said a marinda others vs minister for labour and youth development others 2003 tzhc 93 10 october 2003

IN THE HIGH CO UR T OF TANZANIA (DAR ES SALAAM M A IN REGISTRY)

AT DAR ES SALAAM MISC. CIVIL CAUSE NO. 67 OF 2002 In the matter of an application for the Orders of Certiorari and Mandamus AND In the matter of the decision of the Minister for Labour and Youth Development in Inquiry No.3 of 1995 under the Industrial Court Act

B E TW E EN SAID A. M A R I N D A & 30 . O T H E R S ........................... AP PLIC ANTS AND 1. THE M IN IST E R FOR LABO UR ] AND Y O U T H D E V E L O P M E N T j 2. THE A T T O R N E Y G EN ER A L j ............... RESPO ND ENTS J 3. B A N K OF TAN Z A N IA j

RULING BUBE SHL J.: The applicants have filed this application for the following orders:- - That this H onourable Court be pleased to issue the orders o f certiorari and m andam us so as to call for and quash the decision o f the M inister dated 2/5/1996 and that delivered by the Industrial Court o f T anzania on 2/8/96 in Trade Inquiry N o .3/1995. The application w as supported by joint affidavit o f Samson M agoti and Khalfan Ju m a as well as the statement. The applicants are represented by M .A. Ismail and Co. A dvocates. W hile the 1st and 2nd R esp o n d en ts are represented by the Attorney General, the 3rd R esp on den ts are advocated upon by L aw Associates & Co. Advocates. It is pertinent to observe that pursuant to that application for prerogative orders the advocate for the 3rd Respondent, did on 12/9/2002, raise prelim inary points o f objection that the same is hopelessly time barred; it being a public law rem edy cannot issue against the 3rd R esp on d en t bank that the depo nents affidavit filed in support thereto have no authority from all 30 ' applicants. This C ourt had ordered that the 3rd R espondent file his submissions in support o f the prelim inary objections raised. As o f 29/10/2002 the 3 rd R esp o n d en ts had n o t complied with the order. W e could only assume that the objections raised had been abandoned without notice to the Court or

the applicants. W e therefore go straight to the applicants application. The applicants are form er employees o f Bank o f Tanzania (hereafter to be cited as B O T ) who w ere employed at different times and held various posts at different branches o f the said BO T. The applicants received letters o f retrenchment on 31/10/93 issued purportedly under V oluntary A greem ent dated 28/9/1993 between B O T and O T T U B ranches on b e h a lf o f the applicants. It is the applicants contention that the O T T U Branch leaders who signed the Voluntary A greem ent had no m andate from all the applicants. They argue in short that since the V oluntary A greem ent had no mandate from all the applicants tlirough the W orkers Committee, the purported Voluntary A greem ent lacked validity. They argue further that even if the Voluntary Agreem ent 19/93 was valid yet it was not operative b ecau se the 3rd R espondent bank flouted the terms and " conditions contained therein which was also not registered as required by law. The applicants com plain that not only w ere the terminal payments less but were m ad e on discrim inatory grounds. The applicants have further complained that they did not apply to be declared redundant. The applicants are challenging decision by the M inister for Labour and Youth D evelopm ent which is dated 29/5/96 and successfully challenged vide High Court Misc. Civil

Cause 57/96 only that the 3rd Respondent w as not a party to the proceeding's then N o w the 3 rd R espondent has b een formally joined. The grounds for objecting to the M inisters decision are tw o fold. 'That w here there is m ore than one branch o f a Trade Union in a w orking place, all the branches must be involved in the negotiation leading to an agreement otherwise the subsequent redundancy based on the said agreem ent will be invalid. The applicants Counsel has referred this Court to the case of T a n z a n ia E lim u S u p p lie s Vs O T T U - M isc. Civil A p p e a l 12 of 1997 [u n re p o rte d ] to support their argument. The applicants contend that the end result of such an invalid agreement is that it is a nullity as it flies in the face o f the provision as stipulated in Section 6 (l)(g) of th e S e c u rity of E m p lo y m e n t A ct. The applicants have further argued that there is no evidence that the m anagem ent o f the B O T was involved to negotiate the V o lu n ta r y A g r e e m e n t No. 19 of 1993. The second ground hinges on the allegation that this V oluntary A greem ent No. 19/93 had n o t been registered when the M inister m ade his decision relying on the same. T he applicants have referred this Court to the cases of: - M ich a el K a p e t a on B e h a lf of 684 O th e rs Vs. T a n z a n ia Shoe C o m p a n y L td . an d A n o th e r ; and -

