SHUKURU MWAINUNU P

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA LABOUR REVISION NO. 18857 OF 2024 (Arising from the award of the CMA at Kahama in CMA/KHM/74/2021 issued on 19/12/2023) SHUKURU MWAINUNU …………………………………APPLICANT VERSUS BULYANHULU GOLD MINE LIMITED ………..….RESPONDENT RULING 28th November, 2024 & 7th February 2025. Massam, J: - The applicant Shukuru Mwainunu made this application to call the records and proceedings of the commission for Mediation, and Arbitration at Kahama, in respect of Labour Dispute REF.NO.CMA/KHM/74/2021 revises it and order reinstatement of the applicant’s employment without loss of remuneration, entitlements, benefits, and any other dues. Alternatively, order payment of 60 months’ salary compensation, payment of three (3) months in lieu of notice, payment of ten (10yrs) severance pay, payment of USD 8589 being terminal benefits unlawfully deducted by the respondent, repatriation of the applicant and his personal effect to a place of 1 recruitment and payment of subsistence allowances from 16th day of November 2021 up to date of repatriation. This application was brought by chamber summons and notice of application, under the provision of section 91(1) (a) and 91(1) (b) section 91(2) (a),91(2) (b) 91(2) (c) and section 94 (1) (b), (i) of the Employment and Labour Relations Act Cap 366 R:E 2019 and Rule 24(1), rule 24(2) (a), 24(2) (b), 24(2) (c), 24(2) (d), 24(2) (e) & 24(2) (f), rule 24(3) (a) 24(3) (b), 24(3) (c), 24(3) (d) and rule 24(II) (a) and Rule 28 (1) (c), 28(1) (d) and 28(1) (e) of the Labour Court Rules 2007 ( GN No. 106 of 2007 and supported by the applicant's affidavit and opposed with respondent’s counter affidavit to challenge the application. Briefly, the facts heading to this revision are on 17th November 2021 Shukuru Mwainunu hereinafter the applicant received the letter of termination of employment following disciplinary hearing held on 20th and 27th October 2021 and appeal held on 12th and 16th November 2021 which upheld the decision of the disciplinary hearing . The letter indicated that he was found guilty of breach of rule 5.1 of the Barrick Disciplinary Code (Bulyanhulu Disciplinary Procedure); incompatibility (improper behaviour)-assault, attempted assault or fighting at work or 2 within the company premises. Undaunted, he preferred the dispute to commission. In its finding among others things the commission rejected claims of repatriation of personal effects and daily subsistence but ordered the respondent to pay the applicant sum of USD 102,921.3 within fourteen days from the date of that ruling. The applicant was aggrieved by the decision and award of the commission for Mediation and Arbitration before Alfred Massay Arbitrator on 19th December, 2023 in CMA/KHM/74/2021 hence this revision. When the matter came for hearing, the respondent raised a preliminary objection on point of law that; - 1. The notice of application contravenes Rules 24 (2) of the Labour Court Rules G.N. No. 106 of 2007 by containing grounds of the application. 2. The application for revision is incurably defective for contravening Regulation 34 (1) of the Employment and Labour Relations (General) G.N. No. 47 of 2017 and the principles stated in the cases of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported) and Saleh 3 Njovu v. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (unreported). It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily. See: the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011, The Bank of Tanzania Ltd v. Devram P. Valambhia, Civil Application No. 15 of 2002, Khaji Abubakar Athumani vs Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 and Modest Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 (all unreported). During the hearing of preliminary objection, on 28th November, 2024. The applicant was represented by Mr. Dotto a personal 4 representative whilst the respondent enjoyed the legal service of Mr Imani Mfuru Advocate, by consensus they agreed to urge their P.O by written submission, the prayers were granted and the court scheduled the dates as follows that respondent to file submissions on or before 10/12/2024, The applicant to file reply on 23/12/2024 and rejoinder if any on 14/1/2025 and ruling on 24/1/2025 and the court order was compiled with. Starting with the first limb of preliminary objection, that the notice of application contravenes Rules 24 (2) of the Labour Court Rules G.N. No. 106 of 2007 by containing grounds of the application. Mr. Mfuru