Automated Summary
Key Facts
The case involves a labor dispute between Letshego Bank (T) Limited and Chacha Samson Mwita. The respondent was employed in 2013, promoted to Branch Manager, and terminated in 2019 for breaching the responsibility policy. He filed a labor dispute with the Commission for Mediation and Arbitration (CMA) in 2019, seeking reinstatement due to unfair termination. The dispute was dismissed for want of prosecution after the respondent's counsel failed to appear on three scheduled dates (November 2019, December 2019, and January 2020). The respondent later applied for restoration, citing his counsel's absence due to sickness and traffic jams. The CMA arbitrator initially restored the dispute, but the applicant challenged this decision. The High Court ultimately allowed the application, quashed the CMA award, and found the restoration grounds unsupported by evidence.
Issues
- The court evaluated whether the respondent's counsel provided sufficient cause for non-appearance on 28th January 2020, citing traffic jams and heavy rainfall. The judgment concluded these reasons were insufficient, as no evidence demonstrated they uniquely prevented the respondent from attending, while the applicant and arbitrator did. This aligns with the Court of Appeal's decision in Wambura v. Tanzania Electricity Supply Co. (2016) that traffic jams do not constitute valid grounds for non-appearance.
- The court assessed if the arbitrator's decision to restore the dispute was supported by evidence on record. It found no evidence in the CMA record proving the respondent's counsel was negligent, as the application for restoration only cited traffic and sickness. The judgment emphasized that the arbitrator's reliance on unpleaded negligence claims lacked evidentiary basis, citing precedents like Kluane Drilling v. Kimboka (2006).
- The court determined if the arbitrator's sua sponte introduction of the negligence issue during award composition violated procedural fairness. It held this was an error, as parties were not given an opportunity to address the claim. The judgment referenced Margwe Erro v. Mohalulu (2014) and Kluane's case, which require courts to place new issues on record and afford parties the right to respond before decisions are made.
Holdings
- The court allowed the first ground of the application, determining that the respondent's counsel's absence due to a traffic jam caused by heavy rainfall was not a sufficient cause for non-appearance. The court referenced the Court of Appeal's decision in Phares Wambura v. Tanzania Electricity Supply Company Limited, which held that traffic jams do not constitute valid reasons for non-appearance. The judge emphasized that counsel should have used alternative communication methods or informed the parties and arbitrator of the issue.
- The court allowed the second ground, finding no evidence on record to support the arbitrator's decision to restore the dispute. The judge noted that the respondent's counsel admitted to negligence in their submissions but did not plead this issue before the arbitrator. The absence of evidence for negligence rendered the arbitrator's ruling unsupported by the CMA record.
- The court allowed the third ground, ruling that the arbitrator erred in raising the issue of counsel negligence suo moto without affording the parties the right to be heard. The judge cited cases such as Kluane Drilling v. Salvatory Kimboka and Margwe Erro v. Moshi Mohalulu, which establish that courts must place new issues on record and allow parties to address them. The arbitrator's failure to do so constituted a procedural error.
Remedies
The court allowed the applicant's revision application, quashing and setting aside the CMA award that had previously restored the dispute. This decision was based on the grounds that the arbitrator's ruling was not supported by evidence and that the issue of negligence was raised without proper procedure.
Legal Principles
- The applicant successfully argued that the respondent failed to meet the burden of proof by not adducing sufficient evidence to justify their counsel's non-appearance due to traffic jams and heavy rainfall. The court held that traffic jams alone do not constitute sufficient cause for non-appearance, citing prior case law.
- The court emphasized the principle of natural justice, specifically the right to be heard, in determining that the arbitrator erred by raising the issue of counsel's negligence suo moto without affording the parties an opportunity to address it. The judgment also applied the requirement for a party seeking restoration of a dismissed case to demonstrate sufficient cause for non-appearance, aligning with the burden of proof principle.
Precedent Name
- Mire Artan Ismail and Another v. Sofia Njati
- Margwe Erro and 2 Others v. Moshi Mohalulu
- Mary Daniel v. National Housing Corporation
- Phares Wambura and 15 Others v. Tanzania Electricity Supply Company Limited
- William Shija v. Fortunatus Masha
- Israel Solomon Kivuyo v. Wayani Langoyi and Naishooki Wayani
- Scan-Tan Tours Ltd v. Catholic Diocesan Trustees
- Henrick Solomon Lupembe and Another v. Deputy Minister of Agriculture
- Kluane Drilling (T) Ltd v. Salvatory Kimboka
- Umoja Garage v. National Bank of Commerce
Cited Statute
Civil Procedure Code
Judge Name
B.E. K. Mganga
Passage Text
- “I wish to observe once that traffic jam is not and has not been a special circumstance justifying no-appearance of the parties before the Court.”
- “the arbitrator erred in law by relying on negligence of counsel for the applicant which was not pleaded hence not evidence on CMA record.”
- “we are of the considered view that generally a judge is duty bound to decide a case on the issue on record and that if there are other questions to be considered they should be placed on record and parties be given an opportunity to address the court on those questions.”