bernad paul makunja vs lilian kibo high school 2020 tzhcld 67 17 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 345 OF 2018 BETWEEN BERNARD PAUL MAKUNJA................................. APPLICANT VERSUS LILIAN KIBO HIGH SCHOOL.......................... RESPONDENT RULING Date o f Last Order: 17/03/2020 Date o f Ruling: 17/04/2020 Aboud. J. This is an application moving the Court to exercise its revisional jurisdiction to revise and set aside the ruling of the Commission for Mediation and Arbitration (herein CMA) at Dar es Salaam in labour dispute No. CMA/DSM/KIN/R. 1378/17 by Hon. Fungo E. J. dated 01/05/2018. The application was made under the provision of section Rule 24 (1), 2 (a), (b), (c), (d), (e), (f), 3 (a), (b), (c) and (d) 24 (11) and Rule 28 (1) (c) (d) and (e) Rule 55 (1) (2) of the Labour Court Rules, 2007 GN No. 106 of 2007 (here forth Labour Court Rules). The respondent strongly opposed the application and raised five points of i preliminary objections which are the subject matter of this ruling. The raised points of preliminary objections are to the effect that:- (i) That the Notice of application and chamber summons are defective for non-citation of enabling provision of the law. (ii) That the Notice of application and chamber application are seeking orders against non-existing ruling. (iii) That the affidavit supporting the chamber summons is bad in law for containing a verification clause referring to non-existing paragraph. (iv) That the affidavit supporting the chamber summons is bad in law for containing material facts relating to termination of employment instead of material facts supporting the application. (v) That the affidavit supporting the chamber summons is bad in law for containing frivolous statements intending to mislead the court. At the hearing of the preliminary objections both parties were represented by learned counsels. Ms. Stella Simkoko was for the applicant whereas the respondent was represented by Mr. Eventus Mugyabuso. With leave of the court the matter proceeded by way of written submission. In his submission the respondent withdrew the second and fifth preliminary objections. Arguing in support of the first preliminary objection Mr. Eventus Mugyabuso submitted that, the applicant did not cite any provision of law that shows that this court is vested with jurisdiction to hear and determine the application. He referred the case of Citibank Tanzania Ltd. Vs. Tanzania Telecommunication Co. Ltd., Civ. Appl. No. 64 of 2003, CA where it was held that:- "In similar vein, since the applicant did not cite a specific subsection under section 4 of the Appellate Jurisdiction Act, 1979 as amended under which this court could exercise the revisional jurisdiction, the application is misconceived and incompetent. We sustain the preliminary objection with costs". He submitted that, the applicant misconceived the application of rule 28 (1) (c) (d) (e) of the Labour Court Rules in the present application. That in the application at hand there is no judgment sought to be revised. He added that, Rule 55 (2) of the Labour Court Rules cited by the applicant do not confer any jurisdiction to this court to entertain the matter at hand, it only confers power to the court to adopt appropriate procedure where the rules did not specifically provides for. He therefore urged the court to strike out the application as it was held in the case of Addison Mpangala Vs. The Minister for Labour and Youth Development, the Attorney General and Director-Agakhan Hospital, HC. DSM. Civ. Cause No. 68 of 2007 (unreported). On the second objection the learned counsel submitted that, as per the requirement of Rule 24 (2) (f) of the Labour Court Rules the application should be attached with a copy of ruling or order sought to be revised. However in the application at hand the applicant did not attach any order dated 01/05/2018 which he sought to be revised. With regards to the fourth objection the learned counsel submitted that, the affidavit in question violates Rule 24 (3) (b) of the Labour Court Rules since it did not state the material facts upon which the application is based. It simply set out grounds and facts constituting termination of employment which is contrary to the application at hand. Replying to the first objection the applicant submitted that, section 94 (1) (b) of the Act provides specifically for the powers of this court to revise an award and not a ruling. That the prudence of this court has directed as a matter of practice the citation for seeking a revision of a ruling is rule 28 (1) read together with rule 55 (1) and (2) of the Labour Court Rules. He submitted that the cases cited by the respondent are distinguishable in the case at hand. He said in the cited case of Citibank (supra) section 4 of the Appellate Jurisdiction Act was a mandatory provision to be cited, while in the present application rule 28 which confers power to the court to revise CMA's ruling has been cited. With regards to the objection that the impugned ruling is not attached he submitted that, it is not true since the said ruling has been annexed as BPM 4 as stated under paragraph 9 of the affidavit supporting the application. On the last preliminary objection Ms. Stella Simkoko submitted that, the necessary material facts to support the application are provided under paragraph 9 and 10 of the affidavit in question. In rejoinder the respondent reiterated his submission in chief. He added that the applicant did not state which specific provision moves the court to entertain the orders sought. On the second objection he submitted that the applicant did not address the root of the objection. That the applicant did not address if the ruling dated 01/05/2018 do exists while the attached ruling is dated 11/05/2018. On the last objection Mr. Eventus Mugyabuso insisted that the applicant failed to state the relevance of the material facts narrated from paragraph 1 to 8 of his affidavit. He argued that a single paragraph, which is 9 of the affidavit, is not capable of stating the material facts in a chronological order on which the application is based. The learned counsel hence urged the court to strike out this application. After going through court record pertaining to this application, the preliminary objections at hand, the relevant laws and parties' submissions with eyes of caution, I find the issues to be determined by the court are whether the notice of application and chamber summons cited the enabling provisions of the law, whether the notice of application and chamber application are seeking orders against non existing ruling and lastly is whether the affidavit supporting the application contains material facts which does not relate to the application at hand. On the first issue as to whether the notice of application and chamber summons cited the enabling provisions of the law, it is on the record that the applicant moved the court under the provisions cited in first paragraph of this ruling of which I find no reason to reproduce them. The respondent alleged that the provisions