Administrative Law Lecture 2010 Phil Kunjombe

PRINCIPLES OF NATURAL JUSTICE

Introduction
It has once been observed by Hanington J, that the expression “Natural Justice” is
subject to likely decision. That is to say natural justice is flexible in its operation. In its
broadest sense, natural justice may simply mean the natural sense of what is right and
wrong and is a concept that is oftenly acquitted with fairness. In standard and
administrative law books, natural justice is being used in various senses to include
natural justice law, the law of God, the common right and reasoning, the natural sense
of what is right and wrong ,the fundamental and inalienable law, fairness etc.

For instance under the American Constitution the word,” the due process of law is used
to mean natural justice. The concept natural justice is very wide to the extent of
confusing people but to remove the confusion it has been reduced to an irreducible
meaning, that means to the core of the natural justice has been confined with 3 main
rules.

Before there existed only two principles; namely; the rule that a man cannot be a judge
on his own case (nemo judex in causa sua) famously known as the rule against bias
and the rule that ‘No man should be condemned unheard’ which is also known as the
right to be heard (audi alteram paterm). However, as time went on courts of law added
another natural justice rule, the right to know the reason to the decision.

By developing the principles of natural justice, the courts have decided a kind of a code
of fair administrative procedure, just as they can control the substance of what the
public authority is doing.

Through the principle of natural justice courts of law can now control the procedure by
which administrative bodies pass their decisions. The concept has a wide application in
the areas of discretionary and administrative powers in the ever growing governmental
powers over individual citizens.

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Observation of natural justice is intorrerable for the purpose of ensuring that however
wide the powers of stare and however the extent the discretionary they are conferred,
public authorities, still such powers are exercised in the manner that is procedural and
fairly.

According to Justice Jackson, procedural law, fairness and regularity are indispensable,
essence of liberty. Therefore the sum total of natural justice is a fair play in action. (no
condemnation unheard, not judge own course reason for decision)

WHEN DOES A DUTY TO OBSERVE NATURAL JUSTICE ARISE

It is not easy to pigeon-holed the circumstances under which the duty to observe natural
justice arise. However, it can be generally said that a duty arises in various situations.
The need to observe natural justice therefore, occur whenever it is particularly
important to an individual affected directly by a decision. Hence whenever the exercise
of power directly affect man’s rights, his property or character, it is more likely to be
subject to natural justice.

For example:
1) The University may not deprive its serious member of staff or impose a penalty
against a student without informing him of his charge and giving him an
opportunity to explain his defence.

2) Nor can a trade union or cooperation expel a member without giving him
adequate notice of the charge or the penalty.

Historical background of the concept of natural Justice:

It is said to be old as life itself. It is traced from Biblical times. For instance even before
Adam and Eve were punished, he gave them and chance to explain.
In its medieval times, natural justice rules required impartial adjudicators and fair
hearing.

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These principles were regarded as immutable order of things cannot be silenced. Even
the powers of Parliament cannot remove the principles of natural justice. These theories
lined into the 17/19 th century though by then it was incompatible with the modern
theory of parliamentary supremacy which gradually discarding the old idea.

In Bonham (1610) Dr Bonham at Cambridge University was ordered to be finned and

imprisoned by the college of physicians for practising in the city of London without a
licence issued by the college.

The statute under which the college acted provided that, fine should go half to the king
and half to the college. Justice Coke held that,” as the college had its own financial
interest in its own judgement it was improper for the college to entertain the matter, as
so doing amounted to being a judge in its own cause.

He further said, the court could declare that Act of parliament void if his own course or
was otherwise against common rights and reasoning. Therefore the concept, natural
Justice gradually developed in its dimensions but like most principles of administration
law, it suffered a severe setback during the world wars particularly WW2. After the war
there was renaissance of natural justice. The Universal Declaration of Human Rights
1948 gave principles of natural justice a remarkable impetus. From there natural justice
gained momentum.

In the case of Ridge Vs Baldwin(1964) AC 402) AC 40. Ridge the chief Constable of
Police of Britons was suspended from duty after being arrested and charged of
conspiracy to abstract the course of justice. At the trial he got acquitted leaving other
two accused, convicted and sentenced. The trial judge was critical with the leadership of
Ridge on the police force.

At the late date when a charge of corruption was brought against Ridge the prosecution
side tendered no evidence. Again the trial judge ordered Ridge to be acquitted, but again
commented on Ridge’s leadership on the force. The Watching Committee met the next
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day and ordered that Ridge be dismissed according to the Municipal Corporation Act
which provided inta alia that, the board committee could dismiss any police constable
whom they think is negligent in his duty.

Ridge was not called to attend the meeting, but he was told that he had been summarily
dismissed. He was also told of the resolution passed in the meeting. Ridge, through a
solicitor sent a letter of complaint but the same was rejected by the Committee. Ridge
appealed to the home secretary who, as well dismissed it. Ridge brought an action in a
court of law but also failed. He then appealed to the House of Lords.

Now Lord Reid made the following observation:”In modern times opinions have
sometimes expressed to the effect that natural justice is so vague as to be practically
meaningless because something cannot cut and denied doesn’t exist.”The court further
said “The Watch Committee was bound to observe what are commonly as principle of
natural justice before attempting to reach any decision.

The Watch committee was bound to inform Ridge on the grounds they proposed to act
and give him a fair chance of being on his defence. This case marks an important
change of judicial policy indicating that natural justice was restored to its rightful place,
and would henceforth be applied on a wider basis.

1) THE RULE AGAINST BIAS “Nemo Judex in Causa Sua”

The essence of the rules is that a judge is disqualified from determining any case in
which he may be or may fairly be suspected to be bias. The word “Judge” is referred to
mean any body whose decision is bound to affect directly the interest or rights of
another person. “Bias” means a pre-disposition to decide for or the true merits of the
dispute.

A line must nevertheless be drawn between genuine and fanciful case that pecuniary
interest however small is disqualification. But this not to say courts will be tolerant of
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other interest or influence that might be suspected of causing bias. In modern cases
pecuniary interested play a relatively small part but the court s are vigilant to eliminate
anything smacking in any way of favouritism.

On the other hand, personal bias may arise out of blood relation or marital relations of
friendship even hostility. Thus the existence of bias is a question of facts depending on
the circumstances of each case.

The distinction which was formerly drawn between matters which were judicial, quasi
judicial or purely administrative and that the principles of natural justice are only to
apply where a public body is performing judicial or quasi judicial functions is no longer
tenable, as from the decision of the case of Ridge. The principles cut across all decisions.

REAL LIKELIHOOD OF BIAS AND BIAS IN FACT

Whether bias exist or not depends on whether biasness does in fact exist or if not then
the court will look at the existence of likely circumstances that biasness exists. Real
likelihood of bias is therefore a test to see whether biasness exist in a particular case.
Real likelihood of biasness is based on any reasonable suspicion that the decision maker
might be biased in his decision.

The above tests have been competing on supremacy in determining the question of bias.
As to the determination of existence of biasness confusion has been caused by
concurrent use of different formulated tests for disqualifying bias. There are those
arguing that a judge should not be disqualified unless a factual bias exist, while on the
other hand another side is of the view that only likelihood of bias is enough to disqualify
a judge in a particular case.

Many judges have laid down and applied the real likelihood formula holding that the
tests for disqualification is whether the facts assessed by the court give rise to the real
likelihood of bias.

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This test naturally been emphasized in cases where allegations of bias were farfetched.
The test is in line with frequently used maxim “Justice should not only be done but
should be manifestly seen to be done. Thus this position has sometime lead courts to
entertain even farfetched allegations of bias.

Lord Denning UR explains in the case of Metropolitan Prop V. Lennon

(1968)3AIIER. In the case, the Rent arrangement committee had fixed a rent for three
flats in one block. The chairman of the committee was solicitor who lived with his father
in second block of flats owned by the same property group. The chairman of the firm
was negotiating about the rent with the land lords on behalf of his father and the other
tenants in the second block.

Holding:

LORD DENNING M.R.

