upendo nkinda vs metal products ltd 2020 tzhcld 13 6 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 484 OF 2018 UPENDO NKINDA............................................APPLICANT VERSUS METAL PRODUCTS LIMITED....................... RESPONDENT RULING Date of last Order:17/02/2020 Date of Ruling: 06/03/2020 Z.G.Muruke. J. Upendo Nkinda, was employed by Metal products Limited as a sales executive, until terminated after been found guilty of the charges amongst others, gross misconduct following disciplinary hearing. Applicant was aggrieved with disciplinary committee decision, thus, filed complaint at the commission for mediation and arbitration (CMA). Upon fully hearing, arbitrator found applicant guilt of all the charges, therefore dismissed her complaint. Being dissatisfied, with commission decision, filed present revision under Section 91(l)(a) and (b), 91(2)(b) and (c) and Section 94(l)(b)(i) of the Employment and Labour Relations Act , 2004, as amended; Rule 24(1); 24(2)(a), (b)(c),(d),(e),(f); 24(3)(a),(b)(c) and (d) and 24(ll)(c) and rule 28(l)(c),(d) and (e) of the Labour Court Rules,2007 and any other enabling provisions of the law. After long waiting of CMA records, it was then forwarded recently, thus, order for hearing. On the hearing date advocate Stella Simkoko l represented applicant, while Hamida Sheikh, Learned Advocate represented respondent. By consent, hearing was by way of written submissions. Both parties complied with schedule, hence this judgment. In the cause of submission, respondent counsel raised notice of preliminary objections namely, application is defective and is untenable in law because of the following reasons; (a) The application is defective and untenable in law, because the chamber summons is not supported by the affidavit of the person named in the chamber summons, who is Benard Paul Makunja, but instead of which the affidavit that was attached to the chamber application was that of Upendo Nkinda, whose name was not mentioned in the chamber summons. (b) The prayer (a) in the chamber summons, mentions a wrong dispute "CMA Dispute No. CMA/DSM/KIN/ R. 1378/17 delivered by Hon. Fungo, E J on 1st May, 2018. That was a totally different dispute and has nothing to do with the present parties. Therefore, the prayers in the chamber summons and Notice are based on another CMA dispute and not this present one. (ii) The applicant has not invoked the cause which would give her the capacity or justification for her to file this application. Respondent on the other hand replied preliminary objection number one as follows: That all those anomalies are mere typographical errors, which have not in any way prejudiced the respondent because a labour revision before the High Court of Tanzania Labour Division is made of a notice of Application and chamber summons supported by an affidavit. In this case the applicant's Notice of Application is properly drawn in all corners as it provides for the proper citation of the dispute which the applicant is aggrieved with, which is Labour Dispute No. CMA/DSM/ILA/ARB/5714. It provides also for a proper name of the arbitrator who presided the dispute, who was Hon. Chuwa, it provides for the proper date of the Award, which was delivered on 19/07/2018, and it provides for the prayers. The respective Award is attached to the application. Therefore no merit in the application. Having gone through records, chamber summons is different from the notice of application. For clarity prayers in the chamber summons are hereby reproduced (a) That this Honourable court may be pleased to call for and examine the proceedings and the subsequent ruling of the Commission for Mediation and Arbitration at Dar es Salaam in Labour Dispute No. CMA/DSM/KIN/R. 1378/17 delivered by Hon. Fungo E J ON 01/05/2018 in order to satisfy itself on the appropriateness of the said ruling. From the wording of chamber summons above, it is clear that, One; Award sought to be revised arises from labour dispute with reference number CMA/DSM /ILA /ARB/5714 while chamber summons refers dispute No. CMA/ DSM/KIN/R. 1378/17. Two; The affidavit in support of the application is mention to be of the Bernard Pual Makunja in the chamber summons, while affidavit attached is of Upendo Nkinda the applicant not mentioned in chamber summons. 3 Three: The date of delivery is said to be 1st May, 2018 while decision sought to revised was delivery on 19th July, 2018. Four: Decision sought to be challenged issaid to be of Hon. Fungo EJ, while awardattached is of Hon. Chuwa, Arbitrator. It is procedure of this court that, revision before this court are referred by way of chamber summons. Prayers sought in chamber summons are the ones that direct the court what is being asked by applicant. Normally affidavit in support of the application contains. (i) Statement of cause of action on chronaligal orders (ii) Grounds for revision. (iii) Legal issues (iv) Prayers sought Affidavit in support of the application is a sworn evidence in writings, thus, caries weight in the application. As correctly raised by respondent counsel, Hamida Sheikh, affidavit in support of the chambers summons is sworn by a different person with the one mentioned in the chamber summons. Thus, application is not supported by affidavit. Applicant counsel argued that, it is a minor defects citing the case of Robert Edward Moringe @ Kadogoo Vs. The Republic Criminal application number 9 of 2005 to support her arguments. With due respect, it is not issue of typographical error as in the case Robert Edward Moringe (Supra). In the case at hand, it is serious errors that goes to the root of requirement of procedure and law. They are not simple technicality to be ignored. 4 Otherwise, there will be no need of having rules of procedure, that are there to guide systematic procedure to attain justice. Therefore, has to be complied with. None compliance of laid down procedure will create chaos to the consumers of justice. Having observed so, application is incompetent, thus, struck out. Having ordered so, there is no need of dealing with other objections as will be an academic exercise. Z.G.Muruke JUDGE 06/03/2020 Ruling delivered in the absence of both parties. Z.G.Iwuke JUDGE 06/03/2020 5