TANZANIA PORTLAND CEMENT V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 22590 OF 2024 (Arising from a Ruling delivered on 16/8/2024 by Hon. Mbeyale, M.S, Arbitrator, in Labour Dispute No. CMA/DSM/KIN/168/2024 at Kinondoni) TANZANIA PORTLAND CEMENT CO. LTD…….……….. APPLICANT VERSUS ZEPHANIA MLELWA MALEMA AND 39 OTHERS....................... RESPONDENT JUDGMENT Date of Last Order: 07/11/2024 Date of Judgment: 11/12/2024 B.E.K. Mganga, J. Brief facts of this application are that, on 27th March 2024, Zephania Mlelwa Malema, John Kazimila, Patrick Rock, Wastara Uduya, Raphael Francis Moya, Abdala Masese, Said Minagu Mukundi, Geuza Alifani, Rashid Musa, Daniel Magaya, William Mathey, Thomas Usiri, Musa Shabani Makabu, Halfa Athumani, Goodluck Nkya, Rashid Ally, Said Salumu, Selemanin Salehe, Simon Maringo, Haifai Mkurukute, Kassim Said (Administrator of the Estate of the Late Said Mmwema), Febronia Lucas Magoso (Administratrix of the Estate of the Late Peter Shetera), Athumani Kunapa (Administrator of the Estate of the Late Athumani Kunapa), Eliza Daud Komba (Adminstratrix of the Estate of the Late Daud Komba), Mariam Said Makwanjila (Administratrix of the Estate of 1 Late Said Hemed Makwanjila), Patrick Pius (Administrator of the Estate of the Late Pius Nyimbani Umwenga), Ankunda Abel Muro (Administrator of the Estate of the Late Cornel Muro), Remfridy Aidan Julu (Administrator of the Estate of the Late Aidan Alfred Julu), Fatuma Yusuph (Administratrix of the Estate of the Late Ally Julius Zakazombe), Said Ahmed Katipwani (Administrator of the Estate of the Late Ahmed Nasoro katipwani), Ramadhani Issa Kionga (Administrator of the Estate of the LateIssa Hamza Kionga), Marko K. Lugabula (Administrator of the Estate of the Late Amos Kashine Lugabula), Mnema Mohamed Abeid (Administrator of the Estate of the Late Mohamed Abeid Haladi), Tatu Musa Yusuph (Administratrix of the Estate of the Late Simon Musa Mbajira), Godwin Martin Kalihose (Administrator of the Estate of the Late Martin Kalihose Mwanda), Jumanne Simon Ndahelewe (Administrator of the Estate of the Late Simon Ndahelewa), Stella Emmanuel Mkwama (Administratrix of the Estate of the Late Emmanuel Mkwama), Suzan Anthony Saliwamba (Administratrix of the Estate of the Late Kamisa Machai), Pili Khamis Mbwezeleni (Administratrix of the Estate of the Late Khamis Mbwezeleni) and Shauritanga Dismas Shauritanga (Adminsitrator of the Estate of Dismias Shauritanga), the herein 1st to 40th respendents respectively, filed an application for condonation before the Commision for Mediation and Arbitration henecforth CMA at Kinondoni in Labour 2 dispute No. CMA/DSM/KIN/168/2024 against the Tanzania Portland Cement Co. Ltd, the herein applicant. In support of the application for condonation, respondents filed the affidavit sworn by Zephania Mlelwa Malema. In the said affidavit, the deponent deponed inter-alia that, the herein respondents were employees of the Tanzania Portland Cement Co. Ltd, the herein applicant and that, their employment ended upon retirement. He also deponed that, upon retirement, respondents were supposed to be paid their retirement benefits according to Tanzania Portland Cement group endowment assurance scheme and according to the applicant’s staff Regulation approved on 27th August 1997. That, in 1999 respondents demanded to be paid according to the aforementioned endowment assuarance scheme and staff regulation but, applicant refused to heed to their demand on 23rd August 1999. That, following the said refusal, respondents filed Civil case No. 116 of 2001 before the High Court at Dar es Salaam District Registry against the applicant. He also deponed that, the said case was decided in favour of the respondents on 28th May 2015 by Hon. Shangwa,J (as he then was). He further deponed that, applicant was aggrieved with the decision of the High Court in Civil case No.116 of 2001 and after several attempts, she filed Civil Appeal No. 216 of 2021 before the Court of Appeal. He also deponed that, on 16th 3 October 2023, the Court of Appeal held that the High Court Dar es Salaam District Registry had no jurisdiction to hear and determine the matter. In the said affiadvit in support of the application for condonation, it was also deponed that, applicants, now the herein respondents, persistently knocked the doors of courts since 2001 and that, they did not sit on their rights. The deponent further deponed that, the respondent, the herein applicant, will not be prejudiced if the application for condonation will be granted because the applicants(the herein respondents) claims as indicated in trust deed entered on the 31st May 1989. In addition, it was deponed that, the applicants (the herein respondents) will suffer irreparable loss of their employment rights. It was also deponed that, when the herein respondents commenced proceedings in the High Court in the aforementioned Civil case, they were 106 persons but in October 2023 at the time the Court of Appeal delivered its judgment, only twenty were alive, as a result, they convened a meeting to ascertain the persons who are still interested to proceed with the case and administrators within the reach who were ready to proceed with the case to appoint the representative. He further deponed that, only forty persons turned out and appended their signatures to have their representative. 