Samatta JK: In one of his well-known books, The Road to Justice, Sir Alfred Denning discusses the importance of a judge giving reasons for his decision. He states as follows, at 29: B
`The judge must give reasons for his decision: for by so doing, he gives proof that he has heard and considered the evidence and arguments that have been produced before him on each side: and also that he has not taken extraneous considerations into account. It is of course true that his decision C may be correct even though he should give no reasons for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only that a correct decision should be reached, but also that it should be seen to be based on reasons; and that can only be seen if the judge himself states his reasons. Furthermore if his reasons are at fault, then they afford a basis on which the party D aggrieved by his decision can appeal to a higher court. No judge is infallible, and every system of justice must provide for an appeal to a higher court to correct the errors of the judge below. The cry of Paul "I appeal unto Caesar" represents a deep-seated human response. But no appeal can properly be determined unless the appellate court knows the reasons for the decision of the lower court. For E that purpose, if for no other, the judge who tries the case must give his reasons.'
In the application now before me I have to determine whether in making his decision on a F reference to the Minister for Labour (the Minister) under s 26 of the Security Employment Act 1964, Cap 574 (the Act), the Labour Commissioner (the Commissioner), who exercises powers delegated to him by the Minister under s 44, is under obligation in law to give reasons. The application, by way of chamber summons, G is for an order of certiorari to bring up and quash the Labour Commissioner's decision by which he confirmed a decision reached by the Conciliation Board of Dar es Salaam that the respondent, whose services with his employer, the applicant company, were terminated, be re-instated. The reference to the Minister consisted of a two-page H document in which the Board's decision was strenuously attacked. The Commissioner's decision, which was communicated to the applicant company on Form 8, was couched, when translated, in the following words: `In accordance with s 26(2) of the security of Employment Act, 1964, I confirm the decision of the conciliation Board. The employee I should be re-instated'. Not a single reason was given for this decision. Section 27(1)
of the Act makes a decision of the Minister under s 26 final and conclusive. The A subsection reads as follows:
`27.--(1) The decision of the Minister on a reference to him under s 26, and, subject to any decision B on a reference to the Minister therefrom, the decision of a Board on a reference to it under this Part--
(a) shall be final and conclusive; and
(b) shall be binding on the parties to the reference, and the relationship between the parties in consequence of the matters in respect of which the reference was made shall be determined accordingly; and C
(c) may be enforced in any court of competent jurisdiction as if it were a decree'.
Mr Kalunga, for the applicant company, strenuously attacked the Commissioner's D decision. He contended that the failure by the Commissioner to give reasons for the decision makes it a nullity. According to the learned advocate, although in the past the decision-maker had no duty under the law to give reasons for his decision, the trend in some common law jurisdictions now is to establish a right to reasons. He went on to E submit that, to prevent decisions based on caprice or mala fide, a right to reasons should be recognised. Mr Mwidunda, Senior State Attorney, representing all the three respondents, opposed the application. Quite rightly, he drew my attention to the fact that there is no provision in the Act imposing a duty on the Minister or Commissioner to give F reasons for their decisions made under s 26 of the Act. According to the learned Senior State Attorney, instead of bringing the present application the applicant should have sought from the Commissioner reasons for his decision. Mr Mwidunda urged me to dismiss the application. G
What is the law on this matter? There is, under the common law, no general requirement that public authorities should give reasons for their decisions: see Breen v Amalgamated Engineering Union and Others(1), 190--191; R v Gaming Board for Great Britain Ex p Benaim and Khaida (2) In the former case, Lord Denning MR, posed and H proceeded to answer the question whether a statutory or domestic body is bound in law to give reasons for its decision. He said, at pp 190--191:
`... ought such a body, statutory or domestic, to give reasons for its decision ... ? Not always, but I sometimes. It all depends on what is fair in the circumstances'.