Civil C a s e No. 48/1994 D a r es S alaam R e g is try - decision by L a te K y a n d o J. w here..the effects o f non registration o f such an agreement w ere am ply discussed. They argue that as A greem ent No. 19/93 w as not registered, the third R espondent ought to have applied the Voluntary Agreement No. 2/91 instead. The third ground raised is that apart from the V o lu n ta ry A g r e e m e n t No. 19/93 being invalid, on the reasons explained herein above, even the Labour Com m issioners R eport, the first requirem ent before asking for registration in the Industrial Court had not been obtained in terms o f Section 39(2) o f th e P e r m a n e n t L a b o u r T r i b u n a l A ct, as amended. That provision, they contend, sets out the particulars which ought to be contained in the said report. The applicants C ounsel has submitted that the end effect of non participation, lack of the Labour C om m issioners5 Report and non registration o f the A greem en t 19/93 with the Industrial Court is to m ake the A greem ent invalid and inoperative hence the application for prerogative orders. That the om issions raised above ousts the jurisdiction and pow ers n ot only of the M an ag em en t but also o f the M inister for Labour and Youth , D evelopm ent; that the consultation that w as done is a different type o f consultation as envisaged by Section 6(1 )(g) of the S e c u

rity of E m p lo y m e n t Act. C ounsel referred this Court to the Case of: Ila m isi A lly R u h a n d o & 115 O t h e r s Vs. T a n z a n ia Z a m b ia R a ilw a y A u th o r it y - Civil A p p e a l N o .l of 1986 w hich decision discussed consultation within the meaning o f Section S 6 ( l) ( g ) of S e c u rity of E m p l o y m e n t Act. It w a s the applicants submission that in the light o f the above arguments, the M in ister for Labour lacked jurisdiction to entertain the dispute and his decision o f 29/5/1996 was based on the w ron g premises, viz, the Voluntary A g reem en t was invalid for w an t o f registration and w as obtained contrary to the conditions stipulated under S 39 o f th e I n d u s tr ia l C o u rt Act. That the M in ister has no po w ers to deal with m atters concerning redundancy - see the C ase o f N jo m b e /L u d c w a /M a k e te C o - o p e r a tiv e U nion L td. Vs. M in is te r fo r L a b o u r an d Y o u th D e v e lo p m e n t — M isc. Civil C a u s e No. 8 of 1994 In consequence therefore the applicants prayed for their application to be granted. The H onourable A ttorney General represented both the l sl and 2,ld R esp o n d en ts started o ff by the submission that the tw o deponents have no locus standi to sw ear the affidavit on b e h a lf o f the 30 other applicants. The learn ed State Attorney referred this Court to the

provisions o f Order 1 Rule 8 o f the Civil Procedure Code. He termed the application as bad in law for lack o f a proper affidavit in support o f it. The representative o f the A ttorney General has submitted further that before the 1993 Agreement came into force, there existed Voluntary Agreem ent N o .2 o f 1991. That during the p en dency o f that voluntary agreement, parties had to enter into a joint agreem ent as to how to effect the redundancy exercise in the 3rd R esp o n d en t’s w o rk force. They argue that thorough consultations took place betw een B O T and W orkers Committee, in terms o f the provisions o f S 6 (l)(g ) which consultations culminated into the Joint A g reem en t o f 1993. That the M inister w as satisfied that consultations b etw een B O T and the w orkers had taken place, in terms o f the requirements o f S 6. On the issue o f registration, the learned State Attorney holds the view that the 1993 agreement was not a voluntary agreement but a joint agreement to im plem ent the provisions o f the 1991 Vo 1untar)' Agreement hence the need to register it did not arise. That, it is only a voluntary agreement which ought to be registered and not a jo in t agreem ent, added the learned State Attorney. On non participation/consultation o f the w orkers, the learned State Attorney stated that all the workers in their B O T / O T T U branches had been

