CIVIL APPEAL NO 457 OF 2021 GANJAGA LAMECK KAFWIMBA VS SCANIA TANZANIA LIMITED

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MKUYE. J.A.. MWAMPASHI. J.A And NGWEMBE. J.A.^ CIVIL APPEAL NO. 457 OF 2021 GANJAGA LAMECK KAFWIMBA................ ............................. APPELLANT VERSUS SCANIA TANZANIA LIMITED............................. ............... RESPONDENT [Appeal from the Judgment and Decree of the High Court of Tanzania, (Labour Division) at Dar es Salaam] ( Nverere, J.^ dated the 21st day of April, 2016 in Revision Application No. 172 of 2015. JUDGMENT OF THE COURT 25thOctober & 6th November, 2024 MWAMPASHI. J.A.: This is an appeal against the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam (the High Court), in Revision Application No.172 of 2015 dated 21.04.2012. In the said decision, the High Court confirmed the decision by Commission for Mediation and Arbitration at Dar es Salaam (the CMA) in Labour Dispute No. CMA/DSM/MAL/IR.5/2005/733 dated 18.03.2015, which dismissed the appellants' claim for subsistence expenses against the respondent. The genesis of the instant appeal, as gathered from the record of appeal, is as follows: The appellant, Ganjaga Lameck Kafwimba was employed by the respondent, Scania Tanzania Limited, until on 14.12.1995 i when his service came to an end by an early retirement. Aggrieved, the appellant successfully complained before the defunct Industrial Court of Tanzania (the ICT) vide Trade Dispute No. 03 of 1997. The ICT awarded him six months salaries in lieu of notice, mileage allowance and repatriation costs. That was on 04.12.1997. Dissatisfied with the award, the appellant decided to challenge it by way of judicial review. He thus, filed in the High Court, Miscellaneous Civil Application No. 21 of 1998 seeking orders of certiorari and mandamus. However, the said application was struck out on 07.08.2003 for want of prosecution. The application for judicial review having been struck out, the appellant decided to execute the ICT award by filing Miscellaneous Application No. 22 of 2003 for execution of the award and on 07.01.2004 he was paid his entitlements including repatriation expenses in accordance with the award. The execution of the ICT award did not mark the end of the game. The appellant filed Employment Cause No. 117 of 2005 before the Resident Magistrate's Court of Dar es Salaam at Kisutu against the respondent. His claim was for subsistence allowance at the rate of TZS. 12,480/= per day from 14.12.1995 when he was terminated to 07.1.2004 when the ICT award was executed and repatriation expenses paid. The basis for his claim was that he was forced to remain in the city waiting for repatriation expenses to be paid to him. The claim was however, dismissed on 15.02.2008 on the ground that the claim had been conclusively adjudicated by the ICT in Trade Dispute No. 03 of 1997. On appeal to the High Court vide Civil Appeal No. 84 of 2008, it was found that the Resident's Magistrate Court had no jurisdiction to entertain the suit based on labour dispute. The proceedings of the Resident's Magistrate Court were thus, quashed for being a nullity and its decision was set aside. Undaunted, after the proceedings and decision of the Resident's Magistrate Court had been quashed and set aside, the appellant, vide Labour Dispute No. CMA/DSM/MAL/IR.5/2005/733 referred his claim to the CMA claiming for subsistence allowance for the period he was kept waiting to be repatriated plus interest. In its decision dated 18.03.2015, the CMA found the appellant's claims devoid because the delay for payment of repatriation expenses was caused by the appellant himself when he unsuccessfully decided to challenge the ICT award. Further, it was found by the CMA that, the claim was barred by the doctrine of res judicata in the sense that subsistence allowance ought to have been claimed in Trade Dispute No. 03 of 1997 before the ICT. For that reason, the appellant's claim was thus, dismissed. The dismissal of the appellant's claim by the CMA was confirmed by the High Court which agreed with the CMA that the claim for subsistence allowance was res judicata. At this juncture, it should also be pointed out 3 that, the central issue in the Application for Revision before the High Court was whether the appellant's claim before the CMA was res judicata or not. This, as we have alluded to above, was answered in the affirmative. The decision by the CMA that the appellant's claim was barred by the doctrine of res judicata was upheld by the High Court. Before the High Court, the issue of the appellant being the cause for the delay in repatriating him, did not feature. In the instant appeal, as alluded to at the beginning, the appellant seeks to challenge the decision of the High Court. According to the memorandum of appeal, three grounds of appeal, which can be paraphrased as hereunder, have been raised: 1. That, the High Court wrongly inclined to the application o frule 1 and 2 o f Order II o f the Civil Procedure Code (Cap. 33 R.E 2019) at the expense o f section 53 o f the Employment Ordinance (Cap. 366) and section 3 (1) o f the Law o f Limitation Act (Cap. 89 R.E 2002) which are applicable laws on repatriation. 2. That, the High Court erroneously categorized the claim as being res judicata without considering the nature, contents and effects o f the award o f the Industrial Court o f Tanzania in Trade Dispute No. 03 o f 1997. 