MISCELANEOUS APPLICATION NO 25527 OF 2023 MURO INVSTMENT COMPANY LTD VS ELEUTERY ELEUTERY MASSAWE AND39OTHRS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELANEOUS APPLICATION NO. 25527 OF 2023 CASE REFERENCE NO. 20231115000025527 BETWEEN MURO INVESTMENT COMPANY LIMITED................. .............. APPLICANT VERSUS ELEUTERY ELEUTERY MASSAWE................................ 1st RESPONDENT ARAFA MCHARAZO................ ..................... ...................2nd RESPONENT FRED NGUNDA...................... ...................................... 3rd RESPONDENT GRORY TITTO EMANUEL............................ ............ . 4th RESPONDENT SAID MUSSA MTATIFIKOLO........................................... 5th RESPONDENT VAVAE MOLLEL...................... ................... .................. 6th RESPONDENT COSTA ANDREW WISA..................... .......................... 7th RESPONDENT PAULO NJIKO.............................................................. 8th RESPONDENT BOSCO SHANA............................................................ 9th RESPONDENT HASHIMU NDOILE.................... ............. .................... 10th RESPONDENT ALEX LEMA......................... ..................................................................... 11th RESP NIMROD LEMA............................................. ........... 12™ RESPONDENT WITNESS LEMA.......................................................... 13th RESPONDENT HUMFREY LEMA.......................................... ...............14th RESPONDENT ALLY MSHUZA............................................................15th RESPONDENT FEROUZ MGUNA........................ ................ ................16th RESPONDENT EMANUEL SIKWESE......................................... ........ 17th RESPONDENT EDWARD NGATUNGA.................... ........... ....... . 18™ RESPONDENT HANIFA SHOMARI................ ..................................... 19™ RESPONDENT SAMSON MGUTU ..................... ................................... 20™ RESPONDENT WAREMA SIRI.................................. ..................... . 21st RESPONDENT HARUNA KIPONZA.................... ................................. 22nd RESPONDENT RASHID MPONDA ................ ............... .......... ............... 23rd RESPONENT MSHAMU KILINDO ............. ........................................ 24™ RESPONDENT ABUBAKARY MUSA......... ............................... ..........25™ RESPONDENT ELIASI NDOSI ...................... ............................. ...... 26™ RESPONDENT BIBIANA MWITA ............................................. ..........27™ RESPONDENT EMANUEL MLUGU.......... ................................ ..........28™ RESPONDENT EDSON MREMA........... ...................... .......... ..... ...... 29™ RESPONDENT ZUHURA HISA ................ ...................... ......... ..........30™ RESPONDENT TUNU MGENI............................... ............................ 31st RESPONDENT NEEMA IBRAHIM.................................... .................... 32nd RESPONENT ANETH ATANAS .................... ......... ........ ......... ........ 33rd RESPONDENT 3UDITH MMASI.. 34™ RESPONDENT RICHARD MVULE 35th RESPONDENT MICHAEL MAHENGE 36th RESPONDENT MAULID HASSAN 37th RESPONDENT KASSIM AMIRY.. 38™ RESPONDENT GEORGE MAGANGA 39™ RESPONDENT VICTORY MWASE ... 40th RESPONDENT RULING Date of last Order: 12/ 04/2024 Date of Ruling: 10/ 05/2024 MLYAMBINA, J. In the present application the Court is called upon to grant an extension of time for the Applicant to file revision application against the decision of the Commission for Mediation (herein CMA) which was delivered on 23/08/2023 by Hon. Mikidadi A, Arbitrator in Labour Dispute No. CMA/DSM/TEM/447/2019/19/2020. The application proceeded by way of written submissions. Before the Court, the Applicant was represented by Mr. William Yohana Fungo, learned Counsel. On the other hand, the Respondents appeared in person. I appreciate the submissions of both parties in this application which shall be taken on board in due course of constructing this ruling. As the matter is for extension of time as stated herein above, I find the Court is called upon to determine; whether the Applicant adduced sufficient reason for the grant o f the application at hand. Before going to the merit of the application, I have noted the Applicant's concern that the Respondent's notice of representation is defective for being signed by the first Respondent instead of Advocate Emmanuel Hando, the Respondent's representative. This contention should not detain me as it has long been determined in numerous Court decisions. Representation in Labour Court is governed by Section 56 o f the Labour Institutions Act [Cap 300 Revised Edition 2019] (herein LIA) which provides that: In any proceedings before Labour Court, a party to the proceedings may appear in person or be represented by (a) an official of a registered trade union or employer's organization; (b) a personal representative of the party's own choice; or (c) an advocate. Again, the manner of representation in Labour Court is governed by Rule 43(1) o f the Labour Court Rules, GN. No,. 106 o f2007 (herein GN, No. 106 o f 200^ which provides: A representative who acts on behalf of any party in any proceedings shall, by a written notice, advice the Registrar and all other parties of the following particulars- (a) the name of the representative; (b) the postal address and place of employment or business; and any available fax number, e-mail and telephone number. Since the Personal Representative is chosen by the party bringing or opposing the application before the Court, then he/she has to sign the notice of representation. A Representative cannot authorize himself and act on behalf of a party to the proceedings. The representative cannot appoint himself and proceed to notify the Court. Thus, it is the duty of the party to the proceeding to notify the Court the Representative of his/her own choice. Therefore, the notice must be signed by the Applicant or Respondent only and not his/her Representative. This is also the Court's position in the case of Alex Situmbura v. Mohamed Nawayi, Revision Application No. 13 of 2021, High