19970506 TZHC Dar es Salaam 1

IN THE HlGH COUR~ OF T.ANiANIA AT DAR ;i;S SALAAM. _ .........•..t:•----~-=........- I.'.1,~Sq_~f1V~1:!.:PAUSE: .l'i_O ·A-~•~L~ RAJAN;t INDUSTRIES LTD o O o o o o .APPLICANT c VERSUS THE MINISTER FOR LABOUR • o • • • • RESPONDENT RU L I N G: MSUMI,J. ---=-,a .....- - . ..... _ ... T,his is an application for the prerogative orders of Ce~tiOl"aJ'' amd Mandamus against the appellate decision of the Minister for Labour sett:i,J,.g aside the decision of Temeke District Conciliation Board, hereinafter referred as the Boardo Prior to their dispute which gave rise to these proceedings the applicant and one Wilfred Watson Chikoya, who in this ruling w:i.ll be conviniently referred as the appellant, were in the relationship of employer and employee. The appellant filed an appeal to the Board after the applicant had terminated his service by a lettey dated 17/5/91. After full hearing of the said complaint, the Board I upheld the terminationoD~1~ththis finding appellant decided to appeal to the Minister for labour who allowed the appeal and orde~ed .for reinstatement of the appellant. In the present proceedings the applicant is challenging the legality of the said decision of the Minister. Besides the affidavit, the grounds upon which the application u bMed are provided.in paragraph 5 of statement which, for convinien•e'• J sake is hereby reproduced. 5. The grounds upon which the said reli~fs are sought are as follow,:- {a) o The Minister for labour/Labour Commissioner failed to follow the principles of natural justice in that, (i) He failed to hold due and judicially pr~per enquiJy ~d or hearing by acting on memorandum of the appellant••••·••• alone contrary to section 43 of the 6ecurity of Emplo1fflt~t Act No. 62 of 1964 Cap 5740 (ii) He failed to hold due and judicially proper enqu~ a.Ad or hearing by not calling any evidence or elicit;ng aJI.Y information :em~ to the circumstances under whifh ' the conciliation Board ordered the employment of the second respondent ( appe11:t~~ ~~ to be terminated~ (b) • The Minister for labour/Labour Comm.issioner faired t"o <?ft judicially in that he denied and/or neg~eeted to give the applicant an opportunity.of submitting his reply to the memorandum. of apil,ea). submi ttad ,1 :ct'the second respondent ' to him. 1 ' rW,,trf 1 - 2 - (c). The decision of the Minister ·for Labour/Labour C Commissioner displays manifests errors of law on the face in that . - . (i) It holds that the Minister for Labour (Labop Commissioner) can act on memorandum of the appellant aloneo (ii) It gives no reasons for reversing the decisip of the Conciliation Board. (iii) It is an abuse of the admistrative and statl,tto~Y powers. Ex~pt for containing some evidential factual assertions, in addition; ,he above mentioned grounds are substantially repealed in the applicant'~ affidavit .. Significantly in his affidavit the applicant deposes among otlte» facts, that he could not reply to the memorandum of appeal because he was~•~ supplied in time with the proceedings and decision of the Board despite his written application for them. Through the counter affidavit of one Abraham I,. Mdarno who identified himself as Labour Commissioner, respondent - made general denial of the~ie contentions and demanded for strict proof of the sameo The appJicant is attacking the Minister's decision essentially on two grounds. First the failure by the Board to supply him with a copy of its deoision together with the proceedings has denied, him of his right to nrepare his detence against the appeal in questiono And secondly that vne Minister has not given any reason in support of his decisiono With respech, both complaints are quite valido Annexture D to the affidavit is a letter dated 25/8/92 vide which the Board sent the proceedin~• to the applicant. However, on top of the said letter is h..11,:rintec. with a re•~ipt stamp of the applicant showing that the said letter together with it• enclosure were received on 10/11/92, that is about seven days after the de~ision of the Minister was delivered on 3/11/920 This Contention is one of the assertions deposed by the applicant in his affidavit. In his counte~ ~fidavit, respondent made no attempt to controvert this allegation except offering general denialo As the matter stands it is very likely that the 1aid letter was received on the stamped date. Again there is an unchallenged pief'e of evidence,· demonstrated by the applicants letter of 6/8/92 requesting the Board to supply him with a copy of the proceedings., There is no specif~ denial by the respondent that the said letter was never received by the Board. It is thus a fact that the Board failed to supply the applicant with a eepy of the proceedings thereby denying him reasonab,J.e oppoPtunity to prepare his defent-e to the appealo For this reas.o]l the act of tho Minister of proceeding - z - - 3 - With the appeal a~d eventually issue the judgment in question amounted to condemning the applicant unheard which is contrary to the principles of natural justice. The copy of the decision of the Minister produced as Annexture C to the applicant ·speaks loudly and ~learly in support of the complaint. It contains no reason for the said decision. In his submission the learned atate Attorney contended that annexture C was just a summary of the deciJS~O~ and that there is a d9 ,~le_d judgmen_t supported by reasons. Surprisingly this contention was never deposed in the counter affidavit and even more surprisingly the learned State Attorney never availed the court with said copy fnr perusal. Iam of the· respectful opinion that in upsetting _the well argued decision of the Board, the Minister took no pain to give reasons why he decided the way he did. It·is definate that this is a misuse of the statutory power conferred on him. This court has a duty, under its preri- gativ~ power~ to correct this legal malpra-0tice. Accordingly the preyer for order of certiorari is granted hence the decision of the Minister issued on 3/11/92, is hereby quashed.,· And farthermore the Minister is directed to re-admit the appeal and determine it in accordance with the law. JUDGE. For the Applicant: Mbuya, For the Respondent: Kamba.