20130802 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM ! i ~;~'REVISION,~-~ 136 OF 2012 : .. ~..,.., .. _r:-;11 "'1-. ·' . t,. ~··. .; . ' --. A•l .~.. TANZANIA AGRICULTURAL WORKERS UNION •••••••••••••••••••••••••••••••••••••••••m ■■ ••••••••••• APPLICANTS VERSUS GADIEL NYINDO ........................... RESPONDENT RULING 8/7/2013 & 2/8/2013 S. A. N.Wambura, J. This is an application; for revision of the award of Commission for . '! w~ medication and . Arbitration (CMA) which ·A delivered on 29/10/2010. The application -~ supported by an affidavit of one Kabwenge Ndebile Kabwenge. It was opposed by the respondent who fil/ed a counter I affidavit and a notice of opposition on the ground that; the application is ' , incompetent as it seeks to revise the exparte award dated 29/10/2010 C-l, ! j instead of"decision dated 2/08/2011; in which, the application to set aside . the exparte award was refused by the Commission. At the hearing of the preliminary objection Mr. Kasambala represented the applicant and Mr. Nzowa, Advocate appeared for the ! i respondent.· ! i Mr. Nzowa submitted that, the award of CMA was issued on 29/10/2010. Thereafter the applicant filed an application to set aside the - exparte award but CM,l\ ;refused to grant such prayer. The present ' . ' application is seekiri'~· to revise .al)_. Eil~parte award issued on 21/08/2011. . '·· ~,.. t,,aJr { . This was not proper, as the applicants ·ought to have filed an application to -.;-. review the order refusing to set aside the same. That it is the duty of Commission for Mediation and Arbitration (CMA) to hear the main application and not this Court. Moreover the application has been filed out ' • ! ! of time. He thus prayed that the same be dismissed. In this reply, Mr. Kasambala submitted that he was in agreement that on 29/10/2011 CMA issued an exparte award in which they prayed to set aside. That they thus filed this application as the award had many defects ! I that had to be revised. He try:gs believed that they had properly placed the application before this court. He further submitted that this application was in time 1 as time began to run when they received a copy of the said I '"' 1 decision. ' . ! i After having gone through the parties arguments and the evidence on record, I am of the view that there are two issues to be decided by this fourt; the first issue is whether this a~plication is properly filed before the iourt and the second is whether the application is time barred. ,, . ~J I 2 I I. . I am in agreement with Mr. Nzowa who submitted that the present application.has been wrongly brought before this Court. This is because the I I record shows that the exparte award was procured on 29/10/2010. It is a legal requirement ~tQ.9tffefilere an arbitration award has been . ... . ., . --. ,-~ ., ;, . procured exparte, th.~'-·proper action to be taken by the party who wants to be heard is first to apply to the same qody to have it set aside, in this matter it is CMA. This procedure is provided for under section 88 (8) of the ' ! Employment and Labour Relation, Act No. 6/200~ it reads:- "Where a party fails to attend to any arbitration proceedings convened by the arbitration or fails to comply with any directions made by the presiding arbitrator /nterms of Rule 28 of the Meqiation and Arbitrat~on Rules/ the matter may be heard exparte where the party who failed to attend is the respondent or dismissed where the party who failed to attend is the complainant as the case may be/ and the defending party shall not be permitted to attend arbitration proceedings unless t(Je. "" arbitrator on sufficient cause reverse the decision. ,, ' . The applicant thus had properly filed the application at ,--- CMA to set aside the same. ~ow since CMA refused to set aside the exparte awardi the proper cau~e was to seek a review on the refusal by CMA to set aside the expate award and not to seek to review the exparte award. r would thus expect this application to bear reasons of setting aside the exparte award and not grounds for review of the exparte award. 3 ! i As for the issue of time limitation· as it is in record that on l 21/06/2012 , there was an! order I of the . court that the applicant was at liberty to refile his application within 14 days from the date of the said order: The new applk:ation was<fiJ~;,.pn -,.J-<.. ' 27/07/2012 which means it was ~ ••• • . ; -·~. ~-'- '¥,o delayed for about 22 "days from·the time granted by the court. So it is· true that the application has been filed out of time without leave of the court to do so. I I In the circumstances, I accordingly uphold the preliminary objections raised and from strike out the application from the court register. It is so ruled. S.A.~ra JUDGE ' . I i ! 2/8/2013 , l 4 I !