Judicial review notes in Tanzania (grounds, procedures, cases+pdf)

What is the Rationale for Judicial Review?

The essence of judicial review is to ensure that statutory powers are not; Usurped, Exceeded, or abused and that procedural and substantive duties are complied with.

Grounds for Judicial Review

Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 stated three major grounds of Judicial Review that is Illegality, Irrationality, and Procedural impropriety.

Illegality

Illegality happens to be a ground for judicial review when administrative bodies do something that is against the law.

Under Illegality, one can challenge;

1. Excess of jurisdiction
2. Absence of power
3. Unlawful delegation
4. An error of law on the face of records
5. Improper motive/purpose

All these, when done by an administrative authority, constitute illegality. Thus judicial review can be invoked to seek remedies.

Irrationality

Irrationality happens to be a ground of judicial review when administrative bodies do something irresponsibly.

Irrationality constitutes of;

Failure to exercise discretion

Sometimes the authority is required to apply its mind to the facts and circumstances of the case at hand.

If one is acting mechanically, that is, without due care and caution or without a sense of responsibility in the exercise of discretion, then there is a failure to exercise discretion.

Unreasonableness

Lord Wrenbury in Roberts v Hopwood [1925] AC 578 stated that;

“A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do, not what he likes, but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”

Acting under dictation

This happens when a body entrusted with certain powers of carrying out decisions surrenders such power under the influence of another authority that has not been conferred such as by the law.

Other factors for Irrationality include

• Irrelevant consideration
• Mala fide
• Fettering discretion

Procedural Impropriety

Procedural Impropriety happens to be a ground of judicial review when administrative bodies do something without observing the proper procedure.

Procedural Impropriety includes;

• Failure to follow statutory procedures
• Breach of rules of natural justice
  • These include;
  • The audi alteram partem-Right to be heard
  • The Nemo Judex in causa sua-Rule against Bias
  • The Nullum Arbtrium sine rationibus-Right to be given reasons for the decision made
• The doctrine of legitimate expectation

In Tanzania, the grounds of judicial review were stated by the Court of Appeal in the case of SANAI MURUMBE AND ANOTHER v MUHERE CHACHA [1990] TLR 54 (CA) where the court stated;

“The High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds, apparent on the record.

• One, that the subordinate court or tribunal or public authority has taken into account matters which it ought not to have taken into account.
• Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account.
• Three, lack or excess of jurisdiction by the lower court.
• Four that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it.
• Five, rules of natural justice have been violated.
• Six, the illegality of procedure or decision

Procedures for applying for Judicial Review

Judicial Review is not like appeal.

One can only go for judicial review if there is no room for other alternative remedies.

It is an avenue that is not always open to any person.

The stages for the application of judicial review are;

1. Application for leave to institute a case
2. Substantive Application
3. Hearing of the case

Application for leave to institute a case

Before the substantive application of Judicial review is lodged, an applicant must first seek leave (permission) to file the same.

This Leave is sought through a Chamber Summons supported by an affidavit sworn by an applicant or his or her lawyer stating the facts and grounds supporting the application.

Just use the format of form A as provided under the First Schedule of the rules.

The enabling provision for this matter includes sections 2 (1) and (3) of the
Judicature and Application of Laws Act, Cap 358 R.E. 2019; section 18(1) and 19 (1) (2) (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 R.E. 2019; and Rule 5(1), (2) and (3) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) (Judicial Review Procedure and Fees) Rules 2014.

Leave must be sought within six months after the date of the proceedings, act or omission to which the application for leave relates.

Why leave? And Can a Court refuse to grant leave?

In principle, judicial review is a discretionary remedy.

As such it may be refused if the Court is satisfied for instance that there is another adequate remedy available to the applicant or if and where the Court is satisfied that the applicant has not exhausted all available and adequate avenues in his favor.

It may be refused on the grounds that there are no merits in the application that the applicant has no locus standi or that he has unduly delayed in making the application.

But the Court may still grant leave even when there are available remedies if in its view, those remedies are ineffective or if the procedure to secure them is cumbersome or onerous on the applicant.

The totality of the foregoing leads to one conclusion. Leave is a procedural barrier intended to prevent abuse by busy buddies.

It enables Courts to sift frivolous applications at the earliest opportunity.

Leave is usually made ex parte.

But when it is the Attorney General is a party, section 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act requires the Court to order that the AG be summoned to appear as a party to the proceedings for leave and if he does not appear on the date set for hearing the application may proceed ex parte.

What this implies is that the respondent’s presence in Court may be dispensed with until the hearing of the main cause.

It can be heard in the absence of the other party.

For more details on the application for leave read Rules 5, 6, and 7 of the Rules

Substantive Application

Once leave to apply for judicial review is granted, the applicant must file the main cause and serve it on the other party. (Read Rule 8 of the Rules.)

