godfrey ndigabo vs tanzania ports authority 2021 tzhcld 103 9 april 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 772 OF 2019 BETWEEN A n ..^APPLICANT GODFREY NDIGABO VERSUS TANZANIA PORTS AUTHORITY RESPONDENT JUDGMENT Date of Last Order: 24/03/2021 Date ofJudgment: 09/04/2021 & Z.G.Muruke, J, On 6th February,'2012^Mr. Godfrey Ndigabo (applicant), was employed by the ^respondent* as a Machine Operator. He performed his duties untH 18,^ ^August, 2018 when was terminated on ground of misconduct, tbXwit^he'was working as a machine operator while knowing hejias nb aG^demlc^qualification. Being aggrieved with the termination, he appealed toxhe Commission of Mediation and Arbitration (CMA) where at the heaffhgf the respondent raised a preliminary objection on jurisdiction of the CMA in determining the dispute of a public servant who have not exhausted internal remedies. Upon determination of the Preliminary objection, CMA sustained it on the reason that the applicant has not exhausted the internal remedies as required under the Public Service Act. i The applicant again felt resentful thus filed present application praying for the CMA's ruling to be revised and set aside. The applicant filed his affidavit in support of the application. Ramadhani Ngogo's counter affidavit was filed to challenge the same. Hearing was by way of written submission, the applicant was represented by Mahfudhu A.Mbagwa, while the respondent was^ser^edX by Esther \\ Matulila Leonard Mpemba, Shija Charles Ng'wanza, and RamadhanpNgogo her principal officer and advocates at different times> HearingWas ordered to be by way of written submission. In support of the application the applicarit^cdunsel submitted that the arbitrator erred into her finding has no jurisdiction to determine the dispute until the applicari|Jhave exhausted the internal remedies. The arbitrator should'>hajz,e) invoked the provision of the Tanganyika Ports AuthoritySfct and not Public Service Act in determining the dispute because, ^the^applicant is not a public servant within the meaning prescribed^ uhder the Public Service Act that requires exhaustion <\ % '’■j of internaTremediesibefore referring a dispute to CMA, citing Section 3(H) 'k. of the PubliCvSeiMcejAct. The respondent is a corporate body established under Section 4$of the Tanzania Ports Authority Act, hence the applicant is not a piMc^servant under Section 3 (a) (ii) of the Public Service Act. He also cited the cases of Deogratius John Lyakwipa v. Tanzania Railway Authority, Rev.No.68/2019 and Salehe Komba & Another v. Tanzania Costs Corporation, Rev. No. 12/2018. 2 Mr Mbagwa further submitted that to strengthen her finding , the arbitrator referred Section 4 (2) of the Ports Act and interpreted that since the Attorney General is allowed to intervene into the suit instituted by or against the respondent, the respondent is bound by the disciplinary mechanism of the Public Service Act. The arbitrator had a duty to find out the proper legal procedure that should be governing the^respondent. Thus Mr. Mbagwa prayed for the application to be granted; In reply, the respondent's submitted that the> applicant's counsel in his submission referred The Tanganyika Ports Act anKjanzania Ports Act the laws which are not in existence in our JawsW'the land. It was hard for them to trace in reply, he prayed forzthesrouij^to disregard all the facts submitted by the applicant's counsel ih^relajion to the non-existing laws. He further submitted that, the factjhatjthe respondent is an independent body with perpetual succession does not exclude the applicant from being a public servant. He isjhe^public servant and his contract of employment was governed by^tne^Publlic'Service Act,2002 and the Public Service RegulatiohsYof^OOS^pecific laws). It is a principle of laws that the specific laws should.fitst. ba invoked before the general law is applied. Employers under the public service are required by the law to apply specific laws in public'sector>before they resort to the other set of laws citing Section 32A of the Public Service Act (CAP 298 as amended by Miscellaneous Amendments No.3/2016. 