Ruling Miscellaneous Labour Application No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI MISCELLANEOUS LABOUR APPLICATION NO. 22527 OF 2024 1. EVANCE G. MINJA 2. MELKIZEDECK B. MOSHA 3. GODBLESS Y. NGOWI .......................................APPLICANTS 4. EDWARD T. MTUI VERSUS 1. BODI YA WADHAMINI SHIRIKA LA HIFADHI ZA TAIFA (TANAPA) 2. BARIKI R. MINJA …………………..RESPONDENTS 3. CHARLES K. SHIO 4. ROBATH H. LYIMO RULING 25th February & 27th March, 2025 MONGELLA, J. The applicants herein preferred this application seeking for this Court to enlarge time so that they can file their notice of intention to appeal to the Court of Appeal against the decision of this Court Page 1 of 14 in Labour Revision No. 37 of 2020. The application is supported by the applicant’s jointly sworn affidavit. The 1st respondent contested the application as reflected in the affidavit of one Theophilo Alexander; her Senior Assistant Conservation Commissioner. The other respondents never entered appearance nor submitted on the legal issues raised in the applicants’ affidavit. In the premises, the matter shall be resolved in their absence. The brief history of the application according to the applicants’ affidavit is that the applicants and the 2nd, 3rd and 4th respondents were complainants in MOS/CMA/M/129/2016 in the Commissions for Mediation and Arbitration (CMA) for Moshi. Apparently, the mediator drafted and signed a settlement agreement without involving the mentioned parties. Dissatisfied with the agreement, the applicants sought revision of the matter before this Court vide Labour Revision No. 37 of 2020. The revision was however resolved in the 1st respondent’s favour. Allegedly, dissatisfied with the decision of this Court, the applicants filed notice of appeal, applied for certified copies of necessary documents and served the 1st respondent. They eventually filed the appeal timely before the Court of Appeal. The same was however found incompetent for not including the 2nd, 3rd and 4th respondents, the original parties. In the premises, the applicants opted to withdraw the application and the Court of Appeal Page 2 of 14 granted their request. The appeal was withdrawn on 07.08.2024. wishing to go back to the Court of Appeal, but being out of time, the application at hand was necessary. The application was heard by written submissions whereby the applicants were represented by Mr. Benedict Bahati Bagiliye, learned Advocate while Mr. George Mayunga Dalali, Principle State Attorney from Office of the Solicitor General, represented the 1st respondent. Submitting in chief, Mr. Bagiliye commenced with a prayer to adopt the applicants’ affidavit. Moving the Court to grant the application, he foremost claimed that the delay was technical as the applicants had filed the notice of appeal on time but had to withdraw the same for being incompetent. He cemented his averment with the case of Fortunatus Masha vs. William Shija and Another 1997 TLR 154 and Rashid Mussa Mchomba vs. Siri Nassiri Hussein Siri (Civil Application No 69202 of 2021) 2023 TZCA 17692 (2 October 2023) TANZLII. Mr. Bagiliye further alleged that the applicants acted diligently as the original notice was filed in time and after withdrawing the same; they are now applying for extension of time to file another notice of appeal. Advancing another reason for being granted the application, he averred that the decision by this Court was marred with illegalities. Explaining the alleged illegality, he contended that mediation is Page 3 of 14 meant to encourage amicable settlement of the dispute between parties to a case. He added that mediation ought to involve parties themselves and not advocates in exclusion of the parties. He supported his averment with Rule 8 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules GN. No. 67 of 2007. Still addressing the illegality, he argued that the settlement agreement ought to be signed by the parties to the dispute and the mediator and not otherwise. In support of his stance, he referred to Section 88 (7) of the Employment and Labour Relations Act [Cap 366 R.E 2019] (ELRA)and Rule 13(2) and (3) of GN. No. 67 of 2007. Mr. Bagiliye faulted the settlement agreement drafted on 16.06.2016 arguing that it did not involve the applicants and lacks their signature, therefore did not comply with the legal requirements in the mentioned provisions. In his stance, the agreement was void and the applicants cannot be bound by it. In the circumstances, he called for the application to be granted so that the illegality is challenged before the Court of Appeal. The learned counsel further insisted that an illegality alone serves as sufficient reason for the Court to exercise its discretion to extend time. He fortified this argument with the case of Principal Secretary, Ministry of Defence National Service vs. Devram Valambhia [1992] TLR 185. He