REV NO 6052 OF 2024 SALIM SALEHE AL KITHIRI VRS JUMANNE SAID KHALFAN

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 6052 OF 2024 CASE REFERENCE NO. 202403211000006052 BETWEEN SALIM SALEHE AL KITHIRI T/A TOPAZ MOTORS....................APPLICANT VERSUS JUMANNE SAID KHALFAN............................................. RESPONDENT RULING Date of last Order: 16/ 05/2024 Date of Ruling: 29/ 05/2024 MLYAMBINA, 3. The Applicant filed the present application urging this Court to revise and set aside the ruling and an order issued on 8th day of March 2024 by Hon. Mwakisopile, I. E. Arbitrator before the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/DSM/MISC/6/2023. In response to the application, the Respondent raised a preliminary objection. Though the Respondent did not follow the required procedure in raising his objection, it is my view that, the Applicant had a chance to reply to the same through rejoinder. As such, the objection shall be considered by the Court as it touches the jurisdiction of the Court. In the conduct of this application the Applicant was represented by learned Counsel Mr. Davis F. Rwegasira and Mr. Mukhtary Hassan, learned Counsel appeared for the Respondent. Mr. Hassan raised the objection that; the application is prematurely to be determined by this Court. He stated that the Applicant had never filed the notice of intention to seek for revision of Award as the law requires under Regulation 34(1) o f The Employment and Labour Relation (General) Regulation GN. No. 47 o f 2017. He added that; the Application for revision of setting aside Award of CMA has already been overtaken by events since the Respondent had filed Execution No. 243 o f 2023 before the High Court and the Court Broker had been appointed to execute the orders. Though the Applicant had a chance to reply to the objection in question through rejoinder, he did not do so. As righty submitted by Mr. Hassan, the requirement to file CMA F10 is provided under Regulation 34 (supra). The provision provides as follows: The forms set out in the Third Schedule to these regulations shall be used in all matters to which they refer. The word 'shall' used in the above quoted provision justifies that the requirement of filing notice of intention to file revision CMA Form No. 10 is mandatory. Thus, filing of notice is the law requirement and not an option for some one to have a room of filing it or not. This is the Court's position in the case of Amina Sangali & 200 Others v. St. John's University of Tanzania, Revision Application No. 100 of 2023, High Court Labour Division at Dar es Salaam. The relevance of the notice has been highlighted in numerous Court decisions including the case of Access Bank Tanzania Limited (supra). Again, the relevance of CMA F10 was at length discussed in the case of Amina Sangali & 200 Others (supra) where the Court held that: Likewise in this matter, the procedures are well stated by the law. Therefore, skipping such procedure without justifiable reason, will open a pandora box for others to violate laws by using a shield of overriding The Court further held that: I equally do agree with Counsel Mayenga that the object of labour law is to overspeed the economic development of the nation. As such, any procedure that humpers such goal has to be ripped away. However, the very purpose of filing notice of intention to file revision is aimed at speeding the proceedings of labour matters in order to achieve economic growth of the parties and of the nation. Two more points should not go unattended. Counsel Mayenga has submitted that CMA Form No. 1 was intended for CMA alone to forward the CMA record to this Court and not for the Respondent and that the Notice is of administrative in nature and not judicial requirement. I must observe that there is no hard and fast rule of separating administrative and judicial functions in Court especially on matters which are governed by Statutes or Regulations. Such matters aim at enhancing justice. Indeed, whatever is provided under the Regulations whether done by the CMA or the Court are for the benefits of the parties. In this case, I also maintain the above position that filing of CMA F10 is mandatory and violation of it makes the application incompetent. In the application at hand, there is no proof that CMA F10 was filed. I therefore sustain the preliminary objection raised and hold that the application is incompetent. As much as I sympathize with the parties for the resources spent in prosecuting this application up to this stage, my hands are tied up. In the circumstances of this nature, it is my view that the Court should not be moved by sympathy to condone violation of mandatory procedure, which if adhered, have animpact of facilitating administration of justice timely. As pointed herein above, the notice in question notifies or alerts the CMA to prepare the case file for it to be forwarded to this Court for revision. Thus, makes the notice in question mandatory for easy administration of justice. In the premise, the preliminary objection is sustained. Consequently, the application is hereby striked out for being incompetent. It is so ordered. JUDGE 29/05/2024 Ruling delivered and dated 29th May, 2024 in the presence of Counsel Levis Christopher Munisi holding brief of David Farid Rwegasira and the Respondent in person. JUDGE 29/05/2024