Ernest Yohana Kika v Chama Cha Ushirika Cha Wafugaji (W) Tanga

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT TANGA MISCELLANEOUS LABOUR APPLICATION NO. 000032301 OF 2024 ERNEST YOHANA KIKA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS CHAMA CHA USHIRIKA CHA WAFUGAJI (W) TANGA .............................. RESPONDENT / DEFENDANT RULING CHABA, J The present application is one for extension of time. The Applicant, Ernest Yohana Kika, seeks leave of this Court to file, out of time, an application for revision challenging the award of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/TAN/07/2023/01. The brief background giving rise to the present application, as gathered from the record, is as follows. The Applicant was a party to Labour Dispute No. CMA/TAN/07/2023/01 before the Commission for Mediation and Arbitration for Tanga, at Tanga. The CMA Arbitrator delivered an award on 13 October, 2023 th , which was ultimately decided against the Applicant. Aggrieved by that award, the Applicant timeously instituted Labour Revision No. 16 of 2023, which was Page. 1 subsequently electronically titled Misc. Labour Application No. 537919 of 2023. According to the record, when the matter was placed before Hon. Ndesamburo, J., for hearing, it was observed that the application suffered from procedural defects, particularly non-compliance with the mandatory requirements of Rules 24(2)(d), 24(2)(f) and 24(3)(c) of the Labour Court Rules, 2007, G.N. No. 106 of 2007. Consequently, on the 10 December, 2024, the learned Judge struck out the revision th for being incompetent. Following that ruling, the Applicant filed the present Miscellaneous Labour rd Application on 23 December, 2024 , thirteen (13) days after the striking out of the earlier revision. He now seeks extension of time within which to refile an application for revision challenging the CMA Award. At the hearing of the application, the parties consented to have it disposed of by way of written submissions. The Applicant was represented by Mr. Ladislaus Ngomela, learned advocate, while the Respondent was represented by Mr. Zodiac Lyimo, its Chairperson, who appeared as a Personal Representative. In support of the application, counsel for the Applicant submitted that the delay occasioned between the striking out of the earlier revision and the filing of the present application was neither prolonged nor inordinate. He contended that the Applicant had demonstrated diligence throughout the prosecution of his grievance. Learned counsel placed considerable reliance on Attorney General v. Tanzania Ports Authority & Another (Civil Application No. 87 of 2016) [2016] TZCA 897 (12 October 2016) and submitted that the intended revision raises substantial illegalities in the CMA Award. Page. 2 The alleged illegalities identified by counsel included breach of the rules of natural justice on the ground that the Applicant was terminated without being heard; denial of his counsel’s opportunity to examine him in chief, allegedly contrary to section 155(1) of the Evidence Act; and misapprehension of the evidence relating to Exhibit M2 by the Arbitrator. Counsel accordingly urged this Court to find that the alleged illegality constitutes sufficient reason for enlargement of time. In response, the Respondent opposed the application and maintained that it was devoid of merit. As a preliminary point, he contended that the application was incompetent because the Applicant failed to cite the specific enabling provision, namely; Rule 56(1) of the Labour Court Rules, and instead relied upon Rule 24. According to the Respondent, failure to cite the proper enabling provision rendered the application incompetent. On the merits, the Respondent submitted that the Applicant had failed to specifically quantify and account for the period of delay. Reliance was placed on Nada Panga v. Asha Seif & Others (Civil Application No. 312 of 2020) [2021] TZCA 245 (10 June 2021) for the proposition that illegality is but one of the factors to be considered in an application for extension of time and ought to be considered together with the explanation for delay, its length and the diligence of the Applicant. He accordingly prayed that the application be struck out. I have carefully considered the respective submissions of the parties together with the record of the previous proceedings. At the outset, it is important to bear in mind that the power to extend time under the Labour Court Rules is discretionary. Such discretion must, however, be exercised judiciously upon consideration of all the circumstances surrounding the application. Page. 3 To begin with, I find it suitable to first determine and dispose of the preliminary objection raised by the Respondent, namely, that the application is incompetent for failure to specifically cite Rule 56(1) of the Labour Court Rules. A careful perusal of the Notice of Application, Chamber Summons and the Applicant’s affidavit leaves no doubt as to the nature of the relief sought. The Applicant expressly seeks an extension of time to refile an application for revision. The substance and object of the application are therefore readily ascertainable notwithstanding the omission to specifically cite Rule 56(1). In Rocketi Mahega v. Msafiri Musigitani & 3 Others (Reference No. 4 of 2021) [2022] TZHC 3210 (5 May 2022), this Court addressing an objection founded upon wrong citation of law, observed that:- “… I agree with Mr. John Manyama on the correct citation of law. However, this issue should not detain me any more for it is now a settled position of law that wrong citation is not fatal as it is curable under the overriding objective principle…”. The principle emerging therefrom is that wrong or imperfect citation of an enabling provision does not invariably render proceedings incompetent where the Court is otherwise vested with jurisdiction to grant the relief sought and the nature of that relief is apparent. The overriding objective discourages undue elevation of curable procedural defects over substantive justice, though it cannot be invoked to confer jurisdiction where none exists. In the present matter, the Court is clothed with jurisdiction to entertain an application for extension of time under Rule 56(1) of the Labour Court Rules. What occurred was merely an omission to specifically cite that provision; it did not affect the substantive Page. 4 jurisdiction of the Court. Hence, without belabouring the point, I am satisfied that the omission to specifically cite Rule 56(1) constitutes a curable technical defect which does not go to the root of the application. The preliminary objection is