dongxing international real estate vs emmanuel tawino 2021 tzhcld 2102 26 november 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO.296 OF 2020 BETWEEN DONGXING INTERNATIONAL REAL ESTATE LIMITED AND EMMANUEL T. AWINO RESPONDENT JUDGMENT Date of last order:15/9/2021 Date of Ruling:26/ll/2021 V. B.E.K. Mganga, J (( On 23rd September 20,16 applicant employed the respondent as security guard. On 25th April 2019 applicant terminated employment of the respondent. Being^aggrieved with termination, on 8th May 2019, respondentxeferred1'Labour dispute No. CMA/DSM/KIN/34/2019 to the Commissibn^for^Mediation and Arbitration hereinafter referred to as CMA claiming^tp be paid TZS 10,000,000/= being one-month salary in lieu of notice, unpaid leave, unpaid salary and twelve months salary compensation. On 2nd August 2019, Abdallah, M, arbitrator issued an i exparte award and ordered the applicant to pay the respondent a total sum of TZS 15,312,709/=. On 27th July 2020 applicant filed this application seeking to revise the said exparte award. The Notice of Application is supported b^aTi affidavit sworn by Paul Makang'a, counsel for the applicant. In the said^affidavit, the deponent deponed that applicant became aware qf/existence of the said exparte award on 30th June 2020 at the time TambazaAuction Mart Court broker served the applicant with warrant of?attach‘ment issued in execution application No. 734 of 2019 that^vas fHed^by the respondents. That after being served with the exparte av^ard^applicant went to CMA to peruse J? CMA record and found that unknown person made application to set aside the said exparte award^sbi^the application was dismissed. It was deponed that the sa^applicatiqn to set aside an exparte award was made by the respondent^who^forged the signature of . Alexander Bange, the principal officer of tfte/applicant. On 14th September 2020, respondent filed a notice of opposition together with a counter affidavit resisting the application. On 18th 2 September 2021 the respondent filed a notice of preliminary objection that the application is time barred. When the matter was called for hearing of the preliminary objection on 15th September 2020, Mr. Stephen Minde, the personal representative respondent. On the other hand, Mr. Athanas Wigancadvocate appeared and argued for and on behalf of the applicant. Having^ heard submissions from both sides, I overruled the preliminary objectipmand reserved the reasons promising to deliver the same in thejudgment as I hereby do. if r Mr. Minde submitted that csn-exparte award was issued on 2nd August 2020 but the applicantxhas filed this application on 27th July 2020 while out of time. He^ubmitted further that, applicant filed application No. CMA/DSM/K^/34^/2019 that was dismissed by CMA on 18th October 2019. He went^op\that; if applicant was aggrieved by the decision in the later ap^icatio^she was supposed to file revision application within 42 days that ended in November 2019. He concluded by praying this application be dismissed for being time barred. 3 Mr. Wigan, counsel for the applicant submitted that the application was filed within time as applicant became aware of existence of the exparte award on 30th June 2020, the date the applicant received the two awards after being served with warrant of attachment arid decided to go at CMA to conduct a perusal of the CMA record. Counsel submitted that there is no proof that applicant received summons ,pr^ that* applicant filed application to set aside the ex-parte award. H^vent-dn that, applicant noted that one Alex Bange who is not an emplo^ee tif the applicant made application to set aside the said exjparte award, counsel was of the view (T W that, time started to run against^the^applicant from the date she made perusal and was issued withrthe awards. In rejoinder, Mr?h^node, submitted that the application to set aside exparte aw.ard.wasjnade by Alex Bange the Human resources officer of the applicantand thabthere was no forgery. studied the CMA file and find that on 23rd June 2020 CMA received a letter from Aymak Attorneys praying to peruse the file. In the said letter, an attorney for the applicant wrote:- 4 "... that we have recently noted with concern that the above-mentioned matter has been decided ex-parte the (sic) respondent as per the decision delivered on 2fd August 2019. Your honour, considering the fact that we do not have any facts or documents relating the aforementioned application, we hereby request your esteemed office to permit us to peruse the aforementioned order in/qrder tp establish the facts of the application as well make copie^of^he relevant documents so that we can review the same and advise our dint accordingly..." As applicant alleged that she became aware\of existence of the exparte award on 23rd June 2020, and that^ttiere^were forgeries, I dismissed the preliminary objection to allow, the';parties to argue the main application. Counting from 23rd dune^J020‘;to 27th July 2020 i.e., date of filing this application is 34 days welhwithin time. If we count from 30th June 2020 the date it is alleged That applicant, was served with warrant of attachment, the applTcation^was filed 30 days after. The mai^i^lie is whether there is evidence to show that the award was p rocu re chth rough forgery. This issue depended on arguments of the parties'iR'the main application on merit. When arguing the main application, Mr. Wigan counsel for the applicant submitted that there was fraud and impersonation in procurement of the award. That, applicant did not receive summons and 5 that the person who was appearing allegedly from the office of the applicant, impersonated the name of the officer of the applicant. The said person who was impersonated is Alexander Bange. This led to exparte award to be issued in favour of the respondents. Counsel went on that, on 23rd June 2020 applicant made file perusal at CMA and^noted that?there was impersonation. He argued that, applicant did not file^an application at CMA to set aside an exparte award as there was^ahotlier/CMA ruling dated 18th October 2019 dismissing an application filed, by unknown person, to set aside the said exparte award.