4 In opposing the application for condonation at CMA, applicant filed the counter affidavit of Evaline Mushi, her principal officer. In the said counter affidavit, the deponent deponed inter-alia that, Zephania Mlelwa Malema, has no legal mandate to depone the facts on behalf of 39 others and that, the minutes signed by the applicants(the herein respondents) cannot entitle Zephania Mlelwa Malema to depone the facts in the affidavit. That, applicants(the herein respondents) will not suffer because, upon retirement, they were paid their entitlements. The deponent deponed further that, applicants (the hrein respondents) have not accounted for each day of the delay from 16th October 2023 to 27th March 2024, no delligence shown and that applicants (the herein respondents) were negligent for referring the dispute in a wrong forum. On 16th August 2024, Hon. Mbeyale, M.S, arbitrator, having considered evidence of the parties in the affidavit in support of the application for condonation and the counter affidavit in oppossition, granted the application. Applicant was aggrieved with the ruling granting condonation to the respondents hence this application for revision. In support of the Notice of Application, applicant filed an affidavit sworn by Minge Michael Mhondo, her principal officer. In the said affidavit, applicant raised four grounds namely:- 5 1. That, the Honourable Arbitrator erred in law for failure to observe and hold that the respondents failed to account for each day of the delay for over 166 days of the delay in lodging their complaint before CMA. 2. That, the Honourable Arbitrator erred both in law and fact for condoning such inordinate delay without lega justification. 3. That, the Honourable Arbitrator erred both in law and facts by entertaining an application which was brought under the current laws while the dispute originated from the old laws. 4. That, the Honourable Arbitrator erred both in law for granting respondents’ condonation application based on extraneous facts which do not form part of the respondents’ pleadings. In opposing the application, respondents filed the notice of opposition and their joint counter affidavit. When the application was called on for hearing, Mr. Ndanu Emmanuel, advocate, entered appearance and argued for and on behalf of the applicant while Barnaba Luguwa, advocate, appeared and argued for and on behalf of the respondents. Arguing in support of the 1st, 2nd and 3rd grounds jointly, Mr. Emmanuel submitted that, in an application for condonation, applicant must account for each day of the delay and cited the case of Bora Industries Limited v. Mohamed Ally and 18 Others, Miscellaneous Application No. 46 of 2015, HC, (unreported) and Zainul Naushad Fazal (as the Administrator of the estate of the late Naushad Gulamabbas Fazal) v. Zulfikal Pyalla Shamj and Another, Civil 6 Application No. 582/04 of 2022, CAT (unreported) to support his submissions. He further submitted that, in the application for condonation, respondents did not account for the delay from 16th October 2023 when the Court of Appeal delivered the judgment in Civil Appeal No. 116 of 2021 between the parties wherein it was held that, the matter was labour dispute and ordered the same to be heard properly. He added that, respondents filed at CMA an application for condonation on 27th March 2024 that is about 166 days after the decision by the Court of Appeal without counting for each day of the delay. He also submitted that, in her ruling, the arbitrator held that, granting condonation will not prejudice the herein applicant. He cited this court’s decision in Bora's case (supra) to the position that, the issue whether, the person will be prejudice does not account for the delay. He further submitted that, Arbitrator granted the application for condonation on ground that, respondents were awaiting letters of administrators of estate of the deceased employees and that, in totality respondents explained their whereabouts after the decision by the Court of Appeal. He strong submitted that; it was not stated in the respondents’ affidavit that, they were waiting for letters of administrators and further did not explain their whereabouts hence 7 those were extraneous matters that were considered by the