Zorica Vejapi vs Wilderness Trail-Karama Lodge (Civil Appeal No.320 of 2020) [2023] TZCA 17567 (29 August 2023)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: KWARIKO. J.A. SEHEL. J.A. And KHAMIS, J.A.^ CIVIL APPEAL NO. 320 OF 2020 ZORICA V EJAPI................................................................................. APPELLANT VERSUS WILDERNESS TRAIL- KARAMA LO DGE ....................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Arusha) (Maige, J.) dated the 29th day of July, 2016 in Labour Revision No. 96 of 2016 JUDGMENT OF THE COURT 21st & 29th August, 2023 KWARIKO, J.A.: This appeal is against the decision of the High Court of Tanzania, Labour Division at Arusha (the High Court) which overturned the decision of the Commission for Mediation and Arbitration (the CMA) at Arusha which was decided in favour of the appellant. The facts of the case which led to this appeal reveal that, the appellant is a Serbian national whereas the respondent is a company incorporated in Tanzania dealing with a hotel related business. It was the appellant who sued the respondent before the CMA. She had claimed

that the respondent had recruited her from Serbia and employed her as a hotel manager and marketing consultant for a term of two years from 1st April, 2015 at a monthly salary of USD 2000.00. She further claimed that the respondent had availed her with a house to stay in. The appellant went on to state that the respondent had processed her work permit and on 28th January, 2016 she paid for relevant fees. She revealed that, on 31st March, 2016 upon receiving her monthly salary, the respondent terminated her employment, locked her out of work place and house whereas her properties were withheld. It was the appellant's further assertion that the respondent had refused to provide her with work permit but she had become aware of it through internet that a Class C work permit had been issued in her favour on the 29th March, 2016. She thus claimed that her employment was illegally and unfairly terminated by the respondent. On the other hand, the respondent denied to have neither recruited the appellant from Serbia, processed any work permit for her, nor executed any employment contract with her. However, the respondent admitted that, the appellant had worked with her from 16th January to 14th March, 2015 as a volunteer and upon expiry of that period, she had never worked with the company again.

The following five issues were framed for determination by the CMA. One ; whether there was an employment contract between the complainant and the respondent; two, whether the respondent was supposed to obtain the complainant's working permit; three, whether there was a breach of the contract by the respondent; four, whether the respondent had locked in personal properties of the complainant; five, whether the complainant was recruited from Serbia; and six, to what reliefs are the parties entitled. At the end of the hearing, the CMA answered all issues in the affirmative. It accordingly awarded the appellant a total amount of USD 42,538.00 being compensation for breach of contract, terminal benefits and subsistence allowance. The respondent was also ordered to repatriate the appellant to Belgrade - Serbia from where she was recruited. Aggrieved, the respondent herein successfully challenged that decision before the High Court by way of revision. That decision did not amuse the appellant hence she came before the Court on appeal with the following six grounds:

1. That\ the High Court Judge grossly erred in iaw and fact by finding and holding that em ployment contract was not valid fo r being signed p rio r to having valid residential and work perm it
2. That, the High Court Judge erred in law and in fact by finding and holding that, the non-citizen cannot be em ployed in Tanzania without possessing valid work perm it while the fact is that before obtaining a work perm it there m ust be em ploym ent contract between prospecting em ployer and employee.
3. The High Court Judge erred in iaw and in fact by finding and holding that the applicant had no valid residential and work perm it between March 2015 and A p ril 2016, while the period o f compensation granted by the Commission was the period when the respondent had procured valid work perm it and paid fo r residential perm it
4. The High Court Judge erred in law and in fact by finding and holding that the applicant is not entitled to any compensation while it was proved before the Commission that there was breach o f contract
5. The High Court Judge erred in law and in fact by finding and holding that the applicant is not entitled to any com pensation while it was proved before the Commission that the applicant was recruited from

Serbia and brought to the country and was not repatriated back to the country o f recruitm ent 6. The High Court Judge erred in fact and in law by granting application for revision w ithout properly analyzing the evidence and testim onies o f parties as proved before the Commission fo r Mediation and Arbitration. In terms of rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009, both parties filed written submissions for and against the appeal. On the day the appeal was called on for hearing, the appellant was represented by Mr. Qamara Aloyce Peter, learned advocate, whereas Mr. Kapimpiti Mgalula, also learned advocate appeared for the respondent. In support of the appeal, Mr. Peter initiated his argument by adopting his written submissions and made some oral clarifications. He argued the first and second grounds of appeal together. He submitted that, contrary to the holding by the High Court, the signing of employment contract is supposed to be done before securing a work permit as provided under section 10 (1) and (2) (b) of the Non- Citizens (Employment Regulation) Act No. 1 of 2015 (henceforth the Act). That, according to the cited provision of the law which is couched in mandatory terms, since the

application for a work permit should be accompanied by a contract of employment, it is clear that the latter should precede the work permit and residence permit. The learned counsel submitted further that the law does not provide a specific time for the Labour Commissioner to issue a work permit after the application is lodged by the prospecting employer. Countering the foregoing submission, Mr. Mgalula argued that section 9 (1) of the Act prohibits a non-citizen to engage in any occupation for reward, profit or non-profit unless he has a valid work permit. He contended further that section 10 (1) of the Act obliges whoever wishes to employ a non-citizen to apply for a work permit to the Labour Commissioner (henceforth the Commissioner) prior to entry by the non citizen. The learned counsel argued further that, although an employment contract is one of the accompaniments to the application for a work permit, the intended employee should have a valid work permit and residence permit before entering into the country which is consistent with section 16 of the Immigration Act [CAP 54 R.E. 2002] (the Immigration Act). It was Mr. Mgalula's further argument that, during the hearing, the appellant admitted that her visa dated 1st December, 2015 to March 2016 showed that she was prohibited to work in Tanzania and it reflected that

