APPLICATION FOR REVISION NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA APPLICATION FOR REVISION NO. 78 OF 2022 (Arising from Labour Dispute No. CMA/ARS/ARS/510/18/132/19 at the Commission for Mediation and Arbitration Arusha) NGORONGORO CONSERVATION AREA AUTHORITY........... 1st APPLICANT VERSUS AZIMIO MAWOLE..................................................................RESPONDENT JUDGMENT 22/05/2024 & 12/06/2024 NDUMBARO, 3 Dissatisfied by the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/ARS/ARS/510/18/132/19 the applicant has filed this application challenging the legality, correctness and proprietness of the proceedings and the award issued by the Commission on the following grounds; 1. That the Commission for Mediation and Arbitration had no jurisdiction to entertain the dispute and issued an award from it for the complaint related to a public employment relationship arose after the enactment of the Written Laws Miscellaneous i Amendment Act (Act No. 13 of 2016) which introduced section 32A of the Public Service Act [Cap 298 R.E] now [298 R.E 2019] 2. That the Commission for Mediation and Arbitration acted illegally in procuring the award by erroneous interpreting and applying the provision of section 26 of the Written Laws Miscellaneous Amendment Act No. 01 of 2020 and proceeded to rule out that the Commission had jurisdiction to entertain the matter. 3. That the Commission for Mediation and arbitration acted illegally in proceedings and denied to admit the respondent's forged certificate in evidence basing on the ground that it was a photocopy while the applicant issued a notice to produce to the respondent and the respondent failed to produce the same. 4. That, the Commission for Mediation and Arbitration acted illegally to procure the award in Labour Dispute No. CMA/ARS/ARS/510/18/132/19 by holding that the applicant unfairly terminated the respondent from employment while there was a reason for termination and proper procedures were adhered. 5. That the Commission for Mediation and Arbitration has acted illegally to award reinstatement and payment of his salaries to the respondent from the date of termination. 6. Any other order that this Honourable Court may deem fit and just to grant. The following is the brief background giving rise to the present application; the respondent was an employee of the applicant since 1st January 1990 and he served in the position of a senior assistant accountant until 28/04/2017, when he was terminated on reasons of forgery of his certificate of secondary education in particular on the mathematics grade. Aggrieved by the termination, the respondent filed his complaint to the Commission alleging that termination of his employment was conducted without affording him the right to be heard and thus, it was in gross violation of the principles of natural justice. Therefore, the respondent sought for reinstatement. The Commission having heard the parties' evidence together with the exhibits submitted before it, gave its award in favour of the respondent as it was found that termination was unfair both substantively and procedural. The Commission went on to order the applicant herein to reinstate the 3 respondent to his position and to pay his salary from the date of termination to the date of the delivery of the award. When the matter was called on for hearing before me, the applicant enjoyed legal services from the office of the Solicitor General on the other hand the respondent was under the representation of the learned counsel Mr. Asubuhi Yoyo. With leave of the court, the revision was disposed by way of written submissions which shall be summarized while I discuss the application. The above said, I wish to start by determining the issue which was put to attention before this court by the applicant's counsel on whether this application was filed out of time. According to the applicant's submission, it is her contention that the issue of time barred had already been dealt by this Court on 29th November 2023 through a preliminary objection raised in the notice of opposition by the respondent and the same was found to be devoid of merit. The applicant's counsel went further to state that in other words, this court is functus officio to determine the issue of time barred, and urged this court to take judicial notice of the existence of the said ruling. In reply, Mr. Yoyo opposed the applicant's argument that this court is functus officio stating that this court has never received evidence and determined the matter of jurisdiction on evidence. The counsel went on to submit that this court ruled out on the point of preliminary objection raised in the original application but currently the respondent has raised it in his counter affidavit with evidence following the amendment of pleadings. It is my view that despite the fact the matter was decided on merit and my hand tangled, but the rules o f practice, prudence and professional conduct do restrict. I ought to respect the code o f conduct unless the decision based on unprofessionalism and it is against overriding objective. From the above principle of law, I am inclined to hold that this court is functus officio as suggested by the applicant's counsel on the reason that the said objection was determined in merit by this Court on 29th November 2023 was determine on merit by Judge Kamuzora through a preliminary objection raised in the notice of opposition by the respondent and the same was found to be devoid of merit. The position is supported with the Court of Appeal decision of Mohamed Enterprises (T) Limited Vs Masoud Mohamed Nasser Civil Application No. 33 Of 2012 CAT