juma nassir mtubwa vs namera group of industries ltd 2020 tzhcld 2 30 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO 251 OF 2019 JUMA NASSIR MTUBWA.................................. APPLICANT VERSUS NAMERA GROUP OF INDUSTRIES LTD........ RESPONDENT JUDGMENT Date of last Order: 19/02/2020 Date ofJudgment: 30/03/2019 Z.G.Muruke. J. The applicant JUMA NASSIR MTUBWA, filed present, seeking for revision of the ruling issued by Commission for Mediation and Arbitration, (herein to be referred as CMA) on 20th March, 2017, in Labour dispute no. CMA/DSM/ILA/R.810/16 by Hon.Mkenda, S, Mediator that was in favour of the respondent. The CMA dismissed the applicant's application for condonation having failed to establish good cause for the delay to warrant grant of the same. Application is supported by affidavit of the applicant Juma Nassir Mtubwa. In opposition, respondent filed a counter affidavit sworn by Fatuma Juma Matoto, the respondent's principal officer. Hearing was by way of written submission, both parties adhered to the schedule hence this judgment. The applicant was represented by Mr. Hamza Suleiman Rajabu, personal representative. While the respondent was represented Victoria G. Mgonja, Advocate. i Briefly are the facts that led to this application. On 3rd March, 2008, the applicant was employed by the respondent as a machine operator, paid the wage of 80,000/= per month. On 25th January, 2011 while performing his duties, the applicant was stuck on the machine and got serious injuries that caused amputation of his right arm. As a result of the accident, the applicant was not able to perform his duties, thus, the Doctor advised to be given light duties. The applicant approached the respondent officers where he was informed that, the respondent was looking for appropriate work position. Consequently the process delayed. As a result on 1st March 2016, the applicant was restricted by the security guards to get into the office. He therefore decided to knock the CMA doors seeking remedies of his employment, and the complaint was dismissed for lack of sufficient cause. The arbitrator failed to consider the following facts; One; the accident faced the applicant at work place and caused his disability, two; the medical report which formed part of the affidavit, three; failure of the respondent to discharge his duty to adhere the requirement of the laws in ill health or disability caused by accident at work place, four; failure to determine the status of the employment contract between the parties. Applicant representative maintained that the mediator improperly concluded that, there was no good cause for the delay and shifted the burden of proof to the applicant contrary to the law, referring the case of Bulyanhulu Gold Mine V Babu Mamdali Meghji, Rev no. 78/2015,Bulyanhulu Gold Mine V Boaz Masalu Rev 79/2015 and Bulyanhulu Gold mine V Sylvester Paulo Chagato, Revision No.82 of 2015 Labour division , Consolidated and the case of General Secretary 2 Ministry of Defense and National Service V Davram Valambia ,1992 , TLR 387. He thus prayed for revision and set aside of the CMA's ruling. On the other hand, the respondent contended that, the applicant filed the dispute before CMA after 68 months late. The reason that the employer promised to call him back to his employment after increase of production, is not sufficient cause for condonation. The applicant cannot rely on mere promise from his employer. It was further stated that, the applicant failed to explain how that promise caused his delay as he could have acted diligently, More so the applicant has failed to account on each day of his delay. The respondent counsel argued that, the applicant explained the facts of the case instead of justifying why condonation should be granted. His grounds for revision based on the main case and not the reason for his delay to file his dispute on prescribed time, referring Rules 10(1) of the Rules and Rule 11 (3) of the Rules. Further the respondent counsel maintained that, the mediator did not error in any way in her decision, as she decided according to the evidence. The dispute never ended prematurely as what was before the CMA was an application for condonation, in which the applicant failed to account on each day of his delay. Victoria G. Mgonja then prayed for dismissal of the application. In rejoinder, the applicant reiterated what he submitted in submission in chief. He added that, the case of John Cornel Vs. A. Grevo (T) Ltd, Civil Case No. 70/1998 should be disregarded, as it is irrelevant in this matter as there is no lacuna in our Employment and Labour Relations Act regarding ill health. Having gone through the rival submission of the parties, this court is called upon to determine whether the applicant had adduced sufficient cause to justify the grant of condonation? Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007 GN No. 64/2007 (herein to be referred as Rules) provides that and I quote:- "Dispute about the fairness of an employee's termination of employment must be referred to the Commission within thirty (30) days from the date of termination within or the date that the employer made a final decision or uphold the decision to terminate." In this case, the applicant filed a labour dispute before CMA after 68 months of delay i.e. 5 years and 8 months. The reason being awaiting for the respondent's promise to find him the proper work that will suit his disability. Linder Rule 31 of Rules, (supra) provides that: "The commission may condon and failure to comply with the time frame in these rules on good cause. Also Rule 11(3) of the same GN provides that: 3. An application for condonation shall set out the grounds for seeking condonation and shall include the referring party's submissions on the following- a) The degree of lateness; b) The reasons for lateness; c) Its prospects of succeeding with the dispute and obtaining the reliefs sought against other party; d) Any prejudice to the other party; and e) Any other relevant factor. From the applicant's submission, it was alleged that, the mediator's decision contains illegality as it has finalized the case without reaching good end of justice. However, he did not explain which illegalities he is referring to. I have also noted that the applicant labored much on justifying on how he was injured, and failed to justify the reason for his delay to file the matter within prescribed time. It is a principle of law that, in any application for extension of time, the applicant must account on each day of his delay. The reason that, in whole 68 months he was waiting for his employer to call him back after production increase, cannot stand as a good cause for condonation. It apparently showing lack of diligence and seriousness on his part. There are various court decisions insisting on counting each day of the delay in applications for extension of time. In the case of Said Ramadhani Vs. Geita Gold Mining Ltd, Misc. Application No 29/2013[unreported] held that: "In deciding the aspect of extension of time the applicant is expected to account cause for delay of every date that passes beyond the prescribed period". Also in the case of Tanzania Fish Processors Ltd V Christopher Luhangula, Civil Appeal No 161/1994 Court of Appeal of Tanzania, at Mwanza registry held that: 5 "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 material 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. Again, in the case of Dr. Ally Shabhay Vs. Tanga Bohora Jamaat [1997] TLR 305 at Page 306, it was held that: "Those who come to courts of law must not show unnecessary delay in doing so; they must show great diligence". Therefore, since the applicant failed to account on each day of his delay, I find no need to fault the mediator's decision that the applicant had no good cause for his delay. It is obvious that, the applicant failed to meet the criteria set out under the Rule 11(3) (Supra). I thus confirm arbitrator's decision that the applicant had not shown good cause for his delay. Application for revision lacks merits, accordingly dismissed. JUDGE 30/03/2020 Judgment delivered in the presence of Hamza Rajabu,Personal Representative for the applicant and Victoria Mgonja counsel for the respondent. Z.G.Muruke JUDGE 30/03/2020 6