walter kiwoli vs international commercial bank t ltd 2020 tzhcld 9 13 march 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS APPLICATION NO. 267 OF 2019 WALTER KIWOLI...................... ...........................APPLICANT VERSUS INTERNATIONAL COMMERCIAL BANK (T) LTD.....RESPONDENT RULING Date of last Order: 11/02/2020 Date of Ruling: 13/03/2020 Z.G.Muruke. 3. The applicant being aggrieved by termination of his employment, he decided to file Labour Dispute No. CMA/DSM/ILA/R.893/14/431 at the Commission for Mediation and Arbitration, against the respondent for unfair termination. On 14th August, 2017, the Commission for Mediation and Arbitration decide in favour of the respondent, by dismissing the Labour dispute No. CMA/DSM/ILA/R.893/14/431 and declare that the termination of the applicant was fair in both substantive and procedure. Consequently, the applicant filed Revision Application No. 407 of 2017 to challenge the award of Commission for Mediation and Arbitration. However on 25thApril, 2018 Revision Application No. 407 of 2017 was struck out by Honourable L.L.Mashaka, J for it being incompetent, and the applicant was given 14 days leave to file the competent revision application. On 2nd day of May 2018 the applicant filed second Revision application No. 216 of 2018. On 14th day February, 2019, Revision l application No. 216 of 2018, was struck out by Honourable S.A.N.Wambura, J for it being incompetent. Applicant was granted seven days leave to file competent revision application. That on 19th day of February, 2019 the applicant filed third revision application No. 92 of 2019. On 06th day May, 2019, same was struck out by this court for it being incompetent. The applicant was not given automatic leave to file another revision application. Thus, the applicant has filed this application for extension of time to file revision application out of time. Respondent filed counter affidavit to resist the application. On the date set for hearing Dickson Ngowi represented applicant, while Abdallah Kazungu, represented respondent. By consent hearing was done by way of written submission. Both parties complied with the schedule, hence this ruling. Applicant counsel submitted that, the law has provided powers to this court to extend or abridge time upon application. Rule 56(1) of Labour Court Rules, GN No. 106 of 2007 provide that the Court may extend or abridge any period prescribed by these rules on application and on good cause shown, unless the Court is precluded from doing so by any written law. From the rules it is observed that One extension of time is Court's discretion, Two, this discretion is exercisable upon application. Three this discretion is invoked upon good cause shown and Four discretion may be curtailed if there is written law forbidding the court from granting extension. It was further submitted that the phrase "good cause" is not defined under the Labour Court Rules, GN No. 106 of 2007, however, the Court of 2 Appeal in the case of Aidan Chale Vs. Republic, Criminal Appeal No. 130 of 2003 (unreported) discussed the phrase good cause by quoting with approval and accepting as correct in law definition given in an old English case of R. Governor of Winchester Prison, ex P. Roddie [1991] 2 all E.R 931, it was held as follows "good cause" will usually consist of some good reason why that which is sought should be granted. It does not have to be same thing exceptional. To amount a good cause there must be some good reason for what is sought. It was considered that it was undesirable to define good cause and it should be left to the good sense of the Tribunal which has to decide whether good has been disclosed." To constitute good cause several factors may be looked upon such as length of delays, diligent of the applicant, degree of prejudice to the respondent if time is extended and or illegality involved. The period of delay in filing fresh application for revision by the applicant can be conveniently be termed as a technical delay within the meaning of the decisions of the Court of Appeal in the cases of Fortunatus Masha Vs. William Shija and another, [1997] TLR 154 and Yara Tanzania Limited Vs. DB Shapriya &Co. Ltd, Civil Application No. 498 of 2016 [unreported]. It was held that....." a distinction should be made between cases involving real or actual delays and those like the present one which only involve what can be called technical delays in the sense that the original appeal was lodged in time but the present situation arose only because the original appeal for one reason or another has been found to be incompetent and a fresh appeal notice has to be instituted. In the circumstance, the 3 negligence if any really refers to the filing of incompetent appeal not the delay in filing it. The filing of an incompetent appeal having been duly penalized by striking it out, the same cannot be used yet again to determined timeousness of applying for filing the fresh appeal. In fact in the present case, the applicant acted immediately after the pronouncement of the ruling of this court striking out the first appeal." Applicant counsel further submitted that the impugned award if not challenged will cause injustice to the applicant, as there are serious triable issues to be determined on revision because the award has been improperly procured. To amplify points applicant counsel invited the court to the decision of the court of appeal in the case of Anche Mwendu Ltd and Others Vs. Treasury Registrar (Successor of Consolidated Holding Corporation), Civil