19860329 TZHC Dar es Salaam

r IN THE c-01ThT OF i•L AT DAR ES SALAAM OF TANZANIA MUSTAFA, J.A.; MAKAME, J.A. And KISANGA, J.A • , • I• CIV~L APPEAL NO. 1 Op 1986 6HAM~SI ALLY RUH0ND0 8'. 115 OTHERS •• APPELLANTS ,_ VERSUS TANZANIA-ZAMBIA RAILWAY A UTHOR.l TY •• RESPONDENT (Appeal from the Order and Decision of the High Court Of Tanzania at Dar es Salaam) (Lubuva, J.) dated the 26th day of October, 1985 in Misc. Civil Cause No. 7 Of 1985 JUDGMENT OF THE COURT The appellants in this appeal, HAMISI ALLY RUHONDO AND 115 OTHERS, were employed by_ the respondent, TANZANIA ZAMBIA RAILWAY AUTHORITY, popularly.known as Tazara.- -Their services t" were terminated by the respondent, .allegedly because of redt1ndancy c~used ~y the respondent's declining business as a ·result nf a number of alleged factors the details of which it is not immediately necessary to go into. The apoellants were disatisfied so they went to the Permanent Labour Tribunal, via the Commissione.t' fer Labour, in terms of Section 9A(1) of the Permanent Labour Tribunal Act, 1967, as amended by Act No. 18 of 1977. The Tribunal duly inquired into the matter and accordingly made a report -t;o the l:inister for Labour and Manpower Development. On 7th N~vembe;t', . 1984 the said Minister made a decision, reversing the stf:lp taken by the respondent of terminating the appellants' services. The Minister ordered the reinstatement of the appellantsr. · without any loss of benefits, and directed that the purported ~edundan~y payments should be treated as interes~~ de~s. Thirteen days later the d;cision was registered by the Tribunal as an award, in accordance with Section 98(1) of the Act as amended • . . . . . . . . /2. 2 j The respondent·was not satisfied with the Minister's decision $• i~ February, 1985, through their advocate, Mr~ Tarimo, they applied for an order of certiorari to remove the Minister's order into the High Court and have it quashed and set aside. - The application was heard by Lub'uva, J. on 2nd October, 1985 and on 26th October, 1985 the learned Judge deliverea his Ruling, which was in favour of the applicants, Tazara. He was satisfied that the proceedings before the Tribunal were ultra vires so he quashed the Minister's order based on them and set it a~ide. The aQpellants are now appealing to this court, and Prof. Shivji of the University Of Dar es Salaam Legal Aid Committee, who has represented them all along, is appear~ng for themo Mr.· Tarimo continues to represent the respondent. That, in brief, is the background to this appeal. Before going into the substance of the appeal we Wish t• remark that we were !:nc~nlfeh1ehced by the recor~ furnished to t.fs and which was duly certified by the appellants I advocate: Between Page 59 and Page 60 of the typed record a whole page of the original record is left ou~, which mak~s it appear that only Prof. Shivji, and not Mr. Tarimo, said anything~= oll before Maina,, Jo on 2nd March, 1985. Then at Page ;2 nearly ten pages of the original record are omi ttedo Page 74 shows tt-::1 t 1~,y)e was granted to appeal to the Court of Appeal against Lubuva, J.'s Ruling while the Ruling itself starts from Pag~ 75~ We wish to urge Profo Shivji,the learned advocate for the appellants to exercise greater care when certifying records and we would respectfully draw his attention to the Rules of the Court of Appeal regarding this matter. To come back to the appeal itself now. In a lengthy Memorandum of Appeal the appella;1ts urged several grounds.. So as to appreciate the really momer.':ous ones it is necessary to recapitulate the main grounds Tazara put forward before the High Court in support of its prayer for an order of certiorari, as well t)1e findings on which th•~ learned· judge '-""' \..: - 3 - based h:i,~f:?lf in granting the prayer. The present respondent's main_grounds were as follows: (1) There was no Trade Dispute in existence when the Permanent Labour Tribunal was directed to conduct an i1quiry ' so both the order to the Tribunal and the purported inquiry offended the provisions of Section 9A(1) of the Act. The said . ' ... \-_ . : :' Secti0h,',:9A'(1) reads: s·i1bj.ect to subsection ,!) (which is irrelevant here) where ~ny trade dispute exists or is apprehended, the Labour Commissioner may inquire into the causes and circumstances of the trade dispute and, with the approval of the Minister, refer a~y matters appearing to him to be connected with or relevant to that trade dispute to the Tribunal and the Tribunal shall inquire into ·the matters referred to it and report on them tn the Minister., ) (11) The inquiry on