AT DAR ES SALAAM. CIVIL APPEAL NO. 45 OF 2006 (Original Morogoro District Court's Labour Case No. 23 of Mzonge, SDM) JUDGMENT

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1 AT DAR ES SALAAM CIVIL APPEAL NO. 45 OF 2006 (Original Morogoro District Court's Labour Case No. 23 of Mzonge, SDM) Date of last order - 15/2/2008 Date of Judgment 21/2/2008 Shangwa, J. JUDGMENT This appeal is against the Ruling of Mzonge, SDM dated 9 th February, 2006 in Morogoro District Court's Labour Case No. 23 of In his ruling, Mzonge, SDM held that the Appellant's suit was time barred as the cause of action accrued in 1996 and the suit was lodged on 22 nd August, 2005 which was more than 3 years after the expiration of the Limitation period. He said that the limitation period expired on the 30 th June, In this appeal, the Apellant

2 2 was represented by Mr. Tulyamwesige and the Respondent was represented by Mr. Matunda. Both Advocates presented written submissions on behalf of their clients. From the trial District Court's record, it can be seen that the Appellant filed a suit in which she claimed for more terminal benefits which had not been paid to her by the Respondent such as transport expenses from Mzumbe area to her home village called Namirembe in Ukerewe District, subsistence allowance and other payments as indicated in the Labour officer's Report which was filed in the trial court by the said officer. In her memorandum of appeal, the Appellant has raised three grounds of appeal which read as follows: 1. That the Senior District Magistrate erred in law to hold that the labour case was time barred. 2. That the Senior District Magistrate erred in law in not accepting the ruling of the Court

3 3 of Appeal which held that the Appellant can go to the workers union. 3. That the Senior District Magistrate erred in law in holding that the cause of action accrued in 1996 contrary to the Court of Appeal decision. In my view, there is only one burning issue in this case that has to be determined by this court. This issue is whether or not the Senior District Magistrate erred in holding that the Appellant's labour case is time barred. The fact that the Appellant was an employee of the Respondent since 1974 up to 30 th June, 1996 when her services were terminated is not in dispute. It is also not in dispute that after being terminated from employment she filed a suit in the District Court of Morogoro namely Civil Case No. 74 of The case was dismissed and she appealed to the High Court which dismissed her appeal also. After dismissing he

4 4 appeal, she applied for leave to appeal to the Court of Appeal. Her application was refused by the High Court, Luguru PRM with extended jurisdiction. She then filed a similar application to the Court of Appeal which was refused by Ramadhani, la. as he then was. In his Ruling, Ramadhani, J.A. held as follows and I quote: HI entirely agree with the learned judge that there are no grounds of appeal worthy coming to this court for consideration. The suit was declared premature and that the matter ought first to have gone to the workers Union Branch. remedy. So, the applicant is not without a She can go to the workers Union. So, I dismiss the application for leave with costs'~ Following the said Ruling, the Appellant went to the Workers Union Branch which held that her labour case was

5 5 time barred. She then applied to the Minister responsible for legal affairs for extension of time to appeal. The Minister was of the view that her appeal was within time and that time started to run from the time of decision of the Court of Appeal. Thereafter, she filed Labour Case No. 23 of 2005 in the District Court of Morogoro. The Senior District Magistrate dismissed it after upholding the preliminary objection which was raised by the Respondent that the suit was hopelessly time barred. She was not satisfied with the decision of the said court and appealed to this court. At page 3 of his typed judgment, the Senior District Magistrate had the following to say and I quote: nand in my considered vie~ the cause of action in this matter arose on the Jd h June, 1996 and the argument by the plaintiff that the Minister responsible for legal affairs in consultation with A.G. had an opinion that the

6 6 cause of action and limitation period in this matter started to run on the ls h December, 2001 in fact that is not our law and cannot hold water'~ I have taken time to consider as to whether or not the Appellant's suit was time barred and I have come to the conclusion that it was not time barred. By holding that the Appellant's suit was time barred, both the workers Union and the District Court of Morogoro failed to take into consideration the decision of the Court of Appeal in Civil Application No. 94 of 1999 wherein Ramadhani, la. as he then was refused to grant leave to the Appellant to appeal against the decision of the High Court, Luguru PRM with extended jurisdiction and said that the Appellant could get the remedy for her claims by going to the workers union. His Lordship Ramadhani, J.A. as he then was would not have said so if it was not clear in his mind that the

7 7 Appellant's suit was not time barred. In the light of the said decision, the workers union was supposed to consider her claims and resolve them in any way it would have considered fit. The District Court of Morogoro was also supposed to interprete the decision of Ramadhani J.A. as he then was in favour of the Appellant and determine her suit in either way. In addition to that, the District Court of Morogoro was supposed to honour the decision of the Minister for legal affairs who said that her suit was within time and that the time started to run from the time of the decision given by the Court of Appeal. The said decision stands unchallenged. The Senior District Magistrate had no powers to question its correctness or overrule it. In my opinion, as the Appellant lodged her claims in the Court of Law from the time when she was retrenched up to the time when the Court of Appeal of Tanzania told her to go to the Workers Union Branch first for remedy, it was not

8 fair for the District Court of Morogoro to dismiss her suit on grounds that it was time barred. Again, as the Minister for legal affairs said that her suit was within time when she applied for extension of time to lodge it, then, it was not fair for the District Court of Morogoro to hold that her suit was For these reasons, I quash the Ruling of Mzonge, SDM given in Labour Case No. 23 of 2005 at Morogoro District Court and order that the said case should be heard and determined jurisdiction. on merit by another magistrate with competent Each party to bear its own costs. A.Shangwa JUDGE 21/2/2008

9 Delivered in open court in the presence of the Appellant and Mr. Nyangarika for Mr. Matunda for the Respondent this 21 st day of February, ~ A.Shangwa JUDGE 21/2/2008