achelis tanganyika ltd vs benedict m sembo 2021 tzhcld 461 12 november 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 253 OF 2020 BETWEEN ACHELIS (TANGANYIKA) LIMITED........................................... APPLICANT VERSUS BENEDICT M. SEMBO............................................................RESPONDENT RULING Date of Last Order: 08/10/2021 Date of Judgment: 12/11/2021 I, Arufani, J. This ruling emanates from points of Preliminary Objection (herein after referred as the P.O.) raised by the personal representative for the respondent to the effect that:- i. The applicant's advocate has no locus stand to prosecute the matter before this Honourable Court. icant's application is contrary to Rule 24 (2) of the abour Court Rules, GN. No. 106 of 2007. During hearing of the P.O. the applicant was represented by Mr. Dennis Mwesiga, Learned Advocate and the respondent was represented by Mr. Hemedi Omari, Personal Representative. The respondent's personal representative prayed to abandon the first P.O i and submitted on the remaining P.O. which states the application is contravening Rule 24 (2) of the Labour Court Rules, GN. No. 106 of 2007 (hereinafter referred as the Rules). He stated that the cited rule requires the notice of application to substantially comply with Form No. 4 of the Rules found in the schedule to the Rules and shall be signed by the party bringing the application in the court. X ■ He argued that, as the notice of application filed in the court shows the applicant appointed advocate Dennis Mwesiga to represent them in the matter and the applicant in the matter is Achelis (Tanganyika) Limited then the application is defective as the notice of application and notice of representation was signed by advocate Dennis Mwesiga who is not the applicant in the application before the court but the advocate for the applicant. The representative for the respondent referred the court to the two cases of Zulekha Kalluta v. City Square Restaurant, Rev. % No. 215 of 2020 (unreported) and Jonas William Changala & 431 Others v. DAWASCO & another, Revision No. 587 of 2018 (unreported) where the applications were struck out by the court because of non-compliance with the provisions of the Rules and 2 prayed the court to struck out the present application with no leave to refile. In his response, the counsel for the applicant distinguished the two cases of Zulekha Kalluta and Jonas William Changala cited by the representative for the respondent on the reason that, the same were not based on Rule 24 (2) of the Rules upon which the P.O. is based. He stated that Rule 24 (2) of the Rules requires the notice of application to be signed by the applicant. He argued that, if you read section 56 (1) of the Labour Institutions Act CAP 300 R.E 2019 and Rule 43 (1) (a) and (b) of the Rules he has cited in his % affidavit you will find the application has met the legal requirements as they show he has a power to represent the applicant in the matter. He went on submitting that, the court has been properly moved by Section 91 of the Employment and Labour Relations Act, CAP 366 R.E 2019 and Rule 28 of the Rules. He argued that, it will not be proper for the court to penalise the applicant for failure to sign the notice of application while Rule 43 of the Rules allows the applicant to be represented in the matter by an advocate. He therefore prayed 3 the point of preliminary objection raised by the representative for the respondent to be overruled and the matter to proceed on merit. In his rejoinder, the respondent's representative argued that, section 91 referred by the counsel for the applicant in his argument is irrelevant in the matter at hand as is not dealing with jurisdiction of the court to entertain the matter but it provides for time to file application for revision before the High Court. He argued that, Section 56 provides for who can represent a party in a case. He contended that Dennis Mwesiga is not a party to the matter as the parties are Achelis (Tanganyika) Ltd. v. Benedict M. Sambo. He % said the counsel for the applicant is trying to mislead the court as he is not a party in the matter and there is no proof that he was appointed by the applicant to represent them in the matter. V I He argued that, the gist of citing the cases he has cited in his submission in chief is to show the course which can be taken by the ■ court when there is violation of the court rules. He submitted that as the counsel for the applicant has admitted he is the one signed the notice of application and notice of representation the application is improperly before the court. He prayed the court to find the 4 application is incompetent as the advocates are registered to represent parties in a case and not to take role of the parties. He argued further that, as the counsel for the applicant said he has cited section 56 (1) of Labour Institutions Act and Rule 43 (1) of the Rules in paragraph 1 of his affidavit to show he was appointed to represent the applicant in the matter that renders the affidavit defective as legal matters are not allowed to be cited in an affidavit. In conclusion Mr. Hemedi prayed for the court to uphold the point of objection he has raised and the application be struck out for being incompetent. Having carefully considered the rival arguments from both sides in relation to the point of preliminary objection raised and argued by the parties' representatives the court has found the issue to determine in this matter is whether the application at hand was made in violation of Rule 24 (2) of the Rules. In order to be able to determine the above issue properly it is pertinent to start by having a look into what is provided in the provision of the law stated it