tanzania electric supply co ltd vs shaffi nuru 2019 tzca 84 8 march 2019

IN THE COURT:P.,FAPPEALOF TANZANIA A-I, ' ~;l ES SAlAAfJl .. (CORAM: MUGASHA, J.A., NDlKA, J., And KWARIKO, J.A.) CIVIL APPEAL NO.2 [il= 2018 TANZANIA ELECTRIC SUPPLY COMPANY LTD....................•..•• APPELLANT VERSUS SHAFF~ALI NURU (Legal Representative of the late HASSAN A. JAMBIA ••••••••••.•.••••......•.....•.................. ~ RES,PONDENT "'.~ .. ···.·;·''"·U~~.~F-~.tfr(jm- . the .decislon of the High .C{,I.!rt_nf....."" .._"'.., .... _ " . Tanzania at Dar es Salaam) (Mihayo. J.) dated the 6th day of October, 2005 in Civil Appeal No.6 of 2004 JUDGMENT OF THE COURT 20th February & 12th March, 2019 MUGASHA, J.A.: The late Hassan Jambia was employed as an Internal Auditor by the appellant in 1984. He had risen up to the position of the Principal Supplies Officer when his employment was terminated on 3/8/1995 due to among others, alleged misappropriation of the employer's property. Discontented with the termination, he filed Trade Dispute NO.7 of 1995 against the appellant before the defunct Industrial Court of Tanzania. In its decision handed down on 10/10/2002, Mrs. C.E,R. 1 William (Deputy Chairperson) sitting with two assessors (Me r·1Qezi from .~.. . Association of Tanzania Employers (ATE) and Mr. Pazi from Conservation,. Hotel and .Allied .';,iVorkers Union (CHODAWU) decided in \' favour of the late Hassan Jambia. However, having considered that, Mr . . Hassan Jarnbla was not in the employment for seven years after being terrnlnated, it was ordered that he be paid all termlnal benefits from the "<-,..,,,,~.. ..,..,;..". ;"~-'--::'~:''''-:'-f'rl''''"-,I",,,,~, '"'.',;.'1' f;T ... ".__••.• ~'~ -4. c""_._~~;o·~,.,!..:,··;.c,·,..,....· ...••. '''.::...?'.• ''''' .. ~ •.. , .,'e', ': __'. date of termination instead of being reinstated into the employment. Unhappy with that decision, on 7/1/2004 Mr. Hassan Jambia lodged an appeal before the High Court of Tanzania at Dar-es-salaam Registry. On 6/10/2005, the learned High Court Judge having set aside the award given by the Industrial Court ordered that, tv1r. Hassan Jambia be reinstated into the employment and paid arrears of the salary and increments that he would have got in the post held. Aggrieved, the appellant has lodged an appeal to the Court to challenge the decision of the High Court. In the Memorandum of Appeal the appellant has raised the following grounds of appeal: 1. THA T, the Learned appellate Judge grossly misdirected himself in assuming jurisdiction to 2 "'.' 'eniertain the appeal contrary (stc) --tbe then c . Industrial Court of Tanzania Act [Cap. '60 R.E-< 2002J. In the alternative to the first ground of eppee). 2. THA 7; having regard to the circumstances of the -.' .• ".,('~ ~, (I"':''''''--''''-'';,.'~ > ;~>.~ .. " "<. ',;,"." case, and the evidence on record, the Learned Appel/ate Judge grossly misdirected himself in fact and in law in setting eside the award of payment of 36 months salary to the late Hassan Jambia instead of reinstatement as ordered by the Industrial Court _.&' I_~ t-; UI 1011L011J0. 3. THA 7; the Learned Appel/ate Judge grossly misdirected in himself in fact and in law in directing that the late Hassan Jsmbte. in the event the appel/ant failed to reinstate him, should be paid his benefits under the Security of Employment Ace when his employment was not governed by the said Act. 3 •... , ~~ .., .,. .' /" .•... 4. THA T, the Learned Apoettste Judge grossly misdirected himself in fact and in law in ordering that payments to Hassan Jambia should take. into consideration increments that would accrue if he was in the employment of the appellant. H Following the ·'Ut:!'cili,'\.K r-lr. Hassan Jambia, his admilli:::>LloLvi' 0f· estate Mr. Shafii Ali Nuru took over the matter as the legal representative of the deceased who is referred to as the respondent in this appeal. Parties filed written submissions in support and against the appeal ~::::: ,~A(1";~"',..I d ..J ••....•..• UII eu h" "I,.... 1 ()C uy I•• UIC: .LVV ••..•4= VI t-hr. 1.11e; D"loC' I,"UIe;.;). Tho I II •••.. l"ocnorti\lO 1 •••.. ..;If-J •••..•....••. , v •.•.. cllhmiccinnc ....,UIJ,,"...., ,,,,oro . .• 'U"' ...••••.... ,..._ adopted by the parties at the hearing of the appeal. At the hearing of the appeal, the appellant was represented by Messrs. Richard Rweyongeza, Majura Magafu, Joseph Sang'undi and Florence Ernest, learned counsel whereas the respondent appeared in person. 4 The appeal was confronted with preliminary objections ralsed tr~j: ,. the respondent on the following points: ,. "(1). Thet; the appeal is time barred (2). That, there is no valid notice of intention of appeal. " t <,',, __ , -."_'-. '. ," ":." ~~' ~ _", ~~ , As is the usual practice we had to hear first the preliminary points of objections before going to the merits of the appeal.