omary bakari liyanga 2 others vs msajili wa vyama vya wafanyakazi na waajiri 2 others 2023 tzhcld 1423 27 september 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 185 OF 2023 OMARI BAKARI LIYANGA ……………………………….…….…. 1ST APPLICANT SAID KASIMU KILUKE …………….……………………….…..…. 2ND APPLICANT EPIPHANIA NGONYANI ……………………………………..….…. 3RD APPLICANT VERSUS MSAJILI WA VYAMA VYA WAFANYAKAZI NA WAAJIRI …. 1ST RESPONDENT MWANASHERIA MKUU WA SERIKALI ……………………… 2ND RESPONDENT CHAMA CHA WAFANYAKAZI WA HUDUMA ZA JAMII TANZANIA (TASIWU) ………….…..… 3RD RESPONDENT RULING Date of the last Order: 22/09/2023 Date of Ruling: 27/09/2023 B. E. K. Mganga, J. On 30th June 2023, the applicant filed this application under under Rule 24(1), (2)(a), (b), (c), (d), (e), (f), (3)(a), (b), (c), (d) and Rule 55(1) and (2) of the Labour Court Rules, GN. No. 106 of 2007 seeking the Court to set aside the decision of the Registrar of Workers 1 Organization and Employers Association hereinafter referred to as the Registrar, dated 11th February 2022. To support the Notice of Application, applicants filed their joint affidavit. On the other hand, both the 1st and 2nd respondents did not file the counter affidavit, but 3rd respondent filed the counter affidavit affirmed by Zuberi S. Madunda, her General Secretary to oppose the application. When the application was called on for hearing, Mr. Joseph Basheka, Personal Representative, appeared and argued for and on behalf of the applicants while Ms. Joyce Yonaz, State Attorney appeared and argued for and on behalf of the 1st and 2nd respondents and Mr. Evans Nzowa, advocate for the 3rd respondent. During hearing, the court asked Mr. Basheka on competence of this application. It was submissions by Mr. Basheka that applicants filed this application under Rule 55 of the Labour Court Rules, GN. No. 106 of 2007 because there is no specific rule covering a situation if a party is aggrieved with the decision of Registrar. Mr. Basheka submitted that, nullified election results without having jurisdiction because that is the jurisdiction of the Labour Court. When referred by the Court to the provisions of section 57 of the Employment and Labour Relations Act 2 [Cap. 366 R.E. 2019], he submitted that the said section relates to appeal against the decision of Registrar when issued with jurisdiction and that, the decision must relate to part IV of the Act. He was quick to submit that, the decision by the Registrar to nullify the results was not issued under Part IV of Cap. 366 R.E. 2019 (supra). When referred by the court to the provisions of section 53 of Cap. 366 R.E. 2019(supra), he readily conceded that the said section relates to election and is under part IV of Cap. 366 R.E. 2019(supra) referred in section 57 of Cap.366 R.E. 2019(supra). He conceded further that, section 52(1)(c) of Cap. 366 R.E. 2019(supra) relates to ballot papers hence deals with election matters. When further referred by the court to the provisions of Rule 28(1)(a) of the Labour Court Rules, GN. No. 106 of 2007, Mr. Basheka submitted that, an appeal is a creature of a statutes and that, the said rule is applicable when the person who made a decision had jurisdiction unlike to the application at hand where the Registrar had no jurisdiction. When referred to the provisions of Rule 29, 30 and 31 of GN. No. 106 of 2007, Mr. Basheka submitted that, Rule 29 relates to appeal and that the aggrieved party must file a notice of appeal. He added that, rule 30 requires the notice of appeal be served to the other party or parties and 3 that, rule 31 requires the memorandum of appeal be filed within 15 days from the date the aggrieved party was supplied with the copy of the decision and serve the other party or parties with the said memorandum of appeal. During submissions, the personal representative of the applicants conceded that, in the application at hand, there is no documents that were relied on or used by the 1st respondent to nullify election results. He conceded further that, applicants did not attach the constitution of the 3rd respondent that would have shown as who were eligible to participate in the election process or whether, members of the board of trustee of the 3rd respondent had power to vote or not. He conceded further that, there is no complaint that was received by the 3rd respondent that led the latter to nullify election results in which applicants were elected. The court also noted that, prior to this application, applicants filed Miscellaneous Application No. 87 of 2023. When asked as to why applicants filed the said application, the personal representative of the applicants submitted that, in the said application, applicants were seeking extension of time and that, the same was granted by this court. 