hamza faharani vs tanzania redcross society 2022 tzhcld 250 6 june 2022

THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 467 OF 2021 (Arising from an award issued on 18th October 2021 by Hon. Wiibard G.M, Arbitrator, in Labour dispute No. CMA/DSM/KIN/164/41/21 at Kinondoni) BETWEEN HAMZA FARAHANI................................................ APPLICANT AND TANZANIA RED CROSS SOCIETY................... RESPONDENT JUDGMENT Date oflast Order: 12/05/2022 Date ofJudgment: 06/06/2022 B.E.K. Mqanqa, J. On 15th September 2009, applicant entered a nine months' fixed term contract of employment with the respondent and was stationed at Dar es Salaam. Before entering the said fixed term contract, applicant was an employee of the Government stationed at Singida District. Being a public servant, in order to join the respondent, in October 2009 applicant secured nine months' fifteen days leave without pay. Upon expiry of the first contract, there followed several contracts with i different terms. On 1st July 2019 the parties entered into a 1 (one) year fixed term contract ending on 30th June 2020. This contract was terminated by the respondent on 30th January 2020 on ground of absenteeism. It was alleged testified at CMA that applicant was transferred to Geita station where he only stayed for two days and that, this led to termination of his employment. Aggrieved by termination of his employment, on 27th February 2020 applicant filed the dispute to the Commission of Mediation and Arbitration (CMA) complaining that he was unfairly terminated. In the CMA Fl, applicant indicated that he was claiming (i) payment of all statutory dues including salary arrears, gratuity in lieu of notice, leave pay, salary for January, (ii) compensation for unfair termination/ or breach of the remaining contract period and (iii) payment of punitive general damages. At mediation stage, the parties agreed on the claim of unfair termination of the contract as a result, the respondent agreed to pay the remaining 4 months' salary of the applicant. The remaining claims were referred to arbitration. Having heard evidence of both parties, on 18th October 2021, Hon. Wilbard G. M, Arbitrator, issued an award ordering the respondent to 2 pay TZS 23,929,200/= being salary arrears for six months' namely; April to September 2017, TZS 199,410/= being 5% medical expenses, TZS 598,230/= being 15% of salary as housing allowance and TZS 5,982,300/= being 25% as gratuity for the said period all amounting to TZS 30,709,140/= to the applicant. The arbitrator dismissed the claim of TZS 100,000,000/= general damages. Applicant was further aggrieved by the dismissal of the claim of general damages hence this application for revision. In the affidavit supporting the Notice of Application, applicant raised two issues namely:- Z Whether the applicant was obliged to prove general damage specifically and strictly. ii. Whether the circumstances of the applicant's termination and the applicant's testimony at page 6 of the CMA award were not sufficient for the CMA to consider that the applicant is entitled to the general damages. In opposing the application, respondent filed the counter affidavit of Felician Mtahengerwa, her principal officer. 3 When the application was called for hearing, applicant was represented by Angros Ntahondi, Advocate while the respondent was represented by Col. Aloyce S. Laiser (rtd), Advocate. Mr. Ntahondi learned counsel for the applicant opted to argue the application generally and submitted that at CMA, applicant claimed to be paid general damages, but this was not awarded on ground that they were not specifically proved. He submitted further that general damages are not strictly proved, and that, applicant had no duty to prove strictly general damages, rather, he was required to prove how he was injured by the circumstances of the case. He cited the case of Reliance Insurance Company (T) Ltd & 2 Others v. Festo Mgomapayo, Civil Appeal No. 23 of 2019, CAT (unreported). He further cited the case of Mbeya Cement Co. Ltd V. Alien Mwinuka, Revision No. 14 of 2017 HC (Mbeya) and Off Route Technologies V. Daniel Yesaya Mwaibindi, Revision No. 21 of 2017 HC (unreported) to cement on his argument that general damages are awardable in labour matters. He went on that; general damages can be awarded when there is proof of evidence of injury and that applicant proved injury. In his submissions, counsel for the applicant conceded that general damages are awardable 4 at the discretion of the Court as it was held in Mgomapayo's case (supra). He submitted further that, this Court has power to intervene with the assessment of general if it finds that there was an error committed by the lower Court in assessment of general damages. In response, Mr. Laizer, learned counsel for the Respondent, submitted that applicant was not entitled to damages because the same was