ANDENDEKISYE

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA MISCELLANEOUS LABOUR APPLICATION NO. 11 OF 2023 (Originating from the Ruling o f the High court, Dodoma Sub Registry in Labour Revision No. 05/2022 arising from the Arbitral Award o f the Commission for mediation and Arbitration o f Dodoma at Dodoma in dispute No. CMA/DOD/82/2014) ANDENDEKISYE MWAKINYAKA................................................. APPLICANT VERSUS DODOMA CITY COUNCIL........................................................RESPONDENT RULING 10.12.2024 HASSAN, J.: The applicant has filed this application for extension of time made under Section 11(1) of the Appellate Jurisdiction Act, [Cap 141 R. E 2019] for him to file notice of appeal in the Court of Appeal against the decision of this court in Labour Revision No. 05 of 2022. The application is supported by the affidavit sworn by the applicant himself. The respondent contests the application. She filed a counter affidavit sworn by Ms. Ilambona Mahuba, the respondent's learned State Attorney. When the application was scheduled for hearing, the applicant was represented by Mr. Erick Christopher, Advocate, while the respondent was represented by Mr. Ilambona Mahuba, learned State Attorney. The matter preceded by written submission. The parties duly complied to the order of preference in filing their written submissions. The applicant's counsel kickstarted his submission by arguing that, that there is no any statute which has defined what amounts to sufficient cause rather than court's precedents, thus he cited Valerie Mcgivern Vs Salim Fakhrudin Dalai, Civil Application No. 15 of 2015 Court of Appeal of Tanzania at Tanga. He went on submitting that, grant of extension has been in the discretion of the court as it was cemented in Lyamuya Construction Company Ltd Vs Board Of Registered Trustee Of Young Women's Christian Association Of Tanzania, Civil Application No. 2 of 2010. The learned counsel added that, being guided by the above two precedents, the Applicant herein seeks this application as provided from paragraph 4-8 of his supporting affidavit basing on the grounds that despite making physical follow-ups, copies of the Ruling and drawn order was supplied to him on the 25th July, 2023, while the impugned ruling was pronounced on the 20th June, 2023. Thus, he was outside of the 30 days from the date of ruling in order for him to file the intended notice. He added that, it should be noted at the time of pronouncing the same this honourable Court had decided on the matter of operational requirement which was never determined at the level of CMA nor raised by parties in their written submissions during hearing of the Application for the said Revision. Thus, as preparing a notice of intention to appeal requires one to state if he intends to appeal against the whole decision or part thereof, hence without having a copy of the said Ruling one could not prepare and file the said Notice. He submitted further that, firstly, it should be noted that parties herein were promised to be supplied with said copies by 3rd July, 2023 as it has been the initiatives/mission of this Honorable Court that parties to be supplied with judgment and ruling as soon as possible but it was until on the 25th July, 2023 when it was supplied while the time limit had already expired as stated under paragraph 4 of the said affidavit. Thus, this Honorable Court should find that this reason fits into what amounts to sufficient cause taking into account the circumstances elaborated herein. Secondly, the Applicant herein was diligent by making the said physical follow-up and we implore this Honorable Court to find that physical follow-ups were enough basing on the circumstances advanced herein above. And, the last page of the drawn order is evident that the same was issued on the 25th July, 2023. Thirdly, that delay is ordinate as the Applicant was only late for about 21 days of which such notice was supposed to be filled on the 19th July, 2023 while this application was filed online on the 8th August, 2023. Thus, it implores that this Honorable Court to find that such days are ordinate. Fourthly, that the Applicant has passionately accounted for each day of delay as per paragraph 5 of the Affidavit that from 19thJuly, 2023 until 25th July, 2023 he was waiting for the said copies of ruling and drawn order and from 25th July, 2023 until the date of filling this Application such time was spent on preparing, drafting and filing this Application. Fifthly, that there is an important point of law as during analysis of the evidence the Revision Honorable Judge raised extraneous matter on termination by operational requirement as stated in the Ruling of this Honourable Court, that the Court is of the view that termination of the Applicant herein was due to operational requirement thus based on fair reason of termination which was not raised or determined during CMA level as it is apparent no decision or issue was