East African Railways Corp. v. Anthony Sefu, H.C. Civ. App. 19-DSM-71, 15/9/72.

East African Railways Corp. v. Anthony Sefu, H.C. Civ. App. 19-DSM-71, 15/9/72.

Held:   (1) In the absence of clear and unambiguous language no statute shall be construed as to oust or restrict the jurisdiction of a Superior Court.

            (2) Superior Courts have an inherent jurisdiction to supervise the working of inferior courts or tribunals so that they may not act in excess of jurisdiction or without jurisdiction or contrary to law.

            (3) The jurisdiction of a Superior Court to correct errors made by an inferior tribunal acting within its jurisdiction may be ousted by the clear provisions of a statute.

            (4) Section 16 of the Public service Commission Act, 1962, laws of E.A.C.S.O. clearly ousts the jurisdiction of Superior Court to inquire into the validity of decisions taken by the East African Railways and Harbours Service Commission within its jurisdiction.

MWAKASENDO, AG. J. – The respondent in this case, ANTHONY SEFU, was first employed by the appellant Corporation (originally the East African Railway and Harbours Corporation as a foreman on 28^th June, 1950. in 1965 after attending several in training courses, he was promoted to the post of several in-training courses, he was promoted to the post of locomotive driver Grade NB. VA. At a salary of £303 per annum. In August or September 1967 he was suspended from duty by his authorized officer on account of being found drunk on duty and on failing to give a satisfactory explanation of his conduct to his superiors, he was eventually dismissed from service by the Corporation. Although according to the regulations the respondent had a right to appeal against the dismissal, and he was clearly so informed of his right respondent, for reasons best known to himself, never availed himself of this opportunity and as far as can be gathered from the records, no appeal had been lodged against the Corporation’s decision to dismiss him at the time when he decided to challenge his dismissal by civil suit for wrongful dismissal.

            One of the grounds of defence averred by the General Manager of the East African Railways Corporation was that the District Court was not seized up of jurisdiction to inquire into the dismissal from service of the respondent/plaintiff b the Railways and Harbours Service Commission. This averment was contained in paragraph 8 of the defendant’s Written Statement of Defence and it reads: “8. This written statement of Defence is filed without prejudice to the right of he defendant to contend which he will in fact contend that he Honourable Court is not seized up of jurisdiction to inquire into the question of determination of service of the Plaintiff as ordered by the said Commission.

            True to his promise, the defendant, as soon as the hearing of the suit started, raised an objection founded upon absence of jurisdiction of the court to hear the case. In support of his submissions on this point, Mr. Bishota, learned counsel for the defendant, cited the provisions of Section 16 of the Public Service Commission Act, 1962, Act No. 6 of 1962 of the Laws of the East African Common Services Organisation Acts and Subsidiary Legislation for 1962. Section 16 of the Public Service Commission Act, 1962 provides: “16. The question whether – (a) any Commission has validly performed any function vested in it by this Act; (b) any member of a commission or any other person or authority has validly performed any function of the Commission delegated to such member or other person or authority under this Act; or (c) any member of a commission or any other person or authority has validly performed any other function  in relation to the work of the commission or in relation to any such function as is referred to in the preceding sub-paragraph, shall not be inquired into in any court.” The Railways and Harbours Service Commission was constituted under section 5 of the Public Service Act, 1962 thus: “5. The Commission established by Article 40 of the Constitution for the Railways and Harbours Administration shall be known as the Railways and Harbours Service Commission.” And its functions are set out in Section 13 of the same Act, which provides: “13(1) Subject to the provisions of this Act, power to appoint persons to hold or act in offices in that part of the public service consisting of the East African Railway and Harbours Administration (including power to make appointments on promotion and transfer and to confirm appointments), to exercise disciplinary control over persons holding or acting in such offices and to remove from office persons so appointed is hereby vested in the Railways and Harbours Service Commission. (2) The power to appoint a person to hold or act in the office of General Manager (including an appointment on promotion or transfer) is hereby vested in the Authority acting after consultation with the Railways and Harbours Service Commission and the Secretary General.”

