ANNA SHANALINGIGWA V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 19390 OF 2024 (Arising from an Award issued on 24/6/2024 by Hon.Wilbard G.M, Arbitrator, in labour dispute No. CMA/DSM/ILA/302/2022 at Ilala) ANNA SHANALINGIGWA………………………………………………...APPLICANT

VERSUS PRIVATE AGRICULTURAL SECTOR SUPPORT TRUST..………....RESPONDENT

RULING Date of last Order: 31/10/2024. Date of Ruling: 4/11/2024. B. E. K. Mganga, J. Anna Shanalingigwa, the herein applicant filed this application seeking the court to revise and set aside an award issued on 24th June 2024 by Hon. Wilbard G.M, Arbitartor, in labour dispute No. CMA/DSM/ILA/302/2022 before the Commission for Mediation and Arbitration (CMA) at Ilala whereby the arbitrator dismissed the dispute on ground that termination was fair bot substantive and procedurally. Respondent filed both the notice of opposition and counter affidavit opposing this application. When the CMA record was brought before this court, I perused and found that after the prayer by the witness to tender as exhibits and comment by the other party, the arbitrator just put equal sign and 1 number exhibits P4, P5, P17, P19, P22 and P27. In the award, the arbitrator considered those exhibits. When the application was called on for hearing, I asked the parties to address the court whether, those exhibits were properly admitted and the effects thereof. Responding to the issues raised by the court, Ms. Samah Salah, learned advocate for the applicant submitted that, there was impropriety in the manner the said documents were recorded as exhibits because it is not clear whether they were admitted as exhibits or not. Counsel further submitted that, the said documents cannot be used as exhibit hence it

was not right for the arbitrator to consider them as exhibits. She added that, both the parties and the court, cannot rely on those documents in this revision application and that, the same has caused miscarriage of justice to the parties. Counsel for the applicant submitted further that, the remedy available is for the court to nullify the CMA proceedings, quash the award and order trial de novo before another arbitrator. On the other hand, George Shayo, learned advocate for the respondent, fully concurred with submissions made on behalf of the applicant that, the manner the said documents were recorded is inappropriate. He further submitted that, such irregularity goes to the root of the application and right of the parties. He therefore joined hand 2 with counsel for the applicant praying the court to nullify CMA proceedings, quash and set aside the award arising therefrom and order trial de novo before a different arbitrator to ensure that administration of justice meets standards as provided by the law. It is undiputed by the parties that the aforementioned exhibits were not admitted in evidence. What is clear in CMA record is that, after the prayer by the witness to tender them as exhibits and comments by the other party, the arbitrator just put equal signs and mark the document. What disturbed my mind and minds of both counsel is that, while the arbitrator did so in

relation to the aforementioned exhibits, she did differently in relation to other exhibits. In fact, in relation to the rest exhibits apart from the aforementioned exhibits, after the prayer by the witness to tender exhibit and the comment by the other party, the arbitrator admitted the exhibit and so recorded. In other words, the arbitrator did not use equal signs as she did in relation to the aforementioned exhibits. Had the arbitrator used the equal sign in relation to all exhibits, I and learned counsels would have assumed that, the arbitrator admitted exhibits by only using equal signs. I have failed so to assume because of use of equal signs while the arbitrator expressly stated in relation to others exhibits that were admitted. I therefore agree with both counsel for the parties that recording of 3 exhibits was inappropriety leaving both the court and the parties with assumptions. But neither this court not the parties can rely on assumptions. I am alive to the provisions of section 8894)(a) and (b) of the Employment and Labour Relations Act[cap. 366 R.E. 2019] that the Arbitrator may conduct proceedings in a manner that considers appropriate in order to determine the dispute fairly and quickly and shall deal with substantial merit of the dispute with minimum legal formalities. It is my view that, the underlined catchwords in the said provisions are fairness and minimal

legal formalities. The provisions does not provided that arbitrators should dispense with legal formalities rather that, the said legal formalities must be minimal. It has been held several times by this Court and the Court of Appeal that exhibits must be admitted, and proceedings must show that, the exhibit was admitted. The exhibit itself must be marked as “exhibit”. The omission to show that an exhibit was admitted makes the exhibit to wrongly admitted into evidence and cannot be acted upon by the court. See the case of Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (25 June 2021), Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal 70 of 2018) [2021] TZCA 265 (25 June 2021), Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452 (20 July 2022) and Zanzibar 4 Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020). The procedure of admissions of exhibits is intended to ensure that there is fair hearing. It is my view that, proceedings cannot be fairly and quickly determined in view of the provisions of section 88(4)(a) of Cap. 366 R.E. 2019(supra) by creating rooms for assumptions as to whether the exhibit was admitted or not as it has happened in the application at hand. In addition to that, in my view, requirement of showing clearly as what was admitted

and what was not admitted is a minimal legal requirement that was not complied with the arbitrator. It was correctly submitted on behalf of the parties that the irregularity committed by the arbitrator has occasioned injustice to the parties because, from where I am standing, I cannot consider exhibits that were not shown that they were admitted. I therefore agree with both counsel and nullify CMA proceedings, quash the award and order trial de novo before a different arbitrator to ensure that administration of justice meets standards provided by the law. Dated at Dar es Salaam on this 4th November 2024 B. E. K. Mganga

JUDGE 5 Ruling delivered on this 4th November 2024 in Chambers in the presence of Fatuma Mgunya, Advocate for the Applicant but in the absence of the Respondent. B. E. K. Mganga

JUDGE 6