agnes samwel mollel another vs tanzania breweries ltd 2009 tzhc 134 29 september 2009

IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL CASE NO. 4 OF 2 0 0 8 AGNES SAMWEL MOLLEL .................................. 1st PLAINTIFF EMMANUEL SAM W EL.......................................... 2 nd PLAINTIFF - Versus - TANZANIA BREWERIES LTD ...................................DEFENDANT Dated the 18th August, & 2 9 th September 2 0 0 9 -- - . .J- _ ■ RULING Before Mmilla, B. M. J.: This ruling is a result o f the preliminary objections raised by the legal officer o f the defendant, Tanzania Breweries Ltd. against the plaint purportedly instituted by Agness Sainwel Mollel and Emm anuel Samwel. The preliminary points raised are as follows:- (i) That this honourable court has no jurisdiction to determine the suit. (ii) That the plaint contravenes Order X X X I rule 1 and 2 o f the Civ il Procedure Code. (iii) That the plaint contravenes section 5 and 6 o f the Basic Rights and Duties Enforcement Act Cap. 3 o f the Revised Edit ion, 2002. 1 (iv) That the plaint violates Order V I rule 15 and Order V II rule 1 o f the Code. (v) That the plaint is not endorsed which is against the provisions o f section 44(1) o f the A dvocates A ct Cap.34 o f the Revised Edition, 2002 . The sixth preliminary point o f objection has been raised later. It alleges that the joint reply to the written statement o f defence is defect ive. The preliminary objections are being disposed of by w ay of written submissions. 1 propose to dispose o f these preliminary points o f law seriatim. That said, the ground touching on the jurisdiction o f the court to try the case comes first. The defendant’ s legal officer has maintained that this court has no jurisdiction to try this case because the dispute between the parties is based on the terms and conditions o f an em ploym ent contract between the first plaintiff and the defendant, hence that it was a trade dispute which ought to have been properly referred to the Industrial Court. On her part, the first plaintiff maintains that t he suit is based on a tort. With the greatest respect to the plaintiffs, I am unable to agree to what they are saying. The contents o f paragraph 4 o f the plaint indicate that the first plaintiff was defendant’ s em ployee, which indeed is the starting point of the relationship between the two. This has further revealed itself in 2 paragraphs 9 and 23 o f the plaint. T o begin with, paragraph 9 states that:- “ That the 2nd plaintiff has the right o f treatment as per Condition o f Em ploym ent as stipulated in Condition o f E m p loym ent Manual in paragraph 12.2 o f the Company which provides for Medical Treatment to its employees and dependants” . I have checked annexture P4 which is an extract o f the Em ploym ent Manual o f the defendant com pany. While I find that paragraph 12.2 o f the Manual is less relevant to what she is putting forward, I find that paragraph 12.1 o f that Manual is relevant. It provides that.:-* ‘"The com pany shall provide medical treatment for all em ployees and their families at its dispensaries at approved clinics/hospitals on cost sharing basis at rates to be determined from time to time by the Management after consultation with the U nion” . On the other hand, she states in paragraph 23 that she was forced to resort to early retirement because o f the acts o f the defendant. Further, the reliefs sought under paragraphs 33 and 36 o f the plaint confirm that the cause o f action relates to the terms and conditions o f em ploym ent o f contract between the first plaintiff and the defendant as aforesaid. In paragraph 33 o f the plaint the plaintiffs are talking about loss o f salary and appendage allowance, housing allowance and other entitlements all 3 o f which reflect on the em ploym ent contract between the first plaintiff and the defendant. Similarly, items 1 and 2 o f paragraph 36 o f the plaint are supportive o f the fact that the cause o f action relates to the terms and conditions o f em ploym ent contract between the first plaintiff and the defendant. Paragraph 36 items 1 and 2 provide that:- “ 1) A declaration that the defendant administration actions/decisions which were made by virtue of employment contract are unconstitutional and therefore void in so far as thev discriminate and vitiate the right to life against the first plaintiff and the second plaintiff to live freely as human being from any disease. 2) A declaration that the plaintiffs are entitled to be paid compensation, damages and due to cancellation and violat ion o f the right to life of 2nd plaintiff.” Thus, it is plain that the rights which the plaintiffs are talking about in this suit stem from the relationship which existed between the first plaintiff and the defendant to which the second plaintiff was a beneficiary in terms o f paragraph 12.1 o f the Manual having he been the son o f the first plaintiff. In the views o f this court, her contention that the suit is based on tort is a far fetched idea and is misleading. 