20140731 TZHC Dar es Salaam

IN THE HIGH COU.RT OF TANZANIA

LABOUR DIVISION

I

AT DAR ES SALAAM ) REVISION NO.209 OF 2013 BENSON INFORMATICS LIMITED .. ~ .................. APPLICANT

VERSUS PIUS W. MTEI .................... ~ ..............•........... RESPONDENT · (Original/ CMA/DSM/KIN/983/11/918)

JUDGEMENT 11/6/2014 &18/7/2014 Aboud,J The application is made under section 91(1) (a) and (2) (b), 94 (1) (b) of the Employment and Labour Relations Act, No.6 of ' 2004 and Rule 24 (1) (2) (3), 28(1) (a)-(e) of the Labour Court Rules, GN No. 106 of 2007. The applicant cans upon this court to revise and quash the award of the Commission for Mediation and Arbitration (CMA) by P. Ngowi, Arbitrator in Labour Dispute with Reference No. CMA/DSM/KIN/983/11/918 dated on 14/12/2012. The application is supported by the affidavit of Daniel Baitwababo. 1 I The respondent was an employee of the applicant on fixed ' term contract of one year since 1/12/2009. 9n 30/08/2011 he received termination letter on ground of lapse of contract period. The respondent was not satisfied with his termination, thus he referred the dispute of unfair termination to the CMA claiming payment of five (5) years salary, as compensation and severance payment for seven (7) years of his service. In his decision the l Arbitrator decided that the respondent's termination was unfair and ordered the applicant herein to reinstate the respondent , according to section 40 (1) (a) of Employment and Labour Relations Act and to pay the respondent Tshs. 11,479,360/= as arrears of his salary from 30/11/2011 to the date of the award. The applicant was aggrieved by· the arbitrator's decision and award in the matter and now seeks

for revision. At the hearing both parties were represented, the applicant was represented by Mr. Daniel Baitwababo, Advocate while the respondent was. represented by Mr. Damas Mwagange, Advocate. Having perused the records the court suo motu raised a point of law that the application is hopelessly time barred and ordered parties to submit on the point of objection. 2 Arguing ~he point of objection Mr. Daniel, Advocate for the applicant submitted that he filled an application for revision No. 31 of 2013 within time. However it was struck out by Sarwat, Deputy Registrar (DR) on 19/08/2013 on ground of defective attestation with leave to file afresh within seven days. He submitted that the DR, exercised her power~ granted under Rule 7 (5) of the Labour Court Rules, GN.106 of 2007. On the other hand Mr. Damas, Advocate for the respondent submitted that, the application was filed on 20/8/2013 which is 12 months from the date of the CMA award contrary to Section 91 (1) (a) (b) of the Employment and Labour Relations Act. Regarding the application No.31 of 2013 which was·' struck out· ' by the DR, Mr. Damas submitted that there is no such record in the court proceedings, therefore it remain to be hearsay which ought to be proved by the applicant. He further submitted that the DR, had no jurisdiction to struck out and order the matter to be filed afresh, according to Rule 7 (5) of the

Labour Court Rules the DR's power is limited to request the applicant to correct the pleadings. He submitted that the applicant was supposed to apply for extension of time to file afresh application after he withdrew his former application. Before I proceed let me say while I was preparing this decision the applicant filed on 20/7/2014 what he purported to be a drawn 3 order by Hon. Sarwat, DR dated 19/8/2013. Having gone through .~ ~ - ~ I • 11 • parties submissions it is clear to me that the present application was filed out of the prescribed time as provided under Section 91 (1) (a) (b) of the Employment and Labour Relations Act which will be referred as the Act in this decision. I have considered the applicant's contention that he filed an application No. 31/2013 which was withdrawn by the DR who ordered him to file a fresh one within seven days. As I said I have seen the order by Hon. Sarwat, DR of 17/8/2013 which unfortunate was not contested by the respondent as he was not saved. However, I did focus to the point to be determined that whether the withdrawal order with leave to re~file by Hon. DR was legally made. In other words if such DR's order has legal basis to be positively considered by the court. The position of the law is clear as reiterated by the Court of Appeal in the case of Loswaki Village Council and Another VS. Shibesh Abebe, Civi/Application No.23 of

1997, {CAT} .. at Arusha, where the court held that; "Those who seek the aid of the law by instituting proceedings in a cou,t of justice must file such proceedings within the period prescribed by the law and that those who seek . 4 t the protection of the Jal in a court of jus_tice must demonstrate diligence." I .. - . ..,. . Basing on the authority above the applicant ought to have filed his application within six weeks from the decision of the CMA I as provided in section 91 (1) (a) (b) of the Act. As regard tq the application which is purported to be struck out by the DR, I agree with the respondent. that the purported order was wrongly made since the DR. does not have jurisdiction to give such order. The powers of the Registrar as provided under Rule 7 (5) of the Labour Court Rules is limited only to request the ·applicant to correct pleadings. It provides that, I quote; "Rule 7 (5)-The Registrar may request a party to correct any apparent defect or error in any document that is filed." The Rules continue to provide under Rule 7 (6) of the Labour Court Rules that, I quote; ·. "Rule 7(6)- Subject' to subrule (5), the Registrar shall for.ward the document to a Judge in chamber for directions where a ' ' party has refused to correct any document after such a request by the registrar." 5 It is my view that where applicant found that his application need to be withdrawn when is

