20010425 TZCA Dar es Salaam

0 DJ TEd CCUT OF APPEAL OF TANZLIA 1L) (cOid'. J, I TAdi-dtiI, JO., And LUBUVA, JA0) CIVIL UPL1CATIOM NO 74 (jP 1 996 In the katter of an Intended Appeal t BANK (iF LL.dNIA. , , AND 30 flSP0NDII'T9 2. TIu: AIiNii CIHiLBAL (Application for Pevis ion from the decision of the HiRL dourt of Tanzania at Dar es galaam) TJTN dated the 2nd day of October, 1 99 8 in 2.. RULIG CF TEd COUPT U1 1 0: This is an application moving the Court to exercise its revisional jurisdiction to revise the decision is High Court Misc. Application - No. 57 of 1996. At the coimenceaent of the hearing o,1 the application, a prelisinary objection was raised by Professor Shivji, learned counsel for the first respoideits, 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 tue case was setout fully. We need not repeat it Lore. However, in order to facilitate easy arpreciation of the sequence of events, e will rroiace this ruling with a surmary of the salient features of the uatter, .. ./2 /1 - 2 - The case arises from an induetrial disoute 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 eomplaint 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 Minister's decision. This is the decision which it is sought to be revised. The main ground t: application as set out in the notice of motion is that the kigh Court in determining Misc. Civil Cause No. 57 of 1996, resulting in the setting aside of the decision of the minister, the applicant was not given an opportunity of being heard. This, Dr. Tenga, learned counsel for the applicant claimed., was a serious violation of the principles of nature.l justice. 1. 0or this reason, he further contended, it is an appropriate case in which to invoke the revis tonal powers of the Court. In elaboration, Dr. 2enga briefly outlined the case for the applicant as follows , From the time the trade dispute was declared between the applicant and he first resoondonts until the time the High Court decision was delivered, the apnlicart 'Jas involved throughout. Thereafter, the applicant was not made aware of the proceedings in the High Court until 16.1O.199, when a letter from the advocate for the first respondents, seeking the reinstatement of the first respondents, was received. The aprlicant was taken by surprise. As a result of the High Court decision, to efisct the reinstatement of the first respondents -eh.-1 c,-f4kLZ 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 kigh Court, .../3 +7/' DUoTTOU WOJI •1nGOJ uonbuoo .xoj o tsuocT.siox PTOLI oq o; T Tt •p .xossolo.xd IOTTCI @L1.4 TO qXed OUq. UO Ui1)U 0 T1Ot TTUW '9661. jo o ti -t ut rtp0000xd ino q2-ull oq; ui puioç oq O I tCIe O. OJnTT ';JflO) $tp 0t JOJ0C upo33o.xcI oq. o ix1 potrtoC oq o; R E ddu .ou pip Lp1rzu oi si pui x rturt ovq 2JOJO tpe000Ic1 ou o o.xr ot auotTciu u; J4icI p;irt u '. -Epu000' .ino oua oiojoq Up0000Jc uu q UT R;xd £cu ' .xou pout u .xot;iou iicIc o; 'ii uoo,x oi; JOJ 'poq trtoq ,o Ruytunu.xodo 04 pt 2UIA4 1.ou Jo rtdwoo o4 oSs sçt4 4V p.rooLT oq 4OUID7eo qjreoTjddle 0u uoisituqnG 07tq JO D!eJ2 • uoi uqr ouoa po,o.urnoo squepuodsea asxt; ou. .xo; ioouno P3UJT 'TCA - CLIC JOSSOO.Id 0OJO TOrD0 T4qt1.\ 'pUUU XO4O ZLfl. U() 69 /Z667 s,xeto 91. ptiy nep •, TIou couxou p 69 °:ii' /6jj T7c en eH jo sesto otia trt suoiGtoap O4D ' t3tfl.O }uow &o1 pOJJO:cOJ .XflO) 04 I4 3 0 oddlflG 1.11 ;o a.Iej$od t rtotrc Iq toax oq uodn pertiuo t rno ou; ot x - no.xj.i Io;2w 91 'por' JOTZTu. ue.- xç çu pxou oq on fZj.Txmqiodclo oq txoi1L ouu. po;;e oq qou ;.xnoo aui JOJ oat;nC InU JO 90TCIT9UTXd 3U JO U3OIO SitOiJOG Ii 1 '.UrDiTdd 3t pouoaj T9JOAP2 pure [nOix09 rflOç, 2jT3 aqq jo uoistoep a papuau.uoo rTTn.Ta3J0T 04 'SS0T.0UOj P3J2OT0J .0U ETO 'T +7961, q.uawiociui ;o ytJn3Ga4. JO () (1.) 9 Pu (96L aql upnO TtJsflpUI aUg. Jo (0) SUOT2O3 G3UT[ciUJOOtX0U JOJ et J39TUTW 3U JO UOtGi3O Otfl. 4 e4q 1Y134 2Jfl0 0 45tp aqu uu 111 T 1. T qei4J ive- TO JOJJ3 ire UO pesic sre 'uo t1kIu2 o ooqrts am. JflO U1H 342 JO U013133P 3U. a4 pOP3Uo3 uxo -act — . — 7 - There is no gain..