Chama Cha Walimu Tanzania vs Attorney General (Civil Application 151 of 2008) [2008] TZCA 12 (11 November 2008)


 

 

 

 

 

 

 

 

 

 

 

 

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

 

(CORAM: RUTAKANGWA, J.A., KIMARO, J.A., And LUANDA. J.A.)

 

CIVIL APPLICATION NO. 151 OF 2008

 

CHAMA CHA WALIMU TANZANIA APPLICANT

VERSUS

THE ATTORNEY GENERAL RESPONDENT

(Application for Revision from the Proceedings and Ruling of the High Court of Tanzania (Labour Division) at Dar es salaam)

(Mandia, J.)

Dated the 13th day of October, 2008

in

Application No. 19 of 2008

 

 

 

RULING OF THE COURT

 

4th NOVEMBER, 2008 & 13"' NOVEMBER, 2008

RUTAKANGWA, 3.A.:

This is an application for revision. It is brought by Notice of Motion under section 4(3) and (5) of the Appellate Jurisdiction Act, Cap 141, henceforth the Act, and Rule 45 of the Tanzania Court of Appeal Rules, 1979, (hereinafter, the Rules).

 

The applicant, Chama cha Walimu Tanzania, or C.W.T., through Mr. Mabere Marando, and Mr. Gabriel Mnyele, learned advocates, is seeking revision of the proceedings in Application No. 19 of 2008 in the Labour Division of the High Court of Tanzania, henceforth the

 

Labour Court. The application was instituted against it by the respondent herein, the Attorney General of the Government of the United Republic of Tanzania. Among the grounds cited in the notice of motion for moving the Court to exercise its revisional jurisdiction are that the Labour Court:-

 

  1. entertained the said application without jurisdiction;

ii. entertained the application which was not properly before it;

iii. heard the application and granted the order prayed for therein without affording the applicant opportunity to present its case by way of a counter affidavit, thereby denying it the right to be heard; and

iv. relied on extraneous matters that were not on record in granting an injunction, and without specifying as to whether it was permanent or temporary.

 

The respondent has vehemently opposed the application. Mr. Donald Chidowu, learned Principal State Attorney, appeared before us to resist the application.

To facilitate a quick appreciation of the reasons behind this application, a brief background is necessary. The affidavital evidence on record and the proceedings before the Labour Court, provide this background.

 

The applicant is a trade union, duly registered under the provisions of the Employment and Labour Relations Act, 2004 [No.6], henceforth the Employment Act. It has about 156,923 members who are employed in the teaching profession nationwide. For quite some time the applicant, on behalf of its members, has locked horns with the government of the United Republic of Tanzania (the government hereinafter) over a number of issues concerning the welfare of its members. On 4th February, 2008, the applicant declared a trade dispute with the government. On 18th August, 2008 it issued a strike notice of sixty (60) days. The said notice was issued pursuant to the mandatory requirements of section 26 (2) (d) of the Public Service (Negotiating Machinery) Act, 2003 (No. 19), henceforth Act No. 19 of 2003. The strike, according to the notice, was to start on 15th October, 2008.

Subsequent to the said strike notice, the two parties together with other stakeholders, between 26th August, 2008 and 4th October, 2008, held four meetings with a view to settle the dispute by way of negotiations. The meetings did not fully resolve the impasse.

 

On 9th October 2008, the Majira newspaper published that the teachers were to strike effective from 15th October, 2008. It was quoting one Gratian Mukoba, the applicant's President, as the source of that information.

 

Believing that the threatened strike was illegal and malicious, the Attorney General, on 10th October 2008, instituted the earlier mentioned application under a certificate of urgency. The application was by chamber summons and the respondent (applicant then) was seeking the following orders:-

 

"1. That this Honourable Court be pleased to grant an order for permanent injunction, restraining the Respondent and their (sic) members from calling for and/ or participating in the planned strike to be held on 15th October, 2008.

2. That this Honourable Court be pleased to give such further orders and directions in these proceedings as it shall deem appropriate.

