gabriel laurent mwita vs maxinsure t ltd 2021 tzhcld 193 28 june 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 847 OF 2019 BETWEEN GABRIEL LAURENT MWITA............... APPLICANT VERSUS MAXINSURE (T) LIMITED.................. RESPONDENT Date of Last Order: 22/06/2021 Date of Judgment: 28/06/2021 A.Msafiri J, The applicant, Gabriel Laurent Mwita has filed an application for the Revision of the award of the Commission for Mediation and Arbitration (CMA) at Dar es salaam dated 27/09/2019. His prayers before this Court was that; honorable Court be pleased to call the records and revise the whole award of the Commission for Mediation and Arbitration dated 27/09/2019 and make an order to set it aside.' It is important to depict, albeit briefly, what pressed the application at hand. The applicant was employed by the respondent as Branch Manager on 1 1st September 2013. His employment was terminated on 15th July 2017 by reason of retrenchment after he was served earlier with Notice of retrenchment dated 3rd July 2017. As per the Applicant's affidavit, on 14th August 2017, he instituted Labour Dispute No. CMA/DSM/R.847/17 to the CMA claiming for terminal benefits. On 31st November 2017, both parties at the CMA during mediation entered a settlement agreement that the applicant will be paid his PPF pension benefits, Tshs. 27,900,000/= by which Tshs. 4,000,000/= will be deducted being the debt the respondent owed the applicant. Therefore it j| 1Whhi was settled that the applicant be paid Tshs. 23,900,000/= However, the applicant was dissatisfied by the said settlement so he filed Miscellaneous Application No. 84 of 2018, praying for extension of time for review of CMA settlement agreement on ground that the agreement was in respect of PPF payments only, and that he was not heard at the CMA. The application was struck out on 23rd May 2019 on the reason that the applicant did not attach a copy of the disputed CMA order. The applicant then went back to the CMA and filed an application for extension of time to file a fresh complaint for unfair termination. The same was filed as labour dispute No. CMA/DSM/ILA/579/2019 before Abdallah M, 2 Arbitrator who dismissed the application on 27th September 2019 for the grounds that the dispute was already settled before the CMA, so it was res judicata. The applicant was aggrieved with that decision hence he filed this application. At the hearing, the applicant appeared in person while Mr. Emmanuel Kessy Advocate appeared for the respondent. In his submission, the applicant prayed to adopt his affidavit in support <.. of the application to form part of his submissions. He briefly stated that he was terminated without notice, not paid leave and that the respondent operated his bank account at Tanzania Women Bank (TWB), without his permission. He submitted further that, the reliefs he is seeking before this Honorable Court is unfair termination, severance allowance, leave and » ■ compensation. He prayed to be paid a total of Tshs. 56,000,000/= and the refund of Tshs. 4,000,000/= which was taken forcibly by the respondent from his PPF contributions. Responding, Mr. Kessy vehemently objected that the applicant has no any claim against the respondent. That the relief he is claiming before this 3 Court were already determined before CMA in CMA/DSM/R.847/2017 where by the dispute was resolved by settlement retrenchment agreement before the Mediator. Mr. Kessy argued that in the settlement agreement, the applicant was paid a retrenchment package of 3 months leave equal to 3 months' salary which was Tshs. 9,000,000/=, severance payment of Tshs. 3,230,769/=. He s« said that the money was paid in the applicant account at TWB and the Respondent has no control of the transactions of the said applicant's personal account. f J Mr. Kessy added that, the dispute was resolved at CMA for agreement that since there was pending funds for PPF contributions which was 27.9 Million, the amount be paid by the employer (respondent). And that a sum .. ........ of 4 Million shillings be deducted from the payments entitled to the applicant, and the applicant be paid Tshs. 23 Million, the sum which was paid on the same date of settlement on 31/10/2017. Counsel for respondent, maintained that the decision of the CMA dated 27/09/2019 was proper, and prayed that this Honorable Court to revise the whole record of the Court and find that this application has no merit and dismiss it with costs. 