THE OFFICE OF THE ATTORNEY GENERAL V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR CASE NO. 6469 OF 2024 THE OFFICE OF THE ATTORNEY GENERAL .…………. APPLICANT VERSUS FRANCIS SHENYANGWA……………....................... RESPONDENT RULING Date of Last Order: 29/05/2024 Date of Ruling: 24/07/2024 B.E.K. Mganga, J. On 25th March 2024, this application was filed in this court cited as hereunder:- “ IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REFERENCE NO….OF 2024 IN THE MATTER OF THE EMPLOYMENT AND LABOUR RELATIONS ACT, CAP 366 R.E 209 AND IN THE MATTER OF THE LABOUR INSTITUTIONS ACT, CAP 300 R.E 2019 AND IN THE MATTER OF THE LABOUR COURT RULES, 2007, GN. NO. 106 OF 2007 AND IN THE MATTER OF POWERS CONFERRED TO THE LABOUR COMMISSIONER UNDER SECTION 58(2) OF THE LABOUR INSTITUTIONS ACT AND RULE 53 OF THE LABOUR COURT RULES AND 1 IN THE MATTER OF CONFLICTING DECISIONS OF THE HIGH COURT OF TANZANIA, LABOUR DIVISION NAMELY, FRANCIS SHENYANGWA VERSUS MOBISOL UK LIMITED, REVISION NO. 126 OF 2021, HIGH COURT LABOUR DIVISION AT DAR ES SALAAM AND IN THE MATTER OF LETSHENGO BANK(T) LTD VERSUS SALOME E. MWAKIGOMBA REVISION NO. 322 OF 322 OF 2022 HIGH COURT LABOUR DIVISION AT DAR ES SALAAM.” All documents including the Notice of Application and the Affidavit, bears the quoted heading. In the said affidavit sworn by Suzan W. Mkangwa, the Labour Commissioner, the deponent deponed inter-alia that, the Labour Court, having jurisdiction on all labour matters, has delivered conflicting decisions in the case of Francis Shenyangwa v. Mobisol UK Limited, Revision No. 126 of 2021 and the case of Letshengo Bank(T) Ltd v. Salome E. Mwakigomba, Revision No. 322 of 2022 on the applicability of Regulation 34(1) of the Employment and Labour Relations (General) Regulations of 2017, GN. No. 47 of 2017. Expounding the said conflict, the deponent deponed that, in the case of Francis Shenyangwa v. Mobisol UK Limited, Revision No. 126 of 2021, the Labour court allowed an application for revision in absence of the Notice of intension to seek Revision(CMA F10) but in the case of Letshengo Bank(T) Ltd v. Salome E. Mwakigomba, Revision No. 322 of 2022, the court struck out application for Revision due to absence of the Notice of intension to seek Revision(CMA F10) 2 holding that the said CMA F10 is mandatory. The deponent further deponed that, the points of law to be determined by the Court of Appeal is whether, the notice of intention to seek revision of an award (CMA F10) is mandatory. When the application was called on for hearing, Mr. Deodatus Nyoni, Principal State Attorney, Lightness Msuya and Stephen Kimaro State Attorneys, appeared for and on behalf of the Labour Commissioner. Mr. Tadeus Isaack Masawe, advocate appeared for and on behalf of Letshengo bank(T) Ltd while Roman Masumbuko, Advocate appeared for and on behalf of Salome Mwakigomba. The aforementioned counsel appeared physically in court. Mr. Allen Godian, Advocate appeared for and on Francis Shenyangwa while Mr. Sheck Mfinanga, Advocate appeared for and on behalf of Mobisol UK Limited. The last two mentioned counsel were in Arusha where they reside as a result, they appeared through video conference. Before kicking off hearing, Mr. Nyoni, Principal State Attorney, prayed orally to amend the application so that it can be indicated that the case of Francis Shenyangwa v. Mobisol UK Limited, Revision No. 126 of 2021 was delivered in Arusha and not in Dar es Salaam. The said application was granted because there was no objection from the 3 parties. More so, the judgment of the said case is clear that it was delivered in Arusha. On the other hand, before allowing the parties to make their respective submissions, I asked them to address the court as who are the parties in this matter and whether, parties were properly cited. Responding to the issues raised by the court, Mr. Nyoni, learned Principal State Attorney, submitted that, parties are properly cited. He submitted further that, it is the Labour Commissioner who has moved this court for reference. He added that, the Labour Commissioner has moved this court under section 58(2) of the Labour Institutions Act[Cap. 300 R.E. 2019] and the Labour Court Rules GN. No. 106 of 2007. Learned principal State Attorney added that, there is no format on how to name the parties in the reference. He went on that, Labour Commissioner has filed four (4) references before this court and that, all were titled in the manner this application is titled. On whether parties were properly cited, Mr. Nyoni submitted that, they filed reference No. 1 of 2023 before this court in