thilak kumar naidu hanumantha vs mount meru retailer company limited 2022 tzhcld 731 24 july 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 357 OF 2021 BETWEEN THILAK KUMAR NAIDU HANUMANTHA .......................... .....^.......APPLICANT VERSUS ; MOUNT MERU RETAILER COMPANY LIMITED............................. RESPONDENT JUDGMENT % S.M. MAGHIMBI, J: . y < ?%.J/ This application was lodged under the.prbvisions of Section 91(l)(a) & (b); 91(2)(a)(b)&(c), 94(l)(b)(i) of the-Employment and Labour Relations Act, No. 6 of 2004, ;Rule'?2<2)(a)(b)(c)(d)(e)(f) and 24(3)(a)(b)(c)(d), X X 28(l)(a)(b)(c)(d)(e)' of the "Labour Court Rules, 2007, G.N. No. 106 of 2007 ("the Rules'^.The Applicant moves the Court for an order in the following terms: 1. That, this Honourable Court be pleased to call for and examine the X / record of the proceeding of Commission for Mediation and Arbitration of Ilala/Kinondoni Dar es salaam in CMA/ILA/163/21 and satisfy itself as to correctness, legality and /or propriety of the Ruling thereto. i 2. That, this Honourable Court to order the Commission for Mediation and Arbitration to determine the matter on merit. 3. Any other orders that this Honourable Court deems fit and just to grant. The application was supported by the affidavit otThilak Kumar Naidu Hanumantha, the applicant, dated 08th September,. 2021. Oh'their part, the respondent opposed the application by filing a notice df<opposition under the provisions of Rule 24(4)(a) of the Rules graying that the application be - - \ 1 dismissed. Before this court, the - applicantwas "represented by Ms. Rose Nyatega, learned advocate from the Legal and Human Rights Centre while the respondent enjoyed the'services of Mr. Issa Mavura, learned advocate. Brief backgroundlof the; matter is that the applicant was employed by the respondent'ih '2019.:as^Chief Operating Officer with a salary of 2,200 USD per month. Howbyef, after working for sometimes, in May 2019, he was transferred to work for Mt Meru Millers Ltd, a sister company of the respondent under the same position. It is alleged by the applicant that since his transfer to Mt. Meru Millers, he has never paid his salaries, incentives or performance bonuses as it had been provided for in their employment agreement. Following lack of payments for a while, the applicant consulted 2 his superiors to understand the reasons for the delay in payment and there was never a precise answer. The applicant further alleged that following his numerous follow ups of his salaries, the respondent instituted a criminal claim with the police against the applicant, he was arrested sometimes in July 2020. The applicant was arrested and restrained .under-police custody for 9 days and he was released. Upon his release, he took it that his employer who is the respondent, did not mean well with his numerous inquiry of his salary and he hence instituted claims for his salary?at the Commission for Mediation and Arbitration for Singida (which. was'/received and marked as <■; \\ Dispute No. 17/2020. In the said dispute, the applicant unsuccessfully sued the respondent for his failure' to pay salaries. When the dispute atsth6 GMA was still going on, the applicant was re- arrested and remanded. Imprison in Singida under economic offence charges of Money Laundering!(Annex TKNH-4 to the affidavit), an offence which was unbaiiable. The’dispute collapsed at the initial stage when the CMA dismissed his application for condonation of time on the ground that the applicant had no sufficient reasons to warrant the condonation. Being dissatisfied with the decision of the CMA and while in prison, he struggled to get representation and engaged an advocate who helped him to file Revision with the High 3 Court-Dodoma zone in order to revise the decision of the CMA-Singida. While the revision was still pending at the High Court Dodoma, the advocate came to realize that he had sued a wrong party and prayed before the Honorable Court to withdraw the revision, a prayer which was granted (Annex TKNH-3 to the affidavit). The applicant's charges against him were . substituted to a lesser offence of stealing cash amounting to 160,399,000/-..yzS and he was granted bail, almost a year after the initial^charges of economic (Annex -.. x*, TKNH-5). After his release, the applicant .’continued to seek for legal assistance in order to bring another case against his employer Mt. Meru Retailer Co. Limited, the respondent herein. Being out of time, the applicant unsuccessfully approached, the CMA at Dar-es-salaam seeking, amongst other orders, for .condonation of time to lodge the dispute. Following 'vI --z dismissal of his'subsequent application, the application lodged this revision on the ground (that the CMA failed to consider the authentic facts and law that: 1. The respondent and its sister company Mount Meru Millers Limited for him to make follow -up on the matter at hand. 4 2. The Applicant was in custody at Singida prison therefore it was difficult for him to make follow-up on the matter at hand. 3. The Applicant is the foreigner who has no relatives in Tanzania it was difficult for him to find a person to assist him in following the matter at hand. In addition, he di not have financial muscles to hire legal counsel to handle