20131030 TZHC Arusha

) I ~ _ _ _ _J ________ --• - - - - - - - - - - - _ _ _ _ p _ _ _ _ - - • f3.,.~-; ,J-4fftl.:,,.Ji$.,-.,~:J.tt..,;:;.;..;Q_}t,p_$:t::soQAt-.\Ji!l-...J ...... .QM -~.,... > ~ ~ ·••'-~WIP5 ◄ • ,··~ .....'i .-~.. ':::"} -~..~-~~---~ ,- · I __ ( :' ~ _➔:h,: ,_a ?-,,_- r. w - . \.~~ -.r:,f:f,1$Af:,J_,,-:4'tJii _:wwP.~:ffeiJliSJ•~ r , . < ·4~11-~_,I··' .:yp. t4'','ar ,.r_·N~!~--~i~ • . 'f ~ • I • ·-·~:·-''IN THE HIGH COURT OF TANZANIA AT,ARUSHA . CIVIL APPEAL NO. 11 OF 2011 (C/F Misc. Civil Application No. 47 of 2010 Originating from-Empl.oyment Cause No. 27 of 2005) TRISHALLA ROLLING MILLS LIMITED ........................ APPELLANT VERSUS ALLY JOSEPH ............................................ 11••············ RESPONDENT (From Judgment of the District Court of Arusha) (DJ. Msoffe, RM) JUDGMENT MUGASHA, J. In the District Court of Arusha in Employment Cause -No. 27 of 2005,. the respondent was awarded Tshs. 96,960/= in consequence of termination from service due to injuries he sustained•at his place of work. The trial Court also ordered payment of subsistence allowance from the date he was orally terminated by his employer as well as decretal interest and costs. The Judgment was entered ex parte. Aggrieved; the appellant preferred Misc. Civil Application No. 47 of 2010 made under Order IX Rule 13(1) & (2) and section. 95 of the Civil Procedure Code, [CAP. 33 R.E, 2002] for orders to set aside the ex parte Judgment. The said application was dismissed. Further aggrieved, the appellant preferred the present appeal with two (2) grounds namely; 1 ,. ::,t:::X. . J«::c:t OW§CJCI½ _. . . . >, ..... ~-~"-·•--441._,,_ --+--A·-•-··---a,a~. -~-::·w~· _ _..,.,.,_ ::::'..'~W"l""',.5':"""!'-,"""'·-~..:~-- _)l\,!P""l!,l_£1b!l4A!!""'-._c_. __ --O"'l'"',_,_'·----- ;__,,,_ _ __ :'"",-=.-·_--_...,.-,.~~-....-, -~,_.,..,---""'--;;- ~~1~~~::.'lj,;;:~~~;;;;,,~--- -~ "7i • 1. That; the Court erred in holding without evidence, that the appellant' was served -with summons and decided to remain silent during the trial of EQ1ployment Cause N_o. 27_ of 2005. 2. That; the trial Court erred in failing to consider that the applicant was granted in the Judgment what was not pleaded, proved and or prayed by the applicant in his pleadings. The hearing df the appeal was conducted orally in which the appellant had services of Mr. Innocent Mwanga learned Counsel while the respondent appeared in person. Addressing the 1st ground of appeal, Mr. Mwanga submitted that, it is requirement of the law that one must be served with summons before the Court grants leave for ex parte hearing. He added that, in terms of Order IX Rule 6(1) (iii) of the Civil Procedure Code, [CAP. 33 R.E, 2002], where the plaintiff appears and the defendant , does not, the Court must issue summons when there is no proof of service. Furthermore; under Order IX Rule 6(1) (iv) of the Civil Procedure Code (supra), if .· circumstances show that the defendant was not served in person, the Court is directed to issue another summons to the defendant. It was Mr. Mwanga's submission that the appellant was not served and that there is no proof that she was served butneglected to . comply with the Court order. He argued that, in the- interest of justice; the appellant ought to have been availed opportunity to be heard and not to be condemned unheard. 2 ,__ ..., .- ' ..... ,,,,. ~ •. e4,,..'