20110912 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM {CORAM: KIMARO, J.A., BWANA, J.A. AND MANDIA, J.A.) CIVIL APPLICATION NO. 20 OF 2011 HAJI HASSAN AMOUR AND 112 OTHERS ................................... APPLICANTS Versus THE MANAGING DIRECTOR, PEOPLES BANK OF ZANZIBAR .................................................. RESPONDENT (Application for correction of omission in a judgment and order of the Court of Appeal of Tanzania, at Dar es Salaam) (Bwana, Othman and Mandia, JJJ.A.) Dated 10th May, 2010 and two drawn orders dated 10th August 2010 and 22 nd September 2010 in Civil Appeal No. 120 of 2009 RULING OF THE COURT 23 rd August & 15 th September, 2011 BWANA, J.A.: Following a judgment of this Court in Civil Appeal NO. 120 of 2009 dated 10th May, 2010, the applicants herein filed a Notice of Motion under Rule 42 (1) of the Court of Appeal Rules, 2009 (the Rules) requesting the Court to make corrections to what they saw as apparent omissions in the said judgment. They pointed out three such omissions. They are:- 1. That the Court omitted to quash the redundancy exercise after \ I finding that the said exercise by the respondent was illegal. 2. That the first drawn order whiJ reflect the import of the judgment I was amended, leaving the status of the redundancy exercise in abeyance and leaving the r!trenched applicants without any ' executable remedy. 3. That the omission of not quashing the redundancy exercise and ordering the applicants to be rei~stated in their employment was an accidental slip and omission whijh has resulted in two drawn orders from the same court judgment. They therefore asked the same to be amended and to give effect to the intention of the court by correcting thi accidental slip or omission of not quashing the redundancy as it did wit~ other illegal process found in the whole redundancy saga. In response, the respondent raised a notice of preliminary objection couched in the following words:- 2 1. "That the application is misconceived as it is purported to be made under Rule 42 (1) of the Tanzania Court of Appeal Rule~ 200~ which according to the marginal note is for "correction of errors'~ The application and its affidavit do not point out any clerical or arithmetical mistake in the judgment of the Court or any error arising in it from an accidental slip or omission. What the applicant is praying for is to introduce a new substantive issue which has huge effect on the judgment" (emphasis provided). 2. "That the Hon. Court has been improperly moved as the application and its affidavit sought to review the judgment of the Court and not to correct an accidental slip of the pen and the sought correction goes to the root of Civil Appeal No. 120 of 2009" (Emphasis provided). 3 The applicants were represented by Hamid Bwezeleni and Salim Mnkonje, learned advocates while Saadiye Hamid Suleiman, learned counsel, represented the respondent. All the learned three counsel addressed the Court in respect of the matter before us. Mr. Mkonje, specifically argued that a preliminary objection on a point of law cannot be raised in an application using Rule 107 (1) of the Rules because it refers to a preliminary objection in an appeal. The Court has held (in the case of The University of Dar es Salaam vs Silvester Cyprian and 210 Others (1998) TLR 175) that a preliminary objection can be raised in an application but not using Rule 100 (of the 1979 Rules which is similar to Rule 107 (1) of the 2009 Rules). The enabling provision has, therefore to be Rule 4 (2) (a) of the 2009 Rules. Rule 4 is an aid to the Court. Consequently therefore, we can proceed to determine this application. Despite long and lucid submissions by both sides to this application, the central point for our determination is whether the application is properly bought before us, by invoking Rule 42 (1) as submitted by both counsel for the applicants or it introduces a new substantive issue which 4 goes to t_he root of the judgment in Civil Appeal No. 120 of 2009, thus altering its meaning and substance, as averred by counsel for the respondent. Rule 42 (1) provides thus:- " A clerical or arithmetical mistake in any judgment of the Court or any error arising in it from accidental slip or omission ma~ at any time/ whether before or after the Judgment has been embodied in an orde0 be corrected by the Cou~ either of its own motion or on the application of any interested person so as to give effect to what the intention of the Court was when judgment was given" (Emphasis provided). The three points (supra) raised by the applicants, can they be said to conform with the requirements of Rule 42 (1) above? We are hesitant to hold in the affirmative for the following _reasons:- 5 The said Rule 42 (1) as we understand it, is applicable or can be invoked where there are apparent and innocuous errors, mistakes or omissions, in a judgment, which are merely of a clerical or arithmetical nature. The intended correction of the said errors, mistakes or omissions should have no effect to the substance of the said judgment. In other words, the intended changes should not insert into the judgment words which alter its meaning. Rule 42 (2) gives the power to the Court to correct an order "if it does not correspond with the judgment it purports to embody". The Notice of Motion before us was made under Rule 42 (1) and (2). It means therefore that the said Notice wants to correct both the judgment and the order. The applicant admits that there are two orders - the first one which he agrees with and a second one which he disputes. He cannot, in our considered view, fault the judgment while at the same time agreeing with the first order and disagreeing with the second one while both orders are extracted from the same judgment. 6 After hearing both parties to the application and particularly the submission by counsel for the applicants, it is apparent that the notice of motion filed containing (a) to (c) grounds supra, does not conform to what is intended and allowed under Rule 42 ( 1) of the Rules. Rather, it intends to introduce matters which would alter the substantive issues as decided upon by this Court in Civil Appeal No. 120 of 2009. Further, moving the Court to quash the redundancy exercise, means going into the merits of the case and moving the Court to sit on appeal on its own decision by extensively varying the content of its judgment. This cannot be done under Rule 42 or any other Rule. We make a further :observation. The Court has declared the redundancy exercise void; the exercise of the powers of the Commissioner void; and has consequently quashed the proceedings before the Industrial Court. This Court has made a finding of fact that the applicants had no locus standi before the Commissioner for Labour and in the Industrial Court for lack of representation by a Trade Union. An order for reinstatement cannot, therefore, be made to people who lack capacity to appeal before any adjudicative body: 7 .. The foregoing considered, we uphold the preliminary objection ~nd dismiss the application. Mindful of the fact that this is a labour related dispute and that the applicants are formers workers retrenched by the respondent, we award no costs. It is so ordered. DATED at DAR ES SALAAM this 1ih day of September, 2011. N. P. KIMARO JUSTICE OF APPEAL S. J. BWANA JUSTICE OF APPEAL W. S. MANDIA JUSTICE OF APPEAL I certify that this is a true copy of the original. E. Y. MKWIZU DEPUTY REGISTRAR COURT OF APPEAL 8