So far as bias is concerned, it was acknowledged that there was no
actual bias on the part of Mr. Lannon, and no want of good faith.
But it was said that there was, albeit unconscious, a real likelihood
of bias. This is a matter on which the law is not altogether clear:
but …. in considering whether there was a real likelihood of bias,
the court does not look at the mind of the justice himself or at the
mind of the chairman of the tribunal, or whoever it may be, who
sits in a judicial capacity. It does not look to see if there was a real
likelihood that he would, or did, in fact favour one side at the
expense of the other.
The court looks at the impression which would be given to other
people. Even if he was as impartial as could be, nevertheless if
right-minded persons would think that, in the circumstances,
there was a real likelihood of bias on his part, and then he should
not sit. And if he does sit, his decision cannot stand: see Reg. v.
Huggins ([1895] 1 Q.B. 563); and Rex v. Sunderland Justices,

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([1901] 2 K.B. 357, C.A.) per Vaughan Williams L.J. ([1901] 2 K.B.
357, 373,C.A.)
There must be circumstances from which a reasonable man would
think it likely or probable that the justice, or chairman, as the case
may be, would, or did, favour one side unfairly at the expense of
the other. The court will not inquire whether he did, in fact, favour
one side unfairly. Suffice it that reasonable people might think he
did. The reason is plain enough. Justice must be rooted in
confidence: and confidence is destroyed when right-minded people
go away thinking: "The judge was biased."

In this case he was not a tenant, but the son of a tenant. But that
makes no difference. No reasonable man would draw any
distinction between him and his father, seeing he was living with
him and assisting him with his case.
No man can be an advocate for or against a party in one
proceeding, and at the same time sit as a judge of that party in
another proceeding. Everyone would agree that a judge, or a
barrister or solicitor (when he sits ad hoc as a member of a
tribunal) should not sit on a case to which a near relative or a
close friend is a party. So also a barrister or solicitor should not sit
on a case to which one of his clients is a party. Nor on a case
where he is already acting against one of the parties. Inevitably
people would think he would be biased.

Thus, as it can be observed from Lord Denning’s holding above, It was held that the
decision of the committee must be quashed as no man can be an advocate of a part in
one proceeding and at the same time be a judge be a judge of the same part in the other
proceeding.

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This decision reasserted justice must be seen to be done as operative principal. Other
judges have employed a “reasonable suspicious” test emphasizing that justice must be
seen to be done and that no person should adjudicate in any way if it might reasonably
be thought that he ought not to act because of source personal interest. In one case it
was even said that the rule for judges of all kind was that they must be free from, even
unreasonable suspicion of bias.

Therefore in many cases both tests lead to the same result “real likelihood of bias”
N.B It doesn’t simply suffice to say there is likelihood of bias,there must be strong
rasons and evidence to support the likelihood.

In Franklin v. Minister of Town and Country Planning (1948)2AIIER 289,

the new town Act 1946 empowered the minister, after constitution with local
authorities, to make a draft order designating a site of a new proposed town. If objection
were made and not withdrawn, the minister was bound to arrange a local public inquiry
and consider the report of the person calling the inquiry. While the Act was still a Bill
the minister made a public speech stating that Stevenage would be the first new town
when the Act becomes law.

He made a draft order designating Stevenage to be a new town. There rose objections.
The minister made a local inquiry, and the local inquiry was held on the objection of the
city. Later the minister confirmed the draft order, the validity of that confirmation was
challenged to the High Court. The House of Lords held that there was no evidence that
the minister had not genuine to consider the report that held the inquiry that his
precious comment did not amount to bias.

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EXCEPTIONS TO THE RULE VS BIAS

a) Necessity
In all cases mentioned and discussed the disqualified adjudicator could be dispensed
with or replaced by someone to whom the objection did not apply.
But there are many cases where no substitution is possible since no one else is
empowered to act.
Natural Justice then has to give way to necessity or otherwise there is no means of
deciding and the machinery of justice will breakdown.
In the case of Tolpull (II) 4 Co. Ltd v. Mole (1911) 1KB 836 the court registry
was sued unsuccessfully in his own court and he had to tax the costs in his own
favour.
Another example on the necessity as an exception is the case of Judges vs. AG of
Cap 378 Saskatchewan (1937)53. In the case, the government of the
Saskatchewan called upon the court to determine whether salaries of judges were
subject to income tax. The Privy Council held that the court was right to decide it as
a matter of necessity. It was confirmed that the salary of judges were subject to
income tax.

b) Statutory dispensation
The Court strictly didn’t apply the rule against bias, which the parliament attempted
to mitigate it by granting exception on particular cases. Difficulties arose especially
in case of justices of peace who often had other public functions which might
disqualify him from adjudicating. For instance the public Health Act 1875 allowed
them to adjudicate under the Act notwithstanding membership of any local
authority, but the courts put a narrow interpretation upon such provisions, holding
that “Any departure from the university acknowledged principle of natural justice
required clear words of enactments. For example, the dispensation in the Public
health Act did not therefore prevent the court from quashing a conviction.
Not clear meat or meeting? Concerning bad meeting, where one of the judges had
taken part in the town Council meeting.

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For Example, in R vs Barnsley licensing Justice Exp. (1960)2 QB 167, the

spirits licence was granted to a cooperative society six out of seven justices were
members of the society and derived small dividends from the grants of the licence
would enable them to buy spirits at a significant discount. It was held that, this was
a mere technical disqualification under the terms of the Act and that since there was
no real likelihood of bias the grant of the licence was valid.

2. AUDI ALTERAM PARTEM

This is the so called, the right to fair hearing. Fair procedure is fundamental that
both sides/parties be heard that a board or tribunal vested with power to act and
therefore affect property, liberty, rights and character of the citizen, that board or
administrative authority or tribunal has to give an opportunity of being heard before
it goes on. This principle is far reaching of principles of natural justice since it can
embrace almost every question of fair procedure (due process)

It is also broad enough to include the rule against bias since the fair hearing must be
unbiased hearing. Courts have succeeded in enforcing the principle very widely,
broadly speaking in all persons where legal rights or status are affected by the
exercise of administrative power. The right to a fair hearing has been used by the
court as the base on which a fair administrative procedure code is build.

In the case of R v. Cambridge university (1723)

The University of Cambridge has deprived a scholar of his degree on account of his
misconducts in insulting the vice Chancellor’s court. The Court of Queen’s Bench
reinstated on a mandamus on the ground that the dismissal was unjustifiable and
that in any case he should have received notice so that he could make his defence as
required by the law of good and bad. This is nice example of divine law.

The numerous new administrative authorities, both local and central which came in
to being in the 19th and 20 th century opened up a new territory for the principles of

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natural justice. The character of the authority was not what mattered, but was the
character of the power exercised if it adversely affected legal right.

The case of Cooper vs. Wondsworth Board of Works (1963)14 CB

Under an Act of 1855 it was provided that “No one might put up a building in
London without giving 7 days notice to the Local board of Works and that if any one
did so the board might have the building demolished.

A builder nevertheless began to erect a house in Wondsworths without giving due

notice. When the building reached the 2nd storey the Board of works sent men late in
the evening who demolished it. The Board did exactly what the Act provided they
might do in circumstances in which they must do. The builder brought a successful
action for damages on the destroyed building, merely on the ground that the board
had no power to act without first asking him what he had to say for himself.

The court held that:- (principles)

Erle C.J
“I think the Board ought to have given notice to the plaintiff and
allowed him to be heard. The default in sending notice to the Board
of the intention to build is a default which may be explained. There
may be a great many excuses for apparent default. The pad may
have intended to conform with the law, He may (have) actually
conform though by accident his notice may have miscarriaged. I
cannot conceive any harm that would happen to the District Board
from hearing the part before they subjected him to a loss so serious
as to demolish his house”

Another observation by Judge Willes, J.

“I am of the same opinion, I apprehend that the tribunal which by
the law vested with power to affect the property of one of the
Majesty’s subject, is bound to give such subject an opportunity to be

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heard before it proceeds, and that rule is of universal application

and founded on plainest principles of justice”

Byles, J. was also of the opinion that:

“It seems to me that the Board is wrong whether it acted
judicially or ministeriously, I am convinced that the Board acted
Judicious because it had to determine the offence and to apportion
a punishment as well as the remedy. Although there are no positive
words in the statute requiring that the part shall be heard, yet the
justice of common law will supply the omission of the legislature.”

