tumaini shirima 6 others vs china railway seventh group co ltd 2022 tzhcld 836 12 september 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA LABOUR REVISION NG. 2 OF 2022 TUMAINI SHIRIMA .................... ............................................. 1st APPLICANT MODESTA BUCHUMIIHOLIHOZE............. ................. .......... 2nd APPLICANT SEMENI HASSAN BUTWENGO ................................. .............. 3rd APPLICANT AYOUB SHABAN HAMIS ......... ............... .................................4th APPLICANT IDD JUMA MITIMINGI ............. ....... ....................................... 5th APPLICANT SELEMANI RAMADHANI CHAKUPEWA............... .............. 6th APPLICANT GOZBERTJOSEPH SIGARETI .................. .................. ............ 7th APPLICANT

VERSUS CHINA RAILWAY SEVENTH GROUP CO. LIMITED.............. . RESPONDENT (Application for revision from the Award of the Commission for Mediation and Arbitration for Katavi at Mpanda) (Ngaruka 0., Arbitrator) Dated 28th day Of May 2020 In (Labour Dispute No. KTV/CMA/43/2019)

RULING Date: 11/08 & 12/09/2022 NKWABI, 1: Apart from the counter-affidavit to resist the application for revision, the counsel for the respondent also lodged a notice of preliminary objection on points of law. In fact, three legal points of objection were preferred. Since the legal point of objection in respect of the representative suit disposes this matter, I will not determine the rest of the legal points of objection. i That legal point, of objection that. I am going to consider is that the application for revision is incompetent for want of leave of the Court on the part of the 7th applicant herein to endorse the Notice of application and the affidavit; institute; and prosecute this application for and on behalf of the remaining applicants in representative capacity. Expounding on this point, the respondent's counsel contended that the notice of application, chamber summons and the affidavit are signed by the applicant alone and are instituted on behalf of the remaining applicants purporting to be a representative suit. He said that offends rule 44(2) of the Labour Court Rules, 2007. He added, in absence Of leave on the part of the 7th applicant to represent the remaining applicants in this matter or notice of institution of the suit, render the application incurably defective and liable to be struck out with costs. In what appears to be a written submission, Mr. Gadiel

Sindamenya, learned counsel for the applicant asserted that the application for revision is competent in that, lack of leave of the Court on part of the 7- applicant does not occasion failure of justice. 2 It is worthwhile to point out here that there was no rejoinder submission from the counsel for the respondent. It is clear that the counsel for the applicant conceded that the 7th applicant has no leave to represent the rest of the applicants. He merely justifies it by claiming that lack of leave does not occasion a failure of justice. I do not purchase the assertion made by the counsel of the applicant because the omission to have the leave is contrary to the law and it is unacceptable, It is not acceptable in law based on the ruling that can be seen in the decision of the Court of Appeal of Tanzania that was clearly stated ih Ramadhani Omary Mbuguni v. Ally Ramadhani & Another, Civil Application No. 173/12 of 2021 CAT (unreported) decision which held that: "Letters of administration being an instrument through which the applicant traces his standing to commence the proceedings, was in our view an essential ingredient of the application in whose absence the Court cannot have any factual basis to imply the asserted representative capacity. It is now a settled law that, where, like in instant case, a party commences proceedings in 3 representative capacity, the instrument

constituting the appointment must be pleaded and attached. Failure to plead and attach the instrument is a fata! irregularity which renders the proceedings incompetent for want of the necessary standing." It is overused law that failure to sue or be sued in the proper capacity is fatal. See Abdullatif Mohamed Harms v. Mehboob Yusuph Osman & Another, Civil Revision No, 6 of 2017 CAT (unreported) where it was, at pages 27 & 28, authoritatively stated: "When all is said and applied to the situation at hand, as already mentioned, it is beyond question that the respondent was, at all material times, the administratrix of the deceased's estate. The life of her legal representation with respect to the estate was still subsisting at the time of her transaction with the 1st respondent just as the suit land was vested in her in her capacity as legal administratrix. But, as we have also hinted upon, the 2^ respondent was not sued in that capacity. Instead, the 1st respondent sued her in her persona! capacity and, for that matter, no executable relief could be 4 granted as against her personally with respect to the suit land which, as it turns out, was vested in her other capacity as the legal representative." Consequently, and it is for that basis that I rule that the application for revision is incompetent. I proceed to strike it out of this Court's register. Each party to bear their own costs for this matter is a labour application. It is so ordered. J. F. NKWABI

JUDGE 12/09 2022 5 Date 12/09/2022 Coram - Hon. M.S. Kasonde - DR Applicants - 7th Present in person Respondent - Absent B/C A.K. Sichilima - PRMA Court: Ruling delivered this 9th day of September, 2022 in the presence of 7th applicant in person but in absence of the Respondent. M.S. Kasonde Deputy Registrar 12/09/2022 6