FORMER Senior Accounts Assistant with Tanzania Telecommunications Company Limited (TTCL) Justus Tihairwa has lost his bid to regain his job with the company.
This followed the decision by the Court of Appeal to “strike out” the appeal that Tihairwa, as the appellant, had lodged in attempt to challenge the judgment of the High Court on the matter.
Justices Stella Mugasha, Gerald Ndika and Mwanaisha Kwariko ruled in favour of the Chief Executive Officer with TTCL after finding the appeal filed on October 4, 2017 by the appellant as hopelessly time barred.
Before hearing the appeal, the justices wanted to satisfy themselves if the same was properly filed before them because the appellant’s letter requesting to be supplied with proceedings of the High Court for appeal purposes was not served on TTCL boss, as the respondent, as required by the law.
The appellant had told the court that he availed all the copies of the requisite documents to the respondent and he contended that the appeal was properly before the court.
He had added that the court should not be bogged down by technicalities but rather determine the appeal on merits. On their side, the counsel for the respondent confirmed that the letter was not supplied on them and urged the court to strike out the appeal on account of being incompetent.
In their ruling, the justices of the appeals court referred to section 90 (1) and (2) of the Tanzania Court of Appeal Rules, requiring the appellant to file the appeal within 60 days of the date when the notice of appeal was lodged.
The requirement, they said, could not be taken into consideration where an application for a copy of the proceedings in the High Court has been made within 30 days of the date of decision against which the appeal is desired and the time can be excluded in computing days of filing the appeal.
The justices noted that the appellant letter of March 13, 2017 seeking to be supplied with High Court records was not served on the respondent. In the end, they said, the appellant could not be allowed to rely on the exclusion of days he waited for the Registrar to supply him documents for appeal process.
Such omission to comply with mandatory dictates of the law, according to the justices, could not be glossed over as a mere technicality as viewed by the appellant because it has adverse impact on the time limit of filing the appeal since the appellant could not rely on the exception under Rule 90 (1) of the Rules.
“We say so because since the notice of appeal was filed on March 14, 2017, the appellant ought to have filed the appeal not later than May 13, 2017.
As the present appeal was filed on October 4, 2017, the appeal is hopelessly out of time and we are constrained to strike it out,” they declared.
The appellant was employed by the respondent as Post Officer II and he rose to the position of Senior Accounts Assistant.
Following restructuring of the Corporation, the appellant was recategorised as storekeeper and transferred from Dar es Salaam to Musoma on November 27, 2007.
This precipitated a wrangle between the parties, which culminated into the appellant’s termination from the employment on May 9, 2008 due to misconduct. The appellant challenged the termination before the Commission for Mediation and Arbitration (CMA).
The CMA ordered the appellant to be reinstated into the employment, paid salaries and returned back to Dar es Salaam. Thereafter, the respondent filed several applications to challenge the CMA Award which was struck out for various reasons.
Subsequently, the appellant filed execution proceedings which were thereafter granted with the Deputy Registrar commanding the respondent to satisfy the CMA Award.
Between October 6 and December 1, 2011, the Registrar was notified that the respondent paid the appellant 21,622,669.90. As a result, the matter was marked as settled.
However, more than three years later, the appellant on May 6, 2015 filed another application for execution of the Award for the reinstatement of his employment and payments of his all rights from the date of termination.
The Registrar found the matter to have been already settled and stuck out the application. The appellant commenced revision proceedings before the High Court, which confirmed the matter to have been settled and ordered he be paid other terminal benefits apart from those stated in the CMA Award.