TANZANIA NATIONAL ROADS AGENCY

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA LABOUR REVISION APPLICATION NO. 7111 OF 2024 (Arising from Labour Case No. CMA/SHY/184 & 185/2017 dated 16thFebruary, 2024 in the Commission for Mediation and Arbitration at Shinyanga) TANZANIA NATIONAL ROADS AGENCY.........................APPLICANT VERSUS GHATI NYAMHUNGA WARYUBA .......................... 1ST RESPONDENT MKAMI WANGUBO MAGESA ……......…..…..…..…..2ND RESPONDENT RULING 1st July & 9th August, 2024. MASSAM, J.: This ruling is in respect of a preliminary objection raised by the Second Respondent to the application, brought by the applicant praying for this court to revised the award dated 16th February, 2024 and quash all orders and findings made by the Commission for Mediation and Arbitration of Shinyanga (CMA). Background of this matter was that the applicant was the Employer of the Respondents, who Employed under fixed Term Contracts with a Tenure of Two (02) years each. The Respondent’s renewed Contracts commenced 1 on 17th February, 2017 and were to come to an end on 6th February, 2019. However, the same was terminated by the Applicant. After a few rivals back and forth at the CMA, the applicant knocked the door of this Court with the current application seeking this Court to revise the award, when the matter came for mention on 10th June 2024 the second respondent filed his counter affidavit together with notice of preliminary objection that the application at hand is time barred as it was filed by the Applicant on 2nd April 2024 out of the prescribed period of six weeks or forty- two (42) days after being served on with a copy of the CMA Award on 16th February 2024. The first respondent filed no counter affidavit, hence so he was precluded from retaliating to the matters of facts but only matters of law and he was allowed to that extent upon hearing of the preliminary objection raised by the second respondent. Reference is drawn from the case of Finn Von Waurden Petersen and Another vs Arusha District Council [2020] TZCA 167 (Tanzlii). It is a good practice in law that, once a preliminary objection is raised, all other matters stay till the disposing of the point of law is done, since the 2 term preliminary objection if argued to the affirmative of the objection may dispose of the suit or an application. Before this Court, on hearing of the preliminary objection the applicant enjoyed the legal service of Mr. Musa Mpogole Senior State Attorney (SSA) and the respondents enjoyed the service of Mr. Benjamin Dotto (personal representative) and Mr. Emmanuel Rugamila advocate. Mr. Rugamila advocate for the first respondent was in support of the preliminary objection that since the award was delivered on 16th February 2024 and the applicant brought his application out of 28th March 2024. Hence the applicant was out of time which make this application to be incompetent before this Court and he prayed for the same to be dismissed with costs. Mr. Benjamin Dotto (personal representative) of the second respondent was in support of the preliminary objection and referring to section 91(1) of Employment and labour Relation Act (ELRA) hence he prayed for the application be dismissed. Mr. Benjamin Dotto (PR) went further saying that the Law of Interpretation Act, section 60(1)(a) provides specifically how computing 3 should be done in regard to the phases used under provision and where it is stated expressly “to”, “on” or “with specified day”, that day shall be included in the prescribed period computing the days. That from 16/2/2024 the last day to file the application was on 28/3/2024 but the same was filed on 2nd April, 2024, on 28th March, 2024 was a normal working day and it was not public holiday nor weekends. So, the applicant cannot rely on 29th March, 2024 which was good Friday, 30th March, 2024 which was Saturday, 31st March was Easter and on 1st April was Easter Monday. He supported his submission with the case of Backlays Bank Tanzania Ltd vs Jacob Muro, Civil Appeal No. 357 of 2019 at page 9 which elaborates that the last date of filing application if it within weekends or public holidays the ones which required to be excluded. He also referred to the case of Backlays Bank Tanzania Limited vs Phylisiah Hussein Mcheni, civil appeal no 19 of 2016 at page No. 15 that once Court finds the application is out of time the remedy is to dismiss it and not to strike it out. Mr. Mpogole in his reply stated by praying to this Court to overrule the Preliminary objection since the same had been with defects, that the award was improperly procured as they filled the application within six weeks after discovery of defects in arbitration award. 