D Mroso J: This is an application for the orders of certiorari and mandamus made under s 2(2) of the Judicature and Application of Laws Ordinance, cap 453 and the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance, cap 100, as amended by the Law Reform (Fatal Accidents and Miscellaneous Provisions) Ordinance (Amendment) Act 1968. Section 95 of the Civil E Procedure Code, 1966 has also been cited in aid. Tanzania Dairies Limited, henceforth to be referred to only as the applicant, obtained leave of this court in Miscellaneous Court Application No 150 of 1990, to apply for the orders of certiorari and mandamus against the Chairman, Arusha F Conciliation Board and an individual, one Isaack Kirangi, henceforth to be referred to as the first and second respondents respectively.
During the hearing of this application the applicant was represented by Mr Mareo, learned counsel G from the Tanzania Legal Corporation, and the first respondent was represented by Mr Mwaimu, learned State Attorney. The second respondent fended for himself. I raised the question whether it was proper to join an individual, one Isaack Kirangi, as a respondent in an application of this nature. The Arusha Region (Labour) Conciliation Board had given an award in favour of Mr Kirangi whereby H the applicant was ordered to reinstate him in its employ.
Mr Maro argued that it was thought proper to include Mr Kirangi as a respondent because under Rule 22 of the Crown Office Rules, 1906 which is law in Tanzania by virtue of the reception clause in the Tanganyika Order-in-Council, 1920 which applied the practice and procedure obtaining in England on I 22 July 1920,
persons affected by proceedings may show cause. That means, according to Mr Maro, that any A party affected by proceedings in a court or tribunal could be made a party in an application for the prerogative orders. The second respondent being a party who would be affected by the present proceedings was thought to be a proper party to be joined as a respondent. B
Mr Mwaimu held the view that the second respondent should not have been made a party because the orders of certiorari and mandamus cannot be directed to a private individual. He did not cite any authority in support of that view. The second respondent himself, being a layman, said he was not in a position to argue whether or not he had locus standi in these proceedings. C
On reflection, and in the absence of clear authority to the contrary, I think the applicant could validly join Isaack Kirangi as a second respondent, even though, if the court grants the orders applied, they can only be directed at the first respondent. I have come to hold this view because, according to D Halsbury's Laws of England, 1989 ed at 110, if an order nisi to an application for mandamus, for example, is given (I take this to be the equivalent of an order for leave to apply for the order of mandamus), `then notice has to be given to every person who, by the affidavits on which the order is moved, appears to be interested in or likely to be affected by the proceedings, and to any person E who, in the opinion of the court or judge, ought to have such notice'. The phrase `every person' does not appear to be restricted to the one to whom the court order would be directed but to any one `who appears to be interested in or is likely to be affected by the proceedings'. There can be no doubt that F the second respondent is a person interested in and who is likely to be affected by the orders sought, if they are granted. The first respondent, of course, is the correct party, being a kind of tribunal which exercises statutory powers of a public nature. Now, then, to the merits or otherwise of the application. G
The applicant summarily dismissed the second respondent on the ground that, when called upon to do so, he failed to produce to the employer originals of certificates which would verify his qualification for the post of senior accountant which had been offered to him. The second respondent, acting H under provisions of the Security of Employment Act, cap 574, made a successful reference to the Arusha Regional Conciliation Board, which ordered his reinstatement. Because of non-compliance with certain requirements under the Security of Employment Act, the applicant could not appeal the Conciliation Board award, but believing the Board acted ultra vir- I
A es in hearing the reference beyond the requisite period of limitation, applied to this court for the orders of certiorari and mandamus to remove the proceedings in the Board and quash them.
The second respondent was dismissed from employment as senior accountant by a letter of 22 B March 1988. The reference to the Conciliation Board was filed on 2 June 1989, a year and three months after the dismissal. But s 23(2) of the Security of Employment Act, cap 574, as amended by Act 1 of 1975, requires that the reference to the Board was to be made within 14 days of dismissal. There has not been any serious dispute that the reference was filed well after the time limited by law. C Indeed, the Board was aware of it but proceeded to hear the reference. Although the applicant claims it protested against the hearing of the reference on the ground that it was time barred, that is not apparent from the copy of proceedings of the Board which the applicant filed in this court as an annexure to the application.
D It has been argued before me that there is a lacuna in the Security of Employment Act, cap 574 in as much as it is not provided therein that time to file a reference to the Board or a further reference to the Minister could be extended on application.
E It is true indeed that there is no provision in cap 574 for extension of time to file a reference to the Board or a further reference to the Minister.
