nocodemes kajungu others vs bulyahulu gold mine t limited 2008 tzhc 263 18 march 2008

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM IN THE MATTER OF THE APPLICATION NO. 2 OF 2008 BETWEEN NOCODEMES KAJUNGU AND 1374 OTHERS - APPLICANTS AND BULYAHULU GOLD MINE (T) LIMITED - RESPONDENT RULING SAMBO, J* The applicants, Nocodemes Kajungu and 1374 others, through their learned counsel Mr. Nassoro from the Law and Justice Advocates Chambers, preferred the present application praying for orders that this honourable court may be pleased to grant an extension of time in which to file a statement of complaint. This application is supported by. an affidavit of the said learned counsel for the applicants. The respondents Bulyamhulu Gold Mine Limited, through their learned counsel Mr. Mwandambo of the Rex Attorneys, strongly objected the application and filed a counter affidavit of one Godson Kiliza. The applicants through the said learned counsel filed a reply to the counter affidavit. l When the application came for hearing, the learned counsel for the applicants informed the court in his oral submissions that this application is filed under Rules 3(1), 24(11) and 56(1) both of the Labour Court. Rules, 2007 G.N. No. 106 of 18th May, 2007. He further went on saying that when a letter of the Director of the Commission for Mediation and Arbitration (CMA) ref. No, CMA/DSM/KIN-ILA/772/03 dated 4th December, 2007, referring the dispute to this court was written, the said learned counsel was on his .usual leave, a factor which prevented him to file the statement of complaint within the required fourteen (14) days. He therefore prays that this honourable court invoke its powers provided under Rule 56(1) of the Labour Court Rules, 2007, and extend time in which to file the statement of complaint, in order to.do justice to both sides to the dispute as stated in paragraph five of the affidavit supporting the application. He maintained.that leave is a statutoiy right to any employee and that being on leave in December, 2007, should not be taken to be negligence on his part as is clearly stated in the counter affidavit. He therefore, humbly prayed that their application be granted accordingly. ' On the other part, the learned counsel Mr. Mwandambo vehemently opposed the application and started his reasoned submissions by saying that Rules 3(1) and 24(11) of the Labour Court Rules, 2007, approvingly quoted by the 2 learned counsel for the applicants, does not give to this honourable court power to extend time in which to file the said statement of complaint. Rules 3(1) states clearly that this, court shall be a. court of - record, law, equity and. mediation.- He went on saying that' if his learned friend wanted to maintain that this is a court of equity, then he who goes to equity must go there with clean hands, and the learned counsel for the applicants doesn't have clean hands for equity to save.him. The learned counsel for the respondent is of the view that the reasons advanced by his learned friend as a ground for the prayer are not satisfactory in respect of Rule 56(1) of the Labour Court Rules, 2007. In the affidavit supporting the application,, particularly the 3r.d paragraph, the. learned, counsel doesn’t state categorically when infact did the Secretary General of the applicants' Trade Union passed to the Director of CMA and collected the letter referring the dispute to this honourable court..The court does not get a. clear picture as to when the letter was collected, and what's averred by the learned counsel is just hearsay and the court can't act upon.them.. .. The advocate, Mr. Mwandambo, submitted further to the effect that despite his learned friend for the applicants stating that in December, 2007, when the referral letter was 3 taken to his office, he was on leave, he doesn't say when and by whom the same was taken to his office. However, he noted further that the legal chamber of his learned friend Mr. Nassoro have more than one advocate, which .means other learned counsels could have dealt with the matter in his absence. Not only that but the learned advocate states further that even the chamber clerk .who received it had all the possibilities of informing him about the referral letter whose response is required within 14 days. He's also of the opinion that the December vacation, for Judges does not extend to the learned advocates, and therefore his leave between 5th December, 2007, to 10th January, 2008, should not be considered. He’s of the considered view that there was negligence on the part of the applicants and their learned counsel. The counsel referred ,the court to the case of R.V. Yona Kaponda [1985] IMr.Ri. 84, in which the court maintained that, in granting applications for extension of time, the court must consider whether or not there are sufficient reasons, not. only, for delay but also . sufficient reasons for extending the time in which to entertain the application. Concluding * that the applicants have not advanced, sufficient reasons for the delay, he prays that the application be dismissed with costs. In response, the learned counsel for the applicants insisted that apart from looking at the law, this court 4 considers equity and its guidelines, and that’s why it’s not strictly bound by legal technicalities. He further stated that having no sufficient' reason, does not mean having dirty hands when going to equity. The learned counsel, insisted that even if his legal firm has more than one advocate, he’s the one conducting the case and therefore conversant with its facts. On the cited case of R.V. Yona Kaponda, Supra, the learned counsel submitted to the effect that unlike what his learned friend stated, the case did hot define sufficient reasons in the very narrow way. He concluded by saying they have advanced sufficient reasons and therefore prayed that their application be granted as prayed. At this juncture, I have heard both the learned counsel for the applicants, Mr. Nassoro, and the learned counsel for the respondent, Mr. Mwandambo. In essence, Mr. Nassoro have submitted in court to the effect that he delayed to file • the statement