the matter on his behalf because h'ewas depending in the salary from the employer who refused to pay. When the Applicant came to get pro-bono legal services from Advocate Rose Suleiman the time of filing the dispute^hacl^already lapsed. J / > “t \ 4. The Applicant has already took some measures of filing the labour dispute in the commission for Mediation and Arbitration at Singida via Labour Dispute;No$GMA/SGD/MJN/17/2020 which ended in High Court of Tanzania (Labour)Division) Dodoma. ’’ ‘ \ \ On;,the. day .of the hearing, Ms. Nyatega submitted the applicant's reason, for tite delay as averred in the affidavit to be several encounters of police arrest and criminal charges. That sometimes in July 2020, the respondent lodged a criminal claim with the police against the applicant; the applicant was arrested and restrained under police custody for 9 days and he was released. Upon his release, he understood that his employer who is 5 the respondent did not mean well with his numerous inquiry of his salary and he therefore instituted claims for his salary at the CMA in Singida which was received and marked as Dispute No. 17/2020. She submitted further that in this dispute, the applicant sued the respondent for his failure to pay salaries where after-numerous back and forth, the CMA reached a decision that the applicant hadx.no sufficient reasons to extend time for the applicant to lay down hisclaims. At that time, when the case was still going on, the '" applicants was re-arrested and \\ ’ , * * remanded in prison in Singida under Economic offence charges of Money Laundering amounting to 49 milliohxIZS in Economic Case No. 3/2020. Copy of the Charge sheet was attached in the affidavit. That after his'case'finished at the CMA, he was in remand and his offence was 'uhbailable.-Being dissatisfied with the decision of the CMA and while in prison/ he struggled to get representation and engaged an advocate * * i * named Rose Suleiman who helped him to file Revision with the High Court- \ * Lt' J Dodoma zone in order to revise the decision of the CMA-Singida. While the revision was still pending at the High Court Dodoma, the advocate came to realize that he had sued a wrong party and prayed before the Honorable Court to withdraw the revision, a prayer which was granted (Copy of the 6 order attached as annex TKNH3 Eventually his charges was substituted to a lesser offence of stealing cash amounting to 160,399,000/- TZS and after the charge was substituted the applicant was granted bail which was almost a year after the initial charges of economic offence. After his release, the applicant continued to seek for legal assistance in order to-bring another case against his employer as it appears on his contract who is Mt. Meru Retailer Co. Limited and being out of time, the applicant humbly approached the CMA to seek for condonation, an application which was denied hence f '■*?*- I 1' s this revision. ! (' 11 To support her submissions; Ms. htyatega cited the case of Kalunga J & Co. Advocates Ltd Vs. NBC, 2006TLR 236, where the court held that: "the court has discretiori to extend time, but such extension can only be done if sufficientreason has been shown." She.then-submitted that the million dollar question here is whether the applicant sufficiently justified his delay and how can a court determine that X? - z the saicTfeasons are sufficient. She then referred the court to the case of Yazid Kassim Mbakileki Vs. CRDB(1996) LTD Bukoba Branch & Another, Civil Application 412/04 of 2018 where in this decision the court referred to the case of Tanga Cement Co. Ltd Vs. Jumanne 7 Masangwa & Another, Civil Application No. 06/2001 where it was stated: "What amounts to sufficient cause has not been defined, from the cited cases, a number of factors have to be taken into account including whether or not the application has been brought promptly, * \ \ \ ' the absence of any valid explanation for delay and iack'pf diligence on the part of the applicant." । Ms. Nyatega then submitted that once the. applicant saw that the respondent did not mean well by fabricating'charges against him after his <■ - *f request for his salaries and incentives, he decided to act back by opening X ''~z various suits to seek for his rights despite the challenges that he was doing X ' V / - x X s, that from custody. , Further, that throughout the time which is said to have been lost, the, applicant,hi’as continued to work for the respondent without J pay and .alsoxfhe; respondent knowingly accommodated the applicant and enjoyed or benefitted from his skill while he was still working for him. That at all this'time up to date, the respondent has neither terminated the applicant nor paid his salaries as claimed. She concluded by praying that this court be pleased to grant the application otherwise the applicant will fail to return to his home country and will continue to suffer irreparable loss. 8 In reply, Mr. Mavura submitted that it is on record in particular para 6 of the application for condonation No. 163/2021 the applicant asserted that he was late for about 750 days, he therefore ought to account for each and every day of delay which starts from May 2019 to when he applied for the application for condonation. He supported his submissions'by-Citing