Mwalusanya,J.: Judicial review is an important weapon in the hands of the judges of this country by which an ordinary citizen can challenge an oppressive administrative action. And judicial review by means of prerogative orders (certiorari, prohibition and mandamus) is one of those effective ways employed to challenge F administrative action. It is my conviction that the courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state. Equally however it is important G to realise that judicial review is not the same thing as substitution of the court's opinion on the merits for the opinion of the person or body to whom a discretionary decision-making power has been committed. It is for the executive to make administrative decisions. Parliament has empowered the executive to decide what it thinks necessary. It has to make H political and economic judgments. It may make a sound one or a bad one. The courts might have been able to make a better one than the executive made; but it must be remembered that parliament, no doubt for good reason, has not entrusted guidance to the courts.
I In the case at hand we are called upon to exercise judicial review by way of an order of mandamus. The applicant appeared
A in person and fought the case gallantly. The respondents were represented by counsel a State Attorney one Mr. Tendwa. At this juncture it should be pointed out that leave to apply for an order of mandamus was granted by Munyera J. in Misc. Civil Cause No. 14 of 1986. For all that we know mandamus is the procedure whereby a citizen B with sufficient legal interest may apply to the High Court to compel a public officer to perform a public duty entrusted to him. It is said it will be granted if the duty is in the nature of a public duty and especially affects the rights of an individual, provided there is no more appropriate remedy. The person or authority to whom it is issued must be either under a C statutory or legal duty to do something or not to do something; the duty itself being of an imperative nature. From the foregoing discussion it has been said there are few conditions to be proved in order for an order of mandamus to issue. These are:-
D 1. The applicant must have demanded performance and the respondents must have refused to perform.
2. The respondents as public officers must have a public duty to perform imposed on them by statute or any other law but it E should not be a duty owed solely to the state but should be a duty owed as well to the individual citizen.
3. The public duty imposed should be of an imperative nature and not a discretionary one.
4. The applicant must have a locus standi: that is, he must have sufficient interest in the matter he is applying for.
F 5. There should be no other appropriate remedy available to the applicant.
There has been a tendency by some of our judges to regard the above mentioned rules as immutable and fixed. With G respect, that is not true. The law on the prerogative orders is on the move to meet the changes of modern government. What was the position in 1960 as regards the contents of those rules is not the same now. The law has been constantly H changed by judges to see how effectively the law can protect an individual citizen from oppressive administrative actions. Lord Diplock of the House of Lords has soundly reminded us in the case of I.R.C. v Small Business: [1982] A.C. 617 at p.641 that:
I The rules (on prerogative orders) were made by the judges and by judges they can be changed; and so they have been
A over the years to meet the need to preserve the integrity of the rule of law despite changes in the social structure, methods of government and the extent to which the activities of private citizens are controlled by governmental authorities, that have been taking place continuously sometimes slowly, sometimes swiftly, since the rules were originally propounded. Those changes have B been particularly rapid since World War II. Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is today.
C So in England the rules of procedure on prerogative orders has been greatly changed by case-law and some rules have been now embodied in the U.K. Supreme Court Act of 1981.
In Tanzania no rules of procedure have been made by the Chief Justice as he is empowered so to do under s.18(1) of the D Law Reform (Fatal Accidents and Misc. Provisions) Ordinance (Amendment) Act No. 55 of 1968. We follow the common law as developed and expounded by the case-law in England and our Tanzania judges. That is a blessing in disguise for if we had fixed and immutable rules, that would have fettered the judges to develop the law to meet changing E conditions. As it is now the law on prerogative orders is constantly being developed by our judges. They often take relief from decisions of other Commonwealth countries and in this respect the decisions in the 'Law Reports of the F Commonwealth - the section on Constitutional and Administrative Law Reports (Professional Books Ltd.) published since 1985 is useful and commendable. An example of the changing nature of our laws in this field is as follows. For a long time past it was thought that there could be no judicial review by means of prerogative orders for administrative G actions as distinct from judicial and quasi-judicial acts: see Reide J. in Re an Application by Bukoba Gymkhana Club: [1963] E. A. 478 (T); De Souza v Tanga Town Council: [1961] E.A. 377 (C.A.) and Mwesiumo J. in Northern Tanzania Farmers' Coop. Society Ltd. v W.H. Shellukindo: (Merits) [1978] L.R.T. n. 37. However now the H distinction between judicial proceedings and administrative proceedings is gone. The distinction has been "scotched" as a 'heresy' if I may be allowed to use the fine words of Lord Denning in the case of R. v Gaming Board ex-parte Benaim and Khaida: [1970]2 All E.R.528 (C.A.) And in Tanzania the distinction was scotched by the decision of the Tanzania I Court of Appeal in the case of Patman Garments Industries Ltd. v Tanzania
A Manufacturers Ltd: Civil Appeal No. 15 of 1981 (unreported) delivered on 8/3/1982 by Mwakasendo J.A. on behalf of the Court.
