wuzhou investment company ltd vs paul sondole jumal 2022 tzhcld 691 19 july 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 127 OF 2021 (From the Ruling of the Commission for Mediation and Arbitration ofPwani at Mkuranga dated 24h day of February 2021 in Labour Dispute No. CMA/PWN/MKR/31/2020) (By Mkombozi: Arbitrator) BETWEEN WUZHOU INVESTMENT COMPANY LTD APPLICANT VERSUS PAUL SONDOLE JUMAL RESPONDENT JUDGMENT 28th June 2022 & 19th July 2022 K. T, R, MTEULE, J. This is an applicatioq^^^^for this court to call for the record of Commission formulation and Arbitration in Labour Dispute No. and legality ofethe ruling in respect of the application to set aside ap court to quash the said ruling and make an order for the matter to be heard interparty. From the record of CMA, the affidavit of the Applicant and the submission in support of the Application, it shows that the Applicant i employed the Respondent as a Security guard on a fixed term contract which commenced from 03rd April 2018 with a monthly salary of TZS 150,000. In August 2020, the respondent was terminated for an alleged lock out initiated by the employer (respondent). The termination aggrieved the Respondent who lodgedKa complaint in the CMA where after the failure of mediatio$tefthe matfer went to arbitration. The arbitration was heard ex-paned andfthe award was issued in Respondents favour. Being^lssatisfied with the award the applicant filed in the CMA, ah applic^lLQl to set it aside. The said application was dismissed hehcegllie present application. The application is disputed bWhesRespondents counter affidavit. The appligat^a^w^s argued by a way of written submissions, where the appHcaQf%^Jgepresented by Ms. Amina Mkungu, Advocate while respondentias represented, by Ms. Jackline Kayombo, Advocate. Their submissions approached 5 legal issues which were framed by the Applicant. The issues are:- (a) Whether it was proper for the Hon. Arbitrator to order for an ex-parte hearing for non-appearance of the applicant on the first date fixed for Arbitration hearing. 2 (b) Whether it was proper for the Hon. Arbitrator to order for Ex-parte Arbitration Hearing without considering the principles of Natural Justice particularly the right to be informed. (c) Whether the Hon. Arbitrator used excessively his discretionary power to order ex-parte A^^tiffi^arirfg to the Detriment of the Applicant. (d) Whether there's any legality an^prop^taries for the Honorable Arbitrator to disregb^^^^easons adduced by the Applicant in theR^ppl^^^A to set aside an ex-parte award- (e) Whether it is p^^^for the Honorable Arbitrator to dismiss the Apphca^^^^lication to set aside an ex-parte award. The Applicant's counsel Ms. Amina Mkungu blamed the arbitrator on what he claims to be a defiance to the stages of arbitration. In her view trie^afbitrator ought to have sought the reason of the absence of the applicant as one of the actions to be taken at the preliminary step. She asserts arbitrator's noncompliance with the principles of natural justice for failure to afford the applicant an opportunity to be 3 heard which contravenes Article 13 of the Constitution of the United Republic of Tanzania. Ms. Amina Mkungu challenged the arbitrator's disregard to the reasons of the applicant's officer's bereavement which caused the failure to attend court hearing. The Applicant's Human. Resource officer claimed to have received information offfi^emise^oFhi father on his way to attend court session on tfig&ame darb when ex- parte hearing was ordered. The Respondent's counsel Ms. Jackline%Kayombo disputed the applicant's assertion. In her view, the arbitrator complied with the law which allows him to proceed with ex-parte hearing when the respondent does nofta^jat^n the date of hearing for expeditious justice. Ii^Ws^^^^^principle of natural justice has been infringed. In her view the reasons of Applicant's absence did not hold water sinc^^^^gpiicant being a company, could have been represented by any other officer before the CMA. Ms. Jackline Kayombo is of the view that the arbitrator did not excessively use her discretionary power on the basis that, no evidence was adduced as to when the Applicant's Principal officer travelled or when funeral ceremony took 4 place. She prayed for the court to dismiss the application for want of merit. Having considered parties' submissions on the issues raised in the applicant's affidavit, I am inclined to address an