mutungi vs university of dar es salaam 1999 tzhc 7 29 january 1999

f , / IN THE HIGH COURT OF TANZANIA .~_T_....nA.1LJ;;:B __B_~I·b.b.M MISC. CIVIL CASE NO. 17 OF 1994 J. S. MUTUNGT APPLICANT VF.RSUS THF. UNTVF.RSTTY OF DAR F.S SALAAM ... RF.SPONDF.NT On 17\11\95 ..this court ..Bubeshi J: ordered t.he Applicant.: J. S. Mutungi: to amend his chamber summons together with its accompanying affidavit. This was a result of a preliminary objection raised by the Respondents: University of Dar es Salaam challenging the provisions of the law on which the application had been brought. Let me pose a little here ann relat.e briefly the backgrouno leading to this state of affairs. The Applicant was employed by the Respondent. on 27\2\70 as an Accollnts Clerk at a mont.hly salary of £ 360 p.a. On 17\11\81 his employment. was t.erminated allegedly for neolioence which led to theft. of a cheoue worth lJS. $ 52: 260/= issue~ aial~~nt and later fOllnd to have -heen C"~d in Geneva. By then he"been promoted to Acr.Ollnt.antGrade I. He could not ar.r.ept the termination henr.e his appeal to the Conciliat.ion Board which lIpheld his complaint and so is t.he Minister responsihle for Lahour matt.ers to whom the Respofl(lents appealed to challenge the Board's decision. The Minister nroered for his re-instaternent. Tnstead of reinstAting him t'he RespoTHlenf paid him termi na 1 henef its alllounting to shs. 1: 1S3: 37.0.:1 5. DiSSAtisfied with this: AppliCAnt fileo An Application citing 0.20 ..R.o and S.33 of t.he Cpr... 1900 AS well AS s. 41 of secu~ity of Employment Act, Cap, 574, praying for, among others, the ,. fchowina - orner:- "That this Hon, Court,., order the Reslionnent t.O pay to t.he applicant. a sum of 1'Rhs. 12,627,908\65 being t.erminal benefits and statutory compensation ordered under s. 40 A (5) of the Security of Employment Act, Cap. 574". Nyangarika, Advocate, for the Responnents raised objection already referred to - that the wrong provisions of the law were cited - which objection waR sURtainen ann the court ordered, liT am minnflll of the fact that the Applicarll. iR a lAymAn - hence not converRAnt with the techniCAlities of the law. 1'0 that end I would allow him leave to amend his chamber application in line with section 27 and 40 A(5) of Security of Employment Act, cap, 574 and n.?'l Rule ;7,0, The applicant can claim damages arising from the Respondent's faililre to comply with the deciRion of the Minister", The Applicant. proceeded and amended both his chamber Rllmmons and affidavit. For the chamber summons he indicated that he waR acting "under sections 27, 41, 40A(5) and 50 of the Security of Employment act, 574; n,/.1, Rules ?,O ann 30 of t.he civil Procenure Code, 1966 pluR any ot.her enabling provisions of the law. He also mane ot.her amendment.s. He adned two more Respondent.s - Prof. D. J. Mkude ann Hashim Hamza MtAnga, and amplified on the prayers, among ot.herR, wh ich run as under.: "l. That Prof. D. ,1. Mkude, t.hR Chief Administrat.ive officer Ann Hashim Ham~a Mtanga, the Principal officer of t.he UniverRit.y of nar eR Salaam, juogement. rlebtor, he called upon to show caUSR why t.hey should not be detained as civil prisoners for refusing to comply wit.h the decision of the Minister for Lahour dat.ed 5\4\93. 2. That "LIL;:L(ldLLigl1---c orin th~ "lt~rnAtiv~ th~ Applicant be awarded damages for failure of the judgement-debt.or to carry out the Minister's decision dated 5\5\95, AND .. 3. That the Applicant be paid shs. 2,524 ..275 the aggregate of statutory compensation comput8d in accordance with S. 35 AND a sum equal to Twelve months wages amount.ing to shs. 2,019 .. 420/= in terms of Section 40A (5) of t.he security of Employement Act ..leave pay of shs. 929,871/= ..Senior Staff superanuation 1,097,076/=, Transport of personal effects 339 ..300/= ..transport of family 231 .. 955/=, Housing allowance of shs. 1,005 ..720/= apart from damages. 4. That upon failure to show cause the two said officers .. Prof. D. J. Mkude And Hashim MtAngA h~ detain8d as civil prisoners. 5. That the first Respond8nt jlldg~m~nt debtor he prosecuted of the offenc8 prescribed under section 50 of the Security of Employment Act". When the mat.ter came before the Court (Bubesh i \J) ..)Mr.Nyangar ika, Advocate, who represented the Respondents again raised a preliminary objection that the court order had merely allowed Applicant to amend the chamber application by providing the necessary provisions of the law And not to bring totally a new cause of action involving new parties and new prayers. He also argued that as the 3rd Respond8nt is no longer an employee of the 1st Respondent he can not in law be joined in t.his matter. He further argued that an affidAvit cOllld not b8 amended and that if he wished he could bring