and JosephLohay are further and son, living in the village of Kambi ya samba, Mbulumbumbuluward, Mbulu District, in Arusha Region. In January, 1987 the successfully instituted aresuit in the court of the resident magistrate for Arusha Region for recovery for a piece ofland held under customary law. An eviction order was subsequently issued for eviction ofthe judgment debtors and the respondent were given possession of the piece of land inquestion. There is currently an appeal pending in the high court at Arusha against thejudgment of the trial court, this is Arusha high court civil appeal No. 6 of 1991 while thisappeal was pending, a new law, which came in force on the 28 th December, 1992 wasenacted by the parliament, declaring the extinction of customary right in land, prohibitingthe payment of compensation for such extinction, ousting the jurisdiction of the courts,terminating proceedings pending in the court, and prohibiting the enforcement of anycourt 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 thematters taken out of the jurisdiction of the court. This new law is the regulation of landtenure (established villages) act, 1992 hereinafter called Act No. 22 of 1992.Aggrieved by this new law, the respondents petitioned against the Attorney-General inthe High Court, under Articles 30 (3) and 26 (2) of the constitutional of the UnitedRepublic of Tanzania, for a declaration to the effect that the new law is unconstitutionaland consequently null and void. The High Court, Munuo J. granted the petition andordered 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 andSang’ka, land Advocates, appeared for the respondent.From the proceeding in this court and the court below, it is apparent that there is nodispute between the parties that during the colonial days, the respondent acquired a pieceof land under customary law. Between 1970 and 1977 there was a country wide operationundertaken in the rural area by the Government and the ruling part, to move and settledthe majority of the scatted rural population in to villages on the main land Tanzania. Onesuch village was Kambi ya simba village, where the respondent reside. During thisexcise, commonly referred to as operation vijiji, there was wide spread re-allocation ofland between the villagers concerned. Among those affected by the operation were therespondent, who are moved away from the land they had accrued during the colonial dayto another piece of land within the same village. The respondent were apparently notsatisfied with this re-allocation and it was for the purpose of recovering their originalpiece of land that they instituted the legal action already mentioned. Before the case wasconcluded in 1989, subsidiary legislation was made by the appropriate minister under theland development (specified areas) regulations 1986, read together with the rural lands(planning and utilization) Act, 1973, extinguishing all customary rights in land in 92villages 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 overthe area where the land is situated. The respondents’ village is listed as number 22 in thatschedule. All the 92 villages listed under the order, including the respondents’ village, arein area within Arusha region.The Memorandum of Appeal submitted to us for the appellants contains 9 ground ofappeal, two of which, there is ground number 8 and 9 were abandon in the course ofhearing the appeal, the remaining 7 ground of appeal read as followed:1. That the honorable trial judge erred imperfect and law in holding that eddiedrights of occupancy as defined in section 2 of the land ordinance is “property” forthe purpose of article 24 (1) of the constitution of the united republic of Tanzania1977 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 theregulation of land tenure (establish villages) act 1992, precludes compensation forun exhausted improvements.3. that the honorable trial judge erred in law and fact in holding that any statutoryprovision ousting the jurisdiction of the court is contrary to the constitution of theunited republic of Tanzania.4. That the honorable trial judge erred in law by holding that the whole of theregulation of land tenure (established village) act,1992 is unconstitutional.5. that the honorable judge erred in law and fact in holding that the regulation landtenure (established villages) act ,1992 did acquire the respondents’ land andreallocated the same to other people and in holding the act was discriminatory.6. that having declared the regulation of land tenure(established villages ) act, 1992unconstitutional, 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 andnon-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 ofAppeal rules, 1978 the second, is a notice of grounds for affirming the decision interms of rule 93 of the same. The notice of motion sort to have the court strike out thegrounds of appeal numbers1,5,8 and 9. after hearing both sides, we were satisfied thatthe procedure adopted by the respondents was contrary to rules 45 and 55 whichrequire such an application to be made before a single judge. We therefore orderedthe notice of motion to be strike off the record.As the notice of grounds for affirming the decision of the high court, it read asfollows:1. As the appellant had not pleaded in his reply to the petition facts or points of lawshowing controversy, the court ought to have held that the petition standsunopposed.77

2. since the respondents have a court decrees in their favour, the legislature cannotnullify the said decree as it is against public policy, and against the constitutionof Tanzania.3. as the respondents have improved the land, they are by that reason alone entitledto compensation in the manner stipulated in the constitution and thatcompensation is payable before their rights in land could be extinguished.4. possession and use of land constitute “property” capable of protection under theconstitution of Tanzania. Act, No. 22 of 1992 is therefore unconstitutional to theextent that it seeks to deny compensation for loss of use; it denies right to beheard 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 cannottherefore 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 mannerthe legislature seeks to do without violating the respondents constitutional right tolife.For purposes of clarity, we are going to deal with grounds of one by one, and in theprocess, take into account the ground submitted by the respondents for affirming thedecision wherever they are relevant to our decision.Ground number one raises an issue which has far-reaching consequences to themajority 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 rightof every person in Tanzania to acquire and own property and to have such propertyprotected. Sub-Article (2) of that provision prohibits the foretaste or expropriation ofsuch 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 under78

section 2 of land ordinance, 1922 is not property within the meaning of Article 24 ofthe constitution and is therefore not protected by the constitution. The DeputyAttorney-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 isthat customary rights in land are by their nature not rights of ownership on land, butrights to use or occupy land, the ownership of which is vested in the community orcommunal authority. The deputy Attorney-General also contended to the effect thatthe 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 submittingto the effect that whatever nature of customary rights in land, such rights have everycharacteristic of property as commonly known, and therefore a fall within the scopeof Article 24 of the constitution. He cited a number of authorities in support of thatposition, inlciding the Zimbabwe case of Hewlett v. The minister of finance and thecase of Shah v. Attorney-General (No.2) and the scholarly article by Thomas Alle,lecturer in law, University of Newcastle, publisher din the international ancomparative Law quarterly.Undoubtedly the learned trial judge, appears to have been of the view that customaryor demoded rights of occupancy are property within the scope of Article 24 of theconstitution when she stated in her judgment:I have already noted earlier on that the petitioners legally posses the suit land undercustomary land tenure under section 2 of the land ordinance cap 113. They have notin this application sought any special status, rights or privileges and the court has notconferred 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 possesthe deemed rights of occupy they lawfully acquired pursuant to Article 24 (1) of theconstitution and section 2 of the land ordinance, cap 113.79

Is the trial judge correct? We have considered this momentous issue with the judicialcare it deserves. We realize that if the Deputy Attorney-General is correct then mostof the inhabitants of Tanzania mainland are no better that squatters in their owncountry. It is our duty to agree with the deputy attorney-General, without fear orfavour, 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 historicalbackground o Tanzania. Since the establishment of British rule. This exercise hasbeen most helpful in giving us an understand on the nature frights or interests inlandon the mainland of Tanzania. This historical background shows that the overridinglegal concern o the British authorities, no bodily under the influent of the Mandate ofthe 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 indigenousinhabitants. This Is apparent in the preamble to what was then known as the landtenure ordinance, 1923 which came into force on 26 January, 1923. the preamblereads:Whereas it is expedient that the existing customary rights of the native of theTanganyika territory to use and enjoy the land of the territory and the natural traitsthereof in sufficient posterity should be assured, protected and preserved:AND WHEREAS it is expedient that the rights and obligations of the Government inregard to the whole of the lands within he territory and also the rights and obligationsof cultivators or other persons claiming to have an interest in such land should bedefined by law.BE IT THEREFORE ENACTED by the Governor and commanded-in-Chief of theTanganyika territory as follows:It is well know that after a series of minor amendment over a periods of time, the landordinance assumed its present title and form as the land ordinance, cap 113. Its basicfeatures is that all land is declared to be public land and is vested in the governing80

statutorily on trust for the benefit of the indigenous inhabitant of this country. Thisappears in section 3 and 4 of the ordinance.The underlying principle of assuring, protecting and preserving customary rights inland is also reflected under Article 8 of the Trusteeship Agreement, under which theMainland 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 theAdministering Authority who take into consideration native laws and customs, andshall respect the rights and safeguard the interests, both present and future, of thenative population. No native land or natural resources may be transferred exceptbetween native, eave with the previous consent of the competent public authority. Noreal rights over native land or natural resources in favour of non-natives may becreated except with the same consent.With this background in mind, can it be said that the customary or deemed rights ofoccupancy recognized under the land ordinance are not property qualifying forprotection under Article 24 of the constitution? The deputy Attorney-General hassubmitted to the effect that the customary or deemed rights of occupancy, thou inordinary parlance may be regarded as property, are not constitutional property withinthe scope of Article 24 because they lack the minimum characteristic of property asoutlined by Thomas Allen in his article earlier mentioned where he states.The precise content of the bundle of right varies between legal systems, butnonetheless it is applied thought the commonwealth. At minimum, the bundle hasbeen taken to include the right to exclude others form the thing owned, the right touse or receive income from it, and the right to transfer to others. According to themajority of commonwealth cases, an individual has property once he or she has asufficient quality of these rights in a thing. What is “sufficient” appears to vary from81

case to case, but it is doubtful that a single strand of the bundle would be consideredproperly on its own.According to the deputy Attorney-General, customary or deemed rights of occupancylack tow of the three essential characteristics of property. First, the owner of such aright cannot exclude all others since the land is subject to the superior title of thepresident of the united republic in whom the land is vested. Second, under section 4of the land ordinance, the occupier of such land cannot transfer title without theconsent of the president.With due respect to the Deputy Attorney-General, we do not think that his contentionon both points is correct. As we have already mentioned, the correct interpretation ofSection 4 and related sections above mentioned is that the president holds public landon trust for the indigenous inhabitants of that land. From this legal position, twoimportant things follows.Firstly, as trustee of public land, the president’s power is limited in that he cannotdeal with public land. In the words of section 6 (1) of the Ordinance, the presidentmay deal with public land only “where it appears to him to be in the general interestsof Tanganyika” secondly, as trustee, the president cannot be the beneficiary of publicland. In other words, he is excluded from the beneficial interest.With regards to the requirement of consent for the validity of title to the occupationand use of public lands, we do not think that the requirement applied to thebeneficiaries of public land, since such an interpretation would lead to the absurdityof transforming the inhabitants of this country, who have been in occupation of landunder customary law from time immemorial, into mass squatters in their owncountry. Clearly that could not have the intention of those enacted the land ordinance.It is a well known rule ofinterpretation that a law should not be interpreted to lead to a an absurdity. We findsupport from the provisions of Article 8 of the Trusteeship Agreement whichexpressly exempted disposing of land between the indigenous inhabitants from therequirement of prior consent of the governing authority. In our considered opinion,82

such consent is required only in cases involving disposition of land by indigenousinhabitants 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 arevalidly in occupation of land as beneficiaries of such land under customary law andany disposition of land between them under customary law is valid and requires noprior consent form the president.We are of course aware of the provisions of the land regulations, 1948 andspecifically regulation 3 which requires every disposition of a right of occupancy tobe in writing and to be approved by the president. In our considered opinion the landregulations apply only to a right of occupancy granted under section 6 of the landordinance 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 anative to a non-native. A contrary interpretation would result in the absurdity we havementioned earlier.As to the contention by the Deputy Attorney-General to the effect that the right toproperty under Article 24 of the constitution id derogated from by the provisioncontained therein expression which is to be found in other law. It is a fundamentalprinciple in any democratic society that the constitution is supreme to every other lawor institution. Bearing this in mind, we are satisfied that the relevant proviso meansthat what is stated in the particular part of the constitution is to be exercised inaccordance with relevant law. It hardly needs to be said that such regulatory relevantlaw must not be inconsistent with the constitution.For all these reasons therefore we have been led to the conclusion that customary ordeemed rights in land, though by their nature are nothing but rights to occupy and usethe land, are nevertheless real property protected by the provisions of Article 24 ofthe constitution. It follows therefore that deprivation of a customary or deemed rightof occupancy without fair compensation is prohibited by the constitution. Theprohibition of course extends to a granted right of occupancy. What is fair83

compensation depends on the circumstances of each case. In some cases a re-locationof land may be fair compensation. Fair compensation however is not confined to whatis known in-law as unexhausted improvement. Obviously where there areunexhausted improvements, the constitution as well as the ordinance land lawrequires fair compensation to be paid for its deprivation.We are also of the firm view that where there are no unexhausted improvements, butsome effort has been put into the land by the occupier, that occupier is entitled toprotection under Article 24 (2) and fair compensation is payable for deprivation ofproperty. 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 clearthat I am trying to transform this basic gift from God so that it can satisfy a humanneed. It is true, however, that this land is not mine, but the efforts made by me inclearing that land enable me to lay claim of ownership over the cleared piece ofground. But it is not really the land itself that belongs to me but only the clearedground which will remain mine as long as I continue to work on it. By clearing thatground I have actually added to its value and have enable it to be used to satisfy ahuman need. Whoever then takes this piece of ground must pay me for adding valueto 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 and4 of act No. 22 of 1992 violate the constitution by denying the petitioners the right togo on possessing their deemed rights of occupancy and what is worse, denying thepetitioners 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 erredin holding that the provisions of section 4 of Act No. 22 of 1992 denied the petitioneror any other occupier compensation for unexhausted improvements. The clear84

language of that section precludes compensation purely on the basis of extinction ofcustomary rights in land. The section reads:No compensation shall be payable only on account of loss of any right or interest inor over land which has been extinguished under section 3 of this Act.But as we have already said, the correct constitutional poison prohibits not onlydeprivation of unexhausted improvements without fair compensation, but everydeprivation where there is value added to the land. We shall consider theconstitutionality of section 4 later in this judgment.Ground number 3 attacks the finding of the trial judge to the effect that the provisionsof Act No. 22 of 1992 which oust the jurisdiction of the Courts from dealing withdisputes in matters covered by the act are unconstitutional. The relevant part of thejudgment 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 thecourts of law in land disputes arising under the controversial Act No. 22 of 1992 andexclusively vesting such jurisdiction in land tribunals. Such ousting of the courtsjurisdiction by section 5 and 6 of Act No. 22/92 violates Articles 30 910, (3) (4) and108 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 otherthan the court for adjudication of disputes. Such bodies or institutions include theland 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-Generalon this point, but with due respect, we are satisfied that he is only partly right. Weagree that the Constitution allow the establishment of quasi-judicial bodies, such asthe land tribunal. What we do not agree is that the constitution allows the courts to beousted of jurisdiction by conferring exclusive jurisdiction on such quasi-judicial85

odies. It is basic structure of a democratic constitution that state power is dividedand distributed between three state pillars. These are the executive, vested withexecutive power; the Legislature vested with legislature power, and the Judicaturevested with judicial powers. This is clearly so stated under Article 4 of theconstitution. This basic structure is essential to any democratic constitution andcannot be changed or abridged while retaining the democratic nature of theconstitution. It follow therefore that wherever the constitution establishes or permitsthe establishment of any other institution or body with executive or legislative orjudicial power, such institution or body is meant to function not in lieu of or inderogation of those three central pillars of the state, but only in aid of and subordinateto those pillars. It follows therefore that since our constitution is democratic, anypurported ousters of jurisdiction of the ordinary courts to deal with any justifiabledispute isUnconstitutional. What can properly be done wherever need arises to conferadjudicative jurisdiction on bodies other than the court, is to provide for finality ofadjudication, such as by appeal or review to a superior court, such as the high court orcourt of appeal.Let us skip over number 4 which is the concluding ground of the whole appeal. Weshall deal with it late. For now, we turn to ground number 5. this ground relates tothat part of the judgment of the learned trial judge, where she states:It is reverse discrimination to confiscate the petitioners deemed right of occupancyand reallocate the same to some other needy persons because by doing so thepetitioners are deprived of their right own land upon which they depend for alivelihood 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 bediscriminatory 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 itdeals only with people in the rural areas and not those in the urban areas was correctlyanswered by the deputy attorney-general that the act was enacted to deal with aproblem peculiar to rural areas. We also agree with learned deputy attorney-general,that the act of extinguishing the relevant customary or deemed rights of occupancydid not amount to acquisition of such rights. As it was started in the Zimbabwe caseof Hewlett v. minister of finance cited earlier where an extract of a judgment ofviscount diploma is reproduced stating : their lordship agree that a person may bedeprived of his property by mere negative or restrictive provision but it does notfollow that such a provision which leads to deprivation also needs to compulsoryacquisition or use.It is apparent that, during operation vijiji what happened was that some significantnumber of people were deprived of their pieces of land which they held undercustomary law, and were given in exchange other pieces of land in the villageestablished pursuant to operation vijiji . this exercise was undertaken or inaccordance with any law but purely as a matter of movement policy. It is notapparent why the government chose to act outside the law, when there waslegislation which could have allowed the government to act according to law, as itwas bound to. We have in mind the rural lands (planning and utilization ) act,1973, which empowers the president to declare specified areas to regulate landdevelopment and to make regulations to that effect, including regulationsextinguishing customary rights in land and providing for compensation forunexhausted improvements, as was done in the case of Rufiji district undergovernment notice nos. 25 of 10 th may, 1974 and 216 of 30 th august,1974. theinexplicable failure to act according to law, predictably led some aggrievedvillagers to seek remedies in the court by claiming recovery of the lands they weredisposed during the exercise. Not surprisingly most succeeded. To avoid theunraveling of the entire exercise and the eminent danger to law and order, the landdevelopment (specified areas ) regulations , 1986 and the extinction of customary87

land rights order, 1987 extinguished customary land rights in certain villages inArusha region, including the village of kambi ya simba where the respondentscome from. We shall consider the legal effect of the government notice later inthis judgment.For the moment we must turn to ground number 6 of the appeal. Although thedeputy Attorney-General was very forceful in submitting to the effect that thelearned trial judge erred in striking down from the statute book those provisionsof act no.22 of 1992 which she found to be unconstitutional, he cited no authorityand indicated no appropriate practice in countries with jurisdiction similar onwhat may be described as the authority or force of reason by arguing that thedoctrine of separation of powers dictates that only the legislature has powers tostrike out a statute from the statute book. We would agree with the learneddeputy Attorney-General in so far as valid statutes are concerned. We are unableon the authority of reasons to agree with him in the case of statues found by acompetent court to be null and void. In such a situation, we are satisfied that suchcourt has inherent powers to make a consequential order striking out such invalidstatute from the statute book. We are aware that in the recent few weeks somelegislative measures have been made by the parliament concerning this point.Whatever those measures may be, they do not affect this case which was decidedby the high court a year ago.Ground number 7 is next and it poses no difficult at all. It refers to that part of thehigh court judgment where the learned trial judge states:Furthermore section 3 (4) of Act No. 22 of 1992 forbids any compensationon account of the loss of any right or interest in or over land which has beenextinguished 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 of88

section 4 and would undoubtedly have corrected the error under the slip rule hadher attention been drawn to it.We must now return to ground number 4. the genesis of this ground is that part ofthe judgment of the trial court where it states:For reasons demonstrated above the court finds that sections 3,4,5 and 6 of ActNo. 22/92 the regulation of land tenure (established Villages) Act, 1992 violatesome provisions of the constitution thereby contraveningArticle 64 (5) of the constitution. The unconstitutional. The unconstitutional ActNo. 22 of 1992 is hereby declared null and void and accordingly stuck down…The learned Deputy Attorney-General contends in effect that the learned trialjudge, having found only four sections out of twelve to be unconstitutional oughtto have confined herself only to striking down the four offending sections and notthe entire statute. There is merit in this ground of appeal. There is persuasiveauthority to the effect that where the unconstitutional provisions of a statute maybe severed leaving the remainder of the statute functioning, then the court shoulduphold the remainder of the statute and invalidate only the offending provisions.See the case Attorney-General for Alberta v. Attorney-General for Canada andAnother.In the present case, for the reasons we have given earlier, we are satisfied thatsections 3 and 4 which provide for the extinction of customary rights in land butprohibit the payment of compensation with the implicit exception of unexhaustedimprovements only are violative of Article 24 (1) of the constitution and are nulland void. Section 4 would be valid if it covered compensation for value added toland 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 inthe villages of Arusha Region including Kambi ya Simba, which are listed in theschedule to Government Notice No. 88 of 1987. the customary rights in land in89

those listed villages were declared extinct before the provisions of theconstitution, which embody the Basic Human Rights because enforceable in 1988by virtue of the provisions of section 5 (2) of the constitution of the constitution(Consequential, Transitional and Temporary Provisions) Act, 1984. this meansthat since the provisions of Basic Human Rights are not retrospective, when theAct No. 22 of 1992 was enacted by the Parliament, there were no customaryrights in land in any of the listed villages of Arusha Region. This applies also toother areas, such as Rufiji District where, as we have shown, customary rights inland were extinguished by law in the early 1970s. bearing in mind that Act No. 22of 1992, which can correctly be described as a draconian legislation, wasprompted by a situation in some villages in Arusha Region, it is puzzling that adecision to make a new law was made where no new law was needed. A littleresearch by the Attorney-General’s Chambers would have laid bare the villagesconcerned 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 paniccharacteristic of people used to living in our past rather than in our presencewhich is governed by a constitution embodying a Bill of Rights. Such behaviordoes not augur well for good governance.With regards to section 5 (1) and (2) which prohibits access to the courts ortribunal, terminates proceedings pending in courts or tribunal and prohibitenforcement of decisions of any court or tribunal concerning land disputes fallingwithin Act. 22 of 1992, we are satisfied, like the learned trial judge that the entiresection is unconstitutional and therefore null and void, as it encroaches upon thesphere of the Judicature contrary to Article 4 of the constitution and denies anaggrieved 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 havingjurisdiction over the area in which the dispute arises.90

Clearly this section in unconstitutional only to the extent that it purports toexclude access to the courts. The offending parts may however be severed so thatthe remainder reads, “proceedings may be instituted under this Act in the Tribunalhaving jurisdiction over the area in which the dispute arises.” This would leavethe door open for an aggrieved party to seek a remedy in the courts, although suchcourts would not normally entertain a matter for which a special forum has beenestablished, unless the aggrieved party can satisfy the court that no appropriateremedy is available in the special forum.The remainder of the provisions of Act No. 22 of 1992 including section 7, whichcan 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, canfunction in respect of matters stated under section 7 of the Act. To that extent wehereby reverse the decision of the court below. As neither side is a clear winner inthis case, the appeal is partly allowed and partly dismissed. We make no order asto costs.91

IN THE COURT OF APPEAL OF TANZANIAAT DARE S SALAAMMISC. CIVIL CLAUSE NO. 27 OF 1997BARAZA LA WANAWAKE TANZANIA ………………. APPLICANTSVersusREGISTRAR OF SOCIETIES ………………RESPONDENTSRULLINGSUBJECTS: 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- ROSETEMU MUSHI, -5- MARY CHONJO MAREALLE, and -6- SAINA KHATIN KAULI,hence to be collectively called the petitioners applicants a constitutional petition, againstthe -1- REGISTRA OF SOCIETEIS, -2- HON. ALI AMEIR MOHAMED – Minister forHome Affairs and -3- HON. ATTORNEY GENERAL, hence to be called therespondents, under articles 13(6), 18, 20 (1), 24, 26 (2) and 30 (4), of the ConstitutionUnited 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 andfinalization of the petition the petitioner/applicants Society BAWATA, till the applicationfor temporary Injuction, is heard inter parties, and finally the hearing and finalization ofthe petition. On the 17/7/1997, my learned brother CHIPETA, J issued an exparte interimInjuction order, restraining he respondents from the cancellation of theapplicants/petitioners society – BAWATA, Dutifully, Mr. Werema learned councilrepresenting the respondents, filed an application supported by affidavit, seeking thevation of the exparte interim Injuction order, and dismissal of the current application fortemporary 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 concept92

ional crystallization, of the idea of forming a women’s non-partisan society for theirwomen-folk development, that involved other national women celebrities, BAWATAwas born, and so legally born and registered, under the society ordinance Cap. 337, henceto be called the ordinance, its birth certificate, Certificate of Registration, being dated16/5/1995. No. SO 8408, the second to 6 th petitioners/applicants, being the office bearers,it is defying controversy, that, BAWATA almost immediately after birth, peeped intodoomsday, for it did not stand, the test and taste of time in its activities, as seen form thepedestal of Government, for its activities were suspended by 17/9/1996, and conditionsimposed, that BAWATA’s constitution be amended, and by 5/6/1997, the Registrar ofsocieties, acting under section 12 of the ordinance, required BAWATA to show causewhy 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 ofcancellation, of the registration of BAWATA, on the 30/6/1997, advising thepetitioners/applicants, of their statutory right to appeal to the Minister for home Affairs,within twenty one days, under section 13 of the Ordinance. Although thePetitioner/applicants, put in motion, the process of appeal, and sought extension ofappellate 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 hencethe petition, and this applications culminating therefrom. These are the facts, that defychallenge, 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 movingform the periphery, to the relevant amplifications. Those applications are supported andbased on affidavits, and written submissions, the letter inherently thereby importing adisadvantage of counsel to counsel, counsel to judge oral link, and possibility ofopportune oral clarifications, on pertinent matters. But having on my part, dutifullyexamined, and rationalized, the pro and cons submissions, as pertinently touch the subjectmatter, it is my humble view, that the legal controversy revolve and revolve around:(i)(ii)(iii)(iv)(v)(vi)Joinder parties – whether these were “Civil Proceedings as envisaged undersection 9 of the Government Proceedings Act 1967, and whether it was notwrong to implead the minister for Home Affairs Hon. Ameir Mohamed, when theHon. Attorney General, was the one by such law to sue or, be sued, on behalf ofthe Government.Whether the source of power for the High Court to grant injections inConstitutional Proceedings, is ORDER XXXVII of the Civil Procedure code.Whether an Injuction could be issued against the Government?Whether BAWATA was already dead i.e an illegal society when the applicationsfor exparte Interim and Temporary injunctions were filed.Whether the petitioners/applicants, before resorting to the petition, and or currentapplication, should have first exhausted the statutory appellant remedy providedby section 13 for the ordinance.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 faras joinder of the Minister of Home Affairs as a party is concerned, contend, that93

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 AttorneyGeneral, who is the part and that in the circumstance of the case, the Minister, as aparty be stuck out. It does seem that, this submission, was not hospitably receivedby Prof. Shvji, who maintained, that such joinder issue, was premature, as suchissue trespassed, into the territory of jurisdiction, the lonely preserve of thatlegally constituted constitutional court, that this court is not. He added, that evenif, 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, aself constrained statute, a statute independent of the Government proceedings Act1967.With respect, it must be appreciated, and I hope we do, that substantially, we are dealingwith, an application for a temporary Injuction, and that this question of joinder ofparties, whether under the Civil procedure code 1966, or under the GovernmentProceeding Act 1967, or whether under the Basic Rights and Duties EnforcementAct 2994 pertains, to pleading and drafting of plaint, or petition, as the case maybe, considering as to who can, and should be impleaded as defendant, or who isnecessary party. And a necessary part to me, would and should mean, a partywhose 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 courtin passing the decree, or in completely deciding, the rights and liabilities of theparties. Have been impleaded. Is whether, there is a breach of any pleadingprovisions of law, or rules, which requires any one to be, or not to be joined, inthe array of parties, and whether such provisions are mandatory, or merelydirectory. It is my sincere submission, that, since the question of parties and thejoinder thereof, pertain to the constitution of a plaint, or petition, it is party andparcel of the suit, or petition, as framed, or as should be legally framed, theimpeachments, or amendment of which, is the preserve of the fully constitutioncourt, and not susceptible to interlocutory jurisdiction, and I would advise Mr.Werema accordingly. However, without prejudice to the above position, I wouldstill decidedly add, that even if the joinder of parties, was not stalkingencroaching upon jurisdictional territory, section (5) of the civil procedure code1966, has this to tell us loudly, and perhaps pre-emptily:In the absence of any specific provisions, to the contrary, nothing in thiscode, shall be deemed of procedure, presc4ribed by, or under other law forthe time being in force.Avoiding, both judicial and legal haste, we have to realize, that such is a saving ofprocedure prescribed in, or by other law, that rule obviously cover the provisions ofsection 7(3) of the Basic Rights and Duties Enforcement Act, 1994, for the promotion ofthe impleadment of the Minister. I would however, agree, with Prof. Shivji, that the issueis at this juncture jurisdictionally premature, if also, not pertinent to the application, for atemporary Injuction, or the resistance thereof, but all the same answered, if notinadvertently.94

That, the exparte application for temporary Injuction, and now the current application fortemporary Injuction inter-parties, were bad in law, as they were not based on the civilProcedure Code ORDER XXXVII, Government proceeding Act, the proper applicationof which, would have culminated -1- into notice being served upon the AttorneyGeneral, 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 notimpressed, nor amused by this submission, the Prof. refused to countenance it, maintainthat, 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 HighCourt, in constitutional proceedings, or public law proceedings, its source of remedies,whether final or interim, is the constitutional itself and under Basic Rights and DutiesAct and not the civil procedure code 1966, - ORDER XXXVII.I have, to confess, seriously given commensurate consideration, to this fundamental andimportant question, as we proceed, we are appreciating, that this is a constitutionalpetition, brought under the constitutional provisions, and the basic rights and duties act,already above cited, and this temporary Injuction application relates thereto. Thequestion here inevitably emerging for consideration, and whose answer is anxiouslyawaited, is whether the civil procedure code 1966, in particular the Injuction provisionsORDER 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 theprocedure code, 1966, apply to a suit, and in civil procedure, a suit is instituted by fillinga plaint, which is the first pleading in a civil suit, for the recovery of individual rights, orredress of individual wrong, - see ORDERS 1 and 2 of the civil procedure code, 1966. onthe other hand constitutional proceedings, or petition is not a suit, for settlement ofprivate wrong, but a constitutional litigation, though put in motion by an individual, orindividuals, with a bearing, to give all the citizens, the full measure of justice, soproclaimed on constitutional issues raised, avoiding the austerity of tabulated legalism,enhancing principles of practical Government, and the National aspirations, of a freedemocratic society.The constitutional proceedings belong to the area of public law, and therefore the abovecited ORDER, is not applicable, as it is not meant to cater for constitutional matters, sothat any interim relief, in the interest of Justice desirable in constitutional proceedingswhich are put in motion by filling of petitions and not suits, cannot legally spring fromORDER XXXVII, which does not apply to petitions, which to repeat motorizeconstitution proceedings.Having, with respect, ruled above that the civil procedure code, 1966, is not the source ofpower, 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 stilllingers 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 issue95

interlocutory relief orders. While I am not disagreeing with him in that regard, I have adutiful 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 exerciseits jurisdiction……. In conformity with the substance for common law, the doctrines ofequity, statutes of general application, in force in England, on the twenty second day ofJuly, 1920. the above shows, that the high court form the time of its institution, and dateof reception has such equity powers and has jurisdiction to apply the same as arenecessary, to do right and undo the wrong. In other words, this power of equity courtinclude the power to grant interim relief, and admits of no acceptation with reference topoint of time, to which it an be made, and it is unnecessary to force unjustified fetters onthis power, which is even preserved by section 95 of the civil procedure code 1966 andrightly pleaded by the applicants.Observed persuasively, and loudly on this aspect section 151 of the India civil procedurecode, which is in parametrical with our section 95, was commented on by the Indiansupreme court, in the case of MANHAR LAL CHOPRA vs BAHADUR RAO RAJASETH HIRALAL, 1962 SC 527, 528 as hereunder follows:Section 151 itself says, that nothing in this code, shall be deemed to limit, or otherwiseaffect 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 thecode, control the inherent power by limiting it, or otherwise affecting it. The inherentpower, has not been conferred upon the Court, it is the power inherent in the court byvirtue of its duty to do justice between the parties before it. Further when the code itselfrecognizes the existence of the inherent power of the court, there is no question ofimplying, any powers outside the limits of the codes.Thus there being no such expression in section 94, which expressly prohibits, the issue oftemporary Injuction in circumstances, not covered by ORDER XXXIX o CPC, or byany rules made under the code the courts have inherent jurisdiction to issue temporaryInjuction, 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 interimInjuction.What flows from the generality of the issue and the above, incontestably, is in my viewthe following, and that is namely, -1- even at the risk of tautology, that the provisions ofORDER XXXVII of the procedure code 1966 only apply to private suits and not topetitioners for constitutional proceedings, -2- that the provision of the same ORDERXXXVII are not exhaustive, -3- that the provision of the same ORDER XXXVII are notconstitutive, but recognatory of the power, to grant interim relief, -4- that the high courtas a court of equity, has inherent power to issue interim relief, and taking such powers asrecognized under section 95 of the civil procedure code 1966, and as read together withsection 8(3) of the Basic right and duties enforcement Act, 1994, it has jurisdiction toissue such interim relief, as are appropriate for the purpose of enforcing, or securing theenforcement of human rights, as enshrined in section 12 – 29 of the constitution. With96

espect, after all is said, and written, I am sure that legal minded Thomases, now knowthat even under the constitutional proceedings, this court has jurisdiction to issue interimrelief, appropriate for the enforcement of constitutional human rights provisions for theprotection of which the parties petitioning, are entitled, so that not only my learnedbrother CHIPETA, J had jurisdiction to order the way he did, but to, it is an uncontestablejurisdictional legal reality. My learned brother Chipeta J’s exparte interim order does nottherefore in law attract vacation as prayed.Where assumptions, have taken dominion, they introduce they are blind effect, and hencea 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 issueagainst Government, does raise the question whether the Government, is immune from anInjuction order regardless the source of power I suppose as the issue of source of powerhas 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 shallonly 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, whosehangover, would, notwithstanding, wish to go beyond its prescribed boundaries. But asabove pointed out, such provision apply to private suits, and not to constitutionalproceedings, and will not pursue it further. Second Mr. Warema reminds me, of HenryBrocton a Thirteen country celebrated lawyer, who said that Government, Kings, are notabove the law, but under Gods the law, since the law makes the king, Therefore, let theKing render to the law. What the law has rendered to the king namely, dominion andpower, for there is not king where will prevails, and not the law.In my view the ideal of Government under the law, that inspiredBracton, is still true and even stronger, and hence now axiomatic,that the Supremacy of the law – Rules of Law, is the cornerstone ofdemocracy and nobody should set himself above theinstrumentalities, appointed by the Constitution, for theadministration of law. While it is conceded, that, while performingthe essential functions of maintaining public order, and security ofthe nation, the state is different from other person, whether naturalor artificial, that excepted, the law applies to citizens as well as theState, a construction that in my view is consistent, with thePhilosophy of equality enshrinent in our Constitution. Of course,this is without prejudice, to passing a law expressly, or bynecessary implication, exempting the State, from its operation,provided is does not infringe, or trespass, upon fundamental rightsbut after any legislative process, the Government should not beheard to be bound by the law as a matter of grace, or option, butobey it upon dominion of expediency. And when we Governmentleaders mount the restrum and take oath to guard the Constitutionand the Laws made thereunder it is not a ritual, it is a dutiful and97

serious matter and article 26 of it, says it must be guarded andobeyed. And to say that the Government cannot be served with aninjunction process is anachronistic. Going back to the contention,it is uncontestable in my view, that sections (2) and (7) of the BasicRights and Duties Enforcement Act, 1994, as read together withArticle 30 of the Constitution, the Government is an impleadableparty, in the enforcement of human rights as enshrined in Articles12 to 29 of the said Constitution, and considering, that the duty topay obedience to, and Guard the Constitution lies on us all, itfollows that, when the Government’s potential to interfere with, orto transgress upon or continue threatening the violation of suchhuman rights, it is only fair and logical, that the Court uses itsextra-ordinary jurisdiction, to issue temporary injunction, oninterim relief, for the protection of such human rights, asthreatened, till the finalization of the petition. I is my possible tomaintain human dignity, where the fundamental human rights andfreedom, should be beyond the reach of legislative majorities, andexecutive decisions. In my conclusive considered view it is not acry from a wildness, that it should no longer be consideredsacrilege, or heresay, to say once again, that a Court hasjurisdiction to issue temporary injunction against a Government, ifit consider necessary and appropriate for the interests of justice, inthe enforcement of fundamental human rights which are likely tobe enormously weakened, unless injunctive interim reliefs, againstthe Government, which in its vast and complex machinery, in oneway or another, even inadvertently, encroaches on the rights ofcitizens are issued, also see HOME OFFICES CASE (1993) 3 WLR433 at p.456. Mr. Werema will therefore join issues with me, onthis aspect.For issue No.4 basically Mr. Werema has, a significant importfrom para 6(1) of his affidavit, that the court was and this court isseized of the application, for exparte interim injunction, and Isuppose the current application for temporary injunction whenBAWATA, as society, has seized to exist and that its cancellationbefore the injunction order, was issued, rendered the ordernugatory and the current application equally affected. Of courseProf. Shivji countered this at considerable length and I need torepeat what the tow Counsels said at full length. Accurate date,and or history, are hardly capricious, if not fraudulentlymanipulated, and indeed, the record shows that, BAWATA, wascancelled on the 30/6/1997, and such cancellation communicated98

to BAWATA’s Secretary General who in such communication wasinformed of the society’s right of appeal, within twenty one days,meaning that the appellate period, would expire about 20 th of July,1997. but, it is equally beyond controversy, that, by 2/7/1997, thePrinciple Secretary, Ministry of Home affairs, received the Society’sPrecautionary letter Ref. No. BWT.B57/ADMI.GEN/97/09 of2/7/1997 expressing intention to appeal, and praying for extentionof the appellate period, as BAWATA office bearers and the Society’sAdvocate were on safari. In the mean while an application for anexparte interim injunction was successfully pursued, and hencethe exparte injuction order dated, and issued on 17/7/1997 byCHIPETA, J. The question provoked by Mr. Werema is whether bythe date of such order, the Society has seized to legally exist. Thequestion given deserving attention seems to yield a negativeanswer, and I have the following reasons. First the Societyaggrieve, by the Registrar of Society’s cancellation of itsregistration, under section 13 of the Society’s Ordinance Cap. 337,has a statutory right of appeal, against such cancellation to theMinister of Home Affairs, within twenty one days or such as periodof time, as upon application may have been extended. Second, thequestion is whether during the appellate period the Society is anillegal society? In my view during the appellate period thecancellation falls into abeyance till the decision of the appeal for…… as pointed out by Pro. Shivji, immediately as an unlawfulsociety, it would be provoking the legal wrath of criminal sanctions,under section 12A of the ordinance, as the officers or office bearerwould be acting illegally, the appeal provisions would thereby bedefeated, 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 inrespect of which an appeal has been lawfully made to the Ministerunder section 13, and remains undetermined, it follows in my view,that the date of the Interim injunction order 17/7/1997, when theBAWATA appellate process was already in motion, but stillundetermined, it was not unlawful society, it had as much legalcompetence to appeal, as it was actually doing, and even seekingtemporary injunction. It would beat both schooled logic andcommon sense, to assert that it was then alive to persue, its rightsof appeal to the Minister but dead for the purpose of applying, andobtaining an interim injunction order. The argument by Mr.Werema, therefore fails on this aspect.99

The respondents Council, Mr. Werema, further gallantlyargued, that the petitioners applicants should have challenged theconstitutionality 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 fortemporary injunction is inextricably tied to the grounds, which inthe Petition challenge the constitutionality of some of the provisionsof the Society’s Ordinance, and that even the appellate authorities,demonstrated a scanty regard to the appellate process, which totheir knowledge was already in motion and time was closing in, totheir prejudice. They were look-warm about it, so went thesubmission.I have, dutifully and purposefully, considered this issue,whether the petitioners/applicants should have fully first satisfiedthe appellate alternative, or whether failure to resort to suchalternative appellate remedy, is a bar to the Petitioner/Applicants,to resort to the High Court jurisdiction. Mr. Warema’s submissionre-visited, is obviously luringly attractive as look at, it seemsconsistent 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 provideadequate legal remedy, which remedy is as efficacious,as the remedy, as this Court can give under theConstitution, then the petitioner must exhaust thatremedy, before he comes to this Court, for exercise of itsspecial jurisdiction, under Articles 226 and 227” (Writeand High Court Superintendence Jurisdiction Articles –Indian Constitution).But, the same Supreme Court, of course in a different set ofcircumstances, had the following to observe, in the case of RAMCHANDER SINGH, vs STATE OF PUNJAR, AIR PUNJ (68), A PUNJ178, thus, and I quote:“It has been authoritatively held that, the plea of alternativeremedy is not an absolute bar, to the maintainability of a writpartition, and the said plea has to be decided, on the acts andcircumstances of each case, where it is raised.”100

From the above persuasive cases, I am moved by theircommonsense, legal logic, and I am minded to hold the following.First, the legislature in its legislative wisdom, may provided forstatutory alternative remedy, second failure to exhaust suchalternative remedy, is depending on the circumstances of the case,not a bar to the maintainability of a writ – partition, and third, itwould in my view, seem that, the rule of exhaustion of alternativeremedy is a rule of convenience, and discretion, the latter beingexercised judicially, and fourth, such alternative remedy mustconvenient, expeditions and efficacious.However, having said, written and submitted as above, I wouldhurriedly but fundamentally change course concede exceptions andsubmit, that considering the paramount of fundamental humanrights, 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 ofwhich, 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 ofbetter name, to call it an alternative remedy, to drive a party to a socalled alternative remedy, when the instrumentality, or organ forwhich has prejudged the …….. the authority whose order isimpugrad og /has acted under the general, or speed directions ofthe said authority or there is a real likelihood of bias in thatdirection, or actual administration, or odispesantation of theremedy. Thus may I be allowed to maintain that exhaustion ofalternative remedy is not in anyway of absolute demand, there aresometimes clear cut, situations, where fairness would compel thenon-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 generallyunchallenged, I get a clear and vivid position, that the cancellationof the Society’s registration is inextricably inter with the Ordinance,and the rules made thereunder, the appellate authority, theMinister is the Ministerial boss of the Registrar of Societies, and hispowers are derived from the very Ordinance, whose theConstitution is being challenged; constitutionality post –commencement of and I am satisfied that it makes sense to kill twobirds with one stone, but more importantly this could have pre-101

emptied possible negative legal consequences, attendant to theeventuality of the Minister dismissing the appeal. Adding to thisinteresting intricate relationship, is the fact that BAWATA’s letter,to the Principal Secretary, was expeditiously deltwith, as to implylikelihood of bias, for, while the Principle Secretary’s office, receivedBAWATA’s appellate letter on 2/7/1997, by 17/7/1997, it had notbeen acted upon, and yet the clock had ticked its days off, almostto a finish my judgment, on the possible motive, I am entitled to beloud and clear, that, the so called alternative remedy was thrownwith thorns and almost impassable, and the applicants can not befaulted 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 subsidiarylegislation there under, equally repugnant or inconsistent, with theConstitution, it is my submission, that the option taken by theapplicants, was flawless.I shall now come to the Temporary injunction question. Withrespect, as regards to the injunction, I think Mr. Werema, had puthis eggs in one basket, in his application, thereby perhaps, tryingto hit two, or more birds with, one stone. He argued that, since thedate of the interim exparte injunction order 17/7/1997, the Societyhad ceased in exist them if accepted, the exparte interim injunctionorder, be vacated and the current application for temporaryinjunction dismissed. It would seem, that for reasons given above,the exparte interim injunction order, was in order and cannot bevacated, for it was neither obtained by fraud, nor was the societyunlawful, during the statutory appellate period as it was capable oflegally persuing its rights. It follows that Mr. Werema, did nototherwise, and without prejudice, even reversely oppose theapplication for temporary injunction, the application for temporaryinjunction 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 governingthe grant of a temporary injunction, had not been satisfied, i.e.among others, the establishment, of a Prima facie case, of breach ofduty, sitting the case R.V. KENSIMGTON & CHELSEA ROYALL.B.C. EXP. HAMMEL AND R. v. WASTMISTER CITY COUNCILEXP. AUGUSTIN (1993) I.W.L. R.760.I must confess fully, tint I had not the advantage of reading theabove case because of its in availability, but, I am of the unshaken102

opinion, that where the Court used its original inherentjurisdiction, i.e. power of equity, that is outside the ambit ofORDER XXXVII of the Civil Procedure Code, 1996, the preconditionsfor exercising such jurisdiction under the said order, donot strictly apply. It is my submission, however that where a partyseeks a temporary injunction from the Right Court, in itsapplication of its original and inherent satisfy three conditionsnamely -1- the applicant must all the same, have made out, astrong prima facie case, and -2- the balance of convenience mustbe in favour of granting, an order thereunder, and -3- whether it isconsistent 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 theexistence of Constitutional legal problems raised, in the litigation,and that the balance of convenience is in their favour, or that, theinconvenience, or disadvantage likely to be suffered, for exceed thatof their opponents, in the event of refusal, to grant exceed, that oftheir opponents, in the event of refusal, to grant the prayer. Andmay I add that the Court should in its institutional wisdom, bealert, not to be used, as an instrument, or tool, to cause injury, orloss 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 thiscase.This application is a by-product, of a Constitutional petition underarticle 13(6), 15, 18, 20(1), 24, 26(2) and 30(4) of the Constitutionof the United Republic and section 4 and (5 of the Basic Rights andDuties Enforcement Act, 1994 questioning the constitutionality ofthe Society Ordinance Cap.337, and the powers exercisablethereunder. This came in the wake of the applicants Society beingcancelled from the Register of the Registrar of Societies. It is withtrepidation and fear, lest I encroach upon a prohibited territory ofjurisdiction, that I observe, that, there is generally, a presumptionin favour of constitutionality, of statute, and a law will not bedeclared unconditional unless the case, is so clear, as to be freeirom doubt. BAWATA, as a society was cancelled and the membersare alleging, a violation of their constitutional rights and thereforeaggrieved. It is constitutionally speaking, that a person whoasserts and give facts that because of the allegedunconstitutionality, his or her interests have been adverselyaffected, or stand in real, or imminent danger of, being affected, by103

the operation of the statute must not be hindered. As a philosophyof 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 fellowbeings, at many levels, and is it not a phenomenon of humanbeings to form groups, none of which however, not even the state,exhausts his social needs. In other words, the development of mangenerally requires a plurality of autonomous communities, havingtheir own rights, their own freedoms, and their own authorities asguaranteed by the Constitution. Having on my part read thepapers and the submissions, I am decidedly of the view, that whensuch rights are allegedly transgressed, I think that a Prima faciecase has been established beyond a shadow of doubt, that there isperhaps a constitutional question to be determined. On thebalance of convenience, it is clear to the tall and short, that refusalto grant temporary injunction would be disastrous to BAWATA, andmembers thereof, for refusal to grant the relief would mean deathsentence, with serious consequences, under section 12A of theordinance, thereby throwing the partition in total jeopardy, withoutcompetent authority to pursue it in this form, and from the citizensperspective, this would not only be a loss of opportunity for thecrucible test of the operations of their constitution, but also a lossof opportunity of their training in their Constitution in unobstructedliberty. If our democracy though young, is yeteducated, if our Parliament though young is less alert and yet tolearn, if our Executive is to know more about Constitutionprinciples, upon which they take oath then on the balance ofconvenience, all are not only eager to learn, but also, to test outyoung Constitution and advance the constitutional principlesinvolved, and the Court having played its dutiful role, its duty endsthere. From the above, I am satisfied that the applicants /petitioners, have made out a case for a temporary injunction, and itis hereby ordered, that BAWATA in the interests of justice, shallremain uncancelled, nor be otherwise interfered with, till theConstitution partition, is heard and finally decided.Delivered this 4 th day of March, 1998.E.W. Katiti104

JudgeCourt: Now case to be referred to the Hon. J.K for re-assignment tothe Judges to hear the petition according to law.E.W. KatitiJudge4.3.98IN THE COURT OF PEAL OF TANZANIAAT DAR ES SALAAM(CORAM: KISANGA, J.A. KUBUVA, J.A AND SAMATTA, J.A)CRIMINAL APPEAL NO. 21 OF 1997BETWEENTHE DIRECTOR OF PUBLIC PHOSECUTIONS ………….APPELLANT105

ANDANJELINA OJARE ……………………………. RESPONDENT(Appeal from the judgment of the High Court of Tanzania atArusha)KISANGA, J.A.:(Nchalla, J.)Dated the 24 th day of March, 1997InCriminal Appeal No. 31 of 1996JUDGEMENT OF THE COURTThe appeal arises from the judgment of the High Court(Nchallo, J.) which upheld and affirmed the ruling of the residentmagistrate’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 bailunder section 148 (1) of the Criminal Procedure Act. Theapplication was made at a time when proceedings of a preliminaryenquiry into a charge of murder against the respondent werepending in that court. The application was resisted by theprosecution on the ground that under section 140 (5) (a) of theCriminal Procedure Act the offence of murder is not vailable, andthat in any case the Resident Magistrate’s Court has no jurisdictionto grant bail in respect of murder which was not trouble by thatCourt. The magistrate overruled the objection and granted bail.The Director of public Prosecutions appealed unsuccessfully to theHigh Court which as …… / stated, affirmed the decision of theresident magistrate’s a court, hence the present appeal to theCourt.Before us the appellant Director of Public Prosecutions wasrepresented by Mr. K.M. Mussa, learned Principal State Attorney,while the responded was advocated for by Mr. A. Mgwal, learnedadvocate. Counsel pointed out that a nolle prosequi in respect of106

the charge had already been entered on behalf of the Director ofPublic Prosecutions, and that this appeal was now intended only toset the record right.The memorandum of appeal contained the following grounds:-1. That the leaned Judge erred in assuming jurisdictionover a matter falling within the provisions of articles 12to 29 of the constitution without complying with theprovisions of the Basic Rights Duties Enforcement Act.2. That the Learned judge erred in law in granting bailcontrary to section 148 (5) (a) of the Criminal ProcedureAct.3. That the learned Judge erred in holding that section148 (5) (a) of the Criminal Procedure Act violates articles13 (6) (b) and 15 (2) (c) of the Constitution and that thesame cannot be applied and enforced by the courts.4. IN THE ALTERNATIVE to ground 2 hereinabove thelearned Judge non-directed himself on the position ofthe law as it existed before the enactment of section 148(5) (a) before upholding and affirming the decision of thesubordinate court.“9 – (1) where in nay proceedings in subordinate courtany question arises as to the contravention of any of theprovisions of a section 12 to 29 of the Constitution, thepresiding magistrate shall, unless the parties to theproceedings agree to the contrary or the Magistrate is ofthe opinion that the raising of the question is merelyfrivolous or vexatious, refer the question to the HighCourt for decision; save that if the question arisesbefore a Primary Court the magistrate shall refer thequestion to the court of a resident magistrate whichshall determine whether or not there exists a matter forreference to the High Court”The learned judge, however, rejected the submission, proceeded toconsider the constitutionality of section 148 (a) and eventuallyupheld the decision of the trial magistrate which had granted bail107

holding, in process, section 148 (5) (a) to be inconsistent with theConstitution.In rejecting the submission the learned judge referred tosections 4, 5 and 10 of the Basic Rights and Duties EnforcementAct.Section 4 provides:-“4. If any person alleges that any of the provisions of sections 12 to29 of the Constitution has been, is being or is likely to becontravened in relation to him, he may, without prejudice to anyother action with respect to the same matter that is lawfullyavailable, apply to the High Court for redress”.Section 5 provides in effect that on aggrieved person who goes tothe High Court for redress pursuant to section 4, shall do so byfilling a petition to the court. Then section 10 (1) provides that:-“10 (1) For the purposes of hearing and determining anypetition made under this Act including references madeto it under section s, the High Court shall be composedof three Judges of the High Court save that thedetermination whether an applications in frivolous,vexatious or otherwise fit for hearing may be made by asingle Judge of the High Court”.The learned judge, therefore took the view that although the matterbefore him was not an application by way of a petition undersection 5, he was nevertheless, entitled to deal with it pursuant tothe option under section 4 whereby the aggrieved party could takeany other action, like the appeal in the instant case. And since hewas dealing with the matter as an appeal, he was again entitled tosit as a single Judge, and so the requirement of three Judgessection 10 (1) did not arise.With due respect we cannot agree with the construction putby the judge on section 4 of the Act. We do not think that theexpression “……….. any other section …….” In the instant case, forexample, the aggrieved person was Mrs. Ojare on whose behalf itwas alleged that section 146 (5) (a) of the Criminal Procedure Act108

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 theoption whether to go to the High Court or to take any other actionlawfully available to her for redress. When the matter went to theHigh Court, however, this was not at the instance of Mrs. Ojare. Itwa a t the instance of the Director of Public Prosecutions who wasalleging, not that section 148 (5) (a) was violative Mrs. Ojare’s basicright but, that the district court had no competence to consider anddecide on the constitutionality of that section. In other words theallegation or complaint by Mrs. Ojare and that by the Director ofPublic Prosecutions differed completely from each other. In thecircumstances, therefore, it is plain that Mrs. Ojare has neitherapplied to the High Court for redress under section 4 of the BasicRights and Duties Enforcement Act, which would involved filling apetition to that court under section 5 of the same Act, nor has sheexercised any other option which was lawfully available to her. Inother words the appeal to the High Court cannot be regarded asany other action which was lawfully available to Mrs. Ojare as thelearned judge thought. Because the appeal was not at the instanceof Mrs. Ojare and it was not alleging any infringement of her basicright. Ever assuming that Mrs. Ojare had lost in the district courtand then appealed to the High Court, this could not haveamounted to her exercising another action or option lawfullyavailable to her in terms of section 4. Because at that stage Mrs.Ojare, having thus lost the action in the district court, would haveonly one option lawfully open to her, anyway, and that is to appealto the High Court. No other option would be lawfully open to herand therefore the provision would be meaningless.We think that the expression “any other action …… lawfullyavailable ……” as used in section 4 applies to situations where analleged wrong, though capable of being redressed as a violation of abasic right under the Constitution, the victim of it, nevertheless,opts to seek redress under the ordinary law. Take, for instance, thewrong of unlawful confinement. A person who complains of it may,in terms of section 4 apply to the High Court for redress or institutecriminal or civil proceedings under the ordinary law.Thus we are satisfied that there was non-compliance with theprovisions of sectin4 of the Basic Rights and Duties Enforcement109

Act. The complainant on whose behalf it was alleged that section148 (5) (a) of the Criminal Procedure Act was violative of her basicright as guaranteed under Articles 13 (6) (b) and 15 (1) of theConstitution neither applied to the High Court, nr exercised anyother option which was lawfully available to her for redress. Thelearned judge therefore erred in failing to hold that there was suchnon-compliance.The view we take of the matter is that when the issue ofconstitutionality of section 148 (5) (a) was raised in the districtcourt, the trial magistrate should have proceeded in accordancewith the procedure laid down under section 9 (1) of the BasicRights and Duties Enforcement Act reproduced earlier in thisjudgment. Under that procedure the magistrate had a duty to referthat 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 thatquestion before him was merely frivolous or vexatious.Neither (a) nor (b) was applicable in this case, and so the trialmagistrate had no option but to refer the question to the HighCourt for decision . this he did not do; he considered the questionshimself and decided on it. Obviously, in terms of section 2 (1) ofthe Act he had no competence or jurisdiction to do so. To thatextent, therefore the proceedings were null and void, and thelearned judge should have held so.Mr. Mgwal submitted that section 9 (1) of the Basic Rightsand Enforcement Act was not applicable because it wasinconsistent with section 4 of the same Act quoted above. Hecontended that the use of the word “may” in that section meantthat an aggrieved person has the option whether to go to the HighCourt or to a subordinate court for redress and that his client hadopted to go to the district court. We noted, by the way, that thisline of argument is different from that adopted by the learned judgewho maintained that the complainant had referred the matter tothe High Court through an appeal. The true position however, isthat Mrs. Ojare did not go to the resident magistrate court to seekredress of a violation of her basic right. She simply applied for bail110

in that court, and in the course of arguing the application by theparties or their representative, the issue of constitutionality ofsection 148 (5) (a) of the Criminal Procedure Act arose. Then thepoint is that once the resident magistrate court had takencognizance that a constitutional question has thus arisen, it had aduty 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 noapplication here, Mr. Mgwai contended that in any case thatprovision sought to derogate from Article 30m(3) of theConstitution. The unofficial English version of that provision saysthat:-“3 (3) Any person alleging that any provision in this Partof this Chapter or in any law concerning his right orduty owned to him has been, is being or is likely to beviolated by any person any where in the UnitedRepublic, may institute proceedings for redress in theHigh Court.”Counsel reiterated the contention that the word “may” as used inthe provision meant that the aggrieved person had the option ordiscretion whether to go to the High Court or to the district courtfor redress, and consistent therewith his client opted to go to thedistrict court. Therefore, in his view, section 9 (1) of the Act cannotnow be invoked to defeat or derogate from Article 30 (3) of theConstitution, the supreme law of the land.The answer to this is that sub-article (3) of Article 30 of theConstitution must not be read in isolation. It has to be readtogether with sub-article 4 (a) of the same Article, again theunofficial English version of which reads:-“30 (4) subject to the other provisions of thisConstitution, the High Court shall have originaljurisdiction to hear and determine any matter broughtbefore it pursuant to this Article; and the state authoritymany enact legislation for the purpose of –111

(a) regulating procedure for institutingproceedings pursuant to this Articles;”pursuant to this sub-Article, Parliament enacted the Basic Rightsand Duties Enforcement Act, so as that sub-Articles (3) and 4 (a) ofthe Constitution have now to be read together with this Act. Whenthat is done, the import is that a person who complains of aviolation of his basic right has the option whether to seek redressin the High Court by filling petition in that court, or to take anyother action lawfully available to him such as instituting a civil suitunder the ordinary law to recover damages, say, for unlawfulconfinement. But where in the course of nay proceedings in thesubordinate court the issue of violation of basic right of a partyarises, then the trial magistrate must refer such question to theHigh Court for determination. However if he parties agree that thequestion should not be referred to the High court, then themagistrate may proceed under the ordinary law to dispose of thesuit or proceedings before him. Again if, on that question beingraised in the district court, the magistrate is of the opinion that theraising of it is merely frivolous or vexatious, then he can overrule itand proceed to conclude the proceedings under the ordinary law.His decision on whether the raising of the question was frivolous orvexatious is ………….of …………of High Court.It follows, therefore, that the trial magistrate had nocompetence or jurisdiction to hear and decide on theconstitutionality : section 148 (5) (a) of the criminal Procedure Actwhich was raised before him. That was a matter to be referred tothe High Court for decision, which was not done. To the extent ofsuch omission or error, the proceedings in the district court werenull and void.That then settles the first ground of appeal. Since the othergrounds of appeal arise from matters which ware purportedlydecided on by the district court and affirmed by the High Court, itfollows that the decision of the High Court was had in law in asmuch as it was based on a nullity. It purported to be based on amatter which was no decision at all or which did not exist in law. Itis, therefore, not necessary to consider the other grounds of appeal.112

In the result the appeal by the Director of Public Prosecutionis allowed. The judgment of the High Court is quashed, and theruling /order of the district court is declared null and void.Ordinarily we would have sent the matter back to the district courtfor continuation of the hearing of the matter according to law fromthe stage immediately following the raising of the constitutionalissue before that court. However, such course of action is nowovertaken by the event in the light of the role prosequi which wasentered in this case.D. …………………….. this 1 st day of July, 1996R.H. KISANGAJUSTICE OF APPEALD.Z. LUBUVAJUSTICE OF APPEALI certify that this is a true copy of the original.(N.M. MWAIKUGILE)SENIOR DEPUTY REGISTRAR…………………………………….113

CA/86/35IN THE COURT OF APPEAL OF TANZANIAAT DARE S SALAAMCORAM:MUSTAFA, J.A; MAKAME J.A And KISANGA. J.ACIVIL APPEAL NO. 1 OF 1986HAMISI ALLY RUHONDO & 115 OTHERS. APPELLANTSVERSUSTANZANIA –ZAMBIA RAILWAY AUTHORITY … RESPONDENT(Appeal form the Order and Decision of the High Court of Tanzania at Dar es Salaam)(Lubuva, J) Dated the 26 th day of October, 1985InMisc. Civil cause No. 7 of 1985JUDGMENTS OF THE COURTMAKAME, J.A.;The appellant in this appeal, HAMISI ALLY RUHONDO AND 115 OTHERS, wereemployed by the respondent, TANZANIA RAILWAY AUTHORITY, popularly knownas Tazara. Their services were terminated by the respondent, allegedly because ofredundancy caused by the respondent’s declining business as a result of a number ofalleged factors the details of which it is not immediately necessary to go into. Theappellants were dissatisfied so they went to the permanent Labour tribunal, via thecommissioner for Labour, in a terms of section 94 (1) for the permanent Labour tribunalAct, 1967, as amended by Act No. 18 of 1977. The Tribunal dully inquired into thematter and accordingly made a report to the said minister made a decision, reversing thestep taken by the respondent of terminating the appellant’s services. The Minister orderedthe reinstatement of the appellant, without any loss of benefits, and directed that thepurported redundancy payments be treated as interest free debts thirteen days later thedecision 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 theMinister’s order into the High Court and have it quashed and set aside. The applicationwas heard by Lubuva, J. on 2 nd October, 1985 and on 26 th October, 1985 the learnedjudge delivered his ruling, which was in favor of the applicants, Tazara. He was satisfied114

that the proceedings before the Tribunal were ultra vires so he quashed the Minister’sorder based on them and set it aside.The appellants are now appealing to this court, and Prof. Shivji of the university of Dar esSalaam 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 thisappeal.Before going into the substance of the appeal we wish to remark that we wereinconvenience by the record furnished to us as which was of the typed record a wholepage of the original record is left out, which makes it appear that only Prof. Shvji, and notMr. Tarimo, said anything at all before Maina, J. on 2 nd March, 1985. Then at page 62nearly ten pages of the original record are omitted. Page 74 shows that leave was grantedto appeal to the court of Appeal against Lubuva, J.’s ruling while the ruling itself startsform page 75. we wish to urge Prof. Shivji, the learned advocate for the appellants toexercise greater care when certifying records and we would respectfully draw hisattention 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 toappreciate the really momentous ones it is necessary to support of its prayer for an orderof certiorari, as well the findings on which the learned judge based himself in granting theprayer. The present respondent’s main grounds were as follows:(1) There was no Trade Dispute in existence when the Permanent Labour Tribunaland 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 oris apprehended, the Labour Commissioner may inquire into the cause andcircumstances of the trade dispute to the Tribunal and the Tribunal shall inquire intothe 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 theproceedings were conducted without the authority and or knowledge or Juwata. Insuch inquiry proceedings the employees must be represented by Juwata which is anecessary party to any such proceedings.(iii) There must be, and here there was not, a report from the Juwata SecretaryGeneral on which the Labour Commissioner could have initiated the inquiry.(iv) the Minister’s order and decision breached the rules of natural justice in thatTazara were not given an opportunity to be heard before the minister made the saiddecisions and order against them.115

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 therehad been no prior consultation with Juwata Field Braches before the decision ofdeclaring the workers redundant. The present appellants protested against theterminations and approached the Labour commissioner who in torn enquired with theJuwata Secretary General, which set in motion the other steps which followed. Theappellants further contended that the respondents had in any event unduly delayed inasking 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 andbeen amicably “settled or compromised between Tazara the employer, theapplicants in this matter and Juwata. Juwata was fully involved in this”.…”Juwata as a trade union had been sufficiently involved at various stagespertaining to the redundancy issue of Tazara employees, some of whom were therespondents”. Specifically the learded judge observed, in the course of hisjudgment:“……… I am satisfied and find it as a fact that by the time the matter was referred to theMinister, such matter had already been determined and duly settled. The determinationand settlement on the issue had been effected between Juwata on behalf of theemployees, the respondents and Tazara, the employer, the applicants. There was no moredispute in existence.The learned judge said he appreciated the provision of section 6 (1) (g) of the security ofEmployment Act, which provides:6(1) (g) the function of the field branch, and in relation to the business for which it isestablished, 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 notbecome impending until the council of Ministers had decided on the redundancies. It willhere be recalled that the Tribunal and the Minister were of a different view. They were ofthe view that once super Mac (Super Management and Administration Committee) feltthe necessity of reducing the number of workers the employer should have consulted withJuwata Field branches before making recommendations to the Board of Directors (whichin turn took the recommendations to the Council of Ministers) it was basically becauseof the foregoing that the learned High Court Judge issued the order of certiorari quashingand setting aside the Minister’s order.Prof. Shivji made a number of spirited submissions attacking the learned judge’s decisionand urging us to reverse the High court ruling. We are most grateful to both learnedcounsel for their obvious industry in separate the grain from the chaff and utilize onlysuch 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 andsubsequently 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 netpermit the conclusion that the Trade Dispute had been settled. Further Juwata does nothave to be involved in every Trade Dispute. Juwata has to report to the LabourCommisioner 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 necessaryparty. Section 4 (1) of the JUWATA Act 1979 indeed provides:“JUWATA shall be the sole body representative of all employees within the UnitedRepublic.”Prof. Shivji submitted that this merely meant that there cannot be any other Trade Unionin Tanzania.The appellants’ advocate also addressed us on what he said was the real meaning ofSection 6 (l) (g) of the Security of Employment Act, cap. 574. He supported the view ofthe Tribunal that the intended consultation should have been held before declaring theredundancies. He in other words asked us to fault the view that there were in this case noimpending redundancies before the time the Council of Ministers approved therecommendation put to them by the Board of Director.Prof. Shivji also reiterated his earlier submission before the learned judge that the HighCourt should have refrained from exercising its discretion in favour of the respondentbecause of their delay of over two months after the award before applying for the order ofcertiorari.Mr. Tarimo submitted that Lubuva, J. acted quite properly in granting the order the orderof certiorari and that his decision should not be General’s letter to found the view that theTrade 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 involvedand settled the dispute which no longer therefore existed. The employees had consentedto the settlement, as evidence by the letter from the Secretary General. Mr. Tarimomaintained that JUAWATA is a necessary part to a Trade Dispute, even if theproceedings are under section 94.117

The basis of the High Court decision was118

Administered by inferior tribunals and statutory bodies. And the other school of thoughtconsists of conservatives who have taken a more cautious and reluctant line in theiranxiety not to seem to encroach or to assume an appellate function which they have notgot. However since the decision of the House of Lords in Anisminic Ltd. Vs. ForeignCompensation Commission the number of conservatives is dwindling fast in manycommon law countries.In that case Lord Reid propounded the sentiments which represent the first school ofthought 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 havea long history. No case has been cited in which any other form of word limiting thejurisdiction of the court has been held to protect a nullity.If the draughtsman or parliament had intended to introduce a new kind of ouster clauseso as to prevent any inquiry even as to whether the document relied on was a forgery, Iwould have expected to find something much more specific than the bald statement tofind something much more specific than the bald statement that a determination shall notbe called in question in any court of law. Undoubtedly such a provision protects everydetermination, which is not a nullity. But I do not think that it is necessary or evenreasonable to construe the word determination as including everything which purports tobe a determination but which is in fact no determination at all. And there are no degreesof nullity. There are a number of reasons why the law will hold a purported decision to bea nullity. I do not see how it could be said that such a provision protects some kinds ofnullity 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 thatcase that there were many instances where although the tribunal had jurisdiction to enteron the inquiry, it may have failed to do something in the course of the inquiry which is ofsuch 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 nopower to make. It may have failed in the course of the inquiry to comply with therequirements of natural justice. It may in perfect good faith have misconstrued theprovisions giving it power to act.It may have refused to take into account something which it was required to may haverefused to take into account something which it was required to take into account. That isnot 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 whichadministrative actions can be subject to judicial review despite the ouster clause. In thatcase lord Roskil commenting of the judgment of Lord Diplock said:“My noble and learned friend Lord Diplock in his speech has devised a newnomenclature for each of these three grounds. Calling them respectively illegality,119

irrationality and procedural impropriety, words which if I may respectfully say so, havethe great advantage of making clear the differences between each ground.”“Judicial review has I think developed to a state to-day when without reiterating anyanalysis of the steps by which the development has come about, one can convenientlyclassify under three heads the grounds upon which administrative action is subject tocontrol by judicial review.The first ground I would call illegality; the second irrationality and the third proceduralimpropriety. That is not to say that further development on a case by case basic may notin the course of time add further grounds.I have in mind particularly the possible adoption in the future of the principle ofproportionality which is recognized in the administrative law of several of our fellowmembers of the European Economic Community; by to dispose of the instant case thethree already well-established heads that I have mention will suffice.”Then his lordship explained that by illegality he meant that the decision-maker mustunderstand correctly the law that regulates his decision –making power and must giveeffect to it.Whether he has or not is par excellence a Justinable question to be decided in the event ofdispute, by the judged. And by irrationality he said it meant what has hitherto beensuccinctly referred to as “Wednesbury unreasonableness” (from the case Associatedprovincial Picture Housed Ltd. vs. Wednesbury Corporation 13 )It applies to a decision which is so outrageous in its defiance of logic or of acceptedmoral 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 meansCommonwealth Law Reports (Constitutional Cases) published in London by13. (1948) 1 K.B 223To the question to be decided could have arrived at it. He explained that the a decisionfalls within this category was a question that judges by their training and experienceshould be well equipped to answer or else there would be something badly wrong withour judicial system. And by procedural impropriety Lord Diplock said that it includedfailure to observe basic rules of natural justice or failure to act with procedural fairnesstowards the person who will be affected by the decision; and said that it also includedfailure to observe procedural rules that are expressly laid down in the legislativeinstrument by which its jurisdiction is conferred even where such failure does not involveany derail of natural justice.The formulation by Lord Diplock of the three grounds was followed later by the House ofLords in Wheeler vs. Leicester City Council14 where the decision of the City Council120

was found to be a nullity for irrationality i.e for being unreasonable and also forprocedural impropriety. Yet again it was followed in Secretary of State for theEnvironment vs. Nottinghamshire Country Council15 where the decision of the Ministerwas challenged to be a nullity for being unreasonable.In Zimbabwe recently the Chief Justice Mr. Justice Dumbutshena in the case of PatrioticFront – ZAPU vs. Minister of Justice16 quoted with approval the three categories laiddown by Lord Diplock in the above mentioned case as the recognized grounds forjudicial review; And consequently he held that the action of the President of Zimbabweof fixing the nomination data for the General Election could be attacked as a nullity if itwas suffering from illegality, irrationality or procedural impropriety. However in the endthe learned Chief Justice held that the Presidents action was not ultra vires for beingunreasonable (i.e. irrational)In Tanzania decisions toeing the first school of thought( the broad approach ) are notwanting. First we have the decision of the Tanzania Court of Appeal in Ally Linus andOther vs. Tanzania Harbours Authority.17Under section 28 of the Security of Employment Act18 the jurisdiction of the court isousted in the following words:14. (1986) L.R.C.(Const.) 69615. (1986) L.R.C.(Const.) 76216. (1986) L.R.C.(Const.) 67217. Court of Appeal of Tanzania at Dar es Salaam, Civil Appeal No. 2 of 1983(Unreported)18. Cap 574NO suit or other civil proceeding shall be entertained in any civil court with regard to thesummary 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 atribunal or such body below acts in accordance with the Rule of Law…It is clearthat the basic structure of the Constitution of this country vests the judicial poweror 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 thatreason the judicial arm of the Government has the final word about the meaningof the laws of this country. That is the objective basis of the supervisory functionof the High Court.”Then later on Nyalali, C.J. said.121

“There is plenty of authority to show that the absence or lack of jurisdiction arenot the only ground for certiorari to issue. Para 147 of Halsbury’s Laws ofEngland states that certiorari: “… will issue to quash a determination for excess orlack of jurisdiction or error of law on the face of the record or breach of the rulesof natural justice or where the determination was procured by fraud, collusion orperjury.And certiorari was issued to quash the decision of the Labour Conciliation Board becauseit was found that it was arrived at in breach of rules of natural justice. And in the case ofOmari vs. East African Airways19 Georges, C.J. Held that despite the ouster clause insection 28 of the Security of Employment Act20 the decision of the labour conciliationboard could be attacked by certiorari and mandamus if the same was arrived at withoutfollowing the stipulated procedure for dismissal.However examples of Court decisions in Tanzania which have followed the narrowapproach on oust e clauses are numerous. For example in the Ally Linus Case (supra) atthe High Court level Mnzavas, J.K was the view that an order of certiorari could onlyissue for lack or excess of jurisdiction. He was e-choing the words of Lord Reid inArmah vs. Government of Ghana21 the19. (1970) E.A 61020. Cap. 57421. (1966) 3 All E. R 177“If a magistrate or any other tribunal has jurisdiction to enter the inquiry and to decide aparticular issue, and there is irregularity in the procedure, he does not destroy hisjurisdiction reaching a wrong decision. If he has jurisdiction to right, he has jurisdictionto go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction to gowrong. Neither an error in fact nor an error in law will destroy his jurisdiction. “22And another example of the narrow approach is the decision of the former Chief Justineof Tanzania Mr. Justice Saidi in Re Petition by Habel Kasenha. 23 By section 78 (2) ofthe Local Government Elections Act it was provided:“The proceedings of meeting of the District Executive Committee or any otherorgan of the Party which is held for the purpose of this Act, should not be subjectto 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 theelection was procured by fraud and collusion, as those are the ground upon which thepetitioner 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 electedPresident, his election shall not be questioned in any court.”122

Those who espouse the narrow approach would like to tell us that because of that ousterclause 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 16of the Public Service Commission Act 1962 read“The question whether any Commission has validly performed any functionvested 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 inquireinto the validity of the decision to dismiss Anthony Sefu.22. At p 18723. (1967) E.A 44524. (1972) HCD No.220taken by the East African Railways and Harbours Service Commission as the decisionwas within its jurisdiction. Even if the decision was procured by fraud, that school ofthought argues that the commission has the right to go wrong or right within itsjurisdiction. It is of interest to note here that on a similar ouster clause Kneeler, J. of theHigh Court of Kenya in the case of Chief vs. E.A Community25 decided to adopt thebroad approach and held that the High Court had power to enquire into the decision ofdismissal of an employee to see if the same was arrived at tin breach of rules of naturaljustice or not.Surprisingly in Tanzania in cases filed to challenge detention orders under the PreventiveDetention Act, 196226, both the High Court and the Tanzania Court of Appeal havetaken the narrow approach. That statute had the ouster clause in section 3 which now hasbeen 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 notgo further than the “authenticity” of the detention order to see if it is properly signed andsealed.A similar approach was adopted by Maganga,J. in Ahmed Janmohamed Dhirani vs. R.28and 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 adoptedthe narrow approach despite the fact that the Anisminic Case was mentioned. In that caseNyalali, C.J. said:123

25 (1970) E.A 487(K)26 Cap. 49027 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No2 of 1977 (Unreported)28 (1979) L.R.T.No 129 High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No.10 of 198430 (1980) L.R.T No 215.“That the validity of an order of detention made under the Preventive Detention Act isdetermined solely by its face value and not by its background. In other words the order isto be judged by its appearances. If it appears to be an order made under the Act then it isvalid 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 thedecision was arrived at even if it was done in breach of rules of natural justice or it wasprocured by fraud. And it appears Bahati, J. sticked to the same narrow approach in late1986 in what has become to be known as the Mapalala Case despite the fact that theouster 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 countryhas been above to employ with impurity the Preventive Detention act to detain cattlerustlers and moshi liquor drinkers who are ordinary criminals while the statute inquestion was meant for preservation of state security.The poor attitude of the High Court and Tanzania Court of Appeal towards the liberty ofa citizen in a face of a detention order had led the Legal Aid Committee of the Faculty oflaw of the University of Dar es Salaam to complain in their book Essays on Law andSociety that these courts are more executive minded than the executive itself.” While aradical lawyer Harrison G. Mwakyembe in his paper. “Bill of Rights in Tanzania – AGeneral 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 beinterested to preserve their bread and butter rather than risk a sack by crossing sword withthe 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 MichaelMatovu 33 and later in Re Ibrahim & Other34n the High Court took the narrow approachand held that the courts are not allowed to go beyond seeing the detention order. Theycould not question as to how it was arrived at and recently the Nigerian Federal SupremeCourt has124

31. (1985) At p. 3532. One of the papers delivered between 20 th to 25 th October, 1986 when theFaculty of Law of University of Dar es Salaam celebrated its Silver Jubilee, atp.2633. (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 ofJournalist vs. A.G of Nigeria 35 and second is the case of Wang vs.Chief of Staff SupremeHeadquarters Lagos. 36 The ouster clause under section 1 of the Decree No 13 of 1984provided.(1) No civil proceedings shall lie or be instituted in any court for or onaccount of or in respect of any act, matter or thing done or purported to bedome under or pursuant to any Decree or Edict and if any suchproceedings are instituted before on or after the commencement of thisDecree, the proceedings shall abate, be discharged and make void.In the first case a trade union of Journalists sought to challenge as unconstitutional adecree, which curtailed freedom of expression. The High court granted the applicationbut 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 andquite another to say that, that court has no jurisdiction to inquire or determinewhether or not what is before him is within the contemplation of the provisions ofthe ousting legislation.In my opinion the learned Judge having held the he had jurisdiction to make theinitial inquiry as to whether what was before him were matters within thecontemplation of the above Decrees, should have come to the conclusion that hisjurisdiction has been completely ousted.”And in the latter case the applicant sought to challenge by way of habeas corpus adetention order issued under the State Security (Detention of Persons) Decree, 1984 37 asof 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 suchas to affect and deal with entertaining of the action as opposed to words dealing witheffect of a decision given in an action. And according to him the ouster clause in this caseconcerned the entertaining of an action. It was pointed out that a tribunal statutory body isallowed to make errors within its jurisdiction.125

But not all Commonwealth countries have adopted the narrow approach. I have alreadycited the case of Chite (supra) from Kenya. In Australia in the35 (1986) L.R.C (Const.) 1.36 (1986) L.R.C (Const.) 319.37 Decree No. 2 of 1984Case of O’Rourke vs. Miller38 the decision of an administrative body was attacked onprocedural impropriety for failure to give fair opportunity to a servant who had beendismissed 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 clausecontained in section 65A (b) of the Public Service Act, 1979 provided:“Without affecting the government, no proceedings whether for an order in thenature of prohibition, certiorari or mandamus or for a declaration or injunction offor any other relief, shall lie in respect of –© the appointment or failure to appointa person to a position in the Public service, the entitlement or non-entitlement of aperson 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 naturaljustice in that he was entitled to be given reasons for the refusal to be given a particularappointment. 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 ofappointment was not an action in respect of an appointment or failure to appointment wasnot an action in respect of an appointment or failure to appoint and so the ouster clausehad no effect. I have already cited some English cases adopting the broad approach, butone final case will not be too much. It is the case of R.vs.Secretary of State ex-partePhansopkar10 in which the ouster clause in section 26 of the British Nationality Act of1948 was worded as follows.The exercise by the Secretary of State of his discretion in relation to applicationsof 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 stateeffusing to consider his application on the ground that the applicant should have made theapplication to the British Embassy in India before she left India. The Court of appeal heldthat the ouster clause had no effect when the Secretary of State refused to consider the.38. (1986) L.R.C (Const.) 65439. (1985) L.R.C (Const.) 104140. (1976) Q.B 606126

Application on merits. Mandamus issued ordering the Secretary of State to hear theapplication 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 virginthinking when I say that ouster clauses are more or less paper tigers. That distinguishedEnglish judge Lord Denning, M.R in his book. The closing Chapter42 correctlysummarizes the duty of the courts in judicial review. He says:“It is implicit in the powers conferred on a public authority that in anydetermination that it may make it will act in accordance with the law. If it goeswrong in point of law or misdirects itself in point of law, it goes outside itspowers. For many years there was a distinction between the kinds of error.If the public authority went out side its jurisdiction altogether, its decision wasvoid. But if it make an error within its jurisdiction, it could not be avoided. Thatdistinction has now gone. No tribunal or inquiry has any jurisdiction to make anerror of law on which the decision of the case depends.”42This has now been affirmed by the House of Lords in the vastly important case of OReilly vs. Mackman43 when lord Diplock said:“The full consequences of the Anisminic Case have been virtually to abolish thedistinction between errors within jurisdiction that adhered avoidable a decisionthat remained valid until quashed and errors that went to jurisdiction and rendereda decision void ab initial provided that its validity was challenged timelessly inthe 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 thelaw even in Tanzania despite the few decided cases which espouse the narrow approach.41. (1983) Butterworth.42. At. Pp.136 – 13743. (1982) 3 W.L.R 1096Therefore I would held that the effect of exclusion clauses is not to disarm the High Courtof its supervision role of inferior tribunals and statutory bodies. As pointed out by LordWilberforce in the Anisminic Case (Supra):“ The question what is the tribunal’s proper area is one which it has always beenpermissible to ask and to answer and it must follow that examination of its extentis not precluded by a clause conferring conclusiveness, finality or unquestionablyupon its decisions.127

These clauses in their can only relate to decisions given within the field ofoperation entrusted to the tribunal. They may, according to the width andemphasis of their formulation, help to ascertain the extent of that field, to narrowit or to enlarge it, but unless on is to deny the statutory origin of the tribunal andof its powers, they cannot preclude examination of that extent”44.Those observations equally apply to administrative bodies, and statutory bodies besidesthe tribunals. Even if the decision of that body is within its jurisdiction, the courts areentitled 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 findhimself victimized by the over-zealous officials in the course of discharging theirmultifarious functions. Now the imperative need in a democracy is to subject the powercenters, wherever they may be located to fundamental constitutional or public lawlimitations. One of the fundamental limitations upon governmental and parastatalfunctions is that every action of the executive government which operates to the prejudiceof a person must be informed with reason and should be free from arbitrariness. Thislimitation springs from the very concept of the Rule of Law.This concept of Rule of Law has suffered many definitions and survived varyingperceptions ranging from A.V Dicey in his book The Law of the Constitution (1885) tovarious recent definitions. Yet there is substantial agreement that the basic rationale andthe essential purpose of the Rule of Law is “protection of the individual against arbitraryexercise of power, wherever it is found”. Consequently the government and its variousorgans cannot be left to act arbitrarily but its action must be in conformity with standardsor norms which are not arbitrary, irrational or irrelevant. That is the Rule of Law. Itwould indeed lead to an absurd situation if a tribunal or administrative body, having beengiven a circumscribed area of operation, were entitled of its own motion to extend thatarea by misconstruing the44 At p. 207Limits of its mandate as set out in the stature. An English judge a Mr. Farewell, L.J along time ago in the case of R. vs. ex-parte Morgan45 exclaimed that, thatconstruction 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 anecessary weapon by the ruling class to “handle” or “deal” with the people.As the then Tanzania Party (TANU) newspaper The Nationalist of 24 th June, 1969once commented in its editorial of what looked like in a bourgeois fascist State. Itsaid:“The bourgeoisie makes its own laws. These laws are both its property and aninstrument for maintaining it in power. This is also perfectly understandable Iterms of the realist of bourgeois societies which necessarily must exist above thepeople.128

Those who exist above the people must have their laws exist above the people. Itis the people that must serve and obey bourgeois laws. It is not bourgeois lawsthat must serve the people. This is so because in the final analysis bourgeois lawsare made to protect the interests of the bourgeoisie.There us everything for those who argue that those who advocate the narro approachon the ouster clause are indeed using the law to protect the interests of the ruling classat 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 /dominantclass – in some cases law is used as a direct instrument tool of the ruling class andserves 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 rulingclass and its statutory bodies.The judiciary has therefore a duty to see to it that the ruled are not oppressed by therulling class unnecessarily or purely to serve the immediate interests of those who clingto power. The Judiciary has a role to enhance the rights of the people. It is though thecourts of law that the people can defend their rights.44. (1910) 2K.B 859 at p.88045. (1986) Heinemann & T.P.HIn the judiciary the world over, there exists two broad strands of judicial approachtowards statutes general.There have been those judges who have taken the view that, without usurping thefunctions of Parliament, a judge has the duty to interpret the law, as far as he can, in away which accords with social and personal justice, which upholds rather than destroysthe civil liberties of the individual, which looks with suspicion and not equanimity on theincreasing encroachment of the state and its various statutory bodies in the lives ofcitizens. The judges who espouse the broad approach to ouster clauses in my consideredview 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 tothe justice of the case, and affirming that it is for parliament to change the law that turnsout to be unjust or absurd and not for judges to achieve that result through statutoryinterpretation. This latter kind of judges has been dubbed “Leaky Umbrella” in theimportant task of protection of the civil liberties of the citizens.129

On my part I would not like to be in a category of “leaky umbrellas” and would thus takeup the broad approach to ouster clauses. I am entitled to examine the decision of therelevant 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 JohnMwombeki Byombalirwa vs. Regional Commissioner and Regional Police Commanderof Kagera Region, 47 I set out the five conditions that need to be proved so that an orderof mandamus may issue. These five conditions are:1 The applicant must have demanded performance and the respondents musthave refused to perform.2 The respondents as public officers must have a public duty to performimposed by statute or any other law but it should not be a duty owed solely tothe 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 adiscretionary one:4 The applicant must have a locus stand; that is, he must have sufficient interestin the matter, and46. High Court of Tanzania at Mwanza, Miscellaneous Civil Cause No. 22 of1986.5 There should be no other appropriate remedy available or rather better still,the court should feel disposed to exercise its discretion in favour of theapplicant.In the application at hand, conditions Nos. 2,3,4, and 5 generate no controversy. Therespondent concedes that these are non-issues; it is conceded that the respondent as anAssistant Price Commissioner has a public duty of an imperative nature towards theapplicants – that is of reviewing food prices. The applicants own restaurants andhotels and they provide catering services to the general public. They thus fall undersection 13(1) (a) of the Regulation of Prices Act, 1973 as “persons who provideservices” who can move the Assistant Price Commissioner to review process of theirservices.They indeed have substantial interest in the matter as persons who are directlyaffected by the prices of the services they provide which have to be fixed by theAssistant Price Commissioner. They are not mere busybodies. And it is conceded thatthere is no other alternative remedy provided under the relevant statute for theapplicants to resort to.The point I controversy is condition No. 1 The respondent has argued that he did notrefuse to review the process. He contended that he duly reviewed the prices on11/11/1986 and that even prior to this date; the prices in operation had been passed inaccordance with law. Mr.Chama Matata for the respondents said that early in130

November 1986 they made a market survey of prices of items which have nogovernment controlled prices and which are used by the hotel owners.Then as a result of the market survey and considering the government – controlledprices of the other items, the Assistant Price Commissioner decided to make anoverall increase in prices of 27% for all the food services affected. He said that the27% increase took into account the provisions of section 12 (1)(a) and (e) of theRegulation of Prices Act, 1973,the provisions which require the Assistant – PriceCommissioner in determining the price structure of the services to have regard to thecommodities and services that are essential to the community; and to have regard tothe need to maintain fair relationships among the incomes of different sectors of thecommunity.The respondent argued that the prices were fair, realistic and within the purview ofthe statute in that the interests of the producers, traders and the community at largewere 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 on11/11/1986 for the services they rendered were unrealistic and contrary.To the intention of the legislature. He said that after all the Assistant PriceCommissioner did not afford them an opportunity of being heard. He contended thatthe market survey that was conducted was haphazard and selective in that goods likesugar, cooking oil, etc. items that have been imported after the liberalisation of tradewere not included in the market survey.And it was argued that the running costs of the hoteliers were not taken into accountin the 27% increase. The result is that the prices that were fixed were unrealistic andnot 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 isbetween shs. 10/= and shs12/=.He said that as a result no profit margin has been left to the hoteliers. The agent forthe applicants also argued that the process that had been fixed on 11/11/1086 havenonetheless been overtaken by events in that new government controlled process foritems like sugar have been increased. It is said the new prices were announced by thegovernment in early March 1987.In my considered opinion the decision of the Assistant Price Commissioner of11/11/1986 cannot prevail on three grounds. First because of failure to give theapplicants an opportunity of being heard; First because of failure to give theapplicants an opportunity of being heard; secondly because he has abused hisdiscretion and thirdly because of failure to follow the statutory provisions. I willhereinafter elaborate each of these three grounds.First the applicants were not afforded an opportunity of being heard. Chama Matatafor the respondent conceded that much but tried to explain away that. They had131

efore them the written proposals from the applicants which are annexture D to theapplication. But I note that the Annexture D is dated 14/11/1986 and therefore couldnot have been considered by the Assistant price Commissioner on 11/11/1986In fact the document of 14/11/1986 is a letter in which the applicants mounted anattack on the process fixed by the Commissioner. Now the question arises as towhether the applicants were entitled to be heard. I answer that question in theaffirmative.Any statutory body when exercising the powers conferred on it by a stature must actin accordance with the principles of natural justice or fairness, unless they areexpressly excluded by the relevant legislation. I subscribe to the view taken by LordUpjohn of the Privy Council in the case of Durayappah vs. Fernando48 that.47. (1967) 2 All E.R 152 P.COn the question of audi alteram partem. The statute can make itself clear on thispoint and if it does, cadit question. If it does not then the pronciple stated byByles, J. in Cooper vs. Wandsworth of Works49 must applied. He said this: alongcourse of decisions beginning with R. vs. Cambridge university – Bentley’sCase50 and ending with some very recent cases; establish that although there areno positive words in the statute requiring that the party shall be heard, yet thejustice 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 andtherefore we shall supply the omission.However it is not always that the principles of natural justice apply. In the abovementioned case Lord Upjohn said that the principles were applicable to victims ofdismissal from office, those deprived of their property and those expelled from clubsand he left it open for the other cases when the principles would apply. Recently inKenya Mulli, J. in the case of Angaha vs. Registrar of Trade Unions, 51 afterdiscussing various decided cases held that the right to be heard was confined to wherethe matter was:“Concerned with vested rights which were sought to be interfered with withoutallowing those affected to be heard in respect of their vestedrights.”But the better view on the matter seems to me is the statement by Lord Denning M.R inthe case of Achmidt vs Secretary of State52 that:“I quite agree of course that where a public officer has power to deprive a personof his liberty or his property, the general principle is that it is not to be donewithout his being given an opportunity of being heard and of makingrepresentation son his own behalf.”132

In the case at hand of course the applicants have vested interests in the matter, as thechange in price would affect their livelihood. It is depriving them of their propertywithout being heard. In fact any member of the public has a right to be heard on thematter as the decision adversely affects his livelihood i.e. his pocket as a potentialcustomer of the hotels concerned.49 (1864)50 (1723) Fortes Rep. 20251 (1723) E.A 297 (K)52 (1969) 1 All E.R 904 C.A. at p. 908The applicants have in fact another string to their bow. The law has advanced mustfurther on this field. It is said that a person is entitled to a fair hearing before a decisionadversely 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 “legitimateexpectation” in this context originated in the judgment of Lord Denning, M.R. in SchmidtCase (Supra). Legitimate expectation may arise wither from an express promise given onbehalf of a public authority or from the existence of a regular practice, which the claimantcan reasonably expect to continue.The expectation thus may be based upon some statement of the public authority whichhas the duty of making the decision, if the authority has through its officer acted in a waythat would make it unfair or inconsistent with good administration for him to be deniedsuch an inquiry – see English cases on the point first R.vs. Board of Visitors of Hullprison 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 alegitimate expectation on the part of the applicants (assuming they had no vested interestsin the matter) that the Assistant Price Commissioner in consonance with a goodadministration would not deny them an opportunity of being heard as they had constantlypestered hem to review the prices; and he knew his decision would adversely affect theapplicants.The respondent might argue that he was merely exercising an administrative power andnot a judicial act and so he had no obligation to adhere to the principles of natural justiceor fair play. But as Lord Denning, M.R pointed out in the case of R.vs Gaming Board forGreat Britain Ex parte Benaim.56“At one time it was said that the principles (of natural justice) only apply to judicialproceeding and not to administrative proceedings. That heresy was scotched in Ridge vs.Baldwin57…. So let us sheer away from these distinctions.133

53 (1979) 1 W.L.R. 140154 (1982) 3 W.L.R. 1096 H.L55 (1985) L.R.C.(Const.) 94856 (1970) 1 All E.R 528 C.A at pp 533-53457 (1963) 2 all E.R 66And again Lord Denning M.R reiterated his warning in Breen vs. AmalgamatedEngineering Union58 that;“It does not matter whether its functions are described as judicial or quasi-judicialon 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 purposesof judicial review w as put to a lasting rest by the Tanzania Court of Appeal in the case ofPatman Garments Industries Ltd. Vs Tanzania Manufacturers Ltd.59 as per the judgmentof Mwakasendo, J.A I would accordingly follow that decision.However in affording someone an opportunity of being heard, it does not matter if thehearing is done orally or by the medium of written statements-see El-Kindly, J. in thecase of Donald Kilala vs. Mwanza District Council.60“But whatever standard is adopted, one essential is that the person concernedshould have a reasonable opportunity of presenting his case.”And more recently in the case of Mclnnes vs. onslow Fane & Another62 the Court ofAppeal of England held correctly in my view that where administrative as opposed tojudicial or quasi-judicial discretion was concerned, the duty to act fairly was moreappropriate than the duty to act in accordance with strict rules of natural justice, Theconcept of “fairness” is broad and flexible, its requirements varying according to thecircumstances.58 (1971) 1 All E.R 1148 at p. 115359 Court of Appeal of Tanzania, Civil appeal No. 15 of 1981(Unreported)60 (1973) L.R.T. No.2061 (1949) 1 All E.R 109 at p. 11862 (1978)3 All E.R.211134

of each case, but it a fundamental requirement that before a decision is reached a fairopportunity be given or afforded to those to be adversely affecting his interests is makeby any public official or body. I accordingly so hold.Secondly I would hold that the decision of the Assistant Price Commissioner was voidbecause of the wrong exercise of a discretion or rather he failed to observe the correctprocedure outlined by the statute before arriving at a decision.Any statutory body clothed with the power to exercise discretion is required to observethe correct procedure as provided in the governing stature, and failure or non-compliancewith the procedural requirements will invalidate the decision.For example in the case of Re an Application by Bukoba Gymkhana Club63 the HighCourt held that the decision of the Liquor Licensing Board which was based onextraneous matters (i.e. the non-existing racial discrimination) was void, as it was anabuse of th discretion by the said Board. In the case at hand Mr. Chama Matata stated thatthe Assistant Price Commissioner based his decision after paying regard to there mainfactors given under section 12 (1),(a),(b) and (e) of the Regulation of Prices Act, 1973which provide:a).b).c).the commodities and services essential to the community;the need to avoid unduly rapid or frequent variations in prices; andthe need to maintain fair relationship among the incomes of different sectors ofthe community.But those factors is only part (the tip of the iceberg) of what the Assistant PriceCommissioner omitted to consider and that is contained in section 12 (2) (e) of theRegulation of Prices Acr, 1973 and it provides:“To take into account the cost of material (if any) used, the direct and theoverhead costs of providing the service and a margin in relation to theturnover and the capital employed.”From the submissions of Mr. Chama Matata when fixing the prices (whichWas an increase of 27%)the Assistant Price Commissioner only considered.63 (1963) E.A. 478the cost of the material (after a market survey). But according to the law the shouldhave 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 hotelowners.135

The Assistant Price Commissioner it would appear only wanted to please the patronsof hotels but did not consider the fact that he was shifting the heavy financial burdento 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 nuisanceor pariahs ought to stop and has recently been a subject of a scathing attack from onedistinguished journalist of this land Rose Kalemera as reported as reported in theSunday News of 12 th April, 1987. I share her feelings revulsion at some hypocrites orpseudo-socialists when she said;“The was a time in Tanzania when success in private business was equated with anunforgivable sin. A successful businessman was viewed as a traitor to the Ujamaacause –an idelological Judas Iscariot. This was due to the misguided concept,advocated by party politicians who sought praise as Ujamaa front-linesrs, thatsocialism was synonymous to poverty. Paradoxically,the very preachers of the gospelof poverty amassed immense immense wealth through clandestine means but posedas the poorest, just to cover themselves up.”The respondent in this case appears to harbour similar misguided conceptions aboutthe hotel owners. However whatever his feelings towards them, he is duty bound toconsider their interests when fixing prices. The Assistant Price Commissioner doesnot have an unfettered discretion on the matter. As Lord Reid reminded us in the caseof discretion entrusted to a Minister in Padfield vs. Minister of Agriculture64 wherehe 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 theprotection of the court.”Equally in this country, our law is not defective so as to deny a remedy where theAssistant Price Commissioner misconstrues the law as well as the extent of hispowers 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 infixing the maximum prices the advise of the District Advisory committee as he isrequired to by section 10(6) of the Regulation of Prices Act 1973.Mr Chama matata didnot allude to this factor at all besides mentioning the 27% increase after conducting amarket survey. Failure to take the advice from the Advisory Committee was in my viewfatal and rendered the decision of the Assistant Price Commissioner invalid.136

I note that in the Advisory Committee, M.P.s are included, who definitely would playvery important role in tapping and expounding the interests of the various social groupsThe 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 Commissionerwas not in accordance with the law and so I declare it null and void At this juncture Iwish to make certain observations about the National Price Commission which fixes themaximum 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 ofjudicial review by this court to see if the principles of natural justice are adhered to (e.gare the consumers at large given an opportunity to be heard?) and to see If the procedurelaid down by the statute is scrupulously adhered It may not be long when someenlightened citizens alive to their rights, would wish to challenge the decisions of theNational Price Commission thought public interest litigationOne last point about section 14 (1) of the Regulation of Price Act,1973 which providedthat the Assistant Price Commissioner shall not review the prices for services, more thanonce in any calendar year, save where he is satisfied that special circumstances exist. Ofcourse this provision does not apply to the present case where I have ordered a reviewafter declaring the previous review as void. Be that as it may, with the frequent pricechanges on the market and constant devaluation of our shilling, it is submitted thatspecial circumstances would always be found to exist for the Assistant PriceCommissioner to make a review of the prices as often as possible within a year if fairplay 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 theAssistant Price Commissioner but only applied for an order of mandamus in such mattersgo together. I find the irregularity curable, more so that the applicants were representedby a layman I accordingly quash the decision of the Assistant Price Commissioner of11/11/1986 in which he fixed maximum prices of services at hotels and restaurants andwould order that he reviews the prices afresh in accordance with the law,the restaurantand hotel owners will fix their own prices on the principle of supply and demand. Theapplicants are entitled to the costs o this application which I award them. Orderaccordingly.J.L MWALUSANYAJUDGEMWANZA18.4.198 7The facts in this case are in a nutshell and the question. To be decided are purely legaland require very careful treatment. The plaintiff P.P Mugamba was employed by theNational Pharmaceutical Company but the employment was terminated in 1991. He137

considered it wrongful and instituted a trade dispute in the industrial court in 1997 atTabora against the company. At the conclusion of the proceeding the action wasdismissed. He felt aggrieved by the decision but he was apprised that no appeal could lieagainst it in view of the legal impediment expressed in section 27 (10) of the industrialcourt o Tanzania Act 1968 as amended by Act No.3 of 1990.Section 27 (10) provides that every award and decision o the industrial courtshall be final and not liable to be challenged reviewed, questioned or called in any courtsave on the ground of lack of jurisdiction in which case the matter shall be heard anddetermined by full bench of the high court. In his pleadings the plaintiff has averred thatthis 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 arebeing determined be entitled to a fair hearing by the court of law or other body concernedand be guaranteed the right of appeal or another legal courtIt may be observed that this constitution provision was already in place and force asWhen section 27 (10) was enacted.As indicated, the plaintiff has come to this court to question the legality of the section, tourge upon us that the provision purports to take away the right conferred on him byArticles 13 (6)(a), and to seek a declaration that the section, to the extent that it isinconsistent with the constitutional provision, is unconstitutional and therefore null andvoid. No doubt, as foretasted, it is really imperative for us to handle this matter withextreme wariness for in principle that is precisely as it must be.No question whatever that to declare a provision of a statute unconstitutional and invalidis invariably a matter of great moment a fortiori where, as in the presents case, theconstitutional provision under reference has preceded the impugned statutory provision inpoint 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 isprecluded from inquiring into the legality and propriety of any decision of the IndustrialCourt save for matters of lack of jurisdiction, therefore, factual errors or other errors inlaw fallen into by the Industrial Court are not liable so be questioned or challenged beforeany such form, Mr,Salula for the respondents meets this argument by contending thatinasmuch as section 27 (10) allows a person to go to the High Court it cannot be said tocontravene Article 13 (6) (a) and we cannot help wondering whether this is not anevasive answer.The construction put on section 27(10) by Dr. Henga is in our view the true andreasonable one...This provision pares away the right guaranteed by the Article and to allintents and supposes such is exactly the intendment. Mr Salula has not provided anyeffective rejoinder, and it seems to us that he has not addressed himself to the real issue.138

