justus mazengo 41 others vs tanzania portland cement plc 2022 tzhcld 53 25 february 2022

THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 2 OF 2022 BETWEEN JUSTUS MASENGO AND 41 OTHERS. APPLICANT O AND TANZANIA PORTLAND CEMENT PLC....... /RESPONDENT RULING Date of the last order: 16/02/2022 Date of Ruling: 25/2/2022 B. E. K. Mganga, J On 18th January 2022, Jdstus Masengo and 41 others who are employees of the respondent filecfcthis application seeking the court to issue temporary injunction restraining the respondent or Managers or officers or any agO>from making deduction of salaries of the said Justus Masengoand 41 others pending determination of the main case ^IN/417/2017 before the Commission for Mediation and Arbitratiorr(CMA) at Kinondoni. The deductions complained of by the said Justus Masengo and 41 others relates to the National Social Security Fund(NSSF). In the affidavit in support of the application, it was deponed that applicants were not in agreement with the respondent for NSSF deductions, because applicants have not been served with any official letter from NSSF for the said deductions and further that applicants have not consented for the said deductions. In the notice of application, the only name disclosed is that of Justus Masengo, the 1st applicant but names of 41 others are not disclosed though there are signatures allegedly, being of the said 41 others. In the^opening statement in the affidavit in support of the application, applicants < u >° mentioned names of 42 applicants and that they are " adult?male and female, muslim and Christian by faith anci resident of Dar es Salaam SWEAR/and AFFIRM as follows. On 10th February 2022,/respondent filed both the notice of opposition and a counter affidavit,sworn by Evaline Mushi, her Human Resources Director. Respondent also filed a notice of preliminary objections containingToukgrounds namely:- 1. The ^application's* incompetent for non-citation of proper enabling provisio^of^e law; 2. Thejqi^affidavit is incurably defective for being affirmed and sworn by \\a group of deponents; 3. The grant of the temporary injunction will pre-determine the arbitration pending at the Commission for Mediation and Arbitration; 4. The application is defective for lack of names of other applicants. This ruling emanates from these preliminary objections raised by the respondent. 2 When the application was called for hearing, Mr. Timon Vitalis, counsel for the respondent, prayed to abandon the 3rd ground and argued the 1st, 2nd and 4th grounds of preliminary objections. Arguing the 1st preliminary objection, Mr. Vitalis, submitted that applicants were supposed to bring this application under section 94(l)(f)(ii) of the Employ <\\ and Labour Relations Act [Cap. 366 rSe. 2019>K read together with section 51 of the Labour Institutions Act [Capf 300 R. E. 2019], but applicants did not cite that pro^jsion^in the notice of Application. Counsel for the respondent<submitted further that, the afore d provisions gives^xclCjye) jurisdiction to the Labour 1 Court to determine injunction applications while the matter is at CMA. Mr. Vitalis submitted that/Rule 24 of the Labour Court Rules, GN. No. 106 of 2007 cit^^yvjhe applicants gives procedures on how applications^shall^be^made to this Court. Counsel for the respondent submitteci^^jerthat Order XXXVII of the Civil Procedure Code [Cap. 33^R\Ei 12019] cited by the applicants does not give this court jurisdiction to issue injunction while the matter is at CMA. He argued that, the said Order is applicable when the dispute is being heard by this court. 3 On the 2nd limb of the preliminary objection that the affidavit is incurably defective for being sworn by a group of deponents, Mr.Vitalis submitted that, an affidavit is a substitute of oral evidence as it was held in the case of Uganda v. Commissioner of Prisons Ex-parte Matovu [1966] EA 514. He argued that the affidavit of the applicants z was supposed to be in conformity with the provisions/of\the Oaths and Affirmation Rules [Cap. 34 R. E 2002] subsidiary. Counsel for the respondent went on that, in the said Rules, a/Musliml solemnly affirms while a Christian solemnly swear. Mr. Vitalisxa^gued further that, the application at hand is not a representative) suit where applicants uses the word "we" to show theirycglle.ctiveness. He went on that, the affidavit by the applicants looks like a plaint. Arguing on the^t^found, i.e., that there is no names of the applicants, >Mr.zVitalis^submitted that, the