tanzania electric supply limited vs michael eliwangu mnzava and 12 others 2022 tzhc 14849 9 november 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT MOSHI LABOUR REVISION NO. 2 OF 2020 (Original Labour Dispute No. MOS/CMA/M/240/20^. TANZANIA ELECTRIC SUPPLY LIMITED.................. APPLICANT VERSUS MICHAEL ELIWANGU MNZAVA & 12 OTHERS RESPONDENT JUDGMENT 1/11/2022 & 9/11/2022 L.M. MLACHA, J The applicant, Tanzania Electric Supply Company Ltd (TANESCO) filed an application for revision against the decision of the Commission for Mediation and Arbitration for Kilimanjaro at Moshi (the CMA) seeking revision of the decision of the CMA made in MOS/CMA/M/240/2017 dated 23/3/2018. The application is accompanied by the affidavit of Karonda Saidi Kibamba, a principal officer of the applicant stating the grounds upon which the revision is based. The revision is seeking for the following orders: 1. That, this application for revision has been filed to this court out of time after being granted leave to file out of time on 30^ July 2020 by His Lordship Mwenempazi J vide application for revision No. 6 of 2018 2. That, this Honourable court be pleased to Revise the CMA ruling for setting aside Exparte award vide Dispute No. CMA/ARS/ARB/150/2017 dated 23^^ March, 2018. Page 1 of 6 3. That, consequently after revision, this Honourable court Issue an order for setting aside and quashing the Order of the learned Arbitrator G.P. Migire and set new order appropriate thereto 4. Any other relief the court may deem fit and just to grant. The Respondents, Michael Eliwangu Mnzava, Musa Hassan, Timoth Issack Msuya, Omari Shafii, Elia Gendo, Elisha Godson, Mbonea Edward Msuya, KIdia Mohamed, Abdala Athumani, Hussein Mkumbwa, NaimaniMghamba, Augustino Mtaka and Didas E. Mchome are resting the revision. They have filed a counter affidavit in opposition. After the disposal of preliminary objections which resulted into a notice of appeal of the Court of Appeal which was later withdrawn, the case was placed before me for hearing under the clean up sessions for backlog cases. After perusal of the pleadings I encountered doubts on the jurisdiction of the court. I asked the parties to address the court on the jurisdiction of court. Mr. Yohana Marco State Attorney who appeared for the applicant submitted that the court does not have jurisdiction to hear the revision in view of Section 32A of the Public Service Act, Cap. 298 which was introduced by the Written Laws (Miscellaneous Amendment) Act No. 13 of 2016. Counsel submitted that section 32A was Interpreted in the case of Tanzania Postal Corporation v. Dominic A. Kalagi, Civil Appeal No. 12 of 2022 (CAT) to exclude public corporations from the jurisdiction of the CMA and this court. He went on to say that the case was filed at the CMA on 18/9/2017 while the amendments were made in 2016 well after Act No. 16 of 2016 had come into operation making the proceedings before the CMA and before this court illegal. Page 2 of 6 I had time to read the Public Service Act, Cap. 298 and Its 2016 amendments. I have read the Labour Institutions Act cap 300 R.E. 2019. I have also read the records of the CMA and documents filed before this court. The Labour Institutions Act provides a scheme of solving labour disputes which starts with the CMA. An aggrieved party may come to this court by way of revision. The decision of this court may be challenged before the Court of Appeal by way of appeal. See sections 14, 15, 19, 20, 51 and 52 of the Act. Sections 9, 10, 23, 24 and 25 of the Public Service Act has a scheme for public servants. It starts with the Permanent Secretary, Head of Independent Government Department, the Regional Administrative Secretary or Head of Local Government Authority through the Public Service commission to the President. A person aggrieved by the decision of the Permanent Secretary, Head of Independent Government Department, the Regional Administrative Secretary or Head of Local Government Authority may go to the Public Service Commission by way of appeal. A further appeal may go to the President. This includes all public service employees except judicial officers and members of the police and prison services who have their separate schemes. See section 3 of the Public Service Act. Members of the Tanzania Peoples' Defence Forces have also a separate scheme. Prior to the 2016 amendments of the Public Service Act, employees of public parastatals were treated as normal employees and went to the CMA as a starting point for remedy. But the 2016 amendments to the Public Service Act introduced a new section 32A which require them to exhaust the remedies available under the Public Service Act before going to the CMA. That is to say, they have to start with an appeal to the Public Service Commission and a further appeal to the President before going to the CMA. Failure to comply with the requirements of section 32A render proceedings and the decision illegal. Page 3 of 6 r Speaking employees of Tanzania Postal Corporation in the case of Tanzania Postal Corporation (supra) the Court of Appeal had this to say at page 7; n ".. having been established by an Act ofparliament and being wholly and substantially owned by the Government, the Tanzania Postal corporation is a Public Service institution whose principal duty is among others, to provide the public with a national and International Postal and other services (see section 8 of the said Act). This is in line with Section A.l (52) of the standing orders for public service (GN 493 of 2009) made under Section 35(5) of the Public Service Act...," The court went on reproduce section 35(5) of the public service Act which reads as under: H "For purposes of the public service Act, Public service means the system or organization entrusted with the responsibility of overseeing the provision or directly the genera! public with what they need from their government or any other institution on behalf of the government as permissible by Laws and include the service in civil service; the health service, the public institutions service and operational service" The Court of Appeal concluded thus: the import of the above quoted provisions together with a more elaborated exposition attached to it, is that the employees of the Tanzania Postal Corporation are public Servants" (Emphasis added) Page 4 of 6 The Court of Appeal concluded that the CMA had no jurisdiction to entertain the dispute which involved an employee of the Postal Corporation, and therefore a public servant, because he had not exhausted the remedies available under the Public Service Act. That is exactly what was supposed to be done in this case because the case was filed at the CMA after the 2016 amendments. Like the posts corporation, TANESCO Is a public Corporation and whose employees are public servants who are bound by section 32A of the Public Corporations Act. It is thus clear that the CMA entertained the dispute prematurely. It acted without jurisdiction making the proceedings and the decision of the CMA and this revision Illegal. Before coming to the end, this court being a court of records, for the information to the parties and to those who deal with policy matters, a word may be useful. Section 25(1) (b) of the Public Service Act provides that where a Permanent Secretary, Head of an Independent Department or Regional Administrative Secretary exercises disciplinary authority by reducing the rank of a public servant, reduces his salary or dismiss the public servant, that public servant may appeal to the Public Service Commission against the decision. Subsection (c) gives a right of appeal to the President against the decision of the Commission whose decision shall be final. Subsection (c) appears to contradict section 32A which provides a chance of going back the CMA to start the process which may take one up to the Court of Appeal. This in my view is a contradiction which needs the intervention of the legislature for the law cannot say that the decision of the President is final and say at the same time in the same statute that having exhausted the remedies under the Public Service Act one can go to the forum under the Labour Laws meaning going to the CMA. A matter which has been finally concluded by a competent authority cannot be subjected to by another authority. On the other hand. In my considered opinion. Page 5 of 6 subjecting the decision of the President to the jurisdiction of the CMA may not sound well in a good in system of administration. With those few remarks, the revision is found to be illegally before the court and struck out. It is ordered so. 1 it' ■ ; L.M. CHA / V> JUDGE 9/11/2022 \\ Court: Judgment delivered. Right explained. L.M. MIIKCHi JUDGE / ) I 9/11/2022 Page 6 of 6