C Samatta, JK:
In this application, an issue of novelty and great importance arises, namely whether this court has the power to grant an injuction against the Government, a government minister or official. The issue has arisen in this way. The applicant is engaged in a legal battle against a deportation order made against him by the D second respondent, who is Minister for Home Affairs, under the Immigration Act. On 2 February 1995, he filed before this Court an application against the Director of Immigration Services (the first respondent), the second respondent and the E Attorney General, who was made a party to the proceedings in compliance with s 17 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance Act, 1968, as amended by the Written Laws (Miscellaneous Amendments) (No 3) Act, 1991, for two reliefs, namely; (1) leave to apply for order of certiorari, mandamus and prohibition, and (2) an injunction (in the Chamber summons the F word used is prohibition) restraining the first two respondents, pending the disposal of the prior application from detaining or deporting him for reasons which need not be given here. The application for injunctive relief was heard a day before the application for leave was heard. Mallaba, Senior State Attorney, appearing for G all three respondents, strongly opposed the application (for injunction) contending that this Court, before granting leave to apply for certiorari, mandamusor prohibition, has no power to grant an interim order. I rejected the argument and H made an order restraining the first and second respondents, pending the hearing of the application for injunctive relief, from detaining or deporting the applicant.
When, six days later, the application for interlocutory injunction was called on, Mr Mallaba raised a point in limine. He contended, citing s 11 of the Government Proceedings Act, 1967 (the Act), that this Court has no power to make an injunctive order against the I
Government, its ministers or officials. According to the learned Senior State A Attorney what the Court can do in circumstances in which the parties are private persons is grant injunctive orders, or to make an order declaratory of the rights of the parties. Section 11 of the Act reads:
11. (1) In any civil proceedings by or against the Government the court shall, subject to the B provisions of this Act, have power to make all such orders as it has power to make in proceedings between private persons, and otherwise to give such appropriate relief as the case may require:
Provided that - C
(a) Where in any proceedings against the Government any such relief is sought as might in proceedings between private persons be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and D
(b) in any proceedings against the Government for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Government to the land or property or to the possession thereof. E
(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Government if the effect of granting the injunction or making the order would be to give any relief against the Government which could not have been obtained in proceedings against the Government. F
The term 'civil proceedings' is defined in s 2(1) of the Act as including proceedings in this court or a magistrate's court for the recovery of fines or penalties, and the phrase 'proceedings against the Government' is defined by the same subsection G as including a claim by way of set-off or counterclaim raised in proceedings by the Government. Mr Mkono, for the applicant, sought to counter Mr Mallaba'sargument by contending that s 11 of the Act has no application where s 30 of the Constitution of the United Republic (constitution) is applicable. It was the learned H advocate's contention that the constitutional provision is applicable to the instant application. He drew my attention, citing M v Home Office (1) that in spite of the fact that s 21 of the Crown Proceedings Act, 1941, contains prohibitions identical with these imposed by s 11 of the Act, the House of Lords decided, in the cited case, that courts in England have the power to issue coercive orders, including injunctions, I
A against a government minister or department. Section 11 of the Act and s 21 of the English legislation are, save for the use of the words 'Crown' and 'subjects' instead of 'Government' and 'private persons', respectively, in pari materia with s 30 of the Constitution which deals with limitations upon and the enforcement and protection of basic rights and duties. B
It cannot be doubted that Mr Mallaba's preliminary point raises an issue of considerable importance on the enforcement by this court of the provisions of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Amendment) Act, 1968, the legislation which confers on this court the power to C grant prerogative orders. While I find Mr Mkono's argument concerning s 30 of the Constitution very interesting, I do not find it necessary, in law, to determine Mr Mallaba's preliminary point on constitutional grounds. I think the point can be adequately dealt with on non-constitutional grounds. It is a rule of constitutional D interpretation that if the court can decide a case before it on non-constitutional grounds, that course should be preferred; see The Guide to American Law, at 375. I proceed, therefore, to consider the merits or otherwise of the non-constitutional contentions addressed to me.
