shidepha

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA ( CORAM: MWARIJA. 3.A.. MASHAKA. J.A. AND FELESHI. 3.Aj CIVIL APPEAL NO. 147 OF 2022 SERVICE HEALTH AND DEVELOPMENT FOR PEOPLE LIVING POSITIVELY WITH HIV/AIDS (SHIDEPHA+ SUMBAWANGA)...... ............... ............................. APPELLANT VERSUS PETER KULAS MWIMANZI .,........... ...................... ..............1st RESPONDENT IBRAHIM 3UMA MTORO...... ........ .......... ..... ..... 2nd RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania at Sumbawanga) fNkwabi, 3/1 dated the 6th day of December, 2021 in Revision No. 11 of 2020 JUDGMENT OF THE COURT 10" & 24th March, 2025 FELESHI, J.A.: The essence of this appeal is the termination of the respondents' employment contract fay their employer namely, Service Health and Development for People Living Positively with HIV/AIDS (SHIDEPHAf), (the appellant) on 30th September 2019. The brief facts on the parties' employment relationship and from which the labour dispute ensued are that: the appellant, an entity engaged in counselling, education, and HIV/AIDS testing in the Sumbawanga Region, initially in 2016 employed Peter Kulas Mwimanzi and Ibrahim Juma Mtoro (the respondents), as counsellors in a two-years contract effective from 1st October 2016 to 30th September 2018. She subsequently re-engaged the latter to another two-years contract from 1st October 2018 scheduled to expire on 30th September 2020. However, the appellant terminated the said contract prematurely on 30th September 2019 by a letter dated 4th September 2019, Which required the respondents to reapply for their positions and be re-employed subject to a successful application. Aggrieved by the termination, the respondents instituted Labour Dispute No. RK/CMA/49/2019 before the Commission for Mediation and Arbitration for the Rukwa and Katavj Zone (the CMA), alleging unfair termination. Each respondent sought compensation and other terminal benefits amounting to Tanzanian Shillings 28,760,000/=, including six months unpaid salaries. In support of their claim, they contended that their employment was validated by evidence proving their registration with the National Social Security Fund (NSSF) and the issuance of respective identity cards to that effect. The appellant denied the claims for reasons advanced by her six witnesses (DW1 to DW6) including that: the respondents were not terminated from employment as they were not employees but rather volunteers; and that, the respondents' employment contracts had lawfully expired, as they were engaged under a one-year renewable contract that ended on 30th September 2019. Upon evaluating the evidence, the CMA found that the respondents1 employment had been unfairly terminated as there was neither a valid reason for termination nor adherence to the required procedural safeguards. Consequently, it awarded the respondents terminal benefits in accordance with sections 40 (1) (c) and 44 (a) (c) (d) and (e) of the Employment and Labour Relations Act, Chapter 366 (the ELRA), Under these provisions, specifically, each respondent was awarded: one month's salary in lieu of notice Tshs. 600,000/=; six months' salary arrears Tshs. 3,600,000/-; severance pay Tshs. 560,000/=; four years accrued leave Tshs. 2,400,000/=; and, twelve months' salaries compensation Tshs. 7,200,000/= hence a total award of Tshs. 14,360,000/=for each respondent. The appellant's attempt to revise the CMA award proved futile following the decision of the High Court to dismiss her Labour Revision No. 11 of 2020 and upholding the impugned award. Still daunted, she instituted the instant appeal on three grounds. However, when the appeal was due to hearing, she abandoned the third ground of appeal and remained with two grounds which we can conveniently paraphrase as: one, that, the High Court erred in taw to uphold the decision o f the CMA resulting from improperly admitted documents; and two, that, both the High Court and the CMA lacked-jurisdiction to determine a time barred labour dispute. At the hearing of the appeal, Mr. Mathias Budodi, learned advocate appeared for the appellant, whereas the respondents appeared in person without legal representation. As both parties had not filed written submissions under rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 (the Rules), they presented their oral arguments under rule 106 (10) (b) of the Rules. Submitting in support of the appeai, Mr. Budodi argued for the first ground of appeal