MISC NO 5213 OF 2024 ISIHAKA SAID LUKINDO VRS LEAH ULAYA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

A T P A R ES SALAAM MISCELLANEOUS APPLICATION NO. 5213 OF 2024 CASE REFERENCE NO. 202403121000005213

BETWEEN ISIHAKA SAID LUKINDO...........................................................APPLICANT

VERSUS LEAH ULAYA & 21 O TH ER S................................................. RESPONDENTS EX-PARTE RULING bate of last Order: 20/ 06/2024 Date of Ruling: 27/ 06/2024 MLYAMBINA, J. On the 20th May, 2024 when this case came up for hearing of the preliminary objections raised by the Respondents' Counsel, Mr. Ondijo Slyvanus Leonard, the Court ordered the raised objections be argued by way of written submissions. It is on the basis of the aforesaid Court Order the submission in chief was filed. Despite of proper service of the said submission, there was no reply submission filed by the Applicant's counsel. Therefore, the Court hereunder proceeds with the ex-parte decision. The points of objections are reproduced as follows: 1. That, the Application at hand is bad in law for being Res- subjudice.

2. That, the Application at hand is bad in law for being preferred under wrong enabling provisions.

3. That, the Application at hand is bad in law for contravening mandatory provisions Section 53(2)(a) o f The Employment and Labour Relations Act [Cap 366 R.E. 2019]. With regard to the first point of preliminary objection, Mr. Leonard submitted that the relevant provisions of Section 8 o f The Civil Procedure Code [Cap. 33 R.E. 2019] provides that: No Court shall proceed with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in Tanzania having jurisdiction to grant the relief claimed. In view of the above quoted provisions of the law, Counsel Leonard argued that it is apparent for a mater to be res sub judice there must be two pending suits between the same parties claiming under the same title in the Courts of competent jurisdiction, and most importantly the matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. In support of the argument, he cited the case of Avodia Antipas Swai v. Asha Ahmed Jama and 4 Others, Miscellaneous Land Application No. 07 of 2023 HC-Dodoma Registry (unreported) where at page 8 first paragraph the Court said that: ...The main conditions for the doctrine that

can make the Court to invoke the above section 8 are that the matter in issue in both cases are to be substantially the same and the previously instituted suit must be pending in the same or any other Court competent to grant relief claimed in the suit and relief claimed in subsequent suit. Mr. Leonard further argued that the meaning of subject matter being directly and substantially the same presupposes the subject matter in both cases need not to be identical, it only requires the same to have some substantial similarities. He cited the Court of Appeal decision in Badugu Ginning Co. Ltd v. CRDB Bank Pic and 2 others, Civil Appeal No. 265 Of 2019 CAT - MZA Registry, (2021) (unreported) at page 18 last paragraph and page 19 first paragraph respectively by relying in the book by Mulla, 13th Edition, Vol 1, the Court did interpret the meaning of phrase "matter directly and substantially in issue" as follows: The law is accordingly well settled that to invoke the bar of res judicata, it is not necessarily that the cause of action in the two suits should be identical. It is only required that the matters are directly and substantially in issue should be the same in both suits .... Every matter in respect of which relief is claimed in a suit is necessarily a matter "directly and substantially in issue Mr. Leonard stated that in the case at hand, it is very clear that the Applicant

had filed the instant application while there are pending cases of the same subject matter vide Application No. 07 o f 2023 and Application No. 15 o f 2023 in the High Court o f Tanzania (Labour Division) at Dodoma Sub -registry, whereby in both Applications parties sought to challenge the membership status of the 3rd, 4th 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st and 22nd Respondents, and in fact, even the Applicant did acknowledge this fact in paragraph seven (7) of the sworn Affidavit in support of the Application. He argued that, since the later and the former Applications in the High Court at Dodoma (Labour Division) have the same pending subject matter i.e. determination of membership status of the 3rd up to 22nd Respondents, or either validity of their position and their reinstatement whatsoever, there is no gainsaying that the instant Application before the Court is res-sub-judice as the matters in issue in former cases are directly and substantially' the same to the instant Application. Further, Mr. Leonard argued that, even though the parties might not be exactly the same in the present application as compared to the former Applications which are still pending before the High Court at Dodoma, but still this instant matter stands to be res-subjudice simply because the subject matter is the same, and the decisions which will

