TANZANIA PORTLAND CEMENT CO LTD v MINISTER FOR LABOUR 1996 TLR 303 (HC)

 TANZANIA PORTLAND CEMENT CO LTD v MINISTER FOR LABOUR 1996 TLR 303 (HC)

Court High Court of Tanzania - Dar es Salaam

Judge Bubeshi J

D

MISC CIVIL CAUSE NO 107 OF 1994 E

Flynote

Civil Practice and Procedure - Parties - Joinder - Application for prerogative orders of

certiorari and mandamus against Minister for Labour arising from reinstatement by

Conciliation Board of employees whose services had been terminated - Application by

employees to be joined as F co-respondents in application for prerogative orders

unnecessary and dismissed

-Headnote

The original applicant, Tanzania Portland Cement Co Ltd, filed an application for

prerogative orders of certiorari and mandamus against the Minister for Labour. The

application arose from the reinstatement by the Conciliation Board of 17 employees

G whose services had been terminated by the original applicant. In the present

application the 17 employees sought to be joined as co-respondents in the original

application against the Minister. The original applicant opposed the application on a

number of bases including one that the present applicants' presence in the

proceedings was unnecessary. H

Held:

(i) To join the present applicants as co-respondents would not affect the

decision of the main application: the application was not directed at them as

employees but was directed against the Minister's decision. Their presence was

accordingly unnecessary in the proceedings. I

Case Information

Application dismissed.

1996 TLR p304

Cases referred to: A

1. Naiman Moiro v Naicejlet Zablon [1980] TLR 274

2. Tanzania Portland Cement Ltd v Mwihechi and Anor Misc Civil Cause

No 14 of 1994 (unreported)

Mr Mhina for the applicant. B

Mr Mrugaruga for the respondent.

[zJDz]Judgment

Bubeshi J:

On 4 October 1994 Messrs Tanzania Portland Cement Company Ltd hereinafter to be

known as the original applicant, filed through their counsel, Mr Mhina of the Legal C

Consultancy Services Committee University of Dar es Salaam, an application for

prerogative orders of certiorari and mandamus against the Minister for Labour. This

application was supported by the affidavit of one Gervas Mazukulu Mbonimpa, an D

administrative officer in the original applicant's company.

Before this application was heard the second applicants Pius Sangali and 16 others

filed an application to have their names added as the second respondents in the first

application. It is not in dispute that these second applicants were formerly employees

of E the original applicant and had their services terminated by their employer

effective 13 January 1993. Subsequently the Conciliation Board ordered the applicant

to reinstate them. As the first applicant was not happy with that decision referred the

matter to the Minister, who also confirmed the Board's decision. Hence the

application by the first F application for prerogative orders of certiorari and

mandamus.

Whilst that application was yet to be heard, the second applicants who were formerly

employees of the first applicants filed an application to have their names joined as G

second respondents-the first respondent is of course the Minister for Labour. The

original applicants have forcefully hoisted this application.

In their submission the new applicants have annexed to their application an affidavit

by one Pius Sangali, the relevant paragraphs read as follows: H

`2. That I am authorised by my fellow employees above to depose the facts

of this case to which I am very conversant with.

4. That Pius Sangali and 15 others mentioned in para 3 of Mbonimpa's

affidavit are the very I people mentioned in para 1 of this affidavit.

1996 TLR p305

BUBESHI J

A 5. That the relief sought in the application of Tanzania Portland Cement

Co Ltd arises out of the alleged termination or dismissal of Pius Sangali and 15 others

and there is common questions of law and fact which arise between the three parties.

6. That we are interested as to all the relief claimed in the application

against the Minister for Labour. B

7. That in the circumstances, our presence in court as second respondents

is necessary in order to enable the Court to effectually and completely adjudicate

upon and settle all the questions involved in the application by Tanzania Portland

Cement Co Ltd.' C

This application has been preferred under s 95, Order 1 or 3, 4, 5, 8, 10(2), (4) of the

Civil Procedure Code 1966.

