enock paschal mbepela vs mfilisi mbicu 1993 ltd 2023 tzhc 22366 2 november 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SONGEA SUB-REGISTRY AT SONGEA MISC. LABOUR APPPLICATION NO. 03 OF 2023 (Originating from Labour Application No. 04 of2022 High Court of Tanzania at Songea) ENOCK PASCHAL MBEPELA........................................................... APPLICANT VERSUS MFILISI MBICU (1993) LTD................................................... RESPONDENT RULING Dated: 26th October and 2nd November, 2023 KARAYEMAHA, J. The applicant, herein, lodged an application to move this court to review its order delivered on 24th July, 2023 before Hon. Madeha, Judge. In that order this court acceded to applicant's prayer to withdraw the said application. In this application, the applicant raised four grounds of review, as pleaded under paragraph 6 of the affidavit, namely: i. This honourable court be pleased to review the written submission and written rejoinder dated 23/12/2022 and 13/1/2023 which the judge failed to consider in the judgement dated23/2/2023. i ii. This honourable court be pleased to review the reply dated 6/1/2023 which had not denied evils of Mfiiisi MBICU (1993) Ltd. Hi. This honourable court be please to come with the appropriate ruling as justice demand under the Employment and Labour Relation Act and Constitution of the United Republic of Tanzania of 1977. iv. Any other order(s) or relief(s) this court may deem fit andjust to grant. The respondent is fervently opposed to the application. However, simultaneous with a counter-affidavit sworn by Watson Nganiwa, the principal officer of the respondent duly authorised to act as such, the respondent filed a notice of preliminary objection to the effect that; 1. This honourable court has no jurisdiction to entertain this matter. 2. This honourable court is improperly moved. 3. This application is time barred. At the date scheduled for mention the applicant appeared in person without legal representation while the respondent was represented by Mr. Nestory Nyoni, learned Advocate. By parties' consent this matter was argued by way of written submission. 2 The counsel for the respondent argued each point of objection separately. Arguing in support of the first point of preliminary objection, the learned counsel submitted that this court has no jurisdiction to entertain this matter due to the fact that there is a notice of appeal to the Court of Appeal. The counsel submitted zealously and cementing that, once the notice of appeal filed to the Court of Appeal in accordance with rule 83(1) of the Tanzania Court of Appeal Rules G.N. No. 368 of 2009, it initiates the appeal hence the High Court would have no jurisdiction to entertain this application for review which has been filed after the notice of appeal has been filed to Court of Appeal. He relied on the case of UAP Insurance Tanzania Company Ltd v. Akiba Commercial Bank PLC, Misc. Application No. 47 of 2022, High Court Commercial Division at Dar es Salaam (unreported) to support his argument. With respect to the second limb of preliminary objection the counsel for the respondent submitted that the applicant filed a notice of application for review only while it is the requirement of the law under order XLII Rule 3 of the Civil Procedure Code, Cap 33 Revised Edition 20 2019 that the provision as to the form of preferring appeal shall apply mutatis mutandis to application for review. The counsel added that the 3 applicant failed to file notice of review as required under rule 27(1) of the Labour Court Rules G.N. No. 106 of 2007. As for the third point of objection the counsel for the respondent submitted that the application for review must be filed within sixty (60) days from when the decision to be reviewed was delivered, he supported his submission with Part III item 21 of the Law of Limitation Act, Cap 89 Revised Edition 2019. The counsel added that the applicant filed his Notice of Application for Review on 29th day of July, 2023 which is more than five months from the date when the decision subject for review was delivered. In response, the applicant submitted nothing relevant to the point of preliminary objection raised by the respondent herein. A fair eye on his submission, indicates that he simply challenged what he called exhibit attached by the counsel for the respondent on the submission, to wit, cases in support of the respondent argument in relation to the points of preliminary objection raised. The applicant submitted further that the exhibit tendered by the counsel for the respondent lacked balance to the reality of relevancy before this court. Expectedly, and gathering from what he addressed me and his conduct, the applicant could not tackle issues raised. True to what he 4 comprehends he explained at length his complaints and how my predecessors acted unethically, his letters he wrote to the Jaji Kiongozi and many other complaints. All these are irrelevant because are no relationship with the preliminary objections raised. This, then, warrants me not to reproduce the same as they are unnecessary to the circumstances of this case. True as it is apparent, the applicant deliberately declined to reply to the points of preliminary objections alleging that the respondent's submission was drafted by unethical advocate. He remained on the ground that the advocate has to be cleaned before anything could progress. He, eventually, prayed that the point of preliminary objections be argued or struck out after being cleaned up. Having considered the arguments by parties, my major task at this juncture is to determine one, whether this court has jurisdiction to entertain this application, two, whether this court was properly