Mathias Rweyemamu vs General Manager Kagera, Cooperative Union 1990 Ltd. (Civil Appeal No. 55 of 2008) [2014] TZCA 2408 (17 April 2014)

IN THE CO U RT OF A P P E A L OF T A N Z A N IA AT P A R ES SALAAM KELEO, 3.A., O RIYO , 3.A., Arid 3UM A, 3 J U C IV IL A P P E A L NO. 55 OF 2008, MATHIAS RWEYEMAMU ...................... ........ A P P E LLA N T V ER SU S THE G E N E R A L M A N A G E R KAGERA, C O O PER ATIV E U N IO N 1990 LTD ......... .......... RESPO N D EN T (A p peal a g a in s t th e Riding and O rd e r o f th e H igh C o u rt o f T a n za n ia a t B u k o b a ) f lu a n d a , 3 .) d a te d 2 nd d a y o f A p ril, 2 0 0 7 in C iv il C ase no. 2 o f 2 0 0 4 JUDGMENT OF THE CO U R T Date:4th & I7 lh April, 2014 3UM A, J.A.: This appeal revolves around the question whether the appellant, MATHIAS RWEYEMAMU, was required to obtain leave before he could file his second suit in the High Court, on the same cause of action over which he had eariier based his first suit in the district court. The respondent, General Manager, Kagera Cooperative Union (1990) Ltd insists that Order II rule 2 (3) of the Civil Procedure Code, Cap. 33

obliged the appellant to'obtain the leave of the High Court, which he did not. The background to this appeal traces back to 1st June, 1998 when the respondent offered to employ the appellant as a Legal Officer of the Cooperative Union. The Appellant was first engaged on probation terms for six months. Unfortunately for the appellant, his appointment was not confirmed because on 27th October, 1999 the respondent terminated his employment. Aggrieved by this turn of events, the appellant filed two suits against the respondent. He filed his first suit, Civil Case No. 3 of 2000, in the District Court of Bukoba. Amongst his claims in this first suit, the appellant included (i) payment in lie u of annua! leave, (ii) unpaid subsistence and repatriation allowances and one month's salary in lieu of notice. The respondent did not enter an appearance to defend this suit. On 28th April, 2000 the district court granted the appellant the judgment he sought which awarded him a total of shs. 9,469,673/=. It was four years later on 2n d August, 2004 when the appellant lodged his second suit in the

High Court of Tanzania at Bukoba. In this second suit, Civil Case No. 2 of 2004, the appellant asked the High Court to declare that the termination of his employment to be not only wrongful, but also amounting to a breach of the contract of employment. For that breach the appellant asked to be paid shs. 300,000,000/= as general damages. He also wanted to be paid specific damages totalling shs. 156,525,320/= arising from his unpaid employment benefits. Unlike in the first suit where he failed to enter any defence, this second time around, the respondent filed its written statement of defence which was accompanied with a notice of Preliminary Objection against the second suit. The objection challenged the competence of the suit before the High Court on the ground that: (i) the suit was bad in so far as it contravened the provisions of Order II Rule 2 of the Civil Procedure Code, Cap. 33; and (ii) the plaint was bad because it lacked requisite particulars on the value of the subject matter.

While dealing with the objection contending the contravention of the provisions of Order II Rule 2 of CPC; Luanda, J. (as he then was) concluded that the claims in the first suit that was before the district court, and second suit that was before the High Court, were based on the same cause of action. He concluded that the appellant should not have filed his second suit without first applying and obtaining leave of the court envisaged under Rule 2 (3) of Order II. It was this conclusion which aggrieved the appellant, prompting him to bring this appeal containing the following three grounds of complaints:

1. That, the learned ju dge g rossly erred in law and fa ct to uphold the prelim inary objection th at the appellant relinquished the claim to bring the su it w ithin the ju risd ictio n o f the court and w ithout the leave o f the court. 2, That, the learned ju d g e grossly erred in law to rule out that the appellant ought to have sought the leave o f the

court which was n o t necessary as the subordinate court had declared th at [it] had no ju risd ictio n to adjudicate the issue o f term ination. 3. That the learned ju d g e grossly erred in law to rule out th at the p ia in t does n o t contain the statem ent o f value o f the subject m atter. When this appeal came before us for hearing, the appellant Mathias Rweyemamu, fended for himself, whereas Mr. Daimu Halfani, learned advocate appeared for the respondent. In respect of the first two grounds of appeal raised by the appellant on requirement for leave, Mr. Rweyemamu submitted that his Civil Case No. 4 of 2004 which he filed in the High Court to seek a declaration, is a distinct and independent cause of action which does not require the leave under Order II Rule 2 (3) of the CPC. He explained that the district court's Civil Case No. 3 of 2000 was initiated by Labour Officer to pursue a claim that is not related to the claims he later pursued in the High Court. Furthermore, the appellant pointed out, his second suit sought

