kulwa soya vs republic 2021 tzhc 5481 9 august 2021

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) IN THE DISTRICT REGISTRY OF SHINYANGA AT SHINYANGA MISC. LABOUR APPLICATION NO. 36 OF 2020 PHINIAS MANYAMA MUSIBA APPLICANT VERSUS BULYANHULU GOLD MINE LTD RESPONDENT [Arising from the decision of the Commission for Mediation and Arbitration of Shinyanga] (Kiwala, M-Abitrator) dated the 1st day of April,2020 in CMA/SHY1240/2018 RULING 10thJune&23rdJuly,2021. MDEMU, l.: This application has been filed by the Applicant by way of chamber summons in terms of Rule 56(1), Rule 24(2)(a)(b)(c)(d)(e)(f), Rule 24 (3)(a)(b)(c)(d) and Rule 28(1)(c)(d)(e) of the Labour Court Rules, G.N No. 106 of 2007 read together with Section 94(1)(b)(i) of the Employment and Labour Relations Act, Cap. 366 R:E 2019(ELRA). In the chamber summons, the Applicant prays for this Court to grant extension of time within which to file Application for Revision against the decision of the Commission for Mediation and arbitration of Shinyanga in Labour Dispute No. CMAjSHYj240j2018. The application is supported by an affidavit sworn by the Applicant on 2nd of September, 2020. In a nut shell, the facts as can be gathered from the affidavit and the Commission's award provide that, the Applicant was an employee of the Respondent in deferent positions including Trainee Miner, Jack Leg Operator and Miner Operator till 17th May, 2015 when he was terminated on ground of incapacity (ill health). Aggrieved on the termination, while knowing that he was out of time, the Applicant through Labour Dispute No. CMAjSHYj240j2018, applied for condonation. The Commission in the final analysis decided against the Applicant's favor. That was on 1st April, 2020. Being aggrieved and again while knowing that he is out of time, on 2nd September, 2020 the Applicant approached this Court with the present application. On 10th June, 2021, the application came for hearing. Mr. Mashaka Tuguta Advocate, represented the Applicant whereas Ms. Caroline Kivuyo Advocate, represented the Respondent. Submitting in support of the Application, Mr. Tuguta raised a point of illegality faulting the CMA award contending that, the Applicant was not afforded right to be heard. To cement his point, Mr. Tuguta cited section 86(6) and section 88(9) of ELRA, Cap.366 RE 2019 contending that, parties to the dispute have rights to be represented. He went on submitting that, according to paragraph 14 of the affidavit and exhibit PMM/3 annexed thereto, the Applicant appointed Mr. Benjamin Dotto as his personal representative. He added that, neither the Applicant nor Mr. Benjamin abandoned or withdrew from representing the Applicant. To their astonishment, on the hearing date one Innocent Benard, Advocate appeared for and represented the Applicant without his authorization. On that note, it was Mr. Tuguta's stand that, absence of any document with regard to authorization of Advocate Innocent to represent the Applicant, entails apparently that, the Applicant was unheard at the Commission for Mediation and Arbitration. He insisted that, the same omission breached Article 13(6)(a) of the Constitution of the United Republic of Tanzania,1977. Mr. Tuguta was of further views that, had Advocate Innocent been instructed to represent the Applicant, then the Respondent's counter affidavit would have been annexed with any document proving the same or Advocate Innocent would have sworn an affidavit to that effect. He cited the case of Mbeya Rukwa Autoparts Transport Limited v. Justina George Mwakonya (2003) TLR 251 and Oysterbay Villas Limited v. Kinondoni Municipal Council and Another, Civil 3 J --------~--------- Application No. 110 of 2019 (unreported) showing that, the right to be heard is fundamental and constitutional one that when breached renders proceedings a nullity. On account of that illegality, Mr. Tuguta prayed for extension of time. To bolster his argument, he cited the case of Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia (1992) TLR 185. In her reply, Ms. Kivuyo started by adopting their notice of opposition and counter affidavit. She then submitted that, according to paragraphs 18, 19 and 20 of the Applicant's affidavit, the Applicant concedesto be aware of the decision and yet he took five (5) good months without challenging the same. On another note, Ms. Kivuyo stated that, exhibit PMM/3 attached to the Applicant's affidavit refers to CMA/SHY/KHM/240/2018 and not CMA/SHY/240/2018 labour dispute which its decision is subject to this application. She thus thought that, those are two different cases and that, she formed a considered opinion that, the application is an afterthought and intends to mislead the court. Again, Ms. Kivuyo questioned the Applicant's and his representative's whereabout on 2nd March,2020. Also, she questioned as to why the Applicant did not account for days of delay in all five months as stated in the case of Deus Moris Alexander v. Sandvik Mining and Construction Ltd, Revision No. 14/2011. On the point of illegality as a ground for extension of time, Ms. Kivuyo submitted that, the case of Samwel Monsilo v. Chacha Mwikwabe , Civil Appeal No. 539/08/ of 2019 limited its scope as enunciated in the Valambhia's case. She argued that, as Advocate Innocent is not here and as long as there is no affidavit showing that he was not instructed