ardhi university vs jerome kessy 2020 tzhcld 82 30 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 705 OF 2019 ARDHI UNIVERSITY........................................APPLICANT VERSUS JEROME KESSY................................ .......... RESPONDENT RULING Date o f last Order: 25/03/2020 Date o f Ruling: 30/04/2020 Z.G-Muruke, J. Application for extension of time is supported by an affidavit of Benson Edward Hoseah, reason for extension are explained in paragraph 3,4,5, 6 and 7 that read as follows: (3) That on 18th October, 2019 the Office of the Solicitor General received a letter from the applicant informing the office of the Solicitor General that the applicant is aggrieved by the said award and wants the award to be challenged in this court. A copy of the said letter is annexed hereto and marked as Annexure "OSG-2" and leave of the Court is craved it to form part of this affidavit. (4) The said letter mentioned hereinabove went through internal office procedures and was assigned to me on 4th November, 2019 to handle it to its finality. That, while I was handling the matter assigned by engaging myself in extensive research on 13th November, 2019, I had a serious family issue which required my personal presence and I had to attend in Maswa. (5) On 25th November, 2019, I was back in the office and unfortunately the time to file revision against the award had already lapsed on 20th November, 2019. (6) That the applicants preferred this application for extension of time in order to challenge the award as there is an error material in the decision of the arbitrator which involves injustice and also there is unsatisfactory and contradictions reasoning by the arbitrator. (7) That there are serious points of law which needs the attention of this court namely:- (i) Where once the Employee secured scholarship leave to study is granted automatically without expressly permission from the employer. (ii) Whether the Commission for Mediation and Arbitration has jurisdiction to entertain labour dispute of a complainant who is in the public service. Respondent filed counter affidavit to refute reasons advanced in affidavit in support, relevant paragraph read as follows. (5) That, the contents of paragraph 4 and 5 of the affidavit are disputed and the applicant is put to strict proof. It is the respondent's case that, the applicant is an institution which has many employees who are in a position to handle matters addressed to her anytime whereas the absence of one State Attorney cannot affect its capacity 2 to handle its day to day affairs. It is further stated that, the State Attorney assigned to take conduct of the matter sought to be revised left his duties to attend undisclosed family matter of which no travelling document was attached to substantiate the claim. That, the contents of paragraph 6 and 7 and (ii) are disputed and the applicant is put to strict proof. It is the respondent case that, the applicant initiated the respondent's scholarship for PHD studies in Germany however later on in the process maliciously and with ill intent denied the respondent formal permission despite several demands from the respondent and despite the respondent's fulfillment of the pre-conditions imposed by the applicant for the formal permission to be granted. It is further stated that the respondent's alleged absenteeism which culminated into his termination from employment was on reasonable cause as the respondent went for PHD studies in Germany of which he successfully completed his studies and was awarded a Doctoral Philosophy in engineering at TU Dortmund University Germany. It is stated that, the respondent's attendance for PHD Studies in Germany was in line with the laws governing the Institutions affairs, Labour Laws and our Constitution. It is further stated that, the Commission for Mediation and Arbitration had the jurisdiction to entertain the dispute the subject of this application as the question regarding its jurisdiction with respect to the respondents referral had already been determined by the Commission for Mediation and Arbitration Dar es Salaam Zone through its ruling dated the 23rd of May, 2016 after the applicant rose a preliminary objection regarding the jurisdiction for the Commission in determination of the respondent referral. A letter dated 5th February, 2013 with Ref. No. ARUP.1285, a letter dated 23rd September, 2013 with Ref. No. ARU/P.1285, a letter dated 21st October,2013. A letter dated 28th October, 2013 with Ref. No. ARU/P.1285, a letter dated 11th April, 2014, a letter dated 12th May, 2014. A copy of the ruling dated 23rd May, 2016, a copy of PHD certificate awarded by Tu Dortmund University Germany, ARU Charter, 2007 is hereto attached and marked as JK- 1,2,3,4,5,6,7, 8 and 9 respectively. On the date set for hearing, applicant was represented by Yohana Maiko, state Attorney and Esther Meiludie. Applicant counsel submitted that, the power to grant extension of time is provided under Rule 56(1) of the Labour Court Rules GN 106/2007, same is upon discretion of the court. In this case time delayed is only 7 days. The application was filed on 28th November, 2019, this is not in ordinate delay. On 18th October, 2019 the office of Solicitor General received letter from applicant and on 4th November, 2019 the case file was assigned to Mr. Benson Hosea State Attorney, mentioned had serious family issues to handle, he thus travelled to Maswa. When he came back, on 20th November, 2019, time within which to file revision had already lapsed. Thus, delay was due to above reasons. In an intended revision court is to determine the following. (i) Whether once employee secured scholarship leave to study is automatically granted without express permission from employer. (ii) Whether the Commission for Mediation and Arbitration had jurisdiction to entertain labour dispute of complainant. Respondent on the other hand a part from adopting counter affidavit sworn by respondent, submitted that, reasons for extension are only two (i) Delay is only for 7 days (ii) State Attorney who was