Mathias Rweyemamu vs General Manager (KCU) Limited (Civil Application No. 3 of 2014) [2017] TZCA 1148 (5 December 2017)

, !!. ·;1:? IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA CIVIL APPLICATION NO. 3 OF 2014 ______ ,c=-O.:::..R::.a::AM=-= MUSSA,.J.A .. -M-UGASHA,·J:--A-:-Ai@-"MWAM BEGELE, J.A.) MATHIAS RWEYEMAMU ........................................................ APPLICANT VERSUS 6,ENERAL MANAGER (KCU) LIMITED ................................. RESPONDENT (Application for Review of the decision of the Court Appeal of Tanzania at Bukoba) (Kileo, Oriyo and Juma, JJA.) dated the 17 th day of April, 2014 in Civil Appeal No. 55 of 2008 RULING OF THE COURT 27 th November & 6 th December, 2017 MWAMBEGELE, J.A.: By a Notice of Motion taken out under rules 66 (1) (a), (b), (c), (2) and 48 (1) of the Tanzania Court of Appeal Rules, 2009 (hereinafter referred to as the Rules), the Court is moved to review its decision of 17.04.2014 in Civil Appeal No. 55 of 2014. The Notice of Motion is supported by an affidavit duly sworn by Mr. Mathias Rweyemamu; the applicant. It is resisted by an affidavit in reply duly affirmed by Mr. 1

Daimu Halfani; an advocate of the High Court and courts subordinate thereto save for the Primary Court who represented the respondent in this-Eourt-in- the-i-rnpugned-decision,~

• • • ---~- -- At the hearing of the application before us on 27.11.2017, the applicant appeared in person, unrepresented. The respondent had the services of Mr. Mpale Mpoki, learned counsel. Both parties had earlier on filed written submissions for and against the application as, respectively, dictated by sub-rules (1) and (8) of rule 106 of the Rules, which they sought to adopt alongside their respective affidavit and affidavit in reply as part of their oral arguments. To have a better understanding of the present application, we find it apt to narrate, albeit briefly, the background facts leading to the 'present application for review as gathered from the documents accompanying the motion. They go thus: On 01.06.1998, the respondent offered to employ the applicant as her legal officer on six months' probation period. After expiry of the probation period, the applicant's appointment was not confirmed and nothing was communicated to him though he remained in employment. However, 2

Ii on 27.10.1999, the respondent terminated the applicant's employment. The termination irritated the applicant. He thus filed Civil Case No. 3 of 2000 in the District Court claiming for, inter alia, payment in lieu of annual leave, unpaid subsistence and repatriation allowances and one month's salary in lieu of notice. That suit was decided in favour of the applicant on 28.04.2000 as the respondent did not enter appearance to defend it. The District Court awarded the applicant the sum of Tshs. 9,469,673/=. More than four years later; on 02.08.2004 to be exact, the applicant lodged another suit in the High Court claiming for, inter alia, Tshs. 300,000,000/= and Tshs. 156,525,320/= as general and specific damages respectively. That suit was dismissed with costs by the High Court [Luanda, J. (as he then was)] on a preliminary objection. Aggrieved, the applicant unsuccessfully appealed to this Court. The Court held that the suit the applicant lodged in the High Court was bad in law for failure to comply with the provisions of Order II rule 2 (3) of the Civil Procedure Code, Cap. 33 of the Revised Edition, 2002 (hereinafter referred to as the CPC). Undeterred, the applicant lodged the present application for review urging the· Court to review its 3

judgment dated 08.04.2014; pronounced to the parties on 17.04.2014, on the grounds that: ---~--

