Mapigano, JA:
Felix Luhende, Nyangaki Shilungushella, Deo Kaholwe, Charles Maziku and Michael Mhina were C employees of the Shinyanga Region Co-operative Union (1984) Ltd, the respondent herein. Their respective services were terminated on different dates between 1989 and 1990. Being aggrieved by the said terminations they took their complaints to the applicant of which they were members. The applicant reported the matters to the Labour Commissioner under the provisions of s 9A of the D Industrial Court of Tanzania Act, 1967 as amended by Act No 3 of 1990. Upon the approval of the Minister for Labour the said Commissioner duly referred the matters to the Industrial Court for enquiry, as he considered that there existed a trade dispute between the parties. He wanted the E Industrial Court to make inquiry on procedural and substantive levels, to wit, whether the respondent had followed the laid down procedures when it terminated the services of the five employees, and whether there were good causes for the terminations.
Sitting at Shinyanga to hear the dispute the Industrial Court had to rule on a preliminary legal point F taken on behalf of the respondent as to jurisdiction. The argument advanced was that the Industrial Court had no power to investigate the dispute because the five complaints were not the respondent's employees and that, therefore, the matters referred to it did not constitute a trade G dispute. In its ruling date 27 August 1991 the Court upheld the objection, the assessors dissenting, and it then pleased the Court to `dismiss the complaints and close the file'.
The applicant has come to this Court to challenge the decision and to seek two orders, the first being certiorari to quash the decision and the second being mandamus directing the Industrial H Court to hold an enquiry and then to report to the Minister responsible for Labour matters in accordance with the provisions of s 9A(1) of the Industrial Court of Tanzania Act. The validity of the decision of the Industrial Court is impugned on two grounds. The first is that the Court has no I jurisdiction at all to make a ruling, as it did, on a
A preliminary objection, and the second ground is that the court erred in refusing to conduct an enquiry into the matters referred to it by the Labour Commissioner and that it had no discretion whatever to refrain from making such enquiry. Let us say right here that to us these grounds appear formidable, and it is not without significance that the respondent has not actually bothered to meet B them.
Before we proceed to consider and determine the two grounds we have to dispose of a preliminary objection which Dr Lamwai, learned counsel, has taken on behalf of the respondent as to the C competence of this court to entertain this application. Dr Lamwai has raised that point in an affidavit, and on behalf of the applicant Mr Kisusi learned counsel, has taken issue with that procedure. We cannot but agree with Mr Kisusi that it is wholly wrong for an affidavit to embody objections on points of law, and we need not point out that the question of jurisdiction is one which pertains to the D realm of law.
An affidavit is essentially a substitute for oral evidence, and should only contain statements of fact and circumstances. That being the case then we hold in common with Sir Udo Udoma, CJ in the case of Uganda v Commissioner of Prisons, Ex-parte Matovu (1), to which we have been referred, E that `such an affidavit must not contain extraneous matter by way of objection or prayer or legal argument or conclusion'.
All the same, we have deemed it desirable to make a few observations about the objection. In F support of the objection Dr Lamwai has urged the point that the High Court has no jurisdiction to grant prerogative orders against the Industrial Court, his reason being that the letter is not subordinate to the former. We have accepted Mr Kisusi's submission that what the applicant is seeking in this cause cannot strictly be called prerogative orders. We have to remind Dr Lamwai G that in our legal system remedies of certiorari and mandamus are, since 1968, simply known as orders. We have rejected Dr Lamwai'scontention that the Industrial Court is not subordinate to the High Court. We have not the least hesitation in saying that it is indeed so subordinate, and we have H taken the view that that is exactly what s 27(IC) of the Industrial Court of Tanzania Act signifies, and that that is immaterial that the proceedings of that Court are sometimes presided over by a judge of the High Court. In actual fact that is precisely the say it has always been viewed.
I Dr Lamwai has also urged the point that decisions of the Industrial Court are final and cannot be challenged or questioned except
on appeal to the full bench of the High Court on points of law, and, accordingly, that the applicant A should instead have come to this court by way of appeal in accordance with the provisions of the Civil Procedure Code. We regret to say that we cannot accept this proposition.
