Martin Masenya v Bulyanhulu Gold Mine and 2 ors judgment

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LABOUR REVISION NO. 202408271000021086 (Originating from Labour Dispute No. CMA/KHM/82/2023) MARTINE JULIUS MASENYA……………….……….…..….…..…..…. APPLICANT VERSUS BULYANHULU GOLD MINE LIMITED……………….…....…….1ST RESPONDENT SANLAM LIFE INSURANCE (TANZANIA) LIMITED…….…...2ND RESPONDENT NDEGE INSURANCE BROKERS …………………………….……3RD RESPONDENT JUDGMENT Date of Last Order 18.11.2024 Date of Judgment: 17.01.2025 MWAKAHESYA, J.: The applicant, Martine Julius Masenya, is seeking for this court to revise the ruling of the Commission for Mediation and Arbitration at Kahama (the CMA) delivered on 19.07.2024 in Labour Reference No. CMA/KHM/82/2023. At the CMA the applicant was seeking condonation in order to bring a tortious claim against the respondents. After hearing the parties, the CMA refused to grant the applicant’s request prompting the applicant to file the present application. The application, brought by way of a notice of application and chamber summons made under section 91(1)(a), 91(2)(c) and 94(1)(b)(i) of the Employment and Labour Relations Act (the ELRA), rule 1 24(1), 24(2)(a)(b)(c)(d)(e)(f), rule 24(3)(a)(b)(c) and (d) and rule 28(1)(c) of the Labour Court Rules (the Rules) is supported by an affidavit sworn by the applicant himself. Meanwhile, contesting the application, the respondents filed their respective notices of opposition and counter affidavits. The background of events culminating to this application is as follows: The applicant was an employee of the first respondent from the year 2008 to 2015 when he was terminated on medical grounds (incapacity). The first respondent had insured the applicant with the second respondent through a broker, i.e., the third respondent. In the course of ascertaining his terminal benefits the applicant was told that his disability was not covered in the insurance policy and he would be paid TZS 6,042,620/= as ex gratia payment instead of TZS 50,355,168/= which was the sum insured had his disability been covered under the policy. Payment of TZS 6,042,620/= was done in the year 2015. Dissatisfied with the conduct of the first respondent, in the year 2020, the applicant instituted a civil suit against the respondents in the Resident Magistrates’ Court of Shinyanga claiming TZS 44,312,548/= (which was the balance between the ex gratia payment and the sum insured), and TZS 200,000,000/= as general damages. The suit was decided in the applicant’s favour whereby he was granted TZS 2 44,312,548/= as the insured sum, TZS 5,000,000/= as general damages, he was also awarded costs of the suit. This was on 28.02.2022. Aggrieved by the decision of the Resident Magistrates’ Court, the respondents appealed to the High Court – Shinyanga through Consolidated Civil Appeal No. 16 & 17 of 2020. The respondents were successful, the High Court holding that the Resident Magistrates’ Court did not have jurisdiction to entertain the suit since it was labour in nature. The High Court proceeded to nullify the proceedings of the Resident Magistrates’ Court and set aside the subsequent orders thereto. The High Court’s judgment was delivered on 03.11.2023. The decision of the High Court is what prompted the applicant to file, at the CMA, Labour Reference No. CMA/KHM/82/2023 in November, 2023 seeking condonation as the time limit for referring his type of dispute, in accordance with rule 10(2) of the Labour Institutions (Mediation and Arbitration) Rules, 2017, was 60 days from the date the dispute arose and it had already expired. And as stated previously, the CMA refused condonation. The applicant has now come to this court seeking revision of the CMA’s decision. By consensus the application was argued through written submissions which were duly filed by the parties. 3 In support of the application, it was the applicant’s submission that the learned arbitrator erred in law and fact by holding that he ought to have accounted for each day of delay between 30th March, 2015 to December, 2020 because in his circumstances he was not bound to do so since he was alleging illegality. He referred to the case of Attorney General Zanzibar v. Laemthong Rice Company Limited & Another, Civil Application No. 729/15 of 2023, Court of Appeal at Zanzibar (unreported), where it was held that: “… I am of the considered view that even though there is a considerable delay in the application; pertinent issues have been raised. Firstly, there is an allegation of illegality, irregularities and impropriety…which cannot be brushed aside.” [Emphasis added]. The applicant also faulted the learned arbitrator for relying on the High Court case of William Ryoba Wambura v. Grumeti Reserve Limited, Application for Revision No. 18 of 2020, High Court Labour Division at Musoma (unreported) which held that, “illegality must be on the Court decision”. It was the applicant’s view that, the above quoted holding is not the current position of the law. He cited the decision of Rovitha Kemilembe v. Mic Tanzania Limited, Civil Application 192/17 of 2021, Court of Appeal at Dar es Salaam (unreported) to buttress his contention. He submitted that in the cited decision the Court held that: 4 “Illegality is when the decision making authority commits an