The complaint is not that a person is not allowed to go to the High Court at all. It is thathis improperly abridged by the you every provision.The argument advanced on behalf of the plaintiff is also that the limitations which areinherent in section 27(10) have no plausible connections with the provisos prescribedunder Article 30(2), and reference is made to the judgment of the court of Appeal inKukutia 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 aprovisions of a law happens to be inconsistent with any of the constitutional provisionspertaining 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 availthe plaintiff , because, according to him, section 6 of the Government Proceedings Act of1967 with which the court was dealing in that case was held to be unconstitutional on theground that it completely precluded access to the court, unlike section 27(10) of theIndustrial Court of Tanzania Act. We are bound to disagree. So far as we can discern thatwas strictly not the ratio decided of that decision, at any rate the only one. And we thinkit is quite explicit that the rules laid down by the Court o Appeal in that judgment areeminently capable and were meant to be of or general application.Quite frankly we have to acknowledge having failed to ascertain in what way section27(10) can ever tend to the overriding public and societal interests set out under Article30 (2), how, in other words, the limitations imposed under that section can be reasonablelinked 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 ofArticle 30(2) can be called into play.Mr Salula further submits that section 27(10) cannot be impugned because, in the firstplace, Article 13(6) (a) gives a person aggrieved the right to another legal remedybesides 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 theobjection taken by the plaintiff in the instant case, namely, that the section goes a longway to negate each of those two alternative rights. As Mr Tenga says, decisions of theIndustrial Court which are not comport with the weight o evidence, or which are givenper incuriam are in deliberate disregard to the relevant authorities, are by virtue of thesection not impugnable. Yet these are the things which would probably give rise to themajority 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 onground of lack or jurisdiction is encroaching upon a person’s right given under Articles13(6) (a). It is also his observation that the proceedings of the Court are held by a judgeof the High Court and assisted by two assessors, that an elaborate procedure obtains; thatappearance by advocate is allowed; and that in this case the proceedings were concluded139

y 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 areneither here nor there. Mr Salula has not shown how the Industrial Court is not a one –tierorgan. For ourselves, we think there is no way around the fact that the Industrial Courthas all the basic hallmarks of a court of first instance when exercising that particularjurisdiction, 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 rightgiven under Article 13(6) (a). And we consider circumstances like the constitution of thecourt, the elaborateness of its procedure, the permissible legal representation and theelegance or lucidity of the court’s judgments to be completely irrelevant to what is atissue 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 asdemonstrated supra and the language of the section precludes any other conclusion. Asalready mentioned, we also take the view that the section falls outside the under ofArticle 30(2). We so holdThis action therefore succeeds. We are amply satisfied that section 27(10) of theIndustrial Court of Tanzania Act 1967 is unconstitutional and invalid to the extent that itdeprives a person of his basic right of appeal or another legal remedy except on ground oflack of jurisdiction we so declare.[COURT OF APPEAL]REGINA v. PANEL ON TAKE –OVERS AND MERGERS,Ex parteDATAFIN plc AND ANOTHER1986 Nov.25.26.27 Sir John Donaldson M.R.Dec 1:5Lloyd and Nicholls L.JJB. Judicial Review – Panel on Take and Mergers-Complain – panel dismissing complaintof alleged breach of panel’s code on take-overs and mergers-whether decision subject tojudicial 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 –Paneldismissing complaint – Whether decision of panel erroneous – whether panels decisionsubject to judicial review.140

The applicants. Who were bidding in competition with N. Plc. To take over anothercompany complained to the panel of take –over another company. Complained to thePanel of Take-overs and Mergers that N.Plc had acted in concert with other parties inbreach of the City Code on Take overs and Mergers. The panel dismissed the complaintand the applicants applied to the High Court for leave to apply for judicial review by wayinter alia . of certiorari to quash the panels decision and of mandamus to compel the panelto reconsider the complaint .The judge refused leave on the ground that the panelsdecision was not susceptible to judicial review.On the renewed application before the Court of appeal the court ranting leave in orderitself to consider both the substantive application and the question of jurisdiction:-Held that the supervisory jurisdiction of the High Court was adaptable and couldbe extended to any body which performed or operated as an integral part of a systemwhich performed public law duties.Which was supported by public law sanctions and which was under an obligation to actjudicially, but whose source of power was not simply the consent of those over whom itexercised that power; that although the panel purported to be part of a system of selfregulationand to derive its power solely from the consent of those whom its decisionsaffected, it was in fact operating as an integral part of a government framework for theregulation of financial activity in the city of London was supported by a periphery ofstatutory powers and penalties,and was under a duty in exercising what amounted topublic powers to act judicially; that, therefore, the court had jurisdiction to review thepanel’s decision to dismiss the applicants complaint; but that since, on the facts, therewere no grounds for interfering with the panel’s decision the court would decline toentervene (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.B864,D.C.,appliedPer Sir John Donaldson M.R. In the light of the special nature of the panel, itsfunction, the market in which it is operating, the time scales which are inherent in thatmarket and the need to safeguard the position of third parties, who may be numbered inthousands, all of whom are entitled to continue toAbadesa (1967) 1 A.C. 826,per Lord Pearce at p.846 . (The emphasis is mine.) If thejudge had taken the latter course, it seems clear that he would have regarded theresponsibility 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, theamounts of their respective contributions “shall be such as may be found by the court tobe just and equitable having regard to the extent of that person’s responsibility of thedamage in question. “I see no sufficient grounds for differing from the judge’s conclusionthat the responsibility of each of the two defendants for that part of the injury for whichthe plaintiff was not responsible was equal.I therefore agree that the appeal of each of the defendants should be allowed onthe limited issue of apportionment and that the judge’s order should be varied by giving141

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 fiftyfiftybasis.Appeal of each defendant allowed on the limited issue of apportionment Plaintiff to havejudgment against each defendant for 50 per cent of his claim the contribution to be on afifty-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 forleave to apply for judicial review of a decision of the Panel on Take-overs and Mergerson 24 November 1986 under the City Code on Take overs and Mergers with the effectthat an offer by the first interveners, Norton Opax Plx ., for the issued ordinary sharecapital of McCorquodale Plc become unconditional. The second interveners were SamuelMontagu & Co.Ltd .,merchant bankers and financial advisers to Norton Opax. The reliefsought included (1) an order of certiorari to quash the panels decision and/or a declarationthat decision was wrong in law; (2) an order of mandamus requiring the panel toreconsider and take a proper decision in accordance with the City code; (3) an injunctionto 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 November1986,or (b) registering any further shares in McCorquodale in the name of Norton Opaxor 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 courseof 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, ascompeting bidders for McCorquodable had a sufficient interest to make the application.On 25 November 1986, Hodgson J. refused the applicants leave to make thatapplication and on the same day the applicants renewed the application before the Courtof Appeal. The court granted leave in order to hear the substantive application itself andto consider more fully the question of jurisdiction. At the conclusion of the hearing, thecourt dismissed the substantive application but reserved both its reasons and its decisionon 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 threepossible 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 andobtainjudicial review under R.S.C., Ord.53 (b) a private duty is owed by the decisionmaker,whichthe 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 theperson affected can invoke.142

A paradigm,but not the only case of public duty,is where the power to take the decisionwas derived from public law,e,g a statute, statute, statutoty instrument, prerogative orsome other aspect of the common law. A paradigm case of private duty is where thedecision-maker and the person affected are in contractual relations with each other andthe decision arose exclusively out of, or related exclusively to,the contractualrelationship,Similarly,perhaps ,if the decision affects the person’s (private) right to earn aliving,then the decision maker’s duty might be a private one An example o no duty wouldbe a decision by the committee of the Garrick Club not to admit a person seekingelection; (If the decision effected an existing member he woild have contractual rightsunder (b) above)The circumstances in which a public duty exists are not confined to situations where thesource of the power lies in public law (the situation considered by; Lord Diplock inCouncil of civil Service Union v. Minister for Civil Service (1985) A.C 374.409b). Thereare 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 whichhas a public law character by reason of the fact that it has consequences in the field ofpublic law including law including for example, the fact that measures taken in theexercise of public law powers ; (iii) the “function” test; where the system under which thedecision is made performs the functions of a public law system.In refusing leave to apply fro judicial review in the present case, Hodgson J. hadin mind both Reg. v. East Berkshine Health Authority Ex parte Warsh (1985)Q.B 152and Law v. national Greyhound Racing Club Ltd (1983) 1 W.L.R 1302; yet thecircumstances of both cases are different from those of the present case because of thecontractual relationships involved making them essentially private duty cases.The factual and legal background to the Code on Takeover and Merges; the bankof England was an important progenitor of not the onlie begetter. The bank of England isa statutory body with wide powers; see Bank of England Act 1946 section 4. The Bankclearly performs its relevant function in part in collaboration with the Department ofTrade and Industry. Between them they gave birth to the Joint Review Body which isengaged in general supervision of the securities market. For the origins of the Code ofTake overs and Mergers, see Halsbury Laws of England 4 th ed. (1974), vol, 7,para 791.The code is a code of ethics, not a code of law. Until recently, the Council of theSecurities Industry had been involved in its enforcement, but in 1985 the Panel on Takeoversand Mergers assumed sole responsibility.(The Securities and Investments Board is not yet in full operation) The code is statutorilyrecognised; see, for example paragraph 10 of the Schedule to the Restrictive TradePractices Act 1976 Sanctions for breach of the code are set out in the introduction to thecode and include expulsion from the securities markets and reference to the Departmentof Trade and Industry, the Stock Exchange or other appropriate body, which would usestatutory or contractual powers to penalize any transgressor. A breach of the code is ipso143

facto an act of misconduct by a member of the Stock Exchange, for which he may beexpelled.Furthermore, the admission of shares to the Official List may be withheld in the event ofsuch a breach. The listing of securities is a statutory function performed by the StockExchange 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 EuropeanCommunities Act 1972, in implementation of E.E.C. directives. Thus a sanction forbreach of the code – delisting – involves the exercise of a statutory power. Therefore thecode has many of the characteristics of law, but lacks the redeeming reatures of a legalsystem.The historical development of the court’s supervisory jurisdiction by way ofjudicial review may be outlined as follows. (1) Rex v. Electricity Commissioners, Exparte London Electricity Joint Committee Co. (1920) Ltd. (1924) 1 K.B 171, 205, perLord Aktins. (2) Reg. v. Criminal Injuries Compensation board, Ex parte Lain (1967) 2Q.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 thetreatment of previous judicial dicta. Which were never intended to be exhaustive as ifthey were statutes. See also per Lord Roskill at p. 414 E-F emphasizing the evolutionarynature of the law on judicial review.Does the Panel on Take –overs and Mergers owe a public duty? One answers thisby 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 panelof a power to regulate transactions covered by the code. That power came through theBank of England and in the Joint Review Body through the Department of Trade and inthe Joint Review Body, through the Department of Trade and Industry. The Bank ofEngland 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 circumstancesit is impossible to say that the system established by the code operated by the panel hasnothing to do with the government.The role of the government in this area is emphasized by a recommendation of the E.E.CCommission in 1977 to the effect that governments should set up regulatory systems suchas that provided by the Code (2) Applying the consequences test: where a decision takenunder the system which has a public law character because it has consequences in apublic law field, measures taken include public law measures.Note references to consequences in Reg. v. Criminal Injuries Compensation Board, Exparte lain(1967) 2 Q.B. 864,884, and in O’Reilly v. Mackman (1983) 2 A.C 237. See alsoRex 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 code144

claims not to contain legal rules, it does have legal consequences and the power to makedecisions comes from the code and the rules.The function performed by the panel is a public law function: it is regulatory in a publicrather than a private sense, as can be seen from the way it operates and the consequencesof breach.Furthermore, any attempt to oust the jurisdiction of the courts by proclaiming the nonlegalnature of the code must be against public policyRobert Alexander Q.B. Timothy Lloyd Q.C. and Keith Rowley for the panel. Thequestion of the courts jurisdiction over the panel is important for all self regulatingbodies. The City is traditionally self regulating and remains substantially so, subject tothe Financial Services Act 1986. That Act does not expressly deal with the Panel onTake-overs and Mergers.In many cases of self regulation there may be a right to a remedy in private law, usuallyarising out of a contractual relationship. The absence of a public law jurisdiction does notnecessarily deprive persons affected of a remedy. For example where someone allegesthat the rules of a body as to its membership are in restraint of trade, it is open to him tobring 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 nojurisdiction in public law over that body.Self-regulation stems from a realization by a group that the regulation of theiractivities is desirable in the common interest That group accepts that rules for theperformance of functions and duties should be established and enforced.The success of self –regulation depends on (i) rules being drawn up by responsible andacceptable responsible bodies: (ii) the observance of those rules; (iii) respect for thedecisions of those bodies by these affected; (iv) those who operate in the marketaccepting that the rules and their obedience to them are essential as an aspect of enteringthe market at all. In assessing whether the rules provide sufficient protection it is right toremember that no one can survive in the market without the confidence of others and thatsuch rules ultimately serve the public interest.The Panel on Take- overs and Mergers in denying the jurisdiction of the court, isnot claiming a licence to take wrong decisions. The panel may be required to takedecisions swiftly and finally. When a ruling is asked for in the course of a bid it mayaffect the outcome of the bid before or after it has succeeded. If the latter then the shareswill already be traded under the new name. In the former case, if a dissatisfied partyrushes to court, it will have the effect of dislocating the market during a takeoversituation. However fast the court is able to act. If the panel is called to resolve a conflictbetween parties and their financial advisers, there is an overwhelming need fro speedyfinality. An application to the court may be made as a defensive measure during a bid, tocreate 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 DonaldsonM.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 toextend jurisdiction.The Code on Take-overs and Mergers already contains certain safeguards forthose affected by its decisions, including a right of appeal Where a party is affected byvirtue of their membership of the Stock Exchange they can rely on the contractualrelationship already existing to provide a private law remedy.The panel is only susceptible to judicial review if it satisfies the traditional criteriafor determining whether it is fulfilling a public duty. This depends on power; moreparticularly, the source of that power. To suggest, as do the applicants, that a body whosepower does not derive from a public source can still be subject to public law if itperforms a public law function with public law function with public law consequences, isto deny a fundamental aspect of public law. Moreover the fact that either the RestrictiveTrade Practices Act 1976 or the Restrictive Trade Practice (Service) Order 1976 refer toan agreement or recommendation or activity of another body does not render thefunctions of that body public law functions. The exempted agreements listed in Schedule3 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 (thepanel) not within the public law domain does not bring that third party into the public lawforum. In any case the Stock Exchange is only subject to public law by virtue of thoseregulations.The source of its power remains of critical importance to any determination as towhether a body is subject to judicial review. That source might lie in primary orsecondary 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 prerogativethrough a statutory instrument, then the source is such as to render it liable to judicialreview. Review might also lie if the Crown exercised its prerogative without a StatutoryInstrument. The applicants second (consequences) and third (function) tests represent anextension of the law because they enable review to take place without looking at thecritical 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 correcttest. Public law operates against those bodies which could be the subject of prerogativewrits. The Order 53 procedure has not expanded the scope of operation o public law inthe sense of having extended the category of bodies which could be subject to prerogativeorders In O’Reilly v. Mackman (1983) 2 A.C. 237, Lord Diplock observed that Order 3did not create new remedies but was essentially procedural. In Council of Civil ServiceUnions v. Minister for the Civil Service (1985) A.C. 374,408-409, Lord Diplock, settingour the types of action which were reviewable, emphasized throughout the importance ofthe 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 judicialreview should lie.The panel is performing a duty which it is in the public interest should beperformed, but it is not a public duty. It is a private duty, because Parliament in itswisdom has decided to leave this area subject to self- regulation. (Reference was made toLaw v. National Greyhound Racing Club Ltd (1983) 1 W.L.R 1302; Reg .v. EastBerkshire 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 tojudicial review where its decisions affect persons qua subjects of the realm. Such a bodymust be established by a governmental power: see, generally, Reg.v. Criminal InjuriesCompensation 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 reClifford 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.B118 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 sourceThe applications rely on a devolution of power through the Bank of England and theDepartment of Trade and Industry but the only statutory powers the Bank of England hasare the power to give directions to other banks (under the Bank of England Act 1946) andthe 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 isand has been the policy of governments to leave such institutions to self regulations. Theapplicants cannot rely on the fact that other bodies, such as the power to list or de-list orde-list stocks. Which apply the standards of the panel as making the panel subject tojudicial review. Finally, the applicants’ reliance on the function test runs counter to thedecision 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 thejudgment of Sir John Donaldson M.R..post. p. 839 D-H)Jonathan Sumption Q.C. and Stephen Richards for the interveners. It is against thepublic interest for decisions of the Panel on Take-overs and Mergers to be subject tojudicial review. As an essential component in a system of self-regulation. It is imperativethat the panel should be able to make decisions with absolute finality in view of thedamage otherwise done to the smooth operation of the market. If a party which isunsuccessful before the panel is able to apply for judicial review it will soon become adevice 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 discretionbeing exercised in favour of an applicant are slim indeed. An application for judicialreview is not an appeal. It is for the panel to hear and evaluate the evidence and to findthe relevant facts. The court can only interfere if there has been illegality (the panel hasmisdirected itself in law), irrationality (no reasonable panel could have reached such adecision) or procedural impropriety (failure by the panel to conform to the rulesgoverning its own conduct or to basic rules of natural justice)On the chronology to the take-over bid, once a bid goes unconditional as toacceptances (i.e acceptances exceed 50 per cent) it is undesirable that there be any147

substantial lapse of time before the bid goes unconditional in all respects. Otherwisethose who have already accepted the bid cannot trade their stock. A contract is formedbetween the offeror and each accepting shareholder from which neither can resile. It iscommon ground that in this case, the Norton Opax bid had gone unconditional as toacceptances. Once that happens, none of these contracts is conditional on the approval ofthe panel.The applicants make three basic complaints. First they allege that in breach of theCode on Take-overs and Mergers. Norton Opax failed to increase its offer toMcCorquodale shareholders, other than core sub-underwriters to reflect the increasedconsideration paid to core sub-underwriters and the parent company of the principal coresub-underwriter for the McCorquodale shares acquired by it from them. But Norton Opaxdid not pay any increased consideration for McMorquodale shares either to the core subunderwritersor indeed to anyone else.Under the terms of the underwriters agreements, the success of the bid have the core subunderwritersthe entitlement to an increased underwriting fee, but that was no part of theconsideration for the McCorquodale shares had been assented to Norton Opax bysomeone other than a core sub-underwriter. But in any case since this point was not put tothe panel it cannot be argued here.Secondly the applicants allege that in breach of the code the Kuwait InvestmentOffice (K.I.O) acted in concert with Norton Opax in that for whatever reasons they hadan agreement with Samuel Montagu & Co Ltd . Norton Opax’s merchant banker whichgave them an incentive to see that Norton Opax’s offer became unconditional and theydid so by purchasing shares at a price 12.2p in excess of the cash price offered by NortonOpax and by assenting those share to Norton Opax. Essentially this amounts to anallegation that an agreement which which gives underwriters an interest in the success ofthe bid makes the underwriter a concert party if he purchases shares in the targetcompany.But that does not come within the definition of “concert party” in the code and it is notfor the court to make it do so now.Thirdly the applicants allege that in view of the timing of and the price paid byK.I.O in their purchase of McCorquodale shares the fact that they were purchasedthrough one of the brokers to Norton Opax and the assenting of those shares to that oerthe panel cold not properly fail to conclude that K.I.O and Norton Opax were acting inconcert, unless it misdirected itself in law by erroneously assuming that in order tosupport such a finding it would have to have found that there had been communicationbetween 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’sexecutive; “Certain of (the core underwriters) met the management for the standardpresentation during the offer in the normal way but in fact K.I.O never met themanagement at all. The applicants assume from this first that the executive regarded that148

as conclusive of the absence of a concert party situation and secondly that the panel didlikewise. But it is clear from the affidavit evidence of Sir Jasper Hollom, chairman of thepanel, that the panel make no such error.The panel approached the matter on the assumption that for a “concert party” to existthere had to be an agreement or understanding between the parties, and in the absence ofcontact at the presentation meeting, evidence had to be found elsewhere to support such afinding. Such evidence, sufficient to satisfy the panel, was not adduced, who thereforeconcluded that K.I.O’s decision to purchase the shares was made for genuine investmentreasons 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 ifthe court had jurisdiction to intervene,it should not exercise its discretion in favour ofdoing so. But for the reasons given both on behalf of the interveners and previously onbehalf of the panel itself, the court has no jurisdiction to intervene and the applicationshould be refused.Lever in reply referred to Reg. v. Inland Revenue Commissioners Ex parteNational 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 LordDenning M.R; In re Clifford and O’Sullivan (1921) 2 A.C 570; Reg v. Criminal InjuriesCompensation 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, Exparte Byrne (1975) I.C.R. 221.The reality of the situation is that the self-regulation urged by the respondentsdoes not exist. The right of a man to offer to buy another’s property is restricted bystatutes such as the Fraud (Investment) Act 1958. He has to go through an authorisedperson or obtain the permission of the Department of Trade and Industry. Datafin cannotmake an offer except subject to the restrictions imposed. This strongly supports theconcept o implied devolution and the role of the function test which the applicants urgeupon the court. It is hollow to speak of self-regulation here; what we are discussing isclearly a public law. It must be a matter of deep concern to the courts if such a system canoperate 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 situationwill it be excluded from the public law jurisdiction. Even if there is a private lawrelationship in the present case, this decision was not taken in that context, so it is no barto 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 trulyremarkable body. Perched on the 20 th floor of the Stock Exchange building in the City ofLondon, both literally and metaphorically it oversees and regulates a very important part149

of the United Kingdom financial market. Yet it performs this function without visiblemeans of legal support.The panel is an unincorporated association without legal personality and, so far ascan be seen, has only about twelve members. But those members are appointed by andrepresent the Accepting Houses.Committee, the Association of Investment Trust Companies, the Association of BritishInsurance, the Committee of London and Scottish Bankers, the Confederation of BritishIndustry, the Council of the Stock Exchange, the Institute of Chartered Accountants inEnglish and Wales the Issuing Houses Association the National Association of PensionFund, the Financial Intermediaries Managers and Brokers Regulatory Association, andthe Unit Trust Association; the chairman and deputy chairman being appointed by theBank 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 contractualrelationship with the financial marker or with those who deal in that market. According tothe 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 wishto take advantage of the facilities of the securities markets in the United Kingdom shouldconduct themselves in matters relating to take-overs according to the code. Those whodo not so conduct themselves cannot expect to enjoy those facilities and may find thatthey withheld.The responsibilities described herein apply most directly to those who are activelyengaged in all aspects of the securities markets but they are also regarded by the panel asapplying to directors of companies subject to the code to persons or groups of personswho seek to gain control (as defined) of such companies and to all professionaladvisers(insofar as they advise on the transactions in question).Even where they are not directly affiliated to the bodies named in section (1)(a). equallywhere persons other than those referred to above issue circulars to shareholders inconnection 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 enunciatesgeneral principles are a codification of good standards of commercial behavior andshould have an obvious and universal application. On the other hand, the code lays downa series of rule some of which are no more than examples of the application of thegeneral principles whilst others are rules of procedure designed to govern specific formsof take-over. Some of theGeneral principles based as they are upon the concept of equity between one shareholderand another while readily understandable in the city and those concerned with thesecurities markets generally would not easily lend themselves to legislation.150

The code is therefore framed in non-technical language and is primary as a measure ofself-disciplineAdministered and enforced by the panel. A body representative of those using thesecurities markets and concerned with the observance of good business standards ratherthan the enforcement of the law as indicated above the panel executive is alwaysavailable to be consulted and where there is doubt this should be done in advance of anyaction. Taking legal or other professional advice on matters of interpretation under thecode 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 voluntarilyregulates his life in accordance with started principle because he believes that this ismorally right and also perhaps in his own long term interests or a group of individualswho do so are practicing self-regulation. But it can mean something quite different. Itcan connote a system whereby a group of people, acting in concert, use their collectivepower to force themselves and others to comply with a code of conduct of their owndevising. 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 dejure, It exercises immense power de facto by devising promulgating, amending andinterpreting the city code on take-overs and mergers by waiving or modifying theapplication of the code in particular circumstances, by investiagating and reporting uponalleged breaches of the code and by the application or threat of sanctions. These sanctionsare no less effective because they are applied indirectly and lack a legally enforceablebase. Thus to quote again from the introduction to the code.If there appears to have been a material breach of the code, the executive invitesthe person concerned to appear before the panel for a hearing. He is informed by letter ofthe 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 findsthat there has been a breach, it may have recourse to private reprimand or public censureor, in a more flagrant case to further action designed to deprive the offender temporarilyor 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 actionwill take place without the person concerned having the opportunity to appeal to theappeal committee of the panel.The unspoken assumption, which I do not doubt is a reality, is that the Department ofTrade and Industry or, as the case may be, the Stock Exchange or other appropriate bodywould 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 theseverest penalties, up to and including expulsion, for acts of misconduct and by rule 23.1151

“Acts o misconduct may consist of any of the following….(g) Any action whichhas been found by the Panel on Take-overs and Mergers (including where reference hasbeen made to it, the appeal committee of the panel) to have been in breach of the CityCode of Take-overs and Mergers. The findings of the panel, subject to any modificationby the appeal committee of the panel, shall not be re-opened in proceeding taken underrules 22 to 24.The principal issue in this appeal, and only issue which may matter in the longerterm, is whether this remarkable body is above the law. Its respectability is beyondquestion. So is its bona fides.I do not doubt for one moment that it is intended to and does operate in the public interestand that the enormously wide discretion which it arrogates to itself is necessary if it is tofunction efficiently and effectively. Whilst not wishing to become involved in thepolitical controversy on the relative merits of self-regulation and government or statutoryregulation, I am merits of self-regulation and government or statutory regulation ispreferable 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 financialmarkets and would be unable to continue to operate. Further or alternatively, Parliamentcould and would intervene Maybe, but how long would that take and who in themeantime could or would come to the assistance of those who were being oppressed bysuch conduct?A somewhat similar problem confronted the courts in 1922 when the Council ofthe Refined Sugar Association a self-regulatory body for the sugar trade and no lessrespectable than the panel, made a rule which purported to preclude any trader fromasking a trade arbitrator to state a case or the opinion of the court or from applying to thecourt for an order that such a case be stated. The matter came before a Court of Appealconsisting 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, becausethe 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 illustratedby brief quotations from the judgments. Bankers L.J said at p. 484:“To release real and effective control over commercial arbitration is to allow thearbitrator, or the artitration tribunal to be a law unto himself, or themselves to give him orthem a free hand to decide according to law or not according to law as he or they think fitin other words to be outside the law. At present no individual or association is, so far as Iam aware, outside the law except a trade union. To put associations as the Refined SugarAssociation in a similar position would in my opinion be against public policy. Unlimitedpower does not conduce to reasonableness of view or conduct.Scrutton L.J. said, at p. 488152

“In my view to allow English citizens to agree to exclude this safeguard for theadministration of the law is contrary to public policy. There must be no Alsatia inEngland 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 ofthe courts is invalid…..in the case of powerful associations such as the present able toimpose their own arbitration clauses upon their members and by their uniform contractconditions upon all non-members contracting with members the result might be that intime codes of law would come to be administered in various trades differing substantiallyfrom the English mercantile law. The policy of the law has given to the High Court largepowers over inferior courts for the very purpose of maintaining a uniform standard ofjustice and one uniform system of law…if an agreement to oust the common lawjurisdiction of the court is invalid every reason appears to me to exist for holding that anagreement 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 theparties other than the panel. This is not accidental but reflects the fact that the major issueof whether the courts of this country have any jurisdiction to control the activities of abody which de facto exercises what can only be characterized as powers in the nature ofpublic 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 areonly relevant to whether this is an appropriate case in which in accordance with suchgeneral principles to exercise any such jurisdiction. However I should now remedy thedeficiency.The applicants for relief by way of judicial review are Datafin Plc an Englishcompany and Prudential Bache Securities Inc of New York In addition there appear asinterveners. Norton Opax Plc and Samuel Montagu & Co. Ltd their merchant bankers andfinancial advisers both being English companies. Other members of the cast, albeit notparties to the proceedings are Greenwell Montagu & Co Ltd the stock broking arm ofSamuel Montagu: Laurence Prust, another stockbroker; the Kuwait Investment Office(K.I.O) a major investor in the United Kingdom financial market; and McCorquodalePlc., an English printing company, which was the target for the take-over bids whichprecipitated the present proceedings. I can take the background facts from the paperprepared by the executive of the panel.“2.1 In March 1986 Norton Opax made its original offer for McCorquodale, butthe offer lapsed in April on reference to theAlsatias. The colloquial name (which first appears in Shadwell’s plays in the time ofCharles 11) for recognized areas of sanctuary for criminals survivals of the mediaevalsanctuaries, which jested till the end of the 17 th century in London. The one which gaveits name to the others was Alsatia or Whitefriars, between Fleet Street and the Thamesbut the Southward Mint the Minories and other places were other convenient refuges forthieves”; see The Oxford Companion to law (1980),p 50153

Monopolies and Commission. On 24 September it was announced that the M.M.C hadconcluded that the acquisition would not operate against the public interest. Norton Opaxwas then free to proceed with its offer. 2.2 On 25 September 1986 Norton Opaxannounced its final offer for McCorquodate. The offer was two new Norton Opaxordinary shares for each McCorqodale ordinary share and at that time, valued eachMcCorqodale ordinary share at 290p. In addition there was an underwritten cashalternative o 260p per McCorquodale, advised by Kleinwort Benson, recommendedshareholders to reject the offer 2.3 On 1 November 1986 a competing offer wasannounced.The offeror was Datafin a new company formed by certain executive director andmembers of the management of McCorquodate and backed by a number of financialinstitutions led by Prudential Bache. The offer was 300p cash per McCorquodate share.Subsequently on 6 November 1986. Norton Opax announced an increased final offer ofseven new Norton Opax ordinary shares for every three McCorquodate shares valuingeach McCorquodate share (on the basis of Norton Opax’s share price at the time) at340.7p 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 2.4During the course of the offers Mr. Robert Maxwell acquired a substantial shareholdingin McCorquodate and by the time of the announcement of Datafin’s final offer held some22 percent. At that stage he undertook to commit his entire shareholding to NortonOpax’s offer on the basis that if it failed both his shareholding as to acceptances havingreceived acceptances representing 50.2 per cent of the share capital of McCorquodateAt the request of the executive, Norton Opax has agreed not to declare its offer fullyunconditional pending the result of this hearing.Both the alternative cash offers by Norton Opax were underwritten in a novel, butnot unprecedented, form, involving core underwriters and core sub-underwriters ascontrasted with traditional market underwriters. The executive reported:“Under these arrangements in outline, a number of potential sub-underwrites areidentified who are prepared to accept a lower commission If the offer fails, on the basisof a higher on if it is successful. This practice has recently developed and its rationale isapparent in the case of companies bidding for other larger than themselves where there isa 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 NortonOpax’s bid for McCorquodate Both core underwriters and market underwriters receive agreater commission if the bid is successful, but the difference is more marked in the caseof the core underwriters. Full details of the commission arrangements are set out inSamuel Montagu’s submission but they can be summarized as follows. (1) Marketunderwriters receive a commitment commission of per cent for each period of 7 days (orpart) in excess of 30 days (2) Core underwriters receive a commitment commission of percent increased to 1 per cent if the bid is successful. (3) Both market and core underwriter154

eceive a further ⅔ per cent based upon the value of Norton Opax shares allotted pursuantto the offer in respect of acceptances received up to the time cash alternative closes.Approximately 100 million Norton Opax shares were involved in the initialunderwriting on 25 September; of these K.I.O sub-underwrote some 11 million as coreunderwriter and 8 million as market underwriter. For the increased final offer announcedon 6 November some 89 million Norton Opax shares were underwritten K.I.O takingapproximately 11 million as core underwriter.In each case the proportion of shares underwritten by K.I.O was greater than that of othersub-underwriters although it is noteworthy that one other core sub-underwriters took 10million shares in the second underwriting. Moreover Greenwell Montagu have said thatK.I.O’s share was not disproportionately large, given that K.I.O are generally thegreatest participant in their underwriting list, owing to their substantial size.Consistently with the panel’s declared intention of doing equity between oneshareholder and another the code contains rules which prevent an offeror from buyingshares at prices higher than that contained in his offer without revising that offer upwardsto march those prices and which also prevent him increasing any offer which has beenmade 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 hisconduct his servants agents or those acting in collaboration with him remained whollyfree to take whatever action they thought fir. Accordingly the rules contain restrictionsupon the freedom of action of persons acting in concert with the offeror quaintly referredto as “concert parties”. They are “defined” in the rules as follows, although it should benoted that whilst part of the definition could be properly so described, the remainderinvolves a rebuttable presumption that certain parties fall within the definition:“Acting in concert“This definition has particular relevance to mandatory offers and further guidancewith regard to behaviour which constitutes acting in concert is given in the notes on rule9.1Person acting in concert comprise persons who pursuant to an agreement orunderstanding (whether formal or informal), actively co-operate, through the acquisitionby 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 concertwith other persons in the same category unless the contrary is established: - (1) acompany, 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 capitalof a company is regarded as the test of associated company status); (2) a company withany of its directors (together with their close relatives and related trusts): (3) a companywith any of its pension funds; (4) a person with any investment company, unit trust orother person whose investments such person manages on a discretionary basis; (5) a155

financial adviser with its client in respect of the shareholdings of; (a) the financialadviser; and (b) all the investment accounts which the financial adviser manages on adiscretionary basis, where the percentage of the client’s equity share capital held by thefinancial 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 tobelieve 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 willbe necessary for clear evidence to be presented to the panel before it can be accepted thatthe position no longer obtains.”It is common ground that Datafin and Prudential-Bache, as the leading financialbacker of Datafin’s bid, are concert parties. According neither could seek to obtainfurther shares in McCorquodale at a price is excess of 315p cash per share, the figure putforward in Datafin’s final offer.It is also common ground that Norton Opax and Laurence Prust/Greenwell Montagu thetwo brokers to the offer whilst acting as such were concert parties, as were Norton Opaxand Samuel Montagu their merchant bankers. So too were K.I.O and Greenwell Montaguwhen acting on their behalf, but K.I.O was subject to no relevant restrictions under therules, 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 Opaxwere concert parties and that K.I.O had acted in breach of the code in authorizingGreenwell Montagu to buy some 2.4 million McCorquodale share on its behalf from SunLife Assurance Society Plc. (“Sun Life”) as a price of 315.5p on 17 November 1986immediately after Datafin had made a final offer of 315p and in assenting those shares toNorton Opax’s offer.The basic facts upon which this charge was founded were as follows. (a) K.I.Ohad a significant interest in the Norton Opax bid being successful, since, in that eventunder the core underwriting arrangement it would be paid about £350,000 inunderwriting 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 beingsub-underwriters. (c) The purchase of the Sun Life shares was suggested to K.I.O byGreenwell Montagu, one of the joint brokers to the Norton Opax bid (d) K.I.O assentedthe shares to the Norton Opax bid. (e) K.I.O could have bought McCorquodale shares onthe market at a price below 315.5p per share before the final Datafin offer was made at315p per share and at a time when Datafin might thereby have been induced to raise itsearlier bid, but failed to do so.On these facts Datafin and Prudential-Bache concluded that there must have beensome agreement or understanding (formal or informal) between Norton Opax and K.I.Oactively to co-operate through the acquisition of shares in McCorquodale in order toobtain control of that company. They further contended that K.I.O as a concert party withNorton Opax had offered Sun Life more than 303.3p per share the Norton Opax cash156

alternative and that, reading the underwriting agreement and the offer together, NortonOpax had agreed to acquire the ex-Sun Life McCorquodale shares from K.I.O at a priceexcess of that on offer to other shareholders in McCorquodale, since the assent of theseshares tipped the balance in favour of the success of the bid and entitled K.I.O to a bonusof the additional underwriting fee.This complaint against Norton Opax and K.I.O was put to the panel andconsidered 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 beregarded as acting in concert, it must be established that there is an agreement orunderstanding which provides for active co-operation between them; that such cooperationincludes the purchasing of McCorquodale shares by one of them; and that anysuch purchasing is for the purpose of obtaining and consolidating code control ofMcCorquodate. 6.2 To reach a conclusion of acting in concert, the executive considersthere should be evidence that leads to that conclusion or circumstances must be such thatit should on balance be inferred that the relevant parties were acting in concert. In thiscase the executive has no reason to doubt the facts and statements of intentions asrecounted by representative of Norton Opax. Greenwell Montagu, Laurence Prust andK.I.O.The fact that people may act with similar intentions or that someone may purchase furthershares with a view to becoming a substantial shareholder in the offeror will not ofthemselves amount to evidence of a concert party 6.3 K.I.O is one of the most substantialinvestment institutions, in this country. For this reason it is generally offered a large sharein underwritings by brokers, and deals with Greenwell Montagu on this basis.The particular type of underwriting arrangement entered into in connection with theNorton 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 daythe offers were announced, did not know each other’s identity and received no specialpresentation Certain of them met the management for the standard presentation during theoffer 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 provideevidence of any agreement or understanding providing for active co-operation betweenK.I.O and Norton Opax for the purpose of obtaining control of McCorquodale. Theexecutive has discussed the subsequent purchases of McCorquodale shares with K.I.O Asstated above, K.I.O , have said that the purchase of McCorquodale shares was seensimply as an opportunity for acquiring a significant interest in the combined Norton OpaxMcCorquodale group and was motivated solely by investment criteria. The executive seeno reason to doubt K.I.O’s motives in this respect. The fact that K.I.O sought to become asubstantial shareholder in the combined group cannot of itself give rise to a presumptionof 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 eventthat the Norton Opax offer lapsed was therefore minimal since it would be able to realize315p in accepting the Datafin offer.157

The executive has also discussed the purchases with the other investment institutionsinvolved; again in each case the executive has been assured that the purchases were madesolely with a view to investing in the combined group. 6.4 In conclusion the executive isof the offer has there been any agreement or understanding between K.I.O and NortonOpax 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’sruling the executive recommends that Norton Opax should be released from itsundertaking not to declare the offer wholly unconditional 7.2 If the panel were to take thecontrary view to the executive it would be necessary to address the question of how todeal 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 beproblematic; as has been stated above, since the offer was expressed to be final, it couldbe argued that a concert party should not enable the offeror to increase his offer when hewould otherwise be precluded from doing so. On the other hand to require the bid tolapse might be equally inappropriate.The complaint was futher considered by the panel itself which also heard evidence. Ifdismissed the complaint the chairman saying:“The panel have carefully considered the evidence laid before them in this case and Ihave to tell you that they are not convinced that a concert party did exist in code terms inthis 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 – coreunderwriting arrangements in circumstances such as these and they would wish to add arider to the effect that the gearing effects core underwriting arrangements have could intheir view, in particular circumstances, in particular cases, be such as to contributeappreciably towards the creation of a presumption of concerted action, and that,therefore, in cases where core underwriting arrangements are involved those concernedshould have particular regard to the possibility of their being held, in the light of all thecircumstances in a particular case, to be in concert. And they would further add that insuch circumstances where there is core underwriting involved, one of the circumstanceswhich would further intensify the degree of investigation which would be implied wouldbe the act of purchases above the bid price.It is not of course to be seen as exclusively a feature that would necessarily be broughtinto examination; but the existence of purchases above the bid price is naturally onewhich would intensify the degree o examination which would be appropriate in suchcases. It will clearly, I think, be apt for the panel to issue a statement as soon as we cando so giving the announcement that a hearing on this subject has been held, that a concertparty has not been found to exist and carrying also the rider points that I havementioned.”158

On the morning of 25 November 1986 Datafin and Prudential- Bache soughtleave from Hodgson J. to apply for judicial review of the panel’s decision and forconsequential relief. The judge refused the application without giving reasons, whilstindicating that in his view the court had no jurisdiction.The application was renewed to this court that afternoon and we began the hearing atonce. In the course of the argument we decided to give leave and further determined tohear the substantive application ourselves. We gave leave because the issue as tojurisdiction seemed to us to be arguable and of some public importance and we retainedscission 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 thepanel susceptible to judicial review? “This is the jurisdiction” issue(b) If so how inprinciple is that jurisdiction to be exercised given the nature of the panels activities andthe fact that it is an essential part of the machinery of a market in which time is money ina very real sense:? This might be described as the practical” issue (c) If the jurisdictionalissue is answered favourably to the applicants is this a case in which relief should begranted and if so in what form?As the new Norton Opax ordinary shares have been admitted to the Official StockExchange List and so can be traded subject to allotment any doubt as to the outcome ofthe present proceedings could effect the price at which these shares are or could be tradedand thus the rights of those entitled to trade in them.Accordingly we thought it right to announce at the end of the argument that theapplication for judicial reaching this conclusion by considering the three issues in theorder in which I have set them out.The jurisdictional issueAs I have said, the panel is a truly remarkable body, performing its functionwithout visible means of legal support. But the operative word is “visible” althoughperhaps I should have used the word “direct.” Invisible or indirect support there is inabundance. Not only is a breach of the code, so found by the panel, ipso facto an act ofmisconduct by a member of the Stock Exchange, and the same may be true of otherbodies represented on the panel, but the admission of shares to the Official List may bewithheld in the event of such a breach.This is interesting and significant for listing of securities is a statutory function performedby 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 doesnot stop there, because in December 1983 the Department of Trade and Industry made astatement explaining why the Licensed Dealers (Conduct of Business) Rules 1983 (S.I1983 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 thefollowing paragraphs set out the provisions as regards public companies and private159

companies respectively. 2. As regards public companies (as well as private companieswhich have had some kind of public involvement in the ten years before the bid) thedepartment considers it better to rely on the effectiveness and flexibility of the City Codeon Take-overs and Mergers which covers bids made for public companies and certainprivate companies which have has some past public involvement.The City code has the support of and can be enforced against professional securitydealers and accordingly the department expect as a matter or course that those makingbids for public companies (and private companies covered by the code) to use theservices 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 arecognised association) in which case the Secretary of State’s permission for thedistribution of take-over documents is not required.This is seen as an important safeguard for the shareholders of the public company (ofwhich there may be several hundreds or thousands) and as a means of ensuring that suchtake-overs are conducted properly and fully in accordance with the provisions of the Citycode. It would only be in exceptional cases that the Secretary of Secretary of State wouldconsider removing this safeguard by granting permission under section 14(2) of the Actfor 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 besupported and sustained by a periphery of statutory powers and penalties wherever nonstatutorypowers and penalties were insufficient or non-existest or where E.E.Crequirements called for statutory provisions.No one could have been in the least surprised if the panel had been instituted andoperated under the direct authority of statute law, since it operates wholly in the publicdomain. Its jurisdiction extends throughout the United Kingdom. Its code and rulingsapply equally to all who wish to make take-overs bids or promote mergers, whether ornot they are members of bodies represented on the panel. Its lack of a direct statutorybase is a complete anomaly, judged by the experience of other comparable markets worldwide.The explanation is that it is an historical “happenstance,” to borrow a happy term fromacross the Atlantic. Prior to the years leading up to the “Big Bang” the City of Londonprided itself upon being a village community, albeit of an unique kind, which couldregulate itself by pressure of professional opinion. As government increasingly acceptedthe 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 inwhich central government has incorporated the panel into its own regulatory networkbuilt up under the Prevention of Fraud (Investments) Act 1958 and allied statutes such asthe Banking Act 1979.160

The issue is thus whether the historic supervisory jurisdiction of the Queen’scourts extends to such a body discharging such functions including some which arequasi-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 orthe exercise of the prerogative. Mr Level for the applicants, submits that this is toonarrow a view and that regard has to be had not only to the source of the body’s powerbut also to whether it operates as an integral part of a system which has a public lawcharacter is supported by public law in that public law sanctions are applied if its edictsare ignored and performs what might be described as public law functions.In Reg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2Q.B.864.882. lord Parker C.J. who had unrivalled experience of the prerogative remediesboth on the Beach and at the Bar said that the exact limits of the ancient remedy ofcertiorari had never been and ought not to be specifically defined. I respectfully agree andwill 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 tostatutory tribunals determining a lis inter partes. Later again it extended to cases wherethere was no lis in the strict sense of the word but where immediate or subsequent rightsof a citizen were affected. The only constant limits throughout were that it wasperforming a public duty. Private or domestic tribunals have always been outside thescope of certiorari since their authority is derived solely from contract, that is from theagreement of the parties concerned …We have as it seems to me reached the position when the ambit of certiorari can be saidto cover every case in which a body of persons of a public as opposed to a purely privateor domestic character has to determine matters affecting subjects provided always that ithas a duty to act judicially. Looked at in this way the board in my judgment comes fairlyand squarely within the jurisdiction of this court. It is as Mr Bridge said, a servant of theCrown charged by the Crown, by executive instruction with the duty of distributing thebounty 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 tosupervise the exercise of their jurisdiction by inferior tribunals has not in the past beendependent upon the source of the tribunals authority to decide issues submitted to itsdetermination, except where such authority is derived solely from agreement of parties tothe determination. The latter case alls within the field of private contract and thus withinthe ordinary civil jurisdiction of the High Court supplemented where appropriate by itsstatutory jurisdiction under the arbitrations acts.161

The earlier history of the write of certiorari shows that it was issued to courts whoseauthority was derived from the prerogative from Royal Charter, from franchise or customas well as from Act of Parliament. Its recent history shows that as new kinds of tribunalshave been created, orders of certiorari have been extended to them too and toe all personswho under authority of the Government have exercised quasi-judicial functions. Truesince the victory of Parliament in the constitutional struggles of the 17 th century authorityhas been generally if not invariably, conferred upon new kinds of tribunals by or underAct of Parliament and there has been no recent occasions for the high court to exercisesupervisory jurisdiction over persons whose ultimate authority to decide matters isderived from any other source. But I see no reason for holding that the ancientjurisdiction of the Court of Queen’s Bench has been narrowed merely because there hasbeen no occasion to exercise it.If new tribunals are established by acts of government the supervisory jurisdiction of theHigh Court extends to them if they possess the essential characteristics upon which thesubjection 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 beone 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 ina liabilities of a person to whom it relates. It is not even essential that the determinationmust have that result, or there may be some subsequent condition to be satisfied beforethe 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 parteKeasley (1939) 2 K.B 615). Is there any reason in principle why certiorari should not liein respect of a determination, where the subsequent condition which must satisfied beforeit can affect any legal rights or liabilities of a person to whom it relates is the exercise infavour of that person of an executive discretion as distinct from a discretion which isrequired to be exercised judicially?”Ashworth J., who like Lord Parker C.J had served as junior counsel to the Trearury andas 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 andalthough a tribunal constituted as the board, has not been the subject of consideration ordecision by this court in relation to an order of certiorari, I do not think that this courtshould shrink from entertaining this application merely because the board had nostatutory origin.It cannot be suggested that the board had unlawfully usurped jurisdiction; it acts withlawful authority, albeit such authority is derived from the executive and not from an Actof Parliament. In the past this court has felt itself able to consider the conduct of aminister when he is acting judicially or quasi-judicially and while the present case myinvolve an extension of relief by way of certiorari I should not feel constrained to refusesuch relief if the facts warranted it,”162

The Criminal Injuries Compensation Board, in the form which it then took, wasan administrative novelty. Accordingly it would have been impossible to find a precedentfor 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 ajurisdiction 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 dutyto 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 inGillick v. West Norfolk and Wisbech Area Health Authority (1986) A.C 112. where LordFraser of Tullybelton, at p. 163F and Lord Scarman at p. 178F – H expressed the viewobiter that judicial review would extend to guidance circulars issued by department ofstate without any specific authority. In all the reports it is possible to find enumerations offactors giving rise to the jurisdiction, but it is a fatal error to regard the presence of allthose factors as essential or as being exclusive of other factors. Possibly the only essentialelements are what can be described as a public element which can take many differentforms, and the exclusion from the jurisdiction of bodies whose sole source of power is aconsensual submission to its jurisdiction.In fact given its novelty the panel fits surprisingly well into the format which thiscourt had in mind in the Criminal Injuries Compensation Board case. It is without doubtperforming a public duty and an important one. This is without doubt performing a publicduty and an important one. This is clear from the expressed willingness of the Secretaryof State for Trade and Industry to limit legislation in the field of take-overs and mergersand to use the panel as the centerpiece of his regulation of that market. The rights ofcitizens are indirectly affected by its decisions, some, buy by no means all of whom, mayin a technical sense be said to have assented to this situation, e.g the members of theStock Exchange. At least in its determination of whether there has been a breach of thecode, it has a duty to act judicially and it asserts that its raisin d’etre is to do equitybetween one shareholder and another. Its source of power is only partly based upon moralpersuasion and the assent of institutions and their members, the bottom line being thestatutory powers exercised by the Department of Trade and Industry and the Bank ofEngland. In this context I should be very disappointed if the courts could not recognisethe realities of executive power and allowed their vision to be clouded by the subtlety andsometimes complexity of the way in which it can be exerted.Given that it is really unthinkable that, in the absence of legislation such as actstrade unions, the panel should go on its way cocooned from the attention of the courts indefence of the citizenry, we sought to investigate whether it could conveniently becontrolled by established forms of private law, e.g torts such as actionable combinationsin restraint of trade, and to this end, pressed Mr. Lever to draft a writ Suffice it to say thatthe result was wholly unconvincing and not surprisingly, Mr. Alexander did not admitthat it would be in the least effective.163

In reaching my conclusion that the court has jurisdiction to entertain applicationsfor the judicial review of decisions of the panel, I have said nothing about the substantialarguments 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 beexercised and to that I now turn.The practical issueMr Alexander waxes eloguent upon the disastrous consequences of the courthaving and exercising jurisdiction to review the decisions of the panel and hissubmissions deserved and have received very serious consideration. In a skeleton he putit this way;Even if, which is not accepted there is an apparent anomaly for an inability to challenge apatently wrong decision which may have important consequences countervailingdisadvantages would arise if make which were unmeritorious.The fact that the court could dismiss such applications does not prevent their having asubstantial act in dislocating the operation of the market during the tendency ofproceeding 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 thepossibility of action rather than at the subsequent stage when the court comes to exerciseits 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 speedand certainty; they may be given in the middle of a bid, and they clearly may affect theoperation of the market, and even short-term dislocation could be very harmful. Thepresent case illustrates the uncertainty within the market which can be created by themere bringing of an application. The issue is important for self-regulation as a whole. Itwould create uncertainty if it were to be said that each self-regulating body were to beconsidered in the context of the entire factual background of its operation, and of thepeculiar features of the take-over panel which made it susceptible to judicial review. Ifwould obviously have wide ranging consequences if there were general statements thatself-regulating bodies carrying out important functions were susceptible to judicialreview.”I think hat it is important that all who are concerned with take-over bids sholdhave well in mind a very special feature of public law decisions, such as those of thepanel, namely that however wrong they may be however lacking in jurisdiction they maybe they subsist and remain fully effective unless and until they are set aside by a court ofcompetent jurisdiction.Furthermore the court has an ultimate discretion whether to set them aside and mayrefuse to do so in the public interest notwithstanding that it holds and declares thedecision to have been made ultra: see, for example. Reg v. Monopolies and MergersCommission, Ex parte Argyll Group Plc (1986) 1 W.L.R 763. That case also illustratesthe awareness of the court of the special needs of the financial market for speed on the164

part of decision – makers and for being able to rely upon those decisions as a sure basisfor dealing in the market. It further illustrates an awareness that such decision affect avery wide public which will not be parties to the dispute and that their interests have to betaken 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 evenpossible to apply for relief until leave has been obtained. The purpose of this provisionwas explained by Lord Diplock in Reg. v. Inland Revenue Commissioners. Ex parteNational 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 appliedpreviously to applications for prerogative orders though not to civil actions forinjunctions or declarations. Its purpose is to prevent the time of the court being wasted bybusybodies with misguided or trivial complaints of administrative error, and to removethe uncertainty in which public officers and authorities might be left as to whether theycould safely proceed with administrative action while proceedings for judicial review ofit were actually pending even though misconceived.”In many cases of judicial review where the time scale is far more extended than inthe financial markets, the decision maker who learns that someone is seeking leave tochallenge his decision may well seek to preserve the status quo meanwhile and, inparticular, may not seek to enforce his decision pending a consideration of the matter bythe court. If leave is granted, the court has the necessary authority to make ordersdesigned to achieve this result, but usually the decision – maker will give undertakings inlieu.All this is but good administrative practice. However, against the background of the timescales of the financial market, the courts would not expect the panel or those who shouldcomply with its decisions to act similarly. In that context the panel and those affectedshould 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 becomeaware, since to do otherwise would enable such applications to be used as a mere ploy intake-over battles which would be a serious abuse of the process of the court and could notbe adequately penalised by awards of costs.If this course is followed and the application for leave is refused, no harm willhave been done. If the application is granted, it will be for the court to decide whether tomake any and, if so, what orders to preserve the status quo. In doing so it will have regardto the likely outcome of the proceedings which will depend partly upon the facts as theyappear from the information at that time available to the court, but also in part upon thepublic administrative purpose which the panel is designed to serve. This is somewhatspecial.165

Consistently with its character as the controlling body for the self-regulation oftake-overs and mergers, the panel combines the functions of legislator, court interpretingthe panel’s legislation, consultant, and court investigating and imposing penalties inrespect of alleged breaches of the code. As a legislator it sets out to lay down generalprinciples, on the lines of E.E.C legislation rather than specific prohibitions which thosewho are concerned in take-over bids and mergers can study with a view to detecting andexploiting loopholes.Against that background there is little scope for complaint that the panel haspromulgated rules which are ultra vires, provided only that they do not clearly violate theprinciple proclaimed by the panel of being based upon the concept of doing equitybetween one shareholder and another. This is a somewhat unlikely eventuality.When it comes to interpreting its own rules it must clearly be given considerablelatitude both because as legislator it could properly alter them at any time and because ofthe form which the rules take. i.e. laying down principles to be applied in spirit as muchas in letter in specific situations. Where there might be a legitimate cause for complaintand for the intervention of the court would be if the interpretation were so far removedfrom the natural and ordinary meaning of the words of the rules that an ordinary user ofthe market could reasonably be misled. Even then it by no means follows that the courtwould think it appropriate to quash an interpretative decision of the panel. It might welltake the view that a more appropriate course would be to declare the true meaning of therule 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 theoverriding obligation to seek, if not necessarily to achieve, equity between oneshakeholder and another. Again I should be surprised if the exercise of this power couldbe attacked, save in wholly exceptional circumstances and, even then, the court mightwell 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 rulesproved, there is an internal right of appeal which, in accordance with establishedprinciples, must be exercised before, in any ordinary circumstances, the court wouldconsider intervening. In a case, such as the present, where the complaint is that the panelshould have found a breach of the rules, but did not do so, I would expect the court to beeven more reluctant to move reluctant to move in the absence of any credible allegationof lack of bona fides. It is not for a court exercising a judicialReview jurisdiction to substitute itself for the fact- finding tribunal and error of law in theform of finding of fact for which there was no evidence or in the form of a misconstructionof the panel’s own rules would normally be a matter to be dealt with by adeclaratory judgement. The only circumstances in which I would anticipate the use of theremedies 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.166

Nothing that I have said can fetter of is intended to or should be construed as fettering thediscretion of any court to which application is made for leave to apply for judicial reviewof a decision of the panel or which leave having been granted is charged with the duty ofconsidering such an application.Nevertheless, I wish to make it clear beyond a peradventure that in the light of the specialnature of the panel, its functions the market in which it is operating the time scales whichare inherent in that market and the need to safeguard the position of third parties whomay be numbered in thousands all of whom are entitled to continue to trade upon anassumption of the validity of the panel’s rules and decisions unless and until they arequashed by the court. I should expect the relationship between the panel and the court tobe historic rather tan contemporary decisions to take their course considering thecomplaint and intervening if at all later and in retrospect by declaratory orders whichwould enable the panel not to repeat any error and would relieve individuals of thedisciplinary consequences of any erroneous finding of breach of the rules. This wouldprovide a workable and valuable partnership between the courts and the panel in thepublic interest and would avoid all of the perils to which Mr. Alexander alluded.The reasons for rejecting this applicationThere was some failure on the part of the applicants to appreciate or at least to actin recognition of the fact that an application for judicial review is not an appeal. Thepanel and not the court is the body charged with the duty of evaluating the evidence andfinding the facts.The role of the court is wholly different. It is, in an appropriate case, to review thedecision of the panel and to consider whether there has been illegality,” i.e whether thepanel has misdirected itself in law; “irrationality”i.e whether the panel’s decision is sooutrageous in its defiance of logic or of accepted moral standards that no sensible personwho 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 rulesgoverning its conduct or a failure to observe the basic rules of natural justice, which isprobably better described as “fundamental unfairness,” since justice in nature isconspicuous by its absence. If authority be required for proposition which are so wellestablished it is to be found in the speech of Lord Diplock in Council of Civil ServiceUnions 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 weregiven leave to amend their grounds of application. As so amended, they made threecomplaints of breaches of the code and of the panel’s failure so to find. (a) In breach ofthe code, Norton Opax failed to increase its offer to McCorquodale shareholders, otherthan core sub- underwriters and the parent company of the principal core sub-underwriterfor the McCorquodale shares acquired by it from them. (b) In breach of the code, K.I.Oacted 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 bankerwhich gave them an incentive to procure that Norton Opax offer should become167

unconditional and they did so procure by purchasing shares at a price 12.2p in excess ofthe 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, thefact that they were purchased through one of the brokers to Norton Opax’s offer and theassenting of those shares to that offer, the panel could not properly have failed to find thatK.I.O and Norton Opax were concert parties unless it misdirected itself in law in theerroneous belie that a finding that there was communication between Norton Opax andK.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 anincreased consideration for Mc Corquodale shares to cove sub-underwriters or anyoneelse. The success of the bid brought with is an entitlement on the part of the core subunderwritersto be paid an increased underwriting fee but this was not part of theconsideration for Mc Corquodale shares. It would have been payable to core subunderwritersif the same shares had been assented to Norton Opax by someone other thana core sub-underwriter. Furthermore, this point is not open since it was not argued beforethe panel.Complaint (b) essentially amount to an allegation that an agreement which givesunderwriters an interest in the success of a bid makes the underwriter a concert party if hepurchases 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 matterfor the panel and not for the court.Complaint (c ) is no doubt based upon the sentences in paragraph 6.3 of thereport of the panel’s executive, which I have already quoted reading; “Certain of ( thecore underwriters ) met the management for he standard presentation during the offer inthe normal way but in fact K.I.O never met the management at all. “ Two assumptionsare then made, namely that the executive regarded this as conclusive of the absence of aconcert party situation and that the panel did likewise.We have in the event had the advantage of affidavit evidence from the chairman whichmakes it clear that the panel made no such error. He has deposed that the panelapproached the matter on the basis of he definition of “concert party” which requires afinding of an agreement or understanding.It did not regard the fact that there was no contact between K.I.O and Norton Opax as anabsolute bar to a finding of concerted action but rightly appreciate that, in the absence ofsuch contact, sufficient evidence to support an agreement or understanding had to befound elsewhere if such a finding were to be mad. There was no such evidence or nonesufficient to satisfy the panel and the evidence as a whole satisfied it that K.I.O’sdecisions to purchase the shares was made for genuine investment reasons whichexplained both the purchase and when it was made.Whilst this is more than sufficient to dispose of complaint (c) the chairman’s longdetailed and helpful affidavit well illustrates the need for the court to avoid168

underestimating the extent tot which expert knowledge can negative inferences whichmight otherwise be drawn from a partial knowledge of the facts and the extent to which agreater knowledge of the facts can make a decision which at first might seem faintlysurprising, not only explicable, but plainly right. Thus the panel from its expertise knewthat no significance should be attached to the bare fact that K.I.O used GreenwellMontagu as their brokers since.“It is common for an investor who wishes to buy shares for which an offer is currect touse one of the brokers to the offer because that broker’s knowledge of the market duringsuch period is likely to be particularly good. Brokers to an offer are regarded as free tocontinue their general broking business with other parties throughout the offer thoughthey must be careful about disclosure of information.”Again the panel heard evidence from other institution purchasers of Mc Corquodaleshares who bought at the same time and at substantially the same price as K.I.O one ofwhom was not a core sub-underwriter and could therefore only have been influenced byreinvestment 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 jurisdictionthis is not a case in which leave to apply should ever have been given. All that could besaid at that stage was that there was a case for considering whether the advent of coreunderwriting 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 wasa reputable presumption of concerted action.That was plainly a matter for the panel which was minded to add a rider to its decisionpointing to the fact that core underwriting arrangement might be subjected to closescrutiny particularly where they were associated with market purchases above the level ofcash offer.The fact that the panel’s conclusion might at first have appeared surprising to someonewho was not in day to day contact sith the financial markets and who had heard none ofthe 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 SirJohn Donaldson M.R. I add only a few words on the important question whether thePanel on Take-overs and Mergers is a body which is subject to judicial review. In myjudgment it is.There have been a number of cases since the decision of the House of Lords InO’Reilly v. Mackman (1983) 2 A.C 237 in which it has been necessary for the courts toconsider 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 beensaid, deprived the defendant of the special protection afforded by R.S.C Ord. 53.169

The formalism thus introduced into our procedure has been the subject of strong criticismthus introduced into our procedure has been the subject of strong criticism by Sir PatrickNeill 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 plaintiffis seeking a remedy in public law. It is the defendant who asserts that the plaintiff remedyin 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 castaway the protection afforded by R.S.C ., Ord. 53 in the hope perhaps that the panel mayin 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. Onthe level of pure policy he submits that it is undesirable or decisions or rulings of thepanel to be reviewable. The intervention of the court would at best impede at worstfrustrate the purposes for which the panel exists. Secondly on a more technical level hesubmits that to hold that the panel is subject to the supervisory jurisdiction o the HighCourt 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 theword “self regulating” No doubt self –regulation has many advantages. But I was unableto see why the mere fact that a body is self-regulating makes it less appropriate forjudicial review. Of course there will be many self regulating bodies which are whollyinappropriate for judicial review.The committee of an ordinary club affords an obvious example. But the reasons why aclub is not subject to judicial review is not just because it is self- regulating. The panelwields ecormous power. It has a giant’s strength.The fact that it is self- regulating, which means, presumably, that it is not subject toregulation by other, and in particular the Department of Trade and Industry, makes it notless 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 itlike a giant. Nobody suggests that there is any present danger of the panel abusing itspower. But it is at least possible to imagine circumstances in which a ruling or decision ofthe panel might give rise to legistimate complaint. An obvious example would be if itreached 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 acomplainant has no right to appeal where the decision is that there has been no breach ofthe code. Yet a complaint is just as much entitled to natural justice as the companyagainst whom the complaint is made.Nor is it any answer that a company coming to the market must take it as it findsit. The City is not a club which one can join or not at will. In that sense, the word “self-170

egulation” may be misleading. The panel regulates not only itself, but all others whohave 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 Iaccept that submission. I accept also the possibility the unmeritorious applications will bemade from time to time as a harassing or delaying tactic. It would be up to the court toensure that this does not happen. These considerations are all very relevant to the exerciseof the court’s discretion in particular cases. They mean that a successful application forjudicial review is likely to be very rare. But they do not mean that we should declinejurisdiction altogether.So long as there is a possibility, however remote, of the panel abusing its greatpowers then it would be wrong for the courts to abdicate responsibility. The courts mustremain ready, willing and able to hear a legitimate complaint in this as in any other fieldof our national life.I am not persuaded that this particular field is one in which the courts do not belong orfrom which they should retire, on grounds of policy. And if the courts are to remain in thefield, then it is clearly better, as a matter of policy, that legal proceedings should be in therealm of public law rather than private law, not only because they are quicker,but alsobecause the requirement of leave under R.S.C..Ord 53 will exclude claims which areclearly unmeritorious.So I turn to Mr. Alexander’s more technical argument. He starts with the speechof 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 beempowered by public law (and not merely, as in arbitration, by agreement betweenprivate parties) to make decisions that, if validly made, will lead to administrative actionor abstention from action by an authority endowed by law with executive powers, whichhave one or other of the consequences mentioned in the preceding paragraph.The ultimate source of the decision – making power is nearly always, nowadays a statuteor subordinate legislation made under the statute; but in the absence of any statuteregulating the subject matter of the decision the source of the decision-making powermay still be the common law itself, i.e, that part of the common law that is given bylawyers the label of the prerogative.Where this is the source of decision-making power, the power is confined to executiveofficers of central as distinct from local government and in constitutional practice isgenerally 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 is171

the source of its power, and (ii) that there has been no case where that source has beenother 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 tojudicial review, nor do I so read Loserd Diplock’s speech. Of course the source of thepower will often, perhaps usually be decisive. If the source of power is a stature orsubordinate legislation under a statute then clearly the body in question will be subject tojudicial review. If at the other end of the scale, the source of power is contractual, as inthe 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 (DisputesCommittee). Ex parte Neate (1953) 1Q.B 704.But in between these extremes there is an area in which it is helpful to look notjust at the source of the power but at the nature of the power. If the body in question isexercising public law functions or if the exercise of its functions have public lawconsequences then that may as Mr.Lever submitted, be sufficient to bring the body withinthe reach of judicial review. It may be said that to refer to “public law” in this context isto beg the question.But I do not think it does. The essential distinction which runs through all the cases towhich we referred is between a domentic or private tribunal on the one hand and a bodyof persons who are under some public duty on the other. Thus in Reg. v. CriminalInjuries Compensation Board. Ex parte Lain (1967) 2 Q.B 864 Lord Parker C.J., aftertracing the development of certiorari from its earliest days, said, at p. 882:“The only constant limits throughout were that (the tribunal) was performing apublic duty. Private or domestic tribunals have always been outside the scope ofcertiorari since their authority is derived solely from contract that is, from theagreement of the parties concerned.”To the same effect is a passage from a speech of Lord Parker C.J in an earlier case, towhich 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 arbitraltribunal but that in effect it is undertaking a public duty or a quasi-public duty and assuch 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 notthink 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, inthose circumstances, I see no jurisdiction in this court to issue an order of mandamus tothe industrial court.”172

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 therelief sought was an injunction under R.S.C, Ord. 53, r. 1(2). The case was brought by anemployee 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 anorder for mandamus, prohibition or certiorari could be granted. It merely requires that thecourt should have regard to the nature of the matter in respect of which such relief maybe granted.However although applications for judicial review are not confined to those cases whererelief 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 forjudicial review is confimed to reviewing activities of a public nature as opposed to thoseof a purely private or domestic character. The disciplinary appeal procedure set up by thethe applicant and the B.B.C. and therefore it is a procedure of a purely private ordomestic character.”So I would reject Mr. Alexander’s argument that the sole test whether a body issubject to judicial review is the source of its power. So to hold would in my judgmentimpose an artificial limit on the developing law of judicial review. That artificiality iswell illustrated in the present case by reference to the listing regulations issued by theCouncil of the Stock Exchange.As the foreword to the current edition makes clear, a new edition of the regulationsbecame necessary as the result of the Stock Exchange (Listing) Regulations were made asthe result of a requirement of an E.E.C Council directive. Mr. Alexander conceded thatthe listing regulations are now the subject of public law remedies. By contrast (if hissubmission is correct) the code, which is the subject not of a Council directive, but of aCommission recommendation is not.I now turn to the second of Mr. Alexander’s two arguments under this head. Hesubmits that there has never been a case when the source of the power has been otherthan statutory or under the “prerogative” this connection, as Professor Sir William Wademakes clear in another Child & Co. Oxford Lecture, “Procedure and Prerogative inPublic Law” (1985) 101 L.Q.R 180. Strictly the term “prerogative” should be confined tothose powers which are unique to the Crown. As Professor Wade points out, there wasnothing unique in the creation by the government, out of funds voted by Parliament, of ascheme for the compensation of victims of violent crime. Any foundation or trust, givensufficient money, could have done the same thing.Nor do I think that the distinction between the Criminal Injuries Compensation Board anda private foundation or trust for the same purpose lies in the source of the funds. Thedistinction must lie in the nature of the duty imposed whether expressly or byimplication. 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 justthe source of the power that matters, but also the nature of the duty. I can see nothing inReg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 Q.B 864 whichcontradicts that view, or compels us to decide that, in non-statutory cases, judicial reviewis confined to bodies created under the prerogative, whether in the strict sense, or in thewider sense in which that word has now come to be used. Indeed, the passage fromDiplock 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 lookingat the source of the power as Mr. Alexander submits. Then I would accept Mr. Lever’ssubmission that the source of the power in the present case is indeed governmental atleast in part. Mr. Alexander argued that so far from the source of the power beinggovernmental this is a case where the government has deliberately abstained fromexercising power. Is do not take that view. I agree with Mr. Level when he says that therehas been an implied devolution of power. Power exercised behind the scenes is powernonetheless.The express powers conferred on inferior tribunals were of critical importance in theearly days when the sole or main ground for intervention by the courts was that theinferior tribunal has exceeded its powers. But those days are long since past. Havingregard to the way in which the panel came to be established the fact that the Governor ofthe Bank of England appoints both the chairman and the deputy chairman and the othermatters to which Sir John Donaldson M.R has referred. I am persuaded that the panel wasestablished “under authority of the Government,” to use the language of Diplock L.J inLain’s case. If in addition to looking at the source of the power we are entitled to look atthe 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 courserecognized by section 31 of the Supreme Court Act 1981. section 31(1)(a) refersspecifically 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 maygrant a declaration or injunction if it is just or convenient to do so, having regard tovarious matters.I have already referred to the passage in Woolf J.s’ judgment in Reg. v. BritishBroadcasting Corporation, Expatre Lavelle (1983)1 W.L.R.23,31, in which he says thatapplications for judicial review under R.S.C., Ord. 53, r. 1(2) are not confined those caseswhere relief could be granted by way of prerogative order. As at present advised, I wouldagree with that observation. I would only add as a rider that section 31(1) of the SupremeCourt Act 1981 should not be treated as having put a stop to all further development ofthe law relating to the prerogative remedies, I do not accept Mr. Alexander’s submissionthat we are here extending the law. But if we were, I would not regard that as aninsuperable objection. The prerogative writs have always been a flexible instrument fordoing 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 fewsupplementary observations of my own.I take as may starting point Reg. v. Criminal Injuries Companies Board, Ex parteLain (1967) 2. Q.B 864,882,where Lord Parker C.J noted that the only constant limits ofthe ancient remedy of certiorari were that the tribunal in question was performing apublic duty. He contrasted private or domestic tribunals whose authority is derived solelyfrom the agreement of the parties concerned.With that in mind one looks at the Panel on Take-overs and Mergers (“thepanel”). The panel promulgates the City Code on Take-overs and Merges. As its nameimplies the code is concerned with take-over and merger transactions. Its ambit is verywide indeed. Among the companies to which it applies are all listed public companiesconsidered by the panel to the resident in the United Kingdom.Despite the wider range of the companies and persons it directly affects the panelsubmitted that it is not performing a public duty and that none of its activities issusceptible to judicial review. The only jurisdiction which the panel has is derived fromthe consent of its members. It is in the terms of Lord Perker’s dichotomy a private ordomestic tribunal whose authority is derived solely from the agreement of the bodiesconcerned. It was submitted that the activities of the panel constitute self-regulation andself-regulation involves a voluntary submission of those who deal in the market to therules 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 adeputy chairman appointed by the Governor of the Bank of England and representativesof 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 directorgeneral. He also is appointed by the governor of Bank of England and so is the chairmanof 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 acontract between its members or between the Bank of England at the bodies whichappoint representatives and if so, what are its terms, were not matters in evidence orexplored before us. Presumably, therefore, the code and amendments to it require theapproval of all the members of the panel.175

However, it seems clear that, whether or not there is a legally binding contract, there isan understanding between the bodies whose representatives are members of the panel thatthey will take all such steps, by way of disciplinary proceeding against their members orotherwise, as are reasonably and properly open to them to ensure that the code and therulings of the panel are observed. Similarly with the Bank of England; its weightyinfluence in the City of London is directed to the same end. Indeed, the leading partplayed 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 theimportant take-overs will be of companies whose shares are listened on the StockExchange by companies whose shares are similarly listed, the Stock Exchange is muchconcerned with the matters which the code seeks to regulate. In turn a major element inthe enforcement of these regulations is the sanctions, which the Stock Exchangepossesses over listed companies.In this regard it is important also to note that, whatever may have been theposition in the past, it is clear that today the Council of the Stock Exchange is performinga public duty when deciding whether or not to admit a security to official listing andwhether or not to discontinue such a listing.There is no longer a formal listing agreement entered into by companies seeking a listingof their securities. The council now has all the power required or permitted to beconferred on the competent authorities” by, inter alia, the admission directive of theCouncil of the European Communities of 5 March 1979 (79/279/E.E.C.): see the StockExchange (Listing) Regulations 1984. Articles 15 of that directive expressly provides thatmember states shall ensure that decisions of the competent authorities refusing theadmission of a security to official listing or discontinuing such a listing shall be subject tothe right to apply to the courts. Such an application in this country would take the form ofan application for judicial review.From this it is evident that the activities of the council of the Stock Exchange inlaying down requirements which a company must observe if it is to obtain and retain anofficial listing, and in interpreting those requirements and adjudicating upon allegedbreaches of those requirements, are activities which are subject to judicial review.Today those requirement include observing the code. In paragraph 6.15 of itsofficial 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 allshareholders of the same class of an offeree company must be treated similarly by anofferor, and that during the course of a take-over or when one is in contemplation neitherthe offeror nor the offeree nor their advisers may furnish information to someshareholders which is not made available to all.176

The code also contains some detailed rules. Some of these are far reaching. Thus acompany can be compelled, in certain circumstances, to make an offer, or to increase theamount of an offer it has made. Under rule 9 a person who acquires shares carrying 30percent or more of the voting rights of a company is required to make an offer topurchase all the equity capital of the company. Rule 6(2) provides that if while an offer isopen the offeror or any person acting in concert with it purchases shares at above theoffer price the offeror shall increase its offer to not less than the highest price paid for theshares so acquired.I do not suggest for one moment that these obligations are other than fair and reasonableand necessary. But, nonetheless, they are far reaching, and the sanctions for theirenforcement are also formidable; they include suspension of a listing by the Council ofthe Stock Exchange, in performance of its public duty in that regard.Thus the system which has evolved on the point am now considering isindistinguishable in its effect from a delegation by the Council of the Stock Exchange tothe panel, a group of people which includes its representative of its public law task ofspelling out standard and practices in the field of take-overs which listed companies mustobserve if they are to enjoy the advantages of a Stock Exchange listing and ofdetermining whether there have been breaches of those standards and practices. As isstated in the in the code those who do not conduct themselves in matters relating to takeoversaccording to the code cannot expect to enjoy the facilities of the securities marketin the United Kingdom.In my view and quite apart from any other factors which point in the samedirection, given the leading and continuing role played by the Bank of England in theaffairs of the pane, the statutory source of the powers and duties of the Council of theStock Exchange the wide ranging nature and importance of the matters covered by thecode and the public law consequences of non-compliance, the panel is performing apublic duty in prescribing and operating the code (including ruling on complaints).The particular factsI am not without sympathy for the applicants. The Kuwait Investment Officestood to receive about £300.000 in additional underwriting fees from Norton Opax Pls ifthe Norton Opax bid for McCorquodale Plc was successful and thus, depending uponone’s view of the likely trend in the price of Norton Opax shares that might have givenK.I.O a significant financial interest in the success of the Norton Opax bid. Then at acritical time in the course of the contest between the rival bids.When Datafin Plc was precluded from buying McCorquodale shares at above 315p pershare and Norton Opax was precluded from buying McCorquodale shares at over andNorton 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, asubstantial number of McCorquodale shares at 315.5p. I can well understand why theapplicants felt aggrieved.177

But the difficulties confronting the applicants on this judicial review applicationare manifestly insuperable. The panel correctly, approached the matter on the basis of thebasis 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 treatedinvestment and underwriting as separate business and that genuine investment reasonsexplained why K.I.O had not bought earlier and why it bought when it did. These, parexcellence 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 situationwhere suspicion where suspicion and distrust are bound to breed, are matters for thepanel. The evidence of the chairman shows that the panels have these considerations wellin mind.Leave to apply for judicial reviewGrantedDeclaration that court had jurisdictionTo hear applicationSubstantive application dismissedNo order for costs of panelApplicants to pay costs of intervenersChadwick, Leeds; Ashurst Morris Crips & Co.(COURT OF APPEAL)Solicitors: S.J Berwin & Co. Freshfields; Hepworth &P.MREGINA v. SHARPLord Lane C.J Farquharsonand Gatehouse JJ.Crime-Duress-Homicide- Person voluntarily joining gang of armed robbers- Reluctantparticipation 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 heparticipated in a robbery during which the gang leader shot and killed the victim. The178

appellant was tried on a count charging murder. He submitted that the defence of duresswas available to him since he had wished to pull out of dures was available to him sincehe had wished to pull out of the robbery but had participated in fear because a gun hadbeen pointed at his head by the gang leader with a threat to blow it off if the appellant didnot participate. The submission was rejected by the trial judge and the appellant wasconvicted of manslaughter.On appeal against conviction: -Held, dismissing the appeal, that the defence of duress was not available to a personwho 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 memberwhen he was put under such pressure; and that, accordingly, the trial judge was correct inhis 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. 20considered.3. LOCUS STANDI1. Lujuna Shubi Ballonzi v The registered trustee of CC, Civil Case No. 214 of1994.2. Mtikila v Attorney general, Misc. Civil Case No. 5 of 1993, HC at Dodoma.IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMCIVIL CASE NO 214 OF 1992LUJUNA SHUBI BALLONZI, SENIOR……………………… PLAINTIFFVERSUS179

THE REGISTERED TRUSTEES OF CHAMA CHA MAPINDUZI…DEFENDANTS………………………………………………………………SAMATTA, J.K:R U L I N GOne of the principal question I have to decide in this matter is whether thePlaintiff (now the respondent) Mr. Lujuna Shubi Ballonzi, Senior, has locus standi orstanding to bring the action, which is now before this court. In his plaint the respondenthas sued the Registered Trustees of Chama Cha Mapinduzi (hereinafter referred to by itsacronym, 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 immovableproperties which they have “purported” to acquire by using subventions from theconsolidated Fund;(4) an order that the defendants pa all external debts amounting to not less than sevenbillion dollars “incurred on behalf of Tanzanian’s and(5) a permanent injunction restraining the defendants from using and /or alienatingprosperities in their possession.In the plaint the respondent avers, inter alia:3. That the Defendants on or about the 5 th day of February, 1977, took all assets ofthe Tanganyika National African Union of Tanganyika and the Afro Shiraz Partyof 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 compulsorycontributions from people residing in Tanzania and others doing business withTanzania and used those moneys to acquire movable and immovable propertieswhich were then registered in their respective names. ALTERNATIVELY the180

founder parties should have used those funds prudently for the benefit of all of allTanzania.5. The Defendants without the authority and mandate of the people of Tanzaniaconstituted themselves a state party on or about the 5 th day of February, 1977 andcontinues to receive and use funds from the consolidated Fund and compulsorycontributions aforesaid in the same manner as the founder Parties until the 30 thday of June, 1922.6. that the Defendats are continuing to coerce the business community to contributeto them funds by using their position as a de facto Government. These funds canonly be received for and on behalf of all Tanzanians.7. That the Defendants, without the authority and mandate of Tanzania, transferredto themselves assets that they had acquired from the Founder Parties andregistered them in their names and further acquired other properties from thesubventions 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 hereinbecause these properties were purchased, acquired and/or constructed from fundswhich belonged to the peoples of Tanzania the overwhelming majority of whomare not members of the Defendants and therefore can hold such properties astrustees 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 hascontributed to the funding of the Consolidated Fund through payment of taxes andhas been forced on several occasions to contribute towards CCM, which moneyshave found their way in the coffers of the Defendants.10. It is estimated that the Defendants have accumulated properties worth shillingsseven hundred and eighty billion. (T.shs 780,000,000,000/=) from state funds andhave used on trillion shillings (1,000,000,000,000/=) to activities unrelated towelfare of Tanzanians and have through mismanagements, outright theft andautocracy incurred an external debt of dollars seven billion (7,000,000,000/=)ostensibly on behalf of Tanzania but without the authority and mandate of thepeople.181

11. That on the 1 st day of July, 1992, the Defendants have in an autocratic mannerconstituted themselves as a political party and continue to cling on propertiesreferred to in para 7 herein as theirs and have shown no intention to return them tothe 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 theunusual 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 applicationin which they pray that the plaint be struck out on one or more of the followinggrounds:(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 ofhearing, 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 contendedthat 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 fourgrounds in support of that contention. Those grounds may, without doing any injustice tothe very skilful manner in which the learned advocate put forward his arguments, besummarized as follows: -(1) The purported representative suit is incompetent because the mandatoryprovisions 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 beendisclosed by the plaint.(3) Assuming that the respondent has (properly) pleaded a trust, the non-compliancewith 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 receivingsubventions from the Consolidated Fund, the suit should been instituted againstthe Government and not against the applicants. In any case, the payment of thosefunds 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 tothat law, in order to Maintain proceedings successfully, a plaintiff or anapplicant must show not only that the court has power to determine theissue but also that he is entitled to bring the matter before the court; seeHalsbury’s Laws of England, 4 th ed, para 49 at p. 52. Courts do not havepower to determine issues of general interest; see Re I.G.Farben IndustriesA.G Agreement (1943) 2 All E.R 525. They can only accord protection tointerests, which are regarded as being entitled to legal recognition. Theywill 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, tomaintain an action before it a litigant must assert interference with ordeprivation of, or threat of interference with or deprivation of, a right orinterest which the law takes cognizance of. Since courts will protecAt onlyenforceable interests, nebulous or shadow interests do not suffice for thepurpose of suing or making an application of course, provided the interestis recognized by law, the smallness of it is immaterial.It must also be distinctly understood, I think, that not every damage orloss can be the subject matter of court proceedings. The maxam damnumsine injuria osse protest (there may be damage or loss inflicted without anyact being done which the law deems is injury is, without any shadow ofdoubt, part of the law of this country. An example of damnum absqueinjuria (loss without a wrongful act;) is where a man sets up a shop inorder to attract the customers of another shop. In Gregory and An. VLondon Borough of Camden (1967) 2 All E.R. 196, at p.203 G-H, PAULJ. Describes the common law principles in these terms,“There are many acts which cause lost which give the legalrights. Before one can come to a court of law, one mist suffer aninjury as well as damnum; one must have suffered a legal wrong aswell 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, thisCourt has, of course, power to modify the common law so as to make it suit localconditions. Commenting on identical power conferred on the High Court of East183

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 Nyaliltd. 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 suchqualifications as local circumstances render necessary” This wise provisionshould, I think be liberally contracted. It is recognition that the common lawcannot be applied in a foreign land without considerable qualification. Just as withan English oak, so with the English common law.You cannot transplant it to the African continent and expect it to retain the toughcharacter, which it has in England. It will flourish indeed but it needs carefultending. So with the common law. It has many principles of manifect justice andgood sense which can be applied with advantage to people of every race andcolour all the world over; but it has also many refinements, subtleties andtechnicalities which are not suited to other folk.These off-shoots must be cut away. In these far off lands the people must have alaw which they understand and which they will respect. The common law cannotfulfill this role except with considerable qualifications. The task of making thesequalifications is entrusted to the judges of these lands. It is a great task. I trust thatthey will not fall therein”.In this country, is there any logical basis for modifying the common law rule oflocus standi? In India the Supreme Court has widened that rule. The newapproach there is described by Mr Justice P.N Baghwati, a former Chief Justice ofthat country in his article Fundamental Rights in their Economic, Social andCultural Context, published in DEVELOPING HUMAN RIGHTSJURISPRUDENCE, Vol. 2 at p.83, in the following terms:“…There was difficulty in enforcing the human rights of the poor and thedisadvantaged, because they are not aware of their rights and they do not have thematerial resources to approach the courts in cases other than criminal. As a resultof a large range of human rights remain unenforced. We therefore developed thestrategy of public interest litigation.We held in a seminal decision that the ordinary rule of Anglo-Saxonjurisprudence is that an action can be brought only by a person to whom legalinjury is caused. However, this rule must be departed from in the cases of poorand disadvantaged classes of people where legal injury is caused to a person orclass of persons who, by reason of poverty or disability or socially oreconomically disadvantaged position, cannot approach the courts for judicialredress.184

Thus we held that any member of the public or social action groups acting bonafide, can approach the court seeking judicial redress for the legal injury caused tosuch person or class of persons, and that in such a case the court will not insist ona regular petition being filed by the public spirited individual or social actiongroup espousing their cause and will readily respond –even if its jurisdiction isinvoked merely by means of a letter addressed to it, as can happen in the case ofhabeas corpus actions.This widening of the rule of locus standi introduced a new dimension in thejudicial process and opened a new vista of a totally different kind of litigation forenforcing the basic human rights of poor and underprivileged sections of thecommunity, and ensuring basic human rights dignity. Much of the human rightsjurisprudence in India has been built up by the courts as a result of public interestlitigation.The courts have been enforcing basic human rights of the deprived and vulnerablesections of the society in cases under trial as well as convicted prisoners, womenin distress, children in jails and juvenile institutions, bonded and migrantworkmen, unroganised labour “untouchables” and “scheduled tubes”, landlessagricultural labourers who are denied minimum wages or who are victims offaulty mechanization, slum and pavement dwellers and victims or extra – judicialexecutions and many more”If I may respectfully say so, there is, I think, some justification for extending therule of locus standi in the direction taken by the Supreme Court of India. Theprovisions of s.26 (2) of the Constitution of the United Republic of Tanzania (theConstitution) do not seem to extend the rule to the degree done by the SupremeCourt (of India).Bearing in mind the realities of our society, including the comparable educationalbackwardness and poverty of the majority of the people, I would respectfullyagree with the following observations by Mr. Justice Kayode, a former Justice ofthe Supreme Court of Nigeria, made in his article The Role of The Judge inAdvancing Human Rights in DEVELOPING HUMAN RIGHTJURISPRUDENCE, Vol.3, at p. 100:“ It is submitted that the greatest excuse of the advocate of restraintin locus standi is that there would be follodgate if everyone isgiven hearing in (Human Right cases). No one would advocatefloodgate in ordinary cases, but as has been submitted earlier,human rights are special rights and special rights deserve special185

treatment. If floodgate it entails, let there be on, once it is a matterof human rights”An ordinary person is likely to be more conversant with his private law right thanwith his public law rights. By necessity the rule of locus standi, in so far as titrelates to human rights litigation, must be wide.I can see no warrant for making similar extension to the rule as far as privateinterest litigation is concerned. Since I do not think it would be right to considerthe respondent’s suit as falling under the purview of human rights litigation, Iproceed, being guider by among others, the cases I have cited supra, to considerthe merits or otherwise of Mr. Uzanda’s submissions.Although in the plaint he does not expressly say so, it is as plain as apikestaff that the respondent has purported to file the suit not only on his ownbehalf but also on behalf of all Tanzanians who are not members of CCM. Asalready indicated, Mr. Uzanda contends that the suit is incompetent in law on theground that the provisions of Order 1, rule 8 of the Code have not been compliedwith. I have no doubt that this contentions unanswerable. Rule 8 of Order I reads;“8 – (1) Where there are numerous persons having the sameinterest in one suit, one or more of such persons may, with thepermission of the court, sue or be sued, or may defend, in suchsuit, on behalf of or for the benefit of all persons so interested. Butthe court shall in such case give, at the plaintiff’s expense, noticeof the institution of the suit to all such persons either by personalservice or, where from the number of persons or any other causesuch 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 isinstituted or defended under sub-rule (1) may apply to the court tobe made a party to such suit”This rule is almost in pari material with Order 1, rule 8(1), (2) and (3) of the CivilProcedure Code of India. Commenting of the latter rule, the learned authors of SirJohn Woodroffe and Ameer Ali’s CODE OF CIVIL PROCEDURE, 3 rd 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 whichtranscends the personal or parochial nature of the combatants who are arrayed asparties to the suit. It affects the rights of other persons not present before theCourt. Hence a duty is cast on the Court itself to follow meticulously the186

procedure prescribed by Order 1, rule 8. In view of the far reaching consequencesof a decree passed in what is described in law as a representative suit, it isnecessary that the relevant provisions must be treated as peremptory andmandatory”.And at p.1405, the learned authors state as follows;“A representative suit cannot be said to have been validlyinstituted unless and until the mandatory provisions of Order 1 ruleof the Civil Procedure Code are complied with. The provisioncontained in Order 1, rule 8, C.P.C. Is mandatory and not merelydirectory and is an essential pre- condition for the trial of the caseas a representative suit. It is imperative that the two conditionsprovided in rule 8 of Order I, should be complied with, namely, (1)the permission of the Court should be obtained and (2) the Courtshould, at the expense of the plaintiffs, issue notice of theinstitution of the suit to all such persons either by personal serviceor where from the number of persons, or any other cause suchservice is not reasonably practicable, by public advertisement asthe Court may direct”.In my view, these two passages also accurately state our law. A person cannot seek toadvance the claims of a group of persons without adopting the procedure laid down inrule 8 of Order 1 of the Code. He cannot, as the respondent in the case now before me haspurported to do, institute a representative suit without first obtaining leave of the court tobring such suit when such suit is instituted without that leave, it must struck out for beingincompetent in law.Common interest litigation can be conducted only in accordance with the provisions ofOrder 1, rule 8 of the Code. As already remarked, failure to comply with those mandatoryprovisions is fatal to any such suit or application. This is, in law, a sufficient ground forstriking 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 allegedmisconduct, he has suffered special damage over and above other Tanzanians or millionsof 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 civilaction by the Attorney General as the guardian of the public interest. Except wherestatutory provisions provide otherwise, a private person can only bring an action torestrain a threatened breach of the law if his claim is based on an allegation that thethreatened breach will constitute an infringement or his private right or will inflict specialdamage on him. What, as far as common law is concerned, are authorities for these187

propositions? To answer that question, I would cite Attorney – General ( on the relationof McWhirter v. Independent Broadcasting Authority ( 1973) 1 ALL E.R. 689 andGouriet v. Union of Post Office Workers and Others (1977) 3 All E.R. 70, two of thecases Mr. Uzanda referred me to in the course of his very attractive submission. I do notconsider it necessary to go into the facts of those cases. Both cases concerned the scopeof the common law general principle that a private person is not entitled in law to bringan action in his own name for the purpose of preventing or seeking compensation forpublic wrong. In the former case, LORD DENNING, M.R., said, at p.696;If a government department or a public authority transgresses the law laiddown by Parliament, or threatens to transgress it, can a member of the public come to thecourt and draw the matter to its attention? He may himself be injuriously affected by thebreach. 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 noone of them can bring an action for damages, unless he has suffered special damage overand above everyone else. That was settled in 1535 in a case in the Year Book. That rulewas laid down in order to avoid multiplicity of actions. The argument was put in thisway; ‘If one of those injured were allowed to sue, a thousand might do so; and that wasconsidered intolerable. Sir William Blackstone in his commentaries said;‘…. It would be unreasonable to multiply suits, by giving every man a separateright of action, for what damnifies him in common only with the rest of his fellowsubjects’But does this rule – which prevents anyone suing for damage – also prevent any memberof the public from seeking a declaration or an injunction? (These) are discretionaryremedies, to which no one has a right but which the court can grant if it thinks fit. Theusual course, no doubt, is for the member of the public who is aggrieved to go to theAttorney – General and ask him to intervene – either ex officio or by granting leave touse him name in a relator action.In all proper cases the Attorney General will, no doubt, give his leave. But it is a matterfor his discretion”The Master of the Rolls then went on to consider whether the aggrieved member of thepublic had any access to court if the Attorney- General unreasonably refused to give theleave 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 Generalin this respect. He said, at p.697:188

It is settled in our constitutional law that in matters which concernthe 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 torepresent the public interest with complete objectivity and detachment. Hemust act independently of any external pressure from whatever quarter itmay come. As the guardian of the public interest, the Attorney – Generalhas a special duty in regard to the enforcement of the law.His duty has been thus stated by members of this court who, eachin his turn, had held the office of Attorney – General. In 1879 in Attorney– General v. Great Easter Railway Co. (1870) 11 Ch D449 at 500Baggalay L.J said:It is the interest of the public that the law should in all respects berespected and observed, and if the law is transgressed or threatened to betransgressed …it is the duty of the Attorney- General to take the necessarytreps to enforce it, nor does it make any difference whether he sues exofficio, 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 hadhimself been Attorney – General in Deare V. Attorney – General (1835) IX & C Ex 197at 208:It has been the practice, which I hope never will bediscontinued, for the officers of the Crown to throw no difficulty in theway of any proceeding for the purpose of bringing matters before a courtof justice, where any real point of difficulty that requires judicial decisionhas occurred”In Gouriet’s case supra, LORD WILBEREFORCE analysed the common law principle atgreat length. In the course of his judgment,“It can be properly said to be a fundamental principle of English law that private rightscan 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 theAttorney – 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 ingeneral no private person has the right of representing the public in the assertion of publicrights. 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:189

“That it is the exclusive right of the Attorney – General to represent thepublic interest, even where individuals might be interested in a larger viewof the matter, is not technical, not procedural, not fictional. It isconstitutional. 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 actionnow before this Court? I think not. In the first place, in his plaint the respondent has notcomplained of unconstitutionality or illegality. Although he is a lawyer by profession, hehas not cited any provision of the Constitution or any other law, which has been violatedby the applicants. This omission is, in my view, a matter of no surprise. The respondentcould not have made such citations because under the Constitution and law then in forceno unconstitutionality or illegality cold arise in the applicants receiving from theGovernment the moneys they are said to have received on behalf of CCM, or in theGovernment making those disbursements. I will be forgiven, I hope, for stating theobvious, namely, the constitutionality or legality of yesterday’s actions cannot be testedby 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 personcannot assert rights belonging to the public. In my judgment, they merely reduce thescope of the rule. As for as public nuisance and public charity are concerned, two or moreprivate 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; seeTricumdass Mulji and An. V. Khimji Vullabhdass and others (1892) 16 Bom. 626 andLutifunnissa Bibi and Others v. Nazirun Bibi (1885) 11 Cal 33. The provisions of thosetwo sections re mandatory; suits to which the sections apply can only be instituted inaccordance with their provisions. It cannot be denied that the instant suit has not beeninstituted in compliance with the provisions of s.67. It may well be – and I stress that Isay no more than that – that the trustees of a political party can, in law, seek from thiscourt.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, whichwere being made to the applicants. I am not disposed to think that all the issues raised bythe 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 locusstandi. Whether CCM is a properly registered political party, for example, is plainly aquestion 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, forany wrong allegedly committed in relation to subventions received by the applicants doesnot lie in the judicial field. In general, the management of public funds, like themanagement of the economy and foreign policy of the country, is the prerogative of theexecutive; it is not amendable to judicial process. In the exercise of its power in that fieldthe executive is accountable to Parliament. It would be straining to the atmost the power190

of judicial innovation to say that in the exercise of its power in that area the executivefalls under judicial superintendence or scrutiny. Generally speaking, judicial process isunsuitable for determining issues arising from the exercise of those powers. I findconsiderable support for that proposition in the observations made by LORD DIPLOCKin Council of Civil Service Unions and Others v. Minister for the Civil Service (1985) 1A.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 donot normally involve questions to which, if disputed, the judicial process is adapted toprovide the right answer; by which I mean that the kind of evidence that is admissibleunder judicial procedures and the way in which it has to be adduced tend to exclude fromthe attention of the court competing policy considerations which, if the executivediscretion is to be wisely exercised, need to be weighed against one another – a balancingexercise 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 scrutinywould not be a sustainable proposition.Judging from what he avers in his plaint, Mr. Ballonzi, system which existed inthis country before the multi-party system was adopted a few years ago, but the lawregards him as lacking status to maintain the proceedings he has instituted before thisCourt. 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 properlyframed and some of his causes of action are incontestably bad in law. The suit will notlie.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 SamattaJAJI KIONGOZIDelivered this 9 th day of May, 1995, in the presence of counsel for the applicants.B.A SamattaJAJI KIONGOZIIN THE HIGH COURT OF TANZANIA191

AT DODOMACIVIL CASE NO. 5 OF 1993REV CHISTOPHER MTIKILA………………………..PLAINTIFEVersusTHE ATTORNEY GENERAL:…………………………DEFENDANTRULINGLIGAKINGIRA. J:Before this court is a petition by the Rev. Christopher Mtikila in which he seeksvarious reliefs all touching and concerning the 1977 Constitution of the United Republicof Tanzania. The petition traverses a wide area, ranging from questioning the validity ofthe said Constitution to the protection of the same. When the matter came up for healingthree 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 rulingon those objections.The objections are based on three broad grounds, namely, that the petitioner hasno locus standi in his claims, that the claims do not disclose a cause of action, and that thematters are not justifiable, to put it differently, that the court has no jurisdiction to grantthe relief sought.These are broad and complex questions which would require careful considerationespecially so in the context of this case which does not admit of generalization. To dojustice to the subject would therefore require a generous supply of time, and this I do nothappen to have. In the difficult circumstances of this case, I have decided generally toreserve my position of thee issues to the time of deciding on claim which are prima faciemaintainable.192