assigned this matter travelled to Maswa to attend family issues. These two reasons are just an after thoughts, for filing application out of time. There is no any evidence to prove that Mr. Benson Hosea travelled to Maswa as alleged. The award was issued on 9th October, 2019 applicant became aware on the same day. It was not until 18th October when Officer of Solicitor General received a letter in relation to the award from the applicant. Paragraph 4 of Mr. Benson Hosea affidavit admit that, he was assigned this matter on 4th November, 2019 i.e. 19 days from when the office of Solicitor General received the letter. On 13rd November, 2019 it is when Mr. Benson Hosea travelled to Maswa. There is plenty of time that was wasted. There is nothing serious to privent applicant from filing the application. It is negligence, which according to the case of Fortunatus Masha Vs, William Shija 1997 TLR 213 cannot amount to sufficient cause. Solicitor General Office is large Institutions, absence of one State Attorney cannot prevent institutions from acting timely. Example is drawn, from this case, Edward Hosea is the one who swear the affidavit, and prepare the document, but application is being argued by Mr. Yohane Michael. In 5 application for extension of time, action taken by applicant to the filing of this has to be counted for thus, no sufficient cause adduced. On illigalities, alleged at paragraph 7 of affidavit in support of the application, same has not be demonstrated. There for no reason to justify extension. In rejoinder applicant counsel started that, to prove that, Mr. Johnson Hosea travelled, affidavit itself is a proof as it is a sworn evidence. The delay was just for 8 days. The issue that Solicitor General is large institutions, yes, but there are less than 60 State Attorneys all over the contrary to attend all cases in which the Government has an interest, that's why when Mr. Benson Hosea came, he had to handle the files. In totality applicant counsel insisted that there are sufficient cause for this court to grant extension sought. I have carefully considered and weighed the rival arguments from both parties. I feel it is necessary to reiterate, as a matter of general principle that whether to grant or refuse an application for extension of time like the one at hand, is entirely in the discretion of the Court. The Law, Rule 56(1) of the Labour Court Rules, GN No. 106/2007, provides that:- "The court may, extend or abridge any period prescribed by these rules on application and good cause shown, unless the court is precluded from doing so by any written law." It is now settled principle of law that in an application for extension of time applicant is required to show sufficient cause for delay. Sufficient cause would be shown for the delay in taking the necessary steps in 6 instituting an appeal or filing application as is the time prescribed under the specific law. However, it is to be observed that the court can only exercise its power under the law to extend time if sufficient cause is shown to explain the delay. But, that discretion is judicial and so it must be exercised according to the rules of reason and justice. " In deciding whether or not to allow an application to appeal out o f time, the court has to consider whether or not there is 'sufficient reasons' not only for the delay, but also 'sufficient reasons' for extending the time during which to entertain the appeal." The term "sufficient reasons" has been lucidly expounded especially in the stated case of Ratma Vs. Cumarasamy and another [1964] 3 All E.R 933 where lord Guest was of opinion that, "Sufficient reason............ must be determined by reference to all circumstance of the particular case.... which will move the court to exercise its juridical discretion in order to extend the time limited by rules" In the case of Lyamuya Construction Company Limited Versus Board o f Registered Trustees o f Young Women's Christian Association o f Tanzania, Civil Application No. 2 of 2010 Hon. Massati, JA was of the following view; "As a matter o f general principle, it is in discretion o f the court to grant extension o f time. But that discretion is judicial, and so it must be exercised according to the rules o f reason and justice and not according to the private opinion or arbitrary. On the authorities however, the following guidelines may be formulated: 1 (a) The applicant must account for all the period o f delay. (b) The delay should be inordinate. In case of Benedict Mumello Vs. Bank of Tanzania Civil Appeal No. 12/2002 (unreported) it was held that. "it was trite law that an application for extension o f time is entirely in the discretion o f the Court to grant or refuse it And that extension o f time may only be granted where it has been sufficiently established that the delay was with sufficient cause. " "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length o f the delay, the reason for delay, whether there is an arguable case on the appeal and the degree of prejudice to the defendant if time is extended " In the case of Blue line Enterprises Ltd Vs. East African Development Bank Misc. Civil Cause No. 135/1995 where Katiti, J held that:- "It is trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially. Upon sufficient cause being shown which has to be objectively assessed by court." In the case of Republic Vs. Yona Kaponda and 9 others [1985] T.L.R. 84 the Court of Appeal of Tanzania set the yardstick of the circumstances under which extension of time can be granted. It stated as follows. 