REVISION APPLICATIONI NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT ARUSHA REVISION APPLICATION NO. 62 OF 2023 (Originating from Labour Dispute No. CMA/ARS/ARS/210/23) BONIFACE THOMAS MWIMBWA............................ APPLICANT VERSUS CRDB BANK PLC...................................................... RESPONDENT JUDGMENT 03rd June & 5th July 2024 Masara, J The Applicant herein was an employee of the Respondent in the position of Branch Manager, Meru Branch, Arusha. The Applicant was suspended by the Respondent on the allegation of misconducts associated with the criminal charges that faced him. Although he was convicted of the charges, he was later discharged by the Court of Appeal of Tanzania. After that decision, he sought to be reinstated by the Respondent but got no response. The Applicant, being aggrieved by the respondent's decision, he opted to challenge the same before the Commission for Mediation and Arbitration, Arusha ("the CMA"). Page 1 of 23 As time for challenging the decision had since elapsed, the Applicant filed an application for condonation via Dispute No. CMA/ARS/ARS/210/23 requesting for leave to refer the dispute to CMA out of the statutory time. Hearing of the matter before the CMA proceeded was ordered to proceed by way of written submissions. However, the Applicant did not file his submissions on the date directed by the CMA. The Respondent, on the other hand filed its submissions challenging the plea of condonation by the Applicant. The CMA after considering tne Applicants application as well as the submission made by the Respondent was satisfied that the Applicant failed to adduce sufficient reasons for the grant of a condonation order. It therefore dismissed the Applicant's application. Aggrieved by the aforesaid decision, the Applicant preferred this Application for revision under the provisions of Section 91(l)(a) & (b), (2)(b) & (c) 91(4)(a) & (b) and 94( 1 )(b)(i) of the Employment and Labour Relations Act, Cap. 366 [R.E 2019], Rules 24(1), (2)(a), (b), (c), (d), (e) & (f) and 24(3)(a), (b), (c) & (d), of the Labour Court Rules, G.N. No. 106 of 2007. The Applicant prays for Court to be pleased to call for and examine the record of the CMA for the purpose of satisfying itself on the correctness, legality or propriety of the proceedings and orders made thereto and Page 2 of 23 revise and set aside the said proceedings and ruling of the CMA dated October 13th, 2023. The Applicant's grounds as spelt out in the affidavit in support of the Application are as follows: 1. That, the Commission erred in law and fact in not considering the fact that the applicants delay was caused by the reasons that, the applicant was facing a criminal session case No. 77 of2007 before the High Court and Criminal Appeal No. 325 of 2019 at the Court ofAppeal and the criminal charges were raised by the Respondent for being employment misconduct. 2. That, the honourable Arbitrator grossly erred in law and fact for making decision without regard to the principle of natural justice to proceed on determining the application without affording the applicant with the right to Tile his submission. 3. That the arbitrator erred in law and fact by failing to consider that facts and evidence adduced as a result he pronounced and erroneous decision. 4. That, the ruling of labour Dispute is bad in law for failure to i) Acknowledge the fact that the Applicant was remanded in prison and finally jailed for the last 12 years for employment oriented criminal charges raised by the Respondent. Thus, even if the Applicant was pardoned on release still criminal charged were not cleared against him so he could not rush into commission before the final verdict was pronounced. Page 3 of 23 ii) Acknowledge the fact that the time he was suspended he used to report to his employer until he was remanded in prison and finallyjailed and that there was no period in time, he could have filed a complain. Further his salary was cut off soon after he was remanded in prison. Such ambivalent allegories were result of not affording the Applicant a chance to defend himself Hi) Honourable Arbitrator grossly erred in law and fact to proceed in determining the respondent reply written submission without written submission from the applicant. When the matter was called for hearing, which was by way of written submissions, Mr Frank Wilbert, learned advocate, appeared for the Applicant and submitted in support of the Application. The Respondent, on the other hand, was represented by Mr Silwani Galati Mwantembe, learned advocate, who submitted against the Application. Before submitting on the merits of the Application, Mr Wilbert sought to challenge the Notice of Opposition and Counter Affidavit filed by the Respondent on the grounds that the same was filed out of time contrary to Rule 24(4)(a) of the Labour Court Rules, G.N No. 106 of 2007 which prescribes