CIV

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: KOROSSO, J.A., KENTE, J.A., And MGONYA, J.A.^ CIVIL APPEAL NO. 307 OF 2022 ERIC ZABLON.............................................................................APPELLANT VERSUS OFFGRID ELECTRIC TANZANIA LTD .......................................RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania (Labour Division) at Mbeya) (MambL_U Dated the 08th day of September, 2021 in Revision Application No. 14 of 2020 JUDGMENT OF THE COURT 19th & 27th February, 2025 KOROSSO, JA,: In this appeal, the appellant, Eric Zablon, faults the Judgment and Decree of the High Court of Tanzania (Labour Division) in Revision Application No. 02 of 2021 dated 8/9/2021, which nullified the proceedings and decision of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/MBY/64/2019/AR/59. Addedly, the High Court ordered for the case to be remitted to the CMA for determination afresh before a different arbitrator in line with the applicable law if the parties were inclined to proceed, thus. The backdrop giving rise to this appeal goes thus: the appellant was employed by the respondent holding the post of Territory Warehouse Manager from 01/08/2016 on a contract basis for an unspecified term. On 30/4/2019, the respondent notified the employees that the Company was going to be restructured and would retrench some employees to reduce the running costs because it was facing various challenges, including the rise of costs of sale and reduction in sales. By 10/05/2020, the process of entrenchment was completed, and the appellant was among the employees who were retrenched. Before the retrenchment process was finalized, the appellant referred the matter to CMA seeking relief on claims for unfair termination. At the CMA, mediation was unsuccessful; hence, it proceeded to arbitration, where it was held that the appellant's termination was procedurally unfair. The Award granted to the appellant was for the respondent to pay the respondent a total sum of TShs. 35,361,597/= for remuneration for work done; annual leave; one month's salary in lieu of notice; severance pay; transport to the place of domicile; personal effects; compensation for unfair termination; and certificate of service. The respondent was aggrieved and filed an application for revision to the High Court (Labour Division) as expounded earlier. Upon consideration of the evidence and submission presented before it, the High Court determined that the CMA failed to follow the legal principles governing such disputes to render the proceedings and judgment incompetent. He, therefore, nullified and quashed the CMA proceedings and decision and ordered the matter be remitted to the CMA to be determined afresh by a different arbitrator. Aggrieved, the appellant lodged a memorandum of appeal with four grounds. However, on the day of hearing the appeal, the learned counsel for the appellant abandoned the first and second grounds of appeal and preferred to remain with only two grounds, the third and fourth grounds which state as follows: 1. The High Court erred in law and fact in nullifying and quashing the proceedings and the Award of the CMA without justification(s) and contrary to the evidence on record. 2. The High Court erred in law and fact in ordering and directing that the matter be remitted to the CMA to be determined afresh. On the day we convened to hear the appeal, Mr. Benedict Sahwi, learned counsel, entered appearance for the appellant, whereas the respondent enjoyed the service of Mr. Kamru Msonde, learned counsel. Before the hearing of the appeal proceeded in earnest, with the leave of the Court, the counsel for the parties agreed that Mr. Msonde prayed to submit first since he was essentially not opposing the appeal conceding to the remaining two grounds of appeal, which he contended carried the appeal. Mr. Msonde informed the Court that the parties have agreed that the Court address two issues arising from the grounds of appeal before the Court. One, whether the High Court correctly nullified the proceedings and award of the CMA for failure to evaluate evidence; and two, what should be the way forward. Expounding on issue number one, Mr. Msonde submitted that the reason for conceding the two grounds of appeal is because the approach taken by the High Court Judge was improper under the circumstances. He contended that having determined that the Arbitrator at the CMA did not properly analyse evidence before it, the proper remedy for the High Court, in revision, should have been to exercise its wider jurisdiction on such matters within the boundaries of the law and proceeded to re­ evaluate and re-assess the evidence afresh, in terms of section 91(2) and (4) of the Employment and Labour Relations Act, Cap 366 (the ELRA). The learned counsel further stated that the enabling provision for the impugned application before the High Court was section 91(1) of ELRA, and thus, notwithstanding that the provision governs a process of revision, the High Court is mandated to go beyond revisionary proceedings and in the interest of justice impute therefrom some appellate functions under section 91(4) of ELRA. He