HALIMA RAJABU JUMA V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 12904 OF 2024 (Arising from an Award issued on 09/02/2024 by Hon. Mbeyale, R, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/R.397/18/18/2022 at Ilala) HALIMA RAJABU JUMA..………………………………1ST APPLICANT RUKIA RAJABU ALLY……………………………………2ND APPLICANT VERSUS MODERN SAMA HOTEL LIMITED……………………. RESPONDENT JUDGMENT Date of last Order:27/8/2024. Dated of Judgment: 06/9/2024. B. E. K. Mganga, J. Brief facts of this application are that, on 10th April 2018, Halima Rajabu Juma and Rukia Rajabu Ally, the abovenamed applicants filed Labour dispute No. CMA/DSM/ILA/R.397/18/18/2022 before the Commission for Mediation and Arbitration henceforth CMA at Ilala complaining that respondent terminated their employment on 4th April 2018 unfairly. On fairness of procedures, applicants indicated in the referral form (CMA F1) that, there was no consultation meeting and that they don’t know the criteria used by the respondent. On fairness of reason, applicants indicated that, respondent had no reason to terminate their employment. Based on the foregoing, applicants indicated in the CMA F1 that they were claiming to be paid TZS 1 7,520,000/= being notice pay, salary arrears, leave arrears, salary compensation for 12 months. Together with CMA F1, they also filed an application for condonation (CMA F2). The application for condonation was dismissed as a result, they filed Revision No. 115 of 2022. On 08th September 2022, this court (Hon. A.K. Rwizile, J, allowed the application and ordered the dispute to be heard at CMA. On 9th February 2024, Hon. Mbeyale, R, arbitrator, having heard evidence of the parties, dismissed the dispute on ground that the parties agreed to terminate employment contracts. Applicant was aggrieved with the said award hence this application for revision. In the affidavit in support of the application, applicant raised four (4) grounds namely: - 1. That the arbitrator erred both in law and facts for failing properly to evaluate and consider evidence adduced by the parties. 2. That, the arbitrator erred both in law and facts for issuing an award that is not supported by evidence adduced by the parties and for failure to realize lies presented by the applicants. 3. That, the arbitrator erred both in law and facts for failure to summarize, evaluate and record key issues presented by the parties and further erred for not giving reasons for the decision of the award. 4. That, the arbitrator erred in both in law and facts for issuing an award out of time provided under the labour laws. 2 Opposing the application, respondent filed both the Notice of Opposition and the counter affidavit sworn by Joel Samwel Mataba, her principal officer. When the application was called on for hearing, Mr. Michael Mgombozi, from TUPSE, a Trade Union, appeared and argued the application on behalf of the applicant while Mr. Yuda Dominic, advocate appeared and argued the application on behalf of the respondent. Mr. Mgombozi opted to argue the aforementioned grounds of revision generally. Arguing in support of the application, Mr. Mgombozi submitted that, the arbitrator dismissed the dispute on ground that there was an agreement to terminate employment and that, applicants had no claims. Mr. Mgombozi submitted further that, there was no agreement between the parties, but applicants were only served with the letter (exhibit P1 and P7) showing that they have agreed to terminate the contract. He added that, applicants were not paid entitlements shown in exhibits P1 and P7 but the arbitrator in the award held that applicant were paid vide Cheque No. 51 dated 2nd May 2018. He went on that; the said cheque was not tendered at CMA and that it was written 20 days after termination. He strongly submitted that; applicants were not paid terminal benefits. 3 It was also submitted by Mr. Mgombozi on behalf of the applicants that, for an agreement for termination of employment to be valid, there must be minutes led to the said agreement. To support his submissions, he cited the case of Stanbic Bank (T) Ltd. v. Sofia Majamba, Civil Appeal No. 31 of 2020, CAT (unreported) and Hemedi Omary Ally (Arm of Abdallah Omary Ally v. M/s. Bakhresa Food Products (T) Ltd, Revision No. 212 of 2018, HC (unreported. It was also submitted on behalf of the applicants that, in termination letter, respondent indicated that termination was due to operation requirement, but she did not comply with the provisions of Rule 23 and 24 of the Employment and Labour Relations (Code of Good Practice) Rules, GN. No. 42 of 2007 and section 38(2) of the Employment and Labour Relations Act [Cap. 366 R.E. 2019]. It was also submitted by Mr. Mgombozi on behalf of the applicants that, respondent did not comply with the provisions of section 15(4) of Cap. 366 R.E. 2019 (supra) and Rule 8(1) (c) of GN. No. 42 of 2007 (supra). With those submissions, Mr. Mgombozi implored the court to allow this application. Opposing the application, Mr. Dominic, learned counsel for the respondent raised a preliminary objection on competence of this application