Adnan Mehboob Sadiq and 2 Others vs Aloyce Felix Maro and Another (Civil Appeal No. 467 of 2022) [2024] TZCA 1118 (19 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI ( CORAM: MWARIJA. J.A.. KEREFU, 3.A. And KAIRO, J.A^ CIVIL APPEAL NO. 467 OF 2022 ADNAN MEHBOOB SADIQ, ADIL MEHBOOB SADIQ AND ABID MEHBOOB SADIQ (Legal Representatives o f the Late MEHBOOB SADIQ T/A, M/S MEHBOOB M. SADIQ & COMPANY) ........ APPELLANT VERSUS ALOYCE FELIX MARO.............................................................................. ... ....... 1 st MONICA TEMBA ........................................................... 2 nd RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Moshi) fMwenemoazi. J.^ dated the 29thday of March, 2022 in Labour Revision No. 02 of 2021 JUDGMENT OF THE COURT 2$h October & 19th November, 2024 KEREFU. J.A.: In this appeal, the appellant is faulting the decision of the High Court of Tanzania (Labour Division) in Labour Revision No. 02 of 2021. In that revision, the High Court (Mwenempazi, J.) quashed and set aside the decision of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/KLM/MOS/97/2020 (the Labour Dispute). In order to appreciate the context in which the labour dispute arose and later this appeal, we find it apposite to briefly provide the material facts of the matter as obtained from the record of appeal. It

goes thus; the respondents were employed by the appellant, who was also trading as M/S Mehboob M. Sadiq & Company for contracts of unspecified period, at the positions of an Assistant Accountant and Secretary in January, 1999 and October, 2010, respectively. It was the complaint of the respondents before the CMA that, on 7th August, 2020, their employment contracts were terminated by the appellant without valid reasons and they were not given notice of the said termination as required by the law. Thus, the respondents prayed to be paid their terminal benefits. On his side, the appellant admitted to have retrenched the respondents on 7th August, 2020 on operational requirements due to decrease of great number of clients and adverse economic situation resulted from his ill health. That, since he was working on tourism industry which was highly affected by COVID 19, his income dropped drastically. It was the further assertion by the appellant that, following the said economic situation, he was advised by his internal auditor to retrench some employees. That, based on the said advise, he consulted all employees, including the respondents and discussed with them on the intended retrenchment. Subsequently, on 3r d March, 2020 and 9th June, 2020, he officially notified the respondents and convened several

meetings with them on that issue. It was his assertion that, all retrenchment procedures were duly complied with and the respondents were dully paid their terminal benefits. As the process of mediation failed, the dispute was placed before the arbitrator who heard evidence from both parties and, in the end, he found that the termination of the respondents' employment contracts was fair both, in substance and procedure. Therefore, the CMA ordered the appellant to pay the respondents their terminal benefits at the tune of TZS 4,961,537.00 and TZS 2,976,922.00, respectively. Unsatisfied, on 8th January, 202, the respondents lodged a Labour Revision No. 02 of 2021 in the High Court challenging the CMA award. Having heard the parties, the learned High Court Judge found that, the appellant had valid reasons to terminate the employment contracts for the respondents but, he did not adhere to the prescribed procedures for retrenchment, thus were unlawfully terminated. Thus, the learned High Court Judge allowed the revision, quashed and set aside the CMA award and ordered the appellant to pay the respondents their terminal benefits under section 40 (1) (c) of the Employment and Labour Relations Act, Cap. 366.

Aggrieved, the appellant lodged the current appeal. In the memorandum of appeal, the appellant has preferred the following grounds: (1) That, the learned High Court Judge erred in law for failure to observe that the respondents' affidavit was incurably defective as it violated the mandatory provisions o f the law; (2) That, the learned High Court Judge erred in law for departing from the principles established by the statutes and precedents without giving reasons of his departure; (3) That, the learned High Court Judge erred in law for failure to observe that the notice of application was signed by the advocate contrary to the provisions o f the law; (4) That, the learned High Court Judge erred in law for failure to evaluate the evidence on record; (5) That, the learned High Court Judge erred in law for failure to observe that the notice o f application did not constitute the list o f documents to rely upon; and (6) That, the learned High Court Judge erred in law for failure to observe that the affidavit o f the respondents was sworn by the advocate for respondents instead o f the respondents themselves. When the appeal was placed before us for hearing, the appellant was represented by Mr. Emmanuel Anthony, learned counsel whereas the respondents, entered appearance in person. It is noteworthy that, all

