mussa abdallah mussa another vs falcon animal feeds ltd 2023 tzhcld 1413 6 september 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION APPLICATION NO. 131 OF 2023 (Arising from the Decision o f the Commission for Mediation & Arbitration o f DSM at KIN) Dated l ? h May 2023 in Labour Dispute No. CMA/DSM/KIN/158/2022) MUSSA ABDALLAH MUSSA................................ ...,1st APPLICANT HASHIM SAID NAI.......................................... ..2nd APPLICANT

VERSUS FALCON ANIMAL FEEDS LTD..................................... RESPONDENT

JUDGEMENT 15th -August - 6th Sept 2023 OPIYO, 3 This decision on Revision Application which was filed by the applicant against the CMA decision in a Labour Dispute No. CMA/DSM/KIN/158/2022, Igogo, M., Arbitrator that dismissed the applicants' application for being time barred. The prayers contained in the Chamber summons are: - 1. That this Honorable Court may be pleased to call for the records, quash and revise set aside the Arbitral Award of the Commission issued by Hon. Igogo in Labour Dispute No. No. CMA/DSM/KIN/158/2022 dated 12th May 2023.

2. That this Honorable Court after quashing and set aside the said impugned award, remit the matter back to CMA for the matter to be heard on merits.

3. Any other reliefs as this Honourable Court may deem fit and just be granted. The background of the dispute leading to this application as grasped from affidavit and counter affidavit filed by the parties as stated hereunder. The applicants were employed by the Respondent on diverse dates. For long they were not availed with employment contracts. When they claimed for the same through TUICO official, the employer decided to terminate them without a reason or following any procedure or paid any terminal benefits. Being aggrieved, the applicants filed the matter to the Commission, claiming for compensation for unfair termination plus other terminal benefits. At CMA the applicants were awarded leave pay, notice pay and severance allowance, on the reason that the applicants could not benefit remedies for unfair termination as they were for specific task. Not satisfied with the award the respondent filed Revision Application No. 206 of 2022 before this court. The CMA proceedings and award was subsequently nullified quashed and set aside for lack of CMA records. The matter was remitted back to CMA to start afresh before another arbitrator. As there was no records the applicants started the proceedings by filing the matter afresh. They filed the application against only one respondent Falcon Animal Feeds Limited after dropping the other two the Director, Falcon Animal feeds. At the

CMA labour dispute with Reference No. CMA/DSM/KIN/158/2022 was filed, but the same was dismissed after the commission upholding the preliminary objection that by suing different parties from those in the original matter for which the proceedings was nullified, it was time barred against the new party. This is what triggered the current revision application. The application is supported by the applicants' affidavit. The respondent opposed the application by filing the counter. The applicants' affidavit enumerates the three legal issues that require this court's determination as follows: - i. That the arbitrator erred in law by not considering that the order of the Court for fresh trial was issued on 20th October 2022. ii. That the arbitrator erred in law by not considering that the Director is the owner of company, the respondent herein. iii. That the arbitrator erred in law by not considering that, what was raised by respondent as preliminary objection was not a pure point of law on the reason that it needed evidence to determine. At hearing the application proceeded orally, whereby applicants were represented by Mr. Hemedi Omary, Personal Representative while respondent was represented by Mr. Amoni Lwiza, learned counsel. In his submission Mr. Hemedi argued 1st and 2nd second grounds jointly by submitting that on 20th October 2023 the order was issued in Revision. No. 206 of

2022 directing the parties to go back for trial de-novo at CMA on the reason that the court failed to procure CMA records for the former application eliminating the possibility of revision the proceedings. On 21st October 2022 the applicants appeared before CMA for filing a claim as per court order. After filing the respondent raised preliminary objection that the application was time barred and that the application was against the High Court directives in Revision No 206 of 2022 between these parties leading to the dismissal of the application on the ground that indeed the indeed the matter was out of time. Mr. Hemedi argued that, the arbitrator erred in law in reaching interpretation that Managing Director and Falcon Animal Feed Ltd are different persons, she disregarded the fact that parties were before the High Court were the same. He stated that in filing CMA Form No. 1 there is a chance of introduction of the one who is responsible in the organization and contact person. It is in such circumstances the name of the Director appeared originally. And as Rule 24(8) and 25 of GN No. 64 2007 allows amendment at any time, deciding to drop the director and remaining with the company only in re hearing is not tantamount to suing a different party as decided by the arbitrator. He further submitted that the parties in CMA/DSM/KIN/R. 148/17/1040 were the same who appeared in Rev No.

