CIVIL APPLICATION NO 265 07 OF 2022 LUSAJO WATSON MWAKASEGE VS TANZANIA POSTS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARIJA. J.A.. MGEYEKWA. J.A. And MLACHA. J J U CIVIL APPLICATION NO. 265/07 OF 2022 LUSAJO WATSON MWAKASEGE.............................................. APPLICANT VERSUS TANZANIA POSTS CORPORATION....................................1st RESPONDENT DOMINIC A. KALANGI........................... ........................ 2nd RESPONDENT (Application for review of the decision and drawn order of the Court of Appeal of Tanzania at Mtwara) (Ndika, Kerefu. Kente, JJA.) dated the 26th day of March, 2022 in Civil Appeal No. 12 of 2022 RULING OF THE COURT 26th February & 6th March, 2025 MWARIJA. J.A.: By a notice of motion lodged on 19th May 2022, the applicant herein, Lusajo Watson Mwakasege brought this application moving the Court to review its decision in Civil Appeal No. 12 of 2022 (Ndika, Kerefu and Kente, JJA). In the decision, which was handed down on 26th March 2022, the Court allowed the appeal filed by the respondent against the decision of the High Court of Tanzania (Labour Division) in Revision No. 10 of 2018. The revision before the High Court was against the decision of the Commission i for Mediation and Arbitration (CMA), Lindi. The second respondent, who was the former employee of the first respondent in the capacity of a Regional Manager, had his employment contract terminated on the ground of gross misconduct and dishonesty. He complained before the CMA that the termination was both substantially and procedurally unfair. In its decision, the CMA ruled against the second respondent. It found that, his termination was substantially and procedurally fair. On revision, the High Court found no merit in the first respondent's contention that the CMA had erred in its decision affirming the findings that his employment was fairly terminated. Notwithstanding that finding, the High Court proceeded to award compensation to the second respondent on the ground of length of time he had worked with the first respondent. He was awarded a compensation of six months' salary. The first respondent was aggrieved by the High Court's decision to award the above stated amount of compensation to the second respondent and thus appealed to this Court hence the decision giving rise to this application. In his notice of motion, brought under, inter alia, rule 66 (1) and (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) and which has 2 been supported by his affidavit, sworn on 11th May, 2022, the applicant seeks a review of the Court's decision on the following grounds, that; "(i) The decision was based on manifest error on the face o f the record resulting in the miscarriage o f justice. (ii) The Court's decision is a nullity'. At the hearing of the application, the applicant appeared in person, unrepresented. The first respondent was represented by Ms. Luciana Kikala, learned State Attorney. The second respondent was absent. According to the notice of hearing sent to him by the process server, the said respondent refused service. In the circumstances, the matter proceeded in his absence in terms of rule 63 (2) of the Rules. From the record, after service upon it of the application, through its counsel, on 12th July 2022, the first respondent lodged a notice of preliminary objection consisting of three grounds that; "(i) The [application] is incompetent for want o f the applicant's locus standi to move the Court to review [its decision] as the applicant was not a party to Civil Appeal No. 12 o f 2022 between 3 Tanzania Posts Corporation versus Dominic A. Kalangi, whose judgment was delivered on 2&h March, 2022. (ii) The verification clause in the affidavit in support o f the notice o f motion is defective for failure to disclose the source o f information. (iii) The affidavit in support o f the notice o f motion is incompetent for containing legal arguments and conclusions as seen in paragraphs 5 and 6 (a), (b), (c), (d), (e), (f) and (g) o f the affidavit" Guided by the rule of practice, we proceeded to begin with the hearing of the preliminary objection. At the outset, Ms. Kikala informed the Court that she no longer intended to argue ground (ii) thereof and thus abandoned it. Submitting on ground (i) of the objection, Ms. Kikala was brief but focused. She argued that, the application is incompetent because the applicant was not a party to the appeal giving rise to the decision which he sought to be reviewed. The learned State Attorney stressed that, a person who was not a party to the appeal before the Court may only apply for revision to 4 challenge the resultant decision in case he or she found to have been prejudiced by such decision. To bolster her