tanzania revenue authority vs wency setoga 2021 tzhcld 58 17 march 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS APPLICATION NO. 411 OF 2020 BETWEEN TANZANIA REVENUE AUTHORITY............................ APPLICANT // ZZ VERSUS % X WENCY SETOGA....................................................... ^RESPONDENT Date of Last Order: 15/02/2021 Date of Ruling: 17/03/2021 Z.G.Muruke, J. ---------------- *--- <4Z I Vi On 28th May, 1996, WencZSetoga wasr'employed by the applicant as the Deputy Commissioner,# charge-ofZudit and Investigation. On 9th September, 1997 the respondent was confirmed to the said appointment. »h <^x. Z. Zs On 9 July, 199^^the^ap^licaht changed terms of employment for Commissioners,^ and ’Deputy' Commissioners from permanent and pensionable#^ contractual terms. Thus, on 26th August, 1999, applicant signed the contraetof Employment for terms of three years, from 1st July, 1999)>after ’having agreed to change his terms of employment by his letter Xx XX dated f-J^vJuly, 1999. On 30th June, 2002, the respondent's three year contract of employment expired and the employment relationship ended. The applicant informed the respondent that the contract of employment has expired and their relationship has come to an end. Same dissatisfied respondent, thus preferred dispute to the Commission for Mediation and Arbitration on which an award was delivered on 18th January, 2016, i ordering reinstatement of the respondent from the date of expiry of the respondent's contract of employment until the retirement date and payment of TZS 150,000,000/= as compensation. Being aggrieved, the applicant filed Labour Revision No. 66 of 2016, that was struck out, with leave to refile, for being incompetent. Revision application No. 329 of 2016 was filed, again it was\struck o,ut in (2017. Thereafter, the applicant filed Miscellaneous application ‘Ng, 154X0P2O17, for extension of time to file Revision which was also1struck obA Then filed Misc. application No. 85 of 2018 for extension^ tim^that was dismissed for want of prosecution on the 14th of Febnjan//2bi9. On 10th September, 202Q/the applicant, fifed? this application seeking an order for setting aside the dismissal ordet^made on 14th February, 2019 and restore the dismissed application/ for extension of time, Misc application No. 85 of 20i'8. The application was served to the respondent who filed counter-affidavit,^objecting to the application together with ip preliminary objection namely, application is time-barred. Aft^R^etf^al adjournment caused by parties, court ordered hearing tcnbe by"wa^ofxwritten submission. Applicant was represented by Jackline Xx ’/ Chunga^an advocate. While Leornard Masatu, of MM Attorneys represented respondent./ In short respondent counsel submitted in support of the preliminary objection as follows:- applicant admits in her own affidavit in support of the application paragraph 15 that application being sought to be restored was dismissed on 14th February, 2019. It was also admitted on some paragraph 15 of 2 affidavit in support of the application that, applicant was served with copy of ruling dismissing the application on 10th August, 2020 but filed application without have at the court on 10th September, 2020. This is in ordinary out of time. Since the Labour Court Rules do not provide for time within which an application for setting aside dismissal order and/or.4br restoration-jof a v xi- \\ dismissed application for want of prosecution, the generai^rovisionxof the Law of Limitation Act apply. Item 21 of the sectile to the^ct provides that:- 21. Application under the Civil Procedure'Cpde/the Magistrates' Courts Act or other written law for:phichi\no peq^o^Hrnitation is provided into his Act or any other written iaw..^h.,..si^ty days. Misc. Application No.^5 of 2Ql^Being sought to be restored was dismissed on 14th February, 2019 and this application was filed on the 10th September, 2020J3eing^overvsl7'> months from the date of dismissal, it hopelessly^ou^,o^f time. \T\fre^bnsequences of matters filed out of time, is set out in S^ectiohxSfi^df the Law of Limitation Act which provides for Respondent counsel insisted that to entertain an application like the present one; would be to defeat the purpose and the policy objectives of the Law of Limitation which demands that litigation have to come to an end, as was stated in the case of Stephen Masato Wassira Vs. Joseph Sinde Warioba & AG [1999] TLR 332, at page 342 paragraph B where Samata, J.A (as he then was) stated. 