3. Costs of this Application be paid by the Respondents." [Emphasis is ours].

 

The Labour Court was moved to grant these reliefs or orders under "Rule 94(1) (f) (11) of the Employment and Labour Relations Act No. 6 of 2004, rules 24 (11) (a); 24(11) (c), 55(1) and 55(2) of Labour Court Rules Government Notice No. 106 of 2007."

 

The Labour Court issued a summons for mediation on 13th October, 2008. The mediation was to take place on the same day at 12.00. noon. Our perusal of the Labour Court original record has revealed that of the four top officials of the C.W.T. who were to be served with copies of the court summons and chambers summons, only two were served. These were Mwl. Ezekiel T. Oluoch [the Deputy Secretary General] and one Leonard Haule, who were served at 11.43 a.m. and 11.47 a.m. respectively. The President and Secretary General of C.W.T. were not served.

Mediation, however, did not take place because the parties were not represented by officials with authority to mediate. The Registrar sent the court record to "Justice Mandia for directions" on the same day. Before Mandia, J., Mr. Senguji, learned Principal State Attorney, appeared for the Attorney General, being assisted by Ms Barke Sahel, learned Senior State Attorney. For the respondent C.W.T., Mr. Mnyele, learned advocate, entered appearance.

 

What was supposed to be an appearance to receive directions turned out to be an appearance for the hearing of the application. Both counsel for the respondent herein submitted that the C.W.T. had called out a strike without complying fully with the provisions of s. 26(2) of Act No. 19 of 2003. They accordingly urged the learned Judge to grant, on the basis of the enabling provisions cited in the chamber summons, "their application for a temporary injunction", while they continued with negotiations. We have to observe in passing here that there was no application for a temporary injunction.

 

Mr. Mnyele resisted the prayer. To him the prayer was being made prematurely as they were yet to file a counter - affidavit. He

also submitted that the said court had no jurisdiction to entertain the application as it had been wrongly instituted under the provisions of the Employment Act when the appropriate legislation was Act No. 19 of 2003. He accordingly pressed that the application be "thrown out for want of jurisdiction" or, in the alternative, before the sought injunction was granted, they be afforded opportunity to file a counter - affidavit as they had only been summoned for mediation.

 

In his short rejoinder Mr. Senguji argued that the Court had exclusive jurisdiction over the matter under the enabling provisions cited and the respondent had no automatic right to file a counter-affidavit.

 

In his ruling, the learned judge held that the court was seized with jurisdiction to hear and determine the matter. He then proceeded to consider the averments contained in the affidavit of one Mathias Kabunduguru, filed in support of the chamber summons, and its various annextures. After considering the principles enunciated in the case of ATTILIO V. MBOWE (1969) HCD 284 on the grant of injunctions, he granted the injunction sought in the chamber summons.

The C.W.T. was aggrieved by the conduct of the entire proceedings before the Labour Court. It immediately filed this application.

 

When the application was called on for hearing, Mr. Chidowu rose to argue four (4) points of preliminary objection, notice of which had earlier been lodged. The four grounds of objection are as follows:-

 

 

"1. The Application is incompetent for the Applicant has not demonstrated any circumstances special or otherwise, to move this Honouraoie Court to exercise its powers of revision as an alternative to appellate jurisdiction.

2. The Application is misconceived as the Order that the Applicant wants this Honourable Court to revise is an interlocutory order.

3. The application is fatally defective for want of proper enabling provision of the law to move the court in this application.

4. The Affidavit in support of the application is bad in law for accommodating hearsay evidence, citation of laws and legal grounds contrary to the principles governing affidavits".

Both counsel submitted at length either in support of or in opposition to each one of these four points of objection. Mr. Chidowu adamantly argued that the application is incompetent and should be struck out. He cited to us a number of decisions by this Court in support of his position on each point. Mr. Mnyele was equally forceful and resourceful in urging us to find each point to be misconceived in law. He, too, referred us to a number of decisions by the Court to bolster his arguments. We shall begin our discussion with the first point of objection as listed above.

