chama cha walimu tanzania vs the attorney general 2008 tzca 23 11 november 2008

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: RUTAKANGWA. J.A.. KIMARO. J.A.. And LUANDA. J.A.^ . CIVIL APPLICATION NO. 151 OF 2008 CHAMA CHA WALIMU TANZANIA............................. APPLICANT VERSUS THE ^TTORNEY GENERAL.......................................RESPONDENT (Application for Revision from the Proceedings and Ruling of the High Court of Tanzania (Labour Division) at Dar es salaam) fMandia. 3.^ Dated the 13th day of October, 2008 in Application No. 19 of 2008 I RULING OF THE COURT j 4th NOVEMBER, 2008 & 13™ NOVEMBER, 2008 RUTAKANGWA. J.A.: This is an application for revision. It is brought by Notice of i Motion under section 4(3) and (5) of the Appellate Jurisdiction Act, Cap |.141, henceforth the Act, and Rule 45 of the Tanzania Court of Appeal Rules, 1979, (hereinafter, the Rules). i The applicant, Chama cha Walimu Tanzania, or C.W.T., through Mr. Mabere Marando, and Mr. Gabriel Mnyele, learned advocates, is i seeking revision of the proceedings in Application No. 19 of 2008 in ! . ' the Labour Division of the High Court of Tanzania, henceforth the Labour £ourt. The application was instituted against it by the (respondent herein, the Attorney General of the Government of-the i ■ United Republic of Tanzania. Among the grounds cited in the notice of motion for moving the Court to exercise its revisional jurisdiction are that the Labour Court:- i. entertained the said application without jurisdiction; i ii.j entertained the application which was not properly before it; i|i. heard the application and granted the order prayed for therein without affording the applicant opportunity to present its case by way of a counter affidavit, thereby i denying it the right to be heard; and iv. relied on extraneous matters that were not on record in granting an injunction, and without specifying as to whether it was permanent or temporary. The respondent has vehemently opposed the application. Mr. 'Donald Chidowu, learned Principal State Attorney, appeared before us to resist the application. 2 To |facilitate a quick appreciation of the reasons behind this application, a brief background is necessary. The affidavital evidence on record and the proceedings before the Labour Court, provide this background. The applicant is a trade union, duly registered under the provisions of the Employment and Labour Relations Act, 2004 [No.6], i henceforth the Employment Act. It has about 156,923 members who are employed in the teaching profession nationwide. For quite some time the applicant, on behalf of its members, has locked horns with the government of the United Republic of Tanzania (the government hereinafter) over a number of issues concerning the welfare of its membeijs. On 4th February, 2008, the applicant declared a trade dispute with the government. On 18th August, 2008 it issued a strike notice cjf sixty (60) days. The said notice was issued pursuant to the mandatory requirements of section 26 (2) (d) of the Public Service (Negotiating Machinery) Act, 2003 (No. 19), henceforth Act No. 19 of 2003. The strike, according to the notice, was to start on 15th i Octobek 2008. 3 Subsequent to the said strike notice, the two parties together with othqr stakeholders, between 26th August, 2008 and 4th October, 2008, held four meetings with a view to settle the dispute by way of negotiations. The meetings did not fully resolve the impasse. On 9th October 2008, the M a jira newspaper published that the teachers !were to strike effective from 15th October, 2008. It was i quoting one Gratian Mukoba, the applicant's President, as the source of that information. Believing that the threatened strike was illegal and malicious, the Attorney General, on 10th October 2008, instituted the earlier mentioned application under a certificate of urgency. The application was by chamber summons and the respondent (applicant then) was seeking the following orders:- "1. That this Honourable Court be pleased to grant an o rd e r fo r i p e rm a n e n t in ju n ctio n , restraining the Respondent and their (sic) members from calling for and/ or participating in the plapned strike to be held on 15th October, 2008. 4 2. That this Honourable Court be pleased to give such further orders and directions in these proceedings as it shall deem appropriate. 3. Costs of this Application be paid by the Respondents." [Emphasis is ours]. The Labour Court was moved to grant these reliefs or orders under "Rule 94(1) (f) (11) of the Employment and Labour Relations Act No. 6 of 2004, rules 24 (11) (a); 24(11) (c), 55(1) and 55(2) of Labour Court Rules Government Notice No. 106 of 2007." The Labour Court issued a sum m ons fo r m e d ia tio n on 13th October, 2008. The mediation was to take place on the same day i at 12.00 boon. Our perusal of the Labour Court original record has t revealed that of the four top officials of the C.W.T. who were to be served with copies of the court summons and chambers summons, only two were served. These were Mwl. Ezekiel T. Oluoch [the Deputy Secretary General] and one Leonard Haule, who were served at 11.43 a.m. and 11.47 a.m. respectively. The President and Secretary!General of C.W.T. were not served. 