RULING CIVIL APPLICATION NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWARI3A, 3.A.. FIKIRINI. 3.A. And RUMANYIKA. 3.A^ CIVIL APPLICATION NO. 28/01 OF 2023 TANZANIA DISTILLERS LIMITED........ ...... ..... ........APPLICANT VERSUS BENNETSON MISHOSHO.............. ..............................RESPONDENT (Review of the 3udgment of the Court of Appeal of Tanzania at Dar es Salaam) (Muaasha. Kitusi And Rumanyika, 3J.A/) dated 21st day of November, 2022 in Civil Appeal No. 382 of 2019 RULING OF THE COURT IB* & 3.1st July, 202-1 FIKIRINI. J.A.: This review arises from the decision of this Court (Mugasha, Kitusi, and Rumanyika, JJ.A.) in Civil Appeal No. 382 of 2019. The applicant, by notice of motion brought under section 4 (4) of the Appellate Jurisdiction Act, Cap 141 Revised Laws and rules 66 (1) (a) and 48 (1) (2) of the Tanzania Court of Appeal Rules, 2009 (the Rules), seeks to review the decision delivered on 21st November, 2022, and to vacate the order. Consequently, the applicant requests that Civil Appeal No. 56 of 2019 be heard afresh. The application is based on the claim that there was a manifest error on the face of the record due to the Court's failure to nullify the proceedings and quash the award of the Commission for Mediation and Arbitration (CMA), which contained unsworn respondent's evidence and this resulted in a miscarriage of justice. The facts leading to the present application can be summarized as follows: the respondent was employed by the applicant as a laboratory technician starting 16th July, 2008. This employment ended by termination on 4th March, 2014, after the respondent was charged with misconduct and processed through the Disciplinary Committee. Dissatisfied with the applicant's decision, the respondent sought redress at the CMA. The CMA, in its decision dated 21st April, 2017, overturned the termination and ordered reinstatement with full remuneration. The applicant’s subsequent revision application to the High Court was unsuccessful, leading to the appeal to this Court in Civil Appeal No. 382 of 2019. Displeased with the Court's decision, as detailed in the notice of motion that there was a manifest error on the face of the record for failure to nullify the award of the Commission for Mediation arid Arbitration (CMA) for containing unsworn respondent's evidence resulting in a miscarriage of justice. This irked and moved the applicant to apply for review. Huruma Ahazi Ntahena, the applicant's company secretary deponed an affidavit in support of the application. Particularly, in paragraph 10 of his affidavit, he pointed out the ground considered worth a review which stated as follows: " Tfte applicant was dissatisfied with the CMA award and filed Revision No. 506 o f 2018 before the High Court o f Tanzania Labour Division in Dar es Salaam. On 2(fh December, 2018, the High Court delivered a judgment in favour o f the respondent by dismissing the applicants revision* Aggrieved by this judgment; the appellant appealed in Civil Appeal No. 382 o f 2019 at the Court o f Appeal. The Court o f Appeal found that the respondent testified at the CMA without being sworn and, despite this, dismissed the applicants appeal on 21st November, 2022. A copy of this judgment is attached as Annexure-SSA -A to the affidavit" The respondent did not file an affidavit in reply, however, both parties filed their written submissions on 17th March, 2023 and 17th April, 2023 as per rule 106 (1) and (7) of the Rules. On the hearing date, Messrs. George Ambrose Shayo and Evans Robson Nzowa learned Advocates appeared for their respective parties and they prefaced their submissions by adopting the documents filed by each to form part of their submissions. Mr. Shayo, who represented the applicant, argued that the error apparent on the face of the record was that Thomas Munema-PWl, provided unsworn evidence, which the CMA relied upon in its decision. Despite the issue being raised albeit as an additional ground on appeal and uncontested by Mr. Nzowa, the Court did not nullify the proceedings or quash the award. Instead, it treated the irregularity as curable, asserting that it did not materially prejudice the appellant. Challenging the Court's decision, he contended that the facts in Tumaini Jonas v. R (Criminal Appeal No. 337 of 2020) [2021] TZCA 401 (August 24, 2021; TANZLii), referred by the Court were distinct. Since in that case, the issue was compliance with section 124 of the Criminal Procedure Act, Cap. 20 of the Revised Laws, concerning the transfer of a case between magistrates, which was deemed not to prejudice a party, which was quite different from the facts in the present application. Mr. Shayo further argued that immediately following the decision under review, the Court reverted to its previous stance as established in Greenwaste Pro Limited v. Mwajabu Ally (Civil Appeal No. 370 of 2020) [2022] TZCA 793 (December 7, 2020; TANZLii), where it was held that unsworn evidence is equivalent to no evidence at all. Enhancing his submissions, the learned Advocate, invited the Court to consider the decision in Christian' Minde v. TANESCO (Civil Appeal No. 228 of 2019) [2022] TZCA 692 (November 9, 2022; TANZLii), in which the Court after mulling over the issue of unsworn evidence, it ultimately vitiated the proceedings and ordered a retrial. Relying on the decision, Mr. Shayo urged the Court to grant the application, nullify the proceedings, quash the award, and order a retrial. Probed by the Court as to what amounts to an error apparent on the face of the record. Responding in reference to the application before the Court, Mr. Shayo contended that in the instant situation, witnesses on both sides gave unsworn evidence, even though one refuted the claim, the Court after acknowledging that there was irregularity should have nullified the proceedings and not as it