tanzania ports corporation vs jeremiah mwandi 2023 tzca 17317 9 june 2023

IN THE COURT OF APPEAL OF TANZANIA AT KIGOMA (CORAM: MUGASHA. J.A., SEHEL, J.A and MWAMPASHI. J.A.) CIVIL APPEAL NO. 474 OF 2020 TANZANIA POSTS CORPORATION.................................................................APPELLANT VERSUS JEREMIAH MW ANDI..................................................................................... RESPONDENT (Appeal from the Ruling and down Order of the High Court of Tanzania at Kigoma Registry) (Matuma. 3.) dated the 13th day of May, 2020 in Labour Revision No. 06 of 2019 JUDGMENT OF THE COURT 3'd & 9thJune, 2023 MUGASHA. J.A.: Jeremiah Mwandi, the respondent, was employed by the appellant as a clerk up to 16/1/2019 when he was terminated by the appellant's Regional Manager on allegations of misconduct. His appeal to the appellant's Post Master General was dismissed. Still aggrieved, the respondent filed Labour Dispute No. CMA/KIG/DISP/99/2019 in the Commission for Mediation and Arbitration (the CMA) for Kigoma at Kigoma claiming compensation for being unfairly and un-procedurally terminated by the appellant. Apart from disputing the respondent's claims, the appellant lodged a notice of preliminary objection inviting the CMA to strike out the complaint because it had no jurisdiction to entertain it. The ground advanced in the notice was that: the complaint was prematurely lodged before the CMA because the respondent had not exhausted the available internal dispute settlement remedies prescribed under regulation F.4 of Tanzania Posts Corporation Staff Regulations 2014 (the Staff Regulations) and section 32A of the Public Service Act [Cap 298 R.E. 2002] as amended by the Written Laws (Miscellaneous Amendments) (No. 3) Act of 2016 (the Public Service Act). After hearing the parties, the CMA sustained the objections and struck out the respondent's labour dispute for the reason that it had no jurisdiction to preside over a labour matter which involves a public servant on one hand and a public body on the other in terms of section 32A of the Public Service Act, which provides that: "A public servant shall, p rio r to seeking rem edies provided fo r in the labour laws, exhaust a ll rem edies as provided under the A ct'. In the said decision, the CMA relied on a number of the decisions of the High Court including the BOARD OF TRUSTEES OF THE PUBLIC SERVICE PENSIONS FUND VS. JALIA MAYANJA AND GODFREY NGONYANI, Labour Revision No. 248 of 2017, Nyerere J. (as she then was) (unreported). Aggrieved by the decision of the CMA, the respondent filed Labour Revision No. 06 of 2020, before the High Court to have the ruling and order of 2 the CMA revised on ground that, the CMA had jurisdiction to hear and determine his grievance. Before the High Court, the substantive question for determination was whether the CMA had jurisdiction to hear and determine the respondent's complaint that had been struck out. Having considered the provisions of the Public Service Act and the appellant's Staff Regulations and other laws, the High Court agreed with the respondent that indeed the CMA had jurisdiction to hear and determine the labour dispute. Consequently, the High Court ordered that the record be remitted to the CMA for determination of the respondent's complaint on merits. The appellant was aggrieved with the decision of the High Court which overturned the findings of the CMA. It is against the said backdrop; the appellant has preferred the present appeal on the following grounds; 1. That the honourable Court erred in holding that the Public Service Act, Cap 298 RE 2002 as amended by A ct No. 03 o f 2016 does not cater fo r a ll public Servants including the respondent. 2. That, the honourable Court erred in law and fact by holding that the Commission fo r Mediation and Arbitration had jurisdiction to entertain employment com plaints fo r public servants before exhausting internal rem edies provided under the Public Service Act. 3. That the honourable Court m isdirected its e lf on the interpretation o f regulation A. 3 o f the Tanzania Posts Corporation S ta ff Regulations, 2014. 