nyachia r warucha vs the new forest companytltd 2020 tzhc 3560 12 november 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT IRINGA REVISION NO. 08 OF 2019 BETWEEN f ‘A , % NYACHIA R. WARUCHA .............. M \ [CAN: VERSUS \ THE NEW FOREST COMPANY (T) LTD ............................... . s ... __ PONDENT Date of Last Order: 22/10/2020 'V '* Date of Ruling: 12/11/202/J,, 1,1 "M l MATOGOLO. 3. % \ .V*[a k . Warucha has filed this application for The applicant ond||JJyafefc|j. li revision. i im%, \nv [^peeking for an order of this court to revise the ommission for Mediation and Arbitration of Iringa in CMA/IR/66/2019, quash and set aside the ruling 4-U Ilk ^ thereof^. (,|, The application was brought by both the Notice of Application and chamber summons. The same is supported by an affidavit taken by the applicant himself. Page | 1 After being served, the respondent filed counter affidavit taken by Moses Ambindwile and also raised preliminary objection on point of law as follows:- 1) That, the application is time barred. 2) That, the Applicant's application is defective jjgr np|compliance of Rule 24(3)(a)(b)(c) and (d), of the La| No. 106 of 2007. X """ Basing on the notice of preliminary objection raised, this court invited the parties to argue on the same before ^ jin ^ to the merits of the application. ,i|li<iii!V V * I V At the hearing the applicant was r^rppnted by Mr. George Mhanga learned advocate and the respo^(Jen|j|>was represented by Mr. Moses Ambindwile learned advo<^a£l||It is the contention of Mr. Moses Ambindwile learned counsel that tHte av^rd\y the CMA was delivered on 21/03/2020. .iltUlIu Hli P 1 But the applicant f^a ^ Application for revision on 02/04/2020. He sai<ilj|ecfetrflr9^fl) (a) of the Empoyment and Labour Relations Actj No. 366 R. E. 2019), provides time limitation for a perib^ who*l||J^grieved with an award by the CMA is six weeks from the date w^fefn^ft’e award was made to the date the application is filed before the court. He said the applicant delayed to file his application because he was supplied with the copy of an award the same day it was delivered. He said the application was lodged after the expiry of six weeks. Page | 2 The applicant endorsed on the CMA award acknowledging receipt of the said award. Mr. Moses Ambindwile submitted further that he is aware that the applicant previously has attempted to file similar application within time, Labour Revision No. 3 of 2020 on 22/06/2020 but the same was struck out by this court (Hon. Kente, Judge) because of incompetence of descripB||jj||jffhd address of the parties although the same is not fatal as in the last part the same are contained. However he said the requirements under paragraphs (b) (c) and (d) are paramount but the applicant's affidavit has no such ingredients. He therefore argued that absence of those ingredients renders the whole affidavit not to exist. And that an application without an affidavit supporting the same lacks legs to stand on. He cited the case of James Daniel vs. Cats Net Limited, Revision No. 258 of 2017 High Court Labour Division Dar Es Salaam (unreported) at page 14 the court found that the application was incurably defective. He therj|8re <fir^ed |g this court to dismiss the application. On his part Mr. George Mhanga learned a^ te submitted that he is aware of the requirement for time limitatiq^i fili% iln application for revision of the award by the CMA. But thijr fih i application was filed on .dilllllK \ bJ * 02/04/2020. After being struck quMhef prateOTfr leave to refile the same for that case they are not time qerred plttypDer of this court (Hon. Kente, Judge) of 02/06/2020 whicj grit^ ^ jliie applicant leave to refile the application although he jecify the time limit. He argued that they would have been out MtirfffeuKihey would have been given time frame \i 1 without filing the g|plic||ioffrHe said where the order of the court did not specify t i t h e application the law requires that the same should b|jff^jj| sixty days as it was held in the case of Mount Meru Holtovs. Michael Luhamwa Revision Application No. 57 of 2019. Mr. Mhi||jpffergued that when Hon. Kente, Judge, ordered the applicant to refile his application he was aware of that and the intention was to avoid multiplications. He also referred the case of Hamis K. Mtanziha and 17 Others vs. Oxfarm and Sa/u Security Services Ltd, Revision Application No. 7 of 2020 in which Mgeta, Judge accepted the prayer to Page | 4 refile the application to avoid