ezekiel hosea vs tanzania zambia railway authority 2023 tzhcld 1176 9 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 353 OF 2022 BETWEEN EZEKIEL HOSEA............................................................................ APPLICANT VERSUS TANZANIA ZAMBIA RAILWAY AUTHORITY.................................. RESPONDENT JUDGEMENT Date of last order:27/02/2023 Date of Judgement: 09/03/2023 MLYAMBINA J. This Judgement is on the similar issue addressed extensively by this Court on the same date in the case of Benjamin T. Mangula and 20 Others v. TAZARA, Revision No. 418 of 2022, High Court of Tanzania Labour Division at Dar es Salaam (unreported). It is on; whether TAZARA is a private or public entity. The Judgement takes note that such serious issue has attracted two distinct schools of thought by this Court. There is a dilemma among legal practitioners as to; whether TAZARA falls within the definition ofpublic organs. The Applicant in this case, as it was in Benjamin Mangula's case (supra) was of the view that TAZARA is a private entity. i On the other hand, the Respondent herein maintains that TAZARA is a public entity. Briefly, this is an application for revision of the Arbitral Order of the Commission of Mediation and Arbitration (hereinafter referred to as CMA) made on 28/11/2022 before Hon. Mollel B.L. in Labour Dispute No. CMA/DSM/ILA/496/2021. The CMA dismissed the Applicants application on the ground that it lacked jurisdiction and the Applicants were legally required to seek available statutory resolution machinery under the Public Service Act Cap 298 based on the fact that the Applicants Authority is a public company hence should comply with the Public Service Act (supra) dispute resolution mechanism. The Applicants were represented by Mr. Paschal Temba, Personal Representative. The Respondent were represented by learned State Attorney Rose Kashamba and Mercy Chimtawi. The key issue is: whether the Commission for Mediation and Arbitration (CMA) had Jurisdiction to entertain the matter before it on the ground that TAZAPA is a Public organ without regard to when the cause of action arose. Briefly, the Applicant's Counsel maintained that TAZARA is not a public entity for various reasons: First, TAZARA was not established by an Act of Parliament rather an Agreement between United Republic of Tanzania and 2 Republic of Zambia. Second, operations and management by the Council and board of TAZARA is autonomous and therefore not subject to question by the Governments. Third, recruitment and termination is done by the Board and not the public officers. Fourth, mobility of workers of TAZARA. They can work in both States. Their termination does not require endorsement of a public officer. Five, TAZARA workers are excluded under section 3 (ii) of the Public Service Act (supra). Six, Section 32A of the Public Service Act (supra) cannot apply retrospectively. On the nature of the Respondent (TAZARA), Mr. Paschal Temba for the Applicant was of view that; it is not a public organ in nature. Thus, since its establishment, it was a business agreement between the United Republic of Tanzania and the Republic of Zambia. It was not established by the Act of Parliament. The last amendment was signed on 29/09/1993. The United Republic of Tanzania passed an Act domesticating the agreement dated 29th September, 1993. The preamble to the Tanzania Zambia Railway Authority Act, Cap 143read: An Act to give effect to the agreement relating to the Tanzania Railway made between the Government of the United Republic of Tanzania and the Government of Republic of Zambia dated 29/09/1993 to provide for the continued existence of the Tanzania Zambia Railway Authority. The Council and the Board to provide for and 3 regulate the manner in which the Tanzania Zambia Railway Authority shall be operated to replace the Tanzania - Zambia Railway Act,1975 and to provide for matters connected with or incidental to the foregoing. In view of Mr. Paschal Temba, taking the preamble as it is, one will find that TAZARA was not established by the Act of Parliament because the Parliament has no leg to stand in the absence of the agreement. The TAZARA Act was enacted in Tanzania and Zambia for the purposes of regulating the operation of the Authority in the respective contracting States. According to the Applicant, the Management of TAZARA is as per the agreement between the United Republic of Tanzania and the republic of Zambia. It is managed by Two Organs. First, it is the Council. Second, the Board of Directors. The Council is constituted by the Ministers for the transport in their respective Countries. The Board of Directors is constituted by members from the two Countries but the Managing Director must come from Zambia in terms of section 14 (1) of the Tanzania Zambia Railways Act Cap 143. The Government of United Republic of Tanzania and Republic of Zambia have no powers to question any act of Board of Directors who have autonomous powers from the decision they make. Quite different from the public entity. In terms of section 12 (2) (f) of the TAZARA Act (supra), the Managing Director of TAZARA can only be fired by the same Board. 