CIVIL APPEAL NO 367 OF 2021 VIETTEL TANZANIA PLC VS SHABAN M SEMWENDA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MWANDAMBO. 3.A.. MAIGE, J.A. And KHAMIS, J.A.) CIVIL APPEAL NO. 367 OF 2021 VIETTEL TANZANIA P LC ............................................................................ ..... ..........APPEL VERSUS SHABAN M. SEMWENDA ............... ....................... ... ............RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mganga, J J dated the 20th day of August, 2021 in Miscellaneous Labour Application No. 10 of 2021 JUDGMENT OF THE COURT 7th &. 16th August, 2024 KHAMIS. J.A.: The present appeal assailsthe rulingand orderpassed by the High Court of Tanzania, LabourDivision on20th August, 2021 declining to extend time within which to file an application for revision of an award of the Commission for Mediation and Arbitration (CMA) dated 13th November, 2020. By way of background, the respondent instituted labour dispute no. CMA/DSM/KIN/518/2020/294 for breach of an employment contract and moved the CMA to order compensation to the tune of TZS 168,000,000.00 equivalent to 24 months' salaries, TZS 7,000,000.00 being the salary for the month of May 2020, one-month salary in lieu of notice and TZS 5,653,846.00 as severance pay. Upon trial, the arbitrator found the appellant liable for breach of contract and was ordered to pay the respondent the sum of TZS 91,000,000.00 as compensation and other terminal benefits. As the appellant was late to challenge the CMA award, she approached the High Court, Labour Division vide Miscellaneous Application No. 10 of 2021 for extension of time to file an application for revision on the grounds that: an electronic application was earlier lodged on 31st December, 2020 but its hard copy could not be presented as it was a festive season; there was ongoing negotiations for settlements between the parties which came to a deadlock on 23rd December, 2020 when the time to file revision had expired; the electronically filed application for revision was struck out for want of proper citation on 4th January, 2021; the advocate for the appellant conversant with the case fell sick from 26th to 29th December, 2020 and prescribed to a bedrest. The application was resisted by the respondent and the High Court (Mganga, J) was not amused by the reasons advanced by the appellant and thus, dismissed the application for want of merits. Aggrieved, the appellant knocked the doors of this Court with prayers for the quashing the impugned ruling and setting aside the orders made. The substance of the appellant's appeal is described in the memorandum of appeal dated 20th October, 2021 setting out five grounds of appeal, namely: one, the learned Judge of the High Court erred in law by failing to consider the length and reason of delay in granting extension of time; two, the learned High Court Judge erred in law by failing to consider the arguable point on revision and degree of prejudice to the respondent if time is extended; three, the learned High Court Judge erred in law by failing to consider the evidence provided to justify the extension of time; four, the learned High Court Judge erred in law and fact by holding that the appellant was bound to produce a receipt for payment made in the hospital as justification on granting extension of time; and; five, the learned High Court Judge erred in law and fact by delivering Judgement out of the court proceedings. At the hearing of the appeal, Messrs. Tazan Keneth Mwaiteleke and Raymond Swai, learned advocates, appeared for the appellant and the respondent, respectively. At the outset, Mr. Mwaiteleke abandoned the fifth ground of appeal and consolidated the remaining four into one ground of appeal, namely, the learned Judge of the High Court erred in law and fact in failing to consider the reasons given by the appellant to justify extension of time for the filing of an application for revision. He submitted that, the basis of the appeal was a refusal of the High Court to extend time for the filing of an application for revision against the CMA award delivered on 13th November, 2020. He contended that, on the basis of section 91 (1) of the Employment and Labour Relations Act, No. 6 of 2004 (the ELRA), a party aggrieved by an arbitration award issued by the CMA may apply for revision to the High Court, Labour Division, within six weeks of the date that the award was served on him. He reasoned that, since the impugned CMA award was delivered on 13th November, 2020 and a copy thereof served on the appellant on 18th November, 2020, the 42 days within which to file revision expired on 30th December, 2020. The learned counsel for the appellant argued that, instead of filing the application for revision on 30th December, 2020, the appellant lodged it electronically on 7th January, 2021 and manually on 8th January, 2021. He propounded that, the reasons for the delay were given in the affidavit in support of the application featuring at page 82 to 83 of the record. The learned counsel complained that, the learned Judge of the High Court erred in law and in fact by failing to take into account sickness of the counsel for the appellant as a good reason which prevented him from timely filing the application for revision. He relied on the decisions of this Court in Director Ruhonge Enterprises v. January Lichinga, Civil Application No. 1 of 2006 (unreported); and; Kijiji Cha Ujamaa Manolo v. Hote [1990-1994] 1 EALR 240. In the two decisions, the Court considered sickness as a sufficient cause for extension of time. Mr. Mwaiteleke further contended that, the learned Judge failed to consider the seven days' period of delay to file an application for revision was well accounted for by the appellant as depicted at page 83 of the record. He