CIVIL APPEAL NO

IN THE UNITED REPUBLIC OF TANZANIA IN THE HIGH COURT OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CIVIL APPEAL NO. 18256 OF 2024 (Originating from the decision of the District Court of Mtwara at Mtwara in Misc Civil Cause No. 2086 of2024) LEONARD E. MTEPA.................. ........... ....APPELLANT VERSUS BOARD OF TRUSTEES OF NATIONAL SOCIAL SECURITY FUND (NSSF)................................................. ...RESPONDENT JUDGMENT 22nd October & 75* November 2024. DING'OHX, J. As I shall later encapsulate, the dispute subject to this appeal has dragged on for nearly twenty-three years. Originally the dispute subject to this appeal was filed in the Mtwara District Conciliation Board sometime in 2001 as Employment Case No. MTW/CB/23/01/11. The background of this appeal may briefly be narrated as follows; About twenty-three years ago the appellant herein successfully sued the respondent before the Mtwara District Conciliation Board vide Employment Case No. MTW/CB/23/01/11. After the hearing of the evidence Page Lof 13 of both sides, on 24th August 2001, the Conciliation Board ordered the respondent to re-employ the appellant. Dissatisfied with that decision, the respondent appealed to the Minister of Labor. The appeal was dismissed for being time-barred. The appellant then rushed to the Resident Magistrates1 Court of Dar es Salaam at Kisutu where he filed the Employment Civil Cause No. 52 of 2003 seeking the payment of damages arising from the failure of the respondent to comply with the decision of Conciliatory Board of Mtwara District dated 24th August 2001. On 17th October 2003, the court granted the requested damages to the appellant. It was ordered that the appellant be paid by the respondent the sum ofTshs. 167,000,000/=. Then snowdrops of applications followed. At first, the respondent filed the Civil Revision No. 126 of 2003 in the High Court of Tanzania Dar es Salaam Zone against the above-mentioned decision of Kisutu RMs court where, on 16th March 2004, Hon Jundu J (as he then was) quashed and set aside the decision of Resident Magistrates' Court of Dar es Salaam. The matter was ordered to be tried de nova The appellant was also ordered to refund the sum of Tshs. 167,000,000/= to the Respondent. Page 2 of 13 The matter then started de novo before the Kisutu RM's court as ordered by the High Court (Hon Jundu J, as he then was). Unfortunately/ the matter at Kisutu did not proceed as expected the reason being that Kisutu RM's court found that it had no jurisdiction to enforce the decision of the Conciliation Board in that the decision was supposed to be enforced by the District Court. Aggrieved by that decision, the appellant filed Labour Revision No. 669 of 2019 before the High Court (Labour Division) against the decision of the Conciliation Board. On 24th December 2020 Hon. Aboud, J dismissed the application on the reason that the Labour Court lacked jurisdiction to entertain the revision, appeal, or application which was not pending before the Industrial Court of Tanzania on the date when the new laws came into force. Subsequently, the Appellant wrote a letter for direction to the Hon. Judge in charge of the High Court of Tanzania at Dar es Salaam registry, who, it is alleged, advised him to apply for the enforcement of that decision to the district court of Mtwara. In compliance with the alleged advice, the appellant filed a Misc. civil application No. 2086 of 2024 in the district court of Mtwara (the trial court). Page 3 of!3 After hearing the parties, the trial court dismissed the appellant's application for want of jurisdiction as it was made under the repealed laws, to wit The Security of Employment Act. According to the learned trial magistrate, it was a misconception of the law to entertain that kind of application. He observed further that the order issued by the Mtwara District Conciliation Board is different from the mode of execution sought by the appellant in an application for execution. While the Board ordered the appellant to be re­ engaged in his former position of employment, the application for execution was for payment of money. Aggrieved by that decision, and vowing not to fold up, the appellant has preferred this appeal on the following grounds of appeal, some being grammatical and structurally flawed which I have copied as it is; 1. That the learned magistrate erred in fact and law in holding that the court was not properly moved under section 27(1) of the Security of Employment Act, Cap 574. 2. That the learned magistrate erred in fact and law by deciding himself an issue which was not pleaded in the submissions that the applicant's application was not pending before that court prior to the Page 4 of 13 commencement of the Employment and Labour Relations Act [Cap 366 R.E2019]. 