20171208 TZHC Dar es Salaam

.., Ct)i . ------- ---- IN THE HIGH COURT OF TANZANIA '-~ (DAR ES SALAAM DISTRICT REGISTRY) O t ~f 7 f AT DAR ES SALAAM CIVIL APPEAL NO. 154 OF 2016 Appeal against the Judgment and Decree of the Court of the Resident Magistrates; of Dar es Salaam} ·· { sitting at Kisutu-Hon. H.S Riwa SRM dated 3(/h June,2016 in Employment Cause No. 29 of 2009 TANZANIA TELECOMMUNICATION COMPANY LIMITED .....................................................APPE.LLANT VERSUS TITUS GUNZE ..... .........•............................................ RESPONDENT 17/10&08/12/2017 JUDGMENT MWANDAMBO, J:- This appeal arises from Employment Cause No. 529 of 2006 adjudicated before the Resident Magistrate's Court of Dar es Salaam at , Kisutu in favour of the Respondent. The said decision aggrieved both the Plaintiff (Respondent) and the Defendant (Appellant) and hence institution of two appeals before this Court noyv C:onsolidated as Civil Appeal No. 52 of 2016. The Respondent's appeal No. 169 of 2016 filed late in point of time . . ~ · was for that reason taken as a cross appeal. The record of this appeal presents a chequered history. It all started with a summary di~m11~~tJ"'1~f the Respondent from the employment of the . -~· ''· . Appellant way back 1994 followed by an order of the Minister for Labour made on 31 March 1995 under section 26(2) of the Security of 1 ➔-~·-·-- ---~-- ·=· -~.--:--~~;;~:-· -- ~~::=-~---·~.'~':=- --, -· ~-•. -~-............ : ·7~:-;.~,~:'.::=~--~-- ~·----~--·,~------~----~---·--··-· ~;:::::-~ -'::::· •·4 -- =·=·=···-E:.:-~- =·-~- =-==·-·=•·--:..::::--':.:::'-'-',-,-=:::,·:_ ____:_ ____ ___:__---__,,_ - -.. -- -· ·----"- ........ ---------., -- --- ~ ~.: --- .-. ·_ ~{;~;::•"· _· : ~:~- ·--~~ --~.:·.~- -·· . -- _:.:..:...__ ··-··-. -~::'>~-:-- .. -- . ... -..,,. . . ...... ---- - - - - . ' ,, ' Employment Act, 1964 confirming a decision of Dar es Salaam Conciliation Board (DCB) which had ordered the reinstatement of the Respondent into employment with the appellant. The record shows also that the Appellant's attempt to challenge the Minister's order in this Court ended in vain which resulted into the Respondent seeking enforcement of the said decision before the lower:- Court. The Respondent applied to enforce the decision for · monetary reliefs comprised of subsistence allowance, repatriation costs after the Appellant's refusal to reinstate the Respondent but instead terminated him and paid a sum of Tshs 3,713,667/= which the Appellant ,.. has argued all along .as terminal benefits. Following various turns of tenants, the_ lower Court issued a garnishee order against the Appellant's bank account for payment of a sum of Tshs 219,395,504/78 said to have been due to the Respondent from the decision of the Minister. Subsequently, that order was successfully challenged in Civil Revision No. 132 of 2004 in which this Court (Mihayo,J as he then was) set aside the said order and direct the lower Court to hear the Appellant regarding the amount of money payable to the Respondent upon filing a claim in Court for adjudication through a Labour Officer. The learned judge arrived at that decision upon being satisfied that the amount the subject of the garnishee order did not emanate from the decision of the Minister. Subsequently, a Labour Officer filed an employment cause before the Resident Magistrate;s Court under Section 141 of the Employment Act Cap. 366 [R.E.2002] seeking determination of the amount claimed to be due and payable ~o the Respondent. It is worth noting that pursuant to section 28 (1) of the Security Employment Act, a 2 -- . - ---· •"'"-:.--::t""'.- .. . --·-' --------~- - • --· --·· --...,----•------------ ·-·-- - . ·- · .,.-,,..,.-....,,,,•...;.., . .,.~.,.~.u.,,;:;,.,v·,,.,,_ '-•·· ,.-.• -,.., _.,.-..,._ ... ••. .._ ,.~-•• ---,-....--,~·•· .. -... .