ELTON ELISHA NYAMTOGOTA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 16923 OF 2024 (Arising from Ruling issued on 20th February 2024 by Hon. Kazimoto, A. Mediator in Labour Dispute No. CMA/DSM/TMK/152/2023 at Temeke) ELTON ELISHA NYAMTOGOTA ……………..…..……….. APPLICANT VERSUS COMPLEX NURSERY & PRIMARY SCHOOL ……...... RESPONDENT JUDGMENT Date of Last Order: 26/9/2024 Date of Judgment: 17/10/2024 B.E.K. Mganga, J. It is undisputed facts by the parties that, in March 2017, Complex Nursery & Primary School, the abovenamed respondent, employed Elton Elisha Nyamtogota, the abovenamed applicant as a teacher. It happened that respondent terminated employment contract of the applicant. Aggrieved with the said termination, on 17th July 2023, applicant filed Labour dispute No. CMA/DSM/TMK/152/2023 before the Commission for Mediation and Arbitration (CMA) at Temeke. Being out of time, applicant also filed the application for condonation. Respondent filed both the 1 Notice of Opposition and the counter affidavit resisting the application for condonation. On 20th February 2024, Hon. Kazimoto, A, Mediator, having heard submissions of the parties and considered their evidence both in the affidavit and the counter affidavit, delivered a ruling dismissing the application for condonation. Applicant was aggrieved with the said ruling hence this application for revision. In support of the Notice of Application, applicant filed his affidavit in which he raised three issues namely: - 1. Whether the Hon. Mediator was right to reject the adduced reasons for the delay consequently rejecting the application for condonation. 2. Whether the Hon. Mediator misused the powers granted to her by the law by failure to take judicial notice of the rulings alleged to have been not attached but fully cited in the affidavit of the Applicant sworn in support for the application for condonation and delivered by the same Commission for Mediation and Arbitration (CMA). 3. Whether the Mediator has jurisdiction to entertain and determine an application for condonation. Respondent resisted this application by filing both the Notice of opposition and the counter affidavit sworn by Denis Mdee, her director. 2 When the application was called on for orders, parties prayed to argue it by way of written submissions. By consent of the parties, I issued the order to that effect. In compliance with the court order to dispose this application by way of written submissions, applicant enjoyed the service of Mr. Chacha Mwita, learned advocate while respondent enjoyed the service of Mr. Gilbert N. Mushi, learned advocate. Arguing in support of the application, Mr. Mwita submitted that, pursuant to section 86(3) and (4) of the Employment and Labour Relations Act [CAP 366 R.E. 2019], jurisdiction of the Mediator is limited to deciding the time, date and place of mediation hearing and to advise parties to the dispute so as to enable them to reach amicable settlement. He added that, section 86(4) of Cap. 366 R.E. 2019(supra) puts a limit within which the Mediator can exercise his powers by requiring him or her to resolve the dispute within thirty days of referral or any longer period to which the parties agree in writing. He went on that, powers of the 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, GN. No. 67 of 2007. 3 Mr. Mwita also submitted that, powers of the Mediator are limited to assisting the parties to resolve their disputes. He further submitted that, in the application at hand, Hon. Kazimoto, mediator, exercised his jurisdiction illegally as a Mediator, by assuming powers not conferred to him by entertaining and determined the application for condonation. To support his submissions that mediators have no jurisdiction to determine an application for condonation. Mr. Mwita cited the case of Tanzania Cigarette Public Ltd Co. vs Nancy Mathew Kombe (Rev. Appl 421 of 2022) [2023] TZHCLD 1138, Nelson Mwaikaja vs Gemshad Ismail & Usangu General Traders (Rev. Appl 382 of 2022) [0023] TZHCLD 1 to support his submissions. He added that, Hon. Kazimoto, Mediator, had the duties of assisting the parties to settle the dispute and not to determine legal issues that are in the domain of the Arbitrator. With those submissions, counsel for the applicant prayed the court to revise and quash the ruling that dismissed the application for condonation that was filed by the aplicant and allow the dispute to be heard on merit. Resisting the application, Mr. Mushi submitted that, there are two school of thoughts relating to powers of mediators to hear and determine an application for condonation. He submitted further that, 4 one of those schools of thought is that, mediators have no power to determine an application for condonation and that, the cases cited on behalf of the applicant are in that support. He went on that, the other school of thought is that, mediators have powers to determine application for condonation. He cited the case of Rui Wang vs Eminence Consulting (T) Ltd, Revision No. 306 of 2022 and Tanpack Tissues Limited vs Alfred Mbussa, Revision No. 648 of 2024 to support the position that mediators have jurisdiction to determine applications for condonation. With those two school of thought on powers of the mediator, Mr. Mushi prayed the court to put on hold all applications challenging the powers of mediators to determine applications for condonation until when the Court of Appeal will give its clear decision to avoid further conflicting decisions. He submitted further that, lack of judicial direction by the Court of Appeal on this matter, creates uncertainity and may lead to incomsistence undermining integrity of the Court and infringe rights of the litigants. In rejoinder written submission, counsel for the applicant termed the invitation by counsel for the respondent the court to suspend all applications pertaining to powers of the mediator until such time the Court of Appeal provides clarity direction or position as the eighth (8) 5 wonder of the world in addition to the seven (7) wondeers he is aware of. Mr. Mwita also submitted that, that invitation does not go in line with the objectives of the Employment and Labour Relations Act,[cap. 366 R.E. 2019] provided for under section 3(a) of the said Act namely, promotion of economic development through economic productivity and social justice. He strongly submitted that, economic development cannot be promoted by allowing labour disputes to remain unresolved for an undue long period because that will keep both the employer and employee tied up in dispute instead of engaging in production. He added that, the said prayer is intended to defeat