CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A., MGEYEKWA. 3.A. And MLACHA. 3.A) CIVIL APPEAL NO. 391 OF 2021 STEPHEN S. MNUBI................................ ........................... 1st APPELLANT PRISCA MKINI............... .... .............................................2nd APPELLANT VERSUS INTERNATIONAL SCHOOL OF TANGANYIKA......................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania [Labour Division], at Dar es Salaam) (Muruke. J.) dated the 20th day of August, 2021 in Labour Revison No. 913 of 2019 RULING OF THE COURT 19th February & 4th March, 2025 MLACHA, J.A.: The appellants, Stephens Mnubi and Prisca Mkini were employed by the respondent, International School of Tanganyika, as teacher assistants on fixed terms contracts of one year effective from 1st August, 2017 to 31st July, 2018 at a monthly salary of USD 782 and 751 respectively. The respondent did not want to proceed with them at the end of the contracts. She gave them a notice of 3 months and asked them to leave at the expiration of the contract. The appellants did not see justice in the manner their contracts were terminated and moved to the Commission for Arbitration and Mediation (the CMA) in Labour Dispute No. CMA/DSM/KIN/864/18/258 demanding payment of a total of USD 43,985.5 for unfair termination, notice, leave and severance allowance. The CMA found that they were unfairly terminated for want of reasons and awarded payment of 12 months' salary for unfair termination, one month's salary as notice, leave and severance allowances, total USD 24,056.3. This decision was revised by the High Court, Labour Division, in Revision Application No. 913 of 2019 (Muruke J., as she then was) which held that the appellants were not terminated rather their contracts came to an end and thus not entitled to the reliefs which were awarded by the CMA. It quashed and set aside the award. Aggrieved, the appellants have appealed to this Court. For reasons which will be apparent soon, we will not reproduce the grounds of appeal. Mr. Bernard Mbakileki, learned advocate, appeared for the appellants whereas the respondent was represented by Mr. Emmanuel Nasson, also learned advocate. When the appeal was placed before us for hearing, the Court was called to determine a preliminary objection, notice of which was filed earlier which reads: "1. The Supplementary Record o f Appeal was served to the respondent beyond the prescribed time; violating Rule 97 (1) o f the Court o f Appeal Rules, 2009. The record was lodged on 11th September, 2024 and served to the respondent on &h February, 2025." On taking the floor, Mr. Nashon contended that the supplementary record of appeal was served to the respondent out of time contrary to rule 97(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules). Amplifying he contended that it was lodged on 11/9/2024 and served to the respondent on 6/2/2025, the date when she received the summons to appear before the Court. This was 148 days, after the date on which it was filed in Court, contrary to rule 97 (1) of the Rules which required it to be served within 7 days. The learned counsel contended that, in view of the delay and the mandatory requirement of the law, the appeal is incompetent and must be struck out. He cited to us the decision of this Court made in CRDB Bank Limited v. Finn W. Petersen & Others (Civil Appeal No. 271 of 2020) [2024] TZCA 274 to support his stance. Mr. Mbakileki agrees that they served the supplementary record of appeal to the respondent out of time contrary to rule 97 (1) of the Rules, but contended that so long as the respondent has not shown how she was prejudiced by the late service, the case should proceed for hearing. In the alternative, he urged the Court to invoke the oxygen principle to overrule the preliminary objection. When he was referred to the position of the law set in the case of CRDB Bank Limited (supra), he invited the Court to ignore the decision and make appropriate orders to allow the case to proceed for hearing. In rejoinder, Mr. Nashon submitted that, so long as there is an admission that the supplementary record of appeal was served out of time contrary to rule 97 (1) of the Rules, the appeal must be found to be incompetent and struck out. He resisted the prayer to ignore the decision of the Court made in CRDB Bank Limited (supra) and the application of the oxygen principle in the matter. He contended that the Court is bound to follow its decision position for consistence in under the rule of precedents. He added that the oxygen principle cannot be used to circumvent the application of rule 97 (1) of the Rules. On our part, we had time to examine the record and the submissions made before us closely. We will start by examining the law. Rule 97 (1) of the Rules reads thus: "The appellant sh a ll,before or within seven days after lodging the memorandum o f appeal and the record o f appeal in the appropriate registry, serve copies o f them on each respondent who has complied with the requirement o f rule 86" (Emphasis supplied) Rule 97 (1) of the Rules has a requirement to serve the memorandum and record of appeal to a respondent, who has complied with the provisions of rule 86 of the rules, within 7 days. The requirement under rule 86 of the Rules is to provide address for service. There is no issue in this case that the respondent did not provide her address for service. The respondent's address for service is well indicated to be through Emanuel Nashon advocate, Phynix Attorneys, 24th Floor, Rita Tower, Makunganya Street, P.O. BOX 1114, Dar es Salaam, Mobile No. 0718 708272, Email: info@phvnix.co.tz. Further, based on the parties submissions, it is not disputed that the service of the supplementary record was not effected within 7 days as provided under rule 97 (1) of the Rules. The issue is whether the oxygen principle can be invoked, as requested by Mr. Mbakileki, to do away with the requirements of the law. We think it cannot. We find strength in our decisions in CRDB Bank Limited (supra), Mohamed Enterprises Tanzania Ltd vs Mussa Shabani Chekechea (Civil Appeal No 64 of 2015) [2017] TZCA 371 (29 September 2017) and Mokiri Damasi Ngoja vs National Housing Corporation Independent Agencies & Another (Civil Appeal 273 of 2018) [2021] TZCA 540 (30 September 2021). In Mokiri Damaas Njoka (supra) it was sated thus: "Be it as it may, our reading o f Rule 97 (1) o f the Rules is that it is couched in mandatory terms implying that its compliance is imperative... failure to serve the respondents with the memorandum o f appeal in terms o f Rule 97(1) o f the Rules, renders the appeal incompetent before the Court. Hence, this point o f preliminary objection also has merit". As to whether the oxygen principle is applicable or not, our decision in the CRDB Bank Limited case (supra) is relevant. We said it all when it was sated: "We are therefore confident in stating that the Oxygen Principle cannot apply to the present situation. While we appreciate the stance that procedural rules should not override substantive justice, disregarding the very laws and rules that uphold the rule o f law, as we are enticed to do in the current situation, would defeat their purpose. As highlighted in Mondorosi Village Council, Gideon Wasonga, and Filon Kwesiga's cases (supra), the Oxygen Principle was not established to rectify every omission or inadvertence by a party in complying with procedural Requirements". We reafirm the position of the law. With respect to Mr. Mbakileki, we cannot apply the oxygen principle to defeate the mandatory requirement of rule 97 (1) of the Rules. Neither can we ignore our previous decisions on the subject matter. In view of what we have demonstrated above, the prelimnary objection is sustained. The application is found to be incompetent and struck out. This being an employment matter, we make no order as to costs. DATED at DAR ES SALAAM this 3rd day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Ruling delivered this 4th day of March, 2025 in the presence of Mr. Bernard Mbakileki, learned counsel for the Appellants and Mr. Jonathan Kessy, learned counsel for the Respondents; is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL