Abood Magoiga

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO REVISION APPLICATION NO. 13 OF 2023 (Arising from Complaint No. CMA/MOR/104/2020 the decision and award of Arbitrator dated 23*^" August, 2021 and orders of Hon. Kalunde,3 in Labour Revision No.16 of 2021) ABOOD BUS LIMITED APPLICANT VERSUS WILBARD DEUDAS NJAWIKE 1®^ RESPONDENT MUSA JUMA RAMADHANI 2^° RESPONDENT HAMIS MANJALIWA 3*^^ RESPONDENT MOHAMED M. MSALAPA 4^" RESPONDENT RAMADHAN Y. MGOHA 5™ RESPONDENT JAMES J. PETER 6™ RESPONDENT Date of Last Order:14/07/2024 Date of Ruling:0g/08/2024 RULING MAGOIGA,J. The applicant, ABOOD BUS LIMITED filed this labour revision challenging the award of the Commission for Mediation and Arbitration (herein CMA) in Labour Dispute No. CMA/MOR/104/2020. In response, the respondents raised two points of preliminary objection to the effect that the instant application is legally incompetent for failure to file a mandatory notice of intention to seek revision contrary to Regulation 34(1) of the Employment and Labour Relations (General) Regulations G. N. No. 47 of 2017 and that it is time barred. However, the send limb of 1 obj6ction was droppad by counsal for rGspondont upon probed by the court to the effect of this court's ruling dated 05/07/2023. Facts pertaining to this application are not complicated. The respondents were employees of the applicant in various capacities. Following Covid pandemic outbreak in 2019, the applicant chose to lay off some of its employees. The respondents were those retrenched. Aggrieved by the decision of the applicant, the respondent filed a labour dispute which ended up in their favour. Aggrieved with the decision of CMA, the applicant came before this court for revision, hence, this ruling after hearing parties on the preliminary objection on point of law raised as to the competency of this application. When the remnant preliminary objection was called on for hearing, the applicant was represented by Mr. Juma Mwakimatu, learned advocate and the respondents has the legal services of Mr. Elibahati Akyoo, learned advocate. Mr. Akyoo when invited to argued the preliminary objection, was brief and focused to the point that, the instant application is incompetent for want of notice to file revision as required under Regulation 34(1) for failure to file Form No. 10. According to Mr. Akyoo, the applicant had a legal duty to file Form No.10 which is essence acts as notice of appeal. The learned advocate referred this court to the case of Access Bank Tanzania Limited Vs. Dickson Bhohela, Labour Revision No.85 of 2023 HC (DSM)at Tanzalii in which the court found an appiication without Form No. 10 incompetent and proceeded to have it strike out. The iearned Advocate for the respondent further argued that Reguiation 34 (1) used the word shaii which connotes mandatory duty to fiie one. Faiiure to fiie the said Form, insisted Mr. Akyoo, renders the application incompetent and implored this court to strike out this appiication for being incompetent for want of notice to challenge the award with no order as to costs. In response, Mr. Mwakimatu was not moved by submissions made by Mr. Akyoo despite not dispute the existence of Regulation 34 (1) and Form No. 10 but told the court that he had quite a different opinion in the use and interpretation of the Regulation 34(1)of the Employment and Labour Relations (General) Regulations, G. N. No. 47 of 2017 (to be referred as "Regulations"), use of Form No.10 and that jurisprudence of the court in interpretating of the same. According to Mr. Mwakimatu, Reguiation 34(1) is at PART IV of the Regulations which deals with Trade Unions, Employers'Associations and Federations. Mr. Mwakimatu pointed out that much as the appiication before this court is between Abood Bus Limited and individuals and none of them is trade union. Employer's association and nor federation, then. parties to this application do not fit in in the application of Regulation 34(1) of the Regulations as argued by Mr. Akyoo. Mr. Mwakimatu went on arguing that this part of the Regulations was not meant to apply to ordinary employer like the applicant who is artificial person registered under Companies Laws Act. Mr. Mwakimatu further argued that even if this court may interpret that the application was to be proceeded by the filing Form No. 10, he drew reference of this court to Regulations 99 of the Labour Relations Act, which provides that any person can depart from the requirement as they did because Form No.10 was meant to achieve two things; namely; one, to notify the Commissioner for Mediation and Arbitration that, one, of the parties intends to go the High Court for revision, and two,for Commission to prepare the record and send to the High Court. Mr. Mwakimatu added that once an application is filed as in this application, the requirement becomes redundant and that the requirement to file Form No. 10 is a procedural and technical rather than substantive in the circumstances, hence, implored this court not to entertain technicalities but focus on substantial justice and proceed to overrule the objection. On the interpretation of