Reference No. 3 of 2015 [unreported] that considered factors of shutting the doors for appeal. In the present case revision, there exist good cause, insisted applicant counsel. On the other hand respondent counsel submitted that; Key issue for determination by this court is whether the applicant has established sufficient cause or good cause for extension of time to file Revision application to be granted. It is respondent firm view that application submission is merely good for academic research but does not uproot the legal ground for support this application. Court record shows that even though the applicant was found to have filed incompetent Revision Application No. 216 of 2018, court exercised its discretion based on equity and fairness and granted leave to 4 applicant to file competent Revision application, for which he failed to exercised by filing third incompetent Revision application No. 92 of 2019 that was struck out by this court based on the applicant admission of the application defectiveness. Respondent counsel further submitted that it should be noted that discretion of the court it is the matter of equity. One of key principle of equity is that "He who comes to equity must come with dean hands." The applicant have failed to utilize effectively all chances given by this court due to lack of diligence and negligence in the part of the applicant. That being undisputed facts applicant he is precluded from using back door and persuaded this court to use again its own discretions. It is on record that, the discretion of this court has been fully exercised by this court in Revision Application No. 407 of 2017, and Revision Application No. 216 of 2018. In these Revision application applicant was given the chance to file the proper revision but he prefers to file incompetent Revision Application. Thus, no reason to justify extension sought. I have carefully considered and weighed the rival arguments from both parties. I feel it is necessary to reiterate, as a matter of general principle that whether to grant or refuse an application for extension of time like the one at hand, is entirely in the discretion of the Court. The Law, Rule 56(1) of the Labour Court Rules, GN No. 106/2007, provides that:- "The court may, extend or abridge any period prescribed by these rules on application and good cause shown, unless the court is precluded from doing so by any written law." 5 It is now settled principle of law that in an application for extension of time applicant is required to show sufficient cause for delay. Sufficient cause would be shown for the delay in taking the necessary steps in instituting an appeal or filing application as is the time prescribed under the specific law. However, it is to be observed that the court can only exercise its power under the law to extend time if sufficient cause is shown to explain the delay. But, that discretion is judicial and so it must be exercised according to the rules of reason and justice. From the affidavit of both parties following facts are not disputed. (i) Applicant filed 1st application, revision number 407/2017 that was struck out on 25th April, 2018 with leave of 14 days to file competent revision application. (ii) Applicant filed 2nd revision application number 216/2018 on 2nd May, 2018 that was struck out for incompetence by Honourable Wambura, J on 14th February, 2019 with leave of 7 days to file competent revision application. (iii) Applicant filed 3rd application revision application number 92/2019 on 19 January, 2019. However on 6th May, 2019 same was struck out in toto by this court for being incompetent. Hence present application for extension of time. (iv) Award sought to be challenged if extension is granted, is dated 14th August, 2017. From the above facts not in dispute it is clear that, applicant has been in this court for almost three years pursuing three named revision at different times, that ended being struck out for incompetence. For all three 6 years of filing incompetent application, Walter Kiwoli (applicant) has just narrated how his incompetent application were dealt with by different judge at different times. Does filing incompetent application amounts to sufficient cause to justify extension? To the best of my understandings in deciding whether or not to allow an application to file revision out of time, the court has to consider whether or not there is sufficient reasons. Not only for the delay, but also sufficient reasons for extending the time during which to entertain the revision. The term "sufficient reasons" has been lucidly expounded especially in the stated case of Ratma Vs. Cumarasamy and another [1964] 3 All E.R 933 where lord Guest was of opinion that, "Sufficient reason.......... .must be determined by reference to all circumstance of the particular case.... which will move the court to exercise its juridical discretion in order to extend the time limited by rules" In the case of Lyamuya Construction Company Limited Versus Board of Registered Trustees of Young Women's Christian Association o f Tanzaniaf Civil Application No. 2 of 2010 Hon. Massati, JA was of the following view; "As a matter of general principle, it is in discretion of the court to grant extension of time. But that discretion is judicial, and so it must be exercised according to the rules of reason and justice and not according to the private opinion or arbitrary. On the authorities however, the following guidelines may be formulated: (a) The applicant must account for all the period of delay: (b) The delay should be inordinate. 