IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: MUNUO, J.A., MSOFFE, J.A. And KAJI, J.A.) CIVIL APPLICATION NO. 75 OF 2006 ELIGI EDWARD MASSAWE AND THREE OTHERS (On behalf of 104 others)..applicants VERSUS ATTORNEY GENERAL AND TWO OTHERS...RESPONDENTS (Application for Review from the Judgment of the Court of Appeal of Tanzania at Dar es Salaam) (Munuo, J.A, Msoffe, J.A., And Kaji, J.A.) dated the 30 th day of May, 2006 in Civil Appeal No. 86 of 2002 --------- RULING OF THE COURT 18 June & 4 September, 2008 MUNUO, J.A. In the Amended Notice of Motion, the applicants Eligi Edward Massawe; Michael Anthony Nkhoma; Almas Mohamed Muwinda; Omari Mfaume; For and on behalf of 104 Others, seek review of the decision of the Court on the 30 th May, 2006, in Civil Appeal No. 86 of 2002 on the ground that there is an error apparent on the face of the record as none of the decree holders were paid terminal
2 benefits on the 30 th April, 1997, 31 st May, 1997, 31 st July, 1997, as scheduled. Instead, terminal payments were made in June, October and December, 1997 and March, 1998. The applicants want the said dates corrected. They also prayed for costs of the application. Mr. Ntonge, learned advocate, represented the applicants. The co-respondents were represented by Mr. Malata, learned State Attorney. The application for review is supported by a joint affidavit deponed to by Michael Nkhoma, Almas Muwinda and Omary Mfaume. The deponents averred that they were retrenched on the 31 st March, 1997 when their ex-employer, Friendship Mill Ltd. was dissolved. The liabilities of the company were then vested in the Treasury Registrar vide Government Dissolution Order No. 82 published in Government Notice No. 119 of 21 st March, 1997. At paragraph 6 of the affidavit, the applicants stated that they were paid their terminal benefits from June, October, December, 1997 and March, 1998, as shown on a new document they prepared, marked A to the Notice of Motion. At paragraph 7, the applicants deponed that the terminal benefits were delayed so they were paid on different dates but not on the 30 th April, 1997; 31 st May, 1997 and the 31 st July, 1997 as indicated in the judgment in Civil Appeal No. 86 of 2002. Hence, the applicants filed the review to enable the Court to correct that dates of payment of terminal benefits to the applicants after retrenchment. Mr. Ntonge, learned advocate for the applicants, submitted that although the dates for paying terminal benefits had been fixed, implementation was delayed, so the actual dates of payment should also be reflected in the judgment of the Court in Civil Appeal No. 86 of 2002. He contended that the 1 st group of employees was paid on the 26.6.1997 so corrections should be effected under the Slip Rule. He thence prayed that the correct dates be inserted in the judgment as follows: 1st Group: date of payment 26.6.1997
3 2nd Group: date of payment 03.10.1997 3rd Group: date of payment 11.12.1997 4th Group: date of payment 18.3.1997 He prayed that the judgment be corrected accordingly. Resisting the application, Mr. Malata, learned State Attorney, maintained that the dates of payment reflected in the judgment in Civil Appeal No. 86 of 2002 are accurate and should not be interfered with. Observing that the new document created by the applicants is inaccurate and not authentic for lack of a rubber stamp and identity of the office which issued it, the learned State Attorney argued that as the said document was not admitted or produced at the trial or appeal, it is too late in the day to insert it in the record of appeal now. The person who drew the new document is unidentified so we should not entertain it after the case has been determined. The purported list of payment shows that some employees were paid from the 16 th to 19 th June, 1997 well before the 26 th June, 1997 the date the applicants claimed was the commencement of the payment of terminal benefits. Others were paid as early as the 24 th May, 1997, as shown on the list the applicants recorded, Mr. Malata further observed, which indicates that the purported new document is also inaccurate. There is no ground for invoking the Slip Rule under Rule 40 of the Court Rules, 1979, or reviewing the judgment, Mr. Malata urged. For lack of merit, the learned State Attorney prayed that the application be dismissed. In reply, Mr. Ntonge, learned advocate for the applicants, conceded that the applicants drew the schedule of payment to show the correct dates of payments. He conceded that the matter was settled out of court except for the claim of subsistence allowance, the subject of Civil Appeal No. 86 of 2002. Nonetheless, Mr. Ntonge prayed that the dates for payment be corrected under the Slip Rule in the interests of justice. The issue before us is whether there is an error to be corrected under the Slip Rule or by way of review.
