20140718 TZHC Dar es Salaam2

.' IN THE HIGH COURT OF TANZANIA HIGH COURT LABOUR DIVISION AT DAR ES SALAAM MISCELLANEOUS LABOUR APPLICATION NO. 246 OF 2013 . . BETWEEN AA, r ~ W.: ¢ TAMICO ............·........................................ 11.,.~. --•·•· APPLICANT ~ . VERSUS ~.tt ('/~~ CAPITAL DEVELO~MENT AUTHORIT':"~~~ .......... RESPONDENT 1.2/05/201.4 & 16/07/2014 .· RULi~::;. {n- · \\......,.b "C:/ Mipawa, J. ( \) ~)J The Respondent •tapital . Development Authority filed a ~- preliminary objection~ 'ainst the Applicant TAMICO, Tanzania Mines Energy Con~r~1on and Allied Workers Union who has filed an application 11q~a~t;!(Jtice of application made under Section 64 (4) 24 ( 1) (2) re) of the Emplo~~nd Labour Relations Act Np. 6 of 2004 and Rule for t ~ n g orders:- of the Labour Court Rules GN 106 of 2007 praying (a) "<Respondents be compelled to stop the implementation of the new salary scale. (b) Respondent be compelled to obey the agreement entered between the parties and 1 (c) Any reliefs that the Honourable Court may deem fit to grant. At the hearing of the preliminary objection the applicant did not appeal and the court decided to hear the preliminary objection ex- parte. Arguing in favour of the preliminary objection M/S Mercy Kyamba Advocate for the Respondent submitte~~~o limbs of the preliminary objection is that at first/~plt(ation of the applicant is filed out of time and second th\(pplica~TAMICO has no locus standi. However the responden~v:iif~e~ .the first limb of · ~bjection th~t ~e aJ)plication was file~~.it~~ime ·after realizing that 1t was filed in time. On the secon~J~h~ learned counsel argued that the applicant TAMICO ha ~o f~l standi to· file an application on behalf of the employees t)· . cause\she submitted:- ........ Black's law dictiona .:if-l'edition defines locus stand as a right to bring at.11s;:tion or to be heard in a given forum. TAMICO does nij{'11 .~e that right because Section 66 (b) of the ILA Act No. 74Qt '21 '04 a trade union does not have an 1 automatl~rs of an employee...... . . She. argued ~er that there must be a court order or a collective a g ~ t between the employer and the trade union for the trade ~ c t on behalf of the employees.. Since there is no such~urt ¢°Jder or collective· agreement interparties TAMICO applica~q:Jnot act or sue on behalf of the employees. According to GN 42 of 2007 code of good practice regulations 51 (1) TAMICO did 1. Record: Submissions of the Respondent viva voce In Miscellaneous Application No. 240 of 2013 2 e.. 6 ' ( not do what is required in order to get the mandate. The employees . (some of them) were not satisfied with the salary scheme have filed an application or concern to the employer. Now since TAMICO has no locus standi to bring this action the present application must be dismissed. • A· <>.i The le~rned counsel concluded that t h e ~re\'f;esent is not automatic it must be formalized by. recognit~ agreement as stated in Regulation 51 (1). There is no such agf'eerrterit or court order to grant the right of being recognized as a,~ining unit on behalf of the employees of .CDA Respondent.o~ion should be dismissed. In her additional submif wti1ch this court required her to do for the purpose of clari!ri~~n-4 polishing what he had earlier submitted viva voce ~ve voice] and which this court did not precisely comprehen~~at submission the respondent counsel unearthed the limie, of time which she did not submit against It in her earlier s ~ e f . He told the court that the present application is time b ~ ~ e argued that the application emanates from Miscellane<'i~plication No. 73 of 2013 between the same parties whic~uck.out on 17th September, 2013 due to the defective affidavit as per t~e jurat of attestation of both parties were not properly attested. As regard to the applicant being a recognized trade union as provided for under Part VI of the Employment and 3 I> Labour Relations Act No. 6 of 2004 the learned counsel for the respondent submitted more or less the same with her submissions viva voce before this court on the 12/05/2014. That Section 66 (b) of the Employment. and Labour Relations defines what is a recognized trade union, she said that the section defines that:- ~ · ~ .......a recognized trade union is defined ats ltrade 'rt, -/I, · recognized by a collective agreement or i, ~Rl..C! 