dolin investment company ltd vs benny raymond mndolw 2021 tzhcld 376 13 september 2021

THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 39 OF 2021 BETWEEN DOLIN INVESTMENT COMPANY LTD............................................ APPLICANT VERSUS BENNY RAYMOND MNDOLWA......................................................RESPONDENT RULING Last order 11/8/2021 Date of Ruling 13/09/2021 B.E.K Mganga, J On 1st September 2015 applicant employed the respondent as machine operator and on 5th December 2019 terminated his employment. After termination of employment, the respondent filed a labour dispute at the Commission for Mediation and Arbitration. On 8th July 2020, Mkombozi, Z.B, issued an exparte award in favour of the respondent. In the said exparte award, the respondent was awarded TZS 2,418,000/=. On 16th February 2021, the applicant filed this application seeking extension of time within which to file revision application for this court to revise the said exparte arbitral award. The notice of application was supported by an affidavit sworn by Glory Daniel. On the other hand, the respondent opposed the application and filed a counter affidavit to that effect. i When the application was called for hearing, Ms. Mariaalicia Faustine, Advocate appeared and argued for and on behalf of the applicant while the respondent was represented by Majid Matitu Advocate. Arguing the application, Ms Faustine, counsel for the applicant submitted that the main reason for applicant to pray for extension of time is that she was not served before hearing of complaint No. CMA/PWN/NKR/28/2019 at Mkuranga. She went on that applicant was served with CMA Form I without date of hearing. She conceded that, applicant did not make application at CMA to set aside the said exparte award because soon after issuance of the said exparte award, the respondent filed before this Court application for execution. She relied on Rule 50(1) of the Labour Court Rules, GN. No. 106 of 2007 that this court has power to extend time so that applicant can file revision. She submitted further that, this Court has discretionary power to extend time upon good reasons being adduced. She cited the case of Saidi Baraka and 2 others vs. Exim Bank Limited, Miscellaneous Commercial Case No. 300 of 2015, Dar es Salaam (High Court) to bolster her argument. She conceded that applicant became aware of the exparte award on 05th August 2020 as averred in paragraph 12 of the counter affidavit and that she filed this application on 16th February 2021. She therefore prayed the application be allowed and time extended. 2 Mr. Matitu opposed the application and submitted that applicant refused service of CMA form 1 as a result, it was ordered to be served by EMS. That, applicant was served with the exparte award, as per paragraph 12 of the counter affidavit on 5th August 2020. That from that date, applicant was aware, but she filed this application 16th February 2021 almost six months after being served with the exparte award. Counsel went on that applicant has failed to account for this delay. He cited the case of Robert s/o Nyengera V. Republic, Criminal Application No. 42/13 of 2019, wherein the Court of appeal held that, delay has to be accounted for in application for extension of time. He concluded that failure to account for each day of delay makes an application liable to be dismissed. He further submitted that under Rule 30(1) of the Labour Institutions (mediation and Arbitration) Rules, GN. No. 64 of 2007 the applicant was supposed to make an application before CMA to set aside the exparte award. In rejoinder, counsel for the applicant reiterated what she submitted in chief and asked the Court to invoke the overriding objective principle and use its discretionary power to extend time to the applicant as this will not prejudice rights of the Respondent. 3 This being an application for extension of time, I am asked to exercise my discretion. I am alive to the position that extension of time is a discretionary exercise that has to be exercised judiciously. This is a long- established principle by the Court of Appeal, the highest court in the hierarchy in our country. It has so been repeated several times. One of the cases to that point is MZA RTC Trading Company Limited v. Export Trading Company limited, Civil Application No. 12 of 2015 (unreported) wherein the Court of Appeal held:- " an application for extension of time for the doing of any act authorized ...is on exercise in judicial discretion... judicial discretion is the exercise ofjudgment by a judge or court based on what is fair, under the circumstances and guided by the rules and principles of law..." Therefore, it is not enough for just to say I am exercising my discretion and grant extension of time to the applicant or reject the application. I am required to give reasons albeit briefly why I am granting or refusing to grant extension. That is the position taken by the Court of Appeal in the case of MZA RTC supra. It has been also held several times by the Court of Appeal that in application for extension of time, applicant has to account for each day of delay, has to adduce good cause of delay, has to show that he /she was 4 diligence in dealing with the matter, has to show that there is illegality in the impugned decision and that the court has to consider length of delay, reasons for the delay, arguable points on appeal and degree of prejudice to the respondent if time is extended. Some of the cases to that position are James Anthon Ifanda vs. Ha mis Alawi, Civil Application No. 482/14 of 2019, CAT, (unreported), Gabriel Mathias Michael and another v. Halima Feruzi & 2 others, Civil Application No. 588/17 of 2019, CAT, (unreported), Dar es salaam, Ngao Godwin Losero v. Julius Mwarabu, Civil Application No. 10 of 2015, CAT (unreported) and Cosmas Faustine v. Republic, Criminal Application No. 76/04 of 2019, CAT, (unreported), Bukoba. In the application at hand, the applicant was served with an award on 5th August 2020. That from that date, she was aware of existence of the exparte award but took no action until on 16th February 2021 when she filed this application more than six months later. I have read the affidavit in support of the application and find that applicant has not accounted for the delay of by more than six months. Not only that, but also, applicant has not adduced reasons for that delay. Counsel for applicant has argued me to invoke the overriding objectives principle and discretionary power to grant the application. With due respect, the overriding objective principles 5 cannot be applied in the way that will make litigations not to come to an end or to facilitate parties who does not want to adhere to the law especially the law of Limitation. It can be recalled that an award was issued long time ago exparte for the reasons that applicant did not enter appearance, yet after being aware of its existence, took no action. She has filed this application more than six months as she found on her will and without adhering to the law of limitation. The averment in the counter affidavit shows that applicant refused to obey summons to appear at CMA. That evidence has not been challenged. I see no reason for me to exercise my discretion and extend time to the applicant who has neither accounted for the delay nor adduced good reasons for that delay. I, therefore, dismiss the application for lack of merit. It is so ordered. B.E.K. Mganga JUDGE 13/09/20 6