RICHARD MASYOLE LUNANGA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA LABOUR REVISION NO.19220 OF 2024 (Arising from award of Commission for Mediation and Arbitration in respect of Labour Dispute with REF No. CMA/SHY/110/2019 before Hon Alfred Massay, Arbitrator, dated 17th August, 2022) RICHARD MASYOLE LUNAGA ……………….…………...APPLICANT VERSUS GAKI INVESTMENT CO.LTD……………………………RESPONDENT JUDGMENT 2nd September & 6th December, 2024. MASSAM, J The applicant Richard Masyole Lunaga made this application to call upon the court to revise and set aside the Award in Labour Dispute. No. CMA/ SHY/110/2019, and determine the dispute in the manner it consider appropriate and grant any other order (s) the court deem just and equitable to grant to the applicant. This application was brought by chamber summons and notice of application, under the provision of section 91(1) (a) and (b) section 91(2) (a) (b) (c) and section 94 (1) (b), (i) of the Employment and Labour Relations Act Cap 366 R:E 2019 and Rule 24(1), 24(2) (a), (b), (c), (d), (e) & (f), rule 24(3) (a) (b), (c), (d) and rule 28 (1) (c), (d) and (e) of the 1|Page Labour Court Rules GN No. 106 of 2007 and supported by the applicant's affidavit and opposed with respondent’s counter affidavit to challenge the application. Briefly the facts heading to this revision are as follows that on 2nd March, 2018 respondent employed the applicant, Richard Masyole Luhaga as an accountant. His employment was later on 30th April, 2019 terminated. Unhappy with the termination of his employment, on 27th May 2019 applicant filed a labour dispute before the Commission for Mediation and Arbitration (CMA). The applicant was aggrieved by the decision and award of the commission for Mediation and Arbitration before Alfred Massay Arbitrator on 17th August, 2022 in CMA/SHY/110/2019 and he raised 5 grounds for revision as follows; 1. That, the arbitrator erred in law and in fact for holding that applicant was given a one-month notice prior to termination. 2. That, the arbitrator erred in law and in fact by considering hearsay of the respondent’s witness. 3. That, the arbitrator erred in law and in fact for failure to grant full repatriation cost to the applicant and his family to the place of recruitment by granting transport for cargo and bus fare only and excluding daily subsistence expenses. 2|Page 4. That, arbitrator erred and misdirected himself by concluding that there is no termination by the Employer despite sufficient evidence adduced during the arbitration hearing and the same incorporated in the closing arguments. 5. That, the arbitrator erred in law and in fact by regarding parts of the facts and evidence adduced by the applicant. In the hearing of this application , applicant appeared in person, unrepresented while the respondent was represented by Mr Paul Kaunda advocate and by consensus both parties agreed to argue this revision by the way of written submission and the court granted prayers and scheduled the file date as follows applicant submission 23/9/2024, reply on 8/10/2024 and rejoinder on 15/10/2024 and ruling on 1/11/2024, however in his reply the respondent raised P.O and prayed extension of time to serve the same to applicant and his prayers were granted, whereby this court waived the previous order and scheduled a new order that the applicant to file reply on 14/11/2024, rejoinder if any on 20/11/2024 and Ruling on 29/11/2024 and the court order was complied. Applicant in his submission started with the first issue, that the arbitrator erred in law and in fact for holding that he was given a one- month notice prior to termination. He referred Section 41(1)(b) (ii) (3) 3|Page and (5) of the Employment and Labour Relation Act Cap 366 R:E 2019 which provides that; if a contract of employment can be terminated on notice, the period of notice shall not be less than (b) After that- (ii) 28 days, if the employee is employed on monthly basis Subsection (3) of the Act provides; Notice of termination should be in writing stating- (i) The reasons for termination (ii) The date on which the notice is given Subsection (5) of the Act provides, ‘’ Instead of giving an employee notice of termination an employer may pay the employee the remuneration that the employee would have received if the employee had worked during the notice period’’. Apparently, applicant argued that from the provision of the law, it is clear that employer has an obligation to issue notice to employee before termination. However, he was not given notice prior to termination. Coming to the second issue that, the arbitrator erred in law and in fact by considering hearsay of the respondent’s witness. The applicant submitted that, the arbitrator erred at last paragraph of page 6 to consider hearsay of the respondent witness, who testified 4|Page that applicant ended employment by his own will without any document to prove, while the applicant submitted before the commission letters dated 8th April, 2019 and 11th April, 2019 and demand notes dated on 2nd May 2019, and all received and recognized be part of the testimony, however the arbitrator ignored it. Moreover, the applicant submitted that the arbitrator erred in fact for not providing reasons for not granting the house rent claimed which was not contested by the respondent from 16th September, 