ADMINISTRATIVE LAW
BY SOLICITOR KATURA
ADMINISTRATIVE LAW
INTRODUCTION TO ADMINISTRATIVE LAW
Meaning of Administrative Law;Definition by Ivor Jennings
Ivor Jennings in his "The law and the constitution, 1959" provided the following definition of the
term "administrative law".
According to him, "administrative law is the law relating to the administrative authorities".
This is the most widely accepted definition, but there are two difficulties in this definition.
(1) It is very wide definition, for the law which determines the power and functions of
administrative authorities may also deal with the substantive aspects of such powers.
For example :- Legislation relations to public health services, houses, town and country planning
etc.. But these are not included within the scope and ambit of administrative law, and
(2) It does not distinguish administrative law from constitution law.
Definition by K. C. Davis
According to K. C. Davis, "Administrative law as the law concerning the powers and procedures of
administrative agencies, including especially the law governing judicial review of administrative
action".
Definition by Prof. Wade
According to Wade (Administrative Law, 1967) administrative law might be said "the law which
concerns administrative authorities as opposed to the others". Or “the law relating to the control of
government power.”
Definition by Griffith and Street
According to Griffith and Street, (Principles of administrative law, 1963), Administrative law is the
operation and control of administrative authorities, it must deal with the following three aspects :1. What are the limits of those powers?
2. What sort of power does the administration exercise?
3. What are the ways in which the administrative is kept within those limits?
NATURE & SCOPE(LIMITATION) OF ADMINISTRATIVE LAW
Nature of Administrative Law;Administrative Law is a branch of public law that deals with the powers of the Administrative
authorities, the manner in which powers are exercised and the remedies which are available to the
aggrieved persons, when those powers are abused by administrative authorities.
The Administrative process has come to stay and it has to be accepted as a necessary evil in all
progressive societies. Particularly in welfare state, where many schemes for the progress of the
society are prepared and administered by the government. The execution and implementation of
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
these programs may adversely affect the rights of the citizens. The actual problem is to reconcile
social welfare with rights of the individual subjects. The main object of the study of Administrative
law is to unravel the way in which these Administrative authorities could be kept within their limits
so that the discretionary powers may not be turned into arbitrary powers.
Scope;- Administrative Law as a law is limited to concerning powers and procedures of
administrative agencies. It is limited to the powers of adjudication or rule-making power of the
authorities. Thus, it is limited to:
 Establishment, organization and powers of various administrative bodies
 Delegated legislation - the Rule-making power of the authorities
 Judicial functions of administrative agencies such as tribunals
 Remedies available such as Writs, Injunction etc.
 Procedural guarantees such as the application of principles of Natural Justice
 Government liability in tort
 Public corporations
SOURCES OF ADMINISTRATIVE LAW
 The Constitution – Various administrative organs derive their powers and functions from
the Constitution, such organs include the president, Ministers, local government authorities
etc.
 The Statute – Most of administrative organs are statutory formed.
 Case law – These are decisions by the supreme courts of the land in administrative
disputes.
 Received laws – These include the common law principles, doctrine of equity and such
statutes of general application.
 Books – Books by prominent jurists and opinions from prominent jurists.
REASONS FOR THE GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW.
The following can be considered as the factors that gave ways to the development of administrative
law;1. A radical change in philosophy as to the role played by the state.
2. The judiciary process was inadequate to settling disputes, judicial system proved to be
inadequate to be able to solve multifarious increase in number of disputes.
e.g;- the disputes between employers and employees
3. The legislative process was also inadequate to meet all the needs of the community in
legislative matters.
4. Flexibility in the function of administrative organs.
5. The administrative authorities can avoid technicalities. Administrative law represent
functional rather than a theoretical and legalistic approach. The administrative tribunals are
not bound by the rules of evidence and procedure and they can take a practical view of
matter to decide complex problems.
CONSTITUTIONAL LAW & ADMINISTRATIVE LAW
Constitutional law is concerned with organization and the functions of the government at rest, while
the administrative law is concerned with the organizations and those functions in motions.
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
BASIC ADMINISTRATIVE PRINCIPLES
1. RULE OF LAW
A)Meaning- (also known as nomocracy) is the legal principle that law should govern a nation,
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this
sense, it stands in contrary to an autocracy, collective leadership, dictatorship, or oligarchy where
the rulers are held above the law (which is not necessary by definition but which is typical).
DICEY attributed the following three meanings to the said doctrine;
Supremacy of the law- The First meaning of the Rule of Law is that no man is punishable
or can lawfully be made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. “It implies
that a man may be punished for a breach of law and cannot be punished for anything else, no
man can be punished except for a breach of law. An alleged offence is required to be proved
before the ordinary courts in accordance with the ordinary procedure”.

Equality before the law- The Second meaning of the Rule of Law is that no man is above
law. Every man whatever be his rank or condition is subject to the ordinary law of the realm
and amenable to the jurisdiction of the ordinary tribunals.

Predominance of legal spirit- The Third meaning of the rule of law is that the general
principles of the constitution are the result of juridical decisions determining file rights of
private persons in particular cases brought before the Court.
B) Application of doctrine of rule of law
In England the doctrine of rule of law was applied in concrete cases, According to Wade if a man is
wrongful arrested by police he can file a suit for damages against them as if the police were private
individuals.
Cases;Wilkes v. Wood(1763) 19 St Tr
It was held that an action for damages of trespass was maintainable even if the action complained of
was taken in pursuance of the order of the minister.
C) Importance of doctrine of Rule of law.
1. Constraints(limitations) on Government Powers
In a society governed by the rule of law, the government and its officials and agents are subject to
and held accountable under the law. Modern societies have developed systems of checks and
balances, both constitutional and institutional, to limit the reach of excessive government power,
and to subject the government power, or ruler, to legal restraints
2. Absence of Corruption
The absence of corruption - conventionally defined as the use of public power for private gain - is
one of the hallmarks of a society governed by the rule of law, as corruption is a
manifestation(evidence or fact) of the extent to which government officials abuse their power or
fulfill their obligations under the law.
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
3. Open Government
Open government is essential to the rule of law. It involves engagement, access, participation, and
collaboration between the government and its citizens, and plays a crucial role in the promotion of
accountability.
4. Fundamental Rights
Under the rule of law, fundamental rights must be effectively guaranteed. A system of positive law
that fails to respect core human rights established under international law is at best “rule by law”.
Rule of law abiding societies should guarantee the rights embodied in the Universal Declaration of
Human Rights including the right to equal treatment and the absence of discrimination; the right to
life and security of the person; the right to the due process of the law; the freedom of opinion and
expression; the freedom of belief and religion; the absence of any arbitrary interference of privacy;
the freedom of assembly and association; and the protection of fundamental labor rights.
5. Human Security
Human security is one of the defining aspects of any rule of law society. Protecting human security,
mainly assuring the security of persons and property, is a fundamental function of the state.
6. Regulatory(control) Enforcement
Public enforcement of government regulations is pervasive in modern societies as a method to
induce conduct. A critical feature of the rule of law is that such rules are upheld and properly
enforced by authorities, particularly because public enforcement might raise the scope for
negligence and abuse by officials pursuing their own interest.
7. Civil Justice
In a rule of law society, ordinary people should be able to resolve their grievances(wrongs) and
obtain remedies in conformity with fundamental rights through formal institutions of justice in a
peaceful and effective manner, rather than resorting to violence or self-help.
8. Criminal Justice
An effective criminal justice system is a key aspect of the rule of law, as it constitutes the natural
mechanism to redress grievances and bring action against individuals for offenses against society.
9. Informal Justice
For many countries it is important to acknowledge the role played by traditional, or ‘informal’,
systems of law — including traditional, tribal, and religious courts, as well as community-based
systems — in resolving disputes. These systems often play a large role in cultures where formal
legal institutions fail to provide effective remedies for large segments of the population or when
formal institutions are perceived as foreign, corrupt, and ineffective.
D)The droit (right) of administratif
droit administratif' is a body of rules which determines the organization and duties of public
administrations and which regulates the relation of administration with the citizen of the states.
E) Modern concepts of rule of law
The New Delhi Congress or Declaration of Delhi was an international gathering of over 185
judges, lawyers, and law professors from 53 countries all over the world, united as the International
Commission of Jurists that took place in New Delhi, India in 1959. The theme of the New Delhi
Congress was "The Rule of Law in a Free Society". The Congress further developed the principles
and procedures underlying the Rule of Law as well as defining and clarifying the concept itself.
In preparation of the Congress, the Commission held a preparatory meeting in The Hague,
Netherlands on 7 and 8 July 1958, where the drafting of the Congress Working Paper on the Rule of
Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134 page paper was
based on information gathered in an international survey of lawyers and legal institutions conducted
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BY SOLICITOR KATURA
by the ICJ Secretariat in the course of 1957. The information gathered was divided into the
following sections:
 1. The Legislative and the Rule of Law
 2. The Executive and the Rule of Law
 3. Criminal Process and the Rule of Law
 4. The Judiciary and Legal Profession under the Rule of Law.
The Delhi Congress gave rise to three important elements in the concept of the Rule of Law.
 First, that the individual is possessed of certain rights and freedoms and that he is entitled
to protection of these rights and freedoms by the State;
 Second, that there is an absolute need for an independent judiciary and bar as well as for
effective machinery for the protection of fundamental rights and freedoms; and
 Third, that the establishment of social, economic and cultural conditions would permit
men to live in dignity and to fulfill their legitimate aspirations.
2. SEPARATION OF POWERS
The model was first developed in ancient Greece. Under this model, the state is divided into
branches, each with separate and independent powers and areas of responsibility so that the powers
of one branch are not in conflict with the powers associated with the other branches. The typical
division of branches is into a legislature, an executive, and a judiciary.
A)Antiquity( Historical background)
Aristotle first mentioned the idea of a "mixed government" or hybrid government in his work
Politics where he drew upon many of the constitutional forms in the city-states of Ancient Greece.
In the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a
mixed government according to Polybius (Histories, Book 6, 11-13).
B)Montesquieu's tripartite system
The term tripartite system is ascribed to French Enlightenment political philosopher Baron de
Montesquieu. In The Spirit of the Laws (1748), Montesquieu described the separation of political
power among a legislature, an executive, and a judiciary. Montesquieu's approach was to present
and defend a form of government which was not excessively centralized in all its powers to a single
monarch or similar ruler. He based this model on the Constitution of the Roman Republic and the
British constitutional system. Montesquieu took the view that the Roman Republic had powers
separated so that no one could usurp complete power. In the British constitutional system,
Montesquieu discerned a separation of powers among the monarch, Parliament, and the courts of
law.