which the Minister relied on was in any case null because the proceedings were conducted without the ,. authorik;y ~9lnd or knowledge of Juwata. In such inqufry proceedings the employees must be represented by Juwata which is a ·r1ece·ssary party to any such proceedings. (111) There must be, and here there was not, a report from the Juwata Secretary General on which the Labour Commissioner cou.ld have initiated. the inquiry. f ,, and (iv) The Minister's order and decision breached the rules of natural justice in that Tazara were not given an opportunity to be heard befQ~e the Minister made the said decision and order against themo The present appellants urged a number of grounds to counter Tazara's assertionse The main ones were that the purported term~nations were void ab initio because there had been no prior consultation with Juwata Field Branches befora the decis!On of decla-r_ing the workers redundant. Th<2 present appellants protested ....... "... o.4/ 4 ... ~gains~ the terminations and approached the Labour Commissioner who in turn enquired with the Juwata Secretary General; which set in motron the other steps which followed. The appellants were obviously di satisfied, hence the steps they took, to resolve a . t.i:;:a<:1e dispute, and there was no obligation on their part, or on anyone's part, to involve Juwata in the inquiry proceedings • • It was not obligatory for the Labour Commissioner to get a report from the Juwata Secretary General before he could initiate ·an· inquiry o The appellants further contended that the respondent had in any event unduly delayed in asking the court- to exercise its discretion and granting an order of certiorari. In issuing the order for certiorari the learned High Court judge was satisfied that, among other things: {;. · There was no trade _dispute. The issue of reducing the number of workers had been amicably "settled or compro~ised between Tazara the employer, the applicants in this mntter and Juwata. Juwata was fully involved in this". " .. °". Juwata as a trade union had been sufficiently involved at vari2ys stages pertaining to the redundancy issue of Taznra employees, some of whom were the respondents". Specifically the learned judge observed, in the course of his judgment:' "• •••••• I am satisfied and find it as a fact that by the time the matter was referred to the Minister, such matter had already been determined and duly settled. The determination and settlement on the issue had been effected between Juwa·ta on b~half of the employees ,the respondents and Tazara, the employer, the applicants. There was no more dispute in existence. The Minister therefore assUMed jurisdiction over a non-existent trade ~ispute. The learned judge said he appreciated the provision of section 6(1)(g) of the Security of Employment Act, which provides: 6(1) (g) - The function of the field branch, and in relation to the business for which it is estnblished, la to consult with the employer concerning any impending redundancies and application of any joint agreement on redundancies~ 5 •·?,t was the learned judge's view however, that in the pres0111t case the. redundancies did not become impending until the Council ~ .-.. _.,.,. ,✓ of Ministers had decided on the redundancies. It will here be rec~lled ·that the Tribunal and the Minister were of a different view.· They were .. · "- of the view that once Super Mac ( Super Mariagement and Administration Committee) felt the _necessity of reducing the number of worker~ the employer shoul~ have consulted with-Juwata Field branches before making recommendations to the Board o·f Directors (which in turn took the recommendations to the Council of Ministers). It was basically because of the foregoing that the learned High Court Judge issued the order of certiorari quashing and settLn;r aside the Minister's order. Prof. Shivji made a number of spirited submissions attack1U the learned judge's decision and urging us to reverse the High Court ruling. We are most grateful to both 14arned counsel fer. their obvious industry.in preparing for the anpeal and arguin~ it before use We propose to separate the grain from the dlaff and utilize only such inputs as we find necessary and enough for the disposal of the matters before us •. Prof. 5hivji urgQd that when the matter was referred to tlle Tribunal for inquiry and subsequently the Minister made a decisiOR there~ still in existence a Trade Dispute. He submitted thats proper construction of the Secretary General's letter would net permit the conclusion that the Trade Dispute had been settled. Rather, the letter says that there was no Trade Dispute in existence. Further Juwata does not have to be involved in eve::;x •= Trade Dispute. ·Juwata has to report to the Labour Commissioner a Trade Dispute, and so be involved, only if the action is unde~ Section 4(1) of the Act. If, he contends, as in the present case, the employees act under section 9(A)(1), Juwata does not . have to report and does not have to be involved: It is not a - necessary party~ Section 4(1) of the Juwata Act 1979 indeed provides: "Juwata shall be the sole body representative of all employees within the United Republic" •. • .... . /6._ ' . 