Ruling SBC 2 18487

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LABOUR REVISION NO. 18487 OF 2024 (Arising from the labour dispute No. CMA/MZ/NYAM/197/2023/89/2023 of CMA at Mwanza before Hon. Doris A. Wandiba) SBC TANZANIA LIMITED ………………………..……….....……………… APPLICANT VERSUS FRANK RASHID ………………………………....…...…..……………….. RESPONDENT RULING 29th November & 2nd December, 2024 CHUMA, J. The genesis of this matter is to the effect that the respondent was employed by the applicant SBC Tanzania Limited as a Quality Assurance Officer under an employment contract of an unspecified period. The contract was terminated after committing misconduct of gross negligence to the employer hereinafter referred to as the applicant. Following that termination, the applicant has preferred the present application seeking this Court to revise the record of proceedings and Arbitral awards in dispute No. CMA/MZ/NYAM/197/2023/89/2023, to satisfy itself as to the correctness, legality, and or propriety of the said award. To set aside 1 the Arbitral proceedings and their resultant award and or orders. And any other reliefs this court deems fit and just to grant. The Applicant’s grounds of contention are as follows; a) Whether or not the commission had jurisdiction to entertain the instant dispute b) Two is whether or not it was proper for the Arbitrator to grant reliefs conjunctively. In this matter, Mr. Abel learned counsel, represented the applicant, while Mr. Peter Makenya’s able services were enlisted by the respondent. Mr. Abel's advocate commenced his submission by citing the case of Jerome Kessy Vs. Ardhi University Civil Appeal No. 352 of 2021 on page 9 paragraph two where it was emphasized the need to exhaust available remedies within the institution before seeking for such remedy to CMA. He also referred this court to the applicant’s staff handbook exhibit S.11 at close 14 page 47 of that staff handbook which provides for an appeal procedure for an aggrieved employee by the disciplinary committee. The prescribed procedures are that once an employee is aggrieved by the outcome of the committee within 5 days has room to appeal to the general manager or the Chief executive officer. Apart from this book in the hearing 2 form S .9 the right of appeal was clearly stated to him which was signed by the respondent. Under CMA award page 14, the Chairperson of disciplinary committee SU3 admitted to having explained the right of appeal to the respondent. On page 16 the respondent admitted to having informed on the right of appeal. Hence the respondent was well aware of his right of appeal. He fortified his position by citing the case of Delight Aminiel Mushi Vs. Equity or Tanzania LTD(EFTA) Labour Revision No. 1 of 2022 page 17 first paragraph. Where the court held that: - “The aggrieved employee must exhaust the remedies provided internally before resorting to other dispute resolution mechanisms provided in the Act.” Another decision is that of TPC LTD Vs. Vedastus Wanjala Labour Revision Application No. 18 of 2023. The respondent counter affidavit stated that he failed to appeal internally for want of a decision to be appealed but this fact is strongly challenged as it was held in the cited case on page 16 that even if the employer had a duty to supply the employee with the said form, that cannot exonerate the employee to skip the procedure prescribed 3 by the law. That is due to the reason that the respondent was fully informed of his right to appeal. More so in this matter, the respondent was as well represented by Mr. Ezra hence he had assistance legally there at. Thus, the matter was filed to CMA prematurely rendering it incompetent attracts quashing the proceedings and award. This point was not raised at CMA but the law is clear that a point of jurisdiction can be raised at any time as it was held in the case of Tanzania Revenue Authority Vs. Tango Transport Company LTD Civil Appeal No 84 of 2009 on page 7. It was his humble submission that this matter was filed prematurely leading the CMA incompetent to try the same. As to the second legal issue, it was his submission that section 40 of the Employment and Labour Relation Act Cap 366 RE: 2019 provides reliefs including reinstatement or re-engagement, and the third one is compensation. In the case of National Microfinance Bank Vs. Leila Mringo & Two Others Civil Appeal No. 30 of 2018 on pages 23 and 25, it was held that the above-cited provision must be construed disjunctively. Therefore, in the case of award, the Arbitrator ought not to award the reliefs conjunctively see page 20 of the CMA award where two reliefs were issued 4 conjunctively that is the first and third one. He prayed this court to quash and set aside the CMA proceedings and award for the above-stated reasons. In response, Mr. Peter Makenya arguing for the first point on jurisdiction concern, stated the respondent counted the application via counter affidavit. The applicant never filed a reply to the counter affidavit within 7 days as per Rule 24(5) and (6) of the Labour Court Rules. And that, the respondent in counter affidavit raised issues and facts which remained uncontested to date. It