Guardian Limited vs Edmund Msangi (Civil Appeal No. 453 of 2021) [2024] TZCA 1117 (15 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: MKUYE. J.A.. MWAMPASHI. 3.A. AND NGWEMBE. J.A.l CIVIL APPEAL NO. 453 OF 2021 THE GUARDIAN LIMITED.........................................................APPELLANT VERSUS EDMUND MSANGI......................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania (Labour Division) at Dar es Salaam) fNanaela, 31 dated the 16th day of October, 2020 in Labour Revision No, 838 of 2019 JUDGMENT OF THE COURT 25th of October & 15th November, 2024 NGWEMBE, JA.: The appellant, The Guardian Limited, appeals against the decision of the High Court of Tanzania, Labour Division (Nangela, J,) dated 16th October, 2020 in Labour Revision No. 838 of 2019. In that revision, the respondent was challenging the decision delivered by the Commission for Mediation and Arbitration of Dar es Salaam (the CMA) dated 10th October, 2019 which was made in favour of the appellant, in Labour Dispute No. CMA/DSM/KIN/R.793/18/176 (the labour dispute).

In order to appreciate the genesis in which the labour dispute arose and later this appeal, we find it apposite to briefly provide the material facts of the matter as per the record of the appeal. It is on record of appeal that the respondent was employed by the appellant since 5th October, 1994 as a journalist and he was promoted to different positions until he became an executive editor prior to his termination on 6th July, 2018. The executive editor had the authority to control the news content before being published in the newspapers. On 1s t July 2018, the President's Office made minor cabinet reshuffle which dropped Hon. Mwigulu Nchemba from the Ministry of Home Affairs. The respondent claiming to act within the scope of the professional interpretive journalism, attributed the removal of Hon. Nchemba from the Cabinet to a previous existing atmosphere between the Ministry of Home Affairs and The Evangelical Lutheran Church of Tanzania (ELCT). Therefore, on 2n d July, 2018, the respondent edited and published in Nipashe Newspaper a headline titled "BARUA KKKT YANG'OA WA2IRI", meaning the letter from ELCT removes the Minister. Almost the same heading and content was published in other newspapers apart from the respondent's publication. The captioned news report triggered some issues from the government officials who complained to the appellant. Following those

complaints, the Human Resource Manager of the appellant served the respondent with an internal memo charging him for permitting publication of a scandalous news report. The respondent was required to show cause as to why disciplinary measures should not be taken against him. It is also in the record of appeal that the respondent denied the charges that the headline was libelous on the reasons that the official correspondence to the public issued by the Chief Executive Officer, State House, on the reshuffle, had the direct inference to gross mistakes committed by officials in the Ministry of Home Affairs, who purported to issue a warning against the ELCT. He thus, justified that the news headline was proper to his interpretation as a professional journalist. However, on 3r d July, 2018 he was summoned to a disciplinary meeting held on 6th July, 2018, which recommended that the respondent be terminated from employment. It was the appellant's finding that the respondent had admitted to the disciplinary offence. Thus, he was served a termination letter with immediate effect. The respondent being dissatisfied with his termination, lodged a labour dispute before the Commission for Mediation and Arbitration (CMA) claiming unfair termination based on biasness and lack of cogent

reason warranting his termination. He thus prayed for compensation, severance pay and eight years salary. At the end of trial, the CMA concluded that the termination of the respondent was both conversed with good reasons and procedural fairness, thus, dismissed the complaint. The respondent was not amused by such an award; thus, he successfully challenged it before the High Court Labour Division, which overturned the decision of the CMA and decided that the termination was unfair both substantively and procedurally, thus, ordered reinstatement without loss of his entitlements. That, decision triggered the instant appeal. The appellant being undeterred, came up to this Court clothed with three grounds of appeal. However, when the appeal came before us for hearing, the appellant successfully sought leave to add one more ground of appeal making a total of four grounds as reproduced hereunder:

1. The High Court had no jurisdiction to hear and determine the revision application from CMA.
2. Despite a clear admission of the wrong doing in respect of publication made by the respondent herein as expressed in exhibit P-8, the learned High Court Judge erred to have established

through a long-drawn process that, there was no admission in the said exhibit contrary to the law. 3) That the High Court Judge erred in law in awarding reliefs which were not asked by the respondent and without considering circumstances of the parties as required by law. 4) That the original proceedings and exhibits in which the High Court decision and subordinate court premised on, were administered contrary to the available law and procedure. Before us, the appellant was represented by Messrs. Killey Mwitasi and Emmanuel Matondo, learned advocates, while the respondent had the legal services of Dr. Rugemeleza Nshalla who teamed up with M r. Nyaronyo Kichere, both learned advocates. M r. Mwitasi having added a new ground of appeal on the jurisdiction of the High Court, as alluded to above, commenced his submission by adopting the written submissions and began with the 1s t ground by referring to us the obvious principle of law that jurisdiction is a crucial issue for any court. He then argued that the High Court proceedings in the impugned labour revision was a nullity because it lacked requisite jurisdiction to try the matter before it.

