CIVIL APPEAL NO 443 OF 2021 UNIVERSITY OF DAR ES SALAAM VS JEROME TESHA

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LILA. J.A.. FIKIRINI. J.A. And MLACHA. J J U CIVIL APPEAL NO. 443 OF 2021 UNIVERSITY OF DAR ES SALAAM........................... ....... APPELLANT VERSUS JEROME TESHA....................... ......................... ......RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (AboucLJ.) dated the 11th day of December, 2020 in Labour Revision No. 608 of 2019 JUDGMENT OF THE COURT 29* October, 2024 & 6 February, 2025 FIKIRINI. J.A.: The appellant is challenging two decisions of the High Court: the judgment and decree in Labour Revision IMo. 608 of 2019, dated 11th December, 2020, and the ruling and order arising from Miscellaneous Labour Application No. 73 of 2021. And this resulted from the dispute between the appellant, the University of Dar es Salaam and the respondent, Jerome Tesha originating in 2008, when the respondent, was employed as a security guard by the appellant. All was well until 13th June, 2012, when the respondent was effectively terminated for disciplinary reasons, including allegations of beating a student and being drunk while on duty. Dissatisfied with his termination, the respondent referred the matter to the Commission for Mediation and Arbitration (CMA), which found the termination was unfair. Consequently, the CMA ordered the appellant to pay the respondent 12 months' compensation and terminal benefits as required by law. The terminal benefits were largely paid, but the subsistence allowance and the costs of repatriating the respondent and his family to their place of recruitment were not covered. This led the respondent to approach the CMA again (CMA/DSM/KIN/R. 911/17/888) to claim repatriation costs and subsistence allowances. The CMA dismissed the claim, propelling the filing of a Labour Revision No. 608 of 2019, which was heard before the High Court of Tanzania, Labour Division. In its decision dated 11th December, 2020, the High Court decided in favour of the respondent, although the specific amount and extent of compensation were not detailed. Subsequently, the application in Miscellaneous Labour Application No. 73 of 2021 arose, seeking the interpretation of the judgment in Labour Revision No. 608 of 2019. The High Court ruled that it had no jurisdiction to interpret the judgment and dismissed the application. In compliance with the decision in Labour Revision No. 608 of 2019, the appellant opted to pay the respondent on 13th June, 2017. Unhappy, the appellant appealed to this Court, contesting the judgment in Labour Revision No. 608 of 2019 and the ruling in Miscellaneous Labour Application No. 73 of 2021. The respondent filed notices of preliminary objections (POs) on 10th January, 2022 and another on 13th May, 2022. The practice of this Court is where a notice of POs is lodged, the PO to be dealt with first. See: SGS Societe Generale de Surveillance SA & Another v. VIP Engineering & Marketing Ltd, Civil Appeal No. 124 of 2017. Thus, on 29th October, 2024, we allowed parties to address us on the POs before going into the merit of appeal. At the hearing, the appellant was represented by learned Senior State Attorneys Mr. Daniel Nyakiha and Ms. Otilia Rutashobya, while the respondent, Jerome Tesha, appeared unrepresented. Both parties had filed written submissions under Rule 106(1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), which were adopted as part of their oral submissions for or against the POs. The respondent raised four (4) POs, which can be summarized as follows in his first set of POs: one, The notice of appeal contravened Rule 3 90(3) of the Rules, making the appeal time-barred; two, a letter from the appellant to the Registrar High Court requesting copies of the judgment, decree, and proceedings in Labour Revision No. 608 of 2019 and Miscellaneous Labour Application No. 73 of 2021, was not included in the record of appeal, three, the absence of this letter made the notice of appeal defective and four, a letter from the Registrar informing the appellant that the requested documents were ready for collection was also missing from the record, contravening Rule 90 (5) of the Rules. The second set of PO, filed on 13th May 2022, was that the appeal was bad in law for contravening Rule 30(3) of the Rules. While there were written submissions for and against the POs lodged in January 2022, there was none filed to support this objection. The respondent merely reiterated his earlier written submissions and urged the Court to strike out the appeal. In response to the first set of POs, Mr. Nyakiha, learned Senior State Attorney for the appellant, contended that the appellant had lodged the notice of appeal within the requisite period. He argued that the delay in filing the appeal was due to the appellant pursuing Miscellaneous Labour Application No. 73 of 2021, to seek the interpretation of the judgment in Labour Revision No. 608 of 2019. Right after the ruling in the application was issued on 19th August, 2021, the appellant promptly lodged a notice of appeal on 16th September, 2021. As for the missing letters to and from the High Court Registrar, he contended that none was written and, therefore, no letter was issued informing the appellant of the readiness of the documents for