Simon Josephat vs Dar es Salaam Water and Sewerage Corporation (Civil Appeal No. 441 of 2021) [2024] TZCA 1095 (13 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE. J.A.. MWAMPASHI. J.A. And NGWEMBE, J.A.^ CIVIL APPEAL NO. 441 OF 2021 SIMON JOSEPHAT ........................ . ...................................... APPELLANT VERSUS DAR ES SALAAM WATER AND SEWERAGE CORPORATION.... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, Labour Division at Dar es Salaam) ( Mnvukwa. 3.1 dated the 5th day of July, 2021 in Revision No. 941 of 2019 JUDGMENT OF THE COURT 3rd & 13th Nov. 2024 MKUYE. 3.A.: Simon Josephat, the appellant, was employed by the respondent, Dar es Salaam Water and Sewerage Corporation (DAWASCO) in 2002 in the position of Legal Officer. He later rose to the rank of a Legal Department Manager until on 20/4/2017 when he was terminated from his employrrient. It was alleged by the respondent that, the appellant called the Chief Executive Officer (the CEO) of the respondent, being his supervisor, via his mobile phone and informed him that the officers from the Prevention and Combating of Corruption Bureau (the PCCB) were after him and that he (appellant) was willing to accompany him to meet them at their offices. The CEO was astonished with this information and

he shared it with other colleagues who decided to make a follow up with the PCCB. It was, however, revealed that there was no such move by them. Following this revelation, the appellant was called to appear before a disciplinary committee for hearing on two charges involving dishonesty and proven gross insubordination. Upon the conclusion of the disciplinary hearing, the appellant was found guilty of dishonesty. The Disciplinary Committee recommended that the appellant be terminated from employment. He was ultimately terminated on 21/4/2017. Aggrieved by that decision, the appellant lodged a labour dispute with the Commission for Mediation and Arbitration (the CMA) seeking for reinstatement. Before the trial could commence in earnest, the respondent raised a preliminary objection that the CMA lacked jurisdiction to entertain the matter on account that the appellant was a Civil Servant and he ought to have exhausted the local remedies under the Public Service Act, however, the said preliminary objection was overruled. The CMA proceeded with hearing of both parties on the main dispute whereupon, it found in favour of the appellant and granted him

twelve months salary, one month salary in lieu of leave and severance allowance. Being aggrieved by the CMA's decision, particularly, on the fact that his prayer for reinstatement was not granted, the appellant lodged an application for revision in the High Court, which upon hearing both parties, made a determination that the CMA lacked jurisdiction to i entertain the matter on account that the appellant, being a public servant, had not exhausted the local remedies as prescribed by section 32 A of the Public Service Act, Cap 298 (the PSA). Ultimately, the decision of the CMA was reversed. Still undeterred, the appellant has appealed to this Court on three grounds of appeal as follows:-

1. The Honourable Revisionai Judge erred in law in entertaining, adjudicating and deciding a preliminary objection the way it did under the circumstances of this matter.
2. The Honourable Revisionai Judge erred in law in holding that the CMA had no jurisdiction to entertain this dispute. i
3. The Honourable Revisionai Judge erred in iaw to pronounce judgment prematurely.

When the appeal was called on for hearing, both the appellant and his advocate did not enter appearance whereas the respondent had the services of Ms Jenipher Kaaya, learned Senior State Attorney teaming up with Ms. Kumbukeni Kondo, learned State Attorney. Upon being satisfied that the appellant was duly served on 15/10/2024,'the learned Senior State Attorney prayed and we granted leave for the matter to proceed with hearing in the appellant's absence, in terms of Rule 106 (12) of the Tanzania Court of Appeal Rules, 2009, more so, when taking into account that, the appellant had filed his written submission since 17/1/2022. In his written submission, the appellant has narrated at length on what transpired from the CMA up to the High Court. Submitting on the 1s t ground of appeal, it was argued that the Hon. Revisional Judge erred in reopening, entertaining and adjudicating on the issue of jurisdiction of the CMA which was decided by the CMA and there was no complaint raised by the respondent on it by way of appeal or revision. It was argued that the respondent ought not to reopen it. In relation to the 2n d ground of appeal, it was argued by the appellant that the jurisdiction of the CMA is conferred by statute and as such it has power to entertain any labour dispute provided there is employer - employee relationship as per section 2 of the Employment

and Labour Relations Act, No. 6 of 2004 applying to all employees including those in public service of the Government of Tanzania in Mainland Tanzania. The appellant is of the view that the appellant and respondent do not fall within the PSA. As regards section 32 A of the Public Service Act as introduced by the Written Laws (Miscellaneous Amendment) Act No. 3 of 2016, it is the appellant's argument that it does not cover those who don't fall under the ambit of that Act and that it was not intended to oust the jurisdiction of the CMA.’ The appellant insists that the PSA was not applicable to both appellant and respondent and that the door for exhausting remedies available under the PSA had already been closed. He concluded that neither section 3 nor 32 A of PSA oust the provisions of labour laws which confer jurisdiction to the CMA to entertain labour matters. With regards to ground no. 3 that the Honourable Revisional Judge pronounced judgment prematurely, it was the appellant's argument that after the preliminary objection was heard, the High Court gave an order that the ruling thereof was to be issued on 5/7/2021. However, without an order for departure from such order the Honourable Revisional Judge delivered a judgment while the matter was not heard on merit to attract such judgment. For this reason, it is his

