20091211 TZHC Dar es Salaam

~ f:1-~J.S~r t~..----,. ~ f,\~ .~t fo"' YC.."ooJl ~.~Ic_p_~-- - -- r> . o~lp.,t,J 1 :I . ~ .,___ ~ ¢) IN THE HIGH COURT Of TAN:ANIA fv'---"--'--.5 t- \:u... ~ \,,,..c:~c.u~ '1 . . · ·.· . ·I • LABOUR DIVISION ___. Pr~ ~,:c...,~-~-t-c,~~e. ~ AT DAR E~ SALAAM fc,J'"t- . e..~1;- • cf.-: -+: 1;.· " ' ' ~ I - . t"""'~~ ~ \..1-e. J~ete.b' LABOUR REVISIO~. NO 38 OF 20r9 o.cco~-et.. ~---~-~I ·_\o ~ 'L1 ~- :! -- - I_. sAIMON KAZIMOTO ............ ~ ........ COMPLAINANT ,.,l_µ. Q... v-1-~~ , . VERSUS 1 · TANZANIA LEGION CLUB .... ..:1.................. RbSPONDENTS i I (Original CMA/DSf/KIN-ILA/2728.Ji ., . .• • ·- .. . . 'I ... .iil'•ilillJl!;/1111H;:11ilillll<11illl1illl!lll1111, 'lillilllililllllllillllilllllliilll11flli!lililli'lilllllllililllllli11ll!lllillllil!lllllll11llllllillllllilililhllliillliill!illlil!lliiiil!li!illl!ll ,1f 1,;1ilill1id11111,, 11 •I 11, ,11,11•l"'l!!ll1i 1!· 1•1 ·: ···'" ": · ·'' ''" ,;,,' 11 'ii;;·•'" 1,1,,1 '"' ..,,,,,._,,,:ii liliilli''' '" !iPi' I,••'-.,,,,,;,, -•11 ·' ,,,, • ;; ·• 1,, ·· ·• . . l RULI,NG 27/11/2009 & 11/12/2009. Rweyemamu, R.M.l; On 26/2/2009, the applicant/employee fHcd a c mbined application to this court seeking that: I - ! ~.-::~••••~•-••,•:e • ••• i a) "The Honourable Court be pleased to extend ti I e within which to set aside the award of the Commis~ion for Mediation and Arbitration Massay, A dated 4 November, 2008 pen~ing hearing of an application for revision filed in this court. i b) The honourable court be pleaseb to set aside an arbitration award of the Commission for Mediation and ~rbitration Massay, A dated 4 November, . J -2D · 2008. !1 . - :I . c) Any other order or relief the Honpurable Court may deem fit so to grant." :i The respondents filed a counter - ~ffidavit togethe with a notice of . . : . ·. ~-- ...~:- '.. - ·-·1::··_· . '~- .. . .• ·- . Preliminary Objection (PO) on the follo0ing grounds: I. "That the application is destitutely time barred. II. That the Honourable Court has no jurisdiction to entertain this application. i III. That the application is not maintainable ftjr being accompanied by a defective affidavit which is argumentative and contains conclusions on legal points. N. That the application is not properly before the Court." This ruling is in respect of that PO, which was_arg.ued-bv--way of written submission. il/11 1111 ,111111111111111,1111111illlllll1!J1111111111,11111,11111Jlllll1lliillll1nitt11illllhlllillllllli11i1ii1111111111111iil/111illl1llllil/ililllill1l11illl!li1",11,,,:1:Hllillll1:11111,1i;11i:11l:·•!l·'::1-·11,,;1. ,11, 11• ·1·. :,,,,;,11,1111,,111wl11:,i,-11.:n':,:ii111l11:i,1111,1,;,:,,11,,,,,, ''"'·"""''' _1;·,.,,,1.1; .. ,1.,, .. • ., "· ··'i. ''· ··, .,. ·1, Arguments for PO I, II and IV were combined by the respondent who - ,o made several arguments. First that the application for revision was time barred, that according to law - section 91 (1) (a) of the Employment and Labour Relations Act, (herein the Act) 6/2004, an application to set aside an award should be made within six weeks. That is indeed a correct position of law. That issue is notdisputed by the applicant because ground (a) of the application is an admission that the application for revision was time barred, thus a prayer to have the time extended. It is therefore a fact that on 26/2/2009, when this application was filed to set aside an award issued on 4/11/2008, it wa$ time barred. 2 The applicant however sought to have the time to file the application ' extended (ground a) above) to which the respondent: raised a second argument that: I "Due to-the fact that the application is time barred and there is nowhere in the Act which provides room for application for extension of time for review- ...This court has no jurisdiction 1 to entertain this application ..... " I wish to state clearly that the respondent is wro~g regarding his submission that this court has no power to extend time ,for taking action like the present. The Labour Court Rules (the rules), GN 106/2007 made - Io r sectio 1 1111 1 1111 ill!ll!mulllillllllililllllluHHe cW 1111 - P h' SS H1eiTaB'ou'r''''fnstituti6ns!!'Act:l•l·i/2oo~f ~ovide 'under rule" ii,,,'-,,;,-,,,.,, 1 1 I 56 (1) that: "The court may extend or abridge any period prescribed' by these Rules on application and on good cause shown, unless the court is precluded from doing so by any written law. " I To my knowledge, there is no law preventing this court, when 'good cause is I shown'to extend the time prescribed under section 91 (~) of the Act. To conclude, I find that the court has jurisdiction to• entertain such .,,._.. - -- I applications, and depending on its decision, proceed with: a matter which, - ✓• I but for the application, would have been time barred. Su~h an application --20 I can be made by a party seeking such extension filing an application under rule 24 of the rules. The question for decision in this application however is; has the? I \ applicant made the requisite application showing "good cause fot delay? :--..