the attorney general vs air tanzania company limited 2020 tzhcld 3810 14 december 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 650 OF 2019 THE ATTORNEY GENERAL...................................... APPLICANT VERSUS AIR TANZANIA COMPANY LIMITED.............. 1st RESPONDENT BARAKA KULWA............................................ 2nd RESPONDENT HALIMA SAGAF...............................................3rd RESPONDENT DATTUS MMANYI MUSH ARA........................ 4th RESPONDENT RULING Date of last Order: 18/11/2019 Date of Ruling: 14/12/2020 Z.G.Muruke, J. Applicant seeks leave for extension of time to file an application for revision to set aside an award dated 7th December, 2015, and amended award dated 10th March, 2016 in Labour Dispute No. CMA/ DSM/KIN/870/2009 on grounds of illigatilities. Application is supported by an affidavit sworn by Charles Mtae, State Attorney in the office of the Solicitor General. Main reasons for extension are covered under paragraph 15,16,17 and in particular paragraph 18 that reads as follows. 18. That there are serious points of law worth consideration by the court in the said award in that; 18.1 The trial arbitrator inserted new orders in the amended award which ordered first respondent to pay second, third and fourth respondents Tshs. 1,177,877,332. 18.2 The trial arbitrator amended an Award after more than 90 days since the original award was issued. 18.3 The trial arbitrator made the award ambiguous and difficult to execute and that. 18.4 The amended award ordered the first respondent to pay second, third and fourth respondent their PPF revision contribution contrary to the law. First Respondent did not file counter affidavit and on 12th October 2020, Mr. Benedict Temba informed the court that, first respondent is not opposing the application. Second, third and fourth respondents contested the application in an affidavit sworn by their learned counsel Mr. Costa Mahalu. On the date set for hearing, applicant was being represented by Charles Mtae, State Attorney, first respondent who conceded to the application was represented by Mr. Benedict Temba, while Mr. Costa Mahalu represented second, third and fourth respondents. By consent hearing was ordered to be by way of written submission. In support of the application it was submitted that the CMA award delivered on 7th December, 2015 had only one order of reinstatement of respondents within 30 days from the date of the Award. Later on, 10th March, 2016, the arbitrator invoked the powers conferred under Section 88(8) of the Employment and Labour Relations Act No. 6/2007 and make amendment to the Award and order the payment of Tshs. 1,177,867,332 to the second, third and fourth respondents. Since, no any order of payment was given in the original award, it is the applicant conviction that, granting the same in the amended Award, is to misuse the arbitrators 2 powers, and acting Ultra vires. Once an Award is issued by CMA, Arbitrator's hands are tied and becomes Functus officio save for the clerical errors and errors in the face of records.This court on the case of African Barrick Goldmine Vs. Eddie Hamza [2015] LCCD 172 Nyerere, J citing the decision of Bibi Kisoko Medard Vs. Minister for Lands (1983) TLR 250 that held that:- ”.....in the matter of judicial proceedings once decision has been reached, and made it known to the parties the adjudicating tribunal or court become functus officio that entails the court or tribunal is stopped from deciding the matter again based on the same issud' [Emphasis ours] Therefore, basing on the illustration above by Hon. Nyerere,J it is crystal clear that the arbitrators acted contrary to the law by going back and give new order. The amended award was delivered almost four months after the original award. It is applicant's belief that this period is unreasonably long, and invites a discussion of miscarriage of justice, which the applicant intends to address the same in the revision. Time for the amendment of the award must be reasonable, and should not by any how be longer than the period which the commission is required by the law to deliver the award, which is thirty days. It would be astray for the court to accept and execute the amended award which was delivered more than ninety (90) days from the day the original award was issued. Thus, deliverance of amended award after ninety (90) days caused a miscarriage of justice and the applicant intends to address it in the application for revision. 3 Irregularity of the amended award, made the whole award very ambiguous hence difficult to execute. It is apparent that the second, third and fourth respondent have already made three attempts to execute the award but in futile, due to its ambiguity, as it contains new orders, not given by the commission in the first award. The applicant is in dilemma with regard to these awards, hence, the intervention of this court through revision is of utmost important for the interest of justice, citing the was case of Steven Kihiyo and Others Vs. St. Christian Girls Secondary School [20131 LCCD 129 Rweyemamu, J who held that. "After considering the above, together with the fact that the impugned award it is so ambiguous that it would be difficult to execute, it is in may view the above constitute sufficient reason for me to grant the extension of time prayed for, as I hereby do." In the amended award, Hon. Arbitrator made calculations of the amount that the first respondent has to pay the second, third and fourth respondents in regards to PPF contributions, which is TShs. 35,384,661 each. Then on page four, after computation of the amount payable, he ordered first respondent to pay second, third and fourth respondents their PPF contribution. Applicant is of the