the relief of declaratory orders of the High Court which he could not pursue through the Labour Officer and the district court. He also mentioned the specific damages he sought which are beyond the pecuniary jurisdiction of the district court. The appellant capped up his submissions by referring us to a number of decisions of the Court including David K sm u g ish a vs. Bukob Ltd [1994] T.L.R. 217 and KLM Royal Dutch A irlin e s vs, Jo se X a v ie r F e rre ira [1994] T.L.R. 231 which he insisted that they all support his contention that the second suit he filed in the High Court was distinct and did not require prior leave. Mr. Halfani explained why he supports the decision of the trial court to uphold two preliminary objections and dismiss the appellant's suit. He argued that the suit that was concluded earlier in the district court, and the second one he filed by a plaint in the High Court, both originate from termination of the appellant's employment. In this context, the learned advocate pointed out that the appellant seemed to have

agreed with his termination when he lodged his first suit in the district court to pursue his terminal benefits. Mr. Halfani wondered why, after appearing to agree with termination, the appellant would still fiie another suit in the High Court to challenge the termination of his employment. With regard to the decisions of this Court referred to us by the appellant, Mr. Halfani observed that these decisions do not support the appellant. He finally urged the Court to prevent the appellant from protracting disputes by dragging the respondent into endless lawsuits, He insisted that since in both suits the cause of action (termination) is the same and involves the same set of factual circumstances, the appellant was obliged to satisfy the leave requirement under Order II rule 2 (3) of CPC. We have considered the submissions and the decisions of the Court which the appellant and Mr. Halfani for the respondent presented before us. We propose to look at the scope of the necessity for leave under Order II Rule 2 (3) of the CPC by first reproducing this provision in its entirety:

O rd e r I I R u le 2 o f C PC : 2 .-(l) Every su it sh a ll include the w hole o f the claim which the p la in tiff is en titled to m ake in respect o f the cause o f action; b u t a p la in tiff m ay relinquish any portion o f h is claim in order to bring the su it w ithin the ju risd ictio n o f any court. (2) W here a p la in tiff om its to sue in respect of, o r intentionally relinquishes, any portion o f h is claim , he sh a ll not afterw ards sue in respect o f the portion so om itted o r relinquished. (3) A person en titled to m ore than one re lie f in respect o f the sam e cause o f action m ay sue fo r a ll o r any o f such reliefs; b u t if he om its, except with the leave o f the court, to sue fo r a ll such reliefs, he sh a ll n ot afterw ard sue fo r any re lie f so om itted. We think that the above cited sub-rule (1) of rule 2 underlies the basic principle of law to the effect that multiplicity of suits should be avoided where all such suits arise from a common cause of action and can be conveniently dealt with in a single suit. The provision is in other words designed to discourage would be plaintiffs from filing several suits if those suits arise from same cause of action. Despite this discouragement, this

provision still leaves room to plaintiffs to relinquish part of their claims in order to fit their suit within the jurisdiction of any court. The provision states: a p la in tiff may relinquish any portion o f his claim in order to bring the su it within the jurisdiction o f any court. Next, sub-rule (3) of rule 2 deals with a situation where a plaintiff who is entitled to more than one relief in respect of the same cause of action, omits to seek any relief in one court. The relevant sub-rule (3) of rule 2 provides: (3) A person e n title d to m ore th a n o n e r e lie f in respect o f the sam e ca u se o f a c tio n m ay sue fo r a ll or any o f such reliefs; but if he om its, except with the leave o f the court ; to sue fo r a ll such re lie fs h e sh a ll n o t afterw ard sue fo r any re lie f so om itted ' [Emphasis added]. If looked at closely, this provision sets down three pre-conditions which if not satisfied, may prevent a person who has already sought some reliefs in the first court, suing in another court for any relief he omitted to pursue in the first suit. The first pre-condition is to the effect that the second suit must be in respect of the same cause of action like that on

which the first suit was founded. For purposes of this appeal, the suit which the appellant filed in the district court must have been founded on the same cause of action like the suit he later filed in the High Court. The second pre-condition is entitlement to more than one relief from same cause of action. For our purpose, the appellant should show that he was entitled to reliefs he sought in the district court just as he was entitled to reliefs he pursued in the High Court. The third pre-condition is proof that the appellant filed his second suit in the High Court with prior leave of that second court. It is these three pre-conditions which shall guide our determination of this appeal. In so far as common cause of action is concerned, the trial Judge was in no doubt that the second suit which the appellant filed in the High Court was based on same cause of action as his first suit before the district court. We propose to explain why we respectfully agree with the trial Judge that indeed, the cause of action in the two suits is the same and revolve on the termination by the respondent, of the appellant's employment. Order VII Rule 1 of CPC obliges the plaintiffs who move the courts by suits, to

