20010809 TZHC Dar es Salaam

....... . · .. ,, . -: IN T'rIE -COURT OF APPE.ilL OF TANZANIA ~· ,: ... : (2™: B;'.\MAD~"'!_~ J .A., LUBUVA 1 J .A.> An2.J...™?!lGl,¥..,J..,.'I..0.!) CIVIL APPEAL NO. 9 OF 1999 BET,\IEEN SAID lfi.BANGUIB JOHN MKOMBOZI • • • • • APPELLAN'IS KASS Il:l ABDALLAH AND THE SOKOIN.8 UNIVEHSI'l'Y OF AGRIC'JLTUP.B. • , • ~ f C • FS.,{l:-'OHJTsNT (An Appeal from the Decision of thP- High Court of Tanzania at Dar es Salaa.rn) {f.h?.J?..e.J;..?J....Jj) dated tha 23rd day of October, 1998 in ~ ~ . , 2 _ . , .1460 ot 19.9..§. JUDGMENT -- The three a:9pellauts, repraoenting 195 colleagues, were employees of the respondent University. They were rezrenched on 30th June, 1996. . '.i:hey filed a suit on 19th Hay, 199?.- in the High Court claiming terminal bsnefits and repatriation allowances. It was A..rg;:,-,i -:,n behalf of the respondent that on 13th !fay 1 ·1996 1 the respond,.,;__ t and the workers 1 organization, which was kno,m by the ac~n:ym \{)T'ill'·, entered into a voluntary agreement which was registered by the Industrial Cour·i: as an Award on 10th October, 1997 and was. published as Government Notice No. 84 of 1998. It was, thorefore 4 claimed that the High Court had no jlU'i1.'-dict.iou tlo entertain lhat suit 2.nd that. :th.;, dispute should have been heard by the Industrial Conrt. . .• /2 2 CHIPET.A, J. uphel'd that submission on the gro,und tha.t the reliefs claimed in the suit were the same as those claimed in the Awo.rd of the ·i•, ..•. Industrial Court. He said: The Industrial Court is a competent tribunal to deal with the matter and has already decided the matter to a finality. The matter is, therefore, r~s judicata. The only way the matter can come before this court is, if at all, by way of appeal. The o.ppellants were aggrieved by that ruling and have preferred this appeal. Mr. Kashi.m;bugu 1 learned advocates appeared for the appellants while Mr. Ka.pinga, learned counsel, reprea~nted the respondent. Three grounds of appeal were a.d.•·.-anc::ed: tbr-c re]iafs claimed in the suit were not the same as those :in the award of the \ ,::., ;. .•::. Industrial Court; the learned judge erre-d in upholding the prelim:inary objection; and that the matter was not res judicata. Mr. Kashumbugu argued them together. ~-·{, !·· Mr. Kashumbugu submitted that the retrenchment l3hould not have taken place before the voluntary agreement was r-egistered with the Industrial Court. He went further to say that after the retrenchmen~ the appal.1.ruits ha<l. no option but to f'i1.e tbe ,suit in the High Gm-.rt because at that. time there was no Award of the Industrial Court. He pointed out that the suit was filed on 13 May 9 1997, while the agreement was registered on 10 October, 1997, that is, an interval of nearly i:i.ve months. The learned advocate contended that there was then no Award. of the Industrial Court and, therefore, the suit could not have be~n res judicata. f· . .. /3 ,, ............_.,; 3 Mr. Kapinga 1 on the othor hand 1 argued that the binding Gffect of the agreement is ncknowledg':ld and that it has not been challenge1• He pointed out that clause 12 of the agreement provides that all disputes have to be referred to the Industricl Court. So I he argued, the appellants ought to have gone to the Industrial Court. Mr. Kapinga cited. tb,Q,--clGcision of til:is Court :iJl tiar~J:ihango v~_JL~t~a. Shoe Co,,.:., Civil Appeal No. 36 of 1996 where it was held that a trade agreement is valid even without registration. In addition he reiterated the point that the claims under the suit are the some as those provided. by the agreement. Further, and it would a:p:pear to be in the alt~_rnative, Mr. Kapinga argued toot it is not strange for two courts to be seized with the same dispute. However, he contended that once that is discovered then proceedings. in one of the courts have to be stayed. The learned advocate pointe0 out that b..fore the suit 1:,as concluded the agreeme.nt was regist.ercd as an Award of the Industrial Court and so, :l;h9 J:llZ1tt.e~ was res judicata. :: . Mr. Kashumbugu in reply said that the validity of the agre€ment is questionable :in view of the provisions of se~tion 39 (4) of the Industrial Court of Tanzania Act, 1967, as amended (hereinafter referred to as the Act)Q In the alternative~ the l~arned advocate I -- SHbmitted that even if the agreement wns valid wEhout registratio1/:"'- -.