JOHN MAKOKO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISCELLANEOUS LABOUR APPLICATION NO. 11555 OF 2024 CASE REFERENCE NO. 202405201000011555 JOHN MILINDI MAKOKO.................................................................. APPLICANT VERSUS NORTH MARA GOLD MINE LIMITED............................................... RESPONDENT RULING OF THE COURT 28/08/2024& 17/10/2024 Kafanabo, J.: This is an application for review made under Rules 27(2)(a)(c)(5) & (7) of the Labour Court Rules G.N. No. 106 of 2007 arising from the ruling and order of this court dated 07/05/2024 striking out Consolidated Labour Revisions numbers 13 and 17 of 2023. The application is made by the notice of application and memorandum of review containing seven grounds. Before proceeding with the hearing of the matter, it is important to put on record that this is an application for review emanating from Consolidated Labour Revisions No. 13 & 17 of 2023 which were heard and determined by his Lordship Mtulya, J. Under normal circumstances, the best practice requires that, as for as practicable, a review should be heard by the same Judge who delivered the decision. However, the assignment of cases is an i administrative function vested in the Honourable Judge In-charge who may assign and reassign cases by taking into account various factors. That stated this matter was assigned to me for determination, and it is not in contravention of the law. Reverting to the application before the court, when the representatives of the parties appeared for the first time before this Court in this application on 31/07/2024, the matter was scheduled for hearing on 29/08/2024, and the Court required the parties to prepare and come to address the Court on whether there is proper application for review before the Court. On 29/08/2024 the parties entered an appearance before the court ready to address the matter. At the hearing, Mr. Marwa Chacha Kisyeri entered an appearance as a personal representative of the Applicant and Mr. Imani Mfuru, Advocate entered an appearance for the Respondent. Mr. Kisyeri submitting in support of the position that the application for review is proper before the court, argued that the application is proper because it has been brought under Rule 27(2)(a) (c) (v), (vii) of the Labour Court Rules 2007. It was further submitted that the grounds of the memorandum of review from one to seven are proper for the review and most of them are based on errors on the face of the record of the impugned decision which struck out Consolidated Labour Revisions No. 13 & 17 of 2023. The case of Joseph C. Magessa vs Tanzania Breweries Limited (Civil Appeal No. 517 of 2021) [2024] TZCA 783 (21 August 2024) was cited to bolster the submission. 2 It was also submitted that the very same grounds contained in the memorandum of review of the Applicant herein are the same as those upheld by the Court of Appeal on page 7 of the said case of Joseph C. Magessa vs Tanzania Breweries Limited (supra). On page 9 of the decision, the Court considered the grounds of review for a labour matter including the discovery of new evidence, referring to grounds number 4, 5, 6, and 7 of the memorandum of review. It was also argued by the Applicant's representative that another ground for review was the denial of the right to be heard as explained in pages 9 to 10 of the Court of Appeal decision in Joseph C. Magessa vs Tanzania Breweries Limited (supra) case. Therefore, the application is proper before the court, and the court has the power to hear and determine the application. Mr. Mfuru for the Respondent was of a different view. He submitted that they accept that the case of Joseph C. Magessa vs Tanzania Breweries Limited (supra) provides the guidance for review and the same was adopted from the case of Chandrakant Joshuabhai Patel v. The Republic [2004] T.L.R. 218. The case of Joseph C. Magessa vs Tanzania Breweries Limited (supra) discussed the formula under which an application for review may be preferred, referring to the Court on page 12 of the typescript of the case. It was submitted by the learned counsel that in the present case, all the grounds stated in the memorandum of review do not meet the criteria as stated in the case of Joseph C. Magessa vs Tanzania Breweries Limited (supra). 3 The reason for the case not meeting the criteria stipulated in the case of Joseph C. Magessa vs Tanzania Breweries Limited (supra) was explained by the learned counsel that there is no error on the face of the record, the grounds stated in the memorandum of review hinge on the interpretation and application of the law. For instance, grounds one and three (which suggest another position that should have been taken by the Court), and grounds four and six of the review are challenging interpretations of the law. It was further submitted that in the case of case Paul Chando vs Icealion General Insurance (Civil Application No.348/18 of 2022) [2024] TZCA 830 (28 August 2024), it was held that misconstruing a provision of the law cannot be a ground for review but can be aground for appeal. The applicant's grounds of review are about the interpretation and application of the law, in principle the Applicant challenges the court by proceeding on incorrect position of the law and that the court misconstrued the provisions of the law. In the case of Elia Kasalile & Others vs Institute of Social Work (Civil Application No. 187 of 2018) [2019] TZCA 73 (5 March 2019), the court on page 12 stated that in review, the long and elaborate demonstration of facts and law is not required. All other grounds of review