MISC NO 20688 OF 2024 CHRISPIN GEORGE MREMA VRS ROSE GARDEN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 20688 OF 2024 CASE REFERENCE NO. 202408231000020688 BETWEEN CHRISPIN GEORGE M R EM A ..................................................1ST APPLICANT CONSTANTINO HILAL LU O G A.................................... ..... 2ND APPLICANT VERSUS ROSE GARDEN .......................................................................RESPONDENT RULING Date of last Order: 11/10/2024 Date of Ruling: 18/10/2024 MLYAMBINA, J. Before the Court, the Applicants prays for this Court be pleased to issue an order o f arrest warrant against the Respondent Directors (NAJA ASSY & DARR ASSEYJ for not honour the decree and judgement o f this Court which confirmed the CMA Award. The application was ordered to be disposed by way of written submissions. In his submission opposing the Respondent's Counsel, Franco Mahena notified the Court that the Applicants did not file their submission as ordered by the Court. Basing on such allegation, I revisited the Court's order and found that the Applicants were ordered to file their submissions by 04/10/2024, reply submission by 08/10/2024, and rejoinder by 11/10/2024. Despite of the Courts order, the Applicants filed their submission on 10/10/2024. It is a trite law that Court orders should be respected and complied with otherwise there will be no meaning of giving orders. This is also the Court's position in the case of TBL v. Edson Dhobe, Misc. Application No. 96 of 2006 Court of Appeal of Tanzania (unreported) cited in the case of Buruhani Omari v. Victoria Revelian, Misc. Land Application No. 90 of 2020. In the circumstances, the Applicants' submission is hereby disregarded for failure to comply with the Court's order and ask permission from the Court to vacate the order. In his reply submission, Counsel Mahena raised the following objection which the Court found prudent to determine before going to the merit of the application: 1. That, the Applicant's Application is incompetent for failure to join the necessary parties who are the alleged Directors o f the Respondent Company. 2. That, the Applicant has not adduced sufficient reasons to warrant the Court to issue arrest warrant against the alleged Respondent's Directors. To start with the first objection, the Counsel submitted that the alleged Directors were not party to the proceedings which gave rise to the decree which is sought to be executed and they are also not party to the Applicant's Application at hand. He argued that it was mandatory for the Applicant to join the alleged Directors of the Respondent's company as party to this Application for them to get the right to be heard in this application. Praying for arrest warrant and issuing the same against persons who are not the parties to the case, will be to condemn them unheard; something which is against the rules of natural justice. Though the Applicants had a chance to respond to the objections through rejoinder they opted not to do so. Thus, the Court proceeds to determine the objections ex-parte. As herein above stated, the Applicants are praying for this Court to issue an order of arrest warrant against the Respondent Directors (NAJA ASSY & DARR ASSEY) for not honouring the decree and judgment of this Court which confirmed the CMA's Award. Since the order sought is against the herein Directors of the Respondent's company, I join hands with Counsel Mahena's arguments that they ought to have been joined in the present application as they are necessary party to this application. The Court cannot proceed to issue an order against them while they were not afforded the right to be heard. In the case of Tang Gas Distributors Limited v. Mohamed Salim Said & 2 Others, Civil Application for Revision No. 68 of 2011 it was stated that; when it's discovered that a necessary party has not been included in the suit and neither party is inclined to apply for his inclusion then the Court is duty bound to ensure that he is added. The Court said: Settled law is to the effect that once it is discovered that a necessary party has not been joined in the suit and neither party is ready to apply to have him added as a party, the Court has a separate and independent duty from the parties to have him added ... It was further held that: It is now an accepted principle of law (see Mulla Treatise (supra) at p. 810) that it is a material irregularity for a Court to decide a case in the absence of a necessary party. Failure to join a necessary party, therefore is fatal (MULLA at p 1020). In the case at hand, the Court would have applied the above principle and make the order that the necessary parties be joined to this application. However, the Applicants did not even bother to reply to the 4 objection raised hence, it is undetermined whether they lost interest to the case or not. Under the circumstance, the Court cannot make an order which cannot be executed. I find no need to labour on the remaining objection since the first one has disposed the application. In the result, since the necessary parties were not joined in this application, it renders the application incompetent. Consequently, I proceed to struck out the application for being incompetent. It is so ordered. JUDGE 18/10/2024 Ruling delivered and dated 18th October, 2024 in the presence of the Applicants and Obora Kaduga, Legal Officer of the Respondent.