CENTIDOOR RULING signed

IN THE HIGH COURT OF TANZANIA DODOMA SUB – REGISTRY (LABOUR REVISION) AT DODOMA LABOUR REVISION APPLICATION NO. 3 OF 2023 (Originating from the CM A Aw ard in the dispute No. CM A/ SGD/ 8/ 2019 by Hon. A. M assay, the Arbitrator). CENTDOOR (TANZANIA) LIMITED …………………….………………. APPLICANT VERSUS JUMA ABDULRAHMAN…………………………………………………….. RESPONDENT RULING 8/10/2024 HASSAN, J: - This ruling stems from the application for revision made under Rule 24 (1), 24 (2) (a), (b), (c), (d), (e) and (f), (3) (a), (b), (c) and (d) and Rule 28 (1)(c), (d) and (e) of the Labour Court Rules, 2007 G.N. No. 106 of 2007; section 91 (1) (a), (2) (a), (b), (c) and (4) (a) and (b) and section 94 (1) (b) of the Employment and Labour Relations Act, No. 6 of 2004 as amended by the Written Law (Miscellaneous Amendments) No. 3, Act of 2010 and section 51 of the Labour Institutions Act, No. 7 of 2004. 1 In the chamber summons, the applicant prayed the court to reverse and set aside an award from the Commission for Mediation and Arbitration (CMA) in the Labour Dispute No. CMA/ SGD/8/2019/05/2019 dated 4th April, 2023 for reasons that, the award contains material irregularities, is unlawful, illogical and irrational inter alia. When the matter was called on for hearing on 18th March, 2024, at the outset, the court Suo motto noted an irregularity in the record of the Commission for Mediation and Arbitration (CMA), which may be material to the outcome of the commission’s verdict. The said irregularity is that the arbitrator who presided over the hearing had not appended his signature at the end of the testimony of the applicant herein. Following such observation, the court Suo motto invited the parties to address on the aptness or otherwise of the proceedings. Hearing conducted by way of written submissions. To their credit, parties have rigorously complied with the terms of preference set forth by the court. To kow-tow on the same, the applicant’s submission was filed by Mr. Salmini Suleiman Mwiry, learned counsel. Whereas, on the other hand, Ms. Amina Mohamed Mkungu, also learned counsel filed her submission on behalf on the respondent. 2 Basically, in his submission, learned counsel for the applicant initially flagged to the omission made by the Arbitrator for not appending signature in the testimony of the applicant herein. Whereas, for the respondent herein, the arbitrator has gladly appended his signature. Moving forward, Mr. Mwary submitted further that, even the contents of the respondent’s evidence have missed some of information, and worse enough, some facts have been misled. Therefore, he contended that the authenticity of the respondent’s evidence becomes questionable on its correctness. He further submitted that an action of the Arbitrator to append signature in the testimony of the respondent alone, and at the same time, to disregard the testimony of the applicant herein for appending signature, in his view, such omission has caused a fatal slip-up which goes into the root of the matter. Moreover, Mr. Mwary pointed out further that, in the records, part of the respondent’s evidence was tempered and misled to the extent that it raises a question of authenticity. He therefore, insisted that in order to guarantee authenticity of the records, law requires that witness testimony has to be signed by the trial 3 Arbitrator. Thus, to support his point, he made reference from the case of Attu J. Myna vs Cfao Motors Tanzania Limited (Civil Appeal 269 of 2021) [2022] TZCA 187 (5 April 2022) where the Court of Appeal once held: “We are aware that the Rules governing the proceedings at the CMA do not contain any provision regarding signing of the witness's testimony by the arbitrator. However, it is our view that the requirement is pertinent in order to safeguard the authenticity and correctness of the record.” More so, in the same case, the court went on to provide further with respect to this point, thus: “In this respect, we wish to take inspiration from the Civil Procedure Code [CAP 33 R.E. 019] whereby signing of witness's evidence is a mandatory requirement. Order XVIII rule 5 thereof provides thus: "The evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not ordinarily in the form of question and answer, but in 4 that of a narrative and the judge or magistrate shall sign the same." [Emphasis added] The applicant’s counsel submitted further that, in the instant matter it is only the evidence of the respondent, one Abdulrahmani Juma which the arbitrator had appended his signature. While on the other hand, the testimony of the applicant’s principal officer, one Agness Kadeghe was not appended with signature of the Arbitrator. Reflecting on this subject, the learned counsel for the applicant further argued that, such inconstancy has raised a question of authenticity to the correctness of the record. And also, led to the tempering of the evidence of the respondent. Furthermore, with respect to the current position of the law, learned Counsel for the applicant submitted that, he is aware of the earlier position of the law as it was cemented in the decision of Attu J. Myna (supra), has now changed. Thus, he submitted, that in the case of Security Group (T) Limited v. Steven Garson Kizinga (As administrator of the estate of the late Mashaka A. Stebe) in consolidated, Civil Appeal No. 386 of 2020 & 50 of 2021 (unreported), the Court of Appeal has held that: 5 “Failure of the arbitrator to append signature at the end of each witness testimony, did not in the circumstance of this case, occasion miscarriage of justice to the