ANNA REUBEN MTAITA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 20681 OF 2024 ANNA REUBEN MTAITA.………………........................... APPLICANT VERSUS STANBIC BANK TANZANIA LIMITED ………………….. RESPONDENT RULING Date of Last Order: 09/09/2024 Date of Ruling: 27/09/2024 B. E. K. Mganga, J. Applicant has filed this application seeking he court to extend time within which to file execution. Brief facts of this application as obtained in the affidavit of Anna Reuben Mtaita, the applicant in support of the application are that, in 2003 applicant was employed by Stanbic Bank Tanzania Limited, the herein respondent, as Assistant Finance Manager. It happened that, employment relationship between the two turned into sour, as a result, on 29th March 2006, respondent summarily dismissed applicant from employment. Dissatisfied with the said summary dismissal from employment, applicant referred the dispute to Conciliation Board as a result, respondent was ordered to reinstate the applicant to her previous position. Respondent was aggrieved, as a result, she referred the matter 1 before the Minister of Labour who also confirmed the decision of the Conciliation Board. Purporting to implement the order of reinstatement, respondent summoned applicant and notified her that the previous position was no longer available and asked her to negotiate either to be retrenched or accept lower position that would amount to degradation. While discussions were underway, respondent charged applicant alleging that she has absconded from work and consequently terminated her employment in absentia. Noting the said termination of her employment allegedly due to abscondment, applicant filed Execution No. 324 of 2018 before this court praying the court to order respondent to comply with the order of reinstatement issued by the Minister for Labour. The executing officer, after hearing the parties, delivered a ruling dismissing the application on ground that applicant was properly reinstated. Applicant was aggrieved with the said ruling, as a result, she filed Revision Application No. 665 of 2019 before this court. The said revision No. 665 of 2019 was also dismissed for want of merit. Still aggrieved, applicant filed Civil Appeal No. 83 of 2021 before the Court of Appeal. On 6th August 2024, the Court of Appeal delivered its judgment allowing the appeal, reversing this Court’s decision holding that in no time, applicant was reinstated in her former 2 employment as required by the law consequent to the order of the Minister. In opposing this application, respondent filed both the Notice of Opposition and the counter affidavit sworn by Lilian Gawile, her Legal Advisor. In the said counter affidavit, it was deponed that there is no sufficient cause to warrant extension of time as there is nothing to be executed because, respondent is ready to comply with the order of the court. It was also deponed that, applicant has not accounted for the delay and there is no good cause for the application to be granted. When the application was called on for hearing, applicant was represented by Mr. Amos Paul, learned advocate while respondent was represented by Mr. Anthony Arobogast Mseke, learned advocate. Arguing in support of the application, Mr. Paul submitted that, applicant had twelve (12) years within which to file execution application, but the said period expired on 24th August 2020. He submitted further that, applicant was in Court’s corridors as there were Revision No. 665 of 2019 and Civil Appeal No. 83 of 2021. He added that, Civil Appeal No. 83 of 2021 was decided by the Court of Appeal on 6th August 2024 in favour of the applicant. That, immediately, applicant engaged their firm and on 15th 3 August 2024, a demand note was sent to the respondent seeking compliance with the order of the Minister within seven days that expired on 22nd August 2024. He went on that, applicant filed this application on 23rd August 2024. Mr. Paul further submitted that, applicant has accounted for each day of the delay and cited the case of Titus Mega v. National Insurance Corporation (TZ) limited, Miscellaneous Labour Application No. 165 of 2021, HC (unreported) to support his submissions. He strongly submitted that, applicant has demonstrated good cause for the delay because, the matter was in court corridors during the time the period of filing execution expired. With those submissions, he prayed the court to allow application. Resisting the application, Mr. Mseke submitted that, there is no chance of success in the application at hand. He cited the case of Ismail Mohamed & 3 Others v. Nurdin Kigali Nuha & 3 Others, Miscellaneous Land application No. 07 of 2021, HC(Unreported) to support his submissions that, for extension of time to be granted, the court must consider chances of success of the applicant in the intended matter. He strongly submitted that, there is no chance of success because, respondent has compiled with the provisions of 42(4) and (5) of Security of 4 Employment Act[Cap. 387 R.E. 2002]. When probed by the court, he admitted that respondent has not reinstated the applicant. In the same submission, Mr. Mseke submitted that, there is no chance of success because, respondent intend to pay what applicant is claiming. He implored the court to dismis the application for want of merit on reason that, there is nothing to be executed as respondent intend to comply with the order of the Minister. Mr. Mseke further submitted that; applicant has not accounted for the delay from 2008 the year the Minister for Labour issued the order of reinstatement to 2019 when she filed revision No. 665 of 2019. With those submissions, he prayed the court to dismiss this application for want of merit. In rejoinder, Mr. Paul submitted that, execution has not been satisfied hence there is high chance of success. He also submitted that, there is no proof that respondent has complied with the order of the Minister. I have carefully read the affidavit and the counter affidavit filed by the parties in this application and considered rival arguments made on behalf of the parties. In dispossing this application, I will only consider 5 evidence of the parties in both the affidavit and the counter affidavit. I take that stance because both the affidavit and the counter affidavit are substitute of oral evidence as it was held in the case of of Rustamali Shivji Karim Merani vs Kamal Bhushan Joshi (Civil Application 80 of 2009) [2012] TZCA 16 (27 February 2012), Attorney General vs Dickson Paulo Sanga (Civil Appeal 175 of 2020) [2020] TZCA 371 (5 August 2020),[2020]1 T.L.R 61(CA),Chavda & Company Advocates vs Arunaben Chaggan Chhita Mistry & Others (Civil Application 25 of 2013) [2017] TZCA 154 (22 May 2017). I should point out at this juncture that, submissions by counsel however strong or convincing they