20100702 TZHC Dar es Salaam

1

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL APPEAL NO. 147 OF 2008 (Originating from ~uling and decree of the District Court of Morogoro (Msumi RM in Miscellaneous Applic~.~,ion No. 14 of 2008) HASSANI TWAIBU NGONYANI ... APPELLANTS VERSUS · · TAZAMA PIPELINES LTD . ·..... RESPONDENT Date of last order - 19/5/2010 Date of Judgment--2/7/2010

JUDGMENT SHANGWA, J. On 9th · September, 2008, counsel for the Appellant/Decree holder filed an appeal against the decision/Ruling/Decree of the District Court of Mo_rogoro Msumi, RM in Misc. Application No. 14 of 2008 delivered on 20/8/2008 in which Miscellaneous Employment Cause No. 11 of 2008 was struck out. ) 2 In . his Ruling, Msumi RM held that Miscellaneous Employment Cause No. 11 of 2008 was misconceived. He agreed with TAZAMA PIPELINES LTD that HASSAN TWAIBU NGONYANI was not entitled to further claims as he had been paid his terminal benefits which were in accordance with the decision of the Conciliation Board. On 28th October, 2008, counsel for the Respondent Kariwa and Co; Advocates filed a Notice of preliminary objection against the Appeal on grounds that it contravenes the law governing appeals from orders. In their written submissions, counsel for the Respondent gave a short background of the case between the parties and stated that the order of Msumi, RM in which he refused to allow the Application for execution is not appealable in law. They contended that under 0. XL of the Civil Procedure Code, the order of _the Morogoro Resident Magistrate's Court which struck off the Appellant's case namely Miscellaneous Employment Cause No. 11 of 2008 is not among the appealable j 3 orders listed under 0. XL r. 1 of the Civil Procedure Code. They said that the proper course

of action that ought to have been taken by the Appellant was to apply for revision so that this court could call for record of the court of the Resident Magistrate at Morogoro and satisfy itself to the validity, legality and correctness of the Magistrate's order of striking off Miscellaneous Employment Cause No. 11 of 2008. They prayed for the dismissal of the Appellant's appeal with costs. Counsel for the Appellant Mr. Auda and Co; advocate made a ·lengthy submission in which they contended that counsel for the Respondent was not specific as to which rule of 0. XL of the Civil Procedure Code which has two Rules is relying upon. They contended that the order of the Court of the Resident Magistrate striking out the Appellant's case amounts to a decree and that therefore it is appealable. They cited the case of Attorney General V. Rev. Christopher Mtikila Civil Appeal No. 20 of 2007 (unreported) in which the Court of Appeal of Tanzania ''f 4 ,I held that in substance the drawn order which had been extracted from the High Court's decision was in law a decree and not an order. Furthermore, counsel for the Appellant contended that even if this court finds that the order of the District Court is not appealable, it still has the power to revise it suo motu. In support of their' contention, they cited the case of Emir Wilson Daudi Vs. TPB Civil Appeal No. 76 of 2007 in which Makaramba,

J expressed the same view. The issue to be decided by this court is whether or not the Ruling of the Court of Resident Magistrate at Morogoro given by Msumi, RM in Misc. Application No. 14 of 2008 delivered on 20/8/2008 is appealable. It is common ground that the Respondent TAZAMA PIPELINES LTD filed Miscellaneous Application No. 14 of 2008 in the Court of Resident Magistrate at Morogoro requesting the Court to make investigation and findings on the validity of Form CC10 filed in the said court on 3/3/2008 -,,. ' . ' 5 and to satisfy itself as to the validity of the decree if any of whose execution was being sought. At paragraph 6 of the affidavit of Deogratius Benedict Msemwa in support of the aforesaid Application, it is averred that the claims by Hassan Twaibu Ngonyani listed on Form CCl0 and which purport to be founded on voluntary Agreement have no justification as the TAZAMA PIP.ELINES LTD had already paid him his terminal benefits of Tshs.26,385,953.05 as ordered by the Conciliation Board. As I have already pointed out, Msumi, RM made a finding that the Appellant Hassan Twaibu Ngonyani had been paid his terminal benefits and that what he was paid was in conformity to the decision of the Conciliation Board and that Miscellaneous Employment Cause No. 11 of 2008 in which the Appellant Hassan Twaibu Ngonyani was making further claims was misconceived. The Appellant was

aggrieved by the said finding and appealed to this court. With respect to counsel for the ' ... 6 Respondent, I find it ridiculous for them to contend in their preliminary objection that the Appeal filed by the Appellant in this court against the Ruling of the Court of the Resident Magistrate Msumi, RM contravenes the law . on grounds that it is not appealable. In my considered view, the Ruling of the Court of the Resident Magistrate in which it was inter-alia held that Miscellaneous Employment Cause No. 11 of 2008 is misconceived, and in which the said cause was struck out is appealable in so far as it conclusively determines the dispute between the parties concerning the validity of Form CC 10 which was filed in the Court of the. Resident Magistrate at MorogoroJ and in so far as it conclusively rules out the hearing of Miscellaneous Employment Cause No. 11 of 2008 by ordering it to be struck out without being heard by the court, and in which the Appellant was making further claims based on the Voluntary Agreement entered into •• 7 between his former Employer TAZAMA PIPE LINES LTD and its Workers Union. For these reasons, I find that the Appellant's Appeal against the Ruling of the Court of the Resident Magistrate at Morogoro Msumi, RM in Miscellaneous Application No. 14 of 2008 delivered on 20/8/2008 is properly before this court and it does not contravene any law whatsoever.

As to whether or not the Ruling/Order in issue is fit for revision by this court, I will not make any comments. This is because the Court was called upon to decided only as to whether or not the Ruling/Order in issue is appealable. As I have already held, it is appealable. All in all, I overrule the Respondent's preliminary objection with costs. 8 Delivered in open court this 2nd day of July, 2010 in the presence of the Appellant and Mrs. Mcharo for Mr. Kariwa and Co; Advocates. ~ . l A. Shangwa l:J ; l (I.: : ~.

JUDGE ".,, ,,, ~ ;{'-,,,. . 2/7/2010 •~.t:__ ., R·~·(': .~ ,~~-