CRDB BANK PLC V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 23792 OF 2024 (Arising from an Award issued on 26/7/2024 by Hon. G.M. Gerald, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/514/2022 at Ilala) CRDB BANK PLC ………………………………….…..……….…….……. APPLICANT VERSUS FORTUNATA CASMIR SHIJA …………………...…………………... RESPONDENT RULING Date of Last Order: 15/11/2024 Date of Ruling: 20/11/2024 B. E. K. Mganga, J. Applicant filled this application praying the court to revise and set aside the award of the Commission for Mediation and Arbitration’s (CMA) in Labour Dispute No. CMA/DSM/ILA/514/2022 at Ilala issued on 26th July 2024 by Hon. G.M. Gerald, Arbitrator. In support of the application, applicant filed the affidavit sworn by Mr. Issack Loth Kandonga, her Senior Specialist Labour and Trade Relations. In the said affidavit, applicant raised four grounds namely: - 1. That, the Hon. Arbitrator erred in law and facts by holding that there was no reason for termination contrary to evidence on record and the law. 1 2. That, the Hon. Arbitrator erred in law and facts by allowing respondents’ grounds which were never raised during disciplinary proceedings contrary to law and evidence on record. 3. That, the Hon. Arbitrator erred in law and facts by holding that procedure was not conducted contrary to evidence on record and the law. 4. That, the arbitrator immensely failed to reasonably asses the applicant’s evidence in comparison with the respondent’s evidence and erroneously concluded that respondent was unfairly terminated in terms of reasons and procedure. Respondent opposed the application by filing both the notice of opposition and her counter affidavit. When the application was called on for hearing, I perused the CMA record and find that, when Isaack Kandonga (DW1) was testifying, the arbitrator admitted several exhibits including the charge sheet (exhibit CR1) and termination letter (exhibit CR7). I noted that, proceedings does not show that DW1 prayed to tender those exhibits and further I noted that, the other party was not asked to comment. The arbitrator used the same modality in relation to all exhibits by the respondent. I also noted that, these exhibits were considered by the arbitrator in the award in considering whether termination was fair or not. With those observations I asked the parties to address the court as to whether, the procedure adopted by the arbitrator was proper and the effect thereof. Responding to the issues raised by the court, Mr. Innocent Mushi, advocate for the applicant, conceded that the CMA record does not show 2 that witnesses prayed to tender exhibit and that the other party was asked to comment prior admissions of the said exhibits. Counsel submitted that, he recall that, at the time of hearing, witnesses prayed to tender exhibit and the other party was asked. He added that, the only problem is the modality adopted by the arbitrator in recording exhibits. He further submitted that, the procedure adopted by the arbitrator is not fatal because, the arbitrator can conduct proceedings in the manner he or she thinks it is proper. He added that, the improper admission of exhibits did not occasion injustice to the applicant. Upon being probed, counsel for the applicant conceded that, according to proceedings, exhibits were improperly admitted. He also conceded that, the court cannot use improperly admitted exhibits or consider improperly recorded exhibits. He was quick to submit that, since he was present at CMA during hearing and the procedure had not occasioned injustice, the application should be heard on merit but if the court feels otherwise, let the CMA proceedings be nullified, the award be quashed and order trial de novo. Responding to the issues raised by the Court, Mr. Joseph Assenga, advocate for the respondent, conceded that there were irregularities at the time of admitting exhibits. He quickly submitted that, the irregularities did not occasion injustice to the respondent because 3 section 88(4)(a) and (b) of the Employment and Labour relations Act[Cap. 366 R.E. 2019] gives power to the arbitrator to conduct arbitration in the manner the arbitrator considers appropriate to determine the dispute fairly and quickly and deal with substantial merit of the dispute with minimum legal formalities. When probed, counsel conceded that, the CMA record does not show that there was fairness because, it is not indicated that the other party was asked to comment prior to admission of the exhibit. He quickly submitted that, he was present during hearing and that he is aware that witnesses prayed to tender exhibits and the other party was asked to comment. Counsel added that, the award was issued not based on those exhibits because, respondent was charged with dishonest as misconduct hence termination. But upon being further probed, he conceded that, in the award the arbitrator considered those exhibits. Counsel for the respondent further submitted that, applicant failed to prove that respondent was made aware of the policy that was the base of charging the respondent. Mr. Assenga furher submitted that, the dispute was filed on 12th October 2022 but the awards was issued on 26th July 2024 therefore the court should consider this period because it will be more injustice to order trial de novo rather than overlooking the irregularities committed by the arbitrator. Counsel added that, this court 4 being the court of equity, should concentrate on substantive justice and not technicalities. With those submissions, he prayed that the court should expunge exhibits that were improperly admitted and proceed to consider oral evidence adduced by the parties. In rejoinder, Mushi for the applicant opposed the prayer of exppunging exhibits advancede by counsel for the respondent . I have considered rival submissions made on behalf of the parties in relation to the issues raised by the court suo moto. In their submissions, both counsel conceded that the CMA record does not show that witnesses prayed to tender exhibits and further that it does not show that the other party was asked to comment prior to addmission of the said exhibits. Both counsel share the view that they were present and that witnesses prayed to tender exhibits and further