20171027 TZHC Dar es Salaam

IN THE COURT Of APl;>EAL OF TANZANIA AT DAR ES SALAAM . I -{CORAM: MJASIRI, J.A, MWARIJA, J.A And MWAMBEGELE, J.A) i CIVIL APPEAL N0. 30 OF 2013 . I JANE CHABRUMA ■ ll ■ P. ■■ 11111111111a•••••••11••••••••••11 ■_11 ■••••••••••■■ 111111 ■■ 1 ■ 1 ■■ 1 ■■■ 1 ■■■ APPELLANT VERSUS 1. MINISTER FOR LABOUR AND EMPLOYMENT·; 2. THE ATTORNEY GENERAL ................ 1RESPONDENTS I (Appeal from the decision of the High Court of Tanzania at Dar es sa:laam.) I I (Juma, J., Mwakipesile,i J. And Munisi, J.) I dated the 18 th day_of September, 2012 1 '" Misc. Civil Case No. 34 of 2011 JUDGMENT OF THE COURT 15th June & 3rd November, 2017 MJASIRI, J. A.: This appeal arises from the decision of the High Cdurt constituted of I three Judges; (Juma, Mwakipesile and Munisi, JJ.) in respect of a petition I filed by Jane Chabruma asking the High Court to declare as unconstitutional section 35 of the Employment and Labour" Relations Act, 2b04; Act No. 6 of 2004 (the Act). Under section 35 of the Act:unfair termination of employment 1 I ! I ~ under sub-part E of Part III of the Act d~es not apply to ~mployees with less than six (6) months employment with the same emblo~er. The petition to I I the High Court was a result of the decision , of the High, Cdurt I Labour Division i ' in Labour Revision No. 159 of 2010 between the appliicant and National • ! I I Microfinance Bank (the Bank). The applictant referred a dispute in respect of unfair termination to the Commission fdr Mediation and Arbitration (CMA) I ' ' following her termination by the Bank, while still under the period of six (6) I, II 1 months probation. Being aggrieved by t~e arbitrator's ddcision and award, I she sought to revise the decision in the Hifjh Court Lab~ur pivision. The High Court (Rweyemamu, J.) confirmed the ar~itrator's decision\ and held that the . i claim of unfair termination could not su~ceed in view o~ the provision of . i section 35 of the Act. According to her, !the High Court had no power to ' I I determine whether or not section 35 of thb Act is unconstitutional. I I I \ The appellant wanted the High Court to make a declaration that employees with less than six months' empl oyment are also entitled to enjoy 1 I ' the basic rights enshrined in Article 13(1;), (2), (3), (a) 1(b) of the 1977 Constitution of the United Republic of Tanz~nia. The app~llaht in her petition i, I contended that section 35 of the Act is not ·only unreasonable as it abridges I I I I 2 I . I ' I • the appellant's constitutional right to be !heard, but a1Jo d;enied the petitioner of her right to equality before the law, Jnd her access tdl justice. I ! The respondent raised a preliminJry point of laiN jontending that the ' · 1·: I I I ' I petition is bad in law and should be dismissed. The High <Court sustained the · l I preliminary objection and dismissed the petition in its entirety. The High \ . ,: . , I Court was of the view that it cannot gtant any of t~e ~asic rights reliefs enumerated under Articles 12 to 29 of ~he Constituti0n khere a party has I 1· other means of redress under any oth~r law or wh~n the application is frivolous or vexations. The High Court !was satisfied that there exists an I. , II adequate means of redress through a me~ns of appeal t\o th\ e Court of Appeal of Tanzania against the decision of thb High Court Labour Division, in accordance with section 57 of the Labour\ Institutions ~ct, 2004. Being dissatisfied with the decision ~f the High CourJ in dismissing the 1 ; · I I petition the appellant has filed an appeal before this Court. . I . . : I The appellant presented one ground of appeal wHich is reproduced as '· ! under:- ,, I "The honourable trial Judge ekred in law and fact in i. I I holding that, the appeal was ar still is the ildei,;uate 3 I I i I. I I ~ means of redress to the cdpstitutiona/i~ o~ section , I 35 of the Employment andfi Labour Re/rirs ' Act; 2004." I , The appellant prayed for the following orders: i 1. The. decision of the High. Court be quls~ed and I ' the petition be restored ob merit. 