TUMAINI UNIVERSITY

IRINGA UNIVERSITY COLLEGE

FACULTY OF LAW

COURSE NAME: ADMINISTRATIVE LAW

COURSE CODE: LAW 212
LECTURER: MASAO, E. (Mr.)
NATURE OF WORK: GROUP ASSIGNMENT (GROUP NO. 4)
DUE DATE: June 4th , 2009
PARTICIPANT
1. CHUSI, TUMAINI
2. MDOLO, MARTHA C.
3. MAKINYA, FLORIAN
4. MAJURA, JOVINE
5. DICKSON, CATHERINE NYINGI
6. MWEMBA, HASSAN
7. KAHANDO, CHALI
8. CHRISTEL KIWEHA
9. MCHAMI, GLADNESS R.

MEMBER
10. MAIMU, LAURA

QUESTION;
4.” The two-stage procedures for judicial review for application of prerogative orders
are a mere consensus of law. The format for the application of prerogative orders
should not be different from those under the Habeas corpus Rules”. Discuss this
preposition.
QUESTION;
4.” The two-stage procedures for judicial review for application of prerogative orders
are a mere consensus of law. The format for the application of prerogative orders
should not be different from those under the Habeas corpus Rules”. Discuss this
preposition.

INTRODUCTION;
Judicial review is the uniform system for the exercise by the High court of its
superiority jurisdiction over inferior courts, tribunals and public bodies and person 1.
Upon application to the High Court for judicial review the remedies available are (a)
orders of certiorari, prohibition and mandamus (b) declaration, damage or injunction.

It is sometimes called supervisory jurisdiction. It is the High court power to police the
legality of the decisions made by public bodies. On the other hand, judicial review
operates within the contest of parliamentary accountability of the executive and
various mechanisms.

Prerogative writs or orders are orders which are issued from the superior court that
is the High court for the purpose of preventing inferior courts, or officials, from
exceeding the limits of their legitimate sphere of action, or of compelling them to
exercise their function in accordance with the law to assure the full measure of justice
of the subjects2.

In modern law of judicial review, the prerogative orders include Certiorari summons
up the record of an inferior body to be examined by the court and the decision to be
quashed if it is invalid, Prohibition prevents a body from exceeding it’s jurisdiction
and Mandamus orders a body to perform its duty.

Habeas Corpus, a prerogative writ used to challenge the detention of a person either
in official custody or in private hands 3. If the court is satisfied that the detention is
prima facie unlawful, the custodian is ordered to appear to justify it and if he cannot

1
Osborn’s Concise Law Dictionary
2
Osborn’s Concise Law Dictionary
3
Osborn’s Concise Law Dictionary

2
do so the person is released. Habeas corpus has been of practical title importance now
days because of its limited scope and as well it can’t be used to challenge the facts.

PROCEDURES FOR THE APPLICATION OF PREROGATIVE ORDERS

In Tanzania, the powers of the High Court for judicial review are found in The Law
Reform (Fatal Accidents and Miscellaneous Provision) Act, Cap 360 that empowers
the Chief Justice to make procedures of how the judicial review should be entertained
as per S19. The Judicature and Application of Laws Act (JALA), Cap 453 S2 (2,3) are
relevant, The Civil Procedure Code S95 and The Constitution of the United Republic
of Tanzania, Article 108 which establish the High Court.

Judicial review procedure must be used when applying for the order of Certiorari,
Prohibition and Mandamus. These procedures are not provided in any statute as far as
Tanzania is concerned. They are provided in the Crown Office Rule of 1906 on which
Tanzania has adopted these procedures as it was stated in the case of Dar es salaam
Motor Transport Co. Ltd v. Transport Licensing Authority in Tanganyika &
another4 were it was stated, “that the procedure and practice obtained in England on
22nd July 1920, is what is contained in Crown Office Rule of 1906”. The two
procedures are;

I. Application for a leave by the applicant, ex-parte to a single judge in chamber

for a substantive order he wishes to get.
This is for the purpose of removing applications, which are frivolous and leave
the genuine cause of action. At this stage, the applicant must establish a prima
facie case. If the court is satisfied, the leave will be granted and directions to
serve summons upon the respondents calling him defend himself why the
remedy sought should not be granted.

II. Application for the order by the applicant through a chamber summons
supported by an affidavit as a condition required by the Civil Procedure Code,
that is every chamber summons must be supported by an affidavit.
The respondent may oppose the application by filling a counter affidavit in
advance of a date of submitting the arguments in support of their respective
position.

4
(1959) E.A

3
In both procedures, the Attorney General must be saved with the application
document copy, with the rationale to let the government know that the orders are to be
issued and know the impact of those order to the government. S18 and S17 (a) of the
Law Reform (Fatal Accidents and Miscellaneous Provision) Act provides that, it is
mandatory for the Attorney General to be supplied with the copy for the application of
the document.

