TANZANIA PORTLAND CEMENT CO

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 22590 OF 2024 TANZANIA PORTLAND CEMENT CO. LTD………………………...APPLICANT VERSUS ZEPHANIA MLELWA MALEMA AND 39 OTHERS……..………....RESPONDENT RULING Date of last Order: 24/10/2024. Date of Ruling: 25/11/2024. B.E.K.Mganga, J. 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 Late Said Hemed Makwanjila), Patrick Pius (Administrator of the Estate of the Late Pius 1 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 dispute No. CMA/DSM/KIN/168/2024 against the Tanzania Portland 2 Cement Co. Ltd, the herein applicant. The arbitrator granted condonation as a result, applicant filed this application. Respondents filed the notice of opposition opposing this application. Respondents also filed the notice of preliminary objections. On 14th November 2024, I delivered a ruling overruling the preliminary obejctions that respondents raised. Having overruled the preliminary objections, I scheduled the application for hearing on merit. When the application was called on for hearing, opposing this application, respondents filed the counter affidavit sworn by and the notice of opposition. In addition, applicants filed the notice of preliminary objection that, The application for revision is untenable and contravenes the provisions of section 88(10) and (11) read together with section 91(1)(a) and (b) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019. The application for revision is untenable as the impugned order of the Commission for Mediation and Arbitration has no effect of determining the dispute between the parties. On 4th November 2024 having heard submissions of the parties, I overruled both preliminary objections ordered the application to be heard on merit. I also directed the parties that, on the date of hearing, they should address the court whether, an application for condonation or a labour 3 dispute can be filed by the administrator or admistratrix on behalf of the deceased employee. When the application was called on for hearing, Mr. Barnaba Luguwa, learned advocate, submitted that I should recuse from handling this application. The reason advanced by Mr. Luguwa on behalf of the respondents is that, respondents have written a letter praying that I should recuse. Counsel submitted that, in the said letter, respondents states that, the matter has taken too long in courts and that, I raised an issue relating to persons who have died, which, according to their opinion, the said issue may prolong hearing of the application until they die. Mr. Luguwa submitted that, respondents were 106 but now, only 20 are alive. When probed as to when this application was filed in court, counsel submitted that, it was on 10th September 2024 and that, respondents were served on 11th September 2024. He also submitted that, the application was thereafter scheduled for mention for the first time on 25th September 2024. He added that, respondents filed their counter affidavit and notice of preliminary objection on 1st October 2024. He went on that, hearing of the preliminary objection was on 24th October 2024 and the ruling on the preliminary objection was delivered on 4th November 2024, as a result, the application was scheduled for hearing and the court raised the issue of competence of administrators 4 and administratrix to file the dispute relating to employment of the deceased employees. In his submissions, Mr. Luguwa conceded that, it is two months and two days from the date the application was filed in court. Counsel for the respondents strongly submitted that, based the letter by the respondents, the latter feels that justice will not be done on their side. With those submissions, Mr. Luguwa prayed that I should recuse from hearing this application. On the other hand, Mr. Ndanu Emmanuel, learned counsel for the applicant submitted that, on 12th November 2024 respondents served him with the letter praying that I should recuse from handling this application. He added that, in the said letter, respondents states that they feel that justice will not be done on their side if the matter is determined by myslef. Mr. Emmanuel submitted that, the issue of recusal of the judge or a judicial officer is sensitive and that, in their letter, respondents did not advance reasons as to why they fell that justice will not be done to them. Counsel added that, the total number of persons who filed the application for condonation at CMA that is the subject of this application is 40 but the letter which seeking recuasl of the judge mentions 17 persons and only 15 out of the said 17 signed the said letter. He went on that, the said letter does not show whether thos e who did not sign the said letter also wants the judge to recuse. Mr. 5 Emmanuel submitted further that, since recusal of a judicail officer is sensitive and the application does not include all respondents, the prayer for recusal should be dismissed for want of merit. He also submitted that, if the application for recusal will be granted, it will lead to chaos because, litigants will choose a judicial officer they want and judiciary will be paralysed. In rejoinder submissions, Mr. Luguwa counsel for the respondents submitted that, the mere fat that the letter was not signed by all respondents and that the position of those who did not sign is not known cannot be a justification for a judge not to recuse. He added that, a total number of 15 respondents is not a small number because, revision is against 40 respondents but the counter affidavit in opposition of the application was signed by only 34 persons that are traceable. He added that, recusal is an issue that a judicial officer should consider the weight of the reasons advanced and make a decision. I have carefully considered submissions advanced on behalf of the parties as whether I should recuse or not. I should, at this juncture, point out that, grounds for recusal of a judicial officer in our country are provided for under Rule 9 of GN. 1001 of 2020 the Code of Conduct and Ethics for Judicial Officers, G.N. No. 1001 of 2020. The said Rule 9 of GN. 1001 of 2020(supra) provides:- 6 “9.