joseph mwenda vs mohamed enterprises limited 2020 tzhcld 12 11 september 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 497 OF 2019 BETWEEN JOSEPH MWENDA.....................................................................APPLICANT AND MOHAMED ENTERPRISES LIMITED................................RESPONDENT JUDGMENT Date of last order: 23/06/2020 Date of Judgment: 11/09/2020 A, E, MWIPOPO, J The applicant herein namely Joseph Mwenda have filed the present Application for Revision against the Commission for Mediation and Arbitration Award in labour dispute no. CMA/DSM/ILA/R.417/2015 delivered on 9th June, 2017, by Hon. Urassa, Arbitrator. The applicant is praying for the Court to call for, revise the proceedings and set aside the Commission Award. There are two grounds of revision contained in paragraph 4 of the affidavit in support of the application. The grounds are as follows:- i 1. That the Hon. Arbitrator erred in law and facts by holding that the application was filed out of time while there was extension of time granted by the CMA. 2. That, the Hon. Arbitrator erred in law and fact by dismissing suo moto the applicant's claims that it was filed out of time without giving the applicant the right of hearing. The applicant was employed by the respondent namely Mohamed Enterprises Limited as a driver from 4th April, 2009, to 5th November, 2011 where his employment contract was terminated. The reason for termination was non-attendance of the applicant to his working station following his imprisoned for five years in criminal case no. 29 of 2012 before the District Court of Ilala at Samora after his conviction for the offence of Stealing by Servant on 4th December, 2012. The applicant was released from prison following his success in Criminal Appeal No. 49 of 2014 before the High Court at Dar Es Salaam in which its Judgment was delivered on 14th April, 2015. The applicant reported back to his office only to be told that he was terminated since 15th November, 2011. Aggrieved by the respondent decision to terminate him, the applicant referred the dispute to the CMA on 17th July, 2015 where the complaint was condoned on 8th April, 2016, by 2 Hon. J. Muhanika, Mediator. The mediation failed and the arbitration proceedings proceeded where the Commission award was delivered on 9th June, 2017. The applicant was not satisfied with the Commission award and filed the present application. In this application, the applicant was represented by Mr. Mwambene Adam, Advocate, whereas the respondent was represented by Revocatus T. Mathew, Advocate. Hearing of the application proceeded by way of written submission. The Counsel for the applicant submitted on the first ground of revision that the trial Arbitrator misdirected himself by dismissing the dispute on ground that the same was filed out of time. It is in record that the matter was condoned and applicant was granted extension of time to file dispute out of time on 8th April, 2016, by Hon. Muhanika, Mediator. Without considering this fact the Arbitrator dismissed the dispute before it on the same ground that it was filed out of time. To support the position he cited the case of Christian Roman Masawe vs. Arobogast Bakari Kimaro, Revision No. 87 of 2009, High Court Labour Division, At Arusha, (Unreported). 3 The second ground of revision as found in the affidavit in support of the application is that the trial arbitrator erred to dismiss suo moto the dispute before it without giving the applicant the right to be heard. The counsel for the applicant submitted that after the matter was condoned, it was mediated and arbitration proceeded. The parties filed their opening statement, issues were framed, evidence tendered and final submissions were filed. The matter was adjourned for the award but the award was not delivered on merits. The arbitrator raised suo moto the issue of jurisdiction and dismissed the application for being filed out of time. The applicant was not afforded right to be heard on the issue raised suo moto by the Arbitrator. The applicant cited the case of Ndesamburo vs. Attorney General, (1997), TLR 137; and the case of DPP Vs. Sabin Inyasi Tesha and Another, (1993), TLR 237 as authorities in this case. The Applicant prayed for the application be allowed and Commission Award be set aside. In reply, the counsel for the respondent submitted on the first grounds of revision that at the time of delivering the Commission award the trial Arbitrator was not in possession of the ruling of Hon. Muhanika, Mediator dated 8th April, 2016, which condoned the dispute. The Commission had duty to ascertain that it has jurisdiction to entertain the matter. The issue of 4 jurisdiction can be raised at any stage of the proceedings. This was held by High Court, Commercial Division in Zanzibar Insurance Corporation vs. Rudolf Temba, Commercial Appeal No. 11 of 2006, and in the case of Barclays Bank (T) Ltd vs. Kombo Ally Singano, Misc. Application No. 9 of 2013, 2013 LCCD Case No. 165. Thus the Arbitrator Cannot be faulted. The respondent submitted regarding the second ground of revision that the reason for the he subscribe to the demands for natural justice, but the right to be heard was afforded to the applicant. The arbitrator discovered from the evidence that the applicant was charged for criminal offence on June, 2019, was convicted and sentenced to five years imprisonment on 4th December, 2013. On appeal to the High Court the applicant was set free on 14th April, 2015. Thereafter, he instituted the labour dispute before the Commission on 17th July, 2015. There is no explanation as to why he did not refer the dispute to the Commission from June, 2009, to 4th December, 2013, since there is no evidence to prove that he was in custody during this time. The offence which applicant was charged with was baillable. Further, the Arbitrator did find that there is no reason provided as for 3 months period from the time the applicant was released from prison on 14th April, 2015, to the time of filing the dispute before the Commission on 17th July, 2015. 