Small Things Tanzania vs Blair Alexander (Civil Appeal No. 423 of 2021) [2024] TZCA 1272 (13 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM: MWARIJA, J.A., LEVIRA. J.A. And MASOUD. J.A.^ CIVIL APPEAL NO. 423 OF 2021 THE SMALL THINGS TANZANIA............................................APPELLANT VERSUS BLAIR ALEXANDER............................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania, Labour Division at Arusha) (Masara, 3.) Dated the 30th day of March, 2021 in Revision Application No. 27 of 2020 JUDGMENT OF THE COURT 10th & 13th December, 2024 MWARIJA, J.A,: This appeal arises from the ruling of the High Court of Tanzania, Labour Division at Arusha in Revision Application No. 27 of 2020. In that application, the appellant, Small Things Tanzania, was the respondent in the Commission for Mediation and Arbitration, Arusha (the CMA) in a complaint, Ref. No. CMA/ARS/ARB/89/2018 (the complaint). The same was filed against it by the respondent herein, Blair Alexander claiming for payment of statutory compensation and general damages on account that, he was unfairly terminated from

employment. The appellant disputed the claim contending that, the respondent had entered into a separation agreement with it. At the conclusion of the arbitration, the CMA found for the respondent. The appellant was aggrieved hence the proceedings and ruling which gave rise to this appeal. The background facts leading to this appeal may be briefly stated as follows: The respondent was employed by the appellant on 14/3/2013. He held the position of Operations Manager earning a monthly salary of TZS 2,200,000.00. After about five years of his employment, his work performance dissatisfied the appellant. He was, as a result, charged before the appellant's disciplinary committee. In the process, he was then given the option to work on a modified job description fitting a reduced salary of TZS 1,500,000.00 per month for six months' performance improvement plan or termination of his employment contract. The respondent opted for termination and signed a separation agreement to that effect between him and the appellant. However, on 31/5/2019, the respondent lodged the complaint before the CMA claiming that he was unfairly terminated. Having heard the complaint, the CMA found that, the respondent was unfairly terminated. It was of the view that, the

separation agreement was signed by the respondent under pressure, having done so through a disciplinary proceedings in which he, was found guilty of the disciplinary offence charged. He was awarded twelve months' salary amounting to TZS 26,400,000.00 being statutory compensation for unfair termination. The appellant was aggrieved by the award and therefore, intended to file an application for revision before the High Court, Labour Division. It could not however, do so within the prescribed time and thus decided to apply for extension of time vide Application No. 27 of 2020. In that application, the appellant sought essentially, for the following order: "That the Honourable Court be pleased to extend time for the applicant to apply for revision o f arbitration award issued by the Commission for Mediation and Arbitration at Arusha in Labour Application No. CMA/ARS/ARB/8/2018." The application was supported by two affidavits: The first one was sworn by Rehema Mussa, the Managing Director of the appellant. In her affidavit, the reasons for the delay in lodging the intended

application for revision were stated in paragraphs 7, 8, 9 and 10 which state as follows: V. That\ immediately after the award was delivered, Advocate Julius Karata communicated with me via email that the award was delivered in favor of the Applicant herein (Printed copy of email conversation is attached herewith as "Al" to form part o f this affidavit) 8. That, I am surprised to receive a copy o f application for execution attached with a judgment that is contrary to the earlier delivered judgement (Copy of the application is attached herein and marked as "A2" to form part of this affidavit) 9. That, upon enquiry, advocate Karata confirmed to the Applicant by swearing an affidavit to confirm that he was present at the Commission on 31st May 2019 when the award was orally delivered and that it was in favor o f the Applicant. (Copy of Advocate Karata affidavit is attached herein wand marked as "A3" to from part of this affida vit). 10. That, this unfortunate incident only came to light on 16th April, 2020 when a copy o f execution was brought to our Advocate, at which point, time to file revision had already lapsed." She states also in paragraph 11 that, the award is tainted with illegality in that;

