saafa plastic ltd vs yona onesmo others 2018 tzhcld 24 6 april 2018

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 345 OF 2017

BETWEEN SAAFA PLASTICS LIMITED................................ APPLICANT

VERSUS YONA ONESMO & 70 OTHERS...................... RESPONDENTS

RULING Date of Last Order 13/03/20J.8 Date of Ruling 06/04/2018 NYERERE. J. Applicant/ SAAIiA/RLASfrCS LIMITED filed the present application \ seeking extension of. time to file an application for revision of the Labour Dispute No.CMA/DSM/24/010/1042 of Mwidunda-Arbitrator. The application was moved into Court Under Rule 24(l)(2)(a)(b)(c)(d)(e)(f), and 24(3)(a)(b)(c)(d), and Rule 55(1)(2) of the Labour Court Rules, GN No. 106/2007. Events leading to the present application are that; at the CMA the Complainants initiated a dispute claiming unfair termination. Their termination was adjudged unfair and the employer was ordered to reinstate applicants in terms of Section 40(l)(a) of the Employment and Labour Relations Act, No. 6/2004 (ELRA) and failure to it he was to comply with Section 40(3) of the Act. • //\\ It is in applicant's affidavit that following the VCMA award ^ ’ey'"' complainants filed an application for quantification of the decree; the same was presided by Ho. Mwidunda. That upon perusing^the^records, applicant realized procedures and manner used to undertakequantification is tinted with illegalities and irregularities in which this court is invited to examine ' \' and decide upon hence applicants filed the present application seeking extension of time to reviseJfie decision of Mwidunda Arbitrator 26th July, 2016. At the hganigl^QfJhis application applicant was

represented by Mr. Mbuga learn,ed'Hjpflhsel whereas respondent was represented by Mr. Yahaya Mtete^Personal Representative. Advancing the reasons for delay in filing the application for revision Mr. Mbuga learned Counsel for Applicant argued that the applicant is required to show cause as to why the application for Revision was not filed within time. Further applicant refered the decision of Court of Appeal Civil Application No. 471/18 of 2016 TANZANIA NATIONAL PARKS (TANAPA) VS. JOSEPH K. MAGOMBI at page 12-13; Civil Application No. 94/2016 TANESCO VS. MUFUNGO LEONARD MAJURA & 15 OTHERS in which both indicates illegality of the decision, if proved on the face of it, is good ground for extension of time. Mr. Mbuga learned Counsel for Applicant werit on%to sutSfFiit that applicant is alleging illegality on the CMA award Med "UAMUZI KUHUSU MAOMBI YA UDADAVUZI WA TUZO" dated 26%Jl3|y, 2016, adducing four reasons under paragraph 6 of the Affidavit and refer the case of BP TANZANIA LTD VS. ALEX RWABINA (LCC£>>Reported between 2011 - 2012 Case No. 62 at page 120 the^holding iru(IV). That Rule 30(1) of the Labour Institutions Mediation. ari'd*,Arbitration Rules 2007 read together with Section 90(1) of tl^'Empldyment and Labour Relations Act, the Arbitrator was supposedi'to'^o'^it'within fourteen days citing Misc. Application No. 227/20161EBRAHIM HAJI CHARITABLE HEALTH CENTRE VS.

JENIFFER MLONDEZ1 & J U I HERS. "V v Mr. Mbuga learned Counsel for Applicant on submitting the, 3rd ground for extension of time cited case of GEORGE MAPUNDA VS. DAWASCO (LCCD) 2014 Case No. 89; Emmanuel Quma Marcellus Vs. North Mara Gold Ltd reported 2014 LCCD No. 101 (ii), and proceeded to argue 3 that the case was abandoned by an Advocate as stated in paragraph 4 and 5 of the affidavit therefore pray this application be granted. In rebuttal Mr. Yahaya Mtete Personal Representative for respondent objected to the allegation of illegality. Submitting that the Arbitrator complied with Rule 8(1) (2) (3) and (4) of Labour Institutions (Ethics, Code of Conduct for Mediators and Arbitrators GN 66/2007:), that Arbitrator did quantification after employer failed to complyX with the order of A'" \ - \ s . . reinstatement of Commission for Mediation and Arbitration award which V . was upheld by this court in Revision Nq./71/2015 .delivered on 12/11/2015 before Hon. Mashaka, Judge. The Personal Representative for respondent went on to submit on the reasons for delay as . stated under paragraph 3 of Affidavit that applicant was aware of CMA award since 10/01/2017 however he filed this application to (tFiis..court on 11/10/2017 nine months later. Further i . Applicant had filed Notice of Appeal at CAT and decided to withdraw on 11/07/2017. The Personal Representative for respondent is of

the view if applicant had reasonable grounds he could file his application for extension of time but failed to do so. That even if this application is allowed it would be res-judicata; Revision has already been heard and decided by Hon. Mashaka, Judge. Therefore Personal Representative for respondent prays this application to be dismissed for failure to adduce good reasons for delay. In rejoinder, Mr. Mbuga Counsel for applicant reiterated his submission in chief and further argued that Rule 8 (1) - (4) of the Labour Institutions GN 66/2007 is irrelevant. Counsel for applicant informed the - v'- ’ court that the application before this court is against the CMA Award which was delivered on 26tn July, 2016, and insisted and .maintained that for the < decision of Hon. Mashaka, Judge is of 12/11/201: ■v After carefully examined parties' submissions^ light of the relevant labour laws and practice the issue for decision is whether the applicants have demonstrated good cause as to entitle them to be granted extension , \ of time. The law under Ruile56(l) of the Labour Court Rules GN 106/2007 provides that:- "The cburt may extend or abridge any period prescribed by thesefrules'on application and on good cause shown, unless , the court is precluded from doing so by any written law." What constitute sufficient reasons has been demonstrated by Mandia JA in the Court of Appeal case of John

Mosses and Three others Vs. The Republic, Criminal Appeal No. 145 of 2006, following the definition in the case of Elias Msonde Vs. Republic Criminal Appeal No. 93 of 2005, held that:- "We need not belabor, the fact that it is now settled law that in application for extension of time to do an act required by law, all that is expected of the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part." (Emphasis mine) In the present case it was narrated by the a^DNcant in ^agraph 3 of the affidavit that on 10th /01/2017 applicant CQtinsejwas instructed to handle execution No. 242/2012, which^ya^gending before court. Thereafter applicant's principal officer injprmeg applicants counsel that the previous Advocate George Ambrose Shayo had abandoned execution No. 242/2012 without giving informing of what had transpired at the court. % Applicant's Counsel, submitted that on discovering the matter had % \ been abandoned bythe previous Lawyer he decided to peruse the file, and \ discovered^thatbefore the court is an application for execution of the ' I'' award delivered on 30/08/2012 by Mwidunda, arbitrator. Further Applicant's counsel submitted on paragraph 6 of the affidavit that he discovered on 25/02/2016 respondents herein had preferred application for

quantification; the same was before Arbitrator Mwidunda in which he realized there is illegality and irregularity in the award. I must say applicant's counsel raised the alarm to this court that the Arbitrators decision was tainted with illegality therefore illegality is sufficient ground to abridge time. As prescribed in the case of Motor Vessel Sepideh & Pemba Island Tours and Safaris v. Yusuf Moh'd Yusuf & Ahmed Abdullah, Civil Application No. 91/2013 Court of Appeal of Tanzania (CAT) at .. / -' ♦ Zanzibar (Unreported) CAT reiterated the principle earlier stated in the case of Principal Secretary Ministry of Defence and N^janal Service v. Devram Valambhia 1992 [TLR] 185 at 189 that; "Where, as here the point of law^flfrisSfaeJ^the illegality or otherwise of the decisffri beiril^»£|Jfillenged, that is of sufficient importance to cofi&ituteV'Sufficient reasons". Furthermore applic^ '^ ™ 'nsel elaborated on the issue of illegality \ , and made referencg^KS^yoiyywci of the Arbitrator under Rule 30(1) of the Labour Institutiohs^Mediation and Arbitration Rules 2007 read together with Section ^0^1) of the Employment and Labour Relations Act. ord^r to observe what has been submitted by applicant on the alleged illegality, I am to visit section 90 of the Employment and Labour Relations Act, GN No. 6/2004; which states; "an arbitrator who has made an award under section 88(8) may, on

application or on his own motion, correct in 7 the award any clerical mistake or error arising from incidental slip or omission". From the wording of the above section; I take the meaning of the provision to mean; correction on clerical mistake, or error arising from any accidental slip or omission from the award, and the correction is to be done # %, /■ as provided for under the law, fourteen days from the date on which the applicant became aware of the arbitral award, as per Rule Rule 30(1) of v■ .. ' the Labour Institutions Mediation and Arbitrationv. Rules x ■ 2007. \ ... Turning on the CMA award issued on 26/07/2016, at page 1, it is established that on 25/02/2016 the CMA received an application from the complainant that, requesting award.issued on 30/08/2012 to be elaborated (ifafanuliwe/idadavuliwe). That the CMA had issued award on 30/08/2012 V' and complainants were dissatisfied, the complainants had to file revision \ application to the High Court, and its ruling was issued on 12/11/2015 V \ \ before Mashaka J>Jn which the high court confirmed the CMA decision. \ Therefore, the arbitrator award was delivered on 30/08/2012 and the / arbitrator issued " u a m u z i k u h u s u m a o m b i y a u d a d a v u z i w a t u z o " on 26th July, 2016, in which applicant is alleging illegality. Thus the High Court had issued a ruling on 12/11/2015 in which the high court

confirmed the CMA decision and then the complainant, filed an application to CMA for 8 'udadavuzi" the award was titled " u a m u z i kuhusu maombi ya u d a d a v u z i WATUZO" and was delivered on 26th July, 2016, From the events above, the court take the stance of the Personal Representative for respondent that, applicant knew about the CMA award on 10/01/2017; but he carelessly filled the current ori,41/10/2017 ,pine months later. Therefore I subscribe to Court of Appeal of-.Tanzania case of Daudi -it \ v V\ V Haga v. Jenitha Abdan Machanju, Civil reference No. 1/2000, and Tanzania Vh ^ Fish Processors Ltd v. Christopher Luhangangula, Civil Appeal No. 161/1994 ,• / V where the court held that "a person seeking for an extension o f time had to prove on every single day for delay" to enable the court to exercise its discretionary I power. It is unfortunate applicant in the present failed to adduce sufficient

V O V reasons to account for every ordinate day of delay. From thexab6veNqbservation, I am of the considered view; I find no sufficient ground for extending the period of filing extension of time to file '\> v S' revision application. I therefore, accordingly dismiss the application. X / It is so ordered. tfw c ii A.C. Nyerere

JUDGE 06/ 04/2018