Selemani Mohamed and Another vs Attorney General and Others (Civil Case No. 269 of 1997) [1998] TZHC 2183 (6 November 1998)

, . i ' IN THR HIGH COURT OF TANiANIA AT __ DAR ES SAT,AAM CIVIL CASE NO. 269 OF 1997

1. SELEMANT. MOHAMED
2. KEATH MF.LELE ....... . . ..... PT,ATNTTFF VF.RSUS ATTORNEY GRNERAL & OTHERS ........ DRFF.NDANT R_U r. ___ I N. G KALEGEYA, J. Selemani Mohamed and Keath Malel.e (1st and 2nd Plaintiffs respectively) sued five defendants (The Industrial Court of Tanzania, The Minister for Labour and Yo11th Development, The Labour Commissioner~ The Tanzania Telecnmm11nications Co. Ltd, ~nd· The Attorney General as 1st to 5th defendants respectively) praying for,·•among -0thers, "(1) A declaration that the dec:i.sjons ano awards of the Industrial Court of Tanzania are null and void and of no effect in law; that the plaintiffs are still in the employment of the 4th Defendant entitled to wages and fringe henefits, and (2) An order that a report by the Tnriust:r:ir17 Court: bA made to the M.inister for lnhour as required by section 9 A (l) of the Permanent Labour Tribunal (?) Act No. 41 of 1967 as amended by section 4 of the Permanent Tribunal (Amendment) Act No. 18 of 1977 and that the Minister make a decisi.on in ielation to the matters contained in the sRid rPport of the Industrial Court under secti.on 98(1) of the Act in question". Responding to these claims the Defendants have raised preliminary objections for which it was ordered that they be arg11ed by way of written submissions. Mr. Salula SSA, nppeared for 1st, 2nd and 5th Defendants while Miss Bayona nppeared for the fourt.h Defendant. Mr. Taslima appeared for the plaintiff. While the l ........

defence acted in time in compliance with the Rchedu]e of submissions Mr. Taslima could not effect A reply as the defence's submission was not availed to him in time. He promptly applierl for extension of time, which prayer waR gr,rnt-.ea but again which ' was not complied with. Mr. Taslima for plaintiff was S\1ppnsed to effect his submission by 22\10\98 while Defendants were to file a reply if any by 28\10\98 but till now (29\10\98), when Tam composing this ruling, the former has not Acted. I decided to proceed on the basis of submissions by defendants alone. Mr. Salula, Senior State Attorney, for 1.st, 2nd and 5th Defendants (although in his written suhm.is:=d.nn_. possibly .in- advertantly, indicated the 5th Defendant as the 4th Defendant) raised and argued on 2 preliminary points: that, (a) there is no cause of action (b) If there is, it. is t:ime h;:3rred. Mr. Salula argued that i.f 1".hRre is r1ny c;:iuse of r1r:t ion i 1". started in i986 when the plaintiffs' employment with the 4th Defendant was terminated, and that that heing the case they co11ld not institute a case in 1997 for that wnuld he in violation of item 7 in part 1 of the 1st schedule to the L;:iw of r.imit;:it:i.on Act, No. 10 of 1971 which fixes time limit in causes founde<i on contract to 6 years which period elapsed in 1992. As regards the argument-on cause of action, Mr. Salula, SSA, insisted that the Plaintiffs being aggrieved by "decisions ;ind awards" of the Industrial court they can impugned that co11rt's decision only hy way of suit: he relied on s. 27 (1) (c) of the Industrial Court. of Tanzania Act, 1967. As for Miss Bayona for the 4th Defendant, joining hands wj_th Mr. Salula, she contented that there is no c;:iuse of r1c:t. ion disclosed by the plaint as against 4th Defendant for the s;:ijd plaint does not disclose which rights were violated or when the cause of action arose thus violating 0. VTT, R11le 1(c) CPC; th;:it the said plaint is not concise; it offends O.VTI_. Rl1le 11 CPC by 2