On his part Mr Kisusi points out, correctly, that there is no provision in the Industrial Court of B Tanzania Act which says that proceedings brought to the High Court to challenge the decisions of the Industrial Court should assume the form or structure of an appeal. He also makes the point that a right of appeal from any decision must as a rule be derived from a statute, and that, therefore, C unless a statute confers the right it is not otherwise available. We are not in full accord with this expression. As we understand the law, the position in Tanzania is that the said rule no longer applies to first appeals, by virtue of article 13(b)(a) of the Constitution whereunder `the right of appeal or another legal remedy' against first instance decisions of courts of law or other bodies D which decide on a person's rights or interests founded on statutory provisions is guaranteed. And in this connection mention might be made of the recent decision of the full bench of this court in Ottu v The AG and Another (2), where it was held that s 27(IC) of the Industrial Court of Tanzania Act E whittles down the right conferred by that constitutional provision; that the section falls outside the purview of article 30(2) of the Constitution; and that therefore the section is unconstitutional and invalid to the extent that it is inconsistent with article 13(b)(a). F
Mr Kisusi is however right to contend that the jurisdiction of this Court to quash for errors of law on the face of the record is traditionally one which falls under judicial review, which is normally sought by way of application. And we are certain that s 27(IC) envisages such application. In the G circumstances we have to overrule the preliminary objection, and we so do.
We now turn to the grounds urged in support of this application. In relation to the first ground the vital question of law is whether the Industrial Court has jurisdiction to make a final or dispositive H decision in a matter referred to it by the Labour Commissioner under s 9A(1) of the Industrial Court of Tanzania Act. Mr Kisusi puts forward the argument that the court does not enjoy such jurisdiction, be it on a preliminary point or otherwise; that all that the Court could have done in this case was to conduct on enquiry into the dispute and then submit its report on it to the Minister; and that it amounted to a wrong assumption of authority when the Court I
A purported to decide the preliminary objection in the manner it did.
Section 9A(1) deals with the matter this way:
`Subject to subsection (2), where any trade dispute exists or is apprehended, the Labour Commissioner may inquire into the causes and circumstances of the trade dispute and, with the approval of the Minister, refer any B matters appearing to him to be connected or relevant to that trade dispute to the Court whether or not the matter or dispute is a trade dispute within the meaning assigned to that expression by section 3, and the court shall inquire into the matters so referred to it and report on them to the Minister.'
C Mr Kisusi invites us to recognize that the power or function of the Industrial Court in relation to trade disputes referred to it by the Minister under s 4(4)(a) or s 8 is to be contrasted with its power in relation to matters referred to it by the Labour Commissioner under s 9A(1). He says that in the D former its function is adjudicatory, ie `to consider the dispute and make an award thereon', while in the latter its function is just investigatory, ie `to inquire into the matters and report on them to the Minister'. this is an unquestionally correct statement of the law and we embrace it. We think that the language of the statute could hardly be more plain in assigning those two distinct functions to the E Industrial Court. We hold that s 9A(1) as read together with s 15(2)(c) imposed an obligation of the Court to investigate the matters referred to it by the Labour Commissioner and report thereon to the Minister. We think and hold that it was, in a very significant sense, an arrogation of power on the F part of the Court to `dismiss the complaints and close the file'.
We come to the second ground. Mr Kisusi submits that the Industrial Court was in patent and serious legal error when it refused to hold an enquiry into the matters referred to it, upon taking the G view that there existed, in fact or in the contemplation of the law, no trade dispute between the parties. Again we are obliged to sustain this contention and we have to observe that much of what we have stated in regard to the first ground is also applicable here. The refusal of the Court to investigate the matters involved a clear disregard of the words of the statute. As we have already H noted, the simple and explicit words of s 9A(1) compelled it to inquire into those matters and report on them to the Minister, regardless of whether or not the matters constituted a trade dispute as defined under s 3. The court's opinion on the question whether the complainants were employees I of the respondent or not should, in our view have been stated in the report to the Minister.
In the final event, we are satisfied that this application is well-grounded. We grant the two remadies A and award the costs to the applicant.
B