4 It was the submission of Mr. Paschal Temba that the process of recruitment of the employees are regulated by the Authority and their employment entitlement are deliberated by the Board of Directors of TAZARA which decides on who should be recruited, fired or promoted. They do not follow the procedures applicable in the public service on who should be recruited, pay of salary, rate of salaries and when they want to fire an employee. Mr. Paschal Temba went on to submit that; TAZARA workers are not within the category of a Public Servant as their office is excluded under section 3 (ii) of the Public Service Act (supra). Neither the United Republic of Tanzania nor the Republic of Zambia has any power to make a decision over the operations in anyway. To buttress such averment, the Applicant's Counsel cited the decision of my learned Sister Hon. Judge Mruke in the case of Deodatius John Lwakwipa and Another v. TAZARA, Revision No. 68 of 2018, High Court of Tanzania Labour Division at Dar es Salaam (unreported), in which this Court held: ...it is now clear that the Respondent fall under roman (ii) as it is established under the law as per section 4 (i) of the Tanzania-Zambia Railway Authority Act. Hence not a public service office. Therefore, the Applicants do not fall under 5 the category of public servant, thus bound by Public Service Act Disciplinary mechanism as stated by the Respondent's counsel. Mr. Paschal Temba, therefore, concluded that TAZARA is not a public organization in the meaning of the Public Service Act (supra). Further, Mr. Paschal Temba was aware of the decision of the Court in the case of Tanzania Posts Corporation v. Dominic A. Kalangi, Civil Appeal No. 127 of 2020, Court of Appeal of Tanzania at Dar es Salaam (unreported) which brought attention of a public servant and non- public servant. He however distinguished it because the Tanzania Posts Corporation is Government entity, while TAZARA is not wholly or substantially owned by the Government of the United Republic of Tanzania as per Article II Clause 2.1 of the Agreement for Establishment of TAZARA and Tanzania-Zambia Railways. Mr. Paschal Temba was of further view that the decision in the case of Tanzania Posts Corporations (supra) arose from the provision of section 32A of the Public Service Act as introduced by section 26 of the Written Laws (Miscellaneous Amendments) Act 2016; No. 3 of 2016. Thus, the said provision requires a person in the Public Service to exhaust available 6 procedure in the Public Service Procedure up to the President. However, the matter before this Court arose in 30/04/2009. That was prior to the introduction of section 32A of the Public Service Act (supra). According to Mr. Paschal Temba, section 16 (4) of the Government proceedings Act as amended by Miscellaneous Amendment Act No. 1 of2020 defines what is a public entity. However, TAZARA does not fall within the categories of public corporation to which the Government own majority shares. Hence, the Applicant is not the public servant in the public service. On the basis of the above submission, Mr. Paschal Temba prayed this application be granted to allow the CMA to proceed with the determination of the rights between the parties. In response, the Respondent herein was of submission that TAZARA is indeed a body corporate established by the Tanzania Zambia Railway Act Cap 143. The Authority has been formed by and between the Government of the United Republic of Tanzania and the Government of the Republic of Zambia to cater for the movement of goods and persons within the line. According to the Respondent, all persons working within the Authority by virtue of the ownership of the Respondent are public servants vested with the duty to provide public railways service to the public. The nature of the 7 service offered by the Authority is of a public nature to cater for the public as an essential service and its employee's falls within the ambits of the Public Service Act (supra). It was the Respondent's reply that by virtue of the Act it is clear the ownership is by the Government of the United Republic of Tanzania and the Government of Zambia who are the two co-owners of the corporation. Section 4 (4) of the TAZARA Act (supra) establishes the authority and give the authority powers to be a body corporate with perpetual succession and a common seal capable of suing and being sued. Section 4 (4) (supra)stetes'. The Authority shall establish regional offices in Zambia and Tanzania, which shall be self-sustaining units of the Authority, as cost and profit centres, operating on sound commercial principles. The Respondent maintained that 77LZ4/7ZI Act (supra) clearly acknowledges that the offices in Tanzania and Zambia are self-sustaining units which are fully operational on their own. The question of who now owns TAZARA becomes clear