parties.” Relying from the decision above, learned counsel for the applicant contended that, such position is distinguishable to the circumstance of this case. He therefore argued that, in the case of Security Group (T) Limited (supra), the arbitrator did not append his signature in the testimonies of all witnesses who had testified. Whereas, in the instant case, the arbitrator has not appended signature in the testimony applicant’s principal officer, who was the sole witness for the applicant. Additionally, he also contended that, in the above authority the court found that the omission has not led to the miscarriage of justice. While, in the circumstance of the case at hand, learned counsel argued that, the applicant herein was prejudiced because there is suspicious of tempering in the evidence of respondent which also raises the question of authenticity. Moving ahead, learned counsel for the applicant argued further that this court is not bound by the decision pronounced in the case of Security Group (T) Limited (supra) since there are two schools of thought with 6 regard to this issue thus; the first school held that, failure to append signature is not fatal as it was referred in Security Group (T) Limited (supra); and on the other hand, the second school thought that it is fatal so to do. See for instance in Attu J. Myna (supra). At this point therefore, the learned counsel’s view is that the decision in the case of Security Group (T) Limited (supra) had not departed from the decision in the case of Attu J. Myna (supra). On the other side, the respondent, through Ms. Mkungu, learned counsel submitted that failure to append signature is not fatal irregularity since the presumption is that, the court records are always accurate and authentic until proved otherwise. To cement her contentious view, she referred the decision in Halfani Sudi v. Abieza Chichi [1998] TLR 527 at page 529 where it was held: “It is a trite principle of law that the court record being a serious document should not be lightly impeached as there is always a presumption that a court records represents accurately what happened.” 7 Reflecting on the claim raised by the applicant’s counsel thus, the evidence of the respondent at CMA was tempered with by failing to record part of it. On such claim, she contended that, the allegation is vague by not elaborating which evidence was tempered. To her view, the applicant’s counsel is throwing a mere allegation which lacks proof and thus, the same cannot be relied to invalidate the whole proceedings. Additionally, Ms. Mkungu further contended that, the authority pegged by the applicant’s counsel with respect to the case of Attu J. Myna (supra), that, the omission to append signature in the testimony of the witness is a fatal issue. In her view, she submitted that, the cited authority is not applicable since labour courts are governed by its own rules and procedures which have been simplified in order to ensure rapid dispensation of justice. Further to that, Ms. Mkungu contended that the Criminal Procedure Code (CPC) under section 2 only applies to High Court, Court of Resident Magistrate and District Court. More so, she pressed that section 88 (4) (b) of the Employment and Labour Relations Act provides for flexibility to the arbitrator in order to deal with substantial merit of the case without being tied by procedural technicalities. Thus, she stressed that, the use of minimum legal formalities should be embraced. To concretize her vantage 8 point, she cited the case of Security Group (T) Limited (supra) where it was stated: “We are aware that the rules guiding CMA proceedings during arbitration are silent on the requirement of signing at the end of particular witness testimony, indeed this being a record of the CMA, it cannot be easily impeached as it is presumed to be authentic as to what transpired before it.” Moreover, learned counsel went on to emphasise that, in this case, the Justice of Appeal nailed further that: “The arbitrator in conducting the proceedings must be guided with minimum legal formalities which suggest that arbitration proceedings are not adjudicatory proceedings.” Resorting on the point raised by the applicant’s counsel that the circumstance in case of Security Group (T) Limited (supra), and that of the instant case are distinguishable in the sense that, in the former, the arbitrator failed to append signature in the testimonies of all witnesses, whereas, in this case at hand, the arbitrator had appended signature in the 9 testimony of the respondent alone. And, unlike wise, he failed to append signature in the testimony of the applicant’s sole witness. Thus, in her contentious view, Ms. Mkungu submitted that, based on such circumstance, the vital issue for determination is to “append signature” by the arbitrator after witness has testified, thus regardless of outlining from which side such witness is belonging. Submitting further, Ms. Mkungu resisted that owing to the circumstance, the basic question to be asked is whether the omission to append signature has prejudiced rights of opponent party. In her opinion the omission has not prejudiced rights of opponent party, and thus, she pressed that what was recorded in the proceedings is the same to what appeared in the judgment. And for that reason, the respondent herein believes the records to be correct and authentic, and the allegation of possible tempering requires a proof. She further added that, if that was the case as claimed, the applicant should have shown how proceedings were tempered with or otherwise it will be