dawasa vs moses balagaju 2 others 2019 tzhcld 77 27 august 2019

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 955 OF 2019 DAWASA........ .............................................. APPLICANT VERSUS MOSES BALAGAJU & 2 OTHERS RESPONDENTS JUDGMENT Date of last Order: 16/07/2021 Date ofJudgment: 27/08/2021 Z.G.Muruke, J. The applicant filed the present^appligation seeking to revise the ruling of the Commission for Mediation and Arbitration [herein to be referred to as CMA] which^as delivered on OS01 November, 2018 on the following grounds: - ■%. Whether lit waslproper for the arbitrator to dismiss the applicants ap^ytioi^fio^^tting aside exparte award without taking into consiqeratiok that summons was not dully served as required under C^aw^SF^ K Whether it was proper for the trial arbitrator to dismiss that ^application for setting aside the award without considering that he applicant w s not served with the notice during the delivery of an exparte award as required under the law. The application was supported by affidavit of Florence Saivoiye Yamat, Principal Officer of the applicant. In challenging the application Mr. Evans Robson Nzowa the respondent's advocate filed his counter affidavit. The matter was disposed by way of written submission. The applicant was represented by Zakia Suleiman Mroy whereas Advocate Evans R. Nzowa was for the respondent. Arguing in support of the application the applicant's representative prayed to adopt the affidavit of Florence Saivoiye Yamat to form part of her submission. On the first ground it was submitted that, the law under Rule 16(1), (4) of the Labour Court Rules GN.106/2007 (Rules) provides that, any party who requires a witness to attend any proceedings to give evidence on his behalf may have summons issued by the registrar for that purpose, and the same shall be served by a process server in any manner as prescribed in Rule 9 of the Rules. It was further submitted that the mode of serving summons to the applicant who is a corporate body, is provided under Rule 9 (2) (e) of Rules where the proper person to receive summons was the Authority's Secretary or Director of Legal Service Unit and not any person. The summons was not properly served to the applicant as required by the law. The same were received by Cleophace Mganga who is not the authorized officer as a result the applicant was not aware of the date when the matter was scheduled for hearing. Therefore, the arbitrator erred into dismissing the application to set aside the exparte award. Besides there is no proof of service as required by the law, referring the case of Adam Jeki v. Anton Mayega and three Others, Land Appeal No.59/2019. On the 2nd ground it was submitted that, the award was delivered in absence of the applicant contrary to the law which requires issuance of notice to the parties, referring Rule 21(1) of the Rules and the case of 2 Cosmas Construction Co. Ltd v. Arrow Garments Ltd, (1992) TLR 127, where it was held that; when proceedings are exparte, the absent party has a right to be notified on the date ofjudgement. She thus prayed for the application be granted. In response to the grounds of revision, the respondent's counsel on the 1st ground contended that, the arbitrator was right to dismiss the applicant's application for setting aside the exparte award because the summons was served in accordance with the law. Rule 6(2), (a) (b) of the Labour Institution (Mediation and Arbitration) Rules, GN.64/2007 (GN.64/2007) provides of service of summons. Further, it was submitted that, the respondent's summons was in compliance with Rule 7(1) (c)(i)(ii) of GN. 64/2007. The same were received by a Mr. Cleophace Mgange, the Registry Assistant on behalf of the applicant who dully js filled, signed and stamped the summons as required by the law. He cited the case of China Communications Constructions Company Limited v. Simon Manfred (2015) LCCD Part II 147. As per the 2nd ground the respondent submitted that the ground lacks merit hence should be dismissed. That, the cases cited by the applicant are irrelevant to this matter. He thus prayed for dismissal of the application. I have considered the submission made by the applicant in support of the application. The applicant's representative based her submission on the Labour Court Rules which are not applicable before CMA. If you refer the meaning of the word 'Court' as defined under Section 2 of the Labour Court Rules, it means the Labour Court and not the commission. Linder the circumstances, I find the applicant's submission are irrelevant 3 hence, I disregard them. The matter will be determined in accordance with the evidence on records. Having gone through the respondent's submissions, records and relevant laws, this court is called upon to determine; whether the applicant has good cause to justify the grant of application. Before addressing the stated issue, I find it worth to understand what amounts to good cause. There is a number of cases which elaborated on the same. In the case of Attorney General v. W Tanzania Ports Authority & another, Civil Application No. 87 of 2016 % "Good cause includes whether the application has been '■i- V brought promptly, in absence of any invalid explanation for the delay and negligence on the part of the applicant." r X. 1 Also, in the case of Mbeki Teachers Saccoss v. Zahra Justas Mango, Labour Revision No. 164/2010 HC Mbeya (unreported). It was held that: "... Sufficient reasons are pre conditions for court to set aside its expert order." 1 wv.- In the present case, the applicant advanced two reasons for the Court to revise and set aside the CMA's ruling. One, that the applicant was not properly served with a summons, two the applicant was not notified on the date for delivery of the exparte award. The records speak for themselves, the applicant was served with summons to appear before CMA, the same were dully received by their Registry officer Mr. Cleophace Mgange. The applicant through his legal Officer Mr. Mvano Mandawa attended at the CMA on 15th September,2015, and on that date the matter was adjourned up to 4 7th October,2015 for framing of issues, surprisingly the applicant failed to enter appearance in spite of the fact that Mr. Mvano was aware of the adjournment. Another summons was issued on and again the applicant did not appear before CMA despite of being served with a copy of summons. All these summonses were dully received by Mr. Cleophace whom, it is undoubted that he is the applicant's registry officer. The summons on records reveal that they were dully signed and stamped with Registry assistant to prove that it was properly received by the applicant. As found by the arbitrator, the applicant was aware of the existence of the dispute filed against him, but he opted not to act diligently in pursuing the matter. He thus, negligently deprived himself Jr9* B of the right to be heard and defend his case. Concerning the other reason, I won't labour much on the same on the reason that, the applicant's counsel relied on the Rules which is only applicable before the Labour Court. Basing on the afore said discussion, I find that the applicant has failed to adduce reasonable cause to convince this court to revise the 5