6 / / I ~\ P;of. Shivji submitted that this merely meant that there cannot / .. be any other Trade Union in Tanzania • ,The appellants' advocate also addressed us on what he said was the real meaning of Section 6(1) (g) of the Security of Employment Act, ·cap 574. .He supported the view of the Tribunal that the intended' consul ta ti On should have been held before declaring .the redundancieso He in other vP rds. asked us to fault the· view that •· there were in this case no impending redundancies before the time the Council of Ministers approved the recommendation put to them by the Board of Directors. Profo Shivji also reiterated nis earlier submission before the learned judge that the High Court should have refrained from exercising its discretion in favour of the respondent because of their delay of over two months after the award before applying for the order of certiorari .. Mr. Tarimo submitted that Lubuva, J. acted quite prop:rly in granting the order of certiorari and that his decision should not be reversedo The High Court was entitled to rely on the Secretary General's letter to found the view that the Trade Dispute had been / settled. The appellants had accepted their . terminal dues and left./ They cannot later be heard t:: say •c:;,at they were unhappy. Juwata had been involved and settled the Dispute which no longer the~efore existedo The employees had consented to the · settlement, as evidenced by the letter from the Secretary General. Mro Tarimo maintained that Juwata 1§. a necessary party to a Trade Dispute, even if the proceedings are under Section 9A. The basis of the High Court decision -was it~a:i!-ly the issue of jurisdiction. The High Court was of the view that the Tribunal and the MiniE'ter had no jurisdiction as there was no Trade Dispute. Under the Law Reform Act, Act 55 of 1968, an application for an order of certiorari should normally beimade within six months ' of the event, in this case of the High Court ruling. This one was clearly well within the six months and the learned judgP. heard and ••••••• /7. I \ ·• 7 the argument t;1at the applicants had been unduly long 1:°" . "' ~ I• moving the High Court for the order: He took into account what the 1~arn7d author Wade said on the issue, as well as the viewB in • ALFRED LUKARU' s case. Having done so, he was satisfied that the delay o'f seventy days or so, was si'ltisfactorily explained and reasonable. We are of the view that the learned judge was perfectly entitled in his discretion to hold that view and we are not at all persuaded to hold that he erred in doing so. We do not think that the appellants' complaint on this has any merit. We have to consider the rival submissions.whether ·' or not Juwata must be involved whenever the-:-::":! is a Trade Dispute which it is sought to resolve. Quite clearly under Section 4(1) of the Permanent Labour Tribunal Act, the general secretary of a registered trade union of which the employees are members must be involved. Since Juwata is the only possible Trade Union in Tanzania· this would refer to the Secretary General of Juwata. But then (i) The employees would have to be members of Juwata; and there is no proof in the instant r:ase that: the appellants are; and (ii) The provision relates to process under Section 4(1). Taking into account the available evidence on the history of the matter and conside:0. 1-~ the ~;ubrni ssions by learned counsel, it is clear to us that the appellants chose to proceed under section 9A which was added some ten years after the principal· - Act and which in our view/is significantly different from the earlier section and for a different purpose. Section 9A makes no mention of any 'general secretary 1 or Secretary General. Section 9A provides "9A.