added that even if the applicants would fail to account for each day of delay, the Court would be obliged to extend time so that the illegality can be addressed. He cemented this position with the case of Hamis Babu Ally vs. The Judicial Officers Ethics Page 4 of 14 Committee, The Chief Court Administrator, The Judicial Service Commission and the Attorney General, Civil Application No. 130/01 of 2020 (unreported). Still on the reason of illegality, he showed its importance contending that the question of illegality is so important that even the Court of Appeal in Ngolo s/o Mgagaja vs. Republic (Criminal Appeal No. 331 of 2017) [2021] TZCA 624 (1 November 2021) TANZLII, acted suo motu in granting extension on ground of illegality. He finalized his submissions praying for the application to be granted. In reply, Mr. Mayunga as well commenced by praying to adopt the counter affidavit by one Mr. Theophilo Alexander. He averred that it is trite law that extension of time can be granted by this Court subject to good cause for delay being advanced by applicants. In support of his argument, he referred to Rule 56(1) of the Labour Court Rules GN. No. 106 of 2007. In addition, he contended that while what constitutes a good or sufficient cause has not been explained in the rules, the Court of Appeal has, in several decisions, set prima factors to be considered in assessing the same. He cited the case of Zuberi Nassor Moh'd vs. Mkurugenzi Bandari Zanzibar (Civil Application No .93/15 of 2018) [2018] TZCA 593 (14 December 2018) ZanzibarLII. Mr. Mayunga further contended that there are two questions to be determined in this application being; one, the reasons advanced by the applicants justifying their delay to file the notice of intention to appeal and two, whether the reasons amount to good cause. Page 5 of 14 He pointed out that the applicants’ affidavit shows two grounds being; technical delay arising from the applicants withdrawing previous appeal before the Court of Appeal and illegality on the decision sought to be challenged. Responding in regard to technical delay, the he averred that the appeal was defective and the applicants demonstrated lack of diligence in pursuing the matter. He referred to Lyamuya Construction Co Ltd vs. Board of Registered of Young Womens Christian Association of Tanzania (Civil Application 2 of 2010) 2011 TZCA 4 (3 October 2011) TANZLII. Mr. Mayunga further contended that even if it was assumed that the delay was technical, the applicants failed to account for each day of the delay from the date the appeal was marked withdrawn on 07.08.2024 till 10.09.2024 when this application was filed. He insisted that when technical delay is applied then the applicant must be prompt in taking legal steps upon the previous matter being struck out. He supported this argument with the case of Salvant K. A. Rwegasira vs. China Henan International Group Co. Ltd, Civil Reference No. 18 of 2006 [2006] TZCA 43 TANZLII quoted in Blastus Alois Mgegela vs. Board of Trustees of the Tanzania National Parks (Misc. Labour Application 16 of 2020) [2022] TZHC 10858 (29 July 2022) TANZLII. Addressing the claim of illegality, Mr. Mayunga commenced his arguments by noting that this ground was not novel. He referred to Lyamuya Construction (supra) whereby the issue was discussed. He Page 6 of 14 challenged the claim arguing that there was no illegality as to the decision sought to be challenged. Expounding his position, he contended that the 1st and 6th applicants were represented by a party and an official from a trade union. That, the 4th applicant was also represented by an advocate. He added that the applicants and their representatives were also present during mediation session when the settlement agreement was signed. Further, that the 1st and 6th applicants had admitted to having a personal representative in their affidavit during revision proceedings. Arguing further, he asserted that the applicants had also preferred Miscellaneous Labour Application No. 37 of 2016 before this Court seeking to execute the settlement agreement, but the same was withdrawn. In his view, the filing of the said application demonstrated that the settlement agreement was proper and the revision made thereafter was simply an afterthought. Mr. Mayunga further insisted that the law allows representation, a fact he supported with Section 86(6) and 88(7) of the ELRA, Rule 13(3) (f) of GN No. 67 of 2007 and Rule 5(1) of the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007. In his stance, the mentioned provisions do not preclude representatives from signing settlement agreements. With regard to the impugned agreement, he contended that the same was signed in the presence of the applicants. He challenged that if the applicants were against the representation, then they ought to have raised the issue during mediation. Page 7 of 14 