tanzania union industrial and commercial workers tuico vs tanzania breweries public limited company 2023 tzhcld 1342 30 june 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 130 OF 2023 (Arising from an Award issued on /06/2023 by Hon. Mwakisopile, I.E, Arbitrator, in Labour dispute NO. CMA/DSM/ILA/188/2023/98/2023 at Ilala) TANZANIA UNION INDUSTRIAL AND COMMERCIAL WORKERS (TUICO) ………….………………………………………..…..…. APPLICANT VERSUS TANZANIA BREWERIES PUBLIC LIMITED COMPANY…………….. RESPONDENT JUDGMENT Date of last Order: 22/06/2023 Date of Judgment: 30/06/2023 B. E. K. Mganga, J. Brief facts of this application are that, Tanzania Breweries Public Limited Company, the herein respondent is a legal entity dealing with manufacturing and distribution of alcohol in Tanzania as the name itself suggests. Respondent has plants for brewing alcohol in Arusha, Dar es Salaam, Mbeya and Mwanza regions. It is undisputed that majority of the respondent’s employees are members of the Tanzania Union Industrial and Commercial Workers (TUICO), a trade union, the herein applicant. It is 1 undisputed by the parties that, applicant is the recognized agent and acts exclusively as the bargaining agent of the respondent’s employees. It is further undisputed facts that the parties entered a Collective Bargain Agreement and that it is covers also rights of employees of the respondent upon termination etc. It is said that prior to 2016, respondent was owned by Submiller but since 2016 respondent became under ownership of ABInBeu. It is undisputed fact that, shortly after owning the respondent in 2016, ABInBeu started retrenching her employees, who, some were members of the applicant and others being none members. It is also undisputed fact that, respondent retrenched her employees in 2017, 2018, 2019 and 2020. It is undisputed that undisputed that in July 2019 and September 2019 respondent retrenched 20 employees and 80 employees respectively making a total of 100 employees. The reason advanced by the respondent for retrenchment that was carried in July 2019 was that she was restructuring capital expenditure and procurement process in the business through automation and centralization. It is undisputed that the reason advanced by the respondent for retrenchment she carried in September 2019 was technological advance in the sophisticated world. It is further 2 undisputed that in 2020, respondent retrenched 150 employees in the supply and logistics functions on ground that she was restructuring her Tanzania operation. It is undisputed that on 13th March 2023, respondent served applicant a Notice of proposed intention to retrench 37 employees on ground that she was restructuring her Tanzania operations. On 20th March 2023 applicant and respondent held a retrenchment consultative meeting in which each part gave a proposal inter-alia on retrenchment package. It happened that no agreement was reached on that day, as a result, two days thereafter namely, on 22nd March 2023, respondent filed Labour dispute No. CMA/DSM/ILA/188/2023/98/2023 before the Commission for Mediation and Arbitration henceforth CMA at Ilala. In the Referral Form (CMA F1), respondent indicated that the nature of the dispute is failure to agree on retrenchment package that the company is undergoing restructuring rendering certain positions redundant. In the said CMA F1, respondent indicated further that, consultation with the union was done and that management offered retrenchment package which was not accepted by the union hence the dispute because the Union i.e., the herein applicant demanded higher package. Respondent indicated further that, 3 the dispute arose on 20th March 2023. On the outcome of the dispute, respondent indicated that “parties to agree on the retrenchment package”. In the said CMA F1, also respondent indicated that the matter should be treated with extreme urgency. On 17th May 2023, three issues namely, (i) whether selection criteria proposed by the complainant (the herein respondent) were legitimate, (ii) whether proposed retrenchment package by the complainant (the herein respondent) was fair and (iii) to what relief(s) are the parties entitled to. On 7th June 2023, Hon. Mwakisopile, I.E, Arbitrator, having heard evidence and submissions from the parties, held that selection criteria were a non- issue because it was not disputed by the herein applicant who was the respondent. The arbitrator relied on the internal performance report (exhibit TBL6) and held that financial position of the respondent has collapsed and that there was no evidence to the contrary. Having so held, the arbitrator issued an award that retrenchment package proposed by the respondent is fair and just and ordered respondent to pay the proposed employees to be retrenched according to her proposal. Applicant was aggrieved with the said award, as a result, she filed this application for revision under certificate of urgency. Applicant filed the 4 affidavit affirmed by Khalid Mfaume to support the Notice of Application. In the said affidavit, applicant raised ten (10) grounds namely:- 1. That, Arbitrator erred in law and fact by acting with prejudice in entire process of determining the dispute in question. 