will also require a long and tedious demonstration. It was submitted that the grounds for review do not meet the requirement of the law for review. The Respondent prayed that the application be struck out. By way of rejoinder, it was submitted that the prayer for the respondent that the Application be struck out is devoid of merit and 4 reiterated the substance of his main submissions in support of the application. Having heard the parties' submissions, it is for this court now to determine whether this application before the Court meets the criteria of the law required for an application of review. For clarity purposes, it is a view of this court that the relevant grounds of review in the present application will enlighten the nature of the grounds of review and thus they are reproduced herein below, verbatim, as follows: 1. The applicant was wrongly deprived of an opportunity to be heard when the Court suo motu raised, considered, and decided on the issue ofapplicability and/or interpretation ofdie provisions ofRule 25 of GN No 64 of2007in as much as the Applicant declined the said rule to seek for rectification of the impugned award. 2. That the decision, on account of some mistake or error apparent zon the face of the record, was procured illegally and/or had no proper legal basis for the court at the composition ofits ruling to have struck out the said consolidatedrevisions ofboth parties whose none ofeither of the parties pleaded or argued for the struck out order, 3. That there is sufficient evidence or important matters discovered which after the exercise of the due diligence was not within the knowledge of the applicant during the hearing or could not be produced by him at the time when the order was passed, namely: a. That Rule 33(1) (2) of the Labour Institutions (mediation Arbitration Guidelines) Rules GN. NO. 67/2007is the specific law that underlines the correction of awards regarding any clerical 5 mistake or error arising in Ute award from any accidental slip or omission other than Rule 25 of Gn. No. 64/2007referred to by the Court which is generally about" any on- going proceedings" b. That the applicanthas discovered new andimportant matter that the court struck out the proper and competent consolidated revisions Nos. 13 & 17 of2023 for want of any POs and give directive only to the applicant, if he so wishes to contest die award in the dispute in accordance with Labour Laws and guidance of die Court ofAppeal on the subject while excepting respondent who also had her revision application No. 17/2023 consolidated for great efficiency with the former and the impugned award attached to it. c. That, the applicant has discovered out of the impugned ruling that the Court condemned the applicant unheard and largely shouldered him responsibiiity/biame or condemnation for rectification ofthe defect or error in the award committed by the arbitrator, also empowered to rectify the same or any party to seek for a correction like the respondent who remained silent on the error/defect in the award attached to her affidavit, but abruptly arose at the hearing or finger the applicant for seeking the award to be rectified white in her counter-affidavit at paragraph 37 & 39 in Labour Revision Application No. 13/2023 admitted to misnomer and pleaded that it is a mere slip ofpen (accidental slip) to be corrected by CMA awardis not tainted with wrongs or legal wrangles. 6 4. That, the decision/order is based or a manifest error on the face of the record in such that the Applicant declined both rule 25 of GN. No. 64/2007and recodification ofnames at the commission as required by the law, resulting in miscarriage ofjustice. 5. That, die Court's decision is based on error apparent on the face of the record, for its declaration that the revisions before it were incompetent for want ofproper names of the parties in the revisions, while in both of the said revisions (nos. 13 and 17 of2023) contain proper names of the parties as they are featuring therein their copies ofthe pleadings and notice ofintention to seek for revision ofthe ward (CMA F10) attached thereto. 6. That, the court made a manifest error by omitting to notice and/or find out that the most relevant and applicable principle of law concurring with correction of awards is rule 33 of the Labour Institutions (Mediation and Arbitration Guidelines) Rules GN. No. 67 of2007and not rule 25 of GN of 2007 which is mostly about the on-going proceedings in terms of Rules 10 and 29 of the latter Government Notice. 7. That, the Court's decision is based on the manifest errors on the face of the record, resulting in miscarriage ofjustice by raising and or doing the following suo motu:- a) To strike out the main consolidated revisions Nos. 13 and 17 of2023 yet to be heard on merits and not moved by either party to make such struck-out order. 7 After laying bare the grounds of review as preferred by the Applicant it is also important for this court to ensure that it is well-guided in determining whether the above grounds of review make this application a proper application of review before the court. In order to ensure that this court is well-guided in determining the criteria of the application for review, this court needs to review the guiding law in that respect. In our jurisdiction, it is clear that there are common grounds for review in the civil jurisprudence as developed through case law. Moreover, in labour law the issue of review is governed by rule 27 of the Labour Court Rules 2007, and of particular importance is rule 27(2) of the said rules which provides that: "(2) Any person considering himselfaggrieved by a judgment, decree or order from which - (a) an appeal is allowed, but from which no appeal has been preferred; or (b)no appeal is allowed, and who, from the discovery of any new and important matter, or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the judgment or decree was passed or order made, or on account ofsome mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the judgment, decree or order made against him, (c) may apply for a review of the judgment, decree, or order to the court. 