REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

ARUSHA SUB REGISTRY

LABOUR DIVISION

AT ARUSHA REVISION NO. 35 OF 2023 SUMIT THAKUR................................................................................. APPLICANT

VERSUS SUNFLAG TANZANIA LIMITED................................................... RESPONDENT

JUDGMENT 24/05/2024 & 26/06/2024 NDUMBARO, J The applicant calls upon this court to call for the records of the proceedings and the Ruling in application number CMA/ARS/ARS/55/2023 delivered by Hon. Arbitrator Mwebuga on 28th April 2023. The application is supported by a sworn affidavit of the applicant and strongly opposed by the counter affidavit of one Emmanuel Mgoma, Human Resource Officer of the respondent. Going by the applicant's affidavit, this court has noted that the grounds for this revision can be summarized as follows; i 1. That the Hon. Arbitrator erred in law and fact for failure to consider the evidence adduced by the applicant that the delay to file his complaint on time was caused by the respondent.

2. That, the Hon. Arbitrator erred in law and facts for not considering the evidence which clearly showed that it was the action of the respondent of cancelling his resident permit on the same date of termination which caused the applicant to be deported to his home country (India).

3. That the Hon. Arbitrator erred in law and facts for failure to consider the evidence adduced by the applicant that after being deported to India he secured visa and other compliance before coming back to Tanzania as required by the law. The respondent on the other hand refuted the applicant's allegations and stated that the ruling delivered by the Commission for Mediation and Arbitration (CMA) was conformed with the principles of the law. It was further added that the applicant herein did not give sufficient reasons for his lateness at CMA, moreover, the respondent contended that the applicant did not give an account of the delay of a total 190 days. Further to that, the respondent contended that the applicant has not given evidence to justify that the respondent cancelled the applicant's resident permit on the day of termination. The respondent concluded that the applicant herein had a good chance to file his complaint on time even while in India on the reason that he had an advocate who could have represented him over the matter. When the matter was called on for hearing, the applicant enjoyed legal services from Upendo & Co. Advocates on the other hand, the respondent was represented by advocate Henry Simon Katunzi assisted by advocate Laura Paul Macha. Parties agreed that the application be disposed orally, and I shall consider the parties' submissions while disposing

the application. Having considered the records of this application, submissions of both, the applicant and respondent carefully, I find the issue for determination by this court is whether the applicant adduced sufficient cause for his delay to file his complaint at the Commission. It is an established principle in law that, sufficient reason is a pre­ condition for the court to grant extension of time as per Rule 56(1) of the Labour Court Rules G.N. No. 106 of 2007. Furthermore, it has been the position of the law that an application for extension of time is entirely in the discretion of the court to grant or 3 refuse it. This discretion however has to be exercised judicially and the overriding consideration is that there must be sufficient cause for so doing. From decided cases a number of factors have to be taken into account, including whether or not the application has been brought promptly; the absence of any or valid explanation for delay; lack of diligence on the part of the applicant, and whether the applicant has accounted for each day of delay. I have carefully read the applicant's application for condonation, in his affidavit at paragraph 4, the applicant stated that on 16th July 2022 the respondent breached the employment contract by terminating the applicant without prior notice and booked the air ticket without the applicant consent and forcefully removed him out

of the country to India with escort. The applicant went further to state that on 10th January 2023 the applicant managed to come back to Tanzania to make a follow up of his right to the respondent in vain. It should be noted that parties are bound by their own pleadings and that no party should be allowed to depart from his pleadings thereby changing his case from which he had originally pleaded. Moreover, the court also is bound by the pleadings of the parties as they are themselves. See the decision of the Court of Appeal of Tanzania in the case of Maria Amandus Kavishe vs Norah Waziri Mzeru & another, Civil Appeal No. 365 of 2019 CAT at Dar es Salaam Reported Tanzlii. I have stated the above principle for reasons that as I went through the ruling of the Commission, it is unfortunate that the Hon. Arbitrator misdirected himself by deriving the reasons of the delay form the parties' submissions and not from the pleadings. In that premise, this court while discussing whether there were sufficient reasons for delay to warrant this court to grant condonation, shall be directed by the parties' pleadings in particular, the applicant's affidavit. As I have already stated above, the applicant's reasons for his delay are expressed through paragraph 4 and 5 of his affidavits and in summary this court has grasped that the applicant's delay was culminated by his immediate and forcefully

repatriation to India without his prior notice. Nevertheless, I have also had time to go through the attachments in the applicant's application. The applicant attached his employment contract and as I went through it at paragraph 11 it is stipulated that upon termination, the employee shall receive one - way passage by tourist class by air to return. Moreover, I also went through the termination letter which was styled as "relieving letter", this letter demonstrated that the applicant was to be relieved from his duties by 16th July 2022 and among the entitlements that he was eligible to receive from the respondent as per the terms of his employment contract was a travel ticket back home. Equally, the applicant also attached a copy of his air ticket dated 16th July 2022 the same date when he was relieved from his duties. Above all, I have also gone through the attached letter of cancellation of the applicant's working permit. The same appears to have been written to the Regional Immigration Officer on 18th January 2023. From the above series of events narrated above, I am afraid to agree with the applicant's reasons for delay demonstrated in his affidavit that after the breach of his contract without his prior notice, the respondent booked him air ticket without his consent and that he was forcefully removed out of the country to India. I am saying so because of the attached

documents which the applicant himself attached to his application showing all that transpired before he was repatriated. First, I find it in his contract that it was agreed by the parties that upon termination of the employment, the applicant will receive an air ticket to return him. Moreover, even in his termination letter which is dated 12/07/2022, it was clearly stated that the applicant herein was entitled to a travel ticket back home. Besides that, cancellation of the applicant's working permit was not done immediately after termination, and in fact it was cancelled even after his return back to Tanzania. It is therefore my supposition that, everything that emerged was planned, and the applicant was very aware of what was happening and he cannot claim that he was taken by surprise as he had time to discuss with his employer since he already knew from his employment contract that after termination he will be issued with an air ticket to return back. From the above circumstances, and guided by the principles of the law in granting extension of time, I am not persuaded by the reasons advance by the applicant, and in that event, I join hands with the decision of the Commission that the application is without merit for lack of sufficient reasons. That said, the application is hereby dismissed for want of merit. No order as to costs is issued. Ordered accordingly.