^^ Counsel for applicant suonji^^that applicant wrote a letter to Reginal Police Commander complaining against impersonation and forgery committed by the respondent When asked by the court as whether there is evidence on th^affi^avit showing that the said letter was received by Mv' police, counseNconceded that there is no.evidence to that effect. Counsel conceded (further that, there is no name or stamp of Police Station at which the said letter was received and that the letter itself does not show the name of the author. He conceded further that, names of the author in the document intends to verify authenticity and originality of the document and that the author can be traced if anything happens. Counsel for applicant 6 also conceded that, he does not know investigation file number relating to the alleged impersonation and fraud committed in relation to this application. Mr. Wigan, counsel for the applicant submitted that respondent /\ forged the signature of Alexander Bange, the Humari\Resources and Administrator of the applicant and made applicationjo set-aside an exparte award and that; based on that forgery, CMA dismissecMhe application on 18th October 2019. He however conceded\that;> there is no affidavit of Alexander Bange stating that his* signature was forged and that he (( (Alexander Bange) in no time, enterec^appearance at CMA in the dispute in question. Counsel concededvfurther that, in absence of the affidavit of the said Alexander Bange, the allegation of forgery of his signature cannot be proved. Counsel conceded further that, in absence of affidavit of the said Alexander^BahqeJwhat is contained in-the CMA application to set aside the exparte ruling and the ruling itself cannot be proved that they were not stated by him. 'Mr. Wigan, counsel for applicant submitted that Alexander Bange is in office of the applicant. He submitted that, there are three revisions pending before this Court all in which it is alleged that the 7 signature of Alexander Bange was forged. These revisions are No. 134/2021 that is before Hon. Rwizile, J, No. 319 of 2020 before Hon. Maghimbi, J and this one. All these relates to exparte award and that respondents are different. In all these revisions applications, respondents forged the signature of the said Alexander Bange and^that^plfcant has reported to Police that there is forgery. Counsel for applicant conceded that, Alexander Bange was not asked to file an affidavit^in this application and all others that are pending, before otheiyudges and failed. When asked by the court as to whether the report^eiatjng to forgery was reported to \\ police by Paul Makang'a, an advocateOfor the applicant, who swore an affidavit in this application, (counsel conceded that the said Paul Makang'a, did not report to When asked by the court as to whether, it was proper for Paul Makang'a, advocate to verify in the verification clause that theinformatioq, including that of forgery, J m personation and a report to Police therj|ojy is correct according to his knowledge. Counsel conceded furtherv,tl?at it was not proper. With all these, counsel for applicant maintained that the application be granted, and the award be revised. On his side, Steven Minde, the personal representative of the respondent argued that applicant has failed to advance good grounds. 8 Mr.Minde submitted that, there are no valid reasons for absence of the affidavit of Alexander Bange and that in absence of that affidavit, all what is stated in the affidavit in support of the application becomes hearsay. Mr. Minde went on that, applicant was supposed to challenge the ruling that dismissed application to set aside exparte award andYqpt theVexparte award as applicant has done. He.submitted that if at all applicant believed that the said ruling was procured by fraud, she was^supposed to file application for revision so that it can be revised^MrY Minde concluded that the application to set aside the exparte award was made by the said (\ Alexander Bange who appeared\^d^r:gued the application at CMA and & that there was not fraud whatsoever. He therefore prayed the application be dismissed. <\ jS I have passionately examined both the affidavit and counter affidavit ycv" filed in ^this^application and submissions thereof and find that the appji^ation^hinges on the claim of the alleged forgery of the signature of one Alexander Bange, the Human Resources and Administrator of the applicant. I agree with the submissions by Mr. Minde, the personal representative of the respondent, that applicant was supposed to make an application first at CMA to set aside the said ruling on ground that it was 9 obtained by fraud or challenge the said ruling at this court and not to challenge the award. Applicant was duty bound to file the affidavit of the said Alexander Bange at CMA and be ready for the said Alexander Bange to be cross examined by the respondent, but she did not. It is my .view that, O applicant has done so for obvious reason that she fearedsher tniclFto be unclothed. It is my view that, all allegations relating to fraud was made as S-? & Av\\ an afterthought after applicant has failed to setfaside^the exparte award and became out of time, which is why, she waitecf to pray her last card based on warrant of attachment as the date she first became aware of existence of the exparte award. Ixshould^confess that applicant has been so treacherous in this application such that respondent who is being represented by a non-la^ye^yvas somehow caught unaware. ! should point here that, parties (advocate inclusive, should try to their best to assist the court to a<Bve^^just and fair decisions without manipulating facts and evidence to favour their side. I should also point that, in some occasions, 17 the court may take strong measures against those who manipulate facts and or evidence in their favour, to defend its integrity and for the purposes of delivering fair and just decision to the people. 