ledger hotel resort vs monica mohamed 2020 tzhcld 41 8 may 2020

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 508 OF 2019

BETWEEN LEDGER HOTEL & RESORT....................................APPLICANT

VERSUS MONICA MOHAMED......................................... RESPONDENT

RULING Date o f Last Order: 30/03/2020 Date o f Ruling: 08/05/2020 Aboud, J. This is an application for extension of time to file counter affidavit for Application for Revision No. 194 of 2019. The application was filed under the provision of Rule 24 (1), 24 (2) (a), (b), (c), (d), (e), (f), 24 (3) (a), (b), (c), (d) and Rule 56 (1) of the Labour Court Rules GN. 106 of 2007 (herein Labour Court Rules). Brief background of this application is that, the applicant was served with the copy of the impugned application on 12/04/2019 and was required to file its counter affidavit within fifteen days from the date of service. The same was not filed by the reasons adduced by the applicant in this application. Therefore on 26/08/2019 the applicant filed the present application asking for this court to extend the time to file counter Affidavit out of time in revision No. 194 of 2019. At the hearing, the applicant was represented by Mr. Beatus Kiwale from Kakamba & Partners Advocates whereas the respondent enjoyed the services of Elisaria 1 Mosha from EJ. Mosha & Co. advocates. The matter was ordered to proceeded by way of written submission, where by the applicant filed his submission while the respondent did not. Hence the court proceeded ex parte under the provision of Rule 37 (1) of the Labour Court Rules. In supporting the application, Mr. Beatus Kiwale prayed to adopt the affidavit

of Mr. Mathew Simon Kakamba to form part of his submission. He submitted that, the applicant failed to file his counter affidavit and the accompanying documents on time as his counsel Mr. Kakamba was sick and diagnosed with RGB and UTI illness. On 25/04/2019 he was admitted at TMJ Hospital Ltd and later discharged from the hospital on 02/05/2019. The Counsel submitted that, Rule 56 (1) of the Labour Court Rules states that this Honourable court shall grant prayer for 2 extension of time upon good cause referring a number of unreported cases which were not attached in his submission. He further submitted that, Mr. Mathew Kakamba is a senior Counsel with sixty five (65) years of age and more than twenty (20) years working experience. He has been diagnosed for a long time with hyper-tension (high blood pressure), diabetes and back pains. These health conditions have hindered the said advocate from performing his daily duties in a satisfactory state. He stated that the delay in this application was a result of Mr. Kakamba being hospitalized at TMJ Hospital on 25/04/2019. The Counsel added that, up to this moment Mr. Kakamba's health has not been stable and he is currently attending medical appointments at the Rabyninsia Memorial Hospital twice a week for the aforementioned diagnosed diseases. Mr. Kiwale stated that, Revision Application No. 194 of 2019 stems out of respondent's

baseless allegations of unfair termination while in reality the contract of respondent's employment had expired. Therefore if the applicant herein is not afforded an avenue to respond to the respondent's affidavit, there will be high chance of misleading the court to arrive to unjust decision. The Counsel urged the court to grant the application due to such illegality raised. He referred the case of Mobrama Gold Corporation Limited Vs. Minister for Energy and Minerals and the Attorney General and East African Gold Mines Ltd. as Intervenour [1998] TLR 425. He further submitted that in any circumstance that the prayer for extension of time will not be granted, such denial will be detrimental to the applicant's defense in the Revision No. 194 of 2019. He therefore prayed for the application to be granted. After considering the applicant's submission and court records then the issue for determination is, whether the applicant adduced sufficient reasons for the delay in filing counter affidavit on time. Under the provision of Rule 56 (1) of the Labour Court Rules this court is vested with powers to extend time upon good cause shown. The relevant section is to the effect that:- "The Court may extend or abridge any period prescribed by these Rules on application and on good cause shown, unless the court is precluded from doing so by any written law". What amounts to sufficient or good

cause have been discussed in a number of cases including the Court of Appeal in the case of 4 John Mosses and Three Others Vs. The Republic, Criminal Appeal No. 145 of 2006 when quoting the position of that court in the case of Elias Msonde vs. The Republic, Criminal Appeal No. 93 of 2005 where Mandia, J A held that:- "We need not belabor, the fact that it is now settled law that in application for extension of time to do an act required by law, all that is expected by the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part". Also in the case of Tanzania Fish Processors Ltd. Vs. Christopher Luhangula, Civil Appeal No. 161/1994, CAT at Mwanza it was held that:- "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 Blue Line Enterprises Ltd. Vs. East African Development Bank, Misc. Application No. 135 of 1995, the Court held that:- "...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." The applicant ought to have not shown unnecessary delay, as it was held in the case of Dr. Ally Shabhay Vs. Tanga Bohora Jamat [1997] TLR 305. In the instant matter, the applicant's counsel alleged that he was hospitalized hence he failed to file the counter affidavit on time. Thus, the reason for the delay raised by the applicant was that his representative was sick and he attached the document to prove that he was admitted at TMJ hospital on 25/05/2019 and later discharged on 02/05/2019. However, is the court considered view that the learned counsel for the applicant ought to have proved to this court the reasons for delay from the date he was discharged 02/05/2019 to the date he filed the present application in court on 26/08/2019 as rightly contested by the respondent in the counter affidavit. It is crystal clear that the learned Counsel for the applicant, Mr. Kakamba in handling this matter acted negligently, specifically for delaying to filling the counter affidavit on time. He admitted to have been served with a copy of a notice of application on 12/04/2019 and he was supposed to file counter affidavit by 26/04/2019. Therefore, the learned counsel had 13 days to file the counter affidavit before he was

