REV NO 13705 OF 2024 RAJABU MOHAMED DADI 16 OTHERS VRS BAKHRESSA FOOD PRODUCTS LIMITED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 13705 OF 2024 CASE REFERENCE NO. 202406111000013705 BETWEEN RAJABU MOHAMED DADI & 16 O TH ER S ..... .................... APPLICANT VERSUS BAKHRESSA FOOD PRODUCTS LIM ITED................ .............. RESPONDENT JUDGEMENT Date of last Order: 08/ 07/2024 Date of Judgement: 31/ 07/2024 MLYAMBINA, J. Dissatisfied by the decision of the Commission for Mediation and Arbitration (herein CMA) in Trade Dispute No. CMA/DSM/ILA/348/2023/183/2023 delivered on 22/12/2023 by Hon. Nyagaya, P. Arbitrator, the Applicant filed the present application premised on the following grounds: i. That, the Honourable Arbitrator erred in law and fact for holding that the Labour Dispute No. CMA/DSMIILA/348/2023/183/2023 was time barred. ii. That, the Honourable arbitrator erred in law and fact for holding that the application for Condonation was mandatory in filing the referral with the Commission after the exclusion of time spent in the prosecution of a former dispute by the Applicants at the same Commission. iii. That, the Honourable Arbitrator erred in law and fact for failure to distinguish the 2 cases of DED Sengerema District Council v. Peter Msungu & 13 Others, Labour Division Misc. Application No.27 of 2013 and Equity Bank Tanzania v. Innosent Mtengwa, Revision No. 88 of 2023 up on which she relied, thus misdirected in her decision. The application was argued by way of written submissions. Arguing for the application, the Applicants were represented by counsel Mwita Kasisi. The Respondent on the other hand enjoyed the services of counsel Rose Peter Mtesigwa. I appreciate the comprehensive submissions of both Counsel which shall be taken on board in due course of constructing this brief judgement. Of albeit importance, after considering the relevant submissions, there is one issue to be determined; whether the matter was timely filed at the CMA. In his submission, counsel Kasisi dwelled at length on a new issue of conflict of interest in respect of two counsel for the Respondent namely, Ms. Rose Peter Mtesigwa and Mr. Shabani Yusufu whose appearance alleged to have vitiated the whole CMA proceedings. Being guided by a well settled principle that parties are bound by their pleadings, the submissions in question are disregarded. The Applicants' submission ought to have been directed to the grounds for the revision application at hand. Determining the new raised issue is as much as allowing the Applicants to start a new case in which, as a matter of procedure, it is improper. As said earlier, parties are bound by their pleadings, their arguments are limited to what they have pleaded, which in this case, is the notice of application, chamber summons and an affidavit supporting the application. The position has been highlighted in range of Court decisions including the case of Makori Masoga v. Joshua Mwaikambo & Another (1987) TLR 88. In the instant application, the Applicants admit the following facts: One, they were employed by the Respondent as Security Guards in different contracts. Two, way back on 29/09/2022 the Applicants instituted a labour dispute against the Respondent for the claim of overtime payment which arose on 31/07/2022. Three, while the dispute was yet to be determined, the Applicants were retrenched from employment on 31/01/2023. It was the Applicants' averments that they felt that the newly emerged dispute about retrenchment is substantially the same with the formally instituted dispute. They also felt that it would have been an abuse of Court process in initiating a new dispute. They therefore decided to change the nature of dispute in the formally instituted dispute from the claim of overtime payment to the claim of unfair termination. From the above shortly narrated facts, it is crystal clear that the matter was filed at the CMA out of time. As rightly submitted by counsel Mtesigwa, the time limit for referring disputes at the CMA is governed by the provision of Rule 10(1) and (2) o f the Labour Institutions (Mediation and Arbitration) Rules GN. No. 64 o f 2007 (herein GN. No. 64/2007) which provides as follows: 10 (1) Disputes about the fairness of a employee's termination of employment must be referred to the Commission within thirty days from the date of termination or the date that the employer made a final decision to terminate or uphold the decision to terminate. (2) All other disputes must be referred to the Commission within sixty days from the date when the dispute arose. It is undisputed fact that the refiled dispute was about termination of employment, hence, ought to have been filed within 30 days from the date of termination or the date the employer made the final decision to terminate the employment contract. The Applicants indicated in the CMA FI that the dispute arose on 30/01/2023, but the CMA FI was filed at the CMA on 22/06/2023. Counting from 30/01/2023 when the Applicants were retrenched from employment to 22/06/2023, it is crystal clear that the dispute was filed after lapse of 30 days as per Rule 10(1) (supra). On the basis of the above analysis, it is my view that the matter was filed out of time as rightly found by the Arbitrator. I have considered the Applicants argument that they thought it would have been an abuse of the Court process to start another dispute. With due respect, the argument is based on the ignorance of law which has never been a ground for grant of any relief before the Court. So long as the cause of action arose differently, and the time limit for filling each dispute is different, then the same ought to have been observed. The Applicants further persuaded the Court to distinguish the case at hand with the case of DED Sengerema District Council (supra) and Equity Bank Tanzania (supra) relied by the Arbitrator. I have gone through the cited cases and found have similar circumstance with the present one. The matter was time barred; hence the applications were dismissed, which is the position in the present application. Similarly, numerous Court decisions the remedy for time barred applications have been discussed including in the case of Barclays Bank Tanzania Limited v. Phylisiah Hussein Mcheni, Civil Appeal No. 19 of 2016, Court of Appeal of Tanzania, Dar es Salaam in which the Court held that: ...it would be inequitable if we allowed one party to an employment contract to disregard time in instituting a complaint against the other party. We think matters would not come to finality as required if a party who allows grass to grow under his feet and delays in instituting an action, would only be given an order to refile it. The very object of the law of limitation would be defeated for... In the result, the application was filed out of time without leave. It follows therefore that the present application is dismissed for lack of merits. The CMA's award is hereby upheld. No order as to costs. It is so ordered. Y.J. MLYAMBINA JUDGE 31/07/2024 Judgement pronounced and dated 31* July, 2024 in the presence of counsel Mwita Kasisi for the Applicants and Rose Peter Mtesigwa for the Respondent. Right of appeal explained. Y.J. MLYAMBfNA JUDGE 31/07/2024