magnus mhepela and 49 others vs iron and steel limited 2023 tzhcld 1234 25 april 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISC. APPLICATION NO. 09 OF 2023 BETWEEN MAGNUS MHEPELA................................................................... 1st APPLICANT KAIZA KIGODI....... 2nd APPLICANT OMARI KOFFU........ 3rd APPLICANT HAMZA SETEBE...... 4th APPLICANT SAMSON MDOLO .... 5th APPLICANT MOSES JOHN......... 6th APPLICANT BENJAMIN BUTTER 7th APPLICANT OMAR MBEBULO...................................................................... 8th APPLICANT HAMIS MPINDA.......................................................................9th APPLICANT ADAM JUMA............................................................................................... 10thAPPLICANT CASTOL MATHIAS..................................................................................... 11™APPLICANT HERRY MASOUD......................................................................................... 12™APPLICANT ENOS NYAGA............................................................................................. 13™APPLICANT MAJID MOHAMED................................................................. 14™ APPLICANT ELIA MKWAWA...................................................................... 15™ APPLICANT JUMA AMIR........................................................................... 16™ APPLICANT SHUKURU SELEMANI........................................................... 17™ APPLICANT IBRAHIM JACOB................................................................... 18™ APPLICANT MUHSIN MAGWADU............................................................. 19™ APPLICANT JUMAA GEORGE.................................................................... 20™ APPLICANT RAMADHANISAID................................................................ 21st APPLICANT ISSA RAMADHANI................................................................. 22nd APPLICANT SHUKURU MOHAMED................................................................................. 23rdAPPLICANT RAMADHANI MOHAMED............................................................................ 24™APPLICANT SAID BAKAR............................................................................................... 25™APPLICANT 1 ABDALLAHI SAID........................................................................................26™APPLICANT BENEDICTOR JOHN.................................................................................... 27™APPLICANT SHABANI HAMIS........................................................................................ 28™APPLICANT ALLY MOHAMED.........................................................................................29™APPLICANT IDD RAMADHANI...................................................................................... 30™APPLICANT FABIAN YONA............................................................................................ 31stAPPLICANT MOHAMED TWAHA.................................................................................... 32ndAPPLICANT SALUM MAGONGO..................................................................................... 33rdAPPLICANT HAMIDU SEIF............................................................................................. 34™APPLICANT MUSSA ABDALLAH..................................................................................... 35™APPLICANT SALIM SELEMANI...................................................................................... 36™APPLICANT HAMIS MOHAMED..................................................................................... 37™APPLICANT SAID MUSSA MOHAMED........................................................................... 38™APPLICANT HAMIS T. SEIF........................................................................................... 39™APPLICANT ISSA ABDALLAH........................................................................................ 40™APPLICANT SALUM GOBE............................................................................................. 41stAPPLICANT AHMED KAUNDU....................................................................................... 42ndAPPLICANT HAMAD SHEHA.......................................................................................... 43Rt>APPLICANT SHABANI MASOUD.................................................................................... 44™APPLICANT BAKARI SALEHE.........................................................................................45™APPLICANT OMARY RASHID........................................................................................ 46™APPLICANT KARINE NAUSI.......................................................................................... 47™APPLICANT IMANI SEMLAMBA.................................................................................... 48™APPLICANT AWESO HAMZA.......................................................................................... 49™APPLICANT HUSSEIN MKUJAIKA................................................................................. 