I have endeavored to set out in full all these provisions of the Public Service Commission Act 1962, because it is on the construction of these provisions that defendant’s main objection to jurisdiction really rests. It was contended on plaintiff’s behalf and the same arguments have been repeated here, that on the proper construction of the provisions of Section 16 of the Public Service Act, 1962, the jurisdiction of the court was not wholly ousted but in the words of the learned Resident Magistrate, “it was just limited”. And it was further contended by the plaintiff, with reference to the provisions of Section 16 of the Public Service Act, 1962, that the duty to decide whether any function vested in the Railways and Harbours Service Commission is validly performed was not that of the Commission but of the Courts. None too convincing a reason has been suggested for this contention but be that as it may, plaintiff’s contentions on this point apparently found favour with the learned Resident Magistrate and received unreserved approval in his ruling.

               I must at once confess my inability to comprehend fully the reasoning behind the learned Resident Magistrate ruling’s ruling. While he does make an attempt to refer to the operative words in Section 16 of the Public Service Act, 1962 – “the question of whether any commission has validly performed any function vested in it, shall

Not inquired into in any Court” – no attempt whatsoever is made to construe these words and to relate them to the objection by the defendant that the Court had no jurisdiction to inquire into the question of dismissal of the plaintiff. The Resident Magistrate’s ruling on the point is fairly comprehensive and may conveniently be set out in full:

            “Ruling: Counsel for the defendant, Mr. Bishota, has raised a preliminary point that this Court is not seized up of jurisdiction to inquire into the question of determination of the Plaintiff as ordered by the Railway Service Commission. He submitted that under Section 16 the Public Service Commission Act, Act 6 of 1962 the question of whether any commission has validly performed any function vested in it, shall not be inquired into in any Court.” He contended that, that expression ousts the jurisdiction of this Court.

            “Mr. Dave for the plaintiff argued that this Court has jurisdiction to inquire whether the Commission has ‘validly performed’ its functions. He said that the Commission cannot be its own judge to see if its functions are ‘valid’ at all he contended that if that were to be the effect of the legislation then there is a clear denial of natural justice, which this court is here to uphold. He further submitted that this Court is empowered in its inherent jurisdiction to adjudicate upon the matter where there has been a denial of natural justice to an individual.

            “In reply Mr. Bishota pointed out that the question of denial of justice does not arise where the legislation in clear terms ousts the jurisdiction of the Court.

            “It is a cannon rule of construction that any provision of law which imposes burdens on the private individual and restricts his rights of carrying on his lawful avocations must be strictly interpreted and complied with before his right can be restricted. Thus the question whether a statute precludes the jurisdiction of the Courts depends upon the words used and upon the clear construction to be placed upon those words: In Maxwell on the Interpretation of Statutes 10th Edn. 1 we have the following comment: ‘A statute is the will of a legislature and the fundamental rule of interpretation is that a statute is to be expounded according to the intent of hem that made it. If the words of the statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such cases best declaring the intention to the legislature. If there is one rule of construction for statutes, it is that you must not imply anything in them which is inconsistent with the words expressly used’.

            “On the principle enunciated above, the argument by Mr. Dave that this Court has jurisdiction to inquire whether the Commission ‘validly’ performed its functions is merited.

            “It has been recognised for a long time past, that Courts are empowered to look into the question whether the tribunal in question has not stepped outside the field of operation entrusted to it. In De Souza v. Tanga Town Council (1961) E.A. 386 the E.A.C.A. categorically stated that the Court may declare a tribunal’s decision a nullity if: (1) the tribunal did not follow the procedure laid down by a statute on arriving at a decision; (ii) breach of principles of natural justice; (iii) if the actions were not done in good faith. Otherwise if none of these errors have not been committed, the Court cannot substitute its judgment for that of an authority which has exercised a discretionary power, as the tribunal is entitled to decide a question wrongly as it is to decide it rightly.

            “Thus the Court’s jurisdiction is just limited but not completely ousted. I will hear both sides so that I can have the records and the explanation as to the manner or procedures adopted in dismissing the plaintiff. That will be record on the basis of which I shall decide if the tribunal went outside its ‘functions’ or violated the principles of natural justice etc. Then the purported decision of dismissal is no decision at all. It is a nullity.

