LABOUR APPEAL NO 9236 OF 2024 OMARI BAKARI LIYANGA VRS MSAJILI WA VYAMA VYA WAFANYAKAZI NA MWAJIRI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR APPEAL NO. 9236 OF 2024 CASE REFERENCE NO. 202404281000009236 BETWEEN OMARI BAKARI LIYANGA ........... ................ .... ..... ........ 1st APPELLANT SAID KASIMU KILUKE............. .................... 2nd APPELLANT EPIPHANIA NGONYANI......... ............... ..............................3rd APPEALLANT VERSUS MSAJILI WA VYAMA VYA WAFANYAKAZI NA WAAJIRI ....... 1st RESPONDENT CHAMA CHA WAFANYAKAZI WA HUDUMA ZA JAMII TANZANIA (TASIWU) .......................... 2nd RESPONDENT JUDGEMENT Date of last Order: 26/ 08/2024 Date of Judgement: 12/ 09/2024 MLYAMBINA, J. The Appellants being aggrieved with a decision of Msajili wa Vyama vya Wafanyakazi na Waajiri issued on the 11th day of February 2022 are now appealing to this Court against the said decision on the following grounds: i. That, the 1st Respondent erred in law by entertaining compiaints relating to election conducted on 25 May 2021 by the 2nd Respondent ii. That, the 1st Respondent's decision to set aside election was made withoutjurisdiction. The application was disposed by way of written submissions. Before the Court, the Appellants were represented by Mr. Joseph Basheka, Personal representative. On the other side, the first Respondent was represented by Ms. Joyce Senkondo Yonazi, Senior State Attorney while Mr. Nzowa E. R, learned Counsel appeared for the second Respondent. The first ground question issues of jurisdiction. It was Mr. Basheka's submission that since there is no any provisions of the law which confer power to the 1st Respondent to determine complaints relating to election conducted by a trade union, then the 1st Respondent's decision to set aside election was made without jurisdiction. Further, it was submitted by Mr. Basheka that powers to set aside election conducted by a trade union is vested in the High Court of the United Republic of Tanzania Labour Division according to the provisions of Section 53(1) o f the Employment and Labour Relations A ct [Cap 366 R.E 2019] (herein ELRAJ Mr. Basheka went on to submit that the 1st Respondent’s decision can be seen at page 3 paragraph 1 & page 4 paragraph 1 of her decision where she has this to say among other things, I quote: Kwa kuwa Mwenyekiti wa chama sio Mtendaji anakosa sifa na hawezi kuajiriwa na chama na kulipwa posho. Kwa 2 mantiki hiyo nafasi yake inatenguliwa na uchaguzi ufanyike kuziba nafasi yake iliyotenguliwa. Kutokana na ukiukwaji wa kifungu hiki, nafasi ya Naibu Katibu Mkuu (ambaye ni ndugu Omari Bakari Liyanga na Mweka hazina (ambaye ni ndugu Epiphania Ngonyani) zimetenguliwa kwa sababu zilipatikana kinyume na katiba badala yake naagiza Baraza kuu likiwa na wajumbe halali likae tena na kuwateua wajumbe watakao hudumu katika nafasi hizo kwa kuzingatia katiba ya chama. Mr. Basheka argued that; since the decision to set aside election was made without jurisdiction, that decision is null and void in the eyes of law and cannot be left to stand. He further added that; the error which was committed by the 1st Respondent to assume jurisdiction which she doesn't have can be corrected by this Court. In response, Ms. Yonazi for the first Respondent submitted that the Registrar had powers to conduct the meeting as it was done and to advise on invalidity of election results. Further, Section 53 (supra), is not in mandatory term as the word used is "may" and therefore, is not mandatory for the Registrar to file an application to the Labour Court in case of any complaints. That, it is trite law the word "shall" entails mandatory requirement but the word "may" is optional. So, the requirement explained by the Appellant Representative is optional. In support of the submission, she made reference to Section 53 o f Interpretation o f Laws A ct [Cap. 1 Revised Edition 2020] (herein I LA). It was further submitted in reply by Ms. Yonazi that the Registrar's role is to ensure the Constitution of the 2nd Respondent is adhered. Therefore, the act of the Registrar is legal as the Registrar was exercising statutory duties of regulating, hence possesses the authority to advise on the invalidity of election results. He stated that the letter which is referred by the Appellants as a decision was addressed to the General Secretary of TASIWU as feedback of the meeting and the Appellants misconceived it and regarded it as a decision and surprisingly now appealing against it. As for the second Respondent, Mr. Nzowa supported the 1st Respondent's submission that the Registrar did not set aside the election. But she directed three positions to be vacated, the position of Chairperson for reason that Mr. Said Kiluke was not an employee hence he is not a member of TASIWU, the position of Deputy General Secretary (Mr. Omary Bakari Liyanga) and Treasury (Epiphania Ngonyani) for the reason that Members of Board of Trustees who are not Members of General Council (Baraza kuu) voted in violation of TASIWU Constitution. As regards to the content of the later dated 11/02/2022 with Ref No. DA27/350/21/ to the General Secretary of TASIWU, it is very clear that all the stakeholders concerned including the Appellants participated in a very serious conversation and consultation and agreed on the way forward and the said letter was written after the consultation. That, the Appellants also participated in the consultation. He therefore urged the Court to dismiss the application. I have