selemani athman salehe and 7 others vs joinven investment t limited and another 2021 tzhcld 70 16 april 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 813 OF 2019 BETWEEN SELEMANIATHMAN SALEHE & 7 OTHERS.......................APPLICANTS VERSUS JOINVEN INVESTMENT (T) LIMITED....................... 1st RESPONDENT AL-HATIMY DEVELOPERS............................................ 2nd RESPONDENT RULING Date of Last Order: 17/03/2021 Date of Ruling: 16/04/2021 Aboud, J, In this application the applicants filed an application for revision against the ruling of the Deputy Registrar, Hon. S.H. Simfukwe in Execution NO: 436 of 2017 and in miscellaneous application No. 636 of 2018. The. application is made under section 94 (1) (a) (c) (d), 94 (3) (b) (ii) of the Employment and Labour Relations Act, [CAP 366 RE 2019] (herein the Act) Rule 24 (1), 24 (2) (a) (b) (c) (d) (e) (f), 24 (3) (a) (b) (c) (d) 24 (11) (a) (b), 28 (1) (a) (b) (c) (e) and 55 (1) (2) of the Labour Court Rule, GN. No. 106 of 2007 (herein the Labour Court Rules). The application is supported by the joint affidavit sworn by applicants. i On the other hand, the respondents filed a counter affidavit sworn by their Advocate, Peter Nyangi challenging the application. In additional the respondent's Counsel raised preliminary objections thereto which is the subject matter of this ruling. The relevant preliminary objections are to the effect that: - i. the application is bad in law for being Omnibus: .. ii. the Notice of representatives of the applicants is defective. iii. the application is bad in law for -lack, of an order of XX •' X ■*»./*** ■- ■■ “ ■■ jx ~ representative suit. >, "X/X iv. the affidavit supporting'the chamber, summons is bad in law for \\ - ~,r' failure to disclose the sources of information. ■■X — The preliminary objections were argued by way of written . ‘X/' / rii * submissions. At \theshearihg both parties were represented. Mr. Hemedi ,Omari kimwaga, Personal Representative was for the > / ’■> X applicants‘.where as Mr. Peter Nyangi, Learned Counsel appeared for ., 'x\. X / . the respondents. Submitting on the first ground of preliminary objection Mr. Peter Nyangi for the respondent submitted that, the applicant prayed for this Court to call for the record of Execution No. 436 of 2017 and Miscellaneous Application No. 636 of 2018 issued by the Deputy 2 Registrar of which two different cases were separately decided. It was submitted that, the applicants wrongly challenge Execution No. 436 of 2017 and Miscellaneous Application No. 636 of 2018 in the same application. The Learned Counsel stated that, the applicants should have opted to challenge one of the decisions delivered by Hon. Simfukwe but not to consolidate the disputed decisions in this application. x\ * I • r‘ It was further submitted that the order of Execution No. 436 of 2017 was delivered on 09/10/2018 arid'lhisiapplication for revision was filed on 25/10/2019, after almost one year and sixteen months. The Learned Counsel argued thatrevision against Execution No. 436 of 2017 was filed outxof time required by the law as provided under Clause 21 partjl^pf the law of Limitation Act, [Cap 89 R.E 2002]. It was added, that the provision of the Law of limitation Act is cited * * 1 \ T* ■’ —* ■* s j "l " ' k ” because the^ Labour Court Rules does not stipulate the time limit to \\ " challengelhe Deputy Registrar decision through revision. As to the second ground of preliminary objection it was submitted that, the notice of representation filed by the applicants is defective for being signed by only one person known as Seleman Athman Salehe who authorized to be represented by Hemedi Omary 3 Kimwaga in the absence of the signatures of the remaining applicants contrary to Rule 43 (1) of the Labour Court Rules. He prayed for the same to be strike out. Regarding the third preliminary objection it was submitted that, the present application was filed without permission of the Court contrary to Rule 44(2) of the Labour Court Rules/- Itxwas added-that, according to the record there is no order of the Court permitting one person to institute the application on behalf of others. To strengthen his submission, the Learned CounseLrefen:ed'the'Court to the case of Lujuna Shubi Ballonzi Senior \y%. /Registered Trustees of Chama cha Mapinduzi (1996j'TERj203. It was submitted further that, Order I Rule 8 of the Civil Procedurer-Code. fGAP 33 R.E 2002] applicable in the referred case is Mutatis /Mutahdis-to Rule 44 (2) of the Labour Court Rules which < -. Z-X\ involve the>requirement of the Notice of representative suit and failure of which make the application incompetent. In respect of the fourth preliminary objection, it was submitted that the deponents failed to disclose the source of information in the verification clause concerning with paragraph 3.8 of the applicant's affidavit. It was submitted that, the failure of the deponents to 4 disclose such source renders the affidavit defective which suffice for the whole application to be dismissed. To buttress his submission, he cited the case of Augustino Lyatonga Mrema Vs. Attorney General and others, [1999] TLR 273. He therefore prayed for the affidavit in question to be dismissed. '* . Z O'* zL if '* \ Responding to the first preliminary objectiopMr. HemediOmari v'\. Kimwaga, Personal representative for the applicants submitted that, the applications are properly joined, that.ExecutibnNo. 436 of 2017 /X KX \> and Miscellaneous Application No. 636. of 2018 .were all listed before the Deputy Registrar and were all dismissed as a result of untrue facts. The Personal Representative ^ stated that, the only remedy available to the applicants'were to file an application for revision against both decision's<of execution and application for restoration. It \x// was added that, as far as the parties are the same, reliefs sought developed, from the same transaction thus, in order to administer justice and save time it has been the practice of this Honourable Court to allow more than one prayer in one application. To cement his submission he cited the case of Rutagatina C.L. vs. The Advocate Committee and Clavery Mtindo Ngalapa, Civ. Appl. No. 98 of 2010. 