global publishers general enterprises limited vs fransisca jeremiah 2023 tzhcld 1375 25 july 2023

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 101 OF 2023 (Arising from an Award issued on 27/01/2023 by Hon. G.M. Gerald, Arbitrator in Labour dispute No. CMA/DSM/KIN/184/2020 at Kinondoni) GLOBAL PUBLISHERS & GENERAL ENTERPRISES LIMITED ………. APPLICANT VERSUS FRANSISCA JEREMIAH ………………....……………………..…….….. RESPONDENT JUDGMENT Date of last Order: 22/06/2023 Date of Judgment: 25/07/2023 B. E. K. Mganga, J. Brief facts of this application are that, applicant is the producer and distributor of newspapers namely; Champion, Sport extra and Ijumaa. Prior to 2019, applicant was producing and distributing six newspapers namely; Champion, Sport extra, Uwazi, Risasi, Amani and Ijumaa. It is undisputed that, on 1st August 2018, applicant entered unspecified period contract of employment with Francisca Jeremiah, the above named respondent. The two enjoyed their employment relationship until on 1st September 2019, when applicant served respondent with a notice of retrenchment due to financial constraint. Being served with the said letter, on 24th September 1 2019, respondent wrote a letter to the applicant seeking clarification on some of the issues mentioned in the notice of retrenchment. It is also undisputed that, on 19th October 2019, respondent wrote a letter informing applicant that she will be on maternity leave from 1st November 2019 to 1st February 2020 and in fact, she went on maternity leave. On 5th February 2020, when respondent returned to office, she was informed that she has been retrenched. Respondent was unhappy with that information as a result, on 4th March 2020, she filed Labour dispute No. CMA/DSM/KIN/184/2020 before the Commission for Mediation and Arbitration (CMA) at Kinondoni complaining that applicant terminated her employment unfairly. On 27th January 2023, Hon. G.M. Gerald, Arbitrator, having heard evidence of one witness from each side and submissions made by the parties, issued an award that termination was substantively and procedurally unfair. The arbitrator ordered applicant to reinstate the respondent without loss of remuneration. Applicant was aggrieved with the said award hence this application for revision. In support of the Notice of Application, applicant filed the affidavit affirmed by Abdallah Mrisho Salawi containing five issues namely:- 2 i. Whether the Arbitrator properly evaluated the (sic) evidence in admission given by the Respondent in Labour Dispute No. CMA/DSM/KIN/184/2020. ii. Whether the Arbitrator properly evaluated the (sic) evidence given by the Respondent in Labour Dispute No.CMA/DSM/KIN/184/2020. iii. Whether the Arbitrator legally exercised his powers in determining Labour Dispute No. CMA/DSM/KIN/184/2020. iv. Whether the Award is tainted with material irregularity. v. Whether the Arbitrator was correct to order reinstatement of employment. When the application was called on for hearing, Ms. Melania Mashaguri, Advocate, appeared and argued for and on behalf of the Applicant while Mr. Heriel Munisi, Advocate appeared and argued for and on behalf the Respondent. Arguing the 1st issue, Ms. Mashaguri, learned advocate for the applicant submitted that, respondent admitted to have refused to receive notice of retrenchment. Counsel went on that, in refusing to receive the notice for retrenchment, respondent denied herself the right to be heard because the notice was a key process for retrenchment. She added that, in refusing to accept the notice, respondent prevented applicant to proceed with retrenchment and thereafter respondent rushed to CMA to file the dispute for unfair termination. Counsel submitted that, in the award, the arbitrator erred to award the respondent without considering that respondent blocked retrenchment process. 3 Arguing the 2nd issue, counsel for the applicant submitted that, the arbitrator did not accord weight evidence of the applicant. Counsel for the applicant submitted further that, DW1 testified on behalf of the applicant that, applicant was in economic crisis that caused her to suffer loss. She went on that, applicant produce and sale newspapers and that, at the period in consideration, many newspapers were returned unsold. Counsel for the applicant concluded that, the arbitrator did not give weight evidence of DW1 that was not contradicted. Arguing the 3rd and 4th issues together, counsel for the applicant submitted that, arbitrator exercised his discretionary powers illegally. She submitted further that, arbitrator considered a letter written by the respondent dated 24th September 2019 that was not tendered in evidence. She added that, respondent tendered her ID (exhibit F1) and a letter