lukololo kilosa another vs attorney general another 2016 tzhc 2165 27 september 2016

IN THE HIGH COURT OF TANZANIA

AT DODOMA Civil Case No. 14 of 2015 l.LUKOLOLO KILOSA 1st PLAINTIFF 2. JOSEPH PAZA 2nd PLAINTIFF

VERSUS 1. THE ATTORNEY GENERAL l^t DEFENDANT 2. THE INSPECTOR GENERAL OF POLICE ... 2nd DEFENDANT

RULING 13/09/20'! 6 & 27/09/201 6 SEHEL, J. The Piaintiffs sued the Defendants claim ing th a t the Defendants b re a ch e d the c o n tra c t of em ploym en t thus causing specific <pnd _ _ * general dam ages to the Plaintiffs. After all pleadings w ere com ple te , this Court invited the learned a d v o c a te for the Plaintiff and the learned State A ttorney to address this Court as to w h e ther this Court has jurisdiction to entertain the suit. Mr. M atim bw i, learned a d v o c a te for the Plaintiff subm itted th a t Section 2 (1) (ii) of the Em ploym ent and Labour-Relations Act, C ao. l excludes the m em ber of Police Force. For the members of the Poiice Force, he said, the a p p lic a b le law is the Police Force and Auxiliary Services A ct, C ap.

322. He a rg u e d the suit was filed before this Court after the Plaintiffs have exhausted all the procedures laid dow n under the A c t and th a t in terms of Regulation C.3 (1) of the Police Force Service Regulations of 1995 the final disciplinary authority for the case of the Plaintiffs is the Inspector G eneral of Police. It was the j counsel's opinion th a t this Court has jurisdiction to entertain the suit. Ms. Mwakyusa, learned State A ttorney had a different view. It was her submission th a t tho ug h it is tru e 'th a t the Em ploym ent and Labour Relations Act, G ap...excludes the members of the Police Force but the Plaintiffs h b v e ^n o t yet exhausted all the remedies a vailab le in the Poiice Force and Auxiliary Services A ct, C ap.

322. She said since the Plaintiffs w ere m em ber of police Force of below the rank of inspector and disciplinary actio n was taken against them in a c c o rd a n c e with Section 50 (1} (y) of the Police Force and Auxiliary Services Act, C ap. 322 then the Plaintiffs o ugh t to lodge their a p p e a l to the Minister before filing the present suit pursuant to Section 54 of the Police Force and Auxiliary Services A ct, C ap.

322. I think the best p la c e to ’ start with is the root cause, of the present suit. The Plaintiffs w ere both members of the Police Force. They w ere taken before the a p p ro p ria te Tribunal ch a rg e d w ith three 2 disciplinary offences. They w ere found guilty and on 7th Novem ber, 2011 the C om m anding O fficer for Singida dismissed the Plaintiffs from their em ploym ent pursuant to Regulation C.S (5) of the Police Force and Prisons Service Commission Regulations’ G.N 161 of 1998. Being not satisfied-with the decision they io d g e d their a p p e a le d . On 1st O ctobe r, 2014 the Inspector General of Police confirm ed their dismissal and dismissed’ their a p p e a l pursuant to Regulation C.18 (3) of the Police Force and Prisons Service Commission Regulations G.N 161 of 1998 through its letter with Reference Number PHQ/PF/E.93117A. This letter also notified the Plaintiffs th a t the decision of the Inspector G eneral is final. ' From th a t sequence, the Plaintiffs filed the present suit claim ing that they w ere not heard by the Inspector G eneral of Police. Further, under Paragraph 14 of the Plaint they allege 'that the d e fe n d a n ts’ acts and conduct have caused breach of the c o n tra c t of em ploym ent. It is from these pleadings -that I invited parties to address this Court as to w hether it has jurisdiction to determ ine the suit. Of course, I co n cu

r with the Mr. M atim bw i, learned counsel for the Plaintiffs and Ms. Mwakyusa, learned State A ttorney th a t Section 2 (1) (ii) of the Employment and Labour Relations Act, No.6 of 2004 e x c lu d e s -th e . m e m b e rs -o f the police fo rce in its a p p lic c 1 3 However, there is a noth er schem e w hich both Mr. M atim bw i and Ms] M wakyusa did not address this Court, this is none other than the! exclusive jurisdiction of a Labour Division of the High Court as c re a te d under Section 50 of the Labour Institutions Act, No. 7 of 2004, Section 51 of the Labour Institutions A c t No.7 of 2004, provides: . j i “ Subject to the Constitution a n d the labour lows, the Labour Court has exclusive civil jurisdiction over any m a tte r reserved fp its decision b y the labour laws. ” i \ The term “ Labour laws” has been defin e d under Section 2-df the Labour Institutions Act, No.7 of 2004 to include the Laboujr t Institutions Act, 2004 and any other w ritten iaws in respect of w hich the Minister for labour matters is responsible, it follows then th a t th ^ exclusive jurisdiction over labour matters is vested to the Labour Division of the High Court. As instigated earlier, the co m p la in t by the Plaintiffs is th a t they w ere not heard in their a p p e a l by the Inspector G eneral of Police, in .other words, they are com plain ing a b o u t the unfairness of their

dismissal by the Inspector G eneral of Police and not a b o u t the adm inistrative action taken against them was unfair. ' ■ ? Since the co m p la in t is a b o u t unfairness o f their dismissal then this co m p la in t falls within the purview of labour matters th a t is within the m a n d a te of the Minister responsible for labour matters. Therefore in terms of Section 51 of the Labour Institutions Act, [No 7 of 2004 the Labour' Division of the High Court has exclusive jurisdiction to 4 Labour Division of the High Court has exclusive jurisdiction :to determ ine this dispute and not this Court. The suit ought to hav'e. \ been filed before the Labour. Division ------- — of the High Court. Since this ! -------- -— — 7 t Court has- no exclusive jurisdiction to determ ine this suit then it| is hereby strike out.'! m ake no order for costs as the issue was raised by the Court. It is so ordered. DATED at Oodom a this 27fh-day of Septem ber, 201 6. u: B.MtA'Sehe!

JUDGE | Ruling delivered in o pen court a t D odom a under my hand and seal i of the court, Inis 27th d a y of September, 2016 in the presence of /Ur. M aiim bw i, learned a d v o c a te for plaintiffs a n d Ms. M a g o m a , iearned t State ■Attorney representing the defendants. B.M.A Sehel

JUDGE 2 7ih September; 2016.