19880216 TZHC Dar es Salaam

IN 'l'fu, HIGH CuURT uF TANZ,hNIA AT iJi1H .c;b bALAAM MI::iC. CIVIL -CHU.SL NO. 74 0F 1987 JUJv1UIY.1-t YA WAFANYAKAZ.I WA 'l'ANZ,ANIA (·JUwA'I'A) •• •••••••••••• ~ •••••••••••••••••• -.-APPLICANT and • hANAGr.:Mi;N'l' UF HU'l',t;L AFrtICAN lJSM •••••••••••• HEbPONDENT HULING MAINA, J. An.application for an ortle~ of certiorari to bring into this court and quash the decision of the Permanent Labour Tribunal was filed in the court. by the Hotel Africana. When the matter came up for he&ring, Mr. K±susi, learned iounsel who represents JUWf-1.TA argued three preliminary objections, urging ;_ the court to dismiss the application. 'rhe first objection raised is tl:iat the heading of the Chamber Summons is 'an application for le&ve to apply for an order of certiorari. It was Mr. Kisusi's argument that since leave had been granted already, the application now beiore :the court should be for an order of certiorari anct.not foi leave to apply. Mr. Kisusi said, however, that he would have no objection if the counsel for the applicant sought an amendment ' to the chamber summons. Jv1r. La!Eha, learned counsel for t·he applicant, conceded thai the chamber summons should·be for ·an order of certiorari and not for leave to apply. Learned counsel therefore asked for the heading of the Chamber ~ummons to be amended accordingly. I have read the proceedings in this matter and I noted that .the application for ieave to apply for an order of certiorari .was heard and granted by this court on 22nd October~ 1987. The present application should therefore be for ., an order of certierari and not for le~ve ~ r - ~ to apply. Since Mr. Kisusi hcts no objection, the chamber summons is accordingly 11 amended t by deleting the words for leave to apply." The sec and paint raised by Mr o Kisu~i is that the application for a~ order of certior~ri to quash the decision of the-Permanent Labour Tribunal should be.made by the Republic as-~ nominal applicant. Mr. Kisusi cited two cases decided by the East African Court of Appeal. In Mohan1ed Ahmed v. R. 1957 EA.·523 the Oourt of Appeal .said at paga 524 as follows:- I L •••• o_/2. - 2 " •• The appellant's advocate appears to have failed entirely to realize that prerogative orders,'like the , old prerogative writs are issued in the na~e of· the Crown at the instance of the applicant and are dir•e(Jll(;'ed to the person or persons who are c.omply therewith ..· Applications for such or-ders must be intituled· an:d ·· served ace ordingly. '' • 1.'1.,_ 'i'he above passage was followed in ti1,~~;'~a.~e~- case. 01/ Fgr'me.rs. · Bus service and others v. The 'l'ra~f1.t?ort·~j;i~;:;;;;_'~g_ t.it¥~e:1~-Tribun~1 · • ; •~ ,. 'J ! . • ', ...0. . , I 1959 K4. 7?9·, in which the Court o:f'Mppeal ordered that the· notice ' of appeal and the other documenls shcula be amended accordingly so that the Crown appeared as the appellant~ In the former case, • that of Mohamed Ahmed·the l!ourt did not dismiss the appeal. but . proceeded with the appeal notwithstanding that the Crown was not the· applicant. The appeal was then dismissed. It was Mr. Lakhats submission that the two decisions were made by the Court of ApReal before: this country became a Hep\lbl~c and therefore the de.cision to make the c;:~wn the applicant is_ not relevant or applicable to us now. The -two cases cited by Nr. Kisusi originated from U.ganda and Kenya respectively. 'l1he_y were decisions made be-fore independence,_· when we were under the British Cl,lonial rule o .So clearly the term "Crown" does not apply to us as we have been a Republic since 19620 F'urthermore, prerogative orders of certiorari, prohibition and mandamus are issued by the High Court by virtue of Section 17 (2) of the Law Heform (Fatal Accidents and Mis~ellaneous Provisions) Ordinance Cap 360 as amended by Act No. 5S dt t968. Section 18 of the Act gives powers to the Chief .Justice t9 make rules prescribing the procedu~e where a prerogative orders r is sought. No rules have been made requiring that the Republic should be the applicant in such matters. In my view, any person aggrieved by a decision of a tribunal or other body may apply directly to the High Court for pre'rogative orders without making the hepublic a party. There are .several decisions of this court and the Court of Appeal where such applications for prerogative orders were made and decided and