1 In case of Benedict Mumello Vs. Bank of Tanzania Civil Appeal No. 12/2002 (unreported) it was held that. "it was trite iaw that an application for extension of time is entirely in the discretion of the Court to grant or refuse it And that extension of time may only be granted where it has been sufficiently established that the delay was with sufficient cause." "All relevant factors must be taken into account in deciding how to exercise the discretion to extend time. These factors include the length of the delay, the reason for delay, whether there is an arguable case on the appeal and the degree of prejudice to the defendant if time is extended." In the case of Blue line Enterprises Ltd Vs. East African Development Bank Misc. Civil Cause No. 135/1995 where Katiti, J held that:- "It is trite law that extension of time must be for sufficient cause and that extension of time cannot be claimed as of right, that the power to grant this concession is discretionary, which discretion is to be exercised judicially, upon sufficient cause being shown which has to be objectively assessed by court." In the case of Republic Vs. Yona Kaponda and 9 others [1985] T.L.R. 84 the Court of Appeal of Tanzania set the yardstick of the circumstances under which extension of time can be granted it was started as follows:- It is now settled that in an application for extension of time applicant is required to show sufficient cause for delay. Sufficient cause would be shown for the delay in taking the necessary steps in instituting an appeal or filing application as is the time prescribed under the specific law. However, it is to be observed that the court can only exercise its powers under the law, to extend time if sufficient cause is shown to explain the delay. A part from the series of filing application, and being struck out, there is no counting of each day passed beyond six weeks from the date applicant served with copy of the award. Equally, the last revision application revision number 92 of 2019, was struck out for incompetence on 6th May, 2019, and served with copy of the drawn order on 09 May, 2019. From the date served with drawn order to the date of filing, 15 May, 2019 is a period of 7 days. There is no accounting of even seven day's passed before filing current application. In an application for extension of time, each dav passes bevond prescribed time counts and has to be counted for. What applicant has shown in his affidavit form paragraph 10 -12 is pure and simple negligence by the applicant counsel. It has been held time out of number, ignorance of law has never featured as good cause for extension of time. It is worth noting that a diligent and prudent party who is not properly seized of the applicable procedure will always ask to be apprised of it, for otherwise he/she will have nothing to offer as an excuse for sloppiness. In the application like this one, the court must also look into the reasons for the delay. Whose negligence is responsible for the delay? How much time has toiled since the decision seeking to be revised against was given until now? The answers are clear. It was applicant's counsels negligence in getting numerous applications to be struck out. This application is being brought after an inordinate delay of three years. The applicant has come to the court seeking permission to file revision out of time. The three revision applications were struck out because of the applicant's counsels self-induced negligence. To the best of my understanding the relief that the applicant is seeking as correctly submitted by Abdallah Kazungu for the respondent is equitable in nature. Therefore, this court should consider also the clean hands Doctrine in determining the merit of the applicant's flawed applications. The clean hands Doctrine precludes a party who is seeking equitable relief from taking advantages of his/her own wrongs. In the Misc. Civil reference No. 14 of 1998 between Alison Xerox Sila Vs. Tanzania Harbours Authority. Court of Appeal (unreported^ held that: "Lapses, inaction or negligence on the part of the applicant seeking extension of time, does not constitute sufficient cause to warrant extension of time under Section 14(1) of the Law of Limitation Act Cap 89 RE 2002." Indeed, it is my view that applicant case does not only demonstrate lack of seriousness and diligence, but also gross negligence on the part of the counsel for the applicant in handling the affairs of his client. In the case of William Shija Vs. Fortunatus Masha 1997 TLR 213 the Court of Appeal held that negligence on the part of the counsel who caused the delay cannot constitute sufficient reason. Unfortunately, it is the acts and omission of the applicant that has delayed the wheels of justice. Respondent should not be unfairly treated because of applicant counsel's negligence. To permit the applicant, another extension sought would neither be just, expeditious, economical, nor in the interests of justice. From the records it is clear that the respondent 10 as financial institution is prejudiced by the ongoing negligence of the applicant's counsel. To this court, applicant was doing trial and error for three years. Thus, there is no sufficient cause shown for this court to extend time to file revision. Accordingly application for extension of time is dismissed for lack of sufficient cause. Z.G.Muruke JUDGE 13/03/2020 Ruling delivered in the presence of Abdallah Kazungu for the respondent, also holding brief of Mr. Dickson Ngowi for the respondent. JUDGE 13/03/2020 11