flomi hotel limited vs emmanuel sylvester manga and another 2022 tzhc 15706 30 december 2022

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

MOROGORO DISTRICT REGISTRY

AT MQROGORO LABOUR REVISION CASE NO.01 OF 2022 (Arising from Labour Dispute No. CMA/MOR/185/2020; Deiivered on the l(f^ day of December, 2021; Before Kayugwa-Arbitrator) FLOMI HOTEL LIMITED - - APPLICANT

VERSUS

EMMANUEL SYLVESTER MANGA RESPONDENT WARREN G. MBWAMBO - 2^° RESPONDENT

RULING 30^ December,2022 CHABA,J. The applicBnt, Flomi Hotal Limited filed the instant application before this court seeking among other reliefs, revision of the decision of the Arbitral Award of the Commission for Mediation and Arbitration (the CMA) at Morogoro in Labour Dispute No. CMA/MOR/185/2020 delivered on the 10^^ day of December, 2021 by Kayugwa (Arbitrator). The application had been channeled in this court through the chamber summons supported by an affidavit deponed by Mr. Andrew Singine, the applicant's principal officer. The chamber summons was made under section 91 (1)(a) and (b), section 91 (2)(b), and section 94 (1) (b)(i) of the Employment and Labour Relation Act[Cap. 366 R. E, 2019] read together with Rules 24(1), 24(2),(a),(b),(c),(d),(e)and (0,24(3),(a)(^ Page 1 of 9 (c) and (d), 24(1)(c), 28(l),(c),(d)and (e)of the Labour Court Rules of 2007; GN. No. 106 of 2007 . The applicant also annexed a Notice of Application for Revision in compliance with the Employment and Labour Relations Act(Supra)and Labour Court Rules. On 18^ March, 2022, the respondents jointly filed a counter affidavit wherein they vehemently opposed the application. They also accompanied a Notice of Preliminary Objection on a point of law which was to the effect that: 1. 'That the application is incompetent for failure to file a notice of intention to seek revision contrary to Regulation

34(1) of the Employmentand Labour Relations(General)Regulations, GN. No. 47of2017. When the matter was called on for hearing of the preliminary objection on 5^^ July, 2022, Mr. Benjamin Jonas, learned advocates for the applicant prayed that the preliminary objection be disposed of by way of written submissions. On their part, the respondents conceded to the prayer and the parties adhered to the scheduled orders. Submitting in support of the raised preliminary objection, the respondents jointly stated that the application filed by the applicant before this court is in contravention of the mandatory requirement of Regulation 34 (1) of the Employment and Labour Relations (General) Regulation GN. No. 47 of 2017 on Page 2 of 9 the ground that the applicant did not first file a mandatory notice of intention to seek for revision (CMA F.IO) at the CM A. The respondents were of the view that, since the regulation is drafted and has been couched in mandatory terms "shall", therefore failure to file the notice of intention to seek revision make the applicant's application incompetent. To cement their stance, they cited the case of Unilever Tea Tanzania Ltd v. Paul Basondole, Labour Revision No. 14 of 2020, High Court of Tanzania at Iringa (Unreported) whereby my brother at the bench MIyambina, J., while dealing with the same issue had the following to say at page 9 of the typed judgment:

- "It is the findings ofthis court that the question ofNotice is not a point of technicaiities. It is a handmaid ofjustice. This court worth of its meaning cannot ignore the iaid down iegai procedures offiiing notice ofrevision on the pretext ofavoiding technicaiities^ for doing so wouid be violating the law. Therefore, I find this application to be incompetent before the court for being preferred without iegai notice''. To bolster their argument, the respondents also referred this court to the decision of Anthony John Kazembe v. Testing Services (EA) PTY LTD, Labour Revision Application No. 391 of 2021, HC-DSM [Unreported] wherein my learned brother Mganga, J., held inter alia that: "In my view, failure of the applicant to file the notice to seek revision makes the application for revision to be incompetent I Page 3 of 9 therefore, associate myself with the reasoning of my learned brother Miyambina, J., in Basondole's case and learned Sister Maghimbi, J., in Mbilikila's case that failure to file a notice to seek revision makes the application for revision incompetent". Based on the above precedents, the respondents prayed the instant application be struck out for being incompetent for lack of legal notice of intention to seek revision. Responding to the written submission advanced by the respondents, Mr. Benjamin Jonas, learned advocate highlighted that this court has held

in numerous decisions including the decisions referred hereinabove by the respondents that applicant's failure to comply with the requirement of Regulation 34(1)ofthe Employment and Labour Relations(General) Regulation GN. No. 47 of 2017, which requires filing of notice of intention to seek for revision (CMA FIG) at the CMA prior lodging of the application for revision was incurably fatal. Mr. Benjamin submitted that, this position however has been recently alleviated by this court in the case of Tanzania Revenue Authority V. Mulamuzi Byabusha, Revision No. 312 of 2021 [HC-DSM](Unreported) delivered by my brother Rwezile, J., of recent on 21^ day of May, 2022. Mr. Benjamin stressed that in Mulamuzi's case (Supra), the court analyzed and referred or made reference to all decisions (Basondele's case and Kazembe's case) cited and relied upon by the respondents herein a^ Page 4 of 9 came up to the conclusion that failure to file the notice in accordance with Regulation 34(1) doesn't render the revision application incompetent. Mr. Benjamin quoted the findings of the court in Mulamuzi Byabusha (Supra) at page 9 of the typed copy of judgment where this court held inter alia that: ''Having considered the wording of reguiation 34(1) and the wording in the notice itseif that is CMA F.IO, Ifind nothing that suggests that the appiication before this court becomes incompetent mereiy