the objectives of labour legislations of resolving labour disputes expeditiously. I have examined the CMA record particularly, evidence of the parties both in the affidavit in support of the application for condonation and the counter affidavit that were filed by the parties at CMA and considered rival submissions in this application. It is undisputed that, the ruling that gave rise to this application was delivered by the mediator. I should point out that, at CMA, none of the parties raised the issue as to whether the mediator who heard the application for condonation had power or not. Ordinarily, matters or issues not raised at the lower court cannot be entertained at appellate or revsion stage as it was held in the 6 case of Kipara Hamisi Misagaa@ Bigi vs Republic (Criminal Appeal No 191 of 2016) [2018] TZCA 494 (10 May 2018) and Jasson Samson Rweikiza vs Novatus Rwechungura Nkwama (Civil Appeal 305 of 2020) [2021] TZCA 699 (29 November 2021) to mention but a few. That being the position of the law, I was not supposed to determine this issue. But, the issue whether mediators have powers to determine application for condonation or not raised by the applicant in the application goes to jurisdiction of the mediator. It is well settled principle of law in our jurisdiction that, issues relating to jurisdiction can be raised at any stage including appeal stage. See the case of M/s Tanzania - China Friendship vs Our Lady of The Usambara Sisters (Civil Appeal 84 of 2002) [2005] TZCA 104 (19 October 2005), Semeni Issa vs Republic (Criminal Appeal No. 156 of 2019) [2023] TZCA 119 (17 March 2023) and Isaya Linus Chengula vs Frank Nyika (Civil Application No. 487 of 2020) [2022] TZCA 167 (31 March 2022). With that settled position of the law in my mind, I will determine the issue raised by the applicant namely whether the mediator had jurisdiction to determine the application for condonation or not. 7 It was submitted by counsel for the applicant that, mediators have no jurisdiction to deterimine applications for condation because their duty is to help the parties to reach amicable settlement of the dispute. On the the other hand, it was submitted by counsel for the respondent that, mediators have that jurisdiction. Both counsel cited decisions of this court to support their submissions. I have read the cited cases and find that, they are conflicting as correctly submitted by counsel for the respondent. It was submitted by Mr. Mushi on behalf of the respondent that, I should suspend determination of this application pending clear guidence of the Court of Appeal as to whether, mediators have powers to determine applications for condonation or not. It was equally correctly submitted by Mr. Mushi on behlaf of the respondent that, conflicting decisions on powers of mediators to determine applications for condonation leads to incomsistence and may undermining integrity of the Court and infringe rights of the litigants. I agree with that submission because conflict decisions causes the law to uncertain which, in my view, is unhealthy in administration of justice. The invitation to halt determination of this application made by counsel for the respondent was strong strongly resisted by counsel for 8 the applicant. I unreservedly, agree with submissions by counsel for the applicant and reject the prayer to halt determination of this application for varied reasons. One; halting this application will not be in line with the spirit of section 3(a) of cap. 366 R.E 2019(supra) namely, promotion of economic development, economic efficiency, productivity and social justice. As it was correctly submitted by counsel for the applicant, halting this application for unknown period will cause the disputes to remain unresolved for an undue long period and keep both the respondent and applicant tied up with legal issues instead of engaging in production. Two; counsel for the respondent did not provide any case that is pending before the Court of Appeal in which the issue relating to powers of the mediator to determine an application for condonation will be resolved. From where I am standing, this Court cannot adjourn the application at hand to await determination of a none existing case. Three, assuming that there is a pending case before the Court of Appeal, of which there is no proof, counsel did not provide evidence that he same relates to the parties in the application at hand. That being the position, the parties to the pending case before the Court of Appeal, if any, may choose not to proceed with hearing. If that happens, the parties in the application at hand will have no refuge. It is my further view that, the inviation by Mr. Mushi would have been valid had there 9 been a pending matter before the Court of Appeal involving the parties in this application. That said, I will proceed to determine the issue whether mediators have powers to determine applicationf for condonation or not. From where I am standing, I take the position and case laws cited by counsel for the applicant that mediators have no power to determine applications for condonation. I have chosen that position not because of disrespect to the other position, or because I am fond of it, rather, because, it is the position, I believe, is supported by the decision of the Court of Appeal in the case of Barclays Bank T. Limited vs Ayyam Matessa (Civil Appeal No. 481 of 2020) [2022] TZCA 189 (12 April 2022). 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 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... We think, interpretation of the provision in question to mean that the mediator may arbitrate and award the reliefs created by the above provisions as he did, would amount to creating jurisdiction to the mediator which is implicitly excluded under the above provision.” (Emphasis is mine) 10 Guided by the above cited Court of Appeal decision, I hold that, Ho. Kazimot, Mediator, had no jurisdiction to hear, determine and dismiss the application for condonation that was filed by the applicant. Since the decision was reached without jurisdiction, the same is a nullity. For the foregoing, I hereby nullify CmA proceedings, quash and set aside the ruling arising therefrom. I hereby direct the parties to back to Cma so that the application for condonation can be heard and determined by the arbitrator. Dated at Dar es Salaam on this 17th October 2024 B. E. K. Mganga JUDGE Judgment delivered on this 17th October 2024 in Chambers in the presence of Chacha Mwita, Advocate of the Applicant and Ceasor Kabissa, Advocate holding brief of Gilbert Mushi, Advocate for the Respondent. B. E. K. Mganga JUDGE 11