20050531 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CASE N0.93 OF 2004 TANZANIA PLANTATION AND AGRICULTURAL WORKERS UNION on behalf of WILLIAM R. NGWIGULU & 39 OTHERS ................................................. PLAINTIFF VERSUS 1. PARASTATAL SECTOR REFORM COMMISSION ..................................................... 1sr DEFENDANT 2. THE LIQUIDATOR OF BASUTO PLANTATIONS LIMITED ..................................... 2ND DEFENDANT RULING SHANGWA, J: On 12/7/2004, the plaintiff Tanzania Plantation and Agricultural . workers Union (TPAWU) on behalf of William R. Ngwigulu and 39 others instituted Civil Case No. 93 of 2004 claiming for a sum of TShs.310,276,380/= against the defendants namely PSRC and the liquidator of Basuto plantations Ltd. On 13/8/2004, the plaintiff filed a chamber application for a temporary injunction against the defendants praying the court to . · 2 restrain them, their employees or agents from evicting William R. Ngwigulu and 39 others from the houses they have been occupying while in the employment of the Company under liquidation namely Basuto Plantations Ltd. until the finalization of the case in Court between the parties. On 11/10/2004, the defendants raised a preliminary objection that this court lacks jurisdiction to entertain the present matter pursuant to the provisions of S.19 of the Loans and Advances Realization Trust Act No.6 of 1991. On 14/2/2005, the court ordered that the preliminary objection raised by the defendants should be argued by way of written submissions. It was so argued. Whereas learned counsel for the plaintiff Mr. Mwakajinga submitted that this court has jurisdiction to entertain the plaintiff's claim because it has nothing to do with a loan, advance, overdraft or guarantee by the plaintiff to the Basuto plantations Ltd; learned 3 counsel for the defendants M/S Msk Law Partners (Advocates) and M/S Law Offices Chipeta, Bade & Associates submitted that the jurisdiction to hear the case between the parties is exclusively vested with the LART Tribunal and that as the remedy sought by the plaintiff can be obtained from that special forum, the court should not under normal circumstances entertain the plaintiff's claim. In support of their submission, the defendants' counsel relied on 5.19 (1) of the Loans & Advances Realization Trust Act, 1991 which provides as follows : " S.19 (1) The Tribunal shall have exclusive jurisdiction to hear and determine all matters arising under this Act or relating to any non - performing asset Transferred to the trust under this Act". 4 Learned counsel for the defendants relied also on three previous cases which were decided by this court. Two of those cases which I will soon mention appear to me to be nearer to the point. The first one is HC Civil Case No.88 of 2004 Tanzania Plantation and Agricultural Workers Union (TPAWU) on behalf of Abdallah Msinda Vs PSRC and another (unreported) in which Ihema, J. held that this court has no jurisdiction to entertain a similar claim saying that under S.19(1) of the Loans and Advances Realization Trust Act, 1991, the LART Tribunal has exclusive powers to entertain the same. The second one is HC Civil Case No.89 of 2004 Tanzania Plantation and Agricultural Workers Union (TPAWU) on behalf of Stanley Kimaro Vs. PSRC and another (Unreported). in which Massati, J. also held that as the matter involved falls under the Loans and Advances Realization Trust Act, 1991, the jurisdiction of this court to entertain the same is ousted by S. 19 (1) of the said Act. In his decision Massati, J. said as follows and I quote : "Although the plaintiff's claims cannot be classified as an asset of the owner, it is in my ' . 5 view, a potential Liability on the company's assets and it is a fallacy and a contradiction, to divorce it from its assets, because if the claims succeed they can only be effectually realized by attaching the company's assets". In both previous cases, the question as to whether or not this court has jurisdiction to entertain the plaintiff's claim against the defendants was exhaustively dealt with. Because of the similarity of the case which is before me and the two cases which were previously before other judges in the same Registry, I do not intend to differ with their respective holding even though Mr. Mwakajinga for the plaintiff said that under the doctrine of precedent, I am not bound by the decision of a fellow judge. However, there is need to avoid conflicting decisions on a similar matter before the same court. So far, Mr. Mwakajinga has not preferred any appeal against the holding of Ihema, J. and Massati, J. in those similar cases to the Court of Appeal of Tanzania. 6 But, whether this court has jurisdiction or not to entertain the case between the parties, there is one inescapable fact which goes to show that earlier before instituting it in court, the plaintiff and Basuto Plantations Ltd which is under liquidation went to the Industrial Court of Tanzania in 1998 to register their Voluntary Agreement and it was endorsed by the Court. This fact is pointed out in paragraph two of the reply to submissions by defendants on the preliminary objection. It is also pointed out in the same paragraph that by endorsing their agreement, the agreement became an award. Under S.11(3) of the Permanent Labour Tribunal (Amendment) Act, 1990, once an award is made by the Industrial Court of Tanzania, it becomes binding between the employer and employees. This means that it can no longer be a subject of Civil litigation in any court of law or Tribunal. Under the same provision of law, breach of any terms of an award is enforceable in the Industrial Court itself or in any other Civil Court of competent jurisdiction as if it were a decree of that court. 7 For this reason, I think that the plaintiff's suit against the defendants is incompetent and I hereby strike itout with costs. Having done that, I advise the plaintiff to go to the Industrial Court or any other civil court of competent jurisdiction to enforce their award or simply go to the offices of PSRC and the Liquidator of Basuto Plantations Ltd for the purposes of registering the employees claim of the balance sum of Shs.310,276,380/= pending its payment before or after the liquidation process has been finalized. ~ o..~ A. Shangwa JUDGE 31/5/2005 Delivered in court in the presence of Mr. Dafa for Mr. Chipeta for 1st defendant and in the absence of Mr. Mwakajinga for plaintiff this 31st day of May, 2005. •~;<;~,~~~ i,✓,. ~~ :' ~, / •.F• - - - ~ · - · • , •• ~ '\ ,?., ~~ ~ ~~ A. Shangwa ' ,, ·.' -- .-· ' ,·, ·_ . ...... ~i' JUDGE 31/5/2005