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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB-REGISTRY AT MOROGORO MISC. LABOUR APPLICATION NO. 15922 OF 2024 {Originated from CMA/MOR/42/2021 at the Commission for Mediation and Arbitration at Morogoro) MINESEC TANZANIA COMPANY LIMITED APPLICANT VERSUS ISSA SALUM NAKAJA & 13 OTHERS RESPONDENTS RULING 24/09/2024 & 30/09/2024 KINYAKA, J.: Pursuant to Rule 24(1), 24(2)(a), (b), (c),(d), (e), and (f), 24(3)(a), (b), (c), and (d), 24(11); sections 55(1); 56(1), (2), (3) of the Labour Court Rules, G.N. No. 106 of 2007; and section 93 of the Civil Procedure Code Cap. 33 R.E. 2019, the applicant moved this Court to exercise its discretion to enlarge time within which she may prefer revision against the eYyC^/teaward of the Commission for Mediation and Arbitration hereinafter the "CMA" before Hon. Kayugwa Haji, Arbitrator dated 25^^ October 2022 in Labour Dispute No. CMA/MOR/42/2021. The application Is supported by an affidavit sworn by Khalida Mohamed Matengo, Principal Officer of the Applicant who contended that upon receipt of the eA-yca/fe award of the CMA, the applicant lodged an application to set aside the expa^te^^N^ir6 but the same was dismissed on 16^^ February 2023. He stated that the applicant received a copy of the ruling on 12^^ June 2024. He contended that the ex parte award is tainted with illegalities for the respondents' failure to effect proper service upon the applicant and for the CMA's receiving the evidence of the only witness of the prosecution before the CMA, one Issa Salum Nakaja without oath. The application was vigorously opposed by the respondents vide their counter affidavit affirmed by Issa Salum Nakaja. He contended that applicant failed to account for the period of delay to file revision and that the application is geared at wasting the time of the Court and the respondents. At the hearing of the application, Mr. Hassan Nchimbi learned advocate appeared for the applicant and the respondents enjoyed the services of Mr. Boniface Edward Basesa, Secretary of DOSHITWU Trade Union. Mr. Nchimbi began his submissions by adopting the affidavit in support of the application to form part of his submissions. He stated that there are illegalities manifested in the exparte?m^x6 of the CMA. He argued that Issa Salumu Makaja (PWl) who was representing the rest of the respondents testified before the CMA without taking oath contrary to Rule 25(1) of the Labour Institution (Mediation and Arbitration) Guidelines G.N. NO. 67 of 2007 read together with section 4(a) of the Oath and Statutory Declarations Act Cap. 34 R.E 2009 and the decision of the Court of Appeal in Unilever Tea Tanzania Limited v. Davis Paulo Chaulo, Civil Appeal No. 290 of 2019 which held on page 6 of the decision that swearing in of a witness before he testifies is a mandatory requirement. He added that the omission vitiates the proceedings because it renders the evidence taken without oath invalid. Mr. Nchimbi submitted further that there was improper or uncertainty of service of summons upon the applicant as the applicant was not informed of the pendency of the Labour Dispute No. CMA/MOR/42/2021 before the CMA. He contended that the applicant was not served by publication before the CMA proceeded with the dispute ex parte. He informed the Court of the requirement that before a court issues an ex parte heannq order, it should make sure that all possible means are employed to secure the appearance of the opposite party to the case relying on the case of T.M Sanga v. Sadrudin G. Albhai & 2 Others(1977) LRT 51, on page 8 where it was held that uncertainty of service of summons is sufficient reasons for allowing an application to set aside an judgement and decree thereof. - He relied on the decision in the case of Principal Secretary, Ministry of Defence and National Service v. DP Valambhia (1992) TLR 185 to argue that illegality constitute sufficient cause for extension of time as held by the Court of Appeal that when a point at issue is one alleging illegality of the decision being challenged, the court has a duty even if it means extending the time for the purpose, to ascertain the point and if the alleged illegality is established, the court has to take appropriate measures to put the matter and the record right. He prayed for the Court to grant the applicant. Mr. Basesa started by adopting the contents of the counter affidavit to form part of the respondents' reply submissions and a prayer for dismissal of the application with costs for lack of merit aimed at wasting the time, and resources of the