Bwana. JA Luanda, 1 A. and Oriyo, J.A Whereby the case involves two applications and two notices o f preliminary objections raised, both in the High Court o f Tanzania and two applications was heard by two different judges o f the same court but at different times with different decision. Thereafter, it was ruled by court o f appeal that second Judge in High Court became functus officio in so far as this matter was concerned. Considering the objection raised by respondent in this case, it is clear that the respondent was accorded with right to defend the PO on merit to proof his case. He is barred to bring new evidence at this stage to proof the objection. And, guided by the above cited authority, my own view, I am enjoined to determine this ground is devoid of merit and I find it worthy to discuss the merit of the application hereunder;- With regard to the first ground as to whether the Commission was clothed with jurisdiction to determine the dispute, the applicant submitted as follows; that the Commission lacked jurisdiction to determine the matter on the reason that the respondent was a public servant employed by the applicant (a public corporation). The learned counsel went on to submit that, the applicant herein is established under 6 section 4 (1) of the Ngorongoro Conservation Area Act, Cap 284 R.E 2002 whose chairman of the Board are appointed by the President of the United Republic of Tanzania. The counsel went further to submit that prior to the termination of the applicant's employment on 19th March 2018, the respondent was a public servant employed by the applicant and that on 7th September 2018 when the respondent was lodging his complaint to the Commission, the Public Servant Act was already amended by introducing section 32A through the Written Laws (Miscellaneous Amendment) Act No 13 of 2016 which requires Public Servant before seeking remedies under the labour laws must exhaust the available remedies provided under the Public Service Act. Expounding further, the counsel stated, a public servant who is aggrieved with the decision of the disciplinary authority provided under the Public Service Act has to appeal to the Public Service Commission. However, it was contention that the respondent herein did not comply with the above mandatory requirement of the law and therefore it was his view that the respondent's complaint before the Commission was pre maturely filed and that made the Commission to lack jurisdiction to hear and determine the dispute. The learned counsel supported his arguments with the following decisions, Tanzania Posts Corporations vs Dominc A. Kalangi (Civil Appeal No. 12 of 2022) [2022] TZCA 154 (28 March 2022) and District Executive Director - Hanang vs Barcelina Munuo and Another (Labour Revision 78 of 2019) [2022] TZHC 3057 (15 February 2022). Responding this ground, Mr. Yoyo's submission was centered on whether the Ngorongoro Conservation Area Authority is a Public Service Office. According to Mr. Yoyo, pursuant to section 3 of the Public Service Act, for one to be a public servant and to be bound by the Public Service Act, he/she must be working in the Public Service Office. The counsel went on to submit that not all offices are Public Service Offices and offices and its employees are not bound by the provisions of the Public Service Act. Mr. Yoyo went on to submit that the applicant's institution is created under Ngorongoro Conservation Act Cap 284. He added that section 25 (b) of the Public Service Act does not require employees from Public Corporations/Parastatals (including NCAA) to appeal to the Public Service Commission against the decision of the disciplinary authority. The learned counsel concluded that not all person employed by the Government are public servants and that not all Government Institutions are Public Service Office and therefore it washis stand thatthe respondent herein was not a public servant and therefore he is not affected by section 32A of the Public Service Act. On the same token, the learned counsel submitted that the respondent herein exhausted all available remedies before filing his complaint to the CMA through exhibit D6. I have meticulously gone through the proceedings of the Commission and it is my observation that the question as to whether the Commission had jurisdiction to entertain the matter was properly dealt with, by the trial arbitrator in his award. For purposes of this application I find it apposite to reproduce part of the holding hereunder in extenso; "Before going on answering issues o f the dispute, I have warned myself on exhaustion o f ail remedies under the Public Service Act [Cap 298 R.E 2019] by the complainant because vide Act No. 13 o f 2016, the Public Service Act was amended by adding section 32A immediately after section 32 whereby the provision provided for a mandatory requirement to public servants to exhaust all remedies provided for under the Public Service Act before seeking remedies provided for in labour laws. That "A public servant shall, prior to seeking remedies provided for in labour laws, 9 exhaust all remedies as provided for under this Act." But before the respondent was not one o f the institutions envisaged under the said provisions o f the Act until the amendment o f 21st February 2020 through section 26 o f the Written Laws Miscellaneous Amendment Act No. 01 o f 2020 which amended section 16 o f the Government Proceedings Act by adding subsection 4 immediately after subsection 3 that; " For the purposes of subsection (3), the word "Government" shall include Government Ministry, local government authority, independent department, executive agency, public