By Evarist Baimu Nyaga Mawalla - Home

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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
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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
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The complaint is not that a person
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The applicants. Who were bidding in
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A paradigm,but not the only case of
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claims not to contain legal rules,
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743. All these cases show that it i
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as conclusive of the absence of a c
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The code is therefore framed in non
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“In my view to allow English citi
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eceive a further ⅔ per cent based
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alternative and that, reading the u
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On the morning of 25 November 1986
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The issue is thus whether the histo
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The Criminal Injuries Compensation
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part of decision - makers and for b
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Nothing that I have said can fetter
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underestimating the extent tot whic
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egulation” may be misleading. The
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More recently, in Reg. v. British B
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NICHOLLS L.J. I entirely agree with
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The code also contains some detaile
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appellant was tried on a count char
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founder parties should have used th
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(4) Since the case is based on aver
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Thus we held that any member of the
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procedure prescribed by Order 1, ru
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It is settled in our constitutional
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of judicial innovation to say that
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It follows from the foregoing that
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will not succeed. The court cannot
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The petition originally raised very
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disclosed in that context. He maint
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of the legislation and that there i
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…the restriction imposed at commo
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This provision, in my view, caters
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I agree and can not wish to add any
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It is contended by the petitioner t
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It extends to modification of those
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These amendments were, therefore, v
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courts in respect of the stay of su
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namely, an assembly or procession n
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of law and order. I provision like
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Until the Legislature makes appropr
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his representatives; the right to r
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in the Constitution? In that case t
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to appoint persons to offices in th
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I hereby certify that this is a tru
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It is sworn further that in the cou
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applicants. And if I may say now, a
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A part from the applicants obligati
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It seems that this issue once decid
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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
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6. EXERCISE OF DISCRETIONARY POWERS
Page 409 and 410: Mr. Mselem was at a loss to know un
Page 411 and 412: under s. 3 (3) of Cap. 104 and none
Page 413 and 414: 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
Page 419 and 420: Ally Athumani PW1 had received. He
Page 421 and 422: Home is cases of ones in search of
Page 423 and 424: nothing about the subject matter as
Page 425 and 426: commissioner of Songea District was
Page 427 and 428: in all details to the one issued to
Page 429 and 430: approved by village Governments. DW
Page 431 and 432: forces that are always inconsistent
Page 433 and 434: under the Business licincing Act No
Page 435 and 436: applicants these could definitely n
Page 437 and 438: person against who he intends issue
Page 439 and 440: dealings. Expedient is not this Rep
Page 441 and 442: espondent to discharge its function
Page 443 and 444: (i) an order of certiorari 8 and se
Page 445 and 446: Mr. Mwaikusa argued that the releva
Page 447 and 448: 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
Page 453 and 454: 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: withstanding the existence of an ou
Page 463 and 464: 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
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IN THE HIGH COURT OF TANZANIAAT DAR
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alleged circumstance, it is further
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Mr Mallaba has traced the history o
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Mr. Kisusi submits further that sin
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ANDESSO STANDARD TANZANIA LIMITED .
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proceed by way certiorari. He can f
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AT MWANZACORAM: OMAR, J.A. HNZAVAS,
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G.N. 41/92, the second respondent i
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ecause it violates Article 13 of th
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tenants, one enjoying legal protect
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the provisions of the Rent Restrict
Page 533 and 534:
Lastly, in ground 5 the appellants
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R V Income Tax Special Purposes Cou
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had interfered with the administrat
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LORD TEMPLEMAN. Parliament makes th
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LORD GRIFEITHS. My Lords, I have ha
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Because of this, it is normally unn
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students at his school; that he was
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unnaturally took the view that the
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solicitor later at about 12.30 am v
Page 551 and 552:
Mr Baker was arranged for 4 pm that
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counsel with whem a conference took
Page 555 and 556:
easonably benevolent construction o
Page 557 and 558:
Lord Donalsdson MR described Mr Bak
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was made without jurisdiction, then
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Court has been given . If the appli
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in the earlier case may have coused
Page 565 and 566:
As the Sovereign cannot authorize w
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When dismissiong the action Romer I
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the Crown. (In this summary 1 put o
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emedy against theCrown was not conf
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easonable doubt as to the identity
Page 575 and 576:
Section 23 (2) (2) refers to petiti
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Corwn in general, then s 21 (2) wou
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epresenting the Crown, the third th
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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
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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
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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
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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
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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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