JUMUIYA YA WAFANYAKAZI TANZANIA v KIWANDA CHA UCHAPISHAJI CHA TAIFA 1988 TLR 146 (CA)

JUMUIYA YA WAFANYAKAZI TANZANIA v KIWANDA CHA UCHAPISHAJI CHA TAIFA 1988 TLR 146 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Mustafa JJA, Makame JJA, Kisanga JJA, and Omar JJA

25th August 1988 B

Flynote

Labour law - Trade dispute - Permanent Labour Tribunal Act - Security of

Employment Act - How a trade dispute can reach the Permanent Labour Tribunal.

Precedent - Stare decisis - Per incuriam rule - Whether Pallangyo's case was decided

per C incuriam - Whether Pemanent Labour Tribunal and High Court are bound to

follow a dictum in Pallangyo's case - Whether the Court of Appeal has jurisdiction to

overrule its earlier decisions.

-Headnote

This matter arose out of trade dispute. It concerned the redundancy of 94 KIUTA D

employees who were JUWATA members. When the matter was referred to the

Parmanent Labour Tribunal, the Tribunal relying on the Court of Appeal decision in

the E case of Zambia Tanzania Road Service Ltd. v J.K. Pallangyo Civil Appeal No. 9

of 1982, held that it had no jurisdiction to entertain the dispute.

Being aggrieved JUWATA, unsuccessfully, appealed to the High Court applying for

orders of certiorari and mandamus. Aggrieved again, JUWATA appealed to the Court

of Appeal.

Held: (i) The decision in Pallangyo's case, in so far as it requires a trade dispute to be

F reported to a Concilliation Board before it is entertained by the Permanent Labour

Tribunal, and to the extent that it applies the provisions of section 40A of the Security

of Employment Act to the members of Management, was decided per incuriam; G

(ii) all courts and tribunals below the Court of Appeal are bound by decisions

of the Court regardless of their correctness;

(iii) the Court of Appeal should be free in both civil and criminal cases to

depart from such previous decisions when it appears right to it do so; H

(iv) circumstances of this case require us to exercise our unique jurisdiction in

favour of the appellants so that justice may be done. The rights of the parties in

Pallangyo's case are not altered by this decision. I

1988 TLR p147

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

Case Information

Appeal allowed. A

Cases referred to.

1. Zambia Tanzania Road Services Ltd. v J.K. Pallangyo Civil Appeal no. 9

of 1982.

2. Dodhia v National Grindlays Bank Ltd. & another [1970] E.A. 195 B

Kapinga and Tenga for the appellants

Rutagatina and Chenge for the 1st and 2nd respondents respectively C

[zJDz]Judgment

Nyalali, C.J., Mustafa, Makame, Kisanga, and Omar, JJ.A: This matter arose out of a

trade dispute which was referred to the Permanent Labour Tribunal by the Minister

responsible for labour matters under section 8 sub-section (1) of the Permanent

Labour Tribunal Act, 1967 on the 2nd May, 1986. The trade dispute concerns,

Jumuiya ya D Wafanyakazi Tanzania, commonly known by its acronym as

JUWATA, on one side, and the firm of Kiwanda cha Uchapishaji cha Taifa commonly

known by its acronym as KIUTA, on the other side. The trade dispute centres on the

redundancy of 94 E employees of KIUTA, who were also members of JUWATA.

When the matter came up for adjudication by the Tribunal on the 3rd September,

1986, a preliminary matter arose concerning the jurisdiction of the Tribunal to

entertain the trade dispute. Acting on the authority of a decision made by a bench of

three judges of this Court in the case of F Zambia/Tanzania Road Services Ltd. v J.K.

Pallangyo in Civil Appeal No. 9 of 1982 (unreported), the Tribunal held that it had no

jurisdiction to entertain the dispute on the ground that the matter had not been

previously referred to a conciliation board under the provisions of section 40A of the

Security Employment Act, 1964, Cap. 574 as amended G by the Labour Laws

(Miscellaneous Amendments) Act, 1975.

Predictably JUWATA was aggrieved by the refusal of the Tribunal to entertain the

dispute and it sought and obtained leave to apply for order of certiorari and

mandamus in the High Court where the Permanent Labour Tribunal was joined as

the second H respondent, whereas KIUTA appeared as the 1st respondent. On the

18th June, 1987 the High Court, Maina, J., dismissed the application on its merits.

