LABOUR REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA LABOUR REVISION NO. 19 OF 2023 (Arising from Commission for Mediation & Arbitration Labour Dispute No CMA/ARS/ARS/127/2022) JOHN MOMOYA APPLICANT VERSUS FLAMINGO SAFARI LODGE RESPONDENT JUDGMENT 23/05/2024 & 12/07/2024 BADE, J. This Judgment is against a Revision Application that is made under sections 91(1) (a) and (b), (2) (a) (b) (c) and 94(1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004 and Rule 24(1), (2), (a),(b), (c), (d), (e), (f), (3) (a), (b), (c), (d), and Rule 28 (1) (a) (b) (c), (d) and (e), of the Labour Court Rules, G.N. No. 106 of 2007. The Applicant prays for the following orders: i. That, this Court be pleased to call for and examine the records of the proceedings of Commission for Mediation and Arbitration of Arusha in Application No. CMA/ARS/ARS/127/2022 and satisfy 'age 1 of 14 itself as to the correctness, legality, and/or propriety of the Ruling thereto. ii. Any other orders that this Honourable Court deems fit and just to grant. A brief background that leads to this Application according to the records of this Revision Application is that the Applicant was employed by the Respondent as a Security Guard from 01/02/2017 to 10/08/2020 when the Respondent terminated his employment. After his termination, the Applicant started to seek legal aid in various bodies, ranging from Law offices to Regional Commissioner’s office. The Applicant also went to the Office of Conservation Hotels Domestic Social Services and Consultancy Workers Union (CHODAWU) and the effort was made to cause the Respondent to attend at their office for reconciliation without any fruition as he refused to attend. The Secretary of CHODAWU helped the Applicant draft the necessary documents for the institution of complaint before the Commission for Mediation and Arbitration. Unfortunately, the said documents were found to be defective. By that time, the time to file a complaint before the Commission had already lapsed, hence he applied for condonation based on the reason that his delay was caused by the Applicant's effort as he undertook to seek legal ige 2 of 14 help in various bodies, ranging from law offices to the office of member of parliament of Karatu constituency and failure by the secretary of CHODAWU to help the Applicant to institute a proper complaint before the Commission, and by preparing the Applicant's case negligently and recklessly. After a full trial, the CMA dismissed the Applicant's Application for condonation based on the reason that he had not provided sufficient reasons for the Commission to extend time. The Commission further reasoned that the Applicant had delayed filing his Application more than two years, that the delay is excessive and it cannot be tolerated in the administration of justice. Being aggrieved by the said decision he preferred the present Application. When Application was called for hearing, the Applicant appeared in person, unrepresented whilst Mr. Arnold A. Tarimo learned advocate appeared for the Respondent. This Application was disposed of by way of written submissions. Supporting the Application, the Applicant prayed to adopt Notice of Application and his affidavit to be part of his submission, submitting that he was late for two years and three months from the date the cause of action arose, and this was caused by the efforts that the Applicant took Z\page 3 of 14 to seek legal help in various bodies including the law offices of the Regional Commissioner at Arusha and the office of the member of the Parliament of Karatu Constituency. The Applicant further argues that, the actions taken by the secretary of CHODAWU in preparing the Applicant's case negligently and inefficiently caused the delay in filing the complaint. He submitted further that the delay was not with negligence or sloppiness on his part but rather it was from the authorities he approached while believing that he would have obtained legal aid including failure by the secretary of CHODAWU for Karatu to enable the Applicant to properly institute his complaint before the Commission with the consequence of delaying the said complaint rendering the same to becoming time barred. The Applicant further contended that in his affidavit he gave details to the Commission on the efforts he had made to claim his rights, including on reporting his termination to CHODAWU offices where it made fruitless contact with the Respondent. That, they wrote a letter to the Respondent on 13/10/2020 so that they may reconcile but the responded did not appear. He added that after attempt to reconciliation failed, the secretary of CHODAWU was authorized by the Karatu District of 14 Administrative Secretary to prepare an Application for condonation, however on their negligence, the CMA Form No. 2 was not accompanied with the Notice of Application and Affidavit as required by the law. He insisted that this was not negligence on his part, being a layperson. He earnestly believed he had done his effort diligently. He contends that to show that he did not sleep on his right, upon failure to receive satisfactory legal aid from all the bodies he approached the Legal and Human Rights Centre at Arusha and he was helped to