and is easily answerable. The self-sustaining unit located in Tanzania is fully owned by the Government of the United Republic of Tanzania and has no other ownership. The Government of Zambia has no mandate or authority when it comes to the Tanzania Cost and Profit Centre clearly established by section 4 (4) of the TAZARA Act 8 (supra). Consequently, the Government is the sole owner of the Authority in Tanzania. Additionally, the Respondent submitted that; Section 30 of the Public Service Act Cap 298 [RE 2019] discusses institutions similar to the Respondent by categorically excluding them from being dealt with within the Employment and Labour Relations Act [Cap 366 Revised Edition 2019]. Its states: (b) Executive Agencies and Public Institutions Service 30. Servants in the Executive Agencies and Government Institutions shall be governed by provisions of the Laws establishing the respective executive agency or institutions. Section 30 (2) of the Public Service Act states: Without prejudice to subsection (1), public servants referred to under this section shall also be governed by the provisions of this Act. Further, Section 32A states: A public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies as provided for under this Act. According to the Respondent, from the reading of the above sections of the Public Service Act (supra), it is clear that the employees of the Authority have been included in the public service employment dispute resolution mechanism as a dispute settlement mechanism of first choice and 9 are hence duty bound to adhere to the Public Service Act (supra) as they would adhere to the Employment and Labour Relations Act (supra) dispute settlement mechanism. Thus, the Public Service Act (supra) being the Act that governs public servants would take precedence over the Employment and Labour Relations Act (supra) \n matters involving employment disputes for executive agencies and government institutions. As the intention of the legislature was not to include these employees but rather to oust them from the Commission for Mediation and Arbitration as rightfully concluded by the Mediator. The Respondent called upon this Court to consider; whether the provisions of section 32A of the Public Service Act (supra) took away the vested right of the Applicant to refer his complaint to the CMA which right he had prior to the change of the Public Service Act (supra). The Respondent cited the case of Joseph Khenani v. Nkasi District Council, Civil Appeal No. 126 of 2019, Court of Appeal of Tanzania (unreported) in which the appellant had knocked on the doors of the Commission for Mediation and Arbitration prior to the enactment of the new law. His dispute and its cause of action arose before the change of law and he was at the Commission before the change of the law hence the law could not apply retrospectively. The Court of Appeal stated as follows at page 12 to 13: io In the case at hand, it is apparent that the appellant filed the complaint before the CMA when it was quite in order to do so without exhausting the remedies provided for in the Public Service Act. That was the law then. The requirement to exhaust all remedies under the Public Service Act came later; when the matter the subject of this appeal was already in the CMA. The Court further states at page 14: We therefore find merit in Mr. Sahwi's contention that the provision was not applicable to the appellant and hence the authorities cited by the respondent are not applicable as well. We thus hold that the CMA had jurisdiction to entertain and hear the matter filed by the appellant before it. From the above, it was the Respondent's Counsel submission that the applicant in the above case had brought his matter before the Commission prior to the law being in place and hence should be distinguished from the case at hand. The Respondent, therefore beseeched this Court that this case should be distinguished from the case of Joseph Khenani (supra) as the Applicant had knocked the doors of the Commission after the law had already changed. The Respondent prayed that the Applicants revision application be dismissed in its entirety with costs and he be ordered to properly and rightfully channel his dispute and complaints to the proper dispute resolution mechanism through the Public Service Act (supra). 