JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

VIII: JUDICIAL REVIEW OF ADMINISTRATIVE DISCRETION

8.0. Introduction

The change within State function thus from ‘Police State’ to ‘Welfare State’ has tremendously increased the functions of the government., whereas the administrative authorities have acquired vast discretionary powers and generally, exercise of those powers are left to the subjective satisfaction of the administration without laying down the statutory guidelines or imposing conditions on it[1]. Therefore the current situation is that the administration administers law enacted by the legislature and thus performs the executive functions; it also enacts legislation when the legislative powers are delegated to it by the legislature and it also interprets law through administrative tribunals. Thus, there is concentration of all powers in the hands of the administration – legislative, executive and judicial[2].

8.1 Meaning

Administrative Discretion

The meaning of administrative discretion has been comprehensive given by Professor Freund[3] in the following words:

‘When we speak of the administrative discretion, we mean that a determination may be reached, in part at least, upon the basis of consideration not entirely susceptible of proof or disproof…. It may be practically convenient to say that discretion includes the case in which the ascertainment of fact is legitimately left to administrative determination’

Thus, here the decision is taken by authority not only on the basis of the evidence but in accordance with policy or expediency and in exercise of discretionary powers conferred on that authority.

Judicial Review

Black’s Law Dictionary, 8^th Edition defines judicial review as the Court’s review of a lower or an administrative body’s factual or legal findings. The high court is therefore vested with the power to pass through a decision or order made by a public body, a tribunal or an inferior court to examine among other things its correctness, legality and if it was based on the principles of natural justice. Hence the powers of the high court are only supervisory.

Judicial review comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by public authority which is inconsistent or in conflict with the basic law of the land[4]. Generally, judicial review deals with three aspects thus, judicial review of legislative action; judicial review of judicial decision; and judicial review of administrative action. However, the subject matter of this lecture is judicial review of administrative actions.

8.2 Essentials in Judicial review of Administrative Discretion

Object of Judicial Review

The object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and to ensure that the authority reaches a conclusion which is correct in the eyes of law[5]. Therefore, judicial quest in administrative matters is to strike the just balance between the administrative discretion to decide matters as per government policy, and the need of fairness, thus any unfair action must be set right by administrative review[6]. Professor Issa Shivji viewed that judicial review as one of the mechanism by which a relatively open organ of the State i.e. Judiciary can bring to light and to some limited extent redress the abuse of power and authority committed by other organs of the State and public officials.

Rationale of Judicial Review

The rationale behind the judicial review is that it form as integral part of the constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. Therefore, judicial review is a basic and essential feature of the Constitution and it cannot be abrogated without affecting the basic structure of the Constitution.

Scope of Judicial Review

It is important to note that in judicial review, the court is not concerned with the merits or correctness of the decision, but with the manner in which the decision is taken or order is made. The court of law is not exercising appellate power and it cannot substitute its opinion of the authority deciding the matter. Thus, the areas where judicial power can operate are limited to keep the executive and legislature within the scheme of division of powers between the three organs of the State[7].

Limitation of Judicial Review

 Moreover, judicial review has its limitations, whereas the duty of the court is to confine itself to the question of legality, thus whether the action taken by administrative authority has legal justification or not. It has to be understood that it is for the executive to administer the law and the function of the judiciary is to ensure that the Government carries out its duty in accordance with the provisions of the Constitution and general laws. Thus, the court has the duty to consider whether the decision – making authority exceeded its powers, committed an error of law, violated rules of natural justice, and reached a decision which no reasonable man would have reached or otherwise abused its powers. Though the court is not expected to act as a court of appeal, nevertheless it can examine whether the decision – making process was reasonable, rational, not arbitrary, etc[8]. Unless the order passed by an administrative authority is unlawful or unconstitutional, power of judicial review cannot be exercised. Therefore, power of judicial review is supervisory in nature.

Discretionary Power and Judicial Review

There is wide range of discretionary powers which have been conferred to the administrative authorities. Starting with discretion in trivial matters such as maintenance of birth and death register to powers which seriously affects the rights of individuals, e.g, acquisition of properties, regulation of trade, industry or business, investigation, seizure, confiscation and destruction of property, detention of person on subjective satisfaction of an executive authority[9].

The general rule is that, the courts have no power to interfere with the actions taken by administrative authorities in exercise of discretionary powers. This was once observed by Lord Halsbury, in the case of Westminster Corporation v London & North Western Railway Company[10]  that                                  ‘where the legislature has confined the power to a particular body, with a discretion how it is to be used, it is beyond the power of any court to contest that discretion’

However, this does not mean that there is no control over the discretion of the administration. Since administration possesses vast discretionary powers and if complete and absolute freedom is given to it, it will lead to arbitrary exercise of power. Therefore, all powers have legal limits. Wide discretion must be in all administrative activity but it should discretion define in terms of which can be measured by legal standards lest cases of manifest injustices go unheeded and unpunished[11]. Also, as early as 1647 in the case of Estwick v City of London[12], it was it was laid down by King’s bench that                ‘wheresoever a Commissioner or other person hath power given to do a thing at his discretion, it is to be understood of sound discretion, and according to law, and that this Court hath power to redress things otherwise done by them’.

