YUASA BATTERY (EA) LTD v CONCILIATION BOARD OF DSM AND OTHERS 1996 TLR 367 (HC)

 

YUASA BATTERY (EA) LTD v CONCILIATION BOARD OF DSM AND OTHERS 1996 TLR 367 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Kaji J

C

D

MISC CIVIL CAUSE 32 OF 1996

26 August 1996

Flynote

Employment law - Conciliation Board - Application for leave to apply for order of

certiorari to E quash decision of and for extension of time in order to do so and for

stay of decision of Board - Delay not deliberate nor negligent - Prima facie case made

out - In interests of industrial relations that order be made - Order granted

-Headnote

The applicant applied for orders: extending the time within which leave to apply for

an F order of certiorari to quash a decision of a conciliation board had to be made;

for leave to apply for such an order; and for an order staying the execution of the

decision of the conciliation board.

Held:

(i) The applicant's delay had been neither deliberate nor negligent but had

in fact G been motivated by a desire to exhaust all available remedies.

(ii) The applicant had established a prima facie case for relief.

(iii) If execution were not stayed the industrial relations at the work place

would be damaged irreparably. H

Case Information

Applications granted.

Cases referred to:

1. R v Hillingdon London Borough, ex p Royco Homes Ltd [1974] 2 All

ER 643 I

2. R v Paddington Valuation Officer ex p Peachey Property Corp Ltd

[1965] 2 All ER 836

1996 TLR p368

[zJDz]Judgment

Kaji, J:

This is an application by the applicant Yuasa Battery (EA) Ltd for the following A

orders/reliefs:

(i) That time within which to apply for leave to apply for an order of

certiorari to B remove into this court and quash the decision of the Conciliation

Board of Dar es Salaam made on 28 February 1994 be extended by enough time as

would enable the applicant to make such an application.

(ii) That subject to extension of time being granted as prayed in item (i)

above, C leave be granted to the applicant to apply to this court for an order of

certiorari to remove into this court and quash the decision of the Conciliation Board

of Dar es Salaam made on 28 February 1994 in the matter involving Eliakunda

Mbonea, Said A Pazi and Halima M Selemani as complainant and Yuasa D Battery

(EA) Ltd as the respondents as well as the decision made on 16 February 1995 by the

Labour Commissioner on a reference to him by Yuasa Battery (EA) Ltd against the

aforesaid decision of the Conciliation Board.

(iii) That the execution of the decision of the Conciliation Board of Dar es

Salaam E made on 28 February 1994 as well as that of the Labour Commissioner

made on 16 February 1995 in the reference giving rise to this cause be stayed pending

the determination of the application for an order of certiorari to remove into this

court and quash the said decisions. F

It has been made under s 2(2) of the Judicature and Application of Laws Ordinance

Cap 453, s 17(2) of the Law Reform (Fatal Accidents and Miscellaneous Provisions)

Cap 360, as added by the Law Reform (Fatal Accidents and Miscellaneous Provisions)

G Ordinance (Amendment) Act, 1968 and s 14(1) of the Law of Limitation Act 10 of

1971, and all other enabling provisions of law.

Upon perusing the affidavit deponed by Mr Juma Ibrahim Nzwalia who is the

Assistant General Manager of the applicant company, and upon perusing the written

submission of the applicant's learned counsel Mr Kisusi have been quite satisfied that

the applicant's H delay was neither deliberate nor through negligence but that the

applicant was first trying to exhaust all available remedies before resorting to the

discretionary remedy of a prerogative order of certiorari. This was in line with the

principle laid down in the cases of I R v Hillingdon London Borough (1) and R v

Paddington Valuation Officer (2).

1996 TLR p369

KAJI J

In view of this I hold that the applicant's delay was with sufficient cause. A

For that reason I allow the applicant's first prayer.

As far as the second prayer is concerned, after perusing the written submission by the

applicant's learned counsel I have been quite satisfied that the applicant has

established B a prima facie case for leave to apply for an order of certiorari.

In view of this leave is granted for applicant to apply for an order of certiorari to

remove into this court the decision of the Dar es Salaam Conciliation Board dated 28

February 1994 and the decision of the Labour Commissioner dated 16 February 1995

for the C purposes of the said decisions to be quashed.

Also after perusing Mr Nzwalla's affidavit especially para 14 together with the written

submission of the learned counsel for the applicant I have been quite satisfied that if

execution is not stayed the industrial relations at the place of work is likely going to

be D damaged irreparably as such execution would mean reinstating the three

employees thereby imposing upon the parties a master-servant relationship when

they are still fighting fiercely in a legal battle. The industrial harmony and sound

management will very E likely be jeopardised. For that reason I allow the

application for stay of execution pending determination of the applicant's application

for the order of certiorari.

The applicant to file the necessary papers within 14 days from the date of delivery of

this ruling. F

1996 TLR p370

A