letshego bank t ltd vs samson mwita 2022 tzhcld 94 23 march 2022

THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 100 OF 2021 BETWEEN LETSHEGO BANK (T) LIMITED APPLICANT CHACHA SAMSON MWITA RESPONDENT JUDGMENT Date of last order: 7/03/2022 Date of Judgment: 23/3/2022 B.E. K. Mganga, J (Q) On 19th March 2013 app^cant^mployed the respondent as Client Officer. In the course ofi their employment relationship, applicant promoted the respondentxtcr the position of Branch Manager. In the course of the same ^employment, it happened that their employment relationship^wentusour, as a result, on 8th April 2019, the applicant felt that the respondent breached responsibility policy. Due to that, applicant servedMtie respondent with disciplinary charge that the latter has breached responsibility policy. Respondent denied the charge. On 15th April 2019, applicant served the respondent with a notice to attend the disciplinary hearing. On 18th 2019, respondent attended the said disciplinary hearing and its outcome was released on 6th May 2019 when i the respondent's employment was terminated due to breach of the applicant's responsibility policy. Respondent was dissatisfied with the said termination, as a result, on 13th May 2019 he filed Labour dispute No. CMA/DSM/ILA/381/19 before the Commission for Mediation and Arbitration henceforth CMA at Ilaia praying to be reinstated on ground that tefminatiok^of his employment was unfair both substantively and procedurally. It happened that when the dispute was schedule^rj^earing, respondent did not enter appearance on 4th November^ 019, 2nd December 2019, and 28th January 2020 consecutively; Due to the said non-appearance, (( applicant prayed for dismissal qf^^dispute for want of prosecution. On 28th January 2020, Msina^HJ-L, arbitrator, granted the prayer by the applicant and dismiss^djf^dispute for want of prosecution. On ^W^February 2020, respondent filed an application for restoratio^or the dispute that was dismissed for want of prosecution. The^affidavit in support of the application was sworn by Mr. Frank Chacha, counsel for the respondent. In his affidavit, Mr. Chacha deponed that he failed to enter appearance on 2nd December 2019 because he was sick. He deponed further that his failure to enter 2 appearance on 28th January 2020 was due to traffic jam that was caused by heavy rainfall. Applicant filed the counter affidavit sworn by Angelist Misanya, her principal officer, opposing the application. In the counter affidavit, the deponed stated that the opening statement contains mobile<phones and emails for communication that could have been used^by^h^respondent to communicate his predicament to the applicant and tne arbitrator before issuing a dismissal order. The deponent^tated further that the application for restoration was not timelv filed. x> submissions by the parties, delivered a ruling restoring the dispute. In the said ruling, the arbitr^oi^held that the dispute was dismissed due to negligence of counsei^for^the respondent and that it will be unfair to deny the ?espondent^nght to be heard due to negligence of his counsel. Applicant^/as aggrieved with that ruling, hence this application. In the affida^i^bf Angelist Misanya, the principal officer, in support of the notice of application, raised three grounds namely:- 1. That the honourable arbitrator having found that the respondent has had not adduced sufficient reasons for no-appearance, erred in law in ordering restoration of the referral. 3 2. That the honourable arbitrator's decision is not supported by evidence on record. 3. That the arbitrator raised suo moto during writing of the award an issue of negligence of the advocate and proceeded to decide without hearing the parties. Respondent filed both the notice of opposition and a counter affidavit opposing the application. In the counter affidavit/respondent stated that in granting the application for restoratiorfCf thej^ispute, arbitrator judiciously exercised discretionary powers. By consent of the parties, the app[icanKwas'~disposed by way of written submissions. In his written submissions in support of the application, Mr. Makaki Masatu, learned counsellor the applicant, arguing the 1st ground submitted that respondent did not show sufficient cause for non­ appearance on 28th February 2020, the date on which the dispute was dismissed. Counsel for the applicant cited the case of Mary Daniel k National^Housing Corporation, Civii Application No. 505 of 2016, CAT (unreported) to support his argument that respondent was supposed to show sufficient cause for non-appearance. Counsel for the applicant submitted that traffic jam was not a good cause for non­ appearance. 4 On the 2nd ground, that arbitrator's decision was not supported by evidence on record, Mr. Masatu, learned, Counsel for the applicant submitted that, allegations of negligence of counsel for the respondent were not pleaded in the affidavit in support of the application for restoration of the dispute at CMA. Counsel for the applicantAsubmitted <z\\ o that, the arbitrator erred in law by relying on negligenqe^of counsel for the applicant which was not pleaded hence not evidence omGMA record. On the 3rd ground, counsel for the applrcant^submitted that the arbitrator raised the issue of negligence of counsel for the respondent in the cause of composing the award withoutaffording the applicant right (( to be heard. Counsel for the applicant argued that, that is contrary to the law and cited the Court of Appeal decision in the case of Kluane Drilling (T) Ltd v^Saiyatory Kimboka, Civil Appeal No, 75 of 2006 (unre^orte^^^ support his argument. Counsel for the applicant submitted^that\negligence of advocate cannot be a sufficient cause for thexcourrto exercise its discretionary power. Counsel for the applicant cited the Court of Appeal decisions in the cases of Umoja garage v. national Bank of Commerce [1997] TLR109 and William Shija V. Fortunatos Masha [1997] TLR 213 to support his argument and prayed the application be granted. 