PRINCIPAL SIMANJIRO ANIMAL HUSBANDRY VOCATIONAL TRAINING CENTRE v ARNOLD MAKINDA 1997 TLR 160 (HC) D

PRINCIPAL SIMANJIRO ANIMAL HUSBANDRY VOCATIONAL TRAINING CENTRE v ARNOLD MAKINDA 1997 TLR 160 (HC) D

Court High Court of Tanzania - Arusha E

Judge Mroso J

CIVIL REVISION 8 OF 1997

10 June 1997 - ARUSHA

Flynote

F Civil Practice and Procedure - Fresh proceedings - Institution of in violation of

Order 23 Rule 1(3) - Employment cause - Whether such constitutes a suit for

purposes of Order.

-Headnote

G In an application for the revision of certain proceedings the court was required to

determine whether the institution of an employment cause was a suit for the purposes

of Order 23 Rule 1(3).

Held:

(i) The cause in question was not initiated by a plaint as is the case with a

suit but by a labour officer's report. The labour officer had statutory authority under s

132 of the employment Ordinance to refer to a magistrate employment disputes

which he had failed to settle; H

(ii) Under s 134 of the Employment Ordinance a magistrate could treat the

report as if the proceedings were a civil suit: thus the proceedings were not really a

suit and even the provisions of the Civil Procedure Code in respect of such

proceedings were relevant only as far as they might be applicable; I

1997 TLR p161

MRUSO J

(iii) The court remarked further that it was implicit in s 133(1) that the A

district magistrate in question had the requisite territorial jurisdiction.

Case Information

Application granted and proceedings set aside.

No cases referred to.

M Chambers and L Chambers for the respondent. B

[zJDz]Judgment

Mruso J:

This court has been moved by the applicant acting through his advocates, M/s

D'Souza Chambers, to call for the lower court record in Employment Cause No 13 C

of 1995 of the District Court of Arusha (sic) and revise certain proceedings in it under

s 44(1)(b) of the Magistrate' Courts Act 1984. Let me hasten to point out that the

District Court of Arusha would not have jurisdiction over the dispute if the cause of

action occurred in Simanjiro, which is a different territorial jurisdiction from the

Arusha district. Besides, if the name of the opposed defendant is anything D to go

by, he is supposed to be residing or carrying on business in Simanjiro district. I have

used the word `supposed' intentionally because I suspect there may be a question

whether the defendant as depicted in the pleadings is a legal person capable of being

sued. Even so, these two matters were not argued before me E and I express no

decision on them. It is apparent, however, that the respondent intended the

proceedings to be filed in the Court of Resident Magistrate, Arusha because the report

of the Regional Labour Officer, Arusha which initiated the F proceedings before the

lower court was addressed to `The Senior Resident Magistrate, Resident Magistrate

(sic) Court, PO Box 104, Arusha', not of the District Court, Arusha. For inexplicable

reasons, probably sheer carelessness, the cause was opened in the District Court of

Arusha, as the case file cover shows. Indeed, if the cause had been filed in the Court

of Resident Magistrate, Arusha as G the respondent Arnold K Makinda appears to

have intended, Mr Mbuge, District Magistrate, would not have territorial jurisdiction

not to say that he does not sit in the Court of Resident Magistrate, Arusha. Now back

to the matters that were presented by the applicant to the High Court for revision.

But first, a brief background to these proceedings. The respondent, Makinda, had filed

civil case H No 22 of 1994 in the Court of Resident Magistrate, at Arusha against the

applicant. On 25 April 1994 the suit was withdrawn at the request of the respondent,

then plaintiff. A certified true copy of the prayer to withdraw the suit and the court

order making the suit and a Miscellaneous Civil Application No 63 of I

1997 TLR p162

MRUSO J

A 1994 was withdrawn has been annexed to the Chamber Application in these

revision proceeding. In around February 1995 Employment Cause No 13 of 1995 was

filed in court. The advocates for the applicant raised a preliminary point of objection

that the case which appeared to be substantially the same case which the respondent

had earlier withdrawn was being refiled contrary to the provisions B of Ord 23 Rule

(3) of the Civil Procedure Code. Another preliminary point of objection was that

assigned District Magistrate, Mr Mbuge, did not have pecuniary jurisdiction in view

of the amount of over one million shillings which the respondent C was claiming

against the applicant. It was pointed out to the presiding magistrate that his pecuniary

jurisdiction, according to Government Notice No 495 of 1990, was limited to shillings

100 000/= in the case of movable property and Shs 150 000/= in the case of immovable

property. Both those points of law were overruled D by the presiding District

Magistrate. Subsequently, however, the District Magistrate conceded that he had no

pecuniary jurisdiction and disqualified himself. The case was reassigned to a Resident

Magistrate, Ms Mushi. In the meantime E Government Notice No 432 of 1966 was

published in the Official Gazette on 29 November 1996. By that Government Notice

the pecuniary jurisdiction of Mr Mbuge as well as that of many other District

Magistrates was enhanced to Shs 10 million in the case of movable property and to

