20140904 TZHC Dar es Salaam2

' fl • IN THE HIGH CO-µRT OF TANZANIA AT DAR ES SALAAM. MISC. CIVIL APPEAL NO. 3 OF 1998 OTTU ON BEHALF OF MILANZI AND OTHERS ...................... APPLICANT VERSUS BLANKET MANUFACTURERS LTD ....................................... RESPONDENT RULING 25/10/2012 & 04/09/2014. This is a ruling on an application for the following orders; for leave to appeal to the Court of Appeal of Tanzania (CAT) against the Judgement of this court (Kalegeya, Mandia and Shangwa, JJJ), in Civil Appeal No. 3 of 1998, delivered on 17/08/2007 and dismissing the applicants' appeal, Costs of the application and any oth~r relief the court may deem fit to grant. This application was before another Judge of this court; he heard it by way of written submissions and fixed it for ruling. But later, he discovered that the appeal resulting to this application had been argued by a firm of advocates in which the Judge had served as a Senior Partner (advocate) before he was appointed a Judge of this Court in 2010, he then rightly disqualified himself from recording the ruling (proceedings date 8th and 12 th of August, 2013). The matter was then assigned to me for recording the ruling, hence this belated ruling. Before deciding on this application, I will briefly demonstrate the background of this matter for purposes of a smooth understanding of this ruling. Back in 1998, the then Industrial Court of Tanzania (ICT) made an award in respect of a trade inquiry No. 10 of 1996 between the parties in this application. The same had been referred to the ICT by the Labour Commissioner under s. 8 (a) of the former Industrial Court Act 1967. The ICT found the reference devoid of merits and dismissed it. That dismissal led to the appeal to this court. In tum, this court dismissed the appeal hence this application. Page 1 of 6 • In the application at hand, the applicant, OTTU (ON BEHALF OF MILANZI AND OTHERS) applies against the respondent, BLANKET MANUFACTURERS LTD, under s. 5 (1) ( c) of the Appellate Jurisdiction Act, Cap. 141 R. E 2002, Rule 43 (a) of the Court of Appeal Rules, 1979, s. 95 of the Civil Procedure Code, Cap. 33 R. E. 2002 and any other enabling provisions of the law .. The application is supported by an affidavit sworn by one Jul!us Kalolo Bundala, advocate for the applicant. The affidavit briefly and basically states that the intended appeal is full of merits and relates to points of law and mixed points of law and facts deserving the determination by the CAT. The affidavit also states that the requisite hotice of appeal has already been filed. It further deponed that this court erred in law and facts in dismissing the appeal and in holding thus; a. The voluntary agr~ement registered on 5/5/1995 was not applicable to the applicants. b. The retrenchment exercise was effective from 1/3/19Q5. c. The Industrial Court had rightly evaluated the evidence before it. In opposing the application, the learned counsel for the respondent, ·Mr. Cornelius Kasiya Kariwa filed a counter affidavit that essentially disputed the facts deponed into the affidavit and asserted that the appeal will be a mere academic exercise as factual and legal environment have changed by virtue of drastic effluxion of time. When the application was called upon for hearing by way of written submissions, the learneq counsel for the applicant briefly reiterated what was deponed into the affidavit. In his replying written submissions the learned counsel for the respondent argued that the applicant's written submissions offended the law that requires it to contain reasons and they were thus not submissions, he cited the case of Gervas Masonie Kulwa v. the Returning Officer and others [1996] TLR 320 to fortify the argument. He also argued that, the submissions were filed on 19/9/2012 instead of 17/9/2012 as ordered by the court. The same were thus filed two days out of time; hence the applicant failed to prosecute the application since the delay to file the same is legally equated to non-filing of the submissions. He cited the decisions of this court in Buyamba M. John v. Adili Bancorpt Ltd Page 2 of 6 and another, Civil Case No. 146 of 2000 (unreported) and Rartsila (T) Ltd and Mwinyi Uweje and 25 others, Labour Revision No. 213 of 2008 to support the contention. The learned counsel for the respondent alternatively underscored the contents of his counter affidavit. In the rejoinder submissions, the learned counsel for the applicant asserted that the written submissions were filed in time, i. e on 17/9/2012 as per the exchequer receiptno. 48167966-1. From the record/ it is true that the applicant's written submissions were timely filed on the 17/9/2012 as per the exchequer receipt no. 48167966-1 issued against the filing fees for the submissions. The date of paying the necessary filing fees in court is considered by law as the date of filing a document in court. Our law also recognises an exchequer receipt as a safe evidence upon which a court of law can rely in determining an issue relating to events occurring in court involving payments of fees to the court; Dickson Senhyina v. Tanzania Posts Corporation, High Court Civil Case No. 48 of 2006, at Dar es salaa (Kalegeya, J as he then was) and the envisaging in the case of Board of Trustees of Mbomimpa and another v. Jaghan Gulam Haji, Chairman, Hunters Association of Tanzania, Iringa Branch, High Court Misc. Civil Appeal No; 9 of 2004, at Mbeya. · Again, I am of the view that though the applicant's written submissions are too brief, they contained reasons for the application, which I previously said, are the same grounds deponed into the affidavit supporting the application. For these reasons, I will not neglect the applicant's written submissions !n deciding this application as suggested by the learned counsel for the respondent. The main issue before me is therefore, whether or not, under the circumstances of the matter, the leave to appeal to the CAT can be granted. According to the record, all the three points raised into the grounds for this application (numbered a- c herein above) were in fact grounds of appeal before this court. I will discuss the three points in· considering the merits