parties and the Court. He submitted that the reason that PWl did not take oath before giving his testimony and improper service are not good cause for delay in the present application but appropriate in the application for revision. He submitted that PWl gave his testimony under oath and the Arbitrator performed his duties properly under section 88 of the Employment and Labour Relations Act R.E. 2019. He added that the applicant had no any reasonable excuse not to enter appearance as she was duly served through her Director Mr. Khalid Matengo. He was of a view that there is no illegality in the proceedings of the CMA. He submitted further that the applicant failed to inform the Court of the cause of delay by defaulting to account for each day of delay from when he received the award of the CMA on 28^^ December 2022 until the filing of the present application. He contended that upon receiving a copy of the exparte award, the applicant filed an application to set aside the exparte^m^xd. but did not appear on the date set for hearing of the respondents' preliminary objection against the application which prompted the CMA to dismiss the applicant's application to set aside the ex pa/fe award for want of prosecution. He argued that the applicant is wasting the time of the Court in an attempt to deny the respondents' right to enjoy the fruits of the CMA award. Mr. Basesa informed the Court that according to Rule 30(1) and (2) of the Labour Institutions (Mediation and Arbitration) Rules G.N. No. 64 of 2007 and section 90 of the Employment and Labour Relations Act Cap. 366 R.E. 2019, the applicant should have applied to set aside an ex parte award instead of a revision before the Court. He argued that the Court lacks jurisdiction to entertain the intended revision and so powers to grant leave to file revision out of time. He prayed for the dismissal of the application with costs for lack of merit. In his rejoinder, Mr. Nchimbi contended that the Court has jurisdiction under Rule 28(1)(c) of the Labour Court Rules G.N. No. 106 of 2007 hereinafter the "Rules" which provides for the powers of this Court to revise the proceedings of the CMA either in its own motion or upon an application by a party, relying on the decision of the High Court in the case of Mkombozi Commercial Bank PLC v. Bernice Asnath Ngaka, Misc. Labour Revision No. 12 of 2022. Upon closure of the parties' submissions, and based on the applicant's ground of illegality raised to support the present application, the Court is mandated to adjudicate whether there is illegality in the proceedings of the CMA in Labour Dispute No. CMA/MOR/42/2021 culminating to the exparte award dated 25^^ October 2022. But before determining the grounds of illegality, I thought it prudent to begin with the issue of jurisdiction raised by Mr. Basesa. Mr. Basesa contended that this Court lacks jurisdiction to entertain the present application as the applicant ought to have applied to set aside ex parte award and not preferring the present application in order to subsequently file a revision. I do not agree with Mr. Basesa's proposition. On the contrary, I agree with Mr. Nchimbi, learned advocate that this Court has jurisdiction to entertain revision from ex parte award and hence, the present application for extension of time to prefer the intended revision. Rule 28(1)(a)of the Rules provides: 28(1) The Court may, on Its own motion or on application by any Revision party or interested person, caii for the record of any proceedings which have been decided by any responsible person or body implementing the provisions ofthe Acts and in which no appeal iies or has been taken thereto, and if such responsible person or body appears- (a)to have exercisedjurisdiction not vested in it by law; or (b)to have failed to exercisejurisdiction so vested; or (c)to have actedin the exercise ofitsjurisdiction illegally or with materialirregularity; or (d) that there has been an error material to the merits of the subject matter before such responsible person or body involving injustice, (e) the Court may revise the proceedings and make such order as it deems fit: Provided that, any party to the proceedings or otherwise iikeiy- to be adversely affected by such revision shaii be given an opportunity to be heard. In the case of Mic Tanzania Ltd v. Imelda Gerald, Civil Appeal No. 186 of 2019 [2022] TZCA 141 (23 March 2022), the Court of Appeal expounded the above provision in relation to this Court's revisionary powers against orders stemming from the CMA. On page 5 through to 6 of its judgment the Court underscored that: "The powers of the Labour Court on revision are set out in section 91(1)and(2)ofthe Empioyment and Labour Reiations Act[Act No. 6 of2004]("the ELRA ")as elaborated in rule 28(1) of the Labour Courts Rules (G.N. 106 OF 2007] ("the Rules"). What is apparent from the above provisions is thaf the Labour Court when exercising its revisionaijurisdiction, may revise any proceedings of the arbitral tribunal where among others, it acted on material irregularity or there has been material errors involving injustice."