richard ndahalawe vs tanzania harbours authority another 2005 tzhc 208 23 september 2005

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE NO. 422 OF 2002 RICHARD NDAHALAWE..................... PLAINTIFF VERSUS 1. TANZANIA HARBOURS AUTHORITY} 2 . PARASTATAL SECTOR } ..DEFENDANTS REFORM COMMISSION > RULING ORIYO, J. The plaintiff, Richard Ndahalawe, filed this suit against the defendants, Tanzania Harbours Authority and the Parastatal Sector Reform Commission, claiming special and general damages. The background is that the plaintiff was formerly employed by the first defendant up to 31/12/1995 when he was terminated on account of redundancy. His terminal benefits were duly paid on 31/12/95. Subsequent to the payment, the plaintiff discovered that the first defendant had underpaid his repatriation expenses. He filed this suit claiming repatriation expenses, subsistence allowance, general damages, interest and costs. The defendants denied the claim and opposed the suit by raising two points of preliminary objection on points of law as follows:- l (i) The suit is time barred under Section 67(b) of the Tanzania Harbours Authority Act 1967 (now Cap 166, R.E 2002) Alternatively (ii) This court has no original jurisdiction to entertain the suit In arguing the objections the defendants were represented by Dr. Mapunda, learned counsel and the plaintiff was represented by Mr. Rutashoborwa, learned counsel. In support of the preliminary objection Dr. Mapunda stated that SECTION 67 of the Tanzania Harbours Authority Act (THA Act) prescribes 12 months limitation period to institute legal proceedings. He argued that the plaintiff's cause of action arose on the date he was short paid; i.e 31/12/95 and ought to have filed the suit by the end of December 1996; but the suit which was initiated by application for leave to sue was filed in January 2002. He submitted that the suit is time barred as it was filed beyond the 12 months statutory period and the plaintiff had not obtained an extension of time from the Minister. Counsel cited two unreported decisions of the Court of Appeal in support; in DDL INVEST INTERNATIONAL LTD VS TANZANIA HARBOURS AUTHORITY and 2 OTHERS, C/A. 13/02; 2 M/S FIDAHUSSEIN & CO. LTD VS TANZANIA HARBOURS AUTHORITY C/A NO. 60/99. However, Mr. Rutashoborwa was not persuaded. He stated that the plaintiffs had at first initiated proceedings to the Labour Officer in October 1996 and that was within 12 months limitation period. In the alternative, he distinguished the Court of Appeal decisions above on limitation in that those suits arose from commercial transactions as opposed to this suit which is a labour matter and is regulated by a different regime of laws. He stated that labour legislations do not prescribe such a limitation period. In rejoinder, Dr. Mapunda reiterated his earlier submissions that the suit is time barred under the provisions of Section 67(b) of THA Act. In the alternative, he argued that if the court found that the suit is an employment matter as argued by the plaintiff; the same is also incompetent because this court has no original jurisdiction to entertain it. Counsel cited a Court of Appeal decision in the case of TAMBUENI ABDALLAH & 89 OTHERS VS NATIONAL SOCIAL SECURITY FUND, C/A 33/00 (UNREPORTED). In view of Dr, Mapunda's alternative prayer on the jurisdiction of this court to entertain the suit, I will first consider on whether I have jurisdiction to proceed or not. Is the suit a trade dispute within the meaning of SECTION 3 of the Industrial Court Act 1967 as 3 amended by Act 2 of 1993? A Trade Dispute is defined as follows under SECTION 3:- "means any dispute between an employer and employees or an employee in the employment of that employer connected with the employment or non employment or the terms of the employment, or with the conditions of labour of any of those employees or such an employee." According to the Court of Appeal decision in TAMBUENI ABDALLAH case above, the word " non-employment" in SECTION 3 includes redundancy. The plaintiff's letter of termination was titled "KUPUNGUZWA KAZI KUTOKANA NA KUKOSA NAFASI YA KAZI KATIKA I KAMA MPYA YA MAMLAKA YA BAN DARI TANZANIA (REDUNDANCY)" This is sufficient evidence that the dispute in this suit is a trade dispute and the plaintiff readily conceded that the suit is an employment matter not subjected to procedures applicable to ordinary suits. Under the circumstances, the plaintiff's grievances had to follow the procedure laid down under SECTION 4(2)or 4(3) of the Industrial Court Act. If the plaintiff was a member ofTrade 4 Union at his work place he was required to follow the procedure laid down under Section 4(2) by reporting the dispute to the union branch at the place of work within 7 days. In the alternative, if there was no union branch at the work place or if the plaintiff was a non­ union member, he was required to follow the procedure laid down under Section 4 (3). The Industrial Court Act prescribes a comprehensive procedure to deal with trade disputes. It does not leave room for such disputes to come to this court directly. The Court of Appeal in the case of Tambueni Abdallah (Supra), held at page 13 of the typed judgment as follows:- " It is clear to us that trade disputes have to follow the prescribed procedure and there is no room for going to the High Court straight. The High Court has no original jurisdiction to entertain trade disputes. Such matters are dealt with in accordance with the Act." Accordingly, this court has no original jurisdiction to entertain the suit. It is incompetently before the court. I therefore uphold the alternative objection by Dr. Mapunda and the suit is struck out with costs. 5 In view of the decision I have reached on the alternative preliminary objection; it will not serve any useful purpose to consider the first preliminary objection. Accordingly ordered. K.K. ORIYO JUDGE 23/ 9/2005 6