SINPHYDRO LIMITED VERSUS EMMANUEL DAMIAN MATHIAS EXTENSION

IN THE HIGH OF COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA LABOUR APPLICATION NO 8794 OF 2024 (Originating from Labour Dispute No. CMA/DOM/41/2023/11/2023) BETWEEN SINOHYDRO CORPORATION LIMITED……………..APPLICANT VERSUS EMMANUEL DAMIAN MATHIAS ……………..…..RESPONDENT RULING Date of last Order: 12/09/ 2024 Date of the Ruling: 07/11/2024 LONGOPA, J.: This is a decision regarding extension of time to file a revision against the decision of the Commission for Mediation and Arbitration for Dodoma in Labour Dispute. The application was made through Notice of Application, Chamber Summons made under Rule 24(1), (2) (a), (b), (c), d), (e)and (f), (3) (a), (b), (c) and (d); Rule 56 (1), (2) and (3) of the Labour Court Rules GN No. 106 of 2007. The application is supported by an affidavit of Elizabeth Richard Manyanga, the Human Resources Officer of the applicant. 1|Page The Notice of Application and Chamber Summons have two prayers namely: 1. That this Honourable Court may be pleased to extend time within which the applicant can file Revision in Labour Dispute No. CMA/DOM/41/ 2023/1 1/2023 out of time. 2. Any other Order(s) the Honorable Court deems proper to grant in the circumstances of the Application. To address the matter in viva voce hearing the applicant and respondent enjoyed the legal representation whereas the applicant enjoyed the legal service of Mr. Matimbwi Joseph, learned advocate while the respondent had the service of Mr. Charles Magai, learned advocate. It was argued that the applicant has instituted this application for extension of time to file revision against an Award of the Commission for Mediation and Arbitration in Labour Dispute No CMA/DOM/41 / 2023/ 11/ 2023 out of time under Rule 24(1), (2)(a), (b), (c ), (d), (e ) (f), (3)(a), (b), (c) and (d) and rule 56(1), (2) and (3) of the Labour Court Rules GN No 106 of 2007. The same is supported by the affidavit of one Elizabeth 2|Page Richard Manyanga who is the Human Resource Officer of the applicant. The applicant adopted the contents of the affidavit of this Elizabeth Richard Manyanga to form part of the submission before this court. It was argued that the relevant paragraphs in that affidavit are Paragraph 3.6, 3.7, 3.8 and 3.9 which cater on facts relating to circumstances prevailing in the issuance of the CMA Award. It is submitted the Award was issued towards the end of the year thus the applicant failed to act timely as the last date of filing of the application for revision was falling on the New Year Eve. At first, the applicant filed an application for revision which later it came to the applicant’s knowledge that the application was filed at wrong forum namely the High Court of Tanzania Labour Division at Dodoma instead of the High Court of Tanzania Dodoma District Registry as revealed in Paragraph 3.8 of the affidavit. There were sufficient grounds that made the applicant to fail to institute the matter timely. The failure to prefer the application for revision filing timely was not based on the negligent action of the applicant. The reasons stated in the affidavit in support were beyond control of the 3|Page applicant. It was the prayer by counsel for the applicant that this application be granted so that both parties are heard on merits in labour revision intended to be preferred. The respondent adopted the counter affidavit of the respondent one Emmanuel Damian Mathias to form part of the submission before this Court. It was reiterated further that the basis of the applicant's prayer is Paragraphs 3.6- 3.9 inclusively of the affidavit. It was humble submission of the respondent that the matter in CMA that is Award in Labour Dispute No CMA/DOM/41/ 2023 /11 / 2023 was heard inter partes thus both parties were aware of the dates necessary. It was argued that on 09/10/2023 CMA issued a last scheduling order that the Award delivery shall be on 13/11/ 2023 thus both parties were aware of the date of Award. Therefore, it is not correct that CMA informed parties on Short Text messages (SMS) as stated in Paragraph 3.6 of the affidavit. It was stated that even if the CMA did send the short text messages to the parties, the same was done in good faith just to remind the parties as the Award delivery date was set in presence of the parties on 4|Page 09/10/2023 thus the respondent and applicant had full information on the date of the Award delivery. It was argued that on paragraph 3.7 of the Affidavit does not specify the date of the Award collection by the applicant herein. While in Paragraph 3.6 the applicant indicates that award was supplied/ given to the applicant in 20/ 11/ 2023, the same is different with Clause 3.7 of the same affidavit that reveals that the award was availed on 17/11/ 2023 thus it is not clear as to when exactly the same was received. In Clause 3.8 of the affidavit stated that extension of time was filed on 11/ 01/ 2024 to a wrong registry. Assumably, it is correct and the filing was within a correct registry, yet the applicant by that date was late by 11 days thus applicant has failed to account for the delayed time from 1st January 2024 to 11th January 2024 when the alleged application was filed in wrong registry. It is not disputed that proper application was filed on 18/04/ 2024 which is the instant application. This application has been preferred out of time for an unaccounted time of five months. 