TANZANIA PORTLAND CEMENT PLC V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 15801 OF 2024 (Arising from an Award issued on 30/11/ 2023 by Hon. Ngarula, O.W., Mediator, in Labour Dispute No. CMA/DSM/KIN/449/2023 at Kinondoni) TANZANIA PORTLAND CEMENT CO. LTD ..……….………………. APPLICANT VERSUS LUKAS MWAKABANGA ...................………………………………... RESPONDENT JUDGMENT Date of Last Order: 15/10/2024 Date of Judgment: 25/10/2024 B. E. K. Mganga, J. It is undisputed that, Lukas Mwakabanga, the herein respondent was an employee of Tanzania Portland Cement Co. Ltd, the herein applicant. It is also undisputed by the parties that, on 30th June 2001, applicant terminated employment of the respondent by way of retrenchment. It is further undisputed that, after termination, respondent filed Civil Case No. 72 of 2007 before the High Court of Tanzania at Dar es Salaam District Registry but the said case was struck out on 7th December 2010 for want of jurisdiction. It is also undisputed by the parties that, after the said Civil Case No. 72 of 2007 was struck out for want of jurisdiction, respondent filed Labour dispute No. 1 CMA/DSM/LOM/1034/10 before the Commission for Mediation and Arbitration(CMA) and that, the said dispute was decided in favour of the applicant. Aggrieved with the CMA decision, respondent filed Revision No. 105 of 2019. The said Revision No. 109 of 2019 was struck out on 1st October 2021 and the court ordered reconstruction of the CMA record because the same was missing for a long period. It is undisputed that, proceedings in the said dispute was later on nullified and the parties appeared before CMA for hearing of the application for condonation. The application for condonation was heard by the Mediator who dismissed it. Respondent was aggrieved with the said dismissal, as a result, he filed Revision Application No. 240 of 2022. On 13th October 2022 when the said Revision Application No. 240 of 2022 was called on for hearing, Ms. Stella Simkoko, advocate for the herein respondent, who was the applicant, submitted that Mediator have no jurisdiction to determine the application for condonation. Mr. Rahim Mbwambo, advocate for the herein applicant, the respondent in the said revision, concured with those submissions. Consequently, this court, Hon. S. M. Maghimbi, J, allowed the application and remitted the CMA record to CMA so that the application for condonation can be heard by the Arbitrator. 2 It is undisputed that following the order of this Court in Revision Application No. 240 of 2022, the parties went back to CMA so that the application for condonation can be heard as it was ordered. It is apparent on record that, on 30th November 2023, Hon. Ngaruka O.W, Mediator, having considered evidence of the parties both in the affidavit in support of the application for condonation and the counter affidavit opposing the said application in labour dispute No. CMA/DSM/KIN/449/2023, issued a ruling granting condonation to the respondent. Applicant was aggrieved with the said ruling hence this application for revision. In support of the Notice of Application, applicant filed the affidavit sworn by Minge Michael Mhondo, her Principal Officer. In the said affidavit, applicant raised three grounds namely:- 1. That the honourable mediator erred in law for failure to observe and hold that the respondent failed to account for over 6 years of delay in lodging his complaint before the CMA. 2. That the honourable mediator erred both in law and fact for condoning such in ordinate delay without legal justification. 3. That the mediator had no jurisdiction under the law to determine application for extension of time (condonation). Respondent opposed this application by filling the notice of opposition and his counter affidavit. 3 When the application was called on for orders, the parties prayed the application be argued by way of written submissions, as a result, the order was issued to that effect. Mr. Rahim Mbwambo, learned advocate filed written submissions on behalf of the applicant while Ms. Stella Simkoko, learned advocate filed submissions on behalf of the respondent. Arguing the 1st and 2nd grounds, Mr. Mbwambo submitted that, the Mediator grossly misdirected himself for failure to interprete the law as a result, respondent was retrenched on 30th June 2001 and instituted his case in court on 09th June 2007 which is over 6 years from the date of retrenchment. He went on submiting that, the decision which resulted to this application was filled at CMA on 24th July 2023. He added that, respondent ought to account for each day from 30th July 2001 to 24th July 2023 which is more than twenty-two years (8054 days). To support his submissions that respondent was supposed to account for each day of the delay, counsel cited the case of Dar es Salaam City Council vs Group Security Co. Ltd, Civil Application No. 234 of 2015, CAT(unreported) and Alliance One Tobacco Tanzania Ltd vs Mwajuma Hamisi & Another, Misc. Application No. 803 of 2018, HC(unreported). 