national bank of commerce ltd vs attorney general others 2007 tzhc 122 29 june 2007

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT MWANZA ORIGINAL JURISDICTION MISCELLLANEOUS CIVIL APL. NO. 10 OF 2007 NATIONAL BANK OF COMMERCE LTD ...APPELLANT VERSUS *\ 1. ATTORNEY GENERAL 2. MINISTER FOR LABOUR r RESPONDENTS 3. LUCAS B. MASANJA RULING MACKANJA.J. This is an application for leave to apply for the prerogative orders termed certiorari and mandamus in terms of the grounds which are set out in the statement which accompanies the affidavit that supports the application. I will refer to them quite presently. In the meantime I will trace the background which gave rise to the erstwhile relationship between the applicant and the third respondent and the i result of the backlash of the contentious end of that relationship. According to Annexture "B" to the affidavit of one Felix Kibodya, who is the head of the applicant's legal department, the third respondent was a supervisor in the customer care section in the commercial banking business of the applicant's. Problems between master and servant arose from allegations that the third respondent authorized widrawals of a sum of Shs. 40,000,000/= and Shs. 4,000,000/= by way of current account vouchers in favour of a firm known as M/S Furaha Cooking O il on 14th April, 2001 and on 17th April, 2001, respectively. The two sums of money are alleged to have been withdrawn from current account No. 01503001816 which was opened by M/S Furaha Cooking Oil on ‘4th April, 2001. The opening of this bank account is not free from controversy either. For although the applicant claimed that it was the third respondent who sumperintended over that transaction, the third respondent disowned it very categorically. This saga culminated in the third respondent's employment being determined. Being dissatisfied by the termination of his employment the third respondent referred his complaint to the Nyamagana Labour Conciliation Board whose proceedings form the said Annexture "B" to the affidavit of Mr. Felix Kibodya. The Ngamagana Labour Conciliation Board found for the third respondent, consequent upon which it ordered his re­ instatement with full benefits. The applicant's reference to the Minister then responsible for labour was dismissed ostensibly because "Form 7" was missing from the documents forming the reference to the Minister. The applicant, believing that the Minister's decision was not fair, has come before the High Court in search of the prerogative orders of certiorari to- remove into this Court and to quash the decision of the Minister for Labour by which he rejected the applicant's further reference which is erroneously referred to as "the appeal' in the statement, thereby confirming the decision of "the Nyamagana Labour Conciliation Board. In addition, the applicant seeks an order of mandamus by which the second respondent may be commanded to hear the applicant's reference on merit without attaching any technicalities and to act thereon in accordance with the law. The applicant has set out six grounds in the statement ♦ upon which his application for the twin orders rests, that is to say:- (i) that the decision of the Minister for Labour rejecting the applicant's reference on account on non-compliance with Form No. 7 of the appeal forms is bad in law as the Minister is not empowered to reject a reference, but to hear it on the merit, and without undue reliance on technicalities; (ii) that at the time of the reference, the new labour legislation, namely, the Employment and Labour Relations Act had come into operation, yet the machinery for the new labour laws had not been established and the applicant could not use the old forms as they were no longer applicable nor the new laws because the machinery for labour institutions was not ir existence; (iii) that the Minister for Labour wrongly exercise his powers by failing to require the applicant t address him on the whereabouts of Form No. thereby condemning the applicant unheard; ant (iv) in the alternative and without prejudice to the foregoing grounds, that the action of th Minister for Labour is ultra vires in that th rejection of the further reference did not giv power to the Minister to order re-enstatemer when he had not considered the matter on th merits. The foregoing was the back-ground the applicatic under consideration. I now turn to consider the legal poin which have been addressed by learned counsel for tt litigants. In this