National Health Insurance Fund Another vs Grace Lobulu Others Civil Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: LEVIRA. J.A., GALEBA. J.A. And ISMAIL. J.A/1 CIVIL APPEAL NO. 521 OF 2022 NATIONAL HEALTH INSURANCE FUND..........................1st APPELLANT THE ATTORNEY GENERAL.................................... ....... 2nd APPELLANT VERSUS GRACE LOBULU.................. ...................................... 1st RESPONDENT DK. FRANK LEKEY..................................... ................ 2nd RESPONDENT BEATUS CHIJUMBA...................................................3rd RESPONDENT MICHAEL MHAN DO..................... ............................. 4™ RESPONDENT JACKSON BUHULULA................................................ 5™ RESPONDENT CONSTANTINE MAKALA.......................................... ...6™ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) ( Rwizile, J.) dated the 2nd day of September, 2022 in Revision No. 163 of 2020 JUDGMENT OF THE COURT 13th March & 12th April, 2024 LEVIRA. J.A.: The respondents herein were employed by the 1st appellant on various dates and occupied different positions. However, their respective employments were terminated following the proposal of the Board of Directors of the 1st appellant (the Board) dated 1st July, 2016, which resolved to adopt a new organization structure. Having adopted the said i new structure, on 14th July, 2016, the Board terminated the appellants. They were aggrieved by the termination. As a result, they referred their dispute to the Commission for Mediation and Arbitration (the CMA) on 12th August, 2016, which was registered as REF. NO.CMA/DSM/TEM/541/2016/36/2017. Their main complaint before the CMA was unfair termination in respect of which they sought an order for reinstatement. The appellants opposed the respondents' complaint, maintaining that the termination was fair. Having heard the parties, the CMA came up with a finding that the respondents' termination was fair, both substantively and procedurally. Subsequently, on 25th February 2019, it dismissed the respondents' claim in its entirety. On the same day, the respondents convened a meeting following their dissatisfaction with the decision of the CMA and appointed one Grace Lobulu to initiate proceedings in the High Court to challenge the decision of the CMA, on their behalf. Thus she filed Miscellaneous Labour Application No. 172 of 2019 before the High Court on 4th April, 2019. The said application was opposed by the appellants on account that it was time barred. Despite that objection, the High Court allowed the respondents' application and appointed Grace Lobulu to represent other applicants in their intended Revision application, which was ordered to be filed within four (4) working days from the date of that ruling. The appellants were dissatisfied with the decision of the High Court in Miscellaneous Labour Application No. 172 of 2019. Therefore, they applied for Review before the High Court, challenging the order granting the respondents extension of time (4 days) to file Revision application against the decision of the CMA. The main argument being that, the prayer for extension of time was not part of the respondents' pleadings but it came from the counsel who was representing them. Their application for review was found wanting in merits and thus dismissed. Following that decision, the respondents filed in the High Court Revision No. 163 of 2020 against the decision of the CMA. In its decision on Revision, the High Court quashed the proceedings and set aside the CMA award. Aggrieved, the appellants have come before the Court advancing seven (7) grounds of grievances. We have carefully gone through the appellants' seven grounds of appeal as presented in the memorandum of appeal and observed that, they raise only two issues for our determination as follows: One, whether it was proper for the High Court to hold that the CMA had jurisdiction to entertain the dispute between the parties herein, on account that the applicability of Section 32A of the Public Service Act depends on the date on which the cause of action arose and not the date of filling a complaint before the CMA and two, whether the High 3 Court erred in dealing with a matter which was time barred before the CMA as the extension of time was granted without being pleaded or prayed for by the respondents. At the hearing of the appeal, the appellants were represented by Mr, Matamus Fungo, learned Senior State Attorney assisted by Ms. Grace Lupondo and Mr. Erigh Rumisha, both learned State Attorneys. The respondents had the services of Mr. George Ambrose Shayo, learned advocate. Ms. Lupondo addressed the Court on behalf of the appellants. She adopted the appellants' written submissions as part of her oral account and clarified on some points. In respect of the first and second issues, regarding the jurisdiction of the CMA in entertaining the respondents' complaint, Ms. Lupondo submitted that the CMA had no jurisdiction because the matter at hand was instituted on 29th November, 2016 after the introduction of Section 32A of the Public Service Act (the Act) which came into operation on 18th November, 2016. The said provision requires Public Servants, prior to seeking remedies provided in labour laws, to exhaust remedies provided by that Act. According to her, both parties in this appeal agree that the respondents who were applicants at the CMA were public servants. The 4 only dispute is whether the amendment which introduced section 32A of the Act covers the respondents or not. Another controversy on the said provision is based on the second complaint, whether its applicability is