a similar way they have done in the reference at hand and that, this court (Hon. Mlyambina, J) cited it as it found it proper. He added that, this court (Hon. Mlyambina, J) cited the said reference as William Ryoba Wambura v. Gurunet Reserve Ltd (Reference No. 1 of 2023) 4 [2023] TZH as it is found in Tanzlii. He argued that, the other option is for the court to cite this reference as indicated in this application. He added that, the court has discretion on how it can cite or refer the parties. He went on that, they cited the parties in this application in terms of Rule 53(2) of GN. No. 106 of 2007(supra) and after considering the provisions Section 6 of the Interpretation of Laws Act [Cap.1 R.E. 2019]. It was further submitted by the learned principal State Attorney that, the parties in the conflicting decisions are not bound to appear before this court. When probed by the court, the learned Principal State Attorney conceded that, in terms of section 58(2) of Cap. 300 R.E. 2019 (supra), the parties have the right to be heard before the Court of Appeal if the matter is sent to the Court of Appeal. Responding to the issues raised by the court, Mr. Masumbuko, learned advocate for Salome Mwakigomba, one of the interested parties, submitted that, summons in this reference shows that, the applicant is the Office of the Attorney General, but documents show that the applicant is the Labour Commissioner. He added that, the Court of Appeal may, on its own motion, mention names of the parties as it may consider proper. He went on that, this court may design the statement on how the matter will be referred to the Court of Appeal. He went on 5 that, the Court of Appeal may also choose or use its own practice on how to name the parties. On his part, Mr. Massawe, learned advocate who appeared for and on behalf of Letshengo Bank (T) Ltd, one of the interested parties, and Allen Godian, learned advocate, who appeared for and on behalf of Francis Shenyangwa, the other interested party, concurred with submissions by the learned State Attorney and Mr. Masumbuko learned advocate. On his part, Mr. Sheck Mfinanga, learned counsel for Mobisol UK Ltd, also one of the interested parties, submitted that, the Labour Commissioner was supposed to file an application for certification on point of law and not to title this matter as reference. He added that, as it is, it implies that, this court is hearing the reference that has been filed before it relating to its conflicting decisions. Mr. Mfinanga submitted further that, marginal note of Rule 53 of GN. No. 106 of 2007 (supra) reads “certificate issued by the Labour Court on Labour Commissioners reference to the Court of Appeal”. He added that, Marginal note of section 58 of Cap. 300 R.E. 2019(supra) reads “reference by the Labour Commissioner to the Labour Court and the Court of Appeal”. Mr. Mfinanga went on that, before going to the Court of Appeal, the Labour Commissioner must obtain a certificate on point of law and that, after 6 being issued with the said certificate, the Labour Commissioner files a reference to the Court of Appeal. Mr. Mfinanga submitted further that, in this application, this court is supposed only to determine whether, there is a point of law and not hear it as reference. He added that, this court has no mandate to determine this reference because, it is not the Court of Appeal. He went on that, since this is a reference, this court will issue a ruling and not a certificate on point of law envisaged in Rule 53(1) of GN. No. 106 of 2007(supra). Responding to the issue relating to the names of the parties, Mr. Mfinanga submitted that, naming of the parties is mandatory even in an application for certification on point of law. I have carefully considered submissions of the parties on the legal issues raised by the court suo moto and find that, in my view, this reference was not properly filed before this court as correctly submitted by Mr. Mfinanga, learned advocate. Reasons for my conclusion are based on the provisions of section 58 of Cap. 300 R.E 2019(supra) and Rule 53 of GN. No. 106 of 2007(supra) as pointed out shortly herein below. 