CHRISTOPHER GASPER AND OTHERS v TANZANIA HARBOURS AUTHORITY 1997 TLR 301 (HC)

 

CHRISTOPHER GASPER AND OTHERS v TANZANIA HARBOURS AUTHORITY 1997 TLR 301 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

D

MISCELLANEOUS CIVIL CAUSE 36 OF 1996

17 November 1997 E

Flynote

Civil Practice and Procedure - Courts - Jurisdiction - Employment law - Redundancy

- Parties free to go to Industrial Court or ordinary courts where issues of redundancy

concerned

Civil Practice and Procedure - Parties - Representative suits - Proper notice required

in terms of Order 1 Rule 8 F

-Headnote

The respondent raised two preliminary objections to the applicants' suit in the High

Court, firstly that it was a labour dispute as covered by the Security of Employment

Act Cap 574 and the Inductrial G Court Act 1967 and the ordinary courts were

therefore barred from hearing such claims by virtue of ss 28 and 42 of the Industrial

Court Act, and secondly that the plaint was bad in law in that the court should have

issued public notices of institution of the suit to relevant persons and that this had not

been done.

Held: H

(i) The plaintiffs' complaint was against what they termed `retrenchment':

this was not similar to termination or dismissal but was synonymous with

redundancy. There was no specific provision which placed the issue of redundancy

under the Industrial Court Act and therefore employees were free to go to the

ordinary courts or the Industrial Court where issues of redundancies or

retrenchments were concerned; I

1997 TLR p302

A (ii) The failure to comply with Order 1 Rule 8 was fatal: although a

representative suit had been instituted notice of the institution of the suit had to be

given to all persons having an interest in the suit.

Case Information

Second preliminary objection upheld.

B Cases referred to:

1. Kitundu Sisal Estates v Shingo [1970] EA 387

2. Mohamed v General manager Kunduchi HCD No 43

3. Mohamed Kondo & 11 others v Attorney General Civil Appeal No 24 of

1981 (unreported)

C Dr Mwakyembe for the plaintiffs.

Lyimo for the defendant.

[zJDz]Judgment

Bubeshi J:

D In course of hearing this suit, Mr Lyimo learned counsel for the defendants has

raised two preliminary objections on law. First that this being a labour dispute, it is

covered by the Security of Employment Act, Cap 574 and Industrial Court Act, 1967

as amended by Act 2 of 1993. Mr Lyimo has argued that redundancy is covered under

s 6(1)(g)8 of Caps 574 and ordinary courts are E therefore barred to hear such claims

by virtue ss 28 and 42 of same Act. Similarly that, in terms of s 40(1) of the Industrial

Court Act, such claims cannot be heard by ordinary courts. Mr Lyimo therefore is

questioning the jurisdiction of this court to hear such a matter. The court was referred

to F the case of Kitundu Sisal Estates v Shing (1) and Mohamed v General Manager

Kunduchi (2). Mr Lyimo submitted that the appropriate procedure has been lain

down under s 4 read together with ss 1 and 2 of the Employment Ordinance.

On the issue of redundancy he submitted that the same is not one of the contractual

matters; citing G as an authority in point the decision by the Court of Appeal in the

case of Mohamed Kondo & 11 Others v Attorney General (3). Secondly Mr Lyimo

attacked the plaint for being bad in law in that it contravenes Ord 6 Rule 15; that the

rectification is not dated and neither is it shown where it was verified. Further he

complained that Order 1 Rule 8 was not fully complied with by the plaintiff in that

H after leave was granted, the court should have issued public notices of institution

of the suit to all such persons. He submitted that no such publication has been done

and yet the number of the persons affected is about one thousand seven hundred

people . Mr Lyimo submitted that in I absence of a proper notice and its service, the

essence of Ord 1 Rule 8 is

1997 TLR p303

BUBESHI J

defeated and some one thousand interested persons have been left out. He prayed for

the plaint to A be struck out.

Dr Mwakyembe for the plaintiff did not agree. He submitted that the matter before

this court is purely contractual -- that it concerns a purported agreement between

plaintiff and defendant and that there is no reliance on the Security of Employment

Act nor the Employment Ordinance. B

Dr Mwakyembe contended that it was erroneous to suggest that retrenchment is

synonymous with termination or dismissal, which fall under Cap 574. He stressed

that retrenchment is a contractual matter and it is based on an agreement between

employer and employee. C

On verification Dr Mwakyembe was of the view that in event there were mistakes,

this could be corrected -- Rule 17 of Ord 8. As to the public notice or publication Dr

Mwakyembe submitted that leave of court and been obtained to file a representative

suit and a list of those interested has been D accepted by the court therefore public

notice/publication has been dispensed with. He also added that this court has the

power to order parties to be joined or struck out -- Ord 1 Rules (9) and (10). And were

fact of a misjoinder of parties cannot be a reason for the denial of ones rights. E

In reply Mr Lyimo reiterated that the plaintiffs have not fully complied with Rule 8

of Ord 1 which is mandatory, and no leave to amend the plaint has been sought. Mr

Lyimo attacked the list attached to the plaint in that it contains names which are not

counter-signed. F

Mr Lyimo was of the view that since there are out there some one thousand workers

interested in this matter a published notice will be material in this regard.

The issues before this court are two, namely, whether this court has jurisdiction and if

so the G plaintiff's plaint is properly verified and that the provisions of Ord 1 Rule 8

have been complied with.

I have had time to peruse the plaint -- and the plaintiff's complaint is against what

they prefer to call as retrenchment I do not think this is similar to termination or

dismissal. In my view retrenchment is synonymous with redundancy. The issue of

redundancy may fall under the Industrial Court Act, H although there is no specific

provision that places the issue of redundancy under the Industrial Court Act and

therefore employees are free to go to ordinary courts or the Industrial Court where

issues of redundancies or retrenchment are concerned. I

1997 TLR p304

BUBESHI J

A I must at this juncture state that the cited authorities by Mr Lyimo dealt with

issues of summary dismissal while here the issue is retrenchment and the procedure

adopted by the employer Tanzania Harbours Authority. These employees were not

dismissed but they were retrenched. The two situations are quite different and I find

the cases quoted of little help, if any, to the matter at hand.

B On the defective plaint and lack of public notice. Order 1 Rule (1) is clear, it

states:

`Where there are numerous persons having the same interest in one suit, one

or more of such persons may, with C the permission of the court sue or be sued . . .

on behalf of . . . all persons interested. But the court shall in such case give, at the

plaintiff's expense, notice of the institution of the suit to all such persons either by

personal service or, where from the number of persons or any other cause such

service is not reasonably practicable, by public D advertisement, as the court in each

case may direct' (emphasis mine)

The essence of this rule is therefore that the `identities of the other persons interested

in this claim must be known to the court, although a representative suit is instituted

on their behalf. Necessary E because the court is under duty to give notice of the

institution of the suit to all such persons and secondly, the doctrine of res judicata

applies all such persons' as per Samatta J, as he then was in (PC) Civil Appeal No 74 of

1985.

F It is apparent therefore that failure to comply with Rule 8 in whole in fatal despite

the fact that leave was granted. The attached list does not help the plaintiff in that it

cannot waive the requirement of Rule 8 cited above.

In premises I uphold the second preliminary objection raised by the defendant. In the

event the plaintiff option to pursue this claim in this court, it is mandatory that Rule 8

be fully complied with. G Claim dismissed with costs to the defendant.

1997 TLR p305

A