Hashim Madongo and 95 Others vs Minister for Industries & Trade (Misc. Civil Cause No 2 of 1995) [1998] TZHC 2151 (24 July 1998)

' ·1 ·• IN TffR HIGH COtJR'l' OF . 'T'AN7.AJH A AT DAR E8 SAT.AAM ·.:,· DAR·ES SAT,AAM 01S'11:RT.'r RF.T'rRY MISC. CIVIL CAUSR NO.~ OF 19q~ ·IN THE MATTRR OF AN APPT,H!A'T'TON FOR ORDF.RS OF CRRTIORAR AND MA.Nn.l\MHS BF.'J'WF.F.N HASHIM MADONGO & 95 O'T'HF.RS - APPI,JCA.NT ANO ,.J " THR MINISTER FOR INDUS'l'RTF.8 14 'T'RAnF. -RF.SPONOF:NT R U t T N G KAT.,RGEYA, J. This is an application for leave tn r1pply fnr orders nf certiorari and Mandam11R. Mr. Mkongwr1 RppPArr->~ fnr the Appli~antR (Hashim Madongo and 95 Others) while Mr. KRmhR, Senior St;:ite ' Attornfly,i::·appenrfld for the ReRpnn<'IPnt ('T'hr-> Minislry fnr 'T'rr1de An(l.-_.,.,3

• .. Industries). Facts culminatig jnto thiR Statp nf Hff,,irR are as fo;lows:- By GN No.3\91. ·the govflrnment. nf 1-he llnit.ec'l RepubJ.jc of Tanzania being a sol~ shareholder, thro11gh the Ministry of TradP •, and Industries, decied to dissolve OAR'l'F.X ( Dr1r As Salaam 'T'ext. i .. l e . . ~ Company Ltd).·Vide the said GN all ARRP.tR r1nd 1.iabilities of DARTEX were• .. vested ··rn· the Dar es Sal.r1r1m Regi onr1l Trading Company. The ·said' qt,( hwever"_a.s silent in respPr.t nf the plight. of DA.R'T'F.X employees. This prompted OTTU on hehr1l f nf 1·he present r1ppl.ic,rnt.s .- ''.. to ·file Labour Dispue No.17\92 with t.hA Tnrl11Rt.rir1J. Con.rt of Tr1nzania in which however they lost.. 'T'hP Respnnnents then were the R_egional Trading Co. Ltd and the "Rn;:irn nf TntArna l. TrMle. Tr'.T,. :'."' r.onr,1.uded, among other!=., t.hr1t t.~en'! wr1R '"' 1.:-ihnnr rliRp11h=> llPhvr-1.•11 , the parties as the Applir.,mts h·;:in npver liPPn Pmployed by , ,4. · , jr Respondents for they coul c'ln' t fr111 11ncler 1-he 1-prmi"\ ";:isRet.s ;:mil li.abilities" prescribed under GN 34\Q1 -· in nf·her woros, 1·he c'l ii:;mj si:;al was· due to "want. of j11r i Rd i r.t ·inn". l

