dismas adam mwaipopo vs insignia limited 2024 tzca 140 29 february 2024

IN THE COURT OF APPEAL OF TANZANIA

AT PAR ES SALAAM (CORAM: SEHEL. J.A.. KENTE. 3.A. And MASOUD, J.A.^ CIVIL APPEAL NO. 176 OF 2021 DI5MAS ADAM MWAIPOPO............................ ............................APPELLANT

VERSUS INSIGNIA LIMITED............................. .................................... RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mwipopo, J.1 Dated the 14th day of May, 2020 in Misc. Application No. 260 of 2020

JUDGMENT OF THE COURT 16th & 29th February, 2024 KENTE, J.A.; This is an appeal against the ruling of the Labour Division of the High Court (the Labour Court) (Mwipopo, J.), dated 5th March, 2021 dismissing the appellant's application for extension of time to initiate review proceedings. In that application the appellant had intended to move the Labour Court to review its order in Labour Revision No. 646 of 2019 dated 14th May, 2020. The facts leading to this appeal are, by and large, incontestable and, they can be briefly recounted as follows: i The appellant was an employee of the respondent company from 14th September, 2014 to 17th December, 2018. According to the appellant, he was engaged on permanent and pensionable terms as a driver. Upon termination of his employment contract on 17th December, 2018 and, believing that the said termination was quite unfair, he referred his complaints to the Commission for Mediation and Arbitration (hereinafter the CMA) in Labour Dispute No. CMA/DSM/TEM/770/18 seeking to be reinstated or compensated. Even though, the appellant's case before the CMA could not proceed so as to be determined on merit. It was struck out for being incompetent but he was given an option to refile it within ten days. To be exact, that order was made on 22nd February, 2019. Apparently, being mindful that, by that time the prescribed period within which he could

refer his complaints to the CMA had already expired, the appellant filed an application for condonation (No. CMA/DSM/TEM/110/2018) in terms of Rule 29 (4) of the Labour Institutions (Mediation and Arbitration) Rules GN No. 64 of 2007. The said application was however, dismissed on 21st June, 2019 for lack of merit. 2 Disenchanted with the decision of the CMA dismissing his application for condonation, the appellant further applied for revision to the Labour Court (in Revision Application No. 646 of 2019) but once again, his application was dismissed on 14th May, 2020 because of his alleged non-appearance and failure to serve the respondent with the notice of hearing. Still undaunted, the appellant applied for extension of time to file an application for review of the Labour Court's decision, but all to no avail. Bloodied but unbowed after the Labour Court's decision, the appellant has appealed to this Court. Before this Court, whereas the appellant was represented by Mr. Ali Kasian Mkali, learned advocate, the respondent had no legal representation but its case was ably argued by way of written submissions which were filed earlier on in terms of Rule 6(7) of the Tanzania Court of Appeal Rules 2009, (the Rules) and subsequently adopted by Mr. Haruni Omari, a Human Resource Officer who appeared on behalf of the respondent on the date of hearing. We should mention at this earliest

opportunity that, when narrowed down, the issue that arises in this appeal, is whether the appellant had furnished good cause to warrant the indulgence of the 3 Labour Court to grant an application for extension of time. We say so because, as a matter of law, except for illegality if it is brought to the attention of the court, the words critical to deciding any application for extension of time under any law which override all questions of pleading, are ordinarily in the phrase "upon good cause shown." Obviously, we take this view in order to avert the danger of Mr. Mkali's apparent proneness towards prolixity of the grounds of appeal which, if not checked, is likely to obfuscate the real issues involved in this dispute. As between the parties, it was not in dispute that, the decision of the Labour Court which is sought to be reviewed was handed down in the absence of the parties, on 14th May, 2020. For the sake of exactitude, we need to state here that, by that decision, the Labour Court had dismissed the appellant's Revision Application (No. 646 of 2019) because of his alleged failure to enter appearance and to effect service on the respondent. This means the appellant had, in terms of Rule 27 (1) of the Labour Court Rules, [GN No. 106 of 2007] which provides for the 15 days period within which an aggrieved party may apply for review, up to 30th May, 2020 to file the

