CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: MUGASHA. J.A.. MASHAKA. J.A. And NGWEMBE. J J U CIVIL APPEAL NO. 495 OF 2021 BALTON TANZANIA LIM IT ED ...........................................................APPELLANT VERSUS VEDASTUS MAPLANGA M A K E N E ..................................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, (Labour Division) at Dar es Salaam) (Rwizile. 3.) Dated the 22nd day of October, 2021 in Revision No. 571 of 2019 JUDGMENT OF THE COURT 11th & 17th February, 2025 MUGASHA, J.A.: The respondent herein VEDASTUS MAPLANGA MAKENE, was on 1/7/2015 employed by the appellant BALTON TANZANIA LTD on contractual terms for indefinite period until his termination on 14/11/2017. Aggrieved, the respondent successfully filed a complaint before the Commission for Mediation and Arbitration (the CMA) claiming to have been unfairly terminated. The reliefs sought were: one, compensation of 12 months' salary; two, a total sum of TZS. 102,367,653.00 being unpaid commissions; and three, severance pay. Having concluded that the termination of the respondent was unprocedural, the CMA awarded the respondent compensation of 12 months' salary; TZS. 16,080,497.00 being unpaid commissions and severance pay at a sum of TZS. 3,705,583.37. Unamused, the appellant filed an application for revision before the Labour Court seeking to have the CMA award reversed. The application for revision was eventually dismissed. Before the Labour Court, the CMA file could not be traced and at some point, although the respondent's counsel intimated to the Labour Court that the CMA file was lost and proposed an alternative option of reconstructing the lost file, this was not attended to by the Labour Court and presiding Aboud, J, merely noted what was submitted by the respective learned counsel without more. That apart, although at a later stage the revision application was fixed for hearing before Rwizile, J,. the issue of the missing CMA records did not feature as it was not further pursued by any of the learned advocates for the respective parties. Thus, besides scheduling the date of hearing, Rwizile, J ordered the calling of the CMA record. Until when the application was heard and judgment composed in respect of the Revision Application, there is no clue if such record was placed before the Labour Court. Yet, the learned Judge entered judgment in favour of the respondent. It is against the said backdrop; the appellant has preferred the present appeal fronting five grounds of appeal seeking to have the decision of the Labour Court annulled. However, on account of what is to unveil in due course save for the 2nd ground of appeal, we shall not reproduce the other four grounds of appeal. The 2nd ground of appeal is as hereunder: "That the trial court erred in law by deciding the case without having the handwritten and typed proceedings from the Commission for Mediation and Arbitration The present appeal, in particular the 2nd ground of appeal was confronted by a preliminary point of objection on ground that it is incompetent as it is based on points of facts and mixed law and facts respectively, which is against the dictates of section 57 (1) of the Labour Institutions Act which requires an appeal to the Court to be solely on a question of law. Given the nature of the matter, we opted to hear and dispose of together both the point of objection raised and the 2nd ground of appeal. In arguing the preliminary objection, it was submitted by the learned advocate Felix Edward Makene for the appellant that, the issue of the Labout Court not being seized with the CMA records is purely factual and it requires to be substantiated by tangible evidence. In this regard, he argued that without any such evidence, the ground of complaint is factual and an afterthought considering that it surfaced after the Labour Court handed down its judgment. With this submission, Mr. Makene urged us to strike out the appeal. On the other hand, learned advocate Benard Nkwabi for the appellant opposed the preliminary objection arguing the same to be misconceived because the complaint in the 2nd ground of appeal is on a question of law. He expounded that; since the revisional jurisdiction of the Labour Court on the CMA award entails examining the correctness, legality and propriety of what transpired before the CMA, the Labour Court was not capacitated to exercise its revisional jurisdiction without being seized with the record of the CMA which constitutes a question of law warranting the intervention and determination by the Court. To ■cement his argument, he cited to us the case of PANGAEA MINERALS LIMITED VS GWANDU MAJALI, Civil Appeal No. 504 of 2020 (unreported). He forcefully submitted that, the decision of the Labour Court should not be allowed to stand and so is the award of the CMA whose records cannot be traced to date. On the way forward, he implored on the Court to quash and set aside the judgment of the Labour Court, the CMA proceedings and award and proceed to order fresh arbitration of the respective labour dispute. At the outset, we wish to reiterate the obvious that, in terms of section 57 (1) of the Labour Institutions Act, the Court is vested with jurisdiction to determine only questions of law and not factual matters. What constitutes a question of law to be adjudicated by the Court sitting in its appellate jurisdiction was considered by the Court in the cases of ATLAS COPCO TANZANIA LIMITED VS COMMISSIONER GENERAL TRA, Civil Appeal No. 167 of 2019 and KILOMBERO SUGAR COMPANY LIMITED VS COMMISSIONER GENERAL, Civil Appeal No. 14 of 2007 (unreported). The Court defined what constitutes a question of law in the following terms: "... Thus, for the purpose o f section 25 (2) o f the TRAA, we think, a question o f law means any o f the foiiowing: first, an issue on the interpretation o f a provision o f the Constitution, a statute, subsidiary legislation or any legal doctrine on tax revenue administration. Secondly, a question on the application by the Tribunal o f a provision o f the Constitution, a statute, subsidiary legislation or any legal doctrine to the evidence on record. Finally, a question on a conclusion arrived at by the Tribunal where there is failure to evaluate the evidence or if there is no evidence to support it or that it is so perverse or so illegal that no reasonable tribunal would arrive at it". The above position is applicable with equal force in the case at hand because section 57 (1) of the Labour Institutions Act, mandates the Court to entertain and determine solely questions of law. Regarding the mandate of Labour Court, we are aware that, in terms of section 94 (1) (b) of the Employment and Labour Relations Act [CAP 366 R.E. 2019] (the ELRA), the Labour Court is clothed with among others, jurisdiction to revise the decisions of employment disputes originating from the CMA. Revision