Ruling Labour Revision No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB-REGISTRY AT MOSHI LABOUR APPLICATION NO. 2189 OF 2023 (C/F Labour Dispute No. MOS/CMA/M/11/2023 at Commission for Mediation and Arbitration) DROVER NYASEBWA…..……....………………….…………… APPLICANT VERSUS MWENGE CATHOLIC UNIVERSITY..…………………..……..RESPONDENT RULING Date of Last Order: 06.08.2024 Date of Ruling : 30.08.2024 MONGELLA, J. The applicant herein preferred this application seeking for revision of the decision of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/KLM/MOS/ARB/11/2023. His application was supported by his own sworn affidavit. The respondent expressed her opposition of the application by a counter affidavit sworn by one, Emmanuel Lazarus Meza the Principle Legal Officer of the Respondent. The respondent also filed a notice of preliminary objection on one point, to wit: “This application is incompetent for being hopelessly time barred” Page 1 of 8 The objection was argued by written submissions whereby the respondent was represented by Mr. Emmanuel Ntungi, while the applicant was represented by Mr. Edwin Silayo, both learned advocates. In his submission in chief, Mr. Silayo started by referring to Section 91(1) (a) of the Employment and Labour Relations Act [Cap 366 R.E 2019], which provides that a party who is aggrieved by the award of the CMA should file his revision in six weeks, which is equivalent to 42 days. Referring to the applicant’s record, he contended that the applicant was served the award on 14.12.2023, but preferred this revision on 06.02.2024. To be specific, he referred to the Court stamp and the data in the E Case Management System (eCMS). Thus, counting from 14.12.2023 to 06.02.2024 he found the total being 55 days rendering the applicant to have filed his application out of time. Addressing the position of the law, he argued that the law of limitation knows neither sympathy nor equity. In that respect, he said, the available relief is for the matter to be dismissed. To fortify his averment, he referred the case of Sarepta Network Investment (SANEICO) vs. Bukoba District Council and Another (Civil Case 16 of 2021) [2022] TZHC 9806 (12 April 2022) whereby the Court made reference to the case of Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni (Civil Appeal 19 of 2016) [2021] TZCA 202 (17 May 2021). Page 2 of 8 Insisting that the application cannot be withdrawn, adjourned, amended or corrected, he made reference to the case of Ghati Methusela vs. Matiko Marwa Mariba, Civil Application No. 6 of 2006 (unreported). Concluding, he prayed for the application to be dismissed for being incompetent. Replying to the preliminary objection, Mr. Ntungi was firm that the matter was filed on time. He alleged that the applicant had electronically filed the Revision on 18.12.2023 at 18:58:37 hrs and assigned admission No. 000093080. However, the same became untraceable in the system thus, the court clerk instructed the applicant to file a fresh application. The applicant filed another Application on 27.01.2024 at 14:56:51hrs which was assigned admission No. 000005066, but the same was untraceable as well. He thereafter filed another Labour Revision on 06.02.2024 at 08:30:24hrs which was assigned admission No. 000006710. He attached printouts reflecting such details. The learned counsel further averred that the CMA award was delivered on 06.11.2023 and the first application was filed on 18.12.2023, which was 42 days after the award. He added that the hard copies were then stamped on 06.02.2024 after their admission rendering the filing date different from that of admission. Endeavouring to show that the delay was not at his fault, Mr. Ntungi claimed that the eCMS has several disadvantages. In those premises, he sought for the overriding objective to be invoked so as justice to be upheld. Still blaming the eCMS, he contended that the Page 3 of 8 gap from the first filing on 18.12.2023 to 06.02.2024 was occasioned by technical problems. Thus, urged for parties not be punished for technological issues within the system. In support of his assertion, he referred the case of Mw Rice Millers Ltd vs. Mwasa Security Limited (Civil Appeal 10 of 2022) [2022] TZHC 12118 (10 August 2022) TANZLII. Referring further to Rule 21 of the Judicature and Application of Laws (Electronic Filing Rules), 2018 GN No.148 of 2018 the learned counsel alleged that the last date of filing is before midnight. He referred the case of Kaji Hamis Abdallah vs. Republic (Misc. Criminal Application 27 of 2021) [2021] TZHC 3998 (6 July 2021) TANZLII and Josiah Zephania Warioba vs. Bouygues Energies & Services (Misc. Labour Application 28 of 2021) [2022] TZHC 24 (24 January 2022) TANZLII, to bolster his point. He finalized his submissions by insisting that the application is within time and thus prayed for the preliminary objection to be dismissed with costs. Rejoining, Mr. Silayo still maintained his stance that the matter was time barred. He challenged Mr. Ntungi’s defence that there were technological challenges in filing through the eCMS. He contended that despite the technical problems, the applicant ought to have first sought for leave to file out of time instead of repeatedly filing the matter. He further argued that the applicant ought to have taken the hard copies to the Deputy Registrar to report the issue and receive advice on the same, but he clearly did not do so. Still challenging the competence of the applications allegedly filed on 18.12.2023 and 27.01.2024, he argued that it is not that the Page 4 of 8 Deputy Registrar did not see the applications, but rather remarked “for filing admission