Miraji Hemed Majaliwa vs Deutsche Gesellschaft Fur (Civil Appeal No. 169 of 2020) [2023] TZCA 17754 (11 October 2023)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: NDIKA, J.A.. KITUSI. 3.A.. And MASHAKA. J J U CIVIL APPEAL NO. 169 OF 2020 MIRAJI HEMED MAJALIWA ..................... ..... FIRST APPELLANT GERALD BONIFACE KWINGWA (As Administrator of the Estate of the Late ANDREW BONIFACE KWZNGWA) ............................................... SECOND APPELLANT VERSUS DEUTSCHE GESELLSCHAFT FUR TECHNISCHE ZUSAMMENARBEIT GTZ GMBH TECHNICAL COOPERATION - FEDERAL REPUBLIC OF GERMANY G T Z .......... . .................... RESPONDENT (Appeal from the Judgment and Decree of the High Court of Tanzania, Labour Division at Dar es Salaam) (Mwipopo, 3.) dated the 3rd day of April, 2020 in Consolidated Revision No. 9 and 59 of 2019 JUDGMENT OF THE COURT 21stMarch, & 11th October , , 2023 MASHAKA. J.A.: This appeal assails the decision of the High Court of Tanzania, Labour Division at Dar es Salaam in Consolidated Revision Nos. 9 and 59 of 2019 dated 3r d April, 2020. By that decision, the High Court essentially

upheld the award made by the Commission for Mediation and Arbitration (the CMA) in favour of both appellants totalling TZS. 1,466,000.00 being remuneration for the remaining period of service of ten months upon their contracts. The brief background to the matter is that the appellants, Miraji Majaliwa and Andrew Boniface Kwingwa (who died on 11th November, 1997 but is now represented by his brother Gerald Boniface Kwingwa as the administrator of the estate), were employed by the German Technical Cooperation known as Deutsche Gesellschaft Fur Technische Zusammenarbeit GTZ (henceforth the respondent) as accountants on fixed term contracts. At the material time, their contracts were due to end on 30th June, 1993. Following a report to the police, the appellants were arrested in 1992 and charged with the offences of forgery and obtaining money by false pretences. While the matter was pending in court, the respondent wrote them a letter dated 28th September, 1992 terminating their respective contract of employment with effect from 31s t October, 1992. They were also notified that their remaining salaries would be withheld until the criminal charges against them were determined. On 31s t July, 1997, the appellants were acquitted.

In the aftermath of the acquittals, the appellants prosecuted civil proceedings against the respondent in the High Court of Tanzania at Dar es Salaam and this Court. As that effort went unrewarded, they approached the CMA in 2015 and lodged a joint claim of unfair termination. While the first appellant claimed TZS. 932,766,076.00 as unpaid remuneration and compensation for unfair termination, the second respondent's estate sought TZS. 128,195,500.00 for the same heads of claim, In addition, the first appellant prayed to be reinstated in his employment and, in the alternative, he pleaded that his employment be terminated by availing him terminal benefits according to the law. In its decision, the CMA made four key findings: one, that the appellants were employed on fixed term contracts (Exhibit PI) due to end on 30th June, 1993. Two, that their employment was terminated with effect from 31s t October, 1992 vide a letter dated 28th September, 1992 (Exhibit D5). Three, that the termination was unjustified since no reason was cited by the respondent in Exhibit D5. And finally, that the termination amounted to a breach of contract entitling the appellants to compensation in consonance with section 73 (1) and (2) of the Law of Contract Act, Cap. 345. 3

Based on the above findings, the CMA awarded each appellant remuneration for the remaining period of ten months on the contract as compensation for the termination. Accordingly, the first appellant was granted TZS. 611,000.00 whereas the second appellant was given TZS. 855,000.00. The total sum awarded was, therefore, TZS. 1,466,000.00. It occurred that both parties resented the CMA's award. While the appellants lodged in the High Court Labour Revision No. 9 of 2019 challenging the award on six grounds, the respondent raised three grounds before the same court vide Labour Revision No. 59 of 2019. The court duly consolidated the two applications and dealt with them as one matter from which three issues arose: one, whether the CMA had jurisdiction to entertain the matter. Two, whether the termination of the appellants' employment was fair. And lastly, whether the CMA's award was properly procured. The High Court answered the first issue in the affirmative. It was cognizant that since the cause of action in the dispute arose on 31s t October, 1992, the matter ordinarily had to be litigated under the labour laws existing at the time. Nonetheless, citing paragraph 13 (5) of the Third Schedule to the Employment and Labour Relations Act, Cap. 366 (the ELRA) as amended by section 42 of the Written Laws (Miscellaneous