2. That, Arbitrator erred in law and fact by failing to correctly consider evidence tendered/adduced by Applicant, hence reached to erroneous decision. 3. That, the Award issued by the Arbitrator contains errors material to the merit of the dispute occasioning injustice to the Applicant. 4. That, the Honourable Arbitrator erred in law and fact by not properly analyzing all evidence of the parties and relied only on evidence of the respondent hence ended up with wrong interpretation of the law and issued an award in favour of the respondent. 5. That, the Honourable Arbitrator erred in law and fact by failing to analyze applicant’s evidence and consequently wrongly interpreted evidence adduced by applicant. 6. That, Honourable Arbitrator erred in law and fact by failing to analyze Applicant’s evidence and consequently reached an erroneous decision and yet respondent failed to prove that the reason to conduct retrenchment was due to economic constrains that caused low purchasing power her customers or due to Company’s need to restructure her Tanzania operation to align with the rest of African Zone operations, Brewery of the future). 7. That, the Honourable Arbitrator erred in law and fact by failing to observe clearly evidence adduced by the Applicant and reached an erroneous decision despite of clear explanation given by the Applicant in her final submissions. 8. That, Honourable Arbitrator erred in law and fact in disregarding completely Applicant’s final submissions in support of the matter, to the contrary, 5 based on unfounded fats and reasoning instead of reasoning in line with the law and evidence in record. 9. That, Honourable Arbitrator erred in law and fact by declaring that respondent has collapsed in her financial position hence ended up into an erroneous decision which declared retrenchment package proposed by the respondent as fair and just. 10. That, Honourable Arbitrator erred in law and fact by wrongly interpreting evidence and concluded that the reason for retrenchment was economic constraints, yet the truth and genuine reason for retrenchment was restructuring of respondent’s operation in Tanzania. Respondent filed both the Notice of Opposition and the Counter affidavit sworn by… resisting this application. When the application was called on for hearing, applicant was represented by Jamal Ngowo and Khalid Mfaume both working with the applicant while respondent was represented by Godwin Nyaisa, learned advocate. Mr. Ngowo opted to submit generally in support of the aforementioned grounds of revision. Mr. Ngowo submitted that, respondent initiated retrenchment process based and invited the applicant to participate in that process. He went on that, according to exhibit TBL2, the reason for retrenchment was restructuring. He submitted further that, on 20th March 2023, applicant and respondent held a meeting as per 6 exhibit TBL3 that retrenchment was due to restructuring. He added that, in the said meeting, the parties agreed that status quo should be maintained. Mr. Ngowo submitted that, only one meeting was conducted in the presence of the applicant and respondent and that, the rest of consultation meetings in Arusha, Mbeya, Mwanza and Dar es Salaam, were done in the absence of the applicant. He went on that, employees of the respondent did not accept the proposal of the respondent on package and proposed the respondent to adopt the counter proposal by the applicant. Due to disagreement, respondent filed the dispute at CMA. He criticized the arbitrator in holding that respondent through exhibit TBL6 disclosed that her financial situation has collapsed and that retrenchment package (exhibit TBL3) are just and issued the award in favour of the respondent. He went on that, during consultation meeting, respondent stated that reason for retrenchment is restructuring as per TBL2 that was tendered by respondent. He added that, during hearing at CMA, PW1 testified on behalf of the respondent that reason for retrenchment is economic constraint and that the company was operating under loss. Mr. Ngowo submitted further that, Section 38(1)(b) of the Employment and Labour Relations Act [Cap. 366 R.E. 2019] requires the 7 employer to disclose all relevant information for the intended retrenchment for the purpose of proper consultation. He further cited Rule 23(1) and (2) of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 and submit that termination on operational requirements, can be due to (i) economic needs, (ii) technology needs and (iii) structural needs. He submitted further that, respondent was restructuring the company hence reason for retrenchment was restructuring and not economic needs. He went on that, from the evidence of PW1 the only witness for the respondent, retrenchment was due to economic constraint. He maintained that the reason for retrenchment was as per exhibits TBL2 and TBL3 was restructuring but the arbitrator relied on exhibit TBL6 to hold that