8 Supplementing the above provision, there is a plethora of the Court of Appeal decisions providing guidance on grounds and circumstances in respect of which an application for review may be preferred. The leading authority in that regard is the case of Chandrakant Joshuabhai Patel v. The Republic [2004] T.L.R. 218, the Court of Appeal held that it has inherent jurisdiction to review its decision and it will do so in any of the following circumstances (which are not necessarily exhaustive): (a) where the decision was obtained by fraud; (b) where a party was wrongly deprived ofthe opportunity to be heard; and (c) where there is a manifest error on the record, which must be obvious and self-evident, and which resulted in a miscarriage of justice; Moreover, in the case of Joseph C. Magessa vs Tanzania Breweries Limited (Civil Appeal No. 517 of 2021) [2024] TZCA 783 (21 August 2024) the above rule 27(2) of the Labour Court Rules was interpreted and the Court held that there are three grounds which can be used to ask for a review of the labour matter. These grounds are: 1. When Hie applicant discovers any new and important matter or evidence which, after die exercise ofdue diligence, was not within his knowledge or could not be produced by him at the dme when the judgment or decree was passed or order made. 2. When there are some mistakes or errors apparent on the face ofthe record, and 9 3. For any other sufficient reason. Additionally, as regards the import dr meaning of manifest error on the face of record the Court of Appeal in Joseph C. Magessa vs Tanzania Breweries Limited (supra) when referring to its own decision in Chandrakant Joshuabhai Patel v. The Republic held that: "In Chandrakant (supra), the Court quoted the book by Muiia on the Code of Civil Procedure (14 ed.) pages2335 - 2336 where the learned authors wrote: "An error apparent on the face ofthe record must be such as can be seen by one who runs and reads, that is, an obvious andpatent mistake and not something which be established by a long drawn process of reasoning on points on which there may conceivably be two opinions... It can be said of an error that is apparent on the face of record when it is obvious and self-evident and does not require an elaborate argument to be established." The Court further devised a formula for determining whether the error complained of is a manifest error apparent on the face of the record. It said: "First, there ought to be an error, next the error has to be manifest on the face of the record, finally, the error must have resulted in miscarriage of justice. The three ingredients must have to co-exist for the error to be capable a grounding a review" io Bolstering the above, is a comparable position that was taken recently in the decision of the Court of Appeal in the case Paul Chando vs Icealion General Insurance (Civil Application No.348/18 of 2022) [2024] TZCA 830 (28 August 2024). In this case the Court held that: "It is well established that the essence of a review is not to challenge the merits of the impugned decision but to address irregularities of a decision or proceedings which have occasioned injustice to a party. In Chandrakant Joshubhai Pate! v. Republic [2004] T.L.R. 218, it was held that, a review is granted where a court considers it necessary to correct an apparent error or omission of a court and an error that does not require an elaborate argument to be established. It was further held that in a review, it is not sufficient to fault a Judge for taking a position that another could have decided differently where a court proceeds with an incorrect exposition of the law that leads to a flawed conclusion, (see, Charles Barnabas v. Republic, Criminal Application No. 13 of 2009 (unreported) and National Bank of Kenya Limited v. Ndungu Njau [1997] eKLR 469)." Also in the case of Elia Kasalile & Others vs Institute of Social Work (Civil Application No. 187 of 2018) [2019] TZCA 73 (5 March 2019) the court of Appeal held that the fact that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law, or that it has misconstrued a statute cannot be a ground for review. ii Having established the law applicable in review, it is now opportune for this court to apply the same to the present case. The best determinants in this matter are the grounds of review as contained in the memorandum of review itself and reproduced herein above. Commencing with the 1st ground of review the Applicant challenges the decision of this court based on the alleged deprivation of the right to be heard, because the Court raised suo mote, and decided on the issue of applicability and interpretation of provisions of Rule 25 of GN. No.64 of 2007. This means that the Applicant wants the court to determine whether it is true that the interpretation of the said rule was raised suo moto, and whether the right to be heard was breached. A cursory glance at the ruling of this court dated 7th May 2024 indicates that the matter that led to the decision was raised by one of the parties and not suo motu by the court as alleged and that parties were duly heard by the court as indicated on pages 5, 6 and 7 of the ruling. Anything above this consideration by the court would be more than a manifest error on the face of the record which has been well expounded herein above in light of the Court of Appeal decisions. Besides, any further step in determining the said ground of review would go far beyond review as would require a long-drawn process of reasoning which clearly shows that the said ground of review hinges on an alleged error that is neither apparent on the face of the record, nor self-evident, which means it would require an elaborate argument to be established. See Chandrakant Joshuabhai Patel v. The Republic (supra) and Joseph C. Magessa vs Tanzania Breweries Limited (supra). 