5 Mediation, however, did not take place because the parties i i were not represented by officials with authority to mediate. The Registrar sent the court record to "Justice Mandia for directions" on the same day. Before Mandia, J., Mr. Senguji, learned Principal State Attorney, appeared for the Attorney General, being assisted by Ms Barke Sahel, learned Senior State Attorney. For the respondent C.W.T., Mr. Mnyele, learned advocate, entered appearance. What was supposed to be an appearance to receive directions turned out to be an appearance for the hearing of the application. Both counsel for the respondent herein submitted that the C.W.T. had called out a strike without complying fully with the provisions of s. 26(2) of Act No. 19 of 2003. They accordingly urged the learned Judge to grant, on the basis of the enabling provisions cited in the chamber summons, "th e ir a p p lica tio n fo r a tem p o rary ii in ju n ctio n ", while they continued with negotiations. We have to I observe in passing here that there was no application for a temporary injunction. Mr. Mnyele resisted the prayer. To him the prayer was being made prematurely as they were yet to file a counter - affidavit. He also submitted that the said court had no jurisdiction to entertain the application as it had been wrongly instituted under the provisions of i the Employment Act when the appropriate legislation was Act No. 19 of 2003. He accordingly pressed that the application be "throw n o u t fo r w a n t o f ju ris d ic tio n " or, in the alternative, before the sought injunction was granted, they be afforded opportunity to file a counter - affidavit as they had only been summoned for mediation. In his short rejoinder Mr. Senguji argued that the Court had exclusive jurisdiction over the matter under the enabling provisions cited and the respondent had no automatic right to file a counter­ affidavit. In his ruling, the learned judge held that the court was seized with jurisdiction to hear and determine the matter. He then i proceeded to consider the averments contained in the affidavit of one Mathias Kabunduguru, filed in support of the chamber summons, and i its varipus annextures. After considering the principles enunciated in the ca^e of A T T ILIO V. M BO W E (1969) HCD 284 on the grant of injunctions, he granted the injunction sought In the chamber summons. 7 Botjh counsel submitted at length either in support of or in opposition to each one of these four points of objection. Mr. Chidowu!adamantly argued that the application is incompetent and j should be struck out. He cited to us a number of decisions by this Court in j support of his position on each point. Mr. Mnyele was ! equally forceful and resourceful in urging us to find each point to be misconceived in law. He, too, referred us to a number of decisions by the Court to bolster his arguments. We shall begin our discussion with the tarst point of objection as listed above. As already shown in this ruling, the respondent went before the i Labour Cpurt seeking a permanent injunction to restrain the applicant and its members "from c a llin g fo r a n d /o r p a rtic ip a tin g in th e p la n n e d s trik e to b e h e ld on l! ? h O cto b er 2008". We have already Remonstrated how the learned High Court Judge heard the respondents on his application even before the applicant had filed its counter -j affidavit. Indeed, Mr. Senguji had pressed the High Court to grant the orders sought forthwith, because as he put it, "a co u n te r - a ffid a v it is n o t g ra n te d a u to m a tica lly ". We cannot restrain i ourselve$ from observing that his was an unfortunate proposition, as rule 24(4) of the Labour Court Rules grants an automatic right to a respondent to file "a n o tice o f o p p o sitio n , a co u n te r a ffid a v it o r i b o th " Within "fifte e n d ays from th e d a y on w h ich th e a p p lic a tio n is se rv e d on th e p a rty co n ce rn e d " This clear provjsiori of the law notwithstanding, the learned judge essentially heard the respondent on the merits and subsequently ruled as follows:-1 ............... "After a ll is said and done, this court finds that th e re h a s been m ade o u t a g o o d case b y th e a p p lic a n t in su p p o rt o f th e o rd e rs p ra y e d fo r in th e a p p lica tio n . The respondent CHAMA CHA WAUMU TANZANIA (C.W .T.) a re h e re b y re stra in e d from c a llin g fo r a n d /o r p a rtic ip a tin g in th e p la n n e d s trik e to be h e ld on 15th O ctober, 2008. In view o f the lim ited tim e available, the two parties to this m atter sh o u ld each m ake an im m ed iate ann ou n cem en t in th e m edia o f th e g ra n t o f th is in ju n c tio n ." [Em phasis is ours]. 