the Hepublic was not an applicanto See for example 1 the case of Zambia Tanzania hoad ~ervices Ltdo Vo JoK. Pallangyo. Misco Civil Cause No~ 2 of 1981 of the High Court Dar es Salaam Hegistryo The application was filed by the aggrieved party, iambia 'l'anzunia l<oad Services as the applicant. It was an application to quash the decision of the Permanent Labour •• 00•/3. - 3 - Tribunal. ~he Republic w~s not, and could not be the applicant. The application proceeded to hearing and this court made a decision. There was an appeal to the Court of Appeal, vide ~ivil hppe&l No. 9 of 1982. The issue of making the ·Republic an applicant did not arise. There are other applicat£ons filed in this court for orders of certioraris and the Republic has not been made an applicant. I need not enumerate them. In view of the above, I can find no bbsis for Mr. Kis~si's . submission that the ~epublic should be made an appl~c~nt in applications for prerogative orderso f"1ro Kisusi' s final objection was that the. Permanent Labbili" '.rribunal should be the respo11dent and JUWATA the present respo,ndent should be the co-respondent. He gave reasons. He said that the decision which is being challenged was macle by the Permanent L~bour fribunal and therefore the Chairman of the ~ribunal should appear as a respondeni. Mro Kisusi said that the 'l'ribunal has to be made a party and has to appear Sb as t.o persuade the court that it had jurisdiction to entert~in the inquiry. It was also Mr. Kisusi's submission that the Tribunal .has the burden to establish that it had jurisdiction. The dispute was filed in the Permanent Labour Tribunal by JUWATA on behalf of the employees against the management . of.the . Hotel Africana. The ~ermanent Labour Tribunal held that it had jurisaiction to ente1·tain the matter.. The dispute hns eill along been between JUWATA as representotive6 of the e~ployees ind the manugement of Hotel Africana. These are, as Mr. Lakha submitted, the vital parties in the dispute which was referred to the Permanent Labm~r 'l'ribunal. 'l'he Tribunal deciued that it had jurisdiction ana gnve its reasons in writing. As fer as the matter stands now, the Tribunal has made its decision anct the management of Hotel Africana, the applicant, is asking this court to quash the Tribunal 1 s decision .. I do not find any basis for joining Permanent Labour Tribunal as a respondent in the dispute. I entirely agree with Mr. Lakha that the burden is on the JUWATA to satisfy the court that the •rribunal had jurisdiction. It will be embarrassing to call the chairman or a representative of the Tribunal to appear to justify the correctness of the Tribunal's decisiono The vital parties are before the court and they have to argue their case without undue delay. In the case of Zambia Tanz&nia Road ~ervices Ltdo v. J.Ko Palangyo which I have cited earlier, the Permanent Labour 'l'ribunal was not the respondent. ln another case, BHESCO v. H~misi Mapenzi &nd others, DSM. High Court Misc. Civil C~use ...... /4. /' - 4 - ' No. 19 of 1986 the application was made to quash the decision of the lJ.SM l-<egional Housing '.l.'ribunalo 1'he 'l'ribunal was not the respondent in the application. There are several other1 ~imilar a~plications and the inferior tiibunal h~s not been maue a party. I· need not enumerate themo .Suffice to say that there is no legal basis for making the inferior tri-bunal whose decision is being challenged., to be a party before the High Court. T~~ parties to this application are knowno They are the managemdrit of Hotel Africana and JUWATA as representatives of the employees. These are the parties who appeared before the Tribunal.and have also appeared in these proceedings. They have to ~iesent their arguments and this court will have to consider .on the bi:>'.r-re-ctness of the decision of the 'l'ribunal .- whether the Tribunal had jurisdiction. I~. can _find no ·basis to make th~ Tribunal a respondent or the i'<epublic an applicant in th~se proceedings; .. In the result, the preliminary obj~ction is dismisied with costs o W. J. Mil.INA JUDGE 16th February, 1988 Jv1r. K.isusi for the nesponclent Mr • ..1.,akha is absent, with leuve of the c-ourt. Mr. Kisusi: -. I ask for an early date of·mentiono Order: ~ The matter is to be mentioned before the Registrar on 20th February, 1988 for fixing an early hearing date. ~-~ 'vJ. J ~MAIN A JUDGE 16/2/1988 r