life care health services vs christina helela another 2022 tzhcld 40 25 february 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 455 OF 2021 BETWEEN LIFE CARE HEALTH SERVICES. ^APPLICANT CHRISTINA HELELA RESPONDENT CHARLES KAJAKA SENGO T/A CDJ CLASSICAL GROUP LTD 2nd RESPONDENT RULING Date of Last Order:15/02/2022 Applj^^^^§Ry employer of the 1st respondent. It happened that applicant-terminated employment of the 1st respondent. The 1st respondent^being aggrieved by termination of her employment filed Labour dispute before the Commission for Mediation and Arbitration (CMA) on ground that her contract of employment was unfairly terminated by the applicant. After non-appearance of the applicant, 1st respondent prayed to proceed exparte. On 31st July 2018, Hon. Amos, A, 1 Mediator, issued an exparte award in favour of the 1st respondent. It is alleged by the applicant that, the said exparte award was served to her on 31st July 2019. Being served with the said exparte award, applicant filed application No. CMA/DSM/MISC/23/2020 at CMA seeking to set aside the said exparte award. On 15th December 2020, Hon. Mourice Egbert Sekabila, arbitrator, delivered his ruling /dismissing? that application1. In an attempt to revise the said exparte. award, on 24th February 2021, applicant filed revision applicatioruJJJo. 73 of 2021. Unluckily to the applicant, the said revision application No. 73 of 2021 was dismissed by this court for ^eing1t1rfte\barred. After the dismissal of the said revision application \JNo. 73 of 2021, applicant filed this application seeking extension of time within which to file revision applicatio to challenge. thebCMA ruling dated 15th December 2020 that dismissed her application to set aside exparte award. The 1st respondent filed a notice^of opposition, a counter affidavit and a notice of preliminary-objection on point of law that the applicant is abusing the court process. This ruling is in respect of the said preliminary objection raised by the 1st respondent. Before I kick off, I should point albert briefly that the 2nd respondent, who is a court broker appointed by the court to execute the 2 aforementioned exparte award, opted not to file a counter affidavit and did not enter appearance in court. When the application was called for hearing, Mr. Hemed Omary, the personal representative of the 1st respondent appeared and argued the preliminary objection for and on behalf of the 1st respondent. Ir^the course of arguing the aforementioned preliminary objection, Mr^Omary, added another new ground to make it two namely, 1 The application is incompetent as thetnotice^f application was signed by the advocate and not the appiicant^^j> 2 Applicant is abusing court processes the she intends to file application r -- C .V Z^A'^ W - ^A AA’ < for revision of a dispute whicirwas already dismissed by this court for being time barred. In arguing the lst<JjmbssOf the preliminary objections, Mr. Omary, the personal representatiye of the 1st respondent submitted that, the notice of applicationzwas signed by a person who is not a party to the proceedings\contrary to Rule 24(2) of the Labour Court Rules, GN. No. lod'of 2077'Mr. Omary submitted that the said notice was signed by the x/ applicants advocate, who at any rate is not a party to the proceedings. In regard to the 2nd ground, Mr. Omariy argued that, applicant filed Revision application No. 73 of 2021 which was dismissed by this court for being time barred but the applicant is seeking extension of 3 time so th she can file a new revision, which the court had already dismissed for being time barred. He argued further that, after dismissal of Revisiop application No. 73 of 2021 in which applicant was challenging the ruling that dismissed her application to set aside an exparte award for being time barred, the court is functus officio as the issue of time limitation has already been determined Responding to the applicant's submissjons^on Preliminary objection, Mr. Joseph Mulamula, counsel for the^appiicant, conceded to the 1st lim of preliminary objection thatxtl^notice of application was signed im as an advocate a(^^iat he is not party to the J) proceedings. He conceded that parties to the proceedings are Life Care Heaith Service, as an applicant on one hand, and Christina Heieia, Hie O» Group £^Jff&2"d-respondent on the other hand. x On tner2nd ground of preliminary objection, Mr. Mulamula, counsel for the^applicant contended that, it is not true that once a matter has been dismissed for being time barred, a person is prevented to file an application to file the same matter out of time. To strengthen his submission, counsel cited the case of Tanzania Fertilizer Co. Ltd v. National Insurance corporation. Commercial case No. 71/2004. Counsel for the applicant conceded further that, Revision application No. 73 of 2021 was dismissed by this court for being time barred. He conceded also that, this application is seeking extension of time to file revision application emanating from a labour dispute No. DSM/Misc/23/2020 and that Revision application No. 73 of^2020 also was chall ging the same labour dispute. Counsel conceded^that<there must be an end to every litigation. \> Having heard submissions from both parties, ibis undisputed that