NA TZHC Dar es Salaam5 2

. IN THE HIGH COURT OF T,\NZANIA (D.A.R ~S SALAAM DISTRICT REGISTRY) AT DAR "ES SALAAM MISCELLAN"80U8 CIVIL C.b.USE N0.45 OF 1997 . TANZANIA TELZCot-1MUNICA'J'IONS COMPJ\.:NY LIMITED 0000000 APPLICANT Versus 1 • THE INDU.STRIAL COUHT OF TAN?ANIA ) 0 G O O O O O O O O O •• 0 RESPONDE!'JTS 2. 1'HE HONOUR.I\ BLE NPTORNEY GENERAL ) ..... ( C R I P E ~ - BUBEE'.HI, J. MANENTO, ~ ) ,. RULING OF THE COURT MANENTO_, J.: This is an 2pplication for orders of c~rtiorari to bring before this court and quash the decision of the Industrial Court of Tanzania dated 26/6/97 in Trade Dispute Number 1 of 1995 between Lawrence Mwakyambiki and Tanzania Telecommunications Company Limited (T.T.C.L.). The application is correctly made under Section 2(2) of the Judicature and J\pplication of Laws Ordinance~ Cap.453, Section 17(2) of the Law Reform (Fatal Accidents and Miscellanious Provisions) Ordinr:mce (Amendment) Act No. 55/1968, Section 27 of the Industrial Court Act, 1967 as a.mended by Act No. 3 of 1990. The facts leading to this a·rmli c:s,tio:n c,::.n be found -<"rom the ruling o::' the Industrial Court of Tanzania and partly from the submis(c;ions of the applicant's counsel in suppo:C't of their application • . a • • 2 The complainant Lawrence G.E. Mwakyambiki was employed by the Respond::mt compa.ny in the post of Chief \:J'.)rks Manager. The complainant was employed and was in the management of the employers business as per report of the labour officer wh:ich was contained in form LTF.9 which was made in accordance to section 4( 1A)(a) and section 4(5) of the Industrial Court Act No. 41/67 as amended by Act No. 3 of 1990. Before the hearing of the Trade Dispute 9 the counsel for tbe T.T.C.L. (employer) raised a preliminary objection that the Industrial Court had no jurisdiction to hear the Trade Dispute as it wa.s hopelessly time barred. The facts leading to that submission were that the complainant employee was summarily dismissed from his work on 10b12.1993. He reported the Dispute to the labour officer on l+/1/1995.,· That was a period" of one year· from the time he was dismissed - from his employment to the time he reported to the labour officer. That was alleged to be in contravention of the mandatory provision of section 4(5) of' the Industrial Court Act No. 3/1990 which provided that an employee has to report to the labour officer within 30 days from the date of hir5 dismissal from his employment. On the other hand, the learned counsel for the respondent Mr. Kalolo had conceded that the I respondent was dismissed en 10/12/1993 but he had to a~1peal to the Board of Directors ar,ainst his dismissal. He complained to the Minister for I Communication about his dismissal a.~d the Minister directed the new 3oard of Directors to re-hear the appe:JL That was on 15/3/940 The Board obeyed the instrucb ons of the Minister and. the respondent was heard and his ._o called appeal was dismi,ssed a..,d the decision was communicated to him on 21/4/94. In his further submissimrn, the learned counsel for the respondent snid that the new Bord had just confirned the decision of the previous Board of Director's, however 9 section 3 10 of Act Noo 2 of 1973 does not provide for specific period of time for an employee to request for the labour officers opinion. Hence he concluded by saying that it being a contract of emplyment the law of Limitation is applicable; therefore, the respondent was not time barred. Not only that but the d::ite of dismissal sho~1ld be taken to be 21/12/94 ::md not 10/12/93 so that he W3.S within 30 days period as he reported the matter to the labour officer on 3/1/95 it being 13 days only. In the final analysis, the deputy Chairman of the Industrial Court ruled that the Trade Djspute was within time despite the unanimous opinion of the two assessors who advised the deputy chairman that the Dispute was time barred. Th.Gt was then the reason why the ap-plicant filed this application for judicial review. Before we proceed \,Ji th the detsrmination of this application, it should be made clear that the respondents, the Attorney General he was did not file ru,y written submissions though informed of the courts order to file a written submission as ev.idenced by a. copy of a letter to this court dated 25/11/98 and received by this court on 30/11/98 with reference number MC/TTCL/20-18/98/32 written by Mro Mchome advoces'ce. 