20140328 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA ! LABOUR DIVISION AT DAR ES SALAAM (ORIGI::::s;::,N:~:;::: :::jt~:::;\,f· BIBI ANNA KISWAGALA & OTHERS.,l'i;;~'.i\,,,,. AP;(I~NT . VERSU~. '\i,::,::,:~::>,\:<• '•,:-:-. '-,;~-~ ~.;:. ..· ·./' '\:•,:,-_·<.\:-;:\RULING . . •... '•' ·,•.· <,.,,,. •,• 10/02/2014 8(/}8/0J/2()14.\ ·. ,:-· :,,, . ·- '; :. ,•'•;. ::: ; :·: ~ Abou~.J°('. ,''c . )f , ~~,;~ppjitation is made r,nder Section 91 (1) of the Em;lby~~'.~t a~d Labour Relation rct, No. 6 of 2004, and Rule 24 (1)(2) and 28 (1) of the Labour Gburt Rules G.N No. 106 of 2007. The applicant calls upon this cJurt to call for the record and revise the proceeding and to seJ aside the Award issued by the 1 late Hon. Mbaga, Commission for Mediation and Arbitration (CMA) in the CMA/DSM/ILA/1015/2009, dat~d 16/03/2010. The brief facts of this case are on 23/11/2009 the service of employment of the applicant and 2 other emplgyees were terminated on operational reasons. They referreQ,;::th:~;\c;omplaint 1 at CMA out of time prescribed under the Jc;10;= ='lh~rei&r~tlhey applied for extension of time which was 411sG2e~ssful. •.fhu;·· being aggrieved by the arbitrator decision they<~;;f:¢.r this~:revision. '<:::::,.;. ·,:r·· -:?·?·.... In the respondent's counte.r,affid~vit.;h~ .:,,raised three points :·::~: ·<· ·-:: '". .: ::• of preliminary objection that;,::::. \\ ··\.:: · '::.f ',',,. I. that the applic?)nt'~f,,:appliqa'ti6n is defective for being brought uhd~r wrong provisions of the law. II. the .9pp1ltan~;~'applic~tion ·,:._.· •'.. .,. .. lacks merit. . III. t~e · ,i:ippfft9nt's')application is incurably defective in ·'.,.: ... . '·:... : I ter~s . 9f ,,Rule 44( 1) and/i (2) of the Labour Court Rule 1 ·. 'G~:,t,(Nq/106/2007. / I ·•.•'· I ' The, ···applicant was represented by his personal represen~tive Mr. Sammy KaterJa, while the respondent was I I under the service of his personal representative Mr. Maenga. 2 In his submission on first point, of objection Mr. Maenga said, · the position of the law on any apJlication that is brought under wrong provisions of law is such ~pplication cannot stand and move the court. The present application has been brought under Section 91(1) of the Employment and Labour Rel~tioh~=:ict, No. 6 ...~.~:' ·.-.~. of 2004 and Rule 24(1) and (2) and Rule 28(-ij\:;~f th~:~ Lg_pour Courts Rules, he said by the applicant QW:~:nt to ·-,:h:av~\::~-i-te a specific subsection that is, Rule 28 (1.)4~fth~r(a},.(b),(c), or (d), 1 which point out legal issues invoking,_f6f\tb~1;;:xcl:u~i~e jurisdiction of honorable court to determiner~::He:;::~aio th~·-::,~osition of the law . -:,/,.. , 't, I ··\:\ \··::1./f was well settled by the Co~)-t of . A,ppe:~I in Ilabila Industries ·,·::.~-. 1'~::r,,~:~~.:,..-::::) :· and 2 Others vs. Taozani,f ·Investment Bank & another's, ·>:\ .. ~:._ •, ·'.;,;:·-.:·~:/ . Civil Application ·N9. .lS~/ 2004 (Unreported) where the · -:·, . -:,.,_ ·: .•. ·•:,. I Court of Appectl·.:beldJhat;:= ··.·:;::,;- -::, " ....~: it, is\~omp,on knowledge that the rules of prgct!d~re::'.::i>'~irig handmaids of justice should -=::':'.:: cd~1plie~:f:i/with by each and every body, _.whether the case involved a constitutional ''\::::;:·· j right as the appellant urged or not, so long as the provision of rules ... are mandatory going to the root of the matter, there is no way in which 3 the appellant could be exempted from complying with the rules . .!" The same position was expounded 1in the case of Naibu Katibu ! I Mkuu (CCM) vs. Muhammad Ibrahim Versi &;,;:;~ons Civil Application No. 3 of 2003 Court of Appeal at:Z~:~·ii.~ar, and 1 in Fadhila Yahaya vs. DPP Criminal.;,.)~;·;fic;~ti~.fliP:No. ~J(~:·. : :~::\,,. ~ :.:· •· 1/2008, Court of Appeal at Aa::µsha,.,, (Unre:ported), ~{::·::····\> ::\; Nsekela,J had this to say; ·-: ~ ?·•.. ·''\::-. ·~:::(\;.\·\,....··. '• .;:-. "It is now settled law that:'\vro~:g ·-~itation of a provision of law or::/r~ie ~:Hi~I{ ~~~ application has been ma~e ;":·r~nd~rs >./::the application incompetent~' .