-saying that the applicant was aware of the proceedings before the minister because, as Dr0 Tenga submitted 1 up to that stage, the applicant 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 apl:iicant became aware of the proceedings in thern High Court on 16.10.1995, when the letter from the first respondents advocate was received, there is no basis upon which Professo' Shivji insists that the aprlicnnt was aware or should have been aware of the matter. In that sittiorL, we are of the view that Professor Shivji)s forceful, contention is, with respect, without founclation 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 know 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 knowledge that one can apply to be joined - in a matter of which he or she is aware of. In this case, the applicant was not aware of the proceedings, and therefore, there is, as it were, no leg on which to peg Professor Zhivji'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 is whether the applicant was an interested and necessary party.. Professor hivji, as already observed, had vehemently submitted that the applicant was neither a necessary nor an interested party. e are respectfully, not in agreement with him on this submission. From the background of the matter, the case originated from the exercise of' retrenching the first respondents. The effect of setting aside the decision of the Minister was the reinstatement , e 4 /7 -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 Iisc. 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. - In yet another valiant attempt, Professor Shivji submitted to the effec't that rather than invoke the Court's revisional jurisdiction, an 1. appeal could be preferred against the High Court decision in Misc. Civil Cause No, 57 of 1996 3 in respect of which the second respondent,, the Attorney General, 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 KDAU (supra), the facts of which are closely similar 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, it was stated: While it is true that rule 76 of the Court 'a Rules, 1979, provides for any person to appeal to this Court, it defies logic.and common sense that the provision was meant ./6 / 1 /. -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 consequentlyi could not appeal against the High Court decision of 210.1998, as contended by Prdfessor Shivji. Conversely, 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, under legal proposition (iii), it was stated to the effect that a party may invoke the revis ional jurisdiction of the C..'urt in matters which are not appealable with or without leave. In this case, the situation is, in our considered view, even more profound, the applicant not being a party to the proceedings, had no right of appeal irrespective of whether the matter was appealable. The revisional process was therefore, 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 Qffect on the High Court proceedings as a result of the failure to give the applicant an opportunity of being heard. We are in agreement with Dr. Tenga's 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 fundsmental principle of natural justice - Audi alteram partem. That is, before a decision affecting an individual is made, such 0 .,/7 1- u.xo\q A GtXflpU] prn • (vc) ir /667 rejaueo Lct- IL 667 'IC1EU3D ctuoy A ;o G'O cq. Ut paxaptsuoo oT GUM WL1 2irt.3e;;c uoivioap• aq4 D urr -, pw axo;q t.nd aq4 2 uTjaoq UU uti2jtou xo; peeu aqq pu-t GT ThXt4UU Jo T' a T44 JO UOT.UIOTA 'Guo-trt -cs uxe;;-Ep A-E:tTG Ut qnoi uotgtop srnoo et iZq pe;oe;;i T°'TP TI t41 OUJ OU. JO q uit000v UO ;nq t Mlfl Eì3 jo uotGtAo.xcf Lio ,4na -e4s r Aq qou JxUd aoou u 'peA.xGqo qgnC GU 'SUM midft Ut .XOA M0H • P 4T° 'I ° xon.cqs o 9flI Aq U3oo kUd teu t~ Slam I'cIeo Rau jo 4q V aq4 ouo peAxGqo oq o. st PT0A pU2 IT' 9 TP 001 d aqq 2UIUX STt T-eTjl aqq jo 4001 oqq o. ;uoi OT4M DOJp IOCUW U Ofl.tSUOO 4vqq pUU c - ZO4flU .flOtM pp3eDo.xc1 4anoo qq. Aq.rod xou o aou a sqe eqq U- PU!4UO3 pU'i P O Ou G MWOO TU7a4 G q4 :UU ,XOU p;'a.s e popueuiU ec 09c & U1Ut7 (oTAozj noes ptrsqu a pToov TtU) =oj:aa marI otlq ;c (?)- vLi uotos ;o uoivat.t.xuoo Ut s'tp UtpooO1d Ot Ut joS puons' .otx xu xo;j aqq 'tAz nr, /66i.7 'zucr ptriy JmdtuoO eou , uoxod.xo 5txtsnci.i Tuot'N jo eSo aq4 UT I UUGUT JO •aUtpeo.xct GT44 GOUttA £nxi nseoou oq p.ret 2xrraq JO tIU pXO;JU O. aIfltUI 1U metA oq4 UO)U sUt o1dtout.td t1Z1thi Ut q .znoD sçtq t SOGUO jo xqwnu U UI '' ia uiqT a °P ST tXOt SlOOP .XTC, toq jo uot UJOpILxoo uoc[n 'oouUUq uc uq; 'POATOAUI SaT I J-?Cl D 2trt1Uo si 41ae5 oq. rtj ou o trxd iu4 pUtGq GU s pr-20tj S Uleq T O j,2T LMqjOCLrTO Ut' popxo; q IT'T WT-TP'T Ut' - , - / On the whole thexefore, 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 breach 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 peal-, quash and set aside the decision ^f the High Court of 2.10.1998 in Misc. Civil Cause No 57 of 1996, ach party to bear its costs. DALD at DAR ES SALP-Ai 1 this 1 25th day of £pril, 2001. L.M.MAKANE JUSTICE OF APPEAL A .S .L .PAMADHANI JUbT10E OF APPLAL D. LUBUIJA JUbTICE OF APPEAL I certify that this is a true copy of the original. ( A • G. 1IJA ) SiNICR DEPUTY GITAP