20010611 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA DAR F..S SALAAM REGISTRY AT DAR ES SALAAM ANTHONY CHIDEI.JNGA PLAINTIFF VERSUS . Tfu"'{ZANIA ZAMBIA RAILWAY . AUTHORITY o•o••ooooo•oeeooeeooeo••••o 1ST DEFENDANT ATI:ORJ.~EY GENERAL · · · • • o • o o o o • • · ~ · · • • o 2ND DEFENDANT "' . RULING The plaintiff Anthony Chideliga has filed a suit in this court against the Tanzania Zambia Railway Authority and tr') .A.ttcrney General n:praying for: (a) a declaratory judgment and decree that: (i) the decisions of the Conciliation Board dated 16th January 1991 and of the Lobour Commissioner dated 6th August 1991 are null and void and of no effect; (ii) that the plaintiff is still in employment of the Tanzania Zambia Railway Authority, thus entitled to full wages from the date of purported dismissal, ie 18th June 1990 to the date the plaintiff's e employment is lawfully determined. (B) Costs of the suit (cl Interest at 31% p.a effective 16/6/90 (d) Any other relief (s) the cou~t may deem fit to grant. In its written statement of defence the Tanzania Zambia Railway Authority raised a preliminary objection on two points, that is: (i) that the suit is incompetent before the court eB the same has been instituted without observing the procedure for instuting suits seeking for prerogative orders; (ii) that the suit is time-barred under the Law of Limitation Act No.10/1991. • •• ao/2 - 2 - \ It is on record that the p~ties were allowed to argue the preliminary objection by wa::y of written submissions. It is further on record that the first defendant Tanzania Zambia Railway Authority the author of the preliminary objection defaulted in compliying with the order of the court in filing the written submissions as scheduled. Instead Mr Safari learned Advocate for the Authority pleading error in recording the court order for the scheduled submissions went ahead and filed his written . ~ubmissions on 31/10/2000 well after the scheduled time and without leave -nf,the court. As Mr Safari would appreciate the purported submissions filed outside the scheduled period are of~ value as they cannot be considered; instead they are struck out of the record. This, however, does amount to striking out the preliminary objection as I"ir Chidelig9:. would appear to suggest, The court will thus proceed to consider and determine the preliminary ""bjection for what it is, albeit without the,· assistance of legal argrnents from the learned advocate of the Tanzania Zambia Railway Authority, though with the assistance of the legal arguments of Mr Chideliga who cannot be faulted for e1e late submission. A brief backg:rOund of the matter before the court is considered :1 :_ necessary to s~d light to the ;i.S(;ue. in this ruling. The plaintiff Anthony Chideliga was employed by the Tanzania Zambia Railway Authority as a locomotive driver from 20th April 1974 to 18th June 1990 when his services were summarily terminrted for breach of paragraph (h) of the Disciplinary aode under the S.ecurity of Employment Act Cap 574. Aggrieved by the dismissal, the plaintiff made reference to the ~onciliation Board, which reversed the Authorityis decision and terminated plaintiff's employment and ordered payment of his full benefits. This was on 16/1/91. The plaintiff did not find solace in the decision of the Conciliation Board and made further reference to the Minister for Labour whereat the decision of the Conciliation Board was confirmed by the Labour Commissioner acting on delegated powers in accordance with Government Notice No.283 of 31st December 1971. This was on 6/8/91. The plaintiff further decided to fight on ultimately brought this suit on 6/8/98, seven years after the decision of the Minister for Labour. It is this trend or sequence of events which has given rise to the preliminary objection the subject matter of this Rulinga ...../ - 3 - The issue of the moment with regard to the first point of preliminary obj'ection is whether it is proper and competent to institute a suit to challenge and or undone the decision arising from a machinery laid down by law and to be precise the law governing labour rnc1.tters under the Security of Employment Acta In my conoidered and humble view, it is improper. The scheme under the Security of Employment Act pursufuit to Section 2? (1) thereto is that the decision of the Minister and the Board upon a reference shall be final and conclusive as well as binding on the parties to the referenceo For ease of reference section 27 (1) provides: UThe decision of the Minister on a reference to him under section 26, and, subjecto to any decision on a reference to the runister therefrom, the decision of a Board an a reference to it under this part- (a) eh.all be; final nnd conelusive, and (b) shall be binding on the parties to the reference, and the relationship bwetween the parties in consequence of the matters in respect of which the reference was made shall be determined accordin~l~, (underline supplied and {c) may be enforced in any court of competent jurisdiction as if it were a decree. It is further the position of the law in terms of Section 28 of the Security of Employment Act that no suit or other civil proceeding (Other than proceeding to enforce a decision of the Minister or the Board an a reference under this part) shall be entertained in a:ny civil court with regard to the sum.~ary dismissal or proposed summary dismissal or a deduction by way of a disciplinary penalty from the wages, of an employee. Civil J>£OCEte!!~na has been defined to include a cross suit or counter claim, any set off and any civil proceeding under Part XI of the Employment Ordinancett It follows from the above, that the suit filed is incompetent and improper before the court. It is accordingly struck out. Indeed in my view the other open course to Mr. Chideliga in challenging the decision of the Minister is by way of prerogative orders bearing in mind the requirements of the Law of Limitation which prescribes that action be taken within six months of the decision sought to be impugred and also the existence of grounds apparent on the record as per Court of Appeal decision -in Civil Appeal N0.54 of 1990 SINAI MURUMBE AND ANOTHER V MUHERE CHACHA (1990) ~ 540 ••••/4 • .Q • f = 4 = As consideration of this ground of objection has disposed of the matter before me, there is n.o need to consider the second ground on the prelintlnary objection touching on a very important point of law, that is the limitation period of the purported, suit, suffice to observe for the seke of the record, that the suit, if otherwise properly ' before the court, wouls still be adjudged time barred in terms of Item 7 of Part 1 of the First Schedule to the Law of Limitation, Act N0.10 of 19?1 which provides that a suit founded on contract not otherwise specifically provided for 1 be filed within six years from the date on which the right of action accrues. All said Mr Anthony Chideliga is now left the decision of the Conciliation Board as confirmed by the Minister for Lobour as his ultimate remedy. The provisions of Section -2:/ (1)(c) and 33 of the Security of Empl~yment Act are available to him in prosecution of his rights accrued from his sicteen years of service with the Tanzania Zambian Railway Authority. And as the matter arises from an employment cause I make no order for costs. /·1 (·, l-v~t -t(L ..__. S. !HEMA, JUDGE Court: Ruling to be delivered by DR at a date to be fixed by him. 1/6/2001 Coram: F.s.K. Mutungu - DR For the Plaintiff P/M Person. For the iet Dofend~t ) Mr. Safari For the 2nd Defendant ) CC: Morice - Court: Ruling read this 11/6/2001 in court in the presence of the plaintiff in person and Mr. Safari for the defendants read before F.s.K. Mutungi DR. F .. s.K. MUTUNGI DISTRICT REGISTAR 11/(:12001