By Evarist Baimu Nyaga Mawalla - Home

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Accordingly one approaches this case on the basis, and I confess for my partan alarming basis, that the word of the Minister is outweighing the law of theland. However, having said that, one moves on to the far more difficult questionwhether mandamus will lie. It is sometimes said as a general proposition thatmandamus will not lie against the Crown or an officer or servant of the Crown. Ithink we all know in this day and age. That of which the most recent is Padfield vMinister of Agriculture, Fisheries and Food (1968) 1 All ER 694, (1968) AC 997.in which a mandamus was issued to a minister. Indeed that has always been thecase, as can be seen since as long ago as 1850 in R v Woods, Forests, LandRevenues, Works and Buildings Corars, ex parte Budge (1850) 15 QB 761 at768, 117 ER 646 at 649 Sir Frederick Thesiger expressed the proposition inargument in this form: Whenever a person, whether filling an office under theCrown or not, has a statutory duty towards another person, a mandamus will lieto compel him to perform it. “Those words of Sir Prederick Thesiger were in factadopted by Sir Alexander Cockburn CJ. There are of course, cases in which ithas been held that a serant or officer of the Cown may have as his only duty aduty towards the Crown. That, indeed, was the deciding factor in R v Treasurylords Cons (1872) LR 7 QB 3787’ but equally there are other case of R v IncomeTax Special Purpose Coms (1888) 21 QBD 313, (1886 – 90) All ER Rep 1139,which show quite clearly that where by statute an officer or servant of the Crownhas also a duty towards a member of the public then provided that member of thepublic has 2 sufficient interest, mandamus will lie.584
It is interesting to note the comment by Lord Parker about mandamus not beingavailable since similar comments were sometimes made about injunctions inprivate law proceedings. Nonetheless, there were limits at that time, as LordParker indicates, to the availability of mandamus,. It was necessary that thereshould be a duty which was owed to the applicant as a member of the public theduty which was required was not a private duty which would give rise to a right todamages in the event of a breach, but a public duty. In addition the injunctions beplaced on a named minister. As already indicated, in most situation todaystatutory duties are conferred on ministers in their own name and not upon theCrown in general see Professor Sir William Wade QC Injunctive relief against theCrown and ministers (1991) 107 LQR L. Anrthermore, by the time of theintroduction of the remedy of judicial review the potion had developed so that theprerogative orders, including prohibition and mandamus, were being grantedregularly against ministers without any investigation of whether a statutory duty,whih had not been complied with was placed upon the minister or some one elsein the department for which the minister was responsible. Thus the ImmigrationAct 1971 places some duties on immigration officers and others on the <strong>Home</strong>Secretary, but even where it is the immigration officer who has not complied withthe statutory duty it is the immigration officer who has not complied with thestatutory duty it is the practice to make an order of mandamus against theminister (an example is provided by R v Secretary of State for the <strong>Home</strong> Dept.exp Phanksoplear (1975) 3 All ER 497, (1976) QB 606). As a result of even more585
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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
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(g) on retirement in circumstances,
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etire otherwise than on disciplinar
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(c) for pupose of facilitating impr
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“Whatever pleases the emperor has
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decision has, I agree with Mr Nasso
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Before I part with this application
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7. REMEDIES1. Ajit Gordhan v Direct
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21. Simeon Manyaki v Executive Comm
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of which was annexed to the affidav
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The above position was enshrined in
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such as damages or on injunction. T
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Should the prayer then be granted i
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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
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: A both because there would be an in
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
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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
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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
Page 651 and 652:
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
Page 657 and 658:
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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