Misc Civil Application No 4554 of 2024 NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM MISCELLANEOUS CIVIL APPLICATION NO. 4554 OF 2024 (Arising from the Decision o f the Industrial Court o f Tanzania in Revision Application No. 14 o f2003 dated 11/04/2005) BETWEEN MICHAEL DAVID NUNGU.................................................. APPLICANT AND THE INSTITUTE OF FINANCE MANAGEMENT................. RESPONDENT RULING S. M. MAG HIM BI, J: This Court has been moved by the applicant under the provisions of Section 14 (1) of the Law Limitation Act [Cap. 89 R. E. 2019] and Paragraph 7 (1) of the Third Schedule to the Employment and Labour Relations Act [Cap. 366 R. E. 2019], seeking for orders that this Court: - 1. This Court be pleased to extend the time for the applicant to file an appeal to the full bench of the High Court of the United Republic of Tanzania against the decision of the Industrial Court of Tanzania. In revision application No. 14 of 2003 dated 11th April 2005. 2. Any other reliefs this Honourable Court deems just and equitable to grant in favour of the applicant. When this matter came for hearing on 04th April, 2024 the Court ordered the matter be disposed by way of written submission, hence this ruling. In this application, the applicant was represented by Mr. Lucas Kamanija learned Advocate while the Respondent was represented by Mr. James Igakinga, Legal Secretary of the respondent and Mr. Stanley Mahenge, learned State Attorney. Background of the matter at hand is that the applicant was employed by the respondent on permanent and pensionable terms from 1/7/1988 to 06/4/1999 when the applicant was summarily dismissed from employment. After dismissal, the applicant complained to the Labour Commissioner urging to be reinstated to office. On 08/01/2003, The Labour Commissioner referred the complaint to the defunct Industrial Court of Tanzania by way of Inquiry, vide Inquiry No. 4 of 2003. The Tanzania Industrial Court deliberated on the Complaint and eventually dismissed it. Being dissatisfied, the applicant filed a revision recourse before the Industrial Court of Tanzania in Revision Application No. 14 of 2003, the application was heard and ended up being dismissed after the Court found it to be unmerited. Challenging the decision of the Industrial Court, the applicant filed a judicial review which was also dismissed by the High Court. Undoubtedly the applicant appealed to the Court of Appeal on 12/09/2023, numbered as Civil Appeal No. 170 of 2020. The Court of Appeal held that the decision of the Industrial Court of Tanzania in Revision No. 14 of 2003 could be challenged in the High Court of Tanzania through an appeal instead of Judicial Review as was done by the applicant. The Court eventually set aside the decision of the Industrial Court of Tanzania in Revision No. 14 of 2003. It is from that decision that the applicant is now applying for extension of time to file an appeal to the full bench of this Court to challenge the decision of the Industrial Court of Tanzania in Inquiry No. 4 of 2003. In his submissions to support the application, the applicant prayed to adopt the Affidavit sworn by Michael David Nungu to form part of their submission. As for the reasons for the delay, Mr. Kamanija submitted that the applicant has accounted for all the days of delay. He took time to make lengthy submission from the year 2005 to the time that the decision of the Court of Appeal was made. I must make it clear that what happened to the applicant from the first time he lodged his complaint to the Labour Commissioner to the day an appeal was lodged at the Court of Appeal are of no relevancy to our application at hand because those days are not to be justified in this application, these are undisputedly accounted for. However, the applicant's duty in this application is to justify the days of delay from the time the Court of Appeal pronounced its decision on 12/09/2023 striking out Civil Appeal No. 170 of 2020 for being incompetent to the 05th day of March, 2024 when the current application was filed in this court. On his part Mr. Kamanija termed it as a technical delay supporting this kind of delay by citing the case of Fortunatus Masha vs William Shija and Another [1997] TLR154 where it was held that: "A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and a fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement o f the ruling o f the Court striking out the first appeal. In these circumstances an extension o f time ought to be granted...The finding o f an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timeousness o f applying for filing the fresh appeal. "(Emphasis added) He further explained the delay between the period I have pointed to include the applicant's sickness. He submitted that from the 13/09/2023 to 23/02/2024 the applicant was sick arguing that sickness constitutes valid explanation and a sufficient cause for delay. The case of Hamis Macha Sancho Vs. Joyce Bachubila, Civil Application No. 487/17/2016 was cited to support this point. It was added that the applicant having feli sick, he had to stay home for a long time and failed to take action upon Revision Application No. 14 of 2003 after being struck out. That from 24/02/2024 the applicant felt better and consulted Advocate Dr. Lucas Charles Kamanija who advised him to file for an extension of time. From 24/02/2024 to 26/02/2024 the Advocate above prepared and filed this application in this Court. Mr. Kamanija's other ground to justify the grant of this application was what he alleged to be illegality in the decision intended to be challenged. He supported the fact that illegality is a ground for extension of time by citing the case