Ottu(On Behalf of P P Magasha) v. Attorney General and Another, Civil Case No. 53 of 1994

Ottu(On Behalf of P P Magasha) v. Attorney General and Another

High Court (Mapigano, Kyando and Bubeshi JJ.): December 20,1994

Civil Case No. 53 of 1994

Constitutional Law- fundamental rights- alternative remedies- whether s.27 (1) negated each of two alternative remedies under Article 13(6) of Constitution

Constitutional Law-fundamental rights-right of appeal- Section 27(1) of Industrial Court of Tanzania Act, 1967- whether pared away right guaranteed by Article 13(6) of Constitution-whether saved by Article 30(2) of Constitution

The National Pharmaceutical Company employed the plaintiff P P Magasha until 1991 when it terminated his employment.  He considered it wrongfully terminated and instituted a trade dispute against the Company in the Industrial Court in 1991 at Tabora.  His action was dismissed.  He felt aggrieved but could not appeal in view of the legal impediment in s. 27(1C) of the Industrial Court of Tanzania Act, 1968.

That section provided that every award and decision of the Industrial Court would be final and would not be liable to be challenged, reviewed, questioned or called in question in any court save on the grounds of lack of jurisdiction.  If the matter related to jurisdiction, then the matter would be heard and determined by a full bench of the High Court.  The plaintiff averred that this section contravened Article 13(6) of the Constitution guaranteeing a fair hearing and a right of appeal or any other legal remedy.  Article 13(6) was already in place when s.27 (1C) was enacted. 

Counsel for the plaintiff argued that the effect of s.27 (1C) was that a court or any other authority was precluded from inquiring into the legality and propriety of any decision of the Industrial Court save for matters of lack of jurisdiction.  Therefore, factual errors or other errors in law made by the Industrial Court could not be questioned or challenged in any forum.

Counsel for the defendant on the other hand argued that inasmuch as s.27 (1C) allowed a person to go to the High Court it did not contravene Article 13(6) of the Constitution.

Held:

1.  Section 27(1) pared away the right guaranteed by Article 13(6) of the Constitution.  It could not be saved by Article 30(2) of the Constitution as there were not public or societal interests linked to that Article.  It therefore fell outside the purview of Article 30(2).

2.  Although Article 13(6) gave an aggrieved person the right to another legal remedy beside appeal, the section negated each of the two alternative remedies.  The Industrial Court has all the basic hallmarks of a court of first instance when exercising that particular jurisdiction, and it is essentially a one-tier organ.  Section 27(1) purports to whittle down the right given under Article 13(6)(a).

Section 27(1) of the Industrial Court Act, 1967 unconstitutional and invalid to the extent that it deprives a person of his basic right of appeal or any other legal remedy except on grounds of lack of jurisdiction.

Legislation considered:

1.    Constitution of the United Republic of Tanzania Articles 13(6)(a), and 30(2)

2.    Government Proceedings Act, 1967 s. 6

3.    Industrial Court of Tanzania Act, 1968 as amended by Act No. 3 of 1990

Cases referred to:

1. Kukutia Ole Pumbun v. The Attorney General

Dr. Tenga for the plaintiff

Salula for the respondents

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