for maternity leave (exhibit F2) only. Counsel argued that, if evidence relating to the letter dated 24th September 2019 is expunged, there will be no evidence to support the case for the respondent. Counsel prayed CMA proceedings be nullified and order trial de novo because arbitrator relied on the document/letter that was not admitted in evidence. In support of her prayer, counsel cited the case of Mhubiri Rogega Mong’ateko v. Mak Medics Ltd, Civil Appeal No. 106 of 2019, CAT (unreported). Counsel for 4 the applicant added that, exhibits F1 and F2 were not tendered because the record does not show that respondent prayed to tender exhibit F1 and F2. When probed by the court as to whether applicant’s exhibits (exhibit GPL 1 collectively) were properly admitted, counsel for the applicant submitted that DW1 prayed to tender those documents as exhibit but the arbitrator did not ask respondent to comment whether she has objection or not. She therefore concluded that exhibit GPL1 for the applicant and F1 and F2 for the respondent were improperly admitted and does not qualify to be evidence to be relied on by this court. Arguing the 5th issue, counsel for the applicant submitted that, the order of reinstatement is not proper because applicant is facing economic crisis. She submitted further that, respondent was notified the whole situation as per exhibit GPL1. Counsel for the applicant concluded her submissions by praying that the application be allowed, the whole CMA proceeding be nullified, the award arising therefrom be quashed and set aside. Responding to the 1st issue, Mr. Munisi learned counsel for the respondent, submitted that, there is no evidence to prove that respondent refused to participate in retrenchment process. Counsel for the respondent 5 submitted further that, DW1 testified that applicant followed all procedures for retrenchment of the respondent. Regarding the 2nd issue, counsel for the respondent submitted that, there is no tangible evidence that was adduced by the applicant apart from the notice of retrenchment. On the 3rd issue, counsel for the respondent submitted that, after perusing the CMA record, he has noted that all exhibits were not properly tendered and admitted. Counsel for the respondent concurred with the prayer to nullify CMA proceedings, quash the award arising therefrom and order trial de novo. On the 4th issue relating to economic difficult allegedly facing the applicant, counsel for the respondent submitted that, applicant did not adduce evidence to prove that she was in economic difficult. I have examined evidence of the parties in the CMA record and considered submissions made by counsel on behalf of the parties in this application. In disposing this application, I will start with the 3rd ground in which applicant has complained that the arbitrator used exhibit GPL 1 that was not admitted in evidence. I entirely agree with submissions of both counsel in relation to the 3rd ground that, exhibits were not properly admitted in evidence hence it was not proper for the arbitrator to rely on 6 improperly admitted exhibits. CMA proceedings shows that, when David Mtima Fundikila(DW1) was testifying in chief, he prayed to tender retrenchment notice and respondent’s letter. The record shows as hereunder:- “Naomba Tume ipokee Notisi ya kupunguza w/kazi na barua ya mlalamikaji Fransisca ambazo zote zimepokelewa kama kielelezo GPL1 Collectively”. English translation of the quoted sentence is that, I pray to tender retrenchment notice and a letter by Fransisca, the complainant all admitted as exhibit GPL1 collectively. The quoted sentence is not free from confusion. The sentence means that DW1 prayed to tender retrenchment notice and a letter written by the respondent that was already admitted as exhibit GPL1 collectively. If that is the case, there was no need to pray to tender exhibit that has been already admitted in evidence. But the record shows that DW1 was the first witness to testify, as such, there was no prior prayer to tender those exhibits and in fact, there was no prior order to admit them in evidence. Therefore, when DW1 prayed to tender those documents as exhibits, the arbitrator right away, referred to those documents as exhibit GPL 1 collectively as if they have been admitted in evidence. The arbitrator did not ask the respondent whether she had objection for the said documents to be admitted as evidence or not. More 7 so, the arbitrator did not admit those documents in evidence but simply marked them as exhibit GPL1 collectively and indicated so in the proceedings. That was an error on part of the arbitrator. In fact, in so doing, arbitrator denied the respondent the right to be heard on the said documents. On the other