BONIFACE BOAZI

IN THE HIGH COURT OF TANZANIA DODOMA SUB-REGISTRY AT DODOMA LABOUR REVISION NO. 23183 OF 2024 (Originating from Labour Dispute No. CMA/DOM/DOM33/16/2023 in the Commission for Mediation and Arbitration at Dodoma) BONIFACE BOAZ............................................................... APPLICANT VERSUS DCB COMMERCIAL BANK(PLC)................................... RESPONDENT RULING l#h March & 4'1 April, 2025. MUSOKWA, J. In September 2024, the applicant herein, filed the instant application for revision under section 91(l)(a), 91(2) (b), (c), 94(1) (b), (i) ,(f),(i) of the Employment and Labour Relations Act, Cap. 366 R.E 2019 (ELRA) and Rules 24(1),(2) (a), (b), (c), (d) (e), (f), 24(3) (a), (b),(c) (d), 28 (1) (a) (b) (c) (d) and (e) of the Labour Court Rules G.N. No. 106 of 2007 (Rules). The application was filed by way of chamber summons supported by the affidavit of the applicant, sworn on 16th September, 2024 praying for the following orders: - i a. That this honourable court be pleased to call for the records, proceedings, and award of the Commission for Mediation and Arbitration (CMA) at Dodoma dated 21st day of August, 2024 in Labour Dispute No. CMA/DOM/DOM/33/16/2023 for it to be revised; and to set aside the entire award. b. A declaration order that: - (i) The respondent's termination was not fair and that the applicant should be reinstated. (ii) Any other reliefs this honourable court deems fit to grant. In response thereto, the respondent filed a counter counter-affidavit accompanied with the notice of preliminary objection that: - "The application by the applicant is supported by an incurably defective affidavit in which its jurat did not specify where it was taken and whether the deponent/appHcant was personally known or introduced to the commissioner for oath; contrary to the provision of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12." The preliminary objection was scheduled for hearing on 18th March, 2025 whereby Mr. Alexander Mzikila, learned advocate appeared for the respondent; while Mr. Sedrick Mbunda, also learned advocate represented the applicant. The learned counsel for the respondent submitted that the affidavit of the applicant offends the provision of section 8 of the Notaries Public and Commissioners for Oaths Act, Cap. 12 R.E. 2019 (Cap.12). The 2 aforementioned section provides that every Notary Public and Commissioner for Oaths before whom any oath or affidavit is taken or made under the said act, shall state in the jurat of attestation, at what place and on what date the oath or affidavit is taken or made. Submitting further, Mr. Mzikila contended that, the affidavit in the instant application, only indicates the respective date the oath was taken. However, the place at which the oath was procured has not been indicated. According to the respondent's counsel, the provision of section 8 of Cap. 12 aforementioned is coached in mandatory terms. Therefore, non-compliance of the said provision is a fatal irregularity. In support of this position, the learned advocate cited the case of Wengert Windrose Safari (T) Limited and Two Others vs Biguda and Company Limited and Another, Civil Appeal No. 39 of 2000, (unreported). In this regard, Mr. Mzikila stated that the application before this court is improper as it has been supported by an affidavit that is defective. In view of the foregoing, the respondent's counsel prayed that the application be struck out. 3 In reply, Mr. Mbunda, learned advocate for the applicant conceded with the preliminary objection raised by the respondent. Thus, the learned advocate agreed that the said affidavit is defective. However, with regard to the consequential orders, Mr. Mbunda prayed that this court should consider that the matter before it is a labour matter. Therefore, for the interests of justice, this court should not belabor on technicalities. Accordingly, the applicant's counsel prayed to withdraw this application with leave to re-file. In rejoinder, Mr. Mzikila reiterated his previous submissions, further adding that the applicant ought to have lodged the prayer for withdrawal of the application, prior to the filing of the preliminary objection by the respondent. It was his further submission that such a prayer cannot be lodged at the hearing stage. The respondent's counsel maintained his prayer that the application be struck out. Having heard the submissions by the parties, and the preliminary objection being conceded by the applicant; the sole issue to be determined by this court is the consequential orders. However, before answering the sole issue raised above, I will start with making reference to the case of Linda Cosmas vs George Shida & 4 Others, Civil Application No. 183/08 of 2020, [2023] TZCA 17439 (21st July, 2023: TanzLII). The cited case was deliberated by the Court of Appeal of Tanzania (CAT) and it was partly held that: - ’>4 reading ofsection 8 of the Act and the cited cases reveals that not any irregularity would have a serious effect of rendering a jurat of attestation incurably defective. In very dear terms, they are to the effect that it is only failure to show when, where and before what authority (whom) the affidavit was taken which are the only serious deficiencies which render a jurat of attestation and an affidavit as a whole incurably defective subject to be expunged, [emphasis added] Further, the provision of section 8 of Cap. 12 reads as follows: - "Every notary public and commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat of attestation at what place and on what date the oath or affidavit is taken or made"', [emphasis added] According to the above cited authorities, it is settled law that an affidavit must indicate the date, the place, and before whom the oath was taken. In the case at hand, while the jurat of attestation indicates the date, and before whom the oath was taken; the place where the oath was taken has been omitted. 5 As readily conceded by the applicant, I am of the view that the omission to indicate the place where the oath was taken is a fatal irregularity. In the circumstances, I find that the preliminary objection raised by the respondent is meritorious. Coming to the issue raised, the applicant submitted that for the interests of justice, this court should allow him to withdraw the application with leave to re-file. On the other hand, the respondent submitted that the application should be struck out. In addition, the respondent strongly resisted the applicant's prayer to withdraw the application for being inappropriate in law. Submitting further, the respondent stated that the withdrawal of the application ought to have been preferred by the applicant prior to the filing of the preliminary objection. Indeed, there is an established legal principle that states that, a party to the case is not allowed to make submission or prayer that has the effect of pre­ emptying the preliminary objection raised by the other party. The CAT case of Benita Cassar Torreggian Inc. vs Tanzania Tourist Board & Another, Civil Appeal No. 523 of 2020, [2024] TZCA 31, (13th February, 2024: TanzLII), is relevant on this point, and it was held that: - 6 ''Basically, the Court is not permitted to entertain submissions which are intended to pre-empt the preliminary objection raised by a party against another at the stage ofhearing. In Method Kimomogoro v. The Board of Trustees of TANAPA, Civil Application No. 1 of2005 (unreported), the Court stated thus: 'the Court has said in a number of times that it will not tolerate the practice of an Advocate trying to pre-empt a preliminary objection either by raising another objection or trying to rectify the error complained of". [Emphasis added] In that regard, I am in agreement with the respondent that the applicant's prayer to withdraw his application during the hearing of the preliminary objection, intended to pre-empt the preliminary objection raised by the respondent. For reasons aforesaid, the applicant's prayer to withdraw the application is rejected. Consequently, this application is hereby struck out for being incompetent. Nevertheless, for the good ends of justice, and acting under rule 55(2), the applicant is granted 14 days after the date of this ruling to refile a competent application, if he wishes. Notably, the application of rule 55(2), was canvassed by the CAT in the case of Felician Rutwaza vs World Vision Tanzania, Civil Appeal No. 213 of 2019, [2021] TZCA 2 (2nd February, 2021: TanzLII), and it was held as follows: - 7 "As rightly submitted by Mr. Mkumbukwa, the Labour Division of the High Court was right in exercising its discretion granting leave to refile a proper application. In our view, that Court acted consistent with Rule 3 (1) and 55(1) of the Labour Court Rules, 2007 G.N. No. 106 of2007 (the Rules) made under section 55 (1) of the Labour Institutions Act, [Cap. 300 R.E.2019]. The former rule provides that the Labour Court shall be a court of equity whilst the latter empowers it to adopt any appointed procedure for any matter not provided for. Better still, rule 55(2) of G.N. No. 106 enjoins the Labour Court to act in a manner it considers expedient in the circumstances with a view to achieving the objects of the Act and, or the good ends of justice." [Emphasis added] Lastly, this being a labour matter, each party shall bear their own costs. It is so ordered. Ruling delivered in the absence of the applicant, and in the presence of Mr. Isaac Mwaipopo, advocate h/b for Mr. Alexander Mzikila, counsel for the respondent. . MUSOKWA JUDGE 8