IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM

fCORAM: LILA. J.A.. KEREFU. 3.A. And KAIRO. J.A.^

CIVIL APPEAL NO. 188 OF 2018

M/S MKURUGENZI NOWU ENG................ ........................................APPELLANT

VERSUS

GODFREY M. MPEZYA.................................. .................................RESPONDENT

(Appeal from the Judgment and Decree of the High Court of Tanzania
(Labour Division), at Dar es Salaam)

(Nyerere. 3.^

dated the 17th day of August, 2018

in
Revision No, 451 of 2016

JUDGMENT OF THE COURT

15th & 23rd September, 2021.

KEREFU. J.A.i

In this appeal, the appellant, M/S MKURUGENZI NOWU ENG (the

Company) is faulting the decision of the High Court of Tanzania (Labour

Division) in Labour Revision No. 451 of 2016. In that revision, the High

Court (Nyerere, J.) upheld the decision of the Commission for Mediation

and Arbitration (the CMA) in Labour Dispute No.

CMA/DSM/KIN/R.532/14/188 (the Labour Dispute) which was in favour of

the respondent.
 The material facts of the matter obtained from the record of appeal

giving rise to the current appeal indicate that, before the CMA, the

respondent who testified as PW1 alleged that, in 1993 he was employed by

one Peter Marisha Daat (DWI) as a driver at a monthly salary of TZS

650,000.00 until 19th September, 2014 when his employment was unfairly

terminated. It was the testimony of the respondent that for all that period

he was not given any contract of employment despite the fact that he

persistently requested for the same from DWI without success. Therefore,

to prove that he was employed by DWI, the respondent tendered various

exhibits including photographs showing him with a motor vehicle, alleged

to belong to DWI, together with DWI and DWl's family members in

various locations and occassions. The respondent stated that the reason

for his termination was triggered by his act of asking for annual leave for

the year 2013 and 2014. He stated that after the said unfair termination,

he approached the organization which is protecting and defending rights of

domestic workers known as Conservation Hotels and Domestic Workers

Union (CHODAWU). That, CHODAWU tried to solve the matter but failed,

hence he decided to institute a labour dispute against the appellant herein

before the CMA as indicated above. The CHODAWU representative

represented him before the CMA.

The testimonies of Deus Dedit Dati (PW2) and Philemon Mnyaga

Juma (PW3) supported what was testified by PW1 that they witnessed him

working for DW1 and the Company.

On his part, DW1 strongly disputed that the respondent was neither

employed by him nor the Company. DW1 contended further that PW1

could not have been employed by the Company in 1993 because at that

time the said Company was not in existence. He testified further that, the

Company was established and registered in 1999 and to prove that fact, he

tendered a certificate of incorporation No. 38537. He thus challenged the

labour dispute instituted by PW1 against the Company that there was no

any employment relationship between the two.

DW1, however, stated that the respondent was employed by his wife

one Sabena Peter Marisha (DW2) as a domestic servant in a position of a

driver. He stated further that, in that capacity, PW1 used to drive his

children to school and back home, taking his wife for shopping and other

domestic assignments. DW1 further testified that, at some point, PW1

requested for financial assistance to start business and he gave him TZS
3,000,000.00 and DW2 gave him TZS 2,000,000.00. DW2 supported the

testimony of DW1 and clarified that she is the one who employed PW1 as a

driver and a domestic worker to drive her motor vehicle and to take her

children to and from school together with other domestic assignments.

DW2 added that, on top of the said TZS 5,000,000.00, in 2014 she gave

PW1 TZS 40,000.00 to renew his business licence. She thus insisted that, if

there are any claims related with the PWl's employment, she is the one

responsible and a proper person to be sued.

Having heard the parties, the CMA, though made a finding that there

was no employment contract between the appellant and the respondent,

invoked the provisions of section 61 of the Labour Institutions Act, No. 7 of

2004 (Labour Institution Act) and decided that there was presumed

employer/employee relationship between them. That, the respondent was

doing both, the domestic work and the Company's assignments. As such,

the CMA found that the respondent is entitled to the following reliefs:

(a) One month notice pay at TZS 650,000.00;

(b) Annual leave TZS 650,000.00;
(c) Terminal benefits at the tune of TZS 1,750,000.00; and
(d) Compensation for unfair termination TZS 7,000,000.00.
Therefore, the CMA ordered the appellant to pay the respondent a total

sum ofTZS 10,850,000.00.

