macao entertainment ltd vs khadija abdallah 2021 tzhcld 2103 11 october 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 13 OF 2021

BETWEEN

MACAU ENTERTAINMENT LIMITED APPLICANT

AND

KHADUA ABDALLAH RESPONDENT

JUDGMENT Date of Last Order: 02/9/2021 Date of Judgment: 11/10/2021 B, E, K. iMqanqa, J. The respondent was^emplbyed by the applicant as Texas casino supervisor. The relationship between the two broke out on 31st October 2019 wheri> the respondent's employment was verbally terminated^puexto that broke out of relationship , on 27th November 2019 respondent referred to the Commission for Mediation and ■o-., v-;7 Arbitration henceforth CMA Labour dispute No.CMA/ DSM/ILA/928/19/426/19 claiming to be paid terminal benefit on ground that there were no valid reasons for termination and further that procedures for termination were not followed. On 23rd December 2019, mediation failed before Mahindi, Mediator, as a result the i mediator signed CMA form No. 6 i.e., Mediators Certificate of non­ settlement. On 27th December, Masawe. Y, signed and issued a notice to attend arbitration (CMA F.3) informing the parties that they should appear on 23rd January 2020 at ll:00hours. This notice was received by the applicant on the same date it was issued. On 23rd January 2020, only the respondent appeared before Ng'wasni\Y, arbitrator, \\ and no reasons were assigned for non-appearance>of the applicant as a result the matter was adjourned to 6th, February 2020. On 23rd January 2020, Ng'washi. Y, arbitrator, "signed and issued another notice to the parties to attend^arbitratidh on 6th February 2020

at 9:00hrs. This notice was received by the applicant who stamped his official rubber stamp but. nd,date of reception. She only endorsed % v time of reception^Tkgain^applicant did not enter appearance on 6th February 20207-The' dispute was therefore adjourned to 12th March 2020. On Me"'later date, applicant did also not attend as a result arbifratof^ordered the respondent to prove the dispute ex-parte on 3rd April 2020. On 10th July 2020, Ng'washi. Y, arbitrator delivered an award in favour of the respondent and ordered the applicant to pay the respondent a total of Thirteen Million Tanzanian Shillings (TZS 13,000,000/=) only. 2 On 29th July 2020, applicant filed a notice of application seeking to set aside the said ex-parte award. The notice of application was supported by an affidavit of Richard Pumpuni Kitambi who deponed inter-aiia that, applicant was not served with CMA F-8 showing that the respondent has referred the matter to arbitration and that there were no service of summons to the applicant. The application was opposed by the respondent who filed a i< \ counter affidavit deponing that applicant deliberately chose not to appear at CMA as she was properly served .^Respondent annexed to z^Rx her affidavit notices to attend/arbitration^on 23rd December 2019 and 12th March 2020. On^ November 2020, Matalis. R, arbitrator, issued a ruling dismissing^the^application to set

aside ex-parte award >x jr for reasons that;-applicant was duly served and failed to give .x satisfactoiy^asonsTor her failure to appear on 23rd January,2020, 6th Febr^ai^2020 and 12th March 2020. <x 1 (.V <\ I ^Applicant was aggrieved by that decision and decided to file this present application seeking the court to revise the ruling that dismissed application to set aside an ex-parte award. Applicant filed a Notice of Application supported by an affidavit of Richard Pumpuni Kitambi. The Affidavit of Richard Pumpuni Kitambi in support of the 3 notice of application contains four legal issues for determination as follows; 1. (i) Whether the respondent proved that the applicant was duly served with the summons for arbitration hearing when the Commission ordered the dispute to proceed ex-parte. 2. (ii) Whether the respondent gave faise^ information during the hearing of the dispute before therCommission about her monthly salary. „ <xl( (Hi) Whether there was sufficient reason for non- appearance of the appHcarii^pnji^ March 2019 when the Commission issued order, for the dispute to proceed ex-parte. j) 4. (iv) Whether it-was proper for the Commission to reject I the application for setting aside ex-parte award. Respondent-resisted the application and filed both a Notice of if' Opposition and a) Counter Affidavit. if"-*'* T^e/application was disposed by way of written

