MISC NO 25410 OF 2023 TANESCO VRS CHARLES M

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANL LABOUR DIVISION AT DAR ES SALAAM MISC. LABOUR APPLICATION NO. 25410 OF 2023 REFERENCE CASE NO. 20231110000025410 BETWEEN TANZANIA ELECTRIC SUPPLY COMPANY LIMITED ................. APPLICANT VERSUS CHARLES M. C H A LI..................................................... RESPONDENT RULING Date of last Order: 16/ 04/2024 Date of Ruling: 17/ 05/2024 MLYAMBINA, J. This ruling is in respect of an application for extension of time to lodge Notice of Review against the Order of this Court delivered on 13th July, 2021 by Hon. Teye, Deputy Registrar (DR) in Execution No. 253 o f 2020. In the referred decision, the Honourable DR ordered the Respondent to be reinstated by the Judgement Debtor forthwith and payment of salary arrears. The application proceeded by way of written submissions. In the course of this application, Mr. Stanley Mahenge, State Attorney appeared for the Applicant. On the other hand, the Respondent enjoyed the services of Mr. Dennis Mwamkwala, Personal Representative. Submitting in support of the application, Mr. Mahenge argued that grant or not of an application for extension of time is a discretionary power of the Court. That, the discretionary has to be exercised judiciously upon the Applicant demonstrating sufficient cause or reason. In support of his submission, he cited the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported). He also cited the case of FINCA (T) LIMTED and Another v. Boniface Mwalukisa, Civil Application 589/12 of 2018, Court of Appeal of Tanzania (unreported), where the Court (Korosso, J.A) had the following to say at page 6 of the decision: It is settled that where extension of time is sought, the Applicant will be granted, upon demonstrating sufficient cause for delay. Conversely, it is also settled that sufficient cause sought depends on the deliberation of various factors, some of which revolve around the nature of action taken by the Applicant immediately before or after becoming aware of that the delay is imminent or might occur. It was Mr. Mahenge's submission that the Applicant reason for the delay is pegged on issue of illegality. He argued that illegality is one among the sufficient cause to warrant the indulgence of the Court to extent time. This position is expounded in the number of cases including the case of Principal Secretary. Ministry of Defence and National Service v. Dervan Valambia [1992] TLR 182. Mr. Mahenge added that; according to the recent decision of the Court of Appeal in Charles Richard Kombe v. Kinondoni Municipal Council, Civil Reference No. 13 of 2019, Court of Appeal of Tanzania at Dar es Salaam (unreported), illegality has to be based on the limitation of time, jurisdiction of the Court and where there is allegation that the Applicant was denied the right to be heard. He said, in the present Application, illegality is based on the limitation of time. It was Mr. Mahenge's submission that the order of Hon. Teye, DR is tainted with the illegality to the effect that the execution application was filed after expiry of prescribed time of 12 years from when the decision of the Minister was granted. That, the decision of the Minister was delivered on 19th March, 2008 and the Application for Execution No. 253/2020 was filed on 18th June, 2020 after lapse of 12 years and three Months. Thus, the Application for execution was time barred. He stated that this fact has not been disputed by the Respondent, but he only alleges that, the period of 2 years, 2 months and eleven days are excluded because the decision of the Minister was communicated to the Respondent on June, 2010. Mr. Mahenge was of argument that allegations of excluding days are unfounded and of no merit as the same was supposed to be ground for extension of time by the Respondent to file his execution out of time. He maintained that, time started to run against the Respondent on 19th March, 2008 when the Minister delivered the decision and this Court erred to entertain an application which was filed out of time contrary to Item 20 o f Part II to the Law o f Limitation Act, Cap. 89 Revised Edition 2019. It was Mr. Mahenge's further submission that; even if the application was filed on time, there was nothing to be executed as the order of the Minister was already complied by the Applicant. To sum up, he urged the Court to grant the application. In response to the application, Mr. Mwamkwala submitted that; when the matter is referred to the Minister for reference, it is heard in the absence of the parties as per Section 45 o f the Security o f Employment Act [Chapter 387 Revised Edition 2002] which provide that: The parties making a reference to the Minister shall be entitled to submit Memoranda in support of their respective cases, but shall not be entitled to appear in person or by Advocate or Other representative before the Minister. It was argued that due to the above provisions of the law, the parties to the reference became aware of that decision only after being served with that decision. The decision of the Minister was made during the transition period from the administration of laws repealed to the administration of the matters in the Employment and Labour Relations Act [Chapter366 Revised Edition 2019] (herein ELRA), whereby Section 103 (3) o f the ELRA, provides that: The third schedule governs the transition from the administration of the laws repeated under paragraph (1) to the administration of the matters in this Act. It was further argued that the third schedule of ELRA exclude the limitation period of time from the date of the decision of the Minister up to the date of receipt as per paragraph 13(7) and 13(8) which provide that: 7. The date of the decision of the Minister shall be the date indicated in the prescribe form, 8. Notwithstanding the provisions of any other written laws, for the purpose of computation of limitation of time, the period between the date of decision and the date of receipt of that decision shall be excluded. Mr. Mwamkwala went on to submit that the decision of the Minister