that the High Court erred in upholding the decision of the CMA which based on the exhibits AP-12, AP-9 and AP-1, then K-9, K-10, K- 13 and K-12 which were not tendered according to the law. To that effect he referred us to pages 124 to 146 of the record of appeal. He said, those exhibits included the contested respondent's employment contracts. In his submission, as per pages 197 and 198 of the record of appeal the CMA award which was upheld by the High Court based on those exhibits, their improper admission thus caused a grave miscarriage of justice to the parties. To buttress his argument, he cited the case of National Microfinance Bank PLG & Another v. Lello Laurent Sawe (Consolidated Civil Appeals No. 385 "A" & 339 of 2021) [2024] 7ZCA 17 (6 February 2024), TANZLII. Regarding the violated law, Mr. Budodi was emphatic that both the CMA and the High Court were enjoined to pay regard to laws applicable on document admission with a view to safeguarding the principles of natural justice. As to the 2ndground of appeal that both the High Court and the CMA lacked jurisdiction, Mr. Budodi contended that, by the respondents combining their claims of Tshs. 3,600,000/= each being six months' unpaid salaries from 4th April 2016 to September 2016 with those of unfair termination, and filing their dispute in the CMA on 18th October 2019, the entire dispute was thus rendered time barred. That is because rule 10 (1) and (2) of the Labour Institutions (Mediation and Arbitration) Rules, G.N. No. 64 of 2007 (G.N. No. 64 of 2007) provides for thirty days time limit to institute labour dispute on unfair termination and sixty days on other disputes respectively. Further, Mr. Budodi contended that failure by the respondents to remedy the lateness of their claims on unpaid six months salaries through condonation proceedings in the CMA under rule 11 of G.N. No. 64 of 2007 had the effect of vitiating the CMA award and the decision of the High Court in the combined labour dispute for want of jurisdiction. Therefore, he implored the Court to allow his appeal. In reply, the 2nd respondent submitted that the appellant's complaints before the Court were new as were neither raised before the CMA nor to the High Court. He resisted the 1st ground arguing that the impugned exhibits were formally received in the CMA without objection from the parties, that is why the appellant's exhibits were marked as K-l to K-10, while theirs were marked as AP-1 to AP-13. Besides, he added, they were legally admitted as they were certified save for the employment contracts whose original copies were in the hands of the appellant On the 2nd ground of appeal, the 2ndrespondent briefly submitted that their claims for six months unpaid salaries were not disputed, that is why the respondent did not raise any objection before the CMA that they were time-barred per the cited rule. On his part, the 1st respondent concurred with the 2nd respondent's submissions and implored the Court to dismiss the appellant's appeal. Mr. Budodi had nothing to rejoin. We have considered the grounds of appeal the submissions by the parties, the law and the record of appeal. Regarding the 1st ground of appeal, the respondents vehemently resisted Mr. Budodi's submission arguing that it is not true that the impugned exhibits K-l to K-10 and AP-1 to AP-13 were improperly admitted. They maintained that the exhibits were properly admitted, and without objection from the appellant, thus, the CMA and the High Court properly acted upon them. At this juncture, the Court ordinarily ought to begin examining the appellant's ground of appeal in the light of the violated law as it is alleged that the impugned exhibits were improperly admitted. Very unfortunately, as indicated above, Mr. Budodi omnibus submission did not cite any. He just asserted that ’'both the CMA and the High Court were enjoined to pay regard to taws applicable on document admission with a view to safeguarding the principles o f natural justice. "We think however, his submission and cited case law above informed us on the branch of law from which his inspiration was drawn. In National Microfinance Bank PLC & Another v. Lello Laurent Sawe (supra), the case cited to us by Mr. Budodi, the appellants' claims were founded on indemnity for properties destroyed by fire and as the trial court had acted on a document which was not admitted in evidence, we had the following to say on the matter; "At least two things come out clearly from the