submissions whereas;applicant was represented by Joseph Basheka, her Personal Representative while respondent enjoyed the service of Isihaka Yusuph, advocate. Submitting in support of the application, regarding the first issue as stated in her affidavit, Mr. Basheka, argued that, applicant 4 was not served with summons to appear before the Commission on 12th March 2020 when the Commission proceeded with the matter ex- parte by relying on the summons issued on 6th March 2020 without proof of service. He submitted that, this was contrary to Rule 7(l)(a),(b), (c)(i), (ii) and (2) of the Labour Institutions (Mediation /? * and Arbitration) Rules G.N No. 64 of 2007. In ^bolstering his - - submissions, he cited the case of Pofycem Tanzania Limited v. Jummanne Samnachiiindi and 5 Others,^Revision No.5, High A Court of Tanzania, at Dar es salaam(unreported). On the second issue regafding-salary, he submitted that the same had never been disputed'by^the respondent as the applicant's attached documents justify^employee's salary including respondent. That respondent/gave raise information as to the amount of salary she was Seing^paid/He stated that, giving false information before the Comlnissjon is irregularity which is sufficient ground for setting aside'<ex^parte award as it was decided in the case of Kampala International University k James F. Simumba and 2 Others, Revision No. 270 of

2019, High Court of Tanzania, Labour Division at Dar es salaam. 5 It was further argued that the Commission was erred to award respondent TZS 13,000,000/= without proof by the respondent. Bashekai cited Section 110(1) of the Evidence Act,[Cap 6 2019] as to who has a burden of proof. Cementing his stand, he cited the case of The Registered Trustees of Joy in the Harvest k. Hamza K. Sungura, Civil Appeal No. 149 of 2017, CAT (unreported).// On whether, there was a sufficient reasonjor applicant's non- appearance, it was submitted by Mr. Bashekalthatrsince there was no proof of service, and as applicant wajs;not? properly served, it was not have expected her to appearance.<)n;i2th March 2020. In making his argument strong, he referre&this'tourt to the case of Kinondoni I Municipai Council v.Robert Mwanga and 14 Others, Civii Appeal No. 15<of;2015, High Court, Main Registry at Dar es salaam(unrep6rtedj:" Oh^thejast issue, Mr. Basheka argued that, the Commission erred<dyAot setting aside the ex-parte award as there was no proof of service of summons. That, service of summons was uncertain contrary to Rule 7(l)(a), (b), (c)(i), (ii) and (2) of the Labour Institutions (Mediation and Arbitration) Rules G.N No. 64 of 2007 which is mandatory provision. Supporting his stand, he cited different 6 cases including the case of T. M Sanga v. Sadrudin G.A Albhai and 2 Others [ 1977] TLR P.51.

He thus prayed for the Court to set aside ex-parte award. In response to the first issue, the respondent's Counsel, argued that, the arbitrator satisfied himself that applicant was duly served. Counsel submitted that, it is a settled principle of^aw^that^^Court record is always presumed to be accurate representing wKat actually transpired in Court. Bolstering his submissions, hescited the case of Emmanuel Denis Mosha and 3 Otheis^y? Republic, Criminal Appeal No. 188 of 2018, CAT;^(unreported) to that effect. For that : // reason, he was of the view that^applicant was dully served. Counsel for the respondent opted to argue the 3rd and 4th issues together and submitted5'that applicant was duly served but for reasons dnly^knowh^to her failed to appear before CMA. That, the said non-appearance without reasonable cause, justified rejection of settirig<aside the ex-parte award. He added that, what was decided by the arbitrator is in accordance with well-established principle of presuming Court record to be accurate as was held in the case of Halfan Sudi v. Abieza Chichili [1998] TLR 527. 7 Regarding I the 2nd ground relating to false information, Counsel for respondent submitted that, applicant had a proper forum of disputing salary at CMA not at this stage of application for setting aside ex-parte award. Counsel submitted that no false information was given by the respondent on her

