japhet daud mkubwa suing as a legal representantive of christian bulandi vs mahashree agro processing tanzania limited 2023 tzhc 23214 30 november 2023

K i'r 9- IN THE HIGH COURT OF TANZANIA (MOROGORO SUB-REGISTRY) AT I3C MOROGORO LABOUR REVISION NO.08 OF 2023 (ORIGINA TING FROM APPLICA TION NO. CMA/MOR/08/2023) BETWEEN JAPHET DAUD MKUBWA APPLICANT (SUIND AS A LEGAL REPRESETANTIVE OF CHRISTIAN BULANDI) VERSUS WiAHASHREE AiGRO PROCESSING TANZANIA LIMITED RESPONDENT RULING 30'f^ Oct, & 30^*^ Nov, 2023 CHABA, J. The Applicant in this Application for Revision, Japhet Daud Mkubwa (The Legal Representative of Christian Bulandi) filed a Notice of Application for Revision under section 91 (1)(a) &(b), 91 (2)(a) &(b) and section 94 (1)(b) (1) of the Employment and Labour Relations Act, No. 6 of 2004 as amended by section 14 of the Written Laws (Miscellaneous Amendment) No. 3 Act No. 17 of 2010 and Rule 24 (1),(2) and (3) and Rule 28(1)(c),(d) & (e) of the Labour Court Rujes, ^GN No. 106 of 2007, and any enabling Page 1 of8 •t % provision of the law. . The Applicant prays for revision of the proceedings and Award of the Commission for Mediation' and Arbitration (CMA) No'.' CMA/MOR/08/2023 pronounced by Kayugwa Haji, the Arbitrator on 6^^ April, 2023. ■ ■ ^ The Applicant also filed the chamber summons'supported by the affidavit of Japhet Daud Mkubwa, As a Legal Representative of Christian Bulandi. In the affidavit, the Applicant |averred that, Mahashree Agro Processing Tanzania Limited (herein shall be referred to as the Employer) had employed the applicant herein as the Project Manager since 16/07/2022. As gleaned from the Court records, the date of termination or ♦ the date of expiry of the employment contract was at issue before the CMA. While the Employer maintained that, the contract of employment had ended on October, 2022, the Employee said, although his last salary was paid in October, 2022, but he continued reporting to work as the Human Resources Manager and continued attending to her telling him that, his issue is still being deliberated, and he was waiting to receive an official termination letter. That, the applicant tendered his resignation letter on 24*^ January, ^ i 2023 and this date, according to the employee is the date his contract employment had ended. At the CMA,the Employer raised an objection that, the claim before the CMA was filed beyond the prescribed time of 60.days, as the matter before Page 2 of8 the CMA was filed on 30^'^ January, 2023 while the dispute arose in October, 2022. The employee contended that, he had fi|ed the claim on time as the dispute arose the date, he tendered his resignation. At the end of the day, the CMA ruled that the matter or claim was time barred as it was instituted outside the sixty days prescribed under Rule 10 (1) and (2) of Labour Institution Mediation and Arbitration Regulations, GN. No. 64 of 2007. It was the CMA's decision that, the dispute arose on the date which the Employer had stopped paying salaries to the Employee. Aggrieved by the decision of the CMA, the Applicant filed the present Application, but against the application the Employer who was represented by Mr. Bahati Hacks, learned advocate took an objection that, the verification clause of the affidavit in support of the application is incurably defective, and that the Power of Attorney issued to the Legal Representative of the Employee is defective. The objections were, determined by written submissions. In support of the first objection, the counsel for the respondent, Mr. Bahati Hacks argues that, paragraph 19 (i), (iii), and (iv) were not verified, and this rendered the affidavit defective and he urged the Court to strike it out. To buttress his contention, he referred this Court to the cases of Jonester Traseas Rwabigendelela Vs. Elizabeth Nelson Ngaiza/ Revision No. 6 of 2022, HC, Sumbavyanga, and Silima Vuai Foum Vs. Registrar of Page 3 of8 , i • r .''-i ■ K' •J.-' '''' 1 Cooperatives and 3 Others (1995)'T'ILR. However,' he did not mention the page of the report, but he quoted the holding of the Court, where it was stated that; ■ ■ .