REVISION NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 253 OF 2023 (Arising from the award of the Commission for Mediation & Arbitration of Pwani at Kibaha) (E/ Tibenda: Arbitrator) Dated 5!f! September 2023 in Labour Dispute No. CMA/PWN/KBH/81/2022/06/2023) DEUSDEDITH JOVIN KAHANGWA............................................... ...APPLICANT VERSUS WORD ISLAMIC PROPAGATION AND HUMANITARIAN SERVICES(WIPAHS)..... ............................... RESPONDENT RULING Date of last order; 20th Feb. 2024 Date of Ruling: 3rd April. 2024 OPIYO, J. This ruling is in respect of preliminary objections raised by the respondent in Revision Application No. 253 of 2023 which was filed by the applicant against the CMA award in a Labour Dispute No. CMA/PWN/KBH/81/2022/06/2023. This application is vehemently opposed by respondent who raised three preliminary objections, the same are to the effect that; - i) That the application is incurably defective for being supported with a fatally and incurably defective affidavit which contravenes 1 r 2019, the High Court of Tanzania at Mwanza, (Reported Tanzlii), Hon. Tiganga, J. while interpreting the provision of Section 53 of the Interpretation of Laws of Act observed that the word "shall" when used in conferring function, means that the function conferred is mandatory. In insisting the requirements of the affidavit, Ms. Turusia submitted that the deponent must fulfil the requirement for the affidavit to be competent. A skip of the requirements needed to be in the affidavit or not following the rules governing affidavit renders the affidavit defective. She contended that, this position was emphasized by the Court of Appeal of Tanzania in the case of D. B. Shapriya and Co. Ltd vs. Bish International, Civil Application No. 53 of 2002 CAT. Lastly, Ms. Turusia argued that in the application at hand, the applicant who is deponent failed to comply with mandatory requirements guiding the affidavit in the Labour Court by skipping certain rules and requirements as spelt out under Rule 24(3) (a) which are mandatory to be in an affidavit to form part thereof. According to her, this application ought to be struck out by this Court. 3 descriptors as employer and employee. To him these descriptors do clearly and concisely set out the facts which sufficiently allow the labour court to conclude that, the parties under this dispute are right-holders and duty bearers within the context of an employment relationship. Again, regarding the addresses of parties, he stated that the notice of application, paragraph number 3 on page one of the affidavit, and the last page of the affidavit do sufficiently, clearly and concisely set out the addresses of the parties, as follows: On the last page of the affidavit the address of the "Respondent" is stated as "P. 0. Box 30273, Kibaha-Pwani." The notice of application states that "the Applicant herein will accept service" through the following address, "Kilimani Street, Ada Estates, Kinondoni, Plot No. 90/2, P. 0. Box 77483, Dar es Salaam, Tanzania." The affidavit introduces the Applicant as a "resident of Kibaha." And the location of the Respondent is introduced by the affidavit through the following phrase, "apart from "Wali UI Asr Boys Seminary (WBS)", the other institutions owned by Wipahs are located at Mailimoja ward and registered under Kibaha Town Council." According to him nothing essential is missing in the application. He agreed that Rule 24(3)(a) of the Labor Court Rules, mandates what "content" to state in the affidavit, namely, "the names, descriptions and addresses of the parties," but the format. That means, it does not explain the format on how the names and description of the parties and their address should be indicated. Looking at the affidavit in place, the names of the parties are indicated and addresses under paragraph 3 and last page of this affidavit where all institution owned by respondent locations are shown. Though in an indirect way, the affidavit also indicates the applicants address at paragraph 7 of the affidavit. Therefore, in my view it suffices to say that the applicant's affidavit though not in elaborative way do comply with the law in terms of indicating names and address of the party enough to enable one to know the proper description of the parties and their address for the purpose of service. This makes it difficult to hold that the rule referred to by the applicant has not been complied with. For the reason, the first objection is overruled. On the third objection, Turusia argued that, the application is bad in law for suing a wrong party. She stated that, the applicant in his application is seeking before this Honourable Court to quash the proceeding and set aside the award related to labour dispute number CMA/PWN/KBH/81/2022/06/2023 delivered by Hon. Tibenda, Arbitrator 7 or a word(s), as a result of a typographical error, may be treated by Courts as "misnomers" which are cured by correction without the need for rectification, provided that the pleadings and their attachments, when read together as a whole, unambiguously points a litigating finger at the right Respondent. According to this doctrine, an error as to a name is nothing when there is certainty as to the identity of the person to whom the litigation finger unambiguously points. Therefore, as all other documents in the matter like dispute referral form (CMA F.l), and page one of the employment contract between the applicant and the Respondent, carry the correct names of the parties as "Deusdedith Jovin Kahangwa" as an Employees and "World Islamic Propagation and Humanitarian Services (WIPAHS)" as the Employer, the said misdescription in the award has no effect. I admit that the issue of parties to the case is a legal and central matter in all proceedings as argued by Turusia. Therefore, the act of the Applicant bringing an application against supposedly a different party from the one originally sued would affect the entire case as it goes to the root of the matter. However, in this revision, going to the CMA form No 1 and other dispute related documents, it is shown that, the party who was sued is WORLD ISLAMIC PROPAGATION AND HUMANITARIAN SERVICES 9 appeal is ordered to proceed on merits as the ordered correction is merely for record purposes that does not affect the competency of the appeal. It is so ordered. M. P. OPIYO, JUDGE 3/4/2024 11