Benedicto Inega

The Judiciary of Tanzania

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SHINYANGA SUB – REGISTRY AT SHINYANGA LABOUR REVISION NO. 202406041000013058 (Originating from the CMA’s Award at Shinyanga in CMA/SHY/92/2024) BENEDICTO INENGA ……………................................................... APPLICANT Versus CRDB BANK PLC. …………………………………........................... RESPONDENT

JUDGMENT F.H. Mahimbali, J 29th July & 26th August 2024 The brief facts of this revision application is this. The applicant had been the respondent’s employee at the capacity of driver – cum messenger. His first employment was dated 1st August 2011 as driver. Later, on 1st October 2015, he was employed as driver – cum messenger by the same employer – respondent and at the same office. He was eventually terminated his employment on 12th may 2017. He unsuccessfully challenged the lawfulness of the said termination before CMA – Shinyanga as per CMA’s ruling dated 20th June 2017 1 (Nnembuka – mediator). All this is as per the applicant’s affidavit (para 4 - 16). From unknown facts, the applicant in November 2023 filed an application for condonation before the Commission for Mediation and Arbitration at Shinyanga (CMA/SHY/92/2023) against the said ruling on four grounds, namely: a. That it was material illegality for Hon. Nnembuka (Mediator) to deny the respondent an opportunity to be heard as the Respondent would have assisted the settlement and resolution of his dispute. b. That it was material illegality for Hon. Nnembuka (Mediator) to give parties an opportunity to apply for revision before the High Court of Tanzania while knowing that the merit of the case was not determined by the Commission. c. That Hon. Nnembuka (Mediator) misdirected himself in law and fact for his failure

to record proper names of parties. In a CMA summons dated 15/05/2017 he recorded the Respondent as Director CRDB while in his ruling he recorded the respondent as MKURUGENZI MTENDAJI CRDB BANKI. 2 d. That the Respondent had never issued an official notice to terminate his contract of employment dated 1st October 2015 in which he had a position of driver Cum Messenger until 23rd September 2023. That the CMA in determining the application before it (Kiwara – Mediator), proceeded to dismiss the application on the ground that the Commission has no jurisdiction to entertain the application due to res judicata principle. The applicant is aggrieved by the said decision on three grounds: there was misconduct on the part of the Arbitrator, the award was improperly procured and that the award was unlawful, irrational or illogical. From the above facts, the applicant is arguing: Whether it was proper and fair for the Hon. Kiwara – Mediator to hold that the Commission has no jurisdiction to entertain the dispute; whether it was proper and fair for the Hon. Kiwara (Mediator) to hold that the dispute before her was Res-Judicata; whether it was fair and proper for the Hon. Kiwara (Mediator) to determine and decide the application for condonation. On these issues, the applicant is praying for the following reliefs: i. That the Honourable Court may be pleased to examine the proceedings, revise,

and set aside the Commission for 3 Mediation and Arbitration (CMA) award/ruling delivered on 24th may 2024 by Hon. Kiwara (Mediator) in the Labour Dispute No. CMA/SHY/92/2023 on the grounds set forth in the annexed affidavit. ii. That, the Honourable Court may be pleased to revise the ruling/award issued under those proceedings due to irregularities/improperly procured and grant condonation for the application. iii. That the Honourable Court may be pleased to grant any order that it considers just and convenient to grant. During the hearing of the application, Mr. Dotto – personal representative appeared for the applicant, whereas the respondent was represented by Ms. Marina Mashimba, learned advocate. On his part, Mr. Dotto for the applicant first prayed that the chamber application and affidavit be adopted by the court to form part of his submission. He then submitted that as per affidavit, they have three points/ grounds. However, he only argued one ground, as per paragraph 23(iii): Whether it was proper for Hon Kiwara to determine and decide the application for condonation. On this, it is his submission that the arbitrator 4 had no powers to determine the application for condonation. He argued so, basing on rule 3(1)&(2) of the Mediation and Arbitration Guidelines GN No. 67 of 2007, that the mediator at this stage was duty bound to lead parties to reach a reconciliation and