advocate argued that under Rule 24 (2) of the Labour Court Rules G.N. No. 106 of 2007 provides the contents of a notice of application which reads that; “The notice of application shall substantially comply with Form No.4 in the Schedule to these Rules, signed by the party bringing the application and filed and shall contain the following information— (a) the title of the matter; (b) the case number assigned to the matter by the Registrar; (c) the relief sought; 5 (d) an address at which that party will accept notices and service of all documents in the proceedings; (e) a notice advising the other party that if he intends to oppose the matter, that party shall deliver a counter affidavit within fifteen days after the application has been served, failure of which the matter may proceed ex-parte; and (f) a list and attachment of the documents that are material and relevant to the application.” Mr. Mfuru submitted further that the above provision uses the word “shall” and under Section 53 (2) of the Interpretation of the Laws Act [CAP. 1 R.E. 2019] and the word shall mean mandatory. Additionally, Mr. Mafuru said that in the notice of application for revision, the applicant has included grounds of the application at page 6 of the application for revision contrary to the above provision. He fortifies his argument by citing the case of Mkurugenzi, Kimbinyiko International Co. Ltd vs. Baltazar Joel Manyika, Labour Application No. 10 of 2023, High Court of Tanzania (Labour Division) at Dodoma (Unreported) the court considered the mandatory nature of the format of Form No. 4 to the Labour Court Rules (supra), at page 10, the Court stated that; - 6 “I hold that since the provisions of Rule 24 (2) of the GN. 106 of 2006, provides for the mandatory procedural law on the format to be adopted when preferring an application on labour matters, any attempt to deviate from the procedure and format cannot be condoned by this Court by invoking the oxygen principle as the same was not introduced to blindly disregard the mandatory procedural laws”. See the case of Omary Saidi and Others v. Tanzania Leaf Tobacco Company Ltd, Misc. Labour Application No. 2 of 2019, High Court of Tanzania at Tabora (Unreported) Notably, Mr. Mfuru said that in the above cases, Rule 24 (2) and Form No. 4 of the Labour Court Rules, are mandatory and are the root of any application in labour matters, and as such, any deviation from the prescribed format goes to the very root of the application and cannot be saved by the overriding objective/oxygen principle. In the Court of Appeal case of Mondorosi Village Council & Others v. Tanzania Breweries & Others, Civil Appeal No. 66 of 2017, Court of Appeal of Tanzania at Arusha (Unreported) it was held that; “Regarding the overriding objective principle, we are of the considered view that, the same cannot be applied blindly against the mandatory 7 provisions of the procedural law which go to the very foundation of the case” Finally, Mfuru argued that as the notice of application is the foundation of the case and its format has not been complied with so he prayed that the first preliminary objection to be upheld and the application to be strike out. Coming to the second limb of the preliminary objection that the application for revision is incurably defective for contravening Regulation 34 (1) of the Employment and Labour Relations (General) Regulations G.N. No. 47 of 2017 and the principles stated in the cases of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported) and Saleh Njovu v. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (unreported). It was submission of Mr. Mfuru that in the current application, a notice of intention to seek revision is attached to the application for revision but the same was not served to the respondent as regulation 34 (1) of the Employment and Labour Relations (General) Regulations (Supra) it is mandatory for a notice of intention to seek revision to be filed and served to the opposite party before an application for 8 revision is filed. He cemented his argument by referring the case of Saleh Njovu v. