Charles Petro vs St. Carrol Institution (Civil Appeal No. 465 of 2021) [2024] TZCA 1295 (19 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KOROSSO. J.A., KENTE. 3.A. And MGONYA, J.A.^ CIVIL APPEAL NO. 465 OF 2021 CHARLES PETRO........................................................................ APPELLANT VERSUS ST. CARROL INSTITUTION .................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Siyani, J.) dated the 6th day of November, 2019 in Miscellaneous Labour Application No. 3 of 2019 JUDGMENT OF THE COURT 3 rd & 1 9 th December. 2024 MGONYA. J.A.: The appellant, Charles Petro, is dissatisfied with the decision of the High Court of Tanzania at Mwanza (Siyani, J.) in Miscellaneous Labour Application No. 3 of 2019; which declined his application for extension of time within which he could lodge an application for revision against the Award of the Commission for Mediation and Arbitration (the CMA). Briefly, the facts of this appeal go as follows: The appellant was an employee of the respondent herein, St. Carol Institution working as a security guard under an oral employment contract until 18th January 2011,

a date of his termination. Following the directive from the employer's Headquarters that all the employees who had no permanent written working contracts, the appellant inclusive, were supposed to sign written employment contracts immediately after the said directive, the said employees were given the contracts to read, and sign before they returned the same to the employer. Upon the deadline of the said exercise, all the employees adhered to the employer's directive except the appellant who demanded to be paid his terminal benefits for his ten years working with the respondent before he entered into the new contract. After a long discussion, no consensus was reached, as the appellant maintained his demands. It was for that reason, he was terminated for failure to obey the employer's directives. He was paid his benefits of which he was not pleased. He eventually filed his grievances before the CMA. According to the record of this appeal, the parties appeared before the Mediator who recorded that the applicant had admitted to have been paid terminal benefits. It is further indicated that, during mediation, the applicant agreed to withdraw the dispute on condition of being given assistance by the respondent. Thereafter, the Mediator indicated that the dispute was amicably resolved by the parties, and a certificate of settlement (CMA F 5) was signed by both parties. Following the parties' agreement, the respondent assisted the appellant by offering him 20 iron sheets. The

said assistance did not amuse the appellant, and he decided to file Revision at the High Court which was successful as the matter was remitted to the CMA for a fresh Mediation. It is noted from the record of this appeal that, a fresh Mediation was unsuccessful where the matter was forwarded to an Arbitrator. After hearing the parties, the Arbitrator found the appellant's termination was unfair and proceeded to order the respondent to pay the appellant the unpaid benefits to the tune of Tshs. 1,643,610/=. Again, the appellant was not happy with the CMA Award and he decided to file Revision Application No. 81 of 2017 at the High Court which he was unsuccessful. Dissatisfied, the appellant filed several applications seeking to revise the CMA Award but all of them were struck out on different procedural defects including improper citation of the applicable law. Due to the waste of time which was occasioned by filing wrong applications, he found himself out of time to enjoy his right for Revision. Hence, he filed Miscellaneous Labour Application No. 3 of 2019 after a lapse of four years seeking extension of time to file Revision. The said application was unsuccessful due to his failure to show good cause and account for the delayed period. Dissatisfied, he has knocked the doors of this Court, filing the instant appeal supported by a Memorandum of Appeal containing six grounds of complaint The grounds of appeal are reproduced as hereunder: 3

1. That the first appellate High Court Judge erred in taw when he failed to extend the time within which Appellant could file Application for Revision of the CMA Award issued on 12 - 5 - 2015 out of time;

2. That the first appellate High CourtJudge erred in law when he failed to grant appellant's prayers contained in the affidavit which the appellant had adopted during the hearing of the Appeal;

3. That the first appellate High Court Judge erred in iaw, when he failed to take into consideration that the reason for delay was due to the appellant's ignorance of the law and legal procedures as layman in law and the trial Commission for Mediation and Arbitration (hereinafter referred to as CMA) inability to supply to the appellant the necessary documents, Rulings and Proceedings, Drawn orders of the Commission (CMA) in time as rightly stated in page 4 o f the High Court Ruling that, applicant's sworn statements above, shows he being a layperson in iaw, encountered difficulties in prosecuting his previous applications;

