salmans transport co limited vs abas mohamed 2020 tzhc 3987 2 october 2020

IN THE HIGH COURT OF TANZANIA (LABOUR DIVISION) AT DODOMA LABOUR REVISION NO. 08 OF 2020 (ORIGINAL RF/CMA/DOM/104/2019) SALMANS TRANSPORT CO. LIMITED................APPLICANT VERSUS ABAS MOHAMED............................................. RESPONDENT 02nd OCTOBER 2020 L. MANSOOR, J JUDGEMENT The Applicant in this application for Revision, Salman’s Transport Co. Limited filed a Notice of Application for Revision under Rule 24 (1), Rule 24 (2) (a-f), Rule (3),(a), (b), (c ), (d) , Rule 28(1) (c) of the Labor Court Rules, 2007 (GN No. 106 of 2007) read together with section 91 1 (1) (b) and 91 (2) (b) of the Employment and Labor Relations Act, No. 6 of 2004. The Applicant prays for Revision of the proceedings and Award of the Commission for Mediation and Arbitration “CM A” No. CMA/DOM/104/2019, The dispute was heard and determined exparte. The Applicant also filed the chamber summons supported by the affidavit of Mustafa Issa Sighi, the authorized officer of the Applicant. The applicant deposes in his affidavit that the dispute which was filed by the respondent at CMA passed the stage of mediation and it was referred for arbitration, on 04 th November 2019 before the Arbitrator parties were ordered to file opening statements, and both parties complied. That as the applicant herein had raised the preliminary objections, the Arbitrator ruled that the hearing of the preliminary objections was set for hearing on 18th November 2019 at 14 .00 hours. On 18 November 2018, the proceedings resumed, but the applicant herein did 2 not enter appearance and so instead of hearing the preliminary objection the arbitrator proceeded to hear the respondent exparte in the absence of the applicant. On 11th December 2019, the Arbitrator gave an exparte Award. While the Applicant filed the Revision against the Award which was passed exparte, the respondent argues in his written submissions that the application is time barred as time for applying for Revision is Six Weeks from the date of the Award, and this is provided under Section 91 (1) of the Employment and Labor Relations Act, No. 6 of 2004. The respondent also objected the application for Revision as it was filed prematurely. I agree with the objections raised by the respondent, and as held in the case of Serengeti Security Services vs Hamad Khalid Baguma, Revision No. 160 of 2009, the remedy available is to set aside the exparte Award 3 before the CMA, hence the application herein was filed prematurely. I do not agree that the application for Revision was filed beyond the prescribed time of six weeks, as the time spent by the party in getting the copy of the judgement and decree is usually excluded. As held in the case of Ebrahim Haji Charitable Health Centre vs Mashaka Kawimba, Revision No. 264 of 2017, in which the Court had decided that in computing the six weeks provided in Section 91 (1) of the Employment and Labour Relations Act, the time spent by the Applicant in getting the copy of judgement and decree is excluded as provided under section 19 (1) of the Law of Limitation Act, Cap 89 R:E 2002. Also the case of Foreign Mission Board of the Southern Baptist Convention vs Alexander Panornaritls (1984) T.L.R 146 in which it was stated that “since the inordinate delay in furnishing a certified copy of proceedings of the High Court cannot be blamed on the respondent no cause of action existed 4 on his part to bar him from instituting and prosecuting his appeal.” The aggrieved party is enabled by the provisions of Section 87 (5) of the Employment and Labor Relations Act, (supra) to apply to set aside the exparte Award and if there are good grounds for failing to attend the hearing, the Commission may reverse the decision made. The applicant ought to have employed the provisions of Section 87 (5) of the Act to make an application before the Commissioner at the CMA to set aside the exparte Award, and the Commissioner i.e. the Arbitrator if he finds good grounds for reversing her/his decision, he would have set aside the exparte Award and if the application was refused, the aggrieved party may apply for Revision as this order of refusal to set aside the exparte Award is revisable under section 91 of the Act. 5 The Arbitrator is empowered under Part VIII Sub Part B which is Sections 88 through to Section 93 of the Act. section 88 (4) (b) of the Act requires the Arbitrator to deal with the substantial merits of the dispute with the minimum of legal formalities. The Arbitrator is given the powers to determine the claim exparte under Section 88 (8) (a) of the Employment and Labor Relations Act, Cap 366 as amended by the Written Laws (Miscellaneous Amendment) (No. 3) Act, 2010, as provided under Rule 28 of the Labor Institutions (Mediation and Arbitration Guidelines) Rules, and the aggrieved party is required to apply before the Commission to set aside the exparte Award. The application is therefore dismissed for the above stated reasons.