error of law in the process of taking or making the act subject of the complaint.” [Emphasis supplied] The applicant elaborated that, in the most recent decision of the Court of Appeal of Ramadhani Omary Mbuguni (A Legal representative of the late Rukia Ndaro) v. Ally Ramadhani & Another, Civil Application No. 140/12 of 2023 (unreported) the term illegality was defined in the context of Black’s Law Dictionary, 8th Edition, page 763, which is: “an act that is not authorized by law. The state of not being legally authorized.” [Emphasis supplied] He also quoted the finding of the Court at page 12 which went as follows: “In this case, the illegality imputed by the applicant allegedly resides in the decision by the 1st respondent to initiate appeal proceedings to two of the lower appellate courts.” With regards to the holding of the learned arbitrator that the applicant’s counsel did not point out any illegality, let alone elaborate to that effect, it was the applicant’s submission that, the learned arbitrator erred in law and fact by holding as such because there was no obligation on the applicant’s counsel to do so. Again, reference was made to the case of Attorney General Zanzibar v. Laemthong Rice Company Limited & Another (supra) where it was held that: 5 “Being mindful of the fact that, at this juncture, I am not supposed to dig much and demand the applicant to divulge further on the pointed-out illegalities…” [Emphasis supplied] The applicant was also adamant that, the alleged illegality was pointed-out in paragraph 6 of the Notice of Application, read together with paragraphs 4, and 5 of the Affidavit. Replying to the applicant’s submission, the first and third respondents filed joint submissions. It was their argument that, that the applicant would not have been bound to account for each day of delay if illegality would have been raised and established as a ground for extension. In its ruling, the CMA ruled that there was no illegality to justify grant of extension of time. As such, the applicant was bound to account for the delay. That being so, to the first and third respondents, the case of Attorney General Zanzibar v. Laemthong Rice Company Limited & Another (supra) relied on by the applicant was not applicable. They submitted further that, paragraph 6 of the notice of application at the CMA stated that: “…the decision of not paying the insured some money was tainted with illegality as to be advanced in the affidavit”. 6 They elaborated that, in the affidavit supporting the said application, including its paragraphs 4 and 5, there is no a mention of illegality as a ground for extension of time. The first and third respondents went on to submit that, in his written submissions in supporting of the application for condonation, at the CMA, the applicant did not submit on any illegalities and while commencing the submissions, the applicant had stated, that: “Looking at paragraph 8 of the Affidavit, the sole ground of this Application is that the Applicant was advised by the High Court of Tanzania, Shinyanga Sub-Registry…The Respondent may wish to file this claim in the appropriate forum.” They submitted further that, the issue of illegality only came to surface in the applicant’s rejoinder submissions as an afterthought. To them it was unlawful for the applicant to do so since he ought to have raised it in his submission in chief. They elaborated that, since illegality was not established as a ground for extension of time, then the applicant was bound to account for each day of delay for the period between 30.03.2015 to December 2020. They referred to the Court of Appeal decision in Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No. 8 of 2016, Court of Appeal of Tanzania at Dar es Salaam (unreported) where it was stated that: 7 “It is already a well settled rule since more than ten years ago in unbroken chain of this Court’s decision to the effect that in the application of this nature the applicant is obliged to account for the delay for everyday within the prescribed period.” Concerning the position of the law regarding as to what amounts to illegality, the first and third respondents submitted that, in William Ryoba (supra) it was stated that illegalities committed by the parties outside court proceedings are not grounds for extension of time. They quoted the holding of the court which stated that: “To put it in simpler terms, an illegality in the context of an application for enlargement of time does not touch on any illegalities alleged to have been committed by one of the parties against the other. It does not include any illegality that is likely to be part of the main application should the applicant obtain the extension sought. The illegality in the context of extension of time is an illegality committed by the court, the CMA, a tribunal or any other judicial making body, but never one of the parties act or omission” They submitted further that, the allegation of illegalities stated in paragraph 6 of the CMA notice of application, was based on a wrong allegedly committed by the respondents prior to the case being filed, this it did not qualify as a ground for extension of time. Regarding the case of Ramadhani Omary Mguguni (supra) cited by the applicant, they were of the view that: First, the illegality