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (unreported) where the Court held that; “As raised by the Respondent and conceded by the Applicant, Regulation 34 (1) of the Employment and Labour Relations (General Regulations), G.N. No. 47 of 2017 requires at a mandatory tone a person intending to seek revision before the Court to file CMA F10 and serve the adverse party before lodging the application for revision” Apparently, Mr. Mfuru said that the purposes of filing and serving the said CMA F10, was stated in the case of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported), at page 9 which the court held that:- “It is the duty of the Court to see that the provision of procedural law is not abused or under rated, and that undue advantage is not taken of it. In so doing, the Court will not be banking on technicalities. It is acting in aid of substantive law and justice which abides to its procedural handmaids. More so, the notice (CMA F.10) carries both 9 administrative and judicial function. One, it is administrative in the sense that it alerts the CMA to prepare the records as there is an intended revision. Two, it is judicial in the sense that it informs the Decree Holder that the Decree cannot be executed. Three, it informs the opposite party that revision process has commenced” Finally, Mr. Mfuru argued that the applicant did not serve CMA F10 to the respondent and he prayed this Honourable Court uphold the second preliminary objection by striking out the application for revision for being incompetent. Arguing on first preliminary objection that “The notice of application contravenes Rules 24(2) of the Labour Court Rules G.N.No.106 of 2007 by containing grounds of the application.” Mr. Dotto argued that the first preliminary objection is based on the contention that “the notice of application shall substantially comply with Form No.4 in Schedule to these Rules, signed by party bringing the application and filed and shall contain the title information- (a) the title of matter; (b) the case number assigned to the matter by the Registrar; (c) the reliefs sought; (d) an address at which that party will accept 10 notices and services of all documents in proceedings; (e) a notice advising the other party if he intends to oppose the matter, that party shall deliver a counter affidavit within fifteen days after the application has been served, failure of which the matter may proceed ex – parte; and (f) a list and attachment of the documents that are material and relevant to the application.” Apparently, Mr. Dotto said that the above requirement was complied with on following reasons;-Firstly: According to the notice of application in respect of Labour Revision No. 1000018857 of 2024, the Applicant substantially complied with the requirements of Rule 24(2) (a) of the Labour Courts Rules, G.N.No. 106 0f 2007 by describing the title of the matter, complied with Rule 24(2)(b) by describing the case number assigned, complied with Rule 24(2)(c) by describing reliefs sought with the grounds of seeking that reliefs; complied with Rule 24(2) (d) by describing the address of services, complied with Rule 24(2) (e) by giving a notice of ex - parte proceeding to the Respondent and complied with Rule 24(2) (f) by detailing list of documents which are relevant to this application. Secondly; the grounds of revision detailed by Applicant in rule 24(2) (c) of the notice of application do not violate or offend the format of Form No. 4 to the Labour Court Rules because 11 the Applicant has not initiated his own new sub rule but the grounds are detailed within the reliefs sought for better understanding to why the Applicant is seeking the referred reliefs. Should the said grounds be described in a new sub rule to Rule 24(2) of the Labour Court Rules, Government Notice No. 106 of 2007, and the said description could be regarded to violate and offend the format of form No.4. More on that, he said the case cited by the respondent of “Mkurugenzi, Kimbinyiko International Co. Ltd vs. Baltazar Joel Manyika, Labour Application No. 10 of 2023, High Court of Tanzania (Labour Division) at Dodoma ”is irrelevant to this application due to the fact that the preliminary objection in the cited authority was reflected the point of law that the court was wrongly and improperly moved by the applicant by citing inapplicable provision of law and filing chamber summons only. Likewise, in the case of “Omary Saidi and Others v. Tanzania Leaf Tobacco Company Ltd, Misc Labour Application No. 2of 2019, High Court of Tanzania at Tabora (Unreported)” is also irrelevant to this application because it discussed the preliminary objection which was raised on the point of law that the applicant failed to describe address of parties, legal issues and reliefs sought as well as failing to describe the list of documents. 