10 The issue here is whether this injunction was an interlocutory one or had the effect of finally determining the application before the Labour Cc urt. In law, an injunction is said to be interlocutory when granted ir an interlocutory application and continues until a certain defined pciriod. It aims at preserving the s ta tu s quo until, say, the final determination of the main application or suit. According to BLACK'S L/WV DICTIONARY, 8™ edition, at page 800:- - "A tem porary injunction is issued before or during tria l to prevent an irreparable injury from accruing before the court has a chance to decide the case". The form which such an injunctive order takes is well explained in K ER R O N IN JU N C TIO N S, 6th edition, by J.M. Patterson, at page 648 as follows:- ".....Under the form er practice the form usually adopted was 1until the hearing o f the cause'. Under the present practice it is ’until judgm ent in this action ; or 'until further order' to show that the injunction is not to extend beyond the date when judgm ent is given , unless then continued, nor until li judgm ent if discharged previously by order o f the Court." Mr. Mnyele strenuously argued that the injunction order given i by the Labour Court on 13/10/2008 was an interlocutory one and so they could not appeal in view of the mandatory provisions of s. 5(2)(d) of the Act. However, he argued, they have found it proper to proceed by way of revision because their complaint is not against the injunction order. They are challenging the regularity of the proceedings in the Labour Court, which he said, were irregularly j conducted as the grounds in the notice of motion show. On his part, Mr. Chidowu, who was admittedly equivocal, argued that the respondent had moved the High Court to grant an injunction restraining the applicant and its members from calling for and/or participating in the planned strike. Since the application was granted, he stressed, the applicants, if aggrieved, ought to have appealed, He cited to us the decision of this Court in the case of J.H . KO M BA, ESQ ,EX-EM PLO YEE, E.A. CO M M U N ITY V THE R EG IO N AL R EVEN U E OFFCER, ARUSH A & TWO OTHERS, AR, 12 Civil Application No. 3 of 2002 (unreported), in support of his submissions. We have carefully considered all the arguments presented to us on the issue. We have dispassionately read the ruling of the Labour i • Court anlj the order extracted therefrom in the light of the order sought irj the chamber summons. We are of the firm view that the order issued was not interlocutory. It had the effect of conclusively j determin ng the application. The respondent was unreservedly granted what he was seeking in the chamber summons, as the applicant and its members were unequivocally restrained from "calling for and/or participating in the planned strike". There was no other issi^e remaining to be determined by the Labour Court. Both in form andj substance the issued injunction order carries the hallmarks of finalit^, as it was not granted pending any further action being taken in those proceedings. That is why no order to file a counter - affidavit Was given. The applicant, therefore, had an automatic right of appea to this Court under section 57 of the Labour Institutions Act. 200^. The grounds of complaint shown in the notice of motion, 13 in our settled view, all being points of law, would have been taken up as grounds of appeal. It s settled law that except under exceptional circumstances a party to proceedings in the High Court cannot invoke the revisional jurisdiction of this Court as an alternative to the appellate jurisdiction of the CjDurt, unless it is shown that the appellate process had been blocked by judicial process. See, for instance, H A LA IS PR O - CH EM IE V. W ELLA A .G . [1996] T.L.R. 269 (CA). No such circumstances have been shown here. We accordingly uphold this particular point of preliminary objection, and hold that the application for revision is incompetent. In view of our holding on the first point of objection, it is obvious that the second point does not hold water. Indeed, the two points would have fittingly been raised in the alternative. Regarding the othe •two points, we find no pressing need here to canvass them. However, in order to avoid a recurrence of the same mistake, we only wish to observe quickly that this Court had been properly moved under section 4(3) of the Act. See, for instance, this Court's decisions in O LM ESH U KI K ISA M B U V. CH RISTO PH ER 14 N A IN G 'O LA , Civil Revision No. 1 of 2000, AU G U STIN O L. M REM A V. R ., Cr. Appeal NO. 61 OF 1988, H A R JSH A . JIN A By his Attorney A JA R PATEL V. A B D U LR A ZA K JU SSA SU LEIM A N I, ZNZ Civil Application No. 2 of 2003 (all unreported). Normally, having ruled the application to be incompetent we would have proceeded to strike it out forthwith. However, because of i a fatal illegality which is patent on the face of the Labour Court's record, we shall refrain from following that path. We shall now show why. While urging us to strike out this application on the ground of wrong citation of the enabling provisions of the law, Mr. Chidowu correctly submitted that it is settled law that such citation and/or non-citation renders the relevant proceeding incompetent. He i fortified his argument by citing the decision of this Court in the case of ED W ARD BACHW A & THREE O TH ERS V. THE ATTO R N EY G EN ERAL & AN O TH ER, Civil Application No. 128 of 2008 (unreported). 