3. That, the High Court erred in law and facts by failing to address each and every issue framed for determination thus arriving at the wrong decision. When the appeal came before us for hearing, the appellant appeared in person unrepresented whereas, Ms. Glory Vena nee, learned advocate, represented and appeared for the respondent, In terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the parties had filed written submissions for and against the appeal and at the hearing, they both adopted their respective submissions to form part of the brief oral submissions they made before the Court. We think we should begin with ground 3 whereby it is being complained that the High Court did not addressto each and every issue framed for determination. In this regard, our first observation is that neither in his written submissions nor in his oral arguments, did the appellant address ground 3. This, to our considered view, has no other meaning than that the ground was abandoned. On the other side, it was submitted for the respondent that the ground is devoid of merit because though the High Court properly considered and determined the relevant issue that arose from the statement of material facts, issues for determination were not framed. It was also submitted that under rule 24 (3) of the Labour Court Rules, 2007 G.N No. 106, the appellant was required to clearly and concisely set out in the affidavit filed in support of the applicationfor revision,legal issues arising from material facts of the case, but he didnot do so. Itwas insisted that, as there was no legal issue which was stated and suggested by the appellant for the determination by the High Court, it cannot therefore, be complained that the High Court did not address and determine each and every issue. On our part, we totally agree with the respondent that, ground 3 is devoid of merit. The High Court cannot be faulted to have failed to determine each and every issue while, as rightly argued for the respondent, the High Court properly dealt with and determined the only issue that could be derived from the statement of material facts, to wit; whether the appellant's claim for subsistence allowance was res judicata or not. Furthermore, the appellant who had an obligation to clearly state what were the issues he desired the High Court to determine, did not do so. Rule 24 (3) of the Labour Court Rules, 2007 G.N No. 106, provides that: "The application shall be supported by an affidavit, which shall dearly and concisely set out- (a) Statement o f the material facts in a chronological order; (b) A statement o f the legal Issues that arise from the material facts and (c) The reliefs sought [Emphasis added] According to the affidavit in support of the application appearing at page 35 to 39 of the record of appeal, the appellant only set out the statement of the material facts and the reliefs sought. He did no set out any statement of legal issues as required by the law. The appellant can therefore, in the first place, not complain that the High Court did not determine each and every issue. Further, as we have alluded to above, the only issue arising from the material facts on the application of the doctrine of resjudicata was dealt with and determined by the High Court. Ground 3 of the appeal is thus, baseless and it is accordingly dismissed. Embroidered in both ground 1 and 2 of the appeal, is a single complaint in which the High Court is being faulted for upholding the CMA's conclusion that the appellant's claim for subsistence allowance was res judicata. As we have alluded to earlier, in dismissing the appellant's claim for subsistence allowance, one of the reasons given by the CMA, was that the appellant had been the cause of the delay in the realisation of the ICT award, for he had sought to challenge the award before the High Court. This reasoning by the CMA, as we have pointed out above, did not form the basis of the Application for Revision before the High Court. The only issue raised before the High Court, as it is also in the instant appeal before us, was on the application of the doctrine of res judicata, that is, whether the appellant's claim for subsistence allowance before the CMA was resjudicata or not. In his lengthy written submissions comprised in 19 pages, the appellant, after making a detailed historical background of the case, has repeatedly submitted that his case before the ICT was quite different from the claim he made before the CMA. It was submitted that, the fact that the claim before the CMA for subsistence allowance arose from the ICT award following the delay in execution of the award, did not render the claim before the CMA resjudicata. It was insisted that, the claim for subsistence allowance before the CMA resulted from the delay by the respondent in settling the ICT award. The claim could not be contemplated and had not accrued at the time the ICT award was being issued. That being the case, the same could not be included in the dispute before the ICT, it was submitted. The High Court holding that the issue of subsistence allowance ought to have been brought up in the dispute before the ICT and that the same cannot be re-litigated on a fresh suit as it renders the matter res judicata, was thus, strongfy faulted by the appellant for being misconceived and erroneous. It is submitted further in the written submissions that the appellant's claim for subsistence allowance was unjustifiably denied by the wrongful application of the doctrine of res judicata because according to the law, subsistence allowance is part and parcel of repatriation expenses which, in the instant case, had been awarded to the appellant by the ICT. In support of the argument that subsistence allowance is part of repatriation expenses and further that the appellant was entitled to be repatriated and paid subsistence allowance while waiting to be repatriated, the Court was referred to its decision in Paul Yustus Nchia v. National Executive Secretary Chama cha Mapinduzi and Another, Civil Appeal No. 85 of 2005 and that of the High Court of Tanzania in Mathias Syereye v. TAZARA Construction Unit, Civil Appeal No. 50 of 2004 (both unreported). It was finally submitted for the appellant that the claim for subsistence allowance arising from the respondent's delay in repatriating the appellant was not res judicata and further that the same could not have been made one of the reliefs in the matter before the ICT because by then it could not be contemplated that there would be a delay in repatriating the appellant. The appellant prayed for the appeal to be allowed insisting that under the circumstances of this matter, the doctrine of resjudicata was not applicable and that the High Court erred to dismiss the Revision on that ground. The appeal was strongly resisted by the respondent for being baseless. In the written and oral submissions made by Ms. Venance, it was argued that the CMA and the High Court did not err in dismissing the appellant's claim for subsistence allowance