because, the CMA F.IO was not hied. Ithink so because, what the reguiation insists is thatforms named shali be used in aii matters to which they refer. The words shaii be used to matter which they refer, are piain and need no construction. It means in my view, for instance, one should not use CMA F1 to fife an appiication for condonation or where it is directed that CMA F.3 has to be used, it should be used for the that purpose only. There is nowhere in the law, where it is categorical that CMA FIO institutes a revision before this court''. It was Mr. Benjamin's averment that this court be persuaded by this most recent decision on the basis of the holding of the Court of Appeal of Tanzania in Ardhi University v. Klundo Enterprises(T) Limited, Civil Appeal Case No. 58 of 2018(Unreported) whereby the Court observed that: " following the most recent decision, it makes a lot of legal Page 5 of 9 common sense, because it makes the law predictable and certain and the principle is timeless in the sense that, iffor instance, a full Bench departs from its previous recent decision that decision would prevail as most recent'. Mr. Benjamin also cited various decisions of this court including the cases of Frednand Nsakuzi v. Director General of PCCB, Revision No. 7 of 2018 HCT Iringa and Alphance Dionezio Boniphace v. Shirika fa Upendo na Sadaka, Revision No. 8 of 2018 (Unreported) which

applied the overriding objective principles on curable anomalies which does not occasion miscarriage of justice. It was the learned advocate submission's that since the respondents were not prejudiced in any way, this court should follow the principles enunciated in Yakobo Magoiga Gichere v. Penina Yusuph (Civil Appeal No. 55 of 2017) [2018] TZCA 222 (09 October 2018); Commissioner General Tanzania Revenue Authority v. JSC Atomredmetzoloto (ARMZ) (Consolidated Civil Appeals No. 78 of 2018,& No. 79 of 2018)[2020]TZCA 306 (09 June 2020); Jovet Tanzania Limited v. Bavaria N.V. (Civil Appeal No. 207 of 2018)[2022] TZCA 557(14 September, 2022), and Jamal S. Mkumba & Abdallah Issa Namangu v. Attorney General, Civil Application No. 240/01 of 2019(All unreported) of which all these cases emphasized that where the anomaly complained upon has not prejudiced the other party and an amendment of the same would enable substantive determination of the matter, an order of amendment will be more suitable. Page 6 of 9 Relying upon the afore-mentioned precedents, the learned advocate averred that his client's desire is that should this Honourable Court reach a conclusion that filing of the notice under Regulation 34(1) of the Employment and Labour Relations (General) Regulations GN. No. 47 is indispensable notwithstanding the filing of the Notice of Application under Rules 24(1) of the Labour

Court Rules, G.N. No. 106 of 2007, this court should allow the applicant to amend the application by filing the said notice rather than striking out the application as proposed by the respondent's counsel. I have followed the rival submissions and extensively read the decisions of this court which were referred by both sides during their submissions in line with the Regulation 34 (1) of the Employment and Labour Relations (General) Regulations, GN. No. 47 of 2017 contested by both parties. The noble task of this court is to determine, whether failure to comply with the Regulation 34(1) (Supra) is incurably fatal. The respondents in their written submission highlighted that failure to abide by the CMA F.IO which are made under Regulation 34 (1) is incurably fatal since the said regulation is coached in mandatory terms that falls squarely under Section 53(2) of the Interpretation of the Laws Act [Cap. 1 R. E, 2019]. On the other side, the applicant affirmatively subscribes to the other school of thoughts which provide that failure to abide by Regulation 34(1), is not fatal. With due respect, I am not in agreement with the views averred by the learned counsel for the applicant In his written submission. It is my holding that Page 7 of 9 the instant application for revision which was filed in contravention with the Regulation 34 (1) of the Employment and Labour Relations

(General) Regulations, GN. No. 47 of 2017 is incompetent for the following obvious reasons: - One; Plain mandatory provisions of the law or any procedural law, rules and regulations which needs no hard interpretation, should be strictly read and interpreted as it is. In this regard, it is my settled view that, since Regulation 34(1) of the Employment and Labour Relations(General) Regulations, GN. No. 47 of 2017 is couched in mandatory terms, parties are duty bound to file the notice to seek revision as rightly submitted by the respondents. Two; Since the applicant has failed to furnish genuine reason as to why the Notice of Intention to commence a revision was not filed in the CMA, in my considered view, it is dangerous for this court to simply hold that evading to file the same is curable. It is noteworthy that seeking for substantive justice is not a gate pass of circumventing mandatory provisions of laws and rules. Further, permitting litigants to evade the mandatory provisions and rules set out under the Employment and Labour Relation Act and Rules made under this Act will open a pandora box to litigants to disdain mandatory rules of procedures laid down in our laws. It should be noted that. Ignoring the laid down legal procedures on the pretext of evading technicalities, is equals to applying the same technicalities in violating the settled procedural rules, and Page 8 of

9 Three, the overriding objective principles in the Written Laws (Miscellaneous Amendments)(No. 3)Act, 2017(Act No.8 of 2017)in my settled view, did not meant to be applied by this court blindly as a yard stick to flout mandatory provisions of the procedural laws. In the premises of the above, I hereby sustain the preliminary objection and mark the application struck out for contravening the mandatory requirement of notice required under the provision of Regulation 34(1) of the Employment and Labour Relations (General) Regulations, GN. No. 47 of 2017. However, considering the nature of the matter at hand, each party to bear its own costs. It is so ordered. DATED at MOROGORO this 30^ day of December, 2022. M. J. Chaba COURf o (j> A Judge T ■z- f Si > 30/12/2022 Page 9 of 9