4 He concluded his submissions that, the application was properly filed before this court. I should point out that I allowed counsel for the 1st and 2nd respondents to make submissions only on issues of laws as they did not file the counter affidavit. Ms. Yonaz, State Attorney for the 1st and 2nd respondents submitted that, in terms of section 94(1)(a) of Cap. 366 R.E. 2019 (supra), this court has powers to determine appeals against the decision of the Registrar made under Part IV of the Act. She submitted further that, section 57 of Cap. 366 R.E. 2019 (supra) provides that the decisions of the Registrar can be challenged by way of appeal. She added that, the said section does not provided that the appeal will cover only decisions made by the Registrar acting with jurisdiction and not those made without jurisdiction. The Learned State Attorney submitted further that, Rule 29 of GN. No. 106 of 2007 (supra) provides procedure of appeal including service of notice and that, Rule 30 of GN. No. 106 of 2007 (supra) requires the aggrieved party to serve the notice of appeal to the person who made the decision and any interested person so that the person whose decision is challenged can provide/supply proceedings. She submitted further that, Rule 31 of GN. No. 106 of 2007 (supra) requires the 5 appellant to file memorandum of appeal and serve the said memorandum of appeal accompanied with a certified copy of the decision to the other party. Learned State Attorney submitted further that, the application was improperly filed in Court because, applicants are challenging the decision of the Registrar but failed to follow proper procedures. She concluded that the application is incompetent and prayed the court to strike out. On his side, Mr. Nzowa, advocate for the 3rd respondent submitted that, in terms of section 43(2) of the Labour Institutions Act [Cap. 300 R.E. 2019], the Registrar is appointed by the Minister to regulate Employers Organizations and Federations under Part IV of Cap. 366 R.E. 2019 (supra). He added that, this section gives powers to the Registrar to regulate Trade Union etc. Mr. Nzowa submitted further that, any decision of the Registrar whether correct or wrong, is made under Part IV of Cap. 366 R.E. 2019 (supra) and that, any person aggrieved by the decision of the Registrar under Part IV of Cap. 366 R.E. 2019 (supra), must appeal to the Labour Court. Counsel for the 3rd respondent submitted further that, Rule 55(1) and (2) of GN. No. 106 of 2007 (supra) is applicable only where there is no rule in the said GN. He went on that, in the application at hand, applicants were supposed to appeal 6 because Rule 55(1) of GN. No. 106 of 2007 (supra) is not applicable. Mr. Nzowa concurred with submissions made on behalf of the 1st and 2nd respondents and the prayer thereof. In rejoinder submissions, Mr. Basheka, submitted that, section 57 of Cap. 366 R.E. 2007 (supra) applies only (i) when the Registrar refuses to register employee’s association under Section 48(4) of Cap. 366 R.E. 2019 (supra), and (ii) refusal of the Registrar to approve amendment of the constitution, the name, or regulations of the association under Section 50(1) of Cap. 366 R.E. 2019 (supra). He further submitted that, section 57 of Cap. 366 R.E. 2019 (supra) does not specifically provide that the appeal relates to decisions made under section 48(4) and 50(1) of Cap. 366 R.E. 2019 (supra) but, that is only by implication. He therefore prayed the court to allow the application. I have carefully considered submissions made on behalf of the parties in relation to competence of this application. It is undisputed that, applicants have filed this application to challenge the decision of the Registrar dated 11th February 2022. I should point out from the outset that, the issue is whether, applicants took a proper route to approach the court and not whether, the Registrar had jurisdiction or not to nullify election results. The issue whether, the Registrar acted 7 within his jurisdiction or not in nullifying the results can be considered in a later stage after the court has satisfied itself that the application was properly filed and that it is competently before it. This ruling is in respect of competency of the application