By Evarist Baimu Nyaga Mawalla - Home

“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