· ~- •. _ • .., r decision of the Minister on a reference to -him or that of a District Conciliation Board was final and conclusive and binding on the parties thereto and enforceable in Court of competent jurisdiction as if it were a decree~ That means the Respondent was free to seek enforcement of that decision before the lower Court and this appears to have been the case in Employment Cause No. 221 of 1997 giving rise to a garnishee order which was quashed by this Court in Civil Revision No. 132 of 2004. As the record will bear testimony, the. Labour Officer made a report to the lower Court under section 141 of Cap 366. That section presupposes a complaint being made by an employee under section 139 and the Labour Officer is unable to resolve a dispute as envisaged by section 139 of Cap 366. In terms of section 143 (2) a Magistrate before whom a report is made is empowered to try the issue disclosed in the report as if the proceedings before him were a Civil suit without requiring the parties to file any pleadings other than the report. The parties to this appeal filed pleadings from which the trial Court drew issues for its determination and ultimately the impugned judgment. As indicated besides not being required to file any pleading, the Appellant filed one containing three preliminary objections. The statement of defence disputed the Respondent's basis ·of claiming repatriation to his place of domicile and so the liability to pay subsistence allowance itemized .in th~ computation to the Labour Officer's report. Based on the said report . and the-Appellants' statement of defence, the trial Court framed four issues namely; 1) Whether the complainant/ Plaintiff was reinstated by the conciliation Board and/or the Minister for Labour matters. 2) Whether the Plaintiff/complainant is entitled to repatriation costs. 3) Whether the complainant/Plaintiff is entitled to subsistence allowance and if so to what extent. 4) To what reliefs are the parties entitled. At the end of the trial, the lower Court determined issued number two and three in the Respondent's favour but made no determination of the amount payable on account of repatriation costs and subsistence allowances payable to the Respondent. As to the first issue, the trial Court declined to make any determination whether the Respondent was reinstated by the conciliation Board or the Minister for Labour because a decision on that issue was premised on a law which was already repealed which the learned trial Magistrate found unprepared to resurrect it to life to use her own words. Furthermore, the learned trial Resident Magistrate found her hands tied by decisions of her successors including Honourable Judges of this Court who had already made a determination on it earlier. In effect, the learned trial Resident Magistrate determined the first issue affirmatively. A decree extracted from the trial Court's judgment runs in part thus. "... Suit [sic!] is hereby·entered in favour of'the Plaintiff as follows:- i. The Plaintiff be repatriated to his permanent home. 4 ( ii. The Plaintiff be paid the subsistence allowances from the date of judgment to the date of full payment iii. The Plaintiff is entitled to the payment of 9% at the Court's rate from the date ofjudgment to the date of payment in full. . ' iv. Costs of this suit to be borne by the Defendant Sgd As shown, both parties are unhappy with the judgment and hence the appeals. The Appellant's appeal is premised on the following grounds namely:- 1. That the Trial Magistrate erred in law in holding that the trial Court has no powers to decide on the jurisdiction of the Trial Court to adjudicate the matter 2. The Trial Magistrate erred in law in failing td hold that since the law does not recognize "Baraza la Usuluhishi Dar es Salaam" there was no any known legal decision capaple . . of been enforced by the Trial Court 3. That the Trial Magistrate erred in law in her holding that the repealed labour laws are in applicable in the matter at hand. 5 - --- . ~ - ---- - ---- ----· ,_ . 4. The Trial Magistrate erred in law and fact in failing to hold that since the evidence establishes beyond all probabilities that the Respondent was recruited herein Dar es Salaam the Applicant's duty is to repatriate the Respondent to his place of recruitment which is Dar es Salaam and not otherwise. 