nkwabi p mdehwa another vs barrick gold mine buzwagi 2018 tzhcld 28 13 april 2018

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 264 OF 2016 BETWEEN NKWABI P. MDEHWA & ANOTHER............................ APPLICANTS VERSUS BARRICK GOLD MINE BUZWAGI.............................. RESPONDENT RULING Date of Last Order 14/03/2018 Date of Ruling 13/04/2018 NYERERE. 3. This is an application for revision of the Commission for Mediation and Arbitration (CMA). The applicant in this case prays this Court among others, to call for records the CMA dispute no. CMA/SHY/51/2014 and Labour Dispute No. 223/2014 so that it may examine its legality therein. The respondent opposed the Application through a Counter Affidavit drawn by STEVEN HAULI, and raised a preliminary objection on point of law that:- 1. That, the Applicants application is res judicata 2. That the Applicants application is bad in law for hopelessly (sic) time barred. 3. That the Applicants application for revision is bad in law, frivolous and misconceived. At the hearing Mr. Senguji Advocate appeared for the applicant while the Respondent was represented by Mr. Steven Hauli Advocate. Submitting in support of the 1st Preliminary Objections, Mr. Steven Hauli Counsel for respondent argued that this matter originates from CMA No. 51/2008 on 4/6/2008 at Shinyanga. That the CMA issued Certificate of Settlement in which applicants were to be paid Night shift allowance in Public Holiday days and any due unpaid leave if any. Further counsel for respondent averred that applicant also claimed Certificate of Service; thus filed Revision No. 223/2014 at Dar es Salaam Registry. The revision application did suffer incompetence for wrong and non-citation, therein the court directed parties to go back to CMA for quantification. After quantification Mabula Kabadi was to be paid T.shs. 931,400/= and Nkwabi Mdehwa T.shs. 800,600/=. Counsel for respondent went on to observe that both parties signed the CMA order which recorded the agreement, in which Nkwabi Paschal Mdehwa was paid on 24th May, 2016 and Mabula Makungu Kabadi was paid on 30th June, 2016, both applicant received payments before Hon. Mwidunda. On submitting in regard to Ruling of this court dated 9/2/2016, which originates from CMA case No. 51/2008 at Shinyanga, Counsel for respondent averred, the revision has been finally determined. Submitting on the second Preliminary Objection Counsel for respondent argued that Revision No. 51/2008 and 208/2008 are time barred. And in addition case No. 208/2008 is nowhere in this court or at CMA. Counsel for respondent went on to argue that the present application does not comply with legal requirement, as Revision No. 223/2014 has already been decided by this court, thus this application be dismissed. In rebuttal Mr. Senguji Counsel for Applicant, on responding to respondent's submission argued that, at CMA/SHY/208/2008 dispute, it was Hon. Mwidunda who did quantification, the same was signed by 1st applicant on 24/05/2016. And vehemently argued this matter has not been determined, he argued that, this court ordered the case to be remitted to CMA Dar es salaam for quantification. At the CMA the applicants were not satisfied with the quantification, which is why they come back to this court through the current application. Counsel for Applicant admitted that Revision No. 223/2014 had already been determined and proceeded to establish that the provisions used to file this revision are applicable provisions of law which allow filling Revision in this Court; the revision is properly before this court. Counsel for Applicant responding to the second Preliminary objection averred that it is on record that this Revision was filed on 28/6/2016 and Kabadi 2nd respondent received his entitlements on 30/06/2016. He concluded that this revision is not time barred as it was filed within time. He prayed the Preliminary objections be dismissed and the current revision be fixed for hearing. In rejoinder Mr. Steven Hauli Counsel for Respondent reiterated his submission in chief. Having carefully gone through parties arguments, court records, and relevant applicable labour laws; my decision on the above points of preliminary objections are as hereunder. Commencing with the 2nd ground of the Preliminary Objection on whether or not the present application for revision is time barred. This Court revisionary powers are specified under section 94(1) (b) (i) and 91(1), (2) of the Employment and Labour Relation Act, No. 6 of 2004 read together with Rule 28 of the Labour Court Rules GN No. 106 of 2007 which empowers this Court, on its own motion or on application by party or interested person, call for the records of any proceedings which have been decided by any responsible person or body implementing the provisions of the Act; In circumstances where:- (a) To have exercised jurisdiction not vested in it by law; or (b)To have failed to exercise jurisdiction so vested in it by law; or (c)To have acted in the exercise of its jurisdiction illegally or with material irregularity; or (d)That there has been an error material to the merits of thesubject matter before such responsible person or body involving injustice, (e)The Court may revise the proceedings and make such orders as it deems fit: In the instant case the record shows that the Mediator recorded the settlement agreement, which is CMA F. No. 5; and then drafter a settlement agreement under Rule 13 (2) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, GN. No. 67 of 2007 that requires; "Where the parties have settled the dispute, the mediator shall draft a settlement agreement" Further it is in record, the CMA after quantifying the settlement agreement as per the Labour Court order dated 9/02/2016. The CMA stated that on 03/03/2016 the applicants were to be paid shs 4,130,600. And therein the Commission agreed that the payment to be effectively made to both applicants on 10/03/2016, in which thepresentapplication for revision to this court was filed on 28/06/2016. From the above facts it is clear that the application is time barred. The applicant filed this application for revision after expiration of six weeks from the date the award/settlement agreement was procured contrary to section 91(l)(a) of the ELRA which require application for revision to be filed within six weeks. Applicant's counsel argument in regard to application being time barred that Kabadi Makungu Mabula 2nd applicant received his payment on 30/06/2016 and the application for revision to this court was made on 28/06/2016. With due respect to counsel for applicants, the law under Section 91(1) (a)(b) of the ELRA 91(1) specifically provide that Revision proceedings to this court may be brought within six weeks, when the applicant discovers improper procurement or defect involves improper procurement. In the event I sustain the preliminary objection raised by respondent counsel that the present application is time barred for being filed in court after 108 days contrary to section 91(1) (a) & (b) of the ELRA which require application for revision of the CMA award be filled within six weeks (42 days) from the date the settlement agreement/award was procured. 6 From the above observation I find no need to embark on the 1st preliminary Point of Objection, as the matter has been disposed of already. In the end result I hereby sustain the objection raised and the current application is hereby dismissed for being time barred. It is so ordered. A.C. Nyerere JUDGE 13/ 04/2018