20171027 TZCA Dar es Salaam 1

IN THE COURT OF APPEAL OF TANZANIA . .AT.DAR ES SALAAM ~. (CORAM: MJASIRI, J.A, MWARIJA, J.A And MWAMBEGELE, J.A) CIVIL APPEAL NO. 30 OF-20-13-.· · . ·, . JANE CHABRUMA ................................................................... APPELLANT

VERSUS 1. MINISTER FOR LABOUR AND EMPLOYMENT I ,· .

2. THE ATTORNEY GENERAL . 'i ................ RESPON°DENTS (Appeal from the decision of the High. . Court . .. . of Tanzania . ~ at Dar es salaam.) .. (Juma, J., Mwakipesile, J. And Munisi, J.) dated the 18th day of September, 2012 in Misc. Civil Case No. 34 of 2011

JUDGMENT OF THE COURT 1 51h June & 3rd November, 2017 MJASIRI. J. A.: three Judges; (Juma, Mwakipesile and Munisi,· JJ.) in respect of a petition section 35 of the Employment and Labour Relations Act,_i_o04; AcJJ1b~6 of~__ :.__:_~._, ------- --~- .... --- -----------~--·-~ . 20:04..(th.e Act), Und@i:-S@GtiGR 3S~ef tt-le-Act-unf-ai-r -termination-·of-employment ~ .. ·.. 1 _, .. -·-. -- -- .. _ _, _ ·- --~. ::under·sufi~·iiart E·=o(.Pa~,t- iii~c;:f the~Acr·~lJ~?i~~t-~:s-~lifb\~1~,~i,;~-ie~ ·t;·~;./:1~;;-:_::_:::.,:::: .- than six (6) months employment with the same employer. The. petition to . .. . ' ~ . the High Court was a result of the decision of the High Court Labour Division in Labour Revision No. 159 of 2010 between -the applic-ant and National·· Microfinance Bank (the Bank). The applicant-referred a dispute in respect of unfair termination to the Commission for Mediation and Arbitration (CMA) following her termination by the Bank, while s_ti_l __ µoder the period of six (6) months probation. Being aggrieved by the arbitrator's d~c:,i~i_Ql.'1. 9r,19_ ~ward, she sought to revise the decision in the High Court Labour Division. The High .. Court (Rweyemamu, J.) confirmed the arbitrator's decision and held that the claim of unfair termination could not succeed in view of the provision of·· section 35 of the Act. According to her, the High.. .Court had no power to .. determine

whether or not section 35 of the Act is unconstitutional.. , • The appellant wanted_ the High Court. to. make- a --declaration -that -· · ·_ · - -· ···-· • •• • • • • • • •- • • • • ' •••• ••v,,, "<-. ~ the basic rights enshrined in Article 13(1), (2), (~), (a) (b) of the 1977 __,.. __-~--~--~----:----- ' contended that section 35 of the Act .is _notonly-.unr-eas0nable ·as· it abrldg~s-. · -------- .... ---· ... . ··· .... ---··-•· --- ~-:- ------~· . 2 the appellant's constitutional right to be hca,:-d,- but also denied the petitione·r -· of her right to equality before the law, and her access to justice. The respondent raised a preliminary point of law contending that the petition is bad in law and should be dismissed. The High Court sustained the preliminary objection and dismissed the petition in its entirety. The High Court was of the view that it cannot grant any of the basic rights reliefs enumerated under Articles 12 to 29 of the Constitution where a party has other means of redress under any other law or when the application is frivolous or vexations. The High Court was satisfied that there exists an adequate means of redress through a means of appeal to the Court of Appeal of Tanzania against the decision of the High Court Labour Division, in accordance with section 57 of the Labour Institutions Act, 2004. Being dissatisfied with the decision of the High Court in