the possibility of the applicant being forced to apply for extension of time. He therefore submitted that since they filed first application in time it is that is why the court did not hesitate to grant them leave to refile the application without further applying for extension of time. He therefore prayed for the first point of objection not to be considered. As to the second point of objection Mr. Mlyqa'fui|jnittQg that it is the current law of the land that courts are to up^ d th^feed to dispense justice rather than being tied up technicalities in the administration of justice. For their application hwing fiotishown statement l|| «||| of legal issues and reliefs sought is not^fafl^al||gll. It is just a mere procedural technicality which does no J lfe the jurisdiction of the court since the affidavit has shjfwn w m th!| applicant is praying for and \ “ Mu# the court, has the jurisdiction towitertifn the matter, that is to quash a little award by the CMA. TRil rest are mere technicalities which the court Hhw *l||, can disregard by applying rrte pfi|dple of overriding objective. irtWHlu \ b He said the iflse IftecTOy Mr. Moses Ambindwile was decided before the Written^pi^jifewfflaneous Amendments) Act No. 2 of 2018 which requires ^||ptide cases justly and regard to substantial justice. He ther^jf pra$|dj|&r the raised preliminary objection to be dismissed and the court prbcedfel with hearing of the main application. In rejoinder Mr. Ambindwile did not agree that this court granted the applicant leave to refile the application. There is no such order by Honourable Kente, Judge indicating the extent of leave raised by the applicant. That, there cannot be a leave without specifying time. He said Page | 5 even the case of Mount Meru Hotel is irrelevant as in this case the court granted leave to refile though did not indicate for the period to refile. Regarding the case of Hamis Mtanzika leave to refile was granted and time limit was given for the duration of such leave. With regard to the second point Mr. Ambindwile said the counsel is not cjj»ntep(rig what he has submitted on the lacking ingredients. And he pray^Si^r the^rirjcfyle of overriding objective not to be considered as the sameN^nnWf violate procedural law. The said amendment did not aij J ^ ru*e 24(?3)(b) (c)and (d). The provision forming basis of this objectfolk hacNwtt been amended % which is to be complied with. \ Having read the submis|foris Sk th% respective counsel for the parties, I will start with the firsl||oint cp UDjection that the application is time barred. It is a commc^grounSN^t Section 91(l)(a) and (b) of the Employment and Labour Act requires an application to this court against the award ,ppi||^%^y>to be filed within six weeks from the date the said arardUg, JkveJlkipon the applicant. The CMA award in respect of this applicatioN||jA/a^feerved upon the applicant on 31/03/2020. The present apft on 02/06/2020. By simple mathematics it was lodged t Tf beyon^the %iPweeks provided under the law. That too is not in dispute. But the IlSlilicant's argument is that their first application, Revision No. 03 of 2020 was filed on time, that is on 02/04/2020. But the same was struck out on 02/06/2020 with leave to refile but there is no specific period was given for them to refile. For that case the applicant was supposed to refile the application within sixty days. Page | 6 The applicant's counsel has alleged that this court, honourable Kente, Judge granted them leave to refile the application. In my perusal to the court record I was unable to see that ruling of this court striking out the application and granting leave to the applicant to refile the same. The learned counsel for the applicant did not supply a copy for this court to go through and ascertain what has been put up by the le^ ecroLnseyn his * submission. If so it is not the duty of this court to search T^thelprcl ruling in support of a party's case. Contrary to w hat^ p George^Nhanga has submitted, Mr. Ambindwile argued that this coudfn Revision No. 3 of 2020 {|l 'III ***** did not grant leave to the applicant to r^jlle N^e implication as even the said ruling was not annexed to the app||ia^l^|f||flvit. Ordinarily where a court j|ant lelli% jl refile a matter must specify time frame within which thyppltefrflftfllis to be refile. The court cannot leave open to the applia^nl^o refile the application at the time as he wishes. The contention'W a^Mic^tit's counsel is not supported by the court .irtWIIjjl *||j