for being res judicata. Ms. Venance submitted that the delay to settle the ICT award was not caused 9 by the respondent but by the appellant himself who was discontented by the award and decided to challenge it before the High Court. The Court was referred to section 53 (4) of the repealed Employment Ordinance Cap 366 R.E. 2002 which was in operation by then, where it was provided that the employer shall not be liable for subsistence allowance expenses in respect of any period during which the repatriation of the employee has been delayed by the employee's own choice. Regarding the application of the doctrine of resjudicata to the case at hand, it was submitted by Ms. Venance that the appellant having been awarded repatriation expenses under which subsistence allowance was part and parcel, by the ICT, then, the claim for subsistence allowance ought to have been raised in the application for execution of the award of the ICT and not by claiming the same in a separate suit before the CMA. She pointed out that the issue of subsistence allowance was conclusively determined by the ICT and the same issue could thus, not be raised again in the labour dispute before the CMA. Furthermore, reliance being placed on the case of Kamunye & Another v. The Pioneer General Assurance Society Ltd [1971] EA 263, it was argued that the doctrine of res judicata applies not only to points which the first court was actually required to adjudicate but to every point which properly belongs to the subject matter and which the parties, exercising reasonable diligent might bring forward at that time. Ms. 10 Venance did therefore pray for the appeal to be dismissed because the two lower courts did not err in holding that the appellant's claims for subsistence allowance were resjudicata. In tackling the central issue for our determination in the instant appeal, that is, whether the appellant's claim for subsistence allowance before the CMA was resjudicata or not, our starting point is the observation that, among the reliefs awarded by the ICT to the appellant, was for him, the spouse and 4 children to be repatriated to his place of domicile at Majita Musoma. This award was in accordance with section 53 (1) of the then Employment Ordinance, Cap 366. Further, under section 53 (3) (b) of the said law (now section 43 (1) (c) of the Employment and Labour Relation Act, Cap 366 R.E. 2019) repatriation expenses include subsistence expenses or rations during the period, if any, between the date of termination of the contract and the date of repatriation. In addition, the Court in the case of Paul Yustus Nchia (supra), construed the word "repatriation" to mean as follows: "The word "repatriation" has not been defined in Cap. 366, but we can get its gist in subsection (3) o f Section 53 quoted above. It includes payment of "subsistence expensesTherefore, subsistence aliowance is payable to an employee upon repatriation, following li termination o f employment to the former employee's place o f engagement” [Emphasis added] In his submissions, the appellant persistently and rightly so to our view, argued that his claim for subsistence allowance before the CMA was not a new claim. He maintained that the claim had been determined and awarded by way of repatriation award by the ICT. That notwithstanding, he however, was of a strong view that, since the claim for subsistence allowance based on the delay in repatriation could not be made until when the respondent delayed in repatriating him, then there was no way such allowance could have been claimed in the Trade Dispute before the ICT. To his view, the only way for him to claim for the relevant subsistence allowance was by filing the separate suit before the CMA. Under these circumstances, it was the appellant's strong argument that the doctrine of resjudicata was not applicable. With due respect to the appellant, repatriation having been awarded by the ICT, there existed a right course for him to take in claiming subsistence allowance. As also submitted by Ms. Vena nee, the appellant was supposed to claim for the said allowance in his application for execution of the ICT. It is a settled position of the law that, under the circumstances of this case, the appellant was not allowed to raise the claim for subsistence allowance in separate new proceedings while he had an opportunity to do so in former proceedings during when the execution of the ICT award proceedings were being conducted. This is what section 38 (1) of the Civil Procedure Code [Cap.33 R.E. 2019] provides, thus: "AH questions arising between the parties to suit in which the decree was passed, or their representative, and relating to the execution, discharge or satisfaction o f the decree, shaii be determined by the court executing the decree and not by a separate suit" The position that the executing court has powers to deal with any question relating to execution of a decree or award, was restated by the Court in the case of Hassan Twaib Ngonyani v. Tanzania Pipeline Limited (Civil Appeal No. 2011 of 2018) [2022] TZCA 88(2 March, 2022: TanzLII), where it was stated that: "Under section 38 (1) o f the CPC, Mr. Kahendaguza is correct, the executing court enjoys exclusive jurisdiction to deal with any question relating to execution, discharge and satisfaction o f the decree. Where the resolution o f any o f the questions requires ascertainment o f controversial factual issues, the executing court is entitled, under section 38 (2) o f the CPC even to convert execution proceedings into a suit In our view, therefore, in so long as the claim is captured by the decree, 13 whether expressly or constructively, it is within the power o f the executing court to complete the same" [Emphasis added] In the final analysis, for the above reasons and observation, we find the appeal devoid of merit. The two lower courts did not err in concluding that the appellant's claim before the CMA was resjudicata. Accordingly, the appeal is dismissed in its entirety. We make no order as to costs. DATED at DAR ES SALAAM this 4th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered on this 6th day of November, 2024 in the presence of Ms. Glory Venance, learned counsel for the Respondent and