TANZANIA ZAMBIA RAILWAY AUTORITY V ENG

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 28803 OF 2024 (Arising from Award issued on 02/07/ 2024 by Hon. Nyang’uye, H. A, Arbitrator, in Labour Dispute No. CMA/DSM/TEM/664/2017/38/2018 at Temeke) TANZANIA ZAMBIA RAILWAY AUTORITY …………….................. APPLICANT VERSUS ENG. GISBERT SAMBALA AND 4 OTHERS........………………... RESPONDENTS JUDGMENT Date of Last Order: 03/02/2025 Date of Judgment: 07/02/2025 B. E. K. Mganga, J. Brief facts of this application are that, Eng. Gisbert Sambala, Marry Messo, Adamu Mongi, Steven N. Kasera and Fadhiri Mwindadi, the herein respondents, filed Labour dispute No. CMA/DSM/TEM/664/2017/38/2018 before the Commission for Mediation and Arbitration(CMA) against Tanzania Zambia Railway Authority, the herein applicant. In the referal form (CMA F1), the respondents complained that, after their retirement, applicant under paid them and or did not pay them some entitlements. It is undisputed by the parties that, respondents called their witnesses to prove their complaint and closed their case at CMA. It happened that, on 12th February 2024 when 1 the dispute was called on for hearing, the herein applicant was expected to adduce her evidence, but did not appear as a result, Hon. Nyang’uye, H.A, Arbitrator, closed the applicant’s case and ordered the herein respondents to file their final submissions on 26th February 2024. It is undisputed by the parties that, on 19th February 2024 prior to issuance of the said exparte award, applicant filed an application seeking the arbitrator to vacate the order requiring the respondents to file final submissions and be allowed to adduce evidence. It is also undisputed by the parties that, on 29th February 2024, respondents filed the notice of objection supported by the counter affidavit of Paschal Temba, their personal representative. In addition, they filed a notice of preliminary objection that, (i) the Commission has no jurisdiction to entertain the application because it was filed prematurely and (ii) the application is incompetent. On 24th May 2024, Hon. Nyang’uye, H.A, Arbitrator, upheld the preliminary objections. On 2nd July 2024, the arbitrator issued an ex-parte award in which respondents were awarded to be paid TZS 796,438,100/=. On 4th July 2024, applicant filed an application to set aside the said ex-parte award. On 1st November 2024, the arbitrator, having considered evidence of the parties in both the affidavit and the counter affidavit, delivered her ruling dismissing the application to set aside the said ex-parte award for want of merit. 2 Applicant was aggrieved with the ruling that dismissed her application to set aside the said ex-parte award hence this application for revision. Believing to have sufficient cause, applicant filled the notice of application supported by an affidavit sworn by Ms. Mercy Chimtawi, her Principal Officer. In the said affidavit, applicant raised three grounds namely: - 1. That, the honourable arbitrator erred both in law and in fact by failing to consider the applicant’s reason for failing to appear on the date when the case was set for hearing of the applicant’s case and in deciding to proceed ex- parte against the applicant herein by issuing the ex-parte award; 2. That, the honourable arbitrator erred both in law and facts in failing to set aside the ex-parte award after having heard the application as the applicant’s absence was not based on negligence rather, was due to sufficient reasonable cause; 3. That, the honourable arbitrator erred both in law and facts by finding that respondents were entitled to payment of TZS 796,438,100/= based on a non- existent policy document termed “Terms and Conditions of Service for Management Staffs 2002” which was not submitted by the respondents and neither had never been approved by the Board of Directors of the Applicant. On the other hand, respondents filed the notice of opposition supported by their joint counter affidavit opposing this application. When the application was called on for hearing, Ms. Mercy Chimtawi, Principal State Attorney, entered appearance and argued for and on behalf of the applicant while Mr. Paschal Temba, Personal 3 representative, appeared and argued for and on behalf of the respondents. Arguing in support of the 1st and 2nd grounds, Ms. Chimtawi submitted that, on 12th February 2024, at CMA, the dispute was called on for hearing, but applicant's advocate failed to appear because she had a matter before the Court of Appeal and had submitted a letter to CMA together with summons praying for adjourned. She added that, prior to filing the said letter, applicant communicated with the personal representative of the respondents, but the arbitrator ordered the dispute to proceed ex-parte by closing