deus sam vs jumuiya ya watumishi maji uchira 2023 tzhc 18952 12 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LABOUR DIVISION AT MOSHI LABOUR REVISION NO. 20 OF 2022 (Arising from Labour Dispute No. CMA/KLM/MOS/ARB/33/2021 of the Commission for Mediation and Arbitration at Moshi) DEUS SAM …………………………………………………. APPLICANT VERSUS JUMUIYA YA WATUMIAJI MAJI UCHIRA ……...... RESPONDENT JUDGMENT 15/06/2023 & 12/07/2023 SIMFUKWE, J. The applicant herein Deus Sam referred to as the applicant, filed the instant application against the Award of the Commission for Mediation and Arbitration in Labour Dispute No. CMA/KLM/MOS/ARB/33/2021 of Moshi dated 29th July, 2022. The application was preferred under Rule 24 (1) (2) (a) (b) (c) (e) and (f), (3)(a)(b)(c) and (d) and Rule 28 (1)(a)(c)(d) and (e) of the Labour Court Rules, GN No. 106 of 2007. The application was supported by an affidavit sworn by the 1 applicant, which was contested by the counter affidavit sworn by Ms Grace Emmanuel, Principal Officer of the respondent. The Applicant prayed for the following orders: 1. That, this Honourable Court be pleased to revise the Ruling in labour dispute number CMA/KLM/MOS/ARB/33/2021 by quashing and setting it aside. 2. That, this Honourable Court be pleased to order this matter to be heard on merit by the CMA. 3. That, this Honourable High Court be pleased to grant any other reliefs that shall be deemed fit and just to grant. The historical background of the dispute is that the applicant was employed by the respondent as an Accountant on 01st day of February 2016 for a contract of three years fixed term and in renewable basis. He was receiving a monthly salary of Ths 690,000/= and allowance of Tshs 50,000/=. On 25th day of September 2020, the applicant received a letter of suspension from the respondent for a period of six days for the purpose of investigating the allegations towards his accounting indifferences. On 01st October, 2020 the applicant received another letter extending the period of his suspension for unspecified period of 2 time. Then, on 20th May 2021, he received a letter from the respondent terminating his employment contract on the ground that he had committed three offences which were: embezzlement and abuse of office, falsifying documents (loan agreement and employment contract) and disobeying the orders and summons of the employer. The applicant alleged that Article 18 (1) (vi) of the Constitution of the respondent states that all the disputes that arise within the association shall be determined by ‘Kamati ya Maji ya Jamii’ and that all the contracts will be entered and terminated by the said committee pursuant to Article 31 of the same Constitution. That, he was never called to attend the disciplinary committee meeting which decided to terminate his employment contract. On 27th May 2021 the applicant referred the dispute to the Commission for Mediation and Arbitration. That, after filing opening statements, the Hon. Arbitrator raised a point of law suo moto on the validity of his application considering the appearance of one Muhsin Kilua a Government Solicitor from the office of the District Executive Director of Moshi. The issue was whether the applicant was a public servant and whether the CMA had jurisdiction to determine the matter which the Government has been sued. That, after considering submission of both parties, the 3 Commission for Mediation and Arbitration ruled that the CMA had no jurisdiction to determine the matter. That, the applicant was supposed to refer the dispute to the Public Service Commission. The applicant faults the said decision of the CMA on the reason that he did not sue the Government and he had never been employed by the Government in his life. He raised the following legal issues: a) Whether the applicant was a public servant. b) Whether the respondent is a government entity. c) Whether the CMA had jurisdiction to determine the matter. The application was argued by way of written submissions. Ms Mary Kway, learned counsel argued the application for the applicant, while Mr. Yohana Marco, learned State Attorney contested the application for the respondent. Submitting on the first issue on whether the applicant was a public servant, on the outset Ms Mary Kway cited section 3 of the Public Service Act, Cap 298 R.E 2019 which defines a Public Servant as follows: “Public Servant for the purpose of this Act means a person holding or acting in a public office.” 