janeth david mlasiadministratrix of the estate of the late david george mlasi vs tanzania ports authority 2023 tzhc 20116 11 august 2023

IN T HE H I G H C O U RT O F T H E U N I T E D R E P U B L IC O F A ( I N T H E S U B R E G I S T RY O F K I G O M A ) A T KI G O M A M I S C .L A B O U R A PP L I CATIO N N O. 0 4 O F 2 0 2 2 (Arising from High Court Labour Revision No.2 of 2022, origin ting from CMA/KIG/DISP/89/2018.) JANETH DAVID MLASI (Administratrix of the Estate of the Late DAVID GEORGE MLASI) APPLICANT VERSUS TANZANIA PORTS AUTHORITY RESPONDENT Date of last Order: 19/07/2023 Date of Judgement: 11/08/2023 RULING MAGOIGA, J. The applicant, JANETH DAVID MLASI preferred this application under the provisions of Rule 24(2)(a), (b), (c), (d), (e), and (f) 24(3) b), (c), ( d), Rules 55(1) and 56(1) of the Labour Court Rules G.N. No. 10 of 2007 and any other enabling provisions of laws praying that this ourt be pleased to grant the following orders: - 1. Extension of time to file an application for revising the decision/award by the Commission for Mediation and Arbitration for Kigoma in Employment Dispute No. CMA/KIG/DISP/89/2018 dated th 24 February, 2022 following the striking out of the Applicant's Labour Revision No. 2 of 2022 on gth September, 2022; ~ 1 2. Costs of this application. 3. Any other relief deemed just and fit by the Court be granted. The application was accompanied by the affidavit of the applicant stating the reasons for grant of the prayers sought. Upon served with this application, the respondent, filed counter affidavit stating the reasons why this application should not be granted. When the application was called on for hearing, the applicant was advocated by Mr. Ignatus Kagashe, learned advocate, while the respondent enjoyed the services of Messrs. Celestine Ngailo and Nickson Ntengesi, leaned State Attorneys. Mr. Kagashe arguing this application adopted his affidavit in support of the application and pointed out that after the order striking out the application, they urgently filed this application on 19/9/2022 after being granted all documents on 12/9/2022. The application was filed within six days so diligent in the circumstances. The six days are necessary for the preparation of the application. To buttress his stance, Mr. Kagashe referred to this court the case of Vodacom vs TRA, Civil Application No. 101/20 of 2021 CAT at Dodoma, where it was stated that 12 days were reasonable in the preparation of the application. st The learned advocate, thus, pointed out that the 1 application was in time, hence, this court to be guided by the case of Masha vs Shija ~ 2 [1997] TLR 41 in which it held that technical delay should be onsidered as in this application and invited this Court to find that there wa technical delay and proceed to grant this application. In reply, the respondent adopted the counter affidavit affirmed by Ramadhan Ngogo and strongly opposed the application and ged the court to dismiss this application. According to the learned State Attorney Ngailo, the dismissal of e former application was due to negligence on the part of the advocate for the applicant. On that note, the learned Attorney argued that negle nce can not be a ground for technical delay as held in the case of Kambona Charles vs Elizabeth Charles, Civil Application No. 529/179 of 2019 CAT at page 7 that neglegence of an advocate cannot b used to get condonation. He therefore pointed out that no sufficient c se has been shown to warrant grant of the application. Further, Mr. Ngailo strongly pointed out tha the decision of CMA given on 24/2/2022 so counting from that date to 19/9/2022 it was m e than 5 months and 3 weeks which is inordinate delay which ca ot be condoned. The learned Attorney further argued that the applicant can not b aved by the principle of technical delay. He referred to the case of C.G TRA vs Urban J. Mtui, Civil Application No.532/01 of 2017 CAT in which it ~ 3 w a s h e ld a t pa g e 6 th at p ro ce ed in g s tha t w a s p ros e c u ting a n in c o m p eten t a p p lica tu io n d o n ot a pp ly h e re . M r. N ga ilo fu rth e r a d d ed th a t n o account fo r e ac h d a y of d e lay th o u g h th e d e lay is fo r m o re than 1 7 0 d ays . T o s u p p o rt h is sta n ce M r.N ga il o c ite d th e c ase o f Ultimate Security LTD vs Chande Ally Lubugile and 3 others, Civil Application No. 428/01 of 2021 HCT at Dar es salaam where it was held at page 13 that where no accounting of each day of delay is given the application is to be dismissed. Consequently, the learned state Attorney prayed for the application to be dismissed with