Administrative Law in Tanzania. A Digest of Cases

Chapter One: Procedure in Applications for Prerogative Orders

CHAPTER ONE PROCEDURE IN APPLICATIONS FOR PREROGATIVE ORDERS Introduction What this chapter contains are cases which deal mainly with procedural matters in applications for Prerogative Remedies. Many such applications have foundered for the simple reason that the applicants did not comply with the correct procedure. One such procedural requirement is that an applicant seeking prerogative remedy must first obtain leave of the court to make such an application. This requirement is justified on the basis that it acts as a “filtering device” in that it guards against unmeritorious applications by busybodies; thus the High Court is not inundated by such applications. Whether this requirement for leave to apply for prerogative remedies should be insisted upon in all cases even when there is an urgent matter needing a temporary injunction seems to be questionable. It is submitted that the better practice would be to give the court discretionary power to waive the requirement in deserving cases where the mischief sought to be challenged might cause irreparable harm to the applicant if not checked timeously. That appears to have been the view of the Court in the case of V.G. Chavda v. The Director of Immigration Services (1995) TLR 125 (infra), in which the Court held that the High Court has power to grant an interim interlocutory injunction before hearing an application for leave for a prerogative order even against a decision of the Government. Be that as it may, from the authorities, it is clear that among matters which the courts consider in applications for leave to apply for prerogative orders or remedies include (1) whether the facts contained in the affidavit in support of the application, if true, would constitute a reasonable ground for the form of relief sought; (2) whether the applicant has a sufficient interest in the matter to which the intended application relates; (3) whether on the facts the application will raise an arguable or prima facie case; (4) whether the applicant has not been guilty of dilatoriness; and (5) whether there is no other speedy and effective remedy available to the applicant and, 1 if such alternative remedy is available, whether, prima facie, judicial review is a better way of obtaining the relief sought. The cases dealt with in this chapter emphasize the need, on the part of statutory bodies or inferior tribunals to comply with provisions which confer on them the requisite jurisdiction. On this point the Court of Appeal of Tanzania somewhat widened the scope of administrative law in Tanzania by adopting the principles enunciated in the English case of Anisminic Ltd. v. Foreign Compensation Commission (1969) 2 AC 147 – also in (1969) All ER 28, and in (1969) 3 WLR 163. In that case, Lord Pearce said (page 213 of the Weekly Law Reports): Lack of jurisdiction may arise in various ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged in a proper enquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its enquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these would cause its purported decision a nullity. In the same case, Lord Reid said (page 213): If they base their decision on some matter which is not prescribed for their adjudication, they are doing that which they have no right to do and … their decision is a nullity. Other cases covered in this chapter are those dealing with the requirement of giving a notice to interested parties by statutory bodies before doing any act which might adversely affect other people; when and toward whom mandamus or certiorari will lie; the need to properly identify persons who may be adversely affected; standing or locus standi; adequate safeguards in statutory provisions; and the need to establish a prima facie case in an application for leave to apply for prerogative orders. 2 Administrative Law in Tanzania The Republic ex parte Shirima v. Kamati Ya Ulinzi na Usalama, Wilaya ya Singida, The Area Commissioner...