7 The Notice of Application is made under Rule 24 and 53 of GN. No. 106 of 2007(supra). The said Notice of Application reads in part as hereunder:- “… TAKE NOTE THAT the Applicant herein above having discovered the conflicting decisions of the cases of Francis Shenyangwa versus Mobisol UK Limited Revision No. 126 of 2021, High Court Labour Division at Dar es Salaam and in the matter of Letshengo Bank(T) Ltd versus Salome E. Mwakigomba Revision No. 322 of 2022 High Court Labour Division at Dar es Salaam shall move the court for among other orders, as following: a) That, This Honourable Court be pleased to certify points of laws arising from the conflicting decisions of Francis Shenyangwa versus Mobisol UK Limited Revision No. 126 of 2021, High Court Labour Division at Dar es Salaam and in the matter of Letshengo Bank(T) Ltd versus Salome E. Mwakigomba Revision No. 322 of 2022 High Court Labour Division at Dar es Salaam for the purpose of referring the same to the Court of Appeal for determination. b) Any other Order that this court may deem fit and just to grant AND TAKE NOTICE THAT the Applicant appoints the OFFICE OF THE SOLICITER GENERAL as the Applicant’s representative in this matter. …” The Notice of Application I have shortly quoted hereinabove, is clear that, the applicant is seeking certification of this court on existence or non-existence of point of law, but the application is titled as reference. In my view, application for certification on existence or non- existence of point of law to be considered by the Court of Appeal is different from a reference. 8 The words in the above quoted Notice of Application that, “ the Applicant hereinabove having discovered the conflicting decisions of the cases of…” raises the issue as, who is the applicant in this reference. As pointed out hereinabove and as quoted hereinabove, the title of this matter, does not show the name of the applicant. In my view, whether this is an application for certification on existence or non-existence of points of law worth to be considered by the Court of Appeal or it is a reference, it is supposed to show the name of the applicant. I am of that view because names of the parties are vital to distinguish the application or reference or case with any other similar application, reference, or cases pending in court or to be filed in future. Names of the parties helps the court and the public at large to be award as who are bound or affected positively or negatively by the decision or order of the court. I am of that view because, court decisions and or orders must be specific meaning that, those affected positively or negatively must be well known. The court cannot issue a decision which it does not know those who will be affected be it negatively or positively. More so, in my view, names of the parties are vital for future reference as precedence and proper citation. What I have shortly pointed out hereinabove takes me to the provisions of Rule 24 and 53 of GN. No. 106 of 2007(supra) cited in the 9 Notice of Application. Rule 24(1), (2) and (3) of GN. No. 106 of 2007(supra) clearly provides that, the application before the Labour Court is by the Notice of application signed by the party bringing the application and supported by the affidavit. In fact, Rule 24(3) of GN. No. 106 of 2007(supra), provides what should be contained in the affidavit. The issue is who is the party who has filed this application. As pointed out herein above, both the Notice of Application and the affidavit in support thereof, were signed by the Labour Commissioner. Therefore, going by both the Notice of Application and the Affidavit in support thereof, the applicant in the matter at hand is the Labour Commissioner. It was in fact, also submitted by Mr. Nyoni, learned Principal State Attorney and learned advocates on behalf of the interested parties that, the applicant in this reference is the Labour Commissioner. In fact, Mr. Nyoni and all State Attorneys who appeared before this court in this matter introduced themselves that they did so on behalf of the Labour Commissioner. Strangely as it is, applicant in this reference is not the Labour Commissioner. What I have quoted hereinabove in the beginning of this ruling, the Notice of Application and the affidavit in support thereof, does not show the name of the applicant rather, shows enabling provisions of laws, powers of the Labour Commissioner and the decisions of this court 10 that are said to be in conflict. In other words, the application does not show that, the applicant is the Labour Commissioner. In my view, it was wrong for this application to be titled as it is. I am of that view because, the Employment and Labour Relations Act, [Cap. 366 R.E. 2019] cited in the heading of this reference has nothing to do with this application. In my view, since the Labour Institutions Act,[Cap. 300 R.E. 2019] and the Labour Court Rules, GN. No. 106 of 2007 are relevant, then, provisions of these laws were supposed to be cited in the Notice of Application to show that the court has been moved