submitting that, the dispute that was before CMA was 4 between Halima Rajabu Juma and Rukia Rajabu Ally v. Modern Sama Hotel but parties in this application are Halima Rajabu Juma and Rukia Rajabu Ally v. Modern Sama Hotel Ltd. Counsel submitted that, CMA record does not show that Modern Sama Hotel Ltd was a party to the dispute. He added that, the application is not related to CMA proceedings hence not in conformity with Rule No. 28 of the Labour Court Rules, GN. No.106 of 2007. With those submissions on the preliminary objection, counsel for the respondent prayed that the application be dismissed. Responding to the 1st ground raised by the applicants, counsel for the respondent submitted that, the arbitrator analyzed evidence and gave reason for the decision. On the 2nd ground, he submitted that, evidence was evaluated and that the award is based on evidence. In regard to the 3rd ground, he submitted that, key issues and reasons were given and in regard to the 4th ground, he submitted that, the arbitrator gave justification for issuing an award out of time. On absence of agreement to terminate employment, counsel for the respondent submitted that, the letter that was served to the applicants clearly shows that it was agreement and not a mere letter. He added that, Majamba's case (supra) was cited out of context as it has 5 nothing to do with termination of employment by agreement. With those submissions, learned counsel for the respondent prayed that the application be dismissed for want of merit. In rejoinder, Mr. Mgombozi submitted on behalf of the applicants that, Modern Sama Hotel and Modern Sama Hotel Ltd is the same person(employer). He also submitted that, applicants were employed by Modern Sama Hotel Ltd. He added that, applicant forgot the word “Ltd” in the CMA F1. He went on that, that was not an issue at CMA. I have examined evidence of the parties in the CMA record and considered submissions made on their behalf in this application. For obvious reason, in disposing this application, I will start with the preliminary objection raised by counsel for the respondent relating to competence of this application. It was submitted on behalf of the respondent that, the parties to the dispute at CMA record does not show that Modern Sama Hotel Ltd was a party to the dispute because parties were Halima Rajabu Juma and Rukia Rajabu Ally v. Modern Sama Hotel and not Halima Rajabu Juma and Rukia Rajabu Ally v. Modern Sama Hotel Ltd as they appear in this application. I have passionately examined the CMA record and find that in the CMA F1, applicants indicated that their employer was Modern 6 Sama Hotel. That is also reflected in this court’s order in Revision No. 115 of 2022. I have also noted that, in the summons to attend mediation (CMA F3) and the notice to refer a dispute to arbitration (CMA F8) after failure of mediation, the respondent was cited as Modern Sama Hotel. It was correctly submitted by Mr. Mgombozi on behalf of the applicants that, that was never an issue at CMA. It is my view that respondent after being served with both CMA F3 and CMA F8 was supposed to raise that issue at CMA. Since that was not raised at CMA, the same cannot be raised at this revision stage. There is a litany of case laws that matters not raised at trial, cannot be raised at appellate stage. See the case of Haruna Mtasiwa vs Republic (Criminal Appeal 206 of 2018) [2020] TZCA 230, Sunshine Furniture Co. Ltd vs Maersk China Shipping Co. Ltd & Another (Civil Appeal 98 of 2016) [2020] TZCA 1934, Richard Majenga vs Specioza Sylivester (Civil Appeal 208 of 2018) [2020] TZCA 227 and Godfrey Wilson vs Republic (Criminal Appeal No. 168 of 2018) [2019] TZCA 109 to mention a few. In Godfrey’s case (supra) the Court of Appeal held inter-alia: - “…we think that those grounds being new grounds for having not been raised and decided by the first appellate Court, we cannot look at them. In other words, we find ourselves to have no jurisdiction to entertain them as they are matters of facts and at any rate, we cannot be in a 7 position to see where the first appellate Court went wrong or right. Hence, we refrain ourselves from considering them.” I therefore find that the preliminary objection raised by counsel for the respondent has no merit. I therefore dismiss it. In the 1st ground of revision, the arbitrator is being criticized for her failure to evaluate evidence of the parties. With due respect to Mr. Mgombozi on behalf of the applicants, I have read the impugned award and find that the arbitrator evaluated evidence of both parties. I have carefully read evidence of Rukia Rajabu Ally (PW1) and Halima Rajabu Juma (PW2) and find that both testified that, in 2006 they entered oral contact of employment with the owner of Modern Sama Hotel. In their evidence, applicants (PW1) and (PW2), testified that they were employees of Modern Sama Hotel at monthly salary of TZS 300,000/= and they were terminated on 4th April 2018. They further stated in their evidence both in chief and cross examination that they signed letters titles “YAH: KUSITISHA MKATABA WA AJIRA