tanzania telecommunications corporations vs henry kyaruzi 2021 tzhcld 2109 10 december 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM CONSOLIDATED REVISION APPLICATION NO. 349 OF 2021 AND 352 OF 2021

BETWEEN TANZANIA TELECOMOMMUNICATIONS zx

CORPORATION APPLICANTZRES PON DENT

HENRY KYARUZI

RULING Date of last order:23/ll/2021 <X Date of Ruling: 10/12/2021 B.E.K.Mganga, J . Henry Kyaruzi, the respoqdgjrt^in revision application No.349 of 2021 and respondent in ^i^jon N°-252 of 2021 was an employee of the Tanzania Telecommunications Corporation. It happened that their relationship wentCgi^as a result Mr. Henry Kyaruzi filed labour dispute No. CMA/DSM/IteA/874/19/266 at CMA. On 3oth July 2021, Hon. Lucia^Ch^santus Chacha, Arbitrator issued an award in in favour of the said Henry Kyaruzi ordering the Tanzania Telecommunications Corporation to pay him a total of TZS 40,129,920/=. Tanzania Telecommunications Corporation was aggrieved by the said award as a result she filed this revision application No. 349 of 2021. On the other i hand,Mr. Henry Kyaruzi was not satisfied with the award as a result he also filed revision No. 352 of 2021. As all these applications emanated from the same CMA proceedings and same award. I therefore, issued a consolidation order. I perused the CMA record and find that Henry KyaTuzi (PW1) not under oath. These were the only witnessed who^estified at CMA. When the application was called for hearing and^5e£ore hearing grounds advanced by the applicant in the affidavit<i^^port of the application, I asked both counsels to addressee coi^the effect of the evidence of (( DW1 to be recorded not under oaf^r^affirmation. Responding on thississbe, Ms.

Zamaradi Johanes, State Attorne on behalf of the Tanzania telecommunications corporation, submitted that JO) the omission<?inva[idated the evidence of DW1 and that there is no oo evidence^jO^support of the application by the Tanzania Tei^ommunications corporation. She therefore prayed CMA proceedings be nullified and the award be set aside and order trial de novo. 2 On the other hand, Mr. Augustino Ndomba, counsel for Henry Kyaruzi, submitted that the omission vitiated the CMA proceedings. He submitted that the only remedy available is to order trial de novo. I entirely agree with submissions of both couns>els\ that^the omission vitiated the entire CMA proceedings and ithet^award^rising therefrom as it was held by the Court of Appeal^ in the case of Tanzania Portland Cement Co. Ltd V. Ekwabi Majigo, Civil Appeal No. 173 of 2019 (unreported), Joseph^Elisha K Tanzania Postal Bank, Civil Appeal No. 157 2^^[unreported], Unilever Tea \\ Z) Tanzania Limited vs. Davis PauJpChaula, Civil Appeal No. 290 of 2019 (unreported) to men^ior^by a few. Taking an oath/'OEzaffirmation before a witness testifies is a mandatotV^qu^ement of the law. This mandatory requirement is provided^rorxuhder section 4(a) of the Oaths and Statutory Declaration Act[cafh/34 R.E 2019] and Rule 25(1) of the Labour Institutions (Mediation and Arbitration Guideline) Rules, 2007, GN. No. 67 of 2007. The logic and

reasons for the position taken by the Court of Appeal in my view, is that, when a witness testifies under oath or affirmation, promises to tell nothing but the truth and submits himself or 3 herself to his/her God or any other superior power that he /she should be punished if he/she tells lies. This does not mean that all who takes oath or affirmation tells the truth, but the court or a judicial body, in the first place has to be assured that the witness will tell nothing but the truth. No judicial officer is ready to waste time and other^ resources knowing that the witness will tell lies. Not only that but/also,\'tal$ing an oath or affirmation is compliance with the law. The courts<are there to ensure that there is compliance with the law. Ifday^are enacted and being ignored, then there is no need of enactincpthem. But the effect of failure to comply with the law may /.have, a^far-reaching effect to the society, Which is why, laws has^tp be complied with. For the foregoing, I hereby nullify CMA proceedings, set aside the award arising therefrom and order trial de novoxbefore a different arbitrator without delay. FortheToregoing, I hereby nullify CMA proceedings, set aside the award arising^therefrom and order trial de novo before a different arbitratonwithout delay. I further order that the dispute should retain its CMA number. B.E.K. Mganga

JUDGE 10/12/2021 4