dismissing the petition the appellant has filed an appeal before this Court~· The appellant presented one ground of appeal which is reproduced as -----1Ufl-8€f~:-------_:_ _ _ _ _ _ _ _ _ _ _ __:._ _:_._ _ _ _ _ __ "The honourable trial Judge erre1Jn la_w arJ9 factjn __ . ____ _ holding that the appeal was and still is the adequate 3 .. -~,· ....... -~ --~~ - ,neans of redi:ess to the constitatlvnattty o(settioi1 · 35 of the En1ployn1ent and Labour Relations Ac( 2004. // The appellant prayed for the following __ o.r:ders: _- 1. The decision of the High Court be quashed and the petition be restored on merit. _ 2. Costs of this appeal. . . . . At the hearing of the application, the app~llant was ~epr~senteg by . Mr. Evans Nzowa, learned advocate . .No appearance was entered for the_ 1st _and 2nd respondents though they were duly served with the notice of hearing. Given the fact that the 1st and 2 nd -respondents were duly served, the learned advocate for the appellant asked the Court for leave to proceed with the hearing in the absence of the respondents under Rule 112(1) of the ,-·-----· . .... . . Co~r:t _gf.hppeal R.vles,.2009.:(the_Court.RulesJ7...:.wbich. was duly..graRteEl-eY--- :_-,:_.-- - •·, -·;•··•' .. _ ·.•,•. . . _,: ,._.· _.· "the tciurt, in. view··ot the absencE/ci the -r~spo.ndents who ·were duly served - --~--~•••• - . - . - • . - : : -• . - . • , : -

: - - • . • : : ~--• r~r • 4 On presentation of H :: appo.al, Mr. Nzowc.1 asked the Cowt to adopt the appellant's written submissions. He asked the Court to interpret section 35 of the Employment and Labour Relations Act. In his Written submissions, Mr. Nzowa challenged the decision made by the High Court sustaining the preliminary objection. The learned advocate for the appellant did not agree with the conclusion reached by the High Court that an appeal was an adequate means of a redress of the unconstitutionality of section 35 of the Employment Act. According to him what was at issue was the constitutionality of section 35 of the Act. The appellant was not challenging the decision of the High Court. What was complained of was the refusal by the High Court to . decide whether or not section 35 was unconstitutional. An application for revision and/or an appeal to the High Court Labour Division, has no original jurisdiction to determine the constitutionality of section 35 of the Act. - .. - -- . ·- ' - -- - . ~- -.~ .,____..,. ·- According·to hirn·tne· issues of uriconstitutfonal1ty and contravention of Articles 12 to 29 of the Constitution is supposed to be heard by the High -~-----.---- ...... -_- Court under Section ·-4 of the Haslc Rights·and ·outies-·Act Cap·:'{. R.E:-2ooi. - 5 .. (the Basic Rights· Act). "fhe--High ·Court-was:ther~efore .the ·ajj-pfoprfafe-c6urf ......

. to hear the complaint under sections 5 and 10 of the Basic Rights Act. We on our part, after going through the record of appeal and the·· submissions by counsel, are of the considered· view that there is only one - ., . ' .. . ... pivotal issue·for determination and decision in this appeal, namely whether or not an appeal is an adequate means. qf a ,redress Jn respect of the complaint on the unconstitutionality of section 35 .of the AcL Section 35 of the Act provides that:- "The provisions of this Sub-Part shall not apply to an . - employee with less than 6 months/ employment with .. ,- the same employe0 whether undef·iJiie·· 6r·inore -:~:. . .---· . · - . contracts. // Section 35 of the Act exempts employers from complying with the - . ... . . ,. ·---·•• provision· of· Sub·-Part E of the Act on unfair terminations in respect of · - - · em plbYee5Witli~l~Si than SiX (6) ~O~h~ ;;;:;;;,o;;;E~t7:-- -:=~~--:-:;: ~-~-:. - subsection ---·· .,. 2 of sectiQ0._8. oLthe B~sic Rights~Act; whieh-provides·that:- · '. ---· - 6 -. ~ ,_ .. ~ .• :-"8 (2) The High Couii shail ;7ol"-'i:i~i-tisi7ts poi;iiei-s· under this section if it is satisfied that adequate n1ea11s..ofred1~ess for the contravention alleged are - .,J :_-'-'-•~.: .• ••• •. • --~--~·-··::'""';"'"'. or have been availaqle to th~--P~!"S..Q.n C.Q!JiernGd under any _other la~ or that tl1e application 1s. merely frivolous or