5. The Trial Magistrate erred in law and fact in Holding that the Respondent is entitled to payment of subsistence allowance in absence of any evidence that the Appellant delayed in pay the Respondent his terminal benefits/repatriation expenses. 6. · The Trial Magistrate erred in law and fact in failing to hold that payment of Tshs. 3/713/667/= to the Respondent constituted payment of all his terminal benefits in terms of S. 42 (5) of the Security of Employment Act Cap 387 RE 2002. 7. In the alternative to grounds (5) & (6) herein that the Trial Magistrate erred in not holding that even if the Respondent is entitled to payment of substance allowance, nothing in law requires the Appellant to pay him the amount which is over and above his salary scale as applicable at the material time. 8. The Judgment of the Trial Magistrate has abrogated the law and is made in contravention of the established legal principles requiring a party to prove his case on the required standards and or that specific claims require to be specifically proved. In the instant case the Respondent has not proved his claims on the required standards. 6 ( 9. The Judgment of the Trial Magistrate has erred in law in ordering the Appeal to be filed within 30 days contrary to law 10. The Judgment of the Trial Court is not a Judgment at all on the eyes of law. Amongst the reliefs sought by_ the Appellant is for hearing of the case denovo in the event I quash the trial Court's decision. For his part the Respondent has preferred the following grounds: 1. That the trial Court Magistrate erred in law and facts when she decided the matter in execution in favour of the Appellant without specifically mentioning how the Appellant is entitled. 2. That the trial Court erred in law when it extracted a decree which is at variance with the judgment. From the above grounds the Respondent asks the Court to make an order directing the Trial Magistrate to provide specific reliefs and extract a decree in conformity with the judgment. Hearing. of this appeal was conducted by way of written submissions through Messrs Elisa Abel Msuya and Godwin Muganyizi learned Advocates for the Appellant and Respondent respectively. Whilst I cannot promise to . take on board each and every argument. put forward in _the learned Advocates' respective submission, I will endeavor to take into account the substance of such submissions in my judgment. I will now turn my attention to a discussion on the Appellant's grounds of appeal. 7 .. ·· .--•-· • •.•·----··. ,. • .•.••• : · : . - - · . , . - , _ . .-. _.,..,.:...;..,.....·. ,..•, .c - - .- .- - - - , , - . --=-_.~ .. --,-.-,,.. --·-- -·- ·- . . ·---·· -·-- . -- ----- .- -.. ,,::.-.-:: :- -. . ' ··- . - -·· . . . _-.;:;:~-.:.~·:: . - . .·__ ;.~- . '_-_ -.::. -.--. _: - ' ••• ~ •.•;::..:.•• ~-•--W•••-• --•• ~--•<, ~ .... .,..._ _ _ _ _ _ _ ,_ The learned Advocate for the Appellant argued grounds 1, 2, and 3 conjunctively. The Appellant's complaint in the tree grounds is to the effect that the trial Court made an error in failing to determine that it had no jurisdiction to adjudicate the matter, error in not deciding that the law does not recognize the so called Baraza la Usuluhishi Dar es Salaam and thus there was no Valid decision capable of being enforced by the trial Court and the trial Court's finding that the repealed labour laws were inapplicable. Mr. Msuya criticized the trial Court for arriving at the deci~ions it did without regard to the evidence and the law. In particular, the learned Advocate submitted that there was no decision capable of being enforced by the trial Court emanating from Dar es Salaam Conciliation Board which was an unknown creature under the Security of Employment Act. Cap. 387 [R.E. 2002] repealed by section 103 of the Employment and Labour Relations Act No. 6 of 2004. The learned Advocate submitted that despite the repeal, all matters which were pending on 5 February, 2007 the date on which Act No. 6 of 2004 came into force were revived by section 42 of the written Laws (Miscellaneous Ame,ndments) Act, No. 11 of 2010. It was the learned Advocate's further submission that since no Court had determined the validity of the so called Baraza la Usuluhishi Dar es Salaam, it was wrong for