Tanesco lose court appeal in reinstatement order

FAUSTINE KAPAMA

THE Court of Appeal has rejected the application by Tanzania Electric Supply Company (Tanesco) Limited, challenging the High Court decision for the reinstatement of its former employee, Mr Gadiel Shoo, whose employment services as an artisan was unlawfully terminated.

Justices Nathalia Kimaro, Bautel Mmilla and Augustine Mwarija ruled against Tanesco after noting that the application for leave within which they were supposed lodge an appeal had not been accompanied with drawn order of the High Court in respect of the decision which dismissed the application for leave.
“It is clear that because the drawn order of the High Court was not incorporated, the omission rendered the application incompetent liable to be struck out,” the justices ruled.
Referring to Rule 49 of the Court of Appeal Rules, they said, “Every application for leave to appeal shall be accompanied by a copy of the decision against which it is desired to appeal and where application has been made to the High Court for leave to appeal by a copy of the order of the High Court.”
Advocate Majura Magafu, for Tanesco, had readily conceded that the drawn order was missing, but was quick to add that since the ruling of the High Court has been incorporated in the court record, the omission was not fatal as to render the application incompetent.
On the other hand, advocate Evans Nzowa, for Mr Shoo, had submitted that notwithstanding the fact that the ruling of the High Court was attached, the drawn order too ought to have been incorporated as mandatorily required by the provisions of Rule 49 (3) of the Rules. In their ruling, however, the justices had this to say, “When we read this provision between lines, we gather that so as to satisfy the requirement in that regard, it is mandatory to incorporate the extracted order of the High Court.”
In 1983, Mr Shoo was employed by Tanesco as an artisan.
On August 14, 2009, he was terminated for absenteeism. He successfully contested the termination before the Commission for Mediation and Arbitration (CMA), which ordered his reinstatement.
Tanesco was not satisfied and instituted revisional proceedings before the High Court’s Labour Division at Dar es Salaam.
The High Court upheld the CMA decision, holding that though the misconduct which was the subject of the disciplinary proceedings was serious in nature, it was not so serious as to lead to an intolerable employment relationship.
It was at that point in time when Tanesco decided to seek leave of the High Court to challenge such decision. The court rejected the application.
Tanesco had to seek a second bite before the Court of Appeal for similar prayers, but also such efforts have been rendered fruitless.