CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA ( CORAM: MKUYE. J.A.. KAIRO, J.A. And MDEMLI, J. A.l CIVIL APPEAL NO. 465 OF 2023 NYANDA NYANDA................................................................... APPELLANT VERSUS NOKIA SOLUTIONS AND NETWORKS TANZANAIA LTD............ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Dodoma (MambLJ.) Dated the 20th day of September, 2022 in Labour Revision No. 21 of 2021 JUDGMENT OF THE COURT 20th & 28th March, 2025 MDEMU, J.A.: In Labour Revision No. 21 of 2021, the High Court of Tanzania was moved by the respondent company so as to revise two decisions of the Commission for Mediation and Arbitration (the CMA) in the application for revision appearing at page 287 of the record of appeal. The first is MISC/APPL/CMA/DOM/9/2021 in which the respondent's move to set aside the ex-partedecision in CMA/DOM/82/2020 was unsuccessful. The second one was the latter which awarded the appellant reliefs pleaded in CMAF1 in the absence of the respondent. Initially, the appellant lodged a complaint before the CMA advancing two main claims. One, is the payment of extra duty allowances amounting to TZS 82,847,886.20 and two, is in respect of relocation expenses of TZS 8,478,638.20. It would appear the respondent did not enter appearance leaving the dispute to be determined ex-parte against it. Having heard the appellant alone, the CMA decreed the following on the 2nd February, 2021: "AMRI Baada ya kujiridhisha kuwa mlalamikiwa hakumlipa mlalamikaji malipo ya uhamisho pamoja na malipo ya masaa ya ziada, naamuru mlalamikiwa kumiipa mlalamikaji stahiki zifuatazo: Malipo ya uhamisho................................. 8,478,638.24/=. Malipo ya masaa ya ziada......................... 82,847,886.20/= JUMLA KUU........................................ 91,326,524.44/=." This time, the respondent's company became aware of the decree and, as said previously, sought unsuccessfully the indulgence of the CMA to have it set aside. It thus rushed to the High Court for redress. In the course of revising the two decisions of the CMA, that is the ex-parte one and the refusal to set aside the ex-parte decision alone, the High Court, Mambi J. opted to deal with the ex-parte decision leaving the other one unattended. The learned Judge on that account ended his findings in the following version appearing at page 623 of the record of appeal: "In the interest o fjustice, I order and direct that the matter be remitted to the CMA to be determined afresh by a different arbitrator in accordance with the law if parties wish to do so." The appellant was discontented with this decision of the High Court, he thus sought the indulgence of this Court advancing the following eight grounds of appeal: 1. That, the honorable Judge o f the High Court erred in law by holding that the proceedings and award o f the CMA were tainted by irregularity as the mediator proceeded ex-parte without notifying the respondent herein, and thus, she was denied the right to be heard. 2. That, the honorable Judge o f the High Court erred in law by holding that the proceedings of the CMA were tainted with irregularity since the mediator changed to an arbitrator without the consent o f the parties. 3. That, the honorable Judge of the High Court erred in law by finding that the proceedings and award o f the CMA were tainted with irregularity due to failure to notify the respondent herein of the date o f the ex-parte decision/award. 4. That, the honorable Judge o f the High Court erred in law by finding that the arbitrator failed to evaluate the evidence and made the decision without dear reasons. 5. That, the honorable Judge of the High Court erred in law for ordering the matter to be remitted to the CMA to be determined afresh by a different arbitrator in accordance with the law if the s parties wish to do so without considering that the matter had not reached the stage o f arbitration during the CMA. 6. That, the honorable Judge o f the High Court erred in law by ordering the matter to be remitted back to the CMA to be heard among the parties herein without showing if the respondent herein had shown sufficient reasons for her failure to appear during the mediation hearing. 7. That, the honorable Judge erred in law for mainly basing on arguments raised by the respondent herein while neglecting to consider argument o f the appellant herein as contained in his reply written submissions. 