HOSSEA WILLIAM

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA-SUB REGISTRY) AT BUKOBA MISCELLANEOUS LABOUR APPLICATION NO. 14 OF 2023 (Arising from the Award in Labour Dispute No. CMA/BMC/14/2021ARB dated 28/04/2023, G. P. Migire, Arbitrator) MAMLAKA YA ELIMU YA UFUNDI STADI (VETA).............. APPLICANT VERSUS HOSEA WILLIAM NKWAMUZI (Administrator of the estate of the late MISOJI BERNAD SHILINGI...................................... RESPONDENT RULING 22/10/2024 & 04/11/ 2024 KIWONDE, J. The applicant named above filed an application by chamber summons supported by an affidavit of Nestory Joseph Lutambi praying for the court orders below: i. That this honourable court be pleased to extend time within which the applicant can apply for revision against the award of the Commission for Mediation and Arbitration (CMA) at Bukoba in Labour Dispute No. CMA/BMC/14/2021ARB dated 28/04/2023 by G. P. Migire, Arbitrator. I 1 ii. Any other relief the honourable court deems fit to grant. On due service on the respondent, he filed a counter affidavit refuting some facts deponed in the affidavit supporting the application and the matter became ripe for hearing. During hearing of the application, the application was represented by Mr. Nestory Lutambi, State Attorney, whereas, the respondent enjoyed the legal service of Mr. Pereus Mutasingwa, advocate. In his submissions in-chief, Mr. Nestory Lutambi, learned State Attorney argued that the applicant relies on a single ground for this application for extension of time to file revision out of time. He alleged illegality in the award of the Commission for Mediation and Arbitration dated 28/04/2023. According to the State Attorney, the parties had settled the matter during mediation before the Commission and the settlement deed was prepared. However, the applicant defaulted to honour the same. The learned State Attorney said later on, the applicant paid the respondent. Also, it was argued that the respondent went back to the Commission and filed another application which was heard and led to the award. He said this time, the Commission raised the amount of money to be paid to the respondent to above seven million plus (TZS). It is from this act the 2 applicant finds there is illegality for there exists two awards on the same subject matter and same parties. Besides that, the learned State Attorney said the Commission once finalized the matter it became functus officio and the second application was res judicata. Apart from that, the State Attorney argued that illegality apparent on the face of record is a sufficient ground for this court to extend time for the applicant to lodge application for revision out of time. He argued that illegality exempts the applicant from accounting for each day of delay. He referred to the case of Lyamuaya Construction. Furthermore, the State Attorney argued that under section 95 (4) of the Employment and Labour Relations Act, the settlement made before the CMA became an award, final and could be executed. So, the act of the CMA to hear the same matter, which was res judicata, under section 10 of the Civil Procedure Code, Cap 33 was wrong. The State Attorney insisted that the CMA had no jurisdiction to entertain the second application and this court cannot close its eyes to the award issued by the CMA without jurisdiction, so, even if the applicant cannot account for each day of delay, but the reason of illegality suffices to extend time. He prayed the application be granted. 3 In reply, Mr. Pereus Mutaingwa, advocate resisted the application on reason that the applicant has to account for each day of delay. That the applicant was negligent. The counsel submitted that the applicant was present before CMA at all times even on 12/04/2023 and 18/04/2023 when the ex parte order was issued, via one Mathias Kulwa, State Attorney. The counsel said this application was filed on 27/10/2023 almost six (6) months of delay. The learned counsel argued that in law, delay even for a single day must be accounted for as it was a position in The Bishop Roman Catholic Diocese of Tanga Versus Casmir Richard Shemkai, Civil Application No. 507/12 of 2017, Court of Appeal of Tanzania at Tanga. In additional to that, the counsel said the applicant had to file an application before the CMA to set aside the award and not in this court. But due to sloppiness and negligence, the applicant did not do so. On the issue of illegality, there were no two awards by the CMA. There was only one award dated 28/04/2023. This was according to law which empowered the arbitrator so to do under section 88(8)(a)(b) of the Employment and Labour Relation Act, Cap 366 (R. E 2019). The counsel said, in law, settlement cannot be executed unless it is turned to be award. When the applicant defaulted to oblige to the settlement deed, the 4 respondent applied to change the