4 In rejoinder, the applicant told the Court that he has no dispute over his PPF contributions and that they should not be mixed with other benefits that is severance allowance, leave and compensation. He stated that his dispute is that he was unfairly terminated. He prayed for the Court to order the respondent to give him a notice of termination, payment of 3 months leave, arrears and compensation. After carefully evaluating and examining the submissions by both •;? I parties and the record at hand, the prayer before me is for Revision of the whole award of the CMA dated 27/09/2019 and make an order to set it aside. Ik H In the disputed award, the CMA dismissed the application by the applicant £ because the similar matter was already filed before CMA in 2017 and the matter was determined and settled. ■ The issue here is whether the Arbitrator in the dispute labour No. CMA/DSM/ILA/579, Hon. Abdallah, Mediator was right to dismiss the applicant's extension of time to file a dispute for unfair termination. Having gone through the disputed decision by Hon. Abdallah, Mediator, the reason for his decision was that the application before him was Resjudicata. That the applicant has already filed the matter in 14/8/2017 which was settled by 5 entering a settlement dispute which was signed by both parties before the Mediator. In the case of Iddi Muhunzi vs. Tanzania Cigarette Company Limited, Revision No. 299 of 2019, Hon. Judge Muruke, J, determining issues before her, she analysed the principle of resjudicata as provided in "c,. -ccc section 9 of the Civil Procedure Code, Cap. 33 (R.E 2019) which provides; "No Court shall try any suit or Issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under nr whom they or any of them claim litigating under the same title in a competent Court to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court.' Hon. Judge also made a reference to the case of James Katabazi & % > 21 Others Vs. Secretary General of the EAC & the Attorney General of Uganda, Ref. No. 1 of 2007 EACJ, where it was also held that for the doctrine of res judicata to be applicable, the following have to be observed /. Whether the matter is directly and substantially in issue in the two suits, ii. Parties must be the same or parties under whom any of them claim, litigation under the same title, 6 iii. The matter must have been finally decided in the previous suit. Hon. Judge continue to hold that, therefore for the principle of res judicata to operate, it must be shown that the previous judgment determined the matter, and that of the same parties and of the same subject matter. In the matter at hand, as per the Court records, the parties that is the applicant and respondent, mutually agreed for the reason of retrenchment, to terminate the employment relationship (This is per annexure E attached with the Applicant's affidavit). ■ >>>■•" * % The applicant then filed the dispute before the CMA claiming for terminal benefits. On 31st November 2017, the dispute was resolved by way of Mediation Whereby a settlement was entered between the parties. This is per certificate of settlement which was signed by both parties and the Hon. < 1 Mediator. (The same also forms part of the Applicant's Affidavit as 'annexure GM-1'). k". ' :;k:' Having been paid the agreed sum as per "annexure GM-1", the applicant was aggrieved with the settlement and filed an application before this Court claiming that the agreement was in respect of PPF payments only and that he was not heard at CMA. 7 This Court struck out the said application on the ground that the applicant failed to attach a copy of the order of CMA in which the applicant claimed he was refused an audience to be heard. During his rejoinder submissions, in the present application, the applicant agreed to have been paid half salary, severance allowance, 3 months leave salary of Tshs. 9,000,000/=. He stated that, his dispute is that he was unfairly terminated. After careful consideration of the records which includes the applicant's affidavit, the attachments and submissions before this Court, I am inclined to agree with the decision of Hon. Abdallah, Mediator, that the matter before him was resjudicata, basing on the fact that „ V..Jr the same was determined in Labour Dispute No. CMA/DSM/R.847/2017 filed by the applicant on 14/08/2017 where by the parties were the same Jsf applicant and respondent who were before Labour Dispute No. CMA/ILA/579/2019. Therefore, I have no hesitation to uphold the CMA's ruling that the matter was res judicata as it was already determined and finalized whereby the parties entered a settlement agreement. On the basis of the above discussion, I am inclined to agree with counsel for the respondent that the applicant has no sufficient grounds for revision. I hereby uphold the CMA award in CMA/DSM/ILA/579/2019 dated 8 27th day of September 2019 and dismiss the application for lack of merit. No costs is awarded this being a labour dispute. 9