J| record. After his ipphlmtiolrwas struck out for being incompetent the applicant w l^ o^ cNiaiJl'ove that the present application was filed within the peric^l^piJ^IjJI in the ruling by this court if it was so prescribed. Otfife^ise ejjjglj^nt was required to apply for extension of time before he has refif^jjjjfffhis application. But there is no evidence by the applicant to prove that. Under such circumstances, and as there is time limit for filing applications to this court from the award by the CMA which is five weeks, by filing the same beyond such period it is obvious that, the applicant is Page | 7 time barred under Section 91(l)(a) of the Employment and Labour Relations Act. Point No. 1 of objection is sustained. Regarding the second point of objection that the application is incurably defective for non compliance to Rule 24(3)(a)(b)(c) and (d) of the Labour Court Rules, this appears not to have been^cort o ted by the applicant's counsel. But he only relied on the Ri^iple or|| ovefhdlng objective. Rule 24(3) of the Rules provides:- %# A "The application shall be supportec^ affidavit which shall clearly and consciously set out \ ’V \ (a) The names descnpticf^BJMJMdmsses o f the parties. (b) A statement d^the mMqricj^facts in a chronological order on which th§ apfegti< ^Ibase. o f legal issues that arise from the material vght' jgh the affidavit supporting the applicant's applicati(ff’,’l||| does not set out the requirements listed in the rule aboW eprc|jJk The rule is couched in mandatory form due to the word "shall" used which according to Section 53(2) of the Interpretation of the laws of Act Cap.l R. E. 2019, which provides:- Page | 8 "53(2) where in a written iaw the word "shall" is used in conferring a function such word shall be interpreted to mean that the function so conferred must be performed" See also the case of Mwita Sigore @ Qgora vs. ^eo^ fic. Criminal Appeal No. 54 of 2008 CAT (unreported). 1|| ^ The learned counsel for the applicant has in| i|ed this <!^yrt to invoke the principle of overriding objective so that |lfearll|Confine itself to the ,llk % substantive justice. \ % This principle is not new \ V appears to have been brought by the Written Laws (iJscellan^uslAmendments) (No. 3) Act of mm 2018. The elements of o verrp in g ^ je^ e principle has been there even before the enactment of|hd||^w that brought it. Take for example Article 13(6)(a) and Article ld||\ (^fe%Df the Constitution. But also see the case of Ramadhan 'Af/S Haute and Company, Advocates (1996)J s court (Mkwawa, Judge) has this to say:- I |l|| V a case w^ere a layman, unaware o f the \ process o f the machinery o fjustice tries to get Hh. iJh relief before the courts, procedural should not be used to defeat justice and the irregularities in an affidavit are curable in term o f Section 95 o f the Civil Procedure Code". Page | 9 The Court of Appeal of Tanzania has emphasized on that principle in the case Yacobo Magoiga Gichere vs. Peninah Yusuph Civil Appeal No. 55 of 2017 CAT at Mwanza. But the same court in the case of Mondorosi Village Council and 2 Others vs. Tanzania Breweries Limited and 4 Others, Civil Appeal No. 66 of 2017 CAT at Arusha followed its previous decision in Njake Enterprise^ inifteti vs^piue Rock Limited and Another, Civil Appeal No. 69 of 2^|g cle|n(f* stated that the principle of overriding objective cannot bt|||feed agairra mandatory procedural law. tf' \y , \. \ A party therefore cannot seek reftffle % crte principle while he violated mandatory procedural Jaw. Tlie p lM p fe of overriding objective Ilf ^ti Jfi was not intended for such circ||jnstance^i|iPt it is applicable to befitting cases. I also find merit in this»poinl!^j^pfection. In the event and^ball^ o^the reasons given above I am constrained to agree with Mr. y^s^l^nJ|fawile learned advocate that the application is time ba«ed Jiyt mso nfed in law for violation of the mandatory required S J t S S J provided un<M^rulm24(3) (a)(b)(c) and (d) of the Labour Court Rules, 1 reby struck out. ordered. Page | 10 DATED at IRINGA this 12th day of November, 2020. *7 / <5 (i > ^A i y '.I I!rr:;I \' Date: 12/ 11/2020 Coram: Hon. F. N. Matogolo - Judg^ ^ Applicant: Absent Respondent: Absent C/C: Grace Mr. Suleiman Kaaanda^Aqyocate: My Lord I am ref^gser^jng^he applicant. But I am also holding brief for Mr. Moses Ami Iffwocate for the Respondent. The matter is for \ .fi'iii ruling we ans|jfa( ;ive it if is ready. That is all. COffljjT: RlltaflWelivered. OLO JUDGE 12/ 11/2020 Page | 11