INSTA AFRICA TANZANIA LIMITED V

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT DAR ES SALAAM REVISION APPLICATION NO. 15410 OF 2024 (Arising from an Award issued on 28/06/2024 by Hon. Msina, H.H, Arbitrator, in Labour Dispute No. CMA/DSM/ILA/624/2023/313/ at Ilala) INSTA AFRICA TANZANIA LIMITED..………………….. APPLICANT VERSUS HALIDI OMARI MINDA…………………………………. RESPONDENT JUDGMENT Date of last Order:21/8/2024. Dated of Judgment: 04/9/2024. B. E. K. Mganga, J. It is undisputed fact that Halidi Omari Minda, the abovenamed respondent had employment relationship with Insta Africa Tanzania limited, the abovenamed respondent. It is also undisputed by the parties that, on 9th November 2023, respondent filed Labour dispute No. CMA/DSM/ILA/624/2023/313/2023 before the Commission for Mediation and Arbitration (CMA) complaining that applicant breached the contract of employment. Respondent filled also part B of the said referral form (CMA F1). On fairness of reason, respondent indicated that, applicant had no reason to terminate his employment. On fairness of procedure, he indicated that applicant did not follow procedures for termination. Based on the foregoing, respondent indicated in the said CMA F1 that, 1 he was claiming to be paid TZS 3,200,000/= being compensation for the remaining period of the contract. On 28th June 2024, Hon. Msina, H.H, Arbitrator, issued an award that applicant breached the contract of employment of the respondent without justifiable reason and without adhering to procedures. Based on those findings, the arbitrator awarded respondent to be paid (i) TZS 3,600,000/= being salary compensation for 9 months of the remaining period of the contract, (ii) TZS 400,000/= being one month salary in lieu of notice, (iii) TZS 400,000/= being one month salary leave all amounting to TZS 4,400,000/=. Applicant was aggrieved with the said award hence this application for revision. In support of the Notice of Application, applicant filed the affidavit sworn by Edward Michael Ngatunga, her Human Resources Manager. In the said affidavit, applicant raised five ground of revision namely:- 1. That, the honourable arbitrator erred in facts and law by holding that the applicant breached the contract despite having clear evidence that the respondent was never terminated. 2. That the honourable arbitrator erred in facts and law holding that payment of salaries is proof of breach of contract. 3. Despite the applicant admission that he was never given threat by managing Director but the arbitrator never considered such admission as evidence which is reliable to the case in hand. 2 4. That despite the facts that the honourable arbitrator admitted evidence during the disposal of this suits the arbitrator erred in facts and law for being in total biased against the applicant has in all his ruling failed to evaluate the applicant evidence. 5. That the honourable arbitrator erred in facts and law by failure to question the credibility of respondent evidence on the issue of breach of contract by termination. Opposing the application, respondent filed his counter affidavit. When the application was called on for orders, parties prayed the application be argued by way of written submissions, as a result, the order was issued to that effect. Complying with the court’s order of arguing this application by way of written submissions, applicant enjoyed the service of Ms. Josephine Ndelike, advocate while respondent wrote his own written submissions. Arguing the 1st ground, counsel for the applicant submitted that respondent did not prove that he was terminated by the applicant so as the burden of proving that termination was fair to shift to the applicant. To support his submissions, counsel cited a South African case of Kroukam v. SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC). Arguing the 2nd ground, counsel for the applicant submitted that applicant paid salary for october 2023 but stoped to pay salary from November 2023 after being served with CMA F1 by the respondent complaining that applicant terminated his employment. 3 Arguing the 3rd ground, counsel for the applicant submitted that, in his evidence, respondent testified that, on 1st November 2023 he was told by a cashier called Erick that, he has been terminated. He further argued that, the said cashier had no mandate to terminate any employee. He added that, respondent did not inquire from the applicant whether he has been terminated or not. Arguing the 4th ground, counsel for the applicant submitted that, arbitrator did not properly evaluate evidence adduced. He submitted that arbitrator did not evaluate properly warning letters exhibit D1 and D2. On the duty of evaluating evidence and credibility of witnesses, counsel for the applicant cited South African cases of Stellenbosch Farmers’ Winery Group Ltd And Another v. Martell & Kie Sa And Others [2003] (1) SA 11 (SCA) and Cooper And Another v. Merchant Trade Finance Ltd [2000] (3) SA 1009 (SCA). Counsel added that, todate, respondent is in possession of applicant’s property but the arbitrator failed to evaluate evidence. In respect of the 5th ground, counsel for the respondent submitted that, respondent gave contradictory and unreliable evidence but he was believed by the arbitrator. She councluded her submissions praying the court to allow the application by quashing and setting aside the CMA award. 