BARAKA MOHAMED V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 21841 OF 2024 (Arising from Award issued on 4/7/2024 by Hon. Mollel, B.L, Arbitrator, in Labour Dispute No. CMA/DSM/KIN/194/2024 at Kinondoni) BARAKA MOHAMED……………………..………………………... APPLICANT VERSUS AFRICA HEALTH CARE NETWORK……................................... RESPONDENT RULING Date of Last Order: 28/10/2024 Date of Judgment: 31/10/2024 B. E. K. Mganga, J. Brief facts of this application are that, on 9th June 2021, Baraka Mohamed, the herein applicant was employed by Africa Health Care Network, the herein respondent, as supply chain Manager. On 15th December 2022, respondent terminated employment of the applicant. Aggrieved with the said termination, on 13th January 2023, applicant filed Labour dispute No. CMA/DSM/ILA/41/2023/54/2023 before the Commission for Mediation and Arbitration (CMA) at Ilala complaining that respondent terminated his employment unfairly. On 27th April 2023, while the dispute has passed mediation stage, applicant prayed to amend the nature of the dispute from unfair termination to breach of 1 Contract. The prayer by the applicant was granted as a result, parties proceeded to the hearing stage without mediating the dispute of breach of contract. On 4th December 2023, Hon. Ngwashi, Y, arbitrator, having heard evidence of the parties, issued an award that termination was fair both substantively and procedurally consequently dismissed the dispute for want of merit. Applicant was aggrieved by the CMA award as a result, he filed Civil Application No. 28331 of 2023 before this court challenging the said award. I should point out albeit briefly that, applicant was supposed to file the said application as Revision application and not as Civil Application. On 22nd March 2024, this Court (Hon. Mlyambina, J) having heard submissions of the parties held that, (i) the dispute relating to breach of contract was not mediated contrary to the provisions of section 86 of the Employment and Labour Relations Act[Cap. 366 R.E. 2019] and (ii) was filed out of the 60 days provided for under Rule 10(2) of the Labour Institutions (Mediation and Arbitration)Rules, GN. No. 64 of 2007, consequently nullified CMA proceedings, quashed and set aside the award. It is undisputed by the parties that, after the decision of this Court in Civil Application No. 28331 of 2023 that nullified CMA proceeding on ground that the dispute of breach of contract filed by the applicant at 2 CMA in Labour dispute No. CMA/DSM/ILA/41/2023/54/2023 at Ilala for being time barred, applicant filed an application for condonation in Labour dispute No. CMA/DSM/KIN/194/2024 at Kinondoni complaining that respondent breached his contract of employment. On 4th July 2024, Hon. Mollel, B.L, Arbitrator, having considered evidence of the parties in the affidavit in support of the application for condonation and the affidavit in opposing condonation and respective submissions, dismissed the application for condonation for want of merit. Untiringly, being aggrieved with the ruling that dismissed the application for condonation, applicant filed this revision application seeking the Court to revise and quash and set aside the CMA ruling and allow the parties to go back to CMA so that the dispute relating to breach of contract can be heard on merit. Respondent resisted the application by filing the Notice of Opposition and the Counter affidavit. When the application was called on for orders, having gone through the CMA record and appraised myself with the above facts, I asked the parties to address the court whether, CMA had jurisdiction over the matter after this court has held that the dispute relating to breach of contract was time barred hence this ruling. Responding to the issue raised by the Court, Mr. Peter Majanjara advocate for the applicant, in the first place admitted that this court 3 (hon. Mlyambian, J) had already issued a ruling that the dispute that was filed by the applicant relating to breach of contract was time barred. Counsel further submitted that; a time barred matter is liable to be dismissed. He further submitted that, the term dismissal under section 3 of Cap. 89 R.E. (supra) should not be read to mean dismissal as the matter was heard to its finality or merit but it should read to mean the matter is struck out. Counsel added that, the effect of filing the case out of time is that, the court has no jurisdiction. He went on that, if the court has no jurisdiction, the matter should be struck out and not dismissed. Mr. Majanjara further submitted that, the effect of striking out the matter is that, the same matter can be refiled subject to Law of Limitation which is why, applicant filed an application for condonation. He was quick to submit that, section 14 (1) of the Law of Limitation Act [Cap. 89 R.E. 2019] allows the court to extend time. When probed as whether it was proper for the applicant to file an application for condonation after this court has held that the dispute relating to breach of contract was time barred, he readily conceded that it was not. With that concession, counsel for the applicant prayed the Court to nullify CMA Proceedings, quash and set aside the ruling because CMA had no jurisdiction. 