above... First and foremost, the learned trial judge acted on the contents o f a document not tendered and admitted as exhibit, the annexure to the defence. Trite law is that, a document which is not admitted in evidence does not form part o f the evidence and cannot be acted on to determine the rights o f the parties even if it is in the record or annexed to the pleadings" The Court had addressed a similar situation in Chantal Tito Mziray & Another v. Ritha John Makala & Another, Civil Appeal No. 59 of 2018 [2020] TZCA 1930 (31 December 2020), TANZLII. In that appeal, we found the 'Will', which, though attached to the caveat and not tendered in evidence, was relied upon to reach a decision. We thus had the following: "...We are satisfied that the "purported Will" which was extensively relied in the impugnedjudgment o f the trial court to reach the conclusion that it is invalid was neither tendered nor admittedin e vidence at the trial. Therefore, though it is not disputed that the Will was attached to the caveat in support o f the caveat, the trial court wrongly, with respect, relied on it to reach the conclusion concerning dispute between the parties. " With all due respect to Mr. Budodi, we think, and we are settled in our minds that, our position obtained in the cases above, cannot apply in the instant case as doing so will offend the principle of "specialibus generalia non derogant" That rule of statutory interpretation provides that general laws do not prevail over special laws. It is common knowledge that labour disputes in this country are governed by specific laws and regulations which require arbitration proceedings to be conducted with minimal legal formalities distinguishing them from other adjudicatory processes. The purpose is to afford the parties involved to resolve their disputes fairly, efficiently, and with minimal legal complexity. Section 88 (4) of the ELRA grants arbitrators the discretion to conduct arbitration as they see fit, provided they adhere to three key principles: resolving disputes, doing so expeditiously, and ensuring fairness to all parties. Section 88(4) provides that: "(4) The arbitrator- (a) may conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the dispute fairly and quickly; (b) shall deal with the substantial merits o f the dispute with the minimum o f legal formalities" Also, Rule 19 of Labour Institutions (Mediation and Arbitration) Guidelines, 2007 [GN. No. 67 of 2007] governs the conduct of the proceedings in the CMA. Rule 19(1) provides: "An arbitrator has the power to determine how the arbitration should be conducted. " The Court had in several occasions underlined that the CMA proceedings are relaxed from normal civil proceedings. See- for instance Security Group T, Limited v. Steven Gerson Kizinga (Consolidated Appeal No. 386 of 2020 & 50 of 2021) [2024] T7CA107 (23 February 2024), TANZLII and Patrick Muga v. National Bank of Commerce (NBC Ltd) (Civit Appeal No. 459 of 2021) [2024] TZCA 1297 (23 December 2024), TANZLII. In the former case the Court underscored that: "The arbitrators in conducting the proceedings must be guided with minimum o f legal formalities which suggests that arbitration proceedings are not adjudicatory proceedings. Thus, the arbitrator has discretion to elect among others an inquisitorial or adversarial approach in conducting arbitration proceedings. Such a choice should be dictated by the nature o f the dispute, the parties to the dispute, as well as other factors that might be relevant in order to achieve the goal o f dealing with the substantial merits o f the dispute fairly, quickly and with minimum legal formalities, ” In the instant case, after going through the record of appeal, we are inclined to agree with the respondents that the impugned exhibits were admitted by the CMA without objection. It is plainly clear to us that the CMA per pages 127, 129, 131,132, 134,136, 137 and 138 of the record of appeal received the appellant's evidence from her witnesses DW2, DW3, DW4, DW5 who made references to exhibits K-l, K-2, K-3 to K-13 and were cross- examined by the respondents about them. Very specific is the evidence of DW5 at page 137 of the record of appeal where his prayer to tender exhibits K -ll, K-12 and K-13 for admission was that: "...katika utekelezaji ninakielelezo cha tangazo K - ll tofauti na tangazo huwa pia tunawaandikia barua ambazo nitaomba ziwe Ushahidi (K-12. K-13) waialamikaji waliomba kazi kwa kutuandikia barua za