RETREAT FROM THE DOCTRINE OF AUDI ALTERAM PATERM

The 2 world wars had negative impacts on the growth and application of principles of
natural justice in general and the rule of fair hearing in particular.
The House of Lords, Courts, tribunal or other administrative authorities began to
hold that natural justice had no application to ordinary administrative actions.
That’s to say the courts adopted the tendency of categorizing between functions
which were purely administrative and those which were quasi-judicial and judicial.
It then began to be said that if the function was administrative or purely
administrative it could not be judicial or quasi-judicial, thus not subject to natural
justice.

The first denial of the rules of natural justice was in the case of Nakkuda Ali v.
Jayaratne (1951) AC 66. In this case the textile controller in Ceylon made an
order cancelling the applicant’s licences to act as a dealer. The applicant sought to
have the order quashed. The controller acted under the defence regulation that
empowered him to cancel any licence if he has reasonable grounds to believe that
any dealer is unfit to continue to act as a dealer. The court held that: The
circumstance demanded a fair hearing but that had in fact been given. The Privy
Council agreed that a fair hearing had been given and held that it was not necessary.
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The court further said that, there was no ground for holding that the controller was
acting judiciary or quasi-judiciary. The power stands by itself on mere words of the
regulation and hence there was nothing to consider beyond the veils.

In another case; R.V Metropolitan police Commission exp-Parker (1953)

WRL 1150. A London Taxi driver’s licence was revoked without hearing. The power
to grant and revoke licence was vested to the commissioner. The driver was allowed
to appeal before the licence committee but the committee didn’t allow him to call his
witness to contradict the evidence of police. His licence was revoked, and he applied
for certiorari (order to quash the decision) on the ground that the hearing given to
him was not fully and fairly discharged.

The court held that, he was not entitled to hearing at all, for the laws in London
provided that the commissioner will revoke any licence if satisfied that the licence is
not fit to hold such a licence. The commissioner was not sitting as a judge but as an
administrator.

The doctrine was reinstated/revived in the case of Ridge vs. Baldwin (1964) by
Lord Reid reinstated the right to be heard and thus rules of natural justice were put
back to its original place. Lord Reid held inta alia that; Judicial, quasi-judicial and
matters purely administrative all are subject to the principles of natural justice and
what is required is fair play in action.

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3) REASON FOR THE DECISION

This rule means that every ordered must certain reasons in support of it. Giving reasons
in supporting of an order is considered to be the 3 rd principle of natural justice
A part has the right to know, not only the result of inquiry but also the reasons in
support of the decision.

There is no general rule of English law that reasons must be given to administrative or
even judicial decisions. In T2 also till very recent it has not wholly accepted that the
requirement to pass speaking orders is one of the principles of natural justice. But Lord
Denning in Breen vs. Amalgamated Eng. Union (1971) All ER said Lord Denning
MR. “The giving of reasons is one of the fundamentals of good administration”

The condition to record reasons introduces clarity and excludes arbitrariness and
satisfies the part concerned against who the order is passed. Today the government
functions have increased, administrative tribunals and other executive authorities have
come to stage and they are armed with wide discretionary powers. There are all
possibilities abuse of power by such authorities and thus breach the principles of
Natural Justice

OBITA DICTA
Reasons for the decision disclose how the mind is applied to the subject matter for the
decision, whether it’s purely administrative or quasi judicial.

a) The court insists upon disclosure of reasons in support of order on three grounds:
b) The party aggrieved has the opportunity to demonstrate before the appellate or
revisional court that the reasons which pursued by the authority reject his case
were remise(errored)
c) The obligation to record the reasons operates as deterrent (prohibitory) against
possible arbitrary action by the executive authority invested with judicial powers.
d) It gives satisfaction to the part against whom the orders are made.

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NATURAL JUSTICE IN EAST AFRICA

Principally there is no difference the applicability of principles of natural justice in
E.A and common law.

In Ndengwa vs. Nairobi Liquor licensing Board (1987) EA 709, Ndengwa

sought an order for certiorari to quash the decision of the liquor licensing Board for
cancelling his licence on the ground of biasness. Prior the meeting to deliberate on
his licence the President of the board and other members visited his premises and
informed him that his licence would be cancelled.

At the later board meeting, the president other members gave unfavourable
comments and finally revoked his licence. It was held that this was a clear hole of
branch of the rule against bias.

Note: There is no much difference with the position at common law

In Jim David Ngonya vs. N.T.C The applicant was dismissed from the
employment as a branch manager on the audit report whose content were shown to
the applicant when the board of directors met to deliberate on the applicants case.
The G. Manager who initiated the proceedings the appellant had ordered the audit to
be conducted was present in the meeting, but the applicant was absent. The
applicant challenged the validity of his dismissal on the basis of mandamus and
certiorari on the violation of natural justice.

It was held that: As the audit report was pre judicial to the interest of the applicant
and was the base of the decision it ought to have been shown to the applicant to
contradict it. It was held further that, as the G. Manager was in the nature of
prosecutor and was present during the deliberation of the board therefore the
proceedings were vitiated by bias (Some elemen ts of real likelihood of bias)

In the case of Simon Manyaki v. IFM (1984) TLR 304

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The applicant was a 3rd year student at the respondent Institute. In the Jan 1984
final exams it was discovered that the examination papers and model answers had
examination papers and model answers had extensively licked. The exam results
were nullified and the students were called to reseat in April 1984. In addition the
committee was set up to probe the lickage and prepare a report. The applicant was
one of those who were investigated by the Probe committee. On April 27th the
students were called to reseat the exam. The applicant got officially informed that he
had passed the exam.5 days later, 2nd May he was served with a letter terminating
his studies at the institute and nullifying his April examination results. It also barred
him from attemp ting any IFM examination in the future.

The applicant filed an application requesting the High court to exercise its discretion
and grant two orders,” Certiorari” and “mandamus”
It was held that;

It was argued in favour of the applicant that the probe committee did not sufficiently
appraise the applicant of the pre judicial allegation against him and he was not
offered an opportunity of being heard. An administrative body exercising functions
that impose directly on legally recognised interests has a duty to act judiciously in
accordance with the principles of natural justice.

Four main principles established (Parameters of natural justice)

a) Time, opportunity effectively to prepare his answers and collect evidence
necessary to rebut the case against him.
b) Opportunity to contradict or comment on the materials that have been tendered
against him.
c) Opportunity of representing his own case(the right to be heard)
d) To be given a reasonable and fair deal

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PROGRATIVE ORDERS

Prerogative orders are court orders (writs) that

What is judicial review?

Judicial review is the procedure by which an individual person can seek to challenge the
decision, action or failure to act of a public body such as a government department or a
local authority or other body exercising a public law function.1 If you are challenging the
decision of a court, the jurisdiction of judicial review extends only to decisions of
inferior courts.

Judicial review has also been defined to mean;

Judicial review is the doctrine under which legislative and executive
actions are subject to review, and possible invalidation, by the judiciary.
Specific courts with judicial review power must annul the acts of the state
when it finds them incompatible with a higher authority, such as the terms
of a written constitution. Judicial review is an example of the functioning
of separation of powers in a modern governmental system (where the
judiciary is one of three branches of government). This principle is
interpreted differently in different jurisdictions, which also have differing
views on the different hierarchy of governmental norms. As a result, the
procedure and scope of judicial review differs from country to country and
state to state.2
Judicial review therefore does not extend to decisions of the High Court or Court of
Appeal. Judicial review must be differentiated from an appeal on a number of ways. And
to be precise a judicial review as applicable must be used where you are seeking:
a) A mandamus, a mandatory order requiring the public body to do
something
b) a prohibiting order (i.e. an order preventing the public body from doing
something and formerly known as an order of prohibition); or

1
See further at http://www.hmcourts-service.gov.uk/cms/1220.htmb
2
Read further from http://en.wikipedia.org/wiki/Judicial_review

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c) certiorari an order quashing the public body's decision

d) injunction and a declaration

Differences between judicial review and judicial appeal

In judicial review the HC gives no consideration on the merits of the decision of the
body but it looks on the legality of the action or decision, Thus when reviewing the
decision of the administrative body and if it the decision offending the laws the HC will
only quash the decision.

