SOME 543 former employees of Sungura Textile Mills Limited have lost their appeal they had lodged to challenge the dismissal of the suit they had filed against Permanent Secretary in the Ministry of Industry and Trade and Attorney General, seeking terminal benefit payments amounting to 325m/-.
Justice Gerald Ndika, Zephrine Galeba and Abraham Mwampashi ruled against the ex-employees after dismissing the grounds of appeal they had lodged to fault the judgment of the High Court delivered in Dar es Salaam 12 years ago.
In the highly contested judgment, the High Court dismissed the suit after holding that it was time barred. Having been aggrieved by the decision, the appellants raised three grounds of appeal.
They stated that the High Court judge erred in law by failing to invite the parties to address him on the question of limitation raised by Judge Suo Motu.
In their judgment, the justices of the Appeal court rejected all the grounds of appeal, after noting that the question of limitation was not raised by the trial judge Suo Moto (literally meaning own motion) , but rather pleaded by the parties in their pleadings.
They noted further that the question was not determined by another judge before being resolved by the trial judge and that the trial judge had not erred in not deciding the issues framed by the parties before hearing of witnesses summoned by the parties.
Under Order XIV Rule 1(4) of the Criminal Procedure Code, there are two types of issues, the justices said, there are issues of law and issues of fact and such issues are not determinable at random.
"According to law, they must be determined in sequence, the issues of law start and if they are overruled, those of fact follow. Let us hasten to state right here that if the issues of law are upheld, the court is precluded from entertaining issues of fact," the justices said.
They pointed out that in civil trials and even in criminal proceedings, trial courts are required by rules of procedure to try and determine issues of law first if such issues arise before getting to determining issues of fact.
"We must observe here that allegation that a particular action is barred by limitation based on statute, is an issue of jurisdiction, and section 3(1) of the Law of Limitation Act provides that where an issue of limitation is raised, determined and upheld, the matter must, in all cases be dismissed," they said.
According to the justices, when the issue of law was heard in course of proceedings before the High Court it was found to be meritorious and the case was dismissed because it had been filed out of time.
"That way, it was rendered impossible for the trial court to embark on determining issues of fact in a case which had just been dismissed," they said.
The appellants, Ally Rashid and 534 others were employees of Sungura Textile Mills Limited in various capacities up to 1990 and 1991 when they were terminated.
Being aggrieved by the lay off from their respective employments, they preferred Trade Dispute before the Industrial Court of Tanzania, claiming a total of 325,560,400/60 in 1992. According to them, they obtained a decree in their favour for that amount.
It is not clear why that judgment was not executed soon after it was pronounced, but nonetheless 13 years later, that is, in the year 2005, the appellants filed the suit in the High Court of Tanzania at Dar es Salaam claiming the same amount together with interests and costs of the suit.
Three preliminary objections were raised against the suit, but two of them were dropped except the one based on time limitation.