20110714 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA ·AT DAR ES SALAAM Coram: Shangwa,J. Aboud, J. Makuru, J. CIVIL APPEAL NO. 204 OF 2008 (Original Application No. 11 of 2007 of the full Bench of the Industrial Court of Tanzania) JOHN NASSORO MWANJILA . . . . . . . . . . . APPELLANT V. SHREE HINDU MANDAL HOSPITAL . . . . RESPONDENT Date of last order 10/3/2011 Date of Judgment - 14/7/2011 JUDGMENT Shangwa, J.: This appeal arises from the decision of the Industrial Court of Tanzania in Civil Revision No. 11 of 2007 in which the .said Court presided over by E.L.K. Mwipopo, J Chairman, C.E.R. William, Deputy Chairman and E.J. Mkasimongwa, Deputy Chairman dismissed the Appellant's application for revision of the decision of I. Mipawa, Deputy 2 Chairman (as he then was) given in Trade Inquiry ro. 50 of 2003. The Appellant John Nassoro Mwanjila raised five grounds of appeal against the aforesaid decision. They are as follows:- 1. That the Industrial Court of Tanzania seriously erred in law and fact in not holding that it has jurisdiction to interpret its decisions and awards at any time under S. 27 of the Industrial Court of Tanzania Act, Cap 60 R.E. 2002. 2. That the Industrial Court seriously erred in law and fact in not holding that Staff Regulations made by the Respondent without consultation with the Trade Union was not a voluntary Agreement by virtue of S.41 of the Industrial Court of Tanzania Act, Cap 60 R.E. 2002. 3 3. That the Industrial Court failed to interpret S.8 (b) of the Security of Employment Act, Cap 387 to mean that the valid approval of the Labour Officer was necessary before terminating the Services of the Appellant who was the Chairman and a member of Trade Union (TUGHE) Field Branch at the place of work. 4. That the Industrial Court seriously erred in law and fact in not holding that 55 years of age was not a fair reason for terminating the Appellant who was already 58 years with good work performance at his credit and, by implication, the retirement age was 60 years or above. 5. That serious injustice has been caused to the Appellant. 4 In his Memorandum of Appeal, the Appellant asked this Court to reverse the decision and award of the Industrial Court and declare that he was wrongfully terminated by the Respondent from employment on 30 th April, 2003. That is before he had attained the retirement age of 60 years. The Appeal was argued by way of Written Submissions. In his written submissions, Mr. Anthony Arbogast Mseke who is representing the Respondent in this case observed inter-alia that the Appellant's written submissions and grounds of appeal are out of context and are without substance. He said that the Appellant's grounds of appeal are unfounded and do not in any way marry with the Ruling of the full Bench of the Industrial Court of Tanzania. He said also that the Appellant's written submissions have no relationship with regard to the award of the full Bench of the Industrial Court and have no relationship to his grounds of appeal. 5 We have gone through the decision of the full Bench of the Industrial Court of Tanzania delivered on 15 / 10 / 2008 and found that the Appellant's application for revision of the decision given by I. Mipawa, Deputy Chairman as he then was, dated 10/12/2004 in Trade Inquiry No. 50 of 2003 was dismissed on grounds that it was time barred. The application was dismissed on the said grounds fallowing the preliminary objection raised by counsel for the Respondent that it was time barred. The reason which was given by the full Bench of the Industrial Court of Tanzania for holding that the Appellant's application was time barred is that whereas the decision of I. Mipawa, Deputy Chairman was given on 10/12/2004, the application for revision of the said decision was filed on 12/6/2007 which was about three years thereafter and that the Application for revision of his decision ought to have been filed within 14 days after its delivery. 6 We have also gone through the Appellant's grounds of appeal against the decision of the full Bench of the Industrial Court and we agree with counsel for the Respondent that those grounds are not relevant to the Ruling of the said Court. There is nothing in those grounds which goes to challenge the holding of the said I court that the Appellant's application for revision of I. Mipawa's decision dated 10/12/2004 and his decision dated 12/5/2005 is not time barred or that it is time barred but that leave to file it out of time had been granted by the court. We have gone through the Appellant's written submissions and found that there is no substance which goes to show that the full Bench of the Industrial Court erred by holding that the application for revision was time barred. It is in his rejoinder submissions only at item (c) that he attempts to argue that despite the fact that he filed a notice of his intention to apply for revision on 16/12/2004 which was six days after I. Mipawa's decision, 7 the court did not supply him with the proceedings. However, he does not indicate as to when the court supplied him with the proceedings. A close examination of the Appellant's grounds of appeal and his written submissions show that the Appellant dwelt on his key dispute which involves an issue that he was terminated by the Respondent from employment before attaining the age of 60 years and forgot that his application for revision was not considered on merit but that it was simply dismissed on procedural grounds following a preliminary objection against its hearing based on a point of law that it was time barred. As a matter of fact, the full Bench of the Industrial Court could not make any holding concerning the substantive issue between the parties due to the fact that the Application for revision of the decision given by I. Mipawa, 8 Deputy Chairman was lodged out of time and without leave of the court to do so. For these reasons, we entirely agree with counsel for the Respondent that this appeal is not well founded. We dismiss it. However, we order that each party should bear its own costs. ~ A.Shangwa JUDGE 14/7/2011 I.D. Aboud JUDGE 14/7/2011 C.W. Maku u JUDGE 14/7/2011 9 Delivered in open Court this 14 th day of July, 2011 in the presence of the Appellant and Ms. Yasinta Peter for the Respondent. · ~ A.Shangwa JUDGE 14/7/2011 I.D. Aboud JUDGE 14/7/2011 ~ C.W. Makuru JUDGE --~ 14/7/2011