director of radio free africa vs thomas mwita 2009 tzhc 126 18 june 2009

IN THE HIGH COURT OF TANZANIA AT MWANZA APPELLATE JURISDICTION HIGH COURT CIVIL APPEAL NO. 9 OF 2008 (Arising from Nyamagana District Court Employment Cause No. 5/2004) DIRECTOR RADIO FREE AFRICA............APPELLANT VERSUS THOMAS MWITA .................................. RESPONDENT JUDGMENT 3 / 3 / 2 00 9 & 1 8 / 5/2 00 9 NYANGARIKA, J: The Respondent sued the appellant successfully before the trial court for payment of Tshs. 1,024,000/= being his salary arrears for the period between 1999 and February, 2003. It is from the Judgment of the trial court that the appellant has preferred the present .appeal. When the appeal was,.. Galled ..for hearing, the appellant was represented vby Mr, Gailati, learned counsel while the respondent appeared himself in person. ' ■ Mr. Gailati, learned counsel for the appellant argued ground 1 of the appeal separately but combined and argued grounds 2 and 3 together. On the first ground of appeal, the learned counsel submitted that the trial court has no jurisdiction. He said that since the respondent was not paid his arrears of salaries that amount to summary dismissal. He said that the trial court has no jurisdiction on summary dismissal. Arguing the second and third grounds of appeal, Mr. Gallati, learned counsel for the appellant submitted that there was no proof adduced by the respondent that he was at any point in time employed by the appellant. He said that the respondent failed to call, one, Mathew Lyangombe, an Ex- employee of the appellant to prove that he was an employee of the appellant but when the appellant called this ex - employee, he, denied that the respondent was an employee of the appellant. The learned counsel said that both Raphael Shirati and Mathew Mlekwa Lyangombe (ex-employees) refused before the trial court that the respondent was ever employed by the appellant. On the other hand, the respondent objected the appeal for lack of merit and supported the finding of the trial court. He repeated his evidence he gave before the trial court and prayed for the dismissal of the appeal. After hearing the appeal, I revisited the grounds of appeal, studied the trial court proceedings and judgment being appealed against and having heard the submissions of the parties in support of their respective cases, and having carefully gone the evidence on record and considered the same I have reached a settle view that there is nothing to default the judgment of the trial court. The suit before the trial court commenced by way of a labour report filed on 16/3/2004 by one, J. M. Lugakingira, Senior Labour Officer under S e ctio n 141 o f th e Em ploym en t A c t (Cap. 3 6 6 R E 2002) as amended. According to that report, the respondent was employed as a watchman by the respondent effective from 25/8/1995 to 27/2/2004 when / he was dismissed from his employment, of course, all these were denied by the appellant in the WSD but were considered together with the evidence tendered before the trial court. The learned counsel for the appellant has argued that since the respondent claim salary arrears, then, that amounts to summary dismissal. The same issue regarding jurisdiction surfaced before the trial court but was overruled in a ruling of 8/7/2005 although not typed. The trial court was satisfied that the dispute is not founded on summary dismissal but on arrears of wages for failure of the. appellant to pay statutory wages and therefore the matter was actionable in an ordinary court following a labour report filed before it. I am also not far from the finding of the trial court on this issue. Can really a claim of salary arrears amount to summary dismissal? I am sure that the learned counsel is aware that a summary dismissal is dismissal without notice. ' The pleadings and evidence on record does not support that the respondent was dismissed without notice as alleged. Page 16 of the record of proceedings of the trial court show that when the respondent was cross - examined by the appellant he said as follows: ... I sta rte d to w atch a t K h im ji... I kn o w m y e m p lo ye r w as R ad io Fre e A fric a . There is one d riv e r c a lle d S tephen w ho k n o w th a t I w as b e in g p a id b y R ad io Free A fric a . The se co n d is S am w el s /o M aw esho w ho g ave m e n o tice o f d is m is sa l from w ork..." Under Section 36(3) of Employment Act (Cap. 366 RE 2002), Notice of termination may be either verbal or written. I am aware that summary dismissal has its own procedure as held in the case of Ja ck so n R w eyem anu 5 o th e rs v. G. M. M arin e D ivisio n , M w anza, H ig h C o u rt C iv il R e visio n No. 1 o f 2001 (un repo rted ). 