20081010 TZHC Arusha

IN THE HIGH COURT OF T.A.NZANIA AT ARUSHA DC CIVIL APPEAL N0.1 OF 2008 (From Arusha District court Employment cause·No. 23 of 2004) MANAGING DIRECTOR) A.1.C.C ]................................................. APPELLANT Versus . -~· HASSAN BWESA AND 39 OTHERS ................................... RESPONDENTS (Appeal from the decision of the District court of Arushal (F.A. KAHAMBA, RM) mated 16th July 2007) In (Employment cause No. 23 of 2004) JUDGMENT OF THE COURT 5rH August, 2008 - 10 th October, 2008 SAMBO, J. .-The appellant in this case, Managing Director of_: .Arus11a International conference centre (A.I.C.C.l v-;_at the defendant in ' Employment cause No. 23 of 2004, in the P.rusha District court. He \ \ ' I / 'I lost the case and hence the present appeal filed through the learned advocate Mr. Mugwai. He raised eleven grounds of appeal which \ have been vehemently opposed by the respondents represented by the learned counsel, Mr. Makange. In the 1st gro_und of appeal, the appellant state that th_e trial court had no jurisdiction to adjudicate on what was essentially a trade dispute. in his submissions, the learned counsel, Mr. Mugwai referred this court to section 3 of the Industrial court Act, cap. 60 R.E. 2002, which define what's a trade dispute in the following words:- " " trade dispute" means any dispute between an employer and employees or an employee· in the employment of that employer connected with the employment or non-employment or the terms of the employment, or with the conditions of labour of any of those employees or such an employee;" and it's the contention of Mr. Mugwai, learned advocate that this case ought to be instituted in the Industrial court of Tanzania which is the only court vested with power to hear and determine trade disputes. In order to cement his position, he cited the decision of the court of Appeal of Tanzania in Tambueni Abdallah and 89 2 .. . ••. ' ·\ '.) others v.National social security Fund, Civil Appeal No. 33 of 2000 (unreported), in which their lordships maintained that:· "The High court has no original jurisdiction to entertain trade disputes" (pg 13 of the typed judgment). ·On the other hand, the learned. counsel for the respondents Mr. Makange, submitted to the effect that this is not a trade dispute, but an employment cause over breach of the redundancy agreement and its consequences. He's of the considered opinion that the District court had jurisdiction to entertain the present suit. 1 have carefully considered the reasoned submissions of the two learned advocates. upon perusal of the records of the trial court, r noted that the case was instituted in consequence to a report of the labour officer to the magistrate under the Employment Ordinance cap. 366, dated 22 nd April, 2004. The dispute was reported to him under section 139 of the Employment Act, Cap. 366 R.E. 2002, and after failing to effect a settlement, he reported the same to the court under the provisions of section 141 of the said Act, which provide thus:- "141. Where, on receipt of a report under section 139 a labour officer does not act in accordance with the provisions of section 140 and is unable to effe.ct a settlement between the ., ,J parties, he mav, at the request of either party or on t1is own motion, submit a written report to a magistrate setting out \, ,. the facts of the case." It follows here ~o state that under the Employment Act, CAP 366 R.E. - 2002, District courts have jurisdiction to entertai~ disputes between employees and employer reported to it by tt1e labour officer. on this regard, District courts have concurrent jurisdiction with the Industrial Court of Tanzania to entertain disputes between employers and employees. Even·in the Tanbueni case <supra> the ' court of Appeal of Ta~zania, decided that the_ High court has no original jurisdiction to hear and determine trade disputes, it did not say the District court have no jurisdiction to entertain trade disputes. The first ground was therefore, raised without merits and _ the same is dismissed in its ehtiretv. \ nd In the 2 ground of appeal, the appellant state that the trial court erred in law in failing to dismiss the case for the eight (8) plaintiffs who neither appeared in court rior gave any evidence to prove their respective cases agai,nst the appellant. ·submitting in favour of this ground, Mr. Mughwai, advocate, ·intofmed ... ... the . court ~ ·. - ... -:-- '. ' ~ that these eight plaintiffs did not appear -in c:o:Urt to adduce r " • - • ~ • • • ......_~'.,,.... evidence in support of their cases. He said on 29/3/2007, the same ' 1 trial court dismissed the case against them, and rrior to tl,<tt on 20/3/2006, the same court gave an order to the effect that each of \ the plaintiffs must prove his case individually, and not for one to speak for others. It's the stand point of Mr. Mugwai, advocate, that finally the trial. court was expected not to include the said. persons as decree holders, bearing in mind the decision in the case of NAFCO v. MURBADAI VILLAGE, [19851 TLR 88. In response, Mr. Makange, advocate, informed the court that the eight persons benefited under the provision of section 149 (3) of the Employment Act, CAP.366 R.E. 2002, where it's provided that in employment cases, the court may dispense with the presence of any party. on this point, Mr. Makange, learned counsel is correct so far as labour cases are concerned. But, in the instant case, on the 20 th day of March, 2006, the tral court ruled as follows:- "lt's quite evident that according to the court records, each party on the plaintiffs side has her/his own claims, 1 therefore concur with Mr. Mughway·s opinions that each party must te_stify