regard Mr. Kalolo, learned counsel for tt applicant, and Mr. Mkemwa, learned State Attorney fort I respondents, made fairly long submissions complete wi case law back-up. It was Mr. Kalolo's contention that tl Minister acted unreasonably when he dismissed tl reference solely because Form No. 7 was missing from tl documents of the reference. According to Mr. Kalolo wh was legally mandatory in lodging a reference to the Minist was the memorandum of the grounds upon which t reference is founded in terms of section 43 of the Secur of Employment Act which, with due regard, is wrongly referred to as Cap. 368 RE 2002 instead of Cap. 387 RE 2002. According to Mr. Kalolo, learned counsel, parties to a reference to the Minister may act under section 43 of the Security of Employment Act by submitting memoranda in support of their respective cases. Here again the section referred to has nothing to do with parties' memoranda, it deals, according to its marginal notes, with "finality and effect of decisions of Minister and Board". The relevant provisions are to be found in section 45 of Cap. 387 RE 2002 which stipulates thus:- "The parties making a reference to the Minister shall be entitled to submit memoranda in support of their respective cases, but shall not be entitled to appear in person or by advocate or other representative before the Minister" Suffice it to say that it was argued for the applicant that omission of Form No. 7 was not fatal because essentially it was no more than a covering letter by which the reference was forwarded to the Minister. That since rules of procedure are handmaidens of justice, non- compliance therewith should not defeat justice. Instead, Article 107 A(2)(e) of the Constitution of the United Republic should be called in aid. It provides thus in the official Kiswahili edition "107 A ( l) .... (2) katika kutoa uamuzi wa mashauri ya madai na jinai kwa kuzingatia sheria Mahakama zitafuata kanuni zifuatazo: yaani: (a) -(d)... (e) kutenda haki bila kufungwa kupita kiasi na masharti ya kiufundi yanayoweza kukwamisha haki kutendeka". Mr. Kalolo, learned counsel, cited in support of his argument decisions in LHRC, LEAT and NOLA v. The Attorney - General Civil cause No. 77 of 2005 (Dar es Salaam Main Registry), unreported); Kenya Airline Pilots Association v. Kenya Airways [2001] 2 EA 407; R v. Boundary Commission for England, Ex parte Foot [1983] 2 WLR 458 and the Kenya case of John Njoroge Michuki & Another v. Kentanzunga Heardware Ltd, Civ. Appl. Nai 16 of 1998. That since the order by which the reference was rejected is impeachable, the order of the Minister by which the third respondent's t o be re-instated in employment is legally wrong. Mr. Kalolo cited the decision of this Court in Renatus Katenana v, ~T~/-ie Registrar, The Attorney General & Another Misc. Civ. Cause No. 116 of 1994 (Dar es Salaam Registry), to support i^js argument that the rejection of the reference worked Qn injustice to the applicant because he was condemned unheard. He also cited the English cases of Esom /ey London Borough Councils v. Greater London Council I W l_R 62 and O'Reily v. Mackman [1982] WLR 1096. Mr. Mkemwa, learned State Attorney, submitted that the omission of Form No. 7 constituted a fatal irregularity because the use of the forms prescribed by the Minister is mandatory .in terms of section 51 of the Security 0f Employment Act. He cited the decision of this Court in Tanzania Harbours Authority v. Minister for Labour & The Attorney -General Misc. Civ. Cause No. 94 of 1994 (Dar es Salaam Registry in support of his arguments. He has alsc cited the decision in of this Court in Shaban Nassoro 6 Another v. Tanzania Portland Cement Co. Ltd & Anothe [1966] TLR 96 in which it was held that section 51 0f th< applies for leave. Otherwise to consider and to deterrt this application in the lines of learned counsel's submiss1 would lead to a pre-emptive determination of the applies for the prerogative orders. In that connection all authorities which were referred to me are cl distinguishable from the facts of this application. I therefore, separate the grain from chaff by considering that part of learned counsel's arguments which is relev to an application for leave. According to Mr. Kalolo, learned counsel f applicant, the ministerial order may be attacked frortr fronts if the applicant is allowed to file an application two prerogative orders she seeks to pursue. Firs contended ' that the minister's order by wh applicant's reference