entails examining the record of the lower court or tribunal in order to establish the correctness, propriety and legality of the proceedings which are a subject of the award. Furthermore, in the exercise of revisional jurisdiction, the Labour Court may reverse or sustain the decision of the CMA. In the premises, the gist of the complaint raised by the appellant is the propriety or otherwise on the part of the Labour Court determining the revision application without being seized with the entire record of what transpired before the CMA which is inclusive of the documentary and oral account of the employer's case and that of the employee. This in our considered view, constitutes a question of law as prescribed under section 57 (1) of the Labour Institutions Act. We thus find the preliminary objection misconceived and it is hereby dismissed. This takes us to the substantive ground of complaint which calls us to determine the propriety or otherwise of the decision of the Labour Court on the revision application determined in the absence of the CMA records and to be precise, the arbitration proceedings. We begin with what transpired before the Labour Court. It is glaring at page 403 of the record of appeal that, the Labour Court was called upon to revise and set aside the award of the CMA which also features in the affidavit accompanying the revision application at page 409 of the record of appeal faulting the arbitrator on among others the following: one, the award is illogical as the arbitrator had failed to analyse the evidence and the issues framed and two; the arbitrator wrongly held that the termination was procedurally and substantively unfair. The reliefs sought by the appellant as reflected at page 409 of the record of appeal included: one, that the labour Court be pleased to call for the record of proceedings; and two, the award of the CMA and proceed to quash the same. Given the nature of grounds and reliefs sought by the appellant in the revision application, a burning question is, how could the Labour Court ascertain if the arbitrator had failed to analyse the evidence without being seized with the record of the CMA? In other words, was there any material before the Labour Court necessitating examination for it to determine the correctness, propriety or legality of what transpired before the CMA? Apparently, in their submissions to the Court, the learned counsel for the parties confirmed that the CMA record could not be traced. However, they parted ways on the way forward. Whereas the appellant's counsel was apprehensive that a retrial would prejudice the interests of the respondent, he invited the Court to rely on the contents of the award in order to discern what had transpired during arbitration. This really taxed our mind because, as earlier stated, the complaint raised by the respondent's counsel is not compatible with what transpired before the Labour Court on 16/3/2021 which is evident at page 449 of the record of appeal when he first raised alarm on the missing CMA proceedings. That apart, we think, the proposal on the reconstruction of the record raised by Mr. Makene was not given a deserving attention by the Labour Court which initially, besides noting what was submitted by Mr. Makene went ahead to hear and determine the revision application without being seized with the record of the CMA. On the other hand, we think, it was incumbent on the part of the respective learned counsel as officers of the court to remind the Labour Court on the missing CMA proceedings and a subject of the revision application before the Labour Court for it to take prompt action. On account of what we have demonstrated, at this juncture, we agree with the appellant's counsel that the Labour Court was not capacitated to invoke its revisional jurisdiction prescribed under section 91 (1) (b) of the ELRA. Having gathered that he was not seized with the CMA records, it was incumbent on the learned Judge initially, to invite parties in order to explore viability of options to reconstruct the record as we earlier held in the case of MADOLOLYO VS REPUBLIC, Criminal Appeal No. 486 of 2015 (unreported). Thus, we decline the suggestion by Mr. Makene who invited us to rely on the CMA award as to what evidence was adduced before the CMA. We are fortified in that regard, having carefully considered that what had transpired before the CMA can only be found in the arbitration proceedings which cannot be substituted with what is reflected in the CMA award. This stance was emphasized in the case of I TECH TANZANIA VS MONICA HOSEA MACHA, Civil Appeal No. 227 of 2020 (unreported). The Court was confronted with a scenario whereby the Labour Court which was not seized with the record of the CMA, declined to invoke its revisional jurisdiction and instead ordered retrial of the arbitration. The Court said: "We are satisfied that the learned Judge o f the High Court followed a correct path to order a retrial because without the arbitration proceedings in question, there was nothing to be examined so as to determine the propriety, legality and regularity o f the award vis a vis the complaint was illegally procured and not backed by the evidence contained in the CMA proceedings". The above stance is applicable in the present matter and it was a proper course to be followed by the Labour Court which is not the case. Thus, although the initial remedy of the lost record is to reconstruct the same which is a task to be co-shared by the parties and the court or tribunal, every case should be invariably be determined on the basis of its peculiar circumstances and what is paramount is to consider whether a retrial will better serve the interests of justice. See: MARUNA PAPAI VS REPUBLIC, Criminal Appeal No. 104 of 2011 and WAMBURA KIGINGA VS REPUBLIC, Criminal Appeal No. 301 of 2013 (both unreported). In view of what we have demonstrated above, it is settled that, the learned High Court Judge wrongly invoked revisional jurisdiction to revise the CMA award without being seized with the record of the CMA. Thus, in the wake of the missing CMA proceedings as acknowledged by the respective learned counsel, the impugned award and the fate of the empioyment dispute which is yet to be finally determined, a retrial is worthy as it will serve the better interests of justice. Consequently, we quash and set aside the judgement of the Labour Court, the CMA proceedings and award and order a retrial of the labour dispute. DATED at DAR ES SALAAM this 14th day of February, 2025. S. E. A. MUGASHA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. 3. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 17th day of February, 2025 in the presence of the Mr. Benard Nkwabi, learned counsel for the Appellant also holding brief for Mr. Felix Edward Makene, learned counsel for the Respondent, is hereby certified as a true copy of the original.