NA TZHC Dar es Salaam 7

\ . IN THE HIGH COURT OF TANZANIA AT· DAR ·ES SALAAM CIVIL APPEAL NO. 85 OF 2008 (CORAM: MWARIJA, MGAYA AND MUTUNGI, JJJ.) UNILEVER TEA TANZANIA LTD . . . . . . . . . . . . APPELLANT VERSUS CONRAD MSEKWA . . . . . . . . . . . . . . . . . . . RESPONDENT (Appeal from the Award of the Industrial Court of Tanzania in Trade Inquiry No. 73 of 2007, C.E.R. William, Deputy Ghairperson) . Date of last order 18/7/2011 Date of Ruling .. RULING Mwarija, J.: The appellant, Uniliver Tea (T) Limited was the respondent in Trade Inquiry No. 73 of2007 in the Industrial Court of Tanzania (hereinafter "the ICT"). In that Inquiry, the present respondent, Conrad M. Msekwa who had been in the employment of the appellant an Assistant Manager, complained that he was unlawfully dismissed from employment. At the end of the Inquiry, the ICT found for the respondent and ordered his reinstatement or in the Page 1 of 14 .. u alternative, the appellant to terminate and pay him terminal benefits according to the law. The appellant was aggrieved by the decision of the ICT hence this appeal. In the memorandum of appeal, five grounds were raised by the appellant: "1. That the Honourable Industrial Court erred in fact and law in holding that no valid disciplinary procedure was taken against the respondent. 2. That the Honourable Industrial Court erred in law and (sic) failing to hold that there was sufficient cause for the respondent's dismissal. 3. That the Industrial Court erred in law in ordering reinstatement. 4. That the Honourable Industrial Court erred in law in awarding excessive reliefs. 5. That the Honourable Industrial Court Page 2 of 14 0 erred zn law in failing ignoring (sic) 'th£ tenns of the contract of service datetJ o1I 06/ 2003." The appellant was represented by M/ S M.A. Ismil & Co, Advocates while the respondent was advocated for by JJ/f Rweikiza & Co., Advocates. Before the appeal proceeded to lmring, the learned counsel for the re8pondent rai8eo a prelimina,ryohjec:tion, lhe no lice of which was filed on 20 th August, 2008. T}i:1; objection was to the fallowing effect: "1. That this appeal is incompetent on the grounii. that the appellant has not exhausted his (si<jJ right/remedies as per the Industrial Court Act, R.E. 2002, but instead he (sic) is seeking ..'tiD invoke the appellate jurisdiction of this Court .:i1:""§. the alternative. 2. This Honourable Court lacks requisite jurisdicti.ffifi to entertain and determine the appeal." Page 3 of 14 u. , On 1/6/2011 we ordered that the preliminary objectionbe argued by way of written submissions. The learned counsel forfhe parties filed their submissions according to the time Schedule ·.fxed by the court . .Jn his written submissions, the learned coumffl for the respondent decided to abandon ground (b) of the ]Jneliminary objection and argued ground (a) only. He submitted thaUhe appeal J has been brought prematurely because in terms of s. :2f5( 1) of the Industrial Court of Tanzania Act, Cap 60 [R.E. 2002] :{iereinafter referred to as "the ICT Act") (now repealed), the appella.It ought to have applied first for revision in the ICT before coming tethis court by way of appeal. He cited to that effect the decision ofthis Court in the case of Ecolab East Africa (T) Limited v. Wilfred.Hokororo & 19 Others, Civil Appeal No.133 of 2005, (HC - DSM) (unreported). On that ground, the learned counsdF for the respondent urged this court to dismiss the appeal with 0'@ts. Responding to the arguments made on behM: of the respondent, the learned counsel for the appellant subrrii~d, firstly, Page 4 of 14 (_) that the appellant could not apply for revision because at the time when the decision was made on 22/4/2008, the ICT had ceased to exist following the enactment of the Employment and Labour Relations Act, No. 6 of 2004 (hereinafter "the ELRA") which came into force on 5/1/2007 vide GN. No. 1 of 2007. He stressed that under s. 103 of the ELRA, the ICT Act was repealed and as a result the appellant could not use the provisions of s.28 (1) of the ICT Act to apply for revision because, according to him, the section was, as a consequence, also repealed. Secondly, the learned counsel argued that even the filing of the trade inquiry in the ICT was wrongly done. He submitted that on 26/7/2007 when the trade inquiry was filed by the Labour Commissioner, the ELRA had already come into force. He cited to that effect the case of Honest Maro v. National Bank of Commerce, Revision No.9 of 2010 (HC - Labour Dev.) (Unreported) in which, it was found that the ICT did not have jurisdiction to entertain a trade inquiry filed after the ELRA had come into operation. Page 5 of 14 Thirdly, the learned counsel for the appellant submitted that it was not a mandatory requirement for the appellant to file revision before instituting an appeal in this court. He cited as an authority, the case of Mohamed Ally & 35 Others v. Bora Industries Limited & Another; Misc. Civil Cause No. 106 of 2003. He argued further that whereas s.28 (1) and (2) of the lCT Act does not make it mandatory that an aggrieved party must apply for revision before filing an appeal to the High Court, under r.4 of the Industrial Court (Revision of Proceedings) Rules, revision is limited only to situations where an aggrieved party did not receive notice of the proceedings from which the decision was made or where the decision was made without affording a party the right to be heard. In his rejoinder submissions, the learned counsel for the respondent argued that the raising by the appellant of the issue of jurisdiction was a misconception because the preliminary objection centred only on the premature nature of the appeal. He contended in the alternative that the issue of jurisdiction of the ICT was raised as a result of a failure by the learned counsel for the appellant to take judicial notice of existing legislation. The learned counsel for Page 6 of 14 () the respondent submitted that although it is· true :that the ICT ceased to exist, by virtue of the ~aving provisions n1.a~ under s. 103 (2) and (3) of the ELRA, it retained jurisdiction T:l entertain pending matters filed in that court as well as the tram disputes stipulated under the repealed laws. He sulnnilled also that following amendment of Part XVII of the ELRA by Act No.