Shamim Kilolo

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DODOMA MISCELLANEOUS LABOUR APPLICATION NO. 14/2023 (Arising from Labour Disputes No. CMA/SGD/MJN/20/2022 before the Commission for Mediation and Arbitration) SHAMIM ALLY KILOLO......................................................APPLICANT VERSUS NATIONAL MICROFINANCE BANK PLC (NMB)............ RESPONDENT RULING Date of Last of Order: 6/6/2024 Date of ruling: 16/7/2024 MASABO, J.:- By a chamber summons filed under Rule 24(1), 24(2)(a), (b), (c), (d), (e) and (f); 24(3)(a), (b), (c), (d), 55(1) and (2) and 56(1), (2) and (3) of the Labour Court Rules G.N No. 106 of 2007, the applicant has moved this court praying for enlargement of time within which to file an application for revision of a ruling of the Commission for Mediation and Arbitration (CMA) for Singida which dismissed her application for condonation. Accompanying the application is an affidavit deponed by Lazaro Joseph Hukumu who is identified as the applicant's advocate. From this affidavit it is deciphered that, the applicant is aggrieved by the decision of the CMA which dismissed her application for condonation on 20th September 2022. After the dismissal order, she launched an application for revision before this court on 6th July 2022 and the same was registered as Application for Revision No. 16 of 2022. Page 1 of 10 Unfortunate to her, the application was struck out at the infancy stage on 27/7/2023 after her counsel conceded to the respondent's preliminary objection that the application was incompetent for suing a nonexistent party. Still determined to pursue her right the applicant intended to restore her application for revision but could not timely reinstitute it due to the ailment of her counsel who was sick from 2nd August to 24th August 2023. Later, on 4th September 2023, she filed the present application. The application was contested by the respondent through a counter affidavit deponed by its principal officer. The hearing of the application proceeded by way of written submissions. Both parties had representation. The submission for the applicant was filed by Mr. Lazaro Joseph Hukumu and for the respondent by Olivia Kazabi, both learned counsels. Opening his submission, Mr. Hukumu recited the above summarized substance of his affidavit. He then referred the case of Lyamuya Construction Company Ltd vs Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 02 of 2010 [2011] TZCA 4 TanzLII and submitted that this court has discretion to enlarge the time. The discretion is judicial and must be judiciously excised according to the rules of reasons and justice and not according to private opinion or arbitrarily. He proceeded that in the present case, it has been demonstrated through paragraphs 6, 7, 8 and 9 of the Page 2 of 10 affidavit that, the applicant was vigilant in pursuit of her right but the fate was not on her side. Her application for revision was filed on time but it was struck out for incompetence. Immediately thereafter, her counsel fell sick on 2nd August 2023 and as of 24th August 2023, he had not recuperated well. As a result, she failed to prepare and file her application on time. She filed the present application on 4th September 2023. Further. Mr. Hukumu argued that, for an application for extension of time to be granted a good cause must be demonstrated and this includes sickness. Citing the case of Masunga Mbegeta & Others vs The Honourable Attorney General & Another (Civil Application No. 173 of 2019) [2022] TZCA, he argued that sickness is accepted as one of the grounds for extension of time and since in the present case sickness has been demonstrated, the application should sail. In the alternative, he submitted and argued that the present delay is a technical delay because the applicant spent most of her time in pursuit of the application which was struck out for incompetence. This shows she was negligent and it suffices as a good ground for extension of time as held in the case of Fortunatus Masha vs. William Shija and Others (Civil Appeal No. 43 of 1996) [1997] TZCA 51 TanzLII. Therefore, she should be excused and allowed to file her application out of time. The respondent's counsel was sternly opposed. He adopted the respondent's counter affidavit and submitted that, indeed, the court has discretion for extension of time but such discretion is judicial and must be judiciously Page 3 of 10 exercised upon a good cause being demonstrated. He amplified that, the term good cause has not been defined but in view of the case of the Lyamuya Construction Company Ltd vs Board of Registered Trustee of Young Women's Christian Association of Tanzania (supra), when a court is invited to determine whether a good cause has been demonstrated, it is expected to consider whether the applicant has fully accounted for the period of delay; whether the delay is