IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION
AT DAR ES SALAAM

REVISION APPLICATION NO. 532 OF 2020

(Originating from Labour Dispute No. CMA/DSM/KIN/R. 188/18)

BETWEEN
GRAND VILLA HOTEL................................................................ APPLICANT
VERSUS
SAADA KIMASHALO.............................................................. RESPONDENT

Date of Last Order: 16/11/2021

Date of Judgment: 28/01/2022

I. Arufani, J,

This application filed in this court by the applicant as he

was dissatisfied by the ruling of the Commission for Mediation and

Arbitration (hereinafter referred as the CMA) delivered in Labour

Dispute No. CMA/DSM/KIN/R. 188/18 by Hon. Fungo E. J., Arbitrator.

The Hon. Arbitrator dismissed the application for extension of time to

set aside the ex-parte award issued on 4th September, 2018 filed at

the CMA by the applicant for want of sufficient reason to allow the

application. The application was supported by the affidavit of

Meshack Jonas Matende, the applicant's Principal Officer and the

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respondent opposed the application by filing her counter affidavit in

the court.

The brief facts of the matter as can be found in the record of

the matter are to the effect that, the respondent was employed by

the applicant as hotelier on unspecified period of time from July,

2017. She proceeded with the employment until 30th January, 2018

when the respondent alleged that, she was told to go on leave

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without pay. The respondent was aggrieved by the decision of the

applicant and decided to refer the dispute to the CMA. The dispute

was heard ex parte and the respondent was awarded twelve (12)

months salaries as compensation for being unfairly terminated from

her employment, 1 month salary in lieu of notice and one of month

salary in lieu of leave.

The applicant was aggrieved by the ex-parte award and filed

omnibus application in the CMA seeking for extension of time to set

aside the ex-parte award and an order of setting aside the ex-parte

award. After hearing the parties the CMA dismissed the application

for extension of time on ground that the applicant had failed to

adduce sufficient cause for the delay to file an application for setting

aside the CMA's ex parte award within the time prescribed by the law.
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The applicant was dissatisfied by the decision of the CMA and filed

the present application in this court urging the court to revise the

decision of the CMA by basing on the grounds listed hereunder:-

/. Whether it was legal for the mediator to proceed with

mediation arbitration in absence of the applicant.
ii. Whether the mediator and arbitrator were fair to
entertain defective CMA Fl.

Both parties were represented in the matter. While the

applicant was represented by Advocate Armando Swenya, the

respondent was represented by Mr. Joseph Basheka, Personal

Representative. Following the problem of Covid-19 pandemic the

court ordered the parties to argue the application by way of written

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submission. Thus, the application was argued by way of written

submission.

Submitting in support of the application, the counsel for the

applicant argued in relation to the first ground of revision that, the

arbitrator and mediator erred in law and fact by entertaining the

matter in absence of the applicant. He submitted that, even the

impugned ruling was erroneously reached as the applicant had shown

good cause to warrant grant of extension of time to set aside the ex-

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parte award. He explained that, there was improper service of

summons to the applicant and there was no proof of service required

to be effected under Rule 6 (2) (a) (b) and 7 (2) of the Labour

Institutions (Mediation and Arbitration) Rules, GN. No. 64 of 2007.

He argued that, according to annexure GVH5, the summons

was served to the applicant on 28th March, 2018 which was the day

after hearing of the dispute as the hearing was conducted on 27th

March, 2018. He argued further that, although it was stated the

applicant was served with summons to appear before the CMA and it
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was received by Joyce Kalyalya but the mentioned person is unknown
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to the applicant. He argued that suffices to prove there was no

proper of service of summons to the applicant.

He submitted that, the CMA ought to grant the applicant

extension of time to file an application to set aside the ex parte

award in the CMA out of time. He submitted further that, failure to

serve notice of hearing of the combined mediation and Arbitration to

the applicant as required by the law contravened Rule 18 (2) of GN.

No. 64 of 2007 which requires at least a written notice of fourteen

days to be issued to the parties.

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 He argued in relation to the illegality stated is featuring on the

CMA Fl that, the CMA was not properly moved to entertain the

dispute due to contradictions appearing in the CMA Fl in relation to

the date when the dispute arose. He stated that, while the

respondent stated at page 3 of the CMA Fl the dispute arose on 30th

January, 2018 but it is indicated at Part B of the CMA Fl that the

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respondent was given notice of termination of her employment on 4th

July, 2017 which shows the dispute was referred to the CMA out of

time.