12 In ground two of the review, the Applicant alleges a mistake or error apparent on the face of the record because the decision of this court was procured illegally or had no proper legal basis. This again, in light of the above authorities, does not fit to be aground of review because the applicant requires this court to determine the legality of its own decision by way of review. This befits to be a ground of appeal or revision to the apex Court which will be able to delve into the merits of the matter as an overseer of the courts below it. See Elia Kasalile & Others vs Institute of Social Work(supra). Grounds three, four, and six of the review also challenge the correctness of the law applicable and the propriety of the decision of this court. Additionally, the said grounds of review as crafted by the Applicant, and especially ground three, would not fit in the category of an error apparent on the face of the record. The details claimed to have been wrongly decided would require a nitty-gritty analysis of the record of the court and, without a doubt, that would attract a long-dawn process of arguments and reasoning not befitting an application for review. See the cases of Paul Chando vs Icealion General Insurance (supra) and Elia Kasalile & Others vs Institute of Social Work(supra) Ground five is about challenging the decision of this court which ruled that the applications before the court were incompetent. This also would require this Court to dig deep in pleadings and evidence on record which will be beyond its mandate under the law in an attempt to determine whether it was correct for this court to rule that the applications before it were competent or not. This again does not fit the definition of manifest error on 13 the face of record as defined in the case of Chandrakant Joshuabhai Patel v. The Republic (supra). Moreover, ground seven challenges the order of this Court which struck out applications yet to be heard by the court. As earlier stated, the ruling of this court subject matter of the application for review was issued after the parties were given the opportunity to be heard. It follows that whether striking out the applications was proper in law because the applications were yet to be heard on merits or otherwise, and as alleged by the Applicant is not for this court to reexamine and reevaluate its decision. The remedies such as appeal or revision, as the case may be, suit the challenge if deemed appropriate by the Applicant. In light of the above, this court, with profound respect, disagrees with the submissions of the Applicant's representative that the grounds of review in this application are the same as those upheld by the Court of Appeal in Joseph C. Magessa vs Tanzania Breweries Limited (supra). Instead, this Court is of the view that the grounds of review, as specified in this application, befits grounds of appeal and/or revision as the said grounds challenge, among others legality of the decision, the correctness of reasoning of the court, interpretation of relevant sections of the law, also the relevance of the provisions of the law as chosen by the Court in making its decision, just to mention inexhaustively. It follows that the same cannot be determined by this court without stepping out of the perimeter of review and in fact, it has no jurisdiction to consider and determine some of the grounds for review in this application as they are 14 under the mandate of the Court with appellate and/or revisional jurisdiction over this court, that is the Court of Appeal. At this juncture, it is also important to point out that an irregularity in the decision of the court does not simply, or automatically become a ground for review by attaching to it, or for being preceded by pleasing phrase(s) of the drafter, for instance, 'the decision or order is based on a manifest/apparent error on the face of the record, or that it has occasioned a miscarriage ofjustice, or there is deprivation of the right to be heard or discovery of new evidence or matter not within the knowledge of the applicant. The law, as demonstrated herein above, requires the alleged anomaly on the face of the record to be strictly obvious and self-evident in the sense that it would not attract two varying opinions on the matter. Under the circumstances, this Court finds that this application for review is improper before this court and thus incompetent. It trails that the said application is hereby struck out. Since the application touches a labour matter each party shall bear their costs. It is so ordered. Dated at Tarime this 17th day of October 2024. K. L‘ fanabo Judge 17/10/2024 The Ruling was delivered today in the presence of Mr. Marwa Chacha Kisyeri, a personal representative of the Applicant (linked via teleconference) and Mr. Imani Mfuru, Advocate for the Respondent (also linked via 16