It follows from the foregoing that there are certain matters in the petition whichmust be dealt with at this stage and these are matters the presence of which I considerunnecessary 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 attendantrelief 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 oflearned counsel for the petitioner.Mr. Dominic Mbezi, it is not generally easy to match a paragraph with its prayer. I willproceed to consider each paragraph in turn but-before doing so it is desirable albeitbriefly to proper some general remarks.The function of courts of law is to settle legal questions. We therefore have thedoctrine of separation of powers under which the executive, the legislature and thejudiciary are as far as possible assigned different duties and enjoined not to trespass intoeach other’s field.In contemporary times executive activities has tended to blur this separation and this hasin turn made it imperative for the courts to stand more resolutely between the governmentand the governed. Not infrequently, therefore. Court will interfere in execute action orinaction to protect and promote the rights of the individual citizen; they will alsointervene for similar purposes in legislative action. In doing so they will not beinterfering 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 theycompel legislation for that is a legislative matter. The courts are only credited with lawmaking either through the doctrine of precedent or in the exercise of the power to makerules of court. The matter that are dealt with below either arose out of confusion or failureto appreciate the distinction between legal and political questions.In paras 4 and 19 (o) of the petition the petitioner claims that the 1977Constitution and its subsequent amendments were passed by an incompetent body andtherefore prays for a declaration that the said Constitution is void. I do not have to say allthat 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 isprepared for such an eventuality. It is therefore misconceived and must be removed topave the way for a legitimate and unprejudiced trial of other issues. Accordingly para 4and 19 © are struck out of the petition.193

In para 5 the petitioner claims that contrary to Art. 21 (2) of the Constitution hehas been denied the right to participate in making decisions on matters effecting thenation 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) foran order directing the government to set that process in motion. This is one of thosematters which manifest a miscomputing between executive, legislative and judicialfunction.I know that the question of a new constitution and even a referendum is aburning issue at the moment. And I venture to say that it would be impolitic to turn ablind eye and a deaf ear to this reality. Yet I do not see how the court can make the orderprayed for in the present state of the law without appearing to infringe on the spheres ofother organs of government.In order for such an order to be made there should be a law or parliamentary motion inplace upon which those organs can be called upon to act. We do not, for instance, have areferendum law, and you do not simply call out people from their homes and tell them todrop 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 theeffect 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 CriminalAppeal No. 28 of 1990 (unreported) in which the court held that the High Court hadunlimited inherent original jurisdiction to adjudicate upon any legal matter unless there isexpress statutory provision to the contrary” It seems that Mr. Mbezi did not see thesignificance of the work “legal” in that statement.The High Court cannot, therefore, adjudicate on matters that are purely political asdistinction from legal issues. Fence, while conceding unequivocally, that every citizen isentitled to participate in the making of decisions on matters affecting his country, theonly mode of participation now available is election of representatives to the NationalAssembly. Another modes are provided for their more imagination does not provide alegal basis for the court to make the order prayed for para 5 and 19 (a) are accordinglystruck out.Para 6 is evidently vague and consists of political breaking. The petitionercomplains that the government continues to behave it is Tanzania still a one partytemporary and calls upon this court in para 19 ( to make a declaration that there is needfor the formation of a transitional government. In para 19 (e) he invites the court todisestablish 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 claims194

will not succeed. The court cannot permit itself to the abused that way. These paragraphsthus turn on the petitioner’s dislike of the government and CCM’s style of governancewhich 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 onthe desirability and the form of the union between Tanganyika and Zanzibar. In view ofwhat I have said under para 5, I need not belabour the matter further. The said paragraphsare struck out.Para 8 is a puzzle. It states that the government has been adding unconstitutionallyto the list of Union Matters contained in the Acts of Union (Cap. 557), but no prayer isattached to it. I am aware of the academic writings from which this paragraph derivesinspiration 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 forany other reliefs which the court may deem just to grant and said that addition to the listwas a burden to the taxpayer. Whether or not it is a burden is a question of policy ratherthan law. The paragraph is struck out.Para 17 and 18 may be taken – together. The former states that the constitutionmakes provision for a separate government for Zanzibar but does not make similarprovision 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 notmatters for judicial adjudication.Para 18 the other hand, laments that Zanzibar elected Members of parliament participatein debating and passing measures that touch concern Tanganyika only. It says that this isunconstitutional and an unreasonable burden on the people of Tanganyika ad contrary tothe democratic principles of election and representation. As with other paragraphsmentioned 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 notshown how their participation at such times contravenes the Constitution. It may well beundemocratic and undesirable for Zanzibar to decide the destiny of Tanganyika whilethe latter has no such opportunities to do to the former, but that is once again not a matterfor 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: Para9, read with 19 (g) and para 10, read with 19 (f), on Parliament’s power to amend the195

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), onthe 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 LUGAKINGIRAJUDGEIN THE HIGH COURT OF TANZANIAAT DODOMACIVIL CASE NO: 5 OF 1993REV. CHRISTOPHER MTIKILA:……………….PLAINTIFFVersusTHE ATTORNEY GENERAL:……………………..DEFENDANTRULLINGLUGAKINGITA. J.This was an unusual petition. In it’s content and demand it constitute severalpetitions in one which range from challenges to the validity of divers laws to theprotection. In the Constitution and legality. The petitioner, the Rev. Christopher Mtikila,is a human rights companion our political activist and was represented by learned counselMr. Dominic Mbozi who was assisted by Mr. Richard Rweyongeza. The respondentAttorney General was represented by Mr. Kipenka Msememba Mussa, a Senior StateAttorney. I wish to commend them all for the industry and brilliance that went into thepreparation and presentation of arguments.196

The petition originally raised very diverse issues, many of them rather political inlavour and substance, and this prompted Mr. Mussa to raise a litary of preliminaryobjections which the Court resolved in the early stages of the proceedings. The objectionswere grounded in questions of the petitioner’s licus standi, cause of action andjusticiability of some of the issues.At the end of the day a number of matters were struck out and issues were then framedfor the survivours. In view of the character of the petition which had to be amendedseveral 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. Itseeks 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. Theinquiry is prompted by a set of amendments to the Constitution vide the EighthConstitutional Amendment Act, 1992 (No. 4).The Act amends Articles 39, 67 and 77 in a manner, which appears to infringe the rightof participation in national public affairs, which is guaranteed by Art. 21 (1): it alsoamends Art. 20 in a manner, which appears to infringe the freedom of association, whichis guaranteed in sub-art, (1) thereof. To put it differently, the problem posed in the firstissue 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 PoliticalParties Act, 1992 (No. 5) which was enacted pursuant to the amendment to Art, 20. Theseprovisions are alleged to inhibit the formation of political parties and therefore to infringethe 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 theLocal Authorities (Elections) Act, 1979. These amendments renders it impossible forindependent candidates to contest presidential, parliamentary or local council elections. Iam again called upon to remedy the situation.In the third issue the petition takes on ss. 5 (2), 13, 25, and 35 – 47 of theNewspapers Act, 1976 ( No. 3.). Section 5 (2) empowers to exclude any newspaper fromthe 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 andregister a bond in the office of the Registrar of Newspapers. Section 25 empowers theMinister to order cessation of publication of any newspaper. Sections 37 – 47 areconcerned with defamation and the punishment for libel.Finally, the petition takes on para 12 (1) of Government Notice No. 166 of 1977, whichempowers the Registrar to refuse registration of a newspaper. It is contended that all197

these provisions are ordinary and liable to abuse and constitution an infringement to thefreedom of prevision which is guaranteed under act. 18 (1).The fourth issue turns on the freedom of peaceful assembly and public expressionand 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 itnecessary for permits to be obtained in order to hold meetings or organize processionsand also provide for police duties in relation thereto. In the sixth and final issue adeclaration 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 thisstage the questions of locus standi cause of action and justiciability and I will proceed todo so before considering the matters set out above.Arguing the questions on locus standi, no doubt with a mind to the common laworthodox position, Mr. Mussa submitted that the petitioner had to show a sufficientinterest in the outcome. He considered this to be implied in Art, 30 (3) of theConstitution. In his view the petitioner had to demonstrated a greater personal interestthan 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 NigerianConstitution it was necessary for the appellants to establish a sufficient interest inmaintaining the action and this should be a personal interest over and above that of thegeneral 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 toinvolve judicial power, he must show that either his personal interest willimmediately be or has been adversely affected by the action or that he has sustainedor is in immediate danger of susta – ining an injury is over and above thatof the general public.Basing on this, Mr. Mussa went on to assert that the crusial factor in the petition was thepetitioner himself and not the contents of the petition. Furthermore, he contended thatArt. 26 (2) of the Constitution did not in itself confer locus standi and appeared to readthe provision as if it were not independent in itself.In response Mr. Mbezi argued that standing was certainly conferred on thepetitioner by Art. 26 (2) and that personal interest ( on injury ) did not have to be198

disclosed in that context. He maintained that the alleged illegality of the laws wassufficient to justify the petition under that provision. Mr. Mbezi further stated that thepetitioner acquired locus standi under Art. 30 (3) as well and referred to the dispersal ofhis meeting under the provisions of the Police Force Ordinance, the refusal to register hisparty under the provisions of the Political Parties Act and the banning of Michapo andCheka newspapers (his alleged mouthpieces) as sufficiently demonstrating thepetitioner’s interest within the contemplation of Act. 30 (3) Mr. Mbezi further argued thatin view of the provisions of Art. 64 (5) the Court could be moved into action by anypetitioner.I have given due consideration to the contending arguments and feel called uponto deal with the subject at some length. The status of a litigant in administrative law is acrucial factor and it has assumed an added dimension in constitutional law in the wake ofwritten constitutions.In the English common law the Litigant’s locus standi was the handmaid of judicialreview of administrative actions. Whenever a private individual challenged the decisionof an administrative body the question always arose whether that individual had sufficientinterest is the decision to justify the court’s intervention. Hence, it is stated in Wade andPhilips. Constitutional law (1965: 672):In administrative law it is necessaryfor a complainant to have a peculiargrievance which is not suffered incommon 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 therecognition of the existence of public law as a distinct sphere from private law. In otherparts of the commonwealth, notably India and Canada, a similar but imperceptibledevelopment came to manifest itself in the doctrine of public interest litigation.Traditionally, common law confines standing to litigate in protection of public rights tothe Attorney General and this was reaffirmed by the House of Lords in Guriet v. Union ofPost Office Workers (1978) AC 435, and the Attorney General’s discretion in such casesmay be exercised at the instance of an individual.But before even the enactment of the Supreme Court Act, a liberal view of standing wasalready taking shape and a generous approach to the issue was already considered199

desirable. This is illustrated by these words of Lord Diplock in IRC V. NationalFederation 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 – datedtechnical rules of locus standi from bringing the matter to the attention of the a court tovindicate the rule of law and get the unlawful conduct stopped.Yet more contemporary developments indicate that in England judges arebeginning to acknowledge the possible appearance of apparent “Busy – bodies” wherepublic 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 interestthan the other members of the public. In R.V Metropolitan Police Commissioner ex parteBlackburn, (1963) 2 QB 118, he challenged police policy in not enforcing the gaming orobscenity laws, and in Blackburn v. Attorney General, (1971) 2 All E.R 1380, hechallenged Government policy in joining the European Community.The developments in Canada have been no less breathtaking and we there findmore generous standing rules applied than elsewhere is the older Commonwealth. Thishas been largely facilitated by the existence of a written constitution and theincorporation of a charter of basic rights. The taxpayer is the central figure in theCanadian approach. In Thorson v. A.G of Canada, (1975) 1 SCR 138. a taxpayer wasallowed by a majority to challenge the constitutionality of the Official Languages Act.Laskin. J. Speaking for the majority contemplated “…. Whether a question ofconstitutionality should be immunised from judicial review by denying standing toanyone to challenge the impugned statute. “It was observal that standing in constitutionalcases was a matter for the exercise of judicial discretion. In the case of Nova ScotiaBoard of Censors v.MoNeil, (1976) 2 SRC 265, the Supreme Court again grantedstanding to a taxpayer to challenge the validity of a provincial Act regulating film andtheatre show. This position is also illustrated in Minister of Justice v. Borowaki (1981) 2SCR 675 where the majority granted standing to a taxpayer impugning federal legislationallowing abortion, and ruled:……… to establish status as a plain – tiff in a suit seeking adeclaration that the legislation is invalid, if there is a serious issueif invalidity, a person need only to show that he is affected by itdirectly or that he has a genuine interest as a citizen in the validity200

of the legislation and that there is no other and effective manner inwhich the issue may be brought before the Court.The Canadian Supreme Court has in fact extended the liberalizing effect of thesejudgments beyond constitution cases.Finally, it is important to revisit the Nigerian position, What was said in Thomaswas not merely an expression of the seeming inflexibility of s. 6(6) of the 1979 NigerianConstitution but it was also a product of the colonial heritage, Soon after the attainmentof independence Nigerian courts found themselves having to determine when and underwhat circumstances will a litigant be accorded standing to challenge the constitutionalityof 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 hadchallenged the Constitutionality of a law which prohibited children from engaging inpolitical activities. The trial court dismissed the claim on the ground that no right of theplaintiff was alleged to have been infringed and that it would be contrary to publicprinciple to make the declaration asked for in value.He appealed to the Federal Supreme Court which dismissed the appeal on the sameground of absence of sufficient interest. In a classic restatement of the orthodox commonlaw approach, Unworthy, F.J. said, at p. 274.There was no suggestion that the appellant was in imminent danger ofcoming into conflict with the law or that there has been any real or directinterference with his normal business or other activities…the appellantfailed to show that he had a sufficient interest to sustain a claim...to holdthat there was an interest here would amount to saying that a privateindividual obtains an interest by the mere enactment of a law which mayin future come in conflict.Curiously, the Nigerian courts remained stuck in that position even when the 1979Constitution suggested a way out with the clause –Any person who alleges that any of the provisionsof this chapter has bee, is being or likely to becontravened in any State in relation to him mayapply 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 the201

appointment by the President of the second respondent to the chairmanship of the FederalElectoral Commission. The latter was at the material time the Chief Judge of BendelState and was, therefore, disqualified from being appointed a member of theCommission.When the matter came up for final disposal before the Supreme Court it was unanimouslyheld that the appellant had not demonstrated the appointment and subsequentconfirmation by the Senate of the second respondent had in any way infringed his civilright and obligations. Significantly, though, Fetayi – Williams, C.J.N. who delivered theleading judgment and these interesting remarks to make ( at p. 20):I take significant cognizance of the fact that Nigeria is a developingcountry with a multi – ethnio society and a written Federal Constitution,where rumourmongering is the pastime of the market places and theconstruction sites. To deny any member of such a society who is aware orbelieves, or is led to believe, that there has been an infraction of any of theprovisions or our Constitution, or that any law passed by any of ourLegislative Houses, whether Federal or State, is unconstitutional, access toa Court of law to air his grievance on the flimsy execuse of lack ofsufficient interest is to provide a ready recipe for organizeddisenchantment 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 moreammunition. Henoeforth many of the Nigerian courts preferred to use the broad andliberal 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 anyNigerian taxpayer had sufficient interest in the observance of the provisions of theConstitution by any organ of the State of its agency. And in A.G of Benden State v. A.Gof Nigerian (1982) 3 NCLRI, 88, Obaseki, J.S.C., who was a party to he decision inOdesanya, came around to say:The constitution has opened the gates to the courts by its provisions andthere can be no justifiable reasons for closing the gates against those whodo not want to be governed by a law enacted NOT in accordance with theprovisions of the constitution.The shift in Nigeria was sealed in Adediran v. Interland Transport Ltd. (1991) 9 NWLR155 where Karibi – Whyte, J.S.C said:202

…the restriction imposed at common law on the right of action…is inconsistent with theprovisons of s. 6(6) (b) of the Constitution. 1979 and to that I think the high constitutionalpolicy involved in s. 6(6) (b) is the removal of the obstacles erected by the common lawrequirements against individuals bringing actions before the court against the governmentand 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 longerholds good. The notion of personal interest, personal injury or sufficient interest over andabove the interest of the general public has more to do with private law as dictinct frompublic law. In matters of public interest litigation this Court will not deny standing to agenuine and bona fide litigant even where he has no personal interest in the matter. Thisposition also according with the decision in Benazir Dhutto v. Federation of PakistanPLD 1988 SS. 46, where it was held by the Supreme Court that the traditional rule oflocus standi can be dispensed with and procedure available in public interest litigationcan 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 promisesmore hope to our people than any other strategy currently in place. First of all, ill issecond in Africa in wiping out illiteracy but that is statistical juggling which is notreflected on the ground. If we were that literate it would have been unnecessary forHanang District Council to pass bye – laws for compulsory adult education which wererecently published as Government Notice No. 191 of 1994.By reason of this illiteracy a greater part of the population is unaware of their rights, letalone how the same can be realized. Secondly, Tanzania are massively poor. Our rankingin the world on the basic of per capita income has persistently been the source ofembarrassment. Public interest litigation is a sophisticated mechanism which requiresprofessional handling. By reason of limited resources the vast majority of our peoplecannot afford to engage lawyers even where they were aware of the infringement of theirrights and the perversion of the Constitution.Other factors could be listed but perhaps the most painful of all is that over the yearssince independence Tanzania have developed a culture of apathy and silence. This, inlarge measure, is a product of institutionalised mono –party polities which in itsrepressive dimension, like detention without trial, supped up initiative and guts. Thepeople found contentment supped up initiative and guts.The people found contentment in being receivers without being seekers. Out leaders verywell recognize this, and with the emergence of transparency in governor they have nothesitated to affirm it. When the National Assembly was debating Hon. J.S. Warioba’s203

private motion on the desirability of a referendum before some features of theConstitution were tampered with, Hon. Sukwa Said Sukwa, after tow interruptions by hiscolleagues, continued and said (Parliamentary Debates, 26.8.1994):Mheshimiwa Spika, nilisema kwamba tatizo la nchi yetu sio wananchi. Lazimatukubali hili kwa kweli, tatizo ni sisi viongozi. Kama sisi viongozi tutakubaliana,wananchi hawana matatizo. Mimi nina hakika Mheshimiwa Spika. Kama viongozi waTanzania wote, wa pande zote mbili wa Zanzibar na wa Tanzania Bara, tukubali kusemakesho Serikali moja, basi itakuwa kesho, na wananchi watafanya maandamano kuungamkono. 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 – spiritedindividual and seed the Court’s intervention against legislation or actions that pervert theConstitution 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 everyperson in Tanzania is vested with a double capacity: the capacity as an individual and thecapacity as a member of the community. In his former capacity he enjoys all the basicrights set out in Art. 12 to Art. 24: in the latter capacity he is bounded to discharge dutiestoward the community as indicated in Art. 25 to Art. 28.This scheme reflects the modern trend in constitutionalism which recognizes the preemimenceof the community in the formulation of the constitution. It is recognized thatrights are correlative with funetions; we have them that we may make our contribution tothe social end. Our Constitution goes further to emphasize the two capacities byequipping the individual with a double standing to sue. In the first place he is vested withstanding by Art. 30 (3) which states:(3) Where ay person alleges that any provision of this part of this Chapter or anylaw involving a basic right or duty has been, is being or is likely to be contravened inrelation to him in any part of the United Republic, he may, without prejudice to any otheraction or remedy lawfully available to him in respect of the same matter, instituteproceedings for relief in the High Court.204

This provision, in my view, caters for both personal and public interest litigation for attimes the two may prove inseparable. A person who sues because he desires to be anindependent parliamentary candidate where the system does not so allow necessarilyshoulders the burden for the public. It is also important to not that under this provisionaction lies where a person’s has been, is being or is likely to be contravened.” These areplain and clear words which admit of no controversy. Standing is therefore availableunder the Constitution even where contravention of a basic right is reasonablyapprehended.The case of Thomas, and in as much as it was decided in deference to the much criticizeddecision in Adesanya, has no relevance in the context of our Constitution. In the upshot itis not correct to say, as Mr. Mussa suggested, that the petitioner has no locus standibecause he cannot show that his rights have already been infringed. In my view he iswithin the purview of Art. 30 (3) if there is in existence a law the operation of which islikely 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 thelaw, 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 usedin lieu of the latter. With respect, I cannot agree. It is a cardinal rule of statutory andconstitutional interpretation that every provision stands independent of the other and hasspecial function to perform unless the contrary insention appears. There is nothing inArt. 26(2) or elsewhere to link it to Art. 30(3). The only linkage is to Art. 30(4) and thisis one of procedure rather than substance Clause (4) empowers Parliament to makeprovision for the procedure relating to institution of proceedings under the article. It hasnot done so todate but that does not mean that the court is hamstrung. In D.P.P. v. DaudiPete, 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 theprocedure and practice that is available in the High Court in the exercise of its originaljurisdiction, depending on the nature of the remedy sought, “ I hold Art. 26 (2) to be anindependent and additional source of standing which can be invoked by a litigantdepending on the nature of his claim.Under this provision, too, and having regard to the objective thereof – the protection ofthe Constitution and legality – a proceeding may be instituted to challenge either thevalidity of a law which appears to be inconsistent with the Constitution or the legality ofdecision 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 andfalls under the sub-title “Duties to the Society.” It cocurs to me, therefore, that Art. 26205

(2) enacts into our Contribution the doctrine of public interest litigation. It is then not inlogic or foreign precedent that we have to go for this doctrine; I t is already with us in ourcan Constitution.I hast in to emphasise, however, that standing will be granted on the basic ofpublic interest litigation where the petition is bona fide and evidently for the public goodand where the Court can provide an effective remedy. This point is underscored in PeopleUnion for Democratic Rights v. Minister of Home Affairs, AIR 1985 Dedhi 268, where itwas 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 whichis meant to satisfy the curiosity of the people, but it is a litigation which is instituted witha desire that the court would be able to give effective relief to the whole or a section ofthe society.It is emphasis in the case that the condition which must be fulfilled before public interestlitigation a entertained by the court is that the court should be in a position to giveeffective and complete relief. If no effective or complete relief can be granted, the courtshould not entertain public interest litigation.I gave serious consideration to the matters raised in this petition and the prayersconnected therewith and I was persuaded that in quite a number of areas the publicinterest overwhelmed what appeared to be a private factor. I therefore allowed argumentsto proceed on the issues reviewed above. But in the light of those arguments and what isstated in this paragraph, it may be necessary to reconsider the position of one issue at theappropriate stage later. Meanwhile I will turn to dispose of the question of cause ofaction.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 tothe rights of the petitioner must have taken place. In my view, where the issue iswhether 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 withthe Fundamental Right it is the provisions of the Act that must be looked at and not themanner in which the power under the provision is actually exercised. Inconsistency orrepugnancy does not depend upon the exercise of the power by virtue of the provisions inthe Act but on the nature of the provisions themselves.206

I agree and can not wish to add anything more. In this petition the dispute is over thevalidity of various laws and this, in my view, constitutes the necessary cause of action. Asituation 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 theappointment of Zanzibaris to non- union positions on the Mainland is questioned. In thatcontext it is the appointments themselves that constitute the cause of action our that hasto do with the validity of the action rather than a law. There now remains the question ofjusticiability of the claims but since that has more to do with the first of the issues, I willnow turn to consider them.The first issue seeks to determine the immutability of basic rights enacted in theConstitution. This turns on the power of the Parliament to amend the provisionsproviding for these rights. Specifically, what is at issue are the amendments to Art. 20and Art. 39 of the Constitution vide the Eighth Constitutional Amendment Act, 1992. Inthe original form Art. 20 read as follows:20 – (1) Subject to the laws of the land, every person is entitled to freedom ofpeaceful assembly, association and public expression, that is to say, the right to assemblefreely and peaceably, to associate wit other persons and, in particular, to form or belongto organizations or associations formed for the purposes of protecting or furthering his ornay other interests.(2) Subject to the relevant laws of the land, a person shall not be compelled to belong toany association.In its amending form clause (1) remains unaffected, hence the rights and freedoms spoltout therein remain as before. Our interest in this petition centers on the freedom ofassociation which, under the present multi-party system, includes the formation ofpolitical parties. Clause (2) was also unaffected by the amendment save that it nowbecame clause (4). In between there are new clauses (2) and (3) which it is necessary toset 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 forregistration if by its constitution and policy –(a) It aims to advocate or further the interests of -(i)(ii)(iii)Any religious belief of group;Any tribal, ethnic or racial group;Only a specific area within any part of the United Repulic;207

(b) It advocated the breaking up of the Union constitutions the UnitedRepublic;(c)(d)(e)It accept or advocates the use or force or violence as a means of attainingits political objectives;It advocates or aims to carry on its political activities exclusively in onepart of the United Republic; orIt does not allow periodic and democratic elections of its leadership.(3) Parliament may enact legislation preseribing conditions, which will ensurecompliance by political parties with the provisions of sub- section (2) inrelation to the people’s freedom and right of association and assembly.Pursuant to clause (3), Parliament enacted the Political Parties Act, 1992 providing forthe registration for political parties and other matters. Clause (2) above was lifted in itsentirety 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 doneupon fulfillment of the conditions prescribed in s. 9; full registration is effected afterfulfillment 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 beregistered as voters for the purpose of parliamentary elections from eachof at least ten Regions of the United Republic out of which at least towRegions are in Tanzania, Zanzibar being one Region each from Zanzibarand Pemba; and(c) it has submitted the names of the national leadership of the party and suchleadership drowns its members from both Tanzania, Zanzibar andTanzania Mainland:(d) it has submitted to the Registrar the location of its head office within theUnited Republic and a postal address to which notices and othercommunications may be sent.208

It is contended by the petitioner that ss. 8, 9 and 10 of the Political Parties. Conditions onthe formation of political parties and thereby inhibiting enjoyment of the freedom ofassociation assented in Art. 20 (1). It is further contended that Art. 20(2) and (3) fromsection derive are for the same reason unconstitutional. I am therefore invited to strikecourt Art 20(2) and (3) of the institution as well as ss. 8,9,10 and 15 of the PoliticalParties 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 UnitedRepublic unless he –(a) has attained the age of forty years: and(b) is otherwise qualified for election as a Member of the National Assembly orof the (Zanzibar) House of Representatives.As amended by the Eighth Constitutional Amendment Act, the above paragraphs areretained 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 tocandidacy for the National Assembly in Art. 67 and Art. 77 as well as for local council ins. 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 apolitical 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 thegovernment of the country, either directly or through freely chosen representatives, inaccordance with procedure provided by or under the law.I am therefore called upon to strike out para (d) in Art. 39 and wherever else therequirement for membership of and sponsorship by a political party occurs.As stated earlier the issue of immutability turns on Parliament’s power or amendthe 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 of209

his birth and are therefore prior to the State and the law. In our times one method ofjudging the character of a government is to look at the extent to which it recognises andprotects human rights. The raison d’etre for any government is its ability to secure thewelfare of the governed. Its claim to the allegiance of the coverned has be in terms ofwhat that allegiance is to serve.Allegiance has to be correlative with rights. Modern constitutions like our own haveenacted fundamental rights in their provisions. This does not mean that the rights arethereby created; rather it is evidence of their recognition and the intention that theyshould be enforceable in a court of law. It can therefore be argued that the very decisionto translate fundamental rights into a written code is by itself a restraint upon the powersof 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 bythe State in relation to any activity that an individual can engage. Although constitutionalguarantees are after couched in permissive terminology, in essence they imposelimitations on the power of the State to restrict such activities. Moreover, Basic orFundamental Rights of individuals which presently stand formally incorporated in themodern constitutional documents derive their lineage from end are traceable to theancient Natural law.Our Constitution confers on Parliament very wide powers of amendment but thosepowers 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 thisConstitution (emphasis added)(2) For the purpose of construing the provisions of sub – section (1), references toalteration of any provision of this Constitution or of any law include references to theamendment or modification, of those provisions, suspension or repeal and replacement ofthe provisions or the re – enactment of the provisions or the re – enactment ormodification in the application of those provisions.These powers are evidently wide. It has to be accepted, in the first place, that Parliamenthas power to amend even those provisions providing for basic human rights. Secondly,that power is not confined to a small sphere.210

It extends to modification of those provisions, suspension or repeal and replacement orsame, re – enactment or modification in the application thereof. Drastic as some of theseterms may sound, I still do not believe that they authorize abrogation from theConstitution of these rights. The provisions of Art. 98 should be read in the light of theclawback 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 thisConstitution, which stipulates the basic human rights freedoms and duties shall beconstrued as invalidating any existing law or prohibiting the enactment of any law or thedoing of any lawful act under such law, making provision for –(a) ensuring that the rights and freedoms of others or the public interest are notprejudiced 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 orutilization 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 anycivil or criminal proceeding;(d) the protection of the reputation, rights and freedoms of others or the private livesof persons involved in any court proceedings, prohibiting the disclosure ofconfidential information, or the safeguarding of the dignity, authority andindependence 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 thenational 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 ordinarytimes in relation to individuals who are believed to be conducting themselves in a mannerthat endangers or compromises national security. We may also refer to Art. 97(1) whichprovides in part –211

(1) subjected to the other provisions of this Constitution, the legislative powerof Parliament shall be exercised through the National Assembly….Reading all these provisions together, it occurs to me that Parliaments power in relationto the amendment of the provisions under part III of Chapter One of the Constitution canonly be exercised within the limits of Art.30(2) and Art. 31. Hence, even if it is asuspension or a repeal and replacement it must be justifiable within the scope of the twoprovisions. I have therefore come to the conclusion, and Mr. Mussa concedes, thatParliament’s powers of amendment are not unlimited. It should be recognized, on theother hand, that society can never be static. New times bring with them new needs andaspirations. Society’s perception of basic human rights is therefore bound to changeaccording to changed circumstances, and that makes it imperative for Parliament to havepower to alter every provision of the Constitution. What remains immutable, therefore, isthe 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 theconstitutional limits, beginning with Art. 20 (2) and (3). The former does not abrogate orabridge 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 registrationand 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 oruncontrolled liberty wholly freedom restraint, for that would lead to anarehy anddisorder. Indeed, in your country like ours, nothing could me more suicidal that to licenceparties based on tribe, race or religion.The problem with Art. 20(3) is even less apparent. It is an enabling provision givingParliament power to enact a law for the registration of political parties and for ensuringcompliance with Art. 20(2) by those parties. It does not expressly tell Parliament what towrite 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 forcomment under the second issue. Next is Art. 39 and allied articles and provisionsrelating to presidential, parliamentary and local council candidacies.Once again, I am unfortunate in having say that these amendments were within thepowers of the Parliament. They do not abrogate but merely modify the application ofArt.21(1) by providing that participation in national public affairs shall be throughpolitical parties. As seen earlier, modification in application is covered under Art. 98(2). Ialso think that the amendments are within the ambit of Art. 30(2) if public order be takenas having supplied the inspiration.212

These amendments were, therefore, validly made. It should be understood, however, thatI am at this juncture talking of validity in strict legal terms; the amendments areotherwise 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 heldthat the impugned constitutional amendments were validly made, I do not have toconsider whether such amendments are “law” within the meaning of the article. I haveread in this connection the interesting arguments in the cases of Golaknath v. State ofPunjab (1967) 2 SCR 762 and Kesavananda v. State of Keral (1973) Sup. SCRI, but inview 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 thePolotical Parties Act. Much effort had gone into this matter when I was obliged to admitthat 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 fororders 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 theapplication were that the Registrar was biased in refusing to register the Democratic Partyand that the Political Parties Act (apparently the whole of it) was unconstitutional andvoid. He was praying for orders to quash the Registrar’s decision and to direct him toreconsider 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 pendingbefore the Court of Appeal a Civil Appeal No. 24 of 1994, in which the first ground ofappeal states:-The learned judge erred in law in failing to hold that section 8 and 10 of thePolitical Parties Act, 1992, Act No, 5 of 1992 are violative of article 13 (6) (a) of theConstitution of the United Republic of Tanzania and thereof null and void on the groundthat they do not provide for fair hearing before the Second Respondent’s decision torefuse 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 slightvariation, namely, to strike out ss. 8, 9, 10, and 15 of the same Act. Inother words a suit in which the matter in issue is substantially in issue inanother suit between the same parties is pending in another court in the213

country. It seems also that the Dar es Salaam suit was instituted earlierbecause the record of this petition shows that its trial was being put off toawait the outcome of the former. In these proceedings we do not have aprescribed procedure but we have invariably invoked and been guided bythe provisions of the Civil Procedure Code, 1966. Section 8 of the Codeprovides thus:-8. No court shall proceed with the trial of any suit in which the matter in issue is alsodirectly or substantially in issue in a previously instituted suit between the sameparties, or between parties under whom they or any of them claim litigating underthe same title where such suit is pending in the same or any other court inTanganyika 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 concurrentjurisdiction form simultaneously trying two parcelled suits in respect of the same matterin issue. It goes on to claim, citing a 1919 obsoure authority, that is section enacts merelya rule of procedure and a decree passed in contravention of it is not a nullity and cannotbe disregarded in execution proceedings. I think, however, that this might be true wherethe 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 trialof the subsequent suit. The word “suit” has been held to include “appeal” see RajSpinning Mills v.A.G. King Ltd (1954) A. Punj. 113. The “matter in issue” in the provision has also beenconstrued as having reference to the entire subject matter in controversy between theparties 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 EasternAfrica in Javda Karson v. Harman Singh Bhogal (1953)20 EACA 74 when they wereconsidering s. 6 of Kenya Civil Procedure Ordinance which is again in parimaterial withour s. 8.The case before me is, of course, a novelty. Like the eye of a butterfly, it is a compositionof several petitions wrapped up into one. When considering the expression “matter inissue” 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 thesecircumstances the second issue is severable as it could, indeed have been tried in aseparate suit. In the circumstances of this case “matter in issue” must be taken to bematter in issue in each of the six issues framed and I am satisfied that the same matter isin 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 thatthe provisions of s. 10 of the Indian Code were mandatory and left no discretion to the214

courts in respect of the stay of suits when circumstances are such as to invoke theoperation of that sections. It was further held that one test of the application of the to aparticular case is whether on the final decision being rouched in the previous suit suchdecision would operate as res judicate in the subsequent suit. Indian decisions arecertainly not birding on this Court, but they deserve the greatest respect where theyexports a provision which was previously our own and which remains in pari materialwith 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 incommon sense that I consider myself entitled to rely on these decisions. In so doing, Ihold that the provisions of s. 8 our Code are mandatory and provide no room fordiscretion in circumstances where it is evocable.It is evocable in the instant case. Moreover, there is no doubt that the final decision in thepending appeal would operate as res judioatra in the instant petition. The question is notwhether I am in a position to devide the matter ahead of the Court of Appeal; courts oflaw are not racecourses. The point is that I am bound to stop in my tracks and let theprevious suit proceed to finality because the decision on the matter in issue would operateas res judicate on the same matter in the suit before me. I will therefore stay the desionthe 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. Ihave two observations to make in this connection. First, it must be realized that theconstitutionality of a provision or statute is not found in what could happen in itsoperation but in what it actually provides for.Where a provision is reasonable and valid the more possibility of its being abused inactual 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 theabove provisions reflected generally on what could happed in their operation rather thanon what they actually provided for. I was generally referred to the decision of the Courtof 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 aperson 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 andimplementational and their constitutionality can only be challenged if they were nowithin the power of the Legislature to enact them.Secondly, and most importantly, have unfortunately come to doubt thepetitioner’s standing in this issue. As stated before, our Constitution confers a doublecapacity on every person – his personal and his community capacities. Now, in whatcapacity did the petitioner take up these provisions? It cannot be in his personal capacitybecause there is nothing in the provisions or any of them which is shown to have215

contravenes, is contravening or is likely to contravene his right to receive or impartinformation.The contravention has to be read in the provisions themselves. It transpires that thepetitioner’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 misuseof the powers granted y s. 25 the relevant provision in that connection has nothing to dowith the validity of that provision as such.What would be relevant is whether Parliament had no power to grant those powers. Asfor the misfortunes of “Michapo” and “Cheka” the doors were open for the option ofjudicial review but it seems better option were found. Can we alternatively say that thisissue 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 otherwords, the general public, or section thereof, must be seen to be aggrieved by the state ofthe 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 thereis no evidence of public agitation against that law. And by “public” I do not mean merelynewspaper editors but the Tanzania public generally.Laconically, whatever ills this law be identified with appear to be overshadowed by theunprecedented upsurge of private newspapers in recent years. As stated in Sanjeey Cokemanufacturing Co v. Phaant Coking Coal Ltd. AIR 1983 SC 239, court are not authorizedto make disembodied pronouncements on serious an cacudy issues of constitutionalpolicy without battle lines being properly drawn. Judicial pronouncements cannot beimmaculate local conceptions, it is but right that no important point of law of could bedecided without a proper issue between parties properly in ranged on either side and acrossing of the swords.It is inexpedient for the Court to dolve into problems which do not arise and expressopinion 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 thePolitical Act touching on assemblies and processions. Under s. 40 of the former a permitis necessary to organize an assembly or procession in a public place.The permit is grantable by the District Commissioner. Similarly, political parties requirea permit from the District Commissioner to hold public meetings pursuant to theprovisions of s. 11 (1) of the Political Parties Act. Section 41 of the Ordinance empowersa police officer above the rank of inspector or any magistrate to stop or prevent anyassembly or procession if the holding or continuance of it “is imminently likely to cause abreach of the peace, or to prejudice the public safety…” The police officer or magistratemay therefore give orders, including orders for the dispersal of the assembly orprocession. 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, orone held in contravention of the conditions there or in disregard of orders by the police ormagistrate. 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 withthe 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 bebetter 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 thisfalls under s. 40 of the Guidance under 18(1) of the Act, Next there is control of themeetings and processions and this falls under s.41, the exercise of that power beingvested in the police and the magistracy. Finally, we have the criminal law provisions isss. 42 and 42. In considering the question of constitutionality these distinctions have to ekept 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 sportingassemblies do not require a permit; by virtue of G.N. No 98 of 1960 assemblies convenedby rural local authorities within the areas of their jurisdiction do not require a permit andby virtue G.N No. 237 of 1962 assemblies convened by Municipal or Town Councilswithin the areas of their jurisdiction do not require permits either; but all these eventsattract police and registries supervision. Let us now look at the character of the threedevising 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, shallfirst make application for a permit in that behalf to the District Commissioner…and if theDistrict Commissioner is satisfied, having regard to all the circumstances,. that theassembly or procession is not likely to cause a breach of the peace…he shall, subject tothe provisions of sub- section (3), issue a permit…Section 11(1) of the Political Parties Act is to the same effect although it does notexpressly set out all that is in the above provision. These provisions may then econtracted with the provisions. These provisions may then be contrasted with theprovisions of Art 20 (1) which states in part:-(1) Subject to the laws of the land, every person is entitled to freedom of peacefulassembly, association and public expression, that is to say, the right to assemble freelyand peaceably.217

The Constitution is basic or paramount law of the land and cannot be overriddenby any other law. Where, as in the above provision, the enjoyment of a constitutionalright is “subject to the laws of the land,” the necessary implication is that those laws mustbe lawful laws. A law which seeks to make the exercise of those rights subject to thepermission of another person cannot be consistent with the express provisions of theConstitution for it makes the exercise illusory. In this class are s. 40 of the Police ForceOrdinance and s. 11 (1) of the Political Parties Act. Both provision hijack the right topeaceful assembly and precession guaranteed under the Constitution and place it underthe personal disposition of the District Commissioner.It is a right which cannot be enjoyed unless the District Commissioner permits. That isprecisely the position that was encountered in ole Pumbun where the right to sue theGovernment could not be exercised says with the permission of the Government. TheCourt of Appeal was prompted to say:-…a law which seeks to limit or derogate from the basic rights of the individual ongrounds of public interest will be saved by Articles 30 (2) of the Constitution only if itsatisfies two essential requirements: First such a law must be lawful in the sense that it isnot arbitrary.It should make adequate safeguards against arbitrary decision, and provide effectivecontrols against abuse by those in authority when using the law. Secondly, the limitationimposed by such law must not be more than is reasonably necessary to achieve thelegitimate object. This is what is also known as the principle of proportionality ..if thelaw…does not meet both requirements, such law is not saved by Article 30 (2) of theConstitution, it is null and void.Section 40 does not meet thee requirements. It is in the absolute discretion of the DistrictCommissioner to determine the circumstances conducive to the organization of anassembly or procession; there is no adequate or any safeguards against arbitrary exerciseof that discretion and there is no mechanism for challenging his decisions, exceptprobably by way of judicial review which is tortuous and unbeneficial for the purpose ofassemblies and processions.I have easily come to the conclusion that the requirement for a permit infringes thefreedom of peaceful assembly and procession and is therefore unconstitutional. It is notirrelevant to add, either, that in the Tanzania context that freedom is rendered the moreillusory by the stark truth that the power to grant permits is vested in cadres of the rulingparty.Coming to s. 41, I am of the view that the provision does not operate to take awaythe right to held assemblies or processions. If only empowers the police and themagistracy to step in for the preservation of peace and order. The provision is thus savedby Art. 3 (2) (b), it being in furtherance of the State’s normal functions of ensuring publicsafety and public order and is reasonably justifiable in democratic society. As rightlyremarked by Mr. Mussa the enjoyment of basic human rights presupposes the existence218

of law and order. I provision like s. 41 is therefore a necessary concomitant to therealization of these rights. Moreover, there is inherent in the provision a safeguard againstarbitrary use.It comes into play when the holdings or continuance of an assembly or procession “ispermanently likely to cause a breach of the peace, or to prejudice the public safety or themaintenance of public order and to be used for any unlawful purpose, “and thereforemeets what is termed the” clear and present danger test. In Muhammad Nawaz Sharifcited earlier, Saleem Akhtar, J. said, at pp. 832 -833:-Diary restriction (on basic rights) must pass the test of reasonableness and averridingpublic interest. Restriction can be imposed and freedom may be curtailed provided it isjustified 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 ofimminence extremely high.Section 41, in my view, is conditioned on a clear and present danger where thesubstantive evil is extremely serious and the degree of imminence extremely high. Asituation befitting the application of the provision can be found in the Guyanese case ofC.R Ramson v. Lloyed Barker and the Attorney General (1983) 9 CLB 1211. That casearose 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 acolleague 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 doingthere, and was told “that is my business.” Other policemen came up and surrounded theplaintiff, who was then jabbed several times in the ribs with a basin by another policemanwho ordered him into the car. The plaintiff and his colleague then got into the carunwillingly and drove away.The plaintiff later brought action alleging, inter alia, an infringement of his rights tofreedom of assembly, expression and movement. It was held by the Court of Appeal thatthere 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 hindranceor depravation of these constitutional freedoms.These factors apart, it is equally apparent that the petitioner admits the legitimaterule of the police at assemblies and processions although, somehow, he does not realizethat 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 ofpublic rally and the right to make a peaceful demonstration or procession without apermit from anybody except that he should just inform the police before doing so(my emphasis).219

I would not wish to believe that by this prayer it is intended that the police shouldattend assemblies and precessions to applaud the actors and fold their arms in the face ofan 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 andthe latter punishes the same, Art. 30 (2) (a) and (b) of the constitution empowers theLegislature to enact legislation for ensuring that the rights and freedoms of others or thepublic interest are not prejudiced by the misuse of the individual rights and freedoms andfor 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 ofpolice and magisterial powers under the other provisions. I consider the provisions validas well.As this stage I will proceed to show the significance of the distinction I have beenmaking. I have held that the requirement for a permit is unconstitutional but not thepolice – magisterial and penal role.The crucial question now is whether these aspects cab be severed. Severance is providedfor under Art. 64(5) which states that “any other law inconsistent with the provisions ofthe Constitution…shall, to the extent of the inconsistency, be void, “It is thereforeestablished that where the valid portion is severable from the rest, that portion will bemaintained provided it is sufficient to carry out the purpose of the Act. Delivering thejudgment 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 partdeclared invalid that what remains cannot independently survive, or, as it has sometimesbeen put, whether on a fair review of the whole matter it can be assumed that theLegislature would have enacted what survives without enacting the part that is ultra viresat all.I am in no doubt whatsoever that the permit aspect cab be expunged and expelledfrom the law without prejudicing the rest. This is illustrated by the fact that thesupervisory aspects already operate independently here a permit is not required. It isevident, therefore, that the Legislature could have enacted the supervisory aspectswithout enacting the permit is unconstitutional and void, I direct the provisions of s. 40of the Police Force Ordinance and s. 11(1) (a) of the Political Parties Act, and allprovisions relating thereto and connected therewith, shall henceforth be read as if allreference to a permit were removed. It follows that from this comment is hall be lawfulfor nay person or body to convene, collect, form or organize and address an assembly orprocession in any public place without first having to obtain a permit from the DistrictCommissioner.220

Until the Legislature makes appropriate arrangements for this purpose, it shall besufficient for a notice of such assembly or procession to be lodged with the police, beingdelivered 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 ofDodoma with three counts, the first of which alleged “refusing to desist from convening ameeting or assembly after being warned not to do so by police officers contrary tosections 41 and 42 of the Police Force Ordinance, Cap. 322. They were convicted andfined 500/= each.They appealed to this Court and it was contended, inter alia, that s. 41 wasunconstitutional. Mwalusanya, J. agreed and said; “I construe section 41 of the PoliceForce Ordinance to be void. From now onwards this section is detected from the statuteBook.” 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 thatdecisions, yet I cannot avoid to show, albeit briefly, why I find that decision difficult togo by. The learned judge did not merely hold s. 41 to be unconstitutional; he went furtherand 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 haveaccess to the documents they – required for their defense was a fundamental defectwhich is not curable…The error is so fundamental that it has rendered the whole trial anullity.This is significant indeed. It is established practice that where a matter can bedisposed of without recourse to the Constitution the Constitution should not be involvedat all. The Court will pronounce on the constitutionality of a statute only when it isnecessary for the decision of the case to do so; Wahid Munwar Khan v. State AIR 1956llyd. 22 In that case a passage from Coday’s Treatise on Constitutional Limitations wasalso cited in these terms:In any case where a constitutional question is raised, though it may belegitimately presented by the record, yet if the record presents some other clear groundthe court may rest its judgment on that ground alone., if the other questions areimmaterial having regard to the view taken by the court.The decreme Court of Zimbabwe expressed the same view in Minister of HomeAffairs 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 aremedy depends upon it; if a remedy is available to an applicant under some otherlegislative provision or on some other basis, whether legal or factual, a court will usually221

decline to determine whether there has been, in addition, a breach of the Declaration ofRights.And here at home the Court of Appeal had this to say in attorney General v. W.KDutambala, Criminal Appeal NO 37 of 1991 (unreported)We need hardly say that our Constitution is a serious and solemn document. Wethink that invoking it and knocking down laws or portions of them should be reserved forappropriate and really serious occasions.The court continued:…. It is not desirable to reach a situation where we have been disposed of on theground that the trial was a nullity without going into the constitutionality of s. 40. It isindeed curious that a trial which was adjudged a nullity could still provide the basis forstriking down s. 41. On these grounds and others, I was unable to benefit from thedecision of my learned brother.The fifth issue takes us back to the amendments to the Constitution and elsewherewhich make membership of and sponsorship by a political party mandatory for a personto contest presidential, parliamentary or local authority elections. I held that theamendments was constitutionally valid but I reserved by position on their practicalimplications until this stage. It is essential for the purpose of the present exercise, and forcase 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 governmentof the country, either directly or through freely chosen representatives, in accordancewith 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 belongto any party or organization, or for any political party to be refused registration by reasononly 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 UnitedRepublic 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 hiscountry implies three consideration; the right to the franchise, meaning the right to elect222

his representatives; the right to represent, meaning the right to be elected to law makingbodies; 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, ofcourse, to the qualifications which expediency may dictate for the exercise of theserights, e.g literacy and age. But while accepting the relevancy of such qualifications it hasto be admitted in the first place that the concept of basic human rights has a utilitarianaspect to it: to whom are these rights to be usefull? Harold Laski ( A Grammar ofPolitics, 1967: 92 ) respond thus:There is only one possible answer. In any state the demands of each citizen for thefulfillment of his best self must be taken as of equal worth; and the utility of a right istherefore its value to all the members of the state. The rights, or instance, of freedom ofspeech does not mean for those in authority. Or for members of some special church orclass. Freedom of speech is a right either equally applicable to all citizens withoutdistinction or not applicable at all.These remarks are no more applicable in political philosophy than they are in humanrights jurisprudence. The matter is brought into focus if we substitute the right toparticipate 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’scountry is not reserved for those in authority, or for members of some special class orgroups, but it is a right either equally applicable to all citizens without distinction or notapplicable at all.This utilitarian factor is writ large in Art. 21 (1) for it speeks of “every citizen” beingentitled to participate in the government of his country. It could easily have said “Everymember 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 theone party era. At that time all political activity had to be conducted under the auspicesand control of the Chama cha Mapinduzi, and it could have been argued that this left noroom 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 forindependent 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 wasdeliberately rephrased to accommodate both situations. It is illogical for a law to providethat no person shall be compelled to belong to a political party and in the sate breath toprovide 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 fromparticipating in the government of their county, it could easily have done so vide thesame Eighth Constitutional Amendment Act by receiving the generality in Art. 21 (1).223

The position as I see it, is now this; By virtue of Art. 21 (1) every citizen isentitled to participate in the government of the country, and by virtue of the provisions ofArt. 20 (4) such citizen does not have to be a member of any political party; yet by virtueof Art.39( c ) and others to that effect, no citizen can run or office unless he is a member of andsponsored by a political party. This is intriguing, I am aware that the exercise of the rightunder 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 ofthe right of participation through a political party only is not a procedure but an issue ofsubstance.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 chosenrepresentatives. “ It is contrary to every notion of free elections if non – party citizens arecompelled to vote for party candidates. In the midst of this unusual dilemma I had to turnto the canons of statutory and constitutional interpretation.When the framers of the Constitution declared the fundamental rights in Part IIIof Chapter one thereof, they did not do so in vain, it must have been with the intentionthat these rights should be exercisable. It is therefore established that the provisions ofthe Constitution should always be given a generous and purposive construction. In A.Gof Gambia v. Jobe (1985) LRC (Const) 556, 565, Lord Diplock said:A constitution and in particular that part of it which protects and entrenches fundamentalrights and freedoms to which all persons in the State are to be entitled, is to be given agenerous and purposive construction.This echoes what was said earlier in British Coal Corporation v. The King (1935) AC500, 518, to the effect that in interpreting a constituent or organic state of the constructionmost beneficial to widest possible amplitude of its power want be adopted. And not muchlater, in James v. Commonwealth of Australia ( 195) AC 578, 614 Lord Wright, M.Rsaid:It is true that a Constitution must not be construed in any narrow and pedantio sense. Thewords used are necessarily general, and their full import and true meaning can often beappreciated when considered, as the years go on, in relative to the vicissitudes of factwhich from time to time emerge. It is not that the meaning of the word changes, but thechanging circumstances illustrate and illuminate the full import of the meaning.This approach is directed principally at resolving difficulties which may beinherent in a single provision. The strategy, according to these authorities, is to approachthe 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 theconstitution enacting a fundamental right appears to be in conflict with another provision224

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, andno one particular provision destroying the other but each sustaining the other; seeMuhammad Nawaz Sharif (above), p. 601.If the balancing act should succeed, the Court is enjoined to give effect to all thecontending provisions. Otherwise, the court is enjoined to incline to the realization of thefundamental rights and may for that purpose disregard even the clear words of aprovisions 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 beexcluded by any other Article of the constitution or may be subject to an exception laiddown in some other Article. In such cases it is the duty of the Court to construe thedifferent Articles in the Constitution in such a way as to harmonies them and try to giveeffect to all the Articles as far as possible and it is only if such reconciliation is notpossible, 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 lawjurisdictions. They rest, above all, on the realization that it is the fundamental mightwhich 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 UnitedStates said:Although the spirit of an instrument, especially a Constitution, is to the respected not theless than its letter, yet the spirit is to be collected chiefly from its words. It would bedangerous in the extreme to infer from extrinsic circumstances that a case for which thewords of an instrument expressly provide shall be exempt from its operation.Where words conflict with each other, where the different clauses of an instrument bearupon each other and would be inconsistent unless the natural and common words arevaried, construction becomes necessary, and a departure from the obvious meaning ofwords is justifiable.But if in any case the plain meaning of a provision, not contradicted by any otherprovision in the same instrument is to be disregarded, because we believe the framers ofthat 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 theprovision 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 alliedamendments are restrictions on the exercise of a fundamental right and not fundamentalin themselves. It is the fundamental rights, but not their restrictions, that this Court isenjoined to guard jealously. Secondly, the scheme of our Constitution contemplates the225

full exercise of the fundamental rights enacted therein save as they may be limited interms 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 definitionof “alteration” in Art. 30(2). Thirdly, the literal application of the amendments could leadto monstrous and nationally injurious results. It is believed that there are between threeand four million people in this country who subscribe to some political party, leavingwell 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” atthis juncture in the country’s history cannot be serious. Apart from Chama cha Mapinzuziwhose 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 governinginto the hands of members of a class and to render illusory the emergence of a trulydemocratic 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 inhaving party and independent candidates in any election.For everything I have endeavoured to state and notwith- standing the exclusionaryelements to that effect in Articles, 39, 67 and 77 of the Constitution as well as s. 39 of theLocal Authorities (Elections). Act 1979, I declare and direct that it shall be lawful forindependent candidates, along with candidates sponsored by political parties, to contestpresidential, parliamentary and local council elections. This will not apply to the councilelections due in a few days.We now come to the sixth and final issue. A declaration is sought to the effectthat it is unconstitutional for the President to appoint Zanzibaris to head non – unionministries and departments on the Mainland.This matter invites a bit of the union’s history. When Tanganyika and Zanzibar united in1964 the Constitution of the former was adopted as the anterim Constitution of the UnitedRepublic, modified as to provide for a separate government for Zanzibar in matters otherthan those reserved to the union Government. At the same time the Government ofTanzania was abolished. The union operated under interim constitutions until thepromulgation of the 1977 Constitution.Article 4(3) of the Constitution provides for the divisions of governmentalfunctions on the basis of union end non- union matters. Authority in respect of all unionmatters as well as non – union matters in and for the Mainland is vested in the UnionGovernment by Art. 34(1).Likewise all executive power of the United Republic with respect to union matters andwith respect to non – union matters in and for the Mainland is vested in the President. Hemay exercise that power either directly or through delegation to other persons holdingoffice in the services of the United Republic. The President is also empowered toconstitute and abolish officers and, pursuant to the provisions of Art. 36 (2), he has power226

to appoint persons to offices in the public services of the United Republic subject to theother provisions of the Constitution, In the exercise of the functions of his office thePresident has unfettred discretion apart from complying with the provisions of theConstitution and the law. Article 55 (1) additionally empowers the President to appointMinisters who “shall be responsible for such offices as the President may from time totime …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 thatside.It was argued by Mr. Mbezi that the structure of the Constitution points to a dualrole for the Union Government, i.e as a Government responsible for Union Matters and asa Government responsible for non- Union Matters for and in the Mainland. He alsosubmitted that the division of union form non- union matters could not have been donewithout a purpose. In his the fact that they are constitutionally placed under the UnionGovernment 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 Constitutioncompelled the President not to appoint Zanzibar to such position and that it wouldactually be discriminatory if he did not do so. In his view the exercise of the power ofappointment was a matter of policy but not one founded on the Constitution.The issue of Zanzibar in “Mainland” ministries is presently a matter ofconsiderable interest, and seems to derive more drive from the polarized politicalsituation which culminated in the ill-fated parliamentary notion for a government ofTanganyika. But sentiments apart, one would certainly with to know the juridical positionof non – union matters in and for the Mainland.The dualism factor asserted by Mr. Mbezi was recognized and articulated by the Court ofAppeal in Haji v. Nungu & Anar (1987) LRC (Coast) 224 where Chief Justice Nyalalifurther stated ( at 231) that in the being structure of the Constitution there are “matterswhich concern exclusively that area which before the Union constituted what was thenknown as Tanganyika…” He went on to say that “These matters under the scheme of theConstitution fall under the exclusive domain of the Government of the United Republic.The Revolutionary Government of Zanzibar has no jurisdiction over these matters.” Ofcourse that case was concerned with a different matter – the jurisdiction of the HighCourt of the United Republic in election petitions – yet, even with that reference to theexclusive domain of the Government of the United Republic over Tanganyika matter, Icannot read a suggestion o the unionization of those matters. There are various types ofconstitutions which are classified as federal and ours court carry that appellation in theabsence of a standard or ideal type of a federal constitution. It is not uncommon for suchconstitutions to enumerate the areas reserved to the federate, leaving the rest to thefederal or central government.227

The founders of our Union could easily have done that. They could have enumerate thespheres in which the Zanzibar.Government would exercise power and leave the rest to the Union Government. In thatcase 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 havethen been a union matter. But that was carefully avoided. Instead the Constitutionenumerates union matters only and expressly declares the rest to be non – union; and thisis so, according to Art 4(3), “For the purpose of the more efficient discharge of publicaffairs…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 UnionGovernment does not derogate from their character, They remain “matter which concernexclusively that area which before the Union constituted what was then known asTanganyika, and is presently referred to under the constitution as Tanzania Mainland, “toquote 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 UnitedRepublic, the appointment of Zanzibaris to positions of authority in non – union mattersin 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. Theprovisions to which I have referred, notably Art. 36(2) and Art. 55(1), do not limit thePresident 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 thisConstitution” in Art. 36 (2) and this would lead to the divisions of union and non – unionmatters in Art. 4(3). It can then be suggested that t keep the division effective there is animplied 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 moreinferences, however at attractive, and I apprehend that this would require proof beyondreasonable doubt. I have therefore not found myself in a position to make the declarationsought and I demist from doing so.Finally, each party prayed for costs, I cannot find my way to award any. In thefirst place the record suggests that this was a legal aid case and I don’t quite see how thequestion on costs. Additionally, I think this was a balanced case where both sides wonand lost. The parties will therefore bear their respective costs.(E.S.K RUGAKINGIRA)JUDGEDODOMA24/10/1994228

I hereby certify that this is a true and correct copy of the original.DISTRICT REGISTRARDODOMA27/10/19944. PROCEDURE1. American Cyanamid v Ethicon Ltd (1975) 1 AIIE. R 5042. Andrew W.Nkuzi v Tanzania Sisal Authotity, Minc. Civ Cause No. 3 of 1994, HCat 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. A7795. 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 19977. Kahama Goldmines v Minister for Energy, Misc. Civ Cause 127 of 1989, HC atDar 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 Dodoma12. Pumbun & Anor. V AG, Civil Appeal No. 32 of 1992.THE UNITED REPUBLIC OF TANZANIA229

IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMMAIN REGISTRYMINC..CIVIL CAUSE NO ……………… 39 OF 97JOSIAHN BARTHAZAR BAIZI & 138 OTHERS……….. APPLICANTSVERSUSATTORNEY GENERAL & OTHERS……………….. RESPONDENTSRULLINGMACKANJA. J.Josiah Balthazar Baisi and 137 others have lodged achamber application in which they pray for leave to apply for the prerogative orders ofprohition and mandamus. The application is supported by the affidavit of the said JosiahBatlthaza Baisi, to whom I will henceforth refer alternately by name and as the firstapplicant.The affidavil supporting the application contains sixteen paragraphs. The first twoare devoted to lay the foundation for the communality of interest which has galvanizedthe applicants to act in unison. Indeed it also appears that it is that common interest, if itexists at all, they seek to protect. It is in that behalf that Josiah Balthazar Baisi has beenauthorized 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 COMMITTEEAGAINST PROPERTY DEPRIVATION WITHOUT FULL AND FAIRCOMPENSATION THROUGH DANISH “AID” TO TANZANIA.It seems as he swears, that the first application is conversant with the facts towhich 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 owninterest 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 rightof 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 thatparcel of land are Annexture IA and IB to the applicant’s affidavit. Point “O” referred toin 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 theapplicant developed the land by erecting both commercial and residential premises, andthat he executed those works without warning or objection from all or any of therespondents.Paragraphs 9, and 10 specifically relate to matters of a general nature concerninginterest 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 theother applicants lie between 6.22 and 23.12 miles from the Askari statue and within adistance of between seventy – five (75) feet and four hundred (400) feet from the centreof the Morogoro highway. According to paragraphs 9 and 10 of the affidavit the bulk ofthe lands occupancy, and that the rest of those lands are held under rights of occupancygranted under the Land Ordinance Cap. 113.In common with the first applicant’s own land, it is sworn that the other parcels of landhave been developed without let or hindrance from anyone, with residential andcommercial buildings and farms.The peaceful possession of the suit parcels of land changed into uncertainly whensometime 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 demolishthem. It seems that it was not desired to effect that intention immediately.For it was on Friday, the 11 th day of July, this year that the Deputy Minister of Worksannounced Government resolve to effect that intention when he made a statement in theNational Assembly which according to paragraph 12 of the affidavit contained thefollowing directives, that is to say:-(i)(ii)(iii)(iv)(v)That Government intends to undertake extensive expansion of the MorogoroRoad between Ubungo and Kimara/Temboni.That the Ministry of Works required the applications to demolish, at their owncost, their houses, buildings and other structures before 1 st September 1997.That the Ministry of Works would itself carry out the demolition after 1 stSeptember, 1997.That no compensation would be paid to the applicants; andThat 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 inthe print media., annextures marked IIA, IIB, IIC, IID, IIE, IIF, IIG, and IIH, that theDeputy Minister of Works and on behalf of the second and third respondents, repeatedly231

stated that the applicants would not be paid compensation upon the demolition of theirbuildings and other structures.What is more, as sworn in paragraph 15, the respondents have arrogantly ignored theapplicants’ protest. Copy of the letter of protests is annexture III to the affidavit. Theapplicants are now advised by their advocates that the actions threatened by the secondand the third respondents are illegall to the extent that they contravene provisions of thehighways Ordinance, Cap. 167, the land Acquisition Act, 1967 and the Constitution ofthe United Republic. It is in that connection that Professor G. Mgongo – Fimbo, theapplicants learned counsel, has taken out a chamber summons on their behalf that spellsout the reliefs they seek.The respondents have opposed the application, first by notice of preliminaryobjection, 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 frankdisclosure on the following facts:-(a) names of applicants who hold title deeds or describe the propeties of each in asufficient extent as to enable the respondents to prepare their defence;(b) the circumstances leading each of the applications to the occupation of the landwithin the highway corridor and reserve in view of the fact that the occupiersthereof were adequately compensated in the 1970;(c) whether or not the applicants had been issued with building permits fordevelopment of permanent structures thereof;(d) the whole of Dar es Salaam within which the disputed area is located has beendeclared a development area and as such, deemed rights of occupancy have beenextinguished.The first preliminary objection concludes that the affidavit in support of the applicationunfairly prejudices the respondents to making their defence and, to that extent, it shouldbe struck outSecondly, it is averred by the respondents that there are applicants who do notown do not own any property within the Highway corridor and road reserve, andconsequently, that they have no standing to bring the application and that their inclusionis an abuse of the court process.Thirdly, that this is an unfit case to be determined by way o judicial review. That therespondents have noticed that some of the certificates of occupancy issued to some of theapplicants are not genuine.Fourthly, in the alternative and without prejudice to the first three preliminarypoints of objection, the respondents pray the the applicants be ordered to provide securityto cushion the respondents against increased construction costs that will arise out of thedelay in commencing the works due to the applicanats’ objections because on a balanceof convenience the respondents. Are likely to be more adversely affected than the232

applicants. And if I may say now, all that is contained in the counter affidavit that wassworn by Humphrey G. Urio, who, for the time being is the Director of Roads in theMinistry 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 onthem will entail all the this Court is required to do at this preliminary stage of theproceedings. Necessarily, therefore, such a decision will consider the practice andprocedure that govern an application such as this one. In order to be consistent I willconsider the objections serjatim.Mr. Werema, learned Senior State Arrorney, who appears for the respondents andProfessor G. Mgongo – Fimbo who advocate for the applicant, are agreed that thepractice and procedure we apply in applications such as this one are identical to thatobtaining 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 meto consider English case the law when deciding this application. Of course I would havedone so even without such an invitation.It is Mr. Werema’s submission that according to that procedure the affidavit supportingthe application for leave to file an application for prerogative orders must make a full andfrank disclosure of all material particulars in dispute. Failure to do so, he argues, will besufficient ground for the dismissal of the application. He has cited once English decisionin 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 firstapplicant, does no meet that rest because when the Dar es Salaam – Morogoro highwaywas 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 inrepsopect of which compensation was paid. This failure, according to Mr. Werema,indicates that the affidavit supporting the application does not contain a full and frankdisclosure of material facts.Mr. Werama has also pointed out that in a planned area like Dar es Salaam, theTown and Country Planning Ordinance, Cap. 378 required anyone to obtain a buildingpermit before he puts up a building. He contents that there is nowhere in the affidavitsupporting the application where it is disclosed that the applicants lawfully constructedtheir house and other structures which are the subject of this application.There is also the question of the deemed rights of occupancy. Mr. Weremacontends that the applicants have failed to make their case in that regard because theaffidavit of the first applicant does not disclose how the purported deemed rights ofoccupancy were acquired legally.233

Indeed, it is learned Senior State Attorney’s submission that the list of applicants includesnames of people who are not within the road corridor. Their names, he says, are listed inparagraph 6 of their counter affidavit.According to learned Senior State Attorney, the inclusion of such names should lead to afinding that the disclosure is not sufficiently frank as the affidavit includes names ofpeople who are not covered at all.It would appear from his submissions that Professor Fimbo does not view a frankdisclosure of material facts as a basic consideration which has been contravened by hisclient. According to him sections 17A of the Law Reform ( Fatal Accidents andMiscellanious Provisions) Ordinance, cap 360, has not done away with the preliminarycharacter of an application such as this one.He submits that although the Attorney General must now he made a party to theseproceedings, all that is necessary at this sage is for the applicants to establish arguable ortriable issue. He derives support for this proposition from the decision of this Court inMecaiana 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 hasat 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 otherstructures 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 orotherwise for the houses, building and other structures due to be appropriatedfor the purpose of the Highways Ordinance.According to Professor Fimbo evidence that the there are tribal issues includes thefact that the respondents concede in paragraph 14 of their counter affidavit thatGovernment has threatened to demolish the applicants’ houses, buildings andother 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 ProfessorFimbo. I have given a careful consideration to those proposition which I think aresound. They are worth considering although in saying so I do not intend to saythat those propositions alone, singly or in combination, would be sufficientground upon which leave would or would not, be granted. On the other hand, iftaken at face value Mr. Werema’s contention is rather pre – emotive of theapplication for the prerogative orders. What he has urged me to accept are mattersthe legitimate forum of which would be in an application of the prerogativeorders. As I do not intend to prejudice the case one way or the other, I amsatisfied that for the purposes of the present application the applicants have madea sufficiently full and frank disclosure.234

A part from the applicants obligation to make a full and frank disclosureof all material facts on which they rely, I accept Mr. Werema’s submission thatuberrima fides, that is the almost good faith, is required. It is, in fact, a mandatoryrequirement. This position of the law as is applicable in England was made clearas long ago as in the case of R.v. Kansington Income Tax Commissioners, exparte Princess Edmond (1917) IKB 486, But, as pointed out by the learnedauthored of Judicial Review of Administrative Action by S.A De Smith, 2 ndEdition which is the only edition I could lay hands on from our Library, at page439:-“..Uberrima fides is required and leave will not be granted if there has been adeliberate misrepresentation or concealment of material facts in the applicant’saffidavits.I have perused the applicants affidavit with due care. I am satisfied thataffidavit does not show that there is deliberate misrepresentation or concealmentof facts. All that there is in the counted affidavit that tends to indicate that such asituation exists are contentious matters.There is for distance the claim that some of the applicants were compensated in1972; or that yet others have no property within the disputed lands. To me theseare matters that require proof by concrete evidence. I find no evidence in thecounter affidavit that proves these allegations.I am satisfied, therefore, and I find as a fact that the first applicant’s affidavitmeets 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 firstpoint of objection will pre-empt an application for the prerogative orders if suchan application will be filed. Matters that are raised in paragraphs (b) (c) and (d) inthe first objection will have their legistmate place in that other application. By andlarger therefore, the first objection would fail.The second preliminary objection relates to the locus standi of theapplicants. Mr.Werema has argued in this connection that the affidavit of JosiahBalthazar Baisi does not disclose that all the numerous applicants have a right toappear and to be heard in these proceedings, namely that they have no locusstandi. Professor Fimbo has traced the law relating to how the Morogoro Roadbecame a highway and how his clients as owners or reputed owners or peoplebeing in actual possession of land are entitled to compensation before such land isappropriated by the Government. So, to him, his clients have locus standi .I think it is important to make a distinction between locus standi as regardsclaims of an individual nature for a private law remedy and claims the purpose ofwhich is to get a relief or remedy for the public good which is based on public235

law. The present application falls under the second category where an Beforeproceeding to consideration of these matters, something more needs to be saidabout 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 applicanthad some genuine locus standi to appear before it.This they expressed in different ways. Sometimes it was said, usually in relationsto certiorari, that the applicant must be a person aggrieved or having a particulargrievance..; usually in relation to mandamus, that he must have a specific legalright…; 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 wheremandamus was sought, were moving away from the Lewisham Union test ofspecific legal right, to one of sufficient interest..”Lord Diplock shared the same views with Lord Wilberforce as can be seen frompage 636 to 642. Lord Scarman said this, at page 653:-“The interestThe 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 accuratelyreflected in the rules of court, is that in determining the sufficiency of an applicant’sinterest it is necessary to consider the matter to which the application related. It is wrongin law, as I understand the cases, for the court to attempt an assessment of the sufficiencyof 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 groundsfor believing that there has been failure of public duty, the court would be in error if itgranted leave. The curb represented by the need for an applicant to show, when he seeksleave to apply, that he has such a case is an essential protection against abuse o legalprocess. 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 thatis within the discretion of the Court. The natural question that flows from theseconsiderations is, therefore, whether the applicants or any of them have establishedsufficient interest.I am satisfied that they have done so. Firstly, there is the first applicant whose claim issufficiently detailed in his affidavit. Secondly, there are those Mr. Werema has admittedare entitled to compensation. All these have a right to be heard in pursuit of their rights. Itappears that there may be some confusion that hovers around the issue of locus standi236

It seems that this issue once decided, then whoever has been seen to have the rightto be heard during the application for leave will necessarily have that right in theapplication for the prerogative orders. The position is not so for all cases. Locus standican be raised as an issue during the preliminary stage in the application for leave. At thatearly stage the Court may find, in simple cases, that an applicants for judicial review hasno 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 interestto support their claim. It will in these circumstances, be correct at the threshold, to refuseleave to apply. In cases that involve complex issue, the question of sufficiency of interesthas 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 thenbe determined regarding those who passed the test at the threshold stage; Those who canestablish that indeed they had a grievance. So, although public – spirited land ownersmay succeed in an application for or leave on behalf of al larger a group they may not ofnecessity succeed at the stage of the application for those orders if they cannot establishtheir right of standing. In view of the foregoing observations I am satisfied that theapplicants have established a sufficient interest to be able to apply for leave. The secondobjection would accordingly fail.As to the third preliminary objection, that this is an unfit case to be dete-mined byway of judicial review, one may say right from the outset that the answer resides in thepurpose for which prohibition and mandamus is all about.Before I go to that stage. I will revisit submissions by learned counsel. Mr. Werema hassubmitted 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 thosewho will be compensated and that the latter group are already made aware of theGovernment decision in their favour.I understand him to mean that although such people may have grievances, they can get aremedy in private law in the nature of a civil process rather than by way of a public lawremedy through judicial review. Indeed, he went on to say that appears to be the positionbecause 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 areprovided to a remedy because their property in the suit land will appropriated by theGovernment. So that the Government should prevailed upon by way of an order ofprohibition until the sensation is paid, and an order or mandamus to compel the affirmedto any compensation.237

Now, what really is the purpose and essence of the prerogative order ofmandamus? There is no doubt that the order of mandamus may be issued to any person orbody commanding him or them to carry our some public duty.The public duty envisaged in these proceedings is the statutory requirements that have tobe met before private land is acquired for purposes of public roads construction or forexpansion of such roads. Professor Fimbo has made the point that the parcel of land onwhich it is intended to expand the Morogoro highway is owned by his clients it terms ofthe 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. Inaddition, the Township and Country Planning Ordinance defines the word “owner” toinclude “ary other person in actual possession of land”. To me these definitions per se donot bestow uncontroversial rights on the applicants.They have to establish, in view of Mr. Werema’s contention, and in view of the counteraffidavit, that they are not trespassers after the Government is said to have paidcompensation to owners of the same land when it was appropriated for construction ofsame highway in 1972. they are required to establish their title to that land. Of course thiswill not be done in proceedings for judicial review. Indeed the applicant’s must show thatthey have at least a prima facie case for the quantum of their claim for compensationbefore the Government is compelled to effect such payment. Quantum of thecompensation cannot be proved in an application for judicial review.I would therefore agree with Mr. Werema that the issue of payment of compensation inthe peculiar circumstances of this case cannot be justiciable in a proceeding for judicialreview. Once, as I have held, the Government has no statutory duty to pay compensationto anyone who has not established his titled to land so also the Government cannot becompelled is prayed for in the statement to nurtiale the process of compulsory acquisitionof the applicant’s hands under the Land Acquisition Act, 1967. similarly, the applicantshave not shown in their affidavit and in the Statement that there exist circumstanceswhich make justified the issuance of an order of mandamus to allocate alternative plots toall the applicants when they have not shown, by probative evidence that the landearmarked for the road expansion in law belongs top them. They have to establish theirinterest before they can seek a public remedy.The above consideration have made my task easier as regards the remedy that issought by way of the order of prohibition. According to the chamber summons and to theStatement the purpose of that order is to restrain the Government and its agents fromcarrying out expansion of the Morogoro Road and from demolishing the applicants’houses, buildings and other structures before fair and adequate compensation for thesame is paid in full.As have pointed above the applicants right to compensation is inchoate. They have yet toprove it and this cannot be done in an application such as this one. The third objectionwould therefore succeed.238

Finally, Mr. Werema made an alternative prayer, that if the application for leaveis allowed, an order for security be made against the applicants so that they may cushionthe Government against spiraling construction costs that may arise from the applicant’sobstruction.Professor Fimbo considers that such a prayer is strange because orders for security forcosts are aimed at non- resident plaintiffs in terms of Order XXV of the Civil ProcedureCode. I agree, and , that said the prayer for deposit for security fails.Upon the foregoing observations and considerations the application for leave toapply for the orders of prohibition and mandamus fails. It is accordingly dismissed. Therewill be no order costs.Delivered.J.M.MACKANJAJUDGEAppearances:Professor – G. Mgongo – Fimbo – For Applicant Mr. Werema, SSA Mr. Chidowu. SA:For RespondentCertified true copy of the original.DISTRICT REGISTRAR.IN THE HIGH COURT OR TANZANIAAT DARE ES SALAAMMINC CIVIL CAUSE NO 127 OF 1989In the Matter of the Mining Act, 1979 Section 50AndIn the Matter of an Application for the Orders of Certiorari and MandumusBetweenKAHAMA GOLD MINES COMPANY LIMITED…1 ST APPLICANTKONE CORPORATION………………………………2 ND APPLICANTOUTKUMPU……………………………………………3 RD APPLICANTVersus239

THE MINISTER FOR ENERGY & MINERALS…..RESPONDENT………………….RULINGThis is an application or interim injunction to restrain the respondent fromhanding over the disputed area to Placer Dome Inc. or any one else pending the finaldetermination of the main application, Order 37 rules 1 and 2 of the Civil Procedure acode; 1966, are cited as enabling provisions Mr. Change, Counsel for the respondent hastaken 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, Ifind it as established prime facie that the applicants have worked on the project, forseveral year, made discoveries of substantial gold deposit at great expense and that nooffer of compensation has been made to them for what they have done. As already foundby this Court, the applicants prospecting licence expire on 27/8/87 and their applicationfor renewal of that licence has not been dealt with by the respondent according to theprovisions of the relevant law. It is common ground that Placer Dome have been handedover the area by the respondent. Mr. Change has argued that under section 35 of theMining Act, 1979, The applicants were mere licenses. It might be so, but the provisionsof 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 theapplicants, on the one hand; might sustain if the injunction is refused and they shouldultimately turn out to be successful is mush more that the injury which the respondent, onthe other hand, would suffer if the injunction is granted and he should ultimately turn outto be right. In my judgment that submission right.As observed at the outset, Mr. Chenge has taken issue with the citation of Order37 rules 1 and 2 as enabling provisions. In reply Dr. Lamwai has made reference tosection 2(2) of the Judicature and Application of Laws Ordinance, Cap 453, and Act No55 of 1968 and pointed out, correctly, that the Chief Justice has yet to make any rulesprescribing the procedure for application of this nature. He has pleaded, essentially thatthose provisions of the C.P.C have been cited for want of any prescribed rules under theOrdinance.I appreciate Dr Lamwai’s point and predicament. I take the view, however, thatindependently of any questions as to statutory provisions the High Court has in generaloriginal and independent jurisdiction to issue interlocutory orders to prevent what itconsiders continuing or intended injury to a party where it appears to the Court to be justas well as convenient. And the jurisdiction of this Court in granting interim injunction sofar as it partakes of the nature of preventive remedy, is one that may be exercised withoutdifficulty 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 finda case which would entitle the applicant to relief at all events; it is quite sufficient for it240

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 inoccupation of the area Dr. Lamwai has thus arged this Court to grant a mandatoryinjunction instead i.e an order compeling the respondent to restore things to thecondition in which they were at the time when the application was made and keep themin that state until their rights can be ascertained and finally determined. The jurisdictionof this Court in granting such injunction in this case is a different matter and I will returnto that at the end of this Ruling.Mr Chenge has taken a further point namely, that this Court has no jurisdictionwhatever to make an order for any kind of injunction against the respondent. Hisauthorities are section 11 of the Government Proceedings Act, 1967, Order 37 C.P.C asmodified 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 inproceedings 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 CivilProceedings the Court has no power to grant an injunction against an Officer of theGovernment, if the effect of doing so would be to give relief against the Governmentwhich could nor have been obtained in proceedings against the Government (the object ofthis rule is to prevent the Government immunity being stultified by substituting anindividual official as the defendant, since the whole point of the immunity is that themachinery 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 tothe C.P.C ( which includes Order 37) applicable to proceedings under the GovernmentProceedings Act subject to the modifications specified in the schedule thereto. By virtueof these provisions the Court has no power to grant a temporary injunction against theGovernment, but in lieu threof the Court may make an order declaratory of the rights ofthe parties. Whether that makes good sense, however, a moor point. For one thing, as thelearned judge observed in Underhill and Anather ,such interim declaration might be thevery apposite of the final declaration of right make at the end of the trial after all thematter in issue had been gone into at leghth.Underhill and another was a decision of the Chancery Division in relation tosection 21 of the English Crown Proceedings Act, 1947 which corresponds with section11 of our Government Proceedings Act. It was conceded at the hearing, and held byRomer, J., that in view of that provision the plaintiff’s prayer for interlocutory injunctioncould 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 aninterim injunction cannot granted in proceedings for prerogative remedies. And Dr.Lamwai’s submission that the Government Proceedings Act is inapplicable to the matterat hand has substance.Certainly to make that Act applicable to proceedings relating to prerogativeremedies would result into thinning the intended affect of the remedy of mandamus, andit may be well to remember that mandamus, for one, has some of the attributes of amandatory injunction. Both are commands from the Court that some legal duty beperformed; and disobedience to them is a contempt of court for which the normal penaltyis imprisonment.I am the more inclined to take that view by another consideration; theGovernment Proceedings Act is basically designed to make private law applicable theGovernment, subject to the modifications and exemption set out therein. But mattersrelating to prerogative remedies do not belong to the province of private law. Theypertain to public law.In England injunction is apparently conceived to be basically a private lawremedy and the position is that prerogative remedies cannot be sought alternatively tosuch remedy or be married to any other form of action.They can be sought only by their own peculiar process, which reflect their peculiarnature.In Tanzania, as Dr Lamwai pointed out, it has been the practice to grantinter injunction inproceedings or prerogative remedies where it has been deemed just and convenient to doso, notably in immigration matters to restrain the authorities from repatriating orexpecting people from the country pending the final conclusion of proceedings for theissue of habeas corpus, that, in my view, is good practice, and whether the machinery ofthe central government would be unduly impeded by the issue of such injunction in aparticular case should be one of the points to be considered by the court in deciding thequestion whether it is just and convenient to grant the injunction.I hold that an application for interim mandatory injunctions is maintainable in lawin 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 inposition to superintend the operation involved. So, as the text in Hanbury referred to byDr. Lamwai says, such injunction should be less readily granted. Bearing in mind thosetwo considerations, in particular the second one, I take the view that it is not convenientto grant a mandatory interim injunction in this action as asked for. But fairness demandsthat the status quo be maintained, which means placer Dome should stop doing any workat the area by way event, the order of this Court is that the respondent shall prevent PlacerDome from doing any Mining work at the area until the final determination of this actionor until further order of the Court.242

Delivered.Dr. Lamwai for the Applicant.Mr. Chenge for the Respondent.IN THE COURT O APPEAL OF TANZANIAAT DAR ES SALAAM(CORAM: RAMADHANI, J. A MNZAVA, J.A.,AND MFALILA, J.A.)CIVIL APPEAL NO. 14 OF 1995BETWEENMECAIANA ESTABLISHMENTS(VADUZ)…………………………. APPELLANTANDTHE COMMISSIONER OF INCOME TAXAND SIX OTHERS ………………………RESPONDENTS(Appeal from the Ruling of the High Court of Tanzania at Dar es Salaam)RAMADHANI, J. A. :(Mapigano, J.)Dated the 31 st day of March, 1994InMinc, Civil Cause No. 156 of 1993JUDGEMENT OF THE COURT243

The appellant, Mecaiana Establishments (Vaduz), is the applicant in Minc. CivilCause No. 156 of 1993 before the High Court of Tanzania at Dar es Salaam and there areseven respondents. The Commissioner of Income Tax, the respondent in this appeal, isthe first respondent in that Misc. Civil Cause while the seventh respondent is theAttorney – General. The other five respondents are individuals.In those proceedings the appellant is seeking five prerogative orders against thepresent respondent to this appeal and four declarations against the Government.As is the case in applications for prerogative orders, the appellant first soughtleave to file application for the orders. The representatives of the Attorney – Generalcategorically stated the the Attorney – General was not representing the Commissioner ofIncome Tax. They appeared for the Attorney – General and the other five respondents.Luckily at the hearing, Mr. Lutainulwa, the then Commissioner of Income Tax, waspersonally present was granted for the application for prerogative orders.The Commissioner of Income Tax, then, filed a Chamber application to strike outthe application of the appellant. The response of the appellant was to file a preliminaryobjection containing three points.The first point is the one relevant in this appeal. The appellant contended that thechamber applicant by the Commissioner of Income Tax is proceedings by theGovernment and so it could only be brought by the Attorney – General.MAPIGANO, J, in agreement with Mr. Salula for the Attorney General, foundthat the chamber application was not proceedings the Government and therefore it wasnot necessary for the application to be brought by the Attorney – General.Before us in the appeal Mr. Mkono, learned Council, appeal on behalf of theappellant. 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 LawReform ( Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) asamended by Act No. 27 of 1991. Mr. Mkono pointed out further that sub-section (2) ofthat section required the Attorney – General to be summoned to appeal as a party.To the learned advocate this made proceedings for prerogative orders governmentproceedings which under s. 9(2) of the Government Proceedings Act, 1967 are to beinstituted by the Attorney – General Mr. Mkono submitted that the respondent, theCommissioner of Income Tax, did not file a defense but a separate chamber applicationwhich amounted to instituting a proceeding. That, the learned advocate submitted, therespondent could not do for lack of locus standi.On behalf of the respondent was Mr. Luoga, learned Counsel. He conceded thatso. 17A (1) of the law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinancedemands 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 wasthe case in this application. Mr. Luoga submitted further that the respondent was both aproper and a necessary party and that some of the relief contained in the appellant’sprayer can only be respondent to by this respondent. Lastly, he argued that s. 9(2) of theGovernment Proceedings Act, 1967 does not preclude the respondent from initiatingproceedings 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 therespondent to initiate proceedings.The crux of the matter here is whether or not proceedings for prerogative rights areGovernment Proceedings. This depends entirely on the interpretation of s. 17A of theLaw 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 issought 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 theAttorney – General does not appear before the court on the date specified in thesummons, 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 tosummon the Attorney – General as a Party in proceedings for prerogative orders is whenleave for application to institute those proceedings is sought. Thus after leave has beengranted to institute those proceedings, then there is no requirement of summoning theAttorney – General as a Party.It may be necessary to point out here that as the Chief Justice has not made rulesto govern these proceedings, the High Court has been following the procedure obtained inEngland. 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 theprerogative orders. The requirement of summoning the Attorney – General as a Party as aparty is for the first stage of seeking leave. That requirement is absent in the second stageof application for prerogative orders.We get support in this construction when we look at sub – section (2) of this samesection 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 tothe 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 hisrepresentatives designated by him or that purpose is summoned to appeal as a party tothose proceedings ….(emphasis is ours).The sub- section is very category that proceedings involving the interpretation ofthe Constitution shall not commence or continue without the Attorney – General. Of245

course, there is the exception where the Attorney – General. Of course, there is theexception where the Attorney – General or his representative does not appear on thedesignated day. In such a case the Court may direct the hearing to commerce or tocontinue without him.So, we agree with Mr. Luoga that s. 17A applies only in the first stage of seekingleave. As leave was granted, then there was no need to have the Attorney – General. Thatis particularly so when the representatives of the Attorney – General, Mr. Mrema andMrs. Ndosi, at different times, said in Court that they were not representing therespondentGovernment proceedings, on the other hand, have to be instituted by or againstthe Attorney – General. That is the clear provision of s.9 of the Government proceedingsAct, 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 thenature of Government proceedings which must be against or by the Attorney – Generalonly.Before we finish we wish to comment briefly on two matters. First, Mr. Mkonodwelt at a considerable length reviewing English law on what constitution Governmentproceedings. 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 adeparture 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 GNbut it is not at all relevant. It is titled “The Personal Tax (Variation of Due Date) NjelluChiefdom, Songea District Order, 1961”, We are not sure whether this was a slip or itwas deliberate and calculated to mislead.For these reasons we dismiss the appeal with costs. It is so ordered.DATED at DAR ES SALAAM this 8 th day of December, 1995.A.S.L RAMADHANIJUSTICE OF APPEALN.S MNZAVASJUSTICE OF APPEALL.M MFALILAJUSTICE OF APPEALI certify that this is a true copy of the original.( M.S SHANGALI)DEPUTY REGISTRAR246

IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAM(CORAM:KISANGA, J.A., MNZAVAS, J.A., AND MFALILA, J.A.)1. REV. CHRISTOPHER MTIKILA2. THE DEMOCRATIC PARTYCIVIL APPEAL NO. 28 OF 1995BetweenAnd1. THE HON. THE ATTORNEY GENERA L2. THE REGISTRAR OR POLITICAL PARTIES.(Appeal from the judgment of the High Court of Tanzania at Dar es Salaam)MFALILA, J.A.:(Maina, J.)Dated the 14 th day of December, 1993InMiscellaneous Civil Cause No. 67 of 1993JUDGEMENT OF THE COURTThis appeal is against the ruling of the High Court (Main, J.) dismissing theappellants, application for orders of Certiorari and Mandamus against the 2 nd respondentthe Registrar of Political Parties. In Minc. Civil Cause No. 67 of 1995, the appellantssought the order of certiorari to quash the decision of the Registrar of Political Partiesrejecting the appellants application for the full registration of the second appellant. Theyalso sought the order of Mandamus to compel the second respondent to issue the secondappellant with a certificate of full registration.Three grounds were cited to support the application, namely, that the second respondentwas biased against the second appellant, that both the reasons he gave and the politicalparties Act are unconstitutional. The application was supported by the affidavit of the 1 stappellant to which Council for both respondents filed a counter affidavit.The 1 st respondent was cited as a necessary party since the constitutionally of an Act ofParliament had been raised. After fully considering the arguments for and against the247

application, the judge dismissed the application, holding that the decision of the secondrespondent rejecting the appellants application for full registration of the second appellantwas not affected by any bias on his part and that both the reasons given and the PoliticalParties Act were constitutional. The appellants were aggrieved by this decision and theylodged this appeal.On behalf of the appellants, Mr Nyange learned advocate filed five ground ofappeal 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 largelyirrelevant and inapplicable in an application such as the present for Certiorari andMandamus. These concerned the interpretation and application of the constitution.In ground 1, the appellants complained that as the proceedings in the High Courtwere not of an interlocutory nature, the learned judge erred in law in admitting evidencebased on an affidavit deposed to by a person who could not of his own person knowledgeprove the contents thereof. The affidavit that is being impugned is the counter affidavitdeposit to by Mr. Salula learned Senior State Attorney who appeared for the respondentsboth in the High Court and in this appeal.In the High Court, Mr. Nyange had raised a preliminary objection against Mr. Salula’scounter affidavit stating that it contravenes Order 19 rule 3(1) of the Civil ProcedureCode in that it purports to show that all the information therein is based on the deponent’sown personal knowledge when it was not true.He said that the information in paragraphs 4, 5, 6, and 8 could only have been supplied toMr. Salula by the second respondent, hence he should have disclosed the source of suchinformation. He therefore prayed that the counter affidavit be rejected as incompetent andthe application should proceed as unopposed.The learned judge agreed that the counter affidavit was defective for this reason butdeclined to reject it as prayed by Mr. Nyange on the basis that it would work injustice onthe respondents.He therefore allowed Mr. Salula to amend his counter affidavit. Mr. Salula complied withthis order by filing an amended counter affidavit on which the hearing proceeded. Thefirst group complains against this decision and at the hearing of this appeal, Mr Nyangeurged us to ignore the counter affidavit and treat the application as uncontroversial bothin the High Court and in this Court.However Mr Salula contention by saying that the provisions of 0.19 do not applyto the present case, because, firstly, this was not a final matter, it was an application toapply for orders of certiorari and Mandamus.We do not think this reason is valid because the same counter affidavit was used in thefinal application for orders of certiorari and mandamus. Secondly, he said there was noorder by the Court to prove anything by affidavit, hence he said he was not proving248

anything, he was simply answering what had been raised in the affidavit in support of theapplication in a Chamber Summons Under 0.43 r. 2.We think this submission is valid. Apart from interlocutory applications which hardlyrequire proof of facts, facts which have been ordered by the Court to be proved byaffidavit 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 discloseof the source of information should be sufficient. We are satisfies that it was on the basisof this that the 1 st appellant’s own affidavit in support of the application was acceptedeven though it contained in paragraph 7 information which was not from his ownpersonal knowledge.If his own affidavit contained such information and was admitted and acted upon, we aresurprised that he should object against the other side doing the same. If the High Court orthis Court accepted Mr. Nyange’s objection against the amended counter affidavit and weordered the rejection of the counter affidavit, we do not see how at the same time wecould hold the affidavit, which contains the same “error” as valid in law. If the counteraffidavit has to be rejected, the appellants’ affidavit must also be rejected for the samereason and there would then be nothing before the Court to support the appellants’ ownapplication. Accordingly we dismiss the complaint in ground No 1.In ground 4 , the appellants complained that the learned judge erred in law infailing to hold that the second respondent’s failure to give notice to the appellants of hisintention to refuse full registration did not amount to failure of natural justice. Inconnection with this complaint, the position was as follows: The 1 st appellant applied forand the second appellant was granted provisional registration by the second respondenton 11 th September 1992 under the provision of Section B of the Political Parties Act1992.After considering itself that it had fulfilled all the conditions for full registration, thesecond appellant applied for full registration under the provisions of the same Act. Onreceipt of this application, the second respondent studied it and having done so decided toreject it and refused to grant the second appellant full registration.Detailed reasons for this refusal were communicated to the appellants by the secondrespondent, the Registrar of Political Parties, in his letter Exh. D1 . It appears and thiswas 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 theHigh Court and in this Court Counsel for the appellants argued that in the exercise of hisquasi – judicial or administrative duties, the Registrar did not have absolute discretion.He had to observe principles of natural justice which required him to inform theappellants of his intended decision to reject their application or full registration and thereasons thereof; thereby giving them an opportunity to be heard.249

That since this was not done, the Registrar’s decision was invalid as being against theprinciples of natural justice. On behalf of the second respondent, Mr. Salula argued that adistinction has to be made between exercise of the powers of the Registrar to refuse togrant full registration to a Political Party and the exercise of his powers under Section 15or the Act canceling the registration of a Political Party.He said that whereas the Registrar must inform the Political Party of his intention tocancel it and hear its representations if any, there is no such obligation when refusing togrant full registration.The learned High Court Judge agreed with Mr. Salula’s argument. Because of theimportance of this argument on this ground of appeal, we intend to quote the learnedjudge’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 thesecond applicant was in accordance with the law, and that refusal to grant full registrationis not the same as cancellation of a registered political party. Section 15(1) of the PoliticalParties Act provides that “The Registrar may cancel the registration of any political partywhich has contravened any of the provisions of the Act”.That however, is subject to subsection (2) which requires the Registrar, inter alia toinform the party concerned of the contravention or loss of qualification and of theintention to cancel the registration. The party concerned will then have an opportunity tomake representation before the Registrar decides to cancel the registrar decides to cancelthe registration. However there is no such provision regarding refusal to grant fullregistration.I think there is logic in that. A political party which is provisionally registered party hasone hundred and eighty days within which to apply for full registration. During thatperiod, it has every opportunity to make consultation with the Registrar before it appliesfor full registration. The condition laid down in the Political Parties Act and theRegulations made there under (published as Government Notice No. 111 of 1992) mustbe complied with.There will be no reason again for the Registrar to give a notice to a provisionallyregistered political party of intention to refuse full registration. I agree with Mr. Salulathat what the second respondent did was according to law and there was no failure ofnatural justice.What the second respondent did was to scrutinize the documents which were presentedby the second applicant and having found that they were not in accordance with the lawand the Constitution he refused to grant full-registration. That was strict application of thelaw as it stands”.This then is the background to the appellants complaint in ground 4. We aregenuinely surprised by the reasoning of the learned judge to the effect that by denying the250

appellants the opportunities of being heard before making a decision which was clearlyagainst their legal and political interests, the Registrar was complying with the law whichhe was applying strictly.We concede that there is no provision in the Political Parties Act requiring the Registrarto inform the party concerned of his intention to refuse to grant full registrationequivalent 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 contraventionof the rules of natural justice as well as a specific provision in the constitution whichrequire him to do so.A rule of natural justice forbids the condemnation of a person before he is heard. Arefusal to grant an application for full registration is a species of condemnation. Thenthere is the provision in Article 13(6) of the constitution of the United Republic to thefollowing effect:“13. (6) Kwa madhumuni ya kuhakikisha usawa mbele ya sheria,Mamlaka ya nchi itaweka taratibu zinazofaa au zinazozingatia misingikwamba(a) Wakati haki na wajibu na mtu yeyote vinahitaji kufanyiwa uamuzi naMahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwana haki ya kupewa fursa ya kusikilizwa kwa ukamilifu, na kupata nafuunyingine na kisheria kutokana na maamuzi ya Mahakama au chombokinginecho kinachohusika.Certainly the Registrar of Political Parties is included in “chombokinginecho kinachohusika” referred to in this Sub- article and in the course ofmaking up his mind whether or not to grant full registration on the basis of thematerials before him, he is involved fully in the process envisaged by the Subarticlei.e determining the right and obligations of a party of parties therebymaking 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 obligedto inform the appellants of his intention to refuse full registration before actuallydoing so, there was no time to do this as the appellants submitted their applicationfor full registration on the last day of their life as a provisionally registeredpolitical party.The appellants submitted their application on the 180 th day. Therefore inMr. Salula’s opinion, since a provisionally registered party ceases to exist after251

the expiry of 180 days, there was no subject matter which would have been asubject 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 everyregistration certificate shall cease to be of any effect at the expiry of one hundredand eighty days from the date of one hundred and eighty days from the date ofsuch provisional registration.”Mr. Salula argument must be rejected for two reasons. The provisional registration of thesecond appellant may have lapsed and the provisional registration certificate ceased to beof any effect at the end of the day when application for full registration was made, butthere were still alive and very much in existence, is the human agents, i.e. the officebearers who physically filed the applications under Regulation 4(1) of the PoliticalParties (Registration) Regulations G.N. 111/92.These are the two people to whom information should have been sent by the Registrar ofhis intention to refuse granting full registration and to hear them it they so wished. Afterall it is the two human agents, the office bearers, who were directly affected by theRegistrar’s decision.The second reason is that in Minc. Civil Application No. 42/93 filed in the HighCourt at Dar es Salaam, the first appellant had applied for the extension of the party’sprovisional registration until the party’s application for full registration is determined bythe Registrar of Political Parties. The High Court (Samatta, J.K.) granted the applicationand made the following order.“The provisional registration of the Democratic Party and the certificate of thatregistration are, in law, still in force and will lapse and expire respectively on the date theparty’s application for full registration will be granted or refused and that the party’sleaders, servants and agents are, pending the determination by the Registrar of PoliticalParties of the party’s application for full registration, entitled in law to conduct politicalaffairs 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 PoliticalParties Act to which he added words in order give the Sub – section what he called arational meaning and to avoid an obvious absurdity in the meaning carried by the literalwords used by the legislature.The state did not appeal against this interpretation of Section 8(4) by the learned JajiKiongozi. We therefore must take that interpretation to be the law currently obtaining. Inthe light of this order by the High Court, the second appellant was very much still inbusiness at the time the second respondent was making his decision not to grant fullregistration to the second appellant.252

For these reasons we are satisfied that the Registrar of Political Parties actedcontrary to law when he refused the appellants’ application for full registration withouthearing them. Accordingly, we allow the appeal, we quash the order of the Registrar ofPolitical Parties refusing to grant full registration to the second appellant, we return thematter to the said Registrar and order that he should deal with the appellants’ applicationin 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 20 TH DAY OF OCTOBER, 1995.R. H. KISANGAJUSTICE OF APPEALN. S. MNZAVASJUSTICE OF APPEALL.M MFALILAJUSTICE OF APPEALI certify that this is an true copy of the original.(M. S. SHANGALI)DEPUTY REGISTRAR253

