moses peter mhina and 2 others vs platnum credit ltd 2021 tzhcld 35 10 march 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 745 OF 2019 MOSES PETER MHINA & 2 OTHERS...................... APPLICANTS

VERSUS PLATINUM CREDIT LIMITED ..^RESPONDENT

RULING Date of Last Order: 05/03/2021 Date of Ruling: 10/03/2021 Z. G, Muruke. J, Moses Peter Mhina and two oth^^^et^gipioyed on diverts dates and on different employment stafus contract Upon termination, they both filed dispute at CMA. Same was^truckjoHron 25th September, 2019 for misjoinder of parties hence|Jifferent®^se of action. Being disatisfied, they filed revision number^’Q^>18 that was withdrawn with leave of 14 days to refile. They4ieldu-eyi§ion number 240/2019, that was struck out upon concession of preliminary objection filed by respondent counsel. th However court|granted~14 days leave to file competent application. On 19 JI October,a019<appl)cant filed Misc application number 604 of 2019 that was strud^put b^this court for incompetent upon concession by applicant counsel%p^>27th November, 2019. Applicants now have filed present application for Moses Peter Mhina to represent his fellow. Upon being served, respondent filed counter affidavit followed by notice of preliminary objection, that application is time barred, on 10th January, 2020. Hearing was by way of written submission. David B. Wasonga represented applicant while Praygod J. Uiso, represented respondent. In i short respondent counsel argued that, applicant has filed application out of time given by the court. Applicant has delayed nine month and 14 days from the first order dated 6th March, 2019. The only

remedy is to be dismissed with costs since the applicant's has been filing various application's which are vexatious, frivolous and time wasting. He insisted that respondent has been incurring, a lofeof cost and time in defending applicant's application while are friyblo^s and^/e>$atious. Equally court has spent time and resources to ha^le applicant^applications by issuing several orders and directives none oyber^was complied. Thus applicant counsel, pressed for dismissal of thejappBcatKjmwith costs. Applicant counsel, admitted series^ oL events as articulated by respondent counsel. However,me argued,Application is not out of time. Reckoning of dates cannot start Trom the date of first order i.e. 06th May, $0^ f-h 2019, when first revision was struck out. Then on 25 September, 2019 applicant was granted,»14^ays^leave. The order of 27th November, 2019 did not grant applicanfJea\^However, last order dated 27th November, 2019 did^notebJ^applicant from filing present application. All the applications filed was a result of respondent counsel attempt to frustrate th^applicantswy^ raising un meritorious preliminary objections insisted applicant counsel Mr. David Wasonga, who then requested for dismissal of preliminary^ objection that aimed at prolonging litigation process and frustrating applicants. Having heard both parties submission on the preliminary objection on time limitation,

it is worth noting at the outset that, time limitation in litigation of essence. It is they to ensure that genuine claims comes to an 2 end. Without limitation, courts of law will have endless litigation at the whom of the parties, that cannot be accepted. From the records, decision sought to be challenged was delivered on 26th October, 2018 it is true that, one; 1st revision number 670/2018 was withdrawn on 6th March, 2019, with leave of 14 days to refile. Two; 2nd revision No. 240 of 2019 was struck o^forlincompetence on 25th September, 2019, with leave of 14 days to refile. Three; Misc application number 604/2019„was struck out for being incompetence on 27th November, 2019. Four; present Misc application number. 745/2019 was filed on 20th December, 2019, for orders of representative suit, i.e Moses Peter Mhina be granted leave to represent histfellow Joyce Peter. Legally once an orcfeftfc^extension is granted, to file any matter in court, and once, such^pplicaugn is struck out for being incompetent, everything goes wjff&njnii^frpetent application, nothing left. Thus, after XK, la striking Miis^ippl^j^number 604/2019, for being incompetent, there was nothigg^^fprgpplicant to hold as leave to file present application out of 'tjme. Argument chat time start to run from the last order 27th November, 2019, that is, misconception by applicant counsel. Time start to run from when

decision sought to be challenged was pronounced. It is true as correctly submitted by both counsels that, Labour Court Rules GN 106/2007 does not provide for time within which to file application like present one. Thus, resort to item 21 to the 2nd schedule to the law of limitation Act, Cap 89, provides for sixty days on any other application in which time is not provided for. 3 CMA/DSM/KIN/R.589/18 on 28‘^ay,l^^hen filed CMA form number ne. It is almost 3 years now, Ke. a periocl of 2 years and 10 months or 34 months. Since filing <^^dis^^^t is applicants who are filing The wording of the above law clearly stipulates that it is 60 days. Decision was pronounced applications. on 26 So, resppnderjt th October, has 2018. been called PresenttoMisc to answer the application applicants number 745/2019 was filed on 20th December, 2019 being after one years claims. and 54 days. Extremely out of time. For tnr^^&a^rgspondent have been prejudiced by ongoing dispute filed by cannotits,^ Thisa@.|j^ said preliminary be ontrary objectionofisthe to the purpose prolonging litigation Labour Laws, and that is geared at applicants. frustrating It isguide regulating and point of law pure relations in the neec^to ^^ascertained thatemployment and labour before we proceed on the merits of the applicati^hl^rhus -f)reliminary industtWiWame to an end for enhanced efficient and productivity for objection

raised by respondent on time limitation meritious/ttas upheld. attainment of social justice. Unfortunately, applicants have been drugging respondents in court without paying any costs upon failure of their case. According to Section 50(6) of the Labour Institutions Act No. 7 of 2004 as amended by Section 19(b) of the written laws (Miscellaneous Amendment) Act No. 3 of 2010 4 and Rule 51 of the GN No. 106 of 2007 and Section 88(9) of the Employment and Labour Relations Act No. 6 of 2004 and Rule 34 of the GN No. 64 of 2007, Labour disputes are free of costs, interests and fees, however, costs are only allowed where there is the proof of frivolous and/or vexatious proceedings. Issue of costs in labour cases was also discussed in the case of Tanzania Breweries Limited Vs. Nancy Maronie, Labour Dispute no. 182 of 2015 (unreported) where it^as heldfthat; % Whether the dispute or application is befote/the Commission W for Mediation Jr Arbitration or in Arbitra^wfiWAJ andand Labour Court (LC) tothe Hig^Court^ have Tanzania, their disputes dealt with and on thecost is awarded otper hand notonly where there allowing those is arfyexistence parties of frivolous to being frivolous and case.vexatious proceedings. and/or vexatious Honourable Vallensi Wambali, Actfffg^ifector Arbitration Department % in the Commission for Media|pn arr^^bitration (CMA) in his recent paper titled IS COST FREE

THE^lCJURCE OF DELAY IN HANDLING LABOUR DISPUTE: LAW AND P^R CWpN TANZANIA, at page 3 paragraph 2 he said. The law is designe^tomake sure that in making decisions on costs orders thf^MA^hdLCseek to strike a balance between on one hand, not unduly discouraging employees, employers, unions and employers association ^^rc^^approaching the Commission for Mediation and Court of Appeal granted costs upon withdraw of the notice of appeal in a matter originated from labour dispute in Civil Application No. 600/08 of 2017 Stanbic Bank Tanzania Limited Vs. Bryson Mushi, for clarity order is reflected below. 5 Upon the applicant lodging in Court a notice of withdrawal of the application on 22/05/2020 and non -appearance white duly notified to appear, Mr. Steven Emanuel Makwega, Learned Advocate, who appeared for the respondent, had no objection to the prayer to withdraw the application but he pressed for costs. We indeed, agree with Mr. Makwega that the applicant lodged the aforesaid notice for withdrawal of the application in tern^pfR0e^8(l) and (2) of the Tanzania Court of Appeal Rules, 2019^m^ules^M^ accordingly grant the applicant's prayer we jnark the application withdrawn under Rule 58(3) of the Rules. The respondent to have costs of the case. The above Court of Appeal decision on withdraw of notice, only, but costs was granted, hand, applicants has filed frivolous and vexatious

applicatio^i^^^ra: 3 years. It is worth insisting that the law is designed to .make sureRtnat in making decision on costs the Commission for Mediat^%r^Z^bitration (CMA) and Labour Court, seek to strike a balance one hand, not unduly discouraging employees^gmplp^r|,^!ons and employers association from approaching the CMA anaMabo®K Court, to have their disputes dealt with and on the otlw ha^^K^feuowing those parties to bring frivolous and vexatious case. Acairaing to Vallenci Wambali (supra) cost-free labour litigation as contemplated by the International Instrument had good motive specifically in assisting the weaker party who have genuine claims to easily access the court and Tribunal with aim of resolving the dispute fairly and quickly with the spirit of repairing the relationship between capital and labour. At the same time looking the way forward on how to increase efficiency 6 through productivity at work and when doing so, social justice is upheld. The aim of cost -free was not to delay or deny or burry justice rather was to make sure justice is costless and time met. It should be understood that, cost-free in labour matters is not a leeway or loophole to the parties to waste time and other resource, either in the Commission or in Courts and once this is not observed&the court or the Commission will regulate the situation by awarding costswhere frivolous and vexation acts

have been proved. As demonstrate<Wy series of defective applications filed by applicants TprWiree years, against Respondents, there is a need to award costs<to^he respondent, for having been drugged in court unnecessarily. By filing defective application since CMA in May, 2018 to date that application is out of time, respondent has not only incurred costs but also wasted her time for 34^month^^o answer for endless defective applications. Thus applicsborvdismissed for being out of time with costs.

JUDGE 10/03/2021 Ruling|delivered in the presence of applicant in person and Pray God Uiso for the respondent. Z.G.Muruke

JUDGE 10/03/2021 7