3 The applicability of Section 32A was elaborated in Public Service Memoranda No. 1/2017 with reference No. CAC/44/472/01 dated 1st August, 2017 in which the respondent, is mentioned at paragraph 4.2(d). Its applicability is stated at para 3.1.7 which reads; 'Kuongezwa kwa kufungu kipya cha 32A kinachowataka watumishi wa umma kushughulikia maswala yao ya kiutumishi kwa‘ kuzingati a^ utaratibu uiiotoiewa katika sheria ya utumishi wa umma na-.kanuni-zake kwa ukamiiifu kabla ya kuanza kushughulikia. maswala hayo kwa mujibu wa Sheria za kazi...' It was further argued by respondentlcpunselThat, the Public Service . . . .. ... .. , Z®Vi. ijo,. . . , ,, , Act and its regulations provides for disciplinary^rpachinenes to be adhered in order to get remedy for anything doneNn.connection of employment of a public servant, referring Regulation^jCOf of the Public Service Regulations of 2013 (GN.168/2013). c X. Additionally, it. was, submitted for the respondent that since the matter was still pendiri^arfhe Public Service Commission, CMA had no '%A5 jurisdiction tofjdetermine the same. CMA would have jurisdiction if the applicant^fia^Kchausted all the internal remedies as required by the law. Therefore triexarbitrator was correct in her decision that CMA had no jurisdi^n^tb determine the applicant's complaint. Respondent counsel prayed for the application to be struck out for the interest of justice. In rejoinder, the applicant's counsel reiterated their submission in chief, while conceding to have erred in citation of the law and stated that it cannot render their submission be disregarded. He further submitted that 4 the applicant is not aware of any referral made to the Public Service Commission as contended by the respondent's counsel and the same was not raised before CMA. The respondent's counsel wrongly attached the annexures on his submission. It is a settled law that submissions cannot be used to introduce new evidence, referring the case of TUICO v. Mbeya Cement Company Ltd (2005) TLR 41. Mr. Mbagwa, cgjJhsel for the applicant insisted the prayers in submission in chief. vxx I have noted with concern that, respondenbhas attached, evidence in the submission. That is not right. Allowing a party to>attach annexures to the submissions is like allowing production of^eyideqce. Such documents cannot be tested by adversary party, ^say^b^ciioss - examination. Only authorities referred should be annexedxto the submissions. The above not withstanding, despite annexing irregularity, or at a later stage same touches on jurisdiction^pf CMA/and this court to hear and determine the dispute, and revision at^hand. Jurisdiction is very fundamental can be raised at any stage'-oTih'e^pfbceedings, more so, the document Waraka namba 1 wa!,.20;l^is>a public document that can be viewed by any person, includingzthis !courtathat is suppose to use in the interpretation of law regarding publi&sd'rvant. Upon/Careful consideration of the rival submission and the records, the issue to be determined is whether CMA had jurisdiction to entertain the dispute between the parties. It is true that jurisdiction should be one of the first things to be established in any litigation. It refers to the limit of a legal authority granted by the law to the courts to determine the matter before it. 5 In the matter at hand the respondent's counsel insists that CMA had no jurisdiction to determine the matter between them because the applicant have not exhausted all the internal remedies as provided under the Public Service Act. CMA conceded with the respondent and ruled that the applicant ought to have exhausted internal remedy prior, instituting the dispute before CMA. Section 32A of Public Service Act as amended bysWritten Laws (Miscellaneous Amendments) Act No.3/2016 provided; ' A public Servant shall, prior to seeking remedies. provided for the in labour laws, exhaust all remedies as provided fodunder this Act'. It is well settled principle of law that, me specific law should be firstly invoked before general law is made to apply. Employers under the public service are strictly required^by the law to firstly apply the laws specifically applicable in the public secto^before they resort to the other set of laws which applies to thlRaj^attJSectors only and which are more general in terms of ti^^ap^iicador^as per Section 32A of the Public Service Act [CAP 298] as amended by written laws (Miscellaneous Amendment) No. 3 of 20=16 dated/I'Sv November, 2016. Was applicant working with the respondent as public servant? The answer is found on the discussion below on the status of respondent (TPA) in terms of law. Notably, Tanzania Ports Authority is a body corporate by virtue of Section 4(l)(a) of the Ports Authority Act, 2004 capable of suing and be 6 sued. However, Section 3 of the Public Corporation Act [CAP 257 RE 2002] defines a public corporation as follows: "Public corporation" means any corporation established under this Act or any other law and in which the Government or its agent owns a majority of the shares oris the sole shareholder." Moreover, a public corporation in which the Government is^anjajority shareholder is under the control of the Government as evidence by the following: according to Section 9(1) & (2) One; iKjs the president who appoints the chairman of the Board of Directorfeand the Board members are the appointees of the Minister responsible with the public corporation; two; the Chief Executive Officer^ofIthe