20170322 TZHC Dar es Salaam3

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM MISC. CIVIL APPLICATION NO. 396 OF 2016 SHAFH ISMAIL CHILUMBA ... ........................ .... APPLICANT

VERSUS MMI STEEL MILLS LTD ................................... RESPONDENT

RULING B.R. MUTUNGI, J: The applicant Shafii Ismail Chilumba has filed an application for extension of time within which to file an appeal out of time. The application is supported by the Chamber Summons and the Affidavit deponed by the applicant himself. In his affidavit the applicant stated that, he was an employee of the respondent since July 2007 up to October 2014 when his employment was terminated after he was /' invo ✓ed in an accident at the work place and lost a fore 1 arm: Having encountered the accident he reported the matter to the Ministry of Labour and he was paid Tsh.170,891 /=. Aggrieved by the small amount paid the applicant filed civil case No.33 of 2012 at Kisutu Resident 1 .......,_, ( J_ Magistrate Court. The case was dismissed by the presiding magistrate on 17th April 20 l2 and the applicant was directed to refer the matter before the Director General of the Workers compensation fund (WCF). He also stated that after he was so directed in the ruling delivered by the Resident Magistrate he went to the Ministry of Labour and Employment and he was told that the workers compensation fund was in the process of being tabled and advised to wait. Having waited in vain he went to seek for legal assistance before the legal and human rights centre. He was unsuccessful until when he was rescued by the legal education and research network who wrote a letter to

the workers compensation fund seeking for advise on how the applicant could be assisted as directed by the resident magistrate. The reply from the workers compensation fund was that, the applicant's claim was raised when the Workers Compensation Fund (WCF) was not in operation. He could in the circumstances not be helped. The applicant through the assistance of legal education and research network 2 wrote a letter to the minister for legal affairs applying to be allowed to appeal or apply for revision out of time. - The applicant was unsuccessful and the time for appealing against the decision of the Kisutu Resident Magistrate Court had lapsed. In view therefore he is seeking for the assistance of the court to grant him leave so that he can extend time to appeal out of time. In conclusion he stated that, the cause of delay was due to following up the matter at the Ministry of Labour and Workers Compensation Fund believing that he would succeed. In support of the application the applicant reteriated what he stated in his affidavit but added that his delay in filing an appeal was due to the reason that he was making follow- up of the matter at the Ministry of Labour and Workers Compensation Fund believing that he would succeed as directed by Kisutu Resident Magistrate, Hon. Riwa. He added that had it not been the directives of the court he would have appealed within time. He drew

the attention of the court to the decision of Wiliam Shija v Fortunates Masha (1997) TLR 213 where the 3 ,_ application for extension of time was rejected due to the negligence of the counsel. Adopting the decision of the Court Appeal in the above decision, the applicant contended that he is not an advocate and there was no negligence on his part in adopting the ·correct procedure since he was- dully directed by the Resident Magistrate. He also insisted that the misdirection by the trial magistrate, creates a point of law worth consideration in granting the applicant the extension to file an appeal out of time. He cited various other cases in establishing his argument including the case of Principle Secretary of Defence National Service vs Devram Valabhia [1992] TLR 185 (CAT) and the case of Transport Equipment Ltd vs DP Valambhia [1993] TLR 91 CAT. He lastly submitted that, in the view of the case of Michael Lessani Kweka vs John Eliafye [1997] TLR 152 CAT which held that the court has powers to grant an extension of time if the applicant indicates sufficient ground, he be granted his application as he has sufficient grounds as demonstrated in his submission. 4 The respondent in his written submission resisted the application and stated that, the applicant should blame himself not the court for his failure to appeal in time. He argued that from the series of events the

applicant spent most of his time seeking assistance from the legal institutions without following the laid down law. He also stated that for the application of extension of time to be granted the court should consider whether there is sufficient reasons not only for the delay but also sufficient reason for extension of time, see the case of Republic vs Yono Kapunda and 9 others (1983) TLR 84. It is therefore his argument that, 1n the instant application, the applicant has no sufficient reason as the ruling directed him to refer the matter to the Director General for the workers compensation fund but not to various legal institutions. He further submitted that the court order the applicant is seeking to challenge should have passed the court procedure not otherwise. He notified the court that after the ruling the applicant lost interest in the case that is the major reason why he never bothered to appeal in time. 5 He insisted that the applicant started struggling to appeal more than two years after the ruling was delivered. According to him had the applicant been interested in appealing he would not have taken that long struggling over the same matter. In support of his argument he cited. the case of Tango Cement Company Ltd. Vs Jumanne D. Masangwa and Amos A. Malwanda Civil Application No.6 of 2001 (CAT) unreported where the application was dismissed for having been brought

out of time with no valid explanation. The learned counsel for the respondent also submitted that the application at hand has no sufficient reason to warrant grant of extension of time. Further has no chances of success since is it indisputed that after coming into force of the Labour relation Act No.6 of 2004 all labour matters are to be referred to (CMA). Lastly he submitted that the failure by the applicant to appeal in time was due to his own negligence. He therefore prayed the present application be rejected and dismissed. In emphasizing his point he cited 6 the case of National Bank of Commerce vs Sadrum Meghji [1998] TLR 503. Having carefully gone through the submission advanced by the learned counsel for the applicant and the defendant, the issue pending before this court for determination is whether the filed appiication shouid~be granted or not. It is the Cardinal principle of law that in determining whether or not to allow an application for extension of time to appeal out of time the court has to consider if the applicant has demonstrated sufficient reasons in support of his prayer. This is the requirement of law laid down under section 14(1) of the Law of Limitation Act Cap 89 R.E.

2002. In the instant application the applicant stated that the reason for his delay was due to the misdirection by the decision delivered by Hon. Riwa, R.M. which referred the applicant to forward his matter to the Director General of the workers compensation fund (WCF). In so doing he ended up going through various offices and eventually found himself out of the time to appeal against the said ruling. 7 I agree with the learned counsel for the respondent that the application for extension of time can not be granted if the applicant was negligent for his failure to appeal in time. However, in this instant application I hasten to agree with him that the applicant was negligent. The record reflects the applicant was directed through the ruling delivered by Hon. Riwa RM. to refer the matter to the Workers Compensation Fund (WCF) where he ended up receiving confusing advise which led to his failure to appeal in time. In my view had it not been the directives from The ruling delivered by the Resident Magistrate Kisutu (Riwa RM) my position would have been different. Further considering the fact that the applicant is a lay man, it is my considered opinion that his reasons for delay are sufficient. Lay as he is, it was natural that he was bound to follow the court's directives. It goes without saying, the applicant has indeed advanced reasonable and sufficient reasons for

the extension sought. I will not discuss whether the intended appeal has the chance of success or not as it is pre-mature to discuss the 8 same and it will be pre-emptying the intended appeal if . discussed at this stage. In conclusion the extension of time to appeal out of time is hereby granted. The same to be done within 30 days from today. In the circumstances of the case, each party to bear own costs. d ~ ~ ✓• B. R. Mutung1

JUDGE 22/3/2017 Read this day of 22/3/2017 in presence of the applicant in person. ~ B. R. Mutungi i

JUDGE 22/3/2017 RIGHT OF APPEAL EXPLAINED. 9