Thus, in almost all the democratic countries it is accepted that discretion conferred on the administration is not unfettered, uncontrolled, or non-reviewable by the courts.

8.3. Historical Background of Judicial Review in Tanzania

Since the main objective of judicial review as discussed on the fore going part as to supervise the administrative bodies decision making and policy implementation, during much of the colonial period judicial review had virtually no role to play for the simple reason that colonialism itself was one gigantic abuse of power. Access to colonial courts which were racially segregated was denied, the large majority courts in effect served largely the immigrant communities involved in commercial and other such enterprises.

For the first two decades of independence the legal terrain remained much the same although the trappings of racism in the colonial law were removed. Judicial activities in the field of judicial review began to pick up hesitantly in the 1980’s as the arbitrary use of the administrative power affecting property owners began to be challenged in courts. See the case of Patman Garmets v Tanzania Manufactures[13], Thereafter, emerged a few courageous people who stood up and challenged the presidential powers under the Preventive Deportation Act of 1962 though they were always unsuccessful. At the other end of the scale, the legal aid of the Faculty of Law of the University of Dar es Salaam filed several judicial review applications in labour matters, for example Hamis Ally Ruhondo & 15 others v TAZARA[14], which in the sense was a rediscovery of judicial review mechanism to challenge administrative power. In fact it was the justifiability of the Bill of Rights which gave the big boast to the judicial positivism in the field of judicial review. The Bills of Rights was first introduced in Tanzanian Constitution in 1984 by the 5^th Constitutional Amendment.

8.3.1. Sources of Supervisory Jurisdiction (Judicial Review) in Tanzania

(a) The Constitution of the United Republic of Tanzania, 1977

The High Court has been established by Article as the superior court of record in any matter which ‘in accordance with legal traditions and conventional practices’ obtaining in Tanzania, is to be dealt with the High Court. It can be said that by 1977 the supervisory jurisdiction of the High Court through judicial review had become part of the legal tradition and practice in Tanzania. Article.13 (6) (a) of Constitution also stresses this view by providing the right of appeal or ‘any other legal remedy’ this presumably includes Judicial Review.

(b)The Judicature and Application of Laws Act

The supervisory power of the High Court is derived from Section 2(3) of the JALA. This provision provides that the High Court is vested with powers to exercise its jurisdiction in conformity with the substance of the Common Law, Doctrine of Equity and with powers vested in and according to the procedure and practice observed by and before the Courts of Justice in England. Therefore, it can be said that, the substantive law, the practice and procedures obtained in England on the date of reception.

(c)The Criminal Procedure Act

This is another source of judicial review on criminal cases, thus a power exercised by the High Court by virtue of Section 390 whereby a writ of Habeas Corpus is clearly provided for.

(d)The Law Reform (Fatal Accidents and Miscellaneous Provisions) Act

This was stated by Samatta J in the case of Chavda v Director of Immigration Services where he stated this law as being ‘the legislation which confers on this Court the power to grant prerogative remedies. However, Proffesor Shivji criticized this saying that it is an erroneous belief because the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act only changes the designation of the three prerogative remedies of Mandamus, Certiorari and Prohibition from writs to orders a change which was brought about in England in 1938 but does not constitute the source of jurisdiction.

8.3.2. Bodies subjected to Judicial Review

(a) Public Bodies and Officials

This includes the Ministers, Ministries and Government Officials and Government departments. Thus, the Government ministries, other public officials and bodies exercising public functions under the authority of law including statutory corporations, for example, institutions for learning, governmental parastatals, etc. read the case of Simeon Manyaki v Institute of Financial Management[15].

(b)Private Bodies with Public Functions

It is well-settled by Tanzanian case laws that public bodies and officials as well as domestic tribunals such as associations, clubs and societies are amenable to judicial review. A body which is not directly established by the statute but is regulated by it, therefore derives some of its powers under statute is also amenable to judicial review. For example, schools are regulated by the National Education Act, read the case of Nyirabu and Others v A.G. & Board Chairman Songea Boys Secondary School[16].

8.3.3. Institution of Judicial Review

The institution of judicial review involves two stages;

1.      Leave Stage

At this stage application is made to the High Court for leave to file Judicial Review. This application is made by way of chamber summons supported by an affidavit. At this stage the court determines whether there exists a good case to be taken for judicial review or not. i.e. the court determines whether the case is not frivolous. The application is made ex-parte. The applicant has to show that he has no any other alternative remedy than going for judicial review.

The affidavit must depose clearly to both the material facts as well as the grounds for the application. It is now a well established principle that application for leave instated by chamber summons accompanied by statements of the grounds and an affidavit. This was stated by Kyando J, in the case of Nkuzi v Tanzania Sisal Authority, whereas in this case the court struck out an application as incompetent for absence of statement of grounds. However, Lugakingira J adjourned the matter to allow the applicant to file the statement of the grounds in the case of Mwakibete v The Principle.

