Aloice Massawe vs M/S Y.C. Dave (Civil Appeal No. 7 of 2000) [2000] TZHC 368 (20 October 2000)

IN THE HIGH C0UR OF TANZMTIA AT ,ARUSHA. Jr CIVIL 4PPAL NO. 7 OF 2000 (Originating ARUSHARM'S Court ployment Cause No799) .ALOICE MASSAW .o. ,, ..o .o, ,00 e.c os. APPEILANT -Versus-. ri/s Y o _..c. , .. _ . PONDENT UDGMENT In &npinen.t. Cuse Noe 73/99 of the Resident Magi- strate's Court of Ahaz ti, respond.ett (defendant herein) through the services of Mr. Cad1ba lewned te raised reIiz.ari points of obection to wit:- "A. The plaintiff is x,xec.ltded bring the present suit by virtu! of Order 11 Rule 2(2) of the CPC, 1966as he omitted to sue the defe- ndnt in rp f th& .s4Pi4 el.aim in (ause No. 58 of 98 which was 4im,.sed on 916/9.. eO.qo...00 00000000oo0000 000000 The plaint is bad in law as the xesponeIit &ipz not exist since 19.1201995 and. fo.r that ean the pre5en.t auLt c.arinot survive. The plaintiff is not entitled in law for the benefit of severance allowance • Allowance as he himself terminated his services without any justification'. . In his Ruling dated 15/2/2000 the learned Resident Magistrate upheld Mr. Chadha on the first two preliminary .. • 0/2 ... ............................ /4

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• 2 - points of objection. Afor the 3rd point, the Magistrate opined and held that the same was already resolved by his answer to the first and second objéôtions i.e0 Having held that the claim was supposed to featui'e in the earlier suit and also that the severance allowance could not be claimed against a -non-éxitent party, then it wanot necessary for him to determine whethr.or not seVe±'ancea1lowancewas in the cictUnstances. The pe'ition of apeal is a recapitulation of what was earlier raised àn& ruled upon by the.Rosiaent Il agi s trat e c s Court0 : In essence, the appellanb i saying that thea le r ned Resident Mägistra erred in law in his findings and
• oonclusions on the above priminax'y points of objection0 ;0000Hence there'wi]l be no need in reproducing herethe three points canvassed in the petition of appeal. There was, and indeed there is, ho serious dispute that the appellant had earlier filed Employment Cause No0 58/98 With the Resident Magistrate's Court of Arusha which on 9/6/99. In that Employment Cause, the 0 • • cause of action was simliar to the one in the same Co urt! s Employment Cause No.73/99 (the subject of this appeal) i.e the obligation of an employer to an employee on termination or ceasure of employment. If so, the learned. Resident Magi'. strate cannot be faulted in sustaining Mr. Chadha that the appellant was precluded from filing Employment Cause No0 73/99 by virturé of the clear and unambiguous p rorisi ons of Order II Rule 2(2) of The divil Prodedue,CoeL966.0 0 , • 0 0 0 0 0

Again, there was no serious dispute that the appe- llant's actual employer no longer exists0 If so, again the learned Resident Magistrate cannot be faulted for hol- ding that no action could lie against a non-existent party or entity0 The logic for holding so is simple i.e. it might be difficult to execute a decree against a non-existent party. As for the third ground of appeal, I propose to adopt the reasoning of the learned Resident Magistrste and hence there will be nothing useful for me to add on the point0 The appeal is dismissed with costs. J. H. MSOFFE JUDGE 20/10/2000 Delivered this 20th day of October, 2000 in the presence of the appellant and 1 1' , Ir0 Chàdha for the respondent0 J. H. MS0FF JUDG] 20/10/2000 I hereby certify this to be a true copy of - the Original. DISTRICi REGITRAR ARUSHA