dangerous for the court to nullify the proceedings based on a mere allegation. To fortify her point, she cited article 107A (2) (e) of the Constitution of the United Republic of Tanzania of 1977 which provides: 10 “In delivering decision in the matter of civil and criminal nature in accordance with the laws, the court shall observe the following principles, that is to say; (e) to dispense justice without being tied up with technicalities provisions which may obstruct dispensation of justice.” In the end, Ms. Mkungu put further emphases on the provision of section 3A of the Appellate Jurisdiction Act, Cap. 141, and she contended that this court should consider application of oxygen principle in the determination of the matter at hand in order to avoid suffering to the respondent. In conclusion thereof, she prayed the court to uphold that, the oversight by the arbitrator to append signature in the testimony of the applicant’s witness not fatal irregularity which can vitiate the proceedings. To press further, she added that the court’s records are accurate and authentic, and since the Commission for Mediation and Arbitration is guided by rules and procedures, the labour courts have room to resolve disputes without inviting any technicality which can occasion miscarriage of justice. 11 Basically, that is what learned counsels have presented for the court to determine. Now, the crucial question to be answered is whether or not based on the circumstance of this case, failure for the arbitrator to append signature in the circumstance of this case has amounted to the fatal irregularity. Apparently, I am alive of the constitutional principle yielded under article 107A as aforementioned. In the similar way, I am also aware and supportive of the verdict underlined in the case of Security Group (T) Limited (supra) when the court of appeal held thus: “We therefore find that the failure of the arbitrator to append signature at the end of each witness’ testimony did not, in the circum stance of this case, occasion miscarriage of justice to the parties. Consequently, issue number one [that is, w hether the arbitrator’s failure to append signature at the end of the testim ony of each w itness vitiates proceedings of the CM A] has been answered in the negative.” 12 Based on the above findings, in my view, what the justices were aimed at, was to impress the application of section 88 (4) (b) of the Employment and Labour Relation Act (ELRA) thus: “The arbitrator] a) May conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly; b) Shall deal with the substantial merits of the dispute with the minimum of the legal formalities.” This reveals that, to be able to conduct arbitration in a manner that the arbitrator may consider appropriate, the following prerequisite have to be considered, to wit: first , they must resolve the dispute between the parties. Second , they must do so expeditiously. Third , in resolving labour dispute they must act fairly to all the parties. Equally settled under Rule 19 of the Labour Institutions (Mediation and Arbitration) Guideline, 2007 [GN No. 67 of 2007] thus, the arbitrator has powers to determine as to how the arbitration undertaking should be conducted. More so, the application of Rule 19 (supra) gets recognition in 13 Mbeya Urban Water & Seawage Authority v. Lilian Sifael (Civil Appeal No. 300 of 2022) [2024] TZCA 64 (29February 2024) where it was noted: “We are recognizant that in terms of rule 19 (1) of the Labour Institution (Mediation and Arbitration Guideline) Rukes, 2007 [GN No. 67 of 2007], an arbitrator, in the first place, has the power to determine how the arbitration should be conducted.” All said, see also in North Mara Gold Mine Limited v. Isaac Sultan, Civil Appeal No. 458 of 2020 [2021] TZCA 55, (16 December, 2021, TANZLII) where it was also held that: “Our conclusion on this ground is that this case is distinguishable from the case of Iringa international school…………in this case, the arbitrator designed his own way of authenticating the evidence, which is within the power to do in terms of rule 19 (1) of the Rules. We are fully satisfied that the absence of arbitrator’s signature at the end of the testimony of each witness in the case, did not vitiate the proceedings or prejudice any party 14 because, if anything, any possible suspicion on the authenticity of those proceedings, was cleared by the parties and advocates signing.” Now, at this juncture I am persuaded to admit that, all these authorities have set the standard that, as a general rule, there is no requirement under labour laws where the arbitrator is obliged to append signature at the end of each witness’s testimony. It is similarly clear that, the arbitrator under rule 19 (1) of the Rules, has mandate to designate his own approach of resolving the dispute without being strictly tied up with legal technicalities as provided under section 88 of the ELRA. However, regardless of the aforesaid position of the law, yet again, in a number of incidences, the Court of Appeal has insisted that, it is pertinent to adhere the requirement of appending arbitrator’s signature in order to safeguard the authenticity and correctness of the record. See for instance a position set forth in North Mara Gold Mine Limited v. Isaac Sultan (supra), it was, for the purpose of maintaining the authenticity of the evidence when the court indorsed that: 15 “We are fully satisfied that the absence of arbitrator’s signature at the end of the testimony of each witness in the case, did not vitiate the proceedings or prejudice any party because, if