There is no substitution of the decision of the public body with a new decision in appeal.
The distinction was emphasized in the case of R vs Northumberland
Compensation Appeals exp Shaw (1954)1KB 338. In this case where it was
affirmed that, “some of the remedies can be obtained from the High court in its
appellate jurisdiction, but are not available in judicial review.”

The powers of judicial review are not derived from statutes; they are inherited from
English courts (Queen’s Bench or Kings) depending on who is on throne at the time.
The extension of these powers to the TZ HC has been through 5.2 (2) of JALO 1961 cap
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DISTINCTION BETWEEN PUBLIC AND PRIVATE REMEDIES

When a public authority or board commits or breaches a contract or acted contrary to

the law, the affected person may see the board in count where it can be liable like any
other.

In Municipal Board of Mombasa Kala (1955) EAC 390 the Board was sued
successfully for trespass when the board demolished the respondent’s house after
serving with ultra vires demolition order. The respondent applied private law to enforce
his rights. On order for award for damages is typical private law remed y.

There are many circumstances where private law remedies cannot be available to a
wrong committed by a public body. For instance where an application for a license is
wrongfully rejected for such cases the affected person has to look for other remedies
which are usually public law remedies developed under common law.

These are certiorari, mandamus, prohibition and habeas corpus. These are known as
because originally they were used by the crown at his or her discretions (not found in
any statute). Principally they are to insure that public bodies actions are within their
limits conferred by law. However for the crown to uphold legality it was necessary for it
to be moved by the person so affected by the illegality and not in SUO MOTO.

PROCEDURES FOR PREROGATIVE REMEDIES

As they are typical public remedies they can be issued against private individuals unless
an individual is vested with some administrative powers or public duties or the powers
of public nature.

Prerogative orders are available against public authorities or administrative bodies.

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Formerly predicative orders were Royal monopolies hence had to be brought under the
name of the crown at the instance of a person who complains in notice done to him.
The King/Queen would the stand on the behalf of the dormant. In TZ the format used is
that the name of the applicant who initiates the proceedings against the body or
administer body, for example Eg: Y v. TTC and A.C.

The producers for prerogative orders by not statutory rather the procedure used is that,
as it was obtained in England (common law). The law Reform (Fatal Accidents and
Miscellaneous Provisions Ordinance CAP 360 in amended by the act No. 55 eg. 1968
and Act No. 7 of 1991 Specifically sections 17, 17A and 1G are applicable for prerogative
orders.

This law (above) gives the Chief Justice powers to make rules of the court to govern
prerogative Orders but till to date no such rules have been enacted and courts resorts to
the rules of practice as these of England as per JALO 1961. (No rules to date been
made by the C.J though). Thus Tanzanian courts rely on UK passed rules/
procedural rules on felling applications for prerogative orders 18/4/20006.

On which procedures do courts in England apply in the application of prerogative orders

was answered by the Court of Appeal for East Africa in DSM Motor trans Co. Ltd
transport licensing Authority of Tanganyika others (1959 E.A 403). In
recognition of the applicability of procedures of the crown Office Rules of 1906, the CA
held that the procedures and practices obtained in England on 22 July 1920 is what is
contained in the crown office rules of 1906.

Thus those procedures are based on the Crown Rules and applicable in Tanzania are
based in two stage process;.
1. The applicant must apply for leave to apply for a substantive orders he wished to
get the application for leaves is made (ex-parte) to a single judge in chamber.
After having the ex-parte application the court has to decide whether to grant
leave to the applicant to file the substantive order or not.

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The purposes for the application:

To remove/weed out the applications which a frivolous (baseless informed) and
leave that which the applicant has a genuine cause of action. (This is to
establishment a premafacie case). If the court is satisfied that the applicant has
established a case the court will grant leave and directions to serve summons
upon the respondent calling him to show course why remedies sought should not
be granted.

2. The application for prerogative order is made to blearier applications approved

by an affidavit (sworn statement by applicant.)

The respondent may appose the application by filling a counter affidavit in

advance of the date of submitting arguments..

What procedures to be applicable in TZ the law reform (Fatal) Accidents and

Miscellaneous provisions Ordinance an amended by Act No. 55 of 1968 and 27
of 1991, JALO CAP 453 and section 95 of Cap C of 1966) HCs have been given
power to determine.

Act No. 27 of 1991 made it mandatory to serve the Attorney General of state with a copy
of every application for leave or order even if the remedy sought is not against the A.6
or any department of central government ( the government is made part will be the
second respondent).

With regard to prerogative remedy of habeas corpus there is procedure under habeas
corpus rules which were properly enacted under the criminal procedure code. (CAP. 20
repeated by the CPA No. 9 of 1985.

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1. CERTIORARI

Is an order of the High Court; in exercising it is inherent power, to quash the decision
order or other similar acts of the inferior tribunals or administrative bodies or authority.
Section 2 (2) of JALO 1961 together with Article 108 of the URT Constitution effectively
serve the High Court with indecent power or jurisdiction. It should be noted that an
order for certiorari bars not the relevant body/ Authority to come with a new decision to
replace the quashed one.

In case the court quashes a certain decision of an administrative body by issuing a

certiorari, the certiorari is not for the High Court to direct the inferior body (whose
decision is quashed) which way to decide when it, seeks to reconsider the matter. No
direction is normally given by the HC). But naturally when reconsidering the matter the
relevant authority is expected to avoid ice illegalities upon which the former decision is
quashed by certiorari.

Grounds for Certiorari

In order to obtain an order the applicant must show one as more grounds for certiorari.
These are;

a) Either the order or act to be quashed is ultra vires or

b) The order was made in error of law
c) The order is in breach of principles of natural justice.
All cases relevant to judicial review are relevant generally to certiorari, depending on the
instance or facts of each case. An order for certiorari may be sought and be granted of
only one or of other prerogative orders. See for example the case of Festo Balegere v.
DSM, City Council where the court issued all the three remedies.

The Atkin’s dictum

It is for the aggrieved party to prove that the administrative body, hard duty to act
judiciously. At one time to review of administrative action had a set Bach and one
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would get the order for prerogative named by establishing certain conditions as paid
down by Lord Atkin in R. Electricity commission (1924).
Lord Atkin observed that…
“…….. whenever anybody of persons with legal authority to
determine question affecting the subjects rights and having the
duty to act judiciously act in excess as their legal authority they are
subject to control jurisdiction of the kings Bench Division exercise
in those writs or orders.”

To that effect for certiorari to be issued the aggrieved pant must prove that the public
authority had a duty to act judiciously. Thus from the Atkin’s Dictum it becomes clear
that an order of certiorari can be issued if the conditions below are met:
a) The judicial /quasi judicial authority must have legal authority so to act.
b) Such authority must be an authority to determine questions affecting
rights of the subjects.
c) It must have duty to act judicious.
d) It must have acted in excess of its authority (ultra vires).

The Atkin’s Dictun was applied in different cases. For example, in R. v. Boycott ex-p
Keasley (1939) 2KB 651 before it was give a decent tribunal or a severe blow in
Ridge v. Baldwin’s case. In R. VS Paddington Valuation office (1966)1&B 380,
Lord Denning referred to Atkins diction and held that:
The valuation office was subject to control by prerogative orders.
The valuation offices is a public duty he has legal authority on
powers to determine questions affectively the rights of the subject
this power carry with it this duty to act judiciously which means, I
think fairly unjust in accidence with the statute.

This was then called Lord Denning’s Dictum.

Note that, the policy/ rationale behind Lord Deeming dictum is that the duty to act
judiciously in implied in every power or legal authority which determine questions

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affecting the rights of the subjects. Thus to Lord Denning the aggrieved party has only to
power that the authority had a legal duty to determine the question.

Circumstance under which certiorari will not be issued/granted.