2. Costs of this appeal. · I j' At the hearing of the application, th. appellant wls ,epresented by Mr. b): - I I Evans Nzowa, learn·ed advocate. No appearance was entered for the 1st and 1 1 I I nd 2 respondents though they were duly s'rved with the nJtice of hearing. I ' l Given the fact that the 1st and 2nd · ~espondents wer. duly served, the learned advocate for the appellant asked. ~he Court for 1laJe to proceed with the hearing in the absence of the resp+dents unde1 RLe 112(1) of the Court of Appeal Rules, 2009 (the Court Riules), which wal duly granted by l I the Court, in view of the absence of the r~spondents who ,were duly served with the notice of hearing. 4 . ! I On presentation of th(:~ appeal, rylr. Nzowa asked the Court to adopt the appellant's written submissions. HJ asked the Cou~ to interpret section I . ; I• 35 of the Employment and Labour Relations Act. Ii I In his written submissions, Mr. Nzowa challenged the decision made · I I I , by the High Court sustaining the prelimi1ary objection.. Tthe learned advocate for the appellant did not agree with the f I nclusion reached by the High Court that an appeal was an adequate means ~fa redress of thj unconstitutionality of section 35 of the Employment Act. 4ccording to him what was at issue f was the constitutionality of section . 35 cbf I the Act. The appellant was not challenging the decision of the High Cou~. What was coniplained of was the . I I refusal by the High Court to decide \whether or not section 35 was unconstitutional. An application for reviJion and/or an abpeal to the High + I I I I Court Labour Division, has no originkl jurisdiction determine the constitutionality of section 35 of the Act.. \ I According to him the issues of uncof stitutionality an1 contravention of Articles 12 to 29 of the Constitution is s~pposed to be hfard by the High Court under Section 4 of the Basic Rightsl,and Duties Act [ap 3, R.E. 2002. 1 I I I I I ,. 5 \' (~he Basic Rights Act). The High Court was therefor~ tll e appropriate court I I to hear the complaint under sections 5 and 10 of the' Ba'sic Rights Act. We on our part, after going thrLgh the recLd of appeal and the submissions by counsel, are of the con~idered view that there is only one 1 pivotal issue for determination and deciiion in this appell, namely whether or not an appeal is an adequate means of a redrlss in respect of the I complaint on the unconstitutionality of section 35 of the Act. I Section 35 of the Act provides thatf- 1 I "The provisions of this Sub-P., rt shall not a'pl I '.ll I , to an employee with less than 6 mqnths' emp/oymelht with . .I . I the same employe0 whether under one o more contracts." Section 35 of the Act exempts employers from co mplying with the 1 1, I I ' I provision of Sub-Part E of the Act on unfair terminations in respect of I employees with less than six (6) months e)mployment. I I The High Court in sustaining the Ipreliminary Fbjrction relied on subsection 2 of section 8 of the Basic Righf Act, which pro\,ides that:- 1 6 I . I' "8 (2) The High Court shall bot exercise its ppwers under this section if it is )jtisfied that ad+uate meansofredress for the coJravenlion a//egejd are • I ' I I ! I or have been available to the person c0ncerned under any other law, or ~at the appJaJon is 1: i' merely frivolous or vexatious. " . l I: It ,, The High Court was of the view th~t section 8(~) of the Basic Rights Act is couched in mandatory terms. ThJ High Court ihJII not exercise its ; I I. i ' 11 ' ' powers to hear a petition brought under tre Basic Rights ~ct, if it is satisfied that there is an adequate means of redre~s for the contraJention. According to the High Court, this means of redress is rdequately p~ov1ed under section 57 of the Labour Institutions Act, 2004. Section 57 proJid Is as follows:- '!4ny party to the proceedinJ in the Lajur Court may appeal against the decisi1n of that calrt to the Court of Appeal of Tanzania oi a point of laL ln1y. " I In dismissing the petition, the Hig~ Court stat1 tt,at the effect of subsection (2) of section 8 of the Basic ~ights Act is that the High Court 'f,I . I I 7 I: cannot grant any of the basic rights refits enumerat~d !under Articles 12 to 29 of the Constitution where a party ha~ other mean~ o~ redress. I . Upon reviewing the record an~ the submi~siLs made by the ,, appellant's advocate, we are of the considered view t1at the High Court was correct in its interpretation of section ~(2) of the Bas1.c Rights Act. It is 1 i I evident that section 57 of the Labour Institutions Act ilprovides an adequate 1: . I means of redress if a party is dissatisfied jwith the deci~io1 of the