20120713 TZHC Dar es Salaam

! I

IN THE HIGH COURT OFT ANZANIA

LABOUR DIVISION OF THE HIGH COURT i AT DAR ES SALAAM REVISION NO. 10 OF 2011 EPHRA.tNl·JoRAM ........................ APPLICANT ~ ~ .. '.' iAl- tt..~:'7 .. ;1, • e,. ~---:vt:RSUS · ,i ' ":-: DIRECTOR TANGA CEMENT CO. LTD ........ RESPONDENT i i RULING Date: 27/4/2012 & 13/7/2012 S.A.N. Wambura,J A brief back ground of this matter is that in 2005 a mutual agreement was entered between the present parties. However in 2006 he filed a matter at Kisutu Resident Magistrate's Court which ruled that it h~d no jurisdiction to idetermination the matter. From Kisutu Resident Magistrate Court, for unknown reasons the applicant went to llala District Court which also said it had no jurisdiction. The matter was thus filed at CMA sometime in 2010. It was struck out for being unprocedurally filed as it had to be sent to CMA by the Labour Commissioner, thus this application. ,;,• The iss.ue before this court iin respect of th~ preliminary objection raistd is whether the applicatioh ts resjudicata or not. Both Councels have submitted on definitions as to what actually can be said to be res judicata. Accordingly to the definition in Black Law Dictionary it is an issue that has been definitively settled by judicial decision, an affirmative defense baring the same parties from litigating a second suit on the same claim, any other claim arising from the same transaction or series of transaction. It

is obvious that for a matter to be resjudicata it has to be of similar cause of action and concerhi~g similar parties .. In the case of GERARD CHUCHUBA Vs. DIRECTOR, ITANGA SEMINARY [2002] TLR 213 it was held that before the doctrine of res judicata is applied the following essential elements I ! i ,· must be shown to exist 'that the judicial decision was pronounced by a court of competent jurisdiction, th~t the subject matter ~nd the issues decided are substantially the same as the issues in the subsequent suit, that the judicial decision was final, and that it was in respect of the same parties litigating under same title. In the case of MVITA CON&i-Rfit"tnoN ,; ,; ..... . ·~! COMPANY Vs. TANZANIA HABOURS ~ ~.,' _., . AUTHORITY [2000] TLR 22 the preliminary objection was dismissed as the case had been brought before .two different judgesi at different times and on different matters. [Emphasis is mine] In the case of DR. MWIKWABEH H. MAGERE Vs. ATTORNEY GENERAL [2001] TLR 286 the suit was held to be proper and not res judicata as in the earlier suit the plaintiff sued for balance of unpaid transfer ;3llowance while in that matter he was suing for wrongful dismissal and I reliefs arising there from which were isaid to constitute two different causes of action:. [Emphasis is again mine] I have perused the documents attached herein being a copy of the plaint that was filed

at Kisutu Resident Magistrate's Court sometime in 2004 where the claims were in respect of termination. The matter was accordingly settled and the applicant was paid a cheque worth TShs. 1 1,349,946/= on 18/3/2005. In the matter at hand the applicant is claiming similarforminal benefits. ~~ However as, held in GERALD CHUCHUBA'S case {Supr'a) apart from similarity of parties and claims therein the court that issued the decision has tb be a court of competent jurisdiction. One thus wonders whether the agreement entered in between the parties was recorded by a court of competent jurisdiction. I would say yes as by then iKi:sutu Resident Magistrate's Court had jurisdiction to entertain the same. Moreover the agreement which was mutually arrived at was legally binding and has been fully executed. It would have been different if th_e matter was of non execution which would have been properly been filed in the Resident Magistrate's Court. However the matter was refilled at that court in 2006 claiming the same terminal benefits. The issue was however not dealt with for 2 . I' as stated earli_er it was alleged that;the court did not have jurisdiction to entertain that matter. Since then the applicant has been tirelessly knocking upon doors of various courts and CMA only to be told he is nolwelcome. It is a pity. However I am convinced to uphold the preliminary objection raised as the

matter had been •ii(' amicably concluded way bc1ck in 200~. and i~J~_resjudicate. As was held in the case of KARSHE ~·'<¥.,-,._ .· Vs.UGANDA TRANSPORT COMPAN-Y-;(1967)°-l:.it774, courts are not oblivious of the cordial f ' principle that the doctrine of res jl.Jdicata is not a technical doctrine applicable only to records. It is a fundamental doctrine of all courts that there must be an end to litigation as a matter of public policy. Moreover the matter at CMA was not heard ·and decided on merit for want of proper filing · procedures matters find their way to the Labour Court after they have complied with section 42(5) of the written Laws (Miscellaneous Amendments) No.2/2010 and not by statement of a complaint. . , ' I Hearing of the application will be a mere academic exercise as no award or certificate has been issued by CMA. For these reasons the application is accordingly dismissed. S.A.N.Wambura

JUDGE I 13/7/2012 ' . ! i . ! . 3