2019 the date he complied with their order to leave the company’s house he was living. The applicant and his family was entitled to the house rent for period waiting to be repatriated to his place of recruitment because when he was prosecuting the case at commission paid for the same. Regarding to the third issue that, the arbitrator erred in law and in fact for failure to grant full repatriation cost to the applicant and his family to the place of recruitment by granting transport for cargo and bus fare only and excluding daily subsistence expenses. It was submission of applicant that the arbitrator erred at page 11 to grant full repatriation cost to the applicant and his family to the place of recruitment by granting transport for cargo and bus fare only and excluding daily subsistence allowance. He referred Section 43(1) and (2) 5|Page of the Employment and Labour Relation Act Cap 366 R:E 2019 which provides that; Section 43 (1) Where an employee’s contract of employment is terminated at a place other than where the employee was recruited, the employer shall either; (c) pay the employee an allowance for transportation to the place of recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any, between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment. (2) An allowance prescribed under subsection (1) (c) shall be equal to at least a bus fare to the bus station nearest to the place of recruitment. Notably, the arbitrator failed to include and determine issues of subsistence allowance before it. Responding to 4th issue that, arbitrator erred and misdirected himself by concluding that there was no termination by the Employer despite sufficient evidence adduced during the arbitration hearing and the same incorporated in the closing arguments. The applicant argued that arbitrator erred in law and in fact for concluding that there is no termination effected by employer, and relied 6|Page only on notice despite of sufficient evidence adduced at arbitration stage during hearing and the same incorporated in closing argument submitted on 31st May 2022 and hence the arbitrator failed to comply with section 37(2) (a) and (b) of the ELRA which deals with unfair termination. Additionally, the applicant submitted that the arbitrator relied only on notice and disregard other documentary evidence adduced at the commission. The arbitrator has completely failed to interpret that the notice is a legal requirement and not everyone who does not represent a written notice has not been fired, but the employer has not implemented that requirement as per Section 41(3) of the Employment and Labour Relation Act Cap 366 R:E 2019 provides that; - Notice of termination shall be in writing, stating i. the reasons for termination; ii. the date on which the notice is given. He added that the one who should have given the notice is employer and it is not easy for the complainant to submit the copy if it was not given to him. He referred the case of Yaaqub Ismail Enzron vs Baraka Bawaziri, Labour revision No. 33 of 2018, at Dar es salaam where the court decided there is constructive termination effected by employer under Rule 7(1) of GN 42 of 2007. 7|Page Finally, he said that because there was un fair termination and he was not awarded all entitlement after such termination, hence he prayed the decision of Honourable Arbitrator be set aside, and the court be pleased to reconsider all entitlement in which the applicant is deserved after un fair termination. On the last issue, that the arbitrator erred in law and in fact by regarding parts of the facts and evidence adduced by the applicant, in arguing, the applicant submitted that the arbitrator erred by considering only two documents out of tendered document to reach its decision. He considered ID and Command letter to leave the house though the letter dated 15th September 2019 and 16th September 2019 while other exhibits were not considered. Finally, he prayed this court to set aside the award by the commission for Mediation and Arbitration and order all prayers as pleased by the applicant. On the other side, Mr Kaunda Advocate in his reply raised a point of law to wit; The trial tribunal and the Applicant erred in law by entertaining the two referral forms contrary to Rule 26 of the Labour Institution (Mediation and Arbitration Rules GN No 64 of 2007 8|Page It was submission of Mr Kaunda that this Honourable Court (Mkwizu, J) ordered this matter to start de novo and the Applicant herein referred two different labour disputes before the CMA on 28/5/2019 and the Applicant never bothered to invite the CMA to consolidate them or abandon either of them. Apparently, Mr Kaunda argued that, the Applicant’s labour dispute was firstly entertained by Arbitrator Doris Wandiba as per the records, and the Applicant referred two different labour disputes where the Arbitrator opted to arbitrate the Applicant’s CMA Form No 1 in which the Applicant only prayed to be paid unpaid salaries to the tune of Tshs 3,200,000/= covering salaries for September, 2018, November, 2018, January,2019 and February,2019. For the record, this matter proceeded exparte and the CMA ruled in favour of the Applicant. Mr Kaunda submitted that when the matter started afresh before Hon A. Massay, Arbitrator, he invited the court to draw its attention on