under those provisions and not to title the matter as it is. That was supposed to be done after correctly citing the names of the parties in this matter. From where I am standing, and by the look of this matter, the part who has moved this court cannot be clearly said that it is the labour Commissioner. In fact, the Electronic Case Management System(eCMS) shows that, this is Labour case contrary to what was submitted by Mr. Nyoni learned Principal State Attorney and contrary to what is indicated on both the Notice of Application and the affidavit in support thereof signed by the Labour Commissioner. More so, the eCMS shows that, the applicant in this Labour case is the Office of the Attorney General and the respondent is Francis Shenyangwa. In fact, proceedings of this matter printed from the eCMS shows as hereunder:- 11 “ THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR CASE NO. 000006469 OF 2024 CASE REFERENCE NO. 202403251000006469 THE OFFICE OF ATTORNEY GENERAL …. Complainant/Appellant/Applicant/ Plaintiff VERSUS FRANCIS SHENYANGWA .............................. …….Respondent / Defendant …” It is my considered view that, the office of the Attorney General, the abovenamed applicant, has no locus standi or mandate to file an application seeking reference when there are conflicting decisions of this court because that is the mandate of the Labour Commissioner. I am of that firm view because, section 58(1)(a) and (b) of Cap. 300 R.E 2019(supra) and Rule 53 of GN. No. 106 of 2007(supra) are clear that, that is the mandate of the Labour Commissioner as pointed out herein below in this Ruling. I am alive that, the Attorney General is the chief legal advisor of the government and that, he can appear in court on behalf of the government either himself or through the Office of the Solicitor General. That cannot, in my view, be a reason for the Attorney 12 General or the Office of the Attorney General, to be the applicant in this application leaving aside the Labour Commissioner who is mandated to do so. The name “ the Office of the Attorney General” appearing in this Labour case as the applicant was wrongly cited or indicated in the eCMS making this matter to be incompetent. I am of that view because, wrong citation of the names of parties is a fatal irregularity. See the case of Board of Trustees of the Public Social Security Fund (PSSSF) vs William Mwakitalu & Others (Civil Application No. 713/01 of 2022) [2024] TZCA 361 (15 May 2024) and Inter Consult Limited vs Nora Kassanga & Another (Civil Appeal No 79 of 2015) [2019] TZCA 633 (8 February 2019). It is clear as I have pointed out a while ago, that, this application was supposed to be filed by the Labour Commissioner and not the Office of the Attorney General who has no mandate to do so. It is unknown as to whether, it was by design or by accident, to cite the Office of the Attorney General as the applicant in this application. Whatever the case, that cannot help at this stage. It is my considered view that, change of the name of the applicant in the eCMS namely the Labour Commissioner who appears in both the Notice of Application and the affidavit in support thereof to “the Office of the Attorney General” was a clear departure and violation of section 58(1)(b) of Cap 300 R.E 2019(supra) and Rule 24 and 53 both of GN. 13 No. 106 of 2007(supra). That violation has made this application to be fatally defective liable to be struck out. In fact, what I have shortly held hereinabove dismisses submissions made by the learned Principal State Attorney who was joined hands by other learned counsels save for Mr. Mfinanga that, the court can find a way on how to name the parties in this application. Assuming that the Labour Commissioner is the applicant in this matter, of which it is not the case, yet, in my view, it was not proper this matter to be titled as reference. It was correctly in my view, submitted by Mr. Mfinanga that, the Labour Commissioner was supposed to file an application for certification on point of law and not to title the matter as reference. In titling this matter as reference, implies that, this court has to hear the parties, determine and give the correct position between the conflicting decisions. This court lacks that jurisdiction because that is the domain of the Court of Appeal. I am of that view because, section 58(1) (a) and (b) of the Labour Institutions Act[Cap. 300 R.E. 2019] is clear on the powers of the Labour Commissioner and where to file a reference. The said section provides:- “58.