REV NO 29736 OF 2024 PETRO JOSEPH VS STANDARD CHARTERED BANK 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM LABOUR REVISION APPLICATION NO. 29736 OF 2024 (Arising from labour dispute No. CMA/ILA/498/2024) CASE REFERENCE NO. 202411221000029736

BETWEEN PETRO JOSEPH.......................................................................APPLICANT

VERSUS STANDARD CHARTERED B A N K ..........................................RESPONDENT

RULING Date of last Order: 13/02/2025 Date of Ruling: 26/03/2025 MLYAMBINA, J. The application before the Court is for revision of the decision of the Commission for Mediation and Arbitration (herein CMA) dated 19th November, 2024. In that decision, the Applicant's application for condonation was denied on the ground that he failed to account on each day of the delay. Aggrieved by such decision the Applicant filed the present application urging the Court to revise and set aside the CMA's decision and grant the condonation prayed. The application is premised on the following grounds: i. That, the Honourable Arbitrator erred in law and fact for failure to analyze and evaluate the submission by the Applicant hence occasioning into injustices. ii. That, it is in the interest of justice that this Court calls for proceedings and Award of the Commission in Labour Case No. CMNDSM/ILN498/2024for the purpose of revising them. The application was argued by way of written submissions. Arguing for the application, the Applicant was represented by Mr. Emmanuel Marwa, learned Counsel. On the other side, arguing against the application, the Respondent was represented by Mr. Michael Kariwa, leaned Counsel. Counsel Marwa submitted that the Honourable Arbitrator did not consider Rule 11(3) (a) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f2007 (herein GN. No. 64 o f

2007) on the grounds for seeking condonation. For instance, the degree of lateness is a factor that is considered when applying for condonation. He argued that the CMA has discretion power to condone late referrals based on good cause, regardless of the length of delay. He added that the Arbitrator also failed to consider the Applicant's prospects of success, which is a crucial factor under Rule 11(3) o f GN. NO. 64 o f 2007. It was submitted that the 10 days delay was explained during hearing. That, the Applicant together with his Advocate were preparing the said application before filing it but the Arbitrator did not take into consideration. It was Marwa's view that it was technical delay which is curable. In support of his submission, he referred the Court to the case of Costantine Gedalia v. Kagera Sugar Limited, Misc. Labour Application No. 3877 of 2024 where the Court had this to say: ...the period of delay up to 12th February:2024 when the ruling of striking out Revision No.6 of 2023 was pronounced is a technical delay which is explainable and excusable. That is to say, the Applicant is excused from accounting for each day of the delay within the period when he was before this Court in pursuit of Revision No.6 of 2023. Counsel Marwa continued to submit that the Applicant filed a complaint before the CMA on the 20th March, 2024 while his termination was on the 14th

December, 2023 and thereafter appealed within the company and the outcome of the appeal was delivered on the 22nd February, 2024 which upheld the decision to terminate the Applicant. The matter was struck out and allowed the Applicant to re-open it, for technical reasons. For those reasons, he urged the Court to grant this application. Responding to the application, counsel Kariwa argued that it is an established principle under the law that in an application for extension of time one has to account for each day of the delay. He supported the Arbitrator's findings that the Applicant failed to account for each day of the delay. In support of his argument, he cited the case of Wambele Mtumwa Shahame v. Mohamed Hamis, Civil Reference No. 8 of 2016, CAT at Dar es Salaam (unreported), where the Court of Appeal, at page 9, had this to state: It is already a well settled rule since more than ten years ago in unbroken chain of this Court's decisions to the effect that in the application of this nature the Applicant is obliged to account for the delay for everyday within the prescribed time. He also cited the case of Bushfire Hassan v. Latina Lucia Masanya, Civil Application No. 3 of 2007, cited in the case of Wambele Mtumwa (supra) in which it was held: Delay even of a single day has to be accounted for, otherwise, there would be no point of having prescribing periods within which

certain steps have to be taken. It was further submitted that the facts in respect to the prospect of success in his case as per Rule 11 (3) o f GN. 64 o f 2007, were never stated in the affidavit supporting his application for condonation. Hence, the Arbitrator could not rule on the facts that are not pleaded in the pleadings since parties are bound by their pleadings. It was further submitted by Mr. Kariwa that the Applicant's allegations that the 10 days delay were explained during hearing are misconceived and an afterthought statement that arise from the bar and cannot be acted upon. Counsel Kariwa placed reliance of his submission in the case of Maulid Ngowengo & Others v. the General Manager of Sonia Industries Ltd, Civil Application number 305 of 2023 (unreported) at page 8 where the Court made reference to the case of Farida F. Mbarak and Another v. Domina Kagaruki and 4 Others, Civil Reference No. 14 of 2019 Court of Appeal of tanzania at Dar es Salaam (unreported), at page 19, the Court stated: Further we find that the explanations of the delay given by the Applicants in their written submissions before the single Justice and also the explanations by Messrs. Mbwambo and Nyika in their respective submissions before us that the 5 days were spent in preparing and filing the application, to be statements from the bar which cannot be acted upon. As correctly held by the

