REVISION APPLICATION NO 27664 OF 2023 SALUM MUBA NGUNENGUNE VS CASHON RISK MANAGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 27664 OF 2023 CASE REFERENCE NO. 20231214000027664 BETWEEN SALUM MUBA NGUNENGUNE...................................... ...............APPLICANT VERSUS CASHON RISK MANAGMENT ........................ ........ RESPONDENT JUDGEMENT Date of last Order: 30/04/2024 Date of Judgement: 03/05/2024 MLYAMBINA, J. Before the Court is an application for revision to set aside a Ruling from the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/DSM/TMK/14/4/2023 delivered on 05/12/2023 by Hon. Kazimoto. The record shows that the application emanates out of the following context; on 2nd September, 2017 the Applicant entered into an oral employment contract with the Respondent. He was employed to work as a security guard at the Respondent's company where he worked for about 4 years. That, on 31st May, 2021 the Applicant received a notice to end the contract. It showed that his contract was for one year and that the Respondent had no intension to renew. It is alleged that, since the Applicant had no written contract, he was shocked to receive the news for ending the contract. Aggrieved by the notice of termination, the Applicant referred the matter to the CMA where he accompanied his complaint with the application for condonation. Unfortunately, the application for condonation was refused by the Arbitrator. Being dissatisfied on the ruling on refusal to grant condonation, the Applicant filed the present application on the following grounds: i. That, the Honourable Mediator erred in law and facts by stating that there was no sufficient ground for being granted extension of time without considering the fact that the Applicant was pursuing cases in good faith. ii. That, the Mediator erred in both law and facts for failure to analyze evidence of the Applicant and failure to recognize that the Applicant was at liberty to change the nature of the dispute. iii. That, the Honourable Mediator erred in law and fact in issuing illogical and contradictory award. The application proceeded by way of written submissions. Before the Court, the Applicant was represented by Ms. Rose Charles Nyatega, learned Counsel. On the other hand, Mr. Saulo Jackson Kusakala, learned Counsel appeared for the Respondent. Arguing in support of the first ground, it was Ms. Nyatega's submission that the Applicant followed stipulated procedures however, the matter is before the Court due to technicalities. She stated that the Applicant being aggrieved with the termination, on 30th June, 2021 he timely filed his first complaint before the CMA which was registered as CMA/DSM/TEM/116/2021. She said the matter was for unfair termination and was filed within 30 days pursuant to Rule 10 (1) and (2) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f 2007. It was submitted that the referred dispute was struck out because it was initiated by an old referral form (CMA FI). Thus, a new dispute was filed on 27th September 2021. She was of the submission that in the later dispute, the Respondent raised a preliminary objection that he was wrongly sued. The CMA upheld the preliminary objection and struck out the dispute for suing the wrong party. After the striking out, the Applicant filed another application which was registered as CMA/DSM/TMK/212/2022. The referred application was also struck out for wrong citation of the law. Ms. Nyatega went on to submit that, thereafter, the Applicant filed another application for condonation which was registered as CMA/DSM/TMK/48/2023, unfortunately the prayers for extension of time was denied because the Applicant changed the nature of the dispute which was stated on the first CMA referral Form No. 1. It was Ms, Nyatega's argument that the delay in this application is technical delay which constitute a sufficient cause for extension of time when it is proved. In support of her argument, she cited the cases of Fortunatus Masha v. William Shija and Another [1997] TLR 154, Victor Binamungu v. Godfrey Kabaia, Civil Appeal No. 602 of 2017 (unreported) and the case of Amani Girls Home v. Isack Charles Kanela, Civil Application No. 325/08 of 2019 Mwanza (unreported), where the Court of Appeal held that: A diligent pursuit of the appeal through unsuccessful applications is a cause sufficient enough for grant of extension of time. Ms. Nyatega's strongly argued that, the Applicant was pursuing his case all this time tirelessly. Thus, it is proper for this Honourable Court to consider that the Applicant has been prosecuting with due diligence. The second ground was that; the Mediator erred in both law and facts for failure to analyze evidence of the Applicant and failure to recognize that the Applicant was at liberty to change the nature of the