IN THE COURT OF APPEAL OF TANZANIAAT DAR ES SALAAM(CORAM:KISANGA, J.A RAMADHANI, J.A., And MFALILA, J.A)CIVIL APPEAL NO. 48 OF 1994BETWEENNATIONAL HOUSING CORPORATION ….APPELLANTANDTANZANIA SHOE COMPANY And38 OTHERS ……………………….RESPONDENTSANDTHE ATTORNEY GENERAL ……….. NECESSARY PARTY(Appeal from the Judgement and Decree of the High Court of Tanzania at Dodoma)KISANGA, J.A.( Mwalusanya, J.)Dated the 22 nd day of July, 1994)InMinc. Civil Cause No. 1 of 1993JUDGEMENT OF THE COURT.This appeal arises from the decision of the High Court (Mwalusanya, J.) grantingorders of certiorari and prohibition against the appellant, The National HousingCorporation (N.H.C) for having effected rent increases to its tenants to the tune of 800mper annum. Before the matter proceeded to hearing the trial judge, followingrepresentations 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 ActNo 29 of 1991, the Attorney- General be served to appear. The case was then adjourned anumber or times between 23.7.93 and 16.6.94 because the Attorney-General could not beserved. 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 aparticular issue, and there is irregularity in the procedure, he does not destroy hisjurisdiction reaching a wrong decision. If he has jurisdiction to go right, he has254

jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy hisjurisdiction. 22”And another example of the narrow approach is the decision of the former Chief Justiceof Tanzania Mr. Justice Saidi in Re Petition by Habel Kasenha. 23 By section 78 (2) ofthe Local Government Elections Act it was provided:“The proceedings of meeting of the District Executive Committee or any other organ ofthe Party which is held for the purpose of this Act, should not be subject to review in anycourt, 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 theelection was procured by fraud and collusion as those are the grounds upon which thepetitioner 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 electedPresident, his election shall not be questioned in any court”Those who espouse the narrow approach would like to tell us that because of that ousterclause 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 16of the Public Service Commission Act, 1962 read:“The question whether any Commission has validly performed any function vested in itby 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 inquireinto the validity of the decision to dismiss Anthony Sefu.22. At. P 187.23. (1967) E.A. 44524. (1972) HCD No. 220Taken by the East African Railway and Harbors Service Commission as the decision waswithin its jurisdiction. Even if the decision was procured by fraud, that school of thoughtargues 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 Courtof Kenya in the case of Chite vs. E.A Community 25 decided to adopt the broad approach255

and held that the High Court had power to enquire into the decision of dismissal of anemployee 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 PreventiveDetention Act, 1962 26 both the High Court and the Tanzania Court of Appeal have takenthe narrow approach. That statute had the ouster clause in section 3 which now has beenrepealed 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 gofurther than the “authenticity” of the detention order to see if it is properly signed andsealed.A similar approach was adopted by. Maganga, J. in Ahmed Janmohamed Dhirani vs,R. 28And later Bahati, J. echoed what his colleagues had said earlier in the case of Dhikri. 29Then the Tanzania Court of Appeal in the Case of A.G vs. Lesinoi Ndeinai 30 adopted thenarrow approach despite the fact the Anisminic Case was mentioned. In that case Nyalali,C. J. said:25. (1970) E.A 487 (K)26. Cap. 49027. High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No. 2 of1977 (Unreported)28.(1979) L.R.T. No 129. High Court of Tanzania at Dar es Salaam, Miscellaneous Criminal Cause No. 10 of1984.30. (1980) L.R.T No. 215Designated by him for that purpose was summoned to appear as a party to theproceedings in the trial court.3. That the learned trial judge erred in law in commencing and continuing theproceedings in the trial Court without summoning the Attorney – General or hisrepresentative designated by him for that purpose to appear as a party to theproceedings in the trial Court.”256

Essentially these grounds are alleging non- compliance with the provisions of Section17A (2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) OrdinanceCap. 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 regardto the basic freedoms, rights and duties specified in Part III of Chapter I of theConstitution, no hearing shall be commenced or continued unless the Attorney – Generalor his representative designated by him for that purpose is summoned to appear as a partyto those proceedings; save that if the Attorney – General or his designated representativedoes not appear before the Court on the date specified in the summons, the court maydirect that the hearing be commenced or continued; as the case may be, ex-parte.”to theCourt:-“Mussa – Senior State Attorney: we do not like to be heard. Counsel for the defendantswill take care of our interests.Following receipt of such information the Court proceeded to hear the case at theconclusion of which it granted orders of certiorari and prohibition as indicated above.In the appeal the appellant corporation is represented by a team of threeadvocates, namely, Mr. N. Rweyemamu, Mr. E.D Kisa and Mr. N. Mselemu. Therespondents are represented by Mr. D.C. Mbela learned advocate, while the AttorneyGeneral was at first represented by Mr. E Kifunda and later by Mr. S.B Salula, learnedState Attorney and Senior State Arrorney, respectively.On behalf of the appellant, a memorandum of appeal was filed containing a totalof 13 ground of appeal. But at the commencement of the hearing we directed counsel forboth sides to address us first on grounds 3 and 4 only which raised the issue orjurisdiction or competence of the trial Court, it being apparent that should those groundssucceed, that was sufficient to dispose of the entire appeal, and it would serve nopractical 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 – Generalwas duly served without considering the question whether the Attorney – General or hisrepresentative.257

The sub-section requires that the Attorney General be summoned as a party inthe proceedings which involve the interpretation of the constitution with regard tobasic rights and freedoms enshrined in the construction.Mr. Mesa seemed to doubt the applicability of this provision to the facts of thepresent case which in his view, did not raise the question of interpretation in thesense of clarifying some provisions of the constitution. With due respecthowever, we think that this argument is misguided. The case seeks to challengethe constitutionality of Government Notice No. 41 of 1982 which, it is alleged, isdiscriminatory in its effect and which denied the respondents their right to beheard before the appellant corporation, their land lord, effected rent increasesunilaterally and arbitrarily. We are of the settled view that these are matterswhich fall squarely within the purview of the sub-section, and we can find nojustification for counsel’s misgivings on that point. It seems that a question mightarise whether or not claims of unconstitutionality can be remedied or redressedupon application, as in this case, for certiorari and prohibition, but hat of course isa different matter; the point here is that the issue of constitutionality of asubsidiary legislation was raised, in which case sub-section (2) above quotedwas applicableThe pertinent now, therefore, is whether or not the trial was conducted incontravention 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 is258

in agreement. However, the advocate for the respondents maintains that it wasnot. In an attempt to resolve this question we recorded addition evidence from anumber of witnesses. Mr. K.M. Mussa, Senior state Attorney Dodoma in hisevidence before us seriously disputed the endorsement on the court record bythe trial judge on 16.6.94 to the effect that they did not wish to be heard and thatcounsel for interests. Mr. Mussa denied making any such statement and indeedwent on to say that on the day in question i.e. 16.6.94 he was on safari awayfrom Dodoma where theproceedings were being conducted.Further additional evidence form witnesses confirms that on the day in questionMr. Mussa did not, in fact, attend the court in Dodoma to state therein what hasbeen attributed to him. On the evidence, what appears to have happened wasthat when on 16.6.94 the Attorney General did not appear, and indeed there is noindication whatsoever that he was summoned for this date, the trial judgeadjourned that case briefly with instruction to his clerk, on Mr. B.S. Kihame, tocontact the office of the senior State Attorney Dodoma to find out what was theposition of the Attorney General in the matter. According to Mr. Kihame who gaveadditional evidence before us, he spoke to Mr., Mussa over the telephone, andthe gist of that conversation as reported back by Mr. Kihame is contained in thejudge’s endorsement on the file as reproduced earlier.259

In a farther attempt by Mr. Mussa to establish his absence form Dodom on theparticular day, he stated that between 12.6.94 and 22.6.94 he was away insingida on a special assignment by the Minister for justice, that he had taken outan imp rest for his subsistence allowances covering that whole period, that heretuned to Dodoma on 19.6.94 and finally he referred to a document dated30.6.94 against which he had retired the said imprest, he therefore maintainedthat 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 thathe returned to Dodoma only in 19.6.94, Mr. Kihame, the judge’s clerk, equallymaintains that he spoke to him over the phone in Dodoma that day and got fromhim the information which he relayed to the judge. Thus it amounts to one man’sword against another, and there is really no good reason for preferring the oneto the other. As the evidence stands, it is possible that Mr. Mussa could havereturned to Dodoma before 19.6.94 and thus could have spoken on the phone toMr. Kihama on 16.6.94However even assuming that this is what, in fact, happened, does it amount tosaying that there was compliance with the provisions of sub-section (2) abovequoted? In order to comply with that sub-section, it was necessary to show thatthe Attorney General or his representativedesignated for that purpose wassummoned to appear as a party to the proceedings Mr. Mesa contended that the260

Attorney General was duly summoned, and in support of this submission herelied on a summons dated 19.10.93 wan to the Attorney General and requiringhim to appear for mention of the case on 12.11.93 However, in that summons theAttorney General is not cited as a party, He is summoned merely as the AttorneyGeneral, while the only parties to the case are shown to be Tanzania shoecompany Ldt. And 26 others (plaintiffs) and National Housing corporation(Defendant).In this connection reference was made to the case of Lausa Alfan Salum and 106others V. Minister for lands Housing and urban Development and nationalHousing Corporation civil appeal no. 15 of (unreported) in which, as in thepresent case, the constitutionality of Government Notice No. 41 of 1992 waschallenged. It was contend that in that case the Attorney General was not citedas a party, and yet this court proceeded to deal with the appeal on the merits. Itfirst place in that case no objection was raised that the Attorney General was notcited or summoned as a party. In the present case however, the non-summoningof the Attorney General was objected to case cited the minister for lands Housingand urban Development as a party and at the hearing the minister wasrepresented 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 tobe heard upon an application for a prerogative order. Thus it seems to us thatthe citing of the minister instead of the Attorney General was not an irregularitywhich went to the root of the matter. For, one case say that the Government was261

in a real sense, a party to the case especially as the senior state. Attorney onbehalf of the Attorney General and representing the minister for lands Housingand urban Development, appeared and participated in the proceedings. In otherwords the Government was, in a true sense, afforded the opportunity to beheard. There was compliance with the spirit, though not with the letter, of thesub-section, and had the Attorney General been cited instead of the minister, itwould 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 beserved to the secretary, National Housing coup.”It seems plain to us that by such endorsement the Attorney General refused, andrightly so in our view, to accept service. Thus we could find no justificationwhatsoever for the view that the Attorney General was duly served for thepurpose of the present case. Furthermore it should be noted that he saidsummons was asking the Attorney General to appear on 12.11.93 for thepurpose of mentioning the case only. But as intimated earlier. There is not theslightest evidence or suggestion that any process was ever sent out to summonthe Attorney General for the hearing of the case either on 16.6.94 when thehearing commenced or any day subsequent thereto262

Once we hold as indeed we do, that the Attorney General was not summoned asa party to appear for the hearing on 16.6.94, then there can be no basis forsaying that Mr. Mussa, the Senior State Attorney Dodoma, was summoned asthe 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 theproceedings on 16.6.94 to which proceedings the Attorney General himself wasnot summoned and to which he was not a party. In which case. Therefore, thecalling by the court upon Mr. Mussa on 16.6.94 andWhat Mr. Mussa is alleged to have said on that day that they did not wish to beheard etc. even if it be true all this becomes wholly irrelevant for the simplereason that Mr. Mussa was not the representative. Of the Attorney General withinthe 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 theAttorney General in this matter, especially after the Attorney General hadexpressly stated on the summons which was sent t him that he was not a party tothe case.It is true that the sub-section under consideration empowers the court, in certaincircumstances, to commence or continue hearing the case ex-prate if the courtso directs. But in this case the court did not direct that he hearing be commencedor continued ex-prate. Indeed, if we may say so in passing, the circumstances ofthe case could not have warranted any such direction.263

The available evidence, therefore amply demonstrates that on 16.6.94 theAttorney General or his representative designated for the purpose was notsummoned as a party to the case before the court. Indeed the Attorney Generalwas not summoned at all on that day or on any day thereafter. Nor did the courtdirect 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 couchedmandatory terms, and in the light of the foregoing the hearing of the case wascommenced and continued in contravention thereafter. The trial was commencedand continued in the absence of the necessary party and in the absence of anyof any direction by the trial court do so. Thus the court proceeded withoutauthority and that constituted a major defect, which went to the root of the trial. Itrendered the proceedings null and void. In the event the appeal succeeds. Theproceeding before the High court are declared null and void and are accordinglyset aside.As regards costs Counsel for the appellant corporation asked ut to certify costsfor three counsel on the ground that the appeal raise d complicated issued andthat it involved that calling of a number of additional witnesses to give evidenceduring the appeal.Although a total of 13 grounds were argued namely grounds 3 and 4 Thesegrounds raise the issue of commencing and continuing the proceedings in theabsence of the necessary party i.e. the Attorney General. That issue had264

surfaced from the very beginning. Indeed at some stage before the hearingstarted the trial court had to rule, following representations from the Bar. That thecase be adjourned until the Attorney General was served. In other words thenecessity of having the Attorney General participating in the proceedings wasclearly seen and appreciated from the very start. However, as it transpired, theAttorney General was never served and yet the trial commenced and proceededwithout any direction by the trial court to proceed without himIt ought to have been quite clear to the advocate preparing or counseling thepreparation of the memorandum of appeal that the Attorney General’s lack ofparticipation in the proceedings must be made a ground of appeal. Upon aglance through he proceedings it should have been equally easy to see that theappeal stood great chances of succeeding on that ground alone. In ourconsidered view it was not really necessary to mobilize or enlist the services ofthree counsel to see or discover these points; a single advocate would do for thepurpose. 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 26 th day of October, 1995.R. H. KISANGAJUSTICE OF APPEALA.S.L. RAMADRANIJUSTICE OF APPEAL265

L.M/ MFAILAJUSTICE OF APPEALI certify that this is a true copy of the original.M.S. SHANGALIDEPUTY REGISTRARRight of Access to JusticeDoor on matters of enforcement of the basic human rights enshrined in theConstitution. This has been through enactment of Basic Rights and DutiesEnforcement Act, 1994, 20 An Act which introduced very cumbersome procedurein human rights enforcement in the country. Originally, when the Bill of Rightswas legislated in the Constitution in 1984; it brought in Article 30 (3) whichopened a new arena for aggrieved persons and those likely to be aggrieved tobring action in the High Court. Procedure relating to sub-article (3) are to beregulated by an Act of parliament. It was until 1994 when such a law wasenacted. Its absence however, did not make the High Court hesitant to invokethe jurisdiction conferred upon by Article 30 (3). The procedure which wasadopted suo motu by the High Court had been cruised as bogged down bytechnicalities. One would expect the new law to cure this anomaly by followingexamples from persuasive jurisdiction but to our bewilderment the Act rails off theintended 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 thelitigants, The Government Proceedings (Amendment) Act, 1994 requires annotice of the intention to sue the Government t obe given not less than ninetydays before.Peter Ng’omangoVersusGerson M.K Mwangwa and AnotherThe plaintiff, Peter Mgomango filed a suit against the principal of MpwapwaTeacher’s college, Mr. Gerson M.K.Mwangwa claiming shs. 2,201,762/= asdamages for malicious prosecution and defamation. The defendant applied tohave the government joined as co-defendant simply because he was a publicservant but the application was rejected by the court . Then the State Attorney I/c266

of Dodoma Zone Mr. Mwambe duly instructed by the Attorney-General made assimilar application to have the Government joined as a co-defendant which wasalso rejected. The court advised the parties that it would be beneficial to thegovernment only to provide necessary legal representation to that governmentofficial. Finally the government was joined after proper third party NoticeProcedures were complied with.Immediately after being joined as a co-defendant, the government raised anobjection to the effect that the suit was incompetent for want of Ministerialconsent under the Government Proceedings Act. 1967 The plaintiff replied byarguing that the Act was unconstitutional and so void for the requirement of aministerial consent was inconsistent with the right to have free access to thecourts 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, obligationand interests of every persons shall be protected and determined by competentcourts of law; all persons are entitled to the protection of the law; all person areentitled to a fair hearing; and thus if one feels aggrieved one may instituteproceedings for relief to the High Court.The Attorney-General, for the government, submitted that the requirement of awritten permission was a mere procedural matter which did not take away theright to sue the government, and in the alternative, if it so infringes, the Act is inthe Public interest thus saved by the derogation clause in20 Act No. 33 of 199421 Act No. 30 of 199422 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 11 thDecember, 1992.23 Act No. 16 of 1967.Human Rights in TanzaniaArticle 30 (1) and (2) of the Constitution. The issue, then, was whether the rightto have a free access to the courts for a remedy is infringed by the mere fact thatSection 6 of the Act requires a ministerial fiat for one to file a suit in court againstthe government.The plaintiff retorted that the ministerial fiat was not a mere procedural matter butsubstantively restricts the right to free access to the courts; and the Act was notin the public interest in that there was no need of having a fiat because, with allattorneys, the government would be heard and defend itself. Also, the Act wascontrary to openness and transparency desired in a multiparty democracy.The Court held that the Constitution recognizes the right of an individual to havea free access to the Courts for a remedy; Section 6 of the Government267

proceedings Act, 1967 which requires a ministerial fiat in order to sue thegovernment infringes the constitutional right free access to the courts for aremedy; and that the Act was not in public interest, therefore unconstitutional andvoid.RulingMwalusanya, J.The plaintiff Peter s/o Ng’omango is a tutor at Mpwapwa Teacher’s College. Hefiled a suit against the Principal of Mpwapwa Teacher’s College one Mr.GersonM.K. Mwangwa claiming Shs. 2,201,762/= as damages for malicious prosecutionand defamation. The defendat applied to have the government joined as codefendantsimply because he is a public servant but I rejected the applicain.Then the State Attorney I/c of Dodoma Zone Mr. Mwambe, duly duly instructedby the Attorney-General applied to have the government joined as a codefendantand again the application was rejected. I advised the defendant thatthe proper procedure was for him to apply for a third party notice so that thegovernment is joined as co-defendant. That he did and the government wasfinally duly joined as the 2 nd defendantAs expected, the 2 nd defendant (the Government) in its written statement ofdefense has raised a preliminary objection to the effect that the suit isincompetent, for want of consent of the minister for justice under the provisions ofthe Government proceedings Act, 1967 In his reply the plaintiff has raised aconstitutional point to the effect that the Government Proceedings Acts,1967 asamended by government proceedings (Amendment) Act, 1967 25 isunconstitutional 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 (ConsequentialTransitional 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 inquestion was duly derved on him as required by Section 17A (2) of the LawReform “(Fatal Accidents ) Miscellaneous Provisions Ordinace, 1955 27 asamended by Law Reform Reform (Fatal Accidens and Miscellaneous provisions)Ordinance (Amendment) Act, 1991 28 So he said that he was qyute ready toargue the pointThe points raised by Mr. Nduguru were two – fold. First that assuming he theright 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 1974.268

26 Act No. 16 of 198427 Chapter 360 of the Revised Laws of Tanzania Mainland28 Act No. of 1991.Right of Access to JusticeOf the Constitution, yet the Government Proceeding Act, 1967, has not infringedthe 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 thegovernment was a mere procedural matter, which did not take away the right tosue the government. He said that the right to sue the government is left intact. Hecontended that since it is only procedural matter, it sues not infringe the right ofaccess to the courts., He said that it is just like a procedure which is provide inthe Civil Procedure Code, 1966 29 that one cannot sue any defendant until he hasfiled a proper plaint in court or until he has given a proper notice to sue thatdefendant. In fine he argued that the requirement of fiat from the minister forjustice 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 fiatis taken to infringe the right of free access to the courts provided for in theConstitution, nevertheless he argued the Government Proceedings Act, 1967 issaved by the derogation clause in Article 30 (1) and (2) of the Constitution as it isin public interest. He said that it was in public interest for two reasons. First thatthe restriction is necessary so as to avoid unnecessary harassment of thegovernment so that it functions smoothly when serving the general public. Hesaid that public policy requires that the Government conduct its businesssmoothly without unnecessary harassments and impediments otherwise thegeneral public will not be saved well. Secondly, the State Attorney argue that ifthe High Court will declare this statute to be unconstitutional the courts will beinundated with numerous cases against the government and the courts will notbe able to cope with the fold of those cases So he said that the requirement of aministerial fiat was in public interest under Article 30 (1) and (2) of ourConstitution, so as to limit the number of cases going to court. And at the sametime the government will be spared the embarrassment of being the defendant infrivolous and vexatious cases. He said that, that situation would not be healthy ifthe requirement of a ministerial fiat is abolished.The plaintiff replied by stating that the requirement of a ministerial fiat was not amere procedural matter but substantively restricts the right to have free access tothe courts. He continued to sumit that the Government Proceedings Act, 1967 isnot in public interest and so it is not saved by the derogation clause or claw-backclause. 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 StateAttorney, he could not see any reason as to why the ministerial fiat should beimposed. He said that the Government would not be prejudiced in any way if the269

ministerial fiat is taken away;. He also argued that the requirement of aministerial 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 rightof tree access to the courts for a remedy is recognized by our Constitution. It ismy finding that the right of an individual for free access to the courts is resignedby our Constitution. First we have Article 13 (3) of our Constitution whichprovides:The civil rights, obligations and interests of every person shall be protected anddetermined by competent courts of law.And Article 30 (3) of our Constitution proved that if one feels that hisconstitutional rights have been violated, he has the right to institute proceedingsfor relief in the High Court,” Not only that we have Article 13 (1) of ourConstitution which provides that all persons are entitled to the protection of thelaw which envisaged that any person will have a free access to the courts for aremedy. And finally we have Article 13 (6) (a) of our Constitution which providesfor a right is a fir hearing by the court of law, which ones rights and obligationsare being determined. The right to be heard includes the right to have freeaccess to the courts to file a suit for a remedy. That was the interpretation by theEuropean Court of Human Rights in the case of Golder v. U.K 30 in respect ofArticle 6 (1) of the European Convention for the protection of human Rights andFundamental Freedoms, 1950 which is worded in similar terms like our Article 13(6) (a) of our Constitution. That Court invoked a purposeful construction insteadof 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 persuasiveauthority by the European Human Rights Court. The above account amplydemonstrated that our Constitution recognizes the right of an individual to have afree access to the courts for a remedy.The next question is as to whether the right to have a free access to the courtsfor a remedy is infringed by the mere fact that Section 6 of the GovernmentProceeding 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 theconstitutional right to have a free access to the courts for a remedy is notinfringed by the requirement of a ministerial fiat, because he said that was amere procedural matter while the right to file a suit is left intact. That problemcan only be answered by looking at the international human rights instrumentsand other comparative jurisprudence. It is a general principle of law that theinterpretation of our provisions in the Constitution have to be make in the light ofjurisprudence which has developed on similar provisions in other internationaland regions statements of the law. That was the view taken by Nyalali, C.L. In270

the case of Attorney-General v. Lesinoi Ndeinai & Joseph Selayo Laizer and TwoOthers 32 where he said:On a matter of this mature it is always very helpful to consider what solutionsto the problems other courts in other countries have found, since basicallyhuman 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 interpretingthe Constitution the courts have to take into account the provisions of theUniversal Declaration of Human Rights, 1948 and other treaties which Tanzaniahas ratified. That view is also in line with the HARARE Declaration Of HumanRights issued at the end of a high level judicial colloquium of Commonwealthjudges on the tope of Domestic Application of international Human Rights Norms,convened in Harare, Zimbabwe between 19 th and 22 nd April 1989. Our Chiefjustice Hon. Mr. Francis Nyalali attended that colloquium. In their declaration theyendorsed the Bangalore Principles, 1988 to the effect that is it within the propernature of the judicial process for national courts to have regard to internationalhuman rights norms (whether or not incorporated into domestic law) for thepurpose of resoling ambiguity or uncertainty in national Constitutions andlegislation. On the same point see Maxwell on the interpretation of Statutes 34as well as the judgment of Lord Denning,. M.R. (as he then was) in the case ofR.v. Secretary of State for Home Affairs and Another ex parte Bhajan Singh 35Now Tanzania has ratified the following international30 (1975) European Court of justice, International Law Reports 57.31 LESTER, Anthony, “Preparing and presenting a Human Rights Brief” VolumeCommonwealth law Bulletin, 1991, p. 105532 (1980) TLR 21433 Court of Appeal of Tanzania Criminal Appeals No. 44 and 45 of 1985 (Unreported).34 (1969) 2 nd 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 courtswithout any impediment: the Universal Declaration of Human Rights, 1948 inArticle 8, the African Charter on Human and People’s Rights, 1981 in Article 7 (1)Which Tanzania ratified on 18 th February. 1984; the International Covenant onCivil and political Rights, 1966 in Article 2 (3) which Tanzania ratified on 11 thSeptember, 1976. All those treaties ore instruments, including the impediment ofthe requirement of a ministerial fiat. That was what was decade the EuropeanCount of Human Rights in the Goder Case supra) The United National HumanRights committee interpreting that right in the case of Wright v. Madagascar 36held that right of access to the courts is infringed not only when an individual is271

denied the right files suit, but also when restriction are imposed such that. theright to file a suit is rendered illusory or is cumbersome. 37That is not all, as we have also comparative jurisprudence. Nor them Ireland hadhe Ministers and Secretaries Act of 1924 which was in pari material with ourGovernment proceedings Act, 1967 as it required the consent of the Attorney-General before the government was sued. Te supreme Court of Northern Irelandin the case of Masauley v. minister for posts and Telegraphs 38 held that theprovision reusing the consent of the Attorney-General was unconstitutional andso void as I was in Brach of the citizen’s right to have access to the courts for aremedy. 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 Section2 (1) of the Local Administration (Amendment) Act, 1969 No. 2 of 1969 ofUganda) which imposed the requirement of a ministerial fiat before one could suethe government. Justices Jones, Mead and Wambuzi unanimously held that theprovision in question was unconstitutional and void in that it purported to deprivean aggrieved party of the protection of the law given by the Ugandan Constitutionin Article 8 (2) (a) which is the equivalent of our Article 13 (1) and (3) of ourconstitution. Moreover a very powerful Commission known as the NyalaliCommission I Book Three of its recommendations holds the view, that therequirement of a ministerial fiat is unconstitutional because it deprives anindividual the right of a free access to the court, and accordingly it recommended40for its abolitionIn the light of the reasons enumerated above, I am unable to agree with Counselfor the Republic Mr. Nsunguru that the requirement of a ministerial fiat does notinfringe the constitutional right of free access to the courts for a remedy. The rightis infringed in a big way.Granted that the requirement of a ministerial fiat infringes the Constitution, it issaved by the derogation clause or claw-back clause in Article 30 (1) and (2) ofour Constitution for being in public interest. The Tanzania Court of Appeal in thecaw of D,P.P v. Daudi Pete 41 held that a statute which infringed the basichuman rights is not void if the Republic proves that is it in public interest. TheTanzania Court of Appeal made two guide-lines as36 (1985) 2 Selected Decisions of the Human Rights Committee 15137 See p. 45 of the Report of the proceeding of the judicial Colloquium in Harare,Zimbabwe 19-22April, 1989 published by the commonwealth Secretariat in November, 198938 (1966) :I.R. 345.39 (1970) E.A 523 (Uganda)40 See GOVERNMENT OF THE UNTED REPUBLIC OF TANZANIA TheReport and Recommendations of the Residential Commission on Single party ormultiparty system in Tanzania272

1991on the Democratic system in Tanzania ,Dar es Salaam University press1992 (Volume 3) at p. 3041 Court of Appeal of Tanzania of Tanzania at Dar es salaam Criminal AppealNo. 28 of 1990. Reopted in (1991) LRC (CONST) 553.Human Right in TanzaniaTi which law which infringed the basic human rights may be saved by thederogation clause. First the law in question should make adequate safeguardsagainst arbitrary decisions. Secondly the sa8id law should not offend the doctrineof proportionality or reasonableness that is the law should not be too broadlydrafted as to net the innocent and the offenders. I will discuss these two pointsseriatimThe law which is alleged to have been saved by the derogation clause for beingin public interest, must have adequate safeguards against arbitrary deprivation ofbasic human right. The Tanzanis court of Appeal in the Appeal in Daudi Petecase quoted with approval the decision of the Supreme Court of India in the caseof Maneka Gandhi v. Union of India 42 to the effect that any law which does nothave adequate safeguards and effective control against arbitrary interferencesby public authorities whit the rights safeguarded is not law. A lawful law impliescompatibility 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 alaw, 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 Nyalalimade a pertinent remark when addressing heliacal community at the Universityof Dar es Salaam in 1985 on the topic” The Bill of Rights in Tanzania when hesaid:This overriding of rights and duties of the individual by rights and duties of thecommunity does not however entail arbitrary action on the part of thecommunity or its institutions. As illustrated by the provisions of Article 30 (2) ithas to be done according to law 45273

The European Court of Human Rights has also held in the Silver Case 46 that alaw that infringes basic human rights without any adequate safeguards againstarbitrary 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 anysafeguards against arbitrary action by the Minister for justice. The arbitrarinessand oppressive natre of the Government proceedings Act. 1967 has beenamply documented see Report of the Nyalali Commission. Book three 47 and theL L. M. Dissertation of 985 by Law Lecture of the University of Dar es SalaamMr. M.K.B. Wambali titled “ The tort Liability of the Government in Tanzania TheImpact of the Government Proceeding Act 1967 on the Rights o IndividualClaimants 48 Firstly there is no appeal against the decision of the Minister forJustice contrary to Article 13 (6) (a) of our Constitution Secondly there is alllikelihood that the ministerial power may be grossly abused as the Act does notprovide for restrictions of any type of the minister. Thirdly, there are no guidelineslaid down for the Minister to follow in exercising this power. We are all atthe mercy of his idiosyncrasies Fourthly, there is no obligation imposed on thepart of the minister to answer the application and so ministerial power manyaffect he period of limitation. Finally the consent requirement has an extremelygreat likelihood of not serving the ends of justice, for how come that thegovernment is adjudge own course? The decisions will always be at the expenseof 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 Press1965, p. 3745. This speech is reproduced in Volume 8 Dar es Salaam University LawJournal, 1991, p. l.46 (1983) 5 E.H.R.R. 34747 GOVERNMENT OF THE UNTED REPUBLIC OF TANZANAI The Report andReport and Recommendations of the Residential Commission on Single party orMultiparty 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 JusticeThere can be no doubt that the ministerial fiat requirement has been used by thegovernment as a tool of oppression against the people it governs. That much hasbeen documented by Mr. Wambali in his dissertation. He found that one couldhardly make our tangible principles by which the minister for justice will be guidedin according the decision whether or not consent should be granted. He foundthat in each case any plausible justification was made for either a grant or a274

efusal in short the decisions were found always to be palpably arbitrary.Examples are cited in the thesis wherein consent was refused simply becausethe minister thought if the matter went to court a good quainter of damageswould have been awarded by the courts to the claimant on merits. In other casesMr. Wambali found that in many instances the minister reached his manifestlyadverse decision without referring to any supporting legal authorities or basingthem on incorrect point of law. Another valid complaint to be discovered was helength of time taken to deal with the application. It usually takes an unnecessarilylong time. He found that out of the 58 tort claims he studied, only 6 application forconsent were granted by he minister, that is about 10 per cent; and it took theaverage of four years to reach the decision either way. Certainly that is aninordinately very long time to reach decision. Taking into account the fact that theperiod 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 toCommemorate 25 years of the Faculty of Law, held between 20 th and 25 thOctober 1986 at the University of Dar es salaam titled “the Enforcement of theBill of Rights Against the Government”Others to document the oppression rendered by the requirement of theministerial fist is Dr. Chris Maina Peter, a lecturer at the Faculty of Law of theUniversity of Dar es Salaam in his article “Five Years of the Bill of rights toTanzania Drawing a Balance sheet published in the African journal ofinternational and Comparative Law 49 where he statesThe most conspicuous and frustrating among the rights denied to the citizen isthe right to sue the government. It seems as if the governments has resolved toprotect itself. This protectionist attitude of the government is codified through theGovernment Proceedings Act, 1967. This strategic legislation insulates thegovernment from all claims in a feudalist manner According to this law, anybodywanting to sue the government has first to seek permission is a tussle whichtakes time / In some cases it has taken years to get the holy permit. This is notan accident; it has a meaning. The time factor is intended to wear out theclaimant and force him to settle the matter our of court with the government. Ifhe insets on proceeding with the case, then time will have taken its toll and it islikely that some of the key witnesses will have died, been transferred or simplyforgotten what transpired in relation to the issue being litigated. The legislation isquite irrational The cruelty of this sadism reaches the climax when the applicanthimself dies while waiting for the Attorney-General’s permission to enable him topursue his rights through the courts of law. This happened in the case of ScarionBruno.Others who have made similar adverse remarks against the Governmentproceedings Act. 1967 include prof. Issa G. Shivji in his article State and275

Constitutionalism in Africa: A New Democratic Perspective in the InternationalJournal o the Sociology of law 50And as I said earlier there are no safeguards and effective control against anygross abuses that they may be committed by the Minister fro Justice. The StateAttorney Mr. Nduguru must have been kidding when he submitted that the law inquestion is in public interest. To the contrary it is the public who are beingoppressed. Mr. Ndungure should respect the maxom “no research no right tospeak It is my finding that as the Government proceedings49 See PETER, Chris Maina , Five years of Bill of Rights in Tanzania Drawing Abalance sheet” Volume 4 part I African journal of International and comparativelaw, 1992 p. 13150 Volume 18 international journal of the Sociology of law, 1990, p. 381 at 401Act, 1967 has no safeguards and effective control against gross abuses as amplydocumented above, it is not a lawful law. It is void and unconstitutionalIt is also my considered view that the government Proceedings Act, 1967 offendsthe doctrine of proportionality. This principle of proportionality requires that themeans employd by the government to implement matters in public interestshould be no more than is reasonably necessary to achieve the legitimate aims.In other words the government must show that the restriction imposed on abasic human right is required by a compelling social need and that it is soframed as not to limit the right in question more that is necessary orproportionate to achieve a legitimate objective. The Court of Appeal of CookIslands in the case of Clarke v discusses the doctrine. karika 51 and by theSupreme 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 mentionedabove quotes a number of cases decided by the Supreme courts of manycommonwealth countries which consider the principle of proportionality to ve aswell established to be part of the public law or administrative law. In the U.S.Athe U.S Supreme recognized the principle of proportionality by the U.S SupremeCourt in case of procurer v. Martinez 53 While the European Court of HumanRights has invoked that doctrine in outlawing laws going against basic humanrights in the Sunday Times Case 54And the Sliver Case (supra). In England the doctrine of proportionality isconcussed in Halsbury’s laws of England 55 and see also the case of Johnstonv. Chief Constable of the Royal Ulster Constabulary. 56 In Tanzania the doctrineof proportionality was expounded by the Tanzania court of Appeal in the D.P.Pv. Daudi Pete case wherein it is stated that the law being defended for being in276

public interest should not be too broadly drafted such that its provisions arecapable of depriving personal liberty not only to persons who are considered tobe 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 humanswithout distinction.Now the Government proceedings Act, 1967 offends the doctrine ofproportionality because it is so broad such that is denies a effective and promptremedy to all and sundry without distinction – even to those who have a clearand genuine grievance against the government. I see no compelling social needto have restriction to sue the government,. Whereby the rights of citizens aremarginalized and emasculated. The State Attorney Mr. Ndungure argued that thecourts will be flooded with cases when the government is allowed to be suedwithout fiat; and also that the government will not be able to function smoothly iffrivolous and vexatious case are freely allowed in courts against the government.Such arguments are preposterous and without substance. Nearly all countries ofthe 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 inone part of Tanzania that is in Zanzibar the right to sue the Government of theUnited Republic without ministerial fiat is recognized and no problems mentionedby the State Attorney are encountered there. In his article in the journal of thejudges and magistrates Association of Tanzania 57 the Hon Mr. JusticeRamadhani (than Chief justice of Zanzibar) mentions three cases in which theUnion Government has been sued without the fiat51 (1985)LRC(Const)732 (Cook)is,CA).52 (1986) LRC) Const 332 (Can. SC).53 (1074 416 US 396 at p. 41354 (1979 2 E.H.R.R. 24555 4 th Edition Volume 51 at para 2.29656 (1987 Q.B. 129 at p. 15157 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 AbeidHamad v. The Director of Civil Aviation (Supra). In Zanzibar all what one has todo before suing the government is to give a month’s notice to the government.277

That is a sufficient and reasonable restriction against suint the government. Thatlegislation in Zanzibar is in line with the doctrine of proportionality as it does notlimit the right of access to the courts more than is necessary or proportionate toachieve a legitimate objective. The law in Tanzania Mainland id based on theunjustifiable protectionist attitude or fear that the government may be involved inuncontrolled litigation. Thus ending in serious losses of revenue But thatargument cannot hold water when one considers the high capability of thegovernment to distribute the losses suffered through some fiscal measures, suchas taxation.The courts of course will always recognize that the State enjoys a “margin ofappreciation” 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 aninterference with the basic human right are relevant and sufficient. In the case inhand the government has failed to establish on a balance of probabilities that therequirement of a ministerial fiat is for a given pressing social need and that therestriction is framed such that as not to limit the right protected more than isnecessary. In short the government has failed to prove that the restrictions on theright to have free access to the courts is proportionate and closely tailored to theaim sought to be achieved.There is also another dimension. In view of the fact that Tanzanians of Zanzibarcan sue the Union government without a ministerial fiat, while their counterpartsin Mainland Tanzania cannot do that, a case is made out to the effect that thegovernment 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 justbecause of their “place of origin” see Article 12 (5) of our Constitution whichdefines what discrimination means As the law now stands that the Tanzanians ofZanzibar are more equal than the Tanzanians of the mainland. That is not ahealthy situation.The practice of the requirement of a ministerial fiat before one can sue thegovernment, defeats the general spirit underlying the government proceedingsBill of 1967. The statement of the objects and reasons of the Governmentproceeding Bill of 1967 was said to be “That in a modern democratic State, it isright that the government should be able to sue or be sued as if it were a privateperson of full capacity. “And that the Bill sought to reform the law relating o civilproceedings in courts by or against the government, as the law hitherto in278

operation was “thoroughly outdated” 58 In its Fundamental Objectives andDirective Principles of State policy the Constitution in Article 9 (1) (k) stated thatTanzania is a democratic state. Then why did the governments out of the blues in1974 by Government proceedings (Amendment) Act, 1974 59 re-introduce theministerial consent requirement when in 1967 it was stated to be undemocraticand outdated? Is Tanzania not a democratic state now? And is t=it not axiomaticthat the law in question is outdated? That law finds its roots in ancient EnglishConstitutional mythology about the divine nature of kingship that the King can dono wrong” and that the king cannot be sued” But that is48 See Attornery-General Mr. Mark Bomani in Hansard Majadiliano ya Bunge1967-Mkutano wa Nane-11 th April to 18 th , April, 1967 at p. 10859 Act No. 40 of 1974.279

An anachronism in a democratic state like Tanzania. Even in England itself theposition changed since 1947 whereby a citizen can sue the government as ofright. And nearly all the Commonwealth countries have done away with therequirement of a ministerial fiat. Tanzania is an odd man out.The requirement of a ministerial fiat militates against the principle ofaccountability and the often quoted principle of openness and transparence ofthe government. The Ontario Law Reform commission of Canada in its reportheaded “Report on the Liability of the Crown, 1989” reported in thecommonwealth Law Bulletin said:The present law governing liability of the Crown, in so far as it still providesprivileges and immunities not enjoyed by ordinary persons is inconsistent withpopular conception of government: Crown immunities are particularly contrary toa deeply – held notion that the government and its – officials ought to be subjectto the same legal rules as private individuals and should be accountable toinjured citizen for its wrongful conduct. A key clement of this concept is the factthat the application of ordinary principles of law to government id placed in thehand of the ordinary courts, who are independent of government and thereforecapable of being relied upon to award an appropriate remedy to a person whohas been injured by unlawful government action 60At the end of the day, the Ontario Law Reform Commission recommended theabolition of the requirement of the ministerial fiat, as it was also found to beinconsistent with the Canadian Charter of Rights and Freedoms.In Tanzania under one-party democracy, the spurious justification for having arequirement of the ministerial fiat, was espoused by same party fundamentalists(Wakereketwe) who nursed the idea that the government under the leadership ofthe Chama Cha Mapinduzi (C.C.M) party which had a clear and corrects ideologyhad a greater public interest to preserve and a monopoly of what is good for thecountry and therefore cannot be let to be scandalized in courts by individuals withimpunity. However that view cannot prevail now with the advent of multi-partydemocracy will continue bit by bit to wrench away the mask of invincibility andimpenetrability that the government sought to wear for many years under onepartyrule. 61 Thus the vulnerability of the government to give way for moredemocratic 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 isunconstitutional and so void. I so declare under Section 5 (1) of Constitution(Consequential, Transitional and Temporary Provisions) Act, 1984 as well asArticle 64 (5)of the Constitution. For sure by this step, the C.C.M government willrejoice because in the 1990 Election Manifesto, the said C.C.M governmentpledged to get rid of all the problems that plague the people (kuwaondoleawananchi mambo yote yanayowakera). The requirement of a ministerial fiat tosue 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 wasundemocratic and outdated is gone forever, and it is now part of the legal folkloredestined for the dustbin. The Judiciary as an organ of the government hasplayed its noble part to get rid of a matter that has been plaguing the people forfar too long. It is pertinent to remark here that the government in the past and inthis case had insisted to be joined as a co-defendant not as a philanthropistwishing to bail out their distressed civil servant but for their own ulterior60 Volume 16 No. 3 Commonwealth Law Bulletin. July, 1990 pp. 855-859 at p.85661 See the debates in parliament during the passing of the 9 th ConstitutionalAmendment Act of 1992Right of Access to justiceMotives. They have been using the requirement of a ministerial fiat not as ashield to protect their own legitimate interest but as a sword to frustrate genuineclaims. In this case I told the State Attorney that the government’s interests willbe properly safeguarded if they merely provided legal representation to thedefendant but they refuse, ad instead to e joined as co-defendants. In the casesof Rev. Christopher. Mtikila v. The Editor, Business Times and Another 62 thegovernment tried to use that ploy of using the law as a sword to frustrate theplaintiffs claims, but it was nipped in the bud by Samatta, J.K who held that thegovernment need not be joined as a co-defendant. In this respect Dr. ChrisMaina Peter in his article in African journal of international and Comparative Law63graphically illustrates the point raised thusPractice indicates that even where a person in an attempt to avoid thisrequirement of getting government approval, decides to sue the governmentofficer alone without joining the government insist on being joined as arespondent. Worse still, once the government, if joined, then it invokes therequirements of the Government proceedings at its own request. This is281

exactly what happened in the case of Patrick Maziku v. G.A Sebabili and 8others (supra).However, in this case the ploy has boomeranged. The governments had beenhosted by its own petard.Be that as it may. In the event the preliminary objection raised by the Republic isdismissed, The suit will proceed to trial as scheduled. Costs in the cause. Orderaccordingly.Pumbun and AnotherVersusAttorney-General and Another 64The appellants sought to sue the government in the High court to recoverdamages for trespass, assault an conversion. The necessary. Fiat or consentimposed by Section 6 of the Government Proceedings Act, 1967 65 had beensought but was withheld. Upon consent being withheld the court was called uponby the appellant to declare the relevant Section unconstitutional for it impedes orobstructs access to High Court enshrined under Articles, 13 (3) and (6) (a) and30 (3) of the Constitution. They further contended that Section 6 also infringesArticles of the Constitution which make provisions for separation o powers,namely Articles4 (1) 108 and 13 (6) (a) which generally confer jurisdiction on theHigh court to hear and determine claims on the Basic Rights in a fair62 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 ABalance-Sheet, opcit.64 Court of Appeal of Tanzania at Arusha, Civil Appeal No. 32 of 1992 Reportedin (1993)2 LRC 317 (Coram: Kisanga J.A Mnzavas. J.A. and Mfalila J.A) Appealform the judgment and Decree of the High ‘Count of Tanzania at Arusha, Munuo282

J. dated the 24 th day of October, 1991 in Civil Case No. 31 of 1991 Done at Dares Salaam on 23 rd 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 TanzaniaHearing. And that the Act was discriminatory in that no such requirement ofconsent is imposed in Zanzibar, which is also a part of the United Republic. Andlastly, the Section offended the principle, which requires the government to beresponsible and accountable to its people openly and with transparency.The government argued adversely that the Section was not unconstitutionalbecause the complainant of the violation against the government has alwaysalternative remedies available to him such as orders of mandamus an certiorari;and that the Section is justified on grounds of public interests because it enablesthe government to regulated and control suits against it, it is a brake to afloodgate of frivolous and vexatious litigations which would embarrass thegovernments, and the government has the bigger responsibility of looking afterthe wider interests of the society than an individual, thus the two can not betreated equally.The Court of Appeal held that Section 6 of the Government proceeding Act, 1967violated the basic human right of unimpeded access to the court as guaranteedin the constitution. On the issue of alternative remedies the court stated that therelevant provision of the Constitution says that an aggrieved person may seekredress in the High Court, and that this is without prejudice to any other publicinterest in that it was apparently arbitrary for It did noy provide for any procedurein the exercise the minister’s powers, or any time limit within which the minister isrequired to give his decision, nor were thee proper safeguards against abuse ofthe powerJudgmentKisanga,J.AThe appellants in this case sought to sue the Government in the High Court torecover damages for trespass, assault and conversion. The plaint allege, amongother things, that the necessary fiat or consent to sue the Government had been283

sought but was withheld The requirement for consent to sue the Government isimposed by Section 6 of the Government proceedings Act 1967 66 .as amendedby Government proceedings (Amendment) Act, 1974 67 (hereinafter to bereferred top simply as Section 6) upon consent being withheld therefore, theHigh Court was called upon by the appellants to rule on the constitutionality ofSection 6 and to hold that that provision was null and void as against theConstitution of the united Republic of TanzaniaThe respondent Republic did not wish to file any written statement of defense tothe claim instead it lodged with the court a preliminary objection that the suit wasincompetent for want of the Attorney-General’s consent to sue the Government.The case was then adjourned, upon application by Counsel, for writtensubmissions after which the Court (Munuo, J. Mrs.) Ruled that Section 6 was notunconstitutional and proceeded to dismiss the suit as being incompetent. It isfrom that ruling that this appeal now arises Arguing the appeal before us wereMr. A. Mughwai, learned advocate, for the appellants, for the appellants andMrs. 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 withheldas claimed by the appellant’s Coursed. However, this doubt was resolved whencounsel for the appellants furnished the court with documentary evidence thatconsent was in fact sough and refused. Upon receipt of this information Mrs.Sumari stated that high to she had been acting on wrong information soughtfrom and supplied by the Attorney-General’s Chambers, Dar es salaam66 Act No. 16 of 1967.67 Act No. 40 of 1974.That the appellants had not applied for any consent to sue the Government sheadded that because of such misinformation she did not address the real issuewhich was before the High Court, namely, the constitutionality of the requirementof consent she had concentrated on the contention that the suit was incompetentfor want of consent. Asked what course she proposed to adopt now that she wasinformed of the true position, she readily replied that the hearing of the appealshould continue, adding that during the short adjournment she had preparedherself sufficiently to respond to Mr. Mughwai’s submissions. On that not wewent on the complete the hearing of the appeal and to conclude the matter even284

though we felt that the learned State Attorney needed more predation in order toassist the Court in dealing with the appeal which raised an importantconstitutional issue.The memorandum, of appeal raised two grounds:1. The Honourable judge erred in law in not determining the realissue before the Court, i.e. The interpretation and Constitutionalityof the provisions of Section 6 of the government proceedings(Amendment ) Act No. 40 of 1974 vis –a-vis the Constitution ofTanzania .2. The Honourable judge erred in failing to hold that Section 6referred to in paragraph 1 herein is un-constitutional obsolete andthat where there is a dispute between a citizen and the Executive,The executive cannot lawfully impede or obstruct access to HighCourt.,On the first ground that the trial judge failed to consider and determine theissue before her, that is, the constitutionality of Section 6, we think that theeis merit in the complaint. Upon reading her brief ruling on the matter,covering just about two pages, it becomes apparent that the learned judgeeither did not comprehend the issue before her or, if she did, she deliberatelyevaded it. Paragraph 11 of the paint states, inter alia, that,The plaintiffs will canted at the trial that it is not in law necessary toobtain the fiat as such requirement is null and void as it seeks tocontravene the basic structure of the Constitution of Tanzania andits specific provisionsAnd in his fairly detailed written submission to the Court, Counsel for theappellants specifically called upon the court to consider the validity of Section6 as against Articles 4 (1), 108 and 13 (6) (a) of the Constitution. TheseArticles make provisons for separation of powers confer jurisdiction on theHigh court to hear and determine complaints and provide for the basic right toa fair hearing. Counsel had submitted that Section 6 contravened theseprovisions of the Constitution and accordingly invited the court to declare thatSection null and void.In disposing of the very briefly the trial judge simply said:285

Considering that the Government proceedings Act, 1974 wasproperly enacted by Parliament as stipulated in Article 97 of theConstitution of the United Republic of Tanzania it is sound law anddoes not infringe the provisions of Article 13 and or Article 108 ofthe Constitution.In our view this was, to say the least, a very superficial way of dealing with theissue which was before the court. For, the fact that Section 6 was dulyenacted by a competent Legislature is no answer to the question whetherthat Section is valid or not as against the Constitution. It is one thing for aprovision 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 improperlyenacted by the Legislature Their claim was that Section 6 although properlyand duly enacted by the Legislature, offended some provisions of theConstitution, 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 theirgrievances heard and determined by the High Court which was duly vestedwith such jurisdiction. Therefore what the appellants were asking for was adeclaration under Article 64 (5) of the Constitution that Section 6 was null andvoid because it was inconsistent with the supreme law of the land. Thelearned judge in merely stating that Section 6 was sound law because it wasproperly enacted by a competent Legislature, did not address herself squarelyto 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 thematters 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 downbecause it violated the guaranteed right, under the Constitution. Ofunimpeded access to the Courts to have one’s grievances heard anddetermined. 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 hereinbelow for ease of refernce:13.(3) The civil rights, obligations and interests of every person and of thesociety shall be protected and determined by competent courts of law andother 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 makeprovisions286

(a). that every persons shall, when his rights and obligations are beingdetermined, be entitled to a fair hearing by the court of law or other bodyconcerned and be guaranteed the right of appeal or to another legal remedyagainst the decisions of courts of law and other bodies which decide on hisrights or interests founded on statutory provisions30. Where any person alleges that any provisions of this part of this chapteror any law involving a basic right or duty has been is being or is likely to becontravened in relation to him in any part of the United Republic he maywithout prejudice to any other action or remedy lawfully available to instituteproceedings for relief in the High Court.Learned Counsel submitted that the combined effect of violating theseprovisions has far reaching consequences. It means that section 6 places anobstacle or obstruction to access to the courts of law. The Section offends theprinciple of separating of by power enabling the Government to be the judgein its own cause. It also seeks to limit government liability at the expense ofthe rights of the individual. It offends against the principle which requires theGovernment to be responsible and accountable to its people. It goes againstthe principle of openness or transparency.Referring to Articles 30 (2) of the constitution which permits derogation fromhuman rights in certain circumstances, learned counsel was of the view thatSection 6 is not saved because it is too general it its applicationReplying to those submission Mrs. Sumari supported the decision of the HighCourt that Section 6 was not unconstitutional. If we understood her correctlythe 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 Sectionunconstitutional because the complainant of the violation has remedies opento hem, such as orders of mandamus and certiorari. |n other wards, if theGovernment withheld the consent, the appellants could always seek remedyfor this by asking for an order of mandamus or certiorari compelling theGovernment to give consent or not to withholdRight of Access to JusticeWith 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 argumentmerely echoes the provisions of Article 13 (3) of the constitution. That Articlesays that an aggressed person may seek redress in the High Court, and that this287

is without prejudice to any other remedy which may be available to him, Thismeans that the complainant of a violation of a basic human right is free to seedredress under Article 30 (3) although he could equally well have sought relief byway of mandamus or certiorari. Therefore if the appellants in this case chosethe seed remedy, as they did under Article 30 (3) they were exercising theirconstitutional right as to which procedure to follow in seeing redress. There canbe no justification whatsoever for saying that because Section 6 presents anobstacle, the complainant of a violation of this basic human right should berestricted to other forms of remedy. A complainant should be free to choose thebest method legally open to him to prosecute his cause.In the instant case it was open to th3e appellants to proceed for redress underArticle 30 (3) of the constitution. Section 6 which denies them this constitutionalright cannot be said to be valid merely because the appellants could haveremedy elsewhere; that would amount to going round the problem instead ofstriking at it directly against the Constitution itself.Mrs. Sumari also claimed that Section 6 was justified on ground of publicinterests. By this we understood her to say that the Section was saved by Article30 (2) of the Constitution which permits derogation from basic human rights incertain circumstance She contended that Section 6 was necessary because itenabled the Government to regulate and control the suits which are broughtagainst it She was of the decided view that if Section 6 were to be removed, thatwould open flood gates of frivolous and vexations litigation which wouldembarrass the Government and take up much of its time that could be betterspent on matters connected with the development and welfare of the members ofthe society generally. In this regard the learned State Attorney urged that theGovernment and the individual are not and cannot be, equal because theGovernment has the responsibility of looking after the wider interests of thesociety at large.On the material before us we have no difficulty in holding that Section 6 violatedthe basic human right of unimpeded access to the court to have one’s grievanceheard 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 theRepublic did not seriously dispute this ./ the main point of contention by theRepublic was that the violation did not invalidate Section 6 (the requirement ofconsent to sue) because where such consent was withheld, the the victim wasnot without remedy he could apply for orders of mandamus or certiorariHowever, we have rejected that argument for the reason given earlier in thisjudgment.288

The more difficult question is whether Section 6 is saved by articles 30 or 31 ofthe Constitution which permit derogation from basic human rights in certaincircumstances Article 31 Which relates to measures taken during the period ofemergency is obviously inapplicable here. And as far as Article 30 in concernedonly sub-article (2) is relevant it provides that:30 (2) it is hereby declared that no provision contained in this part of thisconstitution which stipulated the basic human rights freedoms and duties, shallbe construed as invalidating any existing law or prohibiting the enactment of anylaw 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 arenot prejudiced by the misuse of the individual rights and freedoms;(b) Ensuring the interests of defense, public safety, public morality, publichealth, rural and urban development planning the development planningthe development and utilization of mineral resources or the developmentor utilization of any other property in such manner as to promote the publicbenefits.(c) Ensuring the execution of the judgment or order of a court given or madein any civil or criminal proceedings;(d) The protection of the reputation rights and freedom of theirs or the privatelives of persons involved in any court proceedings, prohibiting thedisclosure of confidential information, or the safeguarding of the dignityauthority and independence of the courts;(e) Imposing restrictions, supervision and control over the establishment,management and operation of societies and private companies in thecountry; or(f) Enabling any other thing to be done which promotes enhances or protectsthe 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 Criminalprocedure Act, 1985 68 which denied bail the accused in a criminal case in certaincircumstances. In that case it was recognized that because of the co-existencebetween the basic rights of the individual and the collective rights of the society itis common nowadays to find in practically every society limitation to the basicrights of the individual So that the real concern today is how the legal systemharmonizes the two sets of rights, In trying to achieve this harmony, the view hasbeen that in considering any act which restricts fundamental rights of theindividual such as the right of free access to the court of law in this case thecourt has to take into account and strike a balance between the interests of theindividual 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 alaw which seeks to limit or derogate from the basic right of the individual ongrounds of public interest will be saved by Article 30 (2) of the constitution only ifit satisfies two essential requirement First, such a law must e lawful in the sensethat t it is not arbitrary It should make adequate safeguards against arbitrarydecisions and provide effective controls against abuse by those in authority whenusing the law. Secondly the limitation imposed by such law must not be morethan is reasonably necessary to achieve the legitimate object. This is what is alsoknown as the principle of proportionality. The principle requires that such lawmust not be drafted too widely so as to catch everyone including even theuntargeted members of the society. If the law which infringes a basic right doesnot meet both requirements such law is not saved by Article 30 (2) of theConstitution, it is null and void And any law that seeks to limit fundamental rightsof the individual must be construed strictly to make sure that it conforms withthese requirements otherwise the guaranteed rights under the Constitution mayeasily be rendered meaningless by the use of the derogative of claw-backclauses of that very same ConstitutionWe 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 beinstituted against the Government without the previous consent in writing ofthe minister;The Section carries a proviso which is not relevant to the facts of the presentcase68 Act No. of 1085.,Right of Access to JusticeIt is most apparent that the law is arbitrary. It does not provide for any procedurefoe exercise of the Minister’s power to refuse to give consent to sue theGovernment. For instance, it does not provide any time limit within which theMinister is to give his decision., which means that consent may be withheld for anunduly long time. The Section makes no provision for any safeguards againstabuse of the powers conferred by it. There are no checks or controls whatsoeverin 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 theministry go give consent. Such law is certainly capable of being used wrongly tothe detriment of the individual.290

Turning now to the requirement that the law must not be drafted tow widely it soobvious once again that Section 6 does not pass that test either. The Sectionapplies to all and sundry including even those against whom it was neverintended. If, as contended by Mrs. Sumare, the object is to exclude or discouragethe bringing of frivolous and vexations litigation against the Government it is notshown how that object is achieved without also limiting the right of persons whohave genuine and legitimate claims against the Government.Even if the limitation imposed by Section 6 could be selective, the pertinentquestion 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 tobring 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 gatesof frivolous and vexations suits against the Government such as to embarrassthe Government and to take up much of its valuable time which could be betterspent else how. But apparently anticipating Mrs Sumar, Mr. Mughwai in hisaddress earlier on had argued that there was no such limitation imposed inrelation to suits against local governments where the only requirement is amonth’s notice to sue, and yet the Courts have not been flooded with suitsagainst local government. When we asked Mrs. Sumarei to respond to thatargument she was ill at ease to do so.On this same point Mr. Mughwai had submitted that the law in Zanzibar did notimpose such limitation and yet it is not show or claimed that the Courts inZanzibar have been flooded with frivolous and vexations litigation against theGovernment. In another dimension the learned Counsel charged that in thiscontext Section 6 was discriminatory and hence unconstitutional . He referred usto the decision of the High Court (Mwalusanya,J) in the case of Peter Ngomangov. Gerson M. K. mwangwa and Another (supra) in which this same issue ofministerial fiat or consent had been raised. There the learned judge cited threecases of the Zanzibar High Court in which no consent. But only a month’s noticewas required to sue the union Government. The three cases are Himidi Mbaye v.theBrigade Commander of the Nyuki Brigade (supra) shabani Khamis v. SamsonGoa and Another (supra) and Khalfan Abeid Hamad v The Director of Civilaviation (supra) Mwalusany, J. took the view that Section 6 was discriminatory inas 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 anydiscrimination, to equal opportunity before and protection of the law;(2) Subject to this constitution no legislative authority in the United Republic shallmake any provision in any law that is discriminatory either of itself or itself or in itseffect.On a similar reasoning we reject Mrs. Sumari’s submission that because theGovernment is responsible for the wider interests of the society then it shouldbe place on an equal footing with an ordinary person . We can find no justificationfor the distinction. We think that the equality before the law envisaged in Article13 (1) above embraces not only ordinary person but also the Government and itsofficials; all these should be subjected to the same legal rules.While advancing the argument of a compelling need for limitation Mrs. Sumareagain claimed that the requirement of consent was necessary in order to giveGovernment the opportunity during which to study the proposed claims andwhere arranged, to consider settlement our of Court. This, she said, spared theGovernment of the embarrassment of appearing in court and saves its valuabletime to sever the wider public. We could find no substance in this argument. TheGovernment can achieve all this within the normal procedure of bringing civilsuits. Ordinarily before a person decides to sue the Government. There must besome prior communication between the Peron intending to sue the Governmentand the Government in which the fermer will have indicated sufficiently thenature and grounds of his claim. Thus if the Government so wishes, it can assessthe claim and where warranted consider settlement out of court during such presuitcommunication. The requirement of consent to sue is really not necessary forthe for the purpose of affording he Government time to assess the claim andconsider settlement out of court. On the other hand we agree with the learnedjudge in Ng’omango’s case above that such restriction militates against theprinciples of the good governance which call for accountability and openness ortransparence on the part of Government.Therefore, unlike the learned judge from whom this appeal arises, we find thatSection 6 of the Government proceedings Act 1967 as amended by Section 6 ofGovernments proceeding (Amendment) Act, 1974 is unconstitutional for thereasons we have amply demonstrated above. the Republic has totally failed toshow that the said Section is saved by the provisions of the Constitution whichallow for derogation from basic human rights. In the circumstances we have noalternative but to hold, in terms of Article 64 (5) of the constitution of the UnitedRepublic of Tanzania that Section 6 for the Government proceedings Act, 1967as amended by Government proceedings (Amendment) Act, 1974 id void. It isaccordingly struck down for being unconstitutional292

The appeal is allowed with cast, and the preliminary objection having failed, thesuit is to proceed in accordance with the lawHimidi MbayeVersusThe brigade Commander of Nyuki Brigade 69The plaintiff in this case, himidi Mbaye was suing for rent for four month; returnof pieces of furniture and other utensils; and compensation for the damage of thishouse from the defendant. The facts of the case were not in dispute. Whatcomplicated the case the legal personality of the defendant. The defendant wasthe commander for the Nyuki Brigade in Zanzibar one of Brigades of theTanzania peoples Defense Forces (T.P.D.F.) is a department of the Governmentof the United Republic of Tanzania and not of the Revolutionary Governmentof Zanzibar. In addition, National Defense ( ulinzi wa taifa) is a Union Matter asstipulated in the Constitution of the United Republic of Tanzania of 1977. thus,the defendant is an officer of the Union Government69 High court of Zanzibar at Zanzibar High court civil case No. 8293

5 GROUNDS1. Amri Juma & 15 others v Tha , Misc. Civil case No. 37of 1980 HC at Dar-es-salaam2. CCSU v Minster for civil service (1985 ) AC 3853. . I.S Msangi v JUWATA & Anor. (1992 TLR 259 (CA)4. Mwakibete v principal secretary & AG, civil Appeal No27 of 19925. Sylvester Cyprian & 210 others v university fo Dar essalaa. Misc. civil Application No 68 of 1994294

6. Tanzania Air service ltd v minister of labour & othersmisc/ civil cause no. 1 of 1995`504ALL England Law Reports (1975) 1 All ERone 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 beenseparated our deemed to be disposed of for the purposed of capital gains tax. Itseems to me that that is really a very odd use of these two subsections295

It seems to me that that was not what was contemplated at all and that one is stillin the same dilemma and difficulty, because here the unseparated out three outthree quarter would then be the settled property and not a part of the settledproperty because the life interest would have had no connection with theseparated out quarter. So I do not think counsel for the Crown’s counter attackadvances his position at all Accordingly it seems to me that the argument ofcounsel for the Crown proves too much; if he were correct as I see it there25 (12)would not be any necessity for s at allTherefore on those two short grounds but especially the first one namely that theword part in my judgment properly includes and was obviously so far as I can seehaving regard to the way in which sub-s (4) was framed intended to include afraction-the case for the trustees appears to me to be established and theappeal of the Crown equally in my view is doomed to failureAppeal dismissedSolicitors: Solicitor of inland Revenue Stanley’s Simpson north agents forChapmanAMERICAN CYANAMID CO V ITHICON LTDHOUSE OF LORDSLORD DIPLOCK VISCOUNT KILHORNE LORD CROSS OF CHELSEA LORD SALMON AND LORDEDMUND DAVIES12 TH 14 TH November 1974 5 TH February 1975Injunction – interlocutory – principle governing grant- prima facie case- seriousquestion to be tried – Unnecessary for application to establish prima facie case –Open to court to con-seder whither on balance of convenience interlocutoryrelief 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 ofconvenience lies infamous of granting or refusing relief296

A company (Cyanamid) register a patent in the united kingdom for the use asabsorbable surgical sutures of filaments made of particular kind of chain polymerknown as a polyhydroxyacetic ester (PHE) the sutures were of a kind thatdisintegrated and were absorbed by the human body once that had saved theirpurpose the priority date of the patent was 2 nd October 1964. At that date theabsorbable sutures commonly in use were made from catgut. A rival companyethical were the main suppliers of catgut sutured in the United kingdomCyanamid introduced their patented product in 1970 and by 1973 had capturedsome 15 per cent of the United Kingdom market for absorbable surgical suture.In order to meet the competition from Cyanamid, Ethic on proposed to introducetheir own artificial suture (ALG) the chemical substance of which PHAE wasmade was a photopolymer whereas the substance of which XLG was made wasa copolymer. InHLAmerican Cyanamid v Ethicona. March 1973 Cyanamid brought a quiet timer action against Ethicon,claiming an injunction to restrain a threatened infringement of their patentby supplying XLG sutures to the surgeons in the United Kingdom , andgave notice of motion for an interlocutory injection At the hearing of themotion a large body of conflicting affidavit evidence was advance by bothparties on the issue whether the use of XLG as an absorbable surgicalsuture would constitute an infringement of Cyanamid ‘sb. Patent. The patent judge held that on the available evidence Cyanamidhad made out a strong prima facie case against Ethicon and that on abalance of convenience an interlocutory injection on an undertaking indamages by Cyanamid, should be granted to maintain the status quobetween the parties pending the trial of the action. On appeal, the Courtof Appeal reversed that decision on the ground that on the evidenceCyanamid had not made out a prima facie case of infringement andc. That there was a well established rule of la hat a court was precluded fromgranting an interlocutory injunction or from considering the balance ofconvenience between the parties unless the evidence adduced at thehearing of the application satisfied the court on the balance of probabilities297

that at the trial the plaintiff would success in establishing his right to apermanent injunction. Cyanamid appealed.d. Held – the appeal would be allowed and the order of the patent judgerestored for the following reasons (i) The grant of interlocutoryinjections for infringement of patents was governed by the sameprinciples as those in other actions. There was no rule of law that the courtwas precluded from considering whether, on a balance of convenience aninterlocutory injunction should be granted unless the plaintiff succeeded inestablishing a prima facie case or a probability that he would besuccessful at the trial of the action All that was necessary was that thecourt 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 510b to d and f and p 512 f to j, post). (ii) The affidavit evidence showed thatthere were serious question to be tried and hat it was therefore necessarythat the balance of convenience should be considered.e. The factors which the judge had properly taken into account in consideringthe balance of convenience were that Ethicon which had a dominantposition in the market for absorbable surgical sutures, had not yet putXLG sutures on the market whereas Cyanamid were in the course ofestablishing a growing market in PHAE sutures in competition withEthicon’s catgut sutures; if Ethicon were allowed to market XLG sutures,Cyanamid if ultimately successful in proving infringementf. Would have lost its chance of continuing to increase it share in the totalmarket for absorbable sutures. There were no grounds for interfering withthe judge’s assessment of the balance of convenience or with thediscretion that he had exercised in granting the injection (see p 511 g top 512 j, post)NotesFor the principles governing the grant of interlocutory injunctions see 21halsbury’s laws )3 rdEdn) 364-366 paras 763-766 and for cases on the subject see 28 (2)Digest (Reissue) 968-9806j-161g. For interlocutory injunction to restrain infringement of patent, see 29Halsbury’s lawa )rdEdn) 105 para 216 and for cases on the ground for granting or refudininterlocutory injunction, see 26 Degest (Repl) 979-987, 3229-3317.Cases referred to in opinionsDonmar Production ltd v Bart (1964) (1967) 2 All ER 338, (1967) I WLR740, Digest (Cont Vol C) 174, J3ia298

506 All England Law Reports (1975) 1 All ERHarman pictures NV v Osborne (1967 2 All ER 324 (1967) I WLR 723, Digest(Cont Vol C) 174, 731 bHubbard b Vesper (1972) I All ER 1023, (1972) 2 QB S4 (1972).AppealThis was an appeal by American Cyanamid co (Cyanamid ) against an order ofthe court of Appeal (Russell, Stephenson LJJ and Foster J) dated 5 the February1974 Cyanamid were granted and interlocutory injection against the respondents299

Ethicon LTD (Ethicon) restraining them from infringing Cyanamid’s letters patent1,043,518 The facts are set our in the opinion of Lord Dip lockAdrew J. Batespm QC and David Young for CyanamidSteph Gratwick QC and GD paterson fro EthiconTheir Lordships took time for consideration5 th February. The following opinions were deliveredLORD DIPLOCK. My lords this interlocutory appeal concerns a patent forpolymer known as a polyhydroxyacetic ester (PHAE). These are sutures a of akind that disintegrate and are absorbed by the human body once they haveserved their purpose. The appellants (Cyanamid) an American company are theregistered proprietors of the patent. Its priority date in the United Kingdom is 2 ndOctober 1964. At that date the absorbable sutures in use were of natural origin.There were made from animal tissues popularly known as catgut Therespondents (Ethicon) a subsidiary of another American company were thedominant suppliers of catgut sutures in the United Kingdom market.Cyanamid introduced their patented product in 1970. The chemical substance ofwhich it si made is a homopolymer, i.e. all the units in the chain except the firstand the last (the end stabilizers) consist of glycoside radices. Glycolide is theradical of glycolic acid, which is another name for hydroxyacetic. By 1973 thisproduct had succeed in capturing some 15 per cent of the United Kingdommarket for absorbable surgical sutures. Faced with this competition to catgut,Ethicon who supplied 80 per cent of the market were proposing to introduce theirown artificial suture (XLG). The chemical substance of which it si made is not ahomopolymer hut a copolymer, i.e. although 90 per cent by weight of the unitsin the chain consist of glycoside radicals, the remaining ten per cent are lactideradicals which are similar in chemical properties to glycoside radicals but notidentical in chemical composition.Cyanamid contend that XLG infringes their patent, of which the principal claim isA sterile article for the surgical repair or replacement of living tissue, the articlebeing readily absorbable by living tissue and being formed from apolyhydroxyacetic ester. As is disclosed in the body of the patent, neither thesubstance PHAE nor the method of making it into filaments was new at thepriority date. Processes for manufacturing filaments from PHAE had been thesubject of two earlier United StatesHL American Cyanamid v Ethicon (Lord Diplock 507300

a. patents in 1953 (Lowe) and 1954 (Higgins). The invention claimed byCyanamid thus consisted of the discovery of a new use for a knownsubstance. On 5 th March 1973 Cyanamid started a quia timet actionagainst Ethicon for an injunction to restrain the threatened infringementof their patent by supplying sutures made of XLG to surgeons in theUnited Kingdom. On the same day they gave notice of motion for aninterlocutory injunction. Voluminous affidavits and exhibits wereb. filed on behalf of each party. The hearing of the motion before Graham Jlasted three days. On 30 th July 1973 he granted an interlocutory injunctionon the usual undertaking in damaged by Cyanamid Ethicon appealed tothe Court of Appeal. The hearing there took eight day. On 5 th February1974 the Court of Appeal gave judgment. They allowed the appeal anddischarged the judge’s order Leave to appeal from that your LordshipHouse granted decision. It was estimated that the hearing in this House ofthe appeal at which leave to accuse more affidavit evidence was to besought would last 12 days. The question whether the use of XLG as anabsorbable surgical suture is an infringement of Cyanamid’s patentdepends on the meaning t be given to the three words apolyhydroxyacetic not only in narrower meaning of a homopolymer ofwhich the units in the chain. Apart from the end stabilizer, consisted solelyof glycolic radicals but also in the broader meaning of copolymer of whichup to 15 per cent of the units in the chain would be lactate radicals; andthat what was said in the body of the patent made it clear that in thewords were used in this wider meaningc. Ethicon’s first contention is that the words a polyhydroxyaceti ester in theprincipal claim bear the narrower meaning only viz that they are restrictedto a homopolymer of which all the units in the chain except the endstabilizers consist of glycoside radicals. In the alternative, as commonlyhappens where the contest is is between a narrower and a widermeaning in a patent specification they attack the validity of the patent, if itbears the wider meaning on the grounds of inutility insufficiency unfairbasis and false suggestion. These objection are really the obverse of theirargument in it of the narrower construction. They are all different ways ofsaying hat if the claim is construed widely it includes copolymers whichwill not have as servile sutures the characteristics described in the body ofthe patent. Ethicon also attack the validity of the patent on the ground ofobviousnessd. Both Graham J and the Court of Appeal feat constrained by authority todeal with Cyanamid claim to an interlocutory injunction by considering firstwhether on the whole of the affidavit evidence before them prime faciecase of infringement had been made out. As Russell LJ put it in theconcluding paragraph of his reasons for judgment with which the othermember of the court agreede. I there be of prima facie case on the point essential to entitle the plaintiffto complain of the defendant’s proposed activities that is the end of theclaim to interlocutory relief prima facie case any in same being used by301

Russell LJ is apparent from an earlier passage in his judgment. After adetailed analysis of the more conflicting expert testimony he saidf. I am not satisfied on the present evidence that on the proper constructionof this specification addressed as it is to persons skilled in the relevant artor science, the claim extends to sterile surgical sutures produced not onlyfrom a homopolymer of glycoside but also from a cop polymer of glycosidebut 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 infringementis established508 All England Law Reports (1975) 1 All ERIn effect what the Court of Appeal was doing was trying the issue of infringementon the confliction affidavit evidence as it stood: If we had to give judgment in theaction now without any further evidence we should hold that that Cyanamid hadnot satisfied the onus of proving that their patent would be infringed by Ethicon’sselling sutures made of XLG The court of Appeal accordingly did not find itnecessary to go into the questions raised by Ethicon as to the validity of thepatent or to consider where the balance of convenience lay.Graham J had adopted the same approach as the Court of Appeal; but on thesame evidence he had come to the contrary conclusion on the issue ofinfringement He considered that on the evidence as it stood Cyanamid hadmade out a strong prima facie case that their patent would be infringed byEthicon’s selling sutures made of XLG He then went on to deal briefly with theattack on the validity of the patent and came to the conclusion that on theevidence before him none of the grounds of invalidity advanced by Ethicon waslikely to succeed . He therefore felt entitled to consider the balance ofconvenience. In his opinion. It lay in favor of maintaining the status quo until thetrial of the action. So he granted Cyanamid an interlocutory injunction restrainingEthicon from infringing the patent until the trial or further order.The grant of an interlocutory injunction is a remedy that is both temporary anddiscretionary. It would be most exceptional for your Lordship to give leave toappeal to this House in a case which turned on where the balance ofconvenience lay. In the instant appeal. However, the question of the balance ofconvenience although it had been considered by Graham J and decided inCyanamid’s favour, was never reaches by the Court of Appeal. They consideredthat there was a rule of practice so will established s to constitute a rule of lawthat precluded them from granting any interim injunction unless on the evidenceadduced by both the patties on the hearing of the application the applicant hadsatisfied the court that on the balance of probabilities the acts of the other partysough to be enjoined would if committed, violate the applicant had to prove302

efore any question of balance of convenience arose was prima facie only inthe sense the conclusion of law reached by the court on that evidence mightneed to be modified at some later date in the light of further evidence eitherdetracting from the probative value of the evidence on which the court had actedor proving additional facts. It was in order to enable the existence of any suchrule of law to be considered by your Lordships House that leave to appeal wasgrantedThe instant appeal arises in a patent case. Historically there was undoubtedly atime when in an action for infringement of a patent that was not already wellestablished whatever that may have meant any interlocutory injunction to restraininfringement would not be granted if counsel for the defendant stead that it wasintended to attack the validity of the patent.Relics of this reluctance to enforce monopoly that was challenged, even thoughthe alleged grounds of invalidity were weak are to be found in the judgment ofScranton LF as late as 1924 in Smith v Gregg ltd but the elaborate for theexamination of patent specifications by expert examiners before a patent isgranted, the opportunity for opposition at the stage and the provisions fro appealto 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 senseof that term, for supposing the paten to be valid and have rendered obsolete theformer rule of practice as respects interlocutory injunctions in infringementactions. In may view the grant of interlocutory injunctions in actions forinfringement of patents is governed.HL American Cyanamid v Ethicon (Lord Diplock 509a. by the same principle as in other action. I turn to consider what thoseprincipal are My Lords. When an application for an interlocutory injunctionto restrain a defendant from doing acts alleged to be in violation of theplaintiff’s legal right is made on contested facts the decision whether or notto grant an interlocutory injunction has to be taken at a time when exhypotheses the existence of the right the existence of the right or theviolation of it or both is uncertain and will remain uncertain until finaljudgmentb. is give in the action. It was to mitigate the risk of injustice to the plaintiffduring the period before that uncertainty could be resolved that thepractice arose of granting him relief by way of interlocutory injunction butsince the middle of the 19 th century this has been made subject to hisundertaking to pay damaged to the defendant for any loss sustained byreason of the injunction if it should be held at the trial that the plaintiff hadnot been entitled to restrain the defendant from doing what he wasthreatening to do. The object of the interlocutory injunction is to protect theplaintiff303

c. against injury by violation of his right for which he could not be adequatelycompensated in damages recoverable in the action if the uncertainty wereresolved in his favour at the trial but the plaintiff need of the defendant tobe protected against injury resulting from his having been prevented fromexercising his own legal rights fore which he could not be adequatelycompensated under the plaintiff undertaking in damaged if the uncertaintywere resolved in the defendant’ favour at the trial The court must weighone need against another and determine where the balance ofconvenience lies. In those cases where the legal rights of the partiesdepend on facts that are in dispute between them the evidence availableto the court at the hearing of thed. application for an interlocutory injunction is incomplete. It is given onaffidavit and has not been tested by oral cross-examination. The purposesought to be achieved by giving to the court deviation to grant suchinjunction would be stultified if the discretion wee clogged by a technicalrule forbidding its exercise if on that incomplete infested evidence thecourt evaluated the chances of the plaintiff ultimate success in the actionat 50 per cent or less but permitting its exercise if the court evaluated hischances at more than 50 per cente. The notion that it is incumbent on he court to undertake what is in effect apreliminary trial of the action on evidential material different from that onwhich the actual trial will be conducted is I thin of comparatively recentorigin though it can be supported by references in earlier cases to theneed to show a probability that the plaintiff is entitled to relief (Preston vluck per cotton LJ) or a strong prima facia case that the right which heseeks to protect in fact exists (smith v Grigg ltd per Atkin LJ). These are tobe contrasted with expressions in to her cases indicating a mush seekonerous criterion such a the need to show that a probability rp a strongprima facie case applied only to the establishment by the plaintiff of hisright and that the lesser burden of showing an arguable case to be triadapplied to the alleged violation of he right by the defendant (don marproductions ltd v bart4 per ungoed Thomas J Harman pictures NV vOsborne per Goff. The suggested distinction between what the plaintiffmust establish as respects his right and what heMust show as respects its violation did not long survive. It was rejected it by thecourt of Appeal in Hubbard v Vosper – a case in which the plaintiff entitlement tocopy right was undisputed be an injunction was refused despite the apparentweakness of the suggested defense Te court however expressly deprecated anyattempt to fetter the discretion of the court by laying down any rules which wouldhave the effect of limiting the flexibility of the remedy as means of achieving the304

object that I have indicated above Nevertheless this authority was treated byGraham J and the Court of Appeal in the instant appeal as leaving intact thesupposed rule that the court is not entitled to take any account of the balance ofconvenience unless it bas first been satisfied that if the case went to trial on noother evidence than is before the court at the hearing of the application theplaintiff would be entitled to judgment for a permanent injunction in the sameterms as the interlocutory injunction sought.Your Lordships should in my view take this opportunity of declaring that these isno such rule. The use of such expressions as a probability a prima facie case ora strong prima facia case in the context of exercise of a discretionary power togrant an interlocutory injunction leads to confusion as to the object sough to beachieved by his form of temporary relief The court no doubt must be satisfiedthat the claim is not frivolous or vexation in other would that there is a seriousquestion to be tried.It is no part of the court faction at this stage of the litigation to try to resolveconflicts of evidence on affidavit as to facts on which the claims of either partymay ultimately depend nor to decide difficult question of law which call fordetailed argument and matter consideration. These are matters to be dealt withat the trial. One of the reason for the introduction of the practice of requiring anundertaking as to damages on the grant of a an interlocutory injunction was thatit aided the court in doing that which was its great object, viz abstaining fromexpressing any opinion upon the merits of the case until the hearing of theapplication for an interlocutory injunction fails to disclose that the plaintiff has anyreal prospect of succeeding in his claim for a permanent injunction at the trial thecourt should go on to consider whether the balance of convenience lies in favourof granting or refusing the interlocutory relief that is sought.As to that the governing principle is that the court should first consider whether ifthe plaintiff were to success at the trial in establishing his right to a permanentinjunction he would be adequately compensated by an award of damages for theloss he would have sustained as a result of the defendant continuing to do whatwas sought to be enjoined between the time of the application and the time of thetrial If damages in the measure recoverable at common law would be adequateremedy and the defendant would be in a financial position to pay them nointerlocutory injunction should normally be granted however strong he plaintiffclaim appeared to be at that stage If in the other hand damages would notprovide an adequate remedy for the plaintiff on the event of his succeeding atthe trial the court should then consider whether on the contrary hypothesis thatthe defendant were to succeed at the trial in establings his right to do that whichwas sought to be enjoined he would be adequately compensated under theplaintiff undertaking as to damages for the loss he would have sustained bybeing prevented from doing so between the time of the application and the timeof the trial If damaged in the measure recoverable under such an undertakingwould be an adequate remedy and the plaintiff would be in a financial position to305

pay them there would be no reason this ground to refuse an interlocutoryinjunctionHLAmerican Cyanamid v Ethicon (Lord Diplock)It is where there is doubt as to the adequacy of the respective remedies indamages available to either party or to both that the question of balance ofconvenience arises it would be unwise to attempt even to list all the variousmatters which may need to be taken into consideration in deciding where thebalance lies let alone to suggest the relative weight to be attached to them Thesewill vary from case to case Where other factors appear to be evenly balance it isa counsel of prudence to take such measures as are calculated to preserve tostarts quo. If the defendant is enjoined temporarily from doing something that hehas not done before the only effect of the interlocutory injunction in the event ofhis succeeding at the trial is to postpone the date at which he is able to embarkon a course of action which he has not previously found it necessary toundertake; whereas to interrupt him in the conduct of an established enterprisewould cause of action which he has not previously found it necessary toundertake; whereas to interrupt him in the conduct of an established enterprisewould cause much grater inconvenience to him since he would have to startagain 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 interlocutoryinjunction will cause to whichever party is unsuccessful in the application somedisadvantages which his ultimate success at the trial may show he ought to havebeen spared and the disadvantages may be such that the recovery of damagesto which he would to which he would then be entitled either in the action or underthe plaintiff undertaking would not be sufficient to compensate him fully fro all ofthem. The extent to which the disadvantages to each party would be incapable ofbeing compensated in damaged in the event of his succeeding at the trial isalways a significant factor in assessing where the balance of convenience liesand if the extent of the uncompressible disadvantage to each party would notdefer widely it may not be improper to take into account in tipping the balance therelative strength of each party case as revealed by the affidavit evidenceadduced on the hearing of the application; This however should be done onlywhere it is apparent on the facts disclosed by evidence as to which there is nocredible dispute that the strength of one party case is disproportionate to that ofthe other party. The court is not justified in embarking on anything resembling atrial of the action on confliction affidavits in order to evaluate the strength of eitherparty case.I would reiterate that in addition to those to which I have referred, there may bemany other special factors to be taken consideration in the particularcircumstances of individual cases. The instant appeal affords one example to306

this. Returning therefore to the instant appeal it cannot be doubted that theaffidavit evidence shows that thee ate serious questions to be tried Grham J andthe Court of Appeal have already tried the question of infringement on suchaffidavit evidence as was available and have come to contrary conclusionsGrham J has already also tried the question of invalidity on these affidavits andhas come to the conclusion that the defendant grounds of objection to the patentare unlikely to succeed so it was clearly incumbent on him and on the court ofAppeal to consider the balance of convenienceGraham j did so and came to the conclusion that balance of convenience lay infavour of his exercising his discretion by granting an interlocutory injection Aspaten judge he has unrivalled experience of pharmaceutical patents and the wayin which the pharmaceutical industry is carried on Lacking in this experience anappellate court should be hesitant to overrule his exercise of this discretionunless they are satisfied that the has gone wrong in law.The factors which he took into consideration and in my view properly were thatEthico suture XLG were not yet on the market so they had no business whichwould be brought to a stop by the injunction no factories would be closed and noworkpeople would be thrown out of work They held a dominant position in in theUnited Kingdom market for absorbable surgical sutures and adopted anaggressive sales policy Cyanamid on the other hand were in the course ofestablishing growing market in PHAE surgical sutures which competed with thenatural catgut sutures512 All England Law Reports (1975) 1 All ERmarketed by Ethicon If Ethicon were entitled also to establish themselves in themarket for PHAE absorbable surgical suture until the action is tried which maynot be for two or three years yet and possibly thereafter until the case is finallydisposed of on appeal Cyanamid even though ultimately successful in provinginfringement would have lost its chance of continuing to increase its share in thetotal market in absorbable surgical sutures which the continuation of anuninterrupted monopoly of PHAE sutures would have gained for it by the time ofthe of the expiry of the patent in 1980. it is notorious that new pharmaceuticalproducts used exclusively by doctors or available only on prescription take along time to become established in the market that much of the benefit of themonopoly granted by the patent derives from he fact that the patented productios given the opportunity of becoming established and this benefit continues tobe reaped after the patent has expired in addition there was a special factor towhich Graham J. attached importance established and this benefit continues tobe reaped after the patent has expired.In addition there was a special factor to which Graham J. attaché importanceThis was that once doctors ad patients had got used to Ethicon product XLG inthe period prior to the trial it might well be commercially impracticable forCyanamid to deprive the public of it by insisting on a permanent injunction at the307

trial owing to the damaging effect which this would have on its goodwill in thisspecialized 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 thebalance of convenience or for interfering with the discretion that he exercised bygranting the injunction. In view of the fact that there are serious question to betried on which the available evidence is incomplete conflicting and untested toexpress an opinion now as to the prospects of success of either party would onlybe embarrassing to the judge who well have eventually to try the case. Thelikelihood of such embarrassment provides an additional reason for not adoptingthe course that both Graham J and the Court of Appeal thought they were boundto follow, of dealing with the existing evidence in detail and giving reasonedassessments of their view as to the relative strengths of each party’s cases.I would allow the appeal and restore the order of Graham JVISCOUNT DILHORNE. My Lords, I have had the advantage of reading thespeech the speech of my noble and learned friend, Lord Diplock. I agree with itand the this appeal should be allowed and the order of Graham J restoredLORD CROSS OF CHELSEA. My Lords, for the reasons given by my noble andlearned friend Lord Diplock in his speech, which I have had the advantage ofreading in draft, I would allow this appealLORD SALMON. My Lords, for the reasons given by my noble and learnedfriend , Lord Lord Diplock, and for the reasons he gives I would allow the appealand restore the order of Graham J.LORD EDMUND-DAVIES. My Lords, for the reasons given by my noble andlearned friend, Lord Diplock I would also allow this appealAppeal allowedSolicitors: Allen and Overy (for Cyanamid ); Lovell, White and King (for Ethicon)Gordon H Scott Esq BarristerIN THE COURT OF APPEAL OF TANZANIAAT MWANZA(CORAM: NYALALI C.J. OMAR, J./.. AND RANDANI J.A.CIVIL APPEAL NO. 20 OF 1990,BETWEENTHE ASSISTANT IMPORTS CONTROLIER(B.O.T) MWANZA..APPELIANTAND308

MAGNUM AGENCLES COMPANY LIMITED RESPONDENT(Appeal from the Ruling/Decision of theHigh Court of Tanzania at Mwanza)(Mwalusanya, J.)dated the 13 th day of July, 1989in Kiscellaneous Civil Cause No. 16 of 1989JUDGEMENT OF THE COURTRAMADHANI, J.A;This is an appeal against an order of mandamus which was granted by the Highcourt of Tanzania at Mwanza (Mwalusanya, J.) complling the Assistant ImportsController (B.O.T,) the appellant here, to extend the duration of the import licensehe had issued to Magnum Agencies Co. Ltd the respondent.It was alleged that the respondent on the 9/8/1988 was issued with an importlicense for 5,000 arête of beer from Kenya. (We purposely use the word allegedfor reasons which will become evident later on) The expiry date was 9 thJanuary1989 the respondent brought 800 crates of beer and before he could bring theremaining lot, which he had already pied for the license for reasons notnecessary to go into expired. The request for the extension of time was turneddown, The respondent after obtaining leave applied for and was granted an orderof mandamus309

What transpired at the high court is very material for the determination of thisappeal 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 therespondent was absent while the present respondent then the applicant wasrepresented by Mr. Matata learned Counsel On the day of the hearing that is11/7/1989 the appellant was reprinted by one Mr. Bwiro who mere likely than notwas then the Assistant Imports Controller Mr. Matata made a submission towhich Mr. Bwire replied despite his confession that he was not a lawyer He wasnot sworn and in his submission he referred to a number of documents whichdefinitely were not tendered as exhibits nor is it clear that the court had even aglance at them.Before us the respondent continued being represented by Mr. Matata wile theappellant was advocated for by Mr. Marando learned CounselThis 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 thedocuments that were attached therewithwhich we have already alluded toabove be admitted by this court as part and parcel of the of appeal He contendedthat these do not qualify as additional evidence since the contents had alreadybeen present before the High court bence his non-reliance on Rule 34 whichdeals with Power to re-appraise evidence and to take additional evidence Goever after suggestion from the bench he came round to acknowledge that Rule34 is the relevant one But then the question came the affidavit and thedocuments are to be admitted as additional to what pre-existing evidence310

Without going into his locals standing it is glaring us that whatever Mr. Bwire hadsaid cannot be christenedEvidence for that matter Mr. Marando agreed that there was no evidenceadduced even on behalf of the respondent Mr. Marando submitted that theproceedings 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. Hesaid that what had been known as prerogative writs are now provided for by theLaw Reform (Fatal Accidents and Miscellaneous provisions) Ordinance, cap.360 as amended by Act No. 55 of 1968 Section 18 thereof empowers the chiefjustice to make rule of court prescribing the procedure to be followed. He pointedout that there have not yet been made. He then went on to describe theprocedure now in practice and that is the file statements in support of anapplication for an order. Eventually Mr. Matata bowed to the directions of thecourt that affidavit are necessary and he was positive that he had filed one atthe High court. He was given time to dig it out from the recerd. When the courtre-convened Mr. Matata humbly but rightly so concede that there was no affidavitand that the proceedings before the High court were null and void.As properly pointed out by Mr. Marando the application which is the subject ofthis appeal involved matters of both fact and law The question of law waswhether or not the appellant could be compelled to extend the duration of theimport license. This called for legal submission of advocates. But that stagecould only be arrived at after the court court had been satisfied tha an importlicence had as a matter of fact. Been issued to the respondent that it had expired311

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 eitherthrough witnesses or by affidavits. The submissions by Mr. Matata at the hearingof the application were not evidence and as already pointed out, Mr. Bwire toodid not give anyThus as the learned judge did not have a factual basis for arriving at the decisionhe did the proceedings were and were hereby declared null and void and arequashedMr. Marando prayed for costs he submitted that even without the suggestion ofthe court he already had as his first ground of appeal the failure of the learnedtrial judge to see that the pleadings and been completed and to take evidence onearth on the part of the respondent. We concede that and we allow the appealwith costs.Before we close there is another procedural matter, which has to be brought tothe attention of the courts ad advocates. We have seen that the application forleave to apply for the order was instituted thus.In the matter of an Ex-parte Application for leaveTo apply for an order of MandamusMAGNUM AGENCLES COMPANY LIMITEDVersusTHE ASSISTANT IMPORTS CONTROLLER RESPONDENT312

BANK OF TANZANIA MWANZABut the proper instauration should have been as explained in Mohamed Ahmedv. R. (1957) E. A. 523 at 524 and Farmers Bus Service an Others v. TheTransport licensing Appeal board (1959) E.A 779 at 781.DATED at MWANZA this 30th day of November 1990.F.L. NYALALICHIEF JUSTICEA.M.A OMARJUSTICE OF APPEALA.S.L. RAMADHANIJUSTICE OF APPEALI certify that this is a true copy of the original(L.B. KALEGEYA)SENIOR DEPURY REGISTRARC.A. FARMERS BUS v TRANSOPRT LICENSING (FORBES, Ag. P.) 779AFARMERS BUS SERVICE AND OTHERS v. THE TRANSPORTLECENSING APPEAL TRIBUNALB. COURT OF APPEAL AT NAIROBI( Forbers, Ag.P, Wendham J.A andTempleton J. August 5 and 21 1959CIVIL 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 incorrectlyintituled –how such proceedings should be intituled313

The Supreme Court of Kenya dismissed an application by the appellants for anorder of certiorari directed to the Transport Licensing Appeal Tribunal, but gavecondition leave to appeal. The appeal having been lodgedn the appellants thenmoved the appellate court to vary the order of the Supreme Court so that leave toappeal might become unconditional. At the hearing of this application which wasrefused the court commented on the form of the proceedings and the headings ofthe application to the Supreme Court and of the appeal andHeld: prerogative ordes are issued in the name of the Crown and applications forsuch orders must be correctly instituted.Mohamed Ahmed v.R.(1957) E.A) followedOrder that the notice of appeal and other documents be amended as shown inthe ruling.Case referred toMohamed 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 partiesAugust 21 FORBES, Ag, P., read the following ruling of the court this was anapplication by the appellants (hereinafter referred to as the applicants) in anappeal which is pending before this court. The appeal is against an order of theSupreme Court dismissing with costs an application for an order of certioraridirected to the Transport Licensing Appeal Tribunal relating to certain roadservice licenses which had been granted to the applicants. The application to thiscourt was for variation of the order of the Supreme Court granting leave to appealso that leave might be unconditional the order of the transport licensing AppealTribunal as confirmed by the Supreme court stayed and the licences in questionremain in force as originally granted pending the hearing of the appeal Werefused the application with costs but undertook to give a ruling on a matter offormThe applicants number nineteen in all and for the sake of brevity they will bereferred to in the forms below as (the applicants) where in the actual form thenames were or should be set out in full. The record of the appeal, which wasbefore us (Mr. Kean flr the applicants intimated that a supplementary recordwould be filed in due course) does not contain the original application to a judgeof the Supreme Court for leave to apply for an order of certiorari in pursuance ofr. 1 of O. LIII of the Civil and in the matter of: An application for an order ofCertiorari directed to The Transport Licensing Appeal Tribunal1 to 19 the application)314

Similarly the present record does not contain a copy of the notice of motion forthe order of certiorari but from the formal order embodying the decision of theSupreme court on the motion it would appear that the heading of the motion ofmotion was the same as that of the application for leave to apply which is set outabove. From the judgment of the Supreme Court it would appear that the appealsbefore the Transports licesnsing Appeal Tribunal to which the application relatedare Nos. 11 to 6 inclusive, 30,32-35 inclusive 37,41-43 inclusive and 46-48inclusive, all of 1958The appeal to this court is headed1(to) the application19 andAppellantsThe Transport licensing Appeal Tribunal RespondentsIn our opinion the forms of heading used are incorrect. This court had occasion tocomment on the forms to be used in applications for probative orders inMohamed Ahmed v. r. (1), 1957 E.A 523 (C.A) In that case the then learnedpresedint of the court after setting out the forms of heading employed in that caseand accepting as correct the form of heading for the ex parte application to ajudge for leave continued (at p. 524).This recital reveals a series of muddles and errors, which is not unique inUnganda and is attributable to laxity in practitioner’s offices and in someregistries of the High Court. The appellants advocate appears to have failedentirely to realise that prerogative orders like the old prerogative writs areissued in the name of the Crown at the instance to the applicant and are directedto the person or persons who are to comply therewith Applications for suchorders must be instituted and served accordingly The Crown cannot be otherapplicant and respondent in the same matterWhen proceedings in the high Court by originating summons or originationmotion are interring parts it is not sufficient to institute them as In the matter ofetc. This must be followed by the names of the applicants and respondents ifthis 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 inforce 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 thatthe ex parte application for leave to apply for an order should (on the assumptionthat the applicants could properly join in one application have been intituled:315

C.A. FARMERS BUS v. TRANSOPRT LICENSING (FORBER, Ag. P) 781In the matter of an application by (the applicants ) for leave to apply for an orderof 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 LicinsinAppeal Tribunal.We may say we entirely agree with the view expressed by the learned judges ofthe Supreme Court that the application concerned nineteen separate and distinctappeals which should not have been joined in one application. As in MohamedAhmed’s (1) case if the proper form had been used, the error would have beenobvious.Leave having been granted, the notice of motion should have been instituted“RvThe Transport Licinsing Appeal TribunalEx parte(the applicants)So far as the appeal to this court is concerned, the persons really interested inresisting the appeal are the Overseas Touring Co. (E.A) Ltd and the Kenya BusServices Ltd., who were the objectors before the Transport Licensing AppealTribunal. In the circumstances we think they should be added o the heading asinterested parties. The appeal should therefore be instituted“R.Appellantv.The Transport Licensing Appeal Tribunal ..RespondentsandThe Overseas Touring Co. (E.A. Ltd. .. interested partiesThe Kenya Bus Services Ltd.Ex parteThe applicantsThe notice of appeal and other documents in the appeal should be amendedaccordingly .Ordre that the notice of appeal and other documentsBe amended as shown in the rulingAdvoctes: Sirley & Kean, Nairobi (For the applicants); the Attorney –GeneralKenya (for the respondent) Daly & Figgis, Nairobi (for the interested parties)316

78 TANZANIA LAW REPORTS (1987) T.L.RA appellants but somehow he was not so tried. Had he been tried the too myhave had his own share to make good the loss. On the whole it is not possible toapportion the amount of compensation nor do I consider it fair and just, on theevidence available to rest it wholly and squarely on the shoulders of these twoappellants.B. For these reasons I will set aside the order of compensation. Subject to thelaw governing limitation of actions I leave it to the complainant should he feeldisposed to do so to follow up the matter in a Civil Court of competentjurisdiction.C. All in all, save for the ordr of compensation which has been set aside, thisappeal fails and it is hereby dismissedAppealdismissedD. HANS WOLFGANG GOLCHER v GENERAL MANAGER OFMOROGORO CANVAS MILL LIMITED (HIGH COURT OF TANZANI(Maina.J.)20 August, 1987 – DAR ES SALAAMCivil practice and procedure – Temporary injunction – Application for - Notice ofsuch application to the opposite party – Whether mandatory Civil practice andprocedure – Temporary injunction – Application for- principles for grantingapplication317

