20110920 TZHC Moshi

f lI IN THE IGH COURT OF TANZANIA AT MOSHI (DC) CIVIL APPEAL N0.4 OF 2010 ORG. CIVIL CASE N0.42/2009, MOSHI DISTRICT COURT HAMIDA JUMA ........................................ APPELLANT VERSUS 1. AFRICA MUSLIM AGENCY NORTHEN ZONE 2. REGISTERED TRUSTEES OF ..... RESPONDENTS AFRICA MUSLIM AGENCY TRUST JUDGMENT MAKURU, J: The Appellant, Hamida Juma being dissatisfied with the ruling and order made by Moshi District Court (Mkisi, RM) in Miscellaneous Application No. 42 of 2009 has preferred this appeal. Her main ground of appeal is that the trial magistrate erred in law and fact by holding that the trial court had no jurisdiction to entertain labour matters raised before the commencement of the new labour laws. A brief background of this appeal is as follows. In Employment Cause No. 7 of 2006 the Labour Office, Moshi filed a Report in the Resident Magistrate's Court, Moshi that the Appellant/Employee rendered her services with The DirectOr, African Muslim agency Northen Zone,. where she was employed as a matron between 13th July, 2004 and 14th January, 2006, when her services were terminated. It was alleged that 1 . .f ~j~ ~ ~ ·• i her claim against his employer was for payment of T.Shs. 2,832,912/= being terminal benefits. On the other side the Employer admits to have employed the Appellant effective from July, 2004 at a wage rate of T.Shs. 77,080/= per month and that her services came to an· end on 30 th December, 2005, instead of 14th January, 2006 as alleged by the Appellant. The suit could not be determined on merits as Mr. Maruma, learned counsel for the Defendant raised a preliminary objection on a point of law on misjoinder of parties. The preliminary objection was disposed of by way of written submission. Submitting on the preliminary objection, Mr. Maruma contended that the institution for which the Plaintiff/Appellant worked was registered and incorporated as The Registered Trustees of the African Muslims Agency Trust and not the African Muslim Agency, Northern Zone. The· District Court (Kasebele, RM) upheld the preliminary objection and ordered the Plaintiff to amend the plaint if she intended to proceed with the suit. It is on record that the Appellant filed the amended plaint in the District Court on 20/06/2008. On 03/07/2008 the Plaintiff/Appellant informed the court that she intended to appeal against the ruling which upheld the preliminary objection. The case was marked withdrawn as requested by the Appellant. By a letter dated 12/10/2008 addressed to the Resident Magistrate, Moshi the Appellant requested the court to proceed with Employment Case 2 No. 7 of 2006 as she was misled by other people to withdraw the said case. Vide a copy of the same letter she requested the High Court Moshi to withdraw the appeal. After receiving the letter, the District Court issued summons for the parties to enter appearance in court. On 22/10/2008, Mr. Maruma submitted that the Appellant cannot be allowed to proceed with the case at that stage, considering that she was the one who withdrew the case. He contended that what the Appellant could do in the circumstances was to open again or re-institute the case so that she can start afresh. The court agreed with Mr. Maruma's submission and the Appellant was advised accordingly. It seems the Appellant acted on the advise as she found her way back to the District Court following the Area Labour Officer's letter with Ref. No. MOS/PC/9/2006/12 dated 5th June, 2008 forwarding the Appellant's complaint. The letter was titled "AMENDED REPORT TO MAGISTRATE UNDER EMPLOYMENT ORDINANCE CAP 366". The Report was received by the Resident Magistrate's Court on 26/03/2009, and Employment Cause No. 1 of 2009 was commenced pursuant to the complaint filed. On 02/04/2009 the District Court ordered summons to be issued and served to the parties accordingly. The matter was dismissed on 23/04/2009 by the District Court (Massati, RM) for lack of jurisdiction as well as Res-judicata. It was the District Court's observation that: "This court lacks jurisdiction to entertain the employment case since 2dh December 2006 in 3 . ' ' accordance with Employment and Labour Relation \ Act;. G.N. No. 1 of 2007 and Labour Institutions Act;. No. 24 of 2005. This suit is (sic) instituted in 02/04/2009. " Again, the Appellant instituted Misc. Civil Application No. 42 of 2009 in the same Court. The same was .struck out on the basis that the District Court lacks jurisdiction to entertain Employment Cause since 20/12/2006 in accordance with the Employment and Labour Relation Act, G.N. 1 of 2007 and Labour Institution Act, 2004 as the Employment Cause was instituted on 02/04/2009. The application was struck out without costs and the Appellant was ordered to file the matter in a court which has jurisdiction. Hence, the Appellant filed this appeal as indicated earlier. Throughout the hearing of this case the Appellant was unrepresented while the First and Second Respondents were represented by Mr. -Maruma, learned counsel. When the appeal was called for hearing, being a layperson the Appellant prayed that this court consider her grounds of