At the outset the original applicants have raised several preliminary objections. It may

be D pertinent to state from here. Mr Mhina learned counsel for the original

applicants:

(a) That Mr Mrugaruga an officer in the office of the Labour Commissioner

has no corus standi in this present application. That the Labour Commissioner E

appearance is restricted in matters of appeal under the Employment Ordinance. Mr

Mhina also attacked the presence of Mr Mrugaruga contending that there has been no

satisfactory evidence of due authorisation from the F instant applicants. And as a

result the belated power of attorney that was filed in court ex-post facto cannot cure

the irregularity of incompetence as it was defective, it had no stamp duty and also the

applicants themselves do normally attend court.

(b) The application by the instant applicants is improperly before this court

for want G of payment of court fees. The instant applicants have relied on s 143 of

the Employment Ordinance as exempting them from payment of court fees. Mr

Mhina for the original applicants is contending that since the instant applicants

chamber summons was brought under the provisions of the Civil Procedure H Code

the reliance of exemption under s 143 of the Employment Ordinance was out of place.

Third objection is grounded on the view that there is no common question of law or

fact that could arise if separate proceedings were brought against the Minister and the

I instant applicants, in terms of Order 1 Rule 3 of the Civil Procedure Code 1966.

According to Mr

1996 TLR p306

BUBESHI J

Mhina the instant applicants have made a bare allegation in para 5 of their affidavit

but A questions of fact do not normally arise in proceedings respecting prerogative

orders. In addition thereto these common questions of law as would affect both the

Minister and the instant applicants have not been spelt out. B

The fourth objection raised by the original applicants is that the orders of certiorari

and mandamus which the original applicants have applied for are in the nature of

public law remedies. They do not lie against individuals as such but against public

bodies and officers exercising statutory fractions. C

The fifth objection raised by the original applicants is the instant applicants cannot at

this juncture seek to be joined as co-respondents when leave for application for orders

of mandamus and certiorari was granted by this court to the original applicant on 15

D September 1994. And it was granted on the understanding that there are mable

issues of law engaging the original applicant and the Minister. The instant applicants

are strangers to the said leave. Hence the instant applicants endeavour to join the

proceedings is belated, an after though incompetent and with due respect a product of

misguided advice. E

The seventh objection raised by the original applicants challenged the sworn affidavit

by Pius Sangali particularly paras 5, 6 and 7 thereto as containing the kind of matters

that a layman can be expected to have personal knowledge as claimed in para 9 of the

affidavit. F

All in all the original applicants pray that this court dismiss the instant applicants

with costs.

In their replies the instant application have replied to the preliminary objections as

under.

It is their submission that there are common questions of law and facts which arise G

between the three parties following the termination of the applicants Pius Sangali and

16 others. That the applicants believe that their presence in court as co-respondents is

necessary in order to enable the court to effectually and completely adjudicate upon

and settle all the questions involved in the application by Tanzania Portland Cement

Co Ltd. H The applicants contend that Mr Mrugaruga acting through the Labour

Commissioner is duly authorised to represent the employees in court. They place

reliance on the provisions of ss 8 and 141(1) of Employment Ordinance Cap 366 as

amended by Act No 5 of 1969. Also under s 95, Ord 111 Rule 1, 2(a) and 6(2) of the

CPC 1966. That Mr I Mrugaruga is holding the powers of attorney of Pius Sangali

and 16 others and that a

1996 TLR p307

BUBESHI J

certified copy of the power of attorney was filed in court as required by Order 111

Rule A 6(2) of the Civil Procedure Code 1966. The stamp duty was duly affixed to

the instrument that was registered on 31 January 1995 by the Registrar of Titles.

Mr Mrugaruga has sought to distinguish their case with the case of Naiman Moiro v

B Naicejlet Zablon (1) in that of the 17 donors of powers of attorneys not all are

present in court. Therefore Mr Mrugaruga is presenting the instant applicants who

are not in court.

Mr Mrugaruga is also challenging the application for orders of certiorari and

mandamus on the basis that it is immature and improperly brought before the High

Court because C the differences, questions or disputes arising from summary

dismissal had first to pass through various stages before they can be entertained by the

court.

