Attorney General & Another vs Said Balozi & Others (Civil Application No. 33 of 2019) [2025] TZCA 1162 (23 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM CIVIL APPLICATION NO. 33 OF 2019 ATTORNEY GENERAL............................................................ 1 st APPLICANT TREASURY REGISTRAR........................................................2 nd APPLICANT VERSUS SAID BALOZI.................................................................... 1 st RESPONDENT RAJABU 3 . TOFIKI............................................................ 2nd RESPONDENT MORRIS MJATA................................................................3 rd RESPONDENT A. NDEKILWA...................................................................4 th RESPONDENT SHAIBU BAKARI............................................................... 5 th RESPONDENT R. WARIOBA .................................................................... 6 th RESPONDENT RASHID T. SHUNDA.......................................................... 7 th RESPONDENT ADOLA CHALE.................................................................. 8 th RESPONDENT RASHIDI MTAMBUA..........................................................9 th RESPONDENT ZUHURA I. ISSA..............................................................10 th RESPONDENT RAHEL V. LIFA................................................................ 11 th RESPONDENT ELIZABETH MULILO........................................................ 12™ RESPONDENT PRUDENCE KIIZA........................................................... 13™ RESPONDENT ATHUMAN GENGE........................................................... 14™ RESPONDENT POSTAR MASTER CORPORATION..................................... 15™ RESPONDENT (Application from the Judgment and Decree of the High Court of Tanzania, at Dar es Salaam) (Mihavo, J.) dated the 23r d day of September, 2011 in Civil Appeal No. 2 of 2008 RULING 7th & 23rd October, 2025 MURUKE. J.A.: i The applicants lodged this application beseeching the Court to enlarge time within which the applicants can file application for revision of the decision of the High Court, in Civil Appeal No. 02 of 2008. Brief facts, leading to this application as can be gleaned from records manifests is that, the 1s t - 14th respondents, were employees of the Tanzania Posts corporation until 15th December, 1995, when they were retrenched. Aggrieved with the retrenchment dues, the respondents in 30th January, 1997, filed an employment cause No. 37 of 1997, against the 15th respondent before Kisutu Resident Magistrate Court at Kisutu, claiming among other reliefs, arrears of four months' salaries for each year of service based on December, 1995 salary, instead of June, 1995 salary and arrears of house allowance as from 1s t July, 1995 to December, 1995. The decision, was partly issued in favour of the said respondents, however, they appealed to the High Court, in Civil Appeal No. 2 of 2008. The High Court upon hearing the appeal, delivered the same in favour of the respondent. There followed an execution, in which some of the properties of Tanzania Posts Corporation were sold. As the result of that sell, the respondents obtained TZS. 927,722,880, far beyond what they were awarded by the trial and appellate court. Following 2 the event, the applicants intended to challenge the judgment of the High Court mainly on the ground of illegalities. When the matter was scheduled for hearing, the applicants were represented by Mr. Ayubu Sanga, Senior state attorney, assisted by Ms. Frida Mollel and Mr. Celestine Ngailo both state attorneys. Mr. Ambroce Nkwera, learned counsel, appeared for the 12th respondent, whereas Mr. Peter Nyandindi, learned counsel represented the 15th respondent. For the rest of the respondents, they were dully served through substituted service on Mwananchi Newspaper dated 19th September, 2025 at page 18. Thus, in terms of Rule 63 (2) of the Tanzania Court of Appeal Rules, (the Rules) the application was heard in their absence. In support of the application, Mr. Sanga submitted that the intended application is tenable, since both the applicants were not made a party on both the original case and on appeal before the High Court, which proceedings are tainted with series of irregularities among others, applicants were not made parties to the dispute. Therefore, the only remedy they have is to file an application for Revision, but there are out of time, thus filing present application for extension of time. On the alleged illegalities Mr. Sanga submitted that; One, the trial Court, Kisutu Resident Magistrate Court lacked jurisdiction to determine the dispute arising from employment ordinance as amended. That in terms of Sections 130 - 134 of the Ordinance, once there is a dispute the labour officer was required to prepare a report and submit the same to the court, and the proper court was the District Court and not Resident Magistrate Court of Kisutu. He went on submitting that, Section 132 of the Ordinance insist that it is labour officer, who had the right to initiate the dispute and not labour commissioner. Mr. Sanga insisted that, since the Kisutu Resident Magistrate Court had no jurisdiction and the one who initiated the proceeding was not labour officer, then the proceedings are nullity. Two, the appeal before the High Court was lodged out of time. The decision sought to be challenged was delivered on 10th July, 2007. The appeal was filed before the High Court on 03r d January, 2008 being about 124 days delay, contrary to item 1 of part II of the law of limitation Act which requires appeal to the High Court to be filed within ninety (90) days. Three, that there was change of parties as reflected at page 33 of the records. The