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a) There is a manifest error on the face of the record resulting in the miscarriage o justice; b) The judgment of 17.04.2014 is a nullity; and c) The applicant was wrongly deprived of an opportunity to be heard. We wish to point out two things at the outset before delving into the merits of the application. First, that the respondent had filed a three-point preliminary objection to challenge the competence of the application but, before commencement of the hearing, for what the learned counsel for the respondent termed as expeditious disposition of the matter, he sought to withdraw the same. As the applicant had no objection to the respondent's prayer to have the preliminary objection withdrawn, we were constrained to grant the prayer and, accordingly, marked the preliminary objection as withdrawn. Secondly, that the applicant, amidst hearing, sought to abandon the ground of complaint regarding his being deprived of an opportunity to be heard. The 4 ----------~

applicant having withdrawn his ground of complaint which fell under sub-rule 1 (b), he remained with grounds falling under sub-rules (a) and (c) of rule 66 of t_tt__RJ.Jl_es.,.xesectively; -that-is~- thaf the-ipugned ------- decision was based on a manifest error on the face of the record resulting in the miscarriage of justice and that the court's decision is a nullity. In this ruling we will thus focus on the above two grounds. That is; whether our impugned decision was based on a manifest error on the face of the record resulting in the miscarriage of justice and whether that decision is a nullity. On the first ground of complaint the applicant argues that the judgment sought to be reviewed is marred with a manifest error on the face of the record resulting in the miscarriage of justice because the case instituted in the High Court (which gave rise to Civil Appeal No. 55 of 2008 whose decision is sought to be reviewed) did not require leave of the High Court in terms of the provisions of Order II rule 2 (3) of the CPC. 5

The applicant, in a written submission running about eleven pages, has submitted on the point and reinforced his proposition with -~--,M-u-Ha-orrthe-Code of Civil Procedure of 1908 (13 th Edition - page 5) citing the cases of Krishna v. Ramachandra (1956) A.B 268, Venkata Chala v. Ramachandra (1961) AM 423 and Payana v. Pana Lana (1914) 41LA, 142,148, 26C 228. The applicant has also relied on the provisions of the Employment Ordinance, Cap. 366 and the Security of Employment Act, 1964 as well as case law in this jurisdiction. The Tanzanian cases relied upon are Shabani Msengesi v. National Milling Corporation, Civil Appeal No. 44 of 1994 (HC unreported), KLM Royal Dutch Airlines v. Jose Xavier Ferreira [1994] TLR 230 and Jumuiya ya Wafanyakazi Tanzania v. Kiwanda cha Uchapishaji cha Taifa [1988] TLR 146, among others. On the other hand, the respondent has strenuously resisted the application stating that there is no error, manifest or otherwise, in the record before the Court. The respondent submits that reading through the Notice of Motion and written submissions, the applicant's complaint is that the impugned judgment is erroneous, which is not a ground for review. Nyamogo and Nyamogo Advocates v. Kogo [2001] 1 EA 6

.. - 173; the decision of the Court of Appeal of Kenya, Ngurangwa and others v. Registrar of the Industrial Court of Tanzania and ----iothe·rs-er999rTEA245, the decision of the High Court and Blueline Enterprises Tanzania Limited v. East African Development Bank, Civil Application No. 21 of 2012 (unreported), are cited to distinguish between a mere erroneous decision and an error apparent on the face of the record. The respondent submits that the Court evaluated the evidence and the law and dismissed the appeal. The learned counsel for the respondent states that there could be errors on the impugned judgment but that the same, if any, are not apparent on the face of the record to warrant a revision. With the above articulation of the cases for the applicant and respondent, we should now be in a position to confront the issue in the application which is whether or not the applicant has advanced enough grounds to warrant a review of our decision. We find it apt to state here that this Court has power to review its own decisions. This power is, currently, bestowed upon it by the provisions of subsection ( 4) of section 4 of the Appellate Jurisdiction 7

