20001016 TZHC Dar es Salaam

IN THE HIGH COURT OF.TANZANIA "AT DAR-ES-SALAAM . , CIVIL CASE NO. -380 'O:F 1998 T. MAZWAZWA M.. N ~ MBARUKU M. MLAGWA I • 0 e e e O e e • 0 e e e VERSUS INSTITUE OF AUDIT EDUCATION R U L I N G MANENTO, J: The applicants had instituted a Civil suit against the respondents forrthe Court to declare that they were wrongfully declared redundan±-basing their case· on an unregi.ttered VDluntery agreement. They h d also claimed for monetary damag~s. Before the case proceeded rvrr. Kariwa learned . . cousel for;. the· resp.ondant. ~; ~~ raised a pr-e.liminary .objection in that this court ha! .no jurisdie- •..: tions to hear the case based on a non justiciable ~voluntary agreement and that it is the Industrial court of Tanzania which has such powers and rights to @ adjudicate. on labour matters based on voluntery agreements. After hearing the -submissions_;. the trial juqg~ J;;.:tru.ck out the suit as being incompetently before the court as the High Court has no jurisdiction. The applicants being agnieved by the ruling of this court filed chamber summons Under Section 5 of the Ap~ellate Jurisdiction Act No.15/1979 and Court of Appeal Rules, 43 and 46 and Section 95 of the Civil Procedure Code, 1966l The application is for the following orders:- (1) That this court be pleased to grant leave to the applicants to prefer an appeal to the Court of Appeal of Tanzania against the decision of this Court (Katiti, J.) made on 23/2/2000; and (2) Costs of the applica~ion~ This chamber summons is supported by the affidavit of Theresia Mazwazwa being one of the applicants. The counter affi- davit is deponed by one Kariwa, the counsel for the respondents. ., • 2 • Besides repeating what the trial judge said about lack of jurisdiction the applicant deponed in her affidavit that the trial judge failed to hold that the High Court had jurisdiction to entertain the suit as one of the issues was th~ validity of the decision which removed the applicants from ~ork and finally that the preliminary objection should not have been entertained since the defendant had not yet filed the written statement of Defence. _The submissions made by Mr. Magesa, learned cousel for the applicants almost repeated what have been said in the affidavit and Mr. Kariwa said that he had nothing to add in this application. Before I proceed, I would .like to;8I:'!cept that the applicants causel erred in citing rule 46 of the Tanzania Court of Appeal Rules as one of the enabling rule in this application. This rule 46 is applicable if the application for 1et·ve to appeal is before the Court of Appeal itself. However, this misquoting is not fatal for the purpose of this application as the application complies_ to the regurements provided tinder rule 43 o:f the Tanzania Court of Appeal Rules and is also served by section 95 of the Civil Procedure Code, 1966. Going back to the application, it is not disputed that the suit 5.s based on a an unregistered voluntery agreement, Und.er section 39(4) of the Industrial Court Act, No.4.1/1967 no voluntery agreement shall be operative pr to;hlndinding on the parties thereto unless it is registered by the court~ For that matter therefore, any unregistered voluntery agreement is unjusticiable. However, Trade dispute whether existing or apprehended should be reported to the labour commissioner and with the approval of the Minister~ be fowarded to the Industial Courto That is what section 6 of Act No.3/1990 stated. Hence the trial Court said that the court competent to adjudicate matters relating to trade dispute, which of course include redundancies, is the Industrial Court where where the Act provides for the procedures to follow. Under Section 7 of the Civil Procedure Code, 1966 the Civil Courts 2ha.Y& jurisdiction to try all civil suits of a civil nature excepting suits of which their cognizance is either express by or impliedly barred. This means that if directly or by necessary ·· .,.,....7.ications some civil suits are barred from being tried in the Civil Courts, either by legislation or by necessary inference barred, .• ::n they should be tried in the courts or tribunals specifically created for such suits. .,., • 3 The Industrial Court is therefore one of the courts established to hear and determine suits of Civil nature regarding to disputes between employees or employee ( in the raanegement of the employers Lv.siness) and the employer. In my recent decision, in Civil case No .2.16 of 1999 Rose n.yrns & 8 others vs. Price Water House Coopers Consultants Ltd. (unreported) I held, inter alia said that: 11 Where there is a court specifically created to cater for particular type of cases, such as trade disputes between employers and employees, the ordinary Civil Courts should desist from entertaing such suits unless there are exceptional circumstances so to do". The applicants did not show either in their affidavit or submissions such exceptional circumstances which would warrant the trial court to hold that it has jµrisdiction to hear the case nor did the learned cousel really show in his submissions the legal points to be determined by the Court ~f Appeai which the trial judge · _ ·,ed. Having saic ~-1 I dont see any reason why I should grant leave to the applicants to appeal to the 6ourt of Appeal. Thus the application is dismissed with costs. .i:-) t't\:'.;:;-_;-_:::-~~-\t A .R .. Manento Judge 16/10/2000 Court:- The ruling is read in the presence of the parties. •-..\~\_-..~-----·~:. .. , ~ \ \ · . \.... • .......... ~-:'•>r· "'----•-.. · \. (.._) A .. R.. MANENT0 J1L.GE 16/10/2000