tanzania breweries limited vs herman bildad minja 2018 tzca 579 14 november 2018

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWARIJA. J.A. MZIRAY, J.A.. And MKUYE, J.A.) CIVIL APPLICATION NO. 164 OF 2015 TANZANIA BREWERIES LIMITED ....................................................... APPLICANT VERSUS HERMAN BILDAD MINJA...................................................................RESPONDENT (Application for Revision from the decision of the High Court of Tanzania at Dar es Salaam ) (Lyimo, DR.) (Dated 3rdday of July, 2015) in Execution No. 42 of 2012 RULING OF THE COURT 2nd& 14th Nov. 2018 MZIRAY, J.A.: This is an application for revision made under Section 4 (1) (2) and t :{-3) of the Appellate Jurisdiction Act CARPI'RE-2002 and Rule 65(1), (2), (3), (4) and (5) of the Tanzania Court of Appeal Rules, 2009. The applicant is moving this Court for an order to call for and examine the records of i ‘•execution proceedings, dated 18/02/2015; ^15/06/2015 and 26/06/2015 as well as the Garnishee Order dated 3/06/2015 given by Ms. D.R. Lyimo, Deputy Registrar acting under the instructions of the Judge Incharge in the High Court of Tanzania, Labour Division, at Dar es Salaam and Arusha respectively in Execution No. 42 of 2012 arising from the proceedings and Arbitral Award of the Commission for Mediation and Arbitration (CMA) at Arusha, with a view of satisfying itself as to the correctness, legality, propriety or otherwise of the proceedings, decisions or orders made therein and where appropriate quash and set them aside on the following grounds, namely:- (i) That the respondent died and no application for substitution by legal representative has been made and granted, yet the High Court proceeded with the execution proceedings as if the respondent is still alive; (ii) That the award for reinstatement and even the whole case has been overtaken by events upon the death o f the respondent; ~(iii) That the High Court order allowing execution on monetary terms is erroneous as the award is for reinstatement only; (iv) That the High Court holding that the applicant has denied/fai/ed to reinstate the respondent and thus the only remedy is to apply section 40(3) o f the Employment and Labour Relation Act No.6/2004 by paying the respondent instead o f reinstating him is erroneous because the applicant did not fail to reinstate the respondent as it challenged and still is challenging the award o f reinstatement; (v) That the mode o f execution ordered by the High Court by way o f garnishee is also erroneous as no such application for execution by way o f garnishee proceedings has ever been filed in court; (vi) That the Court is functus officio having already ruled that it had no power to execute "the award in monetary form; (vii) That the Registrar o f the High Court does not have powers to make the orders he made; 3 (viii) Thatthe amount payable, if any, has not been assessed by the Court; The application is supported by the affidavit of one Huruma Ntahena filed on 12 /8/2015. On being served with the notice of motion, the respondent through the services of Mr. John Materu, advocate, vehemently resisted the motion and in addition raised preliminary points of objection as hereunder:- /' That, the application for revision is incompetent for it seeks for revisionai jurisdiction o f the Court as an alternative to the appellate jurisdiction o f the court. ii. That, the application to revise the execution proceedings o f 18h February is hopelessly time barred in terms o f Rule 65(4) o f the Tanzania Court o fAppeal Rules, 2009. Hi. That, since the orders dated '15th-June, 2015, 20h June, 2015 and J d July, 2015 relate to execution proceedings and were issued by 4 the Deputy Registrar this*Honourable Court lacksJurisdiction to entertain and determine the application for revision, iv. That, since the orders relating to Execution No. 42 o f 2012 are still being challenged by the applicant vide three different applications filed by the applicant in the High Court o f Tanzania Labour Division at Dar es Salaam and Arusha, the present application is an abuse o f Court process and thus incompetent. On 2/11/2018 when the application was called on for the hearing of the preliminary objection, the Court found it appropriate to invite the parties to address it first on the competence of the application after detecting that several core documents were not included in the record of appeal. Both'parties agreed that some vital documents were missing in the record of appeal. They readily conceded that the application is not proper before the Court because the applicant failed to attach the proceedings of 18/02/2015 and 26/06/2015 arising from Execution No. 42 of 2012 together with the Rulings and Drawn Orders thereto, the subject of this revision. They only differed as to the way forward. While Mr. John Materu, learned counsel for the respondent was of the view that the failure to include those documents rendered the application incompetent and liable to be struck out, Mr Cuthbert Tenga, counsel for the applicant on his part pleaded with the Court not to strike out the application because the respondent was not prejudiced by the omission. This matter should not detain us much as the position in a situation where an application for revision made under S.4(3) of the Act moved by a party without supplying the Court with a copy of proceedings is very clear; the application is incomplete and incompetent hence liable to be struck out. In the case of AMOS FULGENCE KARUNGULA v.JKAGFRA CO­ OPERATIVE UNION (1990) LTD, Civil Application No. 2 of 2013 (unreported) this Court when quoting the case of THE BOARD OF - TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND (NSSF) v. 6 LEONARD M7EPA, Civil Application No. 140 of 2005 (unreported) held that: 7This Court has made it plain; therefore, that if a party moves the Court under Section 4 (3) o f the Appellate Jurisdiction Act, 1979 to revise the proceedings or decision o f the High Court, he must make available to the Court a copy of the proceedings of the lower court or courts as well as the ruling and, it may be added, the copy o f the extracted order o f the High Court. An application to the Court for revision which does not have all those documents will be incomplete and incompetent. It will be struck out." [See also BENEDICT MABALANGANYA v. ROMWALD SANGA, Civil Application No. 1 of 2002 (unreported)]. . Since in. our case the proceedings of 18/02/2015^ and 26/06/2015 arising from Execution No.42 of 2012 together with the Rulings and the extracted Drawn Orders thereto, the subject matter of this revision are missing in the record, the application is incompetent. The same is hereby struck out. The application having been struck out on a point raised by the Court, suo motu, we make no order as to costs. It is so ordered. DATED at DAR ES SALAAM this 8th day of November, 2018. A. G. MWARLJA JUSTICE OF APPEAL R.E.S. MZIRAY JUSTICE OF APPEAL R.K. MKUYE JUSTICE OF APPEAL I certify that this is a true copy cfijieorjginal. S. J. KAINDA DEPUTY REGISTRAR COURT OF APPEAL