DORMAN TANZANIA LIMITED V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 5927 OF 2024 (Arising from Award issued on 29/12/2023 by Hon. Mwangata Makawa, Mediator in Labour Dispute No. CMA/DSM/ILA/293/2023 at Ilala) DORMAN (TANZANIA) LIMITED .......……….….......……. APPLICANT VERSUS PAUL MBORIKO ………………………….................…….. RESPONDENT JUDGEMENT Date of Last Order: 14/5/2024 Date of Judgement: 30/05/2024 B. E. K. Mganga, J. Brief facts of this application are that, on 26th May 2023 Paul Mboriko Tarimo, the herein respondent, filed labour dispute No.CMA/DSM/ILA/293 before the Commission for Mediation and Arbitration(CMA) at Ilala against Dorman (T) Limited, the herein applicant. Being aware that he was out of time, applicant filed also the application for condonation. The said application for condonation was heard and determined by Hon. Mwangata Makawa, Mediator, who, on 29th December 2023, delivered a ruling granting condonation to the applicant. 1 Applicant was aggrieved by the said ruling hence this application for revision. In support of the Notice of Application, applicant filed the affidavit sworn by Laurent Anthony Chuwa, her principal officer. In the said affidavit, the deponent raised three issues namely:- (a) Whether or not the commission for mediation and arbitration, honourable Mwangata Makawa (Mediator) had jurisdiction to hear and deliver the impugned ruling. (b) Whether or not the honourable mediator considered the applicant’s submissions when delivering the ruling. (c) Whether or not it was proper for the commission for mediation and arbitration to grant condonation on the absence of good and sufficient grounds. Respondent oppose this application. During hearing of the application, Mr. George Amrose Shayo, learned Advocate, appeared and argued for and on behalf of the applicant while Mr. Janeth Kazimoto, learned Advocate, appeared and argued for and on behalf of the respondent. It was submitted by Mr. Shayo that, Mediator has no jurisdiction to entertain neither the applicant's preliminary objection nor the respondent's condonation application. He submitted further that, that is because, the jurisdiction of the Mediator pursuant to section 86(3) and (4) of the Employment and Labour Relations Act [CAP 366 R.E. 2019] is limited to 2 deciding the time, date and place of mediation hearing and to advise parties to the dispute so as to enable them reach amicable settlement. He cadded that, section 86(4) of Cap. 366 R.E. 2019 (supra) puts a limit within which the Mediator can exercise his powers by requiring the mediator to resolve the dispute within thirty days of referral or any longer period to which the parties agree in writing. He went on that, the powers of a Mediator are also provided for under rule 3(1), (2), (3) and (5), rule 5(l), (2) (a)(i), (ii), (iii), (iv), (b) and (c) of the Labour Institution (Mediation and Arbitration Guidelines) Rules G.N. 67 of 2007. Learned counsel submitted that, has powers to decide the manner in which mediation shall be conducted including powers to require further mediation meetings between the parties and issue summons and order production of a document if doing so may assist in resolving the dispute. He strongly submitted that, powers of the Mediator are limited to assisting the parties to resolve their disputes. Learned counsel strongly submitted that, in the application athand, the Mediator exercised his jurisdiction illegally as a Mediator but assuming powers not conferred to him by entertaining the respondent's core legal issues centred on time limitation by granting condonation application. To support his submissions that, the mediator has no power to 3 decide legal issues, learned counsel for the applicant cited the case of Ndovu Resources Limited vs. Thierry Murcia, Revision Application No. 371 of 2022, HC(unreported), Barclays Bank (T) Limited vs. Ayyam Matessa, Civil Appeal No. 481 of 2020, CAT(unreported) and Benjamin Lazaro Isseme vs. Yapi Merkezi Vc Sanayi Anonim Sirket, Revision Application No. 26 of 2023,HC(Unreported) and prayed the court to quash and set aside the CMA ruling and nullify CMA proceedings. Resisting the application on behalf of the respondent, Ms. Kazimoto, learned counsel submitted that, Mediator exercised the jurisdiction bestowed to him judiciously and within discretion of the powers and mandate of the Commission to grant the Respondent condonation. Learned counsel for the respondent submitted that, rule 12 , 13, 14 and 15 of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007 do not state that an application for condonation should be determined before or after mediation has started. She strongly submitted that, rule 15 of G.N No. 64 of 2007(supra) gives powers to the mediator to determine jurisdictional issues. She added that, time limitation is a jurisdictional issue and cited the case of Zephania O. Adina GPH Industries Ltd, Labour Revision No. 27 of 2020, HC, and Rui Wang vs. 4 Eminence Consulting (T) Ltd, Labour Revision 306 of 2020. In her view, mediator has jurisdiction to hear and determine an application for condonation. She submitted further that, section 86(3) and (4) of CAP 366 R.E 2019, rule 3(1),(2),(3) and (5), rule 5(I), (2)(a)(i), (ii), (iii), (iv), (b) and (c) of G.N 67 of 2007 (supra) do not oust powers of mediators to determine an application for condonation rather, it provides for what to be done by the mediator upon receipt of referral. Learned counsel for the respondent submitted further that, the above cited section should not be read in isolation as there are established rules which govern mediation and arbitration and designed to regulate the same. I have examined CMA record and considered