dispute. It was Ms. Nyatega's submission that the Applicant was at liberty to change the nature of the dispute after following proper procedures. She added that since the dispute was improperly filed, the Applicant properly filed the new application together with the condonation as directed by the Hon. Arbitrator in his decision. It was further submitted that the Honourable Mediator misconceived the reasoning given by Hon. Ngalika, E (Arbitrator) when referring to the Ruling dated 6th September 2021. That, in the referred decision, the Arbitrator gave the Applicant an option to change the nature of the dispute when filing a proper referral CMA form as reflected at page 5 of the decision. The third ground was that the Honourable Mediator erred in law and fact in issuing illogical and contradictory Award. Ms. Nyatega submitted that the Hon. Mediator failed to consider the Applicant's attachments/evidence including the Ruling (Uamuzi mdogo) before Hon. Ngalika, E. Arbitrator. She said, failure by the Hon. Mediator to consider the said Ruling led to the illogical and contradictory ruling. That, the Hon. Mediator relied on the referral form no. 1 only and did not make reference to the ruling which gave the Applicant a chance to file a new application after he followed proper procedures. It was strongly submitted that the dispute was struck out due to technicalities which constitutes sufficient cause for the grant of an application for condonation. By relying to Section 21(2) o f the Law o f Limitations Act [Chapter 89 Revised Edition 2019] (to be referred as LIA), the Applicant urged the Court to grant the application. The cited Section 21 (2) is to the following effect: In computing the period limitation prescribed for any application, the time during which the Applicant has been prosecuting, with due diligence, another civil proceeding, whether in a Court first instance or in a Court of appeal, against the same party, for the same relief, shall be excluded where such proceeding is prosecuted in good faith, in a Court which, from defect jurisdiction or other cause of a like nature, is unable to entertain it. Ms. Nyatega continued to submit that the Applicant has been struggling to be granted permission so that he could be heard the application on merit. With the aid of overriding objective, she urged the Court to grant the application. She added that the Applicant has overwhelming chances of succeeding in the main application. Thus, the application be granted. In response, Mr. Kusakala strongly submitted that there is no technical delay in this case and that the Applicant failed to account for each day of the delay. He argued that extension of time is purely within the discretion of the Court as stated in the case of Yusuf Sawe & Hawa Dada v. Hadija Yusufu [2002] Court of Appeal. The Counsel further cited numerous Court decision where reasons which may justify extension of time were highlighted including the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Yung Women Christian Association, Civil Application NO. 2 of 2010 Court of Appeal (unreported). Mr. Kusakala continued to submit that the delay is afterthought construed because the Applicant's decision to change nature of dispute is not backed up with any evidence. It was Mr. Kusakala's strong position that the Applicant was supposed to change the nature of dispute in the second application and not on the third as he did. He therefore urged the Court to dismiss the application for lack of merits. In rejoinder, Ms. Nyatega reiterated her submission in chief which will be taken on board in deciding this application. I have considered the rival submissions of the Counsel of both parties, CMA and Court records as well as relevant laws. Since the grounds for revision are interrelated, they will all be determined in one issue; whether the Applicant demonstrated sufficient ground for the grant o f condonation. The time limit for filing disputes at the CMA is governed by Ruie 10 (1) and (2) o f the Labour Institutions (Mediation and Arbitration) Ruies o f2007 GN, No. 64 o f2007which is to the effect that: (1) Dispute about the fairness of an 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 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. The above provision is self explanatory. Disputes of unfair termination must be filed within 30 days from the date of termination, other disputes must be referred to the CMA within 60 days from when the cause of action arose. In the instant matter, as rightly analysed by Ms. Nyatega, after the termination on 31/05/2021 the Applicant timely referred his dispute of breach of contract at the CMA on 30/06/2021. Such dispute was struck out on 06/09/2021 because it was initiated with an old CMA FI. It was also ordered as follows: Pia, kwavile mlalamikaji mwenyewe ameeleza