salma mohamed others vs fidda hussein co ltd 2018 tzhcld 31 6 april 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 61 OF 2017 SALMA MOHAMED & 12 OTHERS............................APPLICANTS VERSUS FIDDA HUSSEIN AND COMPANY LIMITED................RESPONDENT RULING Date o f Last Order: 12/03/2018 Date o f Ruling: 06/04/2018 L.L.Mashaka, J This is a ruling in respect of the preliminary objection filed by the respondent Fida Hussein and Company Limited that the application for extension of time filed by the applicants is defective on the points of law that:- " i, That the applicants' application for extension o f time is fatally defective for failure to disclose Applicants' names. 2. That the application for extension o f time is bad and unmantainable in law for lack o f leave for representative suit 3. That the applicants' application is defective for non-citation o f the mandatory provision o f the law. 4. That the verification clause in the affidavit is fatally defective for lack o f disclosing o f information." The hearing of the preliminary objection was by way of written submission and parties correctly filed the same. I highly appreciate the timely filing of submissions by both parties. On the first point of preliminary objection, Learned Counsel for the respondent argued that since the applicants are numerous persons having the same cause of action, the names ought to be disclosed in the application so as to ascertain who have interests to pursue the claims among others. That the application reads Salma Mohamed and 12 others and it is only Salma Mohamed who is known in the application and the rest 12 others are difficult to identify. That this anomaly renders the application incompetent. Learned Counsel referred this Court to the case of Coca Cola Kwanza Vs. Charles Mpunga and 103 Others, Civil Application No 107 of 2015, CAT at Dar Es Salaam (unreported) where Her Lordship Kimaro, JA (as she then was) held at page 2 of the ruling that; " The Court has repeatedly held that the names o f the parties be it an application or an appeal or revision must be disclosed. Since in his application the names o f the rest o f the respondents have not been disclosed, the omission renders the application incompetent We hereby strike it o u t" Also the case of Juma Marumbo and 42 Others Vs. Regional Commissioner, Dar Es Salaam Region and 2 Others, Civil Application No. 242 of 2016, His Lordship Mwarija, JA at page 6 quoting the case of Bernard Masanga Merchant K. Ikungura and Others Vs. National Agricultural and Food Corporation and 2 Others, Civil Application No. 177 of 2006 (unreported) where the Court held that; ” As it is, no information was forthcoming to show who those are, and whether there was leave granted to Ikunguru to represent them. In the light o f the failure to disclose who those others are, it will be fair to say that; strictly speaking there is no proper application before the Court.... " On the second point of preliminary objection is to the effect that this application is bad and unmaintainable in law for lack of leave for representative suit. He argued that under Rule 44(2) of the Labour Court Rules, GN No. 107 of 2007 provides that leave must be sought and be granted by the Court for one or more to represent others where they have common interest in the matter. That the application is incompetent for contravening the mandatory requirements of the law as there is no proof that the 12 others have consented and/or appointed Salma Mohamed to represent them, there is no scintilla proof that the leave was obtained and granted by the Court. He referred this Court to the case of Noel Malifedha & 2 Others Vs. National Insurance Corporation and Another, Revision No. 134 of 2015 at page 4, where the Court had this to say, " As rightly submitted by Mr. Kataregga that the applicants have not chosen any one amongst them to represent the other, then no need for leave, but the need for leave to file representative suit as per law requirement was mandatory........7/ The third point of the preliminary objection is centred on proper citation of the mandatory provisions of the law that the applicants have failed to cite proper provisions of the law in the application and the application cannot stand and move the Court. That they only cited Rule 24(11) of the Labour Court Rules without specifying sub rules to wit (a)or (b) or (c) which ought to have been properly specified by the applicants on which legal issues would move the Court to determine and grant prayers sought rather than leave the Court to go on a fishing expedition to select the applicable sub rules, a task which is not the duty of the Court. He referred this Court to the case of Bahadir Sharif & 2 Others Vs. Mansoor, Civil Application No. 127 of 2006, CAT at Dar Es Salaam [unreported] on the need to be very specific on the provisions of the law which can move the Court. In the case of Ramadhan Lugusha Vs. TICTS, Revision No. 212 of 2015, High Court Labour Division at Dar es Salaam [unreported] at page 2 where the Court held that; " ...... there is non-citation o f the enabling provisions o f the law to wit the sub paragraphs to the cited Rule. The practice o f the Court as well as the law itself has been non-citation o f the enabling provision makes the application incompetent before the Court." The respondent further submitted that going through the chamber summons it shows that the application would be supported by an affidavit of one Gaudin Rwekaza Mrugaruga but the same has been sworn in by one Salma Mohamed one of the applicants as the deponent. Hence the chamber summons is fatally defective for containing misleading information. On the fourth point of preliminary objection, it was argued that the verification clause in the affidavit is fatally