Kenya Kazi Security vs Julius Chuwa (Civil Appeal No. 194 of 2022) [2024] TZCA 1234 (10 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: KEREFU. J.A., MWAMPASHI. J.A. And FELESHI. J.A.^ CIVIL APPEAL NO. 194 OF 2022 KENYA KAZI SECURITY................................................................ APPELLANT VERSUS JULIUS CHUWA.......................... . .................. . .......................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania, Labour Division at Mwanza) (Sivani, 3.) dated the 13thday of August, 2019 in Labour Revision No. 37 of 2018 JUDGMENT OF THE COURT 04h & ia h December, 2024 KEREFU. J.A.: In this appeal, the appellant, Kenya Kazi Security, is faulting the decision of the High Court of Tanzania (Labour Division) at Mwanza in Labour Revision No. 37 of 2018. In that revision, the High Court (Siyani, J.) quashed and set aside the decision of the Commission for Mediation and Arbitration (the CMA) in Labour Dispute No. CMA/MZ/NYAM/88/2017 (the Labour Dispute). In order to appreciate the context in which the labour dispute arose and later this appeal, we find it apposite to briefly, provide the material facts of the matter as obtained from the record of appeal. It

goes thus; the respondent, Julius Chuwa stated that, he was employed by the appellant at the position of a driver with effect from 14th April, 2011 and his working station was in Mwanza. However, in the course of his employment, and specifically, in 2014, the appellant transferred him to Dar es Salaam, as his new working station, without notifying him and following the legal procedure. That, when he complained to the appellant, he was issued with a transfer letter and while waiting for further instruction and the money to cover the travel costs for the said transfer, his employment contract was terminated without being given the rights to be heard. He stated that, the termination letter was issued to him on 16th June, 2016 and the notice to attend the disciplinary meeting on 20th June, 2016. As such, the respondent contended that, his employment contract was terminated by the appellant without valid reasons and he was not given adequate notice of the said termination as required by the law. On the other side, the appellant admitted to have processed the respondent's transfer from Mwanza to Dar es Salaam as his new working station. That, initially, the respondent accepted the said offer and he was fully paid all the transfer expenses at the tune of TZS 787,810.00. That, later, after receiving the said amount of money, he refused to travel to Dar es Salaam, despite signing of the movement

order on 9th October, 2014, claiming that, the amount paid to him was inadequate to cover the entire travel costs. Following the respondent refusal to go to Dar es Salaam, the appellant conducted disciplinary proceedings against him, which in the end, he was found guilty for gross misconduct. Consequently, and in terms of the findings of the disciplinary proceedings, the respondent employment contract was terminated on 16th June, 2016. It was the further assertion by the appellant that, the respondent was paid his salary arrears for 2015 at the tune of TZS 2,080,000.00. That, since the respondent was officially notified about the said transfer and upon his refusal, all termination procedures were duly complied with and he was duly paid his terminal benefits, his complaint before the CMA had no legal basis. As the process of mediation failed, the dispute was placed before the arbitrator who heard evidence from both parties and, in the end, he found that the termination of the respondent's employment contract was fair, both, in substance and procedure. As such, the respondent's labour dispute before the CMA was dismissed. Unsatisfied, on 20th July, 2018, the respondent lodged a Labour Revision No. 37 of 2018 in the High Court challenging the CMA's award. Having heard the parties, the learned High Court Judge found that,

although, the appellant had valid reasons to terminate the employment contract for the respondent, it did not adhere to the prescribed procedures for termination, thus the respondent was unlawfully terminated. Thus, the learned High Court Judge allowed the revision, quashed and set aside the CMA's award and ordered the appellant to reinstate the respondent in his employment in terms of section 40 (1) (a) of the Employment and Labour Relations Act, Cap. 366 (the ELRA Act) and pay him compensation for twelve (12) months' salaries for unfair termination. Aggrieved, the appellant lodged the current appeal. In the memorandum of appeal, the appellant has preferred the following five grounds:

1. That, the learned High Court Judge erred in law to enter decision against the appellant without proper evidence on record;

2. That, the learned High Court Judge erred in law to find that the termination was procedural^ unfair while the evidence on the record (if any) proves that the respondent was heard and necessary procedures for fair hearing was clearly observed by the appellant;

3. That, the learned High Court Judge erred in law to deliberate on the new factual issue which was not raised at the CMA and no evidence to prove the new issue raised;

4. That, the learned High Court Judge erred in law when held that the respondent be reinstated at work while according to the evidence, the appellant had valid reasons to terminate him and proved that had lost trust o f working with the respondent considering the nature o f work by the appellant; and