10 In the application at hand, the affidavit of the said Alexander Bange was not annexed to the affidavit in support of the application. In my view, and without choosing for the applicant who to file an affidavit, in the circumstances of this application, it was more appropriate for the said Alexander Bange to file an affidavit in support of the appl(cation\than Mr. Paul Makang'a advocate or the later to file an affidavit as.he did and annex it to the affidavit of the said Alexander Bange. Afisence;of the affidavit of the said Alexander Bange, has made all ^facts^relating to fraud and or impersonation as hearsay. In fact^ther^e are-\a plethora of decisions by the Court of Appeal that an affidavit which mentions another person is hearsay unless that other person swears as well. Some of these decisions are Sabena Technics Dar^imited 16 Michael J. Luwunzu, Civil Application Nol\451/18. of 2020, CAT (unreported), Franconia Investments^!#} v. TIB Development Bank Ltd, Civil Application No. 27<Q/01 of(^20, Benedict Kimwaga v. Principal Secretary Ministry of Heaith^QXvW Application No. 31 of 200, NBC Ltd v, Superdoll Trailer Manufacturing Company Ltdf Civil Application No. 13 of 2002 (all unreported to mention but a few. ii As pointed herein above, the central claim by the applicant is that the respondent committed fraud by impersonating and forging the signature of Alexander Bange to show that the said Alexander Bange made an application to set aside the exparte award and appeared at CMA. Counsel for applicant conceded that, in the application at hand, ^he^affidaj^bf the said Alexander Bange was not filed or annexed to the^afficlavit of Paul Makang'a, advocate, who filed an affidavit in supporrbfc-the application. It x\ \\ was alleged that, applicant reported to <police^complaining about the alleged fraud but counsel for applicant .conceded, correctly in my view, that it is not known at which police station the report was made. He conceded further that, the author of the alleged report is not known and further that the said Alexander Bange did not report at police complaining that the respondent has (committed impersonation and forged his signature. Counsel for ttie_a^plicant conceded further, correctly in my view, that, the af^davit^^^upport of the application was improperly verified by Paul Makang'a^advocate in relation to matters relating to forgery of the signature of the said Alexander Bange and impersonation that were within his domain of his knowledge as the whole fraud did not relate to him. In 12 short, counsel conceded that all paragraphs relating to fraud, offended the rules on affidavit. Once a paragraph has been found to have offended the rules relating to both an affidavit and a counter affidavit, it has to be strucleout leaving the ones in compliance with the rules as it was held by the^Court of Appeal in the case of Rustamali Shivji Karim Merani/,v. Kama! Bhushan if W • Joshi, Civil Application No. 80 of 2009 (unreported). Guided by that decision of the Court of Appeal, I hereby expunge^all paragraphs relating to fraud and impersonation from the^affidavibof Paul Makang'a advocate in support of the application. Aften^exgunging these paragraphs, nothing material remains in support^the application to justify this court to revise the exparte award hence^the^application fails. As poin^d^erein above, in CMA Fl. Applicant was claiming to be paid TZS^,000;000/= but in the exparte award he was awarded TZS 15^127^/=. In short, the applicant was awarded more than what he pleaded in the CMA F.l. This, in my view, is wrong. Parties are bound by their own pleadings and are not supposed to depart therefrom as it was held by the Court of Appeal in the case of Astepro Investment Co. Ltd 13 k Jawinga Company Limited, Civil Appeal No. 8 of 2015, CAT (unreported) that:- "...proceedings in a civil suit and the decision thereof, has to come from what has been pleaded, and so goes the parlance ’parties are bound to their own /^\\ O pleadings’... the decision which was delivered by the learned,trial vudge^did notarise from what had been averred by the parties in their pleadings. ■ . * The respondent was bound by his pleading'Jand the arbitrator was supposed to determine the dispute based;^ on those pleadings. X.X > \ Unfortunately, the arbitrator in awarding^tfie-respondent, went beyond the (( pleadings that were filed. I anr/very'cautious with the use of inherent J) ' powers of the court but for the^interest of justice I have to. In RustamaH's case, supra>^e<ourt of Appeal held:- , ... "There is no~doubt~that this court has inherent powers under certain (( circumstancesJ:o\put/things right in the interest of justice, but that power should notljelsed to advance abuse of court process. In our view, it is an to invoke the court's inherent powers to correct counsel's error or^mistake, or condone a flagrant breach of the law or rules of the In the application at hand, the respondent prayed to be awarded TZS 10,000,000/= as pleaded in CMA F.l but he was awarded TZS 15,312,709/=. The amount awarded come from the arbitrator and not from 14 pleading filed by the respondent. Guided by the above Court of Appeal decision, I have to invoke inherent powers of the court and correct the error committed by an arbitrator who awarded the respondent more than I what was claimed in the pleading. I believe that, in correcting that error, justice will not only smile, but cherish between the panties. I the?efore, invoke revisionary power under section 94(l)(b)(i) of the* Employment and Labour Relations Act [Cap. 366 R.E. 2019] andrrevise-the award to the \\ extent that respondent shall.be paid TZS 10/000,000/= claimed in the CMA 15