CIVIL APPEAL NO 524 OF 2022 LWAWIRE ROBERT KATULA 36 OTHERS VS NATIONAL INSURANCE CORPORATION OF TANZANIA LTD ANOTHER

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. 3.A., GALEBA. J.A.. And ISMAIL, 3.A.) CIVIL APPEAL NO. 524 OF 2022 LWAWIRE ROBERT KATULA ...........................................................1st APPELLANT DAMIAN JOSEPH KANUTI........ ............................................ . 2nd APPELLANT DAVID PETER MOSOMA........ .......................................................3rd APPELLANT EDWARD EUSTACE BACHWA........................................................ 4™ APPELLANT ALIMOSA ANOSISYE..................................................................... 5th APPELLANT SIRI RAMADHANI MKONGOPELE............................. .................... 6™ APPELLANT JULIUS MACKY.... ................. ............ ................. ........... .......... 7th APPELLANT MOSES EDWARD RUZYEGO (Administrator of HASSAN RUZYEGO'S ESTATE)...................... .............................8™ APPELLANT AUGUSTINO KIRIA ............. ........................ ................................. 9th APPELLANT EMILY JUMAMTAUKA................................................... .............. 10™ APPELLANT JOHN FRANCIS KITIME (Administrator of JANET CHODOS'S ESTATE)................................................. 11™ APPELANT ABROSE F. KIBUMU................................ ................................... 12™ APPELLANT KILIMBA PETER KILIMBA...........................................................13™ APPELLANT FATUMA AMANI W AZIRI........................ ......................... .......14™ APPELLANT FLORA NASUA ............................................................................. 15™ APPELLANT HABIBA REUBEN MAHITI........................................... ................ 16™ APPELLANT MUNIRA AM ANI....... ............... .................................................. 17™ APPELLANT AUSTERIA MARKI MIHAYO.................................. ...................... 18™ APPELLANT ROSE ANDREW KISAKA.............................................................. 19™ APPELLANT LAWRENCE EDWIN CHOVENYE...................................................20™ APPELLANT LUCY ANGETILE MARTIN..... ...................................................... 21st APPELLANT MATILDA B. LYAMBA.............................................................. 22nd APPELLANT MALIGISA MANYANGU......................................................... . 23rd APPELLANT SIMON MANYAMA WILLIAM NGONYOLI.....................................24™ APPELLANT l BAKARI MTIMA............................................................... .......25™ APPELLANT ANNA TITUS............................................................................26™ APPELLANT JUSTIN MSHUZA................................................... ................. 27™ APPELLANT CHARLES MSEMEMBO...... ........................ ............................. 28™ APPELLANT GEOFREY NJUNWAS................................................................29™ APPELLANT GAD1EL UROKI................................................. ..................... 30™ APPELLANT KHADIJA N GUA.................................................................. . 31st APPELLANT VICENT MASANULA......... ........................ ............................. 32nd APPELLANT ELIZABETH KASAMBALA..................... ...................................33rd APPELLANT MARGRETH MANYAFU............................................................34™ APPELLANT SHAIBU J. NG'EVE.................................................................. 35™ APPELLANT MOHAMED MGINA PAMBA..................................................... 36™ APPELLANT ANNA SIMON NGONYOLI......... ................. ........................... 37™ APPELLANT VERSUS NATIONAL INSURANCE CORPORATION OF TANZANIA LTD....1st RESPONDENT ATTORNEY GENERAL & TREASURY REGISTRAR (formerly, CONSOLIDATED HOLDING CORPORATION)......... 2nd RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mganga, 3.) dated the 12th day of August, 2022 in Labour Revision No. 59 of 2022 JUDGMENT OF THE COURT 13thApril & 2Cfh May, 2024 GALEBA, J.A.: The appellants in this appeal, had been employed by the first respondent in various capacities, but were terminated by their employer on 4th February, 2 2009. The termination was a result of the restructuring initiatives that were taking place within the first respondent's structural set up at the time. The appellants were aggrieved by the termination and to contest it, on 27th February, 2009, a document initiating the complaint, form CMA FI, signed by only Lwawire Robert Katula, the first appellant, was lodged in the Commission for Mediation and Arbitration (the CMA). In that form, the cause of action was discrimination, unfair termination and underpayment of their terminal dues. As redress, the amount