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.