11 In the light of the afore arguments, as I did in the case of Benjamin T. Mangula and 20 Others (supra), I eagerly find the approach to construction whether TAZARA is a public entity or not needs to be re­ examined using inter alia six main cumulative balancing tests: One, whether TAZARA was created by the Governments through a bilateral agreement (treaty) or by statute. Two, the extent of the two-Government involvement or regulation. Is the control and supervision of TAZARA vested in the public authorities? Is TAZARA an instrumentality of the Government? Three, ownership of TAZARA. Four, the level of funding of TAZARA, the degree of financial autonomy and source of its operating expenses. Five, are there private interests involved? Six, the object of TAZARA. These six tests are only illustrative. There are not conclusive and exhaustive. The tests are inclusive in nature. The Court must interpret such tests with care and caution. Rational and relevant considerations must be the controlling factor. The issue; whether TAZARA was created by the Governments through bilateral agreement (treaty) is straight forward and requires understanding of an elementary public international law principle on the effects of a treaty and private international law in regulating employer-employee contractual relationship. There is no dispute by both Counsel that TAZARA was established by two Sovereign States through a bilateral agreement which 12 can also be termed as a Treaty or a Convention of 1975. Tanzania like Zambia are Dualist States. Dualist States are States in which no treaties get automatic status of law in the domestic legal system till when such treaty or agreement is domesticated. The TAZARA agreement could not be used to enforce rights and duties without domestication. In order to enforce TAZARA agreement, the two States agreed the treaty be domesticated. It could have been different if the two countries are Monists. The latter allows bilateral agreements to apply automatically upon ratification without further action. That means, in Monists States, a treaty has a direct application and does not need domestication. Examples of Monists States are Germany, Belgium, the Netherlands and France. As properly submitted by Mr. Paschal Temba, Applicant's Personal Representative the provision of Clause 2 (2) (b) of the Bilateral Agreement gave mandate to the Member State to enact the law in the respective State. That was in essence the domestication of the terms of the bilateral agreement. It follows, therefore, incorrect for Mr. Paschal Temba to argue that TAZARA was not established by an Act of Parliament. With the above logical aid of principles of public international law on law of treaties, it is not proper to argue that TAZARA can even operate in 13 the absence of an Act of Parliament. Under the eyes of the law, TAZARA was established through a bilateral treaty and given effect into the Municipal law of the contracting States by way of domestication. The United Republic of Tanzania enacted The Tanzania Zambia Railway Act Cap 143 of 1975 and the Republic of Zambia enacted The Tanzania Zambia Railway Act, Cap 454 of 1975. To that effect, it can be gainsaid that TAZARA became a public entity through Cap 143 (supra) and 454 (supra) of the United Republic of Tanzania and Republic of Zambia respectively. It is the said Cap 143 (supra) and 454 (supra) which gave birth to TAZARA. Keeping statutory creation of TAZARA in broad spectrum, as I did in the case of Benjamin T. Mangula and 20 Others (supra), it is my further findings that the construction of the TAZARA Treaty should start from the position that the parties, as two Sovereign States, under Clause 2 (2) of the Agreement (supra), intended the agreement they entered and its protocols to be domesticated and make TAZARA a public entity. The whole agreement should be construed in accordance with this position unless the language makes it clear that TAZARA was intended to be excluded from the two sovereign States as public entity to private entity. Mr. Paschal Temba has not told the Court at what point of time the TAZARA bilateral agreement got the attribute of being a private entity. •14 On the point of mobility of workers of TAZARA, I join hand with Mr. Paschal Temba that TAZARA workers can work in both States. Indeed, their termination does not require endorsement of a public officer. However, the law guiding them are pari materia. Wherever the TAZARA employee works is guided by similar law. Even if the law guiding TAZARA employees are conflicting from the contracting States, the employer-employee relationship whether in public or private is based on contract. The Public Service Act (supra) and its regulations are gap filling default rules. The latter cannot supplant the contract rather they supplement the contract. Under private international law, the principle of iexi contractus comes in to decide any dispute relating to employer/employee relationship. If the TAZARA employee was engaged in the Republic of Zambia, the Zambia Public Service Act will apply. The same applies to Tanzania. Without prejudice to the above observation, through the principle of iexi contractus, when a contract is made in one State and it is to be carried out in another State, the law of the place where it was signed is applicable in the construction of the contract, interpretation of the terms and in deciding the validity of the contract. But with regard to execution of the contract, the law of the State where it is to be carried out applies. 