20131224 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISC. APPL. NO 60 OF 2013 JOSHUA MASWI & 145 OTHERS .......................... APPLICANT VERSUS BP TANZANIA LIMITED ........................... RESPONDENT (Original KZIU.10/1043/04/648-&Rf3vision 96 of 2012) ~ 12/12/2013 & 24/12/2013 R.M. RWEYEMAMU,J:- RULING In this application, the Court is being asked to review its decision issued on 4/4/2013 in Revision case Number 96 of 2012. Following ,is a brief background to the dispute leading to the now impugned decision:- 1. A dispute arose between the applicants and their former employer the respondent following a retrenchment exercise. On 7/9/1998, the Labour Commissioner (LC) referred that dispute to the defunct Industrial Court of Tanzania (ICT) where it was registered as ICT Trade Dispute No 7 of 1998 (the dispute). That dispute had a 1 long history in the ICT which ended on 15/4/2003 when it was dismissed. The / applicants filed an application for prerogative orders (registered as HC Misc. Number 55/2003) to have that dismissal order quashed but that application was ordered struck out on 24/2/2004. They then appeal that order to the CAT where it was registered as Appeal Number 97/2004, but ultimately withdrawn on 9/2/2009. 2. More than a year later, the applicants sought an opinion of this Court on how to have the dispute dismissed by ICT 'restored'. That was 1/10/2010. In a decision dated 14/10/2010, Mipawa J., decided that since the dispute was dismissed by the ICT on [1] , I . ' 17/4/2003; and since no application to have the same revised or reinstated ·was ' made, it did not qualify as a dispute pending before the ICT on 5/1/2007 when the I Employment and Labour Relations Act, (ELRA) 6/2004 became operational; as such, the Labour Court had no jurisdiction to d~al with the dispute. The Hon. Judge then ordered the original dispute file referred back to the LC so that the dispute could be ' ' dealt with in terms of section 86 of the ELRA. 3. On 20/5/2011, the applicants referred the dispute to the Commission for Mediation I and Arbitration (CMA). The respondent s'uccessfully raised an objection on ground that the CMA had no jurisdiction to entertain it. 4. That decision aggrieved the applicants and they applied for its revision leading to the now impugned decision of 4/4/2013. In t~at application, the Court considered three questions. The first was whether the Cfy1A's reasons for deciding that it had no jurisdiction to entertain the dispute was p~oper in law. The second was whether the 1 CMA had jurisdiction because the dispute was covered under category of "... pending dispute" under paragraph 13 of the 3rd Sch~dule to the ELRA as amended by Section 42 which inserted a new paragraph 13 (3) (a) & (b). The third question was whether ' 1 the CMA had jurisdiction over the dispute because it was "... a dispute referred to it" by I the LC as per paragraph 13 (5) of Section 42 of the Written Laws (Misc. Amendments Act) 2 of 2010. I 5. The Court decided that; the CMA had noljurisdiction because after being dismissed by the ICT on 17/4/2003, the dispute was not "a pending dispute" as envisaged under I paragraph 13 of the 3rd schedule to the ELRA as amended and that; it was not a I dispute referred by the LC to the CMA in terms of paragraph 13 (5) of the 3rd Schedule to ' the ELRA as amended by Act 2/2010. lihe Court also noted that, the CMA could [2] have had jurisdiction if the LC had referred the dispute to the CMA as a fresh dispute, but that, such was not the position in this case. The dispute was not referred by the LC. The applicants now seek review of the decision (summarized under item 4 above) on ground of error apparent on the face of the record, in terms of Rule 27 (2) (b) of the Labour Court Rules (LC rules) GN 106/2007. In the relev~nt grounds of the supporting affidavit, the applicants averred that:- "5. The reading of paragraph 13 (5) of the 3rd Schedule to the ELRA as amended by Section 42, does not make reference to fresh disputes but, 'The Commission shall have powers to mediate and arbitrate all disputes originating from the repealed laws brought before the Commission by the Labour Commissioner and all such disputes shall be deemed to have been duly instituted under section 86 of the Act'.- this reading does not exclude, but includes, dispute No.7 of 1998. 6. That, we believe if R.M.Rweyemamu J., in her ruling of 4/4/2013 had taken into consideration the proper reading of paragraph 13(5) of the 3rd Schedule to the ELRA as amended, under section 42, disputes between the parties would be heard on merit."(Emphasis mine) At the hearing both parties' were represented by Advocates, Mr. S. Tonya and Ms. S. Salah for the applicant and respondent respectively. Elaborating on the above grounds, Mr. S. Tonya, Advocate for the applicants submitted that, in confirming the CMA decision, the Court did not understand or read correctly para 13 (5) (3) of the 3rd Schedule to the ELRA as amended. According to Counsel, that was sufficient ground for the court to review its own decision. In response, Ms. S, Salah Advocate for the respondent submitted that the applicants had failed to demonstrate that there was an apparenUobvious error in the decision sought to be revised, in terms of rule 27 (2) (b) of the LC rules and as per definition of the term finally settled by the CAT in Chandrakant Joshubhai Patel V Republic, (2004) TLR 281. In rejoinder, Mr. [3] Tonya argued that in the same case, the CAT held that review would lie where the Court did not effectively deal with or determine an important issue of law. This court's powers for review are set out under rule 27 of the Labour Court Rules, I GN 106/2009 which provides, and I quote;-:- 27 (2).Any person considering himself aggrieved 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 of some 