At the leave stage the court shall summon the A.G to appear as a party, if he does not appear on the date mentioned in the summons the court may proceed ex-parte. Read the case of Mwanza Restaurant v Mwanza Municipal Director[17]. The A.G appears as the necessary party wearing the cap of the respondent.

2.      Application for the Judicial Review after the leave has been granted

After the leave is granted, the applicant must file a new application. However, this is more theoretical, most practitioners do not bother to file new application they just carry over to this stage the papers filed for the leave stage.

Matters of evidence in judicial review are mainly by affidavits. The deponent can be cross-examined but this is rarely done in practice, it is more theoretical.

8.4. Grounds for Judicial Review

The court while exercising the powers of judicial review it should not be understood as it does exercise appellate powers, judicial review is not intended to take away from administrative authorities the powers and discretion properly vested in them by law and substitute to courts as the bodies making the decisions, therefore, judicial review is not a weapon but protection against abuse of discretionary powers[18]. It was once observed by Lord Brightman[19] that ‘Judicial review is concerned not with the decision, but with the decision – making process. Unless that restriction on the power of the court is observed, the court in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power’. Therefore, as far as judicial review is concerned to the discretionary powers of the administrative authorities, the duty of the court is to confine itself to the question of legality, whereas its concern should be in the following areas[20];

·         Whether a decision – making authority exceed its powers

·         Committed an error of law,

·         Committed a breach of the rules of natural justice,

·         Reached a decision which no reasonable tribunal would have reached, or

·         Abuse of its powers

There are circumstances on which the courts would interfere with the discretionary powers exercised by the administration, these are as follows:

·         Failure to exercise discretion; or

·         Excess or abuse of discretion.

8.4.1. Failure to exercise discretion

It has to be noted that the main purpose of conferring discretionary powers on an administrative authority is that the authority itself must exercise the said power, whereas if there is failure to exercise discretion on the part of that authority the action will be bad[21]. Thus, the following are the circumstances which amount to failure to exercise discretion;

A.     Sub – delegation

A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another[22]. The very object of conferring a power on a particular administrative authority is that the power must be exercised by that authority and cannot be sub - delegated to any other authority or official.

In the case of Sahni Silk Mills v ESI Corporation[23], the Parent Act enabled the corporation to delegate its power to recover damages to the Director General, who, however, in turn sub – delegated the said power to Regional Directors. Since there was no provision permitting the Director General to sub – delegate his power the action was held to be bad.

B.     Imposing fetters on discretion by self – imposing rules of policy

It is the duty of an authority entrusted with discretionary power must exercise the same after considering individual case. However, there is a tendency on part of administrative authorities of imposing fetters on its discretion by adopting fixed rules of the policy to be applied in all cases coming before it; this will amount to the failure to exercise discretion. The procedure for which the authority has to follow is that it must consider the facts of each case and apply its mind in deciding the same. If any general rule is pronounced, which will be applied to all cases, there is no question of considering the facts of an individual case at all and exercising discretion by the authority[24].

In the case of Keshavan Bhaskaran v State of Kerala[25], the relevant rule provided that no school – leaving certificate would be granted to any person unless he had completed fifteen years of age. The Director was, however, empowered to grant exemption from this rule in deserving cases under certain circumstances. But the Director had made an invariable rule of not granting exemption unless the deficiency in age was less than two years. The court held that the rule of policy was contrary to law.

However, this does not mean that no principle can be laid down or policy adopted. The only requirement is that even when general policy is adopted, each case must be considered on its own merits. It was once observed in the case of British Oxygen Co.Ltd. v Minister of Technology[26], whereas Lord Reid rightly states, a Minister having a discretion,, may formulate  a policy or make a limiting rule as to the future exercise of his discretion, if he thinks that good administration requires it, provided the authority is always willing to listen to anyone with something new to say. Also, Lord Cooke, J rightly observed in the case of Stringer v Minister of Housing[27]  that ‘a Minister charged with the duty of making individual administrative decisions in a fair and impartial manner may nevertheless have a general policy in regard to matters which are relevant to those decisions, provided that the existence of that general policy does not preclude him from fairly judging all the issues which are relevant to each individual case as it comes up for decision’.

C.     Acting under dictation

Sometimes, an authority entrusted with a power does not exercise that power but acts under the dictation of a superior authority. Here, the authority invested with the power purports to act on its own but in substance the power is exercised by another, whereas the authority concerned does not apply its mind and take action on its own judgment, even though it was not intended by the statute. It is well – settled that if the authority permits its decision to be influenced by the dictation of the others, it would amount to abdication and surrender of discretion[28].

In the case of Commissioner of Police v Gordhandas[29], under the City of Bombay Police Act, 1902, the Commissioner of Police granted licence for construction of a cinema theatre. But, later on, he cancelled it at the direction of the State Government. The Supreme Court set aside the order of cancellation of licence as the Commissioner had acted merely as the agent of the Government.