application for review. The appellant was however, unaware of the Labour Court's decision dismissing his revision application until 16th June, 2020 when a copy of 4 the court's order was served on his advocate. If we accept that explanation as the Labour Court did, it would mean that the appellant had up to 30th June, 2020 to file the application for review which he did not, hence the application for extension of time which he filed in the Labour Court on 8th July, 2020. In considering what fell for determination by the court, and, in view of the appellant's explanation, the learned Judge of the Labour Court started by observing, correctly so, in our view, as it is trite law that, the legal authorities on the granting or refusing an application for extension of time required that, the applicant should account for each day of the delay, and that it is entirely in the discretion of the court to grant or refuse such an application. With regard to the application before him, the learned Judge referred to Rule 27 (1) of the Labour Court Rules which provides that, a review application shall be instituted by filing a written notice of review. He also relied on sub-rule 5 of the same Rule which provides that, the above-mentioned notice of review shall substantially be as prescribed in Form No. 6 in the Schedule to the Rules. Guiding himself, the learned Judge held that, there was

nothing intellectually taxing in the preparation of the application for review and, 5 on that account, since the appellant's (then the applicants) counsel had received instructions to file the application for review on 22nd June, 2020, the learned High Court Judge took the view that, the appellant's counsel could have lodged the application for review within the prescribed 15 days period which would not extend beyond the 30th June, 2020 . Based on the foregoing analysis, the learned Judge noted that, the appellant had not accounted for each day of the delay, and he thus, arrived at the final conclusion that the application before him was not substantiated. Being dissatisfied with the ruling of the lower court, the appellant appealed to this Court advancing six (6) ground of appeal, complaining thus: 1. That the Labour Court erred in law and in fact by holding that the Miscellaneous Application No. 260 of 2020 was lodged in court for the first time on the 8th day of July, 2020 instead of 25th day of June, 2020.

2. That the Labour Court erred in law and in fact by totally disregarding that Misc. Application No. 260 of 2020 followed mandatory provisions of the electronic filing system which require 6 that all applications should first be instituted through the electronic filing system.

3. That the Labour Court erred in law and in fact by its failure to appreciate that, the law provides for a fourteen days grace period from the date of filing a document electronically to the date of lodging in the Court Registry the physical counterpart hard copies.

4. That the Labour Court erred in law and in fact in holding that if a delay to file a document is occasioned by a Divine cause, an applicant can automatically institute an application without seeking leave of the Court.

5. That the Labour Court erred in law and in fact in computing the period in which the applicant delayed to institute the application for extension of time and therefore erroneously considered the time of delay accounted for by the appellant. Further, that the Labour Court misdirected itself and erroneously relied on the wrong period in arriving at its impugned decision.

6. That the Labour Court erred in law and in fact in relying on either erroneous or tempered information in the Court's JSDS Civil Registry's Electronics Records in Miscellaneous Application No. 260 of 2020 as the Court's certified print-out records issued to the Appellant on 3rd day of May, 2021 do not tally with the fact and the Electronic Report received by the Appellant after electronically lodging the application which was received by the court on 25th day of June, 2020 at 21:42:13 followed by electronic report titled "Case Admitted" confirming that the case had been approved therefore resulting into an illegality. In order to indicate why and how the parties found themselves in the present situation, regardless of the risk of being repetitive, we wish to put this dispute into a proper perspective by stating that, although Mr. Mkali appears to multiply the appellant's grounds of complaint, the decision by the Labour Court was solely based on a narrow issue. What was, and is still at issue is whether or not the appellant had furnished any good cause to account for the delay to lodge the application for review within 15 days of the decision sought to be reviewed as required by law. More specific and, contrary to the complaints raised in the appellant's grounds of appeal and the written and oral submissions made by Mr. Mkali, the facts which the appellant put forward in

