lake trans limited vs pius mero 29 others 2023 tzhcld 1353 18 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 33 OF 2023 (From the decision o f the Commission for Mediation and Arbitration at Ilala in Labour Dispute No. REF: CMA/DSM/ILA/541/21/14/22, Msina, H.H.: Arbitrator, Dated 22nd December, 2022) LAKE TRANS LIM IT ED ...................................................... APPLICANT

VERSUS PIUS M ER O ................................................................ 1st RESPONDENT FADHILI JUMA K IM A R O .......................................... 2nd RESPONDENT EMMANUEL E. N G A IZA .............................................3rd RESPONDENT ALLI HAMAD H AM D UN I........................................... 4™ RESPONDENT ELIASASALUM J U M A ............................................... 5™ RESPONDENT SHABANI RAMADHANI CHEM C H E M ...................... 6th RESPONDENT ABBAS SAID K IB W A N A ............................................ 7™ RESPONDENT MOHAMED SALUM S E I F ........................................... 8™ RESPONDENT MOHAMED MAHMOUD SH AB AN .......................... 9™ RESPONDENT KHALIFA SALUM H A M A D ....................................... 10™ RESPONDENT EGBERT M U G O H A ................................................... 11™ RESPONDENT ARAFAT M W AN JALA............................................... 12™ RESPONDENT STANLEY ALEXANDER M U SH I...............................13™ RESPONDENT SALUM SELEM AN I.................................................. 14™ RESPONDENT HEMED BA K A R I.......................................................15™ RESPONDENT ZUBERI REMI M S O F E ............................................. 16th RESPONDENT RAMADHAN ABDALLAH N Y A N G I...........................17th RESPONDENT SEIF HAMISI

NYONGONYEKE............................... 18th RESPONDENT HAMZA MUSTAFA Y A L E G E ..................................... 19™ RESPONDENT LEONCE PETER G A L L A ............................................20th RESPONDENT MUHIDINI S H A H A ...................................................21st RESPONDENT MALANDA AUGUSTINO CH IG O LO ........................ 22 nd RESPONDENT MBARAKA ISSA D E G E ............................................ 23 rd RESPONDENT THEODOS EMMANUEL M IS O R I............................. 24™ RESPONDENT EMMANUEL ELINISA M B O Y A .................................25™ RESPONDENT JUMA SHABANI M A Z IK U ........................................26™ RESPONDENT EMMANUEL ISSAC D A N I........................................27™ RESPONDENT BONIFACE M W AKAJILA......................................... 28™ RESPONDENT HAM ADI MUG ASH A .................................................29™ RESPONDENT MAULID J U M A ......................................................... 30™ RESPONDENT

JUDGEMENT 26th June - 18th July, 2023 OPIYO. J The applicant prayed for this Court to call the proceedings and thereafter to revise, quash and set aside the award of the Commission for Mediation and Arbitration (CMA) in a Labour Dispute No. CMA/DSM/ILA/541/21/14/22 by Msina, H.H. (Arbitrator) dated 22nd December, 2022. 2 Background to the matter is that respondents were employed by the applicant under the permanent contract as drivers at different times. Respondents having claim of unfair termination, they filed for a Labour Dispute at CMA. The matter was heard and the award was in their favour. Being aggrieved, the applicant filed for Revision Application having No. 561 of 2019. As a matter of procedure, the call for records was issued for CMA Kibaha to bring the records. So, that the court could properly hear and determine the matter. There was nowhere to find the CMA file the High court's efforts proved futile. The order was then given to remit back the file to the CMA for reconstruction of records of Labour Dispute No. CMA/PWANI/KBH/627/2017 and if that proved impossible, then rehearing was inevitably be embarked on by retaining the same Labour Dispute number. The matter was reheard as Labour Dispute No. CMA/DSM/ILA/541/21/14/22 and the award was again in favour of the respondents. Being dissatisfied, the applicant opted for this Revision Application. This application is

