Rugumba

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (BUKOBA SUB-REGISTRY) AT BUKOBA LABOUR REVISION NO. 4866 OF 2024 {Arising from Labour Dispute No. CMA/ KAG/78/2022/20/2023 from the Commission for Mediation and Arbitration atBukoba) RUGUMBA OSWARD JOSEPH................................................ APPLICANT VERSUS CHAMA CHA WALIMU TANZANIA........................................ RESPONDENT RULING 13th August & 13th September 2024 F.H. KIWON DE, J. Before the Commission for Mediation and Arbitration at Bukoba, Mr. Rugumba Osward Joseph filed a labour dispute claiming for breach of contract of employment between him and his employee, Chama cha Walimu Tanzania. He claimed for compensation at the tune of TZS 58,968,000/= and re-instatement without loss of remuneration. Upon conclusion of the hearing, the application was dismissed for lack of merits. It was decided that there was no contract of employment between the parties since the said contract was null and void. Thus, this culminated into no employer-employee relationship between the parties. i The applicant, therefore, could not be re-instated or being paid any remuneration. Aggrieved by the said decision, the applicant filed the present application for revision praying for the reliefs as follows: 1) This Hon. Court be pleased to revise an award of the Commission for Mediation and Arbitration at Bukoba in a complaint with Reference No. CMA/KAG/BUK/78/2022/20/2023 dated 9th day of February 2024 by Hon. G.P. Magire,Arbitrator. 2) Upon revising the CMA decision and orders thereof, this honourable court be pleased to issue an order setting aside and quashing the impugned arbitration award which has been made under an error material to the merits of dispute hence occasioning injustice and make an order for payment of fifty thousand nine hundred and sixty-eight thousand (TZS 58, 968,000/=). 3) Any other reliefs this court deems fit to grant. The respondent was duly served but defaulted to file notice of opposition and or counter affidavit. Also, the respondent did not appear to court without advancing any reason. Therefore, upon satisfaction by the court that the respondent was actually served, as per affidavit of service sworn by one Pastory Henry Kaboya, a court process server, the matter was ordered to proceed ex parte. 2 When invited to submit in support of the application, Mr. Projestus Mulokozi, learned counsel submitted that this application seeks to determine three issues; first, whether there was an employment contract between the parties, second, whether the respondent breached the said contract of employment and third, whether there was employer­ employee relationship between the parties. Regarding the first issue, the learned advocate submitted that the parties entered into a contract of employment as per exhibits Al and A2 which are letters of appointment and the employment contract respectively. But before the Commission for Mediation and Arbitration, the respondent alleged that such documents were forged on the ground that they do not bear original signature from CWT Secretary General. This led to the decision by the Commission that the appointment was void, hence, there was no contract between the parties. According to the counsel, this was illegal and occasioned injustice to the applicant because it was not the applicant who authored the appointment letter. He submitted that the applicant was a teacher who worked with Biharamulo District Council and that such appointment came from CWT offices which are in Dodoma. Apart from that, the counsel submitted that the exhibit clearly shows that the applicant received the said letter of appointment from CWT office of 3 the Secretary General, and the applicant testified so; and DW1 one Aloyce who acknowledged that the letter was approved by Regional Office and that it was from CWT Dodoma head office from one Ansila Massawe (personal secretary). He said that DW1 was aware of the said letter of appointment and the issue of invalidity of the letter of appointment is an afterthought. Regarding the issue of scanned signature as alleged by the respondent, the learned counsel submitted that this is not a reason of nullifying the appointment of the applicant and that a letter of acting Secretary General to CWT which nullified the appointment of the applicant did not follow procedure. The learned counsel further submitted that in cross-examination, DW1 recognized the said letter of appointment and if there was no such appointment, then the acting Secretary General would not have nullified the said appointment. He was of the view that if the CMA would have looked at the exhibit A6 would not come to such conclusion. The learned counsel further submitted that the respondent was required to prove that the said letter is forged since he who alleges must prove. But the respondent did not, do so. Whereas, the applicant proved the validity of the said letter by tendering exhibit Al which is the letter of 4 appointment and it was from proper authority and he believed on it, thus, he discharged his duty as per the requirement of the law. To support this point, he cited the cases of Bakar Mhando Swanga Versus Mzee Mohamed Bakar Shelukindo and Bothers, Civil Appeal No.389 of 2019 and Twazihirwa Abraham Mgema Versus James Christian Basil, Civil Appeal No.229 of 2018, the decisions of the Court of Appeal of Tanzania. Moreover, the learned counsel said the applicant fulfilled all the procedures for and after appointment and all exhibits were admitted in evidence without any objection. The learned counsel further submitted that under section 5(1) of the Law of Contract Act, Cap 345 (R. E 2002), revocation of a proposal can be done before acceptance and not otherwise. He further submitted that when the applicant submitted all documents that means the offer was duly accepted. He prayed this court to grant the application and give reliefs as prayed. Having gone through the records of the Commission for Mediation and Arbitration and the oral submissions by the learned counsel for the applicant the issue for determination is whether this application for revision is meritorious. 