Mr. Mayunga finalized his submissions by stating that the applicants failed to establish the claim of technical delay and illegality as grounds for extension of time. He added that they also failed to account for the 33 days between the appeal being withdrawn and this application being filed. He insisted that the applicants were negligent. He further referred to the case of Tanzania Fish Processors Ltd vs. Christopher Luhangula, Civil Appeal No. 161/1994 (CAT- unreported) quoted in Ombeni Paul Msuya vs. National Insurance Corporation of (T) LTD & Another (Revision No. 367 of 2013) [2014] TZHC 2396 (29 May 2014) TANZLII, insisting on the importance of limitation of time. In the premises, he prayed for the application to be dismissed with costs. Rejoining, Mr. Bagiliye averred that the 1st, 2nd and 3rd applicants did not dispute being represented by an official from a trade union, one Allan Mbwambo. However, he said, the applicants were not involved in the settlement on the date the agreement was reached, but instead their representatives; which defeats the purpose of mediation. He further alleged that the original record does not show which applicants were present on the date the agreement was drafted and signed. As to the allegation that the applicants had not accounted for each day of day, he averred that a copy of the Ruling was not issued on the same day. He alleged that the applicants were served a copy after 10 days and the rest of the days were spent sending documents to Dar es Salaam where he resides. He added that the other days were spent by him reading and preparing this Page 8 of 14 application. According to him, the applicants were diligent and not negligent. He distinguished the High Court case cited arguing that it cannot supersede that of Fortunatus Masha (supra) decided by the Court of Appeal. Mr. Bagiliye reiterated that the issue of illegality obliges this Court to extend time for the applicants to file notice of appeal for the applicants to establish the illegality alleged and afford the Court of Appeal a chance to remedy the records. He cemented this argument with the case of Hamis Babu Ally (supra) and that of Ngolo s/o Mgagaja (supra) in which the Court of Appeal extended time suo motu to allow an issue of illegality to be addressed. The rival submissions by the learned counsels have been accorded due consideration. As settled, courts hold the discretion to extend time, but the same ought to be exercised judiciously upon sufficient or good cause being demonstrated. In this labour matter, the applicants are required to demonstrate good cause as per Rule 56 (1) of GN No. 106 of 2007. It is debatable as to what reasons amount to good causes. However, the Court of Appeal has developed several factors to be taken into consideration in granting extension of time. Some of such factors were well discussed in Lyamuya Construction (supra) whereby the Court stated: “As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be Page 9 of 14 exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated: - (a) The applicant must account for all the period of delay (b) The delay should not be inordinate (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) 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.” See also: Zuberi Nassor Moh’d (supra). The applicants have advanced two reasons for their delay. One, technical delay whereby they alleged to have filed a proper appeal in the Court of Appeal, but had to withdraw the same as it was incompetent for failure to join the 2nd, 3rd and 4th respondents. Two, illegality in the decision of this Court which they seek to challenge before the apex Court. The concept of technical delay covers the period in which the applicant spends in court to prosecute what would otherwise be a proper matter but is found incompetent for some reason. This was well expounded in Fortunatus Masha vs. William Shija and Another (supra) whereby the Court stated: “A distinction has to be drawn between cases involving real or actual delays and those such as the present one in which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to Page 10 of 14 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 pronouncement of the ruling of the court striking out the first appeal. In these circumstances an extension of time ought to be granted.” Technical delay was further explained in ZET Construction Company Limited vs. Kalokora Bwesha Cecilia Boniface Shiyo (Civil Application No 31401 of 2022) 2024 TZCA 197 (19 March 2024) where the apex Court stated: “It is trite law that, any delay arising from the time the applicant used in court's corridor pursuing his right, whether incompetently or otherwise is not an actual delay. It is referred to as technical delay which constitutes good cause for the grant of extension of time.” It is without doubt that the applicants had preferred an appeal