IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA

(CORAM: MZIRAY ,l.A., MKUYE, l.A., And KITUSI ,l.A.)

CIVIL APPEAL NO. 173 OF 2016

FINCA TANZANIA LTD APPELLANT

(Appeal from the decision of the High Court of Tanzania

(Mashaka, l.)

Dated the 11th day of April, 2016

JUDGMENT OF THE COURT

This is an appeal against the judgment and decree of the High

Court of Tanzania (Labour Division) at Iringa in Labour Revision No. 66

of 2015.

The facts in brief upon which the appeal is grounded are as

follows: The respondents were employed by the appellant Financial

Institution on different dates in different capacities and posted at Iringa

branch where they worked until on 11.6.2015 when their contracts of

employment were terminated by the appellant on the ground that they

assembled unlawfully. This happened after the respondents had written

1
a letter dated 16.5.2013 addressed to the Chief Executive Officer (CEO)

of the appellant company inviting him to visit their branch by 20.5.2013

to solve some labour disputes between them and the management of

their branch. This letter was viewed by the appellant as an arranged

unauthorised meeting, aimed to strike, without exhausting available

company procedures for addressing their grievances. The consequences

which followed was termination of the respondents contracts of

employment.

Being discontented with the termination, the respondents filed

Dispute No. CMAjIRj64j3013 at the Commission for Mediation and

Arbitration (CMA) at Iringa. Upon mediation, the dispute was not

resolved. Subsequently, the dispute was referred for Arbitration and on

21.8.2015 an award was delivered in favour of the respondents. The

appellant was aggrieved with the Arbitrator's award and for that reason,

filed application No. 66 of 2015 seeking revision at the High Court

(Labour Division) which was determined on 11.4.2016 in favour of the

respondents. Dissatisfied by the High Court's decision, the appellant has

brought this appeal raising three grounds of complaints as follows;

1. That, the High Court erred in law and facts for

holding that no unauthorised assembly or meeting

2
 at the working place by the respondents without

taking account that the appellant proved on

balance of probability.

2. That, the High Court erred in law and facts to hold

in favour of the respondents while the

Commission for Mediation and Arbitration had no

power to adjudicate the dispute since no party to

the case referred the dispute to arbitration

3. That, the High Court erred in law and facts for

holding in favour of the respondents while the

decision of Commission for Mediation and

Arbitration was delivered after expiration of 4

months and no reasons were adduced by the

arbitrator for the delay in the decision.

The appeal was heard before us on 13.08.2019 during which the

appellant was represented by Mr. Yusuf Sheikh, learned advocate and

Mr. Daniel Ngudungi, learned advocate appeared representing the

respondents.

3
 Mr. Sheikh, learned advocate adopted the grounds of appeal and

written submission filed earlier on as part of his oral submission. In his

submission to support the first ground of appeal, he contended that a

letter written by the respondents requesting the appellant to appear on

16.5.2013 signified a strike because it intimated that failure of the

appellant to appear on the due date, the respondents will not attend

work. He argued citing the case of Mallett v. Mcmonagle (1969) 2

ALL ER 178 that the termination in the circumstance was fair and proved

on a balance of probability.

In relation to the second ground of appeal, Mr. Sheikh submitted

that the procedure to refer the matter from Mediator to Arbitrator was

tainted. He was of the view that the aggrieved party is the one duty

bound to refer the matter to Arbitrator and not the Mediator. He

submitted that the Mediator acted without jurisdiction in referring the

dispute to the Arbitrator. He relied on the case of Nicodemus Kajungu

& 1374 Others V. Bulyankulu Gold Mine (T) ltd, Civil Appeal No.

110 of 2008 (unreported).

As to the third ground of appeal, Mr. Sheikh submitted that the

decision was against the principle of "justice delayed justice denied". He

contended that the law requires that the decision be given within 30

4
days after the date of hearing. He submitted that in the instant case, the

decision was given four months thereafter, in violation of section 88(9)

of Employment and Labour Relation Act.

