halfan bjumaa 37 others vs tanzania zambia railways authority another 2021 tzhcld 2097 11 february 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

PAR ES SALAAM MISC.LABOUR APPLICATION NO. 117 OF 2021

BETWEEN HALFAN B.I JU MAA & 37 OTHERS. ^.'APPLICANT AND TANZANIA ZAMBIA RAILWAY AUTHORITY 1st RESPONDENT THE ATTORNEY GENERAL. 2nd RESPONDENT

RULING Date of last order: 26/01/2022 Date of Ruling: 11/02/2022^ B.E.K. MaanqaM? App^^tsrwere employees of the 1st respondent. They retired on di^ re nt/dates and years between 2001 and 2009. On their retirement, applicants were paid regular retirement benefits for unionized workers. In 2017, they filed labour dispute No. CMA/DSM/TEM/346/2016/59/2017 before the Commission for Mediation and arbitration henceforth CMA at i Temeke claiming to be paid by the 1st respondent (i) one-off retirement package and (ii) long service gratuity allegedly payable to Management staff as substantive special retirement benefits for management staff according to circular No. TZR/C/16/VOL.IV dated 20th August 2002. On 27th October 2017, M. Batenga, arbitrator, issued an exparte award dismissing their claims. Applicants once again, filed labour dispute No. CMA/DSM/TEM/257/18/02/19 at CMA Temeke fdr<the^same claims. On 17th September 2019, Kokusiima, L, arbitrator, delivered a ruling upholding the preliminary objection raised oy-tpe 1st respondent that the dispute was res judicata. On 20^>April^2021, they filed this application J) seeking extension of time within which to file an application to revise the award issued on 27th Octobero2017, by M. Batenga, arbitrator, and not the ruling1 deliver^^^l/tfl September 2019, by Kokusiima, L, arbitrator. The^o^^^f ^application is supported by an affidavit

affirmed by Halfani (BaKarL Tumaa. In the said affidavit, the deponent deponed that he was^one of the former employees of the 1st respondent and that he was appointed to represent his 37 fellow applicants who are also former employees of the respondent. In paragraph 16 of the affidavit in support of the application, the deponent stated that, this application of extension 2 of time has been brought on the grounds of illegalities and seriously triable points of law namely, (i) other 33 applicants were denied their right to be heard/ to prove their cases and (ii) that the trial arbitrator erred in assuming that ail the complainants (sic) were being testified for by Haflfapi(sic) Bakari Jumaa, Juma Halfani Said, Moharrfed\ Katepibo Mwiru and Alfred Isack Kileo while each of the complainants^bught to have testified to prove his case. In opposing the application, the respondents filed the notice of opposition together with the counter^ affidavit sworn by Beatrice Nyangomas Mutembei, Principal /6fficer<ofbthe 1st respondent. When the applicationwas called on for hearing, counsels for both sides prayed the applicationrp be argued by way of written submission as a result an orden/vashssued to that effect. In thexwittensubmissions, Mr. Odhiambo Kobas, advocate for the applicants,^submitted that applicants were denied their right to be heard after\tbe/?arbitrator had assumed that all were

being testified for by Halfani Bakari Jumaa, Juma Halfan Said, Mohamed Katembo Mwiru and Alfred Isack Kileo, while each of them ought to have testified to prove his case. Mr. Kobas submitted that the arbitrator in denying the 3 applicants right to be heard by not reminding them or not drawing their attention to their right to testify, constitutes a sufficient ground of extension, of time. Counsel for the applicants submitted further that, the mistake ifj any, in not leading each applicant to testify, was done by their advocate 'or representatives and not themselves. Counsekargued that it J? \W is unjust to impute the advocate's mistake into the applicants. To bolster his argument, Counsel cited the case of BahatRMussa Hamis Mtopa v. Saium Rashid, Civil Application ^^112/07 of 2018, CAT (unreported). Mr. ;Kobas, counsel for the applicant cited the case of National J Agriculture and Food Corporation v, Mulbadaw Village Council and Another [1985] T>b.R.88 and submitted that in a representative suit, each of the a^icjntswas required to prove his case. He submitted that each^ap^fc^n^failed to prove his case due to mistake or error of their counsekwho failed to call each one of them to testify and the arbitratoi^who failed to remind them to testify. Counsel for the applicant submitted further that, the denial of right to be heard is an illegality which has been held in a number of