3 At the hearing Messrs. Lameck Merumba and Allan Shija, both learned Senior State Attorneys and Mr. Erigh Rumisha, learned State Attorney appeared for the appellant whereas the respondent had the services of Mr. Sadiki Aliki, learned counsel. The learned counsel for either side adopted written submissions filed earlier on containing arguments for and against the appeal. On taking the floor, Mr. Rumisha who argued the appeal on behalf of the appellant, challenged the decision of the High and implored on the Court to reverse it. He began the address commencing with the 3rd ground of appeal in which the High Court is faulted to have misdirected itself on the interpretation of Regulations F4 and A.3 of the Staff Regulations. On this, it was pointed out that, Regulation F4 of the Staff Regulations provides for a remedy of first appeal against termination of an employee from employment, in the event the initial appeal is not successful, a remedy of second appeal lies with the Board of Directors of the appellant which is one of the appellant's appellate bodies in terms of Rule A3 of the Staff Regulations. It was thus argued that, it was not proper for the respondent to invoke the jurisdiction of the Commission for Mediation and Arbitration (the CMA), without initially exhausting the available internal remedy of filing a second appeal to the Board of Directors. To support the proposition, he cited to us the case of PARIS A. A. JAFFER AND OTHERS VS. ABDALLAH JAFFER AND TWO OTHERS (1996) T.L.R. 116. 4 It was also submitted by Mr. Rumisha that, although the learned High Court Judge had agreed with the principle underlying the essence of exhausting available internal remedies, yet, he wrongly interpreted the proviso to Regulation F4 of the Staff Regulations having concluded that, the respondent was not obliged to lodge an appeal to the Board of Directors and as such, he had the liberty of lodging the employment dispute to the CMA. He argued that the construction of the proviso by the learned High Court Judge did not take into account the context of the Regulations whose purpose is to give effect the internal dispute resolving mechanism before invoking remedies available under other laws. He referred us to the case of DICKSON SAUL LUTEMBA VS. CRDB BANK, Civil Appeal No. 70 of 2008 (unreported). With this submission, he urged us to reverse the verdict of the High Court. As to the 1st and 2nd grounds of appeal which were argued together, the High Court is faulted to have decided that, the respondent was not a public officer as envisaged under the Public Service Act (CAP 298 R.E.2002) and thus, not bound by the requisite disciplinary procedures thereunder, which entitled him to invoke the jurisdiction of the CMA to lodge the employment dispute. Mr. Rumisha submitted that, the respondent was the employee of the Tanzania Posts Corporation which is a public office in terms of the provisions of sections 3 and 31 (1) (2) of the Public Service Act. In this regard, it was argued, the respondent was bound by the disciplinary procedures in the public service whereby, in terms of section 3A he ought to have exhausted internal 5 remedies available within the public service before invoking the jurisdiction of the CMA. To support the proposition, he cited to us the recent case of TANZANIA POSTS CORPORATION VS. DOMINIC KALANGI, Civil Appeal No. 12 of 2022 (unreported). That apart, it was submitted that, since the law improvises a special forum of resolving employment disputes involving employees in public offices, the jurisdiction of the CMA was prematurely invoked and as such, the respondent's case was correctly struck out. He thus urged us to reverse the decision of the High Court and reiterated the earlier prayer that the appeal be allowed. On the other hand, supporting the submission by Mr. Rumisha in respect of the first two grounds of appeal, Mr. Aliki made a concession and implored on us to allow those grounds. However, he opposed the 3rd ground of appeal arguing that the proviso under Regulation 4 did not inhibit the respondent to invoke the jurisdiction of the CMA for he had exhausted the available internal remedies following the dismissal of his appeal by the Post Master General. In a nutshell, Mr. Aliki agreed with the reasoning and verdict of the learned Judge of the High Court. Having considered the contending submissions and the record before us, we have conveniently, opted to initially resolve the first two grounds of appeal as to whether the CMA had jurisdiction to entertain the employment dispute before the respondent had exhausted remedies under the Public Service Act. We begin with the legal framework which define the public servants and the modality governing the related disciplinary procedures. Section 4 of the Interpretation of Laws Act [ CAP 1 R.E.2002] gives the following definition: "Public officer" or "public departm ent" extends to and includes every officer or departm ent invested with or perform ing duties o f a public nature, whether under the im m ediate control o f the President or not, and includes an officer or departm ent under the control o f a local authority, the Community, or a public corporation". In the light of the above, a public corporation such as