Giving his reasons as to why the High Court lacked jurisdiction, he pointed out that the revision proceeding before the High Court were initiated without CMA Form No. 10 being filed at CMA. To him that form is the one that initiates the revision proceeding. He addressed the ingredients of the said form to which we will revert later on. To bolster his argument, he made reliance on the cases of Letshengo Bank (T) Ltd v. Salome E. Mwakigomba (Revision No. 322 of 2022) [2023] TZHCLD 1211 (29 March 2023) and Amina Sangali & 200 Others v. St. John's University of Tanzania (Revision Application No. 100 of 2023) [2023] TZHCLD 1382 (4 August 2023). He thus, beseeched the Court to be persuaded by those decisions of the High Court. Also, he referred the decision in Salimu Alphan v. Republic (Criminal Appeal No. 547 of 2016) [2018] TZCA 246 (19 April 2018), where the Court nullified the proceedings of the first appellate court. M r. Mwitasi, implored the Court to follow the above decisions in this appeal and allow the appeal based on incompetence of the appeal. In arguing jointly grounds 2 and 4, Mr. Mwitasi submitted that the High Court unlawfully interpreted the respondent's defence case. He buttressed his argument by referring the Court to the case of Nehemia Kyando Mchechu v. Mwananchi Communication Limited and

Another (Civil Case No. 48 of 2021) [2023] TZHC 15873 (3 March 2023). He insisted to the stance that the respondent had admitted the charge against him, therefore the High Court wrongly interpreted the evidence and reached into a wrong conclusion. On ground 3, the learned counsel argued that, the High Court awarded a relief that was not asked for by the respondent at CMA. He pointed out that the High Court issued an order for reinstatement while the respondent did not ask for it and did not wish to be reinstated. He supported his argument with a decision in the case of Masaka Mussa v. Rogers Andrew Lumenyela & Others (Civil Appeal No. 497 of 2021) [2023] TZCA 17339 (14 June 2023). Mr. Matondo added on what Mr. Mwitasi has submitted and stressed that the respondent had admitted the disciplinary offence he was charged with, hence the High Court was wrong to rule that the respondent was interpreting the incident by such heading. In conclusion, they implored the Court to allow the appeal and quash the proceedings and judgment of the High Court. In turn, Dr. Nshalla forcefully opposed the appeal by responding to each ground. Responding to the 1s t ground, he cited sections 50 and 55 of the Labour Institutions Act, together with the Interpretation of Laws

Act, Cap 1 R.E. 2019, that the relevant rules applicable to the High Court are those from the Labour Court Rules made by the Chief Justice as opposed to the rules made by the Minister of Labour. Therefore, the relevant form for the purpose of instituting revisional proceedings before the High Court is Form No. 4 (LCF4) made under rule 24 (2) of the GN No. 106 of 2007 as opposed to CMA Form No. 10 (CMAF 10). He buttressed his argument by referring us to the case of SOA Tanzania Ltd Trading as Sense of Africa v. Richard Henry Wameyo & 2 others (Revision Application No. 4 of 2024) [2024] TZHC 8914 (23 October 2024). He went further to argue that, under section 3 of the Employment and Labour Relations Act, the High Court Labour Division is the court of equity and not technicalities as were decided by the Court in the case of Pan African Tanzania Limited v. Commissioner General Tanzania Revenue Authority (Civil Appeal No. 172 of 2020) [2021] TZCA 287 (9 July 2021). Thus, he concluded on the ground of jurisdiction by inviting the Court to dismiss it forthwith. Responding on ground 3, Dr. Nshalla was brief, that section 40 (1) of the Labour Institutions Act is clear, that the court may award compensation or reinstatement. Regarding the fourth ground, it was D r.