12 Moreover, he said that the case of Mondorosi Village Council & Others v. Tanzania Breweries & Others, Civil Appeal No. 66 of 2017, Court of Appeal of Tanzania at Arusha (Unreported).” is also irrelevant to this application due to the fact that the points of law in that case was based on the fact that “the appellants omitted to include in the records and memorandum of appeal a letter to lower court requesting for copies of judgment, decree and records of proceedings and that the certificate of delay thereof is ineffective.” Finally, Mr. Dotto argued that since the respondent’s counsel has failed to describe how Rule 24(2) specifically Rule 24(2)(c) were violated or offended by the applicant prayed the first preliminary objection be overruled. Responding on the second preliminary Objection that “The application for revision is incurably defective for contravening Regulation 34 (1) of the Employment and Labour Relations (General) Regulations G.N. No. 47 of 2017 and the principles stated in the case of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported) and Saleh Njovu vs. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (Unreported).” It was submission of Mr. 13 Dotto that the respondent arguments on the second preliminary objection are based on the contention that “the notice of intention to seek for revision of award (CMA Form No.10) was not served to the respondent before an application for revision is filed.” Apparently, Mr Dotto argued that he served copies of index, notice of representation, Notice of application, chamber summons, and affidavit with annexure to the Respondent on 8th March 2024 via the Respondent’s Legal Officer Mr. Vedastus Christopher. Likewise, submitted that the applicant served copies of index, notice of representation, Notice of application, chamber summons and affidavit with annexure in respect of Misc. Labour Application No. 12351 of 2024 to the Respondent on 10th June 2024 via the Respondent’s Learned Counsel Mr. Imani Mfuru. Moreover, he said that the case of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported) and Saleh Njovu v. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (Unreported).” are irrelevant to this application to the extent explained herein above. 14 Finally, Mr Dotto prayed this Honourable Court to dismiss the first and second preliminary objection for lack of merit. In the way of rejoinder, Mr Mfuru reiterates its main submissions, specifically, at the 5th and 6th line of the said paragraph, the Applicant stated that he has complied with Rule 24 (2) (c) of the Labour Court Rules by “describing reliefs sought with grounds of seeking that reliefs”. The Applicant has stated that the grounds detailed in Rule 24 (2) (c) of the Labour Court Rules do not vitiate or offend the format of Form No. 4. The applicant claims that the grounds are stated for better understanding. More on that, Mr Mfuru clarified that Rule 24 (2) (c) of the Labour Court Rules (supra) that the Applicant has referred states that: (2) The notice of application shall substantially comply with Form No. 4 in the Schedule to these Rules, signed by the party bringing the application and filed and shall contain the following information: (a) N/A (b) N/A (c) the reliefs sought. Apparently, Mr Mfuru said according to the above quoted rule, grounds for seeking the reliefs sought are not supposed to be included 15 on the part of the reliefs. Per the above rule, the notice of application simply needs to state the reliefs sought. He added that Form No. 4 which is found in the Labour Court Rules (supra) has no part where an applicant is supposed to state the grounds for seeking the reliefs. On such basis, the argument that the grounds for seeking the reliefs sought are stated in the notice of application for better understanding is misconceived. Also he said that by containing the grounds for seeking the alleged reliefs, the notice of application clearly violates Rule 24 (2) of the Labour Court Rules. Apparently, he said that case of Mkurugenzi, Kimbinyiko International Co. Ltd v. Baltazar Joel Manyika, Labour Application No. 10 of 2023, High Court of Tanzania (Labour Division) at Dodoma (unreported) is relevant to the current application because the provisions of Rule 24 (2) of the Labour Court Rules are mandatory and the format of the notice of application cannot be deviated from. Likewise, the respondent’s counsel said that the case of Omary Saidi and Others v. Tanzania Leaf Tobacco Company Ltd, Misc. Labour Application No. 2 of 2019, High Court of Tanzania at Tabora (unreported) is relevant to the current application because the main