MISC NO 8913 OF 2024 KAJIA KAYENZA MZIRAY VRS TANZANIA BEIJING HUAYUAN SECURITY GUARDS SERVICE LTD

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 8913 OF 2024 CASE REFERENCE NO. 202404231000008913 KAJIA KAYENZE MZIRAY ........... ............. ......................... 1ST APPLICANT MICHAEL JOHN MOGELA...... .............. ....... ......................... 2ND APPLICANT VERSUS TANZANIA BEIJING HUAYUAN SECURITY GUARDS SERVICE LTD...RESPONDENT RULING Date of last Order: 02/ 07/2024 Date of Ruling: 30/ 07/2024 MLYAMBINA, J. Before the Court is an application made under the Provisions of Rule 56 o f The Labour Court Rules [GN. No. 106 o f2007] (herein GN. No. 106/2007). The Applicant moved the Court for granting orders for extension of time within which the Applicants may file an application for Revision of both the Proceedings and Award thereof in the original Labour Dispute No CMA/DSM/KIN/394/2022/209/2022 whose Award was delivered out of time before the Commission on the 6th July, 2023. The matter was argued by way of written submissions. The Applicants were represented by Mr. Michael Deogratius Mgombozi, Personal Representative from TUPSE. On the other hand, Mr. Saulo Kusakala, learned counsel appeared for the Respondent. Arguing in support of the application, Mr. Mgombozi submitted that the delay in this application is technical one. That, after being aggrieved with the decision of the Commission for Mediation and Arbitration (herein CMA), the Applicants timely filed Revision No. 177 o f 2023, which was however struck out with leave to re - file. After Revision No. 177/2023 was struck out with leave to refile, immediately within time they filed Revision No. 235o f2023. Mr. Mgombozi went on to submit that Revision No. 235 o f2023 was struck out for the Applicants' failure to file a notice to seek Revision (CMA 10). Thereafter, the Applicants filed another application for revision which was mistakenly registered as Tax Appeal No. 000003222 o f 2024. The later application was also struck out without leave on 4th April 2024. Then, the Applicants filed the present application. In support of his argument, Mr. Mgombozi referred to numerous Court decisions where the Court granted extension of time in circumstances of this nature. The cited cases include the Court of Appeal of Tanzania reported case of Fortunatus Masha v. William Shija & Another [1997] TLR page 154 Civil Application No.6 of 1997. It was also submitted by Mr. Mgombozi that the CMA's Award has errors apparent on the face of record amounting to serious illegalities to the effect that the Arbitrator's Award was delivered without considering the Applicants evidence and hence warranting intervention of this Court by way of its revisionary powers. In reliance to the High Court of Tanzania (Labour Division) in the case of Barclays Bank (T) Limited v. Kombo Ally Singano, Misc. Labour Application. No. 9 of 2013, as Reported as Case No. 165 of Labour Court Case Digest of 2013 at page 292 to 295, he urged the Court to consider the illegalities and grant the prayer sought. He also cited the Court of Appeal of Tanzania case of The Principal Secretary, Ministry of Defence and National Service v. Valambhia [1992] TRL at page 185 where it was held: Where, as here, the point of law at issue is illegality or otherwise of the decision being challenged, that is sufficient importance to constitute "a sufficient reason" within the meaning of Rule 8 of the Rules for extending time". 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 the point and, if the alleged illegality be established, to take appropriate measures to put the matter and the record right. In response, counsel Kusakala strongly disputed the application on the ground that the Applicants failed to account for the delay. He cited numerous Court decisions to be considered in exercising the discretion to grant extension of time including the daily cited case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women Christian Association, Civil Application No. 2 2010, Court of Appeal. As regards to what has been submitted by Mr. Mgombozi in reference to Tax Appeal NO.00003222 o f2024 counsel Kusakaia submitted that the same was filed while there was Revision No.177/2023 and Revision No.235 o f2024 which they were all struck out for failure to cite properly enabling provisions. He argued that there was negligence on the part of the Applicant and failed to show a nod muse for this Court to extend time for them to file Revision. He cemented that it was the duty of the Applicant to file the case well in accordance with rules and procedure provided under GN. No. 106/2007. In the upshot, Counsel Kusakaia urged the Court to dismiss the application for lack of merit. After fully consideration of the rival submissions of the parties, I find there is one issue; whether the Applicants advanced sufficient reasons for the grant of the application at hand. As rightly submitted by counsel Kusakaia, grant or refusal of extension of time is entirely the discretion of the Court as it was held in the case of Yusuf Sawe & Hawa Dada v. Hadija Yusufu [2002] Court of Appeal of Tanzania, where the Court set out factors to be taken into account such as; whether or not the application has been brought promptly, the absence of any or valid explanation for the delay and lack of diligence on the part of the Applicant. Again, the case of Lyamuya Construction Company Ltd (supra), also sets out factors to be considered in granting extension of time. In the instant application, the main reason for the delay is due to technical delay as alleged by Mr. Mgombozi. The records are loud that the impugned Award was delivered on 06/07/2023. After the delivery of the Award the Applicants filed Revision Application No. 177 o f 2023 which was withdrawn on 11/09/2023 with leave to refile. Thereafter, the Applicants filed Revision No 235 o f 2023 which was struck out on 05/02/2024 for the Applicants' failure to file CMA F10. After filing the perquisite form (CMA F10) at the CMA, the Applicants came back to this Court and filed an application for revision which was mistakenly cited and registered as Tax Appeal No. 3222 o f2024. In the later application a preliminary objection was raised to the effect that the application was time barred. The Applicant's representative conceded to the objection in question on such basis, the Court struck out the application for being time barred. In the event, basing on the sequence of the events narrated above, it is my view that, the ground of technical delay cannot stand in the application at hand where the Applicants knew that their application is out of time and proceeded to file an application for revision. Then, through this application they are coming from the back door to rectify the mistake made in filing a time barred application. What the Applicants have resorted to, in my view is not a proper course in judicial processes. The lately time barred application cannot in any way exempt the Applicants from accounting for each day of the delay. Since they have not accounted for each day of the delay, then this application lacks merit. I have also considered the point that there is illegality in the impugned decision. As stated in the case of Lyamuya Construction Company Ltd (supra), the alleged illegality has to be apparent on the face of record. The Applicants herein states that the Arbitrator did not consider their evidence however, they have not clearly stated which point or evidence was disregarded by the Arbitrator. Thus, the alleged illegality was not clearly stated and the Court cannot act upon such flimsy statement. In the end result, it is my view that the Applicants failed to adduce sufficient cause for the grant of extension of time prayed. Thus, the application is hereby dismissed for lack of merit. It is so ordered. Y.J. MLYAMBINA JUDGE 30/07/2024 Ruling delivered and dated 30th July, 2024 in the presence of the Applicants and Michael Mgombozi, Personal Representative from TUPSE for the Applicant and in the absence of the Respondent. Right of appeal explained. Y.J. MLYAMBINA JUDGE 30/07/2024