joseph elias nyaumba vs tanzania telecomunications company limited 2022 tzhcld 897 22 september 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM. MISC. APPLICATION NO. 459 OF 2021 JOSEPH ELIAS NYAUMBA........................................................ 1st APPLICANT PHILIP JAVAN CHUYO............................................................. 2nd APPLICANT FRANK AGUSTINO MKUMBO................................................... 3rd APPLICANT MERCY PASCAL........................................................................ 4th APPLICANT HARUNA RASHIDI....................................................................5th APPLICANT VERSUS TANZANIA TELECOMUNICATIONS COMPANY LIMITED.......... RESPONDENT RULING K. T. R. MTEULE, J 12th September 2022 & 22nd September 2022 This ruling is in respect of a preliminary objection raised by the respondent against an application for extension of time to file revision application against the decision of the Commission for Mediation and Arbitration. The Applicant herein is praying for the orders of the Court in the following terms: - l .That, this Honorable Court be pleased to extend time within which the applicant may file application for revision and chamber summons out of time after the Court struck out the application for representative suit. 2 . Any other order that this Honorable Court deems fit and just to grant. i The Application is supported by a joint affidavit sworn by all the 4 applicants. Opposing the application, the respondent filed a counter affidavit sworn by Alphonce Edward Alphonce who is the respondent's Human Resource Officer. The preliminary objection is to the effect that; i) The application is incompetent for failure to attach the award which the applicant ought to challenge. ii) The application is incompetent for failure to join Attorney General as a party. iii) The application is incompetent in law for being accompanied by index contrary to Rule 46(1)(2) and (3) of the Labour Court Rules G.N No. 106 of 2007. The preliminary objections raised was disposed of by way of written submissions. The respondent was represented by Ms. Lightness Godwin, State Attorney, while Mr. Richard Mwalingo, Learned Advocate represent the applicant. The contents of their submissions will be given in each point of objection as I proceed to consider them one after another. Starting with the first point of objection concerning lack of the impugned award in the application attachments, Ms. Lightness Godwin submitted that the application is incompetent for such failure to attach the award ought to be challenged. She added that the applicant failed even to 2 mention the reference number of the award or decision ought to be challenged in the intended application. Bolstering her position, she cited the case of Amos Fulgence Kalungula v. Kagera Co-operative Union (1990) Ltd T, Civil Application No. 15/04 of 2018, Court of Appeal of Tanzania, at Bukoba, (unreported) and the case of Felister Magayane v. Mabula Genge, Civil Application No. 28 of 2008, Court of Appeal of Tanzania, at Mwanza, (unreported). She quoted the following words from the Amos case supra:- " There is no doubt that the application is not premised on any decision of the High Court or this Court against which the applicant would have validly sought extension of time to lodge an application for revision. Thus, the issue is not only that the applicant has not attached the re/e vant documents with regard to the case which he considers as the bases of his application, but also that there is none which deserves the consideration of the Court". Resisting the first point of objection, Mr. Richard Mwalingo submitted that the application at hand does not challenge the award rather it is an application seeking leave to file an application for revision out of time. He further added that respondents Counsel failed even to cite which laws have been violated or which law requires an applicant to attach an award when a person lodges an application for extension of time. 3 In addressing this point of law, the relevant provision is Rule 24 of the Labour Court Rules G.N No. 106 Of 2007 which provides that; - 24.- 1) Any application shall be made on notice to aiipersons who have an interest in the application. (2) The notice of application shall substantially comply with Form No. 4 in the Schedule to these Rules, signed by the party bringing the application and filed and shall contain the following information (a) the title o fthe matter; (b) the case number assigned to the matter by the Registrar; (c) the relief sought; (d) an address at which that party will accept notices and service o fail documents in the proceedings; (c) a notice advising the other party that if he intends to oppose the matter, that party shall deliver a counter affidavit within fifteen days alter the application has been served, failure o f which the matter may proceed ex-parte; and (f) a list and attachment of the documents that are-material and relevant to the application. The above cited rule directs and use the word shall to require list of documents material and relevant to the application to be attached. That means the notice of application shall contain a list and attachment of documents that are-material and relevant to the application. In this 4 application the applicant is seeking for extension of time. Basing on the nature of the application, I am of view that the applicant ought to have attached the intended award to be revised. This document is material and relevant for the Court to ascertain the nature of the delay as to whether it is inordinate or not by considering reason for delay from the date when the award was issued to the date of filing this application. In absence of the award, it would be difficult for this Court to exercise its power of extending time as provided under Rule 56 of The Labour Court Rules, G.N No. 106 Of 2007. Since the law is very clear under Rule 24 of the Labour Court Rules, G.N No. 106 of 2007 that the documents that are-material and relevant to the application must be attached, then this Court won't allow missing of the impugned award as such document is a material and relevant for the matter. This is a defect which cannot be allowed to stand. On such basis the applicant's allegation regarding citation of law violated lacks merits. For that reason, I agree with respondent's Counsel on the relevance of the case of Amos Fulgence Kalungula v. Kagera Co­ operative Union (1990) Ltd T, Civil Application No. 15/04 of 2018, Court of Appeal of Tanzania, at Bukoba, (unreported) and the words quoted therefrom are relevant thus:- 5 "There is no doubt that the application is not premised on any decision of the High Court or this Court against which the applicant would have validly sought extension of time to lodge an application for revision. Thus, the issue is not only that the applicant has not attached the relevant documents with regard to the case which he considers as the bases of his application, but also that there is none which deserves the consideration of the Court". The above quoted words fits squarely within the circumstances of this application, From the above legal reasoning, it is my holding that the first point of objection has merit. I find no need to labour on the remaining points of law since this one, sufficiently dispose of the application. Therefore the application is incompetent. I hereby strike it out. No order as to costs is made. It is so ordered. Dated at Dar es salaam this 22nd Day of September 2022 KATARINA REVOCATI MTEULE JUDGE 22/09/2022 6