opted to do. On his part, Mr. Nzowa aside from adopting his written submissions filed, began by disputing the assertion that witnesses were not sworn, except for PW1 - Thomas Munema. However, the Court accepted that in terms of rule 25 (1) of the Labour Institutions (Mediation and Arbitration) Guidelines, GN, of 2007 (the guidelines) ail witnesses should testify under oath, submitted Mr. Nzowa. Specifically, on PWl's unsworn evidence, he contended that the Court considered It not prejudicial, the situation which was different from what transpired in the Greenwaste Pro Limited (supra) whereby witnesses from both sides were unsworn, and therefore the proceedings were to be nullified and retrial ordered, which was not the case currently. He beseeched the Court to dismiss the application for lacking in merit. In his brief rejoinder, Mr. Shayo maintained that the law is clear that once there is unsworn evidence, that affects the whole proceedings. He thus impressed upon the Court that the application be granted as prayed and a retrial be ordered accordingly. The Court is now tasked with determining whether this application merits granting. While it is acknowledged that, pursuant to section 4 (4) of the A3A, this Court has the power to review its own decisions, it is pertinent to restate the conditions outlined under Rule 66 (1) (a) of the Rules upon which the present application is hinged. Rule 66(l)(a) of the Rules provides that: "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 on the face o f the record resulting in miscarriage o f justice." In several of our decisions, we have outlined the specific circumstances under which an application for review may be granted. For example, in Tanzania Transcontinental Co, Ltd v. Design Partnership Ltd, Civil Application No. 62 of 1996 (unreported), we emphasized: "The court will not readily extend the list o f circumstances for review, as the Court's power o f review ought to be exercised sparingly and only in the most deserving cases. This approach reflects the public policy demand for the finality o f litigation and certainty in the law as declared by the highest Court o f the land." The significance of decision certainty was further discussed in Marcky Mhango and 634 Others v. Tanzania Shoe Company Limited and Another, Civil Application No, 90 of 1999 (unreported), which underscored the sound public policy principle interes reipubh'cae ut finis fitium that litigation must come to an end, and decisions must be enforceable, The Court stated; " There can be no certainty if decisions can be varied a t any time under pressure from the losing party, as this would undermine the integrity o f the judicial system.,." See also; Exavery Malata v. R, (Criminal Appeal No. 3 of 2013) [2013] TZCA 196 (18th June, 2013; TANZLii) and Majid Goa@Vedastus v. R, (Criminal Appeal No. 11 of 2014) [2017] TZCA 184 (24th August, 2017; TANZLii). Similarly, in Lakhamshi Brothers Ltd v. R, Civil Application No. 6 of 1966, the Court of Appeal of East Africa cautioned against review applications, by stating thus: "In a review, the Court should not sit on appeal against its own judgment in the same proceedings. In a review, the court has inherent jurisdiction to recall its judgment in order to give effect to its manifest intention on what dearly would have been the intention o f the court had some matter not been inadvertently omitted," Admittedly, the Court has the power to review its decisions, however, as established in Transport Equipment v. Devram Valambhia, Civil Application No. 18 of 1993 [1994] TZCA 62 (March 11, 1994; TANZLii), such review can only occur on the following grounds: (i) Where one o f the parties was condemned unheard, (ii) Where there was a manifest error on the face o f the record which resuited in the miscarriage o fjustice, (iii) Where the Court had no jurisdiction to entertain the case\ and (iv) Where the judgment was procured by fraud. Examining the grounds of review raised, submissions and our previous decisions, it is evident that Mr. Shayo's complaint pertains to the merits of the Court's decision. Specifically, he is challenging the Court's decision to treat the irregularity related to unsworn evidence as curable, rather than nullifying the proceedings, quashing the award, and ordering a retrial. By seeking a review, Mr. Shayo is essentially requesting the Court to sit in an appeal of its own decision, which is impermissible. Our mind is settled that there is nothing to review in the impugned judgment. Our position is amplified by the stance we previously took in Mirumbe Elias @ Mwita v. R, Criminal Appeal No. 4 of 2015 [2016] TZCA 275 (October 28, 2016; TANZLii), the Court relying on Blue Line Enterprises Ltd v. The East African Development Bank, (EADB), Civil Application No. 21 of 2021 (unreported), echoed that: " / / 7 review jurisdiction, mere disagreement with the view o f the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugnedjudgment in the guise that an alternative view is possible under review jurisdiction. "[Emphasis Added] In essence, none of the pointed out conditions above existed in the present application. At most what can be gathered from the re­ examination of the impugned judgment is that the Court thoroughly deliberated on the issue of unsworn evidence, made its findings and gave reasons for such as reflected on pages 13 -17 of the said judgment. We thus could not find any reason or ground permitting us to do otherwise. For the foregoing reasons, we see no merit in the application. It is thus dismissed. DATED at DAR ES SALAAM this 30th day of July, 2024. A. G. MWARIJA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL The Ruling delivered this 31st day of July, 2024 in the absence of both parties, is hereby certified as a true copy of the original. O. H. KIN G W ELE^ DEPUTY REGISTRAR COURT OF APPEAL