SHARF SHIPPING AGENCY T LIMITED VS BACILIA CONSTANTINE 5 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: WAMBALI. J.A.. MASHAKA, 3.A. And MASOUP, J.A,) CIVIL APPLICATION NO. 361/01 OF 2022 SHARAF SHIPPING AGENCY (T) LIM ITED ....................................APPLICANT VERSUS BACILIA CO N STAN TIN E....................... ....................... .........1st RESPONOENT PILLY ABBAS MKUFUNZI......................................................... 2nd RESPONOENT FRANCIS GILBERT MWAKASEKELE..................................... ...3 rd RESPONOENT MARIETHA KIM W ENGO...........................................................4™ RESPONOENT NAKI M TEN G A............... .......................................................... 5th RESPONOENT TAFAWA NURU S W A I ...............................................................6™ RESPONOENT (Application for Review of the Judgment of the Court of Appeal of Tanzania at Par es Salaam) ( Korosso, Kitusi And Mashaka, JJ.A.) Pated the 17th day of May, 2022 in Civil Appeal No. 56 of 2019 RULING OF THE COURT 11th June & W " August, 2024 WAMBALI, J.A.: The applicant and the respondents had an employer and employees7 relationship. However, the said relationship came to an end after the applicant served the respondents, among other employees, with letters of retrenchment. It is noteworthy that while some employees agreed to being retrenched and accepted the payment offered by the applicant, the respondents were aggrieved. Thus, the respondents filed a labour dispute before the Commission for Mediation and Arbitration (the CMA) No. i CMA/DSM/ILA/R. 1164/16126 in which they placed two basic complaints; that the retrenchment was faulty because the alleged consultation was not properly done and that, the selection of employees who were to be retrenched was highly discriminatory. The applicant contested the complaints. After the CMA heard both sides of the dispute, it decided in favour of the respondents and awarded each 12 months remuneration as compensation. The applicant's desire to challenge the CMA's award through Revision Application No. 579 of 2017 was in vain as the High Court found the same lacking in merits. The applicant then lodged Civil Appeal No. 56 of 2019 before the Court. It is noteworthy that in its judgment delivered on 17th May, 2022, though the Court found that the applicant complied with the procedure of retrenchment, it held that the retrenchment was unfair for want of proof of reasons, and ultimately dismissed the appeal. It is the Court's judgment in that appeal that prompted the applicant to lodge the instant application for review in which the Court is urged to review it on account of a single ground that: "The judgm ent and order o f the Court was based on a m anifest error on the face o f record resulting in the m iscarriage o fjustice". The thrust of the applicant's application is basically premised under the provisions of rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules). The application is supported by the affidavit deposed by Ramji Thakur, the applicant's Finance Manager. However, the application is contested by the respondents through an affidavit in reply deposed by Rahim Mbwambo, learned advocate. At the hearing of the application, Mr. George Ambrose Shayo, learned advocate appeared for the applicant, whereas Mr. Rahim Mbwambo, also learned advocate entered appearance for the respondents. At the very outset, Mr. Shayo intimated to the Court his resolve to rely on the notice of motion, affidavit, written submissions and list of authorities lodged earlier on in support of the application. Nevertheless, Mr. Shayo briefly emphasized that the judgment of the Court is faulty for having concluded that the retrenchment of the respondents was unfair for lack of proof of reasons while it had rightly found that the procedure prescribed by the law that facilitated the said retrenchment was complied with by the applicant. When we probed him to show us whether the applicant had plainly exposed the alleged manifest error in the notice of motion, he firmly stated that the single ground is sufficiently supported by paragraph 13 of the affidavit together with the written submissions. Particularly, he pointed out that the said manifest error in the judgment of the Court is evident at page 14. For clarity, we reproduce it thus: "Therefore, despite our finding that the applicant com plied with the procedure o f retrenchm ent, the same was unfair fo r want o f p ro o f o f reasons In this regard, Mr. Shayo strongly implored the Court to consider the applicant's notice of motion, affidavit and written submissions and thereby grant the application, review the judgment and vacate it followed by an order that Civil Appeal No. 56 of 2019 be heard afresh. On the adversary side, Mr. Mbwambo similarly adopted the affidavit in reply, written submissions and the list of authorities lodged earlier on in the Court and strongly opposed the applicant's counsel submissions. He similarly stated briefly that, firstly, the application has no basis because in its alleged single ground of review, the applicant has not shown the said manifest error in the notice of motion which falls squarely within the provisions of rule 66 (1) (a) of the Rules, contrary to the requirement of rule 66(3) of the Rules. Secondly, that paragraph 13 of the affidavit cannot be taken to have shown and explained the alleged manifest error on the face of the record. He maintained that what the applicant has stated in the said ground is essentially a reproduction of what rule 66 (1) (a) of the Rules provides without showing the alleged manifest error on the face of record that has caused miscarriage of justice on her part. Moreover, Mr. Mbwambo argued that the explanation of the applicant on the alleged manifest error on the face of the record contained in the written submissions cannot replace the requirement that the same should be