JUWATA was further aggrieved by this decision of the High Court, hence this appeal

to this Court. In the proceedings before this Court, the Attorney-General was joined

as the 2nd respondent I instead of the Tribunal, whereas KIUTA remained as the 1st

1988 TLR p148

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

respondent. All the parties were legally represented before us. Messrs Kapinga and A

Tenga, learned advocates from the Legal Aid Committee of the Faculty of Law of the

University of Dar es Salaam, appeared for the appellants, whereas Mr. Rutagatina,

from the Tanzania Legal Corporation, appeared for the 1st respondent and Mr.

Chenge, B Principal State Attorney, represented the 2nd respondent.

From the proceedings in this Court, the following matters of law are not in dispute

between the parties. It is common ground that the relevant basis law applicable to the

matter before us is contained in the Permanent Labour Tribunal Act 1967 and the C

Security of Employment Act 1964, Cap. 574. The former Act concerns the settlement

of collective disputes between employees and their employer whereas the latter

concerns the settlement of non-collective disputes. The basic difference between the

two is that in D a collective dispute there are more than one employee acting in

concert and in conflict with their employer, whereas in the latter, a single employee

is in conflict with his employer. It is common ground also that decisions of the Court

of Appeal of Tanzania are binding upon any tribunal acting either under the

Permanent Labour Tribunal Act, 1967 or the Security of Employment Act, 1964 by

virtue of the common law doctrine of E precedent.

The appellants' case before this Court is contained in the memorandum of appeal and

the submissions made by learned advocates for the appellants in the course of the F

appeal. Three grounds of appeal were submitted by the appellants as follows:

1. The Hon. judge erred in law in holding that the judgment of this

Honourable Court in Zambia/Tanzania Road Services Ltd. v J.K. Pallangyo, civil

appeal No. 9 of 1982 (unreported) was not delivered per incuriam and G therefore

the Permanent Labour Tribunal was bound to follow it.

2.(i) the Hon. Judge erred in law in holding that section 40A of the Security

of Employment Act, Cap. 574 applied to trade disputes under section H 4(1) of the

Permanent Labour Tribunal Act 1967;

(ii) the Hon. judge erred in law in holding that reference of a trade dispute

to a conciliation board within 14 days under section 40A of the Security of I

Employment Act was

1988 TLR p149

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

a condition precedent to be fulfilled before the Permanent Labour A

Tribunal could hear and determine a trade dispute.

In elaborating these grounds of appeal, Mr. Kapinga, learned advocate, who dealt with

the second ground of appeal, and Mr. Tenga, learned advocate, who dealt with the

first B ground of appeal, submitted in effect that the Permanent Labour Tribunal Act

and the series of legislation that preceded it are separate and independent from

security of Employment Act and the series of legislation that preceded it. Mr. Kapinga

further submitted to the effect that this Court in Pallangyo's case erred in applying

the C provisions of section 40A of the Security of Employment Act to proceedings

under the Permanent Labour Tribunal Act 1967. By so doing, he argued, the court

appeared to amend the latter Act by incorporating into it provisions derived from the

Security of Employment Act. Mr. Tenga, who addressed us on the 1st ground of

appeal, submitted D also that the relevant rule in Pallangyo's case was decided by

this Court in ignorance of the existence of these two separate and independent legal

schemes for settlement of disputes between employees and their employers.

On the other hand, Mr. Rutagatina, learned advocate for the 1st respondent,

submitted E in effect that the court in Pallangyo's case was right in applying the

provisions of section 40A of the Security of Employment Act to proceedings under

the Permanent Labour Tribunal Act, by prescribing a specific period for reference of

trade disputes to the Permanent Labour Tribunal; thereby filling in a gap left open by

the legislature. F However, Mr. Chenge, learned Principal State Attorney for the 2nd

respondent, does not support this stand of the 1st Respondent and instead agrees with

the submissions made for the appellant on this point.

