MESOMAPYA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LABOUR DIVISION) AT DODOMA LABOUR REVISION NO. 4 OF 2023 (Originating from award of the Labour Dispute No. CMA/DOM/08/2Q23/05/2023) THE TRUSTEE OF MESOMAPYA TRUST FUND............................ APPLICANT VERSUS GODFREY MISANATONDO...................................................... RESPONDENT JUDGMENT Date of last Order: 18/6/2024 Date ofJudgment: 18/9/2024 KHALFAN, J. Parties herein were employer and employee respectively. The applicant hired the respondent to work as a teacher at Chemichemi primary school. The centre of the dispute is on the duration of the contract between the parties. It is on record that the respondent's contract commenced on 1st January 2022 but in December 2022, the applicant issued a letter informing the respondent of the intention not to renew his contract for another period. The respondent, believing that his contract had not expired since he had two-year contract with the applicant, referred the matter before the Commission for Mediation and Arbitration at Dodoma (hereinafter referred i to as the CMA) claiming for an assortment of reliefs such as compensation for the remaining 12 months in his contract. After hearing the matter, the CMA decided in favour of the respondent as it found that parties had two years' contract contrary to the one-year claim by the applicant. Hence, it awarded him the 12 months' salary remaining in his contract. The decision by the CMA irked the applicant; hence, he preferred the instant application with 4 grounds for complaint as follows: 1. That, the Commission for Mediation and Arbitration adjudicated this case whereas the Respondent herein instituted this dispute against wrong and unknown party. 2. That, the Commission for Mediation and Arbitration failed to evaluate the evidence tendered by both parties of this case especially KIELEZO PI and KIELEZO Di which states clearly the period of the employment contract. 3. That, the Commission for Mediation and Arbitration erred in law and facts to pronounce its judgement based on contradictory evidences of the Respondent which actually are based on numerical of dates typed on documents. 2 4 That, the Commission for Mediation and Arbitration erred in law and facts to award the Respondent compensation instead of reinstate the Respondent to the job by considering nature and circumstance of their dispute. It is on record that this application was disposed of by way of written submissions. The applicant was represented by Mr. Godwin Ngongi, learned advocate while the respondent was represented by Mr. Charles Magai, learned advocate. Before going to the merits of the application, there are two issues to resolve. The first one, is on the complaint by the applicant regarding the 1st ground of complaint in which the applicant maintained that the matter before the CMA was instituted against a wrong party. In his submission, Mr. Ngongi argued that, the respondent in this application sued the "Trustee of Mesomapya Trust Fund" before the CMA. He argued that, the respondent sued the wrong party which is also a non -existing entity in eye of laws; as the legal applicant's incorporated name is not "Trustee of Mesomapya Trust Fund" but rather, the "Registered Trustees of Mesomapya Trust Fund" which is incorporated under the Trustees Incorporation Act [Cap.318 R.E 2002]. He therefore maintained that, it was improper for the CMA to adjudicate and determine the said 3 dispute since, in eye of law, the respondent instituted the case against the wrong and non-existing party. He further argued that the award issued by the CMA against the applicant, is un-executable because it is the award against wrong and non­ existing person/Respondent. To buttress his argument, the learned advocate referred to the decision of this court in the case of Mganga Mkuu Kolando CDH vs. Samwel Mwala and others Application for Revision No. 12 of 2019. In reply, the respondent's advocate argued that, the applicant was trying to raise new facts not determined before the CMA. He argued that, the respondent sued the right party who is the applicant herein as she is the one entered in the employment contract with the respondent, as per exhibit Pl and DI which is the employment contract of the respondent entered with the applicant. He wondered how the applicant entered appearance and defended her case before the CMA and before this court while knowing that she was not the one sued. He argued that, the applicant was supposed to prove by tendering the certificate of registration as registered trustee before the CMA or even make reference before this court to prove his submission. He therefore urged the court to regard his submission as mere words. 4 Having considered the parties' rival submissions, it is not in dispute that before the CMA the applicant was sued as "Trustee of Mesomapya Trust Fund." There was no objection raised by the applicant regarding this status until at this court where the applicant raised a claim that its real name is "Registered Trustees of Mesomapya Trust Fund." I have also gone through the employment contract; it is without doubt that the respondent entered into contract with "Trustee of Mesomapya Trust Fund." Therefore, since the applicant never raised any dispute regarding its status, and having considered the contract between the parties, I find the applicant's arguments as an afterthought. Secondly, in his reply submission, the respondent raised a concern that the affidavit in support of the application is defective because paragraph 6 of the affidavit in support of the application, provides for the grounds which arise from labour dispute no. CMA/DOM/74/2022 which