20140618 TZHC Mbeya3

IN THE HIGH COURT OF TANZANIA AT MBEYA PC. CRIMINAL APPEAL NO. 18/20 13 (From Mbozi District Court, Criminal Appeal No. 312001. Original Criminal Case No. 33612000 of Tunduma Primary Court) E1MANUEL IC.ABENGA ........................................... APPELLANT VERSUS 'I'}iE R.EPIJBI.JIC .................................................... RESPONDENT JUDGMENT A.F. NGWALA, J.: The appellant together with two others had been found guilty of Robbery with violence by the Tunduma Primary Court. He appealed to the District Court of Mbbzi which upheld both the conviction and sentence by the said lowest court. Upon hearing the appeal, the learned State Attorney did not admit substantially the five grounds of appeal which I have also found to lack merit. The 6 1h grounds of appeal that the charge against him was not proved by the prosecution side, namely the complainant was not contested by Ms. Prosista the learned State Attorney who pointed the weaknesses in prosecution side as the conviction was based on the evidence of the co-accused, the 1st accused person one Kenneth Haonga. I agree, this is purely the evidence of an accomplice which in practice requires that a person should not be convicted on the uncorroborated evidence of an accomplice. This is in line with the Page 1 of 2 provisions of Section 33 (1) of the Law of Evidence Act, [Cap. 6 R. E. 2002] which reads: - "When two or more persons are being tried jointly for the same offence or for different offences arising out of the same transaction, and a confession of the offence or offences charged made by one of those persons effecting himself and some other of those persons is proved, the court may take that confession against that other person." Having analysed the evidence on the two records, I am satisfied that the conviction of the appellant cannot safely and reasonably stand. The conviction and sentence are quashed. The 2nd accused person, the appellant Emmanuel Kabenga is acquitted. The appeal is allowed. The appellant should be released from the prison forthwith unless.he1d for another lawful cause. ..: # ~ A.F. N ! al ' Judge 17/09/2014 Page 2 of 2 13 IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT MBEYA LABOUR REVISION NO 65 OF 2013 BARCLAYS BANK TANZANIA LIMITED............. APPLICANT VERSUS. ( KOMBO ALLY SINGANO ............... .......,.,.,.. RESPONDENT JUcGEMENT 1110612014 & 1810612014 Aboud,J The äpplicãion is made under section 91(1)(a) and (2) (a) (b) and 94(1)(6)(i) of the Employment and Labour Relation Act, No. :6 of 2004, Rule 24(1),(2)(3) (11) and 28(1)(a),(b),(c),(d), (e) and (2) of the Labour Court Rules G.N No. 106 of 2007. The applicant calls upon this court to call for the record and revise the proceeding and set aside the award of the Commission for lIBarcIays Bank T a n z a n i a Limitec Is Kombo Ally Singano Mediation and Arbitration (CMA), in the CMA/MBY/131/2010 at Mbeya dated 11/03/2011. The brief facts led to this application are; on 07/01/2008 the respondent was employed by the applicant as retail bank manager, his service of employment came to an end on 03/09/2010 for the reasons that the respondent failed to adhere to the procedures set by the applicant in depositing cash at BOT. Following such termination the respondent referred the matter to the CMA where he succeeded and CMA awarded him Tsh 87,887,2001= be the remedy, for unfair termination. Dissatisfied with the CMA award the applicant filed this revision. During the hearing parties were represented, the applicant was represented by of Mr. Tazan, learned counsel while Mr. Akyoo, learned counsel epresented the respondent. Arguing the application Mr. Tazan submitted that the complaint filed at the CMA was time bared hence the arbitrator hadno jurisdiction to entertain it. He said it is apparent from the award at page 1 that the dispute referred at the CMA on 4/10/2010 and termination occurred on 03/09/2010, so the complaint was filed two days after expiration of the time prescribed in law, that is to Rule 10(1) of the Labour Institution 2 I8 arcIays B a n k Tanzania.LimitecI Vs Konibo AI!y SH1BanQ (Mediation and Arbitration) Rules GN 64 of 2007 which required the dispute for unfair termination be filled within 30 days from the date of termination. Secondly the applicant counsel submitted that the arbitrator failed to evaluate the evidence adduced before him as the law required the employer to prove that termination was due to valid reasons and followed a proper procedure. He said the evidence on record reveals that the respondent was charged for failure to follow procedures set by the applicant in carried out his duties which caused loss of Tsh 1,239,000/= and damaged company reputation. He further submitted that among the reasons which may justify termination is conduct of the employee this is provided under Rule 9(4).