20200929 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY DAR ES SALAAM) AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 256 OF 2016 - (Originating from the decision of this court in Misc. Civil Application No. 555 of 2015) - TALGWU ON BEHALF OF OMARY ZUBERI & 576 OTHERS ............................... APPLICANTS VERSUS ILALA MUNICIPAL COUNCIL. ............................. 1 sT RESPONDENT · KINONDONI MUNICIPAL COUNCIL. ...................... 2 ND RE SPONDENT TEMEKE MUNICIPAL COUNCIL. ........................... ]RD RESPONDENT.____ MOROGORO MUNICIPAL COUNCIL. ................... .. 4TH RESPONDENT "I MWANZA CITY COUNCIL. .................................... 5TH RESPONDENT DODOMA MUNICIPAL COUNCIL ........................... 6TH RESPONDENT TANGA CITY COUNCIL. ......................................... 7TH RESPONDENT MPWAPWA DISTRICT COUNCIL. .......................... STH RESPONDENT MTWARA MIKINDANI MUNICIPAL COUNCIL. ............... ......................... 9TH RESPONDENT MASASI DISTRICT COUNCIL. ............................. lOTH RESPONDENT SONGEA DISTRICT COUNCIL. ............................ 11TH RESPONDENT RULING MASABO, J. This is the ruling in respect of a preliminary objections on a point of law raised by the 9th respondent Before I embark on the determination of the preliminary objection, I find it crucial to briefly narrate the background of this application. The application is for extension of time within which to file a notice of intention to appeal against the decision of this court in Misc. Application No. 555 of 2015. The Applicants (TAL~WU) on behalf of 576 1 tr persons was disgruntled by the decision delivered the Revisionary Panel of the Industrial Court of Tanzania sometimes on 24/2/2015. They did not immediately take the requisite action. To mend things, they filed an application for extension of time within which to file notice of intention to - appeal to the Court of Appeal in Misc. Civil Application No 555 of 2015 which _ ended barren. It was dismissed by Dyansobera, J on 24th March 2017 for lack of merit. The Applicants were still not amused. However, they again did not immediately challenge the dismissal order hence this application. Upon being served the 9th respondents raised a preliminary objection premised on two limbs, that: the Applicants has no locus stand and verification clause is defective. The preliminary objection wes heard in writing. Both parties had • representation. Submitting on the first preliminary objection Mr. Grayson Orcado, Principal Legal Officer for the 9th respondent argued that the Applicant has no locus standi to file this application. He referred to the meaning of the term Iocus standi as defined in Black's Law Dictionary, 10th edition and as articulated in Godbless Jonathan Lema vs Musa Hamisi Mkanga & 2 Others, Civil Appeal No. 47 of 2012, CAT (Unreported) and proceeded to argue that the applicant has no locus stand as there is no relationship between the Applicant and the other· 576 people whom it purports to represent. Thus, it contravenes Order 1 Rule 8 of Civil Procedure Code [Cap 33 RE 2019]. He argued further that the applicant ought to have applied for leave to file a representative suit. He cited the case of Tanzania 2 . ! a Union of industries and Commercial Workers (TUICO) at Mbeya Cement Company Limited v Mbeya Cement Company Limited and National Insurance Corporations (T) Limited [2005] TLR 41 iri support of his submission. . In the 2nd preliminary objection, the respondent counsel submitted that an affidavit sworn by Stephen Mosha is incurably defective for lacking proper verification clause. He cited the case of DPP vs Dodon Kapufi and· - Another, Crim. Application No. 11 of 2008 CAT (unreported), and Jamal Msitiri@ Chaijaba v The Republic, Crim. Application No. 11 of 2012, CAT (unreported) in support and proceeded to argue that the verification clause shows that all facts deponed by Mr. Mosha are in his own knowledge whereas as it is vivid that, being a counsel, obviously did not have personal knowledge of certain facts and especially the dispositions in paragraph 5, 6 and 10 as some of which concerns internal matters discussed in the Board of Directors of TALGWU to which the deponent is not a member. In reply, Mr. Stephen Mosha, Advocate for the Applicant vehemently resisted the preliminary objections raised by the 9th respondent submitting that the 1.5t preliminary objection has no merit since this is not a fresh case. He added that in this application all what the applicants are seeking is an extension of time to appeal to_ the Court of Appeal from the decision of Misc. Application No. 555 of 2015. 3 Responding to 2nd preliminary objection on the verification clause the Applicant Counsel submitted that the same has no merit since the Applicant's Counsel is conversant with this matter as he has been handling it since 2013. Citing the case of Breweries Limited vs Herman Bildad Minja, Court of · appeal, Civil appeal No 12 of 2009 he argued that an advocate can swear . and file an affidavit in proceeding in which he appears for his client but on matters which are in the Advocates personal knowledge only, including matters that transpired during these proceedings. I have dispassionately read the submission of both parties, there are two issues to be determined by this court: First, whether the applicant has locus standito file this application on behalf of 576 persons, Second, whether the Applicant's verification clause is defective and if so, whether the defect is incurable. The first issue is in my settled view very simple. By nature of the issue of locus stand, it is vivid that the objection was hastily raised and is seriously misconceived. The As argued by the Respondent's counsel the matter before this court is an application for extension of time to appeal again a decision to which TALGWU was a party, which means that he had the locusi to represent the parties. The anomaly if any regarding the locus of TALGWU ought to have been raised in the main suit as it cannot be mend at this stage. The cases cited represent the position of the law as it currently stands but for the reasons above, they cannot apply. The first preliminary objection, is consequently, overruled. 4 Regarding the 2nd issue, the law on affidavit requires that a person swearing an affidavit must be conversant with all the facts deponed ie. affidavits should be confined to such facts as the deponent is able to prove, except on interlocutory application where facts in his belief can be admitted (See Order • XIX rule 3 of the Civil Procedure Code, [Cap 33 RE 2019 and in Juma Busiga ~ Val ManagerTPC (Mbeya), Civil Application No 8 2004 CAT. In the instant application, the affidavit is sworn by Mr. Mosha who is identified as the counsel for the Applicants. In my scrutiny of the affidavit and especially, paragraph 5,6, and 10, I could not comprehend the objection because, matters contained in these • paragraphs do not deal with the proceedings of the Board of Directors. Rather it is an information that the Board was convened, the knowledge of which is in my view not confined to the members of the Board. The • Respondents contention would have been valid if the impugned documents contained the minutes/deliberations of the Board. The second issue is therefore answered in the negative. In the final event, I overrule all the objections with costs. DATED at DAR ES SALAAM this 29th September 2020 .. ~=~ ~ J.L. MASABO JUDGE 5 i I - l