argument, she cited the decisions of the Court in the cases of Attorney General v. Tanzania Ports Authority and Another, Civil Application No. 467/17 of 2016, Attorney General v. Tanzania Ports Authority and Another, Civil Application No. 87 of 2016 and Chief Abdallah Said Fundikira v. Hillal A. Hillal, Civil Application No. 72 of 2002 (all unreported). According to the learned State Attorney, in an application for review, only a person who was a party to the decision has locus standi to challenge it. Responding to the submissions made by Ms. Kikala in support of ground (i) of the preliminary objection, the applicant who informed us that he is an advocate by profession, formerly a public servant, opposed the contention that he lacked locus standi to prefer the application. He argued that, under rule 66 (1) of the Rules, any person has the capacity to challenge a decision of the Court by way of an application for review even though he or she was not a party to the appeal from which the decision sough to be reviewed arose. 5 On the submission that, the available avenue for a person who was not a party to the case but who found that the decision had adversely affected him, is to apply for revision, the applicant argued that, since there is no law which prohibits a person who is not a party to the cases but who had been aggrieved by the decision of the Court, may apply for review under rule 66 of the Rules. On the cited decisions, he argued that, the same are not applicable to the particular circumstances of the application at hand. When his attention was drawn to the use of the words "a party' in rule 66 (1) (b) of the Rules, he conceded that only a party to the appeal from which the decision originated has focus standi but hastened to submit that, as for the other paragraphs under rule 66 (1), which are silent on who is to prefer an application for review, any has the capacity to do so. He added that, he intends to challenge the Court's decision that under section 32A of the Public Service Act, Chapter 298 of the Revised Laws (the Act), CMA lacks jurisdiction to entertain employment disputes involving public servants who have not exhausted the remedies provided under the Act. According to paragraph 4 of his supporting affidavit, the decision, which he contends to be erroneous, is prejudicial to his application for extension of time to appeal hitherto pending in the High Court. He preferred the pending application after having failed to appeal within time against the decision of the High Court of Tanzania at Iringa, which arose from Labour Dispute No. CMA/NJ/AUG/43/2019. The High Court upheld the decision of the CMA dismissing the labour case for being incompetent in terms of section 32A of the Act. On those arguments, the applicant prayed that preliminary objection be overruled. We have duly considered the submissions of the learned State Attorney and the applicant on ground (i) of the preliminary objection. The discord between them is on whether the applicant, who was not a party to the case giving arise to the application at hand, has the right or capacity that challenge the decision by way of a review under rule 66 (1) and (2) of the Rules, which provides as follows: "66 (1). The Court may review its judgment or order, but no application for review shall be entertained except on the following grounds- (a) the decision was based on a manifest error on the face o f the record resulting in the miscarriage o f justice; (b) a party was wrongly deprived o f an opportunity to be heard; (c) the Court's decision is a nullity; (d) the Court had no jurisdiction to entertain the case. (e) the judgment was procured Illegally, or by fraud or perjury. (2) An application for review shall, subject to necessary modifications be instituted in the same mode as a revision" The interpretation by the applicant of the provisions which have been reproduced above was that, filing of an application for review to challenge a decision of the Court on the above stated grounds is not restricted to the parties to the case. Thus, according to him, any person, regardless of whether hewas a party or not, has the right of bringing an application for review. When hisattention was drawn to paragraph (b) of rule 66 (1) of the Rules which states categorically that, it is a party to the case who is entitled to apply for a review of the judgment, the applicant conceded that, under that provision, a stranger to the case cannot apply for a review of a judgment in which he was not a party. He was quick however, to argue that, he has not moved the Court under that provision but from his notice 8 of motion, his application is based or paragraphs (a) and (c) of rule 66 (1) of the Rules. With respect to the applicant, we