the appellant is embraced as a public department whilst its employees are categorized as public officers. That said, we are aware that, in terms of section 3 of the Public Service Act, the appellant who is a public corporation solely owned by the Government, is as well embraced as apublic service office and its employees are public servants. Besides, according to section 2 of the Employment and Labour Relations Act [CAP 366 R.E.2019] (the ELRA) is applicable to all employees including those in the public service of the Government but excludes members of the Tanzania Peoples Defence Forces, the Police Force, the Prisons Services or the National Services. However, section 2 of the ERLA must be read together with section 32A introduced vide the amendment of the Public Service Act vide Written Laws (Miscellaneous Amendments) (No. 3) Act of 2016. Section 32A requires a public servant to exhaust the remedies provided under the Act before seeking remedies provided for in the labour laws. On this, aspect the Court has categorically pronounced itself the case of TANZANIA POSTS CORPORATION VS. DOMINIC A. KALANGI (supra) having considered the provisions which regulate the disciplinary mechanism for the employees in the public service, the Court held: "As we take it, the im port o f the above-quoted provisions together with a more elaborate 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 fo r the servants in the executive agencies and Government institution, such as the Tanzania Postal Corporation, to be governed by the provisions o f the law s establishing the respective executive agency or institution, subsection (2) makes it mandatory, thus: "W ithout prejudice to sub-section (1), public servants referred to under this section sh all also be governed by the provisions o f this Act". In the context o f the instant case, the CM A is further kept a t bay from entertaining labour disputes involving public servants by the provisions o f section 32A referred to by Ms. Kinyasi, which states categorically that: "Public servant shall, p rior to seeking rem edies provided fo r in labour laws, exhaust a ll rem edies as provided fo r under this A ct From the foregoing analysis and conclusions, we are satisfied that, the respondent in the present case was a public servant who was em ployed in a public office. Thus, upon term ination and exhausting internal rem edies in the appellant's corporation, the provisions o f section 25 (1) (a) and (b) o f the Public Service A ct would have come into p lay because it clearly stipulates that, a ll disciplinary m atters or disputes involving public servants are exclusively within the domain o f the Public Service Commission whose decision is appealable to the President". On account of the position stated by the Court, we therefore agree with Mr. Rumisha that, the CMA had no jurisdiction to entertain the respondent's employment dispute. Thus, the CMA was justified to so hold and with respect, the learned High Court Judge misdirected himself to hold otherwise. We find the two grounds of appeal merited. Having decided the two grounds of appeal we would have ended there. However, it is prudent to determine the 3rd ground of appeal, which is a pure point of law in terms of section 57 of the Labour Institution Act [CAP 300 R.E 2019] and it has a bearing as to when could the respondent invoke the remedies under the Public Service Act. In the said ground of appeal, the High Court is faulted to have concluded that, the respondent was entitled to seek remedy by invoking the jurisdiction of the CMA without exhausting the available internal remedy of appealing to the Board of Directors. The disciplinary matters of the appellant are regulated by its staff regulations titled SHIRIKA LA POSTA TANZANIA, KANUNI ZA UTUMISHI WA SHIRIKA, TOLEO LA NNE; DESEMBA 2014. In the event an employee is aggrieved with the disciplinary committee, Regulation F4 stipulates as follows: "U TARATIBU WA RUFAA KATIKA M ASU ALA YA N JD H AM U Adhabu yoyote, kwa kanuni hizi, ikitolew a na Mam/aka ya Nidhamu kwa mfanyakazi, m fanyakazi huyo anaweza kukata rufaa dhidi ya uam uzi huo kwa Postam asta Mkuu na asiporidhika atafuata ngazi za mam/aka nyingine kwa m ujibu wa sheria. Isipokuwa m fanyakazi atakuwa huru kukata rufaa nje ya Shirika kama Hivyowekwa na sheria haiaii". The unofficial English rendering is to the effect that, any employee who is aggrieved by the disciplinary committee may appeal to the Post Master General and if not satisfied, may invoke other authorities in terms of the law, save that the employee shall be at liberty to invoke remedies provided beyond the corporation. 