20051017 TZCA Dar es Salaam

THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 36 OF 2004 In the Matter of Intended Appeal BETWEEN CHARLES MARWA WAMBURA ... APPLICANT AND NBC CONSOLIDATED HOLDING . ... RESPONDENT CORPORATION (Application for Extension of Time within which to Apply for Review of the Decision of the Court of Appeal of Tanzania at Dar es Saiaam) (Ramadhani J. A.; Lubuva J. A.; And Munuo, J. A.) dated the 16th day of April, 2003 in Civil Appeal No. 3 of 2002 RULING RAM AD HAN I, J .A.: The respondent terminated the employment of the applicant and despite the order of the Conciliation Board, he was not reinstata:L The matter came to court before KYANDO, J. who on 3/11/92 reiterated the order of reinstatement. That, too, was not obeyed. So, the applicant applied for execution before KYANDO, J. claiming over shs. 20 millions. During the hearing the respondent agreed to reinstate the applicant and the learned judge repeated his order of reinstatement on 13/02/93. By that time, it appears that, the applicant had already been reinstated since 1/02/93 but was, however, retrenched five months later, on 30/06/93. 2 The applicant sought a review of KYANDO, J's order of 3/11/92 and that was before MREMA, J. He asked for reliefs like statutory compensation, severance allowance, damages for wrongful dismissal/termination and interest. The learned judge said: From the entire proceedings of this matter I am now satisfied that there appears an apparent error on the face of the record that calls for review. It would appear that the learned judge, after making the order to enforce the Board's decision directing the employer to reinstate the employee (applicant), overlooked the mandatory provision of section 18 of Act No. 1 of 1975 that must be read together with the Security of Employment, Cap 574 - section 23 (1) (a). Section 18 of Act No. 1 of 1975, Labour Laws (Miscellaneous Amendments) amended the principal Act by adding section 40. MREMA, J. on 3/01/94 ordered that the applicant be paid "severa1ce allowance and other benefits relating to the applicant's employment". In his ruling, MREMA, J. did not mention anything about reinstatement of the applicant and his retrenchment. It would appear, therefore, that that information was not before him. On 9/9/95 the applicant obtained a decree of MREMA, J's order and he calculated the award to be shs. 50,037,607/=. On 30/07/96 the applicant got an ex parte attachment order of the respondent's vehicles. The respondent sought a review of that attachment order before MAPIGANO, J. and one of their grounds was that the applicant fraudulently inflated the amount adjudged by 3 MREMA, J. The review was dismissed on 3/10/97. The learned judge did not say that there was no fraud but that: It is also contended that Wambura has fraudulently inflated the amount which was adjudged to him by Mrema. J. I need hardly say that this is another new ground, and in actual fact it is inconsistent with what is asserted in the first ground in the memorandum of review. It is a matter which should have been ventilated on 30/7 /96 but as we have seen already, the Bank never did so. It would probably be vain endeavour to persuade me that the alleged fraud was not known to the Bank before then. The applicant went to court for the fourth time before IHEMA, J. seeking certain orders which are not necessary to reproduce. IHEMA, J., for the first time, disclosed in his ruling the fact that the applicant had been reinstated and later retrenched. The learned judge said: The applicant worked out the calculations to the tune of Tshs. 50,037,607.00 and thereafter filed this decretal amount in court for execution. It should be noted that the applicant took this course well after he had opted for reinstatement and indeed he had actually been reinstated and thereafter retrenched. Obviously this was not a course open to the applicant and he was not entitled to it after he had opted for reinstatement. It is correct to observe that it was clearly fraudulent for the applicant to come to court to execute an order which had been overtaken by events at the applicant's own volition and option. In addition it is inequitable to order specific performance as the provisions of Section 40A, S(A), (a) (I) and (ii) of Act No. 1 of 1975 ceased to apply to the applicant upon reinstatement. The record shows that the respondent/judgment debtor invoked the provisions of section 40A - 4 of the Security of Employment Act to 4 compensate the applicant as pointed out earlier in this ruling. This was on 30/4/93 ... It would follow therefore from these set of facts applicant was and is not entitled to the decretal amount of Tshs. 50,037,607/=. The applicant's appeal against that ruling of IHEMA, J. was dismissed by this Court on 16/04/03 when it upheld the learned judge. The applicant then wrote to the Honourable the Chief Justice on 11/06/03 seeking a 'review' of that judgment by the full bench of this Court. The Chief Justice on 24/07/03 told him that that course of action was misconceived. On 26/03/04 the applicant lodged this application for extension of time within which to apply for a review of the judgment of 16/04/03. He was represented by Mr. B. Luguwa, learned advocate, while the respondent retained Mr. George Kilindu, learned counsel. Mr. Luguwa argued that this Court in Tanzania Transcontinental, Civil Application No. 66 of 1996 held that the categories of cases in which this Court can exercise its powers of review are not closed. He argued that this application presents another category. He said that this Court, when it gave its judgment on 16/04/03, was not aware of the existence of the two conflicting decisions of the High Court: one by MAPIGANO, J. in which he did not find that there was fraud and the other by IHEMA, J. in which he found that there was fraud. Mr. Luguwa submitted that time should be enlarged to give this Court an 5 opportunity to consider the two conflicting decisions of the High Court. It is precisely because of this argument that I have endeavored to give a precise but detailed account of what transpired in the High Court and show the entangling background of this matter to give the lie to the applicant. Mr. Luguwa conceded that from the date the Chief Justice wrote to the applicant, 24/07 /03, to the time this application was filed, 26/03/04, eight months have elapsed and that that is inordinate delay. This Court has set a limitation for review as sixty days. However, he referred me to the explanation given by the applicant in paragraph 9(ii) of his affidavit that he was looking for legal advice following the reply he received from the Chief Justice and that he eventually got it from Mr. Emmanuel Kisusi, learned counsel. Admittedly, the applicant was within the sixty days when he wrote to the Chief Justice. However, after the Chief Justice's reply eight months elapsed before filing this application. Even if the applicant were given the benefit of doubt that he was looking for an advocate after he had parted with his former counsel but, as properly pointed out by Mr. Kilindu, it has not been shown when Mr. Kisusi gave the applicant this advice. I agree with Mr Kilindu that Mr. Kisusi had to 6 file an affidavit in this regard as this Court has held in Michael Sanga v. Robert Mwangionda, Civil Application No. 43 of 2003. I am satisfied that no sufficient cause has been established to persuade me to enlarge time apart from the fact that the application for review itself is without any colour of justification. The application is dismissed with costs. DATED at DAR ES SALAAM this lih day of October, 2005. A. S. L. RAMADHANI JUSTICE OF APPEAL. I certify that this is a true copy of the original. ~PE: . 0 ~ 4- J ~ .... ., ___., 4 ~-- ( S.A.N~RA ) SENIOR DEPUTY REGISTRAR