notice of application was filed by Justus$^sengb and 41 others whose names are not disclosed but tnere^are signatures of the alleged 41 others. Mr. Vitalis submitted that, it is unknown who are the applicants in the notice of application. Counsel for the respondent concluded by praying the application be struck out. 4 Opposing the preliminary objections, Mr. Prosper Mrema, counsel for the applicants, submitted that the application is properly before the court and prayed preliminary objections be dismissed. Responding to the 1st preliminary objection, Mr. Mrema submitted that, the Rules cited in the notice of application are the enabling provisions. He went on that, as the application relates to injunction, citing of Rule 2(l<)vpf OrderyCXXVII of the Civil Procedure Code [Cap. 33 R. E. 2019] in the notice^application was proper as the said Rule gives jurisdiction^toSttiis court to issue temporary injunction. Mr. Mrema submitteUfbrther that, failure to cite section 94(l)(f)(ii) of Cap. 366/R ,(supra), and section 51 of Cap. 300 R. E. 2019, (supra), hasjno^effect to the application at hand. He however, conceded thaRthe application relates to labour issues and that there is specific^pr^yisions relating to temporary injunction in labour matters^Hevconceded further that, when there is a specific law, norma A) ynti^go^to the specific law and not general law. He conceded A also\thatJRule 2(1) of Order XXXVII of cap. 33 R. E 2019 is a general law. On the 2nd ground of the preliminary objection, Mr. Mrema counsel for the applicants, submitted that the affidavit is not defective. He argued that the Oaths and Statutory Declaration Act [Cap. 34 R. E. 2019] does not prohibit a joint affidavit. He argued further that, the Exparte Matovu's case, (supra), did not prohibit joint affidavit to be filed in court. Arguing the 4th ground, counsel for the applicants submitt hat the affidavit in support of the application contains names of all applicants. Counsel for the applicants submitted that; the 4th ground of preliminary objection does not qualify to^besregard^d as a preliminary objection. Counsel cited the case of Karata Ernest and Others k Attorney Genera!, Civil Revision xNp. 10 of 2010, CAT(unreported) as to what amounts to4thexpreliminary objection on point of law. In due course of his subrqigon, counsel for the applicants conceded that, there are no nam§s^of the applicants in the notice of A? application but only their\signatures. He conceded further that in absence f their names,Jthis court cannot ascertain who are the applicants./Gounsebconcluded by praying the preliminary objections be a^ brief rejoinder, Mr. Vitalis, counsel for the respondent, submitted that the affidavit has names of deponents and not applicants. Mr. Vitalis argued further that, an advocate can be the deponent but not the applicant. Counsel for the respondent prayed preliminary objections be sustained and the application be struck out. 6 I have examined the notice of application filed in this application and find that it was made under Order XXXVII Rule 2(1) of the Civil Procedure [Cap. 33 R. E. 2019], Rule 24(1), 24(2)(a)(b)(c)(d)(f) and 24(3)(a)(b)(c)(d)f 25(2)(a), 25(7) of the Labour Court Rules, GN. No. 106 of 2007 and any other enabling provisions of the law. I should point out I here that, there is no Rule s\\ >° 24(2)(a)(b/)(.c)(d)'(ff and 24(3)(aj(b)(c)(d) in the Labour Court Rules, GN. No.J.06)of 2007 but we have Rule 24(2)(a), (b), (c), (d), (f) antf24(3)(a), (b), (c) and (d). I take it that the drafter of the said notice ©^application intended to cite these provisions but he/she forgot to put comma where it is supposed to be. I therefore, findXhat .the omission is not fatal. p It was argued by Mr/xVitalis, counsel for the respondent that Rule 2(1) of Order XXXVii\ofJCap. 33 R.E 2019, (supra), cited by the applicants /in. thexapplication is not applicable in the application as applicants.