... IN THJ'l. HIGH COUR'T' OF_'T'J\N7.J\NTA AT DAR F.8 8AT.AA'M DAR F.S SAT,AAM DJS'T'RTf'.'T' RF.GTS'l'RY MISC. CIVIT. CAUSF. NO.? OF 1995 IN THE MATTF.R OF AN APPT.Tf'.A'T'TON FOR ORDF.RS OF CRRTJORAR .ANO 'MANn1\MTl8 BRTWF.F.N HASHIM HADONGO & 95 O'T'ltF,R8 - APPI,ICANT AND THE MINISTER FOR INDUSTRJF.S t 'l'RADF. -RF.SPONDRNT R U i T N G KA.LRGRYA, J. This is an application for lAavA tn apply fnr ordarR of certiorari and Mandamus. Mr. Mkongwa appParP~ fnr the Applicants {Hashim Madongo and 95 OtherR) whilA Mr Attorney r··appe;:i_-red for t.hA ResponrlPnt t 'T'hn Mini R1-ry for 1'r,cic1P anr1 Industries). Facts culmiati_ng j nto thiR St at P n f ;:if f n in; a.n a.s follows: - By .GN No. 34 \ 9l the govAr.nment. nf the Uni tAn RApuhl j c of Tanzania being a sole shareholder, t.hro11gh t.hA Mi nist.ry of Tn=1ne and Industries, dectded to dissolve nARTF.X (Dar. AS SaJ.aam 'T'extiJe Company Ltd)<·Vide ihe said GN aJJ nRRetR and liabilities of DARTEX were vested in the Dar es SRl.nam Reaionnl Trading Company. ~ . . -• - The said.qN:hoeverCwas silent in rP-RpP.r.t nf the plight of DAR'T'RX (.' '; ~ employees ·This prompted OTTU on hehRlf nf the presAnt appli.antR to ·file Labour Dispue No.17\92 with thP Tn<l11st.ri.r.1l Court of Tanzania in which however they loRt.. ThP RARpnn~ents then were the R_egional Trading Co. Ltd and the Roarn of Tnternal Tr a.de. 1<-:T ., concluded, among others,. thnt thP.re wr1R nn LRhn11r <li.Rpute hetwePn the parties as the ApplicantR had rn:wer hPPn P.mployed by Respondents/ for they couldn't. fal 1 11rnler t-hP. t.FirmR "asi:;ets a.nd ) . b']'t' " ''b d d GN -:i4\q1 . f-h d th .. ta 1 _1 1es prescr1 e. un er. .:, .J. . - , n n Ar. wor. s, __ e di.smissal was' due to "want. of juris<lir.t-inn". l

;.. ,,. ~·Meanwhile however, the government had taken note of the omission in the GN 34\91 and rectified it by passing GN 114\93 which prescribed, among others, that (though again not without some\ommissions as vividly.seen in the anded para.5 where the wotd "employees" was ommitted let alone the wanting general wording) th•mployees 11 ._/ ••. ·./shall not be trans£ erred to the holding company but shall ave and, with effect from the 1st day of March, 1991, shall be deemed to have had, their employment terminated, and the holding company shall pay to each of such employees all payments due to him from the specified company on account of the termination of his employment". Armed with the said GN (No. 114\93) the Regional Trading Company wrote letters of termination to the applicants and paid them terminal·benefits which they consider to be "very small" let alone faJing to know the basis on which they were computed. :'' ' From all this, the Applicants feel that "the Respondent's order embdied in GN 114 of 1993 was baa in law as it interfered with the voluntary nature of contracts of employment and it actually frustrated: the contract of employment between the applicants and Dart.(!_x" ,. and pray for leave to apply for : 11 order of Certiorari to move the High Court for·-the- purposes of quashing the GN. 114 of 1993", · · · ., - · · and an "Order of mandamus directing the Minister of Industries ·and-Trade to follow the proper procedure of terminating the 'applicant's employment with Dartex". In the support;ng affidavit and oral submissions by Mr. Mkongwa·.-for ·Applicaiits it is argued that the applicants find themselves with no other venue to purs1J their terminal rights except·this one, because RTC could not terminate their services as it was not their ·'employer and DARTEX which was their employer got dissolved without effecting the termintion; that the Industrial Court could not entertain their dispute as they could ,. 2

not establish emplorer\employee relationship with RTC (Dsm) nor had DRTEX terminated their employment and finally that they had been denied their right of being heard nd pursuing redress through the legal system thus condening th8m unheard. In response, Mi. Kamba, Senior State Attorney praied for dismissal of the application urging that (a) the applicant, Hashim Madongo did not comply with the mandatory provisions of 0.1, Rule 8 of the Civil Procedure Code before filing a representative suit, citing the case of George Mpondela and 2 Others, Misc. Civjl Case No.114\94. (b) the application is hopelessly out of time as it . ' .should have been filed within 6 months of the 1• ' .: , act complijined against as per s. 18(2) of Cap. 360 as ameded by Act 55\68-that while GN 14\93-as published on 14\5\93 the application was filed on 16\1\95, / '. (c) that the supporting affidavit is incurably defective being in iolation of 0.19, Rule 3 CPC for failing to.disclosJ in the verification clause the sources .of ·information - citing Court of Appeal decision in Civii CaseNo. 36\94, Salima Vuai Foum vs.Registrar of Cooperative Societies and 3 others (Zanzibar Registry and Unreported) . . i,. ; . ·' In reply Mr. Mk6ngwa insisted that this is not a suit but merely an application for prerogative ordrs which need not comply with the requrements of 0.1 Rule 8, CPC as it is not a representative suit; that on the question of delay the applicants didn't know where topresent their claims, and finally that the 3

