20140219 TZHC Mwanza2

i IN THE HIGH COURT OF T4NZANIA I LABOUR DIVISION ATMWANZA MISC. APPLICATION NO 13 OF 2013 }¼. · . it: l.:Y' /i' \1, IN THE MATTER OF AN APPLIATION FOR PREROGATIVE ORDERS OF CERTIORARI AND t-tl·!". ,,: ~t:~ PROHIBITION ,'-f '~f:: ,,. ,. · 1P ··tr\>~ BETWEEN 24/12//2013 & 19/2/2014 RWEYEMAMU R.M. J: .:l"~\;}·~%:. :;,:--, ·J:) ,,., iJ; '< ·~ f": This app!IGatioifis•:~upphrted by a joint affidavit sworn by the four applicants (herein, 'the employees'.);,The}apJ1lcation was moved intb Court under section 95 and Order XLIII of .-rf-~:.,.i:,::~t?~.. '··-:t;e~ I the CPC (CAe;~3,:R~f3: 2002); Part VII sections i17 and 18 of the Law Reform (Fata( Accidect and ~fs&ttaneous Provisions Act, (C~p 310 R.E. 2002); section 2 of the Judicatufe!'and'Application ,,._,..,- oftawsl Act (Cap. 358 RE. 2002); section 94 (1) (n of the Empfo~ment ancl Labour Relations Act,6/2004 (ELRA}; section 51 and 52 of the Labour Institutions Act, 7/2004; and rule 24 of the labour Court Rules. GN 106/2007. The application by way of chamber summons was for:- / [lJ "Orders for Certiorari and prohibition to be issued "again'st the 1st respondents decision of . ' i suspending appointments of the applicants, stopping/withdrawing payment of their allowances, and appointing other officers to man their positions that was ultra vires, irrational illogical and in contravention of the principle of natural justice. "And that "hearing of this appli~ftion be:.expedited" ,if-/•· nif}~~~\ ~ , At the hearing, all the employees appeared in person o'i.1t were:g_n the main led by ··..::-._/'· one of them, Mr. Willbard Kilenzi. The 1st and 2nd respondent§,,::,Were represented by Mr.M.H. ;~?!i~',, Mwasimba, State Attorney (SA). Hearing of the case-.-::>-.:,Jpro~~eded ,._,_ .. by way of written submission. I am grateful to the parties for their infotmativeiubmissions --~ .,;': which made it easy ' ",( for me understand the key issues in this case. ,.,.~:i>,~. ' •~~, /j/~;t1·~-f>-.l<?:,th~.1)* ,!? ·~~~I lf~~, \:~~ti'; 1i11 The following facts are common1¢ause. 1.-.' a)}Jhe four applicants are employees of the ! . ~ 1 Marine Service Company Limited (herei~ ~fter,,<~~Cl), which is a limited liability company. The employees were occupying po~itions which entitled them to titles and allowances /·\ -~~·<)}",, before occurrence of the complalrf~d_of:action by the 1st respondent. The 1st respondent 1~.. """:,. -': 1 was a Permanent Secretary}P$}qtAfi'e Ministry of Transport- the parent Ministry of MSCL, /~-- ,< t.\-\-. ,, ~:.~~ ;_ which is 100% owned by\the Goyernment; c) Like all such companies, MSCL is managed -~.;'- .~,-.; through its Boarg .offDirec'tbrs'':' 'd) All the four employees, by virtue of their salary grades, < ,·;•\;?J\-~ ~\:'~. were appointe~~.qfth~:•MSCL Board; e) on 8/3/2012, the PS informed the employees in ~~ ,' · · ,'~IL , .. ,,.'.,: writing that; tfl;if'.wo~~;performance was not satisfaftory; their appointments into posts they held was $y$J?ended; ahd'that they should hand over their duties to other identified officers. f) The '"{~\;J:~ ,':,. , ,1{f/! employees1~9Jriplied ,. with instructions, they remain suspended and continue to receive salaries but not allowances for the posts from which they were suspended. Those facts give rise to the following complaint by the employees':- a- That the PS's action was ultra vires because he was not the employees' disciplinary authority. b· That the l2J [;/\, ~'- PS's action was in breach of the principles of natural justice because the employees were denied and continue to be denied a right to be heard. C-That the ultra vires acts of the PS against the employees resulted in withdrawal of their entitlements, allowances and benefits. And that as a result, the employees suffered and continue to suffer financial loss as well as loss of reputation and goodwill. The application was opposed. The SA's position on (a) ~bove' Was; that the PS as a Chief Executive Officer of the parent ministry, had powers,to,supervise affairs of the MSCL '· ,, including issuing the impugned order. Regarding ground· (b):::,his position was that the complaint is premature. Since the employees were not terminated but suspended pending proper enquiries by the Board, their right to be heard. woultf be granted to the employees when their suspension is enquired into by tlie neW Board. Regarding ground (c), the . ,.,.