TANZANIA DAIRIES LTD v CHAIRMAN, ARUSHA CONCILIATION BOARD AND ISAACK KIRANGI 1994 TLR 33 (HC)

TANZANIA DAIRIES LTD v CHAIRMAN, ARUSHA CONCILIATION BOARD AND ISAACK KIRANGI 1994 TLR 33 (HC)

Court High Court of Tanzania - Arusha

Judge Mroso J

MISCELLANEOUS CIVIL APPLICATION NO. 56 OF 1990 B

18 December, 1992

Flynote

Prerogative orders - Parties to applications for prerogative orders - Whether a private

individual may be joined as C a co-respondent in an application for prerogative

orders.

Labour law - Limitation of time - Time within which to file a reference to the Labour

Conciliation Board or further reference to the Minister - Security of Employment Act

1964 and Law of Limitation Act 1971. D

-Headnote

This was an application for the orders of certiorari and mandamus, made under s 2(2)

of the Judicature and Application of Laws Ordinance, Cap 453, and the Law Reform

(Fatal Accidents and E Miscellaneous Provisions) Ordinance, Cap 100, as amended

by the law reform (Fatal Accidents and Miscellaneous Provisions) Ordinance

(Amendment) Act 1968, and s 95 of the Civil Procedure Code, 1966. The second

respondent was dismissed from employment as senior accountant by a letter of 22

March 1988, and he referred the matter to the Conciliation Board on 22 June 1989, far

beyond the F 14 day limit set by s 23(2) of the Security of Employment Act, Cap 574,

as amended by Act No 1 of 1975. The Board proceeded to hear the reference despite

the limitation of time. The applicant obtained leave of this court to apply for the

orders of certiorari and mandamus against the Chairman, Arusha Conciliation Board

and one Issack Kirangi, first and second respondents respectively. G Amongst the

issues was whether it was proper to join an individual, the second respondent, in an

application of this nature.

Held:

(i) In the absence of clear authority to the contrary, the applicant could

validly join Isaack Kirungi, a private individual, as a co-respondent; but the

prerogative orders, if granted, will H only be directed at the first respondent;

(ii) The Security of Employment Act does not provide that time for filing a

reference to the Board or a further reference to the Minister could be extended on

application;

(iii) The Law of Limitation Act 1971 applies to appeals and applications I

1994 TLR p34

A made to a court of law only, not otherwise; accordingly, the provisions

of that act do not apply to proceedings before the Labour Conciliation Board under

the Security of Employment Act;

(iv) Once the law puts a time limit to a cause of action, that limit cannot be

waived even if the opposite party desists from raising the issue of limitation;

B (v) The Conciliation Board acted ultra vires when it heard and decided on

the reference after the time provided by law had expired.

Case Information

Certiorari and mandamus granted.

Case referred to:

C (1) Assistant Registrar of Buildings v Fredrick G Kibwana, Court of Appeal

at Mwanza, Civil appeal No 1/1987 (unreported).

Maro, for the applicant.

Mwaimu, for the respondent.

[zJDz]Judgment

D Mroso J: This is an application for the orders of certiorari and mandamus made

under s 2(2) of the Judicature and Application of Laws Ordinance, cap 453 and the

Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, cap 100, as

amended by the Law Reform (Fatal Accidents and Miscellaneous Provisions)

Ordinance (Amendment) Act 1968. Section 95 of the Civil E Procedure Code, 1966

has also been cited in aid. Tanzania Dairies Limited, henceforth to be referred to only

as the applicant, obtained leave of this court in Miscellaneous Court Application No

150 of 1990, to apply for the orders of certiorari and mandamus against the Chairman,

Arusha F Conciliation Board and an individual, one Isaack Kirangi, henceforth to be

referred to as the first and second respondents respectively.

During the hearing of this application the applicant was represented by Mr Mareo,

learned counsel G from the Tanzania Legal Corporation, and the first respondent

was represented by Mr Mwaimu, learned State Attorney. The second respondent

fended for himself. I raised the question whether it was proper to join an individual,

one Isaack Kirangi, as a respondent in an application of this nature. The Arusha

Region (Labour) Conciliation Board had given an award in favour of Mr Kirangi

whereby H the applicant was ordered to reinstate him in its employ.

