Semester II

LW 221
 Administrative Tribunals, Commission of Inquiry and Regulatory
Authorities

Administrative Tribunal

o A tribunal is an Independent adjudicatory body which is normally set up by

statutes to deal with certain disputes. It is a body which hears disputes
relating to a specific area of law and expected to adjudicate on them.

o Tribunals handle a range of cases such as immigration, social security, taxes,

employment. Each tribunal is slightly different, but there are usually more
relax than court for example District Land and Housing tribunal has a lot of
procedure similar to court of law but ward tribunal do not follow
procedures like court of law.
 Cont…
o Durga Shankar Mehta V Raghuraj Singh AIR (1950) SC 188 (1950) SCR 459

The Supreme court defined tribunal to mean the adjudicating bodies constituted by
the state vested with judicial functions as distinguished from executive functions.

o Powers to adjudicate do not make any adjudicatory body a tribunal. Such powers
must emanate from the statute and not merely from mutual agreement between
two parties under disputes.

o For Example tribunals include Ward Tribunal established under the Ward Tribunals
Act, 1985 to deal with Civil matters, The District Land and Housing Tribunals
established under the Courts (Land Dispute Settlements) Act, 2002, Act No 2 of
2002.
 Legal Basis of Administrative Tribunals

oThe constitution is silent as to the delegation of judicial powers to the

other organs of the state however Article 13(6)(a) of the CURT and
Article 12(6)(a) of the Constitution of Zanzibar recognizes the
existence of tribunals.

oArticles require the court or other agency to take into account the
principle of fair hearing in deciding disputes thus one may argue that
the term “other agency” can be extended to include administrative
tribunals.
 Rationale of Having Administrative Tribunal
o Modern governmental activities give rise to many disputes which cannot be
solved by applying objective legal principles or standard. This has
necessitated the emergency of tribunals.

o A need to have bodies which can take preventive measures can effectively
enforce preventive measures taken by administrative authorities.

o Since administrative organs are also policy makers, then it is necessary to

have bodies which can easily enforce departmental policies and other
relevant factors. Hence administrative tribunals are one of such bodies
which can effectively enforce administrative policies.
 Cont…
o A need to have Institutions which have specialized jurisdiction, that is to
have adjudicatory bodies which shall be composed of a persons who are
experts in matters relating to the nature of disputes intended to be solved
by a particular body/ tribunal. In other words one can say that the Idea of
expertise is linked to the type of decision which tribunals are going to make.

o The ordinary court system has proved inadequate to be able to deal with
all the cases brought before it. There are many cases which are pending
before the court. It is therefore for tribunals to be the other centers of
adjudication to reduce number of cases which are instituted in ordinary
courts of law.
 Similarities between Tribunals and Courts
The two organs of administrative tribunals and courts have got or share some
common similarities which include:-

o That they derive their legality from various statutory Instructions and the
constitution of United Republic of Tanzania, 1977 as amended time to time.
Article 13(6)(a) of the constitution. And Article 12(6)(a) of the Constitution
of Zanzibar. recognizes tribunals, the said Articles require the court and
other agency to take into account the principle of fair hearing in deciding
disputes thus one may argue that the term “other agency” refers to
administrative tribunals.
 Cont…

o That both are adjudicatory bodies which deal with disputes between parties

and in so doing they determines the rights and liabilities of the parties in

disputes. This was stated in the case Associated Cement Co. Ltd v P.N

Sharm that the basic and the fundamental feature which is common to both
the courts and the tribunals is that they discharge judicial functions and

exercise judicial powers which inherently vest in a sovereign state

 Cont…
o That both are governed by the principles of neutrality and impartiality
while deciding the disputes before them. Although in some circumstances
administrative tribunal can be an interested party to disputes in which it is
adjudicating however in all such circumstances the duty to act judicially is
there for the purpose of ensuring that justice prevails. One thing to be
noted is that all tribunals are administrative.
 Cont…

o Prof. Wade states that the expression administrative tribunals is misleading

for various reason:-

That every tribunal is a result of an Act of Parliament and not by

Government.

That decision of such tribunals is judicial rather than administrative.

That not all tribunals’ deal with cases in which government is a party.

Those Tribunals are Independent bodies.

 Differences between Tribunals and Courts

o Courts of law form part of the traditional judicial system which is one of
the organs of the state while Tribunals are agencies, statutory bodies formed
to deal with specific matters which mainly fall under the executive arm of
the government.

o The jurisdiction of ordinary courts to determine civil suits extend to all suits
of civil nature expects where expressly barred by the law while tribunals
have jurisdiction on matters statutory conferred. However not all courts
have general jurisdiction. Some have been established under the labor
Institutions Act, 2004.
 Cont…
o Judicial personnel like judges in ordinary court are free from the
interference of the executive while administrative tribunals are entirely in
the hands of the government for instance in the case of Idd Mtengule v R
whereby it was observed that the court is independent from the executive.

o A court of law has power to determine the vires of the legislation while
administrative tribunals cannot this is because tribunal is a part of executive
hence they cannot challenge the executive while ordinary court are in
independent body they can easily challenge the executive body.
 Cont…
o Courts of law are led by trained personally in the field of law and these
person are judges, magistrates and advocates who appear before the court
of law while Tribunals do not necessarily require such composition of well
trained legal personnel for instance no person shall be entitled to be
nominated as member of tribunal if he is a legally qualified person or any
person who is employed as judicial under ward tribunal Act.

o Courts of law are strictly bound by rules of evidence and procedures while
Tribunals are not always bound by strict rules of evidence and procedures
unless where the statute that establishes a particular tribunal provide for the
same.
 Cont…

o Courts of law have powers to control the exercise of powers of the

tribunals through judicial Review, Revision and Appeal.
 Advantages of Administrative Tribunals
o Cheapness (Less expensive) because court of law follow strict application of
rules and procedures then it becomes hard for a layman to understand
therefore he is required to higher an advocate which can be expensive
while on the other hand the tribunals like the ward tribunal do not require
an advocate to represent the claimant.