determined on termination by operational requirements as at page 5 of the CMA award the respondent herein was denying the Applicant herein to be her employee, thus, no any evidence was tendered by parties herein on termination by operational requirement. Lastly, the applicant prayed the court to grant this Application claiming that the intended appeal has high chances of succeeding. On their part, the respondent's learned State Attorney firstly adopted his counter affidavit to form part of the submissions against the application and added that, in order for the applicant to be granted extension of time, he has to show good cause. He went on submitting that, what amounts to good cause has been interpreted in Lyamuya Construction Company Limited versus Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No.02 of 2010 (Unreported). That, the factors stressed in the said case were reiterated in Metro Petroleum Tanzania Limited and three others versus United Bank for Africa, Civil Application No.530/16 of 2018 (unreported). The learned State Attorney submitted further that, he has perused the applicant's affidavit and seen that, the applicant has failed 5 to account for each day of the delay. That, the applicant needed to prove his allegations of making follow ups of the said copy of Ruling and drawn order by attaching a copy of a letter proving the same and not by mere words. Thus, it is his opinion, the applicant has no evidence to prove his reasons for the failure to lodge his notice of appeal within time. With regards to determination of Labour Revision No.05/2022 basing on the matter of operational requirement, it was the learned State Attorney's opinion that, the court was correct since at the time of analyzing evidences in Revision or Appeal, the Labour Court is empowered to step in the shoes of the trial Court by re-evaluating and assessing the evidence tendered by the parties. He cited Erastus Vicent Mtui versus Coca Cola Kwanza Limited, Consolidated Civil Appeal No.619 of 2022 and 813 of 2023, TZCA at Dar es Salaam (unreported) and Agro Industries Ltd vs Attorney General (1994) TLR, 43. The respondent finally prayed the court to dismiss the application since litigations must come to an end. At this stage, having considered the submissions from the parties, the question to be determined is whether this application is tenable or not. There is no dispute that the applicant has delayed to file his intended notice of appeal to the Court of Appeal. The only issue for determination is whether or not the applicant has shown sufficient cause for his delay in filing the intended Notice of Appeal in the Court of Appeal registry. It is undisputed fact that, the law gives mandate for the court to extend time for filling notice of appeal. Section 11(1) of the Appellate Jurisdiction Act, [Cap 141 R. E 2019] provides, thus; "11. -(1) Subject to subsection (2), the High Court or, where an appeal lies from a subordinate court exercising extendedpowers, the subordinate court concerned, may extend the time for giving notice o f intention to appeal from a judgment o f the High Court or o f the subordinate court concerned, for making an application for leave to appeal or for a certificate that the case is a fit case for appeal, notwithstanding that the time for giving the notice or making the application has already expired." However, this remedy is not automatic. The applicant has a duty to show a sufficient reason which caused the delay. Thus, in determining whether this application has merit, this court is obliged to determine if the applicant has adduced sufficient reasons. This stand has been reiterated in a number of Court of Appeal decisions such as Lyamuya Construction Company Limited v. Board of registered Trustees of Young Women Christian Association of Tanzania, (supra), Tanga Cement Company Ltd v. Jumanne D. Masangwa and Amos A. Malwanda, Civil Application No. 2 of 2013 and Mumello v. Bank of Tanzania [2006] TLR 227. In this application, the applicant's reasons for extension of time are that, the applicant was delayed to be supplied with a copy of the decision of this court and another reason being illegality on the disputed Ruling of this court. I will start my deliberation on the reason of illegality. In his submissions on the purported illegality, the applicant alleged that, the court raised extraneous matter in termination by operational requirement as stated in the Ruling of this Court, whereby, the Court was of the view that termination of the applicant herein was due to operational requirement. Thus, based on fair reason of termination which was not raised or determined during CMA. I am alive that of the well-established principle of law that illegality is one of the grounds for extension of time. In Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 185 the court held; 8 "We think that where, as here, the point o f law at issue is the illegality or otherwise o f the decision being challenged, that is o f