firmin paul mghamba others vs tanzania breweries ltd 2020 tzhcld 1822 12 august 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAAM MISCELLANEOUS APPLICATION NO. 642 OF 2019 BETWEEN FIRMIN PAUL MGHAMBA AND 15 OTHERS............APPLICANTS VERSUS TANZANIA BREWERIES LIMITED..................... RESPONDENT RULING Date of Last Order: 05/08/2020 Date of Ruling: 12/08/2020 Z.G. Muruke. J. Applicants application for leave of representative suit was dismissed by honoruable Wambura, J on 15th October, 2019. Before me is an application for extension of time to file an application for leave of representative suit. When application came for hearing, court asked parties advocate, to address the court as to whether present application is tenable in law. Applicant counsel Tibiita Muganga submitted that, dismissal of the applicant which has not been determined on merits application can be refiled in the same court for it to be determined on merits. The affidavit explains reason for delays, it is on those strength applicants filed present application. Respondent counsel Godwin Nyaisa on his part submitted that, once application has been dismissed for being time barred like the present one at the high court, the remedy is to appeal to the Court of Appeal if not satisfied, but not to refile before the same court for extension of time, citing Miscellaneous Labour Application No. 79 of 2014 Tanzania Breweries Limited Vs. Edson Muganyizi Barongo & 7 others Mipawa, J and Court of Appeal decision in Civil Appeal No. 27/2003 Hashim Madongo and two others Vs. Ministry for Industry and Trade and 2 others. Respondent counsel insisted that present application is untenable in law thus prayed for the same to be struck out. In rejoinder, Mr. Muganga admitted that application is untenable. Indeed, as correctly submitted by respondent counsel that once application has been dismissed for being time barred by the High Court like the preset one at hand, one cannot file extension of time to file same application. If not satisfied with dismissal, the remedy is to appeal to the Court of Appeal. The court of Appeal in the case of Ngoni Matengo Co­ operative Union Ltd Vs. Ali Mohamed Othman, [1959] E 577-588 distinguished dismissal and striking, as follows: "An order for dismissal implies that competent appeal has been disposed "of while an order for striking implies that there was no appeal capable of being disposed." The position was amplified by Honourable Mipawa, J in Miscellaneous Labour Application number 29/2014 Tanzania Breweries Limited Vs. Edson Muganyizi Barongo and 7 others, held that: "Equally in the instant applicant the applicant cannot convince this court through the manner they had opted to wit by filing an application for extension of time in which to refile the dismissed application. The court cannot resurrect a matter or an application it killed (dismissed) under the circumstances of being time barred and without leave of the court to be filed. It needs another power from another powerful forum or court to resurrect the dismissed application or matter c'est-a-dire (that is to say) a superior court like the Court of Appeal of Tanzania and that is by the applicants going to the Court of Appeal for remedy of a dismissed matter and not to come before this court which "killed" dismissed the matter or application." In the case at hand, application for leave of representative was dismissed by Honourable Wambura, J. Thus, to file application for extension of time, to file an application for leave of representative suit already dismissed, amounts to file an appeal before the same court that made decision. This is untenable in law. Application is not properly before the court. Accordingly, Misc. Application number 642/2019 is struck out. Order accordingly. Z.G.Muruke JUDGE 12/08/2020 Ruling delivered in the presence of Tibiita Muganga for the applicant and Godwin Nyaisa for the respondent. Z.G.Muruke JUDGE 12/08/2020 3