~-:..J-- -----"- --= - --.......... 3 155-! I I have read the affidavit in support::ef the application but find no ; grounds relating to the issue of cause of delay and prayer for extension of I ' time. The affidavit contains only grounds. relating to the! merits of the application for revision. On checking the CMA record however, I noted ,a ruling dated I I 16/2/2009 which reads: I I I I I I "Application to set aside arbitration award marked th 11;,;;,tiilllilllli!>l•illli!lllilll!il!llllllltlliilill/iilllll!lllilllllfllllhwit:hqrawn.,, Dated ·and.. delivered at oar -~s Salaam this i6 · · · day of February 2009." (Signed Arbitrator) : I I The applicant submitted, as though by change of stance that; he first -ID I I submitted the application for revision to the CMA; that after the matter was withdrawn there, he timely submitted the current appli<t:ation; -that "the ' I matter was continuously still within the l?{,fjf:f/ti-of the cou~' (p~obably meaning within legal process), and therefore that the applicatioh was not time ( barred. To that submission, my conclusion is that the fact that the applicant I I had used a wrong venue, does not of itse·lf confer jurisdiction on this court i to deal with a case which is time barred. Granted, that fa~ may constitute I sufficient cause for delay, where the applicant- files a prop~r application for I extension of . time, b.lJtJ have__ alr~ady found that he: did not. In the . . • • . . . •'. . -· ,.._. ' .. ·-.~,.··--~-----· ..... ···1•-- -·- ,,. ···.--· .. - 20 I circumstances, I find that; there was no application pr,operly so called, I I I I I I 4 .• ' -I fs't --· ~. supported by affidavit, seeking an extension of time to file the:- revision application; because the application is time barred, this court has no jurisdiction to entertain it. The respondent made a third argument which I should discuss, even though it is not of immediate relevance in disposing of this matter. It was submitted that the court has no jurisdiction for revision, bu.t for review and even then, that under section 91(2) of the Act, the jurisdiction of this court "" 1;, .. ,... 1111 ,;,,, •• ,,,.,i, arises·: Wnefe, it is demonstrated by the applicant that there. was misconduct •· on the part of the arbitrator or improper procurement of the award. That the applicant in this case has not demonstrated the above, as such, the same should be dismissed. My understanding of section 91 of the Act is that t11€7p~iiase used- 'setting aside an award' made under S. 88 (8) is synonymous with revision, ( therefore this court has powers of revision of CMA award under . ,. the Act . Two, that ground (b) which reads "the award was improperly procured" for which the award may be set aside, is not meant to be interpreted narrowly. The section has to be read together with Rule 28 of the rules, particularly 28(c) and (d) and therefore extends to where the award i$ found not to be 'justified' or based on the evidence on record. The fourth submission regarding a defective affidavit need not retain me. Applications for. ~· . .. . ··- ·- . . -~~ .... ·:. ...,,___,____ ___ , extension of time should be drafted as· per'·reqi.Jirement of ru1e··24 of the L,_• • • -~-•••-•""'.,..•-• -~,_,-_,,,,,..,,... -"'l!"'-.......,....,_•,._•--.,,.., .. s • rules, not as per procedures used under the Civil Procedure Act. 5 To concluae, ordinarily, I would have. had the application struck out on ground of being time barred and ended there, but I believe the facts of this case calls for a-. different cause of action. I take judici~I notice of the fact that the procedures governing labour disputes are relatively new and still unfarrimar to some unrepresented users, (a matter evidenced by the , __ applicant's first failed attempt for revision·). I therefore ~se the powers vested in this court under rule 55(2) of the rules, to give extension of time to the applicant to file (if he so chooses), a proper application for extension / of time to apply for revision of the CMA award of 4/11/2008. That ,il!l l il'""';"' ••l'i·applicatibn'l·sho'uld"be 'made within 30days from the date of delivery ofthis'Hj!'l"lll~''' 't'O•''' 1 ruling. I make no orders as to costs. ~rt-~~.::.::~':~·~· ~;-~f ri..~fti\ l(li'"iJ~ 1~~-;\:•:.:.i ,. · _; J:;;,~ JUDGE .~~:,i~~-;~'.(~ ~--~\1-1r.,.r.;....,..;;.- ~~;;;:z:~· 11/12/2009 DATE: 11/12/2009 CORAM: HON. R. M. RWEYEMAMU, J. APPLICANT: - . J. FOR APPLICANT:- Present in person -20 RESPONDENT: FOR RESPONDENT: Slvester Lubala (Secretary General) CC: Josephine Mbasha ' COURT; Ruling delivered this 11/12/2009 in the presence of parties above. R.M. Rweyema JUDGE 11/.12/2009 6