Court name
High Court of Tanzania

Christopher Gasper & Others vs Tanzania Harbours Authority () [1997] TZHC 21 (17 November 1997);

Law report citations
1997 TLR 301 (TZHC)
Media neutral citation
[1997] TZHC 21
Coram
Bubeshi, J.

Bubeshi J:
D In course of hearing this suit, Mr Lyimo learned counsel for the defendants has raised two preliminary objections on law. First that this being a labour dispute, it is covered by the Security of Employment Act, Cap 574 and Industrial Court Act, 1967 as amended by Act 2 of 1993. Mr Lyimo has argued that redundancy is covered under s 6(1)(g)8 of Caps 574 and ordinary courts are E therefore barred to hear such claims by virtue ss 28 and 42 of same Act. Similarly that, in terms of s 40(1) of the Industrial Court Act, such claims cannot be heard by ordinary courts. Mr Lyimo therefore is questioning the jurisdiction of this court to hear such a matter. The court was referred to F the case of Kitundu Sisal Estates v Shing (1) and Mohamed v General Manager Kunduchi (2). Mr Lyimo submitted that the appropriate procedure has been lain down under s 4 read together with ss 1 and 2 of the Employment Ordinance.
On the issue of redundancy he submitted that the same is not one of the contractual matters; citing G as an authority in point the decision by the Court of Appeal in the case of Mohamed Kondo & 11 Others v Attorney General (3). Secondly Mr Lyimo attacked the plaint for being bad in law in that it contravenes Ord 6 Rule 15; that the rectification is not dated and neither is it shown where it was verified. Further he complained that Order 1 Rule 8 was not fully complied with by the plaintiff in that H after leave was granted, the court should have issued public notices of institution of the suit to all such persons. He submitted that no such publication has been done and yet the number of the persons affected is about one thousand seven hundred people . Mr Lyimo submitted that in I absence of a proper notice and its service, the essence of Ord 1 Rule 8 is

defeated and some one thousand interested persons have been left out. He prayed for the plaint to A be struck out.
Dr Mwakyembe for the plaintiff did not agree. He submitted that the matter before this court is purely contractual -- that it concerns a purported agreement between plaintiff and defendant and that there is no reliance on the Security of Employment Act nor the Employment Ordinance. B
Dr Mwakyembe contended that it was erroneous to suggest that retrenchment is synonymous with termination or dismissal, which fall under Cap 574. He stressed that retrenchment is a contractual matter and it is based on an agreement between employer and employee. C
On verification Dr Mwakyembe was of the view that in event there were mistakes, this could be corrected -- Rule 17 of Ord 8. As to the public notice or publication Dr Mwakyembe submitted that leave of court and been obtained to file a representative suit and a list of those interested has been D accepted by the court therefore public notice/publication has been dispensed with. He also added that this court has the power to order parties to be joined or struck out -- Ord 1 Rules (9) and (10). And were fact of a misjoinder of parties cannot be a reason for the denial of ones rights. E
In reply Mr Lyimo reiterated that the plaintiffs have not fully complied with Rule 8 of Ord 1 which is mandatory, and no leave to amend the plaint has been sought. Mr Lyimo attacked the list attached to the plaint in that it contains names which are not counter-signed. F
Mr Lyimo was of the view that since there are out there some one thousand workers interested in this matter a published notice will be material in this regard.
The issues before this court are two, namely, whether this court has jurisdiction and if so the G plaintiff's plaint is properly verified and that the provisions of Ord 1 Rule 8 have been complied with.
I have had time to peruse the plaint -- and the plaintiff's complaint is against what they prefer to call as retrenchment I do not think this is similar to termination or dismissal. In my view retrenchment is synonymous with redundancy. The issue of redundancy may fall under the Industrial Court Act, H although there is no specific provision that places the issue of redundancy under the Industrial Court Act and therefore employees are free to go to ordinary courts or the Industrial Court where issues of redundancies or retrenchment are concerned. I

A I must at this juncture state that the cited authorities by Mr Lyimo dealt with issues of summary dismissal while here the issue is retrenchment and the procedure adopted by the employer Tanzania Harbours Authority. These employees were not dismissed but they were retrenched. The two situations are quite different and I find the cases quoted of little help, if any, to the matter at hand.
B On the defective plaint and lack of public notice. Order 1 Rule (1) is clear, it states:
   `Where there are numerous persons having the same interest in one suit, one or more of such persons may, with C the permission of the court sue or be sued . . . on behalf of . . . all persons interested. But the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public   D advertisement, as the court in each case may direct' (emphasis mine)
The essence of this rule is therefore that the `identities of the other persons interested in this claim must be known to the court, although a representative suit is instituted on their behalf. Necessary E because the court is under duty to give notice of the institution of the suit to all such persons and secondly, the doctrine of res judicata applies all such persons' as per Samatta J, as he then was in (PC) Civil Appeal No 74 of 1985.
F It is apparent therefore that failure to comply with Rule 8 in whole in fatal despite the fact that leave was granted. The attached list does not help the plaintiff in that it cannot waive the requirement of Rule 8 cited above.
In premises I uphold the second preliminary objection raised by the defendant. In the event the plaintiff option to pursue this claim in this court, it is mandatory that Rule 8 be fully complied with. G Claim dismissed with costs to the defendant.

A