20130823 TZHC Dar es Salaam

! I IN THE HIGH COURT OF TANZANIA · 1 LABOUR DIVISION ·.,r ,.. AT DAR ES SALAAM KHAMIS MUHONDE & 42 OTHERS ..................................... APPLICANT VERSUS ! i QUIAM STEEL ................................................................. RES PON DENT {Original TAN/CMA/126/08) RULING 17/7/2013 & 23/8/2013 S. A. N. WAMBURA, J. ! ! This ruling is pursuant to an application for leave to appeal to the Court of i .. Appeal of Tanzania made by Khamis Muhonde & 42 others by way of notice of appeal and Chamber Summons under the provisions of Section 5(1)(C ) of the Appellant jurisdiction Act of i979, Rule 45(a) and (b) of the cJurt of Appeal 1 Rules 2d09 GN No. 368 of 2009. It was. supported by an affidavit of the 1st applicant one Khamis Muhonde. In response the respondents filed a counter affidavit affirmed by one Kara Remtulah, the Principal Officer of the respondents opposing the application. At the hearing it w~s; agreed that the application be argued by way of written submissions. I thank both parties for adhering to the schedule. ! I I I '1 ;..:1 C In granting such applications this court has to determine whether there is ! I any point of law to determine by the Court of Appeal. !,it/" However before-- I could de~idf ,_t~e matter, I noted that the application ,. , . ,.,t.... f-,.11,1 (' . ' was improperly moved:,into court_ ...,Apart form the fact that both the affidavit and -,·..: counter affidavit are defective for want of the name of the person attesting the same, the citations on the application are again incomplete. This application was brought by Chamber Summons supported by an affidavit of one Khamisi Muhonde a representative for the applicant under the provisions of Section 5(1) of the Appellate Jurisdiction Act of 1979 Rule 45(a) and (b) of the Court of Appe?)I Rules 2009 GN. No. 368/2009. Therefore, the , I I · application is incompetent· for incomplete citation of the enabling provisions of the law. In the case of M/S Mansoor Oil Industries Limited Vs. Susan Reuben, Misc. Application No.1/2012 the Court directed that and I beg to quote:- ' . I j ' "The right to appeal against this courts decision to the Court of Appeal is provided -for under Section 57 of the Labour Institutions Act7 of 2004. Such an appeal is required by Rule 54 of the Labour Court Rules, GN 106/2007 {LC · rules), to be 'ill conformity with Court of Appeal Rule~ 1979{Counter Affidavit Rules), which creates a requirement for leave....... '' 2 ( now a party, seeking such leave of this court has to do so by filing an application under Rule 24(11) of the - Labour Court Rules read together with all the provisions cited immedia'fely above. // . ·"° .,, . .. . . l':ji] "). . . -,.,.,,....... . ....., ~-•; ..... In the present ·application the applicant cited Section . 5(1)( C) of the ! i Appellate Jurisdiction Act as well as Rule 45(a) and (b) of the Court of Appeal Rules but did not cite section 57 of Labour Institutions Act and Rule 54 of the Labour Court Rules. Thus this application suffers from non citation of proper enabling provisions. It is now settled law 1t~at non citation, wrong citation or incomplete citations of enabling provisions of the law renders the application incompetent as it was held in the case of Chama cha Walimu Tanzania Vs. AG, Civil Application No. 151/2008 where a court state that and I quote:- "....... non citatian; and or wrong citation of ·an I . enabling provision render the proceedings incompetent. '' In the circumstances, the only remedy is to strike out the application and I accordingly strike out the application for being incompetent. Applicants are at 1 I liberty to refile the same within seven days if they still wish to persue the matter. . •' ~-,, S.A.N.¼a~~i '--JUDGE 23/8/2013 ! i. 3 Date: 23/8/2013 · • . Coram: Hon: S.A.N.Wambura,J Applicant: •.,,·· (.'.•"'"· For Applicant: Present ~: .. ·.~; Respondent: <· i . . , I . . . .· ForRespondent: Mr. Kara R~mtulah Representative · CC: · Josephine Mbasha ' . ' Court: Matter is for ruling and ruling has been delivered this 23 rd day of August, 2013 at the presence of one applicant Mr. Khamisi Muhonde and Mr. Remtulla . . , .. I ... ....... , representative ofthe responden~. 't . ' ' I . () '\' -·s.A.~amriura L/]UDGE _23/8/2013 1, ,..·1 1· ·•. . -·. I I i. 4