Makame, Kisanga and Omar, JJ.A.: There was an alleged trade dispute between the C two parties in this appeal: the Management of Hotel Africana on the one hand, and Jumuiya ya Wafanyakazi wa Tanzania on behalf of some 225 employees of that hotel on the other. The alleged dispute was taken to the Permanent Labour Tribunal for inquiry D and at the hearing there the Management of Hotel Africana was represented by Mr. Lakha, learned advocate, whereas Jumuiya ya Wafanyakazi wa Tanzania was represented by Mr. Kazoka. So as to facilitate easy reference we shall hereinafter refer to the respective parties simply as Hotel Africana and Juwata.
Mr. Lakha at the Tribunal took three preliminary issues, urging that the matter should not E be heard there. One of the issues Mr. Lakha raised, and which was one relevant in this present appeal, was that the dispute was not properly before the Tribunal because a wrong provision of the law was used, as a result of which the matter had not been validly referred to the Tribunal: the Tribunal was therefore without jurisdiction.
At the end of the day, after considering the rival arguments, the Tribunal reached the F conclusion that it did have jurisdiction.
Dissatisfied with that decision, Hotel Africana sought, and was granted, leave to apply for orders of certiorari and mandamus to remove into the High Court, and quash, the G aforesaid decision of the Permanent Labour Tribunal. Again Hotel Africana was advocated by Mr. Lakha, and this time Juwata was represented by Mr. Ismail, learned counsel. The substantive application was heard by Msumi, J. who decided against Hotel Africana. The learned High Court judge was satisfied, for reasons he gave and which we H were urged to reconsider, that "the procedure adopted in referring the dispute to the Tribunal is legally sustainable.... it is quite evident that this Application cannot be sustained". Hotel Africana's application for the orders of certiorari and mandamus was accordingly dismissed, with costs. I
Hotel Africana is now before us represented by Professor
MAKAME JJA, KISANGA JJA AND OMAR JJA
Fimbo, learned advocate. They are appealing against the High Court decision by Msumi, A J. and have filed six grounds of appeal. In the event, only two grounds, Grounds 5 and 6, were argued: the first four grounds were abandoned and not pursued. As before the High Court, the respondents were represented by Mr. Kisusi. He is resisting the appeal. B
Let us first clear the desks: What is the position in the matter so far; and exactly what is the appeal before this Court about? The position is that the intended inquiry by the Permanent Labour Tribunal has not yet taken off. Hotel Africana have twice unsuccessfully challenged the Tribunal's power to conduct the inquiry, and they are now C urging this Court to find that the two fora below erred in saying that the dispute was properly and validly before the Tribunal and so it had jurisdiction to inquire into it.
As Msumi, J. has correctly remarked, there are several ways of referring matters to the Permanent Labour Tribunal. We wish to add that the different modes cater for different D situations and are not necessarily designed to achieve identical goals. They have different destinations, as Prof. Fimbo observed.
For our purpose we need only confine ourselves to sections 4 and 9 of the Permanent E Labour Tribunal Act because the decisions below really hinged on these two sections.
On 13th July, 1987, the Labour Commissioner wrote a letter to the Minister for Labour, copied to Juwata, Hotel Africana and the Association of Tanzanian Employers, briefing him on what he reckoned was a trade dispute between Hotel Africana and Juwata. The F letter went on:
Baada ya mazungumzo hayo haukutokea muafaka wowote kati ya pande hizi mbili. Kwa hali hiyo, kwa misingi ya kifungu cha 9A cha Sheria ya Mahakama ya Kazi ninahisi kuwa huu ni H mgogoro wa kikazi unaofaa uchunguzwe na hatimae nawe utoe uamuzi wa mwisho. Hivyo nawasilisha taarifa hii kwako ili ukiridhika uiagize Mahakama ya Kazi ifanye uchunguzi kwa kadri utakavyoona inafaa.
The Minister for Labour responded on the morrow by writing to the Chairman of the Permanent Labour Tribunal, copy to Hotel Africana, Juwata and others. (but not to the Labour Commissioner). In that letter the Minister made reference to the letter from the Labour Commissioner and said, inter alia: I
MAKAME JJA, KISANGA JJA AND OMAR JJA
Kwa mujibu wa kifungu cha 9A(1) cha Sheria ya Mahakama ya Kazi 1967 ninatoa idhini kwa A Mahakama ichunguze:
(a) Kama utawala wa hoteli Africana ulikuwa umewaachisha wafanyakazi kwa kufuata taratibu na kwa sababu za misingi za kisheria.