.2$4Mif#1,,P!ff...it.,wCJ.,{Q-IA¢; ... - -· ' __ a=::.qb.w-► . . ~-~ In reply~ the respondent :submitted th.at, the appellant was served with '. ·--~~·.:·• r summons and that h_e made reply but he· could not enter appearance. Her non appearance prompted the trial Court. to order the suit to be heard ex parte. He added that, it is untrue that the appellant was condemned unheard. In rejoinder; Mr. Mwanga maintained that, the appellant was not served with summons and the record is silent if she refused or neglected ~o enter appearance. It is on record that, the appellant appeared in Court for the first time on 25 th January, 2006 whereas on 9th February, 2006 one Martin L. Mnkande, an administrative manager of the appellant filed Statement of Defence. On 20th October, 2006 the trial Court fixed hearing of the suit to be on 14th November, 2006 with Order for Notice of Hearing to be issued to parties. On that date that is, 14th November, 2006 the matter was not heard for reasons not on record though it was only the respondent who was present. Further orders were issued by the Court for hearing to be on 23 rd November, 2006 with order that Notice be issued to parties. Again, on that date, the suit '-'.Vas not heard hence the trial Magistrate granted leave to the responoent to proceed ·ex parte on 7th December, 2006. However; the suit was.not heard until on 16th January, 2007. It is f~rthe( on' reford that, on 30th October, 2006 one Charles Hizza, a process server·swtirnto have·received summons on that date whereas in his attempt to· serve.the manager of the appellant, he was informed that the said manager was in an official journey as it reads:- 3 ·- -¾i&\£-.•. ~x., .* ;s; _# ... _J Wt.OU$.--•- ♦ -,__,,_,._&_•.,,,., .. ,,.,-."""'·------ ◄.-,.,....,-,,.,...,.._.,:l!e=,-r·-=-•-...~-•!'f'":!:1~~-¥/4-k.,·,.:.,1¥~.~-~•U~ .. r_""'l ►;.,...,:ioo""""F'°•~ • r "Meneja wa Trisha/a Rolling Mi//s·hayupo. Ame.r1a.firlkikazi'~ . It is also pertinent to note that, nowhere on record that the appellant was ever served with summons of hearing. This is strange· because the appellant is an institution well known with its offices situated within proximity reachable without undue difficulties and nothing shows that there was substituted service. Additionally; there is no proof that the appellant was aware of the hearing schedule. The fact that the appellant filed her defence is not proof· that he was served or became aware of the hearing schedule. As such; the respondent was duty bound to ensure service of summons of the hearing date to the appellant through the prescribed means as required by law. In the alternative; filing an affidavit of the process server as _to refusal of service, amounts to denying the opponent an opportunity to be heard. The Court of Appeal of Tanzania in the case of DIRECTOR OF PUBILIC PROSECUTIONS vs. SABINIS INYASI TESHA AND RAPHAEL J. TESHA [1993] T.L.R 237 held that, such denial would definitely vitiate thE: · proceedings. In the case of MBEYA ""." RUKWA AUTO PARTS & TRANSPORT; LIMITED vs. JESTINA GEORGE MWAKYOM~; Civil Appeal No. 45 of 2000 (Unreported) the Court of Appeal of Tanzania added that:- ''In this country, natural justice is not merely a principle of c~mmon law; it has become a fundamental c.onstitutiond! righL Atticle 13(6) (a) includes 4 . . ·• ·- . - --- - - - - _.,_• __ .,..,..,._'ffllfi-!f.... e-•~.-w. -41--.::0=~•-_.,,.,_P--:"',-----'"l"fR"'-¥4-JO-•-a,W.O--.-A..... .,.4-JZ-·.-4r.(.,...· ,.,,....;;...,.;_c:.,,.._.>_.,....,,...,,...__ _ _~ ~ , , , _ . ; . ; iu_"" ~ .. ~) -·- ·;,:r:;----,t:.~-'~..;.., ...~_-• ~l,"'°?l'liP!'° 4..&"'l"G§_.,...?.4-"!'-:f,;.,.,·.,..,....-__ • .: the ·right to be- heard1 amo(lgst· thrt•:i;J.