4. That the first appellate High Court Judge erred in law when he failed to extend the time within which the appellant could file Application for Revision of the CMA Award in the dear grounds established by the appellant being a layman in law;

5. That the first appellate High Court Judge, erred in law when he failed to take into consideration the reasons for delay which were advanced by the appellant a layman in iaw; and

6. That the first Appellate High Court Judge erred in law when he failed to take into consideration that the intended appeal raised serious legal issues of inadequate CMA Award to the appellant for consideration and determination by the Court of Appeal o f Tanzania. When the appeal was called on for hearing, the appellant appeared in person unrepresented, whereas, the respondent had the services of Mr. Anthony Nasimire, learned counsel. When invited to submit in support of the appeal, the appellant sought and was granted leave to adopt his written submission to form part of his submission. Submitting on 1s t and 2n d grounds of appeal, it is the appellant's averment that, the learned Judge failed to grant his prayer of extension of time to file Revision by failing to consider the reasons he advanced in his affidavit. Referring to the 3rd , 4th and 5th grounds of appeal, which centered to the fact that the appellant is a layperson, it is the appellant's submission that, the High Court Judge failed to consider that the delay was due to his ignorance of law and legal procedures. That, being a layman he encountered difficulties in prosecuting his previous applications.

As to the 6th ground of appeal, the appellant further submitted that, the trial Judge failed to consider that the appellant raised a serious legal issue of inadequacy of the CMA Award. Referring the Court to the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women's Christian Association of Tanzania (Civil Appeal No. 2 of 2010) [2011] TZCA 4 (3 October 2011; TanzLII), the appellant argued that, it is abundantly clear that, the delay was caused by the CMA as it delayed to avail him with the certified copies of Judgment, Decree and Proceedings within time. Basing on what he submitted, the appellant beseeched the Court to aliow his appeal. On his part, Mr. Nasimire from the outset opposed the appeal. Having adopted the respondent's written submission, he implored the Court to consider the same in determining this appeal. In his written and oral submissions before the Court, responding to all the grounds of appeal conjointly, Mr. Nasimire, contended that, the appellant wasted three good chances given to him to perfect his application for Revision. According to the respondent's learned counsel, granting the appellant's prayer would amount to abuse of Court process. He further contended that, the appellant did not meet the criteria set out in Lyamuya Construction's case. He argued that, as the appellant 6

was negligent, this appeal should be dismissed because, ignorance of the law cannot be a good ground for extension of time. Moreover, the respondent's counsel argued that, the appellant did not account for each of the delayed days and further, that the Award subject to Revision, has already been executed. According to him, an application for extension of time has been overtaken by events. Having dispassionately considered the rival arguments, we find the main issue to be considered by this Court is; whether the appellant had in Miscellaneous Labour Application No. 3 of 2019, advanced sufficient reasons to warrant the grant of extension of time. It is trite law 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. See - Mumello v. Bank of Tanzania (Civil Appeal 12 of 2002) [2006] TZCA 12 (12 October 2006; TanzLII) and Bertha Bwire v. Alex Maganga (Civil Reference No. 7 of 2016) [2017] TZCA 405 (4 December 2017; TanzLII). It is also settled that, in construing whether the facts deponed by the applicant constitute good cause, it depends on the circumstances of each case. See - Wambele Mtumwa Shahame v. Mohamed Hamis (Civil Reference No. 8 of 2016) [2018] TZCA 39 (9 August 2018; TanzLII) and 7

