20121010 TZHC Dar es Salaam

... IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 134 OF 2008 (Original Trade Dispute No. 145 of 2002 Industrial Court of Tanzania) CORAM: SHANGWA, J. MWARIJA, J. AND UTAMWA, J. BAKARI MWANYOKA . . . . . . . . . . . . . . . . . . . . . . APPELLANT Vs. TANZANIA ELECTRIC SUPPLY COMPANY LTD .. RESPONDENT Date of last order-14/4/2011 Date of Ruling- 10/10/2012 RULING .Shangwa, J. On the 15 th August, 2008 Bakari Mwanyoka filed an appeal against the award given by the Industrial Court of Tanzania Shayo PRM (AG. DC) as he then was in Trade Dispute No. 145 of 2002. On 22nd January, 2008, counsel for the Respondent Tanzania Electric Supply Co. Ltd filed a notice of 1 preliminary objection that the appeal is misconceived and that it was preferred prematurely. The preliminary objection was argued by way of written submissions. Counsel for the Respondent Company submitted that Bakari Mwanyoka (Appellant) is a former employee of the Respondent Company and that his services were terminated on 15 th January, 2002. He said that after terminating his services, Bakari Mwanyoka was aggrieved and filed Trade Dispute No. 145 of 2002 in the Industrial Court of Tanzania which gave judgment against him on 30 th May, 2003. He said that Bakari Mwanyoka was aggrieved by the judgment/ award of the said court and that upon being aggrieved he preferred an appeal to this court without applying for revision of the decision of a single Deputy Chairperson who was by then an Acting Deputy Chairperson. 2 Counsel for the Respondent contended that under S. 28 (1) of the Industrial Court of Tanzania Act Cap. 60 R.E. 2002, it is provided that any party who is aggrieved by the decision of the Industrial Court may apply for revision in the same court before preferring an appeal to this court if such party thinks that there has been an error material to the merits of the dispute involving injustice. He prayed for an order of having the appeal struck out with costs. Counsel for the Appellant, Mr. Taslima submitted inter-alia that S. 28 (1) of the Industrial Court of Tanzania Act Cap. 60 R.E. 2002 does not apply and that even if it applies it is not restrictive. He said that the Appellant decided to appeal to this court against the decision of the Industrial Court as a matter of right. He prayed that the preliminary objection be dismissed with costs. 3 Without beating about the bush, we find that counsel for the Respondent is quite right by arguing that the appeal is misconceived and that it is premature. We agree with him that before preferring an appeal to this court against the decision of a single chairperson, the Appellant has to exhaust first the procedure of revision which is available under Section 28 of the Industrial Court of Tanzania Act Cap. 60 R.E. 2002. The argument by counsel for the Appellant that section 28 of the Act is not restrictive is correct. However, although the said section is not restrictive, it is mandatory. In general, we agree with Mr. Taslima for the Appellant that an appeal against the decision of the Industrial Court is a right and that his client preferred his appeal to this court against the said decision as a matter of right. However, in this case, the law provides for revision before appeal. In a case like this one where the law provides for 4 revision before appeal, it is important that revision has to be conducted as a matter of procedure before an appeal is preferred. For this reason, we strike out this appeal but we order that each party should bear its own costs. A.Shangwa JUDGE 10/10/2012 A.G~warija, JUDGE 10/10/2012 JUDGE 10/10/2012 5 Delivered 1n court this 10 th day of October, 2012 in the presence of the Appellant's Legal Officer and in the absence of the Respondent. A.Shangwa JUDGE 10/10/2012 ( A.G~warija, JUDGE 10/10/2012 JUDGE 10/10/2012 6