3, That the learned district magistrate erred in law and fact by failing to hold that this is a labour dispute originating from the repealed labour laws, wherein the appellant is enforcing the decision dated on 24/08/2002 of Conciliation Board of Mtwara District under the repealed Labour laws. 4. That the learned magistrate erred in fact and law in making a decision which did not take account arid follow the cited decisions made by superior court of Court of Appeal of Tanzania, that bind the district courts. 5. That the learned magistrate erred in law and fact in failing to award the Appellant his employment entitlements amounted to Tshs. 1,350,323,487.50 in the application. 6. That the learned magistrate erred in law and fact in not to order a return of the Appellant's application so that it may be presented to the court in which the learned magistrate believed the Appellant should have instituted his application. Page 5 of 13 At the hearing of this appeal, the appellant was unrepresented. He appeared in person. Mr. Danstan Rubandwa, the learned State Attorney acted for the respondent. The hearing of the appeal was by way of written submission and both sides complied with the timeline set by the court. In the determination of this appeal, before delving into the substantive submissions and grounds raised by the appellant, and for the apparent reason, I have found it apt and imperative to start with the third ground of appeal. The ground questions the jurisdiction of the trial court to entertain a labour dispute matter handled under the repealed law. Submitting on that third ground, the appellant took a firm stance that on 24th August 2001, the conciliation Board of Mtwara District under section 24 (1) (b) of the Security of Employment Act Cap 574 ordered that the appellant herein be re-engaged in his employment. That led the appellant to file Employment civil cause No. 57 of 2003 at the Resident Magistrates' Court of Dar es Salaam at Kisutu for the enforcement of the said decision under section 27 (1) of the same Act on which the case was dismissed for want of jurisdiction. Aggrieved, the appellant filed a Labour Revision No. 669 of 2020 in the High Court of Tanzania Labour Division Dar es Salaam. Page 6 of 13 According to the appellant, the application for the execution to the trial court was not a new thing. It is the power given to the trial court under Chapter 366, third schedule, which mandates it to entertain al! disputes originating from the repealed labour laws. The appellant referred this court to section 32 of the Interpretation of Laws Act [Cap 1 R.E. 2002], Paragraphs 11 (1) (2) and 13 (1) of the Employment and Labour Relations Act Cap 366 R.E. 2019 which amended the third schedule under section 42 of the Written Laws (Miscellaneous Amendments) Act No. 4 of 2016 as well as Written Laws (Miscellaneous Amendments) Act No. 2 of 2010. The appellant is of the view that all disputes arising from the repealed laws must be determined per the substantive provisions of the repealed laws. To bolster his stance, he cited the cases of Alfan Amiri vs. Abecombie & Kent (T) Ltd (Civil Appeal 24 of 2020) [2022] TZHC 32, and Elidhiaha Fadhili vs The Executive Director Mbeya District Council (Civil Appeal No. 24 of 2014) [2014] TZCA 186. Submitting in reply, Mr. Danstan Rubandwa, argued that the Miscellaneous Civil Cause No. 2086 of 2024 originated from the decision of the Conciliation Board of Mtwara dated 24th August 2001 and the decision of reference to the Minister responsible for Labour dated 12th April 2002 Page 7 of13 dismissed the Respondent's reference for being time-barred and upheld the decision of the Conciliation Board. According to Mr Rubandwa, the application did not originate from the repealed laws but rather the trial court was asking itself whether the provision that gives jurisdiction was properly cited to move the court to issue an order, and the trial court reached its conclusion that it was not properly moved hence the application was incompetent and was dismissed for not properly moved. Having heard and weighed the contending arguments from both sides the most important issue is whether the trial court had jurisdiction to entertain the labour disputes, the applications for execution inclusive, emanating from the repealed labour laws. It is a trite position of the law that whenever there is an issue of the jurisdiction raised, that issue must be pursued first. That is the legal position that was emphasized by the Court of Appeal in the case of Indo African Estates Limited vs Kangolanje Hassani & Others (Civil Appeal No. 13 of 2022) [2022] TZCA 126 in the following considered words; Page 8 of13 'We wish first to state in no uncertain terms that, we are