... engaging in evidence; that it is not signed by drawer; that it violates O.VII, Rule 1(c) CPC for failure to provide namA, description and place of residence of the 4th Defendant; that it does not contain facts showing that this court has j11risdiction thus offending O.VII, Rule 1(f) and that the matter is Res judicata as the same had already been determined by the consent of the parties on 1;1.\6\92 in Trade DisputA No. ?.3 of 1988\9 . . We should now turn to the analysis of the mentjnned objections. However, before doing that, in order to appreciate the issues it is pertinent that the p]ajnt as presentAd be revisited. The plaint shows that the plaintiffs who were employAes of the Tanzania Telecommunications Co. Ltd (4th Defendant) were declared redundant pn 30\6\86. They and others, dissatisfied with this redundancy complained to the Secretary General of ,JtJWATA now OTTU requesting for the intervention of t.he Lnbour Comm i_ss ioner (3rd Defendant) under s. 9A {:l) of the Permanent Trihunr1J. Act. No. 41 of 1967 as amended hy section 4 of the Permanent 'J'rihuna) (Amendment) Act No. 18 of 1977. The 3rd Defendant inquired into the issue as a trade Dispute And with the approval of the Minister (2nd Defendant) referred the matter to the Tndt1strial Court (1st Defendant). 'J'he 1st Defendant :for reasons 11ndi.sclosea sat on the matter to-dr1te. The 1st Defendant was supposed to inquire into the matter And report thereon to the 2nd Defendant for decision as pe~ the provisions of 9A (1) for further act.inn as per s. 9 B(l) o( Act. 41 of 1967 as amended by Act 1.8 of 1977. Meanwhile negotitions between OTTU for plaintiffs and the 4th Defendant (although circumstances leading to this state of affairs are not clear from the materials at hand) led to r1 voluntary agreement which prescribed for the reinstatement of the plaintiffs and others to their employment. That agreement. di.d 3

not follow the pr.escr j hAd procedurA ;:H, pr.Asc:r .i hAd under s. 9 (1)(2)(3) of Act 41 of 1Q67 as amAndeo by Act 5 of 1QR (of going through the Zona 1 La hour Officer.. T.,;:ihollr Commi.ss i.onP.r .. \ Minister) and instead the agreement was forw;:iraed strajght to the Industrial Cour.t. which duly ngist.erecl ·it r1s an r1wanl on 11\06\92. The plaintiffs did not end there hut pursue<l further thA undecided question of the Trade Dispute hy r;:ds.ing inquiries w.i t.h the Minister who instructed 3rd Defendr1nt to SfHk ;:idvice from t·hP. Industrial co11rt in accordance with the provisions of sec:tion 10 . ,. which he did in March, 1995. It would seem the Indust.rial co11rt proceeded to makP. an inqui.r.y and confjr.med thA award in August 1.995. Jtis from the totality of all these fators that the plaintiffs have lodged their cr1se praying ;:is alrAady indicated above. In the plaint thAy r1J.JAge that non compliance with the provisions of Act 41. of 1967 as amended from ti.me to Lime occasioned losses to l st. p 1.;:i i.nt if f in terms of f ;:i i.111rP. to hA reinstated in his former employment hence fail11re tn get the wages and fringe benefits amounting to shs. 15,655,87?.; 98,400/= being 10% of repatiation costs from Dar es Salaam; 1 ,?.OQ_.600/= as subsistence allowance; shs. 30,000/= a~ al.ong servi.ce awar~; subsistence allowance of shs. 6000/= per day since 1Q9?. to date of judgement, while 2nd plaintiff missed shs. 858,540/= J.ess wages and fringement penefits paid; shs. 201,600/= subsist.ence allowance and entiiled promotions. That is all that c;:in he descerned from the plaint, and as the law prescribes, at this stage we have only to confine oursel.ves to the four corners of the plaint in nrder, among others, to satisfy.ourselves as to whether a cause of action 4 '::'.•' .. , : ,.

