songea tobacco processing factory 1997 ltdsontop vs tanzania plantation and agricultural workers uniontpawu 2005 tzhc 111 5 may 2005

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM {CORAM: ORIYO.J.: SHANGWA. J: And MIHAYOr 1 } CIVIL APPEAL NO. 28 OF 2004 SONGEA TOBACCO PROCESSING FACTORY (1997) LTD (SONTOP).. APPELLANT VERSUS TANZANIA PLANTATION AND AGRICULTURAL WORKERS UNION (TPAWU)........................ RESPONDENTS JUDGMENT ORIYO. J: The appeal arose out of the Industrial Court of Tanzania Award issued on 19/9/03 in Voluntary Agreement No.4/03 between the parties. It was initiated by the appellant through the services of M/S Julius Chambers Advocates, learned Counsel. It is based on two grounds, namely:- (i) That the court erred in distinguishing retrenchment of TPAWU leaders and that of other employees. (ii) That the court erred in failing to distinguish the issue of reinstatement of workers from that of registration of the Negotiated Agreement. Upon those grounds the appellant prays that the appeal be allowed and the decision of the Industrial Court be set aside with costs. The respondent was represented by M/S Kariwa and Company Advocates, learned Counsel. At the outset we think that it is pertinent to make a clarification before we consider the merits of the appeal. As correctly pointed out by the respondent, what was before the Industrial Court for registration was a Voluntary Agreement between the parties and NOT a Negotiated Agreement as intimated by the appellant. Now, turning to the merits of the appeal, it was the appellant's contention that what was before the Industrial Court was the registration of a Voluntary Agreement. Further, it was stated that the Industrial Court had the power to refuse to register the agreement as it was done. The appellant argued that after refusal to register; the agreement ought to have been returned to parties. It was submitted that the Industrial Court erred in this respect when after refusal to register the agreement, it ordered reinstatement of union branch leaders which were extrinsic matters not before it; as there was no trade dispute or a trade inquiry before the court. The appellant prayed that the order of reinstatement be declared null and void as the Industrial Court had no jurisdiction to make it. The appellant referred this court to the decision in HOTEL AFRICANA VS JUWATA [1988] TLR 105 in support of its prayer. The respondent conceded that the Industrial Court issued the orders for reinstatement of the Union branch leadership when there was no trade dispute before it. Secondly, the respondent also conceded that the law provides for certain, specific legal steps and procedures to effect or order reinstatement. However the respondent differed with the appellant on the consequences of such orders. It was submitted by the respondent that the Industrial Court was justified to order the reinstatement of the union branch leadership for the purposes of the registration of the agreement. Having supported the Industrial Court's decision as it did, the respondent, on another note, raised a preliminary point of objection that this court has no jurisdiction over appeals originating from decisions of the Industrial Court. We must admit that the objection was irregularly raised in the written submissions. However, since it is a legal point, questioning our jurisdiction over the appeal, we must first decide whether we have jurisdiction or not. Apparently the appellant had the opportunity to argue the objection in submissions in rejoinder but did not do so for unknown reasons. So the appellant did not advance any arguments on the issue of the jurisdiction of this court over the appeal. It was correctly argued by the respondent that an appeal is a creature of statute and there must be a law conferring jurisdiction on this court over appeals from the Industrial Court. Authorities on the legal position are Many; See HARNAM SINGH BHOGAL vs JADVA KARSANANI (1953) EACA 17; and THE ATTORNEY GENERAL vs SHAH (NO 4) [1971] EA 50. This court has also on several occasions stated that it has no jurisdiction over appeals from the Industrial Court, pursuant to the provisions of SECTION 27 (IC), the Industrial Court of Tanzania Act, 1967, as amended by Act 3/90 which states:- "Subject to the provisions o f this section, every award and decision o f the court shall be final and not liable to be challenged, reviewed, questioned or called in question in any court save on the grounds of lack o f jurisdiction in which case the matter shall be heard and determined by a full bench o f the High Court." Such decisions of this Court include:- 1. LEKULE vs JV INDUSTRIES LTD, Civil Appeal No.3/98, Dar es Salaam Registry (unreported). 2. ATHUMANI KUNGUBAYA AND OTHERS vs PSRC and TTCL, civil Appeal No.9/01 DSM Registry (unreported). 3. Ludovick Mbona vs NBC [1997] TLR 26. However, that was the legal position until Act No. 11 of 2003, WRITTEN LAWS MISCELLANEOUS AMENDMENTS ACT, was enacted at the end of 2003. SECTION 27(IC) above was deleted and substituted by Act 11/03 to read as hereunder:- "Subject to the provisions o f this section, every award and decision o f the Industrial Court shall be called in question on any grounds in which case the matter shall be heard and determined by a full bench o f the High Court, "(emphasis provided). On the basis of the amendment, we have jurisdiction over appeals originating from the Industrial Court. We now proceed to determine the grounds of appeal. The first limb of the Appellant's complaint against the Award was the distinction made by the Industrial Court between retrenched TPAWU leaders and other employees of the appellant. This distinction was made in accordance with SECTION 8(b) of the Security of Employment Act, Cap 574 which provides:- 7 "8. An employer in whose business a Committee is required to be, or is, established in accordance with this A c t- (a) N/A (b) Shall not discriminate against a member o f the Committee and, in particular and without prejudice to the generality o f the foregoing, shall not terminate the employment o f a member of the Committee (except for breach o f the Disciplinary Code) without the prior approval o f a labour officer, "(underlining supplied). It is crystal clear from the above provision that the District Labour Officer's prior approval was required before the retrenchment of TPAWU leadership. In view of the above provision, we think that the Industrial Court was correct in upholding the distinction and we cannot fault it for that. The second limb of the appellant's complaint which is indeed the crux of the appeal is whether the Industrial Court was correct in ordering the reinstatement or the payment of statutory compensation in the course of registering the Voluntary Agreement. As we shall show later, we are of the settled mind that the Industrial Court acted incorrectly in this respect. On the refusal to register the voluntary agreement, the Industrial Court was entitled under the circumstances, where the branch leadership had ceased to exist; pursuant to the provisions of SECTION 39(7)(C) of the Industrial Court Act, 1967, as amended. We now turn to the legality or otherwise of the orders issued subsequent to the refusal to register the agreement. The law on the subject of retrenchment and reinstatement is very clear. Any member of a trade union aggrieved by retrenchment exercise may initiate a trade dispute or inquiry by reporting the dispute to the union branch at the place of work within seven (7) days. The procedure for settlement of disputes upon reference to the Industrial Court is provided under part II, of the Industrial Court of Tanzania Act as amended and the Court may make an award, report or decision, (Section 22(e)). Having set out the legal position above; and with due respect; we are of the opinion that the Industrial Court erred in this respect. In the absence of a trade dispute or inquiry before it; the court had no jurisdiction to issue the orders of reinstatement or statutory compensation under SECTION 40A(5), Security of Employment Act; as it did. Accordingly the decision and/or orders to reinstate the union branch leaders or to pay them under Section 40A(5) is quashed and set aside. The appeal on this ground is allowed. In view of the circumstances of the case, each party to bear own costs. Dated at Dar es Salaam this.............. day o f ................. 2005. Oriyo, J ................................. Shangwa, J ........................... Mihayo, J ..............................