Elias Augustine vs Chief Secretary Presidents Office & Others (Civil Appeal No. 442 of 2023) [2026] TZCA 517 (11 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: LILA, J.A., MASOUD. J.A. And MLACHA. J.A.^ CIVIL APPEAL NO. 442 OF 2023 ELIAS AUGUSTINE..................................................................................APPELLANT VERSUS THE CHIEF SECRETARY, PRESIDENTS OFFICE ............................... 1 st RESPONDENT THE PUBLIC SERVICE COMMISSION............................................. 2 nd RESPONDENT THE SHINYANGA MUNICIPAL COUNCIL........................................3 rd RESPONDENT THE HON. ATTORNEY GENERAL.................................................... 4 th RESPONDENT (Appeal from the Judgment and Order of the High Court of Tanzania, (Labour Division) at Dar es Salaam) (Aboud. J.^ dated the 16th day of April, 2021 in Miscellaneous Labour Application No. 488 of 2019 RULING OF THE COURT ffh & n th May/ 2026 MLACHA. J.A.: When this appeal was called on for hearing today, Mr. Habraham Jacob Shamumoyo, learned advocate, appeared for the appellant, whereas Mr. Kitia Turoke, learned Senior State Attorney who teamed up with Mr. Samwel Mahuma and Mr. Fabian Sefu, both learned State Attorneys, appeared for the respondents. At the onset, the Court was invited to hear a preliminary objection, notice of which was lodged earlier on in terms of rule 107 (1) of the Tanzania Court of i Appeal Rules, 2009 (the Rules) and served to the appellant. The preliminary objection reads as follows: "The notice of appeal contained in the record of appeal at pages 159-60 is fatally defective for not being served to the respondents hence renders the appeal incompetent" Both Mr. Turoke and Shamumoyo were at one that the notice of appeal appearing at pages 159- 160 of the record of appeal does not carry signatures of the respondents or of a State Attorney from the office of the Solicitor General, who ordinarily represent them, as proof of service. They differ on a narrow point which is the subject of this ruling. Whereas Mr. Turoke finds this as a contradiction of rule 84(1) of the Rules which has a mandatory requirement to serve the notice of appeal to the other side within 14 days after filing, failure of which amounts to a failure to take essential steps in instituting the appeal and thus under rule 89 (2) of the Rules warranting the striking out of the appeal, Mr. Shumamoyo has the view that the defect can be cured by the overriding objective principle given the fact that he has an affidavit from an officer of his office showing that service was done by EMS services. Despite the fact that he had no evidence from the EMS office proving that they affected service to the respondents, he urged the Court to dismiss the preliminary objection. In rejoinder, Mr. Turoke impressed upon us to find that failure to comply with rule 84 (1) of the Rules cannot be defeated by the overriding objectives principles. He cited our decision in Bank of India (Tanzania) Limited v. Y. P. Road Haulage Limited [2021] TZCA 461 to support his contention. On the affidavit, he had the view that it was of no assistance to the appellant in the absence of evidence from the EMS office that they affected service to the respondents. On our part, having examined the requirements of rule 84(1) of the Rules and considered the submissions of the parties, we are in agreement with Mr. Turoke that failure to comply with rule 84(1) of the Rules renders the appeal incompetent. Neither do we think that, the affidavit of an officer from the office of Mr. Shamumoyo showing that service was affected by EMS can change the position. See our decisions in Bank of India (Tanzania) Ltd (Supra), which followed our decisions in National Bank of Commerce Limited and Another v. ballast Construction Co. Ltd, [2019] TZCA 17 Hamisi Pascal v. Sisi kwa Sisi Panel Beating and Enterprises Ltd [2020] TZCA 1899, Oliver Murembo v. The Registered trustees of Benjamini Mkapa Foundation, [2020] tzca 362 and John Nyakimwi v. The Registered Trustees of Catholic Dioceses of Musoma, [2019] TZCA 455. The application of the overriding objective principle, otherwise known as the oxygen principle, to cure defects of non compliance with rule 84 (1) of the Rules was discussed in Hamis Pascal (Supra). The Court had this to say: 3 'We wish to emphasis that ; since in this case, by virtue of the provision o f rule 84 (1) of the Rules, compliance with the requirement of serving a notice o f appeal has a life time, in our considered view, the appeal cannot be salvaged by invocation of the oxygen principle. This is because the question o f limitation is synonym with jurisdiction". [Emphasis supplied] With this exposition, with profound respect to Mr. Shamumoyo, we find the appeal incompetent and strike it out. DATED at TABORA this 8thday of May, 2026. S. A. LILA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL Ruling delivered this 11th day of May, 2026 via virtual Court, in the presence of Mr. Habraham Jacob Shamumoyo, learned counsel for the Appellant, Mr. Samwel Mahuma, learned State Attorney for the Respondents and Ms. Rehema Makakala, Court Clerk; is hereby certified as a true copy of the original. R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 4