... Act, Cap. 141 of the Revised Edition, 2002 (hereinafter referred to as the AJA). The subsection was introduced in the AJA by the Written Laws (Miscellaneous Amendments) Act, 2016 - Act No. 3 of 2016 which came into force on 08.07.2016; the date of its publication. Prior to that, the Court's power to review its decisions was derived from case law [commencing with Felix Bwogi v. Registrar of Buildings, Civil Application No. 26 of 1989 (unreported)] and rule 66 of the Rules under which the present application has been made. Reverting to the determination of the matter, the applicant complains in the first ground that our decision was based on a manifest error on the face of the record resulting in the miscarriage of justice. What amounts to "a manifest error on the face of the record" has been a subject of discussion in a number of cases. Of particular significance in this jurisdiction is the case of Chandrakant Joshubhai Patel v. R. [2004] TLR 218. In that case, the Court, having revisited at some considerable length the law relating to the subject in India, set out principles which have since uninterruptedly been followed in numerous decisions of the Court, some of which have been incorporated in rule 66 of the Rules. In Chandrakant, what amounts to "a manifest error on 8

the face of the record" was also discussed and adopted at page 225 the following reasoning in MULLA 14 th Edition at pages 2335-6 (omitting cases cited therein): ''.An error apparent on the face of the record must be such as can be seen by one who runs 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 opinions . .. A mere error of law is not a ground for review under this rule. That a decision is erroneous in law is no ground for ordering review... It can be said of an error that is apparent on the face of the record when it is obvious and self- evident and does not require an elaborate argument to be established ... " [Emphasis added]. 9

The Court in Chandrakant was satisfied that for purposes of the discussion, the expressions "manifest" and "apparent" were

synonymous and treated them as such. We subscribe to the- reason'ing~- and conclusion on what amounts to a manifest error on the face of the record as articulated in Chandrakant and we will be guided by that decision to determine this complaint in the present application. The errors complained of by the applicant which he submits are manifest on the face of the record, as can be gleaned from the record, are; first that the Court erred in treating the case filed in the District Court as "a suit" in terms of Order II rule 2 (3) of the CPC. Secondly, that the Court erred in holding that the causes of action in the suit in the District Court and the one in the High Court were not different. Thirdly, that the Court erred in holding that the suit filed in the High Court required leave. We have dispassionately read the impugned decision in relation to the applicant's complaints. Having so done, we are of the considered view that the applicant's complaints are wanting in merit. We say so because in the impugned decision, the Court addressed itself to the 10

... grounds of complaint above and made a decision thereon. We shall demonstrate. As for the provisions of Order II rule 2 (3) of the CPC, the Court discussed and pages 181 - 183 of the record and concluded at page 189 that: " ... the object of Order II rule 2 (3) of the CPC is to prevent plaintiffs from overwhelming defendants with multiplicity of suits arising from common cause of action. We hasten to reiterate that these provisions also give room to the plaintiff who could not who could not pursue certain reliefs arising from the same cause of action in their first suit, to seek leave of the court before they can file fresh suits to pursued reliefs they could not have claimed in the first suit. It is during the application for leave when the second court is seized with an opportunity to verify if the plaintiff concerned 11

... has advanced any good reason to Justify the filing of the second suit. " Regarding the issue whether the causes of action in the case filed in the District Court and the High Court were different, the Court discussed the issue at some considerable length from page 184 to page 188 of the record. The Court made reliance on the provisions of Order VII rule 1 of the CPC as well as case law - John M. Byombalirwa v. Agency Maritime Internationale (Tanzania) Ltd [1983] TLR 1 and Anthony Leonard Msanze & another v. Juliana Elias Msanze & 2 others, Civil Appeal No. 76 of 2012 (unreported) - and concluded at page 188 of the record as follows: "Although in his submissions the appellant has stoutly tried to persuade the Court that the two suits do not share a common cause of action, we not persuaded. In fact, in his own submissions the appellant stated that he first went to the Labour Officer to pray for the 12

reliefs. The Labour Officer then conveyed his claims to the district court by way of a letter. --1t · was· this letter --which-the-dist-riet-------eet1rt~- ·~- ~~-~~~- transformed into a plaint. The appellant is correct to observe that the reliefs he obtained in the district court through the avenue of a Labour Officer could not be pursued in other courts. This, in our opinion does not mean there was no commonality of cause of action between what was dealt with by the district court and later on by the High Court. What is clear to us is that the appellant was more concerned in getting more reliefs in the High Court that he had obtained from the district court. To that end, the appellant was obliged to seek the leave of the High Court before proceeding with a second suit based on the same cause of action as his first suit" 13

