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Remedies for judicial review

13-17 minutes

“The public law remedies of quashing order and

mandatory order are powerful weapons in the hands of
the court for challenging abuse of power and general
illegality of administrative actions. However the
remedies are not devoid of limitations.”

Evaluate the afore stated quotation.

OUTLINE

1.0.       INTRODUCTION

-          Historical background of the public law remedies

2.0.       MAIN BODY

2.1.       Meaning of quashing order

-          Its applicability

-          Grounds for issuing quashing order

-          Conditions to fulfilled in issuing quashing order

-          Its limitations

2.2.       Meaning of Mandatory order

-          Conditions of applying Mandatory order

-          Its limitations

3.0.       CONCLUSION

4.0.       BIBLIOGRAPHY

1.0.      INTRODUCTION

Judicial review is an important weapon in the hands of

Judges of this country by which an ordinary citizen can
challenge on oppressive administrative action. A Judicial
review by means of prerogative order is one of those
effective ways employed to challenge administrative
action[1]. Administrative law provides for control over
the administration, to prevent injustices to the
individuals. Remedies are given to the injustices, as the
term ‘Ubi Jus ibi remedium’ means whenever there is a
right there is a remedy[2]. Therefore in this work i'm
going to evaluate the public law remedies of quashing
and mandatory order and their limitations.

Public law remedies are also known as prerogative

remedies. These were remedies especially associated
with the crown. Under the Common Law the sovereign
was considered as the foundation of justice. The crown
used to exercise prerogative powers in the interest of
justice, so in England the rules of procedure on
prerogative  orders has been greatly changed by case-
law and some rules have been now embodied.

In Tanzania no rules of procedure have been made by

the Chief Justice as he is empowered so to do under
Section 18 (1)[3]. Thus, Tanzania is applying Common
Law principles developed and expounded from case
laws of England[4]. Prerogative orders include
Mandamus (Mandatory), Prohibition and Quashing
Orders.

2.0.      MAIN BODY

2.1, Quashing Order means to certify; this quashing

order formerly was known as ‘Certiorari’, is so named as
in its original Latin form it required the Judges of any
inferior court of record to certify the record of any matter
and to send it to the Superior Court to be examined. It is
an order issued by the High Court to an inferior court or
any authority exercising judicial or quasi-judicial
functions to investigate and decide the legality and
validity of the order passed by it. [5] It is mainly applied
to the decision of public bodies acting under statutory
authority and has the effects of invalidating the ultra
vires decision of the administrative body concerned.

On Quashing Order the court does not substitute its own

decisions. It simply invalidates the original decision
which may result in the matter back to the original to
consider afresh. However the decision of the body after
reconsidering the matter will be reached in the right of
the court so 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.

The objective of the remedy of quashing order is to keep

inferior courts and quasi-judicial authorities within the
limits of their jurisdiction and if they act in excess of
their jurisdiction their decisions can be quashed by
superior courts.

Quashing order may be issued on the following grounds;

·         Error of Jurisdiction; this happens when an inferior

court or tribunal act without jurisdiction or in excess of
its jurisdiction or failure to exercise Jurisdiction vested
in it by law.  In the case of      R vs. MINISTER OF
TRANSPORT[6] even though the Minister was not
empowered to revoke a license, he passed an order of
revocation of license. The order was quashed on the
ground that it was without jurisdiction and therefore ultra
vires. Also, in PATMAN GARMENTS INDUSTRIES LTD vs.
TANZANIA MANUFACTURING LTD, the issue was
whether the court had power to impugn the validity of
the order of the President to revoke a right of occupancy.
It was held inter alia that, “the courts have power to
review administrative action made with reference to
executive functions of the President under the Land
Ordinance if he has acted either improperly or mistakenly.”

·         Error apparent of fact of record; this happens when

an inferior court or tribunal takes into account irrelevant
consideration or refuse to admit admissible evidence.

·         Violation of natural justices; remedy of quashing

can be issued when there is violation of the principles of
natural justice.

