20170724 TZCA Dar es Salaam

j IN THE COURT OF APPEAL OF TANZANIA \~o ~G:1'1\'\JU\ . AI PAR :es SALAAM CIVIL APPLICATION NO. 60/18 OF 2017 TANZANIA BUREAU OF STANDARDS ......................................... APPLICANT VERSUS· ANITHA KAVEVA MARO ......................................................... RESPONDENT (Application for Extension of Time within which to serve upon the respondent necessary documents in the intended appeal from the judgment of the High Court of Tanzania, Labour Division at Dar Es Salaam) (Mipawa, J.) dated the 25 th day of November 2016 in Revision No. 35 of 2016 14th June & 2s th July 2017 NDIKA, l.A.: the Tanzania Court of Appeal Rules, 2009 ("the Rules''), the applicant named . ~ above . . .. . applies against the . respon_9ent , ••. •' for extension. -,·---·•·~ ·-:•·"• ... -~.., . .... ·-~"~"••:·-·.':'-··-·:·,-..·. .., ,,_, ., •' of time .- within,.... -~ .. ~----·-·••' ~-~:-..-:~-~-~".'_'................ ~'":'"" ._ ,. '• .. ,_,,_ · ·~- · ·: ·••c,,-,. ," ... ~- : :_'·:.~:·t:~ . .::;::~~:;\·//t:f0~~t\t::~::2:-::}~,>'. :~. letter requesting for a copy of proceedings arid Judgfhefit 6f' thefHigh'',.,., . ·.... · Court of Tanzania, Labour Division at Dar Es Salaam . (Mipawa, .. J.},dqte.d.,, . . .. .. . - . .. . ' ' ,- . . ·• ' ~ - ... 25 th November 2016 in Revision No. 35 of 2016. The application is .. . . ·- ·supported ·by-two -affidavits-r· one··deposea ·15y-..Mi-:-saptister-rv1·.· Bitaho, ·a 1 . Principal Legal Officer of the applicant; and the other one made by Mr. Yohana Mwaikambo, a Records Management Assistant of the applicant. In opposition to the application, the respondent filed her own affidavit in reply. The background to this matter may, I think, be stated briefly as follows: the respondent was, until her termination in 1st July 2015, the Director of Finance and Administration under a contract of service with the applicant. Aggrieved by the termination, she instituted an employment complaint against the applicant before the Commission for Mediation and Arbitration. The Commission ruled in favour of the respondent and ordered her reinstatement into her previous position. It also awarded her compensation as follows: first, payment of monthly salaries and allowances for the period from. . pt July-2015 . . ... . - until ---~ when she ·-. -~-. ·. ....• ~ _ is reinstated into her position; secondly, payment of monthly basic salary for twenty-four months being com~~~~a~on for_ u_n~ai~- ter_~i~ation,; .. ---·--··- . thirdly, payment of TZS. 400,000,000.00 b~i1Jg.-9eneralc:-damage~ i~=t U.eu. ~~ ... of reinstatement; and finally, benefits or'allowances for termination, in lieu of reinstatement, according to applicable employment and labour legislation. Resenting the Commission's award, the applicant lodged Revision No. 35 of 2016 before the High Court, Labour Division at 2 . Dar Es Salaam. In its decision dated 25 th November 2016, the High Court confirmed the order for reinstatement without loss of remuneration during the period that the respondent was absent from work due to the unfair termination but reduced the quantum of compensation as follows: first, the award of compensation for unfair termination was reduced from monthly basic salary for the period of twenty-four months to twelve months; and secondly, the grant of general damages was cut down from TZS. 400,000,000.00 to TZS. 200,000,000.00. In the end, the application for revision was dismissed. Still aggrieved, the applicant duly lodged notice of appeal on 8th . December 2016 in accordance with rule 83 (1) and (2) of the Rules. By . -.