Crtiorary N Prohibition

THE OPEN UNIVERSITY OF TANZANIA
ADMINISTRATIVE LAW
ASSIGNEMENT
NAME:
QUESTION
With the aid of examples and/or authorities, prepare concise notes on all of following.
(a) The distinction between orders of ‘certiorari’ and ‘prohibition’.
(b) The possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

remedies’ (i.e. public law remedies) in an application for judicial review.
(c) ‘Legitimate expectation’ as a ground for judicial review.
DATE DUE:
(a) The distinction between orders of ‘certiorari’ and ‘prohibition’.
OUTLINE
1.1. Meaning of ‘certiorari’.

1.2. Meaning of ‘prohibition’.
1.3. Distinction between ‘certiorari’ and ‘prohibition’.
1.4. Some similarities between ‘certiorari’ and ‘prohibition’ and conclusion.
1.1. Meaning of ‘certiorari’.
According to Dr. U.P.D. Kesari1, certiorari is a command or order to an inferior court or

tribunal to transmit the records of a cause or matter pending before them to the superior
court to be dealt with there and if the order of inferior court is found to be without
jurisdiction or against the principles of natural justice, it is quashed.
According to Encarta Encyclopedia Standard, 2004 Certiorari, in common law, writ or

written command issued by a superior court to a lower court, or to a public officer or
public board, having judicial authority that requires the record of the proceedings in a
lower court to be sent to the superior court for review. The higher court studies the record
while the case is still pending and decides whether or not the inferior court is acting in
accordance with the law. Superior courts may use the writ in either criminal or civil cases
to ensure speedier justice. They do not judge the proceedings according to their merits;
they review only the legal aspects of the case, such as whether the lower court has
jurisdiction to try the case. On the basis of its findings, the superior court may remove the
action or proceedings to a higher court for trial.
1.2. Meaning of ‘prohibition’.
According to C.K. Takwani2, prohibition is an order directed to an inferior Tribunal

forbidding it from continuing with a proceeding therein on the ground that the proceeding
is without or in excess of jurisdiction or contrary to the laws of the land, statutory or
otherwise. C .K. Takwani3 further stress that the principle underlying the writ of
prohibition is that ‘prevention is better than cure’.
A writ of prohibition, in the United States, is an official legal document drafted and
issued by a Supreme Court or superior court to a judge presiding over a suit in an inferior
court. The writ of prohibition mandates the inferior court to cease any action over the
case because it may not fall within that inferior court's jurisdiction. The document is also
issued at times when it is deemed that an inferior court is acting outside the normal rules
1
LECTURES ON ADMINISTRATIVE LAW, p 302
2
LECTURES ON ADMINISTRATIVE LAW, p 315
3
ibid
1
and procedures in the examination of a case. In another instance, the document is issued
at times when an inferior court is deemed headed towards defeating a legal right4.
1.3. Distinction between ‘certiorari’ and ‘prohibition’.
Firstly, as far as stage of application is concerned, certiorari applies to a decision which

is fait accompli while prohibition is essentially issued to prevent the decision from
becoming accompli for the reason that the way towards such decision is legally defective.
To demonstrate this is the case of Jimmy David Ngonya v. National Insurance
Corporation Ltd5, The applicant was dismissed from employment as a branch manager
of the respondent corporation. The Board of Directors dismissed him on the basis of an
audit report whose contents were never shown to the applicant to enable him to contradict
them. When the Board of Directors met to deliberate on the applicant's case, the General
Manager, who had initiated the proceedings against the applicant and had commissioned
the audit, was present but the applicant was absent. The applicant applied for certiorari
and mandamus arguing that his dismissal was in contravention of the rules of natural
justice. The court inter alia granted the order of certiorari.
Secondly, the writ of certiorari can be issued against the decision quashing such decision
even after the inferior court or tribunal or authority ceases to function (functus officio).
This is different from prohibition which is basically issued against the inferior court,
tribunal or authority while they are functioning. It can not be issued in cases of functus
officio.
Thirdly, in principle issuing of the writ of certiorari seeks to ‘correct an error’ while
prohibition revolves around the cannon that ‘prevention is better than cure’.
Fourthly, certiorari quashes the decision of the inferior courts, tribunals or authorities
while prohibition stops the proceedings of the inferior courts, tribunals or authorities.
1.4. Similarity between the ‘certiorari and ‘prohibition’ and conclusion.
Both certiorari and prohibition are judicial writs and are available against subordinate
courts and inferior tribunals. Basically the two writs are not different except that their
timing is different; prohibition is relevant before the decision is reached while certiorari
is relevant when the decision has already been reached.
(b) The possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

remedies’ (i.e. public law remedies) in an application for judicial review.
Basically in a declaratory action, the rights of the parties are declared without giving any
further relief. The essence of a declaratory judgment is that it states the rights or the legal
4
http://en.wikipedia.org/wiki/Prohibition_%28writ%29
5
[1994] T.L.R. 28 (HC)
2
position of the parties as they stand, without altering them in any way though It may be
supplemented by other remedies in suitable cases6.
A declaratory order is not enforceable, and Garner 7 says this is a serious defect in private
law.
There is a possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

remedies’ in an attempt to make it more effective and to cure the defect in private law.
This possibility can be to the effect that once the said rights or legal position has been
proclaimed there should be room to compel the authority which has deprived such rights
or legal entitlements to the victim. A declaratory order is a procedural issue and not
substantive hence it should be made substantive so as to enable the victims to pursue
other measures like application for orders of mandamus, prohibition or certiorari.
(c) ‘Legitimate expectation’ as a ground for judicial review.
OUTLINE
1.1. Meaning of legitimate expectation.