vexatious. " The High Court was of the view that section 8(2) of the Basic Rights Act is couched in mandatory terms. The High Court shall not exercise its _ powers to hear a petition brought under the Basic Rights Act, if it is satisfied that there is an _adequate means of redress for the contravention. According to the High Court, this means of r~dress is adequately provided under-section. ·· . 57 of the Labour Institutions Act, 2004. Sect16nS7 ·p_royig~s _as "follo:ws::.::·_. _.:. ·-_ ..~-- ':4ny party to the proceedings in the Labour Court .. - ... --··-·. -- -. -----·-· ---.---------·· . . . . - .. , Court of Appeal ·oFtanian,a on apoint" ;fla~·-;;/y. ;,,7.-" . ·.., ---------·-------------- -··· . ,., .. .-- -,--~-------·····-· _- .. . ...,....._ ::_~,............:....;_::......:_:_; " -·•·· ---.--.-.--.. -:-:--::~ -.'"' -_-_...,....._-_ .. --. :... ·..~·:_:.~ .... _·..,:.:ln_-.djsmissfr1g:...th~;petitio(lr-t1:re-4=!igll- ·cernt.:.-srarecl~l:ffa~r~tfie:-oeff-ec:t:·.of-c,~---···-· ·-•·:- .. . ... -·----- ------------- 7 29 of the Constitution where a party l1as other means of redress . . .. -· ,. ----- ,..._,..,.. __ .... - -- -. -- ·- .~- . . ~-·---".- --•·-- ~. . -• _,, . ·. · · Upon reviewing·· the record·· and·:: tffe~~--st:i'pfni?5.ions···':'ma~e·-5y .:ti1tt''.--..~. ·~·· . appellant's advocate, we are of the considered view that the High Court

was correct in its interpretation of section 8(2) of the Basic Rights Act. It is evident that section 57 of the Labour Institutions Act provides an adequate·· means of redress if a party is dissatisfied with the decision of the.High Co.urt;·· on any point of law to the Court of Appeal:-·The~appellanthas·not·done so·:·-· ·· · She has failed to take advantage of the appropriate remedy available. Given _ · the dear legal position, we cannot in any way fault the decision of the High Court. According to Halsbury's Laws of England, Vol. 10 paragraph 314 Jurisdiction is defined to mean: ·•··-·· --4-~-----··-=· _.. ,·,~·----:·-~-~--~--~----♦ .... _ _. - - . : · • •~ - · - ' . -• • • • • • -~-~- •• _--:--_~_·.-.-~--:.:.· ~ • • - - ----,_-• ~--:::::.-- -:---:-. • -- - --- or -~• •n • ---~--<,,-- -• •~• • "The authority which a Court has to decide cognizance of matters ~- prescribed .. in a formal ·--- -· . --- ---- -·~-- ~ .. _::_N. _ ,:•~•• -•-• • .,._,_ •--~~ 0-•- ... ,,c_,---,.•~ •--~~• - - - - - • -• • ••• ••· • - • - ~ - • - . • • _ , ....... ,,....,~. ~ • • .,. - .... ~--·- .... - · ·· -way for its decision;-Y/ieiiiiiits of this.aµt!Jqrfty . _ 8 -. are -- i111posed by . the statute; charter or commission under which the Court is constituted, and ,nay be extended or restrained by similar means. A limitation may be either as to the kind and nature of the claim or as to the

area which jurisdiction extended, or it may partake of both these characters." [Emphasis provided]. As the remedies available under the Act have not been exhausted by the appellant, the High Court was right in upholding the preliminary objection. The door to file an appeal to this Court was open to the appellant under section 57 of the Labour Institutions Act, which enables the appellant to file an appeal on a point of law to the Court. This option was not used by the appellant. Instead, the appellant took the-Step of filing a petition in the _~igh _S:()urt unqer the Basic Rights_ Act. ~:- ·=-·-·=-:·____ - In the case of Attorney General v Lohay Akonaay & Another ---- (1995) TLR so, ·this court made-the followin{fobservations at page 92:- - ,. ··- - - - - - - - - - - - - - - - - - - - · - - - - ------------·- -- - & & ~ - - - - - ~ · - · -- 9 ".. courts -,1vould not norn1ally entertain a ,natter for vi1hich D speei)i' /jrwn has been established unless the agglieved party can satisfy the Court that no appropriate remedy is available in the special forum. // See-Tanzania Revenue Authority v Kotra Company Limited, Civil Appeal No. 12 of 2009 and Tanzania Revenue Authority v New Musoma Textile Limited, Civil Appeal No. .93 _of 2009 -- both (unreported). In the instant case, there is no proof thatno appropriate remedy could be obtained from the process of appeal from the decision of