15 I must further strongly point out that, TAZARA cannot achieve its purpose if the Courts adopt an approach to construction which is likely to defeat the intentions anticipated by the two sovereign States in their bilateral agreement which has already been domesticated. The insignia of establishing TAZARA is to make it a public entity between two contracting States. On ownership, there is no dispute by both Counsel that in terms of Article VII (b) of the TAZARA Agreement (supra), TKZJXPJ\ is owned by Tanzania by 50% shares and by Zambia by 50% shares. As such, the entire share capital of TAZARA is held by the two sovereign contracting States. By all yard of reasoning, such ownership makes TAZARA a public entity to both Tanzania and Zambia. This appears to be the position adopted by this Court in the case of TAZARA v. William Mhame and 36 others, Revision Application No. 481 of 2021 High Court, Labour Division (unreported), p.7 and EDO Mwamalala v. TAZARA, Labour Revision No. 249 of 2021, High Court, Labour Division at Dar es Salaam (unreported). I should add that, a combination of 50% share owned by The United Republic of Tanzania and 50% share owned by The Republic of Zambia do not result to private ownership. It results to 100% share owned by the two Republics. 16 Consistently, the arguments by Mr. Paschal Temba that The United Republic of Tanzania does not own majority share of TAZARA to constitute a public institution in terms of the provision of section 16 (4) of Government Proceedings Act [Cap 5 Revised Edition 2019]\s not correct. In fact, TAZARA is wholly owned 100% share by The United Republic of Tanzania and 100% share by The Republic of Zambia in terms of the 50% public shares allotted on each contracting Member State in terms of Clause 2(b) of the Agreement (supra). There is no single share of any private entity in TAZARA from either of the Member State. To subject TAZARA to public institution is proper and it is in accordance to the law and the original aims of the establishing contracting States. The other point of consideration is on the extent of the two- Government involvement or regulation. Assessing the functionality of TAZARA under the law, one will find that there is a deep and pervasive nature of control by the two States. The two Governments controlling or regulating TAZARA can be evidenced in among other areas: One, section 3 (1) and (2) of the Tanzania Zambia Railway Act Cap 143 (supra), confers ex facie powers to the Council to give to the Board directions as to the performance by the Board of its functions in relation to matters which appear to the Council to affect the 17 public interest and the Board is mandated to give effect to any such directions. 7Tvo, it is the duty of the Council to give directions to the Board on all matters in respect of which the Board requires the prior consent or approval of the Council under the Act. One of areas which the Board requires prior approval from the Council in terms of Section 9 (1) (b) of Tanzania Zambia Railway Act Cap 143 (supra) is raising of additional share capital. The same is pari-materia to section 10 (1) (b) of Cap 454 (supra). Three, in terms of section 10 (d) of Cap 143 (supra), the Council has duty to give directions to the Board on matters of Public interest. The same is required under section 10 (f) of Cap 454 (supra). In terms of section 10 (d) of Cap 143 (supra), a report upon the operations of the Authority during that year must be transmitted to the Council which must cause the same to be presented to the National Assembly. Such powers, signify that the two Governments are largely involved in regulating TAZARA. Again, in terms of section 19 (1) of Cap 143 (supra), among the sources of funds of the authority is funds appropriated by the Parliament. Section 19 (1) (a) (supra) is pari-materia to section 19 (1) (a) of Cap 454 (supra). 18 TAZARA has been conferred by statute of both States to render transport services of people and goods between Member States. In so doing, it promotes economic activities and commercial activities for the interests of the two States. The significance of the observation is that TAZARA under control of the two contracting States need not carry on Governmental functions. It carries transport commercial activities. More so, there is a point of Composition of the Board. In terms of section 11 (1) (a) (b) (c), (2), (3) and (4) of Cap 143 (supra), the composition of Board of Directors is of Government officers determined by the two Governments. The same it applies to the composition of Council of Ministers under section 9 (1), (2) and (3) of Cap 143 (supra). It is the Governments which have powers to appoint and remove the Board Members and Council of Ministers. At all yardstick, TAZARA is controlled by the two Contracting States. As such, TAZARA is an instrumentality of the two States. Even if TAZARA servants are not subjected to Tanzania Public Service Pules, TAZARA being a public authority, it is a State corporation owned by the two contracting States. Notwithstanding the above findings, as I observed in the case of Benjamin T. Mangula and 20 Others (supra), it is an elementary