hassan juma vs gfc food court 2023 tzhc 1221 31 march 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 424 OF 2022 (Arising from the decision of the Commission for Mediation and Arbitration of Dar es Salaam at Kinondoni dated 2Cfh day of May 2022 in Labour Dispute No. CMA/DSM/KIN/825/20/06/21) HASSAN JUMA....................................................................... APPLICANT VERSUS GFC FOOD COURT.................................................................. RESPONDENT RULING K. T. R. MTEULE, J. 29th March 2023 & 31st March 2023 This ruling is in respect of a preliminary objection raised by the respondent against this application for revision challenging the decision of the Commission for Mediation and Arbitration of Dar es Salaam in Labour Dispute No. CMA/DSM/KIN/825/20/06/21. The Applicant herein is praying for the orders of the Court in the following terms: - i. That this Honourable Court be pleased to revise and set aside the CMA proceedings and Award of the Commission for Mediation and Arbitration dated 20th May 2022 in Labour Dispute No. CMA/DSM/KIN/825/20/06/21 as the same was improperly procured. i ii. Any other relief(s) this Honourable Court my deem fit, just and equitable to grant. Opposing the application, the respondent filed a counter affidavit sworn by Mr. Joshua Garrison who is the proprietor of the respondents business. The preliminary objection is to the effect that;- the application is time barred. The preliminary objections were argued by a way of oral submissions. The respondent was represented by Mr. Moses Gumba, Advocate, while the applicant appeared in person. Supporting the preliminary objection, Mr. Gumba taking note of the Ruling of Hon. Mganga J dated 17th November 2022 which previously extended time submitted that the applicant was granted with leave to refile the revision application by an extension of 12 days counting from 17th November 2022. That the present revision application was lodged on 12th February 2022, meaning that there was a delay of 13 days since it was supposed to be filed on 29th November 2022. It was further submitted by Mr. Gumba that the effect of bringing a time barred applications is to have the said application dismissed. Supporting his stand, he cited the case of Registered Board of Trustees of AIC church of Tanzania vs. Sesilia Ramadhani, 2 Labour Revision No. 2 of 2021, High Court of Tanzania, Labour Division, at Dar es salaam, (unreported) where it was held that the time barred application needs to be dismissed. According to him since the application was filed after the expiry of 13 days, this Court lacks jurisdiction. He thus prayed for the application to be dismissed. Resisting the preliminary objection, the Applicant Mr. Hassan Juma submitted that the counting should start on the date when the ruling was issued to the parties. He stated that they received it on 25th November 2022 and lodge his application on 6th December 2022, and on 9th December 2022 he was told that it was not yet processed and that on 12th December 2022, it is when it was registered in the Court registry. In rejoinder Mr. Gumba submitted that all documents get stamped with the Court seal on the date they are submitted in court. He averred that the applicant's documents are stamped with a seal dated 12/12/2022, and therefore the applicant's allegation regarding the time lacks legal stance. He further added that the applicant's assertion that he handled the documents to Robert is not supported neither by Mr. Robert nor by himself. As to whether this matter is time barred, parties' contention lies on when should the time starts to count. Parties are not disputed that on 3 17th November 2022 the Applicant was granted leave to refile the revision application vide Miscellaneous Application No. 372 of 2022. It is further not disputed that the refiling was supposed to be done within 12 days. Parties are contesting as to when should the 12 days start to be counted. To resolve this contention a quotation of the words which granted the extension is pertinent. The Hon Judge ordered at page 4 paragraph 2 of the Ruling Misc. Appl. No. 372 of 2022 thus: "I hereby allow this application and grant twelve (12) days from the date of this Ruling within which applicant shall file his intended revision before this court". The date of Ruling in my interpretation means the date which appears on the Ruling. The Ruling bears the words "Dated in Dar Es Salaam on this 17th November 2022." This means the date of the Ruling was 17th November 2022 and this was the day from which the 12 days had to be counted and not the date when the Ruling was supplied to the parties as contended by the Applicant. Therefore 12 days counted from 17th November 2022 were to last on 29th November 2022. In the contrary, as per the notice of application, the matter was filed on 12th December 2022. That means there was a delay of 13 days. 4 The question now is what should the court do with a time barred claim? In the case of Tanzania Fish Processors Ltd v. Christopher Luhangula, Civil Appeal No. 161 of 1994, Court of Appeal of Tanzania, at Mwanza, it was held that: "The question of Limitation of time is fundamental issue involving jurisdiction ...it goes to the very root of dealing with civil claims, limitation is a materia! point in the speedy administration of justice. Limitation is there to ensure that a party does not come to Court as and when he chooses..." From the above authority, anyone who wish to get his right on justice process must be keen to observe time for expeditious ending of a dispute or a litigation. The Applicant tried to justify the delay by the reason that the Ruling of the Court which granted leave to refile was issued to him late and he formed a view that computation of time should have started at the date when the said ruling was issued to him which is 25th November 2022. In my view, this excuse ought to have been raised in application for further extension of the 12 days previously given to have the Applicant. It cannot be raised by the Applicant to justify existence and survival of this application which is already lodged out of time. 5 Pursuant to Section 3 of the Law of Limitation Act, (Cap 89 R.E 2019), a time barred matter is liable to be dismissed. This has been the interpretation which our jurisprudence has been given to this provision of Section 3 of Cap 366 cited above. I borrow a leaf from the decision in Registered Board of Trustees of AIC church of Tanzania vs. Sesilia Ramadhani, Labour Revision No. 2 of 2021, High Court of Tanzania, Labour Division, at Dar es salaam also cited by the Applicant which confirmed that:- "once a matter is time barred, it goes to the roots of it also to the court's jurisdiction and therefore liable to be dismissed." The above said answers the question as to what should be done with a time barred application, that the same is liable to be dismissed. In the final result, the preliminary objection is upheld on the reason that, the application was filed out of time. The application is dismissed. Each party to take care of its own cost. It is so ordered. Dated at Dar es Salaam this 31st day of March 2023. KATARINA REVOCATI MTEULE JUDGE 31/03/2023