moved and finally, whether this application is time barred. It worth noting that it is only the respondent who submitted in support of his point of preliminary objection and the applicant's submission is mere complaint which is not in relation to the matter before this court. On my journey to 5 dispose of this matter, I will argue the points of preliminary objection in seriatim. The first issue is whether this honourable court has no jurisdiction to entertain this matter. As rightly submitted by the respondent's counsel once a notice of appeal has been filed to the court of appeal in accordance with rule 83(1) of the Court of Appeal of Rules (supra), the lower court, the High Court for that matter, where the appeal originates automatically ceases to have jurisdiction to entertain the same matter unless to the few exceptions which are provided by the law, to wit, stay of execution. See the case of UAP Insurance Tanzania Company Ltd (supra). I have gone through the record of the court. It is clear that the applicant filed a notice of appeal on 13th March, 2023 to assail the decision of this Court in Labour Revision No. 04 of 2022 delivered on 23rd February, 2023 before Hon. Luvanda, Judge. He also filed application for review against the same decision on 9th March, 2023 which was struck out on 24th July, 2023 at the applicant instance. Still, on 29th July, 2023 the applicant herein moved this court to review the order dated on 24th July, 2023 which was entered at his instance. Much as I am aware, the applicant's moves seem to emanate from two dissimilar proceedings, but in reality, they have one source which he 6 challenges. As per the record he has already intimated to challenge it by way of appeal. Indisputably, this is a clear definition of abuse of court process. It appears that the applicant filed omnibus application for review and application for leave to file an appeal to the court of appeal. Later, he withdrew it before Hon. Madeha, J. on 30th June, 2023. Having done so, he filed another application for review against the order entered by this court at his instance. From the sequence events above the applicant exhibited what is called a forum shopping. All in all, there is no any evidence to show if the notice of appeal filed by the applicant was withdrawn at any stage before preferring the instant application. For that reason, this court has no jurisdiction to entertain this matter. Second objection is that the applicant improperly moved this court. Mr. Nyoni contended that the applicant filed the present application for review without a notice of review. The law on this requirement is settled. Rule 27(1) of the Labour Court Rule, 2007 requires that before filing the application for review, the applicant has to file a notice of review to the registrar within fifteen (15) days from the date when the impugned decision was delivered. For easy of reference, I quote Rule 27(1), thus: 7 Any review shall be instituted by filling a notice of review to the registrar within fifteen days from date the decision to be reviewed was delivered. I have gone through the proceedings and combed the record. I have not come across any document indicating that the applicant has filed a notice of review to the registrar to initiate this application. The provision quoted above poses a mandatory requirement for the applicant to comply with and not an option. Failure of which invalidates the whole application. From the above discussion, it goes without saying that the present application is incompetent before this court. Finally, is the objection that the application for review is time barred. Mr. Nyoni contended that applications of this nature have to be filed within sixty (60) days from the date when the decision to be reviewed was delivered. Part III Item 21 of the Law of Limitation Act (supra), provides that: Application under the Civil Procedure Code, the Magistrates' Courts Act or other written law for which no period of limitation is provided in this Act or any other written law is sixty days. The applicant's pleadings bring in confusion. Mr. Nyoni cannot be blamed for raising the issue of time limitation due the manner this application was presented. At paragraph 2 of the affidavit, the applicant mentioned the order dated 24th July, 2023 to be the decision he wants 8 this court to review. Nevertheless, at the heading of his chamber summons and the affidavit in support of the application, the applicant mentioned Revision No. 04 of 2022 to be the subject of review. Furthermore, paragraph 6 (1) of the same affidavit, the applicant urges this court to call and review the record of Revision No. 04 of 2022. To add salt on an injury, he attached on his application the order in Labour Application No. 01 of 2023 dated 24th day of July, 2023. From the above discoveries it is the finding of this court that the applicant lacks certainty on what decision he wants this court to review. Is it Labour Application No. 01 of 2023 which he attached in his application or Labour Revision No. 04 of 2022 he cited at the heading of his application and paragraph 6(1) of his affidavit in support of his application. Even by assuming that this is curable by invoking the overriding objectives, still the applicant's application can't stand. It is by a simple reason that this court lacks jurisdiction and the court was improperly moved. By a single reason that this court lacks requisite jurisdiction to entertain this application, the consequence is to dismiss it as I herby do. As the application for review emanates from a labour dispute, I order that each party should bear its own costs. 9 It is so ordered. Dated at SONGEA this 2nd day of October, 2023 .KARAYEMAHA JUDGE 10