4 Counsel argued further that, respondent’s allegation that he instructed advocate Lugua to file a case is neither established nor proved. Mr. Mbwambo submitted that, as the law stands today, respondent had a personal legal duty to make follow up on his case. He added that, negligence of the advocate is not a justification for inordinant delay of over two years. To cement on his submissions, he cited the case of DK Elly Josephat vs MSPH TZ Ltd, Misc. Appl. No. 367/2022. Counsel for the applicant further submitted that, allegations that from 2004 to 2007 respondent filled an application for extension of time before the Minister for Justice and told that he was within time, is not valid because that was done in ignorance of the law which does not amount to good cause or justification for in ordinate delay. Mr. Mbwambo further submitted that, technical delay cited by the mediator commenced in 2007 and does not cover periods from 2001 to 2007. Arguing the 3rd ground Mr. Mbwambo submitted that, Mediator has no jurisdiction to determine application for extension of time. To support his submissions, he cited the Barclays Bank (T) Ltd vs Ayam Matesa, Civil Appeal No. 481 of 2020, CAT(unreported) and Suzan Mwanyava vs Cardinal Rugambwa Hospital, Revision Application No. 191 of 2022 HC(unreported). He added that, previously, this court 5 determined the said issue and remitted the matter to CMA to be heard by the Arbitrator instead of the Mediator. With those submissions, he prayed the Court to allow this application. Resisting the application, Ms. Simkoko submitted that, respondent accounted for everyday of delay. She added that, on 29th June 2007, respondent filled a civil case before the High Court of Tanzania at Dar es Salaam knowing that the applicant had breached the contract by retrenching him without consent and that, limitation period for instituting a suit for breach of contract is six years. She went on that, a civil case respondent filed on 29th June 2007 was within time hence the mediator was right to hold that the delay was technical. Counsel for the respondent supported her submissions by citing the case of Bank M (Tanzania) Limited vs Enock Mwakyusa, Civil Application No. 520/18 of 2017, CAT(unreported) and Fortunatus Masha vs William Shija and Another [1997] T.L.R. 154. She added that, respondent is also covered by the provisions of section 21 of the Law of Limitation Act [Cap. 89 R.E. 2002]. To cement on her submissions to that point, counsel cited the case of Eshikaeli N. Makere vs Tanzania Telecommunications Co. Ltd & Another, Civil Appeal No. 57 of 2014, CAT(unreported). 6 Resisting the 3rd ground, Ms. Simkoko submitted that, Mediator has jurisdiction to determine an application for condonation. To support her submissions counsel for the respondent cited the case of Vodacom Tanzania Limited vs Elifuraha P. Mtowe and Another, Civil Appeal No. 01 of 2020, CAT(unreported). She further submitted that it is inappropriate to deny a party an extension of time where such denial will stifle his case and cited the case of Mobrama Gold Corporation Ltd vs Minister for Energy and Minerals and the Attorney General and East African Goldmines Ltd as Intervenor, [1998] TLR 1425. In rejoinder, Mr. Mbwambo reiterated his submissions in chief and added that, the case of Bank M (Tanzania) Limited vs Enock Mwakyusa (supra) is distinguishable as the notice of appeal in the said case was filled within time and the appeal was struck out due to conflicting decision of the court of appeal not due to negligence or in action by the applicant. He further submitted that, the case of Vodacom Tanzania Limited vs Elifuraha P. Mtowe and Another(supra) is distinguishable as the issue was whether, service on the appellant was sufficient and the Court of Appeal held that the omission to serve the appellant deprived him right to heard. 7 I have carefully examined CMA record and considered rival submissions made on behalf of the parties in this application. As pointed out hereinabove, on 13th October 2022 when Revision Application No. 240 of 2022 was called on for hearing, Ms. Stella Simkoko, advocate for the herein respondent, who was the applicant, submitted that Mediator have no jurisdiction to determine the application for condonation. Mr. Rahim Mbwambo, advocate for the herein applicant, the respondent in the said revision, concured with those submissions. Consequently, this court, Hon. S. M. Maghimbi, J, allowed the application and remitted the CMA record to CMA so that the application for condonation can be heard by the Arbitrator. In Revision No. 240 of 2022, this court(Hon. S.M.Maghimbi, J) issued the following order:- “order: Having heard the parties who unanimously agreed that the mediator had no powers to determine the application for condonation and in the light of the cited cases of Barclays Bank vs Ayyam Mates and Suzana Mwanyava vs Cardinal Rugambwa Hospital, and having considered the length of time that the parties have been in court corridors, I allow the submission on the new ground of revision, that the mediator had no jurisdiction to determine an application for extension of time. This is in consideration, as I have said, of the fact that both parties have agreed to this position in light of the cited cases above. Consequently, I allow this revision by revising and setting aside the order of the mediator refusing to allow condonation of time. The parties are remitted back to the CMA so that the application for condonation can be heard before an arbitrator. 