tanzania revenue authority vs minister of labour youth and sports development others 2008 tzhc 300 27 march 2008

IN THE DISTRICT REGISTRY AT MWANZA MISC.CIVIL APPL. NO.l OF 2006 TANZANIA REVENUE AUTHORITY.................... APPLICANT Versus 1. THE MINISTER OF LABOUR, YOUTHS AND SPORTS DEVELOPMENT 2. THE MWANZA REGIONAL CONCILIATORY RESPONDENTS BOARD 3. THE ATTORNEY GENERAL 13/12/2007 & 27/3/2008 JUDGMENT RWEYEMAMU, J: This ruling relates to an application for leave to apply for prerogative orders filed by the applicant in December 2005. The applicants are seeking leave to apply for prerogative orders to quash the decision of the Labour Conciliatory Board (CB) and Minister of Labour, Youths and Sport, (the Minister) (now Minister of Labour Employment and Youths Development by virtue of GN 1 of 13/1/2006). I find it useful to preface this ruling with the following background information: The key issue in this matter stems from an employment dispute between the applicant and its employee one Mkama Pastory, who was dismissed from employment way back in 2002. After the said dismissal, Mkama successfully made a reference to the LCB whose decision the applicant unsuccessfully appealed to the Minister under the procedure provided for by the now repealed Security of Employment Act, 1964. Since then, the dispute that ensued has never come to closure instead it has been subject of multiple cases in different courts. Now returning to the present application Following the respondents decision, the applicant filed this application for leave to apply for prerogative orders to quash the CB and Minister's decision and prohibit them from tampering with the applicant's dismissal decision. Before that application was heard however, Mkama filed HC Misc. Civil cause 19/2006 seeking to be made a party to the present application. He successfully made an oral application to have hearing of this application stayed pending determination of his civil cause 19/2006. At the hearing of that case, the applicant unsuccessfully raised a PO which was dismissed in a ruling dated 21/9/2006; Mkama's application was heard on merit and dismissed on 8/2/2007. That dismissal order was subject of another unsuccessful application for review by Mkama, which was heard and dismissed on 18/9/2007. Finally the present application was set for hearing on 4/10/07. On that date, the respondents submitted that they had no objection to the application which is why they had not filed a counter affidavit. The applicant prayed and the court agreed that the application be argued by way of written submission, but also ordered the respondents to file a written submission giving their reasons for supporting the application. They did not comply; as such this ruling is based on grounds adduced by the applicant only. The application was filed under the Law Reform (Fata! Accidents and Miscellaneous Provisions) Ordinance, Cap.360 now the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, (Cap.310, R.E. 2002); the Judicature and Applications o f Laws Ordinance, Cap.453, now the Judicature and Application o f Laws Act, (Cap.358, R.E. 2002); and the Security of Employment Act Cap.574, now the Security o f Employment Act, (Cap.387, R.E.2002). In submission, the applicant has argued that reference to the previous citations was in err and regretted, but prayed that the court find such err inconsequential in view of the provisions of section 16 of the Laws Revision Act; (Cap.4, R.E.2002) which provides that reference to the laws repealed or affected by a Revised Edition is deemed to be reference to the corresponding law in the Revised Edition. In support of that interpretation, they referred me to a persuasive decision of Massati J., as he then was in Bin Johar Trading LLc v. t r a &3 Others, HC (Commercial Division) Misc. Civil cause 24/2006 (DSM Registry - Unreported), (a copy of which they were considerate to supply to the court). In that case, the respondent raised a preliminary objection faulting the application for leave to apply for judicial review, on account that the applicant had not cited the relevant provisions of the Revised Editions of the Laws on which the application was brought. The Judge held therein, after considering Cap. 4, that the errors were inconsequential. I concur with the Hon. Judge's conclusion, equally find the applicant's error inconsequential, and proceed with the substantive issue in the application. J The applicant relied on the facts adduced in the affidavit of Ngoda N. Msoffe (its HR manager) filed in support of the application and faulted the 1st and 2nd respondent decision on the following grounds: a. "Usurpation of jurisdiction or excessive exercise of jurisdiction b. Error on face of record c. Breach of fundamental principles of natural justice d. Irrationality of decision e. Unreasonableness of decision f. Procedural impropriety g. None availability of alternative remedy" Amplifying on the above, the applicants submitted in brief (among others) that; both respondents had no jurisdiction in making the reinstatement decision because reference to the 1st respondent (CB) was filed after 3 yrs -long after expiry of the prescribed period, as such the reference was time barred and its decision a nullity as was the resultant appeal to the Minister; in view of that, both respondents decisions were ultra vires and this court has powers to invalidate them; further the respondents decision was in breach of natural justice for reason that it contained no reasons for the decision; and finally that the applicant has no alternative remedy - the respondents are a public authority whose decision is not appellable under the governing law, as such the court has powers to intervene using prerogative powers. The issue for decision is simple namely; whether the applicant has made out a case justifying granting of the applied for leave. Although application for leave to apply for prerogative orders "/s not part o f this 'country's' statutory taw but has become part o f our procedural law for reason o f long usage," see the late Lugakingira 1, as he then was in The Republic Exparte Shirima v. Kamati ya Ulinzi na Usalama, 1983 TLR 375. Factors considered in deciding such applications were well put by Mussati 1, as he then was, in Bin Johar cited above, where he observed that "in applications for leave, all that the court looks for is whether the applicant has the locus standi\ has made out a prima-facie case and whether he has timeousiy filed his action. In obvious cases the court may also examine whether the applicant has exhausted particulary alternative statutory remedies... 'Exhaustion of alternative remedies as was also observed by Lugakingira J., in a case earlier cited is not always necessarily a bar. On the facts as submitted, I am satisfied that sufficient grounds have been adduced by the applicant to establishing a prima facie case; showing respondents lack of jurisdiction in the impugned decision for this court to grant the prayed for order. Second, in view of the Security o f Employment Act, Cap. 387, jurisdiction of the court to entertain an appeal from the respondents' decision is ousted. Three, the second impugned decision was rendered by the 1st respondent on 5/9/2005 in Dar Es Salaam, and the application stamped received in the DR's office in Mwanza on 30th December 2005; In the absence of facts to the contrary, I find the application to have been timely filed. Last, I find that in the circumstances of this case, it would be in the interest of justice to grant leave so the application can be argued, for may be that may bring to closure this long standing employment dispute. The present state of affairs must be frustrating and costly to the applicant, who at the end might also have bear accumulating costs of keeping the employment relationship in limbo. In the final result this application succeeds, leave is granted to the applicant to apply for orders of certiorari anti prohibition. Costs will be in the cause. At Mwanza 27/ 3/2007 Delivered in the presence of Mr. Switi Advocate for the Applicant and in the presence of Mr. Kiria State Attorney for the 1st Respondent, 2nd Respondent and 3rd Respondent this 27th day of March 2008. Application granted.