Bubeshi J:
On 4 October 1994 Messrs Tanzania Portland Cement Company Ltd hereinafter to be known as the original applicant, filed through their counsel, Mr Mhina of the Legal C Consultancy Services Committee University of Dar es Salaam, an application for prerogative orders of certiorari and mandamus against the Minister for Labour. This application was supported by the affidavit of one Gervas Mazukulu Mbonimpa, an D administrative officer in the original applicant's company.
Before this application was heard the second applicants Pius Sangali and 16 others filed an application to have their names added as the second respondents in the first application. It is not in dispute that these second applicants were formerly employees of E the original applicant and had their services terminated by their employer effective 13 January 1993. Subsequently the Conciliation Board ordered the applicant to reinstate them. As the first applicant was not happy with that decision referred the matter to the Minister, who also confirmed the Board's decision. Hence the application by the first F application for prerogative orders of certiorari and mandamus.
Whilst that application was yet to be heard, the second applicants who were formerly employees of the first applicants filed an application to have their names joined as G second respondents-the first respondent is of course the Minister for Labour. The original applicants have forcefully hoisted this application.
In their submission the new applicants have annexed to their application an affidavit by one Pius Sangali, the relevant paragraphs read as follows: H
`2. That I am authorised by my fellow employees above to depose the facts of this case to which I am very conversant with.
4. That Pius Sangali and 15 others mentioned in para 3 of Mbonimpa's affidavit are the very I people mentioned in para 1 of this affidavit.
A 5. That the relief sought in the application of Tanzania Portland Cement Co Ltd arises out of the alleged termination or dismissal of Pius Sangali and 15 others and there is common questions of law and fact which arise between the three parties.
6. That we are interested as to all the relief claimed in the application against the Minister for Labour. B
7. That in the circumstances, our presence in court as second respondents is necessary in order to enable the Court to effectually and completely adjudicate upon and settle all the questions involved in the application by Tanzania Portland Cement Co Ltd.' C
This application has been preferred under s 95, Order 1 or 3, 4, 5, 8, 10(2), (4) of the Civil Procedure Code 1966.
At the outset the original applicants have raised several preliminary objections. It may be D pertinent to state from here. Mr Mhina learned counsel for the original applicants:
(a) That Mr Mrugaruga an officer in the office of the Labour Commissioner has no corus standi in this present application. That the Labour Commissioner E appearance is restricted in matters of appeal under the Employment Ordinance. Mr Mhina also attacked the presence of Mr Mrugaruga contending that there has been no satisfactory evidence of due authorisation from the F instant applicants. And as a result the belated power of attorney that was filed in court ex-post facto cannot cure the irregularity of incompetence as it was defective, it had no stamp duty and also the applicants themselves do normally attend court.
(b) The application by the instant applicants is improperly before this court for want G of payment of court fees. The instant applicants have relied on s 143 of the Employment Ordinance as exempting them from payment of court fees. Mr Mhina for the original applicants is contending that since the instant applicants chamber summons was brought under the provisions of the Civil Procedure HCode the reliance of exemption under s 143 of the Employment Ordinance was out of place.
Third objection is grounded on the view that there is no common question of law or fact that could arise if separate proceedings were brought against the Minister and the I instant applicants, in terms of Order 1 Rule 3 of the Civil Procedure Code 1966. According to Mr
Mhina the instant applicants have made a bare allegation in para 5 of their affidavit but A questions of fact do not normally arise in proceedings respecting prerogative orders. In addition thereto these common questions of law as would affect both the Minister and the instant applicants have not been spelt out. B
The fourth objection raised by the original applicants is that the orders of certiorari and mandamus which the original applicants have applied for are in the nature of public law remedies. They do not lie against individuals as such but against public bodies and officers exercising statutory fractions. C
The fifth objection raised by the original applicants is the instant applicants cannot at this juncture seek to be joined as co-respondents when leave for application for orders of mandamus and certiorari was granted by this court to the original applicant on 15 D September 1994. And it was granted on the understanding that there are mable issues of law engaging the original applicant and the Minister. The instant applicants are strangers to the said leave. Hence the instant applicants endeavour to join the proceedings is belated, an after though incompetent and with due respect a product of misguided advice. E
The seventh objection raised by the original applicants challenged the sworn affidavit by Pius Sangali particularly paras 5, 6 and 7 thereto as containing the kind of matters that a layman can be expected to have personal knowledge as claimed in para 9 of the affidavit. F
All in all the original applicants pray that this court dismiss the instant applicants with costs.
In their replies the instant application have replied to the preliminary objections as under.
