the registered trustees of the gombe school of environment societygoseso trust and another vs hussein idd and two others 2023 tzhc 19281 25 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IN THE DISTRICT REGISTRY OF KIGOMA) AT KIGOMA MISC. LABOUR APPLICATION NO. 3 OF 2022 (Arising from High Court Labour Revision No. 4 of 2022, originating from CMA/KIG/DIP/185/2020/05) THE REGISTERED TRUSTEES OF THE GOMBE SCHOOL OF ENVIRONMENT SOCIETY (GOSESO TRUST) APPLICANT GOMBE HIGH SCHOOL...................................... 2nd applicant VERSUS HUSSEIN IDD RESPONDENT SWALEHE YAHAYA 2"“ RESPONDENT BASHIRU KHAMAD MIGINA 3’^'* RESPONDENT RULING 24/7/2023 & 25/7/2023 Mlacha,J. This is a ruling on application for extension of time within which the applicants. The Registered Trustees of Gombe School of Environment and Society (GOSESO TRUST) and Gombe High School, can file a revision against the award of the Commission for Mediation and Arbitration for Kigoma (The CMA) made in CMA/KIG/DIS/185/2020/05 dated 28/2/2022. The respondents are Hussein Idd, Swalehe Yahaya and Bashiru Khamad Migina. It is a fact agreed by the parties that the applicants filed revision No. 4/2022 1 to challenge the decision of the CMA in time but it was found to be improperly before the court and struck out on 30/08/2022. The applicants decided to refile but could not do so without orders of extension of time hence the application now before the court. Mr. Kagashe who is representing the applicants is seeking extension on two grounds. One, that, there was technical delay in the matter. In this regards he made reference to the period when the applicants were in court in Labour Revision No. 4/2022. He said that is period is excusable. He referred the court to Fortunatus Masha v. William Shija [1997] TLR 41 as his authority. Two, that, the decision was pronounced on 30/8/2022 but they got a copy of it on 7/9/2022. They then used some days to prepare it and filed it on 15/9/2022. It went through the admission processes. They got the stamped hard copies on 19/9/2022. Counsel submitted that counting from 7/9/2022 when they got a copy of the ruling up to 19//9/2022 when the application was marked i admitted, there is a period of 12 days which is excusable as per Vodacom (T) PLC V. Commissioner General of TRA, Civil Application No. 101/20/2021 (CAT). He went on to submit that the dismissed for failure to file a notice of representation but revision was counsel for the respondent has committed the same mista^';es in this case. IBP 2 [/ That there is no notice of representation but they have decided not to object to give an access to the ends of justice. He requested the court to grant the application. The respondents have the services of Mr. Silvester Damas Sogomba. As hinted above, Mr. Damas has no problem with the period when the applicants were in court, the period of the technical delay. His concern was I on the second period, the period from 30/8/2022 when the ruling was delivered to 19/9/2022 when this application was filed, 19 days. He says that this period has not been properly accounted for. Counsel has the view that I there is no proof that the applicants got the ruling on 7/8/2022. He is also challenging the statement that an application could be lodged on 15/9/2022 which was Thursday and be admitted on Monday 19/9/2022. He argues that the deputy registrar is very efficient, he could not take that long. In rejoinder. Mr. Kagashe reiterated his earlier position that they got a copy of the ruling on 7/9/2022 and lodged it on 15/7/2022 but got the stamped documents on 19/7/2022. A question may arise, when is a document is said to be filed in court? The rule is that, where fees are payable, a document is said to be properly before 3 the court upon proof of payment of fees. See John Chuwa v. Anthony Ciza [1992] TLR 233. The Court of Appeal had this to say: "According to the learnedjudge, the date of filing the Application is the date of the payment of the fees and not that of the receipt of the relevant documents in the registry. Mr. Ak aro, learned advocate for the applicant conceded that before me and I cannot fault the learned Judge there." But where fees are not payable, a document is said to be filed when it is admitted by the registrar. Payment of fees was evidenced by the ERV receipt. The existence of the ERV receipt was of paramount importance in establishing the date of filing. The other element was the endorsement of the registrar or registry officer on the document. That was the position. But, the days of hard copy filing are now on the extinction in view of the coming of The Electronic FiCing Rules GN 148/2018. The relevant provision is rule 21(1). It reads as under: "21(1) A document shall be considered to have been filed if it is submitted through the electronic filing system before midnighty 4 East African time, on the date it is submitted, unless a specific time is set by the court or it is rejected". (Emphasis added) That is to say a document once submitted to the registrar, then it is said to have been filed. I find this rule with some practical problems. I will try to show. A plaint or application is lodged electronically through the judicial systems and go to the registrar. He will check whether it is admissible or not. If he will find it admissible, he will admit it and pass it to the registry officer for assessment of fees. Reading through rule 21(1), it will be deemed to have been lodged once it is admitted by the registrar. But an admission is just the first step showing weaknesses of the rule. In practice the registrar will admit it and pass it to the registry officer who will assess the fees and command the system to release the bill/control number. The later will pass the control number to the party if he has an advocate or will print and give it to him if he is around. He can also send the control number through sms. The plaintiff I or applicant will go to the bank or an agent to pay. He can also pay through I M-Pesa, Tigo-Pesa, Airtel-Money etc. This takes time and sometimes days because people may not have the fees on hand. The system will acknowledge payment and issue an electronic receipt. The registry officer 5 command the system to generate 3 electronic receipts. One will be given to the party, the second will be filed in the file and the third will go to the account section for record purposes. No ERV receipt is issued. will then be stamped. This date must be the date of The hard copies electronic receipt. In other words, the date of the electronic receipt must be seen in the 'receipt stamp'. It will then move to the other party for service. Form the above, I can point out 3 weaknesses of rule 21(1). One, it takes for granted that the document will be admitted by the registrar something which is not always the case. Two, it contradicts the rule that a document is properly before the court after payment of fees. It has ignored the element of fees. And three, it did not foresee that there are other processes subsequent to filing of the document which may take time or which may lead to the document being rejected. The case at hand is an employment matter. Fees are not payable. There is no electronic or ERV receipts. There is a stamp of the registrar reading 'RECEIVED 19/9/2022'. I will thus take this to be the date of filing. The application for revision was struck out on 30/8/2022 making a gap of 19 days. Counsel for the applicant submitted that count^g should not start on 6 30/8/2022 because he got a copy of the ruling on 7/9/2022 making a gap of 12 days which is excusable on the strength of the case he cited. jCounsel for the respondent is resisting saying there is no evidence that he got a copy of the decision on 7/9/2022. I have considered the arguments closely. I have read the cases cited and cross checked the court records. Internal records of the court ^shows that much as the ruling was ready for collection on 3/9/2022 but no I communication was made to the parties to come and collect it. they also I show that the applicant came to collect it on 7/9/2022. What was said by the counsel for applicants was thus correct. Considering the period of delay of 12 days which is reasonable and the seriousness of the matter in controversy, I think that there is need to extend I the period to allow the court to resolve the dispute between the parties. I accordingly extend the time for 14 day^from today upon which the revision can be filed. It is ordered so. lacha Judge 25/7/2023 7 Court: Ruling delivered. Right of Appeal Explained. X.M. Mlacha Judge 25/7/2023 8