•. .... • In response }0r:~, San,niy Katerega in regard to ground one he narrate,t~~:: b~~kg~btlhd: of this lease, and at last he said Rule 28(1) . c~r· \L_'•:<,.. ···:. t: I 1 .~mpowers: this hono rable Court to reverse the prg~eeding'? ::~_nd):'rnake such orden as it deemed fit, and prayed thi~·::.~ppli~itio~>to be allowed. ;~__, ·. I have gone through the submission by both parties and the court records and it is clear ai correctly submitted by the respondent's personal representative that the applicant application was brought on under Section 91(1) of the 4 ! Employment and Labour Relation Act, No. 6 of 2004 and Rule 24(1) and (2) and Rule 28(1) of the Labour Courts Rules. The point advanced by Mr. Maenga was failure by the Applicant to cite properly specific sub rules of the Rule 28 (1) of the Labour .,. Court ... :~;:,t.\ Rules, GN 106 of 2007, which is the Rule that ghJes::: the High Court powers to revise the decision of any per~b:os o:~:<:~:>0qy in implementing the provision of the Acts, (T(~ Em~livw~t.r and Labour Relation Act, No. 6 of 2004) in whkh\no ··a:ppeal lies or has been taken thereto. , ;'.\:::};}::'.:::::::::\,;. ··\:- :-;•. :,t.•.·.·..·: '••:::, . . ' ·•::~'.:·.. It is a clear rule of the.J<:t;t .·.· ·~.,. ·. ~rid:·;:6rc1:~tlte . '.•. . .. that non citation, ',': wrong citation, or incomplete::citatioq_ pf:frthe enabling provision of the law render the attiSliC?tti~;(=i:tl.~O~~etent. This legal position was clearly expound:~ci:::hy'.:".-the :Court of Appeal in among other cases that of:/Ch;;al,a -<~ha··waalimu Tanzania vs. AG Civil Application ·.,:• :·::1$,2/itio·S,:::(Unreported), . . where the Court at page 1z,.:::states':a~;fhflows; {\_,-•,;,·.. "\::::•... < •,•· ·." ... ~·~f Non citation and or wrong citation of an . ~ ' ·.• •.. I en~tiling provision rend.er the proceedings incompetent. Decision oti this Court in which 1 this principle of law has been enunciated are now legendary .... " 5 Stressing the need to cite specific provision, the Court of Appeal I in the Case of Citibank Tanzania Vs. Tanzania Telecommunications Company Limited and 4 others, Civil Application No. 64 of 2003, the Court stated as follows; .' "... .. . The omission in citing th~t> prdper provision of the rule relating to,:31 ,.tft <;;fer~~~~//:• ·•.;:..,.,. ·.·' and worse still the error in citi,ng; a-::::wrong a:nd inapplicable rule in support(P,~:~~~il~:·.;~Pl.~cation ::: :::1::::n~:;~:'~~~;$:,!::~ 2 is not in our view, a tech11icatitvilai1liig within ~0~~ :; the ve: ro~~ ~~:::Jhe ·,m~tter. We ~eject (the) 1 contention. that.the error was technical .... " ' Also .. the,·.•· .·· ,, above · ..·.decision was cited in Abdulhamid .•;. ,_. Ramadh~pi ::: Mj9.P1~b & others vs. All Salim Ali, Civil ::::::... . .... .:.•:' -•::: . ·::_:··: . I Applica.tiort: ~.or 42 of 2004, €ourt of Appeal at Dar es s~laam.,. >1:rt thi~ •;case the court rbferred its decision in Almasi Eddi;·\ ;M~1nyi .,, vs. National Bank of Commerce and Another, Civil Application No. ~8 of 1998, Court of Appeal at Dar es Salaam (Unreported) and that of National Bank of Commerce vs. Sanuradin Meghji Civil Application No. 20 6 . '' of 1997, Court of Appeal at Dar es Salaam {Unreported), where it said; "This Court has consistently held that in applications the applicant has to citf;t,. the e'::~~:::•••::'.•.l relevant provision from which ti)_¢/=.:-· co;µrt derives the power to hear and d~ie';~ih~ ~h~r/> application ........... Definitely t~j$~::~i~plicati~:fi:, i~- t:}:.-,·•-.·ft:- '❖\::, not properly before thi'~::::::, -:,~S9-~rt/·\::; it is . i·1t··1s hereby incompetent for the abQvt:f:,r~~~0:~'s,• . ,,. . ·,; t:·····:·.\_: :.!~ ·::,_ struck out". .- ,: ~•. ·,:: :-. In the circumstances a'nq i~·-::•the~::Hght of the above cited authorities I found t~iS• grOvnd w1lti merit. I also found no need In tD~ _ _rJsult'°\l]_e·:·remedy available to the court in such )\ ":::: ··:<... .': . I situatiqQ ·is, /to- ; ·:have the application struck out for being inq)m;ii~n~:'.;~efo:fe ····· •.·. . . this court as I do. •.·,•·, .. ., •:. ~:;,:::;- ·. ·.-~• ~-·' It is so-·:prq~red . .... '::_:<" I.D. Aboud JUDGE 28/03/2014 7