20080805 TZHC Dar es slaam

IN THE HIGH COURT OF TANZANIA • AT DAR ES SALAAM CIVIL APPEAL NO. 134 OF 2002 VICTOR SUNGURA TOKE ......................APPLICANT VERSUS P.S.R.C& BOARD OF INTERNAL TRADE .............RESPONDENT Date of last Order: Date of Ruling : 5/8/2008 RULING MLAY, J. The Plaintiff VICTOR SUNGURA TOKE who was an employee of the BOARD OF INTERNAL TRADE, (2ND Defendant) field a suit against the PRESIDENTIAL PARASTATAL SECTOR REFORM COMMISSION(lst Defendant) and his employer (2nd Defendant). According to the Plaint filed on 11/4/2002, the Plaintiff avared in part as fallows: .. That the plaintiff's claim against the defendants is for the paymentof gratuity of Tshs. 31,450,5141- and upkeep allowance from the 1st June, 2000 to 31s' December, 2001 amounted to Tshs. 62,1 80,000,000/= That the applicant was employed by the 2nd defendant BIT from January, 1990 to may 2000 when the contract was terminated by PSRC vide letter dated 31s' May 2000 Ref No. PSRC 1/ 13148. The applicant was employed back in 1990 on permanent and pensionable terms which was not right because he was above 40 years of age and the right way was to employee him on employment contracts. That upon the plaintiff realising the above mishap immediately - reported it to the management which forwarded the some the Board of Directors of the 2nd Defendants which at its 69 the Meeting held on the 17th April 1997, after deliberating on the matter resolved that the plaintiff employment terms be deemed as permanent and pensionable and that matters regarding pension benefits to be sorted out administratively. . That on 28th January, 2000 the 2nd defendant Board meeting after consultation will UTUMISHI hold that the plaintiff ten years of employment as permanent and pensionable terms be changed into contract term from 1990 in conformity with standing government regulations. 2 -, ,- That according to standing Government regulations the applicant was to sign a new contract at the end of each year and was to be paid gratuity at the end of every contract period. That dispute several reminders from the applicant to the secretary the Board, and the 2nd defendants Board Chairman this Board Resolution had not been implemented up to the date of the applicant retrenchment that is 31st May 2001. WHEREFORE the plaintiff plays the judgment and decree against the defendants jointly severally as follows; Demanding Tshs.31,450,514.00 that is compounded gratuity at 25% of contract salary per annum payable in year 2001. Subsequently the Tshs.62,180,000.00 for subsistene up keep allowance from 1st June 2000 to 31st December,2001. General damaged to be assessed for breach of contract and interest in thereon at the court rate from the days of Judgment full and find payment. The defendants filed a joint Written Statement of Defence in which they disputed the Plaintiffs claim and also made what they called a "counter-claim". After a series of applications, rulings and adjournments spanning a period of six years, on 4/06/08 the defendants 3 0 1 advocate Mr. Fungamtama filled a NOTICE OF PRELIMINARY OBJECTION to the effect that:- The Honourable Court Lack the requisite original jurisdiction to entertain and determine the suit since it is a labour dispute; and The suit is not maintainable since by the enactment of Act No. 27of 2007 the Presidential Parastatal Sector Reform Commission (the 1st Defendant) herein ceased to exist and all its roles and functions including to all as the official receiver of the 2nd Defendant caine to an end with effect from 31st day of December, 2008 and also that the 2nd Defendant had long been would up and therefore not in existence" When the suit came up on 10/6/08, the advocates of the parties were ordered to file written submissions on the preliminary objection. The first ground of the preliminary objection, is on lack of jurisdiction by this court to entertain in the suit because it is a labour dispute. The Defendants Advocates K.M Fungamtama submitted that "the first preliminary objection has been prompted by the decision of the Court of Appeal of Tanzania in Civil Appeal No.33 of 2002 between TAMBUENI ABDALLAEI& 89 OTHERS VERSUS NATIONAL SOCIAL SECURITY FUND (unreported)..." The leaned advocate contended that "Tambueni Abdallah case put both the bench and the Bar on proper perspective regarding the Court with competent jurisdiction to entertain and determine cases involving claims corrected with employment". He argued that "the facts contained in paragraphs 4,5,6,7,8and 9 of the plaint read together with the relief's sought by the plaintiffs .....are matters connected with the employment". He referred to the definition of the term "trade despute" in Section 3 of the Industrial Court Act No. 41 of 1967 which is: "Any dispute between an employer and employees on an employee in the employment of that employer connected with the employment, or with the conditions of labour of any of those employees or such employee" (emphasis his He also quoted the definition of the term "dispute" in the Blacks Law Dictionary, which I see no need to reproduce here. He submitted that this definition of "trade dispute" covers all manner of conflicts connected with employment, including what he called "the quarrel between the Plaintiff and the Defendants" and that "pursuant to the command given in the Tambueni Abdallah case are adjudicable in the manner provided for under Section 4 of the Industrial Court Act". He quoted from page 13 of the typed ruling of the Court of Appeal in the TAMBUENI ABDALLA'S case where the court stated: 5 - & "It is clear to us that trade disputes" have a follows the prescribed procedure and there is no room for the going to the High courts straight . The High Court has no original to jurisdiction to entertain trade disputes. Such matters are dealt with in accordance with the Act" (emphasis his) He went on to list four decisions of this Court in which he claimed TAMBUENI ABDALLA'S case was relied upon and the proceeding struck out. These cases are:- Civil Case No 174 of 2003 Makomba Mshindo Mwaruka & Others Versus Tanzania Telecommunication Company Ltd & PSRC (unreported) - Civil Case No. 98 of 2004 Abdallah Ramadhani Mbinga & 4 others Versus The Registered Board of Trustees of the National Social Security held (unreported). Civil Case No.167 of 2005 Jacob W. J. Palangyo Versus Presidential Parastatal Sector Reform Commission (unreported). Civil Case No 392 of 2001 Pascal L. Bungi Versus Mwananchi Engineering and contracting Corporation &PSRC. The defendants advocate concluded that the suit pending before this Court is a "trade dispute" and has been bought in the wrong forum. The learned advocate strayed into the provisions of the n. Employment and Labour, Relations Act 2004 and the establishment of the Labour Division of High Court, matters which I do not think are relevant, to the matter before this Court. The second ground of the preliminary objection, alleges that the suit is unmaintanable following the enactment of Act No 27 of 2007, by virtue of which the Presidential Parastatal Sector Reform Commission (1st Defendant) ceased to exist. In the written submissions the Defendant's advocate corrected himself by referring to Act No 6 of 2007, The National Banks of Commerce Reorganization and Vesting of assets and Liabilities (Amendant (No 2) No 26 2007, instead of Act No 27 of 2007, which does not exist. He submitted that, and I quote from page 5 of the written submissions: "Pursuant to the said Act the 1st Defendant's term of life expired on the 31st December,2007 and consequent upon the said developments its roles and functions including to act as the of financial receiver of the 2nd Defendant equally came to an end with effect from the said date. The 2nd Defendant also had long been wound up by the Government. Thus, as long as both Defendant are not in existence and as long as the time for making the necessary application to have the 7 successor joined has already expored their this suit want and the only remedy is to strike it in its entirely will costs." The Plaintiffs advocate Maira & Co Advocate in a short submission, conceded the first ground that this court lacks jurisdiction by reason of the decision of the Court of Appeal in the TAMBUENI ABDALLAH'S case. The learned advocates stated in their submissions. "Technically and obvious as the matter stood we found no ground for engaging in length arguments on these submissions only to land on the same findings. Although there are conflicting decisions in the issue .............it may seem to some circles including ourselves that the position of the law by the Court of Appeal in the case of Tambueni Abdallah and 89 others ......has declared the high Court to have no jurisdiction in such disputes. The learned advocates did not however want to give up without a fight. They submitted in affect that since the Court had set a speed track for the disposal of the suit and also that the case has been pending for seven years since 2002, and the Court "has never disturbed it, it cannot howeverde part from it, rathei, it is binding". 8 They therefore invited this court to "exercise its discretionary powers to let this matter continue to the end and if will see that the said position is not possible that the matter been struck off with no order asto costs..... The Defendants advocates in reply submitted that the Plaintiffs submissions have merit to the extent that he concedes the application of the decision of the Court Appeal in the case of TAMBUENI ABDALLAH and 89 others to matters of the nature of the Plaintiffs suit. On the Plaintiffs submissions that this court is bound by the speed track of the case, the Defendants advocates submitted that: "even if jurisdictional objection was not raised at the time of pre-trial conference when the speed track relied upon was set, such failure did not have the effect of conferring jurisdiction on the court". He cited the case of ALLARAKHIA Versus AGAKHAN(1969) EA 613 and consolidated Civil Application No. 19 and 27 of 1999 TANZANIA ELECTRIC SUPPLY COMPANY LTD Versus INDEPENDENT POWER TANZANIA LIMITED(CA) (unreported) in which it was decided that parties cannot by.... consent or by agreement confer jurisdiction upon a court. 9 He further cited the English case of MAYES Versus MAYES(1971 WLR 67 at page 684 where it was stated that: "You cannot by waiver convert a nullity into nullity" He submitted that on the above proposition the Speed Track which was set by the Court and remained undisturbed is not binding for being a nullity and the Court can de.part from it for want of jurisdiction . He also cited the case of RICHARD JULIUS RUKUMBURA Versus ISACK NTWA MWAKASILA AND TANZANIA RAILWAY CORPORATION- CIVIL APPEAL NO 2.of 1998 in which it was stated that. "The question of jurisdiction is permanent in any Court proceedings. It is so fundamental that in any trial if it is not raised by the parties at the initial stages, it can be raised and entertained at any stage of the proceeding in order to ensure that the Court is properly vested with jurisdiction to adjudicate in the matter before it ". (emphasis his). The learned advocate submitted that "on a matter which the Court has no requisite jurisdiction to entertain and determine it, sympathy or equivalable consideration are out of place." Ii On the second point of the preliminary objection, the Defendant's advocate reiterated his earlier submission that the Plaintiff, should have applied to have the name of the 1st Defendant substituted with that of the consolidated Holding Corporation within the period submitted under Order XXII Rule 4 (3) of the Civil Procedure Code, Cap 33,2002. The first point of the preliminary objection is that this Court lacks original jurisdiction to entertain the plaintiffs suit which is a trade dispute. The decision in the Court of Appeal of Tanzania in the case of TAMBUENI ABDALLAH AND 890 OTHERS, which has been cited earlier, was relied upon, for his proposition. The Plaintiffs - advocates have thrown in the towel and conceded the objection. They have however submitted that since the Court had set the track by which this case is to be disposed of, it should be bound by the track or use its discreation, to continue with the suit. The speed track of a suit is assigned to a suit pursuant to the provisions of Order VillA of the Civil Procedure Code Cap 33 RE 2002. Rule 3 (1) of the said Order provides as follows: "3-(1) In every case assigned to a specific judge as magistrate a first scheduling and settlement conference attended by the parties or their recognized agents or advocates shall be held and presided over by such judge or magistrate within a 11 period of twenty one days after conclusion of the pleadings for the purpose of ascertaining the speed track of the case, resolving the case through negotiation, mediation, arbitration, or such other procedures not involving a trial" Rule 4 of the same order further provides: 4. T/\7hen scheduling conference order is made, no departure or amendment of such order shall be allowed unless the Court is satisfied that such • departure or amendment is necessary in the ---- interests of justice". The provisions of Order VillA quoted above, do not confer jurisdiction but provide for the procedure to be followed after the pleadings have been completed. The provisions do not even confer discretionary powers on the Court to proceed with the case, if the Court does not have jurisdiction to entertain the proceedings. As the learned advocates for the Defendant has correctly submitted and as directed by the Court of Appeal in the RICHARD JULIUS RUKUMBURAS case cited above, the issue of jurisdiction is permanent and can be raised at any stage of the proceedings, including the period after the scheduling conference has been held and the Speed Track of the case has been assigned. It is therefore 12 justifiable for this Court to consider the issue of jurisdiction even at this stage. In the present case, the Defendants have raised the preliminary abjection to the effect that this Court lacks jurisdiction to entertain the suit, and they have relied upon the decision of the Court of Appeal in the TAMBUENI ABDALLAH Case cited curlier on, in this ruling. In that case, the Court of Appeal considered the provisions of section. 3 of the Industrial Court Act, which define a "trade dispute" as: "Any dispute between an employer and employees or an employee in the employment of that employer corrected with the employment or non employment or the termsoftheêhployment, or will the conditions of labour of any of those employees or such an employee" The Court of appeal staled that;. "it is clear to us that trade disputes have to follow that prescribed procedure and there is no room for going to the High Court straight. The High Court has no original jurisdiction to entertain trade disputes. Such matters and dealt with in accordance with the Act" 13 -V The question therefore is whether the plaintiffs claim in the present case, is a "trade dispute". In the plaint the plaintiffs claims that he was employed by the 2nd Defendant on "permanent and pensionable terms" but it was later decided that "the plaintiffs ten years of employment in permanent and pensionable terms be changed into contract terms from 1990 in conformity with standing government regulations "(para (8). It is further claimed in paragraph 9 that "the applicant was to sign a new contract at the end of each year and was to be paid gratuity at the end of every contract period". The Plaintiff complains that the above terms were not implemented up to the date of his retrenchment and claims payment of "gratuity" and "general damages for breach of contract" There is no doubt in my mind that the plaintiffs claim is a "dispute" between an employer and an "employee in the employment of the employee connected with employment ... .... or the terms of the employment". The plaintiff is alleging that the terms of his employment have been breached or not fulfilled by his employer. The claim is therefore a "trade dispute" within the meaning of section 3 of the Industrial Court of Tanzania Act. The Plaintiffs counsel has himself conceded the point. As the dispute is a trade dfspute it has to be dealt went in accordance with the provisions of the Industrial 14 • Court of Tanzania Act. As stated in the TAMBUENI ABDALLAH'S case, this court lacks original jurisdiction to entertain trade disputes. Accordingly the suit is improperly before this Court and it is struck out. In the light of the decision on the first preliminary objection, it is only of academic interest to consider the second point, which is failure to apply to substitute the successor to the 1st Defendant, which is the Consolidated Holding Corporation. I do not however think that this point has any merit. The Consolidated Holding Corporation has stepped into the shoes of the Presidential Parastatal Sector Reform Commission. The Defendants claim that the suit is not maintainable for the mere reason that the consolidated Holding Corporation has not been substituted and an application for substitution having not been made, is therefore without any legal, foundation. The role of Presidential Parastatal Sector Reform Commission over specified Corporation, has been in wholesale, assumed by the consolidated Holding Corporation. Secondly, the provisions of Order XXII Rule 4(3) of Cap 33 RE 2002, applies to a case .in which the defendant is deceased and not where a Corporate defendant has been succeeded by another. 15 As the preliminary objections have only be partly successful, I agree with the Plaintiffs counsel, though for different reasons, that each party should bear its on costs. I \JUD - Delivëred in th--prence of Mr. Fungamtama and in the absence of the Plainfiff and his advocate this 5th day of August 2008. JUD 5/08/2008. ri