institute the present Application. The Applicant argues that where extension of time is sought, the Applicant should be granted upon demonstrating sufficient cause for the delay, which cause depends on deliberation of various factors some of which revolve around the nature of actions taken by Applicant immediately before or after becoming aware that the delay is imminent or might occur. Urging this court to heed to his claim, he restate the legal position that the power to extend time is a discretionary power to judicial bodies, it is in the decision maker's hands to either grant or deny an Application for extension of time, adding his understanding that the discretionary powers are to be used judiciously, adhering to the principles of natural justice to ensure that every party is given the right to be heard as well as a fair trial. , Page 5 of 14 He further submitted that, it is an elementary principle of the law that natural justice demand, that every person be heard on fair terms, a right which is also enshrined in the Constitution under Article 13 (6) (a) and has also been conversed by the courts in several cases. He added that the denial of the extension of time by the Commission deterred the Applicant from his right to be heard causing breach of his constitutional right. To support his position, he cited the case of Higher Education Student Loans Board (HESLB) VS Gabriel Robi, Misc. Application No. 179 of 2020. The Applicant alluded that the Commission being the body responsible for dispensation of justice, should have done away with legal technicalities which intended to impede dispensation of justice, cementing his position with Article 107A (2) (e) of the Constitution. That the Commission being a court of equity and should not be tied with technicalities as it endeavours to ensure equality, fairness and justice are adhered to. In further argument, he maintains that if extension of time will not be granted it will prejudice him especially because his rights would have not been determined and the Commission will have closed the doors to justice. That, to granting this Application will be advantageous to both ige 6 of 14 parties as it will get them an opportunity to be heard on merit. He insisted that his complaint is candid and will not cause any prejudice, other than allowing the Applicant a chance to claim his rights. To cement his position, he cited the case of Mobrama Gold Corporation vs Minister of Energy & Minerals and 2 Others [1998] TLR 425. Opposing the Application, Mr. Tarimo adopted the contents of the counter affidavit to form part of his submission, and contended that the issue to be determined before this court is whether the Applicant has adduced sufficient reasons warranting this court to revise the Ruling of the CMA. That, at CMA the Applicant's Application was dismissed inter- alia for reasons that the delay was too inordinate, for failing to adduce sufficient reasons for the delay and lastly for failing to account for every single day of delay. Mr. Tarimo contended further that the law is now settled that in order for an Application for extension of time to be granted, the Applicant must account for all the period of delay. Secondly, the delay should not be inordinate, thirdly, the Applicant must show diligence and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take, and lastly, if the court feels that there are other sufficient reasons such as existence of a point of law of sufficient importance such of 14 as illegality of the decision sought to be challenged. To support his position, he cited the cases of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) and the case of Ngao Godwin Losero vs Julius Mwarabu, Civil Application No. 10 of 2015. Arguing further, he claimed the Applicant was supposed to fulfil the above-named conditions for an Application for extension of time to be granted, but he failed to do so. He added that trial Arbitrator was correct when he found that the Applicant neither adduced sufficient reasons for the delay, nor account for every single day of delay, and the delay was too inordinate. Mr. Tarimo's contends that Applicant was negligence in pursuing his matter. He insisted that the arbitrator found as a fact that the length of delay was more than two years, and as such cannot be tolerated in the administration of justice. That, the Applicant pleaded ignorance of the law as a good cause for extension of time. He further argues that, the law is certain that ignorance of the law is not a defence and that it has never featured as a good cause for extension of time. To buttress his position, he cited the case of Bariki Israel vs The Republic, Criminal Application No. 4 of 2011. of 14 Mr. Tarimo further contended that Applicant pleaded that, he took necessary steps to resolve the matter out of Commission but in vain as a good cause of extension of time. That, this Court and the Court of Appeal has several times insisted that negotiations out of the court is not a good cause for extension of time. To cement his position, he cited the case of Alex Leole vs Tanzania Portland Cement Co. Ltd, Civil Application No. 259 of 1997 (Unreported) and the case of Helphe E. Mmari vs Mount Meru University, Revision Application