.... / relevant affidavit discloses obvious facts concerning matters of public knowledge vivid on public documents whose source need not be included in the verification clause. I will start with Mr. Komba's submissions as a decision thereon is the basis on which the the application will stand or fall. To start with the last submission rpgrding affidavit, with respect to Mr. Kamba, SSA, the relevant affidavit is not defective in the least. Unlike the affidavit which was the subject of decision in Civil Appeal No. 36 of 1994 (above cited) the·presen affidavt has a verification cluse and the relevant paragraphs cannot be faulted for lack of snurces of information as they contain informations that came to the deponent by virtue of his being an insider as an employee, nri others are of public knowledge like the publications of GN 34 of 1991 and GN 114 of .. 1994. i ,; Next we turn to the issue as to whether or not the application is- time.barred. S. 18 of the Law Reform Fatal . ' Accidents.and Misceilaneous Provisions Ordinance, Cap. 360 as amended by Act. 55 of 1968 clearly provides, -"18(2) subject- .. to the provisions of subsection (3), rules made under subsection (1) of this section may prescribe that applications for an order of mandamus, prohibition or certiorari shall, in specified proceedings, b made within six months or such shorter period as may be prescribed after.the aci or omission to which the application for leave _relates (To date no such rules have been made) (3) .In the case of an application for an order of Certiorari to remove any judgP.n11111·, order, decree, ·conviction or other proceeding for the purpose of its being quashed, leave shall not be aranted unless the application for leave is made not later then six months afte the date of the proceedina or such shorter period as may be prescribed under any Act, ...... " (emphasis mine) .J. 4 ... "·•.. ..·.· .. ~··.- ,', ..

.. :,✓ ' '• ,c • . The_ Apl,1cants int.end t.o mnvP. l"hP. ,n11rt·. tn i ss11P. or<'lers of certirari 'to quash GN 1.14\94, and rn,rn,h1m11s to oirer:t. the minister of Industries and Trade tn fnllnw the proper procedure of termiating the applicants' emplymPnt with DARTX. While J sympathise with them the ApplicRnts r,;:in't r1ssr1il this h11rdle as rightly argued by Mr. KRmba, SSA. S.1R nf rAr.360 above quoted j_s self explanatot:"y. The applicrJt.i.on is h11t h0pPlPssly 01Jt of time. GN 114.of 1994 was publishe<'l on 14th Mr1y, 1QQ4, an<'l the npplication WrJS fi.led on 1.nt.h ,T;rn11r1ry_. 1QQS_. ;:ilmnst A months later. Even Mr. Mko!').QWn, l.enrrnfl r.n11nsP l fnr t·hP. App 1 i cants, concedes to this but i.Hg11es th;:it t.hP. Appl i r:;:ints were conft.lRP.<'l RS they didn't know whether to proCP.P.d r1gr1inst OARTRX or RTC ;:ind cr1me to realise the proper RVP.ntlP whPn t liPv ,.,,.,,,.P. al rp;:ifly 1 ;:it-p. With respect to.Mr. Mkongwa, T need nnt rPmin<l him that ignoranc~ of the law (in this casR regAring thR pejod of t,4'·,•, I limitation) is no defence, let ;:i]onR ignnrr1nrR on how to pursue ones rights in a siiuation wherR thRrR iR no application to .:;_ "- r enlarge the time within which to tRke RRRentiRl legal steps. Having realised their error the Applir.;:ints Rho11ld have fj_rst filed an application· for extension of timp within which to apply for the leave sought. Having fail Rn to t·;:ikp thnse steps whi.d, could have possibl~~secured them the prPrpq11isit.e enJ;:irgement. of .. time the present application is inr.nmpPtPnt. •. ~ . -The above. disposes the matter, h111· fnr t.hR sake of argument· 'I" ,, '. , ... ~ T sho_uld·also deal''.with another .,ttr1r.k lr111nrhRrl by Mr.. J<Amh;i - that anotheL factor '.which makRR thiR r1pplirr1tinn incompetAnt i~ lack of coμrts' leave to MA<longo tn filP ;:in ~pplication on behalf of others as .. per requirements of O. 1 : Rn 1 P 8 nf the C:i vi 1 ·( .. Procedure Code. 0.1, Rule 8 CPC, jn pnrt provides: ~Where there are numerous personR having the same interest in one suit, one or morP nf s11r.h persons may, wlth · thA pAr.m1AAion nf t.hA r.m1rt·, io:11A l"lr hP. ~uAn, or may defend, in such suit, on bP.hr1lf nf nr for the benefit of all;! persons' so interestR<'l". 5

