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“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
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A COMPILATION OF CASES OF JUDICIAL
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4.3 Assistant Imports controller v
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appropriate respondent, i.e, if in
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the individual complaining of breac
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of the Constitution that there shou
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y one judge of the High Court. Desp
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Question(1) Their Lordship can deal
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ights and freedoms to satisfy the r
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The contravention was in the past;
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is entitled. The respondent must pa
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independence, as the result of nego
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emedy, but only by consent of the C
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policy justifies these distinctions
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compulsorily on payment of .compens
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have already touched on this. I do
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‘s favour would have been a right
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in cases of judicial misbehavior, a
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of course, is not in the ordinary s
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of these provisions is to ensure th
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which he appealed by special leave.
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does not exclude the application of
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“………no person should be pun
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state. By section 19 (2) of the Cro
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tot for anything done by Maharaj J.
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of this section ;and (b)to determin
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this was a finding that the judge,
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February 27. The judgment of the ma
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It was a state act performed by the
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A defendant is always entitled to k
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to come before the House of Lord’
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The key word here is “inseparable
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Assuming that “commonwealth” wa
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the High Court within a limited tim
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Ouster clauses which take effect on
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jurisdiction if they are disputed b
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eviction by NAFCO. The special and
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separation of powers enshrined in t
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2. that the Honorable trial judge e
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section 2 of land ordinance, 1922 i
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statutorily on trust for the benefi
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such consent is required only in ca
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language of that section precludes
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There is merit in this ground of ap
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section 4 and would undoubtedly hav
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Clearly this section in unconstitut
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ional crystallization, of the idea
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That, the exparte application for t
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espect, after all is said, and writ
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to BAWATA’s Secretary General who
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From the above persuasive cases, I
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opinion, that where the Court used
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JudgeCourt: Now case to be referred
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the charge had already been entered
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was violative of her basic right as
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in that court, and in the course of
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In the result the appeal by the Dir
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that the proceedings before the Tri
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Prof. Shivji urged that when the ma
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Administered by inferior tribunals
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was found to be a nullity for irrat
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Those who espouse the narrow approa
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31. (1985) At p. 3532. One of the p
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Application on merits. Mandamus iss
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Those who exist above the people mu
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November 1986 they made a market su
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In the case at hand of course the a
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of each case, but it a fundamental
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I note that in the Advisory Committ
Page 139 and 140: The complaint is not that a person
Page 141 and 142: The applicants. Who were bidding in
Page 143 and 144: A paradigm,but not the only case of
Page 145 and 146: claims not to contain legal rules,
Page 147 and 148: 743. All these cases show that it i
Page 149 and 150: as conclusive of the absence of a c
Page 151 and 152: The code is therefore framed in non
Page 153 and 154: “In my view to allow English citi
Page 155 and 156: eceive a further ⅔ per cent based
