CIVIL APPEAL NO 232 OF 2022 THE REGISTERED TRUSTEES OF THE CIVC UNITED FRONT CUF VS JUMA KASESA JUMA 6 OTHERS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: GALEBA. J.A.. FIKIRINI. J.A. And ISMAIL, 3.A.^ CIVIL APPEAL NO. 232 OF 2022 THE REGISTERED TRUSTEES OF THE CIVIC UNITED FRONT(CUF).................................................................. APPELLANT VERSUS 3UMA KASESA JU M A ..............................................................1st RESPONDENT SAADA KATIMBA........................ ......................................... 2nd RESPONDNET YUSUPH KATIMBA........ .......................................................3rd RESPONDENT 3ABIR IDRISSA Y U N U S........................................................ 4™ RESPONDENT FABIAN MKOBA..... ...............................................................5th RESPONDENT LUCY P. MAGANGA............................................................ 6™ RESPONDENT EMMANUEL MALIMA........................ ..................................... 7™ RESPONDENT (Appeal from the Decision of the High Court of Tanzania Labour Division at Dar es Salaam) fRwizile. 3.^ dated the 1st day of November, 2021 in Revision No. 297 of 2020 RULING OF THE COURT 10th & ISP March, 2025 GALEBA, 3.A.: The parties to this matter and Fahamu Company Limited, not a party to this appeal (Fahamu Ltd), were involved in a labour dispute before the Commission for Mediation and Arbitration (the CMA) at Dar es Salaam. One of the issues for determination at the CMA was, who was the employer of the respondents between the appellant and Fahamu Ltd. In resolving that issue, at page 257 of the record of appeal, the CMA held that the appellant in this appeal was the respondents' employer and not Fahamu Ltd. Being aggrieved by that decision, the present appellant filed Labour Revision No. 297 of 2020 at the High Court of Tanzania, Labour Division at Dar es Salaam, against only the present respondents without joining Fahamu Ltd. Although Fahamu Ltd was not made a party to the said matter in the High Court, in the appellant's affidavit supporting that application at clause 11 (b) at page 277 of the record of appeal, quoted the following issue for determination by the High Court: "(b) That whether it was proper and correct for the trial arbitrator to disregard the weight o f the evidence o f the applicant (the appellant in this appeal) and the respondents' witnesses in respect o f the employment relationship between the respondents and Fahamu Co. Ltd." In supporting the above point, before the High Court, in her written submissions at page 329 to 330 of the record of appeal, the appellant submitted: "We further submit that it was also established by Thomas MaHma, that the respondents were employees o f Fahamu Co, Limited\ the evidence which [corroborated] the respondents'evidence and documents." The High Court dismissed the appellant's application, hence the present appeal, challenging the decision of the High Court. The first ground of appeal in this matter is the following: "That the appellate Judge erred in law for not making any finding on the existence o f an employment relationship between the respondents and Fahamu Company Limited. " In short, from the CMA, through to the High Court up to here, the appellant's contention has consistently been and continues to be that, the appellant never employed the respondents, and that their employer was Fahamu Ltd. That contention has been strongly refuted by the respondents all along, maintaining the position that their employer, was none other than the appellant. Considering the above history of the dispute between the parties in this appeal, and taking into account the complaint in the first ground of appeal, we invited parties to submit to us, on whether or not the said Fahamu Ltd had interest in the appeal before us, and if so, whether a notice of appeal in this matter was served on that company in terms of rule 84 (1) of the Tanzania Court of Appeal Rules 2009 (the Rules). Mr. Mashaka Ngole learned advocate, who was acting for the appellant, was clear to us, that not only the outcome of the appeal, but also determination of the first ground of appeal in the absence of the said company would violate Fahamu Ltd's right to be heard. However, to cure the anomaly, the learned advocate advanced two prayers; first, he invited us to invoke rule 4 (2) (b) of the Rules and order service of the said notice of appeal to the said Fahamu Ltd. Second, he relied on rule 111 of the Rules, imploring us to permit him to amend the notice of appeal by including the name of Fahamu Ltd, which was missing in the notice of appeal. That way, he concluded, the appeal could be salvaged. In reply, Mr. Nyaronyo Kicheere learned advocate for the respondents submitted that, the appeal was incompetent because the notice of appeal did not include the name of a party who would be affected by the outcome of the appeal, namely Fahamu Company Ltd. He concluded that the only available course of action to take was to strike out the appeal. We will start with Rule 84 (1) of the Rules, which provides that: "84. -(1) An intended appellant shall, before, or within fourteen days after lodging a notice o f appeal, serve it on all persons who seem to him to be directly affected by the appeal; but the Court may, on an ex parte application, direct that service need not be effected on any person who took no part in the proceedings in the High Court. " [Emphasis added] In view of this provision, we will address Mr. Ngole's two prayers, starting with the issue of amendment of the notice of appeal under rule 111 of the Rules. In terms of rule 84 (1) of the Rules, it is mandatory for the appellant to serve a notice of appeal on all persons who seem to him to be directly affected by the appeal. It is immaterial that one took part in the proceedings in the High Court, or that one's name is contained in the notice of appeal as per rule 83 (3) of the Rules. The one and only guiding consideration in determination of which persons upon whom to effect service of the notice of appeal, is whether or not, such a person is likely to be directly affected by the appeal. That is to say, the fact that Fahamu Ltd was not named in the notice of appeal, is an irrelevant consideration for purposes of service of the notice of appeal on that company. For that reason, leave to amend the notice of appeal, even if we were to grant the order, we do not see how the amendment would cure the illegality of non-service of the notice onto that company. Next is Mr. Ngole's other prayer of being permitted to effect service of the notice of appeal on the said Fahamu Ltd under rule 4 (2) (b) of the Rules. In considering that prayer, it is significant to observe that, the time period within which to effect service of the notice of appeal is a regulated aspect in the Rules of the Court. According to rule 84 (1) of the Rules, service of the notice of appeal must be effected within fourteen days of lodging it. That is to say, as the notice of appeal in question was lodged on 8th November, 2021, the same was supposed to be served on the respondents and to Fahamu Ltd, latest on 22nd November, 2021, but that was not done, in respect of the latter company. In our view, permitting the appellant to serve the notice of appeal under rule 4 (2) (b) of the Rules, would be tantamount to extending time within which to serve the notice, which jurisdiction is exercisable only under rule 10 of the Rules, of course, in appropriate proceedings. To be clear with Mr. Ngole, the order for service of the notice, sought under rule 4 (2) (b) of the Rules is not one of the remedies available in a situation where a notice of appeal is not served according to law. In fact, settled law as known to this Court is that, where a notice of appeal is not served, within the prescribe time, an essential step in the appeal process is skipped, and the appeal in question is rendered incompetent, liable for being struck out. That is a very established position of the Court in many decisions, including the decision of its Full Bench in the case of Gideon Wasonga and Three others v. Attorney General and Two Others, Civil Appeal No. 37 of 2018 (unreported), where the Court observed: "In this case, since the notice o f appeal was served on the respondents out o f time, therefore, theappeai is incompetent for failure to comply with Rule 84 (1) o f the Rules.... In this case Rule 84(1) o f the Rules is a mandatory procedural provision for any party who wishes to institute a civil appeal to this Court. It is among the factors which determines the competence o f the appeal and hence goes to the root o f the matter. On the same position, see also this Court's recent decision in Estomii Orongai (Administrator of the Estate of the late Orongai Nailugisho or Orongai Nailugiho) v. Edward Memirieki and 33 Others [2025] 7ZCA71. In conclusion, as was admitted by Mr. Ngole that Fahamu Company Ltd was directly affected by the appeal, but did not effect service of the notice of appeal on that company, this appeal is incompetent. Accordingly, it is hereby struck out with no order as to costs, since the underlying dispute was a labour matter. DATED at DAR ES SALAAM, this 18th day of March, 2025. Z. N. GALEBA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Ruling delivered this 18th day of March, 2025 in the presence of Mr. Mashaka Ngole, learned counsel for the Appellant and Mr. Nyaronyo Mwita Kicheere learned counsel for the Respondents, is hereby certified as a true copy of the original. , R. W. CHAUNGU i DEPUTY REGISTRAR COURT OF APPEAL