Court, Musoma. Thus, the objection in question lacks merit and is overruled accordingly. The Applicant also contended that the averment's in the Respondents' joint counter affidavit are not true. Such objection should also not detain the Court because it is not based on pure point of law. It lacks merits. Turning to the merit of the application, it was Nr. Fungo's submission that the Applicant accounted for the delay in his affidavit. That after the decision was delivery by the CMA on 23/08/2023, the Applicant timely filed Revision No. 234 of 2023 on 03/10/2023. That the referred application was struck out on 25/10/2023 on the ground of technicality. After the striking out, from 26/10/2023 to 07/11/2023, the Applicant's Counsel fell sick and recovered on 08/11/2023. He stated that, from the date of the recovery to 10/11/2023, the Counsel used such time to prepare documents for filing this application which was filed on 10/11/2023 and registered on 15/11/2023. He stated that he delayed for 21 days which is not an inordinate delay, hence suffice to be granted the present application. In support of his submission, Counsel Fungo cited the case of Patrick Magologozi Mongella v. The Registered Trustees of The Public Service Pensions Fund, Civil Application No. 199/18 of 2018, Court of Appeal of Tanzania, Dar es salaam where it was held that: the Applicant has spent almost 12 days in preparing and filing the application for extension. We are further told under Paragraph 12 of the affidavit that the preparation was completed on Friday the 25th May, 2018. As such the business day resumed on Monday the 28th May, 2018 and the Applicant lodged the application on 30th May, 2018. This means that the Applicant took two days from preparation to the actual filing of the application which I take it to be reasonable time. It was not inordinate In additional to the above stated reason of delay, Mr. Fungo also relied to the ground of illegality in the impugned decision which requires attention and determination of this Court. He stated that the Respondents delayed to file their application at the CMA for about 10 months without accounting for the alleged delay. He therefore urged the Court to grant the application. In response to the application, all Respondents except the 18th argued that the power to grant extension is discretionary vested to the Court as it is the position in the case of Gerald S/O Paul Gedi v. Joseph S/O Lwiza Kasheku, Misc. Civil Application No. 89 of 2021. They submitted that the Applicant admitted there is the delay of 21 total days. That in 12 days the Counsel was sick while the remaining 7 days were used for preparation of the application at hand. The Applicant admitted that sickness is a good ground for extension of time however, the same must be proved. In this case, according to the Respondents, there is no proof of the alleged sickness. They urged the Court to consider the circumstances established in the case of Lyamuya Construction Co. Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 Court of Appeal of Tanzania at Arusha (unreported) in deciding this application. That, the conditions established in the referred decision are not met in this case. This Court's power to grant the application at hand is derived from the provision of Rule 56(1) o f GN. No. 106 o f 2007. The relevant provision is to the effect that: The Court may extend or abridge any period prescribed by these Rules on application and on good cause shown, unless the Court is precluded from doing so by any written law. As rightly argued by the Respondents, the grant of extension of time is in the Court's discretion which has to be exercised judiciously upon good cause shown as it is the requirement in the above cited provision. What amounts to be good cause depends on the circumstance of the case. There is no single definition as to what good cause entails. In range of decisions, the Court set factors to be considered in measuring good cause for the delay. The factors were also set in the case of John Mosses and 3 Others v. The Republic, Criminal Appeal No. 145 of 2006, Court of Appeal when quoting the position of that Court in the case of Elias Msonde v. The Republic, Criminal Appeal No. 93 of 2005 where Mandia J.A held that: 7 We need not belabor, the fact that it is now settled law that in application for extension of time to do an act required by law, all that is expected by the Applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part. Furthermore, in the case of Lyamuya Construction Co. Ltd (supra) the Court stated the following factors to be considered in granting extension of time. The Court held as follows: As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however the following may be formulated: - i.The Applicant must account for all the period of delay. ii. The delay should not be inordinate. iii. The Applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. iv. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. In the application at hand, from the date the Award was delivered, that is on 23/08/2023 to the date when Revision No. 234 o f2023 was 8 struck out on 25/10/2023, the delay is inexcusable. The Applicant failed to account for the delay of the period in question. Out of the delay of 21 days, the Applicant failed to account for the 12 days delay. As rightly contested by the Respondents, the allegation of sick was not proved because there is no any document to substantiate the claim. It is my view that a party applying for extension of time should account each and every factor established in the case of Lyamuya Construction Co. Ltd (supra). In other words, all the factors must be established cumulatively. I have considered the issue of illegality raised. However, I find no relevance because it is not apparent from the record. In the result, it is my findings that the Applicant failed to adduce sufficient reason for the grant of the extension of time sought. Therefore, the application is hereby dismissed for lack of merits. It is so ordered. JUDGE 10/05/2024 Ruling delievered and dated 10th May, 2024 in the presence of Counsel Willium Fungo and the 2nd Respondent alone. Right of appeal explained. JUDGE 10/05/2024