50™APPLICANT VERSUS IRON AND STEEL LIMITED.........................................................RESPONDENT RULING Date of last Order: 20/03/2023 Date of Ruling: 25/04/2023 MLYAMBINA, J. 2 In the instant matter the Applicants moved the Court to extend time to file notice of review out of time against the decision of the Deputy Registrar, Hon. S.B. Fimbo dated 06/12/2022 in Application for Execution No. 247 of 2019. The background of the application is that; the Applicants were employed by the Respondent in diverse dates until 13/07/2011 when they were terminated. Aggrieved by the termination, the Applicants referred the matter to the Commission for Mediation and Arbitration (herein CMA). Being dissatisfied by the Award, the Respondent preferred Revision application before this Court which was dismissed for want of merit. Thereafter, the Respondent filed notice of appeal to the Court of Appeal which was later on struck out by the Court. On the other hand, the Applicants proceeded with the execution of the Award. However, as stated above, they are aggrieved by the computation done by the Deputy Registrar in an application for Execution No. 247 of 2019 delivered on 06/12/2022. They therefore, want to approach this Court with an application for review. Faced with the limitation of time, the Applicants filed the present application. The application proceeded by way of written submissions. Before the Court, the Applicants were represented by Mr. Juma Nassoro, 3 Learned Counsel. On the adversary side, Mr. George Shayo, Learned Counsel appeared for the Respondent. Arguing in support of the application, Mr. Nassoro narrated the dispute background which has been highlighted above. As regards to the reason for the delay, he submitted that, the Applicants were not aware of the decision until 5th January, 2023. Upon reading the ruling of the computation and further scrutinizing every one's letter they discovered that there was an error in computation, hence, this application. They urged the Court be guided by the case of Mobrama Gold Corporation Ltd v. Minister for Energy and Minerals and the Attorney General and East African Gold Mines Ltd as Intervenor (1998) TLR 425 to grant the application. In response to the application Mr. Shayo submitted that the parties in the impugned decision are not the same parties in the present application. As such, they cannot apply for an extension of time to file review out of time. He submitted that the parties in the case of Martin Kumalija and 117 Others v. Iron and Steel Limited, Execution No 247 of 2019 (unreported). Mr. Shayo submitted that since the Applicants' names were not the parties thereto. They can neither be allowed to review the decision subject to the present application nor be 4 granted extension of time as prayed. Mr. Shayo submitted that similar circumstance as to the present one occurred in the case of Salim Amor Diwani v. The Vice Chancellor Nelson Mandela African Institution of Science and Technology, Civil Application No. 116/01 of 2021, Court of Appeal at Dar es salaam. Mr. Shayo therefore persuaded the Court to take the same stance and find that the application is incompetent. He further submitted that; in the cited case the Court of Appeal followed its previous decision and underscored the significance of authenticity of Court records to include citation of parties' names as they appear in the proceedings. Mr. Shayo further argued that the parties in Execution No 247 of 2019 were aware of the impugned decision as they appeared in person and were represented by Mr. Juma Nassoro for the Decree Holders and Mr. George Shayo for the Judgement debtor. Thus, in absence of the authorization from the Decree Holders, the Applicants herein have no locus standi to file the present application. On the other hand, it was submitted by Mr. Shayo that, the computation in the impugned decision was on the basis and in consideration of the Decree Holders' monthly salaries. He added that; the Decree Holders Counsel was the one who guided the Court to 5 compute by relying to the Decree Holders' salaries as shown in the CMA Fl. Therefore Mr. Shayo was surprised as to how the same Counsel who guided the Court in the alleged computation is unaware of the decision and wants to fault the said computation. As to the reason of the delay, Mr. Shayo submitted that; looking at the circumstances of the present matter, the application is inordinate as it lacks good cause to convince this Court to grant extension of time. He stated that no sufficient reasons have been disclosed. Mr. Shayo added that the Applicants have failed to state how many days of delay and that they were supposed to account for each day of their delay. In support of his submission, Mr. Shayo referred the Court to numerous decisions including the cases of; Israel Malegesi and Francis Mainqu v. Tanganyika Bus Services, Civil Application no. 172/08 of 2020 Court of Appeal at Mwanza, Kundan Sigh Construction Co. Ltd v. Peter Ngugi Kamau, Miscellaneous Labour Application No. 11 of 2013, High Court Labour Division at Mbeya Unreported) and the case of Alexander M. Msolwa v. Doris Mwansasu, Civil Application No. 99/01/2019 Court of Appeal of Tanzania at Dar es salaam (unreported). In response to the contention that the Respondent will not be prejudice if the present application is granted Mr. Shayo submitted that 6 the Respondent has preferred an appeal before the Court of appeal against the very same decision subject of the present application. He argued that it is prudent to deny the present application on such ground too. In the upshot, Mr. Shayo urged the Court to dismiss the application for lack of merits. Rejoining the application, Mr. Nassoro insisted that the Applicants herein are among 118 Decree Holders, hence entitled to apply for review. He added that; Mr. Shayo did not mention the names of the alleged 117 Decree Holders in Execution No 207 of 2019. He insisted that the Applicants herein are among the said 117 Decree Holders. Mr. Nassoro faulted the allegation that the Applicants did not disclose good reason for the grant of extension of time for being baseless. He strongly submitted that the Applicants were not present when the impugned decision was pronounced. It was further contended by Mr. Nassoro that the Respondent's application for extension of time to file notice of appeal against the decision of this Court had already been dismissed by the Court of Appeal. He again reiterated his submission in chief and urged the Court to grant the present application. 