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    Misc. Appl. No. 559 of 2016 National Bank of Commerce vs. Rabia Muro New

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    Misc. Appl. No. 559 of 2016 National Bank of Commerce vs. Rabia Muro New

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    Mick lee
    9 views7 pages

    Original Title

    MISC. APPL. NO. 559 OF 2016 NATIONAL BANK OF COMMERCE VS. RABIA MURO NEW

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    9 views7 pages

    Misc. Appl. No. 559 of 2016 National Bank of Commerce vs. Rabia Muro New

    Uploaded by

    Mick lee

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    © All Rights Reserved
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    IN THE HIGH COURT OF TANZANIA

    LABOUR DIVISION

    AT DAR ES SALAAM

    MISCELLANEOUS APPLICATION NO. 559 OF 2016

    NATIONAL BANK OF COMMERCE............APPLICANT


    VERSUS
    RABIA MURO.................. ................. RESPONDENT

    RULING
    Date of Last Order: 08/02/2018

    Date o f Ruling 04/05/2018

    L.L.Mashaka. J

    This is a ruling in respect of preliminary objection raised by the

    respondent Rabia Muro against the application for extension of time filed

    by the applicant National Bank of Commerce based on 2 points of law that:

    a) The application is Res Judicata after it was found out to be time


    barred.

    b) That the application is incompetent for lack o f improper citation


    o f the law.

    The hearing of the preliminary objection was by way of written

    submissions and noting from the submissions, the respondents was drawn

    and filed by Mr. Amani Abdallah, Advocate and those for the applicant was

    drawn and filed by Mr. Godfrey Tesha, Advocate.

    The respondent submitted on the second point of the preliminary

    objection that the application for extension of time was under non-citation

    of the provisions of the law to wit Rule 24(1 l)(b) of the Labour Court
    Rules, GN 106/2007 which renders the application incompetent before the

    Court. That it was undisputed that the application is for extension of time
    which is not specifically provided under the law thus it is one amongst the

    applications falling under Rule 24 (11) of the Rules. That failure to cite the

    same renders the application incompetent before the Court and the

    appropriate remedy is the same to be dismissed.

    The respondent referred this Court to the case of Airtel Tanzania

    Limited Vs. Earl Matthysen, Miscellaneous Application No. 220 of 2014,

    HCLD at Dar es Salaam (unreported) where the Court held that:-

    7/7 the circumstance, I find that the applicant failed to cite

    Rule 24 (ll)(b) o f the Labour Court Rules GN 106/2007 and


    this renders the application incompetent to move the Court
    to entertain and determine the application for extension o f
    tim e. The preliminary objection is found to have merit".

    Also the respondent referred this Court to the case of Edna


    Sylvester Ndile Vs. Standard Chartered Bank, Revision No. 166 of
    2013, HCLD at Dar es Salaam (unreported) where Hon. Wambura, J held

    that:-

    "An application for extension o f time is among those


    applications which fall under the category o f Rule 24(1 l)(b)
    o f the Labour Court Rules as they are not specifically

    provided under the rules. "

    In making reference to the Court of Appeal on proper citation of the

    enabling provisions of the law, the respondent cited the case of Project

    Manager Es Ko International Inc. Kigoma Vs. Vicent 3. Ndugumbi,


    Civil Appeal No. 22 of 2009, CAT at Tabora (unreported) His Lordship

    Rutakangwa JA held that:-

    "It is now settled law that wrong citation o f the law, sub
    section and or paragraphs o f the law or non-citation will not
    move the Court to do what it is asked to do and accordingly
    renders the application incompetent."

    That from their submissions the application was incompetent before


    the Court and capable of being dismissed.

    On the first point of preliminary objection, the respondent argued

    that Revision application No. 498 of 2015 was struck out on 14th November

    2016 by this Court after it was found to be time barred, and on 6th

    December 2016 the applicant filed the present application which is res

    judicata on the reason that the application has the same issue, same
    parties and it has been determined with the Court of competent jurisdiction

    hence this Court has no jurisdiction to entertain it.

    The respondent in substantiating that made reference to Section 9 of

    the Civil Procedure Act, Cap 33 R.E 2002 which provides that:-

    "No Court shall try any suit or issue in which matter directly
    and substantially in issue has been directly and substantially
    in issue in a former suit between the same parties or
    between parties under whom they or any o f claim litigating
    under the same title in a court competent to try such
    subsequent suit or the suit in which such issue has been
    subsequently raised and has been heard and finally decided

    by such court. "


    That from the provisions above, bars the trial of the suit or an issue

    in which the matter directly and substantially in issue has been adjudicated
    upon in a previous suit.