He went on arguing that, the CMA Fl does not state the reliefs

claimed by the respondent by stating the amount of compensation

the respondent was claiming from the applicant. To support his

submission the counsel for the applicant cited the case of Leopard
if!?- ' ; •

Tours Ltd v. Rashid Juma & Another, Revision No. 55 of 2013

(unreported).

He further submitted that, there is illegality in the award as the

respondent was the employee of less than six (6) months. He argued

that, although the respondent was not covered under sub part E of

the ELRA but the Hon. Arbitrator found that the respondent was

unfairly terminated and proceeded to award her the reliefs stated

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earlier in this judgment. At the end he prayed the court to grant the

applicant the order is seeking from this court.

In opposing the application, the personal representative for the

respondent submitted that, the counsel for the applicant misdirected

himself by arguing about the applicant not being served with

summons to appear before the CMA. He stated that, the issue as to

whether the applicant wase served or not served with the summons

cannot be determined in this application because, the application

which was rejected by the CMA was for extension of time within

which to file an application to set aside the ex parte award in the

CMA and application to set aside the ex parte award. To support his

argument he referred the court to the case of Aristides Pius

Ishebabi v. Hassan Issa Likwendembe & 3 Others, civil

Application No.5/2019.

He further submitted that, the CMA was correct to dismiss the

application for extension of time for failure to adduce sufficient cause

for the delay and account on each day of the delay. He stated

although the applicant stated before the CMA that she was aware of

the ex parte award on 16th November, 2018 but the application for

extension of time was filed at the CMA on 28th December, 2018 which
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was about 42 days from when the applicant became aware of the ex-

parte award. To strengthen his submission, he cited several cases in

his submission to insist that, the applicant had a duty to account on

each day of the delay. One of those cases is the case of Bushiri

Hassan V. Latifa Lukio Mashayo, Civil Application No. 3 of 2007

where it was held that, delay of even a single day, has to be

accounted for.

Coming to the ground of illegality, the representative for the

respondent submitted that, the applicant did not raise the claim of

illegality or defect in the CMA Fl or in the affidavit filed in the CMA to

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support the application. He stated that, the applicant raised the issue

of illegality in her written submission while parties are not allowed to

introduce a new issue in their submission as submission is not

evidence. To strengthen his argument, he cited the case of Nyanza

Road Works Ltd. v. Yassin Mrisho & 4 Others, Misc. Appl. No.

8/2019 where it was held that, advocates submissions are not

evidence. In conclusion he prayed the application for revision filed in

this court by the applicant be dismissed and the CMA's ruling be

confirmed.

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 Having carefully considered the rival submission from the

parties and after going through the record of the matter and the

applicable laws the court has found the issues for determination in

this application is whether the Hon. Arbitrator erred in refusing to

grant the applicant extension of time to apply for an order of setting

aside the ex parte award. The court has found that, an application to

set aside an ex parte award issued by the CMA, is governed by Rule

30 (1) of the Labour Institutions (Mediation and Arbitration) GN. No.

64 of 2007 which states as follows:-

"Tin application by a party to correct or set aside an

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arbitration award in terms of section 90 of the Employment
and Labour Relations Act, shall be made within fourteen
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days from the date on which the applicant became aware of
the arbitration award.zz

The court has found in the matter at hand the ex parte award

which the applicant is seeking to be set aside was issued on 04th

September, 2018. The applicant stated in his affidavit that they

became aware of the ex-parte award on 16th November, 2018. The

counsel for the applicant argued that, the applicant filed in the CMA

the application for extension of time to file the application to set aside

the CMA's ex-parte award on 28th December, 2018. That being

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undisputed facts, the question is whether the applicant had sufficient

cause for the delay and if the applicant has accounted on each day of

the delay. It was the CMA finding that the applicant had failed to

show sufficient cause for the sought extension of time to be granted.

The court has found that, as stated by the Court of Appeal of

Tanzania in the case of Elias Msonde V. R, Criminal Appeal No. 93

of 2005 it is trite law that, for an application of extension of time to

be granted, the applicant must convince the court that he was

prevented by sufficient or reasonable or good cause and that the

delay was not caused or contributed by dilatory conduct or lack of

diligence on his part.

