FINAL RULING EFC

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 21181 OF 2024 CASE REFERENCE NO. 202408281000021181 EFC TANZANIA M.F.C LIMITED .............................. APPLICANT VERSUS TEDDY SYPRIAN MALLYA .............................. RESPONDENT RULING OPIYO, J. This is an application for extension of time by the Applicant within which she can file notice of appeal to the Court of Appeal against Labour Revision No. 952 of 2018 which judgment was delivered on 11th September 2020 before Hon Aboud J. The application is supported by the affidavit sworn by applicant’s principal officer, one Adam Kessy filed in this court on 28th August 2024. 1 In this case the applicant was represented by Stephen Mayombo, Learned Counsel while the respondent was represented by and Kassim Said Masimbo, learned counsel. The application was heard by way of written submissions. Through the applicant’s affidavit in support of the application, two grounds were raised, namely illegality and technical delay. Bringing the application home Mr. Mayombo in regard to the first ground of illegality submitted that claim of illegality constitutes sufficient reason for extension of time as long as it is pleaded to be on the face of record as per the decision in VIP Engineering and Marketing Limitedd and Three Others Vs Citibank Tanzania Limited, Consolidated Civil Reference No. 6,7 and 8 of 2006 CA unreported thus; “It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time under rule 8 regardless of whether or not reasonable explanation has been given by the applicant under the rule to account for the delay” He submitted that, upon the delivery of the judgment in respect of Labour revision No. 952 of 2018, the applicant discovered that the said judgment was tainted with illegality on face of records as the applicant was denied right to be heard (right to be cross examined), meaning that her witness, 2 DW1 was not cross examined, the fact which in his view amounted to violation of the right to be heard as the applicant was not afforded with an opportunity to test the veracity of the evidence of such witness, hence denied the Respondent right to be heard contrary to Rule 13 (5) of GN. 42. The counsel invite the court to consider the decision of Ramadhani Omary Mbuguni (A Legal representative of the late Rukia NdaroVs Ally Ramadhan and another Civil Application No. 140/12 OF 2023 at page8 where it was held that:- “…he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right.” From that, he argued that in the current case, the judge ignored the issue of right to cross examination and proceeded to reverse the award of CMA, therefore, although he may have decided what is right, but he has not done what is right. He argued, that justice should not only be done, but also manifestly and undoubtedly seen to be done. In his view, the judge did not do what is right since he admitted that the witness (DW1) was not cross examined and failure to do so amounted to violation of right to be heard, he ought not to ignore this fact in reaching the impugned decision. He therefore 3 is of the view that, the court ought to have rectified this matter before awarding compensation basing on uncross examined testimony. In the basis of that, it is his submission that, the judgment in respect of Labour revision No. 952 of 2018 is tainted with illegality that need to be corrected if application is granted and notice of appeal is eventually filed. On the second issue of technical delay, the counsel submitted that, the delay made by the applicant was not deliberate rather technical as the applicant had never rested to pursue her rights in Courts’ corridors. That, in 2021 the Applicant successfully lodged notice of appeal and letter requesting for copies of proceedings and judgment against Labour revision No. 952 of 2018, but the said notice of appeal was struck out by the Court of Appeal on 21st August 2024. Upon being struck out, the applicant immediately on 28th August 2024 lodge this application for extension of time to file the notice of appeal. He therefore argued that, in the chain of events, from the moment the decision sought to be challenged i.e (Labour Revision No. 952 of 2018) was pronounced on 11th September, 2020 to the time when the current application was filed on 28th August 2024 as above narrated, the applicant has been diligently in court’s corridors pursuing her right until 21st August 2024 when the Notice of appeal was struck out on technical 4 grounds. He therefore, prayed for the application to be granted on these grounds. In response, the respondents counsel, Mr. Kassim Said Masimbo, on first ground of illegality argued that; the applicants claim that he was denied right to be heard as DW1 was not cross examined is misconceived and misleading to the court, and utmost intended to cause injustice to the respondent. He argued that, the applicant before the CMA properly examined DW1 in examination in chief, therefore the claim that they were denied right to be heard due to absence of cross examination of her witness by the other side (respondent) is not true. If at all, it is the ground to be properly raised by the respondent herein and not the applicant who on several occasions failed to bring DW1 for cross examination by the respondent. Further that, after all, the issue of non-cross examination of DW1 was well dealt with and decided by the High Court as per page 9 of the judgment. He argued that, since the issue of non-cross examination was not brought by the applicant before the