prayed was TZS. 2,347,835,097.00, including their social security contributions to the defunct Parastatal Pensions Fund (the PPF). Alternatively, they prayed that, in case the CMA would not order payment of the above amount, then the first respondent be compelled to reinstate them in their previous positions. Upon failure of mediation, the matter was heard, and consequent to the arbitration, the CMA awarded payment of TZS. 1,336,887,641.00, after computing and tabulating respective amounts due and payable to each appellant. The CMA also ordered payment to the appellants of TZS. 300,000,000.00 which had not featured in the CMA FI. That decision aggrieved the respondents, such that they lodged Labour Revision No. 69 of 2022, before the Labour Division of the High Court of 3 Tanzania. The court heard the revision as presented, and on 29th June, 2022, upon conclusion of hearing, it adjourned the session to 22nd July, 2022 for judgment. However, when parties appeared before the court for receiving the judgment on that date, the court made the following observation at page 932 of the record of appeal: "Court: At the time o f composing thejudgment I went through the CMA record and found that there is a discrepancy in the award that is in the CMA record and that filed by the parties. Not only that but also the CMA FI was signed by Lwawire R. Katula and there is a list o f names signed by individuals without stating that they mandated the said Lwawire R. Katula to sign CMA FI on their behalf. More so, parties filed written sworn statements with annexures thereof. The CMA record shows that parties did not pray the said annexures to be admitted as exhibits and they were not admitted, but in the award the arbitrator considered those annexures. Please address the court, the effect o f these irregularities." [Emphasis added] Following that directive, one of the learned State Attorneys who was appearing for the respondents, Ms. Joyce Yonaz submitted that, because of the irregularities highlighted, the CMA award was unlawful. On his part, the first appellant admitted to the irregularities, but argued that, having suffered for 23 years without being paid their dues, it would be unfair to quash the appellants' award. The matter was then adjourned to 25th July, 2022 for judgment based on the above arguments. When the matter was called on for judgment on the latter date, the judgment was not delivered, for the court had entertained yet another issue of legal importance. So, after recording the appearance of parties, the court, at page 935 of the record of appeal remarked: "Court: There is another issue relating to condonation. Please address the court whether it was granted or n o t" Mr. Abeid Buzohela, the learned State Attorney prayed for an adjournment. Mr. Katula did not object to the adjournment, thus the session was adjourned to 26th July, 2022, which was the next day. On that day, Mr. Barnaba Luguwa for the respondents appeared and a team of four State Attorneys, led by Mr. Daniel Nyakiha, learned State Attorney appeared for the applicants. At this session, noting that Mr. Katula and others had instructed Mr. Luguwa to represent them in the matter before the court, 5 and considering that Mr. Katula was a lay man, in addition to hearing the arguments involving a new matter of condonation, the court allowed parties to discuss afresh the previous matters which were raised and argued on 22nd July, 2022, and added yet a couple of more issues to be addressed upon. One of such new issues was whether the CMA had mandate to award TZS. 300,000,000.00 which amount was subject of execution proceedings in the District Court of Ilaia. Mr. Luguwa supported the CMA and its award on all points except on the PPF payments which he conceded that the CMA did not have what it takes to secure the award. On the other hand, Mr. Nyakiha was of a completely opposite view, his position was that the CMA was wrong on all points raised by the court. In its judgment, the High Court considered the points raised, and resolved all of them in favour of the present respondents. Of profound relevance which is the substratum upon which this appeal rests, is the determination of the validity of Lwawire Robert Katula's authority to sign CMA FI on behalf of other appellants. On this point, the learned Judge of the High Court concluded at page 982 of the record of appeal as follows: 6 "...In my view, as it was correctly submitted by Mr. Yonaz State Attorney, that the CMA FI was defective for want o f mandate and that the dispute was incompetent, I therefore conclude that there was no dispute that was properly filed by the respondents because CMA FI was defective for want o f consent or mandate." Based on the above conclusions and several other findings, the court nullified the proceedings of the CMA and set aside the award. The appellants were dissatisfied