before the Court of Appeal having followed all proper procedures. When the appeal, which was registered as Civil Appeal No. 241 of 2022, came before the Court, its propriety was discussed and the applicants prayed to withdraw the same. The Court admitted that indeed the appeal was improper and granted them their prayer for withdrawal. These events transpired on 07.08.2024. As Civil Appeal No. 241 of 2022 had been actually filed in time, the time frame for the entire time the appeal was being prosecuted from the decision of this appeal in Labour Revision No. 37 of 2020 being made to the date of withdrawal of the appeal on 07.08.2024 is subject to technical delay. Page 11 of 14 However, there were no facts pleaded by the applicants as to what transpired from 07.08.2024 to 09.09.2024 when this application was filed. Mr. Bagiliye’s averments in his rejoinder submission that the applicants received the withdrawal date after lapse of 7 days and that the rest of the days were used in preparation of the appeal, did not feature in the applicants’ affidavit. The averments are thus an afterthought, a mere statement from the bar. This Court can therefore not consider them. It is trite law that a delay of even a single day ought to be accounted for. This position was also emphasized in Rashid Said Kautipe vs. Zoeb F. Kadarbhai Another (Application No 1917 of 2022) 2024 TZCA 254 (8 April 2024) whereby the Court of Appeal stated: “As regards such other legal requirement, it is trite law that, in order an application for extension of time to succeed, the applicant has to account for each day of the delay, however slight it may be.” Courts in labour cases can, as means to relax procedures for interest of justice, allow an unaccounted delay of a few days. See, Blastus Alois Mgegera vs. Board of Trustees of Tanzania National Parks (Civil Appeal No 310 of 2022) 2024 TZCA 217 (22 March 2024) whereby the applicant was late for seven (7) days. In this matter however, the delay is of 33 days. Making matters worse, the applicants did not even bother to mention the days or even account for them. As Page 12 of 14 such, I find the 33 days rather long to be leniently considered in granting the application. Moving on to the question of illegality; it is well settled that existence of illegality suffices as good ground for the court with relevant discretion to extend time. See, Valambhia (supra) and Joyce Joram Lemanya vs. Patricia Patrick Lemanya and Another (Civil Application 430 of 2021) 2023 TZCA 235 (10 May 2023). The illegality however, must be apparent on the face of record as emphasized in the case of Joyce Joram Lemanya vs. Patricia Patrick Lemanya and Another (supra) whereby the Court of Appeal stated: “… in any application of the present nature, where illegality is raised regarding the judgment sought to be revised, the court is enjoined to grant the application for extension of time to pave the way for consideration of the matter, (vide the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185). It is however important to draw attention to the requirement that, it is always upon the applicant to demonstrate that the said illegality is apparent on the face of the record.” Mr. Bagiliye has raised the concern that the settlement agreement executed at the CMA was not executed by the parties. He made reference to Section 88 (7) of the ELRA, Rule 8 and Rule 13(2) and (3) of GN. No. 67 of 2007 to that effect. In the premises, it is apparent that the question of legality of the settlement agreement is at issue. This concern is well raised on the applicant’s affidavit. It also appears to have been at issue during revision and thus apparent Page 13 of 14 on the face of record. Further, the issue is of grave importance as it raises concerns as to the applicants being denied the right to be heard at the CMA. This is one of the issues mentioned to be of importance in Charles Richard Kombe vs. Kinondoni Municipal Council (Civil Reference No. 13 of 2019) [2023] TZCA 137 (23 March 2023) whereby a full bench of the Court of Appeal stated: “… it is our conclusion that for a decision to be attacked on ground of illegality, one has to successfully argue that the Court acted illegally for want of jurisdiction or denial of right to be heard or that the matter was time barred.” In the foregoing observation, I am of the view that the applicants have demonstrated an illegality in decision they seek to challenge before the apex Court. This Court is thus enjoined to extend time for the illegality to be addressed even if the applicants have not accounted for the 33 days of delay. The application is therefore granted. The applicants are herein given 30 days to file their notice of appeal in the Court of Appeal. Each party to bear own costs. Dated and delivered at Moshi on this 27th day of March, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14