collection. Therefore, the notice was filed within the prescribed time. Regarding the second set of PO, Mr. Nyakiha disputed the claim that Rule 30(3) had been violated, asserting that the objection was vague as it did not specify who the unauthorized person was in the appeal process. He urged the Court to disregard the objection, asserting that the appellant’s advocate had properly lodged all the relevant documents. We have considered the submissions and we shall look at the first set of POs, starting with the ground that the appeal is time barred. Rule 83 (2) of the Rules requires that a notice of appeal be filed within thirty (30) days from the date of the impugned decision. The appellant filed a notice of appeal on 16th September, 2021, within the time limit. The Court noted that the appellant had filed Miscellaneous Labour Application No. 73 of 2021, seeking to interpret the judgment in Labour Revision No. 608 of 2019. It would have been premature to file a notice of appeal before the outcome of the application. Therefore, the notice of appeal filed on 16th September, 2021 was timely, and the first PO is overruled. On the second and third POs, the complaint is that two letters to and from the Registrar High Court requesting to be furnished with the necessary documents and that the documents are ready for collection are not part of the record of appeal. The respondent argued that the appeal was time-barred because the letter requesting documents from the High Court and the Registrar’s notification that the documents were ready for collection were never served to the respondent and are not part of the record on appeal. We acknowledge that the two referenced letters are not part of the record of appeal presently before us. Ordinarily, the documents forming the record of appeal are those obtained formally and from the recognized source. However, this fact is negated, since the appellant had filed the memorandum and record of appeal within the prescribed time, and the omission of the two letters had no adverse impact and did not render the appeal defective. We need to clarify this scenario. Any appeal to the Court of Appeal of Tanzania is preceded by a notice of appeal to be filed within thirty (30) days from the date of the judgment. After filing the notice, the Court of Appeal Rules require the appellant, within sixty (60) days thereafter, to lodge his or her memorandum of appeal. The appellant will need certified copies of the judgment, decree, and court proceedings, amongst others, to prepare the memorandum of appeal. To avoid delay in processing the intended appeal and meet the sixty (60) days deadline, a party involved should officially request the Registrar of the High Court to be furnished with copies of the proceedings within thirty (30) days from the date of judgment and make sure the other party is served as stipulated under rule 90 (1) and (3) of the Rules. This then allows a party, if they have not managed to get copies of proceedings within sixty (60) days and hence failed to file a memorandum of appeal timely, to be able to get a certificate of delay. The issued certificate of delay by the Registrar must exclude the time within which the documents were being prepared. This enables a party to continue with the appeal process without being out of time. The consequence of not writing a letter to the Registrar requesting to be furnished with the necessary documents is that a party will not benefit from excluding the period spent in preparing the requested records. It is a letter written to the Registrar, a copy of which must be served upon the other party, which formally determines issuance of the certificate of delay by the Registrar, short of that a party might end up in a precarious position. The appellant had all the requisite documents in the present situation. This is possible considering that the Chief Justice's Circular No. 1 of 2016, Titled Delivery and Issuance of Copies of Judgments, Rulings and Other Court Records, is in operation. Under Sub­ heading: 4.0 Circular Directives, item (d) on Copies of Judgments and Rulings directs thus:- "Record o f the trial proceedings shaii be word processed and proofread as the triai/hearing proceeds and duiy certified copies o f Judgment/Rulings and Decrees/Drawn orders shall be ready for collection within not less than 21 days o f delivery of judgment/ruling concerned." [Emphasis added] Since the appellant was able to secure all the required documents within time, hence was not required to either write a letter to the Registrar requesting to be supplied with the necessary documents or wait for the letter informing the appellant that the documents were ready for collection. The appellant, in the circumstances of this case, did not require a certificate of delay, as the notice of appeal was lodged within thirty (30) days, followed by a memorandum and record of appeal lodged within sixty (60) days. Moreover, there is no complaint that the documents required to file the present appeal were illegally obtained. The second and third POs are, therefore, overruled. The fourth PO is related to the letter from the Registrar that the documents are ready for collection. This ground had already been addressed when considering the second and third POs, and no additional merit was found. As for the PO filed on 13th May, 2022, that Rule 30 (3) of the Rules was contravened, from the submissions, it is evident that the respondent had failed to provide any further explanation or evidence to support this objection. In line with the learned Senior State Attorney's submission, we find the PO vague and unsubstantiated and overrule it. Having overruled all grounds of PO, we can now determine the appeal. The grounds of appeal, for easy reference, are as follows; 1. That, the honourable High Court o f Tanzania (Labour Division) erred in facts and at law by totally disregarding the legal fact that the matter was not condoned by the Commissioner for Mediation and Arbitration. 