~1 of 2010, the ICT was given extension of 3 years to finalize pend\iig matters which were proceeded with under the saving provision ofthe ELRA. We have duly considered the rival arguments :rrmie by the learned Advocates for the parties. We must point out.atthe outset that the pertinent issue before us is whether the appeal.is properly before the court or not. As submitted by the learned coLDSel for the respondent, the issue whether or not the ICT had jurifdiction to entertain the trade inquiry which was filed on 26/7 /200J1Jgoes into the merits of the appeal itself. It is therefore an issrn which is . -, determinable in the appeal. Page 7 of 14 Coming now to the main issue, as stated above, the preliminary objection raised by the respondent is based on the provisions of s. 28 (1) of the ICT Act which provides as follows: "28- ( 1) The court shall have powers) in any proceeding determined before it) on application being made in that behalf by any party or of its own motion) if it appears that there has been an error material to the dispute involving injustice) revise the proceedings and make such decision or award in the manner as it sees fit; save that no decision or award shall be made by the court in excess of its jurisdiction under this subsection) increasing the liability of any party or altering the rights of any party to his detriment) unless such party shall have first been given an opportunity of being heard." Page 8 of 14 From the above quoted prov1s1on, a party who has been aggrieved by a decision of a Deputy Chairman of the ICT has the right of applying for revision before that court. The issue which has been raised is whether an aggrieved party is bound to exhaust that right of revision before appealing to the High Court. We need not be detained much in answering this issue because this is not the first time the issue has been raised. This court has held in a number of cases that an aggrieved party sliall first exhaust that right before coming to the High Court by way of appeal. In the case of Ecolab (supra) cited by the learned counsel for the respondent this court answered the issue in the affirmative. It stated as follows: "As the appellant did not make any application in the Industrial Court to revise the said award, this appeal is premature." The decision in the Ecolab case was 1n line ,vith what was held in another case of Presidential Parastatal Sector Reform Page 9 of 14 Commission [PPSRC) v. EHS Juma & 363 others Misc. Civil Application No. 9 of 2000 (HC - AR) (Unreported). In that case, the appellant had appealed to the High Court against the Order of the ICT granting the respondent's application for execution of an award. Answering thP- issu~ whether the appe11ant could appeal without first exhausting the right of revision before the ICT, the High Court held as follows: - "We are satisfied and we firmly hold that no party can come to this court before exhausting the revisional jurisdiction of the Industrial Court." Yet in another case of Elizabeth Mpoki & 2 Others v. MAF Europe, Dodoma, Civil App. No. 6 of 2007, confronted with the same issue, this court held as follows: "After having gone through the provisions of s. 28 (1) and (4) of the Act and after having considered the decisions in the cases referred Page 10 of 14 l) above [Ecolab and PPSRC cases], we subscribe to the views expressed in the cited decisions. A party who is aggrieved by the decision of a Deputy Chairman of the JCT must first exhaust the available remedy of applying for revision in the same court before filing an appeal to this court." The learned counsel for the appellant had relied on the decision in the case of Bora Industries (supra) to substantiate his argument that it is not a mandatory requirement that an aggrieved party has to apply for revision before appealing to the High Court. With due respect to the learned counsel, that decision is not applicable to the issue at hand. In that case, what was filed in the High Court was not an appeal but rather an application for Certiorari and Mandamus. It is a trite law that availability of an alternative remedy like, for example right of appeal, cannot prevent an aggrieved party from filing an application for certiorari and mandamus. Page 11 of 14 In the case of The Republic Ex-parte Peter Sbirima v. Kamati _ya Ulinzi na Usalama, Wilaya ya Singida, ;1ti.e Area Commissioner and the Attorney General, (1983) TLR :3'15, it was held as follows on that principle: "The existence of the right to appeal and even the existence of an appeal itself, is not necessarily a bar to the issuance of prerogative order; the matter is one of judicial review discretion to be exercised by the court in the light of the circumstances of each particular case." Lastly, there was a point raised by the learned counsd for the appellant concerning the limits of an application for revisoo under the ICT Act. We do not find that point to be a ground up.on which an aggrieved party can skip the requirement of applying for revision before filing an appeal. In the PPSRC Case, the court cmsidered the restrictive wording used in s. 28 ( 1) of the ICT Act which is to the effect that a revision should be confied to situations where "it ll!age 12 of 14 appears that there has been an error material to the merits of the dispute involving injustice." It then observed that despite the wording of the section, the powers of revision have been widely applied in a similar manner as those exercised under s. 44 (1) (b) of the Magistrates' Court Act, Cap. 11 [R.E. 2002]. The court stated as follows: "An aggrieved party may, in the grounds set out in the application raise anything which in his view has affected the merits of the decision and as such has caused injustice . . . the courts have encountered no difficulty in dealing with or what may not be included in such an application for revision. In their exercise of the revisional power under s. 44 (1) (h) the Courts have similar power as those in the exercise of appellate jurisdiction" On the basis of the foregoing, we hold that the appeal has been filed prematurely. As a result therefore, we uphold the Page 13 of 14 preliminary objection and accordingly hereby strike out the appeal. Parties shall bear their own costs. DATED at Dar es Salaam this ......... day of .......................... 2011 A.G. Mwarija JUDGE JUDGE A B. Mutungi r-, f' JUDGE Page 14 of 14