No. 108 of 2021. Mr. Tarimo insisted that Applicant failed to account for every single day of delay as the delay was over two years, that is inordinate delay, while it was required of him to show that he met all the conditions precedent for an order for extension of time to grant. Having gone through the record of this Revision Application and the rival submission by the parties, the task before me is to determine whether the Applicant adduced sufficient reasons for the delay to file his intended Application at Commission out of time. The basis of the arbitrator's decision is that the Applicant had failed to adduce sufficient reason for the delay as negotiation out of court does not constitute sufficient ground for parties to bypass the law of Page 9 of 14 limitation since the party should negotiate against the limitation of time for the cause of action. Rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules GN 64 of 2007 provides that: "Disputes about the fairness of an employee's termination of employment must be referred to the Commission within thirty days from the date of termination or the date that the employer made a final decision to terminate or uphold the decision to terminate." On the other hand, it is trite law that sufficient reason is a pre-condition for the Court or Commission to grant extension of time. The same is provided for under Rule 31 of the Labour Institutions (Mediation and Arbitration) Rules GN 64 of 2007 which provides: "The Commission may condone any failure to comply with the time frame in these rules on good cause." It is on the record that Applicant was terminated on 19/08/2020 and he made an Application for condonation on 13/12/2022 which is after a lapse of two years and four months. The reasons the Applicant adduced being the cause of delay is that efforts made by CHODAWU to call Respondent for negotiation bearing no fruits and searching for legal Page 10 of 14 assistance. Obviously, the reason offered by the Applicant that he delayed due to an attempt to negotiate with the Respondent, as correctly argued by Mr. Tarimo does not constitute sufficient cause for extension of time. In the case of M/S. P &O International Ltd vs The Trustees of Tanzania National Parks (TANAPA), Civil Appeal no 265 of 2020 the court had held that: - " ...it is trite that pre-court action negotiations have never been ground for stopping the running of time.... Nor are the statute of limitation defeated or its operation retarded by negotiations for a settlement pending between the parties" Similarly, this court in Makamba Kigome and Another vs Ubungo Farm Implements Limited & PRSC, Civil Case no. 109 of 2005 (unreported) his Lordship Kalegeya, J (as he then was) stated: "Negotiations or communications between parties since 1998 did not impact on limitation of time. An intending litigant, however honest and genuine, who allows himseif to be lured into futile negotiations by a shrewd wrong doer, plunging him beyond the period provided by law within which to mount an action for the Page 11 of 14 actionable wing wring, does so at his own risk and cannot front the situation as defence when it comes to limitation of time" Further, it was decided in a case of Fidelis Fernandes vs National Insurance Corporation (T) Ltd and PSRC, Civil Case No. 26 of 2006 quoting the famous case of Julius Kamote and 139 Others vs Tazama Pipelines Co Ltd, Revision No. 137 of 2015, where it was held that: "... the plaintiff sueing after the expiry of time will be barred even where the defendant has betrayed him into fruitless negotiation. That, negotiation between the parties cannot defeat the statutes, and the plaintiff who is negotiating should nevertheless file a suit." The stated legal position is time-honoured and there is no going around it. However unfortunate it may be for the applicant the law limiting actions is neither sympathetic nor equitable. Apart from waiting for the fruitless negotiation, the Applicant failed to account for each day of delay as he was late for two years and four months; days which were uncounted for. Another reason adduced by the Applicant is that he was searching for the legal assistance as he is a layperson. This reason could hold water if Page 12 of 14 not make any sense, legal or otherwise, that the Applicant was searching for legal assistance for two years and four months. This is certainly an inordinate delay associated with sloppiness and negligence in the prosecution of the action that he intends to take. The Trial Arbitrator cannot be faulted and was right when dismissing the Application for condonation having found that the Applicant failed to account for the delay and the delay was inordinate. Thus, for the foregone reasons, I find that the Applicant had failed to adduce good cause for the delay. I do uphold the decision of the Commission for Mediation & Arbitration. The instant Application stands dismissed for want of merits. No order as to costs. It is so ordered. DATED at ARUSHA this 12th day of July 2024 A. Z. Bade Judge 12/07/2024 Page 13 of 14 Judgment is delivered in the presence of the Appellant and the Respondent / their Representative in chambers on the 12th day of July 2024. A. Z. BADE JUDGE 12/07/2024 Page 14 of 14