"(a) The Arbitrator erred in iaw by delivering a typed award that is completely different from the award that was orally delivered before the parties on 31st May 2019. (b) The Arbitrator illegally interfered with the separation agreement between the Applicant and Respondent without any lawfuljustification. (c) The Arbitrator erred in iaw and in fact by holding that there was relationship between disciplinary proceedings and the separation agreement without any proof." With regard to the second affidavit sworn by Julius Karata, the learned counsel for the appellant, the reasons were stated in paragraphs 4, 5, 6, 7 and 8; that: "4. I appeared in the Commission in person on 31st May 2019 for judgment was read by Hon. Arbitrator, Anita Kazimoto and was in favour o f the Respondent I quote: - "Baada ya kusikiliza maombi na utetezi nimekubaliana na upande wa respondent kwamba kuiikuwa na makubaliano kati ya muajiri na muajiriwa ya kuacha kazi hivyo hakuna unfair termination. Mtafuatiiia typedjudgment baadae" 5. After hearing the Judgment I wrote an email to my client informing her o f the victory and she congratulated us for the good work. (Copies o f emails ate attached.)

6. To our surprise\ on 17th May 2020, after the lapse o f 11 months since the judgment was read, I received an application for execution served to us by Mr. Blair's Advocate on record.
7. On perusing the application, I was surprised that the judgment attached is in favor o f Mr. Blair Alexander and thus contrary to the judgment that was orally delivered by the Commission.
8. That, I immediately informed Small Things Tanzania about the application for execution that I received in their behalf and they were also astonished to find that the judgment turned to be in favor o f Mr. Blair Alexander." The application was opposed by the respondent through a counter affidavit sworn by his advocate, Emmanuel Sood. He disputed the contents of the paragraphs of the affidavits reproduced above. As for the execution process, the respondent's advocate admitted existence of a copy of an application for execution but denied the contention that the written judgment of the CMA differed from what was orally pronounced on the date when the same was delivered. The learned High Court Judge considered the reasons for the delay stated in inter alia, the reproduced paragraphs of the supporting affidavits and the submissions of the learned advocates for both parties made by way of written submissions. On the claim that on

31/5/2019 when the judgment was delivered in the presence of the appellant's advocate, he heard the Chairperson pronouncing that the appellant had won the case, the learned High Court Judge found that, the claim was unfounded. He was of the view that, the allegation ought to have been substantiated by evidence other than that which is contained in the learned counsel's affidavit. With regard to the email by which the deponent of the first affidavit was informed that the appellant had won the case, the High Court found that, the same was sent on 24/5/2019, seven days before the date of delivery of the judgment and did not therefore, support the contention that the judgment differed with what was orally pronounced on 31/5/2019. The learned High Court Judge also dismissed the contention that the judgment of the CMA is tainted with illegalities in that; first, the Arbitration interfered without justification, with the separation agreement entered into by the parties and; secondly, that, the finding by the Arbitrator, that, there was relationship between the disciplinary proceedings and the separation agreement was erroneous for want of proof. According to the learned Judge, the contentions were devoid of merit because no such illegalities were apparent on the face of the record.

The appellant was further aggrieved by the decision of the High Court hence this appeal which is predicated on the following four grounds: "1. That ; the learned High Court Judge grossly erred in law and in fact by his refusal to grant extension o f time for the Appellant to file rejoinder submission in support o f the application without considering the reason given for the delay that the Respondent's advocate served the appellant's advocate with the reply submission on the 24h November, 2020 at noon which happened to be the last day scheduled for the appellant to file rejoinder submission. 2. That, the learned High Court Judge grossly erred in law and in fact by his failure to make a proper record in the proceedings of the reasons given by the appellant's advocate in support of his prayer for extension o f time to file rejoinder submissions the reasons given by the respondent's advocate to object the request and the reasons for his refusal to grant extension o f time. 3. That, the learned High Court grossly erred in law and in fact by his failure to hold that the act o f the Arbitrator to interfere with the separation agreement between the appellant and the respondent is a transparent illegality on face o f the record which on itself constitute sufficient reason to warrant extension o f time for the appellant to file an application for revision.

