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- IN -THE HIGH COURT OF TANZANIA AT DAR ES SALAAM .MISC. CIV. CAUSE, NO. 37 /93 'NELS9N MREMA & 4 OTHERS ••••••• PPPELLANT Versus. KILIMANJARO .TEXTILE CO. ··:} .. (KILTEX) .·· '·" . .,..... .& ANOTHER •••• , •.••••••• RES?ONDENT . . -~ ~ .! '! 'KYANOO Ii J: •• • °1his is an application for the pre~ogative order of I .~rtrorari.to·remove into this. co~rt and quash the decisi~n .1 ~ the Minister for Labour and Youth Development made on 18th -~: September, 1992, in a trade dispute between the applicants and their employer, Kilimanjaro Ti&_ctile Corporation (Kiltex) 1 the first . :. respondent herein .. · Ir/ app'lication . to amend . the - 9riginal application~ filed on 10th. July;. . 1995,.. the applicants • • • . ·. • V •· in .'.paragraph 9 · prayed to add the word "mandamus" in the trigfu~ ·application. That application wa~. grant,E;r;l'..by this ·· ~ r t , al though by- adding only the word 11 Mroidaro~s 1~- it is_ not · :· · el ear what the ar.tual relief sought would then be. By thil5 we mean· that 1 t is not shown in the application what the ·erder ~:t mandamus is sought for. Be that-as it may, according to the filed papers, i.e the statement and the affidavit in support, the 415 applica.nt, were all employees of Kiltex but by letters served on each ... .· j wie ,. ·- ,..... _•f ~hem in around 1988 they werereduced from the workforee 1,: • ·• ,:t· Kil tex. 1 The reasons for their reductions were stated in · ·i 1·. l the letters as cost cutting and improvement in Kiltex's \ efficiency-. It was stated in the first pragraph of the lette:rs that for a long time Kiltex had been facing the problem of I. lar:-k of funds with which to purchase raw materials and . "Tati~~-hilo pamoja na uhaba wa maji na spea umesababisha uzalishaji mali katika kiwanda cha Dar es Salaam kuwa chini na wakati mwingine kusi.mama kabisa 11 .. The solution to these problems was stated to be the reduction of employees which exercise affected the applic~nts. t.' I• .... : ... •· ,, I -- The ,-applicants s:tate in the statement and affidavit - .. that ..Ji~1-were-aggrieved by_ the decision to redue:e :them and complaiAed to their JU.WA'TA (now OTTU) Branch about it • . ' I:-' •· Eventugly th~ _!Ilatter reached the Deputy Secretary General o! OT'IU tth;t de~i~red a trade dispute and referred the·--dis_p~te ·to the Cornriiissioner for Labour. ·.· i The Commlssioner :for Labour, with the approval of the , .! . :C • : Minis;i{.' •t 'fa; Labour, the second respondent herein, submitted :.. · I • . r! ·: the dispute to the Industrial Court, under Section 9A o:f ·the ermari~lh ·,-~· •. ,p .· r,·.;·_ r-r'-i:. Laboti.r~ :t ,.· Tribuncil _Act, 1967, · as ~ended, :., · · .. · for inquiry. ::1i \-: . ·The . Ind.U.striai- ;. .;_,_)::.,.;.:· ' . ·f· Court inquired into the dispute and then for~ . ·. . .· ·• '. . ' { warq~ . •• .l !··· 4_·-'.lts ··:••,.1 .· . t '.: 1 f1-~\9-ings . .. to the Minister for Labour for decisio_n, · i i'I/ 1 ••.•• • • • •• , • t • ;, . ;on: _18th'-'"September, 1992, the Minister gave hi~ -decision and. I.it wis. read t~ the. applicants by the Indµ-strittl. Court of · '\.:· ~ I J I ( 'Tanz~a on_- 4th November, 1992. In his decision the Ministe \;:-- 7 - r ~lliai1d the decision of the 1st respondent, Kil tex, to redu~~- \ : I ) . the applicants from its workforce. The applicants were aggrieved by that decision , "- and are now,. by thi·s applica-.\ . ' tion; ~hallenging it in this court. They are represented bj.._ f Mr.- Magessa., learned Advocate. The second respondent is \ ( represented by Mr. Mallaba from the Chambers of the Attorney \. ' ''. ' \. General. Both counsel have filed w:i;-itten submissions on the i •,' ( application. I - ·The applicants have stated the grounds for their disatis. fa~tion with the decision of the Minister for Labour as ,, 1 folll'.'ws:- I '· ; I 10 (l) -The Minister.erred in law in holding I I that the first respondent (Kiltex) ! -complied with Section 6 (1) (g) of \\ l the Security of Employment Act, 1964. ( 2) The Minister erred in law in holding \ that it was not necessary to follow I the FILO proKedure in deciding who should be 11 declared redundant. I ( \ }· I ·---- :ii~ i<: ':'. ·_'1 ;:~ ;~; :i~l!Yf = 3 declare L the 415 applicants redundant without following the laid down lawful proce- ' ·i ~ ,. dure. .