to him was refused is unreaso "^ b le . it is so alleged because it does not conform to cons 'tia tio n a l provisions as enshrined in Article 107 A(2> o f the Constitution. Secondary, it is alleged that at th e t im e the impugned ministerial order was made the provision of the Security of Employment Act relating to ^ r,evano procedures had been superceded by the Emplo ^ e n t am Labour Relations Act, No. 6 of 2004. In the a lt r native t applies for leave. Otherwise to consider and to determte this application in the lines of learned counsel's submissions would lead to a pre-emptive, determination of the application for the prerogative orders. In that connection all h e authorities which were referred to me are clearly distinguishable from the facts of this application. I will, therefore, separate the grain from chaff by considering only that part of learned counsel's arguments which is relevant to an application for leave. According to Mr. Kalolo, learned counsel for the applicant, the ministerial order may be attacked from three fronts if the applicant is allowed to file an application for the two prerogative orders she seeks to pursue. Firstly, it is contended that the minister's order by which the applicant's reference to him was refused is unreasonable. It is so alleged because it does not conform to constitutional provisions as enshrined in Article 107 A(2) of the Constitution. Secondary, it is alleged that at the time the impugned ministerial order was made the provisions of the Security of Employment Act relating to grievance procedures had been superceded by the Employment anc Labour Relations Act, No. 6 of 2004. In the alternative t< the above reliefs, it was argued that the Security of Employment Act did not cloth the Minister for Labour with power to order a re-instatement. All these claims cannot be addressed, without the requisite evidence which must be filed in support of an application for the prerogative orders. In other words, determination of whether the Minister's order was intra vires his statutory powers may be challenged in what is known as "jurisdictional review". The learned authors of Garner's Administerative Law, Eighth Edition, say this of jurisdictional review at pages 182 and 183 of their work:- "(b) Jurisdictional review The basic ideas behind this ground of review are * fairly simple. It is in their practical application that difficulties abound. If a statute confers 'jurisdiction' or 'powers' on an agency to be exercisable in certain defined circumstances, questions of law may arise as to precisely what requisite factual preconditions are (i.e. interpretation of the statute); and questions of fact may arise as to whether those factual preconditions actually exist. Such jurisdictional questions must, naturally, be determined initially li by the agency in question itself, but if jurisdiction is claimed or power asserted as a result of an erroneous decision of law or fact -on such a jurisdictional question, the ensuing decision or action may be challenged as involving wrongful usurpation of authority" It means that the Minister had to satisfy himself that the facts before him entitled him to order reinstatement in employment of the third respondent. His decision may be challenged for being unreasonable if he so acted without jurisdiction and without the facts and the law which created that jurisdiction; for jurisdiction is a creature of statutory law. It cannot be inferred. As Lord Farweil said in R. v. Shoreditch Assessment Committee exp Morgan [1910] 2 KB 589 AT 880 CA "A Court with jurisdiction confined to the City London cannot extend that jurisdiction by finding as a fact that Piccadilly Circus is in the Ward of Chepe". Now, Mr. Kalolo, learned counsel, argued that the provisions of the Security of Employment Act as relates to grievance procedure were replaced by the provisions of the 12 Employment and Industrial Relations Act, which was operational at the time the Minister made his impugned order. This is yet another matter that may be considered in an application for a judicial review. I am satisfied, upon the foregoing considerations, that the applicant has an arguable case if she is granted leave to apply for the prerogative orders of certiorari and mandamus. In the result the application for leave is allowed with costs to the applicant. JUDGE Mwanza 29th June, 2007 Mr. Denis Kahangwa/Mr. Kalolo, Adv: For Applicant. Mr. Mkemwa, SA: For 1st, 2nd Respondents. 3rd Respondent : Present. 13