5|Page The respondent stated that there was assertion of illegality somehow in course of arguing the application. However, in the case of Megabuilders Ltd versus DPI Simba Limited, Civil Application No. 319/16 of 2020, CAT at page 9 stated that illegality must be in record and not otherwise. The illegality issue has no merits as in the records of the CMA there is nothing that the applicant was informed through SMS, except there are lucid scheduled date of delivery of the Award. The respondent also cited the principle in Lyamuya Construction Ltd versus Board of Registered Trustees of the Young Christian Association, Civil Application No 2 of 2010, CAT at page 8 set the criteria/ principles to be adhered to in determination of extension of time. In the instant application, none of the criterion exists as the application does not meet any of the criteria. It was thus respondent’s submission that this application be dismissed in its entirety without costs. In rejoinder, Mr. Matimbwi Joseph restated that criteria of extension of time are met including the overwhelming chances as there are issues to be heard on merits of the revision. 6|Page Further, it was emphasized that the affidavit in support of the application has stated about the delayed days by accounting them revealing that delay was not negligent but it was because there are some of action taken by the applicant. In the supporting affidavit, Paragraphs 3.6 to 3.10 have aspects that form the basis of application for extension of time. It states as follows: 3.6 That the award before the commission was delivered on 13/11/2023 and the applicant was informed through message that the award was ready for collection from mobile No. 0654- 959297 on Friday and on 20/11/2023 the applicant successfully collected the said award. The messages and the said Award are hereto attached and marked as ANNEXTURE A 1 collectively for which leave is sought to form part of this application. 3.7 That counting 42 days from when the award was received by applicant on 17/11/2023 the applicant was 7|Page supposed to file her revision on 01/01/2024, which fall in the New Year Holiday. 3.8 That the applicant filed her application for extension of time to file revision out of time and stay of execution electronically on 11th January 2024, but the application is still pending to date as it was addressed mistakenly to High Court Labour Division at Dodoma instead High Court Dodoma District Registry. Attached hereto is the filing status in the judiciary e-filling system marked as ANNEXTURE A 2 for which, leave is sought to form part of tis affidavit. 3.9 That I discovered that the application was sent to wrong destination hence did not received by the court. When I made inquiries from a court official namely Fatma at Dodoma High told me that the application is still pending as was directed to High Court Labour Division instead of High court Dodoma. 8|Page 3.10 That, the applicant wants to challenge the decision of the Commission, but upon inquiries she was advised by Advocate Tesiel Kikoti, that since the matter is time barred, I can apply for an extension of time to file revision out of time hence this application. 3. 11 That, I make this affidavit in support of the Notice of application for extension of time and in support of the prayers sought in the Chamber Summons. 3.12 That for the interest of justice, the applicant prays before this Court that this application of extension of time be allowed as the applicant has a great chance of success in the intended revision. It is settled principle of law that extension of time involves discretion of court which can only be exercised where a sufficient cause exists. Rule 56(1), (2) and (3) of the Labour Court Rules, GN No 106 of 2007 provides for extension of time can be granted on demonstration of a good cause by the applicant. 9|Page The Courts have articulated a good cause or sufficient reason for extension of time. For instance, in the case of Meis Industries Ltd & 2 Others vs Twiga Bankcorp (Misc. Commercial Cause No. 243 of 2015) [2016] TZHCComD 2127 (18 February 2016) (TANZLII), at page 6, the High Court noted that: It must be put clear that this court has discretion to extend time under section 14 of the Law of Limitation but such extension can only be exercised if sufficient reason has been given by an applicant. Only sufficient cause for the delay, and not sympathy, will make an application of this nature succeed. In John Harald Christer Abrahamsson vs Exim Bank T. Limited & Others (Civil Application No. 468/16 of 2022) [2024] TZCA 130 (27 February 2024) (TANZLII), at pages 4-5, the Court of Appeal reiterated the principle in exercising discretionary powers. It stated that: It is trite law that, extension of time is a matter of the discretion of the Court which must be exercised 10 | P a g e judiciously according to the facts of each case. See; Mwita s/o Mhere v. Republic [2005] T.L.R. 107 and Ngao Godwin Losero V. Julius Mwarabu, Civil Application No. 10 of 2015 (unreported). It is also common that, in applications for extension of time, the Court is required to consider whether or not sufficient cause for delay has been shown to warrant the exercise its discretion to grant the extension of time. There is, however, no definition of what amounts to "sufficient cause" but in determining whether in a particular case, sufficient cause has been established or not, a number of factors have to be taken into consideration depending on include; whether the applicant was diligent, reasons for the delay, the length of the delay, the degree of prejudice to the respondent if time is extended, whether there is a point of law or the illegality or otherwise of the impugned decision. 