· the appell.an.u; ~re not ..obli.g_ed to aw:::tit..:.,iegist.ration instead of _:; \ '--, f~ling the suit. For clM'ity we think we better point out that Act ~o. 41 of 1967 was called the Permanent Labour Tribunal Act, 1967. That Act underwent a number of amendments -like Act No. 25 of 1982 and Act No. 3 of 1990 which cha..'1ged the citation to the Industrial Court of Tanzania Act, 1967; and renamed the TriQ1ll1al as the Court., I •·•• ;4 4•. We nre of the settled opinion that this appeal h:inges on \he import of section 39 (4) of the Act, 1'\r. Kashumbugu cited it but did not have the proviso with him in Cm.1J:'.t • The proviso ,,,as added by tho fo.bour Laws (Miscella.'1.oous .Amendments} Act, 1982, Act No. 25 of 1982 • .&o, tac C<lll!I>l~e sub-section (4) of section 39 provides as follows: No volu.~tc..ry agreement shall be oper~tive or binding on the parties thereto unless it is registered by the Industrial Cour-t: Provided that where the Industrial Gour~ does not regisb:lr a. volunt~y agreement within three months the employer and the employee may commence :ur.plementing the voluntary ~greemen:t• The proviso makes it abundmltly clear. to ua that a. volm1tary agre~ment becomes operative three months after it has been submitted to the Industrial Court for registration irrespective of whether or not it b.!ls been reg:Lstered with that Court. So, the matter now depends on when the ~greement was pNls.ented for registration and therefora from wlmt date it could be implementedo The :L,nplementation dll.te in relation to the da.te of r,;;)trenchrnent a..'1d the d..?.te of fil:ing the suit in the High Court will determine the u·:;atus of the agreement. Mr. Ka.p.inga s.?..id in the H.igh C~t that the application for registr~~ion WM made two or three days after the ~greernent was concluded. He was not controverted on that. Thus the a~em-;nt- wet.s sent for registrcction either on 15th or 16th May, 1996. So 1 without nny doubt, the p:u-tics could 11.D.ve implemented it from 17th August, 1996~ In the present CD.Se tho appellc:mts were retrenched on 30th June, 1996 1 that is before the parties co~ld hnve implemented the ••• /5 ·--------- 5 • agreement according to th~ proviso to section 39 (4) of the Acto The - suit, too, was filed before the implemento.tion cby, tho.t is, on 13 May, 1996. Hence the nppelln.nts co1,1ld not rove used the agreement o.nd the ~ c-cur.se. C>£ act.ion they had wrui f:i..ling a suit in the High Court. We think that we better point out two things: On0, the d.D.te of filing the plaint is shown in the record of appe3.l to be 13 Mo.y, 1996 but the date of verification of the plnint is indicated as 24th December,. 1996. Obviously there is ,..n error, Since the written statement of· .;; defence was verified and fil.ed on ,rd Dec.ember, 1996,· then 24th December, is definitely a mistake. Two, the learned trio.l judge cited in his ruling the date of filing the plaint ns 19th May, 1996. This, too, wns an oversight. The original file ~ cleur tbot the plaint wt~ filed on 13th May, 1996. In any case whether the d,-:,,te of filing Wi'.'.S 13th or 19th May, 1996, both dates were well before the date of :implementing the a.g.recment, t..b.:.\t is, 17th August, 1996, The suit in the High C~urt was, therefore~ not res judi£E-ta. And so, the appeo.l is allowed a."ld the l5uit is sent back to the High. Court to be heard on merits pcifo:r;e another judge. A.S.LoRAMADHANI !Ul..STICE OF Af.f_~ Dc~.Ll.1'BUVA :I_tJE-TICE OF AJ."JPEAL K.S.K.LUGAKINGIRA JU§T_l9)L9F QZ~ that th:is is a vue copy of the original•