Saleh Hassan Mjinja vs Vocational Education & Training Authority (VETA) (Civil Application No. 47 of 2025) [2026] TZCA 503 (7 May 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: FIKIRINI. J.A., RUMANYIKA. J.A. And ISSA, J.A.l CIVIL APPLICATION NO. 47 OF 2025 SALEHE HAS5AN MJINJA ......................... ..............................APPLICANT VERSUS VOCATIONAL EDUCATION AND TRAINING AUTHORITY (VETA) ........................................... RESPONDENT (Application for Review of the decision of the Court of Appeal of Tanzania, at Dar es Salaam) fLila, Fikirini. and Mlacha. JJ. A ^ dated the 19th November, 2024 in Civil Appeal No. 508 of 2023 RULING OF THE COURT 30thApril & 7th May, 2026 ISSA. J.A.: This is an application by a notice of motion made under rule 48 (1) and 66 (1) (a) and 66(2) of the Tanzania Court of Appeal Rules, 2009 (the Rules) for review of the judgment of the Court (Lila, Fikirini and Mlacha, JJ.A) dated 19th November, 2024 in Civil Appeal No.508 of 2023. In support of the application, Saleh Hassan Mjinja, the applicant deposed an affidavit and in prosecuting his application, he had the services of Ms. Yusta Kibuga, learned counsel. Mr. Ayoub Gervas Sanga, learned Senior

State Attorney assisted by Ms. Christabella Madembwe, learned State Attorney appeared for the respondent. On their part, they did not file an affidavit in reply. Before dealing with the merits of the application, it is opportune to narrate brief background facts of the case which gave rise to the instant application. The applicant was employed by the respondent as a Laboratory Instructor on 15th August, 2002 and was stationed at Mtwara. Later on, he was transferred to Dar es Salaam where he was terminated on 21s t January, 2009. He preferred a labour dispute at the Commission for Mediation and Arbitration at Dar es Salaam (the CMA) vide CMA/DSM/TEM/74/2010A on 1s t March, 2010. The applicant was unsuccessful as the dispute was dismissed on 8th July, 2010. The record is silent on what happened afterward, but the applicant resurfaced in 2020 and filed a fresh dispute which was dismissed for being res-judicata. After the applicant delayed in challenging the decision at the High Court by way of an application for revision, he lodged an application for extension of time to file revision vide Civil Application No. 302 of 2022. The application was dismissed thereby denying him extension of time. Aggrieved, the applicant appealed to the Court in Civil Appeal No. 508 of 2023 subject of the instant review. The appeal hit a snag when the

respondent raised two preliminary objections on the point of law that, the applicant failed to serve the notice of appeal to the respondent within 14 days as required by rule 84 (1) of the Rules and that, the appeal was time barred for offending the mandatory provisions of rule 90(1) of the Rules, as the applicant failed to serve the respondent with the written letter requesting the Registrar of the High Court to supply the applicant with the copy of the proceedings and judgment for appeal purpose. The applicant's advocate, Ms. Kibuga argued before the Court that, the applicant served the respondent both the copy of notice of appeal and a letter requesting for appeal documents by way of Expedited Mail Services (EMS) on 9th November, 2022 immediately after lodging the notice of appeal on 8th November, 2022, but conceded that, the copy of the receipt thereof, to prove the service, was missing in the record of appeal for the reason that the applicant had misplaced it. That being the state of affairs, the Court sustained both points of objection and struck out the appeal. Undeterred, the applicant filed the instant application asking the Court to review its decision upon the grounds of manifest errors on the face of record and the discovery of new and important evidence. He substantiated the grounds in the notice of motion as follows:

1. The Ruling was based on a manifest error on the face of the record because the Honourable Justices (sic) o f the Court failed to consider circumstantial evidence adduced by the Applicant that served upon the Respondent with Notice o f Appeal and Request for Ruling,. Drawn Order and Proceedings of SP day o f November, 2022 by EMS. Further that the Respondent lodged the Notice o f Address for Service on the 21st day of November, 2022 which is within statutory period.
2. The Ruling was based on a manifest error on the face of the record because the Hon. Justices of the Court failed to recognise that the Certificate of Delay was erroneously certified
3. There is discovery o f new and important evidence which after the exercise of due diligence could not be produced by the Applicant at the time when the Order was made.
4. There is discovery o fnew and important matter which after the exercise o f due diligence was not within the knowledge o f the Applicant at the time when the Order was made.