maombi (K-14, K-15) . . . " [Emphasis supplied] Equally, at pages 147, 148 to 153 of the record of appeal, the respondents (CW-1 and CW-2) gave evidence referring to exhibits AP-3 to AP-13 and were also intensively cross-examined by the appellant's side. In view of the above, we therefore entertain no doubt in our mind that both the appellant and the respondents were aware of their respective exhibits, and it will be very unfair to go by Mr. Budodi's plea that grave injustice was occasioned to parties. We thus find the appellant's complaint unfounded. This is because there is no evidence suggesting that the procedure adopted by both the CMA and the High Court on acting on the impugned exhibits contravened the applicable law discussed above. Therefore, we hereby dismiss the 1st ground of appeal for want of merit. Concerning the 2nd ground of appeal, this will not detain us as both parties agree with the limitation period provided by rule 10 (1) and (2) of G.N. No. 64 of 2007. Rule 10 (1) and (2) of G.N. No. 64 of 2007 which provides: "10 (1) Disputes about the fairness o f an employee's termination o f employment must be referred to the ii Commission within thirty days from the date o f termination or the date that the employer made a final decision to terminate or uphold the decision to terminate, (2) AH other disputes must be referred to the Commission within sixty days from the date when the dispute arised." The dilemma facing the respondents on the 2ndground, as we deduced it from their submission, is not what the law above provides. It is rather on failure by the appellant to seek review or object their claims of six months unpaid salaries when they filed the same with the CMA on 18th October 2017 while combining them with other claims on unfair employment termination. There is no dispute whatsoever that, the respondents combined their two distinct claims: One, unfair termination that occurred on 30tf1 September 2019; and two, unpaid salary arrears for the period from April 2016 to September 2016. It is thus glaringly clear to us that the second cluster of claims in the CMA Form No. 1 and the respondents'joint opening statement as shown at pages 4, 11, 20 to 22 of the record of appeal which were combined in one labour dispute No. RK/CMA/49/2019 were contrary to rule 10 (2) of the G.N. 64 of 2007. The clarification they made in paragraph 5 in their opening statement at page 22 reads: "Katika maombi yetu tumeomba kulipwa jumia ya shHingi 28,760,000 kila mmoja ikiwa ni malipo ya 12 fidia ya kuondoiewa kazini isivyo halali, malipo ya kiinua mgongo, malipo mbadala wa taarifa ya ukomo wa ajira, malipo ya Hkizo ambazo hatukwenda wafa kulipwa kwa miaka minne na malipo ya mishahara ambayo hatukulipwa kwa miezi sita ya kwanza ya ajira zetu. Madai haya yote yapo kisheria na waia hatukkuweka madai mengine ambayotunadhani mlalamikiwa anatakiwa kutuiipa" [ emphasis added] We thus agree with Mr. Budodi that both the CMA and the High Court ought not to have entertained the respondents' prayer on the reliefs of Tshs. 3,600,000/= for each in respect of unpaid salaries which in terms of rule 10(2) of the G.N. 64 of 2007 was time barred. Otherwise, as correctly, in our view, suggested by Mr. Budodi, the respondents had a door open for them to engage condonation proceedings to cure the anomaly obtained in their time barred claims. However, per rule 10 (1) of the G.N. NO. 64 of 2007 we are satisfied that by filing the labour dispute on 18th October 2019 the claims on unfair termination were well within thirty days considering that the termination had occurred on 30th September, 2019. In the circumstances, we partly allow the appellant's appeal to the extent of the claim of unpaid salaries for the first six months, Tshs. 3,600,000/= for each respondent that was time barred. Consequently, we quash and set aside the order of the CMA and the High Court ordering the appellant to pay Tsh. 3,600,000/= to each respondent. On the other hand, we dismiss the appeal to the extent stated above for the respondents to be paid their reliefs falling under unfair termination of their employment contracts. We make no order as to costs. DATED at SUMBAWANGA this 22nd day of March, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 24th day of March, 2025 in presence of Ms. Zamda Yusuph Dachi, holding brief of Mr. Mathias Budodi, learned advocate for the appellant and Respondents in person - unrepresented is hereby certified as a true copy of the original.