4 It is beyond controversy that the dispute between the parties arose in 2004, well before the com m encem ent o f the E m p loym en t and Labour Relations Act and Labour Institut ions Act, which becam e operational 011 20th December, 2006 b y virtue o f G. N. No. 1 o f 2007. Tt follows therefore, that the matter fell within the purview o f Employment Legislations which were in place before the new L abour Legislations came into effect. Under the Industrial Court Act, Cap. 60 o f the Revised Edition, 2002, any matter which qualified to be a trade dispute was required to be referred to that court for trial. The immediate question is; did it therefore qualify to be a t rade dispute? The answer to the above posed question resides in section 3 o f the Industrial Court A ct under w hich that phrase is defined as:- “ "trade dispute” means any dispute between an em ployer and employees or an em ployee in the em ploym ent o f that em ployer connected with the em ploym ent or non-em ploym ent or the terms o f the employ ment, or with the conditions o f labour o f any o f those employees or such an em ployee.” Having said that the cause o f action relates to the terms and conditions o f em ploym ent contract between the parties and is a trade dispute; the next question is; does this court have original jurisdiction to try such case. 5 There are a number o f authorities which state that the High Court lias no original jurisdiction to entertain trade disputes. The cases in this line include Tambweni Al)(lalla & 89 others v. National Social Security Fund, Civil Appeal No.33 of 2000, Court of Appeal (T ), Dar es Salaam Registry (unreported), H. Bernad’s Hospital Company Ltd. v. Dr. Linus Maemba Mhila Cliuwa, Commercial Case No. 57 of 2004, Dar es Salaam Registry (unreported), Makamba Mshindo Mwaruka & Others v. Tanzania Telecommunication Company Limited & Another, Civil Case No. 174 of 2003, and Rachel Mwalukasa v. C.R.D.B. Bank Limited, Civil Case No. 246 of 2000, High Court of Tanzania, Dar es Salaam Registry (unreported), just to mention some. The long queue o f the above cases seemed to borrow aleaf from the case o f Tambweni Abdalla, (supra) in which the Court o f Appeal held that “ Tt is clear that to us that trade disputes have to follow- that prescribed procedure and there is no room for going to court straight. The High Court has no original jurisdiction to entertain trade disputes. Such matters are dealt with in accordance with the A c t ” . The courts’ stand had never changed at the time when the new labour legislations mentioned above came into being. Since the matter fell within the purview o f E m ploym ent Legislations which were in place before the new Labour Legislations came into effect as aforesaid, this court has no original jurisdiction. T he first ground o f objection is thus upheld. 6 The second ground o f objection alleges that the plaint contravenes order X X X I rules 1 and 2 o f the Code. This order prescribes suits by or against minors and persons o f unsound mind. While rule 1 o f order X X X I o f the Code directs for a minor to sue b y next friend, rule 2 o f that order provides for every suit by a minor to be instituted in his name by a person who shall be called the next friend o f a minor. By extension, the provisions o f rules 1 and 2 o f this order apply to persons o f unsound mind as enacted under rule 15 o f that same order. That rule provides t hat “ T he provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be o f unsound mind and to person who though not so adjudged are found by the court on inquiry, by reason or unsoundness o f mind or mental infirmity, to be incapable o f protecting their interests when suing or being sued.” In our instant case, the second plaintiff in this suit is expressed to be a person o f unsound m ind/mentally retarded person. As submitted by the defendant’ s legal officer, this is reflected in paragraphs 2, 6 and in a number o f other paragraphs which concern psychiatric treatment which the second plaintiff had been attending. Paragraph 31 o f the plaint is particular that the second plaintiff is a mentally retarded person. The first plaintiff has submitted in this regard, basing on the provisions o f order 1 rule 8(1) o f the Code, that she is entit led to represent the second 7 plaintiff because she has an interest in the suit. As properly submitted bv the defendant’ s legal officer, rule 8(1) o f order 1 o f the Code prov ides for representative suits whose procedure is detailed there under. It provides that:- “ (1) W here there are numerous person having the same interest in one suit, one or more o f such persons may, with the permission o f the court, sue or be sued, or may defend, in