view that, this is contrary to the law, as this court clearly held in the case of Masoud Kondo and Three Others Vs. M/S Tanganyika Investment Oil Transport [2011-2012] LCCD 17 S.C. Moshi,J. "The Issue of N.S.S.Fpayment procedure is not covered by the Employment and Labour Relations Act, Act No. 7/2004. The 4 I N.S.S.F payments has it is own procedure which is stipulated by other laws. "[Emphasis ours] The above position was further echoed in the decision of Issack Chiwinga Vs. Mbeye Cement Co. Ltd [2011-2012] LCCD 66, when the court was called to make an order for the employer to pay social security remittance (PPF) to the employee. The court held that; "The PPF fund has its own procedure to access it. Hence this court it is not proper forum." PPF as N.S.S.F both are social security funds which have their own laws and regulations concerning payments. Therefore, the arbitrator was not supposed to order the applicant to pay the second, third and fourth respondents their PPF contribution contrary to the laid down law and regulations. This court, under Rule 56(1) of Labour Court Rules GN 106/2007 has power to extend time upon good cause. It is settled principal of law that illegalities of decision constitute good cause as was held by this court in case of Rev. Dr. Rinilick E.K Mchami Vs. The Registered Trustee of Evelengelical Lutheran Church in Tanzania Mipawa, J that; "I respectively and entirely agree with the applicant that the reason of illegality and the like on decision may constitute enough and valid reason for the court to grant the extension of time as the Court of Appeal held in EttnessHote [Applicant] Vs. National Housing Corporation [Respondent]Civil Reference No. 32 of 2005 quoting decision in the case of Principal Secretary Ministry of 5 Defense and National Services Vs. Dervam Valambhia 1992 TLR 18" Illegalities demonstrated at paragraph 18.1, 18.2, 18.3 and 18.4 surface to all the application for extension of time to file revision insisted Learned State Attorney for the applicant. On the other hand Mr. Costa Mahalu, counsel for the second, third and fourth respondents submitted that, the applicant keeps on raising the point in their written submission that the amended award was illegally obtained due to it having new orders. That is simply not true. No new order was ever issued by the arbitrator. The amended award that was issued by the arbitrator clarified what second, third and fourth respondents were to receive as payment for having their employment unfairly terminated. To understand this point, court need to look at the CMA award issued on 14th December, 2015. The CMA awarded the second, third, and fourth respondents reinstatement for having their employment terminated unfairly. Under Section 40(l)(a) is states as follows "Zf an arbitrator or Labour Court finds a termination is unfair, the arbitrator or court may order the employer. " (a) To reinstate the employee from the date the employee was terminated without loss of remunerations during the period that the employee was absent from work due to the unfair termination. As a result, there is no illegality in the award. The arbitrator was actually trying to make it easier to enforce the award by clearly stating the remuneration owed to the second, third and fourth respondent. This fact 6 was further confirmed by Hon. Mipawa,J, in Air Tanzania vs. Baraka Kulwa & 2 Others, Revision No. 160 of 2016 where he stated: "What was done by the arbitrator was to specify the respondents entitlements and the same formed party of the award..." The question as to whether the amended award was illegal or not was already resolved by the Hon. Mipawa,J in the above mentioned case which was filed by the first respondent. Hon. Mipawa, J clearly, held that the amended award was legal as it formed part of the award issued by the CMA on 7th December, 2015. It is true that payments to the pension fund are governed by other laws, but when it comes to the loss of- remuneration the employees are entitled to, pension fund is part of it. Under the law, every employee and employer needs to contribute to a pension fund scheme either be NSSF or PPF. This contribution will later on become the employees retirements benefits. Since it is clear that the employees were to be paid all the remuneration they were to receive when they were employed by the applicant, part of that remuneration would have been the employer contributing to the NSSF. As a result, the arbitrator was correct in including NSSF as part of the remuneration payment to the second, third and fourth respondents. Before submitting on merits respondents counsel asked two question. One; what proceedings is applicant talking about? The case between the first respondent and the second, third and fourth respondent already has 7 come to an end. Currently the only avenue left is for the respondent's to receive assistance from this court in regards to executing the case. Two; when was the attorney General's right of audience excluded. If the first respondent never informed the Attorney General of the case that is not the Attorney General being exclude, but, negligence from the first respondent. It was further submitted by learned counsel for the second, third, and fourth respondents that from applicant's own affidavit, it can be seen that first respondent has already exhausted all options in regards to this matter. The first respondent filed revision number 160 of 2016 but was ruled to be out of time by Hon. Mipawa, J and was dismissed in toto. That is why when the States Attorney on behalf of the first respondent tried to file another application they withdrew that application. The only option they have left is having the Attorney General file this application. This application is