ALHAJI A J MUNGULA v BARAZA KUU LA WAISLAM WA TANZANIA 1997 TLR 50 (HC) C

 ALHAJI A J MUNGULA v BARAZA KUU LA WAISLAM WA TANZANIA 1997 TLR 50 (HC) C

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J D

MISCELLANEOUS CIVIL CAUSE 6 OF 1996

7 February 1997

Flynote

E Review - Which bodies subject to - Baraza Kuu La Waislam Wa Tanzania

(BAKWATA) - Decision of BAKWATA to remove employee from office - Decision

not subject to review.

-Headnote

F The applicant was the Executive Secretary of Baraza Kuu La Waislam Wa

Tanzania (BAKWATA) but was removed from office without having been afforded

the opportunity of a hearing. He sought an order of certiorari to quash the decision.

Held:

(i) An order of certiorari could lie against private bodies provided the

body discharged a public function; G

(ii) Judicial review would be confined to the decisions of BAKWATA

which pertained to the performance of a legal function: its decision on matters in

respect of the domestic relationship between it and its officers would not be subject to

review.

Case Information

Application refused. H

Case referred to:

1. R v Panel on Take-overs and Mergers [1987] 1 All ER 564

Mkoba for the respondent.

Kamba for the Attorney-General. I

1997 TLR p51

[zJDz]Judgment

Mapigano J: A

The applicant was the Executive Secretary of the Baraza Kuu La Waislam Wa

Tanzania (Bakwata) up to February, 1996 when he was given the sack. He has

described Bakwata as an incorporated religious organization whose objective is to

promote the Islamic faith. B

He has deposed to having heard his removal from office being broadcast on Radio

Tanzania on 25 February 1996, and to having read an article run by the Daily News of

next day on the same subject. He has also deposed to the fact that his removal came to

him as a complete surprise, as he had not been afforded any opportunity of being

heard before the action was taken. Assuming, as I must do for the C purpose of the

instant application, that these depositions are true, then his complaint that natural

justice has not been done to him is well grounded. He is seeking leave to apply for an

order of certiorari to quash the decision of Bakwata. D

The issue arises as to whether Bakwata is a body that is subject to judicial review. On

behalf of the applicant, Mr Mkoba, learned advocate, says that Bakwata is such a body

and his argument is on the following lines: Bakwata is admittedly a private body.

There was a time when certiorari did not lie against private bodies. It E is no longer

so. It is now accepted that such order can lie against such bodies provided the body in

question discharges a public function. The determinant factor is what a body is doing

and not how it was formed. F

I accept Mr Mkoba's submission as correctly stating the current state of the law. Mr

Mkoba has referred this Court to the case of R v Panel on Take-Overs and Mergers

(1), decided by the Court of Appeal of England, and it is unnecessary for me to say

with what profound respect I regard any judgment or observation of that G Court.

In that case counsel for the Panel had submitted that review jurisdiction only extends

to bodies whose power is derived from legislation or the exercise of the prerogative.

The argument on behalf of the applicant was that that view is too narrow, and that

regard has to be had not only to the source of the body's power, but also to whether it

operates as an integral part of a system which has a public H law character, and is

supported by public law in that public law sanctions are applied if its edicts are

ignored, and performs what might be described as public law functions. The Court of

Appeal went along with the applicant's argument and held, vide the headnote, that:

I

1997 TLR p52

MAPIGANO J

A `In determining whether the decisions of a particular body were subject to

judicial review, the court was not confined to considering the source of the body's

powers and duties but could also look to their nature. Accordingly, if the duty

imposed on a body, whether expressly or by implication, was a public duty and the

body was exercising public law functions, the court had jurisdiction to entertain an

application for judicial review of that body's decisions.' B

In the course of his judgment Donaldson MR looked back at what had been judicially

decided in the last two decades or so. He observed, and I think it also bears repeating

here, that: C

`The requirement that the body should have a duty to act judicially was

deleted in O'Reilly v Mackman [1982] 3 All ER 680; and in Council of Civil Service

Unions v Minister for the Civil Service [1984] 3 All ER 935, the supervisory

jurisdiction of the Court was extended to a person exercising purely prerogative

power; and in Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3

All ER 402, Lord Fraser and Lord Scarman expressed the view obiter that D judicial

review would extend to guidance circulars issued by a department of state without

specific authority.'

He went on to observe at 577 that: E

`In all the reports it is possible to find enumerations of factors giving rise to

the jurisdiction, but it is a fatal error to regard the presence of all those factors as

essential or as being exclusive of other factors. Possibly the only essential elements are

what can be described as a public element, which can take many forms, and the

exclusion from the jurisdiction of bodies whose source of power is consensual

submission to its jurisdiction.' F

And therein lies the obstacle to the present application.

It is wrong for Mr Mkoba to contend that Bakwata discharges public functions. Mr

Mkoba would have this Court accept, but I cannot, that Bakwata officiates G

marriage ceremonies and that it is legally charged with the function of conciliating

matrimonial difficulties. Mr Mkoba seems to be unaware that the statue has been

amended. Even supposing that Bakwata were still performing such functions, I would

still hold that this Court is not competent to entertain the intended application. I

would take the view that judicial review would be confined to the H decisions of

Bakwata which pertain to such legal functions, and that there would be nothing

which would sufficiently bring its decision on matters respecting the domestic

relationship between it and its officers within the reach of judicial review. I

1997 TLR p53

In these circumstances I feel bound to conclude that this application is A

misconceived. It is accordingly refused.

1997 TLR p53