5 Mr. Frank Chacha, counsel for the respondent, in his written submissions raised a preliminary objection that the CMA decision is not appealable in terms of section 74(1) of the Civil Procedure Code [Cap. 33 R.E. 2019] because it is interlocutory. He cited the case of Israel Solomon Kivuyo v, Wayani Langoyi and Naishooki wayani O [1989] TLR140 to support his argument. /z \\ z> Responding to the 1st ground of application advanced by the applicant, Mr. Chacha, counsel for the applicar^xsubmitted that, "the non-appearance of advocate in the cas^i^^ue to discretions of the courts in the same day of the case^^m^lyas it that argument, I have, admittedly, failed to understandxwhat^exactly counsel for the respondent meant in this submission. On the i.e., that the arbitrator's decision is not supportedx^^^ence on record, counsel for the respondent submitted that the^ecisibn is supported by evidence and that there were reasons < 'O to supjoopt that non-appearance was not caused by negligence. On the 3rd ground relating to the complaint that the arbitrator raised suo moto the issue of negligence of an advocate during composition of the award and that did not afford the parties right to be heard; counsel for the respondent submitted that, in dispensation of 6 justice, the court is entitled to raise any issue suo mote. Counsel for the respondent concluded by praying that the application be dismissed for want of merit. In rejoinder submission, Mr. Masatu, counsel for the applicant, responding to the preliminary objection raised by counsel for the \\ O respondent in his written submissions, submitted that-^the preliminary objection has been improperly raised as there is no leave sought by the respondent and granted by the court. He argtfe^\that the issue of the <x order being interlocutory was not pleadedxbyothe respondent in his pleadings. Counsel for the applicanbXcited High Court (at Iringa) decision in the case of Henrick Solomon Lupembe and Another k the Deputy Minister^o^Agricuiture and 4 Others, Wise. Civil Application No. 0&o^020t (unreported) to support his argument. CounseAfpr^the applicant submitted that counsel for the respondent^missed the gist of the 3rd ground and went on that, raising an issue^sz/o moto is not bad if parties are afforded right to be heard before the matter is decided. Counsel for the applicant reiterated that, negligence of advocate was not pleaded by the respondent and that applicant was not afforded right to be heard. 7 I should start with the issue of interlocutory raised by counsel for the respondent in his written submissions and complaint by counsel for the applicant that the same was not pleaded to by the respondent. I have examined both the notice of opposition and the counter affidavit filed by the respondent in opposition of this application and find that the „A\ o same was not raised. I have found also that, there is neitherAnotice of preliminary objection filed nor leave of the court sought and^granted. It is my view that, the preliminary objection was^raised from the blue without following procedures. I am alive<^§xt;lqe position that certain preliminary objections on point of law^specifieally the ones touching the o jurisdiction of the court, can be raised-at any stage. But the preliminary objection raised by counselor the respondent in his written submission in this application is<<K^^ongst. Invitation by the respondent to the court to deal with^n-procedurally raised preliminary objection is an enticemen^^^the court of law should ignore the law relating to procedureynd turn itself into Kangaroo court. That solicitation is unacceptable. I have considered facts of this application and grounds raise by the applicant and I am of the view that, acceptance of preliminary objection in the way it was raised, I afraid that it may leave doors open to judicial or quasi officers to ignore the law and exercise their discretionary powers, improperly or unfairly, knowing that doors 8 will be closed against the other party, on pretexts that the matter is interlocutory. I therefore join hands with my learned brother (F. N. Matogolo, J) in Lupembe's case (supra) for not entertaining a preliminary objection raised during written submissions and without leave of the court. Going back to the grounds of application, as poirited^out/herein above, in the affidavit in support of the application for restoration of the dispute that was dismissed for want of prosecution at CMA, counsel for the respondent raised to grounds namely^tha^on 2nd December 2019 he (counsel for the respondent) failed toenter appearance because he was sick. I should point albeit briefly^that^ no evidence was adduced at CMA to prove that counsel for^he respondent was sick. It was also not proved that it was %e^said sickness that caused him not to enter o appearance. Counsellor the respondent deponed further that on 28th date the dispute was dismissed for want of prosecution; he failed to enter appearance due to traffic jam that was caused by heavy rainfall. It is a trite law that a party making application for restoration of a matter