him/her self so as to prove their claims individually." By this ruling, each of the 40 plaintiffs was duty bound to apper in court and prove his/her claims against the appellant. After closure of the plaintiffs case, the court ordered as follows: 5 I ff "(2) The case is dismissed for want of prosecution for those witnesses who did not appear to testify. No order as to cost." \ Todate, no appeal has been preferred against the two decisions of -the trial court which means they are still valid. This being the case, the trial court really erred in law _to include the eight (8) plaintiffs in the ultimate decree of the case. They were not to be Included because their case was dismissed on 29/3/2007. This ground of appeal has merits; 1 order that the said eight plaintiffs be struck off from the list of decree holders, so that the decree remains with 32 persons only. The eight plaintiffs are;- 1. Zakaria Loitoroki 2. Josephat Mvungi 3. omari Juma 4. orgenes peter s. Dorine Kisalo 6. sovares Gidion 7. Albert Ntami 8. L~kamoi Laizer. The 3rd and 4th grounds are almost on the same matter and therefore can easily be dealt with together. In the third ground, ~he appellant state that the trial court erred in holding that the latter 6 1 magistrate was " functus officio" to decide upon the issue of the respondents' inordinate delay in instituting tt1e case. · In the fourth \, ·,. ground he says the court erred to hold that the delay for eight years to institute this case was a mere irregularity whi_ch could be condoned. lnfact, the previous magistrate who dealt with the case before the one who concluded it, had tackled the issue of limitation period, and the learned resident magistrate was right to hold that he was functus officio: However, the 3rd and 4th grounds of appeal ' lacks merit in all aspects given the fact that under the provisions of section 44 (1) of the Law of Limitation Act, CAP. 89 R.E. 2002, the Minister responsible for legal affairs had extended the period for three years in which the 40 plaintiffs were to file their case in courts of law. The extension was with effect from 22/12/2003, and this case was filed on 25/05/2004 vide Labour Officer's report dated 22/04/2004. The said section 44(1) of CAP.89 R.E. 2002. Provide thus:- "44: - (1) where the Minister is of the opinion that in view of the circumstances in any case, it is just and equitable so to do, he may, after consultation with the Attorney General by order under his hand, extend the period of limitation in respect of any suit by a period not exceeding one- half of the period of limitation prescribed by this Act for such suit." 7 It's my considered opinion that the case was instituted within the . " ' time required under the current laws of this lan.d, and there was no ·\ need to discuss an_ything on the issue• of limitation period or any matter associate·d· with it. . . In the 5th gro~nd of appeal, the appellant state that tl1e trial court erred in law and fact in not holding tl1at tl1e voluntary Redundancy Agreement NA) Exh; P1 prevailed over the respondent's letters of termination on the issue of whether th·e respondents were contractually entitled to payment of shs. 70,000/ = each as a packaging allowance. In law the voluntary Redundancy agreement, exhibit P1, is binding upon the parties and no one can vary or change anything without the consent of the . ,Industrial court of ' Tanzania which registered it and, thereupon became its award.· The respondent's letters of termination were a result of that agreement, r. and therefore subject to it. The voluntary agreement, among other things, specify the rights of the parties. The redundancy letters of ! the respondents indicate that they were paid Tshs 30,000/ = as packagi.ng allowance. 1 then, -examined item . No. 6.1.1 of · the Redundancy ·voluntary Agreement, exhibit P1 and noted that packaging allowances were entitlements ·of employees in the following salary scales:- 8 . ' .. ·. ' ·---·-·. ..... : ~ PSS 1-4 l PGS 8-13 l Tshs. 100,000/ = PRS 10-10 l PGS 4-7 1 PRS 1-3 l T.shs 70 ,000/ = P0S 6-8 l I have examined the redundancy letters of the respondents, and find that they don't reveal the salary scales of ·each of them. Now, in view of the voluntary Agreement, registered by the Industrial court of Tanzania, being an award of that court, each of the 32 respondents who are the lawful decree holders in this case, are entitled to payment of Tshs 70,000/ = as packaging allowance, if and only if, his salary scale at the time of that redundancy was in the scales of PGS 4-7, PRS 1-3 and POS 6-8. For those whose salary scales· . . were ' not in this group, they must treat the Tshs 30,000/ = paid to them as packaging allowance, to be exgratia payments and the appellant can-·not and has not re-claimed the same. They can not in law, enforce payments of Tshs 70,000/ = as packaging allowance because the Redundancy Voluntary Agreement did not provide that to them. I hereby quash the decision of the lower trial court to the 9 • - I . extent where it decided that the respondents who doesn't fall under the above quoted salary scales, be paid packaging allowance of Tshs. \ ' 70,000I = and that Tshs 40,000/ = be paid to them as arrears because ,they were paid Tshs 30,000/ =. The holding of the court in the 5tn ground, applies in all four~ to the 7 th ground of appeal on the effect of the registration of the Voluntary Agreement on Redundancy, by the Industrial court of Tanzania, which becomes its Award. In the 6th ground of appeal, the appellant state that the trial court erred in law when it invoked the "contra proferentum" rule in interpreting the contractual term in exh. P1 on packaging allowance. Exhibit P1, was registered by the