THE REPUBLIC EX-PARTE PETER SHIRIMA v KAMATI YA ULINZI NA USALAMA, WILAYA YA SINGIDA,THE AREA COMMISSIONER AND THE ATTORNEY GENERAL 1983 TLR 375 (HC)

THE REPUBLIC EX-PARTE PETER SHIRIMA v KAMATI YA ULINZI NA USALAMA, WILAYA YA SINGIDA,THE AREA COMMISSIONER AND THE ATTORNEY GENERAL 1983 TLR 375 (HC)

Court High Court of Tanzania - Dodoma

Judge Lugakingira J

December 3, 1981 E

MISCELLANEOUS CRIMINAL CAUSE 18 OF 1981

Flynote

Prerogative writs - Certiorari and Prohibition - Applicant charged with selling goods

at a F price higher than the maximum price - Goods confiscated by police - Charges

withdrawn - Goods returned to Police and sold - Appeal against order returning

goods to Police - Subsequent withdrawal of trading licence and expulsion order on

the orders of the Area G Commissioner and Defence Committee - Whether action

by Area Commissioner and Defence Committee "judicial".

Prerogative Writs - Certiorari and Prohibition - Withdrawal of licence and order of

expulsion H - Certiorari and Prohibition granted against the Officer Commanding

District to restrain him from carrying our order of expulsion - Application for further

orders against the Area Commissioner and the Defence Committee - Whether latter

application competent.

Prerogative writs - Certiorari and Mandamus - Practice and procedure - Application

for - I Whether leave necessary.

1983 TLR p376

LUGAKINGIRA J

-Headnote

The applicant had been arrested and charged with selling goods at prices in excess of

the A maximum prices set under the Regulation of Prices Act. Some goods were

confiscated from his shop and produced as exhibits in the proceedings. Subsequently,

the charges were withdrawn and in consequence, the trial magistrate ordered the

goods to be restored to the Police. The applicant appealed against this order, but

before it was B heard, the Officer Commanding District (OCD) informed him that

the goods were to be sold by the police, his trading licence had been revoked and he

had to leave Singida town within a specific period.

The applicant then applied for orders of certiorari and prohibition to quash the orders

C of the OCD and to restrain him from carrying out the order of expulsion. This

application was granted. He later learnt that the OCD was acting on the orders of the

Area Commissioner and the District Defence Committee (Kamati ya Ulinzi na

Usalama). He then applied for leave to apply for the orders of certiorari and

prohibition against the Area Commissioner and the District Defence Committee. D

Held: (i) The practice of seeking leave to apply for prerogative orders has become part

of our procedural law by reason of long user;

(ii) the existence of the right to appeal and even the existence of an appeal

itself, E is not necessarily a bar to the issuance of prerogative order; the matter is one

of judicial discretion to be exercised by the court in the light of the circumstances of

each particular case;

(iii) where an appeal has proved ineffective and the requisite grounds exist, the

aggrieved party may seek for, and the court would be entitled to grant, relief by way

of F prerogative orders;

(iv) (obiter) the applicant should have joined the respondents in the second

application with the respondent in the first application once they became known to

him by an amendment of the first application;

(v) (obiter) s. 2(2) of the Judicature and Application of Laws Ordinance Cap.

453 requires the court to apply only the substance of English Common Law the G

Doctrines of Equity and the Statutes of General Application in force on the 22nd July

1920;

Per Curiam: it is a cause of anxiety that one has to have recourse to obscure rules H

which were abandoned in country of origin more than forty years ago; there is urgent

need to pay attention to s. 349(2) of the Criminal Procedure Code (S. 291(2) of the

Criminal Procedure Act ).

Case Information

Application rejected. I

Cases referred to:

1983 TLR p377

LUGAKINGIRA J

1. Mohamed v Regional C.I.D. Officer Mbeya; Misc. Crim. Cause No. 29

of A 1978 (Mbeya Registry) (unreported).

2. Mwakilasa v The Principal Secretary (Treasury): Misc. Crim. Cause No.

14 of 1978 (Mbeya Registry) (unreported).

3. Makule v The R.P.C., Kilimanjaro: Misc. Civ Appl. No. 87 of 1979

(Arusha Registry) (Unreported). B

4. Lakarau v Town Director Arusha: Misc. Civ Appl. No. 56 of 1979

(Arusha Registry).