4 That, a public office is also defined under the same section as follows: “Public service office for the purpose of this Act means; (a) A paid public office in the United Republic charged with the formulation of Government policy and delivery of public services other than (i) A parliamentary secretary (ii) An office of a member of a council, board, panel, committee or other similar body whether or not corporate, established by or under any written law; (iii) An office emolument of which are payable at an hourly rate, daily rate or term contract; (iv) An office of a Judge or other judicial officer; (v) An officer in the Police Force or Prisons Service;” (Emphasis added) The learned counsel for the applicant was certain that the respondent in this case falls under the exception of public office provided under subsection (ii) and (iii) above as the respondent is a community based water supply organization established under the Written Laws (Water Supply and Sanitation) Act No. 5 of 2019 and the employees are paid at a term contract as stated in the preamble of its Constitution and 5 the employment contract which is Annexure A1 and A2 to the affidavit of the applicant. It was stated further that the applicant was an employee of the respondent and not the government. Thus, the applicant is not a public servant or employee of the government. On the second issue whether the respondent is a government entity, Ms Mary submitted that a government entity is that which is affiliated, generally by the government ownership or control, something which is different to this matter as the respondent is neither owned nor controlled by the Government. The learned counsel supported her argument by citing section 32 of the Water Supply and Sanitation Act (supra) which gives room for the people to establish a community- based organization for the purpose of supplying water to the public. That, according to this section, the established organization becomes a body corporate with powers among others to sue and be sued. That, section 32 of the above cited law reads: “The community organization shall in that capacity have perpetual succession and a common seal and shall have power, in and by its corporate name, to sue and be sued and, in the exercise and performance of its powers and functions, do and permit all such 6 things as may lawfully be done or permitted by a body corporate in furtherance of its objectives under this Act.” Based on the above quoted provision, Ms Mary submitted that in this matter, the respondent is a community-based organization established under the above law for the purpose of supplying water to the residents of Uchira and Koresa as per the Preamble of its Constitution which is Annexure A1 and all the activities of the Committee are regulated by the committee itself and not by the government. That, even the employees are paid by the committee and not the government as per Annexure A1 at page 26 and 27. Ms Mary submitted further that, in their counter affidavit the respondent failed to show terms of payment of salaries to the employees, which Vote Code or check number from the government Treasury is being used to pay the applicant. That, the same proves that the respondent is not a government entity, but rather a community-based water supply association with powers among others to sue and be sued. On the third issue on whether the CMA had jurisdiction to determine the matter, Ms Mary stated that jurisdiction of the CMA has been provided by different labour laws including the Employment and Labour Relations Act, Cap 366 R.E 2019 and the Labour 7 Institutions Act. That, one of the functions of the CMA is to determine any dispute referred to it by arbitration if a labour law require the dispute to be determined by arbitration as per section 14 (1) (b) (ii) of the Labour Institution Act. Section 88 (1) (b) (i) of the Employment and Labour Relations Act (supra) provides that, the dispute includes a complaint over the fairness or lawfulness of an employee’s termination of employment. That, the nature of dispute which was referred by the applicant to the CMA was on termination of employment, thus the CMA had jurisdiction to determine the same. The learned counsel buttressed her point with the case of Fair Competition Commission vs Michael Damian Shilla, Labour Revision No. 424 of 2021, High Court, Labour Division at Dar es Salaam, which at page 17 held that: “There are categories of employees, though in the public service they are not public servants. These are as stated under section 3 (a) (iii) of the Public Service Act. This category of employees are (sic) paid hourly, daily or are in term contract. I have to comment that, such category of employees are (sic) not bound by section 32A of the Public Service Act. This means they have to take measures including filing disputes before the CMA.” (Emphasis added) 8 Basing on the above authorities, Ms Mary submitted that the CMA had jurisdiction to determine this matter because, first, the dispute between the applicant and the respondent is on termination of employment. Second, the applicant is not a public servant and third, the respondent is not a government entity. The learned counsel for the applicant distinguished the case of Tanzania Posts Corporation vs Dominic A. Kalangi, Civil Appeal No. 12 of 2022 cited by the Hon. Arbitrator. That, the appellant is a public corporation whose Chairman of the Board of Directors is appointed by the president and its functions are regulated by the Ministry responsible among other things for postal matters and the laws that govern them include the Public Service Act. Ms Mary observed further that, instead of questioning the ownership and operation of the respondent, the Honourable Arbitrator was supposed to question the validity of audience of one Muhsin Kilua a Government Solicitor. In her conclusion, Ms Mary reiterated that in this matter the applicant is not a public servant because the respondent is not a public office as defined under section 3 of the Public Service Act. Therefore, the CMA has jurisdiction to determine the matter. 