the governing body of the college of business education vs biton carson mwenisongole 2022 tzhcld 245 11 may 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM CONSOLIDATED REVISION NO. 125 OF 2021 BETWEEN THE GOVERNING BODY OF THE COLLEGE OF BUSINESS EDUCATION...... APPLICANT VERSUS BITON CARSON MWENISONGOLE.......... RESPONDENT AND REVISION NO. 130 OF 202& BETWEEN BITON CARSON MWENISONGOLE APPLICANT VERSUS THE GOVERNING BODY OF THE( ■GE OF BUSINESS EDUCATION...../............................. RESPONDENT (Arising from Labour Dispute Ng. CMA/DSM/ILA/1020/18 from the Commission for Mediation and Arbitration ofDar es Salaam Zone - Ilala) RULING 25th April 2022 & 3^2022 K. T. R, MTEULE, J, This RufS|c’oncerns consolidated Revision Applications No. 125 and S.R arising from the decision of Hon. MASSAY, A., the Arbitrator, which was delivered on 4th day of September, 2020 in Labour Dispute No. CMA/DSM/ILALA/1020/18 in the Commission for Mediation and Arbitration (CMA) at Dar Es Salaam Ilala. The dispute was referred to the Commission by the employee BITON CARSON i MWENISONGOLE against the employer, THE GOVERNING BODY OF THE COLLEGE OF BUSINESS EDUCATION (Employer) following the mployer's decision to terminate the employee's employment. A brief historical background of the dispute is ^^^ct^d|fr^ifl applicants' affidavit, the respondent's counter affidavit/^the parties' submissions and the CMA record as stated hereunder. Mr. MWENISONGOLE was an Assistant Tutor oMhe^Applicant who was terminated on 08th May, 2015 foj^arpalleged misconduct of committing negligence which resulted .into a loss to their employer to the tune of TZS 16,750,000?&0^Tollowing the termination, Mr. MWENISONGOLE referredWthe dispute to the Commission for Mediation and Arbitration which delivered the award in his favor, on the reasolMHShtheprocedure for termination was not adhered to. The coiji^^jon ordered the employer to pay him 12 months salaries ^compensation. The total sum awarded was TZS 34,680,000.00. Both parties were not satisfied with the CMA's Award consequently, they both filed revision applications in this Court. Mr. MWENISONGOLE filed Revision No. 125 of 2021 while the employer THE GOVERNING BODY OF THE COLLEGE OF BUSINESS 2 EDUCATION, filed Revision No. 130 of 2021. For convenience purposes, the two Revision Applications were consolidated by this court following parties’ prayer. On 25th April, 2022 the Court raised a point of law suo moto and called upon the parties to address it as to whether it is Glpt(ie| wjtfi jurisdiction to entertain the matter since the respondent is a government entity. This point of jurisdiction together with the point of law relating to time limitation which was/^sei^by the respondent through a Preliminary Objection on 03^i^chj 2022 were argued all together by a way of written submissions; Ms. Adelaida Ernest, State Attorney appeared and argued w^behalf of the employer while Mr. Stephan Mboje, Advo.cate^appeared and argued on behalf of the employee. I thanl^ptn parties for complying with the Court's scheduIe/FnjHnalhe submissions and the industrious work done with researcg^^the submissions are valued, and they will be taken on l^bard Jh considering the two points of law raised in these consolidated revision applications. Starting with the jurisdiction, Ms. Adelaide Ernest submitted that the applicant is fully government owned college operating under the Ministry Responsible for commerce which was established by the 3 College of Business Education Act Cap 315 R.E 2002 and among its principal duties is to provide training on business related profession. She submitted that in this regard, the Applicant is a public service institution and the respondent being its employee, means that he was a public servant and was bound by Sectiopl32 A of the Public Service Act, No. 48 of 2016 w^ichwtemands a public servant to exhaust all remedies under the Act, before seeking redress provided under labour laws. Supportirj^^^ubmission, she cited the case of Tanzania Posts Corporatii^versus Dominic A. Kalangi, Civil Appeal No. 12 o.f^022^^irt of Appeal of Tanzania, (unreported) quoting the follo^^p/ds:- "n the premises, it^zan hardly be gainsaid that, having been established by^rifAct of Parliament and being wholly or substanfi^^^wned by the Government, the Tanzania Posts Corporation is a public service institution...." 