It is apparent that the dispute in this case centres on the correctness of the relevant

rule G in Pallangyo's case. The relevant rule appears in the following paragraph of

the judgment in that case:

Admittedly there are no provisions under the Permanent Labour Tribunal Act

relating to the H limitations of actions. But the view that claims brought under that

Act are not subject to limitation seems untenable. If that view were to be upheld, the

implication of it is that where an employee thinks that the termination of his services

is wrongful, he may delay lodging his I grievance for ten or twenty years or even for

an indefinite

1988 TLR p150

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

period. We think that is undesirable and would be objectionable. Such

employee must act A promptly in seeking to vindicate his rights. For purposes of

good and efficient management also, the employer should know of the final position

as soon as is practicable so that he can take other necessary steps, for example, to

consider filling the vacancy left by the employee in B question. Even assuming, as

Mr. Muccadam contends, that the respondent was in the management of the business

of his employer, we think that the provisions of section 40A of the Security of

Employment Act quoted above applied to him. C

The first specific issue that arises in this dispute is whether Pallangyo's case, in so far

as it concerns the rule quoted above, was decided per incuriam. The expression per

incuriam, according to Jolowit's Dictionary of English Law, 2nd Edition, means: D

"Through want of care. A decision or dictum of a judge which clearly is the result of

some oversight". The meaning of that expression is further stated by Sir Raymond

Evershed M.R. in the case of Morelle Ltd. v Wakeling [1955] (1) All E.R. at page 708

in the following words: E

As a general rule the only cases in which decisions should be held to have

been given per incuriam are those decisions given in ignorance or forgetfulness of

some inconsistent F statutory provision or some authority binding on the court

concerned, so that in such cases some part of the decision or some step in reasoning

on which it is based is found, on that account, to be demonstrably wrong. This

definition is not necessarily exhaustive, but cases not strictly within it which can

properly be held to have been decided per incuriam must in our G judgment,

consistently with the stare decisis rule, which is an essential feature of our law, be, in

the language of Lord Green, M.R., of the rarest occurrence.

Undoubtedly, the provisions of section 40A of the Security of Employment Act, 1964

H belong to the scheme for the settlement of non-collective disputes involving a

single employee in conflict with his employer. That scheme was introduced in this

country for the first time in 1924 under the Master and Native Servants Ordinance,

Cap.78, and I was subsequently continued by the Employment Ordinance Cap. 366

with effect from 1st February,

1988 TLR p151

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

1957, and was modified by the Security of Employment Act 1964 with effect from 1st

A May, 1965 (subsequently amended by the Labour Laws (Miscellaneous

Amendments) Act 1975) and by the Employment Ordinance (Amendment Act) 1969.

Essentially, prior to the Security of Employment Act, this scheme provided for the

settlement of B non-collective disputes by adjudication before a subordinate court.

Prior to the Employment Ordinance (Amendment) Act 1969, proceedings before such

subordinate court were basically criminal in nature. Under the amendment of 1969 a

subordinate court was vested with both criminal and civil jurisdiction which it could

exercise depending on the nature of a particular case (see sections 134 and 124A).

However, the C Security of Employment Act as amended by the Labour Laws

(Miscellaneous Amendment) Act 1975 ousted the jurisdiction of subordinate courts

from specified matters, which were transferred to the exclusive jurisdiction of

counciliation boards established under that Act. These specified matters were those

concerning summary D dismissal, deduction in wages by way of disciplinary action

and statutory compensation. Under the Security of Employment Act, an appeal from a

decision of a conciliation board in these specified matters lies to the Minister

responsible for labour matters and E his decision is final. Section 40A of the Act

prescribes a period of 14 days within which a dispute has to be referred by an

aggrieved employee to a conciliation board.

As for the scheme for settlement of collective disputes, it came into being for the first

time in 1947 under the Trade Disputes (Arbitration and Inquiry) Ordinance, 1947.

The F scheme was continued by the Trade Disputes (Arbitration and Settlement)

Ordinance with effect from 19th January, 1951 and by the Trade Disputes

(Settlement) Act 1962 Cap. 480, and, finally by the Permanent Labour Tribunal Act

1967.

Essentially, the scheme prescribes four methods for the settlement of collective

disputes. G Firstly, by conciliation before a labour officer (see sections 4(2) and 6 of

the Permanent Labour Tribunal Act 1967); secondly, by adjudication before a tribunal

(see sections 4(4) and 8 of the Permanent Labour Tribunal Act. Thirdly, by inquiry

and report of the Tribunal (see section 9 and 9A and 9B of the Permanent Labour

Tribunal H Act. Fourthly by Advice of the Tribunal (see section 10 of the Act).