[Emphasis Added]. In the instant matter, as the applicant's complaint is based on the illegality in the proceedings of the CMA that resulted to the award, this Court has powers to revise the proceedings and resultant ex parte award of the CMA implementing the provisions of the labour statutes. Moving to the merit of the application, the illegality of the proceedings and the resultant ex parte award of the CMA was the only ground raised by the applicant in this case. I agree with Mr. Nchimbi that illegality constitute a good cause for delay [See the decision of the Court of Appeal in Lyamuya Construction Co. Ltd v. Board of Registered of Young Women's Christian Association of Tanzania, Civil Application No. 2 of 2010 (2011)TZCA 4(3 October 2011)]. I also take the position of the Court of Appeal in the case of Principal Secretary, Ministry of Defence and National Service v. DP Valambhia (supra) that when a point at issue is one alleging illegality of the decision being challenged, the Court has a duty to extend time for the purpose of ascertaining the illegality, and once established, the Court is enjoined to take appropriate measures to put the matter and the record right. Having examined the records of the present application, I have found the two grounds of illegality raised by the applicant as clear points of law that can be manifested on the face of the proceedings of the CMA which if proven, will mandate this Court to grant extension of time so that the proceedings can be rectified. In Lyamuya Construction Company Ltd. (supra), the Court of Appeal on page 9 made the following observations: "Since every party intending to appeai seeks to chaiienge a decision either on points ofiaw or facts, it cannot in my view, be said thatin VALAMBIA'S case, the court meant to draw a generai rule that every applicant who demonstrates that his intended appeal raises points of iaw should, as of right, be granted extension of time if he applies for one. The Court there emphasized that such point of iaw must be that of sufficient importance and^ I wouid add that it must aiso be apparent on the face of the record, such as the question of jurisdiction; not one that wouid be discovered by a iong drawn argument or process." [Emphasis Added]. I have thoroughly read the hand written and typed proceedings of the CMA. In the first component of the ground of illegality, the applicant complained that PWl, the only witness of the respondents before the CMA testified without oath. For purpose of clarity, I find it apposite to reproduce the typed proceedings of the Tribunal dated 21^ July 2022,a reflection of the hand written proceedings which reveal the following: "USHAHIDI WA WALALAMIKAJI SHAHIDINA 1 Jina: Issa Saium Nakaja Umri: 40 Kazi: Miinzi Makazi: Magomeni Temeke Dar es Saiaam Dini: Islamic (Kiapo) EXAMINA nON IN CHIEF Comp Rep l/s Pl/Vl" 10 From the above excerpt of the proceedings, it is clear to me that PWl testified under oath. I am of settled position that the CMA was only obliged to indicate that the oath was administered to the witness before he adduced his evidence which it did. In emphasizing on the role of the court to indicate that the witnesses were really sworn, the Apex Court of the land in the case of Attu J Myna v. CFAO Motors Tanzania Limited, Civil Appeal No. 269 of 2021 had this to say: 'We are Increasingly of the view that the court record should speak for Itself. The Court cannot work on assumption; hence the Arbitrator wassupposed to show In the proceedings that the witnesses took oath before they gave their respective evidence. Even though In the course ofpreparing the award, the Arbitrator Indicated asshown atpage 223 ofthe record ofappeal thatPWl had taken oath before she gave evidence as contended by Mr. Mayenga, It will not serve any purpose because this ought to have been Indicated soon after taking the personal particulars of each witness. Having the above authority in mind, I am therefore of a considered opinion that, as long as there was a statement by the CMA that PWl undertook a sworn statement, the same is sufficient to prove that the