(ttibutes of the equality before- the ~ : , \, • -+- • _..,, '3 la~ and declares in part: . wakati haki na wajibu wa mti.J yeyote vinahitaji kuf"anyiwa uamuzi wa mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu'~ Moreover; in the case of ABBAS SHERALLY & ANOTHER vs. ABDUL S.H.M. FAZALBOY, Civil Application No. 33 of 2002 (Unreported), the Court of Appeal of Tanzania reiterated that:- "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by Courts in numerous decisions. That right is so basic that a decision which is . ' arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice'~ It is_ -also ~mazing that, ..Charles Hizza ·who:• is said to be the: process server is the one alleged to -have been. signed/refused to receive: the said summons. In the premises,:the 1st ground of appeal holds medt.··· In respect of tt;le 2nd ground, .Mr .. ~-w~nga,. submitted . that, parties,)~re • • • :··.. - .. ,. . • :-- ... - '~ ;,: • ., - •• ~ • ,. . • • . ... ~ ··• •• .' 'I-~· bound by their pleadings, . . and tha_tithe Court cannot grant what .has nqt, . _.:.. ' , been sought in· the pleadings. He cited the case of GALAXY PAINTS COMPANY LTD vs~ .FALCON GUARD LTD [2000f 2 1:.A~L.R!. He further argued • ,.-, 4-' ... '~"'· . ~.;._ .~-· - -):~ ~ ' • ' ,--•. , .. ;' . .1.•-.;·•-- .• ,·. • :--. • that, the re'spo'nderit was 'awardetl ·a 'relief which was not sought in the . plaint. He further cited the case of GEORGIA ~ESTINE MTIKILA vs. 5 ----=- ,!!""_-:::___,..,_~=-=·.:..O===•"",;ooo-=""'MfflllltNfflJ,i)W-►~Ji!"":"' =,::::..;.;:::=. •. _~_- ,;_.;,......--;,,...,;;;,-;;~.~~-~~""~~j}f,;;;.;._~,r.-=, ___ _,_ : ~,,...~&~:-.-- *"l'l":..l».... . :,..,.._~--"'""':~o,:,,:,_. _ ~~'W~~-~-?~ .-R~_~L?~,t _.4e>'.~c _'::*~· .~:___~ ., ~'.** ,:~ ~ ~)•:~··· : _ ~ "'-' _........ 0 , REGISTEP:J:p : TRUSTEES OF DAR ES• SALAAM NURSERY· SCHOOL & ·. ""'".·:·-..·: INTERNATIONAL SCHOOL OF TANGANYIKA [19981 T.L.R 512 where it was held that the Co.urt cannot consider reliefs which were not sought. In response, the respondent submitted that; the trial Court was justified to hold in his favour due to serious injuries he suffered. In rejoinder; the appellant's counsel submitted that, the records will assist in determining whether or not the respondent was granted what was pleaded. Truly; parties are bound by their pleadings. The Court is bound to grant either all or some among the reliefs sought but that doe~ not bar ~_he Court from granting some other reliefs flowing and or in consequence and of the nature of the reliefs sought in the interest of justice under the heading "any other reliefs"., In the case of MU FIN DI PAPER MILLS LIMITED vs. TANZANIA ELECTRIC SUPPLY COMPANY LTD, Commercial Case No. 104 of 2005, the High Court of Tanzania observed that:- ''However, the Plaintiff has also claimed for ancillary reliefs under paragraph 20 (f) of the plaint, in which it prays for: - . ' - "any other reliefs to which this court may deem fit to grant'~ Can the Court grant any relief to the Plaintiff under this head? That is the question. In MOGHA 'S LAW OF PLEADINGS IN INDIA (Supra), the learned authors are of the view that under this prayer, the Court has power to grant any general or other relief as it may think ju'it to the same extent as if it has been asked for, provided that the relief should not be of an entirely different description from the main relief. 6 _;]_: __- 1•·'4 ·~•-i-t._ _ _ _P!f-•--,t-Ci-•-.-l·-- _ ;_i~,-~-.-.. ....,,,,--1-"-•--~-,,,.,..__ ,,,.,...:.,.,.,•,_"_._,....,.__ __ -,--,,_,,.,,, __ -,,-.,.,,.,,.,,,.#,.......-,,,__ _ _ _,.,.,..,,._,""::".:~~----~~;:,-~;..;:...,-.