acquainted with the position of the law that, the issue ofjurisdiction is very fundamental and it may be raised at any stage as it lies at the root of all judicial functions. (See PR Muganga Henry v. Said Boramungu [2004] T.L.R 198 and Michael Heseni Kweka v. John Eiifa, Civil Appeal No. 51 of1997(unreported)' I am acquainted with the fact that after the enactment of the laws that govern the Labour disputes to wit; the Employment and Labor Relations Act, No. 6 of 2004 (CAP 366) and Labor Institution Act, No. 7 of 2004, these ordinary courts like the trial court lacked the jurisdiction to hear and determine the labor disputes. Now, the special machinery that is vested with the jurisdiction to entertain the Labour disputes is The High Court Labour Division established under section 50, and Commissions for Mediation and Arbitration established under 12 of the Labour Institution Act, Cap 300 R.E 2019. I am aware that, through the Written Laws (Miscellaneous Amendments) Act, No. 2 of 2010, there was a transition period of three years for ordinary courts to continue to finalize all the labour disputes including applications for execution which were pending, as if the repealed law, was Page 9 of 13 still in operation. For the avoidance of doubt, the position has been ascertained under the provision of section 42 of the Written Laws (Miscellaneous Amendments) No. 2 of 20.10 which reads; '42. The principal Act is amended in the Third Schedule by deleting paragraph 13 and substituting for it the following new paragraph: 13.-(1) AH disputes originating from the repealed laws shall be determined by the substantive laws applicable immediately before the commencement of this Act. (2) AH disputes pending and ail applications for executions filed arising from the decision of the Minister in the subordinate courts prior to the commencement of this Act shall proceed to be determined by such courts/ And, (9) The provisions of this paragraph of the Third Schedule shall apply for a period of three years from the date ofpublication of this amendment in the Gazette and, the Minister may, upon consultation with the Council and by notice published in the Gazette, extend thatperiod for Page 10 of 13 an aggregate period not exceeding three years.' (Emphasize added) In the instant appeal, as I expounded earlier herein above, the appellant filed an execution proceeding before the trial court after the dismissal of the Employment Cause No. 52 of 2003 before the Resident Magistrates7 Court of Dar es Salaam at Kisutu for want of jurisdiction. The purported application for execution was filed in the trial court on 21st February 2024. I am of the settled mind that the essence of the provision of section 42 of the Written Laws (Miscellaneous Amendments) No. 2 of 2010 is that the trial court could have the jurisdiction to determine the purported execution filed by the appellant only if; One, when the law was amended the matter was still pending before the minister responsible, or Two; if it was an execution, the same was also pending before the ordinary court. All these were to be determined within the grace period given by the law as stated herein above. After having a careful perusal of the records of this appeal I have realized that the decisions of the Minister for Labor came out on 12th April Page 11 of 13 2002, and from that date, no application was ever filed for the execution or enforcement of the order issued by the minister until this year which is about almost twenty-two years when the appellant went to Initiate an execution proceedings before the trial court. At any rate, the appellant was barred under the Law of Limitation Act to initiate the execution application. Even if it is assumed, just for the sake of argument, that the trial court would have the power to entertain the disputed application for execution, the mode of execution chosen by the appellant differs from the substance of the decision by the Minister. I have already said that the Minister ordered the respondent to re-engage the appellant at work. He did not decide that the appellant be paid the employment entitlements. That said and done, I find that the trial court was right in dismissing the appellant's application for the execution of the decree for want of jurisdiction. As I find it fruitless to consider other grounds, the ground of jurisdiction, under the circumstances of this Labour dispute matter, has the effect of finalizing this matter the way I am about to do. The appeal is hereby dismissed with no order as to costs. Order accordingly. Page 12 of 13 Dated at Mtwara this 13th day of November 2024. Court: Judgment delivered this 13th day of November 2024 in the presence of Ms. Sanura Juma, the learned State Attorney, and Mr. Hassani Rashidi the Page 13 of 13