4. That, the learned High Court grossly erred in fact and in law by his failure to analyze and consider facts adduced by the appellant which prove that the applicant had genuine reasons warranting extension o f time." In compliance with rule 106 (1) and (7) of the Tanzania Court of Appeal Rules, 2009 through their advocates, the appellant and the respondent filed their written submission in support of the appeal and the reply thereto, respectively. At the hearing of the appeal, the appellant was represented by Mr. Julius Karata while the respondent was represented by Mr. Emmanuel Sood, both learned advocates. Both of them highlighted their respective written submissions. Submitting in support of the 1s t and 2n d grounds of appeal, Mr. Karata argued, in his written submission that, earlier on 20/10/2020, the court ordered the parties to argue the application by way of written submissions. A schedule was fixed in which the appellant was to file his submission in chief by 3/11/2020 and the respondent was to file reply submissions thereto by 17/11/2020 and rejoinder submission was to be filed by 24/11/2020. The appellant's counsel did not file his rejoinder submissions as scheduled. He admits however, in his written submissions, that although the appellant filed its submissions as per

the scheduled order, a copy thereof was belated served on the respondent on 10/11/2020. The appellant's complaint Is that it was denied the opportunity to be heard on the cause of the delay in instituting an application for revision of the decision of the CMA. Making reference to the proceedings of the High Court dated 23/2/2021 at page 198 of the record of appeal, Mr. Karata argued that, although the counsel who held his brief, Mr. Josephat Msuya, prayed to be granted a week's time to file rejoinder submissions, his prayer was not considered after the respondent's counsel had objected, stating that the delay was of the appellant counsel's own making. The Court then proceeded to fix the date of ruling. Mr. Karata stressed both in his written submissions and when arguing orally in clarification of his submissions that, the ruling which was delivered on 30/3/2021 is erroneous because the appellant was denied the fundamental right to be heard. He cited the Court's decisions in the cases of Ramadhani Mlindwa v. Republic, Criminal Appeal No. 158 of 2015 and Charles Christopher Humphrey Kombe v. Kinondoni Municipal Council, Civil Appeal No. 81 of 2017 (both unreported) to bolster his argument. He also contended that, the learned High Court Judge erred in failing to give 10

reasons for refusing the prayer for extension of time to file rejoinder submissions. In reply to the submissions made by Mr. Karata on the two grounds of appeal above, Mr. Sood argued that, the same are new grounds which were not raised before the High Court during the hearing of the application. He submitted that, in the High Court, the learned High Court Judge determined the application for extension of time, not the points which have been raised in the two grounds of appeal. Citing the case of Simon Godson Macha v. Mary Kinabo, Civil Application No. 3 of 2019 (unreported), the learned counsel submitted that, matters which were not raised at the first appellate court cannot be entertained in this Court. He urged us to dismiss the two grounds of appeal. Having considered the submissions of the learned counsel for the parties on the 1s t and 2n d grounds of appeal, we hasten to state that, we are in agreement with Mr. Sood that, the two grounds raise new matters which were not canvassed and decided by the High Court. The appellant's application in the High Court was for extension of time. The complaint in its 1s t ground of appeal was that the court refused to hear him on his prayer for extension of time to '"file ii

rejoinder submissions in support o f the application without considering the reason given for delay that the respondent advocate served the appellant's advocate with reply submission on 24h November, 2020" The quoted statement is not contained in the record of appeal. That being the position, it is obvious that, the appellant's counsel raised a new matter. In the case of Simon Godson Macha v. Mary Kinabo (supra), the Court cited the case of Melita Naikiminjal and Another v. Sailevo Laibanguti [1998] T.L.R. 120 in which the Court stated that principle in the following words: " Obviously ' the appellants cannot be heard to complain against the first appellate judge, as that judge was not bound to decide the appeal on issues or matters not raised by the appellants. After ah\ both appellants were represented by experienced counsel and judge was entitled to assume that any apparent error which has been omitted by the counsel has been omitted for good cause." Furthermore, by alleging that the statement was made, while the record does not show so, the learned counsel was, in effect, unjustifiably impeaching the court record. According to the record at page 198, what transpired is as follows: 12