The court has found that, in the present application the counsel

for the respondent did not submit on the reason caused the applicant

to delay to file in the CMA the application to set aside the ex parte
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award within the time prescribed by the law. Instead of that he

challenged the ex parte award issued by the CMA and the CMA Fl

filed in the CMA. He argued that, there was improper service of

summons and there is illegality in the impugned award as the

respondent was awarded compensation for unfair termination while

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she was the employee with less than six months in the employment

and she was not covered by the principles of unfair termination.

The court is of the considered opinion that, as rightly argued by

the respondent's representative the said reason ought to have been

raised in an application for setting aside the ex-parte award which is

yet to be filed in the CMA and not in the application for extension of

time which was not granted. The court is joining hand the submission

by the respondent's representative that the applicant was required to

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adduce sufficient cause for the delay and account on each day of the

delay from the date of becoming aware of the ex parte award to the

date of filing the application for extension of time in the CMA as

stated in the case of Bushiri Hassan v. Latifa Lukio Mashayo

(supra).

However, the court has considered the illegalities alleged by

gib
the counsel for the applicant are in the impugned award, CMA Fl

used to initiate the dispute and the proceedings of the CMA and find

that, some of the stated illegalities are vivid on the face of the record

as alleged by the counsel for the applicant. The court has found the

issue of service or non-service of the summons to the applicant raised

a doubt as to whether the applicant was really and properly served as

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provided under Rule 6 (2) (a) and (b) read together with Rule 7 (2)

of the GN. No. 64 of 2007.

The court has arrived to the above view after seeing that, the

allegation raised by the applicant that, Joyce Kalyalya who is

indicated in the summons she received the summons on behalf of the

applicant is unknown to the applicant raised a great doubt if the

applicant was properly served but that allegation was not properly
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addressed by the Hon. Arbitrator before refusing to grant the
A. % W.
applicant extension of time she was seeking from the CMA. The court
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has found if the said reason was properly addressed, the Hon.

Arbitrator would have found there was no sufficient proof that the

applicant was dully served to the extent of refusing to grant them

extension of time to apply for an order of setting aside the ex parte

award.

The court has also considered other illegalities alleged are

appearing in the CMA FI in relation to when the cause of action for

the respondent arose for the purpose of determine whether the

dispute was filed in the CMA within or out of time and find that,

despite the fact that the stated illegality was not raised in the

affidavit filed in the CMA by the applicant but it is an important point

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of law which is supposed to be considered before refusing to grant

the application of the applicant. The alleged illegalities caused the

court to find that, if the applicant will not be granted extension of

time to apply for the order of setting aside the impugned ex-parte

award the stated illegalities will never be determined and justice will

not be done to the applicant.

The court has arrived to the above finding after seeing that, it

is a principle of law that, once the issue of illegality of an impugned

decision is raised and the court is satisfied is a point of sufficient

importance the court is required to use that point as a good cause for

granting extension of time. That principle of law has been stated in a

range of cases and one of them is the case of Principal Secretary,

Ministry of Defence and National Service V. Devram

Valambhia [1992] TLR 182, where it was held that:-

"In our view when the point at issue is one alleging illegality
of the decision being challenged, the court has a duty, even
if it means extending the time for the purpose, to ascertain
the point and, if the alleged illegality be established, to take
appropriate measures to put the matter and the record
right."

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 It was also stated by the Court of Appeal of Tanzania in the

case of Attorney General v. Consolidated Holding Corporation

and Another, Civil Application No. 73 of 2015, that:-

.contentious as to illegality or otherwise of the challenged

decision have now been accepted as a good cause for
extension of time."

Basing on the above stated principle of the law, the court has

found there was good cause for the CMA to grant the applicant

extension of time to apply for an order of setting aside the ex-parte

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award which the applicant alleges is tainted with illegalities. In the

premises the application of the applicant is granted. The ruling of the

CMA dated 28th June, 2019 is hereby quashed and set aside. The

applicant is granted fourteen (14) days from the date of delivery of

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this judgment to file in the CMA the application to set aside the ex-

parte award. It is so ordered.

Dated at Dar es Salaam this 28th day of January, 2022.

I. Arufani
JUDGE
28/01/2022

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Court: Judgement delivered today 28th day of January, 2022 in the

presence of Ms. Kambibi Kamugisha, advocate for the Applicant and

in the absence of the respondent who is well aware the matter is

coming today for judgment as she was informed by the Court Clerk

through the telephone. Right of appeal to the Court of Appeal is fully

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