co operative society ltd vs donati minde 2007 tzhc 414 14 august 2007

IN THE HIGH COURT OF TANZANIA AT MOSHI (DC) CIVIL APPEAL NO. 24 OF 2005 [C/F DC MOSHI CIV. CASE NO. 122/2005] KIBOSHO MWEKA SUNGU RURAL CO-OPERATIVE SOCIETY LTD -------APPELLANT VERSUS DONATI MINDE ----------------------------RESPONDENT JUDGMENT HON. JUNDU, J. The Respondent was employed by the Appellant as a manager. He was suspected o f having caused a loss amounting to shs.14.7 m/= hence he was j suspended from employment by the Respondent on 23 June, 1992. He was subsequently charged in the District Court o f Moshi vide Criminal Case No. iL 131/94 in September, 1994. However, on 15 November, 1994, he was discharged by the said court under Section 225 (5) o f the Criminal Procedure Act, 1985. When he went back to the Appellant to report, the Appellant refused to reinstate him. Therefore, the Respondent sued the Appellant in the lower court for unpaid salaries, gratuity, general damages, interest and costs o f the suit. In her Judgment, the trial magistrate had entered Judgment in favour o f the Respondent as follows: (a) Unpaid leave since January, 1992 - Febr. 1995, the total amount of Tshs.70,000/= (b) Unpaid salaries from November, 1994 (c) Unpaid gratuity at the standard rate required by law. (d)The Plaintiff to be paid general damages for being harassed and prosecuted in the District Court of Moshi without reasonable cause for doing so at the sum o f Tshs.800,000/= (e) Interest on the decretal amount at the court rate from the date of Judgment until the date of payment in full. (f) Each party to bear own costs. The Appellant having been aggrieved by the Judgment and Decree of the lower court has appealed to this court listing three grounds o f appeal in his Memorandum o f Appeal namely: (1) That the learned Resident Magistrate did not have jurisdiction to determine Civil Case No. 122 o f 1995 which was a labour matter concerning a trade dispute between the parties. (2) That the learned Resident Magistrate erred in law in that she awarded general damages which were not legally proved. (3) That the learned Resident Magistrate erred in law in that she failed to invoke the doctrine o f estoppel. Based on the above stated grounds of appeal, the Appellant, in his Memorandum of Appeal has prayed to this court to allow the appeal with costs and to set aside the Judgment and Decree o f the lower court;' On 3/7/2007, this court had ordered the parties to argue the appeal by way of written submissions. The parties have so complied. The Appellant is advocated by Prof. Msanga, learned counsel while the Respondent responded to the appeal on his own. As I have already stated above, the Appellant, in his first ground of appeal contends that the learned Resident Magistrate did not have jurisdiction to determine Civil Case No. 122 o f 1995 which was a labour matter concerning a trade dispute between the parties. Therefore, I have to consider whether the said magistrate did or did not have jurisdiction in the said civil case, which is the one under this appeal before this court. Prof. Msanga, learned counsel for the Appellant, in his submission, argued that the complaint o f the Respondent and his reliefs he had sought in the trial court shows that the dispute is a trade dispute which the ordinary courts such as the trial court have no jurisdiction and that such dispute has to be settled in accordance with Section 4 o f the Industrial Court of Tanzania Act (Cap. 60 R.E. 2002). In his submission, the Respondent replied that the argument o f Prof. Msanga is baseless and does not hold water. He contends that the learned Resident Magistrate who tried and determined the dispute in the trial court had jurisdiction to do so. I have carefully considered the submission o f the parties on the first ground of appeal. I have carefully read the proceedings and the Judgment of the trial court. I have also read the provisions of Section 3 and 4 o f the Industrial Court of Tanzania Act (Cap. 60 R.E. 2002) cited by Prof. Msanga in his submission as well as the decision o f the Court o f Appeal in the case o f Tambueni Abdallah & 89 others Versus National Social Security Fund, Civil Appeal No. 33 of 2000 (unreported). It is very clear to me from the Plaint filed by the Respondent in the trial court that he was complaining about his suspension from employment by the Appellant and the reliefs he sought from the said court in his plaint were about unpaid salaries, leave and gratuity from the Appellant. It was settled in the said court that the Respondent had been employed by the Appellant hence there was a relationship o f an employee and employer between them. Can it be said that the dispute was not a trade dispute between the Appellant and the Respondent based under the said circumstances? As submitted by Prof. Msanga, a trade dispute is defined under Section 3 o f the Industrial Court o f Tanzania (Cap. 60 R.E. 2002) as follows - “Trade dispute means any dispute between an employer and employee or an employee in the employment of that employer connected with the employment or non employment or terms of the employment, or with the conditions o f labour o f any o f those employers or such an employee” Now, I am quite clear in my mind that the complaint by the Respondent in the trial court that is his suspension by the Appellant as stated in his Plaint was connected with his employment with the Appellant and the reliefs he sought thereto and granted by the said court were based on the said suspension by the Appellant. In my considered view, the aforesaid position falls properly under the above named definition o f a “trade dispute” stated under Section 3 o f the Industrial Court Act (Cap.60 R.E. 2002). Though the Respondent in his submission contended that suspension and non - employment are two different terms, in my considered view, in line with the decision o f the Court o f Appeal in Tambueni Abdallah & 89 others Versus National Social Security Fund (supra) suspension is also non-employment as argued by Prof. Msanga. In settling the first ground o f appeal, I hold as per the demonstration I have above made that the dispute between the Appellant and the Respondent in the trial court was a trade dispute which ought to be settled in accordance with Section 4 o f the Industrial Court o f Tanzania (Cap.60 R.E. 2002) as the ordinary courts including the trial court are not vested with jurisdiction to entertain the same. Having hold that the trial court had no jurisdiction to entertain the suit that was filed by the Respondent as it involved a trade dispute it suffices to dispose the appeal filed by the Appellant in this court, I need not labour and determine the Second and Third grounds o f appeal. I found the appeal filed by the Appellant meritous. I hereby allow the same with costs. I quash and set aside the judgment, decree and orders o f the trial court. It is so ordered. F.A.R. JUNDU JU D GE 14/8/2007 Right o f Appeal Explained. F.A.R. JUNDU JU D GE 14/8/2007 14.8.2007 Coram: F.A.R. Jundu, J. For the Appellant: Absent For the Respondent: present C/C: Ramla C ourt: Judgment delivered in the absence o f the Appellant and in the presence of the Respondent. F.A.R. JUNDU JU D GE 14/8/2007 AT M O SH I