5. D.M.T. Ltd. v The Transport Licensing Authority [1959] E.A. 403.

6. Re: Fazal Kassam (Mills) Ltd. [1960] E.A. 1002. C

7. Re: Hirji Transport Service [1961] E.A. 88.

8. Shah Vershi & Co. Ltd. v The Transport Licensing Board [1971] E.A.

289.

9. Re: A.G.'s Application [1958] E.A. 482.

D. Mbezi for the applicants. D

[zJDz]Judgment

Lugakingira, J.: This was an ex parte application for leave to apply for orders of

certiorari and prohibition.

The applicant, Peter Shirima, owned and ran a shop in Singida township. On 15th E

August, 1981 the police entered the shop and seized a quantity of shop goods. On

25th August the applicant was charged before the District Court of Singida with the

offences of selling goods in excess of the maximum prices contrary to sections 20 and

26 of the Regulation of Prices Act, 1973 and hoarding contrary to what were cited as

sections F 194 A(c)(i)(ii) and 4 of the Penal Code. I will say nothing about those

provisions for their nonexistence or irrelevance is self-evident. The trial commenced

on 17th September when some evidence was adduced by the prosecution and the

goods were tendered as exhibits. At the resumed hearing on 18th September the

charges were G withdrawn under s. 86(a) of the Criminal Procedure Code.

Thereupon the trial magistrate made an order restoring the goods to the police. The

applicant appealed against that order in Criminal Appeal No. 100 of 1981 which is due

for hearing before this court.

Meanwhile, on 25th September, the applicant was summoned to the police station by

H the OCD and told that the goods would be sold. They were duly sold on the next

day. The applicant was also informed that his trading licence, which had also been

seized, had been cancelled. He was then ordered to dispose of the remaining goods in

his shop and to leave Singida town not later than 2nd October, 1981. I

In consequence of these orders and actions the applicant applied

1983 TLR p378

LUGAKINGIRA J

to this court in Miscellaneous Criminal Cause No. 14 of 1981 for orders of certiorari

A and prohibition to quash the orders of the OCD and to restrain him from carrying

out the order of expulsion. The application was heard by my brother Maina, J. on

19th October, after leave had been applied for and granted, and orders were made and

issued as prayed.

But while the hearing was going on the applicant gathered that the OCD had

apparently B acted on orders of the Area Commissioner and the Kamati ya Ulinzi na

Usalama, Singida District. He therefore brought the present application for leave to

apply for the same orders against the Area Commissioner and the Kamati ya Ulinzi na

Usalama. At the hearing of this application I requested Mr. Mbezi, learned counsel

for the C applicant, to enlighten me on the following:

(a) Whether it was a legal requirement to seek prior leave to apply for

prerogative orders;

(b) Whether the court had jurisdiction to grant such leave considering D

(i) that part of the subject matter appeared to be the subject of

Criminal Appeal No. 100 of 1981; and

(ii) that similar orders on the same complaints had already been

granted in Miscellaneous Criminal Cause No. 14 of 1981. E

I would now point out that the orders of the court in Miscellaneous Criminal Cause

No. 14 of 1981 were duly served on one Akilimali, A.S.P., of Singida Police on 9th F

November, 1981.

Regarding (a) Mr. Mbezi conceded that the procedure was not entirely clear. He

informed the court, however, that it has been the practice in these matters to adopt

the procedure applicable in habeas corpus proceedings. Regarding (b)(i) he said that

the G subject of Criminal Appeal No. 100 of 1981 was different: It was there

intended to determine the legality of the trial magistrate's order of restoring the goods

to the police whereas certiorari was being sought, inter alia, to quash the decision to

sell the said goods. And regarding (b)(ii) he submitted that the court had jurisdiction

as the H respondents were different. I must confess that I could not on my part find

easy answers to these questions. And Mr. Mbezi, on his part, was unable to refer me

to any authorities.

I shall now consider these matters beginning with (a) Subsection (1) of s. 349 of the

Criminal Procedure Code, provides that the High Court may in the exercise of its I

criminal jurisdiction issue any writ which maybe issued by the High Court of

Judicature in England. Subsection

1983 TLR p379

LUGAKINGIRA J

(2) further provides that the High Court may from time to time make rules to regulate

the A procedure in cases under the said section. For reasons I cannot think of, no

such rules have ever been made. However, there is authority for saying, as Mr. Mbezi

did, that the practice of this court has always recognised prior leave as prerequisite in

the making of applications for prerogative orders. We should therefore look at some

B decisions as regards the court's practice.