said^Public Corporation is the appointee of the Minister in terms of Section' 13(1) of the Ports Authority Act (Supra). ^^-4 Besides, under section"^ of the Public Corporation Act (supra),the Minister is mandated\to give^the board of Directors of the Public Corporation general or\specific directions as the performance of its functions. MoceoVer3the accountability of a public corporation to the xx V Minister rfespgqsiblelis spelt out under Part IV of the Public Corporation Act. The Ports Authority Act of 2004, has corresponding provisions Xxx / whereby, one, under section 6(1) the Chairman of the Board of Directors is appointed by the president whereas the Board members are appointees of the minister. Two, it is the minister who appoints the Director General and Chief Executive Officer of the Ports Authority under Section 34(2). Three, under Section 20(1) the minister may give directions to the Ports 7 Authority which is required to give effect to such directions in terms of section 20(3). Similarly, the ports Authority as a public corporation is accountable to the Minister responsible as spelt out under Part IV of the Public Corporation Act (supra). In view of the stated position of the law, the Tanzania Ports Authority as public corporation is under the control opthe Government, notwithstanding its corporate status; capable of suing an'd^be sued under Section 4(1) of the Ports Authority Act of 2004 Applicability and purpose of the prov^siorhof 'Section 32A bf the Public Service Act, (CAP 298) as amended«byXwril!ten laws (Miscellaneous Amendments) No. 3 of 2016 wl)ich was added to the Public Service Act, X\ >^"7*Z 2002 was clearly elaborated by thc^PubliG'.Service written Memoranda No. 1 fit of 2017 {^Waraka wa Utumishi wa Umma No. 1 wa mwaka 2017) with reference No. CAC. dated 1st August, 2017 in which the respondent (TanzaniaWdrts Authority) is mentioned at paragraph 4.2 and its applicability-is-clearly stated at paragraph 3.1.7 of page 3 which reads, I quote: "Kuongezwa kwa kifungu kipya cha 32A kinachowataka ^watumishi wa Umma kushughuiikia masuaia yao ya kiutumishi kwa/kuzingatia utaratibu uiiotolewa katika Sheria ya Utumishi wa Umma na kanuni zake kwa ukamiiifu kabia ya kuanza kushughuiikia masuaia hayo kwa mujibu wa Sheria za Kazi,” As a matter of common sense, it is prudent to say that, a person cannot be recruited employed by one law/body and that, when it comes to 8 mattes that concerns his employment the same law/body that recruited that employees be put asunder and rush to another law while there is already established procedures or remedies under the specific law. The applicant was a Public Servant and in that, he is bound by the Public Service Act, 2002 and its Regulations of 2013 (herein., referred as "specific law"). In that, one cannot opt for general^dispute\ resolution machinery provide by the specific law. Where the specific law^provides resolution machinery, then all dispute has to be Referred there and that, neither the Commission for Mediation and Artjittatioh^ndr the high Court shall have no jurisdiction to entertain such'irotter^referred to it contrary to the specific machinery provided by>thefs^ific';la$. r VI Since the applicant is the Public Servant, the only law that governs all matters related to his employment contract including disciplinary issues is the specific law of that^rriploye^, and in this case, it is Public Service Act, 2002 and its regulatTdns^of.7013. As provided under regulation 60(2) of GN No. 16'8^of^2013)^^)only remedy provided is to appeal to the Public Service Commlssiomhot CMA or elsewhere. In that, it is clear that CMA ha^no juri^dictidn to entertain the applicant's complaint because, the same issue was and is still pending with the Public Service Commission and in that, the remedy provided under regulation 60(2) of GN No. 168/2013 has not yet being exhausted to the fullest. The case of Deogratius Lyakwipa Vs. TAZARA cited by applicant counsel, is distinguishable with present one on the following; one; TAZARA 9 is not mentioned in Waraka wa Serikali No. 1: two; Deogratius Lyakwipa did not appeal to Public Service Commission unlike Godfrey F Ndigambo who referred the dispute to the Public Service Commission on 29th September, 2018, while waiting for the outcome of appeal he then filed dispute at CMA ON 03rd October, 2018. To this court applicant was doing forum shopping which is not allowed in any court of law. Tliiis, the CMA clearly satisfied itself on the issue of jurisdiction before jt arfived at its "'Xx decision. In totality revision application dismissed-for lack of-merits. Z.G. uke judGeX^ W XK 1 09/04/2021 Judgment delivered in thap’resence of applicant in person and Ramadhani 'MX xx Ngogo, State Attorney for respondent. Z.G. Muruke 4xx x JUDGE 09/04/2021 10