. ' Whil~Mr. Kamba considers the present application to be a represeptative suit Mr. Mkongwa counters by arguing that applications'for orders of Certiorari and mandamus are not suits .. hence are excluded from the requirements of 0.1, Rule 8 CPC. I have paid due attention to the arguments and the limited literature available to me regarding the issue and I have reached a conclusion that though termed as an 'application' as opposed to the catch erm 'suit' it cannot escape the boundaries of 0.1, Rule 8 CPC. u.nfortunately I have not ben a.ble to land on any local authority which specifically discusses a similar issue. The Civil Procedure C6de does not specifically define what a suit is. However, BLACK's LAW DICTIONARY [Abridged, Sixth Edition] throws some light on what generally is considered a suit. : "SUT: A generic term, of comprehensive signification, . referring to .any proceeding by one person or persons against another or others in a court of law in which the plaintiff:pursues, in such court, the remedy which the law:affords him for the redresR of an injury or ·enforcement of'a right, whether at law or in equity. It is, however, seldom applied to a riminal prosecution. And it was· formerly sometimes restricted to .the designation of.a proceed1ng in equity, to distinguish such proceeding from an action· in law. Term 'suit' has generally been replaced by term 'action' which includes both actions at. laW' nd · i.n iqui ty". {j . . . . . t . . ... ~ '· To give this BLACK'S LAW DICTIONARY its proper place in the world of egal Refeence materials, I should hastily point out that what is contained therein are "Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern". . . . As to what an "action" is, Mitra's legal and Commercial Dictionary, .(Fifth Ed. by A. N. Saha) defines it as follows, .· .... "It' is- -a· proce·e·ding by which one party seeks in a court of justice to·enforce some right against, or to restrain the commission of some wrong by another". 6

