20140221 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA HIGH COURT LABOUR DIVISION ATMWANZA REVISION NO. 65 OF 2013 BETWEEN MARCO ISEKE ...•........................................................... APPUCANT VERSUS TRUSTEES OF DIOCESES OF VICTORIA NYANZA ...•.................... ~ .......................... RESPONDENT RULING 19/02/2014 & 21/02/2014 S.A.N. Wambura, J. I i This is an application to set aside the decision Commission for Mediation and Arbitration (herein referred to as CMA) which dismissed the applicant's application for condonation for failure to show sufficient cause. ' Having heard submissions from both parties and having looked into the records of the case, I believe it is ,1orth to give a brief resume of the I I 1 matter. l' · i I This matter arose sometime in A gust 2010 when the respondents Trustees of The Dioceses of Victo~i~ Nyanza decided to suspend the services of one Marko Iseke (the applicant). He claimed to be paid his salary while on suspension but it was sometime in November, 2011 when the respondents replied that he was sus ended without pay. 1 : 1' i ; ! ,' th The applicant thus filed his first complainant at CMA on 15 of December, 2011. As the letter was dated 16/11/2011, I believe by then the application was within the said time. This is because it has within the 30 days. In fact it was even not a letter of termination. It is worth nothing that to date he has not been served with an official letter of termination. Probably investigations on the matter are still going on. It has been alleged that the first application was struck out and he was advised to sue the Trustees and not the Bishop whom he had earlier sued. Apparently the applicant delayed td file the second application as he alleged to be attending his sick mother/ krsonally. She was not taken to hospital nor the traditional healer so he icbuld not produce any sick sheet or letter to prove the same. i When he finally filed the same on 04/04/2013 it was struck out for I: being improperly filed. He refiled th~ same for the third time on 1,1 29/04/2013. The last application was dismissed as no reasonable ground ! was adduced for the delay, thus this application. ' I ' II., ' ' ,I Now the mandate of this court is to rule out as to whether the allegation that he was attending his sick mother personally is a sufficient ground for this court to grant the appnt1nt an extension of time to file the same or not. This is per Rule 56 (1) of the Labour Court Rules, 2007 which 2 provides that:- "Rule 56 (1) The Court may extend or a bridge any period prescribed by these Rules on application and on good cause shown; unless the court in precluded from doing so by any written law'~ [Emphasis is mine]. Admittedly, this is a long standing matter which has seen the applicant knocking tirelessly to enter the gates of justice without any luck. As stated by Mr. Luhui who represented the respondents, the applicant failed to produce a sick sheet from any hospital nor letter from the village or ward leader to prove that he was attending his sick mother locally. It is true and that is why the same was dismissed at CMA. However, he was not filing the same for the first time. An earlier application had been filed and struck out then he had to be given a deduction of the days that had passed in between that is from the date of the order to the date of refiling the same and not from the date when he was first served with a letter of suspension. It is unfortunate that I do notl have the dates when the first application was struck out. The secotid application was struck out on ! 22/04/2013 and the third application! refiled immediately, that is on 25/04/2013 as he alleges to have been. given an extension of 14 days to refile the same. Indeed it did not ext~nd the same from the date the first application was struck out. So time began to rum from that date, and not I from August, 2010 nor November, 2011. 3 I do note that in the case of Tanzania Fish Processors LTD vs Christopher Luhangangula, Civil Appeal No. 161/1994 (unreported), It was held that one should not be allowed to come to court when one wishes to do so. However as stated earlier the applicant had filed his first application in time. The delay was caused while he had already filed an earlier matter at CMA. In the case of Felix Tumbo Kisima Vs. TTCL Limited and Another [1997] TLR 57 (CAT), it was held that, the term "sufficient cause" should not be interpreted narrowly. but should be given a wide interpretation to encompass all reasons ;Or causes which are outside the applicant's power to control or influence; resulting in delay in taking any I. necessary step. In the circumstances, I believe he should be granted the benefit of doubt and be allowed to file his complaint out of time at CMA. More so because I note that there are a lot of legal issues which need to be resolved in this matter, that iJ:- (i) Whether or not there is ! legal contract of employment between the parties. •I (ii) Whether or not the applicant is entitled to payments while on suspension or not. (iii) Whether the applicant has been legally terminated or not and (iv) Whether or not the applicant is entitled to any legal relief. 4 These cannot be so resolved if the iparties are not given access to adduce evidence to prove or challenge the i[5ame. In the circumstances, I grant the application for condonation as each case has to be decided upon in accordan~e to its facts, circumstances and I I merits. ' Applicant to file his complaint at CMA within seven (7) days from the date of this order. It is so ruled. S.A. Date: 2110212014 Coram: Hon. S.A.N. Wambura, Judge Applicant: Present in person For Applicant: Respondent: For Respondent: Mr. Davis Dominick, Representative ' I CC: J. Kalolo. ' :• 5 •· Court: Ruling delivered this 21 st day of February, 2014 at t~e presence of I the applicant who appeared in person and Mr. Davis Dominick who appeared for the respondents. ra . 1/02/1014 1 ' 6 • i I '