Apr 20, 2015, 10:22 AM
The High Court in Banjul recently dismissed an appeal filed by Sankung Sillah and Sons Limited following its dissatisfaction with the order of the Kanifing Industrial Tribunal in the ruling of Magistrate Nkumbe Ngube dated 26 October 2011, seeking that the High Court quash the said order and for the dismissal of the respondent’s (plaintiff John Mendy) suit for being three years out of time.
The appellant, in his grounds of appeal, argued that the learned magistrate erred in holding that the respondent delayed in bringing his suit to the Industrial Tribunal within time resulted from attempts by the respondent to settle the matter amicably by the use of Alternative Dispute Resolution methods.
The appellant pointed out that the learned magistrate failed to accept or realize that the respondent admitted that he was aware that the suit was to have been filed within six months, but continued in negotiating.
The appellant stated further that the learned magistrate failed to accept or realize that there was no evidence before the tribunal that the respondent and the appellant were engaged in negotiations for the past three years.
The appellant indicated that the learned magistrate failed to accept or realize that negotiating and employment dispute with the Labour Department, National Assembly or Alternative Dispute Resolution Secretariat in accordance with industrial relations principals, was not and could not be genuine excuse or reason why the respondent could not have file a suit within time.
The appellant stated that the learned magistrate failed to accept or realize that there was no evidence before him to prove that the respondent and the appellant were negotiating up to the week before Wednesday 26 October 2011, when the application for extension of time was made.
The learned magistrate, according to the appellant, failed to exercise his discretion properly in holding that despite the filing of the suit out of time, the appellant would not be prejudiced or suffer any loss if the suit was heard.
Justice Penda Dibba, who presided over the appeal case, stated that the counsel for the appellant in his briefs argued that there was only an issue for determination, and that was whether the Industrial Tribunal exercised its discretion justly and equitably pursuant to Rule 2 (2) of the Industrial Tribunal Rules.
She further stated that the counsel for the appellant submitted that the tribunal was not reasonable in exercising its discretion by allowing the respondent to proceed with his case three years out of time, and cited authorities in support of his appeal and urged the court to uphold the reliefs sought in the appeal and quash the ruling/order of the Kanifing Industrial Tribunal made on 26 October 2011.
Justice Dibba said that in his reply, the respondent objected to the appeal before the court that the appeal was incompetent because it was filed out of time and referred to order 53 Rule 5 (1) of the High Court Rules in that the appeal should have been filed 28 days from the date of the judgement or order or findings complained of, except in case otherwise provided for by any Act.
She said the respondent further argued that the Ruling appealed against was delivered on 26 October 2011, and the appellant filed his Notice of Appeal on 21 December 2011, which according to him, was out of time.
Justice Dibba added that the respondent asked the court to award costs to him since the appeal had caused delays of over seven months.
She said the respondent further submitted that the tribunal was right in the exercise of its discretion in his favour in extending the time for filing the suit, since he had tried to exhaust all possible avenues for an amicable settlement and asked the court to dismiss the appeal.
Having cited many authorities to support her verdict, Justice Dibba told the court: “I hold that the Notice of Appeal was not filed within the stipulated time. In view of this, the appeal is incompetent and is hereby dismissed with costs of D10,000 awarded against the appellant in favour of the respondent.”