KALTIRE MINING TIRE GROUP VS JOHN KADUTU COMM CASE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL CASE NO. 129 OF 2014 KALTIRE MINING TIRE GROUP TANZANIA LIMITED........................................ PLAINTIFF VERSUS JOHN KADUTU................................................DEFENDANT RULING Mansoor, J: Date of Ruling- 12th JUNE 2015 The defendant was an employee of the plaintiff. The plaintiff alleges that in the course of performing his duties as the employee of the plaintiff, the defendant has converted for his own use the sum of TZS 985,372,062, for which the defendant is liable to the plaintiff in conversion. The plaintiff filed a suit for declaration that the defendant holds the sum of TZS 985,372,062.14 in trust for the plaintiff and that the said 1 money is owed by the defendant to the plaintiff, an order requesting the defendant to produce all bank statements pertaining to account no. OLJ2459769100 at the CRDB Bank PLC in the name o f John Kadutu, and an injunction order restraining the defendant from withdrawing money from that account. Together with the written statement of defense, the defendant took an objection on the point of law, regarding the jurisdiction of this Court to entertain the suit saying that this matter is an employment matter emanating from an employer /employee relationship o f the parties and the proper court would have been the Labor Court. The Defendant also objects the territorial jurisdiction of this court saying that since the defendant resides in Mwanza and the labor/employment Agreement was executed in Mwanza, and the defendant was employed in Mwanza and the cause o f action arose in Mwanza, the plaintiff ought to have filed a case at Mwanza Registry, not Dar es Salaam. The defendants Counsel, Mr. Mutakyamirwa argued that it is not in dispute that the defendant was an employee of the plaintiff, and thus the law governing an employer/employee relationship is the Employment and Labor Relations Act, No. 6 of 2004, in which Section 88 of the Act gave exclusive jurisdiction to the Labor Court to entertain Labor Relations issues, it provides: 2 “any other contravening o f this Act or any other Labor Law or breach o f contract or any employment or labor matter falling under common law, tortious liability and vicarious liability in which the amount claimed is below the pecuniary jurisdiction o f the High Court” In emphasizing the point, the learned counsel for the defendant cited the case of D ar es Salaam C ity C ou n cil vs R afael R u vak u bu sa, H igh C ourt, L abo r D ivision , R evision No. 149 o f 2008, in which Madam Judge Rweyemamu J, ruled that a defamation action arising out of the employment contract, the court which has jurisdiction is the High Court, Labor Division, since that Court is sitting with two assessors. MS Fatma Karume, an Advocate who is representing the plaintiff submitted that the cause of action in this matter is the tort of conversion, and it is not a labor dispute. She said under Section 4 of the Employment and Labor Relations Act, a dispute is defined to be a dispute concerning a labor matter, and said stealing from the employer is not a labor matter, it is theft, and the civil equivalent of theft is conversion. She said, this is not a matter concerning the defendant’s employment status. She said Section 94 o f the Labor Relations Act gives exclusive jurisdiction to the High Court Labor Division only on employment and labor matters, and matters o f disputes between an employer and 3 employee, she said, in the present case, there is no labor dispute between the parties. In this case, the applicant, employer seeks to recover its money which was taken by its employee in the course of his duties as an employee. The defendant alleges that this Court do not have jurisdiction to determine the employer’s claim of return of its money taken or converted by an employee into his own use, the tortious liability emanated from an employer/employee relationship. Relying on the case cited above, and Section 88 of the Employment and Labour Relations Act, the Counsel for the defendant argued that the employer could seek redress in the High Court, Labour Division in terms of section 88(1) of the Employment and Labour Relations Act, No. 6 of 2004. The Defendant Counsel also contended that as the employer pleaded the cause of action to be the breach of the terms and conditions of employment contract to which the defendant was condemned to have stolen money from the employer, the High Court, Labour Division had exclusive jurisdiction in terms of s 88(1) of the Employment and Labour Relations Act to determine labour disputes or breach of contract or any employment or labour