8. That, the honorable Judge erred in law for mainly basing on revising the ex-parte decision without first concentrating on an application for setting aside an ex-parte judgment which was the role o f the revision. The appellant appeared in person, unrepresented, prosecuting his appeal on 20th March, 2025 when it was placed before us for hearing. On the part of the respondent company, Mr. Alex Mianga, learned advocate appeared to defend the appeal. Both parties to the appeal stood by the contents of their written submissions they had earlier on filed in support of and resisting for the appeal. To begin with, the appellant filed 33 pages written submissions and also was able to amplify orally at the hearing in support of the raised grounds of appeal. For ease of understanding and clarity, we have condensed both oral and written submissions with a focus on the following main points: One is a complaint that the mediator assumed the role of an arbitrator. Two, that the respondent defaulted appearance at the CMA. Three, that the High Court Judge had no justification to order re-arbitration on a dispute which was yet at the mediation stage. Four, that there was no material within which to base the ex-partedecision and finally, a failure by the learned High Court Judge to determine a decision that refused to set aside the ex-parte decision. The points which we have just raised, in our view, would take care of the lengthy written and oral submissions together with the complaints in all eight grounds of appeal. Starting with the complaint that the mediator assumed the role of an arbitrator, Mr. Nyanda submitted that in labour disputes, the decision of the CMA under section 87 (3) (b) of the Employment and Labour Relations Act, Cap. 366 (the ELRA) is not an arbitration and therefore, what the mediator did in the impugned ex-parte decision was within his jurisdiction, thus he did not assume the responsibilities of an arbitrator either way. He added that, holding that the mediator turned himself to an arbitrator, in the circumstances, the High Court slipped into an error. Regarding the respondent's default in appearance at the CMA, the appellant had two observations. First, he conceded that the appellant was not served with the notice to appear at the delivery of the ex-parte ruling. He however argued that, the respondent was not prejudiced because it became aware of the ruling and took necessary steps to have it set aside. Second, the appellant faulted the respondent's deliberate actions to default appearance while it was duly served with the notice of hearing. He could not therefore comprehend and conceive any justification to fault the CMA for hearing the appellant alone. He ultimately implored us to dismiss the respondent's assertions regarding nonappearance for want of substance. He backed up his argument by citing to us the case of Barclays Bank Tanzania Limited v. Ayyam Matessa (Civil Appeal No. 481 of 2020) [2022] TZCA 189 (12 April 2022; TanzLII). As to the re-arbitration order, his submissions hinged on one aspect that, as the labour dispute had not reached the arbitration stage, that is, it was still in the mediation stage, it was not proper for the learned High Court Judge to refer the matter for re-arbitration. On evaluation of evidence regarding ignoring the material evidence within which to base the ex-parte decision, the appellant submitted in his written submissions from page 25 through 30 that there was evidence within which to base the ex-parte decision. He thought the evidence was overwhelming. Regarding the High Court's Judge abeyance to consider the ruling which refused to set aside the ex-parte decision, the appellant submitted that, the revision exercise focused more on the ex-parte decision. His argument was that, the learned Judge should have commenced to determine the decision which refused to set aside the ex-parte decision. He, in the end concluded that, the appeal has merits, thus urged us to allow it. In reply, besides the contents of the written submissions, which he stood by it, Mr. Mianga submitted that the respondent was not served with the notice of hearing in the address of service appearing at pages 15-16 of the record of appeal. He thus said, there was no proof of service, as such, the CMA was not justified to procced ex-parte against the respondent. Regarding the conversion of the mediator to an arbitrator, his argument was that, having found that the respondent defaulted appearance, the mediator would have marked the mediation as failed in terms of section 86 (3) and 87 (3) (d) of the ELRA. He added that, as a general rule, mediation involves dialogue among the parties, having the mediator in between assisting them to amicably resolve their dispute. As he proceeded ex-parte and awarded the appellant what he claimed in CMAF1, the counsel thought the mediator slipped into an error because those powers are residual to the arbitrator. Important also to him was that, consent of the parties was not sought. He thus said, the mediator strained into an error in assuming such an arbitral role. Replying on the ex-parte award, his argument was that, the claims were not proved as the appellant did not tender any document to substantiate the alleged claims. The learned counsel thus concluded on this point that, what the appellant submitted regarding proof of the claim