she only came to the country as a tourist. He went on to contend that, to prove that the appellant had no work permit, on 24th May, 2016, her lawyer, Prime Attorneys, wrote a letter to the Labour Officer In charge- Arusha complaining that the appellant had worked without a work permit. As to the contention by the appellant's counsel that there is no specific time accorded to the Commissioner to issue a work permit, Mr. Mgalula argued that it is contrary to the cited provisions of law and if that is the case, it will open flood gates of foreigners coming to work in Tanzania without lawful work permit. He also reiterated the evidence given by the appellant's own witness, the then Labour Officer In charge Yusuph Stanley Nzugile (DW5) who stated that a non-citizen is not permitted to work for gain unless he has a work permit and that the work permit is not obtained online as it was claimed by the appellant. We have dispassionately considered these two grounds and the issue to be decided is whether the contract of employment between the parties was valid. For a non-citizen to work in Tanzania on a gainful employment, he should possess a work permit as it is required under section 9 (1) (a) of the Act which provides that/

"Section 9. -(1) A non-citizen sh all not engage in any occupation fo r reward, p ro fit or non-profit unless he- (a) has a valid work perm it that allow s that person to engage in occupation specified in the valid work perm it." Likewise, a prospecting employer of a non-citizen is obliged to apply for a work permit to the Commissioner prior to entry by that non-citizen. Section 10 (1) of the Act which is relevant here, provides that: "Any person who wishes to em ploy or engage a non-citizen in any occupation sh all apply fo r a work perm it to the Labour Com m issioner p rio r to entry by that non-citizen . " Reverting to the instant case, the purported contract of employment of two years between the parties (exhibit E-2) was signed on 1st April, 2015 and was to expire on 31st March 2017, whereas the work permit for a period of two years (exhibit E-13) was issued on 29th March, 2016 and was to last on 28th March, 2018. The appellant's employment was terminated on 31st March, 2016. This means that the appellant worked from 1st April, 2015 to 29th March, 2016 without a work permit as required by the law.

We have also considered the argument put forward by Mr. Peter that the contract of employment was signed ahead of the issuance of the work permit as it is one of the documents required to accompany an application for a work permit. We agree that under section 10 (2) (b) of the Act, a contract of employment between the prospecting employer and employee is one of the documents to be annexed to the application for a work permit of a non-citizen. However, the law is clear that a non-citizen is not allowed to engage in any gainful occupation without a work permit, and that the prospecting employer is required to apply for a work permit of non-citizen prior to his entry. Which means, the contract of employment is supposed to be signed before entry into Tanzania of the non-citizen so that it can accompany the application for the work permit and until the work permit is issued, the non-citizen is neither allowed to enter the country nor start working. This observation answers the argument by Mr. Peter that the law is silent on the time limit to be used by the Commissioner to process the work permit. Additionally, the visa that was granted to the appellant from time to time commencing from 1st December, 2015 to 4th July, 2016 which is comprised in exhibit E-l was stamped to the effect that she was prohibited

to be employed in Tanzania. Therefore, if the appellant worked for the stated period, she did that illegally. Apart from the foregoing, the record shows that during the period she used to work with the respondent, the appellant had not secured a residence permit to enable her engage in a gainful employment. She had only paid for the residence permit on 15th March, 2016 through Standard Chartered Bank (exhibit E-12) and further admitted by the appellant that she had no residence permit. As such, she was living in the country illegally and she engaged in a paid employment illegally. Section 16 (1) of the Immigration Act is relevant in this aspect and provides thus: "No person sh all engage in paid em ploym ent under an em ployer resident in Tanzania except under a perm it issued in accordance with the provisions o f this A ct." In totality, the appellant had neither a work permit nor a residence permit to entitle her engage in a paid employment in the country. The said work permit did not relate to the contract of employment signed by the parties and therefore it was void thus incapable of being breached as claimed by the appellant. In the circumstances, the first and second grounds of appeal have no merit.

As regards the third ground, since we have found that the appellant had neither valid work permit nor residence permit to entitle her to engage in a paid employment, the issue of compensation cannot arise. Even if the purported work permit was issued during the existence of the said contract of employment between the parties, it did not relate to that contract because the law under section 10 (1) of the Act is clear that the work permit should be processed before entry of the non-citizen into the country. This ground too, fails. The fourth and fifth grounds of appeal also relate to compensation for alleged breach of contract. Since we have answered the first and second grounds in the negative, these grounds also have no merit. In the last ground whether the High Court properly analysed the evidence and testimonies of the parties, we are of the view that its decision was based on the evidence of the parties before the CMA. The issues of work permit, residence permit and the contract of employment between the parties upon which the High Court based its decision were covered by the evidence of the parties. For that matter, this ground fails.

In the result, we are satisfied that the appeal has no merit and we hereby dismiss it in its entirety. This being a labour matter, we make no order as to costs. DATED at ARUSHA this 28th day of August, 2023. M. A. KWARIKO JUSTICE OF APPEAL B. M. A. SEHEL JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL The judgment delivered this 29th day of August, 2023 in the presence of Mr. Qamara Aloyce Peter, learned advocate for the appellant and Ms. Judith Reuben holdings brief for Mr. Kapimpiti Mgalula, learned advocate for the respondent is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL 12