4 Responding to the issue raised by the Court, Mr. Pascal Mugisha, advocate for the respondent, submitted that, CMA had no jurisdiction to entertain the application for condonation after this court has held that the dispute was time barred. With that brief submission, he joined counsel for the applicant in praying the Court to nullify CMA Proceedings, quashing and setting aside the ruling arising therefrom. I have considered submissions of the parties and without much ado, I entirely agree with them that, CMA had no jurisdiction to entertain the application for condonation of the dispute of breach of contract which, on 22nd March 2024, this court held that it was filed at CMA out of time. In Civil Application No. 28331 of 2023 mentioned herein above, this court (Mlyambina, J) held that:- “As clearly stipulated above, the limitation for filling disputes for unfair termination is 30 days while the time limit for filing disputes concerning breach of contract is 60 days. As rightly conceded by both parties, initially, the applicant referred the dispute at the CMA concerning unfair termination. the amended form indicates that the cause of action arose on 15/12/2022 while the dispute of breach of contract was filed on 27/04/2024 without proper extension of time. Thus, the same was filed out of time and the CMA lacked jurisdiction to entertain the same.” It is my considered opinion that, once a matter is found to have been time barred, as it happened in the application at hand after the court holding that the dispute of breach of contract that was filed by the 5 applicant was time barred, the parties cannot thereafter, file an application for condonation or extension of time for CMA to cloth itself with jurisdiction to determine it. My afore conclusion is fortified by what was held by the Court of Appeal in the case of Ali Shabani & Others vs Tanzania National Roads Agency (tanroads) & Another (Civil Appeal No. 261 of 2020) [2021] TZCA 243 (10 June 2021), Ally Rashid & Others vs Permanent Secretary, Ministry of Industry & Trade & Another (Civil Appeal 71 of 2018) [2021] TZCA 460 (6 September 2021) and of Sarbjit Singh Bharya & Another vs Nic Bank Tanzania Ltd & Another (Civil Appeal 94 of 2017) [2021] TZCA 212 (25 May 2021) to mention but a few. In Rashid’s case (supra) the Court of Appeal held inter- alia that:- “We must observe here that the allegation that a particular action is barred by limitation based on statute, is an issue of jurisdiction, and section 3(1) of the LLA (quoted above) provides that where an issue of limitation is raised, determined and upheld, the matter must, in all cases be dismissed. In the present appeal, when the issue of law was heard, it was found to be meritorious and the case was dismissed because it had been filed out of time. That way, it was rendered impossible for the trial court to embark on determining issues of fact in a case which had just been dismissed.” In Bharya’s case (supra) the Court of Appeal held inter-alia that:- “…The Court has pronounced itself in numerous cases involving time bar. For instance, in the case of Hezron M. Nyachiya v. Tanzania Union of 6 Industrial and Commercial Workers and Another, Civil Appeal No. 79 of 2001 (unreported), the Court emphasized that under section 3 (1) of the Law of Limitation Act, the consequences for any proceedings instituted out of time without leave of the court is dismissal whether or not limitation has been set up as a defence. The effect of an order for dismissal is that it connotes that the matter has been concluded - see Ngoni - Matengo Corporation Marketing Union Ltd v. Ali Mohamed Osman, [1959] E.A. 577. Besides that, if the matter is dismissed, the party cannot come back on the same matter to the court - see VIP Engineering and Marketing Ltd v. SGS Generalle De Surveillance SA and Another, Civil Reference No 32 of 2006; and Cyprica Mamboleo Hizza v. Eva Kioso and Another, Civil Application No 3 of 2010 (both unreported).” In the case of Barclays Bank T. Ltd vs Jacob Muro (Civil Appeal 357 of 2019) [2020] TZCA 1875 (26 November 2020) which is a labour case similar to the application at hand, the Court of Appeal held inter-alia that: - “We are therefore constrained to hold that the respondent’s complaint to the CMA made on 22nd April, 2014 was time barred and that CMA had no jurisdiction to take cognizance of the matter … Since the CMA acted without jurisdiction as the referral was time barred, we nullify its proceedings as well as it award.” The above quoted cases of the Court of Appeal has nailed this application to the fullest. I should point out, albeit briefly that, applicant and his counsel, were fully aware of the correct position of the law, which is why, after the ruling of this Court (Hon.Mlyambina, J) in Civil Application No. 28331 7 of 2023, that arose from the dispute that applicant filed at CMA Ilala, he left CMA Ilala Jurisdiction and file an application for condonation at CMA Kinondoni, the subject of this ruling. It is my view that, applicant filed the application for condonation at CMA Kinondoni in abuse of court process. I therefore, cordially but strongly, advise both the applicant and his counsel that, they should, from now and onwards, desist from such conducts. For the foregoing, I hereby nullify CMA proceedings, quash and set aside the ruling arising therefrom. Dated at Dar es Salaam on this 31st October 2024 B. E. K. Mganga JUDGE Ruling delivered on this 31st October 2024 in Chambers in the presence of Peter Majanjara, Advocate and Paschal Mugisha, Advocate for the Respondent. B. E. K. Mganga JUDGE 8