in that case was addressed in an application for revision before the Court of Appeal and not an application for extension of time. Second, the 8 applicant selectively cited only a portion of the decision. In the omitted portion, found at page 12 to 13 the Court made a ruling which is against the applicant’s own argument. In those pages, the Court stated: “While a few eyebrows may be raised on the 1st respondent's decision, and it is probably a step out of the ordinary, we ask ourselves whether that was an illegality. In our unflustered view, the answer to this question is an emphatic No! As much as the step taken by the 1 st respondent appears to be in poor taste for the applicant, we are hardly convinced that the 1st respondent's action falls in the ambit of illegality as we know it. We, in consequence, hold the firm view that the illegality cited by the applicant is nothing short of illusory and a mere figment of imagination. As such, it cannot be the basis for founding revisional proceedings.” [Emphasis is supplied] It was, therefore, their opinion that Ramadhani Omary Mguguni (supra) was distinguishable. Lastly, on whether the applicant was bound to elaborate the alleged illegality, it was the first and third respondent’s submission that in the case of Lyamuya Constructions Company Ltd v. Board of Registered Trustees of Young Women’s Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) cited by the CMA, the Court of Appeal emphasized that an alleged illegality must be apparent on the face of record and that the illegality has to be identified. They also made reference to Hassan Abdulhamid v. Erasto 9 Eliphase, Civil Application No. 402 of 2019, Court of Appeal of Tanzania at Dar es Salaam (unreported). It was the first and third respondents’ view that the application lacks merit and ought to be dismissed. The second respondent’s reply to the applicant’s submission in chief was that, the applicant was bound to account for each day of delay from 30.03.2015 up to December 2020 as per the case of Muse Zongori v. Richard Kisika Mugendi Civil Application No. 244/01 of 2019, Court of Appeal at Dar es Salaam (unreported) where it was held that: “It is trite that a delay, even of a single day has to be accounted for.” Concerning illegality, the second respondent concurred with the first and third respondents that the alleged illegality must have been made by a court/tribunal or authority and no one else. The second respondent contended further that, the applicant was supposed to demonstrate reasons for delay and account for each day of delay. In rejoinder, the applicant briefly submitted to the effect that, the respondents’ act of unlawful deduction of insurance compensation is apparent on the face of record, and has not been disputed by the respondents. 10 Having gone through the records and the submissions of the parties, it is now opportune time to determine the merit or otherwise of this application. I will start with the contents of the CMA Form No. 2 which was the applicant’s application for condonation of a late referral of a dispute. In the details on the degree of lateness the applicant submitted that the reason for lateness was: “sickness for about five years consecutively and pursuing the matter in court (technical delay).” And as to the prospect of success in the dispute referred, the applicant was of the view that: “The applicant stands high chances of success in the dispute as the matter is tainted with illegalities.” In the Notice of Application at the CMA in paragraph 6 the applicant had this to say: “That, the decision of not paying the insured some money was tainted with illegality as to the be advanced in the affidavit.” Paragraphs 4 and 5 of the applicant’s affidavit at the CMA, which has been argued by him as pointing out the illegality read: “4. That, after the occurrence of the occupational health case, the insurer only paid the amount of Tshs. 6,000,000/= as ex-gratia leaving behind Tshs. 44,312,548/= unpaid, later on the amount paid as ex-gratia was deducted from the 11 applicant’s terminal payment paid by the 1st respondent of applicant thus the claimed amount remained Tshs. 50,355,618/=. Copy of the Insurance Policy and payment list are collectively annexed and marked as annexture MM-1 to form part of this affidavit. 5. That, the applicant continued with treatment even after his termination, after some follow ups of the matter the Chief Secretary to the Ministry of Labour, Youth, Employment and Persons with disabilities ordered the 1st respondent to refund the applicant the amount of money spent in treating the disease which is Tshs. 81,535,000/= which has not yet paid. Copy of the letter from the Chief Secretary of the Ministry is hereby attached as annexture MM-2 to form part of this affidavit.” [Emphasis in original] As it can be seen there was neither mention nor pointing out of the alleged illegality in the applicant’s affidavit. The application for condonation was argued by way of written submissions and it was the applicant’s submission that the sole ground for the application was technical delay. At the outset of his submission the applicant stated that: “Looking at the paragraph 8 of the Affidavit, the sole ground for this Application is that the Applicant was advised by the High