herzon tungaraza vs chairman of the board of trustees water project losaa kia 2015 tzhc 2199 7 may 2015

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION IN THE LABOUR COURT ZONE CENTRE AT MOSHI REVISION NO. 6 OF 2014 BETWEEN HERZON TUNGARAZA..................................................APPLICANT VERSUS CHAIRMAN OF THE BOARD BOARD OF TRUSTEES WATER PROJECT LOSAA KIA...RESPONDENT RULI NG 04/05/2015 & 07/05/2015 Mipawa, J. The Applicant, Herzon Tungaraza filed this revision as against the Chairman Board of Trustees Water Project Losaa Kia, who is the Respondent thereof. The notice of application is allegedly made under Rule 24 (1) and (2) and 28 (1) of the Labour. Court Rules1. There is a chamber summons also filed by the Applicant under Rules 24 (1) and (3), of the Labour Court Rules as well as Rule 28 (1) of the same Rules2. Section 91 and 94 (1) (b) of the Employment and Labour Relations Act3. There relief sought being that:- • ... The Honourable Court be pleased to call and examine the proceedings and subsequent award of the 1Government Notice No. 106 of 2007. The Rules 2 ibid 3 Act No. 4 of 2004 Cap 366 RE 2009 (The ELRA) Commission for Mediation and Arbitration at Moshi on Employment Dispute No. Mos/CMA/M/188/2013 delivered by Hon. Lokeha...4 A notice of preliminary objection was raised by the Respondent before the'hearing of the revision. The Respondent's notice of preliminary objection goes like this:- (i) The notice o f application is legally incompetent for failures to substantial conform to form no. 4 as provides under Rule 24 (2) o f the Labour Court Rules, GN. No. 106 o f 2007. (ii) The application is misconceived and hence legal incompetent. Submitting in support of the preliminary objection Mr. Sandi, Learned Advocate for the Respondent who raised the preliminary objection submitted viva voce (by live voice) that the notice of application is not in conformity with the format described in form no. LCF 4, the Applicant did not list the orders as they are listed in the prescribed form5. Nevertheless, a cursory glance on the notice of application, the Applicant has properly put the address of the parties as required contrary to what the learned counsel wants the Court to believe. Whereas I party agree with Mr. Sandi that some of the requirements of LCF No. 4 are not adhered or put in the notice of application which is required to comply with Labour Court form No. 4 by putting the works "shall'. I find it that the notice of application itself suffers from non-citation of the enabling provisions of the law to wit Rule 24 (3) is not cited, Rule 28 (1) and its 4 See page 1 of the Applicants notice of application and chamber summons 5 LCF 4 refers to Labour Court form no. 4 appears at page 51 of the Schedule to the Labour Court Rules GN. No. 106 of 2007 and requires the notice of application to comply with LCF no. 4 paragraphs either (a) or (b) or (c) or (d) or (e) or all of them is not citedb. This includes also Section 91 (1) (a) and (b), 91 (2) (a) or (b) or (c) are • 4 totally not cited by the Applicant7. The learned counsel's second limb of the preliminary objection that the Applicant revision incompetent for citing Rule 24 (1) (2) and 28 (1) of the Labour Court Rules because Rule 24 and 28 of the Labour Court Rules8, cannot go together is great misdirection. The two Rules are the pre­ requisite to be cited in order to move the Labour Court to do what it is being asked to do and if you read between the lines you cannot argue as Mr. Sandi has argued. It is a clear misconception of the law. I don't agree with the arguments by the learned counsel on Rule 24 and 28 as above stated. The Rules are vital to move the Court to do what it has been asked, and the failure to cite the section, rule, subsection or sub-rule or paragraph of the enabling provision is tantamount as non­ citation of the enabling provision. The Court of Appeal in Robert Leskar V. Shibesh Abebe9 quoted with approval its decision in Anthony Tesha V. Anita Tesha10, in which it was held that:- ...The mere citation of a section without indicating the subsection and paragraphs is tantamount to non­ citation and renders the application incompetent... 3 op. cit note 1 (the Rules) op. cit note 2 the Section of the Employment and Labour Relations Act No. 6 of 2004 are only cited in the chamber a p p l i c a t i o n . They ought to be cited also in the notice of application 8 op. cit note 1 9 AR Civil Application No. 4 of 2006 CAT per Justice Rutakangwa, J.A. at Arusha u’ Civil Appeal No. 10 of 2003 CAT unreported 3 The decision in the Manager Es-Ko International Inc. Kigoma11 the Court of Appeal cemented further the requirement to cite the relevant enabling provisions including section, rules, sub-section, or sub-paragraphs or paragraphs. The Court observed in totidem verbis (in many words) that:- ...It is now settled law that wrong citation of the law, section or sub-section and/or paragraph of the law or non-citation will not move the Court to do what it is being asked to do and accordingly the application is incompetent...12 In the event I reject the preliminary point of law raised by Mr. Sandi, Learned Advocate that Rule 24 and Rule 28 of the Labour Court Rules do not move the Court to revise CMA arbitration award and that they cannot be put together, I find that arguments lacking merits and are strange. Nevertheless, I struck out the present application only to the reasons expounded by this Court suo mottu above and consequently the revision is poorly incompetent and is struck out of the Court Registry. I.S JUDGE 07/05/2015 Appearance: 1. Applicant: Present in person 2. Respondent: Mr. Sandi, Advocate assisted by Advocate M/s Diana 1The Manager Es-Ko International Inc. Kigoma V. Vicent J. Ndugumbi, Civil Appeal No. 22 of 2009 CAT ‘ 2 ibid, per Rutakangwa, Justice of Appeal at Tabora. Coram Rutakangwa, J.A., Massati, J.A., Mbarouk, J.A.