MWANAHAMISI HUSSEIN MTWETA v

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 12110 OF 2024 (Arising from Award issued on 15/4/2024 by Hon. P. Nyagaya, Arbitrator in Labour Dispute No. CMA/DSM/KIN/670/2023) MWANAHAMISI HUSSEIN MTWETA .……..…..……….. APPLICANT VERSUS ALISAAR INDUSTRY COM. LIMITED ...................... RESPONDENT JUDGMENT Date of Last Order: 09/07/2024 Date of Judgment: 16/07/2024 B.E.K. Mganga, J. On 22nd November 2023, Mwanahamisi Hussein Mtweta, the abovenamed applicant filed labour complaint No. CMA/DSM/KIN/670/2023 before the Commission for Mediation and Arbitration(CMA) at Kinondoni against Alisaar Industry Co. Ltd, the abovenamed respondent. In the referral form (CMA F1) applicant indicated that the dispute arose on 16th October 2023. She further indicated that she was claiming to be paid, (i) TZS 660,000/= being salaries from October to December 2020, (ii) TZS 2,640,000/= being salaries from January to December 2021, (iii) TZS 2,640,000/= being salaries from January to December 2022, (iv) TZS 2,200,000/= being 1 salaries from January 2023 to October 2023, (v) TZS 220,000/= being one month salary as leave pay and (vi) TZS 220,000/= being one month salary in lieu of notice all amounting to TZS 9,053,846. Together with the said CMA F1, applicant also filed application for condonation form (CMA F2) indicating that she was later for one day. On 20th November 2023, applicant filed her affidavit in support of the application for condonation in which she only gave facts that led to termination of her employment. On 19th December 2023, Halima Hamid Kijuwile, filed the counter affidavit opposing the application for condonation filed by the applicant but only giving justifications for termination of applicant’s employment. Having heard submissions of the parties on application for condonation, on 15th April2024, Hon. Nyagaya, P, Arbitrator, delivered the ruling dismissing the application for condonation on ground that applicant did not adduce good reason for the delay warranting grant of condonation. Applicant was aggrieved by the said ruling hence this application for revision. In the affidavit ins support of the application, applicant raised six (6) grounds to be determined as hereunder :- 1. That, the honourable arbitrator erred in law and facts by deciding that there was no sufficient ground and reason for granting extension without considering the fact that the applicant was pursuing dispute before labour commission. 2 2. That, the honourable arbitrator erred in law and facts for failure to consider ground for condonation adduced on rule 11(3) of G.N. 64 (sic). 3. That, the honourable arbitrator erred in law and facts for failure to analyze evidence of the applicant and failure to recognize that applicant was given notice of termination on 8th October 2023. 4. The arbitrator erred in facts and law when she arrived at the conclusion that applicant has no legal reason. 5. Arbitrator erred in law and facts in issuing illogical and contradictory award, therefore worth to be revised and set aside by this court. 6. That the applicant has overwhelm chance of success if the application is granted. Respondent filed the counter affidavit affirmed by Halima Hamidu Kijuwile to oppose this application. When the application was called on for hearing, Mr. Saulo Kusakallah, advocate appeared and argued for and on behalf of the applicant while Mr. Paulo Mtui, Advocate appeared and argued for and on behalf of the respondent. At the time of hearing, Mr. Kusakallah abandoned the 3rd to 6th grounds and argued only the 1st and the 2nd grounds. Arguing the 1st ground, counsel for the applicant submitted that on 16th October 2023 respondent terminated employment of the applicant and that applicant was served with termination letter on 18th October 2023. He went on that, on 15th November 2023 the Labour officer issued a summon to be served to the respondent so that the latter can appear before the labour officer on 17th November 2023. He added that, after respondent's refusal 3 to appear before the labour officer, on 20th November 2023 applicant filed the dispute at CMA while already out of time for two (2) days. In his submissions, counsel conceded that in her affidavit in support of condonation, applicant did not state that she referred the dispute to the labour officer. Arguing the 2nd ground counsel for the applicant submitted that, the arbitrator did not consider the Rule 11(3) of the Labour Institutions (Mediation and Arbitration) Rules, GN. NO. 64 of 2007 in deciding the application for condonation filed by the applicant. Counsel submitted further that, the arbitrator did not consider the degree of lateness namely 2 days only that applicant was out of time and possibility of success of the applicant's case because respondent did not state that she adhered to termination procedures. In convincing the court that the application is merited, counsel for the applicant submitted that applicant is a lay person who does not know legal procedures. With those submissions, Mr. Kusakallah prayed that the application be allowed. Resisting the application, Mr. Mtui, counsel for the respondent argued the application generally. Mr. Mtui submitted that, respondent has never terminated employment of the applicant, but the contract expired automatically. In his submissions counsel for the respondent conceded that, in CMA F1, applicant indicated that the nature of dispute is unfair 4 termination and that, in the counter affidavit that was filed at CMA, respondent did not attach the contract showing the date it expired. He also submitted that applicant did not adduce sufficient reason for condonation to be granted. He added