'v!e are therefore acting upon the counter affidavit of the respondent, and the submissions of the ap-_Jlicant:c·. In his affidavit, Mr. Ndunguru 9 a principal officer of the applicant compa..11y deponed in l1.:i s 9th, 10th and 11th pe..ragraphs of th, affidavit that the Industrial Court acted on an ultravires order of the Minister 9 that it lacked jurisdiction to hear the Dispute and that as the decision of the Industrial Court i,,.ras final 4 and conclusive, the only remedy was by way of judicial review and it is by a11. order of certiorari" In his counter affidavit I the learned state attorney cl.eponed th:cit he would need a strict proof from the applicant in regard to paragraphs 9, 10 and 11 of the affidavit and finally concluded by saying that thjs application is just aimed at wasting of time of the Industrial Court to finally determine trade dispute No. 1/1995 on meritsa In this ruling we shall combine the two i terns of u,l tra vi res and unreasonableness of the ruling of the Industrial court and finally determine whether the Industrial court had no jurisdictic,n to hear and determine the disputea From the admitted facts, the complainant, Mr. Lawrence Mwo.1'-:yambiki was in the· employment of the management of the employers businesso Therefore his disciplinary authority was the Board of Directors. Secondly, there is no dispute thri.t he was not heard by the Boa.rd of Directors which decided to dismiss Mwa.kyarnbiki summarily on 10/12/1993c It is alleged that there was a new Board of Directors apnointed ,:o.nd ciue to the complain2,nt' s complaint to the Minister for Communications 9 the said Minister ordered the new Board of Directors to re-hear the complainant. That direction of the Minister was issued on 15/3/94, some 94 days after the date the complaine.nt ~ Mwakyambiki i was surr:marily dismissed by the Tioard of Dir2ctors on 10/12/930 The Counsel for the applice.nt submitted th.:=it the Minister for communication ha.s no legal powers to order the cor,1pany 1 s Board of Directors to he2,r a di,smis:::ed ern·ployee by the authority which had- such powers to dismiss the employeea Therefore, the order of the MinistEcr to order the Board to hear an appeel by the aggrieved employee was ultra vi:ces. Consequently~ the Industrial Court of 5 Tanzania c1lso acted ;::i.l.~~~~ in taking into consideration the ultra vires order of the Minister for communication in computing the limitation period. The basis of this submission is that since 1st LTaYluary 1994 the applicant corrrpany w3.S a Limited li.sibili ty company incorporated under the companies ordino.nce Cap. 212 (with certificate of incorporation Noe 24490). 'l'he learned counsel further submitted that the Min.i,ster was wrong in ordering the Board of limited liability company to hear a11 appeal by the complainant as there was no such provision providing for such an appeal once an employee is summarily dismissed. We she.re the submissions stated above though not in the same way they are submitted. The complainant employee had been summc:;.rily d:ismiss0d. by the Board of Directors which · had such authority to act as it acted. It was wrong for the Minister to order the same Board of Directors ( though changed fa.ces) to re•-heRr the employee on a matter they had alre:'dy decided upono The Board of Directors was (1) functus officio in that it had already decided on the issue, and ( 2) if the Minister thought that there wa.s a chcmge of Board, then the new Board o-f Directors had no basis to re-hear the matter which had already been determin2d by the. previous Board of Directorso The matter was therefore £._~judicata-0 Taking the reasoning pursued by the learned counsel for the applicant company, we agree that there was no procedure })roviding for an appeal which was ordered by the Minister to the Board. However on 2.ppeal, the appeal lies to a superior court or tribunal if the lai,._r expressly provides so and in the absence of such express provision, no appeal could lie to the same tribunal which had decided the same issne between the so.me partieso 6 As we have ruled that the Mjnister acted ultra vires in ordering the Board to hear the appeal/or re-hear the complairnmt, then it follows that the deputy chairman of the Industrial court took into account