20051018 TZHC Mwanza

HC. CIVIL APPEAL NO. 24 OF 1999 {Appeal from decision of Mwanza District Court at Mwanza in Civ. Case No. 25 of1996} MAGABE s/o MAGIGE .......... ;.................................APPELLANT Versus THE DIRECTOR - VICTORIA FISHERIES ................. RESPONDENT 4 th Aug. 2005 & 18th Oct. 2005 JUDGMENT RWEYEMAMU, JUDGE: This appeal arises from an Employment cause, in the district court, commenced by a Labour Officer's Report I in terms of S. 132 of I the Employment Ordinance. The appellant It.las a former employee o~ the respondent and was not satisfied with the award passed by that court on the different claims submitted by him. The respondent was represented by .Counsel Mr. Matata Advocate in the district court, and Messer. Ishengoma, Masha Mujulizi & M~gai (Advocates), in this appeal. I should mention that both sides cited a number of· useful authorities in this appeal, relating to rnployrnent rights and privileges on termination of employment co tract. tJnfortunately I will not refer to them, as the decision is based on a different issue, not directly raised by parties. That issue is r vealed in the following background. '\,.1._ As already. stated this matter commenced with the Labour Officer's report. After the respondent had filed a. written statement of def~nse, _the appellant/plaintiff pray~d and . was granted. leave to amend the plaint. The trial, whose decision is appealed, proceeded on that amended; plaint and defense. It is may be pertinent to go further back in the claim, in order to understand the subsequent decision in this case. When the appellant was terminated or dismissed by his employer the respondent, he first sought help of the trade union challenging the action. When efforts to re-instate him failed, he took the matter to the Labour office, claiming terminal benefits, namely payment of leave not taken from 1994 to 1996. (This is -as per filed Labour Officer's Report). Returning now to the amended plaint, the appellant was; I challenging the termination and summary disrtiissal -. as per para. 15 of the amended plaint, for which he claimed 2,000,000/= as well as claiming other terminal benefits including; u paid overtime; unpaid leave; subsistence; repatriation; severan e and gratuity. The amended plai~t contained mixed dai_ms; reflering that t~e appen_ant was challenging the summary d1sm1ssal, ancll also cla1m1ng terminal and other employment benefits due. I ground 10 of his memorandum to this court, he has added p yment in lieu of notice on the list of claims, although the same was at in issue at trial, it is further evidence· that the claim was party based on summary dismissal. 2 Now, so long as the appellant's claim in the district court included a dispute over his dismissal, that court lacked jurisdiction to deal with the matter. The appellant was a watchman, clearly not a member of management, as such, he could only - challenge the dismissal - a disciplinary action; and seek other remedies through the Labour Conciliatory Board, as provided for under the Security of Employment Act, 1964. Under Section 28 of that law, jurisdiction of ordinary courts is ousted. As stressed by the Court of Appeal in KLM Royal Dutch Airlines Vs Jose Xavier Ferreira, (1994) T.L.R. 230, a similar case of mixed claims: " (1) Section 28 of the Employment Act;. 1964, ousts the Jurisdiction of the court in cases of summary dismissal, proposed summary dismissals and salary deductions as a disciplinary penalty;---" (ii) The court cannot split a claim once it is partly found to be based on summary dismissal and the claims in this case were so interwoven on their foundation; (iii) The court cannot take upon itself, without, application from the I parties, to amend the basis of the cause of 4ction merely to take the claim away from the ouster clause of s. 8 of the Security of Employment Act. " In that case, the CA reversed the Hig Court decision holding that "the court had Jurisdiction to hear an determine those claims which were not based on summary dismiss I" and leave the later of which it had no jurisdiction. 3 .. ~ ...~-=~--· ,..,,.___.._,. : .. ,_. ·•.,.- 1 In the result, I find that so long as the appellant's case contained mixed claims partly ba'sed on summary dismissal; the ·district court had no jurisdiction in the whole matter; the proceedings and decision of the dJstrict court were a nullity. They are accordingly quashed. ~.RWEYEMAM JUDGE 18/10/2005 Judgment delivered in the open court at Mwanza on 18th October 2005 in the presence of appellant in person and in the presence of Mr. Malango Advocate for the respondent. Right of Appeal Explained. . R. M. RWEYEMAM JUDGE 18/10/2005 4