IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

LABOUR DIVISION
AT ARUSHA
LABOUR REVISION NO. 124 OF 2018
(Original CMA/ARS/MED/388/2014)

TANALEC LIMITED ..... ..... .......... ..... APPLICANT

RULING

Date of last order 26-10-2021

Date ruling 16-11-2021

B. K. PHILLIP, J.
This application made under the provisions of Section 91(1) (a), (2) (b)

and (c) of the Employment and Labour Relations Act No. 6 of 2004, Rule

24 (1) (2)(a) (b) (c) (d) (e) (f) and (3) (a) (b) (c) and (d), Rule 28 (1) (b)

(d) and (e) of the Labour Courts Rules, GM. No. 106 of 2007. The

applicant prays the following orders:

i) That the Labour Court be pleased to call and examine the records

of the Labour dispute No. CMA/ARS/MED/388/2014, thereafter be

pleased to revise and quash the Ruling on application to set aside

the ex-parte Award dated 4th day of June 2015 by Hon Maurice

i
 Egbert Sekabila, thereafter the matter be remitted to be tried de

novo.

ii) Any other orders / reliefs that this Honourable court may deem

fit to grant.

The application is supported by an affidavit sworn by the learned Advocate

Aggrey Gosmas Kamazima, whereas the learned Advocate Sheck Mfinanga

filed a Counter Affidavit in opposition to the application. Mr. Kamazima and

Mr. Mfinanga appeared for the applicant and the respondent

respectively.

I ordered the application to be disposed of by way of written submission.

Both advocates filed their written submissions as ordered. Before

embarking on the analysis^-of the submissions made by the learned

Advocates appearing herein, let me state albeit briefly, the background to

this application.

The respondent herein was employed by the Applicant as an Internal

Auditor. His employment was terminated on 17/10/2014 on the ground of

incompetency. Being aggrieved by the termination of his employment he

lodged his complaint at the Commissioner for Mediation and Arbitration for
Arusha ("CMA") vide Labour dispute No. CMA/ARS/MED/388/2014. The

matter at CMA was heard ex-parte, following the Applicant's non

appearance before the CMA. On 14/01/2015 the CMA delivered its

Judgment in which it ruled out that the Respondents termination was

substantively and procedurally unfair. It ordered the applicant to pay the

Respondent a sum of Tshs, 48,700,000/= being 12 months'salary in lieu of

notice, severance pay, leave pay and repatriation costs from Arusha to Dar

es Salaam, and issuance of a certificate of service to the respondent. On

12/02/2015 the applicant lodged an application at the CMA, seeking for

an order for setting aside the ex-parte Judgment on the following

grounds; That the applicant's representative one Bernard Hezron, when he

appeared before the CMA he mistakenly rioted that the matter was

adjourned to 15/12/2014 instead of 12/12/2014. Consequently, the

applicant failed to attend at the CMA on the hearing date .That he

became aware of the ex-parte award on 15/01/2015.The applicant's

application aforementioned was heard inter-parties and on 04/06/2015

the CMA dismissed it On the ground that the applicant failed to adduce

sufficient reasons for setting aside the ex-parte award. The applicant did

not give up, he filed an application for Revision vide Application No. 140
of 2015, which was struck out with leave to refile within seven days on

12/05/2017 for being defective .On 19/05/2017, the applicant refiled his

application for Revision vide application No. 62 of 2017, but the same was

found to be incompetent. On 29/11/2018 the aforementioned application

was marked withdrawn with leave to refile following the applicant's

prayer to withdraw it. On 14/12/2018 the application at hand was filed by

the Applicant with the same aim of setting aside the ex-parte award made

by the CMA on 14/01/2015.

Back to the application at hand, in his submission Mr. Kamazima adopted

the contents of his affidavit in support of this application and raised the

following grounds: That on 26/11/2014, the Applicant's Human Resource

Officer, Mr. Bernard Hezron who appeared before the CMA, he mistakenly

noted that the matter was adjourned to 12/12/2014 instead of 15/12/2014,

as a result he went to the GMA on 15th December 2014, only to be told by

the clerk that his case was not scheduled on that day. That, being a

layman, he decided to assign his case to a Law firm namely Law Bridge.

