ebrahim haji charitable health center vs mashaka kawimba 2018 tzhcld 12 2 march 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 264 OF 2017 EBRAHIM HAJI CHARITABLE HEALTH CENTER........... APPLICANT VERSUS MASHAKA KAWIMBA............................................. RESPONDENT RULING Date o f Last Order: 13/02/2018 Date of Ruling: 02/03/2018 L.L.Mashaka, 3 This is a ruling in respect of preliminary objection raised by the respondent through Learned Counsel Thomas Chubwa that the application for revision filed by the applicant Ebrahim Haji Charitable Health Center is time barred. During the hearing of the preliminary objection the applicant was represented by Ms Aziza Mhina, Advocate and Mr. Thomas Chubwa, Advocate represented the respondent. In support of preliminary objection, Learned Counsel for the respondent argued that before there was a preliminary objection filed by the respondent against the application filed by the applicant through Advocate Shayo that the application was time barred. That the applicant through Advocate Shayo received the CMA award on the 09th May 2017, on a 1 uesday and the same is admitted and to have been received on the said date as shown in the Chamber summons and affidavit deponed at paragraphs 9 and 12. He explained further that the expiry date of 6 weeks or 42 days was supposed to be on the 19th June 2017 which was on a Monday but the applicant filed the present application on 20/06/2017, which is out of time, as per Section 91(1) (a) of the Employment and Labour Relations Act No. 6 of 2004 which states clearly the time limit to file a revision within 6 weeks. He referred Section 4 of the Interpretation of Laws Act, Cap 1 R.E 2002, which states clearly that serving of documents starts soon after receiving that document. Learned Counsel concluded that due to filing of this application out of time, this Hon. Court has no jurisdiction to entertain this matter and prayed for the same to be dismissed. In response, Learned Counsel Mhina submitted that the applicant was not disputing to have received the CMA award on the 09th May 2017 and filed this revision application on 20th June 2017, meaning that the applicant filed this application on the 42nd day from when the award was served and do concur with Learned Counsel for the respondent on the provisions of Section 91(1) (a) of the Employment and Labour Relations Act No. 6 of 2004. She stressed that pursuant to Section 19 (1) of the Law of Limitation Act, Cap 89, R.E 2002 provides on how the limitation of time is computed. That "in computing the period o f limitation for any proceedings the day from which such period is to be computed shaii be excluded/' With that provision, Learned Counsel argued that it is quite clear the applicant filed this application on the 42nd day from when the CMA award was served. She referred this Court to the case of Serengeti Breweries Ltd Vs. Joseph Boniface, Civil Appeal No. 150 of 2015, Court of Appeal of Tanzania at Mbeya (unreported), where Learned Counsel promised to provide the copy thereto but till the composition of this ruling the same was not done, that the Court of Appeal of Tanzania observed at page 9 the appellant filed his revision within time as he was given leave of 14 days to file revision on 30th April 2015 and filed the same on 14/05/2015. By this observation, Learned Counsel submitted that it is clear that the Court did adopt the provisions of Section 19(1) of the Law of Limitation Act when computing 14 days from 30th April 2015 to 14/05/2015. Lastly, she submitted that it is clear Learned Counsel for the respondent is miscalculating the days from when the award was served to the applicant and to when it was filed in this Court and therefore prayed for this preliminary objection to be overruled for lack of legal back -up. Learned Counsel for the respondent had nothing to rejoin. The issue at hand for determination by this Court is whether or not the application for revision by the applicant is time barred. It is undisputed that the CMA award was delivered on the 02/05/2017, that the applicant employer was served with the CMA award on 09/05/2017 and the application was filed before this Court on the 20/06/2017. Generally, the law that governed time limit for filing revision application of CMA award in this Court is the Employment and Labour Relations Act No. 6 of 2004 under Section 91 which provides that; "'Section 91.-(1) Any party to an arbitration award made under section 88(8) who alleges a defect in any arbitration proceedings under the auspices o f the Commission may apply to the Labour Court for a decision to set aside the arbitration award- a) Within six weeks o f the date that the award was served on the applicant unless the alleged defect involves improper procurement; b) I f the alleged defect involves improper procurement, within six weeks o f the date that the applicant discovered that fa c t" But, the issue on controversy is computation of time limit from when the applicant was served with the award till when the application was filed in this Court. Learned Counsel for the applicant had prayed to this Court to resort to the provision of Section 19 (1) of the Law of Limitation Act, Cap 89 R.E 2002 as the Employment and Labour Relations Act No.6/2004 does not provide for computation of time from when an award is served to the party till filing of revision application. That they were served with the award on 09/05/2017 and filed the revision application on 20/06/2017. It was the contention of Learned Counsel for the respondent that the same was to be filed on the 19/06/2017. This Court is of the finding that the application for revision was filed within time when computing from the date the applicant was served with the award on the 9th May 2017 till on the 20 June 2017 when the application was filed. The provision of Section 19(1) of the Law of Limitation Act, Cap 89 RE 2002 provides for the computation of time as rightly submitted by Learned Counsel for the applicant that, In computing the period o f limitation for any proceedings the day from which such period is to be computed shall be excluded." Therefore in the circumstance, the application for revision was filed on time on the 20th day of June 2017. Consequently the preliminary objection is hereby dismissed as explained. The hearing of this application for revision is ordered to proceed on merit. Accordingly ordered. L.L.Mashaka " JUDGE 02/03/2018