CIVIL APPEAL NO 609 OF 2023 RICHARD GEORGE WEREMA VS TANZANIA ELECTRIC SUPPLY COMPANY LIMITED TANESCO

IN THE COURT OF APPEAL OF TANZANIA AT TABORA ( CORAM: LILA. J.A.. FIKIRINI. J.A. And KENTE. J.A.^ CIVIL APPEAL NO 609 OF 2023 RICHARD GEORGE WEREMA........ .............. .....................APPELLANT VERSUS TANZANIA ELECTRIC SUPPLY COMPANY LIMITED (TANESCO)..................... .......................................RESPONDENT (Appeal from the Ruling of the High Court of Tanzania at Tabora) (BahatLL) dated the 21st day of April, 2023 in Labour Revision No. 5 of 2021 JUDGMENT OF THE COURT I9 bAugust & 11th September, 2024 KENTE. J.A.: The appellant herein Richard George Werema, was employed as an Electrical Technician by the respondent Tanzania Electricity Supplies Company Limited (hereinafter referred to as Tanesco or the respondent) in January, 2012. His duty station was at Kinondoni in Dar es Salaam Region. After sometime and, apparently, upon good and satisfactory performance of his duties, he was elevated to the position of a Main Supervisor. On 25th October, 2012, the appellant was transferred to Tabora where he was however assigned the duties of a Plan Technician. Upon inquiring about the changes of his position, he was told that the position of a Main Supervisor was non-existent at Tabora Station and that, his transfer letter had inadvertently referred to a non-existent position. Not content with his employer's answer and taking into account the long outstanding conducts against him, the appellant referred his grievances to the Commission for Mediation and Arbitration (the CMA) at Tabora. He urged the CMA to issue an order compelling the respondent to assign him duties in line with his title as a Main Supervisor, and to be paid monetary compensation to the tune of TZS 95,000,000.00 for allegedly being harassed, discriminated and subjected to difficult conditions all of which he claimed, were caused by the respondent. However, while the appellant's claim was still pending hearing by the CMA, his employment contract was terminated by the respondent thereby triggering another labour dispute. On being informed by the appellant that the respondent had terminated his employment contract, the Hon. Arbitrator adjourned the hearing of the dispute before the CMA while promising that the CMA would give its guidance on how the two grievances could be dealt with. Even though, after several adjournments, and later on, after hearing the parties on the objection raised by the respondent, the CMA went on hearing and determining the appellant's claim as originally presented. Having considered the evidence from both sides, the CMA was unable to uphold the appellants' claims which it went on dismissing for want of merit. 2 Embittered with the CMA's decision, the appellant applied for revision of the CMA award to the High Court advancing three grounds which essentially questioned the finding by the CMA that the appellant had not been able to substantiate his claims. In particular, the High Court held that, the evidence led in support of the appellant's claim had fallen short of proving that he was harassed or discriminated by the respondent. With regard to the appellant's complaint that the respondent had denied him some benefits such as incentive bonuses, cheap electricity and on-job training opportunities, the learned High Court Judge took the view, that the measures meted out on the appellant by his employer were correct following his refusal to sign the job description signifying acceptance of the conditions of his employment contract after he was transferred from Kinondon to Tabora. We will not go further into the details of the decision of the first appellate court because the said details are not very much relevant in view of the position the appellant has taken in this appeal. Suffice it to say that, it is against the above decision of the High Court that the appellant is aggrieved, hence this appeal. Initially, the appellant had advanced four grounds in support of this appeal. Whereas, the first ground was that the learned Judge of the first appellate court erred in law when she failed to find that the appellant had successfully proved his case before the CMA, the second ground was that, 3 the decision by the High Court Judge was one-sided as it was wholly based on the respondent's evidence. The third ground faulted the first appellate court for failure to analyse the evidence adduced by both parties. The last ground was that, the learned Judge erred in law in upholding the decision of the CMA which was based on illegality. After we drew the attention of Mr. Samwel Ndanga learned counsel appearing for the appellant to the provisions of section 57 of the Labour Institutions Act, Chapter 300 of the Revised Laws which stipulates that, a party to the proceedings in the Labour Court may appeal against the decision of that court to the Court of Appeal of Tanzania on a point of law only, and having insisted that in view of the above provisions of the law, this Court will normally not re-evaluate evidence in the manner as the first appellate court is required to do, the learned counsel quickly realized that the first, second and third grounds of appeal were wrongly preferred as they were not justiciable before this Court. He then successfully prayed to abandon them. Submitting in support of the appellant's lone ground of appeal, Mr. Ndanga attacked the High Court for upholding the decision of the CMA which according to him, was fraught with illegality. The gist of the learned counsel's argument was that, after the CMA was informed by the appellant that his contract of service had been terminated, the CMA ought to have ordered for amendment of Form No. 1 so as to incorporate the appellant's claims for unfair termination of his employment contract. Without elaborating how the two causes of action were related, Mr. Ndanga contended that, the failure by the CMA to order for amendment of the pleadings in Form No. 1 after the appellant was terminated from service so as to enable him incorporate the claim for unfair termination, was the cause of the illegality in the final decision of the CMA. In his response, Mr. Lameck Merumba, a learned Senior State Attorney who appeared along with Mr. Steven Urassa and Ms. Kumbukeni Kondo learned State Attorneys to represent the respondent, supported the decision by the CMA insisting that there was nothing illegal in it. The learned Senior State Attorney's contention was that, the two disputes between the appellant and the respondent were distinct