••• i ) . J ... ' ./'-.•· ' • .~ .i ./' - I•.• . ' Turning again to BLACK'S LAW DICTIONARY, it has the following to say on the term "action", !'Term in its sual legal sense means a lawsuit brought in a court:·a formal complaint within the jurisdiction of a court of Law. The legal and formal demand of one's right from another person or party made And insisted on in a court of justice. An ordinary proceeding in a court of justi6e by which one party prosecutes another for the enforcement or protection of a right, the redress or ·preverttion of· a wrong or the punishment of public offence. It·includps all the formal proceedings in a court of justice attendant upon the demnd of a right made by one person .of anot;her in such court, including an adjudication // upon.the rightand its enforcement or denial by the court''. I.must confess·-that the issue is not without complexity, and indeed·as.it has always- been right from the early days. This is . . exemplified by the arious approaches and focuses from different jurisdictions as portlayed in "WORDS AND PHRASES - JUDICIALLY i;:·':· DEF I-NED,,. VOL. 1" under the definition of the word ACTION. ;I ., .. r • 'I • In Clarke v Bradlaugh (1803), 8, App. Case 354 the House of Lords heldtat 'acion' in its proper legal sense is a generic term or nomen generale, and includes every sort of legal . ' pr9cteding ..i;rwenty ·:five years later ( 1908) the same view was fli~~:a:.:'1~'Aust'ra1·fa in Re Carter Smith, Exp. Taxation Comrs '' ~ . , ..... ( 1908 )t's1 s·. R. N .'s. w:::246. ir ~ -:· := : : : ; -: :· fin:BeL~~ke, Exp. Poppleton (1890), 62 L.T 942, the word t '· • •. , . .... .. .: f .. •action,, was'('restricted to the plain words used by the ... ,I ~ · ... Legislature~~ ''shall• include suit, and shall mean every . . , . . ~ .. proceeding'. i- the c9.urt which may be commenced as prescribed by plaipt •:. The· court :·ent on, 11 1'hat is as far as the legislature has thought fit toienlarge the meaning of the word action. It is I .. , said that it shouldbe further enlarged so as to include motion. You cannot· do that"~.:'.( emphasis mine) . • r 7 .. ,., ......... , .... •.·

' I .. . . The same restricted meaning was displayed in Johnson v Refugee Assurance Co; Ltd(1913) 1 K. B. 259, CA where it was defined, '' .... It was.intended to include j_n· the term 'Rction' any civil proceeding in which there is a plaintiff, who sues, and·a defendant, who is sued, in respect of some cause of action, as c6ntrasted with proceedings, such as statutory proceedings, which are embraced in the word 'matter'". However, the above restricted approach was tornaded by a liberal view in Rv Westminster Assessment Committee, Exp. London & Provincial Vituallers, Ltd, R v Islington Assessment _Committee, Exp. Royal Agricultural Hall Co. (1917) & K. B.215, CA, where it- was observed "With regard to the prerogative writ of mandamus .... there is ... a rule of court prescribing the manner in which the proceedings for obtaining the prerogative writ of mandamus shall be commenced, and ... those proceedings, therefore, fall within the definition of 'action'. ("Prerogative writ 11 was replaced by "prerogative orders"). In NewZealand, 5'years later (1922) the latter stand was even better put "The notice of motion ... involves two things: in the first place it {sin the nature of mandamus, as it asks for an officer to be directed to carry out his duty with. regard to the registration of certain trade marks; 'and, secondly, it asks for relief in the form of a correction to.'be effected in the Register of Trade Marks:::; it'is(a civil proceeding commenced in a manner prescribed by rtiles ... I cannot limit the meaning of the term 'action' aused in the rules by saying that it does not include the procedure in this case" - Kiwi Polish Co. Pty v Kempthorn; Prosser & Co. 's New Zealand Drug Co; Ltd, [ 19 2 2 ] N. Z • L • R. - , _177 • ',.';·- What do we lrn from all the above? It slams straight into our face· ·1:ha_tglobfi.1'y' the restrictive meaning of the term 'suit' as originally ·w~s- ~-. been burst and the term I action I is now taking over its domain carrying with it all that it entails which include not only matters that involve 'plaintiff' and 'defendant' 8

