justine baruti vs cma cgm tanzania limited 2023 tzca 17914 7 december 2023

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA, 3.A.. KAIRO. J.A., And MURUKE. J.A.^ CIVIL APPLICATION NO. 487/18 OF 2023 JUSTINE BARUTI.............. .................... ............................ ..... APPLICANT VERSUS CMA-CGM TANZANIA LIMITED ..... ............................................ RESPONDENT (Application to strike out a notice of appeal from the Judgment and Decree of the High Court of Tanzania Labour Division, at Dar es Salaam) f Mashaka. J.1 ) dated the 23rd day of May, 2018 in Revision No. 28 of 2016 RULING OF THE COURT 3rd November & 7th December, 2023 MURUKE. J. A: The applicant, Mr. Justine Baruti is moving the Court to strike out a Notice of Appeal lodged by the respondent against the judgment of the High Court, Labour Division at Dar es Salaam, delivered on 23rd May, 2018, in Revision Application No. 28 of 2016. The background facts giving rise to this application are that, the applicant was employed by the respondent since 15th May 2005 as logistic officer. He was later promoted and transferred to Tanga region as Operations Manager Tanga/Mtwara with an obligation to report to Deputy General Manager. He served in that position until 8th September, 2015 when his employment was terminated. Being aggrieved by the termination, the respondent referred the matter to the Commission for Mediation and Arbitration (CMA). The Arbitrator, having found that the termination was unfair, issued an award dated 25th November, 2016 in which the applicant was ordered to be reinstated. In the alternatively the respondent was ordered to pay compensation in the form of twelve month's salaries, severance pay, one month's salary in lieu of notice and one year leave emolument. Dissatisfied, the applicant moved the High Court, Labour Division for revision of the award. The Court found no merit in the revision, which, it eventually dismissed on 23rd May, 2018. On the first June, 2018, the respondent lodged the notice of appeal and request for copies of the judgment and decree. Vide a letter dated 23rd May, 2019, the High Court Labour Division Tanga invited the applicant to collect copies of the judgment and decree. On 24th May, 2019 Bowmans Tanzania for the respondent wrote to High Court Labour Division Tanga to request some other missing documents. Certificate of delay dated 11th December, 2019 and complete set of the document were issued to the 2 applicant. Time from 31st May, 2018 to 11th December, 2019 was excluded by the Court Registrar. On the 5th February, 2020, the respondent lodged memorandum of appeal to the Court. On 27th October, 2021 the Court of Appeal struck out the appeal for being supported with certificate of delay issued by the High Court Labour Division, Tanga instead of Dar es Salaam. On 28th October, 2021 the respondent requested for a copy of the said order of the Court. On 5th November, 2021 a copy of the Court order was supplied to the respondent. On 10th November, 2021 the respondent lodged application seeking for extension of time to refile the appeal to the Court that was granted on 15th September, 2022. Notice of Appeal was then filed on 21st September, 2022, and the letter requesting for certified copies of Proceedings, Judgment and decree in Revision application No. 28 of 2016, was also received by the High Court Labour Division on 22nd September, 2022. The applicant, then filed the present application on 27th June, 2023. The ground upon which the applicant relies in the notice of motion is that, the respondent has failed to take essential steps in the appeal within the prescribed time, as averred at paragraph 4 of the affidavit in support of application that: 3 "On 21st September, 2022 the applicant lodged Znotice o f appeal unfortunately until to date the applicant has not lodged memorandum and record o f appear. At the hearing of the application, Mr. Emmanuel Ndanu and Mr. Waziri Mchome, both learned counsel represented the applicant and respondent respectively. The applicant's counsel in his submission adopted notice of motion and attached affidavit to form part of his submission, amplified notice of motion and averments at paragraph 4 of the affidavit in support of the application. In essence, he submitted that, the respondent has remained for six years since he filed a notice of appeal without taking steps, while she was supplied with necessary documents already, when filed her earlier appeal that was struck out. In reply, the respondent's counsel Mr. Waziri Mchome, apart from adopting an affidavit in reply, submitted that, the respondent is waiting for copies of proceedings in Misc. Labour Application No. 438 of 2021 in which she was granted extension of time to file a Notice of appeal, which is a relevant document for intended record of appeal, to be able to file the 4 intended appeal as evidenced in annexture CMA2 and CMA3 respectively attached to the affidavit in reply. In rejoinder, Mr. Ndanu, insisted that, the respondent's counsel