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 Cpurpose 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
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
In these circumstances I feel bound to conclude that this application is A misconceived. It is accordingly refused.
1997 TLR p53
