20170726 TZCA Dar es Salaam

l'J .-~ I •~i---~c· l . IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MJASIRI, J.A. MWARIJA, J.A., And MWAMBEGELE, J.A.) CIVIL APPEAL NO. 28 OF 2013 TANZANIA TOBACCO PROCESSORS LTD ...................................... APPELLANT VERSUS TANZANIA UNION OF INDUSTRIAL AND COMMERCIAL WORKERS (TUICO) •••••••••••••••••••••••••••••••••••••••••••••••.•.•••••••••••••• RESPONDENT [Appeal from the judgment of the High Court of Tanzania, {Labour Division) at Dar es Salaam] (Rweyemamu, J.} Dated 1st day of January, 2013 In .Labour Dispute No. 49 of 2009 RULING OF THE COURT 15th June, & 31 st July, 2017 MWARIJA, l .A.: In this appeal, the appellant, Tanzania Tobacco Processors Ltd is challenging the decision of the High Court (Rweyemamu, J.) in Labour Dispute No. 49 of 2009. In that Court, the respondent, the Tanzania Union of Industrial and Commercial Workers (TUICO) filed a complaint seeking an order declaring it to be the recognized exclusive bargaining agent of the appellant's employees. ,he claim was opposed by the appellant contending that the respondent did not represent the majority of the appellant's 1 employees, a condition precedent for recognizing a workers' union as an exclusive bargaining agent at a work place. Having heard the evidence tendered by one witness from each of the parties, the trial court found that the respondent had majority of the appellant's employees and ordered that it shall accordingly be so recognized. The appellant was dissatisfied with the trial court's decision hence this appeal. The memorandum of appeal consists of the following six grounds:- 1. THA0 the trial Judge erred in law and in fact by holding that the term ''majority of employees" refers to a number of employees held by each union in the work place contrary to the plain meaning of Section 67(1) of the Employment and Labour Relations Act 2004. 2. THAT the trial Judge erred in law by failing to apply the plain meaning when interpreting 2 . Section 67(1) of the Employment and Labour Relations Act 2004. 3. THAT the trial Judge erred in law and fact by holding that in terms of Section 67(1) and (BJ of Employment and Labour Relations Act 2004/ the term 'bargaining unit' refers to the permanent employees only. 4. THAT the trial Judge erred in law and in fact by making a decision that effectively - discriminate between Permanent and Seasonal employees when it comes to Trade Union representations. 5. THAT the trial Judge erred in law and in fact by applying a wrong test in determining what constitutes the majority of employees in terms of Section 67(1) of the Employment and Labour Relations Act 2004. 3 . 6 THAT the trial Judge erred in law and in fact by failing to consider the total number of employees the Appellant has in determining whether a particular union has the majority number of employees. When the appeal was called on for hearing on 15/6/2017, the appellant was represented by Ms. Samah Salah, learned counsel while Mr. Kamazima Idd, learned counsel, appeared for the respondent. The learned counsel for the respondent had earlier on, by a notice, filed on 9/6/2017 filed a preliminary objection and for that reason, we deemed it appropriate to determine first, the raised point of law. The objection consists of one ground that:- "The record of appeal is bad in law for violating Rule 96 (1) (f) of the Court of Appeal Rules, 2009 which renders the appeal incompetent. " Submitting in support of the preliminary objection, Mr. Kamazima argued that the appeal is defective because the exhibits which were tendered at the trial and marked as exhibits P 1-7 (the Documents) were not included in the record of appeal (the Record). He contended that the 4 . omission contravenes the provisions of Rule 96 (1) (f) of the Tanzania Court of Appeal Rules, (the Rules). According to the learned counsel, the exhibits are essential for determination of the appeal, particularly grounds 4, 5 and 6 of the memorandum of appeal. Relying on the decisions contained in his list of authorities filed on 9/6/2017, Mr. Kamazima prayed to the Court to strike out the appeal for being incompetent. The authorities include the decision in the case of Tanzania Air Services Ltd v. Registered Trustees of the Precious Blood Fathers, Civil Appeal No. 90 of 2006 (unreported) in which, the Court decided on the effect of a failure to include in the Record, one of the documents specified under Rule 89 (1) of the Court of Appeal Rules, 1979 (the Old Rules), now Rule 96 (1) of the Rules. In that case, the Court struck out the appeal for the appellant's failure to include a copy of a pleading in the Record contrary to Rule 89 (1) (c) of the Old Rules. In response, though conceding that the exhibits were not included in the record of appeal, Ms. Salah submitted that the omission is not fatal. She argued that the