11 | P a g e In the case of Attorney General vs Raksha Gadhvi & Others (Civil Application No. 147/01 of 2022) [2024] TZCA 10 (30 January 2024) (TANZLII), at pages 6-7, the Court of Appeal stated that: The position of the law is settled that an issue of illegality of the impugned decision constitutes good cause for extension of time. In Principal Secretary Ministry of Defence and National Service v. Devram P. Valambia [1992] TLR 387 the Court held: “In our view when the point at issue is one alleging illegality of the decision being challenged, the Court has a duty even if it means extending the time for the purpose to ascertain the point and if the alleged illegality be established, to take appropriate measures to put the matter and the record right" In the case of Henry Jalison Mwamlima vs Robert Jalison Mwamlima & Others (Civil Application No. 652/06 of 2022) [2023] TZCA 17949 (13 December 2023), the Court of Appeal reiterated that: 12 | P a g e As to what exactly constitutes "good cause" has been left to the discretion of the Court. Essentially, there is no hard and fast rule in establishing it. Nevertheless, the case of Lyamuya Construction Company vs Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported) has laid down some factors to be considered when determining "good cause". These are as follow: -"(a) The applicant must account for all the period of delay; (b) The delay should not be inordinate; (c) The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take; and (d) If the Court feels that there are other sufficient reasons, such as the existence of a point of law of sufficient importance; such as the illegality of the decision sought to be challenged. 13 | P a g e In the instant application, the applicant seems to rely on the assertion that it preferred an application for revision in a wrong court that caused delay. First, the applicant obtained the award on 17th November 2023 which was nearing end of the year. Second, that the applicant filed an application for extension of time on 11th January 2024 but the same was in a wrong forum. It is on record that, the Award was delivered on 13th November 2023 which was well known to the parties before the date of delivery. The period of six weeks from the date of the Award would expire around 25 th December 2023. The applicant was required to account for every day of delay for failure to act timely from 14th November 2023 up to period before end of the week ending up in 31st December 2023. The applicant did not act within the whole permissible time to challenge the award. The law requires that to show a sufficient cause the applicant must account for every day of delay. There is nothing on the affidavit nor oral submission regarding cogent explanation of failure by the applicant to prefer application for revision within time allotted by the law. There is no 14 | P a g e tangible reason to demonstrate a period extending from end of December 2023 to 5th May 2024 when the application was preferred. It is settled opinion of this court that the delay of about five months or so is inordinate delay for labour matters that are time bound. Thus, the applicant cannot not be heard to have stated a sufficient cause in the circumstances. There is conspicuous failure of the applicant to account for every day of delay as required by the law. As the time to file the revision came to an end in early January 2024 but the application was preferred sometimes in May 2024 The applicant purports to have enquired to a Court Official whose designation are not disclosed. This is a mere assertion that is not substantiated by the applicant. It was expected that the named person would affirm/swear an affidavit to such effect to demonstrate that the applicant had ever filed an application to a wrong forum. Such absence of the affidavit to support the assertion makes this averment a mere statement with no proof. 15 | P a g e In the circumstances of the application, it is lucid that there are no good grounds warranting this Court to allow extension of time. I am in concurrence with the respondent that the applicant failed to provide a good cause for the extension of time. The affidavit does not reveal any substantive, cogent reason for the failure to file the revision timely and to initiate the application for extension of time It is so ordered. DATED at DODOMA this 7th day of November 2024 E.E. LONGOPA JUDGE 07/11/2024. 16 | P a g e