20080919 TZHC Mwanza

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY ATMWANZA 0 CIVIL REVISION NO.07 OF 2006 {Originating from RM's court Civil Appl.No.289/2003} PLANT MANAGER, TANZANIA BREWERIESL_ LIMITED {MWANZA BRANCH} S. ......APPLICANT Versus 1. PENDO MASASI } 2. MRISHO SELEMANI ................................ RESPONDENTS 3. S.L.ISANGI . ~ '7-sOy( RULING RWEYEMAMU, l: The applicant seeks revision of the Mwanza RM's court ruling in Misc. Civil Application 289/2003, in which the applicant had sought ·_ an order for stay of execution of the decree of reinstatement issued by that court on 8/10/2003. Before proceeding further, let me give some pertinent background information to this matter. The case emanates from an employment relationship. The respondents were former employees of the applicant (hereinafter, the employer). They were summarily dismissed and using the procedure prescribed under the now repealed Security of Employment Act, 1964 they successfully appealed their dismissal to the Labour Conciliatory Board which ordered their reinstatement on 23/8/2000. The employer made reference to the Minister of Labour but the same was also dismissed on 22/7/2003. Thereafter, the following ensued: 1. On 23/8/2003 the employer filed Misc.Appl.102/2003 in the High Court seeking leave to apply for prerogative orders against the Minister's decision. () . ./ 2. In the meantime, on 1/9/2003 the respondents filed Misc. Application 231/2003 for execution of minister's reinstatement order in the RM's court. 3~ On 8/10/2003 a reinstatement decree was issued to the Court broker (CB) the Third party for execution. The CB unsuccessfully executed the same and reported the mishap to the court in his affidavit filed in court on 9/10/2003 following which on 12/11/2003, the respondents applied for order of contempt. 4. On 17/11/2008 the· employer filed Misc. Civil Application 289/2003 for Stay of Execution of the reinstatement decree subject matter of this ruling - pending determination of matters in HC. In the impugned ruling, the RM's court decided among others that; ".... .From the above, the application has been overtaken by events as the filing of the application for prerogative orders in the High Court·to quash the decision of the Minister caused the trial court to loose Jurisdiction to entertain this matter. " In other words, the court decided that it had no jurisdiction to entertain tbe application but it went ahead, determined the application. on merit~ concluding that "the application for order for stay of execution of· reinstatement order is refused and the entire application is hereby dismissed with costs" 2 One of the grounds of complaint by the applicant is that the court having found that it had ,no jurisdiction (even though an erroneous conclusion in their opinion and with which I agree), it erred when it went ahead to determine the application on merit. The respondents vide_ their counsel who prepared their submission gratis, argued that the trial court did not determine the application on merit, rather the court "gave an obiter dictum of what it would rule if at all it had Jurisdiction to entertain the application''With respect, I do not think the respondents' submission on that issue can stand in view of the clear wording of the trial court's decree based on its ruling. It dismissed the application on merit and with costs. That is one of the issues for decision, and which I find determinative of this matter, namely whether the. court was right in deciding the application on merit after it had held that it lacked jurisdiction. I find without hesitation that the court was in err. It is the law that an incompetent application amounts to nothing i.e. it is no application, extrapolating the TCA decision regarding a. situation when the court was faced with an incompetent appeal in Leonsi Silayo Ngalai v. Hon. Alfred Salakana & AG, Civil appeal 38/1996, as cited and followed by that court in MIC Tanzania Ltd. v. minister of Labour & AG, civil Appeal 103/2004 TCA DSM registry (unreported). In the latter case, the TCA held that once the appeal or application is found to be incompetent, the only option is to strike it out. Incidentally in that case, the HC had also decided though wrongly, which I believe is also the position in this case, that it had no 3 jurisdiction to entertain an application before it, and like the present case, the HC went ahead to determine on merit. The TCA held that orders of the HC made subsequent to its holding that the application was incompetent, could not be upheld. I am aware that this matter came to this court by way of application for revision under Section 43(2) of the MCA (Cap. 11 RE 2002), and section 79 (1) of the CPC Cap. 33; The question exercising my mind is whether revision was the proper avenue to challenge the trial court ruling. Now revision exists to deal with errors apparent on the face of the record; a ''mistake of law by a magistrate is not an error apparent on the fact of the record, because magistrates have Jurisdiction. to make mistakes. The Higher courts are there to correct the mistake of law✓ on appealing" as observed by Masanche J. in Samwel Gesase v. The Manager- Tardeco tarime, HC civil revision 16/2001, MZA registry (unreported), a reasoning I concur with; revision is not an alternative to appealing. Likewise, the. trial court ruling was appealable therefore the appropriate avenue for the applicant would have been to appeal that decision. Despite that, I find it not to be in the interest of justice to further protract this matter. Employment based disputes touch livelihood of both employers and employees, it is in public interest that where no injustice would be occasioned to either party, a fast resolution avenue be resorted to. There is clearly a mistake in the impugned decision, and I find it appropriate to use revision powers vested in this court to correct the same. 4 . ,I In view of my decision above, I grant this application but with no orders as to costs. The entire ruling and decree appealed against is set aside. 0 R. M. RWEYEMAMU ::::::-......,. JUDGE 19/02/2008 AtMwanza 20/9/2007 Delivered in the presence of 1st Respondent and in the absence of applicant, 2nd and 3rd respondent this 19th day of February 2008 . . M. RWEYEMA JUDGE 19/9a)008 5