only. It was correctly, in my view, submitted by both counsel for the respondents that, this court has powers, in terms of section 94(1)(a) of Cap. 366 R.E. 2019 (supra) to hear and determine appeals from the decisions of the Registrar made under Part IV of Cap. 366 R.E. 2019 (supra). It was also correctly, in my view, submitted by counsel for the 3rd respondent that, in terms of section 43(2) of Cap. 300 R.E. 2019 (supra) the Minister appoints the Registrar to regulate trade unions, employer organizations and federations under Part IV of Cap. 366 R.E. 2019 (supra). In fact, section 43(2) of Cap. 300 R.E. 2019(supra) provides: - “43(2) The Minister shall appoint a registrar of Organizations and a deputy Registrar who shall be responsible for the regulation of trade unions, employer organizations and federations under Part IV of the Employment and Labour Relations Act.” All issues relating to Trade Unions, employers’ Associations and Federations are provided for under Part IV of Cap. 366 R.E. 2019 (supra). This part covers sections 45 to 58 of Cap. 366 R.E. 2019 8 (supra). Part IV of the Act covers inter-alia requirement of registration, process of registration, constitutional requirements, non-compliance with the constitution and duties of registered organizations and federation, and power of the Registrar to make decisions just to mention a few. In my view, in making decisions, the Registrar may act within his jurisdiction or without jurisdiction and any party aggrieved, has a right to appeal before this court in terms of section 57 of Cap. 366 R.E. 2019 (supra) and the court, in terms of section 94(1) of Cap. 366 R.E. 2019(supra), has powers to hear and determine those appeals. Submissions by Mr. Basheka that the aggrieved party may only appeal against the decision made by the Registrar within his jurisdiction, in my view, cannot be correct because, the law simply provides that, any party aggrieved with the decision of the Registrar may appeal before this court. In my view, if the Registrar issues a decision without jurisdiction, then, that is the ground of appeal that can be decided on appeal. It was, in my view, correctly submitted by both counsel for the respondents that, procedures relating to appeal against the decision of the Registrar are provided for under the provisions of Rules 28, 29, 30 and 31 of the Labour Court Rules GN. No. 106 of 2007. Therefore, submissions by the personal representative of the applicants that, there 9 is no specific provision in GN. No. 106 of 2007 (supra) catering for the situation at hand, is not correct. It was not proper for the applicants to file this miscellaneous application under the provisions of Rule 55 of GN. No. 106 of 2007 (supra) instead of filing an appeal. Rule 30(1) of GN. No. 106 of 2007 (supra) requires the aggrieved party to file the notice of appeal within fifteen days of the date on which the decision which is a subject of appeal was notified. Since the decision of the Registrar was issued on 11th February 2022 and it appears that applicants were out time, they were supposed, in terms of Rule 56 of GN. No. 106 of 2007 (supra), to file an application for extension of time to file the notice of appeal and extension of time to file the memorandum of appeal. During submissions, Mr. Basheka submitted that, applicants filed Miscellaneous Application No. 87 of 2023 seeking extension of time and that, the application was granted. I have read the ruling of this court (Hon. Mlyambina, J) in Miscellaneous Application No. 87 of 2023 attached to this application and find that, in the said application, applicants were seeking extension of time within which to file an application to set aside the decision issued by the Registrar on 11th February 2022 and that the same was granted. That application, in my 10 view, has nothing to do with application for extension of time within which to file the notice of appeal and extension of time within which to file the memorandum of appeal against the decision of the Registrar. For all discussed hereinabove, I find that the application was improperly filed before the court and that, it is incompetent. I therefore strike it out. Dated at Dar es salaam this 27th September 2023 B. E. K. Mganga JUDGE Ruling delivered on 27th September 2023 in chambers in the presence of Joseph Basheka, Personal Representative of the Applicants, Joyce Yonaz, State Attorney, for the 1st and 2nd Respondents and Evans Nzowa, Advocate for the 3rd Respondent. B. E. K. Mganga JUDGE 11