humphrey singogo vs mkombozi commercial bank plc 2023 tzca 17566 30 august 2023

IN THE COURT OF APPEAL OF TANZANIA AT DAR-ES-SALAAM f CORAM: MUGASHA, J.A.. KITUSI. 3.A. And MDEMU. 3.A.1 CIVIL APPEAL NO. 460 OF 2021 HUMPHREY SINGOGO............ .............................................. APPELLANT VERSUS MKOMBOZI COMMERCIAL BANK PLC........................... ........RESPONDENT [Appeal from the decision of the High Court of Tanzania (Labour Division) at Dar Es Salaam] fMuruke, J/l Dated the 13th day of August, 2019 in Revision No. 877 of 2019 RULING OF THE COURT 25* & 30th August, 2023 MUGASHA. 3.A.: In 2009 the appellant herein, was employed by the respondent as an accountant at its St. Joseph Branch until his termination on 20/5/2017 while holding the position of a Branch Manager for gross misconduct. It was alleged that, the appellant had caused loss at the tune of TZS. 438,000,000.00 to the respondent having processed loans to the employees of Sahara Media without the approval of their employer. Thus, the respondent initiated disciplinary proceedings which culminated to the termination of the appellant from the employment. Aggrieved, the appellant filed an employment dispute before the Commission for Mediation and Arbitration (the CMA) at Dar-es-salaam, registered as CMA/DSM/ILA/R.644/57/751 on the grounds that he was unfairly terminated. He prayed to be reinstated and be paid all terminal benefits. The CMA found that the termination was substantively fair but procedurally not fair and it awarded the appellant payment of sixteen (16) months' salaries as compensation. Unamused, the respondent filed an application for Revision before the High Court (Labour Division) to challenge the award of the CMA. The High Court quashed and set aside the award on ground that the CMA of Dar-es-salaam had no territorial jurisdiction to determine the dispute which arose in Mwanza. The appellant was aggrieved by the decision of the High Court and has preferred the present appeal seeking to impugn the decision of the High Court. In the Memorandum of Appeal, the appellant has fronted three grounds of complaint which we have opted not to reproduce due to the reasons to be apparent in due course. At the hearing, the appellant was represented by Mr. Barnabas Luguwa, learned counsel whereas the respondent had the services of Dr. Onesmo Michael Kyauke, learned counsel. Before proceeding to hear the appeal, we wanted to satisfy ourselves on the propriety or otherwise of the decision of the learned High Court Judge who, in the course of writing her Ruling, quashed and set aside the award of the CMA on ground that it had no jurisdiction to entertain the matter without involving the parties. On taking the floor, after a brief dialogue with the Court, on a reflection, both learned counsel submitted that, since the matter was suo motu raised by the learned High Court Judge in the course of writing the impugned Ruling, she ought to have invited parties to address her on the matter before making the Ruling. As this was not the case, both learned counsel were at one that, parties were denied a right to be heard which is a serious omission occasioning a miscarriage of justice. Thus, both learned counsel urged us to quash and set aside the Ruling of the High Court, return the case file to the High Court with a direction that the Revision be heard. Having carefully considered the submission of learned counsel and the record before us, it is not in dispute that the issue about the CMA lacking jurisdiction to adjudicate the labour complaint was raised suo motu and determined by the learned High Court Judge in the course of composing her Ruling. She did so without recalling the parties to address her on the said point of law. Thus, the issue for our determination is the propriety of the impugned decision as parties were denied the right to be heard. What transpired before the High Court is that, the hearing of the Revision was conducted by way of written submissions as per the High Court order dated 17/2/2021 as reflected at page 506 of the record of appeal. In the respective written submissions, none of the parties had addressed the issue that the CMA of Ilala lacked jurisdiction to entertain the dispute which arose in Mwanza. Besides, after the written submissions were filed, the record is silent on parties being re-summoned to address the High Court on the said point of law. However, what is evident in the impugned Ruling is reflected at pages 510, 511 and 512 of the record of appeal as hereunder: "The Bank felt aggrieved, thus filed present revision, challenging arbitrator's award. After conclusion o f pleadings hearing was by way o f written submission. In the [course] o f composing judgment, I realized that, cause o f action arose in Mwanza as respondent was working as Branch Manager. It is therefore an issue o f Territorial jurisdiction that court has to satisfy before proceeding with other step. Before proceeding with any dispute, the commission is duty bound to determine its competence on the issue o f territorial or geographical powers. It is the position o f the law that, labour dispute must be referred to the area where the dispute arose. It is irregular exercise o f the jurisdiction to proceed mediating the dispute to the area where the dispute did not arise. The proceedings conducted without consideration o f geographical jurisdiction will be declared nullity by the higher court, the position was insisted in the case o f Christian Michael Vs. Ujenzi Secondary School Labour Revision