arbitrator in granting coronation. He further referred to Fazal's case (supra), and submit that, the Court of Appeal discouraged blanketing accounting of delay and concluded that, it was not proper for the arbitrator to grant the application for condonation. Arguing in support of the 4th ground, counsel for the applicant submitted that, the dispute arose prior coming into force the current labour laws. He briefly submitted that, in her ruling, the arbitrator did not determine or consider that issue. Responding to the issue raised by the court, namely, whether administrators or administratrix can file the dispute on behalf of the deceased, he submitted that, they cannot because, Rule 5 of GN. No. 64 of 2007 provides that, it is only a party, or any other person entitled under the Labour Institutions Act (Cap. 300 R.E 2019) who can sign and filed documents at CMA. He also submitted that, the application for condonation was signed by Zephania Malema. He added that, rule 5(2) and (3) of GN. No. 64 of 2007(supra) provides that, where there are many applicants, there must be a list of applicants who authorized the person who signed on their behalf. He went on that, the said GN. 64 of 2007(supra), is silent as to whether, the administrator or administratrix can sign on behalf of the deceased employee. He further submitted that, 8 Cap. 300(supra) does not provide that administrators or administratrix or legal representatives can sign the dispute on behalf of the deceased employee. He also submitted that, legal representative cannot sign because he /she is not party to the dispute and cannot adduce evidence in relation to employment dispute because, the legal representative was not an employee. Resisting the 1st, 2nd and 4th grounds of the application on behalf of the respondents, Mr. Luguwa submitted that, respondents filed the application for condotion after the decision of the Court of Appeal in Civil No. 2016 of 2021 that was delivered on 16th October 2023. He further submitted that, the said appeal was against 106 respondents and the same was filed by the herein applicant. He added that, the decision by the Court of Appeal was against 106 but in truth, only 20 respondents were alive at that time as it is reflected in paragraph 12 of the affidavit in support of the application for condonation. Mr. Luguwa further submitted that, it is not true that the arbitrator acted on extraneous matter because, in paragraph 12 of the affidavit in support of the application for condonation, respondents stated that, they were awaiting appointment of administrators of the deceased employees. He added that, it was necessary to appoint administrators and that, respondents held a meeting on 18th January 2024 to appoint 9 representatives and thereafter managed to file an application for condonation at CMA in March 2023. He went on that, in the said meeting, respondents appointed Zephania Mlelwa Malema as their leader. He further submitted that; the arbitrator considered this fact, but applicant has not considered that, only 20 employees were still alive. He also submitted that, the arbitrator found that, the delay was reasonable time. He further submitted that; respondents accounted for the delay. Counsel further submitted that; each case must be decided based on its own facts as the arbitrator did. He added that, the arbitrator exercised her discretion judiciously because, she considered circumstances of the application. Resisting the 3rd ground, Mr. Luguwa submitted that, there was confusion on whether, the claim by the respondents were on breach of contract or it was a labour dispute triable by the Industrial Court of Tanzania or the District Conciliation Board. He added that, the High Court held that, it was supposed to be heard in the normal Court but, the Court of Appeal held that, it was a labour dispute and that, it shall be filed in Labour Institutions. He further submitted that, the saving provision under section 103 of the Employment and Labour Relation Act (Cap. 366 R.E. 2019) was applicable only to the disputes that were pending at that period. He also submitted that, at the time of filing 10 condonation, the said saving period had already expired. He added that, respondents properly filed the application for condonation using the new law. In his submissions, Mr. Luguwa conceded that, he did not do research as to whether, the old law had a section for extension of time or not. Mr. Luguwa concluded that, respondents delayed because they were in court without jurisdiction hence the delay was technical. Responding to the issue raised by the Court, counsel for the respondents submitted that, it is true that, the law is silent as to whether, the administrator or administratrix can file a labour dispute on behalf of the deceased employee. He submitted that, the