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 review of the judgment, decree or order to the Court" After considering the parties arguments in light of the law and practice governing use of court's inherent powers of review, particularly as enunciated in the cited CAT decision, I observe and decide as follows:- a. Under the law, there are three criteria upon which the Court may entertain application for review of its own decision where an appeal is allowed but no appeal has been preferred (as is the position in this case), or no appeal is allowed. These are 1; "... discovery of any new and important matter or evidence ... "; 2; "... on account of some mistake or error apparent on the face of the record ": and 3; "any other sufficient reason" b. The grounds raised by the applicants' and argued at the hearing had nothing to do with criteria 1 above. I could have assumed that the contents of ground 6 of the application, namely that the CMA had jurisdiction because the dispute was "brought before it by the LC. constituted a new and important matter of evidence. Unfortunately, the applicants made no elaboration on the issue at the hearing. Apart from that, it was specifically stated in the impugned decision that dispute was [4] referred to the CMA by the applicants on 20/5/2011 not the LC. For that reason, I have no basis to consider that criteria. c. I also find that the application is not based on criteria 3 - "any other sufficient reason". In his submission in rejoinder, Mr.Tonya argued that review would lie where the Court did not effectively deal with or determine an important issue of law. Unfortunately, he did not go on to demonstrate what important issue of law the Court had failed to determine or deal with. d. The ground averred to under paragraph 6 of the application was that if the Court had made a "proper reading of paragraph 13(5) of the 3rd Schedule to the ELRA as amended ... ", it could have decided that CMA had jurisdiction to hear the dispute on merit. I assume what was meant by the applicants in that clause was that the Court had "failed to determine an important issue in the case"" which in practice amounts to an error apparent on the face of the record as would justify review. In the cited CAT decision, it was clearly stated that an apparent error must be a 'manifest error on the record, which must be obvious and self evident and which resulted in a miscarriage of justice. As rightly submitted by Counsel for the respondent, in trying to establish apparent error the applicants were indulging in a "long drawn process of reasoning on points on which there may conceivably be two opinions" exactly what is not accepted as ground for review in the cited decision of the CAT in Chandrakant. In that decision, the Court cited with approval a summary of existing opinions on review, as expounded by Mulla, (14 ed) that: "... An error apparent on the face of the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions State of Gujarat V. Consumer Education and Research Centre (1981) AIR Guj 223). Where the judgment did not effectively deal with or determine an important issue in the case, it can be reviewed on the ground of error apparent on the face of the record (Basselios v. Athanasius (1955) 1SCR 520) ... But it is no ground for review that the judgment proceeds on an incorrect exposition of the law (Chajju Ram v. Neki (1922) 3 Lah. 127) ... A mere error of law is not a [5] ground for review under this rule. That a decision is erroneous in law is no ground for ordering review. U tsaba V.Kandhuni(1973) AIR Ori. 94. It must further be an error apparent on the face of the record. The line of demarcation between an error simpliciter, and an error apparent on the face of the record may sometimes be thin. It can be said of an error that it is apparent on the face of the record when it is obvious and self-evident and does not require an elaborate argument to be established (Thungabhadra Industries Ltd v·. State of Andra Pradesh (1964) SC 1372).(Emphasis mine) . In view of all the above, I agree with Ms. Salah Counsel for the respondent that, "failure to read and interpret properly paragraph 13(5) of the 3rd Schedule to the ELRA as amended ... ", is not an obvious error, but a legal question requiring elaborate arguments on which (there could conceivably be two opinions). It was indeed the respondent's submission that they entertained a different opinion, namely that the Court had made a correct interpretation of the law. I e. Further, the Court having interpreted the law and decided that; 'the CMA had no jurisdiction because after being dismissed by the ICT on 17/4/2003, the dispute was not "a pending dispute" as envisaged under paragraph 13 of the 3rd schedule to the ELRA as amended and that; and that the dispute was not referred by the LC to the CMA in terms of paragraph 13 (5) of the 3rd Schedule to the ELRA as amended by Act 2/2010' it cannot now have a second look at its own decision and decide that the CMA had jurisdiction in the dispute in the manner it was referred. That legal question can only be properly decided by the Court of Appeal- a route th'e applicants were/are permitted to pursue (as per section 57 of the Labour Institutions Act, read together rule 54 of the LC rules. I In the final result, I conclude that the applicant~ have failed to demonstrate any grounds justifying review and reject this application. ~, court 0/ >-,t', ·,_ . "',.-, \ R.M.Rweyem ~~~1.\ -_, ;, ~ I JUDGE ' I 24/12/2013 . <""1\\1·.~1 A IC,,/\.:, ~ .1;: [6] -~~ ' ' I Date: 24/12/2013 Coram: Hon. Rweyemamu, J For Applicant: Mr. S. Tonya Advocate For Respondent: Absent CC: Ms. Kaale (: Mr. Tonya: I hold Ms. Salah's brief for the respondent. Court: This matter is for ruling. Ruling delivered this 24/12/2013 Right of Appeal explained. R.M.Rweyemamu JUDGE 24/12/2013 [7] i I I