In the case of Mohamed v Regional C.I.D. Officer, Mbeya: Miscellaneous Criminal

Cause No. 29 of 1978 (Mbeya Registry), a question was raised in a preliminary

objection and it was whether an application for mandamus could be entertained in

the absence of prior leave. Mwakibete, J. stated, inter alia: C

"The urgency of the matter - the subject of this application - cannot be

overemphasized. There is an allegation - albeit impliedly - of flagrant misuse of

authority to the suffering of the applicant. Surely the circumstances demand that the

application is heard with dispatch on its D merits ....

It is a case properly crying for dispensation of the alleged leave. Thus by

virtue of this court's inherent powers I hereby order that the leave to file the

application be dispensed with". E

It is implicit in the above that the learned judge acknowledged the desirability of an

application for prior leave but he was prepared to dispense with it on the exigencies

of the case before him. The judge had been referred to Mwakilasa v The Principal F

Secretary (Treasury): Miscellaneous Criminal Cause No. 14 of 1978 (Mbeya Registry),

in which it appears to have been specifically held that prior leave was a necessity.

Unfortunately, I could not trace that ruling here and I could not have attempted to do

so without risking delay. But the issue arose again in Lakarau v Town Director

Arusha: Miscellaneous Civil Application No. 56 of 1979 (Arusha Registry), G where

an application for mandamus had similarly been brought without prior leave. It was

there stated by Maganga, J., and I quote,

"... it still appears to me that the application as filed is incompetent for the

reason that no leave H to file the application had been granted. The procedure for

Orders of mandamus and other writs as stated at page 70 of Halsbury's Laws of

England (3rd Ed. Vol. 11) make it mandatory for leave to apply to be obtained before

an application for any of the writs is made. I

1983 TLR p380

LUGAKINGIRA J

It is stated therein that: "No application can be made unless leave therefor has been A

granted ... ."

Because leave had not been obtained in that application, and for a number of other B

reasons stated in the ruling, the learned judge dismissed the application.

A different view was taken by Mroso, J. in Makule v The R.P.C., Kilimanjaro;

Miscellaneous Civil Application No. 87 of 1979 (Arusha Registry). He was then

considering an ex parte application for leave to apply for mandamus and ruled that

leave to apply was not part of the law of this country, citing D.M.T. Ltd. v The C

Transport Licensing Authority [1959] E.A. 403 and section 2(2) of the Judicature and

Application of Laws Ordinance, Cap. 453. He therefore dismissed or struck out the

application. I have had the advantage of reading carefully the citations by Mroso, J.,

and I think, with respect, that none of them is devoted to the question of leave as

such. In so D far as I can gather they are concerned generally with the law

applicable.

Admittedly, one cannot but agree with Mroso, J. as to that law. The quotation by

Maganga, J. from Halsbury's Laws in the Lakarau case takes source directly from 0.59,

r. 3(1) of the Rules of the Supreme Court in England which were made under s. 120 of

E the Administration of Justice (Miscellaneous Provisions) act, 1938, and which

replace the Crown Office Rules, 1906. As pointed out by Mroso, J. these 1938 rules

have no application in this country having regard to the reception date which is 22nd

July, 1920. I would therefore respectfully agree that the law applicable is to be found

in the Crown F Office Rules, 1906. Unlike the learned judge, however, I have not

been privileged to see these rules, but I believe he was correct in saying that they do

not require an application for prior leave. Nevertheless, I cannot for bear to express

my anxiety that, to-date, one has to have recourse to obscure rules which were

abandoned by their G country of origin more than forty years ago. I think there is

urgent need to pay attention to subsection (2) of s. 349 of the Criminal Procedure

Code.