vividly shown in the notice of motion and affidavit in support of the application. Besides, he stated, the failure by the applicant to show the manifest error in the application renders the application frivolous and vexatious. On the other hand, Mr. Mbwambo submitted that gauging from the application and the written submissions, the applicant urges the Court to seat on appeal against its own judgment contrary to the requirement of the law. In the event, he pressed the Court to dismiss the application with costs. We have thoroughly perused the notice of motion in which the applicant undoubtedly relies on a single ground of review which we have reproduced above. In this regard, we entirely agree with Mr. Mbwambo that the applicant has essentially reproduced the provisions of paragraph (a) of rule 66 (1) of the Rules, without showing clearly the alleged manifest error on the face of the record as required by law. For emphasis, rule 66 (1) (a) of the Rules provides: "The Court m ay review its judgm ent o r order, but no application fo r review sh a ll be entertained except on the follow ing grounds- (a) the decision was based on m anifest error on the face o f the record resulting in the m iscarriage o f justice;". On the other hand, we do not agree with the applicant who maintains that the said ground of review has clearly disclosed the manifest error on the face of the record as plainly explained in paragraph 13 of the affidavit which reads thus: "13. THA T, the Applicant was aggrieved by the judgm ent o f the High Court Labour D ivision and preferred an appeal to this Honourable Court, C ivil Appeal No. 56 o f 2019 whereby th is Honourable Court after hearing the parties delivered its judgm ent on appeal on 17th May, 2022 finding the applicant com plied with the retrenchm ent procedures but dism issing the appeal fo r w ant o f p ro o f o f reasons". We are however of the view that the reproduced averment in the affidavit is not consistent with what is stated in the ground in which the alleged manifest error on the face of the record is not disclosed. We must emphasize that in an application for review under the provisions of rule 66 (1) (a) of the Rules, the applicant must show clearly in certain terms the respective ground(s) that disclose the alleged manifest error on the face of record that has occasioned a miscarriage of justice instead of simply restating the requisite provisions of the law. To this end, in Karim Ramadhani v. The Republic (Criminal Application No. 25 of 2012) [2015] TZCA 343 (14 July 2015, TANZLII), the Court stated: "In so fa r as the instant application is concerned, it is n ot sufficient fo r purposes o fparagraph (a) o f Rule 66 (1) o f the Rules, fo r the applicant to m erely allege that the fin a l appellate decision o f the Court was "based in a m a n ife st e rro r on th e fa ce o f re co rd ", if h is elaboration o f those errors disclose grounds o f appeal rather than m anifest error on the face o f the decision. I t is appropriate to p oint out that in h is supporting affidavit, the applicant has neither successfully expounded the "e rro r on th e fa ce o f th e re c o rd " nor has he established any linkage between those purported grounds o f review with the resulting m iscarriage o f ju stice required under paragraph (a) o f Rule 66 (1) o f the Rules". [Emphasis added] In the instant application, as intimated above, the applicant's notice of motion contains a single ground which has not clearly shown the 7 alleged manifest error on the face of the record. It is thus instructive to note that in African Marble Company Ltd (AMC) v. Tanzania Saruji Corporation, Civil Application No. 132 of 2005 (unreported), the Court cited a passage in Mullar Indian Civil Procedure, 14th Edition at pages 2335 - 2336 where it was stated as follows: "An error apparent on the face o f the record m ust be such as can be seen b y one who runs and reads, that is, an obvious and patent m istake and not som ething which can be established by a iong- drawn process o f reasoning on points which there m ay conceivably be two options". (See also the concurrence of the Court on the said observation in Golden Globe International Services and Quality Group Limited v. Millicom (Tanzania) NV and Another, Civil Application No. 195/01 of 2017, Pius Sangali and James Alen Russel Bell v. Tanzania Portland Cement Co. Ltd, Civil Application No. 52 of 2012 (both unreported). In this regard, it is expected that the supporting affidavit must clearly show and expound the alleged manifest error on the face of the record which is stated in the ground in the notice of motion. Basically, we are of the view that the averment in paragraph 13 of the supporting affidavit cannot be taken to expound the alleged manifest error on the face of the judgment which has not been exposed by a single ground in the notice of motion. Besides, though the applicant maintains that under paragraph 13 the manifest error is disclosed, there is no further explanation therein or any other paragraph in the affidavit to support the assertion. Moreover, there is no explanation on how the finding of the Court in its judgment constituted manifest error on the face of the record which has allegedly occasioned miscarriage of justice on the applicant. On the contrary, the applicant through her advocate has tried to expound the alleged manifest errors in the written submissions, but the said facts are not reflected in the affidavit that supports the application. It is appropriate to emphasize at this juncture that written submissions cannot substitute the evidential facts which are required to be in the affidavit. We are supported on this stance by the decision of the Court in the Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman of Bunju Village Government and 11 Others, Civil Appeal No. 147 of 2006 (unreported), in which it stated that: '!'Subm issions are generally m eant to reflect