appeal filed in court. On the other hand, it was Mr. Maruma's submission that the trial court had no jurisdiction to entertain the matter as the same falls under employment matters which are under the Employment Ordinance, Cap 366 R.E. 2002 and that when the matter was filed in court the Employment Ordinance had already been repealed by the Employment and Labour Relations Act of 2004 whereby the same ··, th came into operation on 28 December 2006 by virtue on G.N. No. 1 of 2007. It was Mr. Maruma's submission that the Appellant ought to have gone to the Commission for Mediation and Arbitration, thereafter she could 4 have pursued the matter with the Labour Court under The Labour . \ t Institution Act which came into force on 1/2/2005 by virtue of G.N. No. 24 of 28th January, 2005. The issue for consideration is whether the trial court had jurisdiction to entertain labour matters raised before the commencement of the new law, my answer to this issue is in the affirmative that the court had Jurisdiction to entertain labour matter raised before the commencement of new laws. Paragraph 11 of the 3rd Schedule to the Employment and Labour Relations Act, Act No.6 of 2004 (hereinafter to be referred as Act) provides:- (1) Any offence committed under the repealed laws before the commencement of this Act shall be dealt with as if the repealed _laws had not been repealed. (2) Any claim arising under the repealed laws before the commencement of this Act shall be dealt with as if the repealed laws had not been repealed. (3) Any suit or other civil proceedings commenced before the commencement of this Act shall be dealt with as if the repealed laws had not been repealed. From the above provisions the ·trial court had jurisdiction to deal with this case as the Appellant's claim hinges on the termination affected by the Respondents on 28th January 2006. Thi§ was before coming into 5 force of the new labour laws as the Act came into operation on 28 th December 2006 vide G.N. No. 1 of 5th January 2007. In that regard, the trial court had jurisdiction to entertain the Appellant's claim under the provision of section 142 (1) of the Employment Act, Cap 366 R.E. 2002. The said section reads as follows: "142 (1) Every District: Magistrate (whether or not he is a civil magistrate) shall have jurisdiction, notwithstanding anything to the contrary in any Act or written law respecting the jurisdiction of such magistrate, in all cases or matters arising between employers and their employees and with reference to their relative rights and duties or to any matter or thing or offence for which provisions is made in this Act " Under section 2 of the Magistrates' Courts Act, Cap 11 R.E. 2002 "district magistrate" includes a resident magistrate. Thus, in this case a district magistrate includes the Resident magistrate. Furthermore, pertaining to matters which were in court before the coming into force of the Act, Paragraph 13 of the 3rd Schedule categorically states: ''Dispute not finalized in terms of the repealed laws within 3 years of the commencement of the Act shall automatically fall within the jurisdiction of the Commission, the Commission shall have power to refer 6 . the dispute to the Labour Court for decision. In I determining the dispute under the provision of this paragraph the substantive law at the time the dispute arose shall apply. " Paragraph 13 of the said Act was repealed and replaced by Written Laws (Miscellaneous amendments) Act, No. 11 of 2010 which required disputes which arose before the commencement of the Act to be governed by the old law which the Commission for Arbitration and Mediation and the Labour Court are the Labour Institutions vested with mandate to arbitrate or adjudicate disputes, as the case may be. In the event, the Appellant's claim fall under the ambit of the above provision as the Appellant was terminated on 28th January, 2006 as per her termination letter. Thus, the dispute is governed by the 3rd Schedule to the Act, as amended by Act No. 11 of 2010. The jurisdiction to entertain the dispute is governed by the old law, and jurisdiction to entertain the dispute is exclusively vested in the Commission for Arbitration and Mediation and the District Magistrate. As the district magistrate includes a resident magistrate and this matter was handled by the Resident Magistrate (Massati RM), the District Court Moshi, should return the dispute to the Labour Institution vested with jurisdiction to entertain and determine the dispute in terms of section 86 of the Act. For the above stated reasons, ''I allow the appeal to the extent provided above. I hereby nullify the entire proceedings and Ruling in 7 i i Employment Cause: No. 1 of 2009 and the subsequent orders as the District Magistrate had jurisdiction to entertain this matter. Considering the circumstances of the case, the Respondent is not to be blamed. I make no order as to costs. @-L C.W. MAKURU, JUDGE 20/09/2011 Court: Judgment delivered in court this 20 th day of September, 2011 in the presence of tne Appellant in person and Mr. Maruma, Advocate for the Respondents. C.W. MAKURU, JUDGE 20/09/2011 8