20140110 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 48 OF 2012 BETWEEN MUHIMBILI NATIONAL HOSPITAL............................... APPLICANT VERSUS SHABANI ISSA OMARI .............................................RESPONDENT RULING 13/12/2013 & 10/01/2014 S.A.N. Wambura, J. \ . The Applicant Muhimbili National Hospital filed this application seeking revision of the award of Commission for Mediation and Arbitration (CMA). The brief facts of the case are that, the respondent was terminated from his employment on the ground of misconduct which arose from an allegation of theft. He was criminally charged with the offence of theft and was acquitted. ·This .was in the year 2008. It is in the record that the matter was referred to the Conciliation Board sometime in 2008 though there is no decision of the same. In February, 2010 the respondent by way of a letter applied to revive the · dispute at CMA. It was agreed and the matter was heard exparte. CMA commission ordered that he be reinstated. It is doubtful if there is any law which allows such a procedure. 1 Being aggrieved the applicant filed an application for setting aside exparte award but CMA dismissed it for want of sufficient grounds of non appearance. This application was thus filed. This application was heard by way of written submission where by Ms. Heller appeared for the applicant and the respondent appeared in person. The applicant adduced reasons on non issuance of summons to appear and that Mr. Malima was in staff review and the legal officer Ms. Neema Giiti was sick. However, no documentary exhibits were produced to prove the same. The court cannot rely on mere allegations. I am thus in agreement with the arbitrator that the applicant failed to adduce good reasons for failure to attend hearing at CMA. I would thus dismiss the application at this juncture. However as stated earlier I have noted that the proceedings at CMA were a nullity as it was not properly filed before it, taking into account that the matter was pending at Conciliation Board since 2008. CMA could therefore not entertain the matter as requested by the respondent in the year 2010. The applicants have made a long submission on this however, I have not considered the same as it was not the right place and time for them to do so. I took note if it while perusing the records and because it is a 2 matter concerning the jurisdiction of CMA. CMA had no jurisdiction to entertain this matter. In the circumstances, I accordingly nullify the said proceedings and award there in. S.A.~ura JUDGE 10/01/2014 3