anything, any possible suspicion on the authenticity of those proceedings, w as cleared by the parties and advocates signing.” Reference can also be made in the case of Security Group (T) Limited (supra) whereby, after overall observation of the case, a relevant verdict was entered based on the circumstance on that case. That means, the court was fully satisfied that based on the circumstance of the case in general thus, the evidence was authentic and no miscarriage of justice occasioned. After summarised introduction of the principles guiding arbitrators’ business within his mandate, now reverting to the instant case, it is undisputed that during arbitration, there were only two witnesses involved in arbitration undertaking one from each side. Thus includes, the applicant’s principal officer (Ms. Agness Kadeghe) and the respondent herein. And it is true from the records, and also, as synonymously acknowledged by the counsels in their submissions that, the arbitrator had only appended 16 signature in the testimony of the respondent and omitted to append signature in the testimony of the applicant. Now, at this far, the question to be determined by the court in the circumstance of this case is whether, the arbitrator’s action not to append signature in the testimony of witness from one side (applicant) is fatal, and it has caused miscarriage of justice. To answer this question, I firstly, look on the spirit behind signing of witness testimony by the recorder in general. With that, I can recall Order XVIII Rule 5 of the Civil Procedure Code [CAP 33 R.E. 92019] which provides: “The evidence of each witness shall be taken down in writing, in the language of the court, by or in the presence and under the personal direction and superintendence of the judge or magistrate, not ordinarily in the form of question and answer, but in that of a narrative and the judge or magistrate shall sign the same." In my view, this position was further rationalised in the case of Attu J. Myna vs Cfao Motors Tanzania Limited (supra) the Court of Appeal noted that: 17 “We are aware that the Rules governing the proceedings at the CMA do not contain any provision regarding signing of the witness's testimony by the arbitrator. However, it is our view that the requirement is pertinent in order to safeguard the authenticity and correctness of the record.” Taking inspiration from the dictum of Order XVIII Rule 5 of the CPC, and authority envisaged in Attu J. Myna vs Cfao Motors Tanzania Limited (supra), it is clear to me that, issue of authenticity and correctness of evidence or records attains central importance. This means that, if the arbitrator has chosen the modality in terms of Rule 19 (1) of the Rules to authenticate the testimony of witnesses, say it for example, to append signature underneath of each witness’s evidence, then the arbitrator is supposed to apply the same archetypal without marginalisation to other witness (s). Hence, failure to do the same, may rise a question of authenticity and, or correctness of the evidence which have not been authenticated through the preferred standard model. Therefore, since in the instant case, the arbitrator has designated his authenticating model by appending signature at the end of the testimony as it has been done in the evidence of the respondent herein, thus, the 18 arbitrator was obliged to apply the same standard of authentication to the testimony of the adverse witness. Therefore, the arbitrator’s action to marginalise the evidence of the applicant by not appending his signature at the end of it, and instead, only append signature in the testimony of respondent thus, in view of the aforesaid, it cannot be said with certainty that, such testimonies accord same evidential weight with that of the respondent. In the circumstance therefore, the verdict given in Security Group (T) Limited (supra) is distinguishable to the matter at hand, since, in that case, the arbitrator has implemented his authenticity model equally to all witnesses by not appending his signature. In addition to what I have ventured hereabove, I have also critically perused the original records of evidence with a view to observe what was transpired by the witnesses, and what the counsel for the applicant has alleged with regard to lack of authenticity of the testimony of the respondent herein. In my endeavour, looking on the evidence of both witnesses, I observed some alteration by crossing here and there, mostly noted in the testimony of the applicant’s witness, and the same has not been authenticated by signing and dating to show who and when such 19 cancellations were made. In my view, such omission may raise a question as to how authentic such testimony can become. In the end, based on the circumstance of this case in particular, I am of the firm view that, failure by the arbitrator to append signature at the end of the applicant’s sole testimony has occasioned miscarriage of justice for not authenticating the testimony of only one side. Consequently, the whole proceedings is vitiated. Ultimately, I hereby nullify the proceedings and remit the file to the CMA for hearing the parties afresh by another arbitrator. No order as to costs. Accordingly ordered. DATED at DODOMA this 8th day of October, 2024. S. H. HASSAN JUDGE O8/10/2024 Court 20 Ruling delivered in presence of the parties’ advocates who were linked though video conferencing from Dar es salaam to IJC Dodoma. Proceedings are nullified and the file is remitted back to the CMA for hearing the parties afresh by another arbitrator. Sgd: S. H. Hassan JUDGE 08/10/2024 21