tanzania ports authority vs edrick katano 2020 tzhcld 23 30 september 2020

IN THE HIGH COURT OF TANZANIA LABOUR DIVISION AT PAR ES SALAAM LABOUR REVISION NO. 670 OF 2019 BETWEEN TANZANIA PORTS AUTHORITY.............................. APPLICANT VERSUS EDRICK KATANO............................................... RESPONDENT JUDGEMENT Date of Last Order: 22/07/2020 Date of Judgement: 30/09/2020 Aboud, J. The Applicant filed the present application seeking revision of the ruling of the Commission for Mediation and Arbitration (herein CMA) in a decision of condonation by Hon. Mkombozi, Z.B, Mediator and the subsequent award which was delivered on 13/08/2018 in Labour Dispute No. CMA/DSM/TEM/823/2016 by Hon. U. N. Mpulla, Arbitrator. The application was made under the provisions of Sections 91 (1) (a) (b) & 91 (2) (a) (b) and 94 (1) (b) (i) of the Employment and Labour Relations Act [CAP 366 R.E 2019] (herein i the Act) and Rules 24 (1), 24 (2) (a) (b) (c) (d) (e) (f), 24 (3) (a) (b) (c) (d) and 28 (1) (a) (b) (c) (d) (e) of the Labour Court Rules, GN No. 106 of 2007 (herein the Labour Court Rules). The affidavit of Mr. Kulwa Mumbuli Sukari, applicant's Principle Officer supported the application. The respondent bitterly challenged the application through the counter affidavit of his Learned Counsel, Isaac Nassor Tasinga. The applicant moved the Court to determine the following legal issues that:- (i) The Hon. Arbitrator (Mkombozi) erred in law for holding that the principles governing condonation applications as established by Courts in Tanzania are confined to termination cases only and not in other labour disputes. (ii) The Hon. Arbitrator (Mkombozi) erred in law for holding that the internal grievance procedure, as a ground for delay to institute a complaint, is equally applicable to persons who were not employees at the date the dispute arose. (iii) The Hon. Arbitrator (Mkombozi) erred in law and fact for holding that there were sufficient grounds for granting the application for condonation. 2 (iv) The Hon. Arbitrator (Mkombozi) erred in law and fact in holding that delay in bringing the application was for eight (8) days while the delay was for more than 1000 days as the dispute occurred in 2008. (v) The Honourable Arbitrator (Mpulla) erred in law and fact for admitting in evidence inadmissible documents. (vi) The Honourable Arbitrator (Mpulla) erred in law by awarding general damages in the absence of specific damages and having proved that there were no arrears due to the complainant. (vii) The Honourable Arbitrator (Mpulla) erred in law for basing his decision on new issues which had not been framed prior to the hearing of the dispute. The background of the dispute can be briefly summarised as follows. The respondent was employed by the applicant as a Mechanical equipment Operator I at Dar es salaam Port in February, 1989. In 1993 he was transferred to the applicant's Headquarter to perfume duties as a Staff Car Driver. The transfer led to erroneous underpayment to the respondent as he started being paid salary at 3 the scale of Staff Car Driver which was less than that of a Mechanical equipment Operator I. Having learned the erroneous underpayment the respondent wrote number of letters to notify the applicant on such error. The respondent's effort to notify the applicant bears fruit on 2008 where he was paid the outstanding arrears. In the same year 2008 the respondent was repositioned to his position of Mechanical equipment Operator I. He kept on working until 2013 when he resigned from his employment on medical reasons. In 2015 the respondent lodged a dispute at the CMA on the ground that the payment for the arrears was made without due consideration to the time value for money and hence he demanded for recalculation and payment of monies due to him. The CMA allowed respondent's application for condonation and proceeded to determine the matter on merit. In conclusion the respondent was awarded travel allowances amounting to Tshs. 710,000/= and general damages of Tshs. 80,000,000/=. Aggrieved by the CMA's award the applicant filed the present application. 4 Parties argued the application by way of written submission. At the hearing the applicant was represented by his Principal Legal Officers Mr. Kulwa Mumbuli Sukari and Mr. Shija Charles while Mr. Selemani M. Matauka and Mr. George K. Mwiga, Learned Counsels represented the respondent. Arguing the application, both parties spent much time submitting on the first to fourth issues as raised by the applicant which relates to the allowed application for condonation at the CMA. On these issues I wish to state that they will be consolidated in this judgement and, from the outset let me say that I have noted and considered both parties submissions and finds no relevance to restate their submissions. It is undisputed fact that the complaint at the CMA was filed together with an application for condonation, whereby upon sufficient reasons adduced thereof the Arbitrator allowed the application for condonation on 23/10/2017. It is observed from the CMA record that the decision for condonation was delivered and recorded accordingly. Thus, there was a final determination regarding application for condonation. Therefore it is my view that, the applicant being aggrieved by the condonation allowed by the CMA he ought to have filed revision 5 against that decision within six weeks from the date of the decision as is provided under section 91 (1) (a) of