access bank tanzania limited currently known as access microfinance bank tanzania limited v benedicta john bosco lindi 2024 tzhc 705 29 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LABOUR REVISION NO.65 OF 2022 ACCESS BANK TANZANIA LIMITED (CURRENTLY KNOWN AS ACCESS MICROFINANCE BANK TANZANIA LIMITED)............. APPLICANT VERSUS BENEDICTA JOHN BOSCO LINDI.......................... RESPONDENT RULING 21/11/2023 & 29/2/2024 ROBERT, J:- The applicant, Access Bank Tanzania Limited (currently known as Access Microfinance Bank Tanzania Limited), has sought a revision of the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/MZ/ILEM/67/2021/49/2021, which favoured the respondent, Benedicta John Bosco Lindi. Prior to the hearing of this application, the respondent raised several preliminary objections to the effect that:- (a) The application is incompetent for lack ofprior notice ofintention to lodge revision; i (b) That the application is incompetent for being deposed and sworn by incompetent person; (c) That the application is incompetent for being signed by incompetent person (d) This application is incompetent for being supported by defective affidavit which does not disclose source of information in its verification clause. When the objections came up for hearing, parties were represented by Messrs Patrick Suluba and Yuda Kavugushi, learned counsel for the applicant and respondent respectively. At the request of parties, hearing proceeded by way of written submissions. Submitting in support of the points of objection, Mr. Kavugushi opted to argue the first point of objection separately and the remaining points jointly. On the first ground of objection, he argued that, this application lacks competence due to the Applicant's failure to file a notice of intention to lodge labour revision (CMA F.10) and serve the notice on the Respondent. He contended that Regulation 34(1) of the Employment and Labour Relations (General) Regulations, G.N. No.47 of 2017 read together with the third schedule thereto mandates the filing and service of such notice, and non-compliance renders the application incompetent. To support his argument, he relied on the decision in the case of Unilever Tea 2 Tanzania Limited vs Paul Basondole, Labour Revision No. 14/2020 HC at Iringa (unreported) at page 8 and 9 where the court stated that the question of notice is not a point of technicality but a hand maid of justice and found the application incompetent before the court for being preferred without a legal notice. The learned Counsel for the Applicant countered this objection by asserting that the notice of intention to lodge labour revision was properly filed with the CMA on 10th October 2022, satisfying the informational purpose intended by Regulation 34(1). He argued that, even if there was non-service to the Respondent, the regulation does not explicitly prescribe the consequence of such non-service and that the aim of the regulation is to inform the CMA, which was accomplished. He maintained that the non-service of the notice to the Respondent does not vitiate the proceedings, citing the decision in Tanzania Revenue Authority vs Mulamuzi Byabusha, Revision No. 312 of 2021 where the Court decided that there is nothing in regulation 34 (1) which suggests that the application before becomes incompetent merely because, the CMA F.10 was not filed. He argued that the decision in the case of Unilever Tea Tanzania Limited vs Paul Basandole (supra) is distinguishable from this case as 3 the applicant in that case failed to file the CMA F.10 but in this case the applicant filed CMA F.10. Coming to the second ground of objection, counsel for the respondent argued that, the affidavit supporting the application is defective as it contains extraneous matters, hearsay, and emotional expressions. He cited the case of Jackline Ntuyabaliwe Mengi & 2 Others v Abdiel Reginald Mengi & 5 Others, Civil Application No 332/01 of 2021, where the Court held that affidavits are to be confined in facts and have to be free from extraneous matters. He argued that, paragraphs 1, 10, 11, and 12 are particularly contentious, as they include emotional and argumentative statements, breaching the rules of affidavit writing. In response, counsel for the applicant denied the presence of any extraneous matters in the affidavit. He submitted that, while the Respondent highlights minor defects in the affidavit, they do not invalidate the entire application. The defects, if any, can be cured under the Written Laws (Miscellaneous Amendments) Act, No. 3 of 2018, prioritizing substantive justice over procedural technicalities. Moreover, he maintained that the alleged offensive paragraphs, even if present, are inconsequential and can be expunged without compromising the application's substance. 