Montesquieu did actually specify that "the independence of the judiciary has to be real, and not
apparent merely". "The judiciary was generally seen as the most important of powers, independent
and unchecked", and also was considered dangerous.
C) Importance of separation of power
1.Sharing Power and Checking One Another
The system of separation of powers divides the tasks of the state into three branches: legislative,
executive and judicial. These tasks are assigned to different institutions in such a way that each of
them can check the others. As a result, no one institution can become so powerful in a democracy as
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
to destroy this system.
2.Clear Distinctions
The separation of powers is also reflected in the fact that certain functions must not be exercised by
one and the same person. Thus, the Federal President cannot at the same time be a Member of the
National Council, or a judge who is appointed Minister or elected to be a Member of the National
Council must be temporarily suspended from his/her judicial duties.
3.The Legislative Power
The first of the three powers has the task of passing laws and supervising their implementation. It is
exercised by Parliament – i.e. the National and Federal Councils – and the Provincial Diets.
The implementation of laws is the task of the executive and judicial branches
4.The Executive Power
The executive branch has the task of implementing laws. It comprises the Federal Government, the
Federal President and all federal authorities including the police and the armed forces.
5.The Judicial Power (Judiciary)
Judges administer justice, viz. they decide disputes independently and impartially. It is their task to
ensure that laws are complied with. Judges cannot be deposed and cannot be assigned other
positions against their will.
D) Separation of powers in practice
i) In U.S.A- Separation of powers is a political doctrine originating in the writings of Montesquieu
in The Spirit of the Laws where he urged for a constitutional government with three separate
branches of government. Each of the three branches would have defined abilities to check the
powers of the other branches. This idea was called separation of powers. This philosophy heavily
influenced the writing of the United States Constitution, according to which the Legislative,
Executive, and Judicial branches of the United States government are kept distinct in order to
prevent abuse of power. This United States form of separation of powers is associated with a system
of checks and balances.
ii) In United Kingdom- Although the doctrine of separation of power plays a role in the United
Kingdom's constitutional doctrine, the UK constitution is often described as having "a weak
separation of powers" A. V. Dicey, despite its constitution being the one to which Montesquieu
originally referred. For example, in the United Kingdom, the executive forms a subset of the
legislature, as did—to a lesser extent—the judiciary until the establishment of the Supreme Court of
the United Kingdom. The Prime Minister, the Chief Executive, sits as a member of the Parliament
of the United Kingdom.
iii) In India - India follows a parliamentary system of government, which offers a clear separation
of powers. The judiciary branch is fairly independent of the other two branches. Executive powers
are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
other Secretaries. But practically the separation of powers does not exist between Legislature and
Executive, as Prime Minister is elected by Parliament it self. Hence in India, there is no separation
between Legislature and Executive. All three branches have "checks and balances" over each other
to maintain the balance.
E)Doctrine of Ultra vires This a Latin phrase meaning literally "beyond powers", and slightly less
literally (from interpolating the definite article "the", not found in Latin) "beyond [the] powers",
although its standard legal translation and substitute is "beyond power". If an act requires legal
authority and it is done with such authority, it is characterized in law as intra vires (nearly literally
"within [the] powers", after interpolating "the"; standard legal translation and substitute, "within
power"). If it is done without such authority, it is ultra vires. Acts that are intra vires may
equivalently be termed "valid" and those that are ultra vires "invalid".
CLASSIFICATION OF ADMINISTRATIVE ACTIONS
The administrative law has classified actions of the administration into three, namely,
“administrative”, “legislative”, “judicial” or “quasi- judicial”. Although attempts have been made to
avoid such classification for reasons of practically vague distinctions amongst them. However, this
exercise of labeling the functions cannot be avoided completely and requires a coordinated and
consistent working of these three primary functions.
Just as the government of a country is divisible into three functional components, viz., Legislative,
Judicial and Executive, so are the powers conferred on the Administration, which are classified
into:(i) Legislative Power: which in administrative law parlance is known as Delegated Legislation.
Legislation might be defined as the making of general rules to govern future conduct (Public Acts
of the Parliament)
(ii) Adjudicative, power which is generally characterized as quasi-judicial or adjudicative power.
Administration is considerably more difficult to define. It may be taken to mean the application of
general rules to particular cases by the making of some order or some decision or by performing
some action.
(iii) Administrative power, which is non-legislative and non-adjudicative in nature. The central
case of judicial function is the final and binding resolution of disputes as to facts, or as to the
existences or the scope of legal rights or duties, by means of finding facts deciding what the law is
and applying the law to the facts.
DELEGATED LEGISLATION
Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers delegated from a
legislature by enactment of primary legislation; the primary legislation grants the executive agency
power to implement and administer the requirements of that primary legislation. It is law made by a
person or body other than the legislature but with the legislature's authority. The power to create
delegated legislation is limited to making regulation that is incidental to administering the primary
legislation. Otherwise it will be considered as invalid or ultra vires.
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
Delegated legislation, also referred to as secondary legislation, is legislation made by a person or
body other than Parliament. Parliament, through an Act of Parliament, can permit another person or
body to make legislation. An Act of Parliament creates the framework of a particular law and tends
only to contain an outline of the purpose of the Act
Reasons for delegated legislation
1. Pressure upon parliament time
It avoids overloading the limited Parliamentary timetable as delegated legislation can be amended
and/or made without having to pass an Act through Parliament, which can be time consuming.
Changes can therefore be made to the law without the need to have a new Act of Parliament and it
further avoids Parliament having to spend a lot of their time on technical matters, such as the
clarification of a specific part of the legislation.
2. Technicality of experts of certain matters
Sometimes, subject matter of legislation is technical in nature. So, assistance of experts is required.
Members of parliament may be the best politicians but they are not expert to deal with highly
technical matters. These matters are required to be handled by experts. Here, the legislative power
may be conferred on experts to deal with the technical problems. i.e. gas, atomic energy, drugs,
electricity etc.
3. Emergences
In times of emergency, quick action is required to be taken. Delegated legislation can deal with an
emergency situation as it arises without having to wait for an Act to be passed through Parliament
to resolve the particular situation. E.g;- in times of war and in cases of epidemics(Sudden disease),
floods, inflation(increase and fall of price), economic depression(decline) and other national
emergencies, the executive is vested with extremely wide powers to deal with the situation.
4.Experiment
The practice of delegated legislation enables the executive to experiment. This method permits
rapid utilization of experience and implementation of necessary changes in application of the
provisions in the light of such experience.
For example, in road traffic matters, an experiment may be conducted and in the light of its
application necessary changes could be made. The advantage of such a course is that it enables the
delegate authority to consult interests likely to be affected by a particular law, make actual
experiments when necessary and utilize the result of his investigation and experiments in the best
possible way. If the rules and regulations are found to be satisfactory, they can be implemented
successfully. On the other hand, if they are found to be defective, the defects can be cured
immediately.
5. Flexible situations
Delegated legislation can be used to cover a situation that Parliament had not anticipated at the time
it enacted the piece of legislation, which makes it flexible and very useful to law-making. Delegated
legislation is therefore able to meet the changing needs of society and also situations which
Parliament had not anticipated when they enacted the Act of Parliament. E.g. bank rate, police
regulations, export and import, foreign exchange etc.
ADMINISTRATIVE LAW
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6. Complexity of modern administrative law
The complexity of modern administration and the expansion of the functions of the state to the
economic and social sphere have rendered it is necessary to resort to new forms of legislation and to
give wide powers to various authorities on suitable occasions. In a country like Bangladesh, where
control and regulation over private trade, business or property may be required to be imposed, it is
necessary that the administration should be given ample power to implement such policy so that
immediate action can be taken.
FORMS OF DELEGATED LEGISLATION
1-Title based classification
Rule: For the definition see the General Clauses Act 1897
Regulation: An instrument by which decisions, orders and acts of government are made known to
the public.
Order: in general order refers to Administrative Rule making.
Bye-laws: Rules made by semi-governmental authorities established under the Acts of Legislature
Directions: Expression of Administrative Rule making under the authority of law
Scheme: It is the situation where the law authorizes the administrative agency to lay down a
framework.
2-Distinction based classification
Subordinate legislation: The process consist of discretionary elaboration of rules and regulations
Conditional Legislation: The statute that provides control but specifies that they are to go in to
effect only when a given administrative authority finds the existence of conditions defined in the
statute itself.
3.Purpose based classification
DELEGATED LEGISLATION IN USA
Under constitutional separation-of-powers provisions, laws are enacted by the legislature,
administered by the executive and interpreted by the judiciary.
In theory, there is no delegated legislation in United States because it is not written in the
constitution and also there is theory of separation of powers, In constitutional and administrative
law, the principle delegata potestas non potest delegari (Latin) states that "no delegated powers can
be further delegated". Alternatively, it can be stated delegatus non potest delegare, "one to whom
power is delegated cannot himself further delegate that power" This principle is present in several
jurisdictions such as that of the United States, the United Kingdom and India
In practice there is delegated legislation in United States where by the house of congress delegates
power to its provinces or federal governments to make laws
Case
National Broadcasting Co. v. United States, 319 U.S. 190 (1943)
Facts
The Federal Communications Commission (FCC) established Chain Broadcasting Regulations for
pertaining to associations between broadcasting networks and their affiliated stations, in 1941,
which specifically governed the licensing and content of chain broadcasting stations. NBC sued to
enjoin the enforcement of the regulations. The United States District Court for the Southern District
of New York dismissed the complaint, ruling for the government, and NBC appealed.
Held
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Supreme Court of the United States held on May 10, 1943 that the Federal Communications
Commission had the power to issue regulations pertaining to associations between broadcasting
networks and their affiliated stations, otherwise known as "chain networks." The case is important
in the development of American administrative law.
The Supreme Court ultimately affirmed the dismissal of the complaint, ruling that the government
had the power to enact and enforce the regulations in question.