~ .... - . -· ·,· then, the applicant had already applied from the High Court for a cert!fied copy _of the judgment, de_cre~_im~Lproc~edings _vide its letter__ . dated 28 th November 2016, which was submitted on that day. Nonetheless, by the expiry of fourteen• •• days - after lodging ~ the notice • • ., • - .A • -· ~ •• ' of_ appeal upon the respondent. Nor did the applicant serve upon the respondent a copy of the letter requesting for a certified copy of proceedings within thirty days of the impugned decision. While non- 3 service of the notice of appeal amounted to a non~compliance with the dictate of rule 84 (1) of the Rules, the failure to serve the aforesaid letter within the prescribed time disentitled the applicant, in terms of rule 90 (2) of the Rules, from exemption from the limitation period for institution of appeals of the time required for preparation and delivery of the copy of the proceedings. It is upon this understanding that this application is made for extension of time to effect service of the aforesaid notice and letter upon the respondent. ~ " ,:-:-•:,<} -~·•· Rule 10 of the Rules, cited as.· the enabling provisions for this application, confers on this Court broad and discretionary power to enlarge the time limited by the Rules for doing any act authorized or required by the Rules where good cause is shown. While it may not be possible to lay down an invariable or constant definition of good cause so as to guide the exercise of the Court's discretion under Rule 10, the Court must consider the merits or otherwise of the excuse cited by the , .aPl?lic~nt for fqilJ17g to. rne.e.t .th~ limitation period prescribed for taking the._ .. - -- ~~ ....~--~....- ··- .._ . ~~ ..,,.._ required step or action. Apart from valid explanation for the delay, good cause would also depend on whether the application for e~tension of time has been brought promptly as well as whether there was diligence on the part of the applicant in the matter (see, for instance, this Court's 4 unreported decisions in Dar Es Salaam City Council v Jayanti lal P. Rajani, Civil Application No. 27 of 1987; Tanga Cement Company Limited v Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001; and Yusufu Same and Hawa Dada v Hadija Yusufu, Civil Appeal No. 1 of 2002). The essential question in this matter is, therefore, whether the applicant has shown good cause for the extension of time sought. The explanation given in the two supporting affidavits for the failure to serve the copies of the notice and the letter on the respondent within the prescribed time is that the applicant made every effort to serve the ~....... ,.._ ~ ... ,, ... . . -··. ...,., ....,i.....,,,.;~.--..-1.·• .. ~·--•..,: .. --._-/ ..,_.~ · .. ·• ·.·· ·--,~,,-- -..... -· ... ·.: . . •• -· -- . .,. . . -~- ..... ·. - .... ..,.·._-:..- . . •-:.,.:,;.-~:.£:/':"_".:f~.•"'f.·~-"? respondent personally at her place of r_~sidence but she-was nowhere. to •.: ' . ,,-~ be found. Mr. Mwaikambo, the applicant's official assigned to effect · · '_.,:. -service, particularly averred that after . fc1iHng .. .,, . to find the , _ -.~ .. - - respondent ' -·· .,- at'. .. :',~._,_.~-·-~.-- ; .... : .,. ,. - .·:.-.----:-·.-~··:,-• - where she was so that he could serve her with the two documents. While - , . . -~ .-~-----~ ~ ;; .. , , , ,.diodicating~ tbat .sh.e .w:as: .~t .the High,.Court ...~ttending.