TANZANIA AIR SERVICES LIMITED v. MINISTER FOR LABOUR, ATTORNEY GENERAL and THE COMMISSIONER FOR LABOUR 1996 TLR 217 (HC)

 TANZANIA AIR SERVICES LIMITED v. MINISTER FOR LABOUR, ATTORNEY GENERAL and THE COMMISSIONER FOR LABOUR 1996 TLR 217 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Samatta JK

D

E

MISC CIVIL APPLICATION NO. 1 OF 1995

22 May, 1995

Flynote

Administrative Law -- Decision-making by public authorities -- Whether there is a

duty to give reasons for decisions reached -- Section 26 of the Security of

Employment Act 1964 F

Common Law -- Application of common law in Tanzania -- Power of the High Court

to modify the common law applicable in Tanzania -- Section 2(2) of the Judicature

and Application of Laws Ordinance, Cap 453 G

Administrative Law -- Exclusion of the jurisdiction of the courts by finality clauses --

Statute providing that the Minister's decision shall be final and conclusive -- Effect

thereof -- Section 27(1)(a) of the Security of Employment Act 1964

-Headnote

The applicant company, aggrieved by the decision of the Labour Conciliation Board

H re-instating an employee whose services had been terminated, referred the matter

to the Minister for Labour under s 26 of the Security of Employment Act 1964, Cap

574. The Minister lawfully delegated his power to deal with the reference to the

Commissioner for Labour who confirmed the decision of the Conciliation Board but

gave no reasons at all I for reaching that decision. Section 27(1) of the Act stated that

the decision of the Minister was final and conclusive. The

1996 TLR p218

applicant sought an order of certiorari to quash that decision contending that the

failure A to give reasons rendered the decision a nullity.

Held:

(i) Under common law there is no general requirement that public

authorities should give reasons for their decisions but that position has been under

criticism; B

(ii) The interests of justice call for the existence, in common law, of a

general rule requiring public authorities to give reasons for their decisions;

(iii) Under s 2(2) of the Judicature and Application of Laws Ordinance, Cap

453, the High Court has power to vary the common law to make it suit local

conditions; C the conditions of the people of Tanzania make it a fundamental

requirement of fairplay and justice that parties should know at the end of the day

why a particular decision has been taken;

(iv) The provision that the Minister's decision is final and conclusive does

not mean that the decision cannot be reviewed by the High Court; indeed no appeal

will lie D against such a decision but an aggrieved party may come to the High Court

and ask for prerogative orders;

(v) Quashing the Labour Commissioner's decision and letting the matter lie

there will be unsatisfactory as it will leave in force the decision of the Conciliation

Board; an order of mandamus, therefore, can be issued by the High Court E invoking

its inherent powers notwithstanding that there is no prayer for the same;

(vi) To ensure that justice is done and also it is seen to be done the order of

mandamus should be directed to the Minister himself, not the Commissioner for

Labour. F

Case Information

Application granted.

Cases referred to:

1. Breen v Amalgamated Engineering Union and Others [1972] 2 QB 175

G

2. R v Gaming Board for Great Britain, ex-parte Benaim and Khaida

[1970] 2 All ER 528

3. Nyali Ltd v Attorney General [1955] 1 All ER 646

4. Healey v Ministry of Health [1954] 2 All ER 580

5. R v Medical Appeal Tribunal [1957] 1 All ER 796

6. Taylor v National Assistance Board [1957] 3 All ER 703 H

7. Tehrani and Another v Rostron [1972] 1 QB 187

8. Padfield v Minister of Agriculture, Fisheries and Food [1968] 1 All ER

694

9. Huth v Clarke [1890] 25 QBD 391

10. Gordon, Dadds & Co v Morris and Others [1945] 2 All ER 616 I

11. Manton v Brighton Corporation [1951] 2 All ER 101

1996 TLR p219

L. Kalunga, for the applicant A

P. Mwidunda, Senior State Attorney, for the respondents

[zJDz]Judgment

Samatta JK: In one of his well-known books, The Road to Justice, Sir Alfred Denning

discusses the importance of a judge giving reasons for his decision. He states as

follows, at 29: B

`The judge must give reasons for his decision: for by so doing, he gives proof

that he has heard and considered the evidence and arguments that have been

produced before him on each side: and also that he has not taken extraneous

considerations into account. It is of course true that his decision C may be correct

even though he should give no reasons for it or even give a wrong reason: but, in

order that a trial should be fair, it is necessary, not only that a correct decision should

be reached, but also that it should be seen to be based on reasons; and that can only be

seen if the judge himself states his reasons. Furthermore if his reasons are at fault,

then they afford a basis on which the party D aggrieved by his decision can appeal to

a higher court. No judge is infallible, and every system of justice must provide for an

appeal to a higher court to correct the errors of the judge below. The cry of Paul "I

appeal unto Caesar" represents a deep-seated human response. But no appeal can

properly be determined unless the appellate court knows the reasons for the decision

of the lower court. For E that purpose, if for no other, the judge who tries the case

must give his reasons.'

