20030925 TZCA Dar es Salaam

5 IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: LUBUVA, 1A., MUNUO, 1A., And NSEKELA, IA.) CIVIL APPEAL NO. 22 OF 2002 BETWEEN NELSON MREMA & 413 OTHERS ...................... ....APPELLANTS AND KILIMANJARO TEXTILE CORPORATION (LART as the Liquidator) RESPONDENTS MINISTER FOR LABOUR AND YOUTH • (DEVELOPMENT) (Appeal from the Ruling and Decree of.the LART Loans Recovery Tribunal of Tanzania at Dar es Saiaam). (Msoffe,).,) dated 10th December, 2001 In LART Tribunal Case No. 6 of 2001 JUDGEMENT MUNUO,J.A.: This appeal is against the decision in Civil Case No. 6 of 2001 in the LART Loans Recovery Tribunal of Tanzania (herein referred to as the LART Tribunal). In the said case one Nelson Mrema and 413 Others petitioned the LART Tribunal for Sh. 433,703,2311= being legal entitlements their terminal dues arising from wrongful termination of ttfeir e+riployment The appellants further claimed - 2 4 interest on the principal sum at the Commercial bank rate from the date the claim accrued until judgement and thereafter at the Court rate until payment is fully seWed, costs of the suit and any other relief deemed fit by the Court. Before the U RT Tribunal the respondents raised a preliminary objection to the effect that: The suit is res judicata in that the claim had been determined in Miscellaneous Civil application No. 37 of 1993 The Tribunal has no jurisdiction to determine a matter that has already been decided by a Court of competent jurisdiction. In the alternative the action discloses no cause of action. The LART Tribunal, before Msoffe, J. upheld the preliminary objection that the action was res judicata thereby dismissing the suit with costs giving rise to this appeal. 3 Mr. Msirikale, learned advocate, represented the appellants. The 1 5t Respondent, KILTEX (LART as the liquidator) was represented by Mr. Kariwa, learned advocate. The second respondent, the Minister for Labour and Youth (Development) was represented by Ms Sehel, learned State Attorney. Counsel for the appellants filed two grounds of appeal namely that:- The LART Tribunal erred In law and in fact by holding that the action is res judicata. The LART Tribunal failed to exercise jurisdiction. Arguing the appeal, counsel for the appellants faulted the LART Tribunal for holding that the action is res judicata because the present case and the said Inquiry No. 1 of 1992 in the Industrial Court at Dar es Salaam directly and substantially involved the same parties and issues. Mr. Msirikale contended that res judicata did not apply in the present case because the issue of terminal benefits including repatriation and baggage transport costs was not resolved 4 in Inquiry No. 1 of 1992. Counsel further contended that the issue of terminal benefits was not determined in Miscellaneous Civil Appeal No. 60 of 1997 for it was withdrawn from this Court by the appellants who thereafter instituted LART Tribunal Civil Case No. 6 of 2001 seeking terminal benefits. Mr. Msirikale claimed that by dismissing the suit, the LART Tribunal violated a cardinal principle of natural justice against the appellants who were denied the right to be heard before adverse action was taken against them, that is, being dismissed from employment. The dismissal of the suit, in the opinion of Mr. Msirikale, caused the appellants to lose their terminal benefits which is what prompted them to lodge this appeal against the decision of the LART Tribunal. He vehemently contended that the reliefs claimed in the [ART Tribunal had not been sought in Inquiry No. 1 of 1992 at the Industrial Court so the principle of res judicata did not apply in those circumstances. Both counsel for the respondents opposed the appeal. Mr. Kariwa, learned advocate for the first respondent urged the Court to uphOld the decision of the LART Tribunal on the ground that the suit is res judicata Inquiry No. 1 of 1992 in the Industrial Court of 5 Tanzania at Dar es Salaam for the reason that the two cases directly and substantially involved the same parties and subject matter, that is, the terminal benefits of the appellants upon their being terminated from the services of the first respondent. Counsel for the first respondent submitted that the suit is res judicata under Section 9 of the 1966 Civil Procedure Code, Explanation IV which provides: Section 9. No court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties under whom they or any of them litigating under the same title in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Explanation I: Explanation II: Explanation III . ......... Explanation IV: any matter which might and ought to have been made a ground of a defence or 4. an attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. With regard the above provisions of Section 9 Explanation IV of the 1966 Civil Procedure Code, Ms Sehel, learned State Attorney, contended that clause 4 of the Petition in LART Tribunal Civil Case No. 6 of 2001, is directly and substantially the same as clause 8 of Inquiry No. 1 of 1992 in the industrial Court wherein the appellants, then petitioners, sought - (i) to nullify the 1 respondent's (KILTEX) decision of termination; to order KILTEX to reinstate the complainants; to order KILTEX to pay the complainants all their benefits, i.e. salaries, leave entitlements, bonus and all other privileges that were due to them whilst now working; and t 7 (iv) all, other reliefs entitled to the complainants under the law. Ms Sehel, learned counsel for the second respondent also observed that likewise, in the Petition in Civil Case No. 6 of 2001 in the LART Tribunal at Dar es Salaam the appellants claimed from the respondents: Tsh. 433,703,231/= being legal entitlements of their terminal' dues from wrongful termination of their employment. Interest on the principal sum at the Commercial Bank rate from the date the claim accrued until judgement and thereafter at the Court rate until payment in full; Costs of the petition. Any other relief deemed fit by the Tribunal. 