matter falling under common law, tortious liability in which the amount claimed is below the pecuniary jurisdiction of the High Court. In this case Ms Fatma Karume argues that the Employer’s pleadings did not include a complaint that the employee had breached an employment contract, and it is not a dispute concerning a labour matter as defined in in the Act, and as defined in section 94 (1) of the Employment and Labour Relations Act. Ms Fatma Karume argues that the employer had pleaded the tort of conversion, and this is not within the exclusive jurisdiction of the High Court Labour Division. I have keenly considered the learned Counsels submissions and I have seen that the counsels are at issue regarding the jurisdictional of the Labour Court regarding disputes about claims arising from employment contracts as well settled in Section 94 (1) of the Employment and Labour Relations Act No. 6 of 2004, which provides: 94.1 subject to the Constitution o f the United Republic o f Tanzania, 1977, the Labour Court shall have exclusive jurisdiction over the application, interpretation and implementation o f the Provisions o f this Act over any employment or labour matter falling under common law, tortious liability, vicarious liability or breach of contract within the pecuniary jurisdiction o f the High Court....... ” 5 I on the other hand agree with the submissions by the learned counsel Mutakyamirwa that the breadth o f any matter concerning a contract of employment or a labour matter or even a tortious liability emanated from labour relationship fall within the exclusive jurisdiction of the Labour Court. The jurisdiction o f the High Court, Commercial Division for that matter is ousted by s 94(1) and 88 of the Employment and Labour Relations Act No. 6 of 2004, because a dispute is one that falls within the overall sphere o f employment relations. In short, for this employer’s claim o f a tort of conversion, neither the Civil Procedure Code, Cap 33 RE 2002 nor the Commercial Rules i.e. the High Court (Commercial Procedure) Rules 2012 or the Common Law provided jurisdiction to this court on matters of tortious liabilities emanated from an employment contract or labour relations between the parties. As provided in the Employment and Labour Relation Act, this matter fall within the exclusive jurisdiction of the Labour Court. In applying the precedent set in the case decided by Rweyemamu J, in the case of Dar es Salaam City Council vs Rafael Ruvakubusa (supra), it was confirmed that the High Court Labour Division have the exclusive jurisdiction over any employment or labour matter falling under common law or 6 tortious liability or breach of contract in so far as their disputes arises from employment. The first objection is therefore upheld, and the suit is hereby struck out. The matter can be refiled at the proper court having jurisdiction to entertain and determine it. Since the first objection sufficed to dispose o f the entire suit, I shall rule on the 2nd objection for clarity only. I do agree with the submissions by the Plaintiffs Counsel that the High Court of Tanzania, Commercail Division has territorial jurisdiction over the entire country as provided in the High Court Registries Rules, 1961 and also by Rule 5 (3) o f the High court (Commercial Division Rules that original proceedings in the High Court may be instituted in the Registry at Dar es Salaam or in the Registry for the area in which the cause of action arose or the defendants resides. As per GN No. 96 of 2005 made under Rule 5A of the High Court Registries (Establishment o f a Commercial Division of the High Court Sub-Registry)) Notice 2007, establishes a Mwanza sub­ registry of Commercial Division of the High Court The GN that established the Mwanza Sub Registry o f the High Court did not take away the territorial jurisdiction of the High Court, Commercial Division over the entire country. As provided in the Comercial Rules, appellate or original proceedings may 7 be instituted within Commercial Division of the High Court within the Registry at Dar es Salaam and at any other registry or sub-registry. A suit may be filed at the High Court Commercial Division, Main Registry or at the sub-registries. This Court has territorial jurisdiction over the entire country. The objection over territorial jurisdiction therefore fails, and the suit is struck out on the ground stated herein above, with orders as to costs to the defendant. DATED at DAR ES SALAAM this 12th day o f JUNE, 2015 MANSOOR JUDGE 12™ JUNE 2015 COURT: The suit was struck out on 12/6/2015 o f want of jurisdiction hence this application also is stuck out on the same grounds. ANSOOR JUDGE 12t h JUNE 2015 8