9 In his reply submission, Mr. Yohana learned State Attorney, stated that no law was cited by the learned counsel for the applicant to back up her assertions that the respondent is not a government entity. Secondly, that this issue had already been settled by this court when the applicant’s counsel had objected the respondent to be represented by the office of the Solicitor General on the ground that the respondent is not the government entity. Thus, this court is rendered functus officio. In the alternative, Mr. Yohana submitted that the respondent is the government entity, hence a public service office according to section 3 (b) of the Public Service Act (supra), section 33 (2) of the Water Supply and Sanitation Act (supra) and section 26 of the Written Laws (Miscellaneous Amendment) Act (supra) read together with section 16 of the Government Proceedings Act, Cap 5 R.E 2019. The learned State Attorney quoted the cited provisions as follows: Section 3 (b) of the Public Service Act: “In this Act, unless the context otherwise requires…….” Public service office” for the purpose of this Act means……any office declared by or under any written law to be a public service office.” Section 33 (2) of the Water Supply and Sanitation Act: 10 “Notwithstanding the provisions of section 32 (3) and section 33 (1), where a water scheme operated or to be operated by a community organization is developed through grant, donation or investment by community or Government, the ownership of such scheme shall be public.” Section 26 of the Written Laws (Miscellaneous Amendments) Act (supra): “The Principal Act is amended in section 16, by adding immediately after subsection (3) the following:” (4) For the purposes of subsection (3), the word “Government” shall include a Government, ministry, local government authority, independent department, executive agency, public corporation, parastatal organization or a public company established under any written law to which the Government is a majority shareholder.” Elaborating the above quoted provisions, Mr. Yohana asserted that section 3 (b) of the Public Service Act defines a public service office to be any office declared as such under any written law. That, the same brings us to section 33 (2) of the Water Supply and Sanitation Act which provides that, a water scheme operated by a water organisation, such as the respondent herein, if developed by the Government such 11 scheme becomes public hence, a public office. That, Paragraph 10 of the respondent’s counter affidavit shows that all the facilities of the scheme run by the respondent were constructed by the Government which fits squarely into section 33 (2) of the Water Supply and Sanitation Act. That, the assertion has not been controverted by the applicant by not filing reply to counter affidavit. Thus, the respondent is a Government entity. Regarding the issue of whether the applicant is a public servant or not, the learned State Attorney left it to the court to decide. Mr. Yohana concluded his submission by praying that this application be dismissed. In her rejoinder, the learned counsel for the applicant submitted inter alia that for an entity to be a government entity, the majority shareholder must be the government. That, in the case at hand, the respondent’s counsel not only did he fail to prove that the government owns majority shares but also the learned counsel failed to prove if at all the government owns shares to the respondent. So, he cannot say that the respondent is a government entity as the respondent is not run by shares. Concerning section 32 (2) of the Water Supply and Sanitation Act cited by the learned counsel for the respondent, Ms Mary submitted that it is not even proved that, the facilities of the scheme run by the 12 respondent were indeed developed by the Government. That, the section states that, if the scheme operated is developed by the Government, then the ownership of such scheme shall be public. It is not stated that, it shall be owned by the Government. In support of her assertion, Ms Mary subscribed to Black’s Law Dictionary, 7th Edition by Brian A Garner at page 1242 where the term Public has been defined to mean: “1. Relating to an entire community, state, or a nation. 