or how he knew the existence of the case, then Ms. Kivuyo was of the opinion that, such illegality is not on the face of the record. She then distinguished the cases of Mbeya-Rukwa (supra) and that of Oysterbay Villas Ltd (supra) as they are on appeal and revision respectively and not extension of time. On another point, Ms. Kivuyo reminded the court that, this is not an application for revision but for extension of time and that, the court should not entertain mere submissions from the bar. She then prayed for the Applicant's application be dismissed. In rejoinder Mr. Tuguta stated that, as exhibit PMM/3 bears same case numbers, deference of the word KHM does not affect parties' rights and that, at CMA, parties have only one case. He also pointed out that, on 2/3/2020 the Applicant was sick. On the issue of accounting of every day of delay, Mr. Tuguta said the same dies automatically when illegality as ground for extension of time is raised. As to Advocate Innocent, Mr. Tuguta submitted that, paragraph 9 of the counter affidavit shows that the Respondent knows him well. As such, he thought they should have attached his affidavit. He lastly reiterated all his submissions in chief. This was the end of both parties' submissions. I have gone through all parties' submissions together with the available records as well. The issue before me is whether the Applicant should be granted extension of time. All along, the Applicant has raised only illegality as a ground for extension of time. While I agree with Mr. Tuguta that, once illegality as ground of extension has been raised, a party is not burdened to account for each day of delay. However, a party may not be at liberty to come any time he wishes as long as he banks on illegality. There must be sense of promptness over actions he pursues. In other words, reasonablenessof time the action got taken must be put into account. I also agree with Ms. Kivuyo that, as per the case of Samwel Monsilo (supra), illegality that has been raised as ground for extension of time, must be on the face of the record. The question is, does illegality raised by the Applicant as ground for extension of time meet the test in Samwel Monsilo 's case? 6~ --======~--------- The Applicant's point of illegality stems on the allegations that, Advocate Innocent entered appearance and proceeded hearing without being instructed, thus the Applicant was denied right to be heard. At this juncture, I found myself asking one question as to whether, when one reads that decision encompasses Advocate Innocent participation in the matter, will that one apparently recognize the un-authorization to represent? Definitely not, until that one goes to the proceedings and how the same prejudiced the Applicant. To the proceedings as well, one also will have questions to ask. Suppose Advocate Innocent was holding brief with instruction to proceed, was he supposed to have authorization in writing? He was not required so in my opinion. With this alone, illegality as ground for extension of time is blurred. It becomes not apparent on the face of record. Again, the decision which the Applicant wants to challenge contains information as to the reasons for termination and procedures taken. Also, the same contains information that, the Applicant was not told his rights to appeal by the employer during termination. In my view, such pieces of information rests to the merit of the dispute such that, one cannot know unless he is instructed. Apparently, the Applicant has never rejected belonging to that information. How did Advocate Innocent know them if he was not instructed by the Applicant? Advocate Innocent is an officer of the Court who knows disciplinary measures he could face upon representing a client without instructions, thus destroying one's case. How could he dare to represent without written or unwritten authorization? Why there was no any disciplinary measures taken against Advocate Innocent to date, if he was not really authorized? Why the day when Advocate Innocent entered appearance is the day when the Applicant and his personal representative did not appear to court? Was the undertaking reported to the Advocates Committee established under the Advocates Act, Cap.341. Was the matter reported to disciplinary forums within the mandate of Tanganyika Law Society? At this point, with the presence of all those questions, can anyone say that the illegality as raised by the Applicant, is apparent on the face of the record? The answer is not at all. Illegality as ground for extension of time as raised by Applicant is not apparent on the face of record. It is wanting. In other words, the Applicant has not shown how the conduct of the said Advocate in the course of representing him got reflected in the decision to constitute illegality. On the other hand, in order to establish that the Applicant was denied right to be heard, there is a need to find answers to all those questions and their answers to be in favour of the Applicant. On that account, I am of the firm view that, the raised illegality does not meet the test set in the case of Samwel Monsilo (supra). On that note, I find the Applicant's application to have failed and I proceed to dismiss the same. Each part to bear own costs. Order accordingly. on . Mdemu JUDGE 23/07/2021 DATED at SHINYANGA this 23rd day of July, 2021. -/ 9