OTTU (ON BEHALF OF P P MAGASHA) v ATTORNEY-GENERAL AND ANOTHER 1997 TLR 30 (HC) D

OTTU (ON BEHALF OF P P MAGASHA) v ATTORNEY-GENERAL AND ANOTHER 1997 TLR 30 (HC) D

Court High Court of Tanzania - Dar es Salaam

Judge Mapigano JJJ, Kyando JJJ and Bubeshi JJJ E

CIVIL CASE 53 OF 1994

20 December 1996

Flynote

F Constitutional law - Right of appeal - Effect of s 27(1C) of Industrial Court of

Tanzania Act 1968 as amended by Act 3 of 1990.

Labour law - Industrial court - Effect of s 27(1C) of Industrial Court of Tanzania Act

1968 as amended by Act 3 of 1990.

-Headnote

G The appellant had instituted a trade dispute in the industrial Court arising from

the alleged wrongful termination of his services by his employer. The action was

dismissed by the Industrial Court. The appellant was advised that no appeal lay

against a division of the Industrial Court in view of the provisions of s 27 (1C) of the

Industrial Court of Tanzania Act 1968 as amended by Act 3 of 1990. The appellant

contended that this provision infringed his rights under article 13(6) of the H

Constitution, which guaranteed the right of appeal against a decision of a court of

law.

Held:

(1) That s 27(1C) deprived a person of his basic right of appeal or another

legal remedy except on grounds of lack of jurisdiction and was therefore

unconstitutional and invalid;

(2) That s 27(1C) was not saved by the provisions of article 30(2) of the I

1997 TLR p31

Constitution: there were no overriding public or societal interests A

reasonably linked to the Constitution imposed under s 27(1C);

(3) That circumstances such as the constitution of the court; the

elaborateness of its procedure, the permissible legal representation and the elegance

and lucidity of the court's judgments were completely irrelevant to the issue in the

present case. B

Case Information

The Court accordingly declared s 27(1C) unconstitutional.

Case referred to:

1. Kukutia Ole Pumbun v Attorney General [1993] TLR 159 (CA) C

Dr Tenga, for the plaintiff.

Salula, for the defendants.

[zJDz]Judgment

Mapigano J:

The facts in this case are in a nutshell and the questions to be decided are purely D

legal and require very careful treatment. The plaintiff P P Magasha was employed by

the National Pharmaceutical Company but the employment was terminated in 1991.

He considered it wrongful and instituted a trade dispute in the Industrial Court in

1991 at Tabora against the company. At the conclusion of the proceedings the action

was dismissed. He felt aggrieved by the decision but he E was appraised that no

appeal could lie against it in view of the legal impediment expressed in s 27(1C) of the

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

Section 27(1C) provides that every award and decision of the Industrial Court shall be

final and not liable to be challenged, reviewed, questioned or called in question in any

court save on the grounds of lack of jurisdiction in which case the matter shall be

heard and determined by a full bench of the High Court. In his pleadings the plaintiff

has averred that this section is at odds with the provision of art 13(6)(a) of the

Constitution. G

Article 13(6) provides that `every person shall, when his/her rights and obligations

are being determined, be entitled to a fair hearing by the court of law or other body

concerned and be guaranteed the right of appeal or another legal remedy (whatever

that may be) against the decisions of courts of law and other bodies H which decide

on his rights or interests founded on statutory provisions'. It may be observed that

this constitutional provision was already in place and force when s 27(1C) was

enacted.

As indicated, the plaintiff has come to this court to question the I

1997 TLR p32

MAPIGANO J

A legality of the section, to urge upon us that the provision purports to take away

the right conferred on him by art 13(6)(a), and to seek a declaration that the section,

to the extent that it is inconsistent with the constitutional provision, is

unconstitutional and therefore null and void. No doubt, as aforestated, it is really B

imperative for us to handle this matter with extreme wariness, for in principle that is

precisely as it must be. There is no question whatever that to declare a provision of a

statute unconstitutional and invalid is invariably a matter of great moment, a fortiori

where, as in the present case, the constitutional provision under reference has

preceded the impugned statutory provision in point of time. C

The argument put forward by Dr Tenga on behalf of the plaintiff is that since s 27(1C)

must be construed to mean what it says, namely, that a court or any other authority is

precluded from inquiring into the legality and propriety of any decision of the

Industrial Court save for matters of lack of jurisdiction, therefore, factual D errors or

other errors in law fallen into by the Industrial Court are not liable to be questioned

or challenged before any such forum. Mr Salula for the respondents meets this

argument by contending that inasmuch as s 27(1C) allows a person to go to the High

Court it cannot be said to contravene art 13(6)(a) and we cannot help wondering

whether this is not an evasive answer. E

The construction put on s 27(1C) by Dr Tenga is in our view the true and reasonable

one. This provision pares away the right guaranteed by the Article, and to all intents

and purposes such is exactly the intendment. Mr Salula has not F provided any

effective rejoinder, and it seems to us that he has not addressed himself to the real

issue. The complaint is not that a person is not allowed to go to the High Court at all.