Unfortunately that Law firm had closed for the end of the year vacation

from 14th December, 2014 to 15th January, 2015. The applicant became
aware of the ex-parte award on 15thJanuary, 2015 when he was served

with the same.

Mr. Kamazima faulted the Mediator's order for ex-parte hearing on a

single non-appearance of the applicant. He maintained that the applicant

had no any previous records of non-appearance. That it was wrong for

the Mediator during mediation stage to move to such an extreme step of

ordering an ex-parte hearing for only single non-appearance of the

applicant, without warning himself of the importance of the fundamental

right to be heard

Citing the Provisions of Rule 14 (2) of the Labour Institution (Mediation and

Arbitration Guidelines) Rules GN. No, 67 of 2004, Mr. Kamazima contended

had-dtscretlon to postpone the mediation and issue

summons or to continue with the determination of the dispute. He

maintained that the Mediator erred for not taking the 1st option in the

discretion bestowed upon him by the law, that is, postpone the mediation

and issue summons for mediation on another date as the applicant had a

good record of attending at the CMA. In short Mr. Kamazima was of the

view that the mediator failed to exercise his discretion judiciously.

5
It was Mr. Kamazima's contention that the Labour Court is a Court of

equity thus, the mediator erred in law for failure to issue summon to the

applicant who had a good record of appearing before CMA. To cement

his argument he cited the case of Felician Rutwaza Vs. World Vision

Tanzania, Civil Appeal No. 213 of 2019 (unreported) in which the

Court of Appeal said the following;

", the Labour Division o f the High Court was right in exercising its
discretion granting leave to refile a proper application. In our view that
Court acted consistent with Rule 3(1) and 55 (1) o f the Labour Court
Rules, 2007 GN. No.106 made under section 55 (1) o f the Labour
Institution Act, (CAP 300 R.E 2019% the former rule provides the
Labour Court be a Court o f equity..."

Mr. Kamazima submitted further that the ex-parte award is tainted with

illegality and was improperly procured because the respondent had worked

with the applicant for less than 12 months. Thus, he was not entitled to

the payment of severance pay and leave allowance. To cement his

arguments he cited the Provisions of Section 42 (2) (a) and 30 (b) (i) of

the Employment and Labour Relations Act, (henceforth the "ELRA")

Relying on the provisions of section 88 (4) (b) of the ELRA, and Rule 3 (i)

of the Labour Court Rules 2007, Mr. Kamazima insisted that the Mediator
was required to avoid technicalities and deal with the matter on its merits.

He faulted the mediator's findings that the applicant was supposed to

attach a copy of his diary so as to prove that he wrongiy recorded the next

date for the case as 15/12/2014 instead of 12/12/2014.

Also, he cited the case of M/S Metro Plastic Industry Limited Vs.

Abuu Mkulwa and Richard Mwaifunga T/A Yona Auction Mart

Labour Revision No. 62 of 2009 (unreported) in which this court set

aside an ex-parte award for lack of proof of service of summons among

others. Mr. Kamazima implored this Court to set aside the ex-parte award,

quash the proceedings of the CMA and order hearing of the matter inter­

parties.

ftri^bttolrl^Hrivifinanga came up wilhrthe following arguments; That the

application for setting aside the ex-parte award was hopelessly filed out of

time in contravention of Rule 30 (1) of the Labour Institution (Mediation

and Arbitration Guidelines) G.N. No. 64 of 2007 which provides that, an

application for setting aside an award has to be made within 14 days from

the date a party became aware of the award sought to be set aside.

Referring to paragraphs 8 and 11 of the affidavit in support of this

the ex-parte award on 15/01/2015 and filed his application for setting

aside the ex-parte award on 12/02/2015, that is, 29 days from the date

he became aware about the existence of the ex-parte award. He cited the

case of Swila Secondary School Vs. Japhet Petro (unreported) in

which the Court of Appeal said the following:

"Since, in the present case, the second application for setting aside
the ex-parte award was time barred, the CMA lacked jurisdiction to
entertain it The proceedings before it and the order setting aside the
ex-parte award were therefore a nullity. The ex-parte award therefore
remained unchallenged, hence intact as the learnedjudge rightly and
firmly held."