dispute between the applicant and the respondents emanates from trust deed that was signed between the applicant on one hand and National Insurance Corporation, and four trustees on the other hand. He added that, the said trustees signed on behalf of the employees (the respondents inclusive) as beneficiaries. He further submitted that; the trust itself contemplated that some people would have right after death of the member. He added that, this application must be determined based on its peculiar facts and that, claims by the respondents are not based on termination rather, on trust deed as stated in paragraph 1 of the affidavit in support of the application for condonation. In his submissions, counsel for the respondents conceded that, administrators 11 or administratrix of estate cannot file the dispute relating to termination or any other breach of contract. He was quick to submit that, in the application at hand, administrators and administratrix had a right to sign because, the trust itself contemplated that employees who dies, administrators/administratrix and heirs should benefit. With those submissions Mr. Luguwa prayed that the application be dismissed for want of merit. In rejoinder, Mr. Emmanuel submitted that, respondents have relied on paragraph 12 of the affidavit in support of the application to show that they accounted for each day of the delay but, in the said paragraph, they did not account for each day of the delay. He also submitted that, minutes (annuxture F) to the affidavit in support of condonation shows that, respondent held a meeting on 18th January 2024. He added that, even if assuming that, from 16th October 2023 when the Court of Appeal delivered its judgment to 1st January 2024, respondents we regrouping, then, respondents failed to account for the delay from 18th January 2024 to 27th March 2024 when they filed an application for condonation. I have carefully read the affidavit in support of the application and the counter affidavit oppossition of the application for condonation that are evidence of the paties in the CMA record and rival submissions made in this application and find that, it is undisputed that, on 16th October 12 2023, the Court of Appeal, in Civil Appeal No. 216 of 2021 that was filed by the herein applicant held that, the High Court, Dar es Salaam District Registry had no jurisdiction over the matter. I should point out that, the said judgment was delivered in the presence of Mr. Stephen Fusi, learned advocate for the respondents also holding brief of Rosan Mbwambo for the applicant as it is shown in the said judgment. In other words, respondents became aware of the said judgment on 16th October 2023, the date it was delivered by the Court of Appeal. I have examine the referal form (CMA F1) and application for condonation (CMA F2) that were filed by the respondents on 27th March 2024 and find that, respondents indicated that the dispute related to breach of contract and that, the same arose on 23rd August 1999. At CMA and before this Court, it was submitted on behalf of the applicant that, respondents were supposed to file the dispute in accordance with the law that was in force at the time the dispute arose and that they were not supposed to use the current law that was not in force. On the other hand, it was submitted on behalf of the respondents that, the application for condonation was properly filed in accoradnce with the current law. I have read the CMA ruling that granted condonation to the respondents and find that, apart from making reference to paragraph 9 13 of the third schedule to the Employment and Labour Relations Act(Cap. 366 R.E. 2019), the the arbitrator did not make findings whether, it was proper for the respondents to file their dispute under the new law or not. As pointed out herein above, it is undisputed by the parties that, the dispute arose before coming into force the new law. The said paragraoh 9 to the Third Schedule to Cap. 366 R.E. 2019(supra) that was referred to by the arbitrator in the ruling granting condonation to the respondents provides that, “9. Any dispute contemplated in the repealed laws arising before the commencement of this Act shall be dealt with as if the repealed laws had not been repealed.” (Emphasis is mine) I should point out albeit briefly that, respondents filed the application for consonation under Cap. 366 R.E. 2019 (supra) that came in force in 2007 while the dispute arose in 1999 prior to enactment and coming into force Cap. 366 R.E. 2019(supra). The said paragraph 9 is made under section 103 of Cap. 366 R.E. 2019(supra). The said section 103 of cap. 366 R.E. 2019(supra) reads: - “103. -(1) The laws specified in the Second Schedule are repealed subject to the savings and transitional provisions set out in the Third Schedule. (2) Each of the laws specified in the Second Schedule are amended to the extent specified in that Schedule. 