is not the matter at hand as the matter at hand arises from labour dispute No. CMA/DOM/08/2023/05/2023. He argued that affidavit is sworn evidence in substitute of oral evidence. He referred to the case of Jackson Sifael Mtarena and 3 Others vs. The Director of Public Prosecution, Criminal Appeal No. 42/2019 Court of Appeal of Tanzania Dpp vs. Dodoli Kapufi & Another, Criminal Appeal No. 11/2008 (both unreported) and s Sauna Vuaifoum vs. Registrar of Cooperative Societies and Three Others [1995] TLR 75. He therefore urged the court to find the application incompetent before the court. Responding to the above issue in his rejoinder, Mr. Ngongi argued that the application has legal grounds to be determined as they are specifically provided under paragraph 6 of the affidavit. He readily conceded the fact that, on the affidavit, there is reference to CMA/DOM/74/2022 instead of CMA/DOM/0/2023/05/2023. But he quickly pointed out that was a mere unintended pen slip error that occurred during the preparation of the said affidavit but which does not defeat the justice. He referred to the case of Victor W. Meena and Another vs. Arusha Technical College Civil Appeal No. 515 of 2020, the Court of Appeal of Tanzania (unreported). I have gone through paragraph 6 of the affidavit in support of the application; indeed, the applicant has referred to CMA/DOM/74/2022. The matter before the CMA arises from Labour Dispute No. CMA/DOM/0/2023/05/2023. I am convinced that the mere insertion of CMA/DOM/74/2022 does not go to the root of the matter. The respondent has not shown how he was prejudiced with such error. Hence, respondent's concern lacks merit. 6 Regarding to the merits of the application, Mr. Ngongi argued jointly the 2nd and 3rd grounds of application. He faulted the CMA as it failed to evaluate the evidence which was tendered by the parties especially exhibit Pl and exhibit DI which state the period of the employment contract between the applicant and respondent herein. He argued that, exhibit Pl states the terms of service in the following words: "The teacher agrees to serve the employer and undertakes that she/he will diligently and faithfully perform the duties of a teacher Grade III/Diploma DEGREE in the TRUSTEES OF MESOMAPYA TRUST FUND SCHOOL at Chemichemi N/P School (Name of School) for a period of Twelve (12) Months from the 1st day of January 2022 to the 31st day of December 2023" He further argued that, it can be deduced from the above clause that, the contract entered between the applicant and the respondent herein was intended by the parties to be the contract of the period of twelve (12) months and not twenty four (24) months, that is from the 1st day of January 2022 to the day of 31st December 2022, and that is the reason the clause is conspicuously clear for itself regarding the duration of the contract. He submitted that, after the lapse of twelve (12) months on the day of 31st December 2022, the applicant wrote a notice (exhibit DI) to the respondent 7 herein to remind him that, his contract was coming to an end and there was no intention and expectation of the applicant to renew the contract of employment with the respondent. He therefore argued that, the contract of employment between the applicant and the respondent herein automatically terminated on 31st day of December 2022 after the lapse of twelve (12) months but the CMA totally failed to evaluate the purpose of the exhibit DI. Mr. Ngongi contended that, the numerical number of a year of 2023, as typed into the employment contract between parties herein, is purely based on the typing error or clerical mistake which was supposed to be cured by the CMA while determining this case. To buttress his arguments, the learned advocate referred to the case of Victor W. Meena and Another vs. Arusha Technical College Civil Appeal No. 515 of 2020 where it was observed that; "the Court can correct a clerical mistake such as where the word "from " instead of the intended word "for" had been written, or an arithmetical mistake such as the figure "108" instead of the intended figure "180" appearing in the judgment It can also correct an error arising from an accidental, that is to say unintended, slip or omission" "For example, if the Court intended to say " we allow the 8 appeal" but by slip of the pen wrote we dismiss the appeal "the word "dismiss" was not intended and is wholly inconsistent with the reasoning in the judgment" The learned advocate further submitted that, the CMA failed to grasp and to identify the intention of parties in the contract rather relied on a vague and contradictory evidences of exhibit P2 tendered by the respondent which actually were not party and parcel of their employment Contract. This is because, what appeared into exhibit Pl is based on a typing error which appears in their employment contract. In reply, Mr. Magai argued that, the CMA properly evaluated the evidences tendered by the parties (thus, exhibit Pl and exhibit DI) as it has been shown at pages 4, 5, 6 and 7 of the CMA award. He further submitted that section 15 (6) of The Employment and Labour Relations Act, [Cap 366 of R.E 2019], (hereinafter referred to as the ELRA) provides that; "If in any legal proceedings, an employer fails to produce contract or written particulars in subsection (1) the burden ofproving or disapproving as alleged term of employment stipulated in subsection (1) shall be on the employer" He also referred to the decision of this court in case of Bakari Jabir Nyambuka vs. QCD Supplies and Logistics, Labour Revision No. 962 of 9 2018(unreported). He argued that, the rationale behind section 15 (6) of the ELRA is that the employment contracts as such, are