the trial Court to hold as it did that it was functus officio. The submissions by the learned Advocate for the Respondent were very brief. The learned Advocate argued that bring,ing the legality of the decision of the conciliation board was aimed at going behind the ruling of this Court (Mihayo, J) in Civil Revision No. 52 of 2004. According to the 8 ,. learned Advocate, reopening the matter was meant to bring an appeal through the back door against the findings of the conciliation Board. Having examined the submissions in the light of the trial Court's judgment, there is one aspect which has exercised my mind quite considerably. That issue relates to the jurisdiction of the Resident Magistrate's court in the light of the order of this Court in Civil Revision No~ 132 of 2004. On 3 October 2017 I invited the learned Advocates for the parties to file supplementary submissions addressing me specifically on that point because the issue had a bearing o~ the appeal. I am grateful to the learned Advocates for their inputs on the issue. Not surprisingly, the learned Advocates expressed opposing views on the issue each maintaining his stance. Essentially, Mr. Msuya, learned advocate for the Appellant maintained that the lower Court lacked jurisdiction citing Mussa M.Z Massatu V. Director Diesel Electric Service Ltd, Civil Appeal No. 132 of 2004 (unreported) as his authority. For his part, Mr. Godwin· Muganyizi learned Advocate for the Respondent took the view that the what was before the lower court was an execution of the Minister's decision rather than a complaint . made by a Labour Officer referred to the District court and so the provisions of sections 141 and 142 of the Employment Act were inap-plicable to the proceedings before the lower court. The burden of that argument lies not in the interpretation of the two sections ;bl}t in the learned Advocate's failure to appreciate the import of this Court's order in Civil Revision No. 132 of 2004. Clearly, execution of the Minister's decision is enforceable in the lower court as a decree of the court without recourse to a Labour Officer. The position in this matter in the light of this court's 9 ruling is that the issue was beyond execution. It is for this reason I think one has to look at the issue broadly to see whether the Resident Magistrate was indeed seized with jurisdiction and deal with the matter in the manner it did to which discussion I now turn. The record in this appeal is clear that Employment Cause No. 29 of 2006 whose decision has given- rise to this appeal was lodged by the Labour Officer following this Court's decision in Civil Revision No. 132 of 2004. It is common ground that at some point in the proceedings before the Appellant took out a preliminary objection challenging the jurisqiction of the Resident Magistrate's Court to entertain a matter preferred before it under section· 141 of the Employment Act and the Court sustained that. point through a ruling delivered on 28 July, 2009. That ruling became a subject of Civil Revision No. 52 of 2009 determined by my brother Mr. Justice Utamwa quashing that decision on the ground that the trial Court was functus officio on that matter. My learned brother directed the matter (Employment Cause No. 29 of 2006) to proceed for hearing before another Magistrate of competent jurisdiction as if the impugned ruling and order made on 28 July, 2006 had not existed. ~n effect what remained on record is the ruling by Safari, RM made on 10 July, 2006 overruling the Appellant's preliminary objection on the question of jurisdiction of the lower Court. The learned Resident Magistrate -took the view that since Employmerit~Cause No. 29 of 2006 was a result of the order of this Court in Civil Revision No. 132 of 2004, it was not open for anybody to challenge the jurisdiction of the Court as it were. 10 As shown, a subsequent· ruling by another Magistrate circumventing that ruling was quashed by this Court in Civil Revision No. 52 of 2009. But the issue which comes to my mind is whether the order of this Court in Civil Revision No. 132 of 2004 directing the manner and the Court before which the