MISC NO 5543 OF 2024 KIBAHA INDEPENDENT PRE AND PRIMARY SCHOOL VRS LIDYA SHIRIMA 3 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION MISC. LABOUR APPLICATION NO. 5543 OF 2024 CASE REFERENCE NO. 202403151000005543 BETWEEN KIBAHA INDEPENDENT PRE AND PRIMARY SCHOOL..... ........... APPLICANT VERSUS LIDYA SHIRIMA & 3 O TH ER S............................................... RESPONDENTS RULING Date of Last Order: 25/06/2024 Date of Ruling: 04/07/2024 MLYAMBINA, J. In this predicate labour matter, the Court is being asked to establish the procedural remedy against the Settlement Deed illegally recorded before the CMA. Can it be challenged by way of review, or revision before the Labour Court? Or should it be challenged before the Mediator or Arbitrator who entertained such settlement at the CMA? Briefly, the Applicant before this Court prayed for the grant of an extension of time within which to file a memorandum of review against the settlement agreement order made on 02/10/2023 by Hon. Joyce Lyimo, Arbitrator in CMA/PWN/KBH/58/2023 and to make any other relief(s) which deem just and fit to grant. It is not disputed by the Applicant that the Respondents were her employees who worked as teachers. She alleges to have faced financial crisis which led for her to come into agreement in several meetings held with the managerial staff, all employees and managerial team, all employees and trade union dealing with all kinds of employees (CHODAWU), and as a result she issued letters of redundancy to some staffs including the Respondents. Dissatisfied with the Applicant's act, the Respondents filed a Labour Case at the Commission for Mediation and Arbitration (herein CMA) which was registered as CMA/PWN/KBH/58/2023. The matter ended at mediation stage by issuance of settlement agreement between the parties. It is not in dispute that under the provisions of Section 87(4) o f the Employment and Labour Relations Act Cap 366 Revised edition 2019 (herein ELRA) the decision reached on mediation may be enforced in the Labour Court as the Decree of the Court of competent jurisdiction. Again, the law is very clear under the provision of Section 87(5) o f ELRA (supra) that the CMA may reverse a decision made on mediation. The Applicant herein alleges that the settlement agreement reached was without the consent of either the Chairman of the Board or Board of Directors of Kibaha Independent Limited Company, hence the filing of this application for review supported by the affidavit of Mr. Yusufu Said Mfinanga, a Chairman of Board of Directors of the Applicant. Before the hearing of the main application began, the Learned Advocate for the Respondents raised a preliminary objection that: This application is totally un attainable before the Court for containing defective prayer which cannot be granted by this honourable Court. Both parties were represented by Learned Advocates. Mr. Saiwello T J. Kumwenda appeared and argued on behalf of the Applicant and Mr. Innocent Joseph Mkenda appeared and argued on behalf of the Respondents. By the order of this Court dated 27th May, 2024 parties' representatives argued both the preliminary objection and the main application by way of written submissions. Mr. Mkenda submitted that there was no decision that was made by Arbitrator or Mediator but rather there is parties' settlement in that case. Thus, any attempt to challenging the validity of deed of settlement should be brought to the attention of the Arbitrator by an application to set aside the deed of settlement and not by way of review before this Court. In support of his point, he referred to the case of Air Tanzania Co. Ltd v. Capt. Msami Mmari & Sued A. Majungu, Revision No. 364 of 2020, High Court of Tanzania. The Respondent was of settled position that this application is not a proper remedy. He then cemented his point by referring to the case of Naima Suleiman (suing as a next friend of Zakaria Omary Salumu Shighela (Minor)) v. Idu Busanya Mugeta (Administrator of the late Lazaro Busanya) & 5 Others, Civil Application No. 538/8 of 2019, Court of Appeal of Tanzania at Mwanza. Mr. Mkenda concluded that the law provides a clear appropriate remedy for settlement agreement and prayed this application for review be dismissed with cost. Against the preliminary objection, Mr. Kumwenda submitted that Section 94(l)(b)(i) o f the ELRA (supra) states clearly that the Labour Court can review the Award of the Arbitrator. He went further stating that the Award is an ex-parte one because a person who was ordered by the Respondent's Director to go to the CMA and hold brief so that the matter could be adjourned to another date, erroneously assumed power by including the company into monetary implication while he was not conferred with such powers (special power of attorney). Mr. Kumwenda was of view that a situation of this kind cannot be settled by virtue of revision but by review. He added that; as CMA cannot review its decision, hence the filling of this application is proper. He then prayed for the preliminary objection to be overruled. In rejoinder, Mr. Mkenda stated that Applicant did not address on whether their application is competent and is attainable before this Court so that they can be granted time to file their memorandum of review. He added that there is no dispute that parties settled their dispute at CMA and that they consented to it. He finalised by stating that review is not a proper remedy for settlement agreement. Basing on parties' representatives' submission, the issue to be determined by this Court before going to the merits, if a need be, is on; whether the preliminary objection raised has merit. In the dispute at hand, Mr. Mkenda for the Respondent stated that since the CMA award arise from parties' agreement during mediation, the proper forum for the Applicant to take would be by the application of setting it aside at the CMA. While Mr. Kumwenda for the Applicant stated that since the settlement agreement acquired the