10 In the present case, besides, F4 stating that an appeal against the disciplinary committee lies with the Post Master General, it as well prescribes that in the event of being aggrieved one can still appeal to 'other authority' as prescribed by the law. The question to be answered is which is the other appellate authority in the scheme of the Staff Regulations. Apparently, the interpretation Regulation A3 stipulates as follows: "Mam/aka ya Rufaa" maana yake n i Bodi ya W akurugenzi ya Posta na Posta Masta MkuU'. The unofficial English rendering is to the effect that, the appellate authority means the Board of Directors and the Post Master General. In Regulation A3, the catch word there is the word 'na' which means 'and' which is a conjunction used to connect words or phrases of the same pattern and not to exclude one from the other. See: Cambridge Advanced Learners' Dictionary 4th edition published by Cambridge University. In this regard, the use of word in Regulation A3 has a plain connotation that the appellant has two appellate bodies in respect of disciplinary matters. Therefore, it is our considered view, the Board of Directors being a supreme body of the appellant, it is mandated with final say on matters relating to employment disputes and that is why under PART A of the Regulations the Board of Directors is prescribed as the overall Disciplinary Authority of the Tanzania Posts Corporation. 11 That said, while the learned High Court Judge was of the view that the proviso creates room for an employee not to seek and exhaust remedy available to the Board of Directors the parties locked horns on the matter. While Mr. Rumisha argued that, the law requires the proviso to be read in the context which entails reading together Regulations A3 and F4, Mr. Aliki had a different view and supported the reasoning of the Judge. In a Book titled: Introduction to Interpretation of statutes by AVTAR SINGH and HARPREET KAUR, 4th Edition; the learned authors observed at pages 5 and 6 as follows: "The m o st a n d ra tio n a l m eth od fo r in te rp re tin g a sta tu te is b y e x p lo rin g th e in te n tio n o f th e le g is la tu re th rou g h th e m o st n a tu ra l a n d p ro b a b le sig n s w hich a re e ith e r th e w ords, th e co n te xt, th e su b je c t m atter, th e e ffe c ts a n d consequences, o r th e s p ir it a n d reaso n o f th e la w . In the court o f law what the legislature intended to be done or not to be done can only be legitim ately ascertained from that what it has chosen to enact, either in express words or by reasonable and necessary im plication. B u t th e w hole o f w h at is e n acte d 'b y n e ce ssa ry im p lic a tio n can h a rd ly be d e term in e d w ith o u t ke e p in g in th e p u rp o se o f o b je ct o f th e sta tu te . A b are m e ch a n ica l in te rp re ta tio n o f th e w ord s a n d a p p lica tio n o f le g is la tiv e in te n t 12 d e v o id o f co n ce p t o r p u rp o se w ill red u ce m o st o f th e re m e d ia l a n d b e n e fice n t le g is la tio n to fu tility .... O rd in a rily , th e d e te rm in in g fa c to r o f in te n tio n o f a sta tu te is th e lan g u ag e em p loyed in th e sta tu te . Gajendragadkar Jf said in a case that 'th e fir s t a n d p rim a ry ru le o f co n stru ctio n is th a t th e in te n tio n o f th e le g isla tu re m u st b e fo u n d in th e w ord s u se d b y th e le g is la tu re its e lf..." In the bolded expressions it has been emphasized that, firstly, one of the most rational methods for interpreting a statute is to explore the intention of the legislature through among others, the context of such legislation; secondly, the initial and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself in order to give effect the intent and purpose of legislation. The principle is applicable in interpreting delegated legislation, as is the case here so as to give effect without distorting or extending the purpose for which the Staff Regulations were made. This was emphasized in the case of DICKSON SAUL LUTEMBA VS. COOPERATIVE AND RURAL DEVELOPMENT BANK (supra) where the Court discussed about the preferred approach to statutory interpretation having borrowed a leaf from Wales cases where it was held: "Today there is only principle or approach, nam ely the words o f an A ct are to be read in their entire context and in their in gram m atical and ordinary sense harm oniously with the scheme o f the Act, object o f the Act, and the intention o f Parliam ent (Rizzo Rizzo Shoes Ltd (Re), (1998) I.S.C.R. 27 at para 21 citing EA . Driedger, Construction o f Statutes (2nd ed 1983) a t page 87, N otham v. London B orough o f B a rn e t (1978) W.L.R. 220". At page 223 of the record of appeal, the