view that the judgment was delivered prematurely and that the ruling on the preliminary objection is yet to be delivered. In response, Ms. Kaaya representing the respondent resisted the appeal. Having not filed written submission in reply, she responded orally as per .Rule 106 (10) of the Rules. She opted to begin with ground no. 2 on the issue of jurisdiction of the CMA. She contended that the CMA did not have jurisdiction to entertain the matter at hand. Predicating her argument under section 32 A of the PSA, she argued that under such provision the appellant ought to exhaust all internal remedies then go to judicial review. She added that, according to items 2.1 and 8.6, 10 of the Staff Regulations Guidelines, 2016 the disciplinary authority for the appellant is the Board of Directors and if he was not satisfied with its decision he ought to have appealed to the Chief Executive Officer. However, she said, after the decision of the Board the appellant did not appeal to the CEO and instead, he filed his complaint to the CMA without having exhausted the internal remedies as per the PSA. The learned Senior State Attorney justified this move by arguing that this was the procedure which ought to be complied with since the cause of action/proceedings were conducted in 2017 after the Public Service Act had been amended by introducing section 32 A through the

Written Laws Miscellaneous Amendment Act 2016 (No. 3 of 2016). To fortify that the CMA had no jurisdiction, she referred us to the cases of Tanzania Ports Corporation v. Dominic A. Kalangi, Civil Appeal No. 12 of 2022 - pg 6-7 and Tanzania Ports Corporation v. Jeremiah Mwandi and Civil Appeal No. 474 of 2020 TZCA 17317 (9 June 2020) pg 16-17. In relation to grounds nos. 1 and 3 which she argued together, the learned Senipr State Attorney contended that the preliminary objection on the jurisdiction of the CMA was properly raised at that stage as it involved jurisdiction. This was to enable the Court to satisfy itself if it was clothed with such jurisdiction to handle the matter. To support this stance, she referred us to the case of Ramsey H. Mshana v. Minister for Labour and 2 Others, Civil Application No. 131 of 2008 (unreported) which the Court cited in the case of Julius Rukambura v. i Isaack Mtwa Mwakajila, Civil Appeal No. 2 of 1998 (unreported) and Fanuel Mantiri Ng'unda v. Herman Mantiri Ng'unda [1975] LRT 155 at 159 holding 3 (c) and (d) to the effect that the issue of jurisdiction was critical and could be raised at that stage. On the complaint that the Revisional Judge wrote a judgment instead of a Ruling as reflected in his last order, Ms. Kaaya argued that i it was a mere typographical error because even looking at the content of

the said decision depicts that it did not determine the matter on its merits. She invited the Court to refer to the case of MM Worldwide Trading Com Ltd and 2 others v. National Bank of Commerce, Civil Appeal No. 258 of 2017 (unreported), where the Court discussed the issue of'striking out and dismissal on time limitation and remarked that what is to be looked into is the substance of the matter and not the words used. At any rate, she argued that, each party was given a right to be heard and none was prejudiced. At the end she insisted to the Court to find that the CMA i conducted the matter without having jurisdiction and dismiss the appeal for want of merit without costs since this is a labour matter. Having heard the rival submissions from either side, we think, we need to begin with addressing the 2n d ground of appeal to which, in our view, the matter revolves around, on whether the CMA was clothed with jurisdiction to entertain the matter of this nature. But before embarking on this ground, in earnest, we wish to respond to the complaint that perhaps the issue of jurisdiction was not properly raised. The contention that the Revisional Judge reopened the issue which had been already determined by the CMA, we think, such an argument is misconceived or unfortunate.

On our. part, we agree with the learned Senior State Attorney that the issue was raised properly at that stage since it involved jurisdiction. It is a well settled principle of law that points of law such as on jurisdiction or time limitation can be raised at any time even at appeal stage. This position was taken by this Court in the case of Ramsey H. Mshana (supra). In the said case, when the Court was confronted with akin scenario while citing the case of Richard Julius Rukambura i (supra) stated as follows:- "The question o f jurisdiction is paramount ... it can be raised and entertained at any stage o f the proceedings in order to ensure that the Court is properiy vested with jurisdiction to adjudicate the matter before it ." Also in the case of Tanzania Revenue Authority v. Tango Transport Company Limited, Civil Appeal No. 84 of 2009 [2016] TZCA 84 (26 October, 2016) the Court stated thus:* "... a question o f jurisdiction can be beiatediy raised and canvassed even on appeal by the parties or the Court suo motu, as it goes to the root o f the triai" [See also: Fanuel Mantiri Ng'uda (supra)]