the Act. The rationale behind my conclusion on this is that, I am treating condonation application as separable application like any application for extension of time in court. The final decision of such application warranted the aggrieved party to file revision in this court, which is the same as that would have been for a party who is dissatisfied with this Court ruling on extension of time to knock the doors of the Court of Appeal for the remedial purposes. Therefore, on the basis of the above discussion I would say that the applicant wrongly waited until the final determination of the main complaint at the CMA to come to this Court with ground of revision, that he was dissatisfied with the condonation decision as discussed above. This application was filed on 15/08/2019, almost two years from the date of the impugned decision of condonation. Under such situation the Court cannot proceed to determine the same because it is hopelessly time barred. The law is very clear that he was supposed to come to this court with application for revision of the Arbitrator's ruling within the time prescribed under section 91 (1) (a) the Act. I 6 therefore find grounds one (i) to four (iv) have no legs to stand at this stage in court. On the basis of the above I proceed with the submission on the other issues of this application. As to the fifth issue on record the applicant's Principal Legal Officers submitted that, during hearing of the case the respondent produced copies of documents without following procedures laid down in section 67 and 68 of the Evidence Act. They stated that the applicant objected those documents, however, the Arbitrator admitted the copies and relied on the same in his decision on the reason that they are secondary evidence. The Legal Officers argued that, the documents in question are not secondary evidence as considered by the Arbitrator. Regarding the sixth issue the Legal Officers submitted that, the Hon. Arbitrator committed serious irregularities and non-compliance of the law by awarding general damages while there was no any evidence to prove that he suffered damages. They stated that, the reasons which moved Hon. Mpulla to award general damages of Tshs. 80,000,000/= were because respondent suffered 7 psychologically for being demoted while demotion was not an issue in this case. The applicant representative contended that if demotion was an issue it should have been raised in 2008 when the respondent first complained of underpayment, but not to bring it in 2016 claiming for an act committed in the past eight years. The Legal Officers for the applicant argued that, there is no explanation as to why and how Hon. Arbitrator arrived at that amount. To strengthen their submission they cited the case of Tanzania Breweries Limited vs. Nancy Morenje, Lab Div. DSM. Rev. No. 182 of 2015. As to the seventh legal for the revision, that the Arbitrator erred in law for basing his decision on new issues which had not been framed prior to the hearing of the dispute, applicant's representative submitted that, when the parties appeared for framing issues the issue of general damages was not raised and recorded. They stated that the Arbitrator suo motto departed from the issues raised and decided the issue of general damages, which deprived both parties their right to be heard. To buttress their argument they cited a chain of cases including the Court of Appeal case of Anthony Ngoo and 8 Davis Anthony Ngoo vs. Kitinda Kimaro, Civ. Appl. No. 25 of 2014. They therefore urged the Court to allow the application. Responding to the application the learned counsel's for the respondent submitted that, the award of general damages is the discretionary power of the Court and it is always awarded independently of other forms of relief. They stated that general damages cannot be quantified nor proved in monetary loss but rather is a way of compensating the victim in monetary terms for emotional or psychological torture inflicted by the conduct of the counter party. The Learned Counsels went on to argue that, the respondent was demoted for 15 years and throughout he has been claiming for the general damages without success when he was taken back to the position he deserved. He stated that, the respondent was returned back to his position he was before without taking into consideration the suffering, loss of opportunities, economic backwardness and other difficulty situation he had endured for the entire period of 15 years. In his view the award of general damages was justifiable. On the issue that the Arbitrator departed from the issues raised by the parties the Learned Counsel submitted that, general damages 9 is a form of relief and at the CMA they agreed the last issue was the parties relief therefore there is no any new issue raised by the Arbitrator as exaggerated by the applicant. Regarding the issue of admitting and relying on inadmissible evidence the Learned Counsel submitted that, the Arbitrator admitted the copies with caution and he never relied on them in his entire decision. He added that at this revision stage the applicant is stopped from questioning those documents as were admitted during the Arbitration proceeding. The Learned Counsel strongly submitted that there are no any irregularities committed by the CMA in awarding the respondent Tshs. 80,000,000/=. He therefore prayed for the application to be dismissed. In rejoinder the Legal Officers submitted that, from the narration of the historical background of the matter in the respondents submission they uncover grave irregularities flaunting the proceedings of the CMA in this matter. They stated that it was not proper for the CMA to admit the respondent's Labour dispute after his previous dispute was dismissed for being time barred. They argued that the proper remedy after the application being dismissed was to file an application for revision in the Labour Court. 