admitted to the hospital on 25/04/2019, unfortunately he failed do so. Furthermore, even when he was discharged from the hospital on 02/05/2019 he delayed for almost three months to file the application at hand which was filled on 26/08/2019. Therefore, had it been that applicant Counsel acted diligently he would have filed the counter affidavit prior to his admission to hospital or he would have filed the present application immediately after being discharged. I considered view that applicant's counsel had ample time to fulfill his legal obligation on behalf of his client. It is a 7 trite principle of law that a part should account for each day of delay to do what is supposed in law and, such position is reflected in the case of Bushiri Hassan Vs. Latifa Lukio Mashayo, Civil Application No. 3 of 2007 (unreported), the Court of Appeal held that; I quote:- "Delay of even a single day, has to be accounted for otherwise there would be no point of having rules prescribing periods within which certain steps have to be taken." As I discussed above, in this application the Counsel delayed for almost three months and no good reasons were advanced for such delay. The position of the Court is very clear as was in the case of Tanzania Fish Processors (supra) that, limitation of time is there to ensure a party to the case does not come to court as and when he chooses like what the

applicant counsel did in the present application. It is well established that the limitation is there to facilitate speedy administration of justice. Therefore, the court will not allow a party to take his time to file response in any matter he wishes to do so, like in this application. Strictly to entertain such delaying conduct, matters in court will not come to an end and will affect negatively or infringe the other party's enjoyment of his right. The court notes that justice delayed is justice denied, so parties before it need to comply with the required laws and court orders to avoid any unnecessary and unjustified delays to do what they are supposed to. In my view counsel's submission that, Mr. Kakamba is 65 years of age and 20 years working experience are not sufficient reasons to grant the present application. A party's right to access justice on time cannot be deprived to due to the fact that the other party's representative has more working experience than the other. This court expects Mr. Kakamba as a senior and more experienced counsel to be an icon and a model in handling his clients matters with due diligence and in a thoughtful manner because he is well conversant with laws including the law of limitation. To justify the reasons for the delay and why the application need to be considered the learned counsel cited the case of Mobrama Gold Corporation Limited

(supra) which stated that: "It is generally inappropriate to deny a party an extension of time where such denial will stifle his case, as the respondent delay does not constitute a cause of procedural abuse or contemptuous default and because the applicant will not suffer any prejudice an extension should be granted." The word "stifle" used in the case above, according Mr. Kiwale, learned Counsel is defined in the New International Webstess Pocket Dictionary, Trident Press International, 2002 p. 412, that it means to kill by stopping respiration, to hold back or suppress. However, in consideration of Mr. Kiwale's submission I find myself moved to look on what has been decided by the Court of Appeal in the case of John Dongo & 3 Others Vs. Lepasi Mbokoso, Civ. Appl. No. 14/01 of 2018 where Levira, J. well elaborated that:- "The definition was provided with the aim of justifying the application. I wish to state that, I do not think that the above quoted decision and the defined word (stifled in particular intended to discharge the applicants from the obligation of furnishing good cause for the Court to extend time. Nevertheless, the issue before me is not on the outcome of denial of extension of time but whether the applicants have been able to advance good cause to justify extension of time. In my considered opinion, whether or not the case is or will be stifled depends on a

number of things including actions of the applicant (s). It has to be clear, the Court is there to ensure that justice is done and thus, it cannot and is not expected to stifle cases". (Emphasis is mine). Thus, as I have discussed above that the Learned Counsel, Mr. Kakamba who represented the applicant acted without due diligence in handling the applicant's case. His delay to take action, to wit to file counter affidavit within the legally required time is unjustified. Being bound by the decision of the Court of Appeal, I have to follow the position in the case of John Dongo (supra) as discussed above. In the matter at hand I have no hesitation to say plainly that the applicant failed to advance good cause or sufficient reason (s) to justify the extension of time as prayed. Hence this court finds no justifiable reasons to grant the relief sought. In the result the present application lacks merit and is dismissed accordingly. 08/05/2020 12