APPLICATION FOR REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA APPLICATION FOR REVISION NO. 62 OF 2022 (Arising from High Court of united Republic of Tanzania Lobour Division Application for execution No. 96/2021 Originating from Employment dispute No. CMA/ARS/ARB/62/2015 at the Commission for Mediation and Arbitration Arusha) ELINDE JOSEPH MAFIE (Suing as administrator of the estate of late Abraham Obedi Kaaya) ............................ 1st APPLICANT PULTCHERIA PAUL MMASI........................................................ 2nd APLICANT JOYCE JOHN FRANK................................................................... 3rdAPPLICANT VERSUS KIBO POUTRY PRODUCT LTD...................................................... RESPONDENT JUDGMENT 22/05/2024 & 19/06/2024 NDUMBARO, J The applicant dissatisfied with decision of Hon J.J. Kamala Deputy Registrar (DR) filed this application for revision on the following grounds; i 1. That honorable Deputy Registrar erred in law for holding execution application No. 96 Of 2020 had no merit for being res judicata of the execution No. 70 disregarding execution No. 70 was struck out. 2. That honorable Deputy Registrar erred in law for holding execution application No. 119 of 2015 were res judicata of the execution No. 70 disregarding execution No. 70 was struck out. 3. Whether honorable Deputy Registrar was legally justified to hold a struck-out matter as being finally determined and so res judicata to the subsequent proceedings. Before involving into submission of parties it is worthy to get into brief background giving rise to the present application. The applicant herein sued the respondent Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ARS/ARB/62/2015 for unfair termination of employment and CMA awarded the applicant total of TZS 8,111,132 as compensation for unfair termination. Applicants filed execution before the Labour Court Execution No. 119 of 2015. The matter was before Hon Deputy Registrar Kahinda, the counsel for applicant George Njooka made a prayer to withdraw the matter with leave to refile due to some defect in execution form, the prayer was granted. Thereafter the matter with the same execution Number 119 was filled before Nkwabi DR and the same was dismissed on 4/08/2020 for want of prosecution as both parties did not appear before the court. The applicant filed fresh application No. 70 of 2021 before Massam Deputy Registrar for execution, the respondent raised PO that the matter is res judicata on the reasons that execution 119 of 2015. The PO was sustained and the application for execution No. 70 of 2021 was struck out on 25 June 2021. Thereafter the matter was filed again with application No.96 of 2021 before J.J. KAMARA DR and it was dismissed for want of merit on 29 March 2022. When the matter was called on for hearing before me, the parties prayed to dispose the matter by way of written submission, the prayer was granted. The applicant enjoyed legal services from Advocate Elibariki Maeda and the respondent was under the representation of the Advocate Mary Kway. The above said I wish to start by determining the issue which was put before this court by the applicant's counsel. At fore most the applicants prayed to adopt his joint affidavit to form part of the submission. In the first ground the applicants contended that, the learned Deputy Registrar erred in law to entertain preliminary objection raised by 3 respondent to the effect that execution No. 96 of 2021 was res judicata of execution No. 70 of 2020. Argued for the res judicata to stand a part should proof that there was decided case before the court with the same parties, same subject matter and same issue and res Judicata can not be raised as Preliminary Objection on point of law. In support of his argument cited a case of Victor Raphael Luvena Vs Magreth Ephrahim Kawa & 2 others Civil Appeal No. 25A of 2021 CAT DSM un reported page 9, that Res Judicata may not qualify to be considered as pure point of law because require proof. The applicant argued execution 70 of 2020 was not finally determined to make execution No. 96 of 2021 Res Judicata, the execution No. 70 of 2020 was struct out, whereby the remedy by the applicant was to bring fresh execution if so wishes. The matter can be dismissed if it is heard and determined on merit. In support of argument cited a case of Khofu Mlelwa Vs Commissioner General T.R.A & another Civil Appeal No. 229/2019 CAT DSM unreported. Further argued basing on cited authority the Hon DR was wrong to dismiss execution No. 96 of 2021 for want of merit. 