2. That the honourable High court o f Tanzania (Labour Division) erred in facts and at law by ordering payment o f subsistence allowances while the respondent chose to stay in Dar es Saiaam to pursue his own case against the appellant. 9 3. That, the honourable High Court o f Tanzania (Labour Division) erred in facts and at iaw by not specifying the payable amount o f subsistence aiiowance to the respondent for the aiieged period. Before we proceed with the determination of the grounds of appeal, we wanted to be clear if the grounds raised complied with section 57(3) of the Labour Institution Act Cap. 300 R.E. 2019 (the LIA), as they did not specify which provisions of the law were contravened. Invited to address the question to the Court, Mr. Nyakiha urged us to ignore the words "erred in facts" in the memorandum of appeal and concentrate on the legal points. Illustrating his position, he contended that the first and second grounds are on points of law. The first ground touching on condonation and the second on payment of subsistence allowance. Ground three on the memorandum of appeal, was however, abandoned. Besides, the learned Senior State Attorney adopted the written submission in support of the appeal filed on 14th January 2022. The counsel for the respondent had nothing to say regarding the concern raised by the Court. We agree with Mr. Nyakiha that the two grounds of appeal are pure points of law. However, he did not mention which law was specifically contravened, even if it is preferable and seems more proper for the contravened law to be specifically mentioned; applying overriding objectives, we disregard the omission and allow the appellant to argue on the grounds of appeal as legal grounds. Notwithstanding that we arrived at that decision, we reminded the counsel and parties to adhere to the law by specifying the contravened laws, in the future. Submitting on the first ground of appeal, the appellant argued that since the respondent was terminated on 13th June, 2012 and filed a labour dispute CMA/DSM/KIN/R.911/17/888 on 2nd August, 2017, five years later after his termination, in the absence of condonation, the lodged dispute filed out of 60 days in contravention of Rule 10 (2) of GN No. 64 of 2007; The Labour Institutions (Mediation and Arbitration) Rules, 2007 was time barred. In reply, the respondent submitted that since the issue of time limitation was not raised during the revision in the High Court, it cannot be raised at this appeal stage. He argued that the matter should be looked into just like the appellants' appeal in Labour Application No. 608 of 2019, which was lodged out of time following the conclusion in Miscellaneous Application No. 73 of 2021. The issue for determination is whether Labour dispute No CMA/DSM/KIN/R.911/17/888 was filed within the required time. We have to look at what the law provides to answer this question. In the instant appeal, the governing law is rule 10 (2) of GN. No. 64 of 2007 which states as follows:- "10 (1) Disputes about the fairness o f an employees' termination o f empioyment must be referred to the Commission within thirty days from the date the termination or the date o f the employer made a final decision to terminate or uphold the decision to terminate. 10 (2) all other disputes must be referred to the Commission within sixty days from the date when the dispute arises." [Emphasis added]. Looking into the record, it is evident and there is no dispute that the termination of employment was effected on 13th June, 2012, right within time and determined on Revision in the High Court on Labour Revision No. 608 of 2019 on 11th December, 2020. The dispute on subsistence allowance in CMA/DSM/KIN/R.911/17/888 came later. This was lodged in the CMA on 2nd August, 2017. The lodgment was definitely out of sixty days provided by law. Before the CMA, the respondent and his fellow prayed for an order of reinstatement without loss of remuneration, having found that the termination was substantially fair 12 and procedurally unfair. The CMA ordered payment of 12 months' compensation and severance pay in terms of section 44 of the Employment and Labour Relations Act Cap. 366 R.E 2002 (the ELRA). Although section 44 (1) (f) of the ELRA referred by the Arbitrator provides transport allowance as among the payments to be made by the employer upon termination of the employee's employment, the CMA did not order payment of transport nor subsistence allowance. Being an employer, the appellant ought to have been aware of this provision that she was required to pay, among other entitlements, the transport allowance soon after she terminated the respondent, regardless