ecolab east africa tanzania ltd vs wilfred hokororo others 2008 tzhc 227 5 september 2008

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL APPEAL NO. 133 OF 2005 CORAM: MLAY.J.. SHANGWA, J., MIHAYO. J. (Originating from Industrial Court of Tanzania at Dar es Salaam Trade Inquiry No. 80 of 2002 - Honourable C.E.R. William Deputy Chairperson) ECOLAB EAST AFRICA (T) LIMITED........... APPELLANT VERSUS WILFRED HOKORORO & 19 OTHERS___RESPONDENTS Date of last order - 8/9/2006 Date of Judgment - 5/9/2008 JUDGMENT SHANGWA. J. This appeal arises from the decision of the Industrial Court of Tanzania delivered by Madame C.E.R. William Deputy Chairperson on 16.8.2004 in Trade Inquiry No. 80 of 2002 in which the said Chairperson dismissed the Respondents' case but decided that the Appellant should pay each of them other relief of twelve months salary in a similar sum that each of them was receiving per month in 1998 when the Appellant terminated them from employment. The Appellant was aggrieved with the said decision and appealed to this court. Before the Industrial Court, the Respondents' complaint was that the Appellant terminated them from employment unlawfully for the following three reasons:- 1. That TUICO branch which is their workers Union was not involved. 2. That the principle of FILO (First in last out) was not complied with. 3. That the members of TUICO branch were not given leave by the Labour Officer to participate in the decision to terminate them. Following their complaint based on the above reasons, the Respondents prayed the Industrial Court for the following reliefs:- 1. To set aside the Appellant's decision of rendering them redundant. 2. To order the Appellant to re-engage them and pay them their salary in arrears, leave allowance plus other dues with effect from 30.4.1998. 3. Interest on salary arrears and other dues at the rate of 31% per annum with effect from 30.4.1998, 4. Any other relief that the Industrial Court would deem fit. Earlier before instituting their complaint in the Industrial Court, it was agreed between the parties that the Appellant should pay the Respondents the following terminal benefits 1. One month basic salary in lieu of notice. 2. Leave payments. 3. Severance allowance of 5%. 4 4. Bus fare from Dar-es-Salaam to their respective homes. 5. Bonus. 6. One month salary of years of service. 7. Repatriation expenses. After the said agreement, the Appellant deposited Tshs. 17,472,000/= with the Registrar of the Industrial Court for payment to the Respondents. It appears that this amount has not yet been paid to them. In the course of time, the Appellant filed an application in the Industrial Court for stay of execution of the award pending the hearing of this appeal and his application was granted on 22.12.2005. This appeal was lodged on 19.7.2005. There are two grounds of appeal which are contained in the Memorandum of Appeal. These are as follows:- 5 1. That after the learned Deputy Chairperson had found that the termination of the Respondents was legally proper, she seriously misdirected herself in law and fact in gratuitously and without basis awarding them twelve months salary. 2. In the absence of legally justifiable and proven basis, the learned Deputy Chairperson had no jurisdiction to grant a gratuitous award of twelve months salary to the Respondents. On 19.7.2006, learned counsel for the Respondents, Mr. Bashaka filed a notice of preliminary objection to the Appeal saying that the Appeal is incompetent on the following grounds and we quote:­ " That the grounds of appeal and proposed orders to be asked for are not in consonance with the Industrial 6 Court's judgment o f 1st July, 2005. They are in consonance with the judgment o f lt fh August, 2004 against which no appeal has been preferred." The said preliminary objection was not argued by the parties for lack of this Court's order to do so. What was argued is the Appeal itself following this Court's order dated 24.7.2006 to have it disposed of by way of written submissions. Notwithstanding the fact that the preliminary objection was not argued, we do not think that this court is in a position to deal with this appeal against which the preliminary objection was lodged. The reason which makes us think so is that before lodging this appeal, the Appellant did not apply to the Industrial Court for revision of the Deputy Chairperson's judgment under S. 28 (1) of the Industrial Court of Tanzania Act [cap. 60 R.E. 2002] so that the error/misdirection/mistake complained of by the 7 Appellant to have been committed by the Deputy Chairperson in her judgment is corrected and a final decision or award of the Industrial Court is given. Section 28 (1) of the Industrial Court of Tanzania Act [Cap. 60 R.E. 2002] provides thus and we quote:- "The Court shall have power, In any proceeding determined before it, on application being made in that behalf by any party or o f its own motion, if it appears that there has been an error involving injustice, revise the proceedings and make such decision or award in the matter as it sees fit; save that no decision or award shall be made by the Court in exercise of its jurisdiction under this subsection, 8 increasing the liability of any party or altering the rights of any party to his detriment, unless such party shall have first been given an opportunity o f being heard." In this case, the Deputy chairperson's award of twelve months salary to each Respondent as any other relief is extraneous and inconsistent to the reliefs which were sought by the Respondents before the Industrial Court. In our view, such kind of award constitutes an error material to the merit of the dispute and it involves injustice. As the Appellant did not make any application in the Industrial Court to revise the said award, this appeal is pre­ mature. For these reasons, we strike it out and remit the case to the Industrial Court for its action under S. 28 (1) (2) I 9 of the Industrial Court of Tanzania Act [Cap 60 R.E. 2002]. We make no order as to costs. DATED and delivered this 5th day of September, 2008. 3.1. Imlay - J ju d ^t " /\3—sr-—- Do / - y A. SHANGWA JUDGE JUDGI