3 "The law of this country, like laws of other civilized nations, recognizes that, like life, litigation has to come to an end. Those who believe that litigation may be continued as long as legal ingenuity has not been exhausted are clearly wrong." In opposition, applicant argument is that, application is not out of time. Time limitation to lodge an application to set aside.djsmissal order started to run on 10th August, 2020, when applicant served v/ith copy of ruling and not from 14th February, 2019 when the.order was. giv^nby the court, referring Section 19(4) of the Law of Limitation Act Cap 89. On 10th August, 2020, applicant become, aware, thus, quickly^filed an application on the system on 28 August, 2020 andTpdged^physically in the court's registry on 10th September, g-020. The pedod^Euns from 14 February, 2019 to 10th August, 2020, shb'uld as oferiglpt be excluded in computing time limit for that purpose,Jnsisted^appljcant counsel, Jacqueline Chunga. Having heard bo^h^parties^ submission issue before this court is whether application“ik’out\ofjtime. As correctly submitted by respondent counsel,Ta^op^^Jrt^uIes do not provide for time within which an application;.fdr>setting aside dismissal order and/or for restoration of a dismissed application for want of prosecution. The general provisions of the Vs, Law of-Limitatipn Act apply. Item 21 of the schedule to the Act, provides that. \j/ 21. Application under the civil procedure code, the magistrate's court Act or other written law for which no period of limitation is provided in this Act or any other written law......... sixty days. 4 Thus, the law of limitation is applicable in labour proceedings as provided above. Same position was acknowledged in the case of Tanzania Breweries Limited Vs. Edson Muganyizi Barongo and 7 others, Misc Labour Application No. 79 of 2014) at page 16 the court held; "However as rightly followed by this court in reverting to section 3 of the limitation (law) Act for a remedy to a time barred filed application which is dismissal there is a lacuna of the remedy sorr dismissed^ application or matters in the labour court rules&JMow since thejabbur i’r court rules do not provide for remedy on mattenswvhich are time barred and that is dismissal per Section 3 of the limitation^act. Xfriereafter, it is not true that as argued by counsel for appli^^l^rXMbwambo that the law of limitation act is inapplicable in Jabour1aws.l®ie law of limitation xx ) act is the law of general appHcation 'is^appiicable'in the labour court to the extend as provided in thraCjudgment?'^^^ Applicant affidavit at paragraph 15 irT'support of the application read as follows: X\Xx "Tf^ap^j^nt^rote^ letter to the court for a copy of ruling which was granted^•bn%i0?sAugust/ 2020 the applicant learnt that the application forXextension of. time was dismissed for non-appearance on 14 February£20i9 nence made this application to restore the application x\ \\ xand set-aside the exparte ruling." From" the above sworn evidence by applicant principal officer, applicant admitted to file present application after 17 months from the dismissal order. Reason adduced of what happened with her former advocates Apex Attorney were suppose to support an application for extension of time not in present application filed out of time. Argument 5 that time start to run when applicant become aware of the order be excluded, is a monkery of justice. What happened within that time should have been reasons for this court to grant extension if sought. Misc. Application No. 85 of 2018 being sought to be restored was dismissed on 14th February, 2019 and this application was filed on the 10th September, 2020 which is over 17 months from the^date^of'dismissal, is hopelessly out of time. Preliminary objection by respondent upheld. The consequences of matters filed out of time is dismissal in terms, of Section 3(1) of Law of Limitation Act Cap 89. Thus, Misc application number 441 of 2020,m is dismissed for being filed out of. time. Xx iruke^KXJ JUDGE )) 17/03/2021' Ruling delivered in the^presence of Walter Shayo for the respondent . \\ and in the presence-OfxHilda Kisaka applicant legal officer. Z.G. Miiruke JUDGE 17/03/2021 6