REV NO 22979 OF 2024 ORYX SERVICE AND SPECIALITIES LIMITED VRS GODWIN MDACH

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 22979 OF 2024 CASE REFERENCE NO. 202409161000022979 BETWEEN ORYX SERVICES AND SPECIALITIES LIM ITED..................... APPLICANT VERSUS GODWIN M DACH I.......................................................... 1st RESPONDENT LAWRENCE JWANANSALE MWASEBA........................... 2nd RESPONDENT JUDGEMENT Date of last Order: 14/ 11/2024 Date of Judgement: 15/ 11/2024 MLYAMBINA, 3. The Respondents were employees of the Applicant employed on diverse dates. They were terminated from employment on 14/07/2021 for the reasons which are not apparent at this juncture. Aggrieved by the termination, they referred the matter to the Commission for Mediation and Arbitration (herein CMA) where the dispute was registered as CMA/KIN/281/2021. After considering the evidence of the parties, the CMA decided in favour of the Respondent. Being dissatisfied by the CMA's decision, the Applicant filed the present application which is premised on the following grounds: i. That, the Commission for Mediation and Arbitration had no jurisdiction to determine and entertain the labour dispute hence reaching to an irrational Award. ii. That, the trial Arbitrator erred in law and fact for failure to properly analyse and scrutinize the parties' evidence and testimonies thus reaching an irrationalAward. The application proceeded by way of written submissions. Before the Court, the Applicant was represented by Mr. Ceasor Sebastian Kabissa, learned Counsel. On the other hand, learned Counsel Felix W. Makene appeared for the Respondents. On the first ground, Counsel Kabissa submitted that the dispute between the parties herein was instituted at the CMA's offices at Ilala while the cause of action arose at the Applicant's workstation located at Mandela Road, Kurasini within Dar es Salaam Region. He stated that his argument is supported by the testimony of DW1, DW2 and exhibit D3. He added that the Respondents' duty station, place of employment and recruitment was Kurasini area, Temeke upon which the cause of action arose. Counsel Kabissa argued that the dispute ought to have been filed at the CMA's offices at Temeke Region which had requisite territorial jurisdiction to determine the dispute instead of CMA's offices at Ilala zone. He stated that though the objection was raised before the CMA, the same was dismissed and the matter proceeded on merit. It was the Counsel's further argument that the issue of jurisdiction needs to be determined prior merits of the case because it is a bedrock on which Courts authority and competence to determine any matter before it rests as it was decided in the case of Mwananchi Communications Limited & Others v. Joshua K. Kajula & 2 Others, Civil Application No. 126/01 of 2016, Court of Appeal, Dar es Salaam. Counsel Kabissa submitted that the dispute was instituted at the CMA Ilala contrary to Section 15 (1) (e) (ii) & (iii) o f the Labour Institutions Act [Cap 300 Revised Edition 2019] (herein LIA) and Rule 22(1) o f the Labour Institutions (Mediation and Arbitration) Rules, GN. No. 64 o f2007 (herein GN. No. 64/2007). In support of the submission, he cited the cases of Christian Michael v. Ujenzi Secondary School, Revision No. 178 of 2013 and Sylivanus Msomi v, Bayport Financial Services Ltd, Revision No. 220 of 2010, High Court Dar es Salaam (unreported). In response, Counsel Makene submitted at length how preliminary objection is determined before the CMA, where and when does the cause of action arose. I appreciate his comprehensive submission which will be considered in the decision. As regards to the ground at hand, he submitted that; it is on record of the proceedings of the CMA that the Respondents proved through evidence that the cause of action arose at the Applicant's Head office located at TANHOUSE, Victoria, along Bagamoyo Road, Kinondoni District. Thus, within the jurisdiction of the CMA at Kinondoni Zone. He stated that the Respondents letters in respect to accusation, letter to show cause and suspension came from Kinondoni. Investigation and investigation report was done at Kinondoni. He added that letter for invitation to disciplinary hearing came from Kinondoni. Lastly, disciplinary hearing, appeal and termination all revealed to have been conducted at Kinondoni. It was Counsel Makene's strong submission that the CMA at Kinondoni was vested with jurisdiction to mediate and arbitrate the dispute placed before it. As rightly argued by Counsel Kabissa, jurisdiction is a bedrock upon which a Court's authority to determine any matter tabled before it rests. If a Court proceeds to determine a matter without jurisdiction the proceedings thereto and the subsequent decision becomes nullity. Thus, for avoidance of any inconvenience, it is prudence for the jurisdictional issue to be determined before going to the merit of the matter. In the case at hand, the issue of jurisdiction was raised at the CMA and the same was considered by the Arbitrator before determining the merit of the application. Territorial jurisdiction is the first issue determined by the Arbitrator in the impugned decision. Whereby, after considering the evidence of the parties, the CMA found that the dispute was properly filed at CMA Kinondoni because all disciplinary actions against the Respondents were initiated ad completed at the Applicant's head office located at Tan House, Kinondoni District. It is undisputed that the Respondents were employed by the Applicant and stationed at Mandela Road, Kurasini, Dar es Salaam as it is reflected in the employment contracts (exhibit D3 and D4). It is also undisputed that the misconduct which resulted to termination of the Respondents' employment was committed at LOBP Kurasini Deport, as evidenced by a show cause letter, exhibit D6. In his submission, Counsel Makene argued that the cause of action arose where the employee receives the termination letter. He is therefore suggesting that since the termination letter and other disciplinary proceedings were conducted at the Applicant's head office at Tanhouse, Kinondoni District, then the dispute was properly filed at CMA Kinondoni as rightly found by the Arbitrator. However, I don't share the same view with Counsel Makene. It is my view that the cause of action in employment matters arose at the place of work of the employee. In this case, the misconduct which resulted to termination of employment was committed at the Respondents working station. Therefore, the conduct of the disciplinary procedures at the head offices does not in anyway change where the cause of action arose. It is just administrative issues or way of handling the employer's office which should not be misconstrued. It is expected that the employment records of the employee in question and any other matter in relation to the employee's employment may be easily obtained in his workstation. On such basis, the cause of action arose at the employee's place of work regardless of being terminated in the same place or elsewhere. Rule 22(1) o f GN 64/2007provides as follows: A dispute shall be mediated or arbitrated by the Commission at its office having responsibility for the area in which the dispute arose, unless the Commission directs otherwise. The above position was also held in the case of Christian Michael (supra). It is undisputed that Kurasini area is within Temeke District. Therefore, as per Rule 22 (1) (supra), the CMA Kinondoni had no territorial jurisdiction to entertain the matter. 6 In the result, I find the present application has merit. The CMA's proceedings before CMA Kinondoni and the subsequent Award are hereby quashed and set aside. The Respondents may pursue their matter to the proper CMA office by following proper procedure if they are still interested. It is so ordered. Y.J. MLYAMBINA JUDGE 15/11/2024 Judgement pronounced and dated 15th November, 2024 in the presence of Counsel Felix Makene holding brief of Ceasor Sebastian Kabissa for the Applicant and Felix W. Makene for the Respondents.