issue was deviation from the format of the notice of application. In the 16 current case, the Applicant has also deviated from the prescribed format of the notice of application stated in Rule 24 (2) of the Labour Court Rules, and as such, the effect of such deviation stated in the case of Omary Saidi (supra) is striking out of the application. Additionally, Mr Mfuru said that on the second preliminary objection, the Applicant’s representative has narrated facts that are not in the affidavit. This can be noted from the last paragraph of page 4 of the submissions. The Applicant has submitted on facts in relation to settlement and other irrelevant matters to the preliminary objection. He prayed this Honourable Court disregard the said submissions as they go against the principles stated in the case of Mukisa Biscuit Manufacturing Ltd v. West End Distributors Ltd [1969] EA 696 which restricts the ascertaining of facts in determining a preliminary objection. Notably, Mr Mfuru said that in the last paragraph of page 4, the Applicant clearly admits that prior to filing the application for revision, he did not serve the notice of intention to seek revision. It was submission of Mr Mfuru that there is no proof that the notice of intention to seek revision, attached as Annexure SM 02 to the application, was ever served on the respondent. Annexure SM 02 is self-explanatory the law 17 set out in the said case requires the said notice to be served to the respondent before lodging the revision in question. Finally, he prayed this court to strike out the application for being incompetent due to the applicant's failure to serve the notice of intention to seek revision prior to filing the application for revision. After going through the written submission of both parties, the issue to determine is whether the preliminary objection has merit or not. Starting with the first limb of preliminary objection, that the notice of application contravenes Rules 24 (2) of the Labour Court Rules G.N. No. 106 of 2007 by containing grounds of the application. Mr Mfuru said that in the notice of application for revision, the applicant has included grounds of the application at page 6 of the application for revision contrary Rule 24 (2) of the Labour Court Rules G.N. No. 106 of 2007. He added that rule 24 (2) and Form No. 4 of the Labour Court Rules, are mandatory and are the root of any application in labour matters, and as such, any deviation from the prescribed format goes to the very root of the application and cannot be saved by the overriding objective/oxygen principle. 18 On his side, Mr Dotto argued that the applicant substantially complied with the requirements of Rule 24(2)(a)(b)(c), (c), (d), (e) and (f) of the Labour Courts Rules, G.N.No. 106 0f 2007. Moreover, the grounds of revision detailed by applicant in rule 24(2)(c) of the notice of application do not violate or offend the format of Form No. 4 to the Labour Court Rules because the Applicant has not initiated his own new sub rule but the grounds are detailed within the reliefs sought for better understanding. I have scanned submission from both parties and going through records. The court records revealed that the labour Revision No 18857/2024 admitted on 05/08/2024 at page 6, the applicant has included the ground of application and its format has not been complied with, which is contrary to the rule 24 (2) of the Labour Court Rules G.N. No. 106 of 2007. More on that Form No. 4 which is found in the Labour Court Rules(supra) has no part where the applicant is supposed to state the grounds for seeking relief. From observation above, I join my hand with the respondent’s counsel that the applicant has not complied rule 24 (2) of the Labour Court Rules G.N. No. 106 of 2007, as it was observed in the case of Mkurugenzi, Kimbinyiko International Co. Ltd v. Baltazar Joel Manyika, Labour Application No. 10 of 2023, 19 High Court of Tanzania (Labour Division) at Dodoma (Unreported) where the court considered the mandatory nature of the format of Form No. 4 to the Labour Court Rules (supra), at page 10, the Court stated that; - “I hold that since the provisions of Rule 24 (2) of the GN. 106 of 2006, provides for the mandatory procedural law on the format to be adopted when preferring an application on labour matters, any attempt to deviate from the procedure and format cannot be condoned by this Court by invoking the oxygen principle as the same was not introduced to blindly disregard the mandatory procedural laws” .See the case of Omary Saidi and Others v. Tanzania Leaf Tobacco Company Ltd, Misc. Labour Application No. 2 of 2019, High Court of Tanzania at Tabora (Unreported). However, I disagree with Mr Dotto that they complied with the said rule 24(2) of the Labour Court Rules G.N No. 106 of 2007 while he included the grounds of the application which is contrary to the said rule on the basis that it for understanding and the cited case are irrelevant with the case at hand. Now, from the above analysis. I find that the first preliminary objection has merit and it is upheld. 