7 After considering the parties submissions for and against the application, I find the Court is called upon to address two issues/ One, whether the Applicants have locus standi to institute the present application. Two, whether the Applicants adduced sufficient reason for the delay. To start with the firs issue, the Court take note of Mr. Shayo's contention that the Applicants herein were not the parties to the impugned decision. I have carefully examined the records which reveals that the Applicants herein are among the 118 Decree Holders in Execution No 207 of 2019. The names of all Judgement Debtors appear in the decision for the interpretation at the CMA in Labour Dispute No. CMA/DSM/ILA/439/2013 where all Applicants names herein appeared to such decision thereto which was subject to execution. Under the afore circumstance, it is my findings that, the Applicants herein were party to the impugned proceedings. I have further dully considered the cases cited by Mr. Shayo on this aspect. However, in the cited cases, the parties to the proceedings were either omitted without their choice or added at the appellate stage without leave of the Court as observed in the case of Salim Amor Diwani v. The Vice Chancellor Nelson Mandela African Institution of Science and 8 Technology (supra). Such position is contrary to the case at hand. As opposed, the Applicants were party to the proceedings in Execution No 207 of 2019. Notwithstanding the fact that the Decree Holders were 118, only 50 who filed the present application were aggrieved with the computation or decision of the Deputy Registrar. Therefore, since it is proved that the 50 Applicants herein are among the 118 Decree Holders, it is my view that the present parties are proper ones to the matter at hand and the intended review application. Coming to the second issue, the Court is to address on; whether the Applicants have adduced sufficient cause for the delay. What amounts to sufficient or good cause have been elaborated in range of decisions including the Court of Appeal case of John Mosses and Three Others v. The Republic, Criminal Appeal No. 145 of 2006 (unreported) when quoting the position of that Court in the case of Elias Msonde v. The Republic, Criminal Appeal No. 93 of 2005 (unreported) 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 9 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. Again, numerous decisions laid down principles to be considered for granting of an application for extension of time. This was also stated in the case of Lyamuya Construction Company Limited v, Board of Trustees of Young Women's Christian Association of Tanzania, (Civil Application No. 02 of 2010) [2011] TZCA 4 where it was held that: As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however the following may be formulated: - i. The applicant must account for all the period of delay. ii. The delay should not be inordinate. iii. The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. iv. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. io As stated above, the Applicants filed the present application for review of the decision of the Deputy Registrar. The application to file review in this Court is filed within fifteen (15) days from the date of the decision, in terms of Rule 27(1) of Z.C7? which, for easy of reference, the Rule provides as herein below: Any review shall be instituted by filing a written notice of review to the Registrar within fifteen days from the date the decision to be reviewed was delivered. As the record speaks, the impugned decision was delivered on 06/12/2022, whereas the present application was filed on 16/01/2023. Therefore, the Applicants delayed to file an application for review for 41 days. The Applicants' main reason for the delay to file the intended application is that they were not aware of the contents of the impugned decision. The record shows that at the date of the impugned decision, the Decree Holders (the Applicants herein) appeared through their Advocate, Mr. Juma Nassoro and the Judgement Debtor (the Respondent herein) was represented by Mr. George Shayo, Learned Advocate. On the same date of the decision, the records further show that, the Deputy Registrar asked the parties to address the Court on the computation of the Award. On the same date of 06/12/2022, before the decision was li pronounced, the matter was adjourned to 2pm for Court orders. The record reveals further that the Counsel for the Applicants did not appear as ordered by the Court. Then the Deputy Registrar proceeded to deliver decision in the presence of the Respondent's Counsel and in the absence of the Applicants' Counsel. Under the afore circumstance, the allegation that the Applicants were not aware of the delivered decision lacks merits. The Applicants appeared through the representation of their Advocates, whereas the Applicants' Advocate opted not to abide to the Court's order and attend pronouncement of the decision. Thus, the Applicants ought to have been informed of the impugned decision by their Advocate. I have also taken note that the matter originates from a dispute which arose long time ago. That, the Applicants were terminated since 13/07//2011. Both parties tried to pursue the Court through various applications which have been struck out. Thus, both parties should be aware that litigations have to come to an end. On the basis of the foregoing analysis, it is my view that the Applicants did not adduce sufficient reason for the grant of extension of time sought. Thus, the application lacks merit and it is dismissed. 12 It is so ordered. JUDGE 25/04/2023 Ruling delivered and dated 25th April, 2023 in the presence of the 1st Applicant and Learned Counsel George Shayo for the Respondent. JUDGE 25/04/2023 13