ephraim joram vs director tanga cement company limited 2024 tzca 154 4 march 2024

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE. 3.A., SEHEL. 3.A. And MWAMPASHI, 3.A.) CIVIL APPEAL NO. 235 OF 2020 EPHRAIM 30RAM........................... ............................... ....... APPELLANT VERSUS DIRECTOR TANGA CEMENT COMPANY LIMITED......................................RESPONDENT [Appeal from the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam] (Mzuna. J/i dated 5th day of August, 2019 in Revision No. 908 of 2018 JUDGMENT OF THE COURT 2nd May, 2023 & 4th March; 2024 MKUYE, 3.A.: This matter has a chequered history hence, it took us time to revisit the old iaws which were involved. It started when the appellant was initially, in 1980, engaged by the respondent, the Director Tanga Cement Company Limited, as a casual labourer. The engagement came to an end in 1984. On 1/1/1985, he was employed as a loader and continued in that capacity up to 21/6/1985 when the respondent attempted to terminate his employment on health issues. The appellant complained to the workers union leadership and upon a dialogue, the respondent rescinded her decision to terminate the appellant and re­ employed him as a loader as from July 1985. Meanwhile, according to the record of appeal the appellant sickness continued (sickness that developed in the course of employment - occupational hazards) and had to attend treatment at Tanga and Muhimbili Hospitals in Dar es Salaam. However, it seems that in the course, he was not paid his salaries. While that situation was going on, the appellant, later on, commenced a claim for payment of his benefits under his initial casual labour arrangement that had come to an end in December 1984 as depicted in a Report to the Magistrate as per section 132 of the Employment Ordinance, Cap 360 as amended by Act No. 5 of 1969 (Exh. APW11). Thus, in 2004, Employment Case No. 211 of 2004 was instituted at the Resident Magistrates' Court at Kisutu (Kisutu RM's Court) in which the appellant claimed for his terminal benefits including: payment of one month's salary in lieu of notice - TZS. 17,000.00; payment of salary for the month of June 1985 - TZS. 17,000.00; leave allowance for the period of five years from 1980 to 1984 - TZS. 12,966.00; payment in lieu of leave for the period of five years from 1980 to 1984 - TZS. 85,000.00; payment of 14 days in lieu of leave for 1985 - Tshs. 7,980.00; repatriation allowance - transport fare from Tanga together with his wife and four children to his place of domicile - Rombo Tarakea, Kilimanjaro - TZS. 49, 960.00; and transport of his 2 personal effects from Tanga to Rombo - Tarakea, Kilimanjaro - Tshs. 720,000.00, making a total claim of TZS. 899, 946.00. Upon a mutual agreement by parties, a settlement agreement was concluded in which the appellant was paid a sum of TZS. 1,349,946.00 with an additional sum of TZS. 450,000.00 which covered litigation costs as a full and final settlement of his claim in the suit (benefits under casual labour). According to the Deed of Settlement, the appellant was awarded the payment as was claimed comprising the following: "i. Payment o f salary for the month o f June; ii. Leave allowances for period o f five years from 1980 to 1984; Hi. Payment in lieu o f leave for five years from 1980 to 1984; iv. Payment o f 14 days in lieu o f leave for 1985; v. Repatriation allowance for his wife and four children to his place o f domicile; and vi. Transport o f his personaI effects from Tanga to Rombo Tarakea Kilimanjaro * It is noteworthy that in the Deed of Settlement registered on 21/3/2005 there was a clause to the effect that there will be no further claims. The matter ended there. 3 It is also worthwhile to note that, apart from the Employment case No.211/2004 referred to above, the appellant did also file Civil Case No.56/2006 in the High Court claiming for Tshs. 148,000,000/= against the respondent, being compensation for occupational diseases he had suffered in the course of his employment. As it was for Employment Case No.211 of 2004, this suit was also settled out of Court whereby the appellant was paid TZS.25,000,000.00 for that purpose. Meanwhile, it appears that the appellant was still not paid his salaries for the new position as a loader. Later on, in 2006, the appellant ignited the flames and complained to the Labour Officer in connection with his termination that came about in 2005 as stated by the appellant. Through a letter dated 12/10/2009, the Labour Officer referred the dispute to Ilala District Court. However, the District Court observed that it lacked jurisdiction as the law required that employment matters be dealt with by labour courts and not ordinary courts. Consequently, the