Out of grounds also the following conditions must be

fulfilled as mentioned in the case of R vs. ELECTRICITY
COMMISSIONERS[7], it was stated that, whenever any
body of person having legal authority to determine
questions affecting the rights of subjects and having the
duty to act judicially, act in excess of their legal authority,
they are subject to the controlling jurisdiction of the
King’s Bench Division exercised in these writs.

From the above observation it becomes clear that a

remedy of quashing order can be issued in the following
conditions:

The judicial or quasi-judicial body must have legal

authority
It must have duty to act judicially
It must have acted in excess of its authority
Such authority must be an authority to determine
question affecting right of subject.[8]

Quashing order though challenge the abuse of power

and illegality of administrative action has its limitations;
if there are suitable alternative remedies like appeal and
where the applicant has a right of appeal from the
decision of the court, instead of quash the decision he
may be required to pursue his right to appeal.

Also if the conduct of applicant is unreasonable, if the

court thinks the conduct of the applicant is not sufficient
and there is no reason of doing so the court may refrain
from granting application. Further in deciding whether to
grant the order, court may take into account the effect of
doing so, if it will cause inconsistence or chaos in
quashing the decision, the court may deter from doing
so.

Also in the case of ABADIAH SALEH vs. DODOMA WINE

Co. Ltd[9] the court had this to say, “Certiorari being a
discretionary remedy for court to issue can not be issued
in a case where there is already a contractual relationship
or business nature”.

2.2, A mandatory which is also known as Mandamus, is

another weapon in the hands of the courts. It is an order
of the High Court which commands a public body to
perform a public duty imposed on it by the constitution
or by any other law. This is a judicial remedy which is in
the form of an order from superior court to inferior court
to do or forbid from doing some specific out of which
that body is obliged under the law to do or refrain from
doing. Mandamus as a prerogative order lies solely of
the discretion on the court thus, there must be
consideration which influence the court in deciding
whether to grant an order of mandamus or not.

Mandamus is the procedure whereby a citizen with

sufficient legal interest may apply to the High Court to
compel a public officer to perform a public duty
entrusted to him.

In the case of JOHN MWOMBEKI BYOMBALIRWA vs.

REGIONAL COMMISSIOER, KAGERA AND OTHERS[10],
Mwalusany, J., set out five conditions that need to be
proved so that the court may issue an order of
Mandamus, as provided hereunder;

The applicant must have demanded performance

and the respondent must have refused to perform.
The respondent as public officer must have public
duty to perform imposed by the statutes 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 duty must be of public interest).
The public duty must have been imposed on the
authority and the performance of that duty should be
im0pertive and not optional; if at its own discretion,
government makes a rule to grant clearance
allowance to its employees there is not legal duty
and the writ of mandatory can not be issued against
the government’s performance of that duty.
 Applicant must have a locus stendi that is, he must
have sufficient interest in the matter.
There should be not other appropriate remedy
available.

Furthermore, -+in the case of CALCUTA DISCOUNT CO.

vs. ITO[11], it was stated that remedy of mandamus can
be issued if the public authority invested with
discretionary power abuses such power or exceeds it or
act malafide.

Any person whose right has been infringed may apply for
the remedy of an application on behalf of the sound
institution. (must have legal interest).

As shown in the case of MWANZA RESTAURANT AND

CATERING ASSOCIATION vs. MWANZA MUNICIPAL
DIRECTOR[12], where the court held that, the decision of
the respondent could not prevail because of failure to
give the applicants an opportunity of being heard, abuse
of discretionary power and failure to follow statutory
provision hence application for mandamus.

Mandamus (mandatory) is limited not lie against the

president or the governor of a state for the exercise and
performance of powers and duties of his office or for
any act done or performed to be done by him in the
exercise and performance of the powers and duties; also
will not lie against the state legislative to prevent them
from considering enacting a law alleged to be violative
of constitution provision[13]. It will not lie against an
inferior or Ministerial Officer who is bound to obey the
orders of his superior. The remedy of Mandamus will not
be granted against one who is an inferior or Minister
Officer bound to obey the order of a competent authority
to compel him to do something which is part of his duty
in that capacity, it also does not lie against a private
individual or any incorporate body.