o Accessibility (Much reliable), following the strict rules and procedures it

becomes difficult to access the court of law but tribunals are much reliable
because are known to people in specific area. Example one has to
determine the jurisdiction of the court of law before opening a case.
 Cont…
o Freedom from technicality ,the simplified rules at evidence and procedures
reduce legal costs and allow people to represent themselves.

o Expert knowledge of their particular subject (through specialism which

reduces the time needed and costs.

o They help reduce workload of the judiciary. The judiciary can be

overwhelmed with the work load of cases therefore the tribunals help the
courts of law to reduce these cases and deal with them basing on their
jurisdiction.
 Cont…
o They help reduce the workload of government departments. As the
government department can have a lot of workload then these
administrative tribunals will help the governmental departments to reduce
their workload.

o They remove ministerial such as political responsibility for sensitive decisions

which is good for the minster who may wish to avoid the mental work of
tribunal and undesired publicity further more ministers are not perceived as
having independence so the decision however intrinsically good is tainted
by their politics

o They allow flexibility since there is little use made of precedent

 Disadvantages of Administrative Tribunals
o They violate the principle of rule of law and natural justice, administrative
tribunal with their separate law and procedures often made by themselves
put a serious limitation on their concept of quality before law for
everybody and the supremacy of ordinary law. They also violate the theory
of separation of power because they also sometimes exercise administrative
as well as quasi judicial functions

o They cannot act in judicial spirit as they are staffed by administrator and
not by trained judges. In the case of some tribunals appeals to the court
against their decision even if it is not provided there is regarded as quiet
unfair. Example the Ward tribunal under section 5 of the ward tribunal Act.
 Cont…
o They do not follow uniform procedures and precedents this would lead to
arbitrary and inconsistent decision by the tribunals. Example the Ward
tribunal.

o Some tribunals are not obliged to give reason for their decision this could
cause some problem for aggrieved party

o No legal aid is available for a person appearing before tribunals and they
may therefore not be properly represented on the hearing.

o Some tribunals need private and the lack of the openness and transparent
can lead to suspicion about the fairness of the decision
 Cont…

o They are not always independent of the government there is possibility of a

political interference by the government preventing the tribunal from giving
an impartial decision.

o The investigation of fact of a case are of poor quality as strict rules of

evidence are not observed by tribunals.
 Practice and Procedures of Tribunals
oTribunals are not strictly bound to follow strict rules of evidence and
procedures, they are not required to adhere to technical rules of evidence,
therefore hearsay evidence, admissibility of document, the issue of burden of
proof etc can be decided depending on the circumstances of the disputes and
not relying on the strict rules of evidence.

• When deciding any matter before it, tribunals is expected to give reasons
for any decision made, giving reasons is considered to be one of the
cardinal principles of natural justice.
 Cont…
o This duty was emphasized in the case of M.P Industries v Union of India
The condition to give reason introduces clarity and excludes or at any rate
minimizes arbitrariness, it gives satisfaction to the party against whom the
order is made and it also enables an appellate or supervisory court to keep
the tribunals within bounds a reasoned order is a desirable condition of
judicial disposal.
 Ways to Challenge Decisions of Administrative Tribunals
The decision of Administrative tribunal can be challenged by the following
ways;

o By appeal; This is constitutional right which has to be exercised subject to

the statute that establishes a particular tribunal. Where the statutes provide
for a right to appeal against the decision made of the tribunal then such
right can be exercised where a person is aggrieved by the decision made by
the tribunal sometimes a statute may provide right to appeal not to the
ordinary court of law but to the higher public authority whose decision
shall be final and conclusive in other cases right to appeal is made to the
ordinary court of law.
 Cont…
o By revision; Decision made by tribunals can be revised by the higher
authority or ordinary courts of law upon application from the party who is
dissatisfied with the decision of a particular tribunal .sometimes the law
may grant supervisory power which gives mandate to court to call for the
records of proceedings of a particular tribunal and satisfy itself with the way
the decision was reached such reviser power can go to the extent of
reversing the decision which was made.
 Cont…
o By reference; Sometimes the tribunal on its own motion and where the law
provide for the same may refer its decision to the higher authority or
ordinary court of law so that the latter can satisfy itself on the way
proceedings were conducted or seek for the proper interpretation of the
law.
 Cont…
o By Judicial review; some statutes which establish administrative tribunals
grant them power to hear and give final decision on the matter brought
before them, in such circumstances they tend to oust the jurisdiction of
ordinary court to determine such particular matters by way of appeal.
Provision of law which oust the jurisdiction of courts are sometimes known
as finality clauses these are normally seen in two major ways.
 Cont…
That is where the statutes does not provide for right to appeal revision or
reference to any higher authority against the order passed by administrative
tribunal or authority
Where the statutes expressly provides that the decision made by
administrative tribunal or authority is final and conclusive, where the
jurisdiction of the ordinary court of law is ousted by the use of finality
clauses, then a person aggrieved can only have remedy by way of judicial
review.
This is the power vested on to the High court and appeal from it lies to the
court of Appeal of Tanzania.
 Cont…

The court can exercised this power where:-

The tribunals acted without jurisdiction

It failed to exercised its vested jurisdiction

Acted on bad faith (mala fide)

There is failure to observe rules of natural justice

There is an error of law on the face of records

The order made was ultravires the Act which establishes the particular
tribunal.
Cont…

The tribunal based its decision on irrelevant considerations

The decision made is not supported by any reasonable evidence

 Cont…

o Although some of the tribunals have been given power to give decisions
which are final and conclusive, yet such decision can be quashed by the
court where these tribunals exceed their jurisdiction. If at all individuals
would have no opportunity to challenge arbitrariness of some of the
decision of administrative tribunals.

o Then the fate of justice would be put into jeopardy by Lord, Dennings in R
v Medical Appeal Tribunal where he started “if tribunals were at liberty to
exceed their jurisdiction without any check by the courts , the rule of law
would be at an end’’
 Commission of Inquiries

o Inquiry is a process of making investigation into a certain matter in order to

assist administrative organ to make a well-informed decision.

o It is the act of finding or seeking information by questioning or

interrogating.

o It is common that for ministers to arrive at a decision on a certain matter

follow some formal procedures to enable those who will be affected by the
decision to make their views known.
 Cont…

o Commission of Inquiry is referred as one of many bodies available for the

government to inquire into various issues.

o Commission report findings, give advice and make recommendations.