15 ■ In, response to a question posed by the Court, Mr. Chidowu candidly admitted that this principle of law applies to all courts. His attention was then drawn to the facts that the'application before the Labour Court had been taken under "Rule 94(1) (f) (ii) of the Employment and Labour Relations Act No. 6 of 2004" as the main enabling provision and that the said Employment Act has no such provision. He admitted forthwith that that was wrong citation and given the stance of the Iciw, the Labour Court had been wrongly moved to issue the injunction. Indeed the- learned trial judge was aware of this irregularity. He, hoyvever, disregarded it and took it upon himself to rectify it without being moved, by holding in the ruling thus:- " ............... Section 94(1) (f) (ii) is the one granting this court powers to entertain injunctions. The applicant m ust have m eant section 94 (1) (f) (ii) and not rule 94(1) (f) 00 - .......... " 16 After so surmising, the learned trial judge determined the application by granting the orders sought in the chamber summons, as already shown. As rightly admitted by Mr. Chidowu and supported by both counsel for the applicant, non-citation and/or wrong citation of an [enabling provision render the proceeding incompetent. Decisions by' this Court in which this principle of law has been enunciated are now legendaijy. Most of them are cited in the case of EDW ARD BACHW A V. T H EA TTO TN EYG EN ER A L (supra). To that list may be added:. (i) FA B IA N A K O N A A Y V. M A TH IA S DAW ITE, C ivil Application No. 11 of2003( unreported) and (ii) H A R IS H J IN A V. U .A J. SU LEIM A N (supra). In H A R IS H JIN A 'S Case, where an inapplicable section was cited, i the Court categorically stated that citing a wholly inapplicable provision of the Taw, was a worse situation than citing a correct section but a wrong sub-section. As if providing, in anticipation, an answer to our current problem, the Court said:- 17 ..... it m ay w ell have been a typographical error as pleaded by Mr. Patel, but if that was so, he ought to have sought to correct the error before the.......... m atter came for hearing" f It is the duty of a party and not that of the court to correct his t IE pleading and/or documents relied on. If it were otherwise we would not avoid being reproached with putting aside our mantle of impartiality. It may also be worthwhile pointing out here that the gravity of the error in omitting either to cite the enabling provision or citing a wrong one was succinctly stated by this Court in the case of CHIN A H EN AN IN TER N ATIO N AL CO -O PERATIO N G RO U P V. SALVAN D K .A . RW EG ASIRA, Civil Application No. 22 of 2005 (unreported)i The Court said:- .Here the omission in citing the proper provision o f the rule relating to a reference and worse s till the error in citing a wrong and inapplicable rule in support o f the application is not in our view, a technicality 18 falling within the scope and purview o f A rticle 107A(2) (e) o f the Constitution. I t is a m a tte r w hich g o es to th e ve ry ro o t o f th e m atte r. We re je c t (th e ) co n te n tio n th a t th e e rro r w as te ch n ic a l' [Em phasis is ours]. That be ng the clear position of the law, the learned trial judge ought to have struck out the application before him. But would the respondent's application before the Labour Court have been saved by citing section 94(1) (f) (ii) of the Employment Act a s ; the enabling provision? Our considered answer to this pertinent question, after studying the entire Act, is in the negative. i i Let us first look at this provision itself. It provides as follows: , "94.-(lJ Subject to the Constitution o f the United Republic o f Tanzania, 1977, the Labour Court sh all have exclusive jurisdiction over the application, interpretation and implementation o f the provisions o f this A ct and to decide- | (a)~ appeals from the decisions o f Registrar made under Part IV; (b) review s and revisions o f - 19 (i) arbitrator's awards made under this Part; (ii) decisions o f the Essential Services Committee made under Part VI; (c) review s o f decisions, codes, guidelines, or regulations made by the M inister under this Act; (d) com plaints, other than those that are to be decided by arbitration under the provisions o f this Act; (e) any dispute reserved for decision by the Labour Court under this Act; and (f) applications including - (i) a declaratory order in respect o f any provision o f this Act, or (ii) an injunction." it is clear from its plain language that the section was never intended to be an enabling provision for instituting any proceeding before the Labour Court. Falling under Part VII Sub - Part C, which is headed "A d ju d ica tio n " it only spells out the powers of the Laboun Court. All the same, in our considered opinion, the Labour i Court dannot exercise these wide powers randomly or as and when it wishes Being judicial