By Evarist Baimu Nyaga Mawalla - Home

The complaint is not that a person is not allowed to go to the High Court at all. It is thathis improperly abridged by the you every provision.The argument advanced on behalf of the plaintiff is also that the limitations which areinherent in section 27(10) have no plausible connections with the provisos prescribedunder Article 30(2), and reference is made to the judgment of the court of Appeal inKukutia Ole Pumbun vs The Attorney General, Civil Appeal No.32 of 1992 (unreported),in which two conditions were attached to the applicability of Article 30(2) where aprovisions of a law happens to be inconsistent with any of the constitutional provisionspertaining to the basic human rights, freedoms and duties. This is a powerful argument.Mr. Salula however submits that the decision in Ole Pumbun’s case does not availthe plaintiff , because, according to him, section 6 of the Government Proceedings Act of1967 with which the court was dealing in that case was held to be unconstitutional on theground that it completely precluded access to the court, unlike section 27(10) of theIndustrial Court of Tanzania Act. We are bound to disagree. So far as we can discern thatwas strictly not the ratio decided of that decision, at any rate the only one. And we thinkit is quite explicit that the rules laid down by the Court o Appeal in that judgment areeminently capable and were meant to be of or general application.Quite frankly we have to acknowledge having failed to ascertain in what way section27(10) can ever tend to the overriding public and societal interests set out under Article30 (2), how, in other words, the limitations imposed under that section can be reasonablelinked to any of the interests prescribed under the Article. We wholly agree and we hold,therefore, that Ole Pumbun’s case avails the plaintiff and that none of the provisions ofArticle 30(2) can be called into play.Mr Salula further submits that section 27(10) cannot be impugned because, in the firstplace, Article 13(6) (a) gives a person aggrieved the right to another legal remedybesides and appeal. It is quite true that the Article guarantees two alternative remedies,i.e, the right of appeal or the right to have recourse to another legal redress.But we should hasten to point out that this circumstance does not effectively meet theobjection taken by the plaintiff in the instant case, namely, that the section goes a longway to negate each of those two alternative rights. As Mr Tenga says, decisions of theIndustrial Court which are not comport with the weight o evidence, or which are givenper incuriam are in deliberate disregard to the relevant authorities, are by virtue of thesection not impugnable. Yet these are the things which would probably give rise to themajority of the complaints against the decisions of the Court.Secondly, it is the opinion of Mr Salula that the Industrial Court is not a one-tier organ,and that this renders wrong the idea that challenging the decisions of the Court only onground of lack or jurisdiction is encroaching upon a person’s right given under Articles13(6) (a). It is also his observation that the proceedings of the Court are held by a judgeof the High Court and assisted by two assessors, that an elaborate procedure obtains; thatappearance by advocate is allowed; and that in this case the proceedings were concluded139