-..,...,~/~;..:...:J.J~"•·.c,-,;:_":',·',~ '•- ,: ~ · ,. -The)eacned~autho_rs based~t._lJ/Jir,-~QPiQion on the decision in $HIV DA'YAl : VS UNION A [1963] Punj 538 where it ~as held that: 'The Plaintiff ought to get such 'relief as he is entitled to on the .. facts established on evidence even if that relief has not been specifically prayed for." This principle was followed by the Court of Appeal of Tanzania recently in ZUBERI AUGUSTINO VS. ANICET MUGABE [1992] TLR. 137. Having found that the Respondent was somehow entitled to some relief, although he had failed to prove special damages, the Court sustained an award of shs.500,000/= under the prayer ''any other reliefs'~ From the above expose, I consider it to be the position of the law, that in a fit case, where the Court is satisfied that the Plaintiff is entitled to some relief, although not specifically prayed for, it has inherent power to grant such relief_ils it may deem fit in the circumstances under the prayer ''any other relief" provided that such relief is founded on the allegations in the plaint and evidence on record I must however, quickly add that this is a power that the Court has to exercise with great caution and circumspection. Applying th~ above principles in the present case, I am satisfied that this is one such case that in Which, it is just and equitable to grant some relief to the Plaintiff under ''any other relief'~ Regarding the case at hand, the reliefs in contention were not sought in ' ' the hec:tding -"any,. ot,her r~lief~" r:r.ie_aning.· that, tt1J~ _ responder1t. did not intend to be .awarded "any other reliefs" apart from the three specifically pleaded'iri'the -plaint. If foHows 'that;: had it be/that the clause -"a-r1y -oth~~.r reliefs"' was pleaded, could; the respondent been entitled to the awarded 7 e;iQ....."""J.,,._.... ....~24'""-~-"'"'"-''="'*""l"<i.---=~ _J/4-.-- ◄ -·-..,.;,a<._,_~ . :½..'►.t!!:~-~--.~~~~::e:o.;:;!'l"'~ .. - ....... ,_ ,,.,O'l\!'4'.,..,.,"""·"""':~-=m!!!',_,_'""".~~- .. ."'!',:;?:'.X~£:W:,·4.... •. ...,.,_....,._,.~_·~"'-..•~.¥-l"!'I•,~---*.-'l!'",....··-·~'-*""'M-""":~•-b.MS"".9 .... ~+www...,. "3-~'!:--~-.r•"!'!'i.~ __.... -·al.I. ~~d Jt~\ ~~I!~ lii,jj,: • sdbsistence allowance granted .•·by. the trial · Court? In the .ca~e ·;_6f:: NICHOLAUS HAMISI & 1013 OTHERS vs. TANZANIA SHOE CO. 'LTD & TANZANIA LEATHER ASSOCIATION INDUSTRIES, Ciyil Appeal No. 62 _of 2000 where the Court of Appeal of Tanzania observed at pages 5 and 6 of the typed judgment:- "But the correct position is that it cannot be argued that the first respondent would be stopped from denying liability for Subsistence Allowance because he paid their transport costs. The law is that the first respondent would be liable to pay subsistence allowance only if he was legally liable to repatriate the appellants. Legal liability to repatriate has not been established as we have endeavoured to explain, and there can be no question of estopped regarding the payment of subsistence allowance. In other words the payment of transport charges could have been gratis; or even as a result of a bungle, seeing that the matter was being handled by a number of different Government ministries. In which case the appellants . may be said to have been lucky and, as Mnzavas, J.K. as he then was, said in AMOS KASHUKU versus THE GENERAL MANAGER, TANGANYIKA DYEING AND WEAVING MILLS LTD. H.C Misc. CIVIL APPEAL NO. 6 of 1988, in a situation similar to this one, making the proposed payment would be a second 'wrong; the first 'wrong; being the payment of transport charges, and the two would not make a right: The first respondent's payment of transport charges did not impose a legal obligation to pay subsistence allowance. As Mr. Taib suggested, perhaps the appellant could have sued for damages for detention and specifically proved such damages'~ 8 . --::r~~r~fore; Jrom -the.: jnmi-ediate above position;· though' the· granted~. _, .... • • .... II' ; • ' .,,. ' ' suQsistence