such suit, on behalf o f or for the benefit o f all persons so interested; but the court shall in such case give, at the plaintiffs expense, notice o f the institution o f the suit to all such persons either by personal service or, where from the number o f persons or any other cause such service is not reasonably practicable, b y public advertisement, as the court in each case rnav direct.” The import o f rule 8 (1) o f order 1 o f the Code was discussed in the case o f Lujuna Sliubi Ballonzi, Senior v. Registered Trustees o f Cliania Clia Mapinduzi 1996 T L R 203. It was held in that case that:- “ A lthough the plaint does not expressly say so, it is plain that the plaintiff has purported to file the suit on behalf o f himself and also on behalf o f all Tanzanians who are not members o f the ruling party; but as the suit has been filed without adopting the procedure laid dow n in Order I Rule 8 o f the Civil Procedure Code. 8 1966, for instituting representative suits, it is incom petent in law.” It is beyond dispute that the 1st plaintiff did not adhere to the procedure o f instituting representative suits covered in rule 8 (1) o f the Code as aforesaid as no leave o f the court was sought and granted to institute such proceedings. It remains to be said that since the second plaintiff cannot be sued or sue in his own name but through a next friend, or a guardian ad litem in view^ o f his mental state, then joining him in this suit without following the procedure renders the suit incompetent. Thus, this ground too is meritorious and is upheld. The third ground o f objection is that the plaint contravenes section 5 and 6 o f the Basic and Duties Enforcement Act Cap.3 o f the Revised Edit ion, 2002. It has been submitted in support o f this ground that basing on the contents of paragraphs 34 and 35 of the plaint, matters of unconstitutionality o f the acts o f the defendant have been raised. These two paragraphs state that:- “ 34. The Defendant’ s action to cancel and refuse the 1st plaintiff and 2nd plaintiff right to medical treatment is total denial o f human rights, a serious violation o f human to life (sic). As this state o f affairs rises / a rose from the provisions o f the Constitution o f the United Republic (of Tanzania) 1977 (as amended). It is proposed to 9 request the High Court o f Tanzania to declare such actions to be unconstitutional and therefore void. 35. That the specific provisions in part III o f Chapter one o f the Constitution o f the United (R epublic) of Tanzania, 1977 (as amended) which (is) o f the basis o f the 1st plaintiff and second plaintiff suit are article 13(4) and 14.” It is quite unfortunate that the first plaintiff has not responded to the submission o f the defendant’ s legal officer in respect o f the above. In this cou rt’ s view, this ground too is well founded. W hile section 4 confers on a party the right to apply to the High Court for redress, sections 5 directs for applications o f this kind to be made by petition section and 6 prescribes the contents o f the petition. Section 5 o f that Act provides that:- 44An application to the High Court in pursuance o f section 4 shall be made b y petition to be filed in the appropriate Registry o f the High Court b y originating sum m ons.” On the other hand, section 6 thereto provides that:- “ A petition made under this Act shall set o u t - 10 (a) the name and address o f the petitioner; (b) the name and address o f each person against w hom redress is sought; (c) the grounds upon which redress is sought; (d) the specific sections in Part I II o f Chapter One o f he Constitution w hich are the basis o f the petition; (e) particulars o f the facts, but not the evidence to prove such facts, relied on; and (f) the nature o f the redress sought.” It is ipsa factor certain therefore tliat the first plaintiff did not com ply with such requirements. In the circumstances, this ground too has merits and is upheld. The fourth ground o f objection is that the plaint violates order V I rule 15 and Order V II rule 1 o f the Code. It has been submitted in support o f this ground that the verification clause in the plaint is defective for failure to indicate the place and date when it was verified, adding that the purported verification clause does not meet the qualities set up under Order V I ride 15 o f the Code. He fortified his arguments by citing Civil Case No. 183 o f 2006 between Dar es Salaam Water and Sewerage Corporation v. R o m b o Green View Investment Ltd., High Court ( T ) , Dar es Salaam Registry (unreported). In that case, the court held that the verification clause in the affidavit was 11 defective and was struck out. The defendant’ s legal officer is o f the view that the verification clause in the plaint suffers a similar defect. On this, the first plaintiff has responded generally that the defendant is em ploying