etg logistics ltd vs kaushik pattani 2023 tzhcld 1206 14 february 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 325 OF 2022 (Arising from the decision of the Commission for Mediation and Arbitration at liaia in REF: CMA/DSM/ILA/958/19) BETWEEN ETG LOGISTICS LTD..................................................................... APPLICANT VERSUS KAUSHIK PATTANI....................................................................... RESPONDENT JUDGMENT S,M, MAGHIMBI, J: The respondent (employee) herein was employed by the applicant (employer) in the position of Head of Sales. He was terminated from employment, a termination which he termed to be unfair. Subsequent to the termination, he lodged a Labour Dispute No. CMA/DSM/ILA/958/19 ("the Dispute") at the Commission for Mediation and Arbitration for Ilala ("the CMA"). On what the arbitrator claimed to the employer's non-appearance to the CMA, he proceeded ex-parte of the applicant despite the fact that they had filed their reply to the dispute praying for the CMA to dismiss the dispute. The dispute was decided in favor of the respondent whereby the applicant herein/employer was ordered to pay the employee a total sum of Tshs 1 505,846,153/- being compensation of 12 months for unfair termination, on month salary in lieu of notice, salary for October ad November, 2019 and gratuity. The award was issued on 15th January, 2021. Sometimes in the same year 2021, the applicant lodged an application for extension of time so that they could challenge the ex-parte award. The CMA was convinced with their reasons for the delay and extended the time so that the applicant could lodge the said application. In September 2021, the CMA dismissed the applicant's application to set aside the ex-parte award for reasons that the applicant could not state his reasons as to why she could not attend hearing on the dates set by the CMA. From this point to the filing of this application, they have been a lot of drama and muscle fights between the two sides until it ended in the current application. The feud between the two revolves around the allegations of forgery whereby the applicant alleges never to have been served with the notice of hearing. As if that was not enough, the applicant has gone to the extent of denying to have lodging the application to set aside ex-parte decree and alleging that the officer alleged to have come from their office was fabricated one. Therefore aggrieved by the happening of events and having been summoned for the execution of the award of this court, the applicant has 2 lodged the current application under the provisions of Rule 24(1), 24(2) (a), (b), (c), (d), (e), (f), 24(3) (a), (b), (c), (d); 56(1) of the Labour Court Rules,2007, GN No.106 of 2007 and 94(1) (b)(i) of the Employment and Labour Relations Act, No.6 of 2004 as amended, moving the court for the following orders: (i) That this Honourable Court be pleased to call the CMA records in Labour Dispute No. CMA/DSM/ILA/958/19 and revise CMA decision of 14/09/2021 by Hon. N. Kiangi (Arbitrator) which purported to set aside the ex-parte decision of 15/01/2021. (ii) That this Honourable Court be pleased impeach and nullify the entire CMA proceedings in Labour Dispute No. CMA/DSM/ILA/958/19 as they were procured on fraud. (iii) Any other order(s) deems fit and just be granted by this Honourable Court. When the parties appeared before me on 29/11/2022 and after off record discussion, the applicant vacated the second prayer and amended the first prayer to appear as: "That this Honourable Court be pleased to call the CMA records in Labour Dispute No. CMA/DSM/ILA/958/19 and revise CMA decision of 14/09/2021 by Hon. N. Kiangi (Arbitrator)." 3 On his part, the respondent opposed the application praying that this court dismiss the application. The application was disposed by way of written submissions. Having gone through the submissions of the parties, submissions which will be taken on board while determining the issues before me. the issues as framed by the applicant are: 1. Whether or not the applicant was summoned and represented at the CMA. 2. Whether or not the applicant applied to set aside the ex-parte award of 15/01/2021. 3. Whether or not the applicant was notified of the hearing fate which after his failure to appear the CMA proceeded ex-parte. Having considered the issues and the parties' submissions, the dispute before me revolves around one crucial issue, whether the applicant through the applicant's officer (Deodadit Michael) was involved in any of the proceedings of the CMA from the dispute to the subsequent applications to set aside ex-parte order. According to Mr. Kitare's submissions, on 01/03/2022 the applicant received a copy of the Labour Court Order from the Branch Manager, 4 Diamond Trust Bank, Mbagala Branch, restraining him to remit money from the applicant's bank account. After receiving the Court Order, the applicant instructed his firm to peruse the Labour Court file where they discovered that the respondent instituted an application for execution known as Execution No. 22 of 2022 (Annexure KCA-3) which was prompted by the CMA Award in the Labour Dispute and that the award ordered the Applicant to pay the respondent Tshs. 505,846,153/= for unfair termination. The records further showed that on 10/06/2021 the applicant applied to set aside the ex-parte award (Annexure KCA-IIB) but on 14/09/2021 the application was dismissed (Annexure KCA-7). Mr. Kitare submitted further that upon approaching his client, they denied to have known and participated in whatever manner in the entire proceedings at CMA and at this court. Accordingly, the applicant took steps to report the matter at police where the incidents were registered as number CD/RB/1021/2022 and CD/RB/1022/2022 and thereafter personal representatives of the respondents were summoned up and interrogated at police and thereafter they were charged for the offence of Forgery of Signatures and Rubber Stamp. To avoid interference in court proceedings, the investigation process was suspended until this case is finally determined. The applicant eventually 5 applied to this court for an order of extension of time which after it was granted, the applicant instituted the present application to revise the CMA decision of 14/09/2021. He submitted further that according to the above impugned decision, the applicant was represented by Mr. Deodat Michael, Human Resource Manager, and he is the one who filed the application which was dismissed on 14/09/2021. However, he argued, Deodat Michael denies to have known and participated at CMA proceedings and during execution at this court. It was Mr. Kitare's submission that that applicant's non-appearance at CMA proceedings and the impugned decision were obtained by fraud, he is faced with an enigma of challenging this decision as if he was aware and participated at CMA proceedings. Accordingly, the applicant submits that the reason for dismissing the application to set aside the ex-parte award was not sound as stated in the succeeding paragraphs. Mr. Kitare submitted further that they were not aware and did not participate at CMA proceedings and that the signatures of the applicant's personnel who purported to receive the summonses and on various documents and the applicant's rubber stamp were forged. Further, the applicant's personnel who purported to appear at CMA were personated. 