Judicial Review: Meaning, grounds and how to apply


This is a definite guide to judicial review.

in this guide you will learn;

what is judicial review

the law applicable in Judicial review

the rationale of judicial review

historical development of judicial review

grounds for judicial review

grounds for judicial review

How to lay for judicial review

scope and limitation of judicial review

etc.

let’s get started

What is Judicial Review

Judicial review is the way through which the court controls the action of administrative bodies.

In Judicial review, court review and scrutinize the validity of the acts, decisions, instruments or any transaction performed by administrative bodies.

De smith1de Smith, Judicial Review of Administrative Action (1968) (2nd Ed.), p. 23 defines judicial review to mean Judicial scrutiny and determination of the legal validity of instruments, acts, decisions and transactions of administrative organs.

Law applicable in Judicial Review

There is no statutory law that provides for rules of judicial review.

In many instances, substantive law is applicable via inheriting common law.

Judicial review is recognized in Common Law jurisprudence as the means of controlling the excesses of power by public officials.

Judicial review is an inherent jurisdiction vested in the High Court.

That means all Judicial Review applications must be lodged in High Court.

The Constitution is the fundamental law in respect of the inherent powers of the High Court.

In Tanzania, the law governing application for judicial review and its remedies is the Law Reform (Fatal Accidents) Miscellaneous Provisions Act2Cap 310 R.E 2002.

The provisions of sections 17-19 are relevant in respect of the remedies afforded when Judicial Review is invoked.

Historical development of Judicial Review

Historically in Britain, Judicial Review was a means of controlling public power developed in a very limited fashion.

Judicial Review was used as the means by which the King tried to control various inferior bodies, largely inferior adjudicative bodies (tribunals, inquiries) than administrative bodies.

Judicial Review was influenced by approaches/notions of private law rather than public law.

The scope of Judicial Review was limited on

  • Was there a public right infringed?
  • What kind of remedies?

Because the remedies of Judicial Review emanated (came) from the King were called PREROGATIVE ORDERS.

What is a Rationale for Judicial Review?

The essence of judicial review is to ensure that statutory powers are not; Usurped, Exceeded or abused and that procedural and substantive duties are complied with.

Grounds for Judicial Review

Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 stated three major grounds of Judicial Review that is Illegality, Irrationality and Procedural impropriety.

Illegality

Illegality happens to be a ground of judicial review when administrative bodies do something which is against the law.

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Under Illegality one can challenge on;

  1. Excess of jurisdiction
  2. Absence of power
  3. Unlawful delegation
  4. An error of law on the face of records
  5. Improper motive/purpose

All these, when done by an administrative authority, constitute illegality. Thus judicial review can be invoked to seek remedies.

Irrationality

Irrationality happens to be a ground of judicial review when administrative bodies do something irresponsibly.

Irrationality constitutes of;

Failure to exercise discretion

Sometimes the authority is required to apply its mind to the facts and circumstances of the case at hand.

If one is acting mechanically, that is, without due care and caution or without a sense of responsibility in the exercise of its discretion, then there is failure to exercise discretion.

Unreasonableness

Lord Wrenbury in Roberts v Hopwood [1925] AC 578 stated that;

“A discretion does not empower a man to do what he likes merely because he is minded to do so-he must in the exercise of his discretion do, not what he likes, but what he ought. In other words, he must, by use of his reason, ascertain and follow the course which reason directs. He must act reasonably.”

Acting under dictation

This happens where a body entrusted with certain powers of carrying out decisions surrenders such power under the influence of another authority that has not conferred such by under the law.

Other factors for Irrationality includes

Irrelevant consideration

Mala fide

Fettering discretion

Procedural Impropriety

Procedural Impropriety happens to be a ground of judicial review when administrative bodies do something without observing the proper procedure.