ex-parte is a submission at the bar which has never been evidence. The learned counsel finally submitted that, having such an omission, the usual consequential order open to the learned High Court was to remit the matter to the CMA for re-arbitration. That to him could not have been avoided casually. He thus argued that, the leaned High Court Judge properly directed himself to remit the matter to the CMA so that both parties to the dispute be heard. A rejoinder by the appellant was mostly a reiteration of his written submissions and the subsequent oral clarification in chief. Now, from what the parties submitted and having in mind the contents of their written submissions, grounds of the appeal together with the entire record of the appeal, we are indeed indebted to determine the instant appeal. Before we stretch that much far, we note the obvious that, the CMA entered an ex-parte decision for nonappearance of the respondent. Again, the record is certainly clear that the CMA declined the invitation of the respondent to set aside the ex-parte decision on the ground that, the respondent did not establish sufficient cause which prevented it from attending at the hearing. We also note at page 287 of the record of appeal that, the respondent invited the High Court to revise both the refusal to set aside ex-parte ruling in MISC/APPL/CMA/DOM/9/2021 and the ex-parte decision in CMA/DOM/82/2020. With these clear contents of the record of appeal, we think we should begin with ground eight (8) of the appeal we fore reproduced. The main grievance in that ground is on the failure by the learned Judge who sat on revision proceedings to revise the decision of the CMA which refused to set aside the ex-parte decision. In resolving this ground of appeal, we think the starting point should be the decision itself. We are saying so because, as we fore alluded, the respondent referred both decisions to be revised by the High Court. We will revert to this at a later stage on its propriety, that is, whether it was proper for the respondent, in one application, to require the High Court to revise two decisions from two distinct applications. As to the revisional work of the High Court, it is quite obvious in the impugned judgment appearing at page 612 of the record of appeal that the High Court revised only an ex- parte ruling as it reads in part hereunder: " THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA (LABAOUR DIVISION) ATDODOMA LABOUR REVISION N0.21 OF2021 (Arising from Labour Dispute No. CMA/DOD/82/2020 at the Commission for Mediation and Arbitration for Dodoma) NOKIA SOLUTIONS TANZANIA LIMITED....APPLICANT VERSUS NYANDA NYANDA.............................RESPONDEMT JUDGMENT Date o f Judgment:20/09/2022 Mambi, J. This is an application for revision o f an ex-parte decision (uamuzi wa upande mmoja) o f the Commission for Mediation and Arbitration in (CMA) at Dodoma in the complaint No. CMA/DOD/82/2020." Given the above excerpt from the record of appeal, it is clear to us that the learned Judge determined the ex-parte decision which awarded the appellant TZS 91,326,524.44 comprising of extra duty pay and relocation allowances. That entails that, ipso facto, the High Court did not stretch to revise the refusal to set aside the ex-parte decision. This essentially is the basis of the appellant's complaint. The appellant therefore argued that, the learned High Court Judge should have first revised the decision which refused to set aside the ex-parte decision before revising the substantive ex-parte decision. On our part, we think there is substance in the argument of the appellant. Putting it differently, the High Court revised the ex-partedecision of the CMA prematurely. Our view is that, having the two decisions placed before him for revision, wrongly though, the learned High Court Judge faced two options. One, he would have abstained from entertaining the revisional invitation of the two decisions because the application before him was an omnibus. Two, as argued by the appellant, the learned High Court Judge would have chosen to revise the decision that refused to set aside the ex-parte decision instead of what he did. Now that he made an order to have the matter remitted to the CMA for both parties to be heard, we think, much as that was the only remedy open to him, there was no material upon which to base, save for in the course of revising the decision which refused to set aside the ex-parte decision. We are saying so because, it is through revising such a decision, the learned Judge would have found whether or not there were sufficient cause which prevented the respondent from attending the hearing of the dispute at the CMA. That notwithstanding, we are in agreement with Mr. Mianga that, it is not clear in the record of appeal if at all the respondent was served with the notice of hearing on the address of service appearing at