EXPRESS HOTEL LIMITED TA ONOMO HOTEL DAR ES SALAAM V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 20940 OF 2024 (Arising from Award issued on 19/4/2024 by Hon. William, R, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/456/2021/190/2021 at Kibaha) EXPRESS HOTEL LIMITED T/A ONOMO HOTEL DAR ES SALAAM ..…….……………….…..…..……………………. APPLICANT VERSUS NEEMA LUCAS FUNYENGA ……..……………….….………………….. RESPONDENT RULING Date of Last Order: 10/10/2024 Date of Ruling: 24/10/2024 B. E. K. Mganga, J. Brief facts of this application are, Neema Lucas Funyenga, the abovementioned respondent was an employee of Express Hotel T/a Onomo Hotel Dar es Salaam, the abovenamed applicant. On 26th October 2021, respondent filed Labour dispute No. CMA/DSM/ILA/456/2021/190/2021 before the Commission for Mediation and Arbitration(CMA) complaining that applicant terminated her employment unfairly. 19th April 2024, Hon. William R, Arbitrator, having heard evidence of the parties issued an award that termination was unfair and ordered the applicant to reinstate the respondent and pay TZS 16,351,923/= being remuneration from the date of termination to the date of the award. 1 Applicant was aggrieved with the said award hence she filed revision application No. 10318 of 2024. When the application was called on for hearing on 10th July 2024, the Court (Hon. Opiyo, J) prior to allowing the parties to argue the grounds raised by the applicant, asked the parties to address the court on competence of the application as she noted that the notice of application was signed by the advocate and not the party bringing the application. The court also noted that respondent filed the notice of preliminary objection. After hearing the parties, the court struck out Revision Application No. 10318 of 2018. After the said application was struck out, on 11th July 2024, applicant filed Miscellaneous Application No.16582 of 2024 seeking extension of time within which to file revision. On 20th August 2024, applicant was granted seven (7) days leave within which to file the intended revision. On 26th August 2024, applicant complied with this court’s order and filed this application. Upon being served with the application, respondent filed the notice of opposition and the counter affidavit together with the notice of preliminary objection with two grounds namely: - 1. That, this court by Hon. Opiyo J, in revision No. 10318 of 2024, having sustained the preliminary objection and ruled that the said first revision at the 2 time of filling the same, the applicant had not complied with the requirement of form No. CMA F.10 as provided under third schedule to the Employment and Labour Relations (General) Regulations, G.N. 47 of 2007 and that the said ruling thereof being intact to date, the instant revision is untenable in law and has no legal legs to stand. 2. That, the revision application at hand is unatenable in law for the applicant’s failure to comply with the requirement of form No. CMA F.10 as provided under third schedule to the Employment and Labour Relations (General) Regulations, G.N. 47 of 2007. When the application was called on for hearing, Ms. Faidha Rajabu Mshana, advocate entered appearance and argued for and on behalf of the applicant and Mr. Kilei Mwitasi, advocate appeared and argued for and on behalf of the respondent. Arguing in support of the 1st ground of preliminary objection, Mr. Mwitasi submitted that, this application is totally circumventing the decision of Hon. Opiyo J, in revision No. 10318 of 2024 in which applicant timely filed the said revision without filing the Notice of intention to seek revision (CMA F10) and the court sustained the preliminary objection and struck out the application. Counsel submitted further that, the effect of striking out the said application for want of CMA F10 was that applicant was supposed to file an application for extension of time within which to file the said CMA F10. He added that, applicant has not filed an application for extension of 3 time to file CMA F10. He therefore prayed that the application be struck out. Arguing in support of the 2nd ground of preliminary objection, Mr. Mwitasi submitted that, applicant has not filed CMA F10 at CMA as required by Regulation 34(1) of Regulation 47 of 2017. He added. That, applicant has not served the respondent with the said CMA F10. In short, counsel for the respondent submitted that, applicant did not comply with filing the said CMA F10 and did not serve respondent within 42 days. Mr. Mwitasi cited the case of Letshengo Bank (T) Ltd v. Salome E. Mwakaganda, Revision No. 322 of 2022, HC (unreported) to support his submissions that failure to file CMA F10 renders the application incompetent. He further referred the Court to case of Grumeti Reserve Limited v. Morice Akiri, Civil Appeal No. 334 of 2019, CAT (unreported) wherein the Court of Appeal held that failure to serve notice of appeal renders the appeal incompetent. He strongly submitted that, CMA F10 initiates revision. With those submissions, counsel for the respondent prayed the court to sustain the preliminary objection and struck out this application. Resisting the preliminary objection, Ms. Mshana, submitted that, the preliminary objections have no merit and prayed the same be overruled. 