■ ''affidavit which is notproperly verifiedis defective and ■ I' its defectiveness goes to the-root of the case and. . cannot^ be cured by the principles of overriding objectives. As to the 2"^ objection, Mr. BahatI Hacks submitted that, the Application for Revision is not maintainable for the legal representative of the Applicant has no focus staridi because of the defective Power of Attorney. To substantiate his argument, Mr. Bahati accentuated that, the power of attorney given to'Ja'phet Daudi Mkubwa by Christian Bulandi'is defective as it does not state if the Donor is out of the Country, and did not state the \ reasons for conferring the powers to the Donee as required under section 14 of the Registration of Documents Act,[CAP. 117 R. E. 2002]. In support of his argument, the counsel referred this Court to the case,of Najma Hassanali Kanji (Suing through Mohamed Hassanali Kanji) Vs. Ramadhani Hamish Ntunzwe, Land Case No. 93 of 2016, HC, Dar Es Salaam, where it was held that: Page 4 of8 .. .. person cannotrepresentanother person in a suitif - : ^ , the representedperson is present in Tanzania and is v physicaily and mentaily fit" In view of the above'submission, the respondent / Employee prayed for the dismissal of the application, based on the above stated reasons. I agree with the submission of the applicant's counsel, Mr. Michael Mwambanga and the case cited, the case of Ferdinand Nsakuzi Vs. Director General PCCB, Revision No. 07 of 2018 that, the verification of paragraphs includes verification of sub-paragraphs, and there is no requirement of the law to verify each sub-paragraph as paragraphs contained in the. paragraphs are part of those paragraphs which are already verified. Indeed, the first objection has no legal basis, .and is hereby overruled. ■ Regarding the.2"^ objection, firstly, it is true as-argued by.the counsel for the applicant, Mr..Mwambanga that, section 14 of:the Registration..of Documents Act (supra).cited .in Nafma Hassanali Kanji's case did not state that, the; donor of the povyer of attorney must be residing out of the Country, and that reasons for conferring power of attorney must be stated. Nevertheless, it is stated Jn the present matter that, the Donor Mr. Christian Bulandi is abroad in German. The power of attorney was in compliance of Page 5 of8 i the- law,- and this being Labour" matter, 'as long as the Notice of Representation Has-been fileci, and parties cah'be-represented byTriends or relatives. ■ ' ■ However, concerning the 2"^ point of preliminary objection, the person who holds the power of attorney Is not'permitted'to file a claim' in his own names, and similarly, the person who holds the" power of attorney cannot feature as'the plaintiff or applicant or the defendant of respondent In any claim. The claim ought to have been filed In the names of the Employee himself, in this case-Mr. Christian Bulandi, and in the proceedings, it would ( have.been shown that he is represented- by Japhet Daudi Mkubwa who is holding the power of attorney for him. Filing the claim in the names of the Donee of the Power of Attorney is un-procedural, and ah Irregularity In the proceedings. I understand, however that, there is no law which prohibits filing of complaint through power of attorney either on behalf of the Individual or on behalf of the Company. Only when the validity of the power of attorney is questioned, the Court could be called upon to decide the genuineness or the validity of the power of attorney. In this case. It Is noticed that, the complaint was filed by Japhet Daud Mkubwa who Is ! ; the power of attorney holder. The principle is that, the suit should be in the names of the Donor, the real complainant / plaintiff and not in the names Page 6 of8 of power of attorney holder. Showing power of attorney holder as the complainant, granted that the Power of Attorney holder could represent the complainant and present complaint on behalf of the complainant, but the complaint or suit should be in the names of the Donor, and in the present case, the claim before CMA should have been in the names of Christian Bulandi and not Japhet Daud Mkubwa, the holder of the Power of Attorney. In fine and for the reasons stated, the application being filed by the wrong party, a party who lacks locus standi) is hereby strike out, and the second objection is hereby sustained. Resultantly, the Application for Revision is hereby stricken out for being filed by a person who lacks focus stand!. This being the labour matter, I shall not order costs. Order accordingly. DATED AND DELIVERED AT MOROGORO this 30^^ day of November, 2023. •/O -3r -5^ Judge 30/11/2023 Page 7 of8 Court: Ruling delivered this 30^^ day of November, 2023 in the absence of both sides. Of- o c o A.W. bahdo X > uJ ■< DEPUTY REGISTRAR 30/11/2023 Court: Rights of the parties to appeal to the CAT fully explained. OF O c ■y X A.W. Mmbando u-J \ DEPUTY REGISTRAR 30/11/2023 Page 8 of8