MARGARETH PASCHAL MAGANGA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 23953 OF 2024 (Arising from an Award issued on 16/8/2024 by Hon. G.M, Gerald, arbitrator, in Labour dispute No. CMA/DSM/ UBG/41/2023 at Ubungo) MARGARETH PASCHAL MAGANGA ............................................... APPLICANT VERSUS YOUR LOCAL CLINIC LTD T/a BIORA MEDICINA ..................... RESPONDENT JUDGMENT Date of Last Order: 18/11/2024 Date of Judgment: 12/12/2024 B. E. K. Mganga, J. Brief facts of this application are that, Margareth Pascal Maganga, the abovenamed applicant was employed by Your Local Clinic t/a Bora Medicina, the abovenamed respondent, as the chief executive officer (C.E.O). It is said that, on 17th April 2023, applicant was served with a letter notifying her that respondent terminated her employment contract with effect from 31st March 2023. It is undisputed fact that, on 24th April 2023, applicant filed Labour dispute No. CMA/DSM/UBG/41/2023 before the Commission for Mediation and Arbitration(CMA) complaining that, on 31st March 2023, respondent breached her contract of employment. Based on that, applicant indicated in the referral form that she was 1 claiming to be paid USD 43,336 being eight Months salaries compensation, TZS 7,903,000 being employment benefits for six months, USD 10,500 being housing allowance for five months and USD 500,000 being damages. On 16th August 2024, Hon, G.M. Gerald, arbitrator, having heard evidence of the parties, issued an award dismissing the dispute for want of merit. Applicant was aggrieved with the award as a result, she filed this application seeking the court to revised and set aside the said award. In the affidavit in support of the application, applicant raise five issues namely:- 1. Whether the Arbitrator’s finding that the respondent complied with the law and terms of employment contract before terminating applicant’s contract of employment is reasonable and logically justifiable in law. 2. Whether the arbitrator’s findings that termination was substantively fair is justifiable in law. 3. Whether the arbitrator’s findings that termination was fair procedurally was justifiable in law. 4. Whether based on applicant’s employment contract hiring of employees was one of her responsibilities. 5. Whether the arbitrator’s finding that applicant breached conditions of her employment contract was correct. Respondent filed the notice of opposition and the counter affidavit affirmed by Hawa Rashid Kikoti, her principal officer. When the application was called on for hearing, Mr. Dutu Chagwa, learned advocate, entered appearance and argued for and on behalf of 2 the applicant while Mr. Gilbert Masaga, learned advocate, entered appearance and argued for and on behalf of the respondent. Counsel for the applicant having submitted in support of the issues raised in the applicant’s affidavit in support of the notice of application, I asked him also to submit whether, exhibits were properly tendered and admitted in evidence. Responding to the issue raised by the court, counsel for the applicant submitted that, after perusing the CMA record, he noted that, there were irregularities in admissions of exhibits because, some documents were tendered in absence of prayers by the witnesses and the other party was not asked to comment prior to admissions. He further submitted that, the CMA record does not show actual words by the parties showing that there was no objection. He was quick to submit that, rule 19(1) and (2) of the labour Institutions(Mediation and Arbitration Guidelines) Rules, GN. No. 67 of 2007 provides that the arbitrator has discretion to determine how arbitration should be conducted. He added that, none of the parties has complained that they have been prejudiced by the modality used by the arbitrator. Upon being probed, counsel conceded that, Rule 19 of GN. No. 67 of 2007(supra) must be read together with section 88(4) of the Employment and Labour Relations Act[Cap. 366 R.E. 2019]. 3 In his submissions, counsel sumitted that, the CMA record does not show that the other party had no objection in relation to exhibit D1 and added that, that was not fair. Upon reflection, counsel for the applicant submitted that, documents that were admitted improperly should be expunged and the court should proceed to determine the application based on exhibits that were properly admitted. As an alternative, counsel submitted that, if all exhibits were improperly admitted, let proceedings be nullified and order trial de novo before another arbitration. On his party, Mr. Masaga, counsel for the respondent submitted that, according to the CMA record that they have inspected in my presence, there were no prayers by the witnesses in tendering exhibits and the other party was not asked to comment. He also submitted that, the arbitrator indicated that exhibits were admitted as there was no objection from the other party. Counsel also submitted that, the court cannot rely on those exhibits. Counsel submitted further that, in the circumstances of the applcation at hand, the only remedy is to nullify CMA proceedings and order trial de novo before a different arbitrator. With those submissions, Counsel for the respondent refrained to submit on the issues raised by the applicant in her affidavit in support of the aplication. 