Shs 12 million in the case of immovable F property. The amount claimed in

Employment Cause No 13 of 1995 appeared therefore to be within the pecuniary

jurisdiction of Mr Mbuge. So, on 25 March 1997 the Resident Magistrate In-charge

re-assigned the case back to Mr Mbuge for trial. The advocates for the applicant urge

that even though Mr Mbuge now has G enhanced pecuniary jurisdiction yet the

order he made that he had jurisdiction should be quashed and, secondly, that the

employment cause which was filed without leave after the withdrawal of Civil Case

No 22 of 1994 and the ruling of Mr Mbuge that Order 23 Rule 3 of the Civil

Procedure Code had not been violated should be quashed and set aside. Finally, that

the case should now be reassigned to another magistrate of competent jurisdiction

instead of Mr Mbuge because even if the same argument about Employment Cause No

13 of 1995 were to be made again to him he is unlikely to change his mind in view of

his own earlier ruling on the matter. H

The respondent was represented in the present proceedings by two firms of advocates

namely Makange Chamber and Lengai Chambers. They conceded that the

proceedings which were before I

1997 TLR p163

MRUSO J

Mr Mbuge before his pecuniary jurisdiction was enhanced were invalid but argued

that now he has A jurisdiction and should proceed to hear the case. They also prayed

that since it is the magistrate who assumed jurisdiction he did not have, the

respondent should not be saddled with costs of these revision proceedings.

Although the respondent claims that he withdrew from court Civil Case No 22 of

1994 with leave to B refile the lower court records before me do not bear him out. It

is shown that the respondent who was addressing the RM's Court in Miscellaneous

Civil Application No 63 of 1994 said:

`I pray to withdraw the matter with this court since I have another matter

pending before the labour officer.' C

Then he proceeded to say:

`I have withdrawn both the main suit and the Chamber Application.' D

By the main suit he meant Civil Case No 22 of 1994. So, according to the court record

he did not say he withdrew the suit with leave to refile as he now claims. He also did

not seek and obtain an affidavit from Mrs P S Fikirini, RM (as she then was) to the

effect that the respondent had withdrawn E the suit with leave to refile but that she

omitted to record him correctly. If Employment Cause No 13 of 1995 was a suit,

therefore, it violated the provisions Order 23 Rule 1(3) of the Civil Procedure Code

1996 because the respondent had no permission of the court to institute the fresh F

proceedings. The question is whether the employment cause which appears to have

been brought under s 132 of the Employment Ordinance, Cap 366 as amended by Act

5 of 1969 was a suit within the meaning of Order 23 Rule 1(3) of the Civil Procedure

Code.

It seems to me that while Civil Case No 22 of 1994 was undoubtedly a `suit'

Employment Cause No G 13 of 1995 was not. That cause was not initiated by a plaint

as is the case with a suit but by a labour officer's report. The labour officer has

statutory authority under s 132 of the Employment Ordinance, again as amended by

Act 5 of 1969, to refer to a magistrate employment disputes H which he has failed to

settle.

Under s 134 of the Employment Ordinance (as amended by Act 5 of 1969) a

magistrate can treat the report `as if the proceedings ... were a civil suit'. Thus, the

proceedings initiated by a labour officer's report are not really a suit and even the

provisions of the Civil Procedure Code in respect of I such proceedings are relevant

only `as

1997 TLR p164

MRUSO J

A far as they may be applicable'. The section ends with a proviso that the magistrate

shall hear and determine such proceedings according to substantial justice `without

undue regard to technicalities of procedure'. It will also be observed (unless the

definition of district magistrate in s 133 of the B Employment Ordinance has since

1963 be amended) that any district magistrate whether or not he is a civil magistrate

can try proceedings under the Ordinance. I hold, therefore, that the proceedings in

Employment Cause No 13 of 1995 are not necessarily invalid for the reasons given by

the applicant.

Section 133(1) of the Ordinance is in the following words:

C `133(1) Every district magistrate (whether or not he is a civil magistrate) shall

have jurisdiction, notwithstanding anything to the contrary contained in any

Ordinance or law respecting the jurisdiction of such magistrate, in all cases and

matters arising between employers and their employees and with reference to their

relative right and D duties or to any matter on thing or offence for which provision

is made in this Ordinance.'

On a casual glance at this subsection one might think that any district magistrate

regardless of whether he has territorial jurisdiction could adjudicate an employment

dispute brought to court E through a report of a labour officer. But I think that such

an understanding of the provisions would be wrong. It cannot be that a district

magistrate could go to any place in the country regardless of whether he was posted

to the district and proceed to try an employment dispute which was taken to F the

court by a labour officer. I think it is basic that the district magistrate has requisite

territorial jurisdiction. It is for that reason that I think that after the pleadings have

been filed in the correct court, which I believe would be the court of Resident

Magistrate, a resident magistrate should be assigned to try it. All this should be done

as speedily as possible so that the long outstanding G dispute can be resolved. The

respondent should also take opportunity to revisit the question whether he still

intends to proceed against the person shown as the defendant.

The proceedings in Employment Cause No 13 of 1995 in the District Court of Arusha

are hereby quashed and set aside but since this decision is not based on the grounds

advanced by the H respondent, each party to bear their own costs.

1997 TLR p165

A