Remedies for judicial review

“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, 5^th 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

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[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

[6] (1934) 2 KB 277

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

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

[9] [1990] TLR 130

[10] High Court of Tanzania at Mwanza, Miscellaneous Civil Case No. 3 of 1989

[11] AIR 1961, SC 372

[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

[14] [1986] TLR 73

[15] [1990] TLR 54