Tanga Cement Company Limited v. Jumanne D. Masangwa and Amos A. Mwalwanda, Civil Application No. 6 of 2001 (unreported) and Henry Leonard Maeda and Another v. Ms. John Anael Mongi (Civil Application No. 31 of 2013) [2014] TZCA 178 (22 October 2014; TanzLII). In the latter case, the Court by referring the case of Henry Muyaga v. Tanzania Telecommunication Company Ltd, Civil Application No. 8 of 2011 (unreported), held that: "In considering an application under the rule, the courts may take into consideration ; such factors as, the length of delay, the reason for the delay and the degree of prejudice that the respondent may suffer if the application is granted." (Emphasize supplied). See also, Monday Kachingwe v. Athumani Salum Kitambazi (Civil Application No. 115/17 of 2023) [2024] TZCA 642 (26 July 2024; TanzLII). Apart from establishing that the delay was due to sufficient cause, it has been stated time and again that, when addressing the issue of delay, each day of the delayed days must be accounted for. See for instance, the case of Bushfire Hassan v. Latina Lucia Masanya, Civil Application No. 3 of 2007 (unreported). From the record of appeal, there were two reasons for delay as deponed by the applicant. To start with the first reason that, being a 8

layperson, he has encountered some procedural mistakes in his previous applications. It is settled that; ignorance of the legal procedures has never been a good cause for extension of time. See - Ngao Godwin Losero v. Julius Mwarabu (Civil Application No,10 of 2015) [2016] TZCA 2099 (18 October 2016; TanzLII) and Wambura N. J. Waryuba v. The Principal Secretary, Ministry of Finance and Another, (Civil Application 225 of 2019) [2020] TZCA 357 (21 July 2020; TanzLII). It is on record that, subsequent to the Award subject to revision, the appellant filed an Application No. 52 of 2015 which was struck out (Mipawa, J.) for non-citation of the proper provisions of the law. Thereafter, the appellant filed Revision No. 21 of 2016 which was again struck out for being improperly and incompetent before the court. Once again, the appellant filed Revision No. 81 of 2017 which was also struck out on 30th November, 2018 where the court found that the application is a mess as the applicant did not know what he was praying for. As rightly argued by the respondent's counsel, it is out of negligence in prosecuting his previous applications, that the applicant wasted three good chances he was given by the court. Therefore, for the High Court Judge to keep on extending time for him in the absence of good cause for delay to file the same application, would not only be a messing up with the law of limitation but also prejudice the respondent who has been in court 9

corridors responding to the appellant's improperly filed applications since 2015. Therefore, we find no reason to fault the High Court Judge's decision rejecting the appellant's application. On the finding of the High Court Judge that, the appellant did not account for each of the delayed days, it is on record of this appeal that, Revision No. 81 of 2017 was struck out on 30th November, 2018 and the application which is subject to this appeal was filed on 30th January, 2019. That being a case, even if we will agree with the appellant that since 2015, he was not idle as he was prosecuting the previous applications, the applicant had a duty to account for the sixty (60) delayed days as from 1s t December, 2018 a day after the striking out the last Revision Application No. 81 of 2017 to 30th January, 2019 when he filed an application subject to this appeal. Unfortunately, in his affidavit there is no any plausible and satisfactory explanation accounting for those days. Therefore, the High Court Judge, was right to reject his application as it is established that, extension of time is not a right of a litigant against the court, but the same will be granted upon establishing that the applicant was not at fault so as to let time lapse. We have also noted from the written submission filed by the appellant to support his appeal claiming that, the High Court Judge erred as he did not consider the legal point that the Award was inadequate. With due 10

respect, we are not at one with the appellant as this issue was not deponed in his affidavit rather, he raised it when arguing his appeal. Therefore, the issue of illegality being a new issue not raised at the High Court, the same cannot be raised during this appeal for the Court to hold that, the High Court Judge erred by not considering it. That said, we also find this complaint by the appellant is destitute of merit. All said and done, having found that the appellant's explanation for the delay was not convincing failing to establish sufficient cause for the delay, we dismiss this appeal in its entirety. The gist of this appeal being a labour matter, we make no order as to costs. DATED at MWANZA this 18th day of December, 2024. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 19th day of December, 2024 in the presence of the appellant in person and in the absence of the Respondent's counsel, is hereby certified as a true copy of the original.