masu intertrade limited vs abas nuhu mbosa 2023 tzhc 20370 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY)

AT IRINGA LABOUR REVISION NO. 18 OF 2022 (Original Labour Dispute No. CMA/NJ/AUG/25/2017of the Commission ofMediation and Arbitration for Njombe before Hon. A. Singo, Arbitrator.) MASU INTERTRADE LIMITED ................................. APPLICANT

VERSUS ABAS NUHU MBOSA .................................. RESPONDENT

JUDGMENT ldh July & 11th August, 2023 I.C. MUGETA, J: On 30/10/2017, the Commission for Mediation and Arbitrator (the CMA) - Njombe decreed that the applicant had to pay the respondent Tshs. 15,685,769/= being entitlements for unlawful termination of employment contract. The subsistence allowance award has been the subject of litigation since then. In the said decision, the CMA had calculated it at Tshs. 6,525,000/=. When the respondent sought to execute the decree, he pegged it at Tshs. 71,665,769/=. The executing Deputy Registrar decided that the lawful amount was Tshs. 15,685,769/= as decreed by the CMA. She ordered execution to proceed in respect of that amount. This aggrieved the Page 1 of 4 respondent who filed Labour Application No. 19 of 2020 to challenge the decision of the Deputy Registrar. My brother (Matogolo, J) found that the decision of the CMA had contradictions, therefore, the Deputy Registrar ought to have sought clarification from CMA instead of interpreting it herself. My Lord, ordered reference of the file to the CMA to clarify its decision in respect of the award for subsistence allowance. In compliance with the above said directions of this court, on 18/11/2021 the CMA, without involving the parties, issued another decision with award of a total of Tshs. 79,495,769/= out of which Tshs. 70,335,000/= is subsistence allowance. The applicant was aggrieved

by this second award, hence, this application. The applicant has raised several complaints but I shall address only one complaint which is that the CMA, in issuing the new award, denied the parties the right to be heard. I have so decided because, as submitted by Edmund Mkwata, counsel for the respondent, the other complaints are brought in this application through a back door since they ought to have been argued in Labour Revision No. 3/2018 which was dismissed. Page 2 of 4 Regarding the valid complaint, Mr. Moses Ambindwile, learned counsel for the applicant has argued that since the new decision affects the applicant substantially, she ought to have been heard before it was passed. Edmund Mkwata, learned advocate responded that the High Court did not direct a rehearing but to correct errors in the CMA decision. In his view, the CMA was right to amend the decision without involving the parties. With respect I do not agree with Mr. Mkwata. In my view, the clarification directed by this court was not a mere clerical error but it involved matters of subsistence affecting the rights of the parties. The decree was changed from Tshs. 15,685,769/= to Tshs. 79,495,769/=. The big chunk of this amount is subsistence allowance for want of repatriation which depends on when the respondent is repatriated from the date of termination. Therefore, evidence as to whether the respondent had

been paid repatriation costs or not was important as from 30/10/2017 to 18/11/2021 when the new decision was passed anything could have happened. Further, it was important for the CMA to determine if, in case of unlawful termination of employments, subsistence allowance is paid in form of daily pay or as monthly salary. These are matters which Page 3 of 4 Vat in my view, the CMA could not have decided suo moto. The parties, particularly the applicant who is affected most by the decision, ought to have been heard. For the foregoing, I hold that the decision of the CMA of 18/11/2021 is unlawful. I quash it and set aside all orders emanating there from. I direct the CMA to clarify the issue of the payable subsistence allowance after hearing the parties. I.C. MUGETA

JUDGE 11/8/2023 Court: Judgment delivered in chambers in the presence of Moses Ambindwile, learned advocate for the applicant who is absent and in the absence of the respondent. Sgd. I.C. MUGETA

JUDGE 11/8/2023 Page 4 of 4