not make decision. Strange to this matter, the mediator determined the P.O that the matter was res judicata. As per page 13 of her ruling makes it clear that the suit is resjudicata. The main issue whether in deciding so, the mediator applied the law properly. He referred this Court to the case of Benjamin Lazaro Isseme Vs. Yapi Merkez Insaat Ve Sanayi Anonim Sirket, Revision Application No. 26 of 2013, HC Labour Dsm at page 7 (last paragraph) is elaborative on this. What she ought to have done as per rule 3(1)&(2) of the GN 67 of 2007, having failed to mediate the parties, had to refer it to the arbitrator for adjudication. He submitted further that in another case of Barclays Bank (T) Limited v Ayyam Matesa, Civil Appeal No. 481 of 2020, CAT at Dsm at page 8 is very clear that a mediator's powers are limited and does not extend to dismiss the matter or decide it as done in this matter. What the mediator did was beyond the scope as provided by law - GN 67 of 2007 read together with section 86(4)(7)(8) of the ELRA. She therefore could not dismiss the matter. 5 As to what is the legal remedy for that, he was of the firm legal view that, the said ruling be quashed and set aside and in lieu thereof, the matter be ordered that the condonation application be granted. He further persuaded this Court to be guided by the decision in the case of Benjamin Lazaro Isseme Vs. Yapi Merkez

Insaat Ve Sanayi Anonim Sirket, the application and its judgment was nullified for illegality. Under rule 56(1) of the Labour Court Rules, GN 106 of 2007, this Court is so powerful to make that order, concluded Mr. Dotto. On her part, Ms Marina Mashimba learned advocate in opposing the application, submitted that, the notice of opposition together with the counter affidavit dully deposed by Mr. NKUBA - principal officer, prayed that this court to adopt them. She then submitted that as per para 20(iii) of the respondent's counter affidavit, it was fair and proper for the mediator to determine and decide the application for condonation. As per rule 3(1) &(2) of GN 67 of 2007, had not listed the powers of mediator but outlined the Mediation process . Thus, there is nothing violated as submitted, argued Ms Mashimba. As per referred case of Benjamin Lazaro Isseme that mediator has no power to grant condonation, is not true as per submission. She 6 conversely argued that, in the case of Rui Wang Vs. Emminence Consulting Tz Limited, Labour Revision No. 306 of 2022, HC Labour Division at Dsm at page 15 (second paragraph), whether mediator can grant condonation, under rule 15 of GN 67 of 2007, during mediation proceedings, Mlyambina J, ruled that the mediator is empowered to determine jurisdictional issues. He paused a question, whether time limitation falls within jurisdictional

issues. In responding to this, at page 16 rules that time jurisdiction falls within jurisdictional issues while making reference to the case Tanzania Fish processors Ltd Vs. Christopher Luhanga, Civil Appeal No. 161 of 1994: a dispute cannot be meditated if mediator has no jurisdiction to do so. If the matter was filed out of time, the issue of condonation had to be determined before mediating the parties. At page17 (third paragraph), Mlyambina J, was of the view that the mediator had powers to determine the application for condonation. Thus, by this legal stand, the mediator was justified to determine the condonation application first. 7 That the mediator's powers were limited to mediation only, that application ought to have been referred to the arbitrator is not legally founded. The mediator coat unless there was condonation. With the cited case of Barclays Bank(T) Limited (supra) at page 8, that the CAT ruled that the mediator had no powers to decide but only mediate, I dispute I think the two cases are distinguishable. In Barclays case, the issue of dispute was on merit, while in the current case the facts are differentiated as the application for condonation does not decide the case. This personal observation of Ms Mashimba, is cherished by the decision of Hon. Mlyambina, J in Rui Wang Vs. Emminence Consulting Tz Limited (supra). Having said all this, it is the humble

submission of Ms Mashimba that this Revision application is unmerited, and ought to be dismissed. With the prayers sought by the applicant, this Court shouldn't entertain such a prayer which is an erroneous. Thus even if ruled that the Mediator had no such powers of determining the application so, its remedy is not as wished by the applicant but to nullify the proceedings, quash the decision and direct that matter be heard afresh. 8 She added, the argument that this Court can do that pursuant to rule 56 of the Labour Court Rules, GN 106 of 2007, is opposed as the HC can only do that for application of condonation before this Court and not one before CMA. Thus, for this submission, the applicant's application be dismissed for want of merit. In his rejoinder submission, Mr. Dotto reiterated rule 3(1)&(2) of the GN 67 of 2007 is very clear on the powers of the mediators and not process of mediation. On the powers of mediators, he nodded that there are conflicting decisions of this Court. Nevertheless, the decision of Mganga and that of Court of Appeal are more elaborative. That means, the CAT had finally determined that matter. Thus, there is nothing undetermined. At page 9 the CAT is making a very good point. With time barred issue, he also reiterated his submission in chief adding that in the case of Barclays Bank, though facts are different, but the CAT said it all. On prayers