costs. In rejoinder, Mr. Kagashe argued that in the ruling nowhere it was said that the counsel for the applicant was negligent but it is the learned Attorney's own creation. The applicant was not in town but prosecuted the case. Mr. Kagashe insisted that six days were reasonable in the circustances. On the cases cited, the counsel argued that they were distinguishable. He reteirated his prayers in chief. The task of this court now is to determine the merits or otherwise of this application. Having carefully followed and considered the competing arguments on this point, I have noted that there are some facts not in dispute. These are: one, there is no dispute that the first application for revision was filed within time but was found incompetent and as such ~ 4 th s tru ck o u t o n 9 September, 2022 for want of notice of rep ntation. Two, there is no dispute that, the instant application was filed on 19th September, 2022, six days after being supplied with the ruling/order of the court. However, from the parties' competing arguments, in my onsidered opinion, what is at issue is whether this application is saved b technical delay or not. According to Mr. Ngailo, this application cannot b aved by the technical delay because the first application was struck out due negligence of an advocate, as such with no accounting for ea h day of delay. He cited the case of The Commissioner of General of TRA and Attorney General Vs. Urban J. Mtui (supra). While on the other , of the applicant, Mr. Aliki argued that this is a fit case for app cation of the technical delay and six days of delay were reasonable for pre aration of this application. In support of his stance cited the case of William Shija Vs. Fortunatus Masha [1997] TLR 213 and Vodacom Tanzania Public Limited Company Vs. Commissioner Ge eral of TRA (supra). I have had time to read and consider the two decisions cited by the learned trained legal minds for parties, but with due respect to Mr. Ngailo, the case cited is distinguishable because not only that the Court of Appeal found the applicant was negligent but was also the second applicati~ 5 w a s w ro n g ly fil ed in w ro ng co u rt . T h is is b eca u se th e C o u rt of App e a l at p a ge 4 of th e ty p ed jud g e m e n t h e ld tha t th at 'therefore, the delay between the lodging of notice of appeal and striking it out, which was on 23rd October, 2021, was a mere excusable technical delay.' Equally in this application, the period between the lodging of the th first application and the day it was struck out on 09 day of September, 2022, is a mere excusable technical delay and is in line with the celebrated case on the point of Shija Vs. Masha (supra). On that note, I associate myself with the argument by Mr. Kagashe that this application qualifies for technical delay from when it was filed to the day it was struck out l.e. on 9th Septem ber, 2022. Next, I shall now consider whether the six days delay were justifiable in the circumstances of this application. Mr. Kagashe forcefully argued that the six days were reasonable delay and were used for preparation of this application and its filing. He cited the case of Vodacom vs. CG TRA (ip cite) to justify his stance in which it was held that days used to draft an application are excusable. On the other hand, Mr. Ngailo argued that days have to count from 24/02/2022 to 19/09/2022 and to him this was an inordinate delay that was not accounted for. Having carefully considered the com peting argum ents on this point, again with due respect to Mr. Ngailo, he missed the point and argued this point ~ 6 o u t o f ig n o ra n ce . I w ill e xp la in ; o ne , th e fi rst re vis io n was n o t stru c k o u t b e c ause the sa m e w as fi led o u t o f tim e , so coun ting fro m 2 4/0 2 /2 0 2 is w ro n g an d m isle a d in g . T h e co u n tin g h as to sta rt fro m 12 .0 9 .2 0 2 2 . Tw o, g u ide d b y the case o f V o d a co m ( op c it) w h ich fo u nd 12 d a ys as exc u sa b le a n d reaso n a b le in p re p a ra tio n o f th e a pp lica tio n a nd m u ch a s in th is a pp lic a tio n th e de la y w a s on ly six d a ys a re e q u a lly reaso b le . T he a rgu m e n ts b y M r. N ga ilo a re co n s id e red bu t fou n d fa r fro m co n v inc ing th is cou rt to a g ree w ith h im , h e n c e , reje cte d . Th a t sa id a nd d o ne , th is a p p lic a tio n is h e re b y g ran ted w ith n o o e r a s to costs th is b e ing a n e m p lo y m e n t d isp u te . T h e a pp lica n t is given 21 days from today within which to file the revision. It is so ordered. 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