QSTEK FARMING LTD V

IN THE HIGH COURT OF TANZANIA

LABOUR DIVISION

AT DAR ES SALAAM REVISION APPLICATION NO. 10218 OF 2024 (Arising from Award issued on 02/4/2024 by Hon. Makanyaga, A. A., Arbitrator, in Labour Dispute No. CMA/DSM/KIN/309/2023/185/2023 at Kinondoni) QSTEK FARMING LTD .……………………..…..……….. APPLICANT

VERSUS SAADATH IDRISSA …………………....................... RESPONDENT

JUDGMENT Date of Last Order: 9/08/2024 Date of Judgment: 12/08/2024 B.E.K. Mganga, J. Brief facts of this application are that, on 5th August 2021, Qstek Farming Ltd, the abovenamed applicant, entered a two-year fixed term contract of employment with Saadath Idrissa, the abovenamed respondent. It is undisputed by the parties that, the respondent was employed as Sales and Marketing Manager. It is also undisputed by the parties that, on 03rd May 2023 applicant terminated employment contract of the respondent. Aggrieved with termination of his employment, respondent filed labour dispute No. CMA/DSM/KIN/309/2023/185/2023 before the 1 Commission for Mediation and Arbitration (CMA) at Kinondoni. In the referral form(CMA F1), respondent indicated that applicant breached the contract of employment. In the said CMA F1, respondent indicated further that, he was claiming to be paid TZS 20,968,260/= as compensation. On 02nd April 2024, Hon. Makanyaga, A. A., Arbitrator, having heard evidence of the parties, issued an awarded in favour of the respondent that he is entitled to be paid TZS 9,765,900/=. Applicant was dissatisfied with the said award hence this application for revision. In support of the Notice of Application, applicant filed the affidavit sworn by Emmanuel Nagunwa, her principal officer. In the said affidavit, applicant raised Four (4) grounds namely:- 1. That the arbitrator erred in law and facts by denying applicant fundamental right to be heard on ground that applicant failed to bring witness while arbitrator was aware that applicant and respondent were negotiating settlement.

2. That the honourable arbitrator erred in law and facts by awarding the respondent remedies which were never pleaded on CMA F1, and by using salary and performance allowances figures which did not belong to respondent despite evidence tendered by respondent himself.

3. That the honourable arbitrator’s award was issued with material irregularities by awarding respondent remedies which he was already paid despite of the evidence tendered at the CMA.

4. The arbitrator erred in law and fact by finding that respondent was unfairly terminated both substantively and procedural while the claim before CMA was for breach of contract. 2 Resisting the application, Mr. Lameck Swinney Yengayenga, the personal representative of the respondent, filed his counter affidavit on behalf of the respondent. When the application was called on for orders, Mr. Yengayenga the personal representative of the respondent and Mr. Remmy Ephraim William, learned counsel for the applicant, prayed the application be disposed by way of written submissions, as a result, an order was issued to that effect. In complying with the order of the court, applicant continued to enjoy the service of Mr. Remmy Ephraim William, learned advocate while respondent continued to enjoy the service of Mr. Lameck Swinney Yengayenga, his personal representative. In his written submissions on behalf of the applicant, Mr. William, learned advocate abandoned the 4th ground and argued the remaining grounds. Arguing in support of the 1st ground, counsel for the applicant submitted that, the award and proceedings were not only arbitrary but was also unreasonable because, applicant was deprived her right to fair hearing. Learned counsel submitted further that, there was contravention of the cardinal principle of natural justice, as a result, the entire proceedings were vitiated. He

added that, fair hearing entails the right of parties to call and lead their witnesses to adduce evidence as 3 well as right to be represented. He went on that, on 26th January 2024, the Arbitrator closed applicant’s case despite the fact that, applicant’s counsel informed the Commission that parties have already settled the dispute out of the Commission and showed the Arbitrator proof of payment. It was further submitted on behalf of the applicant that, that was violation of Article 13 (6) (a) of the Constitution of the United of Tanzanias as well as the principles of natural justice. Counsel cited the case of Highland Estate Ltd. vs Kampuni ya Uchukuzi Dodoma Ltd & Another, Civil Application No. 183 of 2004, CAT(unreported) to support his submissions that, a decision which is arrived at, in violation of the basic right to a fair hearing is a nullity even if the same decision would have been reached had the party been heard fairly. Mr. William submitted further that, on 29th November 2023, applicant informed the Arbitrator that, parties are in negotiations of settling the dispute amicably. He added that, parties reached their agreement on 07th December 2023 whereby applicant agreed and paid respondent TZS 1,500,000/= being three months salaries of the remaining period of the contract. He added that, respondent was given an opportunity to be reinstated but the moment he