While their findings are not legally binding they can be highly influential.

o Commissions of inquiry are independent of the government.

o They are a remarkably flexible. It is governmental process they provide a

unique channel through which interested parties can directly participate in
making public policy.
 Objectives of the CI

to consider social policy initiatives with a public impact,

to make adjustment to the institution structure of the government,

 to take a sensitive or moral issue out of the political arena in order to get
professional advice on it and build consensus on how to proceed.
 Types of Inquiries
o Statutory Inquiries; these are inquiries provided under various statutes for
the purpose of facilitating proper decision making.

For example, the Constitutional Review Commission established as per the

Constitutional Review Act of 2011 to collect public opinions for the
constitutional review. Tanzania Commission for Universities (TCU)
established in 2005 to oversee University education in Tanzania.
 Cont…
o Non- Statutory Inquiry; these are inquiries established when the need arise
in the society. If public authority considers it for public interest to conduct
an inquiry, then a commission is formed to investigate and collect necessary
information which shall form a report to be submitted to the authority
concerned. For example; Shivji commission was formed to inquiry into land
matters and published a report in 1992 and the proposed new Tanzania
Land Act.

Nyalali Commission was a presidential (Mwinyi) commission formed in Feb

1991 to collect the views of citizen and make appropriate recommendations
on whether the country should adopt a multiparty system or retain a mono-
party system.
 Cont…
Warioba commission was the presidential commission (Mkapa) against
Corruption (PCAC) in 1996, it was formed to carry out analytical studies on
corruption in the country, as a part of Tanzanian government strategy in
enhancing integrity and accountability. It completed its work on 17th
December 1996 after reviewing statutes, rules and procedures in
government and identifying loopholes for growth of corruption.

Kipenka commission was the presidential commission (Kikwete) to deal

with the matter of policemen arrested to kill 4 civilians alleged to be armed
robbers. It was ordered the arrest and prosecution of 15 policemen who
were involved.
 Procedures by Commission of Inquiry
It must ensure that there is a balance between the rights of individuals who
will be affected by the outcome of the process and the general public
interests.

Rules of natural justice have to be adhered in order to ensure a fair decision

making at the end. In the case of Bushel v Secretary of State for the
Environment [1981] AC 75 Lord Diplock stated that inquiries were to be
regarded as quite distinct from courts of law. However they must be
governed by a need to conduct themselves in such a way as to guarantee
fairness to those who would be affected by any decision that followed from
the proceedings.
Similarities between Administrative Tribunals and Inquiries
 Both can be subjected to supervisory powers/judicial review of the
ordinary courts of law. It entails that the court of law have power of
determining the way under which those two institutions performs its
function that have been given to them by the law. If they act in ultra vires,
their decision can be challenged by the court.

Both must follow the principle of natural justice during their proceedings.
They have duty to act fairly and within their powers.

The composition of both does not necessarily require persons who are
lawyers.

Both are not bound by strict rules of evidence and procedures.

 Differences between Administrative Tribunals and
Inquiries
o Tribunals find the facts and solve the dispute to mean that the main duty of
the tribunal is to solve disputes depending on the facts of the matter
brought before it. While Commission of inquiry makes inquiry and reports
to the authority that has established it. The main duty of inquiry is to make
an investigation about certain issue and to submit the report of an
investigation and submit to the authority.

o Decisions of Tribunals are binding to the parties to the case. The parties are
bound to follow the tribunal’s decision. While the decision of the
Commission are generally mere recommendations/advisory opinion.
 Cont…
o Tribunals are statutorily formed for example Ward Tribunal has been

established under Ward Tribunal Act of 1985 to deal with civil matters,

District Land and Housing Tribunals established under the courts (Land

dispute settlements) Act, 2002. While Inquiries are sometimes formed on

the discretion of a public authority not necessarily by the statute for

example Nyalali Commission formed in February in 1991 with the aim of

collecting views of the citizen and appropriate recommendation on

whether the country should adopt a multiparty or mono party system.

 Cont…
o Tribunals are permanent bodies to determine matters specified under the

law that establishes it. For example Ward Tribunal, the District Land and

Housing Tribunal. While most Inquiries are temporarily established

especially where there is a need and exist till when the report is handled

over to the authority concerned. for example of non statutory inquiry are

Warioba commission that was formed in 1966 to make inquiry against

corruption, Shivji commission that was formed in 1992 to set findings on

land matters.
 Regulatory Authorities
o Regulatory authority is a governmental body that is created by a legislature
to implement and enforce specific laws. They have three main function ie.
quasi legislative, executive and judicial functions.

o It can also be defined as a public authority or governmental Agency

responsible for exercising autonomous authorities over some area of human
activity in a regulatory or supervisory capacity.

o They exercise regulatory functions that are:-

 imposing requirements, restrictions and conditions,

setting standards in relation to any activity, and

 Cont…

securing compliance or enforcement.

oThey serve two main purposes in the government, which are; to

implement laws via making regulations and to enforce laws via
making investigations and decisions.
 Cont…
o There are regulatory authorities established in Tanzania including the
following:-

Energy and Water Utilities Authority (EWURA),

Surface and Marine Transport Regulatory Authority (SUMATRA)

Tanzania Communications Regulatory Authority (TCRA)

Tanzania Civil Aviation Authority (TCAA)

Social Security Regulatory Authority (SSRA)

 Cont…
Tanzania Insurance Regulatory Authority (TIRA)

Public Procurement Regulatory Authority (PPRA)

Tanzania Medical and Drugs Authority (TMDA)

 Topic Two: Control of Administrative Actions
Every power of administrative authorities are either guaranteed by the
Const or the Act of the Parliament and those powers are limited. The
limitation may be in terms of what may be done, the purpose of which
they can be used and the procedures to be followed while exercising
certain power.

