(Jaba Shadrack, Assistant Lecturer, University of Dar es
Salaam – School of Law)
Mandamus
(Mandatory order/a writ
of mandate or mandamus)
1.
Introduction:
Definition
Etymology
(Origin)
·
A Latin
word which means “we command" (origin
16th C)
Black
Law Dictionary, 9th Ed.
·
A writ issued by a court to compel performance
of a particular act by a lower court or a governmental officer or body, usually,
to correct a prior action or failure to act.
Halsbury’s
Laws of England (3rd Ed., Vol. 11, p. 54)
·
Is a command issued by the High Court
directed to any person, corporation or inferior tribunal, requiring him or them
to act in certain way which appertains to his nature of a public duty. [Read: Hans Wolfgang Golcher
v. General Manager of Morogoro Canvas Mill Limited 1987 TLR 78 (HC)].
Lord
Goddard CJ., in R. v. Metropolitan Police Commissioner ex parte Parker (1953) 2 ALL ER 717, p. 719
says;
…..mandamus
will lie to any person who is under a duty imposed by statute or by the common
law to do a particular act. If that person refrains from doing the act or
refrains from wrong motives from exercising a power which it is his duty to
exercise, this court will by order of mandamus direct him to do what he should
do.
Dr.
Dogo Janja was
employed by Madesa University in
2000 (a public University in Bongo land), as a lecturer. On 15th
June 2012, Mr. Maprosoo (the Vice
chancellor) wrote a letter to Dr. Dogo Janja
informing him that his contract of employment has been terminated on 21st
May, 2012 and would not be renewed. Thus, Dr.
Dogo Janja was dismissed from his duties "with immediate
effect". There was another letter
which instructed Dr. Dogo Janja to
vacate the house he was occupying, not later than 30th June, 2012.
Under the above hypothetical case, Dr. Dogo Janja can apply for an orders
of certiorari to quash the decision of the Vice chancellor, and mandamus to
compel the Vice Chancellor to hear the respondent in accordance with rules of
natural justice, and for an injunction to restrain the Vice Chancellor from
harassing him.
Mandamus is a
judicial writ issued as a command to an inferior/subordinate court/tribunal or
ordering a person to perform a public or statutory duty.An
order of mandamus will never be issued to compel performance of a private duty,
e.g. a duty arising out a contract between private individuals.
2.
Types
of a writ of Mandamus
The order of mandamus can
be categorized into three (3) main groups, i.e;
A writ issued upon the first application for
relief, commanding the defendant either to perform the act demanded or to
appear before the court at a specified time to show cause for not performing
it.
(b)
Peremptory
mandamus (peremptory writ of mandamus/mandate)
A final order of a court
to any governmental body, government official or a lower court to perform an
act the court finds is an official duty required by law. It is an absolute and
unqualified command to the defendant to do the act in question. It is issued
when the defendant defaults on, or fails to show sufficient cause in answer to,
an alternative mandamus.
A writ of Mandamus issued
to a lower authority by the higher authority in general public interest asking
the officer or the authority to perform its task expeditiously for an
unstipulated period of time for preventing miscarriage of justice.
3.
Source
of Court’s Power to issue the writ of mandamus in Tanzania
The Court of law in Tanzania
may invoke a writ of mandamus by relying on any of the following provision of
the law;
(a) The Constitution of the United
Republic of Tanzania, 1977
By implication, the
Constitution under Article 30(3)
provides generally for judicial review (the remedy of mandamus included) in the
following terms:
Where
a person alleges that any provision of this part of this Chapter or any law
involving a basic right or duty has been, is being or is likely to be contravened
in relation to him in any part of the United Republic, he may, without
prejudice to any other action or remedy lawfully available to him in respect of
the same matter, institute proceedings for relief in the High Court.
