CIVIL APPEAL NO 471 OF 2022 PAULI SHAO T

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI f CORAM: MWARIJA. 3.A.. KEREFU. 3.A.. And KAIRO. J.A.^t CIVIL APPEAL NO. 471 OF 2021 PAULI SHAO T/A AFRICANA GUEST HOUSE.............................APPELLANT VERSUS NEEMA GABRIEL MAIKO ................................................ RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Moshi) (Mwenempazi, 3.^ dated the 29th day of October, 2021 in Labour Revision No, 16 of 2021 JUDGMENT OF THE COURT 22nd October & 19th November 2024 KAIRO. J.A.: The appellant in this appeal seeks to challenge the decision of the High Court of Tanzania, Labour Division at Moshi in Labour Revision No. 16 of 2021 dated 29th October, 2021. In the said application, the appellant had sought to revise and set aside the whole award of the arbitrator in the Commission for Mediation and Arbitration (the CMA) at Moshi in Labour Dispute Ref. No. CMA/KLM/MOS/ARB/08/2021 into which the CMA found in respondent's favour. The background of this dispute as discerned from the record of appeal, is not difficult to comprehend. The appellant, who was also trading as Africana Guest House, employed the respondent effective in June, 2020 at a monthly salary of T7S. 90,000.00. The respondent had worked for six (6) months but contended that, she was paid only TZS. 150,000.00 by the appellant. Her claim for payment of the remaining amount did not bear fruits and thus, she decided to approach the CMA claiming to be paid the salary arrears amounting to TZS. 450,000.00 as according to her, the agreed salary amount was TZS. 100,000.00 per month. The appellant denied the respondent's claim asserting that, he had paid her, all of her salaries for six months she had worked and he owe her nothing. Following the failure of the mediation process, the matter escalated to arbitration. Upon hearing of the evidence by the parties, the arbitrator on 16th April, 2021 ruled out that, the respondent's claim for unpaid salaries was genuine. The arbitrator also revisited the law on payment of wages; the Labour Institutions Wage Order, 2013, GN. No. 196/2013, and noted that, the appropriate salary payable to an employee working in a Guest House is TZS. 130,000 monthly and not TZS. 90,000.00 agreed upon by the parties in this matter. The arbitrator therefore, calculated the proper salary for six months, then, deducted the already paid sum of TZS. 150,000.00 and concluded that, the appellant still owes the respondent TZS. 630,000.00 as unpaid salaries. The arbitrator further ordered the appellant to pay TZS. 1,000,000.00 as costs for his contemptuous behaviour before the Tribunal in terms of section 88 (8) (now section 88 (10) of the Employment and Labour Relations Act, Cap. 336 R.E. 2019 (the ELRA) as amended by Act No. 17 of 2010. He was further ordered to make good the said payments within 14 days effective from the date of the award. Unhappy with the arbitrator's decision, the appellant unsuccessfully filed the application for revision at the High Court. Still adamant, the appellant decided to lodge this appeal armed with the following grounds: - 1. That,■the High Court erred in law by not determining the ground o f revision to the effect that the Commission for Mediation and Arbitration in Labour dispute Ref. No. CMA/KLM/MOS/ARB/O8/ 2021 erred in fact by alleging fraud against the applicant therein. 2. That, the High Court erred in interpreting the provisions of section 88 (10) and section 27 (5) of the ELRA and its application. 3. That\ the High Court erred in fact and law in allowing the punitive damages of TZS. 1,000,000.00 without full regards to the proceedings during arbitration. The appellant therefore prayed the Court to allow this appeal by setting aside the judgment and decree of the High Court and further quash and set aside the ruling and award of the CMA, together with any further order the Court may deem just to grant. At the hearing of the appeal, both the appellant and the respondent appeared in their personal capacities. In his brief submission, the appellant amplified the grounds of appeal collectively, praying the Court to consider and allow them. He went on to submit that, he had paid the respondent all of her salaries and was accordingly signing to acknowledge receipt of the same. On that account, he contended, her denial was surprising. He referred us to pages 20 to 21 of the record of appeal to back up his assertion. It was the appellant's further submission that, he had no qualms with the observation by the arbitrator that the proper salary which was supposed to be paid to the respondent was TZS. 130,000.00 monthly and not TZS. 90,000.00 he used to pay her. In that regard, he was ready to pay the respondent the total difference of TZS. 240,000.00 being salary arrears for the six months she had worked with the appellant. However, he vehemently denied to have rebuked and argued with the arbitrator. On that basis, he argued, the order imposed on him to pay TZS. 1,000,000.00 as costs, was unjustified. The respondent on her part submitted that, it was correct to order the appellant to pay TZS. 1000,000.00 as costs for his unbecoming conduct of arguing with the arbitrator during the court proceedings. She also insisted that, for the six months she