matter was struck out. In 2010, the appellant referred the matter to the Commission for Mediation and Arbitration (the CMA) at Tanga, and the CMA made an observation that the dispute having emanated from the repealed labour 4 laws, in terms of the Employment and Labour Relations Act, (ELRA), it ought to have been referred to the CMA by the Labour Officer and not the appellant in person. As a result, again, the complaint was struck out. The appellant being dissatisfied with that decision, applied for review in the High Court vide Misc. Application No. 71 of 2013. The High Court in declining to exercise her jurisdiction on the matter on merit, remarked that the matter before the CMA had not been heard on merit. The appellant was advised to seek assistance from the Commissioner for Labour to refer it to the CMA. Upon follow up by the appellant, the Commissioner for Labour through the letter dated 4/9/2013 referred the matter to the CMA for adjudication. According to the said letter the complaint by appellant was based on unpaid salaries. The application was labelled CMA/DSM/MIS/42/13/743. Upon hearing both parties, the CMA found in favour of the appellant and awarded him TZS. 192,000,000.00 being salary arrears for 32 years and TZS. 15,500,000.00 being payment for leave not taken. In total, the appellant was awarded TZS. 207,500,000.00. It was also ordered that he be paid his terminal benefits. The respondent was not amused with this outcome. She successfully applied for revision in the High Court of Tanzania (Labour s Division) in which the award was reversed and reduced to twelve (12) months salary based on the rate of TZS. 500,000.00 that had been applied by the Kisutu RM's Court in the Deed of Settlement of 2004. As regards the issue of unpaid salaries, the High Court admitted that it had not been dealt with but found that since the appellant knew this issue when pursuing the other claim, he ought to have claimed it then. Also, the learned High Court Judge observed that under the doctrine of estopped, the appellant was not allowed to pursue it having regard to the fact that in the deed of settlement, he committed himself to bring no further claims thereafter. Aggrieved, the appellant has now appealed to this Court on three grounds of appeal as follows: 1. That, the Honourable court erred in law and fact for awarding the appellant less compensation o f 12 months salary despite the fact that he has not been paid salary from when he was reinstated up to his retirement 2, That, the Honourable court erred in law and fact in holding that the appellant is barred under the doctrine o f estoppel to claim for unpaid salary in view o f settlement deed entered in 2004, while in the settlement deed the issue o f unpaid salaries was not dealt with. 6 3. That, the Honourable court erred in law and fact for failure to analyse properly the evidence before him hence occasioned injustice to the appellant At the hearing of the appeal, the appellant was represented by Mr. Anthony Arbogast Mseke, learned counsel whereas the respondent had the services of Mr. Sinare Zaharan, also learned counsel and both filed their respective written submissions which they each sought to adopt to form part of their submissions. In elaboration to the grounds in both written and oral submissions, it was the submission of the appellant's counsel in the first ground of appeal that, it was wrong to award the appellant the compensation of 12 months salary while he had not been paid salaries from when he was reinstated in July 1985 up to the time, he retired in 2005. A respondent's management letter dated 22/7/1994 written to the appellant, admitting all the appellant's claims and agreeing to pay him was a confirmation that the appellant was a respondent's employee after the rescinded retrenchment in 1985 and his claimed entitlements. In that letter, he argued, it was specifically stated that, that decision would terminate after the appellant has been paid his salaries arrears whereupon the normal monthly payment procedure would take over as applies to his fellow workers. 