5. That, the learned High Court Judge erred in law to make two distinct remedies (reinstatement and compensation) while in law the two remedies are applied separately, in consideration o f the circumstances o f each case. When the appeal was placed before us for hearing, the appellant was represented by Messrs. Innocent Kisigiro and Innocent Bernard, both learned counsel whereas the respondent had the services of Mr. Mutta Erick, also learned counsel. It is noteworthy that, in compliance with Rule 106 (1) of the Tanzania Court of Appeal Rules, 2009 (the Rules), the learned counsel for the appellant had earlier on lodged his written submission in support of the appeal, which he sought to adopt to form part of his oral submissions. On the other side, the learned counsel for the respondent did not file any reply submissions, as he opted to address us in terms of Rule 106 (10) (b) of the Rules. However, prior to the commencement of the hearing of the appeal on merit, we brought to the attention of the learned counsel for the parties the provisions of section 57 of the Labour Institution Act, Cap. 300 (the LIA) and requested them to address us as to whether the

grounds of appeal lodged by the appellant are based on legal points as required by that provision. In response, Mr. Bernard argued that all grounds of appeal in the memorandum of appeal are on legal points and have been submitted in compliance with section 57 of the LIA. He thus urged us to consider all grounds of appeal as they are properly before the Court. On his part, Mr. Erick argued that the second and fourth grounds of appeal are based on matters of facts as opposed to pure points of law contrary to the dictates of section 57 of the LIA. For that reason, Mr. Erick urged us to disregard the second and fourth grounds of appeal and proceed to consider only the remaining grounds. It is a common ground that, any appeal to this Court, from a decision of the High Court, Labour Division, is governed by section 57 of the LIA. The said section provides that: "Any party to the proceedings in the Labour Court may appeal against the decision o f that Court to the Court o f Appeal o f Tanzania on a point of law only". [Emphasis added]. This Court in several occasions, has pronounced itself on the applicability of the above provisions. See for instance, the cases of Bahari Oilfield Services FPZ Ltd v. Peter Wilson, Civil Appeal No.

157 of 2020 [2021] TZCA 250: [11 June 2021: TanzLII] and ST. Joseph Kolping Secondary School v. Alvera Kashushura, Civil Appeal No. 377 of 2021 [2022] TZCA 445: [18 July 2022: TanzLII]. Specifically, in the former case, the Court, while considering the grounds of appeal submitted against the decision of the High Court, Labour Division, stated that: "...We shall first take note that, in terms o f section 57 o f the Labour Institutions Act Cap, 300 R.E. 2019 (hereafter Cap. 300) appeals to this Court have to be on points of law only. Therefore, prima facie, we have no authority to determine all those grounds that do not raise points of law". [Emphasis added]. Now, in the instant appeal, having examined the second and fourth grounds of appeal herein, we are satisfied that the said grounds raised issues of facts as the appellant is inviting this Court to re evaluate the evidence on record contrary to the dictate of the above cited section. Thus, in terms of section 57 of the LIA, we will not determine the said grounds. We therefore turn to the remaining grounds of appeal which raise points of law. Submitting in support of the first ground of appeal, Mr. Bernard argued that, the CMA's proceedings are flawed with procedural

irregularities as the testimonies of all witnesses for both parties were received without oath or affirmation thus, their evidence had no evidential value in the eyes of the law and could not be acted upon to determine the appeal. To amplify further on his point, he referred us to pages 73 to 97 of the record of appeal where witnesses for the parties testified and adduced evidence before the CMA. In addition, Mr. Bernard argued further that, even the arbitrator did not append his signature at the end of each witness' evidence. He contended that, the said omission had rendered the entire proceedings a nullity. To support his proposition, he cited the cases of Joseph Elisha v. Tanzania Postal Bank, Civil Appeal No. 157 of 2019 [2021] TZCA 518: [24 September 2021: TanzLII] and Catholic University of Health and Allied Sciences (CUHAS) Epiphania Mkunde Athanase, Civil Appeal No. 257 of 2020 [2020] TZCA 1890: [11 December 2020: TanzLII]. On that basis, he urged us to nullify the entire proceedings and the award issued by the CMA as well as the proceedings and the decision of the High Court and remit the case file to the CMA for a retrial. In his response to this ground, Mr. Erick challenged the submission of his learned friend by arguing that, all witnesses at the CMA were duly sworn and or affirmed before adducing their evidence. To support his argument, he referred us to pages 80, 84 and 92. On 8