Having said that, however, I still would not go to the extent of saying that absence of

a statutory requirement implies that an application for leave, whenever brought, must

H necessarily be rejected. I say so because, firstly, it is clear from s. 2(2), Cap. 453

that what this court is expected to apply is the substance only of the English Common

Law, the doctrines of equity and the statutes of general application in force on the

22nd July, 1920. It has therefore never been suggested that an application for leave

would I contravene the Crown Office Rules, 1906 and I believe that what the law

does not forbid, it permits. Indeed if there is any

1983 TLR p381

LUGAKINGIRA J

disadvantage in such a procedure, it accrues to the applicant himself. Secondly, A

reverting again to the issue of practice, 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 B

mandamus, leave had been applied for and granted. And 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 user, coupled with approval,

the C practice of seeking leave has come to be part of our procedural law. The

application now before me is therefore very relevant.

The second question consists of two parts both on the issue of jurisdiction. The first

part is whether the court has jurisdiction to entertain the intended application for

orders in view of the appeal pending before this court. The appeal seeks to test the

validity of the D trial magistrate's order by which he restored the shop goods to the

police. As pointed out the order was made upon the charge being withdrawn under s.

86(a) of the Criminal Procedure Code. I am not here called upon to go into that order

for it may receive attention in the appeal itself. Nevertheless, I can look into the

intention of that appeal. E Undoubtedly, it is intended to secure the reversal of the

magistrate's order and, logically, the restoration of the goods, or their value, to the

applicant. The purpose of the intended application for certiorari, on the other hand,

is to quash the decision to sell the goods and no more. And it is relevant to emphasize

the fact that the goods have in fact already F been sold. The fundamental question

to which I desire to address my mind is whether where there is a right of appeal, and

it has been exercised, the aggrieved party can resile from the procedure he has

adopted and have recourse to prerogative orders.

The question has been the subject of discussion before. In Shah Vershi & Co. Ltd. v

G The Transport Licensing Board [1971] E.A. 289, a Kenyan case, it was held by

Chanan Singh, J., at p. 294 that:

Ordinarily, the High Court will decline to interfere until the aggrieved party

has exhausted his H statutory remedy .... But this is a rule of policy, convenience,

and discretion, rather than a rule of law. In other words, the existence of a right of

appeal is a factor to be taken into account: it does not bar the remedy (of certiorari),

especially where the alternative is not speedy, effective, I and adequate ...

1983 TLR p382

LUGAKINGIRA J

He went on: A

"... I am of the view that neither the existence of a right of appeal nor the filing

of an appeal deprives the company of its right to ask for certiorari". B

In that case an appeal had been lodged with the appropriate body several months

before the above decision but had never been listed for hearing. Similar appeals had

been lodged by the same applicant over two years earlier and these too had never

been listed for hearing. It was in those circumstances that the above decision was

reached. In the C earlier case of Re A.G.'s Application [1958] E.A. 482, it was said

by Cram, Ag. J., at p. 485:

"It is well-settled law that, where there is express legislation as to appeal, the

prerogative, D while not repealed (for that is difficult to conceive) cannot ordinarily

be invoked unless and until the local substantive provisions have been fully exploited

and found wanting in remedy. The ancient remedy of prerogative is from time to

time superseded. In a sense it become obsolete". E

He went on, at p. 486:

"I am unable to see how the appellant can now be permitted to abandon the

procedure he has followed, recede from the statutory procedure hitherto followed

and ignore procedure for relief F provided by a statute and be permitted to invoke

the non-statutory jurisdiction provided by the prerogative".

The above two decisions express the same thing, though with a shift of emphasis, that

a G statutory remedy takes priority over but does not exclude a prerogative relief.

One can therefore suggest with a degree of certainty that in Kenya an application for

prerogative orders may lie even where there is a right of appeal, and the existence of

one, depending on the circumstances of the case, for instance, the failure of the appeal

to provide a speedy, effective solution, or at all. H

The position in this country does not appear different. In Re Fazal Kassam (Mill) Ltd.

(already referred to), one of the objections raised was that the applicants were

precluded from seeking relief by way of mandamus since they had a right of appeal to

the Minister against the respondent's refusal to issue them with a coffee exporter's I

licence. It was stated by Sir Ralph Windham, C.J., at p. 1005, that:

1983 TLR p383

LUGAKINGIRA J

"... it is not the law that the court will always refuse mandamus when the

applicant could have A appealed. The matter is one of discretion, to be carefully and

judicially exercised, the position being simply that as stated in Halsbury's Law of

England (3rd Ed.) Vol. 11 at p. 107:

`The court will, as a general rule, and in the exercise of its discretion, refuse

an order of B mandamus, when there is an alternative specific remedy at law which

is not less convenient, beneficial and effective.'