of this application for, the law says tha in doing so, the court looks into matters which came up in the lower court and were decided, and not into matters which were not raised nor decided by the court that made the decision to be appealed against, see the envisaging by the CAT in the case of Elisa Mosses Msaki v. Yesaya Ngateu Matee [1990] TLR 90. Page 3of 6 As my adjudicating plan, I will first discuss the point numbered "b" herein above, then No. "a" and lastly No. "c". Regarding the point numbered "b" this court held in deciding the appeal, that the finding by the ICT was based on the documentary evidence, i. e. exhibits ID. 2, 4, 5 and 8, hence its finding that the retrenchment exercise took effect from the 1st March, 1995. This court held further that the ICT, as a trial court was better placed to make that finding of facts than this Court- sitting in its appellate capacity. It also held that the finding by the ICT could not be reversed by it (this court) in law as the same was justified. As to the point numbered "a" herein above, this court found that as long as it had held that the retrenchment exercise was effective from 1st March, 1995, the voluntary agreement effected two months thereafter (i. e. on 5/5/1995) could not apply to the appellants (now applicants). As to the point numbered "c" herein above, this court decided that, ·following the decision it made in respect of point numbered "b" herein above, then the ICT had correctly evaluated the documentary evidence and reached into a sound conclusion of facts and law. From the above demonstrated decision of this Court on the three points (a - c) raised as grounds for this application, I am of the view that the decision of this. court mainly based on credibility of the evidence adduced before the ICT and it respected the findings of the ICT as the trial court. I therefore, premafacie, do not see any triable issue to be considered by the CAT so as to warrant this court grant the application for leave. The conditions for granting an application of this nature were summarised by my Brother, Massati, J (as he then was) in the case of Citibank Tanzania Limited v. Tanzania Telecommunications Company Ltd and 5 others, High Court of Tanzania (Commercial Division), Misc. Commercial Cause No. 6 of 2003, at Dar es Salaam (unreported) where he remarked, and I quote him for a readymade reference; "I think it is now settled that for an application for leave to appeal to succeed, the applicant must demonstrate that the proposed appeal raises contentious· issues worth taking to the Court of Appeal or are of such public importance, or contain serious issues of misdirection or non ·· direction likely to result in a failure of justice and worth consideration by the Court of Appeal. .. .In an application of this nature, all that the Court needs to b~ addressed on, is whether or not the issues raised are contentious .... the Court cannot look at nor decide either way on the . -~-? merits or otherwise of the proposed grounds of appeal". Page 4 of 6. In arriving into the above decision, Massati J, (as he then was) keenly considered and followed the following precedents; Civil Application No. 94 of 1999, Gaudencia Mzungu v. Idm Mzumbe (unr~ported, by the CAT), which held that; "What is important is whether there are prima facie; grounds meriting an appeal to. this Court. The echo stands as guidance for the High Court and Court of Appeal." He aiso followed the East African Court of Appeal decision in Sango Bay Estates . . ·- . . . . Ltd & others v. Dresdner Bank [1971] EA 17 (2) in which it was stated that:- "Leave to appeal from an order in civil proceedings will normally be granted where prima facie, it appears that there are grounds of appeal which merit serious judicial consideration." ,• 'I Again, Massati J, considered the CAT decision in the case of Lazaro Mabinza v. The General Manager, Mbeya Cement Co. Ltd, Civil Application to 1 of 1999 (at Mbeya Registry, unreported) that held thus: "Leave to appeal should be granted in matters of public importance and serious issues of misdirection or non direction likely to result in a failure of justice." He further considered the case of Saidi Ramadhani Mnyanga v. Abdallah Salehe [1996] TLR 74 where it was held that for leave to appeal to be granted, the application must demonstrate that there are · serious and contentious issues of law or fact fit for consideration by the CAT. The other decisions followed by the learned Judge were his own previous verdicts in the cases of Rudolph Temba & another v. Zanzibar In,surance Corporation Ltd (Commercial Case No. 16/2007) (Unreported) and Fauzia Jamal v. Shamsha Manja (Commercial Appeal No. 2 of 2006 (unreported). Masanche J, (as he then was) also supported the above demonstrated stance, in the case of Razac Somji and 29 others v. National Housing Corporation, HC, Misc. Civ. Application No. 100 of 2004, at Mwaza (unreported). For the above stated reasons and the enlisted precedents, I do not think if the applicant is entitled to the prayed leave following the propriety of the judgment of this court in deciding the appeal. The law is also to the effect that Page 5 of 6 . ·where matters of facts were well decided, leave to appeal cannot be granted, see the cases of Mwajuma S. Kinza v. Semeni Omari Kibaya, CAT Civil Appeal No. 45 of 2003, at Dar es Salaam (unreported) and Aidha Ogonga v. Daudi Odira, High Court Misc. Civil Application No. 189 of 2001, at Mwanza (unreported). The CAT also held that, the powers of court to grant leave are discretional and can be granted only if the circumstances of the case are warranted in the interests of justice; Alex Maganga v. Director Msimbazi Center, CAT Civil Reference No. 17of 2003, at Dar es Salaam (unreported). Having observed ~s above, I hereby determine the issue posed above negatively to the effect that, this court cannot grant the sought leave to appeal to the .CAT and I accordingly dismiss the application. I will not however, make any order for cnsts for; the nature of this matter is related to employment disputes which do not normally attract condemnation to costs. Ordered accordingly. JHK. UTAMWA JUDGE 04/09/2014. Page 6 of 6 . ·,.