Lichter v. United States 334 U.S. 742 (1948)
Facts:
Petitioners(applicants) challenged that the Renegotiation Act unconstitutionally attempted to
delegate legislative power to administrative officials. Renegotiations Act authorized the government
to determine and recapture excessive profits by private contractors during war time. Petitioners
brought suit challenging the constitutionality of this legislation, arguing improper delegation
because the legislation contained too slight a definition of legislative policy and standards.
Issue: Whether Congress can delegate its war making authority to administrative agencies for
determining “excessive profits” during wartime.
Holding:
Yes. The Supreme Court held that the Renegotiation Act and the Second Renegotiation Act were
constitutionally sound because Congress had the express authority, and the laws were necessary and
proper for carrying into execution the war powers and especially its power to support armies.
The court held that petitioner taxpayers were required to pay excessive profits to the United States
under the Renegotiation Act and the Second Renegotiation Act because Congress had authority to
recover excessive profits as part of the war powers granted by the U.S. Constitution. Further,
petitioners were not entitled to a redetermination of the tax owed by the tax court because
petitioners failed to petition the court for a redetermination.
Panama Refining Co. v. Ryan, (1935),
Facts
Also known as the Hot Oil case, was a case, in which the United States Supreme Court ruled that
the Roosevelt Administration's prohibition of interstate and foreign trade in petroleum goods
produced in excess of state quotas, the "hot oil" orders adopted under the 1933 National Industrial
Recovery Act, was unconstitutional.
The ruling was the first of several that overturned key elements of the Administration's New Deal
legislative program. The relevant section 9(c) of the NIRA was found to be an unconstitutional
delegation of legislative power,as it permitted presidential interdiction of trade without defining
criteria for the application of the proposed restriction.
The finding thus differed from later rulings that argued that Federal government action affecting
intrastate production breached the Commerce Clause of the Constitution;
Held
n Panama v. Ryan, the Court found that Congress had violated the nondelegation doctrine by
vesting the President with legislative powers without clear guidelines, giving the President
enormous and unchecked powers. The omission of Congressional guidance on state petroleum
production ceilings occasioned the adverse ruling because this omission allowed the executive to
assume the role of the legislature. Justice Cardozo dissented, claiming that the guidelines had been
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sufficient.
Delegated legislation In Tanzania
There is no delegated legislation theoretically but in practice there is delegated legislation.
EXCESSIVE DELEGATION
Delegation of powers means those powers, which are given by the higher authorities to the lower
authorities to make certain laws, i.e., powers given by the legislature to administration to enact laws
to perform administration functions
Delegated legislation shouldn't be excessive because there are some mandatory power which can
not be delegated.
Permissible delegated legislation;1. Commencement(the beginning of something.)
Several statues contain an 'appointed day' clause, which empowers the government to appoint a day
for the act to come into force. In such cases, the operation of the act depends on the decision of the
government.
2. Supplying details:
If the legislative policy is formulated by the legislature, the function of supplying details may be
delegated to the executive for giving effect to the policy. What is delegated here is an ancillary
function in aid of the exercise of the legislative function.
3. Modifications:
Sometimes, provisions are made in the statute authorizing the executive to modify the existing
statute before application. This is really a drastic power as it amounts to an amendment of the act,
which is a legislative act, but sometimes, this flexibility is necessary to deal with the local
conditions.
4. Prescribing punishments:
In some cases the legislature delegates to the executive the power to take punitive actions.
5. Inclusion:
Sometimes, the legislature passes an Act and makes it applicable, in the first instance, to some areas
and classes of persons, but empowers the Government to extend the provisions thereof to different
territories, persons or commodities, etc. e.g., the Transfer of Property Act, 1882 was made
applicable to the whole of India except certain areas, but the Government was authorized to apply
the provisions of the Act to those areas also.
6. Exclusion:
There are some statutes which empower the Government to exempt from their operation certain
persons, territories, commodities, etc. E.g., Section 36 of the Payment of Bonus Act, 1965
empowers the Government to exempt any establishment or a class of establishments from the
operation of the Act. Such provision introduces flexibility in the scheme of the legislation. The
Legislature which is burdened with heavy legislative work is unable to find time to consider in
detail hardships and difficulties likely to result in enforcing the legislation.
7. Suspension:
Some statutes authorize the Government to suspend or relax the provisions contained therein. e.g.
under Section 48(1) of the Tea Act, 1953, the Central Government is empowered under certain
circumstances to suspend the operation of all or any of the provisions of the said Act.
8. Application of existing laws:
Some statutes confer the power on the executive to adopt and apply statutes existing in other States
without modifications (with incidental changes) to a new area. There is no unconstitutional
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delegation in such cases, as the legislative policy is laid down in the statute by the competent
legislature.
9. Framing of Rules:
A delegation of power to frame rules, bye-laws, regulations, etc. is not unconstitutional, provided
that the rules, bye-laws and regulations are required to be laid before the legislature before they
come into force and provided further that the legislature has power to amend, modify or repeal
them.
Impermissible Delegated Legislations
The following functions, on the other hand, cannot be delegated by the Legislature to the
Executive:1.Essential legislative functions:
Even though there is no specific bar in the Constitution of India against the delegation of legislative
power by the legislature to the executive, it is now well-settled that essential legislative functions
cannot be delegated by the legislature to the executive. In other words, legislative policy must be
laid down by the legislature itself and by entrusting this power to the executive, the legislature
cannot create a parallel legislature.
2.Repeal of law:
Power to repeal a law is essentially a legislative function, and therefore, delegation of power to the
executive to repeal a law is excessive delegation and is ultra vires.
3.Modification:
Power to modify the Act in its important aspects is an essential legislative function and, therefore,
delegation of power to modify an Act without any limitation is not permissible.
4.Exemption: (state of being free from an obligation)
The aforesaid principle applies in case of exemption also, and the legislature cannot delegate the
power of exemption to the executive without laying down the norms and policy for the guidance of
the latter.
5.Removal of difficulties:
Under the guise of enabling the executive to remove difficulties, the legislature cannot enact a
Henry VIII clause and thereby delegate essential legislative functions to the executive, which could
not otherwise have been delegated.
6.Retrospective operation: (looking back on)
The legislature has plenary power of law making and in India, Parliament can pass any law
prospectively or retrospectively subject to the provisions of the Constitution. But this principle
cannot be applied in the case of delegated legislation.
7.Future Acts:
The legislature can empower the executive to adopt and apply the laws existing in other States, but
it cannot delegate the power by which the executive can adopt the laws which may be passed in
future, as this is essentially a legislative function.
8.Imposition of Taxes:
The power to impose a tax is essentially a legislative function. Under Article 265 of the
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Constitution no tax can be levied or collected save by authority of law, and here ‘law’ means law
enacted by the competent legislature and not made by the executive.
9.Ouster of jurisdiction of courts:
The legislature cannot empower the executive by which the jurisdiction of courts may be ousted.
This is a pure legislative function.
10.Offences and Penalty:
The making of a particular act into an offence and prescribing punishment for it is an essential
legislative function and cannot be delegated by the legislature to the executive. However, if the
legislature lays down the standards or principles to be followed by the executive in defining an
offence and provides the limits of penalties, such delegation is permissible.
SAFE GUARD AND CONTROL
JUDICIAL CONTROL
This is the administration of justice, where by judiciary or court can control two things;1. The government
2. The legislature
The court can check ;1. the abuse of power
2. the validity of those power.
Substantive law is the statutory, or written law, that defines rights and duties, such as crimes and
punishments (in the criminal law), civil rights and responsibilities in civil law.
JUDICIAL REVIEW
Meaning of Judicial review.
The power which is given to the high court of law to review the actions of the executive and
legislative branches is called judicial review.
Marbury v. Madison,
Facts
On his last day in office, President John Adams named forty-two justices of the peace and sixteen
new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was
an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took
office.
The commissions(mission or job) were signed by President Adams and sealed(secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author
of this opinion), but they were not delivered(provided or furnished) before the expiration of
Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they
were invalid because they had not been delivered by the end of Adams’s term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ(court order) of mandamus to
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compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The
Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of
mandamus “…to any courts appointed, or persons holding office, under the authority of the United
States.
Held
It was held that Marbury has a right to the commission, The Supreme Court has the authority to
review acts of Congress and determine whether they are unconstitutional and therefore void. The
law grants Marbury a remedy as the very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever he receives an injury. One of the first
duties of government is to afford that protection.
JUDICIARY REVIEW IS OF THREE WAYS;1. Legislative action
2. Decision action
3. Administrative action
SCOPE & NATURE OF JUDICIARY REVIEW
1.
2.
3.
4.
5.
6.
The rule of law
The legislation
The justiciable
The reasonableness
The abuse
The excessive of powers
GROUNDS OF JUDICIARY REVIEW
1.No jurisdiction
The question of whether an authority has jurisdiction to make a decision or perform an action is of
particular importance in judicial review. The power of an authority or a decision-maker is
usually confined to a strictly defined area by its governing statute, because it is parliament
through the statute that gives them that power.
The question of whether or not a ground of review constitutes a “jurisdictional error” can have
particular significance if the Act under which the decision was made contains a “privative
clause” that attempts to exclude judicial review. The High Court has held that privative clauses
are not always effective to exclude judicial review for jurisdictional errors. Further, most errors
of an administrative tribunal will be jurisdictional if they are of any substance. There is caselaw
on this (see Administrative Power and the Law (details in “Further reading”, below) for further
discussion on this topic).
2.Error of law
Error of law is a common judicial review ground. It occurs when the decision-maker has
misunderstood or misapplied a statute, for example, by applying the wrong criteria, or asking
the wrong question. In practice this often occurs because the decision-maker has failed to read
or understand the statute. In addition, where policy exists, decision-makers can fail to realize its
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limitations, sometimes believing that the policy empowers them, rather than the law.
3. Improper exercise of power
A court will interfere with an administrative decision or question if it can be shown to amount to an
improper exercise of power. There is a large amount of case law on the various grounds for
such an attack.
Following is a summary of these grounds. If you think one of these grounds may be available you
should investigate the applicable law further.
4. Unreasonableness
Another ground of judicial review is that an action or decision was so unreasonable that no
reasonable body would have reached it. This is often called “manifest unreasonableness”, or
“Wednesbury unreasonableness” (after an old English case: Associated Provincial Picture
Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). This is a difficult ground; it is not
enough to convince the judge that they would have made the decision differently, it must be
shown that the decision was an absurd or irrational one. A decision-maker may have acted
unreasonably because highly significant factors were not given proper weight or because their
opinion could not have been reasonably formed on the information available (Re Minister for
Immigration and Multicultural Affairs; Ex parte Eshetu [1999] HCA 21). This ground of
review has given rise to a number of recent cases, but the general principle remains that usually
this ground is a last resort. If it is clear that the decision-maker erred, it would usually be
evident as another ground of review, for example, as an error of law or failure to take account
of a relevant consideration.