4 Ms. Mshana submitted that, revision application No. 10318 of 2024 was struck out because the notice of application was signed by applicant's advocate. She also submitted that, the issue of failure to file CMA F10 was not discussed. She strongly submitted that applicant filed CMA F10 on 22nd April 2024. In her submissions, counsel for the applicant conceded that respondent was not served with the said CMA F10. She further conceded that, the said CMA F10 is not in CMA record. Ms. Mshana further submitted that, CMA F10 was only intended to notify the CMA that the file is required to be sent before the High Court for Revision. She added that, the intention of the drafters to draft Rule 34(1) of GN. No. 47 of 2017 was to make sure that procedures are complied with. She implored the court that, for purposes of justice, the application be heard on merit. When probed by the court whether in dispensation of justice the court should overlook procedural issues, she readily conceded that, dispensation of justice does not do away compliance with procedural laws. With those submissions, she prayed the court to use its discretion and determine this application on merit. In rejoinder, Mr. Mwitasi maintained that the order of this court in 10318 of 2024 is clear that preliminary objection was sustained. He added 5 that, applicant did not serve the respondent with the said CMA F10 and that, the court cannot use discretion to ignore the law. I have considered rival submissions of the parties in respect of the preliminary objection that was raised by the respondent. I have examined the CMA record and find that there is no notice of intention to seek revision (CMA F10) that was filed by the applicant. That is contrary to submissions by counsel for the applicant that the said CMA F10 was filed at CMA on 22nd April 2024. Applicant was supposed to serve the said CMA F10 to the respondent, but she did not as it was conceded by Ms. Mshana, learned counsel. The reason for failure to serve the respondent was not disclosed. In my view, that is a proof that applicant did not file CMA F10 which is why, she failed to serve the respondent. The said CMA F10 reads: - “CMA F10 NOTICE OF INTENTION TO SEEK FOR REVISION OF AWARD (Made under Regulation 34(1 LABOUR DISPUTE NO………………………………….…………. BETWEEN ………………………………………………………………….……………APPLICANT AND ……………………………………………………………..…………….RESPONDENT TAKE NOTICE that the Applicant/Respondent being dissatisfied with the Commission’s award in the above-mentioned Labour Dispute issued on………by 6 Honourable……………………..DO HEREBY intend to seek Revision/Review to the High Court of Tanzania (Labour Division) against the said award. Please forward as expeditiously as possible certified copies of proceedings and award to the: High Court of Tanzania, (Labour Division) ………………..(place). Dated at …………this …………..day of ……………….. ……………. Applicant Presented for filing this………..day of ……….(year) ……………… Registry Clerk Copy: Respondent.” It is clear that, it was the intention of the drafters of the said CMA F10 that the other party must be served. As pointed shortly a while hereinabove, failure to serve the respondent with the said CMA F10, is a proof that applicant did not file it at CMA otherwise she should have given plausible explanation for that failure. Unfortunately, that explanation is wanting in this application. 7 It was submitted by counsel for the respondent that, Revision Application No.10318 of 2024 was struck out for want of CMA F10 after respondent has raised a preliminary objection. On the other hand, it was submitted on behalf of the applicant that, the issue of failure of the applicant to file CMA F10 was not discussed. I have carefully examined proceedings of this court in Revision Application No. 10318 of 2024 that is in the CMA record and find that, the nature of the preliminary objection that was raised by the respondent was not stated. Proceedings of this court in revision No. 10318 of 2024 dated 10th July 2024 reads: - “Mwitasi I have just been informed that the matter is for hearing, but there is no notice of opposition or counter affidavit of the respondent and we even served the other side, but we came to learn that it was not captured by the system. On the same day we filed the counter affidavit for the allocation for execution. We pray that we be allowed to upload in the system to make record correct. We pray the court to apply the provisions of rule 55(2) empowering the court to do anything to