by that decision of the High Court, hence the present appeal. Before us, the appeal was based on 6 grounds of appeal, which may be paraphrased, thus; one, that the learned Judge erred in law by holding that Lwawire R. Katula had no legal mandate to sign CMA FI on behalf of other appellants and represent them; two, that the learned Judge erred by nullifying the proceedings of the CMA on the ground that the matter before it was time barred; and; three, that the High Court erred when it held that it was unlawful for the CMA to receive evidence by way of witness statements. Four, that the learned Judge erred by holding that the CMA had no jurisdiction to order payment of TZS. 300,000,000.00 while in fact the arbitrator did not make such an order. Five, that the High Court erred in law in discrediting the procedure of hearing the case by way of witness statements merely because they did not meet the standards set by the Commercial Court Rules. Six and finally, that the learned Judge erred in law in not determining the substantive issues which were presented before the High Court for determination. At the hearing of this appeal, the appellants had the services of Mr. Barnaba Luguwa, learned advocate, whereas both respondents were represented by Ms. Lightness Godwin Msuya and Hosana Jacob Mgeni, both learned State Attorneys. Both parties adopted their written submissions and had opportunity to elaborate a few points in the said submissions. In doing so, they submitted mainly on the second and third grounds of appeal. Because of its decisive significance, we will start to consider arguments for and against the first ground of appeal which contests the mandate to institute the matter in the CMA. This means, if the appellants' arguments on that ground fail, the appeal is bound to end right at that point. So, in arguing that ground of appeal, Mr. Luguwa contended that the first appellant, one Lwawire R. Katula had legal mandate to sign CMA FI on behalf of other appellants because, the latter authorized him to do so by each of them signing against their names on the list contained at page 15 of the record of appeal. 8 On her part, Ms. Msuya strongly objected to her colleague's submissions. She argued that the document at page 15, is ineffectual and could not vest any mandate in the first appellant to do anything because, the list had no clause stating that the first appellant was being given any mandate, and it does not contain his name. She maintained also that, among the people listed on that document, two were dead at the time of giving the alleged mandate, which means, such persons would not have given any mandate to the first appellant to sign any document on their behalf. The learned State Attorney argued that, in a bid to illegally justify the first appellant's act of signing CMA FI on their behalf, the appellants unprocedurally included in the record of appeal, a document at pages 16 and 17 which was not part of the record of any lower court. In that respect, she contended that the document should not be relied upon in this appeal and implored us to dismiss this ground of appeal. In rejoinder, Mr. Luguwa submitted that there is no statutory format to be adopted in giving the mandate to sign CMA FI or any document for such purposes. According to him, the fact that the appellants signed the list was enough to vest the first appellant with powers to sign the document on their behalf. He added that, as the requirement was procedural, and since there was no prejudice that was occasioned to either of the parties, the omission is a 9 matter of no significant consequence and that the same is minor; such that it could be glossed over and ignored. In respect of the above contested point, we think the appropriate issue for resolution is whether the first appellant had authority of the other appellants to sign CMA FI on their behalf. To tackle that question, we will start with the law applicable, then gauge it against what is on record in a resolve to find out whether there was compliance with such law. The relevant iaw is rule 5 (2) and (3) of the Labour Institutions (Mediation and Arbitration) Rules, 2007, GN IMo. 64 of 2007 (the Labour Institutions Rules), which provides as follows: "(2) Where proceedings are jointiy instituted or opposed by more than one employee< , documents may be signed by an employee who is mandated by the other employees to do so. (3) Subject to subrule (2) a list in writing, o f the employees who have mandated a particular employee to sign on their behalf, must be attached to the document The list must be signed by the employees whose names appear on i t " In order for the above provisions to be complied with, that is to say, for a person to be able to sign any case document at the CMA on behalf of another or others, there are two prerequisites to be fulfilled; one, the persons on 10 whose behalf a person has to sign a document, must authorize him to do so and; two, a list of persons giving mandate to sign must be attached to the document to which the mandate relates. In this case, at page 15 of the record of appeal, there is a document containing a list of 37 names, and for avoidance of ambiguities, we quote it here in full, before we get in to the discussion to which the same is central. That document, states: "Wafanyakazi Wenzake Na Lawrence Katura S/No. Payroll Name o f Employee Signature No. 1. 