D.     Non – application of mind

When a discretionary power is conferred on the authority, the said authority must exercise after applying its mind to the facts and circumstances of the case in hand. If this condition is not satisfied, there is clear non – application of mind on the part of the authority concerned. Thus, the authority might be acting mechanically, without due care and caution or without a sense of responsibility in the exercise of its discretion.

In the case of Barium Chemicals Ltd. V Company Law Board[30], an order of investigation against the petitioner company was passed by the Central Government. Under the Companies Act, 1956, the Government was empowered to issue such order if, ‘there are circumstances suggesting fraud on the part of the management’. It was held by the Supreme Court that it was necessary for the Central Government to state the circumstances which led to the impugned action so that the same could be examined by the Court.

ADECON FISHERIES (T) LTD v DIRECTOR FOR FISHERIES AND OTHERS[31]

The applicants applied for various orders against the respondents arising out of the refusal of a fishing licence for the 1996 fishing period. In 1994 the Minister for Tourism, Natural Resources and the Environment (the 2nd respondent) promulgated Government Notice 370 of 1994 whereby it was ordered that fishing vessels had to comply with certain specifications relating to overall length, tonnage and engine power. It was specified that the vessel's main engine bhp should not exceed 500. The applicants' vessel was modified for these purposes and although it marginally exceeded   the maximum length its engine power was reduced to comply with the requirements. Notwithstanding the modification, the licence was not granted. Aggrieved by this decision the applicant applied to court for the following relief: 

         (i) an order of certiorari to remove into the court GN 370 of 1994 for the purpose of it being quashed for being unreasonable; (ii) an order of certiorari to remove into the court the decision made by the first and second respondents refusing to issue a fishing licence and for the quashing thereof; (iii) an order of mandamus directing the first and second respondents to issue a fishing licence and to guide their action in terms of the provisions of the National Investment (Promotion and Protection) Act 10 of 1990; (iv) an order of mandamus directing the first and second respondents to respect the certificate of approval issued to the applicants by the third respondent; (v) an order of mandamus directing the third respondent to respect the certificate of approval issued to the applicants  and protect them from irregular procedure.

Held:

         (i)Government Notice 370 of 1994 had been made under s 7 of the Fisheries Act 6 of 1970 which empowered the Minister responsible for fisheries to make regulations for inter alia the protection of fish resources. There was nothing to indicate that the Minister had acted ultra vires in sanctioning GN 370. Neither was there anything to show that GN 370 was unreasonable.

         (ii) There was no provision which stipulated that once the IPC issued an investor with a certificate of approval then the Director of Fisheries or the Minister had to issue him with a fishing licence. 

         (iii) If the third respondent had a duty of care to protect the applicants and he breached that duty of care and the applicants had suffered a financial loss then the remedy was to be found somewhere else and not by an order of mandamus.

         (iv) The discretion which the first respondent had to exercise in awarding fishing licences had to be exercised with a judicial mind: in refusing the applicant's licence the first and second respondents had acted under a false belief that the appellant's vessel exceeded the specified 500 bhp and the decision was accordingly not reached on the basis of fairness and justice and had to be quashed. 

E.      Powers coupled with duty

A number of statutes confer powers on administrative authorities and officers to be exercised by them in their discretion. Such powers are conferred in permissive language such as ‘may’, ‘it shall be lawful’, ‘it may be permissible’, etc. the question is whether it is open to the authorities to exercise or not to exercise the power at their wills.

It has to be well conceived that discretionary powers are frequently coupled with duties. It was once observed by Lord Blackburn that, ‘enabling words were the words to effectuate a legal right’.

In the case of Julius v Lord Bishop of Oxford[32], the bishop was empowered to issue a commission of inquiry in case of alleged misconduct by a clergyman, either on an application by someone or suo motto and when such an application was made, the question was whether the Bishop had a right to refuse the commission. The House of Lords held that the Bishop has discretion to act pursuant to the complaint and no mandatory duty was imposed on him. However, Earl Cairns, L.C. made the following observation;

Where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise that power ought to be exercised, and the court will require it to be exercised.

In the case of R v Metropolitan Police Commander[33], it was held that the licensing authorities were bound to renew licences of the cab-drivers if the prescribed procedural requirements had been complied with. Also in the case of R v Newcastle-upon-Tyne Corporation[34], local authorities were bound to approve building plans if they were in conformity with by-law.

8.4.2. Excess or Abuse of Discretion

Whenever the discretionary power is conferred on administrative authority, it must be exercised according to law, whereas when the mode of exercising a valid power is improper or unreasonable, there is an abuse of the power[35]. Therefore the excess or abuse of discretion may be inferred from the following circumstances;

A.     Absence of Power

It is well-settled that there can be no exercise of power unless such power exists in law. If the power does not exist, the purported exercise of power would be non-existent and void. Likewise, where the source of power exists, exercise of it is referable only to that source and not to some other source.

In the case of R v Minister for Transport[36], even though the Minister had no power to revoke the licence, he passed an order of revocation. The action was held ultra vires and without jurisdiction.