It is their submission that there are common questions of law and facts which arise G between the three parties following the termination of the applicants Pius Sangali and 16 others. That the applicants believe that their presence in court as co-respondents is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the application by Tanzania Portland Cement Co Ltd. H The applicants contend that Mr Mrugaruga acting through the Labour Commissioner is duly authorised to represent the employees in court. They place reliance on the provisions of ss 8 and 141(1) of Employment Ordinance Cap 366 as amended by Act No 5 of 1969. Also under s 95, Ord 111 Rule 1, 2(a) and 6(2) of the CPC 1966. That Mr I Mrugaruga is holding the powers of attorney of Pius Sangali and 16 others and that a
certified copy of the power of attorney was filed in court as required by Order 111 Rule A 6(2) of the Civil Procedure Code 1966. The stamp duty was duly affixed to the instrument that was registered on 31 January 1995 by the Registrar of Titles.
Mr Mrugaruga has sought to distinguish their case with the case of Naiman Moiro v B Naicejlet Zablon (1) in that of the 17 donors of powers of attorneys not all are present in court. Therefore Mr Mrugaruga is presenting the instant applicants who are not in court.
Mr Mrugaruga is also challenging the application for orders of certiorari and mandamus on the basis that it is immature and improperly brought before the High Court because C the differences, questions or disputes arising from summary dismissal had first to pass through various stages before they can be entertained by the court.
At the very outset I wish to make it clear to the parties and in particular the instant D applicants that I am at this moment and time dealing with the preliminary objections as raised by the original applicants. The outcome of this shall determine whether the application for the prerogative orders shall be heard on merits or not. In that event I shall not attempt to answer Mr Mrugaruga's submissions on the merits of the application by the original applicants. E
Likewise Mr Mrugaruga submitted that it was their sincere belief that the instant applicants were exempted from payment of court fees in terms of s 143 of Employment Order Cap 366.
As explained earlier in my ruling the original applicant M/S Tanzania Portland Cement Co F Ltd had through their advocate Mr Mhina applied for and was granted leave to apply for prerogative orders of certiorari and mandamus. And indeed it was granted on the understanding that there are triable issues of law engaging the original applicants and the Minister. And indeed as submitted by Mr Mhina the instant applicants are strangers G to that leave and can it be said that there exist triable issues of law concerning the original applicants and the instant applicants? The instant applicants contend that there are and that para 5 of their affidavit bears them out. Paragraph 5 of Pius Sangali's affidavit filed in this court in support of an application to add the names of the second H defendant reads:
`5.That the relief sought in the application of Tanzania Portland Cement Co Ltd arises out of the alleged termination or dismissal of Pius Sangali and 15 others and there is common questions of I law and fact which arise between the three parties.'
I have had time to study their written submission but could not stick a finger on the A same. In the same vein I would uphold the original applicants last preliminary objection that the deponent was duly bound to disclose his legal source of information regarding his evokement in para 5. Non-observation of such rules may lead the Court to declare an B affidavit defective and hence no legal consequence.
Prerogative orders are public remedies touching upon questions of law. In this particular case the original applicants have applied for the prerogative orders of certiorari and mandamus in relation to the decision of the Minister for Labour dated 27 June 1994 C which enjoins the original applicant to re-instate the instant applicants. In my humble view the application filed by the original application challenges the Minister's decision to re-instate the instant applicants. Both the relief which are being sought and the grounds D on which the said reliefs are also sought would ultimately affect the instant applicants in one way or the other. One respondent here may be the Minister for Labour who is no doubt a public body for the purposes of this application. And orders sought for cannot be directed at the instant applicants but the public body in this case the Minister in relation E to his decision to reinstate the instant applicants. Can it seriously be argued that to join them as co-respondent in this application would affect the decision of the main application? To that question my considered view would be definitely no. And I say so F because the application is not directed at them as employees but the application is so directed against the Minister's decision. Hence their presence in court as co-respondents is not necessary that they will be affected by the decision of the application once it has been determined. In this regard I would hold that the decision G reached by my brother Judge Kyando in Tanzania Portland Cement Co Ltd v Mwihechi and Minister for Labour (2) has my full support. That application is almost on all forms with this instant application save that in the former the applicants had joined Mwihechi a former employee as a first respondent, whereas in the latter application the employees H are praying to be joined as co-respondents.
There were other preliminary points which had been raised by the original applicants. Such objections lay in the field of non-payment of the requisite court fees, Mr Mrugaruga appearance on behalf of the applicants including the power of attorney assigned to him I by the applicants. It was Mr Mrugaruga's submission that:
A `the employer does not like to see the face of Mr Mrugaruga in this case and that the applicants are prepared to go it alone or engage another representative if the Court so orders.'
Before I conclude I think it is the duty of this Court to put this matter straight with due respect to Mr Mrugaruga. I did not get the impression that the original applicants did not B wish him to appear in this case. And Mr Mrugaruga ascertains that his appearance in this case should not be the reason for dismissing the application, is in my humble view it should not. I am satisfied that each party has submitted some valid arguments to which I am highly indebted to. C
However, since I am inclined to uphold the preliminary objections raised by the original applicants I have not deemed it necessary to recount each and every objection. Suffice it to say I have after giving this matter a serious thought opined that the instant applicants presence as co-respondents is not necessary and in that regard I would dismiss their D application with costs.
E