applicant's case. She went on that, on 13th February 2024, applicant made follow up at CMA and filed an application to set aside the order, but the said application was dismissed for being filed prematurely as a result, applicant was directed to wait until an award is issued. Principal State Attorney further submitted that, on 2nd July 2024, the arbitrator issued an ex-parte award, as a result, she filed an application to set aside the said ex-parte award, but the said application was also dismissed on ground that, the arbitrator was not informed of the absence of the applicant. She further submitted that, on 12th February 2024, applicant filed a letter at CMA and the same was received on 12th February 2024 at 07:00 while the application was called on for hearing on the same date at 12:00. Ms. Chimtawi submitted 4 further that, the personal representative of the respondents was aware that applicant has filed a letter at CMA praying for adjournment because the same was served to him. She added that, being an officer of the court and being aware of the said letter and summons from the Court of Appeal, the personal representative of the respondents, was supposed to inform the arbitrator reasons for absence of the applicant. She cited the case of Arcodo Dennis Ntagazwa v. Buyogera Julius Bunyambo, Civil Appeal No. 51 of 1996, CAT (unreported), to support her submissions that, in order the application for adjournment to be allowed, there must be sufficient reasons. She strongly submitted that, the said letter and summons from the Court of Appeal were sufficient reason for the arbitrator to adjourn the matter. She further submitted that, on 17th January 2024, when the application was called on for hearing, applicant and her witness were ready for hearing, but the dispute was adjourned due to absence of the personal representative of the respondents. Ms. Chimtawi also submitted that, prior to issuing the ex-parte order of closing applicant’s case and allow respondents to file final submissions, the arbitrator was supposed to notify the applicant. She cited the case of Serengeti Breweries Limited v. Alberto Nyoka and 3 Others, Civil Appeal No. 77 of 2021, CAT (unreported) to 5 support her submissions that, parties should be notified before issuing an ex-parte order. Arguing in support of the 3rd ground, Ms. Chimtawi submitted that, the ex-parte award contains serious errors because respondents were awarded the so-called additional underpaid terminal benefits based on a none-existing document (exhibit P4) that was admitted without objection. She submitted that, exhibit P4 was yet to be approved, hence it was not operative. She further submitted that, the arbitrator misinterpreted the meaning and essence of exhibit P4 as a result, she issued an invalid award in favour of the respondents. With those submissions, principal State Attorney prayed the Court to allow the application by setting aside the CMA ex-parte award and ruling and order the parties to go back to CMA so that applicant can be heard by adducing her evidence. Resisting the 1st and 2nd grounds of the application, Mr. Temba submitted that, the arbitrator was justified to close the case for the applicant and proceed to issue ex-parte because, applicant had a tendency of not entering appearance. He added that, on 19th July 2023, applicant did not enter appearance as a result, the matter was adjourned to 21st July 2023, but applicant was not also present. He went on that, on 8th October 2023, counsel for the applicant entered 6 appearance without a witness on ground that the witness was attending board meeting. Mr. Temba further submitted that, on 13th November 2023 and 17th November 2023, counsel for applicant appeared without a witness on ground that the witness had an emergency. He also submitted that, on 1st February 2024 counsel for the applicant informed the arbitrator that the witness was attending board meeting. He added that, on 12th February 2024 at the time the arbitrator closed applicant's case, there was no letter from the applicant seeking adjournment. The person representative of the respondents further submitted that, applicant had no valid reason for not entering appearance on 12th February 2024. In his submissions, Mr. Temba conceded that, in the application to set aside the ex-parte awards, applicant attached (i) a letter date 5th February 2024 filed at CMA on 12th February 2024, (ii) a summons issued on 17th January 2024 requiring applicant to appear before the Court of Appeal on 12th February 2024 and (iii) WhatsApp conversation between himself and counsel for the applicant dated 5th February 2024. He also conceded that, the said letter shows that it was received at CMA on 12th February 2024. When probed as whether, there is proof that the said