respondent was facing economic hardship. He argued that, since during consultation respondent stated that retrenchment was due to restructuring, employees were not consulted based on economic hardship and prayed consultation based on economic constraint be conducted afresh. Mr. Ngowo submitted that retrenchment package was unfair because reason for retrenchment was not economic constraint, rather, restructuring that requires package to be different. He submitted further that, DW1 8 testified that there was retrenchment in 2017, 2018, 2019 and 2020 based on restructuring and that, those who were retrenched, were paid amazingly than the amount respondent is proposing to pay employees in this application. In impressing the court, Mr. Ngowo, referred to exhibit TUICO1 which shows how employees who were previous retrenched were paid. He argued that, if the reason for retrenchment is restructuring, then, respondent should adopt her practice over five years where she paid good retrenchment package to those who were retrenched. He added that, during that period, respondent was not performing well due to COVID 19 but she paid many employees who were retrenched better than the package she is proposing to pay 37 employees in the application at hand. Mr. Ngowo submitted that, the arbitrator erred for her failure to properly analyze evidence. He argued that, the internal performance report (exhibit TBL 6) for the quarter that ended on 31st March 2023 is not audited as it plainly shows. Audit report was issued after respondent had already initiated retrenchment process. Arguing in support of the application, Mr. Mfaume, submitted that respondent did not comply with the provisions of Section 38(1)(b) of Cap. 366 R.E. 2019 (supra) and denied the applicant and respondent’s employee 9 right to engage in a proper consultation on economic constraint. He went on that, respondent had legal obligation to establish that there was fair reason and comply with fair procedure. He submitted further that, non- disclosure of economic reason by the respondent, denied applicants the right under Rule 23(6) of GN. No. 42 of 2007(supra). Mr. Mfaume added that, consultative meeting is participatory between employer and employees in terms of Section 67 of Cap. 366 R.E. 2019(supra) hence non- disclosure of economic constraint, denied applicant and respondent’s employees to properly participate in consultative meeting. Mr. Mfaume submitted that the arbitrator did not consider applicant’s final submission. In his submissions, Mr. Mfaume conceded that cases are decided based on evidence adduced by the parties and not based on submissions. He was quick to submit that, those submissions could have helped the arbitrator in reasoning. Mr. Mfaume submitted further that there are errors on the award because the arbitrator wrongly accepted that respondent is in economic constraint as a reason for retrenchment while applicant and or employees of the respondent were unaware and were not consulted based on economic needs. Mr. Mfaume abandoned the 1st ground and concluded 10 submissions on behalf of the applicant praying the application be allowed, the award be quashed and set aside. Resisting the application on behalf of the respondent, Mr. Nyaisa, learned counsel argued the 2nd, 4th, 5th, 6th and 7th grounds together because all relate to failure of the arbitrator to analyze evidence. In arguing these grounds, he submitted that the arbitrator properly considered and analyzed evidence in relation to the issues that were framed for determination. He went on that, the dispute was on selection criteria and retrenchment package. Counsel for the respondent submitted that, DW1 admitted in his evidence that selection criteria was not an issue and that, none of the applicant’s witness testified on selection criteria. Counsel submitted further that, PW1 testified that applicant refused to sign minutes of 14th April, 2023 (exhibit TBL4) relating to selection criteria. He added that, PW1 testified that selection criteria were an issue which is why, it was included in the matters in dispute. Counsel added that arbitrator analyzed evidence and concluded that selection criteria was not an issue. On the issue relating to package, learned counsel for respondent submitted that respondent testified that she is not in a position to meet applicant’s demand because she was operating under loss. That, based on 11 that, respondent tendered exhibit TBL1 to show that she cannot meet previous offer. He added that exhibit TBL6 cemented on that. Learned counsel for the respondent went on that, applicant tendered previous retrenchment package agreements (exhibit TUICO1 collectively) and that the arbitrator analyzed that evidence and concluded that, that exhibit cannot apply because their life spare had expired. Counsel for the respondent concluded that the 2nd, 4th, 5th, 6th and 7th grounds have no merit because evidence was properly analyzed and that respondent’s evidence was not controverted as it was concluded by the arbitrator. Arguing the 3rd ground, learned counsel for the respondent