MANAGEMENT OF HOTEL AFRICANA v JUMUIYA YA WAFANYAKAZI TANZANIA (JUWATA) 1988 TLR 105 (CA)

 MANAGEMENT OF HOTEL AFRICANA v JUMUIYA YA WAFANYAKAZI TANZANIA (JUWATA) 1988 TLR 105 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Makame JJA, Kisanga JJA and Omar JJA

13 July, 1988 B

Flynote

Labour Law - Permanent Labour Tribunal - Jurisdiction - Trade dispute referred to it

under wrong provision of the law - Whether dispute properly before Tribunal -

Jurisdiction of Tribunal. C

-Headnote

An alleged trade dispute between Hotel Africana and Juwata was referred to the

Permanent Labour Tribunal by the Minister purporting to act under section 9A (1) of

the Permanent Labour Tribunal Act, 1967 as amended by Act No. 18 of 1977. The

Tribunal admitted that the reference was made to it by the Minister under the wrong

D provision of the law. It nevertheless decided that it had jurisdiction to inquire into

the dispute. The management of Hotel Africana appealed to the High Court

challenging the purported jurisdiction of the Tribunal. The appellate court observed

that the dispute was referred to the Tribunal by the Minister under the wrong

provision of the law, i.e., E section 9A (1) of the Permanent Labour Tribunal Act.

The High Court judge, nevertheless, decided that the Tribunal had jurisdiction to

inquire into the dispute because he said the reference was made under section 4(4) of

the Permanent Labour Tribunal Act. On appeal against the decision of the High Court

the Court of appeal F considered whether or not the Tribunal had jurisdiction.

Held: (i) The Minister was wrongly advised to refer the dispute to the Tribunal under

section 9A(1) and that he was not legally competent to do so; G

(ii) no reference to the Tribunal was made by the Minister under section 4(4)

either, because the necessary pre-requisites under it were not complied with;

(iii) what was taken to the Tribunal was as it were, a nothing and the Tribunal

H had no jurisdiction to enquire into what was not there. The King v Postmaster

General ex parte Carmichael [1928] K.B. 291 followed.

Case Information

Appeal allowed. I

1988 TLR p106

MAKAME JJA, KISANGA JJA AND OMAR JJA

Cases referred to. A

1. Anisminic Ltd. v Foreign Compensation Commission and Another

[1969] 2 WLR 163.

2. The King v Postmaster General Ex parte Carmichael [1928] 1KB 291.

Fimbo for the Appellant B

Kisusi for the Reppondent

[zJDz]Judgment

Makame, Kisanga and Omar, JJ.A.: There was an alleged trade dispute between the C

two parties in this appeal: the Management of Hotel Africana on the one hand, and

Jumuiya ya Wafanyakazi wa Tanzania on behalf of some 225 employees of that hotel

on the other. The alleged dispute was taken to the Permanent Labour Tribunal for

inquiry D and at the hearing there the Management of Hotel Africana was

represented by Mr. Lakha, learned advocate, whereas Jumuiya ya Wafanyakazi wa

Tanzania was represented by Mr. Kazoka. So as to facilitate easy reference we shall

hereinafter refer to the respective parties simply as Hotel Africana and Juwata.

Mr. Lakha at the Tribunal took three preliminary issues, urging that the matter

should not E be heard there. One of the issues Mr. Lakha raised, and which was one

relevant in this present appeal, was that the dispute was not properly before the

Tribunal because a wrong provision of the law was used, as a result of which the

matter had not been validly referred to the Tribunal: the Tribunal was therefore

without jurisdiction.

At the end of the day, after considering the rival arguments, the Tribunal reached the

F conclusion that it did have jurisdiction.

Dissatisfied with that decision, Hotel Africana sought, and was granted, leave to apply

for orders of certiorari and mandamus to remove into the High Court, and quash, the

G aforesaid decision of the Permanent Labour Tribunal. Again Hotel Africana was

advocated by Mr. Lakha, and this time Juwata was represented by Mr. Ismail, learned

counsel. The substantive application was heard by Msumi, J. who decided against

Hotel Africana. The learned High Court judge was satisfied, for reasons he gave and

which we H were urged to reconsider, that "the procedure adopted in referring the

dispute to the Tribunal is legally sustainable.... it is quite evident that this Application

cannot be sustained". Hotel Africana's application for the orders of certiorari and

mandamus was accordingly dismissed, with costs. I

Hotel Africana is now before us represented by Professor

1988 TLR p107

MAKAME JJA, KISANGA JJA AND OMAR JJA

Fimbo, learned advocate. They are appealing against the High Court decision by

Msumi, A J. and have filed six grounds of appeal. In the event, only two grounds,

Grounds 5 and 6, were argued: the first four grounds were abandoned and not

pursued. As before the High Court, the respondents were represented by Mr. Kisusi.