4 Aw Basing .on Section 32A, Ms Adelaida is of the view that CMA is precluded from entertaining labour disputes involving public servants. She stated that the Court of Appeal of Tanzania has a settled position that the question of jurisdiction is to be detected at the time of filing the dispute in Court or at CMA as was held in the case of Farida F. 4 Mbarak and Another v. Domina Kagaruki, Civil Reference No. 145 of 2019, Court of Appeal of Tanzania, unreported. Ms. Adelaide averred that when the respondent filed his labour dispute in September 2018, the law on how to deal with labour dispute involving public servants was already amended^sip"ce 1.8ffl November 2016 with the introduction of Section 32A orthe Public Service Act, Cap 298 R.E 2019. Insisting heiwosition, she cited several cases including the case of Ismail Rashid v. Mariam Msati, Civil Appeal No. 75 of 2015 (unreporfed^ Regarding time limitation, Ms, Adelaide submitted that the CMA award was delivered on 13th February, 2021 and both parties were served with a copy^xof'^t^e^award on the same day. She further submitted that b^fifr^g his application No 130 of 2021 on 06th April 2021, th^pr^hnt contravened Section 91 (1) of the Employment and Lao^yp Relations Act, Cap 366 R.E 2019 under which the appl^atKin ought to have been filed on 1st April, 2021. In her view, there was a delay of 5 days, and on such basis the respondent's assertion that he filed the matter timely vide electronic filing system without any printout to prove the same lacks merits. Bolstering her position, she cited the case of Geita Gold Mining Limited v. 5 Christian Christopher, Labour Revision No. 90 of 2020, at Mwanza, (unreported). Ms. Adelaide argued that the only remedy for time barred application is dismissal as was held in the case of Barclays Bank Tanzania Limited v. Phylisia Hussein Nlcheni, Civil Appeal No. JSlo|20 In reply Mr. Stephan Mboje submitted that even if the Colrt has to deal with this preliminary objection for the second time regarding the jurisdiction of the Commission for Mediation^and Arbitration, he insisted that the cause of action^roge on 8th May, 2015 as rightly narrated by the opponent Coi^isel atjpage 1 of her submission and during that time when theffespondent was terminated, the new law, the Written Law(Amendments Act) No. 3 of 2016 was not in force as that lawfstarted to operate on 18th November 2016. Mr. Stephan Mboje argued that since the cause of action arose before ^e newjamendment of Section 32A, therefore the respondent won't be affected by the said amendments as he was covered by Section 31 (1) of the Public Service Act, R.E 2019 which directs servant in the Executive Agencies and Government Institution to be governed by provision of laws establishing the respective executive agency or institution. Supporting his argument, he cited the case of The Board 6 of Trustees of the Republic Service Pension Fund (PSPF) v. Jalia Mayanja, Labour Div., Revision No. 248 of 20017. He added that applying new law collides with the principle of retrospectivity, as was held in the case of Joseph Khenan v. Nkasi District Council, Civil Appeal No. 126 of 2019, at Mbeya, (unreported). On second point of law relating to time limit Mr.^tephan Mboje submitted that the respondent filed his Revision Application No. 130 of 2021 on time as per the new requiremer^of^t^e law and that the applicant has complied with all the requirement of the law that the application must be filed online and admitted by the Registrar. To back up his stand he referred^this Court in the case of GG Construction Ltd v-^ebrge Johansen T/I Magefa Timber Supply, Misc. Applicative. 33 of 2020, High Court of Tanzania, at Shinyang^dnrepOTfed). It was furtfaer argued by Mr. Stephan Mboje that according to the submission of Ms. Adelaide at paragraph 3 of page 7 employee ought to have filed his Revision No. 130 of 2021 on or before 1st April 2021. He reiterated that he filed his revision on 31st March 2021 before the midnight of the same date as per Rule 21 (1) of the Judicature and Application of Laws (Electronic Filing) Rules, GN. No. 148 7 of 2018. From the submissions and CMA record, this Court is called upon to determine the following issues:- i) Whether the Commission for Mediation and Arbitration had jurisdiction to entertain the matter? /I \ ® ii) Whether Revision Applications No. 130 of 2021 wa^filed out of time? W In dealing with the first point of law conc^^g,the jurisdiction, the applicant stated that applicant stated that CMA no^juri^gict^n for had n^juri^idibn CMA had two reason, for two its one; its reason, one; principal duty is to provide tr^^^J^ducation) and second, is that the dispute was filed afresfi in 2018 and for that reason he is of the view that the respongent^is covered by Section 32A of the Public Service Act, GN.