2. Open or available for all to use, share or enjoy.” (Emphasis added). On the strength of the above definition, the learned counsel for the applicant averred that since the respondent is a community-based organisation, the same relates to the community members who are the members of Uchira and Koresa, and the service is available for members of Uchira and Koresa to use, share and enjoy. She concluded by reiterating her submission in chief that the respondent is not a Government entity thus the CMA had jurisdiction to determine the dispute between the applicant and the respondent. Based on the above submissions of both parties, affidavit in support of the application, counter affidavit and the CMA record, I am of considered opinion that issues for determination are: 1. Whether the respondent is a government entity? 13 2. Whether the applicant is a public servant? 3. Whether the CMA has jurisdiction to determine the dispute between the applicant and the respondent. Starting with the first issue on whether the respondent is a government entity; pursuant to its Constitution, the respondent was registered as a Community Based Water Supply Organisation under section 34 (1) of the Water Supply and Sanitation Act (supra) and Regulation 16 (1) of Water Supply and Sanitation Regulations of 2010. The respondent operates under the Rural Water Supply and Sanitation Agency (RUWASA). Under section 32 (3) of Water Supply and Sanitation Act, the respondent has powers inter alia to sue and be sued. Thus, for it to be a government entity, either its shares must be owned by the government or it must be controlled by the government as rightly observed by Ms Mary for the applicant. Section 40 (1) and (2) of the Water Supply and Sanitation Act (supra) provides that: “40 (1) The accounts of community organisations shall be audited in accordance with the Public Audit Act. 14 (2) RUWASA shall in respect of the community organisations, have the duty to inquire into any matter regarding the performance of activities and management of the funds of such organisations in relation to water supply services.” Section 43 (1) and (2) (d) (f) and (g) of the same Act provides that: “43 (1) RUWASA shall be responsible for development and sustainable management of rural water supply and sanitation projects. (2) Without prejudice to the generality of subsection (1) RUWASA shall: (d) monitor and evaluate performance of community organisations in relation to rural water supply and sanitation services; (f) provide financial and technical support to community organisations for major maintenance of rural water schemes; (g) provide support to community organisations in relation to management, operation and maintenance of rural water supply schemes;” 15 The above quoted provisions explicitly show that, community-based water supply organisations, including the respondent herein are managed and controlled by Rural Water Supply and Sanitation Agency (RUWASA) which is the government Agency. Therefore, it can safely be concluded that the respondent herein, is the government entity. On the second issue Whether the applicant is a public servant, the learned counsel for the applicant was of considered view that the applicant is not a public servant in accordance with section 3 (a) (iii) of the Public Service Act (supra). Mr. Yohana learned State Attorney left it to the court to decide whether the applicant was a public servant or not. I concur with the learned counsel for the applicant and subscribe to the cited authority that since the applicant was employed on fixed term contract, he is not a public servant. Despite the fact that, I have ruled that the respondent is a government entity, not everyone working with the government is a public servant. It depends on the terms of employment. In this case, the learned counsel for the respondent did not dispute the fact that the applicant was employed by the respondent on a fixed term contract of three years. Moreover, the remuneration of the applicant is not under any government scheme (salary scale). In the circumstances, the applicant cannot be termed as a public servant. 16 Since the second issue has been answered in the negative, it goes without saying that the CMA had jurisdiction to determine the dispute between the applicant and the respondent. Having determined the second and third issues in favour of the applicant, I am absolutely convinced that the learned Arbitrator misdirected himself by finding that it had no jurisdiction to determine the dispute between the applicant and the respondent. That said and done, I hereby revise, quash and set aside the findings of the CMA. The matter is ordered to be remitted back to the CMA for determination of the same on merit. Application granted as prayed with no order as to costs. It is so ordered. Dated and delivered at Moshi this 12th day of July 2023. X S. H. SIMFUKWE JUDGE Signed by: S. H. SIMFUKWE 12/07/2023 17 18