cases that once shown and advanced, by itself, constitutes a sufficient ground of extension of time. 4 To support that position, he cited the case of Mary Rwabizi T/A Amuga Enterprises v. National Microfinance Pic, Civil Application No. 378/01 of 2019, CAT (unreported). Responding to the applicant's contentions, Ms. Lightness Godwin Msuya, State Attorney, for the respondents, contended thaVapplicants, upon retirement were paid retirement benefits according tozthe 1st respondent's staff Regulation. She submitted that tf^ allegation that they were supposed to be paid substantive special benefit retirement for management staff is unfounded as ckcular^TTZR/C/16/VOL.IV dated 20th August 2002 was never/approved by the board of the 1st respondent. Ms. Msuya, State Attorney, submitted that, applicants are seeking W i award^tiiat is the subject of this application, applicants who were represented at CMA by Steven Toya, advocate, instead of filing application for revision before this court, filed a new dispute at CMA. State Attorney submitted further that, applicants filed this application on 5 20th April 2021 after lapse of three years and four months while section 91(l)(a) of the Employment and Labour Relations Act [Cap.366 R.E. 2019] provides that application for revision has to be filed within six weeks. Ms. Msuya, State Attorney, submitted that applicants have failed to account for

each day of delay and further that the delays inordinate. To support her arguments, Ms. Msuya, State Attorney cited the case of Aziz Mohamed v. Republic, Criminal Appeal^No^84/07 of 2019, c* I CAT(Unreported) and Lyamuya Construction^ompany Limited k Board of Registered Trustees pf^Yqung Women's Christian Association of Tanzania, Application No. 2 of 2020, CAT(Unreported). State Attorney submitted further that, applicants have exhibited lack of diligencesancj have shown that they were negligent or sloppiness in the^^ter/and that they made this application as an afterthought,^hicn is'why, instead of filing application for revision, they filed a new'dispute at CMA and waited for more than three (3) years to file this/application as an afterthought. State Attorney submitted that Muibadaw's case (sura) is distinguishable and inapplicable in the circumstances of this application. 6 On the allegation that applicants were denied right to be heard by the arbitrator and that the same amounts to illegality, State Attorney submitted that, at CMA, applicants were represented by an advocate and that the dispute was heard exparte. It was the wisdom of the advocate that four applicants sufficiently proved the appii^ion, close the case and made closing submissions thereof. ^Ms^Msuya, State Attorney; distinguished Mtopa case, (supra),Q-in which there were bonafide।mistake and procedural error

unlike-the^present application. 1 I have carefully considere^^ubr^^nsof the parties and I should point from the outset that, I will not deal with the submissions relating to whether applicants werje^entitled to be paid substantive special benefit retirement foi^n^agement staff or not, as the prayer in the application is exteqsk^ of time and not revision. Therefore, this being application, for^extension of time, I have been called to exercise my w discretion^whether to grant it or not. I am mindful that this discretion has to be; exercised judiciously as it was held by the Court of Appeal in the case of Court of Appeal in the case of Zaidi Baraka and 2 others K Exim Bank (T) Limited, Wise. Commercial cause No. 300 of 2015, CAT (unreported) and MZA BTC Trading Company Limited v. 7 Export Trading Company limited, Civil Application No. 12 of 2015 (unreported). In the MZA RTCcase(supra), the Court of Appeal held: - "an application for extension of time for the doing of any act authorized ...is on exercise in Judicial discretion... Judicial discretion is the exercise of Judgment by a Judge or court based on what is fair, uncier the circumstances and guided by the ruies and principles ofdaw\." In the case of Regional Manager, Tanroads Kagera v. Ruaha Concrete Company Ltd, Civil Application /NbX96 of 2007, CAT (unreported), the court or Appeal held that in> determination or