4 He added that applicant agreed that they received the award on 16th February, 2024 and filed this application on 2nd April, 2024 and it is about 47 days but referred this Court to invoke Section 55 of Labor Court rules GN no 106 of 2007 and to look into the Judicature and Application of Laws (electronic online filing) rules 2018 rule 21 (1) (2). Since computing of time was supposed to be calculated from 17/2/2024 deadline of filing would be on 29/3/2024 which will be end of 42 days. And since 29th March, 2024 was good Friday, the following three days were weekends and public holiday hence they filed their application on 2/4/2024. And the weekend and public holiday should be excluded from computing days as he supported his arguments in the light of Section 19(1) and (6) of the Law of Limitation Act. When the respondents retaliated on their rejoinders Mr. Rugamila Advocate added nothing further but holding that the applicant submitted his application out of time and prayed for the same to be dismissed. Mr. Benjamin Dotto (PR) he added that applicant did not show that the award was improperly procured. Time can not be extended beyond six weeks, because in the affidavit of the applicant no where shows that the deponent discovered the award to be improperly procured so the same will remain in section 91(1) of the ELRA and section 60(1) of the Interpretation 5 of Laws Act upon computing time for the application to be filed before this Court. This court after been heard the submissions by both parties, I wish to state that it is not in dispute that the impugned award was delivered on 16th February, 2024 and served to the applicant on the same date on 16th February, 2024. Afterward, the applicant filed this Labour Revision on 02/04/2024 which is 47 days from the date of pronouncement of the award. It is trite law that party to this proceeding is required to file his revision within six weeks or forty two (42) days. Section 91 of the The Employment and Labour Relations Act provide inter alia that: “91(1) Any party to an arbitration award made under section 88(10) who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for a decision to set aside the arbitration award- (a) within six weeks of the date that the award was served on the applicant unless the alleged defect involves improper procurement; (b) if the alleged defect involves improper procurement, within six weeks of the date that the applicant discovers that fact.” [Emphasis mine] It is in the context of the section above that computing of time to file an application for revision will be considered to be on or in time or out of 6 prescribed time. It is well stated herein above in the context of section 91(1)(a)(b) that it is within six weeks to mean forty two (42) days of the date that the award was served on to the applicant the counting shall starts until the day one files the same (a revision application) time limit of six weeks shall be counted and unless one alleges defect involves improper procurement of the same award then the computing of six weeks shall start from the day the alleged defect was discovered. To the application at hand, going through the affidavit deponed by John Marwa, this court found nothing of the improper procurement of the award to be stated to any of the paragraphs of the applicant’s affidavit. As far as the law of ELRA is concerned, the term improper procurement has not been defined. However, I am in line with the findings in the case of Mahawi Enterprises Limited v. Serengeti Breweries Limited, Misc. Comm. Cause No. 09 OF 2018, HCT (Commercial Division), DSM, this Court endeavoured to interpret the term improper procurement in the nature of arbitration in the following words, I quote: "In the case of Kong Kee Brothers Construction Co. Limited v. Attorney General [1986] LRC (Comm) 345, the definition on the term misconduct was extended to include technical misconduct such as mishandling or procedural irregularity, Page of ambiguity, excess of 7 jurisdiction, incompleteness and breach of rules of natural justice. As for improper procurement of the award, it is now settled position that this will include elements such as bribe, treating bias, misleading or deceiving arbitrator, employing arbitrator for reward, failure to be impartial. This by any standard does not include erroneous decision, mistake of the law, misunderstanding of submissions or the like and so forth." (Emphasis mine). As stated from the above quoted interpretation of the decision, this Court in line with the chamber summons and the supporting affidavit deponed by the applicant, nothing has been featured as elements pertaining to bribe, treating bias, misleading or deceiving arbitrator, employing arbitrator for reward nor failure to be impartial, to constitute improper procurement of the award. Instead, the Arbitral award bears out that the Commission regrets for any inconvenience for late delivery of the award caused by work load, and the same was delivered on the 16th February 2024 as agreed by both parties to mean despite of the late delivery nothing in the Award nor in the affidavit direct indicates of the improper procurement of the same. And at the same line nothing in the award nor in the affidavit for the applicant indicates that the applicant failed to get the copy of the award within time since the copy of the award as annexure TAN 3 to the application 8 states it well that it was read and delivered on 16th February, 2024 the same day. Since he did not mention when he found such a defect, Since the applicant's allegation is an empty shell which lacks legs to stand on, it follows therefore that he did not discover any defect on the award. In the circumstance, it is hard to rely on section 91 (1) (b) of the ELRA because in my opinion, the applicant's contention is purely an afterthought. More to that, even Sections 19 (1) and (6) of the Law of Limitation Act and 60 (2) of the Interpretation of Laws Act (supra) cannot save the applicant because it is inapplicable in this case the same to the Judicature and Application of Laws (Electronic Filing) rules since the same was filed out of prescribed time limit. Since parties are bound by their pleadings, hence anything the applicant ought to state in his submissions must have been born out of the affidavit. Since the same is not in the affidavit this Court gives the hint no weight at all. See the case of Exim Bank Tanzania Limited vs Wti International Company Limited & Two Others, Civil Case No. 01 OF 2016 (unreported). 