JUDGEMENT ULTIMATE SECURITY V JOSEPH KANDIDUS determination while there is pending appeal

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM LABOUR REVISION APPLICATION NO. 19206 OF 2024 (Arising from the CMA award with reference No. CMA/DSM/KIN/411/2021/51/2022 issued by Hon. Kiangi, N. on 28th June 2024) ULTIMATE SECURITY (T) LTD…………..…………...........................APPLICANT

VERSUS JOSEPH KANDIDUS GOLIAMA ……………….…………………1ST RESPONDENT RUTH ANTONY KAAYA…………………………………………….2ND RESPONDENT

JUDGEMENT OPIYO, J. Ultimate Security (T) Ltd have lodged the present application for revision against the award of Commission for Mediation and Arbitration in respect of Labour Dispute No. CMA/DSM/KIN/606/2020/320. The applicant is seeking revision alleging the following grounds:- i. The trial mediator grossly erred in fact and law by holding that the respondent had valid reason upon which the complaint could be filled out of time. 1 ii. That both the trial mediator and arbitrator erred in law and fact by proceeding with the complaint without considering that there was a pending matter before the Court of Appeal. iii. That, both the trial arbitrator erred in law and fact by holding that the respondents were confirmed to other position without justifiable evidence. iv. That, both the trial arbitrator erred in law and fact by holding that the respondents were underpaid without considering all circumstances. v. That, both the trial arbitrator erred in law and fact by holding that there was a breach of contracts of the respondents. vi. That, both the trial arbitrator erred in law and fact by holding that the respondents were entitled to be paid full payments during suspension. vii. That, both the trial arbitrator erred in law and fact by holding that the respondent’s basic salary was reduced during suspension. viii. Whether the trial arbitrator was legally justified for holding

that reliefs awarded were to accrue monthly till the end of employment. 2 ix. Whether the trial arbitrator was legally justified to calculate respondents’ reliefs based on purported gross earning without considering that the respondents during suspension were being paid based on their basic salary. x. Whether the trial arbitrator was legally justified to issue reliefs without any justification. The brief facts of this application are that; the applicants were employed by the respondent in different positions. Thereafter, they were suspended from work. On such misunderstandings, the applicants filed Labour Dispute with Reference No. CMA/DSM/KIN/319/2021 on 24th August 2021. This dispute was struck out by Hon. Kalinga, C., Mediator on 15/10/2021, following sustenance of the preliminary objection by the applicant (the then respondent) that the application was time barred and that, the respondents (the then applicants) were at liberty to file a matter in a manner required by the law. The decision attracted two distinct reactions from each side. The respondents reacted by filing labour dispute with reference no reference no. CMA/DSM/KIN/411/2021/51/2022 together with application for condonation at the CMA. Condonation was eventually granted on 10/3/2022, Hon. Kalinga, C., Mediator, leading to labour dispute no. CMA/DSM/KIN/411/2021/51/2022 proceeding with 3 determination on merits

to its conclusion on 28/6/2024, Hon. Kiangi, N. Arbitrator, granting the respondents a total of salary arrears from June 2019 to the date of award to the tune of 116,050,000/= and increment by 2,500,000/= per month to his retirement date for first respondent and 88,801,000/= and increment by 2,000,000/= per month to her retirement date for second respondent. Dissatisfaction with the said award resulted to the current application for revision. At the same time, on the other side, the applicant reacted to the mediator’s decision of 15/10/2021 striking out, the former labour dispute no CMA/DSM/KIN/319/2021 by filing revision application against it to the Labour Court as Labour Revision No. 430 of 2021 on the ground that the mediator erred in law and facts by striking out the complaint and by holding that the respondent was at liberty to file a matter in a manner required by the law. This revision met a notice of objection that, it was contrary to rule 50 of Labour Court Rules, GN no 106 of 2007, which prohibit preferring appeal or revision against interlocutory order. It was held in the said revision Application no. 430 of 2021 that, the order was indeed interlocutory, thus not subject of revision, Hon. Mganga, J. on 17/6/2022. This decision attracted further dissatisfaction from the 4 applicants who preferred an appeal to the Court of Appeal, Civil Appeal no. 374 of 2022 which is

still pending to date. By way of written submission, the application was disposed of, Mr. Elipidius Philemon, Learned Counsel represented applicant whereas Mr. Elisaria Mosha, Advocates represented respondent. In challenging the CMA decision, applicant advanced ten grounds of revision as above mentioned. Starting with the first ground, Mr. Philemon submitted that the arbitrator erred in law by allowing the respondent to file Labour Dispute No. CMA/DSM/KIN/411/2021/51/2022 with an application for condonation while the issue of time limitation was already addressed in the Labour Dispute No. CMA/DSM/KIN/319/2021. He stated that, once CMA had ruled that, the matter, labour dispute No. CMA/DSM/KIN/319/2021 was time barred, then it was functus officio to proceed and determine the issue of time limitation (condonation) regarding the same matter, between the same parties in the subsequent labour dispute. He mase reference to the case of Tanzania Breweries Limited versus Edson Muganyizi Barongo and 7 others, Misc. Application no. 79 of 2014 to fortify his argument where at page 14 the court held that:- 5 “ Equally in the instant application, the applicant cannot convince the court through the manner they had opted to wit by filing an application for extension of time in which to refile the dismissed application. The court cannot resurrect a matter or an application it ‘killed’,