It will be seen therefore that our judges have a heavy responsibility in this field to see that the law takes the correct direction that will benefit the individual citizen. That great American judge Benjamin Cardozo in his 'The Nature of the B Judicial Process' has underscored the judge's responsibility when he said:-
That court best serves the law which recognises that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law C represents what should be according to the established and settled judgment of society.
D And for Tanzania the role of the judges is particularly pressing as pointed out by the former Chief Justice of Tanzania P.T. Georges in the foreword to the book "The Doctrine of Precedent" T.P.H. (1971) at p.viii that:
E In a society which is changing as rapidly as the Tanzania society of today, lawyers and judges should keep under constant critical examination their basic approach to the process of decision-making. If they stand still while the rest of the society moves, the unhappy result may well be that they will have failed to incorporate into the new pattern of progress the idea that the rule of law has F a necessary place in any community where the equality of all men and their human dignity are greatly valued. Failure in this important task would be a tragedy for the new society. This work is of the greatest importance in helping those engaged in the moulding of the law in this task of critical self-examination. G
Now it will be recalled that in 1984 by the Fifth Constitutional Amendment Act No. 15 of 1984 the Bill of Rights has H been incorporated in our 1977 constitution. The rest of the society has moved forward. So it will be a tragedy if our courts don't mould the rules on prerogative orders to match the changes in our constitution which lean in favour of the protection of individual citizen against an oppressive government. It is in that light that I proceed to discuss the rules of I procedure on mandamus on how they relate to the facts of this case
A The background facts to this case are that in early 1983 the government decided that all suspected economic saboteurs be arrested and their property seized. They were to be tried before special tribunals. For the purpose of carrying on the duty of implementing the policy decision in question there was enacted the Economic Sabotage (Special B Provisions) Acts Nos. 9 and 10 of 1983 which incidently Prof. Issa G. Shivji has described it as a very 'notorious' piece of legislation (see page 12 of his paper 'Notes on the Status of Legal Rights in Tanzania: A Jurisprudential Treatment' one of papers presented at a Seminar to Commemorate 25 years of the Faculty of Law which was held between 20th to 25th C October, 1986 at University of Dar es Salaam). It was the Regional branch of the government that had to decide who were the suspected economic saboteurs. That means that it was the Regional Commissioner and his supporting staff who made the appropriate decisions and the implementation of the Law. As regards the present applicant it is said he was D arrested on 30/3/1983 and some substantial property of his was seized. He was charged with hoarding property before the special tribunal in Case No.9 of 1983 and he was acquitted. That tribunal ordered that the sum of Shs.1,189,871/20 E realised from the sale of 2014 cases of beer be paid to the present applicant in a month's time from the day of judgment which was on 27/8/1984. The tribunal also ordered that the 79 cartons of Konyagi or its value (at the then current price) be paid to the accused within the same period of one month from the date of judgment which was on 27/8/84. But F todate the applicant has not been paid any of those items as ordered by the special tribunal. Concerning the value of the 79 cartons of Konyagi he said they were worth Shs.568,800/= (the value of Shs.7,200/= per carton) and the same has yet to be paid to him.
G Besides the beer and the Konyagi there were other property seized from the applicant but which was not a subject matter of the charge of hoarding in Case No. 9 of 1983. It was a variety of property that was seized and it included cement, lime, kerosine, a generator, a radio-call, pipes, sponge-mattresses etc. which together with the beer and Konyagi the police in their charge sheet of 20/5/83 estimated the property to be valued at Shs.10,000,000/=. But applicant H submitted at the hearing of this application that the property seized was worth Shs.11,675,680/= excluding the beer and the Konyagi.