-'.•.,. , .,.,. , ' --}:-._ .l> response was that the withheld allowances were-not employees' rights. \C' ';/, Before deciding the contested issues,J,:fdund · it simpler to identify principles of law .. '.'," and practice that govern grant of !~e sought for writs of certiorari and prohibition in Tanzania. ,., From what gathered, they are as fo,llows:- 1. An administrative bod/or ,, trib'unal 'exercising functions that impinge directly on legally .,(, ' recognized interests· bas a a·uty to act judicially in accordance with rules of natural justice.' See ". -;--;: ·< > .," the late Mapigaho~J. in'Simeon Manyaki v I.F.M., 1984 TLR from page 304. 2., Where an administrative body ... " exceeds its powers, or abuses them so as to exceed them, aco~rtpflaw can quash or prohibit its decision and declare it to be legally invalid'. See the late Kyando J. in J. Yusuf v Minister for Home Affairs, (1990) TLR page 80. 3. Certiorari and prohibition merely works to quash or prohibit the complained of action. Where there is no action to be quashed or prohibited, the writs would not issue because issuing the same would amount to an exercise in futility, and "... the court is [3) I ' /~ V"' not expected to engage in (such a) futile exercise ... ". See the late Lugakingira J., as he then was, in P. Shirima v. Ulinzi & Usalama, (1983) TLR at page 384. 4. In exercising such powers, "the courts are not acting as appellate bodies over ... (such) /,, decisions or orders; they only investigate the legality or otherwise of ,a deci~i8ri,, ... i~ other ...-:i /•;' 1:r., ,".,i words, this power of the courts to review or to investigate is not b~ii'c1 on· the 'ril~fit: _.,., -::-.:/:.\,,. \·/'· but on the legality ... " (Emphasis mine) Kyando J., supra. See also the CA'JI::~~cision in Rahel ·-.1·:::.<lr.. Mbuya v Minister of Labour and AG, Misc Civil Cq~se. 11/2000 a decision •~~~\l / ~- de livered on 22/5/2008 (unreported but available 011s•_C-;:.tfre:W,~R}. ,;,..:~f~• In that case, the CAT noted with approval a holding,6f:the Supreme Court of India /\t;._ ;:l,\, ·:.. regarding the "... character and scope ... " goveroin'g:t.tl.~jssue / .: _:,~ of such writs. That Court ., '~: '':' :., ~':' ·,?" ""\,·':, noted inter-alia that: "The Court issuing a w~t of 'certiorari' acts in exercise of supervisory and ,;" .;.::-=},;{,' \\>,... ..••-.!".·~·. not appellate jurisdiction. One conseq,fonce of thisiftnat the Court will not review finding of fact...even if they are (it is), erroneou\t 'cl~ . ·~•:{~~:c::t/:-" 5. Issue of the writs is discretidiry; existence of alternative and equally effective <-i:t~. . vf:~K~.;-, remedy is not automatjcallf:a·Qar'to the issue of the writ of certiorari or prohibition. The <::t.... ,_ ir,? . - Court can issue the:wri(fdespite existence of alternative remedy where requisite /' ~- '"\_•;'~'I,. grounds exist. Bcit,-., in aj~huation where there is a statutory alternative remedy, and 1 .6'/?:-:;{~~:. ::{:;-7;-·:t such rerne9:X;:is mb,r~ effective, speedier, and le~s costly however, certiorari will not ' ' issue. ':j:~~~r th9-t1exercise, I noted that in their submissions, the parties had not focused on '•,.':H~-- ..(;,: . I the questiofriof existence of alternative remedy, and on whether under the circumstances of this case, if such alternative exist, it bars me from issuing the requested writs. I asked the parties to address me on the question. I am obliged to their responses; the last submission was filed on 24/12/2013 and their arguments are summarized below. [4] The employees submitted that they had no alternative remedy and even there was, the same was not a bar to granting the application. They gave the following arguments to support that position. First, that since they were not civil servants, they could not invoke provisions available under the Public Service Act, 8/2002 read together ~ith::fart Vof the Public Service Regulations GN 168/2003. Second, that since the~- irnpugrled ·.,, Qr9er - was given ' :. by the PS, who in hierarchy is above the MSCL Board an appeaftotHeJ3oard would not be an effective remedy. Third, that since alternative remedies ~a~~ proved ineffective, this Court is entitled to grant reliefs by way of prerogative orders,:·· ',. That was opposed by the State Attorney who"argued)hat; one, since employees had ' "·····- ',. ·f •.