RULING CLARENCE MGIMBA final 2 1

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 000022764 OF 2024 CASE REFERENCE NO. 202409121000022764 CLARENCE CHRIS MGIMBA .............................. APPLICANT VERSUS FOUNTAIN OF JOY NURSERY AND PRIMARY SCHOOL ........................................................... RESPONDENT RULING OPIYO, J. This is an application for extension of time to file revision application out of time against CMA award in labour dispute No. CMA DSM/UBG/12/21/19/2021. In this application, the applicant was represented by Cosmas Maige, Personal Repetitive and Bonaventure Dunda, learned counsel, represented the respondent. In support of the application, Mr. Maige submitted that, originally the application for revision was filed but, it was withdrawn for the same was filed twice. That, such withdrawal allowed the applicant to return to this court for application to refile revision application, that is why they are here applying for extension of time to do so. He therefore, prayed that their prayer be granted to enable applicant file the intended revision. He made reference to the case of Amour Habib Salim v Hussein Bafagi, Civil Application No 52 of 2009, CAT in which the court allowed the other party to file for application for extension of time to enable filing the desired application. Mr. Dunda on the other hand submitted that, the matter did not end with withdrawal of the application only, rather in the cause of determining the previous revision application filed by the applicant, Hon. Judge Mganga finally quashed and set aside the award and nullified the CMA proceedings upon upholding the preliminary objection raised by the court suo motu in relation to improper filing form CMA F1. That, the court also held that, the applicant was at liberty to file another dispute at CMA subject to rule 10(1) and (2), 11 and 19 of Labour Institution (Mediation and Arbitration) Rules, GN 67 of 2007. The decision was decided on 7th March 2024. Therefore, the remedy that he was given is to file another matter at CMA and not to file revision before this court (copy of the decision supplied) for which he is making application for extension of time to file out of time. In challenging the merits of the application, he submitted that, the applicant in his affidavit, did not say anything about his whereabouts since 7th March 2024 when Hon Mganga’s decision was reached to 12th September 2024 when he filed the current application. That, from March to December, almost 5 months elapsed which has not been explained, making applicant failure to account for each day of delay required of him. For this he cited the cases of Jamanest Mboya v Swaiba Mahmoud and Another, Civil Application No. 521/17 of 2021, CAT and Lyamuya Construction Company Limited v Board of Trustees of Young Women’s Christian Association of Tanzania, Civil Application No 2 of 2010 to substantiate his argument. He then concluded that, for such failure, the applicant’s application does not fit the criteria for it to be granted, it should therefore be dismissed with costs. In rejoinder, Mr. Maige reiterated that, the order that was given by Hon. Mganga, J did not state that the matter be filed at the CMA and this court did not quash the CMA award. He continued that, since the mistake of filing the application twice did not happen at CMA and the order to withdraw was also from this court, not CMA, the dispute cannot be filed at CMA. He insisted that, by withdrawal no limitation was put in their application to be filed in this court, that is why they are pursuing refiling of the revision. He classified Mr. Dunda’s arguments about the award being quashed and CMA proceedings nullified as baseless. His above assertion on ignorance of courts decision of 7th March, brought curiosity, leading to court probing him about his knowledge in relation to decision by Hon. Mganga J dated March 7th 2024 supplied by the respondent’s counsel. He still denied being aware of the same. After noticing discrepancy on the submissions of the applicants representative and respondent the court thought to prudent to look into the truth of what transpired in relation to the alleged two former revision applications by the applicant. According to the order of the court by Hon. Mganga, J dated 15/02/2024 between Clarence Chris Mgimba and Fountain of Joy Nursery and Primary School, the applicant had filed 2 revision applications in the system, namely Revision Application No. 1310/2024 and 1484/2024. When the applications were called for orders on that date Mr. Cosmas Maige, who was a personal representative of the applicant brought to the attention of the court about the mistaken existence of those two applications and requested for revision No. 1310/2024 to be marked withdrawn. This application was made in presence of advocate Boniventure Dunda representing the respondent. Mr. Dunda supported the withdrawal prayer. The court, after noting the similarities in those two-application marked application No. 1310/2024 withdrawn while Revision Application No. 1484 was scheduled for hearing on 23/02/2024. On that day, when application was called for hearing as noted above the court raised a concern suo motu as to whether the dispute was properly filed at CMA which he asked the parties to address him on. Representatives of both sides had opportunity to address the court. Mr. Cosmas Maige, Personal Representative acted for the applicant while Mr. Heri Kusekwa, learned counsel represented the respondent. Upon consideration of the parties’ submissions the court reached a decision that, by indicating that the dispute related to breach of contract and then proceed to fill part B of CMA F1 made the said CMA F1 defective. This resulted to him nullifying CMA proceedings, quash and set aside the CMA award. He proceeded to advise the applicant to institute a proper dispute at CMA, if was still interested to pursue the matter. This is the application which Mr. Maige decided to conceal to the court in his application for extension of time to file yet another revision application before this court out of time purporting ignorance of its existence. Worse still, even when the same was brought to the attention of the court by Mr. Dunda in his reply submission, Mr. Maige still avoided saying anything about it in his rejoinder submissions. And even when he was probed by the court on the same, he still maintained his pretense of not knowing existence of Revision Application No. 1484/2024 insinuating it being a sham brought by Mr. Dunda from the unknown source. He claimed that both Revision applications were withdrawn on 15th February 2024 while he produced no proof if Revision Application No. 1484/2024 was also withdrawn on that day. Perusal of the records reveals that all along the applicant has been enjoying the services of Mr. Maige as his representative. For that, Mr. Maige fully and actively participated in pursuit of both applications. In Application No. 1310/2024 that he applied to withdraw on 15/02/2024, the prayer that was granted on the same day. He again proceeded with addressing court in Labour Revision No. 1484/2024 leading to nullification of the CMA proceedings and award. So, he was perfectly aware of both applications from the start to the end. It is obvious that presence decision of this court in revision application no. 1484/2024 nullifying CMA proceedings and award is a bar to further perusing this matter before this court. If the applicant was dissatisfied with the decision of Hon. Mganga, J in Revision No. 1484 he had only one option of appealing to the Court of Appeal and if he was contented with it, he would have gone back to CMA file proper dispute as per court advice. By filing application for extension of time to file fresh application for revision in pretense of being unaware of the application which he actively pursued and was present on the date of the decision shows the adamance and naivity of both the applicant and his presentative. The ruling of the court of 703/2024 is indicated to have been delivered in presence of Mr. Maige. I, therefore, believe Mr. Maige intentionally concealed this court’s decision with intention of misleading the court and the other party amounting to abuse of court process. There is no any better explanation to his mimic reaction when the copy of the decision was provided to him before the court and even insinuating forgery on part of respondents advocate when he was queried by the court about the same. In my considered view, this is what amounts to frivolous and vexatious applications contemplated under rule 51(2) of the Labour Court Rules which may attract costs on the party bringing the application irrespective of the fact that generally labour matters do not attracts costs. I am alive to the fact that no costs are usually payable in labour matters in terms of Labour Court Rules, 2007 rule 51(1). However, this application falls under sub rule (2) of the same rule in which the court is mandated to order payment of costs where any proceedings appear to be frivolous or vexatious. The provision provides that “51 (1) No costs, fees or interests whether commercial or court fees or interests whatsoever shall be payable before the court in respect of any proceedings under the provisions of this Acts (2) notwithstanding subrule (1) where any proceedings appear to the court to be frivolous or vexatious, the court may, in its discretion, order the party initiating the proceedings to pay general or specific costs… as the court deem fit…” From the above provisions the costs are usually pinned on the party initiating such vexatious proceedings. However, in this matter, it is palpable that these proceedings have been initiated by the representative without fully informing the applicant of the implication of two decisions. Otherwise, how could someone acting ignorance of the decision expected to have advised his client on the same. The party may be is not even informed of the decision nullifying CMA proceedings. The likelihood is that, the facts have been concealed to him just in the same way Mr. Maige did with the court as he is the one who was always in attendance. That is the reason the facts are missing in applicant’s affidavit in support of the application. In the circumstances the person to blame for such vexatious proceedings is the applicant’s representative rather than the applicant himself. For the reasons, the court struck out this application with costs that is to be borne by the personal representative in person. M. P. OPIYO, JUDGE 27/2/2025 Ruling is delivered in presence of Cosmas Maige, PR, for the applicant and Boniventure Dunda for Respondent