This problem is a straight forward problem in judicial review and prerogative remedies. Judicial review can be done through Prerogative orders. Judicial review refers to the Court’s review of a lower or administrative body’s factual or legal findings. Prerogative remedies are remedies which if not always are designed from the first for the control of governmental duties and powers, have long been used for the purpose especially. These remedies are such as certiorari, mandamus, prohibition, quo warranto and habeas corpus.
Appropriate remedies which Cristiano Ronaldo may seek in an action before the High Court and the reasons for seeking of each of the remedies are; Certiorari, this is an order issued by the High Court to an inferior court or any authority exercising judicial functions to investigate and decide the legality and the validity of the orders passed by it.
Ronaldo can apply for a remedy of certiorari following the reasons that the administrative body acted in excess of its powers of which is one of the suitable condition for the issuance of this remedy. The reason with which this order can be issued is due to the fact that the administrative body had exercised its powers in excess.
In the case of R vs. Electricity commissioners, it stated the conditions suitable for the application of the writ of certiorari in that when a body of persons having a legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division.
Ronaldo can also base on the ground that there was a failure on the part of the Director of Trade to exercise his discretionary power. The conditions vested upon this ground, is that the same discretionary powers must be exercised by the person to whom it is vested and within the ambit of the law.
For instance, in the case of Keshavan Bhaskaran vs. State of Kerala, the rule provided that no school-leaving certificate would be granted to any person unless he had reached 15 years of age. Under certain deserving circumstances, the Director was empowered to grant exemptions from this rule. But the director further self-imposed his own rule that unless the deficiency in age was less than two years, which was contrary to the provisions of the discretion. The court held that the rule of policy was contrary to the law; hence the decision was quashed by certiorari.
Also Ronaldo can advance in his argument the fact that there was a violation of the rules of Natural Justice which are the right to be heard and the rule against bias. He was not given the opportunity to be heard. For example in the case of Simeoni Manyaki v. Institute of Financial Management, the court issued certiorari on the reason of failure to observe the rules of natural justice by refusing the applicant the right to be heard. The case of Sinai Mrumbe and Another v.
Muhere Chacha provides that the order of Certiorari is issued by the High Court to quash the proceedings and the decision of a subordinate court or tribunal or a public authority where there are no other alternative remedy. In this problem there is no other remedy which has been stated to be availed to Ronaldo. Therefore certiorari can be issued against Mr. Toure. The other remedy is mandamus; this is the prerogative writ for compelling performance of public duties.
It is a discretionary prerogative power which the court will grant only in suitable cases and withhold in others. Mandamus commands the authority to perform some legal duty.
For Mandamus to be granted the case of John Mwombeki Byombalirwa v. The Regional Commissioner Kagera and Another, Mwalusanya, J (as he then was) advanced five conditions for an order of mandamus to be issued they are as follows; the applicant must have demanded performance and the respondent must have refused to perform, the respondent as public officers must have a public duty to perform imposed on them by the statute or any other law but it should not be a duty owed solely to the state but should be a duty owed to the individual citizen.
The public duty imposed should be of an imperative nature and not a discretionary one.
The applicant must have locus stand that is he must have sufficient interest in the matter he is applying for lastly there should be no other appropriate remedy available to the applicant. In this problem the conditions are present as Ronaldo has demanded the performance for the renewal of license and the Director of Trade refused and he was not been given notice as noted in the case of Palm Beach Inn Ltd and Another v. Commissioner for Tourism and Two Others.
Also Mr. Toure was having a duty to perform on him thus to grant license. This duty was not of an imperative nature as the case of considering the application of license and not discretion as per the case of Re Mohamed Aslam Khan. Also Ronaldo has a interest as he is an aggrieved person thus he has a locus standi as per the case of Alfred Lakaru v. Town Director Arusha. Lastly there is no other appropriate remedy as the right to appeal is not indicated in the problem.
Reasons in which Ronaldo can base in his application are violation of the rules of natural justice as per the case of Simeoni Manyaki v. Institute of Financial Management Also there was irrelevant consideration as per the case of Fernandez v. Kericho Liquor Licensing Board. Error of jurisdiction as per the case of R v. Minister of Transport, failure to exercise discretion and legitimate expectation as per the case of Schmidt v. Secretary of Home Affairs . PART B:
Grounds upon which Cristiano Ronaldo would advance in his argument to convince the court to grant him remedies he seeks are; Violation of the rules of natural justice, remedies can be issued where there is a violation of natural justice. In this problem Cristiano Ronaldo was not given a hearing thus the right to be heard before the renewal of his license was refused by the Director of Trade.