5 As to the second preliminary objection it was submitted that, Rule 43 (1) of the Labour Court Rules prescribe that the representative who acts on behalf of any party in any proceedings shall, by a written notice advise the Registrar and ail other parties of the name of the Representative, the postal address, place of employment or business, any available fax number, email and telephone pumbe,f/which..were all complied with. \s V ' In respect of the third ground, it was submitted that, the present application is brought by the applicants jointly thus, there was no need to file a representative suit.. ‘ Regarding the fourth, ground’it was submitted that, it is well stated in the verification clause that the applicants know the facts to (f XX ' ■* \\ the leveKbes^of their knowledge. It was also submitted that as per paragraph 3;8<;pfjhe affidavit the applicants openly stated that on V. 1 i. )r^ 14/M72018;tney appeared before this Court on the date fixed for 4,r mention waiting for feedback from the Court broker but surprisingly, they were informed that the matter was dismissed. The Personal Representative submits that such information is the judicial notice of which acknowledgement of its source is not required. 6 It was further submitted that the case of Augustino Lyatonga Mrema (supra) cited by the respondent's Counsel is distinguishable to the circumstances of this case. He therefore, prayed for the relevant objection to be dismissed. In the upshot the Personal Representative prayed for the dismissal of the preliminary objections as they want to delay justice. . ' . , '■'S ''x* • "> In rejoinder Mr. Peter Nyangi, Learned Counsel for the respondents reiterated his submission in chief; ■ 'i’/ After considering the rival submissions.of the parties, court records l| \ and applicable laws I find thejssue to be determined is whether the preliminary objections raised by’ the respondents' Counsel are meritious. __ y W.- * A v x\ ?j In the;first preliminary objection the respondent raised that, the appjicationis-badin law for being Omnibus. Learned Counsel for the respondents ” argued that the applicants wrongly joined two applications arising from different decisions in one application. The record reveals that Execution No. 436 of 2017 was an application for execution and the same was marked closed after the parties settled the matter. As for Miscellaneous Application No. 636 of 2018 it was an application for enrolment of application for Execution No. 436 of 7 2017. The record reveals further that Miscellaneous Application No. 636 of 2018 was dismissed after the applicants conceded to the preliminary objections raised thereto. The record further shows that, the preliminary objections conceded by the applicants in Miscellaneous Application No. 636 of *'z' ' \ 2018 were as follows, that there was no notice of repres'entation/that the application was not proper in the sense that, it should, have been filed in a way of reference and not enrolment as the applicants did and the last preliminary objection was4hat^the-;affidavit in support of the chamber summons was defective'Jor failure to disclose the source of information. The Hon/p-Deputy Registrar upheld all mentioned preliminary objections and.dismissed Miscellaneous Application No. 636 of 2018. '( £ \ -------» Undefx such>Jcircumstance 1 join hands with the Personal representatiyeHor the applicants that both applications arose from * ■r the same transaction because the one for enrollment was filed after that for execution was closed. Now the issue to be addressed is whether it is proper to file revision application against two applications mentioned above. The issue of joining applications was properly determined by this Court in the case of China 8 Communications Construction Company Limited v. Simon Manfred, Lab. Div. MBY. Rev. No. 08 of 2014 [2015] LCCD 1 where it was held that: - 'The general concept of united or combination of applications was once entertained in the case of Tanzania Knitwear Ltd. v. Shamshu Esmaii [1989] TLR 48..where^ V./’ applicant combined two distinct applications S' .X namely one for setting side ^temporary v-. injunction and another for issuance rof a temporary injunction, where. objection was taken against such a scombination on the ground that it wasbad in law. Mapingano, J. (as he then was) held that; ‘In my opinion the combination bf{the two applications is not bad at all/l'Jaibw of no law that forbids such a t { X ■' '•< - / , \\ ■^q^irse^Cojrt of law abhor multiplicity of -^proceedings, Courts of law encourage the {{opposite'. Also'in the Court of Appeal case of MIC Tanzania Limited v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103 of 2004 (unreported) it was held that: - '.... unless there is a specific law barring the combination of more than one prayer in one chamber summons, the courts should 9 encourage this procedure rather than thwart it for fancifui reasons, l/lfe wish to emphasize, ait the same, that each case must be decided on the basis of its own peculiar facts'. On the basis of the above cited cases, is may view that, it is crystal clear that it is not fatal to join prayers arouse out of different applications so long as they arose from the same" transactions. It is true that the applications in this case arose from, the same '-.j r transaction because the application for restoration .was the result of closer of the application for execution, as rightly submitted by the Personal Representative for the respondents. \ ---- However, in the circumstances of this case it is my considered . X\ ’’k '■ view that, the contested applications were wrongly joined in the same ... _ application.,As the .record reveals Execution No. 436 of 2017 between the same parties-herein was marked closed on 09/10/2018 and the present application was filed on 25/10/2019 which is approximately a year after the finalization of the execution application. The time limit for filling revision applications against the Registrar's order or ruling is not provided in the labour laws thus, under the powers vested in Rule 55 (1) of the Labour Court Rules the court has to resort to the provision of other laws. io Under the circumstance the court has no any other option than to resort to the provision of the Law of limitation Act as rightly submitted by the Learned Counsel for the respondents. Under clause 21 Part III of the relevant law, the limitation period for applications not provided in any written law is sixty (60) days. Therefore, the applicants were supposed to challenge Execution\No.