learned High Court Judge having considered Regulation A3 which creates two appellate bodies that is the Board of Directors and the Post Master General yet he concluded: "Therefore, it is p la in ly on the face o f the regulations that within the corporation the appellate bodies are two, the Board o f Directors and Post M aster General. A lth o u g h th e re g u la tio n d oes not sta te e x p re ssly th a t an appeal from Post M aster General be lodged and referred to the Board o f Directors, the necessary im plication im plies as such. This is due to the Com position and role o f two appellate bodies under the Tanzania Post Corporation A ct (supra). Post m aster General under section 6 o f the A ct is a com position o f only one individual appointed by the president to be the C h ie f E xe cu tive O ffic e r o f th e C o rp o ratio n , while the Board o f D irectors is a com position o f several members chaired by a chairperson who is also a presidential appointee. Then, at page 226 of the record he concludes: 14 "Most im portant is that the proviso to regulation FA provides a wide range o f choice to an employee o f Tanzania Post Corporation as to where should he refer h is appeal against the decision o f a D isciplinary Body. It does not restrict him to exhaust a ll the appellate stages in the corporation with dear word, isip o ku w a m fa n ya ka zi ataku w a h u ru ku ka ta ru fa a n je ya s h irik a kam a H ivyow ekw a na sh e ria h a la li. This does not provide with the decision can be challenged outside the internal channels between the three i.e., that o f the D isciplinary Board, or that o f the Post M aster General in an appeal or that o f the Board o f D irectors in its appellate capacity." At the outset, since it is the role of the courts to interpret statutes and delegated legislation by invoking the appropriate canons of construction, the absence of express words that an employee must appeal to the Board of Directors, brings into play the essence of construing the relevant provision in the context instead of treating the proviso to Regulation F4 in isolation as suggested by the learned High Court Judge. That said, with respect, we found the construction of the proviso by the High Court Judge wanting and it fell short of giving effect to the intention of the Staff Regulations. We are fortified in that regard due to the following reasons: one, the plain language used in Regulation A3 clearly stipulates existence of two appellate bodies within the Corporation that is, the Post Master General and the Board of Directors; two, 15 the proviso to Rule 4 does not exclude the application of Regulation A3 as that was not intended or else it would have been expressly stated which is not the case because a statute says in a statute what it says there; three, the line of construction invoked by the learned High Court Judge was beyond the intents and purposes of the Regulations which must be avoided because there is no ambiguity and the language used is plain. This was underscored the in REPUBLIC VS. MWESIGE GEOFREY AND ANOTHER, Criminal Appeal No. 355 of 2014 (unreported) the Court said that: "... in the fam iliar canon o f statutory construction o f plain language, when the words o f a statute are unambiguous, ju d icia l inquiry is com plete because the courts m ust presum e that a legislature says in a statute what means and means in a statute what is says there. A s such, there is no need for interpolations, test we stray into the exclusive preserve o f the legislature under the cloak o f overzealous interpretation." In the light of the foregoing discussion, it was incumbent on the respondent to lodge his appeal to the Board of Directors so as to exhaust the internal remedies available prior to invoking other remedies available under the law and to be precise, the Public Service Act. In other words, the CMA had no jurisdiction to entertain the respondent's case as it so held. 16 We thus find the appeal merited and it is allowed. We quash and set aside the proceedings and judgment of the High Court. In the circumstances, it is incumbent on the respondent to exhaust the available internal remedies within the Post Corporation before attempting to invoke remedies available under the Public Service Act. DATED at KIGOMA this 9th day of June, 2023. S. E. A. MUGASHA JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL The Judgment delivered this 9th day of June, 2023 in the presence of Mr. Anold Simeo, learned State Attorney for the Appellant/Solicitor General and Mr. Sadiki Aliki, learned counsel for the Respondent, is hereby certified as a true copy of the original. a D. R. LYIMO >EPUTY REGISTRAR COURT OF APPEAL 17