Africa-Press – Tanzania. THE Court of Appeal has confirmed dismissal of a former Development Programme Manager with Vocational Education and Training Authority (VETA), Deogratias Kabado from employment for poor performance.
Justices Augustine Mwarija, Barke Sahel and Patricia Fikirini ruled against Mr Kabado, the appellant, after striking out an appeal he had lodged against the decision of the High Court’s Labour Division, which had confirmed the award issued by the Commission for Mediation and Arbitration (CMA).
“We find that the appeal is incompetent and hereby proceed to strike it out without costs as the matter arose from a labour dispute,” they ruled after upholding one ground of objection raised by counsel for VETA, the respondent.
In the point of objection raised, the counsel for the respondent had submitted that the appellant’s appeal was incurably defective as there was no memorandum of appeal on record, which is contrary to Rule 90 (1) (a) of the Court of Appeal Rules, 2009, as amended.
During the hearing session, the counsel for the appellant had conceded to the preliminary point of objection raised by the respondent’s counsel.
He was, however, quick to impress upon the court that the defects were curable under section 3A of the Appellate Jurisdiction Act and that the appellant should be allowed to amend his record of appeal in terms of Rule 111 of the Rules.
In their decision, the justices note that the memorandum of appeal in the record of appeal refers to the different parties and the number of the case from which the decision arose.
“From what is contained in the record of appeal it is obvious there is no memorandum of appeal in reference to the intended appeal by the appellant,” they said, adding that Rule 111 is applicable when there is a valid or proper document.
The justices pointed out that going by the interpretation of Rule 111 of the Rules it means that there must be in existence in the record of appeal filed in Court, documents which need to be rectified for purposes of improving the record of appeal.
“In the instant case there is none. It is therefore impossible for the Court to grant the application as there is no valid memorandum of appeal which can be amended,” they said.
The justices found that since the memorandum of appeal which is among the basic documents in the institution of appeal, there being none filed, rendered the appeal incompetent.
“We, thus, agree with (the counsel for the respondent) that the memorandum of appeal in the record of appeal cannot be amended, as there is no memorandum of appeal to be amended,” they said.