contended that in exercising its revisional powers, the practice has been for the High Court to recapitulate and evaluate evidence. According to the learned counsel, the High Court failed to take into consideration the importance of considering whether ordering a fresh trial would be prejudicial to the parties or not. He argued that restarting the case afresh in the CMA is prejudicial to the respondent and the appellant, particularly because the High Court had the power to re-evaluate the evidence and proceed to determine whether an award was warranted or not but refrained. Regarding issue number two, Mr Msonde argued that as a second court in the process of determination of the respondent's grievances, the Court cannot step into the shoes of the CMA since the High Court failed to do so. He thus prayed for us to invoke our revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap 141 (the AJA), to nullify the decision of the High Court and all the consequential orders, and then order the application for revision filed in the High Court be conducted and proper evaluation of evidence be done, and the application decided accordingly. On his part, Mr. Sahwi informed us that he was subscribing to the submission by the counsel for the respondent. He argued that what the High Court did contravenes the law. He intimated to us that the prayers advanced by his colleague would be beneficial to both parties. He emphasized for us to invoke section 4(2) of AJA to nullify the HCT proceedings and decision and order remitting the case filed back to the High Court, preferably before another Honorable Judge, so that the application for revision be heard and determined properly. He prayed that we order for the expected rehearing to be expedited. Considering the submissions from the counsel for the parties and drawn non-contested issues for consideration before us for determination, we now move to consider whether the High Court's nullification of the CMA proceedings and award for failure to evaluate and assess the evidence was proper. Notably, the application for revision before the High Court was filed under sections 91(1) 9a), 91(2)(b) and (c), 94(l)(b)(i) of the ELRA read together with Rule 24(1), 24(2)(a)-(e) and 24(3)(a)-(d), 28(l)(c), (d), (e) of the Labour Court Rules, 2007, GN No. 106 of 2007 (the Labour Court Rules). Having considered the record of the application, before addressing the issue of the fairness of the appellant's termination, the High Court Judge ventured into determining whether the arbitrator had considered the evidence of both parties, evaluated the evidence before him and made his decision with reason. He then proceeded to hold that the arbitrator failed to properly analyze, assess and evaluate the evidence on record to enable him to arrive at a just decision. On page 308 of the record, the learned Judge of the High Court states: "In my considered view failure to consider and evaluate the evidence adduced by the applicant and failure to reason for his decision was fatal and bad in law" The observation reproduced above led the High Court Judge to nullify the proceedings and decision and order it to be reheard afresh before another arbitrator. We are aware of the fact that what was before the High Court was an application for revision, but as alluded by the learned counsel for the parties, the envisaged revision is wider in context than the provisions related to other proceedings for revision in other courts. Section 91(4) of ELRA states: " 91(4) Where the award is set aside, the Labour Court may— (a) determine the dispute in the manner it considers appropriate; (b) make any order it considers appropriate about the procedures to be followed to determine the dispute " The above provision provides a wider leeway for the Labour Court in the determination of applications before it. Therefore, being the first court after the CMA, we agree with the learned counsel that, after holding that there was an irregularity upon failure of the CMA to properly reassess and evaluate the evidence before it, justice demands that, instead of nullifying the proceedings and remitting the file for re­ hearing, the High Court should have re-evaluated and reassessed the evidence. We are not alone in such finding. In the case of Michael Mahende v. Versus Shell Exploration and Production (T) Limited, Civil Appeal No. 24 of 2021 (unreported), the Court held: "As to the 3rd and 5th grounds, we wish to state that, it was the legal duty o f the High Court to re-evaluate the evidence adduced in the CMA In the event, the appeal is allowed. We nullify and quash the proceedings, and set aside the judgment and the orders of the High Court. Let the case file be remitted to the High Court so that the Application for Revision No. 14 of 2020 be heard afresh before a different Judge. DATED at MBEYA this 27th day of February, 2025. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL The Judgment delivered this 27th day of February, 2025 in the presence of Mr. Kamru Msonde, learned counsel for the Respondent and also holding brief of Mr. Benedict Sahwi for the Appellant through virtual court, is hereby certified as a true copy of the original.