consulted and th e ir branch chairpersons had signed the Joint Agreement. He p rayed for the application for prerogative orders of mandamus and certiorari to be dismissed. B O T the 3rd R espondent was represented by the firm o f L/>w Associates A d vo cates. In their elaborate submissions Dr. Tenga has stated that the Inquiry Court w as satisfied that consultations had taken place b e f o r e ' reaching that agreement, and that the M inister was equally satisfied and he signed it as an award. Dr. Tenga has strongly argued that what the Minister w as requested to do was to enquire into the dispute referred to him through - OTTU. That the complaints regarding the validity or enforceability o f the V oluntary Agreement w ere never at issue. That it would be contrary to principles o f judicial review if this Court will be moved to quash pro ceedin gs of an inferior Court on grounds o f issues which did not form part o f proceedings, argued Dr. Tenga. H e added that certiorari cannot lie w h ere the provisions o f S 6(l)g ) o f Security o f Employm ent Act were com plied with. On registration Dr. Tenga stated that the redundancy agreement o f 25/9/93 is not registrable as it arose out o f the registered M k a ta b a wa H iari N o .2 o f 1991 w here Item 7 o f the same deals with issue o f redundancy. Dr. Tenga w as o f the firm view that in the circum stances o f this case, the

order o f certiorari will not lie. R eg ard in g the order o f m andam us, Dr. Tenga was o f the same opinion that it- cannot lie because the application by the applicants have to survive the follow ing conditions, namely: - demand for perform ance must p reced e the application; - that the application must be m ade in good faith, and - that there is no other legal remedy. He prayed for the order o f m andam us prayed for to be equally dismissed with costs. It is not in dispute that prior to the 1993 agreem ent there was-in existence a V oluntary A greem ent No. 2/91 which w as registered by the Industrial Court on 16/9/1991. It is also not in dispute that the applicants found that V oluntary A greem ent 2/91 wanting in certain aspects and including non com pliance with the FILO rule, and a m achinery set in motion to have another agreem ent signed instead. There is also evidence or record that pursuant to the applicants complaints Trade Dispute N o .3 o f 1995 w as instituted. The applicants w ere issued with letters o f retrenchment on 31/10/1.993 purportedly under a Joint Agreem ent m ade on 28/9/1993. The Attorney G en eral’s representative has submitted with much force that the above agreem ent arose out o f Voluntary A greem ent No. 2/1991 hence there was no need to register it. That that the Voluntary Agreement No. 19/93 was not registered is not in dispute. But if it w

as indeed a joint agreement as contended by the N angela w hy have the parties not agreed to have those terms registered to date? It is also not in dispute that the M inisters decision delivered on 29/5/1996 w as successfully challenged by this Court, vide Civil Cause 57/96, only that the 3rd R espondent had not been joined to those proceedings. Was the provisions o f Section 6(1 )(g) o f the Security o f Employment complied with before that decision was handed down? The applicants have contended that the procedure was flawed in that not all branches o f the Trade U n io n had been involved in the negotiations hence the Voluntary Agreem ent 19/1993 and the subsequent redundancy based on the same w as invalid. The respondents stand is that all the w orkers had been consulted by the Employer throughout the B O T branches and had agreed to implement the modalities o f the redundancy exercise and this therefore led to the Joint Agreement. The resp on dents concur with the M inisters decision. The elaborate decision by this Court handed dow n on 2/10/98 w as to the effect that even a joint agreem ent/collective agreem ent has to be registered before a redundancy exercise could be earn ed out under it. The submissions made by the A ttorney General that this w as none other but a joint agreement requiring no registration are well answ ered by that judgm ent - see pages 18 and 19. W

e find therefore that the voluntary agreem ent or the Joint Agreement as Mr. N an g ela calls it was a nullity for lacking registration. The M inister’s decision w as based on naught, and w e stand by that decision and see no reaso n to depart from it. A nd if that w as not enough the R epo rt by the Labour Com missioner in terms o f S 39(2) o f P erm anent Labour Tribunal A ct, 1967 as amended had not been obtained and submitted to the M inister w h a t appears from the record is a n n e x l u r e CK \ a letter written by the C om m issioner for Labour dated 27/1/1995 notifying the M inister o f the intended enquiry and the subsequent rep o rt to him (Minister) in terms o f S 9B(1) o f Act 41/67. W e cannot therefore agree with both R espondents assertion that the M inister’s decision w as proper. Can the order for certiorari, lie in the: m atter at hand? W e say yes because there w as clearly an illegality of procedurr as observed above - see the Case of: SANA I M R U M B E and AN O TH E R

VERSUS BRUHETIE CHACHA [1990] TLR 54. w h ere His Lordship Ram adhani, JA laid down considerations to be taken into account w h en considering w hether or not to issue the orders o f certiorari. Accordingly, w e quash the M inister’s decision for being a nullity ^ and quash both the M in ister’s decision and the award of the Industrial Court. A.G. BUBES1II

JUD GE & K.K. OR] YO

JUDGE N.1V1,^lLWAIKUG ILL

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