Michael David Nungu was employed by the Institute of Finance Management (IFM) as a lecturer and eventually became a Senior Lecturer. He worked for IFM from 1 July 1988 until 6 April 1999, when he was summarily dismissed.
His dismissal followed disciplinary proceedings arising principally from allegations that he had victimized a student and improperly interfered with examination marks. Other allegations included dishonesty and fraudulent procurement of employment. The matter eventually reached the former Industrial Court of Tanzania, which found against Nungu on the relevant disciplinary complaints.
Nungu subsequently pursued a revision before the Industrial Court. He objected to Mwipopo J., who had presided over the original proceedings, also presiding over the revision. The objection was rejected and the revision was unsuccessful.
He later sought judicial review in the High Court, asking principally for certiorari to quash the relevant decisions and mandamus to restore him to employment and recognize his employment entitlements. The High Court dismissed the application, holding, among other things, that several of his complaints sought a re-evaluation of evidence and therefore belonged to an appeal rather than judicial review.
Nungu appealed to the Court of Appeal in Civil Appeal No. 170 of 2020.
The central issues before the Court of Appeal were essentially:
Whether Nungu was entitled to pursue judicial review when the law provided another avenue of challenge, particularly an appeal.
Whether the complaints raised by Nungu were properly matters for judicial review or were, in substance, challenges to the correctness of the Industrial Court's findings on evidence.
Whether the High Court was correct in refusing the prerogative remedies of certiorari and mandamus.
In particular, whether the complaint concerning the same Chairman presiding over the original proceedings and the subsequent revision established a sufficient violation of natural justice or statutory requirements to justify judicial review.
The Court of Appeal dismissed the appeal.
A significant part of the Court's reasoning concerned the distinction between judicial review and appeal. The Court explained that judicial review is available to an aggrieved person, but where the law provides another avenue of redress such as an appeal the party must properly consider and ordinarily pursue that avenue.
The Court stated:
“the process of judicial review, though open for anyone feeling aggrieved, one has to properly consider pursuing the remedy especially where there are other available avenues for judicial recourse, such as an appeal.”
The Court further noted that Nungu had failed to demonstrate why he did not pursue the appeal provided under section 27(1C) of the Industrial Court Act. Thus, judicial review could not properly be used as a substitute for the appellate process.
The Court also maintained the important distinction that judicial review is concerned principally with the legality, procedural propriety and decision-making process, rather than providing an opportunity for the reviewing court to reconsider evidence and substitute its own conclusion for that of the original decision-maker.
The case is particularly important in Tanzanian administrative and public law for the following propositions.
First, judicial review is not an alternative to an appeal. Where legislation creates a specific appellate mechanism, a litigant should ordinarily utilise that mechanism rather than attempting to convert an appeal into judicial review. The principle has subsequently been cited by Tanzanian courts when considering whether applicants have exhausted available remedies.
Second, the nature of the complaint matters. A litigant cannot ordinarily label a challenge as an “error of law” and thereby transform a substantive challenge to evidence into judicial review. Where determination of the complaint requires the court to reconsider evidence and reach a different factual conclusion, the appropriate mechanism is generally an appeal.
Third, the case reinforces the supervisory character of judicial review. Judicial review examines the legality and manner in which a decision was reached not simply whether the decision-maker reached the correct conclusion on the evidence.
Fourth, the case is important on the exhaustion of remedies doctrine. The Court's reasoning establishes that the existence of an effective statutory avenue of redress is highly relevant when a party chooses judicial review instead. Later Tanzanian decisions have expressly relied on Nungu for the proposition that available avenues of judicial recourse should be properly considered before invoking judicial review.
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