juwata another vs board of external trade 2002 tzhc 2037 14 april 2002

IN THE HIGH COURT OF TANZANIA AT DAK r_S .SALAMI MISC. CIVIL CAGE KO, T °F 1. «™ata ' _ APPLL7T N? 2. NATHANIEL MLAKI ) Versus ... - BOARD OF EXTERNAL TRADE , . . RESPONDENT R U L I N G Kjmaro. J« This is a duplicate file which shows that sometimes in 1986 r the then JUWATA, did, on behalf of NATHANIEL MLAKI file a chamber application in this court seeking for an order for certiorari to remove into the High Qourt and quash the decision of the Permanent Labour Tribunal made on 10th February, 1986 as well as an order for mandamus against the Permanent labour Tribunal requiring it to hear and determine Trade Dispute No. 16 of 198 ^. Documents supplied into this court by learned -'-•dvocace Mrs, G, Mulebya, under the direction of this court, show,5 that Trade Dispute No. 16 of 1984 was filed at the Permanent Labour Tribunal. It was dismissed on a preliminary objection and the dismissal was made by the Permanent labour tribunal (Hon. Justice Mackanja) on 10 th February 1986 . Mrs. Mulebya Advocate has been having the conduct of this case throughout. She is appearing for the Board of External Trade who are the respondents. The documents supplied by tier have boon very very useful in answering crucial questions which ■nr.e to my mind when I first went through the file and noted, what was missing. Having noted that My Brother Judge Kazimoto dealt with the matter and mn&e a ruling on 2/ V 8 7 , 1 was doubtful whether it was proper to have the case still going on. The doubts which I had made ne to direct +he advocates who are appearing in this case (Mr* Muccadam for the applicant and Mrs. Mulebya for the respondent) to adress the court on the propriety of having the case still pending. Each of them has complied with the order. I acknowledge efforts made by each of them in the preparation of their submissions. •. • «/2 Before going to their submit sions« it is worthy showing what took place after the Permanent labour Tribunal had given its ruling. The Permanent Labour Tribunal upc.e3c- ? preliminary objection that it had no jurisdiction to entertain the trade 'Hspute# Following the decision of the Peimanent Iebour Trlravi.-l, the rppxican-cs filed a Chamber Application seeking for prerogative orders of certiorari and mandamus os indicated at the begining of this ruling. My Brother Judge Kazimoto Cos he then *»s) who heard the Chamber Application upheld a prelimimry objection raiead by Mrs. I-iulebya Advocate that the*aj%>lic£t'ion was incompetent because no prior leave of the court was sought and granted before the application for prerogative orders was filed. The order was made on 2/04/87« Subsequent to the decision cf My Brother Judge Kazimoto, Mr. Muccadam filed what he called an TENDED CHAMBER APPLICATION wherein he sought for two orders: (i) That the applicant be allowed to file the application and (ii) -m order of certiorari to remove to this Hon. court the decision of tl.2 f'.-ruanent labour Tribunal Trade Dispute No. 1o of 1984 and annual it. The application was filed on 23i"*d November, 19 8 7 , more than seven months after the decision of my Brother Judge Knsiiaoto. The application was dismissed on 2^-th August, 1990 because of non-appearance of Mr. Muccad3 in and his client. Muccadam filed an application seeking for restoration of the application. Both advocofas concede'that the application has not been heard todate, * One of the reason.0 being udsplncenent of the original case file. Well, misplacement of the original file notwithstanding, the main question which has been striding my mind is, was ic proper for Mr. Muccadam to file what he called an amended chamber application after my Brother Judge Kazimoto had dismissed the original application which was railed? Mr. Muccadam, submitted that since the original application was not dismissed, it was proper for him to file what he called an TENDED CHAMBER APPLICATION. Mr* Muccadam submitted,further that leave was rranted to file the application for prerogative orders and that since leiive was granted he cautioned that judges of saae jurisdiction can. not overrule each other. That what should be heard is tho application for setting aside the dismissal* according to M;.