20140714 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KILEO, J.A., MMILLA, J.A. And JUMA, J.A.} CIVIL APPLICATION NO. 173 OF 2004 STELLA TEMU ....................•.....................................................APPELLANT VERSUS TANZANIA REVENUE AUTHORITY ..................... ~ ...................... RESPONDENT (Application for Review from the decision of the Court of Appeal of Tanzania at Arusha) (Ramadhani, J.A., Nsekela, J.A. And Kaji, J.A.} Dated the 27 th day of October, 2004 In Civil Appeal No. 72 of 2002 RULING OF THE COURT 31 st March 2014 & 14th July, 2014 KILEO, J.A.: Ol In this application, the 1 applicant Stella Temu, through the seryice of her I ~ lear~ed counsel, Dr. Mtsumbuko Lamwai leeks a review of ~is Court's 1 ·•. ' 1 ,i;~ 1 ~- .~; decision dated 2ih October 2004 in Civil 'Appeal No. 72 of 2002. The grounds for seeking a review as appears in the Notice of Motion are as follows: 1. That there was no legal Justification for this Honorable Court to change the contents of the letter of employment of the applicant dated 17h June 1996 Exhibit P-1 to mean secondment. The two are distinct legal terms bearing the .r different 1 ,.,.. meanings/ rights and privileges. The High Court rightly established that the applicant was an employee of the Respondent 2. That the Court Of Appeal did not consider that the respondenthad exercised his options by not applying the WARAKA WA UTUMJSHJ Na. 7 of 1995 - exhibit D-1 at the time of employment. What the respondent opted for was Employment under probation and not secondment as intimated by this Honorable Court. Upon accepting the appointment by the Applicant the contract was legally sealed as between the applicant and the respondent. 3. That this Honourable Court did not consider options available and set out by the Respondent himself in the event he was no longer interested in the services of the applicant as is set out in Exhibit D- 2 Staff Regulations. The 24 hours notice stated therein was not given to the Applicant, denying her the opportunity to .-.l. defend herself. , , 4. That this Honorable Court misinterpreted letter of promotion dated 1/10/1996 Exhibit P-2 to mean that the applicant was still in the employment of the Ministry of Finance. The letter specifically states that the promotion was to be applicable from 1/1/11996 when the Applicant was still an employee of the Ministry of Anance,, before she took up a new employment contract with the Respondent. 2 5. That both the High Court and this Honourable Court completely missed the point when deliberating on the ground 2 of Appeal. What was being contested is the evidence that the applicant· mishandled a case of seized contraband Konyagi by telling her superior. that the appeal was out of time. Both the High Court and this Honorable Court went on to make decisions based on this evidence/ which was not contained in the written statement of the defence hence denying the applicant the right to defend herself on this issue. 6. This Honorable Court mentioned failure of interview as the main reason for termination of the applicant services to the respondent. It is the respondent who designe~ published and put into use· the Performance Appraisal form Exhibit P-3. The respondent had the duty to state why the said form was not used on the applicants·. appraisal. ,. ..J ~1 Sµbmitting on behalf of the applicant ();r.lamwai suggested that \l t I ·. . . thou'.gh the Notice of Motion contained six gr~unds they could however -~- ~ -t,::• be condensed into one main ground, namely:that there was a manifest error on the face of the record resulting in a miscarriage of justice. Dr.Lamwai submitted further that the manifest error on the face of the record was the failure of the Court to apply section 28 of the Tanzania Revenue Authority (TRA)Act in interpreting · the applicant's status with TRA. The learned counsel contended that the Court committed a grave error to think that the appellant was seconded 3 to the Tanzania· Revenue Authority (TRA) while all employees who were sent there were taken to be employees. of TRA by operation of the law. Responding to Dr.Lamwai's arguments,. Mr. Felix Haule, learned counsel for the TRA who was assisted by· Mr. Noah Tito, learned advocate submitted that all· the six grounds on the Notice of Motion were grounds of appeal which were .all tested in the course of hearing the appeal and as such they could not form grounds for review. The learned counsel also submitted that at the hearing