john b kasika others vs tanzania china friendship textile company 2009 tzhc 105 26 march 2009

IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY AT DAR ES SALAAM CIVIL APPEAL NO.155 OF 2006 JOHN B. KASIKA AND O T H E R S ........................................... APPELLANT VERSUS TANZANIA CHINA FRIENDSHIP TEXTILE COMPANY.............................................................. RESPONDENT Date o f last order - 19/06/2008 Date of judgment - 26/03/2009 JUDGMENT MAKA RAM BA, J. This is a ruling on the appeal by the appellants against the ruling of Hon. Luguru, (PRM) of the Kisutu Resident Magistrates' Court in RM Civil Case No. 206 of 1999 dated 26th July, 2006 upholding the preliminary objection raised by the respondent that it had no jurisdiction to hear and determine labour disputes, and dismissed the suit. The appellant were aggrieved by that decision and appealed to this Court praying for its reversal, preferring one ground of appeal that the learned Principal Resident Magistrate grossly misdirected herself in law and in fact in holding that the Resident Magistrate's Court has no jurisdiction to entertain the suit as an ordinary suit. The appeal was argued by way of written submissions; the firm of advocates of F.E. Ukongwa appeared for the Appellants and United Law Chambers, Advocates, for the respondents. l It is the submission of the learned Counsel for the Appellants that the ruling of the Kisutu Resident's Magistrate is not a correct interpretation of section 41 of the Magistrates' Courts Act [CAP. 11 R.E. 2002] which vests original jurisdiction on the resident magistrate's and district courts and define their powers and that this section does not shut out the resident magistrates from resolving labour disputes. It is the further submission of the learned Counsel for the Appellants that section 142 of the Employment Act [CAP 366 R.E. 2002] vests District Courts and District Magistrates with very wide and total jurisdiction, regardless of any other law and also powers to hear and determine labour disputes, and in the case of District Courts it is empowered to hear and determine such disputes even those originating from outside its jurisdiction. The learned Counsel for the Appellants concluded his submission saying that a District Court and by extension a Resident magistrate's Court have been vested with jurisdiction on labour disputes praying that the decision of the Kisutu Resident Magistrate's Court be set aside and Civil Case No.206 of 1999 be allowed to be determined on merits. The Respondents in reply submitted that the learned Counsel for the Appellants does not dispute that the fact that the case in 2 hand is a labour matter but the issue is whether a labour case can be entertained in the Resident Magistrate's Court as an ordinary suit, which is the crux of the preliminary objection. It is the further submission by the learned Counsel for the Respondents that section 41(1) and (2) of the Magistrate's Courts Act relied on by the learned Counsel for the Appellants, has a limitation on the jurisdiction of the resident magistrate's courts. It is the further submission of the learned Counsel for the Respondents that the 2nd Schedule to the Magistrate's Courts Act which provides for the matters to be adjudicated upon by Resident Magistrate's Court does not provide for labour cases as cases to be adjudicated upon by the Resident Magistrate's Courts. The learned Counsel for the Respondents submitting that the provisions of the Employment Act [CAP 366 R.E. 2002] relied on by the appellant are of no assistance to their case, argued that the said Act provides in its sections 139-158 for the procedures for dealing with labour disputes in that a labour disputes has first to be referred to the Labour Officer who has to resolve the disputes failure of which he has to report the case to the District Court. The learned Counsel for the Appellants in rejoinder submitted that it is surprising the interpretation the learned Counsel for the Respondent put on the Second schedule of the Magistrates' Courts Act [CAP. R.E. 2002], that the Acts mentioned in that schedule are 3 the only one Acts a District Court has jurisdiction on, as being totally wrong. It is the further submission that the said schedule simply lays down laws under which a district court as defined in these Acts allow them to be presided over by a District Magistrate or a civil magistrate and it does not set out laws under which matters arising under those Acts a District Court can adjudicate on. The learned Counsel for the Respondent saluting the innovation by the learned Counsel for the Appellant on the concept of "jurisdiction by extensiori' as non existent in our civil laws and procedures, insisted that the procedure is for a Labour Officer to report a dispute to the