sought, he submitted that this Court upon good has all those powers where material irregularity is one of the grounds, in which this Court can grant the extension of time. 9 Having heard the rival submissions, I shall address hereunder the said issue. To start with, it is important to make a brief account of the procedure governing labour dispute resolution by the CMA. As well summarized in the case of Barclays Bank (T) Limited v Ayyam Matesa (supra) that reading the Employment and the Labour Institution Act, the CMA is vested with jurisdiction to resolve disputes by way of mediation and arbitration through the mediators and arbitrators who are generally appointed by the CMA under section 19 of the Labour Institutions Act CAP 300 R.E.2019 ("the LIA"). To deal with a dispute, the respective officers must have been specifically appointed thereof in terms of section 86 (3) (a) of ELRA for a mediator and section 88 (2) (a) thereof for an arbitrator. Before a referral goes for arbitration, it must first undergo compulsory mediation. Where the dispute is, like in the instant case, of right, the mediation process has to be completed within 30 days from the date of referral or any longer period as the parties may mutually agree. Where the mediation fails because of the absence of either of the parties, section 87(3) of the ELRA, whose interpretation is the theme of this case, provides

for the consequences in the following words: 10 "(3) In respect of complaint referred under this Act, the mediator may- (a) dismiss the complaint if the party who referred the complaint fails to attend a mediation hearing. (b) decide the complaint if the other party to the complaint fails to attend a mediation hearing" For the applicant it is submitted that, since the power of mediators is naturally limited into assisting the parties to resolve the dispute amicably, the words to decide the complaint should not be construed literally as that would lead to absurdity. Truly, under the ELRA the jurisdiction of a mediator as the title dictates, is to mediate, the process which does not include to dismiss and to decide a complaint. That would no doubt be a general rule. Under exceptional circumstances as it is in the provision under discussion, the mediator is empowered to dismiss the complaint if the referring party fails to appear and decide the same if the party against whom the referral is made fails to appear. The jurisdiction to dismiss the complaint, it would appear, though cannot be said to be a direct result of the mediation 11 process, has not been doubted definitely because in the context of the provisions under discussion, it entails a summary order which is made without hearing. The debate here is on the jurisdiction to decide the complaint which in its natural meaning

would mean deciding the dispute on merit. It does not matter whether the decision is in the form a summary decision (decision on default) or a decision preceded by evidence taking as it was in the instant case. Thus, unless there being justification for the default, dismissal of a suit or decision of the merit of the same in his or her absence is a natural foreseeable consequence as correctly held by the Court in Barclays Bank (T) Limited v Ayyam Matesa (supra). The question in the second angle is whether under the provisions in question the mediator can arbitrate the dispute and if no, what can the mediator do so as to give the meaning of the said provision effect. The Court of Appeal in Barclays Bank (T) Limited v Ayyam Matesa (Supra) answered the main question negatively for a number of reasons. First, arbitration is a process which comes after the dispute has been referred to arbitration under section 86(2) of the ELRA and has to be conducted by an arbitrator specifically appointed for the 12 respective referral, save in combined mediation and arbitration procedure wherein by the consent of the parties, one officer can be appointed as both a mediator and arbitrator. Second, under the provisions of section 86 and 87 of the ELRA, the role of a mediator is, as rightly submitted for the appellant, to assist the parties to reach amicable settlement of the dispute. In view of his

role, the mediator is in a position to receive factual information from the parties that would not ordinarily be made available in the arbitration phase. Besides, the mediation process may involve self-evaluation of weaknesses in the merits of the case which no doubt may be highly influential to a mediator who subsequently assume the role of an arbitrator. From the above provisions, it appears to be clear that, the jurisdiction to pronounce an award for unfair termination of service is exclusively conferred to the arbitrator and the Labour Court. Neither the CMA as an institution nor a mediator as a quasi-judicial officer is mentioned. I think, interpretation of the provision in question to mean that the mediator may arbitrate and award the reliefs created by the above provisions as he did, would amount to creating jurisdiction to the mediator which is implicitly excluded under the above provision. 13 Back to the CMA/SHY/92/2023, subject of this revision application. There is no dispute that the current application for condonation was heard and determined by the Mediator Margreth A.D. Kiwara. It is, in my view, as correctly submitted by Mr. Dotto that the Mediator had no power to hear and grant condonation. I have read the case of RUI WANG v. EMINENCE CONSULTING (T) LTD (Revision Application 306 of 2022) [2023] TZHCLD 1128 and the case of Benjamin Lazaro Isseme Vs. Yapi Merkez

