19900322 TZHC Dar es Salaam

HT THE HL~H COURT OF TANZANIA AT ....... ,___, DAR ES SALAAJ1 ', ... ,_ .... __. r::rsc. CVL.CAUSTI No. 38 OF I988 JUMUIYA YA W/1.FANYAKAZI TANZANIA(JUV!ATA) CON BEHALF OF L_.B.NYONI ••.•••••••••••..• APPLICANT INCAR TANZANIA LIMITED •••....•••.•.•• RESPONDENT RULING BAHATI,J. ~~...... ......... .._..__. :... This is an application for an order of certi'lrari to re □ ove into this court and quash an order or award by the Peroanent Labour Tribunal □ ade on 24th February, 1988, and for an order of declaration to the effect that L.B. Nyoni is still a lawful enployee of Incar Tanzania Lh1i tcd, and for yet another order of □ andanus directine, Incar Tanzania Li□ ited to re-instate L.B~Nyoni into his for□ er enploynent with all the benefits accruine; thereto as if there had not been any interruption •.. _.. The application is supported by an affidavit and acco □panied by a state□ ent of facts. In his affidavit, the applicant states inter alia that the decision of the Per□anent Labour Tribunal is wronc because the Tribunal upheld the terrJination of the applicant's enployr:rnnt even after the Tribunal had found that the applicant was not inforned of the·reasons revardinf the said teroination and that the applicant had nev·er been e;i ven an apportunity to be heard •.., The affidavit f~rther states that the Pernanent Labour Tribunal erred in law in-upholdine the reasons civen by Incar Tan~ania Lini ted for the applicant's tert1ination of e1:1ployr:1ent" while the said reasons were barred by li□ i tation unde.r the relevant leeislation and that the order was for these reasons· incoci)etent, contrary to law and of no leeal effect. There was a prelir:d.nary point raised in this applie<?-tion and that was whether certiorari would lie in view of tb.e fact that section 27 (1) of the Per□anent Labour Tribunal Act provides as follows: Every award and decision of the Tribunal shall be final and shall not be liabl~ to be challenged, re,iewea~ questioned or called in question in any court save on c;rounds of lack of jurisdiction • • • . •/2 ...• I - 2 - Mr. Marando, learned counsel for the applicant argued that -'lib.a law' ... I was a s-'c:;ep further wi tb. rc1:;axd to the issue of orders of certiorari. and if.lat it is not confined only to jurisdiction or la.cl~ of it in t~1e oase of the P8J:'iilaiton:'c:; Labour 'l'ti bullal-. lie l'ef erred the ootirt to tho book by OLUYEDE ti·liled_ .Administrative Law in Ea.ct Africa a.t pg. 1.J9 et seqUentia w:li.oh lists grounds for orders o:f' ce:rtidra.ri to bet- ( 1) Lack o:Z jurisdiction or execess o:r it, (2) baud, collusion or c1.uress a.nd (.3) Error of law on the .fa.oe of the rooord. Ire also referred to the book titled Administrative Law by 1-Tade 3rd F.dition a;'c:; pac;e 94 et seq. )'Ir, lt~a.ndo further referred to Encrlish cases, namely, .!1xl!..~jll~bor :--.. lru;d - ~ i ~ ( 1951) 1 ALLEm 260, Re Gilmore's AJ?..l?..lioation ( 1957) 1 ALLER 796, (luli:~C?)r·W§. Forei@ CoJ~~_?,tion Commiss}-on ( 1267 2 ~ - 906, Concernil')B' the orc'1.or of the Minister which ft..,h~~i~en in this· ease, Mr. Marando s:ta,ted that. the .$ecuri ty of Enployment Act s-.. 