cited in the relevant documents do not confer power to this court to exercise its revisional jurisdiction and set aside the CMA's ruling. He contended that from the marginal note of Rule 28 is clear that relevant provision deals with revision of judgment and not ruling. The applicant strongly resisted this point of objection and submitted that the specific rule cited which confers powers to the court to determine the matter at hand is Rule 28 (1) (c) (d) and (e) of the Labour Court Rules. The 7 relevant rules are to the effect that:- "28 (1) The court may, on its own motion or on application by any party or interested person, call for the record of any proceedings which have been decided by any responsible person or body implementing the provisions of the Acts and in which no appeals lies or has been taken thereto, and if such responsible person or body appears:- (a)To have exercised jurisdiction not vested in it by law; or (b) To have failed to exercise jurisdiction so vested. (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity; or (d)That there has been an error material to the merits of the subject matter before such 8 responsible person or body involving injustice. (e) The Court may revise the proceedings and make such order as it deems fit." (Emphasis is mine) Let me put it clear that the marginal note is not part of the law as is provided under section 26 (2) of the Interpretation of Laws Act (Cap. 1 R. E. 2002), which says that, I quote:- "A marginal note or footnote to a written law and, notwithstanding subsection (1), a heading to a section, regulation, rule, by law, or clause of a written law shall be taken not to be part of the written law." (Emphasis is mine). Also according to the Black's Law Dictionary, third pocket edition of 2006 it defines the marginal note to mean "a brief notation, in the nature of a subheading, placed in the margin of a printed statute to give a brief indication of the matters dealt with in the section or subsection beside which it appears". From the above discussion therefore, the respondent counsel wrongly submitted to this court that marginal note forms part of the law, to wit Rule 28 of the Labour Court Rules. The drafters of the relevant rule, in my view they used the word judgment in its broader meaning to include courts and quas- judicial bodies final determination of the rights and obligations of the parties in a case. In this case it should be the ruling which was the final decision of the CMA from which this revision lies. On the basis of the above, I say without hesitation that this court is vested with powers to entertain the application by virtual of the provisions of Rule 28 as correctly cited by the applicant. This is the position of the court as had been elaborated in the case of Jumanne Z. Mitarya Vs. Trust St. Patrick School, Lab. Div. ARS Rev. No. 79 of 2013 [2014] LCCD 1, Rweyemamu J. (rtd) held that:- "Basically the employer has submitted that this court has no powers to revise a CMA decision under the cited rule 28 (1) of the Labour Court 10 Rules, because what is complained is not a CMA award. My decision is that Counsel for the employer misunderstands powers of this court under rule 28. Under the rule, the court has powers on its own motion or on application by any party or interested person...calls for the record of any proceedings. Where the responsible body... appears to have... (followed by sub-rules (a) to (e) of Rule 28 (1). A ruling or award of CMA is a proceeding. For that reason, I firmly decide that the employees had a right to seek revision of the CMA ruling". Therefore, in the circumstance of the case I find the court had been moved properly under the provision of Rule 28 and Rule 55 of the Labour Court Rules. The respondent in his submission only alleged that the court had not been moved properly but he did not provide any specific provision in which the applicant ought to have referred. As rightly submitted by the applicant section 91 and 94 of the Employment and Labour Relations Act [CAP 366 R.E 2019] confer powers to the court on revision of CMA award. The application at hand is not revision of an award it is revision of a ruling in which in my view falls under the provision of Rule 28 of the Labour Court Rules. Hence the respondent's first objection is overruled. On the second issue as to whether the notice of application and chamber summons are seeking orders against non-existing ruling, the respondent rightly submitted that in the notice of application and chamber summons the applicant referred the ruling dated 01/05/2018 while the impugned ruling attached dated 11/05/2018. I therefore fully agree with the respondent that, the applicant did not bother to address this issue in his submission. Ms. Stella Simkoko only submitted that the impugned ruling is annexed as "BPW". However, the Court have gone through the applicant's documents supporting the application and observed that as rightly submitted by the respondent in the notice of application and chamber summons the impugned ruling is dated 01/05/2018. The court further noted in the applicant's affidavit at paragraph 9 it was specifically mentioned that, the impugned ruling is dated 11/05/2018 which was also attached to this application. Under such circumstances is my view 12 that it is not true to say the applicant is seeking orders against non­ existing ruling. The difference in the relevant dates in question no doubt it was a mere typing error and, in my view its defects do not go to the root of the application. With due respect to the applicant's counsel the court failed to understand her response on this particular issue, it is either she did not notice the inconsistence of the dates of the ruling as they appear in the application or she acted arrogantly not to concede with the objection. However, regardless of the applicant's reason, for the interest of justice this court is of the view that the error can be amended since it was only a typing error. On the last issue as to whether the affidavit supporting the application contains material facts which does not relate to the application at hand, the respondent submitted that the applicant's affidavit violated Rule 24 (3) (b) of the Labour Court Rules. The relevant rule is to the effect that:- "A statement of the material facts in a chronological order on which the application is based". 13 I have gone through the affidavit in question; in my view the facts narrated are relevant to the application at hand. The applicant stated in his affidavit the material facts of which this application is based and is in accordance with the cited provision above. Therefore, I find the fourth preliminary objection has no merit. In the result the second preliminary objection is upheld and ordered that the amendment be done to cure the defects found in the application to wit, the notice of application and chamber summons be amended to indicate the correct date of the impugned ruling to read 11/05/2018 instead of 01/05/2018 as it appears in this application. It is so ordered. I.D. Aboud JUDGE 17/04/2020 14