He is resisting the appeal. B

Let us first clear the desks: What is the position in the matter so far; and exactly what

is the appeal before this Court about? The position is that the intended inquiry by the

Permanent Labour Tribunal has not yet taken off. Hotel Africana have twice

unsuccessfully challenged the Tribunal's power to conduct the inquiry, and they are

now C urging this Court to find that the two fora below erred in saying that the

dispute was properly and validly before the Tribunal and so it had jurisdiction to

inquire into it.

As Msumi, J. has correctly remarked, there are several ways of referring matters to

the Permanent Labour Tribunal. We wish to add that the different modes cater for

different D situations and are not necessarily designed to achieve identical goals.

They have different destinations, as Prof. Fimbo observed.

For our purpose we need only confine ourselves to sections 4 and 9 of the Permanent

E Labour Tribunal Act because the decisions below really hinged on these two

sections.

On 13th July, 1987, the Labour Commissioner wrote a letter to the Minister for

Labour, copied to Juwata, Hotel Africana and the Association of Tanzanian

Employers, briefing him on what he reckoned was a trade dispute between Hotel

Africana and Juwata. The F letter went on:

Baada ya mazungumzo hayo haukutokea muafaka wowote kati ya pande hizi

mbili. Kwa hali hiyo, kwa misingi ya kifungu cha 9A cha Sheria ya Mahakama ya Kazi

ninahisi kuwa huu ni H mgogoro wa kikazi unaofaa uchunguzwe na hatimae nawe

utoe uamuzi wa mwisho. Hivyo nawasilisha taarifa hii kwako ili ukiridhika uiagize

Mahakama ya Kazi ifanye uchunguzi kwa kadri utakavyoona inafaa.

The Minister for Labour responded on the morrow by writing to the Chairman of the

Permanent Labour Tribunal, copy to Hotel Africana, Juwata and others. (but not to

the Labour Commissioner). In that letter the Minister made reference to the letter

from the Labour Commissioner and said, inter alia: I

1988 TLR p108

MAKAME JJA, KISANGA JJA AND OMAR JJA

Kwa mujibu wa kifungu cha 9A(1) cha Sheria ya Mahakama ya Kazi 1967

ninatoa idhini kwa A Mahakama ichunguze:

(a) Kama utawala wa hoteli Africana ulikuwa umewaachisha wafanyakazi

kwa kufuata taratibu na kwa sababu za misingi za kisheria.

(b )... B

(c) ...

Mr. Lakha's submision to the Tribunal was that Section 9A(1) did not empower the

Minister himself to refer a trade dispute to the Tribunal. We think it is pertinent to C

reproduce that section at this juncture:

Section 9A(1), introduced in 1977 by section 4 of Act No. 13 of 1977 provides:

Subject to subsection (2) where any trade dispute exists or is apprehended, the

Labour D Commissioner may inquire into the causes and circumstances of the trade

dispute and, with the approval of the Minister, refer any matters appearing to him to

be connected with or relevant to that trade dispute to the Tribunal and the Tribunal

shall inquire into the matters E referred to it and report on them to the Minister.

When the Tribunal submits its report to the Minister the latter "shall make a decision

in relation to the matters contained in the report and submit to the Tribunal the said

decision F and the Tribunal shall register the same as an award."

Now, what did the Tribunal say about Mr. Lakha's submission was: G

nzito na murua kabisa kisheria. Mahakama moja kwa moja imetosheka

kwamba uwezo wa Waziri wa Kazi ni wa kumwezesha kutoa idhini (approval) kwa

Kamishna wa Kazi. Kwa kuwa Waziri alitoa maagizo kwa Mahakama kuchunguza

mgogoro Wakili Lakha ametoa hoja H kubwa kwamba basi hakuna mgogoro mbele

ya Mahakama ambao unaweza kushughulikia,. Mahakama imetazama hoja hizi na

kwa unyenyekevu kabisa, ni lazima Mahakama itie hoja zote maanani.