Despite the orders above, the quotation remains valuable

on the ground that, if the applicant satisfies the
mentioned conditions which must be fulfilled before the
court grants judicial remedies as was stipulated in the
case of JOHN MWOMBEKI vs. R.C & R.P.C – BUKOBA
(supra) specifically for the order of mandamus. On the
other hand for the order of certiorari to be granted the
conditions stipulated in the case of TANZANIA AIR
SERVICES LTD vs. MINISTER FOR LABOUR, ATTORNEY
GENERAL and THE COMMISSIONER FOR LABOUR[14], it
was held inter alia that, “Under common law there is no
general requirement that public authorities should give
reasons for their decisions but that position has been
under criticism, thus”, it was further stated that, “The
interests of justice call for the existence, in common law,
of a general rule requiring public authorities to give
reasons for their decisions”; hence, “under Section 2(2) of
the Judicature and Application of Laws Ordinance, Cap
453, the High Court has power to vary the common law to
make it suit local conditions;  the conditions of the people
of Tanzania make it a fundamental requirement of fairplay
and justice that parties should know at the end of the day
why a particular decision has been taken”. Therefore, the
court must be careful in granting order basing on the
principle that the aim of judicial review is to determine
the legality on the decision made by the lower court or
tribunal or public authority and not to substitute the
decision made by those bodies as it was made in the
case of SINAI MURUMBE vs. MUHERE CHACHA.[15]
3. CONCLUSION

The public law remedies also include prohibition

whereby is issued when the matter has not been
disposed of but is being considered by the body
concerned whereby its main function is to prohibit the
body concerned from the proceeding with the matter
further. We are on the view that, courts should not be too
eager in relinquishing the judicial review function simply
because they are called upon to exercise it in relation to
the weighty matter of state. It must act only on
reasonable circumstances as shown above.

BIBLIOGRAPHY

STATUTE:

The Tanzania Government of, The Law Reform [Fatal

Accident and Misc. Provision] Act of 2002, Government
Printers, Dar es Salaam.

BOOKS:

Bisimba, H and C.M. Peter (2005), Justice and Rule of

Law in Tanzania; Legal and Human Rights, Tanzania.

Thakker, C.K (1995), Lectures on Administrative Law,

Eastern Book Company, Lucknow.

Peter, L and G. Anthony (2005), Administrative Law, 5th

Ed, Oxford University Press Inc, New York.

CASES:

Abadiah Saleh vs. Dodoma Wine Co. Ltd High Court of

Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of
1989
Calcuta Discount Co. vs. Ito AIR 1961, SC 372

John Mwombeki Byombalirwa vs. Regional

Commissioer, Kagera and Others High Court of Tanzania
at Mwanza, Miscellaneous Civil Case No. 3 of 1989

Mwanza Restaurant and Catering Association vs.

Mwanza Municipal Director High Court of Tanzania at
Mwanza, Miscellaneous Civil Cause No. 3 Of 1987

Patman Garments Industries Ltd vs. Tanzania

Manufacturers Ltd [1981] TLR.303

R vs. Electricity Commissioners [1990] TLR 130

R vs. Minister of Transport (1934) 2 KB 277

Sinai Murumbe vs. Muhere Chacha [1990] TLR 54

Tanzania Air Services Ltd vs. Minister for Labour,

Attorney General and the Commissioner for Labour
[1986] TLR 73

[1] Bisimba, H and C.M. Peter; Justice and Rules of Law

in Tanzania

[2] Peter, L and G. Anthony; Administrative Law

[3] Law Reform (Fatal Accident and Miscellaneous

Provisions)

[4] Bisimba, H and C.M. Peter; Justice and Rules of Law

in Tanzania

[5] Probodh Vema vs. State of UP (1984) 4 SCC 251

[7] (1924) 1 K.B 171: 93 LJKB 390

[8] Thakker, C.K; Lectures on Administrative Law

[10] High Court of Tanzania at Mwanza, Miscellaneous

Civil Case No. 3 of 1989

[12] High Court of Tanzania at Mwanza, Miscellaneous

Civil Cause No. 3 Of 1987

[13] Nannder Chand vs. Hovernor, H.P, (1971), 2 SCC 747