of Principal Secretary, Ministry of Defence and National Service vs Devran Valamabia [1992] TLR 185 and Mohamed Salum Nahdi Vs Elizabeth Jeremia (Civil Reference No. 14 of 2017) where the Court of appeal held that: - 'We say so because the law fairly settled that in applications o f this nature, once an issue o f illegality in the decision sought to be challenged is raised, that amounts to good cause and the Court, even if every delay is not accounted for, would grant an extension sought so as to rectify the illegality on appeal. "(Emphasis added) He then submitted that the decision of the industrial Court of Tanzania in Revision Application No. 14 of 2003, is tainted with illegalities which are apparent of the face of record as particularized in paragraph 67 (a) - (q) of the affidavit. He contended that it has been established by the Court that where there is an arguable point worth consideration on appeal on merit, this too forms a sufficient ground for extension of time. The case of Deusdedit Kisiwe vs Protaz Bilauri (Civil Application No. 49 of 2004) TZCA was cited. He also averred that the applicant's delay to lodge the appeal within time does not constitute a case of procedural abuse or contemptuous default, rather the delay was caused by the factors elaborated above. He argued that denial for extension of time will stifle the applicant's case supporting his argument by the case of Mobrama Gold TLRCorporation Ltd vs Minister for Energy and Minerals and Another [1998] 1425, the Court held that: - "It is generally inappropriate to deny a party an extension o f time where such denial will stifle his case, as Respondent's delay does not constitute a case o f procedural abuse or contemptuous default and because the applicant will not suffer any prejudice, an extension should be granted. (Empasis is added) Lastly Mr. Kamanija pondered on the right to appeal stating that the applicant has the right to appeal to the last Court of the Land as embodied under Article 13(6)(a) of the Constitution of the United Republic of Tanzania as amended from time to time. The applicant's Counsel stated the applicant has shown reasonable and sufficient reason for extension of time to file an appeal before the full bench of this Court against the decision of the Industrial Court of Tanzania in Revision Application No. 14 of 2003. In reply, Mr. Igakinga also prayed to adopt the Counter affidavit sworn by Kizzy Abbas Masoli to form part of his submission against the application. It was the Mr. Igakinga's submission that to grant or not grant an application for extension of time to do a certain act is a discretion of the Court, the discretion which has to be judiciously exercised. That the application will only be granted upon demonstrating sufficient cause or reason. In this averment the respondent cited the case Finca (T) Limited Another vs Boniface Mwalukisa, Civil Application No. 589/12 of 2018 in which the Court of appeal cited with assertion the decision made in the case of Kalunga and Company Advocates vs National Bank of Commerce Limited [2006] TLR 235 where the Court of Appeal held that: - "It is settled law that where extension o f time is sought, the applicant will be granted, upon demonstrating sufficient cause for delay. Conversely, it is also settled that sufficient cause depends on the deliberation o f various factors, some o f which revolve around the nature o f action taken by the applicant immediately before or after becoming aware o f that the delay is imminent or might occur". Mr. Igakinga submitted further that there is no hard and fast rule as to what amounts to sufficient cause but this Court and the Court of appeal have come up with the guide lines to be considered by the Court to grant or not grant an extension of time. That these grounds were well and lucidly expounded in the case of Athuman Mtundunya vs The District Crime Officer Ruangwa & 2 Others, Civil Reference No 15/20 of 2018, whereby Court of Appeal held that: - ".. that application for extension o f time is matter o fdiscretion which has to bejudiciously exercised; regard must be if there wasgood cause advancedby the applicant; the applicantmust account for each day o f delay; and that when the issue o f illegality is raised concerning the proceedings o f the lower Court, an extension o f time will always be granted." Basing on the plethora of authorities cited above, he argued that the issue for determination is whether the applicant has demonstrated sufficient cause to warrant indulgence of this Court to exercise its discretion to grant an extension. He then questioned whether the applicant had accounted for each day of delay worth for the Court to exercise it powers, denying that fact. His reasons were that the Judgment of the Court of Appeal was delivered on 12/09/2023 and the present application was filed on 24/03/2024 almost after a lapse of 6 months and 12 days. On the Annexure MD 20 which was annexed to the affidavit of the applicant, Mr. Igakinga submitted that it is not conclusive proof that the applicant was sick for the applicant to have failed take necessary steps to file this application. That Annexure MD 20 which was prepared on 04/02/2024 is obviously a response to the request made by the applicant to the health Clinic, but the applicant has not demonstrated as to when he requested to be provided with annexure MD 20. In absence of when the said annexure was requested the respondent state that the applicant did not act promptly in filing the present application following the appeal being struck out at the Court of appeal. He submitted further that, annexure MD 20 shows that the applicant was attending clinic on appointment and not attending