CIVIL APPEAL NO 429 OF 2022 CHIEF EXECUTIVE OFFICER ANOTHER VS JUSTS TIHAIRWA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM ( CORAM: MWANDAMBO. 3.A.. MAIGE, 3.A. And KHAMIS. J.A.) CIVIL APPEAL NO. 429 OF 2022 CHIEF EXECUTIVE OFFICER (DIRECTOR GENERAL) T.T.C.L.............................. ................ 1st APPELLANT THE ATTORNEY GENERAL................................................. 2nd APPELLANT VERSUS JUSTUS TIHAIRWA ................................ ................................ RESPONDENT (Appeal from the ruling and order of the High Court of Tanzania, Labour Division at Dar es Salaam) f Rwizile, J.T dated the 26th day of July 2022 in Miscellaneous Application No. 462 of 2021 JUDGMENT OF THE COURT Iffh & 22nd August, 2024 MWANDAMBO. 3.A.: The appeal, subject of this judgment, involves a narrow issue in relation to the interpretation of the decision of the High Court (Labour Division), henceforth, the Labour Court on the quantum of salaries payable to the respondent following termination of his employment on 31 May 2008. The facts giving rise to the appeal are largely not in dispute. They arise from employer-employee relationship between the appellant and respondent dating back from 1988 when the respondent was employed as a telephone operator. In the course of employment, he rose to the post of Senior Accounts Assistant which he held until his termination. The respondent's termination was triggered by his refusal to the appointment as Store Keeper which he was to serve in Musoma following restructuring of the appellant which gave rise to a new organisational structure in February but taking effect in May 2007.The respondent protested the appointment as store keeper to the appellant and subsequently through a labour dispute before the Commission for Mediation and Arbitration (the CMA) but the appellant remained resolute in its decision. At the end of it all, the appellant terminated the respondent on 31 May 2008. That termination was successfully challenged by the respondent before the CMA which found it unfair and ordered the appellant to reinstate the respondent in his position as "Accountant" in Dar es Salaam Region without loss of termination. Apparently, the appellant did not challenge the CMA's award. The appellant did not wish to reinstate the respondent. It opted to pay compensation equivalent to 12 months' salaries in pursuance of the provisions of section 40 (3) of the Employment and Labour Relations Act (the ELRA). Payment of 12 months' salaries along with other terminal benefits was based on his last salary of TZS 525,772.80 per month. Nevertheless, the respondent refused payment of the compensation insisting to be reinstated. Afterwards, he filed several applications for execution of the CMA award before the executing officer; Deputy Registrar of the Labour Court. A dispute arose in the process revolving around the enforcement of the award since the parties took opposing positions on it. Whereas the respondent pressed for reinstatement per the CMA award, the appellant maintained her position to pay compensation in lieu of reinstatement. The last in the series of applications for execution was Execution No. 143 of 2015. However, on 26 May, 2025, the Deputy Registrar dismissed that application allegedly for being res judicata which culminated into an application for Revision No. 339 of 2015 before a Judge of the Labour Court. Through that application, the respondent asked the court to order the appellant to strictly abide by the CMA award by reinstating him in his employment. Mindful of the dictates of the provisions of section 40 (3) of the ELRA providing an alternative to an employer to pay compensation in lieu of reinstatement, Mashaka, J (as she then was) declined to sustain the prayer for reinstatement. Having so held, the learned Judge dealt with the question whether the sum of TZS 21,622,669.90 paid to the respondent was in full and final settlement of the award. Naturally, since most of the terminal benefits depended on the salary payable to the respondent, the determination entailed ascertaining the applicable salary attached to the title he held before termination. In her judgment (henceforth to be referred to as the main decision), the learned Judge ruled that, since the respondent held the position of Senior Accounts Assistant, he was entitled to payment based on the salary in that position and not as Store Keeper. It is common cause that, that is the position the respondent was appointed to serve in Musoma which resulted in his termination. By way of clarity, the court ruled that, if the amount paid was pegged on the salary attached to the Store Keeper position less that what was payable to Senior Accounts Assistant position, the appellant should pay the difference from the date of termination and October 2011, to the date of final payment. The operative part of the decree extracted from the judgment runs as follows: "Application fo r revision p artiy succeeds." That decree became subject of interpretation by the same court before Rwizile, J in Misc. Application No. 42 of 2021. It is instructive that, rule 48 (8) of the Labour Court Rules, GN. No. 106 of 2007 (the Labour Court Rules) allows any party to the decision to apply to the court for a decision on any question arising as to the interpretation of any such decision. In the process of the interpretation, the learned Judge had to rely on copies of documents annexed to the respondents affidavit, in particular, a staff list dated 28 February 2007. This is so due to the appellant's failure to furnish her own documents to disprove the respondent's version. From the staff list, the learned Judge was convinced that the respondent fell in the title of a Revenue Assurance category falling under TTCL 6 salary scale with the corresponding monthly salary ranging from TZS 1,102,678.00 to 1,654,016.00 payable to Store Keepers, Assistant Accounts and Revenue Assurance Analysts. In the end, the learned Judge interpreted the main decision to mean that the respondent's entitlement for terminal benefits was to be pegged on a monthly salary of TZS. 1,654,016.00 less any payment already made. Aggrieved, the appellant preferred the instant appeal upon a memorandum raising four grounds of complaint. Ahead of the hearing, the appellant's learned counsel lodged written submissions in support of the appeal followed by the respondent in reply through Mr. Mashiku J. Sabasaba, learned advocate. At the hearing of the appeal. Messrs. "momas Mahushi, Boaz Msoffe and Ibrahim Kabelwa, all learned State Attorneys appeared to represent the appellant. Mr. Sabasaba who represented the respondent before the Labour Court did alike in the appeal. Before the hearing took off in earnest, Mr. Mahushi abandoned the 3rd ground of appeal and urged the Court to allow the appeal on the basis of the written submissions addressing the 1st, 2nd and 4th grounds of appeal. The issue in remaining grounds, and indeed the appeal revolves around the correctness of the interpretation of the main decision in relation to what was the actual salary payable to the respondent for the purposes of computing his terminal benefits, mainly, arrears of salaries and 12 months' salaries compensation. Essentially, the appellant's counsel maintained in their written and oral submissions that, contrary to the learned Judge, the respondent never attained the title of Revenue Assurance Analyst contrary to the finding in the impugned decision. Mr. Mahushi who addressed the Court was adamant that, the Labour Court misconstrued the staff list on the basis of which it relied in holding as it did that the respondent fell under TTCL 6 salary scale. It was argued by Mr. Mahushi that, that scale was applicable to Revenue Assurance Analysts, Store Keeper and Assistant Accounts none of which the respondent had attained immediately before his termination. It was further argued that, on the contrary, the correct salary attached the post of Senior Accounts Assistant was TZS. 525,772.80 and so there was nothing payable to the respondentafter the appellant had paid him TZS. 21,622,669.90. Mr. Mahushi criticised the impugned decision for varying the main decision instead of providing interpretation to give effect to the decree in that decision. For his part, Mr. Sabasaba was steadfast that, Rwizile, J correctly interpreted the main decision and arrived at the right conclusion which took into account the appellant's new organisational structure which placed the respondent in the position of Revenue Assurance Analyst falling under TTCL 6 salary scale attracting a maximum salary of TZS. 1,654,016.00 per month. Accordingly, the learned advocate urged that, there was nothing to fault the learned Judge for holding ashe did. He urged the Court to dismiss the appeal. Finally, in his rebuttal, Mr. Mahushi drew our attention to the staff list appearing at page 309 and 310 of the record of appeal showing that the respondent fell under TTCL 8 salary scale applicable to, amongst others, Senior Accounts Assistants a post he held immediately before termination of his employment. The learned State Attorney urged that, had the learned Judge examined the said document properly, he would have held that the respondent was entitled to a maximum salary of TZS. 946,364.00 in TTCL 8 salary scale and not one payable under TTCL 6 salary scale. Upon our examination of the counsel's rival submissions in the light of the issue for our consideration and determination, we find it necessary to preface our discussion with the principles governing interpretation of judgments. It is trite that, just as it is with interpretation of statutes, interpretation of judgments follows the same principles. Such principles were lucidly stated by the Supreme Court of South Africa in Plaslike Organsraad Van Bronkersprut v. Senekal (2001) 22 ILJ 602 (SCA) quoting