|N^48 of 2016. Disputing, the Respondent argued that sinc^^e^pute arose in 2015, then Section 32A of the Public Service ActzG.N No. 48 of 2016 does not apply in this matter. Basing on disputed provision this Court finds it worth to reproduce same, Section 32A of the Public Service Act, GN. No. 48 of 2016 which provides:- 32A, "A public servant shall, prior to seeking remedies provided for in labour laws, exhaust all remedies as provided for under 8 this Act/7 From the above authority, it is well-known that the disputed provision came into operation on 18th November, 2016. The record available reveal that the termination dispute arose on 08th May, 2015 as per termination notice, therefore recollection of Labour Dj.sp.tftl N<f CMA/DSM/ILA/R, 246/15 which attracted filing of fresh application in 2018 does not remove or change the notion tl^a^respondent was terminated in 2015. Since the issue of filing application ^^jinder procedural and not substantive right, the Court is certain rules of construction, then I am of the view that/does not Section 32A of the Public Service Act, GN. No. 48 of 20^^tract the operation of retrospective effect principle as the^gn|e impose new obligation or duty. The same position ras^^cussed in the case of Joseph Khenani v. Nkasi DistricC^feuncil, Civil Appeal No. 126 of 2019, at Mbeya, (unreported) by citing the case of Yew Bon Tew v, Kendaran Bas Mara (1983) 1 AC 553 as was cited by the respondent's Counsel. In this respect, the dispute which arose in 2015 cannot be covered by a law enacted in 2016. 9 Therefore, basing on the foregoing, it is established principle that the determination of time starts when the dispute arose and not when the matter was filed at the CMA or in this Court. In such circumstances I have to say that the respondent is not covered by Section 32A of the Public Service Act GN. No. 48 of 2016. In addressing the second issue concerning timeliness^of Revision Application No. 130 of 2021 the relevant provisions Section 91 (1) of the Employment and Labour Relation Act, papl$66 R.E 2019 which directs that any application for revision® usf be filed in this Court within 42 days from the date of the service of the impugned decision to the Applicant. The record available shows that the intended ruling sought to revised was. issued on 19th February, 2016 and the applicant in RevisiomAp ph cation No. 130 of 2021 was served with the said decision^onWesame date of 19th February, 2016. The Applicant filed R^v^g Application No. 130 of 2021 on 06th April, 2021 while mejsamb was supposed to be filed on 31st March, 2021 according to the rule cited above. In the submission, the applicant stated that he filed the application timely through on 31st March, 2021. In his view, counting starts from the date when the matter was entered in the system. However, the io report from JSDS was not produced and at the same time, the record of Revision Application No. 130 of 2021 is endorsed to shows that the date of filing is 6th April, 2021 and not 31st March, 2021 as claimed by the Applicant. The applicant challenged this assertion for missing evidence from JSDS to prove it. The applicant ought to have ptoved that the application was registered in the JSDS on JL^March,|2021 and not on 06th April as endorsed in the application. In absence of this prove, the court will rely on the record of the application which is available in the court file. By the face onthat/record, it is apparent that the application was filed o^dth-Apgfe^021, which is 6 days after the due date, therefore it wasJodged out of time. The applicant therefore ought to have o^med the leave of the court to allow the application out of tiifte^Sifice it is not disputed that the application was filed withpufeajpave of the court, then it cannot be sustained as it is timesbarred^ Guided Jay the jurisprudence in Barclays Bank Tanzania Limited v. Phylisia Hussein Mcheni cited supra, the available remedy for a matter filed out of time without the leave of the court is to strike it out. In the upshot, it is the finding of this Court that since the dispute ii arose before the amendment of the Public Service Act in November 2016, the CMA had jurisdiction. On the other hand, I uphold the Preliminary objection in Revision Application No. 130 of 2021 and dismiss the said Application for being time barred. I further order that Revision Application No. 125 shall proceed to be determined og merits. It is so ordered. Dated at Dar es Salaam this 11th day of May, 202: KATARINA REVOC 12