pocketed the said amount, he never turned back to sign the settlement agreement. Counsel for the applicant went on that, therefrom, respondent’s mobile 4 phone became unreachable and that, he ceased to appear before the Commission. It was further submitted on behalf of the applicant that, on 12th December 2023, when parties were before the Arbitrator, the arbitrator was notified that position but didn’t record what applicant’s counsel submitted. He added that, instead, the arbitrator adjourned the dispute to another date of hearing. Counsel for the applicant further submitted that, on 26th January 2024, arbitrartor was notified of the said setttlement and provided proof of payment, but respondent’s counsel informed the arbitrator that he doesn’t have any information of settlement from the respondent. Based on that, the arbitrator proceeded to close applicant’s case on ground that applicant has failed to her call witnesses. Learned counsel for the applicant cited the case of Abdallah Kondo vs Republic Criminal Appeal 322 of 2015, CAT(unreported) and submitted that, though the arbitrator has power to control or regulate proceedings, he/ she had no power to close the applicant’s case while being aware of the ongoing settlement. He added that, the arbitrator was supposed either to dismiss the complaint or to summon respondent to address the commission on the status of the

settlement, but the arbitrator erroneously, closed applicant’s case without verifying the truth of the applicant’s story. With those submissions, counsel for the 5 applicant prayed the court to nullify CMA proceedings, quash and set aside the award. Arguing jointly the 2nd and 3rd grounds, counsel for the applicant submitted that, in CMA F.1 respondent prayed only two remedies namely, (i) compensation of TZS 20,968,260/= and (ii) to be issued with a certificate of service. Counsel for the applicant further submitted that, in his evidence, respondent testified that, his monthly salary was TZS 575,000/= as per exhibit S-2. He added that, in termination letter, respondent was paid TZS 575,000/= as one Months salary in lieu of notice, TZS 575,000/=as salary for April, and leave TZS 328,571/= but in the award, respondent was awarded the same remedies despite the fact that, respondent testified that, on termination, he was paid notice, leave and April salary. Counsel submitted further that, arbitrator computed respondent’s entitlement by using basic salary and performance allowances without giving reasons or justifications for doing so. Mr. William submitted further that, employment contract like any other contract, may be amended, altered, or modified by the parties at any time. He argued that, initially, basic salary of the respondent was TZS 1,150,000/= per months (exhibit S-1)

and performance allowance was TZS 575,000/= but later on, parties agreed to adjust salary, as a 6 result, basic salary and performance allowance became TZS 575,000/= and TZS 1,150,000/= respectively. Counsel further submitted that, salary adjustment was done on 1st November 2022, as a result, at all time before temination, respondent was paid TZS 575,000/= as basic salary according to their mutual agreement. With those submissions, counsel for the applicant prayed the court to issue an order that, respondent is not entitled to any remedies because he was already paid his terminal benefits and the remaining period of the contract as per exhibit S-3. Arguing against the 1st ground of the application, Mr. Yengayenga, the personal representative of the respondent, submitted that, applicant was given numerous chances to bring her witness before the commission but did not and gave unjustifiable reasons. He added that, after numerous adjournments, on 26th January 2024, the arbitrator closed applicant’s case because, the latter showed no intention of calling her witness. He cited the provisions of section 87(3) of the Employment and Labour Relations Act[Cap. 366 R.E. 2019] and rule 14(1) and (2) of the Labour Institutions (Mediation and Arbitrations Guidelines) Rules, G.N. No. 67 of 2007 to support his submissions that the arbitrator has power to regulate proceedings including closing

applicant’s case. It was further submitted by the personal representative of the respondent that, there was no evidence proving that the parties entered 7 settlement outside CMA. Mr. Yengayenga added that, on 12th December 2023, arbitrator did not record applicant’s submission because, applicant was asked to adduce evidence relating to settlement but failed to do so. The personal representative of the respondent further submitted that, on 26th January 2024, counsel for the applicant failed to submit proof of payment done to the respondent. On the second ground, Mr. Yangayenga submitted that, the scale used by the arbitrator in awarding the respondent was based on evidence. He further submitted that, in CMA F1 respondent claimed to be paid TZS 20,968,260/= but arbitrator awarded him TZS 9,765,900/= leaving the deducted amounts. On the third ground, the personal representative of the respondent submitted that, the arbitrator awarded respondent based on the contract of employment between the parties. On allegation that respondent was involved in settlement negotiations, the personal representative cited the case of Security Group (T) Limited vs Livingstone Michael Lyanga, Labour Revision No. 56 of 2017, HC(Unreported) to the position that, he who alleges must prove and concluded that proof of settlement was wanting. With those submissions, the personal representative of the

