st marys international school vs godfrey m rwekaza 2020 tzhcld 69 17 april 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 734 OF 2019 BETWEEN ST. MARY'S INTERNATIONAL SCHOOL................ APPLICANT VERSUS GODFREY M. RWEKAZA................................... RESPONDENT RULING Date of last order27/02/2020 Date of ruling 17/04/2020 ABOUD. J. The applicant filed this application seeking for revision of the ruling of the Commission for Mediation and Arbitration (herein CMA) which was decided on 23/08/2019 in Labour dispute No. CMA/DSM/ILA/R. 100/17/1202, Hon. Mwakisopole, I.E, Arbitrator. The application was made under the provision of section 91 (1) (a) (b), 94 (1) (b) (i) of the Employment and Labour Relations Act, No. 6 of 2004 (herein The Act), Rule 24 (1), 2 (a), (b), (c), (d), (e), (f), 3 (a), (b), (c) and (d) and Rule 28 (1) (a), (c) (d) and (e) of the Labour Court Rules, 2007 GN No. 106 of 2007 (here forth Labour Court Rules) and any enabling provision of the law. The applicant moved the court of the following orders:- (1) That this Honourable Court be pleased to call, examine and set aside the records and proceedings of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/DSM/ILA/R. 100/17/1202 between the parties herein. (2) Any other order the court may deem fit and equitable to grant. The facts giving rise to the present application can be briefly as follows; the respondent was employed by the applicant as an accountant. On 05/10/2017 he resigned from work on the reasons alleged to amount to constructive termination. Dissatisfied by his resignation he referred the dispute to CMA, the Labour dispute No. CMA/DSM/ILA/R/1100/17/1202. The matter was heard ex-parte and in favour of the respondent. Aggrieved by the ex-parte award the applicant applied before CMA for an order to set it aside. When the matter was scheduled for hearing at the CMA the applicant at hand did not appear, hence by an order dated 23/08/2019 the Arbitrator dismissed the application for want of prosecution. The relevant order dated 23/08/2019 was to the effect that:- "Hivyo basi maombi ya mleta maombi yamefutwa kwa kushindwa kuhudhuria". Being resentful with the above dismissal order the applicant filed the present application to set aside the dismissal order. The application was strongly resisted by the respondent who raised two points of preliminary objection which are the basis of this ruling. The two objections are as follows:- 1. That the application is incompetent as for failure to include/attach copy of the ruling and or order sought to be revised. 2. That the application is wrong before the Court as the impugned order of dismissal for want of prosecution ought to have been dealt with by the CMA by way of application for restoration. The applicant was represented by Mr. Emmanuel Augustino, Learned Counsel while the respondent appeared in person. During hearing the respondent withdrew the first point of objection and argued only on the second preliminary objection. As regards to the relevant objection the respondent submitted that, the matter is wrongly filed before this court because it was dismissed before CMA for want of prosecution. He said the applicant ought to have filed restoration application before CMA and not to come to this court by way of revision. The respondent avers that, even the applicant's affidavit does not disclose sufficient reasons why he failed to appear twice at the CMA when the matter was called for hearing. Responding to the preliminary objection Mr. Emmanuel Augustino submitted that the application is proper before the court, the reason being that, what has been asked in this court is very specific. He said, the applicant calls upon this court to call and examine the records and proceedings of the CMA vide Rule 28 (1) (c) (d) (e) of the Labour Court Rules. The Learned Counsel submitted further that, what prompted the applicant to come to this court is for the court to examine the irregularities of the decision of the CMA in view of satisfying itself whether CMA acted illegally or legally and, there is error material in that subject matter as far as three things were concerned. So the applicant is challenging the dismissal order of the Arbitrator, given the fact that he had raised the issue of jurisdiction in the application to set aside the ex-parte order. He therefore prayed for the court to determine whether it was legal for the Arbitrator to dismiss the complaint at the CMA for want prosecution. In rejoinder the Respondent reiterated his submission in chief and urged that, this is not a proper forum for the application at hand and, it is against the procedure and the law. He prayed for the application to be dismissed for want of merit. Having heard the rival submission by both parties the issue to be determined by this court is whether the application at hand is properly filed before the court. The applicant submitted that he is not seeking for an order of restoration, but for this court to specifically examine and calls the records and proceedings of the dismissal order on the ground that the Arbitrator did not determine the issue of jurisdiction raised by him. I have gone through the CMA proceedings and the record reveals clearly that, the issue of jurisdiction was conclusively determined by the Arbitrator by a decision dated 01/02/2019. It is an established principle of law that when a matter is dismissed in any court or body for non-appearance of a party, the remedy available to the aggrieved party is to file an application for restoration before the same court. In the present application the Arbitrator dismissed the application for non appearance under the provision of Rule 28 (2) Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, GN. No. 64 of 2007 which is to the effect that:- "An Arbitrator is entitled to dismiss a complaint if the referring party fails to attend an arbitration hearing". Therefore, the proper remedy for the applicant was to file restoration application under the provision of Rule 29 of GN. 64 of 2007 which provides that:- "29 (1) Subject to Rule 10, this Rule shall apply, to any of the following (a) Condonation, joinder, substitution, variation or setting aside an award; (b) Jurisdiction dispute; (c) Other applications in terms of these Rules. Thus, on the basis of the foregoing discussion as rightly submitted by the respondent the present application is wrongly filed before this court. Since the matter was dismissed for want of prosecution the applicant ought to have filed the application of restoration before CMA. In the result I find the preliminary objection raised by the respondent that the present application is wrongly filed before this court to have merit. The present application is hereby dismissed. It is so ordered. 17/04/2020