pastola sagumganga mwasamila others vs ultimate security 2022 tzhcld 677 22 july 2022

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM REVISION APPLICATION NO. 498 OF 2021 (Arising from an Award issued on 26t' August 2021 by Hon. Kiangi, N, Arbitrator in Labour complaint No. CMA/DSM/KIN/849/19 at Kinondoni) BETWEEN PASTOLA SAGUMGANGA MWASAMILA.......................................................... 1stAPPLICANT AMBAKISYE THOMAS LWESYA...................................................2nd APPLICANT HAPPINESS MBERITO MAGOVA......................................................................3rdAPPLICANT HAMISI HASHIMU MSALAMA..................................................... 4th APPLICANT TOPHIANA ERNEST MKWALAKWALA.............................................................. 5thAPPLICANT JAPHET JONATHANI NNKO ANAE................................................................... 6thAPPLICANT NURDIN SALUM SELEMANI...................................................... 7th APPLICANT MSHAMU HAMISI MNALLY......................................................... 8th APPLICANT AND ULTIMATE SECURITY TANZANIA LIMITED.................................. RESPONDENT JUDGMENT Date of last Order: 29/06/2022 Date ofJudgment: 22/7/2022 B. E. K. Mqanqa, J. Brief facts of this application are that; all applicants were employees of the respondent at different capacities. It happened that their employment relationship did do go well, as a result, applicants filed labour complaint No CMA/DSM/KIN/849/19 before the Commission for Mediation 1 and Arbitration hence CMA at Kinondoni complaining that their employment contracts were terminated unfairly. On 28th November 2019, Pastola Sagumganga Mwasamila, the 1st applicant, filed a referral of dispute to the CMA hereinafter referred to as CMA Fl claiming to be reinstated or paid TZS 9,000,000/= as salary compensation for 18 months and TZS 4,000,000/= general damages complaining that his employment was unfairly terminated. Ambakisye Thomas Lwesya, the 2nd applicant who was employed as Junior installation technician, filed CMA Fl on 29th November 2019 claiming to be reinstated or to be paid TZS 18,000,000/= as 30 months' salary compensation and TZS 9,000,00/= general damages. On the other hand, Happiness Mberito Magova, the 3rd applicant who was the Registry Clerk, filed CMA Fl on 28th November 2019 claiming to be reinstated or be paid TZS 10,350,000/= as salary compensation for 30 months and TZS 6,000,000/= general damages. Hamisi Hashimu Msalama, the 4th applicant, who was employed as the mechanics, filed CMA Fl on 28th November 2019 claiming to be reinstated or be paid TZS 10,368,000/=as salary compensation for 24 months and TZS 7,000,000/= general damages. Thophiana Ernest Mkwalakwala, the 5th applicant, who was employed as paramedic II, filed CMA Fl on 29th November 2019 claiming to be reinstated or be paid TZS 20,088,000/= as salary 2 compensation for 36 months and TZS 50,000,000/= general damages. Japhet Jonathan! Nnko Anae, the 6th applicant, who was employed as Operation officer filed CMA Fl on 28th November 2019 claiming to be reinstated or be paid TZS 72,000,000/= as salary compensation for 96 months and TZS 8,000,000/= general damages. Nurdin Salum Seleman, the 7th applicant, who was employed as Mechanics, filed CMA Fl on 29th November 2019 claiming to be reinstated or be paid TZS 16,000,000/=as salary compensation for 30 months and TZS 5,000,000/= general damages while Msham Hamisi Mnally, the 8th applicant, who was employed as investigation officer, filed CMA Fl on 28the November 2019 claiming to be reinstated or be paid TZS 12,000,000/= as salary compensation for 24 months and TZS 5,000,000/= general damages. Apart from the aforementioned applicants, other persons who filed CMA Fl claiming to be reinstated or paid salary compensation at different rates and general damages are Joseph Pius Mawanja, Jenifer Mdigo, Oscar Kinyota, Solomon Herbert Mnkondya and Charles Michael Mtemi. Unfortunately, Charles Michael Mtemi died before conclusion of hearing at CMA leaving the dispute to proceed with 12 complainants. On 26th August 2021, Kiangi, N, Arbitrator, issued an award that applicants signed an agreement to terminate their fixed term contracts 3 hence there was no unfair termination. The arbitrator held that applicants were paid salary for the remaining period of their contracts and that they had no claim against the respondent. The aforementioned applicants were aggrieved by the said award, as a result, they filed this application seeking the court to revise it. In their joint affidavit in support of the application, applicants raised two grounds namely: - 1. Trial Arbitrator erred in law and fact for failure to assign reasons as to why he failed to consider Applicant's Exhibit "TLL3" and resort to consider respondents arguments. 