20070629 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ATMWANZA ORIGINAL JURISDICTION MISCELLLANEOUS CIVIL APL. NO. 10 OF 2007 NATIONAL BANK OF COMMERCE LTD u ■APPELLANT VERSUS " 1. ATTORNEY GENERAL 2. MINISTER!FOR LABOUR RESPONDENTS . 3. LUCAS B. MASANJA RULING MACKANJA,J. This is an. application for leave to aAply for the prerogative orders. termed certiorari and mand mus in terms of the · grounds which are set out in he· statement whic~ accompanies the affidavit that suppo s the application. I will .refer to them quite presently. In th meantime I will trace · the background Which gave rise to thb erstwhile relationship between Jhe applicant and the thir respondent and the 1 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/5 Furaha Cobking Oil on 14th April., . . . . . I . th 2001 and on 17 April, 2001, respectively. The two sums of money are alleged to have been iithdrawn from current I account No. 01503001816 which wa! opened by M/5 Furaha Cooking Oil on 4th April, 2001. T e opening of this bank account is not free from controver y either. For although the_· applicant claimed that it was t e third respondent who sumperintended over that transacti n, the third respondent disowned it very categorically. Th s saga culminated in the third respondent's employment eing determined. Being dissatisfied by the te~mination .of ~is employment the. th.ird respondent referred his complaint to the Nyamagana Labour 2 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 decisi9n of the Minister for Lab9ur by ,Nhich he rejected the applicant's further reference which is erroneously I I , referred to as . "the appeal' in / the statement, thereby confirming the decision of t~e Nyamagana Labour Conciliation Board. In addition, thf applicant seeks an order of mandamus by which the sec nd respondent may be 0 commanded to hear the applic nt's reference on merit without attaching any technicaliti s and to act thereon in · accordance with the law.· 3 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 rieference, the I . i . . . . new labour legislation, ramely, the Employment . . I and Labour Relations Act had come into ' operation, yet the mac inery for the new labour · laws had not been esta lished and the applicant could not use the old forms as they were no longer applicable nor t e new laws because the machinery for labour institutions was not in existence; . (iii) that the Minister for Uabour wrongly exercised · · his powers by failing t require the applicant to 4 . .· :.· ...... •.... ,, . ,: : . .. .. : '; - . -,: .. .., ~)-:,.., . . >.""' address him on the whereabouts of Form No. 7 thereby condemning the applicant unheard; and (iv) in the alternative and without prejudice to the . foregoing grounds, that the action of the Minister for Labour is ultra vires in that the · rejection of the further reference did not give power to the Minister to order re-enstatement when he had not considered the matter on the merits. The foregoing was the back~ground the application under consideration. I now turn to /consider the legal points i •. which have been addressed by I/earned counsel for the i litigants. In this regard Mr. Kaloloi. learned counsel for the applicant, ·and Mr. Mkemwa, learnid State Attorney fort he respondents, made fairly long submissions complete with case law back~up. It was Mr. Ka olo's contention that the Minister acted unreasonably hen he dismissed . the reference solely because Form No 7 was missing from the documents of the reference. Acclrding to Mr. Kalolo what was legally mandatory in lodging reference to the Minister was the memorandum of the .rounds upon which the reference is founded in terms of !ection 43 of the Security 5 of Employ_ment 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 tb be found in section :45 of Cap. 387 RE 2002 · which stfpulates thus:- "The parties making a referehce to the Minister shall be entitled to submit me~oranda in support of their respective cases, but hall not be entitled to appear in person or by advocate or other representative before the Minis er" ·· Suffice it to say that it was argued for the applicant that omission of Form No. 7 w s not fatal because essentially it was no more than a overing letter by which the reference was forwarded to tht Minister.