that the other party was asked to comment hence the court should proceed to determine the application on merit. I should, as a starting point, state that proceedings be it by the court or the tribunal, must explain by themselves as to what transpired. Proceedings should not give room for assumptions or explaination by those who were present. In my view, submissions by both counsel that witnesses prayed to tender exhibits and that the other party was asked 5 to comment prior to admission of exhibit as they were present, is an admission that proceedings does not represent what transpired during hearing. In other words, it is a concession that proceedings were improperly recorded leaving vital information or evidence unrecorded. This court cannot rely on improperly recorded proceedings to determine this application. There is no dispute that procedures of admission of exhibits were violated as there was no prayer to tender exhibits and the other party was not asked to comment prior to admission of exhibits. The Court of Appeal had an advantage of explaining the procedure of tendering exhibits in the case of Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (25 June 2021) wherein it held 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 pursuant to Order XIII Rule 4 of the CPC and such admitted document pursuant to Rule 7 (1) of Order XIII of the CPC forms part of the record of the trial court proceedings. In case it is rejected, the reason for its rejection ought to be given (see Order XIII Rule 3 of the CPC).” 6 I am alive that the Civil Procedure Code[Cap. 33 R.E. 2019] is not applicable to CMA. I am of view that, the above quoted procedure is applicable at CMA because, rule 19(2)(b) of the Labour Institutions(Mediation and Arbitration Guideline) Rules, GN. No. 67 of 2007 that gives powers to arbitrators to admit exhibits has no clear procedure on how exhibits should be received and admitted. In short, in presence of the lacuna in GN. No. 67 of 2007(supra), the recourse is Cap. 33 R.E. 2019(supra). It was submitted by both advocates that the improper admission of exhibits did not occasion injustice to the parties. But when counsel for the respondent prayed the court to expunge exhibits and determine the application based on oral evidence adduced, counsel for the applicant opposed that prayer. I should also point out that both counsel are of the view that, what was done by the arbitrator is proper because, in terms of section 88(4)(a) and (b) of Cap. 366 R.E. 2019, the arbitrator can conduct arbitration in the manner he or she considers appropriate and determine the dispute fairly and quickly by dealing with substantial merit of the dispute with minimum legal formalities. I hereunder reproduce the said section for it to speak by itself. “88(4) The arbitrator- 7 (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 substantial merits of the dispute with minimum of legal foramlities.” (emphasis is mine). With due respect to both counsels, in my view, the above quoted provision of the law cannot be used in the circumstances of the application at hand. I am of that view because, the catch words in section 88(4)(a) of Cap. 366 R.E. 2019(supra) is clear that, the arbitrator must ensure that there is fairness and the manner he or she opts to use in determination of the dispute must ensure quick determination of the matter. It cannot be said that there was fairness in the application at hand while proceedings does not show that the other party was asked to comment prior to admission of exhibits. In fact, in my view, failure to ask the other party to comment prior to admission of exhibit is violation of the principle of fair hearing and the right to be heard, which is the natural justice principle. Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020) In our considered view, presentation or tendering of a document in court, infers to the document being presented or tendered in court in the course of the proceeding whereby, each of the party/parties to the proceeding, is/are availed the 8 chance of discussing it. Where the chance to discuss the document has not been given to the party/parties, using such a document in composing the decision is tantamount to condemning the party/parties unheard… As earlier alluded to above, applying a document which was not tendered/presented in evidence as exhibit, is tantamount to condemning the party/parties without according him/them the basic right of being heard. Since the right to be heard is a cardinal principle of Natural Justice, we are sufficiently convinced by the submission which was made by the learned counsel for the appellant, that the act by the learned trial Judge, to base his judgment on a document which had not been tendered and admitted in evidence as exhibit, vitiated the proceedings… In view of the nullity proceeding which led to the appeal under scrutiny, we invoke the revisional powers conferred on us… to nullify the proceeding of the trial Industrial Court, and in lieu thereof, we direct for fresh hearing of the suit before another Judge with a different set of assessors.” It was submittedby counsel for the respondent that, it will be more injustice to order trial de novo considering the period the dispute was filed at CMA and that I should determine the application on merit. With due respect to counsel for the respondent, the court cannot act on proceedings that shows there was violation of natural justice principles. Much as I can sympathize with the parties, that cannot be a ground of ignoring fundamental principles of the law. Be as it may, I cannot make decisions based on sympathy rather, evidence and the law. 9 Since exhibits were improperly admitted in evidence in violation of natural justice principles as explained hereinabove and the arbitrator considered those exhibits in the award, I hereby nullify CMA proceedings, quash and set aside the award arising therefrom and order trial de novo before a different arbitrator without delay. Dated at Dar es Salaam on this 20th November 2024 B. E. K. Mganga JUDGE Ruling delivered on this 20th November 2024 in Chambers in the presence of Innocent Mushi, Advocate for the Applicant and Gerald Msovela, Advocate for the Respondent. B. E. K. Mganga JUDGE 10