-(1) The Labour Commissioner may- (a) refer any point of law, other than the point of law referred to in paragraph (b), to the Labour Court- (b) refer a point of law to the Court of Appeal if- 14 (i) there are conflicting decisions of the Labour Court in respect of the same point of law; and (ii) the parties to the proceedings in those decisions have not appealed.” It is clear from the quoted provisions of section 58(1)(a) and (b) of Cap. 300 R.E. 2019(supra) above that, the said section gives two scenarios of reference to be filed by the Labour Commissioner namely, (i) reference relating to conflicting decisions of this court and (ii) reference relating to any point of law that is not on conflicting decision of this court. It is clear from the quoted provision of section 58(1)(b) of Cap. 300 R.E. 2019(supra) that, reference relating to conflicting decisions of this court must be filed to the Court of Appeal. On the other hand, section 58(1)(a) of Cap. 300 R.E. 2019(supra) clearly provide that, reference relating to any other point of law apart from conflicting decisions of this court must be filed by the Labour Commissioner before the Labour Court. The distinction in section 58(1)(a) and section 58(1)(b) both of Cap. 300 R.E. 2019 (supra) is clear and should be considered by the Labour Commissioner at the time of filing reference either before this court or the Court of Appeal. Documents filed either before this court or the Court of Appeal must also be in conformity to that distinction. It is worth also to point out that, at the time of filing the reference either before this court or the Court of Appeal, the Labour 15 Commissioner must comply with mandatory provisions of section 58(2) of Cap. 300 R.E. 2019(supra) that requires the Labour Commissioner to serve the reference either in section 58(1)(a) or (b) to the Labour, Economic and Social Council established under section 3 of the said Act, be complied with. In the application at hand, the said mandatory requirement was not complied with, as it was conceded by the learned State Attorney. It is clear from the quoted provisions of section 58(1)(b) of Cap. 300 R.E 2019(supra) that, reference relating to conflicting decision of this court must be filed to the Court of Appeal. It is also clear from the wording of section 58(1)(a) of Cap. 300 R.E 2019(supra) that, any other reference on point of law but not on conflicting decision of this court, must be filed before this court. The affidavit in support of the Notice of Application and the attached judgments are clear that, the reference relates to conflicting decision of this court. In my view, titling this matter as reference was wrong because, this court has no jurisdiction to determine its conflicting decisions as it was correctly submitted by Mr. Mfinanga, learned counsel. It is my view that, having formed an opinion that, there are conflicting decisions of this court, the Labour Commissioner was 16 supposed to file an application before this court seeking certification of existence of points of law on ground that, there are conflicting decisions of this court. That application, in my view, cannot be titled as reference, rather, it has to be titled as Miscellaneous application. The prayers in that application should be clear as it was done in this application namely, that, the court may certify that there is a point of law arising from conflicting decisions of this court worth to be considered by the Court of Appeal. My afore conclusion is fortified by the wording of the provisions of Rule 53(1) and (2) of the Labour Court Rules, GN. No. 106 of 2007. The said Rule provides:- “53.-(1) Subject to the provisions of subsection (2) of section 58 of the Act, the Labour Commissioner in making reference to the Court of Appeal of Tanzania shall draw up a statement of point s of law from the cases and their full citation attaching certified copies of all such cases be considered are in conflict and refer the same to the Judge chairman or any Judge in-charge or any presiding Judge assigned by the Judge chairman or Judge in-charge who shall certify the existence or non-existence of such points of law or make any comments found desirable for consideration by the Court of Appeal of Tanzania: Provided that, the Court before issuing a certificate under this rule may invite the Attorney General, Labour Commissioner, an amicus curiae, and any interested party, including the parties in the conflicting decisions which is the subject of the reference to address the Court. 