dismissed under the circumstances of being time barred and without the leave of the court to be filed. It needs another power from another powerful forum or Court to resurrect the dismissed application…” He insisted that, even if respondent would wish to submit that, the former labour dispute (Labour Dispute No. CMA/DSM/KIN/319/2021), was not after all dismissed, rather struck out, but use of those mere words (struck out) do not open the room for the applicant to re-open an already time barred dispute for rehearing by filing application for extension of time/condonation before the same CMA which was subsequently granted allowing subsequent labour dispute no CMA/DSM/KIN/411/2021/51/2022 to proceed out of time. In supporting his stand, he cited the case of MM. Worldwide Trading Company Limited and 2 others v. National Bank of Commerce Limited, Civil Appeal No. 258 of 2017 the Court of Appeal at page 10 states as follows:- “Although we are not concerned with the propriety of the order striking out the former suit which features in the respondent's argument, that argument falls in the cace of Ngoni- Matengo Co- operative Marketing Union Limited v. Ali Mohamed Osman 6 [1959] E.A 577. That decision is an authority for the proposition that it is the substance of the matter that must be looked at rather than the words used. It is clear to us that irrespective of the words used, the

final order amounted to a conclusive determination by the trial court disposing of the former suit for being time barred. In our view, it was not open for the respondent to institute a fresh suit as it were, simply because the trial court struck out the former suit rather than dismissing it as mandated by section 3 (1) of the Act.” Therefore, since the issue of time barred had been finally and conclusively determined, the labour dispute No CMA/DSM/KIN/411/2021/51/2022 became res judicata. That being said the CMA and no jurisdiction to proceeded with the matter initiated with the application for extension of time while the issue of time limitation was already determined. Thus, the CMA award should be questioned and a set aside. On the second issue on Weather, the arbitrator was legally justified to proceed with the complaint while there was pending matter before the Court of Appeal he submitted that, it is a trite law that, once there is a matter at the higher court, the lower court cannot proceed and determine the case on the same substance. The rationale is that, the decision of the higher court prevails over the decision of the lower courts. He continued to submit that, it is not in dispute that, when CMA issued a ruling to a 7 Labour Dispute No. CMA/DSM/KIN/319/2021, the applicant file the revision to the High Court no 430 of 2021 challenging the said ruling and upon the

High Court issuing a decision in that revision the same was further challenged to the Court of Appeal in civil Appeal No. 374 of 2022, which is still pending there. Therefore, since what is at the court of appeal has correlation with what was claimed in labour dispute No. 2022, then CMA was precluded from proceeding to determine that dispute, it follows therefore that their determination ought to be struck out. Replying to the first and second grounds of revision, Mr. Mosha submitted that, the current application is filed against Labour Dispute No. CMA/DSM/KIN/411/2021/51/2022 and not Labour Dispute No. CMA/DSM/KIN/319/2021 which was revised in labour Revision No. 430 of 2021. Therefore, since in the current revision application there is nowhere this court is called upon to revise labour Dispute No. CMA/DSM/KIN/319/2021, the same justify the fact that two labour disputes are two distinct claims and dispute. Therefore, since the applicant had already exercise his right in Labour Dispute No. CMA/DSM/KIN/319/2021 which was revised in Revision No.430 of 2021 and had filed Civil Appeal No.374 of 2022 pending before the Court of Appeal, the applicant is not only estopped from raising the same issue 8 here, but must stop to abuse court process by asking the same Court to revise the mediator’s decision in regard to labour reference No. CMA/DSM/KIN/319/2021 again. In rejoinder to the

1st ground on whether the trial Arbitrator was legally justified to hold that the respondents had valid reasons to file the Complaint out of time, Mr. Philemon challenged respondent’s contention that the two disputes are different as they concern different issues, by submitting that, the said disputes concerns the same subject matter and they are between same parties, and the same issues were already raised in labour revision application No. 430 of 2021, hence, this Court is functus officio to determine them. Further that, the raised argument by the respondent in regard to the first issue is misconceived. He insisted that, it was not proper for the respondent to file a labour dispute CMA/DSM/KIN/411/2021/51/2022 with an application for Condonation while the issue of time limitation was already determined in the Labour Dispute CMA/DSM/KIN/319/2022 and the dispute found to be time barred. He further argued that, the respondent’s argument regarding differences is seriously improper especially because the issue of striking former labour dispute for being 9 time barred was part of what was referred at the High Court in respect of revision Application No. 430 of 2021 where the issue was why the arbitrator struck out the matter/dispute instead of dismissing it after finding that the dispute was time barred. In regard to the second issue on whether the trial Arbitrator was