7 In response, Mr. Zaharan supported the award of twelve months salaries issued by the High Court contending that, although the managements commitment in the letter dated 22/4/1994 might have given the appellant expectation of reinstatement, such reinstatement would not have been more than twelve months if the respondent would be willing to reinstate him. That, the amount of salary of TZS 500,000.00 which was the basis for the CMA's award had no proof, though the revisional court also relied on the same amount as per salary slip produced by the appellant. He was of the view that, the award by the revisional court was in accordance with the law when taking into account that the appellant was paid other terminal benefits including repatriation allowance. In any case, Mr Zaharan argued that there was nowhere in the record showing that the appellant had worked with the respondent since 1/7/1985 to entitle him to be paid the said salaries. The issue here is whether the appellant had been an employee of the respondent and if the answer is in the affirmative whether the award of twelve months salary was proper while the appellant's claim was for unpaid salaries; and a follow up issue is whether the appellant was not paid salaries for the later employment as a loader It is common ground that the appellant had been an employee of the respondent in two phases. In the first phase, he was employed as a casual labourer from 1980 to December, 1984. However, in January 1985, he was employed as a loader which was to be carried forward from his former casual employment. Although there was an attempt to retrench him in mid-1985, such attempt was rescinded through a letter titled "KUSITISHWA KUPUNGUZWA KAZI EPHRAIM JORAM IDARA YA PACKING PLANT" dated 17/7/1985. His latter employment was confirmed by a letter from respondent to appellant dated 22/4/1994 (APW7(a)) informing him that he will be paid his salary from July, 1985 at the rate payable to other employees in his department of packaging plant who were employed from 01/01/1985. As it is, the first phase employment was carried over following his re-employment as a loader in the second phase and therefore, no terminal benefits were paid before he took the new position. In this regard, the 1st limb of first issue is answered in the affirmative. Regarding the 2nd limb issue of the unpaid salaries, it is common knowledge that in 2004, the appellant instituted his claim at the Kisutu RM's Court vide Employment Case No. 211 of 2004 for payment of his terminal benefits in relation to his employment as a casual labourer which ended in December, 1984. The claimed terminal benefits were as 9 indicated earlier on. It is important to note that, in the said dispute there was no claim of unpaid salaries. The matter was concluded amicably whereby a deed of settlement was executed. Through the deed of settlement, the appellant was paid a total amount of TZS. 899, 946.00 as was claimed which covered one month's salary in lieu of notice; a salary for the month of June 1985; leave allowance for the period of five years from 1980 to 1984; payment in lieu of leave for the period of five years from 1980 to 1984; a 14 days payment in lieu of repatriation allowance; transport fare from Tanga together with his wife and four children to his place of domicile - Rombo Tarakea, Kilimanjaro; and transport of his personal effects from Tanga to Rombo - Tarakea, Kilimanjaro. In addition, he was paid TZS. 450,000.00 as costs for litigation. That was on 21/3/2005. According to the appellant, he retired from his latter employment on 18/3/2005 meaning that the initial claim was concluded amicably three days after his retirement from his employment. Apart from that, we note that, on 3/1/2006 the appellant initiated, through the Labour Officer, his claim for unpaid salaries from July, 1985 when he was reinstated up to the time, he retired in 2005. This claim did not relate to the former claim. Following the transition from the application of old labour laws to the new laws, the matter passed 10 through various judicial bodies until when it was observed that, such matter was to be lodged to the CMA through the Labour Commissioner. Thus, vide a letter with Ref. No. HA78/97/01/71 dated 4/9/2013, the Labour Commissioner referred the dispute to the Director of the Commission for Mediation and Arbitration in which essentially, the appellant's claim was for payment of salary arrears. The said letter reads in part: "MGOGORO WA KIKAZIWA BW. EPHRAIM JORAM DHIDI YA TANGA CEMENT LTD Tafadhali husika na somo hapo juu. Bw. Ephraim Joram ameieta malalamiko kwa Kamishna wa Kazi kuelezea aliajiriwa na Kampuni ya Saruji Tanga tangu tarehe 1/1/1985 kwa barua Na. TCC/A/41/VOL - X146, Kitengo cha Pack Plant akiwa loader. Aliendelea na kazi mpaka mwezi Januari 2006 ambapo aiiializimika kuwasiiisha maiaiamiko ya kutoiipwa mishahara yake ofisini na baadaye kuomba kuhamishiwa shauri lake ofisi ya kazi Dar es Salaam ambapo aiikuwa anapata matibabu hospitali ya Muhimbffl...maafisa kazi wa Tanga na Dar es Salaam, wote kwa pamoja walimtaka mwajiri kutekeleza maagizo ya kumllpa mafimbikizo ya mishahara yake Bw. Ephraim Joram...". [Emphasis added] ii From the above excerpt it is clear that, through the letter by the Labour Commissioner which referred the dispute to the CMA, the appellant's claim was for unpaid salaries or arears of his