Joakim Seif Sakoro Others vs

THE UNITED REPUBLIC OF TANZANIA

JUDICIARY

IN THE HIGH COURT OF TANZANIA SONGEA SUB - REGISTRY

AT SONGEA LABOUR REVISION NO. 16492 OF 2024 (Originating from Labour Dispute No. CMA/ RUV/ SON/44/2023/22/2023) JOAKIM SEIF SAKORO ………....…….…….………….……..……….. 1ST APPLICANT AYOUB ERASTO NGWASI …..…….…..….…………………..……….. 2ND APPLICANT MOHAMED ABDUL JUMA ……..…….…….…………..……..……….. 3RD APPLICANT

VERSUS BHARYA ENGINEERING AND CONTRACTING CO. LIMITED ...…. RESPONDENT

RULING Date of Last Order: 10th October, 2024. Date of Ruling: 06th November, 2024. KAWISHE, J.: The above-named applicants filed before this court an application for revision of an arbitral award rendered by the Commissioner for Mediation and Arbitration (CMA) at Songea in Labour Dispute No. CMA/RUV/SON/44/2023/22/2023. The application is made by way of 1 chamber summons supported by an affidavit sworn by the first applicant on behalf of the other applicants. In reply to the application, the respondent not only filed a counter affidavit in which he denied the facts averred in the affidavit sworn in support of the application but also raised three points of preliminary objections on point of law that: i. The affidavit of the applicants is incurably defective for failure to meet the requirements of Order XIX Rule 3(1) of the Civil Procedure Code (Cap 33 R.E 2019). ii. The application for revision is incompetent for it being already overtaken by event. iii. The application for revision is incompetent for failure to file a mandatory notice of intention to seek revision (CMA F-10) contrary to regulation 34(1) of the Employment and Labour Relations (General) Regulations GN. No. 47/2017. At the hearing of the preliminary objections both parties appeared through their representatives. The applicants were represented by Mr. Edmund Alois Nditi, legal officer from the National Union of

Mine and Energy Workers of Tanzania (NUMET) and the respondent was represented by Mr. Leonard John Kabea, the respondent’s head of legal department. 2 When invited to argue on the preliminary objections, Mr. Kabea, the respondent’s representative was first to take the floor. At the outset, he prayed to abandon the second and third points of preliminary objection and argue only on the first point of preliminary objection. The prayer was not objected by the applicants’ representative, hence was granted by this court. Arguing on the first point of objection, Mr. Kabea contended that, Order XIX Rule 3(1) of the Civil Procedure Code (Cap. 33, R. E 2019) (the Code) provides that an affidavit shall be confined to facts which are within the knowledge of the deponent. He added that, the instant application the supporting affidavit was sworn by one of the applicants stating that he was authorized by the other applicants to swear the affidavit on their behalf. He averred that, as a general rule, an affidavit which mentions another person, the mentioned person has to swear an affidavit in order to support the facts stated in the affidavit otherwise the affidavit becomes hearsay and incurably defective. Cementing his submission, he cited the decision of this court in the case of Titho Mbilinyi Tangawizi and 7 Others vs. NAM Co. Ltd and Another, Civil Appeal No. 9 of 2023 (unreported),

in which the case of Mohamed Abdillah Nur & Three Others vs. Hamad Masauni & Two Others, Civil Application No. 436/16 of 2022 3 (unreported) was referred to. He argued that, in the latter case the Court of Appeal was of the view that any authorization to proceed with the case must be expressly reflected in the affidavit and only in few circumstances it can be accepted where there is a representative suit. He claimed that the instant application is not a representative suit, thus the affidavit is incurably defective and the application deserves to be struck out. Besides, he contended that, the affidavit sworn in support of the application leaves a lot to be desired since it is contradictory in itself. He argued that, the deponent stated that a copy of the decision in the award was issued on 20th June, 2024 but on the verification clause and jurat shows that the affidavit was sworn on 15th June, 2024 which means the affidavit was deponed before the decision. He contended further that, even if courts are encouraged to do away with technicalities, but what is found on the affidavit in support of the application is not only a slip of the keyboard but also it goes beyond the slip of pen principle. In the event, he prayed for the application to be struck out. In his reply to the submissions, the applicants’ representative, Mr. Nditi submitted that, the documents filed in this

application were attached 4 with the notice of representation signed by the applicants in which Mr. Edmund Alois Nditi was appointed to be their representative and the first applicant was appointed to sign all the documents relating to this application. He insisted that, the act of the first applicant swearing an affidavit on behalf of the others was correct since he was fully authorized by his co-applicants. He maintained that, the decisions made in the case of Titho Mbilinyi Tangawizi and Others (supra) and Mohamed Abdillah Nur (supra) stressed on the issue of instruction and consultation whereas, the applicants in this application filed the notice of representation authorizing the first applicant to be their representative in order to comply with the legal requirement stated in the above cases. He argued that it is true that, when a person is mentioned on a material point that person has to swear or affirm through an affidavit. However, where the applicants have a common interest, it does not require an affidavit to be sworn by the mentioned person. Moreover, Mr. Nditi argued that, a preliminary objection as stated in the case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) 1 EA 696, must be on point of law. He insisted that, the respondent’s claim that the facts contained in the affidavit are 5 contradictory is not on point of law. On the

