kearsley travel and tours vs khaled yusuph kiponza 2022 tzhcld 925 23 september 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 360 OF 2021 KEARSLEY TRAVEL AND TOURS......... ..................... APPLICANT VERSUS KHALED YUSUPH KIPONZA......................... RESPONDENT (From the decision of the Commission for Mediation and Arbitration ofDSM at liaia) (Msuri: Arbitrator) Dated 30th December, 2020 in REF: CMA/DSM/ILA/1217/18 JUDGEMENT 19th & 23tfl September, 2022 Rwizile, J This application is for revision. The applicant has asked this Court to revise, quash and set aside the award of the Commission for Mediation and Arbitration (CMA). Its brief background is that, the respondent was employed by the applicant in an unspecified period of time contract working as a driver guide. He was employed since 2007. He enjoyed the salary of TZS. 350,000.00 per month. He allegedly absconded from work after expiration of his due leave. He then filed a labour dispute at the CMA for unfair termination, claiming that his termination was not substantively and procedurally fair. The i award was in his favour. The CMA ordered payment of one month in lieu of notice, severance pay and salary for 12 months in compensation. The applicant was not satisfied with the decision of the CMA, hence this application. The application is supported by the affidavit of Ayubu Maya, a Human Resource Manager of the applicant stating grounds for revision as follows; i. That, the CMA had no jurisdiction to entertain the labour dispute No. CMA/DSM/ILA/1217/18 on the reason that, there was no legal dispute regarding termination between the applicant and respondent. ii. That, whether it is legal and equitable for CMA to fail to determine the preliminary objections on point of law raised by counsel for the applicant on 20* October, 2020 and 26h September, 2019; that, in labour dispute No. CMA/DSM/ILA/1217/18, the CMA had no jurisdiction to determine the dispute and respondent filed the dispute against a wrong party, hence the applicant was never a party to the labour dispute. 2 The applicant was represented by Mr. Ceasor Sebastian Kabissa, learned Advocate while Mr. Kheri MacDavies Kusekwa, learned Advocate appeared for the respondent. The application was by written arguments. The order was for the applicant to file her written submission on or about 05th September, 2022, the respondent to reply on or about 12th September, 2022 and a rejoinder on or about 16th September, 2022. When the application was set for orders to ascertain if the order for written submission was complied with, the respondent did not appear and did not file his submission. Therefore, there is no submission for the respondent. This uncalled-for absence, precipitated to proceed exparte with one sided submission of the applicant. Mr. Kabissa on jurisdictional issue of the CMA, submitted that the labour dispute instituted was prematurely filed. He stated that Dwl testified that the respondent was never terminated and so his claim for unfair termination could not stand contrary to section 3(l)(b) read together with section 110(l)(2), sections llland 112 of the Evidence Act [CAP. 6 R.E. 2019]. In that perspective, he stated that the respondent ought to prove, he was terminated. He continued to submit that requiring an explanation from the respondent on abscondment cannot amount to termination. He 3 supported his point by the cases of James J. Mboma v Insight Security, Revision No. 348 of 2019, Said Seleman and 13 Others v A-One Product and Buttlers Ltd, Labour revision No. 890 of 2018, Abdulrazak Jabilly Nabibakshi v SeeSweet Royale Confectionery Ltd, Revision No. 771 of 2019 and C.R.J Construction Co. (T) Ltd v Maneno Ndalije 8i Another, Labour Revision No. 205 of 2015. Mr. Kabissa submit further that the work station of the respondent was at Arusha, the dispute also arose at Arusha but the matter was heard at CMA Ilala in Dar es Salaam contrary to rule 15(l)(e)(ii) and (iii) of the Labour Institutions Act, No. 7 of 2007 read with rule 22(1) and (2) of Labour Institutions (Mediation and Arbitration) Rules G.N. 64 of 2007. It was further argued that, the respondent was to be perhaps permitted by CMA Arusha to file the same elsewhere. To support his point, he referred me to the cases of Tanzania International Container Terminal Services Limited v Ernes Kalaghe, Labour Revision No. 634 of 2019, Christian Michael v Ujenzi Secondary School, Labour Revision No. 178 of 2013 and Francis Kuringe v Singita Grumeti Reserve, Revision No. 37 of 2013 LCCD where it was held that; 4 "It is the established position in law that a dispute shall be mediated or arbitrated by the Commission at its office having responsibility for the area in which the cause of