CHRISTINA FRANCIS MWEZI

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA LABOUR REVISION NO. 13248 OF 2024 CHRISTINA FRANCIS MWEZI......................................................APPLICANT VERSUS CHAMA CHA WALIMU TANZANIA.................................................RESPONDENT RULING 3d & 25h October, 2024 MUSOKWA, J. This application for revision was made under sections 91 (1), (2)(c) and 94(1) (b)(i) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019 (ELRA); Rule 24 (1) (2) (a) (b) (c) (d) (e) (f), (3) (a) (b) (c) (d) and Rule 28 (1) (c) (d) (e) of the Labour Court Rules, G.N. No. 106 of 2007 (Labour Court Rules, 2007). The application was supported by the affidavit of Ms. Christina Francis Mwezi, the applicant herein. This matter emanates from an award in Labour Dispute No. CMA/DOM/DOM/22/2023/06/2023 which was instituted by the applicant at the Commission for Mediation and Arbitration (CMA) at Dodoma. The applicant, before the CMA, alleged unfair termination of her employment by the respondent. The applicant was an employee of the respondent, working i as the chief accountant. The CMA issued an ex-parte award which was in favour of the applicant. However, the reliefs sought by the applicant before the CMA did not correspond with the reliefs granted in the award that was issued. According to the applicant, the relief of compensation which was granted was contrary to the prayer of re-instatement which she sought in the CMA referral Form No.l. Aggrieved thereof, the applicant has preferred the instant application challenging the merits of the ex parte award. The matter came for hearing on 3rd October, 2024 whereby Mr. Justus Magezi learned counsel appeared for the applicant. The respondent enjoyed the services of the learned counsel, Mr. Sedrick Mbunda. Mr. Magezi, at the onset, prayed that the court should adopt the affidavit deponed by Ms. Christina Francis Mwezi to form part of his submissions. Upon the prayer being granted, the applicant's counsel proceeded to submit in support of the application. Mr. Magezi stated that, the application challenges the award of the CMA for being unlawful, illogical and irrational, in light of section 91(1) and (2)(c) of the ELRA. Mr. Magezi asserted that before the CMA, the applicant herein sought an order for re-instatement following an alleged unfair termination from 2 employment. This is reflected at page No. 3 of Annexture C- 1, under Part 4 on 'outcome of mediation'. According to the applicant's counsel, the case was proven against the respondent before the CMA. However, instead of the CMA awarding re-instatement which was the only prayer of the applicant, the order of compensation was awarded thereof. Mr. Magezi reiterated that the said award was unlawful because compensation did not form part of the prayers sought by the applicant. Submitting further, Mr. Magezi averred that it is trite law, that the court, or in this case the CMA, cannot grant a relief that was not specifically requested or featured in the pleading. The case of Abdallah Mabula vs Sophia Masanilo, Civil Appeal No. 604 of 2023, decided by the Court of Appeal of Tanzania (CAT), was preferred in support of this position. In this case, the CAT cited with approval the case of Melchiades John Mwenda vs Gizelle Mbaga and Others, Civil Appeal No. 57 of 2018. The applicant's counsel further alleged that the award was unlawful because the respondent, who participated in the initial proceedings but later on disappeared, did not contest the said prayers. The respondent failed to enter appearance at the hearing of the dispute before the CMA, resulting in the impugned ex-partedecision. In addition to the aforementioned, Mr. Magezi 3 challenged the reasoning behind the award; claiming that the reasons provided were illogical and unjustifiable. The arbitrator stated that the decision was reached in exercise of prudence, due to the fact that the applicant had been out of employment for a long time. The applicant submitted that the alleged prudence was not exercised judiciously. Further, that the applicant was out of her employment due to the acts of the respondent which were proven to be unfair. In concluding the submission in chief, Mr. Magezi prayed that the court, should find the award to be unlawful. Accordingly, should proceed to exercise its revisional powers; and order the re-instatement of the applicant, and any other reliefs that this honourable court will deem fit and just to grant. In reply, Mr. Mbunda counsel for the respondent, first prayed that the counter-affidavit be adopted to form part of his submissions. The said prayers were granted. The respondent's counsel stated that the orders in the award are based under section 40 (1) (a), (b), (c), and section 40 (2) and (3) of the ELRA, which deals with the remedies for unfair termination. Further that the wording of the section is not coached in mandatory terms as the word used is 'may'. Therefore, the arbitrator /zvayorder certain actions to be undertaken by the