            ‘To the extent I have described above, I hold that this Court has inherent jurisdiction to entertain the suit.” The defendant has appealed against this ruling to this Court.

            The only issue to be decided in this appeal is whether or not the Resident Magistrate’s Court was right in assuming jurisdiction, for the reasons set out in the ruling, to inquire into the validity of plaintiff’s dismissal from service by the East African Railways and Harbours Service Commission. In the course of this appeal the Court has had full opportunity to hear both Counsels speak in support of their respective submissions. I must thank them for the ability and clarity of their arguments and I would be less than fair if I were not to put on record the Court’s debt their industry and the many authorities that they have properly placed before the Court.

            It is, I think, a well established principle that no statute shall be so construed as to oust or restrict the jurisdiction of the Superior Courts, in the absence of clear and unambiguous language to that effect. Many modern statutes contain provisions which attempt to remove decisions of tribunals or Ministers from review by the courts by making these decisions “final” or “conclusive”. The use of such words was fully discussed in the case of R. v. Medical Appeal Tribunal ex. P. Gilmore (1957) I QB 574 at 583. Denning L. J. (as he then was) said: “The remedy by certiorari is never to be taken away by statute except by the most clear and explicit words. The word ‘final’ is not enough. That only means ‘without appeal’. It does not mean without recourse to certiorari. It makes the decision final on the facts, but not final on the law. Notwithstanding that he decision is by statute made ‘final ‘certiorari can still issue for excess of jurisdiction or for error of law on the face of the records”. And so have the Courts repeatedly held that they have an inherent jurisdiction to supervise the working of inferior course or tribunals so that they may not act in excess of jurisdiction or without jurisdiction or contrary to law. But this admitted power of the superior Courts to supervise inferior Courts or tribunals is necessarily delimited. As Lord Summer said of the superior Court’s supervisory jurisdiction in Rex. V. Nat Bell Liquors Ltd. (1922) 2 A.C.128 at a page 156: “Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the

Area of the inferior jurisdiction and the qualifications and condition of its exercise; the other is the observance of the law in the course of its exercise”.

            A statute setting up a tribunal may of course, in clear and precise words, debar any inquiry that may be necessary to decide whether the tribunal has acted within its authority or jurisdiction. Such a provision would operate to debar contentions that the tribunal while acting within its jurisdiction has come to wrong or erroneous conclusions. There would however, even in such a case, be no difficulty in pursuing and in adducing evidence in support of an allegation, for instance, that the members of the tribunal had never been appointed to act as such members or that those who had been appointed had by some irregular conduct disqualified themselves from membership of the tribunal. Further, it seems, there would be no difficulty in raising any matter that goes to the right or power of the tribunal to exercise the function or power vested upon it. What an ouster clause, such as it is claimed is contained in Section 16 of the Public Service Commission Act, 1962, does is to forbid any questioning of the correctness or validity of a decision or determination which it was within the area of jurisdiction of the tribunal to make. At this point it would, I think, be appropriate to quote from the speech of Lord Morris of Borth-y-Gest in the case of Anisminic v. Foreign Compensation Commission (1969) 2 WLR 163 at page 180. He said:

            “If a tribunal while acting within its jurisdiction makes an error of law which it reveals on the face of its recorded determination, then the Court, in the exercise of its supervisory function, may correct the error unless there is some provision preventing a review by a Court of law. It a particular issue is left to a tribunal to decide, the even where it is shown (in cases where it is possible to show) that in deciding the issue left to it the tribunal has come to a wrong conclusion, that does not involve that the tribunal has gone outside its jurisdiction. It follows that if any errors of law are made in deciding matters which are left to a tribunal for its decision such errors will be errors within jurisdiction. If issues of law as well as of fact are referred to a tribunal for its determination, then its determination cannot be asserted to be wrong if Parliament has enacted that the determination is not to be called in question in any court of law.” Again at page 181 the same learned noble lord observed in a similar vein: “If, therefore, a tribunal whole within the area of its jurisdiction committed some error of law and if such error was made apparent in the determination itself (or, as it is often expressed, on the face of the record then the superior Court could correct that error unless it was forbidden to do so. It would be so forbidden if the determination was ‘not to be called in question in any court of law’. If so forbidden it could not then even hear argument which suggested that error of law has been made. It could however still consider whether the determination was within ‘the area of the inferior jurisdiction.’