--to a., cas-(l;:;.:::.sbe.:~-•'c'....:-,.~:- instructed that the -documents ·be serVed' upon her through her advocates· whose names and place of business she did not disclose. In the circumstances, it is alleged that service became impossible as the 5 . - ..... -- --- - - ·---·- -- ·--. .. - - - . .... -·-· -· respondent subsequently declined to accept phone calls from Mr. Mwaikambo. In her affidavit in reply, the respondent refutes the applicant's explanation of the delay. She avers that the applicant could easily have served the documents upon her at her place of residence or through her advocates _as was the case in respect of other documents or processes served upon her during the previous stages of the dispute. She deposed that the applicant knew both her place of residence and the physical address of her advocates that she retained since the initial stages of the dispute. She denied to have refused to pick calls from the applicant. ' !, I" - '·i -·~""" ., .f', ~· . . . • . .. ··~ ......,;l'_•,:· .~ :_. . .·. . '. ,·· .. ,· . . ' ' . ;. .>.:;~4'b-ti:..:i:~Ji~?_ .~?f)~·-·:._~.... - apart from the· fa'tt that the respondent kept changiitg;:.:adtQt;,~tes., .at :- . -·- · ·.:·,· - ::___'.,_vadous stages of this :dispute,. it wa~Jf!lperative in term? _gf r~J:!~ ?2 (2) c:)f . > ••,•· -•·.;·_-,. :.·-·:~---·,. . 6 the Rules that the respondent be served with the copies personally. Personal service, he claimed, was impossible because the respondent was nowhere to be found. In addition, Mr. Mwitasi anchored the prayers for extension of time upon the contention that the intended appeal presents a serious point of law alleging the illegality of the impugned decision of the High Court. He elaborated that the said decision was manifestly illegal for awarding TZS. 200,000,000.00 as general damages in addition to the order for reinstatement of the respondent into her previous office contrary to law that the two reliefs cannot be issued concurrently. On this point, he cited two decisions of this Court: Kalunga . and Co.mpany Advoc~t;~s. .. . V .. . ; __ ;._., . . . . . . . _ • • ; • ..;~.,...... .. ... - -·. <i-• .,.,,.. . • -·· National Bank of Commerce Limited [2006} . TLR . 23'5 .. and Prfr1cipal .. : . -. .. · .. - . ·. . . . _; .. - .. - . . •. r·....,...... - • -•· ·, • •. .• ~ ..•..,- ~--~,.._~:"'-tr~~-~~"'"="'-~~--.'"'.""--;-~"".-•·:--.-.,.~~- ~.:--.-:_:-~ _--.,._-·~-.:-·;-:.,_•..,~·-:_... ,· Valambhia [1992] TLR 185 for the position that where there is a serious legal point involved or where the point of law at issue is the. jJlegality of . . .. : - ~. ~ -- '_,_ ~-.:~:;,.~--~ -;;~--''7:~ :~-:~~---~~'. ~~::-: ~~- ~::--~·--~:.-··.. ,... ···-· -:·~ ,-·~-:. ·- ~- ~:.:~~~~--:-._-_.,... _::------::--:;: ·_ '. •,.... • \ \.- ; --~~ • •:.. . . . -- • • J • ' ' • ._. • ·•• • • • ' • • .... ~ • • • ~· . , . .. ._ .. ,.the., decision_ .being .. chaJlenged, that .'.is::::·Sblf.fif_;ienLlecfslfH~-=fer--:--·§faAt1ri§:'~·-·~- ·. ·:·'.:::~. '"•'-"'I A-•• 0 ,., • _.,•-..---• •- - •· ·•-- .; ., -~-,...::i•-:,•-~7;-::~~:•<L J.~'.•,:~~-,;~:~~·~7:_._.a c~,,::::::·:<,,.• --·~•:•~::--•~--:_L•..:.::::.-/~.,:; :•: .... -~-; :.~• • . ' extension of time.' .·'. :\~·r::~'.~~-~t·;f~:tti\~{:-L~:~i::::~~:>:i .. contended:· that the applicant had no c~wse .