2. Trial Arbitrator erred in law and facts for failure to analyze properly evidence on record hence reached adverse decision against the applicants. In opposing the application, respondent filed the counter affidavit sworn by Tatu Elias, her Human Resources Officer. When the application was called for hearing, Mr. Denis Mwamkwala, the Personal Representative of the applicants appeared and argued on their behalf while Hassan Mwemba, Advocate appeared and argued for and on behalf of the respondent. Mr. Mwamkwala, personal representative of the applicants argued the two grounds jointly. On the merit of the application, Mr. Mwamkwala 4 submitted that applicants were employed under fixed term contract starting from 22nd June 2018 and expiring on 22nd June 2020. He went on that, on 31st October 2019, parties entered into release agreement (exh. D2) and payment of salary for the remaining period of the contract. Mwamkwala submitted further that, the amount that was paid to each applicant was TZS 7,721,138/= as evidenced by exhibit D3. He submitted further that; applicants were not paid salary for October 2019 that could have made the amount payable to each applicant to be 8,471,138/=. He argued that each applicant was not paid TZS 750,000/= and concluded that the arbitrator erred to hold that applicants were paid in accordance with the release agreement. Mr. Mwemba learned counsel for the respondent submitted that each applicant was paid according to contract he or she entered. He submitted that the contract of the 6th applicant commenced on 22nd June 2018 expiring on 22nd June 2020, but the said applicant entered early release agreement on 30th October 2019. He went on that the 6th applicant was paid for the remaining period from November 2019 to June 2020. Mr. Mwemba learned counsel for the respondent submitted further that, the contract of the 2nd applicant commenced on 27th September 2017 expiring on 26th September 2019, but 2nd applicant entered early release agreement 5 on 30th October 2019. He submitted that the 2nd applicant was paid for the remaining period from November 2019 to September 2021 because there was automatic renewal. Mr. Mwemba went on that, the 3rd applicant's fixed term contract of employment started on 28th December 2017 and was expiring on 27th December 2019. That, upon termination of her employment, she was paid for the period from November 2019 to 27th December 2021 because she entered early release agreement on 30th October 2019. He submitted further that, the 4th applicant's contract of employment commenced on 02nd January 2017 expiring on 01st January 2019 and that there was automatic renewal after that period hence the contract was expiring on 1st January 2021. He went on that, the 4th applicant entered early released agreement on 30th October 2019. Counsel for the respondent submitted that the 4th applicant was paid for the remaining period from November 2019 to 01st January 2021. Counsel for the respondent submitted that the 5th applicant's two years fixed term contract of employment commenced on 29th September 2017 expiring on 29th September 2018, but it was renewed automatically expiring on 28th September 2021. Counsel went on that, the 5th applicant 6 entered into early release agreement on 30th October 2019. He submitted further that 5th applicant was paid for the remaining period of the said fixed term contract from November 2019 to 28th September 2021. Counsel for the respondent submitted further that the 7th applicant's two years fixed term contract commenced on 27th January 2019 expiring on 26th January 2021 but on 30th October 2019 the 7th applicant entered early release agreement terminating the said contract. Counsel went on that the 7th applicant was paid for the remaining period of the said fixed term contract from November 2019 to 26th January 2021. Mr. Mwemba learned counsel for the respondent submitted that the 8th applicant's two years fixed term contract commenced on 29th November 2017 expiring on 28th November 2019, but on 30th November 2019 the 8th applicant entered early release agreement terminating the said contract. Counsel for the respondent submitted further that, the 8th applicant was paid for the remaining period of the said fixed term contract from November 2019 to 28th November 2021. Mr. Mwemba submitted also that the 1st applicant's two years fixed term contract commenced on 14th October 2017 expiring on 13th October 2019, but it was renewed automatically expiring on 13th October 2021. Counsel submitted that on 30th October 2019, the 1st applicant entered into early release agreement 7 terminating the said contract and that 1st applicant was paid for the remaining period of the said fixed term contract from November 2019 to 13th October 2021. Mr. Mwemba learned counsel for the respondent submitted further that, applicants admitted in their evidence at CMA that they were paid their entitlement according to the agreements they entered as shown in payment slips (exhibit D3) and release agreements (Exhibit D2). He went on that; the money applicants were paid were deposited in bank accounts of each applicant. He argued that none of the applicants brought at CMA a bank statement to show that the money was not credited. Counsel concluded by praying that the application be dismissed for want of merit. In rejoinder, Mr. Mwamkwala, the personal representative of the