based on the date on which the cause of action arose, or the filling date of the complaint in dispute resolution forum. Ms. Lupondo took us through the record of appeal to justify her averment that, this matter was raised and dealt upon by the CMA while it had no jurisdiction. She referred us to page 8 of the record of appeal and argued that, it is clear on the record that the complaint was lodged with the CMA for the first time on 12th August, 2016, having a total of 14 complainants and was registered as CMA/DSM/TEM/353/2016. However, the same was struck out on 16th November, 2016 for being incompetent, as it can be seen on page 21 of the record of appeal. The CMA Form 1 in this matter was thus, signed by Rose Ongara among others. She went on to state that, on 18th November, 2016 the law was amended to introduce section 32A of the Act as shown above. However, on 29th November, 2016, that is, eleven (11) days later, the respondents lodged another complaint under CMA Form 1 which was signed by Grace Lobulu, in which, Grace Ongara was not among the complainants. She went on submitting that, even the number of the complaint was different and referred us to pages 27 and 30 of the record of appeal, respectively. 5 Again, Ms. Lupondo referred the Court to page 319 of the record of appeal where the High Court discussed the appellants' point of preliminary objection before the CMA to the effect that, it had no jurisdiction. Despite the objection, she argued, the High Court made a finding that in order to determine the issue of jurisdiction, the date to be considered is that of the cause of action and not of filling the application; which for the purpose of this appeal, was 29th November, 2016. She argued further that, the High Court misdirected itself in so holding as it relied on the case of Joseph Khehani v. Nkasi District Council Civil Appeal No. 126 of 2019 (unreported); where it was held that, the amendment of the Act does not act retrospectively. She insisted that the CMA had no jurisdiction to hear matters brought before it after the amendment of the Act. In support of her argument, she referred us to our previous decision in Tanzania Posts Corporation v. Dominic A. Kalangi, Civil Appeal No. 12 of 2022 (unreported). She thus urged the Court to allow this complaint. Having adopted the respondents' written submissions, Mr. Shayo responded to the first issue arguing that, the High Court was justified to hold that the CMA had jurisdiction to entertain this matter because the respondents' complaint was instituted under section 2 (1) of the Employment and Labour Relations Act [Cap 366 RE 2019] (the ELRA). 6 According to him, this section applies to all employees, including Public Servants of the Government of Tanzania in Mainland, like the respondents except those who are excluded therein. Therefore, he insisted that, the dispute was instituted in a manner provided by the law. Mr. Shayo opposed the appellants' counsel averment that, the High Court did not consider the fact that before the CMA, the initial complaint was struck out. He submitted that the subsequent complaint had a bearing on the first one, a fact which makes it not to be a new complaint as Ms. Lupondo would like the Court to hold. As for him, it was proper for the High Court to find that the CMA had jurisdiction because the order striking out the respondents' complaint came out with leave to refile within fourteen (14) days, which they adhered to. It was his strong argument that, Section 32 A of the Act did not repeal Section 2 (1) of the ELRA. Therefore, even public servants like the respondents had the right to lodge their complaint with the CMA. As such, he said, section 32 A of the Act is a bad law because it only came to curb flood gates of litigation at the CMA which was a result of a deliberate crackdown on economic and corruption offenders during the former political regime. 7 We have carefully considered the rival submissions by the parties in respect of the first issue and examined the record of appeal. The arguments of the parties center on the jurisdiction of the CMA to entertain labour disputes instituted by public servants. In this matter, the interesting part is that the amendment of the Act vide the Written Laws (Miscellaneous Amendments) (No.3) Act of 2016, which introduced section 32A, came into operation while there was an order of the CMA granting the respondents leave to refile their complaint before it, having struck out the first complaint for being incompetent. Before we go further in our deliberation, we think, it is not insignificant to quote the provision under scrutiny; that is, section 32A of the Act. It reads: "A Public servant shall, prior to seeking remedies provided for in Labour Laws, exhaust all remedies provided for under this Act." [Emphasis Added]. The emphasis in the above provision, is that an aggrieved public servant, before embarking on seeking remedies under labour laws, he/she has first to exhaust all available remedies under the Act. In the present matter, there is no dispute that, before their termination from employment on 14th July, 2016, the respondents were public servants having been employed by the 1st appellant, a public institution created under section 4 of the National Health Insurance Fund Act, Cap 395 R.E. 8 2002. It is also not in dispute that after termination, the respondents lodged their complaint with the CMA on 12th August, 2016, which was struck out with leave to refile and on 29th November, 2016, they refiled a fresh complaint. However, the parties in this appeal parted their ways regarding what transpired thereafter. On one hand, the appellants claimed that