ally ramadhan vs utrack africa ltd 2022 tzhcld 611 7 june 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 31 OF 2022 (Arising from the award issued on 4th October 2021 by Ho. Nyagaya, P, Arbitrator in Labour dispute No. CMA/DSM/KIN/R.723/19 at Kinondoni) BETWEEN ALLY RAMADHANI.............................................. APPLICANT AND UTRACK AFRICA LIMITED.............................. RESPONDENT RULING Date of last Order: 17/05/2022 Date of Ruling: 07/06/2022 B.E. K. Mqanqa, J. Applicant was an employee of the respondent under the fixed term contract of employment. On 12th March 2019, respondent terminated employment contract of the applicant. Aggrieved with termination of his employment, applicant filed labour dispute No. CMA/DSM/KIN/R.723/19 before the Commission for Mediation and Arbitration at Kinondoni claiming to be paid 18 months' salary as compensation, one month i salary in lieu of notice and one month salary as leave pay on ground that his employment was unfairly terminated. After conclusion of hearing of evidence of both sides, on 4th October 2021, Hon. Nyagaya, P, arbitrator, issued an award that there was valid reason for termination but that the procedure was not followed hence procedural unfair termination. The arbitrator awarded applicant to be paid TZS 1,000,000/= being two months' salary compensation. Aggrieved by the award, on 27th January 2022, applicant signed the notice of application together with an affidavit in support of this application for revision seeking the court to revise the said award. Applicant filed an electronic printout showing that the application was submitted for filing on 10th December 2021. Respondent filed the counter affidavit sworn by Raphael Nung'uni, her Human Resources officer. Together with the said counter affidavit, on 21st April 2021, respondent filed a notice Preliminary objection that the application was filed out of time. When the application was called for hearing of the preliminary objection, Mr. Kheri Kusekwa, learned counsel appeared and argued for 2 and on behalf of the applicant, while Mr. Deudedit Luteja, learned counsel appeared and argued for and on behalf of the respondent. Submitting in support of the Preliminary objection, Mr. Luteja, learned counsel for the respondent argued that applicant was served with the award on 29th October 2021 and was supposed to file the application for revision within 42 days from the date he was served with the award, but he filed this application on 7th February 2022. Counsel for the respondent submitted further that the online filing printout attached to the application shows that the application was filed on 10th December 2021, but the notice of application was signed by the applicant on 27th January 2022 and the affidavit in support of the notice of application was attested on the same date. He added that, documents that were filed in Court cannot at any rate be the same documents filed online on 10th December 2021. Counsel insisted that the application is time barred liable to be dismissed. In reply, Mr. Kusekwa, learned counsel for the applicant submitted that it is true that the notice of application and affidavit were filed in court on 7th February 2022 together with a printout showing that the application was filed online on 10th December 2021. He conceded 3 that, the notice of application was signed by the applicant on 27th January 2022 and affirmed on the same date before Lucas Nyagawa Commissioner for Oath. He conceded further that applicant was served with the award on 29th October 2021 and that applicant was supposed to file the revision within 42 days that ended on 9th December 2021, but he filed the application for revision on 10th December 2021. He conceded also that there is no document filed in Court showing that applicant signed the affidavit and notice of application prior to 10th December 2021. He was quick to invite the court to invoke the provision of Article 107A of the United Republic of Tanzania Constitution, 1977 by not dismissing the application. He argued that this is merely technicalities prohibited under the aforementioned Article of the Constitution. In rejoinder, Mr. Luteja submitted that there is no technicality in this application and that Article 107A of the Constitution cannot be relied upon. I have considered submissions of the parties and it is not disputed that the application was filed out of the 42 days provided for under Section 91(l)(a) of the Employment and Labour Relation Act, [Cap. 366 4 R.E. 2019]. Applicant attempted to attach a printout showing that he filed the application online on 10th December 2021 forgetting that both the notice of application and the affidavit were signed on 27th January 2022. In no way, he could have filed the application on 10th December 2021 using the notice he signed on 27th January 2022. More so, the jurat of the affidavit of the applicant in support of the application shows that it was attested on 27th January 2022 before Lucas Nyagawa, Advocate, Commissioner for Oaths. There is no explanation offered by the applicant for this situation. This tells that the online printout filed in court is a product of fraud. It was done purposely to show that the application was filed within time while it was out time. Mr. Kusekwa prayed that the preliminary objection be dismissed as it is a technicality prohibited under Article 107A of the United Republic of Tanzania Contistitution,1977. With due respect to counsel for the applicant, the issue of limitation is not a merely technicalities because it goes to the jurisdiction of the court. There is a plethora of authorities that parties to litigation cannot be left to choose as to when they should come to court, and that limitation of time is there to ensure that there is an end to each litigation otherwise parties will be kept on suspense and 5 unaware as to when they will be taken to court. I therefore reject the invitation to invoke the aforementioned Article of the Constitution. On basis of the foregoing, I hold that the application was filed out time and sustain the preliminary objection. That said and done, I hereby dismiss the application for being time barred. Dated at Dar es Salaam this 7th June 2022. B. E. K. Mganga JUDGE Ruling delivered on this 7th June 2022 in the presence of Kheri Kusekwa, Advocate for the applicant and Deusdedith Luteja, Advocate for the Respondent. B. E. K. Mganga JUDGE 6