defective for lack of disclosing of information. That the affidavit being a written document as defined in the case of DB Shapriya & Co Ltd Vs. Bish International, Civil Application No 53 of 2002, Court of Appeal of Tanzania that it contains material and relevant facts or statement relating to the "matters in question or issue sworn or affirm and signed by the deponent before a person or a person or Officer duly authorized to administer any Oath or Affirmation or take any a f f id a v it That the supporting affidavit was defective as the deponent in the introduction part of the affidavit showed to be a Muslim has proceeded to take oath and affirm instead of affirming thereto. Learned Counsel referred Section 4 of the Oaths (Judicial Proceedings) and Statutory Declarations Act, 1996, which requires a person other than a Christian to make an affirmation instead of making an oath and that affirmation to be of the same effect as he had made an oath. That the 1st applicant being Muslim by faith was supposed to affirm instead of sworn, hence the omission makes the affidavit defective. The respondent further submitted that some of the paragraphs in the supporting affidavit of the application contains untruth and lies. That at paragraphs 1 and 2 of affidavit Salma Mohamed claims to be the personal representative of the other applicants since 2011 but there was no proof that leave was granted by this Court. That the said paragraphs which are not correct be expunged from the affidavit and if so done then the whole of the application will fail. That the paragraphs in the affidavit from paragraph 1 to 33 are information from the best of her knowledge while the contents of 4,5,6,7,8,9,10,11 and 15 are information from other applicants who are not known. That there have been several applications by the applicants which were being struck out on various reasons. The respondent further submitted on the merit of the application that applicants were negligent in pursuing this application. This Court will not go further into that as the issue at hand is on preliminary obligation. In response greatly noted by this Court, the applicants with a two pages written submission drawn on gratis by Ms. Glory Sandewa from Tanzania Women Lawyers Association[TAWLA] at the outset have concede to the procedural irregularity on the part of the applicants and pray for leave to file proper documents before the Court. That they have noted that the application was incorrect and the remedy is to strike it out and applicants be given leave to file the same. Secondly, the applicants have resorted to plead Article 107A (2) of the Constitution of the United Republic of Tanzania, Cap 2 R.E 2002 that in the dispensation of justice, Courts should not be tied up with technicalities in provisions of the law, as this may obstruct dispensation of justice. The respondents brutally filed their rejoinder thereto among other issues referred this Court to the persuasive case of M/S Express Design Ltd Vs. National Social Security Fund, Civil Case No. 46 of 2008, High Court [unreported]. This case was not attached to their rejoinder though Learned Counsel for the respondent claims to have attached the same that mistake of the advocate cannot be brushed aside for being a bona fide one as being learned in law. That even the written submission for the applicants was not endorsed contrary to Section 44(1) and (2) of the Advocates Act. They therefore prayed for the application to be dismissed rather than being struck. I have gone through the written submissions by both parties and Court records; it is worthy to note at the outset that the applicants have concede to the defects raised in the preliminary objection by the respondent and have not explained in any further manner to what extent their application was defective. The Court finds this application for extension of time is incompetent to move the Court and it ought to be struck out of the Court register. I accordingly struck out. It is worthwhile to note that this application for extension of time by the applicants did not fit the requirements of Rule 44(1) of the Labour Court Rules, GN No. 106 of 2007 on representative suit before the Labour Court, unquestionable legal principle on representative suit is expounded by the Court of Appeal of Tanzania on the relevancy of leave in such applications having more than one person, in the case of K J Motors & 3 Others Ltd Vs Richard Kishimba & Others, Civil Appeal No. 74 of 1999, CAT at Dar es Salaam, at page 4 His Lordship Kisanga JA (as he then was) held that:- "the rationale for this view is fairly apparent Where, for instance, a person comes forward and seeks to sue on behalf o f other persons, those other persons might be dead, non - existent or either fictitious. Else he might purport to sue on behalf o f persons who have not, in fact, authorised him to do so. I f this is not checked it can lead to undesirable consequences. The Court can exclude such possibilities only by granting leave to the representative to sue on behalf o f persons whom he must satisfy the Court they do exist and that they have duly mandate him to sue on their behalf." > That decision of the CAT is binding upon this Court. The applicants ought to file for a representative suit for leave of the Court, that one of them or more is or are authorised to represent the 12 others. The preliminary objection raised by the respondent is with merit and sustained. This application for extension of time is struck out of the Court register. Under powers vested to the Court under Rule 55(1) of the Labour Court Rules, GN No. 106 of 2007 and for the good ends of justice, I grant the applicants leave to file a proper application for representative suit within 14 days from today. It is so ordered. JUDGE 06/04/2018