By Evarist Baimu Nyaga Mawalla - Home

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