Therefore the authority exercising the power has the duty to abide by
the prescriptions of the law. Going against the prescriptions of the law is
unlawful and such render the act done and the decision of the authority
ultra vires and, for such reason, invalid in the eyes of the law.
 Ways to Control Administrative Actions

o There are several ways to control the administrative actions including:-

• Judicial control

Appeal

Revision

Review

Judicial Review
 Cont…
• Extra judicial control

political/parliamentary control,

press/media control,

public opinion and

internal administrative control.

 Judicial Control

It is a power of the court to review acts and decisions of administrative

bodies.
 it is the power of the HC to review the validity or legality of the acts,
omissions and decisions of adm authorities.
 Appeal
Appeal means that one of the parties is requesting that the decision made
by the lower court be checked by the higher court.

 It is a legal proceeding by which a case is brought before a higher court or

tribunal for review of the decision of the lower court or tribunal. Read
article 13(6) of the CURT.

Appeal is a right of an aggrieved party in which rehearing is made on fact

and law. Eg. An appeal from the primary court to the District Magistrates

Court or the Ward Land Tribunal to the District Land and Housing Tribunal.
 Revision

o Revision is a new outlook towards a legal resolution. It is a supervisory or

discretionary in nature. Revisional power may be ordered by the court on
its own.

 It is the process of examination of an order of a lower court by a higher

court, so as to rectify any improper exercise of judicial power.

The precise purpose of revision is to examine the correctness or legality of

any proceedings before any inferior court.
 Review

Review is to be filed by an aggrieved party in the same court where the

order or decree is made. It is a reconsideration, second view or examination
by the same court of its earlier decision.
 Judicial Review
o Judicial review is a mechanism by which the judiciary brings to right and
redress the abuse of power and authorities committed by other organs of
the state and public officials.

o It is a challenge to the way in which a decision has been made rather than
the rights and wrongs of the conclusion reached.

o Judicial review is a specialized remedy in public law by which the High

Court exercises a supervisory jurisdiction over inferior courts, tribunals or
other public bodies.
 Cont…

It is not concerned with the merits of the decision but whether the public
body has acted lawfully.

o If the court finds that the decision was not a lawful decision, it may set
aside that decision. Normally, the court will then remit the decision back to
the original decision-maker to be made again.
 Nature and Scope of Judicial Review
o It is a public law remedy which enable a person aggrieved by the decision
of the administrative authority to challenge its legality. Or it enables an
aggrieved person to seek review of the court to determine the lawfulness of
their actions/decisions.
o It is a mechanism designed to check whether the decision of the
administrative agencies doesn’t trespass the limit defined by law. With this
regard, it can also be added that even when the administrative agencies act
within the power granted to them, courts can check whether there is
arbitrariness, unreasonableness or procedural impropriety in the decision as
part of their judicial review function.
 Cont…
o However, it’s good to note that the nature of judicial review doesn’t allow
courts to interfere in the agency task. In exercising their judicial review
power courts can’t entertain the merit of the decision or they can’t decide
whether a decision is right or wrong.
o They are also not allowed to step up and involve themselves in policy
decision making. They are also forbidden to determine what the law should
consists of or what is best for the nation in the exercise of their judicial
review power. Such limitation on judicial review boils down to one reason
that is the principle of separation of power, which entrusted such task to the
administrative agencies than the judiciary branch of the government.
 Cont…
o Trespass such limitations will make this organ to infringe its own power
boundary while it is expected to exercise its function of keeping the other
branches within their own.
o In addition, the courts can also end up in risking their legitimacy if they
keep trespass into the function reserved to the other branches of the
[Link], courts don’t have a say on decisions of this organ
which is wrong in substance but made by meeting the grounds provided by
law.
 Legal Basis for JR

The Constitution
Article 108(2) HC has general/unlimited jurisdiction
Article 13(6)(a) ‘any other legal remedy’ may include JR
Judicature and Application of Laws Act, Cap 453
Section 2(2) HC has been empowered to exercise jurisdiction in conformity
with the substance of common law, doctrine of equity and with the powers
vested in and according to the procedure and practice observed in England,
Civil Procedure Code
Section 95 inherent power of the HC
 Application of JR
Application of the leave through chamber summons –file on
exparte chamber application in the HC for the permission to file
an application for JR
Chamber summons must be supported by an affidavit-it must
state the grounds in support of the application.
The application must persuade the court that an applicant has a
locus standi.
 Cont...
JR must be applied within six months from when the action or
decision was made by the public authority. Section 19(3) of the
Law Reform {Fatal Accident & Misc. Provisions} Act,
 Basic conditions for Judicial Review
o Basic conditions for Judicial Review
An applicant must have locus standi
Applicant must apply for a leave of the court
Choose one or more grounds of review
Applicant should determine what remedies to seek
An application must be within time limits
There should be no any alternative remedy
The duty of the public authority must be mandatory
 Importance of Time Limit
o If you do want to seek judicial review of a decision, you must be very
careful to comply with any time limits.
o Even where it is possible under the statute to seek an extension of time, it
can be difficult to persuade a court to give you an extension, and you will
need to show a good reason for your delay in seeking the judicial review.
 Locus Standi
o If you wish to seek judicial review under a statutory procedure you may be
required to establish that you have “standing to sue” (although there is an
argument that if you are seeking one of the writs for jurisdictional error).
o Depending on the relevant legislation and the remedies sought, standing
may be accorded to “a person aggrieved”, “any interested person” or even
“any person”. If you are affected by a decision because you are the subject
of it, then you will probably have standing to sue.
o Standing is more of an issue if you are a “bystander” or a community group
with some sort of broad interest in the decision-making process (such as an
environmental protection group).
 Grounds For Judicial Review

o Judicial review is based on either substantive or procedural grounds.

