mahamudu mohamed mbilu vs js khambaita 2023 tzhc 17550 24 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION (AT MOSHI) REVISION NO. 16 OF 2022 (C/F Labour Dispute No. CMA/KLM/MOS/ARB/61/2021) MAHAMUDU MOHAMED M B ILU ..............................APPLICANT

VERSUS J.S KHAM BAITA......................................................... RESPONDENT

RULING Last Order: 25th April,2023 Ruling: 24th May, 2023 MASABO, J.: - Aggrieved by an award of the arbitrator in C/F Labour Dispute No. CMA/KLM/MOS/ARB/61/2021, the applicant has moved this court for reversal of the award. The respondent is objecting the application. She has raised a preliminary objection on point of law which is the subject of the present ruling. Her two limbs of the preliminary injection are that; 1. The Applicant has sued or instituted this labour dispute against the non-existent legal entity.

2. The chamber summons has serous defect for not being dated and signed by the registrar, thus contrary to Rule 8(2)(a) of the Labour Court Rules GN. 106 of 2007. The preliminary objection was heard in writing. The applicant was represented by Mr. Lucas Nyagawa, Advocate while the respondent was represented by Mr. Paul Manyara Kileo, her Human Resource Officer. Page 1 o f 8 In his submission in chief, Mr. Kileo asserted that the labour dispute filed by the applicant before the CMA was instituted against J.S. Khambaita Ltd while the respondent's company is registered as J.S. Khambhaita Ltd. Implicitly, the applicant sued a wrong party and in so doing, she made a substantive error, not a technical or clerical mistake as was the held in Commercial Bank of Africa Tanzania Ltd vs Denis Rutahilwa and Another Misc. Application No. 226 of 2017 High Court Labour Division at Dar es Salaam. He annexed the certificate of incorporation of the respondent to support his argument. On the second limb, Mr. Kileo submitted that the application is titled THE LABOUR COURT ZONE CENTRE MOSHI whereas such court does not exist. He averred that the appropriate title for the court should have been "IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA" MOSHI SUB REGISTRY AT MOSHI. Mores so, he faulted the application for not including the case number, which is contrary to Rule 7(1), (2), (3), (4), (5),

(6) and (7) of the Labour Court Rules; for not being signed by the Registrar contrary to Rule 8(2)(a) of Labour Court Rules and for not being stamped by a court seal contrary to Rule 24(2) of Labour Court Rules G.N 106 of 2007. He amplified that, the application ought to have been signed by the registrar as per the mandatory requirement under Rule 7(1) of the Labour Court Rules. Based on this he prayed that, the application be dismissed and the applicant be allowed to rectify the same. In reply, Mr. Nyagawa, learned counsel for the applicant argued the preliminary is incompetent as it raises factual issues as opposed to legal issues. He proceeded that, the objection out to be raised from pleadings of parties not from the extraneous documents such the certificate of Page 2 o f 8 incorporation which the respondent has appended to his submission. He contended that the preliminary objection is incompetent and supported his argument with the case of Shose Sinara vs Stanbic Bank Tanzania Ltd and another Civil Appeal No. 89 of 2020 CAT at Dar es Salaam. In the alternative, he proceeded that the disparity pointed out by the respondent is too minor as it is a mere clerical error and inconsequential as it has rendered no injustice to any party hence curable as per Christina Mrimi vs Cocacola Kwanza Bottles Ltd, Civil Application CAT at Dar es Salaam (unreported) whose facts resonate well

with the facts herein compared to the Case of Commercial Bank of Africa Tanzania Ltd vs Denis Rutahilwa and Another (supra) cited by the respondent. On the 2nd point of objection, Mr. Nyagawa averred that contrary to the allegations of the respondent, the chambers summons was signed by the registrar and the application was assigned a number, that is No. 16 of 2022. He argued that even if the same was not signed, the applicant would be blameless as it was occasioned by court officials, not him. He added that, even if such defects exist, they would not flop the case as they are non-fatal and curable through amendment of the application. He also argued that Rule 8(2) of the Labour Court Rules was wrongly cited t as it does not provide for signature of the registrar. As to the name of the court, Mr. Nyagawa averred that he wrote the mentioned name of the court as per directives of the Chief Justice Circular reference No. CAB. 50/101/10 of 20/04/2018 which designated all judges to be judges of Labour Court centers. He attached the said circular to his submissions. He asked the court to dismiss the objections with costa. Page 3 o f 8 In rejoinder, Mr. Kileo argued that the objections emanated from the documents filed before this court. He contended that, the applicant has conceded to all the irregulates he has mentioned, in that he has admitted that the application was not signed,

