REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA REVISION NO. 68 OF 2023 (Originating from Labour Dispute No. CMA/ARS/ARS/75/22 at the Commission for Mediation and Arbitration for Arusha at Arusha) NASRA ISMAIL MFINANGA....................................................... APPLICANT VERSUS NASIKIA TANZANIA LIMITED................................................ RESPONDENT RULING 3/07/2024 & 31/07/2024 NDUMBARO, J Sometimes on March 2022, the applicant filed a dispute at the Commission for Mediation and Arbitration for the claim of unfair termination. Unfortunately, before the complaint was heard on merit, the respondent raised a preliminary objection that the complaint is time- barred contrary to rule 10 (2) of the Labour Institution (Mediation and Arbitration) Rules 2007 G.N No. 64 of 2007. In its ruling, the complaint was found to be incompetent for being filed out of time without seeking condonation first. On the premises, the complaint was struck out. Still persistent in pursuing her rights, on 8th November 2022, the applicant filed another complaint at the Commission, but this time, the complaint was accompanied with an application for condonation. The Commission had to determine the condonation first before going into the merit of the dispute. Unluckily, the application for condonation was dismissed for lack of sufficient cause to warrant the Commission to extend time. Aggrieved by the decision of the Commission, the applicant has filed this application calling this court to examine the records, proceedings, and the award of the Commission so as to satisfy the legality and propriety of the findings of the Commission on the following grounds; 1. That the Mediator/arbitrator erred in law and in fact by holding that the applicant failed to demonstrate that she was in corridors of the Commission and attending her sick mother for a period of more than four years from 02nd January 2018 to March 2022 without taking into consideration the fact that the respondent's breach of the employment laws was continuous in the sense that although it kept the applicant out of employment from 2nd January 2018 but continued to recognize her employment by payment of her salaries up to May 2022 without giving the applicant the right to be heard. 2 2. That the Mediator/Arbitrator erred in law and in fact by holding as he did without taking into consideration the glaring illegalities committed by the respondent such as the denial of the applicant's right to be heard before keeping her out of employment, the denial of the applicant's right to work, indefinite suspension from employment without reasons and without the right to be heard including other illegalities which are sufficient causes justifying the grant of the applicant's application for condonation. The applicant's application was also supported by her affirmed affidavit, where among others, the applicant stated that employment relationship with her employer turned sour since 1st December 2017 after the demise of her brother whom she contended to have recruited her. The applicant went further to state that, the respondent herein created intolerable working conditions in order to compel her to resign from her employment. However, the applicant also stated that despite the fact that she was on an indefinite suspension, yet the respondent kept on paying her monthly salary up to May 2022. In the interest of justice, the applicant urged this court to grant this application. Responding to the applicant's application, the respondent opposed the application through the sworn affidavit of one Rick Lucas Thomas, the Director of the respondent who maintained that the applicant herein failed to advance sufficient cause for the Commission to grant condonation on the reason that she alleged to have been terminated in the year 2018 but filed her dispute to the Commission in the year 2022. With regard to the issue that the respondent kept on paying the applicant salaries, the respondent stated that this is a new fact and the same was not raised at the Commission and even the bank statement which has been attached to her affidavit was not part of the list of documents relied by the applicant at the Commission. The respondent thus prayed for this court to dismiss the application. When the matter was called on for hearing, the applicant appeared in person unrepresented, on the other hand, the respondent was under the legal representation of Mr. Pendael Pedro Munis. With leave of the court, the application was disposed by way of written submissions which shall be summarized hereunder; On the first ground of this application, the applicant submitted that the breach of her employment contract by the respondent was continuous as she was kept out of the office without being given the right to be heard. Moreover, the applicant argued that, despite the fact that she was kept out of her office but yet, the respondent kept on recognizing her employment by paying her monthly salaries up to May 2022. The applicant went further to state that apart from the salaries paid to her, on 19th April 2022 the respondent wrote a letter to her titled "Notice on intention to terminate employment contract by way of mutual agreement." Another letter was written to her by the respondent on 17th March 2022 titled "Request for a Meeting." The applicant went on submitting that with all this evidence the Commission erred by holding that the applicant failed to show good cause for condonation. On the second ground, it is the submission of the applicant that at paragraph 12 of the applicant's affidavit, she stated several illegalities which were committed by the respondent. It is her further argument that the Commission erred in dismissing the applicant's application for condonation without taking into consideration the serious illegalities committed by the respondent. According to her, the illegalities committed by the respondent in terminating her employment constitute a very sufficient cause for an extension of time. The applicant supported her argument with the decisions of this court in the cases of Arunaben Chaggan Mistry v Naushad Mohamed