-(1) Subject to subsection (2), where any trade dispute exists or is apprehended, the Labour Commissioner may inquire into thP. caus8~ and circumstances of the trade dispute and, with the approval of the Minister, ..refer any matters appearing to him to be connected with or relevant to that trade dispute to the.Tribunal and the Tribunal shall inquire into the matters referred to ~ and report on them to the Minister"•· I o~•oeo$•/8. . _,j 8 In view of the sequence of ev~nts, the appellants probably did not have any cho~=e but to proceed under Section 9A which we I / are satisfied gives leeway to the Labour Commissioner and the Minister, as well as the Tribunal_ to go about the matter without • neeiE3ssar,±ly involving any particular party or institution. They need not involve Juwata in the exercise. In the present case, in view of the Secretary General's letter, Annexure A, it is difficult to see how Juwata could have enthused on the matter. Incidentally the appellants' advocate informed the High Court that the Tribunal had taken the trouble to send out Summons to Juwata but·the latter did not botaer. to appear. We aL·e of the view that Juwata need \ not necessarily be involved if proceedings were under Section 9A as the present onesweree The Tribunal did hear Tazara and the Minister made his decision on the basis of the report submitted to him by the Tribunal. We do not think that the complaint that the Minister did not hear Tazara has any merit. Next is the question as to whether there was a Trade Dispute at alle The learned judge was Of course satisfied that there was none in e]~-; stencc:?. Be w;:i s satisfied that the \' Secretary General's letter showed the view that the issue of redur.dancy had been amicably settled "to the satisfaction of \., either party _on the issue. I can see no reason whatsoever for not believing the Juwata Chief Executive Officer on the matter" ♦ Mr. Tarimo of course supports this view, which Prof. Shivji is quarrelling with. The Secretary General's letter was written on 9th March, 1983 in response :::o the Labour Commissioner's written two days earliero Some seven months later and the Secretary General's assurances., the . Labour Commissioner Labour ~fficers; Mbeya and Dar es Salaam, the appellants were complaining and directing (.•••o•eno•/9. - I. f '.,' - .. .._ ,, It 9 .J • ' ' ~ them to inquire into the matter in accordance with Section 9A • ·tt• i's evident that a Trade Dispute was there, brewing and sirnmering .. , al~ .that time. Indeed this is hardly .swr,,rJ.. dn~, in view Of. the I contents of the Secretary General's lett~r. According to the • letter, among other things: (i) Some workers had been to Juwata as long ago as September the previous year, that is 1982, to complain on their own behalf and on behalf of their companions that they were not satisfied with the way the redundancies were effected etc. The Secretary General sent a representative to the employer where following a discussion, the termination terms were improved. (ii) Despite the foregoing the workers still complained that they had been ill-treated (iii) 'Very unfortunately', the Secretary General's office could do nothing, Juwa:tr:1 could not declare a trade dispute, as they found nothing wrong with the employers' action. The 'pande zote mbili' referred to in the panaultimate paragraph must, in the context, be a reference to Juwata and Tazara, to the exclusion of the employees. In other words Juwata·desisted from proceeding under Section 4(1). In our view what efforts were expended to resolve the matter had failed. The dispute was existing and persistent and the matter was proceeded with under Section 9A, which was an alternative route, which did not nece~sarily required Juwata involvement and participation. We find it difficult to agree with the learned judge's view that there was no Trade Dispute ift existence. The premise for hOlding that the Tribunal and the ••••••oo./10 • • I . 1 . I, 1f) Minist&r had no jurisdiction, and had therefore acted ultra vires, pas~ tleref~-re crum~led. · We are satisfied that a Trade Dispute flid exist and therefore there was no want of jurisdiction. The Tribunal and the Minister opined that the consultation needed under the Security of Employment Act should have been done (1) with the Juwata Field BranchQs (ii) When Super Mac had decided to recommend redundancies to the Board ;of Directors and not after the decision had come down ' from the Council of· MinistJrs. Because that was not done - as MAYNARD NYAGAWA the· Tazara Workshop Juwata Chairman was found to have conceded - the exercise by the Council of Ministers was void ab initio. We think the requirement of prior consultation with Juwata es Field Brancl:l.should be beyond controversy. Some consultation was done but the issue debated is whether it was done with the right parties