idd muhunzi vs tanzania cigarette co ltd 2020 tzhcld 1816 31 august 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 299 OF 2019 BETWEEN IDD MUHUNZI......................................................APPLICANT VERSUS TANZANIA CIGARETTE COMPANY LIMITED.......... RESPONDENT JUDGMENT Date of Last Order: 26/08/2020 Date of Judgment: 31/08/2020 Z. G. Muruke. J. Aggrieved by the ruling of the Commission for Mediation and Arbitration [CMA] in Labour Dispute .No. CMA/DSM/KIN/R/1430/2017 dated 08thJune, 2017, the applicant filed present application, seeking to revise and set aside the same.' The application is supported by his sworn affidavit. Respondent filed the counter affidavit sworn by Goodluck Kazaura, their Principal Officer. Hearing was by way of written submission, Applicant was represented by Advocate Godfrey Ukwong'a, while the respondent was represented by Advocate Jackob A. Luoga. i It is from record the records that, the applicant was the respondent's employee untill 22nd June, 1990, when retrenched on operational requirement. After retrenchment he was employed by Tanzania Cigarette Club where he worked until 7th November, 1991 when he was terminated on absenteeism. The applicant alleged that he was not paid his terminal benefits by the respondent despite several reminders. He decided to file his claims before CMA, in which the arbitrator held that, the application was resjudicata. Dissatisfied with the ruling, the applicant filed present application. Submitting in support of the application,''applicant's Counsel prayed to adopt the affidavit in support ,of vtheTapplication to form part of his submission. He submitted that" the arbitrator decided that the matter is res judicata while the application Jhas not been determined before. That the claims in this dispute arelthe claims of terminal benefit, not paid after being retrenched. He stated further that, there were two disputes where the first was the one with the respondent herein and the second was with TCC Social Sports Qub.where he was employed after being retrenched. His claims are from the',first dispute after retrenchment, hence the arbitrator erred to state it was resjudicata. In' reply the respondent's counsel submitted that, it is crystal clear that the applicant through various applications at the CMA and before this court is simply trying to circumvent the previous decisions that declared the dispute as resjudicata. That the decisions were based on the decision made in Kisutu Resident magistrate court in Empl. Civil Case no.40/92, that held that the applicant had no claims against the respondent. Part of decision read as follows:- "it is certainly that the applicants were declared redundant and their services were terminated by the company ( TCC from 30th June 1990... it is beyond peradventure that the plaintiffs were engaged afresh by the club, (TCC club) they^have been paid all dues after the termination." It was further submitted by Jackob Anold Luoga for the respondent that, the applicant is abusing the legal process since 1990,, thus caused a lot of costs to the respondent. The Applicant filed several applications including the application for execution before Hon. Simfukwe DR on 11th February,2019 after finding that there {was no award to execute, deputy registrar dismissed of the application. * Having considered parties submissions and court records, issue to be determined is whether this matter at hand is res judicata. The term Res judicata is provided for under, Section 9 of the Civil Procedure Code Cap 33 RE. 2019 provides:-, ’’ No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under ^whom they or any of them claim litigating under the same title in a competent court to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court." [Emphasis is mine]. 3 Same principal was discussed in the case of Ottoman Bank Vs Ghani, Civ. Case 63 (1971) H.C.D. 69 where Georges CJ. (As he then was) that; "A prerequisite for the operation of the doctrine of Res-judicata is that there should have been a former suit in which the issue allegedly Res- judicata has been decided." Again in the case of James Katabazi & 21 Others Vs. Secretary General of the EAC & The Attorney General of Uganda, Ref. No. 1 of 2007 EACJ, it was held that for the doctrine to be,applicable the following have to be observed /. Whether the matter is directlyand substantially in issue in the two suits. ii. Parties must be the same or parties under whom any of them claim, litigation under the same title. iii. The matter must have been finally decided in the previous suit. Therefore, for,’the principle of res judicata to operate it must be shown that the previous ludqment determined the matter, and that of the same parties and ’of the same subject matter. In the matter at hand the applicant in his submission convinced this court to rule that the matter is not res judicata because, his claims are resulted from the unpaid retrenchment package from the respondent and the same were never determined before. He submitted that the confusion is that the determined matter was between him and TCC Social and Sport Club in Empl. Civil Case No.40/92. CMA found that it had no jurisdiction to determine the dispute since it is res judicata. I have cautiously gone through the records and found that on 22nd June, 1990 the applicant was retrenched by the respondent, and was employed by TCC Social Sports (TCC Club) where he was terminated on absenteeism. Aggrieved with the termination, he filed Empl. Civil Application No.40/92 before Kisutu Resident Magistrate court where he was awarded Tshs. 21,000/=. Thereafter there were various applications filed by the applicant against the respondent to,wit, labour dispute no. KZ/V.10/MG-66/09 which was revised in Rev. No. 30/2012 where it was found to be res judicata and he sued a wrong party. Labour dispute no. CMA/DSM/MIS/68/15/16/176 which it was found that the application was time barred. After careful consideration of the records, I am also of the view that the application is res judicata, basing on the fact that, the application was determined by CMA by Hon. Chuwa Arbitrator in labour dispute No. CMA/DSM/MIS/68/15/16/176 where it was held that the matter is time barred. Frorru records there is no proof that the applicant filed any application before this court, seeking for revision of the same or any application] to file his claims out of time. It is from records that the applicant decided to refile the same claims, with the same parties before CMA resulting to this impugned ruling. Therefore I have no hesitation to uphold the CMA's ruling that the matter is res judicata, as the same was determined before Hon. Chuwa and it was time barred. On the basis of the above discussion, I have no hesitation to say that the revision at hand is res judicata. In the result the application is dismissed for lack of merit, with costs because applicant is doing trial and error process. It is so ordered. Z.G.Muruke JUDGE 31/08/2020 Judgment delivered in the presence of applicant in person and Jacob Anorl Luoga for respondent. Z.G.Muruke JUDGE 31/08/2020