SAIDI KITUNDU SHOLE AND 136 OTHERS V CHIEF EXECUTIVE OFFICER TPC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOSHI SUB REGISTRY AT MOSHI MISC. LABOUR APPLICATION NO. 07 OF 2023 (Originating from Labour Revision No. 33 of 2015 of the High Court at Moshi, arising from Labour Dispute No. CMA/Moshi/ARB/04/2007) SAID KITUNDU SHOLE...................................................1ST APPLICANT JOHN F. MACHA............................................................2ND APPLICANT OSCAR F. MAKINDA.......................................................3RD APPLICANT ABDALLAH A. MZUMBE..................................................4TH APPLICANT JOSEPHA J. PAULO........................................................5TH APPLICANT SAFIEL E. MJEMA..........................................................6TH APPLICANT ATHUMAN H. SEMSI......................................................7TH APPLICANT STEPHEN A. MATIAME.................................................. 8TH APPLICANT SELEMAN Y. KIMU.........................................................9TH APPLICANT DONATI MASSAWE......................................................10TH APPLICANT YAHAYA SADIKI .........................................................11TH APPLICANT THERESIA F. ZOMANYA ..............................................12TH APPLICANT JUMA ALLY..................................................................13TH APPLICANT ALFRED MALITI ..........................................................14TH APPLICANT 1 EMMANUEL E. MUSHI..................................................15TH APPLICANT LAWRENCE D. MSAKI...................................................16TH APPLICANT KHATIBU S. KETO........................................................17TH APPLICANT JOSEPH A. NDARU.......................................................18TH APPLICANT BRYSON S. NG'AMBI................................................... 19TH APPLICANT RAMADHANI SUKARI................................................... 20th APPLICANT ISRAEL NYARI.............................................................21ST APPLICANT ADOLPH TEMBA ......................................................... 22ND APPLICANT FRANK TILYA..............................................................23RD APPLICANT JEROME BASIL ............................................................24TH APPLICANT TIMOTH J. TIMOTHEO ................................................25TH APPLICANT MASUMBUKO S. KABELEGE .........................................26TH APPLICANT ELIANGILISA J. MMBANDO…........................................27TH APPLICANT EMMANUEL GRIMOO ................................................. 28TH APPLICANT PETER OSHRAEL .........................................................29TH APPLICANT EDES JOHN ................................................................30TH APPLICANT LUCIA BERNARD .........................................................31ST APPLICANT JOSIANA RAPHAEL ......................................................32ND APPLICANT JOHN N. NYEKELEA......................................................33RD APPLICANT SAIDI M. SAIDI ...........................................................34TH APPLICANT JULIUS MKUMBO ....................................................... 35TH APPLICANT 2 SAMWEL L. JAMES...................................................... 36TH APPLICANT CUTHBERTH MASURA ................................................ 37TH APPLICANT COSTANTINO GEORGE ............................................38TH APPLICANT ELIMKUNDA SWAI ..................................................39TH APPLICANT WLLIAM LYIMO.......................................................40TH APPLICANT PETER SHIMWELA ..................................................41ST APPLICANT JULIUS MAKARIOS .................................................42ND APPLICANT GABRIEL FRANCIS...................................................43RD APPLICANT ESTER W. MSENGI...................................................44TH APPLICANT AUGUSTINO MAJO ..................................................45TH APPLICANT YAHAYA R. JUMA ................................................... 46TH APPLICANT SIMON MOHAMED...................................................47TH APPLICANT EXAVER MWAMAKA .................................................48TH APPLICANT RENATUS M. KALINGA ............................................49TH APPLICANT HUSSEIN S. MSAWA ................................................50TH APPLICANT JOSEPH YONA ........................................................51ST APPLICANT MONICA D. KIPANDA ..............................................52ND APPLICANT JOHN SAMWEL ...................................................... 