20051115 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 20 OF 2004 1.CHARLES BUPAMBA 2. CELESTINE A. KWEKA PLAINTIFFS 3. JONAS J. MSANGAZI 4. YAHAYA MHANDO VERSUS 1.TANZANIA FISHERIES CORPORATION DEFENDANT 2. PRESIDENTIAL PARASTATAL SECTOR REFORMCOMMISSION Date of last order. 9/11/2005 Date of judgment 15/11/2005 RULING ORIYO, l The plaintiffs sued the defendants, using the services of Shayo and Co, Advocates, learned counsel; for several reliefs due to an alleged unlawful termination of employment with the first defendant. The reliefs included a declaration that the termination was unlawful; payment of salaries and emoluments due up to the date of lawful termination, damages, interest and costs of the suit. 1 The defendants, using the services of Fungamtama and Co. Advocates, learned counsel, raised a preliminary point of objection in law that this court lacks original jurisdiction to determine the suit. In support of the preliminary objection, the defendants contended that the suit is based on alleged unlawful termination of employment and pursuant to the provisions of Section 3 of the Industrial Court Act No. 41 of 1967 as amended by act 2 of 1993; the suit is a trade dispute. They further contended that this court has no original jurisdiction over trade disputes. They submitted that trade disputes have to follow the procedure laid down under Section 4 of the Industrial Court Act. In support of their arguments the defendants relied on the Court of Appeal decision in the case of Tambueni Abdallah and 89 others Vs. National Social Security Fund, C/A 33/00 (unreported). The defendants prayed for the dismissal of the suit on that basis. The plaintiffs, on their part, conceded that the position is as stated in the TAMBUENI case. However they submitted that the decision in TAMBUENI has 2 been overtaken by events by the enactment of the LABOUR INSTITUTIONS ACT, 2004, which vests jurisdiction to entertain labon disputes in the Labour Division of the High Court. Under such circumstances, the plaintiffs submitted that in the event that the court holds that it had no original jurisdiction over the suit; the same should not be dismissed or struck out but returned to the plaintiffs for presentation to the Labour division of the High court pursuant to the provisions of ORDER VII RULE 10(1) of the Civil Procedure Code '966. Indeed, the suit is a "trade dispute" and the plaintiffs do not object to that. On the authority of the Court of Appeal decision in the case TAMBUENI ABDALLAH (supra) this court has no original jurisdiction over the suit. In other words the plaintiffs should not have come straight to this court as they did. The proper procedure was to follow that provided under SECTION 4 (2) and (3) of the Industrial Court of Tanzania Act. The dispute was to be reported to the trade union branch at work place or if there was no union branch or if the plaintiffs were not members of a trade union, they should have reported it to the District Labour Officer, respectively. 3 On the plaintiffs alternative argument that since the LABOUR INSTITUTIONS ACT 2004 has established a Labour Division of the High court, this court should invoke the provisions of Order VII rule 10(1) of the Civil Procedure and return the plaint to the plaintiff for lodging in the Labour Division. The argument is quite novel and attractive but with due respect, the Labour Institutions Act 2004 does not have a retrospective effect in relation to this court. Even if it had retrospective operation, the Labour Division of the High court is yet to be operational. In the result, I uphold the defendant's preliminary objection that this suit is a "trade dispute" and this court lacks original jurisdiction to entertain it. Accordingly I strike it out . Having taken into account the prevailing circumstances, I make no order for costs. K.K. ORIYO JUDGE 15/11/2005 3,257 Words 4