that a Respondent should file those documents within 15 days of the service of the Application. That as the Respondent was served on 16th February 2024 but filed the Notice of Opposition and the Counter Page 4 of 23 Affidavit on 04th March 2024, then the counter affidavit ought to be struck out for being filed out of the prescribed time. Responding to the submission made by the Applicant regarding the filling of the counter affidavit and the notice of opposition out of time, Mr Mwantembe did not contest the fact that the Application was served on the Respondent on 16th February 2024. He, however, did not agree that the counter affidavit was filed on 4th March 2024 as alleged. He submitted that the notice of opposition and the counter affidavit were filed online on 28th February 2024 and that the matter being a labour dispute there was no any requirement to pay filling fees. That the date that appeared on the top of the documents, that is 4lh March 2024, is the date that the hard copies of the notice of opposition and counter affidavits were presented to the court registry. Referring to Rule 10(5) of the Judicature and Application of Laws (Electronic Filing) Rules, 2018, G.N No. 148 of 2018, Mr Mwantembe submitted that a document is dully filed when it is filed online. He further urged this Court to consider that their office is located at Mwanza, hence not practically possible to present the hard copies on the same date when the same is filed online. He therefore prayed that the same be regarded Page 5 of 23 as having been filed on time as per Rule 24(4)(a) of the Labour Court Rules, G.N No. 106 of 2007. Having considered the arguments made by Counsel of the parties, I will, as is the norm, determine whether the preliminary issue raised by Counsel for the Applicant has merits. Whereas the Applicant's Counsel submits that the counter affidavit was filed after the expiry of the 15 days required by law, Counsel for the Respondent urges the Court to look into the online records to determine when exactly the said documents were duly filed. That the counter affidavit and the notice of opposition were filed on 28 February within the 15 days prescribed by the Rules. It is true that the hard copies of the notice of opposition and counter affidavit were stamped as having been received on 4th March 2024. The electronic record supplied, however, show that the documents were lodged online on 28 February 2024. The issue for determination is which date should be taken to be the date of filing. The Judicature and Application of Laws (Electronic Filling) Rules, 2018, G.N No. 148 of 2018 is the law governing electronic filing of court documents. According to Rule 21 thereof, a document which has been filed through an electronic filling system is considered to be filed in court on the date it was so filed. It has been a long-standing practice that after Page 6 of 23 lodging a document electronically, a party has to file a hard copy as well. Unlike other cases where filing is proved upon effecting payments, labour matters are an exception as there is no requirement of payment of court fees. If court fees were to be paid on the alleged documents, then the date of payment of court fees would be regarded as the date of filling the document in court, irrespective whether the same has been filed electronically on time or not. In the rejoinder submissions, Counsel for the Appellant challenged the authenticity of the electronic document relied upon by the Respondent and urged the Court to examine whether or not the electronic records hosted by the judiciary proves the respondent's assertion. That was done. Upon perusal of the Court management system, it is true, as the Counsel for the Respondent stated that the documents were electronically filed on 28 February well within the time limit of filing such documents. The objection, therefore, lacks merit and is accordingly overruled. Having determined the preliminary issue raised, I now turn to consider the arguments made by the parties on the merits of the Application. Submitting in support of the Application, Mr Wilbert informed the Court that in the year 2011 the Applicant was suspended from his employment pending criminal investigation. He was later charged and convicted by the Page 7 of 23 High Court for 5 years. He appealed against the conviction and sentence to the Court of Appeal. Pending hearing, in the year 2022, the Applicant was pardoned by the president. That after his release following the pardon, he wrote to his employer asking for the fate of his employment but received no response. Fortunately, the Court of Appeal delivered its decision in Criminal Appeal No. 325 of 2019 allowing his appeal and quashing the conviction and sentence against him. Following that decision, the Applicant wrote two letters to the Respondent on his intention to go back to work in vain. It was the learned advocate's