labour court, he cannot appeal against the same point before the Court Appeal which he did not challenge in the High Court. That, not filing revision against the same point to the labour court means the applicant had agreed with it as award by CMA was in her favour. She cannot turn now to 5 prefer appeal against that same issue she was originally content with and did not contested the same at the High Court. This makes her application irregular that cannot be granted by this court. On the second issue of technical delay, Mr. Masimbo submitted that, from the records, it is clear that upon determination of Labour Revision No. 952 of 2018 the applicant was extremely negligent in handling the appeal process to the Court of Appeal. This is because, she had filed two notices of appeal both out of time. The first notice of appeal was filed on 4th November 2020 while the judgment was delivered on 11th September 2020. The same was consequently withdrawn for being filed out of time on the 26 October 2021 that is 110 days from the date the extension of time was granted. He continued to submit that, in civil application no. 51/18 of 2023 before the court of appeal, the applicant conceded that the notice of appeal he filed after being granted extension of time was indeed filed out of time leading to it being struck out. He continued to argue that, by filling the notice of appeal out of time shows the applicant is always negligently handling the matter. He made reference to the case of Nyanza Roadwork Limited v Giovanni Guidon, civil appeal number 75 of 2020, CAT Dodoma, in which the court stated that, at any rate, even assuming the respondent illness prevented him 6 from referring his dispute within time, there was no explanation why he delayed in applying for condonation for as long as more than two months from 13th June 2014 and unfortunately the learned judge directed his attention to the respondent’s illness in absence of evidence on how was it material to not only the delay, but also filing application for condonation immediately after the lapse of 30 days. He again argued that, the applicants counsel was not supposed to file the notice of appeal on 26 October 2021 while the ruling granting him extension of time was delivered on the 5 July 2021 as he was already out of time. It is therefore respondent’s submission that, this court be guided by the authority above in dismissing this application for lack of merit as the applicant has not advanced any plausible reason for the court to grant the sought extension of time. His further argument is that, the applicant has not accounted for each day of delay, and she was not diligent in handling the matters to the standard it should. Lastly, he submitted that, by the above facts, it is evident that this is the second application by the applicant seeking for extension of time to file notice of appeal against the decision in labour revision no. 952 of 2018 7 after the applicant’s failure to comply with the court order in Miscellaneous Labour Application No. 66 of 2021 that granted him extension of time file a notice of appeal out of time. This, in his view, depicts negligence of the highest degree as the court orders must always be complied with., But the applicant did not comply and what she is doing is clear abuse of court process as this court is functus officio to deal with the application. It is a trite principle of law that in an application for extension of time like the one at hand, the applicant is required among other things to demonstrate good and sufficient cause for delay for the court to grant the application. The central question for this court’s determination is whether there is sufficient material before this Court for it exercise of its discretion in the manner it is supposed to. In an attempt to bring her grounds for delay home, the applicant alleged illegality in the impugned decision of the High Court and his delay being mere technical rather than a result of negligence. In the case of Lyamuya Construction Company Limited v The Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No 2 of 2010, it was held that in order for the applicant for extension of time to be successful must demonstrate a number of factors including valid explanation of her reasons for the delay, must 8 account for each day of delay, the application be brought promptly and that the applicant has to be diligent. Also that, time may be extended if there is illegality apparent on the face of records of the impugned decision. Starting with the first ground of alleged illegality, it is true based on the holding in the case of Attorney General of Zanzibar V. Laemthong Rice Co. Ltd. Another Civil Application No. 729/15 Of 2023 Kerefu J, cited by the applicant’s counsel that even when there is considerable delay in an application, but if pertinent issues have been raised, like allegation of illegality, irregularities and impropriety the court’s lenience is usually attracted and positively exercise its discretion in extending time to the applicant’s advantage. This is especially when those pertinent issues negatively affected the applicant. However, in the case at hand the facts are to the contrary in that the illegality raised is brought in the attention of this court in a clear misconception. I am saying so because the applicant claims he was not afforded the right to be heard by not cross examining his own witness, DW1. This is a claim better brought by the (other) adverse party as for the applicant, the one alleged not to have been cross