Nshalla's submission that it was never raised at the High Court, thus should be dismissed. He supported his argument with the case of George Claud Kasanda v. DPP (Criminal Appeal 376 of 2017) [2020] TZCA 76 (27 March 2020). In their brief rejoinder, the appellant's counsel rejoined that this Court was not a proper platform to challenge the legality of the GN No. 47 of 2017 made by the Minister under section 68 of the Employment and Labour Relations Act. While the learned counsel admitted that the GN No. 106 of 2007 was made by the Chief Justice and the rules are applicable to the High Court, however, they maintained that the GN No. 47 is as well valid and applicable to CMA. Regarding the issue of notice, he maintained that the principle is still the same. Having critically reviewed the rival arguments of learned counsel and on thorough perusal to the parties' written submissions, we are inclined to find that the main issue for determination is whether the appeal bears merit. Before we address the grounds of appeal, we find imperative to repeat the firm position of this Court that, the Court is not bound by any decision of the subordinate courts. As an exception to the general rule, the Court is not prevented to affirm the legal position considered by the

subordinate court. It is our observation that, where there is a serious contest between the parties on a certain legal point, like in this appeal, the decision of the Court stands authoritative than those of the High Court. Therefore, we may not be able to pay significant attention to the cited decisions of the High Court, unless when such need arise. Back to the grounds of appeal, the first ground is on jurisdiction, In this point the learned advocate for the appellant argued strongly that the CMA F10 vests the jurisdiction to the High Court in a manner of a notice of appeal. He equated the CMA F10 with a notice of appeal. Therefore, in the absence of that form, the High Court lacks jurisdiction. D r. Nshalia had a different view that the notice which initiates revision before the High Court is Form No, LCF4 as opposed to CMAF10. On our part, we think Mr. Mwitasi got the principle mixed up because our decision in Salimu Alphan v. Republic (supra), the appellant failed to file his notice of appeal before filing the appeal. As such the Court invoked its powers under section 4 (2) of the Appellate jurisdiction Act and nullified the whole proceeding of the High Court. The failure to issue notice of appeal was fatal contrary to mandatory provision of section 361 (l)(a) of the Criminal Procedure Act, Cap 20 R.E. 2019. The section expressly, provides that no appeal shall be entertained unless

the appellant has among other things, given notice of his intention to appeal within ten days from the date of delivery of the impugned decision. There is no such kind of provision under the Employment and Labour Relations Act. We are firm to underscore that, CMAF10 cannot be equated to the notice of appeal under any prevailing circumstance. We take cognizance that CMAF10 made under the GN No. 47 of 2017 and the LCF4 made under the GN 106 of 2007 are different and serve different purpose. LCF4 is a notice of application which is filed before the revisional court and as such it is a necessary part and parcel of the application for revision. Rule 24 (1)(2) of the GN No. 106 of 2007 mandatorily requires that a party wishing to make any application for labour revision before the High Court, must initiate the process by lodgment of notice of application in a form of LCF4. In other words, LCF4 initiates the application for the revision before the High Court Labour Division. For clarity, rule 24 (1) (2) is reproduced hereunder: Rule 24 (1) "Any application shall be made on notice to ail persons who have an interest in the application. (2) The notice o f application shall substantially comply with Form No. 4 in the schedule to these Rules, signed by the party bringing the

application and filed and shall contain the following information- (a) the title o f the matter; (b) the case number assigned to the matter by the Registrar; (c) the relief sought; (d) an address at which that party will accept notices and service o f all documents in the proceedings; (e) a notice advising the other party that if he intends to oppose the matter, that party shall deliver a counter affidavit within fifteen days after the application has been served, failure o f which the matter may proceed ex-parte; and (f) list and attachment o f the documents that are material and relevant to the application." This provision provides in details the contents of the notice of intention to lodge an application for revision. In the contrary, CMAF10 is filed before the CMA with the purpose of prompting the CMA to forward certified copies of the proceedings, judgment, and decree or order to the High Court Labour Division. Even the contents of regulation 34 of the GN. No. 47 of 2017 provide generally establishment of various forms in the third schedule. Such forms do not initiate the revisional process before the High Court Labour Division. If we are to equate it, CMAF10 is equivalent to an official calling for record from the CMA to the High

Court, It is not a document whose absence ousts the jurisdiction of the High Court Labour Division or vitiates the proceeding. We therefore; agree with what Dr. Nshalla has submitted, that the two forms are different and they are used for different purposes. However, we differ with the understanding of Dr. Nshalla on the superiority of the GN No. 106 over the GN No. 47, for obvious reason that each one has its roie to play in the dispensation of labour dispute. We find no conflicting intersection between the two forms. We insist that the two forms serve different purposes. While CMAF10 apply to CMA, LCF4 initiates the revision proceedings before the High Court Labour Division. Considering on the effect and remedy when one of the two forms are missing, the effect and remedy are different. As we observed above, CMAF10 is intended to facilitate movement of record from CMA to the High Court. It is also a common knowledge that when an application under LCF4 with accompanying documents are filed to the High Court Labour Division, the Registrar may issue a calling for record in alternative. Instead of waiting for the Registrar to call for the record from CMA, the legislature made it easy by providing a special form CMAF10 to notify the Arbitrator at CMA to start preparing the records for revision before the High Court Labour Division; and two to notify both 13

