CIV

IN THE COURT OF APPEAL OF TANZANIA AT MTWARA (CORAM: KEREFU. 3.A.. RUMANYIKA. 3.A. And MGEYEKWA. J J U CIVIL APPEAL NO. 87 OF 2023 TANZANIA POSTS CORPORATION................................................APPELLANT VERSUS EVARISTO MIHO...................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania (Labour Division), at Mtwara) ( Dvansobera. J.^ dated the 11th day of May, 2021 in Labour Revision No. 02 of 2020 JUDGMENT OF THE COURT 3 d & 11thJune, 2024. KEREFU. J.A.: Tanzania Posts Corporation, the appellant herein, appeals against the decision of the High Court of Tanzania, Labour Division (Dyansobera, J.) dated 11th May, 2021 in Labour Revision No. 02 of 2020 challenging the award issued by the Commission for Mediation and Arbitration at Mtwara (the CMA) on 29th May, 2018 in favour of Evaristo Miho, the respondent in Labour Dispute No. CMA/MTW/LD/108/2017 (the labour dispute). In order to appreciate the context in which the said labour dispute arose and later this appeal, we find it apposite to briefly provide the material facts of the matter as obtained from the record of appeal. That, on 4th December, 2002, the respondent was employed by the appellant at the position of Senior Marketing Officer and was given PF. No. 23845. He was later promoted and elevated to various positions until 3rd July, 2017, when his employment was terminated for misconduct, gross negligence and dishonesty. At the time of the said termination, he was the appellant's Regional Manager of Mtwara Region. Aggrieved by the termination of his employment, the respondent, unsuccessfully, referred his grievances to the Postmaster General. Still unsatisfied, and convinced that there were no valid reasons for the termination of his employment, the respondent approached the CMA where he contested unfair termination of his employment based on unfair reasons and procedures and prayed for payment of terminal benefits and compensation. As the process of mediation failed, the dispute was placed before the arbitrator who heard evidence from both parties and, in the end, found that the termination of the respondent was fair as the appellant had valid reasons to do so and all procedures were complied with. As such, the labour dispute was, consequently, dismissed. Still unsatisfied, the respondent lodged a Labour Revision No. 12 of, 2018 in the High Court challenging the award issued by the CMA. Subsequently, the appellant lodged a notice of preliminary objection challenging the competence of the said application. Upon hearing the parties, the learned High Court Judge upheld the preliminary objection and struck out the Labour Revision No. 12 of 2018 on 19th December, 2019. However, the respondent was granted fourteen (14) days to file another application from the date of receipt of the respective ruling. Thus, on 28th February, 2020, the respondent lodged another application for revision before the High Court vide Labour Revision No. 02 of 2020 against the CMA's Award. The said application was also confronted with a preliminary objection raised by the appellant that the respondent's application was time barred as it was lodged after lapse of seventy (70) days from the date of the ruling and beyond the fourteen (14) days granted by the High Court. Upon hearing the parties on the said objection, the learned High Court Judge overruled it and ordered for the application to be heard on merit. Having heard the parties, the learned High Court Judge decided the dispute in favour of the respondent. On that basis, the learned High Court Judge quashed and set aside the CMA's award and ordered for the reinstatement of the respondent and payment of his remuneration in accordance with the provisions of section 40 and 44 (1) and (2) of the Employment and Labour Relations Act No. 6 of 2004 (the ELRA). Undeterred, the appellant preferred the present appeal. In the memorandum of appeal, he raised three grounds of complaint which can be conveniently paraphrased as follows; one, that the CMA had no jurisdiction to determine the labour dispute involving a public servant who has his own specific forum even before the enactment of the Written Laws (Miscellaneous Amendments) Act No. 13 of 2016 which introduced section 32A of the Public Service Act, Cap. 298; two, the learned High Court Judge erred in law by entertaining revision application which was filed out of time; and three, the learned High Court Judge erred in law by relying on documents which were not tendered by either party to the dispute and admitted by the CMA to justify the respondent's claims for unfair termination. When the appeal was placed before us for hearing, the appellant was represented by Mses. Grace Lupondo and Frida Mollel, both learned State Attorneys. On the other side, the respondent entered appearance in person. It is noteworthy that, pursuant to Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009, the learned counsel for the appellant had earlier on lodged written submission in Court on 13th February, 2023 in support of the appeal. On the other side, the respondent did not file any reply submission, as he opted to address us in terms of Rule 106 (10) (b) of the Rules. At the outset, Ms. Lupondo prayed to abandon the third ground of appeal and intimated that she would only argue the first and second grounds. She thereafter