20140807 TZHC Mwanza1

I . ·I IN THE HIGH COURT OF TANZANIA LABOUR DIVISION ATMWANZA REVISION NO 52 OF 2013 MANSOOR INDUSTRIES LTD ............................................... . VERSUS R.M.RWEYEMAMU, J:• r This ruling is in respect of Pre~ary <jp)tict~ns (PO) raised by parties in this application against each other's ,4ading~~- Kisyeri, a personal representative of the. respondent objected to the ~p~tc,a}~~ four grounds, although at the time of hearing he ',. V argued only two of thelJ).,!iaJJS 6t~J2P~1bthe others. The applicant through their representative . ~ ·~ T.1S..:~ M ~:~',;• '~ Mr. P. R.K. .Rugaimkamu, AdViQcate, objected to the procedure used by the respondent to : ~ii.-. ~~· .... -..,,:'er-. "Y~~ j~- 0pp0Se the appiiqation?,tl,pleceed to examine and decided the raised POs, commencing :¥,;;,., ......:,.. ~ with those rafs~9.,&9~insfthe application . .·.~~- .r., ff, • •;~,1.- The application, which is for revision of the CMA award, was moved into court under Section 91(1) and 94(1) (b) of the Employment and Labour Relation Act, No. 6 of 2004 (the. ELRA) and Rules 24(1) and 28(1) (c), (d) and (e) of the Labour Court Rules 2007 GN 106 of 2007 (the Rules). The cited provisions attracted PO by the respondent on grounds that: [1) "1. The applicant's notice of application is just a mere notice- incomplete, improper and incompetent to move the court properly, for its non-citation and want of the specific provision of which the notice and affidavit reference to be made ought to support the application. 2. That the applicant's affidavit is illegal, fatal and incurably defective, for the applicant who has introduced himself as Muslim has sworn instead of taking affirmation." In support of ground 1, Mr. Kisyeri submitted that the app incomplete citation of enabling provisions of the law. ans .· Rugaimkamu submitted that the application was proper before the cou · · . Section 91 (1) read· together with section 94(1) (b) of the ELRA indicat t what was sought was a revision of the CMA award. He submitted furthdl1lfftla ,t::- ' pplications, citation of Rule • .t ~ 24(1) of the rules suffices, because th ,'. otice · substantially in conformity with the form prescribed under Rule 24(2). Does the applicatio::~ .:am incomplete citation? My response is yes. It has ' ff~h_.••-•4i~, ~t~: been the acq~pted prooedureFtt! this Court that complete citation in respect of application for ·Jijf:.:.. t??o/.>,,, . i:.(~'. revisions, invo' .:~ ·~c,fatr.on -( ;both provisions empowering the Court to revise a CMA :· "'.~f decision, (~~&1199 91~(,tf&f the ELRA) and those indicating grounds uoon which this Court is ; f . "1,~1;_ ·. -~;: em::mwerec: .. toir:evise c C!vV. award/decision o'· oroceedina2- . ..... tha: orovisior: if' Sectior 8i(2') ' ' ' , either (a}'{f:lr_~{o) or (c)) of the ELRA. Specifically, citation of Section of 91 (2) specifies whether revision. is sought on grounds of 2(a)," .... misconduct on the part of the arbitrator" or, 2(b) "... the award was improperly procured" or 2(c)" .... the award was unlawful, illogical or irrational" The said provision have to be cited together with Rule 28(1) (a) to (e) of the Rules (whichever is applicable) which I hasten to state was properly cited in this case. [2] Having decided that the application suffers from incomplete citation, what then, is its fate? Consequences of such a mishap, is now settled law. Non citation, wrong citation, or inc_omplete citation of the enabling provision of the law renders the application incompetent. This legal position was clearly expounded by the Court of Appeal in among other cases, that of Chama cha Waalimu Tanzania vs. AG Civil Application 152/2008 (Unreported), where the Court ..... at page 17, stated as follows; J('. '\, "I; •...... Non citation and or wrong citation of an enabling provl\rende\d' proceedings incompetent. Decision of this Court in which th~ciple of la~ been enunciated are now legendary ...." ,.,...~, . . ~ The issue of incomplete citation is also settled law. Am mber of binding decisions . '(~ on the issue, is the case of Project Manager .· "' af.i al Inc. Kigoma Vs. Vincent J. Ndugumbi Civil Appeal No. 22 of 2009 , .. urt of; peal t Tabora (Unreported). In that case, Rutakangwa J.A held that; ·. . ~ "-1" "....... it is now settled law t ., rong citation of the law, section, subsection and or paragraphs of the law~~ a , ,,of the law will not move the Court to do what is t1,.