KWA MAKUBALIANO” exhibit P2 collectively) dated 03rd April 2018. It is clear that both applicants (PW1) and (PW2) tried to distance themselves from the said exhibits but evidence is clear. For example, Rukia Rajabu Ally (PW1) is recorded stating while giving evidence in chief that: - 8 “…Barua imeandikwa kusitisha ajira kwa makubaliano lakini nayakana makubaliano hayo kwani aliandika yeye akatupatia barua ya kuachishwa kazi. Hii ni Saini kwa ajili ya kupokea. Hizo stahiki zilizoandikwa hapo, ambazo ndizo tunazofuatilia siku tulipopokea barua hatukulipwa chochote…” While under cross examination, PW1 is recorded stating inter alia that: - “…Nilipewa barua hiyo bila kusoma nikaambiwa nisaini, nikamuuliza ya nini akasema ya kuachishwa kazi sikupewa muda baada ya kuona sikubaliani nayo ndio ikabidi nije kwenye haki…” Similar evidence was adduced by Halima Rajabu Juma (PW2). On the other hand, Joel Samwel Mataba (DW1) and Selemani Hamidu Selemani (DW2) testified that applicants signed the said agreement voluntarily and that they were paid. In fact, DW2 stated that he was also an employee of Modern Sama Hotel and that he was terminated like the applicants and that he was also paid. DW2 testified that he signed exhibit P2 as witness. Going by evidence of the parties, I find, as the arbitrator did, that parties signed an agreement to terminate their employment contracts. The said agreement (exhibit P2 collectively) reads in part: - “YAH: KUSITISHA MKATABA WA AJIRA KWA MAKUBALIANO. Makubaliano haya yamefanyika leo tarehe 3 April 2018 … UTANGULIZI 9 A: Kwa kuwa mwajiri na mwajiriwa wameamua kukubaliana ili kusitisha mkataba wa ajira uliopo. B: Na kwa kukwa mwajiriwa ameachishwa na mwajiri wake. HIVYO MAKUBALAIANO HAYA YANASHUHUDIWA KAMA IFUATAVYO 1. Kwa kuzingatia kama ifuatavyo, kati ya mwajiriwa na mwajiri, kusitisha maktaba wa ajira Uliopo, yaliyofanyika katika ofisi ya meneja wa MODERN SAMA HOTEL LTD, mwajiriwa amekubali kwama(sic) mkataba usitishwe rasmi leo tarehe 3 April 2018. 2. Sababu hasa ya makubaliano haya ni kutokana na ukweli kwamba mahitaji ya sasa ya kazi za mwajiri hayaendani na mahitaji binafsi ya mwajiri. 3. Kwamba katika kikao hicho cha makubaliano ya kusitisha mkataba wa ajira, mwajiri amekubali kumlipa mwajiriwa stahiki zote kwa mujibu wa mwongozo wa sheria na muongozo wa kazi na 6 ya mwaka 2004 kama ifuatavyo; - Mshahara wa mwezi wa Tshs 300,000(sic) - Mshahara wa miezi mitatu kwa Notisi/taarifa - Hati safi ya utumishi 4. Kwamba mwajiriwa kwa kutia sahihi katika makubaliano haya amekubali mbele ya mwajiri kuchukua stahiki kama zilivyotajwa katika stakabazi ambatashi, Na kusibitishwa(sic) na mwajiri na mwajiriwa kuwa hana madai mengine yoyote. 5. Kila upande umeridhia na kuthibotisha yaliyoandikwa katika makubaliano haya ya kutengua ajira ya makubaliano na kuomba kila upande umefia(sic) sahihi biila(sic) kinyongo wala hofu au shuruti na akili timamu. …” (Emphasis is mine) The said agreement is clear and loud that it was an agreement to terminate the contract of employment. As pointed hereinabove, the said 10 agreement (exhibit P2 collectively) was signed by both applicants. Allegation that applicants did not read the said exhibit or that they were just served with the agreements in absence of the meeting thereof are unfounded. I am of that view because, applicants testified that they signed the said agreement. Whether they did not read it prior to signing or they did not participate in agreement, that cannot be a defence. I am of that view because, whenever a man or a woman of full age and understanding who can read, write and sign a document which is apparent on the face of it, is intended to have legal consequences, then, if he/she does not take trouble to read it, but signs it as it is, relying on words of another as to its character or contents or effects, he/she cannot be heard saying it is not his/her document. In other words, after signing the said exhibit P2, applicants cannot now argue that, at the time of signing the said exhibit, their hand did not go together with their brain. If they signed negligently without reading and think critically the effect thereof, that chance has gone and they cannot complain now as it was held in the case of Nyerembe Nyampiga vs Access bank Tanzania Co. Ltd (Revision Application No. 972 of 2019) [2021] TZHCLD 464 and Sluis Brothers (E.A) Ltd v. Mathias & Tawari,[1980] TLR 294. In short, in their evidence, applicants relied on non est factum doctrine. In my view, what was signed by the parties is 11 what they intended to execute. It is my view further that, the non est factum doctrine cannot apply in favour of the applicants. This court had an advantage of discussing the said doctrine in the case of Meriment Nangasu Mseli vs Felister Robert Sekidio (Land Case 213 of 2022) [2023] TZHCLandD 15734, and Tanganyika Bus Service Co. Ltd vs National Bus Service Ltd (Kamata) [1987] TZHC 11. In the Tanganyika’s case (supra) this court held: - "Non est factum is the name given to the argument raised when the defendant in a contract suit alleges that a document that he has signed should