I Again the applicant told this court that in February and May, 1984 a number of house-hold goods were taken away from his house
A by the government and he said these were worth Shs.5,000,000/=. He prays this court to order payment of the same to him.
Then again he stated that at the same relevant period some ten vehicles of his were impounded and grounded at Oyster B Bay Police Station Dar es Salaam pursuant to an order issued by Regional Commissioner of Kagera that applicant was an economic saboteur facing criminal charges in Bukoba. When he was acquitted the vehicles were returned to him but a number of spare parts had been stolen from them. He said that the stolen spare parts were worth Shs.14,948,365/=. He prayed this court to order payment to him that sum the equivalent value of the stolen spare parts. C
The applicant also stated that the government officials had seized and used his house for one year from May, 1983 to 4/5/1984. It is said the house was occupied by some policemen. The applicant prays to the court to order payment to him a reasonable compensation for the use of his house by the government agents. D
All in all the applicant asked the return of his seized property or compensation in lieu of the same. He estimated the value of his claim to be Shs.33,123,980/65.
On the other hand the two respondents through their State Attorney Mr. Tendwa made a feeble resistance to the claim. E They did not file any counter-affidavit. However Mr. Tendwa made an oral submission stating that the respondents were ready to pay Shs.1,435,112/70 to applicant which is lying in the suspense account of National Bank of Commerce in Bukoba. He said that, that sum represented the beer sold (being Shs.1,189,870/20 as ordered by the special tribunal) F and some money realised from the sale of cement and kerosine. Then Mr. Tendwa conceded that his clients had seized a lot of property as per the list which is an annexture to the chamber application but they cannot account for the same. G They cannot tell if all the seized property was sold and if it was sold they cannot tell how much was realised and if there is any money they cannot tell where it is lying. If I may be allowed to interpose here, it beats my comprehension if what Mr. Tendwa told this court is true as to how such very high government official had the temerity to inform the court the way H they did notwithstanding the fact that both the Regional Commissioner and Regional Police Commander are new to that station. I cannot imagine any better example of the height of irresponsibility and the utter disregard to the rights of an I individual citizen whom they are supposed to serve. Be that as it may, concerning the house of the applicant, the respondents through their counsel denied that it was converted to government use for a
A year. Concerning the property allegedly seized in February and May, 1984 which the applicant said it was worth sh.5,000,000/= the respondents denied to have had seized it. As regards the stolen spare parts from the applicant's vehicles the respondents through their counsel denied responsibility on the ground that the same were lost through the B negligence of the police of Oyster Bay Police Station of Dar es Salaam and not Kagera Region. All in all the respondents admitted liability only for sh.1,435,112/70 representing the value of beer and some cement and kerosine.
Now let us see if the applicant has succeeded to prove the five elements which ought to be proved if an order of C mandamus is to issue. The first condition to be met is that the applicant must have demanded performance and the respondents must have refused to perform. This condition is a non-issue in this case, as it is conceded by the respondents that the applicant has demanded for his things since late 1984 but up to this day, he has not been given the D same. There are numerous letters to the respondents and other arms of the government whereof the applicant demanded to be given back his property but the prayers landed on deaf ears. Even if the demand for performance is made to the successors in office it is o.k. as pointed out by the East African Court of Appeal in the case of D.C. of Kiambu ex-parte E Ethan Njau [1960] E.A. 109 C.A. which cited the English case of R. v Mayor of Rochester (In the Parish of Strood) 119 E.R. 1490. In here the demand for performance was made to successors in office and that was proper. Therefore the first condition has been met without any controversy. F
The second element to be proved is that the respondents as public officers must have a public duty to perform imposed on them by statute or any other law but it should not be a duty owed solely to the state but should be a duty owed as well to the individual citizen. For example in Kenya in the case of Re Application by Mwau [1985] L.R.C. (Const.)444 G Simpson C.J. held that an order of mandamus could not issue against the Principal Immigration Officer to return a passport to the owner because under the Kenya Immigration Act, Cap 172 the duty to issue and withdraw passports is given to the Minister of Home Affairs and not the Principal Immigration Officer who merely acts on the instructions of the H Minister. Mandamus does not lie to a public officer who is acting purely as agent of the state for a duty owed to the state and not to the individual citizen. This is because the granting of mandamus would be tantamount to giving relief I against the government which could not have been obtained in proceedings against the government
A under the Government Proceedings Act No. 16 of 1967. In this respect Wade and Bradley in their book Constitutional Law 7th Ed. (1965) Longmans at p.664 state:-
The order does not lie against the Crown. If a government department is acting as agent of the Crown and is responsible only to B the Crown having no duty to the subject in the matter, it is not amendable to the orders of the court in the exercise of its prerogative jurisdiction in granting or refusing it.