legally justified to proceed with the Complaint while there was a pending matter before the Court of Appeal. He rejoined by stating that, the respondent’s submission that this Court is not clothed with the CMA records of proceeding with regard to Labour Dispute No. CMA/DSM/KIN/319/2021 is misconception. He continued that, the respondent’s argument that, what is at the Court of Appeal has no correlation with labour dispute No. CMA/DSM/KIN/411/2021/2022 for which revision is before this court is misconceived. His reasons for such argument is that, the respondents filed the labour dispute CMA/DSM/KIN/411/2021/2022 after the CMA struck out the labour dispute CMA/DSM/KIN/319/2021, therefore the latter dispute is a reaction to the decision in the former labour dispute as even envisaged in 2nd paragraph of the respondents submissions. Again, it is the striking out of CMA/DSM/KIN/319/2021 that was put forward as technical delay, as one of the grounds in granting condonation in filing 10 the labour dispute no CMA/DSM/KIN/411/2021/51/2022. This makes the two disputes related, in his view. Parties’ submissions for the two grounds have been painstakingly considered. This court prudently finds that, the two grounds are better disposed first before going to the rest of the grounds for importance they hold in the entire application. Their determination will give a map on whether this court is

clothed with mandate to proceed with determination of the remaining grounds that touches on the merits of the application. That is, the two grounds in a way touches on the jurisdiction of this court to determine the revision on merits. Their prior determination is therefore, important before determination of the revision on merits touching on the propriety of the award. I would wish to dispose of the first two grounds jointly for the interrelation between them. The applicant claims the principle of functus officio would have been applied in this matter to avoid redetermination of the same matter twice by the same forum. In establishing as to whether the principle of functus officio may be applied in this matter, I find worth to consider records of both labour dispute, particularly CMA Form No.1, the former one which initiated Labour Dispute CMA/DSM/KIN/319/2021 shows claim of salary 11 areas from 2019 and the later one which initiated Labour Dispute No. CMA/DSM/KIN/411/2021/51/2022 shows that the applicants claiming all salary areas. Further to that, it is not disputed that the basis of claim in both is the allegation that the applicants were confirmed to new position in 2019 entitling them to a raised pay they claim in both disputes. Having such similarities regarding claims, this Court takes caution itself, that, the issues were the same, not only in the labour disputes

before CMA, but also also at revisional level in labour revision no 430 of 2021. Therefore. the MM. Worldwide’s Case(supra) has relevancy in this application as contested by the applicant. The principle of not addressing matters/issue already addressed by the same judge/fellow decision maker was also addressed in the case of John Barnaba Machera v. North Mara Gold Mine Limited, Civil Appeal No. 204 of 2019 in this case it was held that; “...ii) the predecessor Judge ordered the matter to proceed to the next stage where the First Pre-Trial Conference was conducted and the Mediation process took place unsuccessfully, this was a misdirection of the successor Judge who sat as an appellate Court over the decision of his fellow Judge of the same court which was, with respect, irregular. In a nutshell, the successor Judge was functus officio in determining what had been already decided by the predecessor judge.” 12 The above legal position persuades this court to agree with applicant’s counsel that the CMA was not legally justifiable in proceeding with determination of CMA/DSM/KIN/411/2021/51/2022 right from condonation stage, while the same was already addressed by the revisional Court in labour revision no 430 of 2021 revising Labour Dispute No. CMA/DSM/KIN/319/2021, dissatisfaction with which the appeal is still pending before the court of appeal to date. On that legal basis,

since parties have an appeal to the Court of Appeal, they ought to have waited until its determination and not to re-open the matter to run parallel with the matter pending before the Court of Appeal. Obviously, whatever determination by the court of appeal in Civil Appeal No 374 of 2022 has a direct bearing to any application before the CMA regarding this dispute between these parties. Given the interrelation between the two disputes, it was wrong for the CMA to proceed with hearing on merits the Labour dispute CMA/DSM/KIN/411/2021/51/2022 while there was and still there is a pending appeal to the Court of Appeal arising from the same parties and being a continuation of dissatisfaction with decision in labour revision no. 430/2021 originating from labour dispute no CMA/DSM/KIN/319/2021 which was originally struck out. 13 For that reason, the award emanated from Labour Dispute No. CMA/DSM/KIN/411/2021/51/2022 and proceedings thereto are hereby nullified for being made while there was a pending matter related to the same dispute in the higher court, Court of Appeal for that matter, leading to irregularity in their procurement. Being a labour matter, I make no order as to costs. In the circumstances, since determination of the first and second grounds entirely disposes the matter, I find no need to dwell on the remaining grounds. M.P. OPIYO

JUDGE 13/12/2024 14