applicants submitted that, applicants do not dispute payments from November 2019 to the remaining period of their two-years fixed term contracts. He contended that their dispute is that they were not paid salary for October 2019 that is gross salary of TZS 750,000/= each. I have carefully examined the CMA record and considered submission of the parties in this application. From the submissions of the parties, it is undisputed that applicants had a two-years fixed term contract of 8 employment that was terminated on 30th October 2019. It is also undisputed that after termination of the said two-years fixed term contract, applicants and the respondent entered into early release agreement and that applicants were paid salary for the remaining period of their contracts. I have read evidence of Joseph Kandidus Goliama (DW1) for the respondent, Mishamu Hamis Mnali(PWl), Joseph Jonathan Nnko(PW2), Happiness Mbereto Magova(PW3), Tophiana Ernest Mkwalakwala(PW4), Ambakisye Thomas Lwesya(PW5), Nurdin Salum Salama(PW6), Hamisi Hashim Msalama(PW7) and Pastola Sagumganga(PW8) the only witnesses who testified for the applicants and find that all testified that parties entered early release agreement leading to termination of their contracts. All witnesses testified that each applicant was paid for the remaining period of the fixed contract after termination employment. It was submitted by Mr. Mwamkwala, the personal representative of the applicants that applicants were claiming to be paid TZS 750,000/= being salary for October 2019 which they were not paid. With due respect to Mr. Mwamkwala, none of the witness who testified on behalf of the applicant stated so in his or her evidence. More so, none of the applicants indicated in his or her claims in the CMA Fl that he/she was claiming to be paid TZS 750,000/= being salary for October 2019. Since this was not a claim at 9 CMA, it cannot be brought at this stage because parties are bound by their pleadings as it was held in the case of George Shambwe v. AG and Another [1996] TLR 334, The Registered Trustees of Islamic Propagation Centre (Ipc) v. The Registered Trustees of Thaaqib Islamic Centre (Tic), Civil Appeal No. 2 of 2020, CAT (unreported) and Astepro Investment Co. Ltd v. Jawinga Company Limited, Civil Appeal No. 8 of 2015, CAT (unreported) to mention but a few. That being the position, submissions by Mr. Mwamkwala that applicants were claiming to be paid TZS 750,0000/= as salary for October 2019 is not born out of evidence. It is submissions from the bar, which, is not evidence, as it was held in the case of Dr. A Nkini & Associates Limited v. National Housing Corporation, Civil Appeal No 75/2015, Republic v. Donatus Dominic @ Ishengoma & 6 Others, Criminal Appeal No. 262 of 2018, Morandi Rutakyamirwa v. Petro Joseph [1990] T.L.R 49] and The Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman Bunju Village Government, Civil Appeal No. 147 of 2006 to mention but a few. In Bunju Village's case (supra) the Court of Appeal held: - "... submissions are not evidence. Submissions are generally meant to reflect the genera! features of a party's case. They are elaborations or explanations on io evidence already tendered. They are expected to contain arguments on the applicable law. They are not intended to be a substitute for evidence". Since the claim of TZS 750,000/= as salary for October 2019 was not among the claims by the applicants at CMA, and since there is no evidence to that effect, I dismiss that claim for being unfounded. I tried to point out at the beginning of this judgment what each applicant indicated in the CMA Fl as his or her claims. From the CMA record, the claim for October 2019 was not substantiated and cannot detain me in this application. In the joint affidavit, applicants criticized the arbitrator that he failed to analyze properly evidence of the applicants. I have gone through the CMA record and the CMA award and find that the arbitrator analyzed evidence and arrived at a proper conclusion that applicants had no claim against the respondent because they were paid their entitlements as reflected by evidence of the parties. I therefore dismiss the 2nd ground of revision. In the 1st ground, it was complained by the applicants that the arbitrator failed to assign reasons as to why he failed to consider Applicant's Exhibit "TLL3" and resort to consider respondent's arguments. I have examined the CMA record and find that there is no exhibit that was tendered by the applicants that was admitted and marked as TLL3. In ii connection to that, there. Is no suggestion that applicants attempted to tender an exhibit and that their attempt failed. Therefore, the complaint that the arbitrator failed to consider exhibit TLL3 bears no support. I therefore dismiss this ground too. For all what I have discussed hereinabove, I dismiss this application for want of merit. Dated at Dar es Salaam this 22nd July 2022. B. E. K. Mganga JUDGE Judgment delivered on this 22nd July 2022 in the presence of Denis Mwamkwala, Personal Representative of the applicants and Hassan Mwemba, Advocate for the respondent. 12