position that the Applicant's application for condonation was merited as he was prevented from pursuing his rights on justifiable grounds. He cited section 37(5) of the Labour Relations Act, Cap. 366 [R.E 2019] and Rule 27(5) of G.N No. 42 of 2007 which state that "no disciplinary action in form of a penalty, termination or dismissal shall He upon an employee who has been charged with a criminal offence which is substantially the same until final determination by the court and any appeal thereto He also stated that Article 13(6)(b) of the Constitution of the United Republic of Tanzania provides that a person is presumed innocent of an offence unless proved guilty by a court of law. Basing on that fact, the Page 8 of 23 Applicant stated that, he could not have preferred the matter before the CMA unless his criminal charges were determined to finality. Counsel for the Applicant submitted further that, on 10lhJuly 2023 the Applicant's advocate, one Innocent Mwanga, wrote a letter to the CMA withdrawing his instruction to represent him without notifying the Applicant or the Respondent. That when the matter was called for mention on 21 July 2023, the Applicant became aware of the withdrawal and that the Respondent had also filed submissions in reply. It was then that he wrote a letter requesting for time enlargement for him to file his submission in chief, the prayer which was rejected by the CMA which proceeded to determine the application on merits notwithstanding that the Applicant had not filed his submissions. The Advocate for the Appellant submitted, therefore, that failure of the CMA to consider the Applicant's prayer was unfair and amounts to a violation of one of the principles of natural justice, the right to be heard. For this, reference was made to the Court of Appeal decision in Mbeya- Rukwa Auto Parts and Transport Limited vs Jestina George Mwakyoma [20031 TLR 251 which was cited with approval in the case of Pili Ernest vs Moshi Musani, Civil Appeal No. 39 of 2019. Page 9 of 23 Submitting on the third ground of revision, the Applicant's Advocate stated that the Applicant is aggrieved by the CMA's decision which failed to consider that the delay to refer the matter before it was as a result of the criminal litigation against him. That, the Applicant attached before the CMA a decision in Criminal Session case No. 77 of 2017, in which the Applicant was imprisoned for 5 years in 2019, and the Applicant's appeal to the Court of Appeal in Criminal Appeal No. 325 of 2019 which acquitted him of the offences he had been convicted of. The Applicant's Advocate conferred, therefore, that this Court is vested with jurisdiction to adjudicate the matter as per the Court of Appeal decision in Kalunqa and Company Advocates vs National Bank of Commerce Limited [2006] TL.R 235. Basing on the strength of the submission made, he prayed that the Application be granted. In rebuttal, the Respondent's Advocate stated, apriori, that the current Application aims at revising the CMA decision made in the application for condonation initiated by the Applicant and that the matter is not before this Court for hearing of condonation as can be garnered from the supplementary affidavit filed by the Applicant which appear to be expounding on the reasons for the late referral of a dispute before the CMA. Page 10 of 23 On the reasons for late referral of the dispute before the CMA, it was the Advocate's submission that he did not dispute that the Applicant was prosecuted before the High Court, convicted and there after appealed to the Court of Appeal which acquitted him of the charges. That, however, the Applicant did not satisfy grounds precedent for issuance of condonation. To him, in an application for condonation, it is a legal requirement that the Applicant must account for the whole time of the delay. To cement his submissions reference was made to the case of Bushiri Hassan vs Latifa Lukio Mshayo which was cited with approval in the case of Ramadhani J. Kihwani vs TAZARA, Civil Application No. 204/18 of 2018. Pointing at paragraphs 5 to 13 of the affidavit filed in support of the application before the CMA, the Respondent's Counsel stated that, the Applicant tried to account for the period of the delay but failed to state the exact date when he was arraigned before the High Court. That the Applicant merely made a blanket statement and failed to account for each day of the delay. He went on to state that, in paragraphs 7 and 8 of the affidavit in support of the Application, the Applicant stated that he was pardoned by the President and after his release from prison he wrote a letter to the Page 11 of 23 Respondent requesting to be reinstated. That, the Applicant failed to account for the period of one year from when he was pardoned on 26th April 2022 to 9th May 2023 when he wrote to the Respondent of his desire to be reinstated. To cement his