salaries resulting from his employment as a loader; the labour officers from Tanga and Dar es Salaam had once required the respondent to pay the appellant his arrears; and that the claim was initiated in January 2006. This was reiterated by the appellant in his evidence as shown at pages 193 -195 of the record of appeal that his claim was on payment of his salary arrears because in his testimony, he indicated that he had another claim relating to unpaid salaries from 1985 to the date he was testifying; and that when he complained to the labour office on 2/3/2006 which was after the settlement of the initial claim, the respondent had agreed and promised to pay his unpaid salaries for the whole period at the rate of TZS. 500,000.00 per month and other benefits. But again, through APW7(a) the respondent admitted a mistake that was committed by them and the appellant indicated that "but I am still sick if I will survive; I will make a follow up o f this matter because I started suffering due to the condition at work place." Of course, we are mindful of Mr. Zahran's argument that there is no evidence showing that the appellant was re-employed, but we think, 12 this issue has been sufficiently dealt with earlier on in the 1st limb issue. It is crystal clear from the record of appeal that the respondent's move to terminate him from employment was, upon intervention by the trade union, rescinded and was re-employed as a loader from July 1985. In this regard, we are settled in our mind that the appellant's claim which the CMA was called upon to resolve was that he had not been paid salary from when he was re-instated in July, 1985 up to the time, he retired in 2005 which was not covered in the Deed of Settlement of 2004 and registered in 2005. In addition, the fact that this claim was not dealt with was confirmed by the High Court through Hon. Wambura's decision. On the other hand, it is notable that the High Court's decision in revision based on the assumption that the appellant's claim originated from termination of employment which was not the case. It was of the view that a letter from the respondent which purported to reinstate the appellant gave him high expectations which in its view could not extend for more than twelve months if the respondent was willing to do so. It also relied on the case of Jackson Saul Lutemba v. Cooperative and Rural Development Bank (1996) Ltd, Civil Appeal no 70 of 2008 (unreported) in which the Court, after having referring to the provisions 13 of section 42(l)(a) of the Security of Employment Act, Cap 387 R.E. 2002 as was introduced by Labour Laws (Miscellaneous Amendment) Act, 1975 (Act No 1 of 1975) (the Security of Employment Act) held among other things, that where the court awards compensation in lieu of re-instatement the employee would be entitled to payment of compensation of twelve months salary remuneration if the termination is unfair. However, we think, the provisions of section 42 of the Security of Employment Act, were inapplicable in the circumstances where the appellant's claim was not on unfair termination or re-instatement as we shall show in the due course. In this regard, we find that the first ground is merited and allow it. In the second ground, the appellant's complaint is that it was wrong for the revisional court to hold that he was barred under the doctrine of estoppel to claim for unpaid salary in view of the deed of settlement entered in 2004 and registered in 2005, while in the said settlement deed, the issue of unpaid salaries was not dealt with. In elaboration, it was submitted that the matter was not res judicata since the issue of unpaid salaries had never been adjudicated on merit by any competent jurisdiction. Of course, we note that Hon. Wambura, J. had observed as an orbiter, while the matter was 14 improperly before her, that the matter seemed to be res-judicata but again, she said, she stood to be corrected by adducing evidence on it. She did not determine that it was res-judicata. On top of that, the learned Judge observed that the matter was not properly filed at CMA for want of the Labour Commissioners' assistance. So, apart from not being heard on merit, even if it was so heard, it would not have gone far since the matter was not properly filed even before the CMA. In any case, it is the appellant's further argument that even on the respondent's own averments in several occasions she recognized the appellant as her employee and that he was not paid his salaries. One of such occasion is through a letter dated 1/7/1985 which rescinded her decision to terminate him, after his termination from his casual employment in December, 1984 to which the initial claim of TZS 899,946.00 was premised. Also, by a letter