(b)
The
Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap 310 (RE
2002),
Among other prerogative remedies, Section 17 of the Act confers jurisdiction to the High Court to
issue the writ of mandamus. The relevant provision read as:
(1)
The High Court shall not, whether in the exercise of its civil or criminal
jurisdiction, issue any of the prerogative writs of mandamus, prohibition or
certiorari.
(2)
In any case where the High Court would but for subsection (1) have had
jurisdiction to order the issue of a writ of mandamus requiring any act to be
done or a writ of prohibition prohibiting any proceedings or matter, or a writ
of certiorari removing any proceedings or matter into the High Court for any
purpose, the Court may make an order requiring the act to be done or prohibiting
or removing the proceedings or matter, as the case may be.
(4)
In any written law, references to any writ of mandamus, prohibition or
certiorari shall be construed as references to the corresponding order and
references to the issue or award of any such writ shall be construed as
references to the making of the corresponding order.
(5)
Any person aggrieved by an order made under this section may appeal therefrom
to the Court of Appeal.
Under the common law the
High Court has inherent powers (by virtue of its existence) to issue
prerogative remedies, which includes the writ of mandamus. This position is
cemented by Section 2(2) of the Judicature and Application of Laws Act (JALA) – RE: 2002. [Read: Alfred Lakaru v. Town
Director (Arusha) [1980] TLR 326 (HC, per Maganga J); and Tanzania Dairies Ltd V Chairman, Arusha
Conciliation Board and Isaack Kirangi [1994] TLR 33 (HC).
4.
Circumstances
under which the writ of mandamus may be issued
The Halsbury’s
Laws of England (3rd, Vol. 2) list seven (7) condition precedent
under which the writ of mandamus can be invoked by the court. These are;
(a) The
legal right must exist
(b) Duties
must be public
(c) Right
must be in the application
(d) Application
must be made in good faith and without delay
(e) Demand
for performance must precede application
(f) There
must exist possibility of enforcement; and
(g) No
other legal remedy is available.
In the same vein, Mwalusanya
J., as he then was, in John
Byombalirwa’s case (infra) made
it clear that;
For
all that we know mandamus is the procedure whereby a citizen 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 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
may be said that there are few conditions to be proved in order for an order of
mandamus to be issued.
These are:-
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 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.
5. There should be no other appropriate remedy
available to the applicant.
Summary:
Grounds for Granting the Writ of Mandamus
It
may be issued by the Court (esp. High Court) to any inferior tribunal,
corporation, board or person, to compel the performance of an act which the law
especially enjoins as a duty resulting from an office, trust or station, or to
compel the admission of a party to the use and enjoyment of a right or office
to which the party is entitled, and from which the party is unlawfully
precluded by such inferior tribunal, corporation, board or person.
5. Enforcement
of the writ of Mandamus (Penalty).
When an order of mandamus
has been issued and directed to any inferior tribunal, corporation, board or
person upon whom the writ has been personally served and such tribunal,
corporation, board, or person has without just excuse, refused or neglected to
obey the same, the court may, upon motion, impose a fine to that person or
authority. In case of persistence in a refusal or disobedience, the court may
order the party to be imprisoned until the writ is obeyed, or charge and
convict him or her for the contempt of court, and may make any orders necessary
and proper for the complete enforcement of the writ.
6.
Examples
of Cases from Tanzania on the Writ of Mandamus
JOHN
MWOMBEKI BYOMBALIRWA v. THE REGIONAL COMMISSIONER AND REGIONAL POLICE
COMMANDER, BUKOBA 1986 TLR 73 (HC)
The applicant was one of
suspected economic saboteurs. He was
arrested in March 1983 and a substantial part of his property valued at
Shs.11,675,680/= was seized (excluding beer and Konyagi). He was charged with hoarding property but the
special tribunal acquitted him and ordered that the seized property be restored
to the applicant. The government officials
involved did not comply with the order hence the application for an order of
mandamus to issue. In this case, all the required grounds for issuance of an
order of mandamus were met by the applicant, thus Mwalusanya J., held that the applicant deserved an immediate order
for redress because the injustice already done to him was substantial and
unwarranted.
