JOANITHA RUGAMBWA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [ARUSHA- SUB- REGISTRY] AT ARUSHA LABOUR REVISION NO. 53 OF 2023 (Original Dispute No. CMA/ARS/137/21/51/2021 o f the CMA for Arusha before O. Mwebuga, Arbitrator) JOANITHA DAMASI RUGAMBWA................................................ APPLICANT VERSUS MOUNT MERU PETROLEUM LTD.......................... ................ ..RESPONDENT JUDGMENT 15thJanuary & 24h February 2025 I.e. MUGETA, J. The applicant's employment with the respondent was terminated on 12/04/2021. She referred the dispute to Commission for Mediation and Arbitration (CMA) claiming for deductions of salaries accumulated since 27/11/2007 when she was employed. Her argument was that throughout her employment, the respondent paid her Tshs 150,000/= contrary to the Labour vs Institution Wages order of 2013 which raised the minimum wage in her sector to Tshs 400,000/=. She claimed Tshs 23,050,000/= as unpaid wages. After hearing the parties, the Arbitrator passed the award. In that award he, suo moto, raised the issued of jurisdiction. He found that the CMA had no jurisdiction on matters pertaining to wages deduction. He relied on section 41 (3) of the labour institution Act [Cap 300 R.E. 2019] which reads. "Any worker who has been paid wages below the prescribed minimum wage may apply to the District Court or Resident Magistrates Court for recovery o f the amount by which the worker was under paid." The dismissal of the application aggrieved the applicant, hence, this application. She challenges the award on different grounds. Once of them which is the subject of this decision is that the arbitrator erred in law and in fact for not calling the parties to address him after he found that the CMA had no jurisdiction to entertain the matter in the course of composing the award. In her written submissions to support the complaint, the applicant has submitted that the act of the arbitrator denied the parties the right to be heard which is a constitutional right under Article 13 (6) (a) of the Constitution. 2 In the reply submissions Mr. Issa Rajab Mavula, learned advocate for the respondent, has not responded to the issue of the arbitrator's failure to accord the parties the right to be heard. It is now settled that before the court takes adverse action against any party, that party is entitled to the right to be heard. In Alisum Properties Limited v Salum Selenda Msangi (As Administrator of the Estate of the Late Selenda Ramadhani Msangi Civil Appeal No. 39/2018, Court of Appeal - Dar-es-Salaam (unreported) the trial court raised and decided on matters of locus standi and none joinder of parties when composing the judgment. It was held that, that was an incurable irregularity as the parties were not heard on those issues (pages 14 - 15). In Jayart Kumar Chandubhai Patel & 3 others v The AG & 2 others, Civil Application No. 160/2016, Court of Appeal - Dar-es- Salaam (unreported) at page 31 it was held that when the court uncovers new matters when deliberating on the case after hearing the parties, the remedy is to reopen it to hear the parties on that particular matter. Therefore, the arbitrator ought to have summoned the parties to address him on the matters he uncovered. Failure to do so denied the parties the right to be heard which is an incurable irregularity. Consequently, I hold that the Arbitrator erred to hold that the CMA has no jurisdiction without hearing the parties. In view of foregoing, I find no reason to consider the other grounds of complaint. Doing so would amount to dealing with merits of the case which was not done by CMA as court of first instance. Before winding up, let me address the complaint by counsel for the respondent that the applicant filed her submissions in chief outside the prescribed date, namely, 5/12/2024. Indeed, the hard copy in the case file is dated 6/12/2024 which is one day late. However, I understand the practise at the registry is that they do not accept a hardcopy unless they are satisfied a soft copy has already been uploaded in the eCMS. If the hard copy is stamped 6/12/2024, it means the soft copy had been uploaded on the same day or a day before or the system was down. The eCMS, however, shows that the submission in chief was uploaded on 23/12/2024, later to the reply which was uploaded on 18/12/2024. I understand the eCMS is still under development and sometimes it can be unsupportive. As there is no evidence before me upon which I can discern what happened, I cannot condemn the applicant for filing the submissions in the system out of time where he managed to file the hard copy on 06/12/2024. Nonetheless, even if I decided to strike out the submissions in chief, I would not have dismissed the case because cases of this nature are decided on account of facts stated in affidavits, counter affidavits and replies thereof. I agree with what my brother Justice Mlyambina stated in Stephen Ngalamba v Onesmo Ezekia Chaula, Misc. Land Application No. 05/2022, High Court - Songea (unreported) and Atuwonekye Mwenda v Hezron Mangula, Misc Land Application No. 05/2020, High Court - Iringa (unreported) that in applications, the Court can decide the case without hearing the parties because the evidence on facts upon which the decision would be based is already laid down in the affidavit, counter affidavit and the reply to counter affidavit, if any. In this case, the fact that the parties were not heard is pleaded at paragraph 3 (iv) of the affidavit and paragraph 2, 6, 8 and 9 of the counter affidavit. In the event, I quash the award of the CMA. I order that the CMA should hear the parties on the issue of jurisdiction. The hearing shall be before another arbitrator of competent jurisdiction. In case it finds that it has the jurisdiction, it shall proceed to pass a decision on merits of the case per the evidence on record. If indeed, it has no jurisdiction, it shall, once again, strike out the case. The application is allowed. This being the labour case, each party should bear own costs. I.C. MUGETA JUDGE 24/02/2025 Court: Ruling delivered in chambers in the absence of the applicant and the respondent but in the presence of Herode Bilyamtwe, personal representative of the applicant and Issa Mavula, Advocate for the respondent. Sgd: I.C. MUGETA JUDGE 24/02/2025