tanzania road haulage vs joely gabriel gwimo 2018 tzhcld 48 7 may 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 565 OF 2016 TANZANIA ROAD HAULAGE (1980)LTD............ APPLICANT VERSUS JOELY GABRIEL GWIMO...............................RESPONDENT RULING Date of Last Order: 23/03/2018 Date o f Ruling: 07/05/2018 L.L.Mashaka, J This was to be a ruling in respect of the preliminary objection on points of law, raised by the respondent on the application for revision that; 1. The application suffers from wrong citation o f the enabling provision (sic) o f law. 2. The application is time barred. And, hearing was by way of written submissions and both parties adhered to the schedule. I appreciate the timely filing of the submissions. But in the course of the preparation of this Ruling, the Court noted suo motu that the Counter affidavit in opposition of the application and the Notice of Preliminary objection thereto were drawn and filed by an unknown entity. That the same have been filed by "Tarotwu", an unknown entity in law, hence no name of the drawer thereto. It trite law on proper procedural requirement of the law on Court pleadings to meet the required legal competency and suitability so as to confer this Court with jurisdiction to entertain the same and the Court cannot proceed with a matter at hand before resolving the jurisdiction issue. That legal principle is begotten from the case of Fanuel Mantiri Ng'unda V. Herman M. Ng'unda & Another CAT Civil Appeal No 8/1995 at Mwanza where the Court held that:- "...the question o f jurisdiction for any court is basic, it goes to the very root o f the authority o f the court to adjudicate upon cases o f different nature... (T)he question o f jurisdiction is so fundamental that courts must as a matter o f practice on the face o f it be certain and assured o f their jurisdictional position at the commencement o f the trial. J t is risky and unsafe for the court to proceed on the assumption that the court has jurisdiction to adjudicate upon the case..." Also in the case of Richard Julius Rukambura V. Issack N. Mwakajiia & Another, Civil Appeal No. 3/2004, CAT (unreported) the Court held that:- "...the question o f jurisdiction is fundamental in any proceedings and can be raised at any stage even in the appeal stage. The Court; suo motu can raise it..." The procedural issue noted is that the respondent has failed to show the name of the drawer in his pleadings particularly Counter affidavit filed in this Court on 19th April 2017 and the notice of Preliminary Objection filed on 21st August 2017, where it appears as drawn and filed by "Tarotwu", which offends Section 44(1) of the Advocates Act Cap 341 RE 2002. This Court, as noted earlier, has on several occasions held that a legal firm, among others, in the case of British Council Tanzania Vs. Godfrey Kinogo, Revision No. 238/2016, HCLD at DSM (unreported) per Mipawa, J [as he then was] delivered on 17/05/2017; whereas the case of Lucas A Nzegula (Son and Heir of Zuhura John) Vs. Isaac Athuman and Royal Insurance (T) Ltd, Civil Appeal No. 66/2008 [unreported] at p. 11 per Mihayo, J (as he then was), was quoted in extensoand held that: "Two as I have said above, the submissions by the respondent were filed by C&M Advocates. It would appear the advocate who signed as Advocate for the second respondent is one Oscar Epaphra Msechu telling by the rubber stamp used. Now, C &M Advocates is not an Advocate in terms o f section 2 and 6 and 8 o f the advocates Act (Cap 341 R.E 2002). C & M Advocates cannot therefore file a document. The document must be filed by an individual advocate having the conduct o f the matter ”for and on behalf "of C & M Advocates" also quoted in the case of Omari Ali Omar Vs Registrar of Titles, Misc. Land Application No 90 of 2014, HCLD, at Dar Es Salaam (unreported) per Hon. Mansoor,J. Also noted, in the case of Ramadhani Sood Balenga Vs Hans Aingaya Macha, Land Case No. 66/2013, it was held that: "The plaint in question was signed by "C.E.R.W &Co Advocates and Global Chambers. These are partnerships or firms, duly registered under the Business Name Act; Cap 214 R.E 2002 and they are composed with Advocates as partners. The partners in these law firm or partnership are Advocates who are enrolled as Advocates and they hold in their individual names certificates to practice as legal practitioners. With respect; these Firms or Partnership are not legal practitioner or advocates recognized by the Advocates Act and thus they are not persons entitled to practice as advocates under the Advocates A ct C.E.R. W & Co Advocates and Global Law Chambers are not Advocates or legal practitioners recognized by the law. There are not any such persons as C.E.R. W & Co. Advocates or Global Law Chambers called to the bar and enrolled under S.2 o f the Advocates Act and their names are not registered in the roll o f Advocates. C.E.R. W & Co. Advocates and Global Law Chambers cannot legally sign and or file any pleading in the Courts. The endorsement o f Court pleadings is an irregularity in procedure and so the pleadings endorsed by persons not enrolled as a legal practitioner or advocates renders such process/pleadings defective." Both Counter Affidavit and Notice of Preliminary Objection lack the name of the drawer. Tarotwu who is shown to have conduct for preparation of pleadings is not a name of the person who drew the Counter affidavit and Notice of preliminary objection. Therefore the counter affidavit and notice of preliminary objection offend Section 44 (1) of the Advocates Act, Cap 341 R.E 2002 which requires every person who draws or prepares any document shall endorse name or cause the same be endorsed. See also the cases of Ashura Abdulkadri Vs. The Director Tilapia Hotel, Civil Appeal No.2/2005,CAT at Mwanza [unreported] per Msoffe, JA (as he then was), where the CAT amplified the provisions of Section 44(1) of the Advocates Act, Cap 341 RE 2002. The position above is also employed in the case of Bollore Africa Logistics Tanzania Ltd Vs Rose Mwaikambo, Revision No. 291 of 2016,HCLD at Dar Es Salaam[unreported] Mashaka,! Hence this Court finds Counter Affidavit and Notice of Preliminary Objection are defective and accordingly struck out. I grant the respondent leave to file proper counter affidavit within 14 days. This application for revision to proceed on merit. So ordered L.L.Mashaka JUDGE 07/05/2018