, .. exists in the form sought. As WRS stRtAd in JRRAJ SHARIFF~ RONS VS CHOTAI FANCY STORES (1960) EA Rt 375, "The question.whet.her a plaint discloses r1 r.a11sA of action must be determined upon perusrtl of the plajnt alone, together wj_th anything attached so as to form part of it and upon the assumption that r1ny express or implied alleg?tions of fact in it are corn~ct". I will start with the nd leg of the prelimin;:iry ohjer.t.in,i - that is the one regarding a caui:.e of r1r.t i.on. J r1 i.d go thro11gh r11 .l. thrit is averred by plaitiff in R somP.whRt. oetr.1Ued :::mmmr.iry r.1hnve, purposely. Clenrly the war. hy the plr1int.i.ffs is waged agri:inst the action or .non-actio_ns hy the Jndustriri.l r.nur.t. of 'J';mzr1nir1. 'T.'hey are complaining against thr1t r.ourt's fr1il11re tn rler.ide on the T:r.ade Dispute ref erred to .i. t., award of n vo 111n t-.R ry Agreemen 1-. which did not pass through the lt:ga l l y pn=!sr.r j hec'I proorlt.ire, r1 nd subseauent advice confirmina thjs award hv the sr1me ro11rt to the

• •·•·, - - .. Labour Commt,?sione;. It is clear. therefore that they ar.e challenging that court's in-actjon and derision - award. ~his is clearly painted by their prr.iyers quoted at the beginning nf t.h.i.s ruling.· The above being the case, as right.ly i:.uhmitt.ed hy Mr. Salula, SSA, a proper wr.1y by which the inrictions and acti.nns of the Industrial court can be challenged ii:. hy way of applying fnr prerogative orders and not by way of a s11it as the pJr1intiffs have done. They have Pmbarked on a wrong avenue. Now turn :i.ng to the next lP.g nf the object.ion (which may seem unnecP.ssary to determine in view of the finding on leg one), j11st for the sake or argumP.nt., if it. wr.1s to he hP.ld that. the plaintiff could come to this court by way of a s11it. RR they did, r.learly they would be barred by- Limitation of ti.me. 1'hii=: i.s so her.a11se, as again rightly point.Ad out by Mr.. Sal.ul.n, SSA, thP. ca11se of action sho11ld he taken to have arose in 1QA6 whP.n thAy were 5

( } declared redundnnt.. Agr1.in thjs would hP. hr1R<l on r1 r.ontrrlct of employment between them and the 4th OefendRnt. A sit fn11nded on such con tr act c;rn o:n l y he inst.it u tecl w·i th i n ::; ix ye;cn·s of the accrual of the cause of nction AS prescrihPd 11nder the 1st schedule to the Lnw of Limi.tat..i.on Ar.t .. No. 10 of 1971. ,Just for clarity, the Plaintiffs cr1nnot r1rgue thRt thRre was r1 contin1Jing cr1use of ar.t:inn because there were negot inti nns going on - ·it. ·is trite law that negotirit.ions or c'lisr.11Rsions on not r.hf"!r.k periorl of Limi.tr1tion. (As ohserveo hy K. ,T. R1rntnmji on the inclinn Li.mitntion Act, which l;=iw i.s Rome how the i:;r1me ;:is ours, in hi.i:; treatise, The Law of limit.Rt.ion, 5th Relit.inn .. " . . . . . . . t h e p l ;:i in f·. i f f j f h e i:; u e M A f 1-. P. r t h e P. x p i r y o f t i me will be barred even·where the clRfendant. hns hetrayRcl him into permitting the time to l;:ipf:;e in fruitless enq11iries ...... ;:ind negot i r1t:i ons ..... "). Thus filing the present suit in 1997 s i nc:e th A r1ccruaJ e1;=it:e, 1 986 would be deplorably out of time. The two prelimin;iry nbjer.tions raiserl by 1st, ?ne1 Rnrl ~th defendants are accordingly sustained. With thj s finding :it. becomes 1mnecessr1ry to cons i <ler r=rne1 ;:rnalyse the ot.her grouncls r;:iii:;ed hy Miss Rr1yonr1 for 4th Defendants. However, albeit briefly, j11st for the sr1ke of argument, all the grounds t'i'i ised have suhst;incP. except. the one regarding the question of Res jud i.cntn.. for t.hat one l RCkP.<1 suff.icient particulars Rnd <let.ails 11pon which this court. r.oulrl haie its decision. For the reasons discussed ahovP. t.hA prAlind.nary objer.t.ion.c; indicated are upheld ane1 the present action is ;:iccordingly dismissed. (L. R. KnlRgeyr1) ~l.lJJ}G.R

AT. DAR Es SALAAM 3Q',:~~2!L ( f, · R . KA 7 P. CJ P. \TA )

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