edson mchomba vs prasavvajjo tanzania ltd 2021 tzhc 6865 13 october 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA MOSHI DISTRICT REGISTRY AT MOSHI MISC. APPLICATION NO. 8 OF 2021 (Originating from Labour Dispute CMA/KLM/MOS/ARB/66/2020 Commission for Mediation and Arbitration for Kilimanjaro at Moshi) EDSON M C H O M B A ...... .... APPLICANT VERSUS PRASAVVAJJO TANZANIA LTD ..................... . RESPONDENT RULING MUTUNG1 .J. The applicant is seeking for extension of time to apply for Revision against the Award of the Commission for Mediation and Arbitration for Kilimanjaro at Moshi (the CMA) in Labour Dispute No. CMA/KLM/MOS/ARB/66/2020 delivered on 25th June, 2020. The application is brought under Rules 24(1), 24(2) (a) (b) (c) (d) (f), 24 (3) (a) (b) (c) (d), 28(1) (b) (c) (d) .(e), 55 (1), 56 (1) and (3) of the Labour Court Rules, 2007 G.N. No. 106 of 2007 (Labour Court Rules) and is supported by an affidavit dully sworn by the applicant. The respondent on Page 1 of 8 the other hand, after service did tile a counter affidavit thereto. The respondent was represented by Ms. Zuhura Twaiib learned advocate, however, both the respondent and her advocate defaulted appearance twice when the matter was scheduled for hearing. No reason or notice of absence was advanced before this Court hence the matter proceeded Ex-parte. Supporting the application, Mr. Engel berth Bon ip ha ce learned advocate submitted, on 27th April, 2020 the applicant filed a labour dispute before the CMA and on 18th March, 2020 both parties were summoned to appear for mediation (Annexture “ ED2”). Mediation was conducted by R. Massawe and marked failed. A certificate on non-settlement and notice to refer the matter were issued accordingly. It was further agreed on 1st June, 2020 the matter would come for Arbitration. As fixed both parties appeared before the CMA and the Arbitrator scheduled the arbitration hearing be conducted on 6th July, 2020 through a summons (Annexture “ED4”). Before the scheduled hearing date (on 25/6/2020) the Arbitrator heard the dispute Ex-parte and pronounced the Award on the same day in favour of the respondent. This Page 2 of 8 was done in collaboration with the respondent without notifying the applicant. The Arbitration was in essence conducted pre-mafurely before the fixed hearing date. Thus, the Arbitral Award granted by the Arbitration curtailed the applicant’s right to be heard which is a constitutional right enshrined in Article 13(6)(a) of the National Constitution, 1977 as amended from time to time. 'It was Mr. Boniface’s further argument that, the Award was procured out of the Arbitrator’s misconduct as provided for by Section 91(2)(a), (b) and (c) of Employment and Labour Relations Act Cap 366 R.E. 2019 (the ELRA). He added, after the Award was delivered, the applicant on 6th July, 2020 was notified by the CMA the dispute had finally been determined. He then requested for a copy of the Award, only to be told by the clerk (one Afra) the file was missing. He ultimately on 28th January, 2021, was issued with a copy of the Award and started making follow up to file a revision application. However, before doing so, the applicant fell sick and had to isolate himself in hospital. Thank God he pulled out after 21 days but time to file his revision had lapsed, thus the only remedy available to him was to file for extension of time. Page 3 o f8 The first application he filed had discrepancies and the same was withdrawn hence the current application. The learned advocate contended, it is a rule of thumb that where a point of law involves illegality of the decision, by itself constitutes sufficient reason to grant extension of time. He referred the court to the case of Juto Ally Vs. Lucas Komba and Alovce ftAsafiri Mzika. Civil Application No. 454/17/2019 (CAT -unreportedl where the case of Kashinde Machibvd Vs. Hafidhi Said, Civil Application No. 38/2009 (CAT) was quoted with approval therein. Borrowing leaf from the sound observations of the Court of Appeal and the surrounding events embodied in the matter at hand it was the advocate’s settled view, there is an illegality. The learned counsel buttressed, granting extension of time is subject to the applicant accounting for each day of delay. Even though in case of illegality on the face of record, the same suffices as a sufficient reason. In the upshot he prayed, on the ground of illegality, the Arbitrator’s misconduct and irrationality in awarding the Award, this Court should be pleased to grant the application. Following my serious reading of the CMA records, parties’ affidavits and applicant’s submission, the pertinent issue for Page 4 of 8 determination is, whether the applicant has demonstrated sufficient cause to be granted extension of time to file Revision out of time. It is undisputed that, an application for extension of time is entirely upon the discretion of the court to grant or not. This discretionary power, is judicial in nature and must be confined to the rules of reason and justice. In Benedict Mumello V Bank of Tanzania. E.A.I.R [20061 Vol. I, the Court of Appeal held that: - “It is trite law that an application for extension of time is entirely in the discretion of the Court to grant or refuse it and that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause" Although the Court has discretionary powers, it is the duty of the applicant to advance sufficient reasons for the court to be persuaded to exercise its discretion in favour of the extension sought. (See Shanti Vs. Hindocha & Others [1.9731 E.A. 207). In the instant matter, the applicant substantially pleads illegality in the CMA's proceedings and Award to be Page 5 of 8 revised. According to applicant’s affidavit and submission, on 1st June, 2020 when the matter was scheduled for arbitration, the same was adjourned to 6th July, 2020, but for no apparent reason, the matter was rescheduled and an Award delivered ex-parte on 25th June, 2020. He also averred that after a long wait on 20ih January 2021 was issued with the copy of the Award but could not file the application for revision on time as he was hospitalised. However, the fact that he was sick was never substantiated by any medical reports as proof. On the other hand, the counter affidavit shows, although on 1st June, 2020 the matter was scheduled for hearing on 6ih July, 2020 but the CM A rejected the same and changed the date to 18th June, 2020. However, on the said date the applicant defaulted appearance and was nowhere to be found hence the matter proceeded ex-parte on 19, 24th and 25th June, 2020. I join hands with Mr. Boniface that the ex-parte arbitration hearing and Award on the face of record would seem was reached in a manner subject of scrutiny by a higher authority. In the case of Principal Secretary, Ministry of Defence and National Service Vs. Devram Valambia (19921 TLR 182, the Supreme Court of this land: - Page 6 of 8 “In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and, if the alleged illegality be established, to take appropriate measures to put the matter and there cord straight." With the above authority in mind, I am fortified since there is an alleged illegality, then this court has a duty to extend time for the purpose of ascertain the legality of the Arbitral Award. Accordingly, the application is granted as sought. The applicant is given 14 days from the date of this ruling to file the intended application for revision. This being a labour matter, I grant no orders as to cost. It is so ordered. V----------- - B. R. MUTUNGI JUDGE 13/10/2021 Ruling read this day of 13/10/2021 in presence of Mr. Engelbeth Boniphace the Applicants’ Advocate. Page 7 of 8 RIGHT OF APPEAL EXPLAINED. Y -— j B, R. MUTUNGI JUDGE 13/10/2021 Page 8 of 8