respondent prayed the application be dismissed for want of merit. 8 In rejoinder, counsel for the applicant submitted that, in his evidence, respondent admitted to have received payments in exhibit S-3. He added that, in final submissions at CMA applicant attached proof of payments as the parties agreed to settle the dispute. When I was composing the judgment, I went through the CMA record and noted that, there is one legal issue though raised by the applicant was not covered properly in his submissions. I noted that, applicant was not asked to comment whether she has objection for exhibits to be admitted or not, but the same exhibits were considered by the arbitrator in the award. With those observations, on 30th July 2024 when the parties appeared before me for judgment, I notified them my observations and asked them to submit on whether exhibits were properly admitted and the effect thereof. Both Mr. William, learned counsel for the applicant and Mr. Yengayenga, the personal representative of the respondent, upon being shown CMA proceedings, prayed the application be adjourned so that they can appear on another date to submit on the issues raised by the court. Based on their prayer, and by consensus, I adjourned this application for hearing on 6th August 2024. When the application was called on for hearing on 6th August 2024, Mr. Yengayenga, the personal representative of

the respondent, appeared in court and prayed for adjournment. Counsel for the applicant 9 had no objection. Again, by consensus, the application was scheduled for hearing on 9th August 2024. On the latter date, the personal representative did not enter appearance and without notice. With the above occurrence of events and considering that appearance was only done through out by the said personal representative and further considering the claim by counsel for the applicant and what was recorded in the CMA proceedings, I allowed counsel for the applicant to submit on the issues raised by the court. I took that position because, the personal representative of the respondent wants this application to be delayed unnecessarily. In addition to that, what I raised suo moto to some extent was raised by the applicant in the 1st ground though was not properly covered in his submissions, as such, respondent was aware of the issue but did not cover them in his written submissions. Responding to the issues raised by the court, counsel for the applicant submitted that, at CMA, respondent prayed to tender three documents and the same were admitted as exhibit S1, S2 and S3. He added that, those exhibits were improperly admitted because proceedings do not show that applicant was afforded right to comment before admitting the said exhibits in evidence. He went on that, CMA proceedings only shows

that the arbitrator indicated that there was no objection. It was further submission of counsel for the applicant that, 10 the said exhibits were considered and were the base of the award tha was issued in favour of the respondent. Counsel further submitted that proceedings were vitiated by the said irregularity and prayed CMA proceedings be nullified, the award be quashed and set aside, and order trial de novo before a different arbitrator. In support of his submissions, counsel for the applicant cited the case of Shemsa Khalifa & 2 Others v. Suleiman Hamed, Civil Appeal No. 82 of 2012, CAT(unreported). It is true as submitted by counsel for the applicant that, there is no doubt that the said exhibits were admitted into evidence in violation of the principles of natural justice because applicant was denied fair hearing. I am of that view because, applicant was not asked to comment prior to admission of the said exhibits into evidence. Since those exhibits were wrongly admitted without asking applicant to comment prior to their admissions, they cannot be considered as part of evidence. See the case of Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal No.70 of 2018) [2021] TZCA 265 (25 June 2021), Total Tanzania Ltd vs Samwel Mgonja (Civil Appeal 70 of 2018) [2021] TZCA 265 (25 June 2021), Mhubiri Rogega Mong'ateko vs Mak Medics Ltd (Civil Appeal 106 of 2019) [2022] TZCA 452 (20

July 2022) and Zanzibar Telecommunication Ltd vs Ali Hamad Ali & Others 11 (Civil Appeal 295 of 2019) [2020] TZCA 1919 (18 December 2020) to mention just a few. As pointed out hereinabove, applicant was deprived her right to fair hearing hence breach of natural justice principles. Any decision arrived at, in violation of the right to be heard, is a nullity as it was held in the case of Wegesa Joseph M. Nyamaisa vs Chacha Muhogo (Civil Appeal 161 of 2016) [2018] TZCA 224 (27 September 2018), Said Mohamed Said vs Muhusin Amir & Another (Civil Appeal 110 of 2020) [2022] TZCA 208 (25 April 2022) and CRDB Bank PLC vs The Registered Trustees of Kagera Farmers Trust Fund & Others (Civil Appeal No. 496 of 2021) [2024] TZCA 94 (23 February 2024) to mention but a few. In CRDB’s case (supra) the Court of Appeal held inter-alia that: - “It is trite law that, any decision affecting the rights or interest of any person which is arrived at without such person being afforded a right to be heard, is a nullity even if the same decision would have been arrived at had the effected party been heard.” I should point out in a passing that, it was submitted on behalf of the applicant that, arbitrator erred to close evidence of the applicant. It was also submitted on behalf of the respondent that, closure of applicant’s evidence by the arbitrator was justifiable because applicant failed to call her

