james anthony another vs shoppers supermarket ltd 2023 tzhcld 1150 10 february 2023

IN THE UNITED REPUBLIC OF TANZANIA HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 335 OF 2022 (Arising from the Labour Dispute No. CMA/DSM/KIN/246/2022) JAMES ANTHONY.......................................................... 1st APPLICANT HABIBA SAID SALUM...................................................... 2nd APPLICANT VERSUS SHOPPERS SUPERMARKET LTD............................ ........ RESPONDENT % & RULING K.T.R MTEULE -------------- — 10th February 2023 & 10th February 2023 1 This is an application for Revision challenging the decision of the Commission for Mediation and Arbitration of Dar es Salaam Kinondoni in Labour Dispute No. CMA/DSM/KIN/246/2022. In their joint affidavit, the applicants advanced one ground asserting mediator's error in denying condonation application while the applicants had sufficient grounds for delay. When the matter was called for hearing, Mr. Edward Simkoko from TASIWU Trade Union represented the Applicants while Mr. Sweetbert Festo represented the Respondent. i Before proceeding with the hearing, Mr. Simkoko alerted the court on the issue of jurisdiction and asked for the court to allow it to form part of the grounds of revision. Although Mr. Sweetbert objected the inclusion of this issue in the revision, the court was on the opinion that issues of jurisdiction are paramount and they must be addressed in whatever form they are brought into the attention of the court. That they can be raised by either of the parties or the court suo moto. Taking this into account, the court allowed the parties to address jurisdictional % issue as part of the grounds of the revision. Mr. Simkoko submitted that according to Section 86 (3) of the Employment and Labour Relations Act Cap 366 of 2019 R.E, determination of a labour dispute is not one of powers of a mediator, rather a mediator's powers are confined to mediating the parties only. He cited the case of Barclays Bank (T) limited versus Ayyam Matessa, Civil Revision No. 481 of 2020, Court of Appeal of Tanzania, pages 18 and 20 where the court confirmed that the mediator does not have powers to determine a condonation application in a labour dispute. Mr. Sweetbert did not have a different opinion regarding the Court of Appeal position in Matessa's case supra but he is of the opinion that the issue of jurisdiction is an afterthought in this application. 2 I have considered the parties submission. Whether the issue of jurisdiction in this application is an afterthought, it is a matter which I decided before I allowed the parties to address me. Issues of jurisdiction can be raised at any stage even at the appellate level because it goes to the mandate of the court. Since there is no dispute that pursuant to section 86 (3) of Cap 366 and the Case of Matessa supra, mediators do not have jurisdiction over condonation application, it is vivid that the mediator exercised a jurisdiction he did not have. It is on the above reason I hold that the mediator did not have & 'W, jurisdiction to determine the Labour Dispute. I revise the CMA decision and set aside the ruling of the mediator. I remit the matter back to the CMA for the issue of condonation to be determined by an arbitrator and % , % W not a mediator. I see no reasons to proceed with consideration of other grounds of revision. It is so ordered. Dated at Dar es Salaam this 10th Day of February 2023 JUDGE 10/2/2023 3