levina france vs the catholic archidioces of tabora rev brothers gmm 2023 tzhc 17376 16 may 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA (LABOUR DIVISION) AT TABORA MSC. LABOUR APPLICATION NO. 3 OF 2021 (Originating from Labour Dispute No. CMA/TB/URAMBO/MISC. 03/2021) LEVINAH FRANCE............................... APPLICANT VERSUS THE CATHOLIC ARCHIDIOCES OF TABORA REV. BROTHERS GMM RESPONDENT Date of Last order: 17/03/2023 Date of Delivery: 16/05/2023 RULING AMOURS. KHAMIS, J. Levinah France filed an application for condonation before CMA at Tabora, among other facts, complaining for unfair termination of employment contract and denial of basic rights entitled by contract of employment. She contended that at CMA, her application for condonation in regard to unfair termination of employment was improperly turned down and moved this Court to revise the CMA decision. i Levinah France complained that she owed the respondent leave allowances for 14 years, transport allowance to Bukoba and Tshs 100,000 payment in accordance to the agreed contract. She also averred that, she had served the respondent at two different contracts: 01/1/2019 - 31/12/2019 and 1/1/2020 to 31/12/2020 but prior to these written contracts she had worked for the Respondent since 2006 and there was no written contract. The applicant further lamented that on 27/11/2020, she received a notice for termination of her contract on grounds of misconduct which was not justified. Dissatisfied by decision of the respondent, she referred the matter to CMA, hoping to be paid. However, she said, her application for condonation did not receive a good outcome. Aggrieved by CMA'S decision, she preferred this instant Revision. When the Respondent, was served with the application for revision, it raised a preliminary objection based on the following grounds: 1. The notice ofApplication does not comply with mandatory provision of Rule 24(2) of Labour Court Rules, G.N No. 106 of2007 2 2. The affidavit sworn by the Applicant does not comply with mandatory provision of Rule 24(3) of Labour Court Rules, GN No. 106 of2007 3. The Affidavit sworn by the Applicant contravenes the provision of order XIX Rule 3(1) of Civil Procedure Code Cap. 33 R.E2002. 4. The Applicant has not cited the enabling law. The preliminary objections were canvassed by way of written submission and both parties complied with the Court order. In the course of submissions, the respondent's counsel, M. K. Mtaki, Advocates, contended that the applicant did not comply with the order of the Court. However, this contention was not established for the reasons to be given soon. This Court directed parties to file written submissions on the following schedules: The Respondent to file submissions by 8/9/2021, Applicant by 15/9/2021, and rejoinder by the Respondent on 22/9/2021. Further rejoinder by the applicant on 29/9/2021 and the matter was fixed for mention on 15/10/2021. This schedule was made bearing in mind that both preliminary objections and the main application for revision were ordered to be disposed of simultaneously. 3 The respondent filed his submission in support of the preliminary objection on 08/9/2021, which is within the time. The applicant filed the so called "Applicant's opening statement" an 14/9/2021 which is not submission on opposing preliminary objection raised by the Respondent. On the same material date (14/9/2021) the Applicant filed the so called "Reply the writing of Respondent for to submission for Application Applicant". On 22/9/2021 the respondent filed written submission, titled "Respondent's written submission against the Applicant's Application" challenging the so filed documents by the Applicant that were not submission as directed by the court order, and prayed this Court to act on them. On 29/9/20219, the applicant filed the so called "Applicant's Written Submission and Rejoinder against the respondent's". Now the issue is whether the two documents filed by the applicant on 14/9/2021 amounts to a written submission as ordered by this Court. I have taken time to go through the said two documents and came to a conclusion that the same are written submissions. I say so because a document titled: "Reply the Writing of Respondent for to Submission 4 for Application Applicant" filed by the applicant on its contents, it opposes submissions filed by the respondent as regards to preliminary objection. Despite of grammatical errors therein, the document intended to oppose the notice of preliminary objections. To that end, I hereby overrule the respondent's counsel's assertion on non-filing of the applicant's submissions. Consequently, I now proceed to determine the preliminary objection raised by the respondent. Ms. Elizabeth Kijumbe, learned counsel for the respondent practicing as M. K. Mtaki & Co. Advocates, contended on the