Mr Maro argued that it was thought proper to include Mr Kirangi as a respondent

because under Rule 22 of the Crown Office Rules, 1906 which is law in Tanzania by

virtue of the reception clause in the Tanganyika Order-in-Council, 1920 which

applied the practice and procedure obtaining in England on I 22 July 1920,

1994 TLR p35

MROSO J

persons affected by proceedings may show cause. That means, according to Mr Maro,

that any A party affected by proceedings in a court or tribunal could be made a party

in an application for the prerogative orders. The second respondent being a party who

would be affected by the present proceedings was thought to be a proper party to be

joined as a respondent. B

Mr Mwaimu held the view that the second respondent should not have been made a

party because the orders of certiorari and mandamus cannot be directed to a private

individual. He did not cite any authority in support of that view. The second

respondent himself, being a layman, said he was not in a position to argue whether or

not he had locus standi in these proceedings. C

On reflection, and in the absence of clear authority to the contrary, I think the

applicant could validly join Isaack Kirangi as a second respondent, even though, if the

court grants the orders applied, they can only be directed at the first respondent. I

have come to hold this view because, according to D Halsbury's Laws of England,

1989 ed at 110, if an order nisi to an application for mandamus, for example, is given

(I take this to be the equivalent of an order for leave to apply for the order of

mandamus), `then notice has to be given to every person who, by the affidavits on

which the order is moved, appears to be interested in or likely to be affected by the

proceedings, and to any person E who, in the opinion of the court or judge, ought to

have such notice'. The phrase `every person' does not appear to be restricted to the

one to whom the court order would be directed but to any one `who appears to be

interested in or is likely to be affected by the proceedings'. There can be no doubt that

F the second respondent is a person interested in and who is likely to be affected by

the orders sought, if they are granted. The first respondent, of course, is the correct

party, being a kind of tribunal which exercises statutory powers of a public nature.

Now, then, to the merits or otherwise of the application. G

The applicant summarily dismissed the second respondent on the ground that, when

called upon to do so, he failed to produce to the employer originals of certificates

which would verify his qualification for the post of senior accountant which had been

offered to him. The second respondent, acting H under provisions of the Security of

Employment Act, cap 574, made a successful reference to the Arusha Regional

Conciliation Board, which ordered his reinstatement. Because of non-compliance

with certain requirements under the Security of Employment Act, the applicant could

not appeal the Conciliation Board award, but believing the Board acted ultra vir- I

1994 TLR p36

MROSO J

A es in hearing the reference beyond the requisite period of limitation, applied to

this court for the orders of certiorari and mandamus to remove the proceedings in the

Board and quash them.

The second respondent was dismissed from employment as senior accountant by a

letter of 22 B March 1988. The reference to the Conciliation Board was filed on 2

June 1989, a year and three months after the dismissal. But s 23(2) of the Security of

Employment Act, cap 574, as amended by Act 1 of 1975, requires that the reference to

the Board was to be made within 14 days of dismissal. There has not been any serious

dispute that the reference was filed well after the time limited by law. C Indeed, the

Board was aware of it but proceeded to hear the reference. Although the applicant

claims it protested against the hearing of the reference on the ground that it was time

barred, that is not apparent from the copy of proceedings of the Board which the

applicant filed in this court as an annexure to the application.

D It has been argued before me that there is a lacuna in the Security of Employment

Act, cap 574 in as much as it is not provided therein that time to file a reference to the

Board or a further reference to the Minister could be extended on application.

E It is true indeed that there is no provision in cap 574 for extension of time to file a

reference to the Board or a further reference to the Minister.

Mr Maro, on the other hand, has argued that there is no lacuna in the law. He submits

however that F ss 14 and 46 of the Law of Limitation Act 1971 provide sufficient

remedy. Section 14 provides -

`14(1) Notwithstanding the provisions of this Act, the court may, for any

reasonable or sufficient cause, extend the G period of limitation for the institution of

an appeal or an application, other than an application for the execution of a decree,

and an application for such extension may be made either before or after the expiry of

the period of limitation prescribed or such an appeal or application.

(2) For the purposes of this section "the court" means the court having

jurisdiction to entertain the appeal or, as the H case may be, the application.'

