Court name
Court of Appeal of Tanzania

Itika Ketta Mwakisambwe vs Mara Cooperative Union (1984) Ltd () [1993] TZCA 20 (30 August 1993);

Law report citations
1993 TLR 206 (TZCA)
Media neutral citation
[1993] TZCA 20

Kisanga, J.A., delivered the following order of the court:
I The appellant was summarily dismissed from employment by the respondent, The Mara Cooperative Union, his employer. He filed a

suit in the High Court against such summary dismissal. The respondent Union did not file its written A statement of defence in time. Whereupon the appellant applied for an ex-parte proof of his claim which was duly granted. On the day set for the ex-parte proof, however, the presiding Judge struck out the suit for want of jurisdiction in terms of s 28 of the Security of Employment Act (cap 574) B which ousts the jurisdiction of the court in matters of summary dismissal. The appellant was aggrieved by that decision, hence this appeal.
The appellant appeared and conducted the appeal in person while the respondent Union was represented by Mr Dyabusha, learned advocate. In his memorandum of appeal and his written C submissions, the appellant raises the issue of constitutionality of s 28 of the Security of Employment Act which, as it were, prevents him from knocking on the door of the High Court to have his grievance redressed. He says that the s violates his basic right under article 30(3) of the Constitution D of the United Republic of Tanzania.
Thus it becomes obvious that the appellant is alleging a violation of a basic right. While such a claim is triable by the High Court in the first instance, the appellant is raising it for the first time in this appeal. This Court has no competence to deal with the matter as a court of first instance. E
On the day the appellant came to court for ex-parte proof of his case, the Trial Judge asked him if the Court had jurisdiction over the matter in view of the Security of Employment Act. Obviously the appellant was taken unawares and the only answer he could give was that he was advised by a F magistrate and the labour officer that he could do so. Whereupon the learned Judge stated that he was going to strike out the case, and immediately adjourned the matter for this purpose. It is in the course of appealing against the decision to strike out his case that the appellant has raised the issue G of violation of his basic rights.
As stated before, the appellant was taken awares. He never expected to be questioned by the Judge on the issue of jurisdiction, and so he was least prepared for it. Worse still, he was a layman who was in no position to avail himself of any legal counsel immediately to answer the Judge's question in H court. We think that had he been given notice or sufficient notice of the issue put to him by the Trial Judge, he would have come up with an answer which raises the issue of the constitutionality of s 28 of the Security of Employment Act, as indeed he has done in this appeal.
So that as the matter stands now, the Judge's ruling cannot be I

A said to have taken into account the appellant's real answer to the question put to him.
In the circumstances we think that the appellant should be afforded the opportunity to respond fully in the High Court to the issue of ouster of jurisdiction of the court in matters of summary dismissal. BConsequently, the ruling of the High Court is set aside. The matter is sent back to the High Court with a direction to hear the appellant on the issue of ouster of jurisdiction of the court and, in the process determine the constitutionality or otherwise of s 28 of the Security of Employment Act which C sanctions such ouster of Court's jurisdiction. Any party who is dissatisfied with the decision of the High Court on that issue should be at liberty to appeal to this Court.

E
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