4105 Edward Bachwa Sgd 2. 5075 David Mosoma Sgd 3. 4960 Simon M. W. Ngonyoii Sgd 4. 4322 Damian J. Kanuti Sgd 5. 2425 Bakari Mtima Sgd 6. 2455 Lawrence E Chovenye Sgd 7. 2486 Siri Mkongopeie Sgd 8. 2866 Anna Titus Sgd 9. 3074 Julius Meek Sgd 10. 3190 Ambrose F H. Kibumu Sgd 11. 4525 Justin Mshuza Sgd 12. 4760 Charles Msemembo Sgd 13. 5317 Augustino Kiria Sgd 14. 5745 Geofrey Njunwas Sgd 15. 5829 Gadie/ Uroki Sgd 16. 1129 Khadija Ngua Sgd 17. 1471 Habiba R. Mahiti Sgd 18. 1764 Austeria Mihayo Sgd 19. 2135 Matilda Lyamba Sgd 20. 2760 Vicent Masanula Sgd 11 21. 2762 Janeth J. Chidosa Sgd 22. 2971 KHimba P. S. Ki/imba Sgd 23. 3621 Alimosa Anosisye Sgd 24. 3830 Fatuma A. Waziri Sgd 25. 4311 Elizabeth J. Kasambaia Sgd 26. 4345 Flora Nasua Sgd 27. 4396 Hassan Ruzyego Marehemu 28. 4551 Munira W. Amani Sgd 29. 4990 Margreth Manyafu Sgd 30. 5274 Moussa A. Hassani Marehemu 31. 5311 Shaibu J. Ng'eve Sgd 32. 5315 Emily Juma Sgd 33. 5328 Mohamed M. Pamba Sgd 34. 5330 Maligisa Manyagu Sgd 35. 5365 Anna S. Ngonyoii Sgd 36. 5568 Lucy A. Martin Sgd 37. 5661 Rose Kisaka Sgd If According to Mr. Luguwa, with this document, the requirements of rule 5 (3) of the Labour Institutions Rules were fully satisfied. The issue before us is whether, in so submitting, the learned counsel was right. First, the clear message that the document is meant to communicate, in terms of its caption, is a list of "Wafanyakazi Wenzake na Lawrence Katurd', which literally means " Lawrence Katura's Fellow Employee5". Reading a different meaning other than the above, in that caption, would be a deliberate superimposition of such information by whoever would be imputing that other message in the caption. In our view, there is nothing in that document like authorization of one Lwawire Robert Katula, to do anything. Second, the said Lwawire Robert Katula, who signed CMA FI, is not even mentioned anywhere in the above quoted document. The argument by Mr. Luguwa that Lwawire Robert Katula who signed CMA FI is one and the same person as Lawrence Katula who is referred to as a fellow employee of those listed in the document, is a submission from the bar which cannot be relied upon for this Court's purposes, because the same is not borne out of the record before us. We confirmed this position with Mr. Luguwa himself, because when we asked him as to where in the record is it stated that Lwawire Robert Katula and Lawrence Katula was one and the same person, he was unable to locate a page with such information. Third, even if we were to assume that the document conferred any powers or mandate on someone, that person was not Lwawire Robert Katula, but Lawrence Katula, who is at least mentioned in it, and not a stranger to the document. Fourth, the document alleged to have conferred mandate to sue, included names of deceased persons; namely; Hassan Ruzyego and Moussa A. Hassani. Rule 5 (3) of the Labour Institutions Rules requires a list of living people with ability to sign in conferring mandate to a third party. In this case, Mr. Luguwa conceded that it was wrong to include those two names in the 13 case, but without discussing the validity of the consequent award in their favour. In this case, for instance the said Hassan Ruzyego and Moussa A. Hassani, who were both deceased at the commencement of the action in the CMA, and eventually at the hearing, were awarded by CMATZS. 23,134,108.00 and T7S. 15,095,565.00, respectively, as may be noted at page 650 of the record of appeal. In our view, for a document conferring powers to do anything to be valid, the same must be executed by signatories who are alive and with ability to sign as required by law. Mr. Luguwa's argument was that dead persons should not affect the rights of those who were alive. With respect, that contention does not address the validity of a document conferring joint powers and the consequent award. Based on this point; one, we think the document was irregular, in that being a joint instrument, it could only contain a list of, and be executed by living signatories. Two, the fact that the CMA award which included a ruling on computation of the appellants' reliefs at page 648 of the record of appeal, contained names and reliefs of two deceased persons, the award was vitiated to the core. On this final point, see this Court's decision in Florian Pantaleo Mtui v. Robert