IBRAHIM SIRAJI MHAGAMA V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 26049 OF 2024 (Arising from the Ruling delivered on 27/9/2024 by Hon. Ngalika, E, Mediator, in Labour dispute No. CMA/DSM/ TMK/141/2024 at Temeke) IBRAHIM SIRAJI MHAGAMA……………….……………………....….. APPLICANT

VERSUS LAKE PIPES LIMITED............................................................... RESPONDENT

JUDGMENT Date of Last Order: 20/11/2024 Date of Judgment: 26/11/2024 B. E. K. Mganga, J. Ibrahim Siraji Mhagama, the abovenamed applicant was an employee of Lake Pipes Limited, the abovenamed respondent. On 5th June 2024, applicant filed Labour dispute No. CMA/DSM/TMK/141/2024 before the Commission for Mediation and Arbitration (CMA) at Temeke complaining that respondent breached his contract of employment. In the referal form(CMA F1) applicant indicated that the dispute arose on 2nd May 2024. When the dispute was at mediation stage, respondent raised a preliminary objection that the dispute was time barred. On 27th September 2024, Hon. Ngalika, E, Mediator delivered the ruling dismissing the dispute for being time barred. Applicant was aggrieved with the said ruling hence this application for revision. In the affidavit in support of the application, applicant raised four grounds namely:- 1. That, the Honourable Mediator erred both in law and facts by sustaining the preliminary objection raised by the respondent.

2. That, the Honourable Mediator erred both in law and facts by ruling the dispute was time barred while in the referral form(CMA F1) applicant referred the dispute of breach of contract and not unfair termination.

3. That the Honourable Mediator erred both in law and facts by holding that the dispute of unfair termination and breach of contract are governed by one provision which is illogical and misconceived.

4. That the Honourable Mediator erred both in law and facts in issuing illogical, irrational and contradictory ruling, therefore worth to be revised. When the application was called on for hearing, applicant appeared in person while respondent was represented by Diana Frank, her principal officer. Arguing the application, applicant submitted that, the dispute was filed within time but the same was dismissed by Hon. Ngalika, Mediator. Applicant submitted further that, the role of the mediator is only to mediate the parties. He added that, the mediator did not mediate the parties but made a decision. With those brief submissions, applicant prayed that the application be allowed. On the other hand, Ms. Frank, submitted that, the dispute was dismissed by Ngalika, mediator, who had only the role of mediating the parties. Ms. Frank joined hands with the applicant that, the mediator performed the duties of arbitration and not mediation. She added that, the mediator had no that jurisdiction. With those submissions, Ms. Frank prayed the court to quash and set aside the ruling and order the parties to go back to CMA so that the preliminary objection can be properly determined by the arbitrator and thereafter, if possible, mediation to proceed in accordance with the law. I have examined the CMA record and considered submissions of the parties in this application. There is no doubt,

according to CMA F1 that applicant indicated that the dispute he filed at CMA is on breach of contract and that the same arose on 2nd May 2024. There is also no dispute that, applicant filed the said dispute on 5th June 2024. It was correctly, in my view, submitted by the parties that the dispute was dismissed by the mediator at mediation stage after respondent has raised a preliminary objection that the dispute was time barred. It was equally correctly submitted by the parties that the role of the mediator is to mediate the parties and that, in the application at hand, the mediator perfumed the roles of the arbitrator. This court, on several ocassions, had an advantage to discuss the powers and or roles of the mediator provided under section 86(4), (7) and (8) of Employment and Labour Relations Act[ Cap. 366 R.E. 2019] and Rule 3(1) and (2) of the Labour Institutions (Mediation and Arbitration Guideline) Rules, GN. No.67 of 2007 and held that the powers of the mediator are limited to assisting the parties to reach settlement. The said Rule 3(1) and (2) of GN. No. 67 of 2007 (supra) provides: - “3(1) Mediation is a process in which a person independent of the process parties(sic) is appointed as mediator and attempts to assist them to resolve a dispute and may meet with the parties either jointly or separately, and through discussion and facilitation, attempt to help the

parties settle their dispute. (2) A mediator may make recommendations to the parties suggesting for settlement if, the parties to the dispute agree or the mediator believes it will promote settlement. Recommendations made are not binding on the parties; it is only persuasive and aims to assist the parties to settle a dispute.” See for example the case of Ndovu Resources Limited vs Thierry Murcia, Rev. Appl. No. 371 of 2022 , Kombe’s case (supra), Nelson Mwaikaja vs Gemshad Ismail & Usangu General Traders (Rev. Appl 382 of 2022) [0023] TZHCLD 1 and Benjamin Lazaro Isseme vs Yapi Merkezi Insaat Ve Sanayi Anonim Sirket (Rev. Appl 26 of 2023) [2023] TZHCLD 1225 (31 March 2023) to mention but a few. Apart from the aforecited cases of this Court, the Court of Appeal in the case of Barclays Bank T. Limited vs AYYAM Matessa, Civil Appeal No. 481 of 2020 [2022] TZCA 189 held that the powers of the Mediator are limited. In Matessa’s case (supra) the Court of Appeal held inter-alia that:- “…Truly, under the ELRA the jurisdiction of a mediator as the title dictates, is to mediate, the process which does not include to dismiss and to decide a complaint. That would no doubt be a general rule. Under exceptional circumstances as it is in the provision under discussion, the mediator is empowered to dismiss the complaint if the referring party fails to appear and decide the same if the party

against whom the referral is made fails to appear.” (Emphasis supplied) For the foregoing, I hold that the mediator had no power to determine the preliminary objection that was raised by the respondent and dismiss the dispute that was filed by the applicant. I therefore hereby nullify proceedings, quash and set aside the ruling of the mediator that sustained a preliminary objection raised by the respondent and dismissed the dispute for being time barred. I therefore direct the parties to go back to CMA so that the preliminary objection that was raised by the respondent namely the dispute was time barred or not can be determined properly by the arbitrator. Dated at Dar es Salaam on this 26th November 2024. B. E. K. Mganga

JUDGE Judgment delivered on this 26th November 2024 in chambers in the presence of Ibrahim Siraji Mhagama, the Applicant but in the absence of the respondent. B. E. K. Mganga

JUDGE