be rendered by these Courts may differ and create confusion in this matter if not conflicting each other. In support of the submission, he referred to the case of Industrial Project and Technical Services Limited v. Barrel Petro Energy Co. Ltd & two others, Land Case No. 56 of 2023 High Court Dar es Salaam District Registry (unreported) whereby at page 9 in the last paragraph and page 10 in the first paragraph the Court stated clearly that: Having critically looked into the circumstances of the matter at had and the application for revision stated is pending in the Court of Appeal, the Court has found there are two matters pending in two different Courts with competent jurisdiction to entertain the issue in dispute which is arising from the same subject matter. The Court has found that, although some of the parties in the matter before this Court are different from the parties in the application for revision pending before the Court of Appeal but the subject matter in both Courts is the same and the decisions which will be rendered by theses Courts is the same and the decisions which will be rendered by these Courts may differ and create confusion in the matter if not conflicting each other. He added that the same position was cemented by the Court of Appeal decision in Badugu Ginning Co. Ltd v. CRDB Bank Pic and 2 Others [supra] when addressing the point of how the issue of

the same parties meant to be, whereby at page 25 second paragraph, the Apex Court had this to say: ...It is our considered opinion that had it been that in the subsequent suit the Appellant had sued the 1st Respondent alone, for instance, claiming the same reliefs, there Court be non-joinder of parties which could lead to impracticability in the enforcement of the decree at the end of the day. By adding the 2nd and 3rd Respondents in the subsequent suit does not change the fact that substantially parties in the former suit are the same parties in the subsequent suit. Therefore, we are unable to agree with Mr. Kipeja that parties are not the same in the former and the subsequent suit. The principle of res-subjudice is at length analysed by Mr. Leaonard which I join hands with his submissions. As discussed, a matter is res-subjudice when it is directly or substantially in issue in a previously instituted suit between the same parties or parties who claim under the same title where such suit is pending in the same Court or other Court in Tanzania having jurisdiction to grant the relief claimed. In the application at hand, at paragraph 6 and 7 of the Applicant's affidavit in support of the application, he deponed as follows: That the 3rd, 4th 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st and 222nd Respondents were expelled from being members

and leaders of positions they held in the 2nd Respondent that was held on the 18th June 2023 at St Gasper Hotel Dodoma. That to date there are Court cases at the High Court of Tanzania Labour Division at Dodoma Sub Registry vide Application No. 07 of 2023 and Application No. 15 of 2023 which are about the membership status of the 3rd, 4th 5th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 18th, 19th, 20th, 21st and 222nd Respondents. From the above quotation, the Applicant clearly admitted that there is another case of similar nature, filed at High Court, Dodoma. The High Court of Dodoma having concurrent jurisdiction in labour matters like this Court (High Court Labour Division), makes the application res-subjudice. Therefore, since there is another case pending before the same High Court, as rightly submitted by Mr. Leonard, for avoidance of conflicting decisions, let this application be dismissed. In the result, I find the first preliminary objection has merit and is hereby upheld. Consequently, I find no relevance to labour with the remaining points of objection since the application by itself is unmaintainable. Entertaining the rest of the objections will only be an academic exercise. Hence the application is hereby dismissed for being res subjudice. It is so ordered. Y.J. MLYAMBINA

JUDGE 27/06/2024 Ruling delivered and dated 27th June, 2024 at 14:30 hours in the presence of Counsel Josephine Sabinus Kweka holding brief of Leonard Sylvanus. Right of appeal explained.