Amendments) (No. 2) Act No. 11 of 2010 and section 24 of the Written Laws (Miscellaneous Amendments) (No. 2) Act No. 4 of 2016, the court held, rightly so, that the CMA had jurisdiction to mediate and arbitrate all disputes originating from the repealed laws brought before it and that all such disputes are deemed to have been duly instituted under section 86 of the ELRA. Turning to the second issue, the High Court initially noted that in terms of the law as at the material time, as stated in Joseph M. Mutashobya v. M/s Kibo Match Group Limited [2004] T.L.R. 242, the respondent as the employer had a right to terminate the appellants' employment on fixed term contracts without giving any reason for the termination. However, the court went on holding, as shown at page 267 of the record of appeal, that: "In the present case , the letter o f termination of contract o f employment shows that the employees were given one month's notice o f termination of their employment as provided in paragraph 4 but were denied payment o f their salaries for the period coming to the date o f termination contrary to paragraph 6 o f the contract According to Exhibit D5, the employees'remaining salaries were withheld in full until [the] charges against them are

settled in court. It is my opinion that the reason for terminating [the] employees' contracts is the charges they were facing in court. The charges which the employer is condemning (sic) that they have to settle in court without giving them right to be heard. Therefore, there was a breach of contract on the part of the employer [Emphasis added] The court also stressed, as indicated at page 268 of the record of appeal, that: "... there was a breach o f contract by the act o f the employer to terminate [the] employees' contracts of employment on allegation of criminal charges without availing them right ofhearing."[ Emphasis added] Concluding with the third issue, the High Court upheld the CMA's view that the respondent's breach of the contracts entitled the appellants to compensation in form of unpaid remuneration for the remaining period of ten months on their contracts. On that basis, the quantum of the compensation awarded by the CMA was left untouched. Inevitably, the consolidated revision was dismissed. Through the services of Mr. Tonny Richard Mushi, learned counsel, the appellants lodged five grounds of appeal: 6

1. That, the High Court erred in law by failing to reverse the decision o f the CMA which awarded the appellants salaries for ten months after finding that the dismissal from employment was unfair.
2. That, the High Court erred in law for failing to properly interpret and apply the law on unfair termination o f employment
3. That, the High Court erred in law for failing to order reinstatement o f the appellants with their rights and remuneration and other benefits from the date o f unfair suspension and termination from work to the date o f reinstatement or to their final payments and compensation for unfair termination.
4. That, the High Court erred in law for failing to find that the appellants'right to be heard before termination was infringed,
5. That, the High Court erred in law for its failure to award general damages after finding that the termination complained o f was unfair for non-compliance with the procedure while the criminal case was stiil pending. At the hearing before us, the appellants, who were self-represented, urged us to allow their appeal upon the written submissions lodged in support of it. On the other hand, Mr. Evold Mushi, learned counsel, who teamed up with Ms. Linda Mafuru, also learned counsel, to represent the respondent, strongly resisted the appeal. In this regard, he made brief oral submissions highlighting the written submissions he lodged in opposition to the appeal. 7

We find it logical to begin with the fourth ground of appeal, which, we think, is plainly misconceived. Since both the CMA and the High Court made a concurrent finding that the dismissal complained of was irregular and that it amounted to a breach of the appellants' contracts, the complaint in the fourth ground is evidently hollow and we dismiss it at once. At the core of the first, second and third grounds of appeal is certainly an attack on the quantum of compensation awarded by the CMA and upheld by the High Court. As stated earlier, whereas the first appellant claimed TZS. 932,766,076.00 as unpaid remuneration and compensation for unfair termination, the second respondent's estate sought TZS. 128,195,500.00 for the same heads of claim. Besides, the first appellant prayed to be reinstated in his employment or that his employment be terminated by availing him terminal benefits according to the law. In support of the above three grounds, it was contended by the appellants that as the courts below found that the termination was unlawful, they ought to have awarded compensation to each of them at the minimum of twelve months' remuneration and that each appellant had to be paid salary arrears and other benefits for the period running from the date of the unfair termination to the date of final payment in terms of 8

section 40 (1) (c), (2) and (3) of the ELRA. It was contended further that the courts below failed to interpret the law on the meaning and incidents of a fixed term contract as stated by section 14 (1) of the ELRA and elaborated by the High Court, Labour Division in Denis Kalua Said Mngombe v. Flamingo Cafeteria, Labour Revision No. 210 of 2010 (unreported). The foregoing contentions were fully answered by Mr. Mushi. He rightly argued that the appellants were not entitled to any of the remedies under section 40 (1), (2) and (3) of the ELRA because the said law was inapplicable in 1992 when the cause of action arose. Indeed, paragraph 13 (1) of the Third Schedule to the ELRA provides to that effect as follows: "13. (1) AH disputes originating from the repealed iaws shall be determined by the repealed substantive laws applicable Immediately before the commencement o f this Act . " We are settled in our mind that the best the appellants could hope for was what the courts below awarded them; that is the remuneration for the remainder of the term of their respective contracts. Certainly, the claim for reinstatement was evidently unjustified, not least because the fixed term contracts expired even before the unfair termination claim was lodged. Consequently, the three grounds under consideration fail. 9

By dint of the foregoing reasoning, the fifth ground of appeal fronting a claim for general damages is equally of no moment. Besides, we have scanned the entire record of appeal and found no attempt by the appellants at justifying any award of compensation beyond what was awarded by the CMA and sustained by the High Court. Ultimately, the fifth ground stands dismissed. In the final analysis, we find no substance in the appeal, which we hereby dismiss. Given the nature of this matter, we make no order as to costs. DATED at DAR ES SALAAM this 7th day of October, 2023. G. A. M. NDIKA JUSTICE OF APPEAL I. P. KITUSI JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL Judgment delivered this 11th day of October, 2023 in the presence of the Appellants in person and Mr. Godfrey Ngassa, learned counsel for the Respondent, is hereby certified as a true copy of the original.