Insaat Ve Sanayi Anonim Sirket (supra). In a full digest, I am in full agreement with my brother Mganga J in Benjamin Lazaro Isseme Vs. Yapi Merkez Insaat Ve Sanayi Anonim Sirket that the Mediator has no power to grant condonation because, in an application for condonation or extension of time, applicant must file condonation Form (CMA F2) together with an affidavit stating reasons for the delay in terms of Rule 29(1)(a) and (4)(d) of the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007. Upon filing the application for condonation, the party opposing the application, must file the Notice of Opposition and the Counter Affidavit as it is provided under Rule 29(5) of GN. No. 64 of 2007 (supra). Once that is done, then, the application has to be heard on merit. In the affidavit in 14 support of the application for condonation, applicant must account for the delay and must show good cause for the delay. See Benedict Mumello vs Bank of Tanzania (Civil Appeal 12 of 2002) [2006] TZCA 12, Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396, Patrick John Butabile vs Bakresa Food Products Ltd (Civil Appeal 61 of 2019) [2022] TZCA 224. In fact, Rule 11(3) of GN. No. 64 of 2007(supra) requires and applicant to state the degree of lateness, reason for delay, possibility of the dispute to succeed, any prejudice to the other party

and any other factor. In the above cited cases, the Court of Appeal pointed out clearly and in unambiguous term that, in an application for condonation, CMA or the court is called to exercise its discretion and that, that must be done judiciously. It is my view that, in an application for condonation, the CMA is called to exercise judicial discretion, which, in my view, is not the duty of the Mediator because the duty of the Mediator is to assist the parties to settle the dispute. The position that powers of the Mediator is to assist the parties to resolve the dispute is provided under section 86(4), (7) and (8) of the Employment and Labour Relations Act[ Cap. 366 R.E. 2019] and Rule 3(1) 15 and (2) of the Labour Institutions (Mediation and Arbitration Guideline) Rules, GN. No.67 of 2007. The said Rule 3(1) and (2) of GN. No. 67 of 2007 (supra) provides: - “3(1) Mediation is a process in which a person independent of the process parties (sic) is appointed as mediator and attempts to assist them to resolve a dispute and may meet with the parties either jointly or separately, and through discussion and facilitation, attempt to help the parties settle their dispute. (2) A mediator may make recommendations to the parties suggesting for settlement if, the parties to the dispute agree or the mediator believes it will promote settlement. Recommendations made are not binding on the

parties; it is only persuasive and aims to assist the parties to settle a dispute.” In my view, hearing the parties on submissions in an application for condonation and delivering a ruling granting or refusing to grant condonation, cannot be a process of assisting the parties to amicably settle the dispute envisaged under the provisions of Rule 3(1)and (2) of GN. No. 67 of 2007 (supra). I have read Part II of GN. 67 of 2007 (supra) that relates 16 to mediation process and the powers of the Mediator and find that, in the whole part, there is no rule giving powers to the Mediator to determine legal issues including but not limited to, an application for condonation. In my view, absence of such a rule, was intended to limit the powers and duties of the Mediator and confine the Mediator to the duties of assisting the parties to settle the dispute and not to determine legal issues that are the domain of the Arbitrator. In the case of Tanzania Cigarette Public Ltd Co. vs. Nancy Mathew Kombe (Rev. Appl 421 of 2022) [2023] TZHCLD 1138, this court held that, in an application for condonation, an applicant seeks CMA to extend a helping hand of jurisdiction otherwise, CMA will have no jurisdiction to determine the matter. The jurisdiction sought in an application for condonation is not based on territorial, which, in my view, is an exception jurisdictional issue that can be determined by

the Mediator under Rule 15 of the Labour Institutions (Mediation and Arbitrations) Rules, GN. No. 64 of 2007. I am of that opinion because, disputes must be filed in the territorial jurisdiction they arose. It is easy to decide territorial jurisdiction without being engaged in several legal issues unlike to the application for condonation. In my view, once the mediator finds that the dispute occurred within the jurisdiction, can proceed to mediate the parties. 17 As pointed hereinabove, in hearing the application for condonation, the Mediator, restores jurisdiction that was taken away by limitation of time. In my view, restoration of jurisdiction to CMA does not fall in the powers of the Mediator namely to assist the parties to settle the dispute. It was held in Kombe’s case (supra) that, mediation is rooted in confidence of the parties to the Mediator and that, the losing party in an application for condonation cannot, after the grant of condonation, have confidence in the Mediator. I am of that view because mediation is rooted in confidence of the parties to the Mediator, which is why, the Mediator is supposed to keep all information obtained during mediation process confidential as it is provided for under Rule 8(1), (2), (3) and (4) of GN. No. 67 of 2007 (supra). The said Rule 8 of GN. No. 67 of 2007 provides: - “8(1) Without prejudice mediation is a confidential process