Aggrieved, the appellant lodged a revision application at the High

Court challenging the CMA's award. The said application was heard exparte

as the respondent did not enter appearance. Having heard the argument

from the appellant, the High Court (Nyerere, J.) though at page 154 of the

record of the appeal also found that there was no contract of any nature

between the parties herein, upheld the decision of the CMA by stating that

the respondent was an employee of the appellant and that the appellant

unfairly and unprocedurally terminated the respondent.

Still dissatisfied, the appellant lodged the current appeal. In the

memorandum of appeal, the appellant has preferred seven grounds of

complaint. However, for the reasons which will be apparent shortly, we do

not deem appropriate, for the purpose of this judgment, to reproduce them

herein.

At the hearing of the appeal, the appellant had the services of

Messrs. Evold Mushi and Godfrey Ngassa, both learned advocates, whereas

the respondent appeared in person without legal representation. It is

noteworthy that both parties had earlier on lodged their respective written

submissions and reply written submissions in support of and in opposition

to the appeal in compliance with Rule 106 (1) and (7) of the Tanzania

Court of Appeal Rules, 2009 (the Rules) which they sought to adopt at the

hearing to form part of their oral submissions.

However, prior to the commencement of the hearing of the appeal on

merit, the Court brought to the attention of the learned counsel for the

appellant the provisions of section 57 of the Labour Institution Act and

requested him to address it as to whether the grounds of appeal lodged by

the appellant are based on legal points as required by that provision.

In response, Mr. Mushi admitted that the second, third, fourth fifth

and sixth grounds of appeal are all based on facts and thus they do not

deserve the attention of this Court. As such, Mr. Mushi prayed to abandon

the said grounds and argue only the first and the seventh grounds of

appeal. The said grounds are to the effect that; -

(1) The learned High Court Judge erred in iaw in concluding that
although there is no contract o f any nature between the
appellant and the respondent there was contract under
presum ption which had no any supporting legal basis;
 (2) The learned High Court Judge erred in iaw by failing to consider
the point o f iaw that the arbitral proceedings before the CMA
was nullity as neither party referred the m atter for arbitration
contrary to the provisions o f section 86 (7) (b) (i) o f the
Employment and Labour Relations A ct o f2004.

Submitting in support of the first ground, Mr. Mushi faulted the

learned High Court Judge for having erroneously interpreted and wrongly

applied the provisions of section 61 of the Labour Institution Act in this

matter. He clarified that the said section is applicable in a labour dispute

where the employer/employee relationship between the parties is not

certain. It was the strong argument of Mr. Mushi that since the respondent

himself testified that he was employed by DW1 and DW2 the wife of DW1

admitted to that fact and there was no any element which created

employment contract under presumption on the part of the appellant, then

section 61 was not applicable in the circumstances.

Mr. Mushi contended further that, after having found that there was

no contract of any nature between the appellant and the respondent, the

first appellate court was supposed to end the matter there and direct the

respondent to institute a labour dispute against the appropriate employer.

In conclusion and on the strength of his arguments, Mr. Mushi urged us to

allow the appeal, nullify the decisions of both, the CMA and the first

appellate court with no order as to costs.

In response, the respondent resisted the appeal. Disputing what was

submitted by Mr. Mushi, the respondent argued that the CMA and the first

appellate court correctly and extensively analyzed the evidence on record

and properly applied the provisions of section 61 of the Labour Institute

Act together with ILO standards and there is nothing to be faulted. It was

his further argument that since before the CMA the appellant admitted that

he had employment relationships with the respondent, the existence of a

written employment contract as the appellant seems to suggest, was not a

necessary condition. As such, the respondent urged us to dismiss the

appeal for lack of merit.

In a brief rejoinder, Mr. Mushi reiterated what he submitted earlier

and insisted for the appeal to be allowed.

On our part, having carefully considered the grounds of appeal, the

submissions made by the parties and examined the record before us, we

wish to start by reiterating a settled principle that, this being a second

appeal, the Court should rarely interfere with the concurrent findings of the

8
lower courts on the facts unless there has been a misapprehension of

evidence occasioning miscarriage of justice or violation of a principle of law

or procedure. See Director of Public Prosecutions v. Jaffari Mfaume

Kawawa, [1981] TLR 149; Mussa Mwaikunda v. The Republic, [2006]

TLR 387 and Wankuru Mwita v. Republic, Criminal Appeal No. 219 of

2012 (unreported). Specifically, in Wankuru Mwita (supra) the Court

stated that: -

"... The law is w ell-settled that on second appeal, the

Court w ill not readily disturb concurrent findings o f facts
by the tria l court and first appellate court unless it can
be shown that they are perverse, dem onstrably wrong
or clearly unreasonable or are a resuit o f a complete
misapprehension o f the substance, nature or non-
direction on the evidence; a violation o f some principle
o f iaw or procedure or have occasioned a m iscarriage o f
ju stice ."

We shall be guided by the above principle in disposing this appeal.

Starting with the first ground, there is no doubt that it raises an issue

of wrong interpretation and application of section 61 of the Labour

Institutions Act by the CMA and the first appellate court. The said section,
among others, provides a number of factors to be considered in

determining who is an employee. For the sake of clarity, the said section

provides that:

"For the purpose o f labour law, a person who works for,

or renders services to any other person is presumed,
until the contrary is proved to be an employee,
regardless o f the form o f contract, if any one or more o f
the follow ing factors is present: -
(a) the manner in which the person works is subject
to the control or direction o f another person;
(b) the person's hours o f work are subject to the
control or direction o f another person;
(c) in the case o f person who works fo r an
organization, the person is a part o f that
organization;
(d) the person has worked for that other person for
an average o f a t least 45 hours per month over
the last three months;
(e) the person is econom ically dependent on the
other person for whom that person works and or
renders services; or
(f) the person only works for or renders service to
one person.
 In the light of the above cited provisions, it is clear that the same is

applicable when there is question of presumption as to who is an

employee. Now, in the instance case, as correctly argued by Mr. Mushi,

there was no dispute as to who was the employee, because in his

testimony, the respondent, although he instituted his case against the

appellant, but he clearly stated that he was employed by Mr. Peter Daat

(DWI) in 1993 as a driver. On the other hand, DW1, although disputed that

he was not the one who employed him, he testified that, the respondent

was employed by his wife (DW2) as a driver and a domestic worker.

Furthermore, in her evidence, DW2 admitted to that fact and she also

clearly testified that she is the one who employed the respondent and

responsible for his claims. For better appreciation of what exactly was

testified by PW1 and DW2 before the CMA on their employment

relationship, we take the liberty of reproducing their testimonies herein

below. At page 70 of the record of appeal the respondent in his own words

testified in chief that: -

"Qn: Kazi ulianza Uni?

Arts: Nilianza kazi kwa Bw. Peter Daat tarehe sikum buki
mwaka 1993.
Qn: Kazi gani?

ii
 Ans: Udereva
Qn, Mshahara?
Ans: Tshs 650,000/="
Our literal translation of the above extract is as follows: -
"Qn: When were you employed?
Ans: I do not remember the date, but I was em ployed
by Mr. Peter Daat in 1993.
Qn: A t which position?
Ans: Driver
Q n S alary?
Ans: Tshs 650,000/="

Upon being cross examined as to whether he had any other employer

apart from Mr. Peter Daati, the respondent testified that: -

"Qn; Eleza Tume m w ajiri wako n i nani?

Ans: Peter Daat.
Qn: M bali na Peter Daat, je kuna mwingine?
Ans: Hakuna. "

The literal translation of the above extract is as follows: -

"Qn: Can you please explain to the CMA who was your
em ployer?
Ans: Peter Daat.

12
 Qn: Apart from Peter Daat, do you have any other
em ployer?
Ans: N o."

Then, DW2 at pages 104 and 106 of the same record when asked on

her relationship with the respondent testified that: -

Qn: Hebu ielezee Tume unamfahamu vip m laiam ikaji?

Ans: Namfahamu Godfrey Mathew Mpezya wakati huo
nilikuwa naishi Sinza nilikuwa nahitaji mtu wa kuendesha
g ari kupeleka watoto shule. Hivyo mwaka 1993 aliletw a
kwangu Hi afanye kibarua cha kuendesha g ari na
makubaliano yetu n i kwamba anapeieka Watoto shufe
haiafu anaenda kupaki kijiw eni ambapo anabeba m izigo
na kazi itakayopatikana.
"Qn. Hebu eiezea Tume hayo makubaliano m likubaliana
mwaka gani?
Ans: 1993.
Qn: Hebu ielezee Tume ulikuwa unatumia utaratibu gani
wa m alipo?
Ans: N i kwamba jio n i anaporudi kinachopatikana nagawa
nusu kiasi kinachobaki kinawekwa kwa a jili ya mafuta ya
gari kesho yake.
Qn. Hebu eleza hayo makubaliano yalikuwa kati ya nani
na nani?

13
 Arts: K ati ya m im i Sabena P.M. Daati na Godfrey M.
Mpezya (Dereva wakati huo)...
Qn: Ungekuwa na madai yeyote ju u ya hayo
makubaliano?... Nani angestahilikudaiw a?
Ans: N i m im i Sabena P.M. Daat ningestahiii kudaiwa.

The literal translation of the above extract is as follows: -

Qn: Please explain to the CMA how do you know the

com plainant?
Ans: I know Godfrey Mathew Mpezya as by that tim e
when I was living at Sinza, I was looking fo r someone to
drive m y m otor vehicle and take my children to school.
So, in 1993 the com plainant was brought to me fo r that
purpose. Our agreem ent was that he drove the children
to school and then he used the car for business.
"Qn. Please explain to the CMA when did you enter into
that agreem ent?
Ans: In 1993.
Qn: Please explain to the CMA the procedure used for
paym ent?
Ans: In the evening, after the said business, I divide the
p ro fit in h a lf and the rem aining balance is kept fo r fuel o f
the follow ing day.
Qn. The agreem ent was between who?

14
 Ansi It was between me, Sabena P.M. Daat and Godfrey
M. Mpezya (the driver by that time)...
Qn: Do you have any daim on that agreement?... Who is
accountabie/responsibie?
Ans: I Sabena P.M. Daat, I am the one accountable and
responsible for the respondent's claims.

From the above extracts, we are in agreement with Mr. Mushi that,

since in their evidence PW1, DW1 and DW2 indicated clearly that DW2 was

the employer of the respondent, it was improper for the CMA and the first

appellate court to invoke the provisions of section 61 of the Labour

Institutions Act.

We have further observed that, there was also a misapprehension of

evidence by the CMA. We say so, because, at the earliest possible, and

upon being served with the CMA Form No. 1 filed by the respondent, in his

defence found at page 38 of the record, the appellant clearly indicated that

he was surprised to note that the respondent had instituted a labour

dispute against the Company while it was clear that he was not an

employee of the same. After perusing the entire record, it is clear to us

that there was a clear confusion before the CMA between the appellant as

a company and DW1 in his personal capacity. This can be easily seen in

15
the decision of the CMA, that although DW1 was not sued by the

respondent in his personal capacity as intimated above, in its decision, the

CMA extensively referred to DW1 as the appellant herein. This can be

evidenced at page 117 of the record of appeal, where after considering the

factors enumerated under section 61 of the Labour Institutions Act, the

CMA concluded that: -

"Kwa kuangalia vipengele vyote vilivyotajwa n i wazi

kabisa m lalam ikaji alikuwa m fanyakazi wa mlalamikiwa
kwani afishiriki kufanya kazi na alipewa vifaa vya
kufanyia kazi ambaio n i g ari ia mlalamikiwa. Ijapokuwa
miaiamikiwa anakataa kuwa s i mwajiriwa wa kam puni iia
kwa m azingira ya Ushahidi uiiotoiewa mbeie ya Tume n i
kuwa mtu huyu aliw ajibika katika sehemu m bili kama
kazi yake iiivyom taka yaani kwa kufuata maamuzi ya
m w ajiri wake ambapo aiiw ajibika katika shughuH za
nyumbani na ofisin i (kampuni)...HU in maana kuwa katika
shauri h iii m azingira yake yanaonekana kuwa
mlalamikiwa alikuwa akiw ajibika katika kumsimamia
m lalam ikaji na hivyo kupeiekea uwepo wa mahusiano ya
kiajira baina yao. N i wazi kabisa hasa pale shahidi Peter
Daat na mkewe Sabena alipokiri kuwa m lalamikiwa
waiikuwa wakimtumia katika shughuH m balim bali yaani
kazi na kum iipa."

