REV NO 15801 OF 2024 TANZANIA PORTLAND CEMENT PLC VRS LUCAS MWAKABANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 15801 OF 2024 CASE REFERENCE NO. 202407031000015801 BETWEEN TANZANIA PORTLAND CEMENT P L C ......................................... APPLICANT VERSUS LUKAS MWAKABANGA........................................................ RESPONDENT RULING Date of last Order: 24/ 08/2024 Date of Ruling: 12/ 09/2024 MLYAMBINA. J. The decisive legal issue which has arisen in this application is; whether the Labour Court (M/yambina J.) is functus officio after the preliminary objection on filing extension o f time to file revision against a grant o f condonation ruling by CMA was dismissed by the same Court (Opiyo J.), and is thus, prevented from considering the same objection at revision stage. In the case of International Tax Consultants Limited v. Macdonald Justus Rweyemamu, Labour Revision No. 199 of 2023, High Court Labour Division, Dar es Salaam, this Court was of the position that the decision on grant of condonation is an interlocutory order. On the other hand, in Lucky Games Ltd v. Salim Madati, High Court of Tanzania Labour Division at Dar es Salaam, Revision Application No. 53 of 2023 (unreported), this Court was of the position that a decision on application for condonation before the CMA is a final decision. In view of the absolutely clear conflict between two decisions of this Court, in the process of composing judgement in this application, I realized that there is a necessity for the parties to address the Court on; whether this matter is interlocutory or not. Upon affording them with an opportunity to address the Court, Ms. Stella Simkoko, the Applicant's Advocate was of the position that this Court is ' functus officio' to determine the issue. She therefore, had nothing to add than what she submitted before Hon. Judge Opiyo in Revision No. 28597involving the same parties herein. On the other hand, Mr. Rahimu Mbwambo, the Respondent's Advocate shared the same view with Ms. Stella. For this Court to conclude whether it is " functus officio” ox not will have to critically examine the " functus officio doctrine." The phrase " functus officio"means that having performed the function thus ceased to have any authority over a matter. The Black's Law Dictionary, 11th Edition 2019 defines the doctrine of " functus o fficio" to mean; a task performed. The doctrine of "functus officio" (that is, having performed the office) holds that once an Arbitrator renders a decision regarding the issues submitted, he or she lacks any power to re-examine that decision. Again, the Legal Dictionary by S.L. Swalan and U. Narang, 25th edition, 2015 defines the doctrine o f" functus officio"to mean: a person who has performed his duty or whose office or authority has come to an end is said to be functus officio. Further, in the case of School Trustees of Washington City Administrative Unit v. Benner, 222 N.C. 566, 24 S.E.2d 259, 263, quoted in The Blacks Law Dictionary (supra) defined the doctrine of " functus offic/o"a$ follows: Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority; and to an instrument, power, agency, etc., which has fulfilled the purpose o f its creation, and is therefore of no further virtue or effect. Equally, in the case of Blanton Banking Co. v. Taliaferro, Tex. Civ. Appv 262 S.W. 196 it was emphasised that: It is a settled principle of law that a Court cannot be " functus officio" unless it has made a decision and communicated its decision to the parties. In Kamundu v. R (1973) EA 540 the EA, the Court of Appeal held that: A Court becomes " functus officio"when it disposes of a case by a verdict of guilty or passing sentence or making some orders finally disposing of the case. The above position was followed by Tanzania Court's in the case of Bibi Kisoko Medard v. Minister for Lands Housing and Urban Developments and Another [1983] TLR 250 in which the late Mwakibete J, held that: A matter of judicial proceedings once a decision has been reached and made known to the parties, the adjudicating tribunal thereby becomes "functus officio" From the above definitions, it is crystal clear that the doctrine o f 11functus officio" restricts a Judge or Magistrate or the Arbitrator to perform a function which has been performed already. It means that; when a matter is finally determined, it cannot be redetermined. In other words, the doctrine of "functus officio” means that once the Court has passed a ruling, it becomes" functus officio"or without further authority and it cannot alter or review the ruling except to correct clerical or arithmetical errors or error apparent in the ruling. The general principles of the common law applicable to the variation of orders of Court were summarised by Trollip JA in Firestone South Africa (Pty) Ltd v. Genticuro, AG1997_7 html as follows: The general principle, now well established in our law, is that, once a Court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes "functus o f f ic io Its jurisdiction in the case having been fully and finally exercised, its authority over the subject- matter has ceased. It was further stated that certain exceptions to this general principle have been recognised and are referred to in theFirestonejudgment.l997_7.html. That, they are variations in a judgment or order which are necessary to explain ambiguities, to correct errors of expression, to deal with accessory or consequential matters which were "overlooked or inadvertently omitted", and to correct orders for costs made without having heard argument thereon. The other notable exception on the doctrine of " functus officio" is where there is amendment of the law or change of position by the Court of Appeal on procedural aspect. In the case of Makorongo v. Consigilio [2005] 1 EA 247, as cited in the case of Felix Mosha and Another v. Exim Bank Tanzania Ltd, Civil reference No. 12 of 2017, Court of