mgori odero kyangwa vs chief of difence forces others 2008 tzhc 153 30 december 2008

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM CIVIL CASE NO. 142 OF 2008 MGORI ODERO KYANGWE.................................... PLAINTIFF VERSUS THE CHIEF OF DEFENCE FORCES THE PERMANENT SECRETARY DEFENDANTS > MINISTRY OF DEFENCE THE ATTORNEY GENERAL RULING Ruqazia, J. The applicant had filed a suit against the respondents which was dismissed for being time barred. He has now filed an application for review on ground that he has made discovery of a new and important matter to wit, the decision of the Court of Appeal which was not within his knowledge at the time of the dismissal of the suit. The applicant referred to the Court of Appeal decision in the case of Major Charles John Kazeze (Ret) vs The Attorney General and 2 Others Civil Appeal No. 106 CAT - (unreported). In that case it was held, inter alia, i "Since the enrolment of the appellant created between him and the second and third respondent a contract of service, the next issue we need to determine is whether legal proceedings emanating from the termination of such service are governed by any specific law ........... Such proceedings are governed by the ordinary civil laws". The applicant also referred me to page 9 of the judgment where the court stated: "Under the Schedule to Cap. 89 part 1 item 7, the period of limitation for filing proceedings falling under a contract is six years". It was submitted that since the facts in the above case are similar to the instant case, it is only fit that this court reviews its decision and restore the suit to be heard on merits. 2 In rebuttal, the respondent asserted that since the suit was dismissed for being time-barred under section 63 of The National Defence Act, Cap. 192, R.E. 2002, hereinafter referred to as the Act, that decision has to stand. It has to stand because the Court of Appeal did not address its mind to the provisions of section 63 of Cap. 192. Indeed this is what the court said at page 6: "In the alternative, she urged us to take judicial notice that under section 63 of the National Defence Forces Act, Cap. 192, the limitation period for filing suits is six months../' The court reacting to this submission stated: "With respect to the learned Senior State Attorney, this matter was not raised in the trial court and so it cannot therefore be raised at this appellate level. For this reason we need not consider it." Due to this reason the respondent contended that the principle governing section 63 of the Act is as was enunciated in the case of Yussuf Vuai Zyuma vs Mkuu wa Jeshi la Ulinzi na Wenzake 3 Civil Appeal No. 15 of 2009 CAT (unreported) at p.5 where the court stated: "It is not in dispute .... that matters of defence including recruitment and retirement of career soldiers like the appellant are governed by the National Defence Act, Cap. 192 which law is applicable both to Tanzania Mainland and Tanzania Zanzibar" The respondent also invited to page 6 of the judgment where the court said: "We entirely agree....... the appellant did not institute the suit within the prescribed time of six months. By instituting the suit beyond the time allowed by law, the appellant was time bared. The courts below ought not to have entertained the matter". As it is apparent, the applicant is entirely relying on Major Kazeze's case {supra), but, as it is evident, in that case, the court did 4 not consider section 63 of the Act which deals with matters pertaining to defence forces including the issue at hand. Conversely, the same court when addressing its mind to the provisions of section 63 in the Yussuf Vuai case {supra), it reached a decision that the prescribed period for instituting a suit is six months. In view of the foregoing, I find no ground for review to reverse my earlier decision. The application is therefore dismissed with costs. P.A. RUGAZIA JUDGE