with approval from Administrator, Cape and Another v. Mtshwagela and Others 1990 (1) (ACA) at 715 to which we subscribe thus: "... The Court's intention is to be ascertained prim arily from the language o f the judgm ent or order as construed according to the usual w ell- known rules. A s in the case o f any document, the judgm ent o r order and the Court's reasoning fo r giving it m ust be read as a whole order to ascertain its intention. I f on such reading, the m eaning o f the judgm ent o r order is dear and s unambiguous, no extrinsic fact o r evidence is adm issible to contradict, vary, qualify or supplem ent it Indeed, in such a case even the Court that gave the judgm ent or order can be asked to state what its subjective intention was in giving it But if any uncertainty in m eaning does emerge, the extrinsic circum stances surrounding or leading to the Court's granting the judgm ent or order m ay be investigated and regarded in order to cla rify it " From the foregoing, it is plain that, as a general rule, ascertaining the meaning in a judgment entails reading the judgment as a whole except where it becomes necessary to allow extrinsic evidence. There can hardly be any doubt that the learned Judge experienced some difficulties in appreciating the main decision by reading it as a whole without the aid of extrinsic evidence. That necessitated resorting to documents filed by the parties. Be it as it may, we agree with the appellant's counsel that the learned Judge misapprehended the contents of the staff list he relied on in his interpretation of the main decision. We say so having taken the view that what happened was beyond attributing meaning to the main decision but variation of it. There was no dispute that in the main decision, the court ruled that the respondent's terminal benefits was to be computed on the basis of a salary attached to the post of Senior Accounts Assistant. On the contrary, its interpretation by Rwizile, J had the effect of elevating the respondent to Revenue Assurance position he never occupied before termination of his employment. As a result, the respondent was given a salary scale far above his actual scale thereby increasing the appellant's liability in payment of terminal benefits. The net effect was, as it were, awarding the respondent a salary which he had never earned. It is pertinent that, rule 48 (8) of the Labour Court Rules requires that where the court makes an interpretation of a decision, the resultant decision on interpretation shall be deemed to be part of the main decision. In this case, it is plain that the impugned decision and the main decision are not talking to each other as indicated earlier. Under the circumstances, we find merit in the 1st, 2nd and 4th grounds of appeal. Accordingly, the impugned decision must be and is hereby set aside. By reason of the foregoing, we have to step into the shoes of the Labour Court and provide the much-sought interpretation of the main decision. We appreciate and share the same views with Mr. Mahushi that the decree extracted from the main decision is, with respect, problematic in that it did not solve part of the dispute revolving around 10 the execution of the CMA award after sustaining the appellant's position to compensate the respondent in lieu of reinstatement. Indeed, that decree is incapable of execution in the manner it is. Luckily, the learned State Attorney conceded in the end that, from the nature of things, the respondent's position in the new organisation structure (page 309 and 310 of the record) was that of Senior Accounts Assistant in TTCL 8 salary scale. It is plain from page 308 of the record that, the maximum salary in TTCL 8 salary scale was TZS. 946,364.00 per month. That is the amount the respondent should have been paid had the appellant reinstated him in compliance with the CMA award. Since that was not the case, the appellant was liable to pay the respondent his terminal benefits on account of unpaid salaries from the date of termination to the date of final payment and for 12 months' salaries compensation plus other incidents of termination based on TZS. 946,364.00; the maximum salary in TTCL 8. Consequently, the order of the Labour Court in Misc. Application No. 462 of 2021 is set side and substituted with an order that, payment of terminal benefits to the respondent shall be computed based on TTCL 8 salary scale of TZS. 946,364.00 less TZS. 21,622,669.90 already paid. li That said, the appeal stands allowed. Since the appeal emanates from a labour dispute in which costs are ordinarily not awardable, we order that each party bears own costs. DATED at DAR ES SALAAM this 22ndday of August, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The Judgment delivered this 22nd day of August, 2024 in the presence of Mr. Mkama Msalamu, State Attorney for the Appellants and Mr. Justus Tihairwa, the Respondent in person is hereby certified as a true 12