Certiorari being a prerogative remedy in a discretional one and hence in not granted as
of right or as a matter of cause there is granted in the discretion of the court. This is to
say; even after the grounds for certiorari being established still the court may refuse to
the order of certiorari.
In practice if the court refuses to grant the order it will issue resources for the refusal
hence from the practice it is possible in certain circumstances in certiorari is likely to be
refused.

The following are circumstances likely for certiorari to be refused.

a) Availability of alternative remedy this is the availability of other remedies

not yet existed by the aggrieved person the right appeal to the minister. In the
case of Moris Onyango V. SR. Investigations Office (1980) Samatta J
observed that ;

“The order is not one of rights and is not issued as a matter and cause the
purposes of the order are to supply to defects of justice. It will thus be
issued where there is no specific claim, although where there is alternative
legal remedies such mode of redress is considered by the court to be less
convenient, beneficial and ineffective “.

Therefore the applied dismissed as the applicant had a right to send his claim to the
Commissioner General and had actually stone no and was waiting for the
commission’s decision . There is no hard fast rule because each and every case had to be
determined on the hence of its particular facts.

Also in Amiri Juma & Others v. THA Misc. Cv Cause No.37 of 1980. The
applicant had not exhausted their statutory right of further reference to the Minister but
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the court issued certiorari on the basic of the respondent decision which was will and
void at low. Thus there was no decision at all to make reference to the minister.

b) Where the applicant is somehow to blame.

An application for certiorari may be refused even if there was no alternative remedy and
ground for its awards have been sufficient established where somehow the applicant is
to blame for the delaying at the fine of felling the application. The most common blame
is the delaying at filing the application according to CROWN OFFICE RULES 1906 an
application for certiorari will not be entertained by court if it is brought after 6 months.
Similarly under S. 18 (3) of law Reform (fatal Accident & miscellaneous Ordinance as
amended 1968 provides for 6 months time to appeal (time barred).

c) Where the conduct of the applicant has been unreasonable.

This can be evidenced from the case of Re: Exported fry (1954) WLR 750. The
Fireman refused to clean the uniform of his supervisor claiming that the order was
unlawful. He was punished by a caution or warming he sought certiorari to quash the
warning order. Certiorari was refused and the court observed that the applicant
disobedience was extra- ordinary foolish conduct as he could simply obey the order and
then complain through the kid down procedure.

d) Where the practical effect of the Orders is unreasonable.

This happens in cases concerning public order. In Conrad Berege VS Registrar of
Co-op societies and the AG Misc Civ. Cause No. 35 of 1990 Dsm. The applicant
established that the removal of the management committee of MOROGORO Regional
co-operative. Union Ltd 1984 of which he was a care taker committee was done ultra
vires and in breach of principles of natural justice.

The court refused to grant certiorari as its grant would have to effect of revisited the
applicant in office but already while the case was pending he had lost necessary
qualifications for holding that office and considerable hostility that will persist VS his
committee.
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e) Where the effect of certiorari will to be protect a privilege and not

right.
Principally certiorari is used to protect a right and not a privilege. This circumstance is
fully explained in the case of R.V.S. Ginning Board for Great Britain Exported
(1970) 2 All ER 528. In the case the applicant sought a gambling license in respect of
crock ford of a longtime has been operating.

The licensing Board deceased not to grant the license. The applicant applied for an order
for certiorari to quash the decision Lord Denning observed that: The gambling was a
privilege and not a right thus certiorari couldn’t be issued.

In Lujuna Balonzi Senior v. Reg, Trustee of CCM (1996) LTR 203 the Court
considered the locus standi as governed by common law according to which a person
bringing a matter to court should be able to show that he is right or interest has been
breached or interfered with.

See also the case of Festo Balegele Others VS Dar City Council Misc. Civ cause
No. 90 of 1995 H.C.T. DSM not reported) in the book of Chris Peter Maina on
Human Rights. It was an application by Kunduchi Mtongani residents for orders of
certiorari, rehabilitation and Mandamus.

An order for certiorari was to move the HC to quash the decision of the respondent to
dump the city waste and refused at Kunduchi Mtongani. An order for prohibition was to
prohibit or stop the respondent from continuing to carry out its decision to use
Kunduchi Mtongani as a refuse cite. And an order for mandamus was to direct the
respondent to discharge its functions properly and according to law by establishing an
appropriate refuse dumping ate and use it.

It was held that, the respondent’s decision to dispose refuse and waste at Kunduchi
Mtongani was Ultra vires the Local Government (Urban Authority) Act No. 8 of 1982.
First it was contrary to the city master plan. Second it was not a statutory duty for the
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respondents. To create nuisance but do not stop it nor is it to create sources of danger to
the reside acts.

And it wasn’t proper for the public authority or an individual to pollute and these by
danger lives to do so. It would be contrary to Article 14 of the URT constitution which
guarantees the right to life and its protection by the society. Hence the three orders
certiorari, prohibition and Mandamus were granted.

2. PROHIBITION
Principally the effects of certiorari are to question the order or decision that is made
ultra vires or principles of natural justice. But prohibition operates as a stop order to
restrain or to prohibit or stop the administrative body from continuing to act without
just diction on being contrary to law.

It is an order sought and granted in order to prevent a public body from continuing
carrying on its decision on which is ultra vires.
Grounds for prohibition (as those of certiorari) .
Example:
i. Being contrary to principles of N.J.
ii. Being Ultra Vires procedural, substantial
iii. Error in Law.

R.Vs Kent Police Authority Exp- Golden (1972) 2 ALL ER 705 the applicant
was certified to be suffering from method disorder by Chief MD Officer for that
reason, the respondent authority wanted to retire him compulsorily. The law required
them to refer Golden’s condition to a doctor before retiring him as they wanted the
doctor to whom Golden was referred to was the same chief medical Officer who had
early certified that Golden was suffering from mental disorder.

It was held that it was contrary to principles of natural justice practically the rule VS
bias because the doctor who had already formed his views on Guldens condition
previously is again referred for the some matter.
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Prohibition was issued to prevent /stop the doctor to act the reference.
Like certiorari, prohibition in discretionary and will not be issued where there is
alternative remedy which is convenient, beneficial and effectual.

Delay action in seeking prohibition may have effect of according the remedy in effectual.
Eg: if an application is brought when the act complained of has already been carried out
the court will not issue prohibitation as it will be meaningless. The act still be going on .
Prohibition may be issued to stop an act already started and is continuing.

There is no law providing for limitation period for applications of prohibition there is no
limit of period but must be during and within the act that is to be prohibited. The logic
behind is that if only before and during an act for after the act usefulness.

Where the act complained of is a continuing one prohibition may be sought after it has
started but the applicant may lose his chances of success if he comes to seek prohibition
after suffering the act complained of for a long time without during a thing to stop it.
Since prohibited is a prerogative order or remedy it is granted under the discretion of
the court for the purposes of protecting right not privilege.

3. Mandamus (Order to compel performance)

Mandamus a public law remedy issued as a command requiring performance of a public
duty. A duty, a person or body so commanded is under a legal duty or obligation to
perform a duty in question must be a public duty.

Public duty what is it?

i. Established by a statute
ii. Owed to the citizens
iii. Affects the rights of such citizens.
Mandamus will not be issued to compel performance of private duty, for example a duty
arising out of contractual agreement.

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In RE: FESTO BALEGARE’S CASE DSM. City council was completed to establish
another dumping site.

a) Legal duty (or Obligation)

A duty enforce able by mandamus is one that may have been imposed by a
statute.

In Festo Balegeres Case, after prohibiting the respondent from dumping

refuse at Kunduchi Mtongani for it was unsuitable for the purpose the court
issued an order of MANDAMUS to command the DSM City Council to locate and
establish a snit able site for solid waste disposal and use it.

Issuance of mandamus was possible been use under the Local Government
(Urban Authorities Act. 1982 that the council is under the obligation to provide
for collection and disposal refuse generated in the city. To establish and maintain
appropriate location for waste disposal. See John Mwombeki Byombatirwa
VS Reginal Commissiner and another (1986) TLR 73.

