20170817 TZCA Tabora

IN THE COURT OF APPEAL OFTANZANIA ATTABORA (CORAM: LUANDA, J.A., MWARIJA, J.A. And MKUYE, J.A.) CIVIL APPLICATION NO. 36 OF 2012 H P. C H ARLES RU BA !(A ....................................a ............. ........ A P P LICA NT - VERSUS I THE MINISTER OF LABOUR, YOUTH AND CULTURE THE ATTORNEY GENERAL RESPONDENTS THE POSTS MASTER GENERAL (Application for Review from the decision of Court of Appeal of Tanzania atTabora) (Rutakangwa, Mbarouk, And Massati, JJJ.A.) Dated the 2 nd day of June, 2010 in ApIication for Revision No. 1 of 2009 RULING OFTHE COURT 141h & 18th August, 2017 MWARIJA, JA.: The applicant, a former employee of the Tanzania Posts Cooperation was dismissed from employment by his said employer on disciplinary grounds. Following his appeal to the Minister for Labour, the dismissal was set aside and was instead ordered to be terminated. He was further aggrieved by the Minister's dedsion and intended to ifie an application for certiorari and mandamus in the High Court. He therefore filed the 1 requisite. application for leave in the High Court of Tanzania at Tabora against the Minister for Labour, the Attorney General and the Director General, Tanzania Posts Corporation (the 1st 3rd respondents respectively). The appHcation could not however, proceed to hearing on merit. It was struck out by Chinguwile, J. on 26/7/2007 following a preliminary objection raised by the 2' respondent that the application was supported by a defective affidavit. Still having the intention of challenging the Minister's, decision, the applicant filed a fresh application for leave to institute an application for certiorari and mandamus, Miscellaneous Application No. 63 of 2007. This second application could not, similarly, proceed to hearing. It was struck out by Mujulizi, 3. on 29/5/2008 after he 2nd respondent through had upheld the preliminary objection raised by the Mr. Mulwambo, learned State Attorney. The learned judge agreed with the points raised in the preliminary objection that the Court was not properly moved and that the application was filed out of time. The applicant was again, dissatisfied with the decision of the High Court and thus intended to apply for revision of the High Court's decision. Since the time. as not on his side, he lodged an application, for extension. of time to file an application for revision. In his notice of motion filed on PJ 23/1/2009, . the applicant sought for extension of time to file an applicatiOn for revision andproceed'tb' hear the applicatiOn for reyiibn of the two decisions of the High Court. The application was objected to by the 2 nd respondent through, a., preliminary objection consisting, inter a/ia, of two grounds; firstly, that the Court was not properly moved because the applicant had cited inapplicable provision of the law and secondly, that the application was misconceived as the orders sought to be revised are appealable as of right. Apart from conceding to the preliminary objection, the applicant - through his advocate, Mr. Kwikima, learned counsel, admitted that the notice of motion did not state the grounds upon which the applicant had brought the application. As a consequence, in its order dated 2/6/2010 the Court struck it out. It is against that order the applicant has filed this application for review. At the hearing of the application, the applicant appeared in person, nd respondents were unrepresented. On their part, whereas the V t and 2 3rd respondent represented by Mr. Iddi Mgeni, learned State Attorney, the appeared through its Legal Officer, Mr. Erick Maximillian. . Since by a notice filed on 10/8/20i 1 the 1 and 2responden.ts had, through Mr. Juma Simon Masanja, learned Senior State Attorney, filed a preliminary objection, we required the parties to argue first, the point of objection raised. The preliminary objection consists of four grounds as follows:- "1. This application is incompetent for being instituted by defective notice of motion on the ground of non- compliance of rule 48 (1) of the Tanzania Court of Appeal Rules, 2009. That the application is hopelessly time barred in violation of rule 66 (3) of the Tanzania Court of Appeal Rules, 2009. Non or wrong citation of law as per decision of this court in HARISH AMBA RAM JINA (BY HIS A TTORNEY AJAR PA TEL) v ABDULRAZAK JUSSA SULEIMAN [2004] TLR 343. And that the notice of motion did not put in record any reviewable matter as a ground of review as required by rule 66 (1) of the Tanzania Court of Appeal Ru/es, IH 2009 arid as propounded by this court in the case of ThBLi NYANDA @ KATWIGA VESUS'THE REPUBLIC, CRIMINAL APPLICA TION NO. 2 OF 2007 and CHA NDRA KANT JOSHUBHAI PA TEL v. .. .. REPUBLIC [2004] TLR 218/' 1st and 3rd grounds together.. In his submission, Mr. Mgeni argued the He submitted that since the applicant has neither cited in his notice of motion the enabling provision for the application nor the grounds for the relief sought, he contravened the provisions of Rule 48 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). As consequence, the learned counsel argued, the application is incompetent. To bolster his argument, he cited the case of Harish Ambaram Jina. (by his Attorney Ajar Patel v. Abdularazak ]ussa Suleiman [2004] TLR 343. 