defect found on the jurat of attestation, he submitted that, it was a slip of the pen, that instead of writing 25/6/2024 it was written 15/6/2024. He prayed for that error to be ignored by this court and dismiss the preliminary objection without costs and the application be heard on its merit. In his terse rejoinder, Mr. Kabea submitted that, the argued point of preliminary objection is on point of law. He contended that, this is not a representative suit due to the fact that, before the Commissioner for Mediation and Arbitration (CMA), the applicants appeared in person and gave their evidence. He averred that the affidavit filed in this application is defective and he prayed for this application to be struck out due to the observed legal anomalies. Having keenly followed the submissions from both sides, it is now time to deliberate on the fate of the preliminary objection raised by the respondent’s representative. The main contention in the preliminary objection is on the issue whether the affidavit sworn by the first applicant on behalf of the other applicants was properly sworn to make the application competent before this court. It is the respondent’s view that, an 6 affidavit deponed by one person stating that he or she is authorized by other person is compared to hearsay evidence and it becomes incurably defective unless the other person also swears an affidavit to that

effect. Thus, he has contended that, the present application is incompetent for the reason that the affidavit supporting the application was sworn only by the first applicant stating that, he was instructed by the other applicants but no affidavit sworn or affirmed by the other applicants to prove what has been averred by the deponent. The applicant’s representative is of different view that, given the fact that, the applicants have a common interest in the present application, they appointed the first applicant through the notice of representation to sign all documents in this application on behalf of the other applicants. In our jurisdiction, it is a trite law that, an affidavit which provides facts given by another person, that other person has to swear an affidavit otherwise the deponed facts become hearsay. This was stated so by the Court of Appeal in the case of Power and Network Backup Ltd vs. Olafsson Sequeira, Civil Application No. 307/18 of 2021 (unreported), where the Court had this to state: 7 “It is a settled position of the law that, if an affidavit mentions another person, that other person must swear an affidavit otherwise it will be hearsay.” Similar position was held in the case of Dianarose Spare Parts Ltd. vs. Commissioner General Tanzania Revenue Authority, Civil Application No. 245/20 of 2021 and Benedict Kiwanga vs. Principal Secretary Ministry of Health,

Civil Application No. 31 of 2000 (both unreported). In the instant application, the applicants’ representative is of the view that, since this is a labour dispute revision originating from the Commissioner for Mediation and Arbitration and the notice of representation was issued, the affidavit sworn by the first applicant was proper to make the application to stand before this court. I had an ample time to go through the notice of representation that was filed by the applicants in this application. The notice was filed in accordance to the provision of rule 43(1)(a) & (b) of the Labour Court Rules, 2007 and section 56(a) of the Labour Institutions Act (Cap. 300, R.E 2019). For easy of reference and simplicity, I find it is pertinent to reproduce the provisions: 8 “Rule 43(1) A representative who acts on behalf of any other party in any proceedings shall, by a written notice, advise the Registrar and all other parties of the following particulars:- (a) The name of the representative; (b) The postal address and place of employment or business; and any available fax number, e-mail and telephone number.” “Section 56:- In any proceedings before the Labour Court, a party to the proceedings may appear in person or be represented by- (a) an official of the registered trade union or employers’ organization;’ According to the cited provisions, the notice filed complied to the provision

of section 56(a) of the Labour Institutions Act (supra) which requires a person representing a party to the proceedings to give his particulars to the court and the other party. In this application, Edmund Alois Nditi from NUMET was appointed to be the representative for the applicants. Also, the notice appointed the first applicant to sign all documents relating to this application. What is haunting, is whether the representation stated under the above provision extends to the appointment of a person who may sign documents on behalf of the applicants and whether to sign a document includes swearing or affirming an affidavit? 9 Before going further to look for the answers in the two questions, I have carefully scrutinized the provisions of section 56(a) of the Labour Institutions Act (supra) which was used to appoint the two persons named in the notice of representation. It has come into my knowledge that, a representative named in the provision aforementioned is an official of the registered trade union or employers’ organization. In that case, the notice filed introduces Edmund Alois Nditi, from a registered trade union abbreviated as NUMET and his particulars and address were well furnished. In respect to the appointment of the first applicant as an authorized person to sign all documents relating to this application, in my view, I find his appointment was not in conformity

to the law. The provision covers only on the person who may represent the party in the proceedings and not to sign all documents on behalf of the party. It is my considered view that, even if the appointment made to the first applicant in this application would have been properly made, it does not extend to the act of swearing an affidavit. The applicants’ representative in his submission has argued that the law under rule 44(2) of the Labour Court Rules, 2007 allows one person to represent the others when there are numerous applicants with common interest. This has been vehemently contested by the respondent’s 10 representative who argued that, this is not a representative suit. I have clearly scrutinized the provision of rule 44(2) of the Labour Court Rules, 2007 and find that the provision provides for the procedures on representative suit upon which a party representing the other applicant must do so after seeking a leave from the court. In the instant application there was no leave granted to the first applicant to represent the other applicants. This makes this court to find the applicants’ representative has no leg to stand in this application. Therefore, I agree with the respondent’s representative that, the applicants would have jointly sworn an affidavit or swear an affidavit authorizing the first applicant to swear on their behalf. Failure on the part of the

applicants to comply with that legal requirement makes the affidavit sworn by the first applicant in this application to be incurably defective. The affidavit supporting the application at hand does not meet the legal requirements of the affidavit as stated in the cases cited earlier. In the event, I find the first point of preliminary objection is merited and the application is struck out for being supported with an incurably defective affidavit. Given the nature of the suit, I give no order as to costs. 11 It is so ordered. DATED and DELIVERED at SONGEA this 06th day of November, 2024. E. L. KAWISHE

JUDGE COURT: Ruling delivered in the presence of Mr. Edmund Alois Nditi applicants’ representative and in the presence of Mr. Leonard John Kabea, the respondent’s representative. E. L. KAWISHE

JUDGE 06/11/2024 12