- See BANK OF TANZANIA VS OEVRAN P. VALAMBHIA, Civil Application No. 15 of 2002 (unreported). In addressing the Court on the first preliminary objection, the respondent relied on 89 (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules). He contended that, since the appellant was aware that the proceedings were ready on 6/12/2016, she did not act promptly in filing the present appeal on 5/1/2018. The respondent was thus of the view that, the appeal is time barred. When probed by the Court that, what is before us is an appeal and not an application to have the notice of appeal struck out, he persistently maintained that, the appeal is not properly before the Court. 5 In argu!n9_~:'the second limb of the preliminary. ol-?jection, the respondent's initial line of contention was that he was not served with the appellant's letter seeking to be supplied with the proceedings of toe High Court for appeal purposes. However, he shifted the goal posts and contended that, the appellant did not serve him with the Certificate of '~"'i delay.. He viewed this as an omission which rendered the appeal not •.• ~" .. ,,'~,f •••~;,'r.."~"''".;.~•._~.'''~:!..~,.;,. : > .,"~',~ ~ "",-, . .<>'~·,-"c·",,-.'-;.:'t -"':; "'" competent and urged us to strike it out. On the other hand, Mr. Majura Magafu resisted the preliminary objections arguing the same to be misconceived. He pointed out that, since the respondent did not file an application under Rule 89 (2) of the Rules, he cannot be heard at this stage to complain that the appellant never embarked on the essential steps to lodge an appeal. Secondly, he submitted that, following the decision of the High Court handed down on 6/10/2005, the appellant lodged the notice of appeal and in the letter dated 11/10/2005 wrote to the Registrar seeking to be supplied with the proceedings of the High Court for appeal purposes. He added that, those documents were served on Mr. Ukwonga advocate on 24/10/2005 as reflected 'at pages 326 and 327 of the record of appeal. Headded 6 :"~.':~ .. ~'~~ that/',:t~e service was done before the death.of-Mr. Hassan Jambia. Mr. Magafu thus, asked the Court to overrule the preliminary objections. ' ~- ~ Regarding the first point of the prellminary point of 'objection, ,,::IS earlier stated, the respondent faults the appellant for not having .taken . essential steps to lodge an appeal. He relied on rule 89 (2) of the Ruies which basically provides a::, (uiiovv:>. . ''Subject to the provisions of sub-rule (L), a respondent or other person on whom a notice of appeal has been served may at any timer either before or after the institution of the eppesl. appea~ as the case may bel' on the ground that no appeal lies or that some essential step in the proceedings has not been taken within the prescribed time. rr We found the first preliminary point of objection to be rather strange because before us is an appeal. This _Is not an. application to have the notice of appeal struck on account of the appellant's failure to 7 take essential steps to institute .an appeal which ought to have been ,i lcdqed in an application under the cited Rule instead of challenging the .;: , competenc:yof the appeal before us by way of the preliminary objection. We have <3.150 gathered that, the respondent has-abandoned the second preliminary point of objection. Instead, he concentrated on addressing us 'UfTSOi I te'liLher thlnqs which were not irrhis""1 juliet:' 01 tile ' ' preliminary objection possibly, because he is a layman. However, we found that the appellant lodged the notice of appeal which was served in time to the respondent. Moreover, from the evidence on record, the appellant complied with the requirements under rule 90 (1} and (2) of the Rules by serving the respondent's advocate with a copy of the letter seeking to be supplied with requisite documents from the High Court for appeal purposes. In the circumstances, the appellant is entitled to the exception in sub-rule 90 (1) of the Rules. See - JULIUS SINGOYAN KUlEY VS LAZARO KARISIANI, Civil Application No.1 of 2013 (unreported). We also found the respondent's complaint on the non-supply of the Certificate of delay to him to be rather strange as the law does not 8 require its service on the respondent be it by the court or the aopellant, We say so because according to the law, the certificate of delay is r availed by the Registrar to the appellant who has applied tobe supplied " With. the proceedings of the High Court for appeal purposes. The ..• requisite Certificate is valid as it exduces-tne. , . period of waiting to be ." supplied with the proceedings to file an appeal. As earlier stated, we _. "~-'-"''''''''~'~--';''''''~'.'' . '' ",; •..•.. , •.•. ~, - .~~...,>.-., •.... '·t.'ol.·.._.<!.c, .••..... -_ .•. ': _, '. 'j ~.~ .• believe that, the respondent raised this complaint due to his unfamiliarity with the procedure as he is a layman. Therefore, the present appeal is properly before the Court. 'file thus dismiss the preliminary points of objection .on account of being misconceived. We now proceed to determine the merits of the appeal. In addressing the first ground of appeal, Mr. Sang'udi initially contended that, the learned High Court Judge lacked jurisdiction to determine an appeal from the defunct Industrial Court. He argued this to have contravened the provisions of section 28(4) of the repealed Industrial Court Act which required such appeal to be determined by the full bench of the High Court. 