support of the application for extension of time to apply for review were contained in, and they are discernible from paragraphs 18-24 of the appellant's supporting affidavit. They read as follows: 8 18.0 That, on 17th June, 2020 I received a call from my counsel informing me that I had to urgently travel to Dar es Salaam from Tanga as there were new developments on the case in this Court which needed my decisions and instructions to my counsel. 19.0 That I managed to travel to Dar es Salaam on 19th day of June, 2020 and arrived at or around 17:00 hours. By this time my advocates' offices were closed and the following two days were not working days. A copy of the bus ticket is attached herein marked DAM-VI for which I the Applicant seeks leave of this Court for the same to form part of this Affidavit. 20.0 That on Monday morning, the 22nd day of June, 2020 I attended this matter at the offices of my advocates who showed me an acknowledgement receipt dated 16th June, 2020 at 16:28 hours received from Tanzania Posts Corporation through its flagship service POSTA MLANGONI accompanying an article with registration number RR 010275884TZ post marked 12.06.2020 containing an Order of this Court delivered on 14th May, 2020 (Honourable Madam Wambura, S.A.N., J.) where this Court dismissed Revision Application No. 646 of 2019 for failure to produce proof of service to Respondent. Copy of

the said Postal acknowledgement receipt is attached herein marked DAM-VII for 9 which the Applicant seeks leave of this court for the same to form part of this Affidavit. 21.0 That from 22nd to 25th of June, 2020 my counsel and I spent the time to prepare this application and to visit the court to request for a sworn affidavit of Ms. Jane Lwiza and also for perusal of the court file. That I then signed my application for filing notice of review on 25th day of June, 2020 and authorized my advocates to file the same in this Court. Another point we need to emphasize here in order to put the record straight, is the fact that, the application for extension of time which gave rise to the present appeal, was filed on 8th July, 2020 and not 25th June, 2020 as vehemently contended by Mr. Mkali whose contention is clearly contrary to what is on the record before us. This is particularly so in the light of two grave factors, namely, first, that, the chamber summons and the appellant's supporting affidavit were endorsed as having been presented in court for filing on 8th July, 2020. Secondly, as Mr. Charles Leonard Yotha the then appellant's (applicant's) counsel submitted (on page 104 of the record of appeal), by 25th June, 2020 which was the deadline to file the application for review, nothing was filed as the appellant's (the applicant's) counsel were still preparing the application for

review. 10 In the given circumstance to which the record of appeal speaks by itself, we are inclined, in the absence of any contrary evidence, to accept the position taken by the Labour Court that, indeed the application for review was filed on 8th July, 2020 which was far beyond the period prescribed by law. In this context, the argument by Mr. Mkali regarding electronic case filing system which was not raised before the Labour Court cannot be entertained. And if there is anyone to blame, it is the appellant himself for not presenting his pleadings clearly to allow the Labour Court make a well-informed decision. For, the entire, lower court's record clearly shows that the question regarding the mode of filing the application before the Labour Court did not arise and the learned Judge had no difficulties comprehending the issue that confronted him for determination. Turning now to the hotly contested issue as to whether or not the appellant had furnished any good cause to warrant the grant of an order for extension of time, we do not believe that the appellant had satisfied the requirement to account for each day of the delay. In the circumstances, the lower court judge could not be faulted for holding that the appellants' counsel cannot be heard to say that they were preparing a simple application for review for almost sixteen days from 22nd June to 8th July, 2020. ii The upshot of our foregoing discussion is that, the appellant's grounds of appeal are devoid of merit, and we accordingly, dismiss them. In turn, the entire appeal is hereby dismissed with no order as to costs. DATED at DAR ES SALAAM this 28th day of February, 2024. B. M. A. SEHEL

JUSTICE OF APPEAL P. M. KENTE

JUSTICE OF APPEAL B. S. MASOUD

JUSTICE OF APPEAL The Judgment delivered this 29th day of February, 2024 in the presence of Ms. Scholastica Mapunda, learned counsel for the appellant and Mr. Haruni Omari, Human Resource Officer for the respondent is hereby certified as a true copy of the original. W. A. HAMZA

DEPUTY REGISTRAR

COURT OF APPEAL 12