· foi7 '"fa.iling to serve the. 7 documents on the respondent because it knew the respondent's place of residence as well as her advocates. While denying that the respondent had changed advocates since the commencement of the dispute, he added that in terms of rule 84 (2) of the Rules the applicant ought to have served the documents at the last known address of the respondent's advocates. Besides, Mr. Mushi took issue with the delay in the lodgment of this matter after the applicant failed to effect service of the two documents. He contended that while the letter applying for a copy of proceedings was dated and lodged on 28 th November 2016 and the notice of appeal dated and lodged on 8th December ·2016, the applicant waited until '15 th · February ~2017 to . _.k)dge this: . ,·:, . .,...,_,., •·, - •·· ..a . ~matter;~:Itf\~);;, - ,: . __ , • .,.,,, •• . . -. ~ -· - ~ ,. extension of time. It was the learned Counsel's view that":the',applic:anf~--:~ did not act promptly after the prescrib~ci" _times: for_ ·:lodg:i~g-·. ;th'~-~Ii,.G-~:·~-- -. . _· : - . ... -· ... - .. .. . : .. ~ - ' ·. . . ~ - .. .. . .......... :. ., __ .,. --·- .. (.l) .of. the. Rules,-servi~e- :On the respGndent-~0_4g;ht~_tf)if)av~e:::0:e.e0~~tle~-:-=:;--=.~--- ::. • • • --•~• ,- -~--- ~ • a,.,.,,_. __ ~••••~••,:.. -~~-- ----•~~-- - ~ : ' . " ::~< !-_;.•:.~,>•~~-.-••~.._-=:::~--~!~-:<~..•: ~ -:;-: . ~~~--~•.-, personally on her,,andthat service under rules ·22 (2) ~nii\·'s,Wtzj~ifrfrHO:gh":•·:.~ ·...•. _ - the respondent's advocates could only be made if personal service_ was impossible or difficult. He submitted further that e~~n if the _delay wa~ __ . ·. :.. ·-: . ~:·- not sufficiently explained, time ought to be extended-onthe QTOlfncltnar 8 the intended appeal involves a contention that the impugned decision is illegal for awarding compensation on top of the order for the respondent's reinstatement. He maintained that the two reliefs were alternative, not concurrent. Having dispassionately considered the learned rival submissions, I must say straightaway that I reject the applicant's explanation of the delay. As rightly submitted by Mr. Mushi, while the applicant might have failed to effect personal service of the two documents on the respondent, at her place of residence, in consonance with rule 22 (2) of the Rules, there was absolutely no reason why service could not be effected through her advocates whom she retained from the initial stages of the dispute. I am unpersuaded by Mr. Mwaikambo's deposition, for and on behalf of the applicant, that although the respondent asked on the phone for service to be effected through her advocates, he could not do so because she did not disclose the particulars -~ .... of the. advocates_ .~.h~ .. , - . ~~ ::.retained for the intended. appeal. -As submitted. bY--Mr;:-Mushi, -righ~!Y_~in=-·~--=-:-:: my view, even if the respondent had not· disclosed the identity of her advocates, the applicant should have effected service through the advocates that represented the respondent before the High Court in accordance with rule 84 (2) of the Rules. No explanation was given why 9 no attempt was made to effect service upon the said advocates, who, as it is clear at this point, have been. retained for the intended appeal before this Court. As already indicated, Mr. Mushi further criticized the applicant for not acting promptly in lodging and pursuing this matter. I agree with him. As the impugned decision of the High Court was handed down on 25 th November 2016, the letter requesting for proceedings filed on 28th November 2016 and the notice of appeal lodged on 8th December 2016, the latest deadline for serving copies of the two documents was on or about 27 th December 2016. As it turned out, tbe _appl~~ant _waited until . 