mbezi fresh market ltd vs shabani j rajabu 2020 tzhcld 416 9 october 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 690 OF 2019 BETWEEN MBEZI FRESH MARKET LTD............................................... APPLICANT AND SHABANI J. RAJABU....................................................... RESPONDENT JUDGMENT Date of the Last Order: 18/09/2020 Date of the Judgment: 09/10/2020 A. E. MWIPOPO, J This Revision Application was filed by Mbezi Fresh Market Ltd, the Applicant, against the decision of the Commission for Mediation and Arbitration (CMA) delivered on 12th July, 2019 in respect of the labour dispute no. CMA/DSM/KIN/R.1227/16/175. The Applicant praying for the Court to revise and quash the decision of the Arbitrator in labour dispute no. CMA/DSM/KIN/R.1227/16/175 delivered on 12th July, 2019, before Hon. Gerald, Arbitrator; cost of this application; and any other relief the Court deems just and equitable to grant. 1 The Respondent Shabani J. Rajabu was employed by the Applicant as Security officer for the monthly salary of 300,000 shillings. He was terminated by way of retrenchment on 26th December, 2016. Aggrieved by the decision the Respondent referred the dispute to the Commission for Mediation and Arbitration which heard the matter in exparte and decided in respondent favour. The applicant applied to the Commission to set aside the exparte but the same was dismissed. Aggrieved the Commission Ruling, the Applicant filed the present application. Both parties in the application were represented, Mr. Stephen Mosha, Advocate appeared for the applicant, whereas Ms. Nasra Hamisi, Advocate, appeared for the Respondent. The application was heard through oral submissions. The Counsel for the Applicant submitted that there are several grounds for filing the present application. The first ground is that the Hon. Arbitrator was justifying his decision to deliver exparte Award in the ruling regarding setting aside the exparte Award. The Arbitrator rejected the reasons advanced by the Applicant that the Counsel for the Applicant erred in taking the hearing date before the Commission where he recorded that the matter was coming for hearing on 6th June, 2018, instead of 5th June, 2018. 2 The second ground for the Revision is that the Arbitrator erred to give the Applicant fundamental right to be heard by rejecting applicant's reasons for the failure to appear. This is found in page 4 paragraph 3 of the Commission Award. The Arbitrator wrongly capitalized the true meaning of the right to be heard. The applicant cited the case of Golden Globe International Ltd and Another vs. Milcom Tanzania and 4 Others, Civil Application No. 441/01 of 2018, Court of Appeal of Tanzania, at Dar Es Salaam, (Unreported). The Applicant's third ground of Revision is that the arbitrator awarded the respondent with excessive award without citing the good reason for so doing. The Applicant submitted that this is illegality which was expected for the CMA to revise the exparte Award. The Arbitrator failed to consider this illegality. In support of the position, the applicant cited the case of TUCTA vs. Engineering Systems Consultants Ltd, Civil Appeal No. 51 of 2016, Court of Appeal of Tanzania, at Dar Es Salaam, (Unreported). The applicant submitted further that the Arbitrator punished the Applicant for the wrong done by the Advocate who failed to record properly the hearing date. The applicant should not be punished for the wrong done by the Advocate especially if the error is within domestic affairs of the Advocate. This position was stated in the case of Ghenia J. Kimamba vs. Shedrack 3 Ruben Ng'ambi, Miscellaneous Application No. 692 of 2018, High Court Labour Division, at Dar Es Salaam, (Unreported); and in the case of Kambona Charles vs. Elizabeth Charles, Civil Application No. 529/17 of 2019, Court of Appeal of Tanzania, at Dar Es Salaam, (Unreported). The applicant prayed for the application to be allowed and the CMA Award be set aside. In reply, Ms. Nasra Hamisi, Advocate for the Respondent, submitted in contention to each ground of revision as submitted by the Applicant. The Respondent Counsel submitted that the Arbitrator rightly dismissed the application to set aside exparte Award. The only thing that could make the Arbitrator to set aside the exparte Award was for the Applicant to provide sufficient reason for failure to appear on the hearing date. The good or sufficient reason depends on the circumstances of the case. The applicant reason that the Advocate erred to record the hearing date was not sufficient reason. The same could be good reason if the same was proved. The Applicant was supposed to produce the copy of diary of the hearing date and the next date which the applicant wrongly cited as the hearing date. Bringing the copy of diary of the following date is just an afterthought. Thus, the Arbitrator rightly dismissed the application prayer to set aside exparte award. 