nehemia chami vs minister for labour employment youth development others 2018 tzhcld 9 19 march 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT TABORA MISCELLANEOUS APPLICATION NO. 06 OF 2016 NEHEMIA CHAMI.................................................. APPLICANT VERSUS 1. MINISTER FOR LABOUR EMPLOYMENT^ AND YOUTH DEVELOPMENT 2. ATTORNEY GENERAL V .. RESPONDENTS 3. DIRECTOR GENERAL RE LI ASSETS HOLDING COMPANY (RAHCO) RULING Date of Last Order: 08/03/2018 Date of Ruling: 19/03/2018 L.L.Mashaka, J. This is a ruling in respect of the preliminary objection raised by Learned Counsel Theresia Fabian for the third respondent Director General Reli Assets Holding Company Ltd that:- "777/5 Honourable Court has no Jurisdiction to entertain this matter." The preliminary objection was heard orally. During hearing of preliminary objection, Ms Theresia Fabian, Advocate represented the third respondent, Mr. Tito Mwakalinga, State Attorney represented the first and second respondents and Mr. Lucas Ndanga, Advocate appeared for the applicant. Learned Counsel for the third respondent explained that their preliminary objection concerns the jurisdiction of this Hon. Court on the fact that the application for extension by the applicant originated from Miscellaneous Civil No. 28 of 2011 whose ruling was delivered on the 13th December 2013 before Hon. Mruma, J, at the High Court of Tabora from application filed by the applicant in the said Registry. However, Learned Counsel admitted to have no case law which sets a precedent on filing such an application. Learned Counsel explained that for the nature of the present case, the law applicable is the Employment and Labour Relations Act No. 6 of 2004, which governs relationship between employer and employee, together with its regulations. Learned Counsel failed to cite the specific regulations of the Employment and Labour Relations Act, hence on much inquiry by the Court prayed to abandon the regulations. She further submitted that since the applicant filed his first application Misc. Appl. No. 28 of 2011 in the Civil Registry, he ought to have filed this application in the said registry. That before this Court the application was wrongly filed. Therefore prayed the application to be struck out so that the applicant if wishes can file to the proper registry. State Attorney for the 1st and 2nd respondents agreed that they did not have any specific law or provision regarding the preliminary objection raised by the 3rd respondent. In that regard he found it proper to seek directions of the Hon. Court as whether it was proper for the applicant to file this application before this Court on a matter originating from a normal civil application filed in the High Court. In response Learned Counsel for the applicant submitted that the preliminary objection raised by the 3rd respondent has not shown any law which has been offended by the application filed by the applicant and prayed to the Hon. Court to strike out so that natural justice could prevail. It was also their contention that raising preliminary objection which do not have legs to stand before the Court was an abuse to the Constitution of the Country (1977) in the administer of justice as stipulated under Article 107A(2)(e) of the Constitution (1977) which discourages legal technicalities towards the provision of justice. Having so submitted, Learned Counsel prayed that the preliminary objection be dismissed with costs. In rejoinder Learned Counsel for the third respondent argued that the issue of jurisdiction does not fall under a technicality under Article 107 A(2)(e) of the United Republic of Tanzania Constitution, thus if the applicant wrongly filed the application under the wrong registry, the remedy is to strike out and his application to be filed in proper registry. She lastly prayed to reiterate their submission in chief and the application be struck out. Having heard submissions by both parties on the raised preliminary objection, the key issue for determination is whether or not the raised preliminary objection on point of law by Learned Counsel for the 3rd respondent qualifies to be a "preliminary objection" and thereof be determined by this Court. The issue can be tackled by referring the binding legal precedent from the famous case of Mukisa Biscuits Manufacturing Co. Ltd Vs. West End Distribution Ltd [1969]1 EA 696 at p.701 where Law, JA held that:- "A preliminary objection is in the nature o f what used to be a demurrer. It raises a pure point o f law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise o f judicial discretion......" In the case of Selcom Gaming Limited Vs. Gaming Management (T) Limited & Anor, Civil Application No. 175 of 2005, Court of Appeal of Tanzania at Dar es Salaam (unreported) Nsekela, JA held that a preliminary objection must first raise a point of law based on ascertained facts and not on evidence. Secondly if the objection is sustained, that should dispose of the matter. The respondent's purported preliminary objection falls short of the criterion set therein above despite the fact that a plea of jurisdiction can qualify to be a point of law, but Learned Counsel have failed to clearly stipulate what provision of the law has been violated by the applicant filing his application before this Court. Learned Counsel has failed to articulate the preliminary objection, whether it is based on a provision of law which has been violated or precedent set by the Court of Appeal of Tanzania which is binding upon lower Courts in our country. The preliminary objection fails in its entirety. In the circumstance, as held in the case of Selcom Gaming Limited (supra), I would like to associate myself with the remarks made by Hon. Nsekela, JA quoting Lord Templeman in Ashmore Vs. Corp of L'oyds (1992) All. ER 486 (HL) at page 493 that "it is the duty o f counsel to assist the judge by simplification and concentration and not to advance a multitude o f ingenious arguments in the hope that out o f the bad points the judge will be capable o f fashioning a winner." The preliminary objection is overruled. Hearing of the application to proceed on merit. No orders as to costs. So ordered. L.L.Mashaka ‘ { JUDGE 19/03/2018