worked, only TZS. 150,000.00 was paid to her by the appellant as salaries. She however admitted that, she signed the documents appearing at pages 20 to 21 referred by the appellant when probed by the Court. After hearing the parties' submissions, the main issue for our determination is whether or not the appeal is meritorious. From the outset we wish to state that, we shall address the grounds of appeal collectively, in a way addressing the contentious issues raised. There is no dispute in this appeal that, the respondent was employed to work in the appellant's guest house. Further, there is no dispute either that, the respondent worked for a period of six months. It is also not in dispute that, according to Labour Institution Wage Order 2013, GN. No. 196/2013, the employee working under the Sectors/Areas of Restaurants, Guest Houses or Bars, are required to be paid a monthly salary of TZS. 130,000.00 as correctly noted by the arbitrator. However, they parted ways on two issues; one; the actual amount paid by the appellant to the respondent as salaries, two; the justification of the order to pay TZS. 1,000,000.00 as costs in terms of section 88 (10) of the ELRA. We shall start to determine issue number one. During her submission, the respondent firmly asserted that, the respondent had only paid her TZS. 150,000.00 as salaries for the whole period of six months she had worked for him. On the other hand, the appellant refuted the said contention insisting that, the respondent was paid all of her dues in terms of salaries and he owed her nothing. Basing on their rival assertions, the wanting question is whether the appellant has paid the respondent all of her salaries for the six months she had worked for him. It is trite principle of law in civil matters that he who alleges must prove. In our jurisprudence, the principle has its backing in section 110 and 111 of the Law of Evidence Act, Cap 6 R.E. 2019 which state as follows: "110. Whoever desires any court to give judgement as to any iegai right or liability dependent on existence of facts which he asserts must prove that those facts exist 111.The burden of proof in such suits lies on that person who would faii if no evidence at all were given on either side." Principally, the party with the said legal burden also bears the evidential burden to so prove, the standard being on the balance of probabilities. We have discussed the principle in our various decisions including the cases of Paulina Samson Ndawavya vs Theresia Thomas Madaha, Civil Appeal No. 45 of 2017 [2018] TZCA 218 (12 October 2018) TanzLii, Mary Agnes Mpelumbe vs. Shekha Nasser Hamad, Civil Appeal No. 136 of 2021 [2022] TZCA 408 (8 July 2022 TanzLii and Oliva James Sadatally vs Stanbic Bank Tanzania Limited, Civil Appeal No. 84 of 2019 [2022] TZCA 388 (17 June 2022) TanzLii, to mention but a few. In proving his assertion, the appellant referred us to pages 21 to 22 of the record of appeal. Upon our thorough scrutiny of the referred pages of the record, we observed that, they contain the asserted acknowledgement receipts by the respondent when receiving her salaries. When enquired from the respondent as to whether the referred documents were written by her, she admitted with no reservation. Closer look at the said records, we noted that, they contain acknowledgement of the said payments for the months of June, August, October, November, and December, 2020; that is a total of five months. Since the total number of the months the respondent worked were six, it is clear that the appellant has paid the salaries to the respondent for five months only and not for six months as he submitted. Though, some of the acknowledgement receipts at pages 20 to 21 of the record of appeal do not state the amount received, for example in the months of June, August and October, but since it was indicated therein that, what was received was the salary for the respective month, which as agreed upon was TZS. 90,000.00, then we have no doubt that, the respondent received the said agreed sum notwithstanding the non-indication of the amount in the said receipts. Basing on what we have discussed therefore, the respondent was paid a total of TZS. 540,000.00, being TZS. 90,000.00 as agreed salary per month, times 5 months acknowledged by the respondent to have received the same as per the record of appeal at pages 21 to 22. However, we are aware that, the respondent was supposed to be paid TZS. 130,000.00 per month, hence, a shortfall of TZS. 40,000.00 each month for the five months she was paid, making the total salary arrears of TZS. 200,000.00. In addition to that, the appellant is supposed to pay the respondent the saiary of one month, that is TZS. 130,000.00 noted to have not been paid to her as per the acknowledgement receipts at pages 21 to 22 of the record of appeal. In the final analysis, the appellant owes the respondent a total sum of TZS. 330,000.00 to which we order the appellant to pay to her accordingly. Regarding the second issue, the contention hinged on the arbitrator's order to award the respondent the costs of TZS. 1,000,000.00 under section 88 (10) of the ELRA for contemptuous behaviour involving scolding and arguing with the arbitrator during the CMA proceedings. The appellant refuted the allegations arguing