Dr.Lamwaihad come up with a completely new matter which was not raised in the Notice of Motion .. As for the non- application of section 28 of the TRA Act in interpretation of th~ applicant's status with TRA it was the learned counsel's view that the provision was not applicaple in the circumstances .. j of the '.case. .j l ~ II ~ Tihis matter need not detain us. There is n01gainsaying . ~ . that though f ~ the Coi1rt has jurisdiction to review its own decitions that jurisdiction is exercised sparingly. It is also to be noted that review jurisdiction is not another form of appellate jurisdiction in the same Court- see for example, the case of Transport Equipment Limited vsDevram P. Valambya(1998) T. L. R 90. The primary purpose of review is not to · challenge the merits of a decision. A review is intended to addres·s irregularities of a decision which have caused injusti_ce to a party. 4 ., - By the coming into force of the Court ofAppeal Rules; 2009 the grounds for review are now enumerated under Rule 66 of the said Rules. The said Rule is couched in the following terms: 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 ori the face of the record resulting in the miscarriage of justice (b) a party was wrongly deprived of an opportunity to be heard ( c) the court's decision is a nullity (d) the court had no jurisdiction to entertain the case; or (e) the judgment was procured illegally, or by fraud or perjury. It needs not be emphasised that review is restricted only to the grounds mentioned above and to no other. .. tr . ~ It is further provided in sub-rule (3) of rule 66 th~t.. the Notice of Motioh. for review shall set out clearly the grounds for review, which we hasten to say, must be those described under sub- rule (1). The applicant's Notice of Motion does not contain any one of the grounds listed in sub-rule (1). Instead, the learned counsel condensed them under cover of 'manifest error on the face of the record~ We are of the settled mind that Review being what it is, an applicant is obliged to 5 l. state· categorically under which of the sitµations/grounds listed by law the review application falls. Failure by an applicant to indicate under which of the grounds listed the application falls renders such application incompetent. For this reason alone we would hold· the application for - review before us incompetent. We however note also that all the grounds in the applicant's Notice of Motion were actually grounds of appeal and the issues raised were tested in the course of determination of the appeal which is the subject of this review. Dr.Lamwaidid not give up easily. He suggested to us that the Court failed to apply section 28 of the TRA Act in its interpretation of the applicant's status with TRA. As rightly pointed out by Mr.Haule, this was a completely new matter which was not in the Notice of Motion. Not ? only that, section 28 of the TRA Act does not cover matters of¾ . t ;. \. .. 'i employment but pertains to vesting of assets and liabilities, subsisting if ji contracts and pending proceedings: The provision states: 28. - (1) All property, except any such property as the Minister may determine, which immediately before the commencement of this Act was vested in the Government_ for the use of the Revenue Departments for the purpose of giving effect to the laws set out in the First .Schedule shall, on the date of commencement of this_ Act; and without · further assurance, vest in -the Authority subject to all 6 Interests, liabilities, charges, obligations and trusts affecting that property. (2) Except as otherwise provided in subsection (1) in relation to property, contracts, debts, engagements and liabilities of the Governments attributable to the Revenue departments shall remain vested in. the Authority and may be enforced by or against the authority.' It is obvious from a reading of the above provision that it has nothing to do with matters of employment as between an employer and an employee. Dr. Lamwai was therefore under a misconception to think that the Court ought to have applied section 28 of the TRA Act in its determination· of the matter that was before it. In view of the above considerations we find the application for review of our decision in Civil Appeal No. 72 of 2002 by Stella Temu to be lacking in merit. We according dismiss it with costs. DATED at DAR ES SALAAM this 14th Day of July, 20~4. E.A. KILEO JUSTICE OF APPEAL B.M. MMILLA JUSTICE OF APPEAL I.H. JUMA JUSTICE OF APPEAL . I r copy of the 7