~$~k1.'::" ·. ., ? . ;:f,), (4)L.t-'l\ie Minister erred in law in deciding ,:/t'(.);_,_ -~j::.:'1!•::;:.-",1;':J.~;;:r::...:; ·, • I; , • .. :f .· \4 .. . •. • " • •••'• •... ,:,~Y?.+;'.. -;{.tthis m·atter as he!" himself had. authorised . ,· -~/--.t:~(: : ;·• ·.ft•:;_.~, j ;_ I_" !' .••• ':{;~: i f . /:::l · ;_, /tne redundancy of the applicants when was Minidter :or Industries and Trade. ! _)he"g:(o\mds for awarding certiorari __are now fairly well :·-, / · estab~ished and specific. These are lack of juridisction, erro-i:tof.la,,:, on the face of the record, breach of rules of natui~l justice and Fra~d or. Coliusion (aee s_.A de Smith, I ~ ~ . . ' . ' · i· Judicial· Review· of Administrative Action, 3rd Edn. p .p 349 .. .i.1' . ' ~56~~ ;~:· · IOne. of the points taken by Mr. Mallaba in his submissi~na-· against the grounds for the a~w½~!~\.-Fs'et out above is that the 'application is more in the nature of an' appeal from· the Minister 1 s decision than one for certiora:ti. Mr. Mallaba states:- 11 . - :- coming to the substantive - application, it is an application for _:.!:,' the prerogative order of certiorari, such applications are not supposed to . be applied as avenues of appeal. With due respect, in the present matter, to a very big extent the applicants are attempting to use the application as if tluey were appealing against the decision of the Honourable Minister for Labour -, ------ errorcus..tomarilv.., or l.aw-on ~~e c.ertiorori race or lies forLthe record and for error of juris- diction. These general principles, in ) _, I the course of interpretation, may be sub- jected to great extensions. Error of jurisdiction fo~ example-~~~~~ ?~~~i[~~ by an administrative body,.that has a duty to act judj ,:i:-:1, :', tc follow so:ne \ ~ ': . .' -:--·J; ::-'-~. ';;:>_:~:-:--:--:--:\. ~:-s.~./---. --._ 4 .,o~"the cardinal. principles of natural. )f •·t . , ._ .-· !A _ :·j~-~~ice including one . express~d in the '.}li (j. 1'.':){(!iJ...:J~if tha! ( a_ ~ah cannot be fj~dge in his 1 J.;j{ / ! ~-\ L!f. J/~~:~ause • i:,B~~s is another. The other l;f._i'-:::'.>' <?·· '.-,f, bc'ara.inal prihciples o:f --natural justice is .r~·]r·; ~:t/l_~t~•.: J:~f.L J}~1~·- .)}:·.:µ~~~~~. ·. . · ~ : t ~ · . f:i~,-.,t,·.,,;,.,·_-_,,._,.-:c:•-.;_·,:-Jr --~~eJCpressed in a latin maxim 11 ·audi:"'.~ ·:.·f _.:·1t/J··tnf~'f~j~tRtt.1~,;: :~·li:~:·?t:}.,~r:._:t"-c· ·· 1: · · · ··: . .·• : ::,.:·. tf:,·t\f'<J. ;,part'e!m 11 Both sides of a case must be heard ~r 1):1~;:~-·!F~, f :J ::,,y,b_efore ti{('.!ht,,¥~'~f-~-t,,h;,,"~:. ·\:i-·:1: ,,,~~·.:; · the • matter is decided. !~!r/iDf.f:\;'Jl ;,,·tt:, '.:"--~"')r:·· I~ ~iew o:f the outgoing paragraph of ,.;~: a:I.l the grounds raised in the statement accompanying the application, in our considered opinion, it is only the fifth one that has_a semblance of grounds supposed to be raised in applications for prerogative orders. ·There is an allegation that the Honourable Minister for Labour 11 became a judge in his own cause 11 : .j .. . In other ··•·\ ., . . ,... · ' words Mr. Mallaba submits that none of the - ;.j ~l·:·.L grounds for thEl award of certiori have been pleaded 1 ... ".\·,. ~ .: ·::,):~!·:: ;·l)~ · :~· :.::_..l• ·' !i · i "· , by_ .the _,~pp_J.icants in this application. In this we find (_-: :. ci~J~/e1 ~~s :in tot.al agreement with Mr. Mallaba. Indeed none . :·-:,'/tb~'1 1 1 'XI'; ~o~ds we have s~t out above, i.e lack of jurisditti!'n .. L.1 ;:_;:;. ,··. .: : .. ,~}{··. ~\ . "T:: .re;r17f;. ~t l_~,,. on the. face of. the record, breach of rules of · ' na\ura1e justice and fraud or collusion, feature anywhere in th• whole application. In his submissions in reply to those of Mr. Mallab, Mr. Ma.gessa stat~ that certrorari would lie by virtue of the ground 11 which has demonstrated that the 5_econd respr.ndent breached principles of natural. justice by deciding the applicants' case when he himpelf had approved - I ' - . their pames to be included in the redunda.'1.cy list, 11 He 5ays that naturally the second respondent would not have ~'d::~ .. II I ~mself and that this was bias ·1 "which tainted his dec}~ioI?- 11 J We have examined all the documents filed but we find in them nt. evideMe . I ~f the Minister having approved the names ,t the • applicants !~r inclusiol} ~:: •.\,:.. •. •.:;~ of the applicants ·::, r· . . r . ;.