Hussein & 3 others, Civil Application No. 6 of 2016, and Joseph Paul Kyauka Njau & another 5 vs Emmanuel Paul Kyauka Njau & another, Civil Application No. 7/5/2016. Responding to the above submission, the respondent commenced his submission by taking us to the reasons for the delay advanced by the applicant at the Commission. The learned counsel informed this court that, at the Commission, the applicant stated the reasons for her delay were; the sickness of her mother whom she was taking care of, and second, false promises by the employer/respondent. The counsel went on to state that the decision of the Commission in dismissing the condonation centered on the failure by the applicant to show good cause for the delay based on the above grounds. That being the case, it was his submission that even this application requires the applicant to challenge the decision of the Commission based on the above grounds. The learned counsel also notified this court on the fact that the applicant in this application raised a new fact which was nor discussed at the Commission. It was therefore his prayer that the said paragraph which introduced a new fact to be disregarded by this court. The above said, the learned counsel went on to submit on the issue of illegalities. It was the submission of the learned counsel that the alleged illegality claimed by the applicant is on the right to be heard by the respondent. The counsel went on to state that for illegality to be a ground for extension of time should be rooted from the court's decision or from the acts of the employer, the answer is found in the cases cited by the applicant. Mr Munisi argued further that, in the cited cases by the applicant, the illegalities alleged were committed by the court and not the parties, and therefore it was his stand that the cases cited by the applicant do not support his arguments because the illegality claims was not committed by the court as she contended that she was denied the right to be heard by the respondent. In that regard, it was his submission that the illegality alleged by the applicant cannot suffice to be a good ground for an extension of time. Expounding further on the above ground of illegalities, Mr. Munis cited the case of Lyamuya Construction Company Limited vs The Board of the Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No 2 of 2010 which established factors to be considered by the court when exercising its discretion in determining applications for extension of time. The counsel argued that, in this case illegality was considered as sufficient reason for the delay, whoever, it was the decision of the court that was tainted with illegalities and not the parties. Therefore since there is no any decision of the court which is tainted with illegalities in this case, it cannot constitute a good reason for the extension of time. That said, the counsel also submitted on the issue of accounting the days of delay. It was his argument that the applicant was required to account for each day of delay from January 2018 to the time she filed her complaint to the Commission. However, since the applicant failed to explain the inordinate delay, it was his submission that this application to be dismissed. On the issue that the applicant was attending her sick mother, it is the submission of the counsel that, the applicant did not give any proof whatsoever on the medical report. The counsel cemented that it is the position of the law that where sickness is used as a ground for extension of time, the applicant must produce concrete evidence to that effect. The counsel prayed for the dismissal of this application. In rejoinder, the applicant maintained that, she is challenging the decision of the Commission. She further stated that she was denied the right to be heard on several aspects which violated the cardinal principle of natural justice. Having considered the records of this application, submissions of both, the applicant and respondent carefully, I find the issue for determination by this court is whether the applicant adduced sufficient cause for his delay to file his complaint at the Commission. It is an established principle in law that, sufficient reason is a pre­ condition for the court to grant an extension of time as per Rule 56(1) of the Labour Court Rules G.N. No. 106 of 2007. Furthermore, it has been the position of the law that an application for an extension of time is entirely in the discretion of the court to grant or refuse. This discretion however has to be exercised judicially and the overriding consideration is that, there must be sufficient cause for doing so. From decided cases a number of factors have to be taken into account, including whether or not the application has been brought promptly; the absence of any or valid explanation for delay; lack of diligence on the part of the applicant, and whether the applicant has accounted for each day of delay. I have diligently gone through the records of the Commission in particular on the affidavit of the applicant. Basically, the applicant's affidavit centered on her complaint on the termination of her employment with the respondent. However, in paragraph 15, the applicant stated that the main ground for condonation is that, she has been in court corridors of the Commission looking for justice through Labour Dispute No. CMA/ARS/ARS/165/2022 which was struck out for being filed out of time. She further stated that she has been illegally subjected to unfair labour practices. At the outset, I wish to make it clear that in applications for an extension of time, the applicant is duty-bound to establish sufficient reasons for his/her delay to warrant the court to grant the relief sought. Moreover, in determining applications for an extension of time, the court is restricted from determining the merit of the main suit/complaint. Therefore, from what I have gathered in paragraphs 1 to 14 of the applicant's affidavit I wish to state that the issue of whether she was unfairly terminated or subjected to unfair labour practices will be next for determination after condonation has been granted and shall not form