Mandamus was sought and issued by the high court so as to compel the
respondent who included the RPC to carry out the court order made in criminal
proceeding.

Goods belonging to the applicant had been seized by the police on suspicion that
they were stolen or unlawfully obtained. The applicant was acquitted at the end of
the trial court ordered return of the ceased goods to the applicant

The R.P.C. refused to return the said goods, to the applicant, hence mandamus
was issued to command and compel the R.C. and R.P.C. to return the said goods
to the applicant.

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(b) The duty must be imperative:

Mandamus in available to compel performance of a legal duty. It is not for
compelling exercise of discretionary powers. If it is within the powers of the body
to performance certain functions but there is no imperative obligation to perform
it.

What’s discretionary power?

Why Mandamus can’t be issued to compel exercise of discretionary power
because. Mandamus will be issued if the law says the city council SHALL
establish and maintain facilities for refuse disposal then the city council will be
compelled by MANDAMUS to established and maintain such a refuse.

But Mandamus shall not be issued if the law merely says, the city council MAY
establish those facilities. SHALL = Mandatory MAY = Discretionary (may or not)
For example in Re- fletchers Application (1970) 2 ALLE 52.

· The applicant was refused a leave to apply for mandamus to compel the
parliament commissioner to investigate his complaint.
· The refused was on the Commissioner may investigate such complaint as
such the law merely gave the secretion to investigate the complaint it did
not impose an imperative duty/ or obligation to investigate.

Exceptions:
However in some cases the law may be in a permissive term but still mandamus will
be issued especially in cases of granting license as it is said that the intention is not to
give absolute discretionally powers on public authority.

A duty of which its performance may be compelled by MANDAMUS must be public and
not private. However in some circumstances mandamus can be granted on a contractual

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duty. It can be available to enforce a contract which is meant specifically for the
purpose of carrying out public duty. A company under a contractor collects and dumps
solid waste in a city.

The exercise of discretionary powers must be lawful.

Correction:
1. Prorogation orders are issued as matters not matter right but.
The Minister – whether the Minister decision was fair. The minister may discretion
prepare or not. But once prescribe it shall imperative mandatory. Minister decision was
full & void.

The exercise of discretionary power must be lawful. Attaching mandamus would not
issue to compel the exercise of discretion once a person vested with discretion out to
exercise sits. The court’s discretion must be in accordance with the legal principles. It
must imperative duty to exercise that power lawfully it is that duty which can be
compelled by mandamus. This express why in most cases certiorari could mandamus go
together.

That’s to say certiorari is to quash the decision complained of and mandamus is to

compel the body to reconsider the quarter decision and make another decision. NB: The
count must see if there are good reasons:

Condition upon which mandamus may be issued:-

Established in John Mwambeki’s case.
1 . The respondent (public body) must have a public duty to perform be established
by a statute
2. The duty imposed should not be just one owned absolutely to the state or public
authority but also individuals invested with public duty.
3. The duty must be of imperative nature and not a discretionary one.
4. The applicant must have first demanded performance before applying for
mandamus.
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5. The application must be made in good faith by the applicant who has sufficient
interest in the matter.
6. There should be no any ether appropriate remedy available to the applicant.
7. The order sought must be capable of enforcement.

Note that: Prerogative orders cannot be issued against the state (president prime min,
but to servants of the state duties). Mandamus cannot be issued against the state
(president)

3. INJUCTION & DECLARATION.

They are private law remedies which are also relevant to public law remedies an
injunction is an order of the court by which a person against whom it is made is required
to refrain from doing an act by contrast with prohibition, Injunction orders seeks to
restrain wrongful acts which are purely private and not public in na…Breach of contract.

TYPES OF INJUCTIONS.
i. Prohibitory injunction
ii. Mandatory injunction

Principally injunction is a negative remedy and in administrative law it is granted when

an administrative authority does or purports to do anything ultra vires. But in some
cases the remedy be positive in nature and an administrative may be ordered to do a
particular act which it is bound to do (mandatory prohibition). That you are compelled
to do that you are unapprised to do and compelled not to do mandatory injunctions are
rare in public law why rarely used.

There are several procedures to enforce the performance of a public duty in the public
remedy of mandamus. An injunction is not issued as a matter of right it is discretional
but the discretion not be exercised judiciously.

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Plaintiff must be an aggrieved person. Since injunction in an equitable relief it may not
be granted if the conduct of the plaintiff disentitles him from the assistance of the court
or if some alternation remedy is available.

But if there is any violation of provision of law the court will not hesitate to take the
drastic step of issuing on order of injunction and they will not be deterred it will bring
the machinery of the government it will stand still.

For Example in Bradbury vs London Borough Council (1967)3 AIIER 434 A

local authority’s scheme was setting up comprehensive school was held to be illegal
since no public notice had been given to object as required by the relevant statute.
It was contented by the authorities that of the injunction would be granted there would
be administrative chaos.

Lord Denning MR stated,

“If local authority does not fulfill the requirement of the law, this
court will see that it does fulfill them it will not listen to suggestion
of chaos. the Council are subjected to the rule of law and must
company with it just like anyone else even if chaos should result still
law must be obeyed.”

DECLARATION

In a declaration action the rights of the parties are declared to the rights of the parties
without giving any further relief.

The essence of declarations orders in that it states the rights or legal position of the
parties and ends there without altering them in any way though it may be supplemented
with other remedies in suitable places eg. The defendant is liable.

The public authority was wrong.

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The distinction between a declaratory order and other judicial orders is in the fact that
the later is enforceable the former is not.

Oftenly, a declaration cannot be obtained without pray for consequential of relief that
the plaintiff is required to claim the reliefs the reason behind is to avoid multiplicity of
proceedings.

EXCLUSIONARY/OUSTER CLAUSES

They are also called Ouster Clauses. These are statutory provisions excluding application
for judicial review in courts of law. Most of these Acts of parliament frequently contains
some provisions which aim at restricting and sometimes eliminating judicial review.
The common phrases used in the Acts of parliament are:
a) Final and conclusive
b) Shall not be questioned many court of law
c) Where the Minister is satisfied or
d) Judge proof clauses

The normal effect of such clauses is to prevent appeals. There can be appeal unless it is
given by statute. If unchecked the effect of exclusionary clause is to give uncontrollable
powers to administrative authorities and tribunals. It is an indication of district is
judiciary by the executive

For example
“Any done by the commissioner or any other such officer outside the
provisions of this Act shall be regarded as if it was done under his powers
conferred under this Act”

Attitude of courts on Exclusionary clause (Response)

This aim of exclusionary clauses is to prevent appeal and thus weaken the powers of the
court.
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Statutory restriction on judicial remedies is given the narrow construction sometimes

even against the plain meaning of the word. For instance if the statute says:
“The decision or order shall be final and conclusive” this is held to mean no further
appeals, but judicial control of legality explain the characteristics of judicial attitudes on
exclusionary clauses

R vs Medical Appeals Tribunal exp Gilmore (1957)1QB 574

Lord Denning

I find it well settled that the remedy of certiorari is never to be taken away
any statute, except by the most clear and explicit words”

Lord Atkin
“Finality is a good thing, but justice better”

Thus exclusionary words are subject to judicial review.

Anisminic Ltd vs. Foregn Compensation Commission (1969) AII

In this case the crucial words for interpretation were the provision of the foreign
compensation Act 1950, that

A determination by a tribunal shall not be called into question in any court of law

The object of the outer clause under the said Act was to keep the distribution of
compensation outside the court all together as it was anticipated that proved claims
would exceed the available compensation

Holding by House of Lords

“An outer clause will not protect a determination which was outside
jurisdiction”
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Lord Reid
Such a provision protects every determination which is not a nullily,
but I do not think it is necessary or even reasonable to construe the
word “determination as including everything that purports to be a
determination at all”

Lord Denning
Exclusionary clauses are not of facts but not of law

In Minister for Civil Services (1984) 2AIIER 835 Lord Diploc classified three
grounds upon which administrative actions are subject to judicial review
1) Where there is illegality
2) Where there is irrationality or unreasonable, illogical decision
3) Where there is procedural impropriate
-improper procedures
The courts under grounds above will intervene exclusionary clauses

Ouster/exclusionary clauses in Tanzania

There are number of cases or authorities in Tanzania evidencing that the courts apply
strict construction to exclusionary clauses

In Mtenga v. UDSM (1971) HCD 274 the late Biron J was confronted by Section
27(i) of permanent labour Tribunal Act 1967 which reads:-
Every award and decision of the tribunal shall not be liable to be challenged
questioned, previewed or called in question in any court save on grounds of lack
of jurisdiction.