Inyasi Minja, Civil Appeal No. 420 of 2021 (unreported), where it was observed that: "As conceded by the learned counsel for the parties, the anomaly is indeed, a fatal one because, after the 14 1st plaintiff and the 1st defendant had passed away, they should not have appeared as parties in the triai court's proceedings, judgment and decree. Since their names continued to feature as shown above, the proceedings were rendered irregular, and so were the judgment and the decree." Lastly on this point, Mr. Luguwa also argued that as the contested matter is a procedural issue and no party has been prejudiced, then this Court be pleased to gloss over the requirement and hold that irrespective of the defect in the document, the dispute was proper before the CMA. Again, with respect to the learned counsel, although we agree with him that the act of presenting papers or forms to initiate a legal dispute before a dispute resolution forum, is a procedural act, we do not agree with him that the possession of powers or mandate to execute such papers or forms is also procedural. It is our firm position that, possession or lack of mandate to sign a document for purposes of commencement of a legal matter in a dispute resolution forum like the CMA or a court of law, is a serious matter of substantive justice, for the same entails possession or lack of sufficient interest to do so, also called iocus standi, in law. The point is this, the issue of iocus standi is not a procedural step, it is a matter of substantive basis upon which any lawful litigation derives validity. 15 Before concluding this point, we wish to highlight that, we have noted at pages 16 and 17 of the record of appeal, a document, which seems to have relevance to the subject under discussion. The document is titled: "MUHTASARIWA KIKAO CHA WALIOKUWA WAFANYAKAZI WA SHIRIKA LA BIMA LA TAIFA AMBAO WAUACHISHWA KAZI WAKIWA BADO WANAKABILIWA NA KESI YA JINAI KILICHOFANYIKA CBE TAREHE10/02/2009. " Literally translated, the above title in English, could mean the following: " The Minutes o f the Meeting o f Those who Were Workers o f the National Insurance Corporation who were Terminated at the Time When They Were Facing a Criminal Case." That document on page 17 of the record of appeal, lists all those individuals in the list we quoted above, but this time, the heading or caption to the list reads: "Tumekubaii Ndugu Lwawire R. Katuia Atuwakiiishe Katika Shauri Letu ieo Tarehe 10/02/2009. ” The above may be translated to mean: 'We give consent to Mr. Lwawire R. Katuia to represent us in our court case, today lCfh February, 2009.,r The inclusion of the above document in the record of appeal, was strongly challenged by Ms. Msuya. Her reason was that the document was not 16 part of the original record, meaning that the document had never been part of the record at the CMA or at the High Court. On this argument, we were keen and very attentive to listen to Mr. Luguwa on his reaction during his rejoinder, but we were unable to hear him putting up a contrary position. We also carefully went through the original record of both the CMA and the High Court, but were unable to trace the original of the document contained at pages 16 and 17 of the record of appeal. On this point, we wish to state that, rule 96 (1) and (2) of the Tanzania Court of Appeal Rules 2009, provides that only documents upon which a decision was made may be part of the record of appeal. Thus, the act of including the document in the record of appeal, which did not feature anywhere in the CMA or at the High Court, is offensive to the above rule and the said act is illegal. This Court cannot exercise its appellate jurisdiction based on documents that were not brought to the attention of any lower court whose judgment is challenged. In the event, the first ground of appeal has no merit and it is hereby dismissed. Based on the above discussion and the conclusion made, the net effect of all this is like the appellants did not file any labour dispute before the CMA. Thus, this appeal is struck out and the decision of the High Court nullifying the award of the CMA, based on the point discussed in this appeal, is hereby upheld. Finally, as determination of the first ground has the effect of determining the entire appeal, we find it pointless to engage in any more discussion seeking to resolve any other grounds of appeal. Lastly, as this appeal arose from a labour dispute, we make no order as to costs. DATED at DAR ES SALAAM, this 15th day of May, 2024. M. C. LEVIRA JUSTICE OF APPEAL Z. N. GALEBA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered on this 20th day of May, 2024 in the presence of Mr. Gadiel Uroki and Mr. Edward Bachwa, appellants and Ms. Lilian Mirumbe, learned State Attorney for the respondents, is hereby certified as a true copy of the original. DEPUTY REGISTRAR COURT OF APPEAL 18