position, he made reference to the case of Abdon Pantaleo Msafiri vs Tanzania Postal Bank, Misc. Labour Application No. 48 of 2020. The Respondent emphasised that the mere pendency of a criminal case and appeal could not constitute a good ground for the extension of time without explanation on how the same prevented the Applicant to refer the dispute timey to the CMA. The Respondent's advocate distinguished the case of Kalunqa and Company (Supra), stating that facts in that case differ from the current case as in the current application the Applicant left gaps as there was no explanation why the Applicant did not refer his dispute to the CMA between those gaps. Responding to the claim that the Applicant was not afforded an opportunity to file his submission, Counsel for the Respondent contended that the Applicant was availed with the opportunity to file his submissions in support of the application but waived the said right when the Applicant's counsel at the CMA withdrew from representing the Applicant two days before the deadline of filling the written submissions. That, it is not known Page 12 of 23 whether the Applicant was made aware of his advocate's withdraw from representing him, hence an affidavit of his former advocate was required to substantiate the said claim. To buttress that position, reference was made to the case of Mohans Osterbay Drinks Limited vs British American Tobacco Kenya Limited, Civil Application No. 70/01 of 2022. He urged the Court to dismiss the Application. In rejoinder, the Applicant's Advocate emphasised on the requirement to avail a party an opportunity to be heard. He referred to the decision in Abbas Sherally & Another vs Abdul S. H. Fazalboy, Civil Application No, 33 of 2002. On the withdraw of instruction of the Applicant's advocate, he insisted that the said act is not to be faulted on the Applicant relying in the decisions in Abdallah Juma Kambale vs Noradi Tiliko Mongelwa, Civil Appeal No. 231 of 2018, and Potto Dofu vs Kulwa Lufwega Kija, (Civil Appeal No. 37 of 2022) [2022] TZHC 4948. Having delineated the submissions for and against the Application, it behoves me to determine whether the Application before me is merited. The law bestows a discretion for the Court to grant any order or prayer sought if in the opinion of the Court it was necessary that the order be granted. Rule 11(3) of the Labour Institution (Mediation and Arbitration) Page 13 of 23 Rules GN No. 64 of 2007 requires a person seeking condonation for referral of the dispute to CMA to set out the grounds for seeking condonation. For clarity I reproduce the same hereunder: "11(3) An application for condonation shall set out the grounds for seeking condonation and shall include the referring party's submission on the following- fa) The degree of lateness; (b) The reasons for lateness; (c) Its prospects of succeeding with the dispute and obtaining the relief sought against the other party; (d) Any prejudice to the other party; and (e) Any other relevant factors." The objective of an application for condonation is to determine whether the Applicant has adduced sufficient reasons for the grant of a condonation order or not. The law does not require a party to merely plead those grounds but also to prove their existence. Before delving on whether or not the Applicant satisfied the law requirements for a condonation, it is imperative that I deal with the issue relating to whether the CMA rightly directed its mind when it declined to allow the Applicant the right to file his written submissions after his Advocate withdrew instructions two days before the deadline of filing the said submissions. Page 14 of 23 In this Application, the Applicant claims that justice was not accorded to him since the matter before the CMA was only heard on the Respondent's side because on his side his advocate withdrew from representing him only two days before the final date to file his submissions in support of the application for condonation. The CMA records reveal that, on 30/10/2023, the CMA ordered the hearing of the application for condonation to proceed by way of written submissions. The Applicant's submissions in chief were to be filed on or before 12/07/2023, Reply submissions from the Respondent on or before 18/07/2023 and the Applicant's re-joinder submissions, if any, on or before 21/07/2023. On the same date the matter was to be mentioned. It is also on record that on 10/07/2023, Innocent Frank Mwanga, the advocate on record for the Applicant, withdrew himself from the conduct of the case and informed the CMA of his decision vide a letter which was received by the CMA on the same date. The letter is, however, silent on whether it was copied to the Applicant and or the Respondent. The record also reveals that on the date of mention, that is on 21/07/2023, the Applicant appeared in person and made an application for perusal of the CMA