20011213 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA A!._DAR ES SALAAM CIVIL APPLICATION NO. 94 OF 1999 In the Matter of an Intended Appeal BET.lE:i£N GAUDENSIA MZUNGU. Cl 4 0 • O • • APPLIC11.NT THE I.D.M. MZUMBE • RESPONDENT (Application for leave to appeal from the decision of the High Court of Tanzania at Dar es Salaam) (~uguru-PRMA;xtended Jurisdiction). dated the 12th day of May, :19~8 in Q.uU. Appeal No. 26 of 1997 RULING _FAMADHAi'H I J •.fu..: Gaudensia. Mzimgu, the applicant, seeks le11.ve to appeal to this Court after the same had been refused by KATITI 1 J. in Misc. Civil Cause No. 84 of 1998. The. facts of the matter are briBfly thus: The applicant sued the :i:-espondent 1 the Institute of .Development Management, M!l.umbe, I - . in the, ~:Ls0tti.ct.Court of Morogoro, Cl;\r,,;i.J;JCase;!,N'o~·. 74 of 1996, !ilt'ifff:'.lf~ii~~'i':f'fi:i f.¥ ·t' ;~ claim;ing some· payments arising out of their employer-employee relationship. A preliminary objection was raised to the effect \ , that an existing voluntary agreement requires the dispute to go . \ first to the Workers I Union Branch at Morogoro6 The District Court upheld that objection and dismissed the suitA Her appeal before LUGURU, P.R.M. (Extended Jurisdiction) also failed and so, she filed in the High Court an application for leave to appeal to this Court, which, as already pointed out, was dismissed. This is her second attempt for leave to appeal. • •• /2 , ' 2 Mr. Mt;ses Maira, learned counsel, represented the applicant, and the reRFondent had the services of Mr. Salum A. Massati, , learned advocate'!> Mr. Maira pointed out that the suit was dismissed on a technicality and that that is not a point of law. So, he is an arguable a.ppeal. Mr,_. Massati, on the other hand 1 submitted that leave is granted wb.::ire prima facie grounds of appeal meriting judicial consideration are disclosed (~~ ~~~. Es;tates :.td:: v • ._ Dresner Bank AoG~ L19717 ~.!-1.Z) • The learned advocate submitted that no such grounds .have been disc.losed by the applicant. In revly Mr,,, Maira contended that the trial court did not give the ap:x,.licant an opportunity to show that the court had jurisdiction to deaJ. with the suito He rel.l•J.~;:.. on Fortunatus Masha v,. William Shija & ~th:!. D99J/. T.L.R. 41 • With respect, I do not ag:ree with Mr. Maira. I have i;,ot seen the ruling of ·the trial nourt.1 r-ut I have S-Gau that .of umu1m 1 P..R.M. ··- (Extended Jurisdiction). It is clear that a preliminary objection was raised with respect to the jurisdiction of· the trial court in view of the voluntary agreement. Parties addressed the COUl"t and· then thF.. C..::ial court dismissed the suit for lack of jurisdiction and decide~ that the matter ought to have started accordt~g to the provisions of the Voluntary Agreement. Adrnittedly 1 the a.:pplicant .did not hr,vr, a.,. advocate so obviously she could not have addressed the cour·L l-'roperly '."Jn that legal issue. But that is not the satne as sayfog tha~ she was not afforded opportunity to address the court., ••• /3 ... . • •f C 3 Again, leave is not granted because there is an arguable appeal. There is always an arguable appeal. What is crucially important is whether there are, prima facie, grounds meriting an . appeal to this Court. --:~.,_~~=-~··-··-s=-...-=.=.,='"'=..,...~=,~"~-"~=->·""-'='~---~~=-·• ""'-~,~-"'.-"'";.....'"·"·-""''""-··•'''-"'=.,;..~-=..,.·,·~-~-:-i. KATITI, J. dismissed tbe application for leave to appeal ·mainl.Y on .the ground that a copy of the ruling of LUGURU, P.R.M. (Extended Jurisdiction) -was not attached to the application as required by the rules. However, the learned judge went further to consider whether there are prima fac·ie grounds of-appeal __ . mei;iti,ug.. ~r3.9us jµdicial ~id.eration and found that the.re were none. In addition, the lean1ed judge discussed at some length · . some under-the-table dealiJ:J.gs by the applicant in processing her application in the High Court for leave to appeal of which I do . not want to say anything at all .. I entirely agree with the learned judge tl;lat there are :no grounds of appeal worth coming to this Court for consideration. The suit was decJ.?red pi;-emature a..'1.d tl=t the matte:r ought f±x-st to have gone to the Workers Union Branch. So, the applicant· is not without a remedy: she can go to the Workers Union. So 1 I dismiss the application for leave to appeal with costs. DATED at DAR ES SALAAM this 13th day of December, 2001. A.S.L. RAHADHANI JUSTICE OF APPEAL I certify that this is a true copy of the original. . _ .;:·. . _. t .. .r' / ,:.· .•. : ( F.L.K; \-!AMBALI r· ..... . ·~ ....-~-- DEPUTY REGISTRAR -•---..