LABOUR REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA SUB-REGISTRY) LABOUR DIVISION AT ARUSHA LABOUR REVISION NO. 41 OF 2023 (Original Labour Dispute No. CMA/ARS/282/22/155/22) ATHUMANI SALIMU................................................ APPLICANT VERSUS BANSAL STEEL ROLING MILL LTD........................... RESPONDENT JUDGMENT 20/05 & 24/06/2024 KIWONDE, J.: The applicant, Athumani Salimu, dissatisfied with the decision and award of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/ARS/282/22/155/22, filed this application by way of chamber summons supported by an affidavit praying for the court orders namely: 1. That this honourable court be pleased to call for the records and proceedings to satisfy itself as to the correctness, legality of the order, revise and set aside the arbitrator's award dated 13th June 2023. i 2. That any other relief or order the court may be pleased to make for the interest of justice. The respondent filed notice of opposition and counter affidavit refuting some facts deponed by the applicant and the matter became ripe for hearing. During hearing of the application, the applicant was represented by Mr. Herode Bilyamtwe, learned counsel, while the respondent had legal services of Ms. Ikoda Kazzy, advocate assisted by Kimaro, learned counsel. In his submissions in-chief, the counsel for the applicant said the proceedings of the CMA are tainted with irregularities and or anomalies. For instance, the proceedings of 26/01/2023, important matters were not recorded. According to him, lack of such records is fatal. Also, the counsel said the arbitrator failed to append signature after the witnesses took oath or affirmation and after every testimony or evidence of each witness. He argued that signing of the evidence ensures integrity of the evidence. He cited for reference the case of Joseph Elisha Versus Tanzania Postal Bank, Civil Appeal No. 157 of 2019, Court of Appeal of Tanzania at Iringa (24th September 2021). 2 Besides that, the counsel argued that the award was given out of extraneous matters. The arbitrator declined to determine issues framed at the hearing, instead, answered his own issue on compensation for occupational injury the fact the parties were deprived of the right to be heard. The counsel said all issues framed must be resolved, citing the case of Serengeti Breweries Limited Versus Bahati Baltazar Malisa, Civil Appeal No. 356 of 2020, Court of Appeal of Tanzania at Moshi (14th December 2023). The counsel for the applicant asked the court to nullify the proceedings of the CMA and set aside the award and thereafter order trial de novo. In reply, Ms. Ikoda Kazzy, counsel for the respondent informed the court that some of the matters are not deponed in the applicant's affidavit, like arbitrator's failure to sign evidence of the witnesses and their oaths/affirmation and the lack of records of the proceedings dated 26/01/2023. In the alternative, the counsel argued that it was not stated if the applicant was prejudiced for such omissions since the contents of evidence is not at issue. The counsel referred to the case of Security Group (T) Ltd versus Steven Gerson Kizinga, Consolidated Appeal No. 386 of 2020 and No. 50 of 2021, [23rd February 2024) Court of 3 Appeal of Tanzania at Mbeya and asked the court to do away with technicalities but deal with substantive justice. Concerning the framed issues, the advocate said the arbitrator gave reasons for not determining the issues. Thus, they were discussed and determined. The burden of proof of the breach of contract of employment lied on the applicant who failed to do so. She cited the case of Agatha Mshote versus Edson Emmanuel and 10 others, Civil Appeal No. 121/ 2019, Court Appeal of Tanzania at Dar- es salaam. Instead, the applicant adduced evidence on compensation for the injury suffered in occupational accident. The counsel added that it is not shown if it occasioned miscarriage of justice. She opposed the prayer for the order of retrial. In his brief rejoinder submissions, the counsel for the applicant said the nature of dispute at the CMA was on breach of contract of employment and the evidence was led on it. He said there was no evidence based on occupational accident. From the oral submissions and the CMA records, the main issue for determination is whether the application for revision finds merit or otherwise. 4 To begin with the legal concern of Ms. Ikoda kazzy, counsel for the respondent, it is true that matters of facts not deponed in the affidavit cannot be considered by the court. This was a position in Elfazi Nyatega and 3 others versus Caspian Mining Ltd, Civil Application No.44/08 of 2017, Court of Appeal of Tanzania at Mwanza (9th October 2018). When I read the applicant's affidavit, there is no fact deponed like lack of records of the proceedings dated 26/01/2023. Thus, the argument advanced by the counsel for the applicant on the aspect are vague and should not be considered. Also, I concur with the counsel for the respondent that after all, it is not shown how such want of records of the proceedings of 26/01/2023 prejudiced the applicant because he was afforded right to be heard since the matter was heard on 15/05/2023. The alleged not recorded important matters were not stated. Therefore, this is ignored. However, the failure by the arbitrator to sign the testimony of witnesses was deponed under paragraph 16 of the applicant's affidavit. This is worthy consideration. The case law of Joseph Elisha above, the witnesses did not take oath or affirmation before testifying and the arbitrator did not sign the evidence after each witness gave it. The court held that there is no rule requiring the arbitrator to append signature at 5 every end of the testimony of the witness and finally, it borrowed principle from other laws and case laws. In the case at hand, the witnesses took oath and affirmation before giving evidence at the CMA and the arbitrator signed at the end of evidence of PW1, he omitted signing after re-examination of DW1. So, it cannot be certainly said that the evidence lacked authenticity for this minor omission. I agree with the counsel for the respondent that nowhere it is shown that this occasioned into miscarriage of justice since the contents of the evidence is not altered to remove authenticity. For that matter, this ground for revision lacks merits. However, as to the failure by the arbitrator to determine the two issues framed by the Commission with the assistance of the counsels, this was indeed an irregularity. In law, all issues framed must be resolved unless one of them disposes of the entire matter or controversy. The dispute before the Commission was on the breach of contract of employment. There were three (3) issues framed. The first issue was whether the respondent had a valid reason not to renew the applicant's contract and the second issue was whether the procedures were adhered to and the third was on the reliefs each party is entitled to. 6 In refusing to determine the first two issues, the arbitrator said they were inadvertently framed. That at the end he would be obliged to discuss on the relief of compensation for occupational injury sought by the applicant. In my view, these are three distinct issues. He had to decide each and every issue framed. Then in his conclusion on reliefs, he would resolve such specific issue in the way he did. It is true that the applicant testified on the compensation for occupational injury. He said he claimed for such remedy as he was not yet registered with the Workers' Compensation Fund (WCF) so, he claimed for it before the Commission. The arbitrator could be justified to refuse to grant this relief on compensation for occupational injury when determining this issue. From the records, it is apparent that the first two issues were not determined by the arbitrator for no justifiable cause. This renders the award a nullity. On the prayer of trial de novo, I find it not appropriate in the circumstance of the case. Retrial is ordered only if the interest of justice so requires. It will not be given if there is insufficient evidence because this will allow the applicant to fill up the gaps in his evidence. The proper order is re-composition of the award after determining the issue of 7 breach of contract and the procedures if they were observed. This has to be done according to the evidence on record and not otherwise. Consequently, the application finds merits to the extent stated above and it is hereby allowed. The award of the CMA dated 13th is set aside. The records are remitted back to the Commission for Mediation and Arbitration for giving a fresh award based on decision of all issues framed. This has to be done by a different arbitrator competent so to do. I give no order as to cost this being a labour matter. Dated at Arusha this 24th June 2024 24/06/2024 8