Civil practice and procedure- Temporary injunction-Application to issue pendinghearing of intended application for orders of certiorari and mandamus- Noapplication for leave to apply for orders sought and obtained.- Whethertemporary injunction may issueAdministrative law – prerogative orders – Application for temporary injunctionpending hearing of intended application for orders of certiorari and mandamus –No application for leave to apply for orders sought and obtained – Whethertemporary injunction may issue.H.W. GOLCHER V. MANAGER (MCH) Maina, J)79This was an application to set aside an ex parte temporary injunction issued bythe HIGH Court against the applicant who was the General manager of MorogoroCanvass Mill Ltd and the Derector of Immigration Services. The full set of facts isin the rulingHeld: (i).The rule that the court shall in all cases except where it appears that theobjet of grating the unjunction would be defeated by the delay before grating ainjunction direct notice of the application to be given to the opposite party, ismandatory(ii). if the opposite party can be served without delay as was the position in hiscase an exparti injunction should be issued;(iii) in all application for prerogative ordrs such as certiorari and mandamus leavemust be sought and obtained before the application for any prerogative order isheard;iv. Since no leave to apply for the prerogative orders of certiorari and mandamushad been obtained the temporary injunction cannot standv. The ex-parte temporary injunction was issued against know principlegoverning temporary injunctions. It cannot be said that the respondent hassuffered irreparable injury which cannot be adequately compensated by anaward of damages for breach of contractApplication succeeds:Cases referred to:1. Noormohamed janmohamed v. Kassamalli Virji Madhani (1953) 20 EACA82. Davan v Bhadreasa and Another (1973) EA 3583. Alfred Lakare v. Tow Director Arusha (1980) TLR 3264. 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 injunctiondated 28 April, 1987 issued by this court against the applicant who is the GeneralManager of Mororgoro Canvas Mill Ltd, and the Director of Immigration Service.The respondent was an employee working for Morogoro Canva Mill Ltd, asFinancial Controller. The annexure to this application show that the contract ofservice was between the respondent and Hebox Holland Engineering B.V Therespondent was assigned by he box to work for Morogoro Canvas Mill Ltd On 1April 1987 He box wrote a letter to the respondent informing80 TANZANIA LAW REPORTS _________________ (1987)T.L.RHim that his contract of employment was to terminate on 30 April 1987 and wouldnot be renewed. The respondent also received a letter dated 10 April 1987 formthe applicant dismissing the respondent form his duties with immediate effectThere was another letter (annexure E to the affidavit) which instructed therespondent to vacate the house he was occupying not later than 30 April 1987The above events led to the filing og the application by the respondent for ordersof cetiaorari to quash the decision of the General Manager, and mandamus to319

compel the applicant General Manager to hear the respondent in accordancewith rules of natural justice and for an injunction to restrain applicant fromharassing him.On 20 April 1987 the matter came before the Hon. Jaji kiongozi who issued anex-parte temporary injunction restraining the Director of Migration services fromdeporting the respondent pending the hearing of the case and also restringingthe applicant from evicting the respondent from his quarter during the tendencyof the case. It was Mr. Uzanda’s submission that the temporary injunction wasincompetent because it was in breach of order 37 Rule 3 of the Civil ProcedureCode which provides as follow;The court shall in all cases except where it appears that the object of grantingthe injunction would be defeated by the delay before granting an injunction directnotice 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 withoutdelay an ex-parte injunction should not be issued in theis connection, Mr.Uzanda referred the court to two decisions of the court of Appeal InNoormohamed Janmohamed v. Kassamali Birji Madhani (1953) 20 EACA 8 atpage 11 the court saidThe requirement to give notice is clearly mandatory and it cannot be disputedthat the onus of satisfying the court that there s a good cause for dispensing withit will lie upon the applicantThe 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 thesame premises, and therefore there would have been no difficulty in serving theopposite party with the chamber summons. The ex-parte interim injunction wasset said. In the present case thee is no dispute that the respondent is living nearthe applicant house and had this been raised at the hearing of the application fortemporary injunction the court would have required notice to be served on theopposite party.Furthermore there was no application made no reasons were given and also noorder was made dispensing with the requirement of giving notice to the oppositeparty Mr. Massate concede that in the affidavit filed in support of the applicationfor 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 mandatoryHowever he said that the matter was urgent and the service to the opposite partywould have caused delay With respect I do not agree. The respondent knew thatthe General Manager was living in the same neighborhood of the respondenthouse I do not see what delay would have been caused by sending notice to theapplicant Mr. Massati also said that the application to dispense with notice can320

e made informally. But with respect there was not even an informal applicationto dispense with notice The letter to the Registrar of the High Court that thematter was urgent was not in my view an application to dispense with notice tothe opposite party That letter merely asked for an early hearing Mr. Massatiosubmitted further that he could not ask for notice to be served to the oppositeparty because the application for leave to apply for orders of certiorari andmandamus had not been heard in all application for prerogative orders such ascertiorari and mandamus leave must be sought and obtained before theapplication for any prerogative3 order is heard in my view the applicationtemporary injunction could only be made where leave had bee granted in thiscase when the application for temporary injunction was heard no leave to applyfor certiorari and mandamus had been grated by the court. It seems to me that ifthe court had been told on 28 April 1987 that in fact leave had not been grantedto apply for certiorari and mandamus the application for temporary injunctionwould not have been entertained The court proceeded with the hearing of thatapplication on the assumption that leave to apply for orders of certiorari andmandamus had been granted Sicnce such leave had not been obtained thetemporaty injunction cannot stand and for thar reason alone the temporaryinjunction would be set asideI would go further an say that the temporary injunction321

H.W. GOLCHER V. MANAGER (MCM) (Maina J.)83So there appears to be no contract of service between the respondent andMorogoro Canvas Mill Ltd.The applicant’s letter dismissing the respondent from his employment is of noeffect whatsoever. The position appears to be that Hebox informed therespondent that the responds contract of service would expire on 30 April 1987The application to quash decision of the General Manager Morogoro Canvas MillLtd is to me meaningless because the General manager had no power to dismissthe respondent who has been notified earlier by his employer that the contract ofservice would expire on a specified dateAs for mandamus, I agree that the applicant General Manager has no pubic dutyto perform/ In Halsbur Laws of England volume eleven. Third Edition paragraph172 at page 54 the learned author states as follows.Mandamus will lie towards any person or body in respect of anything whichappertains 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 therespondent’s employment I agree with Mr. Uzanda that neither certiorari normandamus can lie. Furthermore mandamus cannot lie where there is someother 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 hasno possibility of successFinally I do not think that respondent can say that he has suffered irreparableinjury which cannot be adequately compensated by an award of damages Hecan file a suit against his employer for damages for breach of contract. That is alegal remedy available to himFor these reasons the application succeeds. The temporary injunction dated 28 thApril 1987 is set aside The respondent shall bear the applicant’s costs.322

82 TANZANIA LAW REPORTS (1987)T.L.RAgainst the Director of Immigration Services was incompetent for anotherreason. As Mr. Uzanda submitted the Director for Immigration Services was not aparty to these proceedings He was a stranger to the case. The ex-parte injectionwas made against a stranger Mr. Massati conceded but said that the court haddiscretion under section 95 of the Civil procedure code to make the order. I donot agree. Section 95 gives inherent powers to the court to make such orders asmay be necessary for the ends of justice or to prevent abuse of the process ofthe court. It does not empower the court to make orders against stranger to thecase. There are provisions in the Civil procedure code for joined of parties andMr. |Masati could have applied for the Director of Immigration Services to bejoined as a parety to his application and then ask for orders against the DirectorThis was not done and I do not see how the injunction against the Director ofImmigration Services who was not a party to the case can be supported.The temporary injunction against the Director of Immigration Services can be setaside for another reason. Mandamus can only lie against the Director it it wereshown 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 Attorneysubmitted on behalf of he Director of Immigration Service the respondentsemployment ceased the residence permit he hold is invalid. The respondent hasnot asked for another permit. If the respondent applies for another permit inanother class that would be considerd by the authorities to enable therespondent finalise his affairs in this country.Another point raised by Mr. Uzanda was that the ex-parte temporary injunctionwas issued against know principle governing temporary injunction. Learnedcounsel submitted that an application for an interim injunction must establishprime facie case with a probability of success and that the facts must show that ifa temporary injunction is not granted the applicant would suffer irreparable injurywhich cannot be adequately compensated by an awards of damages. He citedthe case of Giella v. Cassman Brown and C. Ltd (1973)Ea 358 at page 360 Itwas Mr. Uaznd’s submission tha in this case neither certiorari nor mandamus canlie. I do not wish to restate the facts of this case. All I can say is that it appears tome from the affidavits and the annexure that the respondent was employed byHebox Holland Engineering B.V and was only assigned by Hebox to work forMorogoro Canvas Mill Limited323

IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMMISCELLANEOUS CIVIL CAUSE NO. 37 OF 1980In the matter of an application by AMRI JUMA & 15 others for ordersCertiorari and MandamusofAndIn the matter of the decision of the Labour Concilliston Board. Temeke Districtunder the Security of Employment Act Cap 574BETWEENAMRI JUMA & 15 OTHERS APPLICANTSAND1. TANZANIA HARBOURS AUTHORITYS2. LABOUR CONCILIATION BOARD TEMEKE DISTRICT )RESPONDENTRULINGMAPIGANO j. – This is an application by AMRI JUMA and fifteen others for anorder of certiorari to bring up and quash the decision of the conciliation Board at324

Temeke, Dar es salaam, delivered in 15/5/80 affirming the termination of theservices of the applicants in reference y the applicants against the terminationand for an order of mandamus direction the said Board to hear and determine thereference in accordance with the law and the principle of natural justice.The history which brings this application was narrated in detail by the applicatorsbefore the Board and recorded down copy of the record has been annexed tothis 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 ondifferent shifts by the Tanzania harbors Authority in the Tanzania HarborsAuthority in Dar es salaam They had what can be described as long standinggrievances against their employer. With singleness of purpose in an endeavor tohave their problems solved they had made numerous excursion to high and lowplaces there was an occasion when they called at the state House in the hope ofseeing His Excellency the president hew was not around and they were insteadreceived by the minister of state one Abdullah Natepe. It would appear that at allthose places their complaints were being bucked down the line where they wereeither accorded a velvet gloved reception or treated with crisp offialese It was allfor naught on 5.4.80 their employment was terminated in interests of efficiency ofthe Authority. They were aggrieved by the said termination and they sent out tochallenge it with a view to reinstatementWhat happened later had been recounted at fairly great lengthe in the affidavitsworn by one of them sinasudi Omari He deposed inter alia:5. That being aggrieved by the said termination the applets reported tojumuiya ya wafanyadazi wa Tanzania (JUWATA) cha chama chamapinduzi (c.c.m) Branches of the work place on or around 8 th April, 19806. That both the said Branches advised the applicants to take their terminalbenefits and them pursue their demands at the District level7. That on or around 29 th April, 1980 the applicants filled in the necessaryforms to made a reference to the labour conciliation Board TemekeDistrict325

8. That on 15 th May 1980 the applicants arrived at the labour office inTemeke for the hearing of their reference. While they were waiting outsidethe office of Mr. Njonjo, a labor officer and chairman of the saidconciliation Board, Messrs J.N. Msangi and A.A Diwani therepresentatives of the Tanzaina Harbours Authority and messrs SaidiMwinchande and J,S Kinyogoli the Chairman and the Secretary of theJUWATA Branch at the work place respectively arrived and went straightinto Mr. Njonjo office Mr. Njonjo took them to the room where the saidconciliation eventually held the hearing After a few minutes messes C.Schambo and M.M Hassani the members of the said Board arrived andwent into the said room.9. That the said representatives of the Tanzania Harbours Authority spentsome twenty minutes closeted in the said room discussing with themembers and the chairman of the said Board before three applicantswere called in the rest to the applicants were waiting outside.10. That the applicants wee never informed of what transpired during theirabsence (referred to in paragraph 9 above) and behind their backsbetween members of the Board including the chairman and therepresentatives of the Tanzania Harbours Authority.11. That on 15 th May 1980 the said conciliation Board after hearing decidedthat the termination of employment of the applicants was right andjustified. The said decision is annexed herewith and marked Exhibit B.According to the annexure three reasons were given by the Board in support oftheir decision namely:1. that the termination was in the interests of the harbour’s efficiency andproductivity as wee as the economy of the country2. that the applicants’ procession to the state house was an unlawful anddangerous oat and326

3. that the reference was in any event incompetent and misconceived on theground that the applicants had already received their terminalemolumentsFour ground have been urged for this application The first is that the Board failedto follow the principles of natural justice. The second is that the Board exceededits jurisdiction and failed to act judicially. The third is that the decision of theBoard was unreasonable and manifestly unjust. And the last ground is that thedecision of the Board displays manifest errors of law on its face. Some of thesegrounds are certainly interrelated and intertwined.Mr. Shivji; counsel for the applicants appeared before this court to amplify onthose grounds He opened his address by observing that the Board was a quasijudicialbody and, therefore that its proceedings were subject to judicial review bycertiorari but counsel for the first respondent (the Tanzania Harbours Authority)Mr. Adubakar. Contended rather tepidly to the contrary he sought to impeach thecompetence of the application by arguing that it is premature on the ground thatthe applets have not exhausted their right of further reference to the minister asprovided for by the statute. To that Mr. Shivji was quick to reply that theapplicants are not seeking to challenge the decision on merit but on the basisthat the decision was a millity at law. In this opinion there is no decision at all totake o the ministers.It is beyond question that the discharge by a Board of its functions under theprovision of the security of Employment Act, 1964 as amended by Act No.1 of1975 constitutes an activity of a quasi-judicial character and it follows that theprocess of certiorari applies to its acts if a case is made out. As counsel for theAuthority undoubtedly knows the writ of certiorari has its history in England. It isa writ directed to an inferior court of record commanding it to certify to the Kingor Queen in the High Court of Justice some matter of judicial character. It istherefore used to remove civil causes indictments from any inferior court of327

ecord into the High court that they may be better tried or if there has been abuseor error. Retried. And as Lord Denning said in the Northumberland case (1952 1all E R 122 at 129 the court of King’s Bench has from very early times exercisedcontrol over the orders of any statutory tribunal just as it has done over theorders of justices to keep it within its jurisdiction and to correct their errors of lawon the face of the record. I would therefore hold that the present application iscompetent and justifiable by this court.With regard to the contention that the Board did not observe the principles ofnatural 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 therepresentatives of the Tanzania Harbours Authority and members of the Board inthe absence of the applicants. He also charged that the Board failed to holddue and proper judicial inquiry in that it did not call any evidence or elicit anyinformation touching on the question of efficiency and productivity of the Harbour.With regard to the second ground i.e. excess of jurisdiction the learned counselcharged first that the Board took extraneous and irrelevant matters intoconsideration namely the alleged unlawful procession to the State House andsecondly that in any event it was wrong for the Board to find the applicationsguilty of disciplinary offences which were neither specified or particularizedAs regards the third ground about the unreasonableness of the decision hesubmitted that there was no factual basis for the finding that the continuedemployment of the applicants would adversely affect the efficiency andproductivity of the harbour,And on the question of errors of law he pointed out that the board’s decisionreflected the following errors on its face1. that the visit by the applicant to the state House was an unlawfulprocession or demonstration and328

2. that the application has no right of reference simply because they hadalready taken their terminal benefitsMr. Abubadar’s address was very brief. He supported the decision of the Boardsaying that it was on the whole fair. He implicitly concede that a certainconversation had taken place between the members of the Board ad therepresentatives of the Authority In his opinion that was objectionable but not fatalespecially he said considering that the applicants were subsequently accorded afull hearing by the Board. And as we have already seen it was also his opinionthat this application was premature and incompetent.The tete ar tete between members of the Board and the representatives of theAuthority was doubtlessly improper disconcerting and objectionable Accordingto the applicants that discussion took some twenty minutes the subject of thatconversation was not revealed to the applicants and this court is not in a positionto know for sure what it was that was discussed in the absence of the applicantsThe respondents have not filed any counter affidavit and in case of the Board ithas gone a step further and refused to acknowledge the receipt to the summonsthat the representatives of the Authority most probably make somerepresentations bearing on the termination during the private conversation is notsimply the applications overwrought imagination that no doubt constituted adeparture from the essential principles of natural justice and indeed it isimmaterial in the eye of the law that the discussion did not work to the prejudiceof the applications or that it may not have influenced the decision of the BoardBecause no one who had lost a case will believe he has been fairly treated if theother side has access to the tribunal behind his back it is quite rue that tribunalsliked the conciliation Boards enjoy a certain degree of informality but the courtshave always stressed that should not operate to offend the principles of natural.justice329

I cannot but accept the proposition that the Board made error of law when it heldthat 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 havebeen deposed to in the affidavit and to say the receipt of those emolumentsautomatically and effectively rived the application of their statutory right of makinga erect to the Board was clearly a mistakeFinally I turn to the other points raised by the application I will r-try to deal withtogether the board seems to taken a very serious view of the procession to stateperhaps not surprisingly Mr. Shivji has submitted that procession was matterwhich was completely outs de the purview with respect. I do not quite agree. Ithink the only mistakes into which the Board fell was that it cede further andfirmly said that the procession was lawful there was nothing material which couldhave led a sonalbe tribunal to positively pronounce so As to the conclusion thatthe applicants continued employments be detrimental to the efficiency andproductivity of the harbour all can said that perhaps the board was entitled to atdecision.On balance, I am satisfied that the reference was not openly dealt with by theboard and I will grant this application. Accordingly the decision and theproceedings the board are hereby nullified mandamus is grated and thedifferently constituted is directed to hear and determine reference in accordancewith the provisions of the security Employment Act and principles of naturaljustice330

c.c.s.u v, minste for civil service (H.L.E)information vital to national security Since 1947 staff employed at GCHQ hadbeen permitted to belong to national trade unions and most had done so Therewas a well established practice of consolation between the official and tradeunion sides about imparting alteration in the terms and condition of service of thestaff. On 22 December 1983 the minister for the civil service gave an instructionpurportedly under article 4 of the civil Service order in council 1982 for theimmediate variation of the terms and condition of service of the staff with theeffect that that would no longer be permitted to belong to national trade unionsthere had been no consultation with the trade union or with the staff at GCHQprior to the issuing of that instruction. The applicants a trade union an sixindividuals sought judicial review of the ministers instruction on the ground thatshe had been under a duty to act fairly by consulting those concerned if oreissuing it In an affidavit. The secretary to the cabinet deposed to disruptiveindustrial action in support of nation trade unions that had taken place at GCHQas part of a national campaign by the unions designed to damage governmentagencies and that it had been considered that prior consolation about theminister instruction would have involved a risk of precipitating further disruptionand would moreover have indicated vulnerable areas of GCHO’s operations331

Glidewilll J. grated the applicant a declaration that the instruction was invalid andof no effect. The court of Appeal allowed an appeal by the ministerOn appeal by the applicantsHeld dismissing the appeal (1) that executive action was not immune fromjudicial review merely because it was carried out in pursuance of a power derivedfrom a common law or prerogative rather that a statutory source. And a Minsteracting under a prerogative powe might depending on its subject matter be underthe same duty to act fairly as in the case of action under a statutory power (postpp. 399Reg. V. criminal injuries compensation Board Ex parte ;aom (1967) 2 Q.B. 864D.C. applied. That the applicants would apart from consideration of nationalsecurity have had a legitimate expectation that unions and employees would beconsulted before the minister issued he instruction of 22 December 1983 andaccordingly the decision making process would have been unfair by reason ofher failure to consult them ad would have been kunfair to judicial review (postpp. 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 forthe executive and not the courts to decide whether in any particular case therequirements of national security outweighed those of fairness and that theevidence established that the minister had considered, with reason that priorconsultation about her instruction would have involved a risk of precipitatingdisruption at GCHQ and revealing vulnerable areas of operation and accordinglyshe had shown that her decision had in fact been based on consideration ofnational security that outweighed the applicants legitimate expection of priorconsulstion (pst pp. 402b-c 403b 407 f-gWindust David Framcis caffrey and Dennis Mitchell sought (1) a declaration thatthe certificate issued by the Secretary of state for the Foreign and Commonwealth Office. Dated 25 January 1984 that employment in or under Government332

communications headquarters (GCHQ) was required to be excepted for thepurposed of safeguarding national security pursuant to section 121(4) of theEmployment protection Act 1975 was invalid by reason of the fact that it hadbeen issued in Brach of the city of the Secretary of State to act fairly andaccordingly to consult (2 a declaration that the certificate issued by the duty ofthe Secretary of state for the Foreign and Commonwealth office dated 25January 1984 that employment in or under GCHQ was required to be exceptedfor the purposed of safeguarding national security pursuant section 138(4) of theEmployment protection (consolidation) Act 1978 was invalid bt reason of the factthat it had been issued in breach of the duty of the Secretary of state to act fairlyand accordingly to consult (3) an order of certiorari to remove into the court andquash the instructions purportedly issued by the minister for the civil service andthe altered condition of those employed in or under GCHQ set out in letters dated25 January 1984 7 February 1984 and 21 February 1984 and in General Notice10084 (4) a decoration that the notification to person employed at GCHQ ofchanges in their condition of service contracts of service effected by the letter of25 January 1984 from the Director of GCHQ to all members of staff wasineffective lawful to vary the conditions of service contracts of service effected bythe letter of 25 January 1984 from the Director of GCHQ to all the staff and theGeneral notice 10084 of the same date was infective lawfully to vary theconditions observance contracts of service of the said persons or any of them(5) a declaration that the purported acceptance by divers person employed atGCHQ as either option A or option set out in the option form attached to the letterof 25 January 1984 from the Director of GCHQ to all members of staff wasineffective lawful to very the conditions of service contracts of the said person orany of them (6) a declaration that any decision to dismiss or to transfer anyperson employed at GCHQ who refused to give up his or he membership of oralternatively the right to belong o a national trade union would in so for as thereason for the decision to dismiss and or transfer was the refused be void oralternatively be wrongful and in breach of the conditions of service contracts ofservice on the grounds (a) the to certificates issued by the Secretary of state for333

Foreign and commonwealth Affairs dated 25 January 1984 were invalid byreason of the fact that the Secretary of State had failed to comply with his duty inexercise 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 ofGCHQ or their union representative had taken place before the issue of thecertificated (b) on a true construction of article 4 of the Civil Service order InCouncil 1982 the minister for the civil service (i) was not entitled to issueinstruction to prevent persons who wished to remain at GCHQ from remaining asmembers of or attaining the right to belong to national trade unions becausesuch instruction would affect a fundamental right not falling within the meaning ofcondition of service in article 4 alternatively (ii) no longer had any power to alterthe condition of service/contracts of serviceso as to prevent person who wished to remain at GCHQ from remaining in orattaining the right to become members of national trade unions, the power inquestion having been superseded by section 5 of the Trade Dispute and TradeUnion 1927and not revived by repeal of the Act by the Trade Dispute and TradeUnions Act 1946 © in issuing the purported instruction the minister for the CivilService had erred in law in the following ways(i) she had been under a duty to actfairly and therefore to consult the employees at GCHQ before issuing any suchinstruction no consultation had in fact taken place before the issue of the GeneralNotice on 25 January 1984(ii) she had misdirected herself by proceeding on thebasis that the certificates under the Acts of 1975 and 1978 could be validlyissued without any consultation and would be valid and effective when issued on25 January 1984 whereas that had not been the case; (iii) she had misconstruedthe true nature of the international obligation of Her Majesties Governmentcontained in International Labour Organisation Convention No. 87 (iv) she hadwrongly taken into account the need to bring employment at GCHQ into line withthe employment of those employed in other security and intelligence services didnot have comparable duties and sis not work in similar conditions (v) she hadheld that the issue of instruction informally under article 4 of the order inCouncilor 1982 amounted to a prescription in law with the meaning of article 11334

)2) of the European Convention on Human Rights a misdirection as to the truemeaning of article 11 (2) invalidated the relevant decision as a matter of Englishlaw if as was apparent from the terms of a statement in within made by theForeign and Commonwealth Office to the Select committee on Employment aconsideration of the meaning of article 11 (2) had formed an integral part of thedecision making process alternatively no reasonable minister could have formedthe view that informal instruction amounted to prescription by law within themeaning of article 11 (2) (vi) by failing be have any regard to relevant factorsnamely (a) the existence in the conditions of service contracts of service ofemployees at GCHQ of a right to belong to a national trade union and (b) the factthat she was obliged by the relevant conditions of service/ contracts of serviceand /or by long standing industrial relations practice to consult about relevantchanges in conditions of service (d) no responsible minister for the civil servicecould have come to the conclusion that it was necessary to alter the conditions ofservice/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 promptfears that national security would in the future be jeopardized (ii) the delay ofthree years before any executive action by way of considering the alteration wassuch as to negative any suggestion that national security was beinginadequately safeguarded without resort to the alteration of the condition forservice/contracts of service of GCHQ employees; (iii) the official avowal in may1983 that GCHQ was a part of the nation’s security and intelligence services wasinsufficient reason for the delay in determining to alter the condition ofservice/contracts of service since there had been no change in the operationalactivities at GCHQ that required the alteration on 25 January 1984 when noexception had been considered necessary during the previous three years;moreover, by 1987 at the latest the intelligence services conducted at GCHQhad been given wide publicity (e) (i) in a statement made in writing by theForeign and Commonwealth Office to the Select Committee on Employment thelegal requirements for a change in the conditions of service had been illustrated335

in the following terms: Such regulations or instruction are legal instruments underthe prerogative power and in the case of GCHQ the change in the conditions ofservice have been made by instruction given by the prime minister under thatpower (ii) nothing amounting to a legal instrument under the prerogative powerhad been issued before 25 January 1984 and accordingly the letter of 25 January1984 and the General Notice 100/84 were both invalid (iii) on a true constructionof article 4 of the order in Council of 1982 instructions providing for the conationsof service of civil servants were specific instruction in writing setting out therelevant conditional of service: no such instruction had been given by the primeminister under that power had been issued before 25 January 1984 andaccordingly the letter of 25 January 1984 and the General Notice 100/84 wereboth invalid; (iii) on a true constriction of article 4 of the order in Council of 1982instructions providing for the conditions of sercoce of civil servants were specificinstruction in writing setting our the relevant condition of service no suchinstructions had been given by the minister for the Civil Service and accordinglythe 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 personsemployed at GCHQ to give up membership of a national trade union or todeprive them of their right to join a national trade union since the existingcondition of service/contracts of service of such persons permitted suchmembership any change in those conditions of service contracts of servicecontracts of service could be affected only by a lawful variation thereono suchlawful variation had been achieved by the proposed unilateral variation since theCrown had no power. Statutory. Prerogative or otherwise. To vary condition ofservice contracts of service at will (ii) furthermore no purported acceptance of thenew conditions of service /contracts of service whether of option A or of option Bset out in the option form attached to the letter of 25 January 1984 from theDirector of GCHQ to all members of staff had affected such a lawful variationsince (1) no consideration had been given for the purported agreement to acceptthe new terms and (2) such acceptances as had been given had been givenunder duress namely in relation to option A the unlawful threat by the Crown to336

dismiss persons refusing to accept the changes the change proposed in option Ain breach of their conditions of service/contracts of service and in relation tooption B the unlawful threat by the Crown to dismiss persons refusing to acceptthe changes proposed in option B in Brach of their condition of service/contractsof service at will such power had been exercised contrary to law and in breach ofthe condition so service/contracts of service that the said person or their unionrepresentatives would be consulted before changes in the conditions ofservice/contracts of service were effected no such consultation had taken place(g) any decision to transfer and/or dismiss any person employed at GCHQ byreason of his or her refusal to give up membership of or the right to be a memberor a national trade unionwould be void and/or would be wrongful and in breach of his or her conditions ofservice/contract of service in that: (i) each person employed at GCHQ was giventhe right by his or her original conditions of service/contract of service to belongto the appropriate national trade union if he or she so wished; (ii) it wasinconsistent with such a term for the Crown to subject such a person to anydetriment by reason of such union membership; (iii) the transfer or alternativelydismissal of such a person would constitute such a detriment.On 8 March 1984 the Divisional Court (Glidewell J.) gave the applicants leave toapply for judicial review. At the hearing of the application the applicants withdrewtheir application for relief in respect of the certificated under the Acts of 1975 and1978 and indicated that they would be content with declaratory relief in lieu of anorder of certiorari to quash the instructions purportedly issued by the ministerGlidewell J. on 16 July 1984 declared that the instruction purportedly the termsand conditions of service of civil Service on 22 December 1983 that the termsand conditions of service of civil servants serving at GCHQ should be revised soas to exclude membership of any trade union other GCHQ was invalid and of noeffect.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 applicantsleave to appeal to the House of Lords. They dismissed a cross-appeal by theapplicants relating to costs The applicants appealed.The facts are set out in the opinions of Loud Fraser of Tullybelton and LordRoskillLouis blom-Cooper Q.C Patrick Elias and Richard Drabble for the applicants Astaff association and a trade union are not necessarily the same thing a staffassociation might not be affiliated to a national trade union. It is part of a nationaltrade union but may only recruit amongst the staff themselves.Glidewell J. finding that General notice 100/84 was a notice giving informationnot a set of regulations or instructions is adapted it is a correct analysis of thesituation regarding the direction and the general notice. The Court of Appealmade no analysisThree points are made regarding the situation up to 25 January 1984 (1) As tothe decision or direction made orally on 22 December 1983 to ban national tradeunions and substitute departmental associations there was no other or furtherindication in that direction or in the confirming letter of 7 February 1984 written bySir Robert Armstrong o the dire3ctore of GCHQ. That is all the knowledge thatanyone had (2) on 25 January a month later the Secretary of State issued thetwo certificates Because of the date one assumes that was consequential on thedirection of 22 December not the other way round (3) The general notice of 25January 1984 was not an instruction the instruction is and can only be thedecision or direction of 22 December it is that and that aloneAssuming that there was a duty to act fairly the refusal to enter on consultationhas bearing on that duty. There is a body of opinion that thought that the failureto consult was a breach of it Tullybelton has pointed out. Loud Reid and viscountRadcliffe treated his evidence as relevant to the dismissal of the appeal. LordDevlin develop the point taken in the case on national security in a passagebeginning at p. 809 which with all respect to those who take a different view Ibelieve to be sound law. Having referred to the undoubted principle that all338

matters relating to the dispassion and armament of the armed forces are left tothe unfettered control of the Crown he made three comments First he put theZamora dictum into its true context. Secondly he observed that when a court isfaced with the exercise oa a discretionary power inquiry is not altogetherexcluded the court will intervene to correct excess or abuse. His third and as hesaid his most significant comment was as to the nature and effect of the principleWhere it opeares it limits the issue which the court has to determine it does notexclude any evidence or argument relevant to the issue (p. 810)As I read the speeches in Chandler’s case the House accepted that the statute4required the prosecution to establish by evidence that the conspiracy was toenter a prohibited place for a purpose prejudicial to the safety or interest of thestate As parliament had left the existence of a prejudicial purpose to the decisionof a jury it was not the Crown’s opinion as to the existence of prejudice to thesafety or interests of the state but the jury’s which mattered hence as LordDevlin. At p. 811.remarked the Crown’s opinion on that was inadmissible but theCrown’s evidence as to its interests was an entirely different matter. Here likeLord Parker in the Zamora. Lord Devin was accepting that the Crown or itsresponsible servants are the best judges of what national security requireswithout excluding the judicial unction of determining whether the interest ofnational security has been shown to be involved in the case.Finally, I would refer to Secretary of State for Defence v. Guardian NewspapersLtd. (1985) A.C. 339 a case arising under section 10 of the Act of 1981. As inChandler’s case the interest of national security had to be considered inproceedings where it arose as a question of fact to be established to thesatisfaction of a court Though the House was divided as to the effect of theevidence all their Lordships held that evidence was necessary so that the courtcould be judicially satisfied that the interest of national security requireddisclosure of the newspaper’s source of informationMy Lords I conclude therefore that where a question as to the interest of nationalsecurity arises in judicial preceding the court has to act on evidence. In somecases a judge or jury is required by law to be satisfied that the interest is proved339

to exist; in others the interest is a factor to be considered in the review of theexercise of an executive discretionary power. Once the factual basis isestablished by evidence so that the court is satisfied that the interest of nationalsecurity is a relevant factor to be considered in the determination of the case thecourt will accept the opinion of the Crown of its responsible officer as to what isrequired to meet it unless it is possible to show that the opinion was one whichno reasonable minister advising the Crown could in the circumstancesreasonably have held. There is no abdication of the judicial function but there is acommon sense limitation recognized by the judges as to what is justifiable andthe limitation is entirely consistent with the general development of the moderncase law of judicial reviewMy Lords I would wish to add a few very few words on the review ability of theexercise of the royal prerogative. Like my noble and learned friend Lord Dipock. Ibelieve that the law relating to judicial review has now reached the stage where itcan be said with confidence that if the subject matter in respect of whichprerogative of which prerogative power is exercise of statutory power withoutusurping the role of legal historian for which I claim no special qualification Iwould observe that the royal prerogative has always been regarded as part of thecommon law and that Sir Edward Coke had no doubt that it was subject to thecommon law prohibitions del Roy (1608) 12 Co. Rep. 63 and the proclamationsCase (1611) 12 Co. Rep. 74 in the latter case he declared at p, 76 that the Kinghath no prerogative but that which the law of the land allows him. It is of coursebeyond doubt that in Coke’s time and thereafter judicial; review pf the exercise ofprerogative power was limited to inquiring into whether a particular power existedand 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 developingmodern law of judicial review Reg. v. Criminal injuries Compensation Board, Exparte lain (1967) 2 Q.B 864 a landmark case comparable in its generation withthe proclamations Case 12 Co. Rep. 74 and Reg. v. Secretary of State for HomeAffairs Ex parte hoasenball (1977) I W.L R. 766 just as ancient restriction in thelaw relating to the prerogative writ and orders have not prevented the courts from340

extending he requirement of natural justice namely the duty to act fairly so that itis required of a purely administrative act so also has the modern law a vividsketch of which my noble and learned friend lord Diplock has included in hisspeech extended the range of judicial review in respect of the exercise ofprerogative power. Today, therefore the controlling factor in determinationwhether the exercise of prerogative power is subject to judicial review is not itssource but its subject matter.Subject to these few comments I agree with the speeches delivered by my nobleand learned friends Lord Diplock and Lord Roskill. I am in favour of dismissingthe appeal only because the respondent has established by evidence that theinterest of national security required in her judgment that she should refuse toconsult the unions before issuing her instruction. But for this I would haveallowed the appeal on the procedural ground that the respondent had actedunfairly in failing to consult union or staff before making her decision.LORD DIPLOCK. My Lords, the English law relating to judicial control ofadministrative action has been developed upon a case to case basis which hasvirtually ran formed it over the last three decades. The principles of public lawthat are applicable to the instant case are in my view well established byauthorities that are sufficiently cited in the speech that will be delivered by mynoble and learned friend, Lord Roskill. This obviates the necessity of myduplicating his citations though I should put on record that after reading andrereading 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 observationsthat are peripheral to what I understand to be the ratio decidendi difficult toreconcile with the actual decision that he felt able to reach and also with oneanotherThe only difficulty which the instant case has presented upon the facts as theyhave been summarized my noble and learned friend Lord Fraser of Tullybeltonand expanded in the judgment of Glidewell J. has been to identify what is in myview the one crucial point of law on which this appeal turns. It never was341

identified or even adumbrated in the respondent’s argument at the hearing beforeGflidewell J. and so excusably finds no place in what otherwise I regard as animpeccable judgment. The consequence of this omission was that he found infavour of the applicants. Before the Court of Appeal the Crown advanced thecrucial point in argument in terms that were unnecessarily and in my viewunjustifiably wide. This stance was maintained in the appeal to this House.Although under your Lordships encouragement the narrower point of law thatwas really crucial was developed and relied on by the respondent in thealternative. Once that point has been accurately identified the evidence in thecase in my view makes it inevitable that this appeal must be dismissed. I willattempt to state in summary form those principles of public law, which lead me tothis conclusionJudicial review now regulated by R.S.C. Ord 53 provides the means by whichjudicial control of administrative action is exercised The subject matter of everyjudicial review is a decision made by some person (or body of persons) whom Iwill call the decision-maker or else a refusal by him to make a decisionTo qualify as a subject for judicial review the diction must have consequenceswhich affect some person (or body of persons) other than the decision-makeralthough 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 thepast been permitted by the decision-maker to enjoy and which he canlegitimately expect to be permitted to continue to do until there has beencommunicated to him some rational ground for withdrawing it on which he hasbeen given an opportunity to comment: or (ii) he has received assurance fromthe decision-maker will not be withdrawn without giving him firs an opportunity ofadvancing reasons for contending they should not be withdrawn. (I prefer tocontinue to call the kind of expectation that qualifies a decision for inclusion inclass (b) a legitimate expectation rather than a reasonable expectation in orderthereby to indicated that it has consequences to which effect will be given inpublic law whereas an expectation or hope that some benefit or advantage would342

continue to be enjoyed although might well be entertained by a reasonable manwould not necessarily have such consequences. The recent decision of thisHouse in re Findlay (1985) A,C 318 presents an example of the latter kind ofexpectation Reasonable furthermore bears different meanings according towhether 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 beempowered by public law and not merely as in arbitration by agreement betweenprivate parties)to make decision that if validly made will lead to administrativeaction or abstention from action by an authority endowed by law with executivepowers which have one or other of the consequences mentioned in thepreceding paragraph. The ultimate source of the decision-making power is nearlyalways nowadays a statute or subordinate legislation made under the statute; butin the absence of any stature regulating the subject matter of the decision thesource of the decision-making power may still be the common law itself i.e. thatpart 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 toexecutive officers of central as distinct from local government and inconstitutional 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 theminister of the Civil Service in reaching her decision of 22 December 1983 thatmembership of national trade unions should in future be barred to all members ofthe home civil service employed at GCHQMy 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 littlepractical assistance form learned and esoteric analyzes of the of the preciselegal nature. Boundaries and historical origin of the prerogative or of what powersexercisable by executive officers acting on behalf of central government that arenot shared by private citizen quality for inclusion under this particular label. Itdoes not for instance seem to me to matter whether today the right of theexecutive government that happens to be in power to dismiss without notice any343

member of the home civil service upon which perforce it must rely for theadministration of its policies and the correlative disability of the executivegovernment that is in power o agree with a civil savant that his service should beon terms that did not make him subject to instant dismissal should be ascribed tothe prerogative or merely to a consequence of the survival for entirely differentreasons of a rule of constitutional law whose origin is to be found in the theorythat those by whom the administration of the realm is carried on do so aspersonal savants of the monarch who can dismiss them at will because the Kingcan do no wrongNevertheless, whatever label may be attaché to them there have unquestionablysurvived into the present day a residue of miscellaneous fields of law in which theexecutive government retrains decision-making powers that are not dependentupon any statutory authority but nevertheless have consequence on the privaterights or legitimate expectations of other persons which would render thedecision subject to judicial review if the power of the decision-maker to makethem were statutory in origin. From matters so relatively minor as the grant ofpardons to condemned criminals of honours to the good and great of corporatepersonality to deserving bodies of persons and of bounty from money madeavailable to the executive government by parliament they extend to matters sovital to the survival and welfare of the nation as the conduct of relations withforeign states and what lies at the heart of the present case the defence of therealm against potential enemies Adopting the phraseology used in theEuropean Convention on Human Rights 1953 (Convention for the protection ofhuman Rights and Fundamental Freedoms (1953) Cmd. 8969 to which theUnited Kingdom is a party it has now become usual in statues to refer to thelatter as national security.My Lords I see no reason why simply because a decision- making power isderived form common law and not a statutory source. It should for that reasononly be immune from judicial review judicial review has I think developed to astage today when without reiterating any analysis of the steps by which thedevelopment has come about one con conveniently classify under three heads344

the grounds upon which administrative action is subject to control by judicialreview. The first ground I would call illegality the second irrationality and the thirdprocedural impropriety.That is not to say that further development on a case-by-case basis may not incourse of time add further founds. I have in mind particularity the possibleadoption in the future of the principle of proportionality which is recognized in theadministrative law of several of our fellow members of the European EconomicCommunity but to dispose of the instant case the tree already well establishedheads that I have mentioned will sufficeBy illegality as a ground or judicial review I mean that the decision maker mustunderstand correctly the law that regulated his decision making power and mustgive effect to it whether he has or not is par excellence a justifiable question to bedecided in the event of dispute by those persons the judges by whom the judicialpower of the state is exercisableBy irrationality I mean what can by now be succinctly referred to as wednesburyunreasonableness (Associated provincial picture Houses Ltd. V. wednesburyCorporation (1984) 1 K.B.223). it applies to a decision which is so outrageous inits defiance of logic or of accepted moral standards that no sensible person whohad applied his mind to the question to be decided could have arrived at itwhether a decision falls within this category is a question that judges by theirtraining and experience should be well equipped to answer or else there wouldbe something badly wrong with our judicial system. To justify the court’s exerciseof this role resort I think is today no longer needed to Viscount Radcliffeingenious explanation in Edwards v. Bairstow (1956) A.C 14 of irrationality as aground for a court’s reversal of a decision by ascribing it to an inferred thoughunidentifiable mistake of law by the decision-maker Irrationality by now can standupon its own feet as an accepted ground on which a decision may be attacked byjudicial review. I have described the third head as procedural impropriety ratherthan failure to observe basic rule of natural justice or failure to act with proceduralfairness towards the person who will be affected by the decision. This is becausesusceptibility to judicial review under this head covers also failure by an345

administrative tribunal to observe procedural rules that are expressly laid downin the legislative instrument by which its jurisdiction is conferred even share suchfailure does not involve any denial of natural justice But the instant case is notconcerned with the proceedings of an administrative tribunal at allMy Lords that a decision of which the ultimate source of power to make it is not astatute but the common law (whether or not the common law is for this purposegiven the label of the prerogative) may be the subject of judicial review on theground of illegality is I think established by the cases cited by my noble andlearned friend Lord Roskill and this extends to cases where the field of law towhich the decision relates is national security as the decision of this House itselfin Burmah Oil Co. Ltd. V. Lord Advocate 1964 S.C. (G.L) 117 shows while I seeno a priori reason to rule our irrationality as a ground for judicial review of aministerial decision taken in the exercise of prerogative powers I find it difficult toenvisage in any of the various fields in which the prerogative remains the onlysource of the relevant decision-making power a decision of a kind that would beopen to attack through the judicial process upon this ground Such decisions willgenerally involve the application of government policy. The reasons for thedecision –maker taking one course rather than another do not normally involvequestions to which if disputed the judicial process is adapted to provide the rightanswer by which I mean that the kind of evidence that is admissible under judicialprocedures and the qya in which it has to be adduced tend to exclude from theattention of the court competing policy considerations which if the executivediscretion is to be wisely exercised need to be weighed against one another-abalancing exercise which judges by their upbringing and experience are illqualifiedto perform So I leave this as an open question to be dealt with on caseto case basis if indeed the case should ever ariseAs respects procedural propriety I see no reason why it should not be a groundfor judicial review of a decision made under powers of which the ultimate sourceis the prerogative Such indeed was one of the grounds that formed the subjectmatter of judicial review in Reg. v. Criminal Injuries Compensation Board, Exparte Lain (1967) 2 Q.B. 864 Indeed where the decision is one which does not346

alter right or obligations enforceable in private law but only deprives a persons oflegitimate expectations procedural impropriety will normally provide the onlyground on which the decision is open to judicial review. But in any event whatprocedure will satisfy the public law requirement of procedural propriety dependsupon the subject matter of the decision the executive functions of the decisionmaker(if the decision is not that of an administrative tribunal) and the particularcircumstances in which the decision came to be made.My Lords in the instant case the immediate subject matter of the decision was achange in one of the terms of employment of civil servants employed at |GCHQThat the executive function of the minister for the Civil Service in her capacity assuch included making a decision to change any of those terms except in so far asthey related to remuneration expenses and allowances is not disputed. It doesnot seem to me to be of any practical significance whether or not as a matter ofstrict legal analysis this power is based upon the rule of constitutional law towhich I have already alluded that the employment of any civil servant my beterminated at any time without notice and that upon such termination the samecivil savant may be re-engaged on different terms. The rule of terminability ofemployment in the civil service without notice of which the existence is beyonddoubt must in any event have the consequence that the continued enjoyment bya civil servant in the future of a right under a particular term of his employmentcannot be the subject of any right enforceable by him in private law at most it canonly be legitimate expectationPrim facie. Therefore civil servants employed at GCHQ who were members ofnational trade unions had at best in December 1983 a legitimate expectation thatthey would continue to enjoy the benefits of such membership and ofrepresentation by those trade unions in any consultations and negotiations withrepresentatives of the management of that government department as tochanges in any tem of their employment. So but again prima-facie only. Theywere 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 tohave communicated to the national trade unions by which they had theretofore347

een represented the reason for such withdrawal and for such unions to be givenan opportunity to comment on itThe reason why the minister for the Civil Service decided on 22 December 1983to withdraw this benefit was in the interests of national security. National securityis the responsibility of the executive government: what action is needed toprotect its interests is as the cases cited by my learned friend Lord Roskillestablish and common sense itself dictates a matter upon which those uponwhom 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 ineptto deal with the sort of problems which it involves .The executive government likewise decided and this would appear to be acollective decision of cabinet ministers involved that the interests of nationalsecurity required that no notice should be given of the decision beforeadministrative action had been taken to give effect to it The reason for this wasthe risk that advance notice to the national unions of the executive government’sintention would attract the very disruptive action prejudicial to the nationalsecurity the recurrence of which the decision barring membership of nationaltrade unions to civil servants employed at GCHQ was designed to prevent.There was ample evidence to which reference is made by others of yourLordships that this was indeed a real risk; so the crucial point of law in this caseis whether procedural propriety must give way to national security when there isconflict between (1) on the one hand the prima facie rule of procedural proprietyin public law applicable to a case of legitimate expectations that a benefit oughtnot to the withdrawn until the reason for its proposed withdrawal has beencommunicated to the person who had theretofore enjoyed that benefit and thatperson had been given an opportunity to comment on the reason and (2) on theother hand action that is needed to be taken in the interests of national securityfor which the executive government bears the responsibility and alone hasaccess to sources of information that qualify it to judge what the necessary actionis. To that there can in my opinion be only one sensible answer. That answer isYes348

I agree with your Lordships tat this appeal must be dismissedLord 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 ofthe Civil Service Order in Council 1982 That specific power purported to beexercised orally on 22 December 1983 The terms in which it is claimed to havebeen exercised are contained In a letter dated 7 February 1984 from Sir RobertArmstrong writing as Head of the Civil Service to the Director of the GovernmentCommunications Headquarters at Cheltenham (GCHQ) The exercise of thepower took the form of:Instruction that the condition of service under which civil servants are employedas members of the staff of the Government Communications Headquarters shallbe varied so as to provide that such civil servant shall not be member of anytrade union other than a departmental staff association approved by yourselfThe making of this change in the condition of service of civil savants employed atGCHQ was announced in the House of Commons by the Secretary of State forForeign and Commonwealth Affairs on 25 January 1984 and on the same day heissued certificates under section 138 (4) of the Employment Protection(Consolidation) Act 1978 certifying that employment at GCHQ was to beexcepted from those section for the purpose of safeguarding national security.On the same day the Directory of GCHQ informed his staff in writing of thedecision of the issue of the certificates and of the various options which werethereafter to remain open to them.My Lords the background to these action in December 1983 and January 1984 isfully set out in the speech of my noble and learned friend lord Fraser ofTullybelton which I gratefully adopt it requires no repetition. Nor does the historyof the antecedent rights of those concerned to join trade union. That theinstruction thus given and the certificates thus issued drastically altered the tradeunion rights of those civil savants concerned cannot be doubted Nor can it bedoubted that the issue of the instruction and of the certifications and of thecertificates without prior warning or consultation of any kind with the various trade349

unions concerned either at a national or a t a local level involved a completedeparture from the normal manner in which relations between management andTANZANIA LAW REPORTS(1992) T.L.R.The appellant sued the respondents in the High Court for defamation andwrongful termination of employment . The basis of his suit for defamation wasthat a defamatory statement relating to him was published to persons not havingcorresponding interest and duty to receive the publication. The defamatorystatement was contained in a probe team report which instead of being publishedto the general council of JUWATA which had ordered the prove was published tokamati ya Usimamizi ya Baraza kuu (KUBK) and the board of directors of theborders Development Corporation (WDC) of which he was general manager. Andthe basis for his complaint against wrongful termination was that he was notgiven 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 that350

the appellants employment be terminated and the board of directors of W.D.Cterminated his services without giving him an opportunity to be heard. The trialcourt found the complaints to be baseless on the following grounds (a) that therespondents were availed the defence of qualified privilege; and (b) that theappellant was afforded and opportunity to be heard by KUBK. On appeal to theCourt of Appeal.Held: (I) Where a person raised the defence of qualified privilege on the groundthat he had a duty to make the offending statement it must further be shown thatthe statement was made in good faith and that the person to whom it was madehad a corresponding interest and duty to receive it(ii) the report containing defamatory statements was ordered by the generalcouncil of the first respondent and was expressly required to be submitted to thatbody. Publication of the report to members of KUBK when they were notsupposed to receive it was wring; (iii) it was necessary to afford the appellant theopportunity to be heard by the body which ultimately decided his fate i.e. theboard of directors, because there can be no guarantee that given that opportunityhis defence before the board of directors would necessarily be same as hisdefence 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 thesame plaint he also sued the second respondent, the Workers DevelopmentCorporation (W.D.C.) for wrongful termination of his employment. The secondrespondent in a counter-claim sued for unrefunded loans which the appellant hadobtained from the said respondent with or without authorization. The high Courtin which the action was brought dismissed both the claim and the counter-claimand made an order for costs against the appellant. The appellant is nowappealing, but the second respondent has not appealed against the dismissal ofits counter-claim351

The facts of the case may be stated briefly as follows; The appellant wasemployed by the W.D.C. as its general manager; As part of his duties, theappellant prepared and submitted a report of the W.D.C. and its subsidiarycompanies at the annual meeting of the general council of JUWATA it is thegeneral council of JUWATA it is the genera council of JUWATA consisting of twoto three hundred members which supervises the affairs of the W.D.C As theappellant was trying to present his report before the general council members ofthe council felt that the report involved certain inadequacies or unsatisfactorymatters which made it necessary to appoint a probe team of seven members toexamine the report and suit their findings to the general council at its nextmeeting.; After the report of the probe team was prepared it was presented to theSecretary-General of JUWATA who, however, submitted it, not to the generalcouncil 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 ofthe W.D.C.Upon receiving the probe report, the KUBK required the appellant to appearbefore it to defend himself against allegations made against him in the report andhe did so. In addition to the appellant’s defence the KUBK also received from theboard of directors of the W.D.C. their comments on the probe report,. After thatthe KUBK proceeded to appoint a select committee to scrutinize further the probereport in the light of the appellant’s defence and the comments by the board ofdirectors of the W.D.C. and then report back to the KUBK. The select committeeaccordingly submitted its report and after discussing and adopting it the KUBKrecommended the termination of the appellant’s employment acting on therecommendation, the board of directors of the W.D.C. accordingly terminated theappellant’s employment.The appellant’s claim for defamation was essentially based on the publication ofthe probe report to the bodies of persons other than that which had ordered ordirected such probe. And the basis for his complaint against wrongful terminationwas that he was givenNo 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 thefirst respondent had the defence of qualified privilege. He dismissed the claim forwrongful termination on the ground that such termination was justified in the lightof the appellant’s proved or admitted misconducts.At the heading of this appeal the appellant was represented by Mr. Lukwarowhile Mr. Muccadam appeared for the respondents. Mr. Lukwaro filed a total ofeight grounds of appeal challenging the dismissal of his client’s suit by the HighCourt and the failure by that Court to award him costs after dismissing hecounter-claim by the second respondent.The learned judge found that the report by the probe team did containstatements, which were defamatory of the appellant. When dealing with thatissue he said inter aliaThere is no doubt that some of the publication is defamatory matters like adulteryimputations and fraud allegations are certainly defamatoryWe are satisfied that this finding was quite justified. There was ample evidence tosupport it. However he misdirected himself by saying that the probe teamsubmitted its report to the general council of JUWATA. For there was abundantevidence of the appellant and the defence witness. One Mr. Mashashi that thereport by the probe team was submitted to the KUBK not to the general council ofJUWATA.As stated earlier, the learned judge found that the first respondents had thedefence of qualified privilege available to it This was so because in his view therewas public duty to investigate into the activities of the W.D.C, and its generalmanager” He took the view that once there was that dirty then in the absence ofany malice and indeed the appellant concede that absence any malice on thepart of members of the probe team, the occasion was one of qualified privilegeIt was established by the evidence that the probe team was appointed by thegeneral council of JUWATA to probe into the affairs of the W.D.C. including thoseof the appellant as its general manager, and report its findings back to the353

general council of JUWATA As already pointed our, however, the report of theprobe team was submitted not to the appointing authority, the general council ofJUWATA, but to the KUBK. It is quite apparent that the general council ofJUWATA and the KUBK are two different bodies the former has two to threehundred members while the latter comprises 20 to 30 members only. The twobodies also differ in their functions The general council of JUWATA supervisesthe affairirs of the W.D.C while the KUBK is under the general council and dealswith matters of day-to-day administration.Where a person raise the defence of qualified privilege on the ground that he hadduty to make the offending statement in must further be shown that the statementwas made in good faith and that the person to whom it was made had acorresponding interest and duty to receive it. Admittedly in the instant case theprobe team made the defamatory statements in the performance of the dutyimposed on it by the general council of JUWATA, and it was common ground thatthese statements were made without malice. But the question is whatcorresponding interest and duty did the KUBK have to receive the report? Thereport was ordered by the general council and was expressly required to besubmitted to that body. The circumstances leading to the KUBK receiving thereport are not at all apparent. The KUBK was not shown to be the discipliningauthority of the appellant, and certainly it was not authority vested with the powerof appointing or termination the services of the appellant; on the evidence suchpowers were vested in the board of directors of the W.D.C. It seems plaintherefore, that the probe report was wrongly published to members of the KUBKwhen they were not supposed to receive it i.e. when they had not correspondentsinterest and duty to receive it and to that extent the defence of qualified privilegecannot succeedAs regards the issue of termination the appellant’s employment, there was clearevidence that this was done by the board of directors of W.D.C. The appellantconcedes that this was the proper authority to exercise that power, but hiscomplaint is that he was afforded no opportunity to be heard by that body beforethe latter terminated him/ In dismissing the appellant’s claim the trial judge took354

the view that the appellant’s termination was justified in the light of the appellant’sproved or admitted misconducts such as the loaning of money to himself withoutauthority. With due respect to the learned judge. However, this did not do awaywith the need to along the appellant was protesting his innocence against theallegation which were made against him. His admission of some of the affixationswere invariably accompanied explanationsDesigned to absolve him. In those circumstance if the disciplining authority wasminded to impose a sanction on him, as indeed it did it was right and proper, inaccordance with the principle of natural justice, to hear him before condemninghim. Indeed, even if his admissions of the allegations before the probe team wereseemingly unequivocal, we think that it was still necessary to afford him theopportunity to put up his defence before the board of directors although it wouldnecessarily be the same as his defence before the probe team.Mr. Muccadam, learned counsel for the respondents contended before us andalso in the High Court that the appellant was duly afforded the opportunity to beheard when he was called upon to defend himself before the KUBK With duerespect to the leaned counsel, however, this argument cannot be sustained.First, the KUBK was not the authority, which imposed the sanction beingcomplained against. The sanction was imposed by the board of director of theW.D.C. the appellant’s appearance therefore ought properly to have been beforethat body. What is more and this seems to be even more serious the evidenceshows that the substance of the appellant’s defence was not placed before wasnot paced before the board of directors. The Deputy Secretary- General ofJUWATA Mr. Elias Mashashi stated in his evidence for the defence that thereport of the KUBK (Ex.D1) was not submitted to the board of directors of theW.D.C. This means that the board of directors terminated the appellant’semployment purely o the strength of a bare recommendation by the KUBK andthat was totally wrong.We are satisfied that the learned trial judge wrongly dismissed the appellant’sclaims for defamation and for wrongful termination of his employment355

The second respondent’s counter-claim was dismissed but nothing further wassaid about. The general rule in civil cases is that costs follow the event. That is tosay the successful party is entitled to recover his costs unless there are groundsfor ordering otherwise. In this case the appellant was the successful party as faras the counter-claim was concerned, and according to he general rule he wasentitled to recover his costs. The trial judge gave no reasons and we could findnone, for departing from the general rule. On that account we find that theappellant was wrongly denied his costs following the dismissal of the counterclaimagainst him.In the result we allow the appeal. The decision of the High Court is set aside, andinstead thereof we enter judgment for the appellant as prayed in the plaint. Weaward shilling 200,00/= damages for the defamation and shillings 50,00/= for thewrongful termination of employment. The appellant shall have his costs both inthis court and in the Count below, the latter to include costs in respect of thedismissed counterclaimALLY HASSAN MPAPATA v, REPUBLIC(HIGH COURT OF TANZANIA (MKUNDEM J, )7 September 1992 – DAR ES SALAAMCriminal practice and procedure – pleas – plea of putrefies acquit whether available where previous proceedings have been declaredand voidConsent for prosecution of an economic offence was given a person who was notauthorized to do so. This point escaped the attention of the trial court, the trialproceeded and the accused and acquitted for insufficiency of evidence. TheD.P.P. appealed to the High Court. Preliminary objections were raised one ofwhich was that he was not competent to do so. The High Court upheld thisobjection and declared the proceedings in the lower court null and void. The356

Court did not stop there. It considered the evidence adduced at the trial, upheldthe 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 thedame offence and was word for word similar to the charge in the previous trialdeclared to be a nullity by the High Court. Consent for prosecution was dulygivenThe accused persons, when required to plead, raised the plea of autrefois acquitis not available to an accused person whose previous trial has been declared nulland voidAppeal dismissed.IN THE COURT OF APPEAL OF TANZANIAAT ARUSHA(CORAM RAMADHANI J.A BOMANI Ag J.A AND KANYWANICIVIL APPEAL NO. 27 OF 1992BETWEENMOSES J. MWAKIBETE.. APPELLANTAND357

1. THE PRINCIPAL SECRETARY (ESTABS)2.THE ATTOBREY GENERAL. RESPONDENTS(Appeal from a Ruling and order of theHigh Court of Tanzania at Arusha(lugakingira J)dated the 7 th day of April 1992inMisc. Civil Application No. 11 of 1992RAMADHANI J.A.The appellant Moses J. Mwakibete was appointed as judge of the High Court ofTanzania in 1973pursuant to the recommendations of a Commission appointedby the president under Article 110 (5) (a)of the constitution of the unitedRepublic of Tanzania he was removed from the office of judge on 15 th May 1991The decision to remove the appellant from that office was communicated to himby a letter from the Principal Secretary (Establishments) in short P.S Estabs)MUF3/33/310/390 of 24 thMay 1991 (hereinafter referred to an An) that wasmade u.f.s. the chief justice (C.J) who inetinled it on 3 rd June 1991 That letter inpart read as followsNimeagizwa nikuarifu kuwa Rais chini ya Ibara 110 (5) )6) na (7) ya katibu yaJamhuri ya Muungano wa Tanzania amekuondoa katika kazi ya Ujaji kwakukustaafisha kwa manufaa ya umma358

In English I have been instructed to inform you that the president under Article110 (5) (6) and (7) of the constitution of the united Republic of Tanzania hasremoved you from the office of judge by retiring you in the public interest.The appellant received that letter on 4 th June 1991. His immediate reaction wasto 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 itnecessary to give references of the various letters cited in this judgment thoughwe 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 13 th June,1991 The letter of the P.S. (Estabs) was answered by the Registrar of the Courtof Appeal under the instructions of the C.J . that the Judiciary had no authority todivulge the contents of a report addressed to the president The appellant was notput off but followed up his request with two mere letters that of 27 th June and thatof 4 th July, 1991 written directly to the C.J. These were not replied to So hepetitioned the Prime minister for his assistance. The prime minister contacted theC.J. who replied by his letter of 6 th August 1991 as follows: Jaji Mkuu hanamamlaka ya kutekeleza maombe ya Ndugu Mwakibete kwani kufanya hivyoiftakuwa kukiuka katiba ya nche. In English The chief justice is not competent toaccede to the request of Mr. Mwakibete because to do so will violate thecountry’s constitution. The C.J. said so according to the letter because thecommission was appointed by the president to advise him which task it haddischarged.359

The appellant by then had already written another letter to the P.S. (Estabs) on25 th July 1991 (referred to as Annex B.1 ) in which he also challenged theconstitutionalityof the contents of Annex A The letter was answered afterreferring to various other communications thus therefore in view of theexplanation of the Registrar Court of Appeal in his aforesaid letter I am sorry Ihave nothing to add. That reply was contained in a letter of 6 th August 1991which concluded by wishing he appellant all the best That was intended to put aseal on two matters: the demand for a copy of the report of the Commission andthe challenged constitutionality of the contents of Annex A namely removal byretirement in the public interest.However the appellant was not satisfied. So he wrote another letter (Annex A tothe G.J on 16 th August 1991. That letter was not replied to So he sent anotherletter to the Chief Secretary on 25 th September 1991 In reply to the latter theChief Secretary in his letter of 31 st October 1991 reiterated thusMadhumuni ya barua hii ni kukuarifu kuwa serikali sasa inchukukia suala lakokama limifikia mwisho (finality) na kuwa hakutakuwepo tena kuandikiana baruakati yako na Viongozi wa SerikaliIn short he declared the matter finally close. Realizing that his efforts hitheretowere not getting him anywhere the appellant turned to the Courts. He filed anapplication (High court Misc. Civil Application No. 264 of 1991) for leave to applyfor an order of certiorari against the P,S. (Estabs) and the Attorney General as360

the respondents such order was granted by LUGAKINGIRA on 16 thJanuary1992 on the same day the appellant opened misc. Civil Application No. of 1992The respondents wete ordered to file counter-affidavits on or before 28 thFebruary 1992 In the meantime the chief Secretary on 21 st February 1992 wroteto the appellant withdrawing Annex A which had purported to remove theappellant from the office of judge by retirement in the public interest andsubstituting there for Annex D.1 which sought to simply remove the appellantfrom the office of judge as provided under .of the Constitution. That letterwas routinely channeled through the C.J who promptly passed it on to theappellant the next day. The counter-affidavit contained that letter as an annexWhen the matter came up for hearing on 26 th March 1992 a question arosewhether in addition to affidavits statements were required a procedure that thelearned judge (LUGAKINGIRA J.) thought was common in such applicationsHowever, he adjourned the hearing to the following day to give the parties time toresearch on the matter and present their findings The parties found out that onlytwo applications had been filed with statements in addition to affidavits while therest 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 toaddidavits would occasion no injustice and so they agreed in writing under O. 43R.2 of the civil procedure Code 1966 to do so and in fact did so. The counterstatementof Mr. Mono the learned Senior state Attorney who represented bothrespondent contained a preliminary objection which sought to strike out theapplication for being superfluous , since Annex A which according to the prayer361

of the appellant ought to be quashed by certiorari had already been withdrawnand replaced by Annex D. 1 Mr. Mono concede that Annex A wasunconstitutional. The appellant objected condemningthe procedure of filingstatements because that procedure gave Mr. Mono an opportunity to raise apreliminary objection not contained in his counter-affidavit which gave him theright to begin addressing the Court. However the appellant was . Thepreliminary objection was heard and decided in fauour of the respondents andconsequently the application was struck outIn the course of the proceedings wide ranging submissions were made and thelearned judge made rulings on themThe position was that the learned judge made two rulings First he ruled thatAnnex D.I was admissible and had effectively substituted for Annex A thereforethe application was superfluous second he ruled that removal from officeincluding removal from office of judge under Art 110 (7) of the Constitution is aless serious matter than retirement in the public interest. The appellant wasaggrieved by the first ruling and the respondents by the second ruling Hence theappeal ad the cross-appeal. The appellant appeared before us in person with atwelve ground memorandum of appeal Mr. Mono for the respondents raised apre Liminary objection and sought to have three of the grounds of appeal andtwo of the prayers by the appellant to be struck out because he said they wereirrelevant. We disallowed that objection but reserved our reasons which we nowproceed to give We found Mr. Mono preliminary objection to be novel. Therelevance or otherwise of a ground of appeal is a proper subject of a respondent362

to response to the .. of an appellant. So it was not proper of Mr. Mono to raisea preliminary objection on the basis of irrelevanceThe appellant too had a preliminary point which was not based on any rule of thecourt of Appeal Rules 1979. We nevertheless used Rule 3 and heard him despiteMr. Mono’s objectionThe appellant had written to each one of us a letter complaining about thediscontinuance of payment of this monthly salary and allowances and prayerthat we should intervene administratively on his behalf and ask the executive torevive the payments. He also accused the executive of committing contempt ofcourt by ignoring the order of MAPIGANO Ag, J.A. (as he then was) staying theexecution of the order of LUGAKINGIRA J. We decide against the appellant forthe following reason.AdmittedlyLUGAKINGIRA J. by striking out the appellants application hadconfirmed the appellants\ removal fro the office of judge However it was not thatorder which has stopped the appellants salary and other benefits. These hadbeen discontinues before the learned judge was seized of the application. Assuch the order by MAPIGAONO Ag J.A of a stay of execution of the order ofLUGAKINGIRA J. could never have had the effect of restoring the remunerationof 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 wouldappear that six of them grounds 2,3,7,9,10 and 11 are basically about one andthe same thing namely the allegedly wrong admission of Annex D.I by thelearned trial judge, The appellant submitted with al lot of force that Annex D. 1was inadmissible and that if the learned judge had rejected it then there wouldhave been only Annex A on record, which was the object o the application forcertiorari In ground to the appellant contended that the admission of Annex D.1was erroneous Yet in ground 3 he seemed to argue in the alternative that noweight should be attached to that Annex at all The appellant went on to argue inground that Annex D.1 was not written in good faith and that this was one of hisreasons why it should not have been admitted at all. His other reason forregarding Annex D.1 inadmissible were that its contents were designed topreempt the judicial process and so it was a interference in the dueadministration of justice by the Executive that was ground 10 while in ground 11he 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 theissue/doctrine of estoppel which was the appellant’s other argument for theinadmissibility of Annex D.1.We are of the considered view that the consolidation of the six ground into onewould not prejudice the appellants appeal in any way and so we haveaccordingly decide to consolidate them we shall first deal with the admissibility ofAnnex 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 learnedjudge’s ruling and in our opinion correctly so the learned judge had said There isno evidence that these letters reached their addresses or if they did that theywere replied to The letters in question are Annexes B.1 and B. 2whichcontained complaintsby the appellant to the P/S (Estabs) and to the C.JrespectivelyThe learned judge talked of two thing on which he found no evidence and theseare whether the letter had been received and if received whether they werereplied to. Receipt of these two letters was specifically made an issue by theappellant in the seventh paragraph of his affidavit in support of his application. Inthe counter-affidavit of the respondents it was affirmed in paragraph 3 That all ofthe facts as deposed in the affidavit except para 6 are true .. So the appellantsaverment in his paragraph 7 that Annexes B.1 ad B.2 were received by therespondents is true. Indeed the counter-affidavit went further to dispel any doubtswhen it sad in paragraph 6 what is stated in paragraph 3 and 4 is based oninformation obtained from president’s officeEstablishment”. Thus the deponent obtained the information of the receipt of atleas one of th two letters from the appropriate office. The appellant properlysubmitted 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 31 stOctober 1991 Annex X saying that the Government was not going to engageitself in a discussion of constitutional matters The appellant argued that was areference to the contents of Annex B.1 and B.2 and that it necessarily impliesacknowledgement of receipt of the two letters. Mr. Mono did not really have areply to that contention. He merely said that Annex B.1 might have been receivedbut 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 theacknowledgement of receipt of the lettersThe learned Judge was right when he said that there was no evidence that thetwo letters were replied to. And that is precisely the argument of the appellantthat he received no reply at all but that some six months later and after the matterwas already in the court, the chief Secretary signed under his hand Annex D.1was not bona fide. Mr. Mono’s response was that the delay is not evidence ofhad faith. He stood his ground even in the face of the stark fact that Annex D.1came when the matter was already in Court.If it were mere delay in writing Annex D.1 we would have readily gone along withMr. Mono submission However the situation is complicated by the letter of 31 stOctober 1991 which the very Chief Secretary wrote to the appellant declaringthat the Government had no intention of opening a legal discussion concerningthe 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 constitution366

when questioning the constitutionality of his removal by retirement in the publicinterest However about four months after the above mentioned letter and with theknowledge of the appellants application the Chief Secretary wrote Annex D.1rectifying the unconstitutionality complained of the. The question is whether thiswas done in good faith or as maintained by the appellant it was done in bad faithUnfortunately, that question is made even more difficult to answer by Mr. Monoadmission that Annex A, the letter which proported to remove the appellant fromthe office of judge by retirement in the public interest was unconstitutional. But inthe face of Annex D.1 Mr. Mono became aware of the unconstitutionality ofAnnex A.We have been troubled by the question whether this unconstitutionality of AnnexA was not apparent to the learned Chief justice when he passed on the letter tothe appellant and more still when the appellant complained to him about it. If theC J was aware of the unconstitutionality and yet closed his eyes to that fact forall that time then it could be inferred that Annex D.1 was indeed made in hadfaith. However, if it escaped him which we find difficult to accept, then bad faithcould not be imputed. What we have said about the C.J is also true with regard tothe respondents one of whom is the Attorney-General who is the chief legaladvisor to the GovernmentAfter giving the question a lot of thought we are unable to agree with theappellant that Annex D.1 was made in bad faith We are of the considered opinion367

that the learned Chief justice as well as the Executive ought to have known thatAnnex A was not in compliance with the Constitution. We are equally persuadedto believe that the Executive wrote it and were determined to stick to it becauseprobably, they were convinced that I was in the best interest of the appellant weshall 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 wellpoint out here that we have also disposed of the first ground of appeal that thelearned 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 groundsconcerning the admissibility of Annex D.1 However, it has been associated withadmissibility on the issue of bad faith which we have also disposed ofTo go back to Annex D.1 the appellant contended that it is bad in law since it hasretrospective effect and that therefore it should not have been admitted inevidence by the learned judgeThe appellant pointed out that while Annex D.1 was dated 21 st February 1992 itcited the date of the removal from the office of judge as 13 th May 1991 Theappellant 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 ofemployment with retrospective effect is bad in law. The appellant submitted thatthe situation is worse in the case of employment such as that of a judge which isprotected by the Constitution. Mr. Mono pointed out that Annex A was written on368

24 th May 1991 informing the appellant that he had been removed by retirementin the public interest with effect from 13 th May, 1991 and that although that lettertoo had retrospective effect as Annex D.1 yet the appellant has not complainedagainst it.With due respect that argument of Mr. Mono does not appeal to us at all for twosimple reasons First we cannot say with certainty that the appellant would besatisfied with the retroactivity of Annex. A He has not had the opportunity toargue his application of Annex A. he has not had the opportunity to argue hisapplication for certiorari against that letter. So we cannot say that retroactivitywould not have been one of his grounds for seeking that it be quashed. Secondoven if for the sake of argument we take it that the appellant would not havecontested the retrospective effect of Annex A, we ask: Does his acquiescencerender the retrospective termination of employment lawful if he is right in hiscontention that such termination is had in law?There is no dispute that both letters communication the President’s decisionretrospectively However what we are concerned with here is Annex D.1 and the369

question is whether the removal from the office of judge with retrospective effectis lawful. The decision in Shipping Line v.R. by KISANGA J. as he then was isundoubtedly of high persuasive authority. But does it apply to removal from as itdoes to termination of employment? KISANGA J. was concerned with theSecurity of Employment Act, Act, 574 At p, 244 the learned judge said : It is quiteclear that th notices to the first three employees which purported to terminatetheir employment retrospectively were improper because notice must reach theemployee before the period of it runs cut which was not the case here” he didnot cite any authority for that statement but presumably it is Section 37 of Cap574 Be it as it may that statute does not apply to the president. Section 3providesNothing in this Act shall be construed asProhibiting restriction or otherwiseAffection the exercise by the presidentOf his powers to dismiss remove fromOffice in the service of the UnitedRepublic or any member of the LocalGovernment Service or as empowering aConciliation Board to order the paymentOf the statutory compensation to anySuch person on account of his dismissalRemoval from office or termination ofAppointment by the President but saveAs a foresaid this Act binds the UnitedRepublic and every authority otherThan the president having the powers ofDismissal removal termination ofAppointment or discipline in respect ofThe civil service of the united RepublicOf the Local Government Service inRelation to employees in such services370

We are therefore of the opinion that an authority based on Cap. 574 howeverpersuasive is not relevant here But oven without that authority is removal fromoffice by an order of the President with retrospective effect lawfulAs a general rule there are three possible alternative dates when an office ortermination of employment may lawfully take effect. Firstly, it any be the date ofhis suspension or interdiction pending disciplinary proceedings or secondly itmay be the date when the decision to remove such officer from office or toterminate that officer’s employment is made; or thirdly the date of the letter ofnotification if that letter does not indicate any other date.In so far as appointments by the president are concerned the common practiceseems to be that when such appointments are terminated the effective date isthat date when the president makes that decision to terminate Obviously theofficers concerned can only be notified of the termination after that decision hadbeen made. There is therefore a distinction between the date when the decisionis made and the date when the decision is communicatedProvision 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 himwhether the371

Judge ought to be removed from office. Where the Commission advises thepresident that a judge ought to be removed from office then the president isobliged to do so. The effective date of removal is the date when the presidentmakes the decision to remove the judge from officeDuring the month of April 1991 the appellant appeared before the Commissionappointed under Article 110 (6) of the Constitution to investigate the question ofremoving him from the office of judge. On the 4 thJune 1991 the appellantreceived a letter dated 24 th May 1991 from P.S (Esbabs) (Annex A) informing himthat the president had removed him for the office of judge by retiring him in thepublic interest as provided under Article 110 (5) (6) and (7) with effect from 13 thMay 1991. That letter (Annex A) was replaced by another letter dated 21 stFebruary 1992 from the chief secretary (Annex D)which stated that theappellant had been removed from the office of judge with effect from 13 th May,1991 That is to say effective date of his removal from office was still 13 th My1991 The appellant contended that Annex D.1 was inadmissible because of itsretrospective 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 theappellant from the office of judge on 13 th May, 1991 and according to the generalrule enunciated above, that is not retrospective. The date of the letter informing372

him of that decision is in our view immaterial although it would be desirable thatthe communication of such a decision should not be unduly delayed. Thatdisposes of hat aspect of the consolidate of appealIn principle laws when enacted should not have retrospective effect especiallywhen 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 DictionaryBaldwins (1913) page 1068). The English Courts also hold that a stature shouldnot be construed so as to make it retrospective (3 B 551) Nothing but clear andexpress word will give such affect to a statute. This legal principle would in ourview apply equally to administrative decisions.The appellant also contended that Annex D.1 should not have been admittedbecause it was a manifestation of the Executive interfering with the judiciary. Hishe warned was an encroachment on the constitutional doctrine of the separationof powers. We better quote his own words:The executive was telling the Court Don’tGive any decision on Annex A which is beforeYou as you proposed to do because that annexIs unfavorable to my cause as a result I haveDecided to withdraw it and replace it withAnnex D.1 to which you should address your mind instead373

The appellant then concluded by referring us to the three requirements of dueadministration of justice as enunciated by Lord DIPLOCK in Attorney – Generalv. times Newspapers Ltd(1973) All E.R 54 at 72The third requirement is material here and we quote itOnce a dispute has been submitted to aCourt of Law they (citianan ) should be ableTo rely on there being no usurpation by anyOther person of the function of that court toDecide it according to law Conduct which isCalculated to prejudice any of these threeRequirements or to undermine the publicConfidence that they will be observed isContempt of Court.The appellant contended that by introducing Annex D.e at that point of time theExecutive was usurping the judicial function of the court and so that letter waspalpably inadmissible .Mr. Mono had two replies to that. First he said that Annex D.1was not calculatedto preempt the judicial process on the contrary it was meant to expedite it. Courtshe pointed out have in consider justifiable issues. Then Mr. Mono submitted thatAnnex D.1 was still capable of being challenged in Court. All that the appellanthad to do was to amend the pleadings.The crucial question here is whether or not the Executive’s release of Annex D.1was or was not calculated to prejudice any of the three requirement and inparticular, the third one quoted above. How did the Executive by Annex D.1374

usurp the function of the High Court of Tanzania at Arusha to decide the disputebefore it according to law? The factual situation of what has transpired leading upto this appeal negates any allegation of such usurpation. But does it also dispelan attempt to usurp? We are satisfied that it does. Admittedly, Annex D.1 waswritten when the Court was seized of the dispute but this was also before therespondents had filed their counter-affidavit and it was hence annexed to thatcouner-affidavit. We have no doubt at all that the Attorney-General knew that hiscounter-affidavit would not automatically stop the Court from hearing theapplication. If anything at all he hoped to use it as he did to make a preliminaryobjection. Still the court had to hear that objection and make a ruling on it Thatcould 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 asan attempt to usurp the judicial functionWe might have been persuaded differently had we found that Annex D.1 waswritten in bad faith. But as we have said we have but been so persuaded. Outposition is made stronger by the consideration of another aspect of the matterinvolving section 34 C (3) of the Evidence Act 1967.We are satisfied that there was neither usurpation not attempted usurpation bythe Executive of the judicial function of the High Court to decide the case beforeit according to law375

The appellant also raised the issue of estoppels both at the trial and at theappellate stages. At the High Court level LUGAINGIRA, J. dealt with that issuevery exhaustively. Five and a half out of a total of fifteen typed pages, that isslightly over a third of the entire judgment were devoted to estoppel. The learnedjudge correctly observed that Section 123 of the Evidence Act 1967 is in parimaterial with Section 115 of the Indian Evidence Act 1872He then went on to consider three authorities to wit Sarat Chunder Day v. GopalChunder 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 tooperate. These are.First, a tacit representation by one personTo another; secondly an intention that theRepresentation should be acted upon by thatOther person; thirdly, action by that otherPerson to his detriment should the maker ofThe representation seek to repudiate itThe learned judge had no problems at all with the first two equipments. He foundthem to exist. However the learned judge was of the opinion and a right one toothat the appellant never acted on the representation so that its withdrawal wouldinjure him for, otherwise he would not have been striving to obtain an order ofcertiorari to quash the very representation. The learned judge found estoppel tobe unavailable on that account. In addition he rejected estoppel for anotherreason .Mr. Mono cited to the learned judge Sarka’s Law of Evidence 3 rd ed. At p 1140which provides that there can be no estoppel against the Government on a pointof law and construction of a statute. The learned judge also cited Lord376

MAUGHAM in maritime Elective C. Ltd General Diaries Ltd [1937] 1 All E.R 746at 753 GEORGES C.J. in Tarmal Industries Ltd, v, Commissioner of Customsand Excise [1968] E.A 471 and D.P.P. v. Mwita Marwa [1988] T.L.R 306 all to thesame effect. He then concluded .In the instant application therefore, Annexure(sic) D.1 was validly issued to set right theconstitutional breach perpetrated in Annextures A.And for my part, it matters not that this wasAfter the proceedings were commenced as I toldThat court proceedings cannot be used to compelAnyone to persist in defying the law. For theseReasons I am again of the view that estoppeldoes not avail itselfBriefly, that is the holding of the learned judge who is accused by the appellant ofglossing over estoppelAs to the third requirement of estoppel which the learned judge found not to havebeen satisfied the appellant submitted that the essential point made by Sarkar isthat estoppel is based on the change of position brought about by therepresentation or actions of a person bound by the estoppel . The appellantpointed out that he as rising his salary. That he had to release his official car hisresidential telephone had been disconnected and that his family had been setasunder, all because of his reliance on the presentation that Annex A was validMr. Mono remarked that these mattes had been raised by the appellant for thefirst time at this stage and he submitted that they shouldbe ignore., In allfairness to the appellant however he did mention termination of salary even atthe trial but the learned judge had said that was a development arising from thefact of his retiament and it occurred long before he filed the application. We377

agree with the learned judge and the same could be said of the other detrimentalmeasure. But apart from that we wonder whether those measures would nothave been taken evenunder Annex D. As a matter of fact the measuresincluding threatened eviction from his (appellant’s) official residence persistedand hence his application for an order of a stay of execution before MAPIGANOAg. J.A. We asked the appellant if he had been originally issued with Annex D.1his position would have been different. His answer was that if Annex D.1 hadbeen given to him first he would have only surrendered the functions of a judgebut not the benefits for he would have remained a public servant. We shall dealwith this point when we consider the cross-appealJust as was the learned Judge we are satisfied that the third requirementessential for estoppels to take effect does not existThe appellant concede that estoppels does not lie against a stature but quick toadd that is so only in a proper case. He went on to say that estoppels cannot beinvoked to stop the performance or the performance in a prescribed mannerwhere a law enjoins performance of a duty and prescribes the mode of itsperformance. He stated that it was a matter of having or not having jurisdiction ofcompetence or incompetence on the part of the one purporting to perform thestatutory duty. He submitted that where the performer has jurisdiction thenestoppel cannot apply. However where the performer lacks jurisdiction thenestoppel can be invoked. The appellant contended that in this case the presidentwas bound by the advice of the commission and could not alter it as evidencedby the two differing letters: Annexes A and D.1378

We again agree with the learned judge that all that the Executive did was ocorrect the error glaringly obvious on the face of Annex A and that cannot besubjected to estoppel. As for the last point of the appellant regarding thealteration of the advice of the commission of judges we shall deal with it at theappropriate juncture.The appellant also contended strongly that Annex D.1 was inadmissible underSection 32 C (3) of the Evidence Act, 1967 He said that where his applicationpresupposed that existence of Annex A the respondents through Annex D.1denied that So the existence of Annex A, he contended was a fact in issue As theauthor of Annex D.1 was person interested in the proceedings he argued thatletter 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. Hewas of the view that to quote his own words the provision deals with statementwhich having regard to the time of their making and content, may be seen astending o influence the decision of the Court on disputed facts. The learned judgethen went on the examine Annex D.1 and formed the opinion that it did not dealwith facts but sought to straighten up a legal issue namely, termination in publicinterest or removal under Article 110 (7) of the Constitution He then came to theconclusion where a statement does not tend to establish a disputed fact and/orwhere its import is on matter of law such a statement would not be excluded bySection 34 C (3)Now the appellant avers that Annex D.1 did not address itself to a point of law asthe learned judge erroneously held but to a point of fact. The appellant point out379

that the two Annexes A and D.1 talk of two different things; namely retirement inthe public interest and removal. He went further to observe that a copy of thereport of the commission is required to establish which of the two letters isauthentic, He submitted that this is a question of fact and not of law and soSection 34 C (3) does apply. Mr. Mono simply reiterated that the import of AnnexD.1 is not factual but legalWe have no doubt at all in our minds that the issue all along has never beenauthenticity but legality. The appellant did not file this application to challenge thegeniuses of Annex A in communicating the recommendation of the commissionbut to challenge its constitutionality The respondents concede though very latethat annex A was ultra vires the Constitution and issued Annex D.1 partly towithdraw Annex A and partly to straighten up the legal position. So we cannotfind any fault with LUGAKINGIRA J. in his holding that Annex D.1 was not factualbut legal and therefore Section 34 C (3) of the Evidence Act, 1967 is inapplicableThe appellant also faulted the learned judge for failing to assess the weight to begiven to Annex D.1 since the two Annexes (A and D.1) were made with a gap ofsome nine months between them The appellant repeated his allegation that bothletters purported to convey the recommendation of the commission and yetspoke of two different things and that therefore one of them must be false andthat the learned judge had to determine that issue in order to decide what weightshould be accorded to Annex D.1 as required by Section34 C (6) of the Evidence Act, 1967380

However, the learned judge skipped that not because of oversight or misdirectionbut 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 beAttaché to a statement rendered admissibleAs evidence by this section .. (emphasis provide)We ask whether Annex D. 1 was admitted as evidence under that section Theanswer is obviously no. The appellant strove unsuccessfully to us that section toprevent its admission. It has never been his desire that it be admitted under thatsection. We have upheld the learned judge in his finding that Section 34 C is notat all applicable. We fail to see how that section can regulated the weight to beattached to Annex D.1We are in total agreement with LUGAKINGIRA J that Annex D. 1 wasadmissible it was properly admitted and that it effectively replace Annex A thesubject of the application before the High Court, thus rendering the applicationsuperfluous. The preliminary objection was properly upheld. This disposes of theappeal but we shall consider the other grounds since they attack other findingsby the learned judge and them there is the cross-appeal.There are two grounds which we think we can dispose of together these aregrounds five and sex which the appellant make in the alternative. In ground fiethe appellant alleged that there wee two pieces of advice gives by thecommission as evidenced by annex A and D.1 he than went on to submit thatwas wrong since the commission after it had made the first advice becamefunctus office Mr. Mono countered that by refuting the allegation of two pieces381

of advice and asserted that there was just a wrong communication of the advicewhich was later corrected.We are unable to see why the appellant makes this contention. The pure factualsituation is that only Annex D.1 refers to the Commission Annex A does not evenmention that commission but merely refers to the directions of the president. Thatwould support the contention of Mr. Mono that there was a faulty communicationrather than that there were two different pieces of advice.We honestly do not think that should detain us and particularly after we havebeen 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. Theappellant questions the competence of the Executive to alter the advice of thecommission. Just as with ground five there is not even an iota of evidence tosupport the allegation of such alteration of the advice of the commission Anotherground which has no merit is ground twelve. The appellant has attacked thelearned judge for having introduced the novel procedure of filing statementswhich ushered in the preliminary objection that disposed of his application As wehave already narrated the learned judge wanted to hear submissions from bothsides on that matter. The next day however instead of submissions there was anagreement between both sides to file statements and the appellant had in factgone armed with his statement. The appellant cannot bow be heard to complainand this is especially so as the learned Chief justice has not as yet formulatedany rules of procedure to govern proceedings for prerogative writs and so he382

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 togive him a copy of the report of the commission Mr. Mono began by opposingthat complaint but after some verbal tussle he concede that the appellant wasentitled to a copy of the reportArticle 110 of the Constitution does not expressly require nor prohibit thecommission or the president to provide a copy of the commission report to thejudge under inquiry. While we are attracted to the appellant submission that if athing had not been specifically prohibited by a statute then it is allowed wehesitate to formulated a principle that broad. We are however of the view thatreleasing a copy of the commission’s report to the appellant in this case wouldnot have been unconstitutionalIn criminal trials an accuse persons can apply for a copy of the judgment andmay even want it to be in his own language and section 313 of the Criminalprocedure Act 1985 decrees that it shall be given to him without delay Admittedlythis was not a criminal trial. However it was a quasi-judicial criminal inquiry. Wewere given to understand by the appellant that there was a panel of threecommissioners all of whom were judges a prosecutor that the appellant defendedhimself though nothing would have stopped him from retaining a counsel and thatwitnesses were summoned and subjected to the same procedure as the oneunder the criminal procedure Act 1985 in trials In such circumstances would itbe irregular to adopt the said section 313 and deliver a copy of the report to the383

appellant in response to his repeated requests? We are convinced that it wouldnot beApart 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 makeprovisions(a) that every person shall when hisfights and obligations are beingdetermined be entitled to a fairhearing by the court of law or otherbody concerned and be guaranteed theright of appeal or to another legalremedy against the decisions ofCourt of law and other bodies whichDecide on his rights or interestsFounded on statutory provisionsIt is clear that the commission is a sort of body referred to here If a right of appealor another legal remedy against the decision of such body is envisaged thenobviously a copy of its report ought to be made available to the subject of therelevant proceedings otherwise we fail to see how he could possibly challengethe decision.We want to make it abundantly clear here that we are not saying that theappellant could appeal or seek another legal remedy under Article 13 (6) (a)against the recommendation made under Article 110 (6) by the commission. Weknow he made a submission to that effect at one stage in support of his claimsfor a copy of the report. He told us that the report could be a subject of judicialreview However that issue has not strictly been before us and we do not want384

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 isto use Art 13 (60 (a) as further support to our view that the appellant had a rightto a copy of the report of the commissionThe question is who is to supply that copy of the report? The learned judge hadsaid: As regards the Commission report the commission was by law required toreport to the president only. We agree with the appellant that he had neversuggested that the Commission had to report to him as well. He had merelyrequested for a copy. The request was initially to the judiciary but in our opinionthat was not the department which had to send a copy of the report to theappellant. The duty lay with the Executive.The last ground of appeal we have to consider is the fourth ground which isconcerned with the meaning of removal from office. This is also the subjectmatter of cross-appeal by the respondentsThe appellant claimed that the term remove is ambiguous. However, he cameround the agree that remove or remove is not at all ambiguous But what followsafter one has been removed is uncertain as the constitution makes no specificprovision for when he discussed very seriously the two concepts of removal fromthe office of judge and retirement in the public interest385

The learned judge said that there was a mistaken albeit innocent belief thatremoval form office and being retired implied the same thing. He went further toconsider Art. 110 (5) (6) and (7) and found that they talked of removal from theoffice of a judge only but not the termination of appointment in the public servicegenerally lie then made reference to the meaning of the expression office in theservice of the Government of the United Republic as given under Art 151 (1) andcame to the view that [to] be retired form the public service is therefore a widerstep and a much more serious affair than merely to be removed from a particularoffice like the office of a judge which Art. 110 (7) is all aboutMr. Mono challenged that. He submitted that retirement from public service is notwider in scope or more serious than removal from the office of judge. In fact thelearned Senior State Attorney went further to suggest that the reverse is true. Hesaid that retirement from public service is a respectful termination of employmentAs for removal he said the consequence would depend on the cause If removalis for mental or bodily infirmity, then it would normally be retirement but if it is formisbehavior then it would be summary dismissal Mr. Mono suggested that theappellant falls under the latter category and that therefore he cannot fit anywhereelse in the public service Mr. Mono submitted that consequently the appellantgoes as he came. Whatever Mr. Mono meant by that we understood him toimply that the appellant goes away empty handed386

As we have already intimated the term remove is not at all ambiguous But it iswhat follows next after the removal that is not clear. Could such a person beemployed elsewhere within the public service? Could he be given terminalbenefit or should be go as he came?Peoplecome to the bench from various backgrounds Some wereCommissioners for lands Resident Magistrates Directors of public prosecutionsor state attorneys army officers professors or private practitioners. Suppose onefrom these categories is removed from the office of judge or a justice of Appealdoes he go back where he came from or is that door also closed to him? Does aperson like the appellant who became a judge on promotion from the magistracy:remain a public servant capable of being employed in other departments uponhis removal from office of judge or must he be regarded as havingbeendismissed from the dismissed from the public service? These are troubling butvery pertinent questioner Presumably it was in an attempt to find answers tothese troubling questions that the respondents believed they had found a solutionin coining the objectionable phraseology removed from the office of judge byretirement in the public interest. Under the pensions ordinance retirement in thepublic interest attracts terminal benefits The concept of removal from the office ofjudge has yet to be provided for by law and until such time the positions notclear. That could be undesirable depending on the cause of removalThis is why we said earlier that the respondents and even the learned ChiefJustice ought to have been aware of the technical unconstitutionality of Annex A387

ut that they might have thought that was in the best interest of the appellant. Sothe gross delay in rectifying that and the issuance of Annex D. 1 seen in this lightwas not at all in bad faith That letter illustrates the dilemma that the authoritiesmust have faced in dealing with the removal of the appellant from office. Thuswhereas Annex A talked of the appellant being entitled to a pension for his publicservice up to 13 th may 1991 Annex D.1 is conspicuously silent on that point. Nowonder the appellant strenuously strove to have it rejected.With all the good intentions of the respondents the method adopted was not inaccordance with the law. They should have clearly removed the appellant fromthe office of judge under Art. 110 (7) and then they should have gone on to saythat for the purposes of terminal benefits the removal from the office of judge wasto be taken as retirement in the public interest. This they could have said either inthe 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 110accommodates a lacuna which ought to the redressed by legislation. This maybe done by the legislation either providing a catalogue for consequences ofremoval or requiring every Commission appointed under Article 110 (6) to makerecommendations as to the consequences of removal if it recommends suchremoval .We do not agree with the learned judge that removal fro the office of judge is lessserious than retirement from the public service we agree with Mr. Monocontention that the causes for the removal would determine the consequences of388

the removal. But we reject the earlier contention by Mr. Mono that removals moreserious than retirement in the public interest and that it is tantamount todismissal.Our opinion has the support of Article 144. That article deals with the removal ofcontroller and Auditor General He is another official whose security of tenure isjealously protected. His removal appointed by the president to advise him on thequestion of removal. The chairman of the tribunal and at least half the membersthe minimum and number of whom is two are required to be judges or personsho hold or persons who have hold office as judges of the High Court or justice ofAppeal in any country which is a member is a member of the commonwealth ofNations. The president is bound by the advice of the Tribunal. Then clause (6) ofthat article providesA person who holds or has held theOffice of Controller and AuditorGeneral shall not be eligible forAppointment to or to act in any otherOffice in the service of the unitedRepublicIs it an oversight that Article 110 does not contain such a clause? We think not.The reasons for an ex-controller and Auditor General beingprohibited frombeing employed in any other office in the service of the united Republic are notdifficult to see. Such officer would have proved and queried the accounts of thedepartments of the Government in the course of his ser ice. Obviously if suchofficer is appointed to any other office in the public service this will not only389

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 hisremoval from the office of judgeWhat are the consequences of the removal of the appellant as communicated inAnnex D.1 to him? That is a difficult question. The report of the Commission wasnot part of the record of appeal so we do not know what led to his removal andtherefore it is not easy to determine what the consequences should be. Howeverwe infer from the abortive efforts of the respondents which we have describedabove that they were willing to treat the appellants as if he had been retired inthe public interest. Thus they were ready to give him his pension. It follows thatthe nature of the reasons for his removal was such that he ought not to lose hispension We therefore give the appellant the benefit of the doubt and we orderthat he be given his pension with effect from 13 th May 1991 the effective date ofhis removalThere is one other issue on which we wish to express our feelings and that is themanner I which this whole matter was handled According to the appellant thewhole matter starred with an announcement on Radio Tanzania Dar es Salaamon 13 March 1990 that president Mwinyi had suspending the appellant from hisoffice of judge on ground of suspected corruption and that he had appointed acommission to investigate the matter. This announcement was also carried by390

the Daily News and Uhuru newspapers on 14 th March 1990 According to theappellant the commission to investigate the allegation was not appointed untilMarch 1991 a year later.If this contention is true then the purported suspension was clearly unlawfulAccording o Article 110 (8) of the constitution a judge is only suspended fromperforming he functions of his office after the question of removing him fromoffice has been referred to a commission appointed until March 1991 the March1990 purported suspension was unlawful It is most regrettable that such anirregularity was allowed to occurThe tardiness with which the question of the appellants removal from office wasdealt with after the commission’s recommendation also leaves a lot to be desiredApparently the Commissionsubmitted its recommendation regarding theappllant’s removal from office before the 13 thMay 1991 the appellant wasinformed of the decision on 24the May 1991. The appellant was informed of thedecision on 24 th May 1991 vide Annex A. on 23 rd July 1991 the appellant wroteto P.S. (Estabs) to protest the decision Annex B.1 to this the P.S. (Estabs)replied on 6 thAugust 1991 regretting he had nothing to add. However, on 25 thSeptember 1991 the appellant wrote again this time to the Chief Secretary StateHouse reiterating his dissatisfaction with the decision. To this there was noresponse until 31 st October 1991 The response was to the effect that the matterhad reached its finality and that the Government would not entertain any morecorrespondence on the subject However on 21 stFebruary 1992 the Chief391

Secretary wrote to the appellant Annex D in which he sought to replace thecontents of the letter of 24 may 1991. By this date the appellant had alreadyinitiated proceedings in CourtWe feel that this matter could have been attended to in a more expeditiousmanner and could have been handled more carefully considering that it involvedthe very livelihood of a public official and a very senior official at that a judge ofthe High Court we can only express our hope that in future the strict letter of theconstitution and the law will be followed and that matters of that sort will behandle more diligently.That not withstanding the appeal is dismissed the preliminary objection wasproperly 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 longera person in the .. of the united Republic for 13 th My 1991 but that he is tohave his pension with effect from that date we make not order as to costs It is soorderedDATE ARUSHA THIS 25 TH day of October 1993A.S.L. RAMADHANIJUSTICE OF APPEAL392

M.D. BOMANIAg. JUSTICE OF APPEALJ.L. KANYWANYIAg. JUSTICE OF APPEALI certify that this is a true copy of the originalE. J. NYAMASAGARADEPURY REGISTEDIN THE OLCH OF TANZANIADAR ES SALAAMCIVIL APPLICATION NO. 68 OF 1994393

SYVESUER .210 ... APPICATIONSVorsusTHE UNIVERSITY OF DAR ES SALAAM.... RESPONDENTR U L DI N G SKYANDO j.The application has been brought by students who were in the first year of theFaculty of University of Dar es salaam but were discontinued from theirstudies for next was oiled absenting themselves from an examination It is anapplication for an order of Certiorari to remove to the did court and quash thedecision by the respondent to permanently dismiss the applications from theUniversity of Dar es salaam and an order of mandamus to compel therespondent to allow the applications to return to the University of Dar es salaamcampus to continue with their studies There is also a proper for costs of theapplication and any other relief(s) which this court may deem proper and just to..The application is made under section 2 (2) of the judicature and Application oflaws ordinance Cap 453 and Section 95 of the Civil procedure code 1966 Section17 (2) of the law reform (tatal) Accidents and misollaneous provisions )ordinance (amendent ) act 1968 (Aot No. 25 of 1968) and any ending provision ofthe law it is by394

Both parties are represented by counsel the application areIN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMMISC CIVIL APPLICATION NO.1/15TANZANIA AIR SEVICES LTD ..APPLICANTVERSUS1 MINISTER FOR LABOUR RESPONDERTS2. ATTORNEY GENRAL3. COMMISSIONER FOR LAROURRU L L I N GSAMMATTA J.KIn one of the his well-known books The Road to justice Sir Alfred Denningdiscussed the importance of a judge giving reasons for his decision. He states asfollows at p 29The judge must give reasons for his decision for by so doing he gives proof thahe has heard and considered the evidence and arguments that have beenproduced before him on each side and also that he has not taken extraneousconsiderations into account. It is of course true that his decision my be correcteven though he should give no reasons for it or even though he should give noreasons for it or even give a wrong reason but in order that a trial should e be fair395

it is necessary not only that a correct decision should be reached but also that itshould be seen to be based on reason and that can only be seen if the judgehimself states his reasons Furthermore if his reasons are at fault then they afforda basis on which the party aggrieved by his decision can appeal to a higher courtNo judge is infallible and every system of justice must provide for an appeal to ahigher court to correct the errors of the judge below. The cry of Paul I appealunto Ceaser represents a deep-seated human response. But no appeal canproperly be determined unless the appellate court knows the reasons for thedecision of the lower court For that purpose if for no other the judge who tries thecase must give his reasonsIn the application now before me I have to determine whether in making hisdecision on a reference to the Minster for labour (the minister) under s.26 of thesecurity Employment Act 1964 cap 574 (that act) That labour commissioner (thecommissioner) who exercises powers delegate4d to him by the minister unders.44 is under obligation I law to give reasons. The application by way of chambersummons is for an order of certiorari to bring up and quash to labourcommissioner’s decision by which he confirmed a decision reached y theconciliation Board of Dar es salaam that the respondents whose services with hisemployer the applicant company were terminated be re-instated The reference tothe minister consisted of a two-page document in which the Board ‘s decisionwas strenuously attacked . The commissioner’s decision which wascommunicated to the applicant company on Form 8 was couched. Whentranslated in the following word IN ACCORDANCE WITH SECTION 26 (2) OF396