adopted the written submission they earlier on lodged to form part of her oral submission. In her submission in support of the first ground, Ms. Lupondo contended that the CMA had no jurisdiction to hear and determine the complaints by the respondent, as he was invariably a public servant. Amplifying further on her argument, Ms. Lupondo emphasized that the question of jurisdiction for any court is fundamental and it goes to the very root of the authority and powers of the court to adjudicate upon cases of different nature. That, the issue of jurisdiction is normally determined at an earliest stage of the proceedings for the court to ascertain if it had the requisite jurisdiction to entertain the matter brought before it. She stated further that, if the same was not determined at that level, it can be raised at any stage including at an appellate level. To support her proposition, she cited the cases of Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda & 20 Others [1995] T.L.R. 155 and Sospeter Kahindi v. Mbeshi Mashini, Civil Appeal No. 56 of 2017 [2018] TZCA 223: [10 October 2018: TanzLII]. The learned counsel argued further that, in the instant appeal, there is no dispute that the respondent, a public servant, lodged his labour dispute at the CMA on 26th July, 2017, whereby, at that time section 25 of the Public Servant Act, Cap 298 (the Public Service Act) was already amended by section 26 of the Written Laws (Miscellaneous Amendment) Act, No. 3 of 2016 by adding section 32A. That, although section 2 (1) of the ELRA recognizes public servants and its employers, the said section should be read together with section 32A of the Public Service Act which requires a public servant to exhaust all local remedies available in disciplinary mechanisms system within the organization first, before approaching other institutions. She stated that, having been unsuccessful within his institution, the respondent was required to appeal to the Public Service Commission and if further aggrieved, to appeal to the President of the United Republic of Tanzania whose decision is final and can only be challenged through judicial review in the High Court of Tanzania as it was decided in Sanai Merumbe & Another v. Muhure Chacha [1990] T.L.R. 54. It was her argument that, since the respondent lodged his labour dispute at the CMA before exhausting the above local remedies, the CMA had no jurisdiction to hear and determine the appellant's labour dispute. To support her argument, she referred us to our previous decision in Tanzania Posts Corporation v. Dominic A. Kalangi, Civil Appeal No. 12 of 2022 [2022] TZCA 154: [28 March 2022: TanzLII], where upon considering the applicability of section 32A of the Public Service Act, the Court declared that the CMA had no jurisdiction to entertain a labour dispute involving a public servant and thus quashed the proceedings of the CMA and set aside its subsequent orders. Based on her submission, Ms. Lupondo urged us to quash the decision of the High Court and its subsequent orders together with the CMA's award issued on 29th May, 2018. In his brief response, the respondent submitted that, following the termination of his employment contract, he appealed to the Postmaster General where he was advised to refer his grievances to the CMA, where a different law (the ELRA) was applied and both parties fully participated to the end without raising any issue related with the CMA's jurisdiction. He thus blamed Ms. Lupondo to have raised the said issue at this level as he contended that they were the same people who advised him to go to the CMA. He thus, strongly, challenged Ms. Lupondo's submission, which, he said, it is prejudicial to his rights. He finally urged us to find that the first ground of appeal is devoid of merit. In her brief rejoinder, Ms. Lupondo reiterated her previous submission and disputed the respondent's submission by emphasizing that the issue of jurisdiction can be raised at any stage even at an appellate level. Having heard the submissions by the parties, we think it is important right away to start by addressing the concern raised by the appellant in the first ground on whether the CMA had jurisdiction to entertain the labour dispute subject of the current appeal. We are however, mindful of the fact that, in his submission, the respondent, apart from conceding that he was a public servant, he blamed Ms. Lupondo to have raised the issue of CMA's jurisdiction at this level, as he contended that, the CMA had full powers to entertain the labour dispute 8 because it applied the ELRA which is different from the Public Service Act cited by Ms. Lupondo. He also argued that both parties fully participated to the end without raising any concern related to the CMA's jurisdiction. With due respect, we are unable to agree with the respondent on this point. It is well settled that points of law, especially on jurisdiction and time limitation, may be raised at any time. This position has been amply pronounced in various cases including Michael Leseni Kweka v. John Eliafe, Civil Appeal No. 51 of 1997 [2022] TZCA 154: [28 March 2022: TanzLII] and Tanzania Revenue Authority v. Tango Transport Company Limited, Civil Appeal IMo. 84 of 2009 [2016] TZCA 84: [26 October 2016: TanzLII]. Specifically, in the latter case, the Court emphasized that: "... a