E The decision of the House of Lords in M v Home Office, supra, demonstrates, I respectfully think, the modern approach of courts towards their (courts) duty to control government actions and omissions which affect the freedoms and rights of the individual. The complex facts of the case are accurately summarised by the learned authors of Cases and Materials on Constitutional and Administrative Law 3rd ed at 197-198. I gratefully adopt that summary: F
'M, a citizen of Zaire, arrived in the UK seeking political asylum. The Home Office rejected his application and ordered his removal from the UK, which was to take place by 6.30 p.m. on 1 May 1991. At 5.20 p.m. (after the Court of Appeal had refused an application for leave to apply G for judicial review of the decision) a fresh application for leave to apply to move for judicial review, alleging new grounds, was made to Garland J in chambers. Garland J indicated at about 5.30 p.m. that he wished his departure to be postponed pending consideration of the application, and he understood from counsel for the Home Office that an undertaking to that H effect had been given. (Counsel understood that he had only undertaken to endeavour to prevent M's removal.) Due to bungling and breakdown in lines of communication, M's departure was not prevented nor was he removed from the onward flight to Zaire during a stopover at Paris. At 11.20 p.m. Garland J, being informed of M's removal from the jurisdiction, made an ex parte order I
requiring the Home Secretary to procure the return of M to the jurisdiction and granting the A Home Secretary the liberty to apply for variation or discharge of the order on the morning of 2 May. Home Office officials then made arrangements for M's return. On the afternoon of 2 May, the Home Secretary, having taken advice from his officials and Treasury Counsel, concluded that the underlying asylum decision had been correct and that Garland J's ex parte order, B being a mandatory interim injunction against a minister of the Crown, had been made without jurisdiction. Thereupon he cancelled the arrangements for M's return. On 3 May he applied to Garland J to set aside the order of 1 May, which Garland did. Proceedings were then brought on behalf of M against the Home Office and the Home Secretary alleging contempt of court in C respect of the breach of the undertaking and the ex-parte order requiring M's return. Simon Brown J dismissed this motion on the basis that since the Crown's immunity from injunction was preserved by s 21 of the Crown Proceedings Act, 1947, neither it nor its departments, ministers and officials acting in the course of their duties could be impleaded for contempt of court. The applicant appealed'. D
The Court of Appeal, by a majority, allowed the appeal, holding that Brown J had mistakenly interpreted the law. The original order by Garland J should not have been made as injunctions could not be issued against the Crown. The Court went E on to hold, however, that as the order was binding until set aside, failure to comply with it constituted a contempt. It also held that while the Crown and Governments Departments are not subject to the contempt jurisdiction of the High Court because they are non-persons, Mr Baker, the Home Secretary, was F personally guilty of contempt. The Home Secretary appealed and the applicant cross appealed in respect of his original application against the Home Office. The House of Lords had to decide two issues of constitutional import, namely:
1. Could an injunction be issued against a government minister, and G
2. Could a government minister or department be found to be in contempt of court for failure to comply with an order of court? H
The House answered both issues in the affirmative. Their Lordships founded their decision on two grounds; firstly, on the wording of s 31 of the Supreme Court Act, 1981, which essentially, contains provisions regarding (i) the procedure for applying for prerogative orders of mandamus, prohibition and certiorari, (ii) the powers of the High Court in such applications and (iii) non-prerogative reliefs I
A which may be sought and granted in an application for prerogative orders and (2) on the undesirability of the English law being inconsistent with the Community law on the matter. Their Lordships were of the opinion that s 21(2) of the Crown Proceedings Act, 1947, did not apply to judicial review jurisdiction as that branch of the law was controlled by the Supreme Court Act. In the course of his speech, B Lord Woolf (with who all their Lordships agreed) said, at 456H--C:
'... as in private law proceedings, once the Crown or a body representing the Crown is a party to proceedings, unless some express restriction exists, the Crown, like any other litigant, is liable to have interlocutory orders made against it with which it is required to comply....' C
And at 461 his Lordship said:
D '[the] decision not to amend section 21 (of the Crown Proceedings Act) is not really surprising bearing mind that the exercise in hand related to public law proceedings while section 21 dealt with private or 'civil' law proceedings.'