the general features o f a party's case. They are elaborations and explanations on the evidence already tendered. They are expected to contain argum ents on the applicable law. They are not intended to be substitute o f evidence". (See also Tanzania Union of Industries and Commercial Workers (TUICO) at Mbeya Cement Company Ltd v. Mbeya Cement Company Ltd and Another [2005] T.L.R. 41 at page 48). Moreover, we have carefully perused the written submissions and are of the view that basically, they reflect the fact that the applicant seems to be aggrieved by the holding in the judgment of the Court which is to the effect that though, the applicant complied with by the procedure for retrenchment, the same was unfair for want of proof of reasons. We say so because in the respective written submissions, at the very outset, after the narration of the nature of the dispute and how it was resolved by the CMA, the High Court and this Court, the applicant clearly states that she is aggrieved by the decision of the Court. Particularly, it is stated: "Your hum ble applicant is aggrieved b y the decision in appeal o f this Honourable Court as there are apparent errors on the face o f record occasioning m iscarriage o f injustice (sic) to the applicant hence this application fo r review". We further note that the applicant's desire to have her appeal re­ heard is clearly reflected by the fact that in the written submissions, the applicant's counsel has substantially discussed the propriety of the application of the law and facts which would have been relied on by the 10 Court to decide in favour of the applicant though the averments are not borne from the affidavit in support of the application. In the end, the applicant has invited the Court to consider the following issues in determining the application: "(i) W hether or not it was proper to hold that there was no reason fo r retrenchm ent given the evidence and finding that the applicant adhered to the retrenchm ent procedures. (ii) W hether or not the elem ent o f discussing and agreeing on retrenchm ent package (severance and other dues) is p a rt o f the retrenchm ent procedures. (Hi) W hether an employee can sue fo r unfair term ination after a retrenchm ent process is concluded leading to entering o r agreeing on the retrenchm ent package (severance and other dues)". It is in this regard that throughout the written and brief oral submissions, the applicant's counsel has consistently maintained that the Court wrongly held that the retrenchment was unfair for want of reasons while it had rightly found that the applicant properly complied with retrenchment procedures. 11 It is settled that an application for review is by no means an appeal through the back door (see Mirumbe Elias @ Mwita v. The Republic, (Criminal Application No. 4 of 2015) [2016] TZCA 275 (28 October 2016, TANZLII). It is thus important to distinguish between an error on the face of the record and an erroneous view of the evidence or law which may lead to review or appeal respectively. For emphasis, in Angelo Amundo v. The Secretary General of the East African Community, Civil Application No. 4 of 2015, the East African Court of Justice cited with approval the decision of the Supreme Court of India in Ariban Tuleshwar Sharma v. Ariban Pishak Sharma, (1979) (ii) UJ 300 SC, with regard to the distinction between a manifest error on the face of the record and an erroneous view on the evidence on record, where it was stated that: "There is a dear distinction regarding the effect o f an error on the face o f the record and an erroneous view o f the evidence or iaw. An error on the record ju stifie s a review, w hile an erroneous view on the evidence ju stifie s an appeal. Therefore, the pow er o f review m ay not be exercised on the ground that the decision was erroneous on m erits". Moreover, in its judgment, the East African Court of Justice also stated, among others, that: "As long as the p oin t has already been dealt with and answered, the parties are not entitled to challenge the im pugned judgm ent in the guise that an alternative view is possible under the review jurisdiction. In review ju risd iction mere disagreem ent with the view o f the judgm ent cannot be a ground fo r invoking the same". More importantly, in Karim Kyara v. The Republic, Criminal Application No. 4 of 2007 (unreported), the Court observed: "The law on application fo r review is now settled. A review is by no means an appeal in disguise where an erroneous decision is reheard and corrected. See Tungabhandra In d u s trie s v, A n d re P rad esh , (1964) SC 1372 as cited in M ulla, I4 h Edition P P 2335 that:" 'In a properly functioning leg al system litigation m ust have fin a lity so goes the Latin maxim thus deb e t esse Finis Latium. This is a m atter o f p u blic p o licy" From the foregoing deliberations, considering the nature and circumstances of the application placed before the Court by the applicant, we have no hesitation to hold that a manifest error on the face of the 13 record has not been shown. Therefore, the Court is not empowered to review its judgment under rule 66(1) (a) of the Rules. To this end, the application has no merit. Consequently, we dismiss it. On the other hand, we have carefully considered the prayer by the respondents that the applicant be condemned to pay costs for preferring a frivolous and vexatious application. In the end, we are of the decided view that it is in the interest of justice that we make no order as to costs. DATED at DAR ES SALAAM this 13th day of August, 2024. F. L. K. WAMBALI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Ruling delivered this 16th day of August, 2024 in the presence of Mr. George Shayo, learned counsel for the applicant and 1st, 3rd, 5th, and 6th respondents present in person but in the absence of the 2nd and 1 5 th re^rw">nr pntc; k hprphv rpr+ifiprl at; a I t ii p rnr>y of the Original. 14