10 As to the merit of the application the Legal Officers reiterated their submission in chief. Having gone through the submission by both parties it is my considered view that the issues for determination before the court are, whether the Arbitrator was right to admit the photocopied documents as evidence, whether the Arbitrator raised the issue of general damages suo motto and lastly is whether the Arbitrator properly awarded the respondent the general damages. On the first issue as of whether the Arbitrator was right to admit the photocopied documents as evidence. The applicant argued that the Arbitrator wrongly admitted the copies tendered by the respondent. But the Court noted that the Arbitrator admitted the said copies on the ground that they are secondary evidence. Admission of secondary evidence is provided under section 65 of the Evidence Act, [CAP 6 RE 2019] which is to the effect that:- "Section 65. Secondary evidence includes- (a) certified copies in accordance with the provisions of this Act; (b) copies made from the original by mechanical process which in themselves ensure the accuracy of the copy and copies compared with such copies; (c) copies made from or compared with the original; (d) counterparts of documents as against the parties who did not execute them; (e) oral accounts of the contents of a document given by some person who has himself seen it". The documents challenged by the applicant which were received are payment receipts and medical documents. On the issue of payment receipts I consider that the original documents were in the hands of the applicant because he is the one who effected such payment. Therefore, I agree with the Arbitrator's reasoning that the CMA as a quasi judicial body should not be bound strictly by the rules of procedures as provided under section 88 (4) (a) (b) of the Act which provides that, I quote:- "88 (4) (a) -The arbitrator:- (a) May conduct the arbitration in a manner that the arbitrator considers appropriate 12 in order to determine the dispute fairly and quickly; (b) Shall deal with the substantial merits of the dispute with the minimum of legal formalities" So long as the applicant was afforded an opportunity to examine the authenticity of the relevant documents their admission is not fatal. Furthermore the Arbitrator did not solely depend on those documents as reflected in the award that based on the evidence adduced by both parties. On the second issue that whether the Arbitrator raised the issue of general damages suo motto, it is the applicant contention that at the CMA they did not raise the issue of general damages as decided by the Arbitrator. He stated that, such issue was raised by the Arbitrator and decided upon without affording the parties the right to be heard. I have careful examined the CMA records on the issues raised by the parties and observed that in the proceedings they are 13 reflected as follows:- (i) "Endapo kuna malimbikizo yoyote ya mishahara na posho mbalimbali ambazo mfanyakazi hakulipwa mpaka anaacha kazi. (ii) Malimbikizo hayo ni kiasi gani? (iii) Endapo anastahili malimbikizo hayo? (iv) Nafuu za pande zote mbili. The same were translated in the Arbitrator's award as follows:- (i) Whether or not there is any unpaid salary arrears and unpaid allowances until the complainant resigned. (ii) Should the answer in 1 above be affirmative, how much was he entitled? (iii) Whether or not the complainant was/is entitled to such claims. (iv) To what relief are the parties entitled." From the issues quoted above, it is crystal clear that the issue of general damages was not raised by the parties. However, the record reveals that in the CMA Fl, among the respondent's prayer was to be paid damages but the respondent did not specify if it was general or specific damages. Under such circumstances I am inclined 14 to join hands with the applicant that the issue of general damage was raised suo motto by the Arbitrator. Therefore, I respectfully agree with the applicant's representatives that the parties were deprived the right to be heard on such issue. It is the legal norm that right to be heard is of paramount importance in the administration of justice, so failure to do that infringes one's constituted right. This is also the position in the case of of Mbeya - Rukwa Auto parts and Transport Ltd. vs. Jestina Mwakyoma [2003] TLR no. 251, it was held that:- "In this country natural justice is not merely a principle of common law; it has become a fundamental constitutional right. Article 13 (6) (a) includes the right to be heard amongst the attributes of the equality before the law, and declares in part:- (a) wakati haki na wajibu wa mtu yeyote vinahitaji kufanyiwa uamuzi na Mahakama au chombo kinginecho kinachohusika, basi mtu huyo atakuwa na haki ya kupewa fursa ya kusikilizwa kwa ukamilifu". 