are, cannot be considered because that is not evidence. See the case of Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal No. 82 of 2017) [2018] TZCA 297 (14 December 2018) and Sunlon General Building Contractors Ltd & Others vs Kcb Bank Tanzania Ltd (Civil Appeal 253 of 2017) [2020] TZCA 353 (16 July 2020). It is my considered view that, there is no evidence supporting submissions by Mr. Mseke that respondent has complied with the provisions of section 42(4) and (5) of Cap. 387 R.E. 2002(supra) hence that is submissions from the 6 bar not worth to be considered. In fact, it was submitted on behalf of the applicant and conceded by counsel for the respondent that, respondent has not reinstated the applicant. In other words, respondent has not complied with the order of the Minister for Labour and the Court of Appeal. It was deponed and submitted on behalf of the respondent that she is ready to comply with the order. In my view, that is only a promise to be performed in future by the respondent. This court cannot act on that promise and dismiss this application because, (i) there is no guarantee that respondent will honour that promise and (ii) it was not stated in the counter affidavit as to when and how respondent will comply with the order of reinstating the applicant. It was deponed in the counter affidavit and submitted by Mr. Mseke that, applicant has not accounted for the delay. On the other hand, it was deponed in the affidavit and submitted on behalf of the applicant that, she was in court corridors until expiry of the period of filing execution application. I have carefully examined the affidavit and annextures thereof in support of the application and find that, in 2012, applicant filed execution application No. 253 of 2012. The said execution was granted on 3rd December 2014, but the order was reviewed and quashed on 23rd 7 March 2016. On 4th June 2018, applicant filed an application praying the Chief Executive of the respondent to show cause as to why he /she should not be committed as civil prisoner for failure to comply with the reinstatement order. Evidence of the applicant in the affidavit in support of this application shows clearly that, she also filed Execution Application No. 324 of 2018 seeking the respondent to comply with the order of reinstatement issued by the Minister for Labour on 25th August 2008 but the executing officer dismissed that application stating that applicant was already reinstated. It is undisputed that, applicant was aggrieved with the ruling and order in execution No. 324 of 2018 as a result, she filed revision No. 665 of 2019 but it was also dismissed. All these facts are contained in this court’s judgment (S.A.N. Wambura, J as she then was) in the case of Anna Reuben Mtaita v. Stanbic Bank Tanzania Limited, Labour Revision application No. 665 of 2019 (Unreported) annexed to the applicant’s affidavit. Aggrieved by the judgment of this Court in the above cited case, applicant successfully appealed to the Court of Appeal. See the case of Anna Reuben Mtaita vs STANBIC Bank Tanzania Limited (Civil Appeal No. 83 of 2021) [2024] TZCA 687 (6 August 2024). Therefore, applicant was in court corridors and at that time, it was impossible 8 execution to be done because that was the centre of the dispute between the parties. Therefore, submissions by counsel for the respondent that applicant has not accounted for the delay from 2008 to 2019 cannot be valid. It is the respondent who made execution to be impossible at that time. I also find that, applicant has adduced good reasons for the delay because she was in court corridors. It was submitted on behalf of the respondent that, applicant has no chance of success. With due respect, respondent has not complied with the order of reinstating applicant to her employment, therefore, it cannot be said that she has no chance of success. Be as it may, in the application at hand, I am called only to determine extension of time and not the main application namely execution. In the application at hand, I am only invited to exercise my discretionary powers based on materials and facts brought before me and not to determine the application for execution that will be determined by the executing officer. In this application, I am not called to determine whether applicant will succeed or not. Therefore, chance of success in the intended execution is irrelevant at this time. Considering evidence in the affidavit in support of the application, I am of the settled 9 mind that, applicant has adduced good grounds for this application to be granted. I have pointed hereinabove that, applicant was in court corridors for a long time up to 6th August 2024 when the Court of Appeal concluded that she was not yet reinstated in her employment. See the case of Anna Reuben Mtaita vs STANBIC Bank Tanzania Limited (Civil Appeal No. 83 of 2021) [2024] TZCA 687 (6 August 2024). In my view, all the time applicant spent in court corridors strugling to execute the order of reinstatement but being blocked by the respondent should be excluded. I am of that view because, it was impossible for execution to be carried out while there was a pending appeal before the Court of Appeal challenging the judgment of this Court, which in fact, was relating to the said excution. The position could have been different had there not be the said appeal and applicant had not filed execution application for all that period. In excluding that period, I am fortified by the provisions of section 19(2) of the Law of Limitation Act [Cap. 89 R.E. 2019 that reads: - “In computing the period of limitation prescribed for an appeal, an application for leave to appeal, or an application for review of judgement, the day on which the judgment complained of was delivered, and the period of time requisite for obtaining a copy of the decree or order appealed from or sought to be reviewed, shall be excluded.” 10 The above quoted section 19(2) of Cap.98 R.E. 2019(supra) was considered by the Court of Appeal in the case of Nicodemus Lusambo vs Gerada Zacharia (Civil Appeal No.486 of 2022) [2023] TZCA 17319 (9 June 2023). It is my view that, twelve years available to the applicant within which to file an application for execution started on the date the Court of Appeal finally determined the appeal on 6th August 2024 and not otherwise. I am of that view because, it was impossible for applicant to file an application for execution while there was a pending appeal before the Court of Appeal. That said and done, I allow this application. Dated at Dar es Salaam on this 27th September 2024 B. E. K. Mganga JUDGE Ruling delivered on 27th September 2024 in chambers in presence of Howard Msechu, Advocate holding brief of and Anthony Mseke, Advocate for the Respondent but in the absence of the Applicant. B. E. K. Mganga JUDGE 11