The learned Advocate went on submitting that, the legal consequences for

filing an application out of time is dismissal of the same. He cited the case

of Steven Massatu Wasira Vs. Joseph Sinde Warioba & the AG,

(1999) TLR 334, Mama Seleman Chileu & 19 Others Vs.

Halmashauri ya Manispaa yaTemeke, Revision No. 821 of 2018

(unreported) and Swila Secondary School (supra) to buttress his

arguments. He pointed out that though the issue concerning the time

limit for filling an application for setting aside an ex-parte award was not
raised at the CMA, the same can be raised at this stage as it involves the

question of Jurisdiction. He strongly argued that the CMA was supposed

to dismiss that application outright for being time barred.

With regard to the arguments raised by Mr. Kamazima, Mr. Mfinanga's

response was to the effect that, the applicant failed to adduce sufficient

explanations and /or reasons to move the CMA to grant his application.

Relying on the case of Abdallah Zaraf Vs. Mohamed Amari(1969)

HCD 191, Mr Kamazima argued that the applicant was duly bound to

establish that he was prevented by sufficient cause from appearing before

the CMA on the material day.

It was Mr. Mfinanga's contention that the applicant was duly served with

summons for the application, that is why he appeal ed— before the CMArrnr

26/11/2014 and prayed for adjournment of the application so as to get

a time to liaise with the Company's management for settlement of the

dispute. The matter was adjourned to 12/12/2014. Moreover, Mr.

Mfinanga argued that, the applicant's contention that he recorded the

next date for the case wrongly depicts lack of diligence on part of the

9
applicant and cannot be a sufficient reason for setting aside the ex-parte

award.

In addition, Mr. Mfinanga argued that the applicant's inability or failure to

appear before the CMA on the date the matter was scheduled and/or

subsequent failure to apply for extension of time to lodge the application

for setting aside the ex-parte award is fatal. It is not a mere

inadvertence. The applicant decided to sleep on his rights. The CMA

cannot be faulted in any way as it effectively served the applicant with the

summons.

With regard to the award of severance allowance and money for leave, Mr.

Mfinanga implored this Court to ignore Mr. Kamazima's argument in

fespect of those two grounds becaose-itfe-sanie have been raised as an

aforethought. They are not reflected in the affidavit in supporting this

application and consequently the respondent had no opportunity to

respond to the same in his counter affidavit as he has been taken by

surprise. He insisted that submission is not evidence and it is supposed

to be predicated on what is deponed in the affidavit in support of the

application and not otherwise. He cited the case of Tanzania Union of

Company Limited Vs. Mbeya Cement Company Limited and

another (2005) TLR 41. To bolster his arguments.

Furthermore, the allegations raised by Mr. Kamazima on the payment of

severance allowances and leave pay needs evidence to be proved so as to

determine whether or not the respondent worked with the applicant for

less than 12 months, contended Mr. Mfinanga. He was of the view that

entertaining the aforesaid grounds would led this Court to determine issues

which are not within its jurisdiction as the ex-parte award is not yet set

aside. To cement his arguments he cited the case of The registered

Trustees of Pentecostal Church in Tanzania Vs. Margreth

Mukama,Civil Appeal No. 45 of 2015 (unreported).

With regard to the applicant's contention that the Human Resources

Manager Mr. Gerard Hezron mistakenly recorded the next date for the

case wrongly, Mr. Mfinanga argued that the affidavit in support of the

application that was filed at the CMA did not disclose the date which was

recorded by the applicant's Human Resources Manager. Disclosing that

date at this stage is a new fact, which should not be entertained by this
court since it is a pure afterthought aimed at circumventing the proper

legal procedure and abuse of the court's process, contended Mr. Mfinanga.

