ITIKA KETTA MWAKISAMBWE v MARA COOPERATIVE UNION (1984) LTD 1993 TLR 206 (CA)

 ITIKA KETTA MWAKISAMBWE v MARA COOPERATIVE UNION (1984) LTD 1993 TLR 206 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Kisanga JJA, Mnzavas JJA and Mfalila JJA

B CIVIL APPEAL NO. 24 OF 1993

30 August, 1993

C (From the Ruling of the High Court of Tanzania at Mwanza, Masanche, J.)

Flynote

Labour Law - Summary dismissal - Jurisdiction of the courts in cases of summary

dismissal - Security of Employment Act, Cap 574.

D Constitutional Law - Basic rights enshrined in the Constitution - The right to seek

redress in court and ouster of court's jurisdiction - Section 28 of the Security of

Employment Act and article 30 of the Constitution.

-Headnote

E The appellant was summarily dismissed from employment by the respondent. He

filed a suit in the High Court to contest the dismissal. The respondent did not file a

written statement of defence but the High Court struck out the suit for want of

jurisdiction in terms of s 28 of the Security of Employment Act (Cap 574). On appeal

the appellant raised the question whether s 28 of the Act was constitutional.

F Held: (i) A claim that a basic right is violated is triable in the first instance by

the High Court, not the Court of Appeal;

(ii) As the appellant was unrepresented, the question of the jurisdiction of

the High Court in matters of summary dismissal took him unawares, making it

impossible for him to answer it properly; the High Court thus struck out the suit

without taking into account the appellant's G real answer to the question.

(iii) The appellant should be given an opportunity to address the High

Court on the issue of constitutionality of the ouster of jurisdiction of the High Court.

Case Information

H Order accordingly.

No cases referred to.

Dyabusha, for the respondent.

[zJDz]Judgment

Kisanga, J.A., delivered the following order of the court:

I The appellant was summarily dismissed from employment by the respondent, The

Mara Cooperative Union, his employer. He filed a

1993 TLR p207

KISANGA JA

suit in the High Court against such summary dismissal. The respondent Union did not

file its written A statement of defence in time. Whereupon the appellant applied for

an ex-parte proof of his claim which was duly granted. On the day set for the ex-parte

proof, however, the presiding Judge struck out the suit for want of jurisdiction in

terms of s 28 of the Security of Employment Act (cap 574) B which ousts the

jurisdiction of the court in matters of summary dismissal. The appellant was aggrieved

by that decision, hence this appeal.

The appellant appeared and conducted the appeal in person while the respondent

Union was represented by Mr Dyabusha, learned advocate. In his memorandum of

appeal and his written C submissions, the appellant raises the issue of

constitutionality of s 28 of the Security of Employment Act which, as it were,

prevents him from knocking on the door of the High Court to have his grievance

redressed. He says that the s violates his basic right under article 30(3) of the

Constitution D of the United Republic of Tanzania.

Thus it becomes obvious that the appellant is alleging a violation of a basic right.

While such a claim is triable by the High Court in the first instance, the appellant is

raising it for the first time in this appeal. This Court has no competence to deal with

the matter as a court of first instance. E

On the day the appellant came to court for ex-parte proof of his case, the Trial Judge

asked him if the Court had jurisdiction over the matter in view of the Security of

Employment Act. Obviously the appellant was taken unawares and the only answer

he could give was that he was advised by a F magistrate and the labour officer that

he could do so. Whereupon the learned Judge stated that he was going to strike out

the case, and immediately adjourned the matter for this purpose. It is in the course of

appealing against the decision to strike out his case that the appellant has raised the

issue G of violation of his basic rights.

As stated before, the appellant was taken awares. He never expected to be questioned

by the Judge on the issue of jurisdiction, and so he was least prepared for it. Worse

still, he was a layman who was in no position to avail himself of any legal counsel

immediately to answer the Judge's question in H court. We think that had he been

given notice or sufficient notice of the issue put to him by the Trial Judge, he would

have come up with an answer which raises the issue of the constitutionality of s 28 of

the Security of Employment Act, as indeed he has done in this appeal.

So that as the matter stands now, the Judge's ruling cannot be I

1993 TLR p208

A said to have taken into account the appellant's real answer to the question put to

him.

In the circumstances we think that the appellant should be afforded the opportunity

to respond fully in the High Court to the issue of ouster of jurisdiction of the court in

matters of summary dismissal. B Consequently, the ruling of the High Court is set

aside. The matter is sent back to the High Court with a direction to hear the appellant

on the issue of ouster of jurisdiction of the court and, in the process determine the

constitutionality or otherwise of s 28 of the Security of Employment Act which C

sanctions such ouster of Court's jurisdiction. Any party who is dissatisfied with the

decision of the High Court on that issue should be at liberty to appeal to this Court.

1993 TLR p208

E