15th February 2017 to lodge this application .. There .··was .."evid~~tly a·. . . . . .. • ". . , , ... ~.·. -· . . ··-:-. ...... -_ :·. ,· .. · .. - ...... period of about forty days of inaction. I am . mindful ... that -·· . . it is the .. . firmly.. . , .. . · -. - .~ - . - . -· entr:enched -position of th_is Court that a11y_~appliqtn_t _s¢.e.kH19. ~~t~!J.?Jon of _: _ -..,_~~;:a: . ,. • • • ,C•• o<#<o•,:,,_•;, __ , •• -- • • ,, • • •, . , . •.•,•"~•--•••~•-'•~ ' .,.... ; • .-• :-r-r; ;.. ••, ~ \-.. :.... ,•·,•-· ~•.. , ......~~~~-• .-.::.-.:•----.-~·•.- :-._~.':.!.,-;'",:·:'.. ;_,_ ~::. ~-••.: =·:_• •.=-•.· ·••:•., ....~~•~, .~l time is required to account for each day of delay. Indeed, the Court has _:. , .. :, .. : ,. -": ~atifa, lukio Mashilyo,::Civil. -Applic;alL&ci:::N.0:.~.:3_:cif200t,;~iini:epQ~edtby:-~:~t···~::~ • •·-, ,.. ,- ·• ~.•~.•·.-°; -•.• ,· •.. . - . •••.~ • .. ~- .. • •-~• <::.· <:,:• .. :~•.• .-..~••·•.~•:'~~::...:.;.::.;:-·••:•··~.~.:•:-•.C -~~:•··•• \.•'.• ..~ ~..-~,•;•,·:~.~,.. -~~~~:.:~_f.:.-~-'.'~~I :.. . . . ~\ ,,._- ..... -·~ : - .·. ··~.- .;... .. . ·.· ·:stating that: ~-•si'.'.,·,"';,,.;._s;.,,_:,;;~,,,".:·""'";'"'···~"'.--,,, ,, "Delay, of even a single day, bas:~:'to ··1Je ..·accounted for • otherwise there would. be .no::point of ha.ving rules· ... -·• 10 prescribing periods within which certain steps have to be taken. 11 On the basis of the foregoing analysis, I find no good cause for the delay in serving the two documents on the respondent. I now move on to deal with the applicant's contention that the High Court's decision intended to be challenged before this Court is fraught with an illegality and that for that reason time be extended. As already indicated, Mr. Mwitasi assailed the legality of the High Court's decision on the ground that it wrongly awarded TZS. 200,000,000.00 as general damages in a_ddi_t~~n- t~ __the:~_o_rq~r for reinstatement_ of the respondent into her_ previous. . .·office ·cont'ra·ry' .-to ...the .. ·· - law that the two reliefs could not be issued concurrently; -A_lthough the - ~ . - ·:: . ~-.---:~ :· :..·· ~- . ;.;-:_. :.,::_:-\ .,.-.::~~~:-~ ;.•:-.-:":._~ . ·:. -~ :· -· .. :_ •. ___ :· lea med· Ser:i - • ,.,. •- ior . State · Attor,ney -.-~ -- - did-·· -not cite,"a:Ay--le£iaf-0r,;:statt1t0ry -- -,.... ,._ ... -~, ... , ~b~sis:io_r~~-.:-·;.:_~~ . --:-:-:---::--~-~--:---,·_-~7-~~-;7~7~-,-..,-~..- _..... __..._;:-,_..,_ ~~- -;. ---~ his contention, I have no doubt that he had in his mind·.. -..se_ction 40 (1) of :;·._ -:-:.:~;,:·-:\"r~;:·:.:.·.·.. .. . : ... ._the:E-ml:)l0yr:nent_.·and: . L:abour Relations Ac;t;_~:?004.:.w.bJch,;provide-s;rernedi'es~~":·\::c.:.~:~:_::. -·---.•·-:~·-. ·· ~•~_-.:.~-·-~•-_:, ...-~ .. ·:··. .. ·. .. ..- , ~_, __ ~· ,'. ''If an arbitrator or Labour Court finds a termination is upfai9 _-lh~ .arbitrator or Court may order ih~·--JJ;{J;f/Jy~r- .- 11 f (a) to reinstate the employee fron1 the date the employee was terminated without loss of remuneration during the period that the employee was absent from work due to the unfair termination; or {b) to re-engage the employee on any terms that the arbitrator or Court may decide; or · (c) to pay compensation to the employee of not less than twelve months' remuneration.,✓ In International Medical and Technological University v Eliwangu Ngowi, Revision No. 54 of 2008, High.Court, Latiou'(-fi}vlsiort-·--·=.,., - -~.-_,_,,,...,._~~-,--~- .·-:.··,.