20130801 TZHC Arusha

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION ATARUSHA LABOUR REVISION NO.34 OF 2013 HADY ENGLISH MEDIUM ................................. APPLICANT VERSUS GATI ROSE ROBI ....................•.................... RESPONDENT (Original/ CMA/ARS/MED/75/2013) RULING 24/7/2013 &1/8/2013 Aboud, J The application is made under section 91 (2) and 94 (1) (b) (i) of the Employment and Labour Relations Act, No.6 of 2004 and Rules 24 and 28 (1} of the Labour Court Rules, GN.106 of 2007 and any other enabling provisions of the laws. The applicant calls upon this court to revise the ex-parte proceedings and arbitration award ~assed by the Commission for Mediation and Arbitration (herein the CMA) at Arusha on 25/5/2011. Shortly are the facts of the matter. The applicant was an employer of the respondent since 5/4/2009 . . The applicant . terminated the respondent on ?8/3/2011. The respondent referred the matter to CMA for unfair termination and claimed for payment of her entitlements. The dispute was heard ex-parte according to Rule 14 (2) (a) (ii) of Labour Institution () GN.67 of 2007 due to non appearance of the applicant. The CMA decided in favour of the respondent and ordered the applicant to pay the respondent a total of Tshs. 5,560,000/= as her entitlements. Aggrieved with the decision the applicant filed an application to set aside the ex-parte award which was dismisses by the CMA on ground that the applicant did not adduce sufficient reason for the CMA to set aside the award. The applicant decided to file the present application. In the respondent's counter affidavit he raised three points of preliminary objection that; (a) The application for revision No.34 of 2013 filed by the applicant in this Hon. Court delivered on 25/5/2011 is time barred. (b) That the application for revision No.34 of 2013 filed by the applicant in this court for revision of an award delivered on 30/9/2011 is a nullity because is based on an award which is a nullity. 2 (c) That t~e application is bad in law for being V?)gue and it does not comply with the mandatory requirements of I Rule 24 (2) (a) to (f) of the Labour Cdurt Rules, 2007. Mr. A. Laizer, learned counsel represented the applicant while Dr. Mchami assisted by Ms. Neema , represented the respondent. Arguing the preliminary objection Dr. Mchan,i submitted only on two grounds among the three raised, that ~he application is time barred, during the hearing h raised another point of objection that the application has been filed under the wrong provision of the law. I In his submission on the first point Dr. Mchami said, the I award which the applicant wants the court to revise was delivered on 25/5/2011 ex-parte. That the applicant filed the present application on 10/10/2011 which was more .than six weeks I prescribed by the law under section 91 (1), (a) (b) of the Employment and Labour Relations Act. As to the second point Dr. Mchami submitted that the applicant moved the court with section 91 of the Employment and Labour Relations Act. The court derives the power for revision 3 under section . 91 (2) (a) (b) which provides that. the applicant can come to court on two grounds, that, (a) where there is misconduct on part of arbitrato"r and (b) the award was improperly procured. Therefore the applicant was supposed to put the specific sub- section because each sub-section has specific function. He said the application is supposed to be struck out. He supported his argument with various cases among them is Fabian Akonae vs. Mathias Dawite, Civil Application No.11 of 2013, CA at Arusha (Unreported). In reply Mr. A. Laizer submitted on the first point that the application is filled within time. He said after the, ex parte award the applicant filed an application to set aside the award on 10/6/2011 of which its decision was delivered on 30/9/2011. He submitted further that the present application· was filed on 10/10/2011 which is almost ten days from the ruling of 30/9/2011, therefore within time as per section 91 (1) (a) of the Employment and Labour. Relations Act. On the second point the respondent's counsel conceded that they did not cite a specific provision of law. He said however a mere fact that he did not cite a specific subsection does not render the application incompetent. He prayed for the court to entertain the application for the interest of justice. He supported 4 his argument with the case of Hon. Attorney Gen~ral & two others vs. V.G Chavda, Civil Application No.122 of 2004, CA at DSM. ~ He finalized that the omission made by the applicant to cite the subsection will not occasion any injustice to the other party. He prayed that the preliminary objection be dismissed. Having gone through parties submission I will determine the preliminary objections as argued by the parties. The first preliminary objection that the application is time barred, the records shows that the award which the applicant intends to challenge was delivered on 25/5/2011. The applicant filed an application to set aside the award the decision which was delivered on 30/9/2011. Dissatisfied he filed the . present application on 10/10/2011. As rightly submitted by the applicant the application was filled after ten days from the ruling of 30/9/2011. Basing on the records it is clear that the application was filed on time. Therefore, I find this point of objection to have no merit. As regard to the second point of objection, it is not disputed that the applicant moved the court with section 91(2) · of Employment and Labour Relations Act. He did not cite the specific 5 subsection or paragraph which mo~es the court to determine the application. As much as I agree with the applicant submission that courts do not exist for the sake of discipline but for the sake of deciding matters in controversy as established in V.G Chavda's case (supra) but I found this case to be distinguishable as regard to this application, in the sense that it is the established principle in law that failure to cite proper provision or incomplete citation of enabling provisions of the law makes an application incompetent, with the only remedy being, to struck out as was decided by the Court of Appeal in the case of Edward Bachwa & Another VS. The Attorney General & Another Civil Application No. 128 of 2006 (CA) DSM (unreported), where the court held that wrong citation of the law, section, sµbsection or paragraph of the law or .non citation of the law will not move the court to do what is asked and renders the application incompetent. The above position, was reiterated in the case of Chama cha Walimu Tanzania vs. AG, Civil Application No.15 of 2008 (CAT), {Unreported) \Nhere the Court of Appeal emphasized its long held position that; ".... the omission in citing the proper provision of the rule relating to a reference 6 I i and worse still the error in citing • :a wrong I and inapplicable rule in suppott of the i application is not in our view, a technicality ' falling within the scope and provision of Atticle 107A{2} {e} of the Constitution. It is a matter which goes to the very ropt of the matter. We reject the contention '.that the I error was technical." I In the circumstance that the application is filed under the I I wrong provision of the law, I haye no other alternative than to find this application incompetent ,and cannot move I the court to I , entertain and determine it. ' In the result the application is struck out. For the interest of • < justice the applicant should file a proper application within thirty days from this order if he wishes to do so. It is ordered accordingly. I.D.ABOUD -- 1 - - - - -. . . JUDGE 31/7/2013 7 • Date: 31/712013 Coram: Hon. I.D. Aboud,] Applicant: Absent For Applicant: Absent Respondent: For Respondent: Ms. Neema Lukumayi CC: J. Kalolo Order: Ruling delivered on 31/7/2013 in the presence of Ms. I Neema Lukumayi for the respondent and both the Applicant and I I his Advocate are absent. I -----·-I LO.Aboud JUDGE 31/7/2013 8