John Msigala vs Pan African Energy Tanzania Limited (Civil Appeal No. 41/01 of 2024) [2026] TZCA 579 (15 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: LEVIRA. J.A.. MASHAKA. 3.A. And NGWEMBE, J.A.) CIVIL APPLICATION NO. 41/01 OF 2024 JOHN MSIGALA.............................................................................. APPLICANT VERSUS PAN AFRICAN ENERGY TANZANIA LIMITED ............................... RESPONDENT (Application from the decision of the Court of Appeal of Tanzania, Dar es Salaam Registry at Dar es Salaam) (Ndika. Kitusi & Mashaka, 33A.) dated the 4th day of January, 2024 in Civil Appeal No. 163 of 2020 RULING OF THE COURT 6th & 15th May, 2026 LEVIRA, 3.A.: In this application for review the applicant JOHN MSIGALA is moving the Court under Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules) to review its decision in Civil Appeal No. 163 of 2020. In that appeal, the respondent had challenged the decision of the High Court of Tanzania, Labour Division that revised and set aside an award made by the Commission for Mediation and Arbitration (the CMA), which dismissed the i applicant's complaint of unfair termination from employment by the respondent. The applicant was employed by the respondent as a Senior Operator and Plant Controller. However, he was terminated from employment due to misconduct. He referred his dispute to the CMA unsuccessfully. On appeal to the High Court, the decision of the CMA was overturned and later when the matter landed to the Court, it was found that his termination was fair as intimated above, hence the present application. The notice of motion is supported by an affidavit deponed by Nickson Ludovick, the learned advocate for the applicant. The applicant has advanced two grounds as follows: 1. That the Honourable Justices o f Appeal unfortunately skipped and oversaw page 13 o f the High Court decision and page 180 o f the record o f appeal where the termination letter is seen and such unfortunate skip led to miscarriage o f justice on part o f the applicant. 2. And for an order that the costs o f an incidental to this application abide by the result o f the application. 2 It is not insignificant at this juncture to reproduce the gist of the applicant's application as stated in paragraph 4 of the supporting affidavit which reads: "That the applicant is dissatisfied with the judgment o f the Court and wish the same to be reviewed and re-determined on the ground that the Court on unfortunate environment skipped to see page 13 o f the decision o f the High Court and page 180 o f the record of appeal. This Court did not say anything on these pages which in fact show that the High Court Judge had more than one line o f reasoning before summing up her decision and that the applicant was unfairly terminated on other reason not seen by this Court . " [Emphasis added] It is apparent from the above paragraph and grounds of the application that the applicant was dissatisfied with the decision of the Court and he is calling upon the Court to re-determine the appeal and vary its decision which is subject of the present review. The question that follows is, whether what the applicant is seeking is tenable or can be granted by the Court. This question shall be determined at a later stage. 3 At the hearing of the application, the applicant was represented by Mr. Nickson Ludovick, learned advocate, whereas the respondent had the services of Mr. John Kamugisha, also learned advocate. Mr. Ludovick adopted the applicant's written submissions in support of the application and the supporting affidavit as part of his oral account before the Court. Thereafter, he stated the settled position of the law that, review is done only when the error is apparent on the face of record. However, he said, recently, the Court has developed a new ground for review when there is an important issue for determination of the rights of the parties which was not brought to the attention of the Court at the hearing of the appeal. He made reference to the decision of the Court in Costantine Victor John v. Muhimbili National Hospital, Civil Application No. 188/01 of 2021 [2022] TZCA 3061 (24 October 2022). He submitted further that at paragraph 5 of the supporting affidavit, an important information which was not brought to the attention of the Court during hearing of the appeal is that, the termination letter of the applicant did not confine to the offences that were under discussion before the disciplinary committee, the CMA and the High Court. According to him, had that information been brought to the attention of the Court, it would have decided that the applicant was unfairly terminated contrary to the decision which said that he was fairly terminated. He, thus urged us to review the Court's decision and decide that the applicant was unfairly terminated. In reply, Mr. Kamugisha strongly resisted the application. He adopted the respondent's written submissions and affidavit in reply to form part of his oral account before the Court. He referred us to paragraph 4 of the affidavit in support of the application with a view of showing that, the applicant's claim that there were pages skipped in the High Court decision and page 180 of the record of appeal where the letter of termination is found, is unfounded. He submitted emphatically that, for review purposes, the record of appeal is the decision of the Court itself. Therefore, it was his prayer that, the Court should not go beyond its judgment to deal with extraneous matters of the judgment of the High Court and the termination letter because doing so is not permissible under the law. He submitted further that, the applicant is asking the Court to look at the termination and other evidence to make a finding that he was unfairly terminated. Since the letter and the High Court judgment were part of the record of appeal, he urged, the prayer by the applicant is tantamount to asking the Court to sit on appeal against its decision. This is not permissible under the law, he insisted. He supported his submission with the decision of the Court in Jireys Nestory Mutatemusa v. Ngorongoro Conservation Area Authority, Civil Application No. 570 of 2023 [2024] TZCA 133 (23 February 2025) and AFRISCAN Group (T) Limited v. David Joseph Mahende (Civil Application No. 561 of 2025) [2025] TZCA 873 (22 August 2025); where the Court declined to re-evaluate evidence because review is impossible outside the judgment. As regards the authority cited by the learned counsel for the applicant, Mr. Kamugisha said, it is irrelevant to the matter at hand and the present application is not fit for review. Finally, he urged us to dismiss the entire application with costs. Mr. Ludovick made a short rejoinder insisting that, the decision of the Court in Costantine Victor John's case (supra) introduced a new ground for review as intimated earlier. He concurred with the learned counsel for the respondent and the authorities he citied that, the record of appeal for review purposes is the judgment of the Court and the appended order. Nonetheless, he said, the case he cited widened the scope of review. Thus, 6 the letter and judgment of the High Court which were not considered initially by the Court can now be considered through review. He prayed for the application to be allowed. Having heard the submission by the parties and examined the entire record of the application, we now revert to consider the pending issue which we raised earlier; whether the application at hand is tenable. As introduced above, the notice of motion was preferred under Rule 66 (1) (a) of the Rules. For easy reference, this provision reads: "66 - (1) The Court may review its judgment or order4 \ 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 the miscarriage o f justice." It is plain from the above provision that review is restricted only when the decision is based on a manifest error on the face of the record resulting in the miscarriage of justice. This means, if the complaint or alleged error is not apparent on the face of the record and/ or requires re-evaluation of evidence and discussion, is not fit for review. In Tanganyika Land Agency Limited and 8 Others v. Manohar Lai Aggrwai, Civil Application No. 17 of 2008 [2009] TZCA 257 (29 April 2009), the Court cited the Indian decision in M/s Thunga Bhadra Industries Ltd v. Government of Adra Pradesh AIR 1964 SC 1372, where it was stated: "A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detailbut it would suffice for us to say that where without any elaborate argument one could point to the error and say here is a substantial point o f law which stares one in the face, and there could reasonably be no two opinions entertained about it ; a dear case o f error apparent on the face o f the record would be made o u t " The excerpt above sets a clear position that an apparent error does not require a long process of reasoning or re-evaluation of evidence to discover it. In the present application, the applicant stated categorically at paragraph 4 of the supporting affidavit that, he was not satisfied with the judgment of the Court and wish the same to be reviewed and re-determined citing the pages which he thought were skipped in the High Court decision and the record of appeal. The applicant is asking the Court to go back to the termination letter to re-examine it and see what were the reasons for termination. With respect to the learned counsel for the applicant, much as he stated that he is quite aware of the law governing review applications, we do not agree with him that dissatisfaction of the applicant with the judgment of the Court is one of the grounds for review. What the applicant claims to be an error on the face of record, in our settled opinion, is not. Instead, we find the purported application for review before us to be an appeal through the back door which we are not ready to entertain. The application and submission by the learned counsel for the applicant invited us to go back to the record of appeal which was then placed before the Court. The said record is not part of the record of the application at hand. Nonetheless, we note that the Court in its judgment considered the nature of misconduct and legal relationship between the parties herein. Therefore, any further attempt to determine what we already determined will amount to sitting on appeal against our own decision. It is settled principle that there should be an end of litigation. The learned counsel for the applicant relied heavily on the decision of the Court in Costantine Victor John (supra) in arguing that, the Court has introduced a new ground for review. We had opportunity to go through that decision and we wish to state that, circumstances in that decision are distinguishable from the present case. In the said case, the applicant who was employed by the respondent was terminated from work having failed to account for 7 days which he did go to work. The Court only recognized that the applicant did not abscond from work on a number of day's alleged, taking into consideration that other days were holidays. The conclusion was that had the Court been availed with that information, it would not have arrived at the conclusion it reached. Again, with respect, we are unable to agree with Mr. Ludovick that the Court introduced a new ground for review. The Court did not re-evaluate the evidence on record as the applicant would wish us to do in this application. The decision of the Court in that regard did not go beyond its judgment but it dealt with an error occasioned by miscalculation. This is not the case herein. Having so stated, we find that the application at hand does not fall squarely under the criteria provided by the law in terms of Rule 66 (1) of the 10 Rules for dissatisfaction of the applicant with the decision of the Court, is not among the grounds for review. Hence, the present application is untenable. We therefore, dismiss it with costs. DATED at DAR ES SALAAM this 13th day of May, 2026. M. C. LEVIRA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL Ruling delivered this 15th day of May, 2026 in the presence of Ms. Norah Abel Yanse, learned counsel for the Applicant, Mr. Tumaini Michael, learned counsel for the Respondent and Ms. Janekissa Bukuku, Court clerk, is hereby certified as a true copy of the original. ITARANIA EPUTY REGISTRAR ^y/cOURT OF APPEAL ---------------------------- li