20060811 TZHC Arusha

IN THE HIGH CO ,.RT OF TAN2Al'JIA ' AT ARUSHA . - I CIVIL CASE N!O. 7 OF 2005 ' I - PETER NOEL KINGAMKONO _l_ ________________ .. ___ ~----- PLAINTIFF · - vlrsus - · '. I ·. TROPICAL PESTICIDES I RESEARCH .INSTITUTE ----""-:i..I __________________. OE FENO ANT I I 11 RU[LING MUSSA, J. i I • I Tl1e plaintiff w110 was emi ployecl by the defendants as 1 , the Director of Finance and Adn1inistration 11ad l1is services I . termiQated on the 2stl1day ofj May, 200s. He now sues the 1 defendants througl1 the {ervices ,I of Mr. Mal<ange, j • Advocate, for the following 01~bers:- · il A declaration that t11E!l termination Was wrongful, null and void and; tl1att tl1e position of Director of I Finance and Ad111inistration sl70Uld re111ain vacant . I' . pending the determinaf ion of tl1e suit; ii) Financial co111pensatiion of a su111 of I Tsl1s.72,ooo,0001 = to 9over tl1e period between tern1ination and retire~ent age; iii) In the alternative to (ii) above, tt1e reinstatement of the plaintiff iv) General damages for breach of contract; curtailment of the possibility of lucrative gainful employment and; loss of rigl1ts and priviledges attendant to l1is position; v) Exemplary damage for defan1ation to the tune of TSllS.180,000,000/ =; vD Interest on tl1e decretal an1ount fron1 the date of judgn1ent to tl1e date of full settlement at the Bank rate; vii) costs of tl1e suit and; viii) Any other reliefs as the court may deem fit to grant in tl1e circumstances of tl1e case. The defendants are resisting the claim through Mr. Bashal<a, Advocate who raises preliminary points of law challenging the very con1petency of the suit. Learned Advocates were agreed to argue the points of objection in writing and; the substance of the attacl< by learned counsel for tl1e defendants upon tl1e competency of tl1e suit is first, that this suit is sub-judice tl1e plaintiff having commenced proceedings under t11e Industrial court Act and, as 2 such, it cannot be entertained by this court and; second, that this court has no original jurisdiction to entertain the suit the matter being a trade dispute. Dealing with the first lin1b of t!1e preliminary objection, Mr. Bashal<a submits that the plaintiff took steps tow~rds 11aving this n1atter resolved by the Industrial court. counsel argues tl1at subsequent to tl1e termination tl,e plaintiff did, in fact, report a trade dispute to tl1e Labour officer; attended to a conciliation whicl1 failed ancl; the labour officer transn1itted a report to tl1e con1missioner to that effect. Learned counsel subn1its that the plaintiff having invol<12d tl1e requisite 111achinery to having his matter resolved by tl1e lndust,•ial court; and not 11aving abandoned tl1e course; cannot have it both ways as the n1atter now presEntly before me will be barred by the rule forbidding proceeding with a matter which is sub-judice. To this submission Mr. Mal<ange counters that the rule relating to 111atters sub-Jue/ice is inapplicable in the situation at 11and in as n1uch as no suit is now pending before tl1e Industrial court. Learned counsel for the plaintiff submits tl1at tl1e labour officer was, 3 after all only approached so that the plaintiff could exploit the available mediation I11acl1inery. It will now be convenient if I address learned rival arguments on this issue and I propose to dispose of the matter very briefiy. To begin witl1, it is elen1entary tl1at tl1e object of I1aving a bar to a trial of a suit in wl1icl1 tl1e matter in issue is a!so directly and subst2ntially in a previously instituted suit; is to prevent couI~ts of concurrent jurisdiction froI11 siI11ultaneousIv dealing with two parallel suits in respect of tl1e same subject matter and between tl1e san1e parties. I n1ust, I1owever, express at once tl1at it is the pendency of a previously instituted suit that constitutes a bat~ to tl1e trial of tl1e subsequent suit. 1 tal<e tl1e position tl1at in order for tl1e rule to apply it is not enougI1 for tl1e defenc!ant to merely indicate tl1at tl1e plaintiff has tal<en steps towards filing a parallel suit in a court of concurrent jurisdiction. Tl1ere must be a pending suit previously filed in a cou,~t of concurrent jurisdiction. To this end, tl1e first lin1b of tl1e preliminary objection by counsel for tI1e defendants