In amplifying the grounds of review, Ms. Kibuga abandoned the 2n d , 3r d and 4th . Further, she adopted the written submission filed earlier and intimated the Court that, she will argue only the 1s t ground of review. Arguing the 1s t ground of review, Ms. Kibuga admitted that, when the appeal subject of the present review was determined there was no proof of service of the notice of appeal and the letter requesting the Registrar to supply the appeal documents. The EMS receipt which was a proof of service was misplaced by the applicant; hence, the appeal was found time-barred. She added that, the applicant has finally found the misplaced receipt and he has attached it to the instant application. The service was affected on 10th November, 2022 and the applicant complied with the law. She prayed for the application to be allowed by the Court. When the Court probed Ms. Kibuga whether that was an error manifest on the face of record, she readily conceded that it was not an error manifest on the face of record. Upon this admission, Ms. Kibuga prayed to revive the 3r d ground of review in which she argued that there was a discovery of new evidence. Again, when probed by the Court whether it was one of the grounds of review under rule 66 of the Rules, she conceded again that it was not a ground of review. This time she changed course and argued that the applicant was wrongly deprived of

an opportunity to be heard in violation of rule 66 (1) (b). She prayed for the appeal to be allowed. Mr. Sanga, on his part, argued that in an application for review the Court has to look at sufficiency of grounds provided in the Notice of Motion and supporting affidavit. In the instant application he submitted that, the 1s t and 2n d grounds of review are on manifest error on the face of record while the 3r d and 4th are based on discovery of new evidence. He argued that discovery of new evidence is not a ground of review under rule 66 of the Rules and urged the Court not to consider it. He added that the wrongly deprivation of the right to be heard is a statement from the bar which was not in the application. Hence, he implored the Court to dismiss it. With respect to the 1s t and 2n d grounds of review which are based on the alleged apparent error on the face of record; Mr. Sanga submitted that, there was no error apparent on the face of the record. What was brought in Court was an appeal in disguise; the arguments brought forward by the applicants were raised and decided by the Court. The proof of service was not there and the applicant conceded to that fact. To support his argument, he cited the Court's decision in Dativa Nanga v. Jibu Group Company Limited and Another [2023] TZCA 17805 and

Frady Tajiri Chawe (As Administrator of the Estate of the Late Donatus Chawe Sanga) and 433 Others v. TANESCO [2026] TZCA 343. He concluded that, there is no error apparent on the face of record and prayed for the application to be dismissed. In the rejoinder, Ms. Kibuga had no much to say. She reiterated her prayers and urged the Court to consider substantive justice. Before embarking on the determination of the application at hand, we propose to give a brief outline of the guidelines laid down by case law in determining the applications for review. One, an error apparent on the face of record must be one that is obvious by the naked eye and not something which can be established by a long-drawn process of reasoning on points which there may conceivably be two opinions. See: African Marble Company Limited (AMC) v. Tanzania Saruji Corporation (TSC) [2005] TZCA 87. Two, review is not an avenue to invite the Court to consider any evidence afresh. See: Abel Mwamwezi v. Republic [2013] TZCA 180. The Court stressed the point in Constantine Victor John v. Muhimbili National Hospital [2021] TZCA 77, where it stated: "Grounds that requires the court to re-assess the evidence are generaiiy not grounds for review, unless they depict an obvious or patent error "

Three, matters which were fully dealt with and decided upon on appeal, the fact that one of the parties is dissatisfied with the outcome is no ground of review at all. See: Issa Hassan Uki v. The Republic [2018] TZCA 361. Four, a mere disagreement with the view of the judgment cannot be the ground for invoking review as long as the point is already dealt with and answered. The parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. See: Kamlesh Varma v. Mayawati and Others, Review Application No. 453 of 2013, EA. We shall now proceed to determine the grounds of review. The instant application was made under rule 66 (1) (a) and 66 (2) which provides: "66. (1) The Court may review its judgment or order, but no appiication for review shaii 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 ofjustice; (2) An application for review shall, subject to necessary modifications, be instituted in the same mode as a revision . 8

Starting with the issue of manifest error on the face of record, Ms. Kibuga conceded that there was no error apparent on the face of record. The issue of EMS receipt was determined by the Court and it came to the conclusion that it was not made available in the record of appeal. Hence, there was no proof that notice of appeal and letter requesting appeal documents were served to the respondent. Therefore, the appeal was hopelessly time barred. The instant application is an attempt to have the Court re-consider the same matter, which is substantially an appeal in disguise which is not allowed by law. Regarding the ground of discovery of new evidence; first there was no such discovery of new evidence and more so, it is not a ground of review under rule 66 of the Rules. Hence, we outrightly dismiss it. Regarding the ground that, a party was wrongly deprived of an opportunity to be heard, it is submitted that this was not a ground of review relied upon by the applicant in the notice of motion and the accompanying affidavit. It was an afterthought as Mr. Sanga correctly urged us not to consider it. We took Mr. Sanga's advice as this ground was not raised by the applicant in the notice of motion or in the affidavit in supporting the appiication. Further, even if we consider it, the applicant was not denied a right to be heard on the proof of service. He conceded

that, when the appeal was heard there was no proof of service of the notice of appeal and the letter requesting appeal documents from the Registrar. Therefore, this ground is also meritless and we dismissed it. Having dismissed all grounds of review, we are of the view that this application for review does not have merit and it is hereby dismissed. As it emanates from a labour dispute, we make no order as to costs. DATED at ARUSHA this 6thday of May, 2026. Ruling delivered this 7th day of May, 2026 via teleconferencing in the presence of Ms. Yusta Kibuga, learned counsel for the applicant and Mr. Ayoub Sanga, learned Senior State Attorney for the respondent and Mr. Nelson Novati, Court Clerk in person is hereby certified as a true copy P. S. FIKIRINI JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL 10