PROCEDURES FOR APPLICATION OF HABEAS CORPUS RULES

Habeas Corpus is found under S390 of Criminal Procedure Act, this section
empowered the high court among others to order and direct that, A person or property
illegally or detained in custody be set at liberty. In Shaban Khamis Mloo and 4
others v. The Superitendent of Zanzibar Prison and another 5 The applicants were
detained without warrant or being shown any detention order and or being informed
of the reason for their detention. The applicant were asking the court to summon the
commissioner for Prison and Attorney General and for the two to show cause why a
writ of Habeas Corpus should not be issue directing them to produce the bodies of the
applicant before the court and release them forthwith.

Habeas Corpus Rules of 1930 GN no. 150 of 1930 provides for the procedure that
gives direction in the nature of Habeas Corpus; briefly the rules provide that for
proceeding in the nature of Habeas Corpus to exist as follows.
(a) There must be an application to a judge in chamber (rule 2)
(b) The application (which should be by way of chamber summons should be
made ex-parte but it must be supported by an affidavit in triplicate (rule 2))
(c) A summon should be issued to the person in whose custody the detainee is to
appear and show cause why the detainee should not be set free (rule 3 and 4)
(d) The person in whose custody, the detainee is placed is to file his reply by way
of an affidavit in duplicate within the shortest possible time (rule 5 and 6)
(e) The detainee may be admitted to bail pending hearing (rule 7)
(f) The order of speech is as follows: -
i. The detainee or his representative begins to argue for his (he
detainee) release

5
(1991) HC Zanzibar (unreported)

4
 ii. The detained then replies to the detainee’s prayer
iii. The detainees or his representative may reply by the detained if he
so wishes
iv. Then comes the order of the court, which could be granted, or
refusal to the Habeas Corpus application.

The format for the application of prerogative orders and Habeas Corpus Rules do
resemble on some procedures though they are two different orders. The application on
both orders may be made by a chamber summons to a single judge ex-parte supported
by an affidavit. In Attorney General v. Lesion Ndeinai and Another it was stated, “
an order which is not affixed with the Public seal as required by the provision of S2 of
the Preventive Detention Act is a complete nullity and therefore illegal.”

THE FORMAT OF APPLICATON FOR PREROGATIVE ORDERS SHOULD BE

DIFFERENT FROM THOSE UNDER HABEAS CORPUS RULE DUE TO THE
FOLLOWING REASONS;
Habeas corpus is more constitutional while prerogative orders is more
administrative. Habeas corpus is not part of judicial review procedure although the
grounds for issuing it are probably the same as those of judicial review. It only
requires anyone detaining a person to bring the prisoner immediately before a judge to
justify the detention. But as well, judicial review can provide a speedway of
challenging unlawful detention. According to Dicey6, Habeas Corpus is “ worth a
hundred constitutional articles guaranteeing civil liability”. In Chumchua s/o Marwa
v. Officer of Musoma Prison and Another 7 it was stated that, “ The deportation
ordinance, 1921 is unconstitutional for it offended the bill of rights contained in The
Constitution of the United Republic of Tanzania, 1977”. Also in the case of Dishon
Susa Yamo and Another Vs Republic 8. Facts were appellant were arrested and
detained in 1984 under deportation order issued in 1983. At the end of 1984 they were
released. In March 1985, they were re-arrested again when their arrest and detention
were challenged in court, the authority produce a Photostat copy of 1983 deportation
order. The issue brought before the court was whether the re-arrest and detention of
the two persons in 1985 under the 1983 deportation order had been rescinded and thus
6
1959, Introduction to the Study of the Law of Constitution, 10th Edi page 199
7
(1988) H.C of Mwanza at Tanzania criminal case no 2 (unreported)
8
(1985) High Court of Mwanza at Tanzania criminal case no 7 (unreported)

5
the order dies and the subsequent arrest and dentations of the two person in 1985
under the rescinded deportation order was illegal.
On the other hand, Judicial review which provides for the procedures for application
of prerogative orders, enables the High Court to police the power and duties of
inferior bodies i.e. lower courts and government officials. It challenge the decisions
made by the public authorities vested with public duties. In R v. Chief Constable of
North Wales Police Ex-parte Evans9 it was stated that, “the remedy of judicial
review is concerned not with decision of which review is sought but with the decision
making process”

Habeas Corpus Rule is an order to deliver a body dead or alive and to give reasons
for detention, while the Prerogative orders are remedies of last resort issued to a
person who has been aggrieved by the decisions of the public body discharging public
duty. Habeas Corpus Rule, questions the validity of the detention to see if the detainee
has a case to answer or not. In Attorney General v. Lesinoi Ndeinai and Another10 it
was stated that, “the detention which is unlawful entitles the detainee to sue for
damages for unlawful confinement for a period he was detained unlawful”. On the
other side, Prerogative Orders are remedies of last resort were all other remedies are
not available to the plaintiff as it was stated in Morris Onyango v. Senior Investing
Officer11 that “ the order is not one of the right…. it will be issued where there is no
specific legal claim… ”.

