20140226 TZHC Arusha

u· IN THE HIGH COURT OF TANZANIA . LABOUR DIVISION ATARUSHA LABOUR DISPUTE NO. 1 OF 2011 i RAJAB SUVA & 43 OTHERS ................... ~~ ...... APPLICANT VERSUS. ARUSHA INTERNATIONAL CONFERENCE CENTER ........................................ ~ ............... RESPONDENT RULLING. 18/02/2014 & 26/02/2014 Aboud,J This rulling emanated from the preliminary objection raised by the counsel for the respondent Mr.Mughwai in labour dispute .. · between the Arusha International Conference Center and Rajab Suya &42 Others. The brief facts leads to this dispute are on July 2004, the employments of the complainants were terminated by the 1 respondent through a redundancy exercise conducted in accordance with a voluntary redundancy agreement. The voluntary redundancy was entered between the respondent and TUICO on behalf of the complainants. The voluntary redundancy agreement was duly registered by the then Industrial Court of Tanzania. The agreement became binding anq enforceable in law, the complainants were given their terrl}inal benefits. Dissatisfied with their termination of employment complainants filed a suits against the respondent in the ~igh:-court of Tanzania at Arusha, -~"-- Civil Case No. 3 of 2005. Th€ ·suit was dismissed by the High Court for luck of jurisdiction on 19th December, 2007. Dissatisfied again the matter went to Courf of Appeal, vid Civil Appeal No. 113 of 2007, where'\Nas also . _,. struck out on 1st September, 2010. '.: In 2011 the applicants decided to file the present complaint. In reply to. t.he statement of complaint the respondent raised five points· of preU~inary objection however during hearing the respond~nt-decided to abandon three of them and remained with only two which are; . (a} The complaint is hopelessly time barred. (b) That the Labour Court has no jurisdiction over the Complaint. 2 J Mr.H.Makange, learned counsel represented the complainants while Mr. A Mughwai, learned counsel represented the respondent. Arguing the preliminary objection Mr. Mughwai on its first . ground he said the complaint at hand is . . barred by the law of limitation Act, (Cap 89.R.E 2002). Under this law suits based on contract which is not otherwise provide<:l for by the law is six years. He said the complaint that is before this court is a trade dispute which ought to have been filed under the provision of the Industrial Court of Tanzania Act• (Cap.60.R.E 2002). Since the Industrial Court of Tanzania (ICT) legal regime did not provide for the time limit concerned, complainants resorted to the Law of Limitation Act. Mr. iMughwai said that on the pleading at page 4 paragraph 4,5 of thy complaint shows the cause of action arouse 30th July, 2004 a.t Arusha, instead of this case been filed to the Industrial. Court of ·Tanzania, they instituted a civil case at Arusha, which was. dismissed for lack of jurisdiction, subsequently they lodged an appeal to the court of appeal which the same was struck out. · Mr. Mughwai submitted further that the complainants in their complaint they cited the provision of section 21(1) of the 3 ,, Law of Limitation as enabling provIsIon for institutions of this case. Section 21(1) of the Law of Limitation Act excluded the time for proceeding instituted and prosecuted bonafide in court without jurisdiction, Mr Mughwai add that the exclusion of the period under section 21(1) of the Law of Limitation Act is not automatically, the complainants must prove that they were prosecuting their case in wrong court in goodfaith in order to enjoy the exemption under section 21( 1) of the Law of Limitation Act. Under Order 7 Rule 6 of the Civil Procedure Code (Cap.33 R.E 2002) the statement of complaintwas supposed to show the . .· ,·) reasons for seeking the e*emption in filling the suit on time, he said there was non disclosure, in this case. As regard to second point of preliminary objection he ,:,,, ·,•,·. submitted that this court has no jurisdiction to take cognizance of the dispute , which arose from the repealed law. That the complainants Were not supposed to directly go to Labour Court. They couid, have only done so through a Labour Commissioner as provided for under Section 42 of the amendment Law of 2010, Act-No.,:"11 of 2010, which provide; the principle Act, that the Employment And Labour Relation Act was amended to give effect that matters which arose before the Employment and Labour 4 Relation Act were to be dealt with by the Commis.sion for Mediation and Arbitration after were referred to it by Labour Commissioner. And they came to the Labour Court by way of revision, this is provided under paragraph 13(1) and 13(5) of the Act No.11 of 2010. Mr Mughwai said that the second way ofwhich complainants could access this court was if they had ··fHed their labour dispute to the Industrial Court of Tanzania ·(IC:T)<and that dispute has ,l"',; ' , remained pending until the Employment and Labour Relations Act come into force as per paragraph- 1,3(3)(b) . ... of the third Schedule ~' of the amended Ernploym~_nt an_d Labour Relation Act, No.6 of 2004, which was amended by:•Act No. 11 of 2010. Mr. Mughwai further submitted that the jurisdiction of this Court is exclusive in labour disputes subject,.to the Constitution and Labour Laws as provided under.. section 51 of the Labour Institutions Act, No. 7of 2004. So. the ~_o~Plainant failed to follow the proper law in instituting ·this _case directly to this Court. In other words this , . court Vvas riot properly moved by the complainants. Therefore he '.J: ' prayed the complaints should be dismissed. ·; .. Mr Makange in response from the submission of the counsel for the respondent wished to start with the issue of jurisdiction 5 ... that Labour Court is a division of the High Court according to the definition given by the Labour Court Rules, GN .106 of 2007 and section 51 of the Labour Institution Act, No. 7 of 2004. Also Rule 23( 1) of the Labour Court Rules provided for the Complainant to present the complaint to the court so long is within the pecuniary jurisdiction of the High Court and ·...