5. Bad faith
Another ground of attack on administrative actions that appear on their face to be proper is that of
“bad faith”. Here, it is necessary to show the decision was affected by corruption, bribery,
dishonesty or similar malpractice. The great difficulty, of course, is to obtain evidence to prove
what is considered by the courts to be a very grave allegation against the conduct of
government.
6. Improper delegation
The usual cases where improper delegation has been made out are those where a body responsible
for a decision decided to let its judgment be formed by a body over which it had no control. For
example, it may be improper delegation if the Secretary of a Department left a matter for which
they were responsible to an independent agency to decide. If guidelines had been laid down,
however, and the Secretary had only treated the independent agency’s views as
recommendatory, there may be no ground for judicial review.
Case;A.G V. FURMUCH(1927)
Facts
A person who was a teacher with very big stomach was dismissed from school due to his big
stomach.
Held
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It was held that the action was very in law
DOCTRINE OF ESTOPPEL
In law, the doctrine of estoppel is a legal principle by which a claimant may be prevented from
asserting a legal right or depending on a set of facts to support a claim if that claimant has said or
done something that contradicts his current claim. This doctrine attempts to avoid injustice or harm
to one party due to inconsistencies of another party. Although there are several forms of estoppel, a
doctrine of estoppel generally involves a promise or representation by one party that influences the
behavior of the second party, who relies on the veracity of the promise or representation. For
example, if a dog breeder agrees to give a customer a free dog, he cannot make a claim for the price
of the dog six months later. The doctrine of estoppel prevents him from asserting his otherwise
legitimate right to payment for the dog due to the representation that he made to the customer that
the dog would be free.
PUBLIC ACCOUNTABILITY
The obligations of agencies and public enterprises who have been trusted with the public resources,
to be answerable to the fiscal and the social responsibilities that have been assigned to them. These
companies and agencies need to be accountable to the public at large and carry out the duties asked
of them responsibly.
JUDICIAL REVIEW
Judicial Review - Is the power of which is given to the high court of law to review the actions of the
executive, judicial and legislative branches or is the special elite in public law by which the high
court exercises supervision over inferior courts, tribunals and other public bodies. Judicial review is
one of the checks and balances in the separation of powers: the power of the judiciary to supervise
the legislative and executive branches.
Case;Marbury v. Madison,
Facts
On his last day in office, President John Adams appointed two justices of the peace and sixteen new
circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an
attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took
office.
The commissions(mission or job) were signed by President Adams and sealed(secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author
of this opinion), but they were not delivered(provided or furnished) before the expiration of
Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they
were invalid because they had not been delivered by the end of Adams’s term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ(court order) of mandamus to
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The
Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of
mandamus “…to any courts appointed, or persons holding office, under the authority of the United
States.
Held:- It was held that Marbury has a right to the commission, The Supreme Court has the
authority to review acts of Congress and determine whether they are unconstitutional and therefore
void. The law grants Marbury a remedy as the very essence of civil liberty certainly consists in the
right of every individual to claim the protection of the laws whenever he receives an injury. One of
the first duties of government is to afford that protection.
LEGAL PROVISION IN THE CONSTITUTION OF TANZANIA
Article 30 of constitution of United Republic of Tanzania (cap. 2)
(3) Any person claiming that any provision in this Part of this Chapter or in any law concerning his
right or duty owed to him has been, is being or is likely to be violated by any person anywhere in
the United Republic, may institute proceedings for redress in the High Court.
Article 64 of constitution of United Republic of Tanzania (cap. 2)
(5) Without prejudice(injury, harm) to the application of the Constitution of Zanzibar in accordance
with this Constitution shall have the force of law in the whole of the United Republic, and in the
event any other law conflicts with the provisions contained in this Constitution, the Constitution
shall prevail and that other law, to the extent of the inconsistency with the Constitution, shall be
void.
Section 17 of the law reform (fatal accidents and miscellaneous Provisions) act
(1) The High Court shall not, whether in the exercise of its civil or criminal jurisdiction, issue any
of the prerogative writs of mandamus, prohibition or certiorari.
(2) In any case where the High Court would but for subsection (1) have had jurisdiction to order the
issue of a writ of mandamus requiring any act to be done or a writ of prohibition prohibiting any
proceedings or matter, or a writ of certiorari removing any proceedings or matter into the High
Court for any purpose, the Court may make an order requiring the act to be done or prohibiting or
removing the proceedings or matter, as the case may be.
(3) No return shall be made to any such order and no pleadings in prohibition shall be allowed, but
the order shall be final, subject to the right of appeal therefrom conferred by subsection (5).
THE ROLE OF THE COURT IN CONTROLLING ADMINISTRATIVE POWER
Judiciary review is one of the controversial(disputable, debatable) issues in administrative law. This
is because of judiciary review is characterized by continuous tension between opposing idea of the
government and the idea of judicial control. The tension ensures that even the blandest case of
judicial review is in a notably political in a world sense.
BASES OF JUDICIAL REVIEW
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1. Ultra vires
Is a Latin phrase meaning "beyond the powers". If an act requires legal authority and it is done with
such authority, it is characterized in law as intra vires ("within the powers"). If it is done without
such authority, it is ultra vires. Acts that are intra vires may equivalently be termed "valid" and
those which are ultra vires "invalid".
Ultra Vires acts can also be defined as any excessive use of corporate power that has been granted.
These acts cannot be legally defended in court. They will, in fact, leave the corporation vulnerable
to lawsuits by employees or other parties
Relevant case:Marbury v. Madison, 1
Facts
On his last day in office, President John Adams appointed two justices of the peace and sixteen new
circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an
attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took
office.
The commissions (mission or job) were signed by President Adams and sealed (secured) by acting
Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author
of this opinion), but they were not delivered (provided or furnished) before the expiration of
Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they
were invalid because they had not been delivered by the end of Adams’s term.
William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury
applied directly to the Supreme Court of the United States for a writ (court order) of mandamus to
compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The
Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of
mandamus “…to any courts appointed, or persons holding office, under the authority of the United
States.
Held
It was held that Marbury has a right to the commission, The Supreme Court has the authority to
review acts of Congress and determine whether they are unconstitutional and therefore void. The
law grants Marbury a remedy as the very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever he receives an injury. One of the first
duties of government is to afford that protection.
2. Rule of law
The rule of law is the legal principle that law should govern a nation, as opposed to being governed
by arbitrary decisions of individual government officials. It primarily refers to the influence and
authority of law within society, particularly as a constraint upon behavior, including behavior of
government officials.2 The concept was familiar to ancient philosophers such as Aristotle, who
1
2
5 U.S. 137, 1 Cranch 137, 2 L. Ed. 60 (1803)
“Civil Affairs and Rule of Law”, Dudley Knox Library
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wrote "Law should govern".3
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this
sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where
the rulers are held above the law.
The rule of law is an ambiguous term that can mean different things in different contexts. In one
context the term means rule according to law. No individual can be ordered by the government to
pay civil damages or suffer criminal punishment except in strict accordance with well-established
and clearly defined laws and procedures. In a second context the term means rule under law. No
branch of government is above the law, and no public official may act arbitrarily or unilaterally
outside the law. In a third context the term means rule according to a higher law. No written law
may be enforced by the government unless it conforms with certain unwritten, universal principles
of fairness, morality, and justice that transcend human legal systems.
Rule of law has three major meanings;a) Supremacy of the law- The First meaning of the Rule of Law is that 'no man is punishable or
can lawfully be made to suffer in body or goods except for a distinct breach of law' established
in the ordinary legal manner before the ordinary courts of the land. It implies that a man may be
punished for a breach of law and cannot be punished for anything else. No man can be punished
except for a breach of law. An alleged offence is required to be proved before the ordinary courts in
accordance with the ordinary procedure.
Article.107B. Independence of the Judiciary
In exercising the powers of dispensing justice, all courts shall have freedom and shall be required
only to observe the provisions of the Constitution and those of the laws of the land.
b) Equality before the law- The Second meaning of the Rule of Law is that 'no man is above the
law'. Every man whatever be his rank or condition is subject to the ordinary law of the realm and
amenable to the jurisdiction of the ordinary tribunals.
Article.13.-Equality before the law
(1) All persons are equal before the law and are entitled, without any discrimination, to protection
and equality before the law.
c) Predominance of legal spirit- The Third meaning of the rule of law is that the 'general
principles of the constitution are the result of judicial decisions' determining file rights of
private persons in particular cases brought before the Court.
Article 107A Authority of dispensing justice
(1) The Judiciary shall be the authority with final decision in dispensation of justice in the United
Republic of Tanzania.
(2) In delivering decisions in matters of civil and criminal matters in accordance with the laws, the
court shall observe the following principles, that is to say (a) impartiality to all without due regard to ones social or economic status;
3
Aristotle,Politics 3.16
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(b) not to delay dispensation of justice without reasonable ground;
(c) to award reasonable compensation to victims of wrong doings committed by other persons, and
in accordance with the relevant law enacted by the Parliament;
(d) to promote and enhance dispute resolution among persons involved in the disputes.
(e) to dispense justice without being tied up with technicalities provisions which may obstruct
dispensation of justice.
3. Common law (also known as case law or precedent) is law developed by judges through
decisions of courts and similar tribunals that decide individual cases, as opposed to statutes adopted
through the legislative process or regulations issued by the executive branch.4
A "common law system" is a legal system that gives great precedent weight to common law,5 so
that consistent principles applied to similar facts yield similar outcomes.6 The body of past common
law binds judges that make future decisions, just as any other law does, to ensure consistent
treatment. In cases where the parties disagree on what the law is, a common law court looks to past
precedential decisions of relevant courts.
