nbc limited vs minister for labour 2003 tzhc 42 13 may 2003

IN THE HIGH COURT OF 'L^Z/iNIA AT DAR E3 SALAAM n i w r 11 1 — ~^ " m " MISC. CIVIL CAUSE NO. 73 OF 2002 NBC LIMITED . . . o • APPLIC-JIT Versus 1. 'MINISTER FOE LABOUR )^ # # RESPONDENTS 2. ATTORNEY GBSNlB/vL )

RULING Ihetna. J. On 7th August 2002, the National Bank of Commerce Ltd as applicant, filed a Chamber Summons pursuant to section 2 (2) of the Judicature and Application of lews Ordinance Cap. ^53, section 17 A of the law Reform (Fatal Accidents and Miscellaneous 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 Minister of labour and Y o u t h Development dated 27th October, 2001. The applicant also prayed for costs. As is usual in such an application Hona Jordaan, Head of Human Resources Department of the applicant swore an affidavit in support while Kibodya law Chambers filed a otatement. In her affidavit Fiona Jordaan has deponed among others to the effect that ’’the Minister committed an apparent error in law when he purported to exercise revisionary powers which powers he does not have when dealing with the reference before him from a ncoc-existing judicial body, namely the Dar es Salaam Regional Conciliation Board.**’ In addition the learned advocates for the applicant have asserted in their statement lack of revisional jurisdiction by the Minister to order a retrial of the dispute before the appropriate District Conciliation Board, As such the existence of an apparent error of law amenable 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 Minister's decision ordering a re-hearinc of the matter by the District Conciliation Board was properly made and was in accordance v/ith the law. m /2 2 Both parties have presented written submissions to argue the application* Before I deal with the parties* submissions I find it appropriate to give a summary of the background which has given rise to the application under consideration* On 13th September 2000 Mrs Bernadina Nyange an employee of NBC Ltd the applicant was summarily dismissed from employment for alleged misuse of medical priviledges offered to her. Mrs. Nyange was accused of occasioning loss to her employer by allowing unauthorised dependant access to medical services paid for by the Bank. Being dissatified with the disciplinary action she refered the matter to the Bar es Salaam Region Conciliation Board, a creature which did not exist in law. The T!Board;i after hearing the parties ordered reinstatement of Mrs Nyange on the ground among others that there was no proof of the extent of loss alleged, ’ ilSeapplicant was dissatified by the decision of the Board and referred the matter to the Minister of labour who directed re-hearing afresh of the reference by a proper Conciliation Board due to the fact that Bar es Salaam

Region Conciliation Board was non existent in law. It is this decision which has given arise to the application for writ of certiorari* It is not in dispute that ne the Dar es Salaam Region Conciliation Board is not a creature known to law as such the decision it purported to make on 18th December 2000 was a nothing. There was therefore no decision before the Minister to adjudicate upon and dismiss as contended by Kibodya law Chambers. It would follow in ray considered view that the rational decision for the Minister to make was to redirect a rehearing of the disivute (matter) before a competent . . envisaged , conciliation board. This in my view is a decision ._ by tne provisions of section 26 (2) of the Security of Employment Act Section 26 (2) provides: "Where any natter is referred to the Minister under this section, the Minister shall, as soon as is practicable, give a- depislon therieon and in the performance of his functions under this section, the Minister may exercise the powers conferred on a Board by section 24 (in so far as they are applicable to the reference to him); and the provisions of section 25 shall apply to and in respect of the decisions of the Minister as they apply to and in respect of the decisions of the Board,1' i»«/5 : 3 * : Furthermore I agree with the submissions by the learned State Attorney that **by so doinG the Minister did not to exercise revisional powers1' on the reference which was properly before him in terms of section 26 (2) of the Security of Employment Act 19^« For the foregoing reasons I hold that the application for the writ of certiorari is devoid of merits and I dismiss it with costs. I so order* S. Ihema

JUDGE Court: Ruling delivered to-day in chambers before hr. Mbepela for Kibodya learned iidvocate and in the absence of the respondents to be notified# \ *■ s v; / \ \ S. Ihema

JUDGE 13/05/2003