of respondent to the appellant dated 22/4/1994 (APW 7(a) which emanated from the minutes in relation to unpaid salaries from July, 1985 together with medical expenses confirmed the same. In response, the respondent contended that the revisional court correctly held that the appellant was estopped to go against the deed of settlement which the parties had agreed upon the terms known by 15 themselves. She added that, one party cannot depart from that statement/declaration unless agreed by both parties. To fortify her stance, she referred us to the case of Trade Union Congress of Tanzania (TUKTA) v. Engineering Systems Consultants Ltd and Others, Civil Appeal No. 51 of 2016 [2020] TZCA 251. The respondent concluded that after obtaining the monies from the settled matter, the appellant should not have claimed for more money as it amounts to an abuse of the court process. Having examined the rival submissions, we find that the issue is whether the appellant was barred by the doctrine of estoppel to claim for unpaid salaries in view of the settlement deed entered in 2004. The doctrine of estoppel is governed under section 123 of the Evidence Act, Cap 6 R.E. 2022 which states as follows: "123. When one person has, by his declaration, act or omissionf intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or his representative shall be allowed, in any suit or proceedings between himself and that person or his representative, to deny the truth o f that thing': 16 Inthe case of Trade Union Congress of Tanzania Consultants (TUKTA) (supra), the Court adopted the decision in the case of Nairobi County Government v. Kenya Power and Lightning Company Limited [2018] KLR which considered the doctrine of estoppel and stated that: "... in the circumstances o f this case, the doctrine o f estoppel applies against the petitioner. The petitioner is estopped by the said doctrine from turning around and reneging on what it had agreed and committed itself into and even performed its part o f theagreement The respondent in reliance to the agreement and committed not only agreed to the arrangement and acted in reliance o f the same" Conversely, we do not have qualms with the principle of doctrine of estoppel and its application as shown above. In this case, as alluded to earlier on, there is no question that there was a settlement deed of 2004 in which the issue of terminal benefits relating to the appellant's former employment was dealt with. It is crystal clear from the wording of the settlement deed of 2004 which arose from the matters in controversy in Employment Cause No. 211 of 2004, that the appellant's claim was in respect of his entitlements while the appellant was a causal 17 labourer prior to his further engagement from January, 1985 as a loader. It means, therefore, that the issue of unpaid salaries for his position as a loader was not dealt with. We note that in its decision the revisional court applied the doctrine of estoppel on the ground that the appellant had already been paid out of the deed of settlement. It reasoned that, the appellant ought to have included the claim for such unpaid salaries because it was in his knowledge when pursuing the first dispute; and that the appellant had committed himself in the said settlement deed that there would be no any further claim(s). However, in our view that was not correct. This is so because, our reading of the said settlement deed reveals that it focused on a definite issue and it is in that respective matter that the appellant would be estopped from re-opening. In other words, the settlement deed was not to be a panacea in which another claim would be dragged into it as a revisional court tends to suggest that any other claim could have formed part and parcel of the settlement deed. In our view, the appellant was entitled to pursue his claim of unpaid salary under the new employment which was confirmed by a letter from respondent to appellant dated 22/4/1994 (APW7(a) informing him that he will be paid his salary from July, 1985 at the rate 18 payable to other employees in his department of packaging plant who were employed from 01/01/1985; together with medical expenses and other benefits which were not among the claims covered under the settlement deed. The claim under consideration was not connected in any way with the claims under the causal labour arrangement. In this regard, we agree with the appellant that he was not estopped by the settlement deed of 2004 in which case the 2nd ground of appeal is merited and we allow it. The appellants' complaint in the 3rd ground of appeal is that the revisional court erred in law and in fact for failure to analyse properly the evidence before it and, hence, occasioned injustice to the