5 Thus, the Arbitrator found he was hand tied to entertain the dispute on account of limitation which goes to jurisdiction under Rule 10 (1) of the Labour Institution (Mediation and arbitration) Rules, G.N. No. 64 of 2007. Even the good principles of natural justice could not be exercised by any Court or Arbitrator without having jurisdiction first. To support this position the respondent cited case of Glory Moshi vs. Immessina, Misc. Application No. 41 of 2014, (Unreported), without attaching the decision. In rejoinder the applicant retaliated his submission in chief. There are two issues for determination in this application as provided hereunder:- 1. Whether the Commission for Mediation and Arbitration lacked jurisdiction to entertain the labour dispute as it was held by the trial Arbitrator. 2. Whether the applicant was denied right to be heard by the Commission. In determination of the first issue whether the Commission for Mediation and Arbitration lacked jurisdiction to entertain the labour dispute, I find it relevant to look at the provisions of law providing for time limitation 6 for referring the dispute to the Commission. Rule 10 of Labour Institutions (Mediation and Arbitration) Guidelines Rules, G.N. No. 64 of 2007, provides for time limitation for referring a labour dispute to the CMA. The rule provides that, I quote; "10. (1) Dispute about the fairness of an employee's termination of employment must be referred to the Commission within thirty days from the date of termination or the date that the employer made a decision to terminate or uphold the decision to terminate. (2) All Other disputes must be referred to the Commission within sixty days from the date when the dispute aroused." However, the Commission for Mediation and Arbitration have discretion to condone any failure to comply with time limitation which is provided by the Rules. The law provides in Rule 31 of Labour Institutions (Mediation and Arbitration) Guidelines, GN. 64 of 2007 that; "The Commission may condone any failure to comply with the time frame in these rules on good cause." The evidence available in the record shows that the applicant was terminated from employment on 15th November, 2011, for absenteeism. Aggrieved by the respondent decision to terminate him, the applicant 7 referred the dispute to the CMA on 17th July, 2015, which is almost 3 years and 8 months from the date when the dispute aroused. The applicant also filed form for condonation where the complaint was condoned on 8th April, 2016, by Hon. J. Muhanika, Mediator. After being condoned, the complaints proceeded with mediation which failed and later on the arbitration process proceeded. It was during delivering of the award when the Arbitrator decided to dismiss the dispute for being referred out of time. Both parties agree that the trial Arbitrator dismissed the dispute before him while there was a ruling of the same Commission condoning the same. The applicant is of the opinion that the Arbitrator erred in his decision. On the other hand the respondent is of the view that the Arbitrator was not aware of the ruling of the Commission condoning the dispute and that the act of the trial Arbitrator dismissing the application was legal and justified. I have read the Ruling of the Mediator, Muhanika J., on application for condonation dated 8th of April, 2016. The Mediator condoned the application and allowed for the dispute to be heard out of the time limit provided by the law. Therefore, the act of the trial Arbitrator to dismiss the dispute which has already been condone by the same Commission was wrong and not justified. Even if the trial Arbitrator was not aware of the decision of the 8 Mediator that condoned the dispute at the time of writing the award as long as there is decision of the Commission condoning the same the Arbitrator was barred from deciding the same issue. Therefore, it is my finding that the trial Arbitrator erred to dismiss the dispute for being referred out of time while the dispute was properly and legally condoned by the same Commission. Unfortunately, the decision of the trial Arbitrator to dismiss the dispute which was properly condoned by the same Commission was done suo moto without availing the parties to the dispute to be heard on the issue. This is the reason the Commission ended to dismiss the application erroneously. The Court of Appeal of Tanzania in the case of Wegesa Joseph M. Nyamaisa vs. Chacha Muhogo, Civil Appeal No. 161 of 2016, Court of Appeal of Tanzania at Mwanza, (Unreported), cited with approval its decision in the case of EX- B.8356 S/SGT Sylvester S. Nyanda Vs The Inspector General Of Police & The Attorney General, Civil Appeal No. 64 of 2014 (unreported), where the Court held that: "There is similarly no controversy that the trial Judge did not decide the case on the issues which were framed, but her decision was anchored on an issue she framed suo motu which related to theJurisdiction of the court. 9 On this again, we wish to say that it is an elementary and fundamental principle of determination of disputes between the parties that courts of law must limit themselves to the issues raised by the parties in the pleadings as to act otherwise might well result in denying of the parties the right to fair hearing." In the present application the right to be heard guaranteed to the parties was prejudiced by the act of trial Arbitrator to raised jurisdictional matter suo motu and determined them without affording the parties an opportunity to be heard. This has made the entire proceedings and the Commission Award to be a nullity. As result, I quash the proceedings in labour dispute no. CMA/DSM/ILA/R.417/2015 before the Commission and it's award is hereby set aside. The application is reverted back to the Commission for Mediation and Arbitration where the Arbitration process will start a fresh before another Arbitrator within 60 days from the date of this Judgment, if the applicant is still interested to pursue it. No order as to cost. A. E. MWIPOPO \ JUDGE V 11/09/2020 10