MISC NO 17619 OF 2024 KULWA MKWABI VRS TANZANIA PORTS AUTHORITY 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR-ES-SALAAM MISC. LABOUR APPLICATION NO. 17619 OF 2024 CASE REFERENCE NO. 202407221000017619 BETWEEN KULWA MKABI & 399 O TH ERS................................................. APPLICANT VERSUS TANZANIA PORTS AUTHORITY (TPA )............................... RESPONDENT RULING Date of last Order: 20/ 11/2024 Date of Ruling: 13/ 12/2024 MLYAMBINA, J. The application before the Court is for extension of time to file review against the decision of Hon. Deputy Registrar dated 24th April, 2024 in Execution Application No. 230 o f2023. The application has been filed under Rule 24 (1) (2) (a) (b) (c) (e) and (f) and Rule 56 (1) 55 (2) o f the Labour Court Rules, GN. No. 106 o f2007 and Section 94 o f the Employment and Labour Relations Act [Cap 366 Revised Edition 2019] (herein ELRA). The application proceeded orally. The Applicants were represented by Mr. Abraham Hamza Senguji, learned Counsel, on the other side, Ms. Lucy Kimario, learned State Attorney appeared for the Respondent. Arguing for the application, Counsel Hamza adopted the affidavit of Jobinus Ndaro which supports this application. He stated that; after the Deputy Registrar's decision was delivered on 3rd May, 2024 they timely filed an application for Review No. 9992 o f 2024 which was before Hon. Mganga J. That the matter was withdrawn on technical grounds on 4th July, 2024. Counsel Hamza submitted that they were supposed to re-instate their application within 15 days under Rule 27 o f GN No. 106 o f2007. They filed this application on 22nd July, 2027, being late for about seven days because they had internet challenges. The Counsel continued to submit that the other reason for the delay is illegality on the contested decision. The calculations were erroneously made especially the severance allowance. That, the Hon. Deputy Registrar denied granting vacation, accumulation of salaries and there was wrong interpretation of the Industrial Court decision. He argued that the Court of Appeal has ruled several times that illegality is a good ground for extension. He further noted to the Court that the Respondents never filed counter affidavit. They just filed a notice of opposition which does not state the reasons of denying their application. In normal cases, failure to file Counter affidavit will entitle them to be heard but they have no evidence to deny the application. Winding up his submission, Counsel Abraham Hamza Senguji strongly submitted that the decision of this case was issued in 2003 and there is no any appeal against such decision. It is a decision which is still intact. It has to be executed. For those reasons, they prayed be granted time to file review and be given extension of time so that the payments can be effected as per the Government Proceedings Act as stated in the case of Karat Ernest and Others v. Attorney General, Civil Revision No. 10 of 2010, Court of Appeal of Tanzania at Dar es Salaam. In reply, Ms. Kimario strongly disputed the accusation that they never filed a counter affidavit. She stated that the same was filed on 07/08/2024. As to the merit of the application, they objected the same on the following reasons: First, that the delay to file review was caused by negligence of the Advocate as required by tne Labour Court Rules. She conceded to the fact that, after the decision of Hon. Tarimo, they timely filed a review application which was struck out for not being accompanied with the notice of review and memorandum of review. She was of the position that the striking out resulted from the Applicant's Counsel negligence which cannot be a ground for grant of extension. In support of the submission, she referred the Court to the case of Jubilee Insurance Company (T) Limited v. Mohamed Sameer Khan, Civil Application No. 439/01 of 2020, Court of Appeal of Tanzania pp. 14 and 15. The second reason for challenging this application is for failure to account for the delay after review application No. 9992 of 2024 was struck out. Counsel Kimario submitted that the application was struck out on 4th July, 2024 but this application was filed on 22nd July, 2024 which was 18 days after the application was struck out. She was of the view that the application was supposed to be filed immediately but the Applicants failed to justify the delay of those 18 days. She added that, the reasons that there was a technical internet challenge is not reflected in the affidavit, it is a new ground. In the Applicant's affidavit paragraph 3.16, the Applicants stated that they were searching for documentation. They never stated which documents. It was the view of Ms. Kimario that failure to account for 18 days for the delay is negligence and indeed the Applicants have not acted diligently. She cemented that there is no sufficient reasons being advanced by the Applicants for the delay. On the illegality point, it was argued that the principle of illegality must be clearly apparent on the face of record. To support her argument, she referred the Court to the case of Moto Matiko Mabanga v. Ophir Energy PLC, Civil Application No. 463/01 of 2017 Court of Appeal of Tanzania, p. 14. It was her view that there is no illegality on the face of record of the