(b )... B
(c) ...
Mr. Lakha's submision to the Tribunal was that Section 9A(1) did not empower the Minister himself to refer a trade dispute to the Tribunal. We think it is pertinent to C reproduce that section at this juncture:
Section 9A(1), introduced in 1977 by section 4 of Act No. 13 of 1977 provides:
Subject to subsection (2) where any trade dispute exists or is apprehended, the Labour D Commissioner may inquire into the causes and circumstances of the trade dispute and, with the approval of the Minister, refer any matters appearing to him to be connected with or relevant to that trade dispute to the Tribunal and the Tribunal shall inquire into the matters E referred to it and report on them to the Minister.
When the Tribunal submits its report to the Minister the latter "shall make a decision in relation to the matters contained in the report and submit to the Tribunal the said decision F and the Tribunal shall register the same as an award."
Now, what did the Tribunal say about Mr. Lakha's submission was: G
nzito na murua kabisa kisheria. Mahakama moja kwa moja imetosheka kwamba uwezo wa Waziri wa Kazi ni wa kumwezesha kutoa idhini (approval) kwa Kamishna wa Kazi. Kwa kuwa Waziri alitoa maagizo kwa Mahakama kuchunguza mgogoro Wakili Lakha ametoa hoja H kubwa kwamba basi hakuna mgogoro mbele ya Mahakama ambao unaweza kushughulikia,. Mahakama imetazama hoja hizi na kwa unyenyekevu kabisa, ni lazima Mahakama itie hoja zote maanani.
Having said the foregoing, the Tribunal went on to ask itself whether the action of the I Minister was prejudicial. The Tribunal
MAKAME JJA, KISANGA JJA AND OMAR JJA
was satisfied that the error was merely procedural - what the Minister did was to A approve: it was, however, the Labour Commissioner who forwarded the file to the Tribunal.
The Tribunal, however, went on to warn: "Utaratibu huo sasa ukome, sheria ifuatwe." One may be tempted to interject here and ask, what if the practice is not stopped? B
We felt it would help to appreciate the issue better if we explained the stand the Tribunal took over the matter, as indicated above. It is against that background that Msumi, J.'s decision would be fully understood.
Msumi, J. was loud and clear regarding the Minister's action. In the learned judge's view C "The wording of this subsection is too clear to require interpolation. To constitute a valid reference before the Tribunal, the matter must be referred by the Labour Commissioner and not the Minister. The role of the Minister is to give fiat that the matter should be referred to the Tribunal." Msumi, J. went on: D
In this letter, which is addressed to the Chairman of the Tribunal, the Minister is, in no uncertain terms, referring the matter to the Tribunal for determination. This fact cannot be E clouded by the eleventh hour attempt by the Labour Commissioner to swear an affidavit that he was the one who referred the matter to the Tribunal ... And unless the Tribunal is properly seized with the matter in dispute it cannot exercise jurisdiction. In this case, so long as the F matter was referred by the Minister who purportedly acted under the provision of section 9A(1) of the Act there was nothing before the Tribunal for determination.
Having made these observations, however, the learned High Court judge went on to G consider whether the Minister in fact referred the matter to the Tribunal under section 9A(1) of the Act.
His answer to this question was in the negative. He found, by some process of reasoning, that the Minister in fact acted under section 4(4)(a) of the Act. We say 'by H some process of reasoning' by design, because as it is clear, the Minister himself said, and in so many words, that he was acting "Kwa mujibu wa Kifungu 9A(1)...". The finding by Msumi, J. therefore implies taking away the specific words of the Minister and putting in the Minister's mouth, as it were, section 4(4)(a). The said subsection goes thus: I
MAKAME JJA, KISANGA JJA AND OMAR JJA
Notwithstanding the provisions of subsection (2) and subject to the provisions of section 36, A where a trade dispute has been reported to the Labour Commissioner in accordance with subsection (1) and both the parties to the dispute apply in writing for the dispute to be referred B to the Tribunal for settlement, or where the Labour Commissioner, after consultation with parties to the dispute, is of the opinion that the dispute should be referred to the Tribunal for settlement without any conciliatory measures being first taken in respect thereof, he shall C report the dispute to the Minister, and the Minister shall within twenty-one days from the date when the dispute was reported to him either:
(a)refer the dispute to the Tribunal for settlement, or
(b)refer the dispute back to the Labour Commissioner with a direction to proceed in D accordance with subsection (2); provided, etc.