 

As already shown in this ruling, the respondent went before the Labour Court seeking a permanent injunction to restrain the applicant and its members "from calling for and/or particip

▲ To the top

Cited documents 0

Documents citing this one 68

Judgment 68
  1. Agineda Balisela vs Abila Benedictor (Misc. Land Application 3 of 2021) [2021] TZHC 2902 (30 April 2021)
  2. Ally Mussa and Others vs East African Spirit T. Ltd (Revision Application 1 of 2019) [2020] TZHC 714 (2 April 2020)
  3. Aloyce Chacha Kenganya t/a & Others vs Irasanilo Gold Mine (Civil Application No.852 of 2022) [2023] TZCA 17348 (13 June 2023)
  4. Alphonce Nicas Buhatwa Ta Coco Enterprises vs Dcb Commercial Bank Plc (Misc. Commercial Application 187 of 2018) [2019] TZHCComD 137 (24 April 2019)
  5. Asha Athumani and Trifoni Kombanila vs Sebastian Kataya and 30 Others (Civil Revision 45 of 2019) [2021] TZHC 3776 (9 April 2021)
  6. Ashery S/O James ( As Administrator of the Estate of the Late James Kalangi) vs Monica Zablon (Civil Revision No. 8 of 2014) [2015] TZHC 2172 (21 August 2015)
  7. Ashery S/o James vs Monica Zablon (Civil Revision No. 8 of 2014) [2015] TZHCLD 3 (21 August 2015)
  8. Ashrey S/O James vs Monica Zablon (Civil Revision 8 of 2014) [2015] TZHC 2101 (21 August 2015)
  9. Attorney General & Another vs Dhirajilal Walji Ladwa & Others (Civil Application No. 640/16 of 2023) [2023] TZCA 17828 (14 November 2023)
  10. Azzori Marwa Mang'ehe vs Samson Odeny Masony (Civil Appeal No.275 of 2020) [2023] TZCA 17544 (28 August 2023)
  11. Chongquing Foreign Trade & Economic Cooperation Co. Ltd vs Zakayo M. Msengi (Misc. Land Aplication 17 of 2016) [2016] TZHC 2071 (12 March 2016)
  12. Daniel Obeid Mashoto vs Tunu Obeid K. Mashoto (Misc. Civil Application 25 of 2012) [2014] TZHC 2150 (8 August 2014)
  13. Director of Public Prosecutions vs Elizabeth Michael Kimemeta @ Lulu (Criminal Appeal 6 of 2012) [2012] TZCA 3 (17 September 2012)
  14. Director of Public Prosecutions vs Elizabeth Michael Kimemeta @ Lulu (Criminal Application 6 of 2012) [2012] TZCA 167 (10 October 2012)
  15. Fatuma A. Mohamed vs Holo Juma and 5 Others (Civil Appeal 56 of 2010) [2014] TZHC 2027 (26 March 2014)
  16. Frida Andrew Kaiza vs Vedasto Mugyabuso Kujwalire & Another (Probate & Administration Cause 60 of 2007) [2014] TZHC 2156 (24 July 2014)
  17. Gabriel R. Rwakabare vs Getruda Rwakatare & another (Land Case No. 11 of 2014) [2014] TZHC 2335 (23 September 2014)
  18. George Rugaimukamu Kakoti vs Joseph Shumbusho & Others (Misc. Civil Application 576 of 2020) [2022] TZHC 9886 (31 May 2022)
  19. Godfrey Kimbe vs Peter Ngonyani (Civil Appeal 41 of 2014) [2017] TZCA 1 (21 July 2017)
  20. Gulamali Shah Bokhari & Another vs Republic (Misc. Criminal Application 40 of 2012) [2014] TZHC 2128 (13 August 2014)
  21. Idrisa Yusufu Msangi vs Zena Bakari Mwambo and Another (Misc. Land Application No. 25 of 2023) [2024] TZHC 140 (7 February 2024)