15 Also, in case of Abbas Sherally & another vs. Abdul S.H.M. Fazalboy, Civil Application No. 33 of 2002, the Court held that: - "The right of a party to be heard before adverse action or decision is taken against such a party has been stated and emphasized by the courts in numerous decisions. That right is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because the violation is considered to be a breach of natural justice. It has long been settled that a decision affecting the individuals rights which is arrived at by a procedure which offended against principles of natural justice, is outside jurisdiction of decision-making authority." Therefore the Court is of the view that Arbitrator was duty bound to hear and finally determine the issues raised by the parties 16 as were reflected in the CMA proceedings and well discussed herein above. Regarding the issue of whether the Arbitrator properly awarded the respondent general damages. Black's law Dictionary Abridged (Sixth Edition) to mean:- "Damages that the law presumes follow from the type of wrong complained of. General damages do not need to be specifically claimed or proved to have been sustained." The principle in awarding general damages was emphasized in the case of Tanzania Breweries Limited vs. Nancy Morenjez Lab. Div. DSM. Rev. No. 182 of 2015 where it was held that:- "However it is the rule of law that for general damages to be granted they must be certain, that there must be clear evidence of such injured feelings." In the application at hand the Arbitrator was of the view that the respondent is entitled to general damages due to the sufferings caused by the employer for 15 good years, that is from 1993 when 17 he was transferred from his working station as a Mechanical Equipment Operator I to the Headquarters where he was assigned to work as a driver up to 2008. The Arbitrator held that even if the respondent was refunded the actual difference of his salary or the arrears, the 15 years demotion if sensibly looked at by any fair decision maker must be compensated. In law, the position is very clear that before a person can get any damages he must prove that he had suffered an injury. In this application the respondent alleged that the demotion stressed him which resulted to his critical health problem when he eventually resigned from his employment. According to the documents tendered by the respondent it is revealed that the respondent had been on regular treatment since 2003. From that analysis it is apparent that if the respondent's health problem resulted from demotion then he should have claimed for damages in that particular time but not to sleep on his right and waited until he resigned in 2013. It has to be noted that in labour matters each claim of right is governed by time frame, so when someone fails to claim such right within the prescribed time, he would be considered to have waived such right. And to allow any person to come forward with a claim that he slept 18 over it until is out of time to be remedied, will be against the spirit of our labour laws which is focused on industrial harmonisation and increasing productivity at the working place. Therefore, I do not agree with the Arbitrator's award that the respondent is entitled to general damages to the tune of Tshs. 80,000,000/=. In is my view the fact that, the respondent was compensated his salary arrears which were erroneously deducted from his salary, payment of such arrears means that he was restored to his previous position of Mechanical Equipment Operator I. In other words the respondent was compensated his lost dues in 2008 when was restored to his position of Mechanical Equipment Operator I where he continued to work until 2013 when he resigned. Furthermore I find the respondent's claim of general damages as an afterthought because the record reveals that, he never raised that issue until when he resigned as a Mechanical Equipment Operator I. Under such circumstances it is my view that, if the respondent had a claim of general damages against his employer he should have levied such claim while he was still in his employment but not to wait until he resigned and started to claim for an act which was done 8 years ago. In doing so the respondent would have 19 enabled the employer to remedy the situation before his resignation as rightly submitted by the applicant's Legal Officers. I would have agreed with the Arbitrator's finding on the award of general damages if the claim in question was raised by the respondent soon after the erroneous demotion that is the period between 1993 and 2008. However the record of this case revealed the contrary because his claim was lodged at the CMA in 2015. Therefore, it is my view that the respondent is not entitled to general damages as awarded by the Arbitrator. In the result I find the present application has merit to the extent that the Arbitrator's award of general damages to the respondent is hereby revised and set aside. I also find no need to intervene with the award of travel allowances of Tshs. 710,000/= to the respondent as the applicant did not object the same. Thus, the applicant is ordered to pay the respondent the arrears of travel and substance allowances in Tanzania Shillings and to rate of current market value of the CMA award of Tshs. 710,000/= of 2018. I am mindful that the payment being arrears of travel and subsistence allowances would not be of the same value or rate as it was in 2018, so he has to be paid according to the current rate or market value of 20 the said award to afford without difficulties as he would have done in 2018. It is so ordered. I.D. Aboud JUDGE 30/09/2020 21