maintained that, the learned Judge equally erred in overlooking the fact that, the appellant was diligent in pursuing her rights as evidenced by the application for revision that was earlier on electronically filed but rejected a day later for non-compliance with the procedural requirements. The learned counsel also faulted the High Court for relying on irrelevant considerations in refusing to grant an order for extension of time. He argued that, the conclusions made by the Judge that the appellant had spoken lies and could have opted for services of an advocate other than Samwel Said Nyari who was sick to file an application, were not relevant considerations in the circumstances of the case. He submitted that, in so doing, the learned Judge wrongly resorted to extraneous matters in determining the application. On the other hand, Mr. Swai supported the decision of the High Court. He maintained that, the learned Judge of the High Court was correct in refusing to extend time for the filing of an application for revision and the reasons given were valid. He adopted the reasons assigned by the Judge in the impugned decision and submitted that, delay of even a single day, had to be accounted for which the appellant failed to do. In support of the contention, he cited Bruno Wenceslaus Nyalifa v. Permanent Secretary Ministry of Home Affairs, Civil Appeal No. 82 of 2017 [2018] TZCA 297 (14 December 2018, TANZLII) where the Court emphasized the requirement of accounting for every day of delay. The learned counsel for the respondent brushed off allegations that, the counsel for the appellant was sick at the time of filing the application for revision and argued that, going by the record, the said advocate had fully recovered even before expiry of the period for the filing of the application. He contended that, the alleged medical chit at page 148 of the record was actually a laboratory investigation request form which neither revealed the nature of sickness nor was it signed by a medical doctor who attended to the alleged patient. By way of rejoinder, Mr. Mwaiteleke reiterated his earlier submissions and asserted that, a laboratory investigation request form was equal to a medical chit. He argued that, since the form showed name of the patient, age, type of medical examination requested and it was signed by a medical technician, it suited to prove that, the advocate named therein had a health condition justifying his absence from work. He distinguished the case cited by the counsel for the respondent on the ground that, it was in respect of section 14 of the Law of Limitation Act (Cap 89, R.E 2019) (the LLA) whereas the law applicable in the instant case was rule 56 (1) of the Labour Court Rules, 2007. The law on extension of time is well settled. In a scintilla of authorities, this Court has maintained that, extension of time is not claimed as of right, but rather, it is in the discretion of the court. For the court to exercise its discretion in favour of an applicant, he must adduce sufficient reason to move it to that end. In Aliison Sila v. Tanzania Harbours Authority, Civil Reference No. 14 of 1998 7 (unreported), the Court pronounced itself that, where the time limited by the law or the rules has expired, sufficient reason should be shown for the delay. In Lyamuya Construction Company Ltd v. Board of Registered Trustees of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (unreported), the Court outlined general principles applicable in extension of time, thus: "...it is in the discretion o f the Court to grant extension o f time. But that discretion is judicial and so it must be exercised according to the rules o f reason and justice, and not according to private opinion or arbitrarily. On the authorities however, the following guidelines may be formulated", a) The applicant must account for all the period o f delay b) The delay should not be inordinate c) The applicant mustshow diligence, and not apathy, negligence or sloppiness in the prosecution o f the action that he intends to take. d) I f the court feels that there are other sufficient reasons, such as the existence o fa point o flaw o fsufficient importance, such as the illegality o f the decision sought to be challenged." Section 91 (1) (a) of the ELRA provides that, a party aggrieved by a decision of the CMA may apply to the High Court, Labour Division for 8 a decision to set aside the arbitral award within six weeks (42 days) from the date of service of the award on the applicant unless the award itself is challenged on improper procurement Rule 56 (1) of the Labour Court Rules which was relied upon to move the High Court, provides that, the High Court may extend time or abridge any period prescribed by the rules on an application and on a good cause shown. It is not in dispute that, the impugned CMA award was delivered on 13th November, 2020 and a copy thereof supplied to the appellant on 18th November, 2020. Therefore, 42 days within which to apply for revision in the High Court expired on 30th December, 2020. The record before the High Court shows the appellant had sought an extension of time to file revision against the impugned decision of the CMA on 8th January, 2021. The application was made by way of chamber summons supported by an affidavit of Samuel Said Nyari, learned advocate who, inter alia, deposed that: 4. That the failure o f the applicant to file the said application in time was not a result o f negligence and ignorance on his part, but rather,■it was a result o f the fact that, ongoing negotiations to settle the matter amicable had been ongoing and the same came to no avail on 22nd December, 2021 5. That further that the applicant became aware o f the failure o f negotiations went on to bonafidefy pursue justice in terms o f the revision on 23rd December, 2020 but due to the ongoing reasons the same had been stalled. By then time had already lapsed considerably against the applicant. 