FINAL RULING HAMIS OMARY V

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 30909 OF 2024 (Arising from Labour Dispute No. CMA/PWN/MKR/26/2022/182/2023)) HAMISI OMARY MTAWILA..................................................... 1st APPLICANT SUDI SULATN KANDOBWA................................................... 2nd APPLICANT KASSIM JUMA MKUMBUGO.....................................................3rd APPLICANT NICHOLAUS LWIBA RAULIANO............................................. 4th APPLICANT VERSUS ARAB CONTRACTOR & ELSEWEDY ELECTRIC JV................ 1st RESPONDENT ELLEN AND ETHAN CONSULT............................................ 2nd RESPONDENT RULING OPIYO, J. This is an application for extension of time to file revision application to challenge the decision of the Commission for Mediation and Arbitration of Dar es Salaam, Ilala in Labour Dispute No. CMA/PWN/MKR/26/2022/182/2023). The application is supported by the affidavit Dated 29th September 2023 by Miriam Ndesarua, the applicants counsel. By a way of counter affidavit, the Respondent vehemently disputed the reasonability of the grounds advanced by the applicant as a cause of delay. The hearing proceeded by way of written submissions. The Applicant was represented by Ms. Miriam Ndeserua, Advocate, whereas the 1st respondent was represented by Joycelinda Mndeme, advocate and 2nd respondent by Mr. Malik Hamza, Advocate. Supporting the application Ms. Miriam Ndeserua reiterated the contents of the affidavit. In justifying her prayer, the deponent advanced a ground of sickness of an advocate as a reason of being out of time in filing the intended application. She argued that, on 13th November 2024 this Court in Misc Labour Application No 16758 of 2024 ordered the applicants to file their application for revision within 14 days. In the process of abiding to the above order, notice was duly served to all respondents, but when the advocate responsible with this matter was prepared for filing the application for revision, unfortunately she experienced terrible back pains that prevented her from submitting the same within the scheduled time. Due to that sickness she was put under medical pain management for 12 hours at Mauto Specialised Polyclinic, although luckily, she was later released, as per Annexture AB 3. She continued to submit that, on 27th November 2024 was the deadline date for filling application for revision but the advocate fell sick a day before, on 26th November 2024. Luck not on their side, they were late to file the intended application as a result, they had to file this application for extension on 5th December 2024, that was late for almost 8 days from the date leave was granted. In justifying her ground regarding extension of time she cited different cases including the case of John David Kashekya v. The Attorney general, Civil Application no. 1 of 2012, Court of Appeal of Tanzania, (unreported) which was quoted in approval in the case of Pimak Profesyonel Muftak Limited versus Pimak Limited and Another, Misc. Commercial Application no. 55 of 2018, High Court of Tanzania Commercial Division, (unreported), where it was held that, " Sickness is a condition which is expected by the person who is sick, it is not a shared experience. Except for children who are not yet in a position to express their feelings. It is the sick person who can express his/her condition whether he/she has strength to move, work and do whatever kind of work he is required to do. In this regard it is the applicant who says he was sick and he produced medical chits to show that he reported to a doctor for checkup. There is no evidence from the respondent to show that after that period, his condition immediately become better and he was able to come to court and pursue his case. Under such circumstances, I do not see reasons for doubting his health condition. I find the reason of sickness given by the applicant to be sufficient reason for granting the application for extension of time.’’ She added that, it is worth noting that, the first Labour Revision No 12269 of 2024 was filled within time and during all this time the matter was still in court until when the applicants were granted 14 days to file notice. This shows applicants’ seriousness in pursuing the matter. She therefore, prayed for the Court to consider illness as an unavoidable and unexpected circumstance, and not counted as negligence or human error to grant this application citing with approval the case of Ally Said Mzimba Versus Mwajabu Stamili in the Misc Civil Application No. 65 of 2021, HC DSM Registry where it was held that:- ‘In such circumstances I do not have any reason to doubt the Applicants sickness which has been averred in a properly sworn affidavit and backed up with medical records of the Applicant. The medical record indicates that Applicants was sick from 12th January 2021 to 6th February 2021. On 15th February 2021 the Applicant filed the appeal at hand seeking for extension of time to file a notice of appeal. Sickness is a good ground for extension of time as it has been held in a number of cases. I also consider sickness in this application to be a sufficient ground to extend time for the Applicant to pursue the remedies sought.’’ In reply for the first respondent, Joycelinda Mndeme, learned counsel started by adopting their counter affidavit filed in opposition to form part of their submission. She then submitted that, on 13th November 2024 this Honorable Court in Misc Labour Application No 16758 of 2024 ordered the Applicants to file their application for revision within 14 days. But, they again their advocate delayed by failing to submit the application on scheduled time, leading to this application praying for the same. From the above facts, she argued that, party's failure to comply with established legal requirements undermines the entire purpose of having such laws in the first place and would amount to completely ignoring the law which parties are obligated to follow regardless of the circumstances. That, failure to file the Application for Revision, as admitted by the Applicants’ Advocate, demonstrates a clear case of negligence and a lack of understanding of the legal requirements. She highlighted that the Advocate's negligence alone is not an adequate reason to warrant extension of time by citing the case of Dalmas Jonyo Vs Samson Owino (Misc. Land Application 24 of 2021) [2021] TZHC 6299 on pages 6-7 where Honorable Mahimbali, J held that, it is a settled that ignorance of the law has never been a good reason for the extension of time. She went on to refer to the case of Mumello vs Bank of Tanzania (Civil Appeal 12 of 2002) [2006] TZCA 12 for the authority that, an extension of time is at the discretion of the court and can only be granted if sufficient cause is established. She then urged the court to dismiss the current application for the applicants have not provided a sufficient reasons for this Court to exercise its discretion in granting the extension of time to file application for revision. Disputing the application Mr. Malik Hamza, representing the second respondent submitted that, the delay of even a single day must be accounted for, otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken referring to the case of Lyamuya Construction Company Limited vs. Board of Registered Trustees of Young Christian Association of Tanzania, Civil Application No. 2 of 2010, Court of Appeal of Tanzania (unreported). He submitted that, the case sets out the principles for granting an extension of time, including accounting for each day of delay. He argued that, athough granting such an application is in the discretion of the court, the discretion must be exercised judiciously in accordance with rules of reasoning and justice and not according to private opinion. He asserted that, there was lack of diligence and laxity on applicant’s representatives/ advocate part that does not constitute good cause for extension of time. That, what is apparent from the applicant's submissions is sheer negligence. The Applicants’ learned Counsel failed to demonstrate what prevented another Attorney from Roel ER & Co. Advocates from filing the said revision between 29th day of November 2024 and 5th day of December 2024. He also challenged the fact that, the learned Counsel has submitted a “Medical Note” from a Polyclinic instead of a “Medical Report” from an Orthopaedic Institute or Hospital which does not seem to sufficiently support her ground of sickness. Bolstering his position he cited the case of Ramadhani Rashidi Kitime vs Anna Ally Senyangwa, Misc. Land Application NO. 3 of 2023, High Court of Tanzania at Morogoro (unreported), at page 5 of the typed Ruling by Malata J., referred the case of Jubilee Insurance (Tanzania) Limited vs. Mohamed Samer Khan, Civil Application No. 439/01 of 2020 (CAJ - Dar es salaam) where the court stated that failure of the advocate to act within the dictates of law cannot constitute a good cause for enlargement of time. According to him, the application for extension of time for a second time is an abuse of court process as it leaves the applicants’ counsel at fault for failing to file revision on time from the date the Court granted 1st leave. On that basis he is of the view that, failure by the applicant herein to take essential steps, is an abuse of court processes. As was addressed in the case of Mussa Mustafa vs Halid Ahamad, Misc. Civil Application No. 18 of 2021, the High Court of Tanzania at Kigoma, (Unreported), where the court stated that; - “It is awkward for a person who has been extended time but do not use the same until its expiry, then he knocks the court's door for the second time to seek the same thing. That is not accepted at all, unless there would have been advanced sufficient cause as to why the applicant could not act within the extended period. In the case of Nyamunini Ntarambigwa versus Simon Kikoti, Misc. Land Appeal no. 19 of 2020, High Court at Kigoma which