· That since rules of procedure are handmaidens of justice, non- 6 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 bil<jl kufungwa kupita kiasi na masharti ya ~iufundi yanayoweza • I kukwamisha hal<i kutendeka". : I ~r. Kalolo, learned counsel, ~ited in Lpport of his argument decisions in LHRC, LEA T and NOL ·v. The Attorney - General Civil cause No. 77 of 200 (Dar es Salaam Main Registry), unreported); Kenya Airl1 e Pilots Association v. ' Kenya Airways [2001] 2 EA 407; R . Boundary Commission for England, Ex parte Foot [1983] 2 LR 458 and the Kenya case of John Njoroge Michuki & nother v. Kentanzunga Heardware Lt~ Civ. Appl. Nai 16 o 1998. That since the order by which the reference was r jected is impeachable; 7 the. order of the Minister by which the third respondent is to be re-instated in employment is legally wrong. Mr. Kalolo cited the decision of this Court in Renatus Katenana v. The Registrar, The Attorney General & Another Misc. Civ. Cause No. 116 of 1994 (Dar es Salaam Registry), to support his argument that the rejection of the reference worked .an injustice to the applicant because he was condemned unheard. He also cited the English cases of . Bromley London Borough Councils v. Greater London Council 2 WLR 62 and O'l?eily v. Mackman [1982] WLR 1096. ' Mr. Mkemwa, learned State ¥\ttorney, submitted that I the omission of Form No. 7 cons~ituted a fatal irregularity because the use of the forms pre \cribed by the Minister is mandatory in terms of section 51 of .. the Security · of Employment Act. He cited the ecision of this Court in Tanzania Harbours Authority v. Jnister for Labour & The Attorney -General Misc. Civ. Caus No. 94 of 1994 (Dar es Salaam Registry in support of his rguments. He has also cited the decision in of this Cou in Snaban Nassoro & Another v. Tanzania Portland Ce ent Co. Ltd & Another [1966] TLR 96 in which it was he d that section 51 of the 8 .l >/ ~~r, Security of Employment Act makes the use of the prescribed forms mandatory. It is upon the foregoing reasons that Mr. Kalolo, . learned counsel, .would have me grant him his ·prayers. Mr. Mkemwa, learned State Attorney, has a totally rival proposition. The one thing I have noted is that either learned counsel has undertaken his task as if this was an application for the prerogative orders for which the applicant seeks . I Jeave of this Court to allow her tcb! pursue in a totally· different application. As a result, th~y have cited cases i which relate to applications for certiorari. In so doing they slipped into error. The primary purpose for an appli ation such as the one before me is for the applicant to s ow that she has an arguable case. Therefore it would be enough to lead · evidence and arguments to establi h the fact that the . applicant stands a chance of succeedi g if she is allowed to apply for the prerogative orders in espect of which she 9 '• applies for leave. Otherwise to consider and to determine 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 the authorities which were referred to n1e are clearly distinguishable fr0m 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 I applicant, the ministerial order may pe attacked from three 'I fronts if the applicant is allowed to fil~ an application for the i 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 ref sed is unreasonable. It is so alleged because it does not c nform to constitutional provisions as enshrined in Art cle 107 A(2) of the Constitution. .Secondary, it is alleg d that at the time the impugned ministerial order was mad the provisions of the Security of Employment Act r lating to grievance · procedures had been superceded b the Employment and Labour Relations Act, No. 6 of 2004 In the alternative to . • .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, Eigllth Edition, say this of jurisdictional review at pages. 182. and 183 of their work:- I "(b) Jurisdictional reviey., I The basic ideas behind this grou~d of review are fairly simple. It is in their practica application that difficulties, abound. If a tatute confers 'jurisdiction' or 'powers' on a , agency to be exercisable in certain defined circumstances, questions of law may arise as t precisely what requisite factual preconditionk are (i.e. interpretation of the statute); aJd questions of fact may arise as to whether those factual preconditions actually exist. Su h jurisdictional questions must, naturally, be det rmined initially 11 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 usurpa~ion 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 i the law which created . ' that jurisdiction; for jurisdiction is a ·creature of statutory I law. It cannotbe inferred. As Uord ! Farwell .said . in R~ v. l ·= Shoreditch Assessment Committe exp Morgan [1910] 2 KB 589 AT 880 CA I.: •.1:,::: . \.:. , "A Court with jurisdiction confined to the City London cannot extend that jurisdiction by finding as a fact t~at Piccadilly Cir us is in the Ward of Chepe". Now, Mr. Kalolo, learned ounsel,' argued that the provisions of the Security of Employment Act as relat~s to grievance procedure were replac d by the provisions of the 12 I•. .. . ,,- . 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 foregoi~g 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. ·Delivered~ · ! . 'l ',;:. · Joseyfiat :M.. Jvllilclianja · . !1_ ' L JUDGE i. Mwanza :i: ! . . I. 29th June, 2007 :I . , I ! :i . I . i. :· i . i Mr. Denis Kahangwa/Mr. Kallolo, Ad ·: .For Applicant. ' ·, ·, ' Mr. Mkemwa, SA: For 1st, 2nd Resp ndents. 3rd Respondent : Present. · 13