is a cardinal law of pleadings that a fact that is not counted by another affidavit amounts to an admission. Under paragraph 6 of the counter affidavit, the respondent counted and raised an issue in respect of paragraph 4 of the applicant’s affidavit. Paragraph 7 of the counter affidavit counted paragraphs 5 and 6 of the applicant’s affidavit and raised some facts which never contested. Mr. Makenya went on to argue that the hearing form and appeal form were not issued to the respondent for him to take legal action such as an appeal despite being informed of his right of appeal. Therefore, the raised point of non-jurisdiction by the CMA lacks merit. The circumstances in the cited cases are distinguishable here because in those cases the issue of failure of the employer to issue those documents was not there. 5 On premature dispute is where the employer is on suspension before termination as it was held in the case of Irene Julius Kakubebe Vs. Fem Security Services Company Revision No. 178 of 2019 on pages 4, 6 and 9. More so in the case of Bayport Financial Services T Ltd Vs. Cresence Mwandele Civil Appeal No. 19 of 2017 on page 11. It was held that there is no law hindering the applicant from lodging the matter to CMA for the reason of failure to exhaust other remedies. The CMA had the power to determine the dispute hence the application is devoid of merit. On the second point which is on reliefs, Mr. Makenya admitted that the Arbitrator erred in awarding conjunctive reliefs as argued by Mr. Abel advocate for the applicant. However, this matter is in the revision stage not appeal. On revision this court had a wide range in its revisional powers under section 91 (2) and (4) of Cap 366 RE: 2019. Under Rule 28 of Labour Court Rules the court may call for the record and revise the same and issue orders as it thinks fit. Mr. Makenya prayed this court to step into the shoes of the CMA award and rectify the anomalies for the sake of justice. 6 In conclusion urged this revision be allowed but by rectifying the pointed anomalies. To fortify his submission, he invited this court to the case of CI Group Marketing Solution Vs. Shaban Semtawa & Another Revision No. 260 of 2019 on page 12. In his terse rejoinder, Mr. Abel argued that filing a reply to counter affidavit is not a mandatory requirement because the words used in the cited Rule 24(5) are coached by the words may which is not imperative as per section 53 of Cap 1 of the Interpretation of Laws Act. The assertation by Mr. Makenya that failure to file the same amounts to admission is misplaced. On failure to appeal for want of the non-issuance of the hearing form and appeal form, there is no requirement of the employer to serve the appeal form to the employee only filling it. Since the right of appeal was explained to the employee, he cannot claim on non-supply of the appeal person as a failure for him to comply with the appeal procedure. The cited case of Bayport (supra) on exhausting the available remedies, is distinguishable here because in the cited case there was no policy or regulation, unlike this case where there is a clear procedure for an appeal process. 7 On the second issue, the applicant’s counsel stated that Mr. Makenya admitted the anomalies pointed out in the CMA award. However, his prayer for this court to revise the award is out of place because is not his application, and no relief is claimed on his party. What this court can do is to quash and set aside the CMA proceedings and award. From the rival arguments of both parties for and against this application and my scrutiny on the record the issue that calls for determination is whether or not this application is tenable. On the first point, the applicant is challenging the issue of the CMA’s jurisdiction which however contested by Mr. Makenya for the respondent. According to him, the respondent failed to appeal internally because he was not issued with the hearing form and appeal form despite being informed of his right of appeal. Therefore, the raised point of non-jurisdiction by the CMA lacks merit. The submission of Mr. Makenya drives me to one crucial question whether failure to obtain a hearing and appeal form for appeal purposes confers jurisdiction to CMA to entertain the dispute? Going through the record as rightly submitted by Mr. Abel advocate for the applicant, the Applicants’ staff Hand Book exhibit S.11 close 14 Vii on 8 page 47 stipulates procedures of an appeal to an aggrieved employee by the decision of the disciplinary committee. The handbook provides for five working days to appeal against the committee’s decision from the date of being informed of such an outcome. The grievances have to be channelled to the General Manager or Chief Executive Officer within five days. The employer is under no obligation to serve the employee with the appeal form rather than only filling it contrary to what was submitted by Mr. Makenya. What was required was to inform the respondent of his right of appeal which was rightly adhered to as reflected in the hearing form exhibit SU 9. Even if the employer had a duty to avail the employee with the referred form yet still cannot do