In the application now before me I have to determine whether in making his decision

on a F reference to the Minister for Labour (the Minister) under s 26 of the Security

Employment Act 1964, Cap 574 (the Act), the Labour Commissioner (the

Commissioner), who exercises powers delegated to him by the Minister under s 44, is

under obligation in law to give reasons. The application, by way of chamber

summons, G is for an order of certiorari to bring up and quash the Labour

Commissioner's decision by which he confirmed a decision reached by the

Conciliation Board of Dar es Salaam that the respondent, whose services with his

employer, the applicant company, were terminated, be re-instated. The reference to

the Minister consisted of a two-page H document in which the Board's decision was

strenuously attacked. The Commissioner's decision, which was communicated to the

applicant company on Form 8, was couched, when translated, in the following words:

`In accordance with s 26(2) of the security of Employment Act, 1964, I confirm the

decision of the conciliation Board. The employee I should be re-instated'. Not a

single reason was given for this decision. Section 27(1)

1996 TLR p219

SAMATTA JK

of the Act makes a decision of the Minister under s 26 final and conclusive. The A

subsection reads as follows:

`27.--(1) The decision of the Minister on a reference to him under s 26, and,

subject to any decision B on a reference to the Minister therefrom, the decision of a

Board on a reference to it under this Part--

(a) shall be final and conclusive; and

(b) shall be binding on the parties to the reference, and the relationship

between the parties in consequence of the matters in respect of which the reference

was made shall be determined accordingly; and C

(c) may be enforced in any court of competent jurisdiction as if it were a

decree'.

Mr Kalunga, for the applicant company, strenuously attacked the Commissioner's D

decision. He contended that the failure by the Commissioner to give reasons for the

decision makes it a nullity. According to the learned advocate, although in the past

the decision-maker had no duty under the law to give reasons for his decision, the

trend in some common law jurisdictions now is to establish a right to reasons. He

went on to E submit that, to prevent decisions based on caprice or mala fide, a right

to reasons should be recognised. Mr Mwidunda, Senior State Attorney, representing

all the three respondents, opposed the application. Quite rightly, he drew my

attention to the fact that there is no provision in the Act imposing a duty on the

Minister or Commissioner to give F reasons for their decisions made under s 26 of

the Act. According to the learned Senior State Attorney, instead of bringing the

present application the applicant should have sought from the Commissioner reasons

for his decision. Mr Mwidunda urged me to dismiss the application. G

What is the law on this matter? There is, under the common law, no general

requirement that public authorities should give reasons for their decisions: see Breen

v Amalgamated Engineering Union and Others (1), 190--191; R v Gaming Board for

Great Britain Ex p Benaim and Khaida (2) In the former case, Lord Denning MR,

posed and H proceeded to answer the question whether a statutory or domestic body

is bound in law to give reasons for its decision. He said, at pp 190--191:

`... ought such a body, statutory or domestic, to give reasons for its decision ...

? Not always, but I sometimes. It all depends on what is fair in the circumstances'.

1996 TLR p220

SAMATTA JK

The absence in common law of a general rule requiring a decision-maker to give A

reasons for his decision has been criticized by Professor H W R Wade in his book

Administrative Law, 6th ed at 548 where he states as follows:

B `Unless the citizen can discover the reasoning behind the decision, he may be

unable to tell whether it is reviewable or not, and so he may be deprived of the

protection of the law. A right to reasons is therefore an indispensable part of a sound

system of judicial review. Natural justice may provide the best rubric for it, since the

giving of reasons is required by the ordinary man's sense of justice. It is C also a

healthy discipline for all who exercise power over others. "No single factor has

inhibited the development of English administrative law as seriously as the absence of

any general obligation upon public authorities to give reasons for their decisions". ' D

And at 934 of the same book, the learned author states:

`Reasoned decisions are not only vital for the purpose of showing the citizen

that he is receiving justice: they are also a valuable discipline for the tribunal itself ...

[F]or decisions generally a statement of reasons is one of the essentials of justice.' E

The importance of giving reasons for a decision is also discussed by Geoffrey A Flick

in his book Natural Justice, Principles and Practical Application in which, at 87--88,

he says: F

`... First, the requirement of a reasoned opinion provides considerable

assurance that the decision will be better as a result of its being properly thought out.