status of the Award, the application for review is the proper one. There is no dispute that there is a settlement agreement filed at the CMA. The dispute, if extension of time is granted would be; whether the one entered settlement agreement with Respondents on behalf of the Applicant was authorised to do so. I'm of the humble view that if application of extension of time is granted, the Applicant will need to prove the allegation. As such, this Court will lack jurisdiction of entertaining review of the Settlement deed recorded by the Mediator. It is only the CMA which recorded the challenged Settlement can reverse the decision reached erroneously through mediation in terms of Section 87 (5) o f ELRA (supra). I understand that nothing can be produced as evidence or used in this Court or before the CMA for determination against what transpired at the mediation proceedings before the CMA. Rule 17(1) and (2) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f2007 readsas follows: Rule 17(1) No person may refer to anything said at mediation proceedings during any subsequent proceedings unless the parties agree in writing. 17(2) No person, including a Mediator, may be called as a witness during any subsequent proceedings in the Commission or in any Court to give evidence about what transpired during mediation. However, Rule 17(1) and(2) (supra) aims to protect confidentiality procured during mediation. It does not forbit the Mediator to set aside a settlement deed obtained illegally, that is why Section 87 (5) o f ELRA (supra) allows the CMA to reverse a decision reached on mediation. Further, it is true the law under Section 94(l)(b) (i) o f ELRA (supra) as referred by Kumwenda Advocate for the Applicant specifically gives power this Court to review CMA Award. The question is; is the settlement agreement an award? In my opinion No. The reason is that Rule 17(1) and (2) of GN. No. 67 of 2007 (supra) only provides for the enforcement of the settlement agreement. It does not state that settlement agreement is an Award. Its marginal note states specifically that "Enforcement settlement agreement". It is my view that the recognition of the settlement agreement under Rule 17 (I) and (2) o f GN No. 67 o f2007(supra) is to make it enforceable (during execution proceedings) in the eyes of the law since parties themselves entered into such agreement. No evidence was taken, no determination was made and so no Award was made by the Mediator or Arbitrator. In the case of Karatta Ernest D.O & 6 Others v. The Attorney General, (Civil Appeal No. 73/2014) [2016] TZCA 197 (25 January 2016) as it was referred in the case of Air Tanzania Co. Ltd v. Capt. Msami Mmari & Sued A. Majungu (supra), it was held that: The observation that was made by the learned judge when the Appellants went back to the High Court to question the Deed of Settlement sufficiently explained the role of the Court in as far as the Deed of Settlement is concerned. It was an agreement between the parties alone. How they arrived to the terms of settlement is a matter known to them alone. It was not a case in which evidence was given. What the Court was requested to do was to record what the parties had agreed upon. As Kumwenda Advocate for the Applicant submitted, Section 94(l)(b)(i) o f ELRA (supra) among other things provides for review of CMA Award and in the light of the decision in the case of Air Tanzania Co. Ltd v. Capt. Msami Mmari & Sued A. Majungu (supra), it is my opinion that settlement agreement is not an Award. For that matter it does not qualify to be reviewed. Again, in the case of Mohamed Enterprises (T) Limited v. Masoud Mohamed Nasser, Civil Application No. 33 of 2012, Court of Appeal of Tanzania at Dar es Salaam (unreported), the Court held inter <?//athat; ...consent decree cannot be set aside by an appeal, review or by a rule obtained on motion. A consent decree operates as an estoppel and it is valid and binding unless on an application it is set aside by the Court or CMA or Tribunal which passed it. In the premises of the decision in Mohamed Enterprises (T) Limited case (supra), the only available remedy to a party to a settlement agreement or consent decree is to approach the CMA or the Court or the Tribunal which passed or recorded and sealed it, to avoid or set aside such settlement agreement upon establishing that there was no compromise. Basing on the allegation raised by the Applicant through her advocate, the reason for the intended review is for this Court to consider that the one who entered the settlement agreement on behalf of the Applicant was not an authorised person. It is my understanding that such allegation needs evidence to be proved as the one who alleges must prove. In the case of Air Tanzania Co. Ltd v. Capt. Msami Mmari & Sued A. Majungu (supra), this Court held that: This takes me to the next question, the remedies available to a party under the circumstances. Particularly in the case at hand, the Applicant is challenging the legality of the settlement agreement. The remedy available therein is to make an application to set aside the award on the allegation of fraud on the source, the agreement. However, the application has to be lodged at the Court (in this case the Commission) where the settlement Award was recorded and an award extracted. In the end I therefore hold that the application for extension of time ought to be filed before the CMA which recorded the challenged settlement agreement. Consequently, the preliminary objection raised is sustained. This application for extension of time to file an application for review of settlement agreement has no legal stands in this Court, it is hereby struck out with no order as to costs as this is a Labour matter. Y J. MLYAMBINA JUDGE 04/07/2024 Ruling delivered and dated 4th July 2024 at 14:10 hours in the presence of Mmeta Nsanya, Legal Officer of Kumwenda Advocate for the Applicants and Innocent Joseph Mkenda, Advocate for the Respondents. Right of appeal explained.