kanisa la moravian tanzania kanda ya magharibi vs constantine mwandu 2022 tzhc 15230 12 december 2022

IN THE HIGH COURT OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA MISC. LABOUR APPLICATION NO. 5 OF 2021 (Arising from application for review No. 03/2020 High Court of Tanzania at Tabora (Labour Division) Originating from Tabora Commission for Mediation and Arbitration Dispute No. CMA/TBA/DISP/46/2011 KANISA LA MORAVIAN TANZANIA KANDA YA MAGHARIBI............................................ APPLICANT VERSUS CONSTANTINE MWANDU..................................... RESPONDENT RULING Date of Last Order: 12/12/2022 Date of Delivery: 12/12/2022 AMOUR S. KHAMIS, J: Kanisa la Moravian Tanzania Kanda ya Magharibi filed the present application for extension of time to file an application for review of the ruling of this Court dated 7/09/2021. The application was made by Notice of Application under Rule 56(1) (3), Rule 24 (1) (2) (a), (b), ( c), (d), (e ), (f), 3 (a), (b), (c ) (d) of the Labour Court Rules, G.N. No. 106 of2007. i An affidavit by Revocatus Mugaya Kaitila Mtaki, advocate, supported the application. Mr. Revocatus Mugaya Kaitila Mtaki deposed that the impugned ruling was delivered on 7/09/2021 in absence of the applicant who became aware of its delivery oh 4/10/2021 through a Court Clerk, Ms. Lucy Haule. He averred that the reason for review was purely illegality on the fact of the records; that Application for Review No. 3/2020 was in respect of the order of the Deputy Registrar made in Execution Case No. 10/2014 which ought to have been determined by the same Deputy Registrar. He averred further that, inadvertently, the Application for Review was placed before the Judge of this Court who proceeded to determine it on merits. The deponent stated that the learned judge, and both parties before him, mistakenly treated the matter as an appeal / revision instead of review. Ms. Stella Thomas Nyakyi, learned advocate of this Court, swore a Counter Affidavit in opposition to the application for and behalf of the respondent, Constantine Mwandu. Ms. Nyakyi deposed that the applicant failed to account for each day of delay to entitle him an order for an extension of time. 2 Before me, the applicant was represented by Mr. Mugaya Kaitila Mtaki assisted by Mr. Akram William Magoti, learned advocates. Ms. Stella Nyakyi, learned advocate, appeared for the respondent, Constantine Mwandu. I have carefully considered the parties’ rival oral submissions made before me today. The issue is whether the application disclosed a sufficient cause for extension of time. Rule 56 (1) of the LABOUR COURT RULES, G.N NO, 106 OF 2017 provides that “56(1) The Court may extend or abridge any period prescribed by these Rules on application and good cause shown unless the Court is precluded from doing so by any written law." There is no dispute that under item 3 of part III of the Schedule to the LAW OF LIMITATION ACT, CAP 89, R.E 2019, application for review of a decree, judgment or order should be filed within thirty (30) days. The impugned decision in this matter was delivered by this Court on 7/9/2021 while the present application was lodged on 20/10/2021. This was well beyond the thirty (30) days statutory period within which to file an application for review. 3 In PRINCIPAL SECRETARY MINISTRY OF DEFENCE AND NATIONAL SERVICE V VALAMBHIA, CIVIL REFERENCE NO. 9 OF 1991 (unreported), the Court of Appeal held that: “In some cases a point of law may be of sufficient importance to warrant extension of time, while in others it may not............ We think that where, as here, the point of law issue is the illegality or otherwise of the decision being challenged that is sufficient importance to constitute “Sufficient reason” within the meaning of Rule 8 of the Rules for extending time. To hold otherwise would amount to permitting a decision, which in law night not exist, to stand. 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 purposes, to ascertain the point and if the alleged illegality be established to take appropriate measures to put the matter and the record right”. In the present case, parties are not in dispute that Application for Review No. 3/2020 originated from Labour Execution Application No. 1 of 2014 which was determined by the Deputy Registrar of this Court. Both counsel conceded that they appeared in Application for Review No. 3/2020 which was determined by this Court on 7/09/2021 and treated the matter as appeal /revision from Labour Execution Application No. 1 of 2014. 4 The said application was disposed of by way of written submissions and the rival counsel styled their submissions as if the matter was purely a revision to the Judge of the High Court. It was therefore naturally that the presiding learned judge delivered his ruling on the matter reflecting it as if it was a revision by the High Court. In terms of Order XLII of the CIVIL PROCEDURE CODE, CAP 33, R.E 2019, I am satisfied that subsequent to delivery of the decision sought to be revised, the applicant discovered that the application was determined on account of some mistake of facts which is apparent on the face of the records, that is: Order XLII Rule 2 of the CIVIL PROCEDURE CODE was not observed. Bearing in mind that the error on the face of records in Application for Review No. 03/2020 is likely to have caused injustice and for the speedy determination of cases, it seems to me that this is not only a fit case for extension of time but also a fertile ground for this Court to apply its inherent powers under Section 95 of the CIVIL PROCEDURE CODE, CAP 33, R.E 2019, and protect the ends of justice. For the aforstated reasons, this Court vacates its ruling and orders made on 7/09/2021 in Application for Review No. 3/2020. Consequently, and in view of the confusion which is apparent in the proceedings of that matter, the same is hereby struck out and parties are liberty to file it afresh. 5 Since this is a labour matter,,,I o order for costs. It is so ordered. AM S. KHAMIS JUDGE 12/12/2022 ORDER Ruling d ed in Chambers in presence of Ms. Stellah Nyakyi and Magoti, learned advocate for the respondent and applicant respectively. 6