attorney general another vs national bank of commerce 2011 tzca 26 28 february 2011

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA ( CORAM: RUTAKANGWA, J.A.. MJASIRI, J.A., And MASSATI, J.A.) CIVIL APPEAL NO 35 OF 2009 1. ATTORNEY GENERAL 1 2. MINISTER FOR LABOURJ ................................... APPELLANTS VERSUS NATIONAL BANK OF COMMERCE LTD.......................RESPONDENT (Appeal from the decision of the High Court of Tanzania at mwanza) (Sumari, 3.) dated the 25th day of July, 2008 in Misc. Cause No. 3 of 2007 JUDGMENT OF THE COURT 22. &. 28 FEBRUARY, 2011 MASSATI, 3.A.: This is an appeal against the decision of the High Court (Sumari,J.)granting the orders of certiorari and mandamus against the decision of the Minister for Labour dated 6th December, 2006. 1 The facts of the case are that one LUCAS MASANJA, who appeared as the third Respondent in the application before the High Court, (but not a party in the present appeal) was an employee of the present Respondent (the National Bank of Commerce). He was stationed in Mwanza. In November, 2001 he was dismissed from his employment on the ground of misconduct. He referred the dispute to the Mwanza Conciliation Board. In its decision dated 12/7/2006 the Board ordered that he be reinstated with full benefits. The employer preferred a reference against that decision to the Minister under the provisions of the erstwhile Security of Employment Act(Cap 387- R.E. 2002). After finding that the reference did not accompany a statutory Form No. 7 made under section 51 of the Security of Employment Act, (Cap 574) (now S.53 of Cap 387) the Second Respondent made the following decision:- KARATASI NA. 8 "(i) M KURUGENZIM TENDAJI NBC LTD S.L.P 1863 D A R ES SALAAM (ii) KA TIBU WA TUICO (M) MWANZA NDUGU LUCAS B. MASANJA S.L.P 1074 MWANZA Kuhusu LUCAS MASANJA (Jina la m fanyakazi) aliyeajiriw a na NBC LTD. Baada ya ku fikiria rufani iliyoletw a kwangu kuhusu uam uzi wa Baraza la Usu/uhishi NYAMAGANA katika shauri la m fanyakazi aliyetajw a hapo juu, nim eamua kam a ifuatavyo:- KWA M UJIBU WA KIFUNGU 42 CHA SHERIA YA USALAMA KAZINI SURA YA 387 R.E. 2002 NAAMUA KWAMBA HAKUNA RUFAA M BELE YA W AZIRIKW A SABABU MW AJIRIHAKUJAZA KARATASI YA 7 YA RUFAA KAMA KIFUNGU CHA 51 CHA SHERIA YA USALAMA KAZINI KINA VYOIAZIMU. HIVYO UAMUZI WA BARAZA LA USULUHISHI WA KUMRUDISHA KAZIN I MFANYAKAZI UTEKELEZWE. Tafadhali m faham ishe m fanyakazi ipasavyo. Tarehe 6/12/2006 S a h ih i........................................................... MHE. JOHN CHILIGA TI (MB) W A Z IR I WA K A Z I Nakala kwa: M w enyekiti, Baraza la U suluhishi S.L.P 118 Nyam agana M w an za This decision is carried in Form No. 8 in the second schedule to the Security of Employment (Disciplinary Proceedings) Regulations 1969. The Respondent was aggrieved by the Minister's decision. After obtaining leave, she filed an application for the prerogative orders of certiorari and mandamus, which as shown above, was granted by the High Court. The Appellants were aggrieved, hence the present appeal. At the hearing of the appeal, Ms MONICA OTARU, learned Principal State Attorney, appeared for the Appellants. The respondent, who, according to the records was duly served, did not appear. Lucas B. Masanja, who was the third Respondent in the High Court but not in the present appeal, but was served, was also present. For purposes of record, Mr. Masanja informed the Court that he had preferred a separate appeal in this Court, but had reached an amicable settlement with the respondent and had withdrawn the appeal. In view of the circumstances, we allowed Ms Otaru, to argue the appeal in the absence of the Respondent. The Appellant preferred three grounds of appeal, namely:- "i. That the learned judge erred in law and facts to hold that failure to fill form No. 7 was not sufficient reason for the Minister not to hear the applicant's reference. ii. That the learned judge erred in law and facts to issue certiorari and mandamus as prayed by the respondent without taking into account the fact that the appeal before the Minister was improperly filed (sic). iii. That the learned judge erred in law and facts by allowing the player (sic) prayed by applicant, which resulted the violation (sic) of the order mandatory use of proper procedure" (sic). 