He implored this Court not to take into consideration the applicant's

assertion that he wrongly recorded the hearing date. To cement his

argument, he cited the case of Registered Trustees of Social Action

and another Vs. Happy Sausages Ltd and 10 others (2002) TLR

285. And Farida and 2 others Vs. Domina Kagaruki, Civil Appeal

No. 136 of 2006 (unreported) which was cited with approval in the case

Yazidi Rajabu Aka Byamungu and 2 others Vs. Nakuroi

Investment Co. Ltd Land Case No. 118 of 2016 , ( unreported) in

which the court said the following.

"It is the genera! principle that the appellate court cannot consider
or deal with issues that have not canvassed, pleaded and or raised
at the lower court"

Relying on the case of Ngao Godwin Losero Vs. Julius Mwarabu, Civil

Application No. 10 of 2015, ( unreported) Mr. Mfinanga submitted that

Mr. Kamazima's contention that the applicant is a layman, thus was not

conversant with the legal procedures cannot be a shield for his negligence.

He contended that ignorance of the law is not a defence. If the applicant

12
was a diligent and prudent party he would have asked to be apprised of

the proper legal procedures and the law in general. He insisted that

ignorance of the law is not an excuse. To cement his argument he cited

the case of Salum Ahmade Kuangaika Vs. Mohamed Mussa Salum,

Civil Reference No. 4 of 2011 ( unreported).

Furthermore, Mr. Mfinanga submitted that since the applicant did not file

any reply to the counter affidavit filed by the respondent to contradict what

has been alleged therein, then, implied he admitted that he was

negligent. To cement his arguments he cited the case of Tanzania Parts

Authority Vs. Ms. Pembe Flour Mills Ltd., Civil Application No.49 of

2009 (unreported).

Moreover, MrHHfinanga argued that, the applicant's assertion that fie

appeared in court on 15/12/2014 and was informed by a Clerk that the

application Was not scheduled on that date does not hold water, since he

failed to file an affidavit sworn by the CMA Clerk to substantiate the

aforesaid assertion. The same remains to be a hearsay. To bolster his

arguments he cited the case of Said Salim Bakhresa Vs. Ally A.

Ngume(1997) TLR 312 and M/s Tanzania Coffee Board Vs. M/S
Rombo Millers Limited Civil Application No. 25 of 2015

(unreported).

With regard to the applicant's contention that the Law firm he intended to

engage was on the end of the year vacation, Mr. Mfinanga's response was

to the effect that, that argument has no merits as the CMA records reveals

that on 26/12/2014 the applicant's officer (Mr. Bernard Hezron) prayed for

an adjournment of the application to 12/12/2014 so as get time to

liaise with the applicant's Management team for proposing a settlement of

the matter. The story on engaging a law firm is a new one. The

applicant's hand are not clean as he is creating new stories now and then,

Mr. Mfinanga contended that whoever seeks equity from this court must

came with clean hands.

Mr. Mfinanga distinguished the case of Felician Rutwaza (supra) from

this case on the ground that the same is not concern with an application

for setting aside the ex-parte award, but it is concern with the discretional

powers of the High Court to grant leave to refile a proper application for

Revision after the first one was struck out. The case of M/S Metro

Plastic Industries Limited (supra) was also distinguished from the

was no proof of service of summons to the applicant who had not

appeared in court, whereas in the matter at hand there was proof of

service of summons to the applicant and the applicant had appeared

before the CMA.

In his rejoinder Mr.Kamazima reiterated his submission in chief. He

contended that the applicant was denied his right to be heard which is a

fundamental principle of natural justice enshrined in our Constitution. Our

Courts have insisted several times that parties have to be accorded their

right to be heard. To fortify his argument he cited the case of Transport

Equipment Vs. Deoram Valamblis (1998) TLR 89 and Mbeya

Rukwa Autoparts and Transport Limited Vs. Jestina Mwakvoma

(2003) TLR 253.