B.     Exceeding Jurisdiction

An administrative authority must exercise the power within the limits of the statute and if it exceeds those limits, the action will be held ultra vires. A question whether the authority acted within the limits of its power or exceeded it can always be decided by a court.

In London Country Council v Attorney General[37], the local authority was empowered to operate tramways. The local authority also carried on bus services. An injunction against the operation of buses by the Council was duly granted.

C.     Irrelevant Considerations

The power conferred on the administrative authority by the statute must be exercised on the considerations relevant to the purpose for which it is conferred. Instead, if the authority takes into account wholly irrelevant or extraneous considerations the exercise of power by the authority will be ultra vires and the action bad. It is settled law that where a statute requires an authority to exercise power, such authority must be satisfied about existence of the grounds mentioned in the statute.

In the State of M.P. v Ramshankel[38], services of the teacher were terminated on the ground that he had taken part in RSS and jan Sangh activities. Observing that to deny employment to an individual because of his political affinities would be violative of Article 14 and 16 of the Indian Constitution, the Supreme Court set aside the order.

D.     Leaving out Relevant considerations

As discussed above, the administrative authority cannot take into account irrelevant or extraneous considerations. Similarly, if the authority fails to take into account relevant considerations, then also, the exercise of power would be bad. But it is sometimes very difficult to prove that certain relevant factors have not been taken into account by the authority, unless detailed reasons are given in the impugned order itself from which it can be inferred. Still, however, sometimes the relevant considerations are prescribed by the statute itself, e.g. “regard shall be had to”, “must have regard to”, etc. here the matter so specified must be taken into account.

In Rampur Distillery Co. v Company Law Board[39], the company Law Board refused to give its approval for renewing the managing agency of the Company. The reason given by the Board for not giving its approval was that the Vivian Bose Commission had severely criticized the dealings of the Managing Director, Mr. Dalmia. The court conceded that the past conduct of the directors was a relevant consideration, but before taking a final decision, it should take into account their present activities also.

E.      Malafide

It is well-settled that every power must be exercised by the authority reasonably and lawfully. Therefore, it is the duty of the court to see that all authorities exercise their powers properly, lawfully and in good faith, whereas if the power is not exercised in good faith, the exercise of power is bad and the action illegal.

Mala fide means ill-will, dishonest intention or corrupt motive. A power may be exercised maliciously, out of personal animosity, ill-will or vengeance or fraudulently and with intent to achieve an object foreign to the statute[40]. There are two types of malafide, thus ‘express malice’ or ‘malice in fact’ and ‘implied malice’ or ‘legal malice’.

·         Malice in fact

When an administrative action is taken out of personal animosity, ill-will, vengeance or dishonest intention, the action it amount to malice in fact or implied malice, therefore the action necessarily requires to be struck down and quashed.

In Pratap Singh v State of Punjab[41], the petitioner was a civil surgeon and he had taken leave preparatory to retirement. Initially the leave was granted, but subsequently it was revoked. He was placed under suspension, the departmental inquiry was instituted against him and, ultimately, he was removed from the service. The petitioner alleged that the disciplinary proceedings had been instituted against him at the instance of the then Chief Minister to wreak personal vengeance against him as he had not yielded to the illegal demands of the former. The Supreme Court accepted the contention, held the exercise of power to be mala fide and quashed the order.

·         Malice in law

When an action is taken or power is exercised without just or reasonable cause or for purpose foreign to the statute, it amount to malice in law and the exercise of power would be bad and the action ultra vires.

In Municipal Council of Sydney v Campbell[42], under the relevant statute the Council was empowered to acquire land for ‘carrying out improvements in or remodeling any portion of the city’. The Council acquired the disputed land for expanding a street. But in fact the object was to get the benefit of probable increase in the value of land as a result of the proposed extension of the highway. No plan for improving or remodeling was proposed or considered by the Council. It was held that the power was exercised with ulterior object and hence it was ultra vires.

F.      Improper Object: Collateral purposes

A statutory power conferred on the authority must be exercised for the purpose alone and if it is exercised for a different purpose, there is abuse of the power by the authority and the action may be quashed. The distinction between improper object and mala fide is that the latter, personal ill-will, malice or oblique motive is present, while in the former it may not be so, and the action may be bona fide and honest and yet, if it is not contemplated by the relevant statute, it may be set aside.

In Banglore Medical Trust v Muddappa[43], a piece of land ear-marked for the public park was allotted at the instance of the then Chief Minister to a private trust for construction of nursing home. It was contended that the action was taken in public interest and the local authority would get income. The Supreme Court, however, held that the ‘exercise of power was contrary to the purpose for which it was conferred under the statute’.

G.     Non – Observance of natural justice

It is well-settled law that even if the exercise of power is purely administrative in nature, if it adversely affects any person, the principles of natural justice must be observed and the person concerned must be heard. Violation of the principles of natural justice makes the exercise of power ultra vires and void.

H.     Unreasonableness

As it has been pointed out from the outset that a discretionary power conferred on an administrative authority must be exercised by the authority reasonably, whereas if the power is exercised unreasonably, there is an abuse of power and the action of the authority will be ultra vires. The term unreasonable may include various things such as; irrelevant or extraneous considerations which might have been taken into account by the authority or improper or collateral purpose or mala fide exercise of power by the authority and the action may be set aside by courts.