            Although the judgment of Lord Morris of Borth-y-Gest in the Anisminic case was one of the minority, there can be no doubt that his observations on the effect of “ouster jurisdiction clauses” are sound and correct and in my judgment, the same  principles ought to apply in considering the present appeal

            It will be noted in the instant case, that no suggestion of irregularity either of conduct or procedure on the part of the Railways and Harbours Service Commission were precisely alleged by the plaintiff in his plaint. He merely contented himself by making generalised allegations of wrongful dismissal, without more. He does not state how his dismissal was wrongful. He does not suggest that the Commission acted in contravention of any law or that it went against any of the procedure prescribed in the Second Schedule to the Act which the Commission is required to observe in the conduct of its business.

            Examination of the record abundantly shows that the plaintiff would have had no ground to complain in this respect. In accordance with the regulations the plaintiff was informed soon after his suspension the reasons thereof. He was required, again in accordance with the regulations, to give a satisfactory explanation of his conduct to his superiors within a given time. This he did but unfortunately his explanation was found inadequate and he was so informed. Thereafter the matter was referred to his superior officer at the Corporation’s Headquarters in Nairobi who instituted an inquiry of their own and who, on being satisfied that plaintiff’s conduct was of a very serious nature, to merit dismissal from the service, forwarded the results of their inquiries to the Commission together with their comments. The Commission on considering this report reached the decision to dismiss the plaintiff from the service with loss of all benefits. The decision of the Commission was communicated to him and plaintiff has not denied this. Even at this stage it was open to him to appeal against the decision but the plaintiff never chose to avail himself of this opportunity even though as late as November 19^th, 1968 he was advised through NUTA to appeal against the decision to the appropriate higher authority.

            It would however appear that plaintiff’s main grievance against his dismissal is that it was done or communicated to him by the District Mechanical Engineer and the letter of 6^th December, 1967 addressed to him by the District Mechanical Engineer, Dar es Salaam, would clearly give this impression. However, any misapprehension created by this letter were or should have been removed by letter dated 23^rd January, 1968 whereby the plaintiff was informed through NUTA: “I regret to have to advise you that it has not been possible for me to deal with your allegations on the case for, all the facts of Mr. Seffu’s case were referred to the Railways and Harbours Service Commission who considered the case and ordered the dismissal”.

            By 23^rd January, 168, therefore, the plaintiff should have had no doubts as to who had ordered his dismissal from the service and it was then open to him to lodge an appeal in the normal way. Even assuming that the decision to dismiss him from the service was that of his authorized officer, a decision later confirmed by the Commission, there was noting to stop him on the 23^rd January, 1968 to ask the Commission to review his case in accordance with Regulation 59 of the East African Community Service Commission Regulations (which are in every respect similar to the East African Common Services Organisation Commissions Regulations.). Regulation 59 provides:

            “59(1) Where any matter relating to disciplinary proceedings in respect of any officer has been referred to the Commission and the Commission has for the first time made a decision or order therein, the authorized officer or the officer in respect of whom the decision or order has been made may request the Commission to review its decision or order in such matter:

            “Provided that the Commission shall not review such decision or order unless it receives new material facts which the Commission is satisfied might have affected its former decision or order and if adequate reasons for the non-disclosure of such facts at the earlier date are given.

            “(2) Any application or request for the review by an officer in respect of whom a decision or order has been made by the Commission shall be submitted through the authorized officer together with such new material facts within six weeks of the date upon which the decision or order of the Commission is addressed to the officer. Only one such review shall be allowed.”

