IN THE HIGH COURT OF TANZANIA
LABOUR DIVISION
AT PAR ES SALAAM
REVISION APPLICATION NO. 368 OF 2021
BETWEEN
JENNIFER MLONDEZI & 3 OTHERS.................................. .....APPLICANTS
VERSUS
EBRAHIM HAJI CHARITABLE HEALTH CENTRE................. RESPONDENT
(From the decision Commission for Mediation & Arbitration of DSM at KIN)
Dated IF''January 2015
in
Labour Dispute No. CMA/DSM/ILA/R.273/2014/1267
RULING
17th May 2022 - 18th May 2022
K. T. R, MTEULE, J.
This ruling in respect of Preliminary objection raised in this Revision
Application No. 368 of 2021 which was filed by the applicants
challenging the CMA award in Labour Dispute No.
CMA/DSM/ILA/R.273/2014/1267 by a way of revision. In response,
the Respondent raised three points of preliminary objections which
are:-
i) That the application is hopelessly time barred.
ii) The application is incurably defective for being supported by
incurably defective affidavit for contravening Rule 24 (3) of
the Labour Court Rules, GN. No. 106 of 2007.
i
Hi) The application is bad in law as its affidavit contravenes S.8
of the Notary Public and Commissioner for oath, (Cap 12 R.E
2019).
The hearing of the preliminary objections was done by a way of oral
submissions. The respondent's submission was done by Ms. Hawa
Tursia, Advocate from G.Y. Hassam & Company Advocate while the
applicant was represented by Mr. Andrew Chima from Jonas &
Associates Law Chambers.
Stating with the 1st point of objection, Ms. Hawa Turusia referred to
several applications which were filed by the Applicant but ending by
being struck out for being incompetent with a leave to refile. She
stated that the last application to be filed was Revision No. 297 of
2021 which was struck out on 8th September 2021 with no leave to
refile. According to Ms. this behaviour of having Applicant's
applications struck out and lastly with no leave to refile connotes that
the applicant ought to seek leave of the court or extension of time to
file any other application.
Ms. Hawa Turusia argued that once the application is struck out
without leave to refile, it is as good as no record at all present in
court. In this respect she is of the view that counting of time needs to
2
start from the date of the CMA award, which is 6th January 2015,
almost 6 years ago. She added that the only remedy for delay is for
the same to be dismissed as it was held in the case of Hashim
Madingo and 2 Others vs. Minister for Industry and Trade
and 2Others, Civil Appeal No. 27 of 2003 (unreported).
On second point of preliminary objection Ms. Hawa Turusia submitted
that the application is defective for being supported by a defective
affidavit contrary to Rule 24 (3) (a) of the Labour Court Rules, GN.
No. 106 of 106. She stated that at paragraph 2 (1) the applicants
stated the address of the advocates and not parties. In such
circumstances she is of the view that it is difficult to establish
whether the applicants are natural person or legal entity, for that
reason it renders the application being incompetent.
In her submissions, Ms. Turusia dropped the third point of
preliminary objection. She prayed for the application to be dismissed
with cost.
In response, Mr. Andrew Chima for the Applicant disputed the
assertion that the application is time barred. He submitted that the
applicant has been constantly knocking the doors of this Court
without a substantive hearing. She argued that the last application
3
which was Revision Application No. 297 of 2021 was dismissed on 8th
September 2021.
Mr. Andrew Chima argued that when a matter is struck out it does
not bar its further filing but it should be subject to the Law of
Limitation. He disputed the counting and added that counting of days
begins when the last application was withdrawn or struck out and not
from the date when the decision was made by the lower Court.
It was further submission by Mr. Chima that since the previous
application was struck out on 8th September 2021 and the present
application was filed on 27th September 2021, it means that there
was a lapse of 19 days from the date when the application was struck
out to the date of filing of this Application. In this respect According
to Mr. Chima, the application is within time as per Item 21 of the
Schedule of the Law of Limitation Act. He challenged the case cited
by the Respondent's Counsel asserting that it is distinguishable with
this case on the ground that in that Case, the applicant was given
opportunity of extension of 30 days, but he didn't file it within 30
days.
4
Regarding the second ground Mr. Andrew Chima submitted that the
missing of names in affidavit does not warrant the application to be
struck out while from the beginning the names of the parties are well
stated. For that reason, he is of the view that the paragraph is not
offensive and that the remedy available is to expunge the defective
paragraph and not to strike out the entire application.
The respondent's Counsel filed a rejoinder, I will consider the
contents in determining the application on merit.
Having considered the parties' submissions, the Court records, labour
laws applicable and practice, on the raised preliminary objection, two
issues need to be resolved. These issues are:-
i) Whether the application is incurably defective for being
supported by incurably defective affidavit contrary to Rule 24
(3) of the Labour Court Rules, GN. No. 106 of 2007.
ii) Whether the application is time barred.
I will start with the first issue as to whether the application is
incurably defective for having defective affidavit. According to the
applicant, the affidavit of the applicant contravenes Rule 24 (3) (a) of
the Labour Court Rules, GN. No. 106 of 2007. For better appreciation
5
of the matter, I reproduce hereunder the contents of Rule 24 (3) (a)
of GN, 106 of 2007. The Rule states:-
"24 (3) The application shall be supported by an affidavit, which
shall clearly and concisely set out:-
(a) the names, description and addresses of the parties;
(b) a statement of the material facts in a chronological
order, on which the application is based;
(c) a statement o f the legal issues that arise from the
material facts; and
(d) the reliefs sought."
What I gather from Rule 24 (3), an affidavit needs to give a thorough
description of the applicant. Paragraph 2.2.1 of the affidavit which is
labelled to have name, description and address of the applicant reads
as stated hereunder:-
"2. Names, Description and Address of the Parties:
2.1. That, we were employed by the Respondent in the year
1992 up to 2014 in the Medical Services and the Applicant’s
Address of services for purpose of this Application is in the care
of;
Jonas & Associates Law Chambers
Villa Stephen Building
6
Plot No. 568, Block 42
Mindu Street- Upanga
P.O. Box 80086, Dar Es Salaam
Email: [email protected]"
From the above quoted words, it is apparent that the names of the
Applicants are missing in that description. The names of the parties
should have been properly described including their physical address.
It is not an offence to have the address of their advocates as a postal
address for the purposes of service, but the name of the applicants
and their physical address are important for the purposes of having
an appropriate description required by the Rules. This is a fault which
renders the affidavit incurably defective. As such, the defective
affidavit make the entire application incompetent before the court.
Consequently, I sustain the Respondents point of preliminary
objection that the application is incurably defective for being
supported by incurably defective affidavit which contravenes Rule 24
(3) of the Labour Court Rules, GN. No. 106 of 2007.
Since the Court has already found the application to be incurably
defective, I find no need to labour on the remaining points of
7
objection as this incompetence of the application is sufficient to
dispose it off.
For the above reason, I hereby strike out this application for being
defective. It is so ordered.
Dated at Dar es Salaam this 18th day of May, 2022.
M
KATARINA REVOCATI MTEULE
JUDGE
18/05/2022