letter was received at CMA after the arbitrator has closed the applicant’s case and has ordered the matter to proceed ex-parte, he 7 readily conceded that there is no such evidence because respondents did not attach to their affidavit the affidavit of the person who received the said letter. When further probed in relation to presence of proceedings showing the dates applicant did not enter appearance, he conceded that, respondents did not attach proceedings to the counter affidavit to oppose the application to set aside the ex-parte award showing that applicant used not to enter appearance. When probed as whether at the time of composing the ruling dismissing applicant’s application, the arbitrator was supposed to refer to the file in which she issued ex-parte award, he readily conceded that, the said file and proceedings thereof, was not in the hands of the arbitrator because, he had already issued an award. Despite the afore going submissions, Mr. Temba maintained that, the arbitrator was justified to dismiss the application to set aside ex- parte award because, there was no proof that counsel for the applicant was attending Court of Appeal sessions and there were no reasons as to why the witness failed to enter appearance. He also submitted that, applicant had ample time to notify CMA prior to the date of hearing but she didn’t. He further submitted that, the cases cited on behalf of the applicant are distinguishable and cannot apply in the circumstances of this application. He added that, in terms of section 87(3)(b) of the 8 Employment and Labour Relations Act, Cap. 366 R.E. 2019 and rule 28(1) of the Labour Institutions (Mediation and Arbitration Guidelines) GN. No. 67 of 2007, the arbitrator was justified to dismiss the application by the applicant. With those submissions, Mr. Temba concluded his submissions praying that the application be dismissed for want of merit. Ms. Chimtawi, learned principal State Attorney had no rejoinder. I have considered submissions of the parties and their evidence in both the affidavit and the counter affidavit in support and opposition of the application to set aside the ex-parte award contained in the CMA record. From the start, I wish to point out that, this application will dispose based on the said affidavit and the counter affidavit because those are the only evidence of the parties that were adduced at CMA. My decision to base my decision on the said affidavit and the counter affidavit is anchored on a settled principle of law in our jurisdiction that, affidavit and the counter affidavit are substitutes of oral evidence. That principle has been, for several times, restated in various case laws such as Phantom Modern Transport (1985) Limited vs D.T. Dobie (Tanzania) Limited (Civil Reference 15 of 2002) [2002] TZCA 6 (10 December 2002), Bruno Wenceslaus Nyalifa vs Permanent Secretary Ministry of Home Affairs & Another (Civil Appeal 82 of 2017) [2018] TZCA 297 (13 December 2018), Rosemary Stella 9 Chambejairo vs David Kitundu Jairo (Civil Reference 6 of 2018) [2021] TZCA 442 (2 September 2021) and Rustamali Shivji Karim Merani vs Kamal Bhushan Joshi (Civil Application 80 of 2009) [2012] TZCA 16 (27 February 2012) to mention but a few. That being the position of law, all matters submitted by the parties but not contained either, in the affidavit or the counter affidavit, are not part of evidence the parties that was supposed to be considered by the arbitrator. I have read the affidavit of Mercy Chimtawi in support of the application to set aside the ex-parte award, and find that she deponed inter-alia that, after closure of the respondents’ case, the matter was scheduled for hearing on 13th November 2023, but the applicant’s witness one Marco Mabala was not present as he was attending other official duties. That, due to that reason, the matter was adjourned for hearing on 17th January 2024. That, on the latter date, applicant and the said witness were present and ready to proceed with hearing but the personal representative of the respondents was absent as he was reported sick. That, due to sickness of the personal representative of the respondents, the matter was adjourned for hearing on 12th February 2024. She further deponed that, on 2nd February 2024, applicant was served with the summons to appear before the Court of Appeal on 12th February 2024 for hearing of Civil Revision No. 277/01 of 2022 the 10 parties being Terrestrial Tanzania Limited v. Tanzania Zambia Railways authority. She also deponed that, applicant notified CMA presence of the said summon via a letter dated 6th February 2024 and communicated with the personal representative of the respondents via WhatsApp. I should point out briefly that, the said summons, letter by the applicant and WhatsApp communication