· arising out of Employer/Employee relationship. As to the first ground, Mr. Makange said that this is declaratory suits which time lirrtit is six ( 6) years. However under section 21 of the Limitation :Act there is exclusion clause of time for the matter prosecuted bonafide. He said their case was before the High Court and in, . Court ot-ft:ppeal so the complainant acted in • l< ; ~ conformity with the requirement of section 21 of the Law of Limitation Act. Mr. .Makange said the time started to run from 1/9/2010 whenthe case was struck out by Court of Appeal. As to the facts to 6e pro;ed before they enjoyed exemption it will no longer a preliminary objection as it was decided in the case of Mukisa Biscuits Manufacture Company v. West Endnile, '·, .• 1969,EA pg 696. That, "preliminary objection are those which are purely point of law and not facts to be proved." 6 In his rejoinder Mr. Mughwai submitted that Rule ,2~(1) of the Labour Courts Rules which were cited by the Mr. Makange were to be read together with The Employment ·and Labour Relation Act. The relevant Act provides for the procedures to access the Labour Court. On limitation Mr. Mughwai said that the complainant cannot rely on it as their complaint did not contain the facts that the matter was pending before ,,,. the High Court, and subsequently Court of Appeal. ,Before going to the qj"scussion of the two point of preliminary point of law let me reiter9te the position of the law. It is clear from the facts .. that the cause of action in this ,., ,·, matter arouse in July 2004, when The Industrial Court of Tanzania (ICT) was in operation under the Industrial Court Act (Cap 60 R.E 2002). However The Industrial Court become defunct on 05/01/2007 when The Employment and Labour Relation Act, No. 6 of <2004 came in to force. The Act established the Labour Divisioh of the· High Court and the CMA and became in to force •.: "'• .......... ' from 5/1/~007. Moreover paragraph 13 of the Third Schedule to the'Ac:tvested power to the CMA as well as Labour Division of the High Court to determine the disputes which were pending before · · the defunct ICT. I quote; 7 "Disputes not finalized in terms of the repealed laws within 3 years of the commencement of this Act shall automatically fall within the · jurisdiction of the Commission. The Commission shall have the power to arbitrate or refer the dispute to the Labour Court for decision. In determining the: dispute under the provisions of this paragr~ph the substantive ..... - .. law at the time the dispute.'arose shall apply". From the position of/the'· la.~,,,. the ICT seized to operate ( (became defunct) on 05/01/2007 after the Employment and Labour Relation Act,, NO.6 of 2004 came in force which established the LabOur Division of the High Court. As I said before · The Labour Division of the High Court inherited the disputes which were pending at the ICT by virtue of Section 42 of the . .J • I Miscellane6us·Amendments (No.2) Act No. 11 of 2010. Therefore, the Labotir Qivision of the High Court had powers to determine only" those disputes which were pending at the ICT until 05/01/2007 when the Act came into force. In other words the disputes which were not filed at the ICT before 05/01/2007 were to follow the procedure of the Act. 8 From the above position of the law, submission by the parties and the records before the court I find it appropriate if I will start with the issue of jurisdiction of this court on dispute arouse before the operation of the Act, that is The Employment and Labour Relation Act, No. 6 of 2004. The fact _that the cause of action arouse in 2004 before the operation of the Act, the right court was Industrial Court of Tanzania,. the action by the applicants to file a suits to the high court it was wrong. This court emanated his power to determine cases which were arouse before the operation of the Actunderparagraph 13 of the Third . . ,· ,.1·· \ Schedule to the Act vested power to the CMA as well as Labour Division of the High Court to determine the disputes which were pending before the defunct ICT with a grace period of only three years. The fact.thg_t toe present dispute was not pending before , .. ·, •·,·: '· the ICT, it was a new dispute which was filed when the Act was in operation . Therefore lam of the view that the present dispute ought to be instituted under the procedure as per the current Labour Laws. Nevertheless the procedure for filling dispute under the current labour laws is provided under Rule 10(1) of the 9 Labour Institutuions (Mediation and Arbitration) Rules GN.64 of 2007 which provide; "Dispute about the fairness of an employe·es termination of employment must be referred to the Commision within thirty days from the date of termination or the date that the employer made a decision to terminate or uphold the decision to terminate." Basing on the above provision, the records on the present dispute reflects vividly thc-lt the cause of action in this dispute ~ arouse in 30 th July, 2004 which means nine years passed before it landed to this court. Ang since this cause of action arouse before the operation of the current labour laws. It is Cristal clear that ' ,, disputes which arose when the repealed law were in operation and therefore the _complaint was not supposed to directly go to Labour Court. They could have only done so through a Labour Commissioner -as provided for under section 42 of the Written Laws (Miscellaneous Amendment) Act No. 11 of 2010, paragraph 13(1}' and (5). In that regards I agreed with the respondents counsel that the dispute was improperly before this court and this 10 t \..-- court has no jurisdiction to determine the dispute which was not properly referred. Having discussed as I did, I agree with the respondent submission that this Court has no jurisdiction to entertain the dispute which was improperly referred to. In the result I find the preliminary objection has merit. The , complaint is here by dismissed. No 9rders as to costs. 11 Date:26/ 2/ 2014 Coram: Hon. I.D.Aboud,J Applicant: For the Applicant: Mr. Mughwai for Mr. Makange for Respondent: '. . For the Respondent: Mr. Allute Mughwai, Advocate CC: Subira '. Order: Ruling is delivered on 26/2/2014 in the presence of 0 Mr.Mughwai for the Respondent and for Makange for the applic~ints. ·"