Industrial court of Tanzania under the provisions of section 24 of the Industrial court of Tanzania Act, CAP. 60 R.E. 2002, and became its Award. Under section 27 (1) of the Act, the industrial court of Tanzania is vested with power to interprete its own Awards, it provide thus:- "2i. - (1) If any question arises as to the interpretation of any award of the court, the Minister or the Labour commissioner or any party to the award may apply to the court for a Qecision bn such question, and the court shall decide the matter after hearing the parties, or without such hearing as it thinks fit, and the decision of the court shall be notified to the 10 . parties and shall be deemed to form part of and shall have the same effect in all respects as the award." ( emphasis addedL ·,' In this regard therefore, the District court had no power whatsoever to attempt interpreting an Award of the Industrial Court of Tanzania, using any rule of interpretation known in law, including the "contra proferentem". In attempting to interprete an Award of the Industrial court of Tanzania the learned resident magistrate acted ULTRA VIRES and therefore his act was and is invalid. The 8th and 9th grounds of appeal are centered on the issue that the respondents did not strictly prove their monetary claims in respect of the alleged underpayments on repatriation costs to their place of dom,icile and no proforma invoices tendered in court in respect thereof. In his submissions, the learned advocate, Mr. Mughwai informed the court that even the trial court admitted that they didn't prove their claims. on the other side, the learned counsel Mr. MaKange, told the court that not every case can be proved by documentary evidence and that's why the trial court did believe. the evidence of the respondents. The proforma invoices are not basic to this case, and the trial court took judicial notice on the fares of the respondents to different parts of the country. It's his 11 \ __,, ' contention that courts of law should stick to administer substantial justice, rather than relying too much on technicalities. \ \ From what my learned friend Mr. Makange submitted, 1gather the point that as Mr. Mughway, rightly submitted, the respondents did not tender in court any document from relevant .authorities to establish the right fare and or costs on repatriation. It's a principle of law that he who alleges must prove. The respondents allege that they were under paid in respect of their repatriation costs, for the court to believe what they allege, they bear the burden of proving the same. The nature of their claims did not warrant the trial court to only trust and believe their oral testimony. Documentary evidence from relevant authorities are much needed to support what they stated in court. In the absence of the same the court will have no base to conclude that they were under paid. This being the position, 1 concur with the submissions of the learned counsel Mr. Mughwai; that the respondents failed to prove their monetary claims in respect of being under paid their repatriation costs. The decision of the trial court in this respect is hereby quashed accordingly. on the 10th ground of appeal, I have not seen the base for the respondents to claim the subsistence allowance of Tshs.6,000/ = for 12 I adults and Tshs. 3,000/= for children. Even the appellant has not revealed in court what were the rates on subsistence allowance at \ ·, that time in his organization. Be it as it may, where any of the respondents is found to be not paid anything in respect of the Voluntary Redundancy Agreement, exh. P1 he .would have all the rights to be paid subsistence allowance as per circulars of the appellant from the date he received hls letter of redundancy. In the 11tn ground of appeal, the appellant states that the trial court seriously erred in law in failing to specify the exact amount of money that each respondent had been awarded. The learned advocate Mr. Mughwav, submitted that this is in contravention of Order xx Rule 6 (1) of the Civil Procedure Code, CAP 33 R.E. 2002, which provide thus;- "6.- (1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and description of • the parties and particulars of the claim and shall specify clearly the relief granted or other determination of the s~it." (Emphasis addedL What the above provision of the law insist is that the decree must specify clearly the relief granted and not the exact amount granted. In labour matters, due to the nature of the claims and reliefs j3 • ... • granted, it's usually difficult for the decree to specify the exact amount granted, which becomes available or known later on after \ ·, proper calculations based on the reliefs granted as- per decree of the court. It's no wonder then to see that the decree in the instant case specified the reliefs granted and not the exact amount for each of the decree holders. I concur with the submission of tl1e learned counsel Mr. Makange that what the court did was to give something like a formula on how to arrive at the amount to be paid. In the final analysis and for the reasons give herein above, this appeal is partly allowed ~md rejected to the extend narrated herein before. I make no orders as to costs. sgd K.M.M. SAMBO JUDGE 09/10/2008 Delivered in open court this 10th day of October, 2008, in the presence of Mr. Mughwai, advocate for the appellant and Mr. Makange, learned counsel for the appellants, who some of them were also present. 14 . I -·. . K.M.M. SAMBO JUOGEi: Ii . ,_, 10/10/2008_ Right. .of .Appeal to the court of Appear!of . I Tanzania. explained . it sgd K.M.M. SAMBO JUDGE _i i 10/10/2008,, ,i ---- . I hereby" certify this to be a true co ~,DISTRICT ARUSHA 15 i· i I :,