  22. James Daniel vs Cats-net Ltd (Revision No. 258 of 2017) [2018] TZHCLD 27 (13 April 2018)
  23. John Bullet Kasidi vs Capital Development Authority & Others (Misc. Civil Application 172 of 2012) [2015] TZHC 2039 (13 March 2015)
  24. John Paul Shibuda & Another vs Nordox Industrier As (Civil Application 171 of 2015) [2015] TZCA 540 (23 November 2015)
  25. John Paul Shibuda & Another vs Nordox Industrier As (Civil Application 171 of 2015) [2015] TZCA 83 (17 November 2015)
  26. John Paul Shibuda & Others vs Nordox Industries (Civil Application 171 of 2015) [2015] TZCA 359 (23 December 2015)
  27. Judicate Rumishael & others vs Guardian Limited (Misc. Appeal No. 48 of 2014) [2014] TZHC 2300 (26 September 2014)
  28. Judicate Rumishael & others vs Guardian Limited (Misc. Appeal No. 48 of 2014) [2014] TZHC 2301 (26 September 2014)
  29. Kaserkand's Construction and Transport Company Ltd vs Sebastian Mathias Sabai (Misc. Labour Application 11 of 2021) [2021] TZHC 4000 (5 July 2021)
  30. Kempinski Hotells S.A vs Zamani Resorts Ltd & Another (Civil Application 94 of 2018) [2019] TZCA 507 (12 December 2019)
  31. L. R. M Investment Co. Ltd vs Bank of Africa Ltd (Misc. Civil Application 12 of 2020) [2020] TZHC 3429 (22 October 2020)
  32. Leonard Magesa vs M/s Olam T. Ltd (Civil Appeal 117 of 2014) [2015] TZCA 101 (11 December 2015)
  33. Leonard Magesa vs M/s Olam T. Ltd (Civil Appeal 117 of 2014) [2015] TZCA 373 (11 December 2015)
  34. Martin Swai vs Republic (Criminal Appeal 225 of 2008) [2013] TZCA 417 (31 July 2013)
  35. Mhega s/o Sasi vs Republic (Criminal Appeal 266 of 2017) [2021] TZCA 200 (7 May 2021)
  36. Mohamed Iqbal vs Wahidi Fauzi Sefu (Civil Appeal 121 of 2017) [2022] TZCA 376 (16 June 2022)
  37. Mohamed Omary Mohamed (Ex.E4699 CPL) vs Inspector General of Police & another (Misc. Civil Cause No. 1 of 2015) [2016] TZHC 2232 (12 May 2016)
  38. Monica Apange vs Juhudi James Mahali (Civil Appeal No. 13 of 2022) [2024] TZHC 370 (15 February 2024)
  39. Murtaza Ally Mangungu vs Returning Officer for Kilwa North & Others (Civil Application No 80 of 2016) [2016] TZCA 2056 (6 June 2016)
  40. Mustafa Songambele vs Republic (Criminal Application 16 of 2014) [2014] TZCA 287 (18 August 2014)
  41. Nassoro Hanziruni Shaha (Administrator of the Estate of the Late Shaha Mussa Hanziruni and Another vs Dcb Commercial Bank Plc and 2 Others (Misc. Land Application 591 of 2021) [2021] TZHCLandD 6807 (14 December 2021)
  42. National Insurance Corporation of Tanzania Ltd vs Jasdeep Singh Babhra (Civil Appeal 14 of 2020) [2020] TZHC 3496 (30 October 2020)
  43. Paulo Moshi Sologo vs Jayle Mwangama (Misc. Land Application No. 145 of 2023) [2023] TZHCLandD 16474 (25 May 2023)
  44. Peter Mnyanyi vs Patrick Mission High School (Revs Appl No. 486 of 2020) [2022] TZHCLD 175 (29 March 2022)
  45. Pius Alex Msaki and 3 Others vs Tanesco (Misc. Labour Application 4 of 2019) [2021] TZHC 5543 (10 August 2021)