4 To support his argument, he cited the case of Chadha & Company Advocates vs Arunaben Chaggan Chhita Ministry & 2 others, Civil Application No. 25 of 2013. On the third point of objection, counsel for the respondent argued that, the verification clause in the affidavit is improper, as the deponent claims personal knowledge of all facts despite being the Applicant's advocate. Such misleading verification breaches the requirements of affidavits, as established in Salima Vuai Foum vs Registrar of Cooperation and 3 others. The deponent's purported knowledge lacks credibility, rendering the affidavit defective and the application incompetent. In response, counsel for the applicant maintained that, the objection to the verification clause questions the truthfulness of the deponent, requiring evidence beyond the scope of preliminary objections. There is no information in the affidavit obtained from another person, and the objection is therefore unsubstantiated. Moreover, the deponent's knowledge extends from representing the Applicant throughout the proceedings, ensuring the affidavit's veracity. Lastly, counsel for the Respondent argued that, Rule 24(2) of the Labour Court Rules G.N. No. 106/2007 mandates the Applicant's signature 5 on the notice of revision, yet the notice in this application was signed by the Applicant's representative. He maintained that, this violation renders the application incompetent. The signature of a non-applicant on such a crucial document defies procedural requirements, warranting striking out of the application. In response, counsel for the applicant submitted that, the cited rule does not explicitly prohibit an advocate from signing the notice on behalf of the Applicant, especially when representing them throughout the proceedings. He argued that Advocate Patrick Suluba Kinyerero's signature is therefore legitimate, as he has been actively involved in the Applicant's representation. He maintained that, the objection lacks merit and should be dismissed. The Court has carefully considered the objections raised by the Respondent and the submissions of all parties. After careful consideration, the Court finds that, the objection regarding lack of prior notice of intention to lodge revision lacks substance as the CMA record shows that the applicant duly lodged the requisite notice with the CMA on 10th October, 2022. The Court agrees with the counsel for the applicant that the failure to serve the respondent with a copy of notice, while a procedural lapse, does not render the application incompetent and 6 Regulation 34(1) does not explicitly state the consequence of failure to serve the opposite party with the notice. In light of the decision in Tanzania Revenue Authority vs. Mulamuzi Byabusha, Revision No. 312 of 2021, this Court agrees that non-compliance with serving the notice does not automatically render the application incompetent. I therefore find no merit in this point of objection. Coming to the remaining points of objection, the Court observes that, the objections primarily revolve around the deponent's claim of personal knowledge of facts that, upon closer inspection, appear to be based on information received from the Applicant as well as the alleged incompetence of the application for being signed by incompetent person. To delve into the specifics, the Respondent contends that the deponent, an advocate for the Applicant, verified certain facts in the affidavit as being within his personal knowledge. Specifically, paragraphs 2 to 10 of the affidavit detail the historical facts surrounding the employment, termination, and subsequent legal proceedings between the parties. Upon examination, the Court notes that these paragraphs indeed contain information that the deponent, as an advocate, could not have had in his personal knowledge. These facts are intrinsically tied to the 7 relationship between the Applicant and the Respondent, and the deponent would likely have obtained this information from the Applicant or other sources. The verification clause of an affidavit plays a crucial role in ensuring the reliability of the information presented to the Court. It is a fundamental principle that affidavits should clearly distinguish between facts within the deponent's personal knowledge and those based on information or belief. Failure to adhere to this principle may render the affidavit defective. In the case of Salima Vuai Foum vs Registrar of Cooperation and 3 others (1995) TLR 75, the Court emphasized that when an affidavit is made on information, the source of information must be specified. Furthermore, the case of Jacqueline Ntuyabaliwe Mengi (supra) highlighted that a defective verification, where the source of information is not specified, can render the entire application incompetent. In light of the objections raised, the Court acknowledges the deficiencies in the verification clause of the affidavit. The deponent's claim of personal knowledge is inconsistent with the nature of the information provided in paragraphs 2 to 10. These paragraphs, which detail the 8 historical background and events leading to the termination of employment, are inherently based on information provided by the Applicant. The Respondent has suggested expunging these paragraphs from the affidavit. While this may address the issue of defective verification, it poses a significant challenge to the overall substance of the application. The information contained in these paragraphs forms the foundation for the Applicant's claim and provides context to the alleged injustices leading to the application for revision. In light of the above analysis, the Court finds it convenient to strike out this application and I hereby proceed to strike it out with costs. In the circumstances, I find no pressing need to delve into the remaining point of objection challenging the signing of the application by the advocate for the applicant. The applicant is at liberty to file a competent application with a proper verification clause. 9