lekule vs jv ltd 1998 tzhc 6 16 june 1998

~V"- ~. .i.•.~ THE HIGH COURT 0 F TANZANIA ~ tt-t C L\1~:l2JT~ AT DAR ES SALAAI'·l tJSf(\ CIVIL APPEAL NO••••• 3 OF 1998 LEO K. LEKULE •••••••••••••••••••••• APPLICANT NSEKELA,J: This is an appeal from a decision of the Industrial Court of Tanzania in Trade Dispute No. 6 of 1997 delivered on 12.12.97 The appellant one Leo K. Lekule was aggrieved by the said decision, hence this appeal to this court. On 7.4.98 the learned advocates for the parties namely ~r. Mushumba for the applicant and Mr. ·~.ariwa -~ for the respondent requested to submit wr.i:"tten ~ ," submissions. In his submissions; the learned advocate for the appellant has written and I quote:- 11Last. but not least, this appeal has been broyght in this court by virtue of the High Court decision (full Bench) in Civil Case No. 53 of 1994 p.P fJIagashaV. Attorney General 'and another (unreported) :.__ _ _ _n I was intrigued to say the least when I read this sentence and this prompted one to have a closer look at ~agasha's case to see if the High Court conferr,ed upon itself jurisdiction to hear and determine appeals from the Industrial Court of Tanzania. Mpgasha's case dealt with the question as to v~1ether or not ) section 27 (IC) of the Industrial Court of Tanzania Act 1967 (the Act) was constitutional. This court then was construing the constitutionality of section' 27 (IC) of the Act. After close scrutiny this court

declared, and I quote~- II We are amply satisfied that section 27 (IC) of the I~dustrial Court of Tanzania Act, 1967 is unconstitutional and invalid to the extent that it deprives a person of his basic right of appeal or another remedy except on grounds ot lack of jurisdiction:l• So section 27 (Ie) of the Act was declared"" consti tutiona1 •. This section when it was on the statute books read as follows:- itSubject to the provisions of th:j.ssection every award and decision of the court shall be final and not liable to be challenged, reviewed, questioned or called in quo$tion in any court save on grounds of lack of jurisdiction in v~1ich case the matter shall be heard and determined by a full bench of the High Court." Putl diff\0rently, a decision of the Industrial Court as was fina~ and conclusive save on grounds of lack of jurisdi- I ction. ~here was no appeal to this court or any other organ Thereforp, according to Mr. Mushumba, if I have correctly grasped what he ~as submitted, that since section 27 (IC) of the Act is now npn-existent in the statute books, then an appeal from a decisipn of the Industrial Court lies to this court. It is my consi~ered view tnat I have to decide on the issue as to whether br not an appeal liests> this court from a decision of the Induftrial court, before I ventur~ to Consider the grounds of appea)l...Section 27 (1) of the Act reads·as

follows;- " The court shall have power, in any proceeding before it, on application being made in that behalf by any party or of its own motion, if it appears that there has been an error material to the merits of the dispute involving injustice ·revise the proceedings and make such decision or award in the matter as it sees fit; save that no decision or award shall be made by the court in exercise of its jurisdiction under this sub-section, increasing the liability of any party to his detriment unless such party shall first been given an opportunity of being heard". This subncction empowers the court either of tis own motion or by being moved by one of the p0rties to the dispute to have a second look at any proceeding determined by it and revise the proceedings and make an appropriate decision. This is indeed not an appeal, but in my view the subsection strongly suggests that an appeal to a higher organ was not in contempla- tion of the legislature. More importantly however in civil matters, generally speaking the appellant jurisdiction of the 8i High Court is to found in section 70 (1) of the CiVil Procedure Code which provides~- II Save as where otherwise expressly prvided in the body of this Code or by any other law for tpe time being inforcc, an appeal shall lie to thleHigh Court from every decree passed by a cou~t of a resident magistrate or a district cburt exercising

original juris- diction." "Lite clearly this spction does not ct.'Ifer8ppel1iate juris- diction from a decision of the Industrial Court, and the Industri81 court of Tanzzni2. Act, 1967 does not confer such appellate jurisdiction. In effect,before the decision in Magabha's case section 27 (IC) of tfueAct austed the jurisdiction of this Court save in jurisdictiomal matters. In the case of Attorney General v. Sh~ (No.4) (1~71) E.C 50, Spry, Ag. P Stated thus:- " It has long [Peen established and we think there is ample authority for saying that appellate jurisdtction springs from statute. There is no such thing as inherent appella±s jurisdiction". The Industrial Court of Tanzania Act is silent on this issue. This court can only exercise appellClte jurisdiction where that jurisdiction i$ given by the laws of the Land. In the final analyis, I striWe out this appeal as incompetent with costs. It is so ordered.

NSEKELA

JUDGE 8.6~98 16.6.98: Coram Mshote - DR/HC lvlr. 1"lsl1.umba- For the Appli!cant Mr. Kariwa - For the Respondent. C/C Komba. Ruling delivered in chambe!rs on lOth June, 1998 in the prdsence of Mr. Kar!iwa for the Respondent.

NSEKELA --

JUOOE