9 It is in the context of the Law of Interpretation Act where we find how to interpret the law and phrases used in laws upon computing time, and section 60(1) as it reads: “60(1) In computing time for purposes of a written law- (a) where a period of time is expressed to be at, on, or with a specified day, that day shall be included in the period; (b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period;” Paying attention to the wording of the provision, the law does not advance the applicants cause, the keywords used in the provision 60(1)(a) are “at” “on” and ”or with a specified day” and 60(1)(b) are “from” and “after” and the words used in section 91(1) of the ELRA are “within” and “of” To mean the day the award was delivered shall be counted. Thus, I join hands with my brethren Hon. N.L. Mwakahesya, J; in the case of Nmb Bank Plc vs Emmanuel David Allute, Labour Revision Application NO. 17 OF 2023 as he referred to the case of National Bank of Commerce Limited v. Partners Construction Co. Ltd, Civil Appeal No. 34 of 2003 (unreported) that the phrase “within twenty-one days of” of the Order VIII Rule 1(2) is couched in similar terms to the phrase “within 10 six weeks of” used in section 91(1) of the ELRA when it comes to the issue whether the date of service is inclusive or else when calculating time. This Court in the case of Nmb Bank Plc vs Emmanuel David Allute (supra) went further and stated: “Before signing off, I wish to also add that the period of limitation specified in section 91(1) of the ELRA is six weeks, it is the parties’ desire that the same amounts to 42 days and I have no qualms with it, and if we are to go with the definition of the term “week” as defined in Black’s Law Dictionary, by Brian A. Garner, 8th Edition (2004), West Publishing Co., United States of America, p. 1624, means “any consecutive seven-day period”, the same when counting from 5th October, 2023 ends on 15th November, 2023 which is exactly to 42 days.” [Emphasis to the original] To the application at hand the applicant received his award on 16 th February, 2024 and filed his application on 2nd April, 2024 which was already 47 days after and since the last day was on 28th March, 2024 as complete forty two (42) days and it was a working day, and the following days were weekends and public holiday, the applicant is in delay of one day that is 2nd April, 2024 which he did not account for. 11 This court agrees with the applicant that when computing time weekends and public holidays are not inclusive but agrees further with the second respondent that only when the last days falls to be weekends or public holidays that is when that day shall not be inclusive and nothing to the contrary. As rightly been well couched by the Court of Appeal in the recent case of Access Bank Tanzania Limited & One another vs Thobias John Mwacha (as the Administrator of the estate of the late Paschal John Mwacha, Civil Application No. 24/01 of 2023, (TANZLII) the Court of Appeal at Dar es Salaam had this to say on page 12: “The computation of time is limited; rule 9 of the Rules provides clearly that a court vacation shall not be reckoned unless that day is the last day of that time, in which case it shall be excluded from the computation. The above provision of the law read together with rule 3 of the Rules where the term court vacation is being defined to mean a Saturday, Sunday or a public holiday, including the 15th December to 31st January and from the second Saturday before Easter to the first Tuesday after inclusive, and any other day on which the Registry is closed. [Empasis mine] 12 As rightly stated by the Court, this Court adds nothing but to clarify for the sake of understanding to parties, that it is only when the last day falls to a weekend or public holiday that is when that day shall be inclusive until the following working day. Looking closely to the applicant application and submission I find nothing of the matter to hold in regard to public holidays or weekends being the last days upon computing the time that the application at hand can seek refuge. Since the award was delivered to both parties on 16th February, 2024 and in regard to the period limitation specified in section 91(1) of the ELRA is six weeks, it is in open that the last day or to say the forty two (42) days lapsed on 28th March, 2024 and that day was a working day and not a weekend day nor a public holiday. In the upshot of events, the applicant having received the CMA’s award on 16th February, 2024 and the applicant having filed it on the 2nd April, 2024 the application was out of time of one day which has not been accounted for since the prescribed time lapsed on 28th March, 2024. 13 In final event, I dismiss the application for being time barred. As this matter stemmed from labour dispute, I make no order as to costs. It is so ordered. DATED at SHINYANGA this 09th day of July, 2024. R.B. Massam JUDGE 14