christabella sowela others vs treasury registrar others 2022 tzhcld 620 8 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 201 OF 2021 (From the decision of the Commission for Mediation and Arbitration of DSM zone at DSM) (Funqo: Mediator) dated 09th day of September 2019 in Labour Dispute No. CMA/DSM/LAB/02/19 CHRISTABELLA SOWELA..................................... 1st APPLICANT MOHAMED M. NGWESHANI................................ 2nd APPLICANT SHOMARI M. ROJO............................................... 3rd APPLICANT JUMA M. CHJANZI................................................ 4th APPLICANT JUMA H. MAUMBA................................................ 5th APPLICANT VERSUS TREASURY REGISTRAR........................................ 1st RESPONDENT TANZANIA SHOE COMPANY................................ 2nd RESPONDENT TANZANIA LEATHER ASSOCIATED INDUSTRIES........................................................ 3rd RESPONDENT JUDGEMENT K, T. R. MTEULE, J. 01st June 2022 & 8th June 2022 This Revision application emanates from the ruling of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/LAB/02/19 dated 09th Day of September 2019. The Applicant is asking for this Court to call for the CMA record, revise and set aside the ruling thereof. The Applicants are praying for the following orders: - i 1. That this Court be pleased to call, revise and quash the ruling of the Commission for Mediation and Arbitration Dar es Salaam Zone, at Dar es Salaam (Hon. Fungo. E.J, Arbitrator) dated 6th September 2019 and make appropriate orders. 2. Costs of this application to be provided for by the respondent. 3. Any other and further relief the Court deems fit and just be ordered. At this juncture I find it worth, to narrate a brief sequence of facts leading to this application as extracted from the CMA record, the applicant's affidavit, the Respondent counter affidavit and the submissions of the parties. The Applicants were employed by the respondents in different date and different capacities. On 23 June 1991 they were retrenched from their employment for the reason of shortage of work. They were 1914 in total. Being dissatisfied with the employer's decision, the Applicants, through the Labour Officer, opted to refer the matter to the Resident Magistrate Court of Dar es salaam where it was decided against their desire. They further appealed to the High Court where they ended unsuccessful. They appealed further to the Court of Appeal where their Appeal was dismissed for lacking merits. Dissatisfied with the Court of Appeal's decision the matter was referred to the CMA where it was dismissed for being res judicate. They thus filed this application seeking for revision. Along with the Chamber summons, the affidavit of the applicants was filed, in which, after elucidating the chronological events leading to this application, deponed that they filed the matter at the CMA to claim the 2 unpaid part of repatriation and other benefits which were never claimed in any court of law hence the matter is not res judicata regarding Labour Dispute No. CMA/DSM/LAB/02/19. In the counter affidavit, the applicants advanced three legal issues of revision as stated at paragraph 20 of the affidavit as follows; - i) Whether the decision of the Court of Appeal of Tanzania renders the applicant's application a subject of being an abuse of the due process of adjudication of justice per-se. ii) Whether the application of the applicants in the Commission for Mediation and Arbitration was res-judicata by virtue of decision of the Court of Appeal of Tanzania in the absence of the final determination of the claims contained therein. iii) Whether the Commission for Mediation and Arbitration lacked jurisdiction to entertain and determine applicant's application. This application was argued by a way of written submissions. The applicants were represented by Mr. Godfrey Ukongwa, Advocate while the Respondent was represented, by Ms. Serina Kapange, State Attorney. In the submission, Mr. Ukwonga stated the history of the case tracing its genesis from the Resident Magistrate court of Kisutu to the Court of Appeal. He submitted that what was in court during this time was severance and subsistence allowances which were claimed by the Applicants while in Dar es Salaam waiting for the payment of terminal benefits. He submitted that the Applicants are claiming for other terminal benefits which were not the subject matter in the previous 3 cases hence the issue of res judicata do not arise. Having considered parties submissions, I have noted that the main issue for determination is whether the Arbitrator errored in law by holding the matter to be res judicata. The doctrine of res judicata is guided by the provision of Section 9 of the Civil Procedure Code Cap. 33 R.E 2019 which provides as herein quoted:- "Section 9: No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title in a court competent to try subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court”. From the above