john mkinga vs tanzania breweries ltd 2021 tzhcld 2107 8 october 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION PAR ES SALAAM REVISION APPLICATION NO. 260 OF 2020 BETWEEN JOHN MKINGA.............................................................................APPLICANT VERSUS TANZANIA BREWERIES LIMITED........... RESPONDENT RULING Date of Last Order: 8/10/2021 ...Ai Date of Ruling: 8/10/2021 B.E.K. MGANGA, J, On 1st May 2007, respondent .employed the applicant in the posit on of Forklift. On 2^th October 2016 respondent terminated employment of the applicant on allegation of fighting with a fellow employee at wqrkplaceswHich is misconduct. Aggrieved by the said terminatibnpapplicant referred the dispute to the Commission for I )j Mediatidn^andvAroitration henceforth CMA. Having heard evidence of X Ob' both, parties, on 29th May 2020, Nyangaya, P, Arbitrator, issued an award in favour of the respondent that termination was fair both substantively and on procedure. Applicant was aggrieved by the said award hence this application for revision. 1 When the application came for hearing on 10th August 2021, Mr. Izlisaria Mosha, advocate assisted by Yohana Thomas, advocate appeared and argued for the applicant while Ruben Robert, advocate argued on behalf of the respondent. I scheduled judgment to be delivered on 8th October 2021. In the course of composing my judgment, I discovered that all five witnesses namel^.(i) Debgratias Gaspar Morsi (DW1), (ii) William Tukiko Asembo (DW2)^(iii) Kisa Wilfred Mwasomola (DW3), (iv) Deogratias Robert Sabilo (DW4) and (v) John Soko Mkinga (PW1) testified nbtundekoath. When the application pame fokjudgment on 8th October 2021, only Mr. Erick Dengah,^advocateXor the respondent appeared. , i F ------J Counsel for the applicant 'bid not enter appearance and no notice of absence was filed-inscburth'*' As (counsellor' applicant failed to appear and without notice, J asked Mr, De’ng’ah, counsel for the respondent to address me the V\ 1 \ J’k effect of the witnesses to testify not under oath. Mr. Dengah, counsel for respondent submitted briefly that the omission vitiated CMA proceedings and prayed the same be nullified, the award be set aside and order trial de novo. 2 I am in agreement with Mr. Dengah, counsel for the respondent that evidence of all witnesses was recorded in violation of Rule 25(1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007 G.N. No. 67 of 2007 read together with Rule 19 (2) (a) of the same G.N. It is clear from Rule 19 (2)z(a) of the said G.N. that Arbitrator has powers to-administerz0ath and\further that under Rule 25(1) of the same G.N., it is mandatory Witnesses to testify under Oath. The mandatory requirement ofXyitness to testify under Oath is also provided for under Section ed) of the Oaths and (-f v\ y Statutory Declaration Act f(Cap 3'4. R^E. 2019). It is therefore \\ xX undisputed that the arbitrator,^ Jn) recording evidence of the '-z aforementioned \\ witnesses^ violated aforementioned mandatory ^xx \\^ provisions. Ther~omissjpnjv'of taking an oath or affirmation by witnesses.befoi;e;testifying vitiates proceedings cas .ofoTanzania Portland Cement Company Limited V. / Ekwabi Majigo, Civil Appeal No. 173 of 2019, Iringa International School V. Elizabeth Post, Civil Appeal No. 155 of 2019, Joseph Elisha V. Tanzania Postal Bank, Civil Appeal No. 157 of 2019 and Unilever Tea Tanzania Limited V. Davis 3 Paulo Chaula, Civil Appeal No. 290 of 2019. In all these cases, the Couit of Appeal held that the omission vitiated proceedings. The Court of Appeal nullified CMA proceedings, set aside the award arising therefrom and ordered trial de novo. The reason for the Court of Appeal to take that>stance is v \\ clear, in my view, that evidence taken not under oath is rendered X\ Ox s^x valueless. It is as if that a witness did not testify. In the application before me, since the only two witnesses<theiixevidence were taken not under oath, it is equally that therejsxngjevidence which I can examine/assess and make revision order.',! For the foregoing; \I am irr agreement with counsel for the respondent that CM^ proceedings be nullified, the award arising therefrom be sdt aside and order trial de novo. I therefore, hereby nullify £MA<proceedings, set aside the award arising therefrom and order trial de^novo before a different arbitrator without delay. \'It is so ord E.K. Mganga