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JUMUIYA YA WAFANYAKAZI v SHINYANGA REGION COOPERATIVE UNION 1997 TLR 200 (HC)

 


JUMUIYA YA WAFANYAKAZI v SHINYANGA REGION COOPERATIVE UNION 1997 TLR 200 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano J

B

MISCELLANEOUS CIVL CAUSE 79 OF 1991

12 August 1997

Flynote

C Employment law - Industrial court - Powers and duties - Matter referred to

Industrial Court by Labour Commissioner under s 9A(1) of Industrial Court of

Tanzania Act - No final or dispositive power in such matters.

Civil Practice and Procedure - Appeals - From decision of Industrial Court - Such

Court subordinate to High D Court - Section 27(1C) of Industrial Court of Tanzania

Act envisages review jurisdiction of High Court to quash errors of law committed by

Industrial Court.

-Headnote

The applicant sought orders quashing the decision of the Industrial Court which had

ruled that it had E no power to investigate a dispute referred to it by the Labour

Commissioner under s 9A(1) of the Industrial Court of Tanzania Act. Counsel for the

respondent attacked the jurisdiction of the High Court to entertain the application,

contending that the applicant should have proceeded by way of appeal in accordance

with the provisions of the Civil Procedure Code.

Held:

F (i) The court had previously held that s 27(1C) was unconstitutional to the

extent that it whittled down the right to an appeal and was inconsistent with article

13(b)(a) of the Constitution. The jurisdiction of the court to quash for errors of law on

the face of the record was traditionally one which fell under judicial review which

was normally sought by G way of application. It was certain that s 27(1C) envisaged

such application;

(ii) On the merits of the application, the power of the Industrial Court in

relation to trade disputes referred to it by the Minister under ss 4(4)(a) or 8 had to be

contrasted with its H power in relation to matters referred to it by the Labour

Commissioner under s 9A(1). The former power was adjudicatory whereas the latter

was merely investigatory. The Industrial Court was accordingly obliged to investigate

the matters referred to it by the Labour Commissioner;

(iii) The Industrial Court had erred in refusing to hold an enquiry into the

matters referred to it and in taking the view that there existed no trade dispute

between the parties. The I application accordingly had to be granted.

1997 TLR p201

Case Information

Order accordingly. A

Cases referred to:

1. Uganda v Commissioner of prisons, Ex-parte Matovu [1966] EA 514

2. OTTU v Attorney General and Anor [1997] TLR 30 (HC)

Kisusi for the appellant. B

Dr Lamwai for the respondent.

[zJDz]Judgment

Mapigano, JA:

Felix Luhende, Nyangaki Shilungushella, Deo Kaholwe, Charles Maziku and Michael

Mhina were C employees of the Shinyanga Region Co-operative Union (1984) Ltd,

the respondent herein. Their respective services were terminated on different dates

between 1989 and 1990. Being aggrieved by the said terminations they took their

complaints to the applicant of which they were members. The applicant reported the

matters to the Labour Commissioner under the provisions of s 9A of the D Industrial

Court of Tanzania Act, 1967 as amended by Act No 3 of 1990. Upon the approval of

the Minister for Labour the said Commissioner duly referred the matters to the

Industrial Court for enquiry, as he considered that there existed a trade dispute

between the parties. He wanted the E Industrial Court to make inquiry on

procedural and substantive levels, to wit, whether the respondent had followed the

laid down procedures when it terminated the services of the five employees, and

whether there were good causes for the terminations.

Sitting at Shinyanga to hear the dispute the Industrial Court had to rule on a

preliminary legal point F taken on behalf of the respondent as to jurisdiction. The

argument advanced was that the Industrial Court had no power to investigate the

dispute because the five complaints were not the respondent's employees and that,

therefore, the matters referred to it did not constitute a trade G dispute. In its ruling

date 27 August 1991 the Court upheld the objection, the assessors dissenting, and it

then pleased the Court to `dismiss the complaints and close the file'.

The applicant has come to this Court to challenge the decision and to seek two orders,

the first being certiorari to quash the decision and the second being mandamus

directing the Industrial H Court to hold an enquiry and then to report to the

Minister responsible for Labour matters in accordance with the provisions of s 9A(1)

of the Industrial Court of Tanzania Act. The validity of the decision of the Industrial

Court is impugned on two grounds. The first is that the Court has no I jurisdiction at

all to make a ruling, as it did, on a

1997 TLR p202

MAPIGANO JA

A preliminary objection, and the second ground is that the court erred in refusing to

conduct an enquiry into the matters referred to it by the Labour Commissioner and

that it had no discretion whatever to refrain from making such enquiry. Let us say

right here that to us these grounds appear formidable, and it is not without

significance that the respondent has not actually bothered to meet B them.

Before we proceed to consider and determine the two grounds we have to dispose of a

preliminary objection which Dr Lamwai, learned counsel, has taken on behalf of the

respondent as to the C competence of this court to entertain this application. Dr

Lamwai has raised that point in an affidavit, and on behalf of the applicant Mr Kisusi

learned counsel, has taken issue with that procedure. We cannot but agree with Mr

Kisusi that it is wholly wrong for an affidavit to embody objections on points of law,

and we need not point out that the question of jurisdiction is one which pertains to

the D realm of law.

An affidavit is essentially a substitute for oral evidence, and should only contain

statements of fact and circumstances. That being the case then we hold in common

with Sir Udo Udoma, CJ in the case of Uganda v Commissioner of Prisons, Ex-parte

Matovu (1), to which we have been referred, E that `such an affidavit must not

contain extraneous matter by way of objection or prayer or legal argument or

conclusion'.