6. That the applicant did not sleep but went on to bonafidety pursue justice in terms o f revision to file the application electronically on 31st December, 2020 but the same was struck out on the 4*1o fJanuary, 2021 for want o fproper law to move the court. 7. That being an advocate o f the applicant responsible for filing o f revision application, I fell sick from 2&h up to 29h December, 2020 as I was suffering from malaria 6mps and UT7. I also had low blood pressure which led to shortness o f breath and had to be put on bed rest with drip. I used malaria dose for three days and injection for five days. Attached herewith marked "VTZ-2" are the collective copies o f the medical records from the hospital. " In a counter affidavit deposed by his representative, Bakari Ndeke, the respondent said that, the appellant acted negligently for failure to use its team of internal and external lawyers to file the application in time. It was averred that, as the head of legal services in the appellant company, Samuel Said Nyari ought to attend best hospitals in town and not a health center where he was treated. The medical chit annexed to the affidavit was challenged for lack of an 10 accompanied electronic fiscal device (EFD) receipt evidencing payment made at the hospital. The learned Judge of the High Court took the view that, the alleged filing of an electronic application for revision was a naked lies; the medical chit could not prove hospitalization of Samwel S. Nyari for lack of an EFD receipt to evidence that payments were made at the hospital; the deponent was not the only advocate and therefore another advocate should have acted to timely file the application; the appellant ought to have foreseen a possibility of a failed negotiation and thus prepare the application well in advance, and that; the court cannot sit and wait for the applicant (appellant) decide on when and how to file an application (for revision). On those reasons, he dismissed the application for lack of merits. As a general rule, an appellate court would not interfere with the discretion of the lower court, unless that discretion is shown to have been exercised arbitrarily, capriciously or perversely or where the court had ignored the settled sound legal principles resulting to a miscarriage of justice. It has been held that if the discretion has been exercised by the lower court reasonably and in a judicial manner, the fact that the 11 appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. Upon scanning the record and consideration of the parties' rival submissions, we noted that, while refusing the application for extension of time, the learned Judge omitted to examine the documents in support of the affidavit which intended to justify that, prior to the filing of the application for revision on 8th January, 2021 a similar application was electronically lodged but subsequently struck out for incompetency. We further noticed that, the learned Judge had rejected an assertion that, the counsel for the appellant was indisposed without scrutinizing the medical chit presented alongside the application to justify the illness. In paragraphs 3 and 7 of the affidavit in support of the application, the appellant attached copies of the electronic filed application for revision (annexture VTZ-1) and copies of the medical record from the hospital (annexture VTZ-2) respectively. None of these documents were subjected to an examination and analysis by the learned Judge who resorted to other considerations in rejecting the reasons advanced for the delay. 12 In paragraph 3 of the affidavit, the deponent stated that, the electronic application was filed on 31st December, 2020 but the hard copy was not physically lodged in court because of the festive season. Annexture VTZ-1 appearing at page 149 of the record shows the appellant had lodged the application electronically which was subsequently rejected for failure to annex a notice of the application. Annexture VTZ-2 to the affidavit manifested at page 148 of the record show Samuel S. Nyari had attended at Msisiri Dispensary, Mwananyamala, Dar es Salaam on 27th December, 2020 and medically examined at the instance of a medical doctor. The laboratory investigation request form contains results of the medical examination and a prescribed line of medication. In our view, this document was self-sufficient to attest to the deponent's health condition as deposed in paragraph 7 of the affidavit. Had the learned Judge given its due weight, he would have found that, the additional requirement to produce an EFD receipt was irrelevant in the circumstances of the case. For the reasons stated above, we are satisfied that the appellant was prevented by a reasonable cause for her failure to timely file the intended application for revision and therefore, we allow the appeal. Consequently, the ruling and orders of the High Court in Miscellaneous 13 Labour Application No, 10 of 2021 dated 20th August, 2021 are quashed and set aside and substituted with an order granting the application as prayed. The appellant is accordingly ordered to file her application for revision within thirty (30) days from the date of this Judgment. From the nature of the dispute, we order that each party shall bear own costs. DATED at DAR ES SALAAM this 15th day of August, 2024. L. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered this 16th day of August, 2024 in the presence of Mr. Mosses Kiondo, learned counsel for the applicant and Mr. Raymond Swai assisted by Mr. Bakari Ndeke, both learned counsel for the respondent, is hereby certified as a true copy of the original.