settlement to be an award under rule 29 of the Labour Institutions (Mediation and Arbitration) Rules, 2007, GN No. 64 of 2007. According to the counsel, the settlement deed before the CMA was not final and so, it was not capable of being executed until it was changed to an award for the court executes the award only. Therefore, he was of the firm view that the applicant's claims are devoid of merits, he prayed the application be dismissed. In rejoinder submissions, Mr. Nestory Lutambi, State Attorney argued that the principle to account for each day of delay has an exception if illegality is established. He further said there was no meaning to apply for setting aside the ex parte award of the CMA because the body had no powers and the cited case is irrelevant. It is obvious that there was a settlement deed and the amount to be paid was indicated. It was a full settlement. When the applicant defaulted to pay, the application to change the settlement to an award was to be according to the settlement. He said the CMA increased the amount to 7M plus different from the one in the settlement. When the applicant defaulted to pay, the respondent was to apply for execution of the decree and not to file a fresh application. 5 The learned State attorney insisted that under section 95 of the Employment and Labour Relation Act, the settlement is binding and can be executed. There is an illegality apparent on the face of records, the reason sufficient to grant an order for extension of time to challenge the award of the CM A. From the pleadings, the records of the Commission for Mediation and Arbitration and oral submissions, the major issue for determination is whether there is sufficient cause shown for the court to extend time within which the applicant can file application for revision. In law, the court can extend time within which the applicant can file application for revision out of time if the applicant establishes sufficient or good cause for his delay. The good cause depends on the circumstances of each case. However, the factors which the court takes into consideration before granting order extending time include; one, length of time of delay, two, reason for delay, three, if the applicant was not diligent to pursue his rights, four, whether grant of the order extending period will prejudice the respondent and five, if the applicant can account for each day of delay, six, whether there is arguable case such as a point of law or illegality apparent on the face of record. 6 This was a position in Lyamuya Constructions Company Ltd Versus Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010 [2011] TZCA 4 (3rd October 2011), Mohamed Salum Nahdi Versus Elizabeth Jeremiah, Civil Application No. 474/01 of 2016 [2017] TZCA 338 (8th June 2017) and Wambele Mtumwa Shahame Versus Mohamed Hamis, Civil Reference No.8 of 2016 [2016] TZCA 898 (12th October 2016). In the application at hand, the applicant has raised a ground of illegality. If the same is proved, it is a sufficient reason to grant an order for extension of time regardless the length of time of delay. In Stephen B. K. Mhauka Versus The District Executive Director Morogoro District Council and 2 others, Civil Application No.68 of 2019, Court of Appeal of Tanzania at Dar-es salaam (unreported) it was categorically stated that illegality which is apparent on the face of record is a good ground for allowing application for extension of time however long period of delay may be. However, having gone through the records of the Commission for Mediation and Arbitration, it came to my knowledge that the application which led to the award dated 28/04/2023 was quite distinct from the 7 previous one which was settled amicably out of the Commission. In this application, the respondent claimed for payment of TZS 6, 124, 324.80 subsistence allowance equal to 17 months basic wage for a delayed payment by the applicant which he was to pay between 30/09/2021 to 09/02/2023. The applicant does not dispute that the payments were delayed in violation of the settlement agreement. The respondent too does not dispute that the applicant paid some amount later on. Therefore, it is obvious that the two applications before the CMA were different. For that matter, the issue of resjudicata and functus officio does not arise. So, the ground of illegality cannot stand. Since this was the sole reason for this application, thus, the application lacks merits and it is hereby dismissed. This being a labour matter, I make no order as to cost. Dated at Bukoba this 4th November 2024. F. H. KijoNDE JUDGE 04.11.2024 Court: Ruling is delivered in chamber in the presence of Mr. Nestory Lutambi, State Attorney for the applicant, Mr. Pereus Mutasingwa counsel 8 for the respondent and Grace Mutoka (RMA) this 4th November 2024 and the right of appeal is explained. F. H. KIWGNDE JUDGE 04.11.2024 9