that the name of the respondent was wrongly written and the chambers summons served to the respondent was not signed by the Registrar of this court. He underscored that, it was the duty of the applicant to make sure that his application was numbered prior serving the same to the respondent by serving him an application which was not numbered he offended Rule 8(2)(a) of the Labour Court Rules and he concluded with a prayer for dismissal of the application. I have considered the submissions in support in in opposition and will now proceed to determine the preliminary objection starting with the point that the application has been filed against a non-existent legal entity. Both parties agree that that there is an omission of letter "H' in the name of the respondent. Instead of J.S. Khambhaita Ltd which is its actual name, it is written J.S. Khambaita Ltd. The parties have locked their horns on the effect of such omission. Whereas the respondent considers it fatal and incurable, the applicant has passionately argued that it is merely a typographical error hence curable as it has occasioned no injustice to the to any of the parties. On my part, I have read the divergent decisions relied upon by the parties, that is Commercial Bank of Africa Tanzania Ltd vs Denis Rutahilwa and Another(supra) and Christina Mrimi vs Cocacola Kwanza Bottles Ltd (supra), with keen interest. Both dealt

with a similar issue. In Commercial Bank of Africa Tanzania Ltd vs Denis Rutahilwa Page 4 o f 8 and Another(supra) the omission of Tanzania Limited from the name of the respondent was found fatal and incurable by this court but in the second case, the Court of Appeal found out that the mistaken citation of the respondent's name as Coca Cola Kwanza Bottles Ltd instead of Coca Cola Kwanza Ltd, was a minor defect curable through amendment. The Court of Appeal, while citing with approval two persuasive decisions from the UK in the case of Re J&P Sussman Ltd (1958) 1 All ER 857 and Evans Construction Co. Ltd vs Charrington Co. Ltd & Another (1983) 1 All ER 310 both of which took a liberal view in curing the anomaly. In Re J&P Sussman Ltd (supra) the petition for winding up a company proceeded in a wrong name and the anomaly was only discovered during the winding up but the court found it curable through amendment. In Evans Construction Co. Ltd vs Charrington Co. Ltd & Another (supra), the land lord had been inadvertently named Charrington Co. Ltd instead of Bass Holding Ltd. Holding the anomaly curable, the court held that, "As the mistake in this case which led to using the wrong name of the current landlords did not mislead the Bass Holdings Ltd., and as in my view there can be no reasonable doubt that as to the true identity of the person intended to be sued, this case falls

within the scope of RSC Order 20, r.5 (3). It would be just to correct the name of the respondent from Charrington Co. Ltd instead of Bass Holding Ltd. Holding Ltd." Inspired by this decision, the apex court declined the application for review and ordered in its place, an amendment to correct the name of the Page 5 o f 8 respondent from Coca Cola Kwanza Bottles Ltd. to Coca Cola Kwanza Ltd. It also took the same approach in Joseph Magombi vs Tanzania National Parks (Civil Appeal 114 of 2016) [2021] TZCA 464 (Tanzlii) where dealing with a similar issue, it held that; "For the purpose of meeting substantive justice, we find it more appropriate to invoke application of Rule 4 (2) (b) of the Rules hand in hand with the overriding objective as per section 3A (11 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2019, as amended by The Written Laws (Miscellaneous Amendments) (No.3) Act, 2018, and allow the amendment of the notice and memorandum of appeal rather than striking out the appeal. This is because bv striking out it means the appellant has to start all over, the process which might take another number of years. On the same breath, we find Mr. Mwaluko's contention that we nullify all the proceedings below, a bit farfetched initiative from dispensation of substantive justice On the strength of these binding authorities, I find and hold the anomaly minute and curable. Besides

as correctly argued by the applicant, the wrong name was used in the application before the CMA. The respondent never challenged it and no miscarriage of justice resulting from the anomaly has been demonstrated by her in the instant application so as to warrant the prayer for dismissal. And, capping it all, unlike in the above authorities where the mistake was fairy notable, in the present case it is a minor clerical omission of letter "H" which cannot supersede the dispensation of justice. To that extent, I am of the firm view that it is Page 6 o f 8 farfetched to require the proceedings and the award of the CMA to be nullified for this anomaly which can easily be cured through amendment. On the 2nd limb of the preliminary objection, I have noted with great concern that while submitting in support of this limb of the preliminary objection the respondent raised two points alien to her notice of preliminary objection. In particular she has complained that the name of this court was wrongly cited and the case number was not shown in the pleadings availed to her. I refrain from addressing these two points as they were irregular raised in the course of submission and with no leave of this court. In any case, by their nature, none of them go to the root of application and no material was rendered on how they prejudiced the respondent. As for the signature of the Deputy Registrar and

the court seal, much as it is apparent that the chamber summons bears no signature of the Deputy Registrar of this registry, it has the court seal annexed at its first page thus there is no dispute that it was presented and properly filed in this court. Besides, even if this was not, the applicant bears no blame as he is not the deputy registrar of this registry. The anomaly if any was solely occasioned by this court hence, he cannot be condemned. In any case, this too does not affect the substance of the application. To the extent above demonstrated, the preliminary partially fails. Leave is subsequently granted to the applicant to correct the name of the respondent by inserting the missing letter 'H' and the application proceed Page 7 o f 8 on merit. Costs to be shared by each of the parties shouldering its respective costs. DATED and DELIVERED at MOSHI on this 24th day of May 2023 J.L. MASABO

JUDGE Page 8 o f 8