Procedural Impropriety includes;

  • Failure to follow statutory procedures
  • Breach of rules of natural justice
    • These include;
    • The audi alteram partem-Right to be heard
    • The Nemo Judex in causa sua-Rule against Bias
    • The Nullum Arbtrium sine rationibus-Right to be given reasons for the decision made
  • The doctrine of legitimate expectation

In Tanzania, the grounds of judicial review were stated by the Court of Appeal in the case of SANAI MURUMBE AND ANOTHER v MUHERE CHACHA [1990] TLR 54 (CA) where the court stated;

“The High Court is entitled to investigate the proceedings of a lower court or tribunal or public authority on any of the following grounds, apparent on the record.

  • One, that the subordinate court or tribunal or public authority has taken into account matters which it ought not to have taken into account.

  • Two, that the court or tribunal or public authority has not taken into account matters which it ought to have taken into account.

  • Three, lack or excess of jurisdiction by the lower court.

  • Four that the conclusion arrived at is so unreasonable that no reasonable authority could ever come to it.

  • Five, rules of natural justice have been violated.

  • Six, the illegality of procedure or decision

Procedures for applying for Judicial Review

Judicial Review is not like appeal.

One can only go for judicial review if there is no room for other alternative remedies.

It is an avenue that is not always open to any person.

Stages for application of judicial review are;

  1. Application for leave to institute a case
  2. Substantive Application
  3. Hearing of the case
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Application for leave to institute a case

Before the substantive application of Judicial review is lodged, an applicant must first seek leave (permission) to file the same.

This Leave is sought through a Chamber Summons supported by an affidavit sworn by an applicant or his or her lawyer stating the facts and grounds supporting the application.

Why leave? And Can a Court refuse to grant leave?

In principle, judicial review is a discretionary remedy.

As such it may be refused if the Court is satisfied for instance that there is another adequate remedy available to the applicant or if and where the Court is satisfied that the applicant has not exhausted all available and adequate avenues in his favour.

It may be refused on the ground that there are no merits in the application or that the applicant has no locus standi or that he has unduly delayed in making the application.

But the Court may still grant leave even when there are available remedies if in its view, those remedies are ineffective or if the procedure to secure them is cumbersome or onerous on the applicant.

The totality of the foregoing leads to one conclusion. Leave is a procedural barrier intended to prevent abuse by busy buddies.

It enables Courts to sift frivolous applications at the earliest opportunity.

Leave is usually made ex parte.

But when it is the Attorney General is a party, section 18(1) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act require the Court to order that the AG be summoned to appear as a party to the proceedings for leave and if he does not appear on the date set for hearing the application may proceed ex parte.

What this implies is that the respondent presence in Court may be dispensed with until the hearing of the main cause.

It can be heard in the absence of the other party.

 Substantive Application

Once leave to apply for judicial review is granted, the applicant must file the main cause and serve it on the other party.

The substantive application for judicial review is also made through Chamber Summons supported by an affidavit, but it has to be inter-parties.

Hearing of the case

The hearing will be inter partes after service of the appropriate documents.

It is worth noting that if the complaint is against the government, there is no requirement to save notice of 90 days as provided for in the Government Proceedings Act.

The Government Proceedings Act would not apply.

To elucidate this point, the case of Vidyadhar Girdharal Chavda Vs Director Of Immigration Services & Others3[1995] TLR 125 is relevant.

In that case, the Court, (Samatta JK, as he then was) held that the Government Proceedings Act does not embrace prerogative proceedings.

It was necessary to decide so in order to guard the individual rights of individuals against abuse because S.11 of the Act barred courts to grant injunctive orders against the government, ministers and officials.

This case shows the beauty of reasoning, without which rights of the weak which is protected by law will become nugatory if provisions of laws are taken for granted.

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Scope and limitation of judicial review

The Judicial review is the common law remedy that can only be exercised when the wrong is done by the administrative body and there are no other means to get legal relief.

In judicial review, only prerogative orders can be sought.

The range of prerogative orders is limited to certiorari, prohibition, mandamus, Habeas corpus and Quo warranto.