206 of 2022 who were directed to file a matter which was eventually filed in CMA Form No.l on 21st October 2022. He added that the arbitrator has never brought an objection of not knowing the applicants. He thus, prayed for the decision of the CMA to be quashed and set aside, also the order for the matter to be heard by another arbitrator. In reply to this these points by the applicants' representative, Mr. Rwiza, learned counsel submitted that the parties who were in the former application were the applicants herein and the Managing Director, Falcon Animal Feed Ltd as per the annextures in the application. He does not dispute the fact that the parties went to the CMA, but instead of maintaining the same parties as in the previous applications, they preferred Falcon Animal Feeds Ltd alone dropping the Managing Director after the matter being remitted back to CMA. According to him, those are different parties, Managing Director and Falcon Animal Feed Ltd that's why the preliminary objection was sustained by the CMA on the basis that the two parties, Managing Director and Falcon Animal Feed Ltd are different; hence the application acquired a status of being new application and not trial de novo of the previous application. For that reason, he is of the view that, the new application against the new party is already out time and no leave of the court was granted the same to be

refiled. Mr. Rwiza submitted that the applicants chose to change the name of the respondent from the Managing Director to Falcon Animal Feed Ltd. He added that they also changed the claim from compensation severance pay, General Damages, notice and certificate of Service in the CMA Form No. 1 upon the file being remitted to CMA by praying for reinstatement and salary arrears. On that basis he is of the view that the two changes were contrary to what was remitted back. Challenging applicants' argument that CMA ought to have changed name under Rule 24(8), 25(3), and Rule 25(8) of G.N No. 64 of 2007 and rule 25(3), Mr. Rwiza submitted that, the changes are not automatically done by CMA, but it has to be noted that applicants are the ones who decided to change the name of the respondent. He insisted that, according to G.N No. 64 of 2007 give a room to a party who wishes to change name to make application. Therefore, the applicants should exempt themselves from such legal obligation. He prayed for the application to be dismissed and let the applicants follow this courts direction in the former revision. In rejoinder Mr. Hemedi reiterated his submission but emphasized that since the matter was opened afresh, nothing was wrong for the applicants to change the name, so long parties were the same and respondent allegation regarding new claim lacks legal stance. He reiterated what

he submitted in chief. In answering the ground regarding the effect of changing respondent's name, the applicants insisted that the arbitrator erred in law in interpreting that Managing Director and Falcon Animal Feed Ltd are different persons, according to them nothing was wrong by suing employer rather than a director, since the matter was fresh as per court directives. On other hand the respondent maintained there was a serious need of suing the same person, the Managing Director of Falcon Animal Feed Ltd. In their view failure to do so, justified the holding that the applicants sued a wrong party and thus their application was time barred. Being guided by the applicant's submissions and his sworn statements together with the record of the CMA, this Court is called upon to address two issues. The first issue is whether the applicant has adduced sufficient grounds for this Court to exercise its revisional power over CMA decision in No. CMA/DSM/KIN/158/2022. The gist of the discussion at CMA was that the applicants sued a different person from the one they had sued in the previous suit that was ordered for trial de novo. Also that being a fresh case for being against a new party it was time barred since labour dispute for unfair dismissal has to be filed within 30 days from the date of termination. It is true in terms of the holding in Christina Mrimi v Coca Cola kwanza