that, applicant did not account for the delay. Counsel concluded that, Arbitrator considered reasons for the delay hence the decision for not granting condonation was properly reached and prayed that the application be dismissed for want of merit. It is a cardinal principle that grant or refusal to grant extension of time is at the discretion of the court. Discretion cannot be exercised arbitrary. Discretion must be exercised judiciously. Discretion to be exercised judiciously, there must be sufficient reason and or relevant material and circumstances on which the court can base its decision. There is a litany of case laws to that position. See the case of Mza Rtc Trading Company Limited vs Export Trading Company Limited (Civil Application No. 12 of 2015) [2016] TZCA 12 (27 October 2016), Victoria Real Estate Development Ltd vs Tanzania Investment Bank & Others (Civil Application 225 of 2014) [2015] TZCA 354, Rose Irene Mbwete vs Phoebe Martin Kyomo (Civil Application 70 of 2019) [2023] TZCA 111, and Omary Shaban Nyambu vs Dodoma Water & Sewarage Authority (Civil Application 146 of 2016) [2016] TZCA 892, to mention but a few. 5 The issue in the application at hand is whether, applicant has adduced sufficient reason for the delay or provided relevant materials and circumstances justifying the grant of condonation at CMA for this application to be allowed. I have read the affidavit that was affirmed by the applicant on 20th November 2023 before Clara Madaraka, Advocate, Notary public and commissioner for Oaths and find that she said nothing relating to reason for the delay. The said eight paragraphed affidavit, though titled as an affidavit supporting condonation, had nothing to with condonation. I say so because in paragraph 1 and 2 applicant pointed out the date of her employment and in paragraph 3, she indicated that she was claiming salaries for October to December 2020. In paragraph 4 she stated that on 19th January 2021 there was a dispute between the director of the respondent and the owner of the building as a result all employees were told to go out of work. In paragraph 5 applicant stated that, on 28th February 2021 she was permitted by the director of the respondent to go to hospital for checkup and it was revealed that she was pregnant and that it was advised that she should perform light duties. In paragraph 6 applicant stated that, on 13th January 2022 by operation, she delivered her child and stayed in hospital for six months. She also stated that, after getting well she contacted the respondent through 6 Halima, the secretary of the respondent so that she can be paid her salaries. In paragraph 7 applicant stated that, on 16th October 2023 respondent terminated her employment. In paragraph 8 which is the last paragraph, applicant stated that she was praying to be paid all salaries and her terminal benefits. What I have pointed out shortly hereinabove tells all. It should be recalled that in CMA F1, applicant indicated that the dispute was relating to unfair termination and that the same occurred on 16th October 2023. Therefore, all what was stated by the applicant in the said affidavit prior to 16th October 2023 was irrelevant. In other words, paragraphs 1 to 6 have nothing to do with the application for condonation. Again, paragraph 8 relating to prayer has also nothing to do with application for condonation. The only paragraph seemingly to be relevant is paragraph 7 as it was just laying a foundation as to when the dispute arose. Unfortunately to the applicant, nothing tangible was added in her affidavit to justify the grant of condonation. It is my firm view that the arbitrator was right to dismiss the application for condonation for lack of reasons or relevant material or circumstances to justify grant of condonation. My conclusion is fortified by what was held by the Court of Appeal in the case of Sebastian Deogratius Kajula vs Simon 7 Group/Shamba Africa (Civil Appeal No. 160 of 2021) [2024] TZCA 83 (22 February 2024) wherein it was held inter-alia that:- “Equally important to observe here, is the settled and undisturbed position of the law for which we need not cite any supporting authority, that, a party seeking condonation is saddled with a duty to make out a case entitling it to the court's indulgence. For, otherwise, it must be trite that condonation cannot be given on a silver plate. Put in other words, a party seeking condonation is required to give a reasonable and acceptable explanation for non-compliance with the rules and the law prescribing specific timelines within which a party to a labour dispute should take the necessary legal steps.” The quoted holding of the Court of Appeal has nailed it to the fullest. That is all. It was submitted by counsel for the applicant that applicant is a layperson who doesn’t know procedures. With due respect to counsel for the applicant. Ignorance of law has never been a ground for extension of time. See the case of Ngao Godwin Losero vs Julius Mwarabu (Civil Application No.10 of 2015) [2016] TZCA 2099 (18 October 2016), Wambele Mtumwa Shahame vs Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018), and Hadija Adam vs Godbless Tumba (Civil Application No. 14 of 2013) [2014] TZCA 171 8 (28 October 2014). I therefore find that, that submissions relating to ignorance of the law or procedures by the applicant is devoid of merit. For all what I have explained hereinabove, I find that this application lacks merit and dismiss it. Dated at Dar es Salaam on this 16th July 2024 B. E. K. Mganga JUDGE Judgement delivered on 16th July 2024 in chambers in presence of Mwanahamisi Mtweta, Applicant and Paul Mtui, Advocate for the Respondent. B. E. K. Mganga JUDGE 9