~ ~-,,.. ,.,,,.g; being asked to dQ~Jt~coordin~¥enders the application incompetent. ... " fir' \j). . . ~ ~~:Jr.~~~--"li;i~~:~. ...,J ~i·- The:~S:du.@f)~~~i:a§g~)t of the respondent's first objection was grounded on citation of ;~ . ~t . .~;~\:. .,~.,; inapp!icabl~ gf irt.elevant provisions. lv'ti. Kisye( faulted thE- aoolicant fo· citinr r,ul~. 56'-; :- ..\ ,:., ~~~~,tt .J of ths rul~~t-~~~ic'h, as he rightly submitted, is an inappiicable provision in applications for revision. The rule relates to application for extension of time. That issue was not directly responded to by Counsel for the applicant. In my considered opinion, the issue of citation of inapplicable provisions would be fatal, only in situations where there is failure to cite applicable provisions or where there is incomplete citation. But where all relevant provisions (3) have been cited properly, I believe citation· of inapplicable provisions can safely be ignored as harmless superfluity. Although my decision on· ground one is sufficient to dispose of this application, I find it useful to also discuss the respondent's 2nd ground of objection. Th es~~ntsu~mitted that the affidavit filed in . support of the application was de! .or re~~t, the deponent of the affidavit filed in support of the application introduced hi · ! as a Muslim in the affidavit, yet in the jurat of attestation, he is indicated to of affirming it. Mr. Rugaimukamu opposed the PO by u ·appearance of the word sworn instead of the word affirmed on th tation does not destroy the substance of the affidavit. soning o e proper; it represents the position in law and practice. I am buttres ~id decision by the position taken by the Court of ..,/ Appeal decision in Ash~i . · inal Appeal No. 74 of 2005, Tanga Registry (Unreported). At page 11 01;.,the ~ijttj_ ~, is' \,1~,Ji:~f;;.;a>M •~:••: -~tt ·;~'!· "Wft.J:'clf~ oFthe se'ttled opinion that the words "Sworn" and "Affirm" means that the ,. - .)ii: " ·-,J¾::~:;//P wifnes?,r:oe lGhristian or Muslim will testify, truthfully. in that situation using the wore' ··>¥.' ~; ',·,:·,:.:.. ,-.sworn insteac o~ affirm ln respect 01 Pw0 an0 Pwi;. w;no uncieriook to testify truthfuli)' '-:(. ,~~, occasiBn ,, no injustice to the said witness or to the appellant. The error, we hasten to hold is curable ........ It appears to us that swearing or affirming a witness is a mere a question of semantics at the end of the day the goal is to cause the witness to solemnly to tell the truth and truth only."(Emphasis mine) [4] Turning to the applicant's PO against the .respondent's pleadings: "Mr. Rugaimukamuns submitted that the respondent had not filed Counter affidavit (C/A) but a_ Notice of opposition instead. According to Counsel, the procedure used is contrary to Rule 24 (4) of the Rules which requires that a party intending to oppose an application must file a CIA Mr. Kisyeri's response to the PO was that; the Rule, provides for the room to choose either to use notice of opposition or CIA or both. 1 I!(: . -~ . ' My decision on that PO is this: My understandin · port of Rule 24(4) of the rules which provides among others that, "....... a noti ·oni~tounter affidavit or both shall.. .... is that, would be res ondents are at libert ch · e ·~le a Notice of o osition . a CIA or both. Consequently, I find tha(· _. ,;reA:~ ,,, . \~ ce to use Notice of opposition . instead of CIA was not illegal. · ,. _ '1J --~ ' . . . ~f> ~~-- ~ i To conclude, I uphold ttie."1~ound of the respondent's PO, but dismiss/reject the 2''; I dismiss the applic~~~~~)he proc.\dure used to oppose the application; and in the final r~_sult, I fin~Jh~~pl~tfon incompetbnt on ground of incomplete citation, and ~~-1~ )$ ! order it strucl('!:el1t''--f~"~ ·~11lic~nt is free to re-file the application I but subject to law on • • • ,.(.;-iW... ~"·%,. \~ ;aiz; llm1tat1on. .·/'· · "'~,,. ,.~.,. , .,.,;•.1- ., . J,.':if¾'.t.. ; ·~-~ '1;]- r:L: '.•.•I~·• - • '_: ,• , [SJ Date: 07/08/2014 Coram: Hon. R. M. Rweyemamu, J Applicant: For Applicant: Mr. Innocent Kisigiro Advocate Holding brief Mr......xuu,,,,111 Respondent: For Respondent: Mr. Chacha Kisyeri - Personal Repre · CC: Lwiza/Christopher Court: This case is scheduled for jud~ nt. ,~ Judgment delivered this esence of parties indicated above. '\, Right of Appeal E~~in ...,..l-:;. ., ~:;~., '~ . M. Rweye 'JUDGE 07/08/2014 [6]