8 It is now settled that in an application for extension of time applicant is required to show sufficient cause for delay. Sufficient cause would be shown for the delay in taking the necessary steps in instituting an appeal or filing application as is the time prescribed under the specific law. However, it is to be observed that the court can only exercise its powers under the law, to extend time if sufficient cause is shown to explain the delay. According to the records award sought to be revise was issued on 9th October, 2019. On 18th October Solicitor General received a letter from applicant in relation to the process of revision after 9 days from the date of award issued. Mr. Benson Hosea was assigned the file on 4th November, 2019, being 19 days after Solicitor General received the letter. On 13rd November, 2019 is when Mr. Benson Hossea alleged to have been travelled being after 9 days from the date assigned the file. Learned State Attorney came back on 20th November, 2020 being after 7 days from the date he travelled. There is no counting of 9 days passed from the date of the award issued to the date of writing letter 18th October 2020. Equally there is no counting of 18 days passed from when file received at the Solicitor General to date of assignment of the file to Mr. Benson Hosea. More so, there is no counting of days 9 days passed from 4th November to 13rd November when Mr. Benson Hossea travelled. Accounting for each day of the delay is the requirement of the law as was stated by the Court of Appeal in the case of SAFARI PETRO VS. BOAY TLEMU (CAT) Civil Application No. 320/2017 at Arusha where the Court, Mwangesi,JA (unreported) stated at page 5 as follows: 9 Respondent counsel insisted that the position of law is that, where there has been delay in doing any act in compliance with the requirement of law, each day of the delay has to be accounted for, referring case of Bushiri Hassan Vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007, where the court stated that: Delay of even a single day has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken. Failure to account for delays of twenty five days was held to be fatal by the Court of Appeal in the case of Lyamuya Construction Company Ltd Vs. Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010, Court of Appeal of Tanzania, at Dar es Salaam, where it was stated as follows at page 7-8 as regards failure to explain the delays: " For the benefit o f the applicant■the period between 25/07/2006 and 26/02/2010 should be excluded. According to paragraph 23 he obtained a copy o f the ruling on the application for extension o f time on 12/03/2010. The present application was filed on 23rd o f March, 2010, which is 11 days later from the date o f collecting the copy o f the ruling. From this explanationr there is no single paragraph to account, for the two weeks between obtaining the copy o f the decision/ruling on review and the filing o f the application for extension o f time in the high court. But there is also no explanation for the delay o f 11 days, between the date o f obtaining a copy o f ruling dismissing the application for extension o f time by the High court, and the day the present application was filed. This, in may reckoning, makes, a total o f 25 days un-accounted for, and I cannot ignored it. The applicant diligence is therefore cdlled in question, but the conclusion that the applicant has not fully accounted for all the period o f delay is inescapable." The requirement of accounting for ever day of delay has been emphasized by the Court in a numerous decisions, examples are such cases of Bushiri Hassan Vs. Latifa Lukio, Mashayo,Civil Application No. 3 of 2007 (unreported) and Karibu Textile Mills Vs. Commissioner General (TRA), Civil Application No. 192/20 of 2016 (unreported). In the Bushiri Hassan case, the Court stated: "Delay o f even a single day, has to be accounted for otherwise there would be no proof o f having rules prescribing periods within which certain steps have to be taken." From the reasons advance by the applicant, I find that they have not shown good cause and accounted for the delay to the standard required. Applicant counsel Mr. Yohana Michael has raised issued of having few state attorneys to attend all the cases but government has an interest. With due respect, this are pure administrative affairs of the applicant. Neither can amount to sufficient cause, nor is it respondent business. The above not * withstanding applicant alleges illegality of decision for lack of CMA jurisdiction to determine the dispute. The issue of illigality was also considered in the case of Tanesco Vs. Mufungo Leonard Majura and 15 others, Court of Appeal Civil Application No. 94 of 2016, (unreported), where it was stated: "Notwithstanding the fact that, the applicant in the instant application has failed to sufficiently account for the delay in lodging the application, the fact that, there is a complaint of illegality in the decision intended li to be impugned ... suffices to move the court to grant extension of times so that, the alleged illegality can be addressed by the Court." On Illigality complained by applicant at paragraph 7, same was replied by respondent at paragraph 6 of his affidavit when hesaid, as thequestion regarding its jurisdiction with respect to the respondents referral had already been determined by the Commission for Mediation and Arbitration Dar Es Salaam Zone through its ruling dated the 23rd of May, 2016. There is no dispute that issue of jurisdiction to hear the current dispute at CMA is an issue to be discussed in an intended revision. What applicant seeks is right to be heard on an intended revision. Right to be heard was insisted in the case of Ridge Vs. Baldwin [1963] 2 All ER 66, where it was insisted that the consequence of the failure to observe the rules of natural justice is to render the decision void and not voidable. Despite there being no sufficient cause for the delay, there is no counting of each day pass beyond time fixed, illegality averred at paragraph seven(7) of Mr. Benson Hossea affidavit and admitted by respondent at paragraph six (6) of his affidavit, suffice to move this court to grant extension sought. Accordingly application for extension of time is granted, intended revision to be filed within fourteen days from today. Z.G.Muruke JUDGE 30/04/2020 12 Ruling delivered in the presence of Benson Hossea, State Attorney and Esther Meiludie for the applicant and Endrew Miraa, Leaned Counsel for the respondent and respondent himself. ,, Z.G.MQaike^ JUDGE 30/04/2020 13