Having said the foregoing, the Tribunal went on to ask itself whether the action of

the I Minister was prejudicial. The Tribunal

1988 TLR p109

MAKAME JJA, KISANGA JJA AND OMAR JJA

was satisfied that the error was merely procedural - what the Minister did was to A

approve: it was, however, the Labour Commissioner who forwarded the file to the

Tribunal.

The Tribunal, however, went on to warn: "Utaratibu huo sasa ukome, sheria ifuatwe."

One may be tempted to interject here and ask, what if the practice is not stopped? B

We felt it would help to appreciate the issue better if we explained the stand the

Tribunal took over the matter, as indicated above. It is against that background that

Msumi, J.'s decision would be fully understood.

Msumi, J. was loud and clear regarding the Minister's action. In the learned judge's

view C "The wording of this subsection is too clear to require interpolation. To

constitute a valid reference before the Tribunal, the matter must be referred by the

Labour Commissioner and not the Minister. The role of the Minister is to give fiat

that the matter should be referred to the Tribunal." Msumi, J. went on: D

In this letter, which is addressed to the Chairman of the Tribunal, the Minister

is, in no uncertain terms, referring the matter to the Tribunal for determination. This

fact cannot be E clouded by the eleventh hour attempt by the Labour Commissioner

to swear an affidavit that he was the one who referred the matter to the Tribunal ...

And unless the Tribunal is properly seized with the matter in dispute it cannot

exercise jurisdiction. In this case, so long as the F matter was referred by the

Minister who purportedly acted under the provision of section 9A(1) of the Act there

was nothing before the Tribunal for determination.

Having made these observations, however, the learned High Court judge went on to

G consider whether the Minister in fact referred the matter to the Tribunal under

section 9A(1) of the Act.

His answer to this question was in the negative. He found, by some process of

reasoning, that the Minister in fact acted under section 4(4)(a) of the Act. We say 'by

H some process of reasoning' by design, because as it is clear, the Minister himself

said, and in so many words, that he was acting "Kwa mujibu wa Kifungu 9A(1)...". The

finding by Msumi, J. therefore implies taking away the specific words of the Minister

and putting in the Minister's mouth, as it were, section 4(4)(a). The said subsection

goes thus: I

1988 TLR p110

MAKAME JJA, KISANGA JJA AND OMAR JJA

Notwithstanding the provisions of subsection (2) and subject to the provisions

of section 36, A where a trade dispute has been reported to the Labour

Commissioner in accordance with subsection (1) and both the parties to the dispute

apply in writing for the dispute to be referred B to the Tribunal for settlement, or

where the Labour Commissioner, after consultation with parties to the dispute, is of

the opinion that the dispute should be referred to the Tribunal for settlement without

any conciliatory measures being first taken in respect thereof, he shall C report the

dispute to the Minister, and the Minister shall within twenty-one days from the date

when the dispute was reported to him either:

(a)refer the dispute to the Tribunal for settlement, or

(b)refer the dispute back to the Labour Commissioner with a direction to

proceed in D accordance with subsection (2); provided, etc.

As aforesaid, Msumi, J. found that the Minister referred the matter under section E

4(4)(a). He also found propriety in the Minister's action. The effect of this was, as it

were, to save the day for Juwata, to say that the dispute was properly before the

Tribunal, which therefore had the power to hear the matter. In the result Hotel

Africana's application for the orders of certiorari and mandamus was dismissed, hence

this appeal before us. F

As it can be seen therefore the Tribunal took the view in essence, that the reference

was under section 9A(1) but that no harm was done - it was only a procedural error,

so the Tribunal was empowered to entertain the matter; whereas the High Court

found that the G Tribunal could not handle the dispute if the reference by the

Minister was under section 9A(1), but that in this case the Tribunal had jurisdiction,

albeit on a different score, that is, the reference was not under 9A(1) but rather under

section 4(4)a.