GROUNDS OF JUDICIAL REVIEW
In this the following case Lord Diplock identified three broad grounds for judicial review namely
Illegality, Irrationality and Procedural impropriety;Council of Civil Service Unions v. Minister of State for Civil Service. 7
Facts
The Government Communications Headquarters (GCHQ) is a British intelligence agency that
provides signals intelligence to the British government and armed forces. Prior to 1983 its existence
was not acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal
in 1983, the organisation became known to the public, and the government of Margaret Thatcher
decided a year later that employees would not be allowed to join a trade union for national security
reasons. The Minister for the Civil Service is a position held ex officio by the Prime Minister.
This was enforced through an Order in Council, an exercise of the Royal Prerogative (rights,
remedies). Despite an extensive publicity campaign by trade unions, the government refused to
reverse its decision, instead offering affected employees the choice between £1,000 and
membership of a staff association or dismissal. Those employees dismissed could not rely on an
industrial tribunal, as they were not covered by the relevant employment legislation. As such, the
Council of Civil Service Unions decided judicial review was the only available route.
The decision to ban workers at GCHQ from trade union membership had been taken following the
meeting of a select group of ministers and the prime minister rather than the full Cabinet. This is not
4
Lloyd Duhaime. "Common Law Legal Definition".
5
Washington (State) Probate, s.v. "common law", 8 Dec. 2008:,
6
Charles Arnold-Baker, The Companion to British History, s.v. "English Law" (London:
Loncross Denholm Press, 2008), 484.
7
(1985) AC 374
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unusual, even in relation to high-profile decisions: a decision was similarly taken to authorise the
Suez operation of 1956 and the decision to transfer the ability to set interest rates to the Bank of
England in 1997
Held;- It was held that the employees of GCHQ had a right to consultation, and that the lack
of consultation made the decision invalid.
In Court of Appeal it was held that judicial review could not be used to challenge the use of the
Royal Prerogative(rights). They decided that as the determination of national security issues is an
executive function and it would be inappropriate for the courts to intervene.
In Tanzania, the three mentioned grounds above for judicial review are the one practiced here as in
the case of
Lausa Alfan Salum and 116 others v. Minister for Lands Housing Urban Development and
National Housing Corporation. 8
And he had this to say:“Broadly speaking, prerogative orders of certiorari and Prohibition may be issued in certain cases,
either to quash a decision made in the course of performing a public duty or to prohibit the
performance of a public duty, where the injured party has a right to have anything done, and has no
other specific means of, either having the decision quashed or the performance of the duty
prohibited, when the obligation arises out of the official status of the party or public body
complained against ....had an imperative legal duty of public nature which they had to perform in
their official capacity. In my considered view, any of their actions or decisions is challenge-able;firstly, if it is tainted with illegality, that is, the power exercised is ultra vires and contrary to the
law. Secondly, if it is tainted with irrationality, that is, the action or decision is unreasonable in
that it is so outrageous in its defiance of logic or of accepted moral standards that no sensible
person who had rightly applied his mind to the matter to be acted upon or to be decided could have
thus acted or decided.
Thirdly, if the action or decision is tainted with procedural impropriety, that is, failure to observe
basic rules.”
1. Illegality, Error Of Law Or Excessive Jurisdiction.
This means the power exercised is ultra vires and contrary to the law. In principle judicial
review is limited to a review of the lawfulness or legality of a decision or action by a public body,
the court however does not review the merits of a decision, courts ensure that public bodies act
legally within their powers.
i.e. intra vires and the principles of natural justice are observed in making decisions by these
bodies.9
Illegality is extended to include:3. Excessive jurisdiction,- Excess of Jurisdiction is a court's acting beyond the limits of its
power, usually. in one of three ways: (1) when the court has no power to deal with the kind
of matter at issue, (2) when the court has no power to deal with the particular person
concerned, or (3) when the judgment or order issued is of a kind that the court has no power
8
9
1992 TLR 293 (HC)
As per Laws J in the case of R v. Secretary of State ex p Mahmood [2001]
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to issue.
4. Errors of law,- It occurs when the decision-maker has misunderstood or misapplied a statute,
for example, by applying the wrong criteria, or asking the wrong question. In practice this
often occurs because the decision-maker has failed to read or understand the statute
5. failure to fulfill a statutory duty, acting for an improper purpose, delegating discretionary
powers unless permitted by law, failing to take into account all relevant considerations,
fettering discretion, and interference with fundamental rights.
Error of law simply means any misdirection in law that would render the relevant decision ultra
vires and a nullity. For example in the case of;Anisminic Ltd v Foreign Compensation Commission10
Facts
As a result of the Suez Crisis (difficulty, danger) some mining properties of the appellant Anisminic
located in the Sinai peninsula were seized (grabbed) by the Egyptian government before November
1956. The appellants then sold the mining properties to an Egyptian government-owned
organisation called TEDO in 1957.
In 1959, a piece of subordinate( lower in rank) legislation was passed under the Foreign
Compensation Act 1950 to distribute compensation paid by the Egyptian government to the UK
government with respect to British properties it had nationalised. The appellants claimed that they
were eligible (entitled) for compensation under this piece of subordinate legislation, which was
determined by a tribunal (the respondents in this case) set up under the Foreign Compensation Act
1950.
The tribunal, however, decided that the appellants were not eligible for compensation, because their
"successors in title" (TEDO) did not have the British nationality as required under one of the
provisions of the subordinate legislation.
Issues;4. Whether the tribunal had made an error of law in construing the term "successor of title"
under the subordinate legislation.
5. Even if the tribunal had made an error of law, the House of Lords had to decide whether or
not an appellate court had the jurisdiction to intervene in the tribunal's decision. Section 4(4)
of the Foreign Compensation Act 1950 stated that:
"The determination by the commission of any application made to them under this Act shall
not
be called into question in any court of law". This was a so-called "ouster clause".
Held;- By a 3-2 majority, the House of Lords decided that section 4(4) of the Foreign
Compensation Act did not preclude the court from inquiring whether or not the order of the tribunal
was a nullity, and accordingly it decided that the tribunal had misconstrued (misinterpret) the
legislation (the term "successor in title"), and that the determination by the defendant tribunal that
the appellant did not qualify to be paid compensation was null, and that they were entitled to
have a share of the compensation fund paid by the Egyptian government.
10
[1969] 2 AC 147
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Made it clear that all errors of law are now subject to judicial review and thus cleared doubt as
whether
errors of law by an inferior court, or tribunal or public authority „within jurisdiction‟ (which were
not reviewable) could be subject to review.
In Tanzania Illegality is well explained in the case of;Said Juma Muslim Shekimweri v Attorney-General11
Facts
Where the applicant sought an order of certiorari to bring up and quash a decision of the President
of the United Republic `retiring' the applicant, an immigration officer, in the public interest. It
appeared that the applicant had been employed by the Government of Tanzania for some years
without having been subjected to any disciplinary sanction. The applicant had read a newspaper
report of his dismissal for allegedly receiving bribes. About two months later the applicant received
a letter informing him of his retirement.
Held:- The common law principle that a civil servant was dismissible at pleasure of the President
was not part of the law of Tanzania; That the letter informing the applicant of his retirement cited
provisions of law which were incompatible and this had caused the applicant considerable
embarrassment; Standing Order F35 which provided that all appointments were at the pleasure of
the President was invalid as it was in conflict with the provisions of art. 22 and 36(2) of the
Constitution; The only legislative provision which permitted the compulsory retirement was
paragraph (d) of section 8 of the Ordinance which would be utilized only for the purpose of
facilitating improvements in the organization of the department to which the civil servant belonged.
It was clear that the applicant's removal had not been sought on these grounds.
Sheikh Mohammed Nassor Abdallah v. Reganal police commander of Dar es salaam (1985)
TLR
2. Irrationality
This means the action or decision is unreasonable in that it is so outrageous(excessive), Unlike
illegality and procedural impropriety, the courts under this head look at the merits (the strict legal
right) of the decision, rather than at the procedure by which it was arrived at or the legal basis on
which it was founded. The question to ask is whether the decision "makes sense". In many
circumstances listed under "illegality", the decision may also be considered irrational.
Irrationality is extended to include;-Unreasonableness, Failure to exercise discretion, Irrelevant
consideration, Mala-fide (bad faith), Fettering discretion, Acting under dictation. whereby is the
criterion of fairness and justice in statutory interpretation processes, especially in constitutional law,
Proportionality exists as a ground for setting aside administrative decisions in most continental legal
systems and is recognised in England.
By irrationality as a ground for judicial review it is associated with what is referred to as
Wednesbury unreasonableness in the case of;11
1997 TLR 3 (HC)
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Associated Provincial Picture Houses Ltd. v Wednesbury Corporation12
Facts
In 1947 Associated Provincial Picture Houses was granted a license by the Wednesbury
Corporation in Staffordshire to operate a cinema on condition that no children under 15 were
admitted on Sundays. Associated Provincial Picture Houses sought a declaration that such a
condition was unacceptable and outside the power of the Corporation to impose.
Held;-The court held that it could not intervene (interfere) to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court would have to
conclude that:
 In making the decision, the defendant took into account factors that ought not to have been
taken into account, or
 The defendant failed to take into account factors that ought to have been taken into
account, or
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
The court held that the decision did not fall into any of these categories and the claim failed.
This ground has been used to uphold constitutionalism as it prevents powers from being abused by,
for example, exercising a discretion for an improper purpose or without taking into account all
relevant considerations. In doing so, courts have been in return protecting human rights. In the case
of
R v. Ministry of Defense ex p Smith 13
Facts
The court reviewed a decision to discharge a number of individuals from the army on the basis of
their homosexuality. The basis for the decision was that the presence of homosexuals in the armed
forces would have a substantial and negative effect on the operational effectiveness of the armed
forces.
Held
The court of appeal affirmed the decision of the government and developed the principle of anxious
scrutiny(observation). But the case was again referred to the European Court of Human Rights as
Smith v. United Kingdom (no.1) [1999] where it was held that there had been violation of right to
private life and the right to an effective remedy. The court held that the irrationality test in
judicial review provided an insufficiently effective means of scrutiny (critical observation or
examination) in the circumstances.
It suffices to say that the test for irrationality in uncertain because if the basis is human rights, what
is a human right in Tanzania may not necessarily be a right in Europe. If refer such a case to
Tanzanian courts, the approach and decision could be different as homosexuality is itself illegal.
12
13
[1948] 1 KB 223
[1996]
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Regina -v- Barnsley Metropolitan Borough Council14
Facts;The applicant applied to have quashed the decision of the local council to exclude him from trading
in
the
market
and
to
revoke
his
right
to
have
a
stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the rules of
natural justice. the right of a stall holder to have access to the market was conferred by common
law, and could only be taken away for just cause and then only in accordance with the principles of
natural justice.