decision of Hon. Deputy Registrar Tarimo which will not need deliberation on whether there is misdirection on the point of law. Page 6 of the impugned decision shows the Applicants were awarded severance allowance which is 5% of their salaries for five years. Such Award was for 195 Applicants and not 120 Applicants as alleged. In total they were awarded 422,955,000/=. The Counsel was of the view that on the face of this Award there is no illegality on the impugned decision because as per the law severance allowance is 5% of the salaries. On accumulated salaries, Counsel Kimario submitted that it was not an Award by the Industrial Court. For that reason, the Deputy Registrar was correct in not issuing such Award. The Applicants employment was between 1993-1998. So, the Employer could not pay accumulated salaries for the time which the Applicants were not working. She therefore urged the Court to dismiss the application for the Applicants' failure to adduce sufficient reason for the delay. In rejoinder, Counsel Abraham Hamza Senguji clarified that the Applicants are late for three days and not 18 days as alleged by the Respondent. The delay starts from the date the application was struck out by Hon. Judge Mganga of which they have already been punished. He also added that an Advocate is an Officer of the Court as per Section 66 o f the Advocates Act [Cap 341 Revised Edition 2019] (herein The Advocates Act). His negligence cannot cause the litigant being punished. On the issue of severance, he submitted that if calculated as per ELRA (supra), it is different from that issued under Security o f Employment Act. Since this case was as per Security and Employment Act, the Hon. Deputy Registrar did not calculate as per 26 months as required. He insisted that it was a wrong interpretation of the Industrial Court decision. The Industrial Court ordered the Applicants be reinstated but they were terminated without any notice or a letter of termination. The Court ordered that the Applicants were legal employees, and they were entitled to be paid their salaries. He firmly submitted that when there is illegality there is good cause for extension. The basis of Severance pay is Section 33 o f the Security o f Employment Act The lowest salary by then was 723,023. He therefore urged the Court to grant the application. In the light of the afore parties submissions and records, the issue to be determined in this application is; whether the Applicants have adduced sufficient reason for the delay. The application for review before the Court is governed Rule 27(1) o f GN. No. 106 o f2007which provides as follows: Any review shall be instituted by filling a written notice of review to the Registrar within fifteen days from the date the decision to be reviewed was delivered. As plainly provided in Rule 27 (1) (supra), application for review has to be filed within fifteen days from the date the reviewed decision was delivered. In the application at hand, the reviewed decision was delivered on 24/04/2024. Thereafter, on 03/05/2024 the Applicants filed an application for review which was registered as Review No. 9992 o f 2024. The review application was filed nine days after the Deputy Registrar's decision was delivered. Thereafter, the review application was struck out 04/07/2024 for being incompetent as the Applicants did not file memorandum of review. After striking out, on 22/07/2024 the Applicants filed the present application. As rightly argued by Counsel Kimario, the Applicants delayed for 18 days. The reason adduced by the Applicants for the delay of 18 days is that they were searching for documentation for filing this application. The question as to whether the reason adduced is good cause or not is left within the discretion of the Court to decide. In the case of Bertha v. Alex Maganga, Civil Reference No. 7 of 2016 the Court of Appeal stated as follows in regard to what amounts to good cause for the delay: Whilst it may not be possible to lay down an invariable definition of good cause so as to guide the exercise of the Court discretion, the Court is enjoined to consider, inter alia reasons for the delay, length of the delay, whether the Applicant was diligent and degree of prejudice to the Respondent if time is extended. In the application at hand, I am of the considered view that the delay of 18 days is not inordinate. Taking into account that the Applicant are 400 in number, getting all of them to consent and file an application for extension of time, practically it is not easy. Moreover, the Applicants have shown interest in pursuing review application by timely filing Review Application No. 9992 o f2024 timely after the impugned decision was delivered. It is my view that all those efforts must be taken into account in justifying the grant or refusal of an application for extension of time. Again, there is no prejudice to the other party if this application is granted. In the result, I find the present application has merit. The Applicants are hereby given 21 days to file review application from todate. It is so ordered. JUDGE 13/12/2024 Ruling delivered and dated 13th December, 2024 in the presence of Counsel Abraham Hamza Senguji for the Applicants and Ramadhani Ngogo, Principal Officer of the Respondent. JUDGE 13/12/2024