ez:traneous matters thAt were outside its mandat,e in computing the limitation period as he ruled that the limitation period commenced on _the elate the new Eo-3.rd dismis'"'ed the complaint of the employee, adher-ing to the decision for summary dismissal dated 10/12/93, This court ( full bench) insisted that no person shovld act outside the -powers conferred upon him by a specific proviisiono That was in Misco Civil Cause Noo 65 of 1951 (Dar es Salaam Registry) The facts in that case were that the President of the United Republic of 'ranzi'lnia had. ordered that employment of J<:lisifa Kimaro &nd others who were employees of the National Milling Corporation be terminated. When the c~se reached the Industrial Court, the c0urt held th8t it had no jurisdiction to he2..r :3nd determine it be cause the termination .d n . ap::grieved b came ctS a resu 1 t of the orrl.er of the Presi e1.ct o ueing - . · . · y the a(?'grieved O decision of the Industrial Court, the employees filed an application for orders of certiorari., to challenge th,~ findings of the Industrial court a.n.d the court, ( Chuwa, Jo , Mwaikasu, Jc , and Kya.ndo, J.) had this to say:- ,·:rt is needless to emphasise here that in whatever he may do that may adversely aff 12ct the rigts of any SU:JjGCt or any person under the realm of the United Republic, even the President of the United Republic 9 has as required under our consj_titution to observe the rule of law 9 that is to sa.y, he h9.s to 7 so act under authority of a specific- provision of law, empowering him so to do. Iri the circumstances, the Industrial court clearly took into account extreneous matters thc=-1 t were. outside the province of its mandateir. What this quotation above means is that nobody should act if he hss no legal powers or authori t;y to act ,:,n msttc:rs which will affect· others. By analogy here, the Ninister for CJ:nmunications has no powers whatsoever to order the Board of Directors to either re-hear the complainant of Mwakyambiki or order it to hear the applic2.nt as &'1 appellate Board to the decision of the 11revious Board of ' C Directors. Equally, the IndustriP:l Court acted wrongly by acting on extraneous order of the Minister for comnrnnications. The passage above covers the Second ground in the SubmisGion, that the dedsion of the Industrial Court was unr-2asonable, as it is ho.sect on the instructio:>:1s of the Minister for communica.tion while the said Minister himself acted without ::my legal powers to order the Board. Equally, there fore 1 the Industrial Court took into account extraneous m2..tters tho.t were outside the proviace of its mandate. Lastly, the le"crned counsel for the o.pplicr:0.nt submitted that the Industrial court,actea without jurisdiction. For the purpose of ease of reference, we hereby reproduce section 4(5) of the Industrial Court Act, No. 41/1967 as Rmend.ed by Act No. 3/1990. 8 So 4(5) Any ·trade dispute which is instituted in accordance with the provieions of this Section shall not be brought before any concilliation 'I'ribunalo Every trade dispute shall first be reported to the fi,~,ld branch at the place of Hork within thirty days of its occurence; but where there is no field h:;.~arich the complaj n:;mt shall report the trade dispute to the locs.l D:i strict SecretaJy of the registered. trade union or, if h0 is not a mc;rnber of the trade union, to the local district officer, and no person may report a trade dispute to the La½our Commissioner unless tbis subsection is first complied Hithic. The basis of this application centres· on this subs,2ction (5) of Section 4 of the Industrial Court Act, Noo3/1990o The applicants are submitting that ➔:he complainant r(~-ported the trade dis-::iute after a year from the date he was dismissed from his employment 7 that is to say 10/12/93. From the ruling of the Deputy Chairman of the Industrial Court, the Minister for Comm"t..mication directed the New Board of Directors to hear the appeal on 13/3/94. The complainant until at that time bad not reported the trade dispute to the loc'al district Labour Officer and that wo.s alre2dy 94 days "'-'hile the law required him to renort within a period of thirty dayso He was late by sixty four days even if the Minister had not acted. . . 