beach residence ltd ta ramada resort dar es salaam vs suleiman mathew misalaba 2021 tzhcld 199 11 june 2021

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 07 OF 2019 BETWEEN BEACH RESIDENCE LTD T/A RAMADA RESORT DAR ES SALAAM................................................ APPLICANT AND SULEIMAN MATHEW MISALABA.................................................... RESPONDENT JUDGMENT — Date of Last Order: 18/05/2021 Date of Judgment: 011/06/2021 A. E. MWIPOPO, J. Beach Residence Ltd t/a Ramada Resort Dar Es Salaam Ltd, the Applicant herein, has filed this revision application against the Commission for Mediation and Arbitration (CMA) award in Labour Dispute No. CMA/DSM/KIN/R.356/17/454. The Applicant is praying for the order of the Court in the following terms:- 1. That this Hon. Court be pleased to revise and set aside the award of the Commission for Mediation and Arbitration dated 23rd November, 2018 on the reasons that the said award was grounded on material irregularity and errors of law. 2. Cost of this revision to follow the event. 3. Any other order(s) deemed fit under the circumstances. i The Application is supported by the affidavit of Marco Naiman, Principal Officer of the Applicant. The affidavit contains four statement of legal issues arising from material facts. The issues are as follows:- i. That the learned Arbitrator erred in fact and law by failing to take into cognizance the Respondent's testimony on the existence of multiple contracts of services with the Applicant. ii. That the learned Arbitrator erred in law and fact by aiding the Respondent by drawing an issue which was not raised by parties. iii. That the learned Arbitrator erred in fact and law by failing to deliberate on the question as to whether the alleged contract of service was a consequence of connivance or breach of duty by the Applicant. iv. That the learned Arbitrator erred in fact and law for holding that the Respondent was entitled to payment of compensation without considering evidence and tendered exhibit that the Respondent claimed to have entered into multiple contracts of services which were not authenticated but rather imputed upon by Arbitrator. The Applicant in this application was represented by Mr. Amin Mziray, Advocate. The Applicant effort to serve the Respondent proved to be futile 2 and on 8th October, 2020 he prayed for the service to be effected by substituted service which was granted by the Court. The summons was published in Mwananchi Newspaper dated 7th November, 2020. When the matter came for mention on 10th December, 2020 the Respondent did not appear and the Court ordered for the hearing to proceed in exparte. The Applicant Counsel submitted in support of the application that the Respondent entered a fixed term contract for the period of two years. The contrary was duly executed on 22nd March, 2015. Contrary to the expectations, the Respondent filed dispute before the Commission on 22nd February, 2017 despite knowing that the contract was for fixed term contract. During hearing before the Commission, the Respondent testified that there are other two contracts between them. The 2016 contract was confirmed by the employer and his salary was increased to shillings 500,000/= per month. This shows that there is confusion between the first fixed contract and the other two contracts which were still under performance. As result, the Arbitrator instead of making a finding which contract was in performance he went ahead and made a finding that the Applicant was not supposed to employ the Respondent for a fixed term contract rather the Respondent was supposed to be employed for unspecified time contract. This caused the Arbitrator to reach a wrong findings for failure to analyze the said contracts. 3 The Counsel prayed for the Court to set aside CMA award for the reason that it was granted on material irregularity. From the submission, the Applicant have submitted that the Arbitrator erred not to analyze the Respondent testimony which shows that there are three contracts of employment which the Respondent entered and two of them were still under performance. Instead of analyzing these contracts, the Arbitrator made findings that the Applicant was supposed to enter into unspecified time contract with the Respondent, the issue which was not raised by parties. I have read the Commission record and the award. The first issue before the commission was whether the Respondent was employed under fixed term contract or permanent contract. The Arbitrator analyzed the evidence adduced by both parties and made a findings that the evidence available especially the fixed term contract which was tendered as exhibit by both parties proved that the Respondent entered into a fixed contract of employment for a period of two years. However, the Arbitrator raised suo motto the issue as to whether the Applicant was supposed to employ the Respondent who is not employee of professional and managerial cadre and proceeded to determine it. The respective issue was not among the issue framed by the Commission after opening statement of the parties and the parties did not get the chance to adduce their evidence in support or against it. The Commission raised the 4 issue suo motto while composing the award without affording the parties right to address the Commission. In the case of Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016, Court of Appeal of Tanzania at Mwanza, (Unreported), the Court cited with approval its decision in the case of EX- B.8356 S/SGT Sylvester S. Nyanda Vs The Inspector General Of Police & The Attorney General, Civil Appeal No. 64 of 2014 (unreported), where the Court held that:- "There is similarly no controversy that the trial judge did not decide the case on the issues which were framed, but her decision was anchored on an issue she framed suo moto which related to the jurisdiction of the court. On this again, we wish to say that it is an elementary and fundamental principle of determination of disputes between the parties that courts of law must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying of the parties the right to fair hearing." In this application, the Arbitrator decided the dispute on issue not raised by the parties as results the parties were not afforded right to address and adduce evidence on the issue. In Safi Medics v Rose Peter, Mganga Mussa and Richard Karata, Revision No 82 of 2010, High Court of Tanzania Labour Division, at Tanga, (Unreported), the Court held that:- "4 successful arbitration requires that both the arbitrator and the parties in the dispute have a common understanding of the issues in controversy". Therefore, I find that the Commission arbitral award was improperly procured by the Commission. As result, I find that the revision application 5 has merits and is allowed. The Commission proceedings is quashed and its award is set aside. The Applicant is granted leave to file a fresh dispute before the Commission within 90 days from the date of this judgment if he is still interested to pursue the matter. No order as to the cost of suit. JUDGE 11/06/2021 6