20120816 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MUNUO, J.A., KILEO, J.A., And MJASIRI, J.A.) CIVIL APPLICATION NO. 114 OF 2011 TUICO (ON BEHALF OF IT'S MEMBERS) ................................................. APPLICANT VERSUS THE CHAIRMAN INDUSTRIAL COURT OF TANZANIA AND ANOTHER ............ ~1~·~.:~ ••••••••••••••••••••••••••••••••••••••••••••••••• RESPONDENTS {Application for Review from.the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo, and Mjasiri, JJA.) dated 25th day of August, 2011 in Civil Appeal No. 67 of 2010 RULING OF THE COURT 3 July & 30th August, 2012 MJASIRI, J.A: The applicant has lodged ,a Notice of Motion under Rule 66 (1) (a) and (b) of the Court of Appeal Rules, 2009 (Court Rules) seeking for a review of that decision, supported by the affidavit of Imam Hassan Daffa who was the advocate for the· appl.icant. The grounds of application were as follows: 1 .. ·n (a) That the Court erroneously interpreted section 28 (2) of the Industrial Court of Tanzania Act Cap 60 R.£ 2002 which requires all persons sitting in a revision to be different from those who sat on the Court when it first heard the dispute. (ii) The Court misdirected itself by its failure to interpret the term 11Chairman" in accordance ,with clear provisions of the Industrial Court (Revision Proceedings) Rules G.N. No. 268 of 1992. (b) That the decision of the Court is a nullity for the reason that the decision departs from the fundamental rule of natural Justice/ nemo Judex in cause sua/ in the absence of circumstances warranting such departure. The applicant had appealed to this Court in Civil Appeal No. 67 of 2010 against the decision· of. :the High Court (Manento, J.) dated 14 February, 2007. The main point of contention was that the Chairman of the Industrial Court improperly sat on revision in a matter he had 2 determined at first instance in violation of the principles of natural justice. The Court of Appeal dismissed the appeal relying on Tanzania Breweries Limited v Mohamed Kazingumbe, Civil Appeal No. 53 of 2008 CAT, (unreported) on the application of section 2, 17 and 28 (2) of the Industrial court Act, Cap 60, R.E. 2002. For the present application before us, the applicant TUICO on behalf of its members was represented by Mr. Abdon Rwegasira, learned advocate, while the respondents' lawyer was Ms. Monica Otaru, learned Principal State Attorney. Mr. Rwegasira pointed out that the Court misinterpreted section 28 (2) of the Industrial Court Act. He also stated that the Court did not consider properly the definition of the word chairman under the Industrial Court Revision of Proceedings Rules. He urged the Court to take cognizance of G. N. No. 268 of 1992 which has to be read together with the Industrial Court Act (supra). 3 ' ' .- ·n Ms Otaru on her part stated that she agreed with the decision of the Court. According to her, G.N. No. 268 of 1992 was brought about to deal with a situation where the chairman was not there, then the deputy chairman could have presided. The major issue for consideration is whether or not this application meets all or any of those criteria set out under section 66 the Court Rules. Section 66 (1) of the Court Rules provides as under:- "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 of the ·record resulting in the miscarriage ofjustice/ or (b) A party was strongly deprived of an opportunity to be heard/ 4 (c}The Court's decision is a nullity; or ( d) The Court had no jurisdiction to entertain the case; or (e) The judgment was procured illegal!½ or by fraud or perjury. " In Transport Equipment Ltd v Devram Valambia, Civil Application No. 18 of l99J (unreported), a full bench of the Court of Appeal of Tanzania considered the Court's power to review its ,decision and held that the Court had inherent powers to review its decision under the following circumstances. (i) Where there is a·· manifest error on the face of the record which resulted in a miscarriage ofjustice. (ii) Where the decision was attained by fraud or ' (iii) Where a party was wrongly deprived of the opportunity to be heard. 5 In looking at the grounds raised by the applicant, it is obvious that they are a mix of an appeal ·. and review and basically the applicant is complaining against the decision of this Court and the interpretation and application of the law. I We are of the considered view that there is no error apparent on the face of the record to warrant the review order sought. According to Mulla on Indian Civil Procedure Code (14th Edition) at page 2335/36 an error apparent on the face of the record is stated thus: '~n error apparent on the face of the record must be such as can be seen by one who writes and reads, that is an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two options." See African Marble Company Limited v Tanzania Saruji Corporation, Civil Application No. 132 of 2005 CAT (unreported). 6 In Abasi Balinda v Fredrick Kangwamu 1963 EA 557, it was held as follows: "A point that may be a good ground of appeal may not be a grou_nd for an application for review. Thus an erroneous view of evidence or of law is not a ground for review though it may be a good ground for an appeal. " In Nalagarh Delhati Cooperative v Beli Ram 1981 AIR HP1, the grounds for review were stated as under:- (i) Discovery of new important matter or evidence which despite due diligence was not within the knowledge or could not be produced. (ii) Mistake or error apparent on the face .of the record Having regard to the position of the law as aforesaid, we do not consider that this would be a proper case for the Court to 7 ·, exercise its jurisdiction conferred upon it by section 66 of the Court Rules. We find no merit in the application and hereby dismiss the application for review with costs. DATED at DAR ES SALAAM this 16th day of August, 2012. E.A MUNUO JUSTICE OF APPEAL S.MJASIRI JUSTICE OF APPEAL l~~~:::::=::t::-Y.:-M- IZU DEPUTY REGISTRAR COURT OF APPEAL 8