eldridge investment t limitedvs husna kassim 2022 tzhcld 224 20 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 381 OF 2021 BETWEEN EDGE INVESTMENT (T) LIMITED............ .T....APPL VERSUS V HUSNA KASSIM RESPONDENT RULING 31st March & 20th May 2022 Rwizile, J U This application is for extension of time: The applicant is applying for time to lodge a notice of ap'pe^Ht of»time. This is against the Judgement and Decree of^^^^^^^ron No. 881 of 2018 dated 27th March 2020. Briefly, t^tejsjiq^Bnt was a probationary employee. She was employed by^he^^D&amin an oral dated 23rd June 2014. On 15th May 2015 by a letter, the respondent was suspended. Thereafter was issued with the letter to show cause to why should not be terminated for being suspected of stealing 100,000.00TZS. On 17th May 2015, the respondent replied the letter and denied all charges. On 18th May 2015 the applicant called the respondent to attend disciplinary hearing. She was found guilty and i terminated on 01st June 2015 and was paid terminal dues. Aggrieved, the respondent filed a dispute to the Commission for Mediation and Arbitration (CMA). The award was in favour of the respondent. The applicant was ordered to pay the respondent TZS 2,544,230.00 being 6 months compensation, notice and severance as terminal benefits. The applicant was aggrieved and unsuccessfully filed Revision Noxsti o^loi8 before this Court. Still aggrieved, he is now advancing, to the Court of Appeal, but found herself out of time, hence this applicator^. The application was supported by thj^l^daw^Carl Davis, Principal Officer of the applicant. |T The hearing of this applica|fcw was orally made. The applicant enjoyed the service of Carlo's^^^pthbety, learned counsel, whereas the respondent wag^^^^ted by Edward Simkoko, from TASIWU- a trade union, Si^^^dng^he^pplication Mr. Carlos submitted that the decision was given on 27th March 2020 and the reason for delay was due to the conduct of the trial judge and so reported the matter to PCCB. The matter was being investigated and the record were taken. He continued to submit that the applicant was represented by the personal representative who gave the applicant bad advice. 2 Mr. Carlos submitted that the judgement and decree of CMA were not proper. There was an illegality as it acknowledges the respondent as an employee when he was not. To support his submission, he cited the case of Charles Christopher Humprey Kombe v Kinondoni Municipal Council, Revision No. 81 of 2017 at page 6. The learned counsel therefore asked this court to grant the application Opposing the application, Mr. Simkoko submitted^that the'applicant did not show cause for delay. He stated further ,thWdiscretic>n of the court to extend time should be considerate and, shouldftgrounded on sufficient cause. He then stated that thodecisiohvpflhe court was issued on 27th March 2020, while this applieatiorrW§§^led seventeen months later. The applicant therefore aske^^^^urt hold that delay was inordinate, and that it was actuated pyjaggardness and that she did not prove that the record wa^a^^^^PcCB. Mr. Simkoko therefore asked this court to dismiss feJlppKcation. In re-joining, Mr. Carlos submitted that there was a delay, but there no evidence of how the respondent will be prejudiced if the application is granted. He argued further that the applicant has shown there was illegality, because the respondent was in probation. He stated that other 3 points of delay were that the records were taken to PCCB for investigation and so delayed. Mr. Carlos stated that all was done based on the opinion of the personal representative who report to PCCB. He stated that there was no negligence on party of the applicant. He asked, for interest of justice, this application be granted. After going through parties' arguments, the Jl^irt has to determine whether there is sufficient reason for deiayiftgJo<fiie notice of appeal. It is an established principle c®law that ^notice of appeal against the decision of the High Court has tchbe filed within thirty days from the date of the judgement. This is provided under Rule 83(1)(2) of the Court of Appeal Rules G.N. N0.J368 df2009, that: -. (1) Anyypersojffyvho desires to appeal to the Court shall lodge a ■en notice in duplicate with the registrar of the High Court {2y%Eyery notice shall, subject to the provisions of Rules 91 and 93, be so lodged within thirty days of the date decision against which it is desired to appeal. 4 Further under section 11(1) of the Appellate Jurisdiction Act [CAP 141 R.E. 2019], this is empowered to extent time to file a notice of appeal, the law states: - Subject to subsection (2) the High Court or where an appeal lies from a subordinate Court exercising extended powers, the subordinate Court concerned, may extend the^t/mp^gbing^otice of intention to appeal from a Judgement dfithe High Court or of the subordinate Court concerned, for makir^ai^affililiation for leave to appeal or for a certificate that^^^^^s, a fit case for appeal, notwithstanding that theSme ^^wg the notice or making the application has aiready>ex:piredj^ As the law provides, tim^^^^be extended when the applicant shows good cause fc^C^a^ A good cause for delay depends on the circumst^ce^o^gchcase. In^b^^j^^Lyamuya Construction Company Ltd V. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) the following principles were laid down: - 1. The delay should not be inordinate 5 2. The applicant should show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; 3. If the Court feels that there are other sufficient reasons such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. The applicant's reason for delay was stated that aparWrom theJooking for an advocate to assist him, she also had tftgrecords taken to the Prevention and Combating of Corruption Bureaulfor ihvestigation(PCCB). On my perusal of the record, it is appaiwtwattne Judgement and Decree of Revision No. 881 of 2018, was delivered on 27th March 2020. This application was filed on 08®pctobeT2021. This shows there was a lapse of time of over eighteekmbhJhs>The applicant did not show how looking of an advocatejoqk tha£ long. If indeed that was a reason, then it was made negligently. The applicahteas well stated that after the decision from this Court came out, she complained to the PCCB, which started to do investigation. The applicant was well aware that taking "extra-judicial" steps is a matter of choice. She had the choice to complain for any misdeed she felt was done by the trial judge. But this did not prevent her from taking judicial measures. Neither the applicant nor the personal representative who she 6 alleged advised her to take that step, does not know that the decision of this court can only be set aside by the Court of Appeal. The applicant also in her submission stated that there was illegality in the decision of the court and the award by the CMA. He stated that the respondent at CMA was termed as the employee of the applicant while she was not. It has been held times without numberthat for Itejality to hold, it must be apparent on the face of the judgement^bthe case of Finca (T) Ltd and Another v Boniface Mwalukisap Civil Application No. 589/12 of 2018, it was held that: "It was held that illegality's a goodlground for extension of time. But in order to plead illegalitysuccessfully, it must be glaringly apparent on theVaceofthe record' In this case.jilleqality^Bated is not in the face of the record. This is because^in^rafe^^establish that the respondent is not an employee of the applicantpthere must be long drawn arguments to prove so. Conclusively, I have to state clearly that when a party who loses a case, does not take judicial steps to remedy the right infringed, and decides to move around complaining elsewhere does so at his own choice and his own peril. This habit must be discouraged since court actions have specific time, which parties should abide by, unless they have good reasons for not doing so. This court therefore considered time delayed is not only shockingly inordinate but also unopenable This application has no merit. It is dismissed. I make no order as to costs. 8