Page 157 and 158: alternative and that, reading the u
Page 159 and 160: On the morning of 25 November 1986
Page 161 and 162: The issue is thus whether the histo
Page 163 and 164: The Criminal Injuries Compensation
Page 165 and 166: part of decision - makers and for b
Page 167 and 168: Nothing that I have said can fetter
Page 169 and 170: underestimating the extent tot whic
Page 171 and 172: egulation” may be misleading. The
Page 173 and 174: More recently, in Reg. v. British B
Page 175 and 176: NICHOLLS L.J. I entirely agree with
Page 177 and 178: The code also contains some detaile
Page 179 and 180: appellant was tried on a count char
Page 181 and 182: founder parties should have used th
Page 183 and 184: (4) Since the case is based on aver
Page 185 and 186: Thus we held that any member of the
Page 187 and 188: procedure prescribed by Order 1, ru
Page 189: It is settled in our constitutional
Page 193 and 194: It follows from the foregoing that
Page 195 and 196: will not succeed. The court cannot
Page 197 and 198: The petition originally raised very
Page 199 and 200: disclosed in that context. He maint
Page 201 and 202: of the legislation and that there i
Page 203 and 204: …the restriction imposed at commo
Page 205 and 206: This provision, in my view, caters
Page 207 and 208: I agree and can not wish to add any
Page 209 and 210: It is contended by the petitioner t
Page 211 and 212: It extends to modification of those
Page 213 and 214: These amendments were, therefore, v
Page 215 and 216: courts in respect of the stay of su
Page 217 and 218: namely, an assembly or procession n
Page 219 and 220: of law and order. I provision like
Page 221 and 222: Until the Legislature makes appropr
Page 223 and 224: his representatives; the right to r
Page 225 and 226: in the Constitution? In that case t
Page 227 and 228: to appoint persons to offices in th
Page 229 and 230: I hereby certify that this is a tru
Page 231 and 232: It is sworn further that in the cou
Page 233 and 234: applicants. And if I may say now, a
Page 235 and 236: A part from the applicants obligati
Page 237 and 238: It seems that this issue once decid
Page 239 and 240: Finally, Mr. Werema made an alterna
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to find a case which shows there is
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Delivered.Dr. Lamwai for the Applic
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However, he pointed out that it is
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IN THE COURT OF APPEAL OF TANZANIAA
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anything, he was simply answering w
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appellants the opportunities of bei
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For these reasons we are satisfied
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jurisdiction to go wrong. Neither a
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Essentially these grounds are alleg
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in agreement. However, the advocate
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Attorney General was duly summoned,
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Once we hold as indeed we do, that
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surfaced from the very beginning. I
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of Dodoma Zone Mr. Mwambe duly inst
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26 Act No. 16 of 198427 Chapter 360
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the case of Attorney-General v. Les
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1991on the Democratic system in Tan
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efusal in short the decisions were
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public interest should not be too b
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operation was “thoroughly outdate
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In the final analysis, I find that
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J. dated the 24 th day of October,
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though we felt that the learned Sta
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(a). that every persons shall, when
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The more difficult question is whet
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Turning now to the requirement that
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The appeal is allowed with cast, an
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6. Tanzania Air service ltd v minis
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A company (Cyanamid) register a pat
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506 All England Law Reports (1975)
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a. patents in 1953 (Lowe) and 1954
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efore any question of balance of co
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object that I have indicated above
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this. Returning therefore to the in
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MAGNUM AGENCLES COMPANY LIMITED RES
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Without going into his locals stand
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BANK OF TANZANIA MWANZABut the prop
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Similarly the present record does n
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78 TANZANIA LAW REPORTS (1987) T.L.
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Maina ,J This is an application to
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e made informally. But with respect
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82 TANZANIA LAW REPORTS (1987)T.L.R
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Temeke, Dar es salaam, delivered in
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3. that the reference was in any ev
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2. that the application has no righ
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c.c.s.u v, minste for civil service
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communications headquarters (GCHQ)
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)2) of the European Convention on H
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dismiss persons refusing to accept
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matters relating to the dispassion