5 Although Ms OTARU, argued the first and third grounds together and finished with the second, the gist of her complaints is this:- Since section 53 (51) o f the Security of Em ploym ent A ct (Cap 387) em powers the M inister to prescribe form s fo r use under the A ct and since the section uses the word "sh all" in applying such prescribed form s, and since section 53 (2) o f the Interpretation o f Law s A ct (Cap I - R .E 2002) provides that whenever the word "sh a ll" is used, it means, it m ust be perform ed, and since Form No. 7 was prescribed fo r the purposes o f accom panying a reference under the Act, it ought to have been used in preferring the respondent's reference. Since the respondent did not use Form No. 7 the reference was not properly before the M inister, who was therefore, rig h t in rejecting it. Since there was no reference before the M inister, the latte r could not m ake any decision th at could be the subject o f the order o f certiorari\ and la stly since Form No. 7 was not filed, the M inister could not be ordered to hear the reference by an order o f mandamus. In supporting her arguments, she referred us to a number of decisions by this Court and the High Court, such as SHABANI NASSORO AND ANOTHER V TANZANIA PORTLAND CEMENT CO & ANOTHER (1996) TLR 96 and GODWIN NDEMESI & KAROLI ISHENGOMA V TANZANIA AUDIT CORPORATION (1995) TLR 200 (CAT). On the above grounds Ms Otaru, prayed that the appeal be allowed. The decision of the matter in the High Court and in this Court revolves around the wording of section 53 of the Security of Employment Act (Cap 387). That section provided (as the statute is no longer in force) as follows: "(53). The M inister m ay prescribe form s to be used fo r the purposes o f th is A ct and any form prescribed s h a ll b e used, with such variations fo r the m atters and in the cases fo r which they are prescribed . " At the centre of the controversy is the phrase "a n y fo rm s p re s c rib e d s h a ll b e u se d ." The learned judge of the High Court held that:- "The essence o f ............ Form No. 7 is ju s t to inform the M inister that the re fe re n ce ..................... has been filed. Failure to attach it o r accom pany it is not m andatory under section (sic) 53(2) o f Cap 387. Why because S. 53(2) is n ot in existence........." 8 Our modest attempt to understand the last two sentences of the above paragraph leads us to infer that what learned judge meant was that filing of Form No. 7 was not mandatory. However, the learned judge wrongly quoted the appellant's argument in referring to "section 53(2) of Cap 387." At page 7 of her ruling, the learned judge attributed this to the State Attorney's argument. But with respect, there the State Attorney, expressly referred to "section 53(2)" of the Interpretation of Laws Act and not section 53(2) of the Security of Employment Act, which as the learned judge rightly remarked, never existed. This misapprehension about what law was applicable in interpreting the word "shall" in section 53 of the Security of Employment Act, is clearly demonstrated in the ruling of the learned judge. In her ruling, she herself never made reference to section 53(2) of the Interpretation of Laws Act (Cap I - R.E. 2002), but dismissed the reference to section 53(2) of Cap 387 which she thought was referred to by the appellants, but which was not. Be that as it may, we think the real issue here is whether the word "shall" used in section 53 of the Security of Employment Act (Cap 387) (or section 51), in relation to the use of forms prescribed by the Minister 9 means, it is mandatory, and if so, whether its omission is necessarily fatal.? Ms Otaru was of the view that the word meant it was mandatory and its omission was fatal and she based her argument on section 53(2) of the Interpretation of Laws Act and the several decisions as referred to above. But when we referred her to section 2(2) (b) of the Interpretation of Laws Act, section 50 of the Security of Employment Act, and section (143(3) of the Employment Act (Cap 366 - R.E. 2002) she had a change of heart, and submitted in turn that the use of the form No. 7 was not necessarily fatal in the context and spirit of the labour law regime. We couldn't agree with her more. We shall explain. It is true that section 53(2) of the Interpretation of Laws Act directs that whenever the word "shall" is used in any written law, it means that function must be performed. But section 53(2) of the Interpretation of Laws Act, should not be read in isolation from section 2(2) of that