file. Thereafter he wrote a letter informing the CMA of the action of his Advocate to withdraw from the conduct of his case Page 15 of 23 without informing him and made a prayer seeking for extension of time to file his submissions. The records are silent on whether the same was rejected and also the same was silent on the date for Ruling. It is only on record that the Ruling dated 13/10/2023 was delivered and the Applicant's grievances were adjudicated therein where the CMA stated that the Applicant failed to comply with the scheduling order. The question is, did the conduct 01 omission of the CMA amount to denial of the right to be heard? The right of a party to be heard before an adverse action or decision is taken against such a party cannot be reemphasised. The right is so basic that a decision which is arrived at in its violation is is a nullity. The Court of Appeal in its decision in the case of Director of Public Prosecutions vs Emmanuel Fula, Criminal Appeal No. 387 of 2019 [2024] TZCA 424 had this to say: "In resolving the issue on denial of the right to be heard, we directed our minds to the minimum standards for fair trial as discussed in Mfaume s/o Daudi Mpoto & Others v. Republic [2023] TZCA 17568 [31 August 2023] and; Kabuia d/o Luhende v. Republic, Criminal Appeal No. 281 of2014 [unreported] and recapitulated the law that, any court, tribunal or authority ha ving power to affect the rights, interests or privileges or legitimate expectations of a person is bound to hear that person before exercising its power. "(Emphasis added) Page 16 of 23 That decision of the Court of Appeal is binding on this Court. In addition, I should reemphasise the fact that a litigant and his advocate have a duty to ensure that their interests are properly and diligently represented. This duty was stressed by the Court of Appeal in the case of Heritage Insurance Company Tanzania Limited vs First Assurance Company Limited, Civil Appeal No. 165 of 2020 [20231 TZCA 175 Tanzlii, where the Court cited with approval the case of Ashmore vs Corp of Lloyd's [1992] 2AII ER 486 which held that: "Ms Lordship sounded a warning to litigants and particularly their legal advisors of their duty to cooperate with the court by ensuring that they present their cases with focused, chronological and brief pleadings defining issues in such a way simplifying the matters and not raising a multitude of ingenious arguments hoping that the judge will fashion a winner We can only hope that litigants and their advocates shall strive to adhere to the requirements prescribed by the Rules''. (Emphasis added) From the guidance above, a litigant and her advocate have an unescapable duty to focus in prosecuting their matter, including appearing in court, when the matter is called. In this case, while exercising that duty, the Applicant's advocate informed the CMA of his recusal from representing the Applicant. At that moment, it is obvious that the CMA was dully informed that the Applicant was unrepresented. The Applicant, Page 17 of 23 on the other hand, after conducting a perusal of the file, informed the CMA that he was not aware of his advocate's withdrawal from representing him. He requested, diligently in my view, to be allowed to file the submissions which ought to have been filed by his former advocate. In this Court's view, the Applicant was not accorded the right of a fair trial by the CMA. His grievances addressed to the CMA via a letter were not determined, nor was he given the opportunity of being heard. A right to fair trial is expressed in Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, which provides that: "When the rights and duties of any person are being determined by the court or any other agency that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned'.' Having regard to the circumstances of this case and, particularly, the shortcomings discussed above, this Court is of the view that there was a denial of the right to be heard on the part of the Applicant. Hence, the resultant proceedings and award made by the CMA are nothing but a nullity. I could have ended here, but I feel obliged to decide on the pertinent issue: whether on the grounds provided by the Applicant, the CMA should not have condoned the delay. Page 18 of 23 An application for condonation in labour matters is akin to an application for extension of time in other cases. In Mbogo vs Shah [1968] EA 93, factors similar to those in Rule 11(3) of the Labour Institution (Mediation and Arbitration) Rules GN No. 64 of 2007 were spelt out as guiding principles to either grant or refuse an extension of time. It was held: "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length of the delay the reason for the delay/ whether there is an arguable case on the appeal and the degree ofprejudice to the defendant if time is extended." The Court of Appeal also formulated the guidelines to be