were attached to the applicant’s affidavit in support of the application to set aside the ex- parte award hence part of applicant’s evidence. Chimtawi further deponed that, on follow up of the matter on the 14th February 2024 at CMA, applicant learnt that the arbitrator closed her case and ordered final submissions be filed on 26th February 2024 and 26th March 2024 as date the award will be issued. She further deponed that, applicant filed an application to set aside the ex-parte proof order, but the arbitrator upheld the preliminary objection by the respondent that the said application was prematurely filed because, the award was not yet to be issued. That, on 12th July 2024 the arbitrator issued ex-parte award awarding respondents to be paid TZS 796,438,100/=. Chimtawi further deponed that, applicant stand to suffer irreparable loss if the dispute will not be heard inter-parties because respondents were already paid all their terminal benefits. 11 On the other hand, I examined the counter affidavit of Paschal Temba, the personal representative of the respondents that was filed to resist the application to set aside the ex-parte award which is evidence of the respondents. In the said counter affidavit, the deponent noted the fact that respondents adduced their evidence and closed their case. In relation to absence of the applicant’s witness on 13th November 2023, Mr. Temba deponed that the said witness repeatedly defied the CMA orders. In paragraph 6 of the counter affidavit, Mr. Temba noted the fact that on 17th January 2024 applicant and her witness were ready to proceed with hearing, but he was not present as he was sick as a result, the matter was adjourned for hearing on 12th February 2024. In paragraph 7 of the counter affidavit, the deponent deponed that, since on 2nd February 2024 applicant was served with the summons to appear before the Court of Appeal, she was supposed to file the notice/letter notifying CMA her absence before 12th February 2024. In paragraphs 9 and 10 of the counter affidavit, the deponent noted (i) the facts relating to WhatsApp communication between himself and counsel for the applicant, (ii) that applicant made follow up on 14th February 2024 and learnt that the arbitrator closed her case and ordered respondents to file final submissions on 26th February 2024 and scheduled the ex-parte award to be issued on 26th March 2024 and that (iii) applicant filed the 12 application to set aside the ex-parte proof order but the arbitrator upheld the preliminary objection that was raised by the respondents that the application was prematurely filed because the ex-parte award was not yet to be issued. In paragraph 13 of the counter affidavit, the deponent deponed that, when the matter was called on for hearing on 12th February 2024 at 12:00, no letter was filed to the CMA registry which is why, the arbitrator closed applicant’s case. As pointed hereinabove, the affidavit and the counter affidavit were the only evidence of the parties that were supposed to be considered by the arbitrator either to allow or to dismiss the application by the applicant seeking to set aside the ex-parte award. I will, in this application, as pointed out hereinabove, only consider the said affidavit and the counter affidavit that are evidence of the parties. It was submitted on behalf of the respondents that applicant’s witness failed to enter appearance on 13th November 2023 and 17th November 2023 on ground that the witness had an emergency. With due respect to the personal representative. Those submissions are not supported by evidence of the respondents because, those dates are not reflected in the counter affidavit. What was deponed on behalf of the respondents in relation to 13th November 2023 is that the said witness repeatedly defied the CMA orders. Unfortunately, as it was correctly 13 conceded by Mr. Temba on behalf of the respondents, no CMA proceedings were attached to the said counter affidavit to show how the said applicant’s witness repeatedly defied CMA orders. Based on the evidence of the parties, it is undisputed that, on 17th January 2024, applicant and her witness were ready to proceed with hearing, but the personal representative of the respondents was not present as he was reported sick, as a result, the matter was adjourned for hearing on 12th February 2024. Again, it is undisputed by the parties that, there was communication via WhatsApp (annexture TZR2 to the applicant’s affidavit filed at CMA) between counsel for the applicant and the personal representative of the respondent relating to Court of Appeal summons and that, applicant wrote a letter seeking adjournment (annexture TZR1 to applicant’s affidavit filed at CMA). What was challenged by the respondents is delay by the applicant to notify the arbitrator after being served with the Court of Appeal summons on 2nd February 2024. In my view, that did not disapprove the fact that applicant was served with summons to appear before the Court of Appeal and that, she wrote a letter notifying the arbitrator of her absence on 12th February 2024. It is my view that applicant wrote a letter to CMA seeking adjournment. 