< . . . . not been terminated but had their 'titles and resp6nsibl!ities relieved', they had alternative remedy, namely, to challenge the PS's action thr~ugnJsuperior office (I hasten to point out f::_ that, such officer was not named). Twofthey cou,ld also challenge the PS's action by '· ..'.,: ..,_ /•' appealing to the Minister of the resp9nsibit?mihistry because MSCL is 100% government ·owned.Three, the applicants have;~l(eady taken alternative remedy by filing action in the CMA. In rejoinder, the empl~ye~i\~b;itted that the CMA has no powers to issue sought ·,,., ;:_, for orders of cerliorari and proh~~itionr>\ ( ·•·:~:- '._ I 1{:'. Armed witl:l prlncipl~s identified herein above viewed in light of parties' arguments, I reach the follqwing ~oncJusion:- ,: /.>·~:> I(,•' i\'.• . :~ /. 1/'Th~ first issue to be decided is whether given circumstances of this case, particularly the;riatu~e of reliefs sought by the employees. certiorari is an effective remedy. As earlier noted, a writ of cerliorari only results in quashing the complained of decision. If I issue the same in this case, the PS's decision will be quashed, and then what? Can I thereafter grant the relief the employees seek- being reinstated in their positions? That relief is not among the available remedy in such applications. And [SJ I even if such an order could be made, it would be unenforceable because it is undisputed that other persons have already appointed in their positions. To issue reinstatement order would amount to the court order being an exercise in futility, which as a principle, the Court abhors. In my view, those consideratio11s,:trillitate ·- against m, ,,.,., .· r,\., .; ~ __; issue of cerliorari. ~{1' 0 • (- :: ;i~:\tt(, , ·, ·. ,.~•._ t,? 2. The second issue is whether there is any action to be prohibited,-~nd whether this :;/~~- ': ·~, court can properly issue such a writ. ("(·<·,-~ , ✓--S: ,; ~, t;s':/ The action sought to be prohibited is withdrawal ,of allql/t/ances. Before I can issue 'ii..,;:::,.,, ,:::·c- such an order, an enquiry has to be made intQ:~heth,~r.s·uch allowances are in law :'._,,,-?>-... ;:~, deserved or not. Doing that would involvez;goirrg]rrtcfthe merit of the impugned f) -z~,, decision which unfortunately, fallS,:outsid~-the.,sbope of what prohibition properly deals with. The other fact I coniB~r is th~t11·;;~hibition will not solve the question of \~·~>.",. .if} refund of the withheld allowances:·oue:toilhe said circumstances, it is my view that ,(: .~} prohibition would not be an 8PPt9~!iate remedy . . ,"~'. , '· ~<?;_:-).. . '~;: ..,i:'." J.~•J~. ;;,~\ff:~~,;,:'~ 3. The third issue is whetner..,embloyees have a more effective alternative remedy to c(/;:.' :~·~;- '.";'. ~,.~~-.:.-,·., redress their SUSR~nsion;; loss of allowances, and injury suffered if any. 't~.?~; ,,, .>\i In my co~siqfred ,9;ph1lon, the employees have a statutory alternative to obtain a \>',,_~Ii ·::-,:., I speediei:r:i}i&cJiVJ~/~nd adequate remedy. That alternative is available under the /·::•-,.::,.. _ /' I ELRAiUn8e(lhat ::--· law, employees can file anraction of unfair labour practices _,.,, . ct,~.challengihg 'the complained of action. They can also, among others, file a claim for 1 --r.,~'!~;_i· •"'~~ unfai£~~Uspension or Constructive termination and claim for the alleged rights to ''-.!.(' withdrawn allowances, economic \oss and injury. That available altemative is in my \Jiew. more effective, and can lead to grant of adequate/effective remedy. [6] .• • In the end result, my decision is that this application must fail and is hereby dismissed because the employees have an alternatiJJ statutory remedy, which is more effective and speedier. I make no orders as to costs. JUDGE 191212014, ! Date: 19/2/2014 Coram: Hon. R. M. Rweyemamu, J :! (<ff,t' st rd th Applicant: 1 - present; 2nd present; 3 present ~ pres,~~-. ' I',. '"iii}!' •~,~l!th ~,i~ For Both Respondents: Mr. Mwasimba SA . CC: Christopher ;;# /p11 Court: This matter is for ruling. Ruli, '. deliver, {fii1~ 19/2/2014 in presence of parties as indicated above. Right of Appeal explained. 4R.M. Rweyema JUDGE,· ' ,Ji .' l 19/2/2014 i /' FINAL COPY ' i i I ,I [7]