4, LN In the light ofwhat was sought in Inquiry No. 1 of 1992 in the Industrial Court, the learned State Attorney for the respondent maintained that the suit is res judicata so it should be dismissed. Bearing in mind that the parties in Inquiry No. 1 of 1992 in the Industrial Court were the same as the litigants in the present case, and considering that the issue of terminal benefits was adjudicated upon and determined in Inquiry No. 1 of 1992, the issue in this appeal is whether the action is res judicata. We wish to resolve the above issue by first addressing the doctrine of res judicata. As provided for under Section 9 of the 1966 Civil Procedure Code, a suit is res judicata if: it involves the same parties litigating under the same title; the issues are directly and substantially the same; the action has been finally h heard and decided; and 4 (d) the suit has been determined by a court of competent jurisdiction. The above essential elements of the principle of res judicata are also reflected in paragraph 975 of Haisbury's Laws of England, Reissue, Volume 16 which states: 975: The Essentials of res judicata: In order that a defence of res judicata may succeed it is necessary to show not only the cause of action was the same but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger; or that the same point has been actually decided between the same parties It is clear in our minds that the pleadings and proceedings in Inquiry No. 1 of 1992 involved the same parties, the appellants in this appeal. The issues in both actions are directly and substantially the same because the main dispute is the terminal benefits of the 10 appellants, the ex-employees of the first respondent. We are therefore of the view that the issue of the terminal benefits of the appellants was finally heard and determined in Inquiry No. 1 of 1992 in the Industrial Court because the appellants withdrew Miscellaneous Civil Appeal No. 60 of 1997 in the Court of Appeal of Tanzania. We wish to further observe that the Industrial Court had jurisdiction to determine the matter. In those circumstances, we are satisfied that the ingredients of res judicata have been satisfied which is to say, the present case is res judicata. The Court had occasion to deliberate on the concept of res judicata in the case of Umoja Garage versus N.B.C. Holding Corporation Civil Appeal No. 3 of 2001, Court of Appeal of Tanzania at Dar es Salaam [unreported] in which the appellant sought a declaration that he was not in breach of a loan agreement to warrant the sale of his mortgaged property, the subject of Civil Case No. 83 of 1993 and Civil Case No. 63 of 1999. In the later case, the defendant raised a preliminary objection to the effect that the suit was res judicata Civil Case No. 83 of 1993. The preliminary objection was upheld by the learned judge on the ground that the matter in 11 issue in Civil Case No. 83 of 1993 was directly and substantially in issue in Civil Case No. 63 of 1999 so the later suit was res judicata the former suit. The Court further cited the provisions of Section 11 Explanation IV of the Indian Code of Civil Procedure which is pan materia with Section 9 Explanation IV of the 1966 Civil Procedure Code of Tanzania. On res judicata, Mulla, Indian Code of Civil Procedure, Volume 1. 15 1h Edition at Page 114, states: The principle underlying Explanation IV that res judicata is not confined to issues which the court is actually asked to decide but covers issues or facts which are so closely part of the subject matter, of litigation and so, clearly could have been raised that it would be abuse of the process of the court to allow a new proceeding to be started in respect of them. We find Mr. Msirikale's contention that the issue of terminal benefits was not finally determined by the Industrial Court in Inquiry No. 1 of 1992 because repatriation and baggage costs were not dealt with, without merit because the said repatriation and baggage transport costs were part and parcel of the terminal benefits claim of ki 12 the appellants who were the petitioners in Inquiry No. 1 of 1992. The said costs ought to have been claimed under terminal benefits. In this case we are satisfied that the issue of terminal benefits was directly and substantially in Inquiry No. 1 of 1992 as well as in Civil Case No. 6 of 2001 in the LART Tribunal. It is our view that although the phrase terminal benefits was not specifically used in the relief clause of the LART Tribunal petition, the words "terminal dues arising from wrongful termination of employment" in clause 4 of the Petition indicate with certainty that the claim of Sh. 433,703,231/= was for the terminal benefits pleaded in clause 4 of the said Petition. We are satisfied that terminal dues were also specifically sought in the relief clause 8 of Inquiry No. 1 of 1992. The issue of terminal benefits, in our view, was therefore directly and substantially in issue in the present case as well as in Inquiry No. 1 of 1992. In that regard the present case is res judicata. In conclusion, we affirm the observation of the Court on res judicata in the Umoja Garage case cited supra: * 13 It is common knowledge that the objective behind the doctrine of 'res judicata is to ensure finality in litigation. In the case of Stephen Masatu Wasira versus Joseph Sinde Warioba and the Attorney General, Miscellaneous Civil Application No. 1 of 1998, Court of Appeal of Tanzania [unreported] the Court underscored the application of this principle in Tanzania. The above observation is in line with the statement at paragraph 974 of Haisbury's Laws of England cited earlier on: it [res judicata] is a fundamental doctrine of all courts that there must be an end to litigation We find that the terminal benefits claim in Inquiry No. 1 of 1992 in the Industrial Court ought to have included the claims for costs of repatriation and transport of baggage. As it is, the hearing and final determination of Inquiry No. 1 of 1992 renders the present case res judicata. For the reasOns stated above, we dismiss the appeal with costs. 117 4. 14 DATED AT DAR ES SALAAM this 25th, day of September, 2003. Z. LUBUVA JUSTICE OF APPEAL N. MUNUO JUSTICE OF APPEAL H. R. NSEKELA JUSTICE OF APPEAL I certify that this is a true copy of the original. F.L.K. WAMBALI) DEPUTY REGISTRAR