14 (3) The Third Schedule governs the transition from the administration of the laws repealed under paragraph (1) to the administration of the matters in this Act.” It was submitted by Mr. Luguwa that, the saving provision was applicable only to the disputes that were pending at that period and that, the said saving period had already expired. It was also submitted by Mr. Luguwa that, respondents properly filed the application for condonation using the new law. With due respect to counsel for the respondents. Paragraph 9 of the Third Schedule to Cap. 366 R.E. 2019(supra) is loud and clear and did not put time limitation in the line of arguments advanced by Mr. Luguwa. In my view, the criterion in application of the repealed law was that the dispute must have arisen prior to coming into force of the new law. In short, all disputes that arose prior to coming into force Cap. 366 R.E. 2019(supra) were supposed to be dealt using the repealed laws as if the said repealed law has not been repealed. That is what paragraph 9 of the Third Schedule to Cap. 366 R.E. 2019(supra) quoted herein provides. In my view, after the judgment by the Court of Appeal in Civil Appeal No. 216 of 2021 that the High Court, Dar es Salaam District Registry had no jurisdiction because the endowment scheme was within the employment relationship between the parties and that, claim of failure honour the said scheme was a trade dispute in terms of section of the Industrial 15 Court Act [Cap. 60 R.E. 2002], respondents were supposed to file their dispute based on Cap. 60 R.E. 2002(supra) that was in force at the time the dispute arose and not Cap. 366 R.E. 2019(supra) that was not yet enacted. It was upon counsel for the respondent to make a thorough research on what provision was applicable in extension of time for the party who found himsel or herself out of time. In my view, the Notice of application or chamber summons was supposed to be in align to those provisions and not as it was done in the application at hand in which, respondents cited provisions of the laws that were not in force at the time the dispute arose. I have read Cap. 366 R.E. 2019(supra) and the Labour Institutions (Mediation amd Arbitration)Rules, GN. No. 64 of 2007 that the respondents cited in filing the application for condonation and find that, the same have no retrospective operation hence they were inapplicable. It is a settled position in our jurisdiction that, Acts of Parliament cannot be construed to have retrospective opeartion unless it is expressly stated and it is on procedure. See for example the case of Raymond Costa vs Mantrac Tanzania Ltd (Civil Application 42 of 2018) [2019] TZCA 63 (6 April 2019), DPP vs Iddi Hassan Chumu & Another (Criminal Appeal 430 of 2019) [2021] TZCA 3540 (23 December 2021) and Gasper Peter vs Mtwara Urban Water Supply Authority (mtuwasa) (Civil Appeal No. 35 of 2017) [2019] TZCA 28 16 (28 February 2019). In peter’s case (supra) the Court of Appeal held held inter-alia that:- “The general rule is that unless there is a clear indication either from the subject matter or from the working of the Parliament, that Act should not be given a retrospective construction. One of the rules of construction that a court uses to ascertain the intention behind the legislation is that if the legislation affects substantive rights it will not be construed to have retrospective operation unless a clear intention to that effect is menifasted, whereas if it affects procedure only, prima facie it operates retrospectively unless there is good reason to the contrary.” For the foregoing, I find that the 3rd ground is merited and allow it. I therefore hold that, proceedings that were conducted at CMA were a nullity and the ruling arising therefrom granting respondents condonation cannot stand because the application was improperly filed at CMA. Having held that the application for condonation was improperly filed under the law that was not in force at the time the dispute arose and that CMA proceedings were a nullity, I find it unnecessary to discuss the remaining issues that were raised by the applicant. I also find it unnecessary to discuss the issue raised by the court namely, whether adminsitrators and administratrix can file the dispute on behalf of the deceased employee because that issue can only be decided when the 17 dispute, the subject of revision, was properly filed at CMA unlike in the application at hand where CMA proceedings are a nullity. Dated at Dar es Salaam on this 11th December 2024 B. E. K. Mganga JUDGE Judgment delivered on this 11th December 2024 in Chambers in the Chali Juma, Advocate for the Applicant and Barnaba Luguwa, Advocate for the Respondents. B. E. K. Mganga JUDGE 18