the notice of application was signed by thesperson who is not a party to the application. It is undisputed^further^that, the notice of application (I —z was signe by Joseph Mulaimula^t^e^applicant's advocate. As correctly that: - x\ "The/notice of application shall substantially comply with form No. 4 in the schedule to these Rules, signed by the party bringing the app/Zca77o/7...,z [Emphasis added] It is my considered view that, "the party bringing the application" is the one who, is directly, affected by the outcome of 5 . This is the position of this court in the case of Simon John v. Brae Tanzania Finance Ltd, Misc. Application. No. 60 of 2018 and the case of Rose Ongara &2 Others v, National health Insurance Fund, Revision Application. No. 237 of 2019. In Ongara's case^(supra), this court A. Aboud, J) emphasized that: - "Therefore, any party representing the employer or employeeswill only remain th the status of representative of a pa^ty^a^provided under section 56 of the Labour Institutions Act, but no$to automatically acquire the status of signing documents and bring/ng^the^applicat/on before the <\ Court. It is very dear from Rule 24 (2) that if<thd drafters of such provision had in grind that parties should comply^witgform No. 4 in the schedule to the rules, they would have stopped^there without adding the words "signed by the party bringimj^the application". So, I am strongly /Jf* convinced that the drafters^wanted a party or applicant to sigh the notice and no one else." I associate/myselfcto that position of the law, which, in my view, is a^c^o^&^nterpretation of Rule 24(2) of GN. No. 106 of 2007 (supra)./^r\the foregoing, I therefore find that, the 1st limb of prelirriiQajy objection has merit and hold that the application is incompetent for being signed by the Applicant's advocate and not the applicant herself. I sustain the 1st preliminary objection. In the 2nd ground of preliminary objection, counsel for the applicant argued that, it is not true that once a matter is dismissed for being time 6 barred, a person is prevented to file a new application seeking extension of time for the same matter to be heard on merit. On the other hand. the personal representative of the 1st respondent, submitted that once the application is dismissed, the court cannot entertain an application to extend time to revive the dismissed matter as the court wilhbe functus officio. // \\ o It is apparent that, applicant has filed this applicatioriiso that she can file an application for revision challenging the'CMA ruling emanating from CMA dispute No. DSM/Misc/23/20^^^sis clear that revision application No 73 of 2021 was-dism^sed for being time barred as "13. Tnat Rev. No. 73/2021^has been in court for the whole time since its I filling until whenfit came for hearing before Hon. Biswaio, J, who dismissed . f \X JJL it for being/time. barred It iszclear>that, in the said revision application No 73 of 2021 that was\jdismissed for being time barred, applicant was challenging the same rul ng she intend to challenge in the application at hand if extension of time is' granted. I am of the strong view that, since the issue of time limitation has been adjudged by this court by dismissing Revision Application No. 73 of 2021 for being time barred, applicant is 7 barred from filling an application for extension of time to file revision application on similar issue. I am of that view because, if this application for extension of time will be granted, then, applicant will be granted an opportunity to challenge an already dismissed application for being time barred. It s a cardinal principle that limitation of time goes to the jurisdiction of the court. As the court dismissed revisiorrappIicatioTi No. 73 of 20 it ceased to have jurisdiction to entert^Kthe matter. Applicant, rickery through this application, is prl^wg^the court to cloth The only remedy applicant had, was to challenge the said dismissal (( n order before the Court of AppealqfLshe felt that it was erroneously given and not t e this applica^n. This position was given by the Court of Appeal in the case<of?/7as/Mm Madongo & 2 Others v. Minister for "Tha^after the application before Keiegeya, J was dismissed, as it should have b , it was not open to the appellants to go back to the High Court and file the Application subject of this appeal...., the only remedy available to the appellant after the dismissal of the applicant was to appeal to the court cf Appeal and that the application for extension of time ought to have been filed prior to filling the application for prerogative orders." 8 Guided by the above Court of Appeal decision, I hold that the 2nd ground of preliminary objection has merit I therefore sustain it This will be in line with the well-known principle that, always there should be an end of litigations. The Tanzania Fertilizers Company's case, (supra), cited by counsel for the applicant is no longer a good law/as the said case was overturned by the Court of Appeal in the Madongo^s/case, (supra). In t upshot, I find both grounds of preKrr^nafy objections with merit and are hereby sustained. Hayingnso found, the present application is hereby dismissed foPwant ofkmerit Dated at Dar es Salaam this-25^ February 2022 B.E.K. Mganga JUDGE 9