GEITA GOLD MINING LIMITED VS PATRICK GEORGE 5 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY AT MWANZA REVISION APPLICATION NO. 40 OF 2023 (Arising from the award of the CMA at Geita in consolidated Disputes No. CMA/GTA/26/2023 issued on 15/09/2023) GEITA GOLD MINING LIMITED................................................ APPLICANT VERSUS PATRICK GEORGE............................................................. 1st RESPONDENT PASCHAL EDWARD NGELEJA............................................ 2nd RESPONDENT JOSEPH PETERSON.................................................................................. 3rdRESPONDEN FIKIRI EDWARD LUBINZA....................................................................... 4thRESPONDEN ERASTO LYIMO......................................................................................... 5thRESPONDEN HONEST LUDOVICK.......................................................... 6th RESPONDENT RULING 26"' August & 28h August, 2024 k. MATUMA, J. The Respondents herein filed their labour dispute against the Applicant at the Commission for Mediation and Arbitration at Geita vide CMA/GTA/26/2023. Since such dispute was lately filed, it was attached with condonation application. As procedurally dictated, the condonation was heard first and finally granted for the main dispute to be heard on merits. i The applicant herein maintaining that there was no sufficient ground to condone the respondents preferred this Revision to challenge such decision which condoned the late referral of the dispute. The Respondents having been served filed the requisite documents in reply and raised a preliminary objection which is the subject of this ruling. The raised objection is to the effect that this Revision is not maintainable for having been brought against an interlocutory decision. At the hearing of such objection, Mr. Faustine Malongo learned advocate appeared for the Applicant while M/S Ester Safari Sungwa learned advocate represented the Respondents. Addressing for the PO, the learned advocate for the Respondents argued that this application contravenes the provisions of rule 50 of the labour Court Rules, G.N No. 106 of 2007 which provides that no Revision shall be preferred against a labour decision unless such decision has an effect of finalizing the dispute. She argued that in the instant matter there is a pending dispute between the parties which is yet to be determined. The learned advocate cited some authorities to the effect that an order granting condonation is interlocutory which is not subject to Revision. Such cited authorities are; i. International Tax Consultants Limited versus Macdonald Justus Rweyemamu, Labour Revision No. 199 of2023, Labour Court at Dar es salaam. ii. Exim Bank Tanzania Limited versus Norbert Deogratias Missana, Revision No. 223 of2023, Labour Court at Dar es salaam. On his part, Mr. Faustine Malongo learned advocate for the applicant argued that an order granting or refusing the grant of extension of time is a final order because it determines the rights of the parties to its finality. He argued that the issue before CMA was whether the respondents had good cause for extension of time and that issue was conclusively determined. In that regard rule 50 of G.N No. 106 Supra is not applicable, he insisted. To cement his argument, the learned advocate cited the following authorities; i. Commissioner General Tanzania Revenue Authority and Another versus Milambo Limited, Civil Appeal No. 62 of2022 (CAT). ii. Lucky Games Limited versus Saiim Madati, Revision Application No. 53 of2023, Labour Division at Dar es salaam. In her rejoinder submission M/S Ester Safari Sungwa learned advocate distinguished the normal application for extension of time and 3 condonation application in labour matters which must be filed along with the main dispute whose effect is that once condonation is granted, the pending main dispute is automatically due for hearing. Having heard the parties for and against the preliminary objection, it is obvious that the parties are not at issue that an interlocutory decision is not subject to Revision or appeal. The only contention between them is thus; Whether an order granting condonation in labour matter is interlocutory. I will start by taking note of the binding authority in the Court of appeal decision in the case of commissioner General Tanzania Revenue Authority Supra as to what amounts to an interlocutory decision. It is the decision of the Court which does not deal with the finality of the case but settles subordinate issues relating to the main subject matter which may be necessary to decide during the pendency of the case. From such definition as given by the Highest Court on the land, it is obvious that an interlocutory decision cannot be reached or exist unless there is a main pending case. 4 In that respect, I find that there is difference between application for extension of time and application for condonation. The difference between the two will automatically resolve the dispute before me. While application for extension of time is filed before the main matter is filed which will only be filed if extension of time is given, application for condonation under the labour laws is part of the main case. It cannot be filed separately. It does not even be registered in its own. It is the main dispute which will be registered and in it carry the condonation form no. 2. Therefore, the condonation ruling will automatically carry the registration or reference number of the main cause. It is filed within the main labour dispute and the applicant will show in it by ticking paragraph 7(a) of the Referral Application CMA form no. 1 that such application requires condonation and will in addition thereto fill CMA form No. 2. The condonation does not bear its own registration number because it is part of the main case and will be determined under the reference number of the main dispute. Such paragraph 7(a) supra provides clearly that application for condonation is an attachment to the main cause in the meaning that it is part and parcel to the main suit and shall be determined as a subordinate issue to the main one. It reads; ”7. APPLICA TION FOR CONDONA TION 5 (a) Is an application for condonation for late filing of this dispute necessary? Tick the appropriate box. If yes, an application for condonation form shall be attached To that effect no doubt that application for condonation is not a separate suit and as rightly argued by M/S Ester Safari Sungwa learned advocate, once the condonation is granted, the main case which is already pending shall be due for hearing. In that respect granting condonation does not finally determine the matter before the commission for mediation and Arbitration unlike when the condonation is denied in which case even the main pending case would automatically go off register. Condonation is just forgiveness for late filing of a labour dispute while extension of time is granting specific time within which the suit or application has to be filed. In other words, the labour law allows filing the dispute out of time with its condonation application attached while other Civil Laws prohibits any filing of the suit out of the prescribed time unless extension of time is sought and granted. In condonation the applicant is forgiven for the late filing of his or her case so that such case which is already filed is heard on merits. In that respect the condonation application is heard and decided as an interlocutory issue within the main case a its decision granting condonation will be an interlocutory decision because the already filed suit will remain in the CMA's register due for hearing. With such observation, I find that the case of commissioner General Tanzania Revenue Authority is distinguishable in the circumstances of this case because it did not deal with the decision resulting from condonation but the decision which resulted from extension of time. Nevertheless, the definition of an interlocutory decision given in that case in my view covers the condonation decision because it held that an interlocutory decision is the decision of the Court which does not deal with the finality of the case but settles subordinate issues relating to the main subject matter which may be necessary to decide during the pendency of the case. That being the case, since condonation decision is given within the already filed and pending dispute, it is a subject issue to the main suit which is decided during the pendency of the main case or dispute. Extension of time in other civil cases is normally and legally treated as a separate suit which unless granted the main subject matter cannot be filed. I therefore purchase the ideas, arguments and reasonings of my brethren justice Mlyambina in the two decisions cited by the learned counsel for the Respondents Supra to the effect that an order granting condonation is an interlocutory order which is not subject to Revision due to its 7 peculiarity for being attached to the main complaint as dictated by law under rule 11(2) of the labour institutions (Mediation and Arbitration) Rules G.N No. 64 of 2007. To that effect, I take note of the decision in Lucky Games Limited's case but being a persuasive authority, I leave it as it is. I therefore struck out this application for having been brough contrary to rule 50 of the labour Court Rules Supa and direct that the file be remitted back to CMA for determination of the dispute between the parties. I order no costs to either party. It is so ordered. Judge 28.08.2024 8