submitted that, the award is based on evidence adduced and that there is no error on it. he submitted further that, applicant did not adduce evidence on economic soundness of the respondent to meet the counter offer. He went on that, on the other hand, respondent adduced evidence including exhibit TBL2 showing that costs were running high. Counsel for the respondent concluded that there is no error that occasioned injustice. Arguing the 8th ground, Mr. Nyaisa, learned counsel for the respondent submitted that final submissions were properly considered. He 12 added that, even if they were not considered, submissions are not evidence hence arbitrator cannot be faulted. Resisting the 9th ground, counsel for the respondent submitted that arbitrator did not declare respondent’s financial position has collapsed. Counsel argued that the arbitrator just said those words in a passing and as an opinion. In his submissions, counsel for the respondent conceded that it was not proper for the arbitrator to make that opinion because collapse id defined in the Oxford Advanced Learner’s Dictionary to mean sudden failure. Counsel conceded further that the reason for retrenchment was restructuring. Counsel for the respondent was quick to submit that PW1 testified that respondent’s business was operating under loss as per exhibits TBL1 and TBL6 and that Arbitrator’s findings were based on those exhibits. Arguing the 10th ground, Mr. Nyaisa, learned counsel for the respondent submitted that parties are bound by their own pleadings and cited the case of Lem ington Lew a Katana v. Leopard Tours Ltd , Revision Application No. 23 of 2023, HC (unreported) to bolster his submissions. Counsel for the respondent submitted further that, the dispute at CMA was retrenchment package. He added that, reasons for 13 retrenchment has never been an issue. Counsel went on that, in the process to prove why she cannot meet the offer by the applicant, respondent adduced evidence relating to financial constraint. Counsel for the respondent submitted further that, there must be connection between the offer of retrenchment package and reason for retrenchment. He maintained that reasons for retrenchment was restructuring. Counsel for the respondent added that, the issue of economic capability just came in when considering reasons as to why respondent cannot afforded to accept the offer by the applicant. Counsel for the respondent maintained that, the rationale for restructuring was cost serving. Counsel added that exhibits TBL3 and TBL4 all being minutes, shows that applicant participated in all consultation meetings contrary to what it was submitted that she participated only in one meeting. On disclosure of information, Mr. Nyaisa, learned counsel for the respondent submitted that there was disclosure hence Section 38(1)(b) of Cap. 366 R.E. 2019(supra) and Rule 23(1) and (2) of GN. No. 42 of 2007(supra) were complied with. Counsel submitted further that, Rule 23(2)(c) of GN. No. 42 of 2007 (supra) provides how structural need can 14 arise. Counsel for the respondent added that structural change in the application at hand was due to increase of business costs. On the prayer made by Mr. Ngowo for the court to order consultation relating to economic hardship of the respondent be made, Mr. Nyaisa learned counsel for the respondent submitted that, pleadings at CMA does not support that prayer. Counsel for the respondent added that, the said order will prolong the process hence kill the respondent’s business. Counsel for the respondent submitted that reference that was made on retrenchment package made to employees who were retrenched previously cannot apply in the application at hand because circumstances has changed because respondent cannot pay the offer by the applicant. Counsel for the respondent submitted that there is no proof that respondent performed well last year and the year before or this year. He argued that submissions that respondent performed well last year are only from the bar. Mr. Nyaisa, learned counsel for the respondent strongly submitted that the arbitrator did not error to rely on exhibit TBL1 namely a report on a research. Counsel went on that, the research was conducted in January to March, 2023. In his submissions, counsel for the respondent conceded that the person who conducted the research did not testify. 