plead such particulars in their respective plaints, so as to disclose cause of action. The relevant Rule 1 of Order VII states: 1, The plaint s h a ll contain the following particulars- (a) the name o f the court in which the su it is brought; (b) the name, description and place o f residence o f the plaintiff; (c) the name, description and place o f residence o f the defendant, so far as they can be ascertained; (d) where the p la in tiff or the defendant is a m inor or a person o f unsound mind, a statem ent to that effect; (e) the fa cts co n stitu tin g the cause o f a ctio n an d w hen it aro se; [Emphasis provided]. The Court in John M. Byombalsrwa v Agency Maritim e Internationale (Tanzania) LTD 1983 TLR 1 had the occasion to discuss the scope of the words V cause o f action" appearing in Rule 1 of Order VII. The Court later on followed up on this scope of "cause of action" in 1. Anthony Leonard Msanze, 2. Justine Elias Msanze vs. 1. Juliana Elias Msanze, 2. Ruwaichi John Kereth 3. Onesmo Anderson Mbise, Civil Appeal No. 76 of 2012 {unreported) where the Court stated: li

"...We laid down relevant legal principles on cause o f action In JOHN M. BYOMBALIRWA v AGENCY MARITIME INTERNATIONALE (supra). Through this decision, we first pointed out that although the expression "cause o f action" has not been defined under the C ivil Procedure Code, but that expression sim ply means essential facts which a p la in tiff in a su it has to piead and later prove by evidence if he wants to succeed in the su it Secondly, we laid down that for purposes o f deciding whether or not a piaint discloses a cause o f action; courts should NOT go far into written statem ents o f defence or into replies to the written statements o f defence. But they should discover a cause o f action by looking only at the plaint Thirdly, we also said that where the piaint does not disclose a ■cause o f action, the remedy is NOT for the court to dism iss the Piaint, but to reject i t " It is clear to us that in the suit which the appellant filed in the District Court of Bukoba, the facts constituting his cause of action are disclosed in the 3rd and 4tn paragraphs of his piaint, stating: 3. That the P la in tiff was employed by the defendant as legal secretary from 1st June, 1998 to 3(fh October, 1999 when his employment was term inated by the defendant

4. That the P la in tiff claim s from the defendant sum o f Tshs: 9,469,673,00 as per attached annexture "B". ... With regard to his second suit in the High Court, termination of the appellant's employment constitutes a cause of action disclosed in paragraphs 4, 5 and 6 of his plaint:-
5. That on 1st day o f June, 1998 the p la in tiff entered into a permanent employment contract o f service with the defendant and the contents o f paragraph u b " o f terms and conditions o f employment contract expressly provided for a term o f six months probation period before confirm ation and which ended no (sic) 3Cfh November 1998....
6. That the defendant breached the term s o f contract o f service against the p la in tiff for not confirm ing the p la in tiff once the p la in tiff had successfully com plete (s ic ) the probation period without any warning, reprim and o r a written notice fo r extension o fprobation period,
7. That the defendant term inating the contract service (sic ) o f the p la in tiff without any reasonable and probable cause and without giving the p la in tiff an opportunity■o f being

heard amount to wrongful termination o f employment to the plaintiff. ..... Although in his submissions the appellant has stoutly tried to persuade the Court that the two suits do not share a common cause of action, we are not so persuaded. In fact, in his own submissions the appellant stated that he first went to the Labour Officer to pray for the reliefs. The Labour Officer then conveyed his claims to the district court by way of a letter. It was this letter which the district court transformed into a plaint. The appellant is correct to observe that the reliefs he obtained in the district court through the avenue of the Labour Officer could not be pursued in other courts. This, in our opinion does not mean there was no commonality of cause of action between what was dealt with by the district court and later on by the High Court. What is clear to us is that the appellant was more concerned in getting more reliefs in the High Court than he had obtained from the district court. To that end, the appellant was

obliged to seek the leave of the High Court before proceeding with a second suit based on the same cause of action as his first suit. As we said earlier, the object of Order II Rule 2 (2) and (3) of the CPC is to prevent plaintiffs from overwhelming defendants with multiplicity of suits arising from common cause of action. We hasten to reiterate that these provisions also give room to the plaintiffs who couid not pursue certain reliefs arising from same cause of action in their first suit, to first seek leave of the court before they can file fresh suits to pursue reliefs they could not have claimed in the first suit. It is during the application for leave when the second court is seized with an opportunity to verify if the plaintiff concerned has advanced any good reason to justify the filing of the second suit. We can see no reason to fault the conclusion reached by the trial Judge that the suits the appellant filed in the district court and later in the High Court arose from a common cause of action. Secondly, we

agree with the trial Judge that through the High Court Civil Case No, 2 of 2004 the appellant sought reliefs which he could not obtain in the district court. The suit which the appellant filed in the High Court of Tanzania at Bukoba is bad in law for failure to comply with the provisions of Order II Rule 2 (3) of the CPC requiring leave. This conclusion alone is sufficient to dispose of this appeal. For the foregoing reasons, we do not see merit in this appeal. We accordingly dismiss the appeal with costs. DATED at O A R ES S A LA A M this 08th day of April, 2014. JU STICE OF APPEAL JU STICE OF A PPEAL I certify that this is a true copy of the original. COURT OF APEPAL