nbc ltd vs minister for labour another 2003 tzhc 9 13 may 2003

IN THE HIGH CO~T OF TliNZliNL\ AT D.hR EG Si\.L!i.l-\N ____ ~~~~3L • __ NEe LHlITFJ) • • • .• .• .• . Versus 1. 1!JINISTEH FOE;r.mOUR ) • • • 2. l\.T"1'ORNEY ClliNl'.iR,\.l, ) On 7th August 2002, the National Bank of CommerceLtd as applicant, filed a Chamber &..1ITJInons pursuant to section '2 (2) of the Judicature and Application of laws Ordinance Cap. 453, section 17 A of the Iew Reform (Fatal Accidents and Hiscellaneous Provisions) Ordinance Cap. 360, section 95 of the Civil Procedure Act 1966 and any other enabling provisions of the law for grant of orders of certiorari to quash the decision of the Hiniater of Iebour and Youth DeV'elopmentdated 27th October, 2001. The ai)plicant also prayed fot' costs. ;1.sis usual i..'1 such an application :aone Jordaan, Head of HumanResources Department of the applicant swore an affidavit in support while Kibodya law Chambers filed a statclrent. In her affidavit Fi':>1laJordaan has deponea among others to the effect that tithe Minister committed an apparent error in law when he purported to exercise r8visionary powers which powers he does not have when dealing with the reference before him from a nax-existing judIcial body, Th~melythe bar es Salaam Regional Conciliation Board." In addition the learned advocates :tor the applicant have asserted in their statement lack of revisional jurisdiction by the V~nister to order a retrial of the dispute before the appropriate District Conciliation Board. flS such the existence of an apparent error of 1£1\.•• arJ:cnablc to the orders of certiorari to quash the decision under reference, On their part the respondents have countered both the affidavit and the statement to the effect, among others,. that the l1inistcrt s decision ordering a re-hearinc of the matter by the District Conciliation Board was properly rrode and was in accordance "Tith the law. Both parties have presented written submissionS to argue the application. Before I deal with the parties' submissions I find it appropria'te to give a SUImT,ary of the background which has given rise to the applicatio:a under eonsideration. On 18th September 2000 VJ.rsBernadine Nyange an employee of NBCLtd the applicant was surnrrarily dismissed from employment for alleged misuse of medical priviledges offered to her. HI'S. Nyange was accused of occasioning 10:3s to her employer by allowing unauthorised dependant access to medical services P3id for by tho Bank. Being dissatified with the disciplinary action she refered the matter to the Dar es Salaam Region Conciliation Board, a creature which did not exist in law. The ~fBoard"after hearing the parties ordered reinstatement of Mrs Nyange on the ground among others that there was no proof of the extent of loss ellcITed., :Hte applicant was dissatified by the decision of the Doard and referred the rratter to the Minister of labour who directed re-hearing afresh of the reference by a proper Conciliation Board due to the fact that Dar es Salaam Reeion Conciliation Board was non existent in law. It is this decision which has given rise to the application for writ of certiorari, It is not in dispute that DS the Dar es Sa.laam P..egionConciliation Board is not a creature kno•.m to law as such the decision it purported to make on 18th December 2000 vIaS a nothing. There was therefore no decision before the m.nister to adjudicate upon and dismiss as .r\. contended by Kibodya I.ew Ch,,1mbers. It llould follo\'1 in my considered view that the ratioml decision for the Minister to make 1iJaSto redirect a rehearing of the dispute (lnatter) before a competent conc1.°1" 1.at"1.on boar.d ThO" l. 1.03 "" 1.S a dO" 1.n my V1.e\v . ~- dby th e envisage eC1.S1.on provisions of section 26 (2) of the Security of Emplo~nent Act 1964. Section 26 (2) provides: llWhere any matter is referred to the IV!inister under this section, the Hinister s11al),., as soon as is practicable, £: dec,tsi.0A,J:PE_c..2ll Five.... and in th0 performance of his functions under this section, the Minister nay exercise the powers conferred ona Board by section 24 (in so far as they are applicable to the reference to him); and the provisions of section 25 srell ap:;::>ly to and in respect of the decisions of the Ni.histe:~ as tht:::y apply to and in respect of the decisions of the Board.:; Furthermore I agree \vith the submissions by the learned State Attorney that ''by so doing the Hinister __Sj!J.1.<! did not a•.nd co~lcLn..c:)'i~_ll~ to exercise revisional pO\1ers" qn the reference Which was properly before him in terms of section 26 (2) of the Security of Employment Act 1964. For the foregoing reasons I hold tl~t the application for the writ of cortiorari is devoid of merits and I diswiss it with costs. I so order. Opy;rt: RUling delivered to-day in chambers before 1'1r. IVJbepela for KibodY;;llearned li.dvocate and in the absence of the respondents to be notified • .., (\ \