away with the internal procedural requirement. The foregoing implies the existence of a clearly established internal dispute resolution procedure for appeal purposes within SBC Tanzania Limited for an aggrieved employee. And that before resorting to CMA the aggrieved employee must first exhaust the remedies available internally as it was held in the case of Jerome Kessy (supra) where the Court of Appeal held that; 9 “…the decision by the appellant to refer his complaint right away to CMA without exhausting the remedies available under the respondents’ dispute resolution machinery was, for all purposes and intents, procedurally improper. For it is now the stance of this Court and therefore the law that, whereas in the case now under review, a given law provides for a specific forum to first deal with a given dispute, resort to such a forum is quite indispensable before one can have recourse to the judicial remedy.” From the above analysis, it is evident that since the respondent failed to exhaust the internal dispute resolution mechanism the application before the CMA was prematurely preferred rendering the CMA incompetent to adjudicate for want of jurisdiction. The cited case of Bayport (supra) on exhausting the available remedies, is distinguishable here because in the cited case there were no policies or regulations, unlike this case where there is a clear procedure for the appeal process as here in above pointed. I therefore decline to hold the assertion by Mr. Makenya for the respondent that the CMA had jurisdiction to entertain the dispute for want of justification and hence his submission on this point is out of context. This is because no court can confer jurisdiction upon itself or circumstance as that 10 submitted by Mr. Makenya namely non-issuance of the hearing form and appeal form. It is a cardinal principle of law that, any decision reached by any court without jurisdiction is a nullity and there is a plethora of authorities on this issue including the case of Fanuel Mantiri Ng'unda Vs. Herman Mantiri Ng'unda and 20 Others, Civil Appeal No. 8 of 1995 (unreported) the Court of Appeal observed thus; "The question of jurisdiction for any court is basic, it goes to the very root of the authority of the court to adjudicate upon cases of different nature ... The question of jurisdiction is so fundamental that courts must as a matter of practice on the face of it be certain and assured of their jurisdictional position at the commencement of the trial... It is risky and unsafe for the court to proceed with the trial of a case on the assumption that the court has jurisdiction to adjudicate upon the case. " In the other case of Jumanne Leonard Naqana @ Azori Leonard Nagana & another Vs. The Republic, Criminal Appeal No. 515 of 2019 Court of Appeal of Tanzania at Musoma (unreported) it was observed thus: “The fate that befalls the proceedings and a decision made without jurisdiction is a nullity. Even where a court 11 decides to exercise a jurisdiction which it does not possess, its decision amounts to nothing". A similar view was stated in the case of Tanzania Revenue Authority Vs. Tango Transport Company LTd Civil Appeal No. 84 of 2009 The Court of Appeal while referring to several cases including the case of Michael Leseni Kweka Vs. John Eliafe Civil Appeal No. 51 of 1997 stated that; “Jurisdiction is the bedrock on which the courts’ authority and competence to entertain and decide matters rests.” The Court of Appeal of Kenya in the case of Owners of Motor Vessel Lillian Vs. Caltex Oil Kenya Limited (1989) KLR the court inter-alia held through persuasively that; "Where the court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. " That said, the first point of contention is sustainable. I now pose to determine the second limb regarding the validity of the issued award which was awarded conjunctively. I will not dwell much on it as it is crystal clear as consented by both parties that the Arbitrator erred in awarding the first and third reliefs conjunctively instead of disjunctively. This 12 stance was held by The Court of Appeal in the case of National Microfinance Bank (supra) where the Court on page 25 stated that; “We are settled in our mind that reinstatement or re- engagement or compensation in subsection (1)(a), (c) of section 40 of the ELRA must be read disconjuctively. The or in the subsection is not conjunctive, it is disjunctive.” From the above observation, the prayer by Mr. Makenya for this court to step into the shoes of CMA and rectify the pointed anomaly is misplaced. The second point is as well succeeds. In the spirit of the above, I find merit in the instant application and therefore allowed. The CMA proceedings, awards, and orders are accordingly quashed and set aside. The respondent may wish to pursue his right through a proper forum as herein above highlighted. I make no order as to costs. DATED at MWANZA this 2nd day of December, 2024. W.M. CHUMA JUDGE 13 The ruling delivered in court virtually in attendance of Mr. Abel advocate for the applicant and Mr. Peter Makenya personal representative for the respondent this 2nd day of December, 2024. W.M. CHUMA JUDGE 14