Prof. Fimbo has invited us to go along with Msumi, J. to the extent of holding that a

H reference under section 9A(1) can only be done by the Labour Commissioner and

that if it was done by the Minister himself then the purported reference was invalid,

with the consequence that the Tribunal was not clothed with the necessary

jurisdiction. Learned advocate for Hotel Africana has further urged us to say that

Msumi, J. erred in moving I from the correct proposition above and asserting that

the Minister was acting under section

1988 TLR p111

MAKAME JJA, KISANGA JJA AND OMAR JJA

4(4)(a). He also submitted that in any event it was an error to hold in the

circumstances A that the provisions of the said section 4(4)(a) were applicable. Prof.

Fimbo also invited us to say that there was no evidence from which the High Court

could properly hold that there was a report by the workers, in writing, to the Labour

Commissioner. The significance of this last complaint by Prof. Fimbo is that the

requirement of a report B in writing is one of the pre-requisites for activating section

4(4).

In his address to us Mr. Kisusi learned advocate for Juwata sought to support the High

Court finding that the reference was indeed by the Minister but it was under section

4 C and not under section 9A(1). In answer to Prof. Fimbo's complaint that under

section 4(4) there must be a report to the Labour Commissioner, and in writing, and

that there was no evidence that such a report was made, Mr. Kisusi conceded that

such written report is required but he submitted that such a report was not

mandatory. The notice in D writing was to be by the Secretary General of Juwata

but, according to Mr. Kisusi, the requirement merely enables the Secretary General to

make the report in writing: The word may does not connote the imposition of a duty

to make the written report so the absence of such a report cannot be of any

consequence. Mr. Kisusi further submitted E that if it is held that a written notice

was necessary Hotel Africana has not proved that such a notice was not there or that

if it was there, that it was not in writing. Mr. Kisusi also argued that in the event that

it is held that under section 4(4) the Labour Commissioner must expressly indicate his

opinion such failure was not fatal. For good F measure Mr. Kisusi further argued

that, in any event, the Permanent Labour Tribunal Act is silent as to the

consequences of such failures as Prof. Fimbo has pointed out, which according to Mr.

Kisusi were merely procedural, so the failures are 'harmless' and have not occasioned

'substantial prejudice'. G

We were treated to formidable lists of authorities, for which we are grateful to both

learned counsel. Some of the authorities made very elementary points or enunciated

very obvious principles. We do not propose to detain ourselves with some of these. H

We propose to take another look at section 4(4) and examine the learned argument

spent on it. Msumi, J.'s view was, as aforesaid, that the Minister acted in accordance

with section 4(4), and now see how he gauges the Minister's action within the said

sub-section. Regarding the requirement of a written notice to the Labour

Commissioner, I the learned judge appreciated that "admittedly there

1988 TLR p112

MAKAME JJA, KISANGA JJA AND OMAR JJA

is no evidence to show how the Labour Commissioner received the information and

A from whom" but he went on to assert that it is more likely than not that it was the

employees through Juwata who made the report. Assuming that that was correct

there was another hurdle the learned judge had to jump and it is this: the report had

to be in B writing. This is how the learned judge managed the task. he said "And

since the report was made by Juwata, the same must have been in writing." We wish

to confess that we find this reasoning rather acrobatic. Quite obviously Juwata makes

various reports to various people and not all such reports are in writing. Why must

this one, if there was C one, have been in writing? It was required to be in writing

but that is long way from saying it must have been in writing. A further probe into

section 4(4) is necessary. It is another pre-requisite that both parties to such dispute

apply in writing for the dispute to be referred to the Tribunal for settlement unless,

on his own, the Labour Commissioner, D after consultation with the parties to the

dispute, is of the opinion that the matter should be referred to the Tribunal for

settlement without conciliatory measure being taken. In that case he shall report the

dispute to the Minister who may do one of the two things - under section 4(4)(a) he

may refer the dispute to the Tribunal for settlement, E which is what Msumi, J. says

the Minister did, and which view is supported by Mr. Kisusi.

We are not satisfied that the various pre-requisites under section 4(4) were complied

with. We think they have to be complied with and that they are there for some

purpose. For example, the parties may not wish to go to the Permanent Labour

Tribunal for F settlement. They may for example prefer to have a Labour Officer to

try and effect a conciliation under section 4(2), and they, or one of them, can

effectively bar recourse to the Permanent Labour Tribunal under section 4(4). Under

section 4(2) incidentally the G Labour Commissioner may (with the prior approval

of the Minister) tell the parties to go back to the table for negotiation and settlement.

