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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO LABOUR REVISION NO 7 OF 2023 (Arising from Labour Dispute No CMA/MOR/77 & 80 of 2022) BETWEEN MOROGORO INTERNATIONAL SCHOOL & BOARD OF GOVERNORS OF MOROGORO INTERNATIONAL SCHOOL APPLICANTS VERSUS MICHELLE MASSEY AND JOHN ANDREW MASSEY RESPONDENTS RULING MRUMA J. This is a ruling on preliminary objection raised by the counsel Respondent to the effect that:- 1. The application is incompetent for failure to file a mandatory notice of intention to seek revision contrary to Regulation 34 (1) of the Employment and Labour Relations (General) Regulations GN No 47 of 2017 2. That the application contravenes Reguiation 24 (2) of the Labour Court Ruies No 106 of 2007 for being signed by the representative and not a party to the matter; 3. That the appiication contravenes Reguiation 35 of the Advocates (Professionai Conduct and Etiquette) GN No 188 of 2018 by inciuding an advocate who has interest in the matter. At the hearing of these preiiminary objections which were done by way of written submissions, counsei for the Respondent dropped preiiminary point number one and proceeded to argue number two and three. I have carefuiiy read the points raised and argued by the iearned counsel and the authorities cited and particuiariy the famous case of Mukisa Biscuits Manufacturing Company Ltd Versus West Ends Distributors Company Ltd [1969] EA 696. Apparentiy looking at the submissions of the Appiicant, the iearned counsei concedes that both points argued by the counsei for the Respondent but he is contending that because they do not constitute pure point of iaw, they cannot be determined as such. In my view, the case of Mukisa Biscuits is being misinterpreted. As per Sir Charies Newboid to constitute a preiiminary point of objection, the point raised must constitute a pure point of iaw which If argued on the assumption that ali the facts pieaded by the other side are correct it can completely dispose of the matter. On his part Law J. A. who sat in the same panel with Sir Charles Newboid stated that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary objection may dispose of the suit. The learned judge went further and gave examples of objection based on the lack of jurisdiction and time limitation. The question we have to ask ourselves is then: ''what is a pure point ofiaw?^\\e learned Judges in Mukisa Biscuits case (supra) did not define what they meant by pure point of law but reading their conclusion on what constitute preliminary objection one can gather that a pure point of law may be: i. A point which is argued on assumption that ali facts pieaded by other party are correct(As per Sir Charles Newboid) and; ii. A point which has been pleaded or which arises by dear implication out of the pleadings and which if argued may dispose of the matter (As per Law J.A.). In the present case it has been pieaded that advocate for the Applicants signed the Application the act which contravenes Regulation 24(2)of the Labour Rules GN No 106 of 2007 and in admitting the contravention Mr Marwa Masanda advocate who was initially representing the Applicants recused himself from representing them. The Applicant does not dispute those facts. His argument is that the alleged facts need to be ascertained by calling evidence. In my view what the judges in Mukisa Biscuits's case [supra], had in mind is that where it is clear that the point raised may dispose of the matter by mere looking at the pleadings, that point constitute a preliminary objection and may be raised as such. The main purpose for disposing of the case through preliminary objection is to reduce the cost and spare precious time of the court. Instead of calling for evidence that an advocate for the Applicant signed the application contrary to the rules or regulations, court will simply look at the application and/or pleadings and if it sees that the objection raised is true; then it will proceed and dispose of the matter without much ado. But if it finds that the points raised are mere facts which have to be proved by calling evidence and therefore not capable of disposing of the matter at that stage, then it will proceed to receive evidence and determines the merits of the case. Preliminary objections (in French: 'exceptions preiiminaires') are the second incidental proceedings envisaged under Rule 2of Order VIII of the Civil Procedure Code [Cap 33 R.E. 2019] which provides that:- ''The defendant must raise by his pleadings aii matters which show the suit not maintainable or that the transaction is either void or voidable in point ofiaw and aii such grounds ofdefence as, ifnotraised wouid iikeiy to take the opposite party bysurprise or wouid raise issues offact not arising out ofthe piaint as for instance, fraud, limitation, release, payment, performance or facts showing iiiegaiity'' The object of a preliminary objection is to avoid not merely a decision on, but even any discussion of the merits'of the subject matter of the suit. Objections possess a 'preliminary'character in so far as the court is required to rule on them before the debate on the merits begins. Preliminary objection is therefore an objection which if upheld renders further proceedings before the court impossible or unnecessary. Rule 24 (2) of the Labour Court Rules GN No 106 of 2007, the rules provides that:- "The Notice ofApplication shaii substantially comply with Form No 4in the Schedule to these ruies, signed by the party bringing the application and died and shaii contain the following information....... In Miscellaneous Application No 60 of 2018 between Simon John Versus BRAC(T) Finance Ltd, this court(Aboud J), put into scrutiny the provisions of Ruie 2(2) of the Labour Court Ruies which defines who is a party to the proceedings and Section 56 of the Labour Institution Act No 7 of 2007 which prescribes persons who can represent a party in proceedings and came to a hoiding that a representative of a party is not a party therefore cannot sign pieadings on behaif of a part. That position was echoed by Mongeia J, in Labour Revision No 18 of 2019 where it was heid that a representative remains to be a representative and cannot perform the duties mandatorily charged to a party bringing an appiication to the court under the iaw. The court went on to hoid that in no reason can an advocate wili assume the right and responsibiiities of a party in court proceedings. It was further the court's hoiding that in most of iabour proceedings, parties are either empioyer or empioyee and this is considered in wider perspective that not oniy representative of those empioyers and empioyees wili be entitled to sign the proceedings including notice of application but also they will be bound by the final court decision and have t execute the orders thereto if are regarded to as parties to the proceedings as defined under Ruie 2(2) of the Labour Court Ruies. Thus when they want to authorize 6 any person to assume the parties' position they have to follow the laid down legal procedures. In the instant application there is no dispute that advocate Marwa Masanda who introduced himself as an advocate and/or representative of the Applicant signed the application as an advocate. I take note that advocate Marwa Masanda recused himself from conducting this matter for the Applicant, but as correctly observed by the counsel for the Respondent his recusal and appointment of another advocate is tantamount to jump out of the ship while aboard. He had already signed the pleadings which are now defective and make the entire application incompetent. Consequently I sustain preliminary objection No 2 and see no reason to delve into preliminary objection No 3.1 order that Labour Revision No 7 of 2023 be and is hereby strike out with no orders as to costs. C:> -7. A. MR MA ■2^ Uj X U > JUDGE 26. 9. 2024.