ezekiah tom olouch vs chama cha walimu tanzania 2020 tzhcld 3844 31 december 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 436 OF 2019 BETWEEN EZEKIAH TOM OLUOCH............................................................. APPLICANT VERSUS CHAMA CHA WALIMU TANZANIA..................................... RESPONDENT RULING Date of Last Order: 01/09/2020 Date of Judgment: 31/12/2020 Aboud, J. The applicant made the present application under section 53 (1) (b) (i) (c) and 94 (l)(f)(i) of the Employment and Labour Relations Act, 2004 (herein referred as the Act), Rule 24(1) 24(2)(a)(b)(c)(d)(f), 24(3)(a)(b)(c)(c)(d), 24(ll)(c), 55(1) and 55(2) of the Labour Court Rules, GN. No. 106 of 2007 (herein referred as the Labour Court Rules). The application was made under the certificate of urgency praying for the following orders: - (i) This Honourable Court be pleased to declare that the applicant was protected under the principle of res-subjudice which prohibited the respondent to take any action against i him based on the same subjects in controversy which were filed before the High Court (Main Registry) as Misc. Application No. 30 of 2017 and No. 18 of 2017 which was questioning the decision of the Permanent Secretary, President's Office Public Service Management which were also used by the respondent to suspend and at a later stage, dismissed the applicant from his position as the Deputy General Secretary of the Respondent. (ii) That this Honourable Court be pleased to declare that the by election and its subsequent results held at Dodoma on 4th of June, 2018 by the Baraza la Taifa (National Council) of the Respondent in which Christopher Banda and Deus G. Seif were elected as the Vice President and the General Secretary of the Respondent respectively was conducted in contravention of the Respondent's Constitution Toleo la Sita of 2014; Kanuni za Chama cha Walimu Tanzania of 2015; Kanuni za Uchaguzi za Chama cha Walimu Tanzania of 2015 and Kanuni za Utumishi wa Chama cha Walimu Tanzania of 2001 (RE. 2011) as the Baraza la Taifa of the Respondent did not have jurisdiction to elect the General 2 Secretary of the Respondent and the by election was not supervised by the Labour Commission or her personal representative appointed by her as required by the rules of the respondent, hence null and void abi initio. (iii) That this Honourable Court be pleased to declare that both position of the Vice President and the General Secretary of the Respondent are still vacant. (iv) That this Honourable Court be pleased to declare that the applicant is the General Secretary of the Respondent from the day the position of the General Secretary fell vacant. (v) That this Honourable Court be pleased to declare that when the position of the General Secretary of the Respondent fell vacant on 17th of November, 2017 following the death of late Yahya B. K. Msulwa the then General Secretary of the Respondent, the Respondent was required to invoke Article 43.1 of its Constitution read together with Rule 31 (b) of the Kanuni za Chama cha Walimu Tanzania of 2015 to fill the position of the General Secretary. (vi) Cost of the application be paid by the Respondent. 3 (vii) Any other relief and or further orders the Court may deem just and equitable to grant. The application was strongly opposed by the respondent through the counter affidavit of Mr. Mushumbuzi Respondent's Advocate. Though the application was made under the certificate of urgency, due to the circumstance out of control of the Court it was not finalized within the time expected by the applicant. The matter was ordered to be argued by way of written submission. The applicant duly filed his submission. On the other party the respondent did not file any response. At the hearing the applicant appeared in person, unrepresented. During preparation of this ruling I observed that the gist of this application is the interpretation of Rule 31(b) of the respondent's rules and Article 23(2) (g) and 43(1) of the respondent's Constitution. This is reflected at page 14 of the applicant's written submission where he stated that, Rule 31 (b) of the respondent's Rules is the pivot of his application. It was also submitted that, there is a conflict 4 between Article 23(2) (g) and 43(1) of the respondent's Constitution and he invited the Court to interpret the relevant provisions. However, in the attached Respondent's Constitution Toleo la Sita of 2014 marked as Annexture OL-02 at paragraph 9 of the applicant's affidavit reflects the last provision which is available is Article 31.3. Therefore, there in no Article 43 (1) which the Court is called upon to interpret in relation to Article 23 (2) (g) of the Respondent's Constitution is not available in the Respondent's Constitution. The applicant also urged the Court to interpret Rule 31(b) which is the gist of this application of the Kanuni za Chama cha Walimu Tanzania of 2015; Kanuni za Uchaguzi za Chama cha Walimu Tanzania of 2015 and Kanuni za Utumishi wa Chama cha Walimu Tanzania of 2001 attached to this application as annexture OL-02. Unfortunately the Rule in question is also not available in the annexed documents. Therefore, under such circumstance the Court fails to determine this application. The missing provisions in the attached documents (if at all they do exist) are very crucial to the determination of the application at hand. With due diligence the Court have tried to find 5 the relevant respondent's Constitution and Rules in the internet and other sources but they are not available. Thus, it was the duty of the applicant to attach the relevant documents so as to prove his claim and assist the Court to interpret the disputed provisions. It has to be noted that when a party to a case is disputing against specific law of a certain institution or organization it is prudent to attach the law in question for proper administration of justice because such laws might not be easily available as it is in this particular matter. Furthermore it is a trite law that who alleges must proof, in my view failure of a party to attach such relevant document draws the inference that he had failed to proof his claim before the Court. In the result I find this application is incompetent before the court for failure to attach the respondent's Constitution and Rules that contained the disputed provisions. Consequently it is struck out from the Court's registry. It is so ordered. I.D. Aboud JUDGE 31/12/2020 6