20080610 TZHC Dar es Salaam

:' \ I\ IN THE HIGH"COURT OF TANZANIA , t, AT DAR ES SALAAM I; ',, ' I~ , CIVIL APPEAil,, NO. 185 OF 2002 Ii ~ J BONIFACE SIGAYE & 72 OTHERS ............... APPLICANTS (' : VERSUS ,,· i, ' ~ 'i1 . . TANZANIA REVENUE AUTHORITY ............. RESPONDENT '. \ '1 .,I Date of last Order: 1 7 /04/2.~08 Date of Ruling : 10/06/200!{ ·, \ ' t RUt,ING MLAY, J. ' '\. This. ruling, is on an '. 1pplication for review of the judgment of this Court deliver~d on 27/6/2006 in Civil Appeal ' tiI No. 185/02. In that judgment, this Court dismissed an appeal by BONIFACE SI GAYE and 72 d1THERS from the ruling of t)le Resident Magistrates Court of ·:la. r es Salaam in Employment :D. Cause No. 235 OF 1997. The case in the Magistr1tes .I Court was, based on a ' " purported report made by a Lab01hr Officer, under Section 132 of the Employment Ordinance (;:~p 366. The ~eport to the ·, I Magistrate was made by one' 'iMrs. Uiso, Ac,ting Labour t ' ! ,\ \ \ \ t I I Commissioner. This Court dismissed the appeal, on grounds that the report made to the Magistrate was not a report by a. Labour Officer. The appellant's being aggrieved by that decision filed a "MEMORANDUM of REVlEW under Section 78 (a) of the Civil I Procedure Code, 1966. · In the memorandum the applicant have applied for review on the following grounds: ' "1. That his L~rdship judge erred in law to strike out the matter instead of ordering the report to magistrate to be signed by the Labour Officer and remit the same for retrial m the RMs Court if the ' appellants wis,hes to do so for the interest ofjustice',. Both parties to the application have filed written submissions. The applicants having quoted the provisions of Order XVLII Rule 1, have argued that, "their main ground for this Application for review is that there is an error apparent on the face of the record on the judgment intended to be reviewed". They submitted that "the error in 2 : I I ,1 ' signing the Report to the l'r'Iµ.g.istr-ate had nothing to do with the Appellants". They Iargued that, exercising their statutory right the appellant~: reported the matter to the I [1 Labour Officer who was supposed to repott to the magistrate '. I . but unfortunately it transpired {hat the report was sigrted by a , I ( pe•;son who is not empowered\ ty law to sign the same. They complained that they have be¢n denied their constitutional i 1 1 right of being heard for no fault 6n their part. 1. ' 1 Ii They referred to Civil :Appeal No. 6 of 2003 · S. S ~ -- ----·-----··-···- --------_:____:,...;...· I . ---··-- ------- • ..--· Makorongo Vs Severino Consig{lio (unreporteq) in which the ,._____________ ' ~ . - ···----·----------J Court of Appeal stated that a mistake committed by people in I I authority, cannot be imputed ori \the parties or an advocate. They further quoted the prq)Visions of Article 13 (6) (a) of f the Constitution of the United Republic of Tanzania and ; 11 contended that the judgment t~ ipe reviewed has denied them their constitutional right under t1at article . . I The Respondents have argu~d that in the eyes of the law a report submitted to the MagistJate which was not sgined by ' \ the Labour Officer is not a repo1t by the Labour Officer and therefore there was no report befbre the Court and this court cannot order something which•. l'as not in existence to be i ! referred back for signature. On the case cited by the r: Applicants, Civil Appeal No. 6~2005, S.S. Makongoro Vs I 3 .. Severino Consigilio, the Respondents advocate argl..1ed that, 1n that case the party had lodged Notice of Appeal and a Memorandum of Appeal, but the Registrar had not endorsed the relevant documents lodged. He argued that the case is distinguishable from the present case in which there was no report submitted to the court since the report was not signed by a Labour Officer. Reverting to the prov1s10ns of Order XLII of the Civil Procedure Code, 1966 which govern review, the Respondents advocate submitted that the Applicants have totally failed to avail any of the grounds which would warrant for an the application for review. The advocate invited this Court to invoke the provisions of Order XLI I Rule 4 ( 1) of the Civil Procedure Code which states: "When it appears to the Court that there is no sufficient ground for a review, it shall reject the application". The Applicants filed a spirited reply to the Respondents submissions. They in effect reiterated their argument that after the Court found that the report was not signed by the Labour Officer it ought to have ordered the defect be rectified and remitted to the Resident Magistrates Court for trial. They also repeated their complaint of denial of denial of their 4 I I I 1 constitu tionaJ right