of complaint'because he was on leave as from 5th December, 2007 to 10th January, .2008. The Director of the Commission (CMA) wrote the referral letter on 4th December, 2007, and the same was filed in court on the- same date and the Registrar acted upon it on the same day directing that the complainants do file LCF No. 1 accordingly. Rule 6(2)(a) of the Labour Court Rules, 2007, provide that:- "6(2) Subject to the provisions of subsection (6) of Section 18 of the Act, where the matter is a referral by the Director of the Commission- (a) the party referring the dispute to the Director shall file a statement of complaint within fifteen days from the date which the Director notified the party of the referral of the dispute.to the court;” (emphasis added). This means the. complainants were mandatorily to file the statement of complaint within fifteen days from the 4th day of December, 2007, but they did not. The learned counsel for the applicants says he failed .to file the same because he was on usual leave as from the 5th day of December, -2007, to lO#1 January, 2008. Neither in the affidavit supporting the application'nor in the reply to the counter affidavit, does the learned counsel for the applicants state that they were lately notified of the referral by the Director of .the Commission (CMA).. Even i n . his oral submission here in court, the learned counsel did not attempt to state that they were lately notified of the referral- by the Director of CM A. For this reason, I believe they were notified by the Director of CMA within the required time. The learned counsel for the applicants stated clearly that he was on usual leave from 5th December, 2007, to 10th 6 January, 2008 during which even their Lordships, the Judges of the High Court do go on leave. I am of the considered opinion that the learned counsel was referring to -the vacation of the.court.which starts in December for each year. But, according to the Courts Vacations Rules, G.N. No. 307 of 1964, Rule No. 2 provide thus:- . “2. The vacations to be observed in the High. Court shall be- (a) from the fifteenth. day of December, to the thirty first day of January, inclusive; and” (b).......... .....(not relevant). Here we learn that the usual, leave which the learned counsel for the applicants is referring to, begins on the 15th day of December, for each year, but he alleges, to have started his. leave on the 5th day of December, 2007, ten days before the usual leave or vacation .of the court; Be it as it may, the learned counsel have not attached any document to .establish beyond any doubt that he was infact on leave from 5th December, 2007, though the usual vacation of the court was not yet. 7 Now, under Rule 56(1) of the Labour Court Rules, 2007, the court may extend time limit on application and on good cause being shown. Can we safely say the act of the counsel for the applicants going on leave as from the 5th day of 7 December, 2007, a good cause? On the first place as we have stated herein above, there’s no document in court to establish that the learned counsel was really on leave at that time. .The learned counsel is referring to. his leave .as the usual leave, but we have shown that the - court vacation begins on the 15th day of December each year, during which most learned Judges of the High Court and learned counsels do go on leave, but he alleges to have started his leave on 5th December, 2007. The learned counsel for the respondent, Mr. Mwandambo have submitted here in court that the legal firm of the counsel for the applicants, Law and Justice Advocates Chambers, has more than one learned advocates and that even if we presume that he was really on leave, then the clerk of the chamber who received the referral letter and or LCF I from; the Trade Union of the applicants could have communicated to him even by cell'phone or otherwise, and appropriate actions taken. Not only these,, but even the Senior Counsel of the said legal firm could certainly be informed and make'necessary direction in order to file the statement of complaint within the mandatory time. It seems, they did nothing, which indicate a clear negligence on their part and proving that they did not take serious this matter. The observations of Mr. Godson Kiliza in his counter affidavit which was orally stated as well by the learned counsel Mr. 8 Mwamdambo, to the effect that the reasons advanced to justify the delay in filing the complaint exhibit negligence and/or inaction in filing the complaint within the time prescribed by the law are valid in all aspects. In the light of the decision of the Court of Appeal of Tanzania in the cited case of Republic V. Yona Kaponda and 9 others [1985] T.L.R. 84, I am of the considered view that the applicants have not set out good reasons for the delay. I am in total agreement .with the learned counsel for ithe applicants that under Rule 3(1) of the Labour Court Rules, 2007, this court is a court of equity, and does not adhere to strict adherence to legal technicalities. But the principles of equity and not paying strict adherence to legal technicalities cannot be allowed to save the negligence and or inaction of the parties and their learned counsel from- complying with the mandatory provisions of the law. Principles; of equity and not strictly adhering 't o the legal technicalities ‘ do' apply where the. applicants, .and,. their learned counsels have nothing to blame on the delay, and not otherwise. In the final analysis, I do share views with the reasoned submissions of the learned counsel for the respondent that the applicants have not advanced sufficient and good reasons to justify the delay. For this reason, I dismiss the application in its entirety and make no orders as to costs 9 because the proceedings did not appear to be frivolous or vexatious. 0. -V v v C [.M.M. Sambo, Judge 18/03/2008 Right of Appeal explained. K.M.M. Sambo, Judge _ 18/03/2008 Delivered in chambers this 18th day of March, 2008, in the presence of 23 applicants and their learned, counsel Mr, Nassor, and. Mrs. Bade, assisted by Mr* Yusuf for the respondent. . . .........., ^ K.M.M. Sambo, Judge 18/03/2008