Substantive grounds relate to the substance or content of the official
decision or action which is subject of review. Lord Diplock in Council of
Civil Service v. Minister for the Civil Service [1985] AC 374 stated three
major categories of the grounds for judicial review that is:-
 illegality
 irrationality and
procedural impropriety.
 Illegality
o This can further be subdivided into:-

Excess of jurisdiction-limits of the law is exceeded. That is ultra vires Case

of AG v. Fulham Corpn. (1921) 1CH 440 the corpn was empowered by the
law to establish wash houses for the residents of the city to have facility to
wash their clothes adequately. The corpn contracted to wash clothes. It was
held ultra vires the law.

Abuse of power-no power unless it is provided under the law. Any exercise
of the power which does not exist is ultra vires.
 Cont…
 In the case of Sydney Municipal Council v. Campbell (1925) AC 338 the
council had statutory power to acquire compulsorily land required for
carrying out improvement and remodelling any portion of the city. It was
restrained from using that power to acquire land for the purposes of
benefiting from an anticipated increase in the value of land.
Absence of power- Allingham v. Minister of Agriculture (1948)1 All E.R 780,
the minister had no power to issue directives on the use of land for
agricultural purpose. The minister could delegate that power to the
committee. The committee in turn left it to the executive officer to
determine. Court held that the committee had no power to sub-delegate
that power to executive officer
 Cont…
Unlawful delegation- law requires only those bodies entrusted with power
should exercise and they can delegate only if it has been expressly provided.
Otherwise, such delegation can be challenged to be as ultra vires.
Error of law on the face of records- where the authority reached its decision
basing on improper position of the law, that decision can be challenged.
Pelliry v. Tower Halmets Council (1973) QB 9 the council wrongly believed
to have power to deal with trading licence applications. The court quashed
a licence which the council had granted to a new comer to the market.
Improper motive/purpose-where the authority exercise in good faith but
not for the intended purpose in the statute.
 Irrationality

o This can further be subdivided into:-

Failure to exercise discretion- where the authority with discretion act
without due care and caution or sense of responsibility.
Unreasonableness- discretion does not directs a man to do what he likes. If
the authority fail to act without reason, ascertain and follow the course
which reason directs.
Irrelevant consideration-where the authority takes into consideration
irrelevant consideration such exercise of the power will be ultra vires.
 Cont…
Bad faith/mala fide- where the authority exercise the power maliciously out
of personal animosity.
Fettering discretion- where the authority exercise power without
considering an individual case, but impose/adopt fixed rules of policy.
Acting under dictation-where the authority surrender its power under the
influence of another authority.
 Procedural Impropriety
oThis can further be subdivided into:-
Failure to follow statutory procedures
Breach of rules of natural justice
 Remedies under Judicial Review
o There are prerogative orders of habeas corpus, certiorari, prohibition and
mandamus. In addition, there are declaration and the injunction. The Law
Reform [Fatal Accidents & Misc Provisions] Act, 1968 Cap 310 R.E 2002.
Section 17 of the Act abolition prerogative writs, and replaced with orders.
This was done to make such remedies flexible to meet the determined.
o Therefore, remedies include prerogative orders and equitable remedies.
Prerogative orders include:-
 Cont…
Habeas Corpus
Prohibition
Certiorari
Mandamus
oEquitable Remedies are:-
Declaration
Injunction
 Habeas Corpus
o It is one of the most ancient writ known in the common law of England. It
is a Latin phrase which means have the body. In the case of Sheikh
Mohamed Nassor Abdulla v. The RPC, Dsm and 2 Others [1985]TLR 1 (HC)
it was stated that the prerogative writ is directed to a person who detains
another in custody and commands him to produce or have the body of that
person before the court for a specified purpose.
o This writ was formerly used to test the legality of the imprisonment for
political reasons. R v. Home Secretary [1941]3ALL ER 104 stated that the
question for habeas corpus court is whether the subject is lawfully detained.
If he is the writ cannot be issued and if it is not, it must be issued.
 Prohibition
o Prohibition is issued when the matter has not been disposed of but is being
considered by the body concerned. The function of prohibition is to
prohibit the body concerned from proceeding with the matter further.
o It is issued to prevent the authority from continuing with an unfair
procedure and to enable it to tackle the problem afresh and to arrive at a
conclusion after hearing the interested parties.
 Certiorari
o Certiorari is to quash a decision already made and so it is issued when the
body in question already has disposed of the matter and rendered a
decision.
o It has to be noted, that in quashing decision the court does not substitute its
own decision and it does not direct the body as to what decision it should
make when reconsidering the matter.
o However, the decision of the body after reconsidering the matter will be
reached in the light of the court’s ruling. This means that if a decision
quashed for procedural error, the correct procedure as indicated by the
court must be followed when the matter is considered afresh.
 Mandamus
oIt means command. It is an order of the HC issued against a
public authority compelling it to perform a public duty imposed
upon it by the const or any other law. Failure to obey it may
lead to proceedings for contempt of court. In addition or in lieu
the court may direct that the act be done by someone else at the
cost of the defaulter. It is a powerful weapon in the hands of the
court whereby a citizen with sufficient legal interest may apply
to the H.C to compel the public officer to perform a public duty
entrusted to him.
 Cont…
o Mwanza Restaurant and Catering Association v. Mwanza Municipal
Director Mwalusanya J gave out five conditions that need to be proved by
the applicant so that the court may issue an order of mandamus;
The applicant must have demanded performance and the respondent must
have refused to perform
The respondent as a public officer must have a public duty to perform
imposed by the statute or any other law but it should not be duty owed
solely to the state, but should be a duty owed as well to the individual
citizen.
The public duty imposed should be of an imperative nature and not a
discretionary one.
 Cont…
The applicant must have a locus stand that is he must have sufficient interest
in the matter
There should be no other appropriate remedy available or rather better still
the court should feel disposed to exercise its discretion in favour of the
applicant
o Mandamus is often used as an adjunct to certiorari. If a tribunal or
administrative authority acts in a matter where it has no power to act at all.
If the authority has power to act but the power is abused, certiorari will
quash and mandamus may be issued simultaneously to require a proper
rehearing.
 Injunction
oIt is a judicial remedy by which a person is ordered to refrain
from doing or to do a particular act or thing injunction is
primarily private law remedy but is used also in the area of
public law to prevent the administrative from breaking the law.
oFor a person to obtain an injunction against an administrative
body he must show not only that the act complained of is ultra
vires but also that there is some damage or injury which he as an
individual stands to suffer if the unlawful act is not stopped.
 Cont…
o Before the court may grant temporary or interim injunction must proof the
existence of three conditions; Atilio v. Mbowe (1969) HCD 284 the court
pointed out the conditions for grant of injunction, these are;
Making out a prima-facie case the existence of a serious triable issues on the
basis of fact alleged by the applicant, which is capable of giving relief to the
party
Existence of the possibility that the applicant requesting the order will suffer
irreparable loss or damage if temporary order will not be issued.
On a balance of probability the applicant will suffer more if order is not
given that the respondent if the order is given.
 Declaration Order
oThis is an order declaring the applicant’s rights against a public
authority. Once the order is obtained the public authority may
become liable in damage or otherwise if it continues to infringe
or prejudice those rights.
oThe order does not itself quash nor prohibit as other remedies
do, it merely declares the legal position as regards the rights the
rights and entitlements claimed to exist.
 Cont…
oThe rationale behind such a judgment is that coercion is not
always necessary for obeying a verdict of a court and often the
parties would obey the law without any sanction.
 Extra Judicial Control of Administrative Actions
o Include the following

