19970207 TZHC Dar es Salaam

..... ,~--- . ~- \ . ., \ IN THE HIGli ClrJI:l OF iJUJZANIA 1-1.i: l)LR J<3 SALAAM . Q V MISC. CIVIL CASE N0.37 OF 19~6 .A13DJ\L.1AH S. LIK_.:i..i~- vC-A 11iD 24 o_;,,JT;,R~; AnPLIC A1.T'-s . • • • • • • • • • • • •· • • ~ • • • ..ti.I:" A.lv • .u.:i ~ ·~ J.: Versus . THb DAR ES CAi.i:AAI·1 REGIONAL MJJ1IAGING COMMI:£IEE OF '.!:L.?3Al'.IA RED CROSS SOCIElY ... RESPONDENT R UL I HG MAPIGANO, J. The twen1i.Y five applicants !lave taken out a chamber summons seeking leave to brih~ a substantive 3pplication for the orders ~f f~rtiorari· and mandamus: ~ will be quick to observe that the ehamber ~ummons and the documente which accompay it are rather badly and untidly framed. The ~t.Unmons does not say against whom the orders ~hould be directed and for whai purpose mandamus should be issued. The statemeni·1s not.only verbose but also contains irrelevant msterials. Likewise lihe affidavit. ~ The· matier arises in this way. The applican1is were membtJf . ot the Tanzania Red Cross soaie;~ and offi~e~holders at the ··branch level. They resented the appointmen1i of one Mayasa Basheik.h as 1ihe Dar es Salaam· Regi-Qnal Acting Chairperson of lihe · ' soeiety, on 'the ground that she wae not a member of i;he sooiewYe lhe applieants lodged a joint object~on to the National Chairman on ~9/6/96. 1he next "thing which followed, and it was quick in coming, was their expulsion from the society and ~hey were thus doubly aggrieved. They seek -~~a challenge their ejeotion 1 on the grounds that.natural jus~ice b.as been breached, in ·lihai I ~hey were penalized tµ1heard, that May~sa Basheikh participated in the decision, and that the decision was unreasonable and biased. ?here is a prima facie actionable wrong and it seems lO me to baa s1irong arguablQ cause. t- - 2 - But I put Ghe 1uestion tci.Mr. Magesa who advocates for the I applicants whether.t~~ remedy ~ios in ·Gbe realm of public law i.e. whether Che 6ecisions of·~:-c Cociety . are amenable to the supervisory jurisdiction of tllL., court. His reply was a very short "yes," anci he plac~d 'tio·.;al reliance on the decision in the .English case of R. v Criminal Injuries Co.mpensa•tion Board Ex-parte Lai.n, [f96]7 2 Q :s 864. Lord', Parker c.J. had lihis ';, say in that oase: "We have, as it seems, reached the position when the ambit of ·eertiorari ,can be said to cover every caae in which a body of persona, of a public• as oppQsed to a purely private or domes·iiiC character, has ·lio deliermine matters affecting $Ubjects provided always thaG it has a duty iO act judicially." So Mr Magesa's argument, if implioit , is that ihe Society is a body of a public character and ihat i i h~s a duly to act j ud_icially. I regret to sav thali I am unpersuaded and .J. do.not thin~ that that English case is of any assisiance to the applicants, Unfortunately Mr. I1agesa hGs nov made any at·i;empli 'to show why ihe society should be considered as q bocty of public character and as having legal duty to ac1i judicially. :£his is a subjeot wiliil .which this cour·i; haf:l dealt with b~:fore. What r said earlier to-day· in Alhaji 1~.J. Mungula ,v B4~H.AiA, Misc. Civil cause No•6 of 1996, •and the authori tiBs I ci "!led in my ruling, notably " R. v Panel on Take-Overs, [f98'J7 i ALL ER 564, are, I think, ) relevant here. It was held in ·liha; case tha't .in determing whether the decisions of a particular body were subject to judi.cial r.eview, 1ihe eourt was nQ~· cqnfined ·to considering ~he s_ource of the body 1 s powers and du"iies but could also look to their na ·cure. :J.:hue if ·the d uuy ~mpoeed on a body, wheliher expressly or by implicatiori, is a pu~lic duty and the body is exercising public· law functiens -;he court has j~isdiction i.o entertain an applice~ion for Judiciai review of vhat body's decisions. \ ,. '\ - 3 I said in Alhaji Mungula.' s application "that BAKWAJ:A had . not been demonstr~ted ~d.be ~uch a body. I do the same in respect of the '.i:ar.tzania Red Cross Socie•ty, Such being the circumstances, leave muit be withheld, and it so ordered. But dont get me wrong. I do noi. nrean ·Go say 04t6uggest that the applicani.s are witboui. legal ~emedy,/wha~ they allege is true. Wha, I am saying is simply ·t;ha1i i:;hey have pursued the wrong remedy in lhis appli~~i.ion. Remedy should have been sought in private law. Delivered. Mr. Mwengela/Magesa for Applicants Mr. Kamba for AGtornev General. Ma:pigano Judge 7.2.97 r '