the High Court,_ Labour Division. In fact the appeal step to the Court of Appeal as provided under section 57 of the Labour Institutions Act was not utilized: The law is settled. Where there is a statutory remedy prov1d1ng for a right to behe_a_r_g_-_ang_9 r.ight 9.f appeal, -a pc:1rr{cannot12ursne__ i!s~ rights under - -·• the Basic Rights Act and cannot complain that his constitutional right to be heard andhjs_.right of appeal- has be€n ~nfringed-.--He-i-s--fequired-t-o -pursue-- -- his statutory rights first, and in the instant case, to pursue::-his appeal to the - __ -_- -- -- - -••· ------------ - - - - - - - - - - . Court of Appeal. 10 In Athumani Kungubaya & 482 Others v Presidential .- _ .. J~ar.astatal Sector-Refor-n1 ··Gom-mission~and-Anothe-r,···(ivil -- .. - ' . /.Xppec11-No.~·,.··.-~---·•:-... . :· ._ -· ,. -• . - . 56 of 2007 ( unreported), the Court und~rsc:ored ..the need to ex~au~t all.:_.._ • • ' • ••~ •-• • ,_.,_ ••----••-••••• •• •• • r' • ·• .. . .. . .. available statutory avenues for appeal before seeking the right <?f. appeal_ . guaranteed under Article 13 (6) (a) of the Constitution of the un-ited Republic·· of Tanzania. It was stated thus:- 11 ••• It is at once clear to us that the·· constitution provides and guarantees the individual right of appeal and being heard fully. The further question · arises as to how the right to appeal can be

a(:hie~(3-_d___ ,.. _ ._.__ , ._ in this case which is the centralissue in this appeal. In our View. The answer is hot far. to seek. . . As. ..seen . from the first part of sub-article 6(a), the right to ·· appeal would be ensured by .approp(/?J_te P(C?C..t!Q.l!IJ:J!~~:_· __ ::--.. -~ : _: ::::.-: ·:·-~......~ ·_ -: · .,. -··· _,,__ .... .. --. , ~--········~~---- .. ---- ----·· would be understandably by way of appropriate -. - -. ·- ., . - -·~ ' ... - ... -· ------·· ·- . ~-··----.- . ' ~ ~ 11 .. ··In the instant case, it is sectior, 57 of the~-Lal)ou,: Ir1st:iflJho1is"Acf w}iich provides the way forward . . __ _ _.[n the result_ we. find the.,ap.pea.l. without any, mer~t-a-11d;we-accordir-igl-y- ----···-· ··· ---- - dismiss it. We make no order as to costs. DATED at DAR ES SALAAM this 27 th day of October, 2017. S. MJASIRI JUSTICE OF APPE-AL--·· ·--- .. ··.-·,_ .· .•"t-·•· ,.,,.._ ·'" . A.G. MWARIJA JUSTICE OF APPEAL . J.C.M. MWAMBEGELE JUSTICE OF APPEAL. I certify that this is a true copy of the 6riginaL __ · • • ••:. •o ••• • -. . . . .. • • • ••• ,~ • • •• ..., • •, - • a •>· • • • •- •• • • • ~ • • - • -•- ••• • ••~ • - • • _·, : ·~· - ,- , .,., -' - .. _,_ .·. - -·· ~, . . ~ - --~ ~: ..~·-·. ·:;:~;.~::-::_·_ ~-~:-_·_.-;..~~~:.;-. - =-- :;.~.... . .. . . ,. ,-4'-- ":' - ~--~~:,...._ -,,, ..--,., 12