9 As the ruling of the Industrj_al Court h2.s shown? the complainant misdirected himself by complaining to the Minister against his dismissal by the relevant authority rather than lodging his complaint to an authority which had powers to nullify or vary the decision of the Board of Directors. He believed that the new Board of Directors could act in his favour on a ma.tter alre2.dy decided by its predecessor. It was again unfavourable .L l t,O 1nm. • It is very true and correct as submitted by tl1e le,?Tned counsel for the applic2,nt that orders of certiorari co.n be isGued by the High Court whsre it is found that the surbordinate court or tribunal acted with or without authority, including lack of jurisdiction. The Court of Appeal in the case of SINAI MIRTJMBE g. ANOTill'~R Vs; f'-'.iUh0RE CJLACHA (1990) 'ILR 54 had this to say at page 56: ,; An order of cert;iorari is one issuedby the HiE;h Court to quash the proceedings o.nd. the decisj_on of ::\. subordinate court or n tri bunnl or a public authority where, ar:r;ong others tht;r,3 is no rirzht of appeal. The High Court is entitled to investigate the proceedings of a lowGr court -::i:r- tribunal or a public authority on any of the following grounds; apparent on tbe record. One, ttE:t the subordinate court or tribunal or public authority has taken into account matters whj_ch in (sic) ought not to have taken into account. Two, that the co1-1.rt or tribunal or public authority lws not taken into account matters 1,1hich j_-[: our;ht to have ta.ken into account. Three, lack or excess of jurj_sdiction by the lower court ••• n 10 It is very tr1J.e that judici,:'-1 review lies where thens is no other remedy- to the applicant to rwve the me.t;+er looked into by the High Court, such D..s where the la_w d.oes not Eillow any aT,Jpe,il which is the direct way in which the decj si on of the surbodinate. cou.r:-t or tri bun.al or public auth,.)ri ty could be challenge do The Industrial Court of Tan zani2 is a court of its own nD.ture o It is not a Subordinate court, yet it stands as a Court, created ,S1)Gcifically for matters relating to employers and employees, that is to say, labour mattcrso Yet its decisions are so.id to be final and conclusive, bino.ing all parties to it, but the law gave an automr,,,tic ric;ht for its decisions to be challenged if the chc:,llcnge is relc1.ted to jurisdiction of the court, that is to say, if th:; court ·acted without· ,jurisdiction, or it. e:xceeded its jurisdiction. Thus Section 27 of the Industrial Court Act IJo. Lf1/67 G.s ''l.m,mded by Act No. 3/1990 provided tht,t ;- s. 27( 1.) · Every 2.ward a.nd decision of ~he Court shall be fimi.l and sh0ll not be liable to be ch8llenged, rr}vieHed, questioned or called in question in any court save on the grounds of lack of jurisdiction;: o The applic nt f,biding to the ebove quoted section of the 12.w 0: 1 requestes this court to review the ruling of tho Industrial court on the ground that it la.eked jurisdiction to rule that the tra.de dispute which was hopelessly out of time was pronerly befor<3 it o We have toJ.ready ruled tho.t tb.e Industrinl Court acted on extraneous matters which were ultra vires, in that it followed an erroneous order of the Minister for Comrnunica.tion and by doing sos it acted contrary to its authority given to it by Section 4(.5) of the 11 Industrial Court Act Noo 3/19990 which prov~ded for :::, time limit within which e dispute should have be,m reported. -!:o either the field branch of the registered trade union or to the lobour 0fficer if the employee is not a mernbr~r of the trade dispute o Thie is therefore a fit case for review by this court by way of orders of certiorari in which the ruling of the Industrial cm ..·t can be quashedo In the final analysis, we Dgre::c· w:i th the prayers by the applicnnt that the trade dispute number 1 of 1995 of the Industrial Court was impro;:iorly before the Court a,s it wc1.s filed &fter t:r"e expiration of the 30 days allowed 'oy law c.nd the ruling in the said court that it had jurisdiction to hen.r the dispute is quashed o.nd set .e.side o We think that it wouJ.d be unjustified to make orders for costs for the re2.son that it is not known as to how the complaimmt, Mwakyanibiki, 1 is earning his living :l.nd he is not a party either in these proceeding.so ii It is so orderedo ,. / t _,,·, \//> /'. .· ·. .' ~ I Bo D. C'rlIPETA JUDGE Ao Go BUBESHI JTJDGE JUDGE ,-',