ought to have made a follow up step with the Registrar, not just to sit and wait while the applicant is out of employment for almost eight (8) years. He thus urged the Court to strike out the respondent's notice of appeal for failure to take essential step. We have scrutinized the material on record and considered the submissions for and against the application. At the outset, we would reiterate that, the Court power to strike out a notice of appeal is derived from rule 89 (2) of the Rules which provides that: "Subject to the Provisions o f sub ruie (X), any other person on whom a notice o f appeal was served or ought to have been served, may at any time, either before or after the institution o f the appeal, apply to the Court to strike out the notice o f appeal, or the appeal, as the case may be, on the ground that no appeal lies or that some essential step in the proceedings has not been taken or has not been taken within the prescribed time" 5 In the light of the above provision of the law, the applicant had to show; one, that the appeal has not been instituted within the prescribed time or two, some essential steps in the proceedings have not been taken or have not been taken within the prescribed time. As to which steps ought to be taken by the intended appellant after filing notice of appeal, it was discussed in the case of Asmin Rashid v. Boko Omari [1997] T.L.R. 146, the Court stated that: "The essential in prosecution o f an appeal as envisaged by Rule 83 (now Rule 89 (2) were steps which advanced the hearing o f the appeal and not explanations for delays. In replying affidavit, sworn by Mr. Jerry Eseko, the respondent averred at paragraph 8, 9, and 10 that: 8. The respondent duly submitted a Notice o f Appeal within the stipulated timeframe on 21st September, 2022, and concurrently lodged a formal request for certified copies o f the judgment, decree, exhibits and the record o f proceedings on 22nd September, 2022. Copies o f both the Notice o f Appeal and the corresponding letter are exhibited here and collectively marked as "CMA-2." 6 9. In accordance with legal requirements, the respondent's legal representative, Bowmans Tanzania, diligently pursued the aforementioned request within 14 days following the lapse o f the initial 90-day period, as evidenced by a letter dated 28h December, 2022. A copy o f the letter dated 2&h day o f December, 2022 is exhibited here and marked "CMA-3". 10. Paragraph 4 is admitted to the extent that the respondent was granted an extension o f time to file its appeal and the notice o f appeal was lodged on 21st September, 2022. The respondent reiterates its averments made in paragraphs 8 and 9 above. It has been unable to lodge its memorandum and record o f appeal for the sole reason that it is still waiting on the Registrar to issue a fresh record o f proceedings and certificate o f delay. The respondent relied on the facts in the above paragraph of the affidavit to show that she took essential steps. For clarity, Rule 90 (5) of the Rules provides that; "Subject to the Provision o f Sub rule (1) the Registrar shall ensure a copy o f proceedings is ready for delivery within 90 days from the date appellant requested for such copy and the appellant shall take steps to collect copy upon being informed 7 by the registrar to do so, or within fourteen (14) days after the expiry o f the ninety (90) days" Rule 90 (5) of the Rules places an obligation to the intending appellant who has requested for the relevant documents for appeal purposes and who on expiry of ninety (90) days has not been informed by the Registrar that the requested documents are ready for collection, to remind the Registrar about his request to be supplied with the documents. In the replying affidavit the respondent attached the letter dated on 22nd September, 2022, requesting for certified copy of the Judgment, Decree and Proceedings marked CMA-2. After lapse of the initial 90 days, the respondent wrote another letter dated on 28th December, 2022 marked CMA-3 to remind the Registrar to supply her with requisite documents for intended appeal. In our view, the respondent took essential steps. It was the duty of the Registrar to furnish the respondent with the documents for appeal purpose once they were ready for collection. On the case at hand, that was not done. For this reason, we think that the circumstances of the case do not warrant us to invoke Rule 89 (2) of the Rules. 8 In the upshot, we find no merit in the application and proceed to dismiss it. This being a labour matter not amenable to awards of costs, we make no order on costs. DATED at DAR ES SALAAM this 29th day of November, 2023. G. A. M. NDIKA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL The Ruling delivered this 7th day of December, 2023 in the presence of Applicant in person, unrepresented and Mr. Mohamed Zameen Nazarali, learned counsel for the Respondent, is hereby certified as a true copy of the original. ---- \ C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 9