(a) of the Employment and Labour Relations (Code of. Good Practice) GN 42 of 2007. Therefore respondent's failure to adhere to the BOT circular would have led to cançeUatiOn of license of the applicant; he supported his argument with the case of G4 Security Servke (T) Ltd vs PetërMwakpesile, Revson No 109 of 2011 It is the submission of Mr. Tazan that the applicant followed a fair procedure while terminating the respondent as investigation was dully conducted and the respondent was asked to produce 3I6rc 1 avs Bank T a n z a n i a Limited Vs Kornbo Ally SinCano evidence at the disciplinary hearing. He said after the finding of the disciplinary committee the respondent who was also given right to appeal against the decision of the committee. Therefore the arbitrator was wrong to hold that there was no fair procedures that were followed by the applicant He said also arbitrator failed to consider the CMA Fl as the respondent claimed procedural impropriate and not substantive as he decided. Lastly Mr. Tazan submitted that the arbitrator erroneously award the respondent forty months as compensation. He said arbitrator did not observe and comply with Rule 32 (5) of GN 67 of 2007 which provide for conditions to guide the arbitrator when ordering compensation. He' supported his argument with the case of UDA v. 3uDius Abdu, revision No0 225 of 2010 HC Labour Divisii.àn Dar es S&aam (Unreported). In rspone from the applicant submission Mr. Akyoo submitted that the complaint was referred at the CMA on 04/10/2010: and the respondent was terminated on 03/09/2010. On 08/09/2010 the respondent appealed against the decision of the committee to the high level management but the appeal was not conducted due to undisclosed reasons. He said even -if the appeal procedure can be ignored still the respondent filed his 4 IBarcIavs Bank Tanzania LirnitecJ Vs Kombo AHy Siriano complaint in time because 02/10/2010 was Saturday and, on 03/10/2010 was Sunday, therefore according to Rule 3(1) of the GN 64 of 2007 weekends are excluded to file the complaint at the CMA. He submitted that Rule 4(1) of GN 64 of 2007 exclude the first day includes the last day to file or refer a complaint so all that considered the 30th day and will be on 05/10/2010; Hence the complaint was properly referred at CMA. In regard to the second ground Mr. Akyoo, learned counsel submitted that there was no sufficient investigation conducted to trace the lost moneys which is contrary to rule 13(5) of the GN. 42 of 2007. Also he said the respondent cannot count all the monies as was not supplied with enough facility like counting machines. As to the third ground he submitted that the disciplinary committee was composed by only two person that is a Human Resource Manager (HR Manager) and Manager whom their decision was biased as the HR Manager represented the employer and he was a member. On the ground that the respondent complained at the CMA only on procedural issue and not substantive. Mr. Akyoo said it is not correct as CMA F.1 clearly reflected reasons for termination. 5 IBrcIvs B-jrik Tanzania Liniited Vs KocnEio AHy Sngano Li Inregard to the last ground Mr. Akyoo submitted that the arbitrator was right to award 40 months as compensation because the respondent occupied a senior post. Had said after the arbitrator found the termination was unfair had a discretion to award any amount considering the gravity and circumstance of each case. He supported his argument with the case of SOdetra (SPRL) Ltd v. Njellu Mezza & Another, Revision No. 207 of 2008 HC Labour Division, Oar es Salaam (Unreported). Hence prayed the application be dismissed. In rejoinder Mr. Tazan submitted that the investigation was duuy conducted and found the respondent was not adhering to the applicant regulation. Also he said the respondent had the right to appeal against the decision of the committee but he did not do so. Hence