and, more esp~cially, at the right juncture. Juwata District Heads were informed by REUBEN SWEBE the Regional Manager about the Council. of Ministers' decision. This was to inform them of the decision and if there ,:as any 2onsul~t1on at all it must have been with regard to implementation. Once the Council of Ministers had made the decision it was,in our view, beyond the province of consultation, meaningful consultation, in terms of section 6(1)(g) of the Security of Employment Act. According to the Concise Oxford Dictionary to consult is to take c;:ounsel with a person or to seek information <)r advice from him • •• ., ••••• /11. L ,. \ . . - • ,, ' 11 • We me\1.tion this because the learned judge dealt with the issue fnd his opinio~ on it was one of his bases for holding that the 1 TJ:1ibunal and the Minister had erred. This ihvolved the t:orrectness '~r otherwise of the interpretation of a statutory provision and we are satisried that the one made by the Tribuhai was the correct one. As noted; there was also .some argUemt as to wheh a redundancy ' becomes 1 impending 1 • Ih the present matter the Permanent 4•pour Tribunal held tha·t the redundancy became • impending I at the Super Mac stage. The interpretation by the Tribunal was not open to challengebefore a Court of Law. It was one of the bases of a finding in an award and lt is final and conclusive ih terms of Section 27 ( 1) of the Permartent Labour 'rriotihal Aet, See South East Asia Fire Bricks V, Non-Metallic Mineral Products Manufacturing -Emp'.l,oyeeS Union And others·: (1981.) ~-G• · '.363. It was also canvassed by Mr. Tarimo, that it was in any event no appropriate occasion for the Minister to order reinstatement of the workers: The Permanent Labour Tribunal Act confers no such powers. The ·Minister acted under Section 9(B) (i) which r'eads:. !IUpon receipt of a report made by the Tribunal in respecf of any matter rP.ferred to it under Section 9A the Minister shall make) a decision in relati<m t-0 the matters contained in thP. report; and that decision shall be final". It is Mro Tarimo's submission that the Minister could only make a decision and not an order under that section and that, in any :event, he could not· order reinstatement. Prof. Shivji thought that view ridiculuu~ and preposterous. We only think it untenableo We can see no_ dist:i_nction between a: decision and an order -in the circumstances, once it is ,incorporate.d in ,the award. No where in the Act do we find that the Minister is precluded •o•ooooc,/12. 12 I , £.._J • f,rorn ordering reinstatement: The decision by the Minister would ..., be based on the report made to him by the Tribunal after the Tribunal had conducted an inquiry in regard to the Trade Dispute. In the instant case the Trade Dispute 1 \Jt I/. is\ • • as wide as thato wa. s about redundancies and termination. A Minister's decision \ ~nder the section becomes an award if registered, as this one was. The, very essence of this Trade Di~pute was jobs 1 continued workinq by the appellants. Mro Tarimo. submitted that the Minister is only empowered to order reinstatement under Section 27 of the Security of Employment Act but not under Section 9B of the Permanent Labour Tribunal Acta As we have already said, we are of the view that the Minister has the power to order reinstatement under Section 9B. In the result we are satisfied that the learned judge erred in issi:ing the order of certiorari quashing the Minister's decision. We accordingly reversA the High Court Ruling and uphold the decision of the Minister for Labour and Manpower Development .. As regards costs, as we observed earlier, a number of pages were missing and some were interposed. We award the costs of the appeal! to the appellants excepting the costs of preparation of the record. Before we end we · wish to put it on record that neither in the proceedings in the High Court, nor during arguments before us, did we find any evidence or persuasion to support Ground 8 of-the Memorandum of Appeal, that "the Honourable Judge misdirected himself by tak~ng into account irrelevant political and policy factors in the evaluation of evidence and drawing inferences of law". We are satisfied that the learned judge strictly and properly restricted himself to matters before' him.. To differ with him is a different i·--- 't • \. ·' _, ,., ~ matter. r, DATED day of March, 1986. Lo M. MAKAME JUSTICE Op APPEAL R. H. KISANGA JUSTICE ,OF APPEAL - ... IJ ,·, \ .___, _.. ·· '; _,/ -- - . , __ ,., _./· -I- .f;t" .. ~ ...- ... ..... I .' (J., H. MSOFFE) DEPUTY REGISTRAR COURT OF APPEAL OF T1~NZANIA.