the case S' /\ ' of Omari Shabani S. Nyambu (as Administrator of the estate of the late Iddi Moha) Vs. Dodoma Municipal Council and two others, Civil Application No. 125/03 of 2020 where the Court of Appeal set the principles for a court to grant extension) oftime^citing the case of Lyamuya. ’ r \ i ‘ \ , ! That the first principle is that the-applicant rriust account for all the period J) of delay, the second one being that the delay should not be inordinate and the third one is that the applicant must show diligence and not apathy, ’%J7’ negligence.or sloppiness in the prosecution of the actions that he intends to take. He submitted further that another principle is that if the court feels that there, are other) sufficient reasons such as existence of a point of law of sufficient importance such as the illegality of the decision sought to be challenged. Mr. Mavura further cited another decision of the Court of Appeal, in Civil Application No. 37/1 of 2020, Airtel Tz. Ltd Vs. MisterLight 9 Electrical Installation Co Ltd & Another, in particular at page 11 where the Court of Appeal cited the case of Bushiri Hassani and had this to say: "delay of even a single day has to be accounted for otherwise there will be no point of having rules prescribing periods within which certain steps have to be taken." <' He then argued that the delay of 750 days frbm'May, 2019 to 08th June 2021 when the applicant filed the application .forcpndonation at the CMA in Dar-es-salaam, is inordinate and therefpre the applicant ought to account ■ ( ‘x -v ■'—'' for each and every day of delay, That'the applicant was not diligent and moreover there is nowhere imthe recprdzfrom the affidavit of the applicant both from the CMA to the .current application, where the applicant has pleaded or expounded any area concerning illegality of the decision. ’\ On the' issue''of criminal charges being fabricated against him, Mr. X— Mayura's reply was that the issue is not pleaded in the affidavit hence it is just words from the bar. He also replied that the duty to institute criminal case is laid upon the office of the National Prosecution Services Office under the supervision of the Director of Public Prosecutions, therefore in no way the respondent or any other company related to the respondent had any io control of the institution of a criminal case against the applicant. He submitted further that it is on record from the applicant's application that the criminal case was filed against him sometimes in August 2020 but his main claim/dispute forming the application arose sometimes in May, 2019. He argued that a dispute of salary has to be filed in the<MA<within 60 .days from the date it arose in accordance with Rule 10(2) of the G^N. Nd; 64/2007. That the averment that the applicant was being given promised by his superior is denied in toto because the applirant cpuldmot stay without salary for more than a year without doing anythihg.''That it has been decided in i' \ : *. 1 several cases that the purpose of-.putting-time limits is to put litigations to an end and not allowing parties to come to court at any time they wish. He concluded-that'the)main issue before this court is whether the applicant has.demonstrated sufficient reason and account for each and every day of delay. That the'submissions from the learned Counsel for the applicant has totally failecTto account for each and every day of delay from May 2019 to August 2021. His prayer was that this application be dismissed with costs. In rejoinder, Ms. Nyatega while answering Mr. Mavura's question on survival of the applicant without salaries, she submitted that the applicant was surviving in his personal savings and that still being an employee of the ii respondent, he was benefitting from his utilities which were paid by the company and that is why he chose to continue consulting his employer on the issue of his salary. That the animosity only arose once he was arrested after his employer reported him on those economic offences. Further that within that time, his employer being Mt. Meru Retailers continuously referred him to seek help of Mount Meru Millers in payment of his salaries and also Millers referred him back to Retailers and once they were tired of this back ',x< \ . ,r and forth is when he was arrested for the economic'charges. She reiterated her submission in chief that the applicant was employed in May 2019 and he 1 •' Vi was never paid his salaries since then, it was-ih July 2020 that he first tabled his claim for his salary arrears On the issue/Of;-fab.ricated charges, Ms. Nyatega submitted that the ■ r / ‘J . '■ ■ respondent?was" nqt'Sure^of the amount to be charged to the respondent. On Mr. Mavura's submission that the criminal charges started in August 2020,/she replied that the case at the CMA was instituted in July 2020 therefore for his argument on the lapse of days is of 750 was unmerited. On the cited case of Omari Shabani which laid the principles for extension of time. Ms. Nyatega reiterated her submissions in chief on the issue of consultations and arrest and further reiterated her prayers sought therein. 