he prayed the application be allowed. I have gone through both parties long submission and court record aweIl as relevant laws with eyes of caution and find the following issue need to be determined by this court, first whether the complaint was referred at the CMA out of time, secondly whether the termination was substantively and procedurally unfair, and lastly whether the award was properly procured by the arbitrator. GIBarclays Bank T;inzana Liuiitacf Vs Konibo.AHy Singano Starting with the first issue, whether the complaint was referred at the CMA out of time it is cursory glace clear under Rule 10 of the Labour Institution (Mediation and Arbitration) El Rules GN 64 of 2007 that I quote; "Dispute about the fairness of an employee's termination of employment must be referred to the commission within thirty days from the date of termination or the • date that the employer made a final decision to terminate or uphold the decision to terminate." The records show that the resondent was terminated on 03/09/2010 and on 08/09/2010 therespondent appealed against the decision of the discipIinary committee. On 21/09/2010 the applicant acknowledge receipt of the appeal letter and the hearing was scheduled to be conducted on 27/09/2010, but for the reasons not disclosed to the court the appeal was not conducted then the respondent decided to refer his complaint to the CMA on 04/10/2010. Therefore in my view time started to run against the respondent from 27/09/2010 when the applicant failed to conduct the appeal this is because the respondent exhausted the internal disciplinary settlement mechanism before he referred his complaint to CMA. however assuming the time started to run from the termination date, 03/09/2010 to 7IBarcays Bank Taniania Liuited Vs Konbo AHy Sngano Li 04/10/2010, the court fully agreed with the respondent counsel that the first day and weekend is excluded in counting the days pursuant to Rule 4(1) and (2) of the Labour Institutions (Mediation and Arbitration) Rules, GN 64 of 2007 which provide that; - "4(1) for the purpose of cakulating any period of time in terms of these Rules, the first day shall be excluded and lust day shall be included. 4(2) the last day of any period must be excluded if it falls on a Saturday, Sunday or public holiday." In our instant case the list daiought to be on 02/10/2010. I took my time to go through the'2010 calendar and found that on 02/10/2010 was Saturday and 03/10/2010, therefore on the basis of the provision cited above those days are excluded in computing tirnelirnitof 30 days. That be the case I agreed with counsel for the respondent that the complaint was properly referred at 'the CMA the ground found unmerited. :As to the second issue whether the termination was substantively and procedurally fair, the record and submission by the applicant shows the respondent was terminated for failure to comply with the applicant regulation as a retail manager the act which caused a loss of monies and damaged the applicant 81Barcavs Bank Tanzania Limited Vs Kombo AHy Singano employer is unfair if the employer fails to prove that the employment was terminated in accordance with a fair procedure. Also Rule 13 of the Employment and Labour Relation (Code of Good Practice) GN 42 of 2007 provide very clear the procedure for termination of employment. First and foremost this Rule requires the employer to conduct an investigation to ascertain whether there are grounds to conduct disciplinary hearing. Rule 13(1) of the GN.42 of 2007, says; V "The employer shall conduct- an investigation to ascertain whether there are grounds for a hearing to be held." And where the hearing is to be conducted, the employer shall notify the employee of the allegations using a form and language that the employee can reasonably understand; this is clearly provided under Rule 13(2) of the GN.42 of 2007. More so after investigation the law under Rule 13 (5) of the GN , 42 of 2007 provides that; "Evidence in support of the allegation against the employee shall be presented at the hearing, the employee shall be given a proper opportunity at the hearing to respond to the allegations, question any witness called by the employer and to call witness if necessary." 