The preliminary objection was overruled because of the circumstances of the case

which C included the fact that on previous occasions the applicants' appeals to the

Minister had on each occasion been rejected without reasons being given. While that

part of Sir Ralph Windham, C.J.'s decision was directed at mandamus only the same

position appears true for certiorari. In the same edition of Halsbury's Law it is stated

at p. 130 D that

"There is no rule to certiorari, as there is with mandamus, that it will lie only

where there is no E other equally effective remedy; and provided the requisite

grounds exist, certiorari will lie although a right of appeal has been conferred by

statute".

I think, with respect, that is a sound summary of the law. I would therefore say, from

the totality of these authorities, that the existence of the right of appeal and even the

F existence of an appeal itself, is not necessarily a bar to the issue of prerogative

orders. The matter is one of judicial discretion to be exercised by the court in the

light of the circumstances of each particular case. Where an appeal has proved

ineffective, and the requisite grounds exist, the aggrieved party may seek and the

court would be entitled to G grant, relief by way of prerogative orders. The simple

question we are therefore left with is whether such grounds exist in the intended

application. I am of the unfortunate view that they do not.

In the first instance, the applicant's appeal was only recently filed. There is therefore

no H question of delay nor is there any question of that procedure being exhausted.

Secondly, the appeal is potentially, if all goes well, more effective. It could result in

the goods, or their value, being restored to the applicant; but certiorari can only result

in quashing the decision to sell them and no more. Thirdly, and more seriously, the

goods have already been sold. I

1983 TLR p384

LUGAKINGIRA J

There is therefore no decision which can be arrested by certiorari. The same is true

of A the trading licence. It has already been cancelled. Certiorari cannot issue to

grant a new licence. In short, there are no grounds for the applicant to resile from the

appeal already filed by him and seek remedy by way of certiorari and, I apprehend

the court is B not expected to engage in a futile exercise. I have therefore come to

the sad conclusion that the intended application for certiorari is superfluous and this

court cannot exercise its discretion to entertain it.

The second leg of the second question is whether the court has jurisdiction to

entertain the intended application in view of its orders in Miscellaneous Criminal

Cause No. 14 of C 1981. Mr. Mbezi said the court had jurisdiction since in the

intended application the respondents are different. He referred me to no authority

and I could find none. I would venture to suggest, however, that the principle to be

followed in this regard is the same as where there is a right of appeal. There must

exist grounds upon which a second D application can be brought and this in my

view, cannot merely be the existence of other respondents. It has, I think, to be

demonstrated that the earlier application has proved ineffective. The applicant's

affidavit does not so state although there could be genuine apprehensions that the

first application would not deliver the goods. Presumably, the E better course would

have been to amend the first application and join the present respondents who,

apparently, became known at the hearing of that application. But to require the court

to exercise the same powers in parallel applications is not only an exercise in

confusion but something I cannot read in law or precedent.

There is yet another aspect to be considered. As far as I am aware certiorari, as with

F prohibition, may issue where an inferior tribunal has wrongly assumed jurisdiction

or has exceeded jurisdiction in the discharge of judicial functions. It was not

suggested, even remotely, that the Area Commissioner or the Kamati ya Ulinzi na

Usalama acted G as such tribunals or that they did so without or in excess of

jurisdiction.

This is not to say that they acted correctly. But indeed the decisions complained of do

not bear any judicial character. They appear to be purely administrative. It is stated

in Halsbury's Law (above, at pp. 134-135, that H

"Certiorari will issue to quash the determinations of any body of persons

having legal authority to determine questions affecting the right of subjects and

having the duty to act judicially. Certiorari lies only in respect of judicial, as

distinguished from administrative acts". I

1983 TLR p385

As just stated the Area Commissioner and the Kamati ya Ulinzi na Usalama appear A

to have acted, if true, in a purely administrative capacity and the applicant's affidavit

does not allege to the contrary. The intended application thus fails to disclose a prima

facie case for the intervention of this court. As stated by Biron, Ag. J., as he then was,

in Re Hirji Transport Service, cited earlier, there has to be a prima facie case before

leave B can be granted. There being no prima facie case and bearing in mind the

other conclusion I have reached earlier, I am satisfied that this application must fail.

C Leave refused.

1983 TLR p385

D