first objection that the notice of application did not comply with the mandatory provision of Rule 24(2) of the Labour Court Rules G.N No. 106 of 2007, which requires a notice of application to comply with form No.4 in the First Schedule of the Rules. It was contended that the applicant's notice of application skipped item (e) thereof. Levinah France strongly opposed the objection contending that the application is clear and concise. She said the same complied with Rule 24 (2) of the Labour Court Rules, G.N No. 106/2007. She further contended 5 that Rule 29(2) of the Labour Court Rules G.N No. 106 of 2007 did not exist and accused the respondent for misleading the Court. I have carefully considered the parties rival submissions on the preliminary objection. The disputed notice of application was brought under Rule 2(a),(b)(c) (e)(f), 3(a) (b) (c) (d) (e), (2) of the Labour Court Rules G.N No. 106/2007 Section 9 (l)(a), 2(a), (b)(c), 94 (1) (b) (i) of "undisclosed law" and any other enabling provisions of the law in force. The gist of the preliminary objection was that Rule 24(2) of the Labour Court Rule G. N 106 of 2007 was not complied with by skipping Paragraph (e) of the Labour Court Rules G.N No. 106 of 2007 and the requirement provided under the prescribed form No. 4 of the Schedule of the Rules (supra) was not adhered to. Having examined the respondent's submissions on this point, I am convinced that the learned counsel for the respondent was not particularly sure because she kept confounded on Rule 29(2) and 24 (2) of the Labour Court Rules as depicted in the introductory and analysis section of the submissions. Reading those submissions, it is very perplexing to capture what the counsel meant to address. However, as rightly submitted by the applicant, Rule 29(2) cited by the learned counsel is non existent. 6 In relation to Rule 24 (2) (a)-(f), and particularly paragraph (e) thereof which requires the opposite party to file a counter affidavit within 15 days after the application has been served on him or her, failure of which the matter to proceed exparte, I find no substance on the respondent's assertion. My findings are that the applicant's notice of application complied with provisions of Rule 24(2) (a)-(f) of the Labour Court Rules G.N No. 106 of 2007. The applicant neatly listed all applicable provisions of the law on the notice of application including Rule 24(2) (a) - (f) of the Labour Court Rules. Nothing was skipped as alleged or at all. It should be well noted that the application is constructed or drafted based on the requirements of the law and not on a form prescribed. I therefore dismiss this ground of preliminary objection in its totality. On the second and third grounds of objection, it was alleged that the affidavit of the applicant did not comply with the mandatory provision of Rule 24(3) of the Labour Court Rules G.N No. 106/2007 and Order XIX Rule 3 (1) of the Civil Procedure Code, Cap. 33, R.E 2002 Counsel for the Respondent argued that the affidavit which support the Applicant's application is incurably defective for contravening Order XI Rule 3(1) of the Civil Procedure Code (supra). She contended that the 7 affidavit of the applicant contained facts which are not to her personal information but based on point of law. The applicant on the other side refuted this allegation and contended that her affidavit complied with Order XIX Rule 3(1) of the Civil Procedure Code, Cap 33, RE. 2019 and Rule 29 of the Labour Court Rule as well as Order VI Rule (1)(2) of the Civil Procedure Code, Cap. 33, R.E 2019. Having heard both parties I should begin by observing that both parties cited outdated laws by referring to the Civil Procedure Code Cap 33 R.E 2002 which is now revised as Cap 33, R.E 2019. For the interest of justice, I will leave this as it is. Order XIX Rule 3 (1) of the Civil Procedure Code, Cap 33 R.E 2019 which has been referred to by the parties, reads as follows: "Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications on which statements of his belief may be admitted." 8 In the disputed affidavit of the applicant, she averred that the Honourable Court be pleased to accept her claim and determine it in accordance to applicable labour legislations so that her rights can be paid. In my view, and considering the overriding objectives of the Civil Procedure Code, I find no merits in this objection. In regards to the fourth ground of preliminary objection that the applicant has allegedly not properly moved the Court. I do not see merits in this assertion as well. Upon examination of the provisions of law cited by the applicant to move this Court for revision, namely: Rule 24(l)(2)(a)- (f) 3(a) - (d) of the Labour Court Rules G.N No. 106/2007, Section 9 (1) (a) 2 (a) (b) (c), 94 (1) (b) (i).and could not see any relevant provision that was skipped or inclusion of a provision that is not relevant. For the aforestated reasons, I find no substance in all grounds of the preliminary objection by the respondent which are thus overruled. In my view, the application by the applicant is competent before this Court. Since parties were ordered to submit on both the preliminary objection and the application simultaneously, I will therefore proceed to determine the application on merits. 