^436 oL2017 /a\ ' Vi within sixty days from the date of the decision. HoweVdr, as it is vivid from the records in this case the applicants challenged the execution application after almost a year from; the'decision of the Deputy Registrar without seeking leave of the court. As to Miscellaneous. Application. No. 636 of 2018 the same was X i delivered on 27/09/2019' and the application to challenge the same /S-""-.\ v._ was timely filed !dn 25/107-2019 in this Court. On the basis of such analysis, it^fe^rny View that, the contested applications were wrongly joined in this' Eourt for the reason stated herein above that the executiorCapplication was contested in this court out of time without seeking leave of the Court. Following such finding, for the interest of dispensing justice expeditiously Execution No. 436/2017 wrongly joined in this application is hereby expunged from the record and the Court will ix only remain in determination of Miscellaneous Application No. 636/2018. Thus, the first preliminary objection is determined to that effect. In the second preliminary objection the Learned Counsel for the respondents contended that, the notice of representation of the applicants is defective for being signed by only one?applicant..I have cross checked the disputed Notice of Application;, as rightly submitted by the Learned Counsel for the respondents ^ is<trpe that the said document is only signed by one . of the applicants. In the said document it is not even indicated asKto) who among the applicants signed the Notice of Representatidnjh'question. •/ * The records inthis case'reveals that, the applicants are eight in number. Therefore^ they were all supposed to sign in the notice of XX~'' application toXuthorize their representative to represent them in this W /aX' * applicationSln'the event, the applicant's notice of representation filed in this court is defective as rightly contested by the Learned Counsel for the respondents. Hence, for the interest of justice the applicants notice of representation available in this court is expunged from the records and the applicants are given chance to file another notice of 12 representation if they still wish to be represented by either the same person or someone else. In the third preliminary objection the Learned Counsel for the respondent stated that, the application is bad in law for lack of an order of representative suit. It is well known that, application of this kind is initiated by notice of application as provided under Rule.24 (1) of the Labour Court Rules. Looking at the .applicants', notice of application and the supported documents, toj wit chamber summons and the affidavit they are all signed,by^alljapplicants. Under such (■'" S.\ circumstance it is my view' that, the present application was not initiated as a representative suit.-a£ the Learned Counsel for the respondents would ^isfi'^this Court to believe. Thus, the third Z--— <\\\ Z preliminary objection is;dismissed for want of merit. On/the.last.preliminary objection, it is alleged that, the affidavit (( )i> " supporting''the application is bad in law for failure to disclose the source of information available at paragraph 3.8 of the affidavit in question. The relevant part of the affidavit provides as follows:- 'Paragraph 3.8 That, on 14th day of November, 2018, we appeared before this honourable court where surprisingly we have informed that on Sfh day of October, 2018 the matter 13 has been settled between the parties in the absence of decree holders. A copy of the ruling is herein attached and marked Annexture A4 for which leave of this honourable court is sought to form part of this affidavit.'. As the wording of the quotation above cle.arly indicates, that, they judicial information of which 1 join hands with ’.the applicants that, there was no need of disclosing who/informed the applicants such information. Therefore, I find no relevance of such objection. Furthermore, as it is stated in (a nurriber of cases preliminary objection should be confined to, matters of law and not facts which needs evidence to be<prdyed. In my view the fourth preliminary objection is not a.ipure^ point of law thus does not qualify to be <f considered^as a’prelimmary objection. \xln the result I find the third and fourth preliminary objections raised by-the Learned Counsel for the respondents have no merit and are hereby dismissed. Regarding the first preliminary objection, as stated above, it has merit however for expeditious dispensation of justice the Court decided to expunge Execution No. 436 of 2017 from record for being time barred and proceed to determine Miscellaneous 14 Application No. 636 of 2018. Turning to the second preliminary objection as decided above it also has merit. However, for the interest of justice, the defective Notice of representation is also expunged from the record and the applicants are availed with the chance to file proper notice of representation if they still wish to have a representative. Thus, as the preliminary objections' have .been </x\ ' ' determined then the application will proceed on merit? X v It k sn nrdprpd. 15