considered in granting extension of time in the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Civil Application 2 of 2010) [2011] TZCA 4. It inter alia stated: "On the authorities however, the following guidelines may be formulated: a) The Applicant must account for all the period of delay; b) The delay should not be inordinate; c) The Applicant must show diligence, not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and Page 19 of 23 d) If the court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged." Being guided by the above cited authorities, I have revisited the records of the CMA to satisfy myself whether the Applicant had advanced sufficient reasons for the grant of the prayer sought. It is true that the Applicant was late in referring the dispute to CMA for a period of 11 years and 5 months. That period is obviously long and the Applicant was duty bound to explain the reasons for such a delay as per the above cited cases. Before the CMA, the Applicant stated various reasons as the cause of his delay in making referral to the CMA. The reasons as contained under CMA Forms and the affidavit in support of the application are: that the Applicant was incarcerated in prison after being charged and convicted with criminal charges from 2012 to 2019, there after he appealed to the Court of Appeal of Tanzania challenging the conviction and sentence. That while awaiting for the decision of the Court of Appeal, he was pardoned on 26/4/2022. A year later, that is on 19/4/2023, the Court of Appeal allowed his appeal. He wrote to the Respondent asking for his reinstatement but got no positive response. He preferred his complaint to the CMA which was struck Page 20 of 23 out for being time barred. He thereafter filed another application whose decision is subject of this Application. On the other side, the Respondent, through its notice of opposition and counter affidavit, it was stated that the Applicant failed to account for the period of the delay from the date he was suspended from work that is from October 2011 to when he was sentenced to served 5 years imprisonment. The other phase that was not accounted for was from when he was pardoned to when he initially lodged his complaint to the CMA that is from 26/4/2022 to 18/5/2023. The CMA dismissed the application on the ground that the duration of 11 years was so inordinate for it to extend the time frame for late referral of the dispute to it. Also, it held that the Applicant did not adduce sufficient reasons to warrant the grant of the application. The Arbitrator faulted the Applicant's arguments for failure to adduce reasonable grounds for the delay. I have failed to fathom the reasoning of the CMA regarding the reasons for the delay. To me, the Applicant, in his affidavit before the CMA, made a very good case for condonation. The argument made by the Respondent, which the CMA seemed to agree with, points at saying that the Applicant should either have referred the matter to the CMA before Page 21 of 23 he was charged, or during the period of trial and conviction, or after he was pardoned. Such arguments do not reflect the law as is. Section 37(5) of the Labour Relations Act, Cap. 366 [R.E 2019] and Rule 27(5) of G.N No. 42 of 2007 bar any disciplinary action in form of a penalty, termination or dismissal upon an employee being charged with a criminal offence until final determination by the court and any appeal thereto. It is not on record whether the Respondent initiated any proceedings against the Applicant after it served him with the letter of suspension pending a criminal investigation. It is also not stated anywhere on record that the suspension was with or without pay. It thus defeats logic to expect the Applicant to initiate a labour dispute on a mere suspension. The same applies during the pendency of the criminal trial or appeal. Furthermore, a Presidential pardon does not exonerate a prisoner from the criminal record. Thus, knowing that he had been convicted of a criminal offence, the Applicant had no legal basis of preferring a labour dispute following a pardon. It is when he was acquitted by the Court of Appeal that he regained the right to be reinstated or being paid terminal benefits, if the employer so desired. It is at this time that he preferred the matter to the CMA. It is therefore my view that the reasons for the delay are obvious. The Applicant, in his affidavit and CMA Forms, made a good case for condonation. In the exercise of my revisional powers, I condone the delay. Page 22 of 23 In the upshot and considering all what has been stated above, I hereby quash the whole CMA Proceedings and Ruling issued thereafter and remit the file back to the CMA. The CMA is directed to determine the Applicant's grievances on their merits. Since the matter is a labour dispute, I make no order as to costs. DATED at ARUSHA this 5th day of July 2024 Page 23 of 23