17 (2) For avoidance of any doubt, the Court, where it thinks it unnecessary to be addressed by anybody, shall proceed to issue a certificate as it deems fit.” (Emphasis is mine). It is my view, as it was correctly submitted by Mr. Mfinanga, that, before filing the reference to the Court of Appeal under the provisions of section 58(1)(b) of Cap. 300 R.E. 2019(supra), the Labour Commissioner must file an application before this court seeking certificate on point of law arising from the decisions of this court considered to be in conflict. The Labour Commissioner cannot, in my view, file a reference to this court relating to conflicting decisions of this court. The only application that can be filed by the Labour Commissioner before this court relating to conflicting decisions of the Labour court, is an application for certification of existence of the point of law so that a reference can be made to the Court of Appeal. Therefore, it was wrong, for the Labour Commissioner to title documents filed before this court as reference. It was submitted by the learned Principal State Attorney that, this court has discretion on how it can cite the parties. It was also submitted that, the Court of Appeal will find its own way on how to name the parties. With due respect, that is not the duty of the court. In my view, 18 a party who files a matter before the court has a duty to cite properly the names of the parties. The court cannot venture on speculations and on choosing the correct names of the parties. I am of that view because, the party who moves the court knows the correct name of the opponent in his case than the court can do. Writing or choosing the correct or proper name of the party to the case or an application, cannot, in my view, be left to the discretion of the court. I am of that view because, discretion must always be exercised judiciously based on what is fair after considering material facts put before it. There is a litany of case laws to that position. See the case of Mza Rtc Trading Company Limited vs Export Trading Company Limited (Civil Application No. 12 of 2015) [2016] TZCA 12 (27 October 2016), Victoria Real Estate Development Ltd vs Tanzania Investment Bank & Others (Civil Application 225 of 2014) [2015] TZCA 354, Rose Irene Mbwete vs Phoebe Martin Kyomo (Civil Application 70 of 2019) [2023] TZCA 111, and Omary Shaban Nyambu vs Dodoma Water & Sewarage Authority (Civil Application 146 of 2016) [2016] TZCA 892, to mention but a few. In the matter at hand, I don’t see material facts that can warrant the court to exercise its discretion fairly in naming the parties differently from what they appear in the eCMS. What is plain is that, the person who moved this court has not done his/ her homework properly 19 as who are the parties. In my view, that cannot be a matter of the court to exercise its discretionary powers. In addition to the foregoing, the invitation by the learned Principal State Attorney that, this court may cite this matter as reference so and so of 2024 cannot be accepted because, (i) this is not an application for reference envisaged under the provisions of section 58(1)(a) to be heard by this court as I have pointed out hereinabove and (ii) the number appearing in the eCMS as quoted hereinabove is Labour case No. 6469 of 2024 and not labour reference. In my view, acceptance of that invitation will be an attraction of creation of more and unnecessary confusion, which I am not prepared to see happening. Again, submissions by the learned Principal State Attorney that, they have filed various applications titled similarly to the matter at hand, cannot be a justification for this court to close its eyes and disregard clear provisions of the law as who is supposed to be the applicant in this application. In fact, in my view, for the reasons pointed a while hereinabove, those applications are not free from creating confusion as to how they will be cited or reported. For the foregoing, I will not discuss whether, the cases referred in this matter are in conflict or not. That can only be done when the 20 application is properly before this court. That said and done, I hereby struck out this matter and give the Labour Commissioner twenty-one (21) days leave to refile a proper application. Dated at Dar es salaam this 24th July 2024 B. E. K. Mganga JUDGE Ruling delivered on this 24th July 2024 in Open Court in the presence of Mr. Stanley Mahenge, State Attorney, for the Labour Commissioner, Mr. Fraterine Mnale, Advocate for Salome Mwakigomba(interested party), and Mr. Sheck Mfinanga, Advocate for Mobisol UK Limited(interested party) through video conferencing but in the absence of Letshengo Bank(T) Ltd and Francis Shenyangwa(interested parties). B. E. K. Mganga JUDGE 21