JUDICIAL REVIEW / CONTROL OF ADMINISTRATIVE

ACTION

1. INTRODUCTION TO JUDICIAL REVIEW

Origin and Definitions

Osborn’s Law Dictionary defines the term “judicial review” as “a uniform system for the
exercise by the High Court of its supervisory jurisdiction over inferior tribunals and public
bodies and persons.”

Just as in England, it is often said that the power of the High Court to supervise inferior
tribunals and administrative agencies is inherent in the court. This is so traditional and this
principle is based on the principle of the rule of law. Section 2(3) of the Judicature and
Application of Laws Act [Cap. 358 R.R. 2002] incorporates the common law as part of our
law. Thus, because under the common law, this power is exercised by the High Court of Justice
in England, the High Court of Tanzania would have the same jurisdiction. Article 108(2) of the
Constitution: “… the High Court shall have jurisdiction to deal with any matter which,
according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court…”

Judicial review is a legal process in Tanzania that allows individuals to challenge the legality
or constitutionality of decisions made by public bodies. It is a process that is enshrined in the
Constitution of the United Republic of Tanzania and regulated by the Law Reform (Fatal
Accident and Miscellaneous Provisions) Act. In Tanzania, the High Court of Tanzania is the
court that has jurisdiction to hear judicial review cases, and, for a person to challenge a decision
or action of a public body must file a petition in the High Court. The petition must specify the
grounds on which the decision is being challenged, and the relief sought and must be supported
by an affidavit verifying the facts alleged.

Rationale for Judicial Review

The institution of judicial review proceedings is based on the following grounds; Illegality,
Irrationality, and Procedural Impropriety.

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Judicial Review is Differentiated from Appeal

P.A. Oluyede, (1973), Administrative Law in East Africa, Kenya Literature Bureau, Nairobi,
p. 84, remarks: “Judicial control means judicial review and it is quite different from an appeal.”
An appeal means a superior court or tribunal is given the power to consider the decision of a
lower tribunal on merits, but judicial review is not based on merits as such but on the legality
of the lower court or tribunal’s power. It’s important to note that before initiating a judicial
review proceeding (particularly in Tanzania), a person must exhaust all available
administrative remedies such as filing an appeal or complaint with the relevant public body.
Failure to do so may result in the High Court dismissing the petition.

2. ADMINISTRATIVE REMEDIES

An applicant who seeks redress under judicial review must indicate a sort of remedy that he/she
wants the court to issue. The High Court can grant various remedies in judicial review
proceedings including declaring the decisions or actions to be illegal or unconstitutional,
quashing the decision or action, or ordering the public body to take a particular action. Several
remedies are applied in public law. These remedies may be roughly grouped into two –
prerogative remedies, and Ordinary remedies.

A. Prerogative Remedies - Certiorari, prohibition, mandamus, and habeas corpus are

famous prerogative remedies. They originated in England and they were used by the
crown and royal courts to prevent inferior tribunals and other bodies from meddling in
matters that did not concern them.

I. Certiorari

Certiorari is a Latin term that means “to be informed of”. It is an order of the High Court to
call up and examine the decision of the inferior tribunal or other agency as to its legality. If it
fails to pass the test of legality, it will be quashed or nullified. Garner (at 170): “An order of
Certiorari is a judicial process whereby the order of the “court” below can be brought up before
the supervising court, examined and quashed. The record cannot be amended, as the order of
Certiorari is a process of review and not of appeal.” The underlying philosophy is that all
inferior courts and authorities have only limited jurisdiction or powers, and they must be kept
within their legal bounds.