'ti an order made by the Labour Court under t e prov!$,Jfns of Section 67 of the Act ...... the section is clear, it has provided two scenarios:- ~ (1) There has to be a collectiVJ~#'a~r;ffe_~nt. · (2) There has to be a cou~· , -.er macje in terms of Section ~~, 7 /RA, A collective agreeme 'S. . ·cordif!g to Section 4 of EL~~tf.!. . en agreement concluded '3X,_a rt~gis.ttpJed, trade union and em~1oyers ,$.56tiation on any ' labour m r. er. · · In conclusion the re~nden had submitted .that as between the appiicant and the respo~there is no court ord:er that has ruled in favour of the applicaNfihg them the status. Further there is no collective agreemOat has been entered between the applicant • and respon~vi~ing for such relationship. Th~ _applicant has assumed ar,a~ty. which they don't have and to put 1t in legal terms the <WPlican~o not have the locus standi. The respondent further argue~o maintain an action before the c<iurt of law a litigant (applicant) must assert interference with or deprivation of or threat of interfere~ce with or deprivation of, a right or interest which the law take cognizance of. And according to the Employment and Labour . 4 I> { . · Relations Act No. 6 · of 2004. Thisdnterest of right would have. been . accon;fed to them by virtue of ~ectionl 6~- (1) - (7) of the Employment , . . I an<;f Labour Relations Act No. 6 of 2004. The legal term of locus .., ' I ' I s_taf"lds was stated,· by his Lordship Samatta, JK tas ~e then wa_s] in Mapinduzi· [199~J TLR 203, 208 that:- . :' ~.:·; ...In this country, 10Jus standi 7s go· r.. ed by common law, In order to maintain proceedings successful, a · · plaintiff or an applicant must show no~li! that the court has power to determine the issue, but o ~ entitled to bring the matter before the court CQ. .: · do not have power to· determine issues of generai intem~t.-..· They c~n only accord protection of two interes~. .. 'hit,/fr are regarded as being 'entitled to legal recognipbn ""'· ,ef,'will thus not make · any determination of an.vii Issa) that is a¢ademic, hypothetical prematur~eao!~e'eause a coutt of/aw is a court of justice and ~- t academy o( law, to maiqtain an action ·befqre it a litig: 'fl_t m-;-;n assert interference I with or deprivation of or threat 'ffrff'lffrerence with or deprivation of ·a right or interest~-/ch the law take recogniz~nce since ,i ... court :will_ prote 'JliY enfor~eab/e interest, nebulo~s or shadowy mteres ~Sb...not suffice for the purpose of sumg or I. : 1 2 maki~ an a ~ · - · · · . , ,, I have duly Gered the submissions of th~ respondent bcith viva v~ce a,i , wn , :en submission. / I will only deal With the limitation of time a(flte~ ed by the respondent in his written submission limi . io~ of ,~e is one of the limbs of the respon'dent's preliminary objectio, .·. ·' hav~' decided to first ~eal with the preliminary objection as regard ·to the limitation of ti~e because of· the importance of . ' .. ·. ' 1· • ' ' j .' . ' 2. Record: Lujuna ·shubl Balonzl Senior V. Registered Trustees of Chama cha Maplnduzi (1996) nR 203, 208 '~:~, as quoted from the Respondents written submission at page 4 -5 . . I . 5 .... - preliminary objections in adjudication of cases as clearly states that:- ........ The aim of a preliminary objection is to save the time of the court and the parties by not going into th~ merits of the application because there is a point of law that will dispose· the matter summarily........ 2 [see Bank of Tanzania Ltd. V. Derran P. Valambia, Civil Application No. 15 of 2002 (CAT). :~- , I) Now as rightly pointed out by the lea~d c ldrsel for · the respondent this present application crop1e~f<Qm--., the earlier Application No. 73 of 2013 which conce~ same parties, that th formed application was struck out by t.~~~urt on 17 September, 2013 due to defective affidavit as t t l ~ t of:. attestation of both parties were not properly stated: ~ e application was struck out on 17th September 2013, ~ rtf>Phcant quickly re-opened the application in this court wit~:111~ applicant a·ttaching an order of the court which allowed. to re-file a fresh application [if it did allow the a~plicant] ~~ court had gr~nt~d an automatic leave for the applicant ~~~the present apphcat,on at whatever date. There is not~Vcourt filed by the applica~t to show that leave to re-file h~.· ~tion out of time was granted by the court as the case may t;eunis court cannot be shouldered to go and search for the ~ or,gers in the archives or in the shelves of the court, to see if there wYan order of the court granting the applicant to file his 3. Ovil Application No. ts of 2002 Court of Appeal of Tanzania 6 i. application once again [re-file] out of time. In the absence of no such proof this court cannot guess or speculate that there was -such an order given to the applicant to re-file his application out of time lest the law could be turned an ass and scare crow of the law the • court cannot even rely or peg on the submissionsft:,of toe parties . #t without satisfying itself that indeed there exist~~u~h J~rder which . lz~ V granted leave for the applicant to re-file his applicat100 out of time. In the event and on the foregone .~sent application has been filed out of time and without COf~~n. The application is [therefore] dismi~sed. ,-~~- , /' ~ ~i {CS. M!., a ,.._wJ •~ fA.fV,e• , ~ .• »\\ ol 1 11111 ◄+ ... ~ (" { ..: ,. 1..,0 c.,_; •. c~ • ~HBGE :: · · · ~6/07/2014 ; .~4 ;-/.' Appearance:- .. ~~-· ":h.._~ . "'&,.,/'-4ho ot :':... ·:'-ly~-- V/ 1, Applicant: Ab~ ::~.... 2. R e s p o ~ Kyamba, Advocate Present Court: R~as been read over to the party who is present as show~ th~ppearance above. · ,. ,... \/~t· w •; . _ V ,l~~Y: co.in 01_ ~ ; : ~ { ~ c, 1 "'c . ., . . . ~ ~ ....:~·._..,._ ~ I.S. Mi a a • • JUDGE 16/07/2014 7 IN THE HIGH COURT OF TANZA~IA HIGH COURT LABOUR DIVISION AT DAR ES SALAAM REVISION NO. 415 OF 2013 BETWEEN ./\ . ,<,~:. . ~ft LUCAS MTAKI ANDREW........................... ~PLICANT . VERSUS .. ' KENYA KAZI SECURITY (T) LTD .......... ~.. ~ ...... RESPONDENT ft '"-\~~- {ORIGINAL/CMA/DSM/KIN/1.1fi!>s11.o/50} 09/07/2014&18/07/2014 . l ~ 0 . DGM Mil!clwa, J. @: J .. against Kenya Kazi S~c'~ Lucas Mtaki the applican~·rein has filed the present revision as (D Limited the Respondent and his erstwhile employer. I vplication has been 'filed by a notice of application suppo~'Y an· affidavit of Lucas ~~aki Andrew. The reliefs sougAJ - ~ otice of application are as follows:- 1. ]lJ vurable Court be pleased to call for the records f/Jf, ,.eeedings and decision of the Commission for e.!IJ tion and Arbitration held at Dar · es> Salaam .·•. ··f-··dated tfh February, 2012 but delivered on 2d'1 ·. -~ .,/ebruary, 2012 at Dar es Salaam in a case CMA/DSM/KIN/1045/10/50 and revise the said proceedlngs° set aside the said award and make orders in the following terms. ·· (a) The ex-parte Judgment whicfJ was pending for delivery before . the 1 Revision No. 415 of 2013 HCLD Dar es Salaam I ' ' application by the respondent to set aside ex-parte order be delivered. . . (b) The ex-parte order which was set aside be restored. (c) · .let) The applicant in his application· appeared to ~ejJtll~er~Gm in spite of the fact that he had a representative who j~ufij/ii up on the hearing date of 05/06/2014, but the applicant was present. The respondent who is represented by an adv~ho according to the record goes by the name of M/S Jacq~~~,~ The learned advocate was present on 0~/04/2014 as well a~~)pplicant wheri the matter was set for hearing on 13/04/~g;e'°;;aring did not take place on the said date where the af'iCan' was present in person and the . . ~.