20130801 TZHC Arusha2

IN THE HIGH COURT OF TANZANIA I I. LABOUR DllVISION AT ARUSHA I I LABOUR REVISION NO.38 OF 2013 . I ELIAS MUGASA & 7 OTHERS ..... ~ .................. JAPPLICANTS I VERSUS I I, SINGITA GRUMET! RESERVE ....................... RESPONDENT (Original/ CMA/ARS/MED/101/20111) I JUDGEMENT 24/7/2013 &1/8/2013 Aboud, J The application for revision is ma~e under s ction 91 (1) (a) 1 I of the Employment and Labour R~'lations Act, No.6 of 2004 and i I• I Rules 24 (1), (2), (3) and 28 (1) of the Labdur Court Rules, GN.106 of 2007. The applicant was aggrieved by ithe Commission for Mediation and · Arbitration (CMA) decision in . CMJ:/ARS/MED/101/2011 made on 15/7/2011 'that it has no territorial jurisdiction to arbitrate the dispute hence this I application. t: . /;/ /_f ,.,·- '.•/~ I // }/ , ,. Hearing of the application proceeded e~~parte as the I respondent failed to file the counter affidavit as ordered by the court. Mr. Qamara personally represented the applicant and arguing the application he submitted that the applicants who appear at the court were employees of the respbndent, Singita Grumeti Reserve. Their employment was terminated while working at the respondent's work place at Muguni Serengeti. ' He said the applicants were recruited in Arusha at the office of the respondent and after termination of their employment were repatriated back to Arusha. On the basis of this fact Mr. Qamara argued the court to consider that, Arusha is where the I dispute should be arbitrated as there is no office of CMA at Muguni Serengeti, and the nearest CMA is that of Musoma. He further submitted that the act of the respondent I ( employer) to repatriate the applicants to Arusha is the only reason that they should complain at CMA in Arusha. He supported his argument with the decision in Kwila Peter Nkwama vs. Manager Marine Services CO LTD, Revisidn No.229 of 2008, HC Labour Division at l\lwanza {unreported), where the court decided that determination of cause of action depends on an ascertained factual matter .both question! of where the applicants employment was terminated and whether the applicant 2 •I I,''/ ('r"' .. fl / has been transferred. These are points of contentious on the issue and could not be determined by way of preliminary 1 objection. That is not a pure point of law. Without labouring much on this point of contention and with due respect to Mr. Qamara he just wanted to misdirect this court as the authority he cited was revisited and the decision varied by the same Hon, Rweyemamu, J, where she decided that the law is I very clear on the issue that a dispute shall be mediated or arbitrated where the cause of action arose as per Rule 22 (1) of the Labor Institution (Mediation and Arbitration) GN.64 of 2007. Rule 22 (1) of GN.64 of 2007 was made by the CMA under 1 the powers conferred to it by section 15 (1) (e) (ii) and (iii) of the Labour Institution Act, No. 7 of 2004 which provides that; i I • ')1 dispute shall be mediated or arbitrated by the Commission at its office having responsibility for the area in wh~ch the cause of action arose unless the Commission directs otherwise." In view of the above discussion, it is cristal clear that the cause of action arose in Muguni Serengeti which is in Mara Region. Therefore the applicant dispute. was to be mediated or 3 I . arbitrated by Musoma CMA which is the office of the (;MA having responsibility for the respective are~ in which the. cause of action arose unless the CMA would have directed to be arbitrated in Arusha as the applicant would wish,to be. I I However, before I conclude I would say that I fully agree that the law puts a burden to affected employeies in the above discussed aspect as they have . to go back to where their ! employment was terminated regardless of how far it is and whether the affected employees are financially ca pable to go back 1 to such territorial jurisdiction for mediation and arbitration. But I the fact that the position of the law as for now stands, I cannot 1 change that, and the general gobd of the co~munity requires that even a hard cash should not be allowed to disturb the law. The rule must be 'enforced even at risk of hardship to a particular party. Therefore my hands are tled and my dluty as a judicial officer, a judge is to comply with the provisions of the law as N.H I I CHAN, DPCM formally one of the Judges of the Court of Appeal of Malaysia in his book Judging tHe judges, 20G>7, quoting Lord . I ' ., Denning in his book, What Next in Law, p. 319. He said:- "... Every law enac~ed by Parliament I' must be obeyed th the letter.I No matter how unrea$onable or unjust 4 it may be, neverlheless, the judges • I! . j, have no option they must apply the statute as it stands{~ In the same book, CHAN quoted Lord Derlin i~ the Judges at I page 4, said that:- "If a judge leaves the law and ! I makes his own dec~sions, even ff in substance they are just, he loses) the I protection of the laW and sacrifices 1 the appearance . ot imparti!lity which is given by adherence to: the ! I law. He expresses himself personally to the dissatisfied litiJant I and exposes himself to criticism. I ' I But if the stroke is: inflicted by! the law, it leaves no sense of individual i i k ,. . t,t' t:. injustices; the losing party is not a victim who has been singled oJ; it I I is the same for ev~ry1Jody, he says. And how many a beteated litibant has salved his wounds with the thought that the law is an ass" 5 I I In the result a proper place f r the applicants to refer their 1 dispute in this regard is CM~ Mu~bma which is within the area where the dispute arose, that is MJguni Serengeti. Therefore this application is dismissed accordinglyJ I I.D.A~OUD 'J JUDGE f 1/8/i2013 6 .J-.,,_ r~ ~~- ',/ ... : ,;' j Date: 1/8/2013 y • Coram: Hon. I.D.Aboud,J Applicant: For Applicant: Mr. Qamara Respondent: For Respondent: CC: J.Kalolo Order: Judgement delivered on J/8/2013 in th~ presence of Mr. Qamara for the Applicant and fuoth the Respondent and his Advocate are absent. I I.D.Aboud · -- i JUDGE I 1/8/2@13 I i 7