powers, it can only exercise them when 20 properly moved and/or when the person wanting it to exercise them i I has a rjght conferred on him to do so either under this Employment Act itsqlf or under any other written law. But, in our settled view, iI that rigjht does not emanate from section 94(1) (f) (ii) as we shall presently demonstrate, by citing a few examples. Itj cannot be seriously contended that any person feeling [ aggrieved by a decision of the Registrar under Part IV can appeal to the Labour Court on the basis of S. 94(1) (a). The right of appeal is created or granted by section 57. This section reads as follows:- "Every person aggrieved by a decision o f the Registrar made under this Part m ay appeal to the Labour Court against that decision . " milarly, a person wishing the Labour Court to review or revise an arbitrator's award made under Part VIII, cannot move that court under s. 94(1) (b)(i). He or she has to proceed under s. 91(1). Also the rig ht to refer a complaint to the Labour Court is granted by s. 86(7) fb) and not s. 94(1) (d). Again applications for declaratory orders are covered by s. 85(4) and (5), among others, and not s. 94(1) (F) (i), e.t.c. 21 On the issue of injunctions generally, we find that indeed the Labour Court has jurisdiction to grant them. Regarding injunctions to restrain a strike, it is also our finding that the said court has been given such jurisdiction under the Employment Act only- All the same, such jurisdiction is subject to two conditions precedent. These are that t ie strike must be illegal and it [Court] must be properly moved j undeil the relevant enabling provisions of the said Act. From our objective reading of this Act, we are of the settled mind that the only relevant provision is section 84(l)(a). This provision reads as follows:- "Where a strike or lock out is not in com pliance with this Act, or a trade union or em ployer or em ployers' association engages in prohibited conduct, the Labour Court sh all have exclusive jurisdiction - (a) to issue an injunction to restrain any person from - (i) participating in an unlaw ful strike or lock out; j ( i) engaging in any prohibited conduct;.............." 22 So assuming, without deciding here, that the provisions of the Employment Act cover strikes declared under s. 26(2) of the Act No. 19 of 2003, then one seeking an injunction to restrain such a strike ought to proceed under s. 84(l)(a). It goes without saying, i therefore, that the learned trial judge had been wrongly moved and i _ erred in law in entertaining and determining Application No. 19 of 2008 which was not competently before him. It will then be accepted without further elaboration that the proceedings before i Mandi^ J. were a nullity. Since the proceedings were a nullity even the order made therein including the court's ruling and final order were a nullity. Fortunately, counsel for both parties in these proceedings are of the same firm view. i I ■ Because the proceedings before the Labour Court were a nullity; that's why we felt constrained not to strike out this application. We did so in order to remain seized with the Labour Court's record and so be enabled to intervene su o m otu to remedy I the situation. This Court recently thus acted, in almost similar i circumstances, in the case of TANZANIA H EA R T IN ST IT U T E V. 23 As the learned trial judge was enjoined by law to strike out the respondent's incompetent application and did not do so, it now fails within jjur jurisdiction to do what he failed to do. This will not be the first time the Court is doing so. It has thus intervened in the past. It accordingly invoked its revisions! powers under section 4(2) of the Act, to quash the proceedings in the High Court and set aside all the orders made therein. i In the case of A N TO N Y J. TESHA V. A N IT A TESHA, Civil i Appeal l\lo. 10 of 2003 (unreported), during the hearing of the appeal it was discovered that the High Court had issued leave to appeal when it ihad beerv wrongly moved. The Court held that-the High Court had erred in not striking out the application. It accordingly struck out the application as well as the notice of appeal. The Court did the same in identical circumstances of wrong citation in the case of A LO Y C E M SELE V. THE CO N SO LID ATED H O LD IN G CO RPO RATIO N , Civil Appeal NO. 11 OF 2002 (unreported). In this particular case we are strictly enjoined by law to do what the ilearned trial judge in the Labour Court failed to do. Failure to do so would be tantamount to perpetuating illegalities, and in particular the injunction order which is admittedly a nullity. Acting under s. 4(3) of the Act we hereby revise the incompetent proceedings in the Labour Court. The same as well as all the orders 25 ^eluding the impugned injunction granted therein, are hereby quashed and accordingly set aside. We make no order for costs. DAJED at DAR E~S SALAAM this 11th day of November,2008. E.M.K. RUTAKANGWA JUSTICE OF APPEAL N.P. KIMARO JUSTICE OF APPEAL B. M. LUANDA JUSTICE OF APPEAL I certify (that this is true copy of the original. 26