single Justice, the explanations needed to be given in the notice of motion or the supporting affidavit. Regarding the claim of technical delay, it was submitted by Mr. Kariwa that it is undisputed fact however, the Applicant failed to account for each day subsequent to as it is the position in the case Subira Hussein & Others v. Dotto Yusufu @ Mzuzu, Civil Application No. 328/11 of 2022 (unreported) page 8 the Court of Appeal held that: It is a settled principle of law that, despite the presence of technical delay, the Applicant still has the duty to account for each day delayed...On that account therefore, the conclusion that the Applicants have failed to account for all the period of delay is inescapable. Again, in the case of Maulid Ngowengo & Others v. the General Manager of Sonia Industries Ltd, Civil Application number 305 of 2023 (unreported) at page 11 it was held that: In my considered view, technical delay principle, entitles the Applicant to enjoys, as accounted for, the number of days spent in Court while pursuing a case he timely filed up to the date of its striking it out by the Court for one reason or the other. Each day subsequent thereto, has to be accounted for up to the date of filing extension of time Application. Treating otherwise, is tantamount to giving the Applicant an unqualified right of bringing fresh case. Buying such averment meant that, he can

even seek extension of time after two years from the date his former timely case was struck out. Allowing such cause, will erode the meaning of having a well cherished principle imposing duty to the Applicant to account each day delayed, of which in essence embraces the spirit of Section 14(1) of the Law of Limitation Act, [Cap. 89 R.E.2022] The counsel distinguished the case of Constantine Gedalia (supra) that the circumstances from the cited case are distinct from the case at hand as the Applicant failed to account for the ten days subsequent to the ruling and therefore should not be considered by the Court. He therefore urged the Court to dismiss this application for being devoid of merit. I have dutifully considered the submissions. In this application the Court is called upon to determine; whether the Applicant adduced sufficient cause for the grant o f condonation prayed. It is the Applicant's strong position that the Arbitrator disregarded his application despite the fact that the Applicant has proved the conditions stated under Rule 11(3) o f GN. No. 64 o f2007. The relevant provision provides as follows: An application for condonation shall set out the grounds for seeking condonation and shall include the referring part's submission on the following: a) The degree of lateness b) The reasons for the lateness c) Its prospects of succeeding with the dispute and

obtaining the relief sought against the other party d) Any prejudice to the other party' and e) Any other reievantfactors. The record shows that the Applicant was terminated from employment on 14/12/2023. Aggrieved by the termination decision, he filed an appeal internally where the decision to terminate him was upheld on 22/02/2024. Thereafter, on 20/03/2024 the Applicant referred the dispute to the CMA. Such dispute was struck out by the CMA on 04/09/2024. Then, the Applicant filed an application for condonation at the CMA on 13/09/2024. It is undisputed fact that the first dispute was timely filed at the CMA but the same was struck out on 04/09/2024 because the Applicant did not indicate the nature of his dispute in the CMA FI. It is settled position in range of decisions that the grant of extension of time is within the discretion of the Court upon good cause adduced. The conditions to be considered in the grant of extension of time are stated in a landmark case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No.2 of 2010, [2011] TZCA where it was stated 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 guidelines may be formulated: f) The Applicant must account for all the period of delay g)The delay should not be inordinate h)The Applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. (d) If the Court feels that there are other sufficient 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 present application, as analysed above the period between 22/02/2024 when the decision to terminate the Applicant was upheld to 04/09/2024 is exempted by the principle of technical delay because the Applicant was in CMA corridors prosecuting his case. That is also the Court's position in range of decisions including the case of Farida F. Mbarak and Another (supra) cited by the Respondent's counsel. Therefore, the Applicant was supposed to account from 04/09/2024 to 13/09/2024 when he filed an application for condonation at the CMA. By simple calculation, the delay was for nine days only. It is my view that such delay is not inordinate as the Applicant stated that he used such time to prepare for the application for condonation which in my view is a reasonable excuse. I am alive with the principle that delay of even a single day must be accounted

for. However, it is my view that the principle emphasizes accountability and being responsible for time management. It means, no matter how small the delay is the Applicant must have justification. Thus, the justification that he was preparing documents for the application for condonation is justifiable. Furthermore, this dispute has never been heard on merit as to whether the termination was fair or not. Denying the Applicant the right to be heard for the delay of 9 days will not serve justice. In the result, it is my finding that the Applicant has adduced sufficient cause for the grant of the application at hand. Thus, the CMA's decision is hereby revised and set aside. The application is hereby granted. The Applicant is granted fourteen days (14) leave to file the intended complaint before th~ T‘ ' Jered.

JUDGE 26/03/2025 Ruling delivered and dated 26th March 2025 in the presence of Counsel Emmanuel Marwa for the Applicant and Frank Kilian for the Respondent. Y. 1 MLYAMBINA

JUDGE 26/03/2025