The absence in common law of a general rule requiring a decision-maker to give A reasons for his decision has been criticized by Professor H W R Wade in his book Administrative Law, 6th ed at 548 where he states as follows:
B `Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice. It is C also a healthy discipline for all who exercise power over others. "No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions". ' D
And at 934 of the same book, the learned author states:
`Reasoned decisions are not only vital for the purpose of showing the citizen that he is receiving justice: they are also a valuable discipline for the tribunal itself ... [F]or decisions generally a statement of reasons is one of the essentials of justice.' E
The importance of giving reasons for a decision is also discussed by Geoffrey A Flick in his book Natural Justice, Principles and Practical Application in which, at 87--88, he says: F
`... First, the requirement of a reasoned opinion provides considerable assurance that the decision will be better as a result of its being properly thought out. Second, reasons will enable a person who has a right of appeal to determine whether he has good grounds for an appeal and will inform him of the case he will have to meet if he does decide to appeal. In this regard, if an administrative G determination is not the result of a unanimous votes of the decision makers, the minority opinion may be of considerable value to an unsuccessful party.... Third, reasons will make a tribunal more amenable to the supervisory jurisdiction of the courts and will ensure that a tribunal is acting within its powers. H
That is to say, reasons will inform a person why a decision has been made and will make manifest any errors of law. Fourth, reasoned opinions will encourage public confidence in the administrative process. As was noted in a leading English case, even though a decision may be perfectly correct, if a party was not given reasons he "was left with the real grievance that he was not told why the I decision had been" (In re Poyser and Mills' Arbitration [1964] 2QB
478). The exposure to public scrutiny and criticism is healthy.... Fifth, reasons act as a check on the A exercise of discretion and expertise and will ensure that a tribunal was performed its functions of considering relevant factors (Davies v Price [1958] 1WLR 434), and will prevent arbitrary action: Donaldson v Board of Education of North Wildwood 320 A 2d 857 [1974]. Reasoned opinions also B provide additional guidance to those who advise parties as to their future conduct ...'
I would add that, insofar as natural persons are concerned, giving reasons for a decision constitutes a recognition that the parties are rational beings. C
Should I, in determining the instant application, apply the common law as it now stands or should I apply it after modifying it? This Court has, under s 2(2) of the Judicature and Application of Laws Ordinance, Cap 453, power to vary that law so as to make it suit D local conditions. Should I use that power in this matter? I think I should. It seems to me that the interests of justice call for the existence, in common law, of a general rule making it mandatory in matters of importance for public authorities, a term I use to include statutory and domestic bodies, to give reasons for their decisions. But what are E matters of importance? It is neither desirable nor possible to define that term, but certainly it should be taken to include all matters in which the liberty, livelihood or reputation of the individual is concerned or in which proprietary or pecuniary rights or F interests are at stake. In any other situation the decision-maker should be bound to give reasons only if he is requested by a party to do so. In reaching the view that in this branch of the common law variation is necessary I have been greatly encouraged by the memorable words of Denning LJ, in Nyali Ltd v Attorney-General (3) Discussing the G proviso to article 15 of the East Africa Order in Council, 1902, as amended by the East Africa Order in Council of 1911, which conferred similar power on the High Court of East Africa to modify the common law, the learned Lord Justice said, at 653: H
`The ... proviso says, however, that the common law is to apply "subject to such qualifications as local circumstances render necessary". This wise provision should, I think, be liberally construed. It is a recognition that the common law cannot be applied in a foreign land without considerable qualification. Just as with an English oak, so with the English common law. You cannot transplant it I to the African continent and expect it to retain the tough
character which it has in England. It will flourish indeed but it needs careful tending. So with the A common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour all the world over: but it has many refinements, which are not suited to other folk. These off-shoots must be cut away. In these far off lands the people must B have a law which they understand and which they will respect. The common law cannot fulfil this role except with considerable qualifications. The task of making these qualifications is entrusted to the judges of these lands. It is a great task. I trust that they will not fail therein.' C
Some people may argue that varying the common law in the manner I have indicated would result in placing more burden on the already busy decision-makers. This is an attractive argument, but I think Geoffrey A Flick's counter-argument in his book, cited supra, outweighs that argument. At p 89, the learned author states: D
`At least two arguments have been advanced against the giving of reasons. First, the giving of reasons would impose additional administrative burden and might well be an undue drain on the resources of an agency ... Such burdens may even result in the giving of canned reasons. Second, E reasons may hinder the manner in which a discretion is exercised and it may be though that the exercise of some discretion should be unreviewable by the courts. But considerations of administrative expediency should not mitigate principles of fairness and few, if any, discretion should be unreviewable.' F
