Tanznaia Portland Cement Co. vs Minister for Labour and Others (Misc. Civil Case No. 16 of 1996) [1999] TZHC 160 (17 June 1999)

H1c THE HIGH COURT OF TAJ.'tZA 1 -.IA - DAR ES Sfu..AAi.•, DISTRICT REGISTRY AT DAR ES SALM. 1 ·, nrsc. CIVIL CASE 1'().16 OF 1996 TAJ: .. ZA1•IA FORTLAhD CEiLEi"T CO. • • • • • • • • • • APf-LICAlT VERSUS 1•1ItIs'l'ER FOR LABOUR I RESF01'"DEhT ATTOR111EY GID!ERAL f" 0 •• • • • • 0 0 • • •••• FIUS SA1'>GALI & OTHERS •• AFI·LICA 1 11TS/!J.-.TERESTED PARTIES R U L I l G BUBESHI, J: This is au application for review of the Ruling made by this court on 24/9/1998. The applicants, through their advocate 1v1r. Rutabingwa, are asking this court to review its Ruling so as to direct the Respondents to pay the requisite salaries and dues up to the tie the option to terminate the applicants was exercised. Secondly, they want this court to direct on the manner the investigation ordered are to be carried out in respect of Annexture 'C' and 'D' to the aPPlicants affidavit filed on 30th July,1998. In short the aPPlicants are· seeking the courts directions on those two issues. Appearing for the Respondents Comp.any. Dr. Mapunda, has strongly opposed the application. His opposition is two fold; first that there is no application for review properly filed. He has contended that the application filed is a mere memorandum and hence contrary to the provisions outlined in O XLII, Rule 2 of the CPC. He · argued that the application should have been made by the usual chamber summons supported by an affidavit. The case of NBC v CQSMAS ~. MUKOJI 1986 TLR 127 at 129 was cited in support. Dr. 1 • 1 apun:ia's view was that such an irregularity was fatal to the application. Sec?ndly, Dr. 1vJaPunda stated that, no adequate grouncls have been set up to warrant a review, in terws of Order XLII Rule l{b). Again several authorities have been cited, and, in particular, the case of •.••• /2

j 2 FAULO vs WILSON.CHUhA (1989), TLR 130. rn sum Dr. i'•1apund.a subn1i tted that the application was improperly fied and there were r sufficient grounds in support thereto. He alo stated that as this matter was now before the Court of APPeal, such pending matters; claims will be determined at that forum. In response, I'lr. Rutabingwa fon the APPlicants countered the Respondents argullients. applications for review are governed Order XLII which Provide: He stated that by Rule 3 of 3 "the provisions as to the form of preffering appeals shall aPPlY mutatis mutandis to aPPlications for review" 1V1r. Rutabingwa was in effect saying that his application as filed was proper. He further submitted there are adequate grounds to warrant a review, ·in that,the court has powers, in terms of Rule 1(1) (b) of Order XLII, to review its non decision, inter alia for any other sufficient reason. And since this court omitted to direct whether the employees could claim their dues, for the period, where the option is not exercised inTinediatelY. And secondly the omission to direct on the mode of carrying out investigation, in respect of documents 'C' and 'D' attached to the appli,oants affidavit; these two grounds were sufficient reasons for lodging the application for review. I have had tirne to cot1Sider the arguments raised by counsel. The test here is whether the conditions set out under Order 42 Rul 1(1) have been met. To case of reference I reproduce the relevant portions of the said law. It reads: 1 (1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred ••• /3

'f I ·f 3 . (b) by a _decree or order from which no appeal is allowed and who, from the discovery of new and impo important matter or evidence which, after the exercise of due delegence, was not within his knowledge or eould not be produced by hir.1 at the decree was passed or order made, or on account of some mistake or error apparent on the face of the r record, or for any other ufficient reason, descries to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the court which Passed the decree or made the order" Bearing in mind those provisions ot law, can we say that the applieant$ review application is wthin those legal provisions cited above? This court ruled on 4/9/98 that the respondents, had an option to pay the applicants terminal benefits, in aecodance with Section 40 A (5) of the Security of Employment Act, as amended by Act l ot 1975. The aPPlieants concern is over the period 'between Jaruary 1992 and January 1998 when they were terminated and when the terminal benefits were aetually paid. If this eourt is to indicate the poaition regarding that period does it amount to a review of its Ruling on an:1 sufficient cause as contended by Nr. Rutabingwa? I think yes. And again this court finds no fault by the way the application for review has been filed in court. On those grounds the application as filed is properly before this court. There is however o important aspect of this case which should r~t be over looked. The respondents had notified this court that they had intended to appeal against the Ruling of this eourt which was delivered on 9/10/97. That decision had decreed that the erriployees be re engaged.. Now with that in mind can this court at this juncture proceed to deal with the ~eview as filed? Even the law - Order 42 Rule (l)(a) ..... /4 )

.. ,.. 4 ·-·· -- _ ... ' ' is not, on the employee• ,Side, As it sf!- that where an appeai has been preferr€d; w.. reyiew •annot take Pl_ace.- In the premises ani for the reasons explained above, the. applicatj..on for rev al'.lPc. therefor.e be enterained •. Delivered Nassoro for Na.punda/ Respondent Eu3tace for Applicants ',f;, .. i) /\ -/l ~ /.- J, {,,.n I ,· , .J ',J' '·-1 ··- •-1._J,,.,J.~-;.t'.!''-" A•, G • · :BUBESHI . l\j