sufficient importance to constitute 'sufficient reason' within the meaning o f rule 8 o f the Rules [now rule 10 o f the New Rules] for extending time. To hold otherwise would amount to permitting a decision, which in law might not exist to stand.................." However, for illegality to be a ground for extension of time, it must be apparent on the face of record. See Chandrakant Joshubhai Patel v. Republic, [2004] TLR 218 where it was held; "An error apparent on the face o f the record must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process o f reasoning on points on which there may conceivably be two opinions...It can be said o f an error that is apparent on the face o f the record when it is obvious and self- evident and does not require an elaborate argument to be established. . . " In the instant case, having looked on the face of the Ruling as alleged by the applicant without digging so much into the same, since doing so will prejudice the matter, in my view, I do not see any point of law on the face of records rather than the court exercising its powers as the first appellate court in re-evaluating the evidence. As it was decided in Siza Patrice V. Republic Criminal Appeal No. 19/2010 (CAT - unreported) where the Court held: "We understand that it is settled iaw that a first appeal is in the form o f rehearing. The first appellate court has a duty to re-evaluate the entire evidence in an objective manner and arrive at its own findings off act, if necessary" That being the case, the reason for illegality is hereby dismissed as it is not apparently seen on the face of record. Now coming to another reason for extension of time, thus, the court delayed to supply the applicant with a copy of the Ruling. The applicant alleged that, after the Ruling was delivered, he was promised by the court to be supplied with a copy on the 3rdJuly, 2023, but the same was supplied to him on the 25th July, 2023, when time limit had already expired as stated under paragraph 4 of the applicant's affidavit. 10 As I have pointed out earlier on, the relief for extension of time is not automatic but rather a party who wants to exercise the discretion needs to prove that he initiated the process of being supplied with a copy of proceedings, judgment or ruling by taking a move in requesting for the same by writing a letter if the ordinary time limit is ending. Thus, after the attempt, time will start running from the date the copies would be supplied by the court to the parties in compliance with section 19 of the Law of Limitation Act, Cap 89 [R. E 2019]. In the case of Mohamed Salimini vs Jumanne Omary Mapesa, Civil Appeal 345 of 2019 (unreported) the court had this to say; "Suffice to state, having in mind the duty to ensure there is a decree andjudgment attached to the record o f appeal as stated in section 19(2) o f the LLA fails on the appellant, there is also a duty to apply for a decree within the time prescribed for appeal." In the instant case, the appellant alleged to have been promised to be supplied with the copies on the 3rd July, 2023, but the same was supplied to her on the 25th July, 2023. There is no evidence that the applicant did initiate the process by writing a letter, rather he stayed up to the time when he was supplied the same. Thus, he has failed to act ii diligently for him to be protected by the discretion of this court. In Loswaki Village Council and Another vs Shibesh Abebe [2000] TLR 204 it was stated that; "Those who seek the protection o f the law in a Court o f justice must demonstrate diligence". The applicant ought to have acted diligently by writing a formal letter requesting for the copy of judgment and decree while the clock was still ticking. In the instant case the applicant has not put any effort in making follow ups of the copy of Ruling but rather, he has only alleged by mere words. Having discussed all the above, I also feel obliged to stress that in seeking for extension of time, an applicant must show reasonable cause for the delay and must also account for each day of the delay. See the case of Bushiri Hassan vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, CAT (unreported) where the Court of Appeal held inter-alia that:- "...the delay o f even a single day, has to be accounted for otherwise there would be no proof o f having rules 12 prescribing periods within which certain steps have to be taken. " See also Said Nassor Zahor and Others vs. Nassor Zahor Abdallah El Nabahany and Another, Civil Application No. 278/15 of 2016, CAT, (unreported) and Finca T. Limited & Another vs Boniface Mwalukisa, Civil Application No. 589 of 2018. All said and done, the applicant has thus failed to account for each day of the delay in filing his intended Notice of Appeal, if any. That said, the application is devoid of merit and the same is hereby dismissed. No order as to costs. It is so ordered. DATED at DODQMA-.this 10th day of December, 2024. ^7 ........ ... JUDGE 10/ 12/2024 13