the respondents7 refiled complaint was out of time following the amendment of the Act which introduced section 32A quoted above. On the other hand, the respondents' argument, which we partly agree, was that the said provision did not repeal section 2 of the ELRA which is applicable to all employees, excerpt members of Tanzania Peoples Defence Forces, the Police Force, the Prisons Services or the National Service Personnel. The above provision requires an aggrieved public servant to utilize all the internal mechanisms provided in the aforesaid Act before resorting to other available remedies under the labour laws. In terms of Section 25 (1) (a) (b) and (c) of the Act, the respondents, being public servants, had the opportunity to appeal to the Public Service Commission against their termination. If further aggrieved by the decision of the said Commission, they could have appealed to the President whose decision would have been final. 9 In his submission, Mr. Shayo was skeptical as far as the decision of the President is concerned. According to him, if that decision is final, then how could an aggrieved public servant get his/her right after that decision? We wish to point out that the object of section 32A of the Act is twofold. It gives remedies under the same Act but also after exhausting all the remedies available therein, it does not outlaw or prohibit an aggrieved public servant from resorting to other laws in pursuing his rights. What the section provides is that such other laws must be involved after invoking and exhausting all remedies available under the Act. In the current appeal, since the argument of the counsel for respondents is not that the respondents exhausted all internal mechanisms under the Act, with respect, we do not see the validity of their argument that, introduction of section 32A of the said Act came about to curb floodgates of litigations which was a result of the crackdown on embezzlement and economic criminals to put the Government at risk of losing significant number of labour cases which would be preferred at the CMA. We recall, Mr. Shayo called upon us to declare section 32 (A) of the Act unconstitutional, but we are not prepared to do so for this is not a proper forum. 10 Coming to the second limb of the first issue; the appellants fault the High Court Judge for holding that applicability of section 32A of the Act depends on the date of cause of action as the same does not act retrospectively as opposed to the date of filling a complaint. The premise that the above law does not act retrospectively was conceded by Ms. Lupondo save for the question on when it does start to operate. Ms. Lupondo submitted that the said law starts to operate from the date of filing a complaint. It was her argument that, since the respondents' first complaint before the CMA was struck out, it was as good as there was nothing pending before it. Mr. Shayo heid a different view based on the argument that, since the CMA granted the respondents leave to refile, the date of filing of the first application which was struck out should be taken as the proper date of filing the complaint. On our part, we think, the mere fact that, the CMA, while granting leave to refile presumed that at the time of refiling it wouid have jurisdiction, would not justify the respondents' complaint that the refiled complaint was a continuation of the previous complaint which had been struck out. We have reasons for our thinking. One, just as stated by Ms. Lupondo and indicated above, the parties in the initial complaint were different from the subsequent complaint. Second, the first complaint had a different number from the subsequent complaint; third, 11 when the first complaint was struck out it ceased to exist, such that at the time of filling the second complaint there was nothing like the first complaint, save for the order striking it out. The above reasons take us to determine when the said provision started to operate. In the circumstances of this matter, we are unable to go along with the arguments by the counsel for the respondents. Indeed, having been struck out, complaint No. CMA/DSM/TEM/353/2016 went out of the system with everything; which is why, when it was reopened, the number changed to CMA/DSM/TEM/541/2016/36/2017. Not only that, the number of complainants was reduced from 14 to 7. The CMA Form No. 1 was initially signed by Rose Ongara, but the second one was signed by Grace Lobulu and the said Rose Ongara did not feature in that Form. Therefore, we do not find it appropriate to hold that those were not two different applications. In the same vein, it is our observation and we so hold that, since the second application was filed on 29/11/2016 while section 32A of the Act came into operation on 18th November, 2016, the CMA had no jurisdiction to entertain it. In the light of the above discussion, we have no doubt that the High Court misdirected itself when it held that, the CMA had jurisdiction to entertain that matter. Having so established, we do not see the need to determine the second issue for so doing will serve no purpose. We 12 allow the appeal to the extent explained above. Having considered circumstances of this matter, we order that each party bears its own costs. DATED at DAR ES SALAAM this 9th day of March, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 12th day of April, 2024 in the presence of Ms. Happiness Nyabunya learned Principal State Attorney for the Appellants, , and Mr. George Ambrose Shayo, learned counsel for the Respondent is hereby certified as a true copy of the original. C. M. MAGESA I I I I I f l W ^ w r i i > DEPUTY REGISTRAR 1 ■ COURT OF APPEAL 13