20110118 TZHC Dar es Salaam

'} ' = .;; . . ... • .." 1 ~ " '. ' :( ,' ;> .,.. _. ~y'4 ~,t.; •'l-' . IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 92 OF 2010 ·ANNE .MUSHI. . . . . . . . . . . . .. . . . . . . . .. . ..... 1 5 T PLAINTIFF ZAWADI BAHENGE ........................2No PLAINTIFF RD . HAPPINESS KABALE ...................... 3 PLAINTIFF · TH LULU MKWAWA........................... 4 PLAINTIFF HALIMA BANDAWE . ... ~ .................. _5TH PLAINTIFF IDDAH ASSENGA . .........................6 TH PLAINTIFF THOBIAS PAUL . .......................... _7TH PLAINTIFF JOHANITHA RICHARD . ..................... 8TH PLAINTIFF VERSUS VODACOM TANZANIA LIMITED .............. DEFENDANT O~te of the last order: 19/11/2010 I ..J Date of the Ruling: 18/01/2011 RULING MASSENGI. J, Plaintiffs through their advocate Mr. Chuwa are suing defendant VODACOM TANZANIA LIMITED represented by advocate. Mr. Nyamungururi:- 1 . (a) Special damages for loss of hearing being permanent in- capacity to the tune of 250,000,000/= tor each plaintiff, that is 250,000x8=2,000,000,000/= (b) General damages as a result of loss of hearing, the Plaintiffs can no longer be employed and as a result they deserve to be awarded general damages to be assessed at by the discretion of the court not less than 200,000,000/= per each plaintiff that is 200,000,000/= ) x8=1,600,000,000/= (c) Exemplary damages not less than Tshs. 50,000,000/= Defendant in - his written statement of. defence raised a · preliminary objection on point of law and that· is; the court does not have jurisdiction to entertain the suit pursuant to provisions of section 94(1) (d) and (e) of the Employment and Labour Relations Act, and Section 51 of the Labour Institution Act, 200. In his submission the learned counsel for defendant submitted that this court has no jurisdiction to entertain matters relating and arising out of employment contract, that jurisdiction is vested to - Labour Court by Section 91 (l)(d) and (e) of the Employment and Labour Relations Act and Labour Institutions Act. The statute defines the word complainant and dispute in section 4 of the Employment and Labour Relations Act which covers the case in 2 ' . hand. Plaintiffs who are employed by defendant as customer care operators are claiming from defendants damages suffered as a result of injuries they sustained in the cause of employment. Section 51 of Labour Institution Acts confers exclusive civil jurisdiction to Labour Court including all employment matters falling under Common Law, tortuous liability, vicarious liability or breach of contract within the pecuniary jurisdiction of the High Court. Hence this court has no jurisdiction to determine the matter. He referred the court to the case of ST BERNAD'S HOSPITAL COMPANY LTD VS LINUS MAEMBA MLULA CHUWA (unreported) where his Lordship Kalegeya J (as then he was) on page 5 of the ruling said:- "To ascertain what is a trade dispute envisage under the Industrial Act" Also in the case of TAMBUENI ABDALLAH & 89 OTHER VS NATIONAL SOCIAL SECURITY FUND civil App. No. 33 of 2000 (unreported) at page 13 of the ruling, Court of Appeal stated that "trade dispute ha s no room to go to the High Court straight as it does not have original jurisdiction." The learned advocate prays for suit to be dismissed for lack of jurisdiction. 3 In his reply the learned counsel for plaintiffs Mr. Chuwa submitted that his learned brother has misinterpreted both Acts. The cardinal principle of interpretation of statutes is that all Acts of the Parliament has to be construed so as to give effect to the intention of the maker. Section 94(i) of Act No. 6/2004 is very clear that the Labour Court subject to the Constitution shall have exclusive jurisdiction only to matters relating to application interpretation and implantation of the provisions of that particular Act. The Act provides for fundamental rights and protection, that is child labour, forced - labour, discriminations, employment standards related to contents of employment that is terms of employment and the matter before this court does not fall in any provisions of that Particular Act. Plaintiffs are not seeking any relief for unfair termination, and the matter is not a complaint as alleged by defendant's counsel. And going th~ough the plaint no where the plaintiffs are seeking with interpretation of the Act. Therefore the matter before this court is a suit based under Article .,.._..,.,,, 108(2) of the Constitution which provides that if any specific matter is not specified by any law then the High Court has jurisdiction to hear such matter. Also under section 2 (2) of the Judicature and Application of Laws Act the High Court is conferred with jurisdiction to hear matter of conformity with 4 substance of the Common Law Doctrine of Equity and Statute of General Application which were in force in England in July, 1920. The matter before this court is not a contract but it is a breach of duty primary fixed by the law derived from law of tort which is addressable by Common Law. The learned advocate distinguished the case of ST BERNAD HOSPITAL from the case of TAMBUENI ABDALLA as the case of ST BERNARD case was on wrong termination and the case of TAMBUENI ABDALLA was based on redundancy which is covered by Labour Act.- He then su.bmitted that the court has jurisdiction and if it has no jurisdiction then the remedy is to struck off and not dismiss. In rejoinder Mr. Nyamugururi he maintained that this court has no jurisdiction as there is a special forum to adjucate all matter involving disputes between employees and employer established by law and that is Labour Court that is the Employment and Labour Relations Act and Labour Institutions Act. The objection raised by defendant's counsel is that this court has no jurisdiction of entertaining this matter which arises out of the Contract of Employment. The jurisdiction is exclusively vested on Labour Court by Section 94(1) (d) and (e) of the 5 Employment and Labour Relations Act No. 6/2002 read together with section 51 of the Labour Institution Act No. 7/2002 Plaintiff's advocate is saying this court has jurisdiction to entertain the matter as it is not contained in both above mentioned laws. In the High Court jurisdiction is drived from Article 108 (2) of the Constitution and Section 2(2) of the Judicture and Applications of Laws Act, to entertain this suit. The court is then called upon to determine whether the claim by plaintiffs falls within the ambits of the Employment and Labour Relations Act and Labour Institution Act or of the Article 108(2) of the Constitution and Section 2(2) of the Judicture of Application of_~--_ Laws Act. Plaintiff's claim as contained in the plaint presented to this court are as found under paragraph 3 of the plaint that they are claiming damages suffered as a result of injures they sustained in the course of employment as a result of the defendant's ..