^^^pp1ying for temporary injunction pending determination of^ex te at CMA. On the other hand, Mr. Mrema, counsel for the applicants submitted that, the notice application properly moved the court to issue the order prayed for and conferred jurisdiction to this court to issue temporary injunction. Mr. Mrema was of the view that failure to cite section 94(l)(f)(ii) of Cap. 366 R. E. 2019,(supra) and 7 section 5jl of Cap. 300 R. E. 201, (supra), has no effect to the application. In my view, the submission by Mr. Mrema, counsel for the alleged applicants is not correct. Section 94(l)(f)(ii) of the Employment and Labour Relations Act (supra) is clear that the Labourt Court has exclusive jurisdiction on an application for injunction. This, section o provides: ■ "94(1) Subject to the Constitution of the United Republic ofyTanzania, 1977, the Labour Court shall have exclusive jurisdictiorrover the application, interpretation and implementation of the provisions^ thiS'Act and over any employment or labour matter falling under,common Maw, tortious liability, vicarious liability or breach of contract andfo^deTide^ (^applications including - w COWA (ii) an injunction. In addition to the fofegoing, section 51 of the Labour Institutions Act,(supra), gives exclusive’jurisdiction to the Labour Court on matters relating to labouH‘aws?The said section reads:- ^IbsSubject to the Constitution and the labour laws and over \emp ymdnt matter failing under common law, tortious liability, vicarious Habiii^/or breach of contract within the pecuniary jurisdiction of the High Court; the Labour Court has exclusive civil jurisdiction over any matter reserved for its decision by the labour laws" From the foregoing, Section 94(l)(f)(ii) of the Employment and Labour Relations Act, supra, is a specific provision giving exclusive jurisdiction to the Labour Court to hear and decide an application for 8 temporary injunction on any matter relating to labour laws. There is no doubt that the application at hand relates to labour laws. It was rightly conceded, in my view, by counsel for the applicant that, this is a specific provision unlike Rule 2(1) of Order XXXVII of the Civil Procedure Code, supra, which is of general applications. In addition, counsek for the applicants, correctly conceded that, when there is a^specific provision, normally a resort is to that specific provision and not to)the general provision. It was not proper for the applicant not to cite section 94(l)(f)(ii) of the Employment and Labour>Relations, supra, that gives this court exclusive jurisdiction to grantstemporary injunction relating to labour matters. The notice of application was therefore defective. In the 2nd ground^pf^j^iminary objection, it was argued by Mr. Vitalis, counsel for th^rte^p'ondent, that the joint affidavit offended the provisions ofxth^Oaths and Affirmation Rules [Cap. 34 R. E 2002] and that the Sa|n^looks like a joint plaint for being improperly sworn or affirmed On the other hand, Mr. Mrema, counsel for the applicants submitted that the said Rule did not prohibit joint affidavits to be made. I have examined the joint affidavit arid find that, after the names of the 42 persons, it reads: 9 i” an Adult, Male and Female, Muslim and Christian by Faith and Resident of DAR ES SALAAM, DO HEREBY SWEAR/STATE and AFFIRM as follows:-" It is unclear as to whether the deponent has both gender i.e., male and female because it is stated "an adult male and female". It is further confusing, that the person sworn and affirmed at the same time. yx I m of that view because of the use of "and" which means conjunctive < "V and not disjunctive. In my view, this is what confused counsel for the respondent. It is clear from the Oaths and AffirmationjRules [Cap. 34 R. E 2002] that either the person has to sw.eaN^case of the Christian or affirm in of the Muslim. A.person^^not swear and affirm at the same t am in agreementxwith counsel for the applicants that the said Rules did not prohibit<joint affidavit but the way the alleged joint affidavit was drafted, iixjhy view, it is not proper. Counsel for the applicants Was/supposed to draft it in a such a way that does not create objection raised by Mr. Vitalis, counsel for the applicant, in my view has merit^ In the last preliminary objection, it was argued by counsel for the respondents that the notice of application has only one name of the applicant namely; Justus Masengo and not others. In his view, this made the whole application to be fataly defective. Responding to this ground, Mr. Mrema, counsel for the applicants submitted that names of the applicants are in the joint affidavit and that the notice is properly before the court. In brief rejoinder, Mr. Vitalis, counsel for the respondent submitted that the affidavit contains names of the deponents and not applicants because an advocate can be a deponent but not an applicant, /ft >° It is true that the notice of application was supposed tp^how the^names of the applicants. It is true further that names of the applicants can only be found in the notice of application while the^fflciayit is expected to contain n mes of deponents. It was correctly^iq/my view, submitted by Mr. Vitalis, counsel for the resporioentsthat an advocate can swear or affirm an affidavit as deponent\bi^hat does not make him or her the applicant An advocate is there to represent the applicant, who at any time, may fire him ancbengage another new advocate. The advocate in 5<Gliemt/does not turn to be the owner of the case or become pa^td'the case. x^Jha^e read Rule 24(1) and (2) of the Labour Court Rules, GN. No. 106 of 2007 and find that the notice initiates applications in this court and that it has to be signed by a party bringing the application. The said Rules reaos:- n "24.