only here, as a way of wasting time and delaying justice to the second, third and fourth respondents. This is not a matter of whether the award from the CMA was legal or not, but rather whether applicant has raised sufficient cause. The applicant filed this matter 29th October, 2019. The award they want to be revised is dated 7th December, 2015. That is nearly fourth years after the award was issued. Not only this, the second, third and fourth respondents actually wrote a letter to the first respondent dated 14th December, 2015 informing the first respondent of the award and attaching a copy of the award with the letter. As a result, the first respondent knew of the award earliest from 14th December, 2015. Nothing however, was 8 done in regards to this matter until the second, third and fourth respondents filed for execution before this court. The first respondent using their in house counsel, Philipo Mahenge, then filed for revision of the award, namely revision 160 of 2016. Hon. Mipawa, J ruled that the application was filed out of time and dismissed the matter in toto. The issue before this court is to whether there is a valid explanation after waiting for 4 years to file this application. In the case of Daudi Haga Vs. Jenitha Abdan Machanju, Civil Reference No. 1 of 2000 (unreported) the court held that parties have to account for each day's in showing cause for the delay. Same principle was once again used in the case of SAAFA Plastics Limited Vs. Yona Onesmo & 7 others, Misc. Application No. 345 of 2017 (unreported). As stated before, the first respondent knew of the award since 14th December, 2015. If the applicant had a vested interest in the first respondent, they would have been keeping track of all cases the first respondent is involved in. If the first respondent was negligent and did not inform the applicant and the applicant was negligent by not following up on cases, the first respondent is in. Then, they cannot claim that there was no negligence. Respondent counsel insisted that it is clear that they have not passed any of the principles set for filing an extension of time, as demonstrated below:- 1. Promptness- they are over 4 years late in filing the matter. 2. Valid reason for delay- they do not have one, since the 1st respondent was aware of the award since 14th December, 2015. The only reason the applicant filed this matter is because the 1st 9 respondent has exhausted all their avenues for challenging the award and do not wish for the second, third and fourth respondent to receive what they are legally entitled to. Not a single piece of evidence was presented to account for all the days they delayed in filing this matter. As a result this is more of an afterthought. An afterthought is not a valid reason for delay. 3. Lack of negligence -first respondent who acts on behalf of the applicant had the award since 14th December, 2015 and did not act upon it. If that is not them being negligent, I do not know what is. Respondent counsel asked this court to be guided by the case of Tanzania Fish Processors Ltd Vs. Christopher Luhangala, Civil Appeal No. 161 of 1994, where it was held that the limitations are there to ensure that a party does not go to court as and when he chooses. More binding authority is that of Hon. Mipawa, J ruling in Revision No. 160 of 2016 between the first respondent and the second, third and fourth respondents where he stated "the applicant cannot turn this court into a Casino where one goes at any time he/she wishes."It was further held that the second, third and fourth respondent were unfairly terminated from their employment and as a result the first respondent has to reinstate them and pay them from the date of termination to the date of reinstatement as per the law. All these attempts to try and file for revision are an attempt to derail justice against the second, third and fourth respondents, lamented respondent counsel. In rejoinder submission, applicant counsel insisted what he submitted in chief and further argued that, need of hearing intended revision is necessary to correct illegality, complained off. Having gone through well-researched and argued submission by both counsels, and court records, unfortunately, will not deal with the merits of the application, but rather, on propriority of the present application. There is no dispute that, applicant was not party to the CMA proceedings and revision before this court that ended being dismissed by Hon. Mipawa,! Equally, there is no dispute that, applicant can join any proceedings where, there is government interest to protect. What is in dispute is which proceedings before this court in the manner this application filed. There is no any proceedings going-on before this court for applicant to join. Applicant has filed an application for extension of time to file revision. There was revision number 160/2016 between first respondent second, third and fourth respondents that was dismissed for being out of time. To this court, there is nothing before her for applicant to join at the moment. I have read carefully the affidavit in support of application particularly paragraph 18 on illegalities to be challenged, there is an issue to be discussed by the court. However, the manner in which this application has been brought, my hand are tied up. Present Misc application, is improperly filed in the circumstances of decree in Revision application number 160/2016 between first respondent, second, third and fourth respondents, thus struck out. . , Z.G. Muruke JUDGE 14/12/2020 ii Ruling delivered in the presence of Mr. Evilius Mwendwa Learned State Attorney for applicant and Mr.Costa Mahalu, Learned Counsel for the second, third and fourth respondents. Z.G/^urute^^^ JUDGE 14/12/2020 12