burito emmanuel mwangomo vs sea cliff casino limited 2023 tzhcld 1406 8 september 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 168 OF 2023 (Arising from an Award issued on 15/6/2023 by Hon. Kokusiima, L, Arbitrator, in Labour dispute No. CMA/DSM/KIN/581/2020/240/2020 at Kinondoni) BURITO EMMANUEL MWANGOMO .............................................…. APPLICANT VERSUS SEA CLIFF CASINO LIMITED ..……………..…………………………... RESPONDENT JUDGMENT Date of last Order: 06/09/2023 Date of Judgment: 08/09/2023 B. E. K. Mganga, J. It is undisputed by the parties that applicant was an employee of the respondent since 2016. It is also undisputed that on 2nd June 2020, applicant was served with a suspension letter pending disciplinary enquiry with pay on allegation that he committed a misconduct namely being insolent (rude and disrespectful) to the Director of the respondent. It is said that, applicant communicated with the director of the respondent over the phone in riotous behavior which is against the rules of the respondent 1 and good employment relationship. That changed employment relationship between the two because, it was like putting particles of salt in a fresh wound. Feeling the pinch of suspension, on 21st July 2020, applicant filed Labour dispute No. CMA/DSM/KIN/581/2020/240/2020 before the Commission for Mediation and Arbitration (CMA) at Kinondoni claiming that he was unfairly terminated by the respondent. In the referral Form (CMA F1), applicant indicated that respondent had no valid reason for termination of his employment and that further that procedures for termination were not adhered to. At CMA, three issues were drafted namely, (i) whether respondent terminated employment of the applicant, (ii) if respondent terminated employment of the applicant, whether there were valid reasons for termination, (iii) whether fair procedures of termination of employment were adhered to, and (iv) to what relief(s) are the parties entitled to. On 15th June 2023, Hon. Kokusiima, L, Arbitrator having heard evidence of Burito Emmanuel Mwangomo (PW1), the applicant, and Alex Mpambichile (DW1) the only witnesses for the applicant and the respondent, issued an award in favour of the respondent that the dispute 2 was prematurely filed because respondent had not completed termination procedures. Applicant was aggrieved with the said award hence this application. In the affidavit in support of the application, applicant raised three (3) legal issues namely: 1. Whether in the presence of termination letter admitted in evidence and removal of applicant from the payroll, it was justifiable for the arbitrator to hold that the dispute was premature as there was no termination. 2. Whether it was proper for the arbitrator not to end endless investigation. 3. Whether it was proper for the arbitrator to shift a burden of proof on the amount of salary of the applicant. In opposing the application, respondent filed both the Notice of Opposition and the counter affidavit sworn by Alex Mpambichile. When the application was called on for hearing, Mr. Hamza Rajabu, Personal Representative, appeared and argued for and on behalf of the applicant while Mr. Arnold Luoga, Advocate, appeared and argued for and on behalf of the respondent. In arguing the 1st issue, Mr. Rajabu for the applicant submitted that, the arbitrator erred to hold that termination letter (exhibit B4) that was unsigned made the dispute to be premature. He argued further that, 3 exhibit B4 was signed by the respondent and had official stamp of the respondent. He added that, exhibit B4 shows that applicant was terminated on 15th July 2020. He went on that; the said exhibit was not signed by applicant because it purported to show that termination was by agreement while it was not true. He strongly submitted that, failure of the applicant to sign exhibit B4 did not invalidate his termination because, the said letter was not rescinded by the respondent. To support his submissions, he referred the Court to the case of Greenlight Hotel v. Theresia Herman Katondo, Revision No. 934 of 2019, HC (unreported) to prove that applicant was terminated. On the 2nd issue, the personal representative of the applicant submitted that, the arbitrator erred to dismiss the dispute without giving further directives allegedly, that the dispute was premature. He argued that, since there was a suspension letter pending investigation, the arbitrator was supposed to order respondent to continue to pay applicant his entitlements pending investigation. To cement on his submissions, he referred the Court to the case of Renalda Aloyce Mrema v. Epic Holdings Company Limited, Revision No. 62 of 2023, HC (unreported). 4 Mr. Rajabu, personal representative of the applicant did not submit on the 3rd issue. He concluded his submissions by praying that the CMA award be revised and set aside, respondent be ordered to pay applicant for the whole period he is under investigation and further that respondent be ordered to conclude investigation. Resisting the application on behalf of the respondent, Mr. Luoga, learned counsel submitted to the 1st issue that, exhibit B4 was signed by the respondent. He submitted further that, the contents of exhibit B4 shows that there was agreement to terminate employment of the applicant. In a U-turn move, counsel for the respondent submitted that, employment of the applicant was not terminated because applicant did not sign exhibit B4 to finalize their agreement to terminate employment. He went on that, applicant’s employment was only supposed to be terminated upon signing exhibit B4. He added that, up to now, applicant is an employee of the respondent but after filing the dispute at CMA, he (applicant) stopped to attend at work. learned counsel for the respondent strongly submitted that, the dispute was prematurely filed at CMA and that, the arbitrator was right to hold that there was no termination. 