8 It is so ordered.” Strange as it is, when the matter was remitted to CMA with the quoted order, an application for condonation was heard by the Mediator in defiance of this Court’s order. Again, strangely as it may sound, both Mr. Rahim Mbwambo and Ms. Stella Simkoko who are representing the parties in this application, appeared before this Court in Revision application No. 240 of 2022 and submitted that, the Mediator had no jurisdiction to grant condonation. In fact that, move was initiated by Stella Simkoko. In the application at hand, while aware of this Court’s order in Revision Application No. 240 of 2022, Ms. Simkoko, changed position and submitted that the Mediator had jurisdiction to determine application for condonation. She changed that position because the Mediator delivered the ruling in favour of her client condoning the application for condonation. In revision No. 240 of 2022 she submitted that, the Mediator had no jurisdiction to determine an application for condonation because, the Mediator dismissed the application for condonation. It is my view that, advocates being officers of the court, they are supposed to assist the Court in correctly interpreteng the law even if that may be against the interest of their clients. That is what it means to be an officer of the court. An officer of the Court cannot twist the law just to fit the interest of the client. I believe learned advocates, 9 should always keep that in their mind. In fact, in a Kenyan case of Francis Mugo & 22 others v James Bress Muthee & 3 others, [2005] eKLR, HC (Nakuru) Civ Suit No 122 of 2005, Hon. Musinga, J, held that: - “While I agree that the choice of counsels is a prerogative of a party to a suit, it must be borne in mind that in the discharge of his office, an advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to himself and a duty to the state. As an officer of the court, he owes allegiance to a cause that is higher than serving the interests of his client and that is to the cause of justice and truth. (Emphasis is mine). Again in the case of Attorney General vs Fatuma Amani Karume (Application No. 29 of 2019) [2020] TZHCLD 1819, this court (Hon. Kilekamajenga, J), (chairman of the Advocate Committee) quoted the holding in the South African case of Kekana v. Society of Advocates of South Africa 1998 (4) SA 649 (SCA) 551-656 that:- “...an advocate, whose calling is one which is praiseworthy and necessary to human life, should always cling to the famous principle that the true jurist is an honest man. These qualities of honesty and integrity must continue to be displayed throughout a legal practitioner's career...” (Emphasis is mine). 10 In Karume’s case (supra), this court further quoted the decision in the case of J.S. Jadhav v. Mustafa Haji Mohamed Yusuf and another, AIR 1993 1535, 1993 SCR (2) that: - “…The central function that the legal profession must perform is nothing than the administration of justice.” It is my view that, advocates have the duty of acting honestly and assisting the court in administration of justice and nothing else. Back to deficience of this court’s order by CMA. It is my considered opinion that, CMA and the parties have no option other than complying with this court’s order quoted hereinabove. It is clear that, hearing and granting the application for condonation by Ngaruka O.W, Mediator, was in total disregard and disrespect of this court’s order dated 13th October 2022 quoted hereinabove. That is unacceptable because, Court orders must be respected as it was held in the case of Karori Chogoro vs Waitihache Merengo, Civil Appeal No. 164 of 2018 [2022] TZCA 83, Daud Godluck Sollo vs.Dar es Salaam Institute of Technology Saccoss Ltd (Misc. Application 197 of 2022) [2022] TZHCLD 930 and Mustaquim Murtaza Darugar na Wanzagi Selemani Makongoro na Wenzake 2 (Maombi Marejeo 43 of 2022) [2022] TZHCLD 802P3525 Lt Col. Idahya Maganga Gregory Versus The Judge Advocate General Court Martial, Criminal Appeal No. 4 of 2002 and 11 Secilia Martin vs. Timoth M. Mthiga (Land Appeal No. 3450 of 2024) [2024] TZHC 2156 (21 May 2024). In the case of Karori Chogoro vs Waitihache Merengo, Civil Appeal No. 164 of 2018 [2022] TZCA 83, the Court of Appeal held inter- alia that:- "Court orders should be respected and complied with. Courts should not condone such failures. To do so is to set bad precedent and invite chaos. This should not be allowed to occur..." In Mthiga’s case (supra), this Court held inter-alia that:- "Court orders are binding and are meant to be implemented. They must be obeyed, if such orders are disrespected the system of justice will be rendered useless and it will create chaotic that everyone will decide to do anything that is convenient to him… A court’s order is lawful unless it is invalidated by another superior order…” In the application at hand, the order that was issued on 13th October 2022 by this Court in Revision Application No. 240 Since CMA has not been turned down by the Court of Appeal. In other words, the said order is stil valid and none of the parties sought to cahllenge it before the Court of Appeal. That being the position, that order cannot be vacated by the Mediator at CMA or this Court. I am of that view because this court is functus officio. For the foregoing, I hereby nullify CMA proceedings and the ruling issued by the Mediator granting condonation to the respondent in 12 difiance of this Court’s order issued on 13th October 2022 in Revision Application No. 240 of 2022. I therefore direct the parties to back to CMA so that the application for condonation filed by the respondent can be heard and determined by the Arbitrator as it was ordered by this court in Revision Application No. 240 of 2022. What I have discussed herein above has dispossed the whole application. I therefore see no reason of discussing the remaining issues raised and argued by the parties. Dated at Dar es Salaam on this 25th October 2024 B. E. K. Mganga JUDGE Judgment delivered on 25th October 2024 in chambers in presence of Chali Juma, Advocate for the Applicant and Lucas Mwakabanga, the Respondent. B. E. K. Mganga JUDGE 13