registered trustees of the anglican church of tanzania vs reverend canon dr mecka okoth ogunde 2022 tzhc 15431 27 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA LABOUR REVISION NO. 14 OF 2022 (Originating from Labour Dispute No. CMA/DOM/84/2022 in the Commission for Mediation and Arbitration at Dodoma) THE REGISTERED TRUSTEES OF THE ANGLICAN CHURCH OF TANZANIA......................................... APPLICANT VERSUS REVEREND CANON DR. MECKA OKOTH OGUNDE......................................................................................RESPONDENT RULING 19/12/2022 & 27/12/2022 MASAJU, J. This is an application for revision of the ruling given by the Commission for Mediation and Arbitration (CMA) at Dodoma, the trial tribunal, in Labour Dispute No. CMA/DOM/84/2022 between the Applicant, Registered Trustees of the Anglican Church of Tanzania and the Respondent, Reverend Canon Dr. Mecka Okoth Ogunde. The Applicant by way of Chamber Summons made under Rule 24(1), 24(2), (a), (b), (c), (d), (e), (f), 24(3) (a), (b), (c), (d), 28(1), (c), (d), (e) of the Labour Court Rules GN No. 106 of 2007, section 91(l)(a), and (b) 1 and section 94(l)(b)(i) of the Employment and Labour Relations Act [Cap 366, RE 2019] seeks for orders of the Court, thus; i. This Honorable Court be pleased to call, examine for the purpose of satisfying itself as to the correctness, legality or propriety of the proceedings and orders made therein, revise and set aside the Ruling issued by the Commission for Mediation and Arbitration at Dodoma on 4th October, 2022 in Labour Dispute No. CMA/DOM/84/2022 Before Hon. MATALIS R. Mediator. ii. That, any other relief (s) that the Honorable Court may deem fit and just to grant. The said Chamber Summons Application is supported by the Affidavit sworn by RT. Rev. Dr. Given Gaula, the Principal Officer of the Applicant. In the said Affidavit, the Applicant depones on the background and the reasons for the Application in paragraphs 12, 17 and 18. The Respondent contests the Application hence the Counter Affidavit sworn by himself to that effect. The Applicant also filed a Reply to the Counter Affidavit. The application has not been accompanied by any arbitration award, if any, by the trial tribunal whilst the enabling provisions cited on the Chamber Summons are essentially for revision of arbitration award. 2 In brief, the Applicant challenges the decision of the Commission for Mediation and Arbitration which has condoned the Respondents delay in filing a labour dispute against it. When the Application was heard in the Court on the 19th day of December, 2022 the Applicant was represented by Mr. Mselingwa Sosteness and Mr. Denis Malamba, the learned counsels whilst Mr. Wilson Ogunde and Mr. Felician Daniel, the learned counsels represented the Respondent. The parties adopted their respective pleadings, namely; the Affidavit, Counter Affidavit and Reply to the Counter Affidavit to form part of their submissions in support of, and against the application in the Court. Their submissions were an amplification and solidification of what they stated in their pleadings. Given the fact that there is a pending labour dispute between the parties, the Court shall not reproduce here what were submitted by the parties for, and against the application lest the parties hereof are prejudiced as regards their dispute before the trial tribunal. So, the decision hereof shall be purely on matters of law as regards the impugned condonation. As per section 2 of the Employment and Labour Relations Act [Cap 366 RE 2019] the Commission for Mediation and Arbitration, the trial tribunal, was seized with jurisdiction despite the fact that the dispute 3 involves a religious institution because such institutions are not excluded in the named section 2. The Employment contract between the parties as so annexed in the Applicant's Affidavit (annexure ACT-1) is express on Articles 2, 24 and 26 that it is subject to, and governed by labour laws of Tanzania. Under Rule 31 of the Labour Institutions (Mediation and Arbitration) GN No. 64 of 2007 the Commission for Mediation and Arbitration is given power to condone a delay in filing a timely labour dispute application. The trial tribunal so rightly reasoned that the attempts by the parties to settle the dispute amicably constitute a good cause for the grant of condonation as it so granted. From the record of proceedings at the Commission for Mediation and Arbitration, the trial tribunal, the Respondent pleaded in paragraphs 19, 25 and 27 (b) of his Affidavit and testified that there were ongoing discussions (negotiations) between them with the aim to settle the matter amicably. The Applicant in paragraph 5 of the Affidavit alludes to, and acknowledges the said extensive discussion (negotiations). Article 21 of the parties' Employment Contract mandatorily provides for amicable settlement of the dispute prior to untimely termination of the employment contract. Taking into consideration all that, the Court is satisfied that the trial tribunal was justified in granting condonation for 4 the Respondent's delay. Indeed, since the Employment Contract between the parties is subject to, and governed by the labour laws of Tanzania which includes, inter alia, condonation of the timeline for filing labour dispute before the trial tribunal, the Applicant's bid to deny the Respondent the right to be heard in accordance with the labour laws as per their own Employment Contract lacks merit. Moreover, the enabling provisions of this application as cited by the Applicant in this chamber summons application are redundant since the same concerns revision of arbitration award/arbitrator's award while the instant revision originates from the ruling of mediator which has allowed the dispute between parties to be filed out of the prescribed time. Meaning, the main dispute has not yet been heard on merits and accordingly determined to its finality. The mediator's ruling subject to revision herein is therefore an interlocutory or incidental decision or order which is not revisable pursuant to Rule 50 of the Labour Court Rules, GN No. 106 of 2007 which reads thus; "No appeal, review or revision shall He on interlocutory or incidental decisions or orders, unless such decision has the effect of finally determining the dispute". So far, there is no any arbitration award by the trial tribunal calling for its 5 revision at this stage. Thus, in the first place this application should not have been filed in the Court. Needless, section 3(f) of the Employment and Labour Relations Act, [Cap 366 RE 2019] states that the object of the Act itself is to give effect to the provisions of the Constitution of the United Republic of Tanzania, of 1977 in so far as they apply to employment and labour relations and conditions of work. Deducing from the named section 3 (f) as read together with Article 13(1), (3), (6) (a) of the Constitution of the United Republic of Tanzania, 1977 [Cap. 2 RE 2005] it would have not been in the interest of justice for the trial tribunal to dismiss the Respondent's application for condonation of his delay. Lastly, the application is hereby dismissed in its entirety for want of meritious competence. The original record is hereby remitted back to the trial tribunal, the Commission for Mediation and Arbitration at Dodoma, for hearing and determination of the dispute on merits and to its finality except if the parties opt for amicable settlement of the dispute themselves pursuant to Article 21 of their Employment Contract accordingly. The parties shall bear their own costs.