4 On the second ground the applicant faulted that, in the execution proceedings shows that the applicant counsel advocate Njooka made prayer to withdraw application 119 of 2015 with leave to refile, whereby the prayer was granted by court as prayed. Thereafter the execution No. 70 of 2020 and 96 of 2021 both was not determined on merit. The applicant claiming that the executing master on execution No. 70 strucked out the application without considering any evidence of the decree holder thereto. Argued the respondent counsel mislead the court to the effect that, the matter was not strucked off rather strucked out. Therefore, it is applicant prayer, the application be allowed by this Court, the decision in execution No. 96 of 2021 and 70 of 2020 be quashed and set aside and order execution of CMA award No. CMA/ARS/ARB/62/2015 to proceed with execution on merit. In reply, Ms Mary Kway at first draw attention of this court that the court is not properly moved as rule 56 of Labour Court Rules GN 106 of 2007, is on extension of time and condonation, while this application is for revision and appropriate provision is Rule 24. The respondent raised Preliminary Objection that this court lack jurisdiction because deputy registrar is now part of High court Labour division as per section 50(2) (b) of Labour institutions Act Cap 300 RE 2019 as amended by section 67 Miscellaneous Amendments Act No. 3 of 2020, argued before amendment of 2020, the Deputy Registrar were not part of High Court, but after this amendment was part. Went on submitting that, revision of the decision of registrar lies to the Court of Appeal. In support of submission cited a case of Teddy Sprian Malya Vs EFC Tanzania MFC Limited Misc. Labour Application No. 409 of 2022 High Court Labour Division Dar es Salaam that, decision of Deputy Registrar shall continue to be Decision of High Court. Faulted that, the High court cannot enjoy the concurrent jurisdiction with Court of appeal. In support of his argument cited a case of Iron and Steel Limited Vs Martin Kumalija and 117 others High Court Labour Division Dar es salaam unreported. He considered that this honourable Court has no jurisdiction to revise its own decision. Therefore, pray this application be dismissed for want of jurisdiction. In rejoinder on the applicant maintained his submission in chief, further argued, section 89(2) of Employment and Labour Relations Act was 6 to give award issued by CMA the same legal force as it was issued by court, when award is executed by Deputy Registrar the execution order becomes decision of High Court just like execution of Court Judgment hence un revisable by the same court. However, deputy registrar does not make new order rather execute what was awarded by CMA. Argued further that, the cases cited by respondent are distinguishable, the jurisdiction of honorable court to revise the decision of Registrar was not an issue. As the practice demands that, whenever a party raises a preliminary objection on point of law, the main suit halts and the court proceeds with determination of the objection first as I hereunder do;- Considering submission by parties on the first point raised by respondent that this court has no jurisdiction to entertain this matter, the PO was raised by applicant before determining this application, it was determined on merit by by Judge Kamuzora before this matter was assigned to me after her being transfer to another duty station, the PO was found with no merit. I consider the PO raised is functus officio. The respondent has raised it in his counter affidavit and it was determined on merit. It is my view that despite the fact the matter was decided on merit and my hand tangled, the rules o f practice, prudence and professional conduct do restrict I. ought to respect the code o f conduct unless the decision is based on unprofessionalism and it is against the overriding objective. From the above principle of law, I am inclined to hold that this court is functus officio on the reason that the said objection was previous raised by respondent and determined in merit by Judge Kamuzora in the ruling delivered on 23 November 2023 on preliminary objection raised by respondent in this case and same was found to be devoid of merit. The position is supported by the Court of Appeal decision of Mohamed Enterprises (T) Limited Vs Masoud Mohamed Nasser Civil Application No. 33 Of 2012 CAT Bwana. JA Luanda, J. A. and Oriyo, J.A that once matter is decided become fuctus officio on the same