High Court, Labour Division. Section 57 opens the do~r to a party tp bring his grievances I . . :' I on any point of law to the Court of Appeal. The appellant has not done so. I ' I She has failed to take advantage of the abpropriate re1edly available. Given the clear legal position, we cannot in an)way fault the dJcision of the High Court. i I I . According to Halsbury's Laws of ~ngland, Vol Jurisdiction is defined to mean: I l paragraph 314 i. I "The authority which a Court has to decide i: matters that are litigated refore it ori to take cognizance of matters pre~cribed in a tdrma/ way for its decision. The li~its ofthis althlrity 8 I I i are imposed by the statute; ch rter or commission under wJch '· ! the Jojrt is I i I . . 1· ' constituted, and may i! be extended or restrained by similar mea½s. A limitatiol may be either as to the kind an~ nature of fhe claim I I or as to the area which jurisdiction extended, , I I or it may partake of both these characters." 1: [Emphasis provided]. As the remedies available under th! Act have not bken exhausted by the appellant, the High Court was rig!ht in upholdind the preliminary objection. The door to file an appeal to this Court was Jpeh to the appellant under section 57 of the Labour Institution~ Act, which Jnables the appellant to file an appeal on a point of law to theJourt. This opto~ was not used by the appellant. Instead, the appellant tooj the step of fillini a petition in the I' 1' ' ' ; High Court under the Basic Rights Act. I- In the case of Attorney Generali v Lohay A~onaay & Another (1995) TLR 80, this Court made the follo~ing observati I nJ at page 92:- . I; I Ii 1! ! 9 ".. courts would not normally entertain a a, er for which a special f:;rum has been establishkd unless the aggrieved party can saJs/y the Cowl tlilat no appropriate remedy is avai/abJe in the specJ f@rum. " See-Tanzania Revenue Authority v Kotta Com~ajy Limited, Civil Appeal No. 12 of 2009 and Tanzani Revenue Ajthority v New Musoma Textile Limited, Civil AJpeal No. · 3 of 2009 both (unreported). In the instant case, there is no proo1·that no appr I priate remedy could be obtained from the process of appeal fr, m the decisiJn lf the High Court, Labour Division. In fact the appeal step tb the Court o/ A!peal as provided I I . under section 57 of the Labour Institutionk Act was not utilized. The law is settled. Where there is a statutory reme y providing for a right to be heard and a right of appeal, a party cannot pJsJe its rights under the Basic Rights Act and cannot complain that his consttJional right to be heard and his right of appeal has been infringed. He iJ required to pursue his statutory rights first, and in the instant case, to purslue his appeal to the Court of Appeal. 10 ll • In Athumani Kungubaya & , 482 Others v Presidential I! . . i: ' ' Parastatal Sector Reform Commmssibn and Anot'her-, Civil Appeal No. I . I ·I 56 of 2007 (unreported), the Court un1erscored thel need to exhaust all available statutory avenues for appeal l:Jefore seeking t~e right of appeal guaranteed under Article 13 (6) (a) of the konstitution Jr t~e United Republic of Tanzania. It was stated thus:- '' ' ' I· I : 11 : i ••• It is at once clear to U$ that the constitution ,. I ',../ prov1ues and guarantees '" '"j1e mu1v1uua LI . I ng ,-1·. ht o f ,,..1 appeal and being heard full) The further qJestion I 1, I arises as to how the right to appeal can be iacnieved . L,'"h1s 1n . case w:h1c . h 1s . LI1-J..,e centra 1-1 I issue . ' m .I I / . L,'"h1s appea . I 1 I' I 1 I ' . I' • In our View. The answer is nd_t far to seek.' As se.en : II from the first part of sub-art{cle 6(a), the, right to 1 I! . I i appeal would be ensured by appropnate procedural ' ! I' I machinery put in place by thJ State Autho!iity. This r I would be understandably bY1 way of app/O!friate I : legislation. '' 11 .1 ! I I • I In the instant case, it is section 57 iof the Labou Inritutions Act which provides the way forward. . , . I j In the result we find the appeal without any mefit •nd we accordingly I I I dismiss it. We make no order as to costs I I !' I DATED at DAR ES SALAAM this 27t7 day of Octooer, 2017. 11 ·1 . I . s. MJASIRI I JUSTICE OF APPEAL I A.G. MWA~IJA JUSTICE OF APPEAL I I' I J.C.M. MWAMBEGELE JUSTICE OF APPEAL J I certify that this is a true copy of tH;e original. . I: I 12 I I 'J I ('