action arose, unless the Commission directs otherwise". He was of the view that the proceedings by the CMA is a nullity. On the second ground of revision, it was argued by Mr. Kabissa that they raised preliminary objections on point of law on 20th October, 2020 and 26th September, 2019 that the respondent filed the dispute against a wrong party. He stated that the applicant was never a party to the labour dispute. He said further that on 28th August, 2020 the arbitrator delivered a ruling on preliminary objection and said the objection would be determined in the course of hearing. But the record shows, that was not done. Finally, he keenly pointed out that he decided not to determine the same deliberately. On 21st October, 2020, he argued, another preliminary objection on point of law was raised on territorial jurisdiction of CMA but was not heard or decided upon. He submitted further that none of the preliminary objections were heard, withdrawn or conceded even though they are serious material irregularities which go to the root of the case. He stated that the law is clear that whenever preliminary objection is raised, unless it is withdrawn 5 or conceded, it has to be determined before going to the merits of the case. He supported his point by referring to the cases of Benjamin P. Masota v Mrs. Esther Maneno, Civil Appeal No. 84 of 2010, Alex Situmbura v Mohamed Nawayi, Revision No. 31 of 2021, Thabit Ramadhan Maziku and Another, Civil Appeal No. 98 of 2021 and Bank of Tanzania Ltd v Devran P. Valambia, Civil Application No. 15 of 2002 Court of Appeal (unreported) it was stated; "The aim of a preliminary objection is to save the time of the court and of the parties by not going into the merits of the application because there is a point of law that will dispose of the matter summarily" He then prayed for the Court to quash and set aside the award and the proceedings of the CMA. To determine the first issue, I have to say, jurisdiction is a serious issue that ought to be determined first before going to the merits of the application. The record has it that, on 21st October, 2020 the respondent raised a preliminary objection on territorial jurisdiction of the CMA to determine the dispute. But records do not show if the CMA determined the same. According to Mr. Kabissa two preliminary objections were raised 6 but not determined. That is, one on territorial jurisdiction and on filing the application prematurely. The arbitrator only heard the preliminary objection on suing the wrong party. It seems arbitrator reserved determination of the objection on reasons that he would determine it in the course of hearing the main application. It is tragic that he did not ultimately rule on it. This means three preliminary objections raised, one was heard and the other two not heard, but were all not determined. There are multiple of cases on how to deal with preliminary objection. One of them is the case of Pangea Minerals Ltd v Petrofuel (T) Limited, Power Roads (T) Limited and Lycopodium Tanzania Limited, Civil Appeal No. 96 of 2015, Court of Appeal of Tanzania at Dar es Salaam at page 5 it was held: - "/Is the practice of the Court demands, the preliminary objection has to be disposed first before determination of the appeal and cross appeal on merit. The trite law is that; when preliminary objection is raised, it has to be delt with first to its finality before determining the main application on merit. In this application therefore, it is crystal clear that the arbitrator did not determine, if the CMA Ilala had territorial jurisdiction to determine the i dispute that arose from Arusha. This means, the same had no justification to proceed to determine the dispute on merit. In that stance, this court cannot as well determine the same issue because it was not determined before. At law, the practice has it that when it appears, the preliminary objection raised was left undetermined, the remedy is to have it determined first before another step can be taken. Faced with a similar situation, Court of Appeal, in the case of R.S.A. Limited v Hanspaul Automechs Limited & Govinderajan Senthil Kumal, Civil Appeal No. 179 of 2016, Court of Appeal of Tanzania at Dar es Salaam at page 16-17 had this to say: - "I4fe direct the case file to be returned to the High Court for it to determine the points of objection raised after hearing the parties before proceeding to determine the merits of the case." From the foregoing then, I find this application to have merit. It is allowed. CMA award is hereby quashed and set aside. The record is remitted to the CMA to first determine the Preliminary objections. This being a labour matter, each party has to bear its own costs. A. K. Rwizile JUDGE 23.09.2022 8