19870323 TZNH Dar es Salaam

\ IN THE HIGH ,..OURT OF TA 1'.'' ;ANIA ~ U ' s. ::3ALAA~1 c!VIL ,... ~. 3E NOo 4 OF 1i::,•_-; O.P. hAHENGE e,>0•••000000 PLAINTIFF s•ersus TANZANIA 2'._.MBIA · _ 'AY AUTHOS:ITY • •. OEFE:NOANT !...£._L I N G JWl1'1l1 ii., M•• Lo1cha, learned advocate for. the defeo:tant, ·had a preiiminary 1 " • • point to argue in this case, It is-.that·the c·ase·aga·1ns1: the deferdant . . ·, . • I • should be dismissed l:,acause the co\lrt ·has no jurisdietion· . to·hear ' it. . MriLaJd\l eontended that aceording to. p.aragraph 8 ot' the· plaint the plaintiff wa1 dis(ftissed "unl'.ier the security of enrplo~ent",and acco~ing ' to seod,Qft !8 of the Security of Employment Act no suit for summary disrntssa,. may be fi'le:d in a ci·✓ il Courto Mr. t.akha went on to submit t~t Order , Rule J;·:'of the c::vil Procedure Code requii-e•. the plaintiff to set o"t all the facts showing the l:: the court has ju:,isdictio.n~ · 8u1t thei-e wes nothing in .:-hz r.iluint to sho·1 that the plaintiff is ·not 4overed by sedtion 28 of the Stcurity of Employrrmt Aet, Mr. Lakha eont,ended., He submitted that .sn ,::-ttempt. was made ill\ the reply to the statement of defence to av~r tllet the plaintiff•~ employment was not unde.r the Security ot i:,npJ.v 1 :ne,nt h-.:c becaus~ the Plaintif'f was a ma!'-ager, He submitted further that such averment should have been done in' t:he plaint and not in the reply. and that unier Orr.ter 7, . Rule ll(c) the plaint should be rejected if from the ·statement in the plaint i t · !• barred by any law. He S\..,bmitted F!-nally that the ple1nt1ff was only an administrative assistant and no·t a manager anfJ he Eequested the suit \O be dis~1ssed under section 28 of the Security of £mp1oyment ~ct. ln reply, Mr. Maira le 1rne:d ac:,1ocate for the pteintiff said that ln the pJnint it h;,n · - ... ,..., ...... n ,..,., that the 4"!0U•t has j\.ll'isdic::t1on to ~W1t&i"- the suit and · '.'1a·t in pa;:-agraph 8 "of ithe plaint it was ple1ded tha-e the disrnissel was un;i.a•,.:1Al becevse the p1aintiff's con~~ d~ not entitle him to be. dismissed under the Security of ' Employment Act. He went Dn to point out thot the ouster of the jur:5.sdietion of the court was ,,,,_ade only where wor1<e~s had another venue wher, tlley could get redress. He submitted that· for non-JUWA1'A workers like rnanagars etb, the.tr venue wa-s not the Wor)(ers Committee. ' •....••.. /2 .. He emphasized t:hat the p:.-:d.nHff' -~ salary was shsoSOOQ/,= p.rn., well in excess of shs.740,'-., '.A·:--,.i.~,: .. a ,_·,-c. -"- .. :;_n,; fo::: anyone to be a JUWATA member. He sub,i t ted finally that the plain ti :f f could only come to court to seek recicess c nd. hence the court had jurisdiction in this case. I a short n:-r,ly, rv:r-,Lakh~ contended that paragraph 10 of the plaint· toolc no cogniza,1c,:? of &ection 28 of the Security of Employment Act and that paragraph 8 simply said that {·he dismissal was unlawful and in breach of contract, because no not.5.ce was given. H~ submi~ted that there . was no averment thu, the plaintiff was a ~oon unionized staff''. Mr, Lakha also su;J,1itted that Mrc Maira was wron<ff in saying that the S,:curity of Employment Act applied to Workers with under shs. 740/= p.m. as salary. He referred the court to sections 28 and 4 of the Sec~ty of Employment Act., He submitted tbat it had not been shown that the . Plaintiff was employed in a managerial capm:!.·,y and ~as sueh the Security of Employment Act applled to him, He asked the suit to be dismissed. After hearing argumP.nts fro:.,, bot!:l counsels I have come up with the following fo!' con~.ider.ation 2··:r:-. decisior.,., I have to deeide whether the suit should be dis., ,is:.::eJ be,::ause,·the pleadings did not state facts showing that the co·...:1·-c: has juriscti..-· tion after firJt deciding whether the pleadings dld net in fact state fer ts sh~•..,,ing that the court has j uriSdictiono I have no doubt in my the provisions of Order 7 Rule l(f) which read: "The plain·: shall conta:i..:1 the following particulars:- the facts showL:.g -that ._:ie c :--.1rt hac: jur~ ~d.i.ctlonM·, have not been c,~::11):,ied ;..