  46. Pius Paulo Mbaruku vs Frank Ramadhani Nyaki (Civil Reference 35 of 2021) [2022] TZHC 898 (9 March 2022)
  47. Raydom Kossam Mwasoni vs Libuka Mwakisyala (Misc. Land Application 13 of 2019) [2020] TZHC 1217 (20 May 2020)
  48. Robert Antony @ Bonge and 3 Others vs Republic (Misc. Criminal Application 18 of 2021) [2021] TZHC 2774 (24 March 2021)
  49. Robert Kiroka And 30 Others vs Knight Support Limited (Labour Rev. Application No. 44 of 2022) [2023] TZHC 15693 (23 February 2023)
  50. Sabathy Makumbati vs Republic (Criminal Revision 1 of 2021) [2022] TZHC 3096 (25 April 2022)
  51. Salum Suleiman Ally vs Ally Y Kanji (Misc. Land Case Appeal 114 of 2021) [2022] TZHCLandD 545 (21 June 2022)
  52. Samuel Kobelo Muhulo vs National Housing Corporation (Civil Application 442 of 2018) [2022] TZCA 559 (14 September 2022)
  53. Senen Edmund Mponda vs Rupin J. Rajani (Civil Application 414 of 2021) [2021] TZHC 7192 (13 October 2021)
  54. Shaban Fundi vs Leonard Clement (Civil Appeal 38 of 2011) [2017] TZCA 243 (29 August 2017)
  55. Simon Hamis Sanga vs Stephen Mafimbo Madway (Civil Application 193 of 2021) [2023] TZCA 174 (5 April 2023)
  56. Sixberty Haule & Another vs Raymon Haule & Another (Civil Revision 60 of 2012) [2013] TZHC 2034 (27 August 2013)
  57. Steven Ngoloka vs Ponsian Nkwama (Misc. Land Application 8 of 2019) [2020] TZHC 65 (27 February 2020)
  58. Sweetberta Mohamed vs Maria Goreth Evarist (Misc. Civil Application 615 of 2021) [2022] TZHC 982 (10 February 2022)
  59. Sylvery Mushema vs Commercial Bank of Africa Tanzania & Others (Misc. Civil Application 33 of 2017) [2018] TZHC 2706 (26 September 2018)
  60. Tanzania Electric Supply Co. Ltd vs Mufungo Leonard Majura & Others (Civil Application 210 of 2015) [2016] TZCA 784 (23 December 2016)
  61. Tanzania Game Trackers Limited vs Bryan Priestley (Civil Application No.17/02 of 2019) [2023] TZCA 17569 (31 August 2023)
  62. Tryphone Elias @ Ryphone Elias & Another vs Majaliwa Daudi Mayaya (Civil Appeal 186 of 2017) [2017] TZCA 200 (7 December 2017)
  63. Velisas Elizabeth Deflosse Ingleton (legal Representative Under Power of Attorney of Gordon Mcclymont) vs Gautam Jayram Chavda & Another (Misc. Civil Application 204 of 2022) [2022] TZHC 10495 (5 July 2022)
  64. Vodacom Tanzania Public Co. Ltd vs Planetel Communications Ltd (Civil Appeal 43 of 2018) [2019] TZCA 239 (17 June 2019)
  65. Vodacom Tanzania Public Ltd vs Planetel Communications Ltd (Civil Appeal No. 43 of 2018) [2019] TZCA 686 (26 June 2019)
  66. WINFRIDA MAGURE & 112 OTHERS Vs MARTIN NASSON OGWARI & OTHERS (Misc. Civil Application 16 of 2022) [2023] TZHC 17369 (28 Aprili 2023)
  67. Zalia Salmin Jaha vs Hamad Hamad Matonela (Misc. Civil Application 158 of 2017) [2018] TZHC 2843 (7 May 2018)
  68. Òysterbay Properties Ltd & Another vs Kinondoni Municipal Council & Others (Civil Revision 4 of 2011) [2011] TZCA 167 (18 November 2011)