political/parliamentary control,

press/media control,

public opinion and

internal administrative control).

 Political Control

o It is concerned with questions of policy and the responsibility of the

executive for administration and expenditure.
o Administrative law does not include the control of policy by ministers or
head of state, something which is central in a political form of control.
o It can be of the following categories
Parliamentary control
Control by Public opinion
Control by Press or media
Internal administrative control
 Parliamentary Control
o Parliament has been empowered to control the workings/actions of the
government as per art. 63(2) of the CURT. It controls by receiving various
reports from the govt, deliberate on them and where necessary questions
the govt on anything that might be arising from the implementation of the
govt duties.
o This kind of control can be understood through the doctrine of ministerial
responsibility which entails that ministers are responsible collectively and
individually for their actions in their official capacities. Read art. 53 and 54
of the CURT. In the parliament all ministers represent the govt and they are
all responsible to answer all questions put against the govt by the members
of the parliament.
 Cont…
o Ministers work as a team to defend the actions of the govt especially where
those actions are challenged in the parliament. As well the argument raised
by one minister in the parliament must be supported by all other ministers.
o All ministers are required to implement the resolution passed by the
cabinet, the minority must follow the majority decision otherwise he or she
should resign eg. Mrema in 1995
o Each minister is individually responsible for the actions done under his
ministry.
 Doctrine of Ministerial Responsibility
o This doctrine explains how ministers are collectively and individually held
responsible for the actions done on their official capacities.
In the parliament, all ministers represent the government and they are
responsible to answer all such questions put against them by members of
the parliament.
An argument raised by one minister must be supported by other ministers.
They work as one team in defending actions taken by the government and
where such actions are challenged in the parliament.
o Ministerial responsibility is found in two levels that is:-
Collective ministerial responsibility
Individual ministerial responsibility
 Collective Ministerial Responsibility
o All ministers are responsible:-
 To defend any action taken by the government and which reflects the
image of the government at large.
In implementing any resolution passed by the cabinet.
o If there is no mutual agreement on any matter raised in the cabinet, then all
ministers will have to vote and the majority decision shall form the stand of
the government.
Those ministers who were not in agreement will be supposed to take the
stand of the majority otherwise one will have to resign from the
government. Eg. Augustino Lyatonga Mrema in 1995
 Cont...

oArticle 54 of the CURT, the chairman of the cabinet is the

President and members includes the vice-president, prime
minister, president of Zanzibar, and all ministers.
oArticle 53(2) establishes the doctrine of ministerial responsibility
particularly on collective responsibility.
 Individual Ministerial responsibility
oMinister is individually responsible in respect of such actions
arose under his ministry.
If there is any act taken by officials under a certain ministry, then
the minister concerned shall be held responsible by the
parliament for such act.
Where the minister fails to persuade the parliament on the
actions taken by his ministry in preventing any particular loss to
happen, then the minister will be forced to resign from his office.
 Cont...
For example; Ministers resigned due to pressure from the
parliament are Prof. Simon Mbilinyi, Kigoma Ally and Iddi Simba
Shortcomings of the Doctrine of Ministerial Responsibility
The doctrine presumes that the minister knows each and
everything within his ministry while not.
The President appoints ministers among the MPs and so weakens
their size of those who remain to question the government.
Multiparty may be fruitful in making the govt accountable to the
parliament but where most members are from the ruling party
will tend to defend the govt against the opposition party.
 Cont...
The fact that the minister has failed to perform his duties
effectively in one ministry does not bar the president from
appointing him to head another ministry.
 Press Control
o Journalists say that there are four organs of the state that is the traditional
organs of the state and the press. However, the later is not recognized by
the state.
o In fact press has a major role in improving the workings of administrative
agencies to ensure liberty of the subjects. But where it is possible for the
government to guard the press or impose unreasonable condemnation on
the press the liberty of the subjects of press is meaningless.
o By use of press, adm agencies are sometimes engaged in self examination
and readjustment to the needs of the public and some cases may lead to a
change in legislations.
 Public Opinion

o It may take various forms that is anonymous letters to the public official
concerned or to his head and media or any organ of the government if the
matter which need to change in public administration is of wide spread in
nature, or it is of great importance, sometimes by way of strike
 Internal Administrative Control