9 In accordance to that order, the respondent's counsel filed submissions in support of the notice of opposition which typically addressed the preliminary objections outlined above. The applicant filed a document titled; "APPLICANT'S OPENING STATEMENT" which address the Court on a background of her claim before the CMA. She also moved the Court to grant her prayer for payment of Tshs. 4,050,000/= as unpaid entitlements. Subsequently, Levinah France filed a document titled "REPLY THE WRITING OF RESPONDENT FOR TO SUBMISSION TO APPLICATION APPLICANT" which basically challenged the respondent's submissions on the preliminary objections. Ms. Elizabeth Mick Kijumbe filed another document titled "RESPONDENT'S WRITTEN SUBMISSIONS AGAINST THE APPLICANT'S APPLICATION". However, contents of this document focused to fault the applicant for allegedly non filing of submissions in support of the applications. At no point in time did Ms. Kijumbe address this Court on merits or otherwise of the application for revision. 10 This is to say that whereas the applicant fronted her submissions in support of the application for revision, the respondent did not! I have carefully read the impugned ruling of CMA by Hon. Amos, H (Mediator) dated 23/2/2021 which refused the applicant's application for condonation. In his decision, the mediator ruled that the applicant failed to show cause for the delay and thus dismissed the application. I have also examined the parties' documents filed in the CMA particularly an affidavit of Levina France dated 25th Jan. 2021 and counter affidavit of Joyce William Nkwabi dated 16th Feb. 2021. These documents reveal that Levinah France was employed by the respondent and her contract terminated on 27th day of November, 2020. It was also admitted by the respondent that prior to the written contract terminated on 27/11/2020 parties had an oral agreement which started on 1/1/2019 and concluded on 31/12/2019. Whereas the affidavit in support of condonation did not expressly disclose reasons for the delay, the CMA Proceedings of 16/2/2021 show what hindered early filing of the dispute by the applicant. ii Yesse Elias, representative of Levinah France, was recorded at CMA to have informed the presiding mediator that: "....tuiicheiewa kuleta maombi haya kutokana na mlalamikaji alikuwa anaomba apatiwe malipo yake ambayo tuliyataja kwenye CMA F. 1 lakini mwajiri alikuwa anasema tutakupa hakuna shida kwa nia njema to na mlalamikaji alikuwa anaamini atapewa hayo maiipo lakini mpaka baadae iiibainika hawezi kuvumiiia na ndipo aiipoenda kwa wakiii kuweza kupeieka maiaiamiko yake. Wakiii aiimwandikia barua mwajiri tarehe 18/2/2020 aiimpa siku 14 Hi aiipe maiipo hayo lakini barua hiyo ya wakiii haikujibiwa na waia hakuiipwa hapo ndipo iiipoonekana ana taka kupoteza haki ya maiipo". In the case of THA V. MOHAMED R. MOHAMED CIVIL APPEAL No. 80 of 1999 (unreported), the Court of Appeal held that in cases of extension of time, each situation has to be looked at on its own merits. The applicant was a domestic servant, uneducated lady who upon termination of her employment, acted and believed on the employer's promise to pay her entitlements day after day. She had no reason to suspect that the employer did not intend to pay her dues and did not suspect the employer's delaying tactics. 12 I have also considered that throughout these proceedings and before the Commission for Mediation and Arbitration the respondent did not state or show that the applicant was duly paid her entitlements in accordance to law. All these issues were neither highlighted, considered nor decided by the mediator. In the circumstances, I am of the view that the mediator did not judiciously refuse to grant the applicant's application for condonation. In the upshot, the mediator's decision is hereby quashed and this application for revision is granted. For the avoidance of doubt, the applicant's application for condonation is granted. It is thus ordered that the Commission for Mediation and Arbitration' records be remitted to CMA and the parties' dispute be entertained on merits before a different mediator /arbitrator. This being a labour dispute, lyml^ncuQrder for costs. It is so ordered. y /zZ z 1 AMOURS. KHAMIS JUDGE 16/05/2023 13 ORDER: Ruling delivered in open Court in presence of Mr. M. K. Mtaki, learned advocate for the respondent and Mr. Yesse Elias, representative 14