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Conditions for the writ of certiorari

i. Breach of the principle of natural justice; a writ of certiorari also lies where the court
or tribunals act in violation of the principles of natural justice. The two generally
accepted principles of natural justice are Nemo judex in causa sua (No man can be a
judge of his case) and Audi Alteram Partem (Hear the other side). The rationale behind
the first principle is to ensure that the courts act independently and impartially without
any bias towards one side or the other. The second principle infers that the parties
affected must be given sufficient opportunity to meet the case against them. See
Tanzania Air Services Ltd v. Minister for Labour, Attorney General & the
Commissioner for Labour (1996) TLR 217 (HC)

ii. Error of law in the face of records; the writ of certiorari can also be issued to correct
an error of law apparent on the face of the record. It cannot be issued to correct an error
of fact. What is an error of law apparent on the face of the record is to be decided by
the courts on the facts of each case. The court said that no error could be said to be error
apparent on the face of the record if it was not self-evident and if it required an
examination or argument to establish it. An error of law that is apparent on the face of
the record can be corrected by a writ of certiorari but not an error of fact, however grave
it may appear to be. The reason for the rule is that the court issuing a writ of certiorari
acts in a supervisory jurisdiction and not appellate jurisdictions on the merits of the case
or gives direction to be complied with by the inferior court or tribunal. See Sanai
Murumbe and another v Muhere Chacha [1990] TLR 54 (CA).

II. Prohibition

It is an order of the High Court to prohibit the lower tribunal or administrative tribunal or
administrative body from doing something in excess of its jurisdiction or going contrary to the
law. Primarily it lay to prohibit an inferior tribunal from doing something in excess of its
jurisdiction. The writ may be issued when an inferior court is acting outside the normal rules
and procedures in the examination of a case headed toward defeating a legal right.

Prohibition and Certiorari

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 • These two remedies are similar in many ways. Prohibition issues to forbid some act or
decision which would be ultra vires whereas Certiorari issues to quash a decision which
is ultra vires.
• Certiorari looks to the past whereas prohibition looks to the future.

See Palm Beach Inn Ltd and Another v Commission for Tourism and Two Others.

III. Mandamus

Mandamus is the Latin word that means “command or an order”. A writ of mandamus
(command) is of English origin. In the past, the king of England as an authoritarian autocrat of
the administrative setup used to issue a mandamus to his subjects commanding them to fulfil
the public duty asked for them many times during the day.

It is an order given by the High Court commanding a person to whom it is directed to carry out
a public duty imposed by law. Disobedience to mandamus is a contempt of court punishable
by imprisonment or fine. The power of the court to punish in case the order is disobeyed is the
one that makes the mandamus a command that must be complied with. Just like certiorari
and prohibition, mandamus is unlikely to be ordered by the court if there is another
alternative remedy. It is said that mandamus (and of course other prerogative remedies) will
not be issued when there is a right to appeal. This however does not appear to be a settled
position of law. See John Mwombeki Byombalirwa vs Regional Commissioner &
Regional Police Commander, Bukoba [1987] TZHC 6 (28 March 1987)

IV. Habeas Corpus

This is an order of the High Court directing the addressee to produce a certain person who is
illegally detained and to justify the detention on the failure of which a forthwith release will be
ordered.

Habeas corpus has distinctive features which separate it from other prerogative remedies;

• Unlike other prerogative remedies, this remedy is not discretionary. It cannot therefore
be denied on account that there may be some alternative remedy; so once established
that a person is unlawfully detained, the court will have to issue the order.

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 • Second, it may be directed to a private person as distinguished from other prerogative
orders which go only to public bodies, individuals vested with public power, or private
bodies performing duties of “public nature.”
• Third, unlike other remedies, the procedure to apply habeas corpus is statutorily
provided and has its statutory procedure. It is provided for in the Criminal Procedure
Act, [Cap 20 RE 2002]. Section 390 of that Act provides that,
(1) The High Court may, whenever it thinks fit, direct–
(a) that any person within the limits of Mainland Tanzania be brought up before the
court to be dealt with according to law;
(b) that any person illegally or improperly detained in public or private custody within
such limits be set at liberty;
(c) that any prisoner detained in any prison situated within such limits be brought before
the court to be there examined as a witness in any matter pending or to be inquired into
in such court;
(d) that any prisoner detained as aforesaid be brought before a court-martial or any
commissioner acting under the authority or any commission from the President for trial
or be examined touching any matter pending before such court-martial or commissioner
respectively; and
(e) that any prisoner within such limits be removed from one custody to another for
trial; and

Perhaps based on these reasons many modern writers on administrative law no longer regard
habeas corpus as a prerogative order.