technicalities in the case for he does not agree that the verification clause is defective. Order VI rule 15 prescribes for a proper verification. That provision states that:- 44 15 (1) Save as otherwise provided b y any law for the time being in force, every pleading shall be verified at the foot b y the party or by one o f the parties pleading or by some other person proved to the satisfaction o f the court to be acquainted w ith the facts o f the case. (2) The person verifying shall specify, b y reference to the numbered paragraphs o f the pleading, what he verifies o f his own knowledge and what he verified upon information received and believed to be true. (3) The verification shall be signed b y the person making it and shall state the date on which and the place at w hich it was signed.” It is plain from the record that the first plaintiff in this case did not com ply with the requirement imposed b y this provision. In the premises, 12 the verification clause in the plaint is defective and is bound to be struck out. The fifth ground o f objection alleges that the plaint was not endorsed contrary to section 44(1) o f the Advocates Act C ap.341 o f the Revised Edition, 2002. In his submission on the point, the defendant’ s legal officer has stated that due to such defect, the plaint ought to have not been admitted as provided under subsection (2) o f Cap. 341. He sought support on this from the case o f Halaal Products Ltd. v. Napkin Manufacturers Ltd. and 4 Others, Land Case No.215 of 2004, High Court (T ) Dar es Salaam Registry (unreported) in which he has said, it was expressed that failure to endorse as drawers offends the provisions o f section 44 (1) o f Cap 341. Section 44 (1) o f the said A ct w hich provides that:- “ (1) Every person who draws or prepares any instrument in contravention o f section 43 shall endorse or cause to be endorsed thereon his name and address; and any such person om itting so to do or falsely endorsing or causing to be endorsed any o f the said requirements shall be liable on conviction to a fine not exceeding two hundred shillings.” Subsection (2) o f section 44 o f that A ct provides that:- 13 “ (2) It shall not be lawful for any registering authority to accept or recognise any instrument unless it purports to hear the name o f the person who prepared it endorsed thereon.” It is a fact that the plaint in the present case was not endorsed by the plaintiff to express that they were the ones who drew the same. This, as submitted, is contrary to the above cited law. A situation like this facing the parties in the present case was encountered b y the court in the case o f Halaal Products Ltd. in which it was held that:- “ 1 would swim Mr. Mkali’ s current. But going by what is 011 record I make a right about twin! I say so simply because the document in the file titled 44Plaint” drawn by “ Maleta & Ndum baro A dvocates T ancot House, Ground Floor, Sokoine D rive/P am ba R oad, P .O .B ox 40900, Dar es Salaam” has not been signed by them as drawers o f the said docum ent, which omission in my considered view offends section 44 o f the A dvocates Ordinance Cap. 341. It is a rule o f practice that all draw ers o f documents have to sign them before filing; otherwise it is unlaw ful to recognize them ” . 14 Tt goes without saying therefore that same fate applies to the instant case. Therefore, in terms o f section 44(2) o f Cap. 341, the plaint was unlawfully received. This ground too succeeds. The last ground alleges that the joint reply to the written statement o f defence is defective. In his submission, to w hich I agree, the defendant’ s legal officer has stated that the docum ent purporting to be a reply to the written statement o f defence is in the form o f submission. Indeed, this is the form in which the said reply is. This is, to say the least, a strange docum ent to the pleadings family. Besides, the said document contains laws and evidence and not facts as required b y Order V I o f the Code. In view o f the above, it is held to be defective and must be struck out. In conclusion, for reasons contained in this ruling all the six preliminary objections are upheld. The suit is struck out. I make no order as to costs in view7 o f this cou rt’ s ruling o f 13.6.2006 which granted plaintiffs leave to file as suit as a pauper and you are all aware o f it. (Sg'l) Mmilla, B.M. Judge 25.9.2009 Date: 29/9/2009 Coram; B. M. Mmilla, J. Plaintiff: Present. For the Defendant: Mr. Kolimba (Personnel Officer). B/c: Olivia. 15 Court: Ruling delivered in the presence o f the first plaintiff hut in the absence o f the second plaintiff on the one hand, and Mr. Kolim ba 011 the other. AT ARLSHA (sgd ) Minilla, B.M. Judge 29. 9. 2009 , ' t 3 r -----\ - . \ . 1 certifiyfPiat^liW is a true copy o ijh e original. -i / 'U ' A fesl & ? * ( -'& ■ G. HERBERT DISTRICT REGISTRAR ARUSHA BMM/jn. 16