stephano bhoke mathube vs barrick north mara gold mine 2023 tzhc 21596 5 october 2023

IN THE HIGH COURT OF TANZANIA

MUSOMA DISTRICT REGISTRY

AT MUSOMA CIVIL CASE NO. 18 OF 2023 STEPHANO BHOKE MATHUBE......................................................... PLAINTIFF

VERSUS BARRICK NORTH MARA GOLD MINE......................... DEFENDANT

RULING 1<T September & Off* October, 2023 M, L KO MBA, J; This is a ruling on a Preliminary Objection (PO) raised by the counsel for the defendant while filing Written Statement of Defence (WSD) that; 7. To the extent of plaintiff's ciaim or cause of action is hopelessly time barred. The defendant will move the Honourable Court to dismiss the suit with costs.

2. In alternative, but without prejudice to the above Preliminary Objection to the extent that the plaintiff's claim or cause of action is the alleged tortious liability of the defendant and to the extent that the cause of action is based on employer - employee relationship, this honorable court lacks the requisite jurisdiction to entertain the suit in terms of section 88 (1) (b) (ii) of the Employment and Labour Relations Act, [Cap 366 R. E. 2019] and Page 1 of 15 section 51 of the Labour Institutions Act, [Cap 300 R.E 2019]. The defendant will move the court to strike the suit with costs. As custom, Preliminary Objection has to be determined first. See Deonesia Onesmo Muyoga & 4 Others vs Emmanuel Jumanne Luhahula, Civil Appeal No. 219 of 2020 CAT at Tabora. During determination of the same plaintiff was represented by Mr. Baraka Afred Dishon while defendant was represented by Mr. Faustine Malongo, both learned advocates. Mr. Malongo was the first to address this court over his filed PO. After he has abandoned the 3rd, 4th and 5th points he submitted that the matter is time barred. He elaborated that as the plaintiff is claiming Tsh. 150,000,000/= as a compensation of tortious liability over injury sustained in cause of employment and at paragraph 7 the said injury is claimed to occur in year 2017. According to Mr. Malongo tort was committed in year 2017 and three years

expired in the year 2020. Basing on Item 6 part I of the schedule to the Law of Limitation Act, Cap 89 he said time limitation is three years and the remedy available on the same legislation under section 3 is dismissal. He said so far as the suit before this court was filed in 2023 it deserves to be dismissed. To boost his position, he supplied the case of Page 2 of 15 Obetho Werema Joseph vs CATA Mining Ltd. Land Case No. 20 of 2020. On the second limb Mr. Malongo submitted that the matter is tortious liability based on employment relationship as witnessed in paragraphs 4, 5 and 6 of plaint, explained that plaintiff had an employment contract with defendant as front loader operator and while in due course of that duty he sustained injury 'operational law back pain syndrome'. According to Mr. Malongo, plaintiff was supposed to file his claim to Commission for Mediation and Arbitration (CMA) or Labour Court but not normal suit. Mr. Malongo took refuge to Bulyanhulu Gold Mines vs. Mwalami Mohamed Mmbaya Civil Appeal No. 11 of 2021 which had analysed section 51 of the Labour Institution act, Cap 300 and section 88 (1) (b) (ii) of the Employment and Labour Relations Act, Cap 366 that disputes arising from tortious liability on employment is compulsory to arbitration. He said, so far as the plaintiff sustain injury in cause of employment and so far as there is employee and employer

relationship then, it was his argument that the matter was supposed to be filed to CMA or Labour Court and prayed the same to be struck out. Page 3 of15 Resisting the preliminary points of objecting, Mr. Baraka submitted that the suit was filed on time as the cause of action arose on 14/08/2020 when the defendant failed to perform his statutory duty of paying plaintiff as per evaluation conducted as revealed in paragraph 23 of the plaint. For him cause of action arose August 2020 and the suit is filed within time. Mr. Baraka had no reservation on item 6 of the first schedule as submitted by the counsel for the defendant but he said the issue is when cause of action arose. Mr. Baraka insisted that employer contravene section 30 of the Workers Compensation Act, Cap 263 R.E. 2019 for his negligence by breaching statutory duty and omission of his duty. He further distinguished the case of Obetho Werema Joseph vs CATA Mining Ltd (supra) claiming that the case is supporting the plaint as the trial judge in the referred case found the cause of action arose in 2016 as the court based on last report which was annexed to the plaint. He submitted that in the case at hand the cause of action was elaborated in paragraph 23 and the suit is within time. On the second limb it was his submission that this court has jurisdiction to entertain the matter as provided under section 13 of the CPC and