NOTE: All prerogative remedies except the writ of Habeas Corpus are discretionary. A person
may prove that a certain body has acted improperly but the court may withhold the order. In
this regard, Mroso J (as he then was) said in Tanzania Dairies Ltd v Chairman, Arusha
Conciliation Board, and Isaack Kirangi [1994] TLR 33 at 38 that “The orders of certiorari
and mandamus, among other prerogative orders, are discretionary and this court may refuse
to grant them even where the right has been established.” The court must be satisfied that the
case at hand is one for which the orders may be properly issued. Discretion in law is by itself
not a good thing. It makes the law unknown to anyone but the judge himself.

B. Ordinary Remedies - The traditional public law remedies are prerogative orders
(certiorari, prohibition, mandamus, and habeas corpus). Public law is rapidly developing and

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changing. Thus, the practice of using private law remedies (injunctions, declarations, and
damages) has grown in the field of public law. The domain of the so-called ordinary remedies
(injunction, declaration, and damages) is civil law.

3. PROCEDURE FOR APPLICATION OF PREROGATIVE ORDERS

Application for prerogative orders – certiorari (quashing order), prohibition (prohibiting order)
and mandamus (mandatory order) are neither governed by the Civil Procedure Code nor by the
Government Proceedings Act. The procedure for applying such orders is not codified. The
above two statutes apply to civil proceedings whereas prerogative orders fall under the realm
of public law. Section 19 of the Law Reform (Fatal Accidents and Miscellaneous Provisions)
Act empowers the Chief Justice to make rules that would govern the application of prerogative
orders. Four decades have now passed since such powers were given in 1968 but the Chief
Justice is yet to make such rules. Legal practitioners, judges, and other persons have thus been
compelled to rely on case law and developed practice.

Justice Mwalusanya describes the absence of codified rules as a “blessing in disguise” as it

allows the courts to develop the procedure freely. Whatever the advantages of such absence
are, the lack of codified procedure for important judicial review proceedings is undesirable, to
say the least. It is extremely difficult for ordinary citizens to make applications under judicial
review unless they are assisted by advocates whose services are expensive and unaffordable to
many. Moreover, the law on this aspect is uncertain, and troublesome even to the judges.

The procedure for the application of prerogative orders is a two-pronged stage process. Before
applying for the orders, the applicant has to seek leave first. In other words, “he must apply for
leave to apply” or “he must apply for a leave (permission) to file an application.” If the
applicant successfully jumps over this hurdle, he would then go to a second stage ― application
for the orders.

First stage: Leave

The law demands that the applicant must obtain leave before he makes an application for
prerogative orders. Lugakingira, J (as he then was) observed in Peter Shirima v Kamati ya

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Ulinzi na Usalama, Wilaya ya Singida, the Area Commissioner and the Attorney General
[1983] TLR 375 at 381 that:

“… it is evident that prior leave has been the accepted procedure before this court for
as long as I am unable to ascertain. Thus, apart from the unreported cases already
referred to, in Re Fazal Kassam (Mills) Ltd., [1960] E.A. 1002, which was an
application for the writs of certiorari and mandamus, leave had been applied for and
granted. Re Hirji Transport Service [1961] E.A. 88 was a ruling on an application for
leave and it was granted. It is therefore clear to me that the efficacy of this procedure
has never before been questioned or doubted. I am thus of the respectful view that by
reason of long use, coupled with approval, the practice of seeking leave has come to be
part of our procedural law. The application now before me is therefore very relevant.”

Similarly, in Hans Wolfgang Golcher v General Manager of Morogoro Canvas Mill Limited
[1987] TLR 78, Maina J held that in all applications for prerogative orders, such as certiorari
and mandamus leave must be sought and obtained before the application for any prerogative
order is heard.

