moteswa lusinde vs nokia solutions network 2023 tzhcld 1317 16 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 101 OF 2023 (Arising from Judgment o f High Court o f Tanzania Labour Division No. 62/2021 made by Hon. Muruke, Z.G. dated23dJune2021) MOTESWA LU SIN D E.......................................................APPLICANT

VERSUS NOKIA SOLUTIONS & N ETW O RK ............................ RESPONDENT

RULING 12th - 16th June, 2023 OPIYO. J. This application is for extension of time to file a review of the decision from a Labour Revision No. 62 of 2021 delivered by Hon. Muruke, Z. G. (Judge). The application was supported by the applicant's affidavit. The matter before the court proceeded orally whereby both parties were represented by the Learned Advocates. Mr. Denis Malamba was for the applicant whereas Mr. Emanuel Godson appeared for the respondent. Mr. Malamba submitted that the reasons for delay was because the applicant had long sickness and the death of his father. He stated that the situation made the applicant to stay out of Dar es Salaam for a long resulting to losing communication with his advocate. He continued that the other reason is illegality found in the judgment delivered on 23rd June, 2023 by Hon. Muruke, J. To support his point, he referred to cases of Principal Secretary Ministry of Defense and National Service v. Devram Valambia [1992] TLR and Julo Ally vs Lucas Komba and Aloyce Msafiri, 484 of 2019, CAT. Against the application Mr. Godson submitted that rule 56 of the Labour Court Rules requires good cause to be shown in application for execution of time. He supported his point, by referring to the case of Yasinta Malisa vs John Malisa, Civil App. 167/01 of 2021. He added that the reason of illegality relied by the applicant does not show sufficient

cause. He added that the applicant is required to also account for each single day of delay. But the applicant failed to account on each day he delayed. For that, he referred the case of Elifazi Nyatega vs Kaspian Mining Ltd, 44/08 of 2017, CAT. He advocated for dismissal of the application for lack of merits. In rejoinder Mr. Malamba submitted that the court has moved from the principle of accounting of each day delayed to showing good cause as it jeopardizes the application. He added that, if this application is denied it will be denying the applicants right to be heard. He then reiterated what he had submitted in chief. After perusal of parties' submission, the court has been given a task to determine whether the applicant has adduced sufficient reason to warrant grant of the application. Applicant through his advocate and his affidavit in support of the application stated that the application if granted intends to review the decision of this court. Rule 27(7) of the Labour Court Rules, G.N. No. 106 of 2007 provides for time limitation to file an application for review. It states that: - "On receipt o f a copy o f the decision o f the review, the appiicant shaii within fifteen days fiie a concise memorandum o f review stating the grounds for the review sought without narratives or arguments." Attachment to the affidavit shows that the decision intended to be reviewed was

pronounced on 23rd June, 2021 and this application was filed on 18th April, 2023 which is almost one year and 9 months. The law is also clear that the applicant may be granted an extension of time but upon 3 showing a good cause. The same has been provided under rule 56(1) of G.N. No. 106 of 2007 that: - "The Court may extend or abridge any period prescribed by these Ruies on appiication and on good cause shown, uniess the Court is precluded from doing so by any written law. " In the case of Wambura N J . Waryuba v. The Principal Secretary, Ministry for Finance and Another, Civil Application No. 320/01 of 2020, it was held that: - ”... it is essential to reiterate here that the Court's power for extending time... is both wide-ranging and discretionary but it is exercisable judiciously upon cause being shown." Also, the land mark case of Lyamuya Construction Company Limited Vs. Board of Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) laid down principles to be considered in the grant of an application for extension of time where it was held that: - "As a matter o f genera! principle, it is in the discretion o f the Court to grant extension o f time. But that discretion is judicial, and so it must be exercised according to the rules o f reason and justice, and not 4 according to private opinion or arbitrariiy. On the