6 Citing Section 46 of the Evidence Act [Cap. 6, R.E. 2019] which provides that: Any party to a suit or other proceedings may show that any judgment, order or decree which is relevant under sections 42, 43 or 44, and which has been proved by the adverse party ... was obtained by fraud... Mr. Kitare submitted that in order to prove that the impugned CMA decision of 14/09/2021 and the ex-parte award of 15/01/2021 were obtained by fraud, the applicant filed the affidavits sworn by the applicant's personnel namely, Deodat Michael, Meheroon Kassu, and Maheshkumar Rao Patel where the alleged forged signatures on the documents could be compared with their real signatures as they appear on their identification documents. Starting with the documents concerning Deodat Michael, he elaborated that the alleged documents are listed under paragraph 10 of his affidavit which their alleged forged signatures could be compared with his real signatures as they appear on his identification documents being, Citizen Identity Card (KCA-12B), Driving Licence (13B), Passport (KCA-13B), and his Letter of Appointment KCA-15B). The applicant's rubber stamp can be compared with the rubber stamp on the applicant's letter of 12/03/2018 (KCA-2B). Further 7 that Meheroon Kassu's forged signatures appears on the documents which are listed under paragraph 8 of his affidavit. These signatures could be compared with her real signatures as they appear on her identification documents namely, Citizen Identity Card. (Annexure KCA-6A), Driving Licence. (Annexure KCA-7A) and her Passport (Annexure KCA-8A). Further, in Meheroon's affidavit, Mr. Kitare submitted that under paragraph 11 and 12 of the affidavit about forgery of Vishal Kashyap's signatures on the summons purported to be served on the applicant, Vishal did not swear his own affidavit because by the time of preparation and filing of the present application his employment contract had expired and he had already left to India. He then submitted that in civil matters (labour matters inclusive) a fact is said to be proved when its existence is established by a preponderance of probability. Accordingly, the court does not need forensic expert to prove the forgery as in the present case, the preponderance of probability will be established after the comparison of the forged signatures of the respective person in comparison with their real signatures on their identification documents. The court can invoke Rule 55(1) of the Labour Court Rules, 2007 (G.N. 106 of 2007) to ask the officials whose signatures are alleged 8 were forged to produce their respective original identification documents for comparison with the forged signatures. Further, the applicant's forged rubber stamps appearing on the summonses could be compared with a rubber stamp stamped on the applicant's letter of 12/03/2018 (Annexure KCA-2B). He then concluded that even in the absence of fraud, yet the applicant has a good reason to successfully apply for the order of revising the decision of 14/09/2021 due to the fact that the ex-parte award neither states if the applicant was present when the hearing dates were scheduled, nor the applicant was served with a summons to appear for hearing. This is the sufficient reason to revise the decision. Further that the applicant has proved that the impugned decision was obtained fraudulently and the remedy for the decision which was obtained fraudulently is to nullify the entire proceedings related to the decision and to let the parties be heard inter­ parties. To this court's surprise, Mr. Kitare went on to argue on the validity of the ruling dismissing application to set aside an ex-parte award while at the same time he alleges that they did not file any application at the CMA. The 9 submissions are self-defeating his own submissions and if I am to entertain them, I will be but wasting this court's time. In reply, the respondent insisted that the applicant's representative appeared and made the subsequent application and that the current application is an afterthought. Having considered the submissions of the parties, I have based my decision on one important thing, a party's right to be heard. This will be determined in line with the chain of events that have led to the current application before me. Much as I admit that I am not a handwriting expert, but any prudent man can see that the purported signature of the alleged Deodadit Michael as it appears in different documents of the CMA vary significantly. For instance, the signature that appears in the document titled "Maelezo ya awali" is totally different from the purported signature of the same alleged Deodath Michael as found in CMA Form No. 6 a certificate of settlement/non-settlement of the dispute. This alone is sufficient to make me be inclined to what the applicant alleges. Therefore, prudence would call that if the applicant alleges that the ex-parte award was obtained fraudulently, and the significance variation in signatures is observed, then parties should go back and have their dispute determined inter-parties. 10 On the above findings, I hereby find that sufficient reasons are adduced to allow this application, it is therefore allowed. The ex-parte award of the CMA is hereby set aside. I further order the parties go back to the CMA so that they have can have their dispute determined inter-parties. Since this is a 2021 dispute, I urge the CMA to fast track the matter and dispose the dispute expeditiously. It is so ordered. Dated at Dar-es-salaam this 14th day of February, 2023. ii