E In the course of his short speech, Lord Templeman said, at 431:
'My Lords, the argument that there is no power to enforce the law by injunction or contempt proceedings against a Minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of F necessity, a proposition which would reverse the result of the Civil War. For the reasons given by noble and learned friend, Lord Woolf, and on principle, I am satisfied that injunctions and contempt of court proceedings may be brought against the minister in his official capacity ...'
G What is the legal position here in Tanzania? To that question I now turn my attention. In the scope of the meaning of the words 'civil proceedings' in s 11 of the Act (the Government Proceedings Act, 1967), so wide as to embrace proceedings in which, as in the instant application, a temporary injunctive relief is sought? H Although in the Act there is no provision similar to s 31 of the Supreme Court Act (of England, I am of the settled opinion, bearing in mind the definition of term civil proceedings' in s 2(1) of the Act, and taking into account of the definition of the phrase 'proceedings against the Government' given in the same subsection, that the word 'civil' there has not been used to mean the opposite of I
'criminal'. Thus, constitutional proceedings and proceedings which are instituted A under this Court's supervisory jurisdiction, that is to say, the jurisdiction to supervise statutory and domestic tribunals conferred on the court by s 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Cap 360) as amended by the Law Reform (Fatal Accidents and Miscellaneous Provisions) BOrdinance (Amendment) Act, 1968, must be held to be excluded by the term. The term was intended to have a restricted meaning; it was intended to mean civil matters as understood in the traditional sense of the term, that is to say, civil matters that are dealt with under this Court's general civil jurisdiction. Any statutory C provision which purports to restrict this courts jurisdiction, including inherent jurisdiction, must, in the interests of everyone living within the territorial boundaries of the United Republic, be construed strictly. The application of that principle in the interpretation of s 11 of the Act compels me to hold, as I have already indicated, D that the term 'civil proceedings' in the subsection does not embrace prerogative proceedings. In my opinion, s 11 is related to private law litigation only.
Even assuming that the words 'civil proceedings' cover prerogative proceedings, I would still regard Mr Mallaba's contention as untenable in law, because there is E another ground which compels the rejection of that argument. The relief referred to in ss 11(1) of the Act must, in my considered view, be a relief other than an injunction and specific performance. I have not the faintest doubt that to construe the subsection otherwise would make the words 'by way of' therein superfluous. It F is a settled canon of statutory interpretation that a statute should be so construed that, if it can be prevented, no clause, phrase sentence or word shall be superfluous, void or insignificant: See R v Bishop of Oxford (2) at 261. Unless the necessity or intractability of language in a legislation dictates otherwise, it is the G duty of a court to give effect to all words contained in the legislation. I can see no characteristics in ss 11(1). In my opinion, the words 'by way of' are not, and were not intended to be, insignificant in the provision. Those words were intended to, and do, control the meaning to be attached to the word 'relief' preceding them. They have the effect of excluding in intended and specific performance from the H meaning of that word. If the word (relief) were construed to include injunction the subsection would read very oddly, indeed. How can one, I ask, speak of a relief of injunction being granted by way of injunction? Neither to a lawyer not to an expert in English language would that statement make any sense. I refuse to reduce the subsec- I
A tion to the rank of absurdity. In my judgment, the prohibition imposed by the subsection was not intended to, and does not, extent to an application, like the instant one in which the relief sought is injunction itself. I would be skipping the words 'by way of' in the subsection, as the learned Senior State Attorney appears to have done, to hold that the word 'relief' there includes injunction. I can see no B warrant for doing so. On the contrary, I am profoundly convinced that both the law and common sense force one to the view that the use of those words was, as I have already, I hope, sufficiently demonstrated, intended to limit the scope of the meaning of the word 'relief' in the subsection. It is my duty to attach due weight to C the words which Parliament, in its wisdom, has chosen to use. If, in my