Case Law on Judicial Review

  1. Abdi Athumani & 9 Ors. v D.C. Tunduru & Ors., HCT, Songea, Consolidated Miscellaneous Civil Case Nos. 2 & 5 of 1987 (Unreported).
  2. AG v  Ryan (1980) AC 718
  3. Ajit Kumar Gordhan v The Director of Immigration, HCT, DSM,  Misc. Civil Application No. 31 of 1991 (Unreported).
  4. Ally Linus &  Eleven  Ors. V Tanzania Harbours Authority & The Labour Conciliation Board of Temeke District (1998) TLR 5
  5. American Cyanamid Co. v Ethicon Ltd. (1975) 1 All E.R. 504
  6. Amri Juma & 15 ors. v Tanzania Harbours Authority (THA) & Anor.; HCT DSM, Miscellaneous Civil Cause No. 37 of 1980 (Unreported).
  7. Anisminic Ltd. V Foreign Compensation Commission (1969) 2 WLR 163
  8.  Associated Provincial Picture Houses Ltd. V Wednesbury Corporation (1948) 1 KB  223
  9. Baraza la Wanawake Tanzania (BAWATA) & 5 Ors. v Registrar of Societies, HCT, DSM, Misc. Civil Cause No. 17 of 1997 (Unreported).
  10. Council of Civil Service Unions v Minister for Civil Service (1984) AC 374
  11. Fatuma Awadhi Said el Hid v Salima Ali (1987) TLR 156
  12. Josiah Barthazar Baizi & Ors. v AG & Ors. (1998) TLR 331
  13. Kahama Gold Mines & Ors. V Minister for Energy; HCT DSM, Miscellaneous Civil Cause No. 127 of 1989 (Unreported).
  14.  Kukutia ole Pumbun & Anor. v AG & Anor. (1993) TLR 159
  15. Lausa Alfan Salum & 106 ors. v Minister for Lands, Housing and Urban Development & Anor. (1994) TLR 237
  16. M v Home Office & Anor. (1993) AC 718
  17. Mecaiana Establishments (VADUZ) v The Commissioner of Income Tax & Ors., CAT, DSM, Civil Appeal No. 14 of 1994 (Unreported)
  18. Moses J. Mwakibete v The Principal Secretary & Anor. , CAT, Civil Appeal No. 27 of 1992 (Unrptd)
  19. Moses J. Mwakibete v The Principal Secretary & Anor. HCT, Arusha, Miscellaneous Civil Application No. 11 of 1992 (Unreported).
  20. Nanalal Damodar Kanji v Tanga Township Authority (1940) 1 TLR (R) 239
  21. National Housing Corporation v Tanzania Shoe Co. & Ors. (1995) TLR 251
  22. Northern Tanzania Farmer’s Cooperative Society Ltd. v W.H. Shellukindo (Preliminary Objection) (1978) LRT 36
  23. Northern Tanzania Farmer’s Cooperative Society Ltd. v W.H. Shellukindo (Merits) (1978) LRT 37
  24. Peter Ng’omango v Gershon M.K. Mwangwa (1993) TLR 77
  25. R v Panel on Takeovers & Mergers, ex parte Datafin Plc & Anor. (1987) QBD 81
  26. Sheikh Mohammad Nassor Abdullah v The Regional Police Commander, Dar es Salaam Region & ors. (1985) TLR 1.
  27.  Simeon Manyaki v The  IFM  (1994) TLR 304
  28.  Sylvester Cyprian & Ors. v UDSM, HCT, DSM. Miscellaneous Civil Application No. 68 of 1994 (Unreported)
  29. Tanzania Air Services Ltd.  Minister for Labour & Ors. (1996) TLR 217

Reference

  • 1
    de Smith, Judicial Review of Administrative Action (1968) (2nd Ed.), p. 23
  • 2
    Cap 310 R.E 2002
  • 3
    [1995] TLR 125

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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