By Evarist Baimu Nyaga Mawalla - Home

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court (1992) 1 QB 270) delivered on 29 November 1991 allowing the appealof the applicant. M. from the decision of Simon Brown 1 (1992) 4 All ER 97)delivered on 26 July 1991 dismissing M’s Motion dated 14 May 1991 tocommit, inter alios, the <strong>Home</strong> Office and the Secretary of State for contemptof court in (1) causing.Jurisdiction over the Crown or a government department or officer of the actingas such in respect of contempt of court since orders made against Crown andundertaking given on behalf of the crown were not enforceable against the Crownby any process of compulsion. On appeal, the Court of Appeal held that the<strong>Home</strong> office could not be held guilty of contempt because the Crown as an entityand government departments were not subject to the contempt jurisdiction of thecourts, but ministers of the Crown and civil servants were subject to thejurisdiction and the Secretary of State was guilty of serious comtempt inwithholding action toreturn the applicant from Zaire. The Secretary of Stateappealed.Held – Having regard to the unqualified language of s 31 of the supreme CourtAct 1981 the court had jurisdiction under s 31 to make coercive orders, such asinjunctions, in judicial review proceedings against ministers of the Crown actingin their official capacity and under RSC Ord 53, r 3 (10)b the court could grantinterim injunctions against ministers. Purthemore, if a minister acted in disregardof an injuction made against him in his official capacity the court had jurisdictionto make a finding of contempt would demonstrate that a government department536
had interfered with the administration of justice and an order for costs could bemade to underline the significance of the if would then be for parliament todeyermine the consequences of that finding. On the facts. The judge inchambers hearing the application for judicial review made on behalf of theapplicant had had jurisdiction to grant an injunction against the Secretarial ofState requiring him to procure the return of the applicant to the jurisdiction of thecourt, notwithstanding that the order was made before he had given the applicantleave to apply for judicial review. The Secretary of State, albeit in his officialcapacity, had properly bveen found to be in contempt in failing to comply withthat order, in failing to keep the judge informed of the situation and in failing toprotect the applicant’s position pending an application to the court to dischargethe order. The appeal would therefore be dismissed (see p 540 d, p 541 a to e, p564 f g, p 567 a to h and p 569 b, post).Dictum of Lord Bridge in Factortane Ltd v Secretary of State for Transport (1989)2 All ER 692 at 708 doubted.Decision of the Court of Appeal (1992) All ER 97 affirmedNotesFor contempt by disobedlence of a court order or breach of an undertaking, see 9Halsbury’s Laws (4 th edn) paras 69, 75, and for cases on the subject see 16Digest (Reissue) 81 –84, 796 – 815.For the Supreme Court Act 1981, s 31. see 11 Halsbury’s starvce (4 th edn( 1991reisse) 991.537
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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
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Mr. Mselem was at a loss to know un
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under s. 3 (3) of Cap. 104 and none
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affidavit and the representations o
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17 th June 1987 requiring him to le
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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
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AT DODOMACIVIL CASE NO. 23 OF 1993J
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for Tabora Region . By a letter dat
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of the Constitution or the law of t
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Another important consideration und
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have been taken into account, wheth
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withstanding the existence of an ou
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arbitrary decision. And it offends
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to the Principal Secretary to the P
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I heard long and interesting arqume
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public interest; second, it is the
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the former the Principal Secretary
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I think I can dispose of this matte
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the whole field of the law relating
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declaration except in a negative so
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itom 108(1) of the First schedule t
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egards the commission’s report, t
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RULLINGSAMATTA, JK:This is an appli
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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: R V Income Tax Special Purposes Cou
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
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prohivition or certiorari (b) the n
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proceedings as was available to you
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lack of jurisdiction to grant inter
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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
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IN THE HIGH COURT OF TANZANIAAT SON
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October; 1993, the Regional Commiss
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statutory authority for doing so, t
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egulation 10 as read with S. 55 (1)
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(4) In such a case the tribunal, wh
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the penalty demands notwithstanding
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question I have posed and speaking
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first two prayers, to wit, orders o
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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
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deciding what the decision-maker sh
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ut the judges must observe the cons
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intended to furtmore national polic
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society. That observation applies t
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In the event, the prayer for a decl
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25 th January 1978. However on 5 th
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missing from the trial court record
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One of the conditions set out in th
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(a) that up to the 5 th February, 1
Page 639 and 640:
With regard to this passage of the
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Patman Garments Industries Limited
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dishonoured, or if he had broken th
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Decree of the High Court and declar
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y the Institute during the 1983/84
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obdurate if not- thoroughly uncoope
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examination papers to NBAA for mode
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against him, so that he could effec
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maters as the leakage of examinatio
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Q. Can you tell us anything strange
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IN THE HIGH COURT OF TANZANIA\MAIN
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against a government minister or de
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injunctive relief is sought? Althou
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appears to have done, to hold that
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the applicant leave to apply review
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669
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