20140109 TZHC Dar es Salaam1

IN THE HIGH,lcouRT of TANZANIA i

LABOUR DIVISION

AT DAR ES SALAAM 'I / ~ !i . / , . '\ / ' MISCELLANEOUS LABOU~ APPLICATION NO._ 158 Of 2013 . i ·. B~TWEEN . , . . I . , . BERNARD GINDO & 27 01'.HERS.............. ~ .. ~-. ........ APPLICANTS . . . · c.:~--~ i JeRSUS ...... ·.. / ~--- I_ Ii . _/ . .. ... . TOL GASES LTD .................. l ........•......./.•.•............ RESPONDENT . • i 1: . .. . ' RULING . , 11/12/2013 & 09/01/2014 . \)\',. J .I (1 I S~A.N.Wambura, J.\, r·. This is an application for 'leave J appeal to the Cou~ of Appeal brought under the provisions of Section 57 of the·Lab~~r Institutions Act No. 7/2007, Section 5(1) (c) of the Appellate jurisdi~,~i6n ~ct C~p · • lf I 1 1 Revi~_ion, Rule 25(a) of the Court of Appeal Rules, 2009 togethe~. with./Rule 24(1) \a~d 54 of the Labour Court Rules GN No. 106/2007. It is supported by an affi~avit of the applicant Bernard Gindo. The respondents thn,,j9f:1-;Jhe!;;'Mana\ling 9i+ctor Mr. Daniel Warungu filed a counter affidavit chal\engin~j:~t~e same. that:- (i) · . .· , lJhe ·application is offending I l They \also raised preliminary objection on grounds \t. e provisions of Order 1 Rule 8 and of Civtl · . · , ~rocedure Code and Rule 44 o~labour Court Rules. · · (ii) Tfl~affidavit is defective. \\ .. -~fter considering submissions by l::>qfh parties and the evidence on the record, I .. .will ctetermine the grounds of objection al :enumerated. I 1 .. ,• . .I I , 1.

Have the provisions of Order 1 Rule 8 of the Civil Procedure Code and . 1 Rule 44 of the Labour Court Rules, been offended? (a) I have noted that Mr. Mushi Sited the provisions of the Civil 'Procedure Code to cement their point of objectibn. Mr. Mosha Advocate for the applicant J ; submitted that the Civil Procedure C?de does not apply a,t this court. I am in agreement with the Mr. Mosha that (the Civil Proce~ure Code do~s not apply. ,I • Rule 55 (1) of the Labour Court ~ules provides. for adoption of the Civil :1 • Procedure Code where there is a lac~na in the labour l~ws. Since the provisions of Order 1 Rule 8 are inapplicable, tht gr:~nd is \Kus _acco/dingly dismissed. (b) Has leave of representation l>een filed?" .I . . It is the rule of practice that wher~,l + there are numerous persons with common . interest in a suit, with leave of th~ rcburi one person c·an ~ue or defend the suit on behalf of others. This has beeh 1emanated under Rule 44(2) of the Labour Court Rules which provides \hat:- -r . ,: "Rule 44 (2) Where there are nwrtrous persons having the same interest in a suit, one or more of such. persons maYJ with the peri#ission of the court appear and• behalf ' or defe1nb f ~ in such dispute on behalf . of of for the_ benefit bf all persons so interested, except that' the cowt &hall in such case give at the . ·•.complainants expense1✓ notice of the institution of ..

i:he suit to all such ife~sons either by perso_ns either personal service IJr practicable, by public 1 advertisement or oth rwise, as the court in each --case may direct" ' ./ [Emphasis is mine]. Mr. Mosha alleged that this diSA te emanated from , CMA and there was repres~ntation and the same was not ~~allenged before this, court. In the case of ' I I NISAKWISA & OTHERS VS GENERAL MANAGER G. T. V TANZANIA LIMITED Labour Dispute No. 8/2009 it was held t~at the applicants must have been consulted o~ I , 2 being represented and that such an order can only be made by the court. Thus the application was struck out of court for being incompetent. Likewise although this application is for leave to appeal to the Court of Appeal it is incompetent for want of leave of representation which ought to have been attached. As it is it is unknown as to how many persons want to appeal to the Court of Appeal.

2. Is the affidavit defective? The affidavit is not defective only that it does not represent the interest of the other alleged applicants. It is in support of the application filed by the applicant alone. So this ground cannot stand and is accordingly dismissed. In the circumstances, I find that thiJ application is bad in law for want of leave of representation and is accordingly struck 1ut of the court registry. · 1 - , s.~ura 09iOl/2014 ! l

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