an application! for extension of time, the/fcount nas to satisfy as to whether, ft the applicant has established some^material amounting sufficient cause or good cause as to why tfci^sought application is to be granted. In fact, in terms of Rule 56 (IXof the Labour Court Rules, GN No. 106 of 2007, applicants are reqdredlto show in their application that there was good cause tha^^^ited them to file an application for revision within a prescribe^eriod of 42 days in order this court to grant their application of extension of time. This has to be shown in the affidavit supporting the notice of application and not in their submissions, as the latter is not evidence. 8 I have read the affidavit in support of the application and find that, there is no even a single paragraph in which the deponent gave reasons that prevented them to file revision application before this court within 42 days after delivery of the award on 27th October 2017. The only paragraph relating to extension of time is paragraph 16£^n\which>the deponent stated that applicants were denied right t^^^hear^In my view, it will be unfair to the respondents if I grant^hi^application while applicants have disclosed no good cause for\th^delay. In other words, granting the application in these circumstances, will be misuse of discretionary powers of the court. It was submitted by^ounsel for the applicants that they

were denied right to be heard^y^the arbitrator who, according to them, was supposed to inforirHtiem all to testify and not to allow only four out of 37 to testify>^hese submissions were countered, correctly in my view, byXthe State Attorney, for the respondents that, applicants were represented by learned counsel at CMA and that in the wisdom of the learned counsel, found that four applicants who testified proved their case. With due respect to counsel for the applicants, reminding the parties as to the number of witness to testify is not amongst the duties 9 of the arbitrator. As correctly submitted by State Attorney and reflected in the award, the dispute was heard exparte while applicants being represented by Steven Tonya, advocate. The mere fact that the said Steven Tonya failed to advise all applicant to testify, in my view, does not amount to denial of right to be heard. Reasons for tKisVconclusion are not far. The said Steven Tonya was brought^texCMA^^y the applicants and whatever was done by the 'said ^Steven Tonya in proceedings were done on behalf of the^applicants. Therefore, the alleged denial of right to be heard, if any/inujiy view, was done by the said counsel and not by the arbitrator^ other words, the number of t f „ hV r t th I Th t persons to testify was made>by the-apphcants themselves. They cannot be heard complaining about>their own decision. From where I

am standing, the alleged^denial of right to be heard was a result of poor choice or bad^decisibn by the applicants themselves and their advocate. In my vi^gthat can be a mistake by an advocate or incompetence of an'advocate. It is my view therefore, that the failure of an advocate to call a witness is not an illegality but a matter of choice whether right or bad. 10 It was alleged that; applicants were denied right to be heard at CMA as only 4 out of 37 applicants testified. In reading the affidavit in support of the application, I have found that it was affirmed by Halfani Bakari Jumaa only, and that, there is no-order of the court to the effect that he was permitted to represent the rest of the applicants. Legally speaking, there is only an application by the said Haifanr^Bakafi Jumaa who, in his affidavit did not even disclose the names of 37 others. From the foregoing, (i) there is no proof that the, said Halfani Bakari Jumaa was mandated by 37 others to file this, application and (ii) applicants wants the court to grant a blanket extension of time to unknown 37 applicants. In my view, thisPis not^proper. The names of the applicants has to be clearly disclosed the court and the other party otherwise SX. the order of the cql^wilFbe uncertain as to who it will be issued. From wrayynave discussed hereinabove, the alleged illegality fails tosmeet fittest required for it to be a

ground of extension of time. In the case of Hamis Mohamed v. Mtumwa Moshi, Civil Appl cation No. 407 of 2019 (unreported) the Court of Appeal quoted the cases of Lyamuya (supra) and held that:- 11 "It follows then that an allegation of Illegality by Itself suffices for an extension of time. However, such an allegation of Illegality "must be apparent on the face of the record, such as the question of jurisdiction; not one that would be discovered by long drawn argument or process" The alleged illegality in my view is not apparent on recprcQhence that ground fails. From what I have demonstrated hereinabove^ applicants failed to delay. The delay itself is inordinate as-the-application was filed after three years, 12