before the Registrar or DR for the purpose of correction he can do that and is at liberty to come back to correct, in other words file another application if he wishes to do so and the time limit to file such application is still on his favour. Registrar or DR has no powers to grant leave to re- , ........ 4,-h "· • . file a withdrawn application if it will be re-filed out of time. It has to be noted that when the_ application is not yet before the Judge In charge ready for assigning a presidirig judge, such application is considered not to be before the court, but is still on preliminaries when can be corrected or withdrawn as the applicant in this matter did without seeking any order of the court. Questions may arise why I am saying at· that stage the application is regarded not to be before the court? I find it prudent to define what is the court? Section 4 of the Employment and Labour Relations Act defines Labour Court as; "labour Court means the Labour division of the High. Court established under section 50 of the Labour Institutions Act, 2004" Section 2 of the Labour Institutions Act define the court that; ... .... ~ ~ "'. - 6 "Labour Court means the Labour division of the High C~urt established in accordaJce with the provisions of section 50; labour laws" in!ludes . ' this Act and any other written law in respect of which the Minister is responsible." According to

section 50 (1), (2) (a) of the Labour Institutions Act, the Labour court consists of Judges and Assessors if any. It provides, I quote; "Section 50 (1) - there shall be established a labour court as a division of the High Court. (2) The Labour Court shall consist of- - (a) such number of judges as the Chief Justice · may consider necessary, ·one of whom designated by the Chief Justice as "Judge In-Charge" who shall head the Labour Court and shall designate any Judge to be in charge of any court zonal center." ~- ,.,. . ... , ,_ ..-:;- (b) two panels of assessors appointed in terms of section 53. On the other hand section 54 (1),. (2) of the Labour Institutions Act provides that; (1) There shall be a Registrar of the Labour Court appointed by the Chief Justice who shall be the Chief Executive Officer of the Labour Court and 7 I - who shall, subject to this Act, be answerable to the Judge In-Charge. (2) There sh_a,1 be Deputy Registrars of such number as shall be determined and appointment by the Chief Justice. , Basing on the above provisions of the law it is clear that the Labour Court to be properly constituted it must consist of a presiding Judge and Assessors if any. And that the Registrar or DR. is the Executive Officer of the. Labour Court whose powers are · . . stipulated under Rule 7 of the Labour Court Rules as discussed above. The Registrar and DR of this court also

have powers of execution like any other Registrars and DR in the High Court such powers are specified under Order XXI and Order XLIII (1) (f) to (k) of the Civil . Procedure . Code (Cap. 33 RE 2002), read together with Rule 48 (3) of the Labour Court Rules, GN. 106 of 2007. It is . the position of this· court in the case of George Mapunda & another Vs. Dawasco, Misc. Revision No. 1 of 2014, High Court Labour Division, Dar es Salaam (Unreported), that the legal powers of the Labour Court Registrars includes enforcement or execution of decision of the . . court, the Labour Commissioner the CMA or any other bodies authorized to have its decision enforced by the court. This is also 8 """-·. ' •'•. the position in law as provided under Section 87 (4) and 89 (2) of the Act, Section 54 of the Labour Institutions Act, No. 7 of 2004 read together with Rule 48 (4) of the Labour Court Rules, GN 106 of 2007. ·T~e law under Rule 56(1)' of the Labour Court Rules provides clearly that:- "The court may exter:td or abridge any period prescribed by these rules on application and on good case shown, unless the court is precluded from doing so by any written law." According to the above provision the power to extend time is solely given to the court and not the Registrar or DR. Basing on the position of the law above it is clear that the Hon. DR wrongly exercised her power when grated the

applicant time to file the application afresh after it was withdrawn. Powers of the Registrar and DR's are limited to functions as discussed above. Therefore the order purported to _be given by the DR. as alleged by the applicant with no hesitation I say it does not legally exist, it is a nullity because the DR's powers extended b beyond those given by the law. Hence this co~rt cannot rely on it to proceed with the present application. 9 Under the circumstances this court finds that the application at hand is time barred therefore it cannot entertain the same. In fact the court lacks jurisdiction to entertain it. In the result this . application is hereby dismissed. It is so ordered. I.D.ABOUD

JUDGE 31/7/2014 10 ., Date: 31/7/2014 Coram: Hon. I.D. Aboud, J Applicant: Absent For Applicant: Mr. Daniel Baitwababo, Advo~ate Respondent: For Respondent: Damas, Advocate CC: J. Kalolo Order: Ruling delivered on 31/7/2014 in the presence of Mr. Daniel Baitwababo, Advocate for the Applicant and Mr. Damas, Advocate for the respondent. I.D. Aboud

JUDGE 31/7/2014 11 ., ·- _.,;