miraji makanyanga vs musoma municipal council 2008 tzhc 82 27 march 2008

IN THE DISTRICT REGISTRY AT MWANZA MISC. CIVIL APP.N0.03 OF 2007 (Originating from Musoma District court Employment Cause No.12 o f 2006) MIRAJI MAKANYAGA.............................................. APPELLANT Versus MUSOMA MUNICIPAL COUNCIL......................... RESPONDENT 13/12/07 & 25/3/08 JUDGMENT RWEYEMAMUJ: This appeal emanates from Musoma District Court (DC) Employment cause 12/2006.The said case was filed in the DC following a Labour Officer's report under provisions of the now repealed Employment Ordinance Cap 366 (settlement of labour disputes is now governed by the Employment and Labour Relations, Act 6/2004 and the Labour institutions Act 7/2004 which became operational on 20/12/2006). The defendant now respondent successfully raised a two thronged Preliminary Objection (PO) to the suit namely that; and I paraphrase:- (a) The suit was premature because no notice had been issued in terms of 97(2) of the Local Government (Urban Authorities) Act 8 of 1982. (b) The court had no jurisdiction to entertain the case because plaintiff was dismissed as per S.28 of the Security of Employment Act 62/64 (now repealed) which ousts jurisdiction of the court in such matters. The DC found PO (b) sufficient to dispose of the matter as such it did not decide PO (a). The issue for decision in this appeal therefore, is whether the DC ruling that on the facts of the case it lacked jurisdiction to entertain the case was correct/ proper. The gist of the DC ruling was that because there was a prelude of dismissal to the claim, the suit was ”founded on summary dismissal" and on the authority of K.L. Royal Dutch Airline v. Joseph Xavier Ferreira, Civil Appeal 23/93 (CAT-un reported) the court was barred from entertaining it. After going through the record, parties memoranda of appeal and reply thereto and their submissions, it is clear to me the issue for decision is whether the appellant is claim was "based or found on summary dismissal", a fact disputed by the appellant and supported by the respondent. I should first point out that in my opinion the DC misunderstood the import of the cited case which is now reported as (1994) TLR 230. In that case the TCA was considering an appeal from the HC decision which involved a mixed claim. The HC sought to apportion the suit, remove the claim over which it had no jurisdiction to hear, and proceeded on matters it had jurisdiction holding that "the court had jurisdiction to hear and determine those claims which were not based on summary dismissal... "on appeal the TCA held that; ” (i) Section 28 o f the Employment Act, 1964, ousts the jurisdiction o f the court in cases o f summary dismissal\ proposed summary dismissals and salary deductions as a disciplinary penalty;..." on summary dismissal and the claims in this case were so interwoven on their foundation; (Emphasis mine) (Hi) The court cannot take upon itself, without application from the p artiesto amend the basis o f the cause o f action merely to take the claim away from the ouster clause o f s. 28 o f the Security o f Employment Act." That case is not authority for the proposition that the court's jurisdiction to entertain an employee's claims for entitlements under the employment contract is barred. Now the suit in the DC was initiated by the Labour Officer's Report in terms of section 132 of the Employment Act, which empowers the court after receipt of such a report to proceed as provided for under section 141-143 of that law. By virtue of the said law, the DC has jurisdiction to decide employment claims on receipt of LO's Report after the latter has failed to settle the same. It would lack such jurisdiction if the suit was a mixture of employment claims and challenge of dismissal or termination. The appellant's claim in the DC was for: I. Subsistence expenses II. Train fare from Mwanza to Dodoma III. Bus fare from Dodoma to Mwanza IV. Bus fare from Musoma to Mwanza to and fro. As clearly shown above, the appellant's claim was for terminal benefits and "not to challenge the order o f summary dismissal" as rightly submitted by him. There is nothing in the appellant pleadings to suggest that he was also challenging the summary dismissal as would bring the suit in the ambit of the TCA rule in k .l. Royal Dutch Airline. On the facts of the case, the DC was in err it had jurisdiction to proceed in the matter. In view of the aforesaid, I find the appeal merited, quash the DC ruling, order that the DC proceed to determine PO (a) above and depending on the outcome thereafter proceed to hear and determine the appellant's claim on merit. At Mwanza 27/3/2007 Delivered in the presence of the Appellant in person and in the presence of Mr. Setta Inspector for the Respondent this 27th day of March 2008.