These methods of settlement of collective disputes existed in all the relevant

legislation since 1947 except the fourth one which came into being in 1967. At no

stage in the history of this system I was a specific period prescribed for initiating a

trade dispute. The reason is obvious. A trade dispute

1988 TLR p152

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

comes into existence only when it is declared by referring the matter to the labour A

commissioner. Until such a reference is made, any conflict between employees and

their employer amounts to no more than an apprehended trade dispute capable of

being dealt with under the provisions of sections 9, 9A and 9B of the Permanent

Labour Tribunal Act, 1967. B

The Security of Employment Act, 1964 as amended by Act No. 45 of 1969 introduced

another feature into the scheme for settlement of non-collective disputes which did

not exist prior to 1964. This concerns categories of employees who are covered by the

C Security of Employment Act. Under the provisions of section 4 paragraph (e) of the

Act, any person who is considered by a labour officer to be a member of the

management of a business is not an employee for purposes of proceedings under the

Act. In Pallangyo's case the court overlooked this statutory position. For this reason

together D with the reasons given earlier we are satisfied that the decision in

Pallangyo's case in so far as it requires a trade dispute to be reported to a conciliation

board before it is entertained by the Permanent Labour Tribunal, and to the extent

that it applies the provisions of section 40A of the Security of Employment Act to

members of the management, was decided per incuriam. E

The second specific issue in the dispute is whether the Permanent Labour Tribunal

and the High Court are bound to follow the dictum in Pallangyo's case.

Notwithstanding what is stated in the first ground of appeal, both advocates for the

appellants agreed in F the course of the hearing of this appeal, that under the

common law doctrine of precedent, which is one of the pillars of the law of this land,

all courts and tribunals below this court, are bound by the decisions of the court,

regardless of their correctness. We have no doubt that this is a sound position which

is necessary for the Rule of Law. It G follows therefore that the Permanent Labour

Tribunal acted properly in refusing to entertain the trade dispute in the legal

circumstances prevailing at the time.

The third specific issue in this dispute is whether this court has jurisdiction to overrule

its earlier decisions. There is common ground between all the parties that this

court has such H jurisdiction in certain circumstances. The only dispute is whether

Pallangyo's case falls within those circumstances. We are in general agreement with

the parties on the question of jurisdiction for the following reasons. Historically this

Court is the successor I to the Court of Appeal of East Africa in respect of the United

Republic of Tanzania. The Court of Appeal of East Africa had jurisdiction to over rule

its

1988 TLR p153

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

earlier decisions within the scope stated in the case of Dodhia v National & Grindlays

A Bank Ltd. and another, [1970] E.A. p. 195 at pp. 198 to 200 as follows:

It is, I think, beyond dispute that since this Court became the final Court of

Appeal for the B sovereign countries of Kenya, Tanzania and Uganda no decision of

the Privy Council or of any English court or of any foreign court is binding on this

Court. Indeed, no such decision would be binding on any court in Kenya, Tanzania or

Uganda, unless it was a decidion of the Privy Council on an appeal from any of these

countries, though in so far as any such decision sets C out what is the English law,

the High Courts of Kenya, Tanzania and Uganda would normally accept such to be

the position and this Court would, I have no doubt, have regard to any decision of an

English court setting out what is the English law. It would, however, always D be a

matter for the courts of Kenya, Tanzania and Uganda to decide what is the law of

those countries. Even where English law is applied in any such country, its

application would be subject to such modifications as the circumstances of the

country and its inhabitants required; E and it would be for the court of such country

to determine what those modifications if any, would be in any particular case in order

to determine what is the law of such country

I accept that a system of law requires a considerable degree of certainty and

uniformity and F that such certainty and uniformity would not exist if the courts

were free to arrive at a decision without regard to any previous decision. I also accept

that subordinate courts are bound by the decisions of superior courts and that a

subordinate court of appeal should normally be bound by a previous decision of its

own. But there is a great difference between a final court of appeal G and a

subordinate court of appeal. If it is considered that a decision of a subordinate court of

appeal was wrong it would always be open to have it tested and if necessary rectified

in the final court of appeal. This would not be possible in the case of the decision of a

final court of H appeal. Thus, on the face of it, there is a need for great flexibility in

a final court of appeal than there is in any other court in the judicial hierarchy.

