stephen mpalange vs evangelical lutheran church in tanzania eastern and coastal diocese 2021 tzhcld 208 6 july 2021

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 669 OF 2019 STEPHEN MPALANGE ....................................... APPLICANT VERSUS EVANGELICAL LUTHERAN CHURCH IN TANZANIA, EASTERN & COASTAL DIOCESE..... RESPONDENT RULING Date of last order: 23/06/2021 Date of Ruling: 06/07/2021 M. Mnyukwa, J This ruling is in respect of a preliminary objection raised by the IL respondent counsel when filing his counter affidavit challenging the application filed by the applicant STEPHEN MPALANGE who is seeking this court to grant an order that the Ruling of the Commission of Mediation and Arbitration at Dar es Salaam (Hon. Alfred Massay, Arbitrator) in Labour Dispute No CMA/DSM/ILA/380/12/320 dated 5th July 2019 on the ground that the application for Revision is barred by Rule 50 of the Labour Court Rules 2007; GN No 106 of 2007. The applicant was represented by advocate from G.S UKWONG'A Advocate while the respondent was represented by the learned counse; Isaack Zake. With leave of this court the preliminary objection was argued by way of written submissions. I thank both parties for adhering to the schedule and their submissions hence this ruling. i Submitting on the ground of the preliminary objection the respondent stated that Revision No. 669 of 2019 whereas the applicant is seeking to revise the ruling of the Commission for Mediation and Arbitration at Dar es salaam delivered by Hon. Alfred Massay in labour dispute No CMA/DSM/ILALA/380/12/320 dated 5th July 2019 is barred by Rule 50 GN No. 106 of 2007. The respondent counsel submitted that the current application is barred by Rule 50 of the Labour Court Rules, GN No. 106 of 2007 because the decision of Hon. Alfred Massay was an interlocutory order as it is not final and conclusive because it has the effect of awarding the parties to the dispute the right to be heard inter-parties on 24th day of July 2019 at 10.00 as the previous order of exparte hearing was tainted with irregularities. He added that the interlocutory order issued by Hon. Alfred Massay has the effect of giving parties to the case an opportunity to call their witnesses to determine the labour dispute at hand. He submitted further that this court and the Court of Appeal on various decisions held that interlocutory order cannot be revised or appealed by any party. He referred this court to the case of Junaco (T) LTD and another vs Harel Mallac Tanzania Limited, Civil Application No 473/16 of 2016, CAT at Dar es Salaam (unreported) and the case of Dilip Majithia vs Machumi J. Ngeze, Revision No 663 of 2018, at Dar es Salaam (unreported). The counsel for respondent submitted that the matter is still pending before the CMA following the revision application filed by the applicant. He added that this court is given power to revise an arbitration award by 2 virtue of section 91(1) of the Employment and Labour Relations Act, Cap 366 R.E 2019. However before this court there is no any arbitral award which was delivered by the commission for mediation and arbitration, therefore the purported revision application No. 669 of 2019 which is made under Rule 91(1) (b) & (2) (b) and 94(1) (b) (i) of the Employment and Labour Relations Act, Cap 366 R.E 2019 is prematurely filed before this court and this court is wrongly moved to revise an award which does not exist. This is because the law prohibit any party to make revision or appeal on interlocutory order, I pray before this court to struck out this application for being improper before the court. In reply thereto, the counsel for respondent contended that the objection is bad in law because it is vague and never gave the nature of barring effect of the section of law of the application for revision by the ■ applicant. He prayed the objection be ignored to pave way for the hearing of the main application. He further submitted that the decision of the Hon. Alfred Massay, Arbitrator of the commission for mediation and arbitration was final and not an interlocutory matter to call for the operation of Rule 50 of the Labour Court Rules, 2007. He emphasized that applicant's application for revision is seeking for the involvement of the court to revise the decision of the court on the grounds of uncertainty that can only be resorted by way of revision. He submitted that areas of uncertainty starts with the contents of the decision dated the 5th July 2017 at page 1 that the arbitrator referred to an award of 4th August 2014 that was and had never been there. He added 3 that in the year 2014 there was no application of the nature described by the commission for mediation and arbitration, therefore the burden of proof lies to the respondent. The applicant stated that they deny to be part of the case of the decision delivered by commission for mediation and arbitration dated 5th July 2017 which set aside the ex-parte Award dated 14th day of August 2014 and not otherwise. He also referred to page 3 second paragraph and page 4 which set aside the ex-parte award. He submitted that they have not been given the citation of the ex-parte award set aside. He concluded that the objection of the respondent is not to create an impediment to justice to the parties who seek justice with clean hands. I have carefully considered the submission from both sides, the issue to be determined is whether the application for revision has merit and if it is barred by Rule 50 of the Labour Court Rules, 2007. The present application is brought under section 91(l)(b)&94(l)(b)(i) of the Employment and Labour Relations Act, Cap 366 R.E 2019, Rule 24(l)24(2)(a)(b)(c)(d)(e)(f) and 24(3)(a)(b)(c)(d) and 28(l)(c)(d)(e)&(2) of the Labour Court Rules, 2007. The respondent's counsel submitted that the application is not properly made because there was no any award to be revised before this court which was made by the commission for mediation and arbitration. He stated that the court is vested with power to revise an arbitration award by virtue of section 91(1) of the Employment and Labour Relations Act, Cap 366 R.E 2019. In the applicant's written submission in opposition to the preliminary objection raised by the respondent, there was no any reply 4 concern with this issue. Upon going through the application, I find this application apart from the section argued by the respondent's counsel, the application is also brought under Rule 28(l)(c)(d)(e)&(2) of the Labour Court Rules, 2007. Therefore it is my considered opinion that this court is properly moved. On perusal of the record I find Hon. Alfred Massey delivered a Ruling dated 5th July 2019. In that Ruling at page 1 he referred the Arbitral award dated 4th August 2014 instead of 4th August 2016. It is my view that, the error committed Hon. Alfred Massey is a clerical mistakes which can be rectified and cured by the oxygen principle. The clerical or typographical error of the year of award, that is 2014 instead of 2016 resulted the applicant to allege that there was no application and affidavit in support of the application setting aside ex-parte award in the year 2014. It is my view that the clerical mistake or typographical error committed by the Hon. Arbitrator Alfred Massay did not I offend the parties their right to be heard when setting aside the ex-parte award. This is because in the perusal of CMA file, I find the respondent in this case filed an application which was supported by the affidavit of Elisa Abel Msuya to set aside exparte award. The application was filed on 23rd August 2016. The respondent by then who is an applicant before this court, filed a counter affidavit sworn by Stephen Mpalange on 13th September 2016. In paragraph 2 of the counter affidavit of Mr. Stephen Mpalange, he averred that: 5 "That I have been served with the application by the applicant seeking for the setting aside of the ex-parte award of this commission and I am opposed to the same.” Having gone through the record, there is no any other application to set aside ex-parte award. Therefore, the award which is referred to by the Hon. Alfred Massay is the award dated 14th August 2016 in which parties were afforded opportunity to be heard. The right to be heard has been proved in the first paragraph of the Ruling delivered by Hon. Alfred Massay dated 5th July 2019 in which states that 'Sb x* JI "The applicant filed the application in terms of rule 29 of the Labour Institutions (Mediation and Arbitration) Rules GN 64/2007, section 88(8) ELRA praying to set aside the ex-parte ■■■* f-U. award of this commission entered and delivered on 4 August 2014. Application was supported by the affidavit sworn by Elisa Abel Msuya. The respondent opposed by the application by filling counter affidavit.” As I have earlier stated, the date of the award intended to be referred by the Hon. Alfred Massay is 4th August 2016 and not 4th August t F 2014. The error is a slip of the pen which can be corrected in order to meet end of justice. By the way in the application at hand, I also note the clerical mistake or typographical error to have committed by both the applicant and the respondent. In the Notice of Preliminary Objection, the respondent stated that '"'the application for revision is barred by Rule 50 of the Labour Courts 6 Rules, 2007; GN No. 107 of 2001" instead of GN Nol06 of 2007. I consider it as clerical mistake or typographical error which can be cured by oxygen principle. This is because in his submission, on the first page he properly stated that this application for revision is barred by Rule 50 of the Labour Court Rules, 2007 GN No, 106 of 2007. Again on the part of the applicant in his written submission in opposition to the preliminary objection raised by the respondent there is a clerical mistake or typographical error too. Unfortunately there is no page number in the written submission of the applicant. Therefore i will refer the page number as they are ought to be. On page 2 of the applicant's submission it provides that: "The area of uncertainty starts with the contents of the decision of the CMA dated the 5th day of July. 2017." Again on page 3 of the same submission by the applicant state that: The CMA in the course of deciding, on the 5th day of July 2017 set aside the Ex-parte Award.... " In all of the above quotations by the applicant there are clerical mistakes or typographical errors, instead of referring to the award of the arbitrator dated 5th July 2019 he referred it as 5th July 2017. The same clerical mistake or typographical error committed by the Hon. Alfred Massey who referred the date as 4th August 2014 instead of 4th August 2016. If the court would have entertained clerical mistakes or typographical errors which can be corrected it is clear that the court might have also 7 considered the submissions of the applicant to be vague because he referred the Ruling dated 5th July 2017 instead of 5th July 2019. Again as I did to the other one, the error committed by the applicant is also cured by the oxygen principle because in the applicant's application the applicant correctly referred the decision of 5th July 2019. It was also contended by the applicant that the Ruling delivered by Hon. Alfred Massay did not refer citation of ex-parte award set aside. Considering the available record, it is my view that the applicant is aware with the award and therefore not prejudiced. This is because the award referred the parties to the dispute who were afforded an opportunity to be heard before the commission for mediation and arbitration. Therefore I find . W S this argument to have no legal stance. Now, coming to the preliminary objection raised by the respondent that the applicant's application for revision is barred by Rule 50 of the Labour Court Rules, GN No 106 of 2007. On this aspect, I would like to refer the said Rule for easy of reference. The said Rule states that: ” No appeal, review, or revision shall lie on interlocutory order <- or incidental decisions or orders, unless such decision has the effect of finally determining the dispute.” As it was submitted by the respondent counsel that there is a vast of decisions which barred a party from lodging an appeal or seeking revision on interlocutory order which does not dispose or conclude the dispute between the parties to the finality. It is my considered view that if the 8 interlocutory order issued by the CMA was free from clerical mistakes or typographical, the decision is non-appealable. Having satisfied myself of the clerical mistakes or typographical error so features in the Ruling of the commission of mediation and arbitration dated 5th July 2019 in the labour dispute with Ref. No CMA/DMS/ILALA/380/12/320, I find this application have no merit and consequently I hereby struck out. Case file to be remitted to commission for mediation and arbitration for correction of clerical mistakes or typographical error in the Ruling dated 5th July 2019 so as the matter to be heard on merit. It is so ordered. No order to costs /imT M. Mnyukwa JUDGE 06/07/2021 Judgement delivered in the presence of Mr. Stephen Mpalange, an applicant and Mr. Isaack Zake, Advocate of the respondent. M. Mnyijkwa JUDGE 06/07/2021 9