juma ibrahim mkoma others vs association of tanzania tobacco traders 2018 tzhcld 8 19 march 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT TABORA MISCELLANEOUS APPLICATION NO. 04 OF 2016 1. JUMA IBRAHIM MKOMA.................... .1st APPLICANT 2. KASHINDYE OMARY ABDALLAHAMAN 2nd APPLICANT 3. JOHN MATHEW DAUD....................... ,3rd APPLICANT VERSUS ASSOCIATION OF TANZANIA TOBACCO TRADERS....RESPONDENT RULING Date of Last Order: 08/03/2018 Date of Ruling: 19/03/2018. L.L.Mashaka, J. This ruling is in respect of preliminary objection raised by the respondent Association of Tanzania Tobacco Traders through Mr. Mussa Kassim, Learned Counsel for the respondent that the verification clause to the 3 affidavits filed by the applicants in support of the chamber summons had defects thereto. That, they have not disclosed the name of the verifier at the verification clause. Therefore, since the names of the verifiers are missing render the affidavits incurably defective liable to be struck out. Learned Counsel referred this Court to the Court of Appeal of Tanzania case of Econofinance Company Ltd (EFC) Vs. Anchor - Clearing and Forwarders and Another, Civil Application No. 54 of 2013, Court of Appeal of Tanzania at Dar Es Salaam (unreported) at pages 3 & 5. That the Court of Appeal of Tanzania held that this application is liable to be struck out because the affidavits are incurably defective. He further contended that if the affidavit are struck out, the application will have no legs to stand. In response Mr. Masendeka Anania Ndayanse, Learned Counsel for the applicants argued that the names of the verifiers on the affidavits were indicated in there, but changed his line of argument and prayed to abandon it. Learned Counsel contended that the authority of the Court of Appeal of Tanzania decision by a single Justice is distinguishable with the facts of the case at hand in the sense that the Justice did not mention in her decision that the name of the verifier not in the verification clause, that it was not held so. That it was the affidavit which was held the same was defective. Furthermore Learned Counsel further argued that in the cited case, the applicant had concede to the defect at page 4 of the judgment. He insisted that there was no mention throughout the judgment that the Court of Appeal of Tanzania relied upon the lack of the verifier in the affidavit. It was their humble submission that the said judgment was not in favour of the preliminary objection. That the foregoing notwithstanding, there is no law suggesting that the name of the verifier should be included in the verification clause. In that premise, Learned Counsel for the applicants humbly prayed the preliminary objection be overruled with costs because it was frivolous and vexatious. In rebuttal, Learned Counsel for the respondent submitted that the decision of the Court of Appeal is a law itself of which under the principle of stare decisis, this Court is bound to follow whether it is good or bad and that it was a recent decision delivered on 9th August 2016. Learned Counsel emphasized that being a decision of a single justice of the Court of Appeal of Tanzania or Full Bench of the Court of Appeal of Tanzania will remain to be a decision of the Court of Appeal of Tanzania binding on this Court. That, as pointed out at page 3, paragraph 1 of the cited case, the bullet no. 3 name of verifier not in the verification clause was an issue for decision. That Learned Counsel for the applicant in the cited case did concede because he knew the need to put the name of the verifier. The Court of Appeal then ruled out that the affidavit lacking the name of verifier is a defective affidavit which cannot support the application. The forum to challenge that affidavit as to the allegation that in the decision where Learned Counsel did concede, it is open before the Court of Appeal of Tanzania and not this Court. That by conceding to the defects and the ruling of the Court of Appeal of Tanzania, the name of the verifier has to be included in the verification clause. Learned Counsel for the respondent therefore, prayed that preliminary objection be upheld and the application be struck out. On the issue of costs prayed for by Learned Counsel for the applicants, Learned Counsel for the respondent contended that their prayer was, should their preliminary objection be upheld, in the same line they also pray for costs. 3 Having gone through submissions by both parties and record at hand the issue for determination is whether or not the preliminary objection raised by Learned Counsel for the respondent is of merit. The issue is on the name of the verifier in the verification clause of the affidavits in support of the application before the Court. Learned Counsel for the respondent relied on the decision of the Court of Appeal which struck out the application following lack of name of the verifier in the verification clause. Learned Counsel for the applicants contended that a decision of the Court of Appeal issued by a single Justice of Appeal was not law in itself. That contention is hereby rejected by this Court as it does not bear any justifiable legal truth therein. The three affidavits in support of the application at the verification clauses have no names of the one who verified the information therein. By the principle of stare decisis, this Court is bound by the decision of the Court of Appeal of Tanzania in the cited case of Econofinance Company Ltd (EFC) Vs. Anchor - Clearing and Forwarders and Another, Civil Application No 54 of 2013, CAT at Dar Es Salaam, (unreported) Oriyo, J.A.; whereas lack of the name of the person who verified the information was held amongst defects which render the application incompetent. This Court finds the application is defective as submitted by Learned Counsel for the respondent, and the preliminary objection therefore is upheld. Learned Counsel for the applicants and the respondent have prayed for costs hitherto. This Court finds the preliminary objection raised by the respondent was based on a point of law hence not frivolous or vexatious to warrant the application of Rule 55(1) of the Labour Court Rules, GN 106/2007 to grant costs. The prayer for costs is with no merit. The preliminary objection is upheld and the application to file representative suit is accordingly struck out of the Court register. For the interest of justice the applicants are given a last chance to come to this Court with incompetent applications. I grant the applicants leave to file a competent application within 14 days from today. It is so ordered. L.L.Mashaka JUDGE 19/03/2018