4 The respondent submitted on the Applicant's second grounds of revision on the illegalities and right to be heard that the applicant did lost their right to be heard by themselves. The Applicant had that right but decided not to appear on the hearing date. The CMA proceedings shows that the applicant did not bring any witness to prove their case despite being given several chances to do so. On the 27th March, 2018 the applicant was given the last chance to bring witness and still the applicant did not appear on the hearing date which was on 5th June, 2018. The complaint before the Commission was referred in 2016 and it was the applicant who was giving different excuses each date of the hearing of the dispute which delayed the finalization of the matter. It is clear that the applicant was delaying the proceeding on purpose hence denying respondent his rights. The applicant had right to be heard but he decided not to have it. The respondent was of the opinion regarding applicant submission that the Arbitrator Awarded general damage without providing the reason for awarding the damage have no basis. The reasons for awarding the general damages are found in page 5 last paragraph and page 6 first paragraph of the Commission Award. Hence the general damages were properly awarded. On the last ground that the mistake of the Applicant counsel should not be used to punish the Applicant, the counsel the respondent submitted 5 that the Applicant had legal counsel who appeared on his behalf before the Commission. The same counsel was given several orders by the commission to bring witnesses but did not adhere to the orders and come with excuses that his client is sick or has travelled which prove that he was informing the client of the complainant's progress. The Act of the Applicant counsel to appear before the Commission without a witness on the hearing date is the same as non-appearance. This shows that there was conspiracy between the counsel and the applicant to delay the hearing of the complainant before the Commission. Even the date the Applicant counsel alleges that he appeared to the Commission which is on the 06/06/2018 there is no evidence that he appeared with a witness. The respondent is of the opinion that the application have no merits and have to be dismissed. In rejoinder, the Applicant Counsel prayed to retaliate his submission in chief. The Counsel insists that the right to appear and be heard was lost by Advocates fault and not the applicant. The applicant did not intend to delay the proceeding and she shows her need to be given right to be heard. The reason which made the Commission to adjourn the hearing of the complaint was good reason that is why the Commission granted the same. Therefore, there was no intention to delay from the applicant. Also, there is no reason for awarding the respondent with the general damages of 10 6 million which was stated or given by the Hon. Arbitrator. With regard to whether the applicant on the 06/06/2018 appeared with a witness or not, the same is not a thing to discuss at the moment. The applicant prayed for the Application to be allowed. After submissions from both parties, the issue for determination is whether the applicant have sufficient reason for the Court to grant his application to set aside the ex parte award of the Commission. In determination of the main issue, it is important to look at the principle guiding on the subject matter. It is a trite law that application to set aside an ex parte award is granted where the applicant constitute sufficient ground for the Commission or the Court to set aside the ex parte award. This Court in the case of Mbeki Teachers Sacco's V. Zahra Justas Mango, Revision No. 164 of 2010, High Court Labour Division at Mbeya, (Unreported), held that sufficient reason is pre - condition for Court to set aside exparte order. The applicant submitted three grounds for filling this application. Those grounds include that the Hon. Arbitrator erred to reject the applicant's reason for non-appearance on the hearing date; the Arbitrator denied the Applicant right to be heard; and there is point of illegalities apparent in the face of Exparte Award which need to be heard and rectified. In opposition, the 7 respondent submitted that the Arbitrator rightly dismissed the application to set aside exparte Award for the ground that there is no sufficient reasons provided by the Applicant for his non - appearance on the hearing date. The evidence in record shows after the Commission delivered the Exparte Award the Applicant filed an application to set aside the Exparte Award on 25th September, 2018, which was dismissed by the Commission on 12th July, 2019. The applicant reason for non- appearance on the hearing date was that she erroneously recorded the hearing date to be on 6th June, 2018, instead of 5th June, 2018. To prove the stated facts the Applicant attached the copy of diary dated 6th June, 2018, which its entry shows that the case was coming for hearing on 6th June, 2018. The Commission was not persuaded by the applicant reason for non - appearance the Applicant Counsel erred in recording the hearing date. The Commission was of the view that Applicant's failure to enter appearance on the particular hearing date and the reasons thereby does not justify their routine of recalcitrance in attendance to hearing sessions. Since the Applicant Counsel attended the session on the respective date when the hearing date was fixed, then how come he erred in recording next hearing date which was last hearing date. The Commission also held that the right of hearing as pleaded by the Applicant have responsibilities and limits. The 8 one who wish to be afforded right of fair hearing have responsibilities to abide with the authorities established by the law. Thus the Commission reached a decision that the Applicant reasons does not warrant sufficient cause to set aside Exparte Award. The evidence available in record of proceedings shows that the Commission when adjourning the matter on 27th March, 2018, made it clear that failure of the employer to bring witness on 5th June, 2018 then the hearing will proceed with complainant's witnesses. On the