corporation, parastatal organization or a public company established under any written law to which the Government is a majority shareholder." Therefore, I find in the interest o f justice that the amendment o f the Public Service Act was inexistence the time the complainant filed his complaint." To add on the above, I have also gone through the Public Service Act, on the interpretation clause, a public servant is defined as a person holding or acting in a public service office. Moreover, the section has also defined a public service office to be a paid public office in the United Republic charged with the formulation of Government policy and 10 delivery of public services other than- (i) a parliamentary office; (ii) an office of a member of a council, body whether or not corporate, established by or under any written law; (iii)an office the emoluments of which are payable at an hourly rate, daily rate or term contract; (iv)an office of a judge or other judicial office; (v) an office in the police force or prisons service; (b) any office declared by or under any other written law to be a public service office. Moreover, the Ngorongoro Conservation Area Authority Act Cap 284 R.E 2002 in particular on section 4 has established the authority as a body corporate and not a Government entity. In that regard, I join hand with the trial arbitrator that before the amendment vide Miscellaneous Amendment Act No. 1 of 2020 which gave a clear meaning of what constitute a "Government", the applicant herein was not a Government entity but rather a Public Corporation and in that respect she was not covered by the mandatory requirement of the provision of section 32A of the Public Service Act. That said, grounds number one and two are hereby dismissed for want of merit. Coming to grounds number three, the applicant challenges the denial of the Commission to admit the respondent's forged certificate on the ground that it was a photocopy while the applicant issued a notice to ii produce to the respondent and the respondent failed to produce the same. Rules governing the reliance of secondary evidence are provided under section 67 and 68 of the Evidence Act Cap 6 R.E 2019. Section 67 provides as follows; "67.-(1) Secondary evidence may be given o f the existence, condition or contents o f a document in the following evidence cases- (a) when the original is shown or appears to be in the possession or power of- (i) the person against whom the document is sought to be proved; (ii) a person out o f reach of, or not subject to, the process o f the court; or (Hi) a person legally bound to produce it, and when, after the notice specified in section 68, such person does not produce it;" Moreover, in the case of Daniel Apael Urio vs Exim T. Bank (Civil Appeal 185 of 2019) [2020] TZCA 163 (26 March 2020), the Court gave two conditions for a party to rely on secondary evidence. The following is the holding of the Court; 12 "In terms o f section 68 o f the TEA, before the appellant could rely on the copy o f the document there were two options open for him that is, one; serving the party in possession o f the document with a notice to produce the document in court, or two, by requesting the court to issue summons to the party in possession o f the document to appear in court and testify." Going by the typed proceedings of the Commission, at page 9 appears that one Samson Thomas while testifying on behalf of the applicant informed the Commission that he issued notice to produce to the respondent under section 67 and 68 of the Evidence Act since the applicant had no original copy ofthe certificate. Nevertheless,the Commission rejected the admission of the secondary evidence on the reason that the respondent herein denied to have the original copy as he left it to the applicant. To my understanding of section 67 and 68 of the Evidence Act, since the applicant herein had already issued notice to produce to the respondent, the law permitted him to rely on the said photocopy of the certificate as a secondary evidence and therefore it was improper for the Commissionto reject the admissibility ofthe photocopy of the respondent's certificate. It is my view thatthe 13 applicant right to be heard was denied and the right to be heard is above other rights. Therefore, I found this ground has merit. The above said, I now turn to the fourth ground where the applicant faults the decision of the Commission that termination was unfair while there was a fair reason for termination and proper procedures were adhered. Unfortunate, while I was passing through the applicant's submission it is to my surprise that this ground was not submitted by the applicant. In other words, it is good to say that the applicant has abandoned this ground and for that reason this court is also not bound to discuss the same unless and until it was a ground based on a point of law. That said, the CMA award that the applicant's termination was unfair both substantively and procedural was decided without merit, the applicant was not heard. I therefore supervisory power of High Court under Section 76 (1) (b) and 79 (3) of Civil Procedure Code Cap 33 RE 2019 and order this matter to remitted back to CMA to another Arbitrator for hearing from the admission of the tendered exhibit and decide the matter on merit. Thus, the hearing should start from when the applicant was denied the right to be heard on admission of exhibit to proof his case 14 and all proceedings starting from the admission of the exhibit there after are hereby quashed and nullified. In the premises, I consequently return the matter back to CMA for hearing. No order as to costs. It is so ordered. 15