Minister for labour and youth development and A.G v. Tanesco, (certiorari, removal from office)

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

(CORAM: NSEKELA,J.A., KIMARO,J.A, And OTHMAN,J.A.)

CIVIL REVISION  NO. 2 OF 2000

MINISTER FOR LABOUR AND

 YOUTH DEVELOPMENT……………………………..1^ST APPLICANT

THE ATTOTNEY GENERAL…………………………2^ND APPLICANT

VERSUS

TANESCO……………………………………………..RESPONDENT

(Revision from the ruling of the

 High Court of Tanzania at Dar es Salaam)

(Mapigano,J.)

dated the 7^th May, 1999

in

Misc. Civil Application No.8 of 1997

…………………

RULING OF THE COURT

18^th February & 

KIMARO, J.A.

        This revision falls under section 4(3) of the Appellate Jurisdiction Act, 1979.  It was initiated by the Court “suo moto” upon receiving a letter of complaint from one Robert Mkisi dated 1^st September, 1999 that he was adversely affected by the ruling of the High Court in Miscellaneous Civil Case No. 8 of 1997, the matter before the Court having been decided wrongly.

        A brief history of the matter before the High Court was that Robert Mkisi was an employee of TANESCO.  Following disciplinary proceedings taken against him by his employer under section 23 (2) of the Security of Employment Act, 1964 he was dismissed from employment on 9^th September, 1995. Being dissatisfied by the decision of the employer, Mr. Mkisi made reference to the Reconciliation Board.  The Reconciliation Board confirmed the decision of the employer.  He appealed to the Minister for Labour and he won the appeal.  The employer was ordered to reinstate him in employment and the order of the Minister was complied with on 4^th March, 1997.

        Although Tanesco reinstated Mr.Mkisi, it was dissatisfied with the decision of the Minister.  Without notice to Mr. Mkisi, Tanesco filed an application in the High Court of Tanzania, seeking for leave to file proceedings to challenge the decision of the Minister and pray for an order for certiorari.  The application was filed on 3^rd March, 1997 while the decision of the Minister was given on 14^th June 1996.  The major complaint by Mr. Mkisi was that the application by the employer in the High Court was time barred as it was filed by Tanesco after six months, in contravention to section 19(2) of the Law Reform (Fatal Accidents and Miscellanous Provisions) Act, CAP.310 R.E.2002.  Basically that is what moved the Court to act “suo moto” and it invited the parties to come and assist the Court in arguing the application.

        For convenience sake, the Minister for Labour and Youth Development and the Attorney General were made the applicants and Tanesco the respondent.  Before us it was Ms Sehel, learned Senior State Attorney who appeared for the applicants and Mr. Kisusi learned counsel for the respondents.  On whether the application by Tanesco was filed in time, Ms Sehel said that the proceedings filed in the High Court on 3^rd March 1997 showed that the Court was informed that the parties did not appear before the Minister to receive his decision on the reference which was made by Mr.Mkisi.  The decision was posted to the parties, and it was not until 16th September, 1997 that Tanesco became aware of it.  Since under sections 18(1) and 19(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act, CAP 310, the limitation period for filing such applications is six months, argued Ms Sehel, and the application was filed on 3^rd March 1997, it was within time.  The complaint on the limitation period for filing the application by TANESCO, said Ms Sehel, has no merit.

        On his part, Mr. Kisusi said that unlike section 19(1) of the Law of Limitation Act, 1971 which provides in very clear terms on when time starts to run, sections 18(1) and 19(2) of the CAP 310 are silent on how time starts to run.  In this respect, argued Mr. Kisusi, it is not clear  what happens in between the time when the decision of the Minister was made and when Tanesco became aware of the decision.  He said there was no way in which Tanesco could have taken any action against the decision of the Minister before that decision was made known to it.  Mr. Kisusi said the ambiguity in the provisions of sections 18(2) and 19(1) of CAP 310 could have been caused by absence of rules regulating the procedure for conducting proceedings for prerogative orders as required by section 19 (1) of the said legislation, but that omission should not be a justification for blaming Tanesco.  He prayed that the application be dismissed.

        As stated before, Mr. Mkisi’s complaint is that the application which sought for leave to file proceedings for prerogative orders made by Tanesco in the High Court was filed after the expiry of six months, the limitation period set for such applications under the Law Reform (Fatal Accidents Miscellaneous Provisions) Act, CAP 310.  The issue before us is whether the application was time barred?  Both advocates stated correctly in our view that under sections 18(1) and 19(2) of CAP 310, the limitation period for seeking for leave to file proceedings for prerogative orders is six months.  Section 19(2) of CAP 310 provides:

                “Subject to the provisions of subsection (3),

                rules made under subsection (1) of this section

                may prescribe that applications for an order

under section 17 shall, in specified proceedings

be made within six months or such shorter period

as may be prescribed after the act or omission

to which the application for leave relates.”

        We are aware that, so far, there are no rules yet made by the Honourable Chief Justice.  In the absence of such rules we are settled in our minds that, much as the provisions are silent on when time starts to run, common sense demands that time should start running after a party becomes aware of the decision sought to be challenged by way of prerogative proceedings.  It is only after a party becomes aware of the decision or order and weighing its consequences that action can be taken.  Tanesco became aware of the order on 16^th September, 1996 six months from that date ended on 16^th March 1997.  The application was filed on 3^rd March, 1997.  It was therefore within time.  The complaint by Mr. Mkisi is unfounded.  It is dismissed.  Since these proceedings were initiated by the Court “suo moto” we make no order for costs.

DATED at DAR ES SALAAM this day of  2009.

H. R. NSEKELA

JUSTICE OF APPEAL

N. P. KIMARO

JUSTICE OF APPEAL

M. C. OTHMAN

JUSTICE OF APPEAL

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