a supplementAry affidavit. He praY8d for dismissal of the application for nff8nding 0.6, RIlles 16 and 18 CPC. Mr. Mbuya for Applicant countered by arguing that there is nothing new in the application; that all prayers relate to an application to have the Respondents comply with the Minister's order of re-instatement. The matter was then reserved for a rlliing. Unfortunately, however, in between: M~dame Bubeshi: J, realised that she had been appointed a member to the University of Dar es Salaam Council and excuseo herself from further dealing with this matter. ~was re-assigned to Kaji: J. Upon moving on transfer the matter was re-assigned to me. When it came he fore me, I proceeded with it unaware that there was a rllling pending. Although the Applicant was present in person and Mr. Nyangarika still represented the Respondents: I think also due to inadvertancy, none bothered to point this out to lTle,and we proceeded t.o fix dates for filing written submissions. The Applicant duly complied with the order but the Respondents didn't. Belatedly, for Ilnknown reasonS/Respondents were jolted to their altl!'tnessand swiftly filed a reply out of time (and without leave of the court) and therein pointed Ollt the defect which hao touched the procedure: that what was being awaited was a ruling. I have gone through the background oetailedly for clarity, Indeed the last order of arguing the main application was prematurely mads) for) it could only he argued aft.er d-isposing the pre 1imina ry obj Bct ion wh ich was full y argueo be fore Rubesh i .J: and ruling reserved. Having so discovered I hereby proceed to give the relevant ruling. I have carefully considered the arguments presented before Madame Bubeshi, J, and the relevant law and have arrived at the following findings. 0.6,. Rule 16 and 18 of the Civil Procedure Code cited by Mr. Nyangarika are irrelevant. here. The COllrt did not strike out applicant's pleadings; it simply directed amendments, and not for being unnecessary, scandalous, prejudicial, embarrassing or to delay trial as provided under 0.6, Rule 16 CPC but simply because it cited wrong provisions of the law. Neither is 0.6, Rule 18 applicable..) fo~ 4 indeed the applicant effected the amendment which amendments have made him (NyAngArikA) to r.01llpIAin. Tn Any r.Ase: 0.6. Rule 17 does not limit the extent which pleadings can be amended once the court grants leave - "The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between parties". In the case at hand, amendments thOugh highly amplified as compared to former pleadings: as rightly argued by Applir.ant: centre on one issue, failure to comply with the Minister's order of re-instatement. It should be noted that even the court order (Bubeshi, J.) which allowed the amendment did not limit Applicant to mere amendment of sections And orders as Mr. Nyangarika would want us to believe - it Advised him to go fllrther and apply for damages if he wished. Concerning the compJaj.nt that the 3rd Respondent is no longer in the employment of the 1st Respondent: thAt WOllld be subject of arguments during the hearing of the mAin applir.ation itself. FinallY)I should turn to the argument. that there should not be what is termed as an amended Affidavit.. T am in filII Agreement with Mr. Nyangarika: Advocat.e: that, generAlly affidavit.s being evidence: legally: it.sounds odd to say thAt a witness has amended his evidence. The USUAl pror.edure is for A pArty who hAS come Across A new fAct to sweAr And file a supplementAry affidavit. However ..A supplementary affi(lavit can only 1)8 filed where there is a valid applicat.ion before the Court. Tn a situation like the present one, an order to have a r.hamber , summons Amended does aWAy wi th bot.h t.he chAmber Appl~&Ati ons and the affidavit. which supports it. 'rhus when an Amended chAmher 5 summons is filed the nffidavit in support thArAof cannot bA tArmed as "supplemAnt.ary" for t.hArA is no nffidavit ..lAgally recognisable on record ..which can he supplemAnted ..bllt rather: it is that there is an independAnt, affidavit by itself in support of the amended applicat.ion. Notwithstanding thA above observat.ion ..T don't go with Mr. Nyangarika that this (Antitling it as amended affidavit) i.s a defect which gOAS t.o the root of the said affidavit condemning it to bA struck out. 'Phis is one of accommodatable errors on an affidavit ..which can easily he struck off leaving the rest intact. and lAgaly admissible. For t.his reason the offending word "Amended" appearing in the title of the relevant affidavit is~ruck off ..leaving the rest of the affidavit intact. On t.hA whole t.herefore, for reasons discllssed, save for t.his last. observation ..the Respondents preliminary objections are dismissed. (T.. R. Knlegeya) J.UD.0E.