john butabile vstanzania fisheries research institute 2020 tzhcld 3856 19 november 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 507 OF 2020 (Originating from Labour Dispute No. CMA/DSM/ILA/598/09/947/2010) BETWEEN JOHN BUTABILE........................................................................ APPLICANT VERSUS TANZANIA FISHERIES RESEARCH INSTITUTE SPONDENT RULING The applicant, John Butabile filed the present application in this court seeking for extension of time within which to file in the court the application for revision of the decision of the Commission for Mediation and Arbitration (hereinafter referred as the CMA) delivered in Labour Dispute No. CMA/DSM/ILA/598/09/947. The application was supported by the affidavit of the applicant together with his supplementary affidavit and it was opposed by the respondent through the counter affidavit sworn by Janeth Rajabu Makondoo and counter affidavit to the applicant's supplementary affidavit sworn by Happiness Nyabunya, both Senior State Attorneys. i When the application came for hearing on 13th April, 2021 the applicant prayed to argue the application by way of written submission and his prayer was granted, hence the application was argued by way of written submission. In his submission in support of the application, the applicant prayed to adopt his affidavits to form part of his submission. He stated that, the proceedings of the CMA in the labour dispute number CMA/DSM/ILA/598/09/947/2010 JR mentioned hereinabove are tainted with illegality as they have two a. distinct awards. He stated the first award is dated 25th October, 2013 and it .ft, * awarded him Tshs. 7,679,880/= and the second award is dated 31st October, 2013. He stated that, both awards were pronounced and signed by Hon. Mwidunda, Arbitrator and were sealed with the CMA's seal. He cited in his submission the case of Lyamuya Construction Company Ltd. V. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Appeal No. 02/2010 which provides for guidelines to be followed in determining an application for extension of time. He stated that, the guidelines laid in the above cited case for determination of an application for extension of time are to the effect 2 that; (a) the applicant must account for all period of delay, (b) the delay should not be inordinate, (c) the applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action he intends to take and (d) if the court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. He submitted that, when the Arbitrator delivered the award dated 31st October, 2013 the CM A-.had already became fanctus officio. To support his submission cited the case of FINCA (T) Ltd. & A Another V. Boniface Mwalukisa, Civil Application No. 589/12 of 2018 where the Court of Appeal cited the case of TANESCO V. Mufungo Leonard Majura and 15 Others, Civil Application No. 94 of 2016 where though it was found the applicant had failed to v * Kr account for the delay in lodging the application but the court used the ground of illegality found in the impugned decision to grant extension of time. At the end he prayed the court to grant his application. In his reply, the counsel for the respondent stated in detail that the decision of the CMA was read, signed, stamped and delivered to the parties on 31st October, 2013. He stated there is no any other 3 award issued by the CMA on the previous dates. He argued that can be reflected in various application filed in the court by the applicant, where he only attached the decision dated 31st October, 2013. He submitted that, the award purported to have been delivered on 25th October, 2012 was introduced by the applicant on 16th November, 2020 through his supplementary affidavit. The counsel for the respondent submitted that, the main task of the court is to examine the affidavit of the applicant to see whether the applicant was delayed by sufficient reasons to apply for revision of the award of the CMA. He restated the guidelines for granting % a J? extension of time formulated in the case of Lyamuya Construction Company Ltd. (supra) and submitted that the applicant has failed to adduce good cause and sufficient reason for the delay to file his application in the court within the time prescribed by the law. He . rxv submitted that, the applicant has failed to establish the issue of illegality he raised in his supplementary affidavit and prayed the application be dismissed for being frivolous and vexatious. In his rejoinder, the applicant reiterated what he submitted in his submission in chief and added that, the duty of the court in the application at hand is to consider whether there exists a sufficient 4 cause to warrant granting of extension of time and not to go into the merit of the application for revision. He support his submission by the case of British Broadcasting Corporation V. Eric Sikujua Ng'maryo, Civil Application No. 138 of 2004 (unreported). He stated that, the argument by the counsel for the respondent that he has raise the issue of illegality in his supplementary affidavit as that issue was not raised in the previous applications has no any merit. He argued that, the issue of