REV

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 20682 OF 2024 (Arising from Award issued on 26/5/2023 by Hon. Lyimo, J.C., Arbitrator, in Labour Dispute No. CMA/PWN/KBH/91/2022/03/2023 at Kibaha) CHRISTOPHER EDWARD MAPUNDA …………..…..……………………. APPLICANT

VERSUS

WORLD ISLAMIC PROPAGATION AND HUMANITARIAN SERVICES….………………….….……………….….. RESPONDENT

RULING Date of Last Order: 30/09/2024 Date of Judgement: 04/10/2024 B. E. K. Mganga, J. Christopher Edward Mapunda, the herein applicant, was employed by World Islamic Propagation and Humanitarian Services, the herein respondent, for a fixed term contract of employment. In the said fixed term contract of employment, applicant was employed as a teacher, teaching Mathematics and Chemistry subjects at Wali Ul Asra Education Centre at Kibaha. It was alleged by the applicant that; on 5th December 2022 respondent terminated his employment unfairly. On the other hand, it was alleged by the respondent that, the said fixed term contract was terminated automatically because the agreed period expired. 1 On 16th December 2022, applicant filed Labour dispute No. CMA/PWN/KBH/91/2022 before the Commission for Mediation and Arbitration (CMA) at Kibaha complaining that respondent terminated his employment unfairly. In the referral form (CMA F1), on fairness of procedure, applicant indicated that he was denied right to be heard in a free and fair hearing. On fairness of reason, he indicated that there was violation of Article 22 of the United Republic of Tanzania Constitution and Rule 4(4) and (5) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007. Based on that, applicant indicated that he was claiming to be paid TZS 9,543,005/= and that respondent

be ordered to pay terminal benefits in accordance with the provisions of section 44 of the Employment and Labour Relations Act [Cap. 366 R.E. 2019]. On 26th May 2023, Hon. Joyce Christopher Lyimo, arbitrator issued an award in favour of the respondent that termination was fair because, the contract was terminated automatically after expiry of the agreed period. Applicant was aggrieved with the said award hence this application for revision. In the affidavit in support of the notice of application, applicant raised four issues namely: - 2 1. Whether there were material irregularities in the arbitrator’s proceedings and award itself.

2. Whether the arbitrator erred in law, facts and justice when she did not consider applicant’s dispute as per his form CMA F1 and the subsequent submissions in the proceedings thereto.

3. Whether the termination was both substantively and procedurally fair, in accordance with section 36(a)(iii) of the Employment and Labour Relations Acts [Cap. 366 R.E. 2019] read together with rule 3(1)(c) or 4(4) or 4(5) of the Employment and Labour Relations (Code of Good Practice) Rules GN. No. 42 of 2007.

4. Whether the applicant deserved to be granted any of the remedies sought in accordance with section 40(1)(c) and 44(1)(b)(c)(d)(e)(f) of the Employment and Labour Relations Act [Cap. 366 R.E. 2019]. Respondent resisted the application by filing both the notice of opposition and the counter affidavit of Abdul Issa Ngolombo, her principal officer. When the application was called on for hearing, I perused the CMA record and noted that, witnesses prayed to tender exhibits but the arbitrator neither admitted them nor afforded the other party right to comment on. I also noted that, the arbitrator considered those exhibits in the award. With those observations, before allowing the parties to submit on the issues raised by the applicant, I asked the applicant who appeared in person and Rahim Mwaya, advocate who appeared on behalf of the 3 respondent, to address the court whether, exhibits were properly admitted and the effect thereof. Responding to the issues raised by the Court, Applicant briefly as he was, submitted that, the procedure adopted by the arbitrator was improper and prayed exhibits be expunged and thereafter the Court should proceed to determine the application. On his part, Mr. Mwaya for the respondent concured with the applicant that the procedure was not proper and that, the same vitiated the whoe CMA proceedings. With those brief submissions, counsel for

the respondent prayed the court to nullify CMA proceedings, quash the award and order trial de novo before a different arbitrator. It was correctly, in my view, submitted by both parties that, the procedure adopted by the arbitrator was improper. I am of that considered view because, when Saida Mavumbi Ally(DW1) was testifying, the arbitrator recorded as follows:- “…hivyo alitaka kujua sababu ni nini; nami kumueleza kuwa mkataba wake umeisha…Naomba kutoa mkataba huo kuwa kielelezo W1. Mlalamikaji alilalamika kuhusiana na hilo nami kumwambia sina maelezo…lakini nilicho mwambia ni stahili ya mshahara alioufanyia kazi; naomba kutoa slip ya malipo hayo kuwa kielelezo W2; pia stahiki yake niliyompatia ni cheti cha utumishi naomba kutoa kama kielelezo W3. Mlalamikaji pia alienda likizo …Naomba 4 kuitoa fomu hiyo ya likizo kuwa kielelezo W4(Kielelezo hiki kimekataliwa kwa vile fomu ya likizo haikuwa imeadikwa na Hr)…” It is clear from the quoted evidence of DW1 that, there was a prayer to tender exhibits but applicant was not affordered right to comment whether he objects or not. More so, those documents were not received and admitted by the arbitrator. It was DW1 who prayed to admit those exhibits as W1, W2, W3 and W4 though the arbitrator wrote in a backet as quoted hereinabove that W4 was not admitted. When Christopher Edward Mapunda(PW1), the applicant was testifying, the