. •·• ' .,,,. - ·• .. . ).,?/'?!, -~ ': . .. ·, .f pursue, in whatever for.m nr fnrmrif· providen those Pl'.'Or.eSSP.S ;inn Ar.r.n1nl 1 ;:111yi llf_.:1 rn,·rn ()I' fnrm.:cil· ;or,;, recoanised under the J.r:1w. Anrl t·.hpsn n1·0r·oi::r.:<=>s ('. l er1-r l y i nr. l 11rlP 1 : t. f t. . ,;J ,··. // ripp_ J.Cn J.ons .. or. cer. .. 1ornrl rint, mr1nr,r1n•11r:: I am not convinced t,h;:it. simply hr.w;lll:-'.P f·hnsP prP.rng;:it·ivn orders have a prescribecJ fol'.'mat. in whi r·h thnv ArP. t.0 hP. prPsr-nt0rl before the court they ft.re P.xcJ nrlerl frnm h,,; n0 c·r,,,si_rlerP.rl ;:is "suit" or "act.ion". WhP.t.hP.r WP. 11sn 1-1""'' 1 ,.,,nll "·11i 1-" nr ";::ir-:-t-·inn" what. it all boils to is t.hAt. t.hP. t.nnns ,.,,..,.,n.,1-r, ;--ir,y lPg;il ;nd formal pr.oceed:i.ng beforP. r1 r.011rt. of ·i11,..:I i 1 •0 11, whir.h onP. pr1rly seeks to enforce, in whr1t.evr m;:innpr, his r iht·R r1gr1inst thn other. In opplir.nt.i.ons for prerog;:it-·ivp n1,lP1 c: nnP p;;irl·y ·1::; saying, either, "so ·and so hris donP t.his r1nrl is cnnt·in11ing rloing it-., or has made that order or der.isinn •~hirh T r.onsidP.r to be injurious to me, or. t.o vi.ol r1t-.P rny ri r;hh=; hP.nr.e my prayer to the court to use itR pnwnt· In prnhihit him from .continuing wi.th the violritinn, nr J-c-i r-3].J. up a11d quash the order or <'leci.l=;:i_on mAdP,. ;:in('! ~nm! 1 el him to take the right; step". Of cn11rse nnt t,i:,t·,· 1 P.en inrljvich.12-ls but between 'individual ;:incl p11hl i,· 1,,,,1y. t hr1vP. pn::;ficl hrr "' and asked mys_elf, what takes s11rl 1 111r1t·t:nr outside the ambit of a "suit" or. "act.i.011"? T r.;:in spe nonP. 'T'he restrictive int.e:rpr.etatjon of t·lw IP.rm 'suit', a 1.eg;:ir.y of the past centuries has been nvPrt;ikpn by a broader. view , .. ', and now an application for or<'lerR nf CPrtiorar.j and mandamus sql!areJ ly faJ.1 11nrler 1-l,r-> l r1tter focus. Raving so ~oncluded it nat11rr1lly fnllnws th;:it whoever wi.shnR t.o file an appli.cat.ion for orciP.rR nf r.p1·1 inr·;iri ;:inrl M;:in<lr111111s on his own behalf and that of others mnst· f i 1·sr- seek leave of the court as per. mandritory rPqni rement. nf n 1 . 'R11l e R of 1-he r..i.v.i 1 Procedure Code concerning a :repr:P.sent·_;i1· i vn sni 1-. g

' " ; ·- I, "-i In Misc. Civil Application No. 114\94 (HC - Dsm Registry), unreported, George Mpondela and 2 Others v Salum Ipande & 674 Others (cited· by Mr. Kamba), Samatta, JK, (as he then was) quoted with approval commentaries of two learned Authors, Sir John Woodroffe and Ameer Ali's CODE OF CIVIL PROCEDURE, 3rd Ed. Vol. II, on 0.1, Rule 8 of the India Civil Pracdure Code which is i11 pari materia with our 0.1, Rule 8, where they state, "A representative suit cannot be said to ha.ve been validly instituted unless and until the mandatory provisions of 0 1 Rule 8 of the Civil Procedure Code are complied with .................................. . common interest litigation can be conductP.d only in accordance with the provisions of Order 1, Rule 8 of the code. As alreadt remarked, failure to comoly with these mandatory provisions is fatal to any such suit or application". (emphasis mine). Thus even if the application had not hen time barred it would still be incompetent for failure to comply with 0.1, Rule 8 CPC. For the clear reasons discussed above, the application being incompetent before this court it should be struck out and it is so ordered. ( L. B .. K.:.:llegeya) JUDGE Delivered in the presence of Mr. Mkongwa, Advocate, and Mr. Karnba, SSA, today the,: 24th July, 1998. AT DAR ES SALAAM 24TH JULY, 1998 (L. B. Kalegeya) JUDGE