19970207 TZHC Dar es Salaam

., MISC. CIVI~ CAUSE N0.6 OF 19~6 ALEAJ·r A. J. MUlWULA •••.••••• ~ • ~ • A?1?LICAl:I Versus BARAZA KUU LA WAISLAM VfJi. TP~tJzJ-.}JIA • ~ ..••....• -RBSPOl-fDE1{1 RULiliG The applicant was the :::xecucive ::3ecre Go.ry of the Bc1.raza Kuu La 'ciaislamu 'Wa :ranza'riia (BAKWA'l:A) up to Pebruary, 1 ~96 when he was. :;i-;en tLe sack. lle has described BAKvf_;fiA as an incc,rpora·ted. religious:: o:rganizaGion whose objective is to promo~e Ghe Islam~c faith. He has deposed Go having heard his removal from office being broadcast on Radio lanzania on 25/2/96, and to having read an article run by the Daily News of next dav on the same subject. He has u~so deposed to Ghe fact that his re~oval came to him as a co □ plete surprise, as he had noG been afforded anv oppor"tunicy of" being heard before the action was taken. Assuming, as I musG do for ~he purpose 01 the instant application, that these depositions are true, then bis complaint ~hat natural jus~ice has noc· been done ~o him· is we:Ll grounded. He is seeking leave ·co · apply for s.n order of cer1;iorari to quash the decision of B1\.1:·wxiA. ~be issue arises as GO whe·Gher BA}{\.JA2.A is a body tha-c; is subjec,:; ,:;o judicial review. On his behalf, Mr. Mkoba, learned advocate, sc:Jys Gl:u.:n B_;-1..rJfLL\. is sucb 2 body anci his argumeu-t is on ~be following lines: 1-3.AK.-TJL.i~A ·is admi t"tedly a priv~~e body. ihere ¼8S d Gime wben certiorari did not lie against ~rivate bodies. It is no longer so. It is now accep.ted ·thc,·G such order can lie againsli sucb bodies · provided -Ghe body in ques~.:..on di::3charges a public function. The determinaL~fu~~or is wh~,:; a ~ody is doing and not how it was formed. 'i ,, 'i •'i ./ ·•I I i i I I I ~ ~ ' I I ~ ! • ~ I I accept Mr 0 J:1-1koba 1 s submission as correctly stating the- current • state of the law. l''lro JVikoba has referred this Court to the case of ~~~v~Pap(:;l sm Take-Over:~, [:i98Jj 1 ALL ER 564, decided by the Court of Appeal of England, and it is unnecessary for me to say with what profund respect I regard any judgment or observation of that Court. In that case counsel for the Panel had submitted that review jurisdiction only extends to bodies whose po1;1er is derived from legislation or the exercise of the prerogativeo The argument on behalf of the applicant ',ms that that view is too narrow, and that regard has to be had r,.ot only to the source of the body's power, but al.,_;o to 1-ihether it operates as an integnal part of a system Hhich has a public law char,J.cte:c, unci. j_2, supported by public law in that public lavJ sunctions are C,j)I)lied if ih:i edicts are ignored, and performs what might be described as public lE~w functionse 'l'he Court of Appeal went along with the applicant; s argument and held, vide the hee.dnote, that: iVIn determing whether tl1.e decisions of E~ particular body were subject to judicial review, the court was not confined to considering the source of the body 1 s po·1•!ers and duties but could also look to their nature. Accordingly, if th(~ duty imposed on a body, 'dhether expressly or by implication, was a public duty and the body was exercising public law functions, the court had jurisdiction to entertain an applica.tion for judicial review of that bodyi s decisionso ;, In the course of his judgment Donald.Gan HR looked ba.ck at what had been judicially decided in the la.st hio decades or so. He observed, and I think it a.lso bears repeating here~ that! 1 'The requirement that the body should have 2. .duty- to act judicially was delete6. in O'Reilly v MackmcU\ 719827 ' . ~ 3 ALL ER 68 0 9 and. in Council of CiviJ. Servi-c0. Unions Y.J!Jl~~~-t.e.~_f:()r_ ..CJ..~Y.~).Js.e._::::~j_c~E:.1 /198~/ 3 ALL' ER 9.35, · the Supervi,sor~r jurisdic b.,m of the Court wa,s extended to 3. person excJrcising purely prerogative power; and in Gillick v Uest l'for:folk and Wisbecl-1 ~rea~Ji.~.C:I~E__ A13-J)!.?~~ /1982J' 3 ALL }~R LJ-027I7on1 Fraser and Lord Scarman cxpref,S(,d the vim-1 obiter that judicial review would extend to guidence circulars issued by a department of rsta te 1a1i thou t specific authority.,; He went on to observe at 577 that:- ,; In all the reports it is possible to find enumera. tions 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 &s a public element~ which can ta~c many fo-:--r:is, &nd the exclusion from the jurisdiction of bodies whose source of power is consensual submisGion to its jurisdic tiono ' 1 And therein lies the ob.stacle tc th::: present application. i' ,, .( C ► J • It is wrong for l'-fr. Mkoba to contend that B,\.KWA'l'A discharges public functions 7 Mro Mkoba would have this Court acceJ_:;t 7 but I cannot 7 that BAKWATA officiates marriage ceremonies and th8.t it is legally charged. with the function of conciliating matrimonial difficul tieso l·1ro Mkoba seems to be unaware that the statute has been amended. Even suppo:z.;~ng that BAKlJATA were still performing sucb functions, I would still hold that this Court is not competent to entertain tho intended applice.tiono I would tale the view that judicial review would be confined to the decisions of l::'AKWA'lA which pertain to :such legal functions, and that there would be nothing whic}1 v1nuld ,sufficiently bring i t,s decision on matters respecting the domestic :;.~eJ..cttionship behwen il: &.i1d its officers within the rec:•.ch of judicial ro'Jie :1 o 1 In these circumst2..nces I feel bound to concL1de that this application i,s misconceivedo It is accon:lingly refused. DelivcrGcl No appearance for the Applicant ErQ Kamba for the A ttorne;y Ge:1.eral. DoPo MAFIG!-1.NO I certify that Ghis is a true copy of the orig~nal. I