werema samwel nyahori vs lizy investment co ltd 2021 tzhcld 22 12 march 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 67 OF 2020 BETWEEN WEREMA SAMWEL NYAHORI............................ APPLICANT VERSUS LIZY INVESTMENT CO. LTD............................... RESPONDENT RULING Date of Last Order: 10/03/2021 Date of Ruling: 12/03/2021 Aboud, J, This is an application for extension of time to file an application for revision against the award of the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute CMA/DSM/UBG/R. 136/18/136 delivered on 30/12/2019 by Hon. Wilbard G.M, Arbitrator. The application was made under the provision of section 94(1) (2) of the Employment and Labour Relations Act [CAP 366 RE 2002] (henceforth the Act) read together with Rule 24(1), 24(2) (a) (b) (c) (d) (e) (f) 24 (3) (a) (b) (c) (d) and Rule 56(1) (2) (3) and 55 (1) (2) of the Labour Court Rules GN. 106 of 2007 (herein the Rules). The matter was argued by way of written submission. The applicant and respondent were both represented by Learned Counsels, Mr. Hamza i Suleiman Nyahori and Mr. Sisty Bernard respectively. Both parties filed their submissions as ordered. Arguing in support of the application Mr. Hamza Suleiman Nyahori submitted that, after being dissatisfied by the CMA's award the applicant instructed his Personal Representative and gave him full instruction to act timely on his behalf to the intended application. The Learned Counsel submitted that, on 12/02/2020 one Salum Rugwiza, the intended Personal Representative of the applicant informed the applicant that he failed to register the application for revision due to changes of dispute filing in the Court. He further stated that, the intended Personal Representative informed the applicant that, he went to Court to file the case as instructed but was informed about the new case filling system that had to be registered through the online method. It was submitted that, the Personal Representative tried to register the intended application without success. To strengthen his submission he referred the Court to the copies of the documents which were due to be filed were as attached and marked annexture WSN2. It was further submitted that, the Personal Representative informed the applicant of his failure to file the intended application when time had elapsed and, advised the applicant to look for a lawyer to assist him. The 2 Learned Counsel was of argued that, the applicant acted within the specified time to apply for revision from 01/01/2020 to 12/02/2020 and up to 10/03/2020 when the present application was file. He added that the applicant delay to file the application for 21 days and he did not contribute to it as he had to find another lawyer to represent him in his case. The Learned Counsel sought support of his submission from the case of Ghania J. Kimambi Vs. Shadrack Ruben Ng'ambi, Misc. Appl. No. 692/2018 HC Lab. Div. Dsm where Muruke, J decided that, parties to the case should not be punished by the negligence committed by their advocates. Therefore, the Learned Counsel urged the Court to extend time for the applicant to file the intended application. Responding to the application Mr. Sisty Bernard submitted that, in this application time started to run on 31/12/2019 when the award was delivered. He stated that the applicant did not state any reason for his failure to file the intended application within 42 days as required by the law. He added that, it is a trite law the applicant had to prove that he acted diligently and even to account for each day of the delay which was not done the applicant herein. It was further submitted that, even if there was a change of filing cases system from manually to online registration, the applicant acted 3 negligently as he waited to the deadline date to file his application. It was also submitted that, the applicant failed to account for each day of the delay, so the application should not be granted. In conclusion, the Learned Counsel prayed for the dismissal of the application. Having gone through the rival submissions by the parties, Court's records as well as relevant labour laws, it is my considered view that the issue for determination before the Court is whether the applicant has adduced sufficient reasons for the grant of the application at hand. It is apparent that the time limit within which to file revision application against CMA's award is six weeks (42 days) as it is provided under section 91 (1) (a) of the Act. The relevant provision is to the effect that:- '91.- (1) Any party to an arbitration award made under section 88(8) who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for a decision to set aside the arbitration award, (a) within six weeks of the date that the award was served on the applicant unless the alleged defect involves improper procurement.' When a party delayed to file his/her application within the time limit provided above he/she has to file an application for extension of time to file his application. This Court is only vested with powers to extend time 4 upon good cause shown by the applicant as provided under the provision of Rule 56 (1) of the Labour Court Rules. The relevant provision is to the effect that:- 'Ru/e 56 (1) 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.' What amounts to sufficient or good cause have been discussed in a number of cases including the Court of Appeal in the case of John Mosses and Three Others Vs. The Republic, Criminal Appeal No. 145 of 2006 when quoting the position of that court in the case of Elias Msonde Vs. The Republic, Criminal Appeal No. 93 of 2005 where Mandia J.A held that:- lWe need not belabor, the fact that it is now settled law that in application for extension of time to do an act required by taw, all that is expected by the applicant is to show that he was prevented by sufficient or reasonable or good cause and that the delay was not caused or contributed by dilatory conduct or lack of diligence on his part.' The case of Lyamuya Construction Company Limited Vs. Board of Registered Trustees of Young Women's Christians Association of Tanzania, Civ. AppL No. 02 of 2010 CAT, Arusha laid 5 down principles to be considered in the grant of an application for extension of time. It was held that:- As a matter of general principle, it is in the 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 andjustice, and not according to private opinion or arbitrarily. On the authorities however the following may be formulated:- i. The applicant must account for all the period of delay. ii. The delay should not be inordinate. iii. The applicant must show diligence, and not apathy, negligence or sloppiness in the prosecution of the action that he intends to take. iv. If the Court feels that there are other reasons, such as the existence of a point of law of sufficient importance, such as the illegality of the decision sought to be challenged.' In the present application the applicant's main reason for the delay of filing the intended revision application is due to the change of systems in filing/registering cases from manually to online. As stated in the provision above time limit to file an application to challenge the Arbitrator's award starts to run from the date the award was served to the applicant. It is on record that, the award was served to the applicant on 03/01/2020, which means the due date for filing the intended application was on 14/02/2020. As rightly questioned by the Respondent's Counsel why did the applicant and his representative waited to file the 6 intended application on the deadline dates. Such an action in my view amounts to negligence on the part of the applicant and his representative. The applicant also averred that his representative informed him about the failure to file the intended application on 12/01/2020 which was before the deadline. Under such circumstances it is my view that if the applicant had acted diligently, he would have found an Advocate to assist him in filing the application timely because the documents were already prepared as evidenced by annexture WSN2. However, the applicant negligently waited until the time elapsed as rightly submitted by the respondent's Counsel. It is also my view that, even if the Court would believe the applicant's assertion that his representative failed to file the application due to the change of systems of filing cases, still had the duty to account for each day of the delay from 14/02/2020 to 05/03/2020 when he filed the this application. Applying the principles laid down in Lyamuya Construction (supra) in this application the applicant did not state any reason for his delay from such date to the date of filing the present application. Thus, it is my view the delay of 21 days had to be accounted for and, the applicant ought to have stated reasons for his delay on each single day which has passed. 7 On the basis of the above analysis, it is my view that the applicant has failed to account for the delay. Each day of the delay had to be accounted for and the applicant has failed to do so. Thus, I find the present application has no merit and is dismissed accordingly. It is so ordered. I.D. Aboud JUDGE 12/03/2021 8