come call limited vs salum ally nanjalata 2022 tzhcld 991 10 october 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 186 OF 2022 (Arising from the decision of the Commission for Mediation and Arbitration at liaia, Dare es Saiam before Hon. Mourice Egbert Sekabila, Arbitrator in Ref. No. CMA/DSM/ILA/125/18/23) BETWEEN COME & CALL LIMITED........... ............. APPLICANT VERSUS SALUM ALLY NANJALATA ............................................................ RESPONDENT RULING S.M, MAGHIMBI, J: The application beforehand was lodged under the provisions of Rule 24(1), 24(2)(a)(b)(c)(d)(e)(f), 24(3)(a)(b)(c)(d), and 28(l)(b)(c)dd)(e) & 28(2) of the Labour Court Rules, G.N. No. 106 of 2007 ("the Rules"), Section 91(l)(a),91(2)(b)(c) and 94(l)(b)(i) of the Employment and Labour Relations Act, Act No. 6 of 2004 and a Drawn Order issued by I Honourable Arufani, J dated 26/08/2021. I I I i The Applicant is moving the Court for an order in the following terms; i i । 1. That this honorable Court be pleased to revise, quash and set aside I the Award of Commission for Mediation and Arbitration delivered by i Hon. Mourice Egbert Sekabila Arbitrator in CMA/DSM/ILA/1^5/18/23 I on 20.01.2921 and served upon the applicant on 20/09/2021. 2. Any other relief this honorable court may deem fit and just to grant. The applicant appointed Mr. Ceasor Sebastian Kabissa as her Advocate. On the 22nd day of August, 2022 when this matter came for mention, I ordered the parties to address me on whether the application beforehand was lodged within the time prescribed by the law. The parties addressed the court by way of written submissions. I In his submissions, Mr. Kabisa pointed out that the award of the CMA was dated on the 14th December, 2020 and the certified copy was issued on the 20/01/2021. That the applicant was served with a copy thereto on I the 20th September, 2021. He argued that the six weeks prescribed under Section 91(1) of the ELRA started to count from the date the av^ard was served on the applicant. That since the award was served on the applicant i i on the 20th September, 2021, as there Is no law providing the procedures । । for service of awards to the parties, it is the copy that remains in 'the CMA I I file that proves when the applicant was served with the award. He argued that the court should not punish him because as per the case of Serengeti I I Breweries Limited Vs. Joseph Boniface, Civil Appeal No. 150/2015 2 the Court of Appeal held that the CMA is duty bound to serve the parties with the award. In reply, Mr. Frederick Ododa, learned advocate representing the respondent, submitted that the award was issued on 14th day of December, i 2020. That the respondent filed Execution No. 159/2021 and that is when the applicant lodged a revision application No. 291/2021 on 18th August which was struck out for being time barred on 18/08/2021. He argued that the submission of Mr. Kabisa that he was served with the award on 20th September, 2021 is a lie. I have heard the submissions of both parties and have no issues with the chronology of events from the time of delivery of the award to the 18/08/2021 when the previous application was struck out. My main concern is on the time between the 18/08/2021 to the 30/09/2021 when the applicant filed another application on line. And more so concerning is i the period that lapsed between the 30/09/2021 when the applicant I electronically refiled the struck out application to the 16th of Jurie, 2022 j i when the physical application was filed in court. It is obvious that there 1 i was no explanation by the applicant, of her whereabout from that time. Further to that, I have also noted Mr. Ododa's submission that the applicant had previously lodged a Misc. Application No. 291/2021 which was struck out by the court. Coming to the time that has lapsed between 30/09/2021 when the applicant electronically refiled the struck out application to the 16th of June, 2022 when the physical application was filed in court, unfortunately the parties did not address this issue, however, since the opportunity was accorded to them I will proceed to determine the issue. I Although the electronic filing rules are silent on the lapse of time between the electronic and physical filing, but I find it prudent that I set the records clear and set a discipline in abiding by the provisions of the laws and regulations. The aim of the judiciary to develop online filing system is in fulfilling its major judicial reforms by simplifying things via technology resulting in expeditious disposal of the matters. Indeed I according to the Electronic Filing Rules, the date of filing th4 matter I electronically is deemed to be the date of computing time limitations, however, the commencement of the matter is done and the matter given I official admission when the matter is physically filed in court. Nowi because the rules are silent on the time frame between electronic filing and: physical I filing, should the parties be left free to file the matters physically anytime 4 they wish for as long as they have lodged an electronic applicatioh and it I I was admitted? The answer is no, this was not the intention of having the i electronic filing rules. It is pertinent to note that the time that! lapsed j between electronic filing and physical filing in this case is nine (9) I I months!! i 1 Notably so, even in the collection of the award, the applicant ijs doing i nothing but a pure abuse of court process. The award was issued on 20/01/2021 and he went to collect it on 20th September, 2021 again another eight months? This shows lack of seriousness and an abuse of I process by taking advantage of the loopholes present in the law. f+or the i CMA award he has cited the Court of Appeal case which I am bouncl with, j But for this filing at the Labour Court, where it took the applicant nine months to bring a physical application in order to commence the proceedings, is nothing but an abuse of process. Even the Law of i Limitation Act, Cap. 89 R.E 2019 has set time to initiate proceedings where no limitation is set, which is 60 days. While in this case, the applicant I wants to be left free for nine months to bring an application i after electronically filing it nine months earlier. 5 It was after the applicant has lodged an application for Execution of the CMA award (Execution No 217/2022) on the 06/06/2022, then miraculously on the 16/06/2022 the applicant remembers to bring this application. So he had just parked the case in our registry and got a wakeup call when the execution application was filed. Another clear signal of an abuse of process. Owing to what I have explained above, I find the present application to be hopelessly time barred and it is hereby dismissed. Dated at Dar es Salaam this 10th day of October, 2022. S.M/MAGHIMBI JUDGE