david msumba vs tanesco 2022 tzhcld 893 23 september 2022
- Citation
- david msumba vs tanesco 2022 tzhcld 893 23 september 2022
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TANZLII
- Decision
- 23 September 2022
- Posture
- Labour Revision / Ruling on Preliminary Objection
- Language
- English
More details
- Court
- TANZLII
- Decision
- 23 September 2022
- Posture
- Labour Revision / Ruling on Preliminary Objection
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court and the CMA lack jurisdiction as the applicant, being a public servant, must first exhaust remedies under Section 32A of the Public Service Act; therefore, the application is struck out rather than dismissed to preserve the applicant's right to pursue the claim in the proper forum.
Court disposition
application struck out
Orders
- The application is struck out.
- The CMA matter is quashed and set aside for being filed in the wrong forum.
- Each party shall bear its own costs.
02
Material facts
Parties
David Msumba
ApplicantTANESCO
Respondent03
Procedural history
Posture
Labour Revision / Ruling on Preliminary Objection
04
Questions and positions
Legal issues
- 01
Whether the CMA and the High Court have jurisdiction over disputes involving public servants before exhaustion of remedies under Section 32A of the Public Service Act
- 02
Whether the application should be struck out or dismissed
Party arguments
- Applicant
- Conceded to the preliminary objection but requested the application be struck out instead of dismissed to allow future determination in the appropriate forum.
- Respondent
- Raised a preliminary objection on jurisdiction, arguing that the applicant, as a public servant, must exhaust remedies under Section 32A of the Public Service Act before approaching labour forums.
05
Court’s reasoning
Legal principles
- 01
general legal practice and referenced statutory framework
Matters filed in a forum without jurisdiction should be struck out, not dismissed, if the applicant has other remedies available.
06
Ratio, limits and disposition
Ratio decidendi
The court and the CMA lack jurisdiction as the applicant, being a public servant, must first exhaust remedies under Section 32A of the Public Service Act; therefore, the application is struck out rather than dismissed to preserve the applicant's right to pursue the claim in the proper forum.
Obiter and limits
- Dismissal would bar further claims, but striking out preserves the applicant's rights.
Court disposition
application struck out
- The application is struck out.
- The CMA matter is quashed and set aside for being filed in the wrong forum.
- Each party shall bear its own costs.
Source and reliance status
TANZLII · 23 September 2022
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
TANZLII
Judgment· 23 September 2022
IN THE HIGH COURT OF TANZANIA
LABOUR DIVISION
AT PAR ES SALAAM LABOUR REVISION NO. 263 OF 2021 Arising from the decision of the Commission for Mediation and Arbitration of DSM at Temeke (Hon. Makidadi: Arbitrator) dated 24h day of May 2021 in Labour Dispute No. CMA/DSM/TEM/704/2018 DAVID MSUMBA ....................... APPLICANT
VERSUS TANESCO................................................ RESPONDENT
RULING K. T. R. MTEULE, J 12th September 2022 & 23rd September 2022 This Revision application emanates from the ruling of the Commission for Mediation and Arbitration of Dar es Salaam, Temeke (CMA) in Labour Dispute No. CMA/DSM/TEM/704/2018. This court has been asked to call for records, revise and set aside the ruling of the CMA. The application is confronted by a Preliminary Objection raised by the Respondent to challenge the jurisdiction of the CMA and that of this court. The preliminary objection is premised on the fact that this matter being filed against TANESCO which is a public corporation, the applicant is a public servant and he has to exhaust the remedies provided under Section 32 A of the Public Service Act, prior to lodging any matters vide the labour laws. i The applicant did not object the gist of the preliminary objection. Although the applicant concedes to the preliminary objection, he prayed for the court not to dismiss the application but to strike it out to allow future determination through the appropriate forum. Having considered the applicants submission and prayer I have a question to determine as to whether this application needs to be struck out or dismissed. Although it is agreed by the parties that this court and the CMA lacks jurisdiction, the matter is not conclusive. The lack of jurisdiction is due to the lodgement of the matter in a wrong forum.
In law, dismissal renders a matter to have effect of being finally concluded. In this matter, the applicants have more options to continue with pursuing his rights. I agree dismissal will bar more claims in respect of this matter. I agree with the applicant that striking out is the appropriate measure for parties who still have chance in law to proceed with the claims. The instant application is therefore struck out and the matter in the CMA is quashed and set aside for being filed in wrong forums. Each party shall bear its own cost. It is so ordered. Date at Dar es Salaam this 23rd Day of September 2022.
M
KATARINA REVOCATI MTEULE
JUDGE 23/09/2022 2
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