kwamba mgogoro uliuweka (sic) sio sahihi yaani kuvunjika kwa mkataba ninaona anahiari ya kubadilisha aina ya mgogoro kama ataamua kufungua kesi upya kwa kujaza fomu sahihi ya kufungulia mgogoro. In the above holding, the Applicant was granted permission to change the nature of dispute from breach of contract to unfair termination if he wished to do so. Notwithstanding the above permission, the Applicant proceeded with his nature of dispute, breach of contract and refiled an application which was accompanied by an application for condonation. Again, the refiled dispute was faced with preliminary objections that the Applicant cited wrong provisions of the laws and there was defective affidavit. The CMA upheld the preliminary objections, and on 14/02/203 the dispute was struck out. Again, after the struck out of the application, the Applicant filed another dispute on 24/02/2023 where this time he indicated the nature of dispute was unfair termination. Since the dispute was late filed, it was accompanied with an application for condonation. The application for condonation was denied because the Applicant changed the nature of dispute. He therefore, filed the present application. Now the question to be addressed is; whether the circumstances o f this case fits within what is termed as technical delay. This principle of technical delay was stated in the case of Fortunatus Masha v. William Shija and Another (1997] TLR 154, where it was held that: I am satisfied that a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time, but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and fresh appeal has to be instituted. In the circumstances, the negligence if any really refers to the filing of an incompetent appeal not the delay in filing it. The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determine the timorousness of applying for filing the fresh appeal. In fact, in the present case, the Applicant acted immediately after the Pronouncement of the ruling of this Court striking out the first appeal. Again, in the case of Victor Binamungu v. Godfrey Kabaia, Civil Appeal No. 602 of 2017 (unreported), at page 6 where it was stated that: The Applicant should not be blamed for technical delay as his initial application was struck out. Also, in the case of Hamisi Mohamed (Administrator of The Estates of The Late Risasi Ngawe) v. Mtumwa Moshi (administratix of The Late Moshi Abdallah) (Civil Application 407 of 2019) [2020] TZCA 13 it was held that: As such, the time taken by the Applicant in seeking leave, that is, counting from the time the Applicant's initial application for leave was struck out to the time when the application for leave was found to be overtaken by operation of the law is in fact, a technical delay which is explicable and excusable ... After, the latter application was struck out the Applicant took hardly a month to file the present application seeking for extension of time to file an appeal. In other words, the Applicant was diligent all along in pursuing his rights to appeal ... For the foregoing reasons, I find the Applicant was diligent in pursuing his appeal and he is entitled for an extension of time. Accordingly, I grant the application. Applying the above principle in the cited cases, it is my view that this case also fits within the meaning of technical delay, though the Applicant kept on filing incompetent applications, he has been acting diligently. When the incompetent applications were struck out, he n immediately refiled another application within 12 to 15 days. Those efforts are worth to be considered by the Court. It is my further observation that the Applicant should not be punished on a mere fact that he did not change the nature of dispute in the second application. Indeed, that ought to have been done as rightly stated by the Arbitrator. But in determining applications of this nature, broader meaning of justice has to be considered. Up to now, the Applicant's dispute is not determined on merit and he has been in CMA corridors pursuing his right. Thus, for the interest of justice let him be heard on merit. This is also the Court of Appeal position in the case of Amani Girls Home v. Isack Charles Kanela, CAT-Civil Application No. 325/08 of 2019 (Mwanza - unreported), where the Court of Appeal held that: A diligent pursuit of the appeal through unsuccessful applications is a cause sufficient enough for grant of extension of time. In the premises, for the reasons explained herein above, the application is hereby granted. The case file is remitted back to the CMA to proceed on merit. It is so ordered. Y.J. MUTCMBINA JUDGE 03/05/2024 Judgement pronounced and dated 3rd May, 2024 in the presence of the Applicant and Counsel Suzan Mwansele holding brief of Saulo Kusakala for the Respondent. Y.J. MLYAMBINA JUDGE 03/05/2024