principle of law that procedural law is a law that specifies the practice, 19 procedure and machinery for the imposition of rights and duties. Whereas, substantive law is the law that states the rights and obligations of the parties concerned. With such understanding in mind, Section 32A of the Public Service Act (supra) requires a Public Servant to exhaust Local Remedies. It provides for the procedural machinery and obligations of the public employee for pursuing his/her rights. From the above discussion and logical sequitur, the following principle emerge: One, TFZhPJX is a statutory entity wholly owned by the two contracting States on equal share capital. That gives indicia that TAZARA is not a private entity. Two, Transport services and commercial activities on transport sector carried on by TAZARA makes it an instrumentality of the two contracting Member States. Three, though the instrumentality of TAZARA conducts commercial activities according to business principles under the Board of Directors, still TAZARA is the arm of the two contracting member States through the Council of Ministers. Four, though TAZARA has its corporate name, capable of suing and or of being sued, functionally and administratively is dominated by or under control of the two contracting Member States. Besides, I agree with Mr. Paschal Temba that section 3 of the Public Service Act (supra) define Operational Service as the cadre of Supporting 20 Staff not employed in the executive or Officer grade and Officer Grade means the lowest entry grade in the Public service of a Holder of a degree of a recognized University or equivalent qualification. It is my view that under such two definitions, one would conclude that in the Public Corporation there are two categories of employee. These are the Operational Cadre which is governed by the Employment and Labour Relations Act (supra) and the Officer Grade governed by the Public service Act (supra). It is my view that, for those who are governed by the Employment and Labour Relations Act (supra) may approach the CMA with evidence of their cadre. In this case, there is nothing in record to establish the cadre of the Applicant. In the light of the above discussions and principles, I have no hesitation to hold that TAZARA is a public entity. The next crucial issue for consideration is; whether CMA erred in law and facts for dismissing the complainant without regard that the cause of action arose before the enactment of Written Laws Miscellaneous Amendment Act No. 13 of 2016 (supra). I have carefully considered the convincing arguments of both sides; as I observed in the case of Benjamin T. Mangula and 20 Others (supra), it is the position of this Court that: One, section 32A (supra), requires a 21 public servant to exhaust all remedies under the Public Service Act before resorting to remedies provided in Labour laws. The initial step is for the public servant to refer his complaint before the Public Service Commission. Once aggrieved, the final appellate entity is the President. If the public servant is aggrieved with the decision of the President, The Public Service Act (supra) is silent. Two, in terms of the decision of this Court in the case of Mlenga Kalunde Mirobo (supra), the public servant has to go to the High Court by way of judicial review under the provisions of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, Cap. 310. The proposition of exhausting local remedies is evident in among other cases, the case of Tanzania Electric Supply Company Limited v. Mrisho Abdallah and Four Others, as per, her Ladyship Bahati, J. Labour Revision No. 27 of 2020, High Court of Tanzania Tabora District Registry (unreported); Asseli Shewally v. Muheza District Council, as per my brethren Mkasimongwa, J. (as he then was) Revision No. 6 of 2018, High Court of Tanzania, Tanga District Registry, (unreported); Benezer David Mwang'ombe v. Board of Trustees of Marine Parks and Reserves Unit, as per, her Ladyship Aboud, J. (as she then was), Misc. Labour Application No. 380 of 2018, High Court of Tanzania Labour Division at Dar es Salaam (unreported); Simon Josephat v. Dar es Salaam Water and 22 Sewarage Corporation, as per, her Ladyship M. Mnyukwa, J. Revision No. 941 of 2019, High Court of Tanzania Labour Division at Dar es Salaam District Registry (unreported); Alex Gabriel Kazungu and Two Others v. Tanzania Eletric Supply Company Limited, as per my brethren Mdemu, J. Labour Revision No. 40 of 2020, High Court of Tanzania at Shinyanga District Registry(unreported). It is also correct that the Complaint was referred to CMA by the Applicant on 30/04/2009 but the Act No. 13 of 2016 came into force on 18/11/2016. That being six years before. But Act No. 13 of 2016 (supra) had both substantive and procedural effect. In the upshot, the application is dismissed for lack of merits. Order accordingly. Judgement pronounced and dated 9th March, 2023 in the presence of Paschal Temba, Personal Representative of the Applicant and learned State