Act. Section 2(2) provides:- 10 "The provisions o f th is A ct sh a ll apply to and in relation to every w ritten law, and every pu b lic docum ent w hether the law o r p u b lic docum ent was enacted\ passed, m ade o r issued before o r a fter the com m encem ent o f th is Act, unless in relation to a p articular w ritten law or docum ent; (a) Express provision to the contrary is m ade in an Act, (b) In the case o f an Act, the in ten t and object o f the A ct o r som ething in the subject or content of the A ct is inconsistent with such application or, (c) In the case o f subsidiary legislation the in ten t and object o f the A ct under which th at subsidiary legislation is m ade is inconsistent with such application. 11 Recently, the full bench of this Court in Criminal Appeal No. 118 of 2010 (unreported) BAHATI MAKEJA V R considered the ramifications of the word "shall" in section 293(2) of the Criminal Procedure Act, read along with section 53(2)and section 2(2)(a) and (b) of the Interpretation of Laws Act, and concluded that the word "shall" in the CPA was not imperative, but relative to the provisions of section 388 of the CPA. What this decision means is that:- (i) Section 53(2) of the Interpretation of Laws Act should always be read in conjunction with section 2(2) of the Act (ii) Section 53(2) of the Act only applies where a particular Act or written law does not provide to the contrary or if by its contents, its application (i.e section 53 (2) would defeat the purpose of the particular written law or would be in­ consistent with such law. In the present case, to get the object of the Security of Employment Act, the Act, should be read as a whole. Going through the Act, we 12 stumbled across section 50 which enshrines the guiding principles in the application of the Act. It provides:- "50. Subject to the provisions o f the Act, which excludes the ju risd iction o f the courts, the provisions o f Part X II o f the Em ploym ent A ct sh a ll apply m utatis m utandis in relation to any question, difference o r dispute between an em ployer and an em ployee arising out o f the decision o f the M inister o r a Board under th is A ct as they apply in relation to the questions differences o r disputes referred to in that Part. " This then takes us to the Employment Act (Cap 366 - R.E. 2002). Part XII of the Employment Act, relates to REMEDIES, JURISDICTION AND PROCEDURE OF COURTS. In the light of section 50 of the Security of Employment Act, it means that the guiding principles of procedure applicable under the Employment Act should also be applicable under the Security of Employment Act. Section 143 prescribes the procedure and the 13 guiding principles applicable in proceedings subsequent to reports to a Magistrate's Court. Of particular interest is s. 143(3) which reads:- (3) The provisions in the C ivil Procedure Code sh a ll in so fa r as they m ay be applicable, apply to proceedings under th is section. P ro v id e d th a t th e m a g istra te s h a ll h e a r a n d d e te rm in e su ch , p ro ce e d in g s a cc o rd in g to s u b s ta n tia l ju s tic e and w ith o u t u n d u e re g a rd to te c h n ic a litie s o f p ro ce d u re . "(Emphasis supplied). From the provisions of the Security of Employment Act, the principles guiding the application of the Employment Act, and the Interpretation of Laws Act, we are certain in our minds that the object of the provisions of the Security of Employment Act is also to do substantial justice without undue regard to technicalities of procedure. The word "shall" in section 53 of the Security of Employment Act therefore ought to be read against this background. First, we must note that there is nothing 14 ______ ______ — u m u u ^ 111 a n y M lU U IIICU IU IIII or without the form, the reference would be invalid. And in view of the provisions of section 50 of the Security of Employment Act and section 143(3) of the Employment Act, the word "shall" in section 53 of the Security of Employment is also relative and has to be interpreted in the light of whether non compliance in filing the prescribed forms advances or hinders substantial justice. Form 7 is required to accompany the employer's memorandum of reference to the Minister. It is available under the 1st schedule to the Security of Employment (Disciplinary, Proceedings) Regulations GN 98 of 1969. We have looked at the said form. This is how it looks like:- 15