maria ephraim masua and others vs unaweza credity facility limited 2020 tzhcld 17 11 september 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 386 OF 2019 BETWEEN MARIA EPHRAIMM MASUA & 3 OTHERS............. APPLICANTS VERSUS UNAWEZA CREDITY FACILITY LIMITED............ RESPONDENT JUDGEMENT Date of Last Order: 14/07/2020 Date of Judgement: 11/09/2020 Aboud, J, This is an application to revise and set aside the ruling of the Commission for Mediation and Arbitration (herein referred as CMA) dated 22/02/2019 by Hon. Mahiza R.B, Mediator in Labour dispute No. CMA/DSM/KIN/R. 117/17/1056. The application was made under the provision of section 91 (1) (a) 91 (2) (b) (c) 94 (1) (b) (i) of the Employment and Labour Relations Act [CAP 366 RE 2019] (herein referred as The Act) Rule 24 (1), 24 (2) (a) (b) (c) (d) (e) and (f), Rule 24 (3) (a) (b) (c) (d) and 28 (1) (a) (c) (d) (e) of the Labour i Court Rules GN. No. 106 of 2007 (herein referred as the Labour Court Rules). The applicants' the joint affidavit supported the application. The respondent vehemently challenged the application through the counter affidavit of Norah Kaaya, Respondent's Principal Officer. The dispute emanates from the following background. The applicants were employed by the respondent at different dates from 10/04/2017 and 02/07/2017 at the position of Credit Officer until 09/10/2015 when the respondent breached the employment contract. Aggrieved by the employer's action the applicants referred their dispute to the CMA on 13/10/2017. When the matter was at mediation stage the applicants discovered that they did not fill Part B of the referral form (CMA Fl). They thus prayed to withdraw the complaint and the prayer was granted on 05/12/2018. Thereafter the applicants re-filed their complaint on 13/12/2018 which was accompanied by an application for condonation. The Arbitrator determined the application for condonation and dismissed the complaint on the ground that the applicants did not 2 adduce any sufficient reason for their delay. Dissatisfied by the Arbitrator's decision the applicants filed the present application. The hearing of this matter proceeded was argued by way of written submission. The applicants were represented by Mr. Edward Simkoko, Legal Secretary of TASIWU while Mr. Augustino Ndomba, Learned Counsel appeared for the respondent. Arguing in support of the application Mr. Edward Simkoko submitted that, the Mediator misdirected himself in deciding that the applicants failed to advance sufficient reasons for their delay of 42 days. He stated that the applicants obtained the withdrawn order on 11/12/2018 and refilled their complaint on 13/12/2018, thus they acted diligently. Mr. Simkoko argued that the applicant's reason for the delay is reasonable and justifiable. He therefore prayed for the application to be allowed. Responding to the application Mr. Augustino Ndomba raised a preliminary objection that the present application was filed out of time without seeking leave of the Court. He therefore prayed for the application to be dismissed. 3 As to the merit of the application he submitted that, the applicants did not adduce sufficient reasons for their delay hence the Mediator was right to dismiss the application. The Learned Counsel prayed the application to be dismissed in its entire. Having considered the submission by both parties, I find it worthy to determine the preliminary objection raised by the respondent. The respondent raised a preliminary objection that the matter at hand is time barred. The provisions of the Act did not specifically provide the limitation of time in filing revision applications against CMA's ruling. The provision available provides for the limitation against an arbitral award. To cure such a lacuna it has been the practice of this Court to apply the provisions of arbitral award in revision of CMA's ruling. Therefore, the limitation of filing the present application is 42 days which is provided under section 91 (1) (a) (b) of the Act. In the application at hand the impugned ruling was delivered on 22/02/2019 while the present application was filed on 25/04/2019 which is almost 56 days after the date of the decision. As stated above the law requires an application for revision as the present one 4 to be filed within 42 days, however the applicants at hand have filed their application after 56 days from the date of the decision. Therefore it is crystal clear that, the application at hand is time barred and the applicants never bothered to apply for extension of time to file their application for revision. It has to be noted that limitation is there to speed up administration of justice. This position was firmly stated in the case of Dr. Ally Shabhay vs. Tanga Bohora Jamaat [1997] TLR 305 where it was held that:- "It is settled law that those who seek justice in court of law must file proceedings within the prescribed time, otherwise they will face the law of limitation as a bar. Parties cannot conduct litigation as they deem fit. Limitation clause is there to speed truck proceedings. To the contrary, court will have endless litigations at the whims of the parties". The question to be addressed before this Court is the remedy for time barred application. It has been decided in number of cases that the only remedy for time barred applications is dismissal. This is also the position in the case of DED Sengerema D/Council vs. 5 Peter Msungu & 13 Others, Lab. Div. Mwanza, Misc. Appl. No. 27/2013 (unreported) Rweyemamu J. held that:- "When an action is time barred a party seeking to initiate it must first apply for extension of time. That the applicant did not do, consequently, I find this application incompetent and dismiss it as per the requirement of the law and practice". The above position was restated in the case of TANESCO Ltd vs. Bakari Mayongo, Lab. Div. SBWG. Rev. No. 02 of 2015 [2015] LCCD 1 where it was held that:- "The only remedy for the late filed application in this court is dismissal and not striking out as the applicant would wish it to be in this matter so that they can file their application for extension of time to file the revision application." 6 The Court went on to hold that:- "It is unfortunate the law of limitation Act on actions knows no sympathy or equity, it is a merciless sword that cuts across and deep into all those who get caught in the web." On the basis of the above discussion the Court finds no relevance to discuss the merit of this application because was improperly filed before the Court. It is clear that the application was filed out of time without leave of the Court and is hereby dismissed. It is so ordered. JUDGE 11/09/2020 7