4 Resisting the application, respondent submitted that, on 05th October 2023, he was given a notice by the cashier that on 30th October 2023 will be his last day of working as employee of the applicant. He further submitted that, his employment was terminated by the applicant. Respondent cited the case of Ayubu Alphonce Rubale v. Global Media Solutions Ltd, Revision No. 393 of 2022, HC(unreported) to support his position that termination of a fixed term contract to be fair, there must be valid reason and adherence to procedures of termination. Respondent further submitted that the arbitrator did not error and prayed the application be dismissed for want of merit. When the application was scheduled for orders, having perused the CMA record and submissions of the parties, the court noted that in CMA F1, respondent indicated that the dispute related to breach of contract. The court further noted that respondent filled also Part B of CMA that is for termination of employment only. With those observations, I asked the parties to address the court on competence of the dispute that was filed at CMA. At this time, Mr. Edward Ngantunga, the Human Resources Manager, appeared and argued on behalf of the appllicant. Respondeing to the issue raised by the court, Mr. Ngatunga submitted that by filling part B of CMA F1, the said CMA F1 became defective. He added that, 5 CMA F1 was supposed to be struck out. With those submissions, he prayed the court to nullify CMA proceddings, quash and set aside the award. Responding to the issue raised by the court, respondent submitted that, CMA F1 was not defective. He added that, the dispute was properly heard and determined and maintained that the application be dismissed for want of merit. I have examined evidence of the parties in the CMA record and considered their submissions and find that, in his evidence, Halidi Omari Minda(PW1), applicant testified that, he signed a contract of employment with the respondent on 8th July 2023 and that, on 5th October 2023, he was verbally notified by Erick the respondent’s cashier that his employment will be terminated on 30th October 2023. Respondent further testified that, on 1st November 2023 he was notified that he should stop attending at work, as a result, he filed the complaint at CMA that respondent breached the contract of employment. On the other hand, it was evidence of Edward Michael Ngatunga (DW1) that, respondent did not terminate employment of the aplicant rather, she only served applicant with warning letters (exhibit D1 and D2). It was also evidence of DW1 that the parties had one year fixed 6 term contract that was signed in July 2023 and was expected to expire in July 2024. As pointed hereinabove, applicant filed the dispute at CMA showing that applicant breached the contract. It is clear from evidence of the parties that, they signed a one year fixed term contract in July 2023 and that, in November 2023 respondent filed the dispute at CMA filling also part B of CMA F1 that relates to termination of employment only. By filing part B of CMA F1 that relates only to termination of employment while the dispute was relating to breach of contract, made the said CMA F1 to be defective hence the whole dispute became incompetent as it was held in the case of of Bosco Stephen vs Ng'amba Secondary School (Revision 38 of 2017) [2020] TZHC 390, Ngorongoro Conservation Area Authority vs Amiyo Tlaa Amiyo and Another (Labour Revision Application 28 of 2019) [2022] TZHC 3078, Marie Stopes Tanzania (mst) vs Bernard Paul Mtumbuka (Revs Appl No. 368 of 2022) [2023] TZHCLD 1136 and Wasafi FM Co. Ltd vs Kanky P. Mwaigomole (Revision No. 123 of 2023) [2023] TZHCLD 1405 (30 August 2023). In short, proceedings that were conducted based on a defective and incompetent CMA F1 are a nullity. For the foregoing, I hereby nullify CMA proceedings, quash and set aside the award arising therefrom. Since the issue that was raised by the court has disposed the 7 whole application, I find it unnecessary to discuss the grounds raised by the applicant. Dated in Dar es Salaam on this 4th September 2024. B. E. K. Mganga JUDGE Judgment delivered on this 04th September 2024 in Chambers in presence of Goodluck Peter advocate holding brief of Josephine Ndelike, Advocate for the Applicant and Halidi Omari Minda, the Respondent. B. E. K. Mganga JUDGE 8