opinion, Mr Mallaba'sargument on the effect of the subsection were right, personal freedoms and rights would have been placed in great jeopardy, as there would be inadequate judicial protection against unlawful conduct on the part of those who D are entrusted with the power of governing this country or determining, non-judicially, the rights of individuals. If that situation were to exist, the rule of law in the country would greatly suffer, with the result that members of the public would be tempted to regard the law as being a series of hazards separating the litigant from justice. The courts must do everything possible under the law to Eprevent that wrong impression of the law being formed. The law should be there to promote and not impede justice. In this country, a decision or order of a government minister or official, regardless of his or her rank, cannot outweigh the law. To borrow the argument of Lord Woolf in his speech in the M case supra (at 445H): F
'... circumstances can occur where it is in the interests both of a person who is subject to powers of government and of the government itself that the courts should be in a position to make an order which clearly sets either what should or what should not be done by the government.' G
Any collision between the freedom of the individual and the security of the State, in any sphere of national life, does not, in my considered opinion, dictate the H acceptance of Mr Mallaba's argument. If the law were as contended by the learned Senior State Attorney, justice would have been wearing a bandage over her eyes as she could not bear to see some of the decisions made in her name in that branch of the law. I can find no reason for believing that Parliament could have intended to create such a situation. I
Before parting with this application, I should, I think, say a word or two on one A important point. Since overruling Mr Mallaba's objection to this Court granting an injunction pending the hearing of the application for leave to apply for certiorari, mandamus and prohibition on the ground that the court lacked jurisdiction to do so, I have found a passage in the judgment of Lord Woolf in M's case, supra, which if I B may respectfully say so, plainly demonstrates that the High Court in England has the power to grant an interlocutory injunction pending the hearing of an application for leave to apply for judicial review. The passage, at 463--464, reads: C
What has been said so far does not mean that Garland J was necessarily in order in granting the injunction. The injunction was granted before he had given the applicant leave to apply for judicial review. However, in a case of real urgency this was, the fact that leave had not been granted is a mere technicality. It would be undesirable if, in the situation with which Garland J was faced he had been compelled to give leave because he regarded the case as an D appropriate one for an Interim injunction. In the case of civil proceedings there is recognition of the jurisdiction of the court to grant interim injunctions before the issue of a Writ, etc. (See Ord 29, rule (3)) and in an appropriate case there should be taken to be a similar jurisdiction to grant interim injunctions now under Ord. 53. The position is accurately set out in notice 53/1--14/24 to The Supreme Court Practice 1993 where it is stated that: E
'Where the case is so urgent as to justify it, (the judge) could grant an interlocutory injunction or other interim relief pending the hearing of the application for leave to move for judicial review. But if the judge has refused leave to move for judicial review he is functus officio and has no jurisdiction to grant any form of interim relief. The application for an interlocutory injunction or other interim relief could, however, be renewed before the Court of Appeal along with the renewal of the application for leave to move for F judicial review.'
If I may repeat what I ventured to say in my earlier ruling, there is no room for doubt G that this Court has the power to grant an interlocutory injunction before hearing an application for leave to apply for a prerogative order.
For the reasons I have given, I am satisfied that the law, justice and common sense dictate that I uphold Mr Mkono's contention that s 11 of the Government H Proceedings Act does not stand in the applicant's path in the instant application. Except to autocrats, it must be intolerable that, in a democratic society like ours, courts should be impotent to grant a temporary injunction in favor of an individual who complains of unwarranted or oppressive use of statutory powers by a government minister or official. It should be I
A made perfectly clear, I think that this Court can halt the bulldozer of the State before it squashes the right of an individual, company or society.
The preliminary point fails. B
C