14 My afore conclusion is supported by evidence in both the affidavit and the counter affidavit and what was stated by the arbitrator in her ruling. I have examined the said letter and find that it was stamped with CMA rubber stamp showing that it was received on 12th February 2024 as it was deponed on behalf of the applicant. In fact, the personal representative of the respondents was aware of that fact. The said fact was also communicated to the arbitrator by the personal representative of the respondents. This is reflected in the ruling dismissing applicant’s application. In the said ruling, the arbitrator stated: - “… Nimepitia kumbukumbu ambazo zilizopo katika shauri hili na kuona kuwa tarehe 12/02/2024 wakati wa shauuri(sic) lilipokuja mbele yangu kwaajili(sic) ya kusikilizwa Ushahidi wa mlalamikiwa, mwakilishi wa walalamikaji alieleza Tume hii kuwa aliambiwa na mleta maombi kuwa alileta barua ya hairisho. Tume ilipitia jarada(sic) la shauri hili wakati huo shauri lilipokuwa likiendelea, nilijiridhisha kuwa hakukuwa na barua yoyote ya udhuru iliyopokelwa na Tume kutoka kwa mlalamikiwa. Hivyo shauri liliendelea upande mmoja kwa kufunga Ushahidi wa mlalamikiwa na kutoa amri ya kuleta majumuisho ya mwisho na kupanga tarehe ya uamuzi.” (Emphasis is mine). It is clear from the above quoted part of the CMA ruling that, the personal representative of the respondents notified the arbitrator communications he made with counsel for the applicant relating to the letter seeking adjournment. In my view, that was a sufficient reason for the arbitrator to adjourn the matter to another hearing date. 15 Involvement of counsel for the applicant in another assignment in the case before the Court of Appeal as it was reflected in the letter seeking adjournment and the Court of Appeal summons cannot be said that she acted unreasonably for not appearing before CMA. I subscribe to submissions by counsel for the applicant based on what was held in the case of Arcado Dennis Ntagazwa vs Buyogela Julius Bunyambo (Civil Appeal 51 of 1996) [1997] TZCA 54 (26 August 1997) and hold that, it was justifiable for applicant’s counsel to appear before the Court of appeal and not in CMA. In my view, the arbitrator acted unreasonably in closing applicant’s case and order the case to proceed ex-parte while being aware that, this Court and the Court of Appeal, the latter being the highest Court in our country, takes precedence. The personal representative of the respondents cited the provisions of section 87(3)(b) of the Employment and Labour Relations Act, Cap. 366 R.E. 2019 and rule 28(1) of the Labour Institutions (Mediation and Arbitration Guidelines) GN. No. 67 of 2007, to support the decision of the arbitrator to close the applicant’s case and proceed to issue ex-parte award. With due respect to the personal representative of the respondents, those provisions cannot be applied when there are justifiable reasons for none-appearance as it happened in the application at hand. It is my considered opinion that, those provisions were not 16 intended to apply in every situation. I am alive that, we are human beings and that, now and then, we are facing matters that sometimes are beyond our control, such as sickness as it happened to the personal representative of the respondents, as it can also happen to the arbitrator. In such a situation, to apply those provisions wholesome, without considering exceptional circumstances, may lead to disaster. In order to avoid that to happen, wisdom and circumstances must dictate. Without prejudice to the foregoing, it was correctly conceded by Mr. Temba on behalf of the respondents that, parties did not attach to their affidavit or counter affidavit proceedings that were recorded on 12th February 2024. In short, proceedings that were recorded on 12th February 2024 did not form part of evidence of the parties. In her ruling, as quoted hereinabove, the arbitrator referred to proceedings in the file she issued the impugned ex-parte award, the file which, as it was correctly conceded by Mr. Temba, was not before her. That was an error on part of the arbitrator to go back in the file she has concluded by issuing an ex-parte award, which in fact, was not before her, for purposes of collecting evidence and use that evidence to decide the application before her. In other words, the arbitrator collected and used evidence that was not adduced by the