5 Responding to the 2nd issue, counsel for the respondent submitted that, the arbitrator was right because s/he had no right to issue orders different from the ones claimed by the applicant in the CMA F1. He added that, the arbitrator was supposed only to state that there is no termination, and that applicant is an employee of the respondent. Based on submissions of the parties, and before learned counsel for the respondent has concluded his submissions, I formed an opinion that exhibit B4 was key in determination of the application at hand. I, therefore, quickly perused the CMA record to see what exactly what was written. During my perusal, I noted that at the time applicant (PW1) was testifying, the arbitrator marked the said termination letter as exhibit B4 but there is no prayer by the applicant (PW1) to tender it as exhibit. More so, the record does not show that respondent was asked to comment thereon. With those observations, I asked the parties to address the court as to whether exhibit B4 was properly admitted in evidence and the effect thereof. Responding to the issue raised by the court, Mr. Luoga, learned counsel for the respondent maintained that applicant prayed to tender exhibit B4 and respondent was asked to comment and had no objection. 6 Learned counsel concluded that exhibit B4 was properly admitted in evidence and prayed the application be dismissed for want of merit. Responding to the issue raised by the court, Mr. Rajabu, personal representative of the applicant submitted that, the record does not show that applicant prayed to tender Exhibit B4. He added that, though applicant prayed to tender it as evidence, the arbitrator did not record. He submitted further that, the CMA record does not show that respondent was asked to comment on before admitting the said letter as exhibit B4. He concluded that, exhibit B4 was not properly admitted in evidence and added that, that is a fatal irregularity. Mr. Rajabu made a brief rejoinder that the arbitrator was supposed not only to state that the dispute was prematurely filed but was also supposed to give employment status of the parties. In disposing this application, for obvious reason, I will start with the issue raised by the court namely whether exhibit B4 was properly admitted in evidence and the effect thereof. The CMA record shows that on 24th October 2022 when Burito Emmanuel Mwangoma (PW1), applicant was testifying, the arbitrator recorded inter-alia: - 7 “…Baada ya hapo niliambiwa nilete barua ya maelezo. Naomba maelezo yapokelewe kama sehemu ya ushahidi. Mlalamikiwa: sina pingamizi. Tume. Maelezo ya mlalamikaji yamepokelewa kama kielelezo B3. Sgd Nilipigiwa simu ili niende ofisini nilipofika nikaambiwa niache kazi. Barua ya kuachishwa kazi imepokelewa kama kielelezo B4. Sgd Sikuwahi kuitwa kwenye kikao chochote. Naomba Tume inisaidie kupata stahiki zangu.” (Emphasis is mine). It is clear from the quoted evidence that, there was no prayer by PW1 to tender exhibit B4 and further that respondent was not asked to comment whether she had objection or not. It is also clear that, arbitrator recorded that PW1 prayed to tender exhibit B3 and asked respondent to comment thereon. It is evident from the above evidence that submissions by Mr. Luoga, learned counsel for the respondent that applicant prayed to tender exhibit B4, and that respondent did not have objection bears no support from the CMA record. I therefore hold that exhibit B4 was improperly admitted as correctly submitted by Mr. Rajabu, the personal representative of the applicant. I further agree with Mr. Rajabu that the irregularity was fatal and vitiated the whole proceedings. In the case of 8 Mhubiri Rogega Mong’ateko vs Mak Medics Ltd (Civil Appeal No. 106 of 2019) [2022] TZCA 452 the Court of Appeal held inter-alia that: - “…It is trite law that, a document which is not admitted in evidence cannot be treated as forming part of the record even if it is found amongst the papers in the record...” In Mhubiri’s case (supra the Court of Appeal quoted its earlier decision in the case of Shemsa Khalifa & Two Others v. Suleiman Hamed Abdallah, Civil Appeal No. 82 of 2012 wherein in it held: - “We out-rightly are of the considered opinion that, it was improper and substantial error for the High Court and all other courts below in this case to have relied on a document which was neither tendered nor admitted in court as exhibit. We hold this led to a grave miscarriage of justice.” In Mhubiri’s case (supra), the Court of Appeal concluded: - “Therefore, it is clear that the two courts below relied on evidence which was not tendered and admitted in evidence as per the requirement of the law. This omission led to miscarriage of justice because the appellant was adjudged on the basis of the evidence which was not properly admitted in evidence…” The Court of Appeal took a similar position in the case of Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal No. 295 of 2019) [2020] TZCA 1919, Mwanaarafa Abubakar Basheikh Mikidadi & Another vs Kassim Kamtwanje & Another (Civil Appeal 9 No. 151 of 2020) [2022] TZCA 157 and Mohamed A. Issa vs John Machela (Civil Appeal No. 55 of 2013) [2013] TZCA 490. In Machela’s case (supra), the Court of Appeal having quoted its decision in Shemsa’s case (supra) held: - “In this case, we are of the firm view that determining the rights of the parties on the basis of documents which were not admitted in evidence during the course of the trial was fatal to the trial and occasioned a failure of justice. We think we need not overemphasize what we take to be trite law that the judgment of any Court or quasi- judicial tribunal must be grounded on evidence properly adduced during the trial, otherwise it is not a decision at all. The purported decision becomes a nullity.” In the application at hand, the arbitrator based her decision on exhibit B4 that was not tendered and concluded that applicant filed the dispute prematurely before signing the said termination letter (exhibit B4) for mutual termination of employment. That was an error on part of the arbitrator. Guided by the above cited Court of Appeal decisions, I hereby nullify CMA proceedings, quash, and set aside the award arising therefrom and remit the CMA file to CMA so that the matter can be heard de novo before a different arbitrator without delay. Since what I have discussed 10 hereinabove has disposed the whole application, I will not discuss other issues raised by the applicant. Dated at Dar es Salaam on this 08th September 2023. B. E. K. Mganga JUDGE Judgment delivered on 08th September 2023 in chambers in the presence of Hamza Rajabu, Personal Representative of the Applicant and Arnold Luoga, Advocate for the Respondent. B. E. K. Mganga JUDGE 11