C And the following passage from Judicial Review of Administrative Action by S.A. de Smith (2nd Ed. p. 462 was cited with approval by Goudie J. of the High Court of Uganda in the case of Shah v A.G. of Uganda (No.3): [1970] E.A. 543, he said:
D In mandamus cases it is recognised that when a statutory duty is cast upon a Crown servant in his official capacity and the duty is one owed not to the Crown but to the public any person having a sufficient legal interest in the performance of the duty may apply to the Courts for an order of mandamus to enforce it. Where however a duty has been directly imposed by statute for the benefit of E the subject upon a Crown servant as persona designata and the duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the Courts have shown readiness to grant applications F for mandamus by persons who have a direct and substantial interest in securing the performance of this duty. It would be going too far to say that whenever a statutory duty is directly cast upon a Crown servant that duty is potentially enforceable by mandamus G on the application of a member of the public for the context may indicate that the servant is to act purely as an adviser to or agent of a Crown, but the situations in which mandamus will not lie for this reason alone are, it is thought, comparatively few.
H Like Gourdie J. I adopt the reasoning in the above extract.
And it has also been pointed out that mandamus does not lie against a public officer as a matter of course. The courts are reluctant to direct an order of mandamus against executive officers of a government unless some specific act or thing which the Ilaw requires
A to be done has been omitted. In this respect Mr. Prem in his work Law of Writs in India, England and America 2nd Ed. at p. 385 tells us that:
Courts should proceed with extreme caution for the granting of the writ which would result in interference by the judicial B department with the management of the executive department of the government. The courts will not intervene to compel action by C an executive officer unless his duty to act is clearly established and plainly defined and the obligation to act is premptory.
That is the statement on the law as regards the second element for the granting of an order of mandamus.
In the case at hand, concerning the 2nd respondent (the R.P.C.) there can be no doubt that there is a clearly defined D public duty cast upon him under the Police Force Ordinance Cap 322 first to the state and also to the individual citizens. He is empowered to arrest offenders and send them to court. After the finalisation of the case he is obliged to return the E seized goods to those who have been cleared by the courts. The police officer has an obligation and not a discretion to return the seized goods to the owner once he has been acquitted in court and no other charges are envisaged against him.
As regards the 1st respondent (the R.C.) it could be argued that ordinarily no public duty is cast upon him by law of F arresting offenders and seizing their goods and then returning the goods to the owners who have been cleared by the courts. However if we consider the implementation of the relevant legislation that is the Economic Sabotage (Special Provisions) Acts no. 9 and 10 of 1983 it will be found that its implementation was equally cast upon the regional branch G of the government. The regional authorities under the R.C. would sit down and decide who was the suspected economic saboteur and then instruct the police officers to arrest the suspect and seize his goods. The suspect would then be sent for trial at the special tribunal. It will be seen therefore that under the relevant legislation the R.C. had a heavy H hand in the arrest and seizure of the goods of the suspected saboteurs and so he is equally obliged to have a heavy hand in the return of the goods to the suspects who have been cleared by the courts. If the R.C. found that the acquittal, was I against the weight of evidence, he could advise the government to nationalise the seized goods on payment of compensation. In
A fact the Kagera R.C. once used that weapon in case of vehicles of a certain suspect who was acquitted by the court, and he accordingly advised the government to nationalise the vehicles. The government conceded and by virtue of the Kagera Transport Assets (Acquisition and Regrant) Act No.1 of 1984 the vehicles in question were nationalised but the B owners were to be paid full, fair and adequate compensation. That shows how the R.C. had a hand in the matters and therefore he is equally duty bound to see to it that the innocent victims get their seized goods as soon as possible.
