Charles Mkoloma v. The minister for labour & 3 others Civ no 19 of 2004

IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

CIVIL REFERENCE NO. 19 OF 2004

(CORAM: RAMADHANI, J, A, MUNUO, J, A, AND RUTAKANGWA, J, A,)

CHARLES MKOLOMA……………………………………………….APPLICANT

AND

THE MINISTER FOR LABOUR & 3 OTHERS…………….….RESPONDENT

(Reference from the Decision of a single Judge of the Court of Appeal of Tanzania at Dar es Salaam)

(Kaji, J, A.)

Dated the 24^th day of November, 2004

In

Civil Application No. 59 of 2003

----------------------------

RULING OF THE COURT:

4 & 14 December, 2006

MUNUO, J, A.:

This is a Reference from the decision of a single judge, Kaji, J. A., in Civil Application No. 59 of 2003 wherein the applicant unsuccessfully sought extension of time to apply for revision in Civil Case No. 90 of 2000.  A similar application had been rejected by the High Court on the 3^rd October, 2000.

The applicant lost his job when his services at Alluminium Africa Ltd. were terminated in May, 1994.  He appealed to the Dar es Salaam Concilliation Board and to the Minister for Labour in vain.  He then instituted Civil Case No. 90 of 2000, seeking among other reliefs, a declaration that he was still in the employment of Alluminium Africa Ltd.  He, however, withdrew the suit on the 19^th April, 2000, and, on the same day, filed an appeal to this Court which appeal he withdrew in May, 2000.  He then filed Review which the Court dismissed on the 30^th October, 2000 for being incompetent.  Subsequently the applicant filed Revision seeking to challenge the dismissal of the suit by the High Court.  The Revision was struck out for the reason that it was time barred.  The applicant then sought extension of time to file Revision in the High Court.  Upon losing the said application, he filed the present Reference.

The applicant stated in his affidavit in support of the application for extension of time to file Revision, and before us, that he delayed in instituting the Revision because he had to accompany his sister to Germany for medical treatment.  He further stated that he, too, suffered ill health for he contracted pulmonary tuberculorsis and had to undergo treatment at Mwananyamala Government Hospital.  The two medical problems, the applicant contended, prevented him from applying for Revision, and, or, extension of time to file Revision, early.  Had the single judge considered the ill health factors carefully, the applicant urged, he would not have rejected the application.  The Court, the applicant argued, should allow the Reference with costs.

Ms Otaru, learned State Attorney for the 1^st Respondent, supported the decision of the single judge on the ground that the contents of the applicant’s affidavit were duly considered but found to be lacking in merit.  She cited the case of Alhaj Abdallah Talib versus Eshakwe Ndoto Kiweni Mushi (1990) TLR 108 wherein the Court held, among other things that –

……the delay in lodging the appeal caused by the appellant’s absence from the country at one time and also by his advocate’s indisposition and temporary absence from the country at another time after the appellant himself had returned into the country in the instances of this case do not constitute sufficient reason under Rule 8 of the Court of Appeal Rules.

Ms Hamida Sheikh, learned advocate for the 2^nd and 3^rd Respondents, resisted the application for extension of time for the reason that the applicant did not adduce sufficient ground for extending time.  She observed that if the applicant had time to travel to Germany, he would, had he cared to, had time to apply for revision.

        The issue is whether there is cause to reverse the decision of the single judge.

       

        With regard to the applicant’s contention that he spent considerable time raising funds for his sister’s treatment in Germany, the learned single judge observed that –

…….the mere fact that the applicant was busy collecting donations from different donors for the treatment of his sister, is not sufficient reason for such inordinate delay.  He could have made a follow up of his case while collecting the donations.

        The learned single judge further observed that after the revision was struck out on the 24.10.2002 for being time barred, the applicant took his time and applied for extension of time on the 23.6.2003, some eight months later.  Moreover, noted the single judge, the applicant attended out patient treatment at the Mwananyamala hospital which means he was not bed-ridden so had he been diligent, he would have filed the intended Revision within time.

        The record shows that the revision was struck out on the 24^th October, 2002 and that the applicant got a copy of the ruling on the 30^th October, 2002.  His medical chits show that he contracted tuberculorsis in November, 2002.  We agree with Kaji, J.A. that as an out patient, the applicant could, if he had exercised due diligence, have processed the application for extension of time.  Under the circumstances, illness was not sufficient cause for extending time.

        Hence the Reference is lacking in merit.  We accordingly dismiss the Reference with costs.

 DATED at DAR ES SALAAM this 12^th day of December, 2006.

A. S. L. RAMADHANI

JUSTICE OF APPEAL

E. N. MUNUO

JUSTICE OF APPEAL

E. M. K. RUTAKANGWA

JUSTICE OF APPEAL

        I certify that this is a true copy of the original.

S. M. RUMANYIKA

DEPUTY REGISTRAR

View other posts for your benefit...