aimed helping the parties to a dispute to reach an agreement. (2) Information disclosed during mediation may not be used as evidence in any other proceedings unless the party disclosing that information states otherwise. 18 (3) The mediator may not be compelled to be a witness in any other proceedings in respect of what happened during the mediation(sic). (4) The confidential nature of mediation proceedings prevents the Mediator, the parties and their representatives from disclosing any information obtained during mediation to any third party.” In Kombe’s case (supra), this court held that grant or refusal of application for condonation is adjudicatory or arbitration process and not mediation process. I hold that position because, the order of the Mediator granting condonation is not in line with the provisions of section 87(3)(a) and (b) of Cap. 366 R.E. 2019(Supra) or Rule 14(2)(a)(i) and (ii) of GN. No. 67 of 2007(supra) that are exceptional powers of the Mediator or section 20 of the Labour Institutions Act [Cap. 300 R.E. 2019]. In short, the Mediator had no power to either grant condonation or to dismiss the application for condonation. I have read the provisions relating to mediation in Cap. 366 R.E. 2019(supra), GN. No. 64 of 2007 (supra) and GN. No. 67 of 2007(supra) and 19 I am of the opinion that, it was not the intention of the drafters of the law that Mediators

should have adjudicatory powers including but not limited to grant application for condonation. I am of that view, considering mediation as a process and the role of the Mediator in that process. I have therefore given the ordinary meaning of words “mediation” and “Mediator” and I am of the view that, the mediator has no power to grant condonation. In fact, the court in south Africa in case of Minister of Police and Others v Fidelity Security Services (Pty) Limited [2022] ZACC 16; 2022 (2) SACR 519 (CC) held:- “Words in a statute must be given their ordinary grammatical meaning unless to do so would result in an absurdity. This general principle is subject to three interrelated riders: a statute must be interpreted purposively; the relevant provision must be properly contextualized; and the statute must be construed consistently with the Constitution.” In our jurisdiction, the Court of Appeal has reminded us in the case of Trade Union Congress of Tanzania (TUKTA) vs Engineering Systems Consultants Ltd & Others (Civil Appeal 51 of 2016) [2020] TZCA 251 when it held that:- 20 "The provision of one section of a statute cannot be used to defeat those of another 'unless it is impossible to effect reconciliation between them' The same rule applies to sub - sections of section" Again, in the case of Standard Chartered Bank(Hong Kong) Ltd vs Mechamar Corporation (Malaysia) Berhad and

Seven Others (Civil Revision 1 of 2012) [2012] TZCA 246 the Court of Appeal put it clear that:- " When the Courts are called upon to interpret a statute, their task is to discover the intention of Parliament. When the words used in a statute are clear and unambiguous, no further step is needed to identify the intention of Parliament. There is no need for further construction when Parliament has clearly expressed its intention in the words used in the statute...If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases...” 21 I have read the above cited laws and formed an opinion that applying the plain meaning of the words Mediation and Mediator and applying the purposive approach or intention of the drafters, Mediator has no power to grant condition. It is my view that, with those principles of statute interpretation in mind, the Court of Appeal in the case of Barclays Bank T. Limited vs AYYAM Matessa, Civil Appeal No. 481 of 2020 [2022] TZCA 189 held that the powers of the Mediator are limited. In Matessa’s case (supra) the Court of Appeal held inter-alia

that:- “...Truly, under the ELRA the jurisdiction of a mediator as the title dictates, is to mediate, the process which does not include to dismiss and to decide a complaint. That would no doubt be a general rule. Under exceptional circumstances as it is in the provision under discussion, the mediator is empowered to dismiss the complaint if the referring party fails to appear and decide the same if the party against whom the referral is made fails to appear.” (Emphasis supplied) 22 For all said hereinabove, I hold as it was held in the case of Benjamin Lazaro Isseme Vs. Yapi Merkez Insaat Ve Sanayi Anonim Sirket, Ndovu Resources Limited vs Thierry Murcia, Rev. Appl. No. 371 of 2022 , Kombe’s case (supra), Nelson Mwaikaja vs Gemshad Ismail & Usangu General Traders (Rev. Appl 382 of 2022) [0023] TZHCLD 1 and Gin Investment Ltd’s case (supra) that the Mediator has no power to grant an application for condonation. I therefore, nullify CMA proceedings quashed and set aside the award arising therefrom. CMA record is hereby remitted to CMA so that the application for condonation can be heard by the arbitrator, if granted, then, the dispute be heard de novo by the competent arbitrator without delay. This being a labour case, I make no order as to costs. DATED at SHINYANGA this 26th day of August, 2024. F.H. Mahimbali Judge. 23