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
THE ATTORNEY GENERAL RESPONDENT
(Application for Revision from the Proceedings and Ruling of the High Court of Tanzania (Labour Division) at Dar es salaam)
Dated the 13th day of October, 2008
Application No. 19 of 2008
RULING OF THE COURT
4th NOVEMBER, 2008 & 13"' NOVEMBER, 2008
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:-
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