20010809 TZCA Dar es Salaam1

........ '~---◄Ir ,P i . IN THE COURT OF APPEAL OF TANZANIA ~~~~~--::- A'l' ...--.- DAR ES SALAAM CIVIL APPEAL NO. 9 OF' 1999 BETWEEN SAID MB.t.JWULE JOHN MKOMBOZI 0 • • O O O O O APPELLAN·rs KA.'1SIM ABDALLAH AND THE GOKOIN..8 t..'NIVEIIBITY OF AGRIC~LTUf~, •• 0 • • • 0 C C O 0 Um Appeal from the Decision of the High Court of Tanzania at Dar es Salaa,rn) dated tha 23rd day of October, 1998 in JUDGMENT ; ~:a~-- ·--~-- RJU-iADHANI J .A.: .. ~~ The three a:9pellan.ts, reprasenting 195 colleagues, were employees of the respondent University. They were re-trenched on 30th June, 1996. They filed a suit on 19tl:diay, 1997,· in the High Court claiming terminal -r-·,..) b6nefit•s and repatriation allowances.· It was ,.trg,:r->rl. e,n behalf of the j 1------< respondent that on 13th May, 1996, the respond"':;:. t nnd the workers 1 organization, which was knovm by the ac~nym •-OTrlJ'', entered into a voluntary agreement which was registered by the Industrial Cour·c as an Award on 10th October, 1997 and was. published a.s Government Notice No. 84 of 1998. It was, therefore• claimed that the High Court had no j.urisdicti.on too entertain that suit and that the dispute should have been heard by the Industrial Court. 0 • • /2 2 CRIPETA, J. upheld that submission on the .gro,und that the reliefs claimed in the suit were the same as those claimed iJl the Award of the 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, res judicata. The only way tbe matter can come before this court is, if at all 1 by way of appeal. The appellants were aggrieved by that ruling and have preferred this appeal. Mr. Kashumbugu 1 learned advocate, appeared for the appellants while Mr. Kapinga, learned counsel, reprea0nted the r~spondent. Three grounds of appeal were e.dTanr✓ ed: the :reliefs clai..rned in the suit were not the. .same as those in the award of the Industrial Court; the learned judge -erred in upholding the preliminary objection; and that the matter was not Tea? judicata. Mr. Kashumbugu argued them together. Mr. Kashumbugu submitted that the retrenchment should not have taken place before the voluntary agreement was registered with the Industrial Court. He went further to say tha.t after the retrenchment the appall.ants had no option but to file the suit in the High Co,~rt because at that. time there was no Award of the Industrial Court. He pointed out that the suit was filed on 13 Mayi 1997, while the agreement was registered on 10 October, 1997, that is, an interval of nearly !ive months. The learned advocate contended that there was then no Award of the Industrial Court and, therefore, the suit could not have bepn res judicata. • •• /3 3 Mr. Kapi.'lgat on the other hand, argued that the binding effect of the agreement is acknowlede;ed and that it has not been challenged,. • He pointed out that clause 12 of the agreement provides that all disputes have to be referred to the Industricl Court. So, he argued, the appellants ought to have gone to the Industrial Court. Mr. Kapinga ci,ted. t)lt.i-- -decision of tilis Court in f~<?-.r,.!;,.l'LltePgo__~•--1:~_?;<£!_ia Shoe C~o..!., Civil Appeal Noo 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 same as those provided;.'. by the agreement. Further, and it would appear to be in the altern~tive, Mr. Kapinga argued that 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 pointed ou.t that ~fore the suit was concluded the agreeme.nt was registered e..s an Award of the Industrial Court and so, 1;h9 lllll,tte~ was res judicata. Mr. Kashurnbugu in reply said that the validity of the agreement is questionable in view of the provisions of section 39 (4) of the Industrial Court of Tanzania Act, 1967, as amended (hereinafter referred to as the Act)~ In the alternativet the learned advocate submitted that even if the agreement was valid wichout r e g i s t r a t i o ~ - the appellants ware not .cbli.ged to aw::ii,.egistra.tion instead of '· 2\ '-.. I J filing the suit. For clurity we think we better point out that Act No. 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 citatiQn to the Industrial Court of Tanzan:ia Act, 1967; and renamed the Tribtmal as the Court • ••• /4 4 We are of the settled opinion that this ,:i.ppec.>.l hinges on the import of section 39 (4) of the Act. Mr. Kashumbugv. cited it but did not have the proviso with him in Court• The proviso wns added by the Labour Lc"1ws (Miscellanoous Amendrll€nts) Act, 1982, Act No. 25 of 1982. Sot the C<llllpl~e sub-.section (}+) of section 39 provid~s as follows: No volu_~tary agreement shall be oper~tive or binding on the parties thereto unless it is registered by the Industrial Court: Provided that where the Industrial Court,J:" does not register a voluntary agreement with:in three months the employer and the employee may commence implement:ing the voluntary .s.greemen:t. The proviso makes it abundantly clear to i,u, that a voluntary agreement becomes operative three months after it has been submitted to the Industrial Court for registration irrespective of ·whether or not it bas be€n registered with that Court. So, the matter now depends on when the ~greement was pN.sente.d for registration ru1d therefore from what date it could be implemantedo The implementation date :in relation to tho do.to of retrenchment a.11.d the date of filing the suit in the High Court will determine the status of the af,reement. Mr. K..~inga .said i.~ the lli.gh C9Ur~ that the application for regis~t.ion wns made two or thrile days after the agreement was concluded. He was not controverted on that. Thus the arement--WClS sent for registrc,tion either on 15th or 16th Mayt 1996. So, without n.ny doubt, the pEtrtics could hnve implemented it from 17th August, 1996., In the present cnsc tho nppell,:'mts were retrenched on 30th June, 1996, that is before the parties cov.ld hnve implemented the ••• /5 • 5 • agreement according to the proviso to section 39 (4) of the Acto The• suit, too, was filed before the implemenb.tion dny, that is, on 13 May; 1996. Hence the appellonts could not h::1.ve used the agreement nnd the on1Jr course o.f act.ion they had wM filing a suit in the High Court. We think thn.t we better point out two things: .One, the Ck'l.te of filing the plaint is shown in the record of appeal to be 13 May, 1996 but the date of verification of the pluint is indicated as 24th December, 1996. Obvioill';ly there is ,..n error, Since the wTittcn statement of· ,, defence w.c:s verified and filed on ,rd December, 1996,' then 24th December, ) is definitely a mistake. Two 1 the learned trio.l judge cited in his rul:ing the date of filing the plaint ns 19th !fay, 1996. This, too, was an oversight. The original file is clear th,s.t the plaint w1.1.s filed on 13th May, 1996. In any case whether the d:"'l.te of filing was 13th or 19th May, 1996, both dates were well before the date of :implementing the agreewmt~ i:.b.a.t is, 17th August, 1996. The suit in the High C()urt. was, therefore~ not !',~S iudi£E.J.a• And so, the appeal is allowed a.."ld tho :5uit is sent back to the High. Court to be heard on merits before- nnother judge. DATED a.t DAR J<;.S SALAAM ~a 9th d..-,.1 o.t } u.gu.st, 2001,, r~=-=------- AoS.LoRAMADHANI JUSTICE JUSTICE = OF OF- -APPEAL APPEAL D oZ .Ll,'BUVA ~--· ---~ K.S oK.LUGAKINGIRA JUST,W)i Ot &PEfJ! that this is n vue copy of the original.