arbitrator recorded inter-alia that:- “…Nami nilienda ofc ya Hr na kupewa barua ya kutokuendelea na mkataba. Naomba kuitoa barua hiyo kuwa kielelezo C1. Nami nilihoji juu ya stahiki zangu zilizotajwa kwenye barua hiyo…” It is also aparent from the foregoing that, the purported exhibit C1 was not admitted into evidence and respondent was not asked to comment. From the quoted evidence of the parties, two illegularities were committed by the arbitrator namely, (i) the other party was not asked to comment, (ii) the purported exhibits were not admitted and endorsed. For any exhibit to be considered by the court as part of evidence, it must be properly admitted. In other words, exhibits not properly admitted cannot form part of evidence as it was held in the case Total Tanzania Ltd vs 5 Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (25 June 2021), Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452 (20 July 2022) and Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020) to mention just a few. In Mgonja’s case (supra) the Court of Appeal held inter alia that:- “That is, if the witness wants to tender a particular document, pleaded and attached to his witness statement, he ought to make a prayer for tendering it as exhibit. And the adverse party should be given a chance to

object or concede to its admission. If it is admitted, the trial court ought to comply with the endorsement of such document…It follows from that procedure that exhibits attached to the witness statement do not automatically form part and parcel of the court exhibits unless and until they are admitted in evidence and endorsed accordingly by the trial court…” It is my view that, it was an error for DW1 to pray to tender documents as exhibit W1, W2, W3 and W4. Her duty was just to pray to tender a particular document and leave it to the arbitrator to ask the applicant to comment whether he has objection or not. It was the duty of the arbitrator to record, (i) that there is no objection, if at all, there was none and thereafter receive the document, mark it and assign the number etc. and (ii) the nature of objection, response(submissions) from the party seeking to tender exhibit, rejoinder submissions and ruling overruling or sustaining 6 the objection hence admitting or rejecting the exhibit and thereafter, if objection overruled, admit the exhibit and mark it. I am of that view because, exhibits cannot have automatic mark assigned by the party seeking to tender it as it happened in the application at hand. The duty to assign number or mark the exhibit belongs to the arbitrator or judicial officer and not the party seeking to tender the exhibit. I have pointed hereinabove that,

the other party was not asked to comment. That was deprivation of right to fair hearing hence breach of natural justice principles. There is a litany of case laws that, any decision arrived at, in violation of the right to be heard, is a nullity. See the case of Wegesa Joseph M. Nyamaisa vs Chacha Muhogo (Civil Appeal 161 of 2016) [2018] TZCA 224 (27 September 2018), Said Mohamed Said vs Muhusin Amir & Another (Civil Appeal 110 of 2020) [2022] TZCA 208 (25 April 2022) and CRDB Bank PLC vs The Registered Trustees of Kagera Farmers Trust Fund & Others (Civil Appeal No. 496 of 2021) [2024] TZCA 94 (23 February 2024) to mention but a few. In CRDB’s case (supra) the Court of Appeal held inter-alia that: - “It is trite law that, any decision affecting the rights or interest of any person which is arrived at without such person being afforded a right to be heard, is a nullity even if the same decision would have been arrived at had the effected party been heard.” 7 All the aforementioned exhibits were considered by the arbitrator in her award. As pointed shortly a while, those exhibits were not admitted into evidence hence it was wrong for the arbitrator to consider them. Worse, in the award, the arbitrator considered the purported exhibit W4 which, as I have pointed out hereinabove, she recorded that W4 was not admitted as exhibit. While considering the said purported exhibit W4,

in the award the arbitrator stated: - “… kulingana na kielelezo C1 ni wazi kuwa barua hii alipewa siku ambapo likizo yake ilipaswa ianze kulingana na kielelezo W4… hivyo kulingana na ushahidi uliotolewa Pamoja na kielelezo W4…” That was a great error because, in the proceedings, the arbitrator indicated that, W4 was not admitted as exhibit. It is apparent from the foregoing that, the arbitrator wrongly considered evidence not admitted. It was held by the Court of Appeal in the case of Ismail Rashid vs Mariam Msati (Civil Appeal 75 of 2015) [2016] TZCA 786 (29 March 2016) that:- “It is trite law that judgment of any court must be grounded on the evidence properly adduced during trial otherwise it is not a decision at all. As the decision of the High Court is grounded on improper evidence, such a decision is a nullity.” Guided by the Court of Appeal decisions cited hereinabove, I find that the irregularity committed by the arbitrator, vitiated the whole CMA proceedings. I further find that, the invitation by the applicant that the 8 court should expunge exhibits and proceed to determine the application cannot be accepted because, that will amount to denying the parties right to fair hearing. After all, the error was committed by the arbitrator and not the parties. Therefore, expunging exhibits that the parties intended to be relied upon to prove their case, and thereafter proceed

to determine the application based on the error committed by the arbitrator, in the circumstances of this application, in my view, will be unfair. I therefore nullify CMA proceeding, quash and set aside the award arising therefrom. I hereby remit back the CMA record to CMA so that the dispute can be heard de novo before a different arbitrator without delay. Dated at Dar es Salaam this 04th October 2024. B. E. K. Mganga

JUDGE Ruling delivered on this 4th October 2024 in chambers in the presence of Christopher Edward Mapunda, the Applicant and Rahim Mwaya, Advocate for the Respondent. B. E. K. Mganga

JUDGE 9