was made on 19/03/2008 and was received by the Applicant on 27/11/2009 as evidenced by Annexure CC-1. He added that; it is theApplicant who was ordered by the Minister to inform the Respondent of the outcome of the decision. Thus, the period between 19/03/2008 to 27/11/2009 is one year and seven months. That period must be excluded, because it is governed by law, it is not supposed to be excluded by an application for extension of time as stated by the Applicant. To buttress his submission, Mr. Mwamkwala referred the Court to the case of Hassan Twaib Ngonyani v. Tazama Pipe Line Limited, Civil Appeal No. 201 of 2018, Court of Appeal of Tanzania. It was further contended that Annexure marked OSG-2 attached to paragraph 5 of the Applicant Affidavit, is not a proof of payment. He added that, the order of the Minister dated 19/03/2008 was not made under Section 42 o f Cap 387 (supra) which provide an option to the Applicant to pay the Respondent instead of reinstating him. He stated that the decision of the Minister which concern this matter, was made under Section 27 (2) o f Cap 387 (supra). The order which is made under Section 27(2) is final and conclusive. It has no provisions for an option. It is executed in the Court as a decree as provided under Section 28(1) (a)(b) (c) o f Cap 387 (supra). To strengthen his submission, Mr. Mwamkwala cited the case of Hassan Twaib Ngonyani v. Tazama Pipe Line Limited, Civil Appeal No. 201 of 2018, the Court of Appeal of Tanzania. Mr. Mwamkwala maintained that since 19/03/2008 when the order for reinstatement was issued up to now, the Applicant has not complied by that order. Hence the Applicant's application has no merit. He therefore urged the Court to dismiss the application with costs. In rejoinder Mr. Mahenge maintained that the contested Execution was time barred. That the Respondent did not submit any proof that he was served with the Minister's decision on 2010. I have dully considered the submissions of the parties. I find the Court is called upon to determine only one issue; whether the Applicant has demonstrated sufficient reason for the grant o f the extension prayed. As rightly submitted by Mr. Mahenge, there is no fast and hard rule as to what amount sufficient cause, but the Court of Appeal has come-up with the guidelines to be considered by the Court to grant or deny an extension of time. The guidelines were well and lucidly expounded in the case of Lyamuya Construction Company Ltd v. Board of Registered Trustee of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010(Unreported) at p.6-7, where it was held that: As a matter of general principle, it is in the discretion of the Court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice, and not according to private opinion or arbitrarily. On the authorities however the following may be formulated: - 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. d. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged. The Applicant strongly submitted that the delay in this application is purely based on the ground of illegality of the challenged decision. I subscribe to numerous decisions cited to justify grant of the application on the stated ground. Again, in the case of Joyce Joram Lemanya v. Patricia Patrick Lemanya, Civil Application No. 430 of 2021, Court of Appeal of Tanzania, Dodoma the Court had this to say regarding ground of illegality: ... in any application of the present nature, where illegality is raised regarding the judgment sought to be revised, the Court is enjoined to grant the application for extension of time to pave the way for consideration of the matter, (vide the Principal Secretary, Ministry of Defence and National Service v. Devram Valambhia [1992] T.L.R. 185). It is however important to draw attention to the requirement that, it is always upon the Applicant to demonstrate that the said illegality is apparent on the face of the record. Furthermore, in the case of Charles Richard Kombe v. Kinondoni Municipal Council, Civil Reference No.13 of 2019, Court of Appeal of Tanzania at Dar es salaam (unreported), it was stated: ...it is our conclusion that for a decision to be attacked on ground of illegality, one has to successfully argue that the Court acted illegally for want of jurisdiction, or for denial of right to be heard or that the matter was time barred. In the instant application, the illegality stated is that the Execution application was filed out of time. Both parties have submitted at length for and against the issue raised. Looking at the records, it is undisputed by the parties that Execution No. 253 o f 2020 arose from the decision of the Minister which was delivered on 19/03/2008. It is also undisputed that the execution application was filed after 12 years and three months where by on the face of it, the execution was filed beyond the prescribed period of 12 years. Both parties have raised arguable issues to prove and disapprove that the matter was time barred. It is my view that the arguments call for determination by this Court. The Applicant strongly submitted that there is no proof as to whether the Respondent was served with the Minister's decision on the alleged date, while on the other hand, the Respondent maintains that from when the decision was delivered to the date when he was served with the Ministers decision are excluded by the law. At this juncture the Court cannot make a determination as to whether the execution was time barred or not. Under such circumstances, it is my view that the issue of illegality raised is sufficient enough for the grant of the application at hand. In the result, I find the Applicant has presented good cause for the Court to exercise its discretion to extend time as prayed. Thus, the application is hereby granted. The Applicant is granted fourteen (14) days leave to file the intended application from the date of the order. It is so ordered. Y.J. MLYAMBINA JUDGE 17/05/2024 Ruling delivered virtually and dated 17th May, 2024 in the presence of learned State Attorney Stanley Mahenge for the Applicant and Dennis Mwamkwala, Personal Representative for the Respondent.