~,, ,,;'.i • respondent was represented DV::th:'.1P1 K1welu Learned Counsel and the case was fixed for heari~~~n 05/06/2014 where only the applicant appeared and th~ re,ij'~~ neither his advocate did not ;ippear. • This court orderer' ~~er to proceed ex-parte by way of written submission.~ . ~~J . In hi. ,, ::~ submission in support of the revision the applicant sub~ed tH;.: ~he revision filed is largely based on the legality and propri~~fthe-.. proceedings and ruling delivered on 20 th February, 2012, the decision-·is dated 8th February 2012. 3 He submitted that:- ........ th_e point is whether it is proper for the court or commission for Mediation and Arbitration (CMA) to set 2 Order of the Court on 05/06/2014 In Revision No. 415/2013 Ibid 3 Trade Dispute No. CMA/DSM/KIN/1045/10/50 2 I , aside ex-parte proceedings (testimonies) before delivery of the pending ex-parte judgment. The case at the Commission for Mediation and Arbitration No. CMA/DSM/KIN/1045/10/50 was heard ex-parte on Jd" August, 2011 and final submission to that effect were made on 1(!'1 September, 2011 and the case was set for judgment on notice........ 4 · However according to the applicant's sub~s4tp;1.•particular ex-parte judgment, has never been delivere~1tte. Instead the Learned Arbitrator [Tibenda Esq.] allowed tbe appli~tion to set aside ex-:parte decision [or order?] t:dering the pending ,, .;~ ' judgment. He concludes that:- ~- ·~1~~ · .· .......... There is no such prfJGe{lv>Jn law. Ex-parte judgment was supposed 'lo iJ&, delivered first and thereafter an applicalrtJJ,ftto~t:li'side that decision can follow. As the CMA "cJme uPf:vith a procedure unknown to law the said pro efifliJ}lt and its decision (uamuzi mdogo) were nui ana void therefore deserve to be quashed and set~ for being a nullity. ..... ! . The respondent\~'0t make any written submission because the order of ex-pflaring by way of written submission Was had on 05/06/2Q~~Rtjre the applicant was required ...to file his written submissionf~t0?/2014 which he did file onOB/O7/2O14 and the ment_ion of Ge case was on . 09/07/2014. It was when the resp~advocate appeared before the court and submitted that ·when the case come for hearing on 05/06/2014 he was not present due to family problem. 6 However since the court had already made 4 Applicant's written submission at page 1 5 Ibid page 1 6 Op. cit note 1 proceedings 3 ,\. ' ', \ ' t ·\ . an order for ex-parte hearing by way of written submissjon and the said hearing was completed by the applicant filing his' written submission on the ex-parte hearing the task of this court on 09/07/2014 when the case had come for mention was to fix a judgment date. The respondent arguments that hek~~- s n_ §>t present , when the case w~s called for hearing becaus~;~e fernily p_roblem PA'1 4f' \ At are by and large passed by events because the gtli aa¥ of July was for the case to be fix for a judgment dat~~er the applicant had :1t,i. .1;.),,:, i't,61'~ "~.a. .. submitted his hearing by written su . s?ion·~ on 08/07/2014 as ~;.: ordered by the court. 