4 In the case at hand, I am satisfied by the finding of the trial court that the dispute was not based on summary dismissal but on failure of the appellant (employer) to pay the respondent (employee) wages. Therefore the 1st ground of appeal that the trial court has no jurisdiction has no merit and I dismiss it. Next, I will examine the allegation that there was no proof that the respondent was employed by the appellant. The trial Court found that the respondent worked with the appellant although he was not given a letter of employment and was receiving salary. The trial court disbelieved PwII, one, Mathew Mlekwa Lyangombe, an ex - employer of the appellant as he has an interest to serve. The trial court held that this witness did not want to let down the appellant who was his ex - employer. ^ Instead, the trial court believed the evidence given by the respondent to be telling the truth upon observing him while giving evidence and that is why he volunteered to call Mathew Mlekwa Lyangombe, an ex - employee of the appellant, as. a witness, although he gave evidence against him. In my view, apart from calling witnesses the appellant was duty bound to produce before the trial court, the record of employment of all employees to satisfy the court that the name of the respondent does not appear as required under S e ctio n 4 0 (1), (2 ) & (3 ) o f the em ploym ent A c t (Cap. 3 6 6 R E 2002). Also, the record show that PwII, one, Mathew Mlekwa Lyangombe and, Dwl Raphael s/o Shiratu did to tender any evidence either by way of a letter or contract of employment or salary slip or otherwise to show that they were ever employed by the appellant at any point in time. They only gave oral evidence in the trial court. I have an advantage of looking at all the records of the trial court especially in an application titled Misc. Civil Application No. 20 of 2008 where there is a Counter Affidavit of the respondent. On para 5 of the said counter Affidavit there is copy of COTWU (T) membership attached as Annexture A which was not disputed showing that the respondent was an employee of the appellant. Ct I am not saying that membership card is an evidence tendered in the trial court but think it assisted the respondent to be accepted by the Labour Officer who presented the report before the trial court. Under S e ctio n 4 0 (5 ) o f Em ploym en t A c t (C ap 3 6 6 R E 2002) where a dispute arises and an employer fails to produce in court the record of employment as evidence, the statement of employees as to the 6 nature of the terms and conditions of such employment are receivable as evidence unless the employer satisfy the court otherwise. Before the trial court, the appellant (employer) as I have already said did not bring, the records of employment of all the employees showing that the name of the respondent was not there. PwII, Mathew Mlekwa Lyangombe and Dwl, Raphael s/o Shiratu never adduced before the court any proof eg. letter of employment, salary slip etc to show that they were ever employed by the appellant. Therefore there is no wonder that the respondent was also employed by the applicant without a letter, salary slip, contract etc as PwII and Dwl. I may say at this juncture that least respondent had a copy of COTWU (T) membership card issued on 23/5/2002 which indicates that he was employed by the appellant (RFA) which made him to be accepted by ttxe labour before the dispute was reported to the trial court. His acceptance by the labour office was not disputed by the appellant before the trial court. The trial court listened and observed the respondent, and finally believed him that it was true that he was employed by the appellant. 7 The trial court disbelieved the evidence PwII who is said to be an ex - employee of the appellant on the ground that he has an interest of his own to serve. The trial court had a better advantage of examining and assessing the witnesses while giving evidence in court rather than this court which only read the transcript from the record and therefore can rare interfere with such a finding. Therefore the evidence on record proved on a balance of probabilities that the respondent was employed by the appellant and I find no reason to interfere with the finding of the trial court. For the reasons I have tried to demonstrate, I hereby dismiss the appeal with costs. K. M. Nyangarika JUDGE Date: 18/6/2009 Coram: Hon. K. M. Nyangarika, J. Appellant: Gallati Advocate Respondent: Present in person B/C Rose Order: Judgment read today in the present of Mr. Gallati, learned Advocate for the appellant and the Respondent in person. Right, produce and time of appeal full explained to both parties. K. M. Nyangarika JUDGE 9