not be binding upon him because he was induced to sign it on the understanding that it was of completely different nature from what it is in fact…That is very difficult point to establish because the mistake must be one relating not to the content but to the character of the subject matter. The document signed should be radically different in character from that which the plaintiff believed he was signing.” (Emphasis is mine). In Tanganyika’s case (supra) this court further quoted the decision of Lord Reid pointed out in the decision of the House of Lords in Saunders v Anglia Building Society [1970] 3 All E.R. 961 that: - “There must, I think, be a radical difference between what he signed and what he thought he was signing or one could use the words fundamental or serious or very substantial. But what amounts to a radical difference will depend on all the circumstances. So, the essence of the plea non est factum is that the person signing, believed that the document he signed had 12 one character or one effect whereas in fact its character or effect was quite different.” For the foregoing, the doctrine of non est factum cannot help the applicants. More so, after signing the said agreements, applicants were therefore estopped from denying that truth as it was held in the case of Muhimbili National Hospital vs Linus Leonce (Civil Appeal 190 of 2018) [2022] TZCA 223. I therefore find that the 1st and 2nd grounds are unmerited. I should point out that, the provisions of Rule 23 and 24 of GN. No. 42 of 2007(supra) and section 38(2) of Cap. 366 R.E. 2019(supra) relied on by Mr. Mgombozi in this application are inapplicable in the circumstances of this application because applicants were not retrenched rather, the parties agreed to terminate employment contract. Again, the provisions of section 15(4) of Cap. 366 R.E. 2019 (supra) and Rule 8(1) (c) of GN. No. 42 of 2007 (supra) cited by Mr. Mgombozi on behalf of the applicants, were cited out of context as they have nothing to do with facts of this application. The complaint in the 3rd ground is that the arbitrator did not summarize key issues raised by the parties. I have examined the CMA record and find that on 30th January 2023, three issues namely (i) 13 whether applicants were employees of the respondent, or they were employed for specific task, (ii) whether termination of the applicants was fair and (iii) to what reliefs are the parties entitled to. In the award, the arbitrator held that applicants were not employed for specific task rather, they were employed for unspecified period. The findings of the arbitrator are correct based on evidence that was adduced by the parties. The 2nd and 3rd issues were answered in favour of the respondent. Based on evidence that was adduced by the parties as pointed shortly a while in hereinabove, the arbitrator was right in her findings. I dismiss this ground for want of merit. In the 4th ground, arbitrator is criticized for issuing the award out of 30 days provided under the law. It was not stated as to how the applicants were prejudiced by the award that was issued out of time. More so, justification was given by the arbitrator that she had other duties and further that she went on annual leave. The arbitrator like any other employee, in law, she was also entitled to annual leave. She cannot forfeit her annual leave just to issue an award to the parties. The Court of Appeal had an advantage of discussing a similar issue of issuing an award out side the 30 days provided under section 88(11) of the Employment and Labour Relations Act[Cap. 366 R.E. 2019) in the case of FINCA T. Ltd vs Wildman Masika & Others, (Civil Appeal No. 173 14 of 2016) [2019] TZCA 3 (30 September 2019). In the FINCA’s case, (supra), the Court of Appeal held: - “The law in terms of s.88(9) of the Employment and Labour Relations Act requires that decisions be given within 30 days after the date of hearing. It is true that the CMA's decision in this case was delivered after 4 months. However, the delay in our view is not a material irregularity in procurement of an award, sufficient to have the same invalidated. We say so because if for example the award is nullified merely because the decision was not given within thirty days the effect is to have the process commence afresh causing further delay which is to the disadvantage of both parties. To us that is not the spirit behind section 88(9). The spirit is to have a time frame in completing matters brought before the MA but failure to meet the deadline stipulated in section 88(9) will not invalidate the proceedings and the award. At any rate, the delay of four months in this case has not prejudiced any party, hence no injustice occasioned”. That said, I dismiss the 4th ground for want of merit. For all discussed herein, I find that the application is not merited and dismiss it. Dated in Dar es Salaam on this 06th September 2024. B. E. K. Mganga JUDGE 15 Judgment delivered on this 06th September 2024 in Chambers in presence of Halima Rajabu, the 1st Applicant but in the absence of the Respondent. B. E. K. Mganga JUDGE 16