4 It was submitted by both counsels that, CMA record does not show that witnesses prayed to tender exhibits and further that, the other party was not afforded a right to comment whether there is objection or not. In short, both counsels submitted that exhibits were improperly admitted in evidence. I should point out that, the issue relating to improper admission of exhibits is not novel in our jurisdiction. In fact, the Court of Appeal had an advantage to discuss the effect of improper admission of exhibit and its use thereof, in the case of Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452 (20 July 2022) where it held inter-alia:- “It is trite law that, a document which is not admitted in evidence cannot be treated as forming part of the record even if it is found amongst the papers in the record… Therefore, it is clear that the two courts below relied on the evidence which was not tendered and admitted in evidence as per the requirement of the law. This omission led to miscarriage of justice because the appellant was adjudged on the basis of the evidence which was not properly admitted in evidence…” See also the case of M.S Sdv TRAnsami Limited vs M.S Ste Datco (Civil Appeal No. 16 of 2011) [2019] TZCA 565 (18 June 2019) and Japan International Cooperation Agency vs. Khaki Complex Limited [2006] T.L.R 343. 5 It is my considered opinion that, any document or physical object, in order to form part of evidence, (i) must be tendered by a witness and (ii) must be admitted in evidence by the court. In fact, the Court of Appeal put it clear in the case of Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020) wherein it held inter-alia that :- As earlier alluded to above, applying a document which was not tendered/presented in evidence as exhibit, is tantamount to condemning the party/parties without according him /them the basic right of being heard. Since the right to be heard is a cardinal principle of Natural Justice, we are sufficiently convinced by the submission which was made by the learned counsel for the appellant, that the act by the learned trial Judge, to base his judgment on a document which had not been tendered and admitted in evidence as exhibit, vitiated the proceedings. (Emphasis is mine). It was submitted by counsel for the applicants that, in terms of rule 19(1) and (2) of GN. No. 67 of 2007, arbitrators have discretion to determine how they can conduct arbitration proceedings. It was correctly submitted by counsel for the applicant that, the said rule must be read together with section 88(4) of Cap. 366 R.E. 2019. I entirely agree with those submissions. The said section 88(4) of Cap. 366 R. E.2019(supra) provides:- “88(4) The arbitrator- 6 (a) may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly; (b) shall deal with substantial merits of the dispute with minimum of legal formalities.” (Emphasis is mine). It is my view that, admitting exhibit without asking the other part to comment whether there is objection or not breached principles of fair hearing and right to be heard. In short, that was in violation of section 88(4)(a) of Cap. 366 R.E. 2019(supra) quoted hereinabove which, in my opinion, is a guidence to the arbitrators that whatever modality or manner they opt to apply in conducting arbitration proceedings, they should ensure that there is fairness to the parties. I should put it clear that, though arbitrators have that discretion with a need of speed dispossal of the disputes as provides under section 88(4) (a) of Cap. 366 R.E 2019(supra), they should always be guided by fairness and not only speed disposal the dispute. I am of that view because, in the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021) the Court of Appeal cautioned that, speed is good but justice is the best. In Guidon’s case (supra), the Court of Appeal held inter-alia that:- “…The learned Judge appear to have in mind expeditious resolution of the dispute to prevail over the compliance with the timelines for referring labour disputes before the CMA. With respect, we do not share his sentiments 7 however well-intentioned they may have been made. Firstly, it is long settled that the court's discretion must be exercised judiciously as opposed to capriciousness on the basis of material placed before it for consideration… Secondly, while we agree with the learned Judge on the expeditious resolution of disputes, we think that expeditiousness must be subject to the dictates of the law and justice. As we had occasion to remark in Independent Power Tanzania Ltd & Another v. Standard Chartered Bank (Hong Kong) Limited, Civil Revision No.1 of 2009 (unreported), speed is good but justice is best (at page 26). And by justice we mean justice to both parties to the dispute…” Guided by the above cited Court of Appeal decisions, I hold that the irregularities committed by the arbitrator vitiated the whole CMA proceedings. I therefore entirely agree with submissions by both counsel that CMA proceedings are nullity. For the foregoing, I hereby nullify CMA proceedings, quash the award and set it aside and order trial de novo before a different arbitrator. Since the issue that was raised by the court has dispossed the whole application, I find it unnecessary to discuss issues raised by the respondent. Dated at Dar es Salaam on this 12th December 2024 B. E. K. Mganga JUDGE 8 Judgment delivered on this 12th December 2024 in Chambers in the Margareth Paschal Maganga, the Applicant and Gilbert Masaga, Advocate for the Respondents. B. E. K. Mganga JUDGE 9