of the dispute at the CMA. This is a statutory obligation provided under section 43 (1) (c) of ELRA, that transport allowance must be paid after termination, failure of which subsistence allowance comes into play. We wish to recapitulate our stance made in Jasson Samson Rweikiza v. Novatus Rwechungura Nkwama (Civil Appeal No. 305 of 2020) [2021] TZCA 699 (29th November, 2021; TANZLii) that every case must be decided according to its peculiar circumstance. The circumstance of this case suggests that it could not be possible for the respondent to file the dispute of subsistence allowance while his dispute for unfair termination was still proceeding simply because any outcome on the dispute for unfair termination ought to have included transportation 13 allowance and subsistence allowance, if any. Failure to observe timely payment of transport allowance upon termination or delay would unquestionably attract payment of subsistence allowance. Since the CMA did not award a subsistence allowance and the appellant did not timely pay for the transportation allowance as statutorily required, it was not the respondent's fault for requesting it out of time. We are concluding that because the record is clear, the respondent requested it on time when dealing with the initial dispute of unfair termination. Still, since he was not awarded it on the initial dispute, the subsequent dispute was just a continuation of the first one, which was filled well within time. We are of the view that the dispute was filed within time, and there was no need for condonation. The first ground fails. The second ground is that the High Court erred in law by ordering the payment of subsistence allowances while the respondent chose to stay in Dar es Salaam to pursue his own case against the appellant. As said earlier, transportation allowance is a statutory payment upon termination of employees' employment. The employer is legally bound under section 43 (1) (c) of the ELRA to pay the employee transport allowance upon termination and subsistence allowance while awaiting for repatriation. Luckly, we have had an opportunity to discuss the payment of subsistence allowance in several cases in the past, including Juma Akida Seuchago v. SBC Tanzania Ltd (Civil Appeal No. 7 of 2019) [2020] TZCA 319 (18th June, 2020; TANZLii) in which the focus was on the provisions of section 43 (1) (c) of the ELRA, 2004 which provides that:- "43 (1): Where an employee's contract o f employment is terminated at a place other than where the employee was recruited, the employer shall either;- a) N. A. b) N.A. c) Pay the employee an allowance for transportation to the place o f recruitment in accordance with subsection (2) and daily subsistence expenses during the period, if any between the date o f termination o f the contract and the date o f transporting the employee and his famiiy to the piace o f recruitment "'(The emphasis is added). In Kiboberry Limited v. John van der Voort (Civil Appeal No. 248 of 2021) [2022] TZCA 620 (7th October, 2022; TANZLii), we emphasized that daily subsistence allowance has to be paid in terms of section 43 (1) (c) of the ELRA for the period between the date of termination of the contract and the date of transporting the employee and his family to the place of recruitment. How that allowance should be computed has been provided under rule 16 (1) of the Employment and Labour Relations (General) Rules, Government Notice No. 47 of 2017. Pursuant to section 43 (1) (c) of the ELRA, the allowance must be quantified based on a daily basic wage. See: Juma Akida Seuchago v. SBC (supra). Back to the appeal at hand, it is not disputed that the respondent was terminated on 13th June, 2012, and he was paid his transport allowance on 13th July, 2017; therefore, he is entitled to payment of daily subsistence allowance for the period from 13th June, 2012 to 13th July, 2017 which equals to five (5) years and one (1) month, to be more specific it is 1856 days. The appellant's argument that since the respondent was pursuing his case thus, he is not entitled to subsistence allowance covering that period is not appealing at all simply because had the appellant right after termination of the respondent paid him his repatriation allowance timely, she could have discharged her duty, and there could be no arrears on subsistence allowance, the quagmire she is currently in. As alluded to earlier, the respondent was not duty bound to claim for his subsistence allowance in the CMA since it is statutorily paid by the employer upon termination of employment regardless of its fairness. Since the appellant failed to pay the repatriation allowance on time, she is obliged under section 43 (1) (c) of ELRA to pay the subsistence allowance for time the respondent was waiting for repatriation to his place of recruitment. The ground is meritless. That said and done, we find the appeal lacking merit and is hereby dismissed. As a labour matter, no costs are awarded. DATED at DAR ES SALAAM this 30th day of January, 2025. S. A. LILA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The judgment delivered this 6th day of February, 2025 in the presence of Ms. Mastura Ahmed Kamugisha, learned counsel for the appellant and the respondent appeared in person, is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL