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Chamungwana v Parastatal Sector Reform Commission and Another (CIVIL CASE NO. 1 OF 2000) [2005] TZHC 37 (23 August 2005)

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IN THE HIGH COURT OF TANZANIA


AT DAR ES SALAAM


CIVIL CASE NO. 1 OF 2000



SALLU CHAMUNGWANA


ANNE MSOFE


JONDO PAZI



JUMANNE MWENELUWALA

AND 55 OTHERS PLAINTIFFS



VERSUS


1. PARASTATAL SECTOR REFORM COMMISSION

2. NATIONAL BICYCLES CO. LTD. DEFENDANTS





RULING


ORIYO, J.:



The plaintiffs sued the defendants for unlawful termination of employment through a redundancy exercise. They claimed for payment of various heads of terminal benefits; declarations that the termination was null and void and that the plaintiffs are still in employment of the second defendant. Their further claim is for general damages, interest and costs of the suit.

The defendants, in reaction to the suit, have raised a preliminary point of objection in law that this court has no original jurisdiction to hear and determine the matter as the same has been ousted by the Industrial Court of Tanzania Act, 1967. On that basis the defendants pray that the suit be dismissed with costs.



Apparently the plaintiffs readily concede that this court has no original jurisdiction to entertain the suit as it is a trade dispute as defined by SECTION 3 of the Industrial Court of Tanzania Act as amended by Act No. 13 of 1990 and Act No. 2 of 1993. The plaintiffs further concede that the law is as restated by the Court of Appeal decision in the case of TAMBUENI ABDALLAH and 89 OTHERS vs NATIONAL SOCIAL SECURITY FUND, C/A No. 33/00 DSM (Unreported)


On the foregoing, the defendants preliminary objection that this court has no original jurisdiction is upheld.



However, the plaintiffs do not end there. They seek remedy under Order VII rule 10 (1) of the Civil Procedure Code which states:-



"The plaint shall at any stage of the suit be returned to be presented to the court in which the suit should have been instituted."

This is how the plaintiffs put the current legal situation­'s we write this submission, the High Court Labour Division has started under the Labour Institutions Act No. 7/04 under G.N. 24 of 2005 which came into force on 1st February 2005. Since the proceedings have started we humbly pray that the matter be returned to the High Court Labour Division instead of being dismissed. Alternatively, the same be returned to the Industrial Court."


As correctly submitted by the defendants, the suit cannot be returned to the Industrial Court of Tanzania because it is not a Court within the definition assigned to it under Section 3 of the Civil Procedure Code (Cap 33 Revised Edition, 2002). SECTION 3 defines the word Court to mean:-



"the High Court of the United Republic, a Court of a resident magistrate or a district court presided over by a civil Magistrate."



Therefore the Word Court under Order VII rule 10 (1) of the Civil Procedure Code does not include the Industrial Court of Tanzania.

Further to that, under the provisions of the Labour Institutions Act 2004 read together with the Employment and Labour Relations Act No. 6 of 2004 and the Second Schedule thereto, various laws are repealed including the Industrial Court of Tanzania Act 1967. However, the transitional provisions of the Third Schedule provides, inter alia, as follows under paragraph II thereof:-



"(2) Any claim arising under the repealed laws before the commencement of this Act shall be dealt with as if the repealed laws had not been repealed."



In addition to that, paragraph II (3) provides:-



"Any suit or other civil proceeding commenced before the commencement of this Act shall be dealt with as if the repealed laws had not been repealed/'



Under the clear provisions of the Civil Procedure Code, the Labour Institutions Act 2004 and the Employment and Labour Relations Act 2004; the alternative remedy being sought by the plaintiffs is not available here.

All in all the suit is struck out as incompetent. Considering the :ircumstances of the suit, I make no order for costs.







(K.K. ORIYO) JUDGE 23/9/2005


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