oIt is the way to control the acts or omissions and decisions of the
lower administrative authorities by reporting to the higher
authorities orally or documentary.
oThis way of controlling the actions of adm authorities has been
widely used in recent years during public assembly with the head
of the state, ministers, regional commissioners and district
commissioners.
 Topic 3: Ombudsman’s Office and HRs Commission
o Ombudsman means a delegate, agent, officer or commissioner. According
to oxford Concise Dictionary it is defined to mean an official appointed to
investigate individual complaints against maladministration, especially that
of public authorities.
o Generally it means an institution of the govt charged primarily with the
function of safeguarding citizens against abuse or misuse of administrative
powers by the executive. It is a body that inquires on any allegations of
maladministration and recommends on the appropriate steps to be
undertaken.
 Origin
o This institution developed at the first time in 1809 in Sweden and came to
be accepted in other countries worldwide. It was developed generally to
serve for the following purpose.
To make inquiry into complaints made by the citizens against abuse of
discretionary powers
To investigate on acts of maladministration or inefficiency in administration.
To recommend to appropriate authorities on necessary steps to be taken.
The person who alleges to this institution is not supposed to lead it on
investigation rather will leave the body to inquire and establish whether the
allegations are correct or not.
 Development
o After independence there was a single party system which had a very strong
voice in all political matters including the way government run its activities
(supremacy of the party) was attracting the danger of abusing the powers
by administrative officers as a result the presidential commission was
formed in 1964 to inquire on certain policies. Up on completion, it was
recommended the establishment of the permanent commission of Enquiry.

o On 22nd july 1965 when the interim const came into force contained the
separate chapter (6) on the PCE. As well the CURT of 1977 included the
PCE under art. 129 this was the ombudsman in Tanzania charged with the
powers to inquire on an maladministration affecting citizens.
 CHRGG/ Commission
o The 13th constitutional amendment of 2000 introduced and established the
commission and repealed the PCE. Those changes led to the enactment of
the CHRGG Act, 2001 which also repealed the PCE Act, 1966. The Act
provides for the functions, powers, privileges and other matters of the
CHRGG. It plays a role similar to that of an ombudsman in other
jurisdictions. However, unlike the later, the commission’s role is of two fold.

Handling complaints on maladministration

It receives allegations and complaints on violation of human rights in

Tanzania
 Functions
o Composition, functions and powers are provided under art. 129 and 130 of
the CURT. Also the Act provides of those issues ss. 6, 13, 14, 15 and 17.
Among others its functions include;
To receive allegations and complaints in the violation of human rights
To investigate or inquire into complaints concerning practices or actions by
persons holding office in the service of the govt, public authorities or other
public bodies including private institutions and private individuals where
those complaints allege abuse of power, injustice, unfair treatment of any
person.
 Restrictions
o Both the CURT and the CHRGG Act prohibit the commission from
investigating the following;-
A matter which is pending before the court or other judicial tribunal
A matter involving the relations or dealings between the govt and any
foreign state or an international organization
A matter relating to the prerogative mercy
A matter which the president directs otherwise.
 Successes
 It has raised awareness of the general public with regard to its functions
and powers vested on it and how the citizens can enjoy its services.
It has investigated some of the complaints of the citizens and it has
recommended on the necessary measures to be undertaken.
It has resolved the disputes in its jurisdiction in zbar and currently there is
an office of the commission there.
 Weaknesses
Like the PCE, the CHRGG depends on the way the president would exercise
his powers against its operation.
The restrictions boils away its powers to intervene in some of the issues
which may be of public importance.
Reports of the commission are sent to the NA through the minister and this
may influence the content which is to be tabled.
It is generally an advisory body since it cannot enforce its own
recommendations unless it does so through the court
 Differences btn PCE and CHRGG
The former had no power to institute proceedings in court and seek
appropriate remedy while the CHRGG has that power
The PCE appointment procedures relied on the president powers but in the
later the president has to make consultation with the appointment
committee.
 PCE was formed at the era with no bill of rights in the Const and the state
was under single party system which hindered its effective operation while
the CHRGG is operation in the era which it can get information from
various political sources and human rights activists.
 Topic 4: Suits By /Against the Government

o Historical Background
o Legal Basis for Government Suits
o Central and Local Government liabilities
Legal Procedures for Government Suits
 Government Suits/Proceedings
o Government is a system of administration of a particular state or it refers to
the particular group of people who controls a state at a given time and the
manner in which their governing organizations are structured.
o Thus, governments are the means through which state power is employed.
States are served by a continuous succession of different governments
o Suits by or against govt in Tanzania are governed by the Government
Proceedings Act, 1967 [Act No. 16 of 1967]. It is the predecessor of the
colonial law called the Govt Suits Ord. 1921.
o At common law the state was protected against civil liabilities on the basis
of the latin maxim called Rex non potest peccare that means the king can
do no wrong.
 Cont...
o It is sometimes known as sovereign immunity arose from the English
monarchy which could not be liable for damage to its subjects as per
Steelman v. City of New Bern [1971] 279 N.C 589. Also in Russel v. Men of
Devo [1778]2 T.R 667 it was held that unincorporate town could not be
liable for damage caused by a defective bridge.
o Petition of right only was recognized under common law. This was limited
to contract and some property actions. However, with the expansion of
govt activities and increase of economic relations with private person lead
to the increase of wrongs committed by the govt servants. Then the use of
petition of right only proved inadequate since procedures were
conservative and complicated which lead to many complaints.
 Cont...
o Due to democratic struggle in 1920s there was a need to equate the govt
with other persons equally before the court of law.
o Changes were seen in England through the Crown Proceedings Act, 1947
which abolished the procedure of petition of rights and made it possible for
the govt to be sued in all civil wrongs.
o Apart from the Crown Proceedings Act, 1947 in England yet it was not easy
for one to sue govt in Tanganyika. After independence the govt inherited
the colonial law. However, in 1967 the govt through parliament enacted
the Government Proceedings Act, 1967 which came into force in 1974
through the amendment Act No. 40 of 1974.
 Cont…
o The 1974 amendment introduced the ministerial fiat/ minister’s consent to
any proceedings instituted against the govt. Section 2 of the amendment
repealed s. 6 of the Act, 1967 and replaced it with s. 6 which requires the
consent of the minister to sue the govt.
o Also s. 7 was repealed and replaced with the requirement that suits against
the govt must be instituted to the HC, while the govt can institute
proceedings against an individual in subordinate courts.
o Also in case there is counter claim s. 10 required the defendant to seek
minster’s consent under s. 6 and then the magistrate shall transfer such suit
to the HC for trial.
 Cont...
o This law received criticism from various scholars and human rights activists
on the following basis:-
It was absurd to give one party to the suit to agree on the proceedings
brought against him.
Requirement of consent brought procedural complications because
sometimes the minister could withhold the consent when he considers that
it will be to the detriment of the govt if the dispute reaches the court.
 Cont...
Requirement of consent infringed the constitutional right of all persons to
have access to the court (Art. 13(2) and 30(3)) by subjecting such right to
the minister’s consent. Read: Peter Ng’omango v. Gerson M.K Mwangwa
and AG [1993]TLR 77 and the case of Kukutia Ole Pumbun and Another
[Link] [1993]TLR 159 [CA]
o The position in Z’bar was different from Tz-Mainland. There was no
requirement of consent in Z’bar for one to sue the govt but he was required
to serve 60 days notice of intention before instituting the proceedings.
Within the notice plaintiff must state the nature of the claim and the place
where the claim arose.
 Cont...

