tanzania zambia railway authority another vs peter reuben masenga 2022 tzhcld 225 19 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION NO. 47 OF 2022 TANZANIA ZAMBIA RAILWAY AUTHORITY......... 1st APPLICANT ATTORNEY GENERAL............................................... 2nd APPLICANT VERSUS PETER REUBEN MASENGA RESPONDENT (From the decision of the Commission for Mediation a,ndJ\rbitration^at Temeke) (Ngalika: Mediator) d- dated 14th January, irAY REF: CMA/DSM/TMK/U70/2021 29“’ April & 19th May 2022 Rwizile, J f This court i^^^M^o*call for the records in Labour Dispute No. cMA/DSM/TMK/i70/2021 decided by the Commission for Mediation and Arbitraffi^CMA) and revise the same. Facts of this case can be stated as hereunder, that the respondent lodged a complaint and an application for condonation in the CMA alleging that he was under paid his retirement benefit. The application for condonation was granted and the matter proceeded with mediation. The applicants were aggrieved by granting of condonation and hence this application. The application was supported by the affidavit of Beatrice Nyangoma Mutembei, Senior Legal Officer of the first applicant which raised the legal issues for revision as hereunder: - 1. Whether the CMA was legally proper to grant the application for condonation. 2. Whether the respondent's reasons were^sufficient^to move the mediator to grant the application for condgnatib'n^ 3. Whether the CMA property anatysecfthe parses' arguments in the Impugned ruling. Both parties were represepted/^Mfcgfelias Mwendwa, State Attorney represented the applicahts^whereas Mr. Paschal Temba, Personal Representative repfesentedrfhe respondent. At the heariTOKthB court was in doubt if granting an application for condgnatiog.^s not an interlocutory order which is not subjected of revision at>this stage. The parties were therefore asked to address the court on the propriety of this application. Mr. Mwendwa submitted that the application is competent. It does not arise from the interlocutory order as the application for condonation is a complete application. He submitted that the rights of the parties were determined fully and conclusively. He supported this position by the case of Tanzania Posts Corporation v Germian Mwandi, Civil Appeal No. 474 of 2020 and prayed for the application be heard on merit. Mr. Temba a personal representative for respondent submitted that, this application is based on interlocutory order. He argued that the CMA upon jg v ® % hearing an application for condonation found there wer®sufficieo|jjeasons for delay and so condoned it. Mr. Temba stated further that%fter a ruling, the dispute was schedules for hearing on 2^januaiy^022 at ll:00hrs. In his view that meant the main disput^^s^^pding. He stated that CMA form No.^^itemised^the nature of dispute to be retirement package, salai^compl^fon, pension compensation and inflation compensation^ Tlfese^claims are yet to be decided by the Commissiq^^g^ded^He therefore asked this court to hold that an applicationT^OTndpnation did not finally determine the dispute. He too, citSkthe sarrib1 case of Tanzania Posts Corporation v Germian Mwandi (supra) at page 13 and 19 where it is provided that applications of this nature are not appealable. He then prayed for the application to be dismissed. To re-join, Mr. Mwendwa submitted that the claims before the CMA in CMAF1 are advanced in a separate application. The same he argued, 3 should not be mixed up with the application for condonation. He insisted that the application for condonation was heard and finally determined and prayed for the application to be heard. when dealing with the application, I find the relevant provision is Rule 50 of the Labour Court Rules, G.N. No. 106 of 2007, whichjprovides as follows: - No appeals, review or revision shall He on^^^xutory or incidental decisions or orders, unless such decislbnsrhave me effect of finally determined the dispute. At law therefore, it is as clear^^cn/^^^n interlocutory order is not subject of appeal or revision. The point to determined is whether, an resolutiopgf the whole controversy. This definition is in line with the decision of the Court of Appeal, in the case of Tanzania Posts Corporation v Germian Mwandi (supra) at page 10 - 11, it was stated as: - 4 "In our view, what the above definitions entail, is that the orders that do not completely dispose ofall Issues oflaw and fact that were presented to the court are interlocutory decisions or orders... Such orders, under the law of this Country are not appealable to this Court..." In clear terms, the court at page 13 of the judgemen&fead this to, say in respect of what was named as the nature oftheiprder test, "...The test requires answers to more^orJe'ss two"questions... one, what were the remedies that were'Sough&and two, were all such rights or remedies conclusivel^d$ermined...if the answer to question two is thaHeyerythirigat the High Court was finally and conclusively wotted uP/Jte decree in revision will be a final decree andtthe bgr^^^tion 5(2)(d) at the AJA will not apply..." The recqy^hasWiSat in CMAF.l the respondent has a dispute with the apt^icants. Thesame are not centred on whether or not the respondent had reason for delay. The dispute is about rights upon termination of his employment. In actual sense, his claiming for dues not paid upon retirement. The claims are still pending. The CMA ruling at page 1 was vehement about it; 5 "Huu ni uamuzi wa maombi ya kutaka shauri lisikil[zwe nje ya muda uliowasillshwa na mleta maombi ambapo katika kesi ya msingi analalamikia maiipo ya stahiki zake baada ya kustaafu..." The mediator specifically stated that there is a dispute pending before the CMA. It is therefore clear to me, that an application filecLput of time cannot be heard unless, the CMA is satisfied that^^re are^,fficient reasons for delay. That did not in any way determine ^^hights of the parties. It is therefore not true that applicatiq^^^ntloWion is suit that stands alone. To be able to appreciate tji^QPe tweeds to apply Rule 11(2) of the Labour Institutions (Mediation andAfeitration) G.N. No. 64 of 2007 which states: - 'J4 party shall apply fbccbndonation, by completing and delivering the presccibed con^onation form when delivering the late document or ^^£^tim-to the commission." This provisioh^proves that the application for condonation goes together with the main application as termed here (the late document or application). For that matter this is clear that the main application was not yet determined. This has been proved by the CMA records which shows that the matter has been pending at mediation stage waiting for this application to be determined. I am therefore bound to hold, that an order 6 condoning a late application is interlocutory and so not appealable or in this case not subject of revision. To hold otherwise, it is as good as reading rule 50 of the of Labour Court rules, upside down. Having so held, the remedy to the application of this nature was provided by the Court of Appeal in the case of Generator Logic v Eli Mukuta, Civil Appeal No. 272 of 2019, Court of Appeal of Tanzania'; it^^ss^^d: - "We need not say more. It is our co^i^on that the appeal attempts to challenge an interiocutofad^^n of the High Court against the dictates of Secdon^^^^o^the AJA. It is therefore improperly before us so ^strifc^tedut, ..." Based on the foregoing analyses, this application has no merit, it is hereby dismissed. Since t^ig^^^^our matter, I order for each party to bear own costs%,. JUDGE 19.05.2022