THE SECUTITY FO EMPLOYMENT ACT 1964 I CONFIRM THE DECISION OFTHE CONCILIATION BOARD THE EMPLOYEE SHOULD BE RE-INSTATED “Not a single reason was given for this decision section 27 (1) of the Act makes adecision of the minister under s. 26 final and conclusive. The subsection reads asfollows27 – (1) The decision of the minister on a reference to him under section 26 andsubject to any decision on a reference to the minister there form the decision ofa Board on a reference to it under this parta. shall be final and conclusive andb. shall be binding on the parties to the reference and the relationshipbetween the parties in consequence of the matters in respect to which thereference was made shall be determined accordingly andc. may be enforce in any court of competent jurisdiction as if it were a decreeMr. Kalunga for the applicant company strenuously attacked thecommissioner’s decision. He contended that the failure by the commissionerto give reasons for the decision makes it a nullity According to the learnedadvocate although in the past the decision –maker had no duty under the lawto give reason for his decision the trend in some common law jurisdictionsnow is to establish a right to reasons He went on to submit that topreventdecisions based on caprice or mala fide a right to reasons should berecognized Mr. Mwidundam Senior state Attorney, representing all the threerespondents, opposed the application. Quite rightly, he drew my attention tothe fact that there is no provision in the Act imposing a duty on the minister or397

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 presentapplication the applicant should have sought from the commissioner reasonsfor his decision. Mr. Mwidunda urged me to dismiss the applicationWhat is the law on this matter? There is under the common law, no generalrequirement that public authorities should give reasons for their decision: seeBreen 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] 1W.L.R. In former case LORD DENNING M..R. posed and proceeded toanswer the question whether a statutory or domestic body is bound in law togive 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 reasonsfor his decision has been criticized by professor H.W.R wade in his bookAdministrative law 6 th ed (low-priced edition), at p. 548 where he states asfollows: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 hemay be deprived of the protection of the law. A right to reasons istherefore an indispensable part of asound system of judicialreview. Natural justice may provide the best rubric for it since thgiving 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 English398

administrative law as seriously as the absence of any generalobligation upon public authorities to give reasons for their decisions’And at p. 934 of the same book, the learned author states Reasoneddecisional are not only vital for the purpose of showing the citizen that heis receiving justice: they are also a valuable discipline for the tribunal itself[F] or decisions generally a statement of reasons is one of the essentialsof justice”The importance of giving reasons for a decision is also discussed byGeoffrey A. Flick in his book Natural Justice Principles and PracticalApplication in which at p. 87 –88, he says: First, the requirement of areasoned opinion provides considerable assurance that the decision willbe better as a result of its being properly thought out, Second reasons willenable a person who has a right of appeal to determine whether he hasgood grounds for an appeal and will have to meet if he does decide toappeal. In this regard, if an administrative determination is not the result ofa unanimous vote of the decision makers, the minority opinion may be ofconsiderable value to an unsuccessful party Third, reasons will make atribunal more amenable to the supervisory jurisdiction of the courts andwill ensure that tribunal is acting within its powers that is to say reasonswill inform a person why a decision has been made and will makemanifest any errors o law. Fourth, reasoned opinionswill encouragepublic confidence in the administrative process. As was noted in a leadingEnglish case, even though a decision may be perfectly correct, if a party399

was not given reasons he was left with the real grievance that he was nottold why the decision had been In re Poyser and Mills Arbitration [1964] 1Q .B 467,478. The exposure to public scrutiny and criticism is healthy Fifth, reasons act as a check on the exercise of discretion and expertiseand will ensure that a tribunal has performed its functions of consideringrelevant factors (Davies v price) [1958] 1 w.l.r 434 and will preventarbitrary action: Donaldson v Board of Education of North Wildwood 320 A2d 857 (1974) Reasoned opinions also provide additional guidance tothose who advise parties as to their future conductI would add that in so far as natural persons are concerned,givingreasoned for a decision constitutes a recognition that the parties arerational beings. Should I, in determining the instant application, apply thecommon law as it now stand or should I apply it after modifying it? Thiscourt has under s.2 (2) of the judicature and Application of lawsOrdinance, Cap 453 power to vary that law so as to make it suit localconditions. Should I use that power in his matter? I think I should. Itseems to me that the interests of justice call for the existence, in commonlaw, of a general rule making it mandatory in matters of importance forepublic authorities, a term I use to include statutory and domestic bodies togive reasons for their decisions. But what are matters of importance? It isneither desirable nor possible to define that term. But certainly it should betaken to include all matters in which the liberty, livelihood or reputation ofthe individual is concerned or in which proprietary or pecuniary rights or400

interest are at stake. In any other situation the decision-maker should bebound to give reasons only if he is requested by a party to do so. Inreaching the view that in this branch of the common law variation isnecessary I have been greatly encouraged by the memorable words ofDENNING, 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, whichconferred similar power on the High court of East Africa to modify thecommon law, the learned lord justice said at p. 653The proviso says, however that the common law is to apply subject tosuch qualification as local circumstances render necessary. This wiseprovision should I think be liberally construed. It is a recognition that thecommon law cannot be applied in a foreign land without considerablequalification. 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 thetough character which it has in England. It will flourish indeed but it needcareful tending. So with the common law. It has many principles ofmainifest justice and good sense which can be applied with advantage topeoples of every race and colour all the word over but it has manyrefinements which are not suited to other folk. These off – shoots must becut away. In these far off lands the people must have a law which theyunderstand and which they will respect. The common law cannot fulfill thisrole except with considerable qualifications The task of making these401

qualifications is entrusted to the judges of these lands. It is a great task. Itrust that they will not fail therein.Some people may argue that varying the common law in the manner Ihave indicated would result in placing more burden on the already busydecision – 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 reasonswould impose additional administrative bidden and might well be an unduedrain on the resources of an agency Such burdens may even result in thegiving of canned reasons. Second reason may hinder the manner in whicha discretion is exercised and it may be thought that the exercise of somediscretion should be unreviewable by the courts But consideration ofadministrative expediency should not mitigate principles of fairness andfew, if any discretion should be unreviewableIn my considered opinion it is a matter beyond rational controversy that toborrow the language of the learned author in the book just citedfundamental requirement of fair play requires that6 parties should now atthe end of the day why a particular decision has been taken I think it isintolerable in a democratic society that the law should allow a decisionmaker to whom an appeal or reference is made to make his decisionwithout giving reasons why he has reached that decision The giving ofreasons said Lord Denning M.R in Breen’s case supra (at p.191) is one of402

the fundamentals of good administration Bearing in mind the vastdifferences which exist between our people and those of England in bothsocial and cultural fields and especially their knowledge of and attitudetowards decision-making public bodies and taking into consideration thecomparable educational backwardness of the majority of our people I thinkit is in the inters of justice and fair play that the common law relating to thegiving of reasons for decisions should be qualified in the manner I haveendeavored to indicate In my considered opinion, a duty to give reasonsand a right to them should be recognize by our law and treated as beingof decisive importance in administrative justice Although a decision of theminister of commissioner under s.26 of the Act is according s. 27 (1) citedsupra, final and conclusive that does not mean the decision is not subjectto review by courts That remedy is not excluded by those or similar wordssee Healey v ministry of Health [1957] 1 All E.R 796 Taylor v NationalAssistaance Board [1957] 101 and Tehrani and Another vi Rostron [1972]1 Q .B No appeal will lie against decisions protected by such words orphrases, but an aggrieved party may come to this court and ask forprerogative orders Mullity of a decision is not protected by words final orconclusive. It follows as day follows night, that the decision which theapplicant company has complained against in the instant proceedings fallsunder this court’s surveillance it should perhaps also be pointed out thatnether the failure not the refusal of a decision-maker to give reasons for403

his decision is a sufficient exclusion of the court’s surveillance see padfield v minister of Agriculture, Fisheries and Food [1968] A.C. 997I have sufficiently demonstrated. I hope why I am of the opinion that thecommissioner failure to give reasons for his impugned decision is aserious irregularity which makes that decision a nullity in law. An order forcertiorari, like other prerogative orders is a discretionary remedy. In myconsideredbeing exercised in favourt of the applicant company. Mr.Mwidunda submitted that certiorari cannot be used as an appeal. I agreeBut is a rule of common law that where a determination by a tribunal hasbeen quashed by certiorari, the court may in its concretion., refrain fromawarding a mandamus to direct the tribunal to predetermine to matter ifsatisfied that the tribunal will duly observe the law upon a rehearingnotwithstanding that the court could have effectively enforce an order ofmandamus see Halsbury’s laws of England vol..I para 125 page 135should I invoke that discretion an confine myself to quashingthecommissioner’s decision should I notwithstanding that there is not suchprayer in the application make an order of mandamus directingpredetermination of the reference?I confess that this question hasexercised y mind quite considerably but in the end I have reached a clearopinion on it. Quashing the Commissioner’sdecision and letting thematter lie there will be unsatisfactory to the applicant company as thedecision of the conciliation Board complained against will still be in force itseems to me having given the matter careful attention that an order of404

mandamus should be made but it must be directed to the minister himselfand 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 thefunction imposed and the powers conferred u[on him to hear and decidereferences to the commissioner. It is my view that delegation does notmake it legally impossible for this court to make an order of mandamusdirecting the minister to determine the applicant company’s reference. Thelaw is that delegation does not imply a parting with powers by the personwho grants the delegation see Huth v Clarke (1890) 25 Q.B.D 391Gordon, Dadds & co. v Morris and others [1945] 1 All E.R. 616 andmanton v Brighton Corporation [1951] 2 All E.R 101 In Huth’s case supraLODR COLERIDGE C.J said at pp.394 – 395But delegation does not imply a denudation of power and authority theword delegation implies that powers are committed to another person orbody which are as a rule always subject to resumption by the powersdelegating and many examples of this might be given. Unless therefore. Itis controlled y statute the3 delegating power can at any time resume itsauthority. And at the latter page WILLS J said among other thingsDelegation as the word is generally used does not imply a parting withpowers by the person who grants the delegation. But points rather to theconferring of an authority to do things which otherwise that person wouldhave to do himself. The best illustration of the sue of the would is affordedby the maxim Delegates non protest delegate as to the meaning of which405

in Broom’s Legal maxims under the law of contracts: it is never used bythe legal writers, so far a I am aware as implying that the delectatingperson parts with his power in such a manner as to denude himself of hisrightsWhile I do not cast any aspersions upon the ability of the commissioner todeal with the reference with an impartial mind I feel that for justice not onlyto be done but also to be seen to be done the reference should now bedetermined by someone else the minister himself. I entertain no doubt thatI have inherent power to make the order of mandamus notwithstandingthat there is no prayer for itBefore parting with this application, I should like to make it perfectly clearthat throughout this ruling I have assumed,Without deciding that the conferring of ad judicatory powers upon theminister does not violate the constitution of the united Republic.For the reason I have given I grant the application for order of certiorariand hereby quash the commissioner decision confirming the decision ofthe conciliation Board The Minister for labour, the first respondentishereby directed to personally determine the applicant company’sreference to accordance with law as laid down in this ruling There will bean order for const against the respondents ’406

6. EXERCISE OF DISCRETIONARY POWERS1 Abdi Athuman & 9 others v DC tunduru& 3 othersconsolidated Misc. Civil cases No. 2&3 of 19872. Festo Balegele & 784 others v DSM city councilMisc Civil cause no. 90 of 19913. James Gwagilo v AG, Civil Case No. 23 of 19934. Mwakibete v Principal Secretary & AG HC at ArushaMisc. Civil Application No. 11 of 19925. Shekimweri v AG Misc Civil case No. 3 of 199IN THE HIGH COURT OF TANZANIA407

IT.VERSUS1. THE DISTRICT CONTISSIONEROF TUNDURU DISTRRICT2. THE DISTRRIC3. THEDESTRICT4. THE TOWN DISTRICTRubamaOn 25 th June 1987 while at Mninga Mbinga District I heard and grantedtwo application Misc. Application No, 4 of 1987 by six applicants namelyMohamed Ally Athumani, Adamu Husseni Shali Komba Ally Ahmed ElimiAdbi and Mohamed Omari against the his Advocate Mr. Mwingira ofMwingir and Company he was told that th decision to confiscate hidtrading license had been taken by the Regional of ones and securityCommittee. Mr. Iselen further submitted that this court the had no powersto confiscate or order confiscation of business LenienceMr. Mselen submitted that in the court in the first five applicants in theapplication before the namely Ally Athumani and Abdi the DistrictCommissioner of So District.Ni mategemeo yangu kwamba kwa kuwa utakuwa huru shughuli yeyoteya halali ya kukupa riziki yako utatakuwa ume kurudi nyumbanikwenu kwa hiari yako mwenyewe Endapo utashidwa kufanya hivyoitabdidi uondolewe kwa nguvu408

Mr. Mselem was at a loss to know under which law the DistrictCommissioner had taken his actions. He submitted that this decision bythe District Commissioner was arbitrary and unlawful far if the DistrictCommissioner purported to have acted under Cap. 104 the applicant didnot fall under the category of persons fit for removal as was requiredunder section 3 of the above mentioned Ordinance (Cap,104) All theapplicants were people with reputable means of livelihood none and beenconvicted any criminal offence and all were of the age that did not renderthem subject to control by other people. Further they had settled homeswithin the Town/District of longer The action by the District Commissionerof Songea therefore was in access of his jurisdiction even if one were tofind that the District Commissioner in ordering the removal of the fiveabove manned applications had been acting under Cap. 104 As for hadbeen issued to him. The reason given for the removal were to the effectthat the said applicant has no work in Songea and was suspected ofhaving illegal dealings in Government trophies. Mr. Mselem submitted thatthe applicant has reputable means of livelihood: had a farm, an hotel anda guest house. The last two businesses were licensed businesses. Hefurther submitted that Cap. 104 does not say that a person suspected of acriminal offence was liable for removal from a certain area. He concludedhis submission for the sixth applicant by stating that like in the case ofthane first five applicants the removal order that had been issued inrespect of the sixth applicant was arbitrary and unlawfulIn concluding his submission for the application, Mr. Mselem asked thecourt to find that a prima facie case had been established in respect of theapplicants 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 beused to remove the applicants to their homes should they fail to leaveSongea District by 30/6/97 and as the applicants if allowed by the courtwere going to be heard not earlier than 30 th June 1987 Mr. Mselem409

applied for an order of Temporary Injunction to refrain the DistrictCommissioner of Songea District from enforcing the removal ordersissued against the above mentioned six applicants requesting them toleave the District of Songea on or before the 30 th day of June, 1987 untilthe determination of the application for orders of Certiorari and Mandamusthat would be filed y the applicants with the court.In the case of Misc. Application No. 5 of 1987 ever and above the Affidavitby the counsel Mr. Mselem submitted that the four applicants in theapplication namely:Abdi Athuman Saidi Ally, Mohamed Athumani and LaliAthumani were all resident of Tunduru District. All the four applicants hadbeen in Tunduru District for considerable period of time and were engagedin lawful businesses which in some cases involved farming. He submittedthat all were Tanzanians. All these four applicant had applied for renewalof their business lioness for the year 1987/88 but that for me reasonablearound their application were refused by the District Executive District ofTunduru District. The grounds for refusing the application were not inconformity 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 ortheir business licences the first and the second applicants were servedwith removal orders issued by the District Commissioner of TunduruDistrict stating that they the applicants were undesirable persons. Theremoval orders specified that the applicants be out of Tunduru Districtbefore or by the end of Jun 1987. The District Commissioner of TundureDistinct did not specify any reason for their issuance. Mr. Mselemsubmitted that if leave to file for orders for certiorari and Mandamus wasgranted the said removal orders were going to be produced in court,orders said to have been issued undr Cap. 104 Mr. Mesle did howeversubmit that Cap 104 was not application in Tunduru District. In thealtepatic Mr submitted that should the court find cap. 104 For thatsection to be involved the persons to be removed must be that as ..410

under s. 3 (3) of Cap. 104 and none of the applicants fell under thincategory. Each had a settled home within the Tunduru District and eachwas 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. 104each of the applicants had never been convicted of any criminal offencehad lived in Tunduru District for considerable period of time they all havereputable means of livelihood Mr. Mselem smutted that the Districtcommissioner of Tunduru District had acted without jurisdiction. He furthersubmitted that the District Director of Tunduru District in refusing to grantLusiness Licenses to the four applicants had acted without jurisdiction andhe prayed that the court grant leave to the four applicant to file an order ofcertiorari to quash this decision and further that the applicants bepermitted to apply for order of Mandamus to compel the District Directorof Tunduru District to consider the applications by the four applicants forbusiness 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 enablethe four applicants be granted leave to apply for orders of certiorari andMandamus established. Subject to the counts decision to grant or refusethe said leave the applicants files and application for an order forTemporary Injunction to refrain the Tunduru District Commissioner fromimplementing or enforcing the removal orders intended to be conestedbefore the determination of the application if leave to file was granted. Mr.Mselem submitted that if the District Commissioner from implementing orenforcing the removal orders intended to be contested before thedetermination of the application if leave to file was granted. Mr. Mselemsubmitted that if the District Commissioner of Tundure District was notrefrained form enforcing his orders undue hardships would be caused tothe applicants 25 only few days remained before the time given to theapplicants to remain in Tundure District expired.Mr. Sengwaji appearing bothe for the District Commissioner SongeaDistrict and the town Director of Songea Town Council in Misc. Application411

No. of 1987 and for the District Commissioner Tundure District and theDistrict Executive Dirstor of Tunduru District in Misc. Application No. 5 of1987 submitted that the issues raised in the affidavits and by Mr.Mselem raised important matters of law for the court to investigate Is but that he had not been involved by the District Authorities ofSongea District and Tunduru District before the taking of the decisions bythe said District but that he found nothing now in the behavior of theDistrict officials in not involving the Attorney General’s Chambers on suchmatter as it has never been the pretior some officials in the District theCultivate a habit of involving Attorney general’s Chambers on importantmatter such as there Mr. Lengwaji submitted that he had had anopportunity of .. . Of the applicants and that he hadno doubt in his mind that the action being complained against asd set outabove and on which Mr. Msele bad submitted at length and with whichsubmission he Mr. Sengaje associated himself did not follow the laiddown/procedures. He submitted that looking at authorities quoted by Mr.Mselem he would say that was a proper case for the doubt to permit thesix Songea applicants and the four Tunduru applicators to file for ordersfor Certiorari and Mandamus/ Bearing in mind that removal orders issuedto the tem application were enforceable in a few days time sand probablybefore the hearing of the application for orders for Certiorari andMandamus if the application before the court was granted, he felt thatissuance of Temporary Injunction Orders to refuin the Districtcommissioner of Songea District and the District Commissioner ofTunduru District from enforcing he respective issued removal orderspending 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 theaffidavit and his affidavit in respect of the Misc. Application No. 5 of 1987strengthened by his verbal representations in court in support of the412

affidavit and the representations of Mr. Sengwaji who had appeared onhehalf of the District Commissioner of Songea District and the TownDirector of Songea Town Council in respect of Misc. Application No.Application No. 4 of 1987 and for the Desticect Commissioner of TundureDistrict and District Executive Director of Tunduru District Council inrespect of Misc. Application No. 5 of 1987 and bearing in mindconstitutional rights of the applicants were in issue I found that prima faciecases to enable the tem applicants be granted leave to apply for orders ofCertiorari and Mandamus made out. Accordingly necessary leave for theapplicants to apply for order of Certiorari and Mandamus were granted. Ialso granted the applicants applications for issuance of TemporaryInjection against the District Commissioner for Songea District refraininghim from on forcing removal orders issued against the six applicant’s thatrequired them to be but of Songea District on or before 30 th day of June,1987 until the determination of the applications for orders for Certiorariand Mandamus permitted to be filed with this court by the applicants. Alsogranted was the application for an order of Temporary Injection to refrainthe District Commissioner of Tundure District from enforcing the removalorders issu against Abdi Athumane and Saidi Ally requiring them to leavethe District of Tunduru on or before the 30 th day of June, 1987 until thedetermination of their application for orders for Certiorari and Mandamuspermitted to be filed with this court by the applicantsOn 8 th of July, 1987 this court started hearing the cases for theapplications The application filed in respent of the six applicants inSongea District against the District Commissioner of Songea District andthe Town Director of Town Council Songea and applications by the fourapplicants against the District Commissioner of Tunduru District ExecutiveDirector were, for convenience, consolidated. Nine witnesses testified forthe applicants and two for the respondents.413

Mohamed Ally Athumani P.W.l, testified that he was a Tanzania andMgunya by tribe. He has been in Songea Town from 1970 selling fish atTunduru Newala Masasi and Songea up to 1980 when he switched intoHotel business in 1982. he had first opened his hotel around Maji MajiStadium called Mwambao Hotel up to 1984 when he changed the nameto Bajuni Hotel now situated at Majenge Co he mentioned that he hadbeen running this hotel in accordance with the law and that he had been alaw abiding citizen loyal to the Government and to the party. MohamedAlly Athumani PWl, further testified that before his business licenseexpired on 30 th April, 1987, he had applied for its renewal but hisapplication for business licence was refused sim;u because he was aMgunya by trie, He had been told at the Town Council that no businesslicences were going to be issued to Wagunya andWasomaji: no other reason apart from this for the refusal of the businesslicenc was given to him nor was it elaborated to him as to why Wagunyand wasomaji were isolated for this treatment . Dissatisfied by this replyhe went to see the District Commissioner of the Songea District to whomhe complained about the treatment meted to him. The DistrictCommissioner for Songea District advised him to appeal to the. Regionallevel as he ( the District Commissioner) was not a final authority an thatmatter. PWL stator that in conformity with this advice, he appealed to theAppeals committed that dealt with trading licences His appeal wasrejected no reasons was given for the rejection. All that was stated in therejection letter Ref. No. TO/SO/A.1/10 dated 13 th June, 1997 andproduced in court, admitted and mixed as exhibit P.1 wasRufaa yako kutaka upewe leseni ya biashara kwa kipindi cha 1987/88imekataliwaFollowing receipt of this letter (exhibit P.1) P.W.1 received a letter from theDistrict Commissioner of Songea Ref. No. D.0/T.30/5/Vol/IV/55 dated414

17 th June 1987 requiring him to leave Songea by or on 30 th June 1987. Asall the six application in the application covering Songea District receivedsuch a letter and as this court will have to make a decision whether or notthis type if letter was Removal Order talked of in Cap. 104 this latterwhich was produced in court admitted and marked exhibit P.2 is hereunderreproduced in fullOFISI YA WAZIRA MKUU NA MAKAMU WA KWANZA WA RAISMKOA WA RUVUMAWA WILAYAOFISI YA MKUUS.L.P. 1SONGEA,Kumb.Na.DAO/T.30/30/5/Vol.VI/53 17/6/1987Mohamed A. Athumani,S.L.P 17,SONGEAYah: RUFAA YA KUTOPEWA LESENI KIPINDICH: 1987/88Tafadhali husika na somo hilo hapo juu.2.Kuto na kukataliwa rufaa yako ya kutakda upewe leseni ya biashara kwakipindi cha 1987/88 nakutaka uwe umemaliza shughuli zako zote zinazohusubiashare yako ifikapo tarehe 30/6/87.3. Mnamo tarehe 1/7/87 kama shughuli zako za biashara utakuwa badounaziandeleza itabide ulazimishwe kuzifunga na hutua za kisheria itabidizichukuliwe dhidi yako.4. Nimategemeo yangu kwamba kwa kuwa utakuwa huna shughuli yoyote yahalali yakukupa riziki yako utakuwa umecondoka kurudi nyumbani kwenu415

kwa hiari yako mwenyewe Endapo utashindwa kufanya hivyo itabidiuondolewe kwa nguvu.(M.I .)MKUU WA .SONGEAMakala Mkuu wa MkoaS.L.PSONGEAMkuu wa Polisi (W)SongeaMkurugenzi wa MjiSongeaMohamed Abdi MohamedunahusikaOld Dilux Hotel NaSongeaHukufanya rufaa lakini na wewe piakifungu cha 2,3, na 4 cha barua hiiElimi Hotel,Ruvuma Hotel,Songea.Afisa Biashara (M)SongeaKamanda wa Polisi (M)Songea.Afisa Usalama wa Taifa (W)416

SongeaMohamed Ally Athumani now 54 years old and has now been in Songea for 17years was in the above mentioned letter told to go home where? The letter didnot indicated. He is marred and has sex children. He himself when under cressexamination had stated that he was born at Mafere, Mudeza |District Tanga,Region. This presumably was the home that exhibit P.2 envisaged. He hadhowever never been prosecuted – he had ho criminal record and he had neverbeen warned by any authority of having infringed any business regulation duringhis long business carrierAdam Hussain (PW2) like PW1 a Tanzania and Hotelier was refused a businesslicene for the year 1987,88 on the expiry of his business licence on 30 th April,1987 Unlike PW1 he was a Somali by tribe and has stated living in Songea Townin December 1985 He ran in accordance with the law a hotel called Sovi Hotelsituated 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 licencethat expired in April 1987 and sent it to the Songea Town Council. No licencewas issued to him despite his plendis to the District Commissioner SongeaDistrict and other . He was told that he being a . No business licnce wasgoing to be issued to him and that if hi had any question on that matter he hadbetter fo and see the District Commissioner of Songea District. He went to seethe Distict Commissioner as he had been directed and the D.C retreated thereply that he P.W.2 had received earlier on from the Trade Officer Town CouncilSongea. He wrote a letter to the Distinct Commissioner produced in this courtand marked exhibit P.5 requesting that he be grated a business licence He hadalready entered into long term commitments which had involved heavyexpenditure. I quote this letter in full for reason that would came apparent in duecause. The letter reads:-417

Adam HusseinS.L.P 85 Tel 470Songea11/5/87Mkuu wa WilayaS.L.P 1,SONGEAYAH MALALAMIKO (MAULIZO)JUU YA LESENIYA BIASHARA YA HOTEL YA MWAKA 1987Husika na kichwa cha habari hapo juu.Napenda kuleta barua hii kwako kwa kuomba nifikiriwe kuhusu leseni yaBiashara ya Hotel. Nakumbuka tarehe 8/5/87 nilifika kwakp kuangalia fomuyangu ya Biashara ulinijibu kuwa leseni za WASOMALI zimekatiwa sababu yakukataliwa hukueleza .Pamoja na jubu hili mimi binafsi naomba uelewa shida au Ghalamu ambazonimeisha zipata mpaka sasa Nyumba ninayofanyia biashare napanga kwa kulipakwa mwaka mzima ambayo ni Shs 72,000/= Nimesha lipa. Kun matengenezo yanyumba kila msimu wa leseni nimeshafany si chini ya Shs 20,000/= mbali yavyakula nilivyp nilivy kuwa novyo ndani ys too ambavyo n shs 150,000/= Siohiyo tu niliomba leseni mpya kwa nyumba nyingene ambayo niliaomba kufunguaDUKA NA GUEST kodi ya nyumba nimeshalipa Shs. 84,000/= kwa mwakamzima na bado inadai marekebisho kama vile choo za KUVUTA na mambomengine madogo madogoKatika tatizo hili nomba Serikali inifikirie nitarudisha namna gani ghalama zotehizi.Ninaamini kuwa sijafanya kosa kinyume cha Serikali hivyo ombi langu utalifikiriavemaWako katika kujenga taifaADAM HUSSAINAdam Hussain PW2 received no answer to his compelling as well as sympathyerovoking letter quoted above Undaunted he wrote a letter to the appealsCommittee chairman asking that he be granted a business licence To this letterhe received a reply but in the negative. It was identical to the one that Mohamd418

Ally Athumani PW1 had received. He contacted the District Commissioner ofSongea District as advised in the last paragraphof this letter which wasproduced in court and marked exhibit P.4 he was given a letter identical to theone that had been given to Mohamed Ally Athumani and which had been markedas exhibit P.2 quoted in full above This letter was produced admitted and markedas exhibit P.5 The witness PW2 further testified that he had wished to be afarmer and he had applied for 2,000 acres of land and that he had received noreply to his application addressed to the District commissioner of Songea anddated 7 th April, 1987 He had followed up this application with enquires but he hadalways been told that the sitting that dealt with applications for land had nottaken place. He produced his application letter for 2,000 acres of land as anexhibit which was admitted and marked exhibit P.6. From his temporary traveldocument. No. 5510 which was produced for identification purposes andmarked ID.2 one finds that the applicant was born at Dodoma on the 29 thJanuary,1989.Athumani Shali PW3 by Mgunya tribe is a Tanzanian who has been living inMfaranyake area Songea Town form 1981 He has a wife and five children andruns a retail shop. He too stated that his business lecence produced in court foridentification purposes and marked ID.5 expired on 30/4/87 and to beat theexpiry date had applied for its renewal in March 1987 The business licence wasnot issued to him on account of his having been a Mgunya by tribe. He too hadbeen informed at the Town Council that no business licinces were going to be419

issued to Wagunya and Wasomali His appeal against rejection of his businesslicence applications was rejected. Like PW2 and PW2 he had received anidentical reply as that received by PW1 and PW2 communicating to him therejection of his appeal. This was produced in court and marked Exh.P.8 Inconformity with the advice to see the District Commissioner of Songea that wasgiven in the last paragraph of exhibit P.* Athumani Shali PW3 went to see theDistrict Commissioner of Songea District. The District Commissioner of SongeaDistrict issued him a letter which was produced and marked Exh. P.9 it wasidentical to the one that had been given o Mohamed Ally Athumani Exh. P.2 andto Adam Hissein Exh.P.4 He was required to be out of Songea District on or by30 th June 1987. under crossw examination it became apparent the PW5 wasborn at Tanga Town Makorora area and has never been charged let aloneconvicted of any offence and has en acres of land that he has been terming from1981. He has several children some of whom wee of school going age – someare in class seven and others are in class four. He fully engages himself indevelopmental work and other party activities like others, he was not told whichhis home was in this Republic. He was left to figure that out himself butnonetheless left with very little time to do it before setting to a new start hisSonga home uprooted H have been tempted to ask myself an this in view ofthese removal orders not an academic question where is home for p. Tanzanianthat has chosen to live in Tanzania at a place other than his birth place420

Home is cases of ones in search of greener pastures? For those Chaggas andothers in . Morogoro Rukwa, Coast, D’Salaam and other regions is ti one’sbirth place say Moshe or the chosen new place which could support ones livingsay Kimara in Dar es salaam Cap,104 does not provide an answer. It Cap.104was passed in 1944 by the Colonial Government home them must have beenones tribal area irrespective of where one wasborn it served the ColonialAdministration 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 Husseina Somali by tribe was a Hotelier running a hotel situated along Uhuru StreetSongea and called Shamsin Hotel. He has been in Songea from 1982 he wasborn at in December 1950 as evidenced by his Passport N. 132463 issued atDodoma on the 12 thNovember 1981 and produced in court for identificationporpoises and asrked I.6 He lives in Songea with his family and young brothersThey are five in all His business licesc expired in April1987 and his applicationfor its renewal was rejected on the that he was a Msomali/ The Trade officer atTown council Songea had informed him that no business lecence was going tobeissued to Wasomali and Wagunya. He was told to see the DistrictCommissioner of SongeaDistrict which he duly did. His appeals to the Appealcommittee against the decision of the Town council rejection his application forissuance to him of a business licence for the year 1987/88 was also rejected. Noreasons were given A letter from the Appeal commette rejecting his applicationsin identical terms as that addressed to Mohamed Ally Athuman p.W.a which had421

een produced and marked exhibit P.1 and to Adam Hussain V2 which had beenproducer and marked as Exb.3 and Athumani Shali Kombo PW3 which wasproducer and marked exh.P.8 was addressed to charmed AllyIt was produced in court and marked as Exh.P.10 Mohamed Ally Athumani PW4went to see the District court of Songea District and was issued with a letterproduct.. as Exhj. P.11 It was identical to those given to the previous threewitness as which required the said Mohamed Ally And to be out Songea Districtby or on 30 th June 1987 if he wanted to unpleasantness Like other witnesses,Mohamed Ally Ahmed was not told where to He decided to go in search ofjustice.Mohamed Omari P 5 a Tanzania from his temporary travel document No. 1391was born at village the 3 rdApril 1959 is a Songea had been living at theMautombo songea Rural running a hotel and guest house. The businessfollowing the qunfication of his business licences by th Regional Crims officercalled Ally Makame. The Regional Crimes officer showed Mohamed Omari PW2no written authority for the confistication of the business lices did he give him anyreason for the mentioned confiscation of this business licence All the RegionalCrime officer did tell Mohamed omare was that he Mohamed Omare if he hadwanted to know anything more about the the matter should go and see theRegional Police commander or the Regional Commissioner of Ruvuma RegionHe want and separately saw these officers but was given no reason by eitherjustifying the decision of the Regional Crime officer he Mohamed Omare P.W.5first went to see the Regional Police Commander who had told him that he know422

nothing about the subject matter as to the Regional Police commander RuvumaRegion was at the time of the indent at Tunduru did however promise toinvestigate the matter. Omare them went to see the Regional Commissionerwho also told him that he knew nothing about the case as he been away atDodoma for one month Dissatisfied by these replies he went to see the Tradeofficer Songea Rual who told him PW5 to address a letter to the Regional Crimesofficer the Regional Trade officer and the District commissioner Songea Districtcomplaining about the act of the Regional crims officer. PW2 stated that he didthis 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 alegal action against the Regional of crimes officer. He was however given no timeby the authorities to see this question grouch the courts he was repatriated outof Songea District under Police escort. He produced a removal order markedExh. 12 which appears to have been handed to him on the 1 st April 1987 Thedocument is of interest respite Mohamed Omare’s tremetin by the authoritiesreminiscent of these to natives coming colonial period the reason givenfor the removal of the said Mohamed Omari in view of the facts know to theDistrict Commissioner lack truth and show the cocause nature other people liveswere 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 distinctof oring of last place of order my residence is within the Territory but outside423

No time was give to Moamed omari to disposed of his things and no reasons wasgiven for the repatriation apart from those cetsiled in exhibit KP.12 According toPW.5 Mohamed Omari the Removal order was handed to him on the 6 th May1987 The fare was by the Distict authorities. In getting to Dar es Salaam P.CJanke him be the Station and eventually to the District Commissioner of IlalaDistrict who had wanted to know from the Police Constable reasons for therepatriation ofthe said Mohamed Omari According to the testimony ofMohamedOmar B/C Manke had nothing to tell the Distric Commissioner ofIlala District apart from stating that he (P. C. J ) had been acting on instructionMohamed Omari then told the District Commissioner of Ilala District his side ofthe story complaining that he had been mishandled and injustice done to him. Heproduced his documents The Distict Tparty Secretary. Aletter Ref. No, A.10/3/92dated 21 st May 1987 was addrewssed to the District commissioner of Songea. Inthe it was stated that PW 5 was living with his relatives at Shauri Moyo aria Ilalaand that he had been permitted by what authority it is not specified in the letter toreturn to Songea to take his assets as he Mohamed Omari had satisfied themthat the District Commissioner of Songea had not permitted him to take anythingthat was his at the time of his removal. The District commissioner of Songea wasrequested to offer to Mohamed Omare all the necessary assistance to enablehim to successfully complete his missionHe Hamed Omari testified that he case to songea was the District Commissionerof Songea District and was permitted to stay in songea up to 30/6/87 A letter tothat effedt Ref. No. DAO/C/U.10/1/36 dated 12/6/87 and signed by the District424

commissioner of Songea District was issued to him. This letter was copied to theRegional Police Commander oc. D. Songea District and the write of the letterfrom the Ilala District Commissioner’s Office who was also informed that the saidMohamed Omari would never be permitted to return to Songea after thatextension. This letter, which was produced in court and marked as Exh. P.15 wasin the same vein as those give to Mohamed Ally Athumani PW 1 and markedexh. P. 2 Adam Hussin PW 2 and marked as P 5 Athumani Shali PW3 andmarked as exh.P 9 and Mohamed Ally Athumani PW4 and marked as exh. P 11,Mohamed Omari maintained that he had obtained his business licencesproduced for identification purposes and marked as ID. 9 lawfully. He in additionto 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 businesslicence for the year 1987/88. His application had been rejected because he wasa Mosomali. He had been told by the Trade officer Songea Town Coucil that notrading license were going to be issued to Wasonlai and Wagunya. Under crossexamination. Mohamed Omar maintained that he had not been involved in anyunlawful activities that he had never dealt in Government Trophies and furtherthat he had no friend or relative dealing in Government trophies legally orotherwise.Sharif Abdillahi PW 6 like other witnesses in this case was a Tanzania He was aSomali that was born at Mpwapwa on the 20 th March, 1954 he was a Hotelierand has been in Songea from 1985. The hotel is being run in the name of ElmeAbdi. He had applied in March 1987 for renewal of his business licence that was425

expiring on the 30 th April 1987 His application was rejected and reason given forthe rejection was that the applicants was rejected and reson given for therejection was that the applicant was a Msomaji. It was confirmed to him that thelicence for the hotel situated in Songea town and called Ruvuma Hotel could notbe issued to him as it had been decided no Solima or Wagunya were going toget business licences. A document similar to those received by others and whichhad been quoted abover requiring him to leave Songea District by or on 30 thJune, 1987 was addressed to Elme Abdi This document was produced in courtand was marked as exh P.17 Abdu Athumani PW7 s Tanzania and Mguny bytribe stated that he had been living at Mojengo area in Tunduru Town. He runs agrinding machine on behalf of his brother Mohamed Athumun PW 8 He also hasa 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 hadvain applied or a business licenc for the year 1987/88 for the running of thegrinding machine. The current business licence producedin court for theidentification purposed and marked ID.12 was expiring on 30/4/87 The renewalof the business licence application was rejected on the basis that the applicationwas Mgunya. He too was told that he was not going to get a licenc as were goingto be issued to Somalis and Wanguny A removal order was issued to himrequiring him to be our of Tunduru within one month from the date of MohamedOmare and marked as exh. P. 12 gave no reasons apart from stating in itsparagraph 1 (a) Hatakiwe hapa Wilayani He was being repatriated to TangaRegion This repatriation order produced and marked as exhibit P. 18 was similar426

in all details to the one issued to Saidi Ally also Mguny by tribe and a Tanzanianwho had been conducting business of selling finsh in Tunduru and had beenliving 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 AthunamPW 8 and a brother of Mohamed Ally Athumani PW 1 The last witness for theapplication 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 beenconducting this business of selling fish at Tunduru from 1971. He has been livingat 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 purposeand marked ID.14 was rejected because he was a Mghunya by tribe. He wasalso told that no licence were going to be issued to Somali and Wagunya. Noremoval order had been issued to him because at the time of issuance of thesedocuments had had been out of Tunduru.No Respondent appeared in Misc. Civil case No. 2 of 1987 Mr. Sengwajiinformed the court that the District commissioner of Tunduru District wasindisposed and therefore could not g=travel to Songea. The district ExecutiveDirector of Tunduru District could not travel to Songea because of transportproblems/ As the consolidated Misc. Civil cased No. 2 and 3 1987 involved thesame issues Mr. Sengwaji submitted that the case could proceed. In the Misc.Civil Case No 3 of 1987 two witnesses appeared namely: The districtCommissioner for Songea District and the town Director, Town council Songea.427

The District Commissioner Songea District testified that he had written to theTown Director of Songa town council directing him not to issue business licencesto Somalis and Wagunya. He testified that he had given the directive incompliance with the directive that he had in turn receive from the RegionalCommissioner Ruvuma. In his testimony he stated that this decision had beentaken because the two tribes namely Wasomali and Wagunya were suspected ofbeing involved in illegal trade in Government trophies . it was felt that as it wasdifficult to detect and capture the culprits said to be belonging to the Wasoli. AndWagunya tribes because these have been using the local populace in theconduct of the illegal trading it was flit better to first refuse business licince to theWaosmali and Wagunya thereby putting them out of their businesses and then toapply Cap. 104 for their removal from the District. He dismissed suggestions bythe defence that some of the applicatisn were involved in agriculture. He was firmthat Wasomali and Wagunya were essentially tradesmen. No inquiries werehowever hade by him regarding his subject. He admitted lack of intimateknowledge of the activities of the six applicants in the Songea applications otherthan those that required business licinces. He offered no rebutting evidence onthe evidence of some of these six that they were also involved in agriculture. Hedealt at length with the case of Mohamed Omare PW5 whose business liceuchas been confiscated by the Regional Crimes (PW5) was taken at District level.He testified that Mohamed Omari PW5had obtained his business licencescontrary to the procedure required to be complied with by members of Ujamaavillages. Business licenc applications for members of such villages had first to be428

approved by village Governments. DW 1 testified that the minutes produce byMohamed Omari PW 5 to the District Executive Director Songea Rural had beenfaked by the village chairman and the village Secretary. There had been novillage Government sitting to discuss this question. The district Commissionergave 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 theDistrict Executive Director Songea Rural requiring the said officer to cancel thetrade licen of Mohamed omare Pw 5 at once. He also directed the said officer towrite to the minister of commerce and Industries to cancel Mohamed Omaribusiness licence. On what law the District Commissioner had acted was notstated. The Business licencing Act No. 25 of 1972 provides no such powers tothe DistrictCommissioner however. This action was therefore withoutjurisdiction.Selvester Tarimo DW 2. Town Director Songea Town testified that it was on thestrength of the communication addressed to him by the District CommissionerSongea District that no trade licenc be issued to Somalia and Wagunya that theapplication for renewal for business licences by the six applicants in Misc. Civilcase No 3 of 1987 were rejected. Dw2 testified that if it were not to issuedbusiness licences to Somalis and Wagunya the six application would have beenissued with business licance for the year 1987/88 Let me now examine theevidence before me. Before doing so however I would wish on the out set toclarify certain matters which I hold me of importance in the determination of this429

case. In entertaining these applications by ten application this court has usurpedme powers. This court has had powers to entertain such application for ages see,Northern Tanzania Farmers Cooperative Socety v. W. H Shellukino (1987)No. 36This court creature of statue in entertaining such applications performs for thebenefit 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 superiorcourts the powers of imposing an obligation upon individuals the courts ought toexercise as widely as they can the power of controlling those bodiesIf they attempted to-exceed their statutory powers it is one of high courts dutiesto exercise supervisory powers on bodies other than a superior court that areentrusted by parliament to take decision that affect the nights of the people topensure that these bodies perform with the limits set to them by the ParliamentThis ensures consistent of location of the countryentrenched principles offreedom and justicesto the Government ageists the Parliaments decisionencores avoidance of the this Republic duties being executive on people whomwhere people are reduced to numbers w. but any personal regard to hardship ofthe very people said by the officials to be serving These supervisory powersensures existence of tangible values like justice, truth consistory within whichare embedded elements such as compassion and dedication. He grant by theParliament of these supervisory powers ensured expediency or might is right430

forces that are always inconsistent such application the High Court does itself toembarrass or belittle the Government or its Agencies in order for itself to lookmore important in the eyes of the people. Ted the supervisor owners have beengrated to the High Court by the government and common sensedictates thatGovernment would not have put itself in such untenable position Secondly theirten applicant in resorting to this court have done nothing wrong or unconstitionalat all. For the applicants to have come to this court in search of justice havedemonstrated their belief in the even handed administration of justice in thisRepublic. Every citizen has a right when hi feels that the Government does notfaction within the ambit limits dictated by justice on that it the Governmen6 hadset on itself to seek redress in courts of law. A move by citizens such these tenapplicants have taken in each they consider as their rights should not be takenas intended to embarrassment the Government its Agencies. To them thequestion is not academic; it involves the uprooting of their lives. They have a rightto know whether such actions are permitted by our law or whether bt this placesrelative proximity to Sough Africa the Agencies of the Government here thoughtthey could take a leaf off the book of that evil administration. It is in the interest ofall people of good will reason, foresight,moderation and certainly theGovernment that one of its institutions clothed with appropriate powers exists toreassure the people that the Republic’s admirable objectives and theirexecution are intact. Thirdly before me are a set of application or orders ofcertiorari and Mandamus. The six application have filed for issuance of he ordersof certiorari and mandamus against the district Commissioner of Songea District431

and the towncouncil Songea and the four applicants have field for similarlyorders against the DistrictCommissioner of Tunduru District and the DistrictExecutive Director of Tunduru District. This set of application deal with the sameissues/. I therefore intend to handle the consolidated application on issues ratherthan deal with each civil application separately to avoid repetitions i.e. I will firstdeal with application for the orders of certiorari and then finish with applicationfor ardor of mandamus. The applicants evidence is in the main undisputed by theRespondents. The applicants in the order they appeared before me have allshown that they were Tanzanians and that they have been residents of Songeaad Tunduru Districts for considerable period on times conduction lawfulbusinesses, that had been properly licenced by licincingAuthorities. As theevidence by the applicantshas not in any case been challenged by theRespondents this court finds that what these applicants have stated is the TruthI have above commented on the confistiticationof the business licence ofMohamed Omare (PW 5) by the Regional Crimes officer. This act was unlawfulas it had been done in contravention of the law and clearly based on verysuperficial evidence. Except in the case of Mohamed Omare PW 5 whosebusiness licene for the hotel and guest house at Mantumbo village Songea hadbeen confiscated by the Regional Crimes Officer even before its expiry all theremaining applicants had had their business licences for the running of theirrespective businesses detailed above up to the time they expired on 30/4/87 Allthe applicants had duly applied in March 1987 for the renewal of their businesslicences and all their applications were rejected not on the lines permissible432

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 theirown homes. Many of thewe3 as pointed above have families and children ofschool going ate. Like any of us irrespective of position in life are entitled toexpect peaceful enjoyment of live that this constitution of the Republic wants. Allof these3 have nbot been convictedof any offence. They are law abidingcitizens most of whom have stated are active party members. Like all law abidingcitizens they expect amongst many rights, enjoyment of the right to work and notfor this right to be frustrated all the applicants do not criginate from this part of theRepublic, obout half of them could customarily be tied to Tanga Region whileothers to Shinyanga, Dodoma and Kilimanjaro Regions.The District Commissioner of Songea District had stated that he was not theoriginator of the decision not to have business licences issued to the applicantson the basis of race or tribe he had been told by the Regional Administration ofRuvuma Region to ensure that Somalis and Wagunya were not issued withbusiness licences. He nonethelessought to support the dicision and as itappears to this court merely on suspicion that the people who have broughtabout increase in lawful dealing in Government trophies were Somalis andWagunga he produced no evidence on this stand let me first group and lattertouch on the applicantsindividually. All that the District commissioner ofSongea District said to support the allegations that Somalis and Wagunya wereinvolved in unlawful trade of elephant tusks and rhinoceros horns was what (theD.C) called a great increase in the numbers o these offences during the years433

1985, 1986 and 1987 a said to have coincided with the increase in this paret ofthe Republic of the wagunya and Wasomali. The District commissionerproduced no statisticseither in terms of the increase of the mentionedoffecences in thisa part of the Republic measured against other parts of thisRepublic where such offences couldoccur nor did he produce numbers orstatistics to show the suggested or stated influx into Songes of the Wagunyaand Wasomali. Not that provision of these mummers would have been of muchsignificance in connecting the Wasomali and wagunya to the alleged increasein the type of the crime the District Commissioner talked about but it wouldhave provided a been The fact that even this important tool in making decisionswas not existing goes to show the superficial attention given by the RegionalAdminstration to this grave and sensitive problem. Increase in dealing inGovernment trophies that theDistrict commossiner of Songea District hastestified to could be explained by many other factors apart from the coming ofthe Wagunya and Wasomali in his District even if their influx were proved Publicawareness of the crime leading to the rendering of timely assistance by givingtips to the police applus or pay off for the party and the Government mobilizationdrives in this direction efficient functioning of the Anti Poaching unit and policeforce to more detection of crimes of that nature, expansion of villages into theside to the Rural part of the Republic enabling easy detection as Government atParty functionaries get nearer of the arethe area where such crimes areordinarily prevalent more explanations could be found their tab the said influx ofSomalis and Wagunya for the increase in the crimes. Before me only ten434

applicants these could definitely not be said to have been behindincrease inillegal dealings Government trophies. The numberis meager and theAdministration could easily have come up with more tangible evidence on such asmall group the increase cannot be tied to this group[ either Mohamed AllyAthumani Pw1 had been living in Songea from 1970 he cannot be tied to anincrease that is said to have shot up from 1985. Athumani Shami PW 3 has beenliving in Songea Town from 1981 Mohamed Ally Abmed PW 4 has been living inSongea from 1982 Mohamed Omari PW 5 has been living in Mamtumbeo fromJune 1986 well after the upward trend had and if one were to compare thealleged increase in terms of sea waves one would pay that he had come to thispart of the Republic at the crest of the waves Abdi Athumani Pw7 has lived inTunduru from 1980Mohamed Athumani has lived in Tunduru from 1971 andLali Athumani has lived in Tundure from 1971 Further all the applicants haveconducting lawful businesses and are without any criminal record.This court accepts the great temptations for the people to look for scape goats formisdeed or catastrophes that befall societies. Annals of history showthatscape goats are usually from a group that is easily identifiable and relativelyweaker in comparison to the accusing forces. History is full of people who havebeen said without much proof to be lazy, unintelligent, criminals, prostitutesswindlers etc, the list is long This stronger forces for inability to cure the defectsor in their respective societies have always looked for excuses, but thisdiscovery of scape does not eliminate problems. They continue to exist up to the435

stage where one find people with vision clear thinking foresight and imaginativeplans to put in action . the houning of Wasomali and Wagunya are not knownLet us now examine whether the removal orders by the District Commissioner ofSongea District to the Sic application issued by the District commissioner ofTunduur District to the first to application were issued in conformity with the lawof this counter. Township (Removal of Undesirable perous) Ordinance Cap. 104provides fore the removed of undesirable persons from certain areaAction 3 (1) providesWhere the District Commissioner has resizable cause to believer that a personbelongs to one of the specified in subsection (3) of this section and that theprecinct of such person within any township or other area within his distinct towhich this ordinal e extends is by of he matters mentioned in subsection (2) ofthis section undesirable in the public interest he may make an order (in thisardencies to as a Removal order) requiring such person• To leave the said township or other area not later than a date to bespecified in the order:• To present to such place as may be Reginald in the order, either underthe escor a person to be specified in the order or independent and• Thereafter the remind that said township or other area either during aperiod to be specified in the order of until further order,Application of S.3 (1) of Cap. 104 depend on two additional faction namely. Thatthe Distinct Commissioner must have reasonable cause to believethat the436

person against who he intends issue removal order belongs to one or thecategories specified in section 3 (3) and further that the presence of such personspecified under section 3(3) within a Township or other are within the Districtwhich this ordinal by reasons of any of the attends mentionedRemoval order may be made on any of the following ground that that is to sayThat the person has been sentenced to a term of imprisonment (other then indefault)In the case of Tunduru District Townships (Removal of undesirable persons)Ordinance, Cap. 104 is not applicable in that part of the Republic and couldtherefore not be called in aid the District Commissioner of Tundureu District Buteven if this ordinance had been applicable in Tunduru District the applicationagainst whom these removal orders were issued are not of the type againstwhom Cap. 104 could be applied and for the same reasons that I have pointedout in the cases of the six application in the Songes District case. Both theDistrict Commissioner of Songea and the District commissioner of TunduruDistrict had therefore acted without jurisdiction. It was incumbent u[on theseofficials to perform within jurisdiction for those4 who act beyond their jurisdictionand their act affect interest or rights of other people as is in the cases underconsideration their actions cannot be allowed to stand. In the cases underconsideration they involve uprooting of innocent citizens from their establishedplaces and businesses. These have settled homes with apparently flourishingbusinesses and children of school going age. These orders by the District437

Commissioners of songea district and Tunduru District qualify to be quashed byissuance of orders of certiorari.There was a question as to whether apart from the order issued to MohamedOmari PW 5 and Marked exh. P. 12 other documents namely exhibit P 2 issuedto Mohamed Ally Athumani PW 1 exhibit P.9 issued to because as alreadypointed to above the District Commissioner of Songea District had no jurisdictionat all to issue them/ likewise, the orders issued by the District Commissioner ofTunduru District in respect of Abdi Athumani and Saidi Ally requiring them toleave Tunduru District as undesirable persons on ro before 30 thjune 1987 arehereby brought into this court and quashed because the said Districtcommissioner of Tundureu had no jurisdiction to issue themThe evidence clearly shows that rrejection of business licence applaction ofMohamed Ally Athumani, Adam Hussein Athumani Shali Kombo Mohamed AllyAhmed Elmi Abdi and Mohamed Omari Ahmde by the Town Director SogneaTown council on the strength of the communication to him the sadi town directorSongea town council by the District Commissioner Songea District i.e. that noapplicant for a business licence that was a Somali or Mgunya be granted abusiness licence was clearly contrary to the provision of the Business LicenceingAct No.. 25 of 1972 and without jurisdiction. The licencing authority had abandonthe criteria set to it by Parliament in preference for standards that were based onrace and tribe. I need not emphasize the fact that this Republic has consistentlyand very l loudly and at times at great economic penalty to itself rejected takingoccasions on consideration of race or tribe in all its domestic and international438

dealings. Expedient is not this Republic’s Policy. Not is hypocrisy. This Republicconsistently rejected practicing that which it condemns when done by other. Asthe town Director Songea Town council in rejecting the business application ofthe above six application has no jurisdiction at all his decision cannot be allowedto stand. The decision are hereby brought to trhis court and quashed.The Destrict Executive Directore of Tunduru District in rejectiong application byAbdi Athamani Saidi Ally Mohamed Athumani as Lali Athumani had not alsocomplied with Business licincing Act No. 25 of 1972. Going by the evidence onrecord which had not been sputed the business licence application had beenrejected for a tribal reasons.Action of this nature by the District ExecutiveDirector Tunduru District were taken without jurisdiction. They cannot thereforeby left to stand. These orders are brought into this court and quashedThe six applicants in Misc. Civil case No. 3 of 1987 namely Mohamed AllyAthumani, Adma Hussein, Athuman Shali Kombo Mohamed Ally ahmed, ElmeAbdi and Mohamed Omari Ahmed has also applied for orders of Mandamusaddressed to the Town Director of Songea Town Council compelling him toconsider the application by the six application for business licences according tolaw. On the basis of the evidence before this court the pleas by the sixapplicants are granted. The Town Director to the Songea Town council ishereby compelled to consider the application by the six application for businesslicenceAccording to law. The town Director is further compelled to finalize this exercisein 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 ofmandamus addressed to District Executive Director to Tundureu Districtcompelling him to consider the applications by the four applicants for businesslicences according to law. This prayer is granted. The District Executive Directorof Tunduru District is hereby compelled to consider to law. He is furthercompelled to finalize this exercise withi8n a period of three weeks starting fromtoday.Thiscourt further finds that an order of prohibition to prohibit the Districtcommissioner of Tunduru District from issuing Removal orders to the third andfourth applications: Mohamed Athuman and Lali Athuman issue. Accordingly theDistrict commissioner Tunduru District is hereby directed not to issue Removalorders to Mohamed Athuman and Lali AthuminiThe Right to Clean and Satisfactory EnvironmentFesto Balegele and 794 othersVersusDar es Salaam City CouncilThis was an application by residents of kunduchi Mtongan for Orders ofCertiorari, prohibition Mandamus and costs thereto to quash the decision of theDea es Salaam City Council to dump the city’s waste and refuse, to prohibit therespondent from continuing to carry out its decision; and to compel the440

espondent to discharge its function properly by establishingan appropriaterefuse dumping site and us it.Kunduchi Mtongani is within the area of jurisdiction of the City council, but it iszoned in the city’s Master plan as a residential area. The Council began to dumpwaste and refuse at this area effectively from September, 1991 after the HighCourt’s order in Joseph D. Kessy and Others v. the City council of Dar es Salaamnot to dump refuse at Tabata. The dumped refuse and waste were burningemitting much smoke covering wide area and offensive smell has attractedswarms of flies.For the applicant, it was argued that collection and disposal of refuse was one ofthe city council’s Mandatory duties, but the law required that statutory duties tobe performed lawfully and that by dumping refuse at Kudunchi-Mtongani therespondents were executing its duty unlawfully thus ultra vires. Therespondentsdid not consider the relevant factors in deciding to dump waste atMtongani the decision was also without plausible justification because thedump8ng activity was posing a health hazard and nuisance to the residents andthereby making life extremely unbearable and the decision was unreasonableInreply, for the respondents it was submitted that in depositing refuse atKunduchi Mtongani they were performing a statutory duty lawfully, and theactivity was not ultra vire the Empowering Act.441

The Court held that the respondent’s decision to disposing refuse and waste atKundichi 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 wasnot a statutory duty of the respondent to create nuisance but to stop it Nor is it tocreates sources of danger to the residents’ health. And that it was not proper fora 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 theright to life and its protection by the societyRulingRubama,JThe application by Festo Balegele and 794 others against the Dar es Salam CityCouncil made under section 2 (2) of the judicature and Application of LawsOrdinance, 55 the law52 High Court of Tanzanie at Dar es Salaam Miscellaneoue Civil Cause No. 90of 1991 (Unrepoted)High Court of Tanzania at Dar es Salaam. Civil case No, 299 of 1988(Unreported)> act No. 8 of 1982Chapter 453 of the Revised Laws of Tanzania Mainland.Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance 56 asamended 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 isfor the following orders:442

(i) an order of certiorari 8 and section 95 of the Civil procedure code, 1966 if forthe following orders:(i) an order of certiorari to remove to the Hi8 and 8 and 8 and section 95 of 8and se8 and section 95 of the Civil procedure code, 1966 if for the followingorders:(i) an order 8 and section 95 of the Civil procedure code, 1966 is for 8 andsection 95 of the Civil procedure code 1966 is for the followingThe application is supported by a thirty three (33) paragraphed affidavit sworn bythe said Festo Basegele and opposed by a twenty four (24) paragraphed counteraffidavit sworn by Aloysius Mujulizi Serunkuuma a solicitor in the employment ofthe respondent. In the counter affidavit, the respondent also gave notice that atthe hearing of the application by Festo Balegele and 794 others, the respondentwas going to raise a preliminary objection on points of law. Paragraph 2 of thecounter affidavit detailed the nature of the preliminary objection on points of lawto 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 tothe effect that the application before the court was misconceived and thusqualified to be dismissed. I reserved ruling when I came to give it ti was to theeffect that the raised preliminary objection was without merit I dismissed andundertook 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 mandamusby Abdi Athumani and 9 others v. the district commissioner of Tunduru Districtand 3 others 57 this court (Rubama, J.) had addressed itself on the issue thathad been raised bt the respondent as preliminary point in the matter now beforethe 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 andobtained orders of Ceriorari prohibition and mandamus. Some of them had beenrefused trading licences by the appropriate licensing authorities not inaccordance with the Business Licensing Act, 1972 58 Eight of the applicants hadbeen saved with Removal orders irregulary issued under the township (Removalof Undesirable Persons) ordinance. 59 Ruling on that application Abdi Athumaniand 9 others (supra) I had statedIn entertaining these applications be the tem applicants this court has usurped nopowers this court had had powers to entertain such application for ages seeNorthern Tanzania Farmers Co-operative Society limitedv W.H Shellukingo(preliminary objection) 60 this court a creature of stature in entertaining suchapplications performs for the benefit of the people As was stated by Brett, L.J inThe Queen (on the prosecution of the penalty local Board) v. The LocalGovernment Board 61 that: wherever the legislature entrusts to any body ofpersons other than its superior courts the power of imposing an obligation upon443

individuals the courts ought to exercise as widely as they can the power ofcontrolling those bodies If they attempted to exceed their statutory powers. It isone of High courts duty to exercise supervisory powers on bodies other that asuperior court that ate entrusted by parliament to take decision that affect therights of the people to ensure that these bodies perform within the limits set tothem by the parliament. This ensures consistent application of the country’sentrenched principles of freedom and justice by the Government agencies. Theparliaments decision ensures avoidance of this Republics duties being executedon peoples whims where people are reduced to numbers without any personalregard to hardship of the very people said by the officials to be serving. Thesesupervisory powers ensure existence of tangible values like justice truth,consistency within which are embedded elements such as compassion anddedication. The grant by the parliament of these supervisory powers ensures thatexpediency or might is right forces that are always inconsistent and withoutpermanency are eliminated in entertaining such application the High Court doesnot set itself to embarrass or belittle the Government of its Agencies in order foritself to look more important in the eyes of the people. As stated the supervisorypowers have been grated to the High Court by the Government and commonsense dictated that Government would not have put itself in such untenableposition 62The following facts are not in dispute.(i) that kunduchi Mtongani is within the area jurisdiction of the Dar es Salaamcity Council(ii) that Kunduchi Mtongani is zoned in the respondents master plan as aresidential area(iii) that the applicants reside at Kunduchi Mtongani(iv) that the respondent has been dumping the city’s collected refuse andwaste at Kunduchi Mtongani and instead of at one of the five sites designatedin the City’s Master plan for dumping the collected city’s refuse and wasteeffective September 1991 soon following this courts order in Civil Case299/88 (Dar es Salaam) in which respondent was ordered not to dump refuseat Tabata(v) that the dumped refuse and waste at Kunduchi Mtongani is presentlyburning emitting much smoke covering wide area(vi) that the dumped refuse and waste emanated offensive smell and hasattracted swarms of flies. Mr. Mwaikusa correctly submitted that refusecollection and its disposal was one of the respondents mandatory dutiesunder the Local Government (urban Authorities) Act, 1982 He further correctlysubmitted hat the respondent was required by law to perform its statutoryduties lawfully. Mr mwaikusa submitted however that the respondent indisposing the collected city\s refuse and waste at Kunduchi Mtongani wasultra vireos the Act as the Dar es Sallsm City Council the respondent; (i) hadnot taken into consideration the relevant factors in coming to its decision;associated provincial picture Houses limted v. Waynesburg Corporation 64444

Mr. Mwaikusa argued that the relevant factor that the respondent should haveconsidered in selecting Kunduchi Mtongani as the61 [1882] 10 Q.B 309 (AC) at 32162 AT pp. 22 and 2363 Act No. 8 of 198264 [1948] 1 K.B 223City’s collected refuse and waste dumping are were the general landdevelopment plan of the area that Kunduch Mtonga was zoned a residentialarea that Kunduchi mtongani was not within one of five sites zoned forgarbage disposal (ii) choice of the are was without plausible justification Mr.Mwaikusa pointed out that it was one fo the duties of the respondent toenforce as proved by section 36 to 38 of the Town and Country planningOrdinance 65 land development plan. The Counsel submitted that therespondent was dumping refuse at an area marked residential and where infact people are residing thereby posing a health hazard and nuisance to theresidents by this decision the Counsel went on to submit the place which is atany rate too small for the requirements of the respondent has been asattraction of swarms of flies and is offensively smelly thereby making life ofthe residents extremely unbearable. To compound this state the refuse hasbeen put on fire emanating smoke. Mr. Mwaikusa concluded that KunduchiMtongani as a refuse primitive. The place has been turned into a healthhazard and a nuisance to its residents.The decision of the respondent, Mr. Mwaikusa went on to submit lookedobjectively was devoid of any plausible justification that could have made3any reasonable body of persons reach it; Bromley London Borough Council vGreater London Council and Another 66 (iii) appeared to have reached itsdecision of the choice of the area through outside dictation Mr. Mwaikusasubmitted that it appeared the respond was dictated to by the Centralgovernment on the choice of Kunduch Mtohanga as the City refuse dumpingplace. As the enabling Act does not permit the respondent to abdicate itspowers in favour of another body, Mr. Mwaikusa argued, the act of therespondent was ultra vires the Act H. Lavender and Son Ltd. V minister ofHousing and Local Government 67 Mr. Mwaikusa further submitted that theapplicants residnts of Kunduchi Mtongani were aggrieved and thus with locusstandi to apply for the orders of certiorari and prohibition Regina v. LiverpoolCorporation Ex parte Liverpool Taxi Fleet Operators Association and Another68 Mr. Mwaikusa lastly prayed for an order of mandamus by requiring therespondent (i) stoppage of the nuisance it was causing (ii) compliance withthis courts order issued in the case of Joseph D. Kessy and Other v. The CityCouncil of Dar es Salaam69 (iii) compliance with the land development planby selecting one of the five sites designated for the City’s disposal of collectedre3fuse and waste as shown in the City’s master plan.445

Mr. Kakoti the respondents solicitor submitted that the respondent indisposing refuse at Kunduchi Mtongani is performing a statutory duty lawfullyin land filing the abandoned stone quarries at Kunuchi Mtongan therespondent are reconditioning the land trough sanitary land filing. This actionwas not ultra vires the Act. As the sought order of mandamus Mr. Kakotisubmitted that the applicants had not complied with the conditions precedentfor the issue of the Order Alfred Lakarr. My Town Director Arusha 70On the submission by Mr. Mwaikusa that the respondent appeared to beactin on dictation of the Central Government thereby making its action ofdumping garbage at Kunduchi Mtongani ultra vires the Act. Mr. Kakotisubmitted that it was the duty of the Treasury of the Republic to provide suchfunds as were adequate for the provision of public health service. On theorder of prohibition, Mr. Mujulizi submitted that it was not the intention therespondent to dispose refuse at Kunduchi indefinitely. The decision todispose refuse at the area was a temporary one whole the respondent waslooking for an alternative place for the duping refuse. Mr. Mujulizi prayed thatthe court exercise its dissertational favor of the respondent who wouldotherwise fail to perform its statutory duty of refuse collection and disposal.I have above dealt with the issue of courts jurisdiction in entertainingapplication for orders of certiorari, prohibition and mandamus’s. it is best that Imove 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 isnot disputed that the applicants are residents of Kunduchi Mtongani Thistaken together with the several facts that I have outlined above as notdisputed make the applicants persons aggrieved by the decision of therespondents. I accept the affidavit of Festo Balegele that the residents ofKunduchi Mtongani working through its committee fo which the said FestoBalegele was the secretary and through its Member of parliament had maderepresentations to the respondent among others to stop dumping the City’scollected refuse and waste at Kunduchi Mtongani but to no avail. Theirrepresentations were not taken seriously.Taking into consideration the submission of Mr. Mwaikusa on its issue I findthat the applicants resort to this court was in order. As what this court hadsaid in Abdi Athumani and others v. The District Commissioner of TunduruDistrict and 3 others (supra) appropriately covers the application in theapplication under consideration I find it fitting to adopt it hereApplicants in resorting to this court have done nothing wrong orunconstitutional at all. For the applicants to have come to this court in searchof justice have demonstrated their belief in the even handed administration ofjustice in this Republic. Every citizen has a right when he feels that theGovernment does not function within the ambit or limitws dictated by justice446

that the Government has set on itself to seek redress in courts of law. A moveby citizens such as these applicants have taken in search of what theyconsider as their right should not be taken as intended to embarrass theGovernment or its Agencies its the interest of all people of good will, reasonforesight, moderation and certainly the4 Government that one of itsinstitutions clothed with appropriate powers exists to reassure the people thatthe Republic’s admirable objectives and their executions are intact.On consideration of the affidavit, counter affidavit and the very elaborate andable submissions by three counsel, I am of the view that the respondentdecision of disposing the City’s refuse and waste at Kunduchi Mtongan wasultra vires the Local Government (Urban Authorities) Act, 1982 for thereasons submitted by Mr. MwaikusaWhich I accept. Further the manner of disposal of the collected refuse andwaste terminates any possible claim by mr. Kakot that the respodnt are in theprocess of reconditioning the disused stone quarries at Kunduch Mtonganmy collection refuse from all over the city to dump it at Kunduchi Mtonganicontrary to the City’s master plan that kunduchi Mtongani is by this masterplan not zoned as one of the five sites for refuse disposal but zonedresidential and that there are several people residing there to whom anuisance has been created. The place has been made intolerably smelly anddirty with flies all over and the deposited refuse burning and emanatingsmoke. It is a statutory duty of the City Council, the respondent to shopnuisance and not to create it. The submission by Mr. Kakoti that therespondent was reconditioning the land at Kunduchi Mtongani Stands noclose examination. What the respondent id going now is not sanitary landfiling as that process is understood but just refuse dumping. The dumpedrefuse attracts flies and emits foul smell the dumped refuse which has beenset fire to the dumped refuse it is t after effects that is of concern here As toMr. Munulizi’s submission that the respondent intends to use KunduchiMtongani 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 refusedisposal, that question of unprepared ness does not arise. But even if themaster plan had not provided for the possible sits for refuse dumping I wouldstill not find merit in the submission of Mr. Mujulizi on the issue of being giventime to look for a dumping sit. Refuse collection and disposal as one of thestatutory duties of the respondent should have been given priority treatmentit deserved. Peoples health and enjoyment of life are partly dependent onliving on healthy surroundings. I would further reject Mr. Mujulizi’s submissionin 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 oreven and individual to go to court and confidently seek for permission topollute the environment and endanger peoples lives regardless of theirnumber. Such wondered appear to be peculiarly Tanzanian but I regret to447

say that it is not give to any court to grant such a prayer. Article 14 of ourconstitution provides that every person has a right to live and to protection ofhis life by the society. It is therefore a contradiction in terms and denial of thisbasic right deliberately to expose any bode life to danger or what is eminentlymonstrous to enlist the assistance of the court in this infringement.In view of my findings this court brings into court the decision of therespondent of dumping refuse at Kunduchi Mtongan and quashed it Thiscourt further prohibits the Dar es salaam City council from continuant to carryout its decision of using Kunduchi Mtongani as a refuse dumping site. Thiscourt lastly issues an order of mandamus and directs the Dar es SalaamCouncil to discharge its function properly and in accordance with the law byestablishing an appropriate refuse dumping site and using it.The respondent is to berar the cost of this application lastly I wish to highlighttwo points that this court is not there concerned with the wisdom or indeed,the fairness of the respondents decision of selection Kunduch Mtongani asthe City dump8ng palce of the collected refuse and waste. All I am concernedwith is the legality of that decision was it within the powers that the Republicsparliament has conferred by legislation to Dar es salaam city councilSecondly I wish to emphatically state that I have not come to the abovedecision lightly., I near in mind that only on 9 th September 1991 therespondent was ordered by this court to stop desposal of the citys refuse atTabata Dump. I take judicial notice of the disorientation that order had causedto the respondent. But I can do nothing in this regard than to expressunderstanding of the feeling and then to apply the law. I can do no betterthan adopt the poetic and extremely illustrative language of makame J (as hethen was in the case of Republic v Agnes Doris Liund 73 to express my viewof how my hands are tiedThis necessary finding causes me personal anguish but my powers and myinterpretation role are circumscribed by the law. I have to take the law as it isnot as I might personally wish it to be. H have my legal training andprofessional ethics to be true to my oath of office to be faithful to and at theend of the day my conscience to live woth. As William Shakespeare puts it sodoes conscience make cowards of us all.72 At p. 15 to 16 of the hand written ruling73 [1980]TLR 38 at p. 44.448

AT DODOMACIVIL CASE NO. 23 OF 1993JAMES GHAGILO PLANTIFTVERSUATTORNY GENERAL DEFENDANT449

RULINGThe power of the president of the united Republic of Tanzania to remove acivil servant from service in public interest is being challenged in this case.The question is does the president has the authority to remove someonein the public service in public interest without disclosing what that publicinterest 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 ifthe considers it in the public interest to do soThe issue is as what is in public interest is the word of the president finalin other words in deciding as to whether the decision was in publicinterest what test the apply a subjective test or an objective test? Thestate attorney Mr. Nyabiri has argued that the test is subjective and of thedecision of the President cannot be questioned in court.There is another question as to whether this court has jurisdiction toinquire 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 functionunder this Act shall not be inquired into by or in any court.Have the courts been rendered important by provision ousting thejurisdiction of the courts these are the question that I have been invited toanswer in this case.The plaintiff in this case is a seasoned civil servant one Mr. James FaukeGwagilo who until 15 th May 1990 was a Regional Development Directed450

for Tabora Region . By a letter dated 29 th December, 1990 be wasinformed by the lineal (Establishment ) thatThe 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 directedthat you are retired from the public service in public interest with effect from 15 thMay, 1996. No reasons were disclosed as to what rendered the retirement to beof interest to the public at large. However the letter state that the retired servantwould be paid all his pension due.451

Now the said plaintiff has filed a suit for a declaration that his retirement in publicinterest was wrongful. He prays to be declared as still a lawful employee of thegovernment. He claims Shs. 47,559,511/60 as damages for wrongful retirementand his arrears of salary and other allowances that he was entitled to. He alsoclaims shs. 157,717,644/60 as special damages. The Government through theState Attorno Mr. Nyabiri has raised a preliminary point to the effect that thiscourt has no jurisdiction to try this case. However the plaintiff through hisadvocate Mr. Dominic Mbezi has contended that this court has the jurisdiction totry 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 civilservant in the public service in public interest. He said that power issupplemented by the Government Standing Order F.35 which states that a civilservant holds his office at the pleasure of the President and so he can bedismissed at will. Counsel for the plaintiff Mr. Mbexi has rightly pointed our thatthe correct Standing Order is F.44 which states that a civil servant holds hisoffice at the pleasure of the President.I will be quick to point out that the Standing Orders have no force of law. Thosestanding orders have been by the provisions of the Civil Service Act. No. 16/1989and the Constitution. The Standing Orders had validity only during the colonialperiod when the Crown could dismiss a civil servant at will as he hold office atthe pleasure of the Crown. When Tanganyika became a Republic in 1962 theprerogative power of the crown to dismiss a civil servant at will did not evolvo tothe President. Instead the President could only remove a civil servant not at willbut in public interest as per 20 (3) of the Civil Service Ordinance Cap. 509 of1961. 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 isa distinction between this and the power to dismiss at will exercisable by theCrown in England of the President in Uganda. Whereas under the prerogativethis Crown nood not state whey an officer is being disclose and no cause noodbe shown for the discharge, under the Tanzania Act, the President must act if thepublic interest so requires. There must exist some circumstance to enable thePresident to form the opinion that the removal of an officer is in the publicinterest.In fact Art 36 (2) of our 1977 constitution which the State Attorney has citedreinforces the view that the President has no power to dismiss the civil servant atwill, contrary to what the Standing Order provide. The Art. 36 (2) of theConstitution clearly provides that the president has no power to terminate orremove someone in public interest except in the accordance with the previsions452

of the Constitution or the law of the land. New the only law available fortermination 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. . MachIslam 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 ofcontract of employment. In Kenya neither the Constitution nor the regulationprovide for dismissed at pleasure by the President or the Public ServiceCommission, only termination of appointment in the Public interest; this is verydefferent from dismissal. It would seen to follow therefore that there is a propercontractual relation ship between the Kenya Government and the servants, onein which, it is true, all the cards are stacked on one side, but that is notuncommon those days end it represents a step forward from the colonialposition”.I hope by now the State nterest Mr Mnairi has understand that the GovernmentStanding Orders do not represent the true state of the law. Mr Nabiri was alsoquite from the think that the of Opoloto vrs. Ugander: (1969)represents the true position of the law. That case held .thepresident of Uganda had the power. Dismiss a civil servant at will. That is theposition in Uganda where the Constitution of Uganda stated that on theattainment of Republican status, the progogative powers of the Grown wasvested in the President of Uganda. But in the 1977 Constitution of Tanzania wehave no such provision. The president of Tanzania has no prerogative power todismiss a civil servant at will but in terms of Art. 36 (2) of our Constitution hemust remove someone in the civil service in accordance with the law i.e. ServiceArt No. 16.1989.Now the next question is as to whether removal in public interest in equivalent totermination at the will of the President.The answer is an emphatic o. As Prof. Abraham Kiapi rightly points out in thepassage I have quoted above, whereas in the termination at will the Crow neednot show the cause for the discharge, under our law the President must statewhat the interest of the public is being served. To quote his words: ‘There mustexist some circumstance to enable the President to form the opinion that theremoval of an officer is in public interest’. The President cannot and should notjust out of the blue, state that he was removing someone in public interestwithout disclosing the interest of the public to be served. Otherwise he will beaccused of acting arbitrary and in a high-handed manner. In other words it will bean abuse of power.The duty to give reasons by the President when removing someone in the civilservice in public interest in reinforced by the provision of Art. 13 (6) (a) of ourConstitution. That provision states that every person whose rights and obligationare being determined by a public officer, has the right of appeal or the right to453

another remedy against that decision. By the phrase “another remedy’ there iscarsaged the right to judicial review. But there can be no judicial review if thedecision – maker has not given the reasons for his decision. As Lord Upjohnobserved in the case of Padfield Vrs Minister of Agriculture, Fisheries and Food:(1968) A.C 997 at P. 1061‘.if he does not give any reason for his decision a court may be at liberty tocome 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 appealor judicial review ineffective and illusory. Conserquently there is an implicitobligation to give reasons in order to facilitate and render meanng the exercise ofthe right of appeal and judicial review,. Our Constitution in art. 13 (6) (a) musthave intended the constitutional right of appeal and judicial review to be aneffective right and that the President by keeping silent cannot defeat the citizen’sconstitutional right. To hold otherwise would been that the President could inalmost every case, tender the right of aapeal and judicial review completelynugatory-see the decision of the every council in the case of Minister of NationalRevenue Vrs. Wright’s Canadian Repees Ltd ; 1947 A.CI 109 at P. 123. Ifreasons are not given for a decision by the President that will render it virtuallyimpossible for the courts to perform their function of judicial review. If the basisand reasons for the impugned decision are not articulated it is difficult for areviewing curt to adjudge the validity of the decision. The courts cannot exercisetheir duty to revbiew unless they are advised of the considerations underlying theaction under review. That is the common law rule also all ober thecommonwealth – see in the Matter of Amir Hanza Umar and the Minister for localGovernment:Mwanza High Court. Misc. Civil Case No. 9/1989; and Osward Vrs. Publicservice 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, isto ensure proper application of mind, to reduce the possibility of casualness andcapricisnous. In brief to maintain the integrity of the decision-making process.The compulsions of disclosure of the public interest involved guaranteesconsideration an introduces clarity. If reasons for an order are given there will beless scope for arbitrary or partial exercise of powers and the order ex-facie willindicate whether extraneous circumstances were taken into consideration by thePresident in reaching his decision. That will be an effective restraint on abuse ofpower.In addition to imposing a healthy discipline on the decision-maker, publicconfidence in the decision-making process is by the knowledge that acceptablereasons have to be given by those who exercise administrative power. Besideseven if the decision is adverse, the person affected may be convinced by thereasons to accept it as a reasonable and far exercise of discretionary power.454

Another important consideration underlying the requirement to give reasons as towhy 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 hasgone against his or her. What is required is not a detailed judgment but a briefand concise statement of reasons for the adverse decision.Moreover the obligation to give reasons, our President should note, also flowsfrom the citizen’s right to know and the right to have information which is anessential component of the freedom of speech and expression guaranteed underArt. 18 of our constitution. The Supreme Court of India in the case of S.P. QuotaVrs. Union of India: (1982) A.I.A. (S.C.) 149 declared the right to know from theguarantee of free speech in the Indian Constitution. I adopt that reasoning. Thusthe rights to have information obliges the President and other authorities todisclose reasons for their decisions which affect citizen’s rights.It can be said with confidence that since Art. 13 (6) (a) of our Constitutionprovides for the right of appeal and right of judicial review from every decisionaffecting citizen’s rights, then ipso fact it creates a third head of the principles ofnatural 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 toreasons from a decision-maker – that it is a denial of natural justice to refuse togive reasons to the party who lost. Thus the third pillor Pf the principles of anatural justice is here to stay just as day follows right. In order that it be at nodisadvantage 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 equateremoval 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 notthe courts to determine what annunts to public interest. He said that the decisionof the President is subjective and that is whey the legislation in question statesthat if the President considers it’ to be in public interest. So he said that thewords used puts in clearly that it is entirely in the discretion of the President todetermine whther a particular decision is in public interest or note. Iam quitecertain that the State Attornoy is wrong. In matters of this kind the test is anobjective test and not a subjective test. A similar expression was considered bythe Tanzania Court of Appeal in the case of Agro Industries ltd Vrs. AttonrneyGeneral: Civil appeal No. 34/1990 (DSM) whose judgment was delivered on23/4/1993. What was in issue was the provision in S.10 (2) of the LandOrdinance Cap. 113 which provides:‘Not with standing the provisions of sub-section (1) the president may revoke anight 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 infavour of a tespeasser ( a public corporation) as against a lawful owner (a privatecompany). The Tanzania Court of Appeal, as per Temadiani J.A. held that notwith standing the wording suggesting a subjective test yet the test to be appliedwas 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 aprivate enterprise or an individual. So the crucial question is what action is in thepublic interest; to protect one with a legal title on to protect a trespasser? What isat 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 thepublic interest? We are satisfied that public interest, as we have stated tounderstand it, requires that legal property rights should be protected againsttrespasser. In fact the President was misled. If the President was seized of thefull and correct situation he would not, in our opinion, have used his name toprotect a trespasser alleit a public enterprise. He would have been of the opinionthat, that was not in the public interest.The important point to remember is that the Tanzania Court of Appeal applied anobjective 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 itis so when looked at objectively and impartial eyes the motion is primarily andnot incidentally in the interest of the public which depending on the matter atissue, may even comprise the individual or individuals concerned and it matternot whether the public is aware of it or not’;.So a matter which benefits an individual may be in public interest depending inthe circumstances, for example where the basic human rights of an individual areat stake against an expressive majority or public.The subjective formulation of discretionary powers is not a new phenomenon, asof the executive attempt to restrict the scope of judical review. But the courts donot consider themselves important in the face of those subjectively frameddiscretionary power. In the case from England, the case of Sec. Of State forEducation and Shionco Vrs. Motropolitan Borough of Tamoside: (1976) 3 All 665the statute stated that ‘ if the Minister satisfied’ he could decide something. Theissue was whether the matter he could be challenged. Lord Wilberforco said atpp.681 – 682”‘ This form of section is quite well know and at first sight might seem to excludejudicial review on what is or has become a matter of pure judgment. But I do notthink 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 theSecretary of State alone, the court must enguiro whether those facts exist and456

have been taken into account, whether judgment has been made on a properself-disrection as to these facts, whether the judgment has not been made onother facts which ought not to have been taken into account. If thoserequirements are not met, then the exercise of judgment however hona fide itmay be, becomes capable of challenge’.And a similar view is taken by Lord Donning M.R. in the case of employmentSecretary Vrs. A.S.L.E.F (No. 2): 1972 2 Q B. 455 where the status said ‘if iteppeared 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 theMinister’s decision is public and challenge. The scope available to the challengerdepends very much on the subject matter with which the Minister is dealing . Inthis case I would think that if the Minister does not act in good faith or if he actson extrancous considerations ought not to influence or if he plainly misdirectshimself in fact or in law, it may well be that a court would interfere. But when hehonestly takes a view of the facts or the law which could reasonably heentertained, then his decision is noted be set side simply because thereaftersomeone thinks that his view was wrong.’The Privy Council as per Lord Salmon expressed their sentiments in more bitinglanguage in the case of Attonrey – General of St. Christopher, Nevis and AnguillaVrs. Reynolds: 1981 A.C. 637.Then it is said as p. 656:‘The Lordships consider that it is impossible that a regulation could beproperly construed as conferring dictatorial powers on the Governor and that iswhat 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 measureseventhe most alrocious measures – which he took were necessary andjustifiable, 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 beable to axamine the exercise of discretionary power. If the discretion is notsubject to review by a court of law, then in our judgment, that discretion would bein actual fact as arbitrary as if the provisions themselves do not restrict thediscretion 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 therole of the courts in trammeling abuse of executive and administrative power ofthe government was fittingly put across by an eminent English judge LordDenning Mp.in the case of lake Airways Ltd. Vrs. Dept. of Trade. 1977 ) 2 AllJ.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 aMinister or his department. If it is found that this power has been exercisedimproperly mistakenly so as to infringe unjustly on the legitimate rights andinterests 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: alertto see that a discretionary power is not exceede or misused’.So the learned State Attorney, is potently wrong to think that since thediscretionary powers of the President are subjectively worded, then the Presidentis beyond challenge. As amply demonstrated herein above, the president can bechallenged, 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 asprivative clauses, which attempt to oust the jurisdiction of the courts. As statedearlier, the ouster clause in here is contained in S. 23 (2) (a) of the Civil ServiceAct. No. 16/1989. At the outset I would like to put down plainly that outor clausesare paper tigers meant to scare the unway and the uninitiated in this realm of thelaw. They are simply put there as scarecrows. As Hon. Mr. Justice John Lawsstates in his article. ‘Is the High Court the Guardian of FundamentalConstitutional Rights? In the Public law, Journal of Spring 1993 at .78:‘Since the case of aninigninic Vrs. Foreign Compensation Commission: 1969 2L.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 lawor at loast to make it and not the court the judy of what the law is, which is thesame 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 ofRe local Con.‘ It proceeds on the presumption that when parliament confers on anadministration traibunal or authority, as from a court of law, power to decide aparticular question defined by the Act, conferring the power, parliament intends toconfine that power to ansering the question as it has been so defined and if therehas been any doubt as to what that question is, this is a matter for courts of lawto resolve in fulfillment of their constitutional role as interpreters of the writer lawland exponders of the common law and rules of equity’.To be sure, ouster clauses are ineffective to exclude the power of the High Courtto exercise its role as conferred on it by Art. 108 (2) of our Constitution overinferior tribunals and public authorities. It is axiomatic that all statutory powerconferred on public officers including the president are subject to supervision bythe High Court exercing its classic and traditional function of judicial review not458

withstanding the existence of an ouster clause. The Tanzania Court of Appealhas expoused that view in a number of cases Inter alia: A.G. Vrs LessinoiNdeinai & act ors (1980) T.L.R. 214All 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 theHigh Court could examine a decision to see if the rule of natural justice wereobserved in arriving at the decision; which would in turn determine whether therewas a valid decssion or any decision at all. However I have to point out that theposition now is that not only can the decision of a public authority be challagedfor 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 AllB.N 935 T>L.Identified four principles which can be used to challenge a decision of a publicauthority, and that case was cited with approval by the Tanzania Court of Appealin thecase of Sanai Murumba Vrs. Lhoro Chacha: Mwanza Civil Appeal 11.4/1990. These four principles are illegality (failure to follow the law); Proceduralimpropriety (failure to observe the principles of natural justice and failure to actwith procedural fairness); irrationality (making a decision which is mutrage is inits defiance of logic or of accepted standards that no reasonable person who hadapplied his mind to it could have made such a decision): proportionality (that theround employed by a decision-maker are no more than is reasonably necessaryto achieve his or her legitimate aims). The doctrine of proportionality has beenrecognized 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 iithis 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 notdisclose on which ground of public interest he removed the servant in the civilservice, then it is not possible to amount a challenge on his decision. Thatargument is naïve. In the Agro Industries Ltd. Case (Supra) the President did notdisclose the public interest involved when he revoked somebody’s right ofoccupancy, nevertheless the Tanzania Court of Appeal took into account thehistory of the case which revealed that the revocation was made to assist apublic corporation to occupy the land in dispute in which it had trespassed intoand the court held that, that was not in public interest. In the case at handalthough the president has not disclosed as to what public interest would beserved in removing the civil service yet taking into account the history of thecase, the court at the main trial would be at liberty to consider on whether thePresident was to correct to take into account in reaching his decision the fact thatthe civil servant is question had an economic Sabato criminal case in which hewas acquitted and there were disciplinary proceedings against the said servantbut which ended in favour of the said servant. The trial court will have to consider459

as to whether the President was right to take into account these extraneousconsiderations in arriving at his decision.The courts under the dectrino of separation of powers are charged with the taskof holding the Constitution and acting as on clock on othor branches of theGovernment. In the two thomes above, I have attempted to explain how thejudiciary has rejected attempts by the Executive to overreach individual rights bythe legislation providing subjective distatonary powers and legislation ousting theJud diction of the courts. Court’s resistance to attemps on the part of the politicalbranches of the government to acquire uncontrolled power, is highlycommendable and shows that they are fitted to provide an effective checkagainst oppressive exercise of power by the Executive. Sir William Wade, in‘Constitutional Fundamentals’. Hanlyn Lectures, and series, (1980) at pp. 83-84has commended the court’s role by stating:‘to exempt a public authority from the jurisdiction of the courts of law is) tothat extent, to grant dictatorial power. It is no exaggeration therefore, to describethis as an abuse of the power of Parliament, speaking constitutionally. This is thejustification, as I see it, for the strong, it might even be said rebellious standwhich the courts’ have made against allowing Acts of Parliament to createpockets of uncontrolled power in violation of the rule of law. Parliament is undulyaddicted to this practice, giving too much weight to temporary convenience andtoo little to constitutional principle. The laws delay, together with its uncertaintyand expense tempts government to take short cuts by elimination of the courts.But if the courts are prevented from enforcing the law, the remedy becomesworse 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 adomocratice government. It should be noted that courts are in a position ofindependence and so they are often better placed than the President or anyother public authority to assess the weight of competing aspects of the publicinterest.Finally the State Attorney Mr. Nyabiri advocating for the President, argued thatthe previsions of sections 5 and 7 of the pensions Ordinance, Cap. 371 bar theplaintiff to present his claim in Court. Both those sections provide that ‘nc officewho has been retired in public interest has an absolute right to compensation forpast services and to other allowances he is otherwise entitled to’ The shortanswer to those provisions is that they are unconstitutional and so void. They aredenying a person the right to renovation for work done contrary to Art. 23 (1) ofour Constitution. Art. 24 (2) providing for the right to respect is violable, is thatbasic right state that no one may be deprived of his proparty without authority ofthe law which shall set out conditions for fair and compensation. The law that isimprogned is not good law and is not saved by Art. 3. (2) of our Constituionbecause it is arbitrary and without adequate safeguards against any such460

arbitrary decision. And it offends the principle of proportionality it is not show thatit is necessary to achieve a legitimate Court of Appeal in the cases of Kukutia OlePumbun 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 thatstate agencies are required to direct all the policy and business towards thepreservation and compliance with the basic law of the land, that is theconstitution. And Art. 26 (1) of our Constitution directs that every person includingthe President is obliged to comply with the constitution. It is therefore surprisingto note that the President has opted to obey the unconstitutional PensionsOrdinance which affords the basic law officials that under section 5 (1) of theConstitution consequential Provisions) Act. No. 16/1984 they have to regard all tobring them into conformity with our Bill of rights Act. No. 15/1984. So all lawspassed before 1-3-1985 should not be taen at their face value, but should only beobeyed if they don’t against the basic law of the land, the Constitution. Thepresident of the United Republic should be in fore-fron to disgard all the laws thatare in brown of the constitution, such as the pensions Ordinance. As applydemonstrated above the Pensions Ordinance violates the right and the right to ajust remmoration for work done. Therefore under section 5 (1) of Act No. 16/1984and Art. 64 (5) of our Constitution, I declare the Provisions of section 6 and 9 ofthe Pensions Ordinance to be void. I hold that the identify is at liberty to presenthis claims before this court.IN THE HIGH COURT OF TANZANIAAT ARUSHAMISCELLINEOUS CIVIL APPLICATION NO. 11/92(c/f Misc. Civil Appl. No. 264/91 11/0)MOSES J. MWAKIBETE ESQ.APPLICANTVERSUS1. THE PRINCIPAL SECRETARY (ESTABLISHMENT2. THE ATTORNELY GENERAL OF TANZANIA .RESPONDENTSRULINGBEFORE HON. LUCK.461

In 1973 the applicant, Moses J. Mwakiboto, was appointed a Judge of the HighCourt of Tanzania. In April, 1991 he became the subject of inquiry by acommission of commonwealth judges appointed by the President under theprovisions of Art. 110 (6) (a) of the Constitution of the United Republic ofTanzania, 1977. Pursuant to the provisions of Art. 110 (6) (b) the Commissionwas required, after its inquiry, to report on its findings to the President and toadvise 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 theoffice 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 citedin this ruling.Upon receipt of Annexture “A”, the applicant wrote to various government officialseither questioning the constitutionality of his retirement in the pubic interest orcomplaining against the administrative measures being taken in theimplementation of the retiromount. Of interest here are Annoxtures “B” addressedto the Principal Secretary (Dotablishments) and “B2” addressed to the ChiefJustice. There is no evidence that these letters reached their addresses or, ifthey did they were replied to. However, the applicant had also addressed letters462

to the Principal Secretary to the President and to the President himself. Andthese 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 theapplicant’s reply to the Attorney – General’s counter-affidavit), the PrincipalSecretary to the Pesident informed the applicant that the President had directedthat he be informed that his removal from the office of a judge implied hisretirement from the public service. Annoxturo “X” is the nose significatas it alluledto the Justice sandurn Commission and suggested that the President’s decisionwas pursuant to the Commission’s advice.The applicant still felt aggrieved. On 21 November he filed an application in thiscourt seeking leave to apply for the order certiorari to quash the decisionpurporting to retire him in the public interest. That was Miscellaneous CivilApplication No.264 of 1991 which I heard and granted on 16 January, 992. I alsodirected that subsequent pleadings be completed by the end of February with aview to hearing the substantive application in the month of March. Acting on thatorder, the applicant filed the present application on the same day. He wascontesting the constitutionality of the decision to retire him in the public interestas communicated in Annoxturo “A” and praying that it be quashed.463

On 21 February, and before the Attorney-general filed his counter-affidavit, thePrincipal Secretary to the President wrote to the application a letterSNS/C.230/32/F/48 informed him that the President has, on the advice of theJustice Sandura Commission, remmod him from the office of a judge with effectfrom 13 May, 1991. This letter is annoxture “DI” to the Attorney-general’scounter=affidavit. Hence, in para. 5 of his counter affidavit, the Attorney-Generaloverred 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 theseproceedings the applicant appeared in person while the Attorney-General wasrepresented by Mr. J.D. Mono, a Senior State Attornoy.When we first not I noted that the applicant’s affidavit was not accompanied by astatement as I was used to see in applications of this kind. The applicantsubsequently filed a Mr. Mono filed a counter – statement but the applicantrefused to accept a copy of the letter. He apparently did so because it gaveformal notice of a preliminary objection to the application basing on para.5 of theAttorney-General’s counter-affidavit. Nevertheless, the applicant agreed tocontinue with the hearing. At the commencement, therefore, Mr. Mono wasallowed to arque the preliminary objection to which the applicant ably andexhaustively replied, and this ruling is on that subject.464

I heard long and interesting arquments from both sides but at this juncture I willdo no Moro than summarize these arquments. Mr. Mono’s central arqument wasthat 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 thecourt that in taking this step the Government had positively responded to theapplicant’s complaint and prayer by rectiying as he put it , “the mischief ormisdirection or non-direction or illegality” inherent in Annexture “A”. He submittedthat the applicant’s application had consequently become academic and shouldbe struck off. In reply the applicant contented that Annexturo “DI” wasinadmissible 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 thesame Act, the Government was stopped from abandoning Annoxture “A” anddenying the truth of it. Finally, he assorted that Annexture ‘DI” was not issued ingood faith, first, because his letter in annoxture “B2” “B!” and woro not replied toand, secondly, because he was not furnished with the commission’s report toenable him weighthis rights under the sastitution. The applicant referred to othermatters, some with a boaring on the note of the application, upon which I may becomplied to comment. I also prepose to address Mr. , Monos reaction to theapplicant’s arguments at the appropriate stage later.465

It should be observed at the outs to that the Government concelors thatAnnoxture “A” did not comply with the law. As already stated, Mr. Monocharacterized 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 theConstitution which suggests that a judge can be retired in the public interest, sothe wording of Annoxturo “A” was anillegality correctable as and whondiscovered. “’The Government is to be commended for this concession; and, incontemplation of this, it is not merely tempting but L think desirable todemonstrate the extent to which the concession was justifiable, For this purposeand for case of reference later I will first set out the contentious paragraph inAnnoxture “A”. it states;Nimeagizwa nikuarifu kuwa Rais,Chini ya ibara ya 110(5), (6) na (7)Ya Katiba ya Jamhuri ya Muungano waTanzania, a a..katika kaziYa Ujaji kwa kukustaafisha kwa manufaa yaUmma 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 the466

public interest; second, it is the apparent confusion between removing a judgefrom 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 forthe retirement of a person from judgeship in the public interest; on the contrary, itexpressly prohibits such a step. Art, 151 (2) (f) provides:(2) For the purpose of interpreting the provisions of this constitution, the followingprinciples shall apply, namely:-(a) .., (b) (c) .(d) (d) ..)c)..(f) reference inthis Constitution to the power to remove the holder of an office in theservice of the Government of the United Republic from his office shall beconstrued as including references to any power conferred by anylegislation toProvided that nothing in this principle shall be construed as conferring on anyperson power to call upon any Justice of Appeal, a Judge of the High Court of theController and Auditor-General to retire from his office.The proviso to the provision unequivocally prohibits the exercise by any personof power to retire a judge, and it follows that any purported exercise of suchpower would be ultra vires the constitution. Perhaps it should be added that there467

are four ways under the Constitution in which a High Court judge may coase tohold office: by vacating office upon attaining the age of sixty years pursuant toArt. 110 (1); by electing to retire from the service of the United Republic at anytime after attaining the age of fifty-five years pursuant to Art. 110 (2) ; by beingremoved from office pursuant to the provisions of Art. 110 (7); and by resigningfrom 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 ofa judge. It should also be mentioned that these events do not necessarily havethe name implications on the future of the judge concerned, but I guess that I amnot called upon to discuss that subject here, I can only allude to it in the limitedcontext of the second anomaly to which I will now turn.It has been pointed out that the contentious words in Annoxturo “A” also suggesta confusion between removal from office and being retired from the publicservice. 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 thatwhile the objective appears to have been to remove the applicant from office, itwas supposed that the mechanism for realizing that objective was by retiring him.I apprehend that this notion arose from the mistaken albeit innocent belief thatremoval from office and being retired implied the same thing. And I amstrengthened in this view by the very words of exhibit, “C” and Annoxturo “A”. in468

the former the Principal Secretary to the President informed the applicant, amongother things. In the latter he again said;Rais aliagiza uelezwe kuwakuondolewa kwako katika kazi ya Ujajikwa maa na ya kustafishwa katika Utumishi wa Umma.In both cases it literally translates; “.you should be informed that youremoval from the office of a Judge implies your being retired from the publicservice. “I think, with respoot, and as now happily conceded, this was anorronous appreciation of the concept of removal as excavated in Art. 110 (5), (6)and (7) . Throughout these provisions removal is exclusively directed to the officeof a judge; in other words, it is with reference to removal from the office of ajudge only but not to the termination of a appoint out in the public sericegenerally. There is a wast difference between removal from a particular officeand retirement from the public service. This is by no means a theoreticalconjecture but is capable of demonstration from the Constitution in the mamor ittroats the expression “effice in the service of the Government of the UnitedRepublic.,’ In Art. 151 (1), this expression is defined thus;“Office in the service of the Government of theUnited Republic” shall have the Ordinary meaning of that expression andincludes service in the Armod469

Forces of the United Republic and in the Polico ForceOr any other force established by law.Giving the expression its ordinary imeaning, it is evident that it oncompasses thewhole spectrum of employment in the Government. To be retired from the publicservice is, therefore, a wider stop and a much moro serious affair than moroly tobe removed from a particular office, like the office of a judge which Art. 110(7) isall 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 thatoffice, ether by reason of mental or bodily infirmity or for misbehavior. And whileso designed for that limited purpose it cannot, locally, be substitutes with orexpress through retirement from the public services, that being a different stopaltogether. It follows from this dscunnigs that , onece again,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 theirmaking and content, my be seen as tonlign to influence the decision of the courton 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 thisdocument tends to influence the decision of this Court on any disputed fact. It isnot in dispute, but actually acknowledged, that Annexture “A” was written to theapplicant; additionally, it is not in dispute that Annexture “A” purported to retirethe applicant in the public interest, if that, too, should be regarded as a questionof fact. Annoxture “DI” does not seek or tend to influence the decision of theCourt on any of those matter. On the other hand, however and as submitted byMr. Mono, the question whether or not the applicant was properly retired in thepublic interest, which question Annoxture “DI” seeks to put to rest, is not aquestion of fact but one of law. In my judgment where a statement does not tendto establish a disputed fact and/or where it import is on matters of law, such astatement would not be excluded by section 34C (3). For this reason, I am471

unable to agree with the applicant that Annoxture “DI”. is excluded by thisprovision.The applicant also submitted that Annoxture “DI” ought to be excluded on thedoctrine of estoppel. He cited the previsions of Section 123 of the Evidence Actto 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 andto act upon such belief, neither he nor his representative would be allowed, inany suit or preceding between himself and such person or his representative, tolony the truth of that thing. He pointed out that Annoxture “A” was an intentionaldeclaration by the Government to the effect that he had been retired in the publicinterest and that, believing the declaration to be true, he ated upon it bycommuning these processing. In the circumstances, he argued that theGovernment was estopped from denying the truly of Annoxturo “A” by purportingto substitute Annoxturo “DI” for it. Mr. Mono responded by pointing out theessential elements of stopped hitch he could not see in this case, and bysubmitting 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, theCourt of Appeal for Eastern Africa observed (at p. 317) that as the IndianEvidence Act, which then applied to Mainland Tanzania, was designed to cover472

the whole field of the law relating to evidence, and stoppel being a matter ofevidence, 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 tojustiofy the plea in the context of S.123 of our evidence Act. The import of s.115of 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 personwho was induced to act; and the principle on which the law and the statute restis, that it would be most inequitable and unjust to him that if another, by arepresentation made, or by conduct amounting to a representation, has inducedhim to act as he would not otherwise have done, the person who made therepresentation should be allowed to deny or repudiate the effect of his formerstatement, to the less and injury of the person who acted on it.As can be gathered from this passage, stoppel is constituted by three essentialelements: first, a tacit representation by one person to another: secondly, anintention that the representation should be acted upon by that other person:thirdly, action by that other person to his detriment should the make of therepresentation 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 therepresentation from denying the truth of it.Does the applicant’s case disclose the three elements as just set out? It is notdisputed that the government made a tacit declaration to him that he had beenretired in the public interest. There can be no doubt, either, that the declarationwas made with the intention that it should be acted upon by him. Two of the threeelements are thus established. I think, however, that a problem arises with and tothe third element, namely, whether the applicant actel upon the declaration to hisdetriment by reason of government action in withdrawing Annoxture “A”. Theapplicant claimed that he acted on the declaration by filing the application and, if Iunderstood his injection at one stap, that he suffered loss by way of terminatedsalaries.I think this is all interesting. I say so because, in the first place, it cannot be sailthat when he filed the application that he did so by way of acting one thedeclaration in actual fact he did so to dispute it. He was aggrieved by it, heconsidered it illegal, he dsired it quashed. It think I am correct in saying thatwhom the statute proides and the courts lay down that the declaration should beactel upon they mean to say that it should be taken advantage of. In the casebefore 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 inthis view, and I think I am, it means that the applicant has never acted upon the474

declaration except in a negative some. Further, it is not the act of filing theapplication that led to the applicant being denied his salaries. That was adevelopment arising from the fact of his retirement and it occurred long before hefiled the application. In my view of the matter as a whole, the applicant has neveracted on Annexture “A” as by statute contemplated and has never suffered lessor injury by reason of its withdrawal. Ironically, it may woll be that he couldprobably to said to have actop on the document if he had proceeded to draw thepension 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 thateven at this juncture stoppel does not avail itself.There is yet another dimension to this subject. It was submitted by Mr. Mono, andrightly so, that stoppel does not lie against a statute. Where the law enjoins theperformance of a duty and even proscribes the made of its performance,ostoppel cannot be invoked to prevent its performance or its performance in themanner prescribed. It is also settle that estoppe cannot be invoked to prevent thecorrection 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’slaw of Evidence, at p. 1140, which I desire to cite.Where a statute requires a particular formality, no stoppel will cure the defect. Aparty’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 letteron the basis of such wrong interpretation does not stop the Government fromclaining enforcement of the p rovisions of a statute.It was similarly said by Lord Maughars in Haritimo Electric Co. Ltd versusGeneral Diaries Ltd. (1937) 1 AU E.R. 748,755 that,where the statute imposes a duty of apositive kind, not avoidable by the performance ofany formality , it is not open to the defendantto set up an stoppel to prevent it.,.It is immaterial whether the obligation (to obey theStatue) 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 Iwill summaries. The appellant company had imported into Tanzania over aperiod of one year quantities of sodium sats of fatty acids in pellet form withoutpayment of customer duty pursuant to a written assurance by the Commissionerof 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 tariff476

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 chemistfor testing. As a result of the tests the appellant company’s clearing agent wasinformed that the substance was after all liable to duty under tariff item 105 of theschedule. In a bid by the Commissioner to recever the unpaid duty the appellantcompany, inter alia, pleaded estoppel from claining against the company the dutywhich should have, been paid but for the erroneous exemption. At the trialGerges, C.J. held that although in normal circumstances the doectrtine ofestoppel would apply, there was no stoppel against a statute. He was of the viewthat the commissioner was bound to collect the unpaid duty, because the factthat he had erroneously classified the chemical could not stop him from carryingout his duty whom he discovered the original error . Although the decision was onappeal reversed on another ground, the Court of Appel did not differ withGeorges, C.J. statement of the law relating to stoppel. In a dissenting judgmentlaw, J.A. said (at p.495): “.. I understand (counsel for the appellant) toconcede that the loarned Chief Justice’s conclusions on the issue of stoppel wereright, as in my view they undeoubtedly were “For a brief but more recentpronouncement 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 theGovernment served the applicant with Annoxturo “A” purporting to retire him inthe public interest. This step was not only illegal in terms of Art. 151 (2) (f); it wasalso contrary to the provisions of Art; 110 (70) which provide merely for the477

emoval 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 hasno discretion, whether in substance or form, but simply to remove the judge asadvised. Any other measure device or strategy like retiring the judge in the publicinterest, or purporting to remove him from office by retiring him from the publicservice, would offend the express provisions of the constitution and be void. Butin the light of the authorities cited above, the Government cannot be preventedfrom insisting on the correct interpretation of the law and from correcting sucherrors. In the instant application, therefore, Annexture “DI” was validly issued toset right the constitutional broach perpetrate in Annoxture “A” And for my part, itmatters not that this was done after the proceedings were commenced. I holdthat court proceedings cannot be used to compel anyone to persist in defying thelaw. 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 Iunderstood the applicant to ground this charge in the fact that he received noreply to Annoxture “BI” or “B2”, and was not provided with a copy of theCommission’s report. He claimed that these omissions vitiated Annoxture “D1”. Ithink 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 theaddresses and there would be no point bolabouring the issue. What is probablysignificant is the applicant’s decision not to among to his application the letters headdressed to the President and to the Principal Secretary to the President. As478

egards the commission’s report, the commission was by law required to report tothe President only. Art, 110 (6) (b) which is relevant here does not provide orsuggest to the contrary My general answer to the charge is, as with the case ofstoppel, that there can be no bad faith in complying with the mandatoryprovisions of the law. Annoxture “D!” was therefore not vitiated.In sum, I have come to the conclusion that Annoxture “D1” was variedly issuedand effectively replaced Annexturo “A”. In the upshot, there is no ground uponwhich the application can be further entertained I roach this conclusion withouthesitation considering that the turn of events has occasioned to the applicant thatwhich he gallantly stood to achieve. I uphold the preliminary objection and strikeout the application. As the Attornoy General incurred no costs, I make no order inthat regard.Arusha7 th April, 1992Applicant present in personMr. Mono, S.S.A for respondents.479

K.S.K. LUCKKINGIBA,JUDGE7/4/1992.I hereby certify this to be a true copy of the originalAg. District Registrar,ArushaIN THE HIGH COURT OF TANZANIA(MAIN REGISTRY)AT DAR ES SALAAMMISC. CIVIL CAUSE NO. 3 OF 1996SAID JUMA MUSLIM SHEKIMWERI .APPLICANTVERSUSATTORNEY GENERAL .RESPONDENT480

RULLINGSAMATTA, JK:This is an application by way of a chamber summons for an order of certiorari tobring 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 isconsistent with intelligibility. June 1 1984, the Applicant was employed by theGovernment Tanzania as an Immigration Assistant. Following a Promotion, inFebruary 1, 1991, he became an Immigration officer, Grade III. In the thirdparagraph of his affidavit supporting the application, the Applicant asserts thatduring 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 thecoincidental to, the performance of his duties. No information given in thecounter-affidavit contradictory of this averment of the 2 nd June, 1995, issue of theDaily News, a government and daily newspaper, there appeared an account,among others, to the effect that the then Minister for Home Affairs had sacked 28officar of the Immigration Department, including the Applicant, for receivingbribes. Upon making inquiries about this story with his superiors the Applicantwas informed that the story was essentially false as, among other things, theMinister lacked power in law to make the reported decision. About two monthslater- on August 4, 1995, to be more precise – the Applicant received a leteer481

addressed to him by the Acting Principal Secretary (Establishments), whosebody reads, in Swahili, as follows:“Ninapenda kukuarifu kwamba, Mtukufu Raisi, amekustaafisha kwa manufaa yaUmma kuanzia tarehe 20 Julai, 1995.Amekustaafisha kwa mujibu wa Kifungu Na. 36*2) cha Katiba ya Jamhuru yaMuunganoWa 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 yaUmma, utalipwa pensheni kwa utumishi wako Serikalini hadi tarehe 20Julai, 1995”.Speaking through his advocate, Mr Nassoro, the Applicant says that thePresidents 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 inExtenso the provisions of law relied upon by the President in reaching his482

impugned decision. As expected, I will start with section 36 (2) of the Constitutionof the United Republic (hereinafter referred to as “The Constitution”). The sectionreads:“(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 UnitedRepublic, and the power of promotion; termination of appointment, dismissal anddisciplinary control of persons appointed to those offices shall be exercised bythe president, the service Commissions and such other authorities as may bespecified in respect of any office or category of offices by this Constitution or anyrelevant writer law”.Section 8 of the Pensions Ordinance (the Ordinance as amended by s. 6 of theLaws (Miscellaneous Amendment Act , 1978, provides:“8. Subject to the provisions of section 9A, no pension, gratuity or otherallowance shall be granted under this Ordinance to any officer except on hisretirement 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) thePrison Officer, Grad III, this paragraph shall have the effect as if “fortyyears” were substituted for “fifty years”, and(ii)Officers in the Police Force above the rank of constable and of orbelow the rank of sergeant and officers in the Prison service above the483

ank of Prison officer, Grade III and of or below the rank of PrisonOfficer, Grade 1, this paragraph shall have the effect as if “forty-fiveyears” were substitute for “fifty years”.(b) in the case of transfer to other public service, in circumstances in which heis permitted by the law or regulations of the service in which he is lastemployed to retire on pesnsion or gratuity: Provided that, if his service issuperannuated under the Federated Superannuation system foruniversities or similar insurance scheme, he has retired from the publicservice 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 theorganization of the department to which he belongs, by which greaterefficiency or economy may be effected;(e) On medical evidence to the satisfaction of the appropriate authority that heis incapable by reason of any infirmity of mind or body of discharging theduties 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 asprovided in the ordinance;(ff) if he retires from the public service with the consent of the President, and thePresident, by writing under his hand, declares that this paragraph shall apply tohim;484

(g) on retirement in circumstances, not mentioned in the preceding paragraphs ofthis section, rendering him eligible for a pension under the Pensions (Governorsor Dominions, etc) Acts, 1911 to 1947, of the United Kingdom or any Actamending or replacing those Acts:Provided that a gratuity may be granted to a female officer in accordance with theprovisions of this ordinance, who retires for the reason that she has married or isabout to marry, notwithstanding that she is not otherwise eligible under thissection for the grant of any pension, gratuity or other allowance”. Section 19 ofthe Civil Service Act, 1989, a legislation which repeals and replaces the CivilService Act, 1962 (Cap. 509), is in the following terms:“19.- (1) The power to dismiss and to terminate the appointment of civil servantsshall 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 regulationsmade under section 24.(d) The President may remove a civil servant from the service of theRepublic 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 inthe paragraph (c), (d) or (e) of section 8 of the pensions ordinance,485

or under the provisions of the Tanganyika (Compensation andRetiring Benefits) order in Council, 1961, or Retirement (SpecialProvisions( Act, 1962, or sub-section (2) of section 17 of theRepublic of Tanganyika (Consequential, Transitional andTemporary Provisions) Act, 1962’ or(h) The termination, otherwise then by dismissal, of the service of anypublic officer, other than the substantive holder of a pensionableoffice, in accordance with the terms of his employment or thedismissal or any person from any office on the personal or domesticstaff of the President or of any person from any office on thepersonal or domestic staff of the President or of any person holdingan office the emoluments of which are payable at an hourly or dailyrate.(i) Nothing in sub-section (1) or (2) shall apply to the dismissal of acivil servant who is an employee to whom the provisions of Part IIIof the Security of Employment Act, 1964, shall apply.(j) Nothing in subsection (1), (2) or (3) shall apply in relation to anyperson holding the office of controller and Auditor – General” Imust now proceed to quote Regulation 29 of the Civil ServiceRegulations, 1970 (the Regulations): The Regulation reads: “29 –(1) Where the Principal Secretary is of opinion that a reason existswhy an officer servidng on pensionable terms and who has attainedthe normal age of voluntary retirement, should be called upon to486

etire otherwise than on disciplinary or on medical grounds. ThePrinciapl Secretary may request the officer concerned to showcause why he should not be compulsorily retired. The PrincipalSecretary shall forward any representations made by the officer,pursuant to the notice given to him, together with his ownrecommendations to the appointing authority, who shall decidewhether or not such officer should be called upon to retire.(k) Where a principal Secretary is of the opinion that the presidentshould be invited in the exercise of the powers conferred upon himby 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 thePresident through the Principal Secretary (Establishments) suchparticulars as the President may, from time to time, by general orspecific direction, require”. Standing orders F. 35, 44 and 49 for thePublic service, 1971, read as follows:Standing Order F. 35‘F.35 All appointments at the plessure of the president – Excepting Judges of theHigh Court and the Controller and Auditor-General whose tenure of office isgoverned by the terms of the Interim Constitution of Tanzania, all other officershold their respective offices subject to the pleasure of the President of the UnitedRepublic. The pleasure of the President that any one of these officers should no487

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 orpolice officer from the public service if he considers it is in the public interest todo so otherwise than for the purpose of localization of the public service. Thedecision of the President that an officer be removed from the service in the publicinterest may be signified through the Principal Secretary (Establishments). Inwhich case no special formalities are required. The question of pension will bedealt 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 pensionsLegislation – The pensions Act (STC), Cap. 371) and the Regulations madethereunder, set out the circumstance under which a pensionable officer may electto retire or may be called upon to retire other than on disciplinary grounds. Thesegrounds 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 officerof the rank of Prison Officer Grade III in the Prisons Service may elect to becalled 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 Dpartmentto which he belongs by which greater efficiency or economy may beeffective;(d) on medical grounds;(e) On medical grounds;(f) Female officers may elect to retire on marriage, and will be granted suchgratuity or pension, if any, for which they may be eligible.”(g) Those are the privisions of law on which the President, according to thelette addressed to the Applicant by the Principal secretary (Establisments).Quoted above, based his impugned decision. I will now proceed to dealwith the contentionsaddressed to me by counsel. I hope I can summarisethose contentions very briefly without doing any injustice to them. In hisengaging argument Mr. Nassoro contended that the President’s decisionis invalid for the following reasons; (1) the basis for the decision is vaguebecause the provisions of law relied upon therein deal with matters ofemployment which are incompatible; (2) the standing orders referred to inthe Principal Secretary’s letter have no force of law as there were declaredby this court (Mwalusanya J) in James F. Gwagilo Attorney General, Civilcase No. 23 of 1993 (Unreported) to have been superseded by theConstitution and the Civil Service Act, 1989; and (3) the failure by thePresident to give reasons for his decision is fatal to the said decision: thePresident was bound in law to disclose to the Applicant the factor orfactors which, in his opinion, constituted the alleged public interest. Mr489

Songoro urged me to hold that the President’s decision is proper and inaccordance with the law of the land. He forcefully contended that theparamount words in the Principal Secretary’s letter, as far as the reasonfor the President’s decision is concerned, are the words “ amekustaafishakwa 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, andthe procedure he applied was correct and sufficient. It seems to me that itis desirable, if not necessary, that some of the general principles wich Iconsider to be relevant to the determination of the application now beforeme should be distinctly set out. In my opinion, the following are theprinciples:(1) The common law principle that a civil servant is dismissible atpleasure (see Shenton V. Smith (1895) A.C. 229 and Gould vStuart (1896) A.C. 575) is not part of the law of this country: seesection 36 (2) of the Constitution as read together with section 26(1) of the said Constitution, and James F. Gwagilo’s case supra. Inthis country, civil servants are dismissed for misconduct only: seesection 19 (2) of the Civil service Act, 1989. when a civil servant isdismissed cause must be assigned. The English common lawdoctrine of “service at pleasure” has, as, I hope, amplydemonstrated above, no place in the law of this country. The saying490

“Whatever pleases the emperor has the force of law” forms no partof our law.(2) While in England the courts are not concerned with the Civil serviceas such, because the civil servant there is in law only a servant ofthe crown, dismissible at the pleasure of the Queen without noticeor compensation, in Tanzania the civil servant has some legalrights, including the right to be afforded an opportunity to showcause why he should not be dismissed from the service which areenforceable in the courts(3) No power conferred by law on a public leader or officer is absoluteor limitless. Every such power must be exercised in good faith andin accordance with the Constitution and other laws. Any assertionthat presidential powers brook no limitation would have no basis inlaw.(4) Compulsory retirement of a civil servant or his removal from servicein the public interest may be challenged in this court on, amongothers, any of the following grounds:(5) (a) the legislation under which the impugned decision was made isunconstitutional;(6) the decision is mala fide, i.e., it is actuated by malice or somepurpose other than that for which it is authorized by the law: malicewould be held to exist where, for example, the alleged public491

interest, where removal is concerned, is founded upon non-existentfacts:(7) the decision is perverse, that is to say, one which no responsibleman would have made.(8) The standing Orders for the Public service have no legislativeeffect; they are meant for departmental and administrativepurposes: see L.g.Lazaro v Josephine Mgombera Civil Appeal No.2 of 1986 (C.A.) (unreported). Those Orders form the internal law ofthe Civil Service. Having stated these principles, I proceed to askmyself whether the impugned decision of the president is not validin law. My mind is free from doubt as to how that question ought tobe answered. I agree with Mr Nassoro that the President’s decisionis unsupportable in law. I hold that view for the following reasons:(1) The letter from the Principal Secretary cites provisions of law wich areincompatible, that is to say, provisions which do not go together. Whereasthe 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 theRegulations and Standing Order F 44 is based on the general requirementof public interest, the removal under standing order F.49 © mustspecifically be based on the need of, to quote the Order, “facilitatingimprovement in the organization of the Department to which (the civilservant) belongs by which greater efficiency or economy may beeffective”. By being based on the two sets of provisions the President’s492

decision has, I agree with Mr Nassoro, caused the Applicant considerableembarrassment.(2) The citation, the Principal Secretary’s letter, of Standing Order F. 35 asbeing one of the legs on which the President’s decision was intended tostand suggests, very strongly, that in making, or coming to, his decisionthe president was under the mistaken belief that the Applicant held hisoffice in the Immigration Department at his (the President’s) pleasure. Ihave, I hope, sufficiently demonstrated that in this country civil servants,including immigration officers, do not hold office at the pleasure of thepresident. It is perfectly correct to say that a civil servant’s security oftenure is lesser than that of a judge, but it is equally correct to observethat security is not as limited as is implied by the Principle Secretary’sletter. Standing Order F. 35 cannot be valid in law, because it isinconsistent with the provisions of sections 22 and 36 (2) of theConstitution 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 publicinterest. Neither section 19 of the Civil service Act, 1989 nor Regulation 29of the Civil service Regulation, 1970, confers on the President power toretire a civil servant in the public interest. The provisions speak ofremoval, and not retirement, in the public interest. It speaks of removal.Paragraph (d) of section 8 of the Ordinance refers to compulsoryretirement for the purpose of facilitating improvement in the organization ofthe department to which the servant belongs, by which greater efficiency493

may be effected. Neither what is stated in the Respondent’s counteraffidavitnor what fell from the lips of Mr Songoro at the Bar during thehearing of the application gives even a faint suggestion that the purportedtermination of the Applicant’s employment falls under one of thecategories of compulsory retirement mentioned in section 10 of theOrdinance, as amended by s.7 of the Pensions Law (Miscellaneousamendments) Act, 1978. When all this is taken ito account, it must becorrect to say, as I do, that the use of the word “amekustaafisha” in thePrincipal Secretary’s letter to the Applicant causes even more confusionas to exactly why the President acted in the manner he did with regard tothe Applicant’s employment.Since I am of the settled opinion that the above three grounds constitute asufficient warrant for faulting the President’s decision, I do not find it necessary toconsider Mr Nassoro’s argument that, when ordering the removal of civil servantfrom public service in the public interest, the President as bound in law to givereasons disclosing factors which, ihis opinion, constituted public interest in theparticular case. In James F. Gwagilo’s case supra, Mwalusanya J. was of theclear opinion that such reasons must be given . Though the point is not anuninteresting one, I do not, for the reason I have given, think it right to lengthenthis ruling by discussion it.494

Before I part with this application, I would like to say a word or two on the treapplication of the provisions of section 23 of the C ivil service Act, 1989. Thesection reads “23 – (1) No proceedings shall be brought in any court on groundonly that the provisions of this Act, other that the provisions of sub-section (2) ofsection 3 and Part V, have not been complied with; but nothing in this sectionshall apply to any criminal proceedings for an offence against any of theprovisions of the Act.(2) The question whether –(a) The President validly performed any function conferred on him by section36 of the Constitution or by this Act;(b) The commission or other delegate has validly performed any functions theexercise of which has been delegated or deputed to it or him, shall not beenquired 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 notapply in relation to that dismissal unless prior to the dismissal, theprovisions of section 19 (2) are complied with”.I was inclined to think that I was not deterred by these provisions fromentertaining the instant application. In my opinion, those provisions do not takeaway the supervisory jurisdiction of this Court where it is alleged, as is the casein the present application, that a decision made by the President under section36 of the constitution and the provisions of the Civil Service Act, 1989, is invalid495

in law. As I understand the law, if a decision purportedly made by an authoritywhich falls under the supervisory jurisdiction of this Court is challenged on theground that it is not valid in law or it is null and void it becomes the bounden dutyof 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 ofappeal or revision. When it exercises that jurisdiction this Court does not sit as asuper-exercises. Thus, when it issues an order of certiorari the court does notsubstitute another order in the place of the quashed order, but it removes thatorder out of the way, as one which should not be used to the detriment of anyindividual: see Walsall Overseers v Railway Company (1978) 4 App. Case 30,39. Where an authority exceeds its jurisdiction, its decision will be regarded bythe courts as invalid in law and beyond the protection of any exclusionaryformula: 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 thesettlement of those disputes.For the reasons I have given, I hope not at an inordinate length, I allow theapplication and quash the President’s decision purporting to retire the Applicantin the public interest. The Respondent is to pay the Applicant’s costs in theapplication.B.A SamattaJAJI KIONGOZI496

7. REMEDIES1. Ajit Gordhan v Director of Immigration, Misc. Civil Cause, Misc.CivilCause 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 19825. Lausa & 106 others v Minister of Lands & NBC, Civil Appeal No. 15of 1994 (CA)6. Mv Home Office & Anor, (1993(3 ALLE.R 5377. Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. CivilAppeal No. 3 of 1994 HC at Songea.8. Obadiah Saleh v Dodoma Wine, Civ Case No. 53 of 1990 HC atDodoma9. Patman Garments v Tanzania Manufacturers (1981) TLR 30310. Simeon Manyaki v Executive Committee and Council of IFM, Misc.Civil Cause No. 42 of 1984497

11. Vidhyadhar Chavda v Director of Immigration Service Misc. CivilCase No. 5 of 1995, HC at Dar es Salaam.7. REMEDIES12. Ajit Gordhan v Director of Immigration, Misc. Civil Cause, Misc.CivilCause 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 198216. Lausa & 106 others v Minister of Lands & NBC, Civil Appeal No. 15of 1994 (CA)17. Mv Home Office & Anor, (1993(3 ALLE.R 53718. Nyirabu & Anor. V Board, Songea Boy’s Sec. School Misc. CivilAppeal No. 3 of 1994 HC at Songea.19. Obadiah Saleh v Dodoma Wine, Civ Case No. 53 of 1990 HC atDodoma20. Patman Garments v Tanzania Manufacturers (1981) TLR 303498

21. Simeon Manyaki v Executive Committee and Council of IFM, Misc.Civil Cause No. 42 of 198422. Vidhyadhar Chavda v Director of Immigration Service Misc. CivilCase No. 5 of 1995, HC at Dar es Salaam.AT DAR ES SALAAMMISCELLANEOUS CIVIL APPLICATION NO. 31/91In the Matter of an application for leave to apply for orders of certiorari andMandamus by AJIT KUMAR GORDHANANDIn 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 (CitizenshipLaws) Act No. 24 of 1970.BETWEENAJIT KUMAR GORDHAN .APPLICATIONANDTHE DIRECTOR OF IMMIGRATION ..RESPONDENT499

RULINGKYANDO, J.This is an application for leave to apply for the prerogative orders of certiorari andMandamus. It is sought by the applicant to apply to “quash the decision andorders of the respondent dated 30 th December, 1990, and 19 th Fevruary, 1991,declaring the applicants prohibited immigrants and an order compelling therespondent to deal with the applicant’s matters, if he still wishes, in accordancewith 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 ofthe respondent’s order against the first applicant pending the determination of theapplication.”The application is made under s.17 (2) of Part VII of the Law Reform (FatalAccidents and Misc. Provisions) Ordinance, cap. 36, as amended by Act 55 of1968, and section 95 of the Civil procedure Code, 1966. When it was filed for thefirst time, it was supported by an affidavit sowrn by Mr. Mchora, who is counselfor the applicant in this application. I directed his clients personally to swear theirown affidavits in support of the application, and this was done. But then in theaffidavits, while it was alleged tha the Minister for Home Affairs was the one whohad signed the “notice to Prohigited Immigrant, “which notice is the onecontaining the decision or orders sought to be quashed by certiorari and a copy500

of which was annexed to the affidavits, the notice itself showed that it had in factbeen 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 entirestructure of the case. Originally the applicants were three, viz., AJIT KUMARGORDHAN, MRS BARTI GORDHAN and UDAY KUMAR GORDHAN. Mr.Mchora asked to withdraw the latter twos’ applications and this was done, so thatwe now remain with only AJIT KUMAR GORDHAN as the applicant in thisapplication. Secondly, in its original form the application was against the Ministerfor Home Affairs (First Respondent) and the Director of Immigration against thefirst respondent, the Minister for Home Affairs. This was granted and now theapplication 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 forprerogative orders such as the present one, other reliefs or remedies such as thesecond one referred to above, i.e. an order for temporary suspension, which ineffect aounts to an order of temporary injunction, could be joined, I asked him tolook into the point and give me his view on it on 2.5.91 On 2.5.91 Mr. Mchorainformed me that his research had not established anything, one was or theother, on the point. He submitted, however, that for the ends of justice, I shouldgrant the second prayer in the Chamber summons also so that the applicant isenabled to be present in the country to prosecute this application – if leave to fileit is granted.501

I am not certain of the sufficiency of Mr. Mchora’s research on the point I askedhim to look into. There are enough materials and decided cases which wouldhave 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 ofAdministrative Action” Appendix x1; (19955) 18 MLR 138; (1976) 92LR 334 andRJE Gorden “Judicial Review: Law and Procedure” (1985).The reason I posed the point to Mr. Mchora is because the law Reform (FataAccidents and Miscellaneous Provisions) Ordinance (Amendmont Act, 1968, thesource of the orders of mandamus, certiorari and prohibition in Tanzania,mentions only these three orders. It requires no mentioning, of course, that we inTanzania have adopted the idea of these orders from England. In his book“Administrative Law” 2 nd . Edn., clarendon Press, Oxford (1917), Prof. Wadecomments as follows at p. 127 on the point in so far as the position in England onthese remedies is concerned:-“.prerogative remedies cannot be sought alternatively to other remedies.A plaintiff often needs to ask for remadies in the alternative, for instance fordamages or an injunction or but, as the court may determine. But the prerogativeremedies scan be sought only by their own peculiar process, which reflects theirpeculiar nature..They cannot, therefore, be married to any other form ofaction.”(Underscoring supplied).502

The above position was enshrined in such decisions as that in underhill andanother v Ministry of Food (1950) 1 All Er 591 and it is the position whichappears to be in accord with the provisions of our Law Reform (Fatal Accidentsand Miscellanenous Provisions) Ordinance (Amendment) Act, 1968. But theposition as it obtains under the Act was considered by Mapigano, J., in rulingwhich he gave in (HC) Dar Es Salaam Registry) Misc. Civil Cause No. 127 of1989 (In the Matter of the Mining Act, 1979, section 50 and in the Matter of anapplication for orders of Certiorari and Corporation (2 nd applicant) and OutkumpuOy (3 rdapplicant) 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 lawremedy, and the position is that prerogative remedies cannot be soughtalternatively to such remedy or be married to any other form of action. They canbe 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 interiminjunction in proceedings for prerogative remedies where it has been deemedjust and convenient to do so, natably in immigration matters to restrain theauthorities from repatriecting or expelling people from the country pending thefinal 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 beunduly impeded by the issue of such injunction in a particular case should be oneof the points to be considered by the court in deciding the question whether it isjust and convenient to grant the injunction.I hold that the application for interim mandatory injunction is maintainable in lawin Tanzania in cases such as the instant one.”This decision by Mapigano, J., with which I respectifely agreed amelioraters to adegree, the handicaps which have traditionally at tended prerogative remadiesand 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 thepassage 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 positionhas now been radically altered. The change was made in 1977, about ten yearsafter the year of the edition of Prof. Wade’s book I have referred to above. In theirbook, “O. Hood Philips’ Constitutional and Administrative Law”, Sweet & Maxwell,(7 th Edn) O. Hood Philips and Pacel Jackson at p. 683 explain the change andthe present position thus:-“Before the reforms of 1977 litigants who resorted to the supervisory jurisdictionof the High Court had to choose which order they wished to seek. A prerogativeorder could not be sought together with or as an alternative to other remedies504

such as damages or on injunction. The ambit of certiorari and prohibition waslimited to bodies performing judicial function, a concept of uncertain width. Othercharacteristics (and defects) of the orders led litigants increasingly to prefer theremedies of the injunction and the declaration. Following various proposals forreform, the Rules of the Supreme Court were amended in 1977 to provide aprocedure known as an application for judicial review which enables a litigant toseek relief while leaving to the Court the decision as to which particular remedy isappropriate.A litigant may proceed by way of an application for judicial review where theremedy sought is (i) an order of certiorari, prohibition or mandamus or (ii) adeclaration or injunction. The latter remedies may be granted on an applicationfor judicial relief if the court considers it just and convenient to do so havingregard (a) to the nature of the matters in respect of which relief may be grantedby way of certiorari, prohibition or mandamus, and (b) the nature of the personsand bodies against which relief may be grented by such orders .. A claim fordamges may be include in on application for judicial review. Where the Courtconsiders that the proceedings should have been commenced by writ it mayorder them to continue as if so commenced. To be entitled to seek judicial reviewthe applicant must have what the court to be a sufficient interest’ to the matter towhich the applicant relates.”The “sufficient interest” test replaces the locus standi “test which applied prior tothe reforms. The learned authors of “O. Hood Phillips’ Consitutional and505

Administrative Law” also point out, at p. 682, that the reforms were givenstaturory recognition by the supreme court Act, 1981, section 31 (They had beenoriginally introduced (in 1977) by adding a new Order 53 to the Rules of theSupreme court. These reforms represent a great advance in England on thepoint under consideration herein. Under the Law reform (Fatal Accidents andMisc. Provisions) Ordinance (Amendment) Act, 1968, the Chief Justice is tomake rules providing for the manner in Tanzania of applying for the orders whichthe Act provides for, i.e. the orders of prohibition, mandamus and certiorari. Tomy knowledge, and as Mapigano J., also point out in his ruling I have reffered toabove, up to now the Chief Justice has not made the rules. It is hoped that if andwhen he makes them he will adopt the very reformed and flexible procedureobtasining in England at the moment, i.e. the procedure for applying forprerogative 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 Chambersummons) as sought as a second prayer in this application can be joined with aprayer or application for a prerogative order or orders, subject of course, toconsiderations of convenience and justice.506

Should the prayer then be granted in this case? It is, as is clear, an immigrationcase, cases which by practice in Tanzania, as Mapigano, J., notes in his ruling,temporary injunctions pending determinations of applications for prerogativeorders are commonly granted. The documents relating to the application (Suchas the affidavits) by telefax. I think therefore that it is just and fair that he shouldbe allowed to be present in the country pending the determination of theapplication 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 fororders of certiorari and “an order compelling the respondent to deal with theapplicants matters, if he still wishes, in accordance in the law” as.507

TANZANIA LAW REPORTS (1987) T.L.R.ATHE ASSISTANT REGISTRAR OF BUILDINGSFREDRICK G. KIBWANACOURT OF APPEAL OF TANZANIA (Mustafa andOmar. JJ..A. & Mapigano. Ag. J.A)B29 August, 1987 – MWANZAAdministrative law – Issue of order of certiorari – Conditions. Land law – Landlordtenant 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 thetency of the respondent. A prayer for the order of certiorari to issue was grantedby the High Court. The decisionD terminating the tenancy of the respondent was quashed and he was reinstatedas the lawful tenant of the premises. The Assistant Registrar of Buildingsappealed 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 relationshipbetween landlord and tenant – relationship of commercial or business nature.Recourse to a court of law to adjudicate on breaches of contract would be abetter procedure.F Appeal allowed.508

No cases referred to.Omar and Mustafa, JJ.A. and Mapigano, Ag. J.A.: ThisG appeal emanated from an application by Fredrick G. Kibwana, now therespondent , against the Assistant Registrar of Buildings, the appellant for theorder of certiorari to issue in order to quash the decision of the AssistantRegistrar 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 wasquashed and he was reinstated as the lawful tenant of the premises.Against this decision of the High Court the Assistant Registrar of Buildingsappealed to this court. The most important ground of appeal (and there areeleven of them) was that the order of certiorari. was bad in law. Also the learnedjudge misdirected himself on the fact by holding that the respondent had noalternative remedy available to him.The learned judge quoted para 147 of Halsbury’s Laws of England which statesthat certiorari “will issue to quash a determination for excess or lack of jurisdictionor error of law on the face of record or breach of the rules of natural justice orwhere the determination was procured by fraud , collusion or perjury.”It this case the learned judge held that since the tenant was not served with anydemand notices for arrears of rent or letter of notice to quit the premises, thetenant 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 adiscretionary remedy for the courts to issue, it cannot be issued in this casewhere there is already a contractual relationship between landlord and tenant – arelationship of a commercial or business nature. The recourse to the courts oflaw 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 rulingmade by the High Court. I would award the costs of the appeal to the appellant.510

IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMMISC. CIVIL CASE NO. 141/94N.M.C. APPLICANTVERSUSHAMISI JUMA & 90 OTHERS 1 ST RESPONDENTRULINGMACKANJA 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 theywere found to constitute labour suplusage in consequence of which they wereretrenched. It is also beyond controversy that they kept quiet after theredundancy they complain of was effected until the 24 th day of February, 1992,when they lodged their complaint before the labour commissioner. There wastherefore a period of eight years which separaters the two events. They were atthat time being advocated for by the Legal Aid Committee of the Faculty of Lawof the University of Dar es Salaam. Their grievances were forwarded to theMinister responsible for labour (the minister) who gave the green light to theIndustrial Court to inquire into the trade dispute. An inquiry was indeedconducted and a report, as per law, was made available to the minister. Upon thereasons he gave the minister decided to order the re-instatement of the 91511

applicants with full benefits. That decision was sent to the Industrial Court whichregistered it, an act which transformed it into an award of the Industrial Court. Aswe 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 employerhaving 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 intothis court and quash the minister’s decision.According to the practice of this Court the application is supported by and thestatement which contains the evidence and the grounds, respectively, on which itis based. By reading the statement one may also notice the relief’s which arebeing sought. It may be opportune at to point out that at the close of thepleadings learned counsel for both were directed to file written submissions. Thatthey 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 questionthe constitutionality or otherwise of section 9B(1) of the Industrial Court ofTanzania Act, No.41 of 1967 as repealed and replaced by the Permanent LabourTribunal (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 awardof the Industrial Court final section 9B(1) is unconstitutional. By reason of that512

alleged circumstance, it is further contended that the Minister’s decision is notintra vires his powers for he lacked jurisdiction.We are certain, indeed, as we are called upon to hold, that section 9B of the saidAct 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 IndustrialCourt in respect of any matter referred to it undersection 9A, the Minister shall make a decision inrelation to matters contained in the report, andthat decision shall be final”Mr. Kisusi is now urging us to pronounce those provisions as beingunconstitutional. Mr. Mallaba, of course, presents a rival proposition.Mr. Kisusi has made very forceful arguments in persuit of his contention thatsection 9B(1) negates the applicant’s right of appeal and, that therefore, it shouldbe declared null and void. Mr. Kisusi has made the point that section 9B(1) asread with section 27(IC) of the said Act extinguishes the applicant’s right ofappeal, a right which is entrenched in Article 13(6) (a) of the Constitution whichguarantees the right to appeal against decisions of inferior courts and tribunals.The only way anyone can challenge the award of the Industrial Court, hecontends, is by revision. The right to revision is also clogged, he laments, by theIndustrial Court of Tanzania (Revision of Proceedings) Rules, 1992. These Rulesrestrict the Industrial Court to revise its decisions and proceedings to two513

situations, namely (a) where the party applying for revision did not rev=ceivenotice of the proceedings and (b) where the decision was made in the absence ofthat party. He concedes that in these circumstances the remedy of revision is notopen to his client because he does not qualify under the conditions which havebeen laid down by the Rules. He contends further, as we are also awre, that heright 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, Youthand Culture, Misc. Civil Cause No. 8 of 1994 (Unreported). We are aware ofmore decisions on this point but we think that that is not the issue, really. Theissue is whether the applicant can assail the constitutionality of a statute in anapplication such as this one. We make this observation with the full knowledge ofthe pronouncement of the Court of Appleal regarding ouster clauses which Yestexclusive jurisdiction in quasi-judicial tribunals. We may only observe that there isa remarkable distinction between the background in Attorney-General V. LohaAkkonaay and Joseph Lohay (CA) Civil Appeal No. 31 of 1994 (Unreported). Thedistinction resides in the manner and mode in which the litigation was instituted inthe Akkonaay case. The latter case was not instituted as an application forprerogative orders; it was a petition for a declaratory judgment that the provisionsof 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 socialbodies and how they function. We commend him for that scholarly literature butwe think it will not be of any assistance to the cause he is persuing. Suffice it tosay that he finally comes to the crux of the matter at page 6 of his writtensubmissions. He submits in paragraph 2.4.6 that finality clauses, otherwise calledouster clauses, in statutory provisions are to be understood to mean whatparliament intended. Which also means that a statute, however unpopular, mustnot 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 tochallenge its constitutionality according to the practice obtaining in this Court, bya petition by way of originating summons. And this is not a light matter, becausesuc an applicant must also do so in conformity with paragraph 5 of Article 30 ofthe Constitution. Mr. Mallaba draws our attention to these provisions inparagraph 7.1 of his written submissions. We are of the view that he is quite rightin his approach. It is by reason of the foregoing observations that we now holdthat paragraphs (a) and (b) of the statement are untenable. In this connection wealso find that the decisions which have been cited by Mr. Kisusi, for which we aregrateful, are obviously distinguishable from the facts on which the instant case isfounded.This, then, brings us to paragraphs (d) (d) (e) and (f) of the statement. Wepropose to consider paragraph (f) first because in the even we hold that the tradedispute, the genesis of this application, is time-barred, there will be no furtherneed to consider and determine the remaining grounds. In this connection the515

applicant, through its learned counsel, Mr. Kisusi, contends that the inquiryproceedings were time-barred and that therefore the Industrial Court had nojurisdiction to entertain the matter. Both learned counsel, with great industry,have traced the juncunain the labour laws as regards the time frame withinwhich to lodge a complaint for purposes of an inquiry. In particular Mr. Kisusi hasreferred extensively to case law on the subject, especially the decisions of thecourt of Appeal in zambia Tanzania road Services Ltd V.J.K. Pallangyo (1982)TLR 24 and Jumuiya ya Wafanyakazi Tanzania V. Kiwanda cha Uchapishaji chataifa (Kiuta) and Another, appeals which originated from awards which weremade by one of the members of this high Court Bench when he was theChairman of the erstwhile Permanent Labour Tribunal and its successor, theIndustrial Court of Tanzania. The decisions in the above cases influencedGovernment policy as a result of which The Permanent Labour Tribunal(Amendment) Act, No. 3 of 1990 was enacted. Among the changes that werebought about by the amendment was delititon and replacement of section 9Awhich widened the scope of matters to be inquired ino from matters relating totrade disputes to include matters which did not constitute a trade dispute. Butnowhere does it appear that a specific time-frame within which to lodge tradedisputes has been fixed by law. As Mr. Kisusi has pointed out, the Court ofappeal held in the Pallangyo case that such a lacuna was contrary to publicpolicy; but its decision on the matters= wa modified in the Kiuta case which doesnot lay down fast rules relating to limitation of time.516

Mr. Kisusi submits further that since the Permanent Labour Tribunal has nowbeen transformed into an Industrial Court, litigation before it being in the nature ofcivil proceedings, where there is no fixed time limit, such civil proceedingsbecome amenable to the Law of Limitation Act, 1971. Of course this will be astrong gound if the Industrial Court is not an administrative tribunal like itspredecessor was. In this connection he has referred us to section 3(1) of theInerpretation of Laws and General Clauses Act, 1972 (Cap.1) which defines theord “court” to mean any court in Tanganyika of competent jurisdiction. We are ofthe firm view that indeed the Industrial Court of Tanzania is a “court” ofcompetent exclusive jurisdiction. This view is founded on the changes in the lawwhereby the Permanent Labour Tribunal was abolished and in its place theIndustria Court was established with power to enforce its decision and mete outpunishment in respect of offences involvingcontempt of court. In thesecircumstances we are satisfied, and we hold, that the applicants had to complywith the law of Limitation Act, 1971 by bringing their litigation before the IndustrialCourt within six years as per paragraph 7 of the First Schedule to the Law ofLimitation Act, 1971. This is so because their litigation is based on contract. Inthe result we hold that the trade dispute which has culminated in theseproceedings was time-barred when it reached the Industrial Court. There wastherefore nothing before the Industrial court to inquire into.The question then boils down to the vires of that Court, namely that it had nojurisdiction to inquire into a nothing, as it were. We would thus allow applicationon this point alone so that an order of certiorari would lie as prayer. Hence and in517

consequence thereof, the decision of the Minister is quashed. Since the award ofthe Industrial Court is itself based on the void decision of the Minister, and sincethat 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 TANZANIAAT DAR ES SALAAM(CORAM: Mwakasendo. J.A., Makawe. J.A. and Kisanga, J.A.)CIVIL APPEAL NO. 10 OF 1982BETWEEND.R.KAIJAGE APPELLANT518

ANDESSO STANDARD TANZANIA LIMITED .RESPONDENT(Appeal from a judgment and Decree of theHigh Court of Tanzania at Dar es Salaam)(Babati, Ag. J.) dated 20 th day of March,JUDGEMENT OF THE COURTMAKAME, J.A.:The appellant in this appeal was employed as a clerk by the respondentcompany. In July 1980 he was summarily dismissed from his employment.Because he was dissatisfied he appealed to the Conciliation Board of TemekeDistrict in accordance with the Security of Employment Act 1964. The Board wasof the view that the dismissal was unjustified so it accordingly ordered theappellant’s re-instatement. In turn the respondent company referred the matter tothe Minister for Labour. On 8 thJanuary 1981 the Commissioner for Labour,acting under his delegated powers, reversed the decision of the Conciliationboard. The appellant filed a suit in the High court seeking a declaration that hisdismissal by the respondent company was invalid so he was still in theiremployment. His contention was that in his adtion the Minister for Labour hadoffended the principles of natural justice because the appellant was denied theopportunity of submitting his memorandum in reply to that by the respondentcompany.In the Written Statement of Defence the respondent company conteded that theappellant had been properly dismissed and that the High Court had no519

jurisdiction to try the suit, by virtue of section 28 of the Security of employmentAct. They further contended, successfully pursued the preliminary point and thesuit was thrown out on that score. The appellant has now come to this court andis represented by Mr. Lakha, Learned Advocate is in the high Court, Mr. Uzandaappered for the respondent company before us.We think we should set out in full section 28 of the Security of Employment Act. Itprovides.“28 (1) No suit or other civil proceeding (other than proceedings to enforce adecision of the Minister or entertained in any civil court with regard to thesummary dismissal or proposed summary dismissal, or a deduction by way of adisciplinary penalty from the wages, of an employee.(2) In this section, “civil proceeding” includes a cross suit or counterclaim, any setoff and any civil proceeding under Part X1 of the Employment Ordinance”.The Learned trial judge expressed the view that the above –quoted sectionimplied that the Minister’s decision cannot be questioned in a ‘suit’ like the onefiled by the appellant. The only recourse open was to proceed by way of certiorariand Mandamus. We wish first to say, as we clearly said in Civil Appeal No. 15 of1981, PATMAN GARMENTS INDUSTRIES LIMITED v. TANZANIAMANUFACTURIES LIMITED, wherein an act by the Minister for Lands wasquestioned in a court of law, that the party dissatisfied need not necessarly520

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 contraryview. We wish to add that, in any event, the learned judge’s view cannot be rightbecause proceedings in an application for certiorari would also be a civilproceeding 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 ofEmployment Act about the extent to which the jurisdiction of courts is ousted.The substantive merits of a ministerial decision under the Act cannot be goneinto in a court of law. This is the import of both Section 27 and 28. Among thethings that can be examined is whether the rules of natural justice wereobserved, which would in turn determine whether there was a valid decision, ifyou like a real decisions at all.In the instant matter the appellant complained, and is still complaining that therespondent 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 insupport of their respective oases but shall not be entitled to appear in person orby advocate or other representative before him”.In the plain the appellant contended that there was injustice and the respondenthas denied this. The learned trial judge appeared to agree that there might havebeen injustice but his view was that the only way to bring up the matter was by521

way of certiorari and mandarms which as we have already pointed out, is not thecase. There was a triable issue which the high Court should have triednotwithstanding the way this particular matter was brought up.In the result we are of the view that the appeal must succeed and we accordinglyallow it with costs. We order that the high Court should proceed with the hearingof the suit; Parties and/or the trial court may with to decided whether or not anyother person or persons should be joined.DATED at DAR ES SALAAM this 4 th day of November, 1982.(Y.M.M. MWAKASENDO)JUSTICE OF APPEAL(L.M. MAKAME)JUSTICE OF APPEALR.H. KISANGAJUSTICE OF APPEALI certify that this is a true copy of the original.(l.A A kyando)IN THE COURT OF APPEAL OF TANZANIA522

AT MWANZACORAM: OMAR, J.A. HNZAVAS, J.A.., And MFALILA, J.A)CIVIL APPEAL NO. 15 OF 1994BETWEENLAUSA ALFAN SALUM & 106 OTHERS APPELLANTSANDMINISTER FOR LANDS HOUSINGAND URVAN DEVELOPMENTRESPONDENTSNATIONAL HOUSING COPRORATION(Appeal from the decision and ruling ofthe High Court of Tanzania at Mwanza)(Chipeta, J.)dated the 11 th day of January, 1994inMiscellaneous Civil Application No. 12 of 1992JUDGEMENT OF THE COURTMFALILA, J.A:In the High Court of Tanzania at Mwanza, the appellants Lausa Salum andothers whose number varies from 106, 116 to 206 filed an application praying for523

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 itspremises occupied by the applicants be quashed.The background to these proceedings may be easily stated. The secondrespondent, the National Housing Corporation, was established by an Act ofParliament, the National Housing Corporation Act No. 2/90. Section 11 of the Actprovided that the rents chargeable for the premises belongi to the corporationshall be sat by the Corporation subject to the provisions of the Rent RestrictionAct 1984. The Rent Restriction Act also created the housing Tribunals and theirappellate body, the Housing appeals Tribunal. Section 2 (1) (b) of the rentRestriction Act empowers the minister responsible for Lands, Housing and UrbanDevelopment, by order published in the Gazette with the approval of the NationalAssembly signified by a resolution, to exempt any premises or class of premisesfrom all or any of the provisions of the Rent Restriction Act. Using these powers,the Minister responsible for Lands, Housing and Urban Developmentpromulgated Government Notice No. 41 of 1992 exempting all premises inrespect of which a specified parastatal body is the lawful landlord from all theprovisions of the Rent restriction Act relating to the restriction on the amount ofrent that may be charged or collected by the specified parastatal body as thelandlord from any tenant occupying any part of these premises. The secondrespondent was among the specified parastatals. Following the publication of524

G.N. 41/92, the second respondent increased rents for all its premises includingthose occupied by the appellants. The appellants objected very strongly to theserent increases which they called unilateral. When their protests were rejected bythe second respondents, they filed an application in the high Court challengingthe validity of both the G.N. 41/92 and the increases of rent based on it. Theappellants 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 Actbecause it exempts specified parastatals instead of a class of premises asprovided by section 2 (1) © of the parent or enabling Act.The second ground was that G.N. 41/92 is unconstitutions for the followingreasons. Firstly that it is discriminatory. That it discriminates the appellants bydepriving them of the protection accorded by the Rent Restriction Act againstarbitrary eviction; distress for rent and the right to statutoty tenancy which isotherwise available to tenants generally and that this discrimination is contrary toarticle 13 (2) of the Constitution of the united Republic. Secondly that it bars theappellants from litigating their rights as tenants in the housing Tribunal and thatthis is contrary to article 13 (3) of the Constitution. Thirdly, that it provides nosafeguards against abuse of power by the second respondent.The appellants challenged the validity of the rent increases by the secondrespondent on the basis that since the order under which they were made isinvalid, such increase were in contravention of section 11 of the National HousingCorporation 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 theappellantss’ assertions, G.H. 41/92 exempts a class of premises i.e. those ownedby the specified parastatal bodies, the orde is in accord not inconsistent with theparent Act and that therefore it is within its amit. Regarding the constitutionality ofG.N. 4192, the learned judge held firstly that it cames within the savingPROVISONS OF Article 30 (2) of the Constitution because it is not drafted insuch wide terms as to net untargeted groups. Secondly that it is notdiscriminatory in that it affects all the tenants of the specified parastatals. Thirdlythat it does not shut out the tenants of the specified parastatals from legalrecourse in that ordinary Courts are available to the tenants to enforce theircontractual rights against their landlords. Fourthly that although the G.N. Shouldhave contained a provision limiting the power of the parastatals to increase rentto economic rent, he held that the absence of such a clause was not fatal as theCourts 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 learnedCounsel, on behalf of the appellants filed five grounds of appeal. In the firstground he complained that the learned judge having found that the 1 strespondent’s order (G.N. 41/92) has no legal safeguards against the abuse ofpower, he ought to have found that the order is bad in law and unconstitutional526

ecause it violates Article 13 of the constitution of the United Republic ofTanzania. At the hearing of this appeal, Mr. Matata exapanded on this complaintsubmitting that G.N. 41/92 is unconstitutional because first if allows the secondrespondent to act arbitrarily and secondly it violates the second respondent to actarbitrarily and secondly it violates the concept of equality before the law enshrinein Article 13 of the constitution. He added that the Rent Restriction Act avails allthe tenants two basic rights. The protection against increase of rent except onthe 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 1 st respondents’s orderousts the jurisdiction of the Housing Tribunal, it leaves the second respondentfree to treat its tenants in any way it likes as it did in the rent increases in thiscase and against such arbitrary actions, the tenants are left defenceless. Theeffect of the order Mr. Matata went on, is to create two categories of tenants,those with full protection under the Rent RestrictionOn behalf of the 1 st respondent, Mr. Magoma the learned senior state Attorney,supprted the High court judgement on the validity of G.N. 41/92 Stating that itwas made within the four corners of the law empowering the 1 st respondent tomake it and that it does not in any way violate the constitution of the UnitedRepublic.In support of his contention that Courts can and should intervene in respect oflegislation without proper safeguards against arbitrary action, Mr. Matata citedthe decision of the High Court of Uganda in SHAH. V. ATTORNEY GENERAL527

(1970) E.A. 523. It is true that the learned judge found that G.N. 41/92 had nosafeguards against arbitrary increases of rent, but he did not think this wasnecessarily fata to the validity or constitutionality of the order because in his viewtenants of the second respondent could pursue and enforce their legal rights inthe ordinary Courts. In the Shah Case quoted above, the Court felt obliged tointervene because the legislation in question i.e. The Local Administration(amendment) Act 1961 violated the provisions of Article 8 of the UgandaConstitution 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” inthat it shut out litigation and prevented him from ventilating his grievancesin Court.(c) It gave power to the Minister responsible to nullify even court judgementsincluding the High court.We therefore ask ourselves whether G.N. 41/92 has any of these or similareffect. We do not think so. Like the learned judge we think it would have beenfairer if the order had provisions safeguarding the interests of the tenants againstthe possibility of arbitrary increases of rent by their powerful landlord, but we aresatisfied that despite being freed from the controls in the Rent Restriction Act byG.N. 41/92, the second respondent does not have and the order did not intend togrant it arbitrary powers to increase rent. We are satisfied that the secondrespondent country wide can seek redress in the ordinary Courts. In thecircumstances, it is not correct to say that G.N. 41/92 created two categories of528

tenants, one enjoying legal protection the other without such legal protection. Thecorrect position is that G.N. 41/92 removed the appellants and all tenants of thesecond respondent from the protection of the housing Tribunals under the RentRestriction Act and as it were transferred them to the ordinary Courts. Wetherefore agree with the learned judge that GN. 41/92 does not violate theconcept of equality enshrined in Articles 13 of the Constitution. We wish also toaffirm the principle in the decision of this Court in Juthalal Velji Ltd. Vs. THBEstates Co. Ltd. Civil Appeal No. 11 of 1985 relied on by the learned judge andwhich is on all fours with the present case to be good law. Mr. Matata sought todistinguish Velji’s case from the present one of the basis that in Velji’s case therent was based on the economic value of the building based on the valuationreport which was produced in the High Court whereas in the present case therewas no such valuation. Secondly that the exemption in Velji Case was specific toa specific building. We do not think these distinctions are valid. The presence orabsence of a valuation. Report would be relevant when considering thereasonableness the can charge such rent secondly. Limiting the exemption tospecific buildings is in accord with the legistlation which directs that theexemption may be in respect of any premises or class of premises. In Velji’scase, they sought to exempt “Tecco Godowns” in Mikocheni Industrial Area as aclass of premises.In the second ground, the appellants complained that had the trial judge properlyinterpreted 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 inexempting a group of Parastatals instead of a class of premises, it was ultra viresthe 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 ofpremises whereas the exemption in the Order is based on the ownership of thosepremises. We think with respect that this submission is based either on amisreading or partial reading of the section and the order . Section 2 (1) of theRent Restriction Act 1984 provideds2 – (1). This Act shall apply to all dwelling houses and commercial premisesother than;(a) .(b) Any premises or class of premises which the Minister may with theapproval of the National Assembly signified by a resolution, by orderpublished in the Gazzette, exempt from all or any of the provisions of thisAct.And paragraph 3 of the exemption order reads in part:4. All premises in respect of which a specified parastatal is the lawfulReading these two provisions together, we do not see how paragraph 3 of theorder 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 from530

the provisions of the Rent Restriction Act. He can exempt any premises orclass of premises. The premises exempted by GN. 41/92 are covered underthe description any, whereas those under G.N. 23/83 are covered under thedescription class of premises. We therefore do not see why Mr. Matata wouldwant to limit the Minister’s power of exemption to a class of premises whenthe first part of the section widens the power to any premises. Since sallpremises must have owners, it is strange to suggest that an order would berendered invalid simply by identifying their owner. For these reasons we aresatisfied that GN. 41/92 is not ultra vires the enabling section of the Act. Thisground of appeal therefore fails.In ground 3 the appellants averred that had the trial judge properly directedhimself on the rules of staturory interpretation, he would have found thatsection 2 (1) (b) of Act 17/84 does not confer upon the 1 strespondentparliamentary power to amend a substantive provision of a statute (section 11of the National Housing Corporation Act No. 2 / 1990). In support of thisground, Mr. Matata contended that the effect of the order by the 1 strespondent was to amend section 11 of the National Housing Corporation Actwhich he was not empowered to do. In reply intend to amend section 11 orany other provision of the National Housing Corporation Act.We agree with Mr. Matata that the 1 st respondent, the Minister for LandsHousing and Urban Development has no power to amend an Act of531

Parliament. But he has never purported to undertake such a task.. But he hasnever 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 doby the Rent Restriction Act-namely to exempt the premises owned by thespecified parastatals from the provisions law or order does not meanrepealing or amending that particular law or Order. It simply means that thatparticular law will not operate on a specified individual, body of individuals orOrganization. Hence you may have the Minster of Finance being empoweredto exempt certain organizations from the operations of say the Sales Tax Act.This does not mean that the Finance Minister is empowered to amend theSales Tax Act. The contention in this ground therefore fails.We have already held that the misapplication of the Rent Restriction Act tothe premises owned by the second respondent, did not leave the appellantshelpless without any remedy against the second respondent’s arbitrary orcapricious actions. We have already held that the applellants or other tenantsof the second respondent can still go to the ordinary Courts to enforce theirrights under the tenancy agreements or to challenge the rents fixed by thesecond respondents under its new acquired authority. In the circumstances,we do not agree with Mr. Matata that the appellants’ right to go to the ordinaryCourts is illusory as we do not see any reason which can prevent them fromgoing to the ordinary Courts to enforce their rights as . The contention inground 4 similarly fails.532

Lastly, in ground 5 the appellants contended that had the learned judgeproperly directed himself on the second respondent’s decision to raise rent,he would have found that the second respondent acted arbitrarily andcontrary to the principles of natural justice. In support of this contention Mr.Matata cited a Privy Council decision in an appeal from Canada, Minister ofNational Revenue vs’ Wrights Canadian Ropes Ltd. 1947 AC 109. We thinkthe decision in this case would have been relevant in the consideration of thepresent appeal if the appellants had been challenging the reasonableness ofthe new rents not their validity. They would then in the process have providedthe 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 validas it was lawfully made under validly delegated authority, the validity of thenew rents imposed by their landlord under the newly acquired authoritycannot be successfully challenged. In the circumstances we agree with Mr.Magoma that the ony and best course for the appellants to take would havebeen 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 whetherthe new rates are reasonable because he had no data or other material toassist in such an undertaking. Accordingly we hold that this head of complaintalso fails.533

All the grounds or appeal having failed, this appeal fails and we dismiss it inits entirety with costs.DATED AT DAR ES SALAAM THIS 9 TH DAY OF NOVEMBER, 1994.Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER935, (1985) AC 374, (1984) 3 wlr 1174, HL.Dyson r A.G (19 (1) 1 KB 410, CAElls 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 ER70, (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, HLRv HM Treasury, exp sundley (1985) 1 All ER 589,(1985) QB 657, (1985) 2WLR 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 Nationalincorporated Ass (1920) 1 KB 26: rvsd (1920) I KB 468, CA” Affd (1921) 2 CA1, HLR v Kendnton and Chelsea Royal London BC, Hammed (1989) 1 All ER1202, (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) 3WLR 181, HL.Releigh Goscher (1898) 1 Ch 73.h. Thompsor, Re (1889) 5 TLR 565Tobin v R (1864( 16 CBNS 310, 143 BR 1148Town Investments Ltd v Dept of the Environment (1977) 1 All ER 813, (1978)AC 359, (1977) 2 WLR 450, HL.Appeal and Cross appealKenneth Baker, the Secretary of State for the Home Department on 1 May1991, appealed with the leave of the Court of Appeal from the decision of that535

court (1992) 1 QB 270) delivered on 29 November 1991 allowing the appealof 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 tocommit, inter alios, the Home Office and the Secretary of State for contemptof court in (1) causing.Jurisdiction over the Crown or a government department or officer of the actingas such in respect of contempt of court since orders made against Crown andundertaking given on behalf of the crown were not enforceable against the Crownby any process of compulsion. On appeal, the Court of Appeal held that theHome office could not be held guilty of contempt because the Crown as an entityand government departments were not subject to the contempt jurisdiction of thecourts, but ministers of the Crown and civil servants were subject to thejurisdiction and the Secretary of State was guilty of serious comtempt inwithholding action toreturn the applicant from Zaire. The Secretary of Stateappealed.Held – Having regard to the unqualified language of s 31 of the supreme CourtAct 1981 the court had jurisdiction under s 31 to make coercive orders, such asinjunctions, in judicial review proceedings against ministers of the Crown actingin their official capacity and under RSC Ord 53, r 3 (10)b the court could grantinterim injunctions against ministers. Purthemore, if a minister acted in disregardof an injuction made against him in his official capacity the court had jurisdictionto make a finding of contempt would demonstrate that a government department536

had interfered with the administration of justice and an order for costs could bemade to underline the significance of the if would then be for parliament todeyermine the consequences of that finding. On the facts. The judge inchambers hearing the application for judicial review made on behalf of theapplicant had had jurisdiction to grant an injunction against the Secretarial ofState requiring him to procure the return of the applicant to the jurisdiction of thecourt, notwithstanding that the order was made before he had given the applicantleave to apply for judicial review. The Secretary of State, albeit in his officialcapacity, had properly bveen found to be in contempt in failing to comply withthat order, in failing to keep the judge informed of the situation and in failing toprotect the applicant’s position pending an application to the court to dischargethe order. The appeal would therefore be dismissed (see p 540 d, p 541 a to e, p564 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 affirmedNotesFor contempt by disobedlence of a court order or breach of an undertaking, see 9Halsbury’s Laws (4 th edn) paras 69, 75, and for cases on the subject see 16Digest (Reissue) 81 –84, 796 – 815.For the Supreme Court Act 1981, s 31. see 11 Halsbury’s starvce (4 th edn( 1991reisse) 991.537

Cases referred to in opinionsAdams 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 anundertaking given by counsel for the Home Office to Garland on 1 May 1991 thahe would not be so removed pending an adjourned application for leave to movefor judicial review of the decision of the Secretary of state refusing him leave toenter the United Kingdom on the ground of political sylum and/ or (2) failing toprocure the return of M on 2 or 3 May 1991 in breach of the order of Garland Imade on 2 May reguiding such return. The Court of Appeal found Mr Baker, asSecretary of State, was in contempt of court by reason of his personal decisionon 2 May 1991 to cancel the return flight of M to the United Kingdom. M crossappealed.The facts are set out in the opinion of Lord Wolf.Stephen Richards, Richard Gondorn and staurs Gauhpole (instructed by theTreasury Solicitor) for the Home Secretary.Sydney Kentridge QC, Richard Scanndly and Authon Bradley (instructed byWinstanley-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 indraft the speech to be delivered by my noble and learned friend Lord Woolf. Iagree with it, and for the reasons he gives would dismiss the appeal, whilesubstituting the Secretary of State for Home Affairs for Mr Baker Personally asthe subject of the finding of concempt.538

LORD TEMPLEMAN. Parliament makes the law, the executive carry the law intoeffect and the judiciary enforce the law. The expression the Crown has twomeanings, namely the monench and the executive. In the seventeenth centuryParliament established its supremacy over the Crown as Monarch, over theexecutive and over the judiary. Parliamentary supremacy over the Crown asMonarch stems from the fact that the monarch must accept the advice of a PrimeMinister who is supported by a majority of Parliament. Parliamentary supremacyover the Crown as executive stems from the fact that Parliamentary supremacyover the Crown as executive stems from the fact that Parliament maintains inoffice the Prime minister, who appoints the ministers in charge of the executive.Parliamentary supremacy over the judiciary is only exercisable by stature. Thejudiciary enforce the law against individuals, against institutions and against theexecutive. The judges cannot enforce the law against the Crown as monarchbecause the Crown as monarch can do no wrong bus judges enforce the lawagainst the Crown as executive and against the individuals who from time to timerepresent the Crown. A hisgant complaining of a breach of the law by theexecutive can sue the Crown as executive brining his action against the ministerwho is responsible for the department of state involved, in the present case theSecretary of State for Home Affairs. To enforce the law the courts have power togrant remedies including injunctions against a minister in his official capacity. Ifthe minister has personally broken the law, the litigant can sue the minister, in539

this case Mr. Kenneth Baker, in his personal capacity, the courts are amed withcorcive powers exercisable in proceedings for contempt of court.In the present case counsel for the Secretary of State argued that the judgecould not enforce the law by injunction or contempt proceedings against theminister in his official capacity. Counsel also argued that in his personal capacityMr. Baker the Secretary of State for Home Affairs had not been guilty ofcontempt.My Lords, the argument that there is no power to enforce the law by injunction orcontempt 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 andnot as a matter of nessisty, a proposition which would reverse the result of theCivil War. For the reasons given by my noble and learned frind Lord Woulf andon principle, I am satisfied that injunctions and contempt proceedings may bebrought against the minister in his official capacity and that in the present casethe Home office for which the Secretary of State was in contempt. I am alsosatisfied that Mr. Baker was through oursamong in the without capacity, onadvice which he was entitled to accept and under a minister to the law. In thesecircumstances I do not consider that Mr. Baker personally was guilty of contempt.I would therefore dismiss this appeal substituting the Secretary of State for HomeAffairs 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 thespeech 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 theSecretary of State for Home Affairs for Mr Baker personally as the subject of thefinding of contempt.LORD DROWNS WILKINSON. My Lords, for the reasons given in the speech ofmy noble and learned friend Lord Woolf I agree that this appeal should bedismissed, 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 constitutionalimportance. It is an appeal from a decision of the Court of Appeal (1992) 4 All ER97, (1992) 1 QB 270) which by a majority (Lord Donaldson MR and Nolan 1 (McCowan L) dissenting) resersed a judgment of Simon Brown (1992) $ All ER 97)and decided that Mr Kenneth Baker, when acting as Home Secretary, had beenguilty of contempt of court.This was the first time that a minister of the Crown had been found to be incontempt by a court. The finding of contempt was made for not complying with ainjunction 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 Courtof Appeal did not regard the contempt a reuiring any punishment of Mr. Bakerother than that be pay the costs of the appeal and in so far as they related to the541

proceedings brought against him, in the court below. The Court of Appeal did notallow the appeal of M against the dismissal of his application that otherrespondents, including the Home Office, should also be found guilty of contemptMr Kentridge QC in his argument on behalf of M, made in clear that he wouldonly seek to rely on a cross – appeal against the decision as to the Home Officeif, countrary to his primary contention, the decidion of the majority of the Court ofAppeal 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 thatneither the Crown in general, nor a department of state nor a minister of theCrown, 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 togrant injunctions directed to such bodies and that the order which was made byGarland), which it was held by Simon Brown I as well as the Court of Appeal thatMr. Baker had contravened, was made without jurisdiction.When advancing these submissions Mr. Richards stressed that it was no part ofhis case that the Crown or uninsless are above the law or that ministers are ableto rely on their office so as to evade liability for wrongdoing. He accepted that if aminister acted in disregard of the law as declared by the courts, or otherwise wasengaged in wrongdoing he would be acting outside his authority as a ministerand 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 isconfirmation that in ordinary circumstances ministers of the Crown andgovernment departments invariably scrupulously observe decisions o the coarts.542

Because of this, it is normally unnecessary for the courts to make an executoryorder against a minister or a government department since they will comply withany declaratory judgment made by the courts and pending the decision of thecourts will not take any precipitous action. Mr Richards submits that thecircumstances which have given rise to the present proceedings are highlyunusual and that the fact that Garland I flt it necessary to grant an injunction wasirrespective of the answeres to the legal issues, this is not a case in which it wasappropriate to make a finding of contempt, since there was no question of MrBaker seeking to act in defiance of the court, nor was there any intention tointerfere with or impede the administration of justice. Support for thesesubmissions is provided by twqo comments of Lord Donaldson of Lymington MRin his judgment in the Court of Appeal, the first being made at the outset of hisjudgment when he said (1992) 4 All FR 97 at 121, (1992) 1 QB 270 at 284): Thiscase is remarkable for the chapter of accidents, mistakes and misunderstandingswhich has occurred.The second comment is part of the explanation which Lord Donaldson Mr gavefor concluding that, in the highly unusual circumstances of this case, mr Baker’sresponsibility for contempt fell at the lower and of the scale. The secondcomment is that Mr Baker has disavowed any intention to act in defiance of anorder of the court or to hold himself above the law, a disavowal which I fullyaccept’ (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 comingto the conclusion that Mr. Baker was guilty of contempt are set out fully in the543

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 isstill accessory, especially in view of Mr Richards suggestion that it was unjust tofind 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 1990and immediately claimed asylum. The claim was based on an allegation that hewas a refugee within the meaning of the Convention relating to the Status ofRefugees (Ceneva, 28 July 1951’ TS 39 (1954): Crown 9171). He wasinterviewed and he was informed that the Home Secretary was minded to refusehis claim to asylum by a letter of 16 November 1990 which explained the basisupon which this preliminary decision had been reached.M was then re0interviwed on 2 December 1990 and given an opportunity tocomment upon the letter of 16 November 1990 and given an opportunity tocomment upon the letter of 16 November 1990. His position was thenreconsidered by the Asylum Division of the Home Office and on 17 December1990 a letter was written to M setting out that his further comments having beenconsidered, it was still not considered that he qualified for asylum under theterms of the convention.The contents of the two letters make it reasonably clear that the decision torefuse asylum was due to the Home Office not accepting Ms accounts of eventswhich resulted in his seeking asylum. This account involved him claiming that hewas a treachers to take strike action which resulted in demonstrations by544

students at his school; that he was arrested for having organized the strike anddetained for three days during which time he was whipped and beaten and that aguard, who he believed had been bribed by his father had then smuggled himinto an aircraft bound for Lagos where he acquired a false Nigerian passport anda ticket for a flight to London.An application was then made for leave to apply for judicial review and as aresult 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 theapplication for leave was that the Secretary of State had failed to consider certainfacts. On 20 March 1991 the application was refused by Kennedy J. The removaldirections were then scheduled for 28 March 1991. M then promptly applied torenew his application for leave before the Court of Appeal, but his solicitors failedto 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 forthe Care of Victims of Torture and he prepared a report dated 12 April 1991which set out his opinion as follows:I found nothing in his history or its presentation to suggest that it was in any wayunreliable. His description of prison conditions has been confirmed innumerabletimes by other people who have experiences them. The scars he bears areentirely compatible with the causes he ascribes to them. He is suffering a degreeof dealness and spinal trouble quite likely to have arisen from his mistreatment.Psychologically he describes symptoms very likely to arise from the experienceshe described. He shows some evidence of depression and his continued545

detention can only aggravane these symptoms and he could easily become ascrious suicide risk.Regrettably the report was not sent to the Home Office until 30 April 1991, theday before the latest time which had been set for M’s removal, which was 630pm on 1 May 1991. The Court of Appeal heard M’s application by interrupting itsnormal work for that day during the afternoon of 1 May and at about 455 pm LordDonaldson MR, sitting with Nicholls and Farguharson LI. Delivered a five pagejudgment giving the Court of Appeal’s reasons for unanimously refusing theapplication. Unbeknown to the Court of Appeal, arrangements were alreadybeing made for M to change his solicitors from those who had represented himup to that time including in the Court of Appeal, on the basis that his case wasnot being fully deployed by his existing legal advisors. Outside the Court ofAppeal the new solicitors for M and the counsel then instructed informed counselfor the Home Office and his instructing solicitor Mr David Palmer) that a freshapplication for leave to apply for judicial review was to be made on M’s behalf toGarland I the judge in Chambers, as it was outside normal court hours and therewas no nominated Crown Office list judge available. It was indicated that thefresh grounds relied upon would include the availability of the medical report andthe unreasonable reliance by the Home Office upon Ms failure to apply forasylum in Nigeria.At about 525 pm on 1 May 1991 the hearing before Garland I commenced. Atthat stage it was appreciated that M’s aircraft was about to take off fromHeathrow at 6 or 6.30 pm. Having heard part of the argument, Garland I not546

unnaturally took the view that the judge in chambers was not the proper tribunalto give leave to move for judicial review and that the obvious course was toadjourn the matter so that an application could be made the following day tonominated judge. When it became apparent that Garland I wished M’s departureto be post Mr. Palmer telephoned the Home Office that the judge had expressedthe wish that M should not be removed from the United Kingdom and asked himto do his best to insure the removal did not take place. This was at approximately5.50 pm.In the absence of Mr. Palner a misunderstanding took place between counselwho was representing the Home Office and Garland J. Garland I understood thathe had been given an undertaking y counsel on behalf of the Home Office that Mwould not be removed pending the making of an application the foloowingmorning. On that bais \garland I refrained from granting leave and adjourned theapplication. However, counsel for the Home Office did not inted to give onundertaking and did not believe that he had done so. However, the order whichwas made in relation to the hearing recited the fact that.The application for leave to move for judicial review be adjourned on theundertaking by counsel for the Home Office that the applicant would not beremoved from the United Kingdom to Zaire.Unfortunately, through no one’s fault, the steps which Mr Palner had set inmotion to prevent M’s removal were unsuccessful and at 630 pm the aircraftcarrying M commenced its departure for Zaire via Paris. The aircraft landed in547

Paris at 7. 45 pm. The plane on which M was to continue his flight was not due toleave until 1020 pm.Prior to Ms departure from Paris, numerous discussions took place betweenofficials of the Home Office, a member of Parliament who was intervening on M’sbehalf, his new solicitor and subsequently Mr. Peter Loyd, the ParliamentaryUnder Secretary of State to the Home Office (the Minister). The conversationwhich took place revealed a considerable confusions as to what was the precisesituation. The Home Office officials and the minister were under the impressionthat the judge, who edentity they did not know. Wanted M to be returned. Theview was taken that it would not be appropriate to intervene in Paris, but it wasdecided that the judge should be informed about the situation. The Home Officeofficials were not able to contact a presentative of the Treasury Solicitor and infact although subsequently, the identify of the judge was ascertained togetherwith 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 10.40pm the aircraft carrying M and his escort departed from Paris. It is accepted thatat that time the minister was ignorant of any undertaking as opposed to aninformal request being given by the Home Office until it was too late to havesecured M’s return from Paris.At about 11.20 pm M.s solicitor telephoned Garland I at his home and informedhim what had happened and that, on M’s case, he would be exposed to a graverisk of persecution on his arrival in Zaire. Garland I then made a mandatory orderon the telephone requiting the Home Secretary to return M to this country. The548

solicitor later at about 12.30 am visited Garland I at his home where the judgewrote out to order in the following terms.Whereas at 1755 hours on Wednesday 1 st May 1991, on an application to theJudge 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 MrRichard Gordoa) on instruction undertook to the Court that (M) would not beremoved from the United Kingdom to Zaire pending an adjourned application forleave to move for judicial review so soon as possible on Thursday 2 nd May 1991:And whereas the said undertaking was embodied in the order of the Courtadjouming the said application; and whereas it appears to the Court that the saidundertaking has veen breached by the removal of (M); Upon hearing Mr. Davidburgess, Solicitor, on behalf of the said M. It is ordered that the secretary of Statefor the Home Department by himself, his servants or agents do forthwith procurethat1. 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 ofthe servants or agents of Her Majesty’s Government inZaire until further order therein.3. that the Secretary of State be at liberty to apply to vary ordischarge this order at 10.30 am on Thursday 2 ndMay1991549

Having obtained the order the solicitor first informed the Home office of itscontents on the telephone and subsequently faxed a copy to the chiefimmigration officer. At about 1.40 am the minister’s private secretary, who was bythen aware of the terms of the order and had spoken to a representative of theTreasury Solicitor, contacted the resident derk of the Foreign and commonwealthOffice and asked him to contact Kinshasha immediately and arrange for M to bemet on arrival by officials from the British Embassy, who should look after himand help him to return provided that he wanted to do so. However, it was notpossible to contact the British Embassy until 7 am the following morning. In themeantime 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 andwas presented by his escort to the Zaire immigration authorities. Shortlyafterwards he was seen by an official of the embassy. He told the official that hewished to return to Lonon and he was booked on a flight due to leave Kinshasaat 9 pm that evening. His travel documents were taken for a return visa to beendossed on them.No application was made to Garland I at 10.30 am on 3 May in accordance withthe terms of the order, through a message was left with his clerk that the HomeOffice whished to make an application and would be in touch again as soon aspossible.During the morning discussions took place between the minister and his officialsbut he concluded that the case raised issues of such importance that theinstructions of the Secretary of State, Mr Baker should be sought. A meeting with550

Mr Baker was arranged for 4 pm that afternoon which having regard to his othercommitments. Was the earliest opportunity. At the beginning of the meeting MrBaker knew nothing about the case. What happened at the meeting is set out ina note which was taken by Mr Baker’s private secretary for which public interestimmunity was exceptionally waived. The meeing was attended by the minister anassistant under secretary of the Immigration Department a member of the LegalDepartment of the Home Office and the respective private secretaries. The notedescribes what happened as follows:The Home Secretary discussed the case of (M) with Mr Lioyd, Mr Osborne andMs Spencer this afternoon. 2 Having read the facts of the case, as set out in yourbriefing note of 2 May, the Home Secretary asked the grounds on which officialsproposed that the court order should be opposed Mr. Osborne explained that MrJustice Garland had exceeded his powers in making an Order that (M) should bereturned directly from Zaire: it was a Treasury solicitors were expected to confirmlater this afternoon that the Home Office should appeal against the Order andthat (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. MrLloyd was confident that the reasons for (M’s) removal still held good. Thepolitical difficult was that the Home Office could be accused of having beenHowever, the undertaking had been that we would do our best” to delay (Ms)removal, and the chronology of events clearly demonstrated that we had fulfilledthis undertaking. 3 The Home Secretary fully supported the action taken and551

subject to Treasury Solicitors (sic) advice, agreed in the present circumstancesthat (M) should not be returned to Britain.In an affidavit prepared for the hearing in the Court of Appeal, Mr Bakerdescribed how he came to his decision as follows:The two factors operated on my mind in particular – (1) the assurance which Ireceived from Mr Lioyd (Peter Lioyd MP, Parliamentary Under Secretary of Stateat the Home Office, the minister responsible for immigration matters that theunderlying asylum decision in relation to (M) was the right one; and (2) legaladvice (subsequently confirmed by Treasury Counsel) was to the effect that theOrder of Mr Justice Garland was made without jurisdiction and that an applicationto set aside his Order should be made at the first opportunity I have to say thatit was never suggested to me that my decision constituted contempt of Court andmy whole understanding was that in the circumstances it was perfectly in orderfor the Home Office to apply to set aside the Order of Mr Justice GarlandProvided such application was prompt I am sure that I never had it incontemplation to act in defiance of an Order of the Court, much less to holdmyself above the law. If I am wrong in any of these conclusions or if the legaladvice on which I acted was wrong, then it is a matter of sincere regret to me andI 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 Treasury552

counsel with whem a conference took place at 5:15 pm. At the conferencecounsel advised that as the liberty to apply granted by the judge (although spent)itself indicated, the Home Office should have an opportunity to challenge theorder made late the might before but that the Home Office should take thatopportunity at the earliest practicable time; in the meantime the Home Officemight reasonably hold its hand. As a result the booking for M’s return flight wascancelled and arrangements were made for an application to be made to GarlandI at 9 am on the following meaning. 3 May. In the meantime M was seen atKinsbasha airport by officials and informed that there was no turgent need forhim to attend court proceedings in the United Kingdom. He was asked to remainin touch with the embassy. He wrote down two addresses, which he gave to theofficials as to where he could be contacted. Nothing was done to protect him inthe meantime.In accordance with the arrangements which had been made, on 3 May theapplication was made to Garland I to discharge the order that he had madethough that application was opposed, Garland I came to the conclusion that hehad had no jurisdiction to make the order, but indicated that he had made theorder.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 compelobedience an undertaking freely given to the court and which he had given. Hedid eventually contact his solicitors from Nigeria and, although arrangements553

were made for his return from Nigeria, by the time those arrangements weremade contact had been lost again and his whereabouts are now unknown.On 7 May 1991 proceedings were commenced on behalf of M seeking to havethe Home Office fined and Mr Peter Lioyd MP committed to prison or fined forcontempt of court in failing to comply with the order made on 2 May. The noticeof motion was subsequently amended, in include a number of other claimsincluding a claim against Mr. Baker. At the commencement of the hearing beforeSimon Brown I on 9 July, the only changes which wee maintained wre thoseagainst the Home Office and Mr Baker Simon Brown I came to the conclusionthat he had no power to make a finding that either the Home Office or the Homesecrtary were guilty of contempt. He indicarted that, if he had had such power hewould have found the Home Office in contempt in failing to prevent M being puton the plane in Paris when they had had notice that an undertaking had beengiven 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’ssubmission that jurisdicition aprt, it would be wrung to find the Secretary of Statein contempt in the particular cincumstances of this case. It is just not provedbeyond reasonable doubt that he had a reasonable opportunity to decide to seekand then in fact w seek, discharge prior to 9 :00 am on 3 May. It is not sufficientfor the applicant to establish merely that in an idial world things would have beenordered differently. A respondent to contempt proceedings is enttled to a554

easonably benevolent construction of his actions and decisions following receiptof a mandatory order made apparerly without jurisdiction not least when,. Ashere, thse actions and decisions are being guided at every step by responsiblelegal 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 undertakinghad been givben, did not feel it proper to dispute that the undertaking had in factbeen given. As to this aspect of the case in the Court of Apeal Lord DonalksonMR 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 beright for the court to shut its eyes to the wholly exceptional circumstances of thiscase. In any ordinary circumstances if a party, or solicitors or counsel on hisbehalf, so act as to convey to the conduct the firm conviction that an undertakingis being given, that party will be bound and it will be no answer that he did notthink that he was giving it or that he was misunderstood. Here, however, thecircumstances were extraordinary and the pressures of time overwhelming. Itwas a situation in which misunderstanding was waiting to happen. If, as I think, itwould not be right to regard the Home office or the Home Secretary as beingbound by an undertaking at a time when all concerned left court at the conclusionof the hearing vefore Garland I this position could not be altered by Mr BurgessM’s solicitor informing Mr George the chief immigration Officer that anundertaking had been given. I do not, therefore, think that any question of555

contempt arises in this context this is very far from saying that the Home Officecan escape serious criticism. On any view the judge was informed that the HomeOffice would seek to prevent M leaving the United Kingodm and I should havethought that it was inaplicity in this that, if this proved impossible any otherpracticable means of preventing his reaching Zaire would be adopted. This waswhy Mr Palmer left the court in order to telephone to the Home Office before theproceedings had been conducted. Given greater efficiency and determination. Ihave no doubt that M could probably have been prevented from leavingHeathrow and certainly he could have been returned to the United Kingdom fromParis. He was not unwilling and he was in the custody of the Home office or itsagents throughout the whole peiod ending with his arrival in Azire. (LordDonakisons emphasis).There is no reason for disagreeing with those criticisms. What does appear to meto be clear from the events which occurred on 1 and 2 May 1991 is that, if thereis no power in a court to make an order to prevent the Home Office moving aperson in any circumstances, this could be a highly unsatistactory situation. Thefacts of this case illinstrate that circumstances can occur where it is in theinterests both of a person who is subject to the pwers of government and of thegovernments itself that the courts should be in a position to make an orer whichclearly 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, Ihave little doubt that Mr Baker would not find himself in his present positionwhere he has been found guilty of contempt.556

Lord Donalsdson MR described Mr Baker’s contempt as a very serious onebecause hde had takenA deliberate decision which has the effect of ensuring that an order of the court,to whomsoever addr3ssed, is not complied with particularly when noncompliancecould have had irremediable and even fatal consequences for M. forwhose protection the order was made (see (1992) 4 All ER 97 at 138, (1992) 1QB 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 ofthe contemnor can vary anormously. In the highly unsusual circumstances of thiscase, Mr Baker;s culpability falls at the lower end of the scale for the followingreasons. (1) He had no advance knowledge of M’s case or of the court’s orderbefore 4 pm on 2 May. (2( He had very little time in which to decide upon hiscourse of action. (3) He was advised, wrongly, that the court’s order was madewithout jurisdiction and may have got the impression that it could be treated as amulity. (4) whether or not his advisers intended it, I think that he was left with theimpression that he could properly delay action in compliance with the order untilafter the judge had decided whether or not to rescind it and that he cancellationof the return flight soyld be viewed as part of a decision by Mr Baker to postpone557

action rather than to decline to take it. (5) His decision was expressly madesubject to any advice which might be given by Treasury counsel. (6) He hasdisavowed any intention to act in defiance of an order of the court or to holdhimself above the law, a disavowal which I fully accept. (7) He has expressedsincre regret if he acted wrongly, as undoubtedly he did.Nolan LJ regarded Mr Baker as being in contempt because heInterfered with the administration of justice by completing the removal from thecourt’s jurisdiction and protection of a litigant who was brining proceedingsagainst 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 thecourts have jurisdiction to make coencive orders against the Crown or ministersof 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 aconrcive jurisdiction would be a strong indicator as to whether the courts had thejurisdicition to make a finding of contempt. If there were no power to makeconercive orders, then the need to rely on the law of contempt for the purpose ofenforcidng the orders would rarely arise. The second reason is that, on the factsof this case, the issue is highly significant in determining the satus of the orderwhich Garland I made and which it is alleged Mr Baker breached. If that order558

was made without jurisdiction, then Mr Richards would rely on this in order wasmade without then Mr Richards would rely on this in support of his contentionthat Mr Baker should not have bveen found guilty of contempt. As Mr Richardsadmitted, the issue is of constitutional importance since it goies to the heart ofthe 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 thediecision of Factoriane Ltd v Secretary of Staae for Transport (1989) 2 ALL ER692, (1990_) 2 AC 85 and in particular by the reasoning of Lord Bridge of Hawichwho made the only speech in that case. This speech was highly influential incansing Simon Bwn) I and Mc Cowan LJ to take a different view from the majorityof the Court of Appeal as to the ourcome of the present proceedings. That casewas not, however, grimarly concerned with the question as to whether injunctiverelief was available against the Crown or its officers. It involved the allegedlydiscriminatory effect of the requirement of British ownership and the otherrequirements ofr Pc II of the Merchant Shipping Act 19988 and the associatedregulations, which prevented fishing vessels which were owned by Spanishnarionals or managed in Spain being registered under the legislation. This it wassaid contravened Community law. It was an issue of difficulty which hadaccordingly been refrred to the Eujropean Court under art 177 of EEC Treaty.The question then arson as to whether the applicants were enttled to incermrelief pending the outcome of the reference. The primary contention of the559

applicants was that it was in the circumstances a requirement of community lawthat interim relief should be available. This was an additional point as to whichCommunity law was unclear so your Lordship House decided that that issueshould also snot be determined until after a reference under art 177. This meantthat pending the outcome of the second reference your Lordships had todetermine whether interm relef should be granted under domestic law.In deciding whether under domestic law interim relef should be granted LordBridge initially examined the position without reference to the involvement ofminister. He conclude that no relief could be granted since English lawunassisted by Community how treated legislation as fully effective until it was setaside. Lord bridge described the position in these words (19989) 2 All ER 692 at703, (1990) 2 AC 85 at 142 – 143):But an order granting the applicants the interm relief which they seek will onlyserve their pupose if it declares that which Parliament had enacted to be twhelaw from 1 December 1988, and to take effect in relation to vessels previouslyregisterd under the Merchant Shipping Act) 1894 from 31 March 1989, not to bethe law until some uncertain future date. Effective relief can onbly be given if itreguires the Secretay of Stage to treat the applicants vessels as entitled toregistration 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, wouldirreversibly determine in the applicants favour for a period of some two yearsrights which are necessarily uncertain unti the preliminary ruling of the European560

Court has been given . If the applicants fail to establish the rights they claimbefore the European Court, the effect of the interim relief granted would be tohave conferred on them rights directly contrary to Parliament’s sovereign will andcorrespondingly to have deprived British fishing vessels, as defined byParliament,, of the injoyment of a substqnfial proportion of the United Kingdomquota of stocks of fish protected by the common fisheris policy. I am clearly of theopinion that, as a matter of English law, the court has no power to make an orderwhich has these consequences.Pending the outcome of the second of the second reference this conclusion wasin itself sufficient to determine the applicants appeal. However, Lord Bridge wenton to give a second reason for his decision which is derectly relevant to thepresent appeal. The second reasons is that injunctive relef is not availableagainst the Crown or an officer of the Crown, when acting as such in judicialreview proceedings. When determining this aspect of the appeal the House hadthe advantage of full argument on behalf of the Crown from junior counsel MrLaws (see (1990) 2 AC 85 at 119 – 126), as to why relief was not available, butjudging by the report the House did not bave the venefit of the very extensiveargument in favour of the contrary view based on the historical development ofproceedins against the Crown on which Mr Keatridge relied at the hearing of thisappeal. In saying this I make no criticism whatsoever of counsel for theapplicants to Factorame. It is clear that what for the Crown was a question of thetgreatest importance was for the applicants sideshow. The Crown was anxious to561

have reconsidered the dicta in two cases which indicated that in judicial reviewproceedings injunctive relief could be granted against officers of the Crown. Thefirst case was Rv Secretary of State for the Home Dept , exp Hervage (1986) 3All ER 209, (1987) QB 872. The second was R v Licensing Authority exp smithMine French Laboratords Ltd (No 2) (1989) 2 All ER 113 (1990) 1 QB 574, wherethe majority of the Court of Appeal approved the judgement of Hodgson I inHergage. In both those cases the Crown had been unable to appeal as it hadbeen successful and so the Factortance case proved an ideal opportunity inwhich to vindicate its view that the dicta were wrong. Since the decision inFactanme there has also been the important development that the EuropeanCourt has determined the second reference against the Crown (see FactortanseLtd 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 isentitled to obtain injunctive relief (including interim relief) against the Crown or anoffices of the Crown to protect his interest under community law he cannot do soin respect of his other interests which may be just as important.Before exzmining the second reason that Lord Bridge gave for his conclusion Ishould point out that I was a party to the judgment of the majority in the Smithrtine case,. In my djudgment in that case I indicated that injunctive relief wasavailable in judicial reviews proceedings not only aingainst on officer of theCrown but also against the Crown although in they dinction between our Crownand an officer of the crown real no personalagr..the greatest importance. My judgment562

in the earlier case may have coused some confusion in Factortane by obscuringthe important fact that, as was the position prior to the introduction of judicialreview, which prerogative orders are made regularly against ministers in theirofficial capacity they are never made against the Crown.Lord Bridge in determining the second issue acknowledged the importance of therelevant history in determining this issue and it is necessary for me to set out myunderstanding 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 reatedlyreterated down the centuries since medieval times, The principles on which MrRichards founded his argument are that the King can do no wrong and that theking cannot be sued in his own courts. Mr Kentridge on the other hand relied onthe equally historic principle which is intimately linked with the name of professorDicey thatWhen we speak of the “rule of law” as a characterist of our cournty , we mean notonly that with us no man is above the law, but (what is a different thing) that hereevery man, whatever be his rank or condition, is subject to the ordinary law of therealm and amenable to the jurisdiction of the ordinary trials. In England the ideaof legal equality, or the universal subjection of all classes to one law administeredby 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 thesame responsibility for every act done without legal justification as any othercitizen. The reports abound with cases in which official have been brought beforethe courts, and made, in their personal capacity, liable to punishment, or to thepayment of damages, for acts done in their official character but in excess of theirlawful authority. A colonial governor, a secretary of state, a military officer, and allsubordinates, though carrying out the commondas of their official superior, are asresponsible for any act which the law does not authorize as is any private andunofficial person. (See introduction to the sound of the law of the Constitution(10 th edn. 1965) pp 193 – 194).In the course of argument we were referred to numerous authorities whichsupported these principles. Howver, in the present proceedings what is in disputeis not the validity of the principles but the manner in which in practice they wererecondled by the courts,. The fact that the Sovereign could do no wrong did notmean that a servant of the Crown could do no wrong. Prior to the CrownProceedings Act 1947 it was long established that what would now be describedas private law rights could be established against the Crown either by brining apetition of right or in the case of on activion in tort, when a petition of right wasnot available (tobin R (1864) 16 CBNS 310, 143 ER 1148). By brining an actionfor damages against the servant of the Crown responsible for the rtion his ownname. Such an action was possible since. As was pointed out by Cockhun c inFeather 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 Crownwould afford no defense to an action brought for an illegal act committed by anofficer of the Crown.However, difficulties did exist in relation to an action against an officer or servantof 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 ofother officers or servants of the Crown since the employer’ was the Crown. Onlya servant who committed or authorized the commission of the wrong could beresponsible.The position was accurately described by Rome I in raligh v Gaschen (1898) I Ch73 at 79. In that case the plaintiffs commenced an action against the LordsCommissioners of the Atmiralty with the object of establishing that they were notentitled to eater or acquire by way of compulsory purchase land belonging to theplaintiffs and in order obtain damages for trespass and an injunction to restrainany further trespass. It was held that while the plaintifss could not sue any of thedefendants as an official body they cold sue the defendants in their officialcapacity 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 allegedtrespass now complained of by the plaintiffs, and it was in consequence of such565

order or direction that the alleged rrespass took place, or if any of the defendantsthreatened to order or direct further trespass, then they could be sued. But in thiscase they could be sued not because, but in despite of the fact that theyoccupied official positions or acted as officials. In other words – the plaintiffs, inrespect of the matters they are now complaining of, could sue any of thedefendants individually for trespasses committed or treatened by them, but theycould not sue the defendants officially or as an official body. The question.narrows itself down to thirst. Is the present action one against the defendantsas 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 theirofficial capacity, romer) considered whether he should give leave to amend. Inexplaining his decision not to give leave to amend, he stated (at 81) that to havedone so would have amounted to changing one action into another of asubstantially different character. He added that this was illustrated by the factthat: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 theform of any imertocutory injunction or final judgment that could be obtained bythe plaintiffs, and as to how and against whom such injunction or judgment couldbe enforced.566

When dismissiong the action Romer I was careful no do so sithout prejudice noany claim the plaintiffs might have against any of the defendants individually, inrespect of any trespass committed or threatened (at 82). In identifying the natureof the action, he did not confine himself merely to looking at the title examinedthe substance of the claim as it was disclosed in the pleadings.The authorities on which the plaintiffs relied in Relaigh v Goschen for seeking aninjunction against the Lords Commissioners of the Admiralty included Ellis v EalGrey (1833) 6 Sim 214, 58 ER 574. The reasoning of Shadwell V-C for grantingthe relief clained in that case is not entirely satisfactory. However, the argumentof counsel expressed the position correctly when he concluded his submission insupport of the bill,. Which included a claim for an order restraining the Lonls ofthe Treasury from making certain payments in the official capacity, by saying ofthe Lords of the Treasury, that they-Are not made parties to the bill as public functionaries, but as mere stakeholdersof the fund; and, in that character there can be no objection to their beingrestrained from making the payment as they have hitherto done, until the rightsof the opposing claimants have been determined (See 6 Sim 214 at 222, 58 ER574 at 577)The Vice Chancellor presumably accepted this argument since he described thelords of the Treasury as being mere ministerial conduct pipes for payment to theparties entitled and overruled the claim of demureer.567

Raleigh v Goschen was applied in Hutton v Secretary of State ofr Wer (1926) 43TLR 106 by Tomlio I. It is interesting to note that in latter case the ArtorneyGeneral’s submission, which was accepted by judge made it clear that for thealleged breach of statutory duty the only remedy was by petition of right unlessthe existing Secretary of State had acted wroughfully, and then he could be suedpersonally but no as Secretary of State.The position so far as dvil wrongs are concerned, prior to the 1947 Act, cansummariesed, therefore, by saying that as long as the plaintiffs sued the actualwrongdoer or the person who ordered the wrongdning he could bring an actionagainst officials personally, in particular as to torts committed bny them and theywere not able to hid behind the immunity of the Crown. This the position eventhough at the time they committed the alleged tort they were acting in their officialcapacity. In those proceedings an injunction, including, if appropriate, aninterlocutory injunction, could be granted. The problem which existed in seekinga remedy against the Crown was not confined to injunctions. It applied to anyform of proceedings and where proceedings were possbilbe by suing thevwrondoer personally then in injunction would be available in the samecircumstances as other remedies. If such a position required reconciling with thehistoric mixim as to the Crown doing no wrong, then this could be achieved by anapproach, which Mr Richards endorsed in the course of argnment by saying thatas the Crown could do no wrong, the crown could not be considered to haveauthorized the doing of wrong, so the tortsor was not acting with the authority of568

the Crown. (In this summary 1 put on one side the position with regard to a claimfor immunity on the basis of act of state. This is not relevant for presentpurposes.).The difficult which a plainfiff might have in identifying the appropriate servant ofthe Crown who was the tortfeasor in practice was overcome by the Crownnominating the individual responsible for the damage and the lack of resourcesof the defendant did not cause problems since the Treasury would make anextranet payment of compensation if it was a case where, but for Crownimmunity, the Crown would be vicariously liable. In such proceedings, if it wasappropriate for an injunction to be granted, there was no reason why this shouldnot be dose.Respect of any trespass committed or threatened (at 82). Inidentifying the nature of the action, he did not confine himself merely to looking atthe title he examined the substance of the claim as it was disclosed in thepleadingsThe authorities on which the plaintiffs relled in raleigh v Goschen for seeking aninjunction against the Lords Commissioners of the Admiralty included ells v EarlGrey *1933) 6 Sim 214, 58 ER 574. The reasoning of Shadwel V-C for grantingthe relief claimed in that case is not entirely satisfactory. However, the argumentof counsel expressed the position correctly when he conduced his submission insupport of the bill which included a claim for an order restraining the lonsls of theTreasury from making certain payments in their official capacity, by saying of thelords of the Treasury that they –569