the other aspect, although, Mr. Erick admitted that, the arbitrator did not append his signature at the end of each witness' evidence, he argued that the said omission is not fatal because it is not a requirement of the law. That, pursuant to Rule 19 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, GN. No. 67 of 2007 (the Rules), an arbitrator is empowered to determine the procedure on how the arbitration should be conducted. He insisted that, since in this appeal, the arbitrator chose to authenticate the record of proceedings by signing at the end of proceedings of each day, there was no any omission. He therefore, defended the style adopted by the arbitrator and argued that the appellant was not prejudiced. As such, he urged us to dismiss the first ground of appeal for lack of merit. Having closely considered the contending arguments by the learned counsel for the parties and examined the record of appeal, we agree with the submission made by Mr. Erick that, the appellant's complaint on this ground is not supported by the record. The record of appeal bears it out at pages 80, 84 and 92 that, all three witnesses who testified at the CMA were duly sworn and/or affirmed before adducing their evidence. On the issue of signing of the CMA's proceedings, we are aware that the Rules guiding CMA proceedings during arbitration are silent on that requirement. To that extent, we equally agree with Mr. Erick that,

the style which was adopted by the arbitrator of appending his signature at the end of the proceedings of the day, is in conformity with the provisions of Rule 19 (1) of the Rules. For the sake of clarity, the said Rule provides that: "An Arbitrator has the power to determine how the arbitration should be conducted". In the light of the above position of the law, it is our considered view that, the style adopted by the arbitrator of authenticating the witnesses' evidence at the end of the proceedings of each day, did not cause any miscarriage of justice to the parties. We hold this firm view because, there is no dispute that the parties in this appeal have not questioned the authenticity of the said proceedings with regard to the testimonies of witnesses for both sides. Indeed, this being a record of the proceedings of the trial at the CMA, it cannot be easily impeached as it is presumed to be authentic of what transpired during the trial. Besides, in view of the submissions of the learned counsel for the parties before us, it has not been contended that the substance of the evidence recorded by the CMA does not reflect what the witnesses testified at the trial. In the event, we find the first ground of appeal devoid of merit. On the third ground, Mr. Bernard faulted the procedure adopted by the learned High Court Judge of raising new issue, in the course of composing the judgment without according the parties right to be 10

heard on the same. To clarify on this matter, he referred us to page 272 to 273 of the record of appeal, where the learned High Court Judge intimated that the issue concerning signing of the disciplinary hearing proceedings was not raised at the CMA but, proceeded to consider and determine that issue which he raised suo motu. It was his argument that, the proper procedure which was supposed to be adopted by the said Judge after he had raised that issue, was to invite the parties to address him on the same and thereafter, determine it in accordance with the law. He contended further that the said omission had the effect of rendering the decision pronounced by the learned High Court Judge null and void subject to be nullified. The learned counsel cited Article 13 (6) (a) of the Constitution of the United Republic of Tanzania, 1977 and the case of The Managing Director, Kenya Commercial Bank (T) Limited & Another v. Shadrack J. Ndege, Civil Appeal No. 232 of 2017 [2020] TZCA 389: [11 May 2020: TanzLII] to support his argument. In response, Mr. Erick challenged the submission of Mr. Bernard by arguing that the appellant's complaint on this ground is not supported by the record. To substantiate his argument, he referred us to the evidence of DW2 and PW1 at pages 90 and 92 of the record of appeal, respectively and argued that, both, DW2 and PW1, during the trial, testified on the said issue. In addition, Mr. Erick referred us to i i

page 253 of the same record and argued that, even in their final written submissions, the learned counsel for the parties submitted on that issue. As such, he also urged us to find that the third ground has no merit. Having perused the record of appeal, we find that this is a straight forward issue as, it is apparent at pages 90, 92, 253 and 255 of the record of appeal that the issue of the signing of the disciplinary hearing proceedings was raised by the respondent during the trial and argued by the counsel for the parties in their final written submissions. Therefore, the same was not raised suo motu by the learned High Court Judge as Mr. Bernard would have wanted us to believe. We therefore, agree with the submission by Mr. Erick that, since the parties had adequately utilized their right to be heard on the said issue, the appellant's complaint under this ground is unfounded and not supported by the record. With profound respect, we find the submission by Mr. Bernard to be misconceived and we even find the case of The Managing Director, Kenya Commercial Bank (T) Limited & Another (supra), he cited to us, distinguishable and not applicable in the circumstances of this appeal. We equally find the third ground of appeal with no merit. As for the fifth ground, Mr. Bernard also faulted the learned High Court Judge for awarding to the respondent two distinct remedies 12