On his part, Mr. Ngudungi, learned advocate having adopted the

written submission that he had filed to oppose the appeal was of the

contrary view. In response to the first ground of appeal, he submitted

that the allegation that there was unlawful assembly culminating into a

strike was not supported by the record. He asserted that the

respondents did not assemble. They only wrote a letter requesting the

management from the Head Office to visit their branch on 20.5.2013 to

solve some labour disputes between them and the branch management.

He submitted that by any standard such a letter cannot be taken and

construed as a strike.

Addressing in reply to the second ground of appeal, the learned

advocate argued that there is no proper procedure to refer a matter

from mediation to arbitration. He said, the procedure is not codified. He

submitted that when mediation was marked to have failed, the mediator

recorded what the parties agreed upon and referred the matter to

arbitration and the parties signed, which implies that they agreed for the

dispute to be referred to the MeA. In the circumstance, it was not

5
correct to say that the mediator went outside the parameters of his

powers, he argued.

As to the third ground of appeal, he admitted that the judgment

was delivered after 30 days. In his view, the irregularity of delivering

judgement after 30 days was not fatal. He argued that the intention of

creating section 88(9) of Employment and Labour Relations Act, was to

expediate the decision and not to make it a nullltv.

Finally and eventually, he maintained that the appeal was without

substance. He urged the Court to dismiss the same with the contempt it

deserves.

We have carefully gone through the rival arguments both in

support and against the appeal. In determining the appeal, we shall

start with the third ground of appeal. The law in terms of s.88(9) of the

Employment and Labour relations Act requires that decisions be given

within 30 days after the date of hearing. It is true that the CMA's

decisionin this case was deliveredafter 4 months. However,the delay in

our view is not a material irregularity in procurement of an award,

sufficient to have the same invalidated. We say so because if for

example the award is nullified merely because the decision was not

given within thirty days the effect is to have the process commence

6
afresh causing further delay which is to the disadvantage of both

parties. To us that is not the spirit behind section 88(9). The spirit is to

have a time frame in completing matters brought before the CMA but

failure to meet the deadline stipulated in section 88(9) will not invalidate

the proceedings and the award. At any rate, the delay of four months in

this case has not prejudiced any party, hence no injustice occasioned. It

is at this stage we tend to agree with the findings of the High Court on

this complaint of delay. We accordingly dismiss the third ground of

appeal.

As to the second ground of appeal, we wish to state briefly that

there is no codified procedure for referring a matter from mediation to

arbitration. As the record reflects, when mediation was marked to have

failed, the mediator recorded what the partied agreed, referring the

matter to arbitration and the parties signed, something suggesting that

parties agreed for the dispute to be referred to the CMA. On that basis,

we cannot say that parties did not refer the dispute to arbitration. As

such therefore, the ground is without merit.

With regards to the first ground of appeal, we are of a firm view

that a letter written by the respondents requesting the appellant to

appear on 16.5.2013 does not by itself signify a strike. The appellant

7
ought to have given evidence that the respondents assembled

unlawfully, participated in a strike and did not attend work. In the

absence of evidence to prove the same, the termination was unfair with

no backing of the law.

That said and in the light of the above considered substantive

matters herein, we are increasingly of the view that, this appeal was

filed without serious and sufficient grounds of complaints. For that

reason, we accordingly dismiss the appeal in its entirety. This being a

labour dispute, we make no order as to costs.

Order accordingly.

DATED at DAR ES SALAAM this 16th day of September, 2019.

R.E.S. MZIRA Y
JUSTICE OF APPEAL

R.K. MKUYE
JUSTICE OF APPEAL

I.P KITUSI
JUSTICE OF APPEAL

8
This Judgment delivered this 30th day of September, 2019 in the

presence of the respondents in persons certified as a true copy of

the original.

~
L. M. CHAMSHAMA
A.G:DEPUTY REGISTRAR
COURT OF APPEAL