dunia omari msuba and others vs the registrar of the industrial court of tanzania and others 2020 tzhc 4594 14 december 2020

IN THE HIGH COURT OF TANZANIA (MAIN REGISTRY) AT PAR ES SALAAM MISC. CIVIL APPLICATION NO. 27 OF 2020 DUNIA OMARI MSUBA............................................) YASINI SHABANI MNYETE....................................... ) APPLICANTS (On their own behalf and on behalf of 51 Others ) (named in annexures to the Affidavit ) VERSUS THE REGISTRAR OF THE INDUSTRIAL COURT OF TANZANIA.............................................. 1st RESPONDENT THE ATTORENY GENERAL.......................................2nd RESPONDENT TANZANIA BREWERIES LTD...................................3rd RESPONDENT RULING 25/11/2020 & 14/12/2020 Masoud, J. This is a ruling in respect of an application by the applicants for leave to file application for extension of time to lodge notice of appeal in a representative capacity in their own behalf and on behalf of 51 persons. The list of names of the 51 persons is annexed to the applicants' affidavit. The intended appeal which the applicants would want to lodge is against the decision of this court (in Misc Civil Application No. 18 of 1995) i exercising its judicial review powers over a decision of the then Industrial Court of Tanzania. The applicants and the other 51 persons allege that they were all employees of the third respondent. They were retrenched and challenged the retrenchment. The decision of this court sought to be appealed against is connected to the decision of the Industrial Court in relation to their retrenchment. It was the decision emanating from an application by Amani Kajo and Others for prerogative orders against the decision of the Industrial Court of Tanzania. The applicants claimed to have full authority for the sought representation drawing the attention of the court to a written authority attached to the affidavit supporting the application. In a bid to show the court that the application is meritorious it was show in the affidavit supporting the application and during oral submissions that the applicants are numerous as they total 53; they have common interest and rights against the respondents in the intended application and appeal. Their interest emanates from the complaint of not being paid in full their entitlements after retrenchments was effected by the third respondent who was their employer. Their complaint on the retrenchment gave rise to the decision of the Industrial Court of Tanzania and the decision of this court which is sought to be impugned in the Court of Appeal if leave is granted to file application for extension of time in representative capacity. It was equally shown that the applicants and the 51 others have common claims against :he respondents, which claims relate to their entitlements arising from retrenchment, and connected to the decision of this court sought to be impugned. The court was told that it was practically convenient for all of them to pursue the matter in representative capacity as opposed to having each and every one of them filing a separate application which would attract common questions. The third respDndent opted not to oppose the application for leave sought by the a p p fe n t. Thus, the only opposition waged was by the first and second respondents who were ably represented by Ms Narindwa Sekimanga, learned State Attorney. She opposed the application on the following reasons. One, that the application was not in compliance with Order 1 rule 8(1) of the CPC as it is not clear that the listed persons have all consented to be represented by the applicants in the intended application and appeal. Two, since the dispute at hand is essentially a labour matter, the applicant should have filed their application in the High Court Labour Division as even the Industrial Court of Tanzania Act has since been repealed. Three, the first respondent was not a part in the decision sought to be appealed against which means that he was improperly impleaded and hence the application is incompetent. Reliance was made on Joseph Mtogwesangu v Principal Secretary, Ministry of Finance and AG, In his rejoinder the counsel for the applicant submitted that the application was in compliance with the law. The court was shown the relevant aspects which must be in existence for an application for leave to file an action in representative capacity to be successful. Attention of the court was drawn to relevant paragraphs of the affidavit supporting the learned counsel's argument. I have had in this respect regard to the fact that in the present application, the applicants are just seeking leave to file an application for extension of time to file notice of appeal in a representative capacity. It was not disputed that the applicants and the 51 persons make a total at of 53 persons. The attached list to the affidavit attest to this, despite the alleged confusion raised by the respondents' counsel which in my view does not on the balance dismiss the fact that the listed individuals consented to be represented by the applicants. It was also not disputed that it is not convenient for all 53 persons to file separate applications as the same would rise common questions which might lead to conflicting decisions. Consistent with the above, there was no dispute that the applicants have common claims, and common interests. The issue relating to the allegation that this matter ought to have been filed in the Labour Court was raised earlier and dealt with as a preliminary point. I need not labour on it once again. The same goes for the other preliminary matters raised which in the light of the mandate of this court in the present I application, I am convinced that they are matters that cannot be entertained at this stage. In conclusion, the leave is hereby granted to the applicants to file an application for extension of time to lodge a notice of appeal in a representative capacity on their own behalf and on behalf of 51 persons whose names are listed in the annexures to the affidavit supporting the application. In the circumstances, I will not make any order as to costs. Dated at Dar es Salaam this 14th day of December 2020. 5