the CMA and the other parties and other interested parties to the dispute, that the impugned decision of CMA is intended to be challenged to the High Court. Therefore, when the record has officially been moved from CMA to the High Court, the question of whether or not CMAF10 was filed or not does not arise. On the other side, the absence of LCF4 certainly affect the competence of the revision itself because, LCF4 initiates the process of revision. In other words, it is equivalent to a notice of intention to appeal whose absence is fatal. In respect to the instant appeal, LCF4 was duly filed as seen in pages 201 - 203 of the record of appeal. We therefore, conclude that the absence of CMAF10 is not fatal on any application for revision before the High Court Labour Division. For the above reasons, the appeal was competent and properly instituted before the High Court Labour Division. Considering the 2n d and 4th grounds of appeal jointly, we begin with the assertion aired by Dr. Nshalla that, the Court may ignore ground 4 as it was not raised at the High Court. However, we take note that the appellant's counsel adopted his written submission in which the ground was addressed exhaustively. Also, the issue raised in ground 4 is on a point of law which can be raised at any time and in any stage of the dispute. We thus find it important to consider it exhaustively.

In the submission of the appellant, it was argued that, the arbitrator did not sign after the testimony of every witness. We find there is serious misconception of facts in this ground because the record indicates quite vividly that the arbitrator signed after every testimony and in every order. What can be worth to consider is on failure of the arbitrator to endorse the exhibits. It is a settled legal position that all documentary exhibits after being duly admitted, must be labelled not endorsed. See: SGS Societe Generale de Surveillance SA and Another v. VIP Engineering & Marketing Ltd and Another, Civil Appeal No. 124 of 2017 (unreported). In that appeal, we decided on several factors including none endorsement of exhibit which we concluded that it was fatal if the exhibits were mishandled, not tendered and admitted or when there is a question of authenticity, but where the admission process was followed, a mere inadvertent failure to endorse is curable. Apart from that, under rule 19 (1) of the Labour Institutions (Mediation and Arbitration Guidelines) Rules, 2007, GN. No. 67 of 2007, the arbitrator has powers to determine how the arbitration should be conducted. On the other hand, we have examined the impugned decision, we see that the High Court Judge dedicated considerable energy in consideration of facts and eventually he concluded that the respondent

did not admit to the disciplinary offence, also that he was correct in his defence based on interpretive journalism. At the onset, we find no ground to fault the High Court Judge's finding on this point. The respondent's letter was a clear denial of the charges. We understand that the appellant referred to the tail of the letter while ignoring the beginning of it. The respondent replied as quoted hereunder: "Katika toleo ia Julai 2, 2018 la Nipashe tuiikuwa na kichwa cha Habari kHichosema BARUA KKKT YANG'OA WAZIRI, ambacho katika waraka wako kwangu umetaja ni chonganishi, Lakini katika taaluma ya uandishi wa Habari si chonganishi kwa maelezo yafuatayo: The respondent went on to give reasons to support his denial of the charge. Thereafter he acknowledged that some officers in the government have understood the report differently and promised to accommodate such misconception in the future, by the following statement: "Hata hivyo, nafahamu kichwa hicho kilileta usumbufu mkubwa kwa kampuni kutokana na baadhi ya watendaji serikaiini kutuelewa tofauti. Hivyo nichukue fursa hii kuahidi kuwa nitakuwa

muangalifu zaidi siku za usoni...naomba hatua za kinidhamu zisichukuliwe dhidi yangu” The wording of the letter was express and clear that the respondent denied the charge against him. We do not find any admission in the words of the respondent. We therefore, proceed to dismiss grounds 2 and 4 as unmerited. The 3r d ground of appeal, raises the question of whether, under the circumstance, the High Court was correct to award the respondent an order for reinstatement while the respondent did not ask for reinstatement in his CMAF1, but compensation only. In this ground, the appellant maintains that the High Court mistakenly granted a prayer which was never sought by the respondent. On the other side, D r. Nshalla had the firm view that, the High Court had the powers to award any of the reliefs mentioned under section 40 (1) of The Employment and Labour Relations Act. For clarity the section is reproduced hereunder: "40- (1) Where 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 empioyee 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." There is no dispute that the above provision, entail powers of the CMA or Labour Court to award either reinstatement or reengagement or compensation. It is also noted that in the case of Balton Tanzania Limited v. Victoria Galinoma & Another (Civil Appeal No. 224 of 2019) [2022] TZCA 212 (22 April 2022), we held that the Labour Court or an arbitrator can award any of the reliefs under section 40 (1) of the Employment and Labour Relations Act. But the reliefs referred to in that case were in respect of the statutory and other consequential reliefs and not the main reliefs which in their nature requires to be pleaded in CMAF1. Rule 32 (2) of the Labour Institutions (Mediation and Arbitrations Guidelines) GN No. 67 of 2007 provides the circumstances under which those reliefs may be awarded including reinstatement. In respect of this appeal, it is compelling to reproduce it thus: "32. (1) Where an arbitrator finds a termination to be unfair, the Arbitrator may order the