issue as to whether the applicant has established sufficient grounds to warrant revising of the CMA ex-parte award. The law is clear. Section 88 (8) (a) of tiWiEmployment and Labour Relations Act, Cap 366 confersWa discretion to the arbitrator to order ex-parte h^ing^mckpro^d ex-parte when the respondent does not appearlin couljMt is not disputed that the applicant missed appearance and^there was no notice of such nonappearance. The%rbitrator can not be blamed for exercising her discretior^^^^^^arte hearing due to unaccounted absence of a party. TTe^arbitratpr acted within the powers conferred to him by the lawXI would|not differ with the CMA on the validity of the order to proceed^ex-parte. The question to be resolved now is whether after the missed appearance, the applicant adduced sufficient reasons for the absence to warrant an order to set aside the ex-parte award. This Court finds it worth to direct itself to the well-known principle that for the 5 application to set aside an ex-parte award to be granted, the applicant is placed on a duty to establish good cause or sufficient ground/reason to convince the court (See Mbeki Teachers Sacco's V. Zahra Justas Mango, Revision No. 164 of 2010, High Court Labour Division at Mbeya, (Unreported)). This is one of cases where the Court held that sufficient reason is pre-condite^of^^Coi® to set aside ex-parte order, prorn^^^^^^^^e of any invalid explanation for the delay and neglig&htt^ the part of the applicant." Whafexzon^titute a good cause needs to be determined by reference to all the circumstances of each particular case. In the instant matter the CMA record reveals that the applicant had a good tendence of appearing before the Commission for mediation, except the only one day on 21st October 2020 when the matter was set for arbitration after the failure of mediation. For furtherance of substantive justice 6 and right to be heard in the impugned matter, a benefit of doubt could have been given to the Applicant to see if there could have been any reason of absence. It is deponed that the Applicant's Principal got the news of her father's demise while on the way coming to attend the court session. In my view, this could be a sufficient cause to enable the CMA to channel thf%ea^g of|the matter through a more just procedure of hiring th^^ttrer inter parties by setting aside its ex-parte award. From the above legal reasoning, sin^^^^ourt is the Court of equity, I am of the view thatCx th&^ak^of substantive justice, the heard by allowing partiestobe heard interparty. In the case of Palm Beach Casino V. Thetesia Martin, Miscellaneous Application No. 54 of 20^9^^^^V)urt, Labour Division, at Dar es Salaam, (Wnrep^^^t& Court held that right to be heard is fundamental right wl^f?will be infringed when the party is not heard before being condemned. Basing on the nature of this application I agree with the Applicant's Counsel on the principle in the case of Meis Industries Limited & 2 Others v. Twiga Bankcorp, Misc. Commercial Cause No. 243, 7 HC, at Dar es Salaam in supporting what amount to sufficient cause cannot be defined by a hard and fast rule but depends on the circumstances of each case. The respondent's assertion regarding awareness and negligence on the part of the applicant lacks legal merits, as there was no history of applicant's negligence and she has been acting promptly throughout except the day the^prin^al officer failed to attend due to the demise of her father. In (treasonable apprehension the arbitrator ought to consider this^jgs a reasonable cause to allow the application to set aSid^h^Jx-parte award. This calls for a need to revise the Cf^A ruling?^ From the above reasons®- it^^m^finding that the issue as to whether the applicantha^established sufficient grounds to warrant revisi^^K ther CMA decisions in respect of ex-parte award is answeiw/affirmatively. T^r^^e^^r the interest of substantive justice and since the applicant^had reasonable cause of missing appearance, I hereby quash the decision in Labour Application No. CMA/PWN/MKR/01/2020, set aside the award therein and replace it with an order to set aside the CMA ex-parte award issued in Labour Dispute No. CMA/PWN/MKR/31/2020. CMA records of Labour Dispute 8 No. CMA/PWN/MKR/31/2020 to be returned to the CMA to proceed with hearing inter-parties from the stage it was before the order to proceed ex-parte. The Application is therefore allowed. It is so ordered. 9