CIVIL APPEAL NO 207 OF 2021 BANK OF TANZANIA V ZUHURA H MBULU 2

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MUGASHA. J.A.. LEVIRA. J.A. And MAKUNGU. J.A.^ CIVIL APPEAL NO. 207 OF 2021 BANK OF TANZANIA............... .................................. ............... APPELLANT VERSUS ZUHURA H. M BULU......................... ..................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Labour Division) at Arusha) (Mwenempazi. J.^ dated the 13th day of November, 2020 in Revision No. 47 of 2016 JUDGMENT OF THE COURT 9th & 11thJuly, 2024 LEVIRA. 3.A.: This appeal is against the Ruling and Drawn Order of the High Court of Tanzania (Labour Division) at Arusha in Revision No. 47 of 2016. In that Revision, the appellant sought orders of the High Court having revised two decisions of the Commission for Mediation and Arbitration at Arusha (the CMA); to wit, the restoration order in Industrial Dispute No. CMA/ARS/ARB/75/2013 of 13/01 2015 and award in Employment Dispute No. CMA/ARS/ARB/01/2013 of 20/06/2016. It is on record that the respondent was employed by the appellant on 01/08/1984. However, she was terminated from employment on 07/09/2012 on allegation of causing loss of TZS. 237,514,325.00. She was aggrieved by the termination claiming that it was unfair both, procedurally and substantively. Therefore, she referred her matter to the CMA which eventually, was dismissed for nonappearance. However, she managed to restore it and the matter proceeded on merit between the parties herein and the respondent emerged victorious. The appellant was ordered to pay her the sum of TZS. 58,747,120.00 on or not later than 15/07/2016. Aggrieved by both, the restoration order and the award, the appellant filed Revision before the High Court which was eventually dismissed for being time barred; hence, the present appeal. The appellant has presented two grounds of appeal in the memorandum of appeal claiming as follows: 1. That the court erred in law and fact by ruling that the Application for Revision by the Appellant was time barred. 2. That the court erred in law and fact for failure to determine the Application for Revision on merit taking into account the fact that: i. The Commission for Mediation and Arbitration did not have jurisdiction to set aside the dismissal order dated 28th February, 2014. 2 ii. The Award by the Commission for Mediation and Arbitration was illegally procured. At the hearing of the appeal, the appellant was represented by Mr. Francis Rogers, learned Principal State Attorney assisted by Mr. Deodathi Mushi and Ms. Adelaide Masaua, both learned Senior State Attorneys, whereas the respondent had the services of Mr. Shedrack Boniface Mofulu, learned advocate. In his submission in support of the appeal, Mr. Rogers abandoned the second ground and submitted in respect of the first ground only. He argued that, the High Court erred in law and fact by ruling that the Application for Revision by the appellant was time barred without considering that the impugned award of the CMA was delivered on 20/06/2016 and the Revision was filed on 4/07/2016, within two weeks from the date of that award. He pointed out that, section 91 of the Employment and Labour Relations Act, Cap. 366 R.E. 2019 (the ELRA) provides for a six weeks period from the date when the award was served on an aggrieved party within which he / she can apply to the Labour Court for the award to be revised. Thus, he was firm that the applicant's Revision before the High Court was filed within time and thus the dismissal order was unjustified. 3 Upon being probed by the Court to submit in respect of the propriety of the dismissal order by the High Court, Mr. Rogers submitted that, the application was omnibus as observed right from the pleadings that it intended to challenge two decisions of the CMA. The first decision was a restoration order of 13/01/2015 which restored the respondent's initial application before the CMA which was dismissed on 28/02/2014 for non­ appearance. After the restoration, the application was heard on merit and the outcome of it was the award of the CMA of 20/06/2016 which was challenged before the High Court vide Revision Application No. 47 of 2016. It was further argued by Mr. Rogers that, since the restoration order was an interlocutory one, the appellant could not challenge it immediately, she had to wait until the award is delivered. As such, he said, that was the reason why the application before the High Court combined both decisions of the CMA. However, he was quick to state that, it was not proper for the appellant to combine two complaints in a single application making it omnibus. According to him, although the High Court Judge found that he could determine the application the way it was having relied on the decision of Mapigano, J. (as he then was) in Tanzania Knitwear Ltd v. Shamshu Esmail [1989] T.L.R 48, the combination of those applications was not proper as the first complaint on restoration order was time barred, while the other was well within time making the entire application incompetent before the court. In the circumstances, he said, it was not proper for the Judge to dismiss the appellant's application for revision; instead, he ought to have struck it out for being incompetent. He implored us to invoke section 4 (2) of the Appellate Jurisdiction Act Cap 141 R.E. 2019 (the AJA) to quash the decision of the High Court and in lieu thereof, substitute struck out order for dismissal order. On his part, Mr. Mofulu right from the beginning, challenged the appellant's grounds of appeal that they were not crafted in a manner that reflect what transpired before the High Court. He supported the decision of the High Court to the extent that, the parties were heard in both applications by way of written submissions and the decision was made thereof. Therefore, he argued, the High Court was justified to make a finding that the first application faulting restoration order was time barred. He unveiled that, since the two applications were combined (omnibus) though incompatible, the learned Judge could not make separate decisions having found one of them time barred. As a result, she dismissed the application. 5 He responded to our question regarding the propriety of the dismissal order to the effect that, since the omnibus application before the High Court was improper hence, incompetent due to the fact that one was filed out of time and the other within time, this fact constrained the High Court from deciding the application on merit. Therefore, he added, she ought to have stuck it out for being incompetent instead of dismissing it. However, Mr. Mofulu was reluctant to propose the way forward on account that, the appellant's ground of appeal does not challenge the dismissal order per se as alluded to above. In rejoinder, Mr. Rogers submitted that the first ground of appeal challenges the dismissal order on account that the application was not time barred. However, he admitted that the said ground was problematic as it challenged two decisions of the CMA. He added that, the dismissal order by the High Court was not proper because the application was incompetent it being omnibus. Finally, he reiterated earlier prayer inviting us to invoke revisional jurisdiction to dispose the matter. We have keenly considered the submissions by the counsel for the parties, grounds of appeal and the entire record. In disposing this appeal, we shall be guided by the issued we raised suo motuas to whether it was proper for the High Court to dismiss the appellant's application for revision 6 on account that it was time barred. It is settled principle that an incompetent matter cannot be dismissed. The logic behind is that if the matter is incompetent, then the court lacks jurisdiction to entertain it on merit; instead, that matter is struck out to give an interested party an option to revert back properly to the same court to pursue the matter in question. As such, striking out the matter does not resolve dispute between the parties; unlike when the matter is dismissed, as in the present, an aggrieved party has no room to go back to the same court that dismissed it to have the matter determined on merits. When the matter is dismissed, it presupposes that the same has been determined on merit. In Ngoni-Matengo Co-Operative Marketing Union Ltd v. Alimahomed Osman [1959] 1 EA 577 (CAC), it was stated as follows: "... when the appeal came before this court, it was incompetent for lack o f necessary decree, ...for lack o f necessary order, this court, accordingly, had no jurisdiction to entertain it, .... What this court ought strictly to have done in each case was to \strike out' the appeal as being incompetent, rather than to have 1 dismissed' it; for the latter phrase implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable o f being disposed of. But it is the substance o f the matter 7 that must be looked at, rather than the word used." Applying the above principle in the present case, we are of the considered view that, given the omnibus application, it is impossible to have a combination of more than one prayer in a chamber summons but each case must be decided on the basis of own peculiar facts. See: Mic Tanzania Limited v. Minister for Labour and Youth Development & Another, Civil Appeal No. 103 of 2004 (unreported). Since the High Court found that it was impracticable to determine the omnibus application not properly before the court on merits, we find the dismissal order wanting. See: See: Yahya Athumani Kissesa v. Hadija Omari Athumani & 2 Others, Civil Appeal No. 105 of 2014 (unreported). In the circumstances, the proper course was to strike out the incompetent omnibus application so as to enable the appellant if it so wished to revert to the same court with a proper application. Thus, with the dismissal, the only available remedy is to appeal in order to challenge it. Therefore, the issue we raised has been answered in the negative. Consequently, in exercise of our revisional powers under section 4 (2) of the Appellate Jurisdiction Act, Cap 141 R. E. 2019, we quash and set aside the dismissal order by the High Court in Revision No. 47 of 2016 8 and, in lieu thereof, substitute it with an order striking out the application. Since this is a labour matter, we make no order as to costs. DATED at ARUSHA this 11th day of July, 2024. S. E. A. MUGASHA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL The Judgment delivered this 11th day of July, 2024 in the presence of Ms. Christabella Madembwe, learned State Attorney for the Appellant and Mr. Peter Nyamwero, holding brief for Mr. Shadrack Mofulu, learned counsel for the Respondent is hereby certified as a true copy of the 9