20010425 TZCA Dar es Salaam1

& flJ rp CCUHT OF APPEAL OF TANZANIA AT DAP t ALAM ! 1. i ) CIVIL AJPLICATION NO0 74 OF 1998 In the Matter of an Intended Appeal BTJ1N BANK OF TAHANIA APPLICANT AND 1 SAIDI A MAPINLA & 3o O'H 0 0 RISPONDDNIS 2. T. ATTOidLY Gl'L (Application for ievis ion from the decision of the High Court of Tanzania at Dar es Salaam) dated the 2nd day of October, 1998 ( in Misc. Civil Cause No. 57 of .1 RIJLI1 7 G OF Ti COUPT This is an application moving the Court to exercise its revisional jurisdiction to revise the decision in High Court Misc. Application No. 57 of 1996. At the commencement of the hearing of the application, a prelininary oblection was raised by Professor Shivji, learned counsel for the first respondents, that the application was incompetent, it does not fall within any of the categories in Which the Court can invoke its revisional jurisdiction. We overruled the objection in the course of which the background to the case was set out fully. \Je need not repeat it here. However, in order to facilitate easy appreciation of the sequence of events, we will preface this ruling with a summary of the salient fatures of the matter, * 2- The case arises from an industrial dispute between the applicant, Bank of Tanzania and the first respondents. In the process, the matter was taken to the Minister for Labour and Youth Development who dismissed the first respondent's complaint. Dissatisfied first respondents filed a petition in the High Court (Mapigano, J., Mackanja, J., and Kalegeya, J.) where, an order for certiorari was issued quashing and setting aside the Ministers decision. This is the decision which it is sought to be revised. The main ground for the application as set out in the notice of motion is that the high Court in determining Misc, Civil Cause No, 57 of 1996, resulting in the setting aside of the decision of the minister, 1- ,4 -, the applicant was not given an opportunity of being heard. This, Dr. Tenga, learned counsel for the applicant claisied, was a serious violation of the principles of natural justice. For this reason, he further contended, it is an appropriate case in which to invoke the revisional powers of the Court. In elaboration, Dr0 Tenga briefly outlined the case for the applicant as follows From the time the trade dispute was declared between the applicant and the first respondents until the time the High Court decision was delivered, the applicant was involved throughout. Thereafter, the applicant was not made aware of the proceedings in the High Court until 16,10.1998 1 when a letter from the advocate for the first respondents, seeking the reinstatement of the first respondents, was received. The applicant was taken by surprise. As a result of the High Court decision, to effect the reinstatement of the first respondents the financial position of the applicant bank long after the retrenchment exercise was carried out in 1993. Had the applicant been made aware of the proceedings in the High Court, the applicant would have had the opportunity of being heard on the award by the minister which was being challenged in the High Court, .13 Dr. Tenga conceded that the decision of the High Court, the subject of this application, was based on an error of law. That is, that the High Court held that the decision of the minister was a nullity for non-.compliance with sections 39 (a) of the Industrial Court Act, 1967 and 6 (1) (g) of theecurity ofployment Act, 1964. i.e, the redundancy was not registered. Nonetheless, he forcefully contended that, s the decision of the High Court seriously and adversely affected the applicant, it was a serious breach of the principles of natural justice for the court not to afford the applicant the opportunity to be heard. This 1 Pr. Tenga further argued, was a material irregularity which the Court is called upon to rectify by invoking its powers of revision. In support of his submissions, the Court was referred to, ong others, the decisions in the cases of Halais f'ro-Chemie Industries VWella,A.G fi99,) TOL.hD 269 and Attorney General V. Maalis Kadau Aad 16 Others Z1799V ThR 69. On the other hand, with equal force, Professor Shivji, learned Counsel for the first respondents countered these submissions • The gravamon of his submission was that the applicant cannot be heard at this stage to complain of not having had the opportunity of being heard, for two reasons. Firstly, the applicant was neither an interested party nor a necessary party in the proceedings before the High Court, Secondly, as an interested party, the applicant who was aware of the proceedings before the Ninister and was also heard, did not apply to be joined as a party to the proceedings before the High Court. Failure to apply to be joined in the High Court proceedings in Misc Civil Cause No. 57 of 1996, was a manifestation of negligence on the part of the applicant, Professor Shivji further stated. For this reason, he went on, the applicant is to be held responsible for the consequences resulting from negligence. .11+ Lf - There is no gain-.saying that the applicant was aware of the proceedings before the minister because, as Dr. Tenga submitted, up to that stage, the aDplicant was involved. The bone of contention pertains to the proceedings in the High Court which the applicant maintains was not made aware of. If the applicant became aware of the proceedings in the High Court on 16.10.1998, when the letter from the first respondents' advocate was received, thexe is no basis upon which Professor Shivji insists that the applicant was aware cr should have been aware of the matter. In that situation, we are of the view that Professor Shivji's forceful contention is 1 with respect, without foundation. In the absence of any notice that proceedings regarding the Ninister's decision were being heard in the High Court, it would be expecting too much of the applicant to iow of such proceedings. Not being aware of the proceedings, we are unable to appreciate how the applicant could apply to be joined in the proceedings as urged by Professor Shivji. As no doubt, Professor Shivji is aware, it is common imowledge that one can apply to be joined in a matter of which he or she is aware of. In this case s the applicant was not aware of the proceedings, and therefore, there is, as it were no leg on which to peg Professor Chivji's contention. In the circumstance, the matter before the High Court was heard and determined without the applicant being heard The next question falling for consideration i. whether:thé applicant was an interested and necessary a'ty. •Profosor Shivji, as already observed, had vehemently submitted that the applicant