scheduled hearing date the applicant did not appear. I'm of the same opinion as the Commission that the trend of Applicant who always failed to bring witness on each of the fixed hearing date prove that the Applicant has no interest to bring the witness. The Commission ordered when adjourning the matter on 27th March, 2018, that the adjournment was the last one to the employer and that failure of the employer to bring witness on the fixed hearing date then the Commission will proceed with complainant's witnesses. The Applicant did not appear on the hearing date hence the Commission was justified to proceed to hear the matter in exparteas it did. The Applicant submission that the Applicant's Counsel erred to record the hearing date is not sufficient since he was present when the matter was adjourned. He was supposed to record Commission order properly. 9 The Applicant have submitted that he was denied fundamental right of fair hearing by the Commission decision to proceed with the hearing of the dispute before it in exparte. However, I'm of the opinion that the Applicant was afforded right of hearing but he decided not to use it. Thus, it is not true that the right was denied. Also, the Applicant failed to prove he did bring any witness on 6th June, 2018, the date he alleged he appeared in Court erroneously. This means that the Applicant did not bring any witness when he appeared in Court on the wrong date which is contrary to the Commission order. The allegation that the Applicant should not be punished for the mistake of his Counsel have no basis since it appears that there was Communication between the Counsel and the Applicant regarding witnesses who can testify on Applicant's case. As a result, the Applicant was expected to be aware of the delay and adjournment made for their failure to bring witness. For that reason, I find that this ground for the Revision has no merits. The applicant submitted that there is illegality apparent on the face of the Commission's Exparte Award. The said illegality is that the trial Arbitrator did not record the reason for awarding general damages to the tune of 10 million shillings to the Respondent. Reading the Commission's Exparte Award it is clear that the Arbitrator did not provide any reason for awarding the io respondent with the General Damages. As a general Rule, the General Damages must be proved during hearing. The Respondent submitted that the Commission did assign reasons for awarding general damages to the Respondent in the Award. I have different opinion to the Respondent submission. In the present application there is no evidence presented before the Commission to prove the damages. Also, the Commission did not provide the reason for awarding general damages to the Respondent. The illegality is there. The Applicant prayer is that since there is illegality in the Commission Exparte Award then the same have to be set aside, the Commission proceedings quashed and the matter be heard interparty. However, illegality of the challenged decision constitutes sufficient reason for granting extension of time. This position provided by the Court of Appeal in the case of V.I.P. Engineering and Marketing Limited and Others v. Citibank Tanzania Limited, Consolidated Civil Reference No. 6, 7 and 8 of 2006, Court of Appeal of Tanzania, at Dar Es Salaam, (unreported), where it was held that;- "It is, therefore, settled law that a claim of illegality of the challenged decision constitutes sufficient reason for extension of time..." 11 This being application for Revision to set aside Exparte Award, its remedy where there is illegality is not the same as in application for extension of time. The remedy available for the illegality is to correct it. The Commission Exparte Award is set aside if the Court is satisfied that the party was prevented from appearing by sufficient cause. This Court in the case M/S Jaffer Academy vs. Hhawu Migire, Revision No. 71 of 2010, High Court Labour Division at Arusha, (Unreported), held that: "When a party aggrieved by an ex parte award on ground that the order to proceed ex parte was wrongly made, the proper procedure open to the aggrieved party is to apply to the CMA, explaining reasons for the failure to appear before it, and seeking its order to set aside the ex parte award. If the Commission is satisfied that such a party had a good ground for failing to attend hearing, it will reverse the ex parte order so made and allow the matter to proceed interparty". Also, in the case of Mbeki Teachers Sacco's V. Zahra Justas Mango, Revision No. 164 of 2010, High Court Labour Division at Mbeya, (Unreported), this Court held that sufficient reason is pre - condition for Court to set aside experte order. 12 As I have already heard that there was no sufficient cause that prevented the Applicant from appearing before the Commission leading to Exparte hearing of the dispute, then the Court could not set aside Exparte Award. But I will proceed to revise the Commission's Exparte Award that awarded general damages to the Respondent without proof and without assigning the reason for awarding it. The Commission Award of ten million shillings to the respondent as general damages is hereby set aside. The Applicant have to pay the Respondent Tshs. 300,000/= as a Notice of termination of employment, Tshs. 75,000 as Severance Payment and Tshs. 9,000,000 s as 30 months' salary compensation for unfair termination as it was ordered by the Commission. The Total amount to be paid to the Respondent is Tshs. 9,375,000/=. No order as to cost of the suit. 13