examined is his own witness who had a chance to state in examination in chief the 9 applicant’s evidence without being challenged through cross examination by the respondent, if at all. It is therefore surprising how someone who have been granted a chance to be heard free of challenge can be the one to complain on behalf of the side which decided not to appeal as it is the one who was not availed with a chance to be heard. From the records, it is vivid that the respondent, who were the applicants at the high court labour revision indeed raised this issue at that level and the same was extensively dealt with and dismissed by the high court. This issue was not brought by the current applicant who was the then respondent at the revision level. She cannot therefore raise it at this level as the ground of illegality in the context she wishes to. She never filed revision to that effect to the high court if she was not satisfied with the same at CMA. In other words, the High court did not deeal with the matter in the context referred to by the applicant in this application. Therefore, it can not illegality on face of record contemplated in such application as good cause for extension of time. In other words, the applicant was not offended by non-cross examination of her own witness. That is the reason he did not file revision to the High Court 10 over the matter. In my considered view, at the high court the issue was still determined in his favour as the High Court dismissed respondent’s complaint about it. Intending to raise it at the Court of Appeal now, without doing so at the High court is irregular as correctly put by Mr. Masimbo. The applicant cannot intend to appeal against alleged illegality by the CMA that she did not challenge before the high court. Therefore, the alleged illegality since it is alleged to have emanated from CMA proceedings cannot be a ground for extension of time to file a notice of appeal to the court of appeal against the decision of the High Court. This issue therefore fails. On the issue of technical delay, the court has to determine whether the cause for delay is merely technical rather than applicant’s negligence. The issue of technical delay was well stipulated in the case of Fortunatus Masha v William Shija & Another [1997] TLR 154 where the court held that: - "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but has been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case, the applicant had acted immediately after the pronouncement of the ruling 11 of the court striking out the first appeal. In these circumstances, an extension of time ought to be granted." In the current case the decision in labour revision no 952 of 2018 was delivered on 11th day of September 2020 in absence of applicant but on 4th day of November 2020 the applicant filed notice of appeal which he later withdrew, consequently filing Miscellaneous Labour Application no, 66 of 2021 on 15th March 2021 before this court for extension of time to file fresh notice of appeal out of time. The said application was granted but again in absence of the applicant on 5th July 2021. Irrespective of being out of time the applicant proceeded to file the notice of appeal again out of time on 26 October 2021 which ended being struck out on 21st August 2024 for the same reason of being time barred. Upon being struck out, the applicant immediately on 28th August 2024 for the second time filed this application praying yet for another extension of time to file the notice of appeal out of time. Although it is on record that, all along prior to this application, the applicant has been in court pursuing different matters relating to this case, but there are some serious unexplained lapses in between the applications and her 12 actions that are far from being prompt in pursuing the matter that could save the applicant from negligence allegations and benefit from technical delay as ground for extension of time. From submission, the applicant filed the first notice out of time and even the second one as well after he was granted extension of time by this court with delay of over 30 days in between. Decision was delivered on 11th day of September 2020, but she filed notice on 4th November, 2020 with delay of over 50 days. Again, when time was extended for her to file notice of time on 5th July 2021, he filed notice on 26th October after more than 90 days in between. All these periods have not been explained by the applicant. Furthermore, it is noted that applicant’s attendance in court has never been impressive as in all important decisions had been delivered in her absence. In order to benefit from the principle of technical delay the former application ought to have been filed within time to show promptness, but in this matter, that was not the case. In her entire submissions the applicant intentionally avoided talking of her actions after application no 66 of 2021 was concluded granting her extension of time to file notice on how she could not comply to that. This as correctly argued by the respondent is a serious negligence, the 13 applicant cannot therefore benefit from the pledged principle of technical delay in such situation. In the circumstance, the ground advanced by the applicant do not warrant granting extension of time applied for. The entire application therefore lacks merits, it is accordingly dismissed. M. P OPIYO, JUDGE 11/12/2024 Ruling is delivered in presence of Almachius Vesato Personal Representative for respondent and in absence of the applicant. 14 15