Automated Summary
Key Facts
Mohamed Kivugo (applicant) was employed by Guuled Transport Co. Ltd from 2014 until December 2018 when his employment was terminated. He filed a labor dispute with the Commission for Mediation and Arbitration (CMA) challenging the termination as unfair. The CMA arbitration process resulted in an award issued on 23 December 2019, which the applicant sought to revise in the High Court of Tanzania. The court found that the CMA proceedings were vitiated by procedural errors, including witnesses testifying without oaths, lack of arbitrator signatures on witness evidence, and improper endorsement of exhibits. These irregularities rendered the evidence inadmissible and invalidated the proceedings. The court quashed the CMA award and ordered the case to be heard de novo before another arbitrator.
Issues
- The court examined whether the arbitrator neglected to assess the evidence presented by the applicant, impacting the fairness of the dispute resolution process.
- The court assessed whether the arbitrator correctly determined that the employer (respondent) adhered to proper termination procedures for the applicant, challenging the fairness of the termination decision.
- The applicant alleged the arbitrator failed to mandate the respondent to return property belonging to the applicant, raising the issue of property rights and obligations post-termination.
Holdings
The court found that the CMA proceedings were vitiated by irregularities, including witnesses not testifying under oath and exhibits not properly endorsed. As a result, the court quashed the CMA proceedings and the award, ordering the case to be reheard de novo before another arbitrator.
Remedies
- The court ordered the file to be returned to the CMA for the labour dispute to be reheard de novo by a different arbitrator.
- The court quashed the Commission for Mediation and Arbitration (CMA) proceedings and set aside the award due to procedural irregularities in the arbitration process.
- The court did not make an order regarding the costs of the proceedings.
Legal Principles
- The court applied the principle that witnesses must testify under oath or affirmation before the Commission for Mediation and Arbitration (CMA) as per Rule 25(1) of GN. No. 67 of 2007. It further held that the arbitrator is required to sign the end of each witness's testimony to authenticate the proceedings, citing analogous provisions in the CPC and decisions from the Court of Appeal. Failure to comply with these procedural requirements (oath-taking and signing) was deemed to vitiate the entire process, necessitating a retrial.
- The judgment emphasized the necessity of properly endorsing documentary exhibits in CMA proceedings by marking them with the date of admission, CMA stamp, and arbitrator's signature. This aligns with Order XIII Rule 4 of the CPC, which requires endorsements to prevent tampering and ensure document authenticity. The court quashed the proceedings due to non-compliance with these evidentiary standards.
Precedent Name
- Yohana Mussa Makubi and Another vs Republic
- Catholic University of Health and Allied Science (CUHS) v. Epiphania Mkunde Athanase
- Ally Omary Abdi vs Amina Khalil Ally Hildid (As an administratrix of the estate of the late Kalile Ally Hildid)
- Tanzania Portland Cement Co. Ltd v. Ekwabi Majigo
- Iringa International School v. Elizabeth Post
Cited Statute
- Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007
- Code of Civil Procedure
- Code of Penal Procedure
Judge Name
B.E.K. Mganga
Passage Text
- Once the exhibit is admitted, ... it must be endorsed as provided under O.XIII, R.4 of the CPC...the need to endorse is to do away with tempering with admitted documentary exhibits.
- For the foregoing, I find that these irregularities are fatal and has vitiated the proceedings of CMA...I hereby quash the proceedings of CMA and set aside the award. I hereby order the file be dispatched to CMA for the labour dispute between the applicant and the respondent to be heard de novo before another arbitrator.
- For reasons that the witnesses before CMA gave evidence without having first taken oath and as the arbitrator did not append her signature at the end of the testimony of every witness...we find that the omissions vitiate the proceedings of the CMA...we hereby quash the proceedings both of the CMA and that of the High Court...