testimony of PWl was received by the CMA under oath. In conclusion, I hasten to hold that 11 there was no contravention of the Rule 25(1) of the Labour Institution (Mediation and Arbitration) Guidelines G.N. NO. 67 of 2007 read together with section 4(a) of the Oath and Statutory Declarations Act Cap. 34 R.E 2009 as argued by the applicant. In the second component of the ground of illegality, the applicant complained that there was improper or uncertainty as to service of summons upon him as he was not informed of the pendency of the Labour Dispute No. CMA/MOR/42/2021. Contrary to the applicant's contention, the record reveal that CMA issued summons to the applicant on 5^^ May 2022 which was duly received by the applicant through her Manager Griday Lwambuka on 14^^ May 2022. Upon failure by the applicant to appear before the CMA on 16^^ May 2022, the Honourable Arbitrator ordered hearing of the complaint to proceed ex parte. In the circumstance, there was no need for the CMA to order substituted service upon the applicant in the presence of proof that the latter duly received summons for hearing of the labour dispute [See the case of Abutwalib Musa Msuya Others vs Capital Breweries Ltd & Others (Civil Revision No 2 of 2012) 2016 TZCA 549(25 April 2016)]. It follows therefore that the two points of illegality raised by the applicant are devoid of merit. Consequently, I hold that there were no such illegalities 12 in the proceedings and the resultant award of the CMA in Labour Dispute No. CMA/MOR/42/2021. In considering the point raised by Mr. Basesa of the default by the applicant to account for the period of delay, I had to revisit the depositions in the affidavit in support of the application. I noted in the affidavit that the applicant deposed that from 25^^ October 2022 when the exparte Qv^ard of the CMA was issued, she engaged in the filing of her application to set aside the ex parte award on 12^^ December 2022. The CMA dismissed the application on 16^^ February 2024 whose copy of the decision was received by the applicant on 12^^ June 2024 culminating to the filing of the present application on 4^^ July 2024. Even by assuming that the powers of this Court extends to consideration of the depositions made in the affidavit in support of the application in determining whether the applicant managed to account for each day of delay, the applicant failed miserably to account for her delay both in her submissions before this Court and her affidavit in support of the application. Reading the record of the CMA in Labour Dispute No. CMA/MOR/42/2021, it reveals that the ex parte a\Nar6 of the CMA was issued on 25^^ October 2022. Copy of the ex parte award was received by Khalid Mohamed Matengo, Principal Officer of the applicant on 29^^ November 2022. On 12^^ December 13 2022, the applicant lodged an application to set aside ex award of the CMA vide Misc. Application No. CMA/MOR/25/2022. The applicant did not appear before the CMA on 26^^ September 2023 for hearing of the preliminary objection raised by the respondents to the application to set aside the ex/7e^e award. The application to set aside ex parte award dismissed for want of prosecution on 16^^ February 2024. In the applicant's affidavit, there has been no account of the period of the applicant's delay from 16^^ February 2024 when the ruling was issued to 12^^ June 2024 when the applicant collected a copy of the ruling considering that the respondent received a copy of the same ruling on 16^^ February 2024. All the same, there has been no account of the period of the applicant's delay from 12^^ June 2024 when the applicant collected a copy of the ruling to 4^^ July 2024 when she filed the present application. It is clear from the above summary of events that the applicant demonstrated neglect, gross negligence and recklessness in her failure to promptly prefer the present application. In view of the above observations, I find the present application devoid of merit and I proceed to dismiss the same. Considering that the present application relates to a labour dispute, I make no order as to costs. 14 It is so ordered. DATED at MOROGORO this 30^^ day of September 2024. 0r4<A court I. A. KINYAKA o'/C- c> T JUDGE Uj A ■t- 0: > Vv. 30/09/2024 Court; Judgment is delivered in open court by F.Y. Mbelwa, Deputy Registrar this 30^^ September 2024 in the presence of Issa Salum (one of the respondents) and in the absence of the applicant and other respondents. F.Y, MBELWA 2^ DEPUTY REGISTRAR -5^ X 30/09/2024 )S n o ^Vi iQ Right of appeal fully explained F.Y. MBELWA DEPUTY REGISTRAR 30/09/2024 15