abdul swamadu mohamed 2 others vs dawasa 2 others 2022 tzhcld 27 18 february 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 318 OF 2021 BETWEEN ABDUL SWAMADU MOHAMED . .... 1 ^/APPLICANT KASSIM MWANGA.... ..... 2nd APPLICANT JOHN J. MWAKISOLE ..3?d APPLICANT AND DAR ES SALAAM WATER AND SEWEREGE AUTHORITY (DAWASA) (Disestablished)/- DARES SALAM WATER SUPPLY ANDJANITATION AUTHORITY (DAWASA)(EstaBlished).................... 1st RESPONDENT DAR ES SALAAM WATER'ANO'^EWEREAGE C0RP0RATI0N(DAWAS60)(Disestablished)........ 2nd RESPONDENT RULING Datetof Last Order: 10/02/2022 Date of'Jqdgement: 18/02/2022 B.E.K, Mqanqa, J In 2012 applicants and 989 others who are not part to this application all being employees of the respondents were retrenched. On 20th December 2012, applicants and the said 989 others filed Labour i Dispute No. CMA/DSM/ILA/818/12 to the Commission for Mediation and Arbitration henceforth CMA challenging their retrenchment. Being alert that they were out of time for 12 years and 29 days, they filed an application for condonation. On 13th March 2013, Msuri, A, arbitrator after hearing submissions made on behalf of the applicants and the respondents delivered his ruling dismissing their ^application0 for condonation. Aggrieved by that decision and being out of^time, on 31st August 2021, applicants filed a notice of application supported with an affidav extension of time withlnCvhich to file revision application so that the said ruling can/be\revised. On 1st October 2021, respondents filed a notice of opposition^and a counter affidavit.On 8th November 2021, respondents filed a notice of preliminary objections 1.1. The Commission of Mediation and Arbitration (here in CMA) e e^/nec&the Labour Dispute between the parties without having jurisdictionito do so. 2.2. The)appiicant's application is incompetent before this Honorable court contravenes the provisions of Rule 24(3) (d) of the Labour Court Rules Government Notice No. 106 of2007. When the application was called for hearing of these preliminary objections, parties prayed the same to be argued by way of written submiss'ons, a prayer which was granted. 2 In arguing the 1st ground, Ms. Zakia Seleman Mroy, Principal officer of the respondents, submitted that applicants were Public Servants and that, in terms of Section 32A of the Public Service Act as amended by Written Laws Miscellaneous Amendment Act No.3 of 2016, they were supposed to exhaust remedies provided for under the Public Service Act before filing the dispute to CMA. Ms. Mroy cited Jh^case^o^^/ex Gabriel Kazungu & 2others v. Tanzania Electric Supply Company Ltd. Rev.No.40/2020 (unreported), Godfrey Ndigambo v Tanzania Ports Authority, Rev.No.772/2019 (unreported) and Tanzania National Roads Agency v BrightonZKazoba and Julius Charles, Rev.No. 16/2018 (unreported) to supportrher submission. She concluded that, CMA had no jurisdiction to entertain the dispute between the applicants and the respondents. On the 22? grpund, Ms. Mroy, submitted that the application is incompetenpas-dt contravenes the provision of Rule 24(3)(d) of the Labour Court Rules, GN. No. 106 of 2007 that requires the affidavit in support? of the notice of application to contain reliefs. Ms. Mroy cited case of Sultan and 134 Others vs Dar es salaam Water and Sewerage Corporation and Dares salaam Water and Sanitation Authority, Miscellaneous Application No. 148 of 2020 (unreported). She 3 insisted that the omission to include reliefs in the affidavit rendered the application incompetent. In response, Mr. Symphorian Revelian Kitare, advocate for the applicants, submitted that it is not disputed that applicants were Public Servants. Counsel for the applicants submitted that Sectiorr32A of the Public Service Act (supra) came into force on 16th November 2016>while applicants filed the dispute at CMA prior to coming into^force of the said Act. Co or the applicants submitted further^^aL/fazz/n^t/'s’ case, (supra), Godfrey Ndingambo's case Tanzania National Road Agency's case, (supra) cited (by^Ms. Mroy for the respondents were held per incuriam. \\ Z? Regarding the 2n^poij^t of Preliminary objection, Mr. Kitare, counsel for the applicant's-submitted that paragraph 18 of the affidavit of o the applicants^Gontains reliefs sought. Therefore, the respondent intends to misleacfthe^court. Mr. Kitare submitted that Sultan's case, (Supra), and\\^itanga's case (supra) cited by the respondent are distinguishable and not applicable to the application at hand. In rejoinder, Counsel for the respondent reiterated her submission in chief and prayed that the application be dismissed. 4 In this ruling I will first deal with the 2nd ground relating to absence of reliefs in the affidavit by the applicants. It is evidently in paragraph 18 of the app icant's affidavit that they are seeking extension of time within which to file an application for revision. I will therefore not belabor much on it. It suffices to say that, arguments by Ms. Mroy for the respondents have no merit. \\ In the 1st ground it was contended by the respondents that CMA ha n to deal with the dispute filed^^he applicants. I am not sure as to whether Ms. Roy for the^esp^ndent in raising this purported preliminary objection knew, theprayer of the applicants or she raised it just for the sakeXgf raising a preliminary objection. Unfortunately, counsel for^the applicant was caught unprepared as a result wasted much of^s^time to deal with a none point of preliminary object s^cleaTin/my mind that applicants are seeking extension of time before this-court. Whether CMA had jurisdiction or not, is an issue to^be raised^before the court in the revisional stage if the application is granted^ From where I am standing, that cannot be a preliminary objection to be determined by this court in this application. Determination of that issue at this stage will be a preemption of the revision. That invitation strongly cannot be entertained now. All cases 5 cited on behalf of the respondent are irrelevant. I will not waste my precious time to consider them. All said and done, and, in the upshot, I dismiss all preliminary objections for want of merit. 6