REV NO 17880 OF 2024 CARBON PLANET LIMITED VRS TANZANIA PLANTATION AND AGRICULTURAL WORKERS UNION

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVISION NO. 17880 OF 2024 CASE REFERENCE NO. 202407241000017880 BETWEEN CARBON PLANET LIMITED.............. ............................ .......... APPLICANT VERSUS TANZANIA PLANTATION AND AGRICULTURAL WORKERS UNION (TIPAWU)............................................ RESPONDENT JUDGEMENT Date of last Order: 12/ 09/2024 Date of Judgement: 03/ 10/2024 MLYAMBINA. J. The dispute at hand emanates from the following background; the Respondent is a trade union which has been registered under the laws of United Republic of Tanzania and dully authorised to promote a productive agricultural sector with a work environment that focuses on the rights, services and best interests of workers. That, on 24/02/2023 the Respondent opened the labour dispute against the Applicant urging the Commission for Mediation and Arbitration (herein CMA) to order the Applicant herein to allow the Respondent to exercise the organizational rights. The Applicant raised a preliminary objection against such application that the CMA had no territorial jurisdiction to entertain the said dispute since the dispute arose in Kibiti at Pwani Region while the same was filed before CMA Ilala. That, the CMA ruled in favour of the Respondent by stating that territorial jurisdiction does not cover organization rights but it covers only the termination of employment, unfair termination and other related matters. Thus, the objection was dismissed. Aggrieved by the CMA's decision, the Applicant filed the present application requiring determination of the following issues: i. Whether the CMA Ilala at Dar es Salaam had territorialjurisdiction to mediate the Labour dispute no. CMA/DSM/ILA/237/2023 whose cause o f action arose in Kibiti at Pwani Region. ii. Whether the Mediator was legally right to interpret the Provision o f law. The application was argued by way of written submissions. Before the Court, the Applicant was represented by Counsel Franklin Yuredi Chonjo and Kitua Kinja appeared for the Respondent. I have dully considered the rival submissions of the parties which will be taken on board in due course of constructing this decision. Before the CMA, after the Arbitrator considered the rival submissions of the parties regarding the objection in question, he made the following finding: Firstly, the Commission find that the nature of dispute is organization rights and not termination of employment where cause of action and place where the cause of action arose determined the place of suing or filing a dispute related to territorial jurisdiction of the law. Remember, the nature of dispute is the one of the fundamental factor applying for determining the kind/nature of relationship that existed between the Complainant and Respondents in any labour dispute. As it is clearly noted in both submissions, there is no any employment relationship between the Complainant and Respondents rather, there was employer and trade unions relationship only. And if that is the case, the arose preliminary objection is lacks legal merits on the eyes of the laws. From the above findings, the Arbitrator overruled the objection in record because the parties herein have no employer/employee relationship. He was of the view that existence of the employment relationship is one of the determinant factors to be considered in ascertaining where the cause of action arose. The Black's Law Dictionary 8th Edition, Bryan A. Garner, 2007, defines the term cause of action to mean: A group of operative facts given rise to one or more bases for suing a factual situation that entitles one person to obtain a remedy in Court from another person... The definition of cause of action (supra) is general. It occurs not only in labour matters but any fact giving rise to the basis of suing. Thus, even in labour matters the cause of action is not limited to unfair termination disputes. The dispute may be on contravention of the law, tortious liability and vicarious liability or any other labour related disputes as stated under Section 88 o f the Employment and Labour Relations Act [Cap 366 RE 2019] (herein ELRA). As stated herein, the dispute at hand was about exercising of the organizational right. Hence, the cause of action arose when the Applicant prevented the Respondents from exercising their organizational rights as conferred by the law. I therefore find the Arbitrator's findings as quoted herein above, is misconceived. The Arbitrator ought to have determined the objection tabled before him by assessing where did the cause of action arose in this particular dispute and if the CMA Ilala had territorial jurisdiction to determine the same. Since the issue of jurisdiction can be raised at any stage of the case, this Court herein proceeds to determine the objection in question. It was Counsel Yuredi's submission that the Respondent in his CMA Form No. 1 asked the CMA to order the Applicant to allow the Respondent to enter the Employer's Premises in order to Recruit Members and establish a Filed Branch in the Applicant's Company Located at Ngulakula Kibiti. It was his strong argument that as per Rule 22(1) o f The Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f 2007 (herein GN. 64/2007), the dispute must be mediated where the cause of action arose. In support of his submission, Counsel Franklin cited the case of Tanzania International Container Terminal Services Limited v. Ernest Kalage, Revision No. 634 of 2019, High Court Labour Division at Dar es Salaam. In reply, it was Counsel Kinja's submission that the CMA Ilala had jurisdiction to entertain the dispute. That the Respondent lodged TFU 14 at Head Office of the Applicant and was received, stamped and signed on 02/03/2023. However, the Applicant denied the Respondent to access, organize and recruit new members at his work place. He therefore urged the Court to dismiss the application. I have dully considered the rival submissions of the parties. Rule 22(1) o f GN. No. 64/2007provides that: Dispute shall be mediated or arbitrated by the Commission at its office having responsibility for the area in which the cause of action arose, unless the Commission directs otherwise In the application at hand, it is the Respondent's strong submission that the dispute arose at the Applicant's Head Office, Ilala where they filed TFU. 14, As analysed above, the cause of action in this case is the denial of the Respondent's access to organize and recruit new members at the Applicant's work place. Fortunately, the TFU 14 is also attached to this application. In the relevant form, the Respondent wrote the employer's address as Kibiti, Coastal Region. The workplace details are indicated as Carbon Planet Ltd Located at Ngulakula, Kibiti at Coastal Region. Under the circumstances, it is my view that since the cause of action arose at Kibiti, Coastal Region, the same ought to have been filed at Kibiti as per Rule 22(1) (supra). This Court was of the same position in the case of Ladislaus Kalushekya v. China Geo Engineering Cooperation, Labour Revision No. 135/2017, where it was held that the CMA lacked jurisdiction to entertain matters originating from a different region. The Respondent was of the argument that the filed TFU 14 at the Applicant's head office Ilala is of no basis. However, it is my view that the form was filed thereto for administrative purposes which does not change the position of where the cause of action arose. In the result, I find the present application has merit. The CMA's decision is hereby quashed and set aside. The CMA had no territorial jurisdiction to entertain the application. It is so ordered. JUDGE 03/10/2024 Judgement pronounced and dated 3rd October, 2024 in the absence of the Applicant and in the presence of Counsel Kitua Kinja for the Respondent. Right of Appeal explained. Y. J. MLYAMBJNA JUDGE 03/10/2024