In my considered opinion, it is a matter beyond rational controversy that, to borrow the language of the learned author in the book just cited, fundamental requirement of fair play requires that parties should know at the end of the day why a particular decision has G been taken. I think it is intolerable in a democratic society that the law should allow a decision-maker to whom an appeal or reference is made to make his decision without giving reasons why he has reached that decision. `The giving of reasons', said Lord Denning MR in Breen's case supra (at 191), `is one of the fundamentals of good H administration'. Bearing in mind the vast differences which exist between our people and those of England in both social and cultural fields and especially their knowledge of, and attitudes towards, decision-making public bodies, and taking into consideration the comparable educational backwardness of the majority of our people, I think it is in the I interests of justice and fair play that
the common law relating to the giving of reasons for decisions should be qualified in the A manner I have endeavoured to indicate. In my considered opinion, a duty to give reasons and a right to them should be recognised by our law and treated as being of decisive importance in administrative justice. Although a decision of the Minister or B Commissioner under s 26 of the Act is, according s 27(1), cited supra, final and conclusive, that does not mean the decision is not subject to review by courts. That remedy is not excluded by those or similar words: see Healey v Ministry of Health (4); R v Medical Appeal Tribunal Ex parte (5); Taylor v National Assistance Board (6), and C Tehrani and Another v Rostron (7). No appeal will lie against decisions protected by such words or phrases, but an aggrieved party may come to this Court and ask for prerogative orders. Nullity of a decision is not protected by words `final' or `conclusive'. It follows, as day follows night, that the decision which the applicant company has D complained against in the instant proceedings falls under this Court's surveillance. It should, perhaps, also be pointed out that neither the failure nor the refusal of a decision-maker to give reasons for his decision is a sufficient exclusion of the Court's surveillance: see Padfield v Minister of Agriculture, Fisheries and Food (8). E
I have sufficiently demonstrated, I hope, why I am of the opinion that the Commissioner's failure to give reasons for his impugned decision is a serious irregularity which makes that decision a nullity in law. An order for certiorari, like other prerogative orders, is a discretionary remedy. In my considered opinion, every factor in this matter speaks for F the discretion being exercised in favour of the applicant company. Mr Mwidunda submitted that certiorari cannot be used as an appeal. I agree. But it is a rule of common law that where a determination by a tribunal has been quashed by certiorari, the court G may, in its discretion, refrain from awarding a mandamus to direct the tribunal to redetermine the matter if satisfied that the tribunal will duly observe the law upon a rehearing, notwithstanding that the court could have effectively enforced an order of mandamus: see Halsbury's Laws of England, vol I, para 125 at 135. Should I invoke that H discretion and confine myself to quashing the Commissioner's decision or should I, notwithstanding that there is no such prayer in the application, make an order of mandamus directing redetermination of the reference? I confess that this question has exercised my mind quite considerably, but in the end I have reached a clear opinion on it. I Quashing the Commissioner's decision and letting the matter lie there will be unsatisfactory to the
applicant company as the decision of the Conciliation Board complained against will still A be in force. It seems to me, having given the matter careful attention, that an order of mandamus should be made, but it must be directed to the Minister himself and not the Commissioner. I am, of course, aware that by Govt Notice No 283 of 1971 the Minister B has, in terms of s 44 of the Act, delegated the functions imposed and the powers conferred upon him to hear and decide refences to the Commissioner. It is my view that that delegation does not make it legally impossible for this Court to make an order of mandamus directing the Minister to determine the applicant company's reference. The C law is that delegation does not imply a parting with powers by the person who grants the delegation; see Huth v Clarke(9); Gordon, Dadds & Co v Morris and Others (10); and Manton v Brighton Corporation (11). In Huth's case supra Lord Coleridge CJ said at 394--395: D
`But delegation does not imply a denudation of power and authority.... The word "delegation" implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given. Unless, therefore, it E is controlled by statute, the delegating power can at any time resume its authority.'
And at the latter page, Wills J, said, among other things:
`Delegation, as the word is generally used, does not imply a parting with powers by the person who F grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself. The best illustration of the use of the word is afforded by the maxim, Delegates non protest delegate, as to the meaning of which it is significant that it is dealt with in Broom's Legal Maxims under the law of contracts: it is never used by the legal G writers, so far as I am aware, as implying that the delegating person parts with his power in such a manner as to denude himself of his rights.'
While I do not case any aspersions upon the ability of the Commissioner to deal with the H reference with an impartial mind, I feel that, for justice not only to be done, but also to be seen to be done, the reference should now be determined by someone else, the Minister himself. I entertain no doubt that I have inherent power to make the order of I mandamus notwithstanding that there is no prayer for it.
Before parting with this application, I should like to make it perfectly clear that throughout A this ruling I have assumed, without deciding, that the conferring of adjudicatory powers upon the Minister does not violate the Constitution of the United Republic.
For the reasons I have given, I grant the application for order of certiorari and hereby B quash the Commissioner's decision confirming the decision of the Conciliation Board. The Minister for Labour, the first respondent, is hereby directed to personally determine the applicant company's reference in accordance with law as laid down in this ruling. There will be an order for costs against the respondents. C
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