that has been dismissed for want of prosecution has to show that there was sufficient cause for non­ appearance on the date the dismissal order was issued. Now, the issue 9 is whether, respondent adduced evidence at CHA proving that there was sufficient cause for non-appearance. As pointed hereinabove, the reason advanced by counsel for the respondent for the said non-appearance on 28th January 2020 was that it was due to traffic jam that was caused by heavy rainfall. In my view, this is not a sufficient ground because o counsel for the respondent was supposed to foresee and use another alternative or else, he was supposed to give informations© the other party and the arbitrator. It was not stated by counsellor the respondent how it happened the said traffic jam and raiqfalkto be selective affecting only himself and not the arbitrator and^ne^applicant who managed to attend at CMA ready for hearir^the^is'pute. The court of Appeal in the case of Phares Wambura ana15 Others v, Tanzania Electricity Supply Company <Umi^aj Civil Application No, 186 of 2016 (unreported) hacTan advantages of dealing with a similar issue as whether traffic^jam justifies non-appearance. The Court of Appeal (Levira, JA0n wambura's case (supra) held:- "I wish to observe once that traffic jam is not and has not been a special circumstance justifying no-appearance of the parties before the Court". Guided by the above decision of the Court of Appeal, and as I have pointed out hereinabove that, there was no evidence that was io adduced showing how rainfall selectively affected and prevented the counsel for respondent alone from appearing at CMA but the said rainfall allowing chance to both the arbitrator and the applicant to attend. I find no logic in the traffic jam and rainfall ground as cause for respondent's counsel non-appearance on 28th January 2020. I therefore^allow this ground. // \\ z> In the 2nd ground of revision counsel for the applicant argued that time of composing the award andthat parties were not afforded right to be heard on that issue. CS^nsel for the respondent submitted that there was evidence on record and further that the arbitrator was entitled to o raise theJssue^in^^order to dispense justice between the parties. With due respectTo^counsel for the respondent, I have examined the affidavit <x fOr in support^of the application filed at CMA seeking to restore the dispute that was dismissed for want of prosecution and find that nothing was deponed that counsel for the respondent was negligent. The said affidavit is the only evidence that was placed before the arbitrator in determination of the application for restoration of the dismissed dispute ii for want of prosecution. The said affidavit was sworn by Mr. Frank Chacha, who incidentally is the same counsel who filed written submissions in this application opposing the application by the applicant. Submission made on behalf of the respondent that counsel was negligent is admission by the said Frank Chacha, advocate that he did ,A\ o not discharge properly his duties as an advocate of the^respondent. In other words, counsel himself admit to be negligent, which\[n my view, may amount to professional misconduct. I am nbfsdre whether, counsel knows the effect of that submission in relation^© professional conducts. as an advocate and the duty he owes?^h^lient especially when his VO client will opt to take an action against"him. But for now, I will not go further. Apart from the foreg’oing, I agree with both Mr. Masatu counsel for the appli^^^ncTJVir. Chacha, counsel for the respondent that in dispensation ofjjustice, the court can suo moto raise an issue that is key fondetermination of the dispute. I am in further agreement with Mr. Masatu counsel for the applicant that in raising the issue suo moto, the court has to afford parties right to be heard. This is the position taken by the Court of Appeal in the case of Margwe Erro and 2 others v. Moshi Mohalulu, Civil Appeal No. Ill of 2014 (unreported), Scan- 12 Tan Tours Ltd v. The Registered Trustees of the Catholic Dioces of Mbuiu, Civil Appeal No. 78 of 2012 (unreported), Mire Artan Ismail and Another v. Sofia Njati, Civil Appeal No. 75 of2008 (unreported) and Kluane's case (supra). In Kluane's case (supra) the Court of Appeal quoted its earlier decision in Njati's case^supra) as ^/\\ o follows:- zZ \\ "we are of the considered view that generally a Judge is duty bound to decide a case on the issue on record and that if there are other^uestions to be considered they should be placed on record and parties be given (an opportunity to address the court on those questions". In the application at hand^the^^^ of negligence of advocate for the respondent was raise by the arbitrator at the time of composing the award and was not placed^before the parties for them to make address. That was an error ori^^of the arbitrator. I therefore allow both 2nd and 3rd In^Kiuane's case (supra) the Court of Appeal quashed the judgment^of the High Court and set aside the orders arising therefrom and remitted the record to the High Court so that the matter can be assigned to another judge if necessary, to consider the issues raised suo mote and afford the parties right to be heard. In the application at hand, I find no need to take that route because the CMA record is clear that 13 the issue raised by the arbitrator was not supported by evidence. In other words, at first place, it was not an issue between the parties. For all explained hereinabove, I hereby allow the application, quash and set aside the CMA award. 14