supported by the applicant's affidavit sworn by Macrina Chale, Principal Officer of the applicant having grounds for xevision as a) W hether o r n ot CMA Ila la had ju risd iction to hear and deliver the im pugned award. b) W hether o r not Pius M ero (P W 1) le g a lly qualified to represent the rest o f the respondent. c) W hether o r n ot PW 1 evidence was reliable w hile he had testified during hearing that he does not rem em ber the dates h is co­ com plainants were em ployed and does not rem em ber a ll h is co- com piainants. d) W hether o r n ot it was proper fo r the Com m ission fo r M ediation and Arbitration to entertain the dispute and deliver an aw ard contrary to the directives and an order o f this court. e) W hether o r n ot was proper fo r the Com m ission and M ediation to deliver an aw ard granting com pensation fo r unfair term ination ignoring the p a rtie s' evidences that the respondents were not term inated. f) W hether o r n ot there was evidence leading to the arbitrator's conclusion that the respondents were unfairly term inated. g) W hether o r n ot the CMA aw ard on com pensation fo r unfair term ination was properly arrived given the evidences tendered by both parties. h) W hether o r n ot it was proper fo r the Hon. A rb itrator to grant com pensation relying on evidences contained in the respondent's fin a l subm ission, an a ct which denied the

applicant's righ t to be heard. ■ 4 The hearing was by way of written submission. Both parties were represented. Mr. Heriolotu Boniface was for the applicant and Mr. Pasience Mlowe appeared for the respondent. Mr. Boniface submitted that the initial Revision (Revision No 561/2019) was against the decision of CMA in "MGOGORO WA KIKAZI NA. CMA/ PWANI/KBH/ 627 /2017" delivered by Honourable Mkombozi. Z. B (Arbitrator. The Complaint was heard at CMA, Kibaha Pwani and the High Court in that revision was making orders to the CMA Kibaha to deliver the records until when it ordered the matter to be re-heard. However, the rehearing has been made at CMA, Ilala- the Commission which did not hear the complaint in the first instance. Also that, the high court decision was to the effect that, the original number of the dispute be retained. He argued that, it meant that the re-hearing was to be made at Kibaha so that the case number could be retained to be the same, and therefore by taking the matter to another CMA (ie Ilala), there is no way the case number would bear the initials of PWANI/KBH while it was heard in Ilala. Therefore, it is very clear that the intention of the Court was for this matter to be re-heard at CMA Kibaha and not CMA Ilala, thus the CMA Ilala lacks jurisdiction to re-hear the matter. He continued that the ruling of had specific orders that the case number should be

the same but on this matter the numbers are different, it changed from CMA/PWANI/KBH/627/2017 to CMA/DSM/ILA/541/21/14/22. It was also held that the matter be heard within six weeks of which the same was heard for over a year (from 15th November, 2021 to 22nd November, 2022). He added that no records shows that there was an application for extension of time and so for him the decision of the CMA is nullity ab initio. He then prayed for the CMA award to be set aside. Countering the above argument the above argument Mr. Mlowe submitted that the court did not order CMA Kibaha to entertain the matter, it just referred to CMA. He stated that the decision of which the applicant filed its revision No. 561 of 2019 was tendered at Kibaha but it was heard in Dar es Salaam, Ilala due to the fact that the presiding arbitrator in Kibaha transferred the case to it. For him the CMA Ilala had jurisdiction to determine the matter because it was the custodian of records and not Kibaha. He added that this case was never heard at Kibaha though the case number was retained the same at CMA Ilala. For him the applicant's submission that CMA Ilala has lacked jurisdiction does not stancLand lack He continued to submit on the issue of retaining the same Dispute Numbered as ordered is a technical fault that cannot vitiate justice which is cured by overriding objective principle as provided under sections