3. Procedural Impropriety.
This means is a failure on the part of a public authority to act in accordance with the
requirements of procedural fairness (ultra vires), procedural rules and basic rules of natural
justice. A decision suffers from procedural impropriety if in the process of its making the
procedures prescribed by statute have not been followed or if the 'rules of natural justice' have not
been adhered to.
Kinds of procedural impropriety:A. Statutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure, such as the
holding of a public hearing or inquiry,15 or a consultation with an external adviser. Some decisions
may be subject to approval by a higher body. Courts distinguish between "mandatory" requirements
and "directory" requirements. A breach of mandatory procedural requirements will lead to a
decision being set aside for procedural impropriety.
R v Secretary of State for Social Security, Ex parte Association of Metropolitan Authorities and
anor; 16
The Secretary of State, before making the Housing Benefit (General ) Amendment Regulations
1992, failed to comply with the duty imposed by s 61(7) of the Social Security Act 1986, to consult
with such organisations as the applicants, the AMA and Hackney LBC. Although the applicants
were entitled to a declaration to that effect, no useful purpose would be served by revoking the
regulations and accordingly the court refused to quash the regulations or declare them ultra vires
and the regulations remain in force.
B. Breach of natural justice
The rules of natural justice require that the decision maker approaches the decision making process
14
15
16
ex parte Hook; CA 1976
Jackson Stansfields v Butterworth
QBD (Tucker J); 3 July 1992.
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
with 'fairness'. What is fair in relation to a particular case may differ. As pointed out by Lord Steyn
in17 "the rules of natural justice are not engraved (cut) on tablets of stone."
Below are some examples of what the rules of natural justice require:i) The rule against bias (Nemo judex in causa sua) This means that “no man is to be a judge in
his own cause”.
The first basic rule or principle of natural justice which states that - nobody may be a judge in his
own case. Any person who makes a judicial decision - and this includes e.g. a decision of a public
authority on a request for a license - must not have any personal interest in the outcome of the
decision. If such interest is present, the decision maker must be disqualified even if no actual bias
can be shown, i.e. it is not demonstrated that the interest has influenced the decision.18 The test as to
whether the decision should be set aside is whether there is a "real possibility [of bias]", as
established in Gough v Chief Constable of the Derbyshire Constabulary [2001],19 which dropped
the 'fair minded observer' part of the test.20
The rule is very strictly applied to any appearance of a possible bias, even if there is actually none:
"Justice must not only be done, but must be seen to be done".21
Therefore this maxim falls in rules againt bias, whereby bias can be taken in different forms as
follows;10. Personal Bias - Occurs when there exists some relationship between the deciding authority
and the parties which incline him favorably or unfavorably on the side of one of the parties
before him.
11. Pecuniary Bias - is a bias in which any financial interest, however small, with or related to
the parties, would vitiate administrative action.
12. Subject-matter bias - The deciding officer is directly or indirectly related to the subjectmatter of the case.
13. Departmental bias - itself becoming the adjudicating authority would negate the concept of
fairness in the administrative proceeding.
14. Preconceived notion bias - The deciding officer has a preconceived notion, feeling, liking
or disliking in regard to the subject matter which forces him to give a specific judgment.
*In bias there is extreme end in judicial review , the court will look on the appearance of bias
because it is difficult to judge bias in a case, as in a case the concern is not actual bias but the
appearance of it.
Kinds of test of bias
17
18
19
20
21
Lloyd v McMahon [1987] AC 625
R v Bow Street Magistrates
Gough v Chief Constable of the Derbyshire Constabulary [2001] 4 ALL ER 289
Magill v Porter [2002] AC 347
R v Sussex Justices, ex parte McCarthy, [1924] 1 KB 256, [1923] All ER 233
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
10. Whether the facts assessed by the court gave rise to a real likelihood of bias.
11. Whether a reasonable person would have a reasonable suspicious (doubtful) of bias.
Relevant case;Regina -v- Gough (Robert)22
Facts
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a
neighbour to his brother, and there was therefore a risk of bias. This was of particular significance
as the defendant was charged with conspiracy with that brother to commit burglaries. The juror had
sworn an affidavit that she had not known of the connection.
Held: The appeal was dismissed. The House set out the test for bias. The test for bias in a juror
where apparent bias was alleged, was whether there was a real danger that the defendant had been
denied a fair. trial.
Lord Woolf said: ‘It must be remembered that except in the rare case where actual bias is alleged,
the court is not concerned to investigate whether or not bias has been established. Whether it is a
judge, a member of the jury, justices or their clerk, who is alleged to be biased, the courts do not
regard it as being desirable or useful to inquire into the individual’s state of mind. It is not desirable
because of the confidential nature of the judicial decision making process. It is not useful because
the courts have long recognised that bias operates in such an insidious manner that the person
alleged to be biased may be quite unconscious of its effect.
R v Bow Street Metropolitan Stipendiary Magistrate, Ex Parte Pinochet Ugarte23
Facts
Pinochet was accused by a Spanish judge of torture, a crime under international law which can be
prosecuted in any country under the doctrine of universal jurisdiction. The Spanish judge faxed an
INTERPOL arrest warrant to London and Pinochet was arrested later that evening. Pinochet's
lawyers argued that as Pinochet was head of state at the time of the alleged crimes he was immune
from the jurisdiction of British courts. The Divisional Court ruled Pinochet had state immunity.
Held:- A key passage of the judgment reads:
The development of international law since the Second World War justifies the conclusion that by
the time of the 1973 coup
d’état (final decision), and certainly ever since, international law condemned genocide, torture,
hostage taking and crimes against humanity (during an armed conflict or in peace time) as
international crimes deserving of punishment. Given this state of international law, it seems to me
difficult to maintain that the commission of such high crimes may amount to acts performed in the
exercise of the functions of a Head of State.
By a 3–2 majority (Lord Nicholls, Lord Hoffmann and Lord Steyn against Lord Slynn and Lord
Lloyd) the House of Lords ruled that Pinochet did not have state immunity.
22
23
HL 1993
3 WLR 1,456 (H.L. 1998)
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
ii) The right to a fair hearing. (Audi alteram partem) "no man is to be condemned unheard".
Fair hearing means that an individual will have an opportunity to present evidence to support his
or her case and to discover what evidence exists against him or her.
In Criminal Law, when an individual is arrested, a fair hearing means the right to be notified of the
charge being brought against him or her and the chance to meet that charge.
Whether or not a person was given a fair hearing of his case will depend on the circumstances and
the type of the decision to be made. The minimum requirement is that the person gets the chance to
present his case. If the applicant has certain legitimate expectations, for example to have his license
renewed, the rules of natural justice may also require that they are given an oral hearing and that
their request may not be rejected without giving reasons.24 Where the decision is judicial in nature,
for example a dismissal of an official in punishment for improper conduct, the rules of natural
justice require a hearing and the person questioned must know the case against them and be able to
examine and object to the evidence.
The right of fair hearing has various components:3. A notice - A party likely to be affected by the decision should be given an adiquate notice
and sufficient time to prepare . The notice should contain the charges , particular of the
charges in a language capable of being understood by a person. If time given for preparation
is too short or not sufficient the decision may be declared nullity.
Case;Nkomo v. Administrator Natal25
Facts
An illiterate hospital workers were given 48 hours over a weekend to prepare written representation
concerning their proposed dismissal.
Held;- the period was found to be inadequate in the circumstances then the decision was declared
nullity.
4. Viva voce - is a Latin phrase literally meaning "with living voice" or "oral hearing" but most
often translated as "by word of mouth." This means the other party has the right to be given
documents which are presented and right to question as the nature of hearing. Where there is
demand of fairness also requires oral hearing.
5. Disclosure and discovery - Individual must prove of information and reason that underline
the impending decision. The detail information is required depending on the seriousness of
the case.
24
25
McInnes v Onslow-Fane [1978] 1 WLR 1520
(1991) 12 INJ 521
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
6. Legal representative - A personal representative with legal standing (as by power of
attorney or the executor of a will). Licensed attorneys have the authority to represent
persons in court proceedings and in other legal matters. When hiring an attorney, a careful
consumer considers a number of variables, including the nature and importance of the case,
the attorney's fee and payment arrangement, personal chemistry with the attorney, and the
attorney's reputation.
Relevant cases;Ridge v. Baldwin 26
Facts
The Brighton police authority dismissed its Chief Constable (Charles Ridge) without offering him
an opportunity to defend his actions. The Chief Constable appealed, arguing that the Brighton
Watch Committee (headed by George Baldwin) had acted unlawfully (ultra vires) in terminating his
appointment in 1958 following criminal proceedings against him
Held; The House of Lords held that Baldwin's committee had violated the doctrine of natural
justice. The court held that a police authority's decision to dismiss a chief constable was
procedurally unfair in that it failed to provide the applicant with a proper opportunity to
challenge allegations made against him. Lord Denning says
“what fairness demands will depend upon the nature of the individual‟s interests, the impact of the
decision, whether the decision is preliminary or final, the subject matter of the decision, the terms
of any relevant statutory provisions and all the circumstances of the case.”
Mohamed Jawad Mrouch v Minister for Home Affairs
27
Facts
The court observed the application in respect to non observance of principles of natural justice. The
Applicant arrived in Tanzania during the course of 1987 and was subsequently granted a `Residence
Permit Class 'A' No.004307', issued on 14 September 1990. Renewed on 16 September 1993, the
permit was to remain current until 12 September 1994. In the interim, however, it was canceled by
the Director of Immigration Services and duly confirmed by the Minister for Home Affairs, on 2
December 1993. In a letter to the Applicant, the Director advanced that `the power conferred upon
me under s.15 (2) of the Immigration Act No.8 of 1972' constituted the reason for the cancellation
of the Applicant's permit. The Applicant's counsel contended that the unstated reason for the
cancellation of the permit was due to certain criminal charges pending against the Applicant, and
that the effect of such cancellation was that the Applicant, as persona non grata in the Republic,
could not clear his name by defending the charges. The Applicant accordingly sought the
invalidation of the cancellation of the permit on account of the alleged bias of the Minister and also
on the basis that the Applicant was punished' unheard.
