20111004 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 35 OF 2010 HASSAN SAID •••••••••••••• PLAINTIFF VERSUS TANRUSS INVESTMENT LIMITED t/a MOVENPICK ~OYAL PALM HOTEL ... 1 ST DEFENDANT BRAISON MOSHI .......... . 2ND DEFENDANT Date of last Order : 30/8/2011 -Date of Ruling 4/10/2011 RULING Shangwa, J. At paragraph one of the Written Statement of Defence, the defendants raised a notice of preliminary objection to the effec~ that this Court lacks jurisdiction to entertain the .. ma\ter in view of Section 94 (1) of the Employment and 2 Labour Relations Act as amended by the Written Laws (Miscellaneous Amendment) Act No. 8 of 2006. Counsel for the defendants, Mr. Mshukuma contended that the Main Registry of the High Court of Tanzania do not have jurisdiction to entertain a tortious matter arising from employment between the plaintiff and the defendants and that the Court which is vested with jurisdiction to do so is the Labour Division of the High Court. I wish to point out here that in actual fact, the suit was not filed by the plaintiff in the Main Registry of the High Court of Tanzania. It was filed in the District Registry of the High Court of Tanzania, Dar es Salaam Zone. Therefore, in my ruling, I will consider as to whether the District Registry of the High Court of Tanzania in which the suit was filed has jurisdiction to entertain the matter and 3 whether the Labour Division of the High Court has exclusive jurisdiction to entertain the matter between the parties. The plaintiff's claim against the defendants is based on the tort of false imprisonment, defamation and malicious prosecution. He is praying for general damages of Tshs. 200,000,000 /= to be paid by the defendants as a result of the tortious acts as above indicated. The facts in the main suit upon which the dispute between the parties is based are as fallows. That on 27 th September, 2009, the plaintiff was caught by the 2 nd defendant at Movenpick Royal Palm Hotel premises in unlawful possession of two chicken, chips, cooked potatoes and a pair of trousers worth Tshs. 69,000 4 the property of the 1st defendant. He was put under arrest by the Hotel Security guards. After being arrested, he was taken to the Central Police Station, Dar es Salaam from where he was taken to the Primary Court of Kariakoo and charged with the offence of theft c/s 265 of the Penal Code. His case was registered as Criminal Case No. 2623 of 2009. The said court found him not guilty. He was acquitted on 2 nd December, 2009 for lack of proof of the offence charged beyond reasonable doubt. It is not in dispute that the plaintiff Hassan Said was employed by the 1st defendant as waiter. It is not in dispute also that the second defend ant Braison Moshi who arrested the plaintiff was employed by the 1st defendant as security man and that the 1st defendant Tanruss Investment Ltd t/ a Maven Pick Royal Palm Hotel runs hotel business in Dar es Salaam city. 5 In support of his point of preliminary objection that the District Registry of the High Court of Tanzania has no jurisdiction to entertain a tortious matter arising from employment between the plaintiff and the defendants, counsel for the defend an ts relied on S. 94 ( 1) of the Employment Labour Relations Act No. 6 of 2004 as amended by the Written Laws (Miscellaneous Amendment) Act No. 8 of 2006 which provides as follows: " Subject to the Constitution of the United Republic of Tanzania, 1997, the Labour court shall have exclusive jurisdiction over the application, interpretation and implementation of the provisions of this Act and over any employment or labour matter falling under common law, tortuous liability, vicarious liability or breach of contract within the pecuniary jurisdiction of the High Court." 6 In my op1n1on, S. 94 (1) of the Employment and Labour Relations Act as amended by Act No. 8 of 2006 is not applicable to the facts of the case between the parties. Under the provisions of this Section the Labour Court has exclusive jurisdiction to do the following things: 1. To apply, interprete and implement the provisions of the Act. 2. To hear cases over any employment or labour matters which fall under common law, tortuous liability, vicarious liability or breach of contact within the pecumay jurisdiction of the High Court. The plaintiff's claim of general damages for false imprisonment, defamation and malicious prosecution is not based on his employment contract or labour terms. His claim is based on his personal sufferings and injury to his 7 character or reputation for having been arrested, imprisoned and prosecuted for the offence of stealing his employer's two chicken, chips, potatoes and a pair of trousers of which he was acquitted by the Primary Court of Kariakoo in Criminal Case No. 2623 of 2009. Therefore, the plaintiff is right in his submission that the case between him and the defendants is independent of the contract of employment and that it involves an independent tort. Counsel for the defendants also cited the case of the Labour Division of the High Court namely Dar es Salaam City Council V. Rafael Ruvakubusa - Revision No. 149 of 2008 (unreported) in which Madame Rweyemamu, J observed that the Written Laws (Miscellaneous Amendments) Act No. 8 of 2006 confers jurisdiction to the CMA and the Labour Court on matters, among others, of defamation arising in the context of employment. He said 8 that the decision of Madame Rweyemamu, J. is applicable to the facts of the case between the parties and is binding on this court. In my op1n1on, the facts of the case between the plaintiff and the defendants are distinguishable from the facts of the case in Labour Court Civil Revision No. 149 of 2008 Dar es Salaam City Council V. Rafael Ruvakubusa (unreported). Whereas in this case, the plaintiff was arrested and charged in Court with the offence of stealing two chicken, chips, cooked potatoes and a pair of trousers the property of his employer, in the Labour Court's case above mentioned, the Respondent's name was published in the local News Paper after he had been expelled from church services but the reasons as to why he had been expelled were not published. -,, 9 In addition to that, whereas the case of Dar es Salaam City Council V. Rafael Ruvakubusa was based on the contract of employment giving rise to a labour dispute, the case between the parties is not based on the con tract of employment. I hold therefore that the decision of the Labour Court Madame Rweyemamu, is not applicable to the facts of the case between the parties. In general, the decision of the Labour Division or of whatever Division be it the Land Division or Commercial Division of the High Court is not binding on the Main Registry or District Registry of the High Court. The decisions which are binding on both Registries are those of the Court of Appeal of Tanzania which is superior to the High Court. For the reasons I have given in this ruling, I hold that this Court has jurisdiction to entertain the matter between 10 the parties. Therefore, I overrule the Preliminary Objection with costs. JUDGE 4/10/2011 Delivered in open court in the presence of the plain tiff and Miss Shamte for 1st defendants this 4 th day of October, 2011. A.Shangwa JUDGE 4/10/2011