not provided in his contract. He cited the case of Twikasyege Mwaigombe V. Mbeya Regional Trading Co. Ltd, [1988] TLR 237 to support his point that an employee must prove that he was employed for life or for a period terminating on attainment of retirement age. He argued that general damages cannot be implied but should be expressly pleaded. In rejoinder Mr. Ntahondi submitted that the case cited by Counsel for the respondent is distinguishable and conceded that applicant was employed on a fixed term contract. I have examined the CMA record and considered submissions by the parties and case laws cited in relation to the prayer of general damages. It is a settled law that general damages are normally awarded at the discretion of the court, and they need not to be specifically 5 proved as it is on the specific damages. The Court of Appeal in Reliance's case (supra) quoted its holding in the case of The Cooper Motors Corporation Ltd v. Moshi Arusha Occupational Health Services [1990] TLR. 96 wherein it held that: - "General damages need not be specifically pleaded they by a mere statement or prayer or claim." The Court of Appeal went on that: - "It is trite law that, interference of the award of damages is only permissible if it will be seen that the magistrate or a judge assessed the said damages by using a wrong principle of the taw. If it happens so, the appellate court should disturb the quantum of damages awarded by the trial court. In Davies v. Powell (1942) 1 AH ER 657 which was approved by the Privy Council in Nance v. British Columbia Electric Rai! Co. Ltd (1951) AC. 601 at page 613 it was stated as follows: "Whether the assessment of damages be by a judge or jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case ...before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this that the amount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damage..." 6 It is also a cardinal principle that discretion must always be exercised judiciously. I am also alive that, judicial discretion is the exercise of judgment by a judge or court based on what is fair, under the circumstances and guided by the rules and principles of law. In the application at hand, I am invited by the applicant to exercise that discretion. It is undisputed fact that the parties had a fixed term contract expiring on 30th June 2020 but was terminated four months' before. From the evidence on record, applicant was compensated salary for the said months' while at mediation stage. In my view, in the circumstances of this application, I find that applicant was compensated and, in my view, based on the circumstances of this application, there is no need to award him general damages. I have also noted the amount of TZS 100,000,000/= general damages claimed by the applicant was not included in the CMA Fl, that to say, in the pleadings, but came up in his evidence. The base of the applicant to claim that amount was that (i) he is 51 years old hence cannot be reemployed, (ii) he has family and (iii) that termination affected his education carrier he was pursuing. In my view, as pointed hereinabove, applicant was compensated by the respondent at mediation stage for the remaining period of contract. That 7 in my view, was enough to restore him to the position he would have been after expiry of a contract. The reasons he advanced, in my view, has nothing to do with this application because, even without termination of the contract, his employment was expiring four months' later, and he was to face all those challenges. I am of that opinion because there was no guarantee that his contract will be extended. In my opinion, it will not also be fair to the respondent to pay TZS 100,000,000/= as general damage while she readily compensated the applicant the remaining four months' period of the contract. More so, in addition to compensation of four months' period the respondent agreed to compensate applicant during mediation stage, applicant was awarded by the arbitrator to be paid TZS 30,709,140/=. Luckily to the applicant, no revision application was preferred by the respondent. In my view, it will be unjust enrichment of the applicant if the claimed damages will be awarded but suffocating the respondent to death. In the circumstances of this application, granting the general damages prayed by the applicant, will be contrary to the policy behind enactment of labour statutes and the powers of the court inter-alia to maintain and expand 8 the level of employment as provided for under section 52(1) of the Labour Institutions Act [Cap. 300 R.E. 2019]. Foregoing, I hereby uphold CMA award and dismiss the application for want of merit. Dated at Dar es Salaam this 6th June 2022. zCV- B. E. K. Mganga JUDGE Judgment delivered on this 6th June 2022 in the presence of Angros Ntahondi, Advocate for the applicant and Col. Aloyce Laiser (rtd), Advocate for the Respondent. 9