Respondent was to file his claim through a Labour Officer for adjudication. was complied with. It is. common. ground that the Labour Officer found it convenient to invoke section 141 of the Employment Act as the only avenue through which he could approach the Court. In terms of section ?42 of the Employment Act a report ~Ya Labour Officer could I} only be sent to a District Magistrate sitting in a District and not a Resident Magistrate Court. That is the position_ taken by this Court in Mussa M.Z Massatu V. Director Diesel Electric Service Ltd, Civil Appeal No. 13:t { J of 2004 (unreported). Having so stated, my brother, Mandia,J (as he then was) found that the lower Court lacked jurisdiction to determine an employment complaint initiated by way of report by a Labour Officer under section 132 (now section 141) of the Employment Act as it stood before the enactment and coming into force of the Employment and Labour ~. Relations Act, 2004. The only difference between the instant matter and Civil Appeal Ncf, 134 of 2004 is that the Labou_r Officer's·· report in Employment Cause No. 29 of 2006 was filed pursuant to a Court order but . .. ii, ,, in .. my view the ~ffect is the sam~. In my view, the fact that this Court • ~ • • • directed the filing of a -claim through a Labour Officer for adjudication did not mean that the dictates of the relevant law should be jettisoned to the wind. Indeed, apart from directing that the Respondent files his claim in Court through a Labour Officer for adjudication there is ·nothing in that 11 - . .. ····-· . . • -·•· .. .. --·--- . ··-1'.:"'--r:--- ... . --·-···- .. _:,:_--. .:,.....:.:.- •.. .:..'.,..• ·. . . . .. - . ,.::;, ····- .,_: ... - ... - ... --- - . .:J :-;~·_:· "-c • - -___.:_._.:.- • _: ~- • • . ·:_ •.•• ·- - ~ ~ - - : - . ·• • - - - - - :·-x:-:::-·_-- . :·~-~".'"_·::-..- ... ~-\~~- '. - A----=~ -•• ----·---••~~-:-- -•-----_-~,--,---------•-• --~--- -~~- 0 ruling suggesting that the claim should be filed in the Resident Magistrate's Court from which Civil Revision No. 132 of 2004 emanated. In other words, unlike the learned Resident Magistrate, I am unable to agree with him that the Court's order conferred him with jurisdiction to entertain an employment cause initiated by the Labour Officer by way of a report under section 141 of the Employment Act. If that was his understanding he must have had an erroneous understanding of the law for a Court's jurisdiction is a matter of a specific statute. No Court whatever level it might be can claim to confer jurisdiction to another Court and the fact that the Resident Magistrate's Court entertained a Labour Officer's report addressed to it rather than the District Court to which the law required the Labour Officer to send his report did not confer the Resident Magistrate 's Court with Jurisdiction which it did not have. It is trite law that parties cannot confer jurisdiction to the Court: see Shyam Thanki & Others v. New Palace Hotel Ltd (1972) HCD n 20. In effect, in so far as the Resident Magistrate's Court entertained a report which ought to have been sent to a District Court as required by section 142 of the Employment Act, the said Court converted a • S:.i nullity into validity which it was not legally empowered to do on the authority of Anwar Z. Mohamed V. Said Selemani Masuka Civil Reference No. 18 of 1997 (unreported). It follows thus that the proceedings before the Resident Magistrate's court were a nullity for lack of jurisdiction with the net effect that the judgment from invalid proceedings was a nullity and incapable of being appealed against. The said proceedings and the resultant judgment and decree must be and are hereby quashed. In effect there could not have been any valid appeal from ___ -•-- ... ,,;;.;;.-= -. .: "·:;- ~ -- ' invalid proceedings, judgment and decree and so the purported appeal must follow suit. In the event and for the fo$roing reasons, the purported appeals are held to be incompetent and are hereby struck out. Since the issue giving rise to the final order was raised by the Court suo mottu, there will be no order as to costs. Order accordingly. JUDGE 08/12/2017 13