olafsson sequeira vs powerbank and backup ltd 2021 tzhcld 33 10 march 2021

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT PAR ES SALAAM REVISION NO. 781 OF 2019

BETWEEN

OLAFSSON SEQUEIRA APPLICANT

VERSUS POWER AND NETWORK BACKUP LT^£..^^RESPONDENT JUDGMENT^ Date of Last Order: 10/02/2020 tg Hundred^hpusand (Tshs. 100,000/=), Airtime allowance of Tanzania shillings one hundred and sixty thousand (Tshs. 160,000/=) and Bonus. From the date he commenced his employment, and contract to the terms of the contract and the labour laws, respondent was unfairly paying him less salary to what he was entitled and agreed under the contract, and i was also not paid call allowances, airtime allowances and bonus as per the contract. That often applicant engaged with the respondent as his employer requesting payment of full salary and allowances as he was having hard time to meet his needs, in which at all times the respondent promised to pay him but did not do that until, contract was runninSro afraid. Ik W After been informed the respondent i%not intending tp^renew contract, he went to National Social Security ^ndj(NSSF)tb follow his contributions to help him and his family bef^Sliying^tljej country. It was found out that the respondent never Emitted retributions to NSSF despite deducting the same fr^^his ^al^^AppJHteant was not aware that the respondent was not remitting his contributions to NSSF until sometimes on June, 2019 when he ma|e follby^upyo collect the same before living the country and found respondent never remitted the same. That after se€R^^^^ndent was determined to

deprive him of his legal rignts^ona^jAugustk 2019 he filed an application for condonation at CMA pra^^hebye^tir refer his complaints for breach of contract and uft^labou^^cfiGes out of time, that ended being dismissed. N^w applicant is challenging, the ruling of the Commission for Mediationrend Arbitration at Dar es Salaam ("CMA") delivered on 13th September, 2019 by Hon. Abdallah, Mediator, dismissing the applicant's application for condonation to refer his dispute out of time, raising following, 2 Legal issues for determination:- (a) Whether the mediator erred in law and fact, for failing to observe that the breach of contract was continuous and therefore not all the claims were out of time. (b) Whether the mediator erred in law and fact, in dismissing the whole suit as time barred while the same frw^ve^ifferent cause of action within different time limit. (c) Whether the mediator erred in law and fact in holding thatMie^ promised to pay but did not (d) Whether the mediat^^red failing to observe the circumstances thakmade tnhapp^ant to delay and injustice that the applicant^vas subjected i|. Respondent filed^^^^^ffldavit to challenge revision sworn by Mr. Zepharia Derema^Rti^aii)^^ggurce Consultant. Hearing was by way of written ^itaissi^^kBoti^paraes submitted along lines their affidavits. applicants struggle is for him to be heard on merits. It iswrincip|e om law that where

a court has been moved, to hear the parties^the court is duty bound to hear the applicants and the respondent in reply. Failure to hear a party is an error which goes to the root of the matter and is fatal. Rule of natural justice states that no man should be condemned unheard and, indeed both sides should be heard unless one side chooses not to. It is a basic law that, no one should be condemned to a judgment passed against him without being 3 afforded a chance of being heard. The right to be heard is a valued right and it would offend all notions of justice if the rights of a part were to be prejudiced or affected without the party being afforded an opportunity to be heard. To the best of my understanding, the Principles of natural justice should always be dispensed by the court, that is both pities must be heard on the application before a final decision. Tailipawhic^ttwe is miscarriage of justice as it is wrong for the jud^^o imp^^nMrder on the parties and such order cannot be allowed®)stand. Implicit in the concept of fair adjudication lie cardinal princi^ no man shall be condemned unheard. Principles of.natural justic^must be observed by a. the court save where theirMpplica^n^is^exeluded expressly or by necessary implication. It is unbproceduraMjor a court to give judgment against the defendant wit^t giving^y an opportunity of being heard. Every judicial or^ quasimidicial

tribunal must apply the fundamental principles ofenatural justice and natural justice will not allow a^p^^^nto jeopardized in his person or pocket without giviS^hmisgan opportunity of appearing and putting forwar^ms|cas‘e^Fhe issue of denial of the right to a hearing is a point of lav^whicn^mderline the proceedings the effect of which is to render a proceeding^nullity. In the case of Ridge Vs. Baldwin [1963] 2 All ER 66, it was insisted that the consequence of the failure to observe the rules of natural justice is to render the decision void and not voidable. Official of the court must comply with the rules of natural justice when exercising judicial 4 functions. Right to be heard was insisted in the case of Kijakazi Mbegu and five others Vs. Ramadhani Mbegu [1999] TLR 174. In determining an application for extension of time, there are guiding established principles to be considered by the court, to ensure justice is done and a party is not unfairly denied the right to be^earck In the case of Thomas Ngawaiya Vs. Attorney General and^S^thersk Civil^Case No. 177 of 2013; High Court of Tanzania at Dares Salaarmfenr^grted) at page 10 that, "However, In determining the question of iimit^on^hvo principles must be considered, in the first place, the courfimustloo^'a^ the whole suite framed including the relief^ddght^andseeif^th^uit combines more than one claim based on different

causes ofaction as one of them may be found to be time barred^^et^'vther may not In such circumstances, it is ribt^propertf/dlsmiss the whole suit as time barred/' ~ The^other p^fep^is^^principle of continuing breach of contract. This principle^s^s^ined under Section 7 of the Law of Limitation Act the case maybe, continues." This principles was discussed in the case of Thomas Ngawaiya Vs, The Attorney General and 3 others Intel's that, were an action for breach of contract is repeatedly in every month, a fresh period of limitation 5 being to run afresh at every moment of the time the breach of contract continues. The delay to refer his complaints to CMA was highly contributed by the respondent who was promising to pay full salary and other entitlements but in vain. Also was caused by the circumstances of his employment as a foreigner. He had to trust the resp^idem^ho was his employer, could resolve his claims. But also, his NSSF contributions* came into his attention when he visited NSSF and found out the^respondent never remitted the same. ^8* From the facts of the case, pleadmsNana^arguments by both counsel, it is crystal clear tha^the^^^^pwtgi of an unpaid salaries, allowances and respondent failute to rer^tJWS-S.F contribution. There are issues of same of claim claimed to<be ojit of time others not. The above raised issue cannot be determined if applicant will not be given

right to be heard. Thi^ourt-JiKtheVcaso of Bakari Salehe, & 232 others, Vs. Tanzania.CigaratexCompany Rev.No. 525/2019 on issue of mixed claims held fear mat:^tr There^are serious issue mixed together in this matter, that need to be seriodsly determined on merits by CMA. There are some applicants who were not in all the application filed. The only remedy is to hear both of them, and in cause each one rights will be divulged. Justice demand, case to be heard on merits at the CMA. Thus ruling subject of this revision is quashed and set aside. Case to proceed at the stage reached by another arbitrator. 6 Equally in this case there are mixed claims, that need to be heard as evidence is required. Thus, ruling of CMA dated 13th September, 2019 is quashed and set aside. Applicant to file dispute at CMA within 45 days from today. Revision application allowed. 7