the presence of two different labour disputes which were filed by the Applicant, and he reminded the tribunal that, the previous trial tribunal only entertained the merits of the CMA F1 as aforestated and the Applicant never invited the tribunal to consolidate both his disputes or abandon the other. He invited this honourable court to take judicial notice of the 9|Page Respondent’s Written submission which he filed on the 31st day of May,2022 before the CMA Shinyanga vouching the aforementioned legal concern. Apparently, Mr Kaunda stated that, at page 13 of the typed award, the Honourable Arbitrator A. Massay admit that, the Applicant referred two different referral forms but surprisingly he stated that, the two different referral forms were heard jointly and issues were framed to cover the two forms it was not reflected in proceedings. Remarkably, Mr. Kaunda argued that Applicant is aware that he filed two different labour dispute before the CMA, he never attempted to move the tribunal for either, the disputes to be consolidated and abandon either of them as it is stipulated under Rule 26 of the Labour Institution (Mediation and Arbitration) Rules GN No. 64 of 2007 which it states; ‘the Commission on its own accord or on application in accordance with Rule 29 may consolidate more than dispute so that the disputes may be dealt with in the same proceeding’. Moreover, Mr Kaunda argued that the act of the Honourable Arbitrator to earmark in the award that the hearing of the two referral forms and framing of issues were done jointly, does not in any way meet 10 | P a g e the threshold of Rule 26 (supra) let alone the two referral forms comprise two different causes of action. Hence, the previous trial tribunal (Arbitrator Wandiba) only entertained the referral form which the Applicant was claiming to paid Tshs 3,200,000/= as unpaid salaries for four months, which the respondent had not disputed and she had already settled the due sum as it can be glanced at paragraph 4 of the Respondent’s Counter affidavit. Mr. Kaunda added that if the applicant wanted the trial tribunal to determine his labour dispute on the grounds of unfair termination he could move the trial tribunal to struck off the other referral form which he filed and remain with other on the record or he could have prayed for consolidation of the both forms if at all they are compatible causes of action. He added that the purported consolidation of the Applicant’s two referral forms is nowhere to be seen in the entire proceedings and the same cannot be saved by appearing in the award itself at the eleventh hour. Finally, Mr. Kaunda Advocate said that on record there are two different labour dispute entertained in the same proceeding, hence prone to abuse in due course as this court observed in the case of Gaki Investment Company LTD Versus Mashaka Raphael and 2 Others 11 | P a g e (Labour Revision No. 05 of 2022) [2023] TZHC 21730 (6 October 2023) and he prayed this court to remit the proceedings to the trial tribunal for it to make necessary orders regarding the pendency of the two disputes. In his reply, the applicant argued that the trial tribunal was correct to entertain the two referral forms because the issues were framed and heard jointly to cover the two forms and did not contrary to Rule 26 of GN No. 64 of 2007. He referred at page 6 and 7 of proceedings where the issues were framed and agreed by the parties and issues framed covered the two forms as stated by the arbitrator and particular at page 13 of the award” As stated above there are two referral forms filed by complainant which were heard jointly and issues were framed to cover the two forms. In the other form he claimed’’ The applicant submitted during hearing by parties at page 15,16, and 17 of the record of proceedings shows that these two referral forms was discussed in forms of evidence tendered by the parties. Apparently, the applicant argued that Rule 26 of the labour Institution (Mediation and Arbitration) Rules GN No.64 of 2007 gives 12 | P a g e mandate to the commission on its own accord to consolidate more than one dispute be dealt with in the same proceeding. Moreover, the applicant argued that P.O must contain pure point of law and not facts which can be ascertained as it was held in the case of Mukisa Biscuits Manufacturing Company Ltd vs West End Distributors Ltd [1969] EA 296. Finally, he argued that P.O raised does not meet tests enunciated in the case above. In his rejoinder Mr Kaunda submitted that applicant does not dispute that he referred two different labour disputes by filing two different referral forms before CMA and nowhere in the record of proceedings the CMA made an order to consolidate the two different labour dispute pursuant to Rule 26 of the Labour Institution (Mediation and Arbitration) Rules ,2007. Additionally, Mr. Kaunda argued that if at all that requirement was complied, the title of labour dispute would have been consolidated labour dispute as to reflect and accommodate two different labour disputes which bore two different registration number. Short of that, it is as bad as riding two different horses at the same time. Hence prone to abuse of court process as it has been held iteratively in catena of authorities to wit; Dube Mshingisha and 2 Others vs Lupalagula Mashingisha 13 | P