-(l)^Any application shall be made on notice to all persons who have an interest in the application. (2) The notice of application shall substantially comply with Form No.4 in the Schedule to these Rules, signed by the party bringing the application and filed and shall contain the following information- (a) the title of the matter; a (b) the case number assigned to the matter by the Registrar; (c) the relief sought; .PVv i (d) an address at which that party will accept notices^andservice of all documents in the proceedings; (e) a notice advising the otherpady4hat^if^he^intends to oppose the matt that party shall deliver a counteraffidavit within fifteen days after the application has been served, faiiure^Lwiiich the matter may proceed ex- parte; and rV (f) list and attachment of^hexfocuments that are-materia! and relevant to the application". From Rule and the notice of application in the application at haqc^Jt^s undisputed that the person who is indicated that signed the notice of application in terms of this the above Rule is Justus Masengo as his name appears in the said notice. There is no names of other applicants in the notice of application, as such, it is unknown who are the applicants other than the said Justus Masengo though the said 12 notice of pplication contains signatures of the unknown persons. Counsel for the applicant contended that so long as the joint affidavit contains names, these are also the same persons who signed the notice of application. That assumption is not correct. By the way, assumptions is not parti of legal training. We, lawyers were trained to deal with facts and apply them to the law and not assumptions.^We shoukxleave assumptions to the professions which assumptions is order ofzthe day. I ith Mr. Vitalis that an affidavit can^e^sworn or affirmed by any person including an advocate but not make him to be applican is therefore wron^to^s^me that the names and signatures of the deponents in tki’e^affidavit is the same as the applicants in the n e of application^In my view, the notice of application was supposed to sho^^ear^the names of the applicants and their signatures.Z^ailur^tb=indicate names of the applicants in the said notice of applicaf^^made the said notice to be defective. The court of appeal wa^con nted with all most a similar issue in the case of Hsu Chin Tai & 36^Others v. The Republic, Criminal Appeal No. 345 of 2009(unreported). In Hsu Chin Tai's case, supra, the notice of appeal read:- "TAKE NOTICE that HSU CHIN TAI & 36 OTHERS appeals to the Court ofAppeal of Tanzania..." 13 The Court ofAppeal discussed and held as follows:- "A question we ask ourselves, is this a joint notice of appeal? With respect, we think not. It is only one appellant Hsu Chin who has been identified by name. The rest are referred to as "OTHERS", but who are they? How do we know that the ”36 others" were desirous of appealing to this Court? With respect, thus is not a Joint notice of appeal. The names of all appellants should have been mentioned in the notice of appeal" . O Consequently, the Court of Appeal found theplotice ofj/appeal incompetent and struck it out. In the application at hand, the notice of£applica*tion that initiated this application as explained hereinabove,^fiavelohly the name of Justus Masengo as the 1st applicant, who/f ca^confidently say, signed the said notice as the 1st applicants. The^rgst^l signatures on the said notice of application is not knowiWne^owners thereof. Counsel for the applicant conceded hat, in absences'of the names of the applicants in the notice of applicationyjttTcannot be ascertained who are the applicants. I sustain Forxal.explained hereinabove, I sustain all the preliminary objections and struck out this application for being incompetent. Dated at Dar es Salaam this 25th day of February 2022. B.E.K. Mganga JUDGE 14