Bottlers LTD, Civil Application No. 113/2011 the managing director, Falcon Animal feeds LTD and Falcon Animal Feeds Ltd are different persons in law, the fact which may have the effect of vitiating proceedings if switching between the parties is not done properly. The issue is the effect this has in the matter before me. However, in this matter the order for trial de novo was after failure to reconstruct the CMA records as the records could not been located. That means there was nothing in a form of pleadings to rely on for the retrial. In a normal order for retrial, it is only the proceedings which are nullified, the pleadings remain intact. That is the reason the CMA FI had to be filed afresh, leading to assignment of a new dispute no altogether. The former matter was Labour dispute No. CMA/DSM/KIN/R. 148/17/1040 while the current one is CMA/DSM/KIN/ 158/2022. In my considered view, the trial that entails filing fresh pleadings like in this matter is a unique retrial different from the one in which the same trial file is remitted back to the trial court for retrial. In the latter the same pleadings are used in retrial. No filing of new pleadings is required. In former, like the one at hand, new pleadings are to be filed as there is no old record to rely on. In such circumstances, minor changes that improve pleadings and that does not prejudice the other party should be

accommodated as parties have no previous records to make reference to for retrial. If the applicant realized that he had sued a wrong party in terms of capacity under which one is sued and could make changes to sue a proper party as part of improvement, that itself does not vitiate the proceedings by mere drop of a suing a party in a former capacity. From the records, in the former matter the applicants sued the Managing Director, Falcon Animal Feed Limited while in this case they sued, Falcon Animal Feed Limited, their employer direct. This, I believe, is after realizing that, given the nature of their claim, that could only stand against the Employer rather than the management of the employer, for which the same objection on suing a wrong party could be sustained. In my view the effect of the difference in parties in this matter is distinguishable from the one in Cocacola Kwanza Bottlers Ltd (supra) in that, the names the two names, Coca Cola Kwanza Bottlers limited and Coca Cola Kwanza limited could mean two distinct companies all together which hinders execution against one for the decree granted is against or in favour of the other. But in our case, company is the same, i.e. Falcon Animal Feeds Limited. Just that in the previous dispute the applicant purported to have sued the management of the company instead of a company itself as a separate legal entity capable of being

sued on its own name. What can be concluded from the above analysis, in my considered view is that uniqueness of the retrial that was ordered for failure to trace trial records in this matter gave the applicant a chance to switch the capacity of the parties the sued without fear of being accused of having not complied with the court order for retrial as explained above. It remains the same party for the purpose of retrial in such circumstance. It will be absurd to ask the applicants to maintain the same party in the capacity he had sued it, while knowing that the claim will not stand against that party under the former capacity he was sued in. It follows therefore that as it has been held above that the applicant sued no new party by changing the capacity of the respondent from its management to its personal capacity. Thus, no issue of time limitation could arise for suing a new party constituting a new dispute, because of the retrial order. It is the same dispute that was ordered for retrial. The application was therefore not time barred. Regarding the allegation by the respondent that there was a new claim, I am aware of the principle that parties are bound by their pleadings as was discussed in numerous cases. {See Makori Wassanga v. Joshua Mwaikambo and Another [1987] TLR 92; Peter Ng'hc Attorney General, Civil Appeal No. 114 of 2011, (CAT), DSM (unreported); and that of

Astepro Investment Co. Ltd v. Jawinga Investment Limited, Civil Appeal No. 8 of 2015, (CAT), DSM (unreported)). However, things are different in this application as already noted earlier that the records that are available are of freshly filed application as per new CMA form no 1. In Revision No. 206 of 2022 the CMA records with Reference No. CMA/DSM/KIN/R.148/17/1040 was nullified for the matter to start afresh after as there was no record at all including CMA Form No.l which we could made reference to for the purpose of knowing the original claim. In my view, the allegation of new claim could have a legal stance only in existence or presences of the original records (pleadings of the parties). This argument therefore also lacks merits. Having found that the preliminary objection sustained by the Commission lacked merits as above explained, the only remedy is to quash and set aside the said impugned decision as I hereby do. The matter is remitted back to CMA before another arbitrator to be heard on merits. Each party to bear its own costs. M. P. OPIYO,

JUDGE 6/9/2023 12