court. Guided by the above-cited authority, I am enjoined to determine this ground is devoid of merit. In regard to the ground that the court was not properly moved as rule 56 of Labour Court Rules GN 106 of 2007 is on extension of time and condonation, while this application is for revision and appropriate provision is Rule 24. Guided with number of decisions of Court of Appeal that wrong citation of law is not fatal, among others the decision of Bin Kuleb Transport Company Limited Vs Registrar of Titles, Commissioner for Lands, Attorney General and Cargo Stars Limited Civil Application No. 522/17 of 2020 by Lila J. A, Mwandambo. J.A, And Mashaka, J.A. on page 7, whereby the applicant moved the court with wrong provision of law to exercise revisional power with view to quash impugned ruling. The error was disregarded by the Court and proceeded to determine the application on merit. Now turning to the first ground of revision, as to whether application was res judicata, Section 9 of Civil Procedure Code Cap 33 is clear that for the res judicata to stand a part should proof that there was a case involving same parties ,same title and same issue and matter been heard on its finality as Here in under: - Section 9 "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any o f them claim litigating under the same title in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court". In our case the matter involves same parties, same title same issue, however it was not determined on merit.in support of argument the case of Kapapa Kumpindi Vs the Plant Manager, Tanzania Breweries LTD Civil Appeal No. 32 OF 2010 CAT by Rutakangwa J.A, Kileo J.A. and Oriyo J.A. at page 10 has this to say, once suit is strucked out it remain un decided therefore res judicata cannot apply. Further in the case of Bin Kuleb Transport Company Limited Vs Registrar of Titles, Commissioner For Lands, Attorney General and Cargo Stars Limited Civil Application No. 522/17 Of 2020 by Lila J. A, Mwandambo. J. A, And Mashaka, J.A. on page 7, The Court declined to entertain the second application on the sole ground that it had already granted a similar order in the first 10 application; held that it was functus officio and the principle of res judicata was wrongly invoked. I also agree with the argument made by the applicant that, res Judicata cannot be raised on Preliminary Objection on point of law because it may need proof the argument was supported by a case of Victor Raphael Luvena Vs Magreth Ephrahim Kawa & 2 others Civil Appeal No. 25A of 2021 CAT DSM un reported page 9. Connecting dot with the application at hand, the execution 119 of 2020 was trucked out for want of appearance. That both parties did not appear and the honorable DR stucked out the matter. The matter was not heard on merit. It is my view that, it was not proper thereafter to decide that, the execution application No. 70 of 2020 res Judicata because it was not determined on merit. Going through court file, the first order of Hon Kahinda DR at that time was to allow amending the application as prayed by the counsel for applicant, the applicant filed execution before Nkwabi DR and the same was dismissed on 4/08/2020 for want of prosecution as both parties did not appear before the court. It is observed that, the applicant instead of ii invoking prayer to restore application under Rule 36(1) of Labour Court Rules 2007 or invoke Rule 38 (2) of Labour Court Rules 2007 to set aside the order and institute fresh application, it was not done so. That is where problem started. It is my view that justice must be attained, the deputy registrar decision was decided without merit, and the applicant was not heard. Considering that the respondent did not object on the decision of CMA, that is, no appeal was preferred on the same. The objection raised by respondent on illegalities of the application, is overruled basing the principle of overriding objective on which this court ought to exercise his power seeking to invoke to facilitate the just, expeditious, proportionate and affordable resolution. I therefore for interest of justice invoke the said power given to this court under section 3(b) of Appellate Jurisdiction Act Cap 141 RE 2019 and Section 76 (1) (b) and 79 (3) of Civil Procedure Code Cap 33 RE 2019 and order this matter to be remitted back to deputy registrar for hearing the matter on merit. On the premises, I consequently return the matter back to deputy registrar for hearing. No order as to costs. It is so ordered. 12 D. D. NDUMBARO JUDGE 19/06/2024 13