-L::h in thir:; casco I am of the opinion that after averring in parngr2;.:·: 8 cf the plaint that the plaintiff wae summarily dismissed under the Security of Em,loyment Act the plaint should have ;one on furthe,:· to stctt:;. that tb-2 Secur5.ty of Employmeet Aet did not apply to the pJaintiffo What we find in paragraph 10 does not '. ::4t1mfy, in my vtew, the requ1.re::ments of Order. 7 Rule 1( f) because paragraph '10 of i::ho pl3i>t :·imply stat?.G where the eefendant carries an 0 his work, where ?::he r:ause cf ,:.c:·U.on arose and the value of the suit. Clearly, parag!'.'u·•;h 10 de;::::: r:, t st,~te far:!ts showing that the court has 0 jurisdictio:1 in this r·ase ir. v:iev' of sec t.i.o;; 28 of the Security of &ftploymentAc·t:r. 'i'.:.G';}·.~.c +_:--:"" ju.r.:, sr1:tct1.on of the Courts in cases .-.; of summary dismissalso F1..trthe!"i".!0r:-e :'>·er" {'.),-::- pleadings in the p:l-aint the suit appears tu :::-e i)ar::eJ '0y s-2··: 1:·icn 2t': of -the Security of Employment Act. Ac~ordtng ·;o on,er "/ Rule 1:.Cc) the plaint must be rejected "where the suitn·_)p_ear-3 fJ:orn the stateiner:t in the plaint to_ be barred by any law .. " ThP ruJ e talks of rt the sta tem2:1t in plaint", end this 0. 0 D O O e e •• /3. ,, f 3 'J can o~ly mean just that and there ir. nd 2.~oom to include a reply to a written statefnent of defence in this rule~ From what I have said above I reject the plaint with costs. I will however go on to consider the next point in rase I am wrong in what I have rul,ed, . , and that is whether the plaintiff's empJ.cyment was not covered by the Security of Employment f:.r:t., N.lro Mai!:"a argued that the plaintiff was not a union membe·r i.e. a member of JUWATA and that his salary i,,.~as shs.5000/c per month and that a JUWATA member's salary could.not ex~eed shs.740/=p.m • . He arg,ieg. 1 also that as a personnel officer the plaintlff wes· employecf,..in a managerial capacity and there~ore again not falling under the ambit _of the Seeurity of Employment Act. On the other hand, Mr. Lakha a;rgued that /1't was not true that Juwata members could not be in receipt of salaries abov:e _·.,4~/• p.m.• and that a personne:i. officer was an employee employ~ in the management of the business of his employer. ) As for .. the application of the Act to onry JUWATA members I can see - nothing in the Security of Employment Act to that effect. Section 28 of the Seeuri ty of Employment Act s ta teE' ~ - "Ne suit or other civil proceeding (other than proceedings to enforce a decision of the Minister or the Bnard on a reference under this Part) shall be entertained in any aivil court with regard to the summary diErr:issaJ. or. proposed summary dismissal, or deduction by way of J discipL;_:1-3.ry penalty from the wages, of an employee. 11 The word 11F.;mployee" is defined in section 4 of the Act as having the '!'eaning ascrilted to it in the Ernployme-:1t Ordinance exczpt that it do.es not include certain eategories of employc,es or ncny employee who, in the opinion of the LabOUI' Officer, is employed in the management of the business. of his ~TI\ploye.ll'" • The. question here now is whether the plaintiff was ani•employee ,.,. who in the opinion of the Labou.r- Officer is employed in the management of ~.J, of the business of his employer" as provided in section 4((1) ( e) o th_e Seeu_rity Employment Act as amended by Ac':. :~o 45 of 1969. The answer to this is ·\~·eai:ly in the negative because the paragraph talkS C"tf "in the opinion .,f ~e Labour Officer", and we do not have anything from the Labour Officer to / the effeet that. in the Labour Offi,:.:er' s opinion the plaintiff was ;employei ;,, in the management of the business of his employer. i• .,. It follrtws from the a-bove that ·che arguments put forward by the ~laintif.f',s counsel ,annot .surceed. As already deci<ied above the plaint is rejected;witb A. BAHATI JU!)Gt; --Court,. .... Ruling. delivered in precence of both CounselsG A. BAHATI ,i JUDGE DAR ES SALAAM 10th February, 1987 , f ' V I ~ertify tha".: it is a true end C'.'"'rrect C"PY -f the nriginal. III 1,-J:Q}O-" w pEPUTY REGISTRAR oar es salaam. 23rd M~reh, 1987.