CIVIL APPEAL NO 390 OF 2022 PUMA ENERGY T LIMITED VS KHAMIS KHAMIS

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MWANDAMBO. 3.A.. MWAMPASHI. J.A. And FELESHI, J.A) CIVIL APPEAL NO. 390 OF 2022 PUMA ENERGY (T) LIMITED..... ................. ......................... APPELLANT VERSUS KHAMIS KHAMIS............... ............................................ RESPONDENT (Appeal from the Ruling and Order of the High Court of Tanzania (Labour Division) at Dar es Salaam) (AboucLA) dated the 2nd day of August, 2019 in Revision No. 323 of 2019 JUDGMENT OF THE COURT 21st February & 3rd March, 2025 FELESHI, J.A.: The crux of the matter in this appeal is on computation of period of limitation based on a court order. The narrative behind it is that, Khamis Khamis (the respondent) was an employee of Puma Energy (T) Limited (the appellant) who was terminated from service on 27.10.2016. Aggrieved, he preferred a Labour Dispute No. CMA/ DSM/ TEM/ 533/ 2016/ 12/2017 at the Commission for Mediation and Arbitration for Dar es Salaam (the CMA) which determined it in his i favour after finding that his termination was both substantively and procedurally unfair. The CMA thus ordered the appellant to pay him Tshs. 323,950,608/= as 36 months salaries compensation for unfair termination, Tshs. 24,227,075/- as severance pay and Tshs. 195,720,159/= as subsistence allowance. Dissatisfied by the award, the appellant lodged Revision Application No. 901 of 2018 to the High Court (the court). However, the application was struck out on account of its incompetence following the prayer made by Mr. Rwazo, the learned advocate who represented her on 3.4.2019. In striking out the application the court granted leave to the appellant to file a fresh and proper application within seven days from the date of the order, that is from 3.4.2019. In compliance with the court's order, on 10.4.2019, the appellant successfully filed Revision Application No. 323 of 2019. When the fresh application was called on for mention on 16.4.2019, Mrs. Antonia Agapiti, learned counsel for the appellant found the respondent had filed a preliminary objection premised on two grounds, one of them being that the application was time barred. On being asked for her views by the court, Mrs. Agapiti conceded the raised preliminary objection and urged the court to strike out the 2 application with leave to re-file a fresh one. In its ruling dated 2.8.2019, the court sustained the preliminary objection on the ground that Revision No. 323 of 2019 was time barred. Though the appellant's counsel conceded the preliminary objection leading to the striking out of the application it seems her concession was a misconception since the order granting the leave of seven days was to be construed to mean that the time had to reckon from 4.4.2019 and not 3.4.2019 which was the date when the order was issued in which case they finally resonated that, their Revision No. 323 of 2019 filed on 10.4.2019 was within time. Therefore, the appellant applied for review vide Labour Review No. 496 of 2019 which, however, was dismissed for want of merits. With leave of the court granted to her on 29.6 2022 the appellant filed her notice of appeal to this Court on 6.7.2022 and then on 2.8.2022 she lodged her memorandum of appeal with two grounds as follows: 1. That the Honourable Judge erred in law in finding that labour revision No. 323 o f 2019 was time barred. In particular: (a) The Honourable judge erred in law by failing to consider the provisions o f section 19 (1) o f the Law of Limitation Act, Cap. 89 R.E 2019 by excluding the day on which the extended time was to be computed. 3 (b) In failing to note that the time extended is that provided under the provisions o f Rule 56 (1) o f the Labour Court Rules GN. 106 o f2007. 2. By deciding the matter on a day when the matter was fixed for mention the learned High Court Judge erred in law in denying the Appellant the full opportunity to be heard. At the hearing of the appeal, Ms. Samah Salah joined forces with Ms. Miriam Bachuba, both learned advocates appeared representing the appellant while Mr. Evold Mushi learned advocate represented the respondent who was also present. Submitting in support of the appeal, Ms. Salah invited the Court to consider the submissions filed in the Court on 1.11.2022 per rule 106 (1) of the Tanzania Court of Appeal Rules, 2009. It was submitted on the first ground of appeal that, the High Court erred to include the date of the order, that is, 3.4.2019, while the same was supposed to be excluded in terms of section 19 (1) of the Law of Limitation Act, Chapter 89 (the Law of Limitation Act). Ms Salah contended that, section 19 (1) of the Law of Limitation Act fills the gaps obtaining in section 91 (1) (a) of the Employment and Labour Relations Act, Chapter 366 (the ELRA) which provides for time to file revision but does not give powers to the High Court to extend time. She further argued that, rule 55 (1) of the Labour Court Rules G.N. No. 106 of 2007 (Labour Court Rules) empowers the Labour Courts to adopt procedures deemed appropriate in the circumstances, adding that, section 46 of the Law of Limitation Act sets an open ground for invocation of the Law of Limitation Act in any proceedings where a period of limitation is not provided for. In view of that, she thus argued that the extension of time the High Court Judge granted was in terms of section 14 (1) of the Law of Limitation Act which gives effect to the application of section 19 (1) of that Act. It was thus Ms. Salah's submission that, the time limit from 3.4.2019 had to be reckoned from 4.4.2019 and not on 3.4.2019 and that undoubtedly made the revision filed on 10.4.2019 to be within time. The learned counsel went on arguing that, though on the date of striking out the revision the appellant was represented by an advocate who conceded that the revision was out of time, such concession to her did not preclude the learned High Court Judge from determining the issue before her according to law for the sake of justice. In response to Ms. Salah's submission on the first ground of appeal, Mr, Mushi resisted the appeal. As to the first ground/ he was straightforward that it is the law that court orders including the impugned order of the court must be complied with. He argued that the Law of Limitation Act which is applicable to provisions of written laws does not apply to discretionary court orders. To him, the applicant's revision application filed on 10.4.2019 per the court's order provided time from 3.4.2019 the seven days expired on 9.4.2019. Upon being probed by the Court on the applicability of section 60 (1) (b) of the Interpretation of the Laws Act, Chapter 1 (the Interpretation of the Laws Act); and, on simple arithmetic of the time given by the court, Mr. Mushi remained insistent that, neither the Law of Limitation Act nor the Interpretation of Laws Act could be applicable to vacate the time discretion ally fixed by the court. So, despite readily conceding that arithmetically ten minus three is equal to seven, Mr. Mushi maintained that the seven days reckoned from 3.4.2019 expired on 9.4.2019. Therefore, he was of the view that, the first ground of appeal lacked merits and should be dismissed. In her brief rejoinder, Ms Saiah invited the Court to find that section 60 (1) (b) of the Interpretation of Law Act is applicable in construing the word "from" in computing time limits. She then reiterated that the provisions of the law of Limitation Act she referred to, apply to court orders by virtual of sections 91 (1) of the ELRA and rule 55 of the Labour Court Rules. We have dispassionately followed both counsel's rival submissions and considered the record and the law. We will start our deliberation with the first ground of appeal. We think, the complaint can be well discussed through a single issue whether Revision No. 323 of 2019, which was withdrawn and leave of the court granted for filing a proper one within seven days from 3.4.2029 and got filed on 10.4.2019 was time barred. The issue is when computation of those seven days begun. A very sharp divergent position taken by counsel, as alluded to above, is on the inclusion or exclusion of the day the challenged court order was issued that is, on or after 3.4.2019. We think, be it as it may, we are bound to begin with the substance of impugned order which is found at page 35 of the record of appeal. It reads: "In the circumstances o f the case, the court grants leave to the applicant to file a fresh and proper application for the last time. The application is to be filed within seven (7) days from this order." [Emphasis added] This Court was faced with a situation akin to the one before us in the instant appeal in Kenafric Industries Limited v. Lakairo Investment Company Limited (Civil Appeal No. 149 of 2021) [2024] TZCA 164 (6 March 2024) TANZLII where the order given to parties on 18.2.2020 in Commercial Case No. 07 of 2019 to file the witnesses' statement read that: "The parties are ordered to file their witness submissions within 14 days as from today as per the rules o f this court." In establishing when did the fourteen days begun in that case, considering that the appellant and the respondent had filed their witnesses' statement on 3.3.2020 and 28.8.2020 respectively, the Court scrutinized the court order within the parameters of section 60 (1) (a) of the Interpretation of the Laws Act which provides "In computing time for the purposes o f a written law where a period o f time is expressed to be at, on, or with a specified day, that day shall be included in the period ". Then, in reconciling the two, that is, the impugned court order and the law above, our position in that case was thus: "While the law appears to be settled as briefly alluded to herein above,, the appellant might have interpreted it differently from what was implicitly ordered by the trial judge. This is more so in view of the complex and likely interplay between the two phrases deducible from the order o f the trial Judge, thus: "The witness statements were to be filed whether (a) within 14 days as from 13th February, 2020 or (b) within 14 days as per the rules o f the Commercial Court. "[Emphasis added] As in that case we finally found that the trial Judge's order was not sufficiently plain, clear and unambiguous regarding the first day out of the 14 days within which the witnesses' statement were to be filed, we thus on revisionary powers quashed and set aside the order striking out both parties' statements and dismissing the suit and its counter claim together with the subsequent proceedings and the appealed against ruling. Our decision in Kenafric Industries Limited (supra) obviously, in our unfeigned view, disproves Mr. Mushi's contention that the court orders on time limitation are immune to written law. Besides, his contention is further disproved by section 2 of the Law of Limitation Act which defines the word "proceedings"to mean "a suit, an appeal or an application, and includes proceedings under customary law/' We hold so because, no one can contest that the subject matter in the appeal before us squarely befits the definition above. Without any hesitation, we hold Mr. Mushi's contention is both unmeritorious and unmaintainable. Back to our case, with all due respect to Mr. Mushi, unlike what transpired in Kenafric Industries Limited (supra) where we found that the impugned court order was ambiguous and unmaintainable, we have been unable to find any ambiguity in the instant impugned court order. To us, the sentence "to be filed within seven (7) days from this order" is in all fours with the legal framework applied to compute the period of limitation under section 19 (1) of the Law of Limitation Act and section 60 (1) (b) of the Interpretation of Laws Act. Section 19 (1) of the Law of Limitation Act provides: "In computing the period o f limitation for any proceeding, the day from which such period is to be computed shall be excluded" [Emphasis supplied] On the other hand, section 60 (1) (b) of the Interpretation of the Laws Act provides: "In computing time for the purposes o f a written law where a period o f time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period". [Emphasis added] We are also inclined to agree with Ms. Salah's viewpoint that, the High Court order granting seven days was according to section 14 (1) of the Law of Limitation Act. With respect, we find it imperative to underscore that, had the court not invoked her powers and granted leave to revive the subsisting labour dispute for adjudication through the intended fresh and proper application, the appellant would have lost a requisite forum before the court because the court had already struck out her Revision Application No. 901 of 2018 on 3.4.2019 and nothing had remained before it. It thus makes sense why sections 14 (1), 19 (1) and 46 of the Law of Limitation Act and rule 55 of the ii Labour Court Rules fill the gaps obtaining in section 91 (1) of the LERA. In line with this discussion, section 46 of the Law of Limitation Act provides: "Where a period o f limitation for any proceeding is prescribed by any other written law, then, unless the contrary intention appears in such written law, and subject to the provisions o f section 43, the provisions o f this Act shall apply as if such period o f limitation had been prescribed by this A ct" In view of the foregoing, as we conclude we hold that, by the High Court order granting seven days using the word "from" as intimated above, then seven days were to be computed from 4.4.2019. That, even by simple arithmetic we are exposed to conclude that from 4.4.2019 to 10.4.2019 when the application was filed, it was the 6th day the period which was within seven days. The issue we raised is thus settled in the negative. Owing to the above discussion, we hereby allow the first ground of appeal which we also find it sufficient to dispose of the appeal without need to venture into the 2nd ground of appeal. Consequently, we quash and set aside the High Court's order dated 2.8.2019 that sustained the preliminary objection in Revision No. 323 of 2019. We order the file to be remitted to the High Court to proceed with that revision application on merits. We make no order as to costs. DATED at DAR ES SALAAM this 28th day of February, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgement delivered this 3rd day of March, 2025 in the presence of Ms. Antonia Agapiti, learned counsel for the Appellant and also holding brief for Mr. Evodius Mushi, learned counsel for the Respondent, is hereby certified as a true copy of the original. 13