7 It would be diffl,cul :er the court to reverse to the hearing of the respondent's no~earance on the material date and set aside its own order t~c~x-parte while the hearing was already in the court record. l~~-•/rnsel had to wait for the ex-parte ,, . judgment jlnd follow th~edure relating to setting aside of ex- parte judgments or _ru~~~I--'found that the present revision is more or less the sa~e . l ~ , t had happened in the Commission for Mediation and . r: i~lon in CMA/DSM/KIN/1045/10/50 where the the applicant [then complainant in CMA] had successful!_; . ": red an order from the commission to proceed with the fte~ngjx~parte or in the absence of the respondent employer who waMe respondent in the CMA. 8 The learned arbitrator order 7 Op. cit note 2 8 6 Op. cit note 3 CMA/DSM/KIN/1045 /10/50 CMA ordered the matter to proceed ex-parte under Rule 28 (1) (b) of Government Notice No. 67 of 2007 Labour Institutions [Mediation and Arbitration Guidelines] 4 was as follows [granting ·the applicants prayer to proceed ex-parte]:- ........ Kuendana na llpande wa mlalamikiwa kama muamuzi (sic) amekuwa na mwenendo wa kutotokea bi/a taarifa yoyote na hivyo shauri .hili linasikilizwa upande mmoja kawa muongozo wa kanuni ya 28 (1) (6) A Tangazo la Serikali Na. 67/2007 ushahidi umetolewa . final submission ita/etwa tarehe 16/09/2011. ..... ♦ The learned arbitrator proceeded as it * e \id with the . hearing of .the applicant submission viva vi.Jee. cf'n'"d, ex-patte that ., was on 30/08/20111. ••· , Now surprisingly o\~3/11/2011 the learned finalization of th_e matter ex-parte by ,~ arbitrator changed the sequence insteat~f proceeding with the w~Ja judg~ent ex-parte. He 1 received an application from ttfefji· ~spondent employer to set aside the ex-parte judgn{nt o~ng expected to be issued by the learned arbitrator. ,uould be noted _that the application. was to set aside the ex-pte ruling not already procured but which is "expected to be pr;ocur~he near future'. The commission said the following in Kif'~liich reflect the above s~ement:- Tume.~~~JJli}iko katika ngazi ya uamuzi katika hatua y~to'ajp1aamuzi. Uamuzi bado haujatolewa ila ·1eo ~~.~ maombi ya malalamikiwa ya kuateng~a t~aJlf'v~a?~egemewa kutolev:a w~ upande mmo;a. 5V kusikil!zwa uapnde mmo;a...... . 0 -~f~ately the learned arbitrator who was in all strength expecting to set aside a ruling which did not exist proce~ded with the hearing of setting aside that "expected ruling" in the absence of the 9 Ibid CMA proceedings at page 11 10 Ibid page 16 5 p applicant ·employe-e the proceedings of the commission read. that "maombi ya k'!_tengua shauri kusikilizwa upande mmoj;i' ~ut the learned arbitrator had also said in his order that he was hearing , r application to set aside a ruling which was expected to be issued ex- . parte. 11 The said ruling was deliver by the comm,:Si'\'.n ,0~/02/2012 where the . . commlssion "set aside"(?) the pro~dings t!Parte and I think the expected ex-parte ruling because of th~d cause of the applicant employer the commission stated t~:- ......... Kwa mae/ezo hayo ml\an,rja. 1., ·y_il\v 1; ,l~,~~huo Tume inakubaliana na mleta maombi ku~~Tfkwwa na sababu ya msingi, ya kushindwa kufika~lfatif<a;~esi yake shauri linarudishwa na kusiki/izwaA•na~Tflthe kwa kuhusisha A 1- 12 fjf "\\ panue zo1.e........ l?!J ~;~ilJ . Now :having duly consi~~ed tlie submission of the applicant in ex-abandunt .. cautela [w,ith f( :~~ caution or extreme caution]. It is my considered opint~~~.at the learned arbitrator granted the applicant· employee,.N.!®~)ceed. ex-pa rte as against his employer 6 respondent who h0aulted appearance at no apparent reason and since the l~rfiitrator proceeded with hearing the applicant .employee f~?:toce and receiv.'.ng exhibits and at the end of the day rem~ed wit!,i]he task of composing the ruling ex-parte it was not corre~ij~ifsorbing another application of setting aside the ex-parte hearing from the employer without first delivering ttie ex-parte judgment cropping from the ex-parte hearing of the applicant. For 11 Ibid page 17 [application to set aside ex-parte hearing) . 