All the same, we have deemed it desirable to make a few observations about the

objection. In F support of the objection Dr Lamwai has urged the point that the High

Court has no jurisdiction to grant prerogative orders against the Industrial Court, his

reason being that the letter is not subordinate to the former. We have accepted Mr

Kisusi's submission that what the applicant is seeking in this cause cannot strictly be

called prerogative orders. We have to remind Dr Lamwai G that in our legal system

remedies of certiorari and mandamus are, since 1968, simply known as orders. We

have rejected Dr Lamwai's contention that the Industrial Court is not subordinate to

the High Court. We have not the least hesitation in saying that it is indeed so

subordinate, and we have H taken the view that that is exactly what s 27(IC) of the

Industrial Court of Tanzania Act signifies, and that that is immaterial that the

proceedings of that Court are sometimes presided over by a judge of the High Court.

In actual fact that is precisely the say it has always been viewed.

I Dr Lamwai has also urged the point that decisions of the Industrial Court are final

and cannot be challenged or questioned except

1997 TLR p203

MAPIGANO JA

on appeal to the full bench of the High Court on points of law, and, accordingly, that

the applicant A should instead have come to this court by way of appeal in

accordance with the provisions of the Civil Procedure Code. We regret to say that we

cannot accept this proposition.

On his part Mr Kisusi points out, correctly, that there is no provision in the Industrial

Court of B Tanzania Act which says that proceedings brought to the High Court to

challenge the decisions of the Industrial Court should assume the form or structure of

an appeal. He also makes the point that a right of appeal from any decision must as a

rule be derived from a statute, and that, therefore, C unless a statute confers the

right it is not otherwise available. We are not in full accord with this expression. As

we understand the law, the position in Tanzania is that the said rule no longer applies

to first appeals, by virtue of article 13(b)(a) of the Constitution whereunder `the right

of appeal or another legal remedy' against first instance decisions of courts of law or

other bodies D which decide on a person's rights or interests founded on statutory

provisions is guaranteed. And in this connection mention might be made of the

recent decision of the full bench of this court in Ottu v The AG and Another (2),

where it was held that s 27(IC) of the Industrial Court of Tanzania Act E whittles

down the right conferred by that constitutional provision; that the section falls

outside the purview of article 30(2) of the Constitution; and that therefore the section

is unconstitutional and invalid to the extent that it is inconsistent with article

13(b)(a). F

Mr Kisusi is however right to contend that the jurisdiction of this Court to quash for

errors of law on the face of the record is traditionally one which falls under judicial

review, which is normally sought by way of application. And we are certain that s

27(IC) envisages such application. In the G circumstances we have to overrule the

preliminary objection, and we so do.

We now turn to the grounds urged in support of this application. In relation to the

first ground the vital question of law is whether the Industrial Court has jurisdiction

to make a final or dispositive H decision in a matter referred to it by the Labour

Commissioner under s 9A(1) of the Industrial Court of Tanzania Act. Mr Kisusi puts

forward the argument that the court does not enjoy such jurisdiction, be it on a

preliminary point or otherwise; that all that the Court could have done in this case

was to conduct on enquiry into the dispute and then submit its report on it to the

Minister; and that it amounted to a wrong assumption of authority when the Court I

1997 TLR p204

MAPIGANO JA

A purported to decide the preliminary objection in the manner it did.

Section 9A(1) deals with the matter this way:

`Subject to subsection (2), where any trade dispute exists or is apprehended,

the Labour Commissioner may inquire into the causes and circumstances of the trade

dispute and, with the approval of the Minister, refer any B matters appearing to him

to be connected or relevant to that trade dispute to the Court whether or not the

matter or dispute is a trade dispute within the meaning assigned to that expression by

section 3, and the court shall inquire into the matters so referred to it and report on

them to the Minister.'

C Mr Kisusi invites us to recognize that the power or function of the Industrial

Court in relation to trade disputes referred to it by the Minister under s 4(4)(a) or s 8

is to be contrasted with its power in relation to matters referred to it by the Labour

Commissioner under s 9A(1). He says that in the D former its function is

adjudicatory, ie `to consider the dispute and make an award thereon', while in the

latter its function is just investigatory, ie `to inquire into the matters and report on

them to the Minister'. this is an unquestionally correct statement of the law and we

embrace it. We think that the language of the statute could hardly be more plain in

assigning those two distinct functions to the E Industrial Court. We hold that s 9A(1)

as read together with s 15(2)(c) imposed an obligation of the Court to investigate the

matters referred to it by the Labour Commissioner and report thereon to the Minister.

We think and hold that it was, in a very significant sense, an arrogation of power on

the F part of the Court to `dismiss the complaints and close the file'.

We come to the second ground. Mr Kisusi submits that the Industrial Court was in

patent and serious legal error when it refused to hold an enquiry into the matters

referred to it, upon taking the G view that there existed, in fact or in the

contemplation of the law, no trade dispute between the parties. Again we are obliged

to sustain this contention and we have to observe that much of what we have stated

in regard to the first ground is also applicable here. The refusal of the Court to

investigate the matters involved a clear disregard of the words of the statute. As we

have already H noted, the simple and explicit words of s 9A(1) compelled it to

inquire into those matters and report on them to the Minister, regardless of whether

or not the matters constituted a trade dispute as defined under s 3. The court's

opinion on the question whether the complainants were employees I of the

respondent or not should, in our view have been stated in the report to the Minister.

1997 TLR p205

In the final event, we are satisfied that this application is well-grounded. We grant

the two remadies A and award the costs to the applicant.

1997 TLR p205

B

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