question o f jurisdiction can be belatedly raised and canvassed even on appeal by the parties or the court suo motu, as it goes to the root o f the trial." Being guided by the above settled position, we agree with Ms. Lupondo that the Court may proceed to determine a question of jurisdiction even at an appeal stage. We wish to emphasize that, the jurisdiction of the Court is provided for by statutes but not by practice or wishes of the parties. The fact that both parties fully participated at the CMA's proceedings to the end without raising that concern, that alone, does not confer jurisdiction to the CMA as suggested by the respondent. We shall therefore proceed to determine the issue of CMA's jurisdiction raised by the appellant in the first ground. It is on record that, the labour dispute between the appellant and the respondent started early, in 2017 and culminated on 3rd July, 2017 when the respondent's employment was terminated. Aggrieved, the respondent, unsuccessfully, referred his grievances to the Postmaster General and then, later, he lodged his labour dispute at the CMA on 26th July, 2017, when section 25 of the Public Servant Act had already been amended by section 26 of the Written Laws (Miscellaneous Amendment) Act, No. 3 of 2016 by adding section 32A which came into force on 18th November, 2016. Section 32A of the Public Service Act provides that: "A public servant shall, prior to seeking remedies provided for in the labour laws, exhaust all remedies as provided under the Act." The above section, as correctly argued by Ms. Lupondo, requires a public servant to exhaust all local remedies available in disciplinary mechanisms system within the organization first, before approaching other institutions. This Court in several occasions, has pronounced itself on the applicability of the above provisions on the disciplinary processes to be 10 undertaken by employees in the public service like the respondent herein. See for instance, the cases of Tanzania Posts Corporation v. Jeremiah Mwandi, Civil Appeal No. 474 of 2020 [2021] TZCA 311: [16 July 2021: TanzLII] and Tanzania Posts Corporation v. Dominic A. Kalangi (supra). Specifically, in the latter case the Court held that: "...the import o f the above-quoted provisions together with a more eiaborate exposition attached to it, is that the employees o f the Tanzania Posts Corporation are public servants. While section 31(1) o f the Public Service Act, provides for the servants in the executive Agencies and Government institutions, such as the Tanzania Postal Corporation, to be governed by the provisions o f the laws establishing the respective executive agency or institution, subsection (2) makes it mandatory thus: "Without prejudice to sub-subsection (1), public servants referred to under this section shall also be governed by the provisions o f this Act. In the context o f the instant case, the CMA is further kept at bay from entertaining labour disputes involving public servants by the provisions o f section 32A " Furthermore, in both cases above, the Court went on to hold that, the respondents who were employees of the Tanzania Posts Corporation were public servants being employed in a public office. It was also ii observed that upon their termination and exhausting of internal remedies in the appellant's corporation, it is then that the provisions of section 25 (I) (a) and (b) of the Public Service Act would have come into play since as stipulated, all disciplinary matters or disputes involving public servants are exclusively with the domain of the Public Service Commission whose decision is appealable to the President of the United Republic of Tanzania. In the instant appeal, we are constrained to apply the above findings and observation, as the respondent herein, was also an employee of the Tanzania Posts Corporation. In addition, since it is obvious that, the respondent did not exhaust.all available remedies including referring his. dispute to the Public Service Commission and ultimately to the President. And if still dissatisfied, to proceed to seek judicial review in the High Court of Tanzania as it was decided in Sanai Merumbe & Another v. Muhure Chacha [1990] T.L.R. 54, we find his argument that the CMA had jurisdiction to entertain the matter, unfounded. For the foregoing, we agree with the submission advanced by Ms. Lupondo that the CMA had no jurisdiction to entertain the dispute between the parties. We therefore find the first ground to have merit. Since the 12 determination of this ground suffices to dispose of the appeal, we see no reason to consider the other remaining ground of appeal. In the end, we are of the firm view that the appeal is merited and we hereby allow it. Consequently, we nullify the entire proceedings of the CMA and quash the resultant award. We further nullify the proceedings before the High Court, quash the judgment and set aside the subsequent orders thereto as they emanated from nullity proceedings. Since this is a labour related matter, we make no order as to costs. DATED at MTWARA this 10th day of June, 2024. R. J. KEREFU JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 11th day of June, 2024 in the presence of Mr. Masunga Kamihanda, learned Senior State Attorney for the Appellant and ths?<#$£g3CB?d§pt in person unrepresented is hereby certified as a true