9 In r~.pIy-/;tMe respondent resisted the appeal contending that, the learned High Court Judge had jurisdiction to preside over and determine . the appeal against the decision of the defunct. Industrial Court, He added that, the restriction to appeal on the sole ground of jurisdiction ",-.> ~"_ - was held to be unconstitutional as it deprived a 'person of his basic rlqht . of appeal or another legal remedy. To support this proposition he cited .•. ;,.."I'<_.". _~.,<-,.,~~._."I"~_J.~ ..I',,",. "":1', ~ . .!: ~.-.;~.,"ii'"; .. ,~ •.. ". .::i to us the case of OTTU (ON BEHALF OF P.P MAGASHA VS ATTORNEY GENERAL AND ANOTHER [1997] T.L.R 30. As such, he concluded that, the learned High Judge was justified to preside over and determine the appeal. In rejoinder, Mr. Rweyongezabrought to the attention of the Court that, the law was amended in 2003 widening the scope on which a person aggrieved by the decision of the defunct Industrial Court could appeal on any ground before a full bench of the High Court. He thus, concluded that, the learned High Court misdirected himself in assuming jurisdiction not vested in him under the law and urged us to allow the appeal. 10 ". '::', -After a careful consideration of arqurnents of the parties the issue for our consideration is whether the, learned High' Court Judge had jurisdiction to preside over and determine an appeal aqalnst the decision of the defunct Industrial Court of Tanzania. At the outset, we wish to point out that, jurisdiction of courts. is a creature of statute and not otherwise. In the case ISIHAKA MZEE MWINCHANDE VS HADIJA ISIHAKA, Civil Appeal No. 99 of 2010 (unreported) the Court among other things said: ... the term "jurisdiction" connotes the limits which are imposed by statute upon the power of a validly constituted court to hear and determine issues between parties seeking to avail themselves of its process; .. to the subject matter of the issue;... But, unless there are express provisions limiting or ousting the jurisdiction of courts, there is always a presumption in favour of jurisdiction. " 11 We understand that, the 'award and the decision of the defunct Industrial Court was by law final and not liable to be challenged, reviewed, questioned or called in question in any court except on the grounds of lack of jurisdiction in which case the matter was to be heard and determined by a full bench of the High Court. However, the provision limiting the qround on jurisdiction upon whlchthe decision of defunct Industrial Court could be challenged before the High Court was considered in the case of OTTU (ON BEHALF OF P.P MAGASHA VS ATTORNEY GENERAL AND ANOTHER (supra). The High Court declared section 27 (lC) to be unconstitutional as it purported to whittle down the right under article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977. Subsequently, in the year 2003 the repealed Industrial Court Act was amended vide Written Laws (Miscellaneous Amendments) Act No. 11 of 2003 (the Amendment Act) whereby the sub-section (lC) of section 27 was deleted and substituted with the following: ''Subject to the provision of this section, every award and decision of the Court shall be called in . 12 question .or: any grounds in which case the matter shall be heard and determined by a full bench of the High Court". The Amendment Act came into force on 23/5/2003. As rightly pointed ~~t by'Mr. Rweyongeza, the Amendment; Act widened the scope of Chdiierjyillg Ute decision of the defunct Industriai \-=u~(t on dny ground before the High Court. Therefore, since Civil Appeal No. 6 of 2004 was filed on 7/1/2004 before the High Court this was after the coming into force of the Amendment Act, vvhich allowed an appeal against the declslon of the Industrial Court to lie on any ground and be heard by a full bench of the High Court. Thus, rvlr. Hassan Jambia's appeal could have enlisted any ground of grievance including that touching on the jurisdiction of the defunct Industrial Court. In view of the aforesaid, the remaining question to be answered is whether the learned High Court Judge was vested with jurisdiction to preside over and determine Civil Appeal NO.6 of 20047 With respect, the answer is in the negative because the appeal ought to have been determined by a full bench of the High Court. As such, we agree with 13 the appellant that, the learned High Court Judge 'ri5sumed jurisdiction not vested in him by law and that is why. we earlier stated that, jurisdiction is vested by the law and not otherwise. We thus declare that the decision in Civil Appeal NO.6 of 2004 is a nullity. " ". t For the above reasons, we allow the appeal on the first ground High Court are quashed. We direct that, the case file be remitted to the High Court for the determination of appeal No. 6 of 2004 by the full bench of the High Court. Since this is a labour related matter, we make no order as to costs. DATED at DAR ES SALAAM this 8th day of March, 2019. S.E.A. MUGASHA JUSTICE OF APPEAL G.A.M. NDlKA JUSTICE OF APPEAL M.A. KWARIKO JUSTICE OF APPEAL I certify that this is a true copy of the original ~- B. A. MPEPO DEPUTY REGISTRAR COURT OF APPEAL 14