civil appeal no

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI fCORAM: NDIKA, J.A., GALEBA. J.A.. And MGONYA, J.A.^ CIVIL APPEAL NO. 405 OF 2021 KILIMANJARO AIRPORTS DEVELOPMENT COMPANY (KADCO) ............. .... ....... ...... APPELLANT VERSUS ERIC ITEMBA ....... ...... .... .... ...... ...... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Moshi) IMkapa, j .) dated the 9th day of April, 2021 in Labour Revision No. 20 of 2020 JUDGMENT OF THE COURT 12th & 13thJune, 2024 NDIKA, J,A.i Kilimanjaro Airports Development Company (KADCO), a company entirely owned by the Government of Tanzania, is contesting the judgment of the High Court of Tanzania, Labour Division at Moshi ("the High Court") dated 9th April, 2020, which vacated the award of the Commission for Mediation and Arbitration ("the CMA") dated 19th June, 2020, The CMA dismissed an unfair termination claim that the respondent, Eric Itemba, had filed against the appellant. l The appeal arises in the following context: in 2007, the appellant employed the respondent as an aviation security officer on permanent terms. The respondent was accused of leaving the security gate at the Kilimanjaro International Airport (KIA) that he was overseeing open on 4th April, 2017. This, it was alleged, led to the entry of a private motor vehicle with the registration number T636 CTL into the security restricted area of the airport. The respondent was also accused of neglecting to complete on-the-job training and certification for renewal of security screeners licence. He was, therefore, summoned to appear on 29th May, 2017 before the disciplinary committee to address two allegations of misconduct. The appellant terminated his employment vide a letter dated 7th June, 2017 after the committee found him guilty of both charges. On 4th July, 2017, the respondent referred the dispute to the CMA challenging the termination. As previously mentioned, he was unsuccessful. On revision, the High Court determined that the termination was procedurally and substantively unjust. As a result, the appellant was ordered by the court to reinstate him to his employment without loss of remuneration for the period of absence, in accordance with section 40 (1) (a) of the Employment and Labour Relations Act, Cap. 366. 2 Displeased, the appellant has now appealed to this Court on five grounds'of appeal. At the hearing of the appeal before us, Mr. Deodatus Nyoni, learned Principal State Attorney, teamed up with Mr. Yohana Marco Odada and Ms. Khadija Matewele, learned State Attorneys, to represent the appellant. The respondent was self-represented. Before the hearing began earnestly, we granted leave to Mr. Nyoni, upon his prayer in pursuance of rule 113 (1) of the Tanzania Court of Appeal Rules, 2009, to argue an additional ground to the effect that: "the CMA had no jurisdiction to entertain the matter as it involved a disciplinary issue between the respondent who was a public servant and the appellant, a government institution/' Focusing on the above complaint, Mr. Nyoni abandoned the initial five grounds. He argued that in terms of section 32A of the Public Service Act, Cap. 298 ("the Act"), introduced by section 26 of the Written Laws (Miscellaneous Amendments) (No. 3) Act, 2016, Act No. 13 of 2016, the respondent, being a public servant, was barred from referring the dispute directly to the CMA without exhausting all remedies provided for under the Act. He said that the said Act No. 13 of 2016 was gazetted on 18th November, 2016, meaning the provisions of section 32A of the Act became effective since then. The respondent, he submitted, ought to have appealed in accordance with section 25 (b) of the Act to the Public Service Commission in the first place. Citing Tanzania Posts Corporation v. Dominic A. Kalangi, Civil Appeal No. 12 of 2022 [2022] TZCA 154 [28th March, 2022; TanzLII], he implored us to nullify the CMA's proceedings and the award thereon and proceed to quash the decision of the High Court. Replying, the respondent acknowledged that he made his referral to the CMA on 4thJuly, 2017, but at the time he posited that he was not a public servant because the appellant was a private company. He was definitive that the appellant became a wholly owned government company in 2022. Mr. Nyoni rejoined that the appellant became a wholly owned government institution in 2010. To be resolved first is the question whether the appellant is a wholly owned government entity. Based on the official records availed to us by the registry, the appellant was registered under the Companies Act, Cap. 212 on 11th March, 1998 as a private company number 33616. Between 4th September 2009 and 26th May, 2010, the Government of the United Republic of Tanzania bought all the shares in the appellant company from the previous owners (Mott Macdonald International Limited, South Africa Infrastructure Fund Investments (Pty) Ltd and Inter-Consult Limited). Since then, the appellant has been a wholly owned government institution. Section 32A of the Act, cited by Mr. Nyoni, is centrai to the determination of this appeal. It provides thus: "32A. A public servant shall, prior to seeking remedies provided for in labour laws\ exhaust all remedies as provided for under this A c t" As we held in Tanzania Posts Corporation {supra), the above provision precludes the CMA from entertaining labour disputes involving public servants unless and until they have exhausted all remedies provided for under the Act - see also: Tanzania Posts Corporation v. Salehe Komba & Another, Civil Appeal No. 128 of 2020 [2023] TZCA 17628 [20th September, 2023; TanzLII] and National Health Insurance Fund & Another v. Grace Lobulu & Others, Civil Appeal No. 521 of 2022 [2024] TZCA 259 [12th April, 2024; TanzLII]. Inasmuch as executive agencies and government institutions are concerned, it is imperative to note that the Act recognizes under subsection (1) of section 31 that public servants in such agencies or institutions are to be governed by the laws establishing the respective agency or entity. However, in addition to such laws, such public servants are, in terms of subsection (2) of that section, also governed by the provisions of the Act. For ease of reference, we extract the said provisions thus: ) Servants in the executive agencies and Government institutions shaii be governed by provisions o f the laws establishing the respective executive agency or institution. (2) Without prejudice to subsection (1), public servants referred to under this section shall also be governed by the provisions of this A c t " At this point, we would agree with Mr. Nyoni that, as decided in Tanzania Posts Corporation (supra), an aggrieved public servant in a government institution or an executive agency may have recourse under section 25 (b) of the Act by appealing to the Public Service Commission. In accordance with section 25 (c) of the Act, the decision of the Public Service Commission is appealable to the President of the United Republic whose decision shall then be final and conclusive. Given that the respondent was a public servant in the service of the appellant, a wholly owned government entity, we are satisfied that he was bound by section 32A of the Act to exhaust the remedies under the Act, but he did not attempt to do so. In consequence, his referral to the CMA on 4th July, 2017 was caught by the web of the aforesaid provisions. As rightly argued by Mr. Nyoni, the CMA at that time had no jurisdiction to take cognisance of the respondent's unfair termination claim. Upon the foregoing discussion, we find merit in the sole ground of appeal and proceed to allow the appeal. Consequently, we nullify the proceedings before the CMA and the decision thereon. Furthermore, we quash the judgment of the High Court. This being a labour dispute not amenable to award of costs, we make no order concerning costs. DATED at MOSHI this 13th day of June, 2024. G. A. M. NDIKA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered on this 13th day of June, 2024 in the presence of the Ms. Grorian Isangiya, learned State Attorney for appellant and respondent in person unrepresented, is hereby certified as a true copy of the orig:—1