15 Counsel for the respondent was quick to submit that during consultation, applicant accepted reasons hence they cannot now be permitted to challenge that reason because the reason for retrenchment has never an issue at CMA. Responding to the complaint that only one consultation meeting was held between applicant and the respondent, Mr. Nyaisa, learned counsel for the respondent submitted that consultation meeting must not be many. He cited the case of M erchanised Cargo System (T) Ltd v. M oham ed M kum ba, Revision No. 118 of 2021, HC (unreported), Num et v. North M ara Gold M ine Ltd, Revision No. 6 of 2015, HC (unreported) and Bernard Gindo & 27 Others v. ToL Gases Ltd [2013] LCD 20 to support his submissions that consultation was properly made and that the Court cannot force the employer on the retrenchment package payable as long as there was reason and procedures were followed. Counsel for the respondent submitted further that, applicant was duty bound to prove the facts relating to her counter offer based on allegation that respondent was not in economic hardship. Counsel cited the case of Ham idu Abdallah M bekae & 11 Others V. Be Forw ard Tanzania Co. Ltd, Civil Appeal No. 380 of 2019, CAT (unreported) to 16 support his submissions that, if the dispute is not on fairness of termination, each party has a duty to prove the issue raised. Counsel for the respondent prayed the application be dismissed for want of merit. In rejoinder, Mr. Ngowo for the applicant submitted that, the dispute was on package while applicant was aware that reason for retrenchment was restructuring until when PW1 testified that retrenchment was due to financial constraint. He maintained that financial constraint was never raised during consultation meeting (exhibit TBL3). Mr. Ngowo maintained further that, applicant attended only one meeting and that exhibit TBL4 does not prove that applicant participated in those consultation meetings, rather, those consultation meetings between respondent and her employees. Mr. Ngowo conceded that even a single meeting can be sufficient if the parties reach agreement. He was quick to submit that, in exhibit TBL3, there was no agreement which is why, it was agreed that status quo be maintained. Mr. Ngowo argued that there was no full consultation. He submitted further that there is no evidence proving that parties agreed on the reason for retrenchment and that the dispute was only on the amount of package payable to the employees. Ngowo argued 17 further that respondent was supposed to be specific on the reason of retrenchment. At the time of composing my judgment I went through the CMA record and find that all exhibits for the applicant i.e. TUICO 1 and TUICO 2 were tendered without a prior prayer by the witness to tender them and further that the respondent was not asked whether she objects or not. I noted the same omission was done to all exhibits tendered by the respondent i.e., namely, exhibit TBL1 and TBL2, TBL3, TBL4, TBL5, TBL6 and TBL7. I noted further that exhibit TBL7 was not marked or endorsed by the arbitrator to show that it was tendered as such, it cannot be differentiated from other documents that were filed by the respondent but not tendered as evidence. Not only that but also, exhibits that were referred to, by the parties containing several documents with different dates, the arbitrator endorsed only one document and did not show that others were also tendered in evidence. With those observations I summoned the parties and asked them to address the Court whether exhibits were properly tendered and admitted in evidence and the effect thereof. 18 Responding to the issue raised by the court, Mr. Ngowo submitted on behalf of the applicant that, the procedure adopted by the arbitrator is not proper. Mr. Ngowo submitted further that, documents that were improperly admitted cannot be part of evidence. He went on that, if those documents are expunged, evidence of the parties will be affected. Mr. Ngowo submitted further that, it was not proper for the arbitrator to consider documents that were improperly admitted and others that were not admitted. For the foregoing, Mr. Ngowo prayed that CMA proceedings be nullified, the award be quashed and set aside and order trial de novo. Responding to the issues raised by the court, Mr. Nyaisa, learned counsel for the respondent submitted that, proceedings does not show that witnesses requested to tender exhibits and further that they do not show that the other party was given right comment whether she has objection or not. Counsel for the respondent was quick to submit that the omission is not fatal where the other side is not complaining to have been denied right to be heard on exhibits tendered. Counsel for the respondent submitted further that, the award has mentioned only exhibits which were marked and endorsed. He submitted further that, the award is not vitiated by the omission because it does not 19 show that the arbitrator considered unendorsed documents. Counsel for the respondent submitted further that, exhibit TBL7 was not considered in the award. Counsel strongly submitted that, despite the omission, the award was not vitiated. Mr. Nyaisa, learned counsel for the respondent submitted further that, recoding of the proceedings including the request to tender exhibit, the opportunity to object or concede and endorsement on exhibits is the domain of the arbitrator which parties has no control with. He went on that, the parties should not be condemned because of the mistake of the arbitrator and that proceedings should not be nullified. Counsel for the respondent submitted that, in the alternative, if the Court finds that the omission is fatal, the proper remedy is the Court to nullify proceedings from the date witnesses started to testify