jonathan charles makima vs st benedict health centre 2023 tzhc 1266 5 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM MISC. LABOUR APPLICATION NO. 67 OF 2023

BETWEEN JONATHAN CHARLES MAKIMA.................................................. APPLICANT

VERSUS ST. BENEDICT HEALTH CENTRE............................................. RESPONDENT

RULING Date of last Order: 25/ 04/2023 Date of Ruling: 05/ 05/2023 MLYAMBINA, J. One of the elementary principles of law is that; an application for extension of time in respect of any judicial or quasi-judicial proceeding should not be preferred irresponsibly. There must be sufficient or powerful reasons and the Applicant must account for each day of delay. The law aims to obviate or limit unnecessary proceedings and to ensure that litigants do not come to Court for extension or condonation to waste its precious time and of the adverse party. But humanly, litigants tend to test the Court even when their applications are manifestly hopeless. The instant application seeks for extension of time to file revision against the decision of the Commission for Mediation and Arbitration (herein CMA). It has been made under Rule 24(1), (2) (a), (b), (d), (e) and (f), 3(a), (b), (c) and rule 56(1) o f the Labour Court Rules GN. 106 o f 2007). The main issue is; whether the supporting affidavit contains sufficient reasons warranting grant of the application. The affidavit of Jonathan Charles Makima, the Applicant is clear on the following facts: One, there was an Application in the CMA, whereby the Applicant filed a dispute concerning the unfair termination done by the Respondent. The the dispute was through mediation. Two, the dispute was heard ex-parte and ex-parte Award was pronounced by

Hon. Makayanga, A. Three, the Applicant filed Execution Application No. 417 o f2020 to the High Court. Four, the Respondent filed stay of execution pending determination of application to set aside ex-parte Award in the CMA. Five, the ruling of an application of setting aside ex-parte Award was delivered on 17/7/2020. Six, the Applicant received the ruling for Application No. CMA/DSM/ILA/R.941/19/73/2020 which made restoration of ex-parte Award. The Applicant did not receive any summons to appear. Seven, the application for Execution No. 417 o f2020 of the Award in the High Court Labour Division was set aside. Eight, the Applicant being aggrieved by such decision, wrote the letter with reference number AB. AB 49/69/01/47 to the District Commissioner to show allegations on the matter. Nine, the Applicant being aggrieved by such decision, knocked the door of the Prevention and Combating of Corruption Bureau (PCCB) to show the allegation of injustice where the names of the Applicant and the application number was different with that of the Applicant. There was no response. Ten, the Applicant was aggrieved by such decision knocked the door of the Judge in-charge of the High Court Labor Division to show his allegations on the matter and the Registrar In-charge replied the letter with reference number AB52/237/01/75. The supporting reasons were counter denied by Counsel Loy Sehemba,

the Respondent Legal Counsel who represented the Respondent in all applications filed by the Applicant including the Labour Dispute at the CMA. It was a counter sworn testimony of Counsel Loy Sehemba that the ruling to set aside the ex-parte Award was delivered on 13th August, 2021 by Hon. Igogo, Arbitrator. Thereafter, the Respondent made an application to set aside ex-parte Award. The CMA, on 13th August, 2021 allowed the application and set aside ex-parte Award which was delivered on 17th July, 2020 by Hon. Makanyaga, Arbitrator. The Applicant received the summons which was duly served to him by the Court Process Server but chose not to appear. The Respondent clarified that the High Court proceedings in Application for Execution No. 417/2020 was struck out by this Court on reason that the Award under execution has been set aside by the Ruling of the CMA dated 13th August, 2021. The said letter is dated 12th April, 2021 while there was no any application for execution. The same letter advised the Applicant to appeal if he was aggrieved by the CMA decision. The Respondent averred that; it has been a tendency of the Applicant delaying matter by writing letter to different authority without any justifiable cause. A reply from PCCB advised him the same to appeal if he was aggrieved by the decision of this Court delivered on 16th September, 2021 and the other ruling of

5th October, 2021. Further, this Court advised the Applicant to seek and appeal to orders of this Court if he was aggrieved. It was the sworn testimony of Counsel Loy that the Applicant failed to account for each day delayed after expiration of six week from the date the Applicant received the said Award. Thus, justice requires end of ligation. The Respondent is avoiding due process and aiming wilful to taint the Respondent with bad images. At the hearing, the Applicant reiterated his position that he never filed case No. CMA/DSM/ILA/941/19 before CMA. His case was CMA/IIA/R.941/19/73/2020. The employer did not attend the case before CMA. The source of delay to file revision was of complaining before the District Commissioner, PCCB and before this Court. In response, Counsel Loy reiterated her objection to the application on merits. On analysis, I am unable to accept the Applicant's submissions. As replied by Counsel Loy, the records shows that all the letters addressed to the District Commissioner were replied on 12/04/2021. The impugned decision was yet delivered. Such letter directed the Applicant on what should be done. If not satisfied, he was advised to appeal. The impugned decision was issued on 19/8/2022. There is no dispute that Section 91(l)(a) o f ELRA (supra) requires the aggrieved party to file Revision within 42 days. Both parties were issued with a copy of

decision on 19/8/2022. 42 days expired on 30/09/2022. The Applicant filed this case on 13/03/2023. That was a delay of 164 days. Though it is right significantly to relax the limit imposed by Section 91(l)(a) o f ELRA (supra), but there must be good or powerful reasons so to do. In this application, however, the Applicant has not accounted for each day of delay on the 164 days. Ruie 56(1) o f G.N. No. 106 o f 2007 requires the Applicant to adduce sufficient reason. The position was reached in the case of Blue Line Enterprises Ltd v. East African Development Bank, Misc. Application No. 135 of 1995, Court of Appeal of Tanzania at Dar es Salaam (unreported), where it was held: ...it is trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, upon sufficient cause being shown which has to be objectively assessed by Court. Equally, in the case of Arisony Gilman v. A to Textile Mills Ltd, High Court Labour Division at Arusha, Revision No. 06/2013 (unreported) this Court held inter alia that: What amounts to sufficient cause has been defined from decided cases, a number of factors has to be taken into account including whether or not the application has been brought promptly, the absence of any valid explanation

for the delay, lack of diligence on part of the Applicant. It is a general but invariably principle of law that every extension of time must be supported with good reasons. Each case has to be treated on its own depending on the grounds adduced. At any yardstick, the reasons of complaining to the District Commissioner or to the PCCB or administrative complaint to this Court can not be helpful to the Applicant on extension of 6 time. The Applicant should had complied with the law requirement rather than finding ways of interference with judicial powers. On such basis, the Applicant decision to pursue the matter politically is not a good ground for the grant of extension of time. In fact, pursuing a judicial matter through political platform is a pure irresponsible action which cannot rescue a delayed legal action or an intended legal action. This is also the position in the case of Helen Jacob v. Ramadhan Rajabu [1996] TLR 139 where it was held that: Political solution out of court does not constitute any explanation for failing to appeal in time. With the above point of principle, the Applicant was required to file revision if aggrieved with the CMA decision within 42 days. In the result, the application is hereby dismissed for being devoid of merits. Order accordingly.

JUDGE 05/ 05/2023 Ruling delivered and dated 5th May, 2023 in the presence of the Applicant in person and Counsel Loy Sehemba for the Respondent. ■ *\\Y.J. MLVAMB1NA

JUDGE 05/ 05/2023 I 8