jw bukanga secondary school vs crabery mack ballu 2020 tzhc 1151 29 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT MUSOMA MICL. LABOUR APPLICATION NO. 35 OF 2019 {Arisingfrom the judgement of the High Court of Tanzania in Labour Revision No. 8 of 2018) J.W. BUKANGA SECONDARY SCHOOL.............................APPLICANT VERSUS CRABERY MACK BALLU.................................................... RESPONDENT RULING Date of Last Order: 2 9 hApril, 2020 Date of Ruling: 2 9 hMay, 2020 KISANYA, J.: This Court has been moved under rule 45 of the Court of Appeal Rules, GN. No. 368 of 2009 to grant leave to appeal to the Court of Appeal against the decision delivered by Honorable Galeba, J., in Labour Revision No. 8 of 2018. On 24th April, 2020, the Court ordered the application to be disposed of by way of written submission. As I was composing the ruling, I noted that leave to appeal to the Court of Appeal is not required in labour matters. Therefore, I asked the parties to address me on the competence of this application. The applicant was represented by Mr. Frederick Marwa, Principal Officer and the respondent failed to appear. W hen Mr. Frederick was called upon to address the Court on the competence of this application, he urged the Court to decide the matter in accordance with the law. He submitted that, they thought that the leave to appeal is required. As noted herein above, this application has been made under rule 45 of the Court of Appeal Rules, GN. No. 368 of 2009. This provision reads as follows: “45. In civil matters- (a) where an appeal lies with the leave of the High Court, application for leave may be made informally, when the decision against which it is desired to appeal is given, or by chamber summons according to the practice of the High Court, within fourteen days of the decision; (b) where an appeal lies with the leave of the Court, application for leave shall be made in the manner prescribed in Rules 49 and 50 and within fourteen days of the decision against which it is desired to appeal or, where the application for leave to appeal has been made to the High Court and refused, within fourteen days of that refusal. ”[.Emphasize supplied]. In the light of the above provision, application for leave is preferred where the appeal to the Court of Appeal lies with leave of this Court. Now, the issue is whether the leave to appeal is required if a party is aggrieved by the decision of the High Court in labour matters. The answer to this issue is found in section'57 of the Labour Institutions Act, 2004 (as amended). This provisions governs appeals against the decision of the Labour Court to the Court Appeal by providing that: "Any party to the proceedings in the Labour Court may appeal against the decision of that Court to the Court of Appeal of Tanzania on a point of law only. The above provision has been interpreted to the effect that, a person aggrieved by the decision of the Labour Court has a direct right to appeal to the Court of Appeal, provided the appeal is based on point of law. This position was underscored in Remigious Muganga Versus Barrick Bulyanhulu Gold Mine, Civil Appeal No. 47 of 2017, CAT at M wanza (unreported) when the Court of Appeal held that: The section, gives a party to nthe proceedings in the Labour Court" unfettered right to appeal to this Court. The provision does not restrict that right to the decisions made under any specified laws. It allows a party to the proceedings conducted in the Labour Court to appeal regardless o f the law under which those proceedings were based. The only restriction is that the appeal must be on a point of law only. The section is couched in a way that it accommodates any proceeding conducted in the Labour Court. [Emphasize supplied]. The Court of Appeal went to hold as follows: “On the basis of the considerations made above, it is our view that the section allows a party, who is aggrieved by any appealable decision arising from the proceedings o f the Labour Court, to appeal without recourse to the provisions 3 o f S. 5 (1) (c) o f the AJA, notwithstanding that the proceeding giving rise to that decision was taken under the CPC. ” [Emphasize supplied]. As stated herein, the application at hand originates from the decision of this Court (Labour Court) in Labour Revision No. 8 of 2018. Guided by the above position of law, I am of the considered opinion that that the present application is incompetent. The Court cannot determine whether the applicant should file an appeal or not in the circumstances where he entitled to appeal without obtaining the leave. For the aforesaid reason, this application is struck out. I make no order as to costs because this is a labour matter. Dated at M USOMA this 29st day of May, 2020. E. b. J<usanya JU D G E 29/5/2020 Court: Ruling delivered this 29th day of May, 2020 in the presence of Mr. Fredrick Marwa, Principal Officer for the Applicant and in the absence of the respondent. 4