At the very outset I wish to make it clear to the parties and in particular the instant D

applicants that I am at this moment and time dealing with the preliminary objections

as raised by the original applicants. The outcome of this shall determine whether the

application for the prerogative orders shall be heard on merits or not. In that event I

shall not attempt to answer Mr Mrugaruga's submissions on the merits of the

application by the original applicants. E

Likewise Mr Mrugaruga submitted that it was their sincere belief that the instant

applicants were exempted from payment of court fees in terms of s 143 of

Employment Order Cap 366.

As explained earlier in my ruling the original applicant M/S Tanzania Portland

Cement Co F Ltd had through their advocate Mr Mhina applied for and was granted

leave to apply for prerogative orders of certiorari and mandamus. And indeed it was

granted on the understanding that there are triable issues of law engaging the original

applicants and the Minister. And indeed as submitted by Mr Mhina the instant

applicants are strangers G to that leave and can it be said that there exist triable

issues of law concerning the original applicants and the instant applicants? The

instant applicants contend that there are and that para 5 of their affidavit bears them

out. Paragraph 5 of Pius Sangali's affidavit filed in this court in support of an

application to add the names of the second H defendant reads:

`5.That the relief sought in the application of Tanzania Portland Cement Co

Ltd arises out of the alleged termination or dismissal of Pius Sangali and 15 others and

there is common questions of I law and fact which arise between the three parties.'

1996 TLR p308

BUBESHI J

I have had time to study their written submission but could not stick a finger on the

A same. In the same vein I would uphold the original applicants last preliminary

objection that the deponent was duly bound to disclose his legal source of information

regarding his evokement in para 5. Non-observation of such rules may lead the Court

to declare an B affidavit defective and hence no legal consequence.

Prerogative orders are public remedies touching upon questions of law. In this

particular case the original applicants have applied for the prerogative orders of

certiorari and mandamus in relation to the decision of the Minister for Labour dated

27 June 1994 C which enjoins the original applicant to re-instate the instant

applicants. In my humble view the application filed by the original application

challenges the Minister's decision to re-instate the instant applicants. Both the relief

which are being sought and the grounds D on which the said reliefs are also sought

would ultimately affect the instant applicants in one way or the other. One

respondent here may be the Minister for Labour who is no doubt a public body for

the purposes of this application. And orders sought for cannot be directed at the

instant applicants but the public body in this case the Minister in relation E to his

decision to reinstate the instant applicants. Can it seriously be argued that to join

them as co-respondent in this application would affect the decision of the main

application? To that question my considered view would be definitely no. And I say

so F because the application is not directed at them as employees but the application

is so directed against the Minister's decision. Hence their presence in court as corespondents

is not necessary that they will be affected by the decision of the

application once it has been determined. In this regard I would hold that the decision

G reached by my brother Judge Kyando in Tanzania Portland Cement Co Ltd v

Mwihechi and Minister for Labour (2) has my full support. That application is almost

on all forms with this instant application save that in the former the applicants had

joined Mwihechi a former employee as a first respondent, whereas in the latter

application the employees H are praying to be joined as co-respondents.

There were other preliminary points which had been raised by the original

applicants. Such objections lay in the field of non-payment of the requisite court fees,

Mr Mrugaruga appearance on behalf of the applicants including the power of attorney

assigned to him I by the applicants. It was Mr Mrugaruga's submission that:

1996 TLR p309

A `the employer does not like to see the face of Mr Mrugaruga in this case and

that the applicants are prepared to go it alone or engage another representative if the

Court so orders.'

Before I conclude I think it is the duty of this Court to put this matter straight with

due respect to Mr Mrugaruga. I did not get the impression that the original applicants

did not B wish him to appear in this case. And Mr Mrugaruga ascertains that his

appearance in this case should not be the reason for dismissing the application, is in

my humble view it should not. I am satisfied that each party has submitted some valid

arguments to which I am highly indebted to. C

However, since I am inclined to uphold the preliminary objections raised by the

original applicants I have not deemed it necessary to recount each and every

objection. Suffice it to say I have after giving this matter a serious thought opined that

the instant applicants presence as co-respondents is not necessary and in that regard I

would dismiss their D application with costs.

1996 TLR p309

E