10Baiclys Bank Tanzania Limited Vs Kombo Ally Singerto Also Article 7 of the Termination of Employment Convention (ILO) No, 158 of 1984 provide for the fair procedure before the termination of an employee, the article provide;- 'The employment of a worker shall not be terminated for reasons related to the workers conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity." After a through perusal of the submissions, CMA record and this court record and considering what I have gathered in line with the legal requirement for procedural fairness principle in termination of employment, I have this to say, that it is crystal clear the disciplinary hearing committee of the applicant violated the provision of section 37(2) (1) of the Employment and Labour Relation Act, and Rule 13 (5) of GN.42 of 2007 which forms the basis for fair disciplinary hearing in my view. On the record I find investigation was conducted by the director, the respondent was fully informed of the allegation but there is no report which was tabled :during the hearing at the disciplinary committee level to prove that the investigation was conducted. The respondent claimed that there were no investigation conducted and absence of such proof is violation of the law which renders the whole 11Barclys Bank Tanzania Limited Vs Kombo All' Singano process illegal. This is the position of this court in the case of Fredrick Mzambwa v. Tanzania Ports Authority, Revision No. 220 of 2013 HC Labour Division at Dar es Salaam (Unreported) As to the last issue whether the award Was properly procured the law that is Section 40 of the Employment and Labour Relation Act, No. 6 of 2004 provide dearly the remedy once the termination of employment adjudged unfair among others be order for reinstatement, re-engagement or compensation and other entitlements which includes, allowances, overtime, leave, notice, severance pay, gratuity and others depending on parties agreement which is provided under section 43 of the Act. However it is at the discretion of a Judge or Arbitrator to give award that is considered just and fair depending on circurnStance of.. each case, though is restricted to comply by what is or. ae.indicated in CMA Fl as was decided in the case of Power Roads (1) LTD vs. Haji Omari Ngomero, Revision No:36àf 2007, where, Hon. Mandia, J (as he then was) held that; there is no provision in the Employment and Labour Relation Act, or in the Labour Institution Act, particularly section 20 on powers of Mediators and Arbitrators allowing 121Rarclavs Bank Tanzania liniited Vs Kornbo Ally Sinano Mediators and Arbitrators to make changes suo moto, on what appears on the referral form. The additions made by the arbitrator are therefore illegal and set aside...." In our instant case the respondent in his CMA Fl prayed the following remedies that is reinstatement without loss of salaries or compensation pursuant to Section 40(1) (c) of the Act, leave, severance pay, repatriation allowance and other remedies the court deemed just to grant. The arbitrator awarded 40 months compensation which means the arbitrator exercised his discretionary powers vested to him by law. However, this court found that the arbitratoraLcipatJfte. Iuture.events..of the respondent_and awarded 40 months wtch was j'stspeculation as the arbitrator did not justify why he., decided to award that amountafter he refused to award the amount TshsJ11886,320/on the basis that was mere speculation. I therefore revised the award of 40 months to read 12 months compensation. This court also found the respondent is entitled to be paid 15 0% house allowance from the date of termination to the date Of this order be one of his entitlement provided in his employment contract, leave, notice, and severance pay. As to the repatriation aflowance there is no evidence provided on place of 13IBrcI3/s 8nk Tonznia LmTed '/s KQfltjC A ! I y Singsrio recruitment therefore the court found difficult to grant such prayer. In the result the application if found to have no merit and is hereby dismissed save for the award revised as indicate herein above. It is so ordered, c I.D.ABOUD JUDGE 18 / 06/2014 14IBaclays Bank Tanzania Limited Vs Combo Ally SinCano I e Date: 18/06/2014 Coram: Hon. I.D.Aboud / Judge Applicant: Absent For Applicant: Respondent: Present For Respondent: C/C Subira (1 Order: Judgement delivered on 1/6/2014 in presence of the respondent in person and the applicant is absent. / c I.D.A8O(JD JUDGE 18/06/2014 1 51Bar:Iays B a n k Tanzania Limited Vs Kombo IIy Singeno