Mary Joseph Gunda and Another vs Shoppers Supermarket Ltd

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) LABOUR DIVISION AT DODOMA MISC. LABOUR APPLICATION NO. 17307 OF 2024 (Originating from CMA Labour Award in Labour Dispute No. CMA/DOM/19/2021/26 and CMA/DOM/20/2021/25 Commission for Mediation and Arbitration of Dodoma) MARY JOSEPHAT GUNDA.................................................. 1st APPLICANT ANNA BAHATI MALIMA...................................................... 2nd APPLICANT VERSUS SHOPPERS SUPERMARKET LIMITED................................. RESPONDENT RULING Date of last Order: 18/9/2024. Date of the Ruling: 23/10/2024. KHALFAN, J. This is ruling on preliminary objection raised by the respondent to the effect that: 1. That this court lacks jurisdiction to entertain this matter because the issue of time has been already determined in Labour Application No. 10 of2022 which was declared time barred. By parties' consensus, the above preliminary objection was argued by way of written submissions. The applicants were unpresented while Mr. Sweetbert Festo Moshi, learned advocate represented the respondent. In his submission in support of the preliminary objection, Mr. Moshi argued that, the instant application is incompetent and unmaintainable since this court had earlier on struck out Labour Revision No. 10 of 2022 which was adjudged time barred. According to Mr. Moshi, since the earlier application was struck out then the applicants could not file an application for extension of time. He submitted that, an order striking out the applicants' application was similar to an order dismissing the application. To buttress his arguments, the learned advocate referred to the case of Hashim Madongo & 2 others v. Minister for Industries and Trade & 2 others Civil Appeal No. 27 of 2003 Court of Appeal of Tanzania and the decision of this court in the case of Anderson Mwankusye v. Martin Ndunguru Misc. Land Application No. 119 of 2020 (both unreported). The learned advocate for the respondent urged this court to dismiss this application as it is incompetent. In reply, the applicants readily conceded that, they filed in this court Labour Revision No. 10 of 2022 but the same was struck out for being filed out of time. They submitted that, since the applicants have never applied for extension of time, this application cannot be termed as res judicata. They argued that the decision in the case of Hashim Madongo & 2 others v. Minister for Industries and Trade & 2 others (supra) is distinguishable with the matter at hand since the applicants have never filed any application for extension of time. In rejoinder, Mr. Moshi essentially reiterated his submission in chief maintaining that, the instant application is incompetent before the court. Having gone through the parties' rival submissions, it is not in dispute that, the applicants filed Labour Revision No. 10 of 2022 before this court. It is equally not disputed that; the said application was struck out for being time barred. In this application, the applicants are seeking an extension of time within which to file an application for revision. The issue for my determination is whether this application is rendered incompetent after the earlier application was struck out. In his submission, the learned advocate for the respondent maintained that, so long as the earlier application was struck out, it has the 3 same effect as if the said application was dismissed and therefore the applicants are barred from filing a fresh application. In the case of Juma Nhandi v. The Republic, Criminal Appeal No. 289 of 2012 (unreported) has endeavoured or tried to give explanation of the term "strike out" when making a distinction between "striking out" and "dismissing". While citing with approval the case of Ngoni - Matengo Cooperative Marketing Union Ltd v. Ali Mohamed Osman [1959 E.A. 577, in which the erstwhile Court of Appeal for East Africa discussed the distinction between "striking out" and "dismissing" an appeal, the Court had this to say in relation to "striking out": "This Court, accordingly, had no jurisdiction to entertain it, what was before the court being abortive, and not a properly constituted appeal at all. What this court ought strictly to have done in each case was to" strike out" the appeal as being incompetent, rather than to have dismissed" it; for the latter implies that a competent appeal has been disposed of, while the former phrase implies that there was no proper appeal capable of being disposed of. But 4 it is the substance of the matter that must be looked at, rather than the words used... "[Emphasis added] Thus, from the referred to decision above, in simple terms, where a matter is struck out, it implies that no competent matter was determined. But where a matter is dismissed, it implies that the same was properly presented before the court and was determined on merits. Regardless of the words used, it is the substance of the matter that must be looked at rather than the words used. While facing an akin situation, in the case of Mm Worldwide Trading Company Limited & 2 Others v. National Bank Of Commerce Limited Civil Appeal No. 258 of 2017, the Court of Appeal of Tanzania at Dar es Salaam (unreported) observed that where a matter is adjudged time barred whether by dismissing or striking out the same as it was in the former application for revision filed by the applicants, then such order is conclusive and the party cannot go to the very same court to reinstitute the matter. I have considered the applicants' arguments, that there was no application for extension of time ever determined by this court. With respect, in the instant application, the applicants seek to file an application for revision. Therefore, since the instant application if it succeeds will result to the filing of the matter which was already declared time barred, then it was improper for the applicants to file a fresh application. After their earlier application for revision was adjudged time barred, it was open for the applicants to appeal against such order and not file another application for extension of time. From the foregoing discussion, I find the preliminary objection raised by Mr. Moshi to have merits and the same is sustained. Consequently, the instant application is dismissed. In the circumstance, since this is a labour matter, I will not make an order as to costs. It is so ordered. DATED at DODOMA this 23rd of October, 2024. 6