·1-\; ·-:~~-._ ... _ considered .the above provisions and heid that the -reli~fs--thereur:ider·artL -_- _,' - • . . •.• . . ... ~ ·---~:,:.· .. :.,~:.,:.-.{.. :.,.. ,. __ ,.:. ·. -...._::·.:.::..:~'~-~-'.;.:. .t-:·~_.-_;,1~;,-._.: ...• ·- •. ·-; ... - i.: ~ ..'.:;. _..,._;;.. __ .• _, .-.-·,,.... ' .,. . . -:-· ... - -.discretionary .and- exclusive: of eacfl -ether-::~·-It:..:·Meleh:that~-~a>:"'''e:Ourt::-or~:::"'C"~~;c-• arbitrator was not bound to invoke the three reliefs itemized as (a), (b) . . ' . ' . , ' . ·. · .. ~~ .,. . ;, .. ,:.:.- . .··:;.:~----.... ~~-,1·,;':.. ·::.'.~1-~·,. .:>"."··;_.:~;.;.~·.,:··=~?:-.:·~~--;:..;.. · .· ,;·-:~'.;~'-· "", and (c) -seriatim, that· is, one afte·r the :other: ··.on· this·'._a·uthorityf-.:if-ls_ . -- - /i - · • • • •~ - -. • -~<~•-•A•••••• ~,;: ~,-:._.-,r--;< ,_.,:,f'• ~ •--• ••••~>-:•• .. •- • --• •--•• - - - - .Jo-. ••---••• ri- ,d, ••••.: ••• ••••- .·-· ~~g~~bt~ th~t~h~ tll~~~ ,;~~e~ies ~nd~~~~;;~{~;·{1;;~~·~fu~;;~~~f;~7:?"·: ;_ are alternative, not concurrent. Without prejudging the matter, I would say that it appears illegal that the High Court upheld the CQQ1"1I11:J,$.S1on's . · ,.~~-~r~f.-..;r,,,. 12 order of reinstatement of the respondent into her previous position concurrently with an award of damages for unfair termination. I am aware that in Principal Secretary, Ministry of Defence (supra), cited by Mr. Mwitasi, this Court held, at page 189, that: "when the point at issue is one alleging illegality of the decision being challenged, the Court has a du[Yt 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 straight " The above position. has .been restate9 .PY 'Jh.e. ..Co.1:ittJn . a..n..~m.b.e:r .oL: .: . ·-. :·. w ., ' - ,..,.· -:;,, • ~ ·~ • •• its decisions including VIP Engineering and Marketing Lilt~itectand'·· .:. ·_ .·: .'. . . . . - ···-··~. . ·•· .. ..:.:.:. -.. ·::· -.--.--::: .... . ·- ._ -.~ ···- -- . . -·· . . ··- . -··--···-·· . References Nos. 6, 7 and 8 of 2006 (unreported) and Lyamuya . . v-~ Board . .. . ..Construction -Com_pany -Limited . _, . . of· . Registeted: . Tftiste~s:-of~t/~?;:::r:: . . . ' .-. -.. --- .. - .. . . ..... - ~ - ~ ~- - '~:... . . .. . .~ . _:~- :. ~ · .·.voung. W~itlen's - Christi~n :·~:·i~~-6~-~ti~~-- .-rit??r§rtiari:ia[~:.:.Ci~iJ~~(r:~.-;~ . . .:. ~~- . ~- ~;:...;:.~_-:, .· -... ~ -;--;.,.;_ ..- ... :~.-·....,.:. ~~ Application No. 2 of 2010 (unreported). 13 On the basis of the foregoing analysis, it is my finding that even though good cause for the delay in serving the two documents upon the respondent was not shown, it is imperative that the applicant be granted an ·enlargement of time to serve the said documents so that the illegality alleged to be contained in the decision of the High Court can be investigated and determined. Accordingly, I grant the applicant fourteen days from the date of delivery of this ruling within which to serve upon the respondent copies of the notice of appeal and the letter applying for the proceedings of the High Court. Costs of this matter shall follow the event in the cause. -... " · ... ·.•,---- ··-.,·~-·· ...... -.....-•·· ·DATED at·DAR ES.SALAAM this 24tb day;of.Ju.ly 2017 .. G. A. M. NDIKA . · .- - - JUSTICE OF APPEAL----~--· I certify that this is a true copy of the original. v· -· \11/<l':..t+-F ~--,,,.----, - - ~- -. -_·•.··-.'•.ca ......... -~ --1-~ .. ,.. ~,._r;o.._ . ,,..,-:;,..•··· .. .,,-~. ··•,·"'--·~- ., ,. -:·. -·~:,_ ~---_~. -.,·_;~~~:~.--i-::..r· R _ . EGiSIR.AR:::~:~-~:,·~~--- . COURT OF APPEAL . ,,,. .. _ ... 14