and order trial before a different arbitrator. I have carefully examined evidence of the parties in the CMA record and considered submissions made on behalf of the parties. In disposing this application, I will for obvious reason, consider first the issues raised by the court. It was correctly submitted on behalf of the parties that CMA proceedings does not show that witnesses prayed to tender exhibits and 20 that the other party was afforded right to comment by raising objection or stating that there is no objection. CMA proceedings shows that the witness was testifying and suddenly the arbitrator recorded that the document has admitted as exhibit and appended her signature and then recorded that it was admitted without objection. When Emiliana Felix Karumna (PW1), the only witness for the respondent was testifying, at the time of admitting a document titled “Retrenchment consultation minutes between Tanzania Breweries PLC (the Company) and Tanzania Union Industrial and Commercial Workers –TUICO (the Union) (exhibit TBL3) dated 20th March 2023, the arbitrator recorded as hereunder: - “…Tulimpelekea notisi ya maandishi ambayo ilikuwa na kusudio na kuonyesha sababu halisi kwanini zoezi hili linakuwepo na kuonyesha muda itakao tokea na kumkaribisha kwenye mkutano wa majadiliano. Kielelezo TBL 2 (Signature) 22/05/23 kimepokelewa bila kupingwa.Tulikutana tarehe 20/03/2023 kwa ajili ya majadiliano Kielelezo TBL 3 kimepokelewa (signature) 22/05/2 bila kupingwa” Again, when PW1 was testifying especially at the time of admitting the document titled “internal performance report. Unaudited results for the quarter ended 31st March 2023” exhibit TBL 6, the arbitrator recorded: - “…Mwajiro anashindwa kukubaliana na proposal ya TUICO kwani Co. haifanyi vizuri kiuchumi kama ilivyokuwa awali. Tuna internal sales + 21 performance report kuonyesha hali ya uchumi wa Co. Kielelzo TBL 6 kimepokelewa (signature) 22/05/23 bila kupingwa.” It is clear from the quoted evidence relating to exhibits TBL3 and TBL6 that were considered and relied on by the arbitrator in deciding the dispute between the parties that, (i) PW1 did not pray to tender those documents as exhibits and (ii) the other party i.e., the herein applicant was not asked to comment whether she has objection or not. What is clear is that PW1 simply mentioned the document and the arbitrator marked it as exhibit and appended her signature and date. It is clear that having marked as exhibit, appended a signature and put the date, the arbitrator, as an afterthought, indicated that the document was admitted without objection. It is my view that, the words “admitted without objection” were supposed to be indicated before admitting the document as exhibit. It is my view that the words “without objection” were inserted after the words “it has been received” and after appending a signature and inserting the date, as an afterthought. I am of that view because under normal circumstances it was not supposed to appear as it is in this application. That was not proper because the other party was denied right to comment hence was denied right to be heard. 22 When Benard Bakari Lingewe(DW1) was testifying and at the time of admitting a document titled “Retrenchment agreement entered between Tanzania Breweries PLC (the Company) and TUICO dated 17th July 2020, (exhibit TUICO 1), arbitrator recorded as hereunder: - “…Mwajiri alisema anakusudia kufukuza wa/kazi 37 kwa mujibu wa notisi ila mwajiri alisema kuna w/kazi wengine 5 wanaenda kujadiliana nao juu ya mustakabli wao kama watakubali kushusha bonus zao, kasma wakishindwa nao watapunguzwa. Nimeshuhudia mazoezi 4 ya upunguzwaji kazi, 2017, 2018, 2019 na 2020. Kielelezo TUICO-1 Kimepokelewa (signature) 24/05/2023 bila pingamizi.” Again, when Isdory Aman Lyewe(DW2) was testifying, at the time of admitting the document titled “RESTRUCTING NOTICE dated 30th June 2020(exhibit TUICO 2), the arbitrator recorded as hereunder: - “… sababu alizoleta mwajiri za retrenchment ya 2020 ni zile zile alizoleta kuwa ni kutaka ku-align na muundo wa zone yote ya Africa. Kielelezo TUICO-2 kimepokelewa (signature) 23/05 bila kipingamizi. Zoezi hilo la 2020 ilikuwa watu 150.” It is clear from above, that both DW1 and DW2 did not pray to tender exhibit TUICO-1 and TUICO-2 respectively as evidence. Again, the herein respondent was not asked to comment whether she objects admissions of those documents into evidence or not. That also denied respondent right to be heard. It is clear therefore that, exhibits TBL3 and 23 TBL6 that were admitted in favour of the respondent on one side and exhibits TUICO-1 and TUICO-2 admitted in favour of the applicant were improperly admitted. In my view, that was fatal because, it deprived the other party right to be heard. There is a litany of case law that a document not tendered and properly admitted in evidence, cannot form part of evidence. see the case of M hubiri R ogega M ong'ateko vs M ak M edics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452, M .S SDV Transam i Lim ited vs M .S Ste Datco (Civil Appeal 16 of 