benedicto sb mahela vs tanzania bureau of standards 2020 tzhcld 11 30 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 632 OF 2019 BENEDICTO S.B. MAHELA.......................................APPLICANT VERSUS TANZANIA BEREAU OF STANDARS.....................RESPONDENT RULING Date of last Order: 05/03/2020 Date of Ruling: 30/03/2020 Z.G.Muruke. J Benedicto S.B Mahela filed present application for extension of time to file revision. Application is supported by applicant affidavit of which relevant paragraph read as follows: 2.4 That on 27th day of November, 2017 the arbitrator entered an award in regards of the complaint in favour of the respondent which was availed to the applicant on 4th August, 2018. 2.5 That being dissatisfied by the said award the applicant filed revision NO. 532 of 2018 which was struck out by this Honourable court on 24th June, 2019. 2.6 That on 12th July, 2019 the applicant filed Misc. Application No. 425 of 2019 seeking leave of the court to file revision of the said CMA award out of time which was struck out by this Honourable Court on 30th September, 2019 for being defective. l 2.7 That both the application for revision and application for extension of time being struck out the applicant is out of time to file another application for revision hence this application for extension of time that the applicant be allowed to file revision out of time. Respondent on the other hand, filed counter affidavit sworn by Lucy Paul Mallya respondent legal officer in which at paragraph 7 replaying the content of paragraph 2.4, 2.5,2.6 and 2.7 of applicant affidavit read as follows:- That the contents of paragraphs 2.4,2.5,2.6 and 2.7 are noted to the extents that, the application for revision and application to file revision out of time were struck out, the rest of averments are denied. The respondent stated that, the said applications were struck out due to gross negligence of the applicant's advocate. On the date set for hearing, Mr. Nehemia Gabo represented applicant while Alice Mtulo, Peter Msechu and Lucy Mallya represented respondent. By consent hearing was conducted by way of written submission. Applicant counsel submitted along lines of his client affidavit. He amplified paragraph 2.2 to 2.8. in essence he narrated how applicant incompetent revision and application were delt with by this court. Respondent counsel, Alice Mtulo, State Attorney seriously submitted on applicant negligence in filing incompetent revision and application. She 2 blamed applicant counsel for negligence in handling his client case. In essence, Learned State Attorney, requested the court not to grant extension sought, because there is no sufficient cause shown apart from applicant counsel self-induced negligence. 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 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 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. From the affidavit of both parties following facts are not disputed. (i) Applicant filed 1st application, revision number 532/2018 that was struck out on 24th June, 2019. 3 (ii) Applicant filed Misc. Application 425/2019 on 12th July, 2019 that was struck out for incompetence by this court on 30th September, 2019. (iii) Applicant filed present Misc. application number 632/2019 on 22nd October, 2019 for extension of time, to file revision. From the above facts not in dispute it is clear that, applicant has been in this court for almost two years pursuing named revision and application at different times, that ended being struck out for incompetence. For all two years of filing incompetent application, mediator Benedictor has just narrated how his incompetent application were dealt with by this court at different times. Does filing incompetent application amounts to sufficient cause to justify extension? To the best of my understandings in deciding whether or not to allow an application to file revision out of 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 revision, sought. 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" 4 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: (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 o f prejudice to the defendant if time is extended. " Equally, in the case of Blue line Enterprises Ltd Vs. East African Development Bank Misc. Civil Cause No. 135/1995 where Katiti, J held that:- 5 "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 was started as follows:- 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. A part from the series of filing application, and being struck out, there is no counting of each day passed beyond six weeks from the date applicant served with copy of the award. Applicant first revision application number 532 of 2018, was struck out for incompetence on 24th June, 2019. From the date revision struck out to the date of filing, Miscellaneous Application number 425/2019 is a period of 18 days. There is no accounting of even 18 day's passed before filing Misc, application number 425/2019. Equally, Misc. Application No. 425/2019 was struck out on 30/09/2019 for being defective, and present application was filed on 22nd October, 2019. From 30th September, 2019 to 6 22nd October ,2019 it is a period of 21 days, which has not been counted for by applicant. In an application for extension of time, each dav passes beyond prescribed time counts and has to be counted for. What applicant has shown in his affidavit from paragraph 2.4 - 2.6 is pure and simple negligence by the applicant counsel. It has been held time out of number, ignorance of law has never featured as good cause for extension of time. It is worth noting that a diligent and prudent party who is not properly seized of the applicable procedure will always ask to be apprised of it, for otherwise he/she will have nothing to offer as an excuse for sloppiness. In the application like this one, the court must also look into the reasons for the delay. Whose negligence is responsible for the delay? How much time has toiled since the decision seeking to be revised against was given until now? The answers are clear. It was applicant's counsels negligence in getting numerous applications to be struck out as correctly submitted by Learned State Attorney Alice Mtulo assited by Lucy Mallya for the respondent. This application is being brought after an inordinate delay. The applicant has come to the court seeking permission to file revision out of time. The revision and application were struck out because of the applicant's counsels self-induced negligence. To the best of my understanding the relief that the applicant is seeking are equitable in nature. Therefore, this court should consider also the clean hands Doctrine in determining the merit of the applicant's flawed applications. The clean hands Doctrine precludes a party who is seeking equitable relief from taking advantages of his/her own wrongs. 7 In the Misc. Civil reference No. 14 of 1998 between Alison Xerox Sila Vs. Tanzania Harbours Authority. Court of Appeal (unreported’) held that: "Lapses, inaction or negligence on the part of the applicant seeking extension of time, does not constitute sufficient cause to warrant extension of time under Section 14(1) of the Law of Limitation Act Cap 89 RE 2002." Indeed, it is my view that applicant case does not only demonstrate lack of seriousness and diligence, but also gross negligence on the part of the counsel for the applicant in handling the affairs of his client. In the case of William Shija Vs. Fortunatus Masha 1997 TLR 213 the Court of Appeal held that negligence on the part of the counsel who caused the delay cannot constitute sufficient reason. Unfortunately, it is the acts and omission of the applicant that has delayed the wheels of justice. Respondent should not be unfairly treated because of applicant counsel's negligence. To permit the applicant, another extension sought would neither be just, expeditious, economical, nor in the interests of justice. From the records it is clear that the respondent as financial institution is prejudiced by the ongoing negligence of the applicant's counsel. To this court, applicant was doing trial and error, for two years. Thus, there is no sufficient cause shown for this court to extend time to file revision. Accordingly application for extension of time is dismissed for lack of sufficient cause. Z.C JUDGE 30/03/2020 Ruling delivered in the presence of Jovin Tembo holding brief of Nehemia Gabo for the applicant and in the presence of Lightness Msuya assisted by Lucy Mallya, State Attorney for the respondent. Z.G.Nuruke JUDGE 30/03/2020 9