respondent being Tanzania Postal Corporations Ltd, while the judgment at page 44, she was referred as Postal master corporation and there was no any amendment order. The learned Senior State Attorney, emphasized that, parties to the proceedings, have to remain the same unless there is an order for amendment, citing the case of Salim Amour Diwani v. The Vice Chancellor Nelson Mandela African Institution of Science & Technology & Another (Civil Application No. 116 of 2021) [2023] TZCA 33. He added that, the Court in the case of Change Tanzania Limited v. Registrar Business Registration & Licencing Agency (Civil Appeal No. 3 of 2021) [2023] TZCA 17598, insisted that the judgment and decree in a non-existing party is a nullity. Four, failure to join necessary party and right to be heard. It was submitted that the dispute was filed on 11th July, 1997, whereas the amended report was filed on 22n d August, 1997, when Tanzania Postal cooperation was under receivership of PSRC, hence it was a requirement to join the Attorney General and the Treasury Registrar. Failure to join the applicants was fatal and against the principle of a right to be heard, citing the cases of Attorney General v. Swiss Singapore Overseas Interprises PTE Ltd & Another (Civil Application No. 110/ 01 of 2019) [2023] TZCA 17355, Attorney General & Another v. Dhirajilal Walji Ladwa & Others (Civil Application No. 640/ 16 of 2023) [2023] TZCA 17828, M. B. Business Limited v. Amos David Kasanda & Others (Civil Application No. 429/ 17 of 2019) [2023] TZCA 17405, Tanzania Railways Corporation (TRC) v. Gbp T. Ltd (Civil Appeal 218 of 2020) [2021] TZCA 198. Five, the award of interest, in both lower courts judgment decree interest was granted contrary to the law. At the trial court 31% whereas at the appellate court 20% interests on the decretal sum. That, this being the labour dispute in terms of Civil Procedure code the limit for interest on decretal sum is 7 - 12%, citing the case of Ashraf Akber Khan v. Ravji Govind Varsan (Civil Appeal No. 5 of 2017) [2019] Six, the dispute tried as representative suit while there was no leave to file representative suit at level of appeal. On the issue of promptness, Mr. Sanga insisted that the applicants acted promptly in pursuing the application. That, from 2020 when they became aware of the existence of the matter to 2024 when they filed present application making reference to the cases of National Housing Corporation & Others v. Jin Lang Li (Civil Application No. 432 of 2017) [2021] TZCA 68, Philemon Mang'ehe t/a Bukine Raders v. Gesso Herbon Bajuta (Misc. Civil Application No. 374/ 02 of 2022) [2023] TZCA 17672, and Hassan Ramadhani v. Republic (Criminal Appeal No. 160 of 2018) [2022] TZCA 169. In winding up, Mr. Sanga and Mr. Ngailo both insisted that there are serious illegalities which are apparent on face of records, hence prayed for the application to be granted. In response, Mr. Ambroce, for the 12th respondent and Mr. Nyandindi Counsel for the 15th respondent, both conceded to the submission made by Senior State Attorneys, as the stated illegalities are on face of records. They also prayed for the application be granted so that the matter can be heard on revision. Mr. Nkwera prayed for each party to bear own costs, a prayer that was welcomed by Mr. Sanga in rejoinder. Having heard both parties submission, it is worth noting that this is uncontested application for extension of time to file Revision, thus the issue for determination is whether the applicant has adduced sufficient cause to warrant the Court to exercise its discretion to extend time. Pursuant to Rule 10 of the Tanzania Court of Appeal of Appeal Rules, 2009 (the Rules), for an application of extension of time to be granted, the applicant is required to show good cause for the delay. The said Rule provides that: "The Court upon good cause shown, extend the time limited by these Rules or by any decision o f the High Court or tribunal\ for the doing o f any act authorized or required by these Rules, whether before or after the doing o f the act; and any reference in these Rules to any such time shall be construed as reference to that time as so extended . " The applicant has raised seriously issue of jurisdiction of the trial court in three folds; One, the trial court had no jurisdiction to try the dispute in that, the employment dispute was supposed to be tried by the District Court and not the Resident Magistrate Court of Kisutu. Two, the dispute was supposed to be referred by the Labour officer not Labour Commissioner. Three, the appeal at the High Court was filled out of time, thus the first appellate court lacked jurisdiction to hear and determine the same. It is worth insisting that, in any court of law, jurisdiction is the first and fore most to be ascertained, before hearing of any dispute. Jurisdiction is conferred by statutes and cannot be ascertained or conferred by agreement of the parties to the dispute. Failure to observe limits set by jurisdiction, is a serious anomaly, which render the decision reached at, to be declared a nullity on appeal. On appeal to the High Court, the 1s t to 14th respondent filed appeal after period of 124 days instead of 90 days as judgment sought to be challenged was delivered on 10th July, 2007, whereas the appeal was filed on 3r d January, 2009. High Court determined the appeal that was filed out of time. In essence, High Court lacked jurisdiction to determine the appeal. Fourth, according to paragraph 11 (iv) of affidavit in support of the application, 15th respondent was just made a part instead of Tanzania Posts Corporations and deliver the judgment against her, without there being an order to amend the pleadings and given right to be heard is an irregularity