"Date: 23/02/2021 Coram: Y. B. Masara, J Applicant: Absent For the Applicant: Mr. Josephat Msuya for Karata, Advocate Respondent: Absent For the Respondent: Reginald Laswai holding brief for Mr. Emmanuel Sood, Advocate. Mr. Josephat Msuya: We pray to file a rejoinder within a week's time. Mr . Reginald: We object as the delay was the counsel's own making. Court: Ruling on 23/03/2021." It is a correct position, as submitted by Mr. Karata that, the prayer by Mr. Msuya was refused following the objection by the respondent's counsel. In our considered view, the cause of the delay must always be established by facts which cannot be proved by an advocate from the bar. Since therefore, there was no application upon which Mr. Msuya could prove that the delay was due to a good cause and not the appellant counsel's own making, he could not be heard to 13

complain that he was denied the right to be heard. He could not be heard on a non-existent application. For these reasons, we find no merit in the 1s t and 2n d grounds of appeal. The same are hereby dismissed. On the 3r d and 4th grounds of appeal, Mr. Karata argued in his written submissions that, there is an illegality in the decision of the CMA, that the Arbitrator interfered with the separation agreement between the appellant and the respondent. He relied on the principle of sanctity of contract. According to the learned counsel, the separation agreement which was signed by both parties should not have been interpreted otherwise by the CMA. He insisted that, the respondent, who offered to terminate his employment contract, understood the contents of the agreement and that, further, there was no evidence led before the CMA to show that, it was due to the disciplinary proceedings, that the respondent opted to terminate his employment. It was argued also that, there was no evidence showing that, while awaiting the result of the disciplinary proceeding, it was proposed to the respondent to choose to enter into the agreement or continue to work on payment of a reduced salary from that which he used to earn. Mr. Karata thus submitted that, since the decision of the 14

CMA interfered with the parties agreement, such decision is tainted with illegality warranting a grant of extension of time to the appellant. In reply to the submissions of the learned counsel for the appellant on the 4th and 5th grounds of appeal, Mr, Sood argued that, the submissions were based on matters of facts not law. It was his argument that, for an illegality to constitute a ground for grant of extension of time, it must be apparent on the face of the record. He cited the cases of Finca (T) Limited and Kipondogoro Auction Mart v. Boniface Mwahikisa, Civil Application No. 589/12 of 2018 in which the Court cited the case of Lyamuya Construction Company Limited v. Board of Registered Trustees of Young Women Christian Association of Tanzania, Civil Application No. 2 of 2010 (both unreported). Mr. Sood added that, in effect, the submissions of the appellant's counsel challenge the merits of the decision of the CMA, not the decision which dismissed the application for extension of time. He argued further that, the appellant's submissions did not address the issue whether the thresholds in establishing sufficient cause for delay stated in the case of Lyamuya Construction Company Limited (supra) were met. In the circumstances, Mr. Sood submitted 15

that, since the appellant has failed to establish that, there was good cause for the delay but the High Court refused to grant extension of time, the two grounds are baseless and should be dismissed. In determining the two grounds above, we wish to begin by pointing out that, initially, when submitting in support of the contention that the decision of the CMA is tainted with illegality, Mr. Karata argued that the CMA decision, which was read in his presence, the Arbitrator pronounced that the appellant had won the case. The complaint is contained in paragraph 11 (a) of the Managing Director's affidavit quoted above. The learned counsel communicated to her about the outcome of the case through email as stated in paragraph 5 of his affidavit. The email is dated 24/5/2019. He went on to state that, later on 17/5/2020, when the appellant was served with the notice of execution, the learned counsel was surprised to find out that, the decision was in favour of the respondent. It was his argument thus that, the written judgment of the CMA dated 31/5/2019 is illegal because it differed with the one which was pronounced on 24/5/2019. When his attention was drawn to paragraph 4 of his affidavit and paragraphs 5 and 9 of the appellant's Managing Director, which are to the effect that, the judgment was 16