If there is any doubt as to the obligation of the law enforcement agencies and other members of the executive branch of C the Government in returning the seized goods to the suspects who have been cleared by the courts I wish to point to Article 17(2) of the Universal Declaration of Human Rights of 1948 which provides that no one shall be arbitrarily deprived of his property. By Article 7(1) of our Constitution as amended by Act No. 15 of 1984 the government and all D it is agencies having executive, legislative or judicial functions are obliged to take into account and implement all the provisions of Part II of the 1st Chapter of the Constitution which includes the Universal Declaration of Human Rihts of 1948 as provided by Article 9(f) of our Constitution. The Tanzania C. J. F.L. Nyalali in his address on the 'Bill of E Rights' to Law Society of the University of Dar es Salaam published in the Daily News of 7th September, 1985 said inter alia on effect of Article 7(1) of the Constitution:
F It can thus be said that although the failure by any person or state organ to observe any of the provisions of the Universal Declaration of Human Rights will not attract legal censure or invalidation by courts, I have no doubt that the courts are required to G be guided by it in applying and interpreting the enforceable provisions of the Constitution and all other laws.
It goes without saying that the R.C. and R.P.C. were duty bound in performing their duties to be guided by the provisions H of the Universal Declaration on Human Rights which includes the duty not to arbitrarily deprive someone of his property. And I may also point out that in our Bill of Rights in our Constitution under Article 24 the right to property is guaranteed and can only be taken away by law providing adequate compensation. Although justiciability of the Bill of I Rights comes into force on 16/3/1988, yet the implementation of the provisions of the Bill of Rights by every
A organ of the government started on 1/3/1985 by virtue of Act No. 16 of 1984. And so the R.C. and the R.P.C. had and still have an obligation in law to return the seized goods or its value to the owners.
It cannot be said that the duties which were cast upon the R.C. and R.P.C. by the law on economic saboteurs were owed solely to the state. They had a duty as well to perform which they owed to the affected individual citizens. The B situation here is analogous to the facts in the case of Shah v A.G. Uganda (Supra) where it was held that the Treasury Officer in his duties of making payments out of the State Coffer was not acting simply in his capacity as a servant of the state for a duty owed solely to the state but was also acting on the fulfilment of the duties cast upon him to the affected C citizen who had a right to payment from the government funds by a decree of a court as a decree holder. And so an order of mandamus was issued. And a similar case from England to the same effect is the case of R. v Commissioners for Special Purposes of the Income Tax (1888) 21 Q.B.D. 313 (per Lord Esher at p. 317) which held that mandamus D will lie to compel a Treasury Officer to make payments to a citizen who had sufficient interest - in here it was a refund to a taxpayer who had overpaid tax. Now in the same breath, in the case at hand I am satisfied that the two respondents E have a legal duty to the aggrieved citizens who have been cleared by the courts to have the seized property returned to them.
Now the third condition that has to be fulfilled in order for mandamus to issue is that the public duty imposed on the public officer should be of an imperative nature and not a discretionary one. And the learned author Dr. Peter A. F Oluyede in his book of Administrative Law in East Africa (1973) E.A. Literature Bureau at p. 192 quotes the decision of the former Chief Justice of Tanzania Mr. Justice P.T. Georges in the case of In the Matter of an Application by G Mohamed Aslam Khan: Misc. Civil Cause No. 22 of 1966 (unreported) as authority for the preposition that there can be no order of mandamus for a discretionary duty. In that case Georges C.J. refused to issue an order of mandamus to compel police officers to prosecute trespassers on somebody's land on the ground that the police were exercising a Hdiscretion. It was said the police had a discretion of prosecuting an offender or not prosecuting him. However on my part I do not agree with Dr. Peter A. Oluyede that the case turned out on the matter of discretion. All it decided was that a charge of criminal trespass cannot arise until the ownership of the land is clearly established in a civil court. A bonafide I belief that the accused is asserting a claim of right to
A property that belongs to him (though mistaken) is a complete defence to the charge of criminal trespass - see Saidi J. in Saidi Juma v R. [1968] H.C.D. n.158 and Mapigano J. in the case of R. v Mohamed s/o Salehe: [1975] L.R.T. n.32. Therefore all what Georges C.J. decided in that case was that an order of mandamus could not issue because the B charge of criminal trespass could not mature until first the question of ownership of land was established in a civil case.