Habeas Corpus is not a means of an appeal but a review, while the Prerogative
orders can be used as means of appeal. Habeas Corpus is the review of the detention
order to see if the detention is lawful as stated in Attorney General v. Lesinoi Ndeinai
and Another while the Prerogative Orders it is a means of an appeal to challenge the
decision of such public authority. In R v. Paddington Valuation Officer12 the decision
made by the valuation officer was challenged, then it was stated that, “ the officer had
a duty to act judicially in determine the question affecting the rights of subjects”

The Attorney General in Prerogative Orders must be supplied with copy of

application and not in Habeas Corpus. In Prerogative Orders the Attorney General is

9
[1982] H.L
10
(1980) TRL 214
11
(1980) TLR 180
12
(1966) 1 QB 380

6
part of the defendants and must be filed with the copy of the application as per S18 of
The Law Reform (Fatal Accident and Miscellaneous Provision) Act. The rationale for
this is that the Attorney General stands for the Government and the Prerogative
Orders concerns with public authorities, which are the government. In Habeas Corpus,
the Attorney General is not part of the case because most of the Habeas Corpus
involves civil and criminal matters, which do not directly involve the government. An
example for most applications for Prerogative Orders appears as “Omega v. Ministry
of Labour & A.G” meaning that the Attorney General is part of the defendants and
part of the case and as well in this case it was stated that it is mandatory for the
Attorney General to be supplied with the copy.

Habeas Corpus Rule is mainly for the detained and it’s a matter of right while
prerogative orders deals with free persons who has been affected by the decisions of
the public authority and it’s a discretionary matter. Habeas Corpus deals with people
who have been detained and have the right to know the reason for detention as stated
in Attorney General v. Lesinoi Ndeinai and Another that a person detained as per
S7(1) of Preventive Detention Act, has a right to be shown the detention order at the
time of arrest, With prerogative orders the court can refuse to grant a remedy in its
discretion even when the ground to issue are reached as, they are discretionary matters
example when there is alternative remedy as it was in Morris Onyango v. Senior
Investing Officer13 that “ the order is not one of the right…. it will be issued where
there is no specific legal claim… ”.

A writ of Habeas Corpus one need not to seek for leave as that of other prerogative
remedies in which it is mandatory, the leave is like permission, while for the Habeas
Corpus no need of, from any, once one be unlawful detained anyone can file a writ to
the High Court.

The Criminal Procedure Act regulates Habeas Corpus while the Prerogative Orders
emanated from the reception clause. Section 39014 provides for the powers to issue
directions of the nature of Habeas Corpus and section 391 gives the High Court
powers to issue writ. Prerogative Orders are orders received from England through a
reception clause of 1920 where, as they were orders issue by the King or Queen.
13
(1980) TLR 180
14
Criminal Procedure Act Cap 20 R E 2002

7
Section 2(e) of the Judicature and Application of Laws Act, Section 95 of the Civil
Procedure Code and Section 2 (2) The Law Reforms (Fatal Accidents and
Miscellaneous Provisions) Act are the laws empowers the High Court to entertain
judicial review. Thus since the two are not regulated by the same laws, their format
for the application should as well differ.

Conclusively, the procedures for the application of Prerogative Orders should be

quietly different from those of the Habeas Corpus. This is because the judicial review
is for the purpose of reviewing the decisions of the public body which have affected a
person and have shorter time limits for their application after the ground to make
claim arose, on the other hand Habeas Corpus is an order to deliver a body dead or
alive and give reasons for detention, to question the validity of the detention and there
fore it requires immediate response.

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 REFERENCE;

 The Constitution of the United Republic of Tanzania, 1977

 Criminal Procedure Act, Cap 20 R.E 2002
 The Law Reform (Fatal Accidents and Miscellaneous Provision)
Act, Cap 360
 The Judicature of Application of Laws Act (JALA), Cap 453
 The Civil Procedure Code, Cap
 Preventive Detention Act, 1985 Cap 361 R.E 2002
 Alder J, Constitutional and Administrative Law, 5th Edit, (2005),
Palgrave Macmillan, Great Britain.
 Oluyede P.A, Administrative Law in East Africa, (1981), Kenya
Literature Bureau, Nairobi.
 Rutherford L. & Bone S, Osborn’s Concise Law Dictionary, 8th
Ed, (2003), Sweet and Maxwell, United Kingdom.
 Maina C.P, Human Rights in Tanzania.
 Lecture notes.