Held;- He Applicant learn of the cancellation of his permit from a third party, since he was himself
out of the country at the time of cancellation and the letter of cancellation was served upon his son.
26
27
[1964] AC 40
1996 TLR 142 (HC)
ADMINISTRATIVE LAW
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Once a permit is granted to an immigrant, he has the right to remain in the Republic until such
permit expires. If, however, the permit should be revoked during its currency, the immigration
authorities have a duty to give reasons for such revocation and to afford the affected person the
opportunity of being heard, prior to a final decision being taken.
Discretionary powers must be exercised fairly, and this requires adherence to the rules of natural
justice which include the right to be heard. There is nothing in Section 15(1) of the Immigration Act
which ousts that right.
Although the Applicant had a legitimate expectation of remaining in the country until the expiry of
his permit, that expectation could have been justifiably extinguished if, and only if, he had been
given an opportunity of making representations to the authorities.
In the result, the following orders of certiorari are made: the Director's decision, cancelling the
Applicant's permit is quashed; the Minister's decision, confirming the Director's decision of
cancellation, is quashed; and the Minister's order of deportation of the Applicant is quashed. A
mandamus is issued, ordering the Director to restore `Residence Permit Class `A' No.0043607' to
the Applicant forthwith.”
iii) Duty to give reasons - (Nullum arbitrium sine rationibus) This means that "the right to
reasons for the decision".
Unlike many other legal systems, English administrative law does not recognize a general duty to
give reasons for a decision of a public authority. 28 A duty to give reasons may be imposed by
statute. Where it is not, common law may imply such a duty and the courts do so particularly with
regard to judicial and quasi-judicial decisions.29
Importance of giving reasons; It satisfy the affected individual, brings justice and fair treatment.
 It improves the quality of decision making
 It also protects the administration from appeal or other challenges
 It is what is needed by the court and other review board to determine the decision.
Relevant cases;Said Juma Muslim Shekimweri V. Attorney-General30
Facts
Where the applicant sought an order of certiorari to bring up and quash a decision of the President
of the United Republic `retiring' the applicant, an immigration officer, in the public interest. It
appeared that the applicant had been employed by the Government of Tanzania for some years
without having been subjected to any disciplinary sanction. The applicant had read a newspaper
report of his dismissal for allegedly receiving bribes. About two months later the applicant received
a letter informing him of his retirement.
28
29
30
R v Secretary of State for the Home Department Ex p Doody [1993] 3 All ER 92
Doody (above), R v Civil Service Appeal Board Ex p Cunningham [1991]4 All ER 310
1997 TLR 3 (HC)
ADMINISTRATIVE LAW
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Held:- The common law principle that a civil servant was dismissible at pleasure of the President
was not part of the law of Tanzania; That the letter informing the applicant of his retirement cited
provisions of law which were incompatible and this had caused the applicant considerable
embarrassment; Standing Order F35 which provided that all appointments were at the pleasure of
the President was invalid as it was in conflict with the provisions of art. 22 and 36(2) of the
Constitution; The only legislative provision which permitted the compulsory retirement was
paragraph (d) of section 8 of the Ordinance which would be utilized only for the purpose of
facilitating improvements in the organization of the department to which the civil servant belonged.
It was clear that the applicant's removal had not been sought on these grounds.
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation31
Facts
In 1947 Associated Provincial Picture Houses was granted a license by the Wednesbury
Corporation in Staffordshire to operate a cinema on condition that no children under 15 were
admitted on Sundays. Associated Provincial Picture Houses sought a declaration that such a
condition was unacceptable and outside the power of the Corporation to impose.
Held;-The court held that it could not intervene(interfere) to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the court would have to
conclude that:
 In making the decision, the defendant took into account factors that ought not to have been
taken into account, or
 The defendant failed to take into account factors that ought to have been taken into
account, or
 The decision was so unreasonable that no reasonable authority would ever consider
imposing it.
The court held that the decision did not fall into any of these categories and the claim failed.
In Tanzania this rule is a constitutionally which provides forms of the basis for procedural
impropriety especially under article :13(6) To ensure equality before the law, the state authority shall make procedures which are
appropriate or which take into account the following principles, namely:
(a) When the rights and duties of any person are being determined by the court or any other agency,
that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against
the
decision of the court or of the other agency concerned.32
R v Higher Education Funding Council ex p Institute of Dental Surgery 33
Facts
31
32
33
[1948] 1 KB 223
the Constitution Of The United Republic Of Tanzania
[1994] 1 WLR 242
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
Grants to educational institutions were based on an assessment of their research quality by the
Funding Council. A college applied for judicial review of their assessment, contending the council
acted unfairly in giving no reasons for its rating.
Held
The Court found no ground for requiring the council to give reasons.
Sedley J considered the advantages and drawbacks of a duty to give reasons. He distinguished
between cases where the nature and impact of the decision itself call for reasons as a routine aspect
of procedural fairness, and other cases where some trigger factor is required to show that, in the
circumstances of the particular decision, fairness demands reasons. This case fell into the latter
category, but the rating was not so aberrant in itself to call for an explanation.
4. Legitimate Expectation
It applies to the situation where a person has an expectation or interest in a public body retaining a
long-standing practice or keeping a promise.
Schmidt v. Secretary of State for Home Affairs 34
Facts
The applicant was an alien who had been given live to enter in United Kingdom for the purpose of
studying Scientology for a limited period of time, ones that period came to an over Mr Schmidt
applied for an extension of Visa but The Secretary of home affair refused due to the British
Government, having been convinced that Scientology was socially harmful, rejected their
applications for extension of their stay in this country. And Mr Schmidt was not given the right to
make representation. Mr Schmidt sort a declaration the ought to be afforded hearing.
Held: The Home Secretary had power under the Aliens Order 1953 to refuse aliens permission to
land or to extend their time of stay and he had acted in the interest of society.
There being no right of entry or extension of stay, questions of interference with rights and of the
applicability of rules of natural justice did not arise, because his act was administrative.
Obiter, per Lord Denning MR: The Home Secretary should, in exceptional circumstances, listen
to reason as to why he should not apply a certain policy. He said according to the case of Ridge
v. Baldwin which shows that administrative body may be bound to give a person who is affected by
the decision an opportunity of making representation.
Another relevant case:Council of Civil Service Unions v Minister of State for Civil Service. 35
Facts
The Government Communications Headquarters (GCHQ) is a British intelligence agency that
provides signals intelligence to the British government and armed forces. Prior to 1983 its existence
34
[1969] CA
35
(1985) AC 374
ADMINISTRATIVE LAW
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was not acknowledged, despite the fact that it openly recruited graduates. Following a spy scandal
in 1983, the organisation became known to the public, and the government of Margaret Thatcher
decided a year later that employees would not be allowed to join a trade union for national security
reasons. The Minister for the Civil Service is a position held ex officio by the Prime Minister.
This was enforced through an Order in Council, an exercise of the Royal Prerogative. Despite an
extensive publicity campaign by trade unions, the government refused to reverse its decision,
instead offering affected employees the choice between £1,000 and membership of a staff
association or dismissal. Those employees dismissed could not rely on an industrial tribunal, as they
were not covered by the relevant employment legislation. As such, the Council of Civil Service
Unions decided judicial review was the only available route.
The decision to ban workers at GCHQ from trade union membership had been taken following the
meeting of a select group of ministers and the prime minister rather than the full Cabinet. This is not
unusual, even in relation to high-profile decisions: a decision was similarly taken to authorise the
Suez operation of 1956 and the decision to transfer the ability to set interest rates to the Bank of
England in 1997
Held;- It was held that the employees of GCHQ had a right to consultation, and that the lack
of consultation made the decision invalid.
In Court of Appeal it was held that judicial review could not be used to challenge the use of the
Royal Prerogative(rights). They decided that as the determination of national security issues is an
executive function and it would be inappropriate for the courts to intervene.
Applicability Of Legitimate Expectation
The doctrine of legitimate expectation must have made of the fallowing;6. Adequate (enough, sufficient) statement of law or fact
7. The statement must be within the officers or other representative delegated.
8. The person dealing with that officer or representative rely all the statement to his detriment
(damage).
5. Doctrine of Proportionality
The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation
processes, especially in constitutional law, as a logical method intended to assist in discerning the
correct balance between the restriction imposed by a corrective measure and the severity of the
nature of the prohibited act.
This concept requires that in killing a mosquito we don't use a hummer.
Relevant case:Regina -v- Barnsley Metropolitan Borough Council, ex parte Hook; 36
Facts
The applicant applied to have quashed the decision of the local council to exclude him from trading
in the market and to revoke his right to have a stall.
36
CA 1976
ADMINISTRATIVE LAW
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Held: He succeeded on the grounds that the decision had been taken in breach of the rules of
natural justice. the right of a stall holder to have access to the market was conferred by common
law, and could only be taken away for just cause and then only in accordance with the principles of
natural justice.
REMEDIES AVAILABLE UNDER JUDICIAL REVIEW
If an application for judicial review is successful the following remedies are available. It should be
noted that these remedies vary from country to country.
A. THE PREROGATIVE ORDERS (MANDAMUS, PROHIBITION AND CERTIORARI)37
 Mandamus is an order from the High Court commanding a public authority or official to
perform a public duty (Mandatory order).
Edward Mlaki Liston Matemba v. The Region Police Commander38
Facts
There was an allegation that the applicant's two vehicles were involved in transporting smuggled
(illegal) goods. The Regional Police Commander of Kilimanjaro Region, pursuant to the
instructions of the Secretary to the Regional Security Committee, arrested and detained the vehicles.
The applicant was later summoned (ordered) to appear before the Region Security Committee
where he denied the allegations. He was told that he would be informed of the outcome but that was
not done. The vehicles remained in police custody though no criminal charges were preferred
against him.
Held;-The High Court held that in the absence of any pending criminal matter the respondents had
no power to detain the applicant's vehicles, and an order of mandamus was issued to release the
vehicles.
 Prohibition is an order from the High Court preventing a public authority or official to
perform a public duty (Prohibiting order).
Festo Barege and 794 others v. Dar es Salaam City Council.39
Facts
The applicants were residents of one of a district of Dar es Salaam where the City Council dumped
waste and refuse which attracted swarms of flies. When the rubbish was set on fire, a lot of smoke
and foul smell was produced and inconvenienced the neighborhood. The applicants applied for
orders of certiorari to quash the decision of the City Council of dumping waste; prohibition, to stop
the City Council from continuing that nuisance; and mandamus, to compel the respondent to
discharge its functions properly by establishing and using an appropriate site.