1.2. Nature and scope of legitimate expectation.
1.3. Object of legitimate expectation.
1.4. Conclusion.
1.1. Meaning of legitimate expectation.
The concept of legitimate expectation basically means that an individual is in expectation

of a particular treatment by an administrative authority even though he has no legal right
in private law to receive such right. The expectation may arise either from a
representation or promise made by the authority, including an implied representation or
form consistent past practice.8 The leading case of Attorney General of Hong Kong v. Ng
Yuen Shiu9 is relevant at this juncture. The government announced that illegal
immigrants would not be deported till their cases would be considered individually on
merits. A deportation order was passed against the applicant without affording
opportunity. Quashing the order, the Court observed:
“when a public authority has promised to follow a certain procedure, it is in the

interest of good administration that it should implement its promise, so long as
implementation does not interfere with its statutory duty”
1.2. Nature and scope of legitimate expectation.

6
C.K. Takwani, ibid at p 338.
7
Administrative Law, 1985, p. 185
8
[Halsbury’s Laws of England, 4th Edn., Vol-1 (1) 151] as quoted in P. Ramanatha Aiyar, Concise Law
Dictionary, 3rd Edn., 2005.
9
(1983) 2 All ER 346: (1984) 2 WLR 735: (1983) 2 AC 629. as quoted in C.K. Takwani, LECTURES ON
ADMINISTRATIVE LAW, 3rd Edn., at p 280
3
One important thing to note is that a person may have a legitimate expectation of being
treated in a certain way by an administrative authority even though he has no legal right
in private law to receive such treatment. An administrative authority has a duty to act
judicially where its decision adversely affects legal rights of an individual. However, the
absence of a legal right does not deprive such person the right to receive the benefit or
privilege. Express promise or existence of regular practice may give rise to legitimate
expectation of which the applicant can reasonably expect to continue. The Court, in such
cases, may protect such expectation by invoking principles analogous to natural justice
and fair play in action. The court may not insist and administrative authority to act
judicially but may still insist it to act fairly.
1.3. Object of legitimate expectation.
The kernel object of legitimate expectation is to compel administrative authorities to act

in such a way that the public (citizenry) may build confidence in them and expect fair and
legitimate results from their conduct which in one way or the other touches the rights of
the citizens. This doctrine has been developed both in the context of reasonableness and
in the context of natural justice.
1.4. Conclusion.
The doctrine of legitimate expectation, if meets all the conditions of which the major one
is for a person who bases his claim on the doctrine to satisfy that there is a foundation for
such a claim, forms a ground for judicial review. Where the applicant prima facie
satisfies the court that his claim on the basis of legitimate expectation is well founded, it
is for the authority to justify the action taken against the applicant. However, the doctrine
has some limitations; it is only procedural and has no substantive impact. Moreover, the
doctrine does not apply to legislative activities. Furthermore, it does not apply if it is
contrary to public policy or against the security of the State. It is observable from the
above discussion that the doctrine imposes a duty to act fairly. The doctrine may come in
various forms and from different circumstances.
BIBLIOGRAPHY
4
C.K. Takwani, LECTURES ON ADMINISTRATIVE LAW, 3rd Edn, Eastern Book
Company Lucknow.
Dr. U.P.D. Kesari, LECTURES ON ADMINISTRATIVE LAW, Central Law Agency.
Encarta Encyclopedia Standard, 2004.
John Alder, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 5th Edn, Palgrave

Macmillan Law Masters.
P Ramanatha Aiyar, CONCISE LAW DICTIONARY, 3rd Edn.,2005.

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THE OPEN UNIVERSITY OF TANZANIA

(a) The distinction between orders of ‘certiorari’ and ‘prohibition’.

(b) The possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

(c) ‘Legitimate expectation’ as a ground for judicial review.

1.1. Meaning of ‘certiorari’.

1.1. Meaning of ‘certiorari’.

According to Dr. U.P.D. Kesari1, certiorari is a command or order to an inferior court or

According to Encarta Encyclopedia Standard, 2004 Certiorari, in common law, writ or

1.2. Meaning of ‘prohibition’.

According to C.K. Takwani2, prohibition is an order directed to an inferior Tribunal

1.3. Distinction between ‘certiorari’ and ‘prohibition’.

Firstly, as far as stage of application is concerned, certiorari applies to a decision which

1.4. Similarity between the ‘certiorari and ‘prohibition’ and conclusion.

(b) The possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

There is a possibility of marrying a private remedy of ‘declaration’ with ‘prerogative

(c) ‘Legitimate expectation’ as a ground for judicial review.

1.1. Meaning of legitimate expectation.

1.1. Meaning of legitimate expectation.

The concept of legitimate expectation basically means that an individual is in expectation

“when a public authority has promised to follow a certain procedure, it is in the

1.2. Nature and scope of legitimate expectation.

1.3. Object of legitimate expectation.

The kernel object of legitimate expectation is to compel administrative authorities to act

Dr. U.P.D. Kesari, LECTURES ON ADMINISTRATIVE LAW, Central Law Agency.

Encarta Encyclopedia Standard, 2004.

John Alder, CONSTITUTIONAL AND ADMINISTRATIVE LAW, 5th Edn, Palgrave

P Ramanatha Aiyar, CONCISE LAW DICTIONARY, 3rd Edn.,2005.

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