dhl tanzania ltd vs nyamoko miyasi nyamoko 2021 tzhcld 339 18 august 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 280 OF 2020 DHL TANZANIA LTD..............................................APPLICANT VERSUS NYAMOKO MIYASI NYAMOKO....................... RESPONDENT JUDGMENT Date of last Order:11/06/2021 Date of Judgment: 18/08/2021 Z.G.Muruke, J. Respondent instituted labour dispute number CMA/DSM/ILA /R.388/15/17 on April, 2017. Same preceded expert before Mkenda Mediator in which experte award was issued on 18th December,2018. Efforts to set aside expert award was not successfully, thus necessitated filing of present revision. Application is supported by an affidavit sworn by Gwamaka Mwaikugile applicant's counsel. Respondent filed counter affidavit sworn by his advocate Gwamaka Mwaikugile. Hearing was by way of written submission. Both parties complied hence this judgment. Having gone through affidavits, submissions and CMA records, the issue before me is whether applicant was afforded right to be heard in the circumstance of this case. At paragraph 3.2 it was averred that. "On 22nd May 2017, the applicant appeared at 12:00 PM as agreed by the commission but realized that, the matter was heard exparte on 10:00 am by Hon. Mkenda Mediator. And exparte Award was scheduled to be delivered on 15th August, 2018. [/r . , 1 3.3. Surprisingly and without Notice, after four months on 18th December, 2018, the Commission for Mediation and Arbitration dispute CMA/DSM/ILA.R.388/15/17 issued an expert award against the applicant. Where on 21st December, 2017, applicant was informed of expert award of Hon. Mkenda, mediator. 3.4 After receiving the letter applicant made a needful act to verify the validity of the ex-parte Award, where the applicant made a follow up of the award and the same was obtained in January, 2018." The above three paragraph 3.2,3.3 and 3.4 above, has been just disputed by respondent counsel, except the date of delivering of the award. What applicant has averred at paragraph 3.2,3.3 and 3.4 are seriously facts, that need to be countered seriously. Affidavit being sworn evidence reduced into writings, need to be disputed by attaching evidence. General denial, on serious allegation render paragraph sworn to be believed, because no evidence paraded to disown the averments. Failure to dispute serious allegation as sworn at paragraph 3.2,3.3 and 3.4 by Gwamaka Mwaikugile, renders the above paragraph to be ilk believed. That being the case then, it was wrong, and against Principal of I Wz fair hearing by the mediator. Rules of natural justice insist on right to be heard, failure to observe, the same, render, decision to be void. Nature justice demands parties to be heard before decision affecting their right is issued. The right to be heard and defend in any matter before the Court, or any decision making body is so fundamental and a Constitutional one. There are various court decision insisting on the same. 2 In case of Abbas Sherally & another vs. Abdul S.H.M Fazalboy, Civil Application No. 33 of 2002, the Court of Appeal held that: - 'The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice". "It has long been settled that a decision affecting the individuals rights which is arrived at by a procedure which offended against principles of natural justice, is outside jurisdiction of decision- making authority." Also in the case of Mbeya - Rukwa Auto parts and Transport Ltd. vs. Jestina Mwakyoma [2003] TLR no. 251, it was held that:- "In this country natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard amongst the attributes of the equality before the law, and declares in part:- (a)wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi na Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu". Mediator made a mistake by not affording applicant opportunity to defend her suit. To this court this is the anormally that goes to the root of the substantive justice. Thus, experte proceedings, ultimately experte 3 4^' award issued by Hon. Mkenda, Mediator is quashed and award is set aside. Automatically, proceedings to set aside experte award dies natural death as they both emanate from quashed proceedings and award. Parties to proceed at CMA, at the stage reached before experte proceedings before another Mediator. Ordered accordingly. 4