37
38
39
section 17 of CAP 310.
Civil Application No. 38 of 1979
Civil Cause No. 90 of 1991, High Court of Tanzania at Dar es Salaam
ADMINISTRATIVE LAW
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Held;- The application was granted by the High Court. A number of findings were made: One, the
City Council's action was ultra vires the Local Government (Urban Authorities Act, 1982. Two, the
action was contrary to the City's Master plan. Three, it was not a statutory duty of the respondent to
create nuisance but to stop it and avoid to endanger the residents‟ health. Four, Article 14 of the
Constitution, which guarantees the right to life and its protection by the society was breached.
 Certiorari is an order from the High Court to quash decision by a public authority inferior
courts or tribunals to perform certain public duty or where there has been an excess of
jurisdiction or an ultra vires decision; a breach of natural justice; or an error of law. By
setting aside a defective decision, certiorari prepares the way for a fresh decision to be taken
(Quashing order).
Palm Beach Inn Ltd and Another v. Commission for Tourism and Two Other40,
Facts
Where the second applicant, Ms. Naila Majid Jiddawy, was operating a tourist hotel, on the eastern
coast of the Island of Zanzibar. The first respondent's employees ordered the closure of the hotel,
canceled her business license, and ordered her to vacate the premises for good. The applicants
challenged those three orders in the High Court of Zanzibar which made a number of findings: One,
the respondents exceeded their powers in closing the hotel and revoking the applicant's license.
Two, the respondent's actions were ultra vires. Three, the deportation order served on the second
applicant deprived her of freedom of movement. Four, the applicants were denied the right of a
hearing in spite of their demands to know what were their faults.
Held;- Orders of certiorari were granted to quash the 2nd respondent's decisions to close the hotel
and canceling the license. A prohibition order was also issued to restrain the 2nd respondent from
purporting to act as the Commission for Tourism while no commissioners had been appointed.
B. OTHER REMEDIES
In this category the remedies include; Injunctions - An injunction is a court order that requires somebody involved in a legal
action to do something or refrain from doing something.
 Declarations - A declaration is a statement of the legal position in the matter before the
court. The court may simply declare that an administrative action or decision is valid or not.
A declaration lacks coercive power as the case has been in Tanzania with High court
declaring some statutes null and void and wait for responsible authority to rectify the
situation.
 Damages - Damages may be awarded with any of the applied orders above but an applicant
may not seek damages.
DISTINCTION BETWEEN JUDICIAL REVIEW AND APPEAL
40
High Court of Zanzibar Civil App. No 30 of 1994
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
 An appeal is concerned with the merits of the decision while judicial review is concerned
with the legality and procedure of the decision.
 Appeal starts from the district court to the Court of Appeal depending on the nature of the
case
but it is only the High bestowed (granted right) with powers to receive and hear application
for
judicial reviews.
 Appeal is a constitutional right to a person aggrieved (unfairly treated) by a certain decision
either by the court or a tribunal or a quasi judicial tribunal or even of an administrative
agency while judicial review is a privilege at the discretion of the High Court to grant leave
or refuse.
 The court in appeal have the power to determine whether a decision was right or wrong and
if wrong it is generally permitted to substitute its own decision for the erroneous one. By
contrasting judicial review the High Court is limited to a supervisory role i.e. decision and
decision making process. If the High Court finds the decision being flawed then it may
quash the decision but it will then be for the decision maker to reconsider the decision.
 In appeal there is no application for leave except that when the appeal is from the High
Court to
Court of Appeal on matters of law but in judicial review leave is a mandatory procedural
requirement unless the High Court chooses to waive the requirement where it deems necessary like
issues of urgency.
SCOPE OF JUDICIAL REVIEW
Judicial review is generally regarded as a public law remedy and it is only available where an issue
of public law is involved. The judicial review is only available against public bodies in only public
law matters, Therefore judicial review to be applied is that the body must be public entrusted with
functions to perform for the benefit of the public and not for the benefit of private profit.
Amenability (Accountability) To Judicial Review
The decision complained of must have been taken by a public body, i.e. a body established by
statute or otherwise exercising a public function.
R v. Panel on Take-overs and Mergers, ex parte Datafin plc 41
Facts
The Panel on Take-overs and Mergers is the City of London's self-regulating mechanism for
dealing with mergers and acquisitions. The applicant complained about the conduct of their
competitors in a takeover bid and were unhappy with the Panel's decision. When it was refused
leave to seek judicial review by the High Court, it appealed to the Court of Appeal.
Issue
The main issue facing the Court was whether to review the decision of a Panel set up under private
law using the standards usually applied in administrative law.
41
[1987] QB 815
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
Held;- The Court of Appeal held that the powers exercised by the Panel (regulating take-overs and
enforcing a code of conduct on them) were essentially in the domain of public law and formed part
of the Government's scheme to regulate the City. Those affected had no choice but to submit to the
Panel's jurisdiction. As a result, the Panel had the duty to act judicially and its decisions could be
checked by means of judicial review. On the merits however, the Court found no ground to quash
the disputed decision.
OUSTER CLAUSE OR EXCLUSION CLAUSE
Ouster clauses - Are provisions in the statute which limit or exclude all review jurisdiction from
the court e.g:- the decision of the minister is final decision can not be challenged, for instance in
FIFA the body requires that any person not agreed by the decision should not use the court of law
rather he should use the mechanisms established by the said organisation or institution.
Legal effect of ouster clause - Also ouster clauses may be constitutional or legislative i.e in
Tanzania once electoral commission mentioned the winning part no one can challenge it to court.
Relevant case:Anisminic Ltd v Foreign Compensation Commission42
It was held that a determination is not really determination if a tribunal exceeds its jurisdiction, the
basic philosophy is that once administrative wrong doing in decision the ouster clause can not
protect a functional discretion.
Taylor (formerly Kraupl) -v- National Assistance Board;43
It was held that where the statute provides that the decision of the tribunal or minister is final, the
finality is only on appeal but not reviewed to the High court.
Constitution ouster clauses - These are ouster clauses which contained in the constitution. These
should be interpreted using the purposive approach but not literally approach.
Under Article
LOCUS STAND
In law, locus stand means the right to bring an action to be heard in court, or to address the Court
on a matter before it. Locus stand is the ability of a party to demonstrate (show) to the court
sufficient connection to and harm from the law or action challenged to support that party’s
participation in the case.
For example, in the United States, a person cannot bring a suit challenging the constitutionality of a
42
43
[1969] 2 AC 147
CA 1951
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
law unless the plaintiff can demonstrate that the plaintiff is (or will be) harmed by the law.
Otherwise, the court will rule that the plaintiff “lacks standing” to bring the suit, and will dismiss
the case without considering the merits of the claim of unconstitutionality. In order to sue to have a
court declare a law unconstitutional, there must be a valid reason for whoever is suing to be there.
The party suing must have something to lose in order to sue unless they have automatic standing by
action of law.
Relevant case:Gouriet -v- Union of Post Office Workers;44
Facts:
The claimant sought an injunction to prevent the respondents calling on its members to boycott
(protest) of mail to South Africa. The respondents challenged the ability of the court to make such
an
order.
Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers
to grant interlocutory injunctions whenever they thought it convenient to do so. As to the
exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal
law, there must be something more than infringement before the assistance of civil proceedings can
be invoked and accorded for the protection or promotion of the interests of the inhabitants of the
area.
Causes of Lucas standi:Standing exists from one of three causes:
4. The party is directly subject to an adverse effect by the statute or action in question, and the
harm suffered will continue unless the court grants relief in the form of damages or a finding
that the law either does not apply to the party or that the law is void or can be nullified. This
is called the "something to lose" doctrine, in which the party has standing because they
directly will be harmed by the conditions for which they are asking the court for relief.
5. The party is not directly harmed by the conditions by which they are petitioning the court for
relief but asks for it because the harm involved has some reasonable relation to their
situation, and the continued existence of the harm may affect others who might not be able
to ask a court for relief. In the United States, this is the grounds for asking for a law to be
struck down as violating the First Amendment, because while the plaintiff might not be
directly affected, the law might so adversely affect others that one might never know what
was not done or created by those who fear they would become subject to the law – the socalled "chilling effects" doctrine.
6. The party is granted automatic standing by act of law.45 Under some environmental laws in
the United States, a party may sue someone causing pollution to certain waterways without a
44
HL 26-Jul-1977
45
Lee, Evan; Mason Ellis, Josephine (December 3, 2012). "The Standing Doctrine's Dirty
Little Secret". Northwestern Law Review 107: 169.
ADMINISTRATIVE LAW
BY SOLICITOR KATURA
federal permit, even if the party suing is not harmed by the pollution being generated. The
law allows them to receive attorney's fees if they substantially prevail in the action. In some
U.S. states, a person who believes a book, film or other work of art is obscene may sue in
their own name to have the work banned directly without having to ask a District Attorney
to do so.
Relevant case:Regina -v- HM Inspector of Pollution and Ministry of Agriculture, Fisheries and Food, Ex Parte
Greenpeace Ltd;46
Facts
A campaigning organisation was challenging an official decision which, if stayed, would have
adverse (prevent) financial implications for a commercial company (British Nuclear Fuels PLC)
which was not a party to the proceedings. Brooke J had refused a stay.
Held: The appeal failed. The variation of the terms for nuclear waste site testing was lawful. A
responsible body with a bona fide (real) concern about the subject matter of the proceedings may be
regarded as being more than a mere “busy body.”(gossip).
Regina -v- Inland Revenue Commissioners, ex parte the National Federation of Self-Employed
and Small Businesses Ltd; 47
Facts
The Commissioners had been concerned at tax evasion of up to £1 million a year by casual workers
employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but
that they would not pursue (chase) those who had evaded taxes in the past. The Federation
challenged the concession (compromise). The Revenue said it did not have standing to make the
challenge.
Held: It was relevant to consider the strength of the case that the Commissioners were acting
beyond their powers. The Board are charged by statute with the care, management and collection on
behalf of the Crown of income tax, corporation tax and capital gains tax.
THANK YOU
WABILLAHI TAWFIQ
46
47
CA 30-Sep-1993
HL 9-Apr-1981