MISC NO 136030 OF 2024 GIBSON WETSON KACHINGWE VRS TPAWU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 13630 OF 2024 CASE REFERENCE NO. 202406101000013630 BETWEEN GIBSON WESTON KACHINGWE & 381 OTH ERS........................ APPLICANTS VERSUS TANZANIA PLANTATION & AGRICULTURAL WORKERS UNION (TPAWU)................................................................. 1ST RESPONDENT UNITRANS (T) LIMITED.................................................... 2ND RESPONDENT RULING Date of last Order: 12/ 07/2024 Date of Ruling: 20/ 08/2024 MLYAMBINA, 3. In the present application, the Applicant is beseeching the Court to enlarge time to file notice of appeal out of time. The application proceeded by way of written submissions. Mr. Gibson Kachingwe, the Applicants' representative was of submission that the reasons for the delay are deponed under paragraph 17 of the Applicants joint affidavit which I hereunder quote for easy of reference: i. The notice o f appeal was supposed to be made within 30 days from the date o f decision. The decision was made on 23/10/2020. Hence the period o f 30 days expired on 21/11/2020. Therefore, the length o f delay counting from 22/11/2020 after the date o f decision to date o f filing notice o f appeal (17/12/2020) was 26 days. The reason for delay is the time taken by the Labour Court to serve the Applicants with a copy o f the ruling. It was served on 08/12/2020 which was 55 days after date o f decision. The Applicant's Representative after receiving a copy o f the ruling on 08/12/2020 promptly within 9 days lodged a notice o f appeal on 17/12/2020 and served a copy o f it to the Respondents on 07/01/2021 and 08/01/2021 respectively. Thus counting from the date the Applicants received the Ruling (08/12/2020) to the date o f lodging the notice o f appeal (17/12/2020% the Applicants were within the time frame o f 30 days. But being strict to the rules that days should be counted from the date o f decision they were innocently out o f time by 55 days. Therefore, given the information in paragraph above and the fact that usually the Registry o f the High Court needs sufficient time to prepare documents for service to the Appellant, the delay o f 55 days accounted for herein above is not far from usual or expectation and was not caused by negligence or apathy. i/. The Applicants had already lodged an appeal at the Court o f Appeal o f Tanzania which was mentioned on 30/10/2022. Unfortunately, the Applicant’s Representative had to withdraw the appeal having realized that the law required a notice o f appeal had to be filed within 30 days from the date o f decision and not from the date of receiving a copy the decision. The then Hon. Muruke, Judge o f the High Court o f Tanzania (Labour Division) delivered her ruling on 23/10/2022 in the absence o f the Applicant's representative. In their separate reply submissions, the Respondents raised an issue worth to be considered by the Court before going to the merit of the application as the Applicants had a chance to reply through rejoinder submission. They stated that there is no authorization to Mr. Gibson Weston Kachingwe to be the representative of Others and act on their behalf. They stated that there is no evidence to prove that the named Applicant was appointed as per the law requirement under Rule 44(2) o f Labour Court Rules, G.N. No. 106 o f2007 (herein LCR). In their rejoinder, the Applicant kept on insisting that the application is proper before the Court. They did not directly reply whether there was grant of representative or not. The issue of representation is provided under Rules 44 o f the LCR which provides as hereunder quoted: Rule 44 (1) The Court may join any number of persons, whether jointly, jointly and severally, separately, or in the alternative as parties in the proceedings. If the right to relief depends on the determination of substantially the same question of law or facts. (2) Where there are numerous persons having the same interest in a suit, one or more of such persons may, with the permission o f the Court appear and be heard or defend in such dispute, on behalf of or for the benefit of all persons so interested, except that the Court shall in such case give at the complainant's expenses, notice of the institution of the suit to all such persons either by personal service or where it is from the number of persons or any other service reasonably practicable, by public advertisement or otherwise, as the Court in each case may direct. [Emphasis is mine] The bolded words are loud, a person intending to represent others must obtain permission from the Court. It is obtained formally by filing an application for representative suit where all Applicants are expected to consent that they have chosen so and so to represent them and initiate a certain application on their behalf. In the instant application, at paragraph 1 of the Applicants' affidavit in support of their application Mr. Gibson Weston Kachingwe deponed as follows; that he is the representative of the Applicants duly appointed and authorized to swear the affidavit and appear in Court on their behalf. He further Annexed a copy of the list of the Applicants with their signatures and phone numbers which appear as Annexture "A". The named Applicant proceeded to swore the affidavit and sign all necessary documents on behalf of others. I had a glance on Annexture A, as deponed, it is the list of the interested Applicants with their signatures and phone numbers. As per Rule 44(2) (supra) authorization is obtained from the Court and the Applicants failed to annex any document signifying the same. In the above circumstances, it is my view that Mr. Gibson Weston Kachingwe acted without authorization as raised by the Respondents. For such reason, the application becomes incompetent for being initiated by unauthorized person. It is therefore struck out from the Court's registry. It is so ordered. Y. J. MLYAFTBINA JUDGE 20/08/2024 Ruling delivered and dated 20th August, 2024 at 14:35 hours in the presence of Counsel Antony Kianga for the Applicants and Counsel Kitua Kinja and Rachel Kabogo for the 1st Respondent and Danstan Kaijage for the 2nd Respondent. Y. J. MLYAMBINA ,'*c «> V JUDGE Ayy 20/08/2024