Yet another example: it may be more advantageous from a party's point of view to

have his dispute proceeded with under section 9A(1), where the Tribunal would only

inquire and report back to the Minister H who would make a decision to be

registered as an award with the Tribunal. These different avenues are neither empty

husks nor sheer formalities. They are variously designed to effect the settlement of a

dispute and each avenue leads to its own destination and consequences.

With great respect, we are not satisfied that the various necessary pre-conditions

were I satisfied under section 4(4). And for

1988 TLR p113

MAKAME JJA, KISANGA JJA AND OMAR JJA

reasons we have attempted to show, we are of the view that those pre-conditions are

A indeed necessary pre-requisites and not useless procedure. Failure to fulfil them is

fatal to the process. In the event the Tribunal would have no jurisdiction to inquire

into the dispute and such exercise by it would have been a nullity - See Anisminic

Ltd. v Foreign Compensation Commission and Another [1969]2 WLR 163. B

Our ultimate decision does not depend on only what we have just said. We still have

to answer the question as to whether the Minister's action was under section 4(4) or

under section 9A(1). Of course, as indicated, the parties hold opposite views. Juwata's

stand C is that it was under section 4(4) which view we are unable to sustain.

We have to turn to the other suggested alternative - that is that the Minister acted

under section 9A(1). It is clear to us that for the reference to be valid it must be by the

Labour Commissioner with the approval of the Minister. When the Tribunal has

inquired into the D matter it reports back to the Minister who then makes a

decision, unlike under section 4(4) where the reference is for a settlement by the

Tribunal which then itself makes an award. In his letter to the Minister the Labour

Commissioner clearly advised the Minister "uiagize Mahakama ya Kazi ifanye

uchunguzi kwa kadri utakavyoona inafaa" so E that the Minister may ultimately

decide. The Permanent Labour Tribunal found the reference by the Minister

improper, whatever the Tribunal preferred to call the action, only that it did not

cause prejudice. Msumi, J. found it clearly wrong for the Minister to purport to act

under section 9A(1), only that he found that the Minister acted under a F different

section, section 4(4). Before Msumi, J., Mr. Kisusi had argued that the reference was

made by the Labour Commissioner or that if it was by the Minister, then the Minister

was acting as a delegate of the Labour Commissioner. We think the latter limb of this

submission was scraping the barrel of arguments and that it is clearly G untenable.

The Labour Commissioner was not empowered to delegate, he did not say he was

delegating, and it would have been quite awkward and suprising if he said he was.

How the letter of the Minister reached the Tribunal and whether or not the whole

Ministerial/Departmental File was in fact physically taken to the offices of the

Tribunal, is H neither here nor there, really. What is important, and clear to us, is

that the matter was bungled and we are not in a position to say, like the Tribunal in

effect did, it is wrong and don't repeat it next time, in the meantime we shall close

our eyes to the impropriety and I hear your problem. We do not think it is a mere

procedural error, arid of consequences. The

1988 TLR p114

Tribunal has power, it is vested with jurisdiction, only when a dispute is properly

before A it. If, before, it handled matters not properly taken to its door and no one

raised a voice, we can only say that now that some one has challenged the practice it

is proper that the matter be considered and adjudicated upon. We are of the

considered view that B the Minister was wrongly advised to refer the dispute to the

Tribunal under section 9A(1) and that he was not legally competent to do so. What

was therefore taken to the Tribunal was, as it were, a nothing and the Tribunal had

no jurisdiction to enquire into what was not there. It is not a question of mere

procedure, it is not a question of C 'substantial prejudice' to use Mr. Kisusi's

expression; it is a question of want of jurisdiction. The document must be by a person

designated to issue it. This was one of the points made in The King v Postmaster

General ex parte Carmichael [1928] 1KB 291.

Because of the foregoing we are satisfied that the Permanent Labour Tribunal erred in

D assuming jurisdiction and that the High Court ought to have granted the orders

prayed for. We therefore allow this appeal with costs, and accordingly quash the

finding by the Permanent Labour Tribunal that it had jurisdiction to hear what was

purportedly referred to it. There was no dispute properly before it neither under

section 4(4) nor under section 9A(1). E

Appeal allowed.

1988 TLR p114

F