__I negligence of failing to supply the plaintiffs with suitable equipment as per para 6 of the plaint. According to the plaint the defendant, the employer supplied plaintiffs, his employees with headsets as working equipment to attend customers as customer operating attendant. The equipment supplied by defendant to plaintiffs were not the right equipment and were not in good order 6 and as a consequence caused ear pains and gradual loss of hearing related to inner ear/nerve conduction which is a permanent in capacity without treatment or option. Now from the above facts what are the plaintiffs claim base on? The defendants advocate is saying plaintiffs' claim falls under section 51 of the Labour Institution Act whereby all employment matters falling under Common Law, tortuous liability, various liability and breach of employment contract are contained. The matter in this court is between employer and employees whereby the employees and asking for damages a relief arising from negligence of the employer for failing to supply them with proper working equipment. From these facts is quite clear that the claim· based on negligence as indicate in the plaint is a tortuous liability. The issue does not end there as it touches the liability of the employer to provide his employees with a safety equipment and tools, hence we can says that the claims also fall under tortuous liability that is Employers liability, whereby the employer is imposed with a duty and oblige to provide safe equipments and tools to his employees and to conduct certain periodical test or examination of the equipments or tools by qualified officer. In this particular suit the plaintiffs claim is that the defendant their employer have failed to full fill his obligation or duty to provide them with the safe and adequate equipment and 7 tools. In other words VODACOM TANZANIA LIMITED has failed to provide them with safe and adequate head sets in their employment of attending customers through phones. As a result of the employer failure to supply them with safe and adequate equipment to perform their duties, they have suffered injury and therefore VODACOM as an employer have failed to perform his duty of care to his employer. It is clear on black and white that is a tortuous liability under the tort of employers' liability. After establishing that the plaintiff's claims are based on tortuous liability the next issue is whether the Labour Laws in force for the time being does not accommodate the same. ~ Defendant's advocate is saying tortuous liability arising from the employer/employee relationship is accommodated or covered by the Labour Laws and that is section 94 of the Employment and Labour Relations Act No. 6/2004 and section 51 of the Labour Institutions Act No. 7 which gives exclusive jurisdiction to the · -' Labour Court and hence the High Court which is not Labour Division has no jurisdiction. Plaintiffs" advocate is saying the jurisdiction matter is not covered by the Labour Statues or any other statute hence by virtue of Article 108 of the Constitution of United Republic of Tanzania and Section 2(2) of the Judicature and Application of Laws confers jurisdiction to the High Court. Let 8 see what the Labour statutes have. Section 94(1) of the Employment and Labour Relations provides:- "Subject to the Constitution of the United Republic of Tanzania, 1977, the Labour Court shall have exclusive jurisdiction over the application, interpretation and implementation OF THIS Act and to decide (under lying is mine) (a) . ...... . (b) . ...... . (c). . . . . . ......... . (d) Complaints other than those that are to be decided by arbitration under the provisions of this Act (e)Any dispute reserved for decision by the Labour Court under this Act. Mr. Nyamungurusi referred the court to section 94 (i) (d) whereby the Labour Court's jurisdiction is stipulate and section (d) of the section confers jurisdiction on labour court to determine complaints, other than those that are be decided by arbitration 9 ." under the provisions of this Act. Meaning of complaint is found in section 4 of the same law whereby complaint is defined as follows:- "Complaint" means any dispute ans,ng from the application interpretation or implementation of (a) An agreement or contract with an employee (b) Collective agreement (c) (d) The dispute before their court 1s that of the breach of employers liability whereby plaintiff are claiming that plaintiff their employer whom they had a contract of employment has failed to provide them with proper working equipment and as a result they have suffered injuries. It is my finding that this is a complaint arising purely from the contract of employment and falls within the ambits of section 4 of the Employment and Labour Relations Act. I therefore totally disagree with due respect to Mr. Chuwa learned advocate that the dispute before this court is out of the arena provided by Labour Laws. And agree with the learned advocate Mr. Nyamungurusi that the dispute is within the Labour Laws' 10 arena by virtue of section 94 (1 )(d) and the exclusive jurisdiction is conferred to Labour Court by section 51 of the Labour Institutions Act which provides:- "Subject to the Constitution and the labour laws, the Labour Court has exclusive civil jurisdiction over any matter reserved for its decision by the labour laws" Since this is not a labour Court then it does not have jurisdiction to decide the matter before it and I hereby upheld the preliminary objection on point of law raised by defendant's -- advocate that this court has no jurisdiction to entertain the matter before it and the plaint is hereby struck out with costs. F.H. Massengi JUDGE 18/11/2011 11 Delivered in chamber court in presences of plaintiffs in person and Mr. Nyamungurusi defendant's counsel. F.H. Massengi JUDGE 18/11/2011 12