Mr Maro, on the other hand, has argued that there is no lacuna in the law. He submits however that F ss 14 and 46 of the Law of Limitation Act 1971 provide sufficient remedy. Section 14 provides -
`14(1) Notwithstanding the provisions of this Act, the court may, for any reasonable or sufficient cause, extend the G period of limitation for the institution of an appeal or an application, other than an application for the execution of a decree, and an application for such extension may be made either before or after the expiry of the period of limitation prescribed or such an appeal or application.
(2) For the purposes of this section "the court" means the court having jurisdiction to entertain the appeal or, as the H case may be, the application.'
Section 46 provides -
`46. Where a period of limitation for any proceeding is prescribed by any other written law, then, unless the contrary I intention appears in such written law, and subject to the provisions of s 43, the provisions
of this Act shall apply as if such period of limitation had been prescribed by this Act.' A
Section 43 excludes certain proceedings from the application of the provisions of the Law of Limitation Act. These are criminal proceedings, applications and appeals to the Court of Appeal for B East Africa (now presumably the Court of Appeal of Tanzania) certain proceedings by the Government, forfeiture proceedings under the East African Customs and Transfer Tax (Management) Act 1952, proceedings in respect of forfeiture of a ship or an aircraft and any proceedings for which a period of limitation is prescribed by any other written law, save to the extent provided for in s 46. C
After considerable thought, I have come to the view that the provisions of the Limitation Act 1971 apply only to appeals and applications made to a court of law. In s 14(1) of the Limitation Act, for example, reference is made to court. The Act itself does not define the term and one has to look at D the definition of the term in the Interpretation of Laws and General Clauses Act 30 of 1972. There `Court' is defined as `any court of Tanganyika of competent jurisdiction'. Even the term `proceeding' in s 46 refers and is restricted to a court proceeding. A definition of the term as used in the Law of E Limitation Act means `a suit, an appeal or an application and includes proceedings under customary law'. I hold, therefore, that the provisions of the Limitation Act 1971 do not apply to proceedings in a Regional Conciliation Board under the Security of Employment Act, cap 574. It would follows that the F Act having fixed the time within which a reference may be made to the Conciliation Board is deficient in not providing for a means of obtaining enlargement of time in case of a delay for which there is sufficient cause.
Was the Conciliation Board entitled to disregard the fact that the reference was time-barred? I think G that once the law puts a time limit to a cause of action, such action cannot be accepted and adjudicated upon after the limitation period has expired. The bar of time cannot be waived so that even if the party for the opposite side desists from raising limitation as a defence the court or tribunal before which the action is brought has no option but to dismiss it. I think, therefore, that the H Conciliation Board acted ultra vires when it heard and decided on the reference after the time provided by law had expired. Perhaps the legislature should revisit the Act to provide for a procedure for seeking and obtaining extension of time.
The question I have now to consider is whether I should quash the Board's award. I
A The orders of certiorari and mandamus, among other prerogative orders, are discretionary and this court may refuse to grant them even where the right has been established.
Traditionally the order of certiorari was directed against judicial or quasi-judicial acts only. But, as B was held in Assistant Registrar of Buildings v Fredrick G Kibwana (1), Mustafa JA said -
`An order for certiorari would lie from the High Court to an inferior court or tribunal of a judicial, quasi-judicial or even an administrative nature. The body would be a statutory or some sort of such authority such as a licensing or C municipal or disciplinary body. It would be a body of person or persons having legal authority to determine questions affecting the rights of subjects.'
A Regional (Labour) Conciliation Board is a quasi-judicial body and would be subject to the D supervisory power of the High Court.
As Mustafa JA also said in the case cited (supra) -
`If such a body acts in excess of jurisdiction or fails to observe the rules of natural justice or there is a palpable error E on the face of it, then an order would issue.'
I think that in disregarding the fact that the reference was time-barred, the Board had committed a palpable error which went to jurisdiction.
F It has been argued by Counsel for the first respondent that the applicant company itself disregarded procedural requirements in the manner it proceeded to dismiss the second respondent and, therefore, that this court should not exercise its discretion to grant the orders for which it applied. I accept this argument in part. I shall not order payment of costs to the applicant. But I shall G grant the orders of certiorariand mandamus by ordering the proceedings in the Conciliation Board to be brought up and to be quashed. I have come to this conclusion because I am aware of a growing trend in this country by various authorities to disregard legal requirements which are thought to be inconvenient or inexpedient.
H Although it may have been thought benevolent for the Board to disregard the question of time limitation, that was in any case bad discipline and I think courts of law should not give blessing to such a trend. The orders shall issue as prayed, and there will be no order for costs.
A
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