Appeal of Tanzania at Dar es Salaam, the Court stated thus; The general rule is that unless there is a clear indication either from the subject matter or from the working of the Parliament, that Act should not be given a retrospective construction. One of the rules of construction that a Court uses to ascertain the intention behind the legislation is that if the legislation affects substantive rights, it will not be construed to have retrospective operation, unless a clear intention to that effect is manifested, whereas if it affects procedure only prima facie it operates retrospectively unless there is good reason to the contrary. In the premises of the foregoing, the question is; whether this Court is functus officio to determine if the matter is interlocutory or not After examining the records, I found that the objection was raised in Revision No. 28597 and it was decided by my fellow Judge Hon Dr. Opiyo as stated by both parties. The objection was on the same issue, that the matter is interlocutory. After considering the argument of both parties, the Court overruled the preliminary objection and ordered the matter to proceed on merit hence this application. Under the afore circumstances, I find the contention that the Court \s" functus officio"ax\6t therefore, has no jurisdiction to set aside its ruling, is valid. The reason is that the issue whether the application is interlocutory or not was finally determined by my fellow Judge. It is a settled position that a Judge or Magistrate should refrain from setting aside the decision of a fellow Judge. This is the Court of appeal position in the case of Maria Chrysostom Lwekamwa v. Placid Richard Lwekamwa & Another, Civil Application No. 549/17 of 2019, Court of Appeal of Tanzania, Dar es Salaam. It cannot be over-emphasised that the discipline demanded by a precedent of the Court of Appeal in the case of Maria Chrysostom Lwekamwa (supra) is of great importance to uphold certainty of law, predictability, consistency of decisions, transparency, comity of Courts and respect of Court's decisions within the State. Contrary of it, would cause devastating consequences. I take note that there are two competing interests in this case. One, collective responsibility of the Court which imposes the duty to the Judicial Officers for upholding judicial principles of uniformity in decision making. Two, the Judicial Officer's duty of keeping an open mind of reaching the same position on every case of similar facts while upholding stare decisis principle. The first competing interests demands respect of the decision among brethren and sisters in the legal fraternity which is the dispensable foundation of precedents and certainty of the law for proper development of law and justice. The second competing interests demands not outwit the first interests. As such, personal views of the judicial officer must be aimed to develop jurisprudence while adhering to predictability and consistency of decisions unless there are compelling reasons to depart from the well-established principles by fellow judicial officers or by himself/herself. At any yardstick of reasoning, it is the principle of law established by rule of practice, case law, prudence and professional conduct which bars one Judge from setting aside a decision of a fellow Judge of competent jurisdiction. Such position is reflected in the case of Mohamed Enterprises (T) limited v. Masoud Mohamed Nasser, Civil Application No. 33 of 2012, Court of Appeal of Tanzania at Dar es Salaam. In this application, since I still maintain that the decision on grant of condonation by the CMA is an interlocutory order, and for the sake of upholding respect of the decision of a fellow Judge on similar facts that I would have different position, I find it in the interests of great justice by upholding collective responsibility for this matter to be determined on merits by another Judge. I equally find that even in application of the exceptions of the general rule stated in the case of Firestone (supra) and any other exceptions, this Court is ceased with jurisdiction to determine the issue at question. The same Court's position was stated in the case of Maria Chrysostom Lwekamwa (supra) where it was held that: It is trite law that when a Court finally disposes a matter, it seizes to have jurisdiction over it. Accordingly, to maintain consistence of my decision which is yet to be upheld or over ruled by the Court of Appeal, and for the interests of justice, let another Judge determine this application on merit. In the case of Gilbert Aiphonce Mgoyo v. Republic, Criminal Revision No. 1 of 2020, High Court of Tanzania at Iringa District Registry, I discussed at length the reason why a Successor Judge or Deputy Registrar or Magistrate or Chairman or any Judicial Officer may compose a judgement or ruling or issue an order of the matter heard or ordered to be disposed by way of written submission by his/her predecessor. Equally in this case, I maintain the position in the case of Gilbert Aiphonce Mgoyo (supra) and the reasons stated therein. It is therefore my view that, the Successor Judge is legally entitled to proceed to determine the application which was heard by way of written submissions by a fellow Judge. In the result, I hereby recuse myself from the disposition of this case because its determination will automatically change my position regarding revision against grant of condonation by the CMA which has already been made in various cases including the case of International Tax Consultants Limited (supra). Let the application be determined on merits by another Judge who maintains that decision on grant of condonation by CMA is final. It is so ordered. Y. J. MLYAMBINA JUDGE 12/09/2024 Ruling delivered and dated 12th September, 2024 at 14:20 hours in the presence of Counsel Chali Juma for the Applicant and Chali Juma holding brief of Stella Simkoko for the Respondent.