delivered on 31/5/2019 in the presence of Mr. Karata, the learned counsel abandoned his argument. That said, we now turn to consider whether there is an illegality in the CMA decision as contended in the 4th and 5th grounds of appeal and as averred in paragraph 11 (b) and (c) of the affidavit of the appellant's Managing Director. It is trite principle that, illegality of a decision may constitute a good cause for grant of extension of time. - See for instance, the case of Transport Equipment v. D. P. Valambhia [1993] T.L.R. 91. In that case, the Court held that:- "When the point at issue is one alleging illegality o f the decision being challenged\ the Court has a duty even if it means extending the time for the purpose to ascertain the point ana\ if the alleged illegality be ascertained, to take appropriate measures to put the matter and the record right..." Although in that case, the decision which was intended to be challenged and which gave rise to the application for extension of time, was that of the High Court, the principle applies to other decisions sought to be challenged in other courts arising from applications like the one in the present case. 17

It is noteworthy however, that whenever the applicant demonstrates existence of an illegality in the decision which is intended to be challenged, extension of time should be granted. The position is that, the illegality must be apparent on the face of the record. - See for example the case of Lyamuya Construction Limited (supra) in which the Court observed that: "Since every party, intending to appeal seeks to challenge a decision either on points o f law or facts, it cannot in my view, be said that in VALAMBHIA S case, the Court meant to draw a general rule that every applicant who demonstrates that his intended appeal raises points o f law should, as of right, be granted extension o f time if he applies for one. The Court there emphasized that such point o f law must be that o f sufficient importance and, I would add that it must also be apparent on the face o f the record, such as the question of jurisdiction; not one that would be discovered by a long-drawn argument or process." In the case at hand, the illegalities alleged by the appellant are derived from the findings of the CMA, that there was a link between the disciplinary proceedings and the respondent's decision to 18

terminate his employment contract. That finding was arrived at after the CMA had considered the evidence, and the intended punishment of the respondent at the conclusion of the disciplinary charges preferred against him. In that regard, we agree with the learned High Court Judge that the alleged point of illegalities not apparent on the face of the record. It is one that will take a long-drawn argument to discover, hence not a sufficient cause for grant of extension of time. - See also the case of Ngao Godwin Losero v. Julius Mwarabu, Civil Application No. 10 of 2015 (unreported). In fine, we agree with the learned counsel for the respondent that the 4th and 5th grounds of appeal are also devoid of merit. In the event, we find that, this appeal has been brought without sufficient reasons and thus dismiss it. Mr. Sood urged us to award costs to the respondent notwithstanding the fact that, in labour disputes, parties bear their own costs. He argued that the appellant acted frivolously in lodging this appeal. With respect to the learned counsel, we are unable to agree with him. Clearly, the appellant was aggrieved by the decision of the CMA and therefore, intended to challenge it. The fact that it has failed to substantiate its grounds does not mean that the appeal was 19

frivolous. We therefore, do not find that, in the circumstances, the appellant should be condemned to costs. We thus make no order to that effect. DATED at ARUSHA this 12th day of December, 2024. A. G. MWARIJA JUSTICE OF APPEAL M. C. LEVIRA JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL The Judgment delivered this 13th day of December, 2024 in the presence of Mr. Emmanuel Sood, learned counsel for the respondent also holding brief for Mr. Julius Karata, leaned counsel for the appellant; is hereby certified as a true copy of the original. 20