53RD APPLICANT AGNES A. MTUI ......................................................54TH APPLICANT VALENTINA H. MUSHI..............................................55TH APPLICANT AMANA RAJABU.......................................................56TH APPLICANT 3 KARIM MPONDA ....................................................57TH APPLICANT ADAM H. SALEHE ...................................................58TH APPLICANT HAMZA J. FATAKI....................................................59TH APPLICANT FATUMA J. HAMISI.................................................60TH APPLICANT EMILIAN ZABRON...................................................61ST APPLICANT HOIDA T. MTEI.......................................................62ND APPLICANT AHMED I. ABDALLAH ..............................................63RD APPLICANT MALULU J. KIMONGE ..............................................64TH APPLICANT EMMANUEL M. TIWILI..............................................65TH APPLICANT JOHN S. NGAMILA...................................................66TH APPLICANT EUZEBIUS NGUYU....................................................67TH APPLICANT SOPHIA N. KUBEJA..................................................68TH APPLICANT ESTER NDUTA.........................................................69TH APPLICANT MARTHA N. NSALU..................................................70TH APPLICANT GLORIA A. MOSSES.................................................71ST APPLICANT JAINA KARIKENE.....................................................72ND APPLICANT MICHAEL V. MGOVANO...........................................73RD APPLICANT SAULO E. MJOGOLO ...............................................74TH APPLICANT YASIN L. LUKANGA ................................................75TH APPLICANT REDEMPHTER J. SHIO..............................................76TH APPLICANT WILSON NGIMBA.....................................................77TH APPLICANT 4 SYPRIAN R. MAHAVILE ............................................78TH APPLICANT MWASIT ABEID ......................................................79TH APPLICANT NEITIWE MGONJA ..................................................80TH APPLICANT LEONARD T. CHENGA ..............................................81ST APPLICANT STAIL L. MSANSHI ..................................................82ND APPLICANT ASSA K. MWAMPONDALI .........................................83RD APPLICANT LAMECK GEREMIAH ................................................84TH APPLICANT GRACE M. KAHAWA ............................................... 85TH APPLICANT MARIA YASINTI ..................................................... 86TH APPLICANT SAID SALAHE .........................................................87TH APPLICANT RODGERS MASSAWE................................................88TH APPLICANT NJOROYOTA MWANGOKA ........................................89TH APPLICANT JOHN PETRO ..........................................................90TH APPLICANT BERNARD HAULE ................................................... 91ST APPLICANT JUMA MSENGI ........................................................92ND APPLICANT COSMAS HASSANI .................................................93RD APPLICANT JOHN V. LUOGA .....................................................94TH APPLICANT ANNA S. MWAIPAJA ................................................95TH APPLICANT SILVIA G. WOISO ...................................................96TH APPLICANT ABUU KISUWA ....................................................... 97TH APPLICANT MANASE YOHANA....................................................98TH APPLICANT 5 TIMOTHEO NDEHAKI ............................................. 99TH APPLICANT LAMECK KIMATH ..................................................100TH APPLICANT EDMUND S. MSOFE................................................101ST APPLICANT PETER MAJAA ......................................................102ND APPLICANT OMARY ATHUMAN ................................................103RD APPLICANT ROBERT MSENGl ..................................................104TH APPLICANT ANNA J. MWAMBAYA ............................................105TH APPLICANT MWILEE MWANIJEMBE ..........................................106TH APPLICANT JOHN MICHAEL ....................................................107TH APPLICANT SALEHE BAKARI ....................................................108TH APPLICANT AMOS MOSSES .....................................................109TH APPLICANT NAKAZA ELIESIKIA.................................................110th APPLICANT HASSAN O. KADIO ................................................111ST APPLICANT DONATHA KESSY.................................................112ND APPLICANT THERESIA NDAWONI............................................113RD APPLICANT ALISTARIA SWAI .................................................114TH APPLICANT YUDA THADEI ......................................................115TH APPLICANT LEONARD ISINIKA ................................................116TH APPLICANT DAUDI YONAH.......................................................117TH APPLICANT BATISTA POKUMTWA ............................................118TH APPLICANT LONGINO MNYEMA ...............................................119TH APPLICANT 6 SAIDI S. ALFAN ....................................................120TH APPLICANT DOROTHEA MALUMBA ...........................................121ST APPLICANT JOHNSON H. KILAWE ...........................................122ND APPLICANT LINDERSON J. MOSHI ...........................................123RD APPLICANT RAJABU MKATI......................................................124TH APPLICANT WALTER W. SHOO ................................................125TH APPLICANT RAPHAEL NYALILE ................................................126TH APPLICANT YAHAYA SAIDI......................................................127TH APPLICANT ROSE EMMANUEL .................................................128TH APPLICANT THERESIA CHAPUCHAPU ...................................... 129TH APPLICANT ALEX A. NJAU ....................................................... 130THAPPLICANT VUMILIA MMARY .................................................. 131ST APPLICANT RAJABU JUMBE ................................................... 132ND APPLICANT DOUGLAS MAKAMBO …........................................ 133RD APPLICANT HUSSEIN S. FONGA ............................................. 134TH APPLICANT WILSON JUNGWA .................................................135TH APPLICANT AMIRI NGWILIZI ................................................. 136TH APPLICANT SHABAN KIVUMA ................................................. 137TH APPLICANT VERSUS CHIEF EXECUTIVE OFFICER TPC LIMITED ................. RESPONDENT 7 RULING 10/06/2024 & 18/06/2024 SIMFUKWE, J. The Applicants hereinabove, filed this application seeking extension of time to lodge notice of appeal to appeal to the Court of Appeal against the decision of the High Court in Labour Revision Application No. 33 of 2015 dated 20th July, 2015. The application has been preferred under section 57 of the Labour Institutions Act, [Cap. 300 R.E 2019] and sections 5(1)(c) and 11(1) of the Appellate Jurisdiction Act, [Cap. 141 R.E 2019]. It was supported by the affidavit deponed by the late Faustin Materu, who was by then the learned counsel for the applicants. Under paragraph 12 (a), (b) and (c) of the affidavit the following legal issues were raised: (a) Whether under section 4 of the Employment and Labour Relations Act, Cap 366 R.E 2022 there was strike at TPC Co. LTD on 23rd and 24th of January 2007. (b) Whether an employee who was off duty can under section 4 of the Employment and Labour Relations Act (supra) be held 8 to have taken part in a strike at TPC Co. LTD on 23rd and 24th of January 2007. (c) Whether under the Employment and Labour Relations Act (supra) the applicants were legally terminated and if not whether they are entitled to be reinstated and to be paid compensation under the Act. The hearing of the application was done by way of written submissions whereas Mr. John Faustin Materu, learned counsel argued the application for the applicants and the respondent enjoyed the service of Mr. David Shilatu, learned counsel. Advocate John Materu started his submission in chief by adopting the contents of the affidavit in support of the application to form part of his submission. He submitted among other things that it is not disputed that applicants did file Civil Appeal No. 194 of 2020 before the Court of Appeal of Tanzania against the decision of this court in Revision No. 33 of 2015. The said appeal was found to be defective for failure to disclose names of all applicants and was withdrawn on technical ground on 05th July 2023. Thereafter, the applicants were forced to restart the appeal process by filing the present application. The learned counsel averred that, the delay in filing fresh notice of appeal has therefore been caused by what is termed as technical delay. He 9 buttressed his averment by citing the case of Bank M (T) Limited v. Enock Mwakyusa, Civil Application No. 520/18 of 2017 (unreported) at page 8 where the Court of Appeal of Tanzania held that: “In Rwegasira (supra), for instance, the full Court quoted the holding and subscribed to the position taken by a single Justice of the Court in Fortunatus Masha (supra), the holding which I cannot resist the urge to recite: A distinction had to be drawn between cases involving real or actual delays and those such as the present one which clearly only involved technical delays in the sense that the original appeal was lodged in time but had been found to be incompetent for one or another reason and fresh appeal had to be instituted. In the present case the applicant had acted immediately after the pronouncement of the ruling of the Court striking out the first appeal. In these circumstances an extension of time ought to be granted.” Mr. Materu went on to quote from page 10 of the cited decision where the Court continued to hold that: “I subscribe to the view taken by the Court in the above cases. The applicant Bank, having been duly penalized by having Civil Appeal No. 109 of 2012 struck out by the Court and the High Court (Labour 10 Division) dismissing Miscellaneous Application No. 133 of 2017, the same cannot be used yet again to determine the timeousness of applying for filing the fresh Notice of Appeal in a bid to file a fresh appeal. On the authority of the decisions of the Court cited, that was an excusable technical delay on the part of the applicant which constitutes good cause under rule 10 of the Rules, under which the notice of motion has, inter alia, been taken out, to grant the order sought.” (emphasis supplied) Also, Mr. Materu subscribed to the case of Director General LAPF Pension Fund v. Pascal Ngalo [2020] TLR 216. The learned counsel referred to paragraph 12 of the affidavit which shows that there are legal issues which arose from the decisions in CMA/MOSHI/ARB/04/2007 and Revision No. 33 of 2015 to be addressed and determined by the Court of Appeal in the intended appeal. He stated that the legal issues constitute points of law worth consideration by the Court of Appeal under section 57 of the Labour Institution Act (supra). It was stated further that it is settled position of law that a claim of illegality in the decision sought to be appealed against constitutes sufficient reasons for extension of time regardless of whether or not a reasonable explanation has been given by the applicant to account for the delay. Mr. Materu cemented his point by referring to the case of Attorney 11 General v. Tanzania Ports Authority & Another, Civil Application No. 87 of 2016 (unreported) at page 12 where the Court of Appeal held that: “In my considered view, the applicant’s claim on illegality of the challenged decision is one of the special circumstances constituting sufficient causes for extension of time under Rule 10 of the Rules, regardless of whether or not a reasonable ground has been given to account for the delay. (See: VIP Engineering & Marketing and 2 Others vs Citibank Tanzania Limited (supra) and the case of Ministry of Defence, National Service vs Davram [1992] T.L.R 185)” Mr. Materu concluded that the applicants have demonstrated good cause for this court to grant the application for filing Notice of Appeal out of time. He prayed this application to be granted. Mr. David Shilatu learned counsel for the respondent started his reply submission by adopting his counter affidavit to form part of his submission. He submitted that the applicant’s prayer is centered on technical delay and illegalities. On the first ground Mr. Shilatu contended that technical delay is applicable in a situation where the first appeal or application was timely filed but failed to proceed due to some other factors. That is to say the applicant in the previous matter failed to proceed and he is given the second chance 12 to enjoy adjudication by the court. The learned counsel said that the same is in line with what was stated in the case of Fortunatus Masha v. William Shija and Another [1995] TLR 154 which was referred in the case of Bank M (Tanzania) Limited v. Enock Mwakyusa (supra). He did not dispute the fact that this application is referring Civil Appeal No. 194 of 2020 of the Court of Appeal of Tanzania at Moshi which its withdrawal paves a way for a claim of technical delay in the instant application. That is Misc. Application No. 07 of 2023 of the High Court of Tanzania, Moshi Sub-registry. However, Mr. Shilatu was of the view that in the eyes of the law Civil Appeal No. 194 of 2020 is not related to Misc. Application No. 07 of 2023 of the High Court. He explained that Civil Appeal No. 194 of 2020 involved 150 appellants while Misc. Application No. 07 of 2023 involved 137 applicants. Hence, the instant application marks a new application and that the concept of technical delay cannot apply. On the second ground, Mr. Shilatu asserted that illegalities must be on the face of records to warrant extension of time. He said that what have been highlighted by the applicants herein on paragraph 12 (a), (b) and (c) of the applicants’ affidavit are the points of determination. He stated further that, for illegality to form basis of extension of time, it must be clearly visible upon the face of the record as explained in the case of 13 Joyce Joram Lemanya v. Patrick Lemanya and Another, Civil Application No. 430 of 2021, Court of Appeal of Tanzania at Dodoma. He formed an opinion that there are no available records of proceedings involving parties herein regarding the said claim. The learned counsel prayed this court to find the instant application to have no merit and dismiss it. Rejoining on the issue of different number of appellants before the Court of Appeal and the applicants herein; Mr. Materu submitted that it was true that in Civil Appeal No. 194 of 2020 the appellants were 150. He said that after the said appeal was struck out it was 137 applicants out of the said 150 appellants who were interested in refiling the intended appeal to the Court of Appeal. He observed that there is no law and none had been cited by the respondent’s counsel that forces all applicants in Labour Revision No. 33 of 2015 to appeal to the Court of Appeal of Tanzania against the decision of the High Court in that revision. He said, that is the essence of Rule 83 (1) of Tanzania Court of Appeal Rules, 2009 as amended which reads: “Any person who desires to appeal to the Court shall lodge a written notice in duplicate with the registrar of the High Court.” Emphasis added 14 From the above provision, Mr. Materu said that 13 out of 150 applicants in the High Court Revision No. 33 of 2015 did not desire to appeal against the decision of the High Court. Therefore, though Misc. Application No. 07 of 2023 involves 137 