., . It is apparent from the foregoing excerpts that the Court discussed the point and made a decision thereon disagreeing with the applicant. The mere fact that the applicant is not nappy with-the-eenG!usion __ oLtbe Court would not amount to a ground of review. And even if the applicant

would prove that the decision was wrong, an erroneous decision is not a ground for review. As we stated in Blueline Enterprises Ltd v. East African Development Bank (supra), a court will not sit as a court of appeal from its own decisions, nor will it entertain applications for review on the ground that one of the parties in the case conceived himself to be aggrieved by the decision. It would be intolerable and most prejudicial to the public interest if cases once decided by the court could be re-opened and re-heard - see also Angella Amudo v. The Secretary General of the East African Community, Civil Application No. 4 of 2015; an unreported decision of the Appellate Division of the East African Court of Justice. In view of what we have stated above, we are of the firm view that the impugned decision has no manifest error whatsoever on the face of it. Without prejudice, we are of that view because it would require a long drawn process of learned argument to detect any error, 14

if any, in the impugned judgment. That is perhaps the reason why the ---appltca_lJ.Lhas burnt a lot of fuel submitting on the point in eleven pages to elaborate the purported error on the face o lhe-recor-Ef.-Li.kewis_e_J:he

respondent's counsel has spent about five pages of his eight-page reply submissions to provide an answer that there is no such error. As already stated above, a manifest error on the face of record must be one that is obvious and self-evident and not something that can be established by a long drawn process of learned arguments as happened in the instant case. The first ground therefore is without merit. It fails. With regard to the second ground falling under sub-rule 1 ( c) of rule 66, we think, flowing from the argument in respect of the first ground, the same cannot stand. The decision sought to be revised cannot be said to be a nullity on the grounds stated. For avoidance of doubt, there may be an error in the impugned judgment but that error cannot make it a nullity to justify a review. As was stated in Chandrakant (at page 224) and reiterated in unreported decisions of East African Development Bank v. Blueline Enterprises Tanzania Limited, Civil Application No. 47 of 2010 and Blueline 15

Enterprises Tanzania Limited v. East African Development Bank (supra); a case cited by the respondent: "It is, we think, apparent that there is a conflict of opinion as to what amounts to an error manifest on the face of the record and it is important to be clear of this lest disguised appeals pass off for applications for review' We say so for the well-known reason that no · judgment can attain perfection but the most that courts aspire to is substantial justice. There will be errors of sorts here and there, inadequacies of this or that kind, and generally no, judgment can be, beyond criticism. Yet while an appeal may be attempted on the pretext of any error, not every error will justify a review. As held by the Supreme Court of India in Thungabhadra Industries Ltd v. State of Andhra Pradesh, [(1964) SC 1372] a 16

review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error'' [Emphasis added]. In sum, the applicant has miserably failed to establish that our decision is marred with a manifest error of the face of it to warrant a review. He has also failed to prove that the impugned decision is a nullity. What the applicant has succeeded to show is that he was dissatisfied with that decision which is not a ground to justify a review. The grounds for the applicant's discontent over the impugned decision are perfect ones in an appeal. They are, however, for the reasons stated, imperfect for an application for review. The applicant should be aware that the Court invokes its powers to review its decisions sparingly

• see: Tanzania Transcontinental Co. Ltd. v. Design Partnership Ltd., Civil Application No. 6 of 1996 (unreported). He should be contented with the decision of the final court of the land. It is in the interest of the public that there should an end to litigation to avail litigants to engage themselves in other productive endeavours. 17

In the end of it all, we find the application seriously wanting in merit and dismiss it in its entirety. As this application stems from a labour-related matter, we order that each party shall bear its own costs in this application. Order accordingly. DATED at BUKOBA this 5 th day of December, 2017. K. M. MUSSA JUSTICE OF APPEAL S. E. A. MUGASHA JUSTICE OF APPEAL J. C. M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. P.~IKYA SENIOR DEPUTY REGISTRAR COURT OF APPEAL 18