prepared by the employer and they include the terms and conditions and the duty of the employee is to sign on whatever is prepared by the employer or not to sign. He averred that, when the applicant was given an opportunity to prove the issue of contradiction found in the employment contract issued to the respondent as her duty under section 15 (6) of ELRA, he actually failed to as to why such a contradiction had never been rectified for all such time until he decided to breach the employment contract of the respondent. In addition, he submitted that, the applicant was trying to shift the duty to prove the contradiction found in the exhibits 1, 2 and 3 to the CMA. He contended that, even if it would be true that the parties herein had a fixed term contract of one year, still, the applicant breached the employment contract for several reasons such as, the act of the applicant to include the respondent in the teaching roster of 2023 while it knew his employment contract would come to an end on 31.12.2022. This created an expectation to renew the employment contract of the respondent in the 2023 year of which it would create conducive environment for the respondent to defend it. He argued that, the act of the applicant giving notice of termination of the respondent's employment contract created an expectation to renew his io employment contract for the year 2023. He referred to Rule 4(2) of the Employment and Labour Relations (Codes of Good Practice) GN 42/2007 which reads that; "Where the contract is fixed term contract, the contract shall terminate automatically when the agreed period expires, unless the contract provides otherwise" The learned advocate for the respondent argued that Rule 4 (2) of GN 42/2007 allows the parties to agree otherwise on the way to end their fixed term contract but going through paragraph "E" (1 and 2) of the terms and conditions of the contract (exhibit Pl) between the parties, it provides two ways in which the contract can be terminated. One is by issuing three months' notice or one month's salary in lieu of notice. The 2nd way is termination by completion of service. He also argued that, exhibit P3 a teaching roster of 2023 the applicant included the respondent in that roster. This presupposes that the respondent's services had not come to an end. He argued that, regardless of whatever contract they had, clause "E" (1 and 2) of exhibit Pl does not operate automatically unless the applicant could have a fair reason to terminate the respondent's employment contract. ii He submitted that, the case of Victor W. Meena and Another vs. Arusha Technical College (supra) is inapplicable to the circumstance of the matter since the court cannot correct errors in exhibits rather in judgment or decree. The learned advocate for the respondent argued that, the clear intention of the parties is seen from all exhibits tendered by both parties thus (exhibit PI - Employment Contract, exhibit P2 - Job Identification), all these exhibits show that the contract was supposed to end on 31.12.2023. He maintained that, exhibit P3 the teaching roster of 2023 which was prepared by the employer showed that the respondent was among the teachers who continued to work up to 31.12.2023. In rejoinder, Mr. Ngongi essentially reiterated his submission in chief. I have thoughtfully considered every piece of evidence presented by the parties before the CMA regarding this matter. It is without doubt that, the contract between the parties herein was of a fixed period. What is heavily contested by the parties is the duration of the contract. While the applicant maintained that the contract with the respondent was of 12 months, the respondent forcefully argued that the contract was of two years. Going through the employment contract (exhibit Pl), it shows that the respondent was hired to work for the period of twelve (12) months. But the confusion was brought about by the words "1st January 2022 to 31st December 2023." 12 The respondent argued that going by exhibit Pl which can be read jointly with exhibit P2, the identification card and exhibit P3, the teaching roster shows that the respondent was employed for two years. Having considered the exhibits above, I am convinced that the respondent was employed for 12 months and not 24 months. This is clearly stipulated in the employment contract exhibit Pl, as it reads "the respondent was employed for twelve (12) months." Hence, the respondent's contract commenced on 1st January 2022 and was to expire on 31st December 2022. I am convinced that inclusion of the word 31st December 2023, was a typing error since, from the beginning, it was shown that the respondent was hired for only 12 months. The mere issuance of identification card which expired on 31st December 2023 and mere inclusion of the respondent's name in the roster by itself, did not mean the respondent was employed for 24 months. Therefore, since the parties had fixed time contract, it came at end at the expiry of its duration. Basing on the above discussion, I find that the learned CMA arbitrator erred in holding that the respondent had 24 months contract with the applicant. The applicant was therefore justified to issue the respondent a notice of intention not to renew his employment after the expiry of the 12 months period. Consequently, the CMA's award in favour of the respondent, is hereby quashed and set aside. Having considered the 2nd and 3rd grounds of complaint by the applicant, this court finds there is no need to determine the 4th ground of complaint. The application is granted. This being a labour matter, I will not make an order as to costs. Delivered at Dodoma this 18th day of September, 2024. 14