4 The applicants compiled the new document, allegedly showing correct dates of payment, which dates the applicants want reflected in the judgment of the Court in Civil Appeal No. 86 of 2002. The new document, counsel for the applicants admitted was neither produced at the trial nor in the appeal by way of additional evidence. Rule 40 of the Tanzania Court of Appeal Rules, 1979 Cap 141 R.E. 2002 provides for corrections of clerical and arithmetical errors by stating: 40 (1) A clerical or arithmetical mistake in any judgment of the Court or any error arising in it from an accidental slip or omission may at any time, whether before or after the judgment has been embodied, in an order, be corrected by the Court, either of its own motion or on the application of any interested person so as to give effect to what the intention of the Court was when the judgment was given. In our considered view, this is not a matter of an accidental slip or omission before or after the judgment was delivered because the applicants are seeking to put on record a new document they drew up after the delivery of the judgment. The said new document, the learned State Attorney pointed out, was not issued by a known office, it is neither signed nor rubber stamped to identify the author thereof. Furthermore, although the applicants claim payments commenced on the 26 th June, 1997, some entries on the new document show that some employees were paid terminal benefits on the 24 th May, 1997, and from the 16 th to 19 th June, 1997; all before the 26 th June, 1997. We, therefore, find merit in the learned State Attorney s contention that the purported new document is flawed with errors so it is unsafe to accept or rely on it. The payees on the new document did not sign for their payments which renders the material document weightless. We are satisfied, furthermore, that there are no clerical or mathematical errors to cause us to invoke Rule 40 (1) of the Tanzania Court of Appeal Rules, 1979 to correct the judgment of the Court in Civil Appeal No. 86 of 2002.
5 With regard to review, we wish to refer to the decision of the Court in the case of Chandrakant Joshubhai Patel versus Republic, Criminal Application No. 8 of 2002 (unreported), a review from Criminal Appeal No. 13 of 1998 (CA) (unreported) in which the Court in reference to its decision in the case of Transport Equipment Ltd. versus Devram P. Valambhia, Civil Application No. 18 of 1993 (unreported) stated: the court had the inherent jurisdiction to review its decisions and that it will do so in any of the following circumstances: where there is a manifest error on the face of the record which resulted in miscarriage of justice, where the decision was obtained by fraud; or where a party was wrongly deprived of the opportunity to be heard In Chandrakant Patel s case, the Court reaffirmed its holding in another case, Tanzania Transcontinental Co. Ltd. versus Design Partnership Ltd. Civil Application No. 62 of 1996 (CA) (unreported), in which the Court held that the grounds for review are not exhaustive. In this case, we find no manifest error on the face of the record, but rather, the applicants want to re-open the case which had been finally determined in Civil Appeal No. 86 of 2002. Re-opening the case at this stage would make litigation endless. We wish to refer to yet another case, that is, Felix Bwogi versus Registrar of Buildings, Civil Application No. 26 of 1989 (unreported) wherein the Court was asked to correct a judgment based on a wrong document in the record of appeal. The Court allowed the application under Rule 40 of the Tanzania Court of Appeal Rules, 1979, Cap 141 R.E. 2002 and observed that the rectification amounted to a review of the Courts decision. Here, there is no case of the Court considering a wrong document. This is a case of the applicants wanting to introduce a new document which is not on record after the determination of the case. The new document, we observed earlier on, was not signed by the purported payees, it is unsigned and not rubber stamped so its authenticity is in question which in
6 turn renders it valueless. Under the circumstances we find no merit in the review. In the result the application is lacking in merit, we accordingly dismiss the application. Either party to bear their costs. DATED at DAR ES SALAAM this 2 nd day of September, 2008. E. N. MUNUO JUSTICE OF APPEAL J. H. MSOFFE JUSTICE OF APPEAL S. N. KAJI JUSTICE OF APPEAL I certify that this is a true copy of the original. (S. S. MWANGESI) Ag. SENIOR DEPUTY REGISTRAR COURT OF APPEAL