page 16 of the record of appeal. In the CMA proceedings at page 249 of the record of appeal, the dispute was set for arbitration on 19th November, 2020, but it could not proceed because the presiding arbitrator was indisposed. Again, on 2nd December, 2020, arbitration was shelved because the presiding arbitrator was on leave. It is not indicated in the two arbitral schedules if the respondent was present or absent because the coram in the two scheduled dates is silent regarding the status of the respondent. When the matter came for arbitration on 21st December, 2020 the coram before the CMA as recorded at pages 250 and 251 of the record of appeal shows as hereunder: "21/ 12/2020 Msuluhishi: Helen Mtawa Akidi Mlalamikaji: Yupo Mlalamikiwa: Hayupo Hali ya Shauri: Kusikilizwa Ushahidi wa upande mmoja" We note the following in the above excerpt: One, it appears the arbitrator decided suo motuto proceed with the arbitration proceedings in the absence of the respondent because, the record does not indicate if the appellant present prayed so. Two, there was no prior order made by the arbitrator to proceed with the arbitration proceedings ex-parte. Three, it is not indicated anywhere in the record of appeal if any attempt to procure the attendance of the respondent in the arbitration proceedings was made. In our view, the foregoing is wrapped up in one fact that, there was no proof of service. For that matter, the arbitrator had no justification to proceed with arbitration proceedings in the absence of the respondent. We fortify that position by our decision in Barclays Bank Tanzania Limited (supra), at page 506 of the record of appeal that: "On the first standpoint, we have no doubt that since mediation under the ELRA is compulsoryjust as it is for arbitration and that it constitutes an integralpart of the CMA dispute settlement process, unreasonable failure to appear during each o f the two stages leads to a similar inference that the party in default is not serious to prosecute or defend the claim. Thus, unless there being justification for the default, dismissal of a suit or decision o f the merit o f the same in his or her absence, is a natural foreseeable consequence as correctly in our view, held by the Labour Court Judge." In the instant appeal, we demonstrated, and worthy reiterating that the respondent was not served through the address filed in the CMA for that purpose. Equally, there was no prior order made to proceed with mediation in the absence of the respondent and further that, the CMA did not bother at all to ensure the respondent was duly served for it to be condemned with the alleged default in attending the mediation proceedings, mostly for reasons best known to it. 13 Having settled that, we now revert to what we reserved earlier regarding propriety of the application for revision presented before the High Court. We stated above that, the respondent moved the High Court to revise two decisions of the CMA in one application. In the notice of application appearing at page 287 of the record of appeal, the respondent invited the High Court to revise Miscellaneous Labour Application No. MISC/APPL/CMA/DOM/9/2021. As alluded to, the High Court was invited by the respondent to revise the propriety and or the correctness of the refusal of the CMA to set aside the ex-parte decision. The second decision arose in Labour Dispute No. CMA/DOM/82/2020. This is the one which awarded the appellant reliefs prayed for in CMAF1 in the absence of the respondent. We note that, these are two distinct decisions arising from two distinct applications, as such, placing them in one application made the application an omnibus one. See for instance, Ali Chamani v. Karagwe District Council & Another (Civil Application No.411/4 of 2017) [2018] TZCA 177 (6 September,2018; TanzLII) and Juma M. Nkondo v. TOL Gases Limited/Tanzania Oxygen Limited & Another (Civil Application No.382/01 of 2019) [2021] TZCA 372 (12 August 2021; TanzLII). The High Court therefore should not have entertained the said application for revision for being omnibus. That notwithstanding and given the foregoing, we are satisfied that ground eight alone suffices to dispose of the whole appeal, as such, we do not find any arising need to deliberate on the remaining grounds of appeal as fronted by the appellant. We therefore allow the appeal to that extent with directions that the CMA should hear both parties in Labour Dispute No. CMA/DOM/82/2020. This being a labour matter, we direct each party to bear their own costs. DATED at DODOMA this 28th day of March, 2025. R. K. MKUYE JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL The Judgment delivered this 28thday of March, 2025, in the presence of the Appellant in person and Mr. Alex Mianga, learned counsel for the Respondent Via Video Conference from Dar es Salaam, is hereby certified as a true copy of the original. r~ '