illegality he has raised is touching jurisdiction of the decision maker and said he was functus officio. He 1 W argued that the present application has merit and is not frivolous and vexatious as argued by the counsel for the respondent. Having carefully considered the submission made by both sides and after going through the affidavits and the records of the matter, the court has found that, as rightly stated by both sides the court is < > required to determine whether the applicant has managed to establish there is good cause for granting him an order for extension of time is seeking from this court. The reason for framing the said issue is because Rule 56 (1) of the GN. No. 106 of 2007 upon which the application is made requires good cause for granting extension or abridging any period of time prescribed by the law. 5 The court has found it is true as rightly argued by the counsel for the respondent that, although the applicant raised in his affidavit and supplementary affidavit several causes for being granted the order of extension of time is seeking from the court but he argued only one cause, which is about illegality of the proceedings and the impugned awards of the CMA he wishes to challenge in the intended revision. % & Uh n 10 The alleged illegality as raised at paragraph 6 of his supplementary affidavit is about issuance of two awards by the same Arbitrator on the same dispute and the same parties but with different reliefs. The court has found it is apparent from the record of the matter and the affidavit supporting the application that, the applicant has filed several applications in this court. The record of the present application reveals that, in all the applications none of them was aimed on challenging the award alleged was issued on 25th October, % < 2013 which shows the applicant was awarded Tshs. 7,679,880/=. They were challenging the award issued on 31st October, 2013 which awarded the applicant Tshs. 8,004,630/=. The court has found that, although the issue of award dated 25th October, 2013 raised in the supplementary affidavit of the applicant to co-exist with the award dated 31st October, 2013 has not been 6 raised in the previous applications filed in the court by the applicant but the court has found that is a serious allegation of illegality which cannot easily be brushed out as argued by the counsel for the respondent. That is because the alleged illegality is touching jurisdiction of the CMA in issuing the impugned award dated 31st October, 2013. To the view of this court and as held in the case of A, the Lyamuya Construction Company Ltd. (supra) that is a point of law of sufficient importance which the court is required to use its discretionary power to grant extension of time the applicant is seeking from the court. ■% & The aim of granting the sought order of extension of time is for the purpose of enabling the court to look into the alleged illegality f % W"’ and if it will be established to enable the court to put right the record r'fek. W&s -J& of the CMA for the interest of justice to triumph to both parties in the matter. The above stated view of this court is getting support from the case of Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] TLR 182, where it was held inter alia that:- "In our view when the point at issue is one alleging illegality of the decision being challenged, the court has a duty, even if it means extending the time for the purpose, to ascertain 7 the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right." The court has considered the argument by the counsel for the respondent that the allegation by the applicant that there is illegality in the proceedings of the CMA is an afterthought as the applicant is seeking extension of time to revise the award of the CMA dated 31st ; oj- October, 2013 and not the award of 25th October, 2013 but failed to see any merit in the stated argument. The court has found the argument that the proceedings of the CMA contain two distinct awards issued on different dates by the same Arbitrator and in the same matter is an apparent illegality on the face of the record. It is not an illegality requiring long process of evaluating the matter to reveal the same and it is not frivolous and vexatious matter as argued by the counsel for the respondent. It is because of the above stated reasons the court has found there is sufficient and good cause to use its discretionary power to grant the order of extension of time the applicant is seeking from this court. In fine the applicant is granted extension of time to file in this court his intended revision against the decision of the CMA issued in 8 Labour Dispute No. CMA/DSM/ILA/598/09/947/2010. The intended revision to be filed within fourteen (14) days from the date of this ruling. It is so ordered. Dated at Dar es Salaam this 19th day of November, 2021 I. Arufani JUDGE 19/11/2021 Court: Ruling delivered today 19th day of November, 2021 in the presence of the applicant in person and in the presence of Ms. Happiness Nyabunya, Principal State Attorney for the Respondent. Right of appeal explained to the parties. Arufani JUDGE ^719/11/2021 9