-·:-c·ii,.:.:..:-~. in the list of workers to be reduced. There is n~ sucl\"' evid~nce· in the af:f'idavi t of N elsori Mr·ema, . which is the .' only affidavit filed in suppor4- ...,-!" t:1"' -:i,;:i-::ilic-· ... '.·:-:·,, to \ : 9(/, 'I : . . . / a = j 'N-0 document has be~n filed to support the allegatiort~ .The allegation is only in the statement and, with no evidence. to 5Upport it, it remains a mere, unsubtantiated, allegation We cannot hold therefore that the Minister who made the de.c:i.'si~p~-~'tf:g- is the same who approved .the inclusiqn of the appi.icants names in the list for reduction. Mr •. Magessa in his reply also states that in the other grounds ...~. the applicants have shown that there are errors of law' in the decision of.the second respondent, 11 such as that •· . :'of .holding :that Section 6 (l) (g) of the security of 1 \/:}l .'.~ Emplo~~z:i.t, Act, 1~67, wr3-s· c ompliea. with when.it was not and 0 jf:;.i ;by uph1l~~g. ~ reduncancy which was. not' based on FIL0 11 for 'I· oa:rtio~ari ~0- lie •. We ar~ of tJ:l ➔ opinion that_ these complaint~ .L go to 1~significant details in the Minister's decision • 1 . i''-'. Cons~deping that certiorari is a discretionery remedy 1 .we 1; •! · do riot }hink that these. details would be sufficient grounds for quashing the decision of the Minister. Over and above all; ~e think it important to consider the nature of the exercise which l~d to the applicants 1 s· loss·of employment. W?s it a redundancy exercise? If it.was it may have been \ . necess;ary for Kiltex to comply with the provisions of Section 6 (l) (g) and FILO in carrying it out. If it was something .alse; we would not be inclined to·hold that Section 6 (1) (g) and the. FILO formula·r had to be compli~· with. On 6.5.93 when the matter was.before, our brother.Mapigano J/ . for _leave to file this· application M~a . . ' .. , fpr the ;es ... ·pendents intormed the court that the first respondent, Kil tex, had ·closed business and she wondered ~3C'., the relief ·'" :·, 'asked for in the application. could be m~aningfully granted" ;; ,_', T, this Mr. Magessa for the applicants re1)lied that the . : ,~:·: ;first respondent had another factory at Arusha which was : -~till in operation. However, in the filed papers there i,s no •indication of how the Arusha factory is related to the first respondent. It could be an altogether independent -entity. And for all we know, as intimated to the court by ~ . - ·t~ Macha on 6.5~93, the first respondent's Dar es Salaam Factory where the applicants were employed, closed busine·ss a lbn.g time ~o, / -.. ·-· ··--......_ r·. r, /, I c.ontained tenns- and conditions for redundancies. Tanzania • • I . . . ,.,, P:..10e C9mpany . . ceased operations and therefore terminated the ,~;,· emplo~ent of its entire workforce. The employees sought to ·J . :1 enforcE: th~ redundancy clauses in the agreement by claiming entitlements as stipulated in the agreement. The eourt of Appeal;.of Tanzania considered whether the termination of the ::;·_~pJ'gy~{jf' ·1;.~.tt: .:.,.,:..,.t~~fi.;h~~:,.: ~:... ·-,j\·l(f. · .:- ·. 1 J!71ployment in_ithe circumstances was a redundancy ·' exercisff and held:.;. ,i\ ; _~- ;:\;. F ·/ ::f II Redundance. a's'. the :learned trial judge correctly . . -~ • •. I \/l'~• ; :' ' stated.:implies unneeded surplus workers in a going:~-9}~.~l . . arid thi~ is what the parties ' . ., to the·Voluntary Agreement must have had in ., mind. - -They could never have contemplated the provisions for redundant workers to apply to a situation where the entire workforce ..was no longer needed on the basis that the employer was not tunctioning commercially •11 ' As-we have indicated above Kiltex is not functioning . ·. flommer~ially at the moment. The reduction of the ·414 employees i ::-·(the appl1cants)- from its work force cannot be said to have ;Loeen a redundancy exercise. The FILO formular or Section -A. .1. 6 (l) (g) of the Security of Employment Oi:Q,, therefore did not ; _.: have any application to it. We reject for this reason the 1 :;•: .. ,.iontentions that the FILO formular and Section 6 (1) (g) should ·, .• have. been followed or comiliet with in the exercise. "! .We see no other grounds of substance in the application • ; :we agree·,· as hinted earlier on 13:bove, with Mr r Mall ab a that this a?plicatio?'1' in the ~ . . !l.'1Cr ~ t 1-- ·s b -pre':'"· >:1ted, 0 ~:-. 1 _,<• I \..· -- ...