allowances were not quantified, yet; ,there was no justification - as it i~ not. on record that the appellant was oblig~d to -repatriate the ' .. respondent because that fact has neither been pleaded nor established during hearing. Besides; respondent cannot claim for subsistence allowance covering the time he was not at work. In the case of PIUS SANGALI & OTHERS vs. TANZANIA PORT LAND CEMENT co. LTD in Civil Appeal No. 100 of 2001 at page 8, the Court of Appeal of Tanzania underscored that:- "We are, therefore, of the firm view that the learned judge erred when she ordered the payment of arrears of wages for the period the appellants were not at work'~ In the premises; the appeal has merits in law and is allowed. The ex parte Judgment entered on 27th April, 2007 is set aside. The remaining pertinent issue for determination is as to which Court the matter· has to be placed for final determination. Apparently; the matter under scrutinY·is a· labour dispute which arose before the coming into force . . . of Employment and Labour Relations Act. When Employment. and Labour • ' -· I Relations Act". came into force in terms of the transition and savings ,·: • • .:. -!' ' ,. • t· ,; 1. " • • • provisio~s under item _13 of the third. s_chedule, old labour disputes pending in Court ought to have been finalized "Within three (3) years. ' . 9 ~--...----~- ~ ; a u a .:p: r =••- - 'i - - r _,;, - .:,w. ·- _._,'i'__,.,:«l"!#'c .':4 i-U¥4t?,J#!1-,,!¥.4'½* ,..,..,. . ~ ,,, . :F_.,.wit,,,.~- I -;,k..N (}fl'!Z:~:>Ji µe 2¢ I. ::.,:,.-.,.1._..::x,-;.,-...-~~:c. ~,_··;·_ .• ~-~--,,~:e~,,•J ----~ ------.:!!: _ _ _ ~ - • • t. In the year 2oio · vid~ Act No. 2 · of 2010, the ·third sclledu'ie w·as amended by deleting iten, 13 .and substituting it with a new item 13 where under item 13(9) it provides:- "The provisions of this paragraph of the Third Schedule shall apply for a period of three years from the date of publication of this amendment in the Gazette and, the Minister may, upon consultation with the Council and by Notice published in the Gazette, extend that period for an aggregate period not exceeding three years'~ The Written Laws (Miscellaneous Amendments) (No. 2) of 2010 · was published on 28th May, 2010 in the Gazette No. 22 Vol. 91. In that respect, ,. the old labour dispute settlement mechanism ceased on 28 th May, 2013 when the extension under third schedule attained three (3) years. It is unfortunate that, the Minister responsible for labour matters has not extended time for continued _determination of labour disputes in accordance with old mechanism for adjudication the disputes under the repealed labour laws. In this regard, having restored parties to the former positions up to when the Labour Officer lodged a report to the District Court, it is the labour Court which has exclusive jurisdiction to entertain the labour disputes. C9nsidering the exclusivity of the Jurisdiction of labour Courts in labour disputes; the District Court is not vested with jurisdiction to entertain the disputed under scrutiny; As such, the disputed is referred to the Commission for Mediation and Arbitration for determination. Furthermore; the District Court is hereby directed to return the disputed to - the Labour Officer who shall forward the matter to ·Commissioner for lO Mediation:: . and "-.. .( Albiti::ati.on. I make. no order as to·. costs considering, the ., ,;, ; circumstances of the case. Right of appeal is explained. - S.E. l 30/10/2013 chambers this 30 th day of October, 2013 in presence of Mr. Innocent Mwanga learned counsel. for the appellant and in presence of the respondent in person. 11