The substantive application for judicial review is also made through Chamber Summons supported by an affidavit, but it has to be inter-parties.

Just use the format of form A as provided under the First Schedule of the rules.

Hearing of the case

The hearing will be inter-parties after the service of the appropriate documents.

It is worth noting that if the complaint is against the government, there is no requirement to save notice of 90 days as provided for in the Government Proceedings Act.

The Government Proceedings Act would not apply.

To elucidate this point, the case of Vidyadhar Girdharal Chavda Vs Director Of Immigration Services & Others [1995] TLR 125 is relevant.

In that case, the Court, (Samatta JK, as he then was) held that the Government Proceedings Act does not embrace prerogative proceedings.

It was necessary to decide so to guard the individual rights of individuals against abuse because S.11 of the Act barred courts from granting injunctive orders against the government, ministers, and officials.

This case shows the beauty of reasoning, without which rights of the weak which is protected by law will become nugatory if provisions of laws are taken for granted.

Scope and limitation of judicial review

The Judicial review is the common law remedy that can only be exercised when the wrong is done by the administrative body and there are no other means to get legal relief.

In judicial review, only prerogative orders can be sought.

The range of prerogative orders is limited to certiorari, prohibition, mandamus, Habeas corpus, and Quo warranto.

Cases Law on Judicial Review

1. Abdi Athumani & 9 Ors. v D.C. Tunduru & Ors., HCT, Songea, Consolidated Miscellaneous Civil Case Nos. 2 & 5 of 1987 (Unreported).
2. AG v  Ryan (1980) AC 718
3. Ajit Kumar Gordhan v The Director of Immigration, HCT, DSM,  Misc. Civil Application No. 31 of 1991 (Unreported).
4. Ally Linus &  Eleven  Ors. V Tanzania Harbours Authority & The Labour Conciliation Board of Temeke District (1998) TLR 5
5. American Cyanamid Co. v Ethicon Ltd. (1975) 1 All E.R. 504
6. Amri Juma & 15 others. v Tanzania Harbours Authority (THA) & Anor.; HCT DSM, Miscellaneous Civil Cause No. 37 of 1980 (Unreported).
7. Anisminic Ltd. V Foreign Compensation Commission (1969) 2 WLR 163
8.  Associated Provincial Picture Houses Ltd. V Wednesbury Corporation (1948) 1 KB  223
9. Baraza la Wanawake Tanzania (BAWATA) & 5 Ors. v Registrar of Societies, HCT, DSM, Misc. Civil Cause No. 17 of 1997 (Unreported).
10. Council of Civil Service Unions v Minister for Civil Service (1984) AC 374
11. Fatuma Awadhi Said el Hid v Salima Ali (1987) TLR 156
12. Josiah Barthazar Baizi & Ors. v AG & Ors. (1998) TLR 331
13. Kahama Gold Mines & Ors. V Minister for Energy; HCT DSM, Miscellaneous Civil Cause No. 127 of 1989 (Unreported).
14.  Kukutia ole Pumbun & Anor. v AG & Anor. (1993) TLR 159
15. Lausa Alfan Salum & 106 ors. v Minister for Lands, Housing and Urban Development & Anor. (1994) TLR 237
16. M v Home Office & Anor. (1993) AC 718
17. Mecaiana Establishments (VADUZ) v The Commissioner of Income Tax & Ors., CAT, DSM, Civil Appeal No. 14 of 1994 (Unreported)
18. Moses J. Mwakibete v The Principal Secretary & Anor. , CAT, Civil Appeal No. 27 of 1992 (Unrptd)
19. Moses J. Mwakibete v The Principal Secretary & Anor. HCT, Arusha, Miscellaneous Civil Application No. 11 of 1992 (Unreported).
20. Nanalal Damodar Kanji v Tanga Township Authority (1940) 1 TLR (R) 239
21. National Housing Corporation v Tanzania Shoe Co. & Ors. (1995) TLR 251
22. Northern Tanzania Farmer’s Cooperative Society Ltd. v W.H. Shellukindo (Preliminary Objection) (1978) LRT 36
23. Northern Tanzania Farmer’s Cooperative Society Ltd. v W.H. Shellukindo (Merits) (1978) LRT 37
24. Peter Ng’omango v Gershon M.K. Mwangwa (1993) TLR 77
25. R v Panel on Takeovers & Mergers, ex parte Datafin Plc & Anor. (1987) QBD 81
26. Sheikh Mohammad Nassor Abdullah v The Regional Police Commander, Dar es Salaam Region & ors. (1985) TLR 1.
27.  Simeon Manyaki v The  IFM  (1994) TLR 304
28.  Sylvester Cyprian & Ors. v UDSM, HCT, DSM. Miscellaneous Civil Application No. 68 of 1994 (Unreported)
29. Tanzania Air Services Ltd.  Minister for Labour & Ors. (1996) TLR 217