    Also the respondent, referred this Court to the case of Kamunye

    and Others Vs. The Pioneer General Assurance Society Ltd

    (1971)EA 263 where the principle of res judicata was enunciated that:-

    "the test whether or not a suit is barred by res judicata


    seems to me to be-is the plaintiff in the second suit trying to
    bring before the court, in another way and in the form o f a
    new cause o f actiona new cause o f action, a transaction
    which he has already put before a court o f competent
    jurisdiction in earlier proceedings and which has been
    adjudicated upon. I f so the plea o f res judicata applies not
    only to points upon which the first court was actually
    required to adjudicate but to every point which properly
    belonged to the subject o f litigation and which the parties,
    exercising reasonable diligence, might have brought forward
    at the time. "

    From that the respondent concluded that the decision above was too
    bar multiplicity of suits and guarantee finality of litigation. That it makes

    conclusive a final judgment between the same parties or their privies on

    the same issue by court of competent jurisdiction in the subject matter of

    the suit. Therefore prayed that the application was res judicata and the

    same be dismissed in its entirety.


    In reply to second point of preliminary objection on non-citation of

    the enabling provisions of the law, at the outset making reference to the

    case cited by the respondent of Airtel Tanzania Limited Vs. Earl

    Matthysen cited by the respondent, the applicant did concede with the

    first point of preliminary objection and prayed that the application be

    struck out and for purpose of protection of justice between parties. The

    applicant prayed that the Court gives them leave to refile the application

    within seven days. That prayer by the applicant was cemented by the

    attached case laws by the respondent in the written submission in support

    of the raised preliminary objection, that the same cases referred to by

    respondent were struck out with leave of filing another proper application.

    On the first point of preliminary objection, the applicant argued that

    in order for the matter to be res judicata, such an application or case must

    be the same, the parties must be the same and it has to be determined by

    a Court with competent jurisdiction.

    That the present case the application is not the same as Revision No.

    498 of 2015 which was to call for records, revise and set aside the

    Arbitrator's award dated 25th day of August 2015 while this current
    application is for extension of time and cannot be treated to be an

    application for revision.

    The applicant concluded that the first point of preliminary objection

    lacks merit but the second point has merit therefore the applicant prayed

    for the matter to be struck out with leave to file competent application

    within seven days.


    In rejoinder, the respondent submitted that they pray the application

    to be dismissed instead of being struck out and referred the Court to the
    case of Chief Executive Faidika Limited Vs. Lydia Pius, Revision No

    18 of 2013, HCLD at Dar es Salaam [unreported] Mipawa,J (as he then

    was) where the Court dismissed the application for being incompetent

    before the Court. That the applicant has concede the application to be

    defective as it offends the provisions of Rule 24(ll)(b) of the Labour Court

    Rule G.N. 106/2007. That giving leave to the applicant to file another

    application will amount to abuse of Court processes and destroy the aim

    that litigation should come to an end. The respondent further submitted

    that on 18th December 2015, Revision No. 498 of 2015 was struck out for

    being incompetent, and on 6th December 2016 the applicant filed this

    current application for extension of time with the same mistakes. That the

    application being the second one should be dismissed without giving them

    leave to file another application.

    Having read written submissions by both parties and gone through

    Court records and since it is undisputed that the applicant has concede to

    the second point of preliminary objection which suffices to bring this


    application to an end, this Court will not therefore labour on the first point

    of preliminary objection for it will not in any manner change the end result.

    The respondent cited the decision of this Court which struck out an

    application for extension of time in Misc. Application No. 220 of 2014

    between Airtel Tanzania Ltd Vs. Earl Matthysen (supra) and for

    certainty in decision making, this Court subscribes to the same and uphold

    the second point of preliminary objection on failure of the applicant to cite


    Rule 24(1 l)(b) of the Labour Court Rules, GN No. 106 of 2007 in this
    application.

    Since this is the first application for extension of time brought by the

    applicant, this Court doth order the same to be struck out thereto instead

    of being dismissed as prayed for by the respondent. This application for

    extension is struck out from the Court register.

    If the applicant still intends to pursue this matter, I grant leave to file

    a competent application for extension of time within 7 days from today.

    It is so ordered.

    JUDGE

    04/ 05/2018

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