12 I have considered the submissions of the parties, I find this case to be very peculiar in nature and hence my determination will also be peculiar. The peculiarity starts with the nature of the claim that the applicant intends to table before the CMA, claim of salary arrears, particularly the fact that he has worked for the respondent for more than a year without^ single salary. I have further considered the fact that the applicant is a foreigner who will eventually have to leave the country and the fact that up until now, there is 'X ! ■ •1 - ? • x '■.'i. no party which has pleaded that the applicant was terminated from his Xx \ \ \ "W In, employment. J ? Having considered those fa<lsxand.particularly the fact that for all the time before he lodged the. claim at the CMA, his salaries were not paid to him, then the question to be jdetermined would have been as to when the (‘ ■ A time limitation for claims of salaries would begin under such circumstances. According-to the applicant's submissions, he had never been paid his salaries but he had lodged his application in August 2021, at all these times, he was still working for the respondent and there is nowhere in the records that the applicant was ever terminated. This means, the breach was a continuing one and the CMA ought to have proceed with claim only to draw the line of claim 13 of arreas where need be, as a matter of evidence and not at the onset of the application because the breach was a continuing one. It is pertinent to note that in cases of continuing breach, a fresh period of limitation accrues every time during which the breach continues. In such > J p cases, the criteria for determination of the period whefbthe cause of action arose is not whether the right or its correspondingx;obligation is a continuing one, but whether the wrong is acontinuing one. The issue of continuing breach was well elaborated; Jn ani Indian case; which is persuasive to us, the case of Balakrishna V..D7M. Sansthan, AIR 1959 ;... J SC 798 where the Supreme Court'pf India, while dealing with the question /Vi of a continuing wrong under Section 23 of the Indian Limitation Act had this to say: . "It is trie yery essence of a continuing wrong that it is an act which .^.creates aj,continuing source of injury and renders the doer of the act responsible' and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act 14 constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterized as continuing wrongs that Section 23 can be invoked." (Emphasis is'mihe):, A V* Coming to the case at hand, the crucial fact<Jhat the CMA should have considered is that the salary of the applicant had never been paid, neither X * was the applicant terminated from his employment;( Therefore in my view, f -X i ' -X given the allegation that the applicant .has never been paid his salary, the time of breach of the contract Will, be between when the applicant was employed till August 2020xwhen he first approached the CMA, hence the breach of contract,by-the-erhployee would be a continuing one. The case •A \\ would have been^differept if the applicant was subsequently paid other salaries and his claim.-was on salaries not paid in the past, then it would have been considered as he delayed to claim the arrears of salary. But the case at hand is' different because the allegation is that he continued to work without his salary being paid. So for me, the period between May 2019 to August 2020 would have been subjected to evidence considering the allegation that the, applicant was never paid his salaries. So up until August 15 2020, if the employer fails to provide proof that the salaries were paid, then it is said to be a continuing breach of the provisions of Section 27 of the Act. The important thing is that the issue has to be determined upon preponderance of evidence. This very reason would have form a basis for extending time to the applicant. Coming to the remaining period, after the^dispute was. lodged, the applicant has submitted several evidence of being in^pqlice custody and remand custody following an unbailable oTfencexHe'also sued the wrong party which contributed to the ,delay. 'in tfievcited case of Yazid Kassim '■X._ ;) Mbakileki Vs. CRDB(1996) LTD^Bukoba Branch & Another (Supra), oU the court emphasized that.although what amounts to sufficient cause has not been defined, -a -ntirnber/of factors have to be taken into account including whetherxor.nptjthe application has been brought promptly, the absence of any valid, explanation for delay and lack of diligence on the part of the;applicanf. In the application at and, the important issue to note is that the applicant has been in court corridors chasing his rights and has not slept on his rights. Even while he was in police custody, he sought for legal assistance and lodged a revision at the High Court Dodoma only to find that he had sued a wrong party. 16 Owing to what I have elaborated above, I find it just to exercise my discretionary powers to extend time. The application is hereby granted; the order of the CMA dismissing the dispute is hereby revised and set aside. The applicant is granted condonation of time to proceed with the dispute at the CMA. Given the fact that the applicant is not a Tanzaniamcitizen,’the djspute s X \ r shall proceed on merits according to the law and in an expedited manner. ' s X “• r This being a labor matter, I make no order as to costs.. < 17