LELLO
DIDA AND 171 OTHERS v. ARU, THE UDSM & THE AG, HC AT DAR ES SALAAM, MISC
CIVIL CAUSE NO. 69 OF 2008 (UNREPORTED)
All applicants in this case were former students of
ARU, a former Constituent College of UDSM (i.e.
UCLAS).[16]
The applicants were transferred from UDSM to ARU without their consent, and a
short notice to that effect was placed on the notice board. Thus, upon
graduation, the applicants were awarded their Degrees/certificates or
transcripts in the name of ARU. This was against the terms contained in the
UDSM prospectus of that academic year. When the applicants approached the two Universities
for negotiation, they were completely ignored. The applicants being aggrieved
by the decision of the two Universities, applied for the orders of Certiorari
and Mandamus. The Court ruled in the applicants’ favour by granting the
prerogative orders of Certiorari and Mandamus.
Twaib,
J.
cited John Mwombeki Byombalirwa v. The
Regional Commissioner and the Regional Police Commander, Bukoba (supra) and held that;
The order [of Mandamus] can only lie
where, other element existing, a public body has failed to discharge a public
duty that is clearly established by law. In present case, the University of Dar
es Salaam has failed to discharge its duty to grant awards to its Students and
instead has left that duty to body that had no power to do so. Hence, the order
of Mandamus issued hereby is confined to compelling the University of Dar es
Salaam to fulfil its legal duty to the applicant as students enrolled by it as if
UCLAS still existing.”
FESTO
BAREGE AND 794 OTHERS v. DAR ES SALAAM CITY COUNCIL MISC. CIVIL CAUSE NO. 90 OF
1991, HIGH COURT OF TANZANIA AT DAR ES SALAAM (UNREPORTED)
The applicants were
residents of a suburb of Dar es Salaam where the City Council dumped waste and
refuse which attracted swarms of flies. When the rubbish was set on fire, a lot
of smoke and foul smell was produced and inconvenienced the neighbourhood. The
applicants applied for orders of certiorari to quash the decision of the City
Council of dumping waste; prohibition, to stop the City Council from continuing
that nuisance; and mandamus, to compel the respondent to discharge its
functions properly by establishing and using an appropriate site. The
application was granted by the High Court. A number of findings were made: One,
the City Council’s action was ultra vires the Local Government (Urban
Authorities) Act, 1982. Two, the action was contrary to the City’s Master plan.
Three, it was not a statutory duty of the respondent to create nuisance but to
stop it and avoid to endanger the residents’ health. Four, Article 14 of the
Constitution, which guarantees the right to life and its protection by the
society, was breached.
EDWARD
MLAKI LISTON MATEMBA v. THE REGION POLICE COMMANDER MISC. CIVIL APPLICATION NO.
38 OF 1979 (UNREPORTED)
There was an allegation
that the applicant’s two vehicles were involved in transporting smuggled goods.
The Regional Police Commander of Kilimanjaro Region, pursuant to the
instructions of the Secretary to the Regional Security Committee, arrested and
detained the vehicles. The applicant was later summoned to appear before the
Region Security Committee where he denied the allegations. He was told that he
would be informed of the outcome but that was not done. The vehicles remained
in police custody though no criminal charges were preferred against him. The
High Court held that in the absence of any pending criminal matter the
respondents had no power to detain the applicant’s vehicles, and an order of
mandamus was issued to release the vehicles.
Generally, an order of
mandamus (like any other discretionary writ) may be refused where there is an
alternative remedy or the applicant has not exhausted all other available
remedies (e.g. appeal, or filing a suit and etc). However, such other remedies
(alternatives) available must be speedy, effective, and adequate). It should
also be borne in mind that in all applications for prerogative orders, such as
certiorari and mandamus leave must be sought and obtained before the
application for any prerogative order is heard. Again, the writ of
mandamus cannot be issued by High Court when exercising its civil or criminal
jurisdiction.
