aloyce lekule vs tanga cement company ltd 2011 tzhc 2122 9 march 2011

IN THE HIGH COURT OF TANZANIA AT TANGA MISC. CIVIL APPEAL NO.5 OF 2010 [Originating from RM'S Court Tanga, Misc.Civ.AppLNo.41 o f2008] ALOYCE LEKULE.............................................. APPELLANTV VERSUS TANGA CEMENT COMPANY LTD....................... RESPONDENT Date of last Order: 03/11/2011 ^ Date of Ruling: 09/3/2011 RULING Teemba, 3; The appellant, Aloyce Lekule, filed Misc. Civil Application No.41 of 2008 at Tanga Resident Magistrate Court, praying for an order of attachment and sale of a motor vehicle with Reg. NO. T226 for realizing the total claim of Tshs.65,598,505/= being arrears of salaries; leave pay; X-mas awards; subsistence allowance on reinstatement; deductions from salary and interest. The trial court found the application devoid of merit on account that the appellant was already reinstated to hisemployment and was also paid Tshs. 12,215,042.00 by the Respondent. For that reason, the lower court proceeded to dismiss the application with costs. Being aggrieved with that order, the appellant preferred this appeal under the following grounds:- 1 1. The honourable Magistrate erred in law when he dismissed the Application for execution by relying on S.40A(5) of the security of Employment Act 1964 which was inapplicable in Misc. Application No.41/2008. , 2. The honourable Magistrate erred in law when he dismissed the application for execution by relying to the case of Pius Sangali and Others V. Tanzania Portland Cement Co. Ltd, Civil Appeal NO..100 of 2001 [unreported] which is distinguishable. 3. The honourable Magistrate erred in law by dismissing the Application for execution by concluding that after the Applicant's reinstatement he was not entitled to his accumulated salary, leave pay, subsistence and christimass award without critically observing that these are statutory rights following reinstatement. 4. The honourable Magistrate erred in law when he dismissed the Application for execution for the reason that the amount of Tshs. 12,215,042.02/= paid to the Appellant in consequence of his reinstatement was above 12 months wages and severance allowance without exposing the statutory benefits and its calculation thereof. The respondent was dully served with the copy of the memorandum of appeal. On 22nd day of February, 2011, under the legal services of Mr. Kariwa learned advocate, the respondent filed a notice of preliminary objection couched thus:- 1. "The Appeal is time barred. 2 2. That appeal is in law incompetent for want'of attachment of the relevant drawn order. 3. That order of resident court [sic] is not in appeallable. . 4. That, this suit is in law misconceived for want of jurisdiction in that the cause of action is founded on Employer - Employee relations which is . exclusively justifiable in the labour court." On 22nd day of September, 2011, the court allowed the parties to argue the raised preliminary objections by way of written submissions. They complied with the scheduling order thereon. In his written submissions Mr. Kariwa decided to advance the 2 and 3 preliminary objections and abandoned the rest. As to the 2nd preliminary objection, Mr. Kariwa learned counsel for the respondent stated that the appellant filed this appeal without accompanying a decree or an order to the memorandum of appeal. Mr. Kariwa referred the court to the provisions of Order XXXIX Rule 1 of the Civil Procedure Code [Cap.33 R.E. 2002] which insists that the appeal should be accompanied by a copy of decree, order or judgment appealed from unless the court dispenses therewith. The learned counsel supported his proposition by citing the case of HJ. Stanley and Sons Ltd V. Ramadhani Kunyamale [1988] T.L.R. 250 in which it was stated that in the absence of a copy of decree in filing the appeal there is no legal presentation of the appeal. Mr. Kariwa also cited the case of Yusufu Mntambo and Others V. Moezalidina, HC at DSM Registry, Civil 3 Appeal No.9 of 1985 [unreported] in which' Mapigano, J. [as he then was] emphasized that a memorandum of appeal to be competent must be accompanied by a copy of an order appealed against. In that regard Mr. Kariwa stated that, the present appeal is neither accompaned with a decree nor an order and he urged the court to dismiss the same for want of competent appeal. As regards the 3rd preliminary objection, the learned counsel submitted that the order appealed against is not subject to appeal. Mr. Kariwa supported his proposition by citing the provisions of Sections 74, 75 and Order XL of ? the Civil Procedure Code [supra]. In conclusion, Mr. kariwa urged the court to dismiss the appeal with costs. Responding to the counsel's submissions, the appellant stated that the appeal is not emanating from a judgment but rather from a ruling. In that regard, the appellant submitted that the copy of ruling dated 08.07.2009 together with an extracted order dated 04.06.2010 in which the present appeal emanates were attached to the memorandum of appeal. He therefore urged the court to overrule the 2nd preliminary objection. As to the 3rd preliminary objection, the appellant submitted that after giving a ruling to the effect that the Application was devoid of merit, the trial magistrate proceeded to explain the right of appeal to the parties and he appealed in compliance with the order of the court. In conclusion, the appellant urged the court not to dismiss the appeal. 4 This court is of considered view that the 2nd preliminary objection has no merit. As rightly submitted by the appellant, the record clearly reveals that the present appeal was filed by way of memorandum of appeal accompanied with the copy of ruling and drawn order. In that regard the appellant complied with the requirements of Order XXXIX rule 1 of the Civil Procedure Code [Supra]. Therefore the second preliminary objection is overruled. I now turn to consider the arguments advanced in respect of the third preliminary objection. I do agree with Mr. Kariwa that the provisions of section &k 74 and Order XL of the Civil Procedure Code [Cap.33 R.E. 2002] provide a list of appeallable orders. The order appealed against in this appeal is not included. I have noted that the appellant relied on the order/explanation given by the learned Resident Magistrate to the effect that the aggrieved party has a right to appeal. This is truly reflected on record. I am of considered view that this record has greatly misled the appellant who just filed an appeal without considering other options suggested by law in the circumstances of his application. In the upshot, this objection is, sustained. The next issue is what next in this appeal? The fact that the 2nd Preliminary objection was overruled, the appeal is not maintenable as the order appealed against is not appeallable. Thus, the appeal is struck out. Having considered that the appellant was somehow misled in filing this appeal and this being a labour matter, I give no orders for costs. 5 R.A. TEEMBA, J. 9/3/2012 Court: The Ruling is delivered today in the presence of the appellant and Miss ChangvyaCl^jelac the Administration officer of Tanga Cement/Respondent. / X v 'o/ ■ \ "A R.A. TEEMBA, J. tSSSf- 151 9/3/2012. '::i 1 /.?/