20 Coming to the Second limb of the preliminary objection that the application for revision is incurably defective for contravening Regulation 34 (1) of the Employment and Labour Relations (General) Regulations G.N. No. 47 of 2017 and the principles stated in the cases of Bidco Oil & Soap Ltd v. Emmanuel Kimario, High Court (Labour Division) at Dar es Salaam, Revision No. 145 of 2023 (Unreported) and Saleh Njovu v. D. Light (TZ) Limited, High Court of Tanzania at Songea, Misc. Application No. 02 of 2022 (unreported). Mr. Mfuru submitted that the current application is defective for noncompliance with the above-mentioned provisions. He argued that in the current application, a notice of intention to seek revision is attached to the application for revision but the same was not served to the respondent as regulation 34 (1) of the Employment and Labour Relations (General) Regulations (Supra) it is mandatory for a notice of intention to seek revision to be filed and served to the opposite party before an application for revision is filed. Finally, he argued that the Applicant did not serve CMA F10 to the respondent he prayed this Honourable Court uphold the second preliminary objection by striking out the application for revision for being incompetent. 21 On his side preliminary Objection. Mr Dotto said that they served copies of index, notice of representation, Notice of application, chamber summons, and affidavit with annexure to the respondent on 8th March 2024 via the respondent’s Legal Officer Mr. Vedastus Christopher. Likewise, he submitted that the applicant served copies of index, notice of representation, Notice of application, chamber summons and affidavit with annexure in respect of Misc. Labour Application No. 12351 of 2024 to the respondent on 10th June 2024 via the Respondent’s Learned Counsel Mr. Imani Mfuru. In the way of rejoinder, respondent argued that the applicant admitted not to have effected service on the respondent before lodging the said appeal and there was no proof that the notice of intention to seek revision was attached. I have gone through the submission from both parties and records. There is no dispute that CMA F.10 is a mandatory document which needs to be filed prior to institution of the application for revision. This has been provided under Regulations 34(1) Of G.N 47 of 2017 which states that; “The form set out in the third schedule to these regulations shall be used in all matters to which they refer.’’ Notably, such notice is in a prescribed form provided at the third schedule of G.N No 47 of 2007 which commences the whole process of 22 application for revision. Thus noncompliance with the requirement of regulation 34(1) of the Employment and Labour Relation (General Regulation) G.N 47 of 2017 renders the application incompetent. See the case of Anthony Massoy vs China Dasheng Bank Limited, High Court (Labour Division) at Dar es Salaam, Revision No. 51 of 2023 and Unilever Tea Tanzania Limited v. Paul Basondole, Labour Revision No. 14 of 2020, High Court, Iringa Registry (unreported). Now, from the records there was no proof that the notice of intention to seek revision was served to the respondent. No where in Annexure 02 which shows that the respondent received the same. Therefore, I agree with respondent’s counsel that the notice was not served to the respondent, however I differ with Mr Dotto that they served notice to the respondent because there was no proof on same, but also the case of Bidco Oil & Soap Ltd v. Emmanuel Kimario(supra) and Saleh Njovu v. D. Light (TZ) Limited, (supra) are irrelevant. In the premises I find the second preliminary objection has merit and it is upheld. In closing, I pronounce that both preliminary objections have merit and it is upheld. I struck out the application for revision for being incompetent. Being the labour dispute no orders as to the costs. 23 It is so ordered. DATED at SHINYANGA this 7th day of February, 2025. R.B Massam Judge 24