            In May 1969 the General Secretary of NUTA wrote to the Director General of the Railways Corporation asking him to review Mr. Sefu’s case under the provisions of Regulation 59. However nothing came of this request as the General Secretary of NUTA had not complied with the procedure laid down in Regulation 59. It was also the view of the Director General that no new facts had come to light since the decision to dismiss Mr. Sefu had been taken in 1967 and therefore the question of review did not arise.

            This is the short summary of the leading to Mr. Sefu filing a plaint against the General Manager of the East African Railways Corporation.

            The question therefore, arises whether the Courts of law can entertain such a suit, the purport of which is to question the validity of the decision taken by the East African Railways and Harbours Service Commission? On the principles aptly stated by Lord Morris of Borth-y-Gest in the Anisminic v. Foreign Land Compensation Commission case, it would seem to me that the Courts of this country are debarred from inquiring into the validity or otherwise or the decision to dismiss Mr. Sefu.

            The clause in the statute Section 16) ousting the jurisdiction of the Courts is precise and couched in the most clear and unambiguous language possible- it says “the question whether any member of a Commission or any other person or authority has validly performed any function of the Commission delegate to such member or other person or authority under this Act, shall not be inquired into in any Court.” By the provisions of Section 13 and regulations 50 to 52 of the Public Service Commission Act, 1962 (the Section and regulations of the Community Service Commission are in similar terms), it is abundantly clear that the power of disciplining and removing from office officers in receipt of a salary of less than £400 per annum has been delegated by the Commission to the Heads of Departments of the officer concerned. There can therefore be no doubt that when the District Mechanical Engineer instituted the investigation into Mr. Sefu’s Conduct in this case he was acting properly within his jurisdiction.

            I have already indicated how this investigation was conducted and how eventually, it was decided that the respondent, Mr. Sefu, should be dismissed from his service. There is nothing throughout the course of the disciplinary proceedings to suggest that the authorized officer acted without or in excess of jurisdiction. That being so, his decision is one which the provisions of section 16 of the Act say this Court or any Court shall not inquire into. Parliament for reasons best known to itself has stated categorically and in a language which is both clear and unambiguous that where a Commission or an authorized officer has performed a duty or function which it is within his jurisdiction to perform or do in terms of the provisions of the Act, such  a performance shall not be the subject of inquire in any Courts of law. That is what Parliament has decreed and it is not open to the Courts to even hear arguments, as the learned Resident Magistrate did in this case, which suggest that the Commission or authorized officer might have been mistaken in its or his decision.

            Even if It were alleged, as it might on occasion be, that the Commission or authorized officer misconstrued the provision of the law or regulation, that  would still not have entitled the Court to question the decision reached by the tribunal. Lord Reid in Reg. v. Governor of Brixton Prison Ex p. Armah (1968) A.C.192, 234 stated the matter thus: “If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue and there is irregularity in the procedure, he does not destroy his jurisdiction reaching a wrong decision. If he has jurisdiction to go right he has jurisdiction to go wrong. Neither an error in fact nor an error in law will destroy his jurisdiction.” To the same effect we find the following passage in paragraph 119 in Volume 11 of Halsbury’s Laws of England, 3^rd Edn. (1955) page 62: “Where the proceedings are regular upon their face and the inferior tribunal had jurisdiction, the superior Courts will not grant the order of certiorari on the ground that the inferior tribunal misconceived a point of law. When the inferior tribunal has jurisdiction to decide a matter, it cannot (merely because it incidentally misconstrues a stature, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, r convicts without evidence ) be deemed to exceed or abuse its jurisdiction.” It would therefore appear plainly clear that the learned Resident Magistrate in this case was mistaken in purporting to question the validity of the decision reached by the Conclusion to dismiss the respondent from his employment. The legislative enactment in question which ousted his jurisdiction did so in clear and unambiguous terms and the least he could have done was to comply. In not so complying he grossly erred and his decision cannot be sustained. It must accordingly be quashed and set aside.

            It follows therefore that this appeal has to be allowed. And an order to the effect that the decision of the East African Railways and Harbours Commission to dismiss the respondent/plaintiff with loss of all benefits, is a matter in which the Courts have no jurisdiction to inquire, shall issue accordingly.