Regulation 34(1) of the Regulations, Mr. Mwakimatu told this court in their research they failed to get a Court of Appeal of Tanzania decision on this regulation but that their research shows High Court decisions which upon reading them noted that there are three school of thoughts on this Regulation. The first school is of High Court judges who employ literal interpretation and found that in the absence of Form No.10, the application becomes incompetent; the second school of thought are as decided in the case of Mwasaga William Mwambuli Vs. Shinyanga Municipal Council, Labour Revision No. 33 of 2021 that Form No.10 was only meant for CMA to bring the records to the High Court and no more, and once the record is available the requirement becomes redundant; and the third school of thought is as decided in the case of TRA vs. Mulamuzi Byabusha, Labour Revision No. 312 of 2021 in which it was held that Form No.10 is not mandatory and it cannot be used to defeat substantial justice. With the above school of thoughts, Mr. Mwakimatu concluded his submission by imploring this court to apply the third school of thought and proceed to overrule the objection and hear the revision application on merits. In rejoinder, Mr. Akyoo, submitted that all argued by Mr. Mwakimatu is misconceived and misleading. According to Mr. Akyoo, the reasons are myriad that the law is clear and the decisions of the High Court on this point are clear that is mandatory and has the status of instituting an appeal or revision in this Court for labour cases. On that note, the learned advocate for respondents implored this court to upheld the preliminary objection. This marked the end of hearing of this preliminary objection. Having heard and dutifuily considered the arguments for and against the preiiminary objection, I find that the whole contention is whether Form No. 10 is required before revision is filed or not? To make my day easy and easily answer this issue let me begin by quoting the contents of Form No.lO. "CMA. FIO. NOTICE OF INTENTION TO SEEK FOR REVISION OF AWARD (MADE UNDER REGULATION 34(1)) LABOUR DISPUTE NO BETWEEN APPLICANT AND RESPONDENT TAKE NOTICE that the applicant/respondent being dissatisfied with the Commission's award in the afore-mentioned Labour Dispute issued on................. by Honourabie DOTH HERBYintend to seek revision/review to the High Court of Tanzania(Labour Division)against the said award. Please forward as expeditiously as possible copies of the proceedings and award to the:- High Court of Tanzania Labour Division (Piace) Dated at. .this (year) Applicant. Presented for filing this Day of. .............(year) Registry Cierk Copy: Respondent." From the wording and contents of Form No. 10 as quoted above, In my considered opinion, one cannot fail to see that the above-named Form No. 10 was meant to act as NOTICE OF INTENTION to file REVISION in the High court for any party aggrieved by the decision of CMA. And it was this Form that instituted the anticipated revision by the applicant. On that note, the argument by Mr. Mwakimatu that Form No. 10 is only to notify the CMA to prepare forward the record to the High Court is but misconceived on his part. In my further considered opinion, one cannot pick the last paragraph alone and turn a blind eye to the clear wording of the Form No.10 that it was meant to act as notice of intention to seek revision and it was so simplified to enable parties to just fill in the blanks and have their revision instituted. Much as there is no Form No.10 as in this application no record has been brought up because the CMA are not aware of any existence if revision before this court. I have equally read the cases cited by both counsel for parties and to me I see no three school of thoughts but just two and on my part, and in the circumstances of this application, I do associate myself with the first school of thought that the wording in Form 10 literally pose no ambiguity and literal interpretation will achieve the intention of the parliament. With due respect to Mr. Mwakimatu, his arguments that Regulation 34(1) of the Regulations is at PART IV of the Regulations, hence, has nothing to do with this application is misconceived on his part and are hereby outrightly rejected. Furthermore, the arguments by Mr. Mwakimatu that I be guided by Regulation 99 and do away with the requirement of notice are misconceived on his part because notice in this revision is the one which 0 institute the revision and no way one can do away with notice and have the revision with legs to stand. That said and done, I find this preliminary objection merited and proceed to uphold it and consequently strike out the instant revision for being incompetent for want of notice with no order as to costs. It is so ordered. Dated at Morogoro-thi^^day of^|jpust, 2024 ■' \T - V- k M. MyVGdlGA JUDGE 09/08/2024 COURT: Ruling delivered today in chamber in the presence of Mr. Mashaka Sendege representative of the applicant and respondents in persons at // Ss/ //%\ --<7 \ <r" O / •/ v~.. /' s. M. MAGOIGA JUDGE 09/08/2024 COURT: : Ri^ol^^al^fully ex U./ S. M.'MAGOIGA / JUDGE 09/08/2024