o In the case of Himidi Mbaye v. The Brigade Comnder of Nyuki Brigade, HC

of Z’bar, Civil case no. 8 nof 1981 [Unreported] Msumi J stated that the
purpose of notice of intention to sue the govt was intended to make it
become aware of the nature of the claim which the plaint is claiming
against it and where possible to settle the matter outside the court.
o Following the Kukutia’s case the govt through the parliament amended the
GPA, 1967specifically s. 6 in 1994 which was repealed and replaced by the
following:-
 Cont...

That a person had to give 90 days of his intention to sue the govt.
That such notice must be served to the minister, dpt or officer concerned.
The copy of the claim must be served the AG.
o It also stated that in all suits against the govt, the proceedings should be
instituted against the AG and the copy of the plaint shall be sent to the
minister, dpt or officer alleged to have committed wrong. As well it
maintained that all suits should be instituted to the HC by filing it in the
registry to which the claim arose.
 Jurisdiction and Procedures
o Therefore, in Tanzania the govt can be sued like an individual person in the
court of law in action like tort and contract.
Suits must be instituted to the High court. The law provides under s. 6(4)
and 7 that the suits against the government have should be instituted in the
H.C only by the delivering the plaint in the registry of the H.C within the
area where the claim arose.
Ninety (90) days notice of intention to sue. Must state the basis of claim
and submitted to the government officials concerned and copy of claim be
sent to the AG as provided under s. 6 (2).
 Cont…
o The case of Aloys Lyenga v. Inspector General of Police and Another [1970]
HCD 120; [1977]TLR 101 in this case the court relying on defence, held that
the plaintiff failed to file notice of intention to sue government as required
by section 6 (2) of the GPA and that the suit was time barred (According to
para 6 of the 1st of the Limitation Act, 1971 requires tort suit to be filed
within 3years, but the plaintiff filed after 3 years passed). Read Muhimbili
case
AG has to be sued on behalf of the government, s. 10 Civil proceedings
against the government have to be instituted against the Attorney General is
a chief law officer of the government.
 Cont…
AG is the individual that represents the government in litigation and serves
as the principal advisor to government officials and agencies in legal
matters.
Enforcement of the court decree against the government (judgment and
execution), s. 15(1) provides that any law relating to the payment of interest
where the decree is for the payment of money and interest on costs shall
apply in the case of government as they do in the case of private persons.
Read sections 16, and 17 of the GPA.
 Local Government

o Local governments suits are governed by several legislations including:-

The Local Government (District Authorities) Act, [Cap 287 R.E 2002]
The Local Government (Urban Authorities) Act, [Cap 288 R.E 2002]
The Local Government Finances Act, [Cap 290 R.E 2002]
 Jurisdiction and Procedures under LG

Suits must be instituted in any court of competent jurisdiction. Berabera

Ujamaa Village v. Abubakari [1983] 219 in this case the appellant, an
Ujamaa village through its leaders, destroyed respondents growing crops on
his shamba. They were ordered to compensate the respondent for the
damages. They appealed against the order on the ground that the amount
of compensation awarded against them was excessive. The court held that;
it is a fundamental human right that no man shall be deprived of his
property without adequate compensation and Ujamaa village is liable for
actions of its officers.
 Cont…
Thirty days (30) notice of intention to sue local government. No suit shall
be commenced against the local government authority until one month at
least after written notice of intention to institute a suit has been served
upon the authority by the intending plaintiff. Read sections 190 (1) of Cap
287 and 106(1) of Cap 288.
Sue in the name of the local government Festo Balegele & 794 others v.
DSM City Council. In this case the court held that the respondent’s decision
to dispose refuse and waste at Kunduchi Mtongani was ultira vires the Local
Government (Urban Authorities) Act, 1982. Also, it was contrary to article
14 of the Constitution which guarantees the right to life and its protection
of the society.
 Cont…

o However, for the local government to be sued it must have legal

personality. Mbarika Ujamaa village v. Nyanda Malimi in this case Malimi
sued the village in tort of trespass. The village cattle destroyed Malimi’s
crops and he claimed damages/ compensation. The court held that by the
time the damage was done the village was not a legal corporate and
Malimi was supposed to sue individual persons because the village had not
attained incorporation.
 Cont…
Enforcement or execution of a court decree against the local authority.
Read the following:-
 sections 190 and 192 of Cap 287; 106 of Cap 288
 Sections 130(2) of Cap 287 and 70 of Cap 288
 Mpanda District Council v. Yekonia Ngiliye [1988] 178 [H.C]
 Kanti Printing Works v. Njombe District Council [1970] HCD 120
 Kanti Printing Works v. Tanga District Council [1970] HCD 253