-(1) A judicial officer shall disqualify himself in any case in which that judicial officer: (a) believes he will be unable to adjudicate impartially; (b) believes that a reasonable, fair minded and informed person, would have a reasonable suspicion of conflict between a judicial officer’s personal interest or that of a judicial officer’s immediate family and his judicial functions; (c) has a personal bias or prejudice concerning a party or personal knowledge or facts; (d) served as a lawyer in a matter in controversy or a lawyer with whom he previously practised law served during such association as a lawyer concerning the matter or the judicial officer or such lawyer has been a material witness in the matter; (2) Disqualification is not appropriate if: (a) the matter giving rise to the perception of a possibility of conflict is trifling or would not support a plausible argument in favour of disqualification; or (b) no other judicial officer can deal with the case or because of urgent circumstances, failure to act could lead to a miscarriage of justice; (c) upon disclosure of the ground(s) of intended recusal by the judicial officer, the parties agree that the judicial officer may participate in the proceedings. The consent by the parties or their representatives shall be recorded and shall form part of the record of proceedings.” (Emphasis is mine). I have read the letter written signed by not all respondents praying that I should recuse from handling this application. I have carefully considered the grounds advanced in the said letter and 7 submissions by Mr. Luguwa on their behalf and find that, creteria provided for under Rule 9(1)(a) of GN. No. 1001 of 2020 (supra ) were not met. It is clear from the said letter and submissions by Mr. Luguwa that what is in mind of the respondents and their counsel is perception that the application may take long period until some of the respondents also dies. I say, it is perception which in my view, is also a misconception. I am of that view because, there is no evidence proving or suggesting that death of fellows of the herein respondents was caused by prolonged litigation in court. Be as it may, there is no proof that, my recusal will mark the end of death of any othe respondents. In other words, there is no proof that, if I recuse, the judge who will take over this application will have power to prevent death of any of the respondents before conclusion of this application. By the way, there is no proof that, I will not die or the judge who will takeover will not die before conclusion of this application. The least I can say is that, I have been called to recuse based on idealism, utopia, imagination or assumption and not based on plausible argument. Utopia has not been and shall be a ground for a judicail officer to disqualify himself or herself from determining the matter before him or her. In fact, the bolded words in Rule 9(2)(a) of GN. 1001 of 2020(supra) speaks loudly that 8 there must be plausible reasons advanced by the party who seeks a judicial officer to recuse. In addition to the foregoing provision, there is litany of case laws as to conditions to be considered for a judicial officer to recuse and that, a judicial officer should not recuse from hearing a case based on flimsy reasons. See the case of Laurean G. Rugaimukamu v. Inspector General of Police & Another, Civil Appeal No. 13 of 1999, CAT(unreported), Registered Trustees of Social Action Trust Fund & Another vs Messrs Happy Sausages Limited & Others (Civil Appeal 70 of 2002) [2003] TZCA 26 (29 July 2003) and Issack Mwamasika & Others vs CRDB Bank Limited (Civil Revision No. 6 of 2016) [2016] TZCA 546 (28 September 2016). In Mwamasika’s case (supra), the Court of Appeal quoted the holding in the case of Okritie International Investment Management Ltd. & 4 others v. Mr. George Urumov [2014] EWCA Civ. 1315 that:- " It is always tempting for a judge against whom criticisms are made to say that he would prefer not to hear further proceedings in which the critic is involved. It is tempting to take that course because the judge will know that the critic is likely to go away with a sense of grievance if the decision goes against him. Rightly or wrongly, a litigant who does not have confidence in the judge who hears his case will feel that, if he loses, he has in some way been discriminated against. But it is important for a judge 9 to resist the temptation to recurse himself simply because it would be more comfortable to do so.” In Mwamasika’s case (supra), the Court of Appeal further quoted the holding in the case of Uhuru Highway Development Ltd Central Bank of Kenya & 2 Others, C.A. (K) Civil Appeal No. 36 of 1996, reported in the Kenyan Appeal Reports Vol. 3 p. 211 -219 that:- “ For our party, we dare say that most litigants would much prefer that they be allowed to shop around for the judges that would hear their cases. That however, is a luxury which is not yet available under our law to litigants and these applicants cannot have it.” In Mwamasika’s case (supra), the Court of Appeal concluded that:- “What we have gathered from the authorities cited herein above seems to direct that judges are required to resist the temptation to disqualify themselves for flimsy or imaginary fears... What is more important is that the objection for a judge to disqualify himself/herself