(reinstatement and compensation) while in law the two remedies apply separately. To amplify further, Mr. Bernard cited section 40 (1) of the ELRA and argued that the reliefs awarded by the learned Judge are contrary to the spirit of that provision. He clarified that, among and between the sub sections (a), (b) and (c) of section 40 (1) the phrase used is 'OR 'which means an option between or among the available reliefs. He thus insisted that, it was erroneous for the learned Judge to award the two reliefs; 'reinstatement' AND 'compensation' to the respondent, conjunctively. To bolster his proposition, he cited the case of National Microfinance Bank v. Victor Modest Banda, Civil Appeal No. 29 of 2018 [2020] TZCA 35: [26 February 2020: TanzLII]. Finally, and based on his submission, he urged us to allow the appeal, quash the judgment of the High Court and set aside the subsequent orders thereto. In response to this ground, Mr. Erick readily conceded that, it was improper for the learned Judge to award to the respondent the two distinct remedies (reinstatement and compensation) contrary to section 40 (1) of the ELRA. He thus associated himself with the submission made by his learned friend with no more. Having examined the impugned decision in some considerable detail and considered the submissions made by the parties in the light of the record of appeal before us, it is clear to us that both learned 13

counsel for the parties are at one on the interpretation and applicability of section 40 (1) of the ELRA. We agree with them on that aspect, as, indeed, it was improper for the learned High Court Judge to order the two remedies (reinstatement and compensation) conjunctively. It is on record that, in awarding the two remedies, the learned High Court Judge purported to act under section 40 (1) (c) of the ELRA. For the sake of clarity, we will let the section speak for itself. Section 40 (1) of the ELRA reads: "If an arbitrator or Labour Court finds a termination is unfair, the arbitrator or Court may order the employer - (a) to reinstate the employee from the date the employee was terminated without loss o f remuneration during the period that the employee was absent from work due to the unfair termination; OR (b) to re-engage the employee on any terms that the arbitrator or Court may decide; OR (c) to pay compensation to the employee o f not less than twelve months' remuneration." [Emphasis supplied]. 14

It is clear that the word used in the above sub-sections is 'OR' and not 'AND/ Pursuant to section 13 of the Interpretation of Laws Act, Cap. 1 (the Interpretation Act), the use of that word means 'disjunctively/ For the sake of clarity section 13 of the Interpretation Act provides that: "In relation to a written law passed or made after the commencement o f this Act, but subject to section 2 (4), "or", other, and otherwise shall be construed disjunctively and not as implying similarity unless the word similar or some other word o f like meaning is added". In the case of National Microfinance Bank v. Victor Modest Banda (supra) cited to us by Mr. Bernard, when faced with an akin situation and considered the applicability of section 40 (1) of the ELRA, we stated that: Since, it is dear that the word used under section 40 (1) (a) (b) and (c) is "OR" then it was improper for the learned Judge to award the two reliefs conjunctively". Again, in National Microfinance Bank v. Leila Mringo & Others, Civil Appeal No. 30 of 2018 [2020] TZCA 240: [20 May 2020: TanzLII], we emphasized that: 15

"We are settled in our mind that reinstatement or re-engagement or compensation in subsection (1) (a), (b) and (c) of section 40 of the ELRA, must be read disjunctively. The "or" in the subsection is not conjunctive, it is disjunctive. That is perhaps why, in subsection (3) o f the same section, it is provided that if the employer does not wish to reinstate or re-engage, then compensation should be paid". [Emphasis added]. Being guided by the above authorities, we find that, even in the instant appeal, the learned High Court Judge misconstrued the provisions of section 40 (1) of the ELRA and erroneously awarded the two remedies (reinstatement and compensation) conjunctively to the respondent, instead of granting the same disjunctively. In the event, we find the fifth ground of appeal to have merit. In the final analysis, we partly allow the appeal to the extent explained above. Consequently, we set aside the award of the High Court. In substitution thereof, we order the appellant to pay compensation of twelve months' salaries to the respondent for unfair termination of his employment contract in terms of section 40 (1) (c) of 16

the ELRA together with his terminal benefits. Considering the circumstances of this appeal, we make no order as to costs. DATED at MWANZA this 10th day of December, 2024. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL The Judgment delivered this 10th day of December, 2024 in the presence of Mr. Innocent Benard, learned counsel for the Appellant and Mr. Erick Mutta, learned counsel for the Respondent, is hereby certified as a true copy of the original. J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 17