heard the submissions of both parties. The issue to be determined is; whether the 1st Respondent exercised the jurisdiction vested to him. It is a well settled principle that jurisdiction is the bedrock on which the Court or any other body gains authority and competence to entertain and decide matters rests. This is the Court's decision in the case of Said Mohmed Said v. Muhusin Amir and Another, Civil Application No. 110 of 2020, Court of Appeal of Tanzania at Dar es Salaam. The Registrar in this matter is the one appointed as per Section 43(2) o f the Labour Institutions A ct [Cap 300 Revised Edition 2019] {herein LIA). Among others, the duties of the Registrar is to register any organization or trade union as per Section 48 o f the ELRA (supra) and the general role of overseeing the compliance of the registered trade union or organization. In the case at hand, it is the Appellant's position that the Registrar exercised the power not vested to him by setting aside the election, hence contrary to Section 53 o f the ELRA (supra) which provides that: Where a federation or registered organization fails to comply with its constitution, the Registrar or member of the federation or registered organization may apply to the Labour Court for appropriate order including, a) setting aside any decision, agreement or election. As per the Section 53 o f the ELRA (supra), the powers to set aside any decision, agreement or election is vested to the Labour Court. In this case, looking at the content of the letter written by the Registrar as partly reproduced at page 3 of this decision, is self explanatory that the Registrar sat aside the election and ordered for re election. He nullified the election of the Appellants herein for failure to observe the constitution. Much as the Registrar was ordering the trade union to comply with its constitution which is a good thing, I find such order to be ultra vires. As per Section 53 (supra), if the federation failed to comply with its constitution, the Registrar had to refer the matter before the Labour Court. I agree with Mr. Nzowa's argument that the wording used in Section 53 (supra) is "may" which does not signify mandatory as per Section 53 o f the ILA (supra). It is my view that the word "may" used in the relevant provision was an option between the Registrar or member of the trade union to refer the matter before the Labour Court and not otherwise. If the power to set aside the election was meant to be vested to the 1st Respondent, the law should have stated so explicitly. In absence of clear provision to that effect, such powers remain within the domain of the Labour Court. In their application, the Appellants prayed for the following orders: 1.That, the 1st Respondent's decision issued on 11 February be quashed and set aside. 2.That, the 2nd Respondent be ordered to allow the Appellants to perform their duties. It is my finding that since the Registrar acted beyond his/her powers, such decision is hereby quashed and set aside. As for the second prayer, it was Mr. Nzowa's argument that it is overtaken by events and or is misplaced, because at this juncture this Hon. Court is not in a position to determine some federal issues as to whether the Appellants vacated themselves from office or they were removed by 2nd Respondent following the directive o f the Registrar. Mr. Nzowa was of the opinion that the Appellant are supposed to file a dispute so that the factual issues can be examined and determined after the parties presented the relevant evidence. In support of the argument, he referred the Court to the case of Conrad Berege v. Registrar of Cooperative Societies and The Attorney General (1998) T.LR where the Court held: A decision made without jurisdiction or in violation of the rules of natural justice it does not always follow that a party adversely affected thereby will be able to have it set a side In deciding whether certiorari should issue the Court will invariably take into account a number of factors, eg the conduct of the applicant in relation to the proceeding, the possibility of implementing the decision, whether any useful purpose would be served and even the practical consequences of the decision in the light of the peculiar circumstances of each case...in organized human society the right of the community take precedent over the rights of the individual member... In the circumstances of this case, I find Mr. Nzowa's arguments stands to be the correct position. There is no any evidence in record to rebut what was stated by the Registrar in the letter dated 11/02/2022. The Appellants only insisted that the Registrar acted beyond his powers but they did not dispute to the truthfulness or not of the contents stated therein. Therefore, at this juncture, it is uncertain if the Appellants are eligible candidates or not. On such basis, this Court cannot proceed to order them resume their duties. As Mr. Nzowa suggested, it is the dispute which ought to be determined by evidence presented from both parties. Thus, the order is hereby declined. In the result, I find the present application has partly succeeded. The Registrar's decision is hereby quashed and set aside. It is so ordered. Y. J. MLYAMBINA JUDGE 12/09/2024 Judgement pronounced and dated this 12th September, 2024 in the presence of Joseph Basheka, Personal Representative of the Appellant and learned State Attorney Pantaleo Urasa for the 1st Respondent and Counsel Evans Nzowa for the 2nd Respondent. Y. J. MLYAMBINA JUDGE 12/09/2024