2011) [2019] TZCA 565, Japan International Cooperation Agency vs. Khaki Complex Limited [2006] T.L.R 343, I m ran M urtaza Dinani vs Bollore Transport & Logistics Tanzania Ltd (Rev. Appl 253 of 2022) [2023] TZHCLD 1170 and Sm art I ndustry Lim ited vs R ajabu R am adhani M bonde and 11 Others (Revision Application No. 76 of 2023) [2023] TZHCLD 1280 to mention but a few. In M hubiri’s case (supra), the court of Appeal held inter-alia :- “It is trite law that, a document which is not admitted in evidence cannot be treated as forming part of the record even if it is found amongst the papers in the record… Therefore it is clear that the two courts below relied on the evidence which was not tendered and admitted in evidence as per the requirement of the law. This omission led to miscarriage of justice because the 24 appellant was adjudged on the basis of the evidence which was not properly admitted in evidence…” In the application at hand, documents were not tendered by the witnesses but were simply admitted as exhibits. In the afore cited cases proceedings were nullified and trial de novo was ordered. It was submitted by counsel for the respondent that the omission did not vitiate proceedings. That submission is not correct in my view, because in the award, the arbitrator considered both exhibit TBL 3 and TBL 6 in issuing the award in favour of the respondent. It is evident in the award that arbitrator relied on exhibit TBL 6 in holding that the proposed package by the respondent was fair because respondent’s financial position has collapsed and that applicant did not adduce evidence to the contrary. It was submitted by counsel for the respondent that the parties have no control on how proceedings should be recorded including request to tender exhibits and or giving the other party an opportunity to comment because that is the domain of the arbitrator. It was further submitted on behalf of the respondent that the parties should not be punished for that omission by nullifying CMA proceedings. I entirely agree with counsel for the respondent that, it is the duty of the arbitrator to record proceedings 25 properly. However, the prayer that proceedings should not be nullified because that will amount to punish the parties for irregularities caused by the arbitrator cannot be accepted. I am of that view because, the court cannot act on evidence improperly admitted as it happened in the application at hand. Therefore, submissions by counsel for the respondent that nullification of proceedings due to omissions done by the arbitrator will be punishing them cannot be accepted. It was correctly submitted by counsel for the respondent that, in the award, the arbitrator did not consider exhibit TBL7. It is also undisputed that, while proceedings show that exhibit TBL 7 was admitted in favour of the respondent, there is no document marked as exhibit TBL 7. It is my view that, what I have pointed hereinabove, affected integrity of the whole proceedings. In my view, it is unclear as to how many words and or what evidence was illegally added by the arbitrator. It is uncalled practice for the arbitrator to insert words in the proceedings purporting to show that exhibits were received without objection while they were not. The words suggesting that exhibits were received without objection, as pointed hereinabove, were inserted after the arbitrator has admitted the exhibit and has signed to show that the exhibit have been admitted. In my view, 26 that was done as an afterthought. For that reason, in order to do justice to the parties and clear doubts, the whole CMA proceedings are liable to be nullified. It is undisputed that the dispute was filed and heard under certificate of urgency. It is also undisputed that, this application was filed and heard under certificate of urgency and that the parties were not supplied with typed proceedings. In fact, the parties noted the omissions I have pointed hereinabove at the time I summoned them. Therefore, in no way, both applicant and respondent could have noted that exhibits were wrongly admitted in evidence. Therefore, applicant cannot be faulted for her failure to include in her affidavit in support of the application the ground relating to improper admission of documents as exhibits. What I have pointed hereinabove has disposed the whole application. For that reason, I will not consider submissions of the parties in relation to the grounds raised by the applicant. For the fore going, I hereby nullify the whole CMA proceedings, quash and set aside the award arising therefrom and order trial de novo before a different arbitrator without delay. Since the dispute was filed 27 under certificate of urgency, I director that the same should be accorded the urgency it deserves. Dated at Dar es Salaam on this 30th June 2023 B. E. K. Mganga JUDGE Judgment delivered on this 30th June 2023 in chambers in the presence of Jamal Ngowo and Khaliid Mfaume, the Legal Officer and Assistant Secretary, respectively for the Applicant and Godwin Nyaisa, Advocate for the Respondent. B. E. K. Mganga JUDGE 28