Court of Tanzania, Shinyanga Sub-Registry…” The applicant then went on to quote the High Court’s decision which stated that: 12 “Based on what I have stated above, I hereby nullify the trial courts proceedings, and set aside the decision and orders thereto, the respondent may wish to file this claim in the appropriate forum.” And finishing off his submission in chief the applicant stated that: “…based on the foregoing, it is our humble view that, the Applicant has managed to prove technical delay, and consequently, invoked the jurisdiction of this Honourable Commission in line with Rules 11(3)(a), and (c) of the said Rules to warrant extension of time as prayed”. [Emphasis mine]. There was no mention of illegality whatsoever in the applicant’s submission in chief at the CMA. It was only after the respondents had made their submissions in reply that the applicant, in his rejoinder, changed stance and came out with the issue of illegality. In the fourth paragraph at page 2 of his rejoinder the applicant submitted that: “…it is trite law that once illegality is alleged, the applicant is not bound to account for each and every delay. Therefore, the issue of accounting for the said period is irrelevant in so far as this Application is concerned…” I think it is irregular that in his submission in chief the applicant had categorically stated that he managed to prove technical delay, and only to come and renege by stating that accounting for the said period, of delay that is, was irrelevant (in his rejoinder). As correctly submitted by the first and third respondents, the issue of illegality was not canvassed at all in the applicant’s submission in chief. It came as an 13 afterthought in his rejoinder leaving the respondents without room to counter the same. This was improper, regardless of the fact that through CMA Form No. 2 the respondents had hinted that illegality was alleged. The CMA ought not to have considered the applicant’s submission on illegality submitted in his rejoinder as the same amounted to condemning the respondents unheard. However, be as it may, the learned arbitrator refused to accept illegality as a valid cause for the applicant to be granted condonation, citing the following reasons: one, that the illegality was neither pointed out nor elaborated; and two, the illegality must be based on a court’s decision and must be apparent on the face of record. The learned arbitrator emphasized that the illegality should not be based on any shortcomings to be resolved upon the determination of the dispute on merits. He cited the case of William Ryoba v. Grumeti Reserves (supra) to justify his stance. The learned arbitrator then went on to rule that the applicant was supposed to account for each day of delay and he failed to do so. I must state that it is only in his affidavit in support of this application for revision that the applicant has tried to elaborate on what he thinks was a wrong interpretation of the insurance cover taken out by the first respondent and that the first respondent erred in interpreting what amounted to “permanent total disability” as provided in the 14 insurance policy. This being an application for revision, this court can only revisit what was presented at the CMA and deliberate on it and nothing else. The approach taken by the applicant in elaborating the alleged misinterpretation, thus illegality, at this point, is futile and a mere attempt to sneak in facts through the back door. Like the CMA, this court is also of the view that an alleged illegality must stem from a decision of a court, tribunal or other organ of a like nature, that is a judicial making body. To state that it can arise from any decision, especially one that the parties intend to contest in their substantive dispute is farfetched, as it would amount to deciding the merits of the dispute without hearing the parties. This is exactly what the High Court held in William Ryoba’s case (supra). The applicant has cited the case of Rovitha Kemilembe v. Mic Tanzania Limited (supra) as providing the current state of the law different from that in William Ryoba (supra), but with due respect, having revisited Rovitha Kemilembe’s case (supra) it does not state that an illegality can stem out of any decision as the applicant would want us to believe. Apart from that, through numerous decisions, some cited by the applicant himself, the illegality has to be identified and be apparent on the face of record and should not be established through a long drawn 15 out argument and process (see: Attorney General Zanzibar v. Laemthong Rice Company Limited & Another (supra) and Lyamuya Constructions Company Ltd’s case (supra)). Therefore, this court is of the view that, at the CMA the applicant did not point out/identify the illegality alleged, apart from simply mentioning the same in the CMA Form No. 2. And again, having gone through the record of the CMA, this court has not been able to identify any illegality that is sought to be challenged at the CMA. In the end this court finds nothing to fault the CMA’s decision in denying condonation. Thus, this application lacks merit and is accordingly dismissed. Since it stems from a labour matter, I make no order as to costs. DATED at SHINYANGA this 17th Day of January, 2025. N.L. MWAKAHESYA JUDGE 16