number 178 o f 2013 (unreported) where the court cited with approval section 15 o f Labour Institutional Act, No. 7 o f 2004 and Rule 22 o f GN 64 o f2007, in which it was held that, CMA Temeke District had no jurisdiction to entertain the matter whose cause o f action arose at Mkuranga District. The case at hand, dispute arose at Mwanza region, while dispute was instituted at Dar es Salaam CMA, Iiaia District. There is no any application filed to the commission for any exemptionto that effect. Thus, hearing o f the dispute by CMA Haia District Office is withoutjurisdiction. Jurisdiction is important aspect, it gives the power for court, or and tribunal to determine dispute. The record does not show whether permission was sought and granted to file dispute at CMA Ilaia Office instead o f Mwanza. Therefore, what transpired at CMA liala between the parties herein, is null and void. ...In the upshot proceedings, award emanating in the dispute...are quashed and set aside. Respondent to institute his dispute within 60 days from the date served with copy o f ruling in a competent CMA office having territorial jurisdiction to entertain the dispute." At the outset, we restate that it is settled law that although the question of jurisdiction can be raised at any stage and even at the appellate stage it can be raised suo mottu, however, before giving out a judgment or ruling, the court has to accord the parties the right to be heard on the raised legal point. The said right is rooted in a cardinal principle of natural justice that; a person should not be condemned without being heard. In our jurisdiction, natural justice is not merely a principle of common law, as it has been embraced as a fundamental right under Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, which has prescribed such right to be among the attributes of equality before the law. In this regard, the courts should not decide on a matter affecting the rights of the parties without giving them an opportunity to express their views before a decision is made by the court. See - TRANSPORT EQUIPMENT VS DEVRAM VALAMBHIA [1998] TLR 89, KAPAPA KUMPINDI VS THE PLANT MANAGER, TANZANIA BREWERIES LTD, Civil Appeal No. 32 of 2010, PETER NG'HOMANGO VS THE ATTORNEY GENERAL, Civil Appeal No. 114 of 2011 (both unreported) and MBEYA RUKWA AUTOPARTS AND TRANSPORT LIMITED VS JESTENA MWAKYOMA [2003] T.L.R 253. Therefore, an omission to hear a party in adjudication, is not only a violation of the rules of natural justice, but also a contravention of the Constitution, which renders the resulting decision void and of no effect. The Court had the occasion to discuss about the consequences on omission to violate a right of the party to be heard before adverse action or decision is taken against such party in the case of ABAS SHERALLY AND ANOTHER VS ABDUL FAZALBOY, Civil Application No. 33 of 2002 (unreported). The Court emphasized as follow "That right is so basic that a decision arrived at in violation o f it will be nullified,, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach o f naturaljustice." [See also - VIP ENGINEERING AND MARKETTING LIMITED AND OTHERS VS CITE BANK TANZANIA LIMITED, Consolidated Civil References No. 5, 6, 7 and 8 of 2008 and SAMSON NGWALIDA VS THE COMMISSIONER GENERAL OF TANZANIA REVENUE AUTHORITY, Civil Appeal No. 86 of 2008 (both unreported)]. In the latter case which is akin to the matter under scrutiny, Tax Revenue Appeals Tribunal had dismissed the appellant's appeal on a ground that it had no jurisdiction. This was neither raised by the parties, nor were parties re-summoned to address the Tribunal on that ground which the Tribunal had raised suo motu. Relying on the case of VIP ENGINEERING AND MARKETTING LIMITED AND OTHERS VS CITI BANK TANZANIA LIMITED {supra) the Court held that: "The Tribunal was required to hear the parties before it made its decision on the question o f jurisdiction on the matter, it went against the rules o f natural justice to raise the issue suo motu and then gave a decision on it without first giving the parties an opportunity to address the Tribunal on the matter." Thus, consistent with the constitutional right to be heard as well as settled law, in the case under scrutiny, with respect, the adverse decision of the learned High Court Judge to strike out the application on the ground that the CMA had no jurisdiction to entertain the labour dispute without hearing the parties is a nullity and it was in violation of the basic and fundamental constitutional right to be heard. In the circumstances, the impugned Ruling cannot be spared. On the way forward, we invoke our revisional jurisdiction under section 4 (2) of the Appellate Jurisdiction Act [CAP 141 R.E 2019] to quash and set aside the impugned ruling and the subsequent orders. We direct the case file to be returned to the High Court (Labour Division), placed 9 before another judge with competent jurisdiction to determine the point raised on jurisdiction after hearing the parties. This should be expedited as soon as practicable as the matter has been pending in courts for almost seven years. DATED at DAR-ES-SALAAM this 29th of August, 2023. S.E.A. MUGASHA JUSTICE OF APPEAL I. P. KTTUSI JUSTICE OF APPEAL G. 3. MDEMU JUSTICE OF APPEAL The Ruling delivered this 30th day of August, 2023 in the presence of Mr. Barnaba Luguwa, learned Counsel for the Applicant and Mr. Daniel Yona Masaga, learned Counsel for the Respondent, is hereby certified as a true copy of the original. R.W. Chaungu DEPUTY REGISTRAR COURT OF APPEAL