Second, reasons will enable a person who has a right of appeal to determine whether

he has good grounds for an appeal and will inform him of the case he will have to

meet if he does decide to appeal. In this regard, if an administrative G determination

is not the result of a unanimous votes of the decision makers, the minority opinion

may be of considerable value to an unsuccessful party.... Third, reasons will make a

tribunal more amenable to the supervisory jurisdiction of the courts and will ensure

that a tribunal is acting within its powers. H

That is to say, reasons will inform a person why a decision has been made and

will make manifest any errors of law. Fourth, reasoned opinions will encourage public

confidence in the administrative process. As was noted in a leading English case, even

though a decision may be perfectly correct, if a party was not given reasons he "was

left with the real grievance that he was not told why the I decision had been" (In re

Poyser and Mills' Arbitration [1964] 2QB

1996 TLR p222

SAMATTA JK

478). The exposure to public scrutiny and criticism is healthy.... Fifth, reasons

act as a check on the A exercise of discretion and expertise and will ensure that a

tribunal was performed its functions of considering relevant factors (Davies v Price

[1958] 1WLR 434), and will prevent arbitrary action: Donaldson v Board of Education

of North Wildwood 320 A 2d 857 [1974]. Reasoned opinions also B provide

additional guidance to those who advise parties as to their future conduct ...'

I would add that, insofar as natural persons are concerned, giving reasons for a

decision constitutes a recognition that the parties are rational beings. C

Should I, in determining the instant application, apply the common law as it now

stands or should I apply it after modifying it? This Court has, under s 2(2) of the

Judicature and Application of Laws Ordinance, Cap 453, power to vary that law so as

to make it suit D local conditions. Should I use that power in this matter? I think I

should. It seems to me that the interests of justice call for the existence, in common

law, of a general rule making it mandatory in matters of importance for public

authorities, a term I use to include statutory and domestic bodies, to give reasons for

their decisions. But what are E matters of importance? It is neither desirable nor

possible to define that term, but certainly it should be taken to include all matters in

which the liberty, livelihood or reputation of the individual is concerned or in which

proprietary or pecuniary rights or F interests are at stake. In any other situation the

decision-maker should be bound to give reasons only if he is requested by a party to

do so. In reaching the view that in this branch of the common law variation is

necessary I have been greatly encouraged by the memorable words of Denning LJ, in

Nyali Ltd v Attorney-General (3) Discussing the G proviso to article 15 of the East

Africa Order in Council, 1902, as amended by the East Africa Order in Council of

1911, which conferred similar power on the High Court of East Africa to modify the

common law, the learned Lord Justice said, at 653: H

`The ... proviso says, however, that the common law is to apply "subject to

such qualifications as local circumstances render necessary". This wise provision

should, I think, be liberally construed. It is a recognition that the common law cannot

be applied in a foreign land without considerable qualification. Just as with an English

oak, so with the English common law. You cannot transplant it I to the African

continent and expect it to retain the tough

1996 TLR p223

SAMATTA JK

character which it has in England. It will flourish indeed but it needs careful

tending. So with the A common law. It has many principles of manifest justice and

good sense which can be applied with advantage to peoples of every race and colour

all the world over: but it has many refinements, which are not suited to other folk.

These off-shoots must be cut away. In these far off lands the people must B have a

law which they understand and which they will respect. The common law cannot

fulfil this role except with considerable qualifications. The task of making these

qualifications is entrusted to the judges of these lands. It is a great task. I trust that

they will not fail therein.' C

Some people may argue that varying the common law in the manner I have indicated

would result in placing more burden on the already busy decision-makers. This is an

attractive argument, but I think Geoffrey A Flick's counter-argument in his book,

cited supra, outweighs that argument. At p 89, the learned author states: D

`At least two arguments have been advanced against the giving of reasons.

First, the giving of reasons would impose additional administrative burden and might

well be an undue drain on the resources of an agency ... Such burdens may even result

in the giving of canned reasons. Second, E reasons may hinder the manner in which

a discretion is exercised and it may be though that the exercise of some discretion

should be unreviewable by the courts. But considerations of administrative

expediency should not mitigate principles of fairness and few, if any, discretion

should be unreviewable.' F

In my considered opinion, it is a matter beyond rational controversy that, to borrow

the language of the learned author in the book just cited, fundamental requirement of

fair play requires that parties should know at the end of the day why a particular

decision has G been taken. I think it is intolerable in a democratic society that the

law should allow a decision-maker to whom an appeal or reference is made to make

his decision without giving reasons why he has reached that decision. `The giving of

reasons', said Lord Denning MR in Breen's case supra (at 191), `is one of the

fundamentals of good H administration'. Bearing in mind the vast differences which

exist between our people and those of England in both social and cultural fields and

especially their knowledge of, and attitudes towards, decision-making public bodies,

and taking into consideration the comparable educational backwardness of the

majority of our people, I think it is in the I interests of justice and fair play that

