ottu others vs ubungo garments 2008 tzhc 56 19 june 2008

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CORAM: ORIYO, J.. SHANGWA. 3. AND MIHAYO, J. CIVIL APPEAL NO. 194 OF 2005 (Originating from Revision Application No. 40 (B) o f2004 delivered by Hon. Mipawa (Industrial Court) OTTU on behalf of MWANAISHA JUMA AND OTHERS....................... ......... APPELLANTS VERSUS UBUNGO GARMENTS .................. RESPONDENT RULING OF THE COURT Shanqwa, J. On 17th October, 2005, the Appellants in this case lodged a Memorandum of Appeal in which they raised one ground of appeal namely that the Industrial Court of Tanzania in its revisionary powers erred both in law and fact j in holding that the Appellants were not entitled to payments of salary increments as per Scopo directive No. 57. 2 On 3rd October, 2006, the Respondent filed a notice of preliminary objection based inter-alia on two major grounds namely:- 1. That the Court lacks jurisdiction to entertain appeals from the Industrial Court of Tanzania in the absence of a specific Statute which pronounces that appeals from the Industrial Court of Tanzania are to come to the High Court. 2. That the appeal is time barred for the reason that the decision of the Industrial Court of Tanzania was delivered on the 23rd June, 2005 and the appeal was lodged on the 17th October, 2005 being out o f time contrary to law. These two grounds of objection were argued by the parties through written submissions. On the first ground of objection, the Respondent stated that there is no specific Provision of law or Statute which provides for appeals from the decisions of the Industrial Court of Tanzania to the High Court of Tanzania. In support of its submission, the Respondent relied on the earlier decisions of this court in High Court Civil Appeal No. 42 of 2001 H.M. Chamzim and 71 others Vs. Tanzania Breweries Ltd (unreported) and High Court Civil Appeal No. 119 of 1997 Tanzania Film Company Vs. Paulo Lukopelo (unreported). In both cases, it was held that the High Court has no jurisdiction to hear appeals from the decisions of the Industrial Court of Tanzania because the Permanent Labour Tribunal Act, 1967 did not provide for the forum and mechanism of appeal from the decisions of the Industrial Court of Tanzania and that it does not contain specific provisions and procedures for appeals from the Industrial Court to the High Court. It was observed in both cases that it is the role of the legislature to provide for such provision and that the Court was bound by the doctrine o f separation of powers. On the first ground of objection, the Appellants took the same position like the Respondent by stating that there is no specific provision of law or statute which provides that appeals from the Industrial Court of Tanzania are to be preferred to the High Court of Tanzania. However, they argued that although there is no specific provision or Statute allowing appeals from the decisions of the Industrial Court to the High Court, Article 13 of the Constitution of the United Republic of Tanzania, 1977 gives an aggrieved party a right of appeal. On the second ground of objection, the Respondent submitted that according to paragraph 2 of Part II of the First Schedule to the Law of Limitation Act, 1971, the Appellants were supposed to lodge their appeal against the decision of the Industrial Court of Tanzania within 45 days from the date of the decision which was delivered on 23rd June, 2005 but that instead of doing so, they lodged their appeal on 17th October, 2005 when it was out of time. In reply to this ground of objection, the Appellants submitted that under S. 19 of the Law of Limitation Act, 1971, the period of time requisite for obtaining copies of proceedings, judgment and decree have to be excluded. They stated that the decision of the Industrial Court was delivered on 23/6/2005 but that they obtained copies of proceedings, judgment and decree on 5/9/2005 when they were ready for collection. They argued that the period which has to be excluded is a period between 23/6/2005 and 5/9/2005. In our ruling, we propose to start with the second ground of objection and end with the first ground. On the second ground of objection, we find that it is true that the 6 Appellants obtained copies of proceedings, judgment and decree of the Industrial Court after the expiration of the statutory period for lodging appeals. This true fact was not opposed by the Respondent. As correctly submitted by the Appellants, section 19 of the Law of Limitation Act requires that in computing the period of Limitation, the period of time requisite for obtaining copies of proceedings, judgment and decree have to be excluded. In this case, we do exclude that period and hold that the period of limitation started to run from 5/9/2005 when the Appellants obtained copies of proceedings, judgment and decree of the Industrial Court in Civil Revision No. 40 (B) of 2004. This means that the Appellants' appeal is within time. Now, we move to the second ground of objection. Although the Appellants conceded to the Respondent's argument that there is no specific provision or Statute allowing or permitting appeals from the decisions of the Industrial Court to the High Court, we wish to state that this argument was at one time in the past valid but currently it is no longer valid. This is due to the amendment in the Industrial Court of Tanzania Act, 1967 that took place in 2003. Also, the cases which were cited by the Respondent in support of the second ground of preliminary objection that this court has no jurisdiction to entertain Appeals from the decisions of the Industrial Court in the absence of a specific provision or Statute, were outdated by the amendment in the Industrial Court of Tanzania Act that took in 2003. The view that there is no specific provision or statute for appeal from the decisions of the Industrial Court of Tanzania to the High Court and that this court has no jurisdiction to entertain appeals from the decisions of the Industrial Court of Tanzania was arrived at by this court in High Court Civil Appeal No. 42 of 2001 H.M. Chamzim and 71 others Vs. Tanzania Breweries Ltd (unreported) and High Court Civil Appeal No. 119 of 1997 Tanzania Film Company Vs. Paulo Lukopelo (unreported) while interpreting the provisions of the Permanent Labour Tribunal Act, 1967 which had no such provision. When the Industrial Court of Tanzania Act was enacted in 1967, Parliament did not as well incorporate any provision for appeal from the decisions of the Industrial Court of Tanzania to the High Court of Tanzania. The provision which was incorporated for appeal from the Industrial Court of Tanzania to the High Court is S. 27 which provided for appeals from the Industrial Court to the High Court. The said section provides as follows and we quote:- "S. 27 subject to the provisions of this section, every award and decision of the court shall be final and not liable to be challenged, renewed, questioned or called in any court save on the grounds of lack o f jurisdiction in which case the matter shall be heard and determined by a full bench o f the High Court" Later, the legal position in the above quoted provision of law was changed by the legislature to allow appeals from the decisions of the Industrial Court to the High Court by a full bench. This change was brought about through the amendment that was effected in the Industrial Court of Tanzania Act, No. 41 of 1967 by the Written Laws (Miscellaneous Amendments) Act No. 11 of 2003. Under the schedule to the said Act, the Industrial Court of Tanzania Act is indicated to have been amended as follows and we quote:- "The Act is amended in subsection (1 C) and substituting for it the following - (1C) subject to the provisions of this section, every award and decision o f the court shall be called in question on any 10 grounds in which case the matter shall be heard and determined by a full bench of the High Court In the light of the above quoted provision, the Respondent's submission that this court has no jurisdiction to hear this appeal fails. In general, the preliminary objections that have been raised by the Respondent have no merit and we hereby overrule them with costs. Hearing of the Appeal on 27/6/2008. JUDGE A. bnangwa JUDGE 11 Delivered in court this 19th day of June, 2008 in the presence of Joseph Komba for Appellant and in the absence of the Respondents. A. Shangwcr JUDGE 19/6/2008