12 Ibid CMA_ award page 9 in uamuzi mdogo kutengua shauri kusiklllzwa upande mmoja '6 the learned arbitrator to receive another application from the employer respondent geared at setting aside the ex-parte hearing proceedings and proceed with the· hearing of the said application before he had issued the ruling resulting from the ex-parte proceedings granted. to the applicant, the learne~~bitrii,ltor was by and large abdicating· his n$~ ~ ~ as a commissioner/ arbitrator to first deliver~ th~~x-parte ruling and then proceed to entertain. the en}~r's application to set aside the ex-parte ruling and procledings. The arbitrator was giving up.fi~~esponsibility of writing I' first and foremost the ex-parte~mlirigl!JJ;te was abdicating that duty]. I ~-- entirely and respectfully ag(e wi~ the applicant that there is no ~ "<!t\l~.1" .such . procedure in law as ,eone by the learned arbitrator· the ex-parte ~ judgment was suppos~ be delivered first and thereafter an application to set .asi~~1clecision could follow and not otherwise:- Failur~ ~ommission t~ deliver the ex-parte ru!ing afterf~t!'~~li/;rd the app/Jcant ex-parte and remamed w1r:J:t~eliv-ting the ruling and embarked to hear another ~li!/~11¢1 from the adverse party to set aside the ex- flla.~rproceeding and the expected ruling ex-parte "to . b'1Jlivered in the future" was and indeed constituted a ' - .cc;ioJossal procedural flaw and vent to t?e roo~ of the trial ~o to speak. It matters not whether ,t was ,1n advent or not the learned arbitrator was duty bound to dispose of the ex-parte ruling by pronouncing it before dealing · with that ''another application to set aside the proceedings ex-parte and it would be ruling'~ 1~. 13 Opinion of this court 7 i.· ' Now since the commission had dumped itself into the quagmire of colossal procedural flaw it follows that the "ex-parte ruling and award' delivered on 8th February, 2012 is as well as there was no th such ex-pa rte deci~}on. The proceedings of the commission after 30 November, 2011 when the learned arbitrator ha~ h,~~f t~e..,applicant ex-parte and re~ained with the sole task o~~eri~fan ex-parte ruling are hereby declared a nullity and voia. r~ commission is directed to do the following:- Y~ 1. To compose and deliver the ex-parte Jtifgm~which the applicant had Initially se~ured a hearing ex-parte j(J fils'is,~ur. 0 2. The commission after deliver.J·igrJt~f-~arte ' ",\. ruling or award would then proceed with the h~a11in l<J.f a) application to set aside the ex- parte ruling award by h fing lMf;:;arties to the dispute. 3. If upon hearing the partil'f~hdommission will decide the set aside the ex-parte ruling awa1J(~hen the hearing of the dispute interparties shall be before another~)b{~tor of competent Jurisdiction. 4. If the co;pm1~Jrdecide not to set aside the ex-par/:e ruling/award the proced&e f;fJ revision to this court on the Casus Belli [ cause of ~... ~11 . ~ r..r;-·;~~ .. discorttfht] Wfuld follow for an aggrieved party. In tiG i nt therefore and. on the foregone this revIs1on succ~~~/the extent showed ·supra. The proceedings and the award ~uzi mdogo wa kutengua shauri kusikilizwa upande mmoja are declared a nullity and void in the circumstances due to the procedural flaw committed by the commission, it is correct to say that there was ~o ex-parte ruling award which this court could- have 8 otherwise not lightly interfered to quash and set -if asid~ if it were a genuine and legally recognized by the law. Since it is difficult for court to revise an ex-parte award, unless and until some requirements . had been followed by the court of first instance. Order accordingly. r.S~~t~, JUDGE . 18/07/20 Court: This judgment 'been·. re~d over and explained to the PJWaranct above. ., 9 . .I.S~~1:: JUDGE 18/07/2014 ~' _..' ~frights explained. I.}~t JUDGE 18/07/2014 9