parties had earlier on lodged their respective written submissions in support of and in opposition to the appeal. Submitting in support of the first and sixth grounds of appeal, Mr. Anthony argued that, the respondents' application for revision before the High Court was supported by a defective affidavit which was made contrary to the mandatory requirements of the law, thus, rendering it incompetent. To clarify his point, he referred us to pages 19 to 23 of the record of appeal and argued that, it is a requirement of the law that an affidavit should be sworn or affirmed by the applicant on matters that are on his own knowledge but in the instant appeal, the affidavit, in support of the revision application before the High Court, was sworn by the advocate for the respondents who erroneously stated in the verification clause that the information contained under paragraphs 2, 3, 4 and 11 were true to the best of his knowledge and belief, while it was clear that, he received the said information from the respondents. The learned counsel cited the case of Tanzania Breweries Limited v. Herman Bildad Minja, Civil Application No. 11 of 2019 [2020] TZCA 63 to support his argument. In addition, Mr. Anthony contended that the respondents' affidavit was made contrary to the mandatory requirement of Rule 24 (3), (c) and (d) of the Labour Court Rules, GN. No. 106 of 2007 (the Labour

Court Rules). He clarified that, in terms of the said provision an affidavit to support the labour application shall contain a statement of the legal issues arises from the material facts together with the reliefs sought. He argued that, the respondents' affidavit in support of their application before the High Court, does not contain the statement of the legal issues arising from the material facts nor the reliefs sought. It was his argument that, since the said provision is couched in mandatory terms, the said infraction had rendered the application before the High Court incompetent liable to be struck out. In the light of the said defects, Mr. Anthony urged us to strike out the said application for being accompanied by an incurably defective affidavit. To support his proposition, Mr. Anthony referred us to our previous decision in Michael Mahende Shell Exploration & Production (T) Limited, Civil Appeal No. 24 of 2021 [2024] TZCA 528, where we stated that, an affidavit in support of an application filed in Labour Court is governed by rule 24 (3) of the Labour Court Rules and not otherwise. In response to the submissions made by Mr. Anthony in respect of the first and sixth grounds of appeal, the respondents argued briefly that, their affidavit filed before the High Court in support of their application complied with the requirements stated under rule 24 (3), (c) and (d) of the Labour Court Rules and therefore, the same is competent.

Having considered the submissions advanced by the parties on the first and sixth grounds of appeal, the issue for our determination is whether or not the respondents' affidavit filed in the High Court in support of the application for revision complied with the mandatory requirements stipulated under rule 24 (3) (c) and (d) of the Labour Court Rules. There is no dispute that an affidavit in support of application filed in the Labour Court is governed by rule 24 (3) (c) and (d) of the Labour Court Rules. The said rule states as follows: "24-(i) Any application shall be made on notice to ail persons who have an interest in the application; (2) NA (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 of the legal issues that arise from the material facts; and

(d) the reliefs sought" In the light of the above position of the law, and having scrutinized the contents of the impugned affidavit, we agree with the submission made by Mr. Anthony that, indeed, the respondents' affidavit in support of their labour revision before the High Court was crafted contrary to the mandatory requirements of the above reproduced rule. In the case of Michael Mahende Shell Exploration & Production (T) Limited (supra) cited to us by Mr. Anthony, when we considered the issue raised on the format of an affidavit in support of an application filed in the Labour Court, we stated that: It is dear that, an affidavit in support of an application filed in the Labour Court is distinct from that which is made under 0. XIX r. 3 (1) of the CPC requiring a deponent to state matters of facts only, which facts must be from his own knowledge. Now, in the instant appeal, the respondents7affidavit in support of their labour application before the High Court was made contrary to the mandatory requirements stipulated under rule 24 (3) (c) and (d) of the Labour Court Rules. Such contravention had rendered the entire proceedings a nullity. As such, we find the first ground of appeal to have merit.

In the result, we have no option, other than to nullify the proceedings before the High Court, quash its decision and the subsequent orders. Since the above finding disposes of the appeal, we see no compelling reasons to consider the remaining grounds of appeal raised by the appellant. Consequently, we allow the appeal, set aside the decision of the High Court and restore that of the CMA. Considering the circumstances of this appeal, we make no order as to costs. DATED at DAR ES SALAAM this 18th day of November, 2024. The Judgment delivered this 19th day of November, 2024 by video conference from High Court Moshi, in the presence of Mr. Emmanuel Anthony, learned counsel for the Appellants and Mr. Aloyce Felix Maro and Ms. Monica Temba, 1s t and 2n d Respondents respectively is hereby A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL certif £opy of the original. \£\ J. J. KAMALA 1 / g jl DEPUTY REGISTRAR £// COURT OF APPEAL