rehema said mdiriko 24 others vs the board of trustees of national social security fund 2021 tzhcld 2018 2 december 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 216 OF 2021 (Originating from Labour Dispute No. CMA/DSM/TMK/524/2019/199/2019) BETWEEN REHEMA SAID MDIRIKO........................................................................ 1stAPPLICANT SAUDA SAMWELI BILAMBO................................................................... 2ndAPPLICANT ZAWADI SHABANI RASHID.................................................................... 3rdAPPLICANT FATUMA SAIDI CHINUNJE...................................................................... 4thAPPLICANT A, ASHA SHABANI RASHIDI....................................................................... 5thAPPLICANT PILI JUMA MOHAMEDI............................................................................ 6thAPPLICANT FARIDA SAIDI MCHAURU....................................................................... 7thAPPLICANT SOMOE SHAIBU JUMA............................................................................ 8™APPLICANT JAFARI MAHAMUDU KURIDUVA............................................................. 9™APPLICANT JANETH DONALD MWAKIJINGA........................................................... 10™APPLICANT ADHA RAMADHANI ALMASI.................................................................. 11™APPLICANT ZAWADI JUMA DANDA..........................................................................12™APPLICANT ABDUL SHABAN MARIADUA................................................................. 13™APPLICANT THOMAS EDSON MWAKIJUGUNA........................................................ 14™APPLICANT WILLIAM YOHANE NKOROCHE........................................ 15™ APPLICANT RAILAT OMARY ABDALA....................................................................... 16™APPLICANT HABIBA ALLY NGOROVE........................................................................17™APPLICANT ANGELINA ZAKAYO TITO.................................................. 18™ APPLICANT ZENA SAIDI CHINUNJE......................................................................... 19™APPLICANT BIBIE ISSA NAMDIMBA......................................................................... 20™APPLICANT 1 FATUMA SALUM NJAMA....................................................................... 21stAPPLICANT JUMA RAMADHANI PATIPATI...............................................................22ndAPPLICANT SEMAINDE JOHN JUMA....................................................................... 23rdAPPLICANT SHABANI HAMISI..................................................................................24™APPLICANT VERSUS THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND....................................................... RESPONDENT Date of Last Order: 20/10/2021 Date of Ruting: 02/12/2021 I. Arufani, J. The applicants herein filed in this court the present application seeking for order of extension of time to file in the court the . 'v*<- application for revision of the decision issued by Hon. Kayugwa, Arbitrator of the Commission for Mediation and Arbitration (hereinabove referred as the CMA) at Dar es Salaam on 10th February, 2021. The application is supported by a joint affidavit of the applicants and it was challenged by the counter affidavit affirmed by Baraka Mgaya, Learned State Attorney for the respondent. During hearing of the application, Advocate Jane G. Msevya represented the applicants and prayed to adopt the affidavit supporting the application to form part of her submission. She stated 2 that the applicants are seeking for extension of time to file in this court an application for revision of the CMA award which was delivered on 10th February, 2021. She said after receiving the award, they discovered typographical errors on the name of the respondent and the date of issuance of the award. On 1st March, 2021 they wrote a letter to the CMA seeking for correction of the errors found in the award. The said errors were corrected and on 21st May, 2021 they were served with the corrections of the award. She stated further that, upon receiving the correction of the award they realized that time for filing application for revision in the court had elapsed. She argued that, on 28th May, 2021 they filed the present application in the court on line seeking for Jp extension of time. Ms. Msevya argued that, it is the court's discretion to grant extension of time. She prayed the court to grant the applicants the order of extension of time to file in the court the application for revision out of time. She strengthened her submission by referring the court to the case of Kahinga and Company's Advocate v. National Bank of Commerce Ltd., Civil Application No. 126 of 2005 [2006] TLR 235. 3 In reply Mr. Baraka Mgaya argued for the respondent that, the applicants have failed to account for each day of the delay from 10th February, 2021 when they received the impugned award to 1st March, 2021 when they wrote a letter to the CM A. He referred the court to the cases of MZA Trading Company Ltd. v. Export Trading Company Ltd., Commercial Appeal No. 01 of 2014 and Joseph Charles V. Eliakunda Daudi, Misc. Civil Application No. 236 of 2019. At the end he prayed for dismissal of the application. % In rejoinder, it was asserted by the counsel for the applicants that, by the time they wrote a letter to the CMA they were still within Ji? the time of filing revision in the court as required by the law. She argued that, the delay was caused by the CMA which delayed to supply them with the corrected award within the time. She submitted the delay was out of their control. She insisted on her prayer that, this court be pleased to grant the application so as to enable the applicants to file their application in the court out of time. After carefully considered the submission made to the court by both sides and after going through the affidavit and counter affidavit filed in this court by both sides the court has found the issue for 4 determination in the present application is whether the applicants were prevented by good cause to file the application for revision of the award of the CMA in the court within the time prescribed by the law. The court has framed the above issue after seeing section 56 (1) of the GN. No. 106 of 2007 upon which the application is made requires the applicants to show were prevented by good cause to file the application for revision in the court. For clarity purpose the cited provision of the law states as follow:- " The court may, extend or abridge any period prescribed by these rules