Documents concerned the number of employees of the appellant, the matter which, according to her is not relevant for determination of the appeal. She stressed that since the proviso to Rule 96 5 ... (1) of the Rules allows exclusion of documents which are not relevant for determination of matters which are disputed in an appeal, an appellant is entitled to exclude such documents. It was on the basis of that proviso, she submitted, that the appellant omitted to include the Documents in the Record. In rejoinder, Mr. Kamazima reiterated his submission that the appellant's failure to include the Documents in the Record renders the appeal incompetent. He opposed the contention that the same are not relevant stating that they are vital for determination of the grounds raised in the memorandum of appeal. ·From the nature of the preliminary objection and the submissions made by the learned counsel for the parties, determination of the preliminary objection anchors on only one issue, whether or not the omission to include the Documents in the Record renders the appeal incompetent. Rule 96 (1) (f) of the Rules on which the preliminary objection has been predicated states as follows:- "96-(1) For the purposes of an appeal from the High Court or a tribunal, in its original Jurisdiction, the record of appeal shall, 6 subject to the provisions of sub-rule (3), contain copies of the following documents:- (a}- (e). ... (f} the affidavits read and all documents put in evidence at the hearing, or, if such documents are not in the English language, their certified translation. " As pointed out above, the argument by the learned counsel for the appellant is that the Documents are not relevant for determination of the appeal and did for that reason exclude them from the Record. The proviso to Rule 96 (1) of the Rules relied upon by the learned counsel for the appellant states as hereunder: "... save that the copies referred to in paragraphs (d}, (e} and (f} shall exclude copies of any documents or any of their parts that are not relevant to the matters in controversy on the appeal." 7 • With respect to the learned counsel for the appellant, we find that her argument is based on misinterpretation of sub-rule (1) read together with sub-rule (3) of Rule 96 of the Rules. Rule 96 (1) states clearly that the record of appeal shall, "subject to the provisions of sub-rule (3)" contain the documents listed under paragraphs (a) - (k) of sub-rule (1) of that Rule. Sub - rule (3) of Rule 96 provides as follows:- •~ Justice or Registrar of the High Court or tribunal may on the application of any party, direct which documents or part of documents should be excluded from the record, application for which direction may be made informally. " It is plain from the wording of the above quoted provision that exclusion of a document under the proviso to Rule 96 (1) can only be done by a party after obtaining leave from the Justice or the Registrar of the High Court. The Court had the occasion of considering this point in the case of Fedha Fund Limited and 2 Others v. George T. Varghese & Another, Civil Appeal No. 8 of 2008 (unreported). It stated as follows:- •~ .. the decision to choose documents relevant for the determination of the appeal is not optional 8 . on the party filing the record of appeal. Under Rule 89 (3) (now Rule 96 (3) of the Court of Appeal Rules, it is either a Judge or a Registrar of the High Court who, on application by a party, has to direct which documents to be excluded from the record of appeal. Since the learned advocate did not obtain such leave, it was mandatory for him to file the documents.... " [Quoted in Jaluma General Supplies Ltd v. Stanbic Bank (T) Ltd; Civil Appeal No. 77 of 2011 (unreported)]. The effect of a failure to include exhibits in the record of appeal is to render the appeal incompetent. In the case of Joseph Onaukiro Ngiloi v. The Permanent Secretary, Central Establishment & 3 Others; Civil Appeal No. 78 of 2011 (unreported), the Court considered the effect of the omission and observed that:- "Exhibits on which parties have been examined are an integral part of their cases and therefore vital documents for proper adjudication of any appeal. Failure to include such documents in the record of 9 .. .. ' appeal severely disables the Court from appreciating/ not only whether the said documents were properly admitted, but also whether they were accorded due weight ... " The irregularity was found to be fatal because it contravened the mandatory provisions of Rule 96 (1) (f) of the Rules. That position pertains in the present case. On the basis of the reasons stated above, we hereby strike out the appeal with costs. DATED at DAR ES SALAAM this 26th day July, 2017. S. MJASIRI JUSTICE OF APPEAL A.G. MWARIJA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. COURT OF APPEAL 10