ABADIAH SELEHE v DODOMA WINE COMPANY LIMITED 1990 TLR 113 (HC)

 

ABADIAH SELEHE v DODOMA WINE COMPANY LIMITED 1990 TLR 113 (HC)

Court High Court of Tanzania - Dodoma

Judge Masanche J

28 August, 1990 F

Flynote

Civil Practice and Procedure - Prerogative orders - Discretionary remedy - When

they may issue.

-Headnote

This was an ex-parte chamber application for leave to apply for orders of certiorari

and mandamus. Full facts G appear in the ruling.

Held: (i) An order of mandamus is a discretionary remedy. As a general rule the court

will refuse to issue the order if there is another convenient and feasible remedy

within the reach of the applicant; H

(ii) Certiorari being a discretionary remedy for courts to issue cannot be issued

in a case where there is already a contractual relationship between landlord and

tenant, a relationship of a commercial or business nature. The I recourse to the

courts of law to adjudicate on the breaches of contract would be better procedure.

1990 TLR p114

MASANCHE J

Case Information

A Order accordingly.

[zJDz]Judgment

Masanche, J.: This is an ex-parte chamber application for leave to apply for an order

of certiorari and mandamus. It is accompanied by an affidavit. The affidavit is

however not an elegant one. This is not surprising B because as I came to discover

later, the applicant is pursuing the matter himself without the assistance of a lawyer.

From the affidavit and indeed entire record, I gather the following facts:

That the applicant got employed by Dodoma Wine company (popularly known as

DOWICO) as Laboratory C Assistant Grade II and was a Production Supervisor in

the wine production section. Sometime at the end of December, 1986, it was

discovered that each time workers reported for duty in the morning, they found wine

making equipment in disarray, suggesting that some other people had been using the

equipment the previous night. D It became clear that a group of workers were

making wine outside normal working hours, and this wine got smuggled out of the

gate and got sold in town.

Then, one day, the applicant and two other members of staff found some undergrade

wine in a shop in town. That E wine was not standard wine made by DOWICO. All

these happenings never got reported to the Management which got annoyed, it seems,

and dismissed the applicant from his job. There was a second worker who also got

dismissed but it is not known how he is pursuing his case.

It is that dismissal that the applicant is aggrieved of.

F The matter went to a Conciliation Board and it appears the applicant lost the case.

He appealed to the Minister for Labour against the decision of the Conciliation Board,

confirming the dismissal by the Management. Unfortunately, the appeal was not

taken up as the application was out of time in so appealing. It is, therefore, G against

all such unsuccessful attempts that the applicant has decided to come to the High

Court and pursue the matter by way of certiorari and mandamus.

The law about orders of certiorari and mandamus is quite clear in this country, and I

can do no better than quote my brother Samatta J. (as he then was) in the case of

Moris Onyango v The Senior Investigating Officer H Customs Department Mbeya

Criminal Application No. 25 of 1981; wherein he said:

It is entirely correct preposition to say that an order of mandamus is a discretionary

remedy. The order is not one of right and it is not issued as a matter of course. The

purpose of the order is to supply defects of justice. It will therefore issue I where

there is no

1990 TLR p115

specific legal remedy for enforcing the specific legal right claimed or where, although

there is an alternative legal A remedy, such mode of redress is considered by the

court to be less convenient, beneficial and effectual. As a general rule the court will

refuse to issue the order if there is another convenient or feasible remedy within the

reach of the applicant (Emphasis Supplied) (Also see the case of Lakaru v Town

Director (Arusha) (1986) TLR page 326.) B

Again in the case of Assistant Registrar of Buildings v Frederick Kibwana Criminal

Appeal No. 1 of 1978 (Court of Appeal) the Court there has said: C

Certiorari being a discretionary remedy for courts to issue cannot be issued in a case

where there is already a contractual relationship between landlord and tenant, a

relationship of a commercial or business nature. The recourse D to the courts of law

to adjudicate on the breaches of contract would be better procedure.

In this instant matter before me, the applicant was a worker, employed by DOWICO.

There was, therefore, a E contractual relationship between him and DOWICO a

contract of service. If, therefore, the applicant, feels that he has been unjustly

dismissed, he may sue the employer for wrongful dismissal. In short, therefore, there

is a remedy and a forum. Leave to apply for orders of certiorari and mandamus is

refused. F

Order accordingly.

1990 TLR p115

G