clinic 24 hours 7 days a week. The respondent also averred that the applicant was in Court when the decision in Civil Appeal No. 170 of 2020 was delivered and should have communicated with his advocate immediately. Mr. Igakinga emphasized that the applicant had time to communicate with his advocate for necessary steps to be taken in filing the application since the respondent's Counsel Mr. Kamanija learned Advocate has been the one representing him since 2019. Further that the applicant did not attach any medical chits showing respective dates on which he attended clinic and received treatment. He argued that in absence of the medical sheets the applicant has failed to account for the days of delay. The respondent Counsel added that the applicant was an outpatient and not admitted, hence not a reason for delay, citing the case of Athumani Mtundya vs The District Crime Officer Ruangwa & 2 Others (supra) was cited at pages 8 it was held that: - "... That apart, even if they are genuine, stifi the applicant was attending the dispensary as outpatient He was not hospitaiized." The Court went on holding the following atpage 9 o f the ruling o f the Court; in that regard we fuiiy agree with the single justice that medical chits do notjustify the reason for delay in filing." On the point of illegality, Mr. Igakinga's submitted that, the Court of appeal has outlined of what amounts to illegality as far as grant of extension of time is concerned, the case of Zawadi Msemakweli vs 10 NMB PLC Civil Application No. 221/18 of 2018 (unreported) the Court of appeal held that; - "Whether there is a point o f law o f sufficient importance such as the illegality o f the decision sought be challenged..." It was further submitted that the identified illegalities by the applicant do not fall within the ambit of what is required to be termed as illegality of decision for indulgence of the Court to warrant the Court to exercise its power to grant extension of time. It was the respondent's contention that the illegalities identified by the applicant not only are illegalities of decision to be challenged, but also are not apparent on the face of record as the same call for long drawn argument or process for them to be discovered. The cited case on this point was the case of Mtengeti Mohamed vs Blandina Macha, Civii Application No. 344/17 of 2022 where the Court stated that; - "Illegality can be used as shield to hide against inaction on the party o f the applicant. And if I may add the position set by our previous decisions is that, irrespective o f the ground advanced by the applicant in support o f an application for extension o f time, he must as well show diligence, and not apathy, negligence or ineptness in prosecution o f the actions that intends to take". ii • That, based on the case above, inaction and negligence by the applicant has been demonstrate as follows; the judgment of Court of appeal of Tanzania was delivered on 12/09/2023 but the present application was filed on 24/03/2024 almost after a lapse of 6 months and twelve days. That Annexure MD 20 shows the applicant was attending clinic on appointments hence he had a chance to make follow ups of his case through his advocate. Having lined the submission and plethora of cases above, the respondent concluded by a prayer that the application is in want of merits hence it should be dismissed with costs. I have considered the records of this application and the submissions for and against the application. It is undisputed that the factors to be considered while determining an application for extension of time in our Courts has been elucidated in a plethora of cases in our jurisdiction. To begin with, granting or refusing to grant a prayer for extension of time is within the discretion of the Court, a discretion which ought to be judiciously exercised. As for the applicant, he/she has the obligation to assign sufficient/reasonable cause to convince the Courts to exercise those discretionary powers (See the case of Kalunga and Company Advocates vs National Bank of Commerce Limited [2006] TLR 235; Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania 12 I (Civil Application No. 2 of 2010) [2011] TZCA). It is also undisputed that illegality has also been considered as a ground for extension of time on the parameters that have been precedented by different decisions of this Court and the Court of Appeal (See the cases of Principal Secretary, Ministry of Defence and National Service vs Devran Valamabia [1992] TLR185; Mohamed Salum Nahdi vs Elizabeth Jeremiah (Civil Reference No. 14 of 2017) [2019] TZCA 168 (14 June 2019); Transport Equipment Ltd v. D.P. Valambhia (1993) TLR 9) just to name but a few. In the case of Lyamuya Construction Co. Ltd vs Board of Registered of Young Women's Christian Association of Tanzania (Supra) a landmark case in determination of an application for extension of time, the Court of Appeal laid down the following principles to be observed by Courts before ordering extension of time: "(d) The applicant must account for all the period o f delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy negligence or sloppiness in the prosecution o f the action that he intends to take; and (d) I f the court feels that there are other sufficient reasons, such as the existence o f a point o f law o f sufficient 13 importance; such as the illegality o f the decision sought to be challenged." Coming to the application at hand, it is important to see whether the principles above or some of them have been fulfilled by the applicant sufficient to move the court to exercise its discretionary powers. Mr. Kamanija submitted that the end the journey to pursue the applicant's right ended at