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extending he requirement of natural
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continue to be enjoyed although mig
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the grounds upon which administrati
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alter right or obligations enforcea
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I agree with your Lordships tat thi
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the appellants employment be termin
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The trial judge dismissed appellant
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the view that the appellant’s ter
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Court did not stop there. It consid
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In English I have been instructed t
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the respondents such order was gran
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to response to the .. of an appell
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Was Annex D.1 made in bad faith? Th
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when questioning the constitutional
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24 th May 1991 informing the appell
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We are therefore of the opinion tha
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him of that decision is in our view
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usurp the function of the High Cour
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MAUGHAM in maritime Elective C. Ltd
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We again agree with the learned jud
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However, the learned judge skipped
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filing of statements could not be s
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even to seem to express an opinion
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As we have already intimated the te
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the removal. But we reject the earl
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the Daily News and Uhuru newspapers
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M.D. BOMANIAg. JUSTICE OF APPEALJ.L
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Both parties are represented by cou
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THE SECUTITY FO EMPLOYMENT ACT 1964
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administrative law as seriously as
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interest are at stake. In any other
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the fundamentals of good administra
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mandamus should be made but it must
Page 407 and 408:
6. EXERCISE OF DISCRETIONARY POWERS
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Mr. Mselem was at a loss to know un
Page 411 and 412:
under s. 3 (3) of Cap. 104 and none
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affidavit and the representations o
Page 415 and 416:
17 th June 1987 requiring him to le
Page 417 and 418:
SongeaMohamed Ally Athumani now 54
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Ally Athumani PW1 had received. He
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Home is cases of ones in search of
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nothing about the subject matter as
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commissioner of Songea District was
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in all details to the one issued to
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approved by village Governments. DW
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forces that are always inconsistent
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under the Business licincing Act No
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applicants these could definitely n
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person against who he intends issue
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dealings. Expedient is not this Rep
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espondent to discharge its function
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(i) an order of certiorari 8 and se
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Mr. Mwaikusa argued that the releva
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that the Government has set on itse
Page 449 and 450:
AT DODOMACIVIL CASE NO. 23 OF 1993J
Page 451 and 452:
for Tabora Region . By a letter dat
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of the Constitution or the law of t
Page 455 and 456:
Another important consideration und
Page 457 and 458:
have been taken into account, wheth
Page 459 and 460:
withstanding the existence of an ou
Page 461 and 462:
arbitrary decision. And it offends
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to the Principal Secretary to the P
Page 465 and 466:
I heard long and interesting arqume
Page 467 and 468:
public interest; second, it is the
Page 469 and 470:
the former the Principal Secretary
Page 471 and 472:
I think I can dispose of this matte
Page 473 and 474:
the whole field of the law relating
Page 475 and 476:
declaration except in a negative so
Page 477 and 478:
itom 108(1) of the First schedule t
Page 479 and 480:
egards the commission’s report, t
Page 481 and 482:
RULLINGSAMATTA, JK:This is an appli
Page 483 and 484:
impugned decision. As expected, I w
Page 485 and 486:
(g) on retirement in circumstances,
Page 487 and 488:
etire otherwise than on disciplinar
Page 489 and 490:
(c) for pupose of facilitating impr
Page 491 and 492:
“Whatever pleases the emperor has
Page 493 and 494:
decision has, I agree with Mr Nasso
Page 495 and 496:
Before I part with this application
Page 497 and 498:
7. REMEDIES1. Ajit Gordhan v Direct
Page 499 and 500:
21. Simeon Manyaki v Executive Comm
Page 501 and 502:
of which was annexed to the affidav
Page 503 and 504:
The above position was enshrined in
Page 505 and 506:
such as damages or on injunction. T
Page 507 and 508:
Should the prayer then be granted i
Page 509 and 510:
No cases referred to.Omar and Musta
Page 511 and 512:
IN THE HIGH COURT OF TANZANIAAT DAR
Page 513 and 514:
alleged circumstance, it is further
Page 515 and 516:
Mr Mallaba has traced the history o
Page 517 and 518:
Mr. Kisusi submits further that sin
Page 519 and 520:
ANDESSO STANDARD TANZANIA LIMITED .
