20130925 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 116 OF 2000 NATHAN KITHANELI KAFANABO JOSEPH MICHAEL HAULE ZEPHANIA MLELWA MALEMA . . . . . . APPLICANTS THOMAS AMINIEL USSIRI Vs. TANZANIA PORTLAND CEMENT CO.LTD . . RESPONDENTS NATIONAL INSURANCE CORPORATION OF TANZANIA LTD Date of last order-25/7/2013 Date of Ruling-25/9/2013 RULING Shangwa, J. In this case, whose hearing and determination is long overdue has come to a stand still due to a very powerful and tactical argument advanced by Mr. Mapande, Advocate 2 for 1st defendant that this court has no jurisdiction to entertain it and that therefore it should be dismissed with costs. Mr. Mapande submitted that so long as there are agreed issues before this court which have been filed, the question of jurisdiction can no longer be postponed. He said, there is case law from the highest court of the land to the effect that jurisdictional issue can be raised at any time even on appeal. Furthermore, Mr. Mapande submitted that the matters which are involved in this case are matters of employment which should be taken to the appropriate forum. He con tended that the High Court has no original jurisdiction to entertain trade disputes. In support of his contention, he cited CAT Civil Appeal No. 33 of 2000 Tambueni Abdallah and Others v. National Social Security Fund -' ,, 3 in which it was held that the High Court has no original jurisdiction to try trade disputes. In reply, Mr. Lugua for the plaintiff submitted that the issue of jurisdiction was raised by the 1st and 2 nd defendants in their respective written submissions and that on 26 th May, 2005, Mandia, J. as he then was ruled that this court has jurisdiction to try the suit which is based on a claim of Group Life Insurance other than a claim of terminal benefits arising out of employer - employee relationship. Mr. Lugua said that after Mandia, J's ruling, there was no appeal, no review or revision against it. He contended that once an issue has been raised in court and determined, the court cannot re-try the same either way. He said that the matter which is involved in this case is not a trade dispute and that therefore the case of TAMBUENI which dealt with Tambueni and others unlawful 4 termination from employment is distinguishable from this case. In rejoinder, Mr. Mapande submitted that the matter which is involved in this case is based on employment and that the defend ant could not appeal or seek for revision of Mandia, J's ruling because in law a ruling which does not finally dispose of the suit is neither appellable or revisable. It is not in dispute that the question as to whether or not the case between the parties involves employment matters was considered and determined in the negative by this court Mandia, J as he then was in his ruling dated 26 th May, 2005. That question was considered and determined by Mandia, J when dealing with one of the points of preliminary objection which was raised by counsel for the 1st defendant in his written statement of defence to the effect that the suit concerns terminal benefits which are ...! 5 outside the jurisdiction of this court. The following is what Mandia, J stated at page 5 of his typed ruling and I quote: "Finally the propriety of the suit hangs on the existence of a group life Insurance Scheme which cannot be linked to terminal benefits arising out of employer/employee relationships." In essence, Mandia, J was of considered opinion that this court has jurisdiction to entertain the suit between the parties which concerns a claim of benefits arising out of a Group Life Insurance Scheme under a Trust Deed which was entered into between 1st defendant Tanzania Portland Cement Co; LTD and the 2nd defendant National Insurance Corporation (T) LTD. In fact, Mandia, J ordered that the suit should proceed to trial on merits. \ 6 As correctly pointed out by Mr. Lugua for the plaintiffs, after the ruling by Mandia, J that this court has jurisdiction to try the suit, there was no application for its review or revision or even an appeal against its correctness. In my op1n1on, although Mandia, J's ruling was interlocutory in nature in so far as the suit is concerned, it was conclusive on the point of objection against the hearing of the suit · on grounds that this court lacks jurisdiction to hear it. Therefore, an appeal or an application for its revision could lie against it without any legal hindrance. It is a cardinal principle of law that once a point of law or fact has been determined by the court, the court becomes functus officio. With great respect to Mr. Mapande, Advocate, I am sorry to say that this court is now 7 functus officio in so far as the question of jurisdiction of this court to try the suit is concerned. For this reason, I overrule the point of objection raised by Mr. Mapande for 1st defendant and I maintain the order which was given by Mandia, J in his ruling dated 26 th May, 2005 that the suit should proceed to trial on merits. / i A.Shangwa ,./ ~ j\ JUDGE . ... _. . . --~---· ·:- (:;- ,,.. ~--.... . '"'~-~~ / , ~\ Ji;,\ 25/9/2013 ~:~/ \'fl\ !£/ "~\;) ,BS \ 1 the presence of Mr. Ndanu for Mr. Mapande for " ·dents/Defendants and Mr. Rupia for Mr. ,:rJ,i:#' ~ " fll:i!_ Plaintiffs appearing in person. A.Shangwa JUDGE 25/9/2013