are unable to agree with his interpretation of rule 66 (1) of the Rules as regards competent persons to apply for review of the Court's judgments. In our considered view, a person who was not a party to the case cannot bring an application for review. The fact that a word "party" is not used in paragraphs (a) and (c) of rule 66 (1) does not entitle a person who was not a party to intrude in the case and seek review of judgment. The enabling provision cannot be severed such that, part of it can carter for a party to the case while other parts allow a person who was not a party to have the capacity to apply for a review. Our interpretation that a person who was not a party to the case lacks the capacity to apply for review is fortified by the provisions of sub­ rule (4) of Rule 66 of the Rules which stated that: " 6 6 - ( 1) . . . (2)... 9 (4) Copies o f the notice o f motion for review shall be served on the other party or parties as the case may be within fourteen days from the date o f and the party fiiing the notice shall file proof o f service with the court". [Emphasis added]. It is clear from the wording of that provision as emphasized above that, it is a party to the case who has the capacity to file an application by way of a notice of motion, a copy of which must be served to the other parties. If a stranger to the case had that right, then the rule should not have specified a party alone but also an interested person. We therefore agree with the learned State Attorney that the applicant lacks locus stand to apply for a review of judgment arising firm a case to which he was not a party. Before we conclude, we find it instructive to state that, the power of review, which stems from the Court's inherent jurisdiction, is of a limited scope. It is exercised beyond the slip rule with limitations. It is only where a decision displays an apparent manifest error on the face of the record which, if not corrected would result in a miscarriage of justice. See the case 10 of Transport Equipment Limited v. Devram P. Valambhia [1998] T.L.R. 89. It is limited in scope because of the public policy that, litigation must come to an end. Considering that doctrine and the duty of ensuring that justice is done, in the persuasive Kenyan case of Nguruman Limited v. Shampele Group Ranch and Another [2014] eKLR, stating the importance of the doctrine of finality of litigation and the interest of justice, the Court of Appeal (Bosire, JA.) quoted a passage from the case of Jasbir Singh Rai and 2 Others v. Tatlorchan Sigh Rai & 4 Others, Nairobi Civil Appeal No. 307 of 2003 (154/2003 UR) where it was stated in part that: " This is the doctrine which enables the Court to say litigation must end at a certain point regardless o f what the parties think o f the decision which has been handed down. It is a doctrine on principle based on public interest. There are instances where the public interest principles are in conflict and the Court must balance one aspect against another and decide which one supercedes the other o f course depending on the facts and circumstances o f each case". ii As stated above, the Court's power of review which was previously confined to slip rule provisions but now exercisable within the limits provided for under rule 66 of the Rules. As held in the case of Tanzania Transcontinental Co. Ltd. v. Design Partnership Ltd, Civil Application No. 62 of 1996 (unreported) the Court observed as follows: "The Court will not readily extend the list o f circumstances for review, the idea being that the Court's power o f review ought to be exercised sparingly and in most deserving cases, bearing in mind the demand o f public policy for finality and for certainty o f the law as declared by the highest Court o f the Land". Given the above stated position, let alone our finding that the Rules do not entitle a person who is not a party to the case to apply for a review, deciding to the contrary will amount to setting a dangerous precedent and a breach of the finality doctrine of leading to uncertainty of the Court's decisions. For these reasons, we uphold the first ground of preliminary objection. Since our finding on that ground suffices to dispose of the 12 matter, it is not necessary to consider the second ground. In the event, we strike out the application for being incompetent. Each party to bear its own costs. DATED at DAR ES SALAAM this 5th day of March, 2025. A. G. MWARD A JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Ruling delivered this 6th day of March, 2025 in the presence of the Appellant in person, Ms. Luciana Kikala, learned State Attorney for the l 5t Respondent and in the absence of the 2nd Respondent, is hereby certified as a true copy of the original.