Page 521 and 522:
proceed by way certiorari. He can f
Page 523 and 524:
AT MWANZACORAM: OMAR, J.A. HNZAVAS,
Page 525 and 526:
G.N. 41/92, the second respondent i
Page 527 and 528:
ecause it violates Article 13 of th
Page 529 and 530:
tenants, one enjoying legal protect
Page 531 and 532:
the provisions of the Rent Restrict
Page 533 and 534:
Lastly, in ground 5 the appellants
Page 535 and 536:
R V Income Tax Special Purposes Cou
Page 537 and 538:
had interfered with the administrat
Page 539 and 540:
LORD TEMPLEMAN. Parliament makes th
Page 541 and 542:
LORD GRIFEITHS. My Lords, I have ha
Page 543 and 544:
Because of this, it is normally unn
Page 545 and 546:
students at his school; that he was
Page 547 and 548:
unnaturally took the view that the
Page 549 and 550:
solicitor later at about 12.30 am v
Page 551 and 552:
Mr Baker was arranged for 4 pm that
Page 553 and 554:
counsel with whem a conference took
Page 555 and 556:
easonably benevolent construction o
Page 557 and 558:
Lord Donalsdson MR described Mr Bak
Page 559 and 560:
was made without jurisdiction, then
Page 561 and 562:
Court has been given . If the appli
Page 563 and 564:
in the earlier case may have coused
Page 565 and 566:
As the Sovereign cannot authorize w
Page 567 and 568:
When dismissiong the action Romer I
Page 569 and 570:
the Crown. (In this summary 1 put o
Page 571 and 572:
emedy against theCrown was not conf
Page 573 and 574:
easonable doubt as to the identity
Page 575 and 576:
Section 23 (2) (2) refers to petiti
Page 577 and 578:
Corwn in general, then s 21 (2) wou
Page 579 and 580:
epresenting the Crown, the third th
Page 581 and 582:
obtain an injunction (see also Merr
Page 583 and 584:
A both because there would be an in
Page 585 and 586:
It is interesting to note the comme
Page 587 and 588:
prohivition or certiorari (b) the n
Page 589 and 590:
proceedings as was available to you
Page 591 and 592:
lack of jurisdiction to grant inter
Page 593 and 594:
egarded as being open to challenge
Page 595 and 596:
quite out of accord with practice,
Page 597 and 598:
The validity of the injunction gran
Page 599 and 600:
IN THE HIGH COURT OF TANZANIAAT SON
Page 601 and 602:
October; 1993, the Regional Commiss
Page 603 and 604:
statutory authority for doing so, t
Page 605 and 606:
egulation 10 as read with S. 55 (1)
Page 607 and 608:
(4) In such a case the tribunal, wh
Page 609 and 610:
the penalty demands notwithstanding
Page 611 and 612:
question I have posed and speaking
Page 613 and 614:
first two prayers, to wit, orders o
Page 615 and 616:
and illegally taking then away from
Page 617 and 618:
I conceded that as wrong in view of
Page 619 and 620:
unquestionability upon its decision
Page 621 and 622:
deciding what the decision-maker sh
Page 623 and 624:
ut the judges must observe the cons
Page 625 and 626:
intended to furtmore national polic
Page 627 and 628:
society. That observation applies t
Page 629 and 630:
In the event, the prayer for a decl
Page 631 and 632:
25 th January 1978. However on 5 th
Page 633 and 634:
missing from the trial court record
Page 635 and 636:
One of the conditions set out in th
Page 637 and 638:
(a) that up to the 5 th February, 1
Page 639 and 640:
With regard to this passage of the
Page 641 and 642:
Patman Garments Industries Limited
Page 643 and 644:
dishonoured, or if he had broken th
Page 645 and 646:
Decree of the High Court and declar
Page 647 and 648:
y the Institute during the 1983/84
Page 649 and 650:
obdurate if not- thoroughly uncoope
Page 651 and 652:
examination papers to NBAA for mode
Page 653 and 654:
against him, so that he could effec
Page 655 and 656:
maters as the leakage of examinatio
Page 657 and 658:
Q. Can you tell us anything strange
Page 659 and 660:
IN THE HIGH COURT OF TANZANIA\MAIN
Page 661 and 662:
against a government minister or de
Page 663 and 664:
injunctive relief is sought? Althou
Page 665 and 666:
appears to have done, to hold that
Page 667 and 668:
the applicant leave to apply review
Page 669:
669
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