REV NO 18155 OF 2024 MEDINOVA HEALTH CARE VRS ASHA DAUDI MBARUKU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 18155 OF 2024 CASE REFERENCE NO. 202407281000018155 BETWEEN MEDINOVA HEALTH C A R E ......................................................... APPLICANT VERSUS ASHA DAUDI M BARUKU....................................................... RESPONDENT RULING Date of last Order: 24/ 09/2024 Date of Ruling: 15/ 10/2024 MLYAMBINA, J. The Applicant filed the present application challenging the decision of the Commission for Mediation and Arbitration (herein CMA) which granted the Respondent extension of time/condonation to refer her complaint out of time. The application is premised on the following issues: a) Whether it was proper for the trial Arbitrator to grant application for condonation without considering the fact that the intended labour dispute was withdrawn by the Applicant without leave to re-file. b) Whether it was proper for the trial Arbitrator to grant application for condonation without considering the fact that there were no sufficient reasons for condonation. i c) Whether it was proper for the trial Arbitrator to condone the delay without considering the fact that each day of delay was not accounted by the Respondent. The application proceeded by way of written submissions. The Applicant was represented by Mr. Dickson Sanga, learned Counsel. On the other hand, the Respondent enjoyed the services of Counsel Alfred Ruwaaika Kiritta. In his submission in response to the application, the Respondent raised an objection worth to be considered before going to the merit of the application. Though the objection ought to have been raised earlier, it is my view that since the Applicant had a chance to respond thereto through rejoinder, there is no prejudice if the same will be considered by I ^ the Court. The Respondent raised that; the application for revision is prematurely filed before the rights o f the parties were determined to finality. It was Counsel Kiritta's submission that, this application is against an interlocutory order of the CMA. He argued that the order of the CMA was interlocutory in nature as it did not finalise the Labour Dispute between the parties herein hence not subject to revision. In support of his argument, the Counsel referred the Court to the case of Tanzania Portland Cement Pic v. Lukas Mwakabanga, Revision Application No. 15801 of 2024, [2024] TZHCLD 158. Counsel Kiritta argued that the term "interlocutory order" has already been defined by number of case laws, including the case of Tanzania Posts Corporation v. Jeremiah Mwandi, Civil Appeal No. 474 of 2020, 2021 TZCA 311, the Court of Appeal citing with authority the case of Seif Sharif Hamad v. S.M.Z [1992] TLR 43, in which the Court adopted the definition in Black Laws Dictionary (4th Edition), which defined the term Interlocutory Order as: An order which decides not the cause, but settles some intervening matter relating to it. It was added by Counsel Kiritta that the Court of Appeal went further to borrow the definition of the term in the 9th Edition of the same dictionary which defined the term interlocutory order to mean: An order that relates to some intermediate matter in the case, any order than the final. He also referred to other numerous decisions which will be considered by the Court. In the upshot, he urged the Court to dismiss the application. In response to the objection, Counsel Sanga submitted that the objection is a new issue never existed before, thus, the same be disregarded by the Court. As stated earlier, though the objection was not raised at the earliest stage as ought to be, the same is worth to be considered. The objection at hand has already been determined by this Court in numerous decisions including the case of International Tax Consultants Ltd v. Macdonald Justus Rweyemamu, Labour Revision No. 199 of 2023, High Court of Tanzania Labour Division at Dar es Salaam where the Court held that: It is the observation of this Court that; if the application for condonation is denied, the order is final in effect. It is definitive of the rights of the parties because nothing remains in place for determination. As such, the aggrieved party will have the right to file revision before this Court. But if the application for condonation is granted, the primary consideration should be to accord the parties with the right to be heard on merits because that course will bring the just and expeditious decision of the major substantive dispute between them. The above stance was upheld again in the case of La Gloire De Diue Trading & Transport Limited v. Aloyce Mathew Mtui, Revision Application No. 27570 of 2023, High Court Labour Division, Dar es Salaam. The position was also upheld in the case of Tanzania Posts Corporation (supra). In this case, since the matter before the Court of appeal is yet to be determined, I sustain the position in the cited decisions. The decision against grant of condonation is interlocutory and cannot be determined before this Court. Hence, premature as rightly raised by Counsel Kiritta. In the result, I find the preliminary objection at hand has merit. This application is prematurely filed contrary to Rule 50 o f the Labour Court Ru/es (supra). The application is hereby dismissed accordingly. The matter is ordered to proceed with Arbitration stage before the CMA. It is so ordered. Y.J. MLYAMBINA JUDGE 15/10/2024 Ruling delivered and dated 15th October 2024 in the absence of the Applicant and in the presence of the Respondent in person.