part of my findings. As submitted by the respondent's counsel, I have also noted that the applicant in this application has brought a new fact on the payment of salaries up to May 2022 the fact which was not featured in her application for condonation. It should be remembered that it has been the position of the law that parties are bound by their own pleadings 10 and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. Moreover, the court also is bound by the pleadings of the parties as they are themselves. See the decision of the Court of Appeal of Tanzania in the case of Maria Amandus Kavishe vs Norah Waziri Mzeru & another, Civil Appeal No. 365 of 2019 CAT at Dar es Salaam Reported Tanzlii. In that regard, my finding in this application will be directed only on matters that were pleaded by the parties at the Commission. That said I now turn to discuss whether the reasons advanced by the applicant were sufficient to grant the relief she sought. My understanding of paragraph 15 is that the applicant's delay was a result of her being in the corridors of the Commission. With due respect, I do not find this to be a sufficient reason enough to grant condonation for the following reason. It is true that the applicant had earlier on filed a labour dispute at the Commission CMA/ARS/ARS/165/2022 however the same was struck out for being filed at the Commission out of time. This itself shows that at the time the applicant was filing the first complaint she was already out of time and therefore it is clear that she cannot come at this stage to plead that she is late because she has been in the corridors of the Commission. li I am aware of the position of the law that there is a distinction between actual delays and technical delays. Perhaps the applicant is looking for a way to salvage herself by saying that her delay was a technical delay. Unfortunately, this is not the case because, in technical delays, the initial complaint or suit must have been filed within time and the same is later struck out for being incompetent. See the case of Fortunatus Masha vs Wiliam Shija & another [1997] TLR 154. In paragraph 6 of the applicant's affidavit, it is established that the dispute between the applicant and the respondent arose in December 2017. On the other hand, the first complaint was filed at the Commission by the applicant in March 2022 and following it being struck out, the second complaint was again lodged to the Commission in November 2022. From its outlook, the applicant was already out of time for more than four (4) years. As it has been the position of the law that in applications for an extension of time, the applicant has to account for every day of delay. See the case of Sebastian Ndaula vs Grace Rwamafe, Civil Application No. 4 of 2014 (Reported Tanzlii). Therefore, since the applicant has not given an account of the days of delay from 2017 December to November 2022 I am justified to hold that the days of delay were not sufficiently accounted. 12 I have also gone through the complaint, the applicant stated that the delay was also caused by the sickness of her mother whom she was taking care of. It is very unfortunate that the claim was not backed up with any evidence. I am aware that sickness can be a sufficient reason for extension of time but the same must be sufficiently proved. See the decision of this court in the case of Genuine Company Limited vs Julian Eirehema Mabinga, Misc. Labour Application No. 54 of 2021 (Reported Tanzlii). In the absence of such proof I hasten to hold that sickness in this case has not been established as a sufficient ground for extension of time. The applicant also alleges another reason that there were false promises by the respondent. On this issue, the court has already made it clear that fruitless promises by an employer cannot be featured as a sufficient reason for the extension of time. In the case of Julius Kamote and 139 others vs Tanzania Pipelines Co. Ltd, Labour Revision No. 317 of 2015 (High Court Labour Division at Dar es Salaam) it was held that; "If the plaintiff sues after the expiry o f time, w iii be barred even where the defendant has betrayed him into permitting the time to elapse on fruitless negotiation. That, negotiations between the parties 13 cannot defeat the statutes, and the plaintiff who is negotiating should nevertheless file a su it" That being said, I also find no merit on this reason as the applicant had all the ample time to lodge her complaint to the Commission despite the ongoing promises she received from her employer. I now turn to the last reason where the applicant alleges that there are illegalities. The applicant went further to expound the said illegality that she was denied the right to be heard by the respondent. Well, illegality has been a sufficient reason for the extension of time, and in all the cases where illegality was considered as a sufficient reason for the extension of time, the said illegality was explained, and above all, it was apparent on the face of the record. See the case of Finca (T) Limited & another vs Boniface Mwalukisa, Civil Application No. 589/12/2018 CAT at Iringa (Reported Tanzlii). In the instant case, I am of the view that the alleged illegality is not apparent on the face of the record for the following reason; up to the time the applicant was filling her complaint to the Commission the records show that the applicant was yet to be terminated by the respondent as there was no termination letter issued to her nor is there any disciplinary 14 hearing proceedings showing that she was condemned unheard. In the premises, it is the view of this court that the alleged illegality is not apparent on the face of the record as there is no any record showing that she was terminated without being given her right to be heard. The above said, this court is fully satisfied that the reasons advanced by the applicant at the Commission were not sufficient to warrant the Commission to grant condonation. Consequently, I find no merit in this application and I hereby proceed to dismiss it with no order as to costs. It is so ordered. D. D. JARO JUDGE 31/07/2024 15