Article 108 of the Constitution of the United Republic of Tanzania and boost his Page 4 of 15 argument by Emmanuel Massanja Gaganga vs Managing Director Out Door Tanzania, Civil Appeal No. 162 of 2018 High Court Dar es salaam where at page 15 it was said this court cannot have jurisdiction to entertain the matter except by utilization of section 30 (1) of Cap 263 and Constitution of United Republic of Tanzania and submitted further that the same position was maintained in Moku Security vs Juma Sabeya Juma, Civil Appeal No. 48 of 2020 and he prayed the PO to be overruled. On a different note, he submitted that it might be true that the matter was to be filed in High Court Labour Division but since there is no miscarriage of justice, he prayed this court to determine the suit on merit. He did not end there he challenged the prayer by the counsel for the defendant that the remedy here is not struck out as prayed as it attract re-filing, he said this court can direct anything as deem fit on jurisdiction. Insisting over miscarriage of justice, he cited the case of Benitho Thadei Changula vs Abdulahi Mohamed Ismail where section 13 of the CPC was quoted and analysed that there was no miscarriage of justice. Further, in the case of Bulyanhulu Gold Mines vs Mwalami Mohamed Mmbaya (supra) as cited by the counsel for defendant he submitted that the case analyse Page 5 of 15 section 51 of

Cap 300, it went further and cited Articles of Constitution and Labour Courts and prayed this court to concentrate on powers conferred to it by the Constitution and find it has mandate. During rejoinder Mr. Malongo insisted that the suit is based on injury as per paragraph 3 and not the letter, he said the plaint does not have allegation of negligence and breach of statutory duties. He argues this court to determine basing in what was pleaded. Explaining further on Obetho Werema Joseph vs CATA Mining Ltd (supra) he said in that case plaintiff submitted a report which was relied by the court but in the case at hand there is no report neither statement to rely upon. He differentiates general jurisdiction of the High Court under section 13 of the CPC and the jurisdiction conferred to Labour Courts under section 51 of Cap 300 otherwise there could be no need of having High Court Registries. Counsel distinguishes the case of Moku Security vs Juma Sakeya Juma (supra) as it was not decided that Labour dispute can be filed in normal court. He was of the position that if the matter will be heard in this court there will be miscarriage of justice and breach of law as procedures of hearing matters in CMA or Labour Courts are different and they are lenient. That makes the end of submission by parties. Page 6 of 15 Am called to decide whether the PO has merit after the learned minds

have scrutiny the matter. I will start with the second limb of objection which is about jurisdiction. I find this is important matter to be determined first before other issues. Whether the matter is properly before this court. Counsel for the defendant adduced that the case is tortious liability based on employer and employee relationship as the plaintiff sustained injury in cause of his employment. Under section 88 (1) (ii) of Cap 366 the matter was supposed to be failed to CMA or Labour Court and thus should be struck out as an alternative to the first limb. In analysing the defendant's contention under this point I find it pertinent to rephrase the relevant part of the said section 88 of Cap 366. The section reads; '88.-(1) For the purposes of this section, a dispute means - (a) a dispute of interest if the parties to the dispute are engaged in an essential service; (b) a complaint over- (i) the fairness or lawfulness of an employee's termination of employment; Page 7 of 15 (ii) any other contravention of this Act or any other labour law or breach of contract or any employment or labour matter falling under common law, tortious liability and vicarious liability; (Hi) any dispute referred to arbitration by the Labour Court under section 94(3)(a)(H).' [Emphasis is mine]. From the above excerpt, it is evidently that even the tortious complains arises out of employment