1996 TLR p224

SAMATTA JK

the common law relating to the giving of reasons for decisions should be qualified in

the A manner I have endeavoured to indicate. In my considered opinion, a duty to

give reasons and a right to them should be recognised by our law and treated as being

of decisive importance in administrative justice. Although a decision of the Minister

or B Commissioner under s 26 of the Act is, according s 27(1), cited supra, final and

conclusive, that does not mean the decision is not subject to review by courts. That

remedy is not excluded by those or similar words: see Healey v Ministry of Health (4);

R v Medical Appeal Tribunal Ex parte (5); Taylor v National Assistance Board (6), and

C Tehrani and Another v Rostron (7). No appeal will lie against decisions protected

by such words or phrases, but an aggrieved party may come to this Court and ask for

prerogative orders. Nullity of a decision is not protected by words `final' or

`conclusive'. It follows, as day follows night, that the decision which the applicant

company has D complained against in the instant proceedings falls under this Court's

surveillance. It should, perhaps, also be pointed out that neither the failure nor the

refusal of a decision-maker to give reasons for his decision is a sufficient exclusion of

the Court's surveillance: see Padfield v Minister of Agriculture, Fisheries and Food

(8). E

I have sufficiently demonstrated, I hope, why I am of the opinion that the

Commissioner's failure to give reasons for his impugned decision is a serious

irregularity which makes that decision a nullity in law. An order for certiorari, like

other prerogative orders, is a discretionary remedy. In my considered opinion, every

factor in this matter speaks for F the discretion being exercised in favour of the

applicant company. Mr Mwidunda submitted that certiorari cannot be used as an

appeal. I agree. But it is a rule of common law that where a determination by a

tribunal has been quashed by certiorari, the court G may, in its discretion, refrain

from awarding a mandamus to direct the tribunal to redetermine the matter if

satisfied that the tribunal will duly observe the law upon a rehearing,

notwithstanding that the court could have effectively enforced an order of

mandamus: see Halsbury's Laws of England, vol I, para 125 at 135. Should I invoke

that H discretion and confine myself to quashing the Commissioner's decision or

should I, notwithstanding that there is no such prayer in the application, make an

order of mandamus directing redetermination of the reference? I confess that this

question has exercised my mind quite considerably, but in the end I have reached a

clear opinion on it. I Quashing the Commissioner's decision and letting the matter

lie there will be unsatisfactory to the

1996 TLR p225

SAMATTA JK

applicant company as the decision of the Conciliation Board complained against will

still A be in force. It seems to me, having given the matter careful attention, that an

order of mandamus should be made, but it must be directed to the Minister himself

and not the Commissioner. I am, of course, aware that by Govt Notice No 283 of 1971

the Minister B has, in terms of s 44 of the Act, delegated the functions imposed and

the powers conferred upon him to hear and decide refences to the Commissioner. It is

my view that that delegation does not make it legally impossible for this Court to

make an order of mandamus directing the Minister to determine the applicant

company's reference. The C law is that delegation does not imply a parting with

powers by the person who grants the delegation; see Huth v Clarke (9); Gordon,

Dadds & Co v Morris and Others (10); and Manton v Brighton Corporation (11). In

Huth's case supra Lord Coleridge CJ said at 394--395: D

`But delegation does not imply a denudation of power and authority.... The

word "delegation" implies that powers are committed to another person or body

which are as a rule always subject to resumption by the power delegating, and many

examples of this might be given. Unless, therefore, it E is controlled by statute, the

delegating power can at any time resume its authority.'

And at the latter page, Wills J, said, among other things:

`Delegation, as the word is generally used, does not imply a parting with

powers by the person who F grants the delegation, but points rather to the

conferring of an authority to do things which otherwise that person would have to do

himself. The best illustration of the use of the word is afforded by the maxim,

Delegates non protest delegate, as to the meaning of which it is significant that it is

dealt with in Broom's Legal Maxims under the law of contracts: it is never used by the

legal G writers, so far as I am aware, as implying that the delegating person parts

with his power in such a manner as to denude himself of his rights.'

While I do not case any aspersions upon the ability of the Commissioner to deal with

the H reference with an impartial mind, I feel that, for justice not only to be done,

but also to be seen to be done, the reference should now be determined by someone

else, the Minister himself. I entertain no doubt that I have inherent power to make

the order of I mandamus notwithstanding that there is no prayer for it.

1996 TLR p226

Before parting with this application, I should like to make it perfectly clear that

throughout A this ruling I have assumed, without deciding, that the conferring of

adjudicatory powers upon the Minister does not violate the Constitution of the

United Republic.

For the reasons I have given, I grant the application for order of certiorari and hereby

B quash the Commissioner's decision confirming the decision of the Conciliation

Board. The Minister for Labour, the first respondent, is hereby directed to personally

determine the applicant company's reference in accordance with law as laid down in

this ruling. There will be an order for costs against the respondents. C

1996 TLR p226

D