employer to reinstate, re-engage the employee or to pay compensation to the employee. (2) The Arbitrator shall not order re instatement or re-engagement where- (a) the employee does not wish to be re instated or re-engaged; (b) the circumstances surrounding the termination are such that a continued employment relationship would be intolerable; (c) it is not reasonably practical for the employer to re-instate or re-engage the employee; or (d) the termination is unfair because the employer did not follow a fair procedure. (3) Re-engagement shall be subject to any terms o f employment that the arbitration may decide. (4) For the purposes o f these Rules re instatement means that an employee shall be put back in the job unconditionally. (5) Subject to sub-rule (2), an Arbitrator may make an award o f appropriate compensation based on the circumstances o f each case considering the following factors- (a) any prescribed minima or maxima compensation;

(b) the extent to which the termination was unfair; (c) the consequences o f the unfair termination for the parties, inciuding the extent to which the employee was able to secure alternative work or employment; (d) the amount o f the employee's remuneration; (e) the amount o f compensation granted in previous similar cases; (f) the parties conduct during the proceedings; and any other relevant factors." [Emphasis added] In the instant appeal, at page 14 of the record of appeal, the respondent sought at CMA the following outcome: Compensation, severance payment and eight-year salary. Reinstatement was not among the reliefs wished by the respondent. However, Dr. Nshalla contended that the claim for compensation of eight-year salary meant claim for re engagement. In the contrary, Mr. Mwitasi insisted that the claim for re engagement was not among the reliefs sought by the respondent from the beginning. It is shown in page 159 of the record of appeal, that the respondent sought compensation of shillings 432,000,000/= plus severance allowance amounting to shillings 1,500,000/=, all forming an aggregate of shillings 433,500,000/= only. In the circumstances, the 20

respondent did not seek for re-engagement rather he sought for compensation. It is settled that a wish of the claimant is among the parameters which should be considered in deciding whether an order for reinstatement should be issued. See: Veneranda Maro & Another v. Arusha International Conference Center (Civil Appeal No. 322 of 2020) [2022] TZCA 37 (18 February 2022), whereby, the Court held that section 40 (1) of the Employment and Labour Relations Act must be read together with rule 32 of GN 67 of 2007 in regard to remedies for unfair termination. It appears the High Court listed the available remedies under section 40 (1) of Employment and Labour Relations Act without considering the contents of rule 32 as quoted above and did not address the reliefs preferred by the respondent. In the prevailing circumstances we find the option for reinstatement could not be the best option even if the respondent could have sought it for the reasons that, the dispute arose in year 2018, to date is more than six (6) years; second, the post that the respondent held prior to termination, chief editor, could not remain unfilled for all that long; third, the working environment between the disputants for all those years of loggerheads in any standard cannot be suitable to both parties. We therefore, find an order for reinstatement to the position occupied prior

to termination is not to the interest of both parties. We therefore, allow the third ground of appeal. In the event, and for the reasons so stated, we set aside the relief of reinstatement to the post held prior to termination, instead we order a statutory compensation of twelve (12) months' salary in lieu thereof. In addition to that, the respondent shall be awarded all statutory terminal benefits which shall include repatriation costs, subsistence allowance, severance pay and certificate of service, if were not paid. Since this appeal is a labour matter, each party shall bear his own costs. DATED at DAR ES SALAAM this 14th day of November, 2024. R. K. MKUYE JUSTICE OF APPEAL A. MWAMPASHI JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgement delivered this 15th day of November, 2024 in the presence of Mr. Santino Eligius Kimena, learned counsel for the Appellant and Mr. Nyaronyo Mwita Kicheere, learned counsel for the Respondent, is hereby certified a true copy of the original. VMm A. S. CMUGULU EPUTY REGISTRAR COURTOF APPEAL