As aforesaid, Msumi, J. found that the Minister referred the matter under section E 4(4)(a). He also found propriety in the Minister's action. The effect of this was, as it were, to save the day for Juwata, to say that the dispute was properly before the Tribunal, which therefore had the power to hear the matter. In the result Hotel Africana's application for the orders of certiorari and mandamus was dismissed, hence this appeal before us. F
As it can be seen therefore the Tribunal took the view in essence, that the reference was under section 9A(1) but that no harm was done - it was only a procedural error, so the Tribunal was empowered to entertain the matter; whereas the High Court found that the G Tribunal could not handle the dispute if the reference by the Minister was under section 9A(1), but that in this case the Tribunal had jurisdiction, albeit on a different score, that is, the reference was not under 9A(1) but rather under section 4(4)a.
Prof. Fimbo has invited us to go along with Msumi, J. to the extent of holding that a H reference under section 9A(1) can only be done by the Labour Commissioner and that if it was done by the Minister himself then the purported reference was invalid, with the consequence that the Tribunal was not clothed with the necessary jurisdiction. Learned advocate for Hotel Africana has further urged us to say that Msumi, J. erred in moving I from the correct proposition above and asserting that the Minister was acting under section
MAKAME JJA, KISANGA JJA AND OMAR JJA
4(4)(a). He also submitted that in any event it was an error to hold in the circumstances A that the provisions of the said section 4(4)(a) were applicable. Prof. Fimbo also invited us to say that there was no evidence from which the High Court could properly hold that there was a report by the workers, in writing, to the Labour Commissioner. The significance of this last complaint by Prof. Fimbo is that the requirement of a report B in writing is one of the pre-requisites for activating section 4(4).
In his address to us Mr. Kisusi learned advocate for Juwata sought to support the High Court finding that the reference was indeed by the Minister but it was under section 4 C and not under section 9A(1). In answer to Prof. Fimbo's complaint that under section 4(4) there must be a report to the Labour Commissioner, and in writing, and that there was no evidence that such a report was made, Mr. Kisusi conceded that such written report is required but he submitted that such a report was not mandatory. The notice in D writing was to be by the Secretary General of Juwata but, according to Mr. Kisusi, the requirement merely enables the Secretary General to make the report in writing: The word may does not connote the imposition of a duty to make the written report so the absence of such a report cannot be of any consequence. Mr. Kisusi further submitted E that if it is held that a written notice was necessary Hotel Africana has not proved that such a notice was not there or that if it was there, that it was not in writing. Mr. Kisusi also argued that in the event that it is held that under section 4(4) the Labour Commissioner must expressly indicate his opinion such failure was not fatal. For good F measure Mr. Kisusi further argued that, in any event, the Permanent Labour Tribunal Act is silent as to the consequences of such failures as Prof. Fimbo has pointed out, which according to Mr. Kisusi were merely procedural, so the failures are 'harmless' and have not occasioned 'substantial prejudice'. G
We were treated to formidable lists of authorities, for which we are grateful to both learned counsel. Some of the authorities made very elementary points or enunciated very obvious principles. We do not propose to detain ourselves with some of these. H
We propose to take another look at section 4(4) and examine the learned argument spent on it. Msumi, J.'s view was, as aforesaid, that the Minister acted in accordance with section 4(4), and now see how he gauges the Minister's action within the said sub-section. Regarding the requirement of a written notice to the Labour Commissioner, I the learned judge appreciated that "admittedly there
MAKAME JJA, KISANGA JJA AND OMAR JJA
is no evidence to show how the Labour Commissioner received the information and A from whom" but he went on to assert that it is more likely than not that it was the employees through Juwata who made the report. Assuming that that was correct there was another hurdle the learned judge had to jump and it is this: the report had to be in B writing. This is how the learned judge managed the task. he said "And since the report was made by Juwata, the same must have been in writing." We wish to confess that we find this reasoning rather acrobatic. Quite obviously Juwata makes various reports to various people and not all such reports are in writing. Why must this one, if there was C one, have been in writing? It was required to be in writing but that is long way from saying it must have been in writing. A further probe into section 4(4) is necessary. It is another pre-requisite that both parties to such dispute apply in writing for the dispute to be referred to the Tribunal for settlement unless, on his own, the Labour Commissioner, D after consultation with the parties to the dispute, is of the opinion that the matter should be referred to the Tribunal for settlement without conciliatory measure being taken. In that case he shall report the dispute to the Minister who may do one of the two things - under section 4(4)(a) he may refer the dispute to the Tribunal for settlement, E which is what Msumi, J. says the Minister did, and which view is supported by Mr. Kisusi.