In Roberts v Hopwood[44], the local authority was empowered to pay ‘such wages as it may think fit’. In exercise of this power, the authority fixed the wages at 4 Sterling Pounds per week to the lowest grade worker in 1921-22. The court held that though discretion was conferred, it was not exercised reasonably and the action was bad. According to Lord Wrenbury, ‘may think fit’ means ‘may reasonably think fit’. Among other things His Lordship observed that ‘a person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does not empower a man to do what he likes merely because he is minded to so – he must in the exercise of his discretion do not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course which reason directs. He must act reasonably’.

JAMES F GWAGILO v ATTORNEY GENERAL[45]           

The plaintiff, a seasoned civil servant, was charged under the Economic and Organised Crime Control Act 1984 and acquitted. Then disciplinary proceedings were instituted against him under the Civil Service Regulations; the proceedings ended in his favour. He was then removed from office by, as stated in the letter communicating the decision to remove him, the President directing that he be removed in the public interest. He filed a suit for a declaration that his removal from office was wrongful. The defendant raised a preliminary point to the effect that the court had no jurisdiction to try the case because the President had a prerogative power to remove a civil servant in the public interest; that civil servants held office at the pleasure of the President; and that the President’s decision to remove a civil servant in the public interest could not be enquired into by any court.

Held:

(i)                 The prerogative power of the Crown to dismiss a civil servant at will ended, and did not devolve to the President, when Tanganyika became a Republic in 1962; instead the  President could only remove a civil servant in the public interest under s 20(3) of the Civil Service Act 1962, Cap 509, now replaced by the Civil Service Act 1989 (Act No 16 of 1989);

(ii)               Termination of a civil servant at the will of the President is not the same thing as removal in the public interest; in the former the president need not show the cause for the discharge    while in the latter he must show the public interest being served;

(iii)             When removing a civil servant in the public interest, the President is bound to give reasons indicating the public interest to be served; under the Constitution the civil servant so  removed has the right to appeal against, or to apply for judicial review of, that removal and if no reasons are given therefore, that constitutional right will be rendered ineffective and illusory;

(iv)             Disclosure of reasons for removal of a civil servant in the public interest is also necessary so as to reduce the possibility of casualness, arbitrariness and abuse of power in the decision making process and to instill public confidence in it and maintain its integrity, and to    satisfy a basic need for fair play;

(v)               The notion of a subjective or unfettered discretion is contrary to the Rule of Law; although the Civil Service Act 1989 says that the President may remove a civil servant from office if he considers it to be in the public interest to do so, the discretion of the President must    nevertheless be exercised objectively and the High Court may enquire into that exercise to see if it was properly exercised;

(vi)             Statutory clauses ousting the jurisdiction of the courts are ineffective to exclude the power of the High Court to exercise its supervisory role of judicial review conferred on it by article  108(2) of the Constitution;

8.4.3. Other grounds

Due to the rapid growth of administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by courts, wereas if an action taken by any authority is contrary to law, improper, unreasonable or irrational, a court can interfere with such action by exercising power of judicial review. Thus these other grounds are known as the doctrine of proportionality and legitimate expectation.

        I.            The Doctrine of Proportionality

Proportionality is ‘concerned with the way in which the decision – maker has ordered his priorities, the very essence of decision – making consists in the attribution of relative importance to the factors in the case’. In the human right context, proportionality involves a ‘balancing test’ and the ‘necessity test’. The former scrutinises excessive and onerous penalties or infringement of rights or interest whereas the latter takes into account other less restrictive alternatives[46].

The doctrine ordains that administrative measures must not be more drastic than necessary for attaining the desired result. If an action taken by an authority is grossly disproportionate, the said decision is not immune from judicial scrutiny. Apart from the fact that it is improper and unreasonable exercise of power, it shocks the conscience of the court and amount to evidence of bias and prejudice[47].

In Ranjit Thakur v Union of India[48], an army officer did not obey the lawful command of his superior officer by not eating food offered to him. Court martial proceedings were initiated and a sentense of rigorous imprisonment of one year was imposed. He was also dismissed from the service, with added disqualification that he will be unfit for future employment. The said order was challenged inter alia on the ground that the punishment was gross disproportionate. Upholding the contention, following Council of Service Unions, and emphasising that, ‘all powers have legal limits’, Venkatachaliah, J rightly observed: ‘the question of the choice and quantum of the punishment is within the jurisdiction and discretion of the court-martial. But the sentense has to suit the offence and the offender. It should not be vindicative or unduly harsh. It should not be as disproportionate to the offence as to shock the conscience and amount in itself a conclusive evidence of bias. The doctrine of proportionality as part of the concept of judicial review, would ensure that even on aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentense is an outrageous defiance of logic, then the sentense would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review.