salary as TZS 400,000/= was z? /A ° given without signing and TZS 600,000/= was givembyxSigning^alary register. He thus prayed for the application to be^dismissed^ p ’’X-Z? In disposing this application, for convenience;;! wilbstart with the 2nd ground! of revision namely; whether Jhej^respondent gave false of information during hearing of-the 'dispute before the Commission ’Aw >,pi about her monthly salary. . V: ! < Applicant annexed^tottje affidavit a document called salary for July 2019 and salaryvfdr August 2019 signed by employees including the respoA^efrtSshowing that the respondent's monthly salary was ''W; TZS 600,0004=. Therefore, arguments by counsel for the respondent that'she<was paid TZS 400,000/= without signing and that she was signing TZS 600,000/= to make it TZS 1,000,000/= as total monthly salary lis neither born out of her evidence at CMA nor her counter affidavit filed in opposing this application. As such, submissions made on her behalf that she was receiving TZS 400,000/= without signing 8 and that she was only signing for TZS 600,000/= are submissions from the bar which cannot be regarded as evidence. I will therefore ignore that argument and hold that parties need to be heard at CMA on this aspect. It is only at that time it can be ascertained the exact amount she was being paid as monthly salary. Both parties will have a room of cross examination and

shake credibility oflhe opponent. The main rival and centre of the all issue restsvon the 1st ground <of revision namely whether; there is proof that applicant was 'x> served , before the matter proceeded^ex^parte. I have carefully examined notices to attend arbitration-as; stated hereinabove and find that applicant was duly served witfrtKe notice requiring her to appear । on 23rd January 2020x;as\she received the said notice on 27th ex ' December 2019 /butshe' did not enter appearance. The notice _ )} requiring 'her^t'o^appear on 6th February ’2020 was received by the applicahf^hp^stamped her official rubber stamp but no date of reception^ but endorsed time of reception only. She did not enter appearance. It is therefore unclear as to whether she received it before the date she was required to appear of after. The arbitrator adjourned the matter to 12th March 2020 and ordered that, that was the last adjournment. At this time, no summon was either issued or 9 served to the applicant as there is none in the CMA file as proof of issuance or service to the applicant. On 12th March 2020, arbitrator issued an order that the dispute will be proved ex-parte. The dispute was therefore adjourned to 12th March 2020. On the later date, applicant did also not attend as a result arbitrator ordered the s? ^4 ° respondent to prove the dispute ex-parte on 3rd April 2020.<>In my view, the

arbitrator having ordered that 12th Marcft 2020 was the last adjournment, applicant was supposed to be hotifiebr^Failure to serve or notify the applicant that the matter has-been'adjourned for the last time, in my view, defeated/^the vwhole intent and purpose of adjourning the matter and the lastadjournment order itself. 1 - The CMA file shows that respondent gave her evidence on 9th June 2020 and an-order-was issued that an award will be delivered on 10^h ^ly^2b20. I have noted that on 10th July 2020, Ng^ash^Yz/ arbitrator, signed a notice informing the parties to appear <X on 16%jiily 2020 at ll:00hrs. Applicant was served with the said notice bn 10th July 2020 at 11:19 hrs. I have further noted that, the ex-part:e award shows that it was delivered on 10th July 2020 on । the same date the same arbitrator signed a notice informing the parties! to appear on 16th July 2020. More worse, the record does not io show who was present at the time the award was being read. There is no record showing that the award was delivered on 10th July 2020 apart from what is written on the award itself that it was delivered on 10th July 2020. As there is no proof of service before an order of ex- parte proof was issued and for the irregularities I have pointed out, I //■ 0 hold that the arbitrator erred in dismissing application to set aside ex- parte award. In short, all grounds of revision .succeed. XI therefore allow the application and set aside the ex-partevaward. I hereby direct that CMA record be remitted to CMAssg^that the dispute can be (J "u properly heard and determined/' It is so ordered ii