authorities however the following may be formulated: - i. The applicant must account for all the period o f delay. ii. The delay should not be inordinate. Hi. The applicant must show diligence, and not apathy' negligence or sloppiness in the prosecution o f the action that he intends to take, iv. I f the Court feels that there are other reasons, such as the existence o f a point o f law o f sufficient importance, such as the illegality o f the decision sought to be challenged." Applicants reasons stated by his advocate are sickness of the applicant, the death of the applicants father and illegality and also that his fathers death forced him to be out of Dar es Salaam making him loosing communication with his advocate. On the reason of sickness, the case of Nyanza Road Works Limited vs Giovanni Guidon, Civil Appeal No. 75 of 2020, CAT at Dodoma acknowledge the reason for sickness if it is the one to be ground for extension of time. The other reason was the death of the applicant's father. In all these, the law requires one who alleges to prove the fact he alleges. This is provided under section 110(1) of the Evidence Act [CAP. 6 R.E. 2022]. 5 In the matter at hand the applicant did not attach any document to prove his sickness. The said documents would prove whether the applicant was sick and if so when it was and even duration. And even for the reason of the death of his

father, the applicant did not attach any document as to when the death of his father occurred to ascertain the effect in relation to the timing he was supposed to take action relating to his case. His just mere words do not prove that those circumstances really happened within the timeframe. Since those reasons were not proved, they cannot stand as the reason for extension of time. On the reason of illegality, the case of Firica (T) Ltd and Another V. Boniface Mwalukisa, Civil Application No. 589/12 of 2018, held that: - "... illegality is a good ground for extension o f time. But in order to plead illegality successfully, it must be glaringly apparent on the face o f the record" In the case at hand, the advocate for the applicant stated illegality as one of the reasons but he did not mention under what part on the face of the records the illegality can be seen. He just stated at paragraph 3.4 of the affidavit on his belief that there is an error apparent on the face of the decision, without bothering to put forward the believed error. This falls short of prima facie establishing the existence of any error on the face of the decision worth reviewing. On the reason of not communicating with his advocate, case laws have already determined that. One of the case is the case of Lim Han Yun and Another v. Lucy Theseas Kristensen, Civil Appeal No. 219 of 2019, CAT. cited in the case

of Salome Kahamba vs Siril Augustine Mallya, Miscellaneous Civil Application No. 557 of 2021, HC at DSM at page 9 that: - "The appellants cannot throw the whole blame on their advocates. We think that a party to a case who engages the services o f an advocate, has a duty to closely follow up the progress and status o f his case. A party who dumps his case to an advocate and does not make any follow ups o f his case, cannot be heard complaining...." On that aspect the applicant ought to have made a make follow up on his advocate so as to know the progress of his case. And even communicate with him through phone while he was out of Dar es Salaam for him to take up the matter, his physical absence in Dar es salaam should not have been 7 a hindrance to him in pursuing the matter as he had a legal mind working on his behalf. In my considered view, such failure was out of his own negligence which has been heid in numerous cases as not being a sufficient cause to make court exercise its discretion in his favour. On the issue of accounting for days of delay, the advocate for the applicant stated that he did not account for each day delayed because that principle jeopardizes the applicants right. In Daudi Haga vs Jenitha Abdan Machanju, Civil reference No. 19 of 2006, Court of Appeal of Tabora, (unreported), among many cases of settling this position that: - "A person seeking for an

extension o f time had to prove on every singie day for delay to enable the Court to exercise its discretionary power. " On that occasion, the applicant had legal duty to account for each day of delay. The principle has not been changed to my knowledge and Mr. Malamba did not attempt to prove otherwise apart from his mere assertion from the bar. >€33^ 8 For the determination above, this court is of the finding that there is no sufficient reason for extension of time adduced by the applicant. Therefore, this application has no merit it is dismissed for that. No order as to costs. M. P. OPIYO,

JUDGE 16/ 06/2023 9