the Court of Appeal in Civil Appeal No. 170 of 2020 when the decision in the said appeal was delivered on the 12/09/2023. The current application was filed on 26/02/2024 which is a period of five and a half months after the decision of the Court of Appeal was delivered. Now, the advanced reason for this delay is pleaded by the applicant to be sickness. Evidence to support his sickness was Annex MD-20 to the affidavit which is a letter from a clinic he allegedly attended. On his part, Mr. Igakinga opposed this ground of sickness arguing that on the day that the decision was delivered at the Court of Appeal, the applicant was present in Court and that they believe he had informed his Counsel since it was the same Counsel that had been representing him since 2019 in this same matter. He emphasized that sickness is recognized to be a sufficient cause but upon being proved that the applicant was truly sick and could not have moved to take necessary steps to pursue a legal matter within time. 14 In the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) his Lordship Mwambegele J.A, stated at page 12 that: - "'Firstly, it is long settled that the court's discretion must be exercised judiciously as opposed to capriciousness on the basis o f material placed before it for consideration. While there is no dispute on the respondent's heart complications which would ordinarily constitute good cause, the respondent did not satisfy the CMA that the delay was solely due to sickness. We think the learned advocates for the respondent's reference to John David Kashekya v. The Attorney GeneraI (supra) can only be relevant where sickness is the sole reason for the delay and properly explained (emphasis is mine)..." Considering sickness of the applicant to have been pleaded as the cause of delay to have filed the matter in Court as directed by the Court of appeal, the applicant was obliged to properly explain as to how the sickness he suffered barred him to act in time taking into account the sickness he suffered as stipulated in annexure MD 20 the affidavit. Looking at the annexure which is a letter from DR. Oie Lengine's Memorial Hospital written on 04/02/2024, the same states that the applicant has 15 been attending the hospital regularly as an outpatient since March 2022. On the same letter at third paragraph, the court is informed that in September 2023, the applicant also attended the clinic as an outpatient and again at the last paragraph that the applicant has been attending as ENT Clinic where he had several visits. Referring to our application at hand, the decision of the Court of appeal was delivered on 12/09/2023. Annexure MD 20 does not have explanation as to where was the applicant from October, 2023 to when the matter was filed in Court. It is also pertinent to note that the letter informs that the applicant has been attending the clinic since September, 2022, but he could make appearances at the Court of Appeal when the decision was delivered. There should therefore have been grounds to justify as to why then up till September 2023 he could attend both clinic and the court but for the next five months plus he could not move the court in pursue of his right. Further to the above the Annexure MD-20 is not elaborate as to which exact dates the applicant attended clinic. The sickness of the applicant from annexure MD 20 has been known and the same does not properly explain that the applicant from the sickness was hospitalized or put to bed rest and to prove his delay. Having all the above in mind and on the principle that each day of delay must be accounted for, I find that 16 the applicant has failed to account for the days of delay on the ground of sickness. Mr. Kamanija also raised a point of illegality as a reason to move the court to extend time. It is trite law that when illegality is pleaded the same forms a sufficient reason for an extension of time. However, the point of illegality must not involve a long line of arguments, it should be manifested on the face of record See the case of The Principal Secretary Ministry of Defence and Notional Service Vs. Devram Valambia [1991] TLR 387, where it was held: - "In our view, when the point at issue is one alleging illegality o f the decision being challenged' the Court has a duty, even if it means extending the time for the purpose, to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record straight The applicant has pleaded illegality on the decision of this court in Revision No. 14 of 2003 (see paragraph 67 (a) to (q) of the affidavit). It is from the illegalities the applicant claims that this application is worth an extension of time. In reply the respondent stated that the illegalities claim does not fall from the ambit of what is required to be termed, as illegality. On my part, this reason will not detain me, since the revision No. 14 of 2003 that the illegalities are grounded upon was rendered incompetent 17 and the Court of appeal and was set aside, it no longer exists. This is because the Court of Appeal ruled that the decision of the Industrial Court from which the revision originated from could have been tried by a normal Court which is the High Court by way of Appeal, hence that part of the concern of illegality has been resolved by the Apex Court and will no longer form part of any subsequent proceedings. I therefore find the illegality pleaded not to constitute a reasonable cause for extension of time. In conclusion therefore, having the two grounds for extension of time not met by the applicant sufficiently to move this court to exercise its discretionary powers, I find this application to be without merits and is hereby dismissed. It is so ordered. JUDGE 18