hand, when Francisca Jeremia Mitondwa(PW1), the respondent was testifying in chief, her identity card(F1) and a letter seeking maternity leave found their way in the CMA record. Evidence of applicant (PW1) reads in part:- “Mimi niliajiriwa mwaka 2011 tarehe 01/08/kama Meneja Msambazaji wa magazeti Zone ya Ilala…ushahidi wangu ni kitambulisho cha kazi (Kielelezo F1) na mshahara wangu ulikuwa 320,000/=…Mimi nilikuwa mjamzito nakaribia kujifungua. Nilipofuatilia tena bila kupewa majibu ndipo tarehe 19/10/2019 niliandika barua ya kuomba likizo ya uzazi amabayo ningeanza tarehe 30/10/2019. Barua ya kuomba likizo ya uzazi imepokelewa kama kielelezo “F2 mbele ya Tume hii na kwamba mimi sikuwahi kuitwa wala kuambiwa chochote…” The quoted evidence of the respondent (PW1) shows that respondent did not pray to tender F1 and F2 as part of her evidence. It is clear also that, the herein applicant was not asked to comment whether she had objection or not. More so, both F1 and F2 were not admitted as exhibit. In the award, arbitrator considered and relied on both F1 and F2 to 8 hold that termination of employment of the respondent was unfair. Since there was no prayer by respondent to tender both F1 and F2 as part of her evidence and applicant was not asked to comment on F1 and F2, I hold that both F1 and F2 were improperly admitted as exhibits. From the foregoing, I entirely agree with both counsel that arbitrator relied on documents that were not admitted in evidence. It is my considered opinion that, GPL1 collectively on one hand, and F1 and F2 on the other hand, cannot be acted upon by this court as evidence of the parties in this application because they were improperly admitted in evidence. The Court of Appeal had an advantage of discussing a similar issue in the case of Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal No. 106 of 2019) [2022] TZCA 452 wherein it was held:- “…It is trite law that, a document which is not admitted in evidence cannot be treated as forming part of the record even if it is found amongst the papers in the record...” In Mhubiri’s case (supra), the Court of Appeal quoted its earlier decision in the case of Shemsa Khalifa & Two Others v. Suleiman Hamed Abdallah, Civil Appeal No. 82 of 2012 wherein in it held:- “We out-rightly are of the considered opinion that, it was improper and substantial error for the High Court and all other courts below in this case to have relied on a document which was neither tendered not admitted in court 9 as exhibit. We hold this led to a grave miscarriage of justice.” In Mhubiri’s case (supra), which is also a labour case like the application at hand, the Court of Appeal concluded:- “Therefore, it is clear that the two courts below relied on the evidence which was not tendered and admitted in evidence as per the requirement of the law. This omission led to miscarriage of justice because the appellant was adjudged on the basis of the evidence which was not properly admitted in evidence…” The Court of Appeal took a similar position in the case of Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others (Civil Appeal No. 295 of 2019) [2020] TZCA 1919, Mwanaarafa Abubakar Basheikh Mikidadi & Another vs Kassim Kamtwanje & Another (Civil Appeal No. 151 of 2020) [2022] TZCA 157 and Mohamed A. Issa vs John Machela (Civil Appeal No. 55 of 2013) [2013] TZCA 490. In Machela’s case (supra), the Court of Appeal having quoted its decision in Shemsa’s case (supra) held: - “In this case, we are of the firm view that determining the rights of the parties on the basis of documents which were not admitted in evidence during the course of the trial was fatal to the trial and occasioned a failure of justice. We think we need not overemphasize what we take to be trite law that the judgment of any Court or quasi-judicial tribunal must be grounded on evidence properly adduced during the trial, otherwise it is not a decision at all. The purported decision becomes a nullity.” 10 Guided by the above cited Court of Appeal decisions, I hold that arbitrator erred to consider documents that were not tendered and admitted as evidence. I therefore hereby allow the 3rd ground and nullify CMA proceedings, quash and set aside the award arising therefrom. Since the 3rd ground has disposed of the whole application, I will not consider other grounds raised by the applicant. I therefore remit the CMA record to CMA so that the dispute can be heard de novo before a different arbitrator without delay. Dated at Dar es Salaam on this 25th July 2023. B. E. K. Mganga JUDGE Judgment delivered on 25th July 2023 in chambers in the presence of Melania Mashaguri, Advocate for the Applicants and Francisca Jeremia Mitondwa, the Respondent. B. E. K. Mganga JUDGE 11