employer. Thus, contrary to the assertions by the 4 applicant's counsel, the CMA is at liberty to exercise its discretion in determining the remedies to be availed to an aggrieved party. Accordingly, Mr. Mbunda stated that the said discretionary powers were exercised judiciously, in issuing the award of compensation instead of re-instatement. The practice merely requires the arbitrator, if he departs from the reliefs prayed by the complainant, to provide reasons for so doing. The said reasons were clearly stated by the arbitrator, which the counsel for applicant also referred to. The respondent's counsel argued that the reasons are provided on page 7, last paragraph of the impugned award whereby the arbitrator considered the time the applicant had been out of her employment. Mr. Mbunda submitted that looking at the records, the issue at hand is whether or not the reasons stated by the arbitrator for such departure of the applicant's prayers before the CMA were justifiable. According to him, the reasons advanced by the arbitrator were justifiable. The case of Fredrick J. Chacha vs Stemo Security Co. Ltd, Labour Revision No. 92 of 2011 (unreported), cited in the case of Magnus Laurean vs Tanzania Breweries Limited, Civil Appeal No. 25 of 2018 (unreported) were preferred to cement this point. Mr. Mbunda prayed that, should the court find that the arbitrator did not exercise his powers judiciously, then the 5 remedy should be to quash the award and re-mit the case file to the CMA, for re-consideration of the reliefs sought by the complainant. In this regard, the case of Mantra Tanzania Limited vs Joaquim Bonaventure, Civil Appeal No. 145 of 2018 (unreported) was cited. The respondent's final prayer was for the application to be dismissed for want of merit. In rejoining, the applicant's counsel essentially adopted his submission in chief. Mr. Magezi firmly attacked the reason advanced by the CMA for the departure of the reliefs prayed for by the applicant. The applicant asserted that the complainant had only been out of employment for a period of 8 months. Hence, the consideration of time out of employment, being advanced as the sole reason for the said departure, was baseless and unfounded. The 8 month period was the cumulative period from the date of termination of employment, to the date the award was issued. Mr. Magezi prayed to distinguish the cases cited by the respondent, to the instant application. That in the case of Magnus Laurean (supra) at page 26, it was the holding of the CAT that an award of compensation should only be granted in lieu of re-instatement, in the circumstances that the procedure for termination is deemed to be unfair. However, where both the procedure and substance are unfair, then re-instatement should be ordered. According 6 to the applicant, the CMA found that both the procedure and substance were unfair. Regarding the case of Mantra Tanzania Limited (supra), the applicant asserted that this case is also distinguishable as it was a civil case while the matter before this court is a labour matter. Thus, the proposed consequential orders by counsel for the respondent; to re-mit the matter to the CMA, is inappropriate. Further contending the proposed consequential orders advanced by the respondent's counsel, Mr. Magezi, stated that this court is vested with revisional powers as provided under section 91 (2) (c) and 91 (4) (a) and (b) of the ELRA. The sections provide that the Labour Court may set aside an arbitration award; and proceed to determine the dispute accordingly. Before I proceed with the determination of this matter, it is pertinent to note that the applicant is challenging the merits of an ex parte award granted by the CMA in her favour. Indeed, this is proper in law and therefore this application is competent before this court. For the purpose of emphasis, the case of Dangote Industries Limited Tanzania vs Warnercom (T) Limited, Civil Appeal No 13 of 2021 (unreported) quoted the case of Jaffari 7 Sanya & Another vs Salehe Sadiq Osman, Civil Appeal No. 119 of 2014 (unreported) and the CAT held as follows: - "This rule of setting aside an ex parte decree will only benefit a defendant. But there are two possible scenarios in an ex parte decree. One, a defendant might not want to set aside an ex parte decree but may wish to contest the findings of the award. Two, a plaintiff notwithstanding that the decree is in his favour, might nevertheless wish to challenge the finding of the award." [emphasis added] Having established the competence of the application before this court, the main issue for determination is whether or not the order of compensation issued by the CMA instead of reinstatement without loss of remuneration was justified. Undoubtedly, the applicant initiated the labour dispute at the CMA through a CMA referral Form No.l and prayed for re-instatement. Essentially, the CMA referral Form No. 1 is synonymous to the pleading. In the case of Magnus Laurean (supra) the CAT held on this point that: - "It is settled that generally an arbitrator or the High Court, Labour Division has no jurisdiction to grant a relief which is not prayed for in the referral form, the said form being understood synonymously with a plaint" [emphasis added] 8 Similarly, the CAT in the case of Dew Drop Co. Ltd vs. Ibrahim Simwanza, Civil Appeal No. 244 of 2020 (unreported) held as follows: - "The Court in the case of Security Group (T) Ltd vs Samson Yakobo and 10 Others, Civil Appeal No. 76 of 2016 (unreported)) interpreted Form No. 1 to be synonymous to a plaint. The respondent was supposed to list down in his Form No. 1 all the reliefs which he sought to be awarded by the CMA [emphasis added] Reading the contents of the CMA award, the arbitrator considered the circumstances of termination and the duration the applicant had been out of her employment as the basis for grant of reliefs. Upon the said consideration, the CMA issued an order for compensation in lieu of re-instatement which was specifically pleaded by the applicant. At page 7 of the impugned award, the arbitrator stated as follows: - "...ni wazi kwa mazingira ya kuachishwa kazi na muda mlalamikaji alikaa nje ya Ofisi, Tume imeona si busara kumrudisha kazini mlalamikaji..." Looking on the ground advanced by CMA, I am of the view that an order of compensation issued by the CMA instead of reinstatement without loss of remuneration was not justified for a number of reasons. First, the CMA found that the termination of the applicant was both substantively and procedurally unfair. At page 7 of the award, it is recorded that "hivyo kwa 9 kuhitimisha, mlalamikaji a/iachishwa kazi biia sababu za msingi na biia utaratibu ha/a/i". The fact that the termination was both substantively and procedurally unfair, the appropriate order ought to be reinstatement without loss of remuneration unless exceptional circumstances are demonstrated. In the case of Magnus Laurean (supra), the CAT held that: - "But if the termination is held to be both substantively and procedurally unfair, it will be fitting to order reinstatement without loss of remuneration unless there are justifiable grounds for not doing so in terms of Rule 32 (2) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, G.N. 67 of 2007 ("the Guidelines Rules")"[emphasis added] Second, the court is generally supposed to grant reliefs specifically indicated by the parties in their pleadings. The case of Dew Drop Co. Ltd (supra) is instructive in this regard and it was held that: - It is trite law that, as a general rule, reliefs not founded on the pleadings and which are not incidental to the specific main prayers sought in the plaint should not be awarded" [emphasis added] From the holdings above, it follows therefore that a court or CMA cannot grant a relief that was not specifically requested or pleaded. This is also the io position in the case of Abdallah Mabula (supra), cited by the counsel for the applicant. Third, the reasons advanced by CMA to order compensation instead of reinstatement without loss of remuneration do not fall under the exceptions provided under Rule 32 (2) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, G.N. 67 of 2007 (the Guidelines Rules of 2007). For the purpose of transparency, Rule 32 (2) of the Guidelines Rules of 2007 provide as follows: - 32(2) The Arbitrator shall not order re-instatement or re­ engagement where- a) The employee does not wish to be re-instated or re­ engaged; b) The circumstances surrounding the termination are such that a continued employment relationship would be intolerable; c) It is not reasonably practical for the employer to re-instate or re-engage the employee; or d) The termination is unfair because the employer did not follow a procedure. According to the respondent, it was submitted that the reasons advanced by the CMA before departure from the reliefs pleaded in the CMA referral Form No.l were justifiable. In an attempt to persuade this court, the respondent cited the case of Fredrick J. Chacha (supra) which was deliberated in the case of Magnus Laurean (supra). Regrettably, the respondent misdirected li himself and as a result, submitted a self-defeating argument. For clarity, at page 27 of the Magnus Laurean case (supra), it was held that: - "It is settled that generally an arbitrator or the High Court, Labour Division has no jurisdiction to grant a relief which is not prayed for in the referral form, the said form being understood synonymously with a plaint - see Security Group (T) Ltd. v. Samson Yakobo &Ten Others, Civil Appeal No. 76 of 2016; and Dew Drop Co. Ltd v. Ibrahim Simwanza, Civil Appeal No. 244 of 2020 (both unreported). We read the decision of the High Court, Labour Division in Frederick J. Chacha (supra), relied upon by the appellant, but obviously it is not binding on us. We are aware that the same court (Aboud, J.) in SDV Transami (T) Limited v. Faustina L. Mug we, Revision No. 227 of 2016 (unreported) took a different view, of which we approve."