polycem tanzania limited vs silvester augustino and 30 others 2021 tzhcld 333 5 july 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM LABOUR REVISION NO 144 OF 2020 BETWEEN POLYCEM TANZANIA LIMITED APPLICANT VERSUS SILVESTER AUGUSTINO AND 30 OTHERS........... RESPONDENT JUDGMENT Date of Last Order: 24/06/2021 Date of Judgment: 05/07/2021 T,N Mweneqoha, J. This Application emanates from the Commission of Mediation and Arbitration (CMA) Award issued against complaint no. CMA/DSM/KIN/R.659/16/810 by Hon. Muhanika on 25th October 2017. ■■ The applicant prays for this court to revise and set aside the decision of the CMA which dismissed an application to set aside its ex parte award entered on 25/10/2017 by Hon. Muhanika, Arbitrator. i The Applicant is aggrieved by an ex-parte Award which was delivered in favour of the respondents. Moreover, the applicant is also aggrieved of CMA's decision of declining to set aside the ex-parte Award. In his application for revision, the applicant is advancing the following grounds: 1. That this Honorable court be pleased to revise and set aside the Commission for Mediation and Arbitration [CMA's] decision of 31/03/2020 dismissing an application to set aside the CMA ex-parte award of 25/10/2017 value TZS=76,320,000/= in favor of the respondents and order inter parties hearing to proceed. 2. Any other order(s) deemed fit for good ends of justice be granted ,sv£,'- The applicant enjoyed legal services of advocate Dickson Mtogesewa while the respondent was represented by Mr. Daudi Maziku Madiku. In the commencing of submission of the applicant's case, Mr. Mtogesewa prayed for this Court to adopt the applicant's affidavit sworn by Dickson Mtogesewa. Mr. Mtogesewa provided that the Arbitrator proceeded against the applicant without service of referral to Arbitration. It was his argument that 2 the want of service to the applicant has never been contested by way of factual depositions from respondents, neither before this court nor before CMA in the course of an application to set aside the said ex-parte Award. Mr. Mtogesewa further alleged that the respondents did not give ■ - evidence that they have saved the applicant, adding that where there is no proof of service, this court has held that it is not correct to continue with ex- parte Arbitral proceeding. He cemented this argument by referring to the case of Ruth Lembuya vs Mohamed Hassan & 51 Others Labour Revision No.550 of 2016 at page 4 where the court held that CMA had erred when it proceeded ex-parte when the applicant was not properly saved. Mr. Mtogesewa also advanced on submission that the learned Arbitrator misconduct herself by striking out the applicants supplementary affidavit without hearing both parties regarding the said supplementary affidavit. In proceeding with another ground, Mr. Mtogesewa submitted that in the course of an Application to set aside ex-parte award, the applicant had 3 raised a point that the complaint was referred out of time as it was referred on 30/6/2016 on the claim of 30/05/2016. That is above 30 days. It is his view that it was irregular for CMA not to entertain the issue of limitation which goes to the root of jurisdiction at that stage of attempting to set aside the award. Because in terms of Rule 10 of Labour Institutions (Mediation & Arbitration) Rules GN 64 of 2007 it requires complaints of unfair termination to be referred to the Commission within 30 days. In surmising his arguments, Mtogesewa submitted that since the Counter Affidavit does not counter the Affidavit on the grounds of revision, then that amounts to admission. He referred to the case of East African Cables (T) Ltd vs Spencon Services Ltd Misc. App 61/2016 in support of this argument. It was the prayers of the applicant that this court set aside the CMA Award and the revision be upheld as there is good cause and sufficient reasons for granting revision. In replying to the applicant's submission, the respondent's representative, Mr. Madiku submitted that CMA was correct deciding to 4 proceed ex-parte as the applicant did not want to make appearance in the CMA. Mr. Madiku told the Court that the applicant refused to receive summons several times, and all these incidents have been proved before CMA. Mr. Madiku further submitted that they also sent summons to the applicant via postal service, where all the proof was tendered and registered at CMA. It was the contention of Mr. Madiku that postal services are reliable and acceptable manner of serving summons and in this case, there is evidence that in all instances the summons were delivered and evidenced by the receivers' signature. He argued that all these evidences were tendered at CMA. On the ground of the matter being out of time, Mr. Madiku submitted that, this is incorrect as the matter was instituted at CMA in time and even f MJ the applicant himself was satisfied with the matter being in time and agreed to continue at Mediation stage without any objection. On the second grounds that the CMA struck out the affidavit of the applicant, it was stated that this is not true as the CMA struck out the affidavit of the applicant after being satisfied that the CMA ordered ex-parte hearing in accordance with section 88 (8) (a) of the Employment and Labour 5 Relations Act as amended with Act No. 3/2006 read together with Rule 25 (b) of GN 66/2007. He said, it was not a mistake done by the CMA but it was governed by the mentioned law. He therefore prayed for this application to be dismissed as the applicant brought his application after the decision dated 25/10/2017. In rejoinder, it was the applicant's argument that supplementary affidavit is the supporting affidavit which was addressing the ex-parte order, hence they were not heard and the applicant is aggrieved. & He submitted that, the claim that they refused summons is not correct as there is no summons exhibited to the Court or CMA therefore, these claims are unjustified. It was also the applicant's argument that, the claim that postal forms are not court records were not exhibited anywhere, even in counter affidavit. In addressing the issue of limitation of time, it was applicant's argument that even if the same was not raised before the CMA, it can be raised at any stage in time as the issue of limitation goes to root of jurisdiction of the CMA and to this court. He further submitted that it was 6 raised in the cause of hearing of the application to set aside ex-parte judgment but was disregarded. It was the applicant's submission that their understanding is that the respondent did not contest that the matter was out of time but are contesting that the issue was not raised during hearing at CMA. After listening to the submission of both sides, the court finds two issues which need to be addressed. Those being whether the Arbitrator erred in hearing the matter ex-parte and whether the matter is time barred. J The Court has revisited applicant's grounds that there was no proof of service of summons to the applicant. I have keenly gone through the records, it is revealed that when the dispute was at mediation stage the applicant appeared through the representation of Yahaya Mtete, personal representative. The record also reveals that from when the dispute was referred to Arbitration the applicant never entered appearance. The CMA records shows that, on 30/06/2016 summons was sent and received by L. David, again on 21/11/2016 summons was sent to the applicant and received by Chaunywe, thereafter on 20/12/2016 another summons was sent and refused to be received by the applicant. The available summons proves that 7 the applicant was aware of the dispute at the CMA but he neglected to appear on his own accord. Therefore, he cannot claim that he was not properly served under the circumstances of the case. I have considered the applicant's ground of time limit. The record shows that the respondents were terminated on 30/05/2016. As per Rule 10(1) of the Labour Institutions (Mediation and Arbitration) Rules GN 64 of 2007 disputes concerning unfair termination must be referred to the CMA within 30 days from the date of termination. To further elaborate this, the ■ Court refers to Cap 1, The Laws on interpretation Act, at section 60 where it > explains the computation of time. The relevant provision provides as follows: 7/7 computation of time for the purpose of a written law... where a period of time is expressed to be reckoned from, or after, a special day, that day shall not be included in the period.' The present dispute was referred at the CMA on 30/06/2016, which was within 30 days required by the Law. Thus, it is my view that the ground of time limit lacks merit. In the result I find, the present application has no merit. The CMA correctly dismissed the application because the applicant failed to adduce 8 sufficient reasons for failure to attend at the CMA. Consequently, the application is dismissed. 9