on application and good cause shown, unless the court is precluded from doing so by any written law." The term "good causd' referred in the above quoted provision of the law is not defined in the cited law or any other law. However, the said term has been defined by courts in range of decisions made by Ik this court and the Court of Appeal. One of the cases is Bertha v. Alex Mganga, Civil Reference No. 7 of 2016, (unreported) where the Court of Appeal stated that:- "Whilst it may not be possible to lay down an invariable definition of good cause so as to guide the exercise of the court discretion, the court is enjoined to consider, inter alia 5 the reasons for the delay, length of the delay, whether the applicant was diligent and degree of prejudice to the respondent if time is extended. "[Emphasis added]. It is also provided under Section 91(1) (a) of the Employment and Labour Relations Act, CAP 366 R.E 2019 that:- (1) Any party to an arbitration award made under section 88 1 % (10) who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for a decision to set aside the arbitration award:- (a) within six weeks of the date that the award was served on the applicant unless the alleged defect involves improper procurement." While being guided by the position of the law stated . hereinabove the court has found the reason for delay advanced by ■■ the applicant in the present application is that, they were waiting for CMA to rectify typographical errors found on the impugned award. It was submitted that, after the applicants received the award on 10th February, 2021, they noted some typographical errors on the respondent's name and on the date of issuance of the award. On 1st March, 2021 their counsel applied to the CMA to rectify the errors observed on the award and they received the correction of the award 6 on 21st May, 2021 and filed the present application in the court on line on 28th May, 2021. The counsel for the respondent contended that, the applicant has failed to account for each day of the delay especially from the date of receipt of the award on 10th February, 2021 to the date they wrote a letter to the CMA on 1st March, 2021 seeking for rectification of the alleged errors. The court has found the question to determine 5$^ T’ % here is when computation of limitation of time was required to start counting in the parties' case. When the Court of Appeal was dealing with the issue of limitation of time to file application for revision in the labour court as provided under section 91 (1) of the ELRA it ■ ■ • • stated in the case of Serengeti Breweries Limited V. Joseph Boniphace, Civil Appeal No. 150 of 2015 that:- "... the plain and dear meaning of section 91 (1) of ERLA is that, the limitation period of six weeks begins to run against the applicant after the award is served on the applicant. The law is so couched because it is not open to the applicant to know if he is aggrieved with the award unless it is served to the applicant. "[Emphasis added]. 7 From the wording of the above quoted excerpt read together with section 91 (1) (a) of the ELRA quoted earlier in this judgment it is crystal clear that limitation of time to file application for revision in the court starts to count from the date when a party is served with the award. The court has found that, although it is true that the award of the CMA was issued on 10th February, 2021 and the applicants have not disputed that they were served with the copy of the award on the mentioned date but it has not been stated when the errors stated were in the award were discovered by the applicants. ■ ■ J, ■ The court has also found the applicants deposed at paragraph 4 of their affidavit that the errors on the award were discovered after doing thorough perusal of the award and after discovering the said errors they wrote a letter to the CMA on 1st March, 2021 seeking for correction of the discovered errors. As from when the award was issued up to when the applicants wrote a letter to the CMA seeking for correction of the observed errors it was only about 18 days which had passed out of 42 days of filing application for revision of the award of the CMA in the court, the court has found it cannot be said the applicants have failed to 8 account for those days as argued by the counsel for the respondent. The court has arrived to the above stated finding after seeing that as the applicants discovered there were errors on the award and they wrote the letter to the CMA on 1st March, 2021 seeking for the errors to be corrected and they were served with the correction of the award on 21st May, 2021 the limitation of X. if time to file application for revision in the court in respect of the said award was required to start counting from the date the applicants were served with the correction of the award and not from when the defective award was issued to them on 10th February, 2021. Therefore, counting from 21st May, 2021 to the date of filing the present application in the court on line on 28th June, 2021 as ''' ■■ stated by the counsel for the applicants, it was about thirty eight (38) days which had passed. As the law requires application for revision of an award of the CMA to be filed in the court within 42 days from the date of receipt of the award, it is crystal that when the present application was filed in the court the applicants were within the time of filing the application for revision in the court. 9 That caused the court to find the applicants misdirected themselves in filling the present application in the court to seek for extension of time to file application for revision of the award of the CMA while they were still within the time to file application for revision in the court. However, the court has found that, despite the stated misdirection, it is proper for the interest of justice to grant them the order they are seeking from this court of extension of time to file in the court the application for revision of the award of the CMA. In the premises the application of the applicants for an order of extension of time to file in the court application for revision of the award of the CMA out of time is hereby granted, w ' ■■■ < Ik The applicants are given fourteen (14) days from today to file their application for revision of the award of the CMA in the court. It is so ordered. Dated at Dar es Salaam this 02nd day of December, 2021. I. Arufani JUDGE 02/12/2021 io Court: Ruling delivered today 02nd day of December, 2021 in the presence of Ms. Jane Godluck Msevya, Advocate for the Applicant and holding brief of Mr. Kennedy Kasongwa Gwakisa, State Attorney for the Respondent. 11