is misconceived and; if at all, tl1is court 11as concurrent 4 ' i jurisdiction with the lndu$trial court it is the trial in the latter court which will be baI~red by the rule. 1 have said assuming this court has concurrent jurisdiction witl1 tl1e Industrial cou,~t vvitl1 design for ,I ,1 the issue is the subject qf tI1e second: limb of the I preliminary objection by counsel for tI1e defendants to wl1ich I now turn to. Expounding on tI1e point of objection. i Mr. '1 Basl1al<a · sub111its that tl~e cleterminant factor is I wI1ether tl1e complaint giving rise to t11e present suit falls squarely witl1in tl1e expression trade dispute as defined under section 2 :of tl1e lndustI~ial court of i • :1 . Tanzania Act. Lean1ed counsel for defendants argues !i that once a complaint giving I~ise to a suit is determined to be a trc1de dispute; · tl1e original ~ jurisdiction of tl1is court is ousted. He refers to the i decision of tl1e court of Abpeal in Civil Appeal No. 33 ,I of 2000 (Unreported) Tambueni Abdallah and Others v NSSF; wt1ict1, in effect, h:eId tI1at tI1e High court has no original jurisdiction to entertain trade disputes. !" ' From the ot11er end, !VJr. f\Jlal<ange counters that ;' all what the plaintiff is : seeking is a declaratory remedy whicl1 is available in tl1e high: court in its original jurisdiction. He cites a considerable body of 5 autl1orities which, if I understood i him well, support the contention tl1at this i~, ratl1er, a judicial review !! proceeding being pursue,d by way of a declaratory suit. Whatever that mea~s·. Quite franl<IY I do not understand tl1is argun1en\tI, but I need' not detain I , n1yself in u,e submission a~y furtl1er as the argun1ent I seen1s to be entirely witl10~1t su!Jstance .. A sl1ort answe1· to Mr. Mal<ange's submission :I seerns to be tl1at tl1e issl,e. is not tl1e n1anner or "1; fasl1ion tl1roug11 wl1icl1 a con1olaint is presented. It is tl1e nature or content of t,11e con1plaint wl1icl1 is the dete1•minant factor. It iseen1s to me that any I , con1plaint giving rise to a $uit vvl1ether presented by i vvay of a declarato1·y suit 01~ w11atever fasl1ion will not be maintained in tl1is court once its content is I detern1ined to be a trade· qispute. I In the n1atte1· pres~ntly before me, there appea,~s to be no dispute in1 tl1e pleadings tl1at on the ;i st 1 day June, 2005, subsequ~ nt to tl1e tern1ination, the 1 ;, plaintiff furnis/1ed a repcprt of a trade dispute i between l1imself and tl1e defendants to the Labour Officer in terms of section 4 of t11e lndust1•ial court of Tanzania Act. Tl1e L!bour Office:r in turn ~ ' acl<novvledged tl1e 1·eport ~Y issuing a certificate in 6 terms of Regulation s (3) and (4) of the Industrial court of Tanzania Regulations to tl1e effect that a trade dispute between the parties occurred on the 20 th day of June, 2005. I cannot conceive of a complaint more befitting tl1e definition of a trade dispute than the one presently !Jefore me. Accepting, as I do, tl1at tl1e con1plaint giving rise to tl1e present suit is a trade Cispute it follows that Tan1bueni applies and tl1e orig i ;1al jurisdiction of this court will be ousted. Learned counsel for tl1e plaintiff advises that Tan1bueni would not be applicable in the circumstances of t!1is case 111uc1·1 as it was detern1ined in an appeal en1c:mating frorn t11e High court exe1•cising its original jurisdiction wl1ile in the present case tl1e plaintiff is n1oving tl1e High court to exercise its judicial review ju1•isdiction. With respect, there is nothing remarl<able about tl1is sub111ission as what is binding upon tl1is court is tl1e decision tl1at the High court has no original jurisdiction to entertain trade disputes. It would, rather, become incredible and, indeed, inexplicable if tl1is coL11·t is to explain away Tambueni on tl1at argument. 7 . ,, To this end, I am satisfied tl1at this suit founded, as it is, on a trade dispute is inco111petent and in tt1e result; tl1e same is strucl< out with costs. Order accordingly. 8/4/20]6 11/8/2006 K.M. Mussa J., For the Plaintiff: Mr. Mal<ange For tl1e Defendant: Mt~. Basl1al<a Ruling delivered in c11an1bers in tl1e presence of tl1e . - , r parties. .. . . \,J,J---- __ ~~- K• IV"'i. 1v,r..1.;;;.;; .. \,,-, . . . f"'A - -~ . . . . • -~ 'c'K, JUDGE 11/08/2006 KMM/HJl\/1 8