must come from a party/litigant in that particular case. We strongly advise that, Judges and Magistrates should refrain themselves from acting on mere text messages from anonymous authors who are not parties in a case conducted by them. As we have already established herein above, for a judge or magistrate to disqualify himself/herself it does not depend upon the stage where a case has reached, but that, the objection must come from a party in that particular case. The principles laid down in the case of Lauren Rugaimukamu (supra) applies all along since a case is set for hearing until when it is adjourned for composing a judgment. In addition to those principles, we also find that if a judge has personal knowledge of disputed facts it may also take as one of the circumstances where a judge can recurse himself/herself…Before penning off, we note that recusal and 10 disqualification of judges is a sensitive subject, since it draws into question the fitness of a judge to carry out the fundamental role of his or her position… the fair and impartial resolution of judicial proceedings. So, the decision to file a motion seeking disqualification should be made only after careful consideration.” (Emphasis is mine). It is clear from the above quoted holding by the Court of Appeal that, judicial functions are sensitive and that, recusal and disqualification of performing those sensitive functions, should be done by a judicial offer after a very careful consideration because, that calls for examination of fitness or otherwise of the judicial officer, as a fit and proper person to perform judicial functions. From where I am standing, submissions by the learned counsel for the respondents is based on assumptions or imaginations, which in my view, cannot warrant disqualification of hearing this matter. My position is fortified by what was held by the Court of Appeal in Happy Sausages’s case (supra), wherein it was held inter-alia that:- “…It is our considered view that it would be an abdication of judicial function and an encouragement of spurious applications for a judicial officer to adopt the approach that he/she should disqualify himself/herself whenever requested to do so on application of one of the parties on the grounds of possible appearance of bias. A judicial officer should not automatically stand aside whenever requested to do so…We should perhaps point out at this juncture that there is no complaint against the learned trial judge that he had a direct interest in the subject-matter of the proceedings as 11 may lead to an appearance or likelihood of bias. Nor is it alleged that he had any pecuniary interest in the matter…(Emphasis is mine). The word “abdication” is defined in the Black’s law Disctionary 6th Edition by M. J. Connolly, et-al, St. Paul, Minn, West Publishing Co, 1990 at page 5 as follows:- “abdication is the relinquishment of an office which has devolved by act of law. It is said to be a renunciation, quitting, and relinquishing, so as to have nothing further to do with a thing, or the doing of such actions as are inconsistent with the holding of it.” The above definition of the word “abdication” tells all as to why the Court of Appeal used it in Happy Sausages’s case (supra) as a reminder to whoever intends to recuse himself or herself from hearing the matter that is before him or her must consider. I cann’t tell more than that. In Happy Sausages’s case (supra), the Court of Appeal further quoted the case of Porter and Another v Maqill (2002) 1 All ER 46 that:- "The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased." In addition to the foregoing, in Rugaimukamu’s case (supra), the Court laid down principles or conditions for the judicial officer to recuse himself or herself. The Court of Appeal held that, recusal can be 12 properly made (i) if there is evidence of bad blood between the litigant and the judicial officer concerned, (ii) if thejudicial officer has close relationship with the adverse party or one of them, (iii) if the judicial officer or his/her close family member has an interest in the outcome of the litigation other than administration of justice. The Court of Appeal emphasized that, a judicial officer should not be asked to disqualify himself or herself for flimsy or imaginary fears. It would appear that, respondents have prayed that I should disqualify myself as a forum shopping after asking the parties to address the court on competence of administrators and administratrix of the decaesed employees to file the application for condonation. I am of that view because, there is nothing material raised by the respondents as to why I should disqualify myself from handling this application. From where I am standing, the court has power to raise a leag issue and ask the parties to make submissions thereof regardless who will be affected by the said issue. The court does so to keep the law in a proper pespective and nothing else as it has happened in the application at hand where I wanted to know competence of the application before me before I consider the grounds advanced by the parties. 13 I have pointed hereinabove that, the prayer for recusal is based on imagination than real reasons hence not a ground for a judicial officer to disqualify himself. In short, there is no reason but suppossition. For the foregoing, I find that there is no justifiable reason for recusal. I therefore dismiss the prayer for recusal and order that I will proceed to hear and determine this application to its conclusion. Dated at Arusha on this 25th November 2024. B. E. K. Mganga JUDGE Ruling delivered on this 25th November 2024 in Chambers in the presence of Ndanu Emmanuel, Advocate for the Applicant and Barnaba Luguwa, Advocate for the Respondents. 14