NA TZHC Arusha

IN THE COURT OF APPEAL OF TANZANIA ATARUSHA (CORAM: NSEKELA, l.A., KIMARO,l.A.,And MBAROUK, l.A.) CIVIL APPEAL NO. 120 OF 2008 EDWARD LENGANASA .................... ..................... ... APPELLANT VERSUS THE TRUSTEES OF TANZANIA NATIONAL PARKS (TANAPA) .............................. RESPONDENT (Appeal from the ruling and order of the High Court of Tanzania at Arusha) (Sheikh, l.) dated the 25 th October, 2007 in Civil Case No. 7 of 2007 JUDGMENT OF THE COURT 9th & 18th February, 2011 KIMARO, J.A.: The appellant was employed by the respondent from 12th December 1979 to 8th April, 2002 when his employment was terminated. He started as an Accounts Clerk, but various trainings inside and outside the county earned him various promotions. At the time his employment was terminated, he was a Principal Park Warden Grade 11. Discontented by the 1 termination, the appellant though legal services of M/5 IMBORU CHAMBERS filed a suit in the High Court of Tanzania praying for general damages, special damages, interest and costs. Mr. John Umbulla learned advocate represented him. On the part of the respondent he was represented by Mr. Ezra Mwaluko learned advocate. He raised a preliminary objection to the effect that the appellant's claim was essentially a labour dispute, and the proper forum for adjudication of the matter was not the High Court of Tanzania but the Industrial Court. The trial High Court upheld the objection.· The learned trial judge, in upholding the objection said: "By challenging the legality of the termination, and claiming salaries until retirement it seems to me that the plaintiff is not only claiming that he is still legally an employee of the_ defendant , and that his status is that of an employee of- the - of the plaintiff, but indirectly claiming rein-statement without loss of salary and benefits. Clearly the dispute is connected with the "employment or non-employment" of the plaintiff by the defendant as defined in section 3 of the Act and hence in my view a trade dispute. I am inclined to agree with Mr. 2 \ ' Mwaluko learned counsel that in the-light of the decision of the Court of Appeal of Tanzania in the Tambueni case this court has no original jurisdiction to entertain this suit which falls within the definition of trade disputes under S 3 of the Act." Aggrieved by the decision of the High Court, the appellant has filed this appeal. The appellant had initially filed five grounds of appeal, but on the way he abandoned ground three thus leaving four grounds which are: 1. That the learned trialjudge erred in law in failing to take cognizance of the distinction between a labour dispute on the one hand and a trade dispute on the other. 2. That the Hon. trial judge erred in law in failing to appreciate the significance of the words "in employment of that employer" as appearing in the definition of the term trade dispute. 3 I ' 4. That the-·1ea:r:f1e_d trial judge erred in law in failing to hold that the . . ··o - Court of Appeal decision in Tambueni's case was distinguishable having dealt with redundancy and not breach due to wrongful termination of the contract of employment. 5. The Hon. trial judge erred in law in failing to hold that the suit was properly before the High Court as the Industrial Court had no jurisdiction to award general damages claimed by the appellant in his plaint. At the hearing of the appeal, the same advocates who appeared for the .parties in the trial High Court appeared before us. The learned advocates took advantage of the Court of Appeal Rules, 2009, Rule 106, and filed written submissions. Since the appeal was filed long before the Rules came to effect, the learned advocates for an obvious reason, could not comply with the time limit allowed for filing the submissions. That also explains the omission by the advocates to cite the relevant rule allowing them to file the submission. On our part, we did not consider it reasonable under the circumstances, not- to accept the submissions, because Rule 4(1) of the Court Rules, 2009 saves the situation. At the 4