The doctrine of proportionality, as the part of judicial review ensures that a decision otherwise within the province of administrative authority must not be arbitrary, irrational or unreasonable. Though in judicial review the court is not concerned with the correctness of the decision but the way the decision is taken, the very decision – making process involves attributing relative importance to various aspects in the case and there the doctrine of proportionality enters[49].

     II.            The Doctrine of Legitimate Expectation

This doctrine explain that a person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. Where a decision of an administrative authority adversely affects legal rights of an individual, duty to act judicially is implicit. But even in cases where there is no legal right, he may still have legitimate expectation of receiving a benefit or privilege. Such expectation may arise either from express promise or from existence of regular practice which the applicant can reasonably expect to continue. In such cases the court may protect his expectation by invoking principles analogous to natural justice and fair play in action. The Court may not insist an administrative authority to act judicially but may still insist him to act fairly[50].

Principles of natural justice will apply in cases where there is some right which is likely to be affected by an act of administration. Good administration, however, demands observance of the doctrine of reasonableness in other situations also where the citizens may legitimately expect to be treated fairly. Thus a doctrine of legitimate expectation have been developed both in the context of reasonableness and in the context of natural justice[51].

The doctrine was well explained in the case of Attorney General of Hong Kong v Ng Yuen Shiu[52], whereas the government announced that illegal immigrants would not be deported till their cases would be considered individually on merits. A deportation order was passed against the applicant without affording opportunity. Quashing the order the court observed through Lord Fraser that, ‘when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with its statutory duty’.

MOHAMED JAWAD MROUCH v MINISTER FOR HOME AFFAIRS[53]

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 cancelled 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:

(i)                 The Applicant learnt 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.    

(ii)               The Applicant was charged under laws and by authorities independent of the powers of the Minister.

(iii)             A foreign alien (sic) has no right to enter the Republic except by leave; and should leave be granted, he cannot overstay the permissible period by a single day.

(iv)             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.

(v)               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.

(vi)             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.

(vii)           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.

(viii)         A mandamus is issued, ordering the Director to restore `Residence Permit Class `A' No.0043607' to the Applicant forthwith.

Examples of circumstances which would amount to legitimate expectation

§  The promise of hearing before the decision is taken may give rise to a legitimate expectation that a hearing will be given.

§  A past practice of consulting before the decision is taken may give rise to an expectation of consultation before any future decision is taken

§  A promise to confer, or past practice of conferring a substantive benefit, may give rise to an expectation that the individual will be given a hearing before a decision is taken not to confer the benefit.

§  The actual enjoyment of the benefit may create a legitimate expectation that the benefit will not be removed without the individual being given a hearing.

The existence of a legitimate expectation may have a number of consequences, such as

§  It may give locus standi to a claimant to seek leave to apply for judicial review

§  It may mean that the authority ought not to act so as to defeat that expectation justifiable cause

§  It may also mean that before defeating a person’s legitimate expectation, the authority should afford him an opportunity of making representation on the matter.

When a case of legitimate expectation is made out by the applicant, the Court will consider the prayer of the applicant for grant of relief. The protection of legitimate expectation does not require the fulfillment of the expectation where public interest requires otherwise. The court my uphold the decision taken by the authority on the basis of the overriding public interest. Thus, protection of doctrine of legitimate expectation and grant of relief in favour of the claimant are two distinct and separate matters and presence of the former does not necessarily results the latter[54].

The doctrine of legitimate expectation has its own limitations, thus as follows;

§  The concept of legitimate expectation is only a procedural and has no substantive impact

In A.G. for New South Wales v Quin[55], whereas the applicant was a stipendiary Magistrate in charge of the Court of Petty Sessions. By an Act of Legislature that court was replaced by Local Court. Though applied, Quin was not appointed under the new system. That action was challenged. The court dismissed the claim observing that if substantive protection is to be accorded to legitimate expectations, it would result in interference with administrative decisions on merits which is not permissible.

§  The doctrine does not apply to legislative activities

In R v Ministry of Agriculture[56], conditions were imposed on fishing licences. The said action was challenged contending that the new policy was against ‘legitimate expectations’. Rejecting the argument and dismissing the sanction, the court held that the doctrine of ‘legitimate expectation’ cannot preclude legislation.

§  The doctrine of legitimate expectation does not apply if it is contrary to public policy or against the security of State

In Council of Civil Service Unions v Minister for Civil Service[57], the staff of Government Communications Head Quarters (GCUQ) had the right to unionisation. By an order of the government, the employees of GCHQ were deprived of this right. The union challenged the said action contending that the employees of GCHQ have legitimate expectations of being consulted before the Minister took action. Though in theory the House of Lords agreed with the argument of the Union about legitimate expectations, it held that ‘the Security considerations put forward by the Government – override the right of Union to prior consultation’.

Thus, from the discussion, it is clear that the doctrine of legitimate expectation in essence imposes a duty to act fairly.