consequently devoid of merit and is hereby overruled. I now turn to the merits of the application. The Respondent’s principal contention is that the Applicant has failed to sufficiently account for the delay and that the alleged illegality cannot, as submitted, proceed on a “single-footed track.” The governing provision is Rule 56(1) of the Labour Court Rules, 2007, which provides: “The Court may extend or abridge any period prescribed by these Rules on application and on good cause shown, unless the Court is precluded from doing so by any written law.” The language of the provision makes it clear that the Applicant must demonstrate good cause before the Court may exercise its discretion in his favour. What constitutes good cause was comprehensively addressed by the Court of Appeal of Tanzania in Nada Panga v. Asha Seif & Others (supra), where the Court referred to such considerations as whether the delay has been accounted for, whether it is inordinate, whether the applicant acted diligently, and whether there exists a sufficient reason such as an apparent illegality in the decision intended to be challenged. The Respondent maintained that the Applicant’s case was “barren of any specific period or number of days accounting for the delay”. With respect, that contention is not borne out by the record. The CMA Award was delivered on 13 day of October, th Page. 5 2023. The Applicant filed the initial revision within time. That revision remained before the Court until it was struck out on 10 day of December, 2024 . The present th application was thereafter filed on 23 day of December, 2024 rd . The period immediately following the striking out which falls for consideration is therefore thirteen (13) clear days. A delay of thirteen days, viewed against the background that the Applicant had previously instituted the revision within time and was required to take fresh steps after the earlier proceeding was struck out for procedural defects, cannot reasonably be regarded as inordinate. On the question of diligence, the record equally demonstrates that the Applicant consistently pursued his grievance. He filed the initial revision timeously and, upon its being struck out, approached the Court again within less than two weeks. Such conduct is consistent with reasonable diligence rather than apathy, negligence or indifference. That finding does not, however, dispose of the matter. It remains necessary to consider the alleged illegalities sought to be canvassed in the intended revision. The Applicant has raised a number of grievances against the CMA Award. These include alleged breach of the rules of natural justice arising from his termination through Exhibit M6 without being afforded a hearing following Exhibit M5; the alleged denial of an opportunity to be examined in chief by his counsel; and an alleged misapprehension of the evidence relating to Exhibit M2 by the Arbitrator. At this stage, this Court is not called upon to conclusively determine whether those alleged illegalities are ultimately established. Doing so, in my considered view, would amount to prejudging the intended revision. The relevant inquiry is whether the complaints disclose arguable points of law of sufficient importance to warrant Page. 6 consideration by the Court in substantive revisional proceedings. Having examined the complaints as presented, I am satisfied that they are neither fanciful nor frivolous. In particular, the allegation touching upon the right to be heard raises a procedural question deserving consideration on the merits. Learned counsel for the Applicant also relied on Attorney General v. Tanzania Ports Authority & Another (supra), wherein the Court of Appeal stated: “…a claim of illegality of the decision challenged constitutes sufficient reason for extension of time regardless of whether or not reasonable explanation has been given by the applicant under the rule to account for the delay.…”. I am mindful that an allegation of illegality should not be invoked mechanically. It must be discernible and raise a point of law of sufficient importance to justify the Court’s intervention. In the present case, however, the Applicant does not rely upon illegality in isolation. The material before the Court further demonstrates that the period under consideration is short, that the history of the matter sufficiently explains how the delay arose, and that the Applicant acted with reasonable diligence. Taken cumulatively, those circumstances satisfy this Court that the Applicant has established good cause within the meaning of Rule 56(1) of the Labour Court Rules. The consequence of refusing the present application would, in my considered view, be significant. The dispute concerns the Applicant’s employment and allegations touching upon observance of the rules of natural justice. Although the initial application for revision was struck out on technical grounds, the merits of the impugned CMA Award have never been judicially determined. Refusal of the present Page. 7 application would therefore effectively bring the substantive dispute to an end without consideration of the alleged irregularities forming the basis of the intended revision. I am equally mindful of the right to a fair hearing and access to justice guaranteed under Article 13(6)(a) of the Constitution of the United Republic of Tanzania, 1977, as amended. While procedural requirements must undoubtedly be observed, where good cause has been demonstrated and the law permits enlargement of time, the interests of justice are ordinarily better served by allowing the substantive controversy to be adjudicated on its merits. For the foregoing reasons, I am satisfied that the Applicant has demonstrated and established as well good cause warranting the exercise of this Court’s discretion in his favour. Accordingly, I make the following orders: (a) The Preliminary Objection raised by the Respondent is hereby overruled; (b) The Applicant is hereby granted an extension of time within which to refile an application for revision challenging the CMA Award in Labour Dispute No. CMA/TAN/07/2023/01, delivered on 13 October, 2023 th ; (c) The intended Application for Revision shall be filed within fourteen (14) days from the date of this ruling; (d) Upon filing, the Applicant shall cause the application to be served upon the Respondent, who shall thereafter file the requisite response within the period prescribed by the Labour Court Rules; (e) Each party shall bear its own costs. It is so ordered. th DATED at TANGA this 04 day of September, 2026. Page. 8 Dated at TANGA this 4th of September 2026 . M. J CHABA JUDGE OF THE HIGH COURT Page. 9