witnesses. I have examined the CMA record and find 12 that, on 26th January 2021, proceedings shows that Davis Vedastus, advocate appeared for the applicant while Timothy Ndunguru, advocate appeared for the respondent. CMA proceedings for 26th January 2021 shows as hereunder:- “ Davis: Mh settlement tumefanikiwa kumlipa Sadath Miezi mitatu. Lakini pia tulikuwa na plan ya kumrudisha kazini m/kaji. Lakini issue ya kurudi kazini imekuwa changamoto kutokana na mawailiano ya m/kaji. Haokei simu. Lakini miezi miatu iliyokuwa imebakia katika mkataba wake tayari tayari ameshalipwa. Thimonthy: Mh mbele ya Tume hakuna Ushahidi wa kuonesha malipo yamefanyika kwa m/kaji. Hivyo hakukuwa na settelement yoyote na kwa mjibu wa taarifa kutoka kwa mteja wangu hajawahi kukutana na m/kaji na wala hakujawahi kuwa na mazungumzo yoyote ya settlement baina yake na m/kiwa na hivyo kama amri ya mwisho ya Tume ilivyokuwa kwamba akishindwa kuleta shahidi basi Ushahidi wake utafungwa na tupate maelekezo mengine. Davis: Mh upande wetu tunaona kwamba m/kaji ameshindwa kuwasilisha taarifa sahihi kwa wakili wake kuhusiana na issue ya settlement na malipo kwa wakili wake hivyo tunaomba kama tume itaona ni sawa tupate ahirisho fupi ili wakili aweze kuwasiliana na mteja wake. Tume: Baada ya Tume kuona mwenendo wa m/kiwa kila siku kuomba mahairisho na kutoa taarifa za malipo mbele ya tume pasipo

uthibitisho. Lakini pia kutokana na ahirisho la mwisho kuwa akishindwa kuleta shahidi iwapo settlement imeshindikana. Tume inafunga Ushahidi wa m/Kiwa. Hivyo wadaawa wanatakiwa kuleta maelezo yao ya mwisho tarehe 09/03/2024. Uamuzi tarehe 12/03/2024 saa 7:00 mchana. Imeamriwa.” (Emphasis is mine). It is clear from the quoted submissions by the parties and an order of the arbitrator that, respondent was, at that time, not present at CMA, 13 which is why, counsel for the applicant prayed for short adjournment so that counsel for the respondent can consult him. It is also clear as quoted hereinabove that, Mr. William, counsel for the applicant in this application and Mr. Yengayenga, the personal representative of the respondent, did not represent the parties at CMA and were not present on the date the arbitrator closed the case for the applicant. That said, I find that submissions made on behalf of the parties on allegation that the arbitrator did not record properly what was submitted cannot be valid because, they cannot have personal knowledge of what transpired in their absence. Assuming that their allegations against the arbitrator is true, of which there is no evidence, those allegations remain to be hearsay, hence cannot be acted upon by this court. More so, their allegation that CMA proceedings are not reflecting what transpired on that date cannot be lightly accepted. I am

of that considered view because, court proceedings are deemed to be authentic until proved otherwise. See the case of North Mara Gold Mine Limited vs Khalid Abdallah Salum (Civil Appeal No.463 of 2020) [2022] TZCA 1 (10 January 2022), Jacquiline Ntuyabaliwe Mengi & Others vs Abdiel Reginald Memgi& Others (Civil Application 332 of 2021) [2022] TZCA 748 (1 December 2022) and Halfani Sudi vs Abieza Chichili (Civil Reference 11 of 1996) [1998] TZCA 7 (9 April 1998),[ 1998] T.L.R. 14 527(CAT) to mention just a few. In Chichili’s case (supra) it was held inter-alia that:- “ We entirely agree with our learned brother, MZAVA, JA and the authorities relied on which are loud and clear that, “A court record is a serious document. It should not be lightly impeached…There is always presumption that a court record accurately represents what happened”. For reasons shortly stated hereinabove, in the absence of evidence to the contrary, I hold that CMA record shows what transpired. What I have discussed hereinabove has disposed the whole application. I will, therefore, not discuss other grounds raised by the applicant. For all what I have discussed hereinabove, I hereby nullify CMA proceedings, quash and set aside the award arising therefrom and order trial de novo before a different arbitrator. Dated in Dar es Salaam on this 12th August 2024. B. E. K. Mganga

JUDGE Judgment delivered on this 12th August 2024 in chambers in the presence of Lameck Swinney Yengayenga, the Personal represenative 15 of the Applicant and Remmy Ephraim William, Advocate for the Respondent. B. E. K. Mganga

JUDGE 16