Are not made parties to the bill as public functionaries, but as mere stakeholdersof the fund; and, in that character there can be no objection to their beingrestrained from making the payment as they have hitherto done, until the rights ofthe opposing claimants have been detenlned (See 6 Sim 214 at 22 58 ER 574 at577).The Vice Chancellor presumably accepted this argument since he described theLords of the Treasury as being mere ministerial conduct 0pipes for payment tothe Parties entitled and overtuled the claim of demureeRaligh v goschen was applied in Hutton v Secretary of State for War (1926) 43TLR 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 thealleged breach of statutory duty the only remedy was by petition of right unlessthe existing secretary of State had acted wrongfully, and then he could he suedpersonally but not as Secretay of State.The position so far as dvil wrongs are concerned, prior to the 1947 Act, can besummarized, therefore, by saying that as long as the plaintiffs sued the actualwrongdoer or the person who ordered the wrongning he could bring an actionagainst officials personally, in particular as to torts committed by them and theywere not able to hid behind the immunity of the Crown. This was the positioneven though at the time they committed the alleged tort they were acting in theirofficial capacity. In those proceedings an injunction, including, if appropriate, aninterlcutory injunction, could be granted. The problem which existed in seeking a570

emedy against theCrown was not confined to injunctions. It applied to any formof proceedings and where proceedings were possible by suitng the wrongdoerpersonally then an injunction would be available in same circumstances as otherremedies. If such a position required recontiling with the historic maxim as to theCrown doing no wrong. Then this could be achieved by an approach, which MrRichards endorsed in the course of argument, by saying that, as the Crown coulddo no wrong, the Crown could not be considered to have authorized the doing ofwrong, so the torfosor was not acting with the authority of the Crown. (In thissummary I put on one side the position with regard to a claim for immunity on thebasis of act of state. This is not relevant for present purposes).The difficulty which a plaintiff might have in identifying the appropriate servant ofthe Crown who was the toreadors in in practice was overcome by the Crownnominating the individual responsible for the damage and the lack of resources ofthe defendant did not cause problems since the Treasury would make anexgratia payment of compensation if it was a case where, but for immunity, theCrown would be vicariously liable. In such proceeding , if it was appropriate foran 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, andthe cases which applied those criticisms, of the practice of the Crown nominatinga defendant who might not have been personally guilty of any tort which wee thecatalysics 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 oneadditional development in brining proceedings against the Crown. This involvedthe grant of declaranty relief against the Crown. In Dyson V A.G (1911) 1 KB 410it was decided that it was unnecessary to have a cause of action in order toobtain declaratory relief. This opened the door to proceedings for a declarationagainst the Crown, at least where the estate of the Crown was not involved (at421), without the necessity of proceeding by petition of right.. In suchproccedings there would he no question of obtaining an injunction.So far as civil proceedings were concerned the position was transformed by the1947 Act section I enabled the Crown to be sued directly in those situationswhere 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 respectto torts committed by its servants or ages for any breach of its duties which gaverise to a tortuous liability (including a breach of statutory duty where the breachcreated a cause of action). Section 2 did not remove the right to sue the actualtortfeasor.Part II of the 1947 Act deals with Jurisdiction and Procedure. Section 17 Providesfor the Minister for the Civil Service to publish a list of authorized governmentdepartments for the puposes of the Act and requires civil proceedings against theCrown to be instituted against the appropriate authorized governmentdepartment oc, if there is no appropriate authorized department or where there is572

easonable doubt as to the identity of the appropriate department, against theAttorney General . An examination of the current list indicates that some of theauthorized departments are in fact the descriptions of the fooficial names ofindividuals or collections of individuals who head the department. Thusproceedings can be brought against a number of different Director Generals andbodies such as the Customs and Excise Commissioners or the Inland Revenue.However, theire are other authorized departments which are not linked which thenames of the head of the department, so, to take typical example, the HomeOffice and not the Home /Secretary is listed.Lord Bridge in Flatulence Ltd v Secretary of State of Transport (1989) 2 All ER692 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 courtshall subject to the provisions of this Act, have power to make all such orders asit has power to make in proceedings between subject, and otherwise to give suchappropriate relief as the cause may require: Provided that: (2) where in anyproceedings against the Crown any suc relief is sought as might in proceedingsbetween subjects be granted by way of injunction or specific performance, thecourt shall not grant an injunction or make an order for specific performance, butmay in thereof make an order declaratory of the rights of the parties; and (b) inany proceedings against the Crown for the recovery of land or other property thecourt shall not make an order for the4 recovery of the land or the delivery of the573

property, but may in lie thereof make an order declaring that the plaintiff isentitled 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 anyorder against an officer of the Crown if the effect of granting the injunction ormaking the order would be to give any relief against the Crown which could nothave been obtained in proceedings against the Crown.Before considering the provisions not 21 in greater detail, it is convenience torefer to the relevant provisions of s 23 (2) which limits the scope of Pt II of theAct, indlucing 21. The terms of that subsection are:Subject to the provisions of this sction. Any reference in this part of this act tocivil proceedings against the Crown shall be construed as a reference to thefollowing proceedings only (2) proceedings for the enforcement or vindication ofany 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 asare mentioned in Paragrah 2 of Schedule 1 no this Act, (b) proceedings for theenforce meal or vindication of any right or the obtaining of any relief which, if thisAct had not been passed, might have been enforced or vindicated or obtained byan action against the Attorney-Gneral, any government department, or any officerof the Crown as such; and (d) all such proceedings as any person is entitled tobring against the Crown by virtue of this Act, and the expression civil proceedingsby or against the Crown shall be construed accordingly.574

Section 23 (2) (2) refers to petitions of right (b) refers, incertalia, to proceedingsfor a declaration and (c) refers, inter alia, to proceedings in tort. The language ofs 23 makes it clear that Pt II of the Act does not generally apply to allproceedings which can take place in the High Court. In particular it does notapply to the proceedings, which at that time would have been bought forprerogative orders. If there is any doubt about this, that doubt is removed by thegeneral 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 otherwiseexpressly provided, the following expressions have the meanings herebyrespectively assigned to them, that is to say “Civil proceedings” includesproceedings in the High Court or the courty court for the recovery of fines orpenalties, but does not include proceedings on the Crown side of the (Queen’s)Bench Division”Proceedings for the pregorative orders were brought on the Crown sideReturning 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.. Inaddition there is the further restriction on granting an injunction against an officerof the crown under s 21 (2). That subsection is restricted in its application tostriations where the effect of the grant of an injunction or an order against anofficer of the Crown will be to give any relief against the crown which could not575

have been obtained in proceedings against an officer of the Crown will be to giveany relief against the Crown which could not have been obtained in proceedingsagainst the Crown prior to the Act. Applying those words literally, their effect isreasonably obvious. Whee, prior to 1947, an injunction couldbe obtainedagainst an officer of the Crown because he had personally committed orauthorized a tort, an injunction could still be granted on precisely the same basisas previously since as already explained, to grant an injunction could not affectthe Crown because of the assumption that the Crown could do no wrong. Theproceedings would, however, have to be grought against the tortfeasorpersonally in the same manner as they would have been brought prior to the1947 Act., if on the other hand, the officer was being sued in a representativecapcity, whther as an authorized government department, for example, one ofthe named Directors General or as Attorney General, no injunction could begranted because in such situation the effect would be to give relief against thecrown. The position would be the same in those situations where proceedingswould previously have been brought by petition of right or for a declaration butrcould now be brought against the authorized department.There appears to be no reason in principle why, if a state place a duly on aspecified minister or other official which creates a cause of action an actioncannot not be brought for breach of statutory duty claiming damages or for aninjunction, in the limited circumstances where injunctive relef would beappropriate, against the specified minister personally by any person entitled tothe benefit of the cause of action. If, on the other hand, the luty is placed on the576

Corwn in general, then s 21 (2) would appear to prevent inqunctive relief beinggranted, but as Professor Sir William Wade QC has pointed our (Injunction reliefagainst the Crown and ministers (1991) 107 LQR) there are likely to be fewsituations when there will he statutory duties which place a duty on the Crown ingeneral instead of on a named minister. In broad terms therefore saying that it isonly in those stuations where prior to the Act no injunctive relief could beobtained that s 21 prevents an injunction being granted can summarize the effectof the Act. In other words it restricts the effect of the procedural reforms that inimplementedso that they did not extend the power of the courts to grantinjunction. This is the least that cars be expected from legislation intended tomake 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 theimportance attached to it, as we shall see later, by Lord Bridge in Factortane.In Merricks the plaintiff sought a mandatory injunction against the Minister ofAgriculature, Fisheries and Food both in his personal cacity and in his capacityas minister a corporation sole constituted by stature. The injunction required theminister to withdraw the draft of a statutory scheme regulating the marketing ofpotatoes which had been laid by the minister before parliament for approvalwhen acting in his capacity as minister and also restraining him from seekingapproval of the scheme by Parliament. An application was made on vehalf of theminister in stricke out the proceedings as being misconceived. It was argued by577

the law officers on behalf of the minister that, in so far as lie proceedings werebrought against the minister in his official capacity, there was no jurisdiction togrant an injunction against a minister and in so far as the proceedings werebrough against the minister in his personal capacity he could not and did notpurport to lay the scheme in his personal capacity. It was also submitted that theminister woed no duty to the plaintiff and that, if he acted in a personal capacityhe acted as a member of Parliament, which involved parliamentary privilege. Nosurprisingly Upjohn I acced to the application. Even today in an application forjudicial neview it could be difficult to persuade a court to intervene on similarfacts to those in the Mericsk case, though in view of the decision in R v HMTreasury exp smeadly (1985) 1 All ER 589, (1985) QB 657 I do not go so far asto say it would be impossible to do so. However, the Merrricks case vas brouthtby what today can be described as pricate law proceedings and the plainfiff, mostcertainly in those proceedings was not entitled to seek any and in particularinjunctive relief,. He was seeking to enforce any legal or equitable eight to whichhe was entitled. He would as the law had so far developed lack the necessarystanding to bring the proceedings. However, Upjohn I came to the consluion thatthe minister from start to fish .. was acting in his capacity as an officerrepresenting the Crown and went on to say that as this was the position it wasconceded that no injunction could be obtained aaainst him and therefore themotion 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 ofsituation for which the plainfiff argued, the first being when the minister was578

epresenting the Crown, the third there he was acting in a purely individualcapacity and the second, which he considered created the difficulty, involving aperson designated in an official capacity but not representing the Crown. As tothe second category Upjohn I said (1955) 2 All ER 453 at 457, (19955) Ch 567 at575 – 576):It is possible that there may be special Acts where named persons have specialduties to perform which would not be duties normally fulfilled by them in theirofficial capacity: but in the ordinary case where the relevant or appropriateminister is directed to carry out the function or policy of some Act, it seems to mehe is either acting in his capacity as a Minister of the Crown representing theCrown, or is acting in his personal capacity , usually the former. I find it verydifficults to conceive of a middle classification.I do not find the scope of this statement clear. If Upjon I was intending to suggestthat it was not possible for a minister to be under a personal liability and subjectto injuctive relief for wrongs committed by him in his official capacity then it isinconsistent with the authorities ited earlier. The approach indicated by thoseauthorities 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 RoxburghI in Harper v Secretary of State for Home Dept (1954) Times, 18 DecemberHowever, that was a case heard ex parte and Upjon I did not in those579

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 onwhich 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 Departmentsued, that is to say by his official little as a Minister of the Crown. It is said bycounsel 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 themeaning of the Act, and that the Secretary of State has neither the duty to theHouse or to anyone else nor the power or authority to take this proposed Order inColuncil to Her Majesty. A am not myself satisfied that counsel for the plaintiffs isnot in this respect on the hons of a dilemma. It the whole thing is a nullity and allhe seeks to do is to restrain a particular individual, who happens at the momentto be the Secretary of State, I am not satisfied that be ought not to sue him in hispersonal capacity as for an ordinary wrong – though, in that case, it would not beclear 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 asSecretary of State, then I am not satisfied, though I express no final view it, aswe have not heard full argument, that the which, having regard to the terms ofthe Crown Proceedings Act, 1947, with lie. Moreover, I am not satisfied, havingregard to s 21 of that Act, that on this alternative the plainfiff could in any even580

obtain an injunction (see also Merricks v Heatheat . Antory (1955) 2 All ER 453 at456, (19955) Ch 567 at 574.)Upjohn I’s approach appears to treat a duty placed upon a named minister asbeing placed upon the government as a whole. This could be said to be in accordwith the approach of Lord Diplack and Lord Simon in Town Investments Ltd vDept of Environment (1977) 1 All Er 813, *1978) AC 359. However, in that caseyour Lordships house was dealing with a very different situation, namely theconsequence of agrant of a lease to a named department of government whichcan make the Crown and not the department the tenant. It is not appropriate toapply that approach to actions in tort, including actions for breach of statutoryduty, since this would mean that the 1947 Act had the surprising effect of treatingthe wrongful act of a named minister as being that of the Crown so that theminister could no longer be sued personally in tort or for injunctive relief, Thuswhile the outcome of the Merrides case was correct, the reasoning of Upjohn Iwas incorrect, if and in so far, by his remarks which have been cited, he wasseeking to suggest that a minister when acting in his official capacity could not besued personally and an injunction granted. In any event his remarks could haveno application to proceedings for the prerogative orders or judicial review whichhe was not considering.I now turn to the historical development of relief against the Crown in prerogativeproceedings. I do so because the historical development of the two sets ofproceedings have been on different lines.581

Prior to the introduction of judicial review, the principal remedies which wereavailable were certiorari, mandamus, prohibition and habeas corpus. As we areprimarily concerned with the possible availability of injunction, I will focus onmandamus andProhibition since they are indistinguishable in their effect from final injunctions.However, it should not have forgotten that, at least indirectly the other remediesare capable of having a conceive effect. In addition, as in private lawproceedings, since the Crown or a body representing the Crown is a party toproceedings, unless some express restriction exists, the Crown, like any otherlitigant, is liable to have interlocutory order made against it with which it isrequired to comply, such as an order for discovery. Historically the result ofissuing the write of certiorari was to require proceedings of inferior bodies to bebrought before the courts of chancery and common law so that they could besupervised by those courts and if necessary quashed. Habeas corpus similarlyrequired the bringing before the courts of the body of the person concerned. AsRe Thampson (1889) 5 TLR 565 vividly makes clear, the non-compliance withthe write of habeas corpus was a matter which at that time a Divisional Court ofthe Queen’s Rench Division found no difficulty in treating as contempt by acaption of one of Her Majesty’s ships.The prerogative remedies could not be obtained against the Crown directly aswas explained by Lord Deruman Cj in Rv Powell (1841) 1 QB 352 at 361, 113HR 1166 AT 1170:582

A both because there would be an incongruity in the Queen commanding herselfto do an act, and also because the disobedience to a write of mandamns is to beenforced by attachment.Originally this difficultly could not be avoided by bringing the proceedings againstnamed ministers of the Crown (R v Londs Coms of the Treasury (1872) LR 7 QB387). But where a duty was imposed by statute for the benefit of the public upona particular minister, so that he was under a duty to perform that duty in hisofficial capacity, then orders of prohibition and mandamus were granted regularlyagainst the minister. The proceedings were brought against the minister in hisofficial name and, according to the title of the proceedings by the Crown. Thelittle of the proceedings would he R v minsister exp the applicant (as is still theposition today). So that unless the minister was treated as being distinct from theCrown the title of the proceedings would disclose the incongrulty’ of the Crownsuing the Crown. This did not mean that the minister was treated as acting otherthan in his official capacity and the order was made against him in his officialname. In accordance with this practice there have been numerous cases whereprerogative orders. Including orders of prohibition and mandamus. Have beenmade against ministers. This was accept by Mr Richards as being the positionprior 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 ER1068 (1870) 1 WLR 450 (which was not cited in Factortanse) to illustrate theposition. Lord Parker CJ described the then situation of which he had greatexperience. He said (1970) 1 All ER 1068 at 1072, (1970) 1 WLR 450 at 455):583

Accordingly one approaches this case on the basis, and I confess for my partan alarming basis, that the word of the Minister is outweighing the law of theland. However, having said that, one moves on to the far more difficult questionwhether mandamus will lie. It is sometimes said as a general proposition thatmandamus will not lie against the Crown or an officer or servant of the Crown. Ithink we all know in this day and age. That of which the most recent is Padfield vMinister 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 thecase, as can be seen since as long ago as 1850 in R v Woods, Forests, LandRevenues, Works and Buildings Corars, ex parte Budge (1850) 15 QB 761 at768, 117 ER 646 at 649 Sir Frederick Thesiger expressed the proposition inargument in this form: Whenever a person, whether filling an office under theCrown or not, has a statutory duty towards another person, a mandamus will lieto compel him to perform it. “Those words of Sir Prederick Thesiger were in factadopted by Sir Alexander Cockburn CJ. There are of course, cases in which ithas been held that a serant or officer of the Cown may have as his only duty aduty towards the Crown. That, indeed, was the deciding factor in R v Treasurylords Cons (1872) LR 7 QB 3787’ but equally there are other case of R v IncomeTax 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 Crownhas also a duty towards a member of the public then provided that member of thepublic has 2 sufficient interest, mandamus will lie.584

It is interesting to note the comment by Lord Parker about mandamus not beingavailable since similar comments were sometimes made about injunctions inprivate law proceedings. Nonetheless, there were limits at that time, as LordParker indicates, to the availability of mandamus,. It was necessary that thereshould be a duty which was owed to the applicant as a member of the public theduty which was required was not a private duty which would give rise to a right todamages in the event of a breach, but a public duty. In addition the injunctions beplaced on a named minister. As already indicated, in most situation todaystatutory duties are conferred on ministers in their own name and not upon theCrown in general see Professor Sir William Wade QC Injunctive relief against theCrown and ministers (1991) 107 LQR L. Anrthermore, by the time of theintroduction of the remedy of judicial review the potion had developed so that theprerogative orders, including prohibition and mandamus, were being grantedregularly against ministers without any investigation of whether a statutory duty,whih had not been complied with was placed upon the minister or some one elsein the department for which the minister was responsible. Thus the ImmigrationAct 1971 places some duties on immigration officers and others on the HomeSecretary, but even where it is the immigration officer who has not complied withthe statutory duty it is the immigration officer who has not complied with thestatutory duty it is the practice to make an order of mandamus against theminister (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 more585

ecent developments, illustrated by the decision in the Council of Civil ServiceOnions v Minister for the Civil Service (1984) 3 All ER 935, (1985) AC 374, adistinction probably no longe has to be drawn between duties which havestatutory and those which have a prerogative scrurce.After the introduction of judicial review in 1977 it was therefore not necessary todraw any distinction between an officer of the Crown acting as such’ and anofficer acting in some other capacity in public law proceedings.The changes made in procedure introduced in 1977 by RCS Ord 53 for judicialreview were first given statutory authority by primary legislation in s 31 of theSupreme Court Act 1981. The relevant provisions of that section, which do notdiffer materially from the corresponding provisions of Ord 53, are:Application for judicial review – (1) An application to the High Court for one ormore 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 fromacting in an office to which that section applies, shall be made in accordance withrules 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 inany case where an application for judicial review, seeking that relief, has beenmade and the High Court considers that, having regard to (a) the nature of thematters 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 whomrelief may be granted by such orders; and (c) all the circumstances of the case, itwould be just and convenient for the declaration to be made or the injunction tobe granted, as the case may be.(3) No application for judicial review shall be made unless the leave of the HighCourt has been obtained in accordance with rules of court; and the court shall notgrant leave to make such an application unless if considers the the applicant hasa sufficient interest in the matter to which the application relates.(5) On an application for judicial review the High court may award damagesarising from any matter to which the application relates; and (b) the courtis satisfied that, if the claim had been made in an action begun by theapplicant at the time of making his application, he would have beenawarded damagesIn a 31 the jurisdiction to grant decarations and injunctions is directly linked tothat which aready existed in relation to the prerogative orders. The jurisdiction toaward damages by contrast is restricted to those situations where damages arerecoverable in an action begun by write. It has never been suggested that adeclaration is not available in proceedings against a minister in his officialcapacity and if Ord 53 and s 31 apply to a minister in the case of declarationsthen, applying ordinary rules of construction, one qould expect the position to beprecisely the same in the case of injunctions. As an examination of the positionprior to the introduction of judicial review indicates, because of the same of the587

emedies of mandamus and prohibition the availability of injunctions againstministers would only be of any significnacy in situations where it would beappropriate to grant interim relief. Even hury the significance of the champereduced by the power of the come to grant I may under end.Furthermore, in practice an injunction against a minster wouldve on more than a peremptory declaration because of the limitations onexecution contained in Ord 77, r 1 (2) applies to judicial review and proceedingsagainst an officer of the Crown as such.Lord Bridge in Factortance Ltd r Secretay of State for Transport (1989) 2 All ER692 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 wereto be construed in isolation there would be great force in the reasoning that s 31did enable injunctions to be granted for the first time against ministers of theCrown in judicial review proceedings (see (1989) 2 All ER 692 at 708, (1990) 2AC 85 at 149). Why then did Lord Bridge come to the conclusion that aninjunction could not be granted against a minister in proceedings for judicialreview?A primary couse for Lord Bridges taking this view was that he concluded that itwould be dramatic departure from what was the position prior to the introductionof judicial review for an injunction to be available against the Crown to be madeonly py express legislation. His conclusion was not however, based on ascomprehensive on argument of the history of both civil and prerogative588

proceedings as was available to your lordships. In particular he did not have anaccount of the development which had taken place in the granting of prerogativeorders against ministers, which meant that in practical terms the onoyconsequence of treating s 31 as enabling injunctions to be granted againstministers acting in their official capacity would be to provide an alternative inname only to the orders of prohibition and mandamus which were alreadyavailable 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 MerricksHeathcoat – Arrory (1955) 2 All ER 453, (1955) Ch 567, a judgment which asalready indicated, should be approached with caution. Lord Bridge was alsoinfluenced by the fact that the new Ord 53 was Introduced following the LawCommission’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 ofjurisdiction to grant interim injunctions against the Crown and recommended thatthe problem should be remedied by amending s 21 of the 1947 Act. The reportincluded a draft of the legislation proposed. This proposal of the LawCommission was never implemented. Instead the decision was taken followingthe Law Commission was never implemented. Instead the decision wa takenfollowing the Law Commission’s report to proceed by amendment of the rules ofthe Supreme Court other thanmeant that s 31 of589

the 1981 Act should be given a restricted interpretation (1989) 2 All ER 692 at708 (1990) 2 AC 85 at 149 – 150):First a 31 (2) and Ord 53, r 1 (1) being identical terms, the subsection and theparagram must have the same meaning and the paragraph, if it purported toextend jurisdiction, would have been ultra vires. Second, if Parliament hadintened to conter on the court jurisdiction to grant interim injunctions against theCrown, it is inconceivable, in the light of the law Commissions recommendationin para 51 of its report, that this would not have been does in express termseither in the form of the proposed d 3 (2) of the Law Commissions draft Bill or byan enaclunent to sosme similar effect. There is no escape from the conclusionthat this recommendation was never intended to be implemented. Third, it isapparent from s 31 (3) that the relief to which s 31 (2) applies is final, as opposedto interlocutory, relief by s 31 (2) a declaration may be made or an injunctiongranted 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 HighCourt has been obtained in accordance with rules of court Under the rulesthere are two stages in the procedure: first, the grant of leave to apply for judicialreview on ex parte application under Ord 53, r 3 (10) which by its terms enablesappropriate interim relief to be granted by the court at the same time as it grantsleave to apply for judicial review. This point appeared to mea at first blush to beone of some technicality. But on relfection I am safisfied that it onclusively refutesthe views that s 31(2) was intended to provide a solution to the problem of the590

lack of jurisdiction to grant interim injunctions against the Crown. The form of finalrelief available against the Crown has never presented any problem. Adeclaration of right made in proceedings against the Crown is invariablyrespected and no injunction is required. If the legislature intended to give thecourt jurisdiction to grant incerim injunctions against the Crown, it is difficult tothink of any reason whey the jurisdictions should be available only in judicialreview 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 injudicial review proceedings cannot possibly have been so intended.” (LordBridge’s emphasis.)This is a very closely and carefully argued justification for adopting a narrowapproach to the effect of s 31 of the 1981 Act. It deserves very careful attentioncoming, as it does from a judge who is acknowledged to have made anoutstanding contribution to this areas of the law. Noetheless. I do not regard it asjustifying limiting the natural interpretation of s 31 so as to exclude the jurisdictionto grant injunctions, including interim injunctions, on application for judicial reviewagainst 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 reviewwas not first introduced by primary legislation. Primary legislation could haveintroduced, the primary legislation, the Judicature (Northern Ireland) Art 1978,came first and was followed by a subsequent amendment of the Rules of the591

Supreme Court (Northern Ireland) involving a new Or. 53 which came intooperation on 1 January 1981.The fact that in Ringland and Wales it was decided that an amendment to theRules of the Supreme Court should precede primary legislation did mean that itwas inevitable that the recommendation of the Law Commission that s 21 of the1947 Act should be amended had to be abandoned. However, this decision notto amend s 21 is not really surprising veering in mind that the exercise in handrelated to public law proceedings while s 21 dealt with private of civil lawproceedings. Not having dealt with s 21 at the ouset it was natural that, as s 31was merely cinfimatory of the changes already made, it should not deal with s 21either.Order 53 undoubtedly extended the circumstances in which a declaration couldbe granted against the appropriate representative of the Crown. Prior to theprerogative proceedings. Furthermore, there are situations where no declarationcould be obtained in private law proceedings against the Crown without theassistance of the ?Attornye general in circumstances in which it is now availableon judicial review. It is not suggested that Ord 53 was ultra versa in allowingdeclarations there is no reason why it should she regarded as being ultra vires inrelation to injunctions, albeit that the effect is that an injunction cannot beobtained against a minister of the Crown where previously only an order ofmandamus or prohibition could be obtained. However, if Ord 53 were to be592

egarded as being open to challenge on this ground, this would explain why theunusual course was taken, a change having been introduced by an amendmentto the Rules of the supreme court, of confirming the amendment a substantialperiod later by the 1981 Act. As a matter of construction it is difficult to treat theprovisions as to injunctions in Ord 53 and s 31 as not applying no ministers, butas doing so in the case of the other remedies. This difficulty is underlined in thecase of Northern Ireland since the interpretation section, s 118 (1) , of the 1978Act expressly provides that it should bind the Crown, but in a restricted manneras respects civil proceedings to which the Act of 1947 applies. It would thereforebind 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 interiorrelief as it considers appropriate. It would, therefore, seen to be difficult to saythat there is no power to grant interim injunctions against ministers in NorthernIreland.If this is the effect of the Northern Ireland legislation the position is likely to be thesame in England and Wales, though the position is different in Scotland. InFactortame 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 judicialreview. It provides:Where leave to apply for judicial review is granted, then – (a) if the relief soughtis an order of a prohibition or certiorari and the court so directs, the grant shall593

operate as a stay of the proceedings to which the application relates until thedetermination of the application or until the court otherwise orders, (b) if anyother relief is sought, the court may at any time grant in the proceedings suchinterim relief as could be granted in an action begun by write.So far as respondents other than ministers are concerned, the provisions of Or53, r 3(10)(b) have always been treated as giving the court jurisdiction to grant.this is conformed to be the position by the decision of the court ofAppeal in R v Kenstangion1 All ER 1202, (1989) QB 518. The power of the court to grant interim injunctionsis linked to the power of the court to grant final injunctions. If the court has thepower to grant a final injunction against a minister it must surely have the powerto grant an interim injunction and vice versa. This is confirmed by s 37(1) of the1981 Act , which provides:The High Court may be order (Whether interlocutory of final) grant an injunction 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 similarlylinked 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 untilleave is granted, this does not mean that s 31 (2) restricts the court’s jurisdictionto grant interim or final injunctions until after leave has been given and this hasbeen followed by lodging the formal application with the court. This would be594

quite out of accord with practice, which has always been followed on judicialreview and would involve the expense and delay of two hearings when at presentthere is usually one. The clear intent of Ord 53, r 3(10) is that the court where itconsiders an application for leave at an oral hearing should deal with questionsof 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 Bridgeregarding the language of s 31 (2) and s 31 (3) together with Ord 53, r 3 (10) asconclusively refuting the view that s 31 (2) was intended to provide a solution tothe problem of the lack of jurisdiction to grant interim injunctions against theCrown but he was not able to do so. Prior to the introduction of Ord 53 there wasthe same problem of the inability to grant interim injunctions against bodies whichhad 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 itmust surely follow that ifs 31(2) gives the court jurisdiction to grant finalinjunctions against ministers it must also provide the jurisdiction . Counsel for theapplicants in Factortame did not reply to the Crown’s submissions on this aspectof the case and I expect this explains why in Factortame the position wasmisunderstood.I am, therefore, of the opinion that, the language of s 31 being unqualified in itsterms, there is no warrant for restricting its application so that in respect ofministers and other officers of the Crown alone the remedy of an injunction,including an interim injunction, is not available. In my view the history of595

prerogative proceedings against officers of the Crown supports such aconclusion. So fa as interim relief is concerned, which is the practical changewhich has been made, there is no justification for adopting a different approachot officers of the Crown from that adopted in relation to other respondents in theabsence of clear language such as that contained in s 21(2) of the 1947 Act. Thefact that in any event a stay could be granted against the Crown under Ord 53, r3 (10) emphasizes the limits of the change in the situation which is involved. Itwould be most regrettable if an approach which is inconsistent with that whichexists in Community law should be allowed to persist if this is not strictlynecessary. 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 togrant interim and final injunctions against officers of the Crown does not meanthat that jurisdiction should be exercised except in the most limitedcircumstances. In the majority of situations, so far as final relief concerneddeclaration will continue to be the appropriate remedy on an application forjudicial review involving officers of the Crown. As has been the position in thepast, the Crown can be relied upon to co-operate fully with such declarations. Toavoid having to grant interim injunctions against officers of the Crown, I can seeadvantages in the courts being able to grant interim declarations. However, it isobviously not desirable to deal with this topic, if it is not necessary to do so, untilthe 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 orderin granting the injunction. The injunction was granted before he had given theapplicant 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. Itwould be undesirable if, in the situation with which Garland I was faced, he hadbeen compelled to grant leave because he regarded the case as an appropriateone for an interim injunction. In the case of civil proceedings, there is recognitionof the jurisdiction of the court to grant interim injunctions now under Ord 53. Theposition 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 aninterlocutory injunction or other interim relief pending the hearing of theapplication for leave to move for judicial review. But, if the judge has refusedleave to move for judicial review he is functus officio and has no jurisdiction togrant any form of interim relief. The application for an interlocutory injunction orother interim relief could, however, be renewed before the Court of Appeal alongwith 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, itcannot 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 to597

set aside the order though his decision to do so was inevitable having regard tothe state of the authorities at that time.The effect of the advice received by Mr BakerHaving come to the conclusion that Garland J’s order was properly made, thenext question which has to be considered is the effect of the advice which wasunderstandably given to Mr Baker that the order was made without jurisdiction.Here there are two important considerations. The first is that the order was madeby the High Court and therefore has to be treated as a perfectly valid order andone which has to be obeyed until it is set aside: see the speeches of Lord Diplockin 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 97at 102.The second consideration is that it is undesirable to talk in the terms of technicalcontempt. The courts only make a finding of contempt if there is conduct by theperson or body concerned wich can, with justification, be categorized ascontempt. 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 accordanceeith legal advice) that it is reasonable to defer complying with an order of thecourt until application is made to the court for further guidance then it will not becontempt to defer complying with the order until an application has been made tothe court to discharge the order. However, this course can only be justified if theapplication is made at the first practicable opportunity and in the meantime598

IN THE HIGH COURT OF TANZANIAAT SONGEAMISC. CIVI APPL. NO. 3 OF 19941. NYIRABU CITANO NYRABU2. HAGAI ENOCK MWAKALENDIYE ..APPLICANTS3. ADRIANO CITUMBE MATIKU4. RAMADHANI MBUJIVERSUS1. BOARD CHAIRMANSONGEA BOYS SECONDARYRESPONDENTSSCHOOL BOARDHEADMASTER,SONGEA BOYS SECONDARYSCHOOLRULINGSAMATTA, J.K.This is an application by way of notion field on behalf of Gitano Nyirabu (the firstapplication), Hagai Enock Mwakalendile (the second applicant), Adriano Citumbematiku (the third applicant) and Ramadhani Mbuji (the fourth applicant for thefellowing orders.(1) an order of certiorari to bring up and quasha decision madeby the Board of Songea Boys’ Secondary school599

(heareinafter rerred to as the Board) expelling he fourapplicants from the school;(2) An order of mandamus directing the Board to consideratedand determine the occasion(3) In the alternative to the two prayers above, an order ofprohibition, restraining the first and second respondentsfrom dealing with the Applicants’ case however.The application has been strenuously contested by Mr. Shio, Senior StateAttorney on behalf of all the respondents.The following facts are not disputed in this application. The four applications wereForm six students at Songea Boys’ secondary school. On October 25, 1993,there was a geral unrest at the school involving students who complained ofmaladministration, infliction of unreasonable punishments and supply of food,among others, the respondent one on this point is that only some of the studentswere involved in the disturbances. It is common cause, however, that on thefollowing day some students the respondents estimate than to be between 100and 150 in number – narched from the school to Songea town intending to airtheir grievances to the Regional Commissioner. The latter directed that theDistrict Commissioner and the Regional Education Office should handle thematter. The second, third and fourth applicants and another student wereselected to represent fellow students and themselves when meeting the twoofficers. The efforts of the two officers failed to solve the problem and 27 th600

October; 1993, the Regional Commissioner had, therefore, to visit the school witha view to restoring tranquility as the school. He met students as well as membersof staff and after doing so he directed that students return to classrooms while aprobe team he formed, comprising of four government officials, investigated theircomplaints. The probe tear carried out its duties owiftly. It interviewed six schoolleaders and three students, including the second applicant. None of theremaining applicants was interviewed. The team did not interview of him wasrestricted to the stundents grievances. The team collected some informationwhich in its view justified the expulsion of the our applicants from the school.None of the applicants was afforded any opportunity to contradict, correct orcoment on that information. The team recommended to the Board that the fourstudents, 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 weresubsequently informed of Board’s decision and a letter was sent to each parentinforming then of that decision. The four letters were identical in contents. Thereason given for the explations was that the applicants were the righ-leaders ofthe students’ strike and caused turmoil at the school.Does this court have jurisdiction to grant prerogative of certifiorari andmandamus in this matter? This is one of the questions I ask myself and which Iwill endeavourer to answer in this ruling. It can be stated without any fear of601

contradiction, I think, that it is an established principle of law that the actions of astatutory decidion – making body or tribunal may controlled by this Court injudicial review proceedings if there has been a defect in decision – makingprocess 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 thecorresponess of this proposition. The learned Senior State Attorney’s contentionwas, as I understood it, that the only remedy available to the applicants in thismatter is appealing under paragraph (2) of regulation 10 of the NationalEducation (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 orexclusion of a pupil from a school shall be final and binding.(2) Any person aggrieved by the decision of the School Committee or schoolboard may appeal to the appropriate Appeal Board.As I understand the law, the fact that a legislation provides an extra-judicialremedy by way of a domestic appeal does not per se give rise to an implicationthat the legislature’s intention was to oust the Court’s jurisdiction completely. Toput it differently, the existence of a statutory right of appeal does not take awaythe right of an aggrieved party to apply folr prerogative orders. It must not beforgotten that whereas an appellate tribunal can make a substitution of itsdecision for that of the inferior trigunal, as a general rule, unless there is a602

statutory authority for doing so, the tribunal cannot command the inferior tribunalto conduct its own inquiry de novo and in accordance with the principles ofnatural justice, a relief which can be granted only by a court of law. It is alsoimportant to remember the salutary words of DENNING L.J. in R v MedicalAppeal Tribunal ex parte Gilmore (19951) 1 All ER 796 at p. 801“..on looking against into the old books I find it very well settled that the remedyby certiorari is never to be taken away by any statute except by the most clearand explicit words. The word “final” is not enough. That only means withoutappeal. It does not mean “without recourse to certiorari”. It makes the decisionfinal on the facts, but not final on the law. Notwithstanding that the decision is bya statute made “final” certiorari can still issue for excess of jurisdiction or for errorof 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 whatLORD ATKIN SAID I RAS Behari lal v The King Emperor 50 T.L.R.1 (cited in thecommentary 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 lawLord 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 musthave been intended to mean, an order in law. Of course, it does not matter thatthe order in question lacks merits. An order may be erroneous on merits, but itstill 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 isnot an order in law, then there is no order. As a general rule, an order of adomestic tribunal affecting the rights or interests of an individual made withoutcomplying with the principle of natural justice is not order in law. Such an order isa nullity. And as already remarked, any provisions purporting to oust thejurisdiction of this Court of granting order of certiorari must be couched in veryolger 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 todefend themselves before the Board or to offer explanations, if any, on theiralleged misconduct. According to the learned Senior State Attorney, a student’sright to defend himself exists only when he (the student) has lodge an appealagainst the Board’s decision to expel him, and he can exercise that right onlybefore the regional appeals Board. This is the effect, according to Mr. Shio, of604

egulation 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 maya) hear, receive and examine evidence’b) summon any person to attend any hearing of the Appeals Board to giveevidence or to produce any document or other thing in his possession, toexamine him as a witness or require him to produce any document orother 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 theregulations do not contain any provisions which require the Board to afford astudent an opportunity to defend himself. But in my opinion that silence in theRegulations does not by itself mean that the Board is not bound to comply withthe principles of natural justice when considering serious accusations against astudent. It mya be useful to quote in extensor here what SIR KENNETHO’CONNOR, P., whose judgment the other two members of the Court SIRALASTAIR FORBES, V.P., and GOULD, J.A., concurred with, said in HypoliteCassiano De Souza v Chariman and Members of the Tanga Town Council(1961)605

East Africa 377. In that case the learned President Formulated general principleswhich he said should guide statutory domestic or administrative tribunals. Hesaid, ct pp. 386 – 387:“The general principles which should guide statutory domestic or administrativetribunals sitting in a quasi-judicial capacity are will know. The authorities arereviewed 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 besummaried as under:(1) If a statute prescribes, or statutory rules or regulations binding on thedomestic tribunal prescribe, the procedure to be followed, that proceduremust be observed; As LORD SHAW OF DUNFERINCLINE said in LocalGovernment Board v Arlidge (1915) AC 120, at p. 130 “If a statuteprescribes 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 betaken 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 thatsome form of inquiry must be made such as will enable the tribunal fairlyto 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 doits best to act justly and to reach just ends by just means )per LORDSHAW in Arlidge’s case). It must act in good faith and fairly listen to bothsides. It is not bound, however, to treat the question as if it were a trial: itneed not examine witnesses; and it can obtain information in any way itthinks best: per LORD LOREBURN, L.C., in Board of Education v Riceand others, (1911) A.C. 179, at p. 182; and Arlidge’s case. A member ofthe tribunal may, it seems question withnesses in the absence of the othermembers of the tribunal and of the defendant and it is not necessarily fatalthat the evidence of witnesses (including that of the complainant) mayhave been taken by the tribunal in the absence of the defendant:University of Ceylon v Fernando, at p.636 and p. 639. In this respectFernando’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 landTribunal ex parte Bracey. (1960) 1 W.L.R.911 at p.913:“It (certiorari) goes where there has been a breach of some principle ofnatural justicelike receiving evidence from one party in the absence ofanother.”And se per GREDER, L.J. in Errington Minister of Health, (1935) 1 K.B. 249at p. 268“he must do it in accordance with the rules of natural justice that is to say hemust 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. Ministersof 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 FernandoA fair opportunity must be given to those who are parties to the controversayto correct or contradict any statement prejudicial to their view board ofEducation v Rice and others and to make any relevant statement they maydesire to bring forwad: De Verteuil Knaggs: General Medical Council vpackman. (1943 A.C. 627 641.The tribunal should see that matter which has come into existence for thepurpose of the quasi-lis is made available to both sides and, once the quasilishas started, if the tribunal receives a communication from one party or froma 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 advorseconsequences on the life of the student concerned. It would, I think, shook theright 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 ableto say a word in his defence. In my considered opinion the mere severity of608

the penalty demands notwithstanding the silence of the regulations on thepoint, that the student should not be condormed unheard. Statutory domesticor administrative tribunals would dwell to remember, when discharging theirnot unimportant functions, the focus words of MEGARRY, J., in John v Reesand Others (1969) 2 All E.R. 274, at p. 309:“It may be that there are some who would decry the importance which thecourts attach to the observance of the rules of natural justice. “ Whensomething is obvious”, they may say, “why force everybody to go through thetiresome waste of time involved in framing charges and giving an opportunityto be heard? The result is obvious from the start.” Those who take this viewdo not, I think, do themselves justice. As everybody who has anything to dowith the law well knows, the path of the law is strewn with examples of openand shut case which, some how, were not: of unanswerable charges which,in the event, were completely answered; of inexplicable conduct which wasfully explained; of fixied and unalterable determinations that, by discussion,suffered a change. Noy are those with any knowledge of human nature whopause to think for a moment likely to underestimate the feelings of resentmentof those who find that a decision against then has been made without theirbeing 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 couplywith the principles of natural justice laid down by SIR KENNETH O’CONNOR,P., in Do sounce’s case suprg. Especially the second, third and fifth609

principles. With considerable amount of ingenuity, Mr. Shio submitted that thepeculiar natural of student’s affairs demands that a school Board acts swiftlywhen dealing with delicate situations involving discipline at the school. I canappreciate the force of this argument, but I do not think the contention iscapable of constituting a justification in law for the Board’s omission to givethe applicants opportunity to correct, contradict or comment on what wasalleged against then. Speed is no doubt a good thing but fairnoss is beteer. Itis utterly wrong for a school board to a crifice the latter at the later of theformer. Be that as it may, if a school Board is of the considered view that theinterests of the school community or the community at large demand that anaccused student be immediately separated from the rest of the schooloccumity, it can sufficiently protect those interests by suspending the studentfrom the school pending inguiry. The school Board need not give the affectedstudent opportunity to show cause why be should not be so suspended. Thisis because principles of natural justice do not apply to suspension pendinginquiry: 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 principlesof natural justice. Having expressed that view, I ask myself this question: isthere need of proof of prejudice when non-observance of principles of naturaljustice 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 the610

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 ruledependent on whether it would have made any difference if natural justicehad been observed. The non-observance of natural justice is itself prejudiceto any man and proof of denial of natural justice is unnecessary. It ill comesfrom a person who has denied justice that the person who has been deniedjustice is not prejudiced.”In De Souza’s case supra, Sir KENNETH O’CONNOR P., cited with approvalthe following passage from the judgment of LORD WRIGHT in GeneralMedical Council v Sparkman (1943) A.C 627 at p. 644:“ If the principles of natural justice are violated in respect of any decision, it isindeed immaterial whether the same decision would have been arrived at inthe absence of the departure from the essential principles of justice. Thatdecision must be declared to be no decision.”In the application now before no I have hold that Board arred in not complyingwith 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 ofopinion that the fact – it be a fact – that the board would have made the samedecision if it had not violated the principles of natural justice cannot cure thenullity 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 prohibitionwould, bearing in mind the Regional Commissioner’s alleged. Announcementthat the formation of the probe team to inquire into the students’ complaintswould be the closing chapter of the events which took place at and outsidethe school following the raising of complaints by students, be a more justorder 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 opinionthat the argument is singularly devoid of merit. Assuming that the regionalCommissioner did make the alleged announcement, I must say at once thatthere is no provision in any legislation, whether principal or otherwise, andthere is no principle or rule of common law which makes the allegedannounce legally binding on the Board. There is, therefore, no basis forissuing an order of prohibition in this case.A decision of a domestic tribunal affecting the rights or interest of anindividual which is made in violation of the principles of natural justice is nodecision in law. Such a decision is a nullity. Inspite of the ingenuity which hasbeen expended by Mr. Shio in his gallant attempt to persuade to hold that theapplication ought to be dismissed, I am of the settled opinion that the ordersfor expulsion whose validity the applications have challenged fall under thiscourt’s as every lawyer knows, are discretionary remedies. Viewing the meritsand equities of the application I have no doubt that justice demands that the612

first two prayers, to wit, orders of certiorari and mandamus be granted.Accordingly, the Board’s decision expelling the four applicants from SongeaBoy’s Secondary school is quashed and the Board is directed to consider theaccusations made against the applicants de novo and in accordance with theprinciples 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 doubtall that in dealing with the accusations made against the applicants theBoard was actuated by the best natives, but even those natives cannotjustify 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 reportsconcerning disturbances which have recently occurred at some of thesecondary schools in the country. Since the temple of justice I am sitting inis a court of law and not a court of sentiment, those reports are mattrswhich I could not, in law, properly take into account in determining theapplication.The application is granted as indicated. The applicants will have their costs.B.A SAMATTAJAJI KIONGOZI613

Delivered at Songea in open court this 25 th day of March, 1994, in the presenceof Mr. Mbogoro, Counsel for the applicants and Mr; Shio counse fortherespondents.CIVIL CASE NO. 53 OF 1990OBADIAH SALEME ..PLAINCIFFVERSUSDODOMA WINE COMPANY LTD .DEFENDANTJUDOMENT .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 fromhis employment on 18 th December 1986 and got paid his terminal benefits. Thedispute was reformed to the Worker’s committee at his place of employment,and the Committee found him innocent. The employer reformed the matter to theConciliation board.Before I proceed I wish to refer to the charges that were leveled against theplaintiff. There were four charges. First that plaintiff as a production Supervisorhad failed to report to the management about the misuse of the company’sbottling plant after official hours by an unauthorized persons. Secondly that theplaintiff as a Production Supervisior had failed to report to the management thatsome illegally prepared wine was being sold by the Mini-super Market in DodomaMunicipality, passing off as wine prepared by the defendant company. Thirdlythat the plaintiff as a production supervisior was stealing some botytles of wine614

and illegally taking then away from the factory. Faurthly that the plantiff hadwritten three irreasiposible letters to the Minister for Agriculture, to Mirigamo andto the Member of Parliament for Dodoma Urban, complaining about the badmanagement obtaining at the defendant company,. It is there four charges thatthe plaintiff was acquitted of by the worker a committee.The conciliation board declared . to hear the dispute on merits. It held that sincethe plaintiff had accepted payment of the terminal benefits, then he had forteitedhis right to complain to the conciliation board. It further held that by acceptingpayment of the terminal benefits, the plaintiff had concurred with the terminationgiven out by his employer and so he is stopped from lodging a complaint to theconciliation Board. The plaintiff appealed against that decision to the Minister forlabor.The Minister for labour also declined to hear the appeal on merits differentground from that given by the conciliation Board.The minister for labour hold that the decision of the Conciliation Board was fouland void because it heard a dispute roamed to it which was time barred. TheMinister said that according to the law, a complaint to the conciliation Board hasto be filed within 14 days from the day the employed was terminated fromemployment. In this case the employee was terminated from employment on18/12/1996 at filed his complaint to the conciliation board on 8/1/1987 which washome 21 days from the day of termination from employment. And to the Minister615

held that the decision by the Management of termination from employment of theplaintiff would stand.After that the plaintiff filed misc. Civil Cause No. 2.of 1989 applying for leave toapply for orders of cultiorari and mandamus. He wanted the High Court if quashthe decision of the Minister for labour and order him to hear the appeal of Ms onmerits. That application for leave was refused by masaneto Judge on the groundthat prerogative orders are not to be invoked who there is a contractualrelationship between the applicant and the respondent. The learned judge statedthat, that was in accordance with the decision of the Vrs, Frederick Kibwana: CivilAppeal 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 nojurisdiction to hear this case.Sshe arguard that the jurisdiction of this court had been ousted by s.27(1), thesecurity of employment Act Cap. 574. The preliminary objection was upheld, andI held that this court has no jurisdiction because the decision of the Minister couldonly be challenged by mean of prerogative orders of certiorari and mandamus. Isaid that it was imprint to file an ordinary Civil suit to challenge the decision of theMinister. Later the plaintiff file on application for review on the ground that isdecision was give per incuriam.616

I conceded that as wrong in view of the two decisions of the Tanzania Court ofAppoal in Patman garments Industries Ltd, Vrs Tanzania Manufacturers Ltd:(1981) T.L.R. 303 and D.R. Kaijage vrs, Esso Standard Tanzania Ltd: CivilAppeal No. 10 of 1982.In fact those two decisions have been confirmed by the full court of the TanzaniaCourt of Appeal in the case of Esso Standard Tanzania Ltd. D.R. Kaijage: Civilappeal No. 6 of 1989 whose decision was delivered on 2/8/1990. In Kaijage CaseCivil 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 hascreated a new general substitute of judicial review for the normal procedure ofjudicial control of administrative action by means other than prerogrative orders.The decision expands judicial review to encompass ordinary civil suits instead ofbeing 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 inhere end as was the case in Patman’s case (supra), in Kaijage case (supra) andin Mahona vrs, Unviversty of DSM: (1981) T.L.R. 55. The official who decided theimpugned administrative act is not made respondent, but his decision isnevertheless challenged in a collateral suit. In patman’s case (spurn) the saidproblem was referred to, however Mwakasendo J.A brushed it aside by stating atp.310 that if th defendant wanted the public official concerned to defend his617

impugned decision, thenb the said defendant was at liberty to apply to have thesaid public official included as 2 nd respondent, but that it was not necessary to doso 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 asopportunity of being heard.Secondly, one does not know where the High court derives its power tochallenge on administrative decision in an ordinary civil suit. When the courtsinterfere with an administrative decision by means of prerogative orders theyderive 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 thatprovision, the High Court is required to occurcise its supervisory role to ensurethat a tribunal or such body below acts in accordance with the Law. The highcourt ansures that the inferior tribuna does not exceed it s jurisdiction whichParliament has conferred on it and the High Court does so despite the quoterclauses – see the decision of the Tanzania Court of Appeal in A.C. Vs LeginoiNdenai: (1980) T.L.R. N 215 in which the court adopted the holding of LordVilborforce in the English case of Anisminic Vrs. Foreign CompensationCommission: (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 beenpermissible to ask and to answer and it must follow that examination of its extentis not precluded by a clause conferring conclusiveness, finality. Or618

unquestionability upon its decisions. These clauses in their nature can onlyrelated 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 ofinferior tribunals by means of prerogative orders and that power derivas fromCap. 360 as amended by Act No.55 of 1968 as indicated above. But where doesthe High Court get its power to interfere with administrative decision in anordinary civil suit? Admittedly, in the Kaijage case (supra the Tanzania Court ofAppeal was emphatic that though an ordinary civil suit may be filed to challengean administrative decision, yet the scope of judicial review, in the presence of theouster clause was to be confined to examining as to whether the decision makerwent 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 TanzaniaCourt of Appeal held that the High Court had no jurisdiction to try the suitbecause in that case the employee was not challenging any ministerial decisionwhich was made in excess of jurisdiction or in breach of the principles of naturaljustice. It said that the ex-employee in the Karatu case was simply suing hisemployer for damages for failure to employment despite the order of the Ministerfor labour this is not the plaes respell the decision in the ..butone may legistionately ask as to whether Masatu was not simply enforcing thedecision of the Minister for Laour of reinstatemtn by mean of a civil suit as hewas 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 reinstatehim. He was not challenging his dismissal. Which is the only matter precluded bythe ouster clause. Be that as it may, even if the High Court in an ordinary civil suitis to be confimed to examining the validity of the ministerial decision, thequestion still remains as to where does the HIGH Court derive its jurisdiction tochallenge the administrative decision when the prerogative orders are notinvolved, as indicated above, it is only by means of prerogative orders underCap. 360 that the High Court can exercise its supervisory role over inferiortribunals.Thirdly, since an ordinary civil suit would suffice, it now means there is no needfor the plaintiff to apply for leave to file that suit, unlike the case whereprerogative orders are invoked. The restriction of having first to apply for leave isimportant because it was meant to check in the bud frivolus or ambarassingchallenges of administrative decisions and the restriction under Cap.360 thatjudicial review should be applied for within six months from the day decisionchallenged occurred is also now gone.Fourthly, and this is the most important, it now means that because the HighCourt is hearing an ordinary civil suit and not exercision judicial review perse, thedispute in the suit can be heard on merits instead of leaving the decision of thematter to the decision maker of an administrative act in question. Thus in thePartman’s case (supra) the Tanzania cpourt of appeal took to itself the task of620

deciding what the decision-maker should have decide after declaring his decisionnull and void and thereof after considering the merits of the case it delared theplaintiff the lawful owner of the plot in dispute. Traditionally (where onlyprerogative orders were invoked to challenge an administrative decision) theCourt would have issued an order of mandamus to commond the decision –maker concerned to devide afresh the matter in accordance with the law,. Forexample, that that was done is the case of Ally Linus Vrs Tanzania HarboursAuthority: 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 declaringhis decision void.That is a the necessary collarary of ongrafting the power of judicial review in anordinary civil suit. This practice of usurping the power of the decision – makerwas again invoked in the Mahong case (supra) which followed suit, the decisionin the Patman’s case. The Mahuna case is remarkably similar to this case, and inthere Kisanga J. (as he then was) declared the decision of the Minister for labouras void. That was o.k. But he went further and decided the dispute on meritsinstead of ordering the Minister to decide the Matter in accordance with the law.Consequently after considering the marits of the case, the learned judgedeclared that the plaintiff was unalwafully commated and that he was still anemployee of the defendant from the day of the purported termination up to theday of judgment and that he was entitled to all his emoluments and benefits up tothe day of judgment. It is because the court cannot and could not issue an orderof 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 thedecision of the minister when there is no order of corturari applied for norgranted? Perhaps the latter question can be ansered by stating that a voiddecision need no formal quashing order, as it is a decision which is nonexistencein law.The mere fact that the legical conclusion of the Accisions of the Tanzania Courtof Appeal is to the affect that the courts themselves can decide the dispute onmerits instead of remandong it to the requisite decision – maker loads tomonstrous results. The courts may rightly be accused of usurping power of theadministrates and members of the executive. Thus the present case raises inacute form the constitutional problem of separation of powers betweenParliament, the Executive and the Courts. There is a timely reminder of the limitof the Court’s powers by Lord Brightman of the House of Lords of England in thecase 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-makingprocess. Unless that restriction on the power of the court is observed, the courtwill in view, under the guiso of preventing the abuse of power, be itself guilty ofusurping power’.And on the some point Lord Samon of the rise of Lords in the case of Secretaryof State Vrc, Nottighamshire Country council: (1986) L.R.C. (Const.) 769 hassafed to the affect that:“Judicial review is a grant weapon in the kinds of the judges:622

ut the judges must observe the constitutional limits set by our parliamentarysystem upon their exercise of this beneficent power.”“The courts have a special role to play in curbing anomaliesor aberrations reach arise in policy implementation through over-zealousness,misinterpretation of policy, lack ofexpertise, inefficiency or inevitably had faith. By so doing, not only would thecourts guarantee their own future, but they would contribute significantly to theeffectiveness 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 powerof the courts is confined to declaring the decision of the administrator as void ifthere is an abuse of power but that, that does not empower the courts to takeupon themselves the power of deciding what that administrator should havedecied. 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 aMinister or his department. If it is found that this power has been exercisedimproperly or mistakenly so as to infringe unjustly on the LEGISTIMEATORIGHTS AND INTERESTS OF THE SUBJECT, THEN THESE COURTS MUSTSO DECLARE. They stand, as ever, between the executive and the subject, as623

Lord alkin said in a famous passage, alert to see that any corcise action isjustified in low. To which I would add: alert to see that a powerconcretionary power is not untrammolled. It has tobe exercised with a due sense of responsibility. I has to be exercised wisely andwith due judicial restraint; and only whom the prerogative orders have beeninvoked. If judicial review has the aforesaid widespread effect on governmentadministration, can there be any farms those tis any truly became an instrumentof sabotaged. In my view, there is, and it lies first in the failure to follow thenearby road of judicial legitimacy in avoiding breach of the limits of judicialreview. Lord Devlin in his work Judges and Lawakars’ (1976) 39 H.L.R. 1 ct p.5calls that breach of limits as judicial demis and says it is antithetical to publicconfidence in the legal system. Some other lawyers have termed such breach ofjudicial limits as judicial Adventuris, while myself in the case of Air Hanza UmarYrs, 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 littleintervention must be fixed in principle.For example a clear policy aim of he government of Tanzania has been to havethe Labour disputes decided outside the judicial process. Yet the Tanzania Courtof appeal has authorized the courts to decide the labour disputes after declaringthe decision of the Minister void, and that reveals clearly that the courts are quiteinsensitive to the policy aim of the government and that say be interpreted as624

intended to furtmore national policy. Robert Martin in his work (supra) cautionsthat 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 thepolies of the government or the party then their usefulness and effectiveness inthe whole procese of government will decline. A more useful approach might befor 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 exercisionjudicial review. This is becameto, there is the wider question of the democraticacceptability of judicial review. The entitled legitimacy of judical review dependsin the ultimate of the geneal community in the way in wich the Court perform thefunction assigned to then under the doctrine of separation of Powers. Judicialreview has no support other than public confidence. Thus it behaves the Courtsto be over sensitive to the paramount read to refrain from trespassing upon theprovince of Parliament. There is need to act with great circumspection and withclose regard to the daners of usurping or encroaching on any function with thestatute has specifically conferred on Parliament or the Execut. As Mr. JusticeFrankfurter 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.Judicial power is not insure against this human weakness. Italso must be on guard against encroaching beyond its proper bounds, and notthe 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 pertinentquestion at p.330:“There remains the most touchy question of all. May not the judges themselvessometimes abuse or misuse their power? It is their duty to administer and applythe law of the land. If they should divert it or depart from it-an do so knowinglythey themselves would be guilty of a misuso of power. So we come up againstjuvenal’s question, but who is to guard the guards themselves? (sed quiscustodiet ipsos custodies?) You 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 theirpowers and also an equal sense of proportion of public confidence in thatwisdom. On the problem under discussion,. If for onc, was content with judicialcontrol of administrative decision by means of prerogative orders only rather thanby ordinary civil sue as expounded by Tanzania Court of Appeal. They have laiddown the law, and I am bound to follow it.Similarly in this case, the provisions of s. 40 (5) of the security of employment actno road thatthey encompass even employees who are innocent havingcommitted no effened at all. Such a provision is, to use the phrase used by theTanzania Court of Appear a rat – trap which catches both rats and husterdistinction. A provition of that nature attempts to protect society by endangering626

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 suchthat an employer is now obliged to reinstate this employee who is innocent andnot caught up by the provisions of s. 39 (2) and s. 40 (1) of the Act. As indicatedherein above the plaintiff in this case has satisfied the provisions of s. 39 (2) ands. 40 (1) of the security of employment Act and therefore he has to be reinstatedwith 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 andthat he was at all material times in the continued employment of the defendantcompany. That prayer is granted in view of my observation above. The secondissue that was framed at the commencement of the trial was as to whether theplaintiff is entitled to arreas of slary and other benefits from the date oftermination to the date of this judgment. In the main case (supra) Kisanga J. Heldthat the employee rendered no services to his employer. The decision of KisangaJ. 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 ofthe payment of wages and of entitlement to severanceallowance and other retiring benefits and otherwise in relation to any benefits ofemployment, from the date of termination .but the employer maydeduct from any wages due after reinstatement, the wages in respect of the627

number of days during which the employee remained absent from work duringtermination.Employee should be renurated for days he did not work, in this case being.of 4 yearsOut that does not mean the employee is not entitled to damages. It is my findingthat the employees is entitled to damages because he did not contribute to thecreation of the situation he found himself in. he was prevented from rodung hisact fees to the defendant by the wrongful acts of the deendant himself. In thatregard the plaintiff claims sh. 3,000,000/= as damages can loss of burnings andshs. 1,000,000/= as damages for loss of future expected earning is he is notreinstated. The claim of shs. 1,00,000/- is not now applicable because this courthas ordered his reinstatement and so he cannot be expect to have any loss ofany future burnings. Be regards the claim of damages of Shs. 3,00,000/- I think itis too much on the high side. After all he was expected to be barning a monthlysalary of shs. 1,775/= which norms in 41/2 years would not have exceeded shs150,000/- despite the annual incralents granted by the president to allemployees. The defendant company did not challenge the fact that the plaintiffwas entitled to the damages, apart from a nere denial of liability. My finding isthat the plaintiff is entitled to damages for the inconvenience caused to him. Myassessment is that the plaintiff should get shs. 50,000/- as damages which I findpersonable.628

In the event, the prayer for a declaration is granted and I order that the plaintiffshould proximately be reinstated in his employment. And I also enter judgmentfor the plaintiff in the sum of shs. 50,000/- plus costs of the suit and interest at therate 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. TANZANIAMANUFACTURES LTD(COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM’ (Mustafa,Mwakasendo, Kisanga, JJ.A)CIVIL APPEAL 15 OF 1981Land Law – Right of occupancy – Powers of the President to revoke-whether theCourt 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- RevocationMust be for good cause – Section 10(1) of the Land Ordinance.Land Law – Powers of the President undr s 10 of the Land Ordinance – WhetherExecutive 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 landdescribed variously as Plot No. 154 or Plot No. 94 which is situated at KipawaIndustrial Area within the city of Dar es Salaam. The respondents based theirclaim to the land on a certificate of Right of Occupancy issued to them either orIst April 1978 or 29 th May 1978 by the Directorate of Land Development Services.The offer of the right of occupancy to the land was communicated to them on 29 thMay 1978 and was accepted on the same day. The appellants claim that theysecured the offer of right of occupancy of 24 th January 1978 and accepted it on630

25 th January 1978. However on 5 th February 1979 there was a revocation of theriht of occupancy granted to the appellant was proper in law but went further todiscuss whether the court had power to impugn the validity of the order of thepresident to revoke a right of occupancy. The appellant was dissatisfied with thatdecision hence this appeal.Held: (i) though the President has power under s. 10(1) of the Land Ordinance torevoke any grant of right of occupancy for good cause he cannot do so unlessthe conditions prescribed by law for its exercise are fulfilled;(iii)the decision made by the President revoking the right of occupancy inthis case is bad in law because it was made for no good cause andtherefore 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 REPORTSCross 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 ofthe court: The dispute from which this appeal arises relates to a right ofoccupancy 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 thespondent company, have conceded that Plot no. 154 and Plot No. 94 are oneand the same plot of land we propose throughout this judgment to refer to thedisputed plot as plot No. 94 or simply as “the land”.At the trial both Tanzania Manufactures Limited (the respondents) and PatmanGarments Industries Limited (the appellants) claimed to the lawful occupiers ofthe land. The Tanzania Manufactures Limited based their claim to the land on acertificate of right of occupancy No. 22378- Exhibit P1 which is now mysteriously632

missing from the trial court record-issed to them by the Directorate of LandDevelopment Services ither on 1 st April, 1978 (vide paragraph 3 of the Plaint) or29 th May, 1978 (see Exhibits D 10 and P3). The offer of the right of occupancy tothe land was communicated to the Tanzania Manufacturers Limited on 29 th May,1978 and accepted the same day. Remarkably, the processing of the certificate otitle started on the same day; we obtain this useful information from Exhibit P3which is a letter from the District Land Officer, Ilala, addressed to PatmanGarments Industries Limited on 12 th August, 1978. The letter reads:-I am sorry to inform you that the above mentioned plot has already been giventhe one Shamshudin Papat Hirji since 29 thMay, 1978 by our offer No.ILA/2586/HHK of 29 th 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 Limitedfor a right of occupancy appears to have been handled by the Directorate of LandDevelopment Services is without doubt spectacular and a marked contrast totheir earlier dilatory dealings with Partman Garments Industries in respect of thesame plot. We now turn to consider the story told by Patman garments IndustriesLimited.Pratap K. Pattani (D.W.I), the Managing Director of Patman Garments IndustriesLimited, gave evidence in court in support of his company’s right to theoccupation and use of the land and produced documents to substantiate hiscompany’s claims to the land. Exhibit D2, a letter addressed to Patman633

Garments Industries Limited by the Director of Land Development Services fullybears him out. In the letter which is dated 23 rd January, 1978, the Director ofLand Development Services told Patman Garment Industries Limited:Your application for a long term right of occupancy (later in this letter called “theright”) over this plot has been approved. On receipt of the fees and informationrequested below I will send a certificate for you to sign,,,,On 24 th January, 1978 Patman Garments Industries Limited received the Offer ofRight of Occupancy from the Director of Land Development Services. The offerwas in respect of-All that piece of parcel of land containing 4,200 square metres known asPatman’s Garments Industries Limited at Kipawa Industrial Area Dar es salaamCity which for the purpose of identification only is shown red on the plan annexedhereto.The offer then reiterated what the Director of Land Development Services hadalready told Patman Garments Industries Limited in the land known as “Patman’sGarments Industries Limited” had been approved:-You application for his land (hereafter called “the land”) has been approved and Iam directed to offer you a right of occupancy (hereafter called the right”) over iton the conditions set out below.634

One of the conditions set out in the offer related to the circumstances underwhich the right of occupancy could be revoked by the President. Thesecircumstances are described in paragraph 9 of the Offer, which reads:The President may revoke the right for good cause or in the public interest orassign failure by the occupier to comply with the conditions expressly or impliedlycontained in the right.The Offer of the Right of Occupancy communicated to Patman Garments.Industries Limited on 24 th January., 1978 was accepted by them on 25 th January,1978. On the 5 th February, 1979 there was a revocation of the Right ofOccupancy over LD. No. 46100 Granted to Patman Garments Industries Limited.At the trial of the suit a lot of allegations were exchanged between the partiesinvolving the conduct of the parties themselves and, by and large, the variousofficials of the Directorate of Land Development Services who were concernedwith the double allocation of Plot No. 94. Some of these allegations have beenrepeated before this court. However, as there allegations and counter allegationswere considered and disposed of by the learned trial judge in his judgement, wethink 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 readilyconceded, is a very brief one whether the revocation of the right of occupancyheld by Patman Garments Industries Limited in respect of the disputed parcel ofland was lawful.635

The learned trial judge in his judgment, after discussing at some length therespective claims of the parties to the land, held that the right of occupancygranted to Patman Garments Industries Limited over the land, was perfectlyproper in law. He saidIn my judgment, I find that the right of occupancy which was granted to thedefendant was perfectly good and that there was nothing irregular in the manneritr was granted to him. I find that the right of occupancy which was granted to theplantiff on 29 th May, 1978 was, at least up to the day the revocation order wasmade 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 bepresently determined. And that leads me directly to the question whether therevocation order is sustainable.The learned trial judge then went on to discuss whether the President’s exerciseof the power of revocation of the right of occupancy in this case fell under theprovisions of subsection (1) or subsection (2) of s.10 of the Land Ordinance, andthe concluding, for reasons which are not apparent on the judgement, that thePresident must have revoked the right of occupancy held by Patman GarmentsIndustries Limited by invoking the provisions of subsection (2) ie., in the publicinterest, proceeded to discuss the issue whether the courtcould impugn thevalidity of the decision by the President. In the end the learned trial judge was notsatisfied that the President had acted either improperly or mistakenly on thematter and accordingly held.-636

(a) that up to the 5 th February, 1979 the day the revocation order was madeand the plaint filed, the defendant was at law the holder of the right ofoccupancy over the suit plot (b) that the revocation order had a doubleeffect – it rendered the defendant’s right of occupancy void and theplaintiffs title good; and (c) that from that day, but for the interim order ofthis court, the plaintiff was entitled to have peaceful possession and to bein lawful occupation of the plot.The question that arises for determination is whether the learned trial judge isright in this conclusion. To deal with the matter we will start with a briefexamination of the law. Section 10 of the Land Ordinance sets out the conditionswhich must first be fulfilled before the President may lawfully revoke a right ofoccupancy to land. Section 10 provides, inter alia:10-(1) it shall not be lawful for the President to revoke a right of occupancygranted 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 ofoccupancy 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 ofor other dealings with rights of occupancy or interest therein.637

10 – (2) Notwithstanding the provisions of subsection (1) the President mayrevoke 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 shalltake effect and be valid notwithstanding any provision to the contrary containedin any other written law or any order made or issued by any court prohibiting theoccupier from transferring or otherwise disposing of his interest in the land or ofany unexhausted improvement existing on the land.The learned trial judge in the court of considering the powers of the Presidentunder the provisions of subsections (1) and (2) of s. 10 discussed the questionwhether the President’s functions under the two subsections were quasi-judicialor 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 tome, the exercise of his discretion under that provisions must be conditioned byfinding of facts such as are set out there under. It basically entails the finding thatthe holder of the right of occupancy has committed some wrong in respect of histitle. In my opinion I would say that he is under no duty to act judicially. He couldthroughout consider the matter from policy standpoint. I am prepared to acceptthat the revocation order in this case was made under subsection (2). I hold thatit was a purely executive action.638

With regard to this passage of the High Court judgment, we wish to make onlytwo brief comments. Our first observation is with reference to the trial judge’sattempt to distinguish the President’s functions under subsection (1) and (2) ofs.10 on the basis of whether his functions were judicial, quasi-judicial orexecutive. We think in determing whether the position of the President in thecontext o s. 10 of the Land Ordinance is judicial, quasi –judicial or purelyexecutive, it is necessary to appreciate that the test in the matter is whether thereis a”lis”, i.e ., a contest, as it were, between two sides, as between whom thepresident has to come to a determination after consideration of all the factsplaced before him. In the present case we can see nothing in the wording of s.10which imposes on the President any duty to act judicially or quasi-judicially. As inour opinion the functions of the President under s. 10 of the Land Ordinancecannot, even remotely, properly be categorized as being judicial or quasi-judicialproceedings, we think the learned trial judge erred in thinking that the functions ofthe President under subsection (1) of s. 10 were in the nature of a quasi-judicialproceeding. 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 ofpublic officials.A number of eminent judges have held that such a distinction is not longer validand should be abandoned. See Re. H. K. (1967) 2 Q.B 617: Padfield v Ministerof Agriculture. Fisheries and Food. (1968) 2 Ch. 149: R.v garming Board. Exparte. Benaim. (1970) 2 Q.B. 417639

Our second observation on the above passage is as regards the issue whetherthe decision of the President in this case fell within the ambit of subsection (2) ofs.10. With respect to the learned trial judge, we are unable to find any scintilla ofevidence on record on the basis of which he could have held that the decision ofthe President in the case was made under the power conferred on him bysubsection (2) of s. 10. His holding on the matter becomes even more difficult tounderstand in view of the reasons stated in Exhibit P2.We have now to determine if the decision of the President on this matter can besustained under subsection (1) of s.10 of the Land Ordinance. The determinationof this crucial point really depends on the true construction of subsection (1). Aswe have already observed in this judgment, the power of the President to revokerights of occupancy granted under the Land Ordinance is predicated upon certainconditions being fulfilled or certain evens taking place. Subsection (1) providesthat breach of any one or more of the terms and conditions expressed or impliedin grant of a right of occupancy may constitute good cause for revoking the grant.The subsection further provides that good cause shall include, among othermaters, non-payment of rates and taxes and the abandonment or non-use of theland 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 P2constituted good cause for revoking the grant of a right of occupancy held byPatman Garments Industries Limited. We are of the view that Exhibit P2 is clearlyagainst him.640

Patman Garments Industries Limited have challenged this revocation and havecome before this court seeking a remedy. But can this court interfere with thePresident’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 Smithsays at pp.61-62 of his book (Judicial Review of Administrative Action) that: “Thevalidity of the exercise of Ministerial or Administrative powers affecting the legalinterests of an individual is always open to challenge in the courts (no matter thestatus of the person who exercises those powers) unless the review has beenexcluded, directly or indirectly, by the relvant legislation. If the exercise of thepowers is predicted on findings of law or facts, the correctness of those findingsmay be impugned directly or in any appropriate form of collateral proceedingse.g., by resisting an action for a declaration that the order is nuil and void, and bysuing the actor for a civil wrong.Now there is nothing in that subsection to show that judicial review has beenexcluded and I think therefore, that the court can properly review an order madeunder that provisions and where it is established that the order made was madeimproperly or mistakenly the court can declare it null and void.With respect, we think the learned trial judge is correct in saying that courts havepower, which they have always had, to review administrative action which ischallenged before them. While his discussion on the power of the courts toreview administrative action was made with reference to executive functions of641

the President under subsection (2) of s. 10 of the Land Ordinance, we are of thefirm view that his reasoning on the matter equally applies to a decision madeunder the provisions of subsection (1) of the section.Support for the principle of law stated by the learned author S.A. de Smith, whichhas been set out supra, is to be found repeated in all the important cases on thussubject reported in Law Reports. Suffice here, to refer to only one Englishdecision which dealt with a matter which is analogous to the case with which weare now concerned. The case is Congreve v Home Office. (1976) Q.B 629. Thatwas a case in which the British Home Secretary claimed to revoke the atelevision licence- an overlapping licence- for which Mr. Congreve, a solicitor in acity firm, had paid a license fee of pound 12 in advance. He claimed to revokethe lincence by a section in an Act of Parliament which gave him a power torevoke it is certain circumstances. The judge at first instance held that the HomeSecretary could do it but the Court of Appeal held that he could not. In the Courtof Appeal LORD DENNING, M.R., deal with the Home Secretary’s contention asfollows:-But now the question comes: can the Minister revoke the overlapping licensewhich issued lawfully? He claims that he can revoke it by virtue of the discretiongiven him by s 1(4) of the Act. But I think not. The licensee has paid pound 12 forthe 12 months. If the licence is to be revoked and his money forteited – theMinister would have to give good reasons to justify. Of course, if the licensee haddone anything wrong-if he had given a cheque for pound 12 which was642

dishonoured, or if he had broken the conditions of the licence-the Minister couldrevoke it. But when the licensee has done nothing wrong at all, I do not think theMinister can lawfully revoke the licence, at any rate, not without offering him hismoney back, and not even then except for good cause. If he should revoke itwithout giving reasons, or for no good reasons, the courts can set aside hisrevocation and restore the licence. It would be a misuse of the power conferredon him by Parliament: and these courts have the authority – and, I would add, theduty- 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 ofwhat I say. It show that are bad in law- the courts can interfere so as to get himback on the right road.With respect we adopt Lord DENNING’s reasoning in the above passage. Wecan find nothing in reason or common sense to indicate that the principle statedby Lord DENNING is inapplicable to a case involving a revocation of grant of aright of occupancy.Now then, applying the accepted principle to the fact of the present case theposition appears to be: while the President has power under subsection (1) ofs.10 of the Land Ordinance to revoke any grant of a right of occupancy for goodcause, he cannot do so unless the conditions prescribed by law for its exerciseare fulfilled. The Act states in no unambiguous terms that: it shall not be lawful forthe President to revoke a right of occupancy granted as aforesaid save for goodcouse”. We have, we think, already abundantly demonstrated why the decision643

made by the President revoking the grant of a right of occupancy held by theappellants, is bad in law. It is unalwaful because it was made for no good causeand was therefore, an unlawful exercise ofpower conferred by subsection (1) ofs. 10. We are, of course, full aware of the frantic efforts made by some officers ofthe Directorate of Land Development Services to solve the problem created bythem through double allocation of Plot No. 94. Be that as it may, we do not thinkthe power of revocation conferred under subsection (1) of s. 10 of the LandOrdinance was meant for the convenience of any of the officers in the Directorateof Land Development Services.Mr. Lakha has submitted that the only way to impugn the revocation order was byway certiorari and that the Attorney General must be included if such an orderwas challenged. In our view, both at the trial and at this appeal the central issuewas whether the revocation order was lawful or otherwise. Mr Lakha had bothhere and below vigorously argued as to its validity. If Mr. Lakha and/or LandOfficers had wanted the Attorney-General to support the order, they could easilyhave done so. The appellants were confronted with the revocation order whenthe respondents filed their reply and the appellants book the point that the orderwas unlawful. An application by way of certiorari is one of the means not the solemeans, of challenging such an order and we are satisfied that in thecircumstances of this case, the appellants were entitled to challenge therevocation order in the way it was done.644

Decree of the High Court and declare that the decision made by the Presidentrevoking the appellant Company’s grant of a right of occupancy over Plot No. 94Kipawa Industrial Area, Dar es Salaam, was unlawful and, therefore, null, andvoid. We declare Patman Garments Industries Limited are the rightful owners ofthe right of occupancy over Plot No. 94 L.O No. 46100.645

IN THE HIGH COURT OF TANZANIAAT DAR ES SALAAMMISC CIVIL CAUSE NO.42 OF 1984In the matter of application by Simeon Manyaki for leave to apply for anOrder of certiorari and mandamus’AndIn the matter of the Executive Committee and Council of the Institute ofFinance ManagementRULINGMAPIGANO. J.The applicant Simon Maanyaki is a senior accountant with the National ShippingAgencies. He wants this court to exercise its discretion and grant two orders,namely (1) an order to certiorari to quash the decision of the ExecutiveCommittee of the Council of the Institute of Finance Management dated 2 may1984; and (2) an order of mandamus requiring the Council of that Institute toaward him a certificate of Advance Diploma in Accountancy. The application hasbeen stoutly contested by the Institute.Most of the salient facts are not in dispute. The applicant was a student at theInstitute in Dar es Salaam, pursuing a course of study in accoundancy conducted646

y the Institute during the 1983/84 academic year. He and other students sat forfinal examinations in January, 1984. sadly an outrage had taken place inconnection with the examination papers and model answers and theexaminations had been extensively leaked. A good number of the candidateshad obtained unauthorized prior access to the examination papers and modelanswers. The examiners were not slow to apprehend that there had been such aleak. It was perhaps inevitable, for some of the candidates were so naïve, naythoughtless, that they reproduced the model answers verbatim. It was consideredto be a case where the examination as a whole could not properly be said to be areliable measurement tool of acknowledge and expertise of candidates. Adecision was thus made to (1) nullify the results and require the candidate to retakethe examinations in april, 1984; (2) set up committee to probe the theleakage and prepare a report; and (3) seek assistance of the state securityorgans to investigate the matter. It was also decided that the results of the Aprilexaminations should be tied to and tabled together with the report of the probecommittee and to postpone any disciplinary or punitive action against anyindividual who may have been involved in the affair, including the nullification ofthe Aril examination results, until the final results of the investigations have beensubmitted.The applicant and the other candidates resat the examinations in early Aprilwhen the probe committee that was formed was carrying out investigations. On27 April, 1984 the applicant was officially informed that he had passed the647

examinations. Howver, on 2 May 1984 he received a distressing letter from theActing Director of the Institute which read as follows:“THE TERMINATION OF ADVANCED DIPLOMA STUDIES.1. You may remember that the Institute in January, 1984 encounteredproblems in the final examination process of the 1983/84 AdvancedDiploma in Accounting third year students of the fact that a good numbr ofthe students in that class had unauthorized access to some of the exampapers and or model answers. Subsequent to this the Institute set up anindependent probe committee to investigate this whole affairs.2. The Executive Committee of the IFM Council which set up thisinvestigation received and deliberated the probe committee report in itsfortieth (extra-ordinary) meeting held on Friday, 1984. According to thefindings and conclusions of this report you are one of the students who arehighly implicated.3. the Committee noted with grave concern that you are depicted as one ofthe primary clique member in your class who participated and/ or assistedcontrary to Institute’s rules o examination and good discipline in thecommercialized distribution and propagation of the examination papersand/or model answers which leaked. The Committee observed furtherthat, as if that was not enough, you subsequently did not want to tell thetruth to the investigators’ during the investigation which ensured; you werenonrepentant: your were intransigent if not arrogant and you were648

obdurate if not- thoroughly uncooperative in this investigation. It was notedalso that the wide propagation of the leaked exams caused a lot ofproblems to the community and entailed enormous financial costs to theInstitute. All these behavioral patterns, it was observed by the Committee,are not consistent with good discipline and are contrary to professionalethics and integrity in your field of training.4. because of the above reasons the Executive Committee of the Institute’sCouncil has decided to terminate your studies at the Institute withimmediate effect and also to bar you from attempting any IFMexaminations in future as well as nullify whatever results you may havehad in this year’s April 2-6 examinations, if you happened to sit for theseexaminations etc”.At this juncture I pause to notice, only to reject, an argument that was advancedby the applicant to the effect that the Institute had no legal competence toterminate his studies, nullify his results of the April examinations and bar himfrom future enrollment and attempting any of its examinations. For one thing,examinations such as these, are meant to be honestly and honorably set andtaken for they are contemplated to be, as the Institute observed, a reliablemeasurement tool of knowledge and skill of the candidates. For another, itcannot be denied that the Institute stood embarrassed and disgraced by the leakand its integrity stood tainted. The leak thus bore viewing the seriousness andthose who were involved in it should surely expect to severely dealt with and649

visited with deterrent or exemplary penalties. I entirely aree with the Institute thatunder both the IFM Act, 1972, in particular section 7 thereof, and the generalrules governing such examinations, it has the discretion to treat the applicant inthe manner it did.The probe committee that was formed by the Executive Committee of the Councilof the Institute was given the following terms of reference: (1) to find out whetherthere 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 / ormodel answers leaked and to what extent, (3) to find out weaknesses, if any, inthe examination administration system that might have contributed to theleakage, in particular, to examine the circumstances of setting, marking, externalexamining and invigilation of examinations; (4) to make observations on theabove points and any others that might be pertinent thereto, draw conclusionsthereof and recommend appropriate action to be taken; (5) to determine andregulate its proceedings as it deems fit and to co-opt any other person or personswho in its opinion may facilitate the execution of its tasks.In discharging its assignment the probe committee examined a host ofdocuments and conducted interviews with 24 people, who included students,examiners and officials of the Institute and NBAA , the acronym for NationalBoard of Accountants and Auditors. It was standard procedure to sent the650

examination papers to NBAA for moderation. The applicant was one of thestudents who was interviewed by the probe committee.At the conclusion of the investigations the probe committee stated, in sum , that itprofoundly suspected one Chandrasekharan, a moderator with NBAA, and oneMashenene, a co-ordinator with the Institute, to be the source of the leak. Itopined that either of the two had surreptitiously given one Angela Mpanduji (whowas a candidate the examination papers and that the said Angela had in turn, inthe words of the committee, constituted themselves as distribution agents andmade them available to other candidates in consideration of cash or kind.The first main question that arises is whether the Counci had authority toestablish the Executive Committee that set up the probe committee, and if theanswer be yes, whether the Executive Committee had competence to exercisesuch powers. By paragraph 10 of his affidavit the applicant contends that the IFMAct, 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 ofthe applicant has submitted that the only body that could have acted against theapplicant was the Student’s Disciplinary Committee established under rule 37 ofthe IFM Student Rules set out in the IFM 1983/84 Prospectus. Against thatsubmission Miss Mjasiri of the Tanzania Legal corporation, counsel for therespondent Institute, replied that the Executive Committee had a legal status andthat under the IFM Act the Council enjoyed discretion to establish such a651

committee. With regard to the IFM Student Rules, it was her argument that thoserules did not apply to academic matters.As indicated, the Institute was established by an Act of Parliament ie. Act No.3 of1972. The objects and functions are to be found in section $. By section 6(1) theCouncil is the body vested with the governance and control on the part of theadministrative body and the right to a fair hearing for those who are immediatelyaffected by its decision. And it is common ground that this court has discretion tointervene and award appropriate reliefs where the rules of natural justice havenot been observed.Quite clearly, and again it is common ground, the probe committee wasinvestigating an enormous matter and the authorities must have apprehendedthat the effect of its finding was bound to have substantial adverse impact andconsequences on the interests of certain individuals. The applicant is certainlyone of the people who have been detrimentally affected by the findings of theprobe committee. That is patently evident from the severity of the penalties thatwere eventually handed out to him by the Executive Committee and by hisemployer. I hold the view that the applicant, whose rights and legitimateexpectations stood to be so adversely affected by the inquiry had the right tohave an adequate opportunity of knowing the case he had to meet, of answeringit, of putting forward his own case, and of being fairly and impartially treated. Inother words, he had the right, first, of being sufficiently appraised of theparticulars of the prejudicial allegations that were to be made or had been made652

against him, so that he could effectively prepare his answer and collect evidencenecessary to rebut the case against him; secondly, subject to the need forwithholding details in order to protect other overriding interests, and in my opinionthere was none here, of being accorded sufficient opportunity of controvert orcommenting on the materials that had been tendered or were to be tenderedagainst him; thirdly, of presenting his own case, and fourthly, of being given areasonable and fair deal.It matters for nothing that these were proceedings initiated by an Institute ofhigher learning. The weight of modern authorities is in favour of the view thatdisciplinary proceedings in higher educational institutions have to be conductedin conformity with natural justice, provided at least the penalty imposed or likelyto be imposed is severe: see R. v. Aston University Senate, Ex parte. Roffey andAnother, (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 suspensionfrom residence on the campus for disciplinary offence; and more helpful, CeylonUniversity v. Fernando (1960) 1 WLR 223, a case of disqualification from degreefor alleged cheating in examination.With due respect, it is, in my considered opinion, not an exaggeration to say thatthe applicant was deprived of his right. It cannot be seriously denied that there isnothing in the record that shows that he was appraised of the particulars of theallegations that were to be made or had been made against of the Institute. Now653

the Executive committee was created by the Council in its meeting held on 24September 1974. It is a smaller body than the full Council, it being composed ofonly half of the members of the Council.Among other things, the Executive Committee was charged with the functions ofdealing in emergency cases, with such matters as are normally considered bythe Council, in between council meetings. It was expressly stipulated that thedecisions 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 Councilpower to establish such a Committee and to invest it with such authority. I takethe view that this was not an instance of abdication of power by the Council, buta valid exercise of its statutory discretion. As aforestated, the Council prescribedthat all decisions of that Committtee would be subject to ratification by the fullCouncil. Essentially, by that proviso the Council retained complete control overall the functions assigned to the Committee and the Council intended to continueto address its own mind to the exercise of the powers delegated to theCommittee.I also take the view that the Executive Committee did not encroach on or usurythe powers of the Students Disciplinary Committee. It is not true that theStudents’ Disciplinary Committee has any powe to deal with academic maters. Ihave perused the IFM student rules and I have come to the conclusion that such654

maters as the leakage of examinations fall outside the purview of those rules. Iam satisfied that the jurisdiction of the Students Disciplinary Committee isconfined to what may be described as domestic matters such as those pertainingto accommodation, kitchen, drunkness, nuisance and the misuse of musicinstruments.I pass o the second main question, which is whether the proceedings of theprobe 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 wasdenied natural justice in that (a) he was not informed, throughout, that he was asubject of suspicion or investigation; and (b) that he was not afforded opportunityof being heard. This has been denied by the Institute.The parties seem to be acutely aware, and it is trite to remark, that anadministrative body exercising functions that impinge directly on legallyrecognized interests owes it as duty to act judicially in accordance with the rulesof natural justice, which basically means the adoption of fair procedure, whichfundamentally demands freedom from interest and bias him. It will beremembered that the probe committee carried out is assignment by ascrutinizingseveral documents and interviewing scores of people. I have gone through thosedocuments and in regard to the applicant. I see nothing damning in them. Therecord of the proceedings of the committee shows that it is met on several655

occasions to conduct the interviews. About the only interviewee complicated theapplicant was one ancilla kilinda.This Ancilla Kilinda was also a candidate and as the idiom goes, the canry whosang. She admitted that she had prior access to the examination papers. Shestated that she had purchased the papers from Angela Mpanduji for shs.1,500She disclosed that the papers se acquired were handwritten. She was hadto examine several sripts and according to the report of the probe committee, shesingled out the sripts of the applicant claiming that they were similar with theshandwriting on the examination papers she had purchard from AngelaMpanduji. That was a serious allegation and it was regarded by the probe commitas high grade information and in no small way led the committee to infer h=that aapplicant was party to the scandle. The committee might be righ. But what isobjectionables that the substance of that adverse information was not put to theapplicant all. He had therefore, no opportunity to deny or admitted ofcourse aparty 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 notin the least implicate any body, let alone the applicant. The information providedby one or two other candidates was in the last analysis either marginal or whatthey 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 setout in extensor what transpired:656

Q. Can you tell us anything strange or unusual you hear about the exam beforethe exam was done?A. The students worked very had to prepare themselves for the exams. But Iheard no rumous.Q. Do you have a study group?A. YesQ. 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 topicQ. 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 effortQ. Did you know that Angela was selling exams or she had exams?A. NoQ . One day you were studying in your room with some colleagues someonecame and knocked at the door. Your tocked him . You were digesting an examyou had laid hand on.A. Thi is 100% lie.Q. When Angela got the papers she was looking for someone to assist her withsolutions. 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 withQ But she is surely more than that o youA yes, at one stage she introduced me to her father and I once escorted her tothe airport when her sister was passing through from Seychelles.This interchange is drawn from pages 54 and 55 of the report of the probecommittee. On a careful reading one may probably discern someinconsistencies, even evasiveness, in the answers of the applicant. But aspointed out supra, there is from start to end nothing in that inter which shows thatthe identification of the scripts by Ancilla kilinda intimated, much less announcedto the applicant.Whats more, its is plain, I think, there is nothing to show that the app. Wasinformed that he was one of the distribution agents of the examinations, contraryto what is deposed in paragraph 7 of the affidavit equally plaint in that there isnothing that shows that the appl.658

IN THE HIGH COURT OF TANZANIA\MAIN REGISTRY AT DAR ES SALAAMMISCELLANEOUS CIVIL CAUSE NO.5 OF 1995VIDYADNAR GIRDHARAL CHAVDA .APPLICANTAND1. THE DIRECTOR OF IMMIGRATION SERVICES2. HON. MINISTER FOR HOME AFAIRS RESPONDENTS3. THE ATTORNEY GENERALRULINGIn 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 madeagainst him by the second respondent, who is Minister for Home Afairs, underthe Immigration Act. On February 2, 1995, he filed before this Court anapplication against the Director of Immigration Services (the first respondent).The second respondent and the Attorney general, who was made a party to theproceedings in compliance with S. 17 of the Law Reform (Fatal Accidents andMiscellaneous Provisions) Ordinance Act, 1968, as amended by the Written laws(Miscellaneous Amendments) (No.3) Act 1995, for two reliefs, namely; (1) leaveto apply or order of certiorari, mandamus and prohibition, and (2)659

..(in the chamber summons the word used is prohibition)restraining the first two respondents, pending the .applicationfrom detaining or deporting .not be given here theapplication for ..before the application for leave was heard to . Malledby senior State Attorney, appearing for all the those respondents, stronglyopposed the application for injunction) outstanding that this court, before grantingleave to apply for certiorari, mandamus or prohibition, has no power to grant oninterim or larger I rejected the argument and made an order restraining the firstand second respondents, pending the hearing of the application for injurativerelief, from detaining or deporting the applicant. The tourt..proceedings” is defined in S. 2(1) of the .as includingproceedings in this court or a magistrate’s cosuse for the recovery of fines orpenalties, and the phrase proceedings against the government” is defined by thesame subsection as including a claim by way of set off or counterclaim raised inproceedings by the government. Mr. Mkono, for the applicant, sought to counterMr. Mallaba’s argument by contending that section 11 of the Act has noapplication where s. 30 of the constitution of the United Republic (constitution) isapplicable. It was the learned advocate’s contention that the constitutionalprovision is applicable to the instant application. He dre my attention, citing M.VHome Office (1993) 3 W.L.R. 433, to the fact that in spite of the fact that s.21 ofthe Crown Proceedings Act, 1947, contains prohibitions identical with theseimposed by s. 11 of the Act, the house of Lods decided, in the cited case, thatcourts 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 parimaterial S. 30 of the Constitution deals with limitations upon and the enforcementand protection of basic rights and duties.It cannot be doubted that Mr. Mallaba’s preliminary point reaises an issue ofconsiderable importance on enforcement by this court of the provisions of theLaw reform (Fatal Accdients and Miscellaneous Provisions) Ordinance(Amendment) Act, 1968, the legislation which confers on this Court the power togrant prerogative orders. While I find Mr. Mkon’s argument concerning s. 30 ofthe Constitution very interesting, I do not find it necessary, in law, to determineMr. Hallabas’s preliminary point on constitutional grounds. I thin the point can beadequately dealt with on non-constitutional grounds. It is a rule of constitutionalinterpretation that if the court can decide a case before it on non-constitutionalgrounds, that course should be preferred; see The Guide to American Law, page375. I proceed, therefore, to consider the merits or otherwise of the nonconstitutionalcontentions addressed to me did. Proceedings were then broughon behalf of a against the home office and the Home Secretary alleging contemptof court in respect of the breach of the undertaking and the ex-parte orderrequiring M’s return. Simon Brown J. dismissed this motion on the basis thatsince the Crown’s from injunction was preserved by s. 21 of the Crownproceedings Act, 1947, neither it nor its departments, ministers and officials661

acting in the course as their duties could be impleaded for contempt of court. Theapplicant a ppealed”.The Court of Appeal, by a majority, allowed the appeal; holding that Brown J. hadmistakenly interpreted the law. The original order by Garland J. should not havebeen made as injunctions would not be issued against the Crown. The Courtwent on to hold, however, that as the order was binding until set aside, failure tocomply with it constituted a contempt. It also held that while the Crown andGovernments Departments are not subject to the contempt jurisdiction of theHigh Court because they are non-persons, Mr. Baker, the Home Secretary, waspersonally guilty of contempt. The house of Lords had to decide two issues ofconstitutional import, namely:-1. could an injunction be issued against a government minister, and2. could a government minister or department be found to be in contempt ofcourt for failure to comply with an of court?The house answered both issues in the affinitive. Their Lordship founded theirdecision on two ground; firstly, on the wording of s. 31 of the Supreme court Act,1981, which essentially, contains provisions regarding (i) the procedure forapplying for prerogative orders of mandamus, prohibition and certiorari, (ii) thepowers of the High Court applications and (iii) non-prerogative reliefswhich may be so granted in an application for prerogative order(3) on the undesirability of the English law byto wide as toembro proceedings in which as in the instant application, a temporary662

injunctive relief is sought? Although in the actual there is an provision..to s. 31 of the supreme court, Act (of England). I am of thesettled opinion, bearing in mind the definition of term civid proceedings” ins. 2(2) of the Act, and talaing into accent of the definition of the phrase ‘proceeding against the government given in the same susbsection, thatthe word “civil there has not been used to mean the opposite of criminal.Thus, constitutional proceedings and proceedings which are institutedunder this court’s supervisory jurisdiction that is to say, the jurisdiction tosupervise 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 andMiscellaneous Provisions Ordinance (amendment) Act, 1968, most beheld to be excluded by the term. The term was intended to have arestricted meaning, it was intended to mean civil matters as understood inthe traditional sense of the term, that is to say, civil matters that are dealtwith under this Court’s general civil jurisdicition. Any statutory provisionwhich purports to restrict this courts jurisdiction, including interestjurisdiction, must, in the interests of everyone living with the territorialboundaries of the united Republic, be construed strictly. The application ofthat principle in the interpretation of s. 11 of the Act compels me to hold,asI have already indicated, that the term “Civil proceedings” in thesubsection does not embrace prerogative proceedings. In my opnion, co11 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 isanother ground which compels the rejection of that argument,. The relief referredto in subsection 11(1) of the Act must. In or considered view, be a relief otherthan an injunction and specific performance. I have not the fairltest doubt that toconstrue the subsection otherwise would make the words “by way of thereinsuperfluous. It is a settled anon of statutory interpretation that a statute should beas constgrued that, if it can be prevented, no clause, phrase sentence or wordshall be superflueous, void or insignificant. See R. v Bishop of ch(1879)4 C Q BD 245 at p. 261. Unios the necessaty or entractabitlity of language in alegislation dictates, otherwise it is the duty of a court to all words contained in thelegislation. I saw characteristics subsection 11(1). In opinion , the words by wasof are not, a d. were not intended to be, insignificant in the provision. Thosewords were intended to, and de, contraed the meaning to be attached to theword. If the word (relief) were construed to include injunction the subsectionwould and very addly, indeed. How can one, I ask, speak of a relief of injunctionbeing granted by way of injunction? Neither to a lawyer not to an espert inEnglish language would that statement make any sense. I refuse to reduce thesubsection to the rank of absurdity. In my judgment, the prohibition imposed bythe subsection was not intended to and does not, extend to an application, likethe instant one in which the relief sought is injunction itself. I would be skippingthe words “by way of” in the subsection, as the learned senior state attorney664

appears to have done, to hold that the word “relief” there includes injunction. Ican see no warrant for doing so. On the contrary. I am profoundly convinced thatboth the law and common sense force one to the view that the use of thosewords was, as I have already, I hope, sufficiently demonstrated, intended to limitthe scope of the meaning of the word “relief” in the subsection it is my duty toattach 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 wereright, personally freedoms and rights would have been placed in great jeopardyas there would be inadequate judicial protection against unlawful conduct on thepart of those who are entrusted with the power of governing this country ordeterming, 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 ofpuboic would be tempted to regard the law as being a series of hazardsseparating the litigant from justice. The courts must do everything possible underthe law to prevent that wrong impression of the law being formed. The law shouldbe there to promote and nect impeda justice. In this country, a decision or orderof a government minister or official, regardless of his or her rank, cannotoutweigh the law. To borrow the language of Lord Woolf in his speech in H’SCase supra (at p. 445 II):Cream stances can occur where it is the interest both of a person the is subjectto the powers of government and of the government itself that the courts should665

e in a position to make an order which clearly sets either what should or whatshould 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 theacceptance of Mr. Mallaba’s argument. If the law were as contended by thelearned Senior State Attorney, justice would have been wearing a bandage overher as she could not bear to see some of the decisions made in her name in thatbranch of the law. I can find no reason for believing that Parliament could haveintended to create such a situation.Before parting with this application, I should, I think, say a word or two on oneimportant point. Since overruling Mr. Mallaba’s objection to this Court granting aninjunction pending the bearing of the application for leave to apply for certiorari,mandamus and prohibition on the ground that the court lacked jurisdiction todose 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 inEngland has the power to grant an interlocutory injunction pending the hearing ofan 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 inorder in granting the injunction. The injunction was granted before he had given666

the applicant leave to apply review. However, in a case of real urgency, whichthis was, the fact that leave had not been granted is a mere technicality. It wouldbe undesirable if, in the situation with which carland, J faced he had beencompelled to grant leave because be regarded the case as in appropriate on foran interim interpretation. In the case of civil proceedings, there is recognition ofthe 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 shouldbe 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 CourtPractice I 1993 where it is stated that:“Where the case is so urgent as to justify it,(the judge) could grant an interlocutoryinjunction or other interiom relief pending thehearing of the application for leave to move for judicialreview.But if the judgehas confused leave to move for judicial review he isfunctusofficial and has no jurisdictionto grant from of interim relief. Theapplication for an interlocutory injunction orother interim relief –could, however, be renewedbefore the Court of Appeal along with the removal ofthe 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 fordoubt that this court has the power to grant an interlocutory injunction beforehearing an application for leave to apply for a prerogative order.For the reasons I have given, I am satisfied that the law, justice and commonsense dictate that I uphold Mr. Mkono’s contention that s. 11 of the GovernmentProceedings 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 anindividual who complain of unwarranted or oppressive use of statutory powers bya government minister or official. It should be made perfectly clear, I think thatthis court can halt the bulldozer of the State before it quashes the right of anindividual, company or society.The preliminary point fails.B. A. SAMATTAJAJI KIONGOZIDelivered this 7th day of March, 1995, in the presence of Mr, Mkono, Counsel forthe applicant, and Mr. Salula, Counsel for the respondents.668

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