relationship fall under the jurisdiction of Labour Institutions which are vested with power to determine labour disputes. Looking at the plaintiff's plaint, the plaintiff complains of tortious liability resulted from accident which cause him operational law back pain syndrome. It is my opinion that, the plaintiff complaints are based on tortious liability just as indicated in plaint. Mr. Baraka claim that under Constitution and Section 13 of CPC this court has jurisdiction. This assertion was objected by Mr. Malongo that if that was the case then there could be no need of having High Court registries. Am in agreement with the counsel for the plaintiff that section 13 of the CPC provide general jurisdiction to this court. The section reads; Page 8 of 15 '13. Every suit shall be instituted in the court of the lowest grade competent to try it and, for the purposes of this section, a court of a resident magistrate and a district court shall be deemed to be courts of the same grade: Provided that, the provisions of this section shall not be construed to oust the genera!Jurisdiction of the High Court.' As it reads, this court have general jurisdiction as the same provided under Constitution of United Republic of Tanzania. The question now is what was the intention of the Legislature and what are the purpose of High Court Registries Rules issued by Chief Justice periodically. Both

counsels concede on the content of the said section. What they differ is on interpretation. In this court interpretation, section 13 of the CPC is interpreted by Chief Justice by designating High Court Registries whenever he deems so in order to simplify dispensation of justice in the country. Basing on section 13 of the CPC as cited by Mr. Baraka, there are various registries established to handle different matters including High Court Labour Division to handle labour matters. The latter was the concern of Mr. Malongo. Page 9 of 15 Mr. Baraka in arguing for this court's jurisdiction cited section 30 (1) of the [Cap 263 R.E 2015] does not limit civil liability of the employer in any way. For easy of reference I reproduce the section hereunder; '30-(i) Nothing in this Act shall limit or in any way affect any civil liability of an employer or any other person in respect of an occupational injury or disease resulting in the disablement or death of an employee if the injury or disease was caused by negligence, breach of statutory duty or any other wrongful act or omission of the employer, or any person for whose act or omission the employer is responsible, or of any other person.' There is condition to the cited section that the injury or disease must be a result of action or omission or negligence on the side of employer. There is no doubt that plaintiff sustain injury in the

cause of employment. It is in paragraph 24 where plaintiff complained of negligent of his employer that defendant negligently and intently denied the plaintiff right to be paid the damages for injury. If at all there was negligent, then it was on payment but not in cause of the disease neither injury as suffered by the plaintiff. I find the section is not applicable in the circumstances of this case and therefore the case of Moku Security Vs. Juma Sakeya Juma (supra) is distinguishable. Page 10 of 15 Article 108 of the Constitution of United Republic of Tanzania was also cited by the counsel for the plaintiff. For easy of reference, the article is reproduced as follow; '1O8.-(1) There shall be a High Court of the United Republic (to be referred to in short as "the High Court") the jurisdiction of which shall be as specified in this Constitution or in any other law. (2) Where this Constitution or any other law does not expressly provide that any specified matter shall first be heard by a court specified for that purpose, then the High Court shall have jurisdiction to hear every matter of such type. Similarly, the High Court shall have jurisdiction to deal with any matter which, according to legal traditions obtaining in Tanzania, is ordinarily dealt with by a High Court provided that: the provisions of this sub-article shall apply without prejudice to the jurisdiction of the