3A (1) and (2) and 3B (1) of the Civil Procedure Code [CAP. 33 R.E. 2019]. On the issue of the matter taking more than the ordered time for its rehearing, he submitted that applicant made the hearing to be difficult for his non-appearance and failure to procure witness to come and defend the case. On the issue of not filling an application for extension of time, he submitted that CMA's spirit is to simplify procedures not like ordinary courts. He supported his point, by referring to the case of Kinondoni Municipal Council vs Rupia Said and 108 Others (supra) at page 7. Rejoining, Mr. Boniface had nothing new to add on he in essence reiterated what he submitted in chief. Having gone through proceedings and submissions of both parties, I find it necessary to firstly determine the jurisdictional issue raised before tuckering other issues raised. This is of whether CMA Ilala had jurisdiction to entertain the matter. The issue of jurisdiction has been stated in several cases. In the case of Tanzania Revenue Authority v Tango Transport Company Ltd, Civil Appeal No. 84 of 2009 as was referred in the case of Mwananchi Communications Limited & Others v Joshua K. Kajula and 2 Others, Civ. Appl. No. 126/01 of 2016, CAT at Dar es Salaam at page 13 that: - "Jurisdiction is the bedrock on which court's authority and com petence to entertain and decide m atters re sts." In the matter at hand,

it is not disputed that the former application was heard at Kibaha with the Labour Dispute No. CMA/PWANI/KBH/627/2017. Also, it is not in dispute that the order of this court in the Revision No. 561 of 2019 was for the reconstructing or rehearing of the dispute by retaining the previous number. Also, parties are in agreement that the matter was reheard at CMA having Labour Dispute No. CMA/DSM/ILA/541/21/14/22. That makes it obvious that, same was contrary to what was ordered. For easy reference it was ordered that: - "Owing to that, I strike out th is application with an order th at the CMA reconstruct the records of Labour Dispute No. CMA/PW ANI/KBH/627/2017. The reconstruction shall, be conducted by eith er gathering notes ( if parties are in possession o f records) o r else which I fin d to be the m ost appropriate way, the dispute be re­ heard afresh; the num ber o f the dispute sh a ll be retained to the same num ber as I have quoted above." So long as it is undisputed that CMA was and is Kibaha is still in existence, there was no need of re-hearing the matter at CMA Ilala. Rule 22(1) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 207 provides that: - "A dispute sh a ll be m ediated o r arbitrated by the Com m ission a t its office having responsibility fo r the area in which the cause o f action arose, unless the Com m ission directs otherw

ise" As it has been provided under the CMA FI that the dispute arose at Kibaha - Picha ya Ndege the matter was supposed to be heard there. Not only that the order of this court in the Revision No. 561 of 2019 directed for the matter to be heard where it was instituted by mentioning its dispute number. This proves that, CMA Ilala had no jurisdiction to hear and determine the matter. Rule 10(1) of the Labour Institutions and Code of Conduct for Mediators and Arbitrators Rules, G.N. No. 66 of 2007 states that mediators and arbitrators have to observe their jurisdiction first in order to entertain the matter, it provides that: - "M ediators and A rbitrators sh a ll strive to observe th eir ju risdiction com petency on ju risd ictio n a l issues as conferred upon by the A cts." In the case of Tanzania International Container Terminal Services Limited vs Ernest Kalage, Revision No. 634 of 2019, High Court at Dar es Salaam at page 7 that: - "In the circum stances o f this case, it is also m y considered view that, the CMA Ila la had no ju risd iction to entertain th is m atter because the cause o f action arose within the territo rial ju risd ictio n o f CMA Tem eke." It is therefore my finding that, CMA Ilala had no jurisdiction to entertain this application. The hearing it conducted is thus a nullity. Its award and the entire proceedings are hereby nullified for CMA-Ilala want of jurisdiction. The file is remitted back to CMA Kibaha where the dispute arose for re-hearing as per this court order in Revision No 561/2019 dated 15/11/2021. The same shall be re-heard and concluded within six weeks from 25th July, 2023. As this is a labour application, I make no costs are ordered.