It is that his constitutional right to go there on appeal or otherwise is improperly

abridged by the statutory provision.

G The argument advanced on behalf of the plaintiff is also that the limitations

which are inherent in s 27(1C) have no plausible connection with the provisos

prescribed under article 30(2), and reference is made to the judgment of the Court of

Appeal in Kukutia Ole Pumbun v The Attorney-General, (1), in which two conditions

were attached to the applicability of article 30(2) where a provision of a H law

happens to be inconsistent with any of the constitutional provisions pertaining to the

basic human rights, freedoms and duties. This is a powerful argument.

Mr Salula however submits that the decision in Ole Pumbun's case does not avail the

plaintiff, because, according to him, s 6 of the Government Proceedings Act of 1967

with which the court was I

1997 TLR p33

MAPIGANO J

dealing in that case was held to be unconstitutional on the ground that it A

completely precluded access to the court, unlike s 27(1C) of the Industrial Court of

Tanzania Act. We are bound to disagree. So far as we can discern that was strictly not

the ratio decidendi of that decision, at any rate the only one. And we think it is quite

explicit that the rules laid down by the Court of Appeal in that B judgment are

eminently capable and were meant to be of wider or general application. Quite

frankly we have to acknowledge having failed to ascertain in what way s 27(1C) can

ever tend to the overriding public and societal interests set out under article 30(2),

how, in other words, the limitations imposed under that section can be reasonably

linked to any of the interests prescribed under the article. We wholly agree and we

hold, therefore, that Ole Pumbun's case avails the C plaintiff and that none of the

provisions of article 30(2) can be called into play.

Mr Salula further submits that s 27(1C) cannot be impugned because, in the first D

place, article 13(6)(a) gives a person aggrieved the right to another legal remedy

besides an appeal. It is quite true that the article guarantees two alternative remedies,

ie, the right of appeal or the right to have recourse to another legal redress. But we

should hasten to point out that this circumstances does not E effectively meet the

objection taken by the plaintiff in the instant case, namely, that the section goes a

long way to negate each of those two alternative rights. As Dr Tenga says, decisions of

the Industrial Court which do not comport with the weight of evidence, or which are

given per incuriam or in deliberate disregard to the relevant authorities, are by virtue

of the section not impugnable. Yet these are the F things which would probably

give rise to the majority of the complaints against the decisions of the Court.

Secondly, it is the opinion of Mr Salula that the Industrial Court is not a one-tier

organ, and that this renders wrong the idea that challenging the decisions of the court

only on grounds of lack of jurisdiction is encroaching upon a person's right G given

under article 13(6)(a). It is also his observation that the proceedings of the court are

held by a judge of the High Court and assisted by two assessors, that an elaborate

procedure obtains; that appearance by advocate is allowed; and that in this case the

proceedings were concluded by a lucid judgment. Upon all this Mr H Salula makes

the argument, a startling argument, that there is no possibility of any abuse of power

taking place in the court.

Beyond doubt, some of those assertions cannot stand the test of logic, and some are

neither here nor there. Mr Salula has not shown I

1997 TLR p34

MAPIGANO J

A how the Industrial Court is not a one-tier organ. For ourselves, we think there is

no way around the fact that the Industrial Court has all the basic hallmarks of a court

of first instance when exercising that particular jurisdiction, and that it is B

essentially a one-tier organ. We also think it is idle to deny that s 27(1C) purports to

whittle down the right given under art 13(6)(a). And we consider circumstances like

the constitution of the court, the elaborateness of its procedure, the permissible legal

representation and the elegance or lucidity of the court's judgments to be completely

irrelevant to what is at issue in this case.

C We have ultimately taken the view that s 27(1C) does not abide by art 13(6)(a).

The section has the effect of curtailing the basic right guaranteed under the Article, as

demonstrated supra, and the language of the section precludes any other conclusion.

As already mentioned, we also take the view that the section falls outside the purview

of article 30(2). We so hold. D

This action therefore succeeds. We are amply satisfied that s 27(1C) of the Industrial

Court of Tanzania Act, 1967 is unconstitutional and invalid to the extent that it

deprives a person of his basic right of appeal or another legal remedy except on

grounds of lack of jurisdiction. E

We so declare.

1997 TLR p35