provision, res judicata do exist once the following five essential aspects are proven to co-exist:- 1. The matter directly and substantially in issue in the subsequent suit must have been directly and substantially is issue in the former suit, 2. The former suit must have been between the same parties or privies claiming under them, 3. the parties must have litigated under the same title in the former suit, 4. the court which decided the former suit must have been competent to try that suit, 4 5. the matter in issue must have been heard and finally decided in the former suit. In the case of GEORGE SHAMBWE VERSUS TANZANIA ITALIAN PETROLEUM COMPANY LTD. [1995] TLR 21, made the following proposition "For res judicata to apply not only it must be shown that the matter directly and substantially in issue in the contemplated suit is the same parties but also it must be shown that the matter was finally heard and determined by a competent court". It is contended by Ms. Serina Senior State Attorney for the respondent that what was referred at the CMA was already determined to the level of the Court of Appeal. On the other hand, the Applicants' argument according to Mr. Ukwonga is that the Court of Appeal held that the lower court wrongly dealt with the employment of the Applicants. In the plaint which was filed in the Resident Magistrate Court of Kisutu, it is evident that the claims were subsistence allowance, severance allowance, and costs of the objection and interest. In the applicant's statement in the CMA, it appears that the complaint was based on the claims which were not covered in the Court of Appeal although not specifically mentioned in the statement. From the record, it is apparent that the Applicant's claims which have been in Court from Kisutu RM's Court to the Court of Appeal was a labour conflict concerning the retrenchment which was done by the Respondents in 1991. It is expected that when this matter was filed, all the claims emanating from this course of action should have been 5 mentioned in the plaint. This is a cardinal principle in civil procedure. I will apply the provision of Order II of Rule 2 (2) of the Civil Procedure Code Cap 33 of 2019 R. E. It provides: "1. Every suit shall, as far as practicable, be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. 2.-(l) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterward sue for any relief so omitted." From the above provision, by implication, a cause of action needs to be distinguished from the claims. The matter which was lodged by the Applicants in the CMA and which resulted into the impugned decision originates from the cause of action which is payment of dues arising from the retrenchment exercise upon the Applicants. The Applicants opted to relinquish some claims, and the matter went to the apex Court 6 of the Land where they lost the case. Coming back to claim the relinquished claims is prohibited by the law unless leave is sought and obtained. The fact that the Applicants were to claim compensation does not change the cause of action. I therefore don't agree with Mr. Ukwonga that the Applicants can just come out today and reinstitute a matter which existed previously by putting forward new claims which could have been dealt with in the previous matter. The Court of Appeal decided the Appeal against the Applicants and rested the matter to the finality unless the same Court of Appeal is properly moved to issue different directives. By reading page 1 of the Judgement of the Court of Appeal, it is easy to comprehend that the cause of action alleged therein is the same as the cause of action in the CMA. The disputed claims relating to subsistence allowances was already determined by the Court of Appeal. It was only after being aggrieved by the said decision of the Court of Appeal that the Applicants seems to have came once again to make another trial to claim their dues through the CMA vide Labour Dispute No. CMA/DSM/LAB/02/19. The Commission dismissed the Application on the reason of being res judicata. Having noted that the cause of action which the plaintiff claimed before the CMA, is as the same as the one before the Court of Appeal and that the parties who were in the dispute are the same parties in this application and that the Courts which decided the previous matters were competent courts to do so, the matter before the CMA must be barred by the principle of res judicata. The CMA become functus officio and could not determine the same issue in dispute. I see nothing wrong with 7 the decision of the arbitrator. Therefore, the issue as to whether the Arbitrator errored in law by holding the matter to be res judicata is answered in the negative. From the above reasoning, I uphold the decision of the Commission for Mediation and Arbitration that this matter is barred by res judicata for having been finally determined by the Court of competent jurisdiction. I dismiss this application. No order as cost. It is so ordered. Dated at Dar es Salaam this 08th June, 2022. 8