Further, the need for such flexibility is the greater and not the less in a developing

country, as there is a greater likelihood of rapid I changes in the customs, habits and

needs of its people,

1988 TLR p154

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

which changes should be reflected in the decisions of the court of appeal. It

should, moreover, A be borne in mind that too strict an adherence to the principle

of stare decisis would, in fact, defeat its object of creating certainty, as a final court of

appeal faced by a decision which was B unsuited to the present needs of the

community would seek to distinguish it. The results of distinguishing a decision when

there was no real difference results in uncertainty, an uncertainty which would not

exist if it were clearly stated that the old decision was no longer the law. It must also

be remembered that the Privy Council, when it was the final court of C appeal for

Kenya, Tanzania and Uganda, never considered itself bound by its previous decisions.

It would seem a retrograde step for this Court, now that it has taken over the

functions of a final court of appeal for these countries, to discard the flexibility

previously possessed by the final court of appeal and instead adopt a position of

rigidity. D

For these reasons I am satisfied that as a matter of judicial policy this Court as

the final Court of Appeal for Kenya, Tanzania and Uganda, while it would normally

regard a previous decision E of its own as binding, should be free in both civil and

criminal cases to depart from such a previous decision when it appears right to do so.

It will, of course, exercise this power only after careful consideration of the

consequences of doing so and the circumstances of the F particular case, but I would

not seek to lay down any more detailed guide to the circumstances in which such a

departure should take place as the matter would be best left to the discretion of the

Court at the time it was up for consideration.

That was the position of the Court of Appeal for East Africa on this point. Since the G

Court of Appeal of Tanzania is a successor of the former court, it stands in the same

position as its predecessor, unless the law establishing it expressly provided to the

contrary. A close scrutiny of the Constitution of the United Republic and the

Appellate H Jurisdiction Act, 1979 shows that the Court of Appeal of Tanzania has

been vested with more powers than its predecessor had. For instance, the Court of

Appeal of Tanzania has jurisdiction in constitutional matters whereas its predecessor

had none in so far as Tanzania was concerned. In short, the Court of Appeal of

Tanzania has inherited all the I jurisdiction vested in its predecessor and has in

1988 TLR p155

NYALALI CJ, MAKAME JJA, KISANGA JJA AND OMAR JJA

addition, been granted more. The Court thus has the jurisdiction stated in the

Dodhia's A case.

The fourth specific issue in the dispute is whether the decision in Pallangyo's case to

the extent that it was given per incuriam ought now to be over-ruled by this Court.

Mr. Rutagatina, learned advocate for the 1st respondent has submitted in effect that

this B Court should not over-rule that decision because such an action would disturb

the status quo. On the other hand, M/S Kapinga and Tenga, learned advocates for the

appellants, have urged this Court to over-rule the decision on the basis that the

existence of this precedent has paralysed the system for settlement of trade disputes.

Mr. Chenge, C learned Principal State Attorney for the 2nd respondent, is basically

in agreement with the stand of the appellants. In our considered opinion, we think

that so long as Pallangyo's case continues to exist as a precedent, there can be no trade

dispute referred to the Permanent Labour Tribunal. This is because, according to

Pallangyo's D case, every trade dispute must first be reported to a conciliation board.

But once such a reference is made, there can be no way of getting such a trade dispute

back to the Permanent Labour Tribunal. That path leads to the Minister responsible

for labour matters whose decision is final. In any case, as we have already

demonstrated, a E conciliation board has no jurisdiction over collective disputes. We

are aware that this present case is a test case which will set in motion the machinery

for settlement of a number of trade disputes which currently cannot be processed

either by the Permanent F Labour Tribunal or the conciliation boards, because of the

Pallangyo's decision. We are satisfied that the circumstances of this case require us to

exercise our unique jurisdiction in favour of the appellants so that justice may be

done. We are aware that such a decision in this case will not alter the rights of the

parties in the Pallangyo's case, G since the overall decision in that case to the effect

that the Permanent Labour Tribunal had no jurisdiction to entertain the trade dispute

in question, does not depend entirely on the rule given per incuriam, but depends also

on the finding that the trade dispute was not a collective one: it concerned a single

employee, that is, Mr. Pallangyo. Pallangyo's H case cannot therefore be reopened

before the Permanent Labour Tribunal as a result of our decision in this case.

In the final analysis therefore, we allow this appeal by setting aside the decision of the

High Court and the Permanent Labour Tribunal and directing the Permanent Labour

Tribunal to proceed I

1988 TLR p156

to hear the trade dispute declared by JUWATA on behalf of its 94 members, with the

A costs to the appellants.

Appeal allowed.

1988 TLR p156

B