inordinate; whether the applicant has shown diligence and not apathy negligence or sloppiness in the prosecution of the action he intends to take and whether there are sufficient reasons such as the existence of a point of law of sufficient importance such as illegality of the decision sought to be challenged. With reference to the applicant's affidavit, he submitted that the applicant has deponed that the delay is technical and that it was occasioned by the sickness of his counsel. Referring to the case of Masunga M beg eta & Others vs The Honourable Attorney General & Another (supra), he argued that sickness is a good ground for delay but does not exonerate the applicant from accounting fully for the duration of delay. In the present case the applicant failed this requirement because the application for revision was struck out on 27th July 2023 and her counsel fell sick on 2nd August 2023. Between these dates there are 5 days but the applicant did not bother to account for them. Again, she did not account for the period between 24th August 2023 and 2nd September 2023. The omission, he argued, offended the law that the delay of even a single day must be fully accounted for. He Page 4 of 10 added that the sickness was not that of the applicant but of his counsel which should not be accepted as an excuse as the applicant could have instructed another advocate to prepare and file her application. Alternatively, he argued that the annextures appended to the affidavit should not be accorded weight because all they show is that the counsel, Mr. Lazaro Joseph Hukumu, was treated as an outpatient on three different days. They do not show that he was either admitted in the hospital or excused from duty. Thus, they cannot be relied upon as proof of the counsel's inability to draft and file the application on time. In the foregoing, he submitted and prayed that the application be dismissed with costs. The ultimate issue for determination from this rivalry submission is whether the application has merit and should be allowed. The law is settled that for expeditiousness and finality of litigations, the rules of procedure prescribing the time within which a litigant is to take a certain legal action must be obeyed and strictly complied with (see Ratnam v. Cumarasamy (1964) 3 All ER 933). In that regard, and as correctly submitted by both counsels, where the court is clothed with discretion to enlarge the time to allow the institution of a matter out of the prescribed time limitation, it is trite that, the discretion should not be exercised arbitrarily. It should be judiciously exercised according to the rules of reason and justice the overriding consideration being the existence of a good cause for delay. As stated in Ngao Godwin Losero vs Julius Mwarabu (Civil Application No. 10 of 2015) [2016] TZCA 921, TanzLII:- Page 5 of 10 "..... , as a matter of general principle that whether to grant or refuse an application like the one at hand is entirely in the discretion of the Court. But, that discretion is judicial and so it must be exercised according to the rules of reason and justice." The term good cause has no universal definition and depends on the peculiar circumstances of the case. But, from a plethora of authorities in this subject, it is now settled that for purposes of applications for extension of time, the existence of a good cause is established by looking at numerous factors, including whether the applicant has accounted for all the period of delay, whether the delay is inordinate; whether the applicant has demonstrated diligence and not apathy, negligence or sloppiness in prosecution of the action; and existence of a point of law or sufficient importance such as the illegality of the decision sought to be challenged (See Lyamuya Construction Company Ltd Versus Board of Registered Trustee of Young Women's Christian Association of Tanzania (supra), Ngao Godwin Losero v Julius Mwarabu (supra), Zahara Kavindi and Another v Juma Swalehe & Others, (Civil Application No. 4 of 2017) [2017] TZCA 196 (unreported); Attorney General v Tanzania Ports Authority & Another, (Civil Application No. 87 of 2016) [2016] TZCA 897, TanzLII. The applicant's counsel has argued and I agree with him that, the delay occasioned by the applicant's bonafide pursuit of a wrong cause in the court of law, is excusable as it is regarded by law as a technical delay (see the Page 6 of 10 decisions of the Court of Appeal in Fortunatus Masha v. William Shija and Another [1997] TLR 154; Salvand K. A. Rwegasira v. China Henan International Group Co. Ltd., Civil Reference No. 18 of 2006, Zahara Kitindi & Another v. Juma Swalehe & 9 others, Civil Application No. 4/05 of 2017, Yara Tanzania Limited v. DB Shapriya and Co. Limited, Civil Application No. 498/16 of 2016, Samwel Kobelo Muhulo v. National Housing Corporation, Civil Application No. 302/17 of 2017 (all unreported), Bharya Engineering & Contracting Co. Ltd v. Hamoud Ahmed Nassor, Civil Application No. 342/01 of 2017 and numerous others. To answer the ultimate issue above, this court, guided by the principles above and the material supplied by the parties, should first determine whether a good cause upon which to invoke the discretionary powers for extension of time has been demonstrated. Starting with the duration of delay, the materials supplied vividly show that the delay is inordinate and inexcusable in the absence of a good cause as the intended application is for revision of a decision pronounced by the CMA on 20th September 2022 whereas the present application was filed on 3rd September 2023, almost a year later. A further examination of the materials supplied by both parties has revealed that the duration of the delay can conveniently be clustered into two periods. The first is reckoned from the date of the CMA ruling on 20/9/2022 to 27/7/2023 when the applicant's application for revision was struck out by this court. Since none of the parties has disputed the existence of the incompetent application and the fact that it was struck out on 27/7/2023, I Page 7 of 10 find this time excusable as the applicant did not sleep on his right or act negligently. Rather, he was in the corridors of this court in pursuit of the incompetent application. Hence, a technical delay. The second is the period between 27/7/2023 when the incompetent application was struck out to 3rd September 2023 when he filed the present application. In his affidavit, the applicant has asserted sickness as the sole ground for delay. I do not subscribe to his view for the following two reasons. First, much as the law regards sickness as good cause for delay warranting the exercise of the discretion for enlargement of time, the sickness envisioned is of the applicant himself and not of his counsel. As correctly submitted by the respondent's counsel, this ground is far-fetched and cannot be used to justify the enlargement of time as there is no legal requirement that a party should be represented by only one counsel. Put otherwise, nothing in the statute books prohibits a litigant from engaging another counsel to represent him or to perform a certain act while waiting for his counsel to recuperate. In my considered view, a party who abstains from taking legal action waiting for recuperation of his ailing counsel does so at his own risk and has none but himself to blame. Here, I draw inspiration from the provision of Order XVII rule 1(3) of the Civil Procedure Code, Cap 33 R.E 2019 which deals with the adjournment of cases owing to the illness of an advocate. It states: "...where the illness of an advocate or his inability to conduct the case for any reason, other than his being engaged in another Page 8 of 10 court, is put forward as a ground for adjournment, the court shall not grant adjournment unless it is satisfied that the party applying for adjournment could not have engaged another advocate in time;" [emphasis is added]. Much as this provision does not deal with drawing and filing of applications, it sheds sufficient light on what should be done when the litigant's counsel is ailing and by reason of such an ailment, he cannot perform his duties. It is crystal clear from this provision that, a litigant who finds himself in such circumstances should act fast and procure another counsel to represent him else, he would be assuming the risk and shall none but himself to blame. Accordingly, I do not see how the applicant herein can be excused for remaining idle for 22 days (from 2nd August 2023 to 24th August 2023) in the pretext that he was waiting for the counsel to recuperate. The duration was too long and more than sufficient for her to look for another counsel. Since she did not and has not disclosed the reasons that prevented her from engaging another advocate in these days, it is assumed that she was negligent and her application must fail. I may also add here that, even if her decision to stay idle waiting for recuperation of the counsel was acceptable as a good cause, the application would still fail as she did not account for the time between 27/7/2023 and 2/8/2023 and between 25/8/2023 to 3/9/2023. As correctly submitted by the respondent's counsel, her failure offended the cardinal principle that the delay must be fully accounted for even if it is for a single day, else there Page 9 of 10 would be no point in setting time limitations (see Octavian Rugerezi Francis vs Teachers Service Commission & Others (Civil Appeal No. 220 of 2021) [2024] TZCA 91 TanzLIL In the foregoing, the application is found with no merit and it is dismissed for want of good cause. As for the costs, the application being a labour application, there are no costs DATED and DELIVERED at DODOMA this 16th day of July 2024. J.L. MASABO JUDGE Page 10 of 10