Many decisions state this requirement, to wit, an applicant must first seek leave. It thus means
that a direct application for orders without seeking leave is liable to be rejected. Now, the
question which immediately comes to mind is this: what is the object of that leave? In this
regard, Professor Shivji writes, “… the whole purpose of the application for leave would be to
weed out frivolous and vexatious applications and perhaps those, on the face of it, that do not
exhibit good faith or ex facie an abuse of the legal process.” Thus, the requirement for leave
intends to enable the judge to see whether there is a substance in the application. The next
question is what exactly the applicant must do. Manento, JK, in Adelina Chungulu and 99
others v. NECTA and another140, supplies an answer to this question: “In the application for
prerogative order, a party files a chamber summons supported by an affidavit and a statement
for granted leave. It is only after leave has been granted, will the petitioner petition for the
orders sought.” It is clear from the foregoing that the applicant has to file three sorts of
documents: (i) The Chamber Summons, (ii) Statement of grounds, and (iii) Affidavit. Professor
Shivji cites other authorities which propound this requirement.

Now, when the applicant files the chamber summons, and statement of grounds as supported
by an affidavit, what the court should do? In Amani Mwenegoha v. The Registered Trustees
of the Lutheran Church in Tanzania & 3 others142, Massati, J (as he then was) says at pp 1-2:

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 “There is before me an application for leave to apply for the prerogative orders of
certiorari and mandamus. Normally at this stage, the court looks at the material filed and
may grant leave ex parte without going into the matter in depth, if it is satisfied that there
is an arguable case for the grant of the relief sought by the applicant. But it is also
permissible and it is the practice, that if the judge looking at the papers in support of an
application concludes that it is uncertain whether or not there is an arguable case he
should invite the putative respondent to attend and make representations as to the grant
or refusal of the leave (see R. v. Secretary of State for the Home Department, ex parte
Augur Begum (1989) Times, 3 April, CA, a case cited in Halsbury’s Laws of England (4th
ed, Vol 1(1) p.277.” [Underlining added].

Thus, what the court does at the leave stage is to look at the documents to see whether the
applicant has established a prima facie case, whether there are arguable issues, or whether there
is a substance in the application. Justice Kaji, in YUASA Battery (EA) Ltd v Conciliation Board
of DSM and others [1996] TLR 367, said: “As far as the second prayer is concerned, after
perusing the written submission by the applicant's learned counsel I have been quite satisfied
that the applicant has established a prima facie case for leave to apply for an order of certiorari.”
[Underlining added]. If, therefore, the court is satisfied that the application is not frivolous or
vexatious or made in bad faith, but rather it raises arguable issues or establishes a prima facie
case, or it has substance, it would then grant leave to apply. If the court finds otherwise it would
refuse the application but the applicant would be entitled to appeal to the Court of Appeal.

One last point in so far as the leave stage is concerned, applications for leave are usually made
ex parte (one side only). It means they are usually made and determined in the absence of the
parties against whom such applications are sought. Unless the papers in support of an
application conclude that it is uncertain whether or not there is an arguable case, he should
invite the putative respondent to attend and make representations as to the grant or refusal of
the leave.

Second stage: Application for Orders

While the first application (at the leave stage) is specifically meant to secure the leave, the
second one is meant to obtain the order(s) sought. In case the leave has been granted, the
applicant would make a fresh application by filing the usual three documents ― chamber
summons, statement of grounds, and an affidavit in support thereof. The practice is to indicate
in the new affidavit that the leave has been granted. Unlike the first application which is usually

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made ex parte, the second one is inter partes, that is, all parties (the applicant and respondent)
must participate. The respondent would be served and required to appear and file the counter
affidavit. According to Professor Shivji, in judicial review proceedings the practice is a more
pronounced use of affidavits than oral evidence. But, that is not to say that oral evidence is not
admissible in judicial review cases. Having scrutinised the arguments and counter-arguments
from both sides, the court would then give its judgment to issue the orders sought or decline in
which case the aggrieved party would have the right to appeal.

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