was neither a necessary nor an interested party. he are respectfully, not in agreement with him on this submission. From the background of the matter, the case orig inated from the exercise of retrenching the first respondents. The effect of setting aside the decision of the Minister was the reinstatement .... -5-- of the first respondents in their employment with the applicant after the retrenchment exercise in 1993. The reinstatement of the respondents would, naturally, affect the applicant both financially and in terms of manpower placement. In this light, we are in agreement with Dr. Tenga, learned counsel, that the applicant was an interested and necessary party to the proceedings in High Court Misc, Civil Cause No. 57 of 1996, which gave rise to the decision, the subject matter in this application. As an interested and necessary party, we think, the applicant should have been given an .pportunity of being heard before the decision setting aside the minister's decision was made. 03 In yet another valiant attempt, Professor Shivji su'bmi±ted to the effect that rather than invoke the Court's revisional jurisdiction, an appeal could be preferred against the High Court decision in Misc. Civil Cause No, 57 of 1996, in respect of which the second respondent,, the Attorney General 1 had filed notice of appeal which was later withdrawn. With great respect, we think the learned Professor is not correct. It is beyond dispute that the Attorney General, a party to the proceedings was representing the first respondent, the Minister, and not the applicant, the Bank of Tanzania who 'was, as indicated earlier, not a party to the proceedings in the High Court. Not being a party to the proceedings, the applicant could not prefer an appeal against the order of the High Court, In the case of KAIAU (supra), the facts of which are closely srnilar to the instant case, we expressed the point that an appeal can only be lodged by any person who is a party to the case or proceedings and not any one else who is not a party to proceedings. There, inter alia 1 it was stated: hile it is true that rule 76 of the Court's Rules, 1979, provides for any person to appeal to this Court, it defies logic and common sense that the provision was meant -6- to allow any person at large even if he is not a party to the original case to take up an appeal to this Court as urged by Mr. Maira. In our considered opinion, the words 'any person' should be interpreted to mean any one of those involved in the original case and not otherwise ... ' In the instant case, as the applicant, the Bank of Tanzania, was not a party to the proceedings in the High Court, it is our view therefore, that the applicant had no right of appeal and cönsequently, could not A-- appeal against the High Curt decision of 21041998, as contended by Professor Shivji. Cóiversely, in Halais case (supra) to which reference was made by Dr. Tenga, the Court had occasion to enunciate the legal principle regarding the right of appeal to a party for proceedings. In that case 1 under legal proposition (iii), it was stated to the effect that a party may invoke the revisiOnal jursdictionbf the Curt in matters which are not appealable with or without leave. In this case, the situatior is, in our considered view 1 even more profound t the applicant not being I a party to the proceedings, had no right of appeal irrespective of whether the matter was appealable. The revisional process was therefor 1 the avenue available to the applicant to come to the Court. Having held that the applicant was a necessary and interested party, the crucial issue is the I&ffect on the High Court proceedings as a result of the failure to give the applicant on opportunity of being heard. We are in agreement with Dr. Tengas submission that failure to afford an opportunity to the applicant to be heard as a necessary party to the proceedings, seriously affected the proceedings. This is so because, it violates the basic fundamental principle of natural justice - Audi alteram partem. That is, before a decision affecting an individual is made, such .1,17 V 7- an individual shall be afforded an opportunity of being heard. The rationale behind this principle is not far to seek, that is, after hearing both the parties involved, then on balance, upon consideration of both sides, a fair decision is made either way. In a number of cases, this Court in apiying this pinciple has taken the view that failure to afford an ,opportunity of being heard to a necessary parts vitiates the proceedings. For instance, in the case of National Housing Corporation V Tanzania Shoe Company And .tDthe.rs, L99) ThR 251, the Attorney General was not sumnionei for hearing of the proceedings. This was in contravention of section 17A of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Cap, 360 ars, amandad. There we stated inter alia: Since the trial commenced and continued in the absence of a neessary party the court proceeded without authority and - that comstituted a major defect which went to the root of the trial thus rendering the proceedings null and void In this case 1 it is to be observed at once that the Attorney General was a necessary art,r 4o- the pnoceedings, by iirtue of the statutory pi'icns of the law cited. However, in the case before i the applioant was, as just observed, a necessary party not by a statutory provision of the law, but on account of the fact that the applicant was directly affected by the courts.decsion. . Though in slightly different situations, violation of the rules of natural justice and the need for notifying and hearing the parties before making the decision affecting them was also considered in the cases of Ndesamburo V Attorney General, L1992/ T.Lfl. 137 and Agr. Industries Ltd. V Attorney General D99.t7 T.LR 43 (CA). I - 8 On the whole therefore, upon consideration of the case, the circumstances of the case, we are in agreement with Dr. Tenga that the High Court proceeded with the hearing of the case without affording the applicant, a necessary party, the opportunity of being heard. This, we are satisfied, constituted a serious breac1 of a fundamental principle of natural justice - audi alteram partem. It affected the very root of the proceedings. In the event, and for the foregoing reasons, we allow the quash and set aside the decision f the High Court of 2.10.1998 in Misc. 4 Civil Cause No, 57 of 1996. Each party to bear its costs. DATED at DAR ES SALAAIVI this 25th day of April, 2001. L ,M MAKA4E JUSTICE OF PPPEAL A .S L 0RAMADHANI JUSTICE OF APPE AL D?0 LUBUVA JUSTICE OF_APPEAL I certify that this is a true copy of the original. ( A.G. il1WRIJA ) SENIOR D1U PJBGIAR