Macalister Usongo vs Small Things (Civil Appeal No. 200 of 2021) [2024] TZCA 1058 (6 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA rCORAM: WAMBALI. J.A.. MURUKE 3.A. And MGONYA, J.A.l CIVIL APPEAL NO 200 OF 2021 MACALISTER USONGO.......................................................APPELLANT VERSUS THE SMALL THINGS...................................................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Arusha) (Mzuna, J.') Dated the 10th day of December, 2022 in Labour Revision No. 99 of 2018 JUDGMENT OF THE COURT 29th October & 6th November, 2024 MGONYA, J.A.: Macalister Usongo, the appellant, is before the Court faulting the decision of the High Court, Labour Division sitting at Arusha which quashed the award of the Commission for Mediation and Arbitration (the CMA) which was in his favour in Complaint No. CMA/ARS/ARB/17/2016. The appellant was an employee of the respondent, The Small Things (TST) a Charitable Organization (Non-Governmental Organization) registered in the USA and Tanzania at Makumira in

Arusha Region dealing with empowering vulnerable children including orphans in the surrounding community. Initially, the appellant served as a volunteer at the respondent's organization and later secured an employment contract under unspecified period of time commencing on January, 2015. Later, he was elevated to the position of Operational Manager. He was later terminated through a letter dated 8th December, 2015 on grounds of dishonesty and gross misconduct. Aggrieved, the appellant successfully challenged the termination both on substantive and procedural grounds. Having heard the parties, the CMA found the appellant's termination unfair. As a result, he was awarded assortment of reliefs ranging from compensation of his salaries for the unexpired term of contract, subsistence allowance and repatriation costs. Aggrieved, the respondent challenged the award made by the CMA by filing Labour Revision No. 99 of 2018 before the High Court at Arusha. To a large extent, the High Court (Mzuna, J.) reversed the impugned award by finding the appellant's termination fair based on gross misconduct. The High Court also varied the reliefs awarded to the appellant by the CMA leaving only repatriation costs to the place of the appellant's recruitment.

The High Court's decision did not amuse the appellant, hence the instant appeal predicated on two grounds, to wit:

1. That, the court erred in law and fact in ordering that the appellant was not entitled to compensation for unfair termination;
2. That, the court erred in law and fact for determining the application for revision on merit and failure to take into account the fact that: i. The appellant was terminated unfairly, ii. The appellant never admitted the accusations he was charged with; and iii. The appellant was entitled to subsistence allowance. In essence, the appellant is faulting the High Court on its decision to the effect that his termination was fair and that he was not entitled to reliefs sought at the CMA. When the appeal was called on for hearing, Mr. Shedrack Mofulu learned advocate appeared representing the appellant, whereas Mr. Julius Karata, learned advocate represented the respondent. Before the commencement of the hearing, the Court invited both learned advocates to address it on propriety of the proceedings at the

CMA appearing at pages 150 to 152 of the record of appeal; particularly the order for exparte hearing of the dispute against the respondent. Responding, initially, Mr. Mofulu who also represented the appellant at the CMA firmly submitted that the CMA's proceedings on 24/11/2017 were proper and that the order was justified as he had objected to the letter for adjournment as stated by the Arbitrator. Therefore, he was of the view that, though he did not pray, on behalf of the applicant to proceed exparte with the hearing in the absence of the respondent, the order of the Arbitrator was justified and did not deny the respondent the right to be heard. Nevertheless, he left the matter for the decision of the Court. On his part, Mr. Karata's submitted that, before the Arbitrator issued an exparte order, he was supposed to be moved by the prayer of applicant's advocate, but that was not the case. He submitted further, that, since the exparte order was not prayed for by the applicant but it emanated from Arbitrator own move, the respondent's fundamental right to be heard was infringed because he did not cross- examine the applicant when he testified. Thus, his evidence was taken wholesale and relied on in determining the CMA's award. In the event, the learned counsel prayed the Court to nullify the CMA's proceedings

from 24th July, 2017 when the exparte order was made and set aside the award. He further prayed the Court to set aside High Court's proceedings as they emanated from the nullity proceedings. Finally, he urged the Court to remit the case file to the CMA for interparte hearing starting with the appellant's case before the exparte order was made as the respondent had tendered her evidence. In rejoinder, upon hearing the submission of Mr. Karata and being prompted by the Court, Mr. Mofulu retreated and agreed that, in view of the fact that respondent's advocate letter intended to seek adjournment of the hearing because he had no instruction from the respondent, it entailed that the respondent had to appear in person or by the principal officer or another advocate because there was no appearance on that date on her part to the extent of entitling the Arbitrator to issue such an exparte order. He therefore readily supported the argument that, there was no right to be heard on the part of the respondent before the order was made. Thus, he joined hands with Mr. Karata to pray that the proceedings of the CMA be nullified from 24/11/2017 and those of the High Court in Labour Revision No. 99 of 2018, followed by an order remitting the file to the