His lordship was of the view that;

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The jurisdiction of the court was not oustered as the permanent labour Tribunal
had just given an advice under S.10 of the Act; it didn’t give any award or decision
in accordance with the statute.
He further said
The legislative may and often does ouster the jurisdiction of the court in certain
matters. But for the court to find that the legislative has oustered its jurisdiction,
the legislature must so state in no uncertainty and in most unequivocal terms.

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LEGISLATIVE POWER OF THE ADMINISTRATION

It is a rule of law that the power to enact law is essentially vested in the Parliament.
However condition in the modern sates and society has necessitated the making of
enactment by bodies other than the parliament. These other law makers consist in the
main of the Administrative bodies like Ministers, public cooperation, local government
authorities and numerous other institution vested with some powers for the discharge of
public functions.

The laws enacted by these bodies are referred to as subsidiary legislation because they
are subsidiary to the legislation enacted by the parliament and in case of conflict
between the subsidiary legislation and principle legislation the later prevails. For the
same reason these subsidiary legislation are also referred to as subordinate legislation as
indeed they are subordinate to the laws enacted by the parliament.

Subsidiary legislation is also or commonly known as delegated legislation because its

makers get the power to make such sub-legislation by the way of delegation from the
parliament.

Subsidiary legislation once properly made will have the force of law commanding the
obedience of every subject and from party of the body of the statutes or laws enforce in
the country. On the face of it the making of sub-leg making is the exclusive function of
the parliament. However, the parliament does not give out that power out of it, it merely
delegates its powers to these bodies. Therefore, delegation does not derogate anything
from law making power from the parliament and does not there by give out absolute
powers to administrative bodies to make laws on their own. Because any subsidiary
legislation before coming into force must first consented by the parliament. And such
powers to make sub- leg must come out of the Act of parliament and not from any other
person or body.

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Justification or rationale for subsidiary legislation

One of the common ground advanced to resort to subsidiary legislation is that of

shortage of parliament time. It does not have such much time unlike in other
countries where parliamentary sessions or continuous. In Tanzania parliament meets
four times in a year with the longest session the budget session which last for no more
that 10 weeks. Over whole the parliament meets for about 18 weeks in a year. During
this time the parliament has to deal with numerous issues besides legislating, the time is
not enough for the parliament to deal with every detail of every subject requiring to be
covered by legislation.

Even in countries where parliament’s session are continuous yet time is far from
sufficient. Subsidiary legislation are inevitable because they allow parliament to discuss
and legislate only on the essential principles living the details and matters of procedure
to be dealt with by the ministers and other administrative bodies to which the
parliament delegates its law making powers.

The second reason is the technicality of the subject matter of legislation, the
coverage of legislation often concerns matters which are highly technical and requiring
specializing knowledge to understand them, eg. Radiation, marine science, shipping
industry, mineral oil, computer science, telecommunication, electronics, electric power
generation, aviation industry, taxation etc. all these are matter in respect in which laws
have to be en acted to control and regulate them in order to enact such laws you need law
makers who are very well vested with such knowledge regarding the subject matter.
Principally the parliament does not consist of such experts.

In fact literacy of Kiswahili or English is the only education requirement for one to be
member of the parliament. As such MPs are best only at discovery or identify the need,
aspirations and expectations of the people the represent. But not the detailed technical

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knowledge to solve the problems identified. Hence the MPs can only manage to deal
with general principles and broad objectives in legislation leaving the technical details to
be settled by the experts who are present in the ministries and who can be consulted by
the minister at any time.

The other reason is the need of flexibility. It is not possible for parliament to
foreseen and to provide for all contingency and varying local condition. Subsidiary
legislation makes it possible for variation to be made in the application of certain laws,
the variations may be affected by subsidiary leg to sweet particular circumstances which
the parliament could not have foreseen at the time enacting the law in question. It is
better therefore to leave it the local authorities of the respective areas to impose by sub-
leg what restrictions that appear sweet able to their local conditions and circumstances
as such local variations that may be necessary in any law can be taken care to
accommodate changing circumstances without having to refer everything to the
parliament.

For example Section 132 (i) of the local Government District Authorities Act No 7 of
1982 R.E 2002, The minister is empowered to supplement, revoke, vary or amend the
list of functions of the Township authorities contained in the 2nd schedule to the Act.
The last reason for sub-leg is on the case of emergence situations as a state of war. An
emergency situation may often require some immediate legislative action while on the
other hand the parliament may provide for alternative by enacting a general law that
allows the executive to make some sub-leg to cover the emergency situation. In Tanzania
we have The Emergency Power Act 1986 Act No. 1 R.E 2002 this law is for that purpose.

The negative aspects of subsidiary legislation

Ø Whereas the doctrine of separation of powers enables each of the three different
organs to act as a check against the possible abuse of power by the sub-leg
contains salutary doctrine of separation of powers. A sub-leg is made by bodies
which are inevitably parties of the executive their advantage of having a checking
mechanism against the abuse, is in this case removed, as the executive arm
becomes also a law maker.
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Ø Another problem is that some of the sub-law makers are free from popular
accountability which the ministers are in turn subject to the control by the
parliament under the operation of the principal of ministerial responsibility.

In practice many statutory bodies and cooperation are importance to make sub-leg
without being subjected to may effective demographic control in the exercise of that
power. The control by the minister is more theoretical than practical, is rather too
remote and provides no sufficient guarantees against abuse by the various bodies
making sub-legislation.

Judicial Control of Subsidiary legislation

The court have devised various rules in controlling subsidiary leg in order to insure that
it keeps within boundaries and whenever sub-leg does not comply with such rules it will
be declared invalid with no effect.

One of the rules is the ULTRS VIRES RULE. It is of the effect that the statute must
authorize any sub-leg. The underline principal in ultra vires is that where the executive
have been allowed by the legislative to make law it must abide strictly by the terms of its
delegated authority. Usually the Act of the parliament authorizing sub-leg will also
prescribe the procedure to be followed in making a subsidiary legislation. In such a case
the prescribed procedure must be observed strictly. Otherwise the sub-leg will be held
Ultra vires and hence invalid. In the same way sub-leg should not exceed the powers
conferred by an Act of parliament. Hence there is Substantive Ultra Vires and
procedural Ultra Vires.

a) Substantive ultra vires: occurs where the sub-leg makes a provision which is
not authorized to make by an Act of parliament e.g where the Act of parliament
provides for the Act of regulation of certain Activities-A sub-leg cannot make it
abolished or restricted as this will be Ultra vires the Parent Act

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b) Procedural Ultra vires: It occurs where the Act of parliament provides for
certain procedure to be followed in making a sub-leg the prescribed procedure
must be followed otherwise the said sub-leg will invalid for fail to comply with the
said procedures. This is referred to as procedural ultra vires. The courts however
after draw a distinction between the mandatory procedures where as failure to
comply salting to invalidity exercising of the powers and directly procedure where
invalidly does not follow as a necessary consequence as fail to comply.

In R Vs WAKISO (1955) ULR 137 the accused was charged with 6 counts for
violating certain provisions of Ugandan employment rules. The said rules where made
under the Uganda Ordinance Cap 83. A provision of S. 80 of the said ordnance went
thus “provided that rules made under paragraph 1,2,3,4 and 15 shall be laid before the
legislative council and shall not come into operation until they have been approved
either with or without modification by a resolution passed by the legislation council”.
The instrument creating the said rules read “made at Entebbe this 21st of May 1946 and
approved by a resolution passed by the legislative council on 30th April 1946”.