appellant. The basis of his argument is that the amount payable in 2005 was calculated at TZS 134,500,000.00 when salary was TZS. 500,000.00 while the prevailing salary at that time was TZS 2,500,000.00. On the other hand, the respondent is of the view that the appellant being a person who was required to prove his claim, failed to advance cogent arguments in support of appeal. He prayed to the Court to find that there were no arguments for appeal and dismiss it. 19 On our part, we think this matter should not detain us much, since a substantial part of this complaint has already been dealt with in the preceding grounds of appeal. Admittedly, the evaluation of evidence fell short of appreciating the true matters in controversy. The revisional court awarded the appellant 12 months salaries on the basis of high expectation at the salary rate which he received by the time of drawn order of Kisutu RMs' Court on 21/3/2005 being guided by section 42 of the Security of Employment Act, as amended. (Miscellaneous Amendment Act, 1975 (Act No 1 of 1975). Subsection (5) of the said section provides as follows: "(5) Where a re-instatement or re-engagement has been ordered under this section and the employer refuses or faiis to comply with the order (a) in the case o f an order made by a Board against which no reference has been made to the Minister, within twenty-eight days o f the order being made; or (b) in the case o f an order made by the Minister on a further reference to him, within fourteen days o f the order being made by the Minister, the employer shall be liable to pay 20 the employee compensation o f an amount equal to the aggregate o f- (i)the statutory compensation computed in accordance with section 36; and (ii)a sum equal to twelve months' wages at the rate o f wages to which the employee was entitled immediately before the termination of his employment or, as the case may be, his dismissal, and such compensation shall be recoverable in the same manner as statutory compensation, the payment o f which has been ordered under section 40" Our reading of this provision of the law reveals that it deals with the situation whereby the employer refuses or fails to comply with an order of the Board or Minister for re-instating or re-engaging an employee. That is when the employer may be liable to pay the employee a compensation as was awarded by the revisional court. In this matter, there was no order for re-instatement or re-engagement made by the Board or Minister that was refused or not complied with which could have culminated to the invocation of this provision. For that matter, it is our considered view that, had the revisional court observed that the bases of the appellant's claim was not for termination or dismissal and refusal by the respondent to re-instate or re-engage him in the 21 employment, it would not have awarded him a sum equal to 12 months salaries under section 42 of the Security of Employment Act as it did. To the contrary, it ought to have determined the matter on the basis of unpaid salaries which was before it. In which case, the award of 12 months7salary lacked legal basis in relation to the matter in dispute. We also agree as hinted earlier on that the revisional court awarded the compensation based on high expectation at the salary rate which he would have received at the time of the drawn order of Kisutu RM Court on 21/3/2005. At that time, the rate was pegged at TZS 500.000.00. In his testimony the appellant told the court on how he was unable to be availed with the salary rate which was paid to the employees of his cadre. Given the circumstances, we are of the view that, since the appellant failed to state the amount paid to his fellow employees who were employed since on 01/01/1985 for failure to get cooperation from them, it was quite proper to rely on the rate of TZS. 500.000.00 as was confirmed in by the CMA in calculating his unpaid salaries. After all, this amount was also relied upon by the High Court as the only reliable amount. We, thus, find this ground of appeal devoid of merit and dismiss it. Consequently; in view of the foregoing, we allow the appeal, quash the High Court judgment, set aside the decree thereof and uphold the award by the CMA. Given that the matter emanates from a labour dispute, we make no order as to costs. Order accordingly. DATED at DAR ES SALAAM this 29th of February, 2024. R. K. MKUYE JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL This Judgment delivered this 4th day of March, 2024 in the presence of Mr. Ephraim Joram Appellant appearred in person, and Ms. Norah Marah, learned counsel for the Respondent, is hereby certified as a true copy of the original. d. r. LYIMO I DEPUTY REGISTRAR : J&B COURT OF APPEAL 23