** Muccadara, tho l"s'‘ vir*. •••fcc cose wos called for j3 hearinc before my Brother Judge Kalegeya hxs instructions to v,he advocates were to do a recearch on vJiether the application for prerogative orders should be heard by a single judge or a pa el of judges. It v/as further submitted by Mr* Muccadam that the issue of the dismissal of the rain cause \-fhs neither raised by aty Brother Judge Kalogeyo ncr by her colleague - Mrs. i’iulebya. Mrs. Mulebya on the other hand disputed that leave to file an application for prerogative orders has ever been granted and that failure by Mr. Muccadara to mention the name of the Judge who granted the application nor submit the said order in court fortifies her point. Mrs. Mulebya said the amended chamber application which v b s filed subsequent to Hon. Judge Kozinoto giving Ins ruling on 2nd April, 19^7 apart from not being accompanied by an affidavit and a statement was filed out of time. That the respondent had raised a preliminary objection pointing out the defects but the preliminary objection was not heard because the application was dismissed because of non-appearance of the applicant and his advocate. The res'ponse of Mr©» Mulebya to the directiongiven by this court on 13 th November, 2001 isthat after Hon. Judge Ka^.imoto had declare the original application incompetent, it was not proper for Mr. Muccadam to re—file the application because there was contravention of the law. The alternative argument given by Mrs. Mulebya is that even if the ruling of Hon. Judge Kazimoto can be interpretsted that i^ left room for the applicant to file a fresh application, then the fresh application should have been filed within the time limit which is allowed by the law. Regarding what transpired in court when the advocates appeared before Hon. Justice Kalegeya, ^r. Mulebya denied that they were given instruction to research on whether the application could be heard by a single judge or a panel of judges. A In brief that wns the response of the advocates tc the instructions given by the court on propriety of having this case still going on. While. I appreciate the submission node by Mr, l'iuccadan, -l 'cotally disogree v.dth him tl'ot it is proper f '’-o-a to be sti.il going on. It is true my Brother Judge Kazimoto docloreci th:• origi. 'l application filed incompetent vdthout ordering its dismissal. Tint however aid not leave room for the a pliojnt tc- toko ojvonta.-'o of the ommission of the word dismissal, It is common' ki?owled?te“',th'"'.t once .an issue *is'- declared inconpetent because of contravention of the lew, a person can not re file the some vdthout complying with the law. This is what Mr. Muccadain has done. For the original application, the low v..is not complied with. Leave- woo not sought -nd obtained before the application. This meins- . that the application was closed after Hon. ^udge Kaz-inoto gave his ruling. Fcr the sake of argument only, even if roan was left for filing a fresh a-,-plication, then the law hod to be complied with. Leave had to be sought and obtained within the time limit allowed by the law. Wheat Mr. Muccodam did vns to file on Amended Chamber Application. The iD ia e d ia te question arising is which application v.os he omending while there was nothing before the c o u r t? Who granted permission to make the amend-mont and how could that omondinent be allowed without having any application before the court. Mr. Muccadam has not given an answer to this important question. Mr. Muccadam submitted that leave to persue the main application was granted. Mrs. Mulebya has disputed that leave was .granted. Although Mr. Muccadan filed a rejoinder he has not mentioned when leave was granted and by which judge. This means thatleave has hevor been granted. Failure by him to mention the dateand the Judge who granted leave is sufficient evidence that no leave has ever been granted -and the position remains to be the one which has been given by Mr. Mulebya. While I thank Mr, Muccodoa for the caution given in respect of judges with same jurisdifcion, I roust assure Mr. Muccadam that he need not worry because I am well aware of it and I cannotgo beyond limitations where circumstances do not permit. In this particular case however, my Brother Judge Kazimoto having decided the original application on 2nd April, 1987 the matter was closed. It could neither be revived by a fresh a-plication (because litigation would have taken years in court) nor could it be revived by an amended .../5 S 5 : chamber application because therew t s no application v.'hich nvs still pending which could beamended. This brings ne to3 concluei' n th"t nfter thedecision of my Brother <Jud~c Kazimoto on 2nd April 198? ^ natter be-oame closed, The a■pii cation for restoration of the ch?Kber application is struck out. It is accordingly ordered. ^ ^ / ' y \ yV .* N.P. ICimro * ■ JUIXT^ 5 / 02/2002 14/5/2002 Cora ms N,P. Kiir-ro, J. Mr. Muccodam ~ For the 1 nt applicant For the 2nd applicant Firs. Mulebya For the respondent Courts 2ulinp delivered, for Order; The application^, 'restoration is struck out with costs. N.Po Kinaro JUDGE 14/0^.2002