[emphasis added] From the holding above, the CAT stated categorically that the case of Fredrick J. Chacha (supra) was not binding to the CAT; thus the holding thereof was not approved by the CAT. However, the position in the case of SDV Transami (T) Limited (supra) was approved by CAT to be good law. The approved position is reflected on page 6 of the latter case where Aboud J (as she then was) stated that: - "I find that the arbitrator exercised his discretionary powers 12 without considering what had been prayed in CMA Form No.l an error which makes the award revisable," [emphasis added] Thus, the reason advanced by the CMA for the departure of the relief prayed for by the applicant in the CMA referral Form No.l, was insinuated by wisdom or prudence which was not in line with the requirement of the law, as ably demonstrated herein. That said, this court revise the CMA award and set aside specifically the order of compensation which is not justified for being unlawful and illogical. The order of compensation is vacated, based on the holding of the case of Magnus Laurean (supra), among other authorities. The said case held that: - "In the instant case, we find no basis to interfere with the learned Judge's award. First and foremost, she was justified to vacate the order for reinstatement on the ground that it was not prayed for in the referral form. [emphasis added] As regards to the consequential orders, the parties have parted ways. On one hand, the applicant has suggested that this court should find the award to be unlawful. Accordingly, this court should proceed to exercise its revisional powers and order the re-instatement of the applicant, and any 13 other reliefs that this honourable court will deem fit and just to grant. On the other hand, the respondent stated that; this court should find that the arbitrator did not exercise his powers judiciously; then the remedy should be to quash the award and re-mit the case file to the CMA, for re-consideration of the relief sought by the complainant. The case of Mantra Tanzania Limited (supra) was cited in this regard. Before I dwell into the arguments of both parties concerning the way forward, it is important to appreciate the provision of section 91(4) (a) of ELRA. The said section provides that where the award is set aside, the Labour Court may determine the dispute in the manner it considers appropriate. Similarly, Rule 28(1) (e) of the Labour Court Rules 2007 provide that the Court may revise the proceedings and make such order as it deems fit. Certainly, the cited provisions are in agreement with the proposal made by the applicant regarding the powers of this court. I have carefully read the case of Mantra Tanzania Limited (supra) relied upon by the respondent on the way forward. Indeed, it is a labour matter and costs were not granted for that reason. Therefore, the applicant's submissions that the case is distinguishable for being a civil a case is, with due respect, incorrect. Nevertheless, the said case does not support the 14 respondent's proposal on the way forward. To the contrary, at page 12, the CAT held as follows: - '"Despite that finding, the High Court did not consider the respondent's prayer for reinstatement which was one of the reliefs sought in CMA Form No. 1. Under s. 40 (1) of the ELRA, reinstatement to employment is one of the remedies which an employee may be granted when it is found that he was unfairly terminated from his employment. Since the respondent had prayed for that relief, it is imperative that, after having found that his termination was substantially and procedurally unfair, the High Court ought to have considered whether or not to grant that relief. In our considered view therefore, by omitting to do so, the High Court strayed into an error, "[emphasis added] Essentially, the facts of the case cited above are similar to the present case in that; reinstatement was one of the reliefs sought in the CMA referral Form No. 1, but the said relief was not considered by CMA. There is therefore no justification why this court should not consider on whether or not to grant the said relief. By doing so, this court will also be addressing the framed issue on whether or not the order of compensation issued by the CMA instead of reinstatement without loss of remuneration was justified. Based on the cited authorities, and having found the order of compensation to be unlawful and illogical, I substitute the award of compensation as 15 ordered by the CMA by replacing it with reinstatement. Ultimately, I order the respondent to reinstate the applicant without loss of remuneration from the date of unfair termination to the date of reinstatement. I make no order as to costs because this is a labour dispute. It is so ordered. Right of appeal fully explained. DATED at DODOMA this 25th day of October, 2024. I.D. MUSOKWA JUDGE Ruling delivered in the presence of learned counsels Mr. Magezi Justus and Ms. Sarah Wilfred for the applicant; and in the absence of the respondent. I.D. MUSOKWA JUDGE 16