19971106 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL CASE NO. 45 OF 1997 THE ORGANIZATION OF TANZANIA FREE TRADE UNIONS (OTTU) (ON BEHALF IN MEMBERS EMPLOYER OF KILIMANJARO HOTEL LTD ..... APPELLANT I VERSUS THE KILIMANJARO HOTELS COMPANY LIMITED .. RESPONDENT R U L I N G MSUMI, JK: This is an application for temporary injunction. The applicant is a trade union registered under the name of the Organisation of Tanzania Trade Unions or commonly referred as OTTU. On behalf of its members who are employed by the respondent company, the applicant filed a suit praying for among C~ other reliefs, Order restraining the defendant company from changing its ownership till such time that proper provision has been made for the employees. In this application the applicant is requesting the court to issue a temporary injunction against the respondent restraining it from changing the ownership of the company pending determinati@:n -of the main suit. . ~~: This application is supported by the affidavit of Eliamlisi Elia who is one of the officers of the plaintiff organisation. Paragraphs 4 and 5 state the two grounds on which the application is based. This is what ~.~~;~ ·.~~~ ~;·~:~~~If.~ 'I"~,~;::⇒~,';, ;;c'C "''""Aaj (,~'il:?-i-~;-r_:~<' '·~. -'.7-'f.~• :-· 2 the deponent says: 4> Further, that the Defendant has accU:inulat_ed - ,,_,, -· :the plaintiff member PPF, NPF, Credit Uniori ,· Insiifance and Labour Charge contributions by failing to remit them for a number of years. A copy of the Defendant management meeting '. ____ ·__ _:_acknowJ..ed.g-i-ng--failure in remitting. the said ,{~ ·, co'n::f'.iibution is' annexed hereto as arihexture •< ,'r; '."' "A1~';,,. and -~laintif f craves leave to r_ef er: it ai p~'tt of this :kif fidavit. 5. Further, that on the balance of convenience, the plaintiff's members stand to suffer more if an order for temporary injunction is not granted than the Defendant will suffer if it is granted. Without prejudice to the counter affidavit of the respondent's Personnel Manager and Administrative Manager one Maternus Jeroniuro Lusesa, a preliminary objection based on the following three legal issues was raised by Mr Mkoba, counsel· for the respondent: 1. That having been declared a specified Public Corporation under the Public Corporation Act as amended by Ac~ ,, 1 No. 16 of 1993, the suit . against the respondent upon which this application rests was wrongly preferred and cannot stand. 3 2. That the suit upon which this application is founded was wrongly filed for want of cause of action. 3. That the affidavit supporting the application offends the provisions of Order 19 of the Civil Procedure Code, 1996 thus it is non- maintainable on that ground. It is amazingly noticeable that there has been no reply on behalf of the applicant on any of these issues. The written submission of Dr Lamwai, counsel for the applicant confiningly addressed itself to the merits of the application. Had these issues been matters of fact I would have declared them uncontrovertedly proved. However, because they are legal issues, they have to be considered and decided upon, absence of reply from the respondent notwithstanding. Starting with the first issue it is evident that the respondent company is a Specified Public Corporation. It is one of the ten parastatal organisations declared to be Specified Public Corporation under Government Notice No.322 of 26/10/96. According to section 43(1) of the Public Corporation Act the legal effect of this declaration is to vest the Presidential Parastatal Sector Reform Commission with power to act as the official receiver of the respondent company with all rights and power of a receiver appointed under the Bankrupt Ordinance. Among others the Commission is empowered under section 39(2) of 4 the Act to: {g) hold discussions with the members of the Board and officers and employees or their representatives of the specified public corporation with a view to achieving a fair, reasonable and harmonious restructuring of that public corporation; (h) determine, in consultation with responsible ministries, fair and reasonable severance, pension and other payment arrangements that may be appropriate following restructuring of the specified public corporation. The commission is also empowered under section 40 to change ownership of a specified public corporation consequent to restructuring on condition that it gets the approval of the government. From these provisions it means that as from 26/10/96 the respondent company ceased to have substantial powers in the r' determination of its affairs. Such powers are statutorily vested in the Commission. As a company, respondent is legally incapable of effecting the acts against which the restraining orders are sought both in the main suit and in this application. The right person against which these reliefs may be enforced is the Commission. Both the main suit and this application are misconceived in so far as they have been preferred against a wrong person. In other words the applicant has no cause of 5 action against the respondent for the prayed reliefs. The effect of this finding is to uphold the first two issues raised in the preliminary objection. The third issue is equally formidable. In the verification clause the deponent just stated indiscriminately that what is stated in the five paragraphs of his affidavit is true to the best of his own knowledge and belief. It was mandatory for him to specify facts which are to his own knowledge and those which are based on his belief and reveal the source of his belief as provided under Order 19 rule 3 of the Civil Procedure Code. In conclusion all the three issues raised in the preliminary objectibn are sustained~·· For the reason that the ap~licants have no cause of action against the respondent both the plaint and the application are rejected. Costs of the respondent to be born by the applicant. JAJI KIONGOZI 6/11/97 For the Applicant: Dr Tenga For the Respondent: Mkoba