parties to decide the application that was filed by the applicant. That was totally wrong and is 17 unacceptable. The Court of Appeal was confronted with a similar situation in case of Attorney General vs Maalim Kadau & 16 Others [1997] T.L.R 69 Tanzilii media neutral citation (Civil Application No. 51 of 1996) [1997] TZCA 84 where this Court based its decision on matters that was reported in the newspaper and radio. In the said case, the Court of Appeal held inter alia that: - “It hardly needs to be over emphasized that it is highly improper on the part of the court to rely on or to take into account radio and newspapers reports as the basis of deciding the case. Time and again this Court has expressed the correct position in law for the courts in administering justice. The Courts should base their decisions on nothing else other than the evidence adduced in court and the applicable law in the circumstances of the case. In the instant case it is inexplicable why the learned judge fell into the serious error of taking into account press and radio reports as the basis of deciding the case. This was, in our view, highly improper. We urge the courts to refrain from such practices in future.” (Emphasis is mine). I have pointed out hereinabove that, in paragraph 13 of the counter affidavit, the deponent deponed that, when the matter was called on for hearing on 12th February 2024 at 12:00, no letter was filed to the CMA registry which is why, the arbitrator closed applicant’s case. It was submitted on behalf of the applicant that, the said letter was received at CMA at 07:00hrs. With due respect to both the learned principal State Attorney for the applicant and the personal 18 representative of the respondents. There is no evidence showing time the said letter was received at CMA. It was upon the applicant to attach the affidavit of the registry officer showing that the said letter was received at 07:00 but that was not done. On the other hand, it was upon the respondents to attach to the counter affidavit, the affidavit of the registry officer showing that the said letter was received on 12th February 2024 after 12:00 hrs, the time the matter was called on for hearing to prove that at that time, there was no notice of absence to justify the order by the arbitrator, but that was also not done. Since that was not done by either the side, it is safe to conclude as I hereby do, based on the letter of the applicant, Court of Appeal summons and WhatsApp communication between counsel for the applicant and personal representative of the respondents attached thereto, that, there was a notice of absence by the applicant. It was, therefore, an error on part of the arbitrator to hold that applicant had no justifiable reason for none-appearance at the time of dismissing the application by the applicant to set aside the ex-parte award. It seems the arbitrator had in mind, speed disposal of the matter before her but forgot to balance speed and justice. The Court of Appeal, in the case of Nyanza Roads Works Limited vs Giovanni Guidon (Civil Appeal 75 of 2020) [2021] TZCA 396 (20 August 2021), has 19 cautioned the need to balance between speed disposal of cases and justice when it held that:- “Secondly, while we agree with the learned Judge on the expeditious resolution of disputes, we think that expeditiousness must be subject to the dictates of the law and justice. As we had occasion to remark in Independent Power Tanzania Ltd & Another v. Standard Chartered Bank (Hong Kong) Limited, Civil Revision No. 1 of 2009 (unreported), speed is good but justice is best (at page 26). And by justice we mean justice to both parties to the dispute…We appreciate that in terms of rule 3(1) of the Labour Court Rules, G.N. No. 106 of 2007, the High Court exercising jurisdiction as a Labour Court is a court of law and equity which ought to have regard to the fact that the duty to act promptly is not a mere technical aspect without any consequences in case of failure by a litigant to exercise his remedy as it were For all said hereinabove, I find that this application is merited. I therefore, allow it, set aside the ex-parte award and direct the parties to go back to CMA so that applicant can adduce her evidence. Considering circumstances of this application and the likelihood of perceived bias by the arbitrator, I direct that the matter should be placed before a different arbitrator who should record evidence of the applicant and issue the award without delay. Dated at Dar es Salaam on this 07th February 2025. B. E. K. Mganga JUDGE 20 Judgment delivered on this 7th February 2025 in Chambers in the presence of Mercy Chimtawi, Principal State Attorney for the Applicant and Paschal Temba, Persona Representative of the Respondents. B. E. K. Mganga JUDGE A 21