musa kwamba vs mufindi paper mills limited 2020 tzhc 3249 9 october 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT IRINGA REVISION NO. 07 OF 2020 BETWEEN MUSA KWAMBA ..................... A l| C ld A r VERSUS 1 ’Ik MUFINDI PAPER MILLS LIMITED .. J ilff ..... RESPONDENT Date o f Last Order: 30/09/2020 < t|' \ ^ Date o f Ruling: 09/10/2020%\ \ MATOGOLO. J. \ Musa Kivamba w|jjo fi|||Hi|^pplicant in this application was also the applicant in the Mediation and Arbitration (CMA) of Mufindi in Labour ^N^W11^ ^ ^ ^ 1^ 1^^-39/2020- Dis||ftt^jellipin the Arbitrators award he has brought this application for^yision.^ * AftePbeen served with the application documents, the Respondent Mufindi Paper Mills Limited through her representative Mr. Yusuph Luwumba raised notice of opposition in which he raised two points of objection on point of law as follows:- 1. That, the Application for revision is hopeless time barred. Page | 1 2. That, the counsel for the applicant has no locus standi to prosecute the case. At the hearing of the points of objection the applicant was represented by Prisca Mtanga learned advocate while the Respondent was represented by Mr. Watson Peter Kimbe learned advocate The preliminary objection was argued orally. Mr. Watson Kimbe decided to abandon seco|j|'point of Bbjection, he thus argued first point of objection. He s a il theNjgplicant filed this ''ii.. '^ii. application out of time without leave for ^ tefw ioflipf time. He said it is apparent from the record that t h p ^ f t o the parties on 17th March, 2020. The presentiapplicaWn A as filed on 15th May, 2020, li 1' after eight weeks and two davs. ::- I He submitted that '%c(lto 91(l)(a) of the Employment and Labour Relations Act, No. w p ’. 366 R.E. 2019], requires the application for revisioj^ to be |j|d v^lim six weeks from the date of the ruling of the CMA was s l^ d ^ ^ lf1^ parties. The applicant was supposed to file his ap^licatioj(f!\!^ih{|!x weeks from the date he received the CMA ruling and not%ter. since the applicant decided to file this application eight V |«> weeks aff|ffrthe CMA award there is no doubt that the same was filed out of time and this court has no jurisdiction to determine it. He said the question of limitation of time is fundamental issue involving jurisdiction of the court. The time limitation is there to ensure that parties does not come to court when and how they do wish. It is the learned advocate submission Page | 2 that this court has no power to determine this application as it is time barred. The only remedy is for it to be dismissed. He therefore prayed for the application to be dismissed. On her part Prisca Mtanga learned advocate for the applicant admitted that the decision by the CMA was delivered on 17th March, 2020. But the applicant obtained its copy on 8th April, 2020. After obtaining the copy he decided to^jfte tffiaappl^ption which was filed on 15th May, 2020 such that the applcar!i||yas \|§iffin time as only 37 days had elapsed. % (i If i|ji Ms. Prisca Mtanga submitted that thf| a^licaW ri is within time because days are counted from the date d*taart%s Applied with a copy of '''in. !i'h ruling. She therefore prayed for toft pr^jimin^^lfjection to be dismissed. Mr. Watson Kimbe learnecl^|lvoca1jp!ffi his brief rejoinder had it that it is apparent from the recqjjjf’that t f e ’lpplicant was served with the copy of CMA ruling on 17th |^ a t^ ^ 2 0 and resigned on the court record. The argument that he |p ||J^ p liW with that ruling on 8th April, 2020 has no basis. He ther&fore”insistld for the application to be dismissed. al^witjt) the law in question, Section 91(1) of the Employment It l||J ei|$ons Act provides "91(1) Any party to an arbitration award made under Section 88(8) who alleges a defect in any arbitration proceedings under the auspices o f the commission may apply to the Page | 3 Labour Court for a decision to set aside the arbitration award:- (a) Within six weeks o f the date the award was served on the applicant unless the alleged defect involves improper procurement. A j|, ..III1, Ill'l, (b) I f the alleged defect involves$m§^roper^ procurement, within six weeks o f the Slgte that the applicant discover that, ’’iij, According to the Respondent's counse1%uwijssi6n the CMA award V \ N was served on the applicant on 17/03^D2\anfM;he present application t-h if fyi w was filed on 15 January, 2020 jjvnich r^|j)eydjjid six weeks. He said that was prove^ by t^ aj^ licant endorsement on the record on the date the award w^sll|pplied to him. Although Prisca Mtanga in her reply submission sa id ^ e %jpNiof the CMA award was supplied to the applicant on 8th she did not tender any document to show that. Upon^jjjj ^ ^ fe ^ p lth e court record, on the award the applicant has endorsed|fc| to show that he was supplied with the said copy of CI^I||award|nS||i|etV day the award was delivered. What Prisca Mtanga has allegecPiHja|jppplicant was supplied with a copy of an award 8 April, 2020 is not supported by any evidence. If the applicant was supplied with the copy of the CMA award on 17th March, 2020 by filing this application on 15th May, 2020, it is obvious that the same was filed out of time and thus in violation of Section 91(l)(a) of the Employment and Labour Relations Page | 4 Act, No. 6 of 2004. The 1st point of objection has merit the same is sustained. The application is hereby dismissed. It is so ordered. (Hr w F. N. MATOGOLO JUDGE 09/10/2020 09/10/2(10 "k 'V&V// Hon. F. Nj||atog<Ao - Judge ir-fl IP* %ff|lf '* '*■——■**- «» PeteMKimbe Advocate 5 t i, 3 ’eter Kimbe - Advocate: M \ W a* ° % Lo' appearing for the Respondent. I am also holding brief for Prisca MttfSa advocate for the applicant. The application is for ruling I am ready. Page | 5 COURT: Ruling delivered in the absence of the parties but in the presence of Mr. Watson Peter Kimbe learned advocate for the Respondent but who is also holding brief for Prisca Mtanga learned advocate for the applicant. A F. N. MATOGOLQj JUDGE Jf* 4 09/10/20%;% Page | 6