CMA for continuation of hearing from where the proceedings was adjourned on 22/11/2017. Having heard the concurrent submissions of the counsel for the parties, we entirely agree that the order for exparte hearing against the respondent was made arbitrary without granting her the right to be heard. The issue for our determination is on the propriety or otherwise of the proceedings at the CMA with regard to the exparte order. It is clear in the record of appeal that the Arbitrator acknowledged that he had received a letter in his file from the then advocate for the respondent seeking adjournment of the hearing because he had no instruction. That being the case, even if there was a prayer to proceed with the hearing from the applicant's counsel, which is not the case, as the record is silent, the Arbitrator was bound to adjourn the hearing of the dispute and direct the summoning of the respondent in person, in order to ascertain the position on whether she was prepared to proceed in person with the hearing or she had intended to engage another advocate. The exparte order was therefore highly irregular and offended the principle of the right to be he heard on the part of the respondent. Particularly, considering that the respondent had already

tendered her evidence and she only awaited the evidence of the appellant before the determination of the dispute. For clarity, we deem it convenient to reproduce the relevant part of the proceedings hereunder: "22./10/2017 Lomayan : Arbitrator Mr. Shedrack: Advocate for the respondent Mr. Michael. ..... For respondent CMA The matter is coming for hearing. But the respondent prays short adjournment as his advocate is notpresent today. Hearing on 24/11/2017at 10.00. Sgd: Lomayan S. Arbitrator 24/11/2017 Lomayan : Arbitrator Mr. Shedrack: Advocate for the Applicant Respondent: Notpresent CMA Again, the person purporting to be Advocate for the respondent filed a letter praying for adjournment o f this case because he has no instruction to proceed the letter that is objected by the Applicants because it has been for several time the Respondent prays for Adjournments.

CMA-Order The matter ordered to proceed on exparte hearing, I reject the grounds for Adjournments. This matter has been adjourned by the respondent for several time without good cause. So ordered. Sgd Lomayan-Arbitrator" Gauging from the reproduced part of proceedings, it is evident or apparent that, apart from the fact that there was no prayer from the appellant's counsel to proceed exparte against the respondent, the order was made without considering that there was no appearance on the part of the respondent because her advocate had indicated that he had no instruction to proceed and intended to withdraw his service. It follows that the respondent had not been notified to appear in the absence of the advocate. It is noteworthy that, Rule 7 (3) of the Labour Institutions (Ethics and Code of Conduct for Mediators and Arbitrators) Rules, GN. No. 66 of 2007 provides for fair hearing of the parties before the Arbitrator. It states: "Every Mediator and Arbitrator shall not conduct a hearing without all parties being present, except where satisfied that,

adequate notice o f the time, place and purpose o f the hearing have been served to the parties". Therefore, the Arbitrator's failure to summon the respondent in the absence of her advocate who had indicated that he had no instruction and thus he sought adjournment through a letter, denied her right to a fair hearing. The act amounted to violation of the fundamental principle of the right to be heard, as the testimony of the appellant proceeded in her absence. In Mbeya-Rukwa Autoparts & Transport Limited v. Jestina George Mwakyoma [2003] T.L.R. 251 the Court stated as follows regarding the principles of natural justice: "In this country, NaturalJustice is not merely a principle o f common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard among the . attributes o f equality before the law." Moreover, in the case of Independent Power Tanzania Ltd & Standard Charted Bank (Hongkong) Ltd (Civil Revision No. 1 of 2009) [2009] TZCA 17 (9 April 2009, TanzLII), the Court made reference to the observation of the Supreme Court of India decision in the case of Union of India v. Tulsi Ram, AIR 1985 S. C. 1416 at page 1456 where it was stated that:

"The principles o f NaturalJustice constitute the best elements o f a fair hearing, having their roots in the innate sense o f man for fair play and justice which is not the preserve o f any particular race or country but it is shared in common by a ll men ." For similar stance, see also the decisions of the Court in Peter Nghomango v. The Attorney General, Civil Appeal No. 114 of 2011 (unreported), Severe Mutegeki & Another v. Mamlaka ya Maji Safi na Usafi wa Mazingira Mjini Dodoma (DUWASA) (Civil Appeal 443 of 2019) [2020] TZCA 310 (19 June 2020, TanzLII) and Mufindi Paper Mills Limited v. Ihatu Village Council & Others (Civil Revision 555 of 2019) [2022] TZCA 597 (29 September 2022, TanzLII). In the circumstances, we hold that the proceedings and an exparte order of the CMA from 24th November, 2017 onward were irregular for denying the respondent right to be heard. Consequently, we invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act to nullify the CMA proceedings from 24th November, 2017 and set aside the exparte order and the award. We further nullify the High Court's proceedings in Labour Revision No.

99 of 2018. Consequently, we remit the file in Labour Dispute No. CMA/ARB/ARB/17/2016 to the CMA and order that it should proceed with the hearing of the dispute from where it ended on 22/11/2017 in accordance with the law. We make no order as to costs. DATED at ARUSHA this 5th day of November, 2024. The Judgment delivered this 6th day of November, 2024 in the presence of Mr. Julius Karata, learned counsel for the respondent, also holding brief of Mr. Shadrack Mofulu, learned counsel for the appellant, F. L. K. WAMBALI JUSTICE OF APPEAL Z. G. MURUKE JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL is herebv^Eert-iied as a true c o d v of the oriainal.