that need to be corrected by the Court. Fifth, at the trial court, the dispute was tried as representative suit on a leave granted to Shaibu Bakari, however the first respondent, Saidi Balozi preceded with filing of an appeal at the High Court, without leave of the Court, this is an irregularity to the proceedings. Sixth, The Tanzania Posts Corporation was under receivership of the Defunct Presidential Parastatal Sector Reform (PSRC) since 22n d August, 1997. Hence, receiver who is now the second applicant, was to be made a party of which the first applicant, the Attorney General, becomes automatic a necessary party. Thus, failure to join the applicants is an irregularity to the proceedings. Seventh, the properties that were subject for execution were Government Properties that were sold to the other people without the representative of the Government, Treasurer Registrar and the Attorney General being heard. That itself, is against fundamental basic rights of being heard. The right to be heard is not only a cardinal principal of natural justice, but also a fundamental right, constitutionally guaranteed under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 as amended. For that reason, any decision arrived in contravention of it, will not be left to stand even if the same decision would be reached had the party been heard. There are several decisions of this Court only to mention a few: The Director of Public v. Sabini Inyasi Tesha & Another [1993] T.L.R. 237, National Housing Corporation v. Tanzania shoe Company Limited& Others [1995] T.L.R 251, Mbeya - Rukwa Auto Parts & Transport, v. Jeyes hi Mwakyoma [2003] T.L.R.251, Abbas Sherally & Another v. Abdul Sultan Haji Mohamed Fazalboy, Civil Application No. 33 of 2002. For instance, in the case of Abbas Sherally & Another V. Abdul Sultan Haji Mohamed Fazalboy (supra) the Court said: "the right o f a part to be heard before adverse action or decision. Is taken against such a party has been stated and emphasized. By the court in numerous decision. That right is so basic that a Decision which is arrived at in violation o f it will be nullified, even if the same decision would have been reached had the part been heard, because the violation is considered to be a bread o f naturaljustice." As s clearly seen, thought the proceedings, applicants were not given right to be heard, while they have been affected by the decision of the trial court and the High Court, thus, intend to file revision to cure such illegality. It is a settled law that, illegality of the decision sought to be challenged constitutes sufficient reason for extension of time even, where the applicant has failed to account for the days of delay. There is a plethora of authorities ii in this regard [See: TANESCO v. Mafungo Leonard Majura and 15 Others, [2017] TZCA 1200 TANZLII and VIP Engineering and Marketing Limted and Two Others v. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006] (both unreported). In the case of TANESCO (supra) the Court observed as follows: "Notwithstanding the fact that, the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that there is a complaint o f illegality in the decision intended to be impugned... suffice to move the Court to grant extension o f time so that the alleged illegality can be addressed by the court . " I understand, that in an application for extension of time, applicant has to show promptness. In the matter at hand, the applicant became aware of the existence of the dispute in year 2020, from Tanzania Postal Corporation vide letter with reference No. PMG/ DF.3462/ 2020. They promptly took action by filling Misc. Civil Application No. 189 of 2020. While Misc. Application No. 189 of 2020, was pending, applicants made several internal meetings, with the officers of Tanzania Postal Corporation and upon 12 receiving necessary information and details of what happened, they finally withdrew the application on the date that was set for hearing on 16th May, 2022. It was then followed, with logging an application for extension of time to file Revision on 24th June, 2022, which was later withdrawn with leave to refile on 7th November, 2023. After withdrawal, applicant struggled to get necessary documents from the trial Court, upon receipt of the same, then, filed, present application on 26th January, 2024. From the series of events, explained from paragraph 13 - 25 of affidavit in support of the application, is a proof that applicants acted promptly in the circumstances of this case, in which they were not parties to the case at the trial court and the High Court. Perusal of Notice of Motion, affidavit in support thereof and submission made by Mr. Sanga Senior State Attorney, it is clear that there is serious issue of illegality of the proceedings of the trial court and the High Court as I have itemized from number one to seven above. Same, can be corrected on revision as the applicants were not parties to the case at the two lower court. In the circumstances, I allow the applicants application for extension of time to file Revision. The applicants are granted 60 days, from Monday, 13 20th October, 2025, within which to file Revision. In the circumstances of this case, each party to bear own costs. DATED at DAR ES SALAAM this 15th day of October, 2025. The Ruling delivered this 23rd day of October, 2025 in the presence of Frida P. Mollel, learned State Attorney for the 1s t and 2n d applicants and Mr. Ambroce Menance Nkwera, learned counsel for the 12th respondent, Mr. Peter Nyandindi, learned counsel for the 15th respondent and in the absence of the 1s t - 11th , 13th and 14th Respondents and Mr. Nelson Novati, Court Clerk; is hereby certified as a true copy of the original. Z. G. MURUKE JUSTICE OF APPEAL