achieve the end of justice. Court: The parties’ counsels to address court on the competence of the application in relation to signing of the notice of application by the parties’ counsel instead of applicant’s principal officer. Mshana We pray for the application to be withdrawn with leave to refile. Mwitasi Hon. Judge, before you there is objection on the competence of the application, the party has no right to withdraw the matter as that will pre-empt the preliminary objection. I have also noted the court’s concern that the 8 application is signed by the advocate rather than the party bringing the application in terms of rule 24(2) of Labour Court Rules, GN. No. 106/2007. Therefore, the matter should be struck out rather than being withdrawn. ORDER: It is true that before me there is a notice of preliminary objection by the respondent, therefore the applicant cannot validly withdraw the application for that will preempt the objection. On top of that, the court also raised another objection suo motu in relation to signing of the notice of application which is found to be contrary to rule 24(2) of Labour Court Rules for being signed by someone who is not a party initiating the proceedings as required by the above rule. For that reasons the applicant cannot again withdraw the application, but it is the consequence of the preliminary objection that ensures; which is for the matter to be struck out for being incompetent as I hereby do.” As pointed out hereinabove and as quoted in the above court proceedings, the nature of the preliminary objection that was raised by the respondent in revision No. 10318 of 2024 was not disclosed as such, it cannot be said that, the said preliminary objection was relating to applicant’s failure to file CMA F10. Be as it may, as I have pointed hereinabove, applicant did not file CMA F10 at CMA prior to filing Revision application No. 10318 of 2024. This court has held in the case of Continental Reliable Clearing (T) Co. Ltd vs Robert Musa Mndeme (Revision Application No. 27230 of 2023) [2024] TZHCLD 22, Esmail Yahya Futaini vs Organia Co. Ltd (Revision Application No. 27667 of 2023) [2024] TZHCLD 24, A-One Products & Bottlers Ltd vs Cuthbert 9 C. Masalago (Miscellaneous Application No. 272 of 2023) [2023] TZHCLD 1506, Car & General Trading Ltd vs William Mbatilo (Revision Application No. 256 of 2023) [2024] TZHCLD 20 and Letshengo Bank (T) Ltd vs Salome E. Mwakigomba (Revision 322 of 2022) [2023] TZHCLD 1211 (29 March 2023) to mention a few, that it is mandatory for the applicant to file CMA F10 at CMA prior to filing the application for revision. After revision application No. 10318 of 2024 was struck out, on 11th July 2024, applicant filed Miscellaneous Application No.16582 of 2024 seeking extension of time within which to file revision. In the said application, applicant had only one prayer namely, extension of time within which to file revision. There was no prayer for extesnion of time within which to file the notice of intension to seek revision (CMA F10) out of time. By that time applicant was already out of time to file CMA F10 because this court has held that the said CMA F10 must be filed at CMA prior to expiry of 42 days available for the applicant to file revision. In Miscellaneous Application No.16582 of 2024 counsel for the respondent implored me to hold that applicant did not file CMA F10 at CMA and that the said application was filed in abuse of court process. In the said application, I refrained to discuss whether, applicant filed CMA F10 at 10 CMA before filing an application for revision before this court because, in the said application, the court was only called to consider whether, applicant adduced good grounds for time to be extended or not. In refraining to discuss that issue, I reasoned that, whether applicant filed the said CMA F10 or not, that will be an issue to be determined at the hearing of the intended revision. In fact, time has arrived now to decide that issue as I have done hereinabove after perusing the CMA record that applicant did not file CMA F10 at CMA prior to filing this application. Since it is mandatory to file CMA F10 prior to filing the application for revision and applicant did not file the same and since in Miscellaneous application No. 16582 of 2024 applicant did not apply for extesnion of time within to file CMA F10 and that, there is no order granting extension of time to applicant to file CMA F10, I find that the preliminary objections are merited. I therefore sustain the preliminary objections and consequently, strike out this application for being incompetent. Dated at Dar es salaam this 24th October 2024 B. E. K. Mganga JUDGE 11 Ruling delivered on this 24th October 2024 in Chambers in the presence Ms. Faidha Rajabu Mshana, Advocate for the Applicant and Santino Kimena, Advocate for the Respondent. B. E. K. Mganga JUDGE 12