On the question as to whether the police have a discretion or not to prosecute offenders I would prefer to follow the C decision of the Court of Appeal of England in the case of R. v The Commissioner of Metropolitan Police ex parte Blackburn: [1968] 2 Q.B.118(C.A.). Lord Denning held in that case that in the carrying out of the duty of enforcing the law the police have a discretion whether to prosecute or not with which the courts would not interfere; but that if the D police are guilty or persistent and serious failure to ensure that the law is enforced in relation to any significant part of the law an order of mandamuswill issue. This is because failure to act would be an abuse of the discretion cast upon them. So the position in law today is that the courts will intervene by an order of mandamus where there is an abuse of a E discretion; but the court will not dictate the decision but will compel the officer to hear and determine the matter in accordance with the law. And in this regard I find that Sir Kenneth O'Connor C.J. correctly stated the law in this field in F the Kenyan case of ex parte J.C. Patel (1954) 27 K.L.R. 140. In that case the Principal Immigration Officer refused an entry permit to an applicant because he was satisfied that the said applicant was not a 'person intending to carry on a trade, business or profession other than a prescribed profession, on his own account in the Colony'. In an application for an order of mandamus it was argued on behalf of the Principal Immigration Officer that mandamus will not issue to G enforce the performance of a statutory duty, the performance or non-performance of which is a matter of discretion. However Sir Kenneth O'Connor C.J. on behalf of the court stated that while it was true that the court cannot dictate the H decision in a matter in which a discretion to decide is conferred by a statute, yet in such cases mandamus will go to the body to compel it to hear and determine according to law. Therefore the existence of a discretion is no longer a bar to issuing an order of mandamus. In the case at hand there is no contention that the two respondents were exercising a discretion which they have under the law. On my part I find that it is crystal clear that the two respondents have a public Iduty of an
A imperative nature to return the seized goods to the owners. The two respondents have no power to nationalize the goods. If it is argued that they had a discretion to decide as to what next step to take, I would answer that, that is an abuse of a discretion, because they have been dilly-dallying for the past two years and half without any action; and so they cannot any longer be allowed to continue to abuse their discretion if any. B
The fourth condition which must be met if an order of mandamus is to issue is that the applicant must have a locus standi: that is he must have sufficient interest in the matter he is applying for. In the case at hand there is no controversy that the applicant has sufficient interest in the matter because it was his property that had been seized by the two C respondents. He is therefore not a mere crank or busybody. However at this juncture it will not be out of place to make certain observations as regards the trend of the law in this field. There are two Schools of though on the matter. One D school of thought takes the narrow view and it is represented by the decision of the House of Lords in the case of Gouriet v Union of Post Office Workers and Others: [1978] A.C. 435. This school holds that only the plaintiff with an interest in the subject matter can sue but no other citizen as a member of the public can do that. In short the plaintiff E must have a private right or must suffer a damage peculiar to him. It is argued that it should be so to avoid liability of the respondents to an indeterminate number of people. The other school of thought to which I subscribe takes a liberal or F extended doctrine of locus standi; and the same was taken by Lord Denning in the Court of Appeal in England in the case of Gouriet v The Union of Post Office Workers (supra) and more recently by the Court of Appeal in New Zealand in the case of Finnigan v New Zealand Rugby Football Union (Incorporated) [1986] L.R.C. (Const.) 877 G by Cooke J. This school stands for the proposition that a member of the public can impugn an important decision affecting the nation as a whole i.e. of national and public interest, though it does not personally affect him. However it is said the matter must have a national or international implications. This school of thought can be supported on policy and H legal grounds. On policy grounds it is a useful doctrine because public interest litigation is for the benefit of the whole community at large. On legal grounds it cannot be accepted that respondents may be liable to an indeterminate number of people, because the courts are there to exercise control of the unruly horse. As Lord Denning pointed out in the case I of Enderby Town Football Club v The F.A. [1971] 1 All E.R.215 that:
A With a good man in the saddle, the unruly horse can be kept in con