The court held that rules were procedural Ultra Virus the Act of the Parliament ( the
Uganda Employment Ordinance Cap 83).

Unreasonableness:-
The reasonable man is final analysis is the “court”. The court may also invalidate the
piece of legislation on the ground of unreasonableness in interpreting statute. The
assumption is that, the parliament could not have intended the powers of the sub-leg
could be exercised unreasonably. This assumption is called to pay in care in local
authority by- law which they are empowered to make for a good rule and government of

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their area and suppression of nuinces. In the case of Nanalal Damodar Kanji Vs
Tanga Township Council (1940) LTR 239.

An accused owned a house which was situated at the corner of Akida a N.6 Street in the
township of Tanga on 12 June 1939 some old papers were found in the street outside
his house he pleaded not guilty to the charge under rule 25 of the Township rules which
said. “No person shall throw deposit in or upon any street dusty, refuse or noxious
matter any such accumulation being immediately in front of any house or noxious
matter any such accumulation being immediately in front of any house shall be prima –
facie evidence that the some has being there by the occupier of that house. The question
that the court was to determine was what the legal effect of rule 25 was.
The said rule was made under S. 3 of Township Ordinance that provided as follows:

“The Government may make rules to be published in the Gazette for health
order and good Governance of Townships and may apply all or such rules
to any Township or make special rules in regards to Particular Township”.

The Court hold “ Rules and by law – made under statutory powers enforceable by
penalties are contracted like other provisions encroaching the ordinary rights of the
persons they must have a pain of invalidity be notably unreasonable in the exercise of
the statutory power no repugnant to the statute or general principal of law”.

The principal of law, which the rule 25 offended against, is that an accused is pressured
innocent until he is proved guilty. Rule 25 seemed to invent the general principal of law
an accused is provided guilty until he proves his innocence. By providing that the mere
finding of refuse near the man’s house is prima facie evidence of guilty.

The Rule against Sub delegation:

Sub – leg has force of law and is binding if properly made, sub-leg not properly made
has no legal validity and not enforceable, hence the competence of the maker of sub-leg
is very fundamental one, where an administrative body is by delegation power to make
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sub- legal delegates or purports to delegate these powers delegation in known as sub
delegation and not enforceable.
The rule against sub delegation is exposed by the Latin maxim “Delegatus non potest
delegare” Meaning that a delegation is incompliant to further sub delegate.

Remitula Gulamali Vs R (1936) TLR.

The Governor was given power to make by laws under rule 11 of the cotton rules of 1934
for the destruction of cotton plants herb pests and diseases of cotton. This power was
exercised by a Director of Agriculture and Gazetted on 11th October 1935 as General
Notice No. 993. The accused subsequently contravened it and was fined to pay shs
300/= he appealed against conviction.

It was held that “the terms of paragraph two of Section 2 of the ordinance does not
extent to confer such powers up on the Director of Agriculture but the Governor alone
who is precluded from transferring this power by a principle of law expressed in Latin
maxim “The Director of Agriculture is the one who made orders and the Delegatus
non potest delegare” governor had such powers alone.

Exception to the general rule that a delegation cannot sub delegated however on account
of the legislative supremacy of the parliament an Act of the parliament may expressly
authorize sub delegation. In such a case delegation may be done and it will be lawful.

On the other hand the parliament has sometimes reinforced this principal by expressly
prohibit sub- delegation of the legislative powers. Thus furniture S. 171 (1) of Act No. 7 of
1982 R.E. 2002 (Local Government District Authorities Act) and S. 77 (1) of Act No. 8
1982 R.E. 2002 (Local Government District Urban Authorities Act) expressly prohibit
the minister for local Government from delegating his powers to make rule and
regulation. Another example is that of S. 4. (2) (B) of the Transfer and Delegation of
power to mak e subsidiary legislation.

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Hence out of all these a general principal that emerges is that Delegation is always
lawful, unless expressly prohibited and sub – delegation is always unlawful unless
expressly permitted by the parliament.

Rule against inconsistence.

Sub-leg has also to passé the threshold of consistence and where it is in consistent with
any statute the court will declare it declare it invalid on the ground of such inconsistence
S. 25 (D)of the Interpretation and General Clauses Act 1972, R.E 2002 provides that “No
order or rule shall be inconsistence with provision of any ordinance” Under S. 2 of this
legislation a sub-leg is defined as “ Any order of the president proclamation, rule of the
court, lawful, Notice by law or other instrument made under any ordinance or other
lawful authority and having legislative effect”.

The principal of inconsistence does not mean that Delegated legislation cannot deal with
same subject matter as a statute. Rather the principal applies where a sub-leg makes
lawful that which the statute makes unlawful or vise vase.

In Koinange Mbiu Vs R (1951) 24 (2) KLR 130 the accused an African was accused
of growing coffee in an unauthorized area S. 4 of the Crop Production and Livestock
Ordinance of Kenya allowed the Governor in Council to fix by name an area in the
colony to which rules for controlling crop production might apply. Rules 3 (1) of the
African Growing Coffee Rules made under the said statute provided by that “No Coffee
shall be grown by an African except in the plantation approved by director and situated
in one of the areas set in schedule A of these rules”. The main issue for determination
was whether this rule was a valid exercised of the power conferred under S. 4 of the
principal legislation.

The court that rule 3 was invalid because in the first case it was in conflict with another
statute namely the Coffee Industry Ordinance. Under the coffee Industry Ordinance any
person including an African could plant coffee once he obtains a license and he could
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plant coffee in Kenya except in the Native area (land) Rule 3 (1) was therefore in conflict
with this statute because it limited the area in which the African could grow coffee to the
plantation schedule a areas only.

Secondly Section. 4 of the Crop production and Crop Ordinance allowed the governor in
council to regulate areas where as Rule 3 went beyond this by regulating the area of
whole colony not just one area and further more by regulation a particular class of
persons particularly Africans rather than an area.

The rule against Uncertainty

Where the language of the Subsidiary Legislation is apparent Unclear or ambiguous the
court will declare it void. See for example in R Vs Louis Hermitte (1938) 18 ILR 55 in
which the appellant was convicted and fined under a bylaw made under S. 69 of the
Local Government (Municipality) Ordinance of 1928 of Kenya Reads “No person shall
create any disturbance so as to be an annoyance to residents or passengers”. It is
significant to note this by law- did not specify in what circumstance would full within
the meaning of the by-law.

On appeal it was contended that the By – law in Question was uncertain, Unreasonable
and Ultra vires the powers conferred an the Municipality and hence null and void.

Publicity and publication/ Consultation.

All form of sub-leg have to be published in the government gazette it is intended to

facilitate care access actual or presumed to the sub-leg by the public in general bearing
in mind that ignorance of law is no defiance on the violation of that law.

The requirement of publication being mandatory must be complied with, however some
Acts of Parliament expressed provided that it will not be necessary to publish in the
gazette made under those Acts. For such sub-leg the other use of publishing in the
gazette is with regard to the effective dates of the sub-leg. A peace of sub leg comes into
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force on the date it says itself it shall come into force for these the date they come into
force is the date when they are published in the Gazette in that case failure to publish in
the Gazette will keep the sub-leg in abeyance and not bring it into force as long as it
remains not published in the gazette.

In Case Mwangi Vs R (1950) 241 KLR 72 the Second accused were the proprietor of
an Africa barber salon and his assistant, they were charged and convicted of
overcharging in respect of service namely hair cutting contrary reregulation 11 sub-leg
(1) of the defence (control of prices) Regulation of 1945. An order which had been
published in the Gazette allowed hair dressers to charge 1 sh. For instance in 1949 G.N.
NO. 1 purported to have repealed past price orders in 1949 GN NO. 20 fixed lair cutting
price at 50 cents but non of the 1949’s notes orders were published in the Government
gazette.

Mwangi and his assistance were charged with a breach of order No. 20 of 1949. The
Issued was whether the price controller lawful amended, validly rescinded or revoked
an order, which he had published in the gazette by a subsequent order which he did not
published the court held that the 1949 orders were invalidly.
That the same medium used in the publication of the original must be used for its
amendments, variation or revocation.

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