a g e Kabuta, Civil Revision No 5 of 2022 High Court of Tanzania at Shinyanga (Massam,J) (Tanzlii,14/7/2023), The Registered Trustees of Kanisa la Pentekoste Mbeya vs Lamson Sikazwe Civil Appeal No 210 of 2020 Court of Appeal of Tanzania at Mbeya (Tanzlii), Managing Director ABSA Bank (T) Ltd (Formerly known as Barclays Bank (T) Ltd vs Felician Muhandiki Civil Appeal No 37/01 of 2021 CAT (unreported), the latter emphasised that; "By keeping both Applications alive, the Applicant was indeed riding two horses; the practice abhorred by courts, and aside from being unprocedural, it was also an abuse of court process" Having heard the rival submission of both parties. I find prudent to raise one issue whether the application for revision before this court has merit. Before starting to urge if the application has a merit or not, It should be noted that Mr Kaunda raised P.O in his reply to the applicant’s written submission in chief to wit The trial tribunal and the Applicant erred in law by entertaining the two referral forms contrary to Rule 26 of the Labour Institution (Mediation and Arbitration) Rules GN No 64 of 2007. It is settled law that, once a preliminary objection is raised, it must be determined first before the substantive case is heard and determined. This is pertinent because the whole purpose of a preliminary objection is to make the court consider the first stage much earlier, save the time of 14 | P a g e the court and the parties by not going into the merits of the case because there is a point of law that would dispose of the matter summarily. See: the cases of Thabit Ramadhan Maziku and Kisuku Salum Kaptula vs. Amina Khamis Tyela and Mrajis wa Nyaraka Zanzibar, Civil Appeal No. 98 of 2011, The Bank of Tanzania Ltd v. Devram P. Valambhia, Civil Application No. 15 of 2002, Khaji Abubakar Athumani vs Daud Lyakugile t/a DC Aluminium and Mwanza City Council, Civil Appeal No. 86 of 2018 and Modest Joseph Temba vs. Bakari Selemani Simba and two others, Civil Revision No. 223/17 of 2019 (all unreported). Now, the P.O raised is based on rule 26 of the Labour Institution (Mediation and Arbitration) Rules, GN No. 64 of 2007 which reads that; - “The commission on its own accord or on application in accordance with rule 29 may consolidate more than one dispute so that the dispute may be dealt with in the same proceedings’’. I have scanned submission from both parties and going through the CMA proceedings. Indeed, there are two referral forms both dated on 27/05/2019 but nowhere in proceedings the CMA made an order to consolidate the two different labour disputes so that the dispute may be 15 | P a g e dealt with in the same proceeding as per Rule 26 of the Labour Institution (Mediation and Arbitration) Rules,2007. Mindful that, at page 15,16 and 17 of the record of proceedings shows that these two referral forms were discussed as well as in pages no 1,2 and 13 in the award, but applicant did not pray before commission to consolidate those dispute so that may be dealt with in the same proceedings. In premises I agree with Mr Kaunda that the trial tribunal arrested the mandatory requirement of rule 26 (supra) because the arbitrator ignored the same and keeping both dispute alive is unprocedural as it was held in the case of Managing Director ABSA Bank (T) Ltd (Formerly known as Barclays Bank (T) Ltd vs Felician Muhandiki Civil Appeal No 37/01 of 2021 CAT Dar es salaam (unreported) where the court emphasised that; "By keeping both Applications alive, the Applicant was indeed riding two horses; the practice abhorred by courts, and aside from being unprocedural, it was also an abuse of court process" Thus, I disagree with the applicant that the P.O raised based on the point of facts which can be ascertained by the court, rather it was pure point of law as it was held in the case of Mukisa Biscuits Case (supra) that ‘’Preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all 16 | P a g e the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’’ More on that, on 25th day of June 2021 Mkwizu J quashed and set aside proceedings in Labour Dispute No CMA/SHY/KHM/110/2019 and remitted back the file to the commission for mediation and arbitration to determine the condonation application first. However, the same two referral forms dated on 27/05/2019 were used to determine the matter while the award arising from one referral was quashed, but even after condonation there was no new referral form filed, still the arbitrator determined the matter through the previous referral form that was irregularities which are fatal in dispensing justice. From above analysis. I pronounce that preliminary objection has merit and upheld. In fine, I quash and set aside an award in Labour Dispute No. CMA/SHY/110/2019 dated on 17th August 2022. However, for the interest of justice, I hereby order the applicant to file a fresh labour dispute to CMA. This must be done with a new referral form and the same should be determined by a different mediator and since the applicant was granted condonation, therefore the new application shall not be bound with time 17 | P a g e limitation. The applicant is hereby given 30 days from date of delivery of this ruling, to file his fresh application It is so ordered DATED at SHINYANGA, this 6th December, 2024. R.B. Massam Judge 18 | P a g e