was quoted in the case of Mussa Mustafa versus Halid Ahamadi, Misc. Civil Application no. 12/2020 who are in fact the parties in the instant matter, I made some observations against advocates for the parties to cases before the Court who does not honour the Court's time.” From the above position, he prayed for this court to dismiss the matter, on the reason that, applicant’s grounds are full of sloppy excuses and prejudice respondent’s right. I have considered parties submission thoroughly. The question to be addressed in this matter is whether ground of sickness advanced by the applicant is reasonable enough to warrant this court to exercise its power of extending time. However, before embarking on the merits of the application some facts need to be put straight. In the course of perusal for the purpose of composing this ruling, I realised that, in miscellaneous application number 16758 of 2024 what was granted by the court in its decision dated 13th November, 2024 was extension of time to file notice of intention to file revision, rather than extension of time to file revision application as argued by all the counsels. Therefore, the question of application for extension of time for the second time to file a revision does not arise. I realized that, both parties argued out of misconception on the fact that the court had already granted application for extension of time to file application for revision for the first time and this is the second time the applicant is making application on the same prayer to the extent of citing the case of Musa Mustafa versus Halid Ahmad (supra) to defend their conception. This therefore, is a normal application for extension of time for the first time which requires the applicant to provide good cause for delay in order for the court to grant her or his prayer. What constitutes good cause has not been defined, it is left to be determined based on the circumstances of each case (see the case of Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda - Civil Application No. 6 of 2001 cited by Mndeme in her submission. In our case, the applicant stated that her delay resulted from the sickness of her Advocate that started after they were granted extension of time to file notice of intention to file revision which they filed, and dully saved to the other side. But when she was about to file the revision she was attacked with severe back pain that landed her in hospital for some days, causing a delay in filing the intended revision. She referred this court to annexture AB 3 from Mauto specialized polyclinic to substantiate her claim that she had visited the doctor on that day. Although Annexture AB3 is being belittled by Mr. Malik for not being sufficient proof of counsels sickness for being a mere medical note from polyclinic rather than medical report from orthopedic Institute or hospital, In my considered view, Mr. Malik’s objection is unfounded because at least the document supplied is enough to show that the Advocate attended medical services on a particular day. It common for someone who is attacked with a sudden illness to run to closest medical facility before resorting to large hospitals thought of by 1st respondent’s counsel. Therefore, I hesitate to have hold Mr. Malik doubt on the medical note submitted by the officer of the court in backing her illness. As held in the case of Pimak Profesyonel Muftak Limited versus Pimak Limited and Another, (supra) cited by the applicant, it is the sick person who can express his/her condition whether he/she has strength to move, work and do whatever kind of work he is required to do. Therefore, unless we have a reason to doubt the authenticity of the medical note the advocate provided proving her requiring medical attention on that date, her side of the story stand to proof her sickness. Although the categories of good cause have not been exhaustively defined as noted above, but sickness has already been identified as good ground for extension of time as it has been held in a number of cases including the case of Ally Said Mzimba Versus Mwajabu Stamili (supra). On her part, Ms. Mndeme did not concentrate much in challenging the reason of applicant’s advocate sickness, but associated her failure to comply with assumed court order extending time for them for the first time with serious negligence in her part. We have already pointed the misconception that folded this line of argument in our clarification above, that we decline to say more on it. I therefore, consider counsel’s sickness in this application to be a sufficient ground to warrant this court to extend time for the Applicant to pursue the remedies sought. The intended application shall be filed within 14 days from the date of ruling. M. P. OPIYO, JUDGE 25/3/2025 Court: This ruling is delivered this 25th day of March 2025 in presence of Miriam Ndesarua, advocate, for applicant and also holding brief for Joycelinda Mndeme, advocate, for first respondent and in absence of the second respondent.