We are not satisfied that the various pre-requisites under section 4(4) were complied with. We think they have to be complied with and that they are there for some purpose. For example, the parties may not wish to go to the Permanent Labour Tribunal for F settlement. They may for example prefer to have a Labour Officer to try and effect a conciliation under section 4(2), and they, or one of them, can effectively bar recourse to the Permanent Labour Tribunal under section 4(4). Under section 4(2) incidentally the G Labour Commissioner may (with the prior approval of the Minister) tell the parties to go back to the table for negotiation and settlement. Yet another example: it may be more advantageous from a party's point of view to have his dispute proceeded with under section 9A(1), where the Tribunal would only inquire and report back to the Minister H who would make a decision to be registered as an award with the Tribunal. These different avenues are neither empty husks nor sheer formalities. They are variously designed to effect the settlement of a dispute and each avenue leads to its own destination and consequences.
With great respect, we are not satisfied that the various necessary pre-conditions were I satisfied under section 4(4). And for
MAKAME JJA, KISANGA JJA AND OMAR JJA
reasons we have attempted to show, we are of the view that those pre-conditions are A indeed necessary pre-requisites and not useless procedure. Failure to fulfil them is fatal to the process. In the event the Tribunal would have no jurisdiction to inquire into the dispute and such exercise by it would have been a nullity - See Anisminic Ltd. v Foreign Compensation Commission and Another [1969]2 WLR 163. B
Our ultimate decision does not depend on only what we have just said. We still have to answer the question as to whether the Minister's action was under section 4(4) or under section 9A(1). Of course, as indicated, the parties hold opposite views. Juwata's stand C is that it was under section 4(4) which view we are unable to sustain.
We have to turn to the other suggested alternative - that is that the Minister acted under section 9A(1). It is clear to us that for the reference to be valid it must be by the Labour Commissioner with the approval of the Minister. When the Tribunal has inquired into the D matter it reports back to the Minister who then makes a decision, unlike under section 4(4) where the reference is for a settlement by the Tribunal which then itself makes an award. In his letter to the Minister the Labour Commissioner clearly advised the Minister "uiagize Mahakama ya Kazi ifanye uchunguzi kwa kadri utakavyoona inafaa" so Ethat the Minister may ultimately decide. The Permanent Labour Tribunal found the reference by the Minister improper, whatever the Tribunal preferred to call the action, only that it did not cause prejudice. Msumi, J. found it clearly wrong for the Minister to purport to act under section 9A(1), only that he found that the Minister acted under a F different section, section 4(4). Before Msumi, J., Mr. Kisusi had argued that the reference was made by the Labour Commissioner or that if it was by the Minister, then the Minister was acting as a delegate of the Labour Commissioner. We think the latter limb of this submission was scraping the barrel of arguments and that it is clearly G untenable. The Labour Commissioner was not empowered to delegate, he did not say he was delegating, and it would have been quite awkward and suprising if he said he was. How the letter of the Minister reached the Tribunal and whether or not the whole Ministerial/Departmental File was in fact physically taken to the offices of the Tribunal, is H neither here nor there, really. What is important, and clear to us, is that the matter was bungled and we are not in a position to say, like the Tribunal in effect did, it is wrong and don't repeat it next time, in the meantime we shall close our eyes to the impropriety and I hear your problem. We do not think it is a mere procedural error, arid of consequences. The
Tribunal has power, it is vested with jurisdiction, only when a dispute is properly before A it. If, before, it handled matters not properly taken to its door and no one raised a voice, we can only say that now that some one has challenged the practice it is proper that the matter be considered and adjudicated upon. We are of the considered view that B the Minister was wrongly advised to refer the dispute to the Tribunal under section 9A(1) and that he was not legally competent to do so. What was therefore taken to the Tribunal was, as it were, a nothing and the Tribunal had no jurisdiction to enquire into what was not there. It is not a question of mere procedure, it is not a question of C 'substantial prejudice' to use Mr. Kisusi's expression; it is a question of want of jurisdiction. The document must be by a person designated to issue it. This was one of the points made in The King v Postmaster General ex parte Carmichael [1928] 1KB 291.
Because of the foregoing we are satisfied that the Permanent Labour Tribunal erred in D assuming jurisdiction and that the High Court ought to have granted the orders prayed for. We therefore allow this appeal with costs, and accordingly quash the finding by the Permanent Labour Tribunal that it had jurisdiction to hear what was purportedly referred to it. There was no dispute properly before it neither under section 4(4) nor under section 9A(1). E
Appeal allowed.
F