The right to be heard is derived from the Latin maxim ‘audi alteram partem’, which simply means hear the other side. Under this the person to be affected by the decision of the administrative body must be given a notice of the case against him so that he can defend himself for example in the case of R v. University of Cambridge, the applicant was deprived of his degree on allegations of misconduct but no notice was given to him.
The court quashed the decision for the breach of the rules of natural justice. Ronaldo was not given any prior warning by the Local licensing authority Also there is hearing thus the must be given a fair opportunity to present his case and contradict any statement prejudicial to his interests. In this problem Ronaldo was not given a hearing for example in the case of Felix Bushaija and Others v. Institute of Development Management Mzumbe and Others; in this case the students were expelled from the institution without a hearing. They made application for prerogative orders of certiorari, mandamus and prohibition to quash the decision to expel them and affording the students the right to be heard.
The remedies ware awarded basing on the ground of violation of the rules of natural justice. Another ground is legitimate expectation; this ground is evoked when an individual was affected by an adverse decision of the administrative body without being heard.
In this problem the Director of Trade refuses the renewal of business license to Ronaldo in which he was having expectations that the license was to be renewed as it in other years the respective administrative authority denies to grant the same to that individual, without availing him with a hearing and good reasons. In the case of Schmidt vs. Secretary of Home Affairs, it was held that the rules of natural justice also protect any legitimate expectation of a person of which it would be unfair to deprive him without hearing of what he would have to say.
There is failure to exercise jurisdiction as there is dictation or abdication. Acting under dictation happen when an authority acts under the dictation of a superior authority which in fact was not what was intended by the statute.
This ground is clear as the Director of Trade, Mr. Koure Toure, was acting from firm instructions of Thiery Henry the influential councilor at the city hall. For example in the case of Cader vs. Commissioner for Mosque, in this case a board was having power to appoint trustee of mosque they consulted the member of Parliament who supplied the list of names including his own name the board later endorse the names supplied by the Member of Parliament.
The court held that the decision of the Board was null and void because it was made by an outsider. Also Mr. Koure Toure, the Local licensing Authority have considered irrelevant matters and leaving out relevant matters. The statement that the license is not renewable on the grounds of irresponsible behavior of the applicant and that he does not respect his elders and consequently not being fit to hold a license, is purely a consideration of irrelevant matters which omits the principle that it is only the relevant matters that are to be considered by any administrative body.
If the authority takes into account only irrelevant or extraneous considerations, the exercise of that power will be ultra vires and the action termed as bad. For instance, in the case of Hukam Chand vs. Union of India, upon the petitioner’s phone disconnection on the grounds of it being used for illegal trading, the Supreme Court held that it was an extraneous consideration and an arbitrary exercise of power by the authority.
Likewise, in the case of Re:Bukoba Gymkhana Club, in this case the court ruled that the refusal for the renewal of the license by the Licensing Authority on the ground that the club was discriminatory by looking in its composition was ultra vires due to irrelevant consideration In addition to that the decision made by the Director of Trade as the Local Licensing Authority was unreasonable and no reasonable authority will make such a decision of refusing the applicant’s renewal of business license on the ground of irresponsible behaviour and that he did not respect his elders.
In the case of Kruse vs. Johnson, the local authority passed the by law prohibiting any person from music and singing in any public place or highway within 50 yards of any dwelling house the court nullified the by law on the ground of unreasonableness and therefore ultra vires.
Error of jurisdiction, this happens when an inferior court or tribunal acts without jurisdiction or fails to exercise jurisdiction vested in it by law. This is due do the fact that Mr. Thierry Henry assumed jurisdiction and give firm instructions to the Director of Trade not to renew Ronaldo’s license under any circumstance. In the case of R v. Minister of Transport, it was held that even though the minister was not empowered to revoke the license he passed an order of revocation of license.
The decision was quashed. Convincingly Cristiano Ronaldo should be granted the remedies as prayed for due to the grounds afore mentioned the aim being to keep the Local Licensing Authority within the limits of its jurisdiction.
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———————– Black’s Law Dictionary (8th edition). Wade, H.W.R. & Foryth. (2004). Administrative Law. (9th Ed). New York: Oxford University Press.
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