Court of Appeal of Tanzania as provided for in this Constitution or in any other law! Emphasis is mine. The cited Article refers other law which shall vest jurisdiction to High Court. Legislature in the year 2004 make in place the Labour Institution Act, Cap 300 R. E. 2019 which under section 51 vests exclusive jurisdiction to labour court; '51. Subject to the Constitution and the labour laws and over employment matter falling under common law, tortious liability, Page 11 of 15 vicarious liability or breach of contract within the pecuniary jurisdiction of the High Court, the Labour Court has exclusive civil jurisdiction over any matter reserved for its decision by the labour laws. 'Emphasis is mine. According to paragraphs 4, 5 and 7 of the plaint, plaintiff has employment contract with the defendant then there is employee and employer relationship and therefore the matter was supposed to be referred for arbitration or to High Court labour division just as decided in the case of Bulyanhulu Gold Mines vs Mwalami Mohamed Mmbaya (supra) while quoting National Micro Finance Bank PLC vs Sara Richard Hamza, Civil Appeal No. 1 of 2020 (unreported) that; '...the Labour court and commission for mediation and arbitration under section 88 and 94 of ELRA as well as section 51 of the Labour Institution Act, have exclusive jurisdiction to entertain and determine the matter provided under the

Employment and Labour relations Act including all matters of tortious nature arising out of the employment relationship, between the parties.' I agree that CPC has conferred this court jurisdiction but there are registries established for that purpose. If not adhered, then there could be no reason of having different high court registries. I therefore find the Page 12 of 15 second limb which was in alternative has merit and sustained. This court has no jurisdiction to entertain the matter. Turning to the first limb is whether the suit was filed on time. As per Mr. Malongo the cause of action arose in 2017 and basing on Cap 89 it was supposed to be filed within three years. So far as it was file in 2023, then, it is time barred. Mr. Baraka for the plaintiff submitted that cause of action arose in August, 2020 and suit is filed on time. He elaborated that employer failed to honor his promise that's why the cause of action accrued in 2020 as elaborated in plaint. This being a civil suit where a plaintiff is claiming for compensation, the plaint must explain cause of action. I had a time to read plaint and find the following; '3. That the plaintiff claims from the defendant the amount tune 150,000,000/= ONE HUNDRED MILION TANZANIAN SHILINGS being the payment for the compensation on tortious liability for the injury sustained in cause of employment caused the plaintiff permanent disablement.

7. That in 2017 while operating machines and hauling equipment on employment duties and responsibilities, plaintiff sustained injury which establishes medical examination to have sustained Page 13 of 15 Neurofamina disease with bilateral Neurofauma which caused the operational law back pain syndrome due to the loss ofspinal lordosis.

23. That on 14/08/2020 the plaintiff received a tetter from the defendant purporting the commitment of the benefits accrued from the group insurance and workers compensation fund to be made on 100% for the incapacity and disablement caused after the evaluation of the health and valuation of the payment after medical assessment on medical report. WHEREFORE the plaintiff prays for judgment and decree against defendant as follows; - i. Payment of Tsh. 150,000,000/= being the toss suffered from the injury sustained in the cause of permanent disability and tortious liability resulted from the accident. ii. ...' From the passage above, it is vivid that plaintiff's claims are based on injury sustained in 2017 as was summarized on verification of the plaint, and therefore, the compensation is claimed against tortious liability over injury. That being the position of this court, then cause of action arose in the year 2017. The law which provides for limitation of actions is Cap 89 as cited previous specifically under Item 6 part I of the schedule. Time limitation for actions under tort is three years. Just as submitted by counsel Page 14 of 15 for the defendant the suit ought to be filed not more than year 2020 as in allegation plaintiff did not indicate specific date of occurrence. I failed to agree with Mr. Baraka as the plaintiff is not suing defendant for her failure to pay 100% of

his promise as the same was not featured in verification clause. Just as was in the case of Obetho Werema Joseph vs CATA Mining Ltd (supra) as the cause of action in that case as was elaborated in paragraph 3 of the plaint was registered to be when the defendant unlawful acquired plaintiff's land. In the current suit, cause of action arose when the plaintiff sustained injury, that is 2017. For that reason, I sustain the first limb of the objection. The two points objection has different merit, the first is about time limitation and second on jurisdiction. I will maintain objection about jurisdiction that this court has no jurisdiction so far as the injury was sustained when the plaintiff was performing his employment duties. For thar reason, I struck out the suit with costs. DATED 05lh day of October, 2023. M. L. KOMBA Judge Page 15 of 15