has been violated in the present application. The referred provision of the 5 law states that:- "The notice of application shall substantially comply with Form No. 4 in the schedule to these rules, signed by the party bringing the application and filed ..." [Emphasis added]. The wording of the above quoted provision of the law and specifically the bolded part shows the notice of application is required to be signed by the party bringing and filing the application in the court. The question to answer here is who is the party bringing the application to the court in the present application. The court has IL 1 found the answer can be found at Rule 2 (2) of the Rules which define the party to mean:- ’>1 party to court proceedings and includes a person representing a party in terms of section 56 of the Act and section 88 of the Employment and Labour Relations Act, 2004." Although it is stated in the above quoted provision of the law that a party to court proceedings includes a person representing a party but that provision was given clear interpretation by the court in the case of Simon John V. BRAC Tanzania Finance Ltd. Misc. Appl. No. 60 of 2018 (unreported) which was cited in the case of 6 Rose Ongara & 2 Others v. National Health Insurance Fund, Rev. No. 237/2019 (unreported) and stated that:- "The persons who are directly involved or interested in any act, affair, contract, transaction or legal proceeding; opposing litigants.... Persons who enter into a contract or other transactions are considered parties to the agreement. When a dispute results in litigation, the litigants are called parties to the lawsuit... "[Emphasis added]. I fully subscribe to the definitions of the word party given in the above excerpt as I believe a party to a case is the one who bring the case to the court and who is directly affected by the outcome of the •v case. Therefore, in labour matters the parties are the employer and the employee as either of them initiates the proceedings. I am not persuaded to follow the opinion that, even the advocate or a personal representative is a party to the proceedings. To the view of this court the role of an advocate or personal representative in a case is to represent a party to a case as provided under section 56 of CAP 300 and section 88 of the ELRA. There is no way it can be said an advocate or a personal representative of a party in a case can automatically become a party in a court proceeding or sign the documents as a party in a court proceeding. The above view 7 of this court is being bolstered by the view taken in the case of Simon John (supra), where it was stated that:- "It is my view a party to court proceedings is the one who brings the case to the court, and that representative of the party to proceedings before this court has no automatic right to sign pleadings on behalf of a party to the proceedings because legally, he/she is not a party to these proceedings. I would say the drafter of this piece of iegisiation might overlooked on this point that in no any reason an advocate will assume the right and responsibilities of a party in Court proceedings including execution of awards and orders of the Court. In most of labour court r 1 proceedings, parties are either employer or employee and V this is considered in a wider perspective. That, not only representative of those employers and employees will be entitled to sign the pleadings including notice of application but also, they will be bound by the final court decision and have to execute the orders thereto if are regarded as parties ■ to this courts proceeding as defined under Rule 2 (2) of the Labour Court Rules. Thus, when they want to authorize any person to assume the parties' position, they have to follow the legal procedures...." From the position of the law stated hereinabove the court has found in relation to the application at hand that, the counsel for the applicant wrongly assumed the position of a party bringing the 8 application in the court as he signed the notice of application and notice of representation while he is not a party bringing the application as provided under Rule 24 (2) of the Rules. The court has considered the argument by the counsel for the applicant that as he was appointed under section 56 of the Labour Institutions Act, CAP 300 R.E 2019 and Rule 43 (1) of the Rules to represent the applicant in the matter, then the applicant's application is properly before the court but find his argument is not supported by the position of the law stated hereinabove. To the contrary the court is in agreement with the argument W jh made by the respondent's representative that the present application is defective as its notice of application and notice of representation were signed by the advocate for the applicant instead of being signed by a person authorized to sign those documents on behalf of the applicant as required by the law. The above finding caused the court to come to the settled view that, the point of preliminary objection raised by the representative for the respondent is meritorious and deserve to be upheld. Therefore, the point of preliminary objection raised by the respondent's representative is hereby upheld and the application is 9 accordingly struck out for being incompetent. However, for the interest of justice, the applicant is granted leave of fourteen (14) days from the date of being issued with this ruling to refile in the court the application signed by the right person. It is so ordered. Dated at Dar_es Salaam this 12th day of November, 2021. _ z? A JUDGE Court: Ruling delivered today 12th day of November, 2021 in the absence of the applicant and in the presence of Mr. Hemedi Omari, J:;- Personal Representative for the Respondent. io