that, there was no evidence to support the allegation, thus the order was unjustified and prayed the Court to set it aside. On her part, the respondent contended that, the order was valid and it should be left to stand as the appellant depicted unbecoming behaviour by scolding and arguing with the arbitrator during the proceedings at the CMA. Our starting point in this argument is section 88 (10) which provides as hereunder: "An arbitrator may make appropriate award but not any order for costs unless a party or a person representing a party acted in a frivolous or vexatious manner. " [emphasis added]. The issue to be addressed therefore is whether the appellant acted in frivolous or vexatious manner. Our address to the argument has two limbs; one; whether the appellant has scolded and exchanged arguments with the arbitrator. If yes, two; whether the conduct amounts to acting in frivolous or vexatious manner in law thus, falling under the ambit of the referred provision. As alluded to above, the reason for the arbitrator to give the order in contention was the alleged appellant's conduct of scolding and arguing with the arbitrator during the proceedings at the CMA. The decision was wholly upheld by the High Court. We have gone through the record of appeal, particularly the CMA proceedings but failed to locate where such behaviour was displayed by the appellant. It is expected that, the alleged unbecoming behaviour would have been reflected in the proceedings at the time of recording the evidence. In the absence of such recording, we are inclined to agree with the appellant that, there was no evidence to that effect as the record does not so support. We are therefore of the firm view that, it was not correct for the arbitrator to come up with the said conclusion in his judgment while there was nothing in the record to support it. Unfortunately, the High Court also was caught in that trap by uphold the judgment which gave unsubstantiated order. By doing so, the High Court strayed into an error, with much respect. Regarding the second limb, its pertinent to define the terms frivolous and vexatious. According to the Black's Law Dictionary, 8th Edition Edited by Brian A. Garner at page 692, the word frivolous is defined to mean something lacking legal basis or legal merit, not serious, not reasonably purposeful. It was further defined in the dictionary that, the term vexatious (of conduct) means; without reasonable or probable cause, or excuse, harassing or annoying. Applying the stated definitions to the facts at hand, we can state without hesitation that, even if the allegations were substantiated, which was not the case, we don't think they fit in the definitions above given. As such, the provision would still be inapplicable in the circumstances of the case. We are very much aware of the settled principle that the Court should reluctantly interfere with the concurrent findings of the two courts below, except where there is misdirection or non-direction or misapprehension of evidence or some principle of law or procedure which have occasioned miscarriage of justice [See: The Director of Public Prosecutions vs Jaffari Mfaume Kawawa [1981] T. L. R. 149, Neli Manase Foyo vs Damian Mlinga, Civil Appeal No. 25 of 2002 [2004] TZCA 53 (27 October 2004) TanzLii and Shakila Lukas vs Ramadhani Sadiki, Civil Appeal No. 349 of 2020 [2024] TZCA 36 (14th February 2024) TanzLii, In Nelly Manase Foya (supra) the Court stated the following in that regard "It has often been stated that a second appellate court should be reluctant to interfere with a finding of fact by a trial court, more so where a first appellate court has concurred with such a finding of fact... As was said by Sir Kenneth O'Connor,\ P. of the defunct Court of Appeal for Eastern Africa in the case o f Peter versus Sunday Post Limited (1958) EA 424 page 429. It is a strong thing for an appellate court to differ with the finding, on a question of fact, of the judge who tried the case, and who had the advantage o f seeing and hearing witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution. It is not enough that the appellate court might itself come to a different conclusion (see also Watt or Thomas v. Thomas (1047 AC 484))." Basing on the analysis and the authorities cited, we are of the view that, the decision to uphold the CMA order for payment of TZS. 1,000,000.00 for the reason which was not backed up by the record, was a misapprehension of evidence thus, unjustifiable. It has occasioned injustice to the appellant, as such, cannot be left undisturbed. In fine, we vary the order to pay TZS. 1,630,000.00 to the respondent and replace it with the order to pay TZS. 330,000.00 to the respondent as salaries not paid by the appellant as above analysed. We further set aside the order of payment of TZS. 1,000,00.00 imposed by the arbitrator on the appellant and upheld by the High Court. Subsequently, we allow the appeal to the extent stated above. Being a labour matter, no costs is awarded. DATED at MOSHI this 15th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL Judgment delivered this 19th day of November 2024 in the presence of both parties in persons through video conference from Moshi High Court, is hereby certified as a true copy of the original.