Furthermore, Mr. Kamazima, submitted that the issue concerning the

payments of severance pay and leave pay has been properly raised at this

stage because it involves Jurisdiction issues, thus , it can be raised at

any stage. He invited this court to set aside the ex-parte award.
Having dispassionately analyzed the submissions made by the learned

Advocates appearing herein. Now, let me embark on the determination of

the merits of this application. As it can be deciphered from the prayers

made by the applicant in this application as well as the submissions made

by the learned Advocates, the task of this Court is to determine whether or

not the applicant adduced sufficient reasons for failure to appear before

the CMA on the date when the application was heard ex-parte. In his

affidavit in support of this application filed at the CMA, the applicant

adduced two major reasons for his non appearance before the CMA, to

wit; That the applicant's Human Resources Manager, Mr. Bernard Hezron

mistakenly recorded the date for the case wrongly and that he was not

served with summons to appear on the date when the matter proceeded

ex-parte. The same reasons have been adduced before this Court

together with additional reasons which were not raised at the CMA.

However, upon going through the Ruling of the CMA ,1 noted that the

Mediator dealt with the reason concerning the wrong recording of the date

of hearing only. He did not say anything concerning the applicant's

concern that that he was not served with the summons for the ex-parte

hearing. The reason behind this is not disclosed in the Ruling.

of service of summons and cited case laws to support his stance. Suffice

it to say that it is a common ground that service of summons is crucial on

the procedure of hearing of cases as it informs a party his right to be heard

and accords him the opportunity to be heard. It is not in dispute that right

to be heard is a basic principle of natural justice.

In his submission, Mr. Mfinanga argued strongly that the applicant was

served with the summons for the application, that is why he appeared in

Court. Therefore, he was aware of the hearing date. His sloppiness in

noting the next date for the application is his fault and cannot amount to a

good reason for failure to appear before the CMA when the matter was

heard ex-parte. With due respect to Mr. Mfinanqa, I think he has missed

the point on the applicant's complaint concern on the service of

summons.The CMA records shows that on 26/11/2014 the matter was

called for mediation. Both the applicant and respondent were present. The

matter was adjourned to 12/12/2014 and that is when problems cropped

up. The applicant claims that he mistakenly recorded the next date for

the application as 15/12/2014 instead 12/12/2014. Consequently, when

the case called for mediation on 12/12/2014 the applicant did not enter
appearance. Furthermore, the CMA records show that on 12/12/2014 the

respondent prayed for ex-parte hearing because the applicant did not

enter appearance. The Mediator granted the prayer and fixed the matter

for ex-parte hearing on 18/12/2014. Let me interpose here one

important aspect of this matter, that is, the status of the application

changed, from mediation to ex-parte hearing. The ex-parte hearing was

scheduled to be conducted on another date which the applicant was not

aware of. Under normal circumstances the applicant was entitled to be

notified of the date for ex-parte hearing by being served with a summons

which would have indicated that the status the case had changed from

mediation to ex-parte hearing.

I am inclined to agree with Mr. Kamazima that it was imperative for the

Mediator to issue an order for service of summons to the applicant. If the

Mediator would have decided the matter on 12/12/2014 pursuant to

Section 87 (3) (b) of ELRA, the applicant's complaint that he was not

served with summons would not hold water. So long as the Mediator

decided to fix the ex-parte hearing on another date, he was duty bound

to notify the applicant. In the same line of argument, I decline to agree

with Mr, Kamazima's contention that the Mediator was bound to postpone

18
the mediation session because the applicant had defaulted to appear

before the CMA only once. It has to be noted that the law does not

provide that there should be numerous defaults in appearance for the

CMA to exercise its discretion to determine the matter under Section 87 (3)

(b) of the ELRA. The fact that the labour Court is a Court of equity does

not mean that it condones laxity of the parties.

Since I have already made a finding that the applicant was not served with

summons upon adjourning the matter for ex-parte hearing, which I hold it

to be a good reason for his failure to appear in court on 18/12/2014 when

the matter was heard ex-parte, I do not see any plausible reasons to deal

with the remaining arguments raised by the learned counsel in this matter.

In the upshot this application is granted. The ex-parte award issued by the

CMA is hereby set aside. This matter should be heard de novo before

another Mediator.

Dated this 16th day of November 2021