District Court, not directly to the Resident Magistrate Court as an ordinary civil case. In a rather unusual manner the learned Counsel for the Respondent proceeded to make submissions also on the pith and substance of the Industrial Court Act [CAP. 60 R.E. 2002] and the lack original jurisdiction of the High Court in trade disputes. It is the submission of the learned Counsel for the Respondent that since the appellant's case is a labour dispute as defined under section 3 of the Industrial Court Act [CAP.60 R.E. 2002], they ought to have referred it to the Industrial Court of Tanzania in accordance with the procedure stipulated under section 4 of the Act. A trade dispute, as per the said procedure, is first to be reported to the work place trade union branch, and subsequently under the sections 5 and 6 of the Act, which finally if not resolved, it has to be referred to the Industrial Court by the Labour Commissioner. The Industrial Court is the one vested with jurisdiction to hear and determine any trade dispute as per section 16(2) of the Act. The learned Counsel for the Respondent buttressed his submissions by citing the decision of the Court of Appeal of Tanzania in TAMBUENI ABDALLAH & 89 OTHERS vs NATIONAL SOCIAL SECURITY FUND Civil Appeal No.33 of 2000 (Dsm)(unreported) insisting that trade disputes have to follow the prescribed procedure and that there is no room for going to the High Court straight since it does not have original jurisdiction to entertain trade disputes. The learned Counsel for the Appellants was quick in his rejoinder submissions to attack the submissions by the learned Counsel on the reach of the Industrial Court saying that the issue in this appeal is whether the Resident Magistrate's Court has jurisdiction over labour disputes and no whether the High Court has original jurisdiction over labour disputes and therefore even the case of TAMBUENI ABDALLAH is only authority for the proposition that the High Court does not have original jurisdiction to try labour disputes but does not go further to include the Resident Magistrate's Courts and or District Courts and therefore it is a total misconception of the law for the respondent to rely on that case. 5 The main issue in this appeal is whether a Resident Magistrate's Court has jurisdiction to entertain a labour matter as an ordinary suit. It seems to me, as submitted by the learned Counsel for the Respondents, and rightly so in my view, that the learned Counsel for the Appellants has proceeded on the wrong premise that what is being questioned in this appeal is whether the Resident's Magistrates' Court has original jurisdiction over labour matters. Equally, the learned Counsel for the Respondents by traversing the avenues of the Industrial Court Act and the lack of original jurisdiction in labour disputes by the High Court, as the learned Counsel for the Appellants, submitted and rightly so in my view, the learned Counsel for the Respondents did what was not called for. It is without dispute that a District Court has jurisdiction in all proceedings in respect of which jurisdiction is conferred by the second schedule to the Magistrates' Courts Act [CAP. 11 R.E. 2002] or any law for the time being in force or on a district court presided over by a Resident Magistrate or a Civil magistrate in the exercise of original jurisdiction. This is what section 41(1) of Magistrates' Courts Act [CAP. 11 R.E. 2002] provides. However, the contention here is whether labour disputes are the matters which can be proceeded with as ordinary suits in a Resident Magistrates' Court or a District Court for that matter. I am one with the submission by the learned Counsel for the Respondent that a labour dispute cannot be filed directly in the Resident Magistrate Court as an 6 ordinary civil case. The reason for a labour matter not being preferred directly to court as an ordinary suit is not that far to fetch. The main reason is that labour dispute is no ordinary matter due to the fact that there is a special procedure for preferring labour disputes in courts of law, which is clearly stipulated under the provisions of sections 139-158 inclusive of the Employment Act, [CAP 366 R.E. 2002]. In summary, a labour dispute has first to be reported by the aggrieved party to Labour Officer for settlement. This is stipulated under section 139 of the Act as follows: 139. Whenever an employer or employee neglect or refuse to fulfil the terms o f any contract o f service, or whenever any question; difference or dispute shall arise as to the rights or liabilities o f either party to a contract o f service\ or touching any misconduct neglect or ill-treatment o f or by such party, the party aggrieved may report the matter to a labour officer who shall thereupon take such steps as may seem to him to be expedient to effect a settlement between the parties. Where the Labour Officer is unable to effect a settlement between the parties, then at the request of either party or on his own initiative he may to report the dispute to a magistrate setting out the facts of the case. This is what is provided for under section 141 of the Employment Act, [CAP 366 R.E. 2002]that: "141. Where, on receipt of a report under section 139\ a labour officer does not act in accordance with the provisions o f section 140 and is unable to effect a settlement between the parties, he may, at the request of either party or on his own motion, i submit a written report to a magistrate setting out the facts of the case." Upon receipt of the report of the Labour Officer the magistrate, then issue process to cause the parties and the witnesses to attend before him and upon attendance of the parties proceeds to try the issues disclosed in the report. This comes out very clearly under section 143 (1) and (2) of the Employment Act, [CAP 366 R.E. 2002] which provides that: "143. (1) On the receipt of a report under section 141 the magistrate shall, where the facts appear to him to be such as may found a civil suit\ issue such process as he may think fit to cause the parties or either o f them and the witnesses to attend before him. (2) Upon the attendance o f the parties the magistrate shall proceed to try the issues disclosed in the report as if the proceedings before him were a civil suit without requiring the parties or any party to file any pleading. (the emphasis is o f this Court) The reason that a labour case is no ordinary suit arises from the fact that the parties are not required to file any pleading. The report of the Labour Officer is the pleading since it contains the facts founding a civil suit and thus discloses the triable issues as if the proceedings were a civil suit. Section 143(3) of the Employment Act, [CAP 366 R.E. 2002] provides categorically that the Civil Procedure Code [CAP.33 R.E. 2002] in so far as is may be applicable" applies to such proceedings, provided that the magistrate is to hear and determine such proceedings "according to substantial justice without undue regard to technicalities o f procedure." The learned Counsel for the Appellant has cited the provisions of section 142 of the Employment Act [CAP. 366 R.E. 2002] and argued that the provision vests very wide jurisdiction in resolving labour disputes on District Courts and Resident magistrate's courts. "142.(1) Every District Magistrate (whether or not he is a civil magistrate) shall have jurisdiction; notwithstanding anything to the contrary contained in any Act or written law respecting the jurisdiction o f 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 provision is made in this Act." It seems that the learned Counsel for the Appellant has relied on section 142(3) of the Employment Act [CAP. 366 R.E. 2002] to argue that it confers very wide jurisdiction on the courts. Section 142(3) of the Employment Act [CAP. 366 R.E. 2002] stipulates as follows: (3) Notwithstanding anything in the foregoing provisions o f this section if it should appear that any case or matter can be more conveniently tried or determined in another court or by another magistrate, a magistrate may refer the case or matter for determination to such other court or magistrate. 9 With due respect to the learned Counsel for the Appellants, the above cited provision of the law is aimed at convenient disposal of a labour case by another court or by another magistrate and does not propose to bring in what he has preferred to call as "jurisdiction by way of extension", which as the learned Counsel for the Respondent has submitted and correctly so, that such concept does not exist in our civil procedure law. In any event even if we were to assume for a moment that that is the position, which unfortunately is not, the jurisdiction of a District Magistrate cannot be extended to Resident Magistrate or Resident Magistrate Court. It cannot by any stretch of imagination be argued that since section 142(1) pf the Employment Act [CAP. 366 R.E. 2002] confers jurisdiction "//7 all cases or matters arising between employers and their employees on a District Magistrate, then the term " another court or by another magistrate" would mean and include a Resident Magistrate's Court or Resident Magistrate. In the circumstances and for the reasons I have endeavoured to expound herein above, I would, as I hereby do, dismiss this appeal. Since this is a labour matter I shall make no order as to costs. It is so ordered. 10 Judgment delivered in Chambers this Day of in the presence of: For the Appellants: .1 . . ^ For the Respondent: jzKLs ~ '"I \ O r •V -i \ . t »•* ( ..'■ v ' ----------- .. «■>'• ' ■>. 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