2nd and 4th grounds which were argued in the With regard to the alternative, Mr. Mgeni submitted that the application is time barred as the same was filed on 29/2/2012 after the period of 60 days from the date of the order which is sought to be revised. He relied to that effect on Rule 66 (3) of the Rules. 5 The learned State Attorney argued further as regards the 4th ground, that even if the apphcãtion would have been flied within the prescribed time limit, the same would be incompetent for the reason that the applicant did not state in his notice of motion, under which of items (a)-(e) of Rule 66 (1) of the Rules is the application based. On his part, the applicant opposed the preliminary objection but being unrepresented, did not have any sound legal arguments to make in reply. He pleaded impecuniosity stating that; although his notice of motion was prepared by an advocate, it had been difficult for him to engage a counsel to represent him before the Court. He urged us to consider his position and make and appropriate decision. Mr. Maximillian supported the arguments made by learned State Attorney. He added that the applicant's conteption .tht:the .defect was.due to his inability to have services of a counsel is not a sound ground for filing a defective notice of motion. It is patently clear from the notice of motion that the applicant neither cited the enabling provision for the application nor the grounds upon which the review is soUghL This is in contraventionof Rule 48 (1) Of the Rules which states as f6llows:- "48 (1) Subject to the provisions of sub-rule (3) and to any. other rule allowing informal appIications.. every application to the Court shall be by notice of motion supported by affidavit. It shall cite the specific rule under which it is brought and state the ground for the relief sought." [Emphasis added]. The effect of a failure by an applicant to comply with the provisions of Rule 48 (1) of the Rules was stated by the Court in the case of Abel Mwamwezi vs. The Republic, Criminal Application No. 1 of 2013 (unreported). It was observed as follows:- "...the appilcant failed to comply with the mandatory requirements of Rule 48 (1) and (2) of the Rules.... In view of the foregoing therefore, the notice of motiqn is incurably defective..." (See a'so the case of Harish Ambaram Jina (supra) cited by the learned State Attorney). iFA As stated above, the apphcant has attributed the defect in his notice of motiOn to his inability to engage an advocat. 'It is not undisputed however, that the application was filed by an advocate. That notwithstanding, we agree with Mr. Maximillian that inability by.a party, to... engage a counsel would not justify non-compliance with mandatory requirements of the law. We need not here say much than repeating what was stated by the Court in the case of Thomas David Kirumbuyo & Anr. Vs. Tanzania Telecommunications Co. Ltd.; Civil Application No 1 of 2005. The Court had this to say:- "Because of the central rule of the Rules of Procedure in the administration of justice, on a number of occasions, this Court has referred to the words of Colfins RM in the Matter of an arbitration between Coles And Ravenshear [1907] 1 KB 1 in which the work of the rules of procedure were ilkened to that of hand maid rather than mistress. For this reason, in order to ensure that the machinery of administering justice is not hamphered, the Court is duty bound. Po aDD/V the rules. at all times stringently. There is ,'.. E:;3 V. no exception provided ur,dei the ru/es for relaxed application when laymen are in valved in the case here..." Since in this case, the applicant did not comply with Rule 48 (1) of the Rules, the appcation is rendered incompetent. Having decided the 2 nd and 3rd grounds of the preliminary objection in the manner stated above, the need for considering the other grounds does not arise. In the event we hereby strike out the application for being incompetent. Considering the fact that the matter arose from a labour dispute, each party shall bear its own costs. DATED at TABORA this 17th day of August, 2017. B. M. LUANDA JUSTICE OF APPEAL A. G. MWARIJA JUSTICE OF APPEAL R. K. MKUYE JUSTICE OFAPPEAL I certify that this is a true copy of the original. P. W. BAMPIKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 9