submissions of the parties in this application and find that it is undisputed that the application for condonation was heard and determined by the mediator. it is true that limitation of time goes to the jurisdiction, which is why, i have opted to start with the 1st issue relating to jurisdiction. I have decided to do bearing in mind what was held by the Court of Appeal in the case of Commissioner General Tanzania Revenue Authority & Another vs Milambo Limited (Civil Appeal 62 of 2022) [2022] TZCA 348 that: - 5 “…From the above quoted excerpts, principally, in adjudication, the question of jurisdiction is a threshold question which must be addressed at the earliest opportunity in order to save time and costs and dire consequences of the proceedings being nullified at the later stage in case the objection is raised and sustained. Therefore, jurisdiction is a creature of statute and not the dislikes or likes of the parties or mere compelling situations…” The parties in this application have locked horns on whether the mediator has powers or not to hear and determine an application for condonation. It is my view that, in an application for condonation, the Mediator is called to exercise judicial discretion, which, in my view, is not his duty because the duty of the Mediator is to assist the parties to settle the dispute. The position that powers of the Mediator is to assist the parties to resolve the dispute is provided under section 86(4), (7) and (8) of the Employment and Labour Relations Act[ Cap. 366 R.E. 2019] and Rule 3(1) and (2) of the Labour Institutions (Mediation and Arbitration Guideline) Rules, GN. No.67 of 2007. More so, in an application for condonation, applicant must account for the delay as it was held in the case of Benedict Mumello vs Bank of Tanzania (Civil Appeal 12 of 2002) [2006] TZCA 12, Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396, Patrick John Butabile vs Bakresa Food Products Ltd (Civil Appeal 61 of 2019) 6 [2022] TZCA 224. In my view, that cannot fall in the domain of the mediator. In my view, hearing the parties on submissions in an application for condonation and delivering a ruling granting or refusing to grant condonation, cannot be a process of assisting the parties to amicably settle the dispute envisaged under the provisions of Rule 3(1)and (2) of GN. No. 67 of 2007 (supra). I have read Part II of GN. 67 of 2007 (supra) that relates to mediation process and the powers of the Mediator and find that, in the whole part, there is no rule giving powers to the Mediator to determine legal issues including but not limited to, an application for condonation. In my view, absence of such a rule, was intended to limit the powers and duties of the Mediator and confine the Mediator to the duties of assisting the parties to settle the dispute and not to determine legal issues that are the domain of the Arbitrator. In the case of Tanzania Cigarette Public Ltd Co. vs. Nancy Mathew Kombe (Rev. Appl 421 of 2022) [2023] TZHCLD 1138, this court held that, in an application for condonation, an applicant seeks CMA to extend a helping hand of jurisdiction otherwise, CMA will have no jurisdiction to determine the matter. The jurisdiction sought in an 7 application for condonation is not based on territorial, which, in my view, is an exception jurisdictional issue that can be determined by the Mediator under Rule 15 of the Labour Institutions(Mediation and Arbitrations)Rules, GN. No. 64 of 2007. I am of that opinion because, disputes must be filed in the territorial jurisdiction they arose. It is easy to decide territorial jurisdiction without being engaged in several legal issues unlike to the application for condonation. In my view, once the mediator finds that the dispute occurred within the jurisdiction, can proceed to mediate the parties.As pointed hereinabove, in hearing the application for condonation, the Mediator, restores jurisdiction that was taken away by limitation of time. In my view, restoration of jurisdiction to CMA does not fall in the powers of the Mediator namely to assist the parties to settle the dispute. In the case of Barclays Bank T. Limited vs AYYAM Matessa, Civil Appeal No. 481 of 2020 [2022] TZCA 189 held that the powers of the Mediator are limited. In Matessa’s case (supra) the Court of Appeal held inter-alia that:- “…Truly, under the ELRA the jurisdiction of a mediator as the title dictates, is to mediate, the process which does not include to dismiss and to decide a complaint. That would no doubt be a general rule. Under exceptional circumstances as it is in the provision under discussion, the 8 mediator is empowered to dismiss the complaint if the referring party fails to appear and decide the same if the party against whom the referral is made fails to appear.” (Emphasis supplied) For all said hereinabove, I hold as it was held in the case of Ndovu Resources Limited vs Thierry Murcia, Rev. Appl. No. 371 of 2022 , Kombe’s case (supra), Nelson Mwaikaja vs Gemshad Ismail & Usangu General Traders (Rev. Appl 382 of 2022) [0023] TZHCLD 1 and Gin Investment Ltd’’s case (supra) that the Mediator has no power to grant an application for condonation. I therefore, nullify CMA proceedings quashed and set aside the award arising therefrom. CMA record is hereby remitted to CMA so that the application for condonation can be heard by the arbitrator, if granted, then, the dispute be heard de novo by another arbitrator without delay. Dated in Dar es Salaam on this 30th May 2024. B. E. K. Mganga JUDGE 9 Judgment delivered on this 30th May 2024 in Chambers in the presence of George Shayo, Advocate for the Applicant and Paul Mboriko Tarimo, the Respondent. B. E. K. Mganga JUDGE 10