Now, on the basis of the above cited authorities, we agree with Ms. Kaaya that the issue of jurisdiction of CMA was properly raised and entertained by the Revisional Court since it could be raised even at appellate stage or by the Court suo motu. It cannot be said that so long as it was raised at the CMA and overruled and that the respondent did not raise it at the High Court, that alone could cloth the CMA with jurisdiction as suggested by the respondent. This now takes us to the 2n d ground of appeal, which in our view, is the centre of the controversy which hinges on the issue whether the CMA had jurisdiction to entertain the labour dispute that was instituted by a public servant. There is no dispute as was hinted earlier on that the appellant was an employee of DAWASCO which was a public corporation as promulgated by paragraph 4 (1) of the Public Corporations Establishment Act made under section 4 of the Public Corporation Act, 1992. According to section 4 of the Interpretation of Laws Act, Cap 1, a "public Servant" is defined to include " every officer or department vested with or performing duties o f a pubiic nature, whether under the immediate control o f the President or not and indudes an officer or department under the central or a locai authority, community or a public corporation " This means that an employee of a public corporation such

the respondent herein is a public servant by virtue of the above definition. We can conclude that the appellant was a public servant whose affairs would be governed by the Public Service Act. In 2016 the said PSA underwent an amendment whereby the same was, through Written Laws (Miscellaneous Amendments) (No. 3) Act of 2016, introduced section 32A which stipulates as follows:- i "A public servant shaif, prior to seeking remedies provided for in Labour Laws, exhaust aii remedies provided for under this A c t " The above amendment which emphasized that the public servant should exhaust local remedies available under the Act before embarking on remedies under the labour laws, came into operation on 18/11/2016 t which means by the time the cause of action arose in this matter, it was already operational. This Court has in several occasions discussed the gist of the above provision. Just to mention but a few, they include the cases of Dominic A. Kilangi (supra), Jeremiah Mwandi (supra) and Tanzania Posts Cooperation v. Evaristo Miho, Civil Appeal No. 87 of 2023 [2024] TZCA 443 (11 June 2024). For instance, in the case of Dominick A. Kilangi (supra), when the Court was confronted with a similar scenario, it observed that, the appellant therein had not exhausted the remedies under PSA, that is to appeal to the Public

Service Com'mission and if still aggrieved to appeal to the President. Consequently, the CMA was found to have lacked jurisdiction to deal with the matter. Also in the case of National Health Insurance Fund and Another v. Grace Lobulu and Others, Civil Appeal No. 521 of 2022 [2024] TZCA 259 (12 April 2024) the Court while faced with a similar situation had this to say:- "The above provision requires an aggrieved public servant to utilize the internai mechanism provided in the aforesaid Act before resorting to other available remedies under the labour laws. In terms o f section 25 (1) (a) (b) and (c) o f the Act, the respondents being public servants, had an opportunity to appeal to the Public Service Commission against their termination. I f further aggrieved by the decision o f the said Commission■ , they could have appealed to the President whose decision would have been final. ” Of course, we also note and agree with Ms. Kaaya that, before reaching the stage of the Commission and President there are preliminary disciplinary proceedings which are essentially governed by the DAWASCO Staff Regulations Guidelines 2016 (the Guidelines) in which items 2.1 and 8.6 10 are pertinent. According to item 2.1 C of the

Guidelines the disciplinary authority for the appellant was the Management Appointment Committee and if he was not satisfied with the decision of the disciplinary authority, he ought to appeal to the Chief Executive Officer within three working days before embarking to the Commission as per item 8.6.10, if such need arose. » In this matter, as was rightly argued by the learned Senior State Attorney, the appellant did not exhaust all available remedies provided for under the PSA. He being a public servant, in our view, after being terminated by the disciplinary committee and dissatisfied by its decision, ordinarily, he ought to have appealed to the CEO and if still dissatisfied with the CEO's decision he could have appealed to the Public Service Commission. If he was still aggrieved by the outcome of the Public Service Commission, he ought to have appealed to the President; and if not satisfied with the President's decision he could have resorted to judicial review in the High Court [See: Sanai Merumbe and Another v. Muhure Chacha [1990] T.L.R. 54]. All said and done, we agree with Ms. Kaaya that the Revisional Judge was justified in finding that the CMA lacked jurisdiction to entertain the mater. In the 3r d ground of appeal, the appellant's complaint is that the High Court gave or pronounced the judgment prematurely simply

because the decision was titled judgment instead of the ruling as per the last order dated 24/6/2021. We think, as was rightly submitted by Ms Kaaya, that might have been caused by typographical error. This is so because even looking at the content of the so-called judgment is not on merit of the matter but on the preliminary objection that was raised. In » this regard, we find this ground to have been misconceived. That said and done, we find the appeal to have no merit and we accordingly, dismiss it with no order as to costs. DATED at DAR ES SALAAM this 13th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL t A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 13th day of November, 2024 in the presence of Mr. Godfrey Francis, learned Counsel for the Appellant and Mr. Urso Luoga, learned State Attorney for the Respondent, is hereby certified as a true copy of the original.