| dc.description | COSTANTINE VICTOR JOHN VS. MUHIMBILI NATIONAL HOSPITAL IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MKUYE. J.A. KENTE. J.A. And KIHWELO. J.A.) CIVIL APPLICATION NO. 188/01 OF 2021
[Arising from the Decision of the Court of Appeal of Tanzania at Dar es Salaam] (Mbarouk J.A, Mwarija J.A and Mziray J. A dated 25th day of January, 2016
in Civil Application No. 44 of 2013
Civil Law and Practice- Review of Courts Judgments- Grounds for the Court to review her own judgment
Civil Law and Practise- Review of Courts Judgments- Whether you can raise a new grounds not raised before during review.
Labor Law- Termination of employment- Termination basing on absence from work without permission or without acceptable reason have to be more than five working days
This is an application for review of the Ruling of this Court which revised and set aside the decisions of both Labour Court and the Commission for Mediation and Arbitration (the CMA) and found that the applicant's termination was based on justifiable reasons. The application is brought under Rule 66 (1) (a) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the applicant has fronted four grounds as follows; That the decision was based on a manifest error on the face o f the record because the court failed to consider that Exhibit D5 which contravened section 12 (c) o f the Muhimbiii National Hospital Act, No. 3 o f 2002 and regulation 10.4.3 and 10.6.b o f the Kanuni za Wafanyakazi, Hospitali ya Taifa ya Muhimbiii. (b) That the decision was based on a manifest error on the face of the record as the Court based on manifest error on the face of the record because of one, the courts failure to consider Exh. D5 which contravened section 12(c) of Muhimbili National Hospital Act, No. 3 of 2003 and rule 10.4.3 and 10.6.b of the Kanuni za Wafanyakazi, Hospital ya Taifa ya Muhimbili; two failure to consider that Exh. D5 did not qualify to be called the termination letter but an information for abscondment; three failure to consider that the unexplained seven days among them were weekend and public holidays; and four that the court did not consider that the applicant reported at work on 24/9/2009
Held;
The said grounds one, two and four are not grounds of review envisaged under Rule 66 (1) (a) of the Rules as they require the Court to re-asses the evidence.
The raised grounds do not depict an obvious or patent error which can be established without a long-drawn process of reasoning whereby there may be two opinions
That this is a new ground as it is not pegged under any provision of Rule 66(1) of the Rules.
We are of the considered view that the applicant's employment ought not to have been terminated since his absence from work without permission or without acceptable reason was not more than five working days and, therefore, in agreement with Mr. Mabula that had the Court been availed with this information, it would not have arrived at that conclusion.
Statutes Refereed;
Rule 66 of the Court of Appeal Rules
59 (1) (g) of the Evidence Act, [Cap 6 R.E. 2019],
section 12 (c) of the Muhimbili National Hospital Act
Cases Referred;
Roshan Meghee & Company Limited v. Commissioner General of Tanzania Revenue Authority [2017] T.L.R. 482
African Marble Company Limited (AMC) v. Tanzania Saruji Corporation TSC, Civil Application No. 132 of 2005 (unreported)
Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218).
Patrick Sanga v. Republic, Criminal Application No. 8 of 2011 (unreported)
Charles Barnabas v. Republic, Criminal Application No. 13 of 2009 ( unreported).
Abel Mwamwezi v. Republic, Criminal Application No. 1 of 2013 (unreported)
Sudy Mashana @ Kasala v. Republic, Criminal Application No. 2/09 of 2018 (unreported).
Karim Kiara v. Republic, Criminal Application No. 4 of 2007( unreported).
Japhet Msigwa v. Republic, Criminal Application No. 7 of 2011 ( unreported).
Eusebia Nyenzi v. Republic, Criminal Application No. 6 of 2013 ( unreported).
the applicant was represented by Mr. Josephat Mabula, learned advocate whereas the respondent had the services of Ms. Alice Mtulo, learned Senior State Attorney assisted by Ms. Debora Mcharo and Mr. Rashid Mohamed, both learned State Attorneys. | en_US |
