CIVIL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: SEHEL, 3.A.. KIHWELO. J.A., And MASOUD. J.A.l CIVIL APPEAL NO, 344 OF 2021 THERESIA HERMAN KATONDO......................... ........... .... ..... ...APPELLANT VERSUS GREENLIGHT HOTEL ....... .... ............ .............. .....RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Maruma. J.1 dated the 28th day of June 2021 in Labour Revision No. 934 of 2019 JUDGMENT OF THE COURT 16th August & 10th September, 2024 KIHWELO. J.A.: The appellant, Theresia Herman Katondo, seeks to challenge the decision of the High Court of Tanzania, Labour Division at Dar es Salaam (Maruma, J.) dated 28th June, 2021 which reversed the decision of the Commission for Mediation and Arbitration (CMA) in Labour Dispute No. CMA/DSM/ILA/R. 1053/18/422. In its ruling dated 2nd May,2019 the CMA declined to determine and rule on the point of preliminary objection on the competence of the Complaint before the CMA. i The factual setting of this matter as unveiled by the record of appeal may be recapitulated as follows. The appellant was an employee of the respondent up to 11th September, 2018 when her services were terminated on account of gross dishonesty in which she was found to have stolen her employer's money on 4th August, 2018. On 20th September, 2018, the appellant was served with a letter terminating her employment. Aggrieved by that termination, the appellant lodged a complaint before the CMA. She complained that she was unfairly terminated since there was no valid reasons for her termination and that the procedures applied in her termination were neither in conformity with labour laws nor principles of natural justice. She thus, prayed that her termination be declared unfair. She also prayed to be paid salary for the 19 days worked, severance allowance, payment in lieu of notice, overtime and compensation for unfair termination on top of all other terminal benefits. Ahead of hearing of the Complaint, and after the mediation was marked not settled, the respondent through the services of Keregero Keregero of Keregero & Company Advocates raised a point of preliminary of objection notice of which was lodged at the CMA to the effect that, the application was incompetent since it was time barred. Having heard the parties on merit, the CMA decided that, the point of preliminary objection was to be determined later during the determination of the main complaint. Suffice to say that, the respondent not delighted by the decision of the CMA, challenged that decision before the High Court by way of revision. The respondent's counsel challenged the findings of the CMA that the objection on point of law would be determined along with the main complaint as if the point of law was also a factual issue while it was a purely point of law that did not require to lead any evidence. The learned counsel further challenged the CMA decision on the grounds that it was erroneous and wrong to disregard the point of preliminary objection which determined the jurisdiction of the CMA in the first place. Upon hearing the parties on merit, the High Court (Maruma, J.) in a sigh of relief to the respondent, it granted the application. The ruling and proceedings of the CMA were revised and set aside. The High Court decision precipitated the instant appeal in which the appellant has preferred one ground of appeal that, the High Court erred in considering that the effective date of termination is the one when the letter of termination was issued instead of the date when the letter was received by the appellant. 3 Like in the High Court and at the CMA, the appellant was represented by Mr. Thomas Chubwa, teamed counsel, while the respondent enjoyed the services of Mr. Keregero Keregero, learned counsel. Arguing in support of the appeal, Mr. Chubwa was brief. He faulted the High Court Judge for finding that the complaint before the CMA was time barred. According to him, the termination letter was written on 11th September, 2018. While the same was served on the appellant on 20th September, 2018, the complaint was lodged at the CMA on 15th October, 2018 which is merely 27 days from the date when the termination letter was served on the appellant well within the 30 days required under Rule 10 (1) of the Labour Institutions (Mediation and Arbitration) Rules, 2007, Government Notice No. 64 of 2007 (the Rules). He took the view that, the appellant lodged the complaint within the time prescribed by law and therefore, the High Court was erroneous to compute time from the date when the termination letter was written. On our prompting regarding the proper interpretation of Rule 10 (1) of the Rules, Mr. Chubwa insistently argued that, although the law requires to reckon the time from the date when the termination letter was written, practically time has to be reckoned from when the employee becomes aware 4 of the termination and not otherwise. For in his view, it would be unfair and not practical to condemn the employee for the time when the termination letter was yet to be served on him. Admittedly, the learned counsel argued that, he was not aware of any decision of this Court which has interpreted Rule 10 (1) of the Rules. Mr. Chubwa thus, was of the view that, the instant appeal has merit and therefore, it should be allowed. Conversely, Mr. Keregero who was very brief and to the point had an opposing view. For him, the High Court was right in reversing the CMA decision since the complaint before it was time barred. He contended further that, the law is very clear and settled, while citing Rule 10 (1) of the Rules, in that, time starts to run from the date of the termination letter and not the date on which the employee becomes aware of the termination as the counsel for the appellant sought the Court to believe. The learned counsel further argued that, in the event that the employee is late to lodge the complaint as required under Rule 10 of the Rules on account of being late to become aware, Rule 29 of the Rules comes into play in that the employee has available option to apply for condonation. He faulted the appellant's counsel for not resorting to rule 29 of the Rules. On the contrary, he came up with his own ingenuity of treating the date of becoming aware as the 5 effective date of termination contrary to the dictates of the law. All in all, he urged us to dismiss the instant appeal. In rejoinder submission, Mr. Chubwa had nothing useful to add apart from reiterating his earlier submission. At the outset, it is convenient to recapitulate that, from the rival submissions by the learned trained minds, the vexing question that requires our deliberation is whether the appellant's claim at the CMA was not time barred and therefore, the CMA had no jurisdiction to arbitrate it. In an attempt to answer the above question, and for the sake of precision, we should first appreciate what the provisions of Rule 10 (1) of the Rules, which governs time limit for referring disputes to the CMA, provides: n10-(l) Disputes about the fairness o f an employee's termination o f employment must be referred to the Commission within thirty days from the date of termination or the date that the empioyermade a final decision to terminate or uphold the decision to terminate,"[Emphasis added] Clearly, the above provision is unambiguous in that, an employee seeking to challenge the fairness of termination of employment is duty bound to refer the dispute to the CMA within thirty days from the date of the impugned decision or any other date that the employer makes final decision 6 to terminate the employee or uphold the decision to terminate the employer. Crucially, it is to be noted that, the learned trained minds locked horns over the point of reckoning of the thirty days limitation period. Whereas, Mr. Chubwa sought to convince us that the period of limitation must be reckoned from 20th September, 2018 when the appellant received the termination letter as the date of termination, Mr. Keregero contended that, the period of limitation has to be reckoned from 11th September, 2018 when the termination letter was written. We are settled in our mind without any shade of doubt that the limitation period for referring a dispute for mediation under section 86 (1) of the Employment and Labour Relations Act, Cap 366 is thirty days reckoning from the date of the termination letter in terms of Rule 10 (1) of the Rules, and in the case before us, it is 11th September, 2018. Admittedly, the appellant appears to have acknowledged receipt of the termination letter on 20th September, 2018 although the termination letter was dated on 11th September, 2018. Thus, when the complaint was lodged on 15th October, 2018, it was already time barred and the CMA had no jurisdiction. It bears reaffirming that, the only available remedy for someone who did not refer the dispute for mediation within the time prescribed by law is 7 to apply for condonation under the provision of Rule 11 of the Rules. The said provision governs disputes referred outside the prescribed time and Rule 29 of the Rules prescribes on how the application for condonation shall be made. We therefore find considerable merit in Mr. Keregero's submission that, the complaint before the CMA was time barred and therefore, the CMA acted without jurisdiction. The only residual jurisdiction that the CMA was seized with, was to strike it out. Entertaining the complaint as the CMA did and without there being an application for condonation was erroneous and wrong and therefore the High Court acted correctly to revise and set aside the proceedings and ruling of the CMA. Luckily, the situation obtaining in the instant appeal is not novel. In the case of Barclays Bank (T) Ltd v. Jacob Muro (Civil Appeal No. 357 of 2019) [2020] TZCA 1875 (26 November 2020; TANZLII), faced with analogous situation, we took a similar view that where the CMA acted without jurisdiction as the referral was referred out of the time prescribed under Rule 10 (1) of the Rules, both the proceedings and the resultant award were nullity. It is not insignificant to state that, we heard Mr. Chubwa's submission that, it would be unfair and not practical to condemn the employee for the time when the termination letter was yet to be served on him, but we find this argument to be decidedly thin. In realization of the scenario mentioned 8 by Mr. Chubwa the law came up with an alternative remedy that, is to apply for condonation under Rule 11 and Rule 29 of the Rules as clearly explained above. But quite unfortunate and for an obscure cause, the appellant did not opt to take this route. Rather, she elected to remain silent and referred the complaint to the CAM out of time. In our view, the High Court Judge was undeniably right to find that the complaint before the CMA was time barred. We must express that, we are quite satisfied, like the High Court Judge, and we see no reason to interfere with that decision. We should interpose here and observe that Mr. Keregero prayed that the appellant should be condemned to costs. However, he was unable to advance any convincing arguments why the appellant should not be spared costs this being a labour matter. We are quite aware that, the position of the law is settled and clear, a High Court Judge has discretionary powers under rule 51 (2) of the Labour Court Rules, to award costs in labour dispute against a party initiating proceedings where such proceedings appear to be frivolous and/or vexatious. There is, in this regard, a considerable body of case law on this. For instance, in the case of Stanbic Bank (T) Limited v. Iddi Halfani (Civil Appeal No. 139 of 2021) [2023] TZCA 17496 (11 August 2023; TANZLII) and Dominic Ishengoma v. Managing Director, Geita 9 Gold Mining Limited (Civil Appeal No. 541 of 2020) [2024] TZCA 554 (12 July 2024; TANZLII) in which we discussed this at considerable length and came to the conclusions that, it is not always that labour related matters do not attract costs. Where in the opinion of the Judge the proceedings appear to be frivolous and/or vexatious, the applicant is liable to be condemned to costs. Now, the next question that follows from the above is, whether the proceedings in the appeal before us appears to be frivolous and/or vexatious to warrant any award of costs. We are settled that, the proceedings both before the CMA where the appellant sought to challenge the termination as well as the instant appeal before this Court are not frivolous and/or vexatious so to speak and the reason is not far-fetched. The appellant felt that justice was not rendered and in further quest for justice, she lodged the complaint before the CMA and upon the High Court revising the CMA's decision, she felt the urge to pursue her legal rights and lodged the instant appeal. The appellant's actions are in the circumstances not unjustifiable so as to be termed frivolous and/or vexatious. It is not hugely surprising to see that the appellant has come this far in quest for justice. With respect, we are unable to agree with Mr. Keregero that the proceedings have all along being frivolous and/or vexatious. 10 For the reasons discussed, we conclude that the appeal has no merit. We are enjoined to dismiss it. In fairness to the parties and equity, we make no order as to costs bearing in mind the reasons stated above. DATED at DAR ES SALAAM this 5th day of September, 2024. B. M. A. SEHEL JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 10th day of September, 2024 in the presence of Mr. Thomas Chubwa, learned counsel for the Appellant and Mr. Keregero Keregero, learned counsel for the Respondent is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL li