REVIEW APPLICATION NO 15022 OF 2024 TANZANIA ELECTRIC SUPPLY LIMITED VS CHARLES M

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVIEW APPLICATION NO. 15022 OF 2024 CASE REFERENCE NO. 202406251000015022 BETWEEN TANZANIA ELECTRIC SUPPLY LIMITED.......................................... APPLICANT VERSUS CHARLES M. CHALI................................................................. RESPONDENT RULING Date of last Order: 08/ 07/2024 Date of Ruling: 01/ 08/2024 MLYAMBINA, J. The Applicant herein above being aggrieved by the order of this Court, Hon. Teye, Deputy Registrar, dated 13th July, 2021 has applied to this Court for Review of the said Order under Rule 27 (7) o f the Labour Court Rules, 2007, (G.N No 106/2007). The application has been made by way of chamber summons under Section 94(1) (b) o f Cap. 366 Revised Edition 2019, Ruie 24(1), (2), (a), (b), (c), (d), (e) and (0, 24(3) (a), (b) (c), (d), and Ruie 27 (1) (2) (c) (5) and (7) o f Labour Court Rules, GN. 106 o f2007) on the following grounds: 1. That, the Order is tainted with illegality in that the Application for execution was hopelessly time barred as the same was filed out of the time prescribed by the law. 2. That, the order is tainted with illegality in that the Court had no jurisdiction to determine that matter. 3. That, the Court ordered reinstatement of the Respondent without loss of remuneration in respect of the order of the Minister which was already complied by the Applicant. Wherefore, the Applicant prayed for the Court to review an Order of this Court to reinstate the Respondent without loss of remuneration in Application for Execution No. 253 o f2020 delivered by Hon. A Teye Deputy Registrar on 13th July, 2021 and proceed to quash and set aside the said order and proceedings thereto. The brief facts as can be deduced from the supporting affidavit of Farida Sued, the Principal State Attorney of the Applicant and other records are that; the Respondent herein was employed by the Applicant on 21st March, 1995 as an Assistant Accountant. He was terminated from employment for misconduct on the 27th June, 2006. The Respondent being aggrieved by the decision of the Applicant referred the matter to the Reconciliation Board which was decided in favour of the Applicant. The Respondent was further aggrieved with the decision of the Reconciliation Board and appealed to the Minister of Youth, Development Work and Sports who ruled in his favour and ordered the Respondent to be reinstated on the 19th of March, 2008. The Applicant opted to pay the Respondent statutory compensation of twelve months' salary in lieu of reinstatement together with one -month salary in lieu of notices and his salaries from the date of termination to the date of decision of the Minister. On the 18th of June, 2020, twelve years and three months after the Minister's decision, the Respondent herein filed an Application for Execution No. 253 o f 2020 executing the decision of the Minister made on 19th of March, 2008 which was already executed. On 13th July 2021, the application for execution was heard ex-parte and the Respondent's prayer of reinstatement and payments of salary arrears were granted accordingly. Upon being served with the order of execution, the Applicant filed an Application for extension of time within which to file a notice of review out of time, the Applicant which was granted accordingly. Following extension of time by the Court, on 30th May, 2024 the Applicant filed Notice of Review. On 11th June, 2024 the Applicant was supplied with the certified order of the Court. Thereafter, this Court granted the execution without knowledge that the Applicant had already paid the Respondent in compliance to the order of the Minister way back in 2010. The Ministers' decision was made on 19th March, 2008, whereas the application for execution was filed on 18th June, 2020 after 12 years and three months. Nevertheless, the Court proceeded to order reinstatement of the Applicant and payment of salary arrears. The Applicant further stated that this Court had no jurisdiction to entertain the said application for execution. The Respondent in aware the order of the Minister was compiled by the Applicant, that is why he did not file application for execution all along since the decision of the Minister dated 19th March, 2008 until 18th June, 2020. From the afore facts, there are three legal issues to be determined by this Court: (a) Whether the Order of the Court dated 13th July, 2021 is tainted with illegality in that the Application for execution was hopelessly time barred as the same was filed out of the time prescribed by the law. (b) Whether the order of the Court dated 13th July, 2021 is tainted with illegality in that the Court had no jurisdiction to determine that matter. (c) Whether the Order of the Court dated 13th July, 2021 ordered reinstatement of the Respondent without loss of remuneration in respect of the order of the Minister which was already complied by the Applicant. The application was disposed by way of written submissions. The Applicant argued the first and second grounds jointly to the effect that the execution before the Deputy Registrar was filed beyond twelve years contrary to Item 20 part III o f the Schedule to the Law o f Limitation Act CAP 89 Revised Edition. 