applicants against the Chief Executive Officer TPC Ltd nevertheless, it is intended to challenge the decision of the High Court. He insisted that it is not a new application and the concept of technical delay applies to this application. Also, Mr. Materu reiterated that the case of Bank M (Tanzania) Limited v. Enock Mwakyusa (supra) annexed to their submission in chief and respondent’s reply submission, supports the applicants that the delay in filing notice of appeal is technical one. Mr. Materu submitted further that, in determining illegalities the court looks at the decision sought to be appealed against and not proceedings of the subordinate courts as suggested by the respondent’s counsel. He elaborated that the word record means the decision sought to be appealed against. The learned counsel distinguished the case of Joyce Joram Lemanya v. Patrick Lemanya and Another (supra) cited by Mr. Shilatu. He said that first, the illegalities in the said case were not visible upon the face of the record while in this application the illegalities are clearly visible in the decision of the High Court in Revision No. 33 of 2015. Secondly, the cited decision was a second bite application for extension 15 of time that was dismissed on account of ignorance of the law being not good cause for extension of time. He contended that in this application the applicants have managed to explain the delay in filing the application for extension of time to lodge a fresh notice of appeal after their appeal i.e. Civil Appeal No. 194 of 2020 was struck out. That, immediately after getting copy of the Court of Appeal order the applicants lodged the present application for extension of time. He insisted that applicants demonstrated vigilance in pursuing the matter as it was held in the case of the Attorney General v. Tanzania Ports Authority and Another (supra). In conclusion, Mr. Materu reiterated his prayer in submission in chief that this application be granted. I have considered the affidavit in support of the application, the counter affidavit and the rival submissions of both parties. The issue for determination is whether this application has merit. It is trite law that, extension of time can only be granted upon good cause being shown and where the delay has not been caused or contributed by negligence or sloppiness on part of the applicant. In the case of Brazafric Enterprises Ltd vs Kaderes Peasants Development (PLC) (Civil 16 Application 421 of 2021) [2022] TZCA 624 (13 October 2022) [Tanzlii] at page 8 & 9 the Court of Appeal stated that: “It is noteworthy that there is no universal definition of the term "good cause'. Therefore, good cause may mean among other things, satisfactory reasons of delay or other important factors which needs attention of the Court, once advanced may be considered to extend time within which a certain act may be done...” Emphasis supplied Based on the above quoted decision, for extension of time to be granted, the applicants are duty bound to advance good cause for their delay. The court invoking its discretion must take into consideration the length of the delay, the reasons for the delay and whether the applicants have accounted for each day of delay. The learned counsel for the applicants raised the issue of technical delay as the reason for the delay to file the intended Notice of Appeal. In the affidavit, it was deponed that the former Notice of Appeal was filed in time but it was withdrawn together with Civil Appeal No. 194 of 2020 on the reason that names of the applicants were not disclosed in the Notice of Appeal and Memorandum of Appeal. In his counter affidavit and reply 17 submission, Mr. Shilatu strongly believed that since the number of applicants has decreased from 150 to 137, then this application is a fresh case which is not related to the former cases. Respectfully to the learned counsel for the respondent, right to appeal is a constitutional right as provided under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania. As a matter of practice where there are many litigants, one cannot force his fellow to pursue his rights if he is not willing. It goes without saying that rights of a person cannot be defeated upon reluctance of another person to proceed with the case. Therefore, the assertion that this application is not related to the former appeal and applications is unfounded. Back to the merits of this application; it is undisputed fact that the former Notice of Appeal was withdrawn together with an incompetent Civil Appeal No. 194 of 2020 on 05/07/2023. Then, the applicants filed the application at hand on 20/07/2023, after the lapse of about 14 days. I am obliged to find that the delay of 14 days is ordinate. Having in mind the raised legal issues sought to be considered by the Court of Appeal and the established technical delay, this application deserves to be granted. 18 Consequently, I grant extension of time to the applicants to file their Notice of Appeal within 14 days. No order as to costs. It is so ordered. Dated and delivered at Moshi this 18th day of June 2024. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 18/06/2024 19