RULING OF THE COURT. The third respondent herein, Elias K. Musiba, used to be an employee

Transcription

1 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: RUTAKANGWA, J.A., MBAROUK, J.A., And MASSATI, J.A.) CIVIL APPLICATION NO. 97 OF 2010 TANZANIA TELECOMMUNICATIONS COMPANY LTD... APPLICANT VERSUS 1. THE ATTORNEY GENERAL 2. THE MINISTER FOR LABOUR 3. ELIAS K. MUSIBA... RESPONDENTS (Application for stay of Execution from the Ruling of the High Court of Tanzania at Dar es salaam) 16 March & 14 April, 2011 RUTAKANGWA, J.A.: (Mgaya, J.) Dated the 9 th day of July, 2010 In Misc. Civil Application Case No. 10 of RULING OF THE COURT The third respondent herein, Elias K. Musiba, used to be an employee of the applicant, the Tanzania Telecommunications Company Limited. His services with the applicant company were terminated on 15 th November, He was aggrieved, and successfully challenged, the termination before the Shinyanga Conciliation Board. The Board found the termination/ 1

2 dismissal to have been unlawful. It accordingly ordered for his reinstatement. The decision of the Board was upheld by the Minister for Labour on a reference to him by the applicant company. Aggrieved by the Minister s decision, the applicant sought judicial review of the same. It applied for leave to apply for the order of certiorari and mandamus in the High Court at Dar es salaam vide Misc. Civil Application No. 10 of The High Court struck out the application for being incompetent. This was on 9 th July, Dissatisfied with the order of the High Court, on 19 th July, 2010 the applicant lodged a notice of appeal to this Court. The notice of appeal, under Rule 83 (1) of the Tanzania Court of Appeal Rules, 2009 (henceforth the Rules) partly states: being dissatisfied with the decision of Hon. Justice MUGAYA given at Dar es salaam on the 9 th of July, 2010 intends to appeal to the Court of Appeal of Tanzania against the whole of the said decision. Thereafter, the applicant lodged this application on 9 th September,

3 This application, by Notice of Motion, is brought under Rules 10, 11 (2) (b) (c) (d) (i) (ii) and (e) of the Rules. In the notice of motion, the applicant is seeking two orders. These are:- (a) the court issue an exporte order for an interim stay of the orders of the Minister for Labour dated 21/12/2009 pending the hearing inter partes of the application for an temporary stay of the execution of the said, Minister s orders; (b) the court grant, inter partes an order for a temporary stay of execution of the orders of the Minister for Labour dated on 21/ 12/2009 pending the determination of the intended appeal, notice of which was lodged on 19 th July, The notice of motion is supported by an affidavit sworn by Lugano Rwetaka. Among the annextures to the affidavit are copies of the drown order extracted from the ruling of Mgaya, J. dated, 9 th July, 2009, the said rulings of Mgaya, J., the notice of appeal against the decision of Mgaya, J., and the ruling of the Minister and the Conciliation Board. Conspicuously 3

4 missing is a copy of a notice of appeal in relation to the orders of the Minister for Labour which are the subject of this application. Rule 10 of the Rules, deals with extension of time. As in this application no order for extension of time is being sought, it is our considered opinion, that the citing of this Rule on one of the enabling provisions was totally superfluous. For this application, we have found the most relevant provision of the Rules to be Rule 11 (2) (b) and (c). Rule 11 (2) (b) and (c) reads as follows:- (2) Subjects to the previsions of sub rule (1) the institution of an appeal, shall not operate to suspend any sentence or to stay execution, but the Court may:- (a) (b). not relevant.. In any civil proceedings, where a notice of appeal has been lodged in accordance with Rule 83, an appeal shall not operate as a stay of execution of the decree or orders appealed from except so far as the High Court or tribunal many order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from decree or order; but the Court, may 4

5 upon good cause shown, order stay of execution of such decree or order; (c) where an application is made for stay of execution of an appealable decree or order before the expiration of the time allowed for appealing therefrom, the Court, may upon good cause shown, order the execution to be stayed. (Emphasis is ours). When this application was called on for hearing, Mr. Majura Magafu, learned advocate for the third respondent who was being assisted by Mr. Masati Makoi, learned advocate, rose to argue two points of preliminary objection, notice of which had been earlier lodged. The two points were presented in the alternative. The most telling was the first one which reads thus:- That the application for stay of execution is incompetent in that whereas the Application seeks to stay an order of the Minister dated on 21 st December, 2009, which in terms of the filed Notice of Appeal, is not the decision appealed from, the same has been preferred under wrong provisions of the law as the provisions cited are applicable for stay of execution of Order or Decree appealed from. 5

6 In his brief but focused submission in support of this particular point of objection, Mr. Magafu contended that, all things being equal, a stay order under Rule 11 (2) (b) of the Rules can only be granted where an applicant has duly lodged a notice of appeal to this Court in respect of an impugned order or decree under Rule 83 of the Rules. In this particular case, he argued, the applicant has never lodged, any notice of appeal in relation to the orders issued by the Minister for Labour dated 21 st December, He accordingly urged us to find the application incompetent and strike it out with costs. In response, Mr. Peter Mutumla, learned advocate for the applicant, conceded the point of preliminary objection, and concurred with Mr. Magafu that the application was incompetent. However, he was quick to point out that the Court should not strike it out. Instead, he pressed, the Court should, involve its revisional powers under section 4 (3) of the Appellate Jurisdiction Act, cap. 141 R.E and revise the proceedings before the Minister and decision thereon as they full of illegalities. That this application is totally misconceived and incompetent is not a debatable issue. We have two reasons to bear us out on this assertion. 6

7 One, the applicant is seeking a stay of execution of the Minister s decision in a Labour dispute under section 42 (3) of the then Security of Employment Act, Cap 387 R.E In terms of section 43 of the said Act, such decision of the Minister under a reference to him, was final and, conclusive. There was no right of appeal either to this Court or the High Court. See, also H. M. CHAMZIM AND 71 OTHERS V. TANZANIA BREWERIES LIMITED, Civil Appeal No. 54 of 2004 (unreported). If the applicant had no such right of appeal to this Court it would be highly preposterous, in our respectful opinion, to urge this Court to cloth itself with jurisdiction to entertain this application and grant the orders sought herein. Equally uncontested is the fact that there is no law vesting us with jurisdiction to revise the orders and/or decisions of the Minister issued or given under section 42 of cap Two, even if the applicant had a right of appeal to this Court, this application would have definitely failed for want of any notice of appeal lodged under Rule 83 of the Rules, in respect of the Minister s order dated 21 st September, Failure to lodge such notes of appeal would have rendered this application incompetent as correctly argued by Mr. Magafu and conceded by Mr. Matumla. This is because if there is no notice of 7

8 appeal, there can be no intended appeal. If there is no intended appeal in existence, no valid order for stay can be issued under Rule 11(2) of the Rules. For the forgoing reasons, we sustain this first point of preliminary objection. We find and hold that this application is totally misconceived and incompetent. We accordingly strike it out with costs. It is so ordered. DATED at DAR ES SALAAM this 6 th day of April, E.M.K. RUTAKANGWA JUSTICE OF APPEAL M. S. MBAROUK JUSTICE OF APPEAL S.A. MASSATI JUSTICE OF APPEAL I certify that this is a true copy of the original. Z.A. MARUMA DEPUTY REGISTRAR COURT OF APPEAL 8