2019. The decision of the Minister was issued on 19th March, 2008. The Application for execution was filed on 18th June, 2020 being 12 years and 3 months thus beyond the limited time. It is on that basis, the Applicant submitted that the Court was not clothed with jurisdiction to determine the execution and thus liable to be dismissed with costs under Section 3(1) o f the Law o f Limitation Act Cap 89 Revised Edition 2019ty allowing this Application. In reply, the Respondent asserted inter alia that the decision of the Minister dated 19/03/2008 was made after the matter was referred to him for his reference. That, such reference is heard in absence of the parties as per Section 45 o f the Security o f Employment Act (SEA) Cap 387 Revised Edition 2002 which provided 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 5 advocate or other representative before the Minister. It was the contention of the Respondent that the decision of the Minister was received by Applicant on 27th November, 2009 as per the letter dated 28th December, 2009. Thus, the decision had two orders against the Applicant: One, to reinstate the Respondent. Second, to inform the Respondent accordingly. Again, the Respondent contended that the decision dated 19/03/2008 was made during the transition period of the repealed law of Security o f EmploymentAct to the Law o f the Employment and Labour Relation Act. I have carefully considered the submissions of both sides. I do agree with the Respondent that the law of limitation require that in computing time of limitation the period between the date of decision and the date of receiving that decision must be excluded as per Paragraph 13(7) and 13(8) o f the third schedule o f the Employmentand labour Relation Act chapter 366 Revised Edition 2019\n Y\\cY\provide that: (7) The date of the decision of the Minister shall be the date indicate in the prescribed form. (8) Notwithstanding the provisions of any other written laws, for the purposes of computation of limitation of time, the period between the date of decision and the date of receipt of the decision shall be excluded. As such, it follows valid that the period of 1 year 8 months and 9 days, which is between 19th March, 2008 to 27th November, 2009 must be excluded in computing time of limitation. Due to the facts, Execution No. 253 o f2020 was filed within prescribed time, hence the Court had jurisdiction. The 3rd ground of review was to the effect that, the Order of the Court dated 13th July, 2021 ordered reinstatement of the Respondent without loss of remuneration in respect of the order of the Minister which was already complied by the Applicant. Upon delivery of the decision of the Minister, the Applicant opted to pay the Respondent statutory compensation of twelve month's salary in lieu of reinstatement together with one month's salary in lieu of notice. To the Applicant's dismay, the Respondent went ahead to file an application for execution of the said order of the Minister via Execution No. 253 o f 2020 after 12 years and 3 months seeking to enforce the Minister's order whereas the same was already complied to by the Applicant. Moreover, since the Execution Application proceed Exparte, the Applicant herein was unable to present the said facts, the Respondent on the other hand went on to mislead the Court into granting his prayer of reinstatement and payments of salary arrears. Thus, had the fact made known to the Court. The Deputy Registrar could not have allowed the execution. The Respondent herein cannot benefit twice from the same decision. To back up the submission, the Applicant cited the case of Transport Equipement Limited v. Devran P Valambia (1998) T.L.R. 90. In response, the Respondent had no valid submission in substance. I agree with the Respondent's submission that the decision of the Minister made under Section 27 o f the SEA (supra) was final and conclusive. I also agree with the Respondent that the dispute at hand emanated from a decision by the Respondent to summarily dismiss the Respondent for absence without leave under Section 20 o f the SEA (supra). It also true that an employer could only summarily dismiss an employee on account of breaches of Disciplinary Code and subject to the conditions set out in the Act. A person aggrieved from such decision, would refer the matter to the Board under Section 24(1) o f the SEA (supra) and on further dissatisfaction, to the Minister under Section 27 o f the SEA (supra). The decision of the Board of the Minister was final and conclusive, binding to the parties to the reference and could be enforced in any Court of competent jurisdiction as if it was a decree. However, the Respondent has not denied the fact that the Applicant paid the Respondent statutory compensation of twelve month's salary in lieu of reinstatement together with one months' salary in lieu of notice in full compliance of the Minister's order. On that premises, I agree with the Applicant that the Deputy Registrar's act of granting the execution led to the Respondent benefit twice from the same decision, which is not only illegal but it was granted without jurisdiction. In the end, the application is granted as prayed. The order of Hon. Teye, Deputy Registrar of the Court dated 13th July, 2021 in Execution No. 253 o f2020 is hereby quashed and set aside for lack of jurisdiction. It is so ordered. Y.J. MLYAMBINA JUDGE 01/ 08/2024 Ruling delivered and dated 1st August 2024 in the absence of the Applicant, presence of the Respondent and his Personal Representative one Dennis Mwamkwala. Right of Appeal explained.