Section 46 provides -

`46. Where a period of limitation for any proceeding is prescribed by any

other written law, then, unless the contrary I intention appears in such written law,

and subject to the provisions of s 43, the provisions

1994 TLR p37

MROSO J

of this Act shall apply as if such period of limitation had been prescribed by

this Act.' A

Section 43 excludes certain proceedings from the application of the provisions of the

Law of Limitation Act. These are criminal proceedings, applications and appeals to the

Court of Appeal for B East Africa (now presumably the Court of Appeal of Tanzania)

certain proceedings by the Government, forfeiture proceedings under the East

African Customs and Transfer Tax (Management) Act 1952, proceedings in respect of

forfeiture of a ship or an aircraft and any proceedings for which a period of limitation

is prescribed by any other written law, save to the extent provided for in s 46. C

After considerable thought, I have come to the view that the provisions of the

Limitation Act 1971 apply only to appeals and applications made to a court of law. In

s 14(1) of the Limitation Act, for example, reference is made to court. The Act itself

does not define the term and one has to look at D the definition of the term in the

Interpretation of Laws and General Clauses Act 30 of 1972. There `Court' is defined

as `any court of Tanganyika of competent jurisdiction'. Even the term `proceeding' in

s 46 refers and is restricted to a court proceeding. A definition of the term as used in

the Law of E Limitation Act means `a suit, an appeal or an application and includes

proceedings under customary law'. I hold, therefore, that the provisions of the

Limitation Act 1971 do not apply to proceedings in a Regional Conciliation Board

under the Security of Employment Act, cap 574. It would follows that the F Act

having fixed the time within which a reference may be made to the Conciliation

Board is deficient in not providing for a means of obtaining enlargement of time in

case of a delay for which there is sufficient cause.

Was the Conciliation Board entitled to disregard the fact that the reference was timebarred?

I think G that once the law puts a time limit to a cause of action, such action

cannot be accepted and adjudicated upon after the limitation period has expired. The

bar of time cannot be waived so that even if the party for the opposite side desists

from raising limitation as a defence the court or tribunal before which the action is

brought has no option but to dismiss it. I think, therefore, that the H Conciliation

Board acted ultra vires when it heard and decided on the reference after the time

provided by law had expired. Perhaps the legislature should revisit the Act to provide

for a procedure for seeking and obtaining extension of time.

The question I have now to consider is whether I should quash the Board's award. I

1994 TLR p38

MROSO J

A The orders of certiorari and mandamus, among other prerogative orders, are

discretionary and this court may refuse to grant them even where the right has been

established.

Traditionally the order of certiorari was directed against judicial or quasi-judicial acts

only. But, as B was held in Assistant Registrar of Buildings v Fredrick G Kibwana (1),

Mustafa JA said -

`An order for certiorari would lie from the High Court to an inferior court or

tribunal of a judicial, quasi-judicial or even an administrative nature. The body would

be a statutory or some sort of such authority such as a licensing or C municipal or

disciplinary body. It would be a body of person or persons having legal authority to

determine questions affecting the rights of subjects.'

A Regional (Labour) Conciliation Board is a quasi-judicial body and would be subject

to the D supervisory power of the High Court.

As Mustafa JA also said in the case cited (supra) -

`If such a body acts in excess of jurisdiction or fails to observe the rules of

natural justice or there is a palpable error E on the face of it, then an order would

issue.'

I think that in disregarding the fact that the reference was time-barred, the Board had

committed a palpable error which went to jurisdiction.

F It has been argued by Counsel for the first respondent that the applicant company

itself disregarded procedural requirements in the manner it proceeded to dismiss the

second respondent and, therefore, that this court should not exercise its discretion to

grant the orders for which it applied. I accept this argument in part. I shall not order

payment of costs to the applicant. But I shall G grant the orders of certiorari and

mandamus by ordering the proceedings in the Conciliation Board to be brought up

and to be quashed. I have come to this conclusion because I am aware of a growing

trend in this country by various authorities to disregard legal requirements which are

thought to be inconvenient or inexpedient.

H Although it may have been thought benevolent for the Board to disregard the

question of time limitation, that was in any case bad discipline and I think courts of

law should not give blessing to such a trend. The orders shall issue as prayed, and

there will be no order for costs.

1994 TLR p39

A