tanzania electric supply co ltd vs anastazia mwambapa others 2022 tzhc 9792 1 april 2022

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (MOROGORO DISTRICT REGISTRY) AT MOROGORO MISC. LABOUR APPLICATION NO. 12 OF 2021 (Arising from CMA decision in Labor Dispute No. CMA/MOR/177/2017 deiivered on 29/1/2021) TANZANIA ELECTRIC SUPPLY CO. LTD APPLICANT VERSUS ANASTAZIA MWAMBAPA & 2 OTHERS RESPONDENT RULING Hearing date on: 22/3/2022 Ruling date on: 01/4/2022 NGWEMBE,J; Tanzania Electric Supply Company Ltd, famous known by its acronym as TANESCO lodged this application for extension of time upon which, may file Revision against the decision of CMA dated 29/1/2021. The application is supported by all necessary documents as per the Labour Laws and its Rules. However, same was resisted by the respondents through counter affidavit of their advocate Meswin Joseph Masinga. Upon completion of pleadings, this court invited both parties to address the court. Parties procured services of learned advocates, the Applicant was represented by learned advocate Norbert Beda, the Respondents were represented by learned advocate Meswin Masinga. Arguing In favour of the application, Mr. Norbert stressed that, the decision of the Tribunal (CMA) was full of illegalities and irregularities in respect to its jurisdiction and status of the Respondents. The Respondents being civil servants ought to exhaust first the ladder laid down In the Public Service Act before they could resort to CMA. Therefore, the Tribunal had no jurisdiction to admit and determine the dispute involving civil servants. To buttress his argument, referred this court to section 32A of Misc. Amendments Act No. 8 of 2016, which amendments ousted jurisdiction of CMA over disputes involving civil servants. Concluded by pointing out three area namely: (i) CMA lacked jurisdiction over the dispute; (ii) the Respondents forged qualifications of form four certificates; and (lii) the order of CMA to reengage the respondents was illegal. Finally, referred this court to the case of Hassan Abdulhamid Vs. Erasto Eliphase, Civil Application No. 402 of 2019. Rested by asking this court to grant orders sought in the Chamber Summons. In turn Mr. Meswin Masinga conceded that illegality is a good ground for extension of time, however contradicted the application by pointing out quite rightly, that illegality must be apparent and visible on the face of it. The issue of jurisdiction was raised and conclusively decided by CMA. Raising it on appeal is irregular and improper. Arguing on the grounds for delay, the learned advocate pointed that, the decision of CMA was made on January, 2021 but this application was made on 12/8/2021, equal to 195 days. Such delay was caused by inaction and negligence of the applicant. Therefore, the application should be dismissed. Insisted on this point by referring this court to the case of Meneja Mkuu 21^^ Century Textile Ltd Vs. Owen Ntimbwa and Others, Labour Enquiry, No, 72 of 2007. Upon summarizing the arguments of both parties and upon critical review of the arguments advanced by learned advocates of both parties, and upon perusing of affidavit of the applicant in line with the counter affidavit of the Respondents, I am convinced that this application has merits. In fact, the applicant has raised quite important legal issues which cails for this court to have access and decide. For instance, the issue of jurisdiction of CMA to admit and determine labour disputes involving civil servants is a valid legal point, but also whether the Respondents were/are civil servants in respect to Public Service Act?. The second issue is related to qualifications of the Respondents to be reengaged with TANESCO, a public institution, is again a valid legal point calling for this court to look at. I have no slight doubt, our law is well developed and indeed settled, when there is allegation of illegalities on the decision intended to be revised or appealed against, this court has a legal duty to grant extension of time with a view to allow the applicant to appeal or apply for revision in this court or Court of Appeal. The purpose is to allow the courts of records to identify and correct those illegalities and put the law in a right perspective. This position was promulgated by the Court of Appeal in the famous case of VIP Engineering & Marketing LTD and 3 others Vs. Citi Bank (T) LTD/ Consolidate Civil Reference No. 67 & 8 of 2006(CA) held;- "M/e have already accepted it as established law in this country that where the point of law at issue is the illegality, or otherwise of the decision being challenged that by itseif constitute sufficient reason within the meaning ofruie 8 ofthe rules for extending time''. In the same vein It was repeated in the famous case of Transport Equipment LTD Vs. DP Valambhia [1993] T.L.R 91 held:- 'When the point at issue is one alleging iiiegaiity ofthe decision being challenged, the court has a duty even if it means extending time for the purpose to ascertain the point and if the alleged iiiegaiity be established, to take appropriate measures to put the matter and the record right". Since the applicant has strongly argued on lack of jurisdiction of CMA to hear labour disputes involving civil servants and the qualifications of the Respondents to be reengaged as per CMA decision, I find these are sufficient cause to extend time. Moreover, I have no iota of doubt that jurisdiction of any court or tribunal is a cornerstone of any action before it. If the court or tribunal assumed jurisdiction which does not have, obvious the whole proceedings and its decision will be nullified by a superior court. Likewise, if the court's order or Tribunal cannot be executed without risk of faulting the law, same will be revised or nullified on appeal. In this application, the applicant has raised both, jurisdictional issue and difficulties to comply with the Tribunal's order due to disqualifications of the Respondents to be reengaged to work with TANESCO. These are valid points of law, which attract serious consideration by any competent court of law. For that reason, I find merit to this application for extension of time I therefore, proceed to invoke my discretion to grant extension of time to lodge an appeal out of time within 10 days from the date of this ruling. In the circumstance, it is just and equitable to order each party to bear his own costs. I accordingly order. Ruling delivered in chambers this 1^ day of April, 2022 PJ. NGWEMBE JUDGE 01/4/2022 Court: Ruling delivered in chambers on this 1^ day of April, 2022 in the presence of Mr. Nelson Mtabaya HR TANESCO COMPANY for Applicant, and Ms. Levina Mtweve for Masinga Advocate for the Respondents. Right to appeal to the court of appeal explained. P.J. NGWEMBE Krt. •s' JUDGE ■ I 01/4/2022