5 It is apparent from the records that the applicant was a government employee as a teacher, but he decided to enter into employment contract with the Tanzania Teachers' Union (TTU) famously called Chama Cha Wa/imu Tanzania (CWT), the respondent as indicated in exhibit A2. The available evidence shows that he applied for the position of CWT District Secretary and did an interview. At first, DW1, one Pasian Aloyce Siayi, said the applicant did not attend any interview, but later on, during cross- examination, specifically question 26, this witness agreed that the applicant was listed No. 178 in the list of interviewees. For that matter, the applicant attended the interview. Also, the applicant complied with all procedures required for the position including securing a permission for Sabbatical leave. This is shown in exhibit A3, a letter dated 29th September 2022. This was a requirement under the contract of employment, exhibit A2. Then the applicant was given an appointment letter, exhibit Al. In that contract, the applicant's employment was to start from 1st July 2022. The fierce contention between the parties right from the arbitration was on the validity of the appointment letter and the contract of employment (exhibits Al and A2). The defence witness (DW1) said the documents were forged and not executed by the CWT Head Quarters. The arbitrator relied on these allegations of forgery and decided that there was no 6 contract of employment, that there was no employer-employee relationship created and thus, the applicant is entitled to nothing. In law, he who alleges must prove and the standard of proof in civil cases is on the balance of probabilities. This principle has its foundation under section 110(1) of the Evidence Act, [Cap 6 R.E 2019] and was applied by the Court of Appeal in the case of Standard Chartered Bank (T) VS Samwel Nyalla Nghuni, Civil Appeal No. 45 of 2020, Court of Appeal of Tanzania at Mwanza (unreported) where it was stated that: "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, he must prove that those facts exist" The arbitrator said the burden of proof never shifts, meaning that it was the applicant who supposed to prove the validity of the appointment letter and the contract of employment before the Commission for Mediation and Arbitration. However, it is a matter of law that each case has to be determined according to its circumstances. The allegations of forgery were raised by the defence witness (DW1) in his defence. The applicant did not know about such allegations when he gave his evidence, thus, he could not explain it. His duty was to prove his claims. The respondent was 7 disputing the claims or defending himself, and so, he just raised doubts as to the validity of the said documents relied by the applicant in his claims. For that matter, the decision-making body had a duty to evaluate the evidence in its entirety to find the truth of the allegations based on the available evidence. In the present application, the applicant's appointment letter, exhibit Al dated 4th May 2022 and the contract of employment, exhibit A2 said to have entered into on 4th May 2022, though, the applicant signed it on 4th July 2022, are purported to have been signed or executed by one Deus G. Seif, the then Secretary General of CWT. In discrediting these documents, DW1 said Deus G. Seif was not in office at that time since he was facing an economic case at the Resident Magistrates' Court of Dar-es Salaam at Kisutu. But in my view, this did not stop him from carrying out his activities. This is shown by DWl's evidence. When he testified, he said the Secretary General continued with his duties. I quote part of his evidence at pagel9: "Kuanzia tarehe 4/5/2021 aliyechukua nafasi yake aliridhia aendetee kufanya majukumu mpaka shauri lake litakapoamuliwa. Kwa kipindi hicho aliendelea Kuwa ofisini." 8 This evidence indicates that this teacher, Deus G. Seif continued with his duties as Secretary General to CWT and there is no other evidence showing that he was stopped on reason of being charged with economic case. Besides that, this defence witness said Deus G. Seif was the CWT Secretary General since June 2018 until when he was convicted and sentenced to imprisonment in jail on 28th June 2022 and his office was succeeded by Japhet Maganga. Therefore, the documents executed by Deus G. Seif before ceasing to hold office could be genuine as they were executed according to his capacity. However, the signatures on the appointment letter and the contract of employment are contested on reason that they are shown to be of electronic copy and paste nature. At the arbitration, DW1 said the documents involving appointment and employment are sensitive and the normal practice is that they are hand-signed by the person with authority to issue. He said but the signatures of Deus G. Seif are not. Now, if Deus G. Seif was in office, he is expected that he would have signed those documents as usual practice of hand-signature. There is no evidence as to why he opted, if at all, to have his signatures electronically copied and pasted on those documents. This is what prompted the arbitrator to 9 believe that the signatures were not appended on the applicant's appointment letter and the contract of employment by Deus G. Seif. The counsel for the applicant argued that the appointment letter was issued by the CWT Head Quarters, it passed and was approved by the CWT Regional Secretary and so, the applicant believed on it. I concur with the arbitrator that the validity of the letter depends on whether it was actually executed by the author and signed by him. In this application, the appointment letter and the contract of employment are shown not to have been hand-signed by Deus G. Seif, instead, there are electronic copied and pasted signatures without evidence why he could not sign in normal practice. For that matter, the letter of appointing the applicant as District Secretary of the Tanzania teachers' Union (TTU) and the contract of employment were not genuine, so, they could not create employer-employee relationship. Apart from that, it was argued that the cancellation or revocation of the applicant's appointment was unprocedural. Though, it was not explained by the counsel for the applicant. So far, I have said above that there was no employment legally created, the applicant could not be terminated by following the laid down procedures. Also, even if it would be so, he was 10 still to be under probation and could not claim unlawful termination. This is why he claimed under the auspice of breach of contract of employment. Thus, the issue of unprocedural cancellation of appointment cannot arise. Consequently, the application is found without merit and it is hereby dismissed. This being a labour matter, I make no order as to cost. It is so ordered. Dated at Bukoba this 13th September 2024 F. H. kBtONDE JUDGE 13/09/2024 Court: Ruling is delivered in chamber in the presence of Mr. Peter Matete learned counsel for the applicant, the applicant and Grace Mutoka but in the absence of the respondent this 13th September 2024 and the right of appeal is explained. F. H. JUDGE 13/09/2024 ii