as they were based on two different causes of action, that is, discrimination and harassment (in the present dispute) and unfair termination (in the second dispute). Bearing in mind that in Form No. 1 the appellant had pleaded discrimination and not unfair termination and that, he was required to lead evidence which would prove discrimination and harassment the claims which he failed to substantiate, the learned Senior State Attorney was emphatic that, it was not necessary for the CMA to give any guidance to the appellant after he 5 was terminated from service and that, the omission by CMA if any, to give him guidance, did not render its ultimate decision illegal. In a brief rejoinder, Mr. Ndanga submitted that, failure by the CMA to give guidance to the appellant on the course to follow after termination of his employment contract, had a negative impact on his case as he did not know whether he was going to prove discrimination and harassment by his employer or unfair termination. We have considered the arguments by the two counsel each in support of his respective stance. With due respect to Mr. Ndanga, we are disinclined to agree with him both with regard to his argument and the statement of facts. On the facts of this case, the learned Judge cannot be faulted for sustaining the decision of the CMA. As it will be noted from the record of appeal, immediately after termination of the appellant's contract of employment the appellant went ahead and lodged another labour dispute (No. 112/2015) before the same Commission accusing the respondent for unfair termination. The record shows that following this development and while the two disputes were still pending hearing, the respondent's counsel on 8th December, 2014 raised an objection to the effect that, Labour Application No. CMA/TAB/DISP/46/2014 which related to the daim for discrimination and 6 harassment was violative of section 8 of the Civil Procedure Code, Chapter 33 of the Revised Laws, which prohibits, the pursuit or continuation of similar suits involving the same parties and the same claims. The basis of the respondent's objection was that, the remedies being sought by the appellant were only available to a claimant who is still in employment and that, after termination of the appellant's contract of service, his claims were not tenable for having been overtaken by events. To that end, the respondent's counsel urged the CMA to either dismiss the appellant's claims or stay the proceedings in CMA/TAB/DISP/46/2014 so as to pave the way for continuation and conclusion of the proceedings in the application challenging the termination of the appellant's contract of service. Submitting in rebuttal, the appellant was strongly opposed to the position taken by the respondent. He argued that the two matters before the CMA were distinct and that the respondent's position would have been with basis if the claim for unfair termination was the first one to be instituted in the CMA. In its well informed decision, the CMA determined that the dispute before it was not sub-judice as the conditions stipulated in section 8 of the Civil Procedure Code were not cumulatively in place to sustain the objection 7 raised by the respondent's counsel. In conning to that conclusion, the learned Arbitrator considered that the two disputes were based on two different causes of action and that the reliefs sought by the appellant therein were quite distinct. Regarding the argument by the respondent's counsel that the claim by the appellant to be assigned duties commensurate with his position as a Main Supervisor had been overtaken by events following the termination of his employment contract, the CMA maintained that, so long as there was an allegation of harassment and discrimination the wrongs for which the appellant prayed for monetary compensation, that claim could still be pursued to its finality. The basis upon which the above decision was reached by the CMA was that, the appellant's claim for compensation: ”. . . nihoja ambayo haijaathiriwa kwa namna yoyote na kitendo cha mla/amikaji kuachishwa kazi; kwani ufipaji wa fidia hautegemei uwepo wa miaiamikaji kazini Hi kuweza kulipwa kama ikibainika ni kweii aiifanyiwa vitendo hivyo. Tume inaweza kutoa nafuu hiyo/ biia kujaii kutokuwepo kwa miaiamikaji kazini" Put in simple terms, the CMA reasoned that, termination of the appellant's contract of employment could not and did not affect his claim for compensation upon allegations of harassment and discrimination by the respondent at his place of work. It is worthwhile to mention here that, the appellant was, at the time, pleased by the foregoing position which was taken by the CMA. That being the case, it is imperative then to ask at this point, why and when did the appellant get the second thought as to contend that, the upshot of the ruling by the CMA to deal with the two matters separately as he had himself requested, resulted into the illegality of the final decision in this matter. In the view that we have taken, one need not deploy a lot of legal savvy to realise that the alleged illegality of the CMA's decision occurred as an afterthought after the CMA finally viewed the appellant's claims with disfavour and decided against him, pure and simple. We must emphasize here that, the appellant is the one who had fought a successful legal battle to have the two disputes heard and determined separately and therefore, there are neither legal nor rational basis for his present complaints. The net effect of our discussion is that, we reject the appellant's complaint in this appeal because, in the first place, the CMA had given its guidance on the way forward after termination of the appellant's employment contract by the respondent and, in the second place, the CMA had concurred with him and subsequently upheld his position while rejecting the respondent's objection. To be specific then, the appellant is legally estopped from complaining and challenging the decision which he had himself successfully prayed for before the CMA. Upon the above discussion, we find the appeal to have no merit and we accordingly dismiss it. Since this is a labour dispute, we make no order as to costs. DATED at DAR ES SALAAM, the 10th day of September, 2024 S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL The Judgment delivered this 11th day of September, 2024 in the presence of Appellant in person vide video link from High Court Tabora and Mr. Samuel Mahuma, learned Senior State Attorney for the Respondent is hereby certified as a true copy of the original. 10