to be he~rd under article 13 (b) of the Constitution. On the applicatio'n of Order XVLII Rule 1, they I emphasised that the relevant· part is that a review can be 1 sought: "on account of sbme mistake or error ' I aparent on the face bf the record, or for I any other sufficient reason". Having given due consideration to the application for review and the well argued submissions filed by both parties, I I have no hesitation to find I that the applicants have I misconceived the scope of the prowes of review of the court, I under Order XLII Rule 1. I I I The said Order XLII Rule 1 provides as follows: 1 I 1- (1) Any person considering, himself aggrieued- a) by a decree or order from I which an appeal is allowed, I but from which no appeal has been preferred; an I b) by a decree or order from u:hich no appeal is allowed, I and who, from the discovery of new and important matter or evidence which,'. after the exercise of due diligence, was no within his· knowledge or could not be I produced by him the time the ·decree was passed or order I made, or on account of 1some mistake or error apparent on the face of th~ record, or for any other 5 . §Yfficient reasoh, desires to obtain a review of _the decree passed or ◊rder made ago.inst him, may apply For a ' 1 review of judgmen: t lo the court which passed the decree or made the order". There are three ~rounds on which an application for ' review may be made. Tpe first ground is, "from the discovery of new and importa~~,, matter or evidence". ,I !! ' The second groun~ is, "on account of some mistake or i error apparent on the face of the record'' and the third II ground, is "for any otn;er sufficient reason". ,, '! 1 In the applicants tvlemorandum of Review, the applicants 'i have alleged "that his Lordship erred in law to struck out I (sic) the matter instead of ordering the report to Magistrate to be sign,kd by the labour officer and remit 'I I the same for retrial.~.1·...... ". The application is therefore not I based on the first groulnd which is upon "discovery of new i and important matter or evidence". The applicants have argued that, the applic!tion is based on the second ground, which is, "on account bf some mistake or error apparent i ' on the face of the re~ord". With respect, an error in law, i which is based or an a'rguable point of law, is not an error 1 apparent on the face of the record. If the applicants have to go ,,, .i into the decision of the. Court of Appeal in S.S. Makongoro Vs /, • I I ti 6 II, I I II I·I :] I I ! ' i !I . , 11 Severino Consigilio and tn th¢ ·provisions of Article 13 (b) of the . ' '---· l Constitution of the United Republic, to establish the legal error committed by this Court, thi~ cannot be an error apparent on I the face of record. This is an· appealable matter on legal point. 1 :( ,, This court having made fit decision that the report made I by the Acting Labour Co_mmi?:sioner was not a report made by the Labour Officer and was· therefore incompetent, it .cannot I',-. again look at its own decision iand say the report can be made competent by being signed bf the Labour Officer. The issue . ' was not even that the repott was "signed'' by the Acting Ii Labour Commissioner instead. of a Labour Officer, but that, contrary to the provisions of. $ection 132 of the Employment Ordinance Cap 366, it is the Aqting Labour Commissioner who 1, I informed the magistrate or made a report to the magistrate, instead of the Labour Officer. ~e that as· it may, if that error ir '1 can be cured by sending the report back to the Labour Officer, 1\ it is not a matter which is apparent on the fact of record, but a ' legal argument which can be m';,ade before an appellate Court. I It cannot therefore be a ground• of ·I review. . !1,, i \ The applicants have not argued ,, or demonstrated that there is "any other sufficient cause" for this court to review \'1 its judgment and there being nd sufficient grounds shown for I review, this application is rejecteaI with costs. i j \!, If the Applicants wisd to chaiienge the judgment on a., I point of law, they have a rigrt to appeal to the Court of Appeal of Tanzania against that juqgment and if they think they have been denied a constitutional right under Article 13 (6), the I avenue 1s to institute pro~eedings in accordance with the prov1s1ons of the Basic Rights And Duties Enforcement Act I Cap 3 R.E 2002. In the final analysis and for the reasons given above, this application is rejected with costs. I J~~ J.,I.~/ JUDGE. I Delivered in the presenjce of Ms, Mwantumu Legal Officer of the Respondent and Mrs. DARUS BAKARI and JUMA KABATI two of the represented 72 applicants, this 10 th day of June 2008 . . ½ J~ I ~UDGE I 10/96/2008. Words: 1,151 8