Ezekiah Tom Oluochi vs CWT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DODOMA LABOUR COMPLAINT NO. 7898 OF 2024 EZEKIAH TOM OLUOCH.................................................... APPLICANT VERSUS CHAMA CHA WALIMU TANZANIA.................................... RESPONDENT RULING Date of last Order: 23/7/2024 Date of the Ruling: 31/7/2024 KHALFAN, J. This is a ruling on preliminary objections raised by the respondent to the effect that: 1. This application is hopelessly time barred contrary to item 21 of part III of the schedule to the Law of Limitation Act [CAP 89 R.E2019]. 2. That the application is misconceived for containing two prayers which are to be preferred by different applications. The above preliminary objections were argued by way of written submissions. The complainant appeared in person while the respondent was represented by Messrs. Sedrick Allen Mbunda and Thomas Edward Nchimbi, learned advocates In their submission in support of the 1st preliminary objection, the learned advocates for the respondent argued that the dispute arose on 29/9/2017 when the respondent informed the complainant that he was dismissed from employment through a letter dated 22/5/2017 with reference No. CAB.308/320/01/22. They argued that, the instant application, was filed in this court on 15/4/2024 after expiry of seven years. They also contended that since there is no specific period of time is prescribed for filing the instant application, then recourse should be made to item 21 part III of the schedule to the Law of Limitation Act [Cap 89 R.E 2019], (hereinafter referred to as LLA). In addition, they argued that, the said provision provides for period of 60 days for applications whose period of limitation is not prescribed by any written law. To buttress their arguments, the learned advocates referred the case of Barclays Bank Tanzania Limited vs. Phylisiah Hussein Mcheni Civil Appel No. 19 of 2016 [2022] TZCA 302 (17 May 2021). The learned advocates therefore urged the court to dismiss the application with costs under section 3(1) of the LLA. Submitting on the 2nd preliminary objection, the learned advocates for the respondent argued that, the instant application is misconceived for containing two prayers which ought to have been preferred separately. They contended that, in the instant application, the complainant is seeking for extension of time and compensation of twelve months' wages for the refusal by the respondent to reinstate him. They also maintained that, whereas the first prayer is for extension of time which has been preferred under rule 56(1) and (3) of the Labour Court Rules G.N No. 106 of 2007 (hereinafter referred to as the Rules) the second relief is for compensation of twelve months' wages for refusal to reinstate the complainant which is made without any enabling provision of the law. They claimed that, the prayers in the matter at hand are different and they were required to be made in different applications. They argued that such omission renders the application incompetent. They submitted that, if the application is out of time, the applicant should seek first extension of time in a separate application and not filing two applications in one application. To buttress their arguments, the learned advocates referred to 3 the case of Rutagatia C. L vs. Advocates Committee and another Civil Application No. 98 of 2010 Court of Appeal of Tanzania (unreported) in which the court observed that an application is rendered incompetent for being omnibus if it contains prayers which are on different provisions of the law, the prayers require different consideration to be taken and if the applicable jurisdiction is different. They submitted further that, since the complainant combined two prayers which are on different provisions of the law and they require different consideration to be taken then this application is rendered incompetent. The learned advocates referred to the case of Mohamed Salimin vs. Jumanne Omary Mapesa Civil Application No. 103 of 2014 Court of Appeal of Tanzania (unreported). They, urged the court to find the application both time barred as well as incompetent for containing two prayers. In reply, the complainant argued that, the 1st preliminary objection is misconceived because in the instant application, he sought an extension of time. He further argued that, the cause of action did not arise on 22/5/2017 rather 24/5/2021 hence he readily conceded that the application was time barred but for less than three years, counting from 24/5/2021 to 15/4/2024 when the instant application was filed. He submitted that when he realised that he was out of time, he filed the instant application which contains two reliefs, one being for extension of time. He therefore urged the court to overrule the 1st preliminary objection. Arguing on the 2nd preliminary objection, the complainant pointed out that, the learned advocates for the respondent did not cite any provision of the law which restricts two reliefs from being combined in one application if they are interrelated. He argued that rule 56 (1) (3) of the Rules does not restrict the application to combine two prayers. He pointed out that the case of Rutagatia C. L vs. Advocates Committee and another (supra) is distinguishable to the application at hand since, in that case, the application contained two reliefs for extension of time and an application for leave which were supposed to be preferred separately. He further submitted that the decision in the case of Mohamed Salimin vs. Jumanne Omary Mapesa is also distinguishable since the facts of the case are different from the facts of the case in the instant matter. He argued that in that case, the applicant first lodged an application but when he realised he was out of time, he filed an application for extension of time, hence the two applications were unrelated. The complainant referred to several decisions which support his stance that combining of more than one prayer in one application is not fatal. He therefore urged the court to overrule the preliminary objections. In rejoinder, the learned advocates for the respondent essentially reiterated their submission in chief. They maintained that, the instant application is time barred and also the same is defective for containing two reliefs in one application. Having gone through the parties' rival submissions, the sole issue for my determination is whether the preliminary objections raised by the respondent have merits. I will start my deliberation with the 1st preliminary objection. While the respondent maintained that the instant application is time barred, the complainant had a different stance, he was of the view that the 1st preliminary objection is misconceived since the application contains a relief for extension of time. Rightly as argued by the complainant, the instant application contains two reliefs, the first relief is for extension of time. This fact is admitted by the learned advocates for the respondent while arguing the 2na preliminary 6 objection that the application contains two prayers one of them being for extension of time. Therefore since, the first relief is for extension of time, then this application cannot be termed as time barred. It is for that reason that I agree with the complainant's submission that the 1st preliminary objection is misconceived and it is accordingly overruled. As to the 2nd preliminary objection, it is not in dispute that, the instant application contains two reliefs, the first one is for extension of time and the second one is for payment of the compensation after the respondent had refused to reinstate the complainant. While the respondent maintained that, the application contains two prayers which were to be preferred separately, the complainant argued that it was proper for the two prayers be combined together in one application. Whether the instant application is rendered incompetent for containing more than one prayer (omnibus application), the guiding principle as expounded in the case of Rutagatia C. L vs. Advocates Committee and Another (supra) is on the interrelatedness of the prayers sought. In the instant matter, the first relief which is for extension of time in terms of rule 56 (1) and (3) of the Rules, the applicant is required to show sufficient cause before the court can exercise its discretion for extension cf time. The second 7 relief is governed by another law, namely the Employment and Labour Relations Act [Cap 366 R.E 2019], in which section 40 (1) provides for the circumstance in which compensation for 12 months' salary can be granted. Hence, since the two prayers are governed by different laws for different considerations, I am satisfied that the application is rendered incompetent for being omnibus. The complainant was first required to seek an extension of time, and if successful, he was required to file an application for compensation. I therefore find the second preliminary objection to have merits and the same is sustained. Consequently, the application is incompetent and it is hereby struck out. In the circumstance of this matter, I will not make an order as to costs. DATED at DODOMA this 31st July 2024. R. KHALFAN JUDGE 31/7/2024 8