By Evarist Baimu Nyaga Mawalla - Home

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