for appeal tribunal”. He contended that the said remarks were in red colour warning the applicant to file the application at an appropriate registry because he had filed the same in the tax appeal window. In his view, the error was not occasioned by the system, but the applicant. Mr. Silayo stressed that this application was filed out of time as reflected in documents served to them and the Court and the error was not occasioned by technical issues. On that account he found distinguishable the case of MW Rice Millers Ltd (supra) and Josiah Zephania Warioba (supra). He further challenged that the only Labour Revision filed online is the one at hand. That, the rest do not bear the case number of the one at hand rendering them not labour disputes. He reiterated his point that the other applications were denied with remarks. He maintained his stance that the errors did not justify the late filing as the applicant ought to have sought leave of the Court to file out of time. He maintained his prayer for the matter to be dismissed. I have objectively considered the submissions of both parties’ counsels whereby the dispute lies on whether this application is time barred. The respondent’s counsel focused his argument on the fact that this application was filed on 06.02.2024 while the CMA award was served to the applicant on 14.12.2023. On the other hand, the applicant did not object filing this application on 06.02.2024, but countered that there had been a series of applications prior to the Page 5 of 8 current one, the first of which was filed on 18.12.2023 rendering the same within time. It is trite law that preliminary objections are to be on pure point of law and not matters requiring evidence. This position was well settled in Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd [1969] EA 696 whereby the defunct East Africa Court of Appeal stated: “A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” See also: Gideon Wasonga & Others vs. The Attorney General & Others (Civil Appeal No. 37 of 2018) [2021] TZCA 3534; Salim O. Kabora vs. TANESCO Ltd & Others (Civil Appeal No. 55 of 2014) [2020] TZCA 1812 and; Soitsambu Village Council vs. Tanzania Breweries Limited & Another (Civil Appeal No. 105 of 2011) [2012] TZCA 255 (17 May 2012) TANZLII. Despite such requirement, for interest of justice and in consideration of the peculiar circumstances in this matter, I am of the view that this Court cannot determine this matter without making reference to the data in the eCMS so as to resolve the controversies between the parties. While this defeats the purpose of preliminary objection, it is evident that there is a lot at stake to the applicant’s prejudice. Page 6 of 8 In respect of the foregoing, I took the liberty to search the details of this case in the eCMS. Upon doing that I found three cases appeared on display as Labour Revisions with Numbers: 19159/2024; 19158/2024 and 2189/2024. However, upon opening the digital case files on the one with No. 19159/2024 and 19158/2024, I found both appeared to be filed as Tax Appeals. The former being submitted on 18.12.2023 and the later on 27.01.2024. The documents filed in the two applications are stamped by the Court and the date appearing in the stamp is 18.12.2023. These documents are the same as the ones filed in the matter at hand. There are also no records showing that either of the two were ever attended to. The two were marked filed on 06.08.2024, the date of the last session of this application prior to this Ruling. In the premises, I find it obvious that there was a glitch in the eCMS that caused the former applications to disappear for a while and resurfaced later causing the applicant to file other applications as allegedly advised. This was evidently a technical error occasioned by the system and not the applicant’s fault, thus rendering benefit of doubt to be accorded to the applicant. While there could have been made efforts to resolve the anomaly and for such technical issue to be noted and for the Court to address the issue, still I do not find the applicant to be in fault as such, as to deserve his matter being dismissed on account of being time barred. In my considered view, the circumstances call for application of the overriding objective principle to safeguard the ends of justice. Invoking the overriding objective principle, I hereby Page 7 of 8 take note of the first application filed on 18.12.2023 that somehow disappeared from the system causing the applicant to file other subsequent applications and consider the same to be the date the challenged Revision was properly filed in this Court. This is in further consideration of the fact that if it were a normal civil suit under which filing fees are payable, the receipt would have sufficed to prove the date of filing as the same receipt is usually used to file subsequent applications where the system malfunctions in such manner. However, in the matter at hand, which is a labour matter under which filing fees are exempted, the court is not in the position to rely on receipts to verify the date of filing. Under the premises, the cases appearing on the system with the same documents filed suffices to move this Court to invoke the overriding objective principle as hereinabove done. From such stance, computing from 06.11.2023 to 18.12.2023 it is exactly 42 days rendering the 1st application being filed within time. In the foregoing, the preliminary objection is hereby overruled. Considering that this is a labour matter, I make no orders as to costs. Dated and delivered at Moshi on this 30th day of August, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 8 of 8