16
The literal translation of the above paragraph is as follows: -

"Considering a/i factors mentioned, it is quite dear that

the com piainant was an employee o f the respondent as
he participated in the work and was given the working
equipm ent which is the respondents vehicle. Although
the respondent denies that the com plainant is not an
employee o f the company but in the context o f the
evidence presented before the Commission, the
com plainant worked for the respondent a t home and in
the office. This means that in this case, the
circum stances indicate that the respondent was
responsible for supervising the com plainant and thus
leading to the existence o f employment relations
between them. It is very dear especially when witnesses
Peter Daat and his wife Sabena adm itted that the
respondent was using the com plainant in various
activities, i.e work and paying him ."

Having considered the above conclusion of the CMA, it is our settled

view that, it was improper and a misdirection on the part of the CMA to

make reference to DWI as the appellant and proceeded to issue orders

against the appellant, who according to the evidence on record was

wrongly sued by the respondent as an employer. It is also clear that

17
although DW1 and DW2 were also found by the CMA to be responsible

with the employment of the respondent, they were not parties to the case.

Since the issue of parties to the case is fundamental and central in all

proceedings, the CMA was expected to note that, DW1 who was mentioned

by the respondent as his employer was not a party to the suit. It was

therefore improper for the CMA to proceed with the labour dispute which

had indicated a wrong party to the dispute. As such, having been informed

by the respondent, in his evidence, that his employer was DW1 and not the

appellant, the wrongly instituted labour dispute against the appellant was

supposed to end there and the respondent be advised to take necessary

steps and institute his dispute against the proper party.

We are mindful of the fact that in his submission, the respondent

argued that, since DW1 orally admitted before the CMA to have employed

him, then the decision of the CMA and that of the first appellant court were

correct as the existence of a written employment contract was not a

necessary condition. With respect, we are unable to agree with him on this

matter, because DW1 was not a party to the case. As indicated above, the

issue of parties to the case is a legal and central matter in all proceedings.

18
Therefore, the act of the respondent suing a wrong party had affected the

entire trial as it goes to the root of the matter.

It is unfortunate that the first appellate court did not detect the said

irregularity as it also fell into the same trap, as although it found that there

was no contract of any nature between the parties, it erroneously upheld

the decision of the CMA and also proceeded to issue orders against DW1

and DW2 despite the fact that they were not parties to the case.

It is our considered view that had the first appellate court considered

the said crucial legal issue, would not have upheld the decision of the CMA

which was improper on account of the reasons stated above. In the

circumstances, we find the first ground of appeal to have merit Since the

finding on this ground suffices to dispose of the appeal, the need of

considering the other remaining ground of appeal does not arise.

In the premises, we find that the proceedings before the CMA and

the first appellate court were vitiated. As a result, we have no option other

than to nullify the entire proceedings of the CMA and quash the award and

set aside the subsequent orders thereto. We also nullify the proceedings of

the first appellate court and quash its respective decision and subsequent

orders as they stemmed from nullity proceedings. The respondent is at

19
liberty to institute his labour dispute against a proper party in accordance

with the law.

In the event and for the foregoing reasons, we find merit in the

appeal and allow it. Considering that this is a labour related matter, we

make no order as to costs.

DATED at DAR ES SALAAM this 21st day of September, 2021.

S. A. LILA
JUSTICE OF APPEAL

R. 3. KEREFU
JUSTICE OF APPEAL

L. G. KAIRO
JUSTICE OF APPEAL

The Judgment delivered this 23rd day of September, 2021 in the

presence of Mr. Godfrey Ngassa, learned counsel for the appellant and

respondent ^ rg^ ^ |n person is hereby certified as a true copy of the

original.

B.A. MPEPO
★
DEPUTY REGISTRAR
COURT OF APPEAL

20