Finally, it is a fundamental principle of law that every power must be exercised within the four corners of the law and within the legal limits. Exercise of administrative power is not an exception to that basic rule. The doctrines by which those limits are ascertained and enforced from the marrow of administrative law. Unfettered discretion cannot exist where the rule of law reigns. Again, all power is capable of abuse, and that the power to prevent the abuse is the acid test of effective judicial review[58]. At the same time, however, the power of judicial review is not unqualified or unlimited. If the courts were to assume jurisdiction to review administrative acts which are ‘unfair’ in their opinion (on merits), the courts would assume jurisdiction to do the very thing which is to be done by administration. If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk[59]. It is submitted that following observations of Frankfurter, J. in Trop v Dulles[60], lay down correct legal position; ‘all power is, in Madison’s Phrase ‘of an encroaching nature’. Judicial Power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not less so since the only restraint upon it is self restraint[61]’.

8.5. Differences between Appeal and Review

·         While an appeal challenge the decision on merits (whether the decision was right or wrong), review challenges the legality of the decision (not merits of the case) e.g. excess of power, abuse of power, improper procedure etc.

·         Whereas appeal is a creature of the statute e.g the Appellate Jurisdiction Act of 1979, the MCA, review is a prerogative remedy that the High Court has inherent jurisdiction. The power is derived from the Constitution, S.2 of JALA

·         While substitution on the merits of the decision follows an appeal, there is no substitution on review

·         The procedure for appeal is too general and not complicated as that of review where it involves two stages, thus application for the leave of the court and application for issuing prerogative oreders.

·         While appeal can be exercised by any appellate court review is originally exercisible by the High Court

·         While appeal is a Constitutional right as per Article.13(6)(a), review is not a Constitutional right but a discretionary right, therefore can be exercised when other remedies are not available.

·         While appeal applies to both public and private law, review applies to any public law

·         Whereas appeal may be from a tribunal to a higher tribunal, to Minister, to a Court; review is by the High Court on a decision of a subordinate authority.

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[1] C.K. Takwani: Lectures of Administrative Law, p.236

[2] Ibid

[3] Administrative Powers over Persons and Property, 1928, p.71 also quoted by C.K. Takwani: Lectures of Administrative Law, p.236

[4] Henry Abraham cited in Chandra Kumar v Union of India, (1997) 3 SCC 261

[5] Chief Constable v Evans (1982) 3 All ER 141, also cited by C.K. Takwani: Lectures of Administrative Law, p.237

[6] Tata Cellular v Union of India (1994) 6 SCC 651

[7] C.K. Takwani: Lectures of Administrative Law, p.238

[8] Ibid

[9] Ibid

[10] (1905) AC 426

[11] Wade: Courts and Administrative Process, 1949, 63 LQR 173

[12] (1647) Style 42

[13] [1981] TLR 303

[14] Civil Appeal No.1 of 1986

[15][15] Misc.Civ Application No.68 of 1994 HC DSM

[16] Misc.Civ.App No.3 of 1994 H.C. Songea

[17] Misc. Civil Cause No.3 of 1987

[18] C.K. Takwani: Lectures of Administrative Law, p.243

[19] In the case of Chief Constable v Evans (1982) 3 All ER 141

[20] Tata Celluar v Union of India, (1994) 6 SCC 651

[21] C.K. Takwani: Lectures of Administrative Law, p.244

[22] De Smith: Judicial Review of Administrative Action, 1995, 357

[23] (1994) 5 SCC 346

[24] C.K. Takwani: Lectures of Administrative Law, p.245

[25] AIR 1961 Ker 23

[26] (1970) 3 WLR

[27] (1970) 1 WRL 1281

[28] C.K. Takwani: Lectures of Administrative Law, p.248

[29] AIR  1952 SC 16

[30] AIR 1967 SC 2

[31] 1996 TLR 352 (HC)

[32] (1880) 5 AC 214

[33] (1911) 2 QB 1131

[34] (1889) 60 LT 963

[35] Markose: Judicial Control of Administrative Action in India, 1956, p.417

[36] (1934) 1 KB 277

[37] (1902) AC 165

[38] (1983) 2SCC 145

[39] (1969) 2 SCC 774

[40] De Smith: Judicial Review of the Administrative Action, 1995, pp.344-46

[41] AIR 1964 SC 72

[42] (1925) AC 338

[43] (1991) 4 SCC 54

[44] (1925) AC 578

[45] 1994 TLR 73 (HC)

[46] Union of India v G. Ganayatham (1997) 7 SCC 463

[47] Wade: Administrative Law, (1994) p.403

[48] (1987) 4 SCC 611

[49] C.K. Takwani: Lectures on Administrative Law, p.277

[50] Schmidt v Secy of State (1969) 1 All ER 

[51] C.K. Takwani: Lectures on Administrative Law, p.277

[52] (1983) 2 All ER 346

[53] 1996 TLR 142 (HC)

[54] Union of India v Hindustan Dev. Corpn (1993) 3 SCC 499

[55] (1990) 64 Aust LJR 327

[56] (1991) 1 All ER 41

[57] (1984) 3 All ER 935

[58] Wade: Administrative Law, (1994)

[59] A.G of New South Wales v Quin, (1990) 64 Aust LJR 327

[60] (1958) 35 US 86

[61] Ibid