Tanzania Local Government Workers Union (TALGWU) vs M/S Tanzania Union of Government and Health Employees (TUGHE) and Another (Miscellaneous Civil Application No. 124 of 2011) [2013] TZCA 2458 (8 November 2013)

i . I IN THE HIGH COURT OF TANZANIA . AT ARUSHA MISCELLANEOUS CIVIL APPLICATION NO 124 OF 2011 (Originating from High Court Civil Case No 15 of 2008) TANZANIA LOCAL GOVERNMENT WORKERS UNION (TALGWU) ··~······························ APPLICANT VERSUS M/S TANZANIA UNION OF GOVERNMENT AND HEALTH EMPLOYEES (TUGHE) ..................... 1 ST RESPONDENT THE MERU DISTRICT COUNSEL ........................ 2No RESPONDENT RULING MWAIMU, J. This application has been brought at the instance of Tanzania Local Government Workers Union (TALGWU) seeking basically for enlargement of time upon which to enable the applicant to file an application for review · against the decree of the Court in Civil. Case No. 15 of 2008. The application has been supported by the affidavit of Sudi Suleiman Madega. The respondents responded to the application by filing a counter affidavit sworn by Mr. Charles Mngodo the first respondent's Arusha Regional 1

Secretary. Alongside the counter affid~vit, the respondents filed a notice of two preliminary objections thus:

1. The applicant who was not a party to Civil Case No. 15 of 2008 lacks locus standi to pursue this application and or a review application.
2. That the affidavit in support of the application for extension of time is irregular as it set out a case for stay of execution. On the 4 th day of June, 2013 the Court made an order, in presence of both parties for the disposal of the preliminary objections by way of written submissions. While the respondent managed to comply with the Court's order, the applicant defaulted. Failure to comply with the court order to file a written submission amounted to failure to appear in court on a hearing date. On those grounds I proceeded to write the ruling. Mr. Samba learned counsel for the respondents argued only ground one of the points of law that he has raised. He opted to abandon ground two. Submitting on ground one, · Mr. Samba simply argued that the applicant was not a party to Civil Case No. 15 of 2008 and therefore lacks stand to pursue the application at hand and the intended application for review. He said that the parties in the suit were Ms Tanzania Union of Government and Health Workers Employers (TUGHE) as the plaintiff and Meru District Council as the defendant. It was his firm view that the applicant, who was not a party to the suit, has no remedy under review but under revision. He cited the case of Halima Hassan Marealle versus Parastatal Sector Reform Commission and Another, Civil Application 2

No. 84 of 1999 (Unreported) (Dar es Salaam Registry). He prayed to the Court to dismiss the application with costs. I do agree with the respondent that in light of the case of Halima Hassan Marealle (supra), the applicant has no locus to file both the application for extension of time and the intended review. With respect, even if the applicant would have had locus standi to challenge the ex parte judgment, yet the application at hand has been supported by a defective affidavit as the jurat, though signed and stamped by the attesting officer it lacked a hand written name. There are two recent decisions referring to a number of decisions of the Court of Appeal on this legal point. These are M/S Bulk Distributors Ltd versus Happyness William Mo/lei, AR Civil Application No. 4 of 2008 (CA) (Unreported) (Arusha Registry) and Felix Francis Mkosamali versus Jamal M. Tamim, Civil Application No. 4 of 2012 (CA) (Unreported) (Tabora Registry). According to these cases failure by the attesting officer to prescribe his name on the jurat renders the affidavit incurably defective and the whole application incompetent. In the end· result the application is struck out with costs. SGD: M.P.M. Mwaimu JUDGE 22/07/2013 3

Ruling delivered on this 22 nd day of July, 2013 in the presence of Mr. Samba for the responded and in the absence of the applicant. SGD: M. P. M. Mwaimu JUDGE 22/07/2013 I hereby certify this to be a true copy of the original. DISTRICT REGISTRAR 4