37( 1) mncle it ma..'1fulto.ry. for an e;ilployer to inform an employee the ci:eewnstc1no·e's· of -'iier;;iination of his emplo~nt.. Du.t, Mr, Mn.rand.a submitted, the Minister dic'i. no".; c.db.er to the IJ:rovisiona of section 37 and as such there was~rror on the face -~f' t\o record. liurthomore, Mr. Mnrundo argued tha.t the Minister took into account breaches which we.re moro than •au· n.ontlls old contrary to section 20 (2) (b) of ·i;:.1e Security of llmploy.nent Act. '- ·,_ I11 reply, M:r. Kesa.ria.1 learned counsel for t:10 respondent, re:f'orrecl tho court to the oaso of Rv, Cam)Eidgo Shire· Justioes III ER 729, and sul:mi tted that tho dGoision in that case Was that when the court hoo a. oonolusive jurisdiction, W(f .. 0\.16ilt not bo inquire whether·~ t has decided oor.t·ilily Mt•• Kosaria· then ref orred to the Permanent Labour Tribunal Act and suhui ttocl tb.at tho Pem.anont Labour· ~b.uuil was n. specialized tribmal to deal rri 'hli e;.iployment problems and that niattora 11ore supposed to movo faster under the FLT• Ilo subni tted further that Parliament had forbidden at\V appeals :from the Permanent Labour Tribunal's decisions and that tho applicant ·Was tryinc to US<:' tf1e CPC• to appeal in this -case- ·Mr, Kesa.ti.~' au.mi tted that the Iligh Court was not G~ing to :i,ntsr.f'ere e'V8rytirao ' the tri bun.al has .on-ca. Mr. .Kesaria oi ted ~~ da.sc · supra and Re Raoal Oorthi,unioa:ij.ons I,td ( 1901 ) AC 374 as authorities for his a.r~ent. Iler 81.lbui tted t:J.ct ·tho Poma.n0!'.t Labou.t' Tribunal had a riGht to err 'Within its ju.t":i.adiotioit !Io oonolnr1.cr, ·'. '· - ,......i..; ()r.a:ri did not lie hero. . • • • • 0 .• /3•..... 3 ... I My task here is to construe the provisions of · section 27 ( 1) of the Pernanent Labour Tribunal .ii.ct No. 41 of 1967. A dicturJ of Lo'.rd Dennine; in -~~-~~o.•':'. . '..,J~J?..1J.C.~.t:~~?A~ (supra) □ay assist ne in this task. It sto.tes: ---On lookinc into the old books, I find it very well settled the. t the reoedy by certiornri is never to be taken _away by a..riy statute except by the Dost clear and explicit words. The word "final 1;. is not enough. That only Deans "without appe~l 11. It does not oean i; without recourse to nakes the aecision final . on certio.rari.. H It -.. the facts, but not final on the l2.w.j1 The point for consideration is whether the reoedy by certiorari has been taken. awe:y by clear a...'1d explicit wo1· ~.s of a Statute in this case. I think it has, because the words of section 27 ( 1) of the Per□anent Labour Tribunal lict are explicit and clear. Section 27 (1) reads: Every awarr, anc. decision of ·the Tribunai shall be \ · final g,n~ct .s,h,a_l!.E.?...t P.~_l}QP~l-2.,...t.o.J).~..9P.-~<:1.ll:.~ng_e:5;1'", reviewed, 9E.€~~.t~.o:n5tcL,Q~~";,9_~J),~}tJ~r1~.g,:tJ..~~~-?:.?2'.\.J..~f!.. Pl).;{__ C · · -~C't 0:";7C or. . th,: .,_,.,•J., ._ • • ~ • :--rci'l.1.11'".